After sustaining a neurocognitive injury in a car accident at 10 months, a 21 year old plaintiff has been awarded over 6 million dollars in damages.
In issue
- The plaintiff, Daniel, suffered severe injuries in a car accident in 2003. Although liability for the accident was admitted, the claim proceeded to trial when the plaintiff was 21 years of age as damages were in dispute. Justice Kennett of the Supreme Court of the Australian Capital Territory ultimately awarded compensation to the plaintiff of over 6 million dollars.
The background
In 2003, the plaintiff and his family were involved in a significant car accident. The plaintiff was ejected from his baby capsule by the force of the collision, resulting in a brain injury, an orthopedic injury and an injury to his jaw. The plaintiff’s mother, who was 8 months pregnant, was killed in the accident. His father was rendered unconscious and suffered injury.
The plaintiff and his father moved to his father’s home country of Cambodia following the accident. His father remarried and had 2 further children. The plaintiff returned to live in Australia during primary school for specialized education and treatment. The plaintiff visited his father in Cambodia but otherwise lived with family friends in Canberra.
The plaintiff required significant supervision and encouragement with schoolwork and received poor results. Witnesses testified at trial that the plaintiff was withdrawn and isolated. The plaintiff was reluctant to interact with people, including children, and his social interactions were extremely limited. He did not participate in extra curricular activities and did not socialise outside of school. The plaintiff’s primary recreation was playing online games and reading books (though he typically ceased reading halfway through a book due to a lack of interest). Despite the plaintiff’s difficulties at school, he was awarded a high school certificate 2021. Since graduation, the plaintiff has not worked or engaged in further study.
The Court heard that the plaintiff is capable of keeping his room relatively clean and attending to personal hygiene, with prompting. Without reminders, the plaintiff omits to shower and to brush his teeth. The plaintiff contributed to the management of the house, if reminded. He is capable of re-heating meals but otherwise requires supervision in the kitchen. The plaintiff’s support network purchased a car so that Daniel could learn to drive, however Daniel showed limited interest.
Experts agreed that the plaintiff was suffering from a neurocognitive disorder with executive dysfunction, consistent with frontal lobe damage. There was also agreement that the plaintiff suffered from chronic adjustment disorder with depressed mood, connected with the grief of losing his mother. Although the plaintiff was capable of performing activities of daily living, there was no independence. Activities requiring planning, adaptability or flexibility were extremely difficult, if not impossible for the plaintiff.
The decision at trial
As Section 99 of the Civil Law (Wrongs) Act 2002 (ACT) does not impose a cap on general damages, Justice Kennett awarded $450,000. References were made to Hulanicki v Walton [2014] ACTSC 17 and Oliver v Roberts [2017] ACTSC 360 in reaching this conclusion. Interest of 35% was awarded.
As the plaintiff was injured at such an early age, nothing was known as to what his earning capacity would have been, but for the accident. The Court therefore considered the plaintiff’s environment, upbringing, and family’s employment. Justice Kennett found that it was appropriate to assume that absent the accident, the plaintiff would have entered the workforce or engaged in further study following high school. The average male full-time earning capacity was found to be an appropriate benchmark against which the plaintiff’s likely future earnings should be assessed. The defence’s argument that the plaintiff could work in the field of computers in the future was not accepted, neither was evidence forwarded by a vocational psychologist. Ultimately, the Court found that the plaintiff was unable to undertake employment in the future and the plaintiff was awarded $1,690,000 for future economic loss, plus loss of future superannuation.
For future special damages, the Court made allowances for vocational supports/ occupational therapy, case management assistance, roadside assistance, driving lessons, equipment, the cost of pet ownership and personal training.
The award for Griffiths v Kerkemeyer damages warranted significant analysis by Kennett J. Although the plaintiff was an infant at the time of the accident, the Court found that he would have required an increased level of care. Damages for past care and assistance were awarded in the sum of $208,244, plus interest. Justice Kennett considered that the plaintiff was likely to require more than just simple prompting with tasks in the future, as he was not capable of initiating activities essential to a healthy life and some intervention was needed. Additional care was awarded to allow the plaintiff to live independently. Although Kennett J accepted that, given the choice the plaintiff may not engage a carer, provision for services by a carer was made. Damages for future care and assistance were awarded in the sum of $1,701.904.22.
As the plaintiff was not considered capable of handling settlement monies, $1,000,000 was awarded for financial management.
Implications for you
This case provides a useful analysis of damages for plaintiff’s who have sustained a neurocognitive disorder during childhood.
Meas (by his litigation guardian Adcock) v Tipping [2023] ACTSC 187
