Damirdjian, C v Nominal Defendant and Zaya

[2021] NSWDC 706

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Damirdjian, C v Nominal Defendant & Zaya [2021] NSWDC 706

Hearing dates:

28, 29, 30 August; 8, 29 September; 27 October 2017; 2 February; 20 April; 25 May; 20 July; 30 August; 6 December 2018; 15, 16 July; 25 October; 5 December 2019; 8 May; 3, 17 July; 14 September; 2, 9 October; 2020; 15 – 17, 19, 22, 31 March 2021

Date of orders:

21 December 2021

Decision date:

21 December 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the first defendant against the plaintiff;

2. Verdict and judgment for the plaintiff against the second defendant in the amount of $467,621.20;

3. The plaintiff’s application for interest on damages is refused at this stage;

4. I will hear the parties on the appropriate order for costs;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – Negligence – motor vehicle accident – plaintiff’s father injured due to negligence of the driver of a motor vehicle owned by the second defendant – plaintiff suffered psychological injury – damages for mental harm – Pt 3 of Civil Liability Act 2002; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5D, s 5E, s 13, Pt 3 s 27 – s 33,

Motor Accidents Compensation Act 1999 (NSW), s 34, s 126, s 131

Uniform Civil Procedure Rules 2005 (NSW), Sch 7, cl 5(c)

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Glen v Sullivan [2015] NSWCA 191

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Harman v Secretary of State for the Home Department [1983] 1 AC 208 at 308

Jaensch v Coffey [1984] HCA 52; (1084) 155 CLR 549

Larson v Commissioner of Police [2004] NSWCA 126

Majkic v Bonnano [2008] NSWCA 253

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Optus Administration Pty Ltd v Wright [2017] NSWCA 21

Paff v Speed (1961) 105 CLR 549

Penrith City Council v Parks [2004] NSWCA 201

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Texts Cited:

Furzer Crestani, Assessment Handbook, 2021

Category:

Principal judgment

Parties:

Christina Araks Damirdjian (Plaintiff)
The Nominal Defendant (First defendant)
Sam Zaya (Second defendant from 14 September 2020)

Representation:

Counsel:
Mr P Menzies QC with Ms B Nolan – 28 August 2017 to 16 July 2019; Mr A Parker – from 5 December 2019 (Plaintiff)
Mr J Turnbull SC (First defendant)
Mr W Fitzsimmons SC with Mr B Jones (Second defendant from 15 March 2021)
Solicitors:
Gajic Lawyers (Plaintiff)
Moray & Agnew (First defendant)
Sparke Helmore (Second defendant from 14 September 2020)

File Number(s):

2014/269323

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1]
Factual background, related proceedings	[2] – [4]
Issues	[5] – [11]
Legislation	[12]
Evidence overview	[13]
Factual matters	[14] – [74]
Plaintiff’s evidence	[15] – [43]
• Background circumstances	[16] – [18]
• Plaintiff’s prior health issues	[19]
• Effect of father’s injuries on plaintiff	[20] – [26]
• Plaintiff’s subsequent health issues	[27] – [32]
• Plaintiff’s educational and work history	[33] – [43]
Plaintiff’s High School reports	[44] – [74]
• Year 8 – half yearly reports	[47] – [58]
• Year 8 – yearly reports	[59] – [72]
• Post-accident reports	[73] – [74]
Medical and allied evidence	[75]
Causation of harm and reliability of expert opinions	[76] – [102]
Consideration of reliability of medical and allied opinions	[77] – [92]
• Dr Virgona and Dr Lee	[80] – [83]
• Dr Baron-Levi and Mr Anning	[84] – [92]
Consideration of causation of harm	[93] – [102]
Plaintiff’s most likely circumstances but for father’s accident	[103] – [105]
Assessment of damages	[106] – [135]
Past economic loss	[107] – [112]
Future economic loss	[113] – [128]
Future out-of-pocket expenses	[129] – [131]
Past out-of-pocket expenses	[132] – [134]
Summary of damages assessment	[135]
Disposition	[136]
Orders	[137]

Nature of case

1. The plaintiff, Ms Christina Damirdjian, now aged 24 years, brings these personal injury damages proceedings against two alternative defendants: the first defendant, the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 (NSW) (the “Mac Act”), and the second defendant, Mr Sam Zaya, the owner of a motor vehicle found to have been involved in an accident in which her father was injured causing her to suffer psychological injury when she was aged 14 years. The proceedings are governed by the MAC Act, and the Civil Liability Act 2002 (NSW) (the “CL Act”).

Factual background, related proceedings

2. Pursuant to Part 3 of the CL Act, the plaintiff claims damages for mental harm she incurred due to the negligence of the driver of a motor vehicle involved in a street accident which occurred on 5 October 2011, in which her father, Mr Armin Damirdjian was injured.

3. The parties have agreed that the determination of the liability issues in the related proceedings in this Court numbered 2017/4566 brought by the plaintiff’s father, Armin Damirdjian against the same two defendants will also determine the liability outcome of these proceedings. For convenience, the evidence in Armin Damirdjian’s proceedings is taken to have been read and considered in both sets of proceedings.

4. In a separate decision published today, those related proceedings have been determined in favour of Armin Damirdjian. He has been awarded $375,000 damages against the second defendant for the personal injuries he sustained in the subject accident: ArminDamirdjian v Nominal Defendant & Zaya [2021] NSWDC 703.

Issues

5. Accordingly, and broadly stated, the only remaining issues to be determined in these proceedings are first, whether the plaintiff has in fact relevantly suffered mental harm caused by negligence, as claimed by her, and if so, then secondly, the extent of her entitlement to damages consequent upon such harm.

6. The consideration and the identification of the mental harm suffered by the plaintiff, at age 14 years, must be undertaken in conjunction with a consideration of her pre-accident psychological history.

7. The plaintiff must rationally establish the difference between her pre-accident psychological status and any ongoing adverse psychological effects of the sudden shock she received on becoming aware of the injuries sustained by her father in the accident that occurred on 5 October 2011.

8. The plaintiff bears the onus of proof on those matters: s 5D, s 5E of the CL Act; Watts v Rake (1960) 108 CLR 158; [1960] HCA 58, at [8]; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34, at [4]; Glen v Sullivan [2015] NSWCA 191, at [43] – [51].

9. In this case, the approach taken by the plaintiff to discharge that onus was to rely on documentary evidence in the form of various records and medical reports. The defence also relied upon documentary evidence alone. Within that body of evidence there are conflicting expert opinions that need to be analysed and resolved in terms of which opinions should be preferred on matters of contention.

10. In this case, the task of grappling with conflicting medical and allied expert opinion evidence in order to reach reasoned conclusions on matters of fact in issue to arrive at the necessary findings has not been assisted by the absence of explanatory oral evidence from the authors of the numerous reports that have been tendered: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, at [28]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [66].

11. Such difficulties that arise in evaluating medical evidence in personal injury litigation are well-recognised. As a matter of principle, difficulties of that ilk are to be resolved by determining whether the party bearing the onus of proof on a particular issue has adequately discharged that onus: Majkic v Bonnano [2008] NSWCA 253, at [26], Larson v Commissioner of Police [2004] NSWCA 126, at [48].

Legislation

12. The plaintiff’s claim is subject to the provisions of the CL Act involving the causation and onus of proof provisions of s 5D and s 5E of that Act, and the provisions of s 27 to s 33 within Pt 3 of that Act as they relate to the recovery of damages for pure mental harm and consequential mental harm as defined in those provisions.

Evidence overview

13. The array of the plaintiff’s documentary exhibits, including medical reports and related material, was in the series “A” to “G”. The defence exhibits, including medical material and reports, were in the series “1” to “4”. The factual mainstay of the plaintiff’s evidence was in her affidavit sworn on 6 May 2020: Exhibit “A”. That affidavit was augmented by her initial oral evidence given on 15 March 2021 (T292 – T306) and her later oral evidence given on 17 March 2021: T 403 – T431.

Factual matters

14. The plaintiff was the only witness to give oral evidence in her case. The defence called no oral evidence. I find her to be a satisfactory and truthful witness. I have accepted her evidence in its entirety. That evidence is summarised below.

Plaintiff’s evidence

15. At this point it is convenient to review the plaintiff’s evidence in terms of her background circumstances, her pre-accident health, the effect her father’s injuries had upon her, the relevant events that occurred in her life subsequently, and her work history.

Plaintiff’s background circumstances

16. The plaintiff was born in Australia in 1997. When she was aged about 6 years she was involved in a motor vehicle accident which appears not to have had any lasting deleterious effects on her. She does not recall the details. Some damages reports relied upon by the defendant indicate the defence had access to at least some of those details, but they were not explored in these proceedings. At the time of her father’s accident on 5 October 2011, she was aged 14 years. She was then at a new school, in Year 8, at High School.

17. Beforehand, in 2006, the plaintiff’s parents had divorced. She said she was sad about this but she had accepted the situation. There was evidence of limited reliability on the plaintiff’s pre-2011 psychological state. In 2010, she felt abused and over-disciplined by her mother. She therefore ran away from her mother’s home to live with her father.

18. In cross-examination, the plaintiff acknowledged that in the period when she was being physically and verbally abused by her mother she experienced considerable distress: T405.2. This was the reason why she went to live with her father: T405.37. This was understandable given the nature of the verbal abuse that her mother had meted out to her: T406.12. For a time, there was an AVO in place against her mother. This had been taken out by the police as the plaintiff was a minor at the time. The basis for that AVO has since resolved over the course of time and the family relationships are now more civil. Before the subject accident, she occasionally visited her mother.

Plaintiff’s prior health issues

19. The plaintiff described her previous health as good. She said she was fit and active. She was training for and participating in competition wrestling to an Olympic standard. She was part of a team engaged in competitions and she had obtained awards and recognition in that sport. In her own assessment, she did not have any psychological problems before her father’s accident. The psychiatric experts ultimately agreed that was so. Her own view in that regard must be compared with her school records, which showed that in 2011, on entering Year 8 in a new High School, she initially had some assistance from the school counsellor. My reading of that material suggests that the school took that measure as a prudent and precautionary measure, rather than as a response to any presenting crisis.

Effect of Armin Damirdjian’s injuries on plaintiff

20. The circumstances in which the plaintiff’s father came to be injured have been set out in some detail in my decision in his case: Armin Damirdjian v Nominal Defendant & Zaya [2021] NSWDC 703. These reasons assume a familiarity with the evidence and the findings in that decision.

21. The circumstances in which the plaintiff became aware that her father had been injured in an accident were as follows. On the afternoon in question she had been at her mother’s home, and whilst there, she had spoken to her father by telephone. She said her father had been upset with her that she was not already at home at that time. After about two hours, her mother drove her home. At that time both were unaware that in the meantime her father had been in an accident.

22. Later, that afternoon, whilst the plaintiff was at home alone, a neighbour who had heard about the accident from her father’s friend Mr Ida, came to see her to enquire as to her father’s wellbeing. Before that enquiry she had remained unaware of the fact that he had been involved in an accident.

23. I accept that the plaintiff’s immediate reaction on learning of her father’s accident was one of feeling shocked. She sought out Mr Ida, the source of the neighbour’s information, and questioned him as to what he knew of the circumstances. He told her that her father had been involved in a “serious accident”. Significantly, Mr Ida was not cross-examined about that conversation when he gave his evidence. It may therefore be assumed that the plaintiff’s account of the conversation, which was credible and not otherwise improbable, should be accepted.

24. The plaintiff went on to describe her consequential reaction of having grave fears and anxiety, because she thought her father had died. Shortly after learning of the accident, a friend drove her to Westmead Hospital, where she saw her father with cables attached in the hospital intensive care unit. She saw him in a neck brace, with observable lacerations to his face and arms. At that time, he was observed to be drifting in and out of consciousness. She was scared of approaching him. She felt guilt in that she was in some way to blame for the accident because she had not been at home when she should have been.

25. After her father’s discharge from hospital her mother took him home. Thereafter the plaintiff provided him with all aspects of personal care in the ensuing months, as if he was a child. This was plainly burdensome and upsetting for her, and that upset continued over the course of time. She felt obliged to look after him in his circumstances of helplessness. She also needed to accompany him to his medical appointments. Consequentially, she lost essential time from her schooling. These were obviously difficult circumstances for a 14 year-old school girl to cope with and to manage,

26. Consequently, the plaintiff’s schoolwork suffered. She had anxiety and depression, and she had difficulty concentrating. She was withdrawn, and she needed considerable assistance from the school counsellor, to whom she disclosed those matters. She also obtained help from the local youth mental health service to which she had been referred.

Plaintiff’s subsequent health issues

27. Apart from the immediate effects of the shock of learning of her father’s accident some time later, in May 2013 the plaintiff first became aware she had adverse health issues whilst she was participating in a wrestling match. At that time, she was in the Australian junior wrestling team for the Youth Olympics. In those events, she experienced a breathing problem. She found herself wheezing and her throat felt sore. She sought medical advice from a medical clinic and she was prescribed a puffer.

28. Shortly afterwards, whilst competing in Melbourne in an inter-state wrestling match, she found that she was worrying about her father. She then took two puffs of Ventolin from her puffer instead of just one dose. She then experienced breathing difficulty and needed the emergency assistance of paramedics.

29. On her return to Sydney, she consulted the medical practitioner whom she had previously seen and who had given her the puffer. She was then diagnosed as having asthma. In the ensuing months she experienced similar asthmatic incidents. In the course of medical investigations for that problem an incidental diagnosis of polycystic ovary syndrome was made: Exhibit “C”, Vol 1, p 126. That diagnosis does not seem to have any bearing on this case.

30. In the following year the plaintiff continued to experience similar asthmatic type attacks. At that time she began to notice that she had psychological problems consisting of frustration, agitation, and mood swings. She also found she was having trouble concentrating in her classes at School. She found that she wanted to be with her father and she did not want to leave the house or go to school. Her school attendances dropped, and over the course of time, some of her grades declined. She became withdrawn, and she lost friendships. She also began to self-harm.

31. In 2014, the plaintiff saw a school counsellor to speak about those problems. She was referred to the Carramar Child and Adolescent Mental Health Unit, the local youth mental health service. She remained under the care of that unit between 2014 and 2016. In January 2017, she contacted Headspace because she no longer qualified for assistance from the youth / adolescent unit. Between January 2017 and April 2017. She was prescribed antidepressants for her stress and anxiety.

32. In the plaintiff’s oral evidence, she stated that she lives with stress and anxiety on a daily basis, including at times, waking up feeling anxious: T302.48. She has been receiving medical attention for those problems. She described her anxiety as extreme, leading to frequent fainting episodes. These were investigated and determined to be syncopal, in response to stress.

Plaintiff’s educational and work history

33. Whilst still at school, in 2014, the plaintiff obtained a casual customer service job at McDonalds in order to provide a source of income for the family. She found it difficult to be amongst people and to deal with customers in that work. Her employer obligingly changed her role from customer service to packing orders. However, her anxiety continued. It appears to have affected her punctuality and she received numerous warnings for arriving late for her shifts. That work seems to have also had a negative impact on her schoolwork and on her attendances at school. Whilst at school, she also did some causal seasonal work at a local amusement park to obtain some income: T409.15.

34. In 2015, the plaintiff completed her HSC, of a fashion. She described her ATAR result as “a mystery mark” of 30. She attributed her poor performance to her stress, her anxiety, and her inability to maintain concentration on aspects of her schoolwork.

35. In February 2016, the plaintiff commenced a 3 year course in Diploma of Social Science (Policing). She struggled in that course and withdrew from it in mid-2016. At that time she had the ambition of becoming a police prosecutor. She found it difficult to be in the academic environment and was unable to interact with her fellow students. She found she was unable to complete her assessments due to anxiety, and her attendances dropped. She therefore discontinued those studies.

36. In June 2016 the plaintiff obtained employment as a casual bartender at the CBD hotel in Sydney. She continued to suffer from anxiety in that work, and generally. She found it difficult to interact with customers in that work. Consequently, her employer obligingly moved her to work in a different area, in private events management. However, the same problems persisted, and she left that employment.

33. In February 2017, the plaintiff commenced full-time work with the Commonwealth Bank at a call centre where she was required to respond to random customer enquiries. Due to her anxiety, she struggled to deal with customer enquiries and became easily flustered and anxious when talking to people on the telephone. She took frequent breaks. Consequently, she could not meet her daily call quota.

34. In February 2018, she changed from full-time work with the bank to part-time hours of 24 hours per week due to her anxiety and concentration issues. She feels she had so much anxiety that she preferred to stay in her “own bubble”. She was referred to her employer’s Employee Assistance Program for counselling, and she has twice been placed on a workplace management plan as she is not meeting her required key performance indicators. She is worried that she might lose her employment. Plainly, this represents a realistic concern for her continued employment.

35. In February 2018, the plaintiff enrolled in a course to pursue the degree of Bachelor of Criminal Justice and Law at the University of Western Sydney. In April of that year she withdrew from that course because of the anxiety she experienced in a social environment, which rendered her unable to focus and concentrate on her academic work.

36. The plaintiff does not feel able to go anywhere by herself. She feels she needs to be accompanied. She has seen psychiatrists and psychologists in the public system for treatment and has been taking prescribed medication for her psychological problems. In addition she has been seeing her general practitioner for support. At present she is hesitant about further treatment: T414.15 – T414.21. There is no suggestion that she has unreasonably failed to mitigate her loss: T415.45.

37. In 2019, she travelled to Armenia with her mother for a three week holiday in the hope that trip might improve her situation. Whilst she was there, she stayed in the hotel room and did not go sightseeing: T421.31.

38. The plaintiff presently feels she has a lot to deal with. She said that she wakes up with anxiety and she lives with anxiety. She tries to cope with it and move forward. She demonstrated visible discomfort when questioned on that topic: T418.33.

39. The plaintiff feels her stress and her anxiety prevents her from working full-time. Her work hours have been reduced to 24 hours per week. Her stress affects her work performance. She worries about this as she cannot afford to lose her source of income: T423.35 – T424.15. She understands she may be dismissed from her employment if her work performance does not improve: T427.10. At present her work is subject to six monthly performance reviews: T428.46.

Plaintiff’s High School reports

44. In view of some negative comments made in reports prepared by Dr Jeffrey Baron-Levi, an educational psychologist retained by the defence, and for appropriate context, it becomes relevant to set out some details of the plaintiff’s High School attendances, assessments and difficulties that were identified in the evidence relating to the years 2011 to 2015, as follows.

45. Copies of the plaintiff’s High School reports have been included in Exhibit “C,” Vol 1, between pages 467 and 652. Also included are copies of various awards, articles and photographs relating to the plaintiff’s participation in competition wrestling, as well as relevant notes and correspondence.

46. The tendered materials do not include any of the plaintiff’s school reports that relate to the period before 2011. If those materials were considered to be relevant it was open to any party to obtain and tender them.

Year 8 – half-yearly school reports

47. The plaintiff’s half yearly Year 8 report was only positive in its commentary: Exhibit “C,” Vol 1, pp 521 – 532. The plaintiff’s results were mainly in the high range, if not outstanding. In that half-yearly report, the plaintiff’s Year Adviser and the Principal stated:

“Christina Araks has made a pleasing effort this semester. She has achieved an outstanding result in Music, where it is evident that she has a real talent and interest to achieve her best. Christina Araks has worked consistently in several subject areas and is to be commended for her effort. I encourage Christina Araks to take into consideration the advice of her teachers so that she can continue to progress in her learning. It is evident in the comments of her teachers that she has the potential and ability to succeed and I look forward to monitoring her progress. Congratulations on a pleasing effort Christina Araks.”

[Exhibit “C,” Vol 1, p 521]

48. The English teacher’s half yearly comment was as follows:

“Christina Araks is a keen and confident student who is making fine progress in English. Christina Araks works well to complete tasks on time and aims to produce a satisfactory standard of work. Her constant drafting of ideas and written work is a delight to see. Christina Araks is a motivated participant in all class discussions and is always eager to share her views. Christina Araks wrote a well structured crime narrative, incorporating interesting vocabulary to enhance her story. She identifies poetic forms and features and understands the key issues poets are addressing. Christina Araks displayed the correct structure and emotional vocabulary in her poetry writing. She does need to work on improving her spelling and grammar. With consistent effort, Christina Araks can continue to excel in English.”

[Exhibit “C,” Vol 1, p 522]

49. The History teacher’s half yearly comment was as follows:

“Christina Araks has demonstrated a substantial knowledge and understanding of History, which will improve further with the use of independent study. She uses sources with sophistication. This skill can be developed further by evaluating sources for their usefulness and reliability. Christina Araks’ research is good but could be improved by practising skills in summarising and using remnant information to answer research questions. Her written communication needs improvement. This can be done by ensuring that relevant information is used to answer the question.”

[Exhibit “C,” Vol 1, p 523]

50. The Spanish language teacher’s half yearly comment was as follows:

“Christina Araks is a conscientious and responsible student who always works well in class. She is able to ask and respond to a range of questions in Spanish about herself and her school subjects. Christina Araks participates well in class discussions and is able to work well both individually and in a group. She has developed excellent listening comprehension skills and is able to read a range of Spanish texts. In addition, she writes and speaks Spanish well using a range of vocabulary and structures. With sustained effort and regular revision Christina Araks should continue to make progress.”

[Exhibit “C,” Vol 1, p 524]

51. The Mathematics teacher’s half yearly comment was as follows:

“Christina Araks demonstrates good knowledge and skills in operating with Decimals and Fractions. She can describe and generalise number patterns using words and algebraic symbols in a variety of ways. She is developing her skills in calculations with Ratios and Rates. She needs thorough revision and practice in all topic areas to improve her result”.

[Exhibit “C,” Vol 1, p 525]

52. The Music teacher’s half yearly comment was as follows:

“Christina has studied the topic ‘Introduction to the Guitar’. She has learned to perform repertoire including ‘James Bond’ and ‘Wild Thing’ on guitar and keyboard. Christina is an enthusiastic student who performs well on the guitar. She has taken part in all class activities to an excellent standard and has achieved at the highest level in music, resulting in an outstanding report Christina should keep up this excellent work. Congratulations!”

[Exhibit “C,” Vol 1, p 526]

53. The NAPLAN assessment comment was as follows:

“Christina Araks is a confident and personable student who has the potential to achieve pleasing results if she remains focussed and avoids distractions. Christina Araks has shown sound understanding of the concepts covered this semester. She, however, still experiences difficulty in many areas of literacy. I encourage Christina Araks to read widely in order to strengthen her comprehension and improve her punctuation. Christina Araks would also benefit from better preparing herself for assessments and remaining focused for the entire lesson.”

[Exhibit “C,” Vol 1, p 527]

54. The PDHPE teacher’s half yearly comment was as follows:

“Christina Araks is a mature, respectful and cooperative student. She is very attentive and possesses excellent communication skills. Christina Araks displays an outstanding level of skill in Gymnastics and Athletics. She is a very confident swimmer and is to be commended for her efforts. Christina Araks involves herself actively in class discussions. Unfortunately, her bookwork requires improvement. Overall an excellent effort. Keep up the high standard.”

[Exhibit “C,” Vol 1, p 528]

55. The Science teacher’s half yearly comment was as follows:

“Christina Araks is a very conscientious student who puts excellent thought and neatness into her daily work. She is highly motivated and participates in class activities with creativity and a great deal of enthusiasm. Furthermore Christina Araks consistently completes homework with effort and diligence. Her willingness to lead, organise and inspire others is well noted. Her recent results indicate that she is very capable of drawing scientific diagrams and presenting information using a line graph, however, there is a need for improvement in understanding basic scientific knowledge and skills. Christina Araks could benefit from improving her work habits by ensuring that she regularly reviews her level of understanding of the work and seek assistance when required. Her self-direction in goal setting and goal achievement will ensure her advancement in this subject.”

[Exhibit “C,” Vol 1, p 529]

56. The Home Economics teacher’s half yearly comment was as follows:

“Christina Araks is a friendly and capable student who works cooperatively in class. She has displayed a keen interest towards the cooking unit but failed to do well in the theoretical component of this subject. Christina Araks needs to set up a strict study routine and pay attention to detail with all submitted work in order to achieve better outcomes in the future.”

[Exhibit “C,” Vol 1, p 530]

57. The Technology and Industrial Arts teacher’s half yearly comment was as follows:

“Christina Araks is a capable student who is not consistently applying herself to her work. There is significant room for improvement in effort and application to set tasks. A more mature attitude and better application to course work is essential if her performance is to improve.”

[Exhibit “C,” Vol 1, p 531]

58. The Visual Arts teacher’s half yearly comment was as follows:

“Christina Araks is a very creative and dedicated student who has worked diligently in most areas of the Visual Arts course this semester. Christina Araks has investigated the art making practice of Merran Esson as an inspiration for her work and has produced a series of creative designs for her ceramic vessel. She has now begun working confidently with clay and has successfully gained the fundamental ceramic skills and techniques required for modelling and joining. Christina Araks' research task and brochure design reflect her satisfactory understanding of artist practice and the relationships between artist - artwork-world - audience. Unfortunately she did not address all components of the assessment task and lost many valuable marks. Christina Araks’ Visual Arts Process Diary and her recent postcard design was excellent. Christina Araks is a mature and very proactive student who enjoys this course. She is a very polite and positive role model. This is a pleasing achievement and effort from Christina Araks.”

[Exhibit “C,” Vol 1, p 532]

Year 8 – yearly school reports

59. The plaintiff’s yearly Year 8 report was also positive in its commentary: Exhibit “C,” Vol 1, pp 533 – 544. The plaintiff’s results were mainly in the high range, if not outstanding. In that report, her Year Adviser and the Principal stated:

“Christina Araks has made a pleasing effort this semester. She has achieved outstanding results in Language and Music and is to be commended for her effort in these subject areas. Christina Araks has produced excellent results in Visual Arts, Maths and HSIE, highlighting her ability to produce work of a high standard. Christina Araks has worked satisfactorily in other subject areas and had made steady progress throughout the semester. I encourage her to take into consideration all constructive feedback given by her teachers so that she can achieve to her full potential. I congratulate her on her involvement in the Dance Ensemble and encourage her to continue her representation of the school in this area as she displays natural talent in dance. I look forward to monitoring her progress next year.”

[Exhibit “C,” Vol 1, p 533]

60. The English teacher’s yearly comment was as follows:

“Christina Araks is a friendly and energetic student who has continued to make sound progress in English. Christina Araks has developed a fair understanding of key concepts discussed in class. She is an enthusiastic participant in class discussions and activities. However, at times she can be quite talkative and often loses focus on the task at hand. Christina Araks is developing her ability to identify forms and features in texts and is beginning to discuss these ideas in structured sentences. She identifies film techniques and discusses their effect. Christina Araks does need to improve her essay writing skills and include textual evidence to further support her thesis.”

[Exhibit “C,” Vol 1, p 534]

61. The Geography teacher’s yearly comment was as follows:

“Christina is a motivated student who has shown commitment in completing all her classwork. She has articulated geographical concepts and terminology to a sound level in recent tests. Christina has achieved a sound result and with continued effort she may reach a higher level of achievement. Christina needs to keep trying.”

[Exhibit “C,” Vol 1, p 535]

62. The Spanish teacher’s yearly comment was as follows:

“Christina Araks has completed all activities and assessments that were part of this course with the highest degree of responsibility and commitment that allowed her to obtain outstanding results. Christina Araks is now able to understand main ideas and supporting details in texts, both listened and printed and respond to questions about them correctly and accurately. Likewise, Christina Araks is now able to express own ideas both in oral and written form that deal with the topics studied. Her application and interest for the subject were key elements in her achievement. Congratulations.”

[Exhibit “C,” Vol 1, p 536]

63. The Mathematics teacher’s yearly comment was as follows:

“Christina Araks has achieved a good overall result this semester which was determined from various classroom tests and activities. She demonstrates thorough knowledge and skills in displaying and interpreting statistical information. She has a sound level of competence in using Pythagoras’ theorem to calculate the perimeter and area of basic shapes. Christina Araks’ workbook and homework are usually up to date. She needs to constantly revise and study all work covered in the course if she wishes to improve.”

[Exhibit “C,” Vol 1, p 537]

64. The Music teacher’s yearly comment was as follows:

“Christina Araks has studied instrumental repertoire this semester leaning songs including ‘Walking on Sunshine’, ‘Miracle’ and ‘Rolling In The Deep’. She has taken part in all class activities to an excellent standard, displaying a strong aptitude for this subject. Christina Araks guitar skills are at the advanced level and she should also be commended for her participation in the School Spectacular this year. Christina Araks has achieved at the highest level in music and this has resulted in an outstanding report. She should keep up this excellent work. Congratulations!”

[Exhibit “C,” Vol 1, p 538]

65. The NAPLAN assessment comment was as follows:

“Christina Araks' improvements in NAPIAN are reflective of the positive attitude she has adopted this semester. She tries her best and has shown a new maturity towards her work. At times, however she struggles to maintain concentration and misses out on important (sic). Christina Araks is encouraged her (sic) to adopt an organised study pattern and to utilise the tutoring centres available at school.”

[Exhibit “C,” Vol 1, p 539]

66. The PDHPE teacher’s yearly comment was as follows:

“Christina Araks is a conscientious, mature and respectful student. She involves herself actively in all class discussions and always asks questions when she is unsure of the content being taught. Christina Araks is to be commended for her outstanding efforts throughout the Dance unit. She displayed creativity, motivation and teamwork. Christina Araks always tries her best in practical lessons, however, a greater emphasis on batting in T-ball is required. She is a positive role model to other students and has been a pleasure to teach.”

[Exhibit “C,” Vol 1, p 540]

67. The Science teacher’s yearly comment was as follows:

“Christina Araks is a mature student who is always courteous and polite. She is an enthusiastic, motivated and determined student who always gives 100% effort to all tasks. Her recent results indicate that she has developed a basic understanding of some scientific concepts and skills, yet she still struggles in some areas. Christina Araks would benefit from regularly and systematically reading through and reviewing her work, to ensure that her understanding is thorough, her work complete, and to reinforce the new concepts that she is developing. Overall, I am confident that she will make a substantial improvement based on the implementation of these initiatives. She has been a pleasure to teach this year and I wish her all the best for the future.”

[Exhibit “C,” Vol 1, p 541]

68. The Technology Home Economics teacher’s yearly comment was as follows:

“Christina Araks is an outgoing and capable student who is easily distracted. She has, however displayed positive commitment throughout the course and completed most assigned work to a satisfactory standard. Greater attention to detail is needed to improve her results in the future.”

[Exhibit “C,” Vol 1, p 542]

69. The Technology Industrial Arts teacher’s yearly comment was as follows:

“Christina Araks is an intelligent and talented student, However she is often too talkative and disruptive in class. This is reflected in a (sic) grades which could have been much better. She is inconsistent in approach to this subject. This result may be improved with a more settled and concentrated effort.”

[Exhibit “C,” Vol 1, p 543]

70. The Visual Arts teacher’s yearly comment was as follows:

“Christina Araks is a creative student who has continued to work consistently in all areas of the Visual Arts course this semester. Christina Araks has constructed and hand painted an interesting “Beachtopia” ceramic vessel. She has also successfully produced a digital graphically designed swing tag for the vessel. Christina Araks’s(sic) bookwork and her artist studies reflect her sound understanding of how different materials can be used to make two dimensional artworks. She has produced sensitive water colour and chalk pastel works. Christina Araks is a very social student who has been disruptive and easily distracted at times so she needs to focus on adopting a more self disciplined attitude for next year. Overall this is a pleasing achievement and effort from Christina Araks.”

[Exhibit “C,” Vol 1, p 544]

71. It is apparent from the above extracts that the only comments capable of being viewed negatively were those made by the Technology and Industrial Arts teacher as cited at paragraphs [57] and [69] above. Those comments seem to be outliers that may reflect the plaintiff’s relative interest in that subject. In my view, nothing of significance turns on those comments.

71. The plaintiff’s Year 10 full-year results were to 5 December 2011, and therefore included the period since 5 October 2011 when the plaintiff’s father had his accident.

Post-accident reports – 2012 and following

73. The content of the plaintiff’s Year 9 to Year 12 reports was very different in its tenor: Exhibit “C,” Vol 1, pp 545 – 595. In 2012 and thereafter, the year following her father’s accident, the comments of the plaintiff’s teachers assumed a different and more negative theme, as follows:

1. Absenteeism is identified as a problem in her progress to learning: pp 545; 573; 594;

2. The need for improvement in behaviour is identified: pp 545; 547;

3. Ease of distractibility is identified: pp 546; 551; 553; 558; 560; 562; 563; 567; 568; 569; 571; 576;

4. A need for consistency in her work is identified: pp 551; 552; 578;

5. A need for sustained effort and application is identified: p 555;

6. The need for focus was identified: pp 557; 558; 562; 563; 567; 569; 576; 583; 591

7. There were comments on the need for completion of homework regularly: p 582;

8. It was noted that some examinations had not been attempted: p 592;

9. It was noted that attendances in HS senior year in science, community and family studies music and the PHDPE subjects were unsatisfactory.

74. In year 10 the plaintiff was noted to have achieved a mixed range of results: Exhibit “C”, Vol 1, p 563. Absenteeism from school over the years 2012 to 2015 was recorded in her school reports. Those absentee days are summarised in the table now follows:

YEARS	FULL DAYS ABSENT	PARTIAL DAYS ABSENT
2012	9	33	8
2013	10	22	10
2014	11	5	5
2015	12	Not available	Not available

Medical and allied evidence

75. Before identifying my findings concerning the plaintiff’s accident-related disabilities it is appropriate that I set out in summary form a chronological review of relevant dates of professional contact and assessment both before and after the subject accident, as follows:

Pre-accident

1. In 2011, at the commencement of Year 8 in her new school, the plaintiff’s Year 8 adviser wrote a note to the school counsellor letting her know that the plaintiff, a new student at the School, had a history of violence in her family and she has an AVO on her mother. The Year advisor considered there was an urgent need for the school counsellor to meet with the plaintiff as soon as possible, noting that the plaintiff had agreed to that course in circumstances where there was an expressed concern for her emotional health: Exhibit “12”, p 7;

2. In early 2011, the school counsellor focused her discussions with the plaintiff on family issues and school stress: Exhibit “12”, p 1. Thereafter the records show there was no further involvement with the school counsellor for over 2 years, until well after her father’s accident. The subsequent involvement commenced in 2013, and then in 2014 and 2015;

3. On 29 April 2011, some 6 months before the subject accident, the plaintiff gave a history to the school counsellor of her mother physically and verbally abusing her. The plaintiff disclosed a denigratory comment attributed to her mother which was bound to affect her self-esteem. At that time she was advised how to make further contact with the counsellor, and she was given some stress management advice to assist her: Exhibit “12”, p 6;

4. On 5 May 2011, the school counsellor referred the issue of the plaintiffs’ wellbeing to a welfare team: Exhibit “12”, p 6. There is no record of the plaintiff seeing a school counsellor again before her father’s accident on 5 October 2011;

Post-accident

5. On 24 July 2013, 17 months after her father’s accident, and after many months of providing him with personal care and assistance, the plaintiff was referred for counselling because of a disclosed history of a deteriorating relationship with her father. The home context was that, understandably, the plaintiff was having difficulty providing her father with personal care. The school context of that referral was that the plaintiff was tearful and had not wanted to participate in her mathematics lesson that day: Exhibit “12”, p 5. The trigger at school for this referral was that the plaintiff’s mathematics teacher had noted that the plaintiff had uncharacteristically refused to participate in a lesson and had made some obscure comment, and she did not want to be drawn into conversation on it, other than to say there were issues at home, and her father’s health was deteriorating: Exhibit “C”, Vol 1, p 338;

6. In the 2013 notes made by the counsellor following that referral, there was an unspecified and unremarkable concern raised by the plaintiff about her boyfriend. Afterwards, in 2013, there was a period of disengagement with the counsellor, followed by a re-engagement in Term 2 in 2014. The content of the 2014 health service notes relating to the plaintiff show that in 2014, the plaintiff was carrying a blade and was self-harming by cutting her arms, had suicidal ideation, and presented with depressive symptoms, with a history of having seen a sports psychologist who told her she was depressed. Her ongoing role in providing care for her father was noted at that time: Exhibit “12”, p 1.

7. On 14 October 2013, the plaintiff had breathing difficulties and was experiencing an exercise-related cough. This was assessed at the Children’s Hospital at Westmead. The problems were diagnosed as being anxiety related: Exhibit “C”, Vol 1, pp 125 – 127;

8. On 15 October 2013, Associate Professor Selvaduria, a respiratory medicine specialist, wrote to the plaintiff’s sports psychologist advising that the plaintiff had severe anxiety and related vocal cord dysfunction: Exhibit “C”, Vol 1, p 137;

9. On 29 November 2013, the plaintiff was offered access to the school counsellor because she was experiencing breathing difficulties and panic attacks. At the time she declined that offer whilst she was in an upset state. The referring teacher considered the problem was critical and that it required urgent attention: Exhibit “12”, p 4.

10. On 24 April 2014, Associate Professor Selvaduria saw the plaintiff for her anxiety and vocal cord dysfunction and planned to carry out a fibre-optic bronchoscopy inspection procedure to determine the state of her vocal cords in 3 months’ time: Exhibit “C”, Vol 1, p 124;

11. On 3 July 2014, the plaintiff was seen by Dr Albert Shafransky, a cardiologist, regarding fainting spells. He considered those to be syncopal due to postural hypotension and the stress which had followed her father’s accident: Exhibit “C”, Vol 1, p 141;

12. On 16 July 2014, the plaintiff was seen at the Respiratory Medicine Clinic at the Children’s Hospital at Westmead for her anxiety and vocal cord dysfunction problems: Exhibit “C”, Vol 1, pp 128 – 129;

13. On 31 July 2014, there was communication between the plaintiff’s high school and the local youth mental health service over the plaintiff’s cutting and self-harming behaviour, her suicidal ideation, and her decreased school performance, with depression: Exhibit “C”, Vol 1, pp 327 – 331;

14. On 1 August 2014, the plaintiff underwent a mental health assessment for her anxiety disorder in the context of a reported deterioration in her cognitive functioning and a propensity for self-harming activities: Exhibit “C”, Vol 1, pp 142 – 150;

15. Between 4 August 2014 and 12 September 2014 the plaintiff was engaged with the school counsellor concerning her self-harming behaviour of cutting: Exhibit “C”, Vol 1, pp 324 – 325;

16. On 14 August 2014, at the request of the plaintiff’s solicitor, the plaintiff was assessed by Mr Greg Anning, a consultant clinical psychologist. Significantly, he noted there was no history of any chronic health problems prior to the father’s accident. He recorded (at p 347), a history from the plaintiff where she was preoccupied with the thought that her father might have been killed and her last conversation with him was when he was upset with her. He considered that the plaintiff’s psychological complaints and irrational feelings of guilt over her father’s accident were consistent with a diagnosis of major depressive disorder (single episode), with features of anxiety and self-harm. He considered that as a high functioning athlete, this negatived the existence of the plaintiff having a pre-existing condition. He related the cause of the psychological condition to the father’s motorcycle accident and its sequelae: Exhibit “C”, Vol 2, pp 343 – 351;

17. In 2014, the plaintiff accessed the local youth mental health service with the presenting problems of depression, self-harm by cutting, and suicidal ideation. She attended for assessment, counselling and support against a background history of decline in her school performance and attendance. An assessment formulation was noted as comprising a cycle of a more depressed mood, co-existent stress of Year 11, feelings of isolation from friends, and school avoidance were also noted. She was put into contact with the Butterfly Foundation, and it was noted that she was able to stop carrying a blade and had achieved a motivation to change her behaviour: Exhibit “12”, pp 1 – 3;

18. On 2 October 2014, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Angelo Virgona, a consultant psychiatrist: Exhibit “1”, pp 17 – 28. Dr Virgona noted a prior accident history, a mildly dysphoric state, and in describing her reaction to her father’s injuries, she suffers a psychological reaction consistent with a chronic adjustment disorder with mixed anxiety and depressed mood. Significantly, he noted there were a number of factors in her background which made her vulnerable to the development of such a reaction which probably impact on her capacity to cope with such problems. He identified these as early life anxieties, interpersonal difficulties, learning problems, physical abuse from her mother, the need to care for her father, and her ongoing living conditions. Having documented the diagnosis and those background factors, he considered (at p 28) those matters did not arise as a result of “sudden shock” but instead developed in the context of having to deal with her father’s care, and the consequences of that, on the background of her personality vulnerabilities. Dr Virgona’s opinion that the plaintiff had not experienced a “sudden shock” requires evaluation for its basis;

19. On 2 December 2014, the local youth mental health service wrote to the plaintiff’s year advisor at school informing her of the plaintiff’s diagnosis of generalised anxiety disorder, panic attacks, depression, self-harming behaviour, in the context of family issues, interpersonal and school stress. A treatment plan was identified, which included antidepressant medication. A history of recent unwellness and inability to attend school was identified to have been from 28 November 2014. A request was made to the school to make some suitable arrangements for the plaintiff to complete her assigned tasks: Exhibit “D”;

20. On 2 December 2014, the local youth mental health service noted the plaintiff had been attending weekly sessions and had been prescribed antidepressant medication and melatonin to assist with her sleep problems, with inconsistent results. It was also noted the plaintiff was experiencing a lot of anxiety and worry over her school assessments and was expressing significant cognitive and attention problems. It was noted that she was needing support at school: Exhibit “D”;

21. On 7 December 2014, the plaintiff presented to the Emergency Department at Fairfield Hospital at 22:56 hours with a history of having overdosed on Zoloft, prescribed for her anxiety and depression. She was noted to be shaking, crying, tachycardic and hypotensive. She had taken 5 tablets. She felt low mood, and had not slept for 4 days, and she wanted to harm herself. She was discharged into the care of her father once she had settled and tests had been completed on the following day: Exhibit “E”. The mental health assessment formulation for this admission was depression and an anxiety disorder with expressed regret over misuse of medication. She was considered to be safe for discharge home with arrangements for a psychiatric follow-up: Exhibit “C”, Vol 1, p 133;

22. On 11 December 2014, the psychologist, Mr Anning responded to an inquiry from the plaintiff’s solicitor. His response was to the effect that in his opinion a person of normal fortitude might suffer a recognised psychiatric illness in the described circumstances, most likely a depressive condition. Significantly, he noted that DSM-5 no longer has grief as an exclusion to a diagnosis of major depressive disorder. He concluded it is entirely reasonable to expect the plaintiff, a person of normal fortitude, would suffer a recognised psychiatric illness in the circumstances of her father’s accident: Exhibit “C”, Vol 2, p 355. Mr Anning also provided a supplementary report confirming that in his view, the plaintiff’s chronic major depressive disorder (single episode) was a recognised psychiatric illness, that was causally related to her father’s motorcycle accident;

23. On 27 January 2015, at age 17 years, the plaintiff underwent a mental health review in the context of her regular psychotherapy. She reported feeling depressed and empty. Ongoing self-esteem issues were noted. Antidepressant medication was stopped at that time as it was not helping. The records showed a history of chronic suicidal ideation and cutting, anxiety, worry, rumination and sleeping difficulties: Exhibit “F”, pp 1 – 6;

24. In 2015, the plaintiff consulted the local youth mental health service on 10 February 2015, 11 February 2015, 13 March 2015, 18 March 2015, 20 March 2015 and 22 May 2015: Exhibit “12”, pp 10 – 14. She was seen for ongoing psychological problems which were noted to comprise difficulties with anxiety, depressed mood, difficulty sleeping, impaired coping, feeling “numb” and feeling irritable;

25. On 25 February 2015, the plaintiff was assessed for Dialectical Behavioural Therapy at the local youth mental health service for treatment of her major depression, her generalised anxiety and her panic disorder: Exhibit “C”, Vol 1, pp 151 – 153;

26. On 27 February 2015, the local youth mental health service wrote to the plaintiff’s school to ensure that her teachers were aware of her psychological difficulties. That request also sought to ensure that the plaintiff be supported at school: Exhibit “F”, p 21;

27. On 1 June 2015, at the request of her solicitor, the plaintiff was examined by Dr Kenneth Howison, an ENT surgeon, for consideration of her breathing difficulties. He considered her complaints of difficulty breathing, with tightness in her throat, to be due to anxiety and stress: Exhibit “C”, Vol 2, pp 391 – 393;

28. On 9 June 2015, the Education Department was advised by a psychologist involved in the plaintiff’s treatment that she needed consideration for her school assessments because of her panic disorder and major depressive disorder in the context that she was having difficulty with paying attention and concentrating, which would affect her examination performance: Exhibit “C”, Vol 1, p 157;

29. On 10 July 2015, the local youth mental health service noted the plaintiff was attending that service either weekly or fortnightly for psychotherapy sessions because of her mental state which was described as major depression and generalised anxiety disorder and panic disorder which impacts on her day-to-day functioning, leading to amotivation and lethargy, and deteriorating cognitive function, impaired ability to concentrate on her school work, and self-harming behaviour that requires supervision: Exhibit “F”, pp 22 – 23;

30. On 10 July 2015, the local youth mental health service also noted the plaintiff’s deterioration in her cognitive function and in her ability to concentrate and pay attention to her schoolwork. Her self-harming behaviour was also noted: Exhibit “C”, Vol 1, p 155;

31. On 24 July 2015, the plaintiff saw the local youth mental health service because of severe panic attacks and anxiety depression and exam stress which resulted in her not sitting for her senior Science exam on that day. A letter was sent to the plaintiff’s school by a psychiatric registrar seeking that she be given special consideration and support at this time: Exhibit “F”, p 25;

32. On 24 July 2015, the local youth mental health service wrote to the plaintiff’s school advising she was experiencing panic attacks which prevented her from sitting for her senior examinations: Exhibit “C”, Vol 1, p 158;

33. On 4 December 2015, the local youth mental health service psychiatric Registrar wrote to the plaintiff to encourage her to transfer her care to another service as she had finished her schooling. At that stage the plaintiff had reached the age of 18 years and the availability of the youth mental health service facility for her had concluded : Exhibit “F”, p 26;

34. On 10 December 2015, Assessor Anderson issued a MAS assessment certificate confirming the plaintiff had a major depressive disorder caused by the subject accident: Exhibit “C”, Vol 2, pp 439 – 451, pp 453 – 466;

35. On 22 December 2015, the plaintiff attended a mental health service review after the HSC exams with presenting problems of depression, anxiety and perfectionism, with impaired mood. The records show earlier attendances on 23 June 2015, 26 June 2015, 10 July 2015, 24 July 2015, 31 July 2015, 28 August 2015, 4 September 2015, 11 September 2015, 18 September 2015, 25 September 2015, 30 September 2015,: Exhibit “F”, pp 7 – 20;

36. On 17 February 2016, the local youth mental health care unit prepared a detailed discharge summary outlining the treatment that had been provided to the plaintiff between the time she had been referred to that service by the school counsellor in August 2014 until she no longer met the criteria for engagement with that service at age 18. It was noted that the plaintiff still had ongoing psychological problems requiring treatment: Exhibit “F”, pp 28 – 33. The youth mental health psychologist prepared a discharge summary. The plaintiff’s problems were identified as depression, disconnected from peers and sleep difficulties: Exhibit “C”, Vol 1, pp 277 – 280;

37. On 30 March 2016, at the request of her solicitor, the plaintiff was examined by Dr Leonard Lee, a consultant psychiatrist. He considered that her father’s accident had caused her to suffer a major depressive disorder with profound consequences (at p 398), which occurred at a critical stage of her development. He considered this to have profoundly contributed to a destabilisation of her personality functioning. He considered the problem was likely to be chronic: Exhibit “C”, Vol 2, pp 394 – 400;

38. On 13 January 2017, at the request of the plaintiff’s solicitor, the plaintiff underwent a vocational assessment by Mr Ross Girdler. He concluded (at p 429), that the plaintiff would be unable to sustain any occupation without a supportive work environment: Exhibit “C”, Vol 2, pp 415 – 433;

39. On 23 January 2017, the plaintiff was assessed by Headspace for assistance with her anxiety that she felt was triggered by her father’s accident on 5 October 2011. The plaintiff reported that her episodes of anxiety make her feel that her chest is going to collapse. It was noted that she feels she is easily irritated. She reported persistent low moods, amotivation, reduced appetite, poor sleep, and she felt “numb” and “not there”. The plan was for supportive counselling to continue: Exhibit “C”, Vol 1, pp 274 – 275;

40. On 4 March 2017, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Jeffrey Baron-Levi, of the Bogan Psychological Centre: Exhibit “1”, pp 55 – 73. Before the subject accident, he had previously assessed the plaintiff and issued reports on 10 May 2006 and 13 April 2007. Those reports were not tendered in evidence in these proceedings so it is difficult to evaluate the basis and the applicability of the opinions he has expressed, including an evaluation of the following summaries of his earlier reports, as extracted from pp 55 – 56 of Exhibit “1”:

“In my earlier report of the 10 May 2006 I reported Mrs Damirdjian was of the view that the motor vehicle accident had affected Christina’s academic standing in 2004 which resulted in her subsequent repetition in 2005. However, I had drawn the conclusion, based on the evidence at that time, that the accident “has had little impact on Christina's learning or academic skills(sic”). The school reports from St Gertrude’s, which I sighted made it clear that Christina was experiencing difficulty with her learning and attitude toward school well before her accident. I noted Christina’s Year 1 teacher reported on the 5 December 2003, some 10 days before her accident that another year in Year 1 “should help consolidate her learning”. A psychometric assessment by Mr Tierney on the 11 July 2004 placed Christina within the Low Average range.

I had given the opinion that the reports that I sighted only served to reinforce the opinion that I had earlier expressed- (sic) that Christina's difficulty with learning and school performance were not at all related to her accident and that in fact there was documented evidence that she was experiencing significant difficulties prior to that accident.

Dr Apler reported on the 27 September 2006 that he was of the opinion that (Christina developed PTSD in the initial period following the accident but that this had now largely resolved. Dr Apler noted it was likely Christina’s emotional symptoms were related to the family disharmony caused by the considerable marital conflict. I had reported that because of the considerable family stress following the accident, that it was more than likely that Christina was caught up in this emotional reaction and that she “no doubt presented with symptomatology immediately following the motor vehicle accident.” I hesitated to label this symptomatology as PTSD because I was of the view that Christina appeared to have been caught up in the family’s anxiety and shock following the accident and that her reaction was probably an expression of her mother’s sense of shock and anxiety.

Dr Apler stated that he found no evidence of a depressive disorder or any other psychiatric disorder on assessment of Christina’s mental state, I entirely agreed with this assessment and noted that I had drawn the same conclusion in my earlier report of the 10 May 2006.

I agreed with the general conclusions reached by Dr Apler that Christina’s emotional symptoms were related to the family disharmony caused by the considerable marital conflict”;

The report of a Dr Apler, as referred to above extract, was not in evidence. Dr Baron-Levi’s report (at p 56) seems to refer to the effects of an accident in 2003, referring to the plaintiff being caught up in “the family’s anxiety and shock following the accident”. Given the reference to Dr Apler’s opinion that whatever problems there were had largely resolved some 10 years earlier, this material seems to be of little relevance or weight. I do not read Dr Baron-Levi’s report as providing any evidence that is contradictory of the plaintiff’s evidence that she suffered shock on learning of her father’s accident. Dr Baron-Levi’s record of the plaintiff learning of her father’s accident (at pp 57 – 58) was nothing like the detail within the plaintiff’s unchallenged evidence in these proceedings. In his 2017 assessment, Dr Baron-Levi assessed the plaintiff’s test results as showing “extremely severe” scores for depression, anxiety and stress. Dr Baron-Levi concluded (at p 68):

“In my opinion, the results of the TOMM indicated that Ms Damirdjian was putting in an optimal performance and there was no evidence of malingering.

The results of the current assessment indicated that Ms Damirdjian rated her level of depression, anxiety and stress as measured by the DASS42 as falling within the Extremely Severe range, her level of depression on the BDI-II as being in the Severe range as was her level of anxiety on the BAI.

In my opinion there was evidence that Ms Damirdjian satisfied the DSM5 criteria for a diagnosis of clinical depression. I am of the view that Ms Damirdjian was unfortunately placed into a position where she felt compelled to be her father’s carer when in fact a carer could have been provided for him. The evidence before me would suggest that because of her role as her father’s sole carer at such a young age, Ms Damirdjian was teased and bullied by other students at Fairvale High School, was subsequently marginalised by those students, was placed in a position where a large part of her time was spent in caring for her father and for the household to the exclusion of her studies and her wrestling, and that this situation led to her depression and anxiety. Ms Damirdjian’s feeling of depression was further compounded by her feelings of guilt that she felt responsible for the accident when there was no evidence to support this view.

In my opinion there was little evidence now to support the view that Ms Damirdjian’s current presentation was a direct result of her father’s motor vehicle accident. There were several lines of enquiry that lead me to these opinions.”

41. On 20 May 2017, at the request of the solicitor for the first defendant, Dr Baron-Levi provided a commentary on a vocational report from Mr Girdler, in which he disagreed with Mr Girdler’s opinions: Exhibit “1”, pp 74 – 78;

42. On 2 August 2017, Dr Lee and Dr Virgona met in a conclave and prepared a joint report. They agreed that the plaintiff did not appear to have had a diagnosable psychiatric disorder before her father’s accident. They also agreed, in the form of a double negative, that the father’s accident was not a negligible factor in the plaintiff’s subsequent psychiatric symptoms. They agreed that the plaintiff was vulnerable to the development of a psychiatric disorder due to the adverse factors at play in her environment: Exhibit “C”, Vol 2, pp 434 – 436;

43. On 15 August 2017, at the request of her solicitors, the plaintiff was examined again by the psychologist, Mr Anning. He reviewed the additional materials sent to him, and he reviewed his initial assessment. The plaintiff was aged 20 at this assessment. She was noted to have pressured speech, and there was some evidence of psychomotor retardation. He reviewed the material provided to him and (at p 368) he reiterated his DSM5 diagnosis of major depressive disorder, panic attacks and features of post-traumatic stress disorder. His testing revealed the plaintiff to be suffering from significant depressive and anxiety symptoms on reviewing the history, Mr Anning stated (at p 369), that he believed the plaintiff did experience a sudden psychological shock on seeing her father in hospital and her psychological condition has deteriorated over time since then. He considered the prognosis to be guarded, and he considered that her vocational options are limited due to her vulnerability: Exhibit “C”, Vol 2, pp 356 – 375;

44. On 24 August 2017, Mr Girdler and Dr Baron-Levi had a conclave meeting by telephone and reached the following agreement:

“While the circumstances around her recent open employment are not known by either expert, Ms Damirdjian has demonstrated an ability to secure work, and has sustained employment in the open employment market for periods of up to 6 months working in the financial services sector. She reportedly worked for 6 months for a private financial services company from mid-2016 and then for the past 6 months with Commsec. Presumably Ms Damirdjian remained in full time employment with the Commonwealth Bank. It was agreed by both parties that these events were not entirely consistent with her psychological diagnosis of Major Depression. It was agreed by both parties that a person with a diagnosis of Major Depression would not usually have had the capacity to secure and maintain employment in the financial services sector for a period of at least 12 months.

The documents from the Commonwealth Bank indicated Ms Damirdjian was on an annual salary in excess of $64,000.

Based on the assumption that Ms Damirdjian secured this employment through her own volition, and that she is coping psychologically with it, it is agreed that she has the ability to secure and sustain work independently in the open employment sector.

The implications of the above agreed position are that Ms Damirdjian's psychological condition has had negligible impact on her working life.”

[Exhibit “4”];

The matters that were presumed in that conclave regarding the plaintiff’s employment, as cited in the above extract, must be considered in light of the oral evidence of her work difficulties, part-time hours, and her concerns over her continued future employment.

45. On 14 February 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 282;

46. On 17 February 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 283;

47. On 9 March 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 284;

48. On 10 March 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 285;

49. On 26 April 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 286;

50. On 1 May 2018, the plaintiff was provided with a mental health care plan for her psychological symptoms, her self-harming behaviours and for stress management: Exhibit “C”, Vol 1, p 288;

51. On 1 May 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 290;

52. On 22 May 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 292;

53. On 7 June 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 293;

54. On 29 June 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 294;

55. On 20 September 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 295;

56. On 11 October 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 296;

57. On 31 October 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 297;

58. On 31 October 2018, the plaintiff was referred for complex medical assistance: Exhibit “C”, Vol 1, p 298;

59. On 31 October 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 300;

60. On 11 December 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 301;

61. On 12 December 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 302;

62. On 31 December 2018, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 303;

63. On 11 January 2019, at the request of her solicitor, the plaintiff was re-assessed by Mr Anning. He reviewed material provided to him from Dr Lee and Mr Girdler. He said that his opinion (at p 386), was unchanged in that he continued to hold the opinion that the plaintiff’s diagnosis was major depressive disorder, with severe anxiety. He stated the plaintiff did not meet the diagnostic criteria for PTSD. He confirmed it was the father’s accident that set in train a series of event that have profoundly affected the plaintiff and this is likely to continue to affect her in the future. He explained that the accident occurred at a critical point in her development and his loss profoundly contributed towards a destabilisation in her personality and functioning. He said the prognosis for significant recovery was poor: Exhibit “C”, Vol 2, pp 376 – 390;

64. On 24 January 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 304;

65. On 31 January 2019, at the request of her solicitor, the plaintiff was re-examined by Dr Leonard Lee. He considered the plaintiff suffers from a chronic major depressive disorder with co-morbid panic attacks caused by the effects of her father’s accident upon her. He stated she was pre-morbidly vulnerable for this to occur: Exhibit “C”, Vol 2, pp 401 – 409;

66. On 8 February 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 305;

67. On 19 February 2019, the plaintiff was re-examined by Dr Virgona who reviewed the plaintiff’s history and other reports that were provided to him by the first defendant’s solicitor. In this report (at pp 40 – 41), he reiterated his earlier opinion that the plaintiff suffered a psychological reaction to her father’s accident and its consequences, consistent with a chronic anxiety disorder with mixed anxiety and depressed mood, including a generalised anxiety disorder on a background of personality vulnerability. He described this as reasonable in the context. He explained that there were a number of underlying factors that made her vulnerable to develop that reaction, and impact specifically on her ability to cope with it. In addressing questions asked of him (at p 42), he stated she was capable of maintaining employment on a part-time basis: Exhibit “1”, pp 29 – 43;

68. On 21 February 2019, the plaintiff was re-examined by Dr Baron-Levi. His report of that examination was dated 14 February 2019: Exhibit “1”, pp 79 – 95. Dr Baron-Levi again (at p 79), referred to his earlier 10 May 2006 report which was not in evidence. It was therefore not possible to evaluate Dr Baron-Levi’s opinion (at p 90), which stated: “The evidence suggested that in all likelihood, Ms Damirdjian was presenting with symptoms of anxiety and depression as a result of the earlier motor vehicle accident and then these were exacerbated by family issues and school stress well before the subject accident”. He went on to reiterate in view (at p 91), that there was little to support her presentation “was a direct result of her father’s motor vehicle accident”. He went on to express views on the plaintiff’s earning capacity which will be taken up in my reasons for assessing the plaintiff’s damages;

69. On 15 March 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 306;

70. On 20 March 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, pp 307 – 308;

71. On 15 April 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 309;

72. On 14 May 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 310;

73. On 21 May 2019, the plaintiff’s general practitioner referred her to Open Minds Psychology for treatment of her anxiety, panic attacks and sleeping difficulties: Exhibit “C”, Vol 1, p 312;

74. On 21 May 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 314;

75. On 22 May 2019, the plaintiff’s general practitioner answered a questionnaire confirming she had depression and anxiety justifying psychological therapy: Exhibit “C”, Vol 1, p 315;

76. On 24 May 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 316;

77. On 27 May 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, p 317;

78. On 5 June 2019, the plaintiff had a medical certificate certifying she was unfit for work: Exhibit “C”, Vol 1, pp 318 – 319;

79. On 26 May 2020, at the request of the solicitor for the first defendant, the plaintiff was re-examined by Dr Virgona: Exhibit “1”, pp 44 – 54. . He reviewed materials provided to him. He noted her mood was dysphoric, teary with a reactive affect. He reviewed his earlier opinion of 2 October 2014 (at pp 51 – 52), and his earlier opinion of 19 February 2019 (at p 52), and reiterated his earlier diagnosis of generalised anxiety disorder on a background of personality disorder of the borderline type;

80. On 28 May 2020, at the request of the solicitor for the first defendant, the plaintiff was examined by Dr Baron-Levi who reported on 11 June 2020. He again referred to his earlier report dated 10 May 2006 that was not in evidence, and his reports dated 4 March 2017, 20 May 2017 and 19 May 2019. He referred to, summarised and reiterated his opinions in those reports. He stated (at p 100) that the plaintiff may have been presenting herself in a negative light “or likely exaggerating her symptoms”. He accepted she had symptoms of anxiety but stated they did not satisfy the DSM5 criteria for depression: Exhibit “1”, pp 96 – 114. I give that view little weight because the elements of suggested exaggeration were not adequately identified, and they were not put to the plaintiff fair and square for her comments in response. He again reiterated (at p 109), that the plaintiff’s symptoms were not a direct result of her father’s accident;

81. On 3 December 2020, at the request of her solicitor, the plaintiff was re-assessed by Dr Lee by means of a teleconference. He reviewed her updated history and reiterated his earlier diagnosis of chronic major depressive disorder with co-morbid panic attacks caused by her father’s accident: Exhibit “C”, Vol 2, pp 410 – 414;

82. On 20 January 2021, at the request of the solicitor for the first defendant, the plaintiff was assessed by Professor James Bright as part of a vocational assessment. That assessment will be considered in relation to the damages issues: Exhibit “1”, pp 133 – 144;

83. On 29 January 2021, Professor Bright prepared a “Job Match Report” that will be considered in relation to the damages issues: Exhibit “1”, pp 145 – 153;

84. On 29 January 2021, at the request of the solicitor for the first defendant, Ms Liz Atteya, prepared a “Labour Market Analysis Report” that will be considered in relation to the damages issues: Exhibit “1”, pp 154 – 174;

85. On 3 February 2021, at the request of the solicitor for the first defendant, Ms Gillian Steward and Professor Bright carried out a vocational capacity functional assessment report. That assessment will be considered in relation to the damages issues: Exhibit “1”, pp 115 – 132;

86. On 12 March 2021, at the request of the plaintiff’s solicitor Mr Girdler commented on the material provided by the defendant comprising vocation capacity assessments carried out by Mrs Stewart, Professor Bright and Ms Atteya: Exhibit “G”. Relevantly, and aptly in my view, Mr Girdler provided the following commentary on that material:

“HISTORY

Ms Darmirdjian’s (sic) history has been repeatedly and exhaustively detailed in reports from dozens of authors of various areas of expertise over a period of almost a decade. I myself have completed two reports on her vocational prospects and a joint expert witness conclave report. I cannot imagine what the total cost of these assessments might be and I am very reluctant to continue to contribute to those costs any more than is absolutely necessary. Consequently this report will be concise and I request that further background details be obtained from previously published reports.”

[Exhibit “G”, p 2]

Causation of harm and reliability of expert opinions

76. The elements of the causation analysis that is required in this case are: first, a consideration of the content of the various medical and psychological opinions in terms of reliability as a guide to determining the diagnosis of the plaintiff’s problems; secondly, the cause of those problems in both the clinical and the legal context; and thirdly, whether those matters meet the criteria required by Pt 3 of the CL Act dealing with mental harm.

Consideration of reliability of medical and allied opinions

77. A review of the medical and allied reports summarised at sub-paragraphs (1) to (86) of paragraph [75] above, reveals a general common theme of acceptance that the plaintiff has a recognised psychiatric illness that has attracted a varying range of labels; anxiety, generalised anxiety disorder, panic attacks, suicidal ideation, self-harming, depression, chronic major depressive disorder, chronic adjustment disorder, chronic destabilisation of personality functioning, and features of a post-traumatic stress disorder.

77. The preponderance of the identified psychiatric and psychological opinions within that material is that those descriptions of the plaintiff’s psychiatric illness fit within the statutory requirements within Pt 3 of the CL Act that must be met for the recovery of damages for mental harm in the form of recognised psychiatric illness.

78. In that context, the opinions of Dr Virgona and Dr Baron-Levi seem to be the outliers within that array of expert opinions when compared with the opinions of their professional colleagues.

Opinions of Dr Virgona and Dr Lee

80. Whilst Dr Virgona, in his report dated 2 October 2014, agreed that the plaintiff had a psychological reaction to her father’s injuries, and that reaction attracted the diagnostic labels of chronic adjustment disorder with mixed anxiety and depressed mood, he did not consider this was due to “sudden shock”. That causation question is a factual matter to be determined by reference to the evidence.

81. The causation question raised by Dr Virgona was refined and reframed in a joint report dated 2 August 2017 which arose as a result of his meeting with Dr Lee, where those experts agreed that the plaintiff did not appear to have a diagnosable psychiatric disorder before her father’s injuries, and her father’s accident was “not a negligible factor” in the plaintiff’s subsequent psychiatric symptoms. In my view, that joint opinion indicates Dr Virgona has moved away significantly from his initial formulation that the plaintiff’s psychiatric illness developed due to her having to deal with her father’s post-accident care and was not due to “sudden shock”.

82. In my opinion, Dr Virgona’s initial view ran contrary to the evidence of the plaintiff suffering shock at the outset, that is, at the very time she learned her father was injured. I have accepted her evidence in that regard. The fact that the plaintiff subsequently had to deal with her father’s care in the context that she was thought to have had a vulnerable personality is beside the point. A negligent driver must take the plaintiff as she is found, together with her underlying vulnerabilities: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18], p 406.

83. I find that there is no sound basis in the factual evidence to support Dr Virgona’s initial formulation that the plaintiff did not experience a “sudden shock”. I find that the plaintiff did in fact experience a shock of that kind in the instant that she learnt her father had been injured.

Opinions of Dr Baron-Levi and Mr Anning

84. Dr Baron-Levi’s outlier formulation as to the cause of the plaintiff’s problems falls into a different category. The timing of his assessment entering into the array of evidence was March 2017. In my view, there are two fundamental problems that preclude an acceptance of Dr Baron-Levi’s opinions in this case.

85. The first problem which afflicts any material reliance on Dr Baron-Levi’s opinions is that his opinions have been influenced by two of his own earlier reports about the plaintiff which have not been tendered in evidence. These are his reports dated 10 May 2006 and 13 April 2007, possibly relating to an earlier claim arising from the plaintiff’s 2003 motor vehicle accident when she was aged 6 years. In that material, Dr Baron-Levi gave consideration to a psychiatric report of a Dr Apler, which also has not been tendered in these proceedings. It is not necessary to inquire as to how Dr Baron-Levi felt able to use reports he had prepared for other litigation without offending against what is known in legal shorthand as the Harman principle. The same comment applies to his use of Dr Apler’s report from that other litigation. The letter of instruction to him from the defence solicitors was not in evidence so no further analysis of that process is possible: Harman v Secretary of State for the Home Department [1983] 1 AC 208, at 308.

86. The absence of those referenced reports within the evidence tendered in this case necessarily means that Dr Baron-Levi’s opinion is in some material respects opaque to analysis. This is an unsatisfactory circumstance which in my view indicates that little weight should be placed on Dr Baron-Levi’s opinions because the basis for them is not sufficiently transparent. The first defendant’s solicitors who commissioned Dr Baron-Levi’s reports for tender in these proceedings are known to be experienced in this type of litigation. The absence of the reports in question has not been explained. It is no answer to say that Dr Baron-Levi has summarised some of the content of his earlier reports from the other litigation. The patent non-transparent selectivity of that process needs no further discussion to demonstrate its inherent vice, as identified above.

87. The statement by Dr Baron-Levi as cited at sub-paragraph (68) of paragraph [75] above is inherently problematic because his opinion that “in all likelihood” the plaintiff’s presenting problems of anxiety and depression were “as a result of the earlier motor vehicle accident” in 2003 is not reflected in the evidence and it is based on ex cathedra material that remains opaque to analysis in these proceedings.

88. There is no evidence to support that last cited opinion and it is inadequately reasoned: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21; UCPR Sch 7 cl 5(c).

89. The second problem for the defence in relying upon Dr Baron-Levi’s opinions is that in his 28 May 2020 report, he expressed the view that the plaintiff had been presenting herself in a negative light or was likely exaggerating her symptoms. Not only was the basis for that opinion not explained by adequate reasons as required by UCPR Sch 7, cl 5(c), but it seems to be contradicted by the plaintiff’s answers to test questions that were designed to identify malingering. Furthermore, in fairness, the assertion of alleged exaggeration has not been squarely put to the plaintiff to provide her with a procedurally fair opportunity to comment on that negative aspect of Dr Baron-Levi’s opinion. Dr Baron-Levi’s comment in that regard did not coincide with my assessment of the credibility of the plaintiff’s testimony which led me to accept her evidence.

90. For the above reasons, individually and in combination, I find myself unable to accept Dr Baron-Levi’s opinions in this case where they conflict with the opinions of other medical practitioners and psychologists.

91. Instead, I prefer and accept the opinions of Mr Anning and Dr Lee to the effect that the plaintiff’s psychiatric and psychological illnesses as described by them were recognised psychiatric illnesses that were caused by the father’s motorcycle accident where her reaction occurred at a critical time in her development, resulting in a chronic destabilisation of her personality functioning.

92. It is not to the point to raise the distracting argument that the plaintiff may have had underlying vulnerabilities: Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1970] HCA 60, at [18], p 406. The defendant must accept the fact that the opinions within the preponderance of the expert evidence that I have accepted is that the plaintiff did not have a psychological or psychiatric illness before her father’s accident.

Consideration of causation of harm

93. The starting point of the causation analysis in this case is to identify the legal principles that guide the analysis and also identify a relevant baseline from which to assess the effects of Armin Damirdjian’s accident upon the plaintiff, as limited by Part 3 of the CL Act.

94. As a guide to the assessment of the plaintiff’s damages the defence submissions pointed to the authoritative statements in Jaensch v Coffey [1984] HCA 52; (1084) 155 CLR 549, at [15]-[18], as follows:

“15. In cases of negligence occasioning nervous shock, as in cases of negligence occasioning physical injury, the "essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen" (The Wagon Mound (No.1), at p.426). The distinction in principle between the two classes of cases, however, depends on the kind of damage that the reasonable man should foresee. Where a plaintiff is entitled to damages for negligence occasioning nervous shock, some recognizable psychiatric illness induced by shock must be reasonably foreseeable.

16. The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and, on the other, shock which causes it. Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them. It is not surprising that Lord Macmillan noted in Bourhill v. Young, at p 103, that:

" ... in the case of mental shock there are

elements of greater subtlety than in the case of

an ordinary physical injury and these elements

may give rise to debate as to the precise scope

of legal liability."

I understand "shock" in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors.”

95. In this case the statements along those lines must also be read in light of the provisions of Pt 3 the CL Act that deal with the recovery of damages for mental harm, and the causation requirements of s 5D of the CL Act, which provides:

5D General principles

(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) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, 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.

(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.

96. It is plain from the evidence of the plaintiff and from the medical evidence that I have accepted, that the sudden shock experienced by the plaintiff on learning of the injuries sustained by her father in the subject accident caused her to suffer personal injury in the form of pure and consequential mental harm or nervous shock within the meaning of s 27 and s 29 of the CL Act.

97. The plaintiff, as a close family member of her injured father, is entitled to recover damages for the mental harm she has incurred by reason of the nervous shock she has suffered: s 29 and s 30 of the CL Act.

98. The preponderance of the medical and allied evidence which I have accepted establishes that the plaintiff has by reason of the events, suffered a recognised psychiatric illness, whereas beforehand there is no reliable evidence to suggest she had a pre-existing illness of that kind: s 31 of the CL Act. She has discharged the onus of proof on that issue.

99. A negligent driver in the position of the driver of the van that commenced a U-turn in front of Mr Armin Damirdjian ought to have foreseen that, if another road user was injured as a result of a breach of duty of care, in those circumstances, a family member of such a road user of normal fortitude might suffer nervous shock or a recognised psychiatric illness: s 32 of the CL Act; Optus Administration Pty Ltd v Wright [2017] NSWCA 21, at [62].

100. Accordingly, the plaintiff’s claim for economic loss is maintainable: s 33 of the CL Act.

101. I find that, but for her father’s accident and her shocked reaction to it, her described psychiatric illnesses would not have arisen: s 5D(1)(a) of the CL Act; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5, at [32].

102. Consequently, the scope of duty of care owed by the driver of the second defendant’s vehicle should be extended to the mental harm suffered by the plaintiff: s 5D(1)(b) of the CL Act. No exceptional circumstances have been demonstrated that would lead to a different conclusion: s 5D(4) of the CL Act.

Plaintiff’s most likely circumstances but for her father’s accident

103. Because the plaintiff makes a claim for future loss of earning capacity it is necessary to consider and make findings as to her most likely circumstances but for her father’s accident as a precursor to any calculated projection of such loss: s 126 of the MAC Act; s 13 of the CL Act.

104. At the plaintiff’s age of 14 years at the time of her father’s injury, it is not possible to predict with certainty what her future career prospects would have been. She was in good physical health and had no identifiable psychological or psychiatric issues of significance. Despite the earlier separation of her parents and any sadness that those circumstances had entailed for her, she seemed to be managing her schoolwork very well before her father’s accident. The fact that at her new School in 2011 she was referred to the school counsellor on account of a past history of maternal abuse does not detract from the many and unrestricted labour market opportunities that would have lain before her in her eventual pursuit of work as an adult to earn income of the order of average weekly earnings.

105. In those circumstances, it would seem artificial and inappropriate to seek to ascribe a particular monetary earning capacity to the plaintiff but for the occurrence of her father’s accident and her consequential psychological injury.

Assessment of damages

106. As a consequence of the required statutory assessments made by the Medical Assessment Service, the plaintiff’s claim for damages is in this case limited to past and future economic loss, including superannuation components for those losses, and past and future out of pocket expenses: s 131 of the Mac Act.

Past economic loss

107. The plaintiff makes a claim for past economic loss in the submitted amount of $69,264. In contrast, the defence concedes that a reasonable buffer award for past economic loss, including superannuation, in the amount of $50,000.

108. The assessment claimed by the plaintiff is based on a number of assumptions, the details of which seem somewhat tenuous.

109. The first such element is a claim for a $25,000 buffer amount to cover the plaintiff’s loss of income between when she commenced work at McDonalds until the time she commenced working for the Commonwealth Bank on 27 February 2017. The evidence to support a buffer of that kind is scant.

110. The second such element is the claim for the value of her reduced hours of work from when she commenced at the Commonwealth Bank where her change to reduced hours was a direct result of her psychological identified problems, particularly anxiety, and an inability to cope with the full requirements of her work. The latter element is claimed at $400 per week to yield $62,400 plus an 11 per cent superannuation component of $6864. The second element totals $69,264.

111. Although the plaintiff’s submissions did not seek to total those figures, when aggregated, they amount to $94,264, not the sum of $69,264 as was submitted.

112. In my view, there is insufficient evidence to justify an award in respect of the first claimed component of a buffer. The second component is necessarily imprecise because of the identified range of salary that based the second calculation. In those circumstances I consider a conservative approach is required. In my view, the defence submission seems reasonable on the evidence adduced. I therefore assess the plaintiff’s past economic loss, including a component for employer funded superannuation, in the buffer amount of $50,000.

Future economic loss

113. The plaintiff makes a claim for future economic loss, or loss of earning capacity, including a component for the related loss of employer funded superannuation, in the projected amount of $589,363. In contrast, the defence concedes a buffer for future economic loss, including superannuation, in the amount of $30,000.

114. On my reading of the plaintiff’s evidence as to her anxiety-related work difficulties, which I accept, she has great difficulty sustaining her work on a part-time basis let alone on a full-time basis. Her condition is chronic and is likely to continue into the foreseeable future.

115. Therefore, on any reasonable measure, I find the defendant’s concession of $30,000 to be manifestly inadequate to compensate the plaintiff on her loss of earning capacity. Her claim involves a number of aggregated propositions, as follows.

116. First, on account of the plaintiff’s psychological impairments, she is unlikely to successfully complete any future tertiary studies, assuming she attempts them. Her past attempts demonstrate this to be so. I accept that proposition as apt.

117. Secondly, it is plain from the evidence comprising the plaintiff’s early high school reports that she was a good student and she had the potential to progress towards qualifying for higher paid positions than the one she has at present, where she only derives a limited income of about $520 per week net. I also accept that proposition as apt. The plaintiff only works part time hours of 24 hours per week because of her anxiety. It is noteworthy that she works in a supported working environment which may not be available to her for much longer and such sheltered positions are not easily obtained if she had to seek alternative employment.

118. If one was to take the Australian Bureau of Statistics comparator of Average weekly total earnings for NSW, namely $1953 per week gross, as identified in the Furzer Crestani Assessment Handbook, 2021, which is the equivalent of $1473 per week net, this shows a difference of $953 per week net between that rate and the plaintiff’s present income of $520 per week net. That figure is not vastly different in effect to Mr Girdler’s estimation of a loss of roughly $1000 per week based on the job comparisons he has made in his reports.

119. The plaintiff’s future economic loss submissions proceed on the basis of a lesser sum of $650 per week net projected at 5 per cent over a working life of 44 years (x 944) less 15 per cent for possible adverse vicissitudes ($521,560) plus 13 per cent for employer funded superannuation ($76,802), totalling $589,362.

120. In my view, that calculation is a relevant comparative yardstick from which to gauge the plaintiff’s loss of earning capacity. However, I do not accept that it is the most appropriate method by which to assess this head of damage.

121. I preface the ensuing analysis by identifying my finding that the evidence of the plaintiff’s difficulties in maintaining her work even on a part-time and supported basis justifies an award of significant damages for future loss of earning capacity: Paff v Speed (1961) 105 CLR 549, at p 566; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.

113. The plaintiff presently has great difficulty coping with her work. She finds it stressful. She has difficulty achieving her key performance indicators. There is no evidence to suggest that situation will improve in the near future. She receives assistance from the employee assistance programme. Her work performance is under critical scrutiny in regular performance reviews. She is at real risk of losing that employment on account of her unsatisfactory performance when measured against the standard which her employer expects of her. This is in the context where she has already reduced her hours to 24 hours per week compared to the usual 38 hours that a person of her age would be expected to be able to fulfil, absent a disabling illness.

114. There is a wide chasm between the plaintiff’s presently limited earning capacity and what would otherwise have been the case absent her chronic psychological injury.

115. In considering the plaintiff’s claim for future loss of earnings or earning capacity, the assessments and job match reports of Professor Bright and Ms Atteya seem to me to be artificial, and do not adequately take into account the severity and the extent of the plaintiff’s loss of capacity due to her anxiety and the destabilisation of her personality, as explained by Dr Lee and Mr Anning.

116. In my assessment, the above considerations justify the plaintiff being awarded significant damages for future loss of earning capacity. She is already working at a significantly reduced rate with considerable difficulty. The continuation of that employment seems tenuous. She has an impaired capacity to seek out, gain and sustain alternative employment on the open labour market compared to non-disabled competitors who do not require special supports from a sympathetic employer. Her chronic psychological problems will most probably preclude her pursuing tertiary studies to advance her career prospects in a competitive labour market.

117. At the age of 24 years those impairments are serious and significant. They are chronic disadvantages to the plaintiff exercising an otherwise unrestricted earning capacity. They represent a substantial impairment in her earning capacity which requires significant compensation.

118. In any assessment of this head of damage there must be a discount for the usual vicissitudes that face all individuals in different age ranges. There is no reason for inferring that in this case the conventional discount would not suffice to protect the interests of the second defendant.

119. That said, I consider that a precise mathematical projection of a weekly sum, even if conventionally discounted, would be an artificial approach in this case. In my evaluation, the facts in this case are better suited to a buffer assessment in a substantial compensatory sum: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] – [27]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, at [33]-[45]; [50]. I assess the plaintiff’s past economic loss, including a component for employer funded superannuation, in the rounded buffer amount of $400,000.

Future out-of-pocket expenses

129. The plaintiff initially made a claim for probable future out-of-pocket expenses to be assessed in the buffer amount of $50,000. In final submissions that claim was reduced to a buffer amount of $15,000.

130. That claim is based on the realistic assumption that in the foreseeable future the plaintiff will continue to receive treatment for her chronic problems from her general practitioner and treating allied health professions, including referrals to appropriate specialist practitioners, and she will continue to be prescribed medication. Although her psychological problems are chronic, the frequency, the extent, and the likely cost of those forms of treatment, and the inherent variations involved, are not precisely calculable.

131. The primary submission of the defence, based on the opinion of Dr Baron Levi was that there should be no award of damages for future treatment expenses. However, in apparent recognition that there might be obvious difficulties in accepting that opinion, the defence adopted the alternative approach of accepting that a buffer amount $15,000 would be reasonable. I consider that concession to be a reasonable basis for assessment in this case. I therefore assess the plaintiff’s probable future treatment expenses in the buffer amount of $15,000.

Past out-of-pocket expenses

132. The plaintiff’s claim for past out-of-pocket expenses for treatment is in the amount of $2910.35: Exhibit “C”, pp 622 & ff.

133. The defence submission on this head of damage was that an amount of $2621.80 was conceded arithmetically and would be conceded in the event of a causation finding in the plaintiff’s favour. I have made that finding contrary to the defence submissions.

134. The difference in the two amounts is $289.15. Properly, the defence does not concede that amount absent evidence of a causal nexus between the disputed treatment and the plaintiff’s disabilities. I therefore assess the plaintiff’s past out-of-pocket expenses in the amount of $2621.20.

Summary of damages assessment

135. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$50,000
(b) Future economic loss	$400,000
(c) Future out-of-pocket expenses	$15,000
(d) Past out-of-pocket expenses	$2,621.20
Total	$467,621.20

Disposition

136. In conformity with my reasons for decision on the liability issues in the case of Armin Damirdjian, the plaintiff is entitled to a verdict and judgment in her favour against the second defendant only, in the amount of $467,621.20, with the costs consequences of that result to follow the costs orders to me made in that case after hearing the parties on the question of costs.

Orders

137. I make the following orders:

1. Verdict and judgment for the first defendant against the plaintiff;

2. Verdict and judgment for the plaintiff against the second defendant in the amount of $467,621.20;

3. The plaintiff’s application for interest on damages is refused at this stage;

4. I will hear the parties on the appropriate order for costs;

5. The exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

25 February 2022 - Typographical errors at paragraphs [36], [75(39)], [84] and [98]

Decision last updated: 25 February 2022