Danastas v Danastas & Anor [1992] QSC 290

( ( " State Reporting Bureagatqo TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold "ithout the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DEMACK J No 103 of 1989 GRAHAM FRANK DANASTAS and FRANK DANASTAS and GENEIVE DANASTAS ROCKHAMPTON . . DATE 11/08/92 JUDGMENT REVISED co;::-tES i~~SUEDl i (>:.~:ri R?::.!_,r:l:·.c Ct!r~.:;.u r . - ! Gste ltu ~ 1 qa j 1---·-·-·-·--··-·----~---- Plaintiff Defendants 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 18 -- 110892 (Demack J) HIS·HONOUR: In. this action I have reduced my reasons to writing, which I now publish. (> There will be judgment for the plainti.ff against the defendants for $317, 338 together ·with costs to be taxed. iO 20 30 (J 40 () 50 60 2 JUDGMENT -- 2 of 18 -- ( ( IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY No. 103 of 1989. BETWEEN: GRAHAM FRANK DANASTAS Plaintiff AND: FRANK DANASTAS AND GENEIVE DANASTAS Defendants JUDGMENT - DEMACK J. DELIVERED the 11th day of August 1992. CATCHWORDS: Negligence - Liability of Master for Injury to Servant - Plaintiff Struck by Timber Dislodged During Land Clearing - Failure to Install Protective Barrier on Tractor. Damages - Personal Injuries - Mild Organic Brain Damage and Post Concussional Syndrome - Contribution to Substance Abuse and Marriage Breakdown - Labourer aged 32 years. COUNSEL: Mr R. PACK for Plaintiff Mr D. McMEEKIN for Defendants SOLICITORS: JOHN TAYLOR & CO. for Plaintiff BARRY BEAVERSON & STENSON for Defendants HEARING DATES: 22nd to 23rd July, 1992. -- 3 of 18 -- ( ( IN THE SUPREME COURT OF QUEENSLAND MACKAY DISTRICT REGISTRY No. 103 of 1989 BETWEEN: AND: Graham Frank DANASTAS Plaintiff Frank DANASTAS and Geneive DANASTAS Defendants JUDGMENT - DEMACK J DELIVERED the 11th day of August 1992. Graham Frank Danastas was born on 29 January 1960. He left school when aged fourteen years, and began working in the sugar industry. Up to the age of twenty he had several jobs and then, for about eight years, he worked with trucks, plant and machinery, obtaining a number of plant operating tickets. On 10 August 1988, Mr Danastas was working for his parents, assisting with land clearing on a property they owned south of Sarina. There had previously been some clearing and ( burning of timber. Mr Boardman was driving a bulldozer, clearing trees and pushing up burned timber. Mr Banderiyken was stick picking. Mr Danastas was driving an old tractor which had a trash rake attached. He was using this to do stick raking. Whilst doing this a substantial piece of timber became caught in the tynes of the trash rake and struck him on the side of his head. The Plaintiff's employment by the Defendants was not in issue. The question of negligence was contested. There was no issue of contributory negligence. Quantum of damages was strongly contested. Evidence on negligence came from Mr Boardman and Mr Banderiyken as well as expert evidence from Mr Len King. The trash rake was designed to be used to rake up cane trash. It consisted of curved steel tynes attached to a cross -- 4 of 18 -- 2 member. It was attached behind the tractor and the tynes were convex away from the tractor. There were two rows of tynes and the tynes in each row were about six inches apart. The rows appear to be about the same distance apart (ex 19), but some uneveness in the spacing of the tynes is apparent in the photos. Mr Boardman and Mr Banderiyken said that when they found Mr Danastas injured, a piece of timber was wedged between the tynes, and projecting over the seat of the tractor. Mr Boardman described the timber as being approximately 8 feet long and 6 inches round at the base to about 4 inches at the (. top. Mr Banderiyken thought it was 1 3 feet long and bigger than 6 inches round. He thought it looked like a tree that had fallen and rested on the forest ground for some time. Mr ( Boardman thought it had been there from the previous time and had been buried or covered. It is not easy to picture how the piece of timber came to be wedged in the tynes and to strike Mr Danastas. However, that is what happened and the questions that must be addressed are whether there was a risk of such an event happening and whether reasonable steps could have been taken to remove that risk. ( The operation which Mr Boardman described involved working on undulating land. He was pushing heaps of logs and dirt apart, spreading the dirt and restacking the logs. The ( stick raking then followed to gather sticks. In such circumstances it was foreseable that the bulldozer would not expose all of the buried timber. It was foreseable that, on uneven ground, some of the tynes of the rake could travel into the ground and catch onto a piece of buried timber. Mr King described how the various forces would then build up, and it is apparent that no clear prediction could be made about how the build up of forces would resolve. Such a piece of timber could travel in any direction. The risk that it might hit the driver might be relatively slight, but it was a real risk which could carry serious consequences. The risk of such an occurence causing injury could be -- 5 of 18 -- ( ( I ~. 3 substantially removed by fitting roll bars to the tractor and welding a protective mesh to the bars. In Mr Boardman' s experience in using a bulldozer for clearing timber this is the usual sitution. Mr King expressed the opinion that it would not be expensive. this issue. I accept his evidence generally on I am satisfied that Mr Danastas has proved that the Defendants failed in their duty of care, specifically as pleaded in paragraph 4(b) of the statement of claim. An examination of the nature of the injury Mr Danastas sustained may begin by quoting the report of the Mackay Hospitals Board (ex.S):- Mr Danastas attended Accident & Emergency on 1 0 August 1988 on referral from Sarina. He stated that he had been hit on the top of his head by a lump of timber. He had not been knocked out. He complained of considerable pain and tenderness over the base of the cervical spine at the C6-7 level. By the time he arrived in Mackay, his neck pain had settled considerably. He had a normal range of movements and xray showed no abnormality. He also had a large deep laceration of the scalp down to the skull. This was sutured. He again presented on 12 August 1988 complaining of impotence since the accident. He also complained of continuingheadaches. On examination, the scalp laceration was healing well. Fundoscopy of his right eye showed an irregular disc. There were no other abnormal findings. He was treated with analgesics. He was reviewed by Dr Kirkwood in Opthalmology Clinic on 16 August 1988. He found a congenital glial tissue over the right optic disc which had no relationship to the head injury. He also attended Outpatients complaining ofcontinued headache, intermittent dizziness and lethargy.Skull xray showed a fracture of the left parietal bone. There were no localizing neurological signs. He was prescribed analgesia and physiotherapy for his neck pain. ACT scan performed on 17 August was normal. He was reviewed on 24 August 1988 at which time he was still suffering from headaches but these were less than before. He still felt tired. Clinical examinationshowed no abnormality. He was given a medical certificate for a further two weeks after which he was to be reviewed again. However he has not attended thishospital since then. The next report, continuing problems:- from Dr Cosgrove (ex.3), reveals On 10.8.88. he was hit on his head by a log; he was not -- 6 of 18 -- ( ( \ ( ( 4 knocked out but sustained a large deep scalp laceration which was treated at the Mackay Base Hospital. Xrays there at a later date showed a left parietal skull fracture. Cervical spine xrays showed no abnormality; CT scan was also normal. Following the accident Graham complained of recurring headaches (initially these were occipital but afte+ some weeks elapsed, became frontal); hearing difficulty, irritability and poor concentration span and a stiff neck. Audiogram on 22.9.88. showed normal hearing on the right and mild mixed deafness on the left. CT scans of the (L) petrous temporal bone was normal and the hearing loss appears to be resolving. The stiff neck settled somewhat with physio and analgesics but the headaches, forgetfulness, concentration problems and irritability persisted precipitating referral to a neurosurgeon in early November. I felt that the above problems would cause a continued incapacity for work, and my prognosis was guarded at that stage. Graham has not consulted me since early November so I am unable to comment on current progress. A report from Dr LeRay (ex.4) continues the story:- By now you will be in receipt of a report from my Partner Dr. Cosgrove. Since 24.10. 88 I have seen Graham on 6 occasions. In late October, his symptoms of poor concentration, emotional lability, short term memory loss and headache had become static. He was referred to Mr. Rossato (Neurosurgeon, Townsville). His report, in part, was "There are only one or two possible diagnoses. The least likely of these is that he does have a post-trauma hydrocephalus and to this end a repeat C.T. study should be carried out. The probabilityof its normalcy is high. The most likely diagnosis is a true post concussional syndrome with its attendant emotional and functional disabilities which are probably exacerbated by his pre-morbid personality". Mr. Rossato further suggested counselling by the Psychologist at Mackay Base Hospital. Apparently, due to a heavy case load, the Psychologist was unwilling to see Graham until well into the New Year. In the mean time, a C.T. Scan was arranged which showed no evidence ofhydrocephalus. Mr Danastas remains considerably disabled by headache, emotional liability, poor short term memory and difficulty with concentration. He is unable to return to his former, or any, gainful employment at present. With post-concussional syndrome, it is my experience that fullfunctional return usually occurs but that the time course for this is unpredictable. I have been informed that theWorkers Compensation Board have arranged fo rhim to havea Neuro Psychokogist assessment in mid January. Serial testing 3-4 months apart is likely to be indicative of the time needed for recovery. -- 7 of 18 -- ( ( ( 5 Dr Rossato's letter is exhibit 6. following:- It includes the He is suffering the fragentation of his own ego image, made worse, of course, by the fact that there is no visible signs of disturbance. He clearly requires helpwith this, should his c. t. show no hydrocephalus and I have taken the liberty of sending a copy of this letter to the psychologist at Mackay Base Hospital forappropriate counselling. Thank you very much for letting me see your most interesting patient but I do not think neurosurgery has a role to play. On 11 January 1989, clinical neuropsychologist, conclusions (ex.13) were:- Mr Danastas was Mr Salzman. assessed by a His detailed Mr Danastas is a man of average to low average intellect. His performance on visual spatial intelligence subtests was marginally impaired by his slow visual scanning, and had it not been for this problem his Full Scale I. Q. would have been in the average range. The results of Mr. Danastas' neuropsychological assessment identified the following problems: A severe deficit in the recall of word lists, intrusions, mildlyimpaired visual scanning and single sequence tracking, and a moderate level of prosopagnosia. These deficits are consistent with that of people who have a mild degree of brain damage. Another significant diagnostic indicator of brain damage is Mr. Danastas' increased sensitivity to alcohol. While some of Mr. Danastas' complaints such as dizziness, headaches, irritability, and memory problems are consistent with a post concussional syndrome, some factors are inconsistent with this diagnosis. Included in these are prosopagnosia, intrusions during verbal memory tests, and slowed visual scanning. However, it is also important to point out that the extent of Mr. Danastas' complaints and psychological problems is not consistent with his neuropsychological deficits. I am of the opinion that Mr. Danastas has mild brain damage with a functional overlay. Because of his cognitive slowing and visual scanning problems, Mr. Danastas would be a safety risk while operating heavy plant equipment, working at heights, or in situations where quick reaction time was an important factor in the performance of . work tasks. His visualscanning problem should be assessed in order to furtherevalute his visual problems Leo Hartley, a Mackay optometrist is familiar with cases of this nature. He should be able to function adequately in other labouring jobs, and as a barman, or in a bottledepartment. I believe it is fairly important that he returns to some form of work as soon as possible in order -- 8 of 18 -- ( ( \ 6 to maintain his self-esteem. There is a possiblity that Mr. Danastas may benefit from medication to help control his psychological problems. He should therefore be assessed by a psychiatrist. Counselling may also be of some benefit in helping him to understand that his deficits are not as great as they may seem. He will also need counselling to help him overcome his pervieced loss of status and reduction in self- concept arising out of his extended period of unemployment. Mr. Danastas' sexual difficulties may be due to either physical impairment or stress. His problems should be reviewed by the appropriate medical specialist. His own doctor would probably be the best one to advise him as to whom he should consult. The generally accepted notion is that maximum recovery from a head injury occurs within the first two years after the injury. Since it has been only four months since his accident there is the possibility that hiscognitive functioning will improve over the next twentymonths. He should therefore be assessed again in August of 1990. Mr Danastas was referred by Dr LeRay to Dr Gerald Milner, a very experienced psychiatrist, who saw him on 31 May 1989. His report (ex.29) begins:- Thank you for referring Mr. Danastas whom I saw together with his wife Rhonda on the 31.5.89 from 10.50a.m. to a little after noon. Subsequent to the interview I received information from the Workers' Compensation Board office in Mackay which inaddition to a detailed report contained a release for me to communicate with them signed by Mr. Danastas and alsocopies of the reports from Mr. Rossato dated the 2nd November,1988, copy of report from Mr.K.Salzman dated 2nd February, 1989. And of course I have your own letter ofthe 29th May,1989. Subsequent to interviewing Mr. Danastas, I read these reports with interest and was somewhat surprised to see that nowhere a phrase such as "compensation - oriented presentation" appeared in any of the reports. Indeed thevery word compensation was mentioned only in the letter head of the W.C.B. However, not entirely to my surprise, a day or two after seeing Mr. Danastas I received a telephone communication and later a letter from Solicitors advising that theywere acting for Mr. Danastas with regard to a claim for damages - i.e. compensation. When Mr. Danastas arrived he was smelling of beer. His manner was forceful and his wife often extended and reiterated his statements. Dr Milner diagnosed a mild post-concussional syndrome -- 9 of 18 -- ( ( ( 7 exaggerated by a marked compensation oriented presentation. Mr Salzman was asked to make a further assessment of Mr Danastas on 21 August 1990. On that day he was under the influence of liquor and was asked to attend again when he had limited his alchol consumption to a reasonable level for a two week period. He was assessed again on 18 December 1990, and Mr Salzman expressed the following conclusions (ex.14):- The results of Mr Danastas' current assessment indicate that there has been improvement in some areas of cognitive functioning, however, the results also indicatethe following deficits: First, on verbal memory tests, there were indications of intrusions and impaired ability to recognise material when visual cues were provided. Second, I noted a mild degree of left hand impairment when he was asked to respond to auditory signals with hand movements. Third, there were indications of cognitive slowing when he was challenged with complex problems. Fourth, there were indications of impaired planning and organisation abilities. Fifth, his performance on certain tests suggests frontal lobe brain damage. His performance on the above tests is consistent with that of people who have impaired cognitive functioning due to brain damage and it appears that his deficits are mainly associated with damage to the frontal lobes of the brain. I also noted that when Mr Danastas was re-tested in December 1990, there was improvement on tasks that appeared to be affected by alcohol consumption when he was tested in August of that year. His current deficits can be considered chronic and I would expect little, if any, improvement in the future. From a practical point-of-view, his deficits will reduce his ability to inhibit his behaviour. This dysinhibition can lead to further social problems, and possibly inappropriate behaviour. His ability to make decisions based on sound judgement is also impaired. It is difficult to be more explicit with regard to a prognosis in this area of functioning. Mr Danastas' performance on the above tests suggests that he is capable of working in a variety of occupations, for example, storeman and packer, car park attendant, petrol station attendant, and a variety of processing and production line jobs. There is nothing to suggest that his cognitive ability will interfere with his long-term prospects for employment. However, his reduced abilityto inhibit his behaviour could lead to substance abuse of various kinds; the major one being alcohol, which in the long-term could interfere with his ability to hold a job. The Defendants' solicitors arranged for Mr Danastas to be -- 10 of 18 -- ( ( \ 8 assessed by Mr Ira Smith, psychologist, in October 1991. He gave the following summary of Mr Danastas' status (ex.15):- 1. 2. 3. 4. 5. 6. 7. 8. 9. Mr Danastas is of average intelligence and average in his memory processes. Organic cerebral disturbance was indicated to be present in those areas affecting attention span and old memory. He is experiencing moderate to severe depressivenesswith moderate concern for his bodily functions and physical well being. He is experiencing low confidence and poor self esteem. He is experiencing strong feelings of unreality and detachment from reality. He is experiencing strong episodes of catastrophic reaction associated with organic cerebraldisturbance. Mr Danastas did not state and did not state his capacities to be other than requirements. any bodily disabilities upper limb operational adequate for normal work He did not indicate himself to be restricted in his mobility agility and static positioning. Mr Danastas' cognitive and emotional status are that he would be prevented from fulfulling productivity and reliability requirements commercial employment. such the of Mr Danastas was examined by an orthopaedic surgeon, Dr Johnson Nurse, on 18 December 1990. Subsequently X-rays of the cervical spine were sent to him. He found signs of soft tissue neck injury but expressed the opinion that the orthopaedic problem is not appreciable. He recommended Mr Danastas be seen by a neurosurgeon. On 10 October 1991, Dr John Baker, neurosurgeon examined Mr Danastas. He found no neurological disturbance, as a result of the injury, either as to head or to cervical spine. He opined that the discomfort experienced had been due to soft tissue injury. That opinion brings to mind Dr Rossato' s words three years earlier, "no visible signs of disturbance". So, is Dr Milner right, a mild injury with a compensation neurosis? On 21 January 1992, Mr Danastas was seen by Dr Martin Nothling, psychiatrist. Further tests were done, and in a supplentary report (ex.11) he said:- -- 11 of 18 -- ( ( (_ / 9 In my opinon, he sufferd from a post-concussional syndrome, following the blow to the head on 12th August,1988. In my opinion, it is unlikely that he has any current ongoing organic brain damage as a result of the blow to the head, sustained in the accident on 1Oth August, 1988. His abuse of substances, including alcohol, caffeine, marijuana, and amphetamines, would be contributing to a clinical picture consistent with organic brain damage. This man suffered a period of instability in his life following the accident, during which time he suffered from post-concussional syndrome, with headaches and concentration difficulties. He was at this time experiencing marital difficulties prior to the break up of the marriage, on 4th November, 1989. This period of instability in his life may have contributed him to thebehaviour which followed the abusing of certain substances, as mentioned above. Also, in my opinion, he developed an adjustment disorder with depressed mood, following the trauma of the accident, the post-concussional syndrome, and the changes in his lifestyle, associated with the post-concussional syndrome. He is still moderately depressed. My opinion still stands as to the type of work in which he could engage. However, he is, in my opinion, still atrisk of further abuse of substances, such as alcohol and the other drugs mentioned. This may contribute to further difficulties for him in holding employment in the future. I still recommend that he be treated by a psychiatrist, first to assist him to withdraw from the offending substances, to re-evalute his underlying mental state to treat his depression, and also provide ongoing supportive treatment. Both Dr Milner and Dr Nothling gave evidence as did Mr Salzman and Mr Ira Smith. Before dealing with that evidence two other pieces of evidence should be referred to. Mr Danastas was cross examined about things he told Dr Milner, and the following occurred (p.16):- "If I like my job I enjoyed working, but if I got the shits with the job, or if the boss gives me a hard time, I just tell him to get stuffed. I've been in business twice. The first time I was young and stupid and had a bad run and the second time I was just barely making a living." Do you agree you said that?-- Most likely,yes. Would you agree that it does reflect your attitude to employment through your life?-- I've had some really good jobs and I've had some bad bosses too. I do know ofone guy that I worked for, I was doing long hours, thepay was lousy so I turned around and told him to shove it, you know. If you are doing long hours and virtuallyworking for nothing you don't stay with it. -- 12 of 18 -- 10 It seems to me that Mr Danastas' longer answer says virtually the same as the information recorded by Dr. Milner, but the tone is very different. Whether the tone detected by Dr. Milner was induced by liquor, or by the way the interview was conducted cannot be determined. I am not satisfied that the answer recorded by Dr Milner shows that, prior to the accident, Mr Danastas had a bad attitude to work. During the two years prior to the accident he earned over $40,000 nett at a number of jobs involving plant operation and truck driving. While he worked for eight different employers, this may indicate no more than the short term nature of jobs available in the industry. Further, $26, 600 of the amount of $40, 000 was earned from one employer, and there are two other employers for whom he worked on more than one occasion. Another employer during that period gave him employment after his injury. I am satisfied that prior to the accident Mr Danastas was a capable and willing employee. The second matter that must be referred to is Mr Danastas' involvment in GROW. A report from an Acting Program Co-ordinator was tendered (ex.16) and it assumed significance and should be quoted:- The above named has had a total involvement with GROW for fifteen (15) months to date. GROW is a widely respected Community Mental Health Movement and is recognised by health and other professionals as making a significant contribution to individuals recovering from emotional, mental, and physical trauma. As people come into GROW for help they learn to use the GROW Program, based on Twelve Steps of Personal Growth, to make full use of their personal resources in overcoming inadequacies and growing to personal maturity. They use a GROW Group Method as the most effective means of getting for themselves and passing onto others the leadership and friendly help of fellow sufferers who have found the way to health and maturity. As well they learn to co-operate in and through the GROW Movement with competent agencies and persons for the community goals of mental health, social harmony and spiritual integrity. GROW helps in prevention, rehabilitation, and is a school of life and leadership for mental health.In our collective observations of Graham since his active -- 13 of 18 -- ( ' ( \ / 11 involvement in GROW the following has been noted: (1) Graham has been a most willing and co-operative volunteer. (2) He has at times suffered from mood swings which have seen him depressed and at other times on a "high". ( 3) If he is stresses out, he will experience intense headaches and will have to use strong analgesics for some relief. (4) At times he will become intense about various matters and finds it difficult to leave the matter at rest. He nees to be challenged to give it a break and decentralise from the situation. Graham has obviously suffered personally and physicallybut he is making an honest attempt to improve his situation. To that end in GROW he has taken on the roleof a Group Organiser so in effect he is challenging himself as well as leaving himself open to being challenged by the Program and other Growers with whon he is in contact. Dr Nothling found this report very significant. At p.41, he was asked:- MR McMEEKIN: Doctor, have you changed your views as tothe presence or otherwise of organic brain damage?--Yes, I have reconsidered that. In the light of reading the GROW report and then reassessing my originalinvestigations, and particularly the sensorium testing that I had carried out, yes I would feel at this point that there is evidence of organic brain damage. Firstly what is it in the GROW report that you found of significance?-- Well he suffered from mood swings which have seen him depressed, and at other times on what was described as a high. This would be describing emotional !ability which is often seen, or certainly is a feature of organic brain disease. Also the next point made by the GROW people is that if he is stressed out he will experience intense headaches as often seen in patients who are suffering organic brain damage. The fourth point made by them at times he will become intense about various matters and finds it difficult to leave the matter at rest. Here thay are describing what we term as "organic rigidity" which is seen in patients with organic brain damage where they find it very difficult to altertheir thinking. They become more or less stuck on one particular point or line of thinking. And I think that'sfairly compelling evidence because they have assessed him over a 15 months period and probably know him as well asanyone has known him since the accident. That fits inwith the earlier features of organic brain syndrome; when I say "earlier" I described in my report under sensorium. If you want me to detail those I can for you. (I have corrected the transcript in that passage so that "ability" is read "!ability" and "censorial" "sensorium"). -- 14 of 18 -- ( ( / \ 12 Consequently Or Nothling is not optimistic about Mr Danastas' chances of returning to work. Dr Milner was asked (p.83):- Firstly, can you tell me your opinion as to whether or not Mr Danastas has organic brain damage?-- I believenot in substantial terms. Any signs of this from time to time are, in my opinion, much more likely to be relatedto past and current alcohol use. One of the psychologists and Or Nothling reported that the man was under the influence when he visited them on one, if not more, occasions and, of course, a fact which is often overlooked is the fact that hangover effects, even with a zero blood alcohol, influence driving safety and other psychological associated functions and so may have influenced the results of their assessment and generally speaking the psychologists and certainly Or Nothling' s original assessments were only mild effects and with Mr Salzman's investigations, for example, most of them read "Above average", "Average" and only on, I think, on in 18 of the techniques he applied was there a major deficit recorded, which statistically could happen one in 18 just by chance. What reliance do psychiatrists place upon these various tests as Mr Salzman and Mr Ira Smith described?-- I'd like to stress, Your Honour, that these are not tests. That's improper use of language. A test is an absolute measure to identify, quantify anything. Rather, they aretechniques. The practical aspects of the application of an art are subject to interpretation and, indeed, Dr Nothling said that the overall clinical assessment wasmuch more valuable and the major text books of psychiatry and reasearch reports indicate that one of thesetechniques may be of assistance in eliciting particular areas needing further inquiry or where one might focus efforts to assist a patient. They are not of substantial importance in themselves. An aid, rather than a necessity. Well, in your opinion, do they point to the man having organic brain damage?-- There are some signs of mild damage there with some of those techniques of assessment, but these are readily accounted for by the effects of past alcohol use and current alcohol use or hangover effects, also other drug use. Also, of course, stress.Stress would account for the great majority of the few deteriorated results obtained in these techniques. Dr Nothling said that patients with organic brain syndrome do have a decreased tolerance for alcohol. Towards the end of his cross examination Dr. Milner (p.104):- He has many problems including intermittent problems with -- 15 of 18 -- ( ( ( \ 13 his level of consciousness brain functioning. When he's intoxicated, when he's under heavy stress and he could readily overcome all those. The doctors agree and certainly the psychologists agree that there is minimal sign of brain damage and Dr Nothling's first opinion was "mild", Dr Rossato says "functional overlay", the surgeons say "nothing", you know, "organic to explain his present state - refer to a psychiatrist". I' m saying that the solution lies within himself and that you do not need the history of the accident to explain his present condition. We see this sort of condition in many heavy drinking, violently disposed men, particularly. They get into - what are the statistics? 40 percent of Australian marriages end in the first 12 years, another 5 percent within the next 12 years; over 90 per cent of marriages in which there is violence end in divorce. I'm treating problems of domestic violence all the time and, you know, most of those people have not suffered head injury. I came to the conclusion that Dr Milner approached the diagnosis of the Plaintiff's condition with a particular conclusion in mind and that he would not let anything alter that conclusion. I prefer the approach of Dr Nothling who demonstrated a willingness to listen to the evidence, and to reconsider his opinions in the light of the evidence. I am satisfied that in the accident Mr Danastas suffered mild organic brain damage and a post concussional syndrome. His response to this has partly been in substance abuse, which has made his condition worse. However, as the brain damage would have decreased his tolerance to alcohol, this substance abuse is one of the foreseeable consequences of the injury tortiously inflicted. I accept Dr Nothling' s opinion that counselling will improve Mr Danastas quality of life. I am satisfied he has a residual economic capacity, and am prepared to be little more optimistic than Dr Nothling. After the accident, Mr Danastas returned to work driving a crane on 13 September 1988. He suffered from headaches, and from a sense of slowed reaction times. He stopped work on 18 September 1988. He became depressed and frustrated. He drank too much, he assaulted his wife who called the police. Domestic violence orders were obtained. The marriage broke up. Until he became associated with GROW there was little sign of improvement in his condition. Apart from the week's work in September 1988, he has worked on two occasions in -- 16 of 18 -- 14 normal occupations, and on one occasion in an occupation of a dubious nature. His nett earnings have been $1,373. The dubious work was called debt collecting, but it seems to have involved violence. This is not in keeping with his pre- accident behaviour and it does not seem to me that it needs any further comment. The last quoted remarks of Dr Milner, on the evidence, relate only to Mr Dasastas' post accident condition. I am satisfied that since the accident Mr Danastas has not been fit to earn income on a consistent basis. But for his injury he would have been in regular employment. His loss ( has been calculated in the schedules to exhibit 23 (see also exhibit 25) . I shall allow $90, 000, which takes account of possible periods out of work. His nett weekly Workers' c Compensation payments were approximately $23, 000 and he has received about $15,500 in the form of an invalid pension. I shall allow $12,350 by way of interest. For the future, I shall assume a working life to 55 years, because it is common to find serious back complaints developing in people who work with heavy plant. That means a future working span of 23 years. I am satisfied that following counselling there will be an improvement in Mr (_ Danastas' attitude and thus a resonable prospect that he will gain work. However, his income will certainly be less than he would have earned and his ability to hold a job will be seriously reduced. I estimate his weekly loss at $200, and assess his future loss of economic capacity at $140,000. Special damages amount to $12,738 and interest is not sought on these. I am not satisfied that the injuries suffered in this case required the kind of additional care at home which attracts an award for services gratui tiously rendered. Rather, they produced the kind of disruption of enjoyment of life which is reflected in that part of the assessment. I shall allow $8,500 for psychiatric treatment and medication. In assessing the award for pain, suffering and loss of -- 17 of 18 -- l 15 amenities, I accept the reliability of the matters referred to by Mr Salzman. It seems to me to be clear that the injury has had a disastrious effect upon Mr Danastas' life. Things should improve with treatment, but the destruction of his marriage was a direct result of the injury. As Dr Nothling observed, in effect, divorce does not really sort out the situation that developed as a result of the injury (T.39). For this head of damage I shall allow $52,000, $25,000 of which shall bear interest at 4% per annum. Taking account of the Workers' Compensation lump sum I shall allow interest in the amountcof $1,750. In summary, the award is Past economic loss including interest Future economic loss Special damages Medical $102,350 $140,000 $ 12,738 $ 8,500 Pain suffering and loss of amenities including interest $ 53,750 $317,338 There will be judgment for the Plaintiff against the Defendants for $317,338 together with costs to be taxed. -- 18 of 18 --