Thomas v Shaw [2009] NSWSC 510 (26 June 2009)

Last Updated: 26 June 2009

NEW SOUTH WALES SUPREME COURT

CITATION:
Thomas v Shaw [2009] NSWSC 510


JURISDICTION:
Common Law

FILE NUMBER(S):
2008/20166

HEARING DATE(S):
16/2/09 - 20/2/09
30/3/09

JUDGMENT DATE:
26 June 2009

PARTIES:
Cameron Brock Thomas
(by his tutor Doreen Thomas) (Pl)
William Richard Shaw (1st Def)
Susan Joyce Shaw (2nd Def)


JUDGMENT OF:
Kirby J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
R Royle (Pl)
N Polin (Defs)


SOLICITORS:
Slater & Gordon (Pl)
Moray & Agnew (Defs)


CATCHWORDS:
CIVIL LAW
NEGLIGENCE
child aged 10 on sleep over
fall from bunk bed
no guardrail or ladder
mandatory Australian Standard requiring guardrail and ladder
Civil Liability Act 2002
accident foreseeable and preventable
causation established
DAMAGES
personal injury
issue whether child suffering from organic brain damage or psychiatric illness
significant injury
50% of worst case
drop out of school
loss of earning capacity
other losses.

LEGISLATION CITED:
Civil Liability Act 2002
Evidence Act 1995
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:
Doubleday v Kelly [2005] NSWCA 151
Port Stephens Council v Theodorakakis [2006] NSWCA 70
MD v Sydney South West Area Health Service [2009] NSWDC 22
Kallouf v Middis [2008] NSWCA 61
Nominal Defendant v Gardikiotis [1996] HCA 53; (1995) 186 CLR 49
Campbell v Nangle (1985) 40 SASR 161
Ren v Mukerjee [1996] ACTSC 119
Pellow v NRMA & Anor [2004] NSWSC 152

TEXTS CITED:


DECISION:
1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below.
2. The defendants should pay the plaintiff’s costs.
3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest.



JUDGMENT:

Cameron Brock THOMAS (by his tutor Christine Thomas)
-v-
William Richard SHAW and Susan SHAW

(20166/2008)

I N D E X

1. LIABILITY Para No.
The action. 1
Background. 8
Cameron’s account. 14
The evidence of Joel. 37
Other relevant evidence. 50
Evaluation. 66
The Civil Liability Act 2002. 75
Causation. 97
Obvious risks. 103
Contributory negligence. 107

2. DAMAGES
Background. 111
Cameron before the accident. 116
The immediate impact. 125
Changes in Cameron’s personality. 135
Treatment undertaken. 136
Defendants’ medical reports. 174
The reports of Associate Professor Reid and Dr Roberts. 187
The concurrent evidence of Associate Professor Reid and Dr Roberts. 193
Reports of Associate Professor Quadrio and Dr Lee. 227
Concurrent evidence of Associate Professor Quadrio and Dr Lee. 243
Award for non economic loss. 270
Economic loss. 280
Future superannuation. 293
Out of pocket expenses. 294
Future out of pocket expenses. 295
Past care. 304
Future care. 308
Funds management. 312
Orders. 315

**********
1. LIABILITY

The action.

1 KIRBY J: Cameron Brock Thomas (“Cameron”) (the plaintiff), by his tutor, claims damages against William and Susan Shaw in respect of serious head injuries sustained in a fall on 23 April 2004. Cameron was then ten years old. He had been staying with his friend, Joel Shaw, at Joel’s home at Broadmeadow Esplanade, Bilambil Heights, on the north coast of New South Wales. Joel’s parents, the defendants, were the owners and occupiers of that home.

2 Let me identify at once the primary factual issue on liability. There were two versions as to what Cameron was doing immediately before he fell. The fall occurred within Joel’s bedroom, which was a small room on a concrete slab floor, which had been carpeted. Within the room there was a bunk bed. The bed, and another which was identical, had been purchased by the Shaw’s in 1997 when they lived in Victoria. When purchased each was fitted with a ladder and guardrail. For reasons which I will describe, the ladders and guardrails had been removed from each bed about a year after purchase.

3 On the morning of the accident, Joel occupied the top bunk. He was still in bed. Cameron climbed up the back of the bed and sat alongside him. His legs were dangling over the side. He was positioned not far from Joel’s head, which was on the pillow. They talked.

4 Adjacent to the bunk bed, there was a chest of drawers. It was in front of the window and directly beneath the pillow of the top bunk (Exhibit 4). The controversy concerns how Cameron got down from the top bunk. Cameron gave evidence (supported by his parents, who claimed to be repeating what Joel had said to them) that he was endeavouring to slide down because he was too scared to jump. He placed one foot on the chest of drawers, searching with the other foot for the lower bunk. He then fell, although he had no recollection of the fall.

5 The alternative version was given by Joel in evidence and to some extent was supported by his mother. It was quite different. According to Joel, Cameron dropped both feet onto the chest of drawers. He then stood up, turned towards the centre of the room and jumped. As he did so, he shouted a word which sounded like: “Geronimo”. Joel did not see him land. However, within a short time he heard his cry and knew that something was wrong.

6 So the plaintiff’s case was that he was getting down as best he could from a bunk bed, without the benefit of a ladder or the handhold provided by a guardrail. The defendants’ case was that the accident really had little or nothing to do with the bunk bed. Cameron jumped from the chest of drawers, skylarking, as children do.

7 Before going to the evidence, let me give the background to this claim.

Background.

8 Cameron was born in January 1994. He is the second of four children of Christine and James Thomas. The four children are Bradley (now aged 18), Cameron (now aged 15), Lachlan (11 years) and Brenton (9 years). They slept in bunk beds and had done so for three or four years before the accident (T 16). However, their beds were fitted with ladders and guardrails (T 16). Cameron used the ladder to gain access to the top bunk (T 17).

9 In 2001 the Shaws moved into the neighbourhood. They also had four boys, although they were somewhat older. Cameron regularly went to their home after school to play with Joel. Joel was aged 13 years. The Shaws had a tree house and a trampoline.

10 Mrs Shaw gave evidence that there were two bunk beds. They were brand new when purchased (T 262). The top bunk, in each case, was fitted with a tubular steel guardrail. Mrs Shaw said this: (T 263)

“Q. Now at the time of Cameron’s accident there wasn’t that rail on the top bunk. What happened to it?

A. No, it was removed because it actually broke, not long after we purchased the bed. It – it just pulled out – the bolts stripped out of the framework one day when one of my children was sort of climbing off the bed and so we just removed them both off both bunks.

Q. So when you say not long after you bought it?

A. Within the first year of owning them.”

11 The bunks were also fitted with ladders made of tubular steel (T 263). The ladders had U-shaped hooks at either end (T 263). They did not extend to the floor, but were hooked onto the tubular frame of the bed itself. They were also removed. Mrs Shaw said this: (T 263)

“Q. Now as at 23 April 2004 that ladder wasn’t on the bunk bed in Joel’s room?

A. No. No, it was not.

Q. What happened to that ladder?

A. Again we found that the design was poor, that the children when it was first purchased had trouble with it slipping off all the time and we decided that rather than have someone fall climbing on it we would just remove them.

Q. When was that done?

A. Again early in the time that we owned it, in that first year.”

12 On the evening of 22 April 2004, Cameron was invited by Joel to sleep over at his place. He had never previously slept over at anyone’s place. His mother gave him permission, provided he was back in time for his dental appointment the next morning (Exhibit A: p 174). Mrs Thomas said in cross examination that she had not been inside the Shaws’ home. She did not know the sleeping arrangements (T 27). She was happy, nonetheless, for Cameron to stay (T 28). Mr Thomas said that he believed that the Shaws were responsible people (T 178).

13 Let me recount in greater detail the evidence given by Cameron and Joel. At the time, each was quite young. When giving their evidence, each was obviously providing a recollection five years on. Having compared their evidence, I will then examine other material, including contemporaneous histories provided to doctors and hospitals, for the light it sheds upon the reliability of each version.

Cameron’s account.

14 Cameron said that he woke up shortly after 7.00 am (T 84). Joel was still asleep. When he awoke, Joel invited him to the top bunk (Exhibit A: p 170). One end of the bunk was hard up against the wall, adjacent to the window (Exhibit 4). There being no ladder, he climbed up the other end (Exhibit A: p 170, para [11]). They talked for a while before Cameron noticed the time. He then climbed down. He described what he did in his affidavit in these words: (Exhibit A: p 170)

“13. There was a chest of drawers next to the bunk bed. There was no ladder to climb down from the bunk bed. I tried to get off the top bunk by facing out from the bed, towards the computer. I put my right foot on the chest of drawers and twisted my body to the left to get my left foot on the bottom bunk. I don’t remember if my left foot reached the lower bunk.

14. The next thing I remember of the morning of 23 April 2004 was being at home in my bed. I felt pain in my head and neck. I remember saying words to the effect ‘I can’t stand this’ and ‘I wish this didn’t happen to me’. I said to mum words to the effect ‘Mum can you get me a Panadol’.”

15 When giving evidence, Cameron elaborated. He said he talked with Joel for about ten minutes (T 85). He sat on the end closest to the window, near the pillow (T 84). He then described how he got down: (T 85/86)

“Q. How did you get down?

A. I put my right foot on the chest of drawers.

Q. First, were you up the top?

A. Yes.

Q. Take it little more slowly because his Honour wants to know what you remember of this accident?

A. Yes.

Q. You were sitting on the top near the pillow. Take it step by step; what did you do first?

A. I started to lean forward.

Q. Where were your legs?

A. My legs were hanging off the bed.

Q. Which way were they facing?

A. They were facing the wall, so my back was touching the bed.

Q. So, you were facing out from the bunk?

A. Yes.

Q. Take it step by step?

A. I went to slowly move down and I put my right foot on the chest of drawers.

Q. Whilst you were doing that, where were your two hands?

A. On the bed, on either side of my body.

Q. You described your two hands as being either side of your body?

A. Yes, on the brace. Then, I tried to put my left foot down to the lower bunk.

Q. Then what?

A. And that is when I fell.

Q. Do you remember anything else after that?

A. I just remember being at the Dr Elliot's. That is the first thing I remember after that.”

16 In chief, Cameron was asked the following: (T 86)

“Q. Did you climb on the bunk bed at any time before the accident, in the time you visited before the accident?

A. No.

Q. Do you remember any time when you might have climbed on the bunk bed?

A. No. Sorry.”

17 When cross examined, counsel for the defendant put that the plaintiff’s account was a reconstruction, based upon conversations with his parents. The examination was as follows: (T 117/118)

“Q. I want to suggest that the evidence you have given about the way you were getting out of the bunk bed?

A. On the date of my fall?

Q. On the date of your fall, is actually a reconstruction. It is not actually a true memory but it is a reconstruction based on conversations you have had with your mum and dad and others?

A. No, it is my true memory.”

18 Cameron acknowledged that he had spoken to his parents about what had happened (T 112). He denied that he had been influenced by what they had said to him (T 113).

19 Counsel then put an alternative version. The plaintiff was shown a sketch plan depicting the chest of drawers under the window adjacent to the pillow on the bunk bed. The following was put: (T 119)

“Q. And at that point your right leg was actually in contact with the top of the chest of drawers?

A. No, my right leg, to contact with the chest of drawers I had to lower myself a bit.

Q. How much, do you remember?

A. No.

Q. You don't remember?

A. No, I'm not sure.

Q. You see, I want to suggest to you that you were actually seated at a position closer towards the wall with both of your legs over the chest of drawers, both of your feet, legs and feet over the chest of drawers?

A. No.

Q. Do you understand what I am putting to you?

A. Yes.

Q. You disagree with that?

A. Yes.

Q. I want to suggest to you then that you lowered yourself down on to the chest of drawers and in fact stood on the chest of drawers?

A. No, that is incorrect and there was no room to stand on the chest of drawers.”

20 The cross examination continued: (T 119/120)

“Q. I want to suggest to you that you then went to jump off the chest of drawers and in doing so you slipped forward and that is how you fell?

A. No.

Q. And I want to suggest that at that time, just at the time you were making the jump, you made a noise or called out, probably something like ‘Geronimo’?

A. No.

Q. You are chuckling as I say that to you?

A. Yes.

Q. Why are you chuckling?

A. Because I find it absurd.

Q. When I say the word ‘Geronimo’, does it have some particular connotation for you?

A. No.

Q. It doesn't have a connotation of someone jumping?

A. I have never said that word, I never use that word.

Q. But you say, do you, that you have a very clear memory and your clear memory is that that is not how it happened?

A. Yes.”

21 There was an aspect of the plaintiff’s evidence, according to the defendants, that demonstrated that his recollection was suspect. Cameron gave evidence that Joel’s brother, Luke, occupied the bottom bunk. He had slept on a mattress on the floor. There was a good deal of evidence that touched upon that issue. Some evidence suggested that Cameron may be right, and other evidence that he was clearly wrong. As the defendants remarked in submissions, not a lot turns upon the discrepancy (DS: para [29]). If a finding were called for, I think it probable that Cameron was wrong. But he may well be right. It was his first sleep over. His recollection may well be more accurate than the recollection of those who were remembering a peripheral detail much later. In the end, for me, the matter had no real bearing upon Cameron’s reliability.

22 The suggestion was also made that the plaintiff had told various doctors that he had no memory of what happened. The following was put to Mrs Thomas: (T 31)

“Q. And you're aware, aren't you, that he has told many of the doctors that he has no recollection of the incident?

A. I know he has told me he does not recall the fall, because I questioned him re that. A ‘fall’, in the English language, is a fall from gravity; that actual movement moment that he slipped and fell, blank out: Does not recall the actual fall itself, but he very clearly recalls what led to the fall.

Q. For example, and I won't go through every single medical report, but I have got one here, when he saw Dr Roberts, that he reported he couldn't remember the incident but sometimes wished he could?

A. Uh-huh (Witness nodded).

Q. Is that right?

A. As I explained, he cannot remember the fall, because I sought clarity on that for myself. He could not remember the actual fall, but he certainly remembers what led up pre- the fall.”

23 Counsel’s question was in fact misleading, although there was no objection. The report of Dr Roberts included these words: (Exhibit 5: p 6, para [1.29])

“1.29 Master Thomas told me that it occurred on 23.4.04. He told me that he does not actually remember it. He indicated that his last actual memory was of putting his foot down on the bench as there was no ladder or protective railing and ‘then blanked out’. He told me that his next actual memory was of being at home in bed ...”

24 Cameron provided similar accounts to other doctors. Mrs Thomas wrote a letter to the insurance investigator about one year after the accident, in which she agreed she said: “Cameron has no memory of what actually happened, so we’re relying on the information supplied to us by the Shaw family” (T 33). Mrs Thomas explained: (T 33)

“Initially Cameron was feeling very confused. He knew he fell off the bunk. He very clearly, when he went through a period, I suppose about maybe three, four, five months after, of feeling very confused, he was very clear to me subsequently, and to other doctors, as is reported in all the medical reports, that he fell from the bunk bed and how he actually came to be upon it.”

25 Mrs Thomas, in this evidence, was adverting to an aspect of Cameron’s psychiatric condition some months after the incident, which will be described below.

26 There was, nonetheless, one matter in respect of which Cameron’s evidence appeared to be inconsistent, namely, whether he had been on the top bunk before the day of the accident. The cross examination was in these terms: (T 115)

“Q. Now, you have been, I think you said, into Joel's room many times before in the year or so that you used to visit?

A. Yes.

Q. I think you said you visited their house every second day or so?

A. Yes.

Q. You had been up on to the top bunk previously, hadn't you?

A. Yes.

Q. How often do you think over that year or so? Was it every time you went or every second time?

A. No, every couple of times. Not every week or every month, I never really went up on that bed.

Q. I'm sorry, I think you said you had been up previously but you had never really went up on the bed?

A. Yes, I had been up previously but not every day I was there.”

27 I then intervened and asked the following question: (T 115/116)

“Q. Are you able to say roughly how many times?

A. I can't remember that far back. I wouldn't go up every day we were there. If any time I was there we would either be outside or on the computers playing a game.

Q. Are you talking one or two, 20 or 30?

A. One or two times.

Q. But it may be more than that?

A. Yes.”

28 The defendants attached some significance to that discrepancy. However, Cameron was not taken to his previous testimony and asked to explain. When one looks at the question asked in chief, it was perhaps a little confusing. Counsel used the phrase “climb on the bunk bed” (T 86) (supra para [16]), rather than the more direct question in cross examination, “been up on the top bunk previously” (T 115) (supra para [26]). It will be noticed that the plaintiff in chief, after his second answer, said, “sorry”, which may suggest he was not following (supra para [16]).

29 I do not attach much importance to this difference. That said, I accept that Cameron had been on the top bunk a number of times before, although I believe not often. Ultimately, Joel was asked the following question in chief, although his answer appeared at the time, and now, to have been a guess. Joel said this: (T 296)

“Q. You said that before Cameron's fall you had seen him at times sitting up on the top bunk in your bedroom, but you don't specifically recall seeing him getting up and down?

A. Yes.

Q. How many times roughly would you have seen him sitting up on the top bunk, this is before the fall?

A. Roughly, probably about fifty or something.”

30 On that issue, if it matters, I prefer Cameron’s estimate of “a couple of times”.

31 However, Cameron was asked how he got up onto the top bed on the occasion of the accident, and up and down on occasions before the accident. There were photographs of the bunk bed (Exhibit 1). The photographs showed the mattress base was some distance from the ground with a horizontal tubular steel strut several feet above. There was then a gap and then the base of the top bunk, with a rounded arch at either end (Exhibit 1). In cross examination, Cameron said this: (T 114/115)

“Q. I think you are describing probably the end of the bunk bed?

A. The end of the bunk bed.

Q. Coming up from ground level there is a horizontal railing?

A. Yes.

Q. You put one foot there?

A. Yes.

Q. And above that there is another horizontal railing?

A. I put one foot there.

Q. Above that is another horizontal railing?

A. I put my right foot up there and stood myself up.

Q. And climbed over the arched bit at the top?

A. Yes.”

32 Counsel added: (T 115)

“Q. I take it you didn't have any problem getting up that way?

A. No.”

33 Cameron acknowledged that, on each previous occasion, he had used the end of the bunk to get up and down (T 116). The following was put: (T 116)

“Q. And essentially you were using the end of the bunk bed as a ladder?

A. Yes. Not such as a ladder, just more of a guide to get down.

Q. You described using the horizontal rails that you would stand on as you went up?

A. Mm-hm.

Q. That's right?

A. Yes.

Q. Is that the way you came down every time you had previously been up on the bunk bed?

A. Yes.”

34 Why, then, counsel asked, did Cameron not use the same means of getting down on the day of the accident? The examination was as follows: (T 116/117)

“Q. So on this particular morning why didn't you go back down that way?

A. Because I just went down that way and I just got down the way I did and I've seen Joel many times just jump down there.

Q. So you had seen Joel jump off the bed actually, had you?

A. Yes.

Q. But I take it that you at least knew on the day that you had your fall that if you wanted to you could have actually climbed down the very way that you got up?

A. Yes.

Q. That was there and available to you?

A. Yes.

Q. If you wanted to?

A. If I wanted to.

Q. But you decided to go a different way?

A. Yes.”

35 In re-examination, Cameron said that Joel was much taller and bigger than he was (T 121), a matter disputed by the defendants. According to Mrs Shaw, Joel was developmentally delayed and was not so tall for his age (T 267). There were, nonetheless, real differences between them, quite apart from the three years that separated them in age. Mrs Shaw described Joel as the “leader” in some of their games. To get down from the bed, Joel jumped, whereas Cameron was too scared (T 121). Joel gave evidence that he could place his hands on the top bunk and lever himself up. He said this: (T 289)

“Q. Do you remember how old you were when you first started to be able to do that?

A. No, not really.

Q. Hand on the mattress and launch yourself up?

A. No, not really.

Q. Was that something you could do all the time or something you could only do when you started getting a bit older?

A. Probably when I got a bit older, yeah.”

36 Let me pass to the evidence of Joel.

The evidence of Joel.

37 Joel gave evidence that he was asleep and awoken by Cameron who was sitting beside him. He said this: (T 291)

Q. He was sitting on the mattress you said?

A. Yes, with his feet hanging off the side of the bed over the dresser drawers.

Q. Right. Now I think there has been some evidence that adjacent to the end of the bed where your head is, is that a chest of drawers beside the bunk bed under the window?

A. Yes.

Q. Do you know where his legs were exactly in relation to the chest of the drawers?

A. They probably would have been directly over it.”

38 They talked and Cameron told him that he was to be picked up to attend a dental appointment. Joel then described what happened: (T 292)

“Q. What happened then?

A. That is when he put, he stood on the chest of drawers which he just dropped his feet on to the chest of the drawers and he stood up and then he said something which I am pretty sure he said ‘Geronimo’ and then he jumped down and from my angle it looked like he just jumped down and landed but I looked down and he was on the ground and he started screaming, I didn't know if he was joking or having fun or if he had actually fallen.”

39 He added: (T 292)

“A. I am laying down and I am looking across at him.

Q. Okay. So you saw the upper part of his body when you indicated on your arm?

A. Yes. Then he jumped down and it looked like he just jumped down and landed and he was fine but when I looked down he was on the ground and a few seconds later he started screaming.”

40 Joel’s mother rushed into the room. His evidence continued: (T 292)

“Q. I think, or what did you do then?

A. I got up really quick and mum had already heard the screaming so she come in to see what had happened and I said ‘I don't know what happened, I think he fell’ and so we kept asking him if he was okay and he kept saying ‘it hurts’ so we picked him up and put him on the bottom bunk and then called his mum or dad and told them ‘Cameron had fallen, you need to come pick him up.’”

(emphasis added)

41 When cross examined, Joel said that he had been sleeping. He had just woken up (T 300). He was lying down. He could not see Cameron’s feet (T 300). He then said this: (T 301)

“A. He turned himself, he lowered himself on to the chest of drawers and then he turned to face out into the room away from the window.”

42 The cross examination continued: (T 301)

“Q. Okay. And that of course could be because he was trying to get his foot, I suggest to you, on the lower bunk bed, that is one of his feet. That could be the case?

A. No, he was still at the same level, he was just kind of on the chest of the drawers, like standing on it and then he turned.”

43 Joel was quite sure that he had jumped. His evidence continued: (T 302/303)

“Q. I suggest to you that that is exactly what happened, he put himself down on to the chest of drawers with one foot and then he slipped and fell, that is quite possible, isn't it?

A. No he jumped.

Q. But you couldn't see what he was doing because you were lying down, how can you say that?

A. Because I could see him standing there and I saw his body go up as he jumped and that is when he landed. I thought he was joking around, I thought he was fine, I didn't realise because when he landed I couldn't see him, I could see at that level so I didn't know if he landed on his feet or actually landed head first or whatever.

Q. Somebody who jumps, you jumped many times as a kid no doubt, lands on their feet don't they, I suggest?

A. Yes.

Q. Generally?

A. Yes.

Q. If you are standing on something and you slip then you start to fall and you might not land on your feet?

A. No.”

(emphasis added)

44 In answer to questions asked by me, Joel said this: (T303)

“HIS HONOUR

Q. Do you say he actually was at one level and then rose in front of you?

A. Yes.

Q. His head going towards the ceiling, his body down, well, his body in a downward attitude, and how high did he go?

A. It was kind of like just a small hop, it wasn't like a big jump.

Q. But he actually went up?

A. Yes.”

45 Joel told his mother when she came into the room: “I don’t know what happened, I think he fell” (T 292) (supra para [40]). When cross examined concerning this evidence, he said this: (T 302)

“Q. When you spoke to, I think you phoned the Thomas' and you said he fell?

A. Yes, that is because I didn't want to say he was jumping off furniture.

Q. That is the first time you have suggested anything of the sort Mr Shaw, isn't it?

A. No.

Q. The reality is that as soon as it happened and your mother came in you told her that he fell?

A. Yes.

Q. That is what you told us today?

A. That is because I was worrying.”

46 He added: (T 303)

“HIS HONOUR

Q. Am I right in thinking though when your mother came in you said, you covered for him in effect because you were frightened that he might get into trouble because he jumped off furniture?

A. Yes.”

47 Counsel for the plaintiff, in submissions, drew attention to an amendment to the Defence filed by the defendants. The original Defence, filed on 24 April 2007, asserted as a particular of contributory negligence, the following: (Pl’s Supp Subs: para [5])

“2. In answer to paragraph 3 of the Statement of Claim, the first and second defendants:

2.1 ...

2.2 ...

2.3 Say the plaintiff fell whilst standing on a chest of drawers next to the bunk.”

48 The Amended Defence, filed on 18 February 2009, was as follows, the amendment being underlined:

“2.3 Say that the plaintiff fell whilst standing on or jumping from a chest of drawers next to the bunk; ... ”

49 According to counsel for the plaintiff, Joel’s account was a recent invention which ought to be rejected. Leaving that issue to one side for the moment, let me pass to other evidence which bears upon this issue.

Other relevant evidence.

50 Joel’s mother, Mrs Shaw, was in her bedroom at the time of the accident. She heard the thud and Cameron’s screams (T 269). She rushed into Joel’s room. She saw Cameron lying on the ground, face down on his stomach. His head was to one side (T 269). She naturally asked Joel what had happened. Her account, and his reply, was in these terms: (T 270)

“Q. Doing the best you can, what did Joel say to you?

A. He told me that Cameron was sitting on the side of the bed near his head, that he was talking to him, singing him little songs, whatever, and that he went to - he turned to get onto the chest of drawers, went to jump, said something like ‘Geronimo’ and then slipped and fell.

Q. So it's all quite quick. Could you just--

A. Sorry?

Q. So you said--

A. He was sitting on the side of the bed. He had been singing a song to Joel and then he decided to get down obviously; he put his feet on the chest of drawers and he went to jump, he said something like ‘Geronimo’ as he jumped but he I believe it was because of his socks, he slipped.”

51 There were similarities between that account and the account given by Joel in evidence although Joel suggested that Cameron jumped, his body rising towards the ceiling slightly, rather than slipping as he jumped. However, Mrs Shaw’s account was inconsistent with Joel’s evidence that initially he gave her a false account, covering for Cameron.

52 Mrs Shaw asked Joel to telephone the Thomas’. He did so. According to Christine Thomas, Joel said Cameron “fell off the bunk” (Exhibit A: p 175, para [6]). Mrs Thomas said that she would send her husband straight over to pick Cameron up. Her husband, in his affidavit, said his wife told him that Cameron had fallen off the bunk (Exhibit A: p 180, para [9]). When Mr Thomas arrived at the Shaws’, he was shown into Joel’s room. Cameron was on the bottom bunk. His nose was bleeding. He said this: (Exhibit A: p 181)

“12. Cam appeared distressed, he was thrashing about, moaning, holding his head complaining that he had a ‘massive headache’.

13. I had a conversation with Susan Shaw but I cannot recall exactly what was said. However Susan said words to the effect ‘Joel told me Cam fell off the bunk bed while he was trying to get down.’ Susan was stroking Cam’s head and appeared to be comforting him.”

53 Cameron was then taken home but would not settle. Within a short time he was taken to the surgery of their local doctor, Dr Elliott. Dr Elizabeth Elliott recorded the following: (Exhibit B: p 1)

‘Hit forehead 40 inds prior to presentation, doesn’t seem to have KO’d as remembers all, has vomited, looks a bit green, minor frontal headache after one hour.

Orientated.

No h/o migraine, no sinus.

90 mons later still alert but tired.

2 hours later still vomiting but less headache, tending to sleep but not obtunded.”

54 Dr Elliott arranged for Cameron to be admitted to the Tweed Heads Hospital that day. She provided the hospital with a copy of her notes, accompanied by a short letter (23.4.04), which included these words: (Exhibit B: p 7)

“This lad fell onto forehead off top bunk. ...”

55 The hospital notes of the Tweed Heads Hospital repeated that history (Exhibit B: p 9, 10). The hospital records included a note made at 12.30 pm on the day of the accident, which was as follows: (Exhibit B: p 10)

“Head injury. Sent in by GP 5/24 ago. Fell off top bunk landing LT side head ... ”

56 Cameron was seen by a doctor at 1513 hours that day. The doctor’s note of the history included these words: (Exhibit B: p 12)

“Fell off double bunk this a.m.

Brief LOC ...”

57 The same day the decision was taken to transfer Cameron by ambulance to the Neurological Unit at the Southport General Hospital on the Gold Coast. The ambulance record included the following history: (Exhibit B: p 15)

“Patient fell off top of bunk beds onto concrete floor. Nil LOC. ... ”

58 Once at Southport General Hospital, a further history was taken at 2300 hours [11 pm] on the day of the accident (23.4.04): (Exhibit B: p 32)

“Fall off bunk onto L side head, vomiting.”

59 Soon after his admission to the Southport Hospital, Mrs Shaw brought Joel to the hospital to visit Cameron. Mrs Thomas said the following conversation took place: (Exhibit A: p 176)

“15. At some stage I asked Susan words to the effect ‘How did this happen?’ Susan said, in the presence of Joel, words to the effect ‘Joel told me that Cameron was getting down from the bunk bed and he has put his foot on the chest of drawers and slipped. I am trying to think if he had a sock on at the time. If he had a sock on, that would explain why he slipped.’

16. At some point in the conversation I asked the question ‘How does Joel get down?’ Joel then piped up and said ‘I just jump down’. Cameron then said ‘I was too scared to jump.’.”

60 Mr Thomas also spoke to Joel. His statement was in these terms: (Exhibit A: p 182)

“21. I think it was the second day after Cameron’s accident that I was with Cameron in his ward at the Gold Coast Hospital. Christine was also there. Susan and Joel Shaw arrived with some gifts ... During the Shaw’s visit I had a conversation with Joel while he was looking at the view out of the window. I remember Joel saying words to the effect ‘Cam fell from the bunk bed as he was trying to get down’. He didn’t go into any further detail.”

61 Mrs Shaw gave evidence that she recalled the visit to the hospital. She spoke to Mrs Thomas, but could not recall the specifics (T 273). She said this: (T 273)

“HIS HONOUR

Q. Do you have the substance of the conversation?

A. Obviously we talked about the fall, and my opinion that I thought he had socks on.”

62 Counsel for the defendants put to Mrs Thomas the substance of what he suggested Mrs Shaw had said about the incident. The cross examination included the following: (T 41/42)

“Q. And got down on to the chest of drawers?

A. Yes, as a way to alight from the bunk bed.

Q. What she said was that he had in fact put both his feet down and had stood up on the chest of drawers?

A. No, that’s not correct.

Q. I suggest to you that she then said that he in fact had slipped in attempting to jump off the chest of drawers?

A. No, that’s not correct.

Q. There was certainly, from what you say, some discussion about whether he had socks on or not?

A. Yes. ...”

63 Counsel’s questions put a version consistent with Mrs Shaw’s evidence, but different from Joel’s account.

64 Mr Thomas was asked about the conversation at the hospital. He gave the following evidence: (T 172)

“Q. If I could deal now with the conversations you had with either had with Mr Shaw, Mrs Shaw or Joel Shaw with regards to what happened on the day in April 2004 when Cameron had his fall. Did anybody at any stage say to you anything contrary to the fact that he had fallen from a bunk?

A. No.

Q. Had anybody ever suggested to you that he jumped from the bunk?

A. No.

Q. Or jumped from anywhere else?

A. No.”

65 Mr Thomas was then asked about a later conversation with the Shaws. The examination was in these terms: (T 173)

“Q. Had either of the Shaw's ever said anything different to you than that?

A. Yes.

Q. What did they say that was different?

A. It's got nothing to do with the bunk bed.

HIS HONOUR

Q. Sorry?

A. Nothing to do with the bunk bed.

ROYLE

Q. When did they say that to you?

A. They've said that to me as late as last year.

Q. Was that the first time that they said it to you? Was that the first time they said it to you?

A. The first time Mrs Shaw said it to me and then--

Q. Had she expressed a concern about something?

A. Yes.

Q. What was her concern?

A. She was, I suppose, showing a degree of hostility towards me.

Q. Had they initially in the first couple of years shown any hostility towards you?

A. Not at all.

Q. In the first couple of years had they ever suggested anything different in the terms of the way the accident happened?

A. In no way, no, they supported us all the way.”

Evaluation.

66 The defendant in submissions characterised the issue in these terms: (DS: p 14)

“37. There is a clear conflict between Cameron and Joel as to the precise circumstances of the fall. Whilst not a lot ultimately turns on which version is accepted, it is submitted that this Court would accept the version given by Joel.

38. Such a finding would be that in getting down from the top bunk, Cameron got off onto the adjacent timber chest of drawers. He had then turned and in attempting to jump down to the ground, he slipped and fell awkwardly on the ground.”

67 Elsewhere the choice was expressed in these words: (DS: p 17)

“Whether accepting Cameron’s version or Joel’s version it appears that Cameron has slipped and fallen.”

68 The plaintiff, accurately in my view, expressed the issue as follows: (PS: p 7)

“20. There is little dispute in relation to many of the facts. It appears that both accept the plaintiff was sitting on the edge of the bunk facing outwards and lowering himself down with one hand on either side. The dispute is whether the plaintiff placed two or one foot on the chest of drawers and then whether the plaintiff impliedly slipped or jumped.”

69 I accept the evidence of Cameron and prefer his evidence to that of Joel. First, there was a real difference between the account given by Joel and that given by his mother, Mrs Shaw. Mrs Shaw, it will be remembered, was repeating what she claimed Joel had said to her immediately after the incident. She said Cameron had slipped as he jumped. She inferred that his socks had caused him to slip. Joel, on the other hand, described a jump. His description was not that of Cameron slipping. Cameron had both feet above the chest of drawers (T 291). He dropped his feet down and stood up (T 292). He turned to face into the room (T 301). He then jumped, just a small hop, but enough to enable Joel to see him rise in front of him as he lay in bed (T 303). He looked like he jumped down and was fine. But then he started screaming (T 292).

70 Secondly, I accept the evidence of Cameron’s parents. They, likewise, spoke to Joel on the day of the accident. They again spoke to him the following day at the hospital. According to their testimony, the version Joel gave at that time was broadly the same as that given by Cameron. Joel said Cameron fell from the bunk bed as he was trying to get down (Exhibit A: p 182). The account he then gave made the link between the bunk bed and the fall, a link absent on the version he ultimately gave. His ultimate version, as Mrs Shaw later said to Mr Thomas, was that the accident had “nothing to do with the bunk bed” (T 173). It was a version that prompted the defendants to amend the Defence in February 2009.

71 Thirdly, the contemporaneous accounts given to Dr Elliott, the Tweed Heads Hospital and the Gold Coast Hospital all emphasised the link between the bunk bed and the fall.

72 Fourthly, there is no question that Cameron fell on his head. He fractured his skull and seriously damaged his nose, as I will shortly describe. The issue is how did he come to land on his head? I find Cameron’s account of sliding down the bed, trying to use the chest of drawers as a foothold, much more plausible than Joel’s version. It is not difficult to imagine how, in attempting that manoeuvre, searching for the bottom bunk with his other foot, Cameron might lose his balance and fall on his head. In contrast, it is difficult to see how Cameron ended up on his head based upon the description provided by Joel in his sworn testimony. Had Joel given the account which his mother attributed to him, of Cameron slipping, it may have been more plausible. However, that was ultimately not the account he gave.

73 There were other matters, although they are less certain, where I prefer the version of Cameron to that of Joel. Cameron said he did not place both feet on the chest of drawers and stand up. There was no room to do so because it was cluttered (T 121). Joel said, apart from a few trophies, it was clear (T 298). It perhaps would be surprising, in a thirteen year old boy’s room, were the top of the chest of drawers clear. But, however that may be, Joel said Cameron’s feet were “probably” directly over the chest of drawers as he sat on the side of the bed (T 291). From the photographs and the plan (Exhibits 3 and 4), that appears unlikely, when one makes allowance for the pillow on the bunk bed which would have been directly above the chest of drawers. Cameron was some way along the bed, at the pillow end (T 84). He denied that both his legs were over the chest of drawers (T 119). If, as seems likely, he was not directly over the chest of drawers, it would have been awkward to place both feet on the chest. The manoeuvre described by Cameron appears to be a more plausible way of getting down, that is, sliding using the chest as an intermediate foothold.

74 Against that background, let me turn to the provisions of the Civil Liability Act 2002.

The Civil Liability Act 2002.

75 Cameron was a ten year old boy given into the charge of the Shaws on his first sleep over. The sleep over was in a room with bunk beds. Section 5B of the Civil Liability Act is in these terms:

“General principles

5B(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

76 Section 5C(a) is as follows:

“5C In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, ...”

77 The defendants, in helpful written submissions, addressed each limb of that section. Was the risk foreseeable? What did the defendants know, or what ought they to have known? The defendants drew attention to the following, amongst other matters (paraphrasing their arguments): (DS: p 18, paras [45]/[46])

Cameron had never climbed from the top bunk before via the chest of drawers.

The defendants had not seen him perform that manoeuvre.

There was no evidence that anyone had done it before.

Cameron had always used the end of the bunk bed to get up and down in the past.

There had never been an accident before.

Cameron’s parents had not seen fit to check out the hazards in the house.

78 Mrs Shaw gave evidence that children used to stay quite often on sleep overs (T 264). She knew, of course, that the bunk had no ladder and no guardrail. The bed base of the top bunk was approximately 1.22 metres high, with the mattress resting on top (Exhibit A: p 140). Mrs Shaw said that she had seen boys use the end of the bunk to climb up (T 264). She never saw them climb down (T 265). She only ever saw them jump down: “Boys do a lot of jumping” (T 265). She recognised that boys had a proclivity to climb (T 282). She said: “I would guess that boys will be boys” (T 282). She also recognised that boys can be impulsive (T 282). Indeed, she knew from observation that Cameron was somewhat impulsive (T 283). He was, in her words, “very lively” (T 283). She had seen boys on the top bunk from time to time (T 267).

79 Joel gave evidence that he jumped down from the top bunk. He also acknowledged using the chest of drawers to assist him in getting onto the bunk bed (T 298). He agreed that Cameron would have seen him do that (T 298). I accept, in the circumstances, that it was foreseeable that young children of Cameron’s age would climb onto the top bunk and may improvise in getting down. The occupier ought to have known that there was the risk of harm, absent a ladder and guardrail.

80 Section 5B(1)(b) requires that the risk should not be insignificant. Here, according to the plaintiff, the risk was so significant that, since 2002, there had been a mandatory Australian Standard in respect of bunk beds. The publication by the Australian Competition and Consumer Commission of that Standard included these words: (Exhibit A: p 165)

“All bunk beds sold in Australia must meet the mandatory consumer product safety standard for bunk beds administered by the ACCC.

In place since 2002, this mandatory standard requires bunk beds sold in Australia to comply with the Australian/New Zealand Standard 4220: 1994, bunk beds (with variations).

Bunk beds have been associated with many injuries to children. Hazards include falling from the top bunk or small heads and limbs being trapped in the bed framework, often leading to serious or even fatal injuries.

Studies show that in Australia at least 3850 bunk bed-related injuries to children under 15 are treated every year by hospital emergency departments or by general practitioners. Of these cases, about 390 are estimated to result in hospital admission. Almost half of all bunk bed injury cases are in the five-to nine-year age group and, of these, at least 180 need to be admitted to hospital.

The mandatory standard requires bunk beds to comply with various design, performance and marking provisions, including requirements to: ...”

81 The requirements of the Standard included guardrails and a ladder, as a means of access and egress. The expert who provided a report (and who was not required for cross examination), said this: (Exhibit A: p 141)

“21. Both a guard rail as well as a ladder would provide support for someone attempting to climb down from the top bunk. The guard rail offers a hand hold whilst the ladder would provide a foothold. The number of hand holds and footholds are greatly reduced if both of these items are removed.”

82 The defendants submitted that “clearly the risk could be regarded as insignificant”, because Cameron had never descended from the top bunk in this manner before, but had always used the end of the bunk to get up and down. There was no expectation that he would use the chest of drawers in the manner he did (DS: p 20/21, para [49]). However, I am satisfied that the risk was not insignificant.

83 The plaintiff, in these circumstances, suggested that a reasonable person in the position of the Shaws would have taken the following precautions:

First, provided a ladder.

Secondly, provided a guardrail.

Thirdly, warned Cameron of the danger and that he must not climb onto the bed or, if he did, he must descend over the back of the bunk.

84 The plaintiff’s expert, having examined the bunk and having referred to the Australian Standard, stated the following conclusions: (Exhibit A: p 143/144)

“27. It is considered that the circumstances of the accident accord to the fact that at the time of the accident, Cameron would at most, have only 2 functional points of support available to him. This runs counter to the widespread principal that three functional points of support should have been available.

28. It is considered that if the ladder and guardrail had been installed at the time of the accident, then Cameron would have had three functional points of support available to him as he descended from the top bunk, at the time of the accident. Furthermore, it is considered that this would have made it far less likely that he would have (fallen) and may have obviated his need to place his foot on the chest of drawers, all together.

29. Based on the information that is currently available to me, it is considered that a ladder and guard rail had been installed prior to the accident, however they had been left off at the time of the accident.

30. The requirement to provide a guardrail and ladder for mattresses 800 mm above floor height is clearly enumerated in AS4220:1994.”

85 Mrs Shaw, in cross examination, was asked whether, when the bolt securing the railing stripped, she considered replacing it with a larger bolt and washer. She said that she had not. As to the ladder, it was put to her that she could have bound or otherwise secured the ladder fitted to the bunk to prevent it wobbling or slipping. She acknowledged that she could have done so. However, her children were older and did not particularly need it (T 281). The Act requires that, in determining whether a reasonable person would have taken precautions against the risk of harm, the Court must consider the matters in s 5B(2), amongst other relevant matters. The defendants argued that, for many of the reasons already given, the probability of harm was extremely low. Cameron had never done this before. He had always descended using the end of the bed. There was no expectation that he would use the chest of drawers.

86 It cannot be said that, absent a guardrail and ladder, harm was probable each time a child climbed up and down. No doubt many such journeys could be made without incident. But the risk of a fall from height onto a hard floor remained, awaiting a misjudgement or mishap. Cameron was young. As a ten year old, he was just outside what may be termed “the vulnerable age bracket” (five years to nine years) (Exhibit A: p 165). But he was, I believe, still vulnerable. It was highly predictable that a child on the top bunk may improvise in getting down, absent a ladder. Indeed, a child of his age, sitting on the side of the bed, chatting to his friend, would be likely to improvise in getting down when seated in that position. The alternative was to climb back up onto the bed, walk the length of it, and climb down the back. More often than not, a child could be expected to get down successfully. However, there was the real possibility of harm, as recognised by the mandatory Standard.

87 Section 5B(2)(b) requires a consideration of the likely seriousness of harm. Here the risk was of a fall from a reasonable height onto a hard surface. There was a significant risk that such a fall by a child may involve an injury to the head, as happened here. Accidents of that kind inevitably carry the risk of serious harm, again as happened here. A child may fall awkwardly or land on furniture or hit their head. Where they do so, serious consequences could be expected. In short, it was predictable to a reasonable person that a fall whilst descending from a bunk bed was likely to cause serious harm.

88 What was the burden of taking precautions to avoid the risk of harm (s 5B(2)(c)), and similar risks for which the person may be responsible (s 5C(a))? Here the bunk beds, on purchase, had guardrails and ladders, supplied by the manufacturer, which the Shaws regarded as unsatisfactory and which they removed. There was no specific evidence of the cost of refixing them or replacing them. The plaintiff submitted that the ladder could have been simply lashed to the tubular steel at no expense. The guardrail could have been refixed with a replacement bolt and washer (cf T 280). According to the plaintiff, this was a well known hazard which was considered sufficiently bad and important to justify a mandatory Australian Standard, requiring both a guardrail and a ladder (T 381). The defendants submitted that the burden, in the circumstances, was unreasonable (DS: p 24, para [57]).

89 Clearly there was some burden and some cost in taking the suggested precautions. That must be part of the calculus in determining whether the precautions were reasonable.

90 The last specific matter which the Act identifies is the social utility of the activity which creates the risk (s 5B(2)(d)). On that issue, the defendants said this: (DS: p 24)

“59. The Shaws were essentially providing Cameron’s parents with unpaid childcare. Unpaid childcare plays an enormous role in our society. This is particularly so with the prevalence of the ‘single parent’ family and the ‘two parent working’ family. The extreme difficulties faced by many of these families are further magnified by the current economic climate. Of course Mrs Thomas was the sole working parent in Cameron’s family with his father unable to work as a result of injuries and disabilities suffered in an accident. Quite simply, many families in the low socio-economic level and indeed the Thomas family would struggle to survive without the assistance of friends and neighbours providing unpaid childcare. There can be no doubt that a finding adverse to the Shaws is one which will impact significantly on our current society’s use of unpaid childcare.”

91 Were the Court to determine that the Shaws were liable, a safety audit of all premises and some form of induction would become necessary (DS: p 26, para [63]). The submissions asked the following rhetorical question: (DS: p 27)

“68. An acceptance of the plaintiff’s case would have far reaching social implications. Would it mean the end of childhood sleep overs? Would it mean the end of unpaid childcare? Would it mean the end of childhood fun as we knew it?”

92 The plaintiff said that such claims were “nonsense”. If one’s children were put in the care of other parents, those parents had to be careful. They had to take reasonable precautions to avoid foreseeable risks of injury. If they had something dangerous on their premises, like a bunk bed without a guardrail or ladder, they had responsibilities. There is nothing wrong with sleep overs. What is wrong is the failure to take reasonable precautions in the circumstances identified by the Civil Liability Act (T 380).

93 The submission by the defendants is not unlike that made by the defendants in Doubleday v Kelly [2005] NSWCA 151, a case involving a child of eight years who used a trampoline, unsupervised, whilst wearing roller skates. Bryson JA, in a passage quoted by the defendants in their submissions, said this:

“[17] In a domestic situation, the response of a householder occupant to a foreseeable risk of injury to a child for whom the occupant is exercising parental responsibilities (as for a brief period Mrs Urquhart was) necessarily involves acceptance of many foreseeable risks of injury to the child. A house has much furniture and other effects which can cause injury, according to the way children use them; children could climb on tables and fall off, and they could tip furniture over. A household could be full of things which children might foreseeably break so as to cut themselves, drop on their feet, swallow or otherwise cause injury. See the comment in the judgment of the High Court in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19 at [36]. ...”

94 However, the judgment continued as follows:

“... Counsel for the appellants gave many examples, including the obvious risk that children might leave the premises and expose themselves to danger on the road outside. In his written submissions, counsel wrote: ‘What were the appellants to do? Short of locking the children in the house (where, it must be remembered, all kinds of potential hazards are present), the children would have had to have been constantly monitored.’ ... This was a contention in relation to supervision, which was not the ground on which the Trial Judge found negligence.”

95 Bryson JA later made the following comment:

“[20] ... Counsel’s reference to the supposed need to keep the children locked in the house was an unfortunately extravagant piece of advocacy; the problem could be solved by much simpler means.”

96 Here, I believe, counsel’s claims were likewise extravagant. There were a number of solutions to the potential hazard. Obviously the ladder and guardrail were safety features which the Shaws chose to remove, rather than address the issues which they saw in relation to them. Various possibilities were identified, including the replacement of the bolt securing the guardrail, as well as lashing the ladder to prevent movement. I infer that a handyman could have dealt with the issue, without significant cost. And if that be thought onerous, it was open to the Shaws, especially when young children slept over (such as Cameron), to arrange for them to sleep in the lounge room on mattresses. That in fact was done when a number of children were sleeping over (T 285). In the circumstances, I believe that a reasonable person in the position of the Shaws would have taken such precautions (s 5B(1)(c)).

Causation.

97 The Act makes the following provision in respect of causation:

“General principles

5D(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).

(2) ...

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

98 The defendants described the issue of causation as “probably the greatest difficulty the plaintiff” faced. The defendants said that the absence of a secured ladder was not causative of the fall for many reasons, including the following, again paraphrasing: (DS: p 28, para [72])

Cameron had been on the top bunk a number of times before, each time using the bars at the end of the bed to get up and down.

He had no difficulty doing this.

He recognised that means of egress was available to him.

For no apparent reason, he chose to get down via the chest of drawers.

The bunk had been used for six years previously without incident.”

99 However, for the reasons given, and notwithstanding what had happened in the past, it was foreseeable that, absent a ladder, a child may improvise when climbing down from the top bunk. Joel, for instance, usually jumped down, as Mrs Shaw acknowledged. A child sitting on the edge of the bunk may well choose to get down another way, rather than climb back onto the bed, walk along to the end and then climb down. Such behaviour could not be described as unusual or unpredictable. Had a ladder been available, it would have been a simple matter for the child, sitting on the bed, to swing onto the ladder and descend. Alternatively, had a guardrail been available, and had the child slid off the bed, as he lowered himself down he could have held onto the guardrail to steady his descent. A hand hold would have been available, whereas none was available because it had been removed. But for the absence of one or other or both of these safeguards, the harm probably would not have occurred. Had there been a ladder, Cameron I believe would have used it. He said he was scared of jumping down. The bunk beds he had at home were fitted with ladders, which he used (T 17). Absent a ladder, but assuming a guardrail, it would have been a sensible and obvious thing to use the guardrail to lower himself to a position close to the floor. I am satisfied that factual causation has been demonstrated.

100 Is it appropriate that the scope of the negligent person’s liability extend to the harm so caused? The Australian Standard was introduced because it was recognised that bunk beds have a significant potential for serious harm to children, absent precautions. There is a need for precautions, amongst other things, in respect of the type of accident that occurred here, that is, a fall from a height. Here there was no evidence that the defendants were aware of the Australian Standard. However, the bunk beds they had purchased had guardrails and ladders. They were clearly provided for reasons of safety. As stated, when they encountered problems, they chose to remove these safety features rather than address the problems. And they did that whilst still permitting children, significantly younger than their own, to have access to the beds. The potential for accident to a young child climbing from the bed was both foreseeable and preventable.

101 In the description provided by Mrs Shaw, a bolt securing the guardrail on one of the two bunk beds stripped (T 263). She and her husband then removed both guardrails and both ladders. It would have been better, more logical, and certainly much safer, had they replaced the stripped bolt. The decision to dismantle the safety equipment on the beds rendered them potentially unsafe for young children of Cameron’s age, or less.

102 In these circumstances, I believe it is appropriate that the responsibilities of the defendants should extend to the harm so caused. I believe s 5D(1)(b) has been satisfied.

Obvious risks.

103 The defendants submitted that the risk Cameron faced was an obvious risk, as defined by s 5F of the Act. According to the defendants, objectively Cameron’s attempt to get down from the top bunk in the manner he described was an obvious risk (DS: p 32, para [78]). He is presumed to have been aware of such risks, unless he satisfied the Court, as a matter of probability, that he was not aware. It was submitted that the plaintiff had not discharged that onus (DS: p 32, para [79]).

104 The plaintiff answered these submissions by asserting two things. First, if the defendants wished to rely upon the suggestion that the risk was obvious, then it had an obligation to plead it under the Uniform Civil Procedure Rules 2005 (r 14.14(2)) (see Port Stephens Council v Theodorakakis [2006] NSWCA 70; and MD v Sydney South West Area Health Service [2009] NSWDC 22, per Goldring DCJ). They had not done so. Had it been in issue, the plaintiff could have addressed the onus of demonstrating that, even though the risk was obvious, he (as a ten year old) was not conscious of it. No such questions were put because it was not an issue.

105 Secondly, it was said that, in any event, the risk of descending as described, perhaps slipping because he was wearing socks, was not an obvious risk to a ten year old child.

106 I accept both submissions by the plaintiff.

Contributory negligence.

107 The defendants did plead contributory negligence. Section 5R of the Act is in these terms:

“Standard of contributory negligence

5R(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

108 The defendants submitted that, were liability found, any damages awarded should be significantly discounted (DS: p 33, para [83]). The plaintiff submitted that no such finding should be made. Cameron’s age was relevant (Doubleday v Kelly (supra) paras [93]-[95]). The plaintiff made the following submission: (PS: p 11/12)

“36. The plaintiff was aged 10 at the time of the accident. He was faced with the challenge of descending from the top bunk. He was accustomed to using a ladder. His friend Joel Shaw got down from the top bunk by jumping but the plaintiff was too afraid to do this. The method of lowering himself onto the chest of drawers and then to the lower bunk (or lowering himself onto the chest of drawers and jumping) was a reasonable response by the plaintiff to overcome the challenge he faced. Bearing in mind the plaintiff’s age and his situation, no contributory negligence should be apportioned against him.”

109 Again, I accept the plaintiff’s submission. I am not satisfied that a finding should be made that Cameron was guilty of contributory negligence.

110 Having established liability, Cameron is entitled to damages. I now turn to that issue.

2. DAMAGES

Background.

111 Cameron’s father, James Thomas, was born in July 1956, and his mother, Christine, in December 1962. Both were Jehovah’s Witnesses, but abandoned that church approximately 15 years ago (T 39). As a consequence, they have remained substantially cut off from their respective families (T 39). This aspect of their lives was explored by various psychologists and psychiatrists. It would appear, however, to have little or no relevance to this case.

112 Mr James Thomas worked in the car industry. In 1979 he had a serious motor vehicle accident. He suffered a head injury. He returned to work in 1982 (Exhibit A: p 180). He and Christine married in 1988 (Exhibit A: p 180). However, he ceased work due to ill health in 1991. He thereafter received a pension. Mrs Thomas was working part time as a finance officer at the time of Cameron’s accident. She now works a nine day fortnight (T 198). Mr Thomas described himself as “a house husband”. As mentioned, Mr and Mrs Thomas have four children, all boys. Bradley 18, is now undertaking a degree in electrical engineering, Cameron is 15, Lachlan 11 and Brenton 9. Lachlan and Brenton are still at school. Mrs Thomas described her two youngest sons, academically, in these terms: (T 11)

“Q. How old is Lachlan?

A. Lachlan is aged 11.

Q. Where is he at school?

A. Lachlan is at Bilambil Primary School.

Q. How is he performing in the last--

A. Very well, excellent reports both academically and behaviourally.”

113 Mrs Thomas added, referring to both children: (T 11)

“ ... they actually put both children in a composite class because they do perform very well and so Lachlan is a 5/6 as a grade 5 student because they feel he could keep up with the grade 6.”

114 Lachlan is very definitely at the top of his class (T 11). She described Brenton as follows: (T 11)

Q. What about Brenton? The same?

A. Very well, at the top of his class. He excels both academically and behaviourally. His reports were very similar in nature to Lachlan. He has won awards for excellence. He did very, very well.”

115 It will be remembered that the eldest, Bradley, had recently commenced a university course in electrical engineering (T 11). He was described by the Deputy Principal of Tweed River High in these terms: (T 133)

“Q. You have also had at your school Bradley who is the elder brother, is that correct?

A. Yes, that is correct.

Q. What are your observations of Bradley's level of functioning?

A. If I had a school full of Bradleys I would be the happiest deputy in the world. He is just an amazing young man who has done amazingly well given the extreme difficulties he has had at home with his brother, and obtaining a very successful cadetship with an energy company.”

Cameron before the accident.

116 There was no real doubt concerning the symptoms suffered by Cameron. The fundamental medical issue was whether such symptoms derived from brain damage, caused by the accident and, specifically, frontal lobe damage. The defendants’ medical experts thought it more likely that such symptoms were psychiatric in origin rather than organic. Other experts believed that the accident caused organic brain damage and that psychiatric problems thereafter developed, contributing to Cameron’s disablement. It is important, therefore, to understand what Cameron was like before the accident. Mrs Thomas provided the following description: (Exhibit A: p 176)

“18. Before the accident Cameron was very happy and had a passion for life, family and friends. Cameron was more a recreational sportsman than a competitive one. He loved trampolining, skateboarding and swimming. He rode his bike and played school sport. He was not outstanding but enjoyed it.

19. Cameron learnt piano and clarinet and enjoyed playing and listening to music. Cameron was a good student at school, he was talkative in comparison with my other boys. He was towards the top in maths in grade 5 and strong in other subjects. He completed his homework and other tasks at home. Importantly he could focus and complete his tasks without difficulty.

20. Cameron was a gregarious boy who had an amazing imagination and tended to take the lead in playing with others as he was very gregarious.”

117 When giving evidence, Mrs Thomas described music as Cameron’s passion, his gift (T 12). He had lessons on both the piano and clarinet. His interaction with family members was described in these terms: (T 12/13)

“Q. And how was he with his three brothers?

A. Very good. He was just interacting with them on a daily basis. Each would have their different interests and he was fine with them.

Q. How about his interaction with yourself and your husband?

A. I had no big problems and issues at all with Cameron.

Q. Were there any temper tantrums or other problems that you noted?

A. No.

Q. Did he have any concentrational or memory problems before the accident?

A. No.”

118 Mr James Thomas described Cameron in similar terms (T 161). There was nothing unusual or abnormal about him (T 161). He said this: (T 167)

“Q. What was your relationship like with him before this accident? How would you regard your relationship as a father to a son?

A. I admired him. You know, I admired him, because he was he was courageous and care-free, you know, he was a good kid.

Q. What was he - did you have any difficulty with him doing things you asked him to do?

A. No. Not at all. No. I tried - I tried to bring Cameron up exactly how I did my other three boys.

Q. Did he react any differently from the other boys in any material respect?

A. Not at all.

Q. Did he appear at all increasingly frustrated at any time?

A. No, not at all.”

119 Later, Mr Thomas was asked to explain what he meant when he described Cameron before the accident as “carefree”. He said this: (T 171)

“A. In a way that he was unafraid to - to do something, like I can give you an example, if you wish. That at a particular time we were at show grounds and we were watching a man shear some sheep and we were in a group of large people and he asked for someone to come and shear a sheep. And my son was the first one to put his hand up and wanted to do that. So that's the sort of boy he was in an example as to, you know, he was keen on life and enjoying things and he was, you know.

Q. Was he ever anxious before?

A. No, not at all.

Q. Or fearful?

A. No, never showed any anxiety or fearful or fear in that way.”

120 His brother, Bradley, gave evidence. Bradley was a very impressive young man. He described Cameron in these terms: (Exhibit A: p 191)

“4. ... Before the fall I remember Cameron to be very active, outgoing and social. He had more friends than me and was an outdoor kid. He would skateboard, swim, bike, play sports with his mates. He played the clarinet and piano at which he excelled.”

121 On 27 April 2004, that is four days after the accident, Cameron was interviewed by an occupational therapist. He was then a patient at the Gold Coast Hospital. The note of the therapist recorded the following: (Exhibit B: p 39)

“School

Bilambil State School, yr 5.

good @ music: clarinet + piano. imaginative.

bad @ spelling. like maths.

Conc – distracted easily, talkative.

friends – lots.

teachers – like some, some not fair.

Leisure

Not into sport.

Like being creative, making cubbies.

Riding skateboard. Hockey.

Play with neighbourhood kids.

Selfcare

Make own lunch.

Likes to be tidy, uncluttered.”

122 The entries in respect of self care are important. One of the dramatic and enduring changes since the accident, according to the family whose evidence I accept, was the loss of what is termed “executive function”, that is, the ability to plan, organise and follow through. Mobilising Cameron for school each day had been a significant struggle (T 174), which took time and effort (T 194/195). It also took its toll upon the whole family. It is behaviour said to be consistent with frontal lobe injury, as I will shortly describe.

123 Cameron’s school reports before the accident were tendered (Exhibit 6). They are conveniently summarised by Dr Stephen Buckley, a consultant physician in rehabilitation medicine (he having seen Cameron in May 2007), in these words: (Exhibit A: p 85)

“His 2002 school report for Year 3 is entirely satisfactory with effort indicated as ‘very good’ for six subjects, ‘good’ for three subjects and the only subject identified as ‘requiring more effort’ was indeed writing.

The general comment is encouraging but indicates:

‘ ... He gets distracted from work by his friends at times but will always follow through with his responsibilities when asked.’

The Year 4 (2003) report is even better with ‘excellent’ effort indicated for six subjects and ‘very good’ for five subjects with his worst reported effort being ‘satisfactory’ in only one subject. In writing he has ‘improved greatly’. The general comment is entirely positive apart from the comment ‘he is chatty at times but will take on responsibility when asked.’”

124 Cameron was in Year 5 in 2004 when the accident occurred. There was a report from that year which was likewise extracted by Dr Buckley. However, the accident occurred early in the year (23.4.04). I infer that the report (which is undated) was compiled some time later that year. I will return to the school reports provided after the accident.

The immediate impact.

125 Medical reports were tendered by the defendants from Dr Lee, psychiatrist, and Dr Wendy Roberts, a psychologist (Exhibit 5). Both had been provided with voluminous material by the solicitors for the defendants, when qualified. Each assumed certain matters in Cameron’s history which suggested psychological problems before the accident. There was, for instance, a suggestion in one report that Cameron had sucked his thumb since the age of five, which, according to Doctors Lee and Roberts, was capable of suggesting that he suffered from anxiety. However, the uncontradicted evidence from Mr Thomas was that Cameron sucked his thumb as a baby but had not done so since he was a young child. He began sucking his thumb again after the accident, and continues to do so (T 162).

126 Further, there was a typographical error in a report provided to Doctors Lee and Roberts which created the impression that Cameron had seen a psychologist before the accident. He had not.

127 I accept the evidence of family members in their description of Cameron before the accident. He was a normal, happy child. There is no evidence that the family was dysfunctional. On the contrary, I accept that it functioned well.

128 Returning to the day of the accident, it will be remembered that Mrs Shaw heard a thud and a scream and then rushed into Joel’s bedroom. She saw Cameron lying on the ground, face down, his head to one side (T 269). He did not lose consciousness, although he appeared not to remember all that had happened. Mr Thomas, Cameron’s father, once notified, immediately drove to the Shaws’ home. When he entered the bedroom Cameron was distressed, moaning and holding his head. He saw blood coming from Cameron’s nose and ear (T 163).

129 Cameron continued to complain and was vomiting. As previously described, he was taken to Dr Elliott and ultimately admitted to the Tweed Heads Hospital. A CT scan was undertaken of his head. The report included a mastoid fracture, as well as the following: (Exhibit B: p 16)

“There is a solitary, 5mm diameter, hyperdense lesion seen in the region of the cortex of the right temporal lobe. ... ”

130 A further CT scan was undertaken at the Gold Coast Hospital. The report was as follows: (Exhibit B: p 126)

“6mm right temporal cortical haemorrhagic contusion. Left base of skull fracture involving the mastoid air cells with adjacent intracranial air and a 4mm left retrocerebellar extra dural haematoma.”

131 When admitted to the Southport Hospital on the Gold Coast, Cameron was alert with a Glasgow Coma Scale of 15 (the highest score). His cranial nerves were intact, apart from decreased hearing on the left (Exhibit B: p 133). The CT scan was repeated on 4 May 2004, showing a complete resolution of the haemorrhages (Exhibit B: pp 41; 133).

132 The last of these findings is open to doubt. An MRI was undertaken on 28 November 2004, and the report was in these terms: (Exhibit B: p 6; 123)

“DIAGNOSIS

1. SEVERAL LOW SIGNAL FOCI ON THE GRADIENT IMAGES CONSISTENT WITH PRIOR TRAUMA.

DISCUSSION

On the gradient images there were noted to be a few small low signal foci within the left occipital lobe and one in the right frontal lobe. These are consistent with the residual of prior small haemorrhages as a result of traumatic damage. ...”

133 Professor Reid, a neuropsychologist, gave evidence that a CT scan was crude in terms of picking up lesions in the brain (T 328). Looking at an image on a CT scan was like looking through frosted glass, whereas an MRI is like an image through clear glass (T 327). On 30 November 2004, an EEG showed “mild dysrhythmic features over the right posterior hemisphere” (Exhibit B: p 124).

134 There was, apparently, a further MRI undertaken on 12 January 2005, which was said to show no abnormality (Exhibit B: p 73). I will deal with the significance of these findings below.

Changes in Cameron’s personality.

135 I have digressed to deal with the radiological evidence. Cameron’s family gave evidence that, after the accident, there were immediate and significant changes in his behaviour. According to his mother, he could no longer stand noise (T 17). He abandoned the clarinet, although he continued with the piano for some time. He was angry, and disrupted the family (T 17). It was like “walking on eggshells” (T 17). He was advised by doctors not to play sport (T 17). He became withdrawn and socially isolated (T 17). Sleeping was a problem (T 19). He would wake up terrified (T 19). He was impulsive and unpredictable (T 17). In time he became very depressed, even talking of suicide (T 18). His father described him as “a different boy”, moody, aggressive, unco-operative and lacking in motivation (Exhibit A: p 183). Cameron was acutely aware of these changes. He said this: (Exhibit A: p 171)

“21. I noticed I became short tempered and got involved in lots of arguments. Over time I lost most of my friends and think it is because I became moody, short tempered and angry. I also became depressed and unhappy about the changes in me.

22. I found it difficult to concentrate at school or anywhere else and never manage to complete my tasks. I continued to have headaches.

23. I lost all motivation to continue with my sports and other hobbies including skateboarding, swimming, bike riding, soccer and tennis.”

Treatment undertaken.

136 On 9 June 2004, Cameron saw Dr Malouf, an ENT specialist. He complained of headache, retro-auricular pain, more on the left than the right, and neck pain on lifting. On a tuning fork test, Cameron appeared to have left sided hearing loss. Dr Malouf described Cameron’s injuries in these terms: (Exhibit B: p 52)

“ ... On examination of the nose, the quadrangular cartilage has dislocated off the maxillary crest and is sitting in the left nasal airway. The vessels have become quite dilated in the retro-columnella region and this is where his epistaxis is from. I performed hot-wire cautery under local anaesthesia to these vessels today.

DIAGNOSIS/MANAGEMENT: I suspect that the dislocation relates to the fall as Cameron had considerable nose bleed with the fall. I suspect also that he may need a septoplasty in his late teens due to this dislocation of cartilage. It is possible that there will be deformity of the nose as a result of this procedure.”

137 On 17 June 2004, Dr Elliott, the local doctor, recorded a complaint of depression, which she found extraordinary after “a small fall” (Exhibit B: p 2). On 3 August 2004, Dr Elliott’s notes recorded the following symptoms, recounted by Cameron’s father: (Exhibit B: p 2)

“father says attention span diminished, focus poor

IQ slower

balance less secure, father doesn’t allow skateboards or bikes

if minor head bump ... to headache and pale all day

headaches

frequently, swings moods gets into rage hyperventilation almost like a fit if disciplined, used to be more mellow character”

138 Dr Elliott referred Cameron to the Northern Rivers Community Health Service paediatric team for assessment. Their report (dated 17.9.04) included these words: (Exhibit B: p 53)

“Cameron has returned to school and his teacher reports he is performing and behaving very well. However Cameron’s father reports that since this incident Cameron has increased aggression levels and mood swings at home, frequent complaints of headaches, distractibility ... ”

139 The report continued: (Exhibit B: p 54)

“Cameron’s father is particularly concerned about his mood swings and his ability to cope with the stigma attached to having an acquired brain injury, being restricted from participating in vigorous activity and interacting normally with his friends. His father believes he is becoming isolated from his schoolmates. Cameron’s father is concerned about the emotional effects this situation may be having on him.”

140 Arrangements were made by Dr Elliott for an assessment by the Child Counselling Service of Cameron’s mood swings and aggression. Their report on 1 October 2004, described the “presenting issues” in these terms: (Exhibit B: p 57)

“Huge mood swings; used to be a happy little boy but now gets irritable, sad as well as unwell with headaches, feeling sick. Can’t cope with stress or with boundaries being placed on him.”

141 It was recorded that Cameron was eating and putting on weight, that he was academically bright and musically very bright. The report added: (Exhibit B: p 58)

“Children tease him now about his brain injury.”

142 The Service believed counselling was necessary but not urgent (Exhibit B: p 58). There was no evidence that it took place.

143 However, arrangements were made on 17 December 2004 for Cameron to see Dr McMaster, a paediatrician. Dr McMaster recorded that Cameron had missed a significant amount of schooling. His history was as follows: (Exhibit B: p 70)

“He has complained of having frequent headaches. These seem to settle ... with Panadol and rest; they last between 30 and 60 minutes.

At school I believe his teachers have been concerned that he is not as focused as before. He is eating more than previous. There are no problems with his bowels or micturition.

He has complained of his vision at times being blurry and seeing double, he has at times been unable to write on a line.

He has expressed concerns that life isn’t worth living, he is finding it difficult to liaise with his friends, as he is no longer able to go out and play as he was before. He is apparently now quite impulsive and at times gets agitated. He does have some angry type outbursts.”

144 Dr McMaster’s conclusion was as follows: (Exhibit B: p 71)

“I believe that his symptomatology is consistent with a significant head injury and I am hopeful with time his headaches will settle down. I do believe he needs the support of a Child Psychologist – I will discuss with her whether formal neuropsychology testing may be appropriate.”

(emphasis added)

145 The school Attendance Records do not suggest a great deal of time off school (Exhibit 6), although there was a suggestion that Cameron spent a good deal of time in the sick bay (Exhibit B: p 70), or went home early. His school report for Year 5 was summarised by Dr Buckley as follows: (Exhibit A: p 85)

“The Year 5 report is very good containing ‘excellent effort’ in six subjects, ‘very good’ in five subjects and his worst outcome for effort in this period was ‘satisfactory’ in handwriting.

The general comment again mentions the following:

‘ ... He has at times struggled with focus on the tasks at hand. Primarily this has been because of peer relationships – Cameron loves a chat! In the latter part of the year Cameron has shown a little more focus and results especially maths, have been encouraging.’”

146 The Year 5 basic skills test suggested that, on reading and language, Cameron was close to the school average, in the proficient to “high skills” range (Exhibit A: p 86).

147 Dr Goosen, the neurosurgical registrar at the Gold Coast Hospital, saw Cameron on 12 January 2005, after the MRI that day (which showed no “major abnormalities”). He noted Cameron’s main complaint was headaches. He undertook to discuss the matter with Dr Withers, a paediatric neurosurgeon. Dr Withers wrote a report on 13 March 2005, which included the following: (Exhibit B: p 73)

“He was seen in May of that year and at that stage he complained of some headache but he had no focal neurological signs. CT scan at that stage showed complete resolution of the haemorrhages. He was seen again in the 12th January 2005. An MRI scan was performed at that stage which showed no abnormalities. It was evident at that stage he was having some difficulties with mood changes and ongoing headaches which they feel was related to post traumatic stress.”

148 Dr Withers referred to the CT scan in May 2004 and the MRI on 12 January 2005. It does not appear that she was aware of the MRI in November 2004, which was abnormal (supra para [132]). Her letter addressed to Dr Sue Moloney, the Director of Paediatrics, ended with these words: (Exhibit B: p 73)

“I would certainly appreciate your opinion in this child as I believe that his emotional state is continuing to deteriorate.”

149 Arrangements were made for Cameron to be assessed by psychologists (including Ms Laura Gardner) attached to the North Coast Area Health Service. They recorded that he had been elected a prefect at the end of Year 5. Cameron, in his evidence, described the process which led to his appointment. He put his name forward for School Captain (his older brother having been School Captain). There was a vote and he was reasonably popular. However, he thought that if you were not made Captain (and he was not), you were assured of becoming a prefect (T 99). Ms Laura Gardner wrote a report in April 2005, where she referred to the comments of his teacher, that Cameron’s attention span needed to increase (Exhibit B: p 76). He continued to display high levels of anxiety and angry outbursts (Exhibit B: p 77).

150 There were no school reports for Year 6 (Exhibit A: p 86). Cameron continued to see Ms Laura Gardner, psychologist. Ms Gardner reported, on 15 December 2005, that he displayed many of the symptoms of Post Traumatic Stress Disorder, and met the criteria for Generalised Anxiety Disorder (Exhibit B: p 81). She believed that he may need further psychological follow up.

151 In 2006, Cameron began high school. He entered Year 7 in Tweed River High. He remained at that school for three years, leaving in October 2008, when he was in Year 9. He found high school an enormous challenge compared to primary school and was not able to cope. The Deputy Principal, Ms Dickson, explained the difficulties in these terms: (T 135)

“A. The primary setting is very different to the high school situation. In primary school you, they have one teacher for most of the day, they have one classroom. It is very regimented activities. It is maths first, followed by reading or - it is a smaller environment, usually. It is very supported. It is a, quite a different situation. When they come to high school it is, for us it is six lessons a day, six different, can be six different, you know, teachers. Then you add rollcalls, you add assemblies, you add support, you add year meetings. It is constant. It is just a very, very busy place.”

152 The school grounds consisted of ten acres. Students had to move from one block of classrooms to another. Organisation was required. Cameron found it difficult and would get distracted (T 135).

153 Ms Dickson was involved in discipline. She found Cameron an extremely difficult student to manage (T 130). He would not obey directions (T 131). He chose his friends unwisely, associating with children who had major problems with truancy and other issues (T 154). She said this: (T 132)

“Q. Is he impulsive?

A. Yeah, very impulsive, very impulsive.

Q. How would you describe his concentration levels, from your observations?

A. From my observations and the aides that I had employed to work with Cameron, very poor. Very poor.

Q. What about his memory?

A. Very poor.

Q. What about his ability to organise himself and get himself from one class to another? Those sorts of jobs?

A. Difficult. And part of that was the fact that, because Cameron has a lot of trouble sleeping at night he was often late for school and, you know, high school where we have six lessons a day and it is 51 minutes and Cameron would often find himself arriving halfway through a lesson and an inability to find the class, no books, pens, wrong day. You know, it was often required, it was a bit of a challenge to make the simplest of those day-to-day organisational stuff for school.”

154 The defendants subpoenaed and tendered material relating to issues of discipline concerning Cameron. His conduct, as described in these documents, was sometimes extreme (cf Exhibit 8: Entry 29.8.08). He was suspended on a number of occasions. The subpoenaed material related only to Years 8 (2007) and 9 (2008). Counsel invited the inference that there were no disciplinary issues before 2007 (T 370), which supported the suggestion that Cameron’s symptoms got worse with time, which was unusual.

155 However, there are difficulties with that submission. The subpoena issued by the defendants (which formed part of the exhibit), required the production of records from August 2007, which was Cameron’s second year at high school. There is no basis for inferring that the disciplinary problems first arose in 2007. No such suggestion was put to Ms Dickson in cross examination. Further, Cameron was referred to the mental health team on 23 February 2006, that is, shortly after he commenced high school. Their report included the following: (Exhibit B: p 85)

“Problems with aggression and impulse control. Picked up knife and threatened older brother last week. Apologised afterwards, but said that ‘voices in his head told him to do this, but in his heart he didn’t want to do it’. Mother does not know whether these are psychotic voices or just thoughts.

Cameron has mentioned to his mother that he believes that there are snipers outside of his window at night. Cameron is also fixated on possible dangers such as bird flu.

Has made comments about suicide to mother – ‘might as well not be here and I wish I have died’. Mother estimates that he has made such statements about three to four times. Last time was a week ago. He made one comment that he could slash his wrists ‘like another child did at school’.

In August of 04, Cameron has written notes on his arm about suicide – ‘life is not worth living’.”

156 Because Cameron was regarded as a child at risk, he was entitled to assistance once at high school (T 130). A teacher’s aide was assigned to him. They reported to Ms Dickson that they found him difficult to keep on task (T 130). Ms Dickson gave the following evidence: (T 133)

“ ... We have tried everything from part-time schooling where Cameron, we would make sure Cameron had the work to take home, to, to just coming so that he had the more practical subjects, to, you know, various things. Or he had an aide with him full time to, you know, different classroom settings in subjects where it was too difficult. You name it, I think we have tried a range of gamuts.”

157 Nothing worked. In 2007, Cameron missed 72 days from school and in 2008, 106 days (Exhibit 8). It was apparent to Ms Dickson that Cameron would “not come close to achieving Year 10 certificate level” (T 135). She arranged a meeting with his parents. She recommended a disability programme run by TAFE at Tweed Heads, which provided special education in literacy and numeracy skills. The course would be conducted in small classes, basically one on one (T 136). The aim was to achieve School Certificate equivalency, to allow Cameron to then undertake TAFE courses at certificate level (although not Years 11 and 12 at school) (T 136). Cameron’s parents accepted the recommendation and he left school.

158 Cameron gave the following evidence concerning his mood since leaving school: (T 93)

“Q. Do you think over the last couple of years things have got worse, better, or stayed much the same?

A. Stayed much the same. Things have started getting better recently.

HIS HONOUR

Q. What do you mean by getting better recently; how recently?

A. Just in the past four months.

ROYLE

Q. That is after you left school?

A. Yes.

Q. So, you do not have pressure of school?

A. Main school was not good for me.

Q. Do you find you feel better now without that pressure?

A. Yes.”

159 In cross examination, Cameron said this: (T 94)

“Q. In terms of motivation, do I take it, it is the best it has been since the accident in the last four months or so?

A. Yes.

Q. I take it, that with that new level of motivation, you are hoping you are going to get through the TAFE course?

A. Yes.

Q. You were always pretty good with Maths?

A. Yes.

Q. You are a pretty talented musician?

A. Yes.

Q. I take it, you are expecting to get through this TAFE course without too much trouble?

A. Yes.”

160 He had in mind working in the RSPCA with animals (T 94), perhaps animal husbandry (T 94). The cross examination continued: (T 95)

“Q. And with the course from the RSPCA, you have indicated that one of the positions you might like to look at is with Currumbin Bird and Wild Life Sanctuary?

A. Yes.

Q. I take it you have been down there many times?

A. Yes.

Q. Is it (far) from where you live?

A. No, only about a half hour drive.

Q. Is that something you regularly do, go up to Currumbin?

A. No because the admission cost is too high for Mum.

Q. The RSPCA is about six-month course, you say?

A. Yes.

Q. Can you start working then with that course as young as 16?

A. That is for volunteer work but when you want a job, you have to be 18.”

161 Cameron, incidentally, did perform part time work whilst still at school. He worked at the local fruit market, but found the shifts too much (T 66). He also assisted the Shaws collating catalogues which they printed for their business (T 67, 285). It was said that he performed the latter work competently, although it was not complex.

162 Returning to Ms Dickson, two suggestions were made which should be addressed. First, it was suggested that Cameron’s parents, perhaps unwisely, had prevented Cameron from playing sport. However, the doctors had suggested that he avoid contact sports. In cross examination, the following was put to Ms Dickson: (T 151/152)

“Q. Well Cameron wasn't doing sport?

A. No.

Q. Why was that?

A. The brain people put a strong recommendation in a fear of head injury.

Q. When you say "the brain people", was that Cameron's parents saying that that's what was being told, that they--

A. We had the acquired brain injury people come up to us from Lismore, and the recommendation was that he not be involved in sports where there is a risk to his head, for a head injury. At that stage too, given his behaviour in the school, it was, we thought that we would have better luck on a part-time timetable.”

163 The second suggestion was that Mr Thomas, who was unable to work, was part of the problem. The cross examination of Ms Dickson was in these terms: (T 156)

“Q. Are you aware that Cameron's father hasn't worked for many, many years?

A. Yes.

Q. Did you look into whether that was part of the problem or --

A. It never would have occurred to me, because Cameron comes from such a supporting background anyway.”

164 There can be no doubt that Cameron’s family did everything in their power to assist him, in circumstances where his behaviour was very disruptive.

165 I have been dealing with Cameron’s years at the Tweed River High School. Let me retrace my steps and deal with certain medical treatment during these years. In January 2007, Cameron saw Ms Julie Hendy, the senior neuropsychologist attached to the North Coast Brain Injury Rehabilitation Service. Ms Hendy recorded his symptoms, which included mood swings, impulsivity and defiant behaviour (Exhibit B: p 113). He presented as a very pleasant, personable young man with good social skills (Exhibit B: p 114). Ms Hendy’s conclusion was as follows: (Exhibit B: p 116)

“The results of the neuropsychological assessment do not reveal any major or significant cognitive deficits. Cameron is showing a good capacity to attend, and his speed of information is within normal limits, and he can divide his attention across several tasks simultaneously. He shows good normal memory, and good normal planning, organising and problem-solving skills. The only cognitive difficulty of note was that of manipulating simple information in his mind.”

166 She added: (Exhibit B: p 116)

“His main difficulties are to do with endurance and fatigue. It would seem that his general capabilities are relatively preserved, although I cannot eliminate the probability of a mild overall downgrading given the history of high academic and musical attainments prior to injury. Notwithstanding the general preservation of his cognitive abilities, however, he cannot sustain mental activity for long. Furthermore, as his endurance wains he begins to experience the difficulties described above: his head aches, he becomes irritable, his mood deteriorates, he may experience double vision or blurring, and his concentration will wane. Over time, these difficulties have caused him distress, and this has given rise to anxiety and depression (although I note he is not depressed at present). He also suffers nightmares, and will wake with a headache the next day.”

(emphasis added)

167 In May 2007, Cameron saw Dr Stephen Buckley, a physician in rehabilitation medicine. Dr Buckley was, for eleven years, the Director of Neurological Rehabilitation at Mt Wilga Private Hospital (Exhibit A: p 91). His principal clinical interest was the rehabilitation of children and adults with traumatic brain injury (Exhibit A: p 91). Dr Buckley recorded the same complaints. His neurological examination was normal (Exhibit A: p 83). His conclusion was in these terms: (Exhibit A: p 87)

“A brain injury of this general severity, might well be expected, in a few cases, to result in behavioural impairment of the general type (at the age of 13 years) exhibited by Cameron Thomas.”

168 Under the heading “Attributability”, Dr Buckley said this: (Exhibit A: p 87)

“In my opinion, there is a reasonable likelihood that on the balance of probabilities, there are current behavioural deficits arising from the brain injury sustained on the 20.4.04.”

169 Dr Buckley thought Cameron needed assistance at school (which was duly given). He needed to be reviewed twice a year by a brain injury specialist and four times a year by a GP (Exhibit A: p 88). It was too early at that point to determine his prognosis.

170 The effect of the accident upon Cameron has been profound. His personality and behaviour have changed. But worse, he recognises that he is “not the same kid I was before” (T 90). He is now isolated. He has few friends (cf Christine Thomas T 24; Bradley Thomas Exhibit A: p 193, para [20]). A once active child, Cameron now spends his time in the following manner, as described by Bradley: (Exhibit A: p 193)

“21. Cameron’s day generally consists of waking up late because he is awake at night. He is very paranoid about being by himself at night, and can’t get to sleep. He’ll get up at about 11 am, get some breakfast and goes straight back to his room. He sits in his room using his computer and being anti-social. The only time you’ll see him is when he gets something to eat and drink. He does go out occasionally with his friends. I can see he has low self esteem at times. After an argument and has become regretful he will say that he can’t do anything and can’t socialise in the same way his friends can. He feels left out ... at times.

22. I can tell he feels alone by the way he walks around and by his tone. He appears sad and depressed a lot of the time. He was never a depressed kid and always happy and bubbly.”

171 Cameron, in his statement, said this: (Exhibit A: p 171/172)

“30. After the accident, the doctors told me I had a brain injury and explained that I would no longer be able to play sport or do any of the really active things I loved doing in case of further injury which could be very serious, even fatal. I felt very sad and felt that I had nothing left to enjoy. It was not fair that all my mates could still play sport, go skating, go on the trampoline and I couldn’t.

31. Since my injury I have just felt life is not worth living. My mates were such a big part of my life and after this injury, they moved on to other kids because I had changed so much. This really hurt me and made me very depressed. I have often felt my family would be better off if I wasn’t around because it would not be as stressful.

32. I wish I had the power to make things better. I have lost four years of my childhood which is gone forever. I am worried that I am not coping with life like all my brothers are. I don’t really think about my future because I just try to get through each day.”

172 Freedom from school, where he was not coping, and the prospect of TAFE, have improved Cameron’s outlook. However, realistically, the future remains bleak. Meanwhile, his siblings are all likely to do well. Their success will be a reminder of what he might have been.

173 Let me move to the medico-legal reports and the concurrent evidence.

Defendants’ medical reports.

174 Cameron was examined by Dr Ray Carroll, an ENT specialist, on 20 June 2007. Dr Carroll recorded a history of partial right nasal obstruction and recurrent spontaneous nose bleeds, which began after the fall (Exhibit 5: Dr Carroll p 2). Dr Malouf had treated the problem with electro-cautery. He had advised that nasal surgery may be required when nasal growth was complete. Dr Carroll observed “a very slight reverse C deformity of the cartilaginous bridge line”. It was not causing any objective airway obstruction. Dr Carroll said he “would be surprised” if surgery were required (Exhibit 5).

175 Associate Professor Jones, a consultant physician in rehabilitation medicine, saw the plaintiff on 12 June 2008. His report described the changes in Cameron’s personality, his anger and depression. Professor Jones said this: (Exhibit 5: report p 7)

“ ... I am further of the view that his behavioural problems should improve with the passage of time and there are psychological issues impacting upon his feelings of malaise. His mother is very concerned that Cameron had been a normal child and is now faced with various psychological impairments, and when compared to his brothers, is not achieving.

I am of the view that there will be an improvement with the passage of time and that one could reasonably expect Cameron to have potential for independence within his community. It would be premature to determine a definitive prognosis at this time. It would be preferable for Cameron to have the appropriate medications for the control of his psychological impairment and also to ensure that what he is prescribed is taken accordingly. He will require continuing advice as to educational pursuits and ultimately to be directed along the lines of endeavour which will be best suited to any behavioural problems. ... ”

176 Professor Jones added: (Exhibit 5: report p 8)

“ ... At this time no definitive prognosis can be made as to whether Cameron will require any assistance if he were to live in his own home. His future medical treatment will, in the short term, be medications to control his psychological discomfort ... ”

177 Cameron was also seen by Dr Ross Mellick, a consultant neurologist. Dr Mellick provided three reports (Exhibit 5: 10.8.07; 20.9.07; 3.12.07). When examined on 9 August 2007, Dr Mellick stated “there was no abnormality of cognition”. Dr Mellick’s own neurological examination was entirely normal. He recorded Cameron’s emotional problems, violent behaviour and problems at school. As to possible causes, he said this: (Exhibit 5: report 10.8.07, p 4)

“The history provided draws attention to abnormalities of behaviour. The behavioural changes may have an organic basis, related to impairment of mood control, consequential upon the head injury or may be determined primarily by psychologically based causes, without any underlying neurological sub-straight secondary to continuing brain dysfunction or brain injury.”

178 Dr Mellick continued, referring to the CT scans. He said this: (Exhibit 5: report 10.8.07, p 4)

“The information which is available, in relation to the scans referred to above, does not establish the presence of abnormalities which can be expected to result in organically based abnormalities of function. The MRI scans, which are referred to above, were also reported to be normal. The normality of those scans would underline the improbability of organically based neurological causes for the personality changes and behaviour disorder.”

179 The scans to which Dr Mellick was making reference are set out on the previous page of his report and derive from the report of Dr Papacostas, the neurosurgical registrar of the Gold Coast Hospital (Exhibit B: p 133). That report referred to the CT scan at the Tweed Heads Hospital on the day of the accident, which showed abnormality, and the follow up CT scan (4.5.04) which suggested that the abnormalities had completely resolved. No reference was made to the more accurate MRI of 28 November 2004 (supra para [132]), which revealed the continuing presence of abnormalities.

180 Dr Mellick concluded his report by stating that he would like to have access to all scans performed initially and thereafter (Exhibit 5: report 10.8.07, p 4).

181 A further report was furnished on 20 September 2007, commenting upon additional material supplied to Dr Mellick. That material did not include the MRI of 28 November 2004.

182 Arrangements were made to provide Dr Mellick with the records of the Gold Coast Hospital, which he examined. He noted (Exhibit 5: report 3.12.07, p 1) an unimpaired Glasgow Coma Scale upon admission to the Gold Coast Hospital. He then referred to various reports from the Neurological Department (Dr Goosen and Dr Withers), which included a reference to the MRI of 12 January 2005 where no abnormalities were evident. Again no reference was made to the MRI of 28 November 2004, which was abnormal. There was no discussion, therefore, of the significance of abnormalities persisting on scans for in excess of seven months.

183 Upon the basis of the information he had, Dr Mellick stated that his view remained unaltered. Dr Mellick was not called to give evidence.

184 The remaining witnesses qualified by one or other party were called to give evidence, namely:

Psychiatrists – Associate Professor Carolyn Quadrio (qualified by the plaintiff) and Dr Leonard Lee (qualified by the defendants).

Neuropsychologist, Associate Professor Wayne Reid (plaintiff), and Psychologist, Dr Wendy Roberts (defendants).

185 Each prepared reports. A joint report was also prepared by Associate Professor Quadrio and Dr Lee (Exhibit C), who then gave concurrent evidence. A joint report was also produced by Associate Professor Reid and Dr Roberts (Exhibit E), who likewise gave concurrent evidence.

186 It is convenient to begin with the reports and evidence of Associate Professor Reid and Dr Roberts.

The reports of Associate Professor Reid and Dr Roberts.

187 Associate Professor Reid has practised as a psychologist and neuropsychologist since 1984. He has a PhD in medicine. He was made an Associate Professor of Clinical Psychology and Neuropsychology at the University of Newcastle in 1998. He has published widely and received a number of awards in the area of neurology (relating to Alzheimer’s and Parkinson’s diseases) (Exhibit A: p 103/115). Associate Professor Reid saw Cameron in February 2008 (Exhibit A: p 92). His report set out the history and various tests he performed. Associate Professor Reid noted the following: (Exhibit A: p 99/100)

“19.1 Cameron showed no impairment in his ability to form concepts to adapt and regulate his behaviour given feedback in a test of card sorting. Furthermore he showed no abnormalities in his verbal fluency and speed and flexibility of thinking. By contrast he showed very poor planning and organisational skills in a test where he was required to copy a complex figure and this seems to represent a deterioration in planning and organising skills from when he was assessed in 2007 by Ms Hendy.”

(emphasis added)

188 Associate Professor Reid’s assessment was as follows: (Exhibit A: p 101)

“23.5 The changes in his behaviour and moods, attention and information processing are all consistent with residual effects of brain injury, particularly frontal lobe injury. It is however unusual for these symptoms to become progressively worse after a head injury of mild to moderate severity. One gains the impression that there are secondary psychological factors which are having an effect on Cameron’s overall functioning that have their origins in his frontal lobe injury however psychosocial factors also seem to be further complicating the picture.”

(emphasis added)

189 Dr Wendy Roberts is a psychologist. She has a PhD in clinical psychology and has worked in that field for 35 years (Exhibit 5: report 30.12.07, p 1). She was provided by the defendants’ solicitors with voluminous material which she reviewed. She saw Cameron on 28 June 2007 and administered a number of tests during the course of a day (8.25 am to 3.45 pm) (Exhibit 5: report 30.12.07, p 2). Her report was lengthy (74 pages).

190 A number of assumptions were made by Dr Roberts, based upon the material she reviewed, which were ultimately not supported by the evidence. Reference has been made already to some of them. They included:

First, that Cameron sucked his thumb beyond early childhood (Exhibit 5: report p 69, para [6.13]).

Secondly, that there were “family issues” that predated the accident (Exhibit 5: report p 70, para [6.17]).

Thirdly, that the parents’ background with the Jehovah’s Witnesses had some relevance (Exhibit 5: report p 70, para [6.16]).

Fourthly, that in the period after the accident (and indeed before high school), Cameron performed well and had been made a prefect, such that there must be some doubt concerning the reports of his father to her of emotional problems that he suffered (Exhibit 5: report p 72, para [6.21]). The assumption emerged even more clearly in the joint report where Dr Roberts said this: (Exhibit E: p 3)

“I noted the delayed onset of reported problems/deterioration at school versus home post accident, the extensive family history of emotional problems, issues with his father’s pre-occupation with Cameron’s accident and the father’s own accident and increasing pre-occupation with litigation issues ... ”

However, the contemporaneous complaints of family members to doctors are well documented and are set out above. Certainly Cameron was made a prefect and his problems became more acute as he left the structured environment of primary school and entered high school. However, the changes to his personality and behaviour were immediate and disruptive, the more so at home than at school. Cameron’s father did not appear to be preoccupied with his son’s accident any more than would be normal for a concerned father.

Fifthly, Dr Roberts (due to a typographical error in material supplied to her) thought Cameron had seen a psychologist before the accident (Exhibit 5: p 72, para [6.23]).

191 Dr Roberts expressed the following conclusion, which obviously reflected some of the assumptions which were not supported. She said this: (Exhibit 5: report 30.12.07, p 73)

“6.25 In my opinion, the factors primarily responsible for Master Thomas’ current presentation are emotional ones, not organic ones and in this regard I respectfully disagree with the views of Dr Buckley. The emotional problems are likely to reflect pre-existing issues, adjustment to injury issues plus family issues, which I think are central to understanding the current presentation. There is also an element of exaggeration and increasing preoccupation by both Master Thomas and his father over issues related to the accident. Organic factors are not likely to be implicated in his current cognitive and emotional presentation, on current evidence.”

192 Dr Roberts believed that matters were likely to improve once the litigation was over (Exhibit 5: report 30.12.07, p 73, para [6.26]). She, nonetheless, recommended the provision of 20 sessions of psychological treatment following the finalisation of litigation.

The concurrent evidence of Associate Professor Reid and Dr Roberts.

193 The concurrent evidence given by Associate Professor Reid and Dr Roberts began by considering Cameron’s personality and behaviour before the incident (T 321). Some of the assumptions made by Dr Roberts were corrected. The following was put: (T 324)

“HIS HONOUR: ... does that add up to a normal child or is there something abnormal?

ROBERTS: I didn’t find evidence of abnormality of psychopathology your Honour.”

194 There were differences, however, as to the significance of the head injury. Associate Professor Reid said that, at first, upon reading the medical reports, he thought Cameron’s head injury was mild (T 325). There was no clear evidence of loss of consciousness and he had a normal Glasgow Coma Scale reading by the time he arrived at the Gold Coast Hospital (T 324). However, as he thought more deeply about what had happened, he noticed the following: (T 325)

“The thing is though, what struck me was that when I read the medical evidence is that he had sustained a fracture, an undisplaced fracture of the left mastoid bone and that the initial neuroradiological studies, the CT scan had actually shown evidence of a bleed in the cerebellum, the extradural bleed I should say and in the right temporal area of the brain there was a report of, I think it was a 6 mm lesion discovered and also there was an earlier report of I gather some abnormality on an EEG.

So that information to me suggested he must have had quite a substantial blow to the head in order for him to, A, fracture the mastoid and, B, create the small bleeds in the, particularly in the right temporal area. ... ”

195 That suggested the contra coup effect, a blow to one side of the head so severe that it causes the brain to shift and strike the skull on the opposite side (the temporal region). Associate Professor Reid said this: (T 325)

“HIS HONOUR: Is this the contra coup?

REID: Yes, it is perfect because the fracture to the mastoid to here in the left posterior part of the brain, the farthest most point, must have been sufficient for the brain to move to actually cause some bleed and although it is reported as being small, nevertheless that did occur.”

196 Associate Professor Reid then dealt with the significance of the CT scan on 4 May 2004, which was reported to be normal. He said: (T 325)

“Now, that doesn't persuade me that the impact of the brain injury had disappeared with the so-called normalising of the MRI scan because all that tells us is that with time you get a degradation of the blood and also re-absorbtion of the blood. The MRI scan itself does not pick up any underlying abnormality that would be created by a lesion of that nature.

So, the actual head injury then fits perfectly in terms of the brain being injured from the inside ... ”

(emphasis added)

197 Dr Roberts responded that she believed that this was a matter for medical opinion (T 327). Associate Professor Reid insisted, however, that it was a matter within his expertise, as a neuropsychologist who’s training was different from that of Dr Roberts, a psychologist (T 327).

198 Associate Professor Reid further explained that an MRI did not pick up all abnormalities of the brain by any means (T 328). Neurological conditions such as Parkinson’s disease and Alzheimer’s were not, for instance, evident upon scanning (T 328). Associate Professor Reid added: (T 328)

“ ... even if when we look at the resolution of the bleeds in the brain as identified on MRI scan, one has to look at the other potential mechanisms of injury. That is axonal injury that may have occurred with the brain being moved in such a way that you do get these subtle abnormalities that actually damage the nerve and it is sometimes referred to as diffuse axonal injuries where the actual axle on the nerve is stretched and causes a disruption of the nerve signals that go along the nerve and transfer the information from one nerve to the next. ... ”

199 Associate Professor Reid made the following comment upon the differing perspectives of Dr Roberts and himself, because of their different backgrounds: (T 329)

“ ... Dr Roberts has come in very much from the clinical psychology point of view whereas I am coming from a neuropsychological point of view which does have a very different approach I think because the training is, really, what you have to do is you have to make sense of the material and carefully observe behaviour when you are doing a neuropsychological examination. ... ”

200 Dr Roberts accepted that there had been a head injury, which included a skull fracture. She was asked to assume the sequence of scans to which reference has been made (23.4.04; 4.5.04; 28.11.04 and 12.1.05). The following further assumption was put, followed by a question: (T 330/331)

“HIS HONOUR: I think your comment really in fact makes it clear to me that I perhaps should add in another assumption. I would ask you to assume that during the period that I have been talking about, this 6 months if you like, that in contrast to his pre-injury state, he did and quite quickly after the incident manifest a number of symptoms which were observed by his parents, by his siblings and were in some cases reported to various people such as mood swings, anger, difficulties with sleep and various manifestations of some sort of, if I may loosely use the phrase changes in his pre-fall personality. I am just trying to understand, do you, insofar as you assumed that that was the case, and you assume the MRI changes, do you nonetheless say that those changes were the result of emotions or family dynamics or what do you say?

ROBERTS: The totality of the evidence that I have seen I think suggests that the most likely explanation is reactive emotional problems. We have what was a very frightened boy who was told, I understand, that he might die, that he was very stressed by those experiences, there were a lot of problems in this family.”

201 Dr Roberts later added: (T 333)

“ ... My view of that is that if you've got significant problems with organic factors impacting on function, that it would - you would generally expect to see more effects of that across the board early on, so you would expect there to be more disturbance at school, you would expect his school marks to go down, you'd expect his - particularly if you are looking at frontal things, that you would expect his behaviour to change dramatically across the board. You wouldn't just see there being some changes at home but he's still coping okay at school. ... ”

(emphasis added)

202 As stated, I am persuaded by the medical history and the evidence of each family member that the symptoms were immediate and significant. They grew worse once Cameron left primary school and could not cope with high school. Associate Professor Reid made the following comment concerning the worsening of Cameron’s problems once he reached high school and the transition from primary school to high school. He said this concerning primary school: (T 332)

“... I don't have any difficulty with that because we know from studies that look at environments in schools and things that contain behaviour is that children who do have behavioural problems following head injury, the actual structure and environment of a primary school actually contains their behaviour and because there's certain regulations, everything's structured in time and so forth. And also I'd imagine that there would be a significant degree of tolerance in the teachers as well following Cameron returning to school to actually give him some support.”

203 In the joint report, Associate Professor Reid described the impact of secondary school in these words: (Exhibit E: p 3/4)

“ ... My interpretation of the reasons why Cameron’s behaviour deteriorated when he entered secondary school was that the change in school environment from a very structured primary school environment that often contains minor problems with attention and behaviour are no longer in place when a child enters secondary school and the schoolwork changes and becomes more difficult and requires attention and greater utilisation of frontal executive skills. I am of the opinion that Cameron’s problems in attention, frontal executive skills arising from his brain injury resulted in him not being able to cope with the changes in schooling and he was unable to adapt and compensate for his subtle cognitive problems and as a result his behaviour changed.”

204 Associate Professor Reid added: (T 333)

“And so having a frontal lobe injury certainly does not necessarily mean that one is going to perform badly under all circumstances. Frontal lobe injuries, patients with those can actually perform quite well and also they are known to perform quite well on a number of different cognitive tasks as well. So again, that can be misleading because frontal lobe injuries are equally responsible for personality and behavioural changes without cognitive changes and I think that this is a really important point to make about issues related to changes in behaviour following brain injury.”

(emphasis added)

205 Whilst there was disagreement as to whether Cameron’s symptoms were psychological in origin or caused by frontal lobe damage (or both), the experts agreed that Cameron’s symptoms had been caused by the accident. Dr Roberts said this: (T 334)

“ROBERTS: ... but I do think that the incident has had an impact on Cameron and the family, yes, I do. I see it as--

HIS HONOUR: Significant.

ROBERTS: -- a significant emotional impact.

HIS HONOUR: Just in terms of a test that I have ultimately to apply, would you regard it as a significant cause of the emotional problems thereafter together with other causes which may include the family dynamics?

ROBERTS: I think it is a significant factor. I do think other things have played into it, but I do think it is a significant factor, your Honour.”

206 Associate Professor Reid agreed. He said: (T 335)

“REID: Sorry, your Honour. I was just saying that I agree with Dr Roberts, is to say that like she has agreed that the injury itself has been a significant fact, but there are factors that have developed along the way that surely must also be having an impact on Cameron's behaviour as well.”

207 Associate Professor Reid explained what he meant by “factors that have developed along the way”. He said: (T 335)

“Well, I just think that sort of just the process of a child's adaptation. There is a lot of things about loss of self-esteem, difficulties in changing and being a part of the peer group, the impact of having a brain injury on being able to adapt to environments, be able to cope with secondary schooling, the inability to be able to keep up with one's peers are all having a significant impact, I think, on the psychological aspects of the changes that have resulted from the brain injury.”

(emphasis added)

208 Counsel for the defendants drew Associate Professor Reid’s attention to the opinion of Dr Mellick, who was not able to find evidence of organic brain damage. Associate Professor Reid provided the following comment: (T 339)

“ ... Dr Mellick, being a neurologist, he is looking at the material in a different way. He's looking at it very much ... in terms of neuroradiological evidence, he's looking at it in terms of his neurological examination and he's basing his opinion on that information. What I'm doing is I'm saying, well look, I feel that that is not sufficient in terms of what we understand about abnormalities that occur in the brain and the impact that those abnormalities can have on perfectly normal neurological people who are perfectly normal neurologically, who are seen by a neurologist, examined by a neurologist. It is just that the examinations pick up different things and it is a matter of actually pooling all the information ... ”

209 The cross examination by the defendants continued as follows: (T 340/341)

“POLIN: Your opinion in relation to those, am I correct, is inconsistent with Dr Mellick's? Just in relation to the medical part.

REID: I assume that Dr Mellick acknowledged the abnormalities on scanning initially?

POLIN: I think, correct me if I am wrong, but Dr Mellick has either seen the scan or the report of the scan.

REID: Did Dr Mellick deny that they showed any abnormality?

POLIN: No, I think that he has in fact paraphrased what each of them said.

REID: So we agree. What I'm going on about is that I acknowledge that there are changes in the scans but I'm saying that the information that I have both accepting the knowledge of the neuroradiological investigations and the observations and changes that have occurred in the behaviour following it are all consistent with residual brain damage from the injury.”

210 Associate Professor Reid then identified the basis for his opinion that there was organic brain damage. First, it was important that there was no apparent psychopathology before the incident. Secondly, one then looks at the incident and the changes in behaviour that immediately followed. Thirdly, one then performs various tests to determine what they reveal: (T 339/40)

“ ... My opinion derives from a number of different sources. First of all, the understanding of the mechanism and the neurology that has been reported, the prehistory of no apparent psychopathology is important. Looking at the premedical history, looking at the changes or the symptoms and behaviours that have resulted following this injury, how different are those from what the pre-injury was, giving - doing a detailed analysis of cognition and behaviour and pooling all that information together, your Honour, to come up with - to give an opinion. So this is the thing about neurology - neuropsychology, is that neuropsychology is doing tests. Performs such a small part of the examination because looking at numbers can be quite misleading unless you understand how those numbers - you know, what those numbers mean in the context of the history, the reported signs and symptoms, et cetera.”

211 Here, the tests were consistent with frontal lobe damage (T 341).

212 During the concurrent evidence, Associate Professor Reid identified the various tests, which included the Conner’s Continuous Performance Test. Associate Professor Reid said this: (T 345)

“ ... So it is looking at their ability to sustain their attention to the task and also to inhibit their responding and the task lasts 14 minutes and Cameron performed extremely poorly on this test. And again in the context of the history as well, it was consistent with his inability to be able to sit in a classroom and to be able to focus his attention.”

213 In respect of this and other tests, which he identified, Associate Professor Reid said this: (T 346)

“... So those are the two main areas that I found on my cognitive testing that fitted with my understanding of changes in behaviour from brain injury and particularly the sorts of injury that Cameron had.”

214 Associate Professor Reid also commented upon another test which Dr Roberts had administered and in which Cameron performed poorly. He said this: (T 348)

“Again, I completely disagree with Dr Roberts because to exclude an organic factor - the thing is when people have a brain injury, their vulnerability to fatigue and - difficulties with Cameron which is very clear that he has an attentional problem, the very organic basis of his attentional problems will affect his performance on tests.

The other thing is if Dr Roberts looks at the manual for the DKF or the actual manual of the test that she administered, it says very clearly in that manual that poor performance on that test is indicative of frontal lobe damage and it says it very clearly. Now Dr Roberts hasn't even addressed that in her report. In fact she dismisses it or dismisses any significance to that. What I'm arguing is that the fluctuations in performance are most likely due to attentional problems that have an organic basis.”

(emphasis added)

215 Dr Roberts responded that there may be many reasons to explain low scores. Motivation can be one. In the context of the 14 minute test for sustained attention administered by Associate Professor Reid, Dr Roberts said this: (T 350)

“ROBERTS: It is a question of the definition of how long the task is and I think what Dr Reid is getting at is that the Conner's test is a longer test than some of the other ones that I gave. Some of those can span up to some three minutes. I think that's the point Dr Reid's getting at.

HIS HONOUR: Three minutes as opposed to 14?

ROBERTS: Yes. I am saying that he did do a test with a longer span of attention in it, but the results of that do not necessarily mean if they're poor that someone has organic brain damage and in fact it's recommended that you not rely solely on that to reach that conclusion.

HIS HONOUR: But is it consistent with brain damage if you get a poor result?

ROBERTS: It can be indicative of it. There are other explanations. A poor result does not rule out organic brain damage, but it is also - it can be explained in other ways and that's where we differ, your Honour.”

(emphasis added)

216 Members of the Thomas family gave evidence of the contrast between Cameron before and after the accident, in terms of getting up and getting to school. On the basis of that evidence (which I accept), the following question was put to each expert, beginning with Associate Professor Reid: (T 351/352)

“HIS HONOUR: ... And I ask to you make the assumption which simply reflects, as I understand it, the broad nature of the evidence, that before the incident he, in common with his siblings, was not a problem: He would get himself up; he would make his bed; he would do all the other tasks which had to be done, including getting his breakfast and so on to get ready for school, and he would then be quite keen to go to school, he enjoyed school. After the incident, and after he returned, there was quite a production, as I understood the evidence, in getting him up; often he slept poorly, as Dr Roberts had mentioned. But, in any event, both parents were on the job, be often devoting 20 minutes or so, in addition to trying to get him going and get him out the door and get him to do things which he had previously done fairly routinely. And that persisted, and indeed, as I understand it, and indeed to some extent it became worse in time, especially once he went to high school, and the tasks which he was required to undertake were more complex. I just ask each of you, if you would, to comment upon that ... ”

217 Associate Professor Reid responded as follows: (T 352)

“REID: Your Honour, that sort of behaviour that you are describing is again, to me, typical of the sort of disorganised behaviour that you see in people with frontal lobe injuries, and where they just have difficulties in being able to organise themselves, and to be able to get themselves going and to function in that way. But under circumstances where they are prompted, sometimes that behaviour can be improved. But it is almost like the environment has to be the frontal lobes, in terms of taking over the organisational, because that ability to initiate that behaviour is in some way impaired. So my feeling was that that is yet another behavioural indice of Cameron's frontal lobe dysfunction at that time, and that it seems as though that has continued in the observations of his behaviour today.”

(emphasis added)

218 Dr Roberts had a different view. She said this: (T 352/353)

“ROBERTS: With respect to Dr Reid, I disagree with that explanation. I think that what we have got is that we have got a boy who was frightened by what happened to him. He was frightened by his injuries. He was reacting emotionally to those problems. He wasn't keen to go to school: He dug his toes in; he didn't want to get up; he had been sleeping badly; he just didn't want to go; and, as is typical of children who can be traumatised and fearful, they just don't want to do it and so they are not - they just don't want to engage in that behaviour. I think that that behaviour is explicable, in terms of emotional problems ... ”

(emphasis added)

219 Both experts then dealt with the future. Each thought that terminating school and beginning TAFE was beneficial. Each saw the need for ongoing psychological support (T 354). In terms of work, Associate Professor Reid believed that, if Cameron were successful in completing the TAFE course and pursued his interest in animals, that would improve his prognosis (T 354). Were he not to succeed, or not able to pursue his interests, then the position was likely to be as follows: (T 354)

“Without that, if he was just let loose without that, I would have greater concerns about his prognosis, and particularly from a psychological point of view, your Honour. I mean, it is just his ability to adapt. There is lots of - because of his possible difficulties in finding open employment as such, given he has just left school without any qualifications and so forth, all these issues up in the air with him, I think, yes, I think the sooner he could get into something like that the better.”

220 In later evidence, Associate Professor Reid added a note of caution concerning Cameron’s plan to work with animals. He said: (T 363)

“ ... that's another thing that one has to be cautious about, in terms of people who have frontal lobe injuries, is that they can articulate their wishes and plans in a way, but when it comes to actually carrying them out and following them through, that may be another issue. ... ”

221 Dr Roberts saw real benefits in Cameron getting away from school and the stigma attached to having a brain injury. She added: (T 354/355)

“ROBERTS: ... I also think that he would benefit from having some psychological support there for him and, perhaps, also for the family to move on from what I think has been a very difficult time for them and one in which they have all become involved. So I think the prognosis is good with those suggestions for the future.”

222 Associate Professor Reid believed that there had been significant disruption to a crucial part of Cameron’s education, which must affect his work prospects (T 357). Dr Roberts, whilst acknowledging disruption, believed that his potential was still “good” (T 357).

223 As to future care, Associate Professor Reid gave the following evidence: (T 355)

“HIS HONOUR: ... Is it predictable or foreseeable or probable or a possibility that this lad, in the future, given the history as you know it, is likely to encounter psychiatric or psychological problems in the future?

REID: I think there is a risk there, your Honour, with him about him encountering difficulties in the future. Things that will be, I think, where partly that will be dependent on, is (a) him sort of getting through the course; (b) him actually getting a job, and the other thing is looking at his peer relationships and his ability to fit in and maybe to find a partner or whatever. Those sorts of, normal sorts of things, I think, are going to be important, and I think it is going to be in the next few years where that's going to sort of really become evident. I would say there is a significant vulnerability of this young man encountering further difficulties, particularly with relationships and fitting in with peer groups and being able to actually make that transition, get through this stage also, which is, not only as adolescence is it a difficult time for, you know, anybody without a brain injury, there is that whole process of actually weathering adolescence and entering adulthood, and that's where I think his supports are going to be greatest in this period of getting through.”

(emphasis added)

224 Dr Roberts thought that Cameron was certainly vulnerable. There was a family history of psychiatric problems, although not affecting his parents (T 355). She thought that the provision of support “to get through the next phase of getting on his feet would be helpful”. She added: (T 356)

“I would also like to point out that I do think he has got quite a lot of personality strengths. The boy who sat in front of me had very good social skills. He was very pleasant. He relates well. He's got friends. He's - sure he has had difficulties, but there are strengths in personality and in presentation and in cognitive skills and personality that I think are there ... ”

225 When giving evidence, Cameron presented as intelligent, likeable and articulate.

226 I will return to the issue of treatment below. Before I do so, I should deal with the evidence of the two psychiatrists who provided reports and ultimately gave concurrent evidence, Associate Professor Carolyn Quadrio and Dr Leonard Lee.

Reports of Associate Professor Quadrio and Dr Lee.

227 Associate Professor Quadrio was admitted to practice medicine in 1966. She thereafter qualified as a psychiatrist and became the Director of Mental Health Services with the New South Wales Corrections Health Service until 2001. She is an Associate Professor of psychology at the University of New South Wales and has published widely (Exhibit A: p 76).

228 Associate Professor Quadrio first saw Cameron on 1 June 2007. He presented as “an attractive and personable lad” (Exhibit A: p 54). She noted he had been in hospital for five days. She also recorded that part of the history of that period included the following: (Exhibit A: p 56)

“ ...He was also told that he had been very close to death. ‘This freaked me out, I was very scared.’ Then he had a ‘tremendous fear’ that he might die and that went on for about a year.”

229 Cameron was cautioned by doctors to avoid further injury to his head. He was told that such an injury could be extremely dangerous. Since then he had been accidentally hit on the head “about eight times”. Associate Professor Quadrio recorded his reaction in these terms: (Exhibit A: p 56)

“ ... Each time he feels ‘enormous terror’ and ‘fear that I’m going to die’.”

230 Cameron was now afraid of sleeping alone and his sleep was disturbed. His parents were reported as being bewildered by his reaction (Exhibit A: p 57). Cameron now feels “on edge the whole time” (Exhibit A: p 58). His parents stated that, whereas he had been fearless and confident, he was now reclusive. He had lost a lot of friends (Exhibit A: p 58).

231 Cameron struggled at school. Associate Professor Quadrio recorded the following: (Exhibit A: p 61)

“(Mrs Thomas) observed that his three brothers are all top students and this probably makes the situation more stressful for Cameron.

Cameron agreed he is not going well; the noise at school is ‘too much’ and ‘everyone else is doing stuff and I can’t do it’.

Mrs Thomas said that Cameron gets very frustrated and will say ‘I’m dumb’. ... ”

232 Associate Professor Quadrio formed the following opinion: (Exhibit A: p 69)

“Cameron has a very complex combination of both neurological and psychological sequelae as a result of the head injury he sustained. ... ”

233 He presented with depression and personality change. Associate Professor Quadrio added: (Exhibit A: p 69)

“ ... In my opinion there are significant psychological contributions to both the personality change and the mood disorder (depression) but where there is brain injury, the psychological disturbances are considered as secondary to the organic changes.”

234 Associate Professor Quadrio thought Cameron suffered from Post Traumatic Stress Disorder (“PTSD”) which was more clearly psychological (Exhibit A: p 70). The impact on the family had been devastating. Associate Professor Quadrio said this: (Exhibit A: p 71)

“Inevitably the effects of Cameron’s condition on the family have been quite devastating and have exhausted his parents and possibly his siblings. I did not have the opportunity to assess his brothers but it would appear that all of them have been badly affected by Cameron’s injuries and their impact on family life, ... ”

235 Associate Professor Quadrio described the prognosis in these bleak terms: (Exhibit A: p 72)

“With regard to the more psychological disturbances, if this were a case of Chronic Posttraumatic Stress Disorder without any neurological complications the prognosis would be guarded at this stage because more than two years have elapsed and the most cases of PTSD begin to resolved by that time. Those that do not resolve in that time frame have a poorer prognosis. Thus on this basis alone there is reason to be cautious about the outcome. However, that is overshadowed by the fact that Cameron most likely has residual brain injury and neurological deficits and to that extent some of his difficulties are likely to be irreversible.”

(emphasis added)

236 Cameron saw Associate Professor Quadrio again in February 2008. A further report was prepared (Exhibit A: p 116). Associate Professor Quadrio had been provided with other medical reports, including those of Dr Mellick and Associate Professor Reid (Exhibit A: p 117). In the light of that material, she amended her opinion, as follows: (Exhibit A: p 125)

“I noted in the first report that there is ‘a complex interplay of psychological and organic factors and a considerable overlap of symptoms determined by each’. I would amend that now only to say that psychological factors have played a major role in perpetuating and magnifying his condition over time. It is more apparent now that there is a considerable amount of secondary gain that has developed around this injury however Cameron still manifests features that are highly suggestive of a frontal lobe syndrome: he has become self centred, egocentric, demanding and seemingly with little consideration for the feelings of others and was very bland when he described the amount of chaos that he is generating in the household. These features are highly characteristic of a frontal lobe syndrome and of a post brain injury personality change.”

(emphasis added)

237 Cameron remained intensely fearful, avoiding certain activities, which was limiting his capacity to progress psychologically in an age appropriate way. Associate Professor Quadrio said this: (Exhibit A: p 125)

“ ... If this is not ameliorated during his teenage years he is likely to remain seriously handicapped in terms of social and sexual adjustment. These are critical years during which adolescents consolidate their personality development in these areas.”

238 Associate Professor Quadrio was asked to comment upon the relationship between Cameron’s symptoms and his head injuries. She said this: (Exhibit A: p 127)

“Dr Bacon suggests that there is no neurological contribution; Dr Buckley suggests that there is a brain injury syndrome; Prof Reid finds evidence of disturbance of frontal lobe function. In my view, psychiatrically the picture is consistent with frontal lobe syndrome but ultimately that diagnosis must be supported by a neurological opinion.”

(emphasis added)

239 Associate Professor Quadrio then identified other possible contributing factors: (Exhibit A: p 127)

“The systemic and psychodynamic issues that may be relevant contributors to shaping Cameron’s post injury behavioural disturbances include: his father is permanently incapacitated due to a brain injury and this provides an obvious source of identification for Cameron; there has been considerable conflict and unhappiness in the family surrounding the religious conflict and the alienation from other family members – this has been an ongoing difficulty for the family for some years; his older brother is extremely bright and very successful at school and this may be an issue for Cameron as well – although I note that the father does not share this view and believes that Cameron has not felt less adequate than his older brother. The combination of these factors may be reinforcing and magnifying Cameron’s difficulties so that rehabilitation is rendered more difficult than it might otherwise be. These may constitute what is known as ‘secondary gain’ – the reinforcements that may operate to sustain illness behaviour. ... ”

240 Some of the factors identified by Associate Professor Quadrio were drawn from medical reports furnished to her. Associate Professor Quadrio adverted to the religious background of the family which, as stated, was an issue hardly touched upon in evidence. I do not believe it was an important factor. The overwhelming evidence was that, before the accident, the family was happy and functioned well, including Cameron.

241 Associate Professor Quadrio added: (Exhibit A: p 127)

“ ... However this is secondary or complicating and not primary – the original problem was the accident and its aftermath and in my view it is highly unlikely if not impossible that Cameron would otherwise have reached such a position of extreme disability. It is likely that the capacity of the family to cope with his disability more adaptively has been overwhelmed and that unwittingly they have been drawn into a dynamic in which illness behaviour is reinforced. This is a complication of the original injury and in my view is not the primary problem.”

242 Dr Leonard Lee is a psychiatrist qualified by the defendants. He provided a report of 11 June 2008, having seen Cameron the same day (Exhibit 5). He, like Dr Roberts, was provided with a good deal of background material, some of it containing the same inaccuracies to which reference has been made. That material influenced his view and it is perhaps better, therefore, to go to his evidence, where he gave his view, the assumptions having been corrected.

Concurrent evidence of Associate Professor Quadrio and Dr Lee.

243 A joint report was prepared by Associate Professor Quadrio and Dr Lee (Exhibit C), although again in the case of Dr Lee his view, at that point, assumed the accuracy of information he had been given. The issues were drawn to Dr Lee’s attention during the concurrent evidence (T 215/216). Cameron’s father had given evidence, unchallenged, that Cameron had not sucked his thumb after the age of five years. Cameron was not cross examined to suggest otherwise. Associate Professor Quadrio would not, in any event, have attached great significance to thumb sucking unless it were accompanied by other serious symptoms (T 217/218). Dr Lee ultimately accepted that Cameron was functioning reasonably well before the accident (T 220). He also accepted that the family was doing its best to cope with a difficult situation (T 221). He was concerned, nonetheless, that Cameron had been labelled as having a significant brain injury and that had contributed to permissiveness about his behaviour (T 220). The family dynamics had therefore contributed to the perpetuation of symptoms (T 220).

244 Dr Lee, nonetheless, recognised that the accident was the significant cause of Cameron’s present condition. He said this: (T 220)

“HIS HONOUR: So do I understand from that, that the event was in combination with the family dynamics, a cause?

LEE: Yes, it's true that without the events we don't know what would have happened. It's true that the evidence suggests that he was functioning reasonably well before the events, that's certainly true. So, yes, the events, the perception of the event and the perception of its implications I believe are all part and parcel of the sequelae.”

245 He added: (T 221)

“HIS HONOUR: Well, within that context, is the event a substantial contributing cause to what we now see?

LEE: As far as I can see, yes.”

246 Associate Professor Quadrio, in the joint report, addressing the question whether the injury on 24 April 2004 had caused or contributed to Cameron’s condition, answered in these terms: (Exhibit C: p 3)

“Dr Quadrio believes that it is the critical event that precipitated a complex series of events later that have led to serious incapacity.”

247 In the same report, she elaborated as follows: (Exhibit C: p 3)

“Dr Quadrio is of the view that there are undoubtedly psychological and family systems issues maintaining and possibly perpetuating incapacity but that does not alter the critical nature of the original incident.”

248 Associate Professor Quadrio was asked whether, in addition to the family dynamics referred to by Dr Lee, there was an “organic component” which explained Cameron’s symptoms. She responded as follows: (T 221)

“Well, I think definitely that - Professor Reid's neurosurgery testing shows disturbance of executive function and we have the initial injury which definitely happened, initial signs of haemorrhage, contusion and so forth in the brain which were definitely there and then subsequently obviously the brain has healed from the haemorrhage and the contusion but the evidence that there is some disturbance of brain function is evident not only in his observed behaviour but in the neuropsychological testing.”

249 Associate Professor Quadrio drew attention to the MRI on 28 November 2004. Some seven months after the injury, it still showed organic disturbance of the brain function, namely, bruising and contusion. She added: (T 222)

“ ... That doesn’t mean to say that the physiological function of the brain will go back to normal.”

250 The following question was then put: (T 222)

“HIS HONOUR: I see. Can you just elaborate upon that. One, I think there is common ground in this case that intellectual function, that is to say sort of performing IQ type tests I gather, suggest that there was no cognitive deficit but can the damage be to emotional function or other aspects of the brain?

QUADRIO: Yes, there's - there's impairment of his executive functions which are shown on the neuropsychological testing and then there's obvious signs of personality change and Dr Lee has said that most brain injuries improve and it's true but most doesn't mean all and there are lots of - there's lot of literature showing that there are a minority of cases that go on to chronic disturbance of one sort or another.”

251 Associate Professor Quadrio’s attention was drawn to the MRI on 12 January 2005, which showed no abnormality. She said she believed that there can still be physiological disturbances of the brain function once the immediate damage has resolved (T 224, 226 line 45). Here, according to Associate Professor Quadrio, the defects in executive function revealed by Associate Professor Reid’s testing and described by family members, were consistent with frontal lobe damage (T 228).

252 Dr Lee agreed that scans may improve, and yet the patient may still have brain damage (T 229). Subtle signs of brain dysfunction may remain (T 228). Here, however, Cameron presented as quite mature and impressive. Although it may be assumed that giving evidence is reasonably stressful, he was articulate and reasonably composed. He complained of headaches on the second day, but throughout his answers were reasonably lucid (T 230).

253 Associate Professor Quadrio stated that, putting to one side whether the damage to Cameron was organic, the psychiatric damage cannot be doubted. She said: (T 224)

“ ... if I could make the comment, that by the time we get to January '05 which is now some 8 months post injury what we have is 8 months have gone by and during that time the lad has been firmly of the belief that he has a very serious head injury. He's been frightened by it. He's been quite traumatised by the experience. Rightly or wrongly he's had a notion in his mind that he's come close to death or quadriplegia or some catastrophic outcome and, rightly or wrongly, that is the kind of psychology of what's going on at that stage. So the boy had had a lot of severe trauma symptoms at that stage relating to his fear and his understanding that something terrible had happened and I think those expectations and the fear are also very important to be considered in how the entire syndrome is established thereafter.”

254 Dr Lee, in his report and evidence, emphasised the concept of secondary gain as a major factor accounting for Cameron’s disability. In the joint report, he said this: (Exhibit C: p 3)

“Dr Lee is of the opinion that significant family dynamics, the gain involved in litigation, labelling and attribution are the major factors involved in his current disability.”

255 By “secondary gain” is meant the use of symptoms, or the sick role, to derive benefit (T 235/236). What did Dr Lee mean by “gain in litigation”? He acknowledged that manufacturing symptoms for money was one possible interpretation (T 237). But, a more nebulous form would be compensation for something not your fault, absolving the person from the need to apply themselves (T 237).

256 Associate Professor Quadrio acknowledged the potency of secondary gain as a force that can reinforce illness. She previously acknowledged it may be part of the explanation (Exhibit A: p 127; supra para [239]). However, having heard the corrections to assumptions made by Dr Lee, and a summary of the evidence concerning the family before the accident, Associate Professor Quadrio discounted secondary gain as an explanation for Cameron’s symptoms. She said this: (T 237)

“QUADRIO: ... I think that in a boy of this age and with that pre-morbid adjustment it's very difficult to really make a strong case for secondary gain because the things that are important to lads of that age are things like being with a peer group, participating in sport, progressing at school, being as good as his brothers, continuing to play the saxophone, those sorts of things. If this were a boy who had a marginal adjustment, who was struggling to keep up with his peers or struggling to find a place in the family or maybe feeling - and there might be a time element of this, but let's say dramatised being completely overshadowed by an older brother who was performing well or very disturbed by the fact that his father's not able to work like other fathers are, if all of those elements were really powerful, then one could say well, perhaps this accident has come along and provided him with the opportunity to step into a sick role and to absolve himself of the responsibility of having to complete and pass his milestones and achieve all the things that are expected of him. I don't see that that scenario is applicable to this lad. I think this is a lad who had the capacity to achieve and to perform and that the gain that would come to him from continuing to achieve and perform was much greater than the gain that would come to him from adopting a chronic illness position.”

(emphasis added)

257 She later added: (T 239)

“Considering he was around ten when this began, I think that concepts such as the gain from litigation and so forth are not really very important in the mind of a ten year old. Much more important is being there with the other kids, doing what the other kids are doing, being in the football team, keeping up your saxophone lessons. I think those things are of great importance to a ten year old.”

258 I intend to state my view concerning the evidence, once it has been assembled. However, I should say at this point that I accept the evidence of Associate Professor Quadrio that Cameron’s symptoms are not the product of his seeking secondary gain.

259 The experts then addressed a number of issues, including:

the impact of Cameron’s injuries upon him;

the TAFE course he is now undertaking;

his work prospects;

his loss of earning capacity;

his prognosis.

260 So far as the impact upon his life is concerned, the experts were agreed. They said this in their joint report: (Exhibit C: p 4)

“It was agreed that the impact on Cameron and on his life has been very serious.”

261 Five years having elapsed since the accident, Associate Professor Quadrio said this: (T 232)

“I think in terms of his prognosis the prognosis is poor no matter what the balance of organic versus psychological because he's - the train has left the station really in terms of his reaching his developmental milestones. He has fallen behind his peers academically and socially and in all kinds of ways. It is going to be extremely difficult for him, if not - I think it is getting close to impossible for him to get back on to a normal track because he's dropped out so much.”

(emphasis added)

262 Associate Professor Quadrio added these words, referring to the evidence that Cameron had just commenced his TAFE course and appeared to be well motivated: (T 234)

“I agree completely that he is functioning better, that he has moved down from the first division to the third division. He was obviously a boy who was well capable of tertiary level education and he has now had to drop out of high school and it is only one or two weeks into the TAFE course. Goodness knows how he'll progress. But I think, yes, he's dropped down considerably from his pre-morbid level of function and also by comparison with his three brothers too. That may also be a very relevant factor in the future, that his performance has - four of them, as functioning below the level that others obtained. That too will be significant.”

(emphasis added)

263 Dr Lee responded that life has many complex trajectories. Just because someone does not go to university does not mean they are in the “third division” (T 234).

264 Can it be assumed that Cameron will successfully complete the TAFE course? Associate Professor Quadrio thought it significant that the recent improvement in Cameron coincided with his leaving school (T 244). The debate between the experts was as follows: (T 244)

“QUADRIO: ... if his improvement is because of a great sense of relief because he couldn't organise himself in a traditional school setting, then I wonder whether that provides more evidence at the executive level, you know, he has not been able to get it together to function in a school environment and he's hugely relieved at being out of it. I wonder whether that's not--

HIS HONOUR: Will the same problem arise in the context of TAFE?

QUADRIO: I wonder if he will pass the first week or two. Maybe there is a honeymoon period that he is no longer struggling in the school environment that he was struggling in for a couple of years and I think it is one-to-one tuition as well rather than surviving in a class.

HIS HONOUR: Could I just get Dr Lee's comment on that?

LEE: Thank you, yes. Certainly it is a one-to-one situation and we don't know how he will go in the broader context of TAFE when that is taken away from him, but I can only go, I guess, on the fact that he has presented well here and there's been no evidence that - apart from his teacher, I understand ... ”

265 Associate Professor Quadrio added: (T 244)

“Well, it may well assist him, but I think the point again to be made is that he's gone from not being able to survive in a normal school environment to possibly surviving in what's really a special environment for someone who's not surviving in the regular school system.”

266 Both experts gave evidence relevant to Cameron’s loss of earning capacity, and the need for future care. Their joint report said this: (Exhibit C: p 4)

“It was agreed that Cameron’s care requirements are minimal if any in that he is able to take care of his physical needs, but his lack of personal skills will be a significant handicap in terms of employment and his prospects in that area will remain poor. Similarly difficulties in interpersonal relationships will hamper him in terms of social and interpersonal progress.”

267 Counsel for the defendants asked the following question, referring to Cameron’s expressed interest in working with animals: (T 242)

“POLIN: And I think he has obviously spent a lot of time down at the Currumbin Wildlife Sanctuary and I think he has indicated that between 16 and 18, I can't remember exactly what he said, but it is either he could work part-time or do voluntary work, but after 18 he could apply for work there at the sanctuary. I take it you'd accept that that would be the kind of work you think he'd be able to do?

QUADRIO: Well, I think the problems with Cameron are whether his personality disturbance is going to get in the way of him surviving. He's causing a lot of disruption within the family because of irritability and aggression and inability to get along with people and his family, whether that will spill over into a work environment. If it does, that will make life very difficult for him. I am sure he may have the capacity to do the task, but whether he has the capacity to survive interpersonally in a work environment, that is a different issue.”

(emphasis added)

268 The examination continued: (T 243)

“POLIN: ... Dr Quadrio, in terms of jobs, is it the case, I mean I can think of plenty of jobs where with the problems he's got they'd be terrible, but this is a job working with animals, it seems to me it's probably one of the better jobs in terms of a job that he should be looking at doing, would that be a fair -

QUADRIO: Well, his work with the animals may be fine, but he'll always be in a context where he has human colleagues.

POLIN: I suppose what I am getting at is a position where there is less human contact is the better position for him to be looking at?

QUADRIO: In terms of his interpersonal problems, yes.”

269 The experts were agreed upon the prognosis. Their joint report said this: (Exhibit C: p 5)

“It was agreed that unless his situation can be turned around in the near future the long term prognosis for Cameron is quite poor.”

(emphasis added)

Award for non economic loss.

270 What amount should be awarded under s 16 of the Act for General Damages? What is the appropriate percentage of the most extreme case (s 16(3))? The plaintiff, in submissions, suggested 55% of the most extreme case. The defendants, whilst acknowledging that it was a “serious injury” (DS: para [55]) and a “nasty injury” (DS: para [81]), suggested that the Court would not be satisfied that the plaintiff had suffered organic brain damage and 30% of the most extreme case was appropriate (DS: para [103]).

271 Unquestionably, Cameron suffered a significant head injury (cf Dr McMaster: report 17.12.04) (supra para [144]). His skull was fractured and his nose dislocated. It is also clear that his brain was injured, as revealed by abnormal scans during the period 23 April 2004 (supra para [130]) and 28 November 2004 (supra para [132]). The only issue is whether that injury caused permanent damage, contributing to Cameron’s disablement. I believe it did. I take that view for a number of reasons.

272 First, I accept that before the accident Cameron was a normal, happy child. He was doing well at school and, like his siblings, was full of promise. I reject the suggestion that he came from a family that was dysfunctional (supra para [127]).

273 Secondly, the impact upon Cameron of his injuries was immediate and profound. His personality changed. He became aggressive. He suffered from mood swings. He could not concentrate. He was angry and disruptive. He lost friends and became reclusive, spending many hours at home at his computer (supra para [170]). He was also acutely aware of these changes and bewildered by them (supra para [171]). Although ten years old, he felt that life was not worth living and threatened suicide (supra para [171]).

274 Thirdly, his symptoms have persisted for more than five years, apart from his depression which has fluctuated. The evidence does not suggest that the change in the scan in January 2005 was accompanied by an improvement in these symptoms. Indeed, Cameron’s symptoms became worse as he made the transition from the structured environment of primary school to the more demanding environment of high school. The worsening of symptoms may, in part, have been the product of fear and psychological factors described by Dr Roberts (supra para [218]). However, they were also consistent with frontal lobe damage which, on the evidence, I believe was also present. The manifestation of such damage was difficulty with executive function, that is, the capacity to plan, organise and follow through (supra paras [216]/[217]).

275 Fourthly, I found Associate Professor Reid a most persuasive witness. I accept as plausible and probable his explanation of a contra coup injury (supra para [195]). I find unpersuasive Dr Roberts’ view that Cameron’s complaints were most likely psychological in origin (supra para [200]). It seems to me that, on any view, at least during the period when the scans were abnormal, part of the explanation for Cameron’s symptoms must include an organic component. The scans remained abnormal for a period of at least seven months. Dr Roberts said that, had there been organic damage, she would have expected an impact “across the board” whereas, on the information she had, she believed that Cameron had coped well at first, including at school (supra para [201]). Whilst one can understand that view on the material provided to Dr Roberts, I believe that the impact was immediate and “across the board”, including at school. The reaction at school was not as pronounced at first because it was a structured environment.

276 Fifthly, I was also greatly impressed by Associate Professor Quadrio and prefer her evidence to that of Dr Lee. Associate Professor Quadrio supported a diagnosis of frontal lobe damage, with psychological factors making their contribution (PTSD and adjustment disorder). For the reasons given by Associate Professor Quadrio, I found Dr Lee’s opinion concerning secondary gain unpersuasive.

277 Finally, I accept the evidence of Dr Stephen Buckley that there was brain injury (supra para [168]). I prefer his evidence to that of Dr Mellick, who saw no evidence suggesting that Cameron’s persisting symptoms were caused by organic brain damage. Having expressed that view in his initial report, Dr Mellick asked to be supplied with all previous scans. However, the material provided did not include the MRI of 28 November 2004, which was abnormal. Dr Mellick, therefore, was left with the impression that there had been an abnormal CT scan on the day of the accident (23.4.04), a normal CT scan two weeks later on 4 May 2004 (supra para [131]), and a normal MRI scan on 12 January 2005 (supra para [134]). The picture he had was thus very different from the picture which emerged from the evidence, which included an abnormal MRI seven months after the accident on 28 November 2004 (supra para [132]). Associate Professor Quadrio said this, referring to the MRI of November 2004: (T 222)

“Right. November ’04 so that’s a good six, seven months after the injury and there’s still some (abnormality). So it seems to me there’s no question that there’s an organic disturbance of brain function and it would appear that the actual damage here was in terms of bruising, contusion and so forth. That doesn’t mean to say that the physiological function of the brain will go back to normal.”

(parenthesis added)

278 The symptoms manifested by Cameron have now been present for more than five years. These were crucial years in his development. Although some of his fears may abate with maturity, the broad picture is unlikely to change. I repeat the opinion of Associate Professor Quadrio concerning the prognosis, which is plausible and which I accept: (supra para [261]) (T 232)

“I think in terms of his prognosis the prognosis is poor no matter what the balance of organic versus psychological because he's - the train has left the station really in terms of his reaching his developmental milestones. He has fallen behind his peers academically and socially and in all kinds of ways. It is going to be extremely difficult for him, if not - I think it is getting close to impossible for him to get back on to a normal track because he's dropped out so much.”

(emphasis added)

279 Associate Professor Quadrio and Dr Lee, in their joint report, stated that the impact of this accident upon Cameron and his life has been very serious. I accept that view. It is the more serious because Cameron is acutely aware of his limitations and what he has lost. His disabilities are likely to interfere with many aspects of his life, including employment and relationships. He is still, obviously, a very young man. He will be especially vulnerable as he passes through adolescence and early adulthood (supra para [223]). Although he has real strengths, including an intellect which is largely intact, his loss has been very significant. I believe that loss should be regarded as 50% of the most extreme case ($225,000).

Economic loss.

280 In view of the plaintiff’s age at the time of the accident, no claim is made for past economic loss.

281 What, then, of the future? Section 13 of the Civil Liability Act 2002 is in these terms:

13 Future economic loss—claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

282 What would Cameron have been likely to earn had he not been injured? Cameron, even at the present time, presents as a personable, articulate and intelligent young man. I accept (and repeat) the following opinion expressed by Associate Professor Quadrio: (supra para [262]) (T 234)

“I agree completely that he is functioning better, that he has moved down from the first division to the third division. He was obviously a boy who was well capable of tertiary level education and he has now had to drop out of high school and it is only one or two weeks into the TAFE course. Goodness knows how he'll progress. But I think, yes, he's dropped down considerably from his pre-morbid level of function and also by comparison with his three brothers too. That may also be a very relevant factor in the future, that his performance has - four of them, as functioning below the level that others obtained. That too will be significant.”

(emphasis added)

283 I accept that Cameron would certainly have obtained the Higher School Certificate. I also believe it very likely that he would have obtained tertiary qualifications. The plaintiff, in supplementary submissions, drew attention to the average earnings of an adult male, working fulltime in Queensland, in the period after 1 September 2008 (cf Evidence Act 1995, s 159). The Bureau of Statistics suggests that such a person would earn $1,260.30 gross per week ($992.64 net). I believe that figure is conservative. The plaintiff may well have earned significantly more than that, especially if he had a tertiary education. Again being conservative, I will assume a figure of $1,000 net per week. In reaching that figure, I have taken into account that there is no certainty that Cameron would have obtained tertiary qualifications.

284 What is the contrast? What is Cameron now likely to earn? His likely future is, in part, bound up with whether he will successfully complete the TAFE course he is undertaking. Cameron was well motivated and optimistic. The course is structured to provide small classes with tuition which is effectively one on one. Associate Professor Reid regarded such an environment as “ideal” (T 354).

285 However, it is by no means certain that Cameron will be successful. The organisational, planning and fatigue issues which made high school so difficult for him will, to a lesser degree, again present challenges to him. Associate Professor Quadrio clearly had real concerns that his optimism and present determination may simply reflect his relief at escaping from school and its pressures (supra para [264]).

286 After the honeymoon period, completing TAFE is also likely to involve some pressure. Mr and Mrs Thomas are dedicated to assisting Cameron. They will, no doubt, do their best to ensure his attendance at TAFE, just as they did at high school. I believe it likely that Cameron will complete his course. Nonetheless, any assessment must recognise that there is a significant risk that he may not; and were he to fail, his future is likely to be even more difficult (cf Associate Professor Reid: supra para [219]). The risk of failure should be reflected in the discount applied to his likely future earnings in his injured state.

287 Assuming Cameron were to successfully complete the TAFE course, he must then find a job. He has voiced an interest in animals, and expressed a desire to work in animal husbandry. The plaintiff attached to its supplementary submissions the Veterinary Practice Employees’ State Award, which suggested that his earnings in that vocation were likely to be about $494.00 net per week (PS: Sup para [14]). The defendants, in their submissions, provided an estimate of about $500 net per week (DS: para [107]), which I adopt.

288 However, it is by no means certain that Cameron will be able to secure and hold a job in his chosen field. First, Associate Professor Reid pointed out that people with frontal lobe damage can readily articulate their wishes and plans, but executing those plans is problematical (supra para [220]). Secondly, Cameron will be especially vulnerable and, one infers, may breakdown, as he “(weathers) adolescence and (enters) adulthood” (Professor Reid: T 355; supra para [223]). Continuity of employment throughout his life, and especially in these early years, is likely to be difficult. Thirdly, even once Cameron has a job, his capacity to relate to his fellow employees is likely to give rise to difficulties, which in turn will make his job less secure. Associate Professor Quadrio and Dr Lee, in their joint report, said this: (Exhibit C: p 4)

“ ... his lack of personal skills will be a significant handicap in terms of employment and his prospects in that area will remain poor. Similarly difficulties in interpersonal relationships will hamper him in terms of social and interpersonal progress.”

289 Associate Professor Quadrio, when cross examined, agreed that unquestionably Cameron had the capacity to do what was required of him in the field of animal husbandry. However, his survival interpersonally in a work environment was a more difficult issue (T 242; supra para [267]).

290 It would be unrealistic, in these circumstances, to assume that (apart from vicissitudes) Cameron is now likely to earn $500 net week in, week out. That figure should be discounted to $400 per week, so that the likely net loss is $600. That amount must be further adjusted because it would take time (perhaps six years) to complete the Higher School Certificate and obtain qualifications. Completing TAFE and being in a position to commence animal husbandry will take perhaps two years. It was said that Cameron had expressed interest in working in a wildlife sanctuary, where the commencement age is 18 years (which would involve a three year deferral). However, the likelihood is he could work somewhere, in some capacity, in the year before that. Hence, comparing his likely wage earning future, had he not been injured, and what is now likely to happen, the loss should be deferred four years. It is also subject to a discount of 15% for vicissitudes. A retirement age of 65 years is assumed (44 years after qualifying). On the 5% table, the plaintiff’s loss is $396,435 (being 944.5 x $600 x .823 x .85).

291 The defendants submitted that it was impossible to calculate any future economic loss based upon a continuing weekly loss (DS: para [108]). Rather, a cushion of $50,000 should be allowed, representing two years net earnings in the employment that Cameron is now likely to pursue.

292 I readily agree that it is difficult with one so young, and with so many variables, to arrive at a figure. Nonetheless, I believe that approaching the matter in the way that I have set out above provides a more realistic assessment of the loss of earning capacity suffered by Cameron, and more closely reflects the methodology contemplated by s 13 (cf Kallouf v Middis [2008] NSWCA 61 (McColl JA and Hall J at para [7])).

Future superannuation.

293 The allowance for the loss of future superannuation should be 9% of the amount awarded for loss of earning capacity, namely $35,679 (s 15C(2) of the Act).

Out of pocket expenses.

294 Agreed $5,267.50.

Future out of pocket expenses.

295 Throughout the material tendered various doctors, including those qualified as experts, made suggestions as to the treatment that should be undertaken by Cameron. The plaintiff, in submissions, gathered together such comments as the basis for his claim in respect of future out of pocket expenses. The submission was in these terms: (PS: p 32/33)

“Possibility of septoplasty $3,000.

Possibility of aides to assist in skills-based training if the plaintiff continues with education say 4 years @ $250 per week for 39 week year = $187.50 in 52 year x 4 years @ 5% $35,500.

Brain injury specialist twice annually @ $110 per visit = $4.23 per week x 1034.2 = $4,374.66.

General practitioner four times annually = $4.46 per week x 1034.2 = $4,612.53.

Psychiatric treatment until age 24 years @ $250 per week = $250 x 412.9 = $103,225.

Medication @ $30 per week x 412.5 = $12,375.

Family therapy for 10-12 sessions @ $250 per week = $3,000.

Inpatient admission to Rivendell or Redbank House, travel and family visits say $10,000.

Total future out of pocket expenses $176,137.”

(references to exhibits omitted)

296 The defendants responded that such a submission was unrealistic, when compared to past out of pocket expenses ($5,267) (DS: para [110]). The defendants acknowledged that there was a need for some future treatment. Dr Roberts had recommended 20 sessions of psychological treatment (T 361) and perhaps 10 family sessions, each somewhat longer, addressing issues of family dynamics (T 361). At $180 per hour, that would cost about $7,200. The defendants submitted that, even if one were generous and allowed 100 hours, the cost should not exceed about $18,000 (DS: para [111]). There was no evidence, according to the defendants, that Cameron was likely to undertake any other significant treatment (DS: para [112]).

297 Dealing with these submissions, the past out of pocket expenses are not a reliable guide to future care. Cameron was admitted to a number of hospitals. He has seen many doctors and undertaken many sessions with psychologists. The agreed out of pocket expenses cover part only of that cost ($1,816 for pharmaceutical expenses, $831 for treatment expenses and $2,620.50 for travelling expenses) (DS: para [109]). Presumably, many other items were either paid by Medicare or by private health care.

298 Dealing with the items in the plaintiff’s submissions, there is no certainty that Cameron will require and will undertake the nasal operation that Dr Malouf contemplated he may need (supra para [136]) (cf Dr Carroll: supra para [174]). Half the amount claimed should be allowed ($1,500).

299 The suggestion that Cameron may need “aides to assist in skills-based training”, were he to continue his education, was made by Associate Professor Quadrio in August 2007 (Exhibit A: p 73). Associate Professor Quadrio also later suggested that he may benefit from admission to Rivendell or Redbank House as an inpatient, although he would then require support from his family (some of whom would need to move to Sydney for a time). Both these suggestions were made at a time when Cameron was at school and not coping. He has since left school and is presently undertaking the TAFE course, with a view to pursuing a particular career with animals. The suggestions by Associate Professor Quadrio do not appear to have any real justification in view of the way in which matters have developed.

300 It is reasonable, on the other hand, that Cameron should see a brain injury specialist twice a year, as recommended by Dr Buckley (Exhibit A: p 88/89) ($4,374.66), and a GP four times a year ($4,612.53). It is also reasonable that some allowance should be made for medication. He presently takes medication costing $30 a week, and I infer that he is likely to require medication to at least that level for the rest of his life ($12,375).

301 Cameron has been diagnosed with a number of psychiatric conditions (PTSD, adjustment disorder and, periodically, depression). He has had, in the past, and will require in the future, at least for a time, regular counselling sessions. I believe $20,000 is a reasonable allowance for that form of treatment.

302 Such a regime, however, makes no provision for psychiatric consultation or acute care, should Cameron need it. Cameron is only 15 years old. He suffers from significant disabilities. He has already experienced depression. He has, as mentioned, been diagnosed with a number of psychiatric disorders, quite apart from frontal lobe damage and its attendant difficulties. His future is uncertain and likely to be difficult, especially if he experiences unemployment, which again is likely, at least periodically. He will need to cope with the likely success of his brothers. I believe, in these circumstances, that some reasonable allowance should be made for psychiatric consultation and even acute care in the course of what is likely to be a long life. Fixing upon a sum is difficult. Doing the best I can, I believe that a reasonable allowance is $25,000.

303 The future out of pocket expenses that should be included in the verdict therefore are as follows:

Possibility of septoplasty	$1,500.00
Brain injury specialist x 2 per annum	$4,374.66
GP visit x 4 per annum	$4,612.53
Medication for life	$12,375.00
Counselling	$20,000.00
Psychiatric acute care	$25,000.00
Total future out of pocket expenses	$67,862.19

Past care.

304 Mrs Thomas and her husband gave detailed evidence of the impact upon them and the family of Cameron’s accident and his disabilities. The absence of executive function meant that Cameron had to be assisted in many aspects of his life, where organisation and planning was required. There was, each morning, a time consuming struggle to mobilise Cameron to get him to school. To a lesser degree there was the same struggle each night. Cameron could be aggressive, even violent, such that supervision of the younger children was required, as well as mediation concerning the many disputes which inevitably erupted. Cameron resisted going to school by bus for various reasons, including the noise. He often required transport home, either because he was unwell or in trouble. His parents took him to various medical appointments and waited. Mrs Thomas ultimately reduced her work hours to nine days per fortnight, in order to accomplish the many additional tasks that had to be undertaken to cope with Cameron’s disabilities (T 198).

305 Mr and Mrs Thomas identified each such task and estimated the average time taken each week in respect of it (Mr Thomas: T 174/175; Mrs Thomas: T 195-200). The plaintiff, in submissions, tallied these estimates, suggesting that past gratuitous care entailed 23.15 hours per week. On that basis they sought an allowance of 20 hours per week at $21 per hour for 256 weeks ($107,520).

306 The defendants acknowledged that the task of assessing past care was “extremely difficult” in view of the provisions of s 15(2) and (3) of the Act. It was submitted that, based upon the out of pocket expenses, the only legitimate claim was for the travel time expended in taking Cameron to his various appointments. They calculated that time at $1,890, which they suggested should be incorporated in the award, together with a “cushion” of “say $15,000” (DS: para [114]).

307 Inevitably, any assessment of past care must be broad brush. I do not doubt that the parents of Cameron have spent a very considerable time performing each of the tasks described, made necessary by his disabilities. Rather more time may have been required when Cameron went to high school, when the journey to school was longer and the demands upon him greater. However, it is reasonable to allow 8 hours per week, from the date of the accident to date, at $21 an hour, a total of $45,360.

Future care.

308 The plaintiff submitted that, on the evidence, Cameron is at risk of harming himself and others (PS: p 36, para [103]). It was said that he needed ongoing assistance, since his inability to plan and organise himself is likely to remain. Further, assistance with his financial affairs is desirable, including teaching him about things such as paying bills (Associate Professor Reid: T 358). There was no specific evidence as to what was required in the future. The plaintiff suggested a reasonable allowance would be 10.5 hours per week, at $21 per hour (PS: p 36, para [106]). The allowance for future care should therefore be $244,353.

309 The defendants submitted that the plaintiff had not established that Cameron required the statutory minimum of 6 hours per week in respect of future care (DS: para [115]). The defendants drew attention to the statement jointly made by Associate Professor Quadrio and Dr Lee in their report, when they said this: (Exhibit C: para [6])

“It was agreed that Cameron’s care requirements are minimal, if any, in that he is able to take care of his physical needs ... ”

310 Dealing with these submissions, I believe that the joint report of Associate Professor Quadrio and Dr Lee was referring to Cameron’s ability to live independently, which requires mobility, the ability to wash and cook and so on. The experts believed that he will be able to do that. However, I think it also likely that he will require some assistance of the type now provided by his parents, at least until he is more mature and established (say, to the age of 22 years). Until that time he is vulnerable, for the reasons given by Associate Professor Reid. I believe it is reasonable to allow 8 hours per week until the age of 22 years (25.1.2016); total $57,792.

311 After that, I believe it also reasonable to provide a small cushion (by way of domestic assistance) against future difficulties since it is predictable, I believe, that Cameron will require assistance from time to time as he weathers crises in his life and especially his early life. An allowance of $20,000 should be included. The amount for future care should therefore be $77,792.

Funds management.

312 Being an infant’s claim, I should deal separately with the issue of funds management. Associate Professor Reid adverted to the issue and the plaintiff suggested, without elaboration, that provision should be made for it. In Nominal Defendant v Gardikiotis [1996] HCA 53; (1995) 186 CLR 49, Gummow J (at [67]) cited with approval the following passage from the judgment of King CJ in Campbell v Nangle (1985) 40 SASR 161: (at 192)

“It seems to me that the principles of the law relating to damages for tort require the inclusion in an incapacitated plaintiff’s damages of the amount which he will be required to pay to a manager by reason of his incapacity. A plaintiff is entitled to recover the loss caused by the tort. The fundamental principle upon which damages are assessed is the principle of compensation that the plaintiff is to be placed, so far as possible, in the same position financially as he would have been if he had not sustained the wrong for which he receives the damages. The capital sum awarded to him is computed upon the basis of an assumed real return from its investment. If the plaintiff has been rendered by the wrong for which he recovers damages incapable of managing his affairs so that the fund resulting from the damages must be managed for him, the fees payable to the manager will reduce the real return from its investment. Unless an amount is included in the damages to compensate for those fees, the plaintiff will not receive the full restitution to which the law entitles him. It seems to me that the liability for the fees is a loss flowing directly from the wrong and is recoverable as damages caused by the wrong. I should say for the sake of completeness that the same is true, in my opinion, where the plaintiff’s incapacity to manage his affairs does not result from the wrong but is antecedent to it, being the result of legal disability or some other cause.”

(emphasis added)

313 Since the plaintiff is under a disability, the damages awarded must be managed pursuant to the Civil Procedure Act 2005, at least until the plaintiff reaches his majority. It is appropriate for the award to include that cost, with provision to apply to the Court for further directions once Cameron reaches the age of 18 years (Ren v Mukerjee [1996] ACTSC 119; Pellow v NRMA and Anor [2004] NSWSC 152). I have no evidence concerning his aspect. Leave will be given to each party to make submissions in relation to it.

314 The plaintiff’s verdict (subject to the slip rule) should therefore include the following:

General Damages	$225,000
Past economic loss	nil
Future economic loss	$396,435
Future superannuation	$35,679
Out of pocket expenses	$5,268
Future out of pocket expenses	$67,862
Past care	$45,360
Future care	$77,792
Total	$853,396

Orders.

315 I therefore make the following orders:

1. There should be a verdict for the plaintiff in the sum of $853,396, subject to order (3) below.

2. The defendants should pay the plaintiff’s costs.

3. I give the parties leave to mention the matter within 14 days in respect of funds management and interest.

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LAST UPDATED:
26 June 2009