Hoblos v Alexakis (No 2)

[2022] NSWCA 11

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hoblos v Alexakis (No 2) [2022] NSWCA 11

Hearing dates:

On the papers

Decision date:

10 February 2022

Before:

White JA at [1];
McCallum JA at [2];
Davies J at [72]

Decision:

(1) Judgment for the appellant in the sum of $593,157.76.

(2) Failing agreement as to costs, the parties to provide written submissions as to costs within 7 days for determination on the papers.

Catchwords:

TORTS — General principles — Damages — Requirement to assess damages following successful appeal — Whether assessment should be undertaken by Court of Appeal in circumstances where adverse credit findings made by primary judge — Where quantification of damages turns primarily on expert medical evidence — Proportionality and convenience

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 60

Motor Accidents Compensation Act 1999 (NSW), s 126

Supreme Court Act 1970 (NSW), s 75A(6)

Cases Cited:

Amaca Pty Ltd v Latz; Latz v AmacaPty Ltd (2018) 246 CLR 505; [2018] HCA 22

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hoblos v Alexakis [2021] NSWCA 126

Category:

Consequential orders

Parties:

Khaled Hoblos (Appellant)
Nick Alexakis (Insurer)

Representation:

Counsel:
R McIlwaine SC (Appellant)
K Rewell SC (Insurer)

Solicitors:
McInnes Wilson Lawyers NSW (Appellant)
Hall and Wilcox (Insurer)

File Number(s):

2020/14206

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

20 December 2019

Before:

Priestley SC DCJ

File Number(s):

2018/00347191

Judgment

1. WHITE JA: I agree with McCallum JA, for the reasons her Honour gives, that this Court can and should assess damages. I also agree with her Honour’s assessment of damages and the orders her Honour proposes.

2. McCALLUM JA: Khaled Hoblos appealed from a decision of the District Court rejecting his claim for damages for personal injury arising from a motor vehicle accident and entering judgment for the defendant. On 23 June 2021, we allowed the appeal and set aside the judgment: Hoblos v Alexakis [2021] NSWCA 126. It follows that Mr Hoblos is entitled to an award of damages. However, the primary judge did not undertake an assessment of damages in case of a successful appeal. Indeed, the reason the claim failed was that his Honour concluded it was not possible to quantify damages on any rational basis (owing to his Honour’s assessment that Mr Hoblos was unreliable both as a historian of his symptoms and as a witness). Accordingly, that assessment must now be undertaken.

Whether damages should be assessed by this Court

3. The parties agree that it would be preferable, if possible, for this Court to assess damages rather than order a new trial in the District Court. As I noted at [181] of the principal judgment, the costs of a second trial (on top of the costs of the first, and the appeal) would in all likelihood be disproportionate to the interest at stake: cf s 60 of the Civil Procedure Act 2005 (NSW).

4. In the principal judgment at [186], I expressed the view (with which Davies J agreed) that it was not necessary to remit the proceedings to the District Court because the quantification of damages would turn primarily on the expert medical evidence, which this Court has analysed in detail and which does not raise issues of credit. I accept as a qualification to that view that Mr Hoblos’s unreliability as a historian informs the analysis of the medical evidence but that was taken into account in our reasoning in the principal judgment.

5. However, White JA expressed a concern as to whether this Court would be in a position to undertake that task. His Honour said at [54]:

“It is not presently clear to me whether damages can be assessed by this court in the absence of findings by the primary judge (including as to those required by s 126 of the Motor Accidents Compensation Act) and where credit findings about the plaintiff may need to be made. The parties should be directed to provide submissions on the assessment of damages, including as to whether that assessment should be remitted to the District Court.”

6. In deference to that concern, Davies J and I joined in orders proposed by White JA directing the parties to provide written submissions on the assessment of damages in accordance with the reasons of the Court, including as to whether damages can be assessed by this Court or whether their assessment should be remitted to the District Court.

7. In his further submissions, Mr Hoblos adheres to the contention that this Court should assess damages. He accepts that the assessment will not include any award for non-economic loss or domestic assistance and that the assessment will be confined to past and future economic loss and out-of-pocket expenses.

8. The insurer shares the view that it would be preferable for this Court to assess damages. However, the insurer contends that, if Mr Hoblos seeks an award of damages that extends beyond the date of the trial, “the importance of [his] credibility may result in a new trial being inevitable”. That rather tentative assertion was not developed in the written submissions. The submissions did not identify any particular issue of fact concerning future damages that would require further evidence or a new trial. They did not engage with the concern expressed by White JA at [54] of the principal judgment (set out above), including his Honour’s reference to the requirements of s 126 of the Motor Accidents Compensation Act 1999 (NSW). Nor did they seek to refute Davies J’s and my view that the quantification of damages would turn primarily on the expert medical evidence.

9. I note in that context that the judge explained his conclusion as one based on an assessment of the medical evidence (at [161] of the primary judgment):

“The conclusion that I reach on the medical evidence is that it fails to make out the plaintiff's case. I am not satisfied on the balance of probabilities that the plaintiff suffers the disabilities of which he complains to the extent to which he complains of them. This alone may not always mean that the plaintiff fails. The reason the plaintiff fails here to make out any claim for damages arising from his injuries is because whilst he may in fact have some kind of injury and/or disability arising from the accident, the manner of presentation of the plaintiff, that is his inconsistencies and exaggerations and consequently his unreliability, makes it sheer speculation to determine how that sounds in monetary damages. I am unable to determine any such amount on any rational basis. Put simply, the plaintiff has failed to establish his claim to the necessary standard of proof.”

10. The position may accordingly be summarised as follows. Neither party seeks a new trial. Both agree that it would be preferable to avoid that course. It is clear that considerations of proportionality militate against it. The primary judge disbelieved Mr Hoblos and concluded that he had failed to discharge his onus of proof. We did not disturb his Honour’s findings as to credit but held that his Honour erred in his assessment of the medical evidence: at [11] (White JA); [166], [177] (my judgment, with which Davies J agreed). Our conclusion was based on the medical evidence, which did not overlook Mr Hoblos’s unreliability as a historian. At [177], I said:

“For the reasons I have given, I have concluded that the primary judge's conclusion was contrary to a compelling inference that Mr Hoblos did experience an episode of debilitating depression as a result of the motor vehicle accident. The medical evidence in support of that conclusion was not blind to Mr Hoblos's exaggeration and lack of credibility as a historian. In that circumstance, I should not shrink from giving effect to my own conclusion as to the evidence. I would accept Dr Lim's diagnosis of a Major Depressive Episode. His opinion was the most recent; was carefully reasoned and was based on the broadest range of information.”

11. No specific submission having been put by the insurer, the only potential impediment that has been identified to this Court’s proceeding to assess damages is the concern expressed by White JA, namely, whether it is possible for this Court to apply s 126 of the Motor Accidents Compensation Act in the absence of findings by the primary judge in a case where issues of credit arise. To be clear, this is not a question of power. This Court has all the powers and duties of the Court that heard the matter, including powers and duties concerning “the drawing of inferences and the making of findings of fact”: s 75A(6) of the Supreme Court Act 1970 (NSW). Rather, it is a question as to the proper scope of this Court’s role in a case in which further inferences and findings of fact need to be made concerning a party whom the trial judge disbelieved.

12. Section 126 provides:

126 Future economic loss – claimant’s prospects and adjustments

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

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

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

13. I accept (as of course I must) that the section prohibits the Court from making an award of damages for future economic loss unless Mr Hoblos satisfies the Court that the assumptions about future earning capacity or other events on which the award is to be based accord with his most likely future circumstances but for the injury. However, it does not follow from the primary judge’s disbelief of his evidence that Mr Hoblos is not entitled to any award of damages for future economic loss. The task of assessing damages under that head is complicated, not obviated, by the statutory requirement. The statute does not operate in a vacuum; it is brought to the common law, including the compensatory principle (discussed in the primary judgment at [63]-[66]).

14. To put the same point a different way, where a plaintiff has established liability, s 126 does not operate to deny any entitlement to compensatory damages unless they satisfy an onus of proof as to what would probably have been their circumstances in the future. The section assumes that, but for the accident, there would have been future circumstances of one kind or other and places the onus on the plaintiff to satisfy the court as to what are the most likely future circumstances. It does not follow from the fact that he was disbelieved by the trial judge that Mr Hoblos had no future, or that no future circumstances can be established on the evidence for the purpose of making assumptions as the basis for assessing future economic loss. It simply means that the task is rendered more difficult.

15. Accepting that the primary judge disbelieved Mr Hoblos, and that in accordance with the principles in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 we did not disturb his Honour’s credit findings on appeal, I do not think it is necessary to remit the matter to the District Court. I am not persuaded that this is a case in which further findings of fact are required to be made which will involve issues of credit. The issue of credit has been resolved by the primary judge; Mr Hoblos was not a credible witness. The task is to make findings as to future earning capacity in that forensic context. The medical evidence established that Mr Hoblos did experience an episode of debilitating depression as a result of the motor vehicle accident. The Court must do the best it can to assess the quantum of damages due as a result of that injury, paying due regard to the primary judge’s assessment of Mr Hoblos.

16. For those reasons, I remain of the view that this Court is in a position to assess damages on the basis of the medical evidence. Further, in the interests of convenience and proportionality, I consider that is the course this Court should take.

Basis on which damages are to be assessed

17. The motor vehicle accident occurred on 8 March 2015. It is common ground that the assessment of damages is to be undertaken as at 20 December 2019, the date of the judgment in the District Court.

18. The Court has found, based on an acceptance of the diagnosis of Dr Lim, that Mr Hoblos experienced an episode of debilitating depression as a result of the motor vehicle accident and that he is entitled to compensatory damages for the impairment of his capacity to work due to a major depressive illness. The principal task now is to determine the extent and duration of the impairment to working capacity caused by that disorder. Davies J and I accepted that the relevant period was from the date of the accident until “at least early 2018”: at [177] and [189] of the principal judgment. White JA at [48] substantially agreed with our assessment of the medical evidence and agreed that the preponderance of evidence favoured Dr Lim’s assessment of a major depressive disorder. His Honour considered that the evidence demonstrated that Mr Hoblos’s mental harm continued “at least to March 2019” and further noted that his presentation before the primary judge was consistent with his condition continuing even at the time of the trial: at [49].

19. At the time of the accident, Mr Hoblos was in stable employment as a bus driver employed by Redy2Go and was earning $1000 per week. For the purpose of s 126 the parties agree that, but for the accident, his net earnings would have been $1,000 per week to the date of trial and $1050 per week from the date of trial.

20. The parties addressed the issue of damages by reference to a number of key dates. Before the commencement of proceedings, the insurer paid Mr Hoblos’s medical and related expenses until February 2018, when a doctor retained jointly by both parties, Dr Smith, reported his opinion that Mr Hoblos was demonstrating “abnormal illness behaviour”. However, Mr Hoblos received psychiatric treatment for over 18 months after that opinion was reported. He saw his treating psychiatrist, Dr So, on 14 occasions from March 2018 until 1 October 2019.

21. During that period, on 29 April 2019, Mr Hoblos commenced employment with Datacom Connect Pty Ltd as a Customer Service Representative. He was intending to work for two days per week but often only worked for a few hours per week. His employment was terminated on 24 September 2019. Mr Hoblos claims that was due to his poor performance in the role (which he attributes to his depression). He was subsequently employed at a bakery on 24 October 2019 where he worked for nine hours per week and earned $15 an hour, receiving a total of $135 per week. He remained in that role at the time of the trial in mid-November 2019.

22. The dates that feature in the submissions are accordingly:

1. 8 March 2015 (the accident);

2. 27 February 2018 (Dr Smith discerned “abnormal illness behaviour”);

3. 29 April 2019 (Mr Hoblos commenced part-time employment);

4. 1 October 2019 (Mr Hoblos ceased his treatment with Dr So);

5. 20 December 2019 (judgment).

Other relevant facts and findings contended for

23. Despite the evidence of Dr Smith (who discerned abnormal illness behaviour in early February), the insurer accepts in light of this Court’s findings that Mr Hoblos remained partially incapacitated for work after that date. The insurer posited 1 October 2019 as the end date for any incapacity as that marked the cessation of Dr So’s treatment. The reason was explained in the insurer’s submissions in reply, where it was contended that Mr Hoblos’s claim for loss of earning capacity beyond that date “assumes that the treatment by Dr So from March 2018 to 1 October 2019 had little or no effect.” The insurer noted “that was not the finding of this Court”. But nor was there any finding that Mr Hoblos’s depressive illness suddenly resolved at some point during the last session with Dr So. It is inherently unlikely that it did and there is no basis in the evidence for such a finding. A course of psychiatric treatment is not like a course of antibiotics. With respect, the submission again overlooks the nature of the condition of depression which is amply described in the evidence. To the extent that the insurer’s submissions implicitly contend for a finding that Mr Hoblos’s depression was neatly resolved upon the conclusion of the last session with Dr So, I decline to make any such finding.

24. Further, and perhaps more importantly, I accept, as submitted by the insurer, that full effect must be given to the primary judge’s credit findings. As we have found, the fact that Mr Hoblos exaggerated his symptoms does not mean that he did not suffer from debilitating depression. But conversely, damages must be assessed on the basis that the fact that he suffered from depression does not mean that he did not exaggerate his symptoms.

25. The correct approach to the principle of compensation was recently summarised in the joint judgment of Bell, Gageler, Nettle, Gordon and Edelman JJ in Amaca Pty Ltd v Latz; Latz v AmacaPty Ltd (2018) 246 CLR 505; [2018] HCA 22 at [92] as follows (footnotes omitted):

“If a claimant suffers a negligently caused personal injury during their working life and, as a result of that injury, suffers a reduction in one or more of their income and their life expectancy, then, as explained by this Court in Todorovic v Waller, there is one objective – to award a sum of money that will, as nearly as possible, put the claimant in the same position as if they had not sustained the injury. Although the aim of the court in awarding damages is to make good to the claimant, so far as money can do, the loss suffered, it is impossible to assess damages by ‘a mere matter of mathematics’. The process must always be one of judgment, rather than calculation. And the burden lies on the claimant to prove the injury or loss for which they seek damages.”

26. In the present case, the Court must do the best it can to determine the combined effect of judge’s credit findings and the experts’ medical opinions and form a judgment as to a fair amount of compensation to put Mr Hoblos as nearly as possible in the same position as if he had not suffered a major depressive episode as a result of the accident.

27. Finally, it is necessary to address a submission put by Mr Hoblos based on s 136(6) of the Motor Accidents Compensation Act. Section 136 notes the duty of an injured person “to mitigate his or her damages” and requires the court, in assessing damages, to give consideration to the steps taken by the injured person to that end. Section 136(6) provides:

“If any dispute arises over an alleged failure by the injured person to mitigate his or her damages, the court is to give consideration to and take into account any evidence that an insurer failed to assist in mitigating damages.”

28. Mr Hoblos submitted that the insurer failed to assist in mitigating damages by failing to comply with its duty under s 84 of the Motor Accidents Compensation Act to do all things reasonable and necessary for the rehabilitation of an injured person. It was emphasised in the written submissions that compliance with s 84 is a condition of an insurer’s licence.

29. This issue was touched upon in the principal judgment at [191]-[192] where I noted, among other things, that it was not explained how any breach of that duty should feature in the determination of Mr Hoblos’s claim. The reliance now placed upon the alleged breach of duty is, as I apprehended, something of a rhetorical construct. The obligation in s 136(6) to consider the insurer’s conduct is enlivened only where “any dispute arises over an alleged failure by the injured person to mitigate his or her damages”. Unsurprisingly (having regard to its position at the trial), the insurer here has raised no such dispute. Had it done so, the occasion may have arisen to say more about the insurer’s “all or nothing” approach to Mr Hoblos’s claim. The decision not to accuse Mr Hoblos of failing to mitigate his loss was no doubt informed by an astute assessment of the downside of taking such an approach. In any event, the short point is that s 136(6) is not engaged.

Damages for past economic loss

30. Against those premises and principles, I turn to the particular heads of damage sought.

31. Mr Hoblos claims past economic loss based on the loss of his full earning capacity of $1,000 per week for the period of 216 weeks from 8 March 2015, the date of the accident, until 28 April 2019, the day before he commenced part-time employment. He accepts that, from 29 April 2019, the fact that he was working indicates some recovery in his earning capacity. For that period, he claims $750 per week for the period of 34 weeks to 20 December 2019. The total is $241,500 ($216,000 + $25,500).

32. The insurer contends that Mr Hoblos had a residual earning capacity after the accident of 50% but chose not to exercise it. It submitted that past economic loss should be allowed only for lost earning capacity of $500 per week and for a closed period up to 1 October 2019, when Mr Hoblos concluded his treatment with Dr So, the supposed milestone that marked Mr Hoblos’s achievement of complete recovery from his psychological condition. The insurer accordingly contends that Mr Hoblos should be awarded damages of $500 per week for the 238 weeks from 8 March 2015 until 1 October 2019, giving a total of $119,000.

33. In his report dated 1 August 2018, Dr Lim found that Mr Hoblos was prevented “from tolerating full-time work or study and from a role that was stressful” as a result of his depression. Mr Hoblos relied on the report to support a finding that his earning capacity was entirely depleted for a period after the accident. The insurer submitted that Mr Hoblos was not altogether incapacitated and that Dr Lim’s report left open the possibility that Mr Hoblos could undertake a role in clerical or administrative work, repetitive or process work, or part-time work in many other occupations.

34. To support the contention that Mr Hoblos had a residual earning capacity after the accident of 50%, the insurer relied on the wording of Dr Lim’s report, where the doctor said:

“Taking into account [Mr Hoblos’s] physical limitations, I am of the opinion that the contribution from his psychological symptoms in relation to his Major Depressive Episode would prevent him from tolerating full-time work or study and from a role that was stressful. (Emphasis added.)”

35. The insurer emphasised the fact that Dr Lim’s opinion had regard to the “physical limitations” whereas the primary judge rejected Mr Hoblos’s evidence concerning his physical complaints.

36. The submission did not (and could not) seek to unpick our conclusion that Mr Hoblos is entitled to compensatory damages for the impairment of his capacity to work due to a major depressive illness for some period from the date of the accident. Rather, the point appeared to be that, as Dr Lim’s opinion had regard to Mr Hoblos’s complaints of physical limitations and those complaints were rejected by the primary judge, this Court should in effect apportion Dr Lim’s opinion as between the physical and the psychological. It was submitted that the restriction identified by Dr Lim (that is, the impairment due only to the major depressive disorder and not to the disbelieved physical symptoms) would not amount to more than 50% impairment of pre-accident earning capacity. The insurer submitted that Mr Hoblos “could easily have earned one half of his pre-accident earnings” in a part-time, non-stressful role such as clerical or administrative work or repetitive or process work “had he been so inclined”.

37. The submission reflects persistence in a position adopted by the insurer at the trial upon which I commented in the principal judgment at [97], namely, one that, according to my assessment of the evidence, overlooks the debilitating impact of severe depression. To say that a person suffering from a major depressive disorder could easily get work if they were “so inclined” is to misunderstand the very nature of the condition.

38. I accept that, on a literal reading of Dr Lim’s report, the possibility of part-time employment in a less stressful role with reduced hours is acknowledged. However, I am not persuaded that there was any realistic prospect at any point leading up to the trial of Mr Hoblos earning 50% of his previous income. That figure appears to have been chosen arbitrarily. There was no reference made to any evidence which supported it. It is also in contrast with the evidence of Mr Hoblos’s former manager, Mr Millard, who gave a powerful account of how Mr Hoblos changed from being a good employee before the accident to one who could no longer fulfil his role after the accident.

39. I am satisfied that, as a result of his depression caused by the accident, Mr Hoblos effectively had no earning capacity from the date of the accident until he commenced part-time work at the end of April 2019. I would allow $1,000 per week for the period of 216 weeks from 8 March 2015 until 28 April 2019, as claimed by Mr Hoblos.

40. At the time Mr Hoblos commenced part-time employment, his intention was to work two days a week (out of five). He did not achieve that.

41. In his report dated 26 March 2019, Dr So stated that Mr Hoblos was “unfit to work for more than or equal to eight hours per week”. That was approximately one month before Mr Hoblos started at Datacom. Mr Hoblos earned less than $250 on average per week for his work at Datacom; about one quarter of his income before the accident.

42. On the other hand, some allowance must be made for the primary judge’s assessment of Mr Hoblos’s credibility. If, as the primary judge found, Mr Hoblos was exaggerating his symptoms to others, that is likely to have further impeded his motivation to fulfil his true working capacity.

43. The insurer submitted that the end-date for past economic loss should be 1 October 2019, when Mr Hoblos ceased treatment with Dr So. As already indicated, I reject that contention. There was no evidence to support it. The most contemporaneous evidence by Dr So on this issue was his report dated 26 March 2019 in which he stated that Mr Hoblos had only a “partial” response to treatment and was still suffering from depression and remained unfit for work. Furthermore, Dr Lim’s report recorded that Mr Hoblos had said he was unlikely to continue treatment due to funding being withdrawn by the insurer.

44. Doing the best I can, I consider that it is fair to compensate Mr Hoblos on the basis that, absent the histrionics described by the primary judge, he ought to have been able to work two days a week for the period of 34 weeks from 29 April 2019 to 20 December 2019. On that basis, I would allow 60% or $600 per week for that period giving a total of $20,400.

45. For those reasons, I would allow a total for past economic loss of $236,400 ($216,000 + $20,400).

Damages for future economic loss

46. As already explained, before any award of future economic loss can be allowed, Mr Hoblos must satisfy the court that the assumptions he proposes as the basis for the award accord with his most likely future circumstances but for the injury.

47. As already indicated, it is clear from Mr Millard’s evidence that Mr Hoblos was a good employee prior to the accident. Mr Millard also gave a compelling description of the change he saw in Mr Hoblos after the accident. There is no reason to conclude that, but for the accident, Mr Hoblos would not have continued to work productively for a considerable period. It is not as though he is making some far-fetched claim for likely promotion or re-education in a more lucrative field. His claim is premised on a continuation of the relatively humble position he occupied before the accident. The agreed future weekly rate of earnings of $1050 should be accepted.

48. I am not, however, persuaded that he would have continued to work until a retirement age of 67. The post-accident experience suggests some likelihood that other vicissitudes of life might at some point have resulted in his moving to part-time employment or leaving gainful employment altogether.

49. The more difficult task is to determine the extent, if any, to which Mr Hoblos’s earning capacity from 20 December 2019 and into the future has been reduced as a result of the accident and for how long. In order to make that determination, it is necessary to disentangle his accident-caused depression from the exaggeration found by the primary judge.

50. Consistently with the argument concerning the significance of the date on which Dr So stopped treating Mr Hoblos, the insurer contends that there is no future economic loss. The insurer further submits that, as a result of Mr Hoblos’s exaggerations and fabrications in relation to his injury, any assessment of its impact on his future earning capacity would entail too much uncertainty. I do not accept those submissions. It may certainly be accepted, in accordance with Dr Smith’s report, that by early 2018 Mr Hoblos’s dysfunctional presentation was becoming difficult to disentangle from his psychiatric condition. However, that does not obviate the requirement to make a finding on that issue.

51. Mr Hoblos claims damages for future economic loss on the basis that his average loss of residual earning capacity would be $550 per week for the 10 years following 20 December 2019 (the date of the District Court judgment). Mr Hoblos submitted that the normal discount for vicissitudes should not be applied to this rate (as it is reflected in the underlying allowance for loss of earning capacity) but there should be a multiplier discount of 5%. On that basis Mr Hoblos claimed a loss of $550 per week with a multiplier of 412, giving damages of $226,600 for those 10 years.

52. Conceding that his condition would improve over time with treatment, Mr Hoblos then submitted that, from 20 December 2029 until his retirement at age 67, his residual earning capacity would be slightly increased. For those remaining 16.25 years of his working life it was submitted that an award of $100,000 would be appropriate. That is equivalent to approximately $330 per week with a multiplier of 585, deferred by 10 years (0.614) and less 15% for vicissitudes. Accordingly, Mr Hoblos submitted that he should be awarded $326,600 in total for future economic loss.

53. The only expert evidence that explicitly addressed Mr Hoblos’s likely future circumstances was Dr Lim’s report in which he said:

“He reports little benefit from either psychotherapeutic support or medication. He himself has stated that it is likely that he will cease further treatment as a result of funding being ceased, I therefore feel that it is unlikely that his presentation will change significantly for the foreseeable future and can be considered to be permanent.”

54. However, the force of that opinion is undermined by the primary judge’s findings as to Mr Hoblos’s credibility. I am not persuaded that Mr Hoblos’s condition is permanent, nor that change (improvement) is unlikely. It may be noted that Dr Lim’s opinion on that issue is based on the assumption that Mr Hoblos will not undertake any further treatment. There is no reason to accept that assumption, especially knowing that Mr Hoblos is due to receive an allowance for future treatment in accordance with this judgment. Further, Mr Hoblos’s part-time employment since the accident demonstrates the prospect of ongoing improvement in his residual earning capacity.

55. Doing the best I can, I consider that a fair basis for assessing future economic loss is to assume that, from about the date of the trial for about 20 years, and taking account of the primary judge’s findings about exaggeration, Mr Hoblos had the capacity to work about three days per week, that is to say that his pre-accident working capacity was reduced by about 40% and that caused loss of about $420 per week for about 20 years.

56. The calculation of loss on those assumptions is $420 x 666.4 (5% weekly multiplier for 20 years) = $279,888.

Damages for superannuation

57. The parties agree that superannuation should be set at a rate of 11%, giving an amount of $56,791.68 for loss of superannuation on damages of $236,400 for past economic loss and $279,888 for future economic loss.

Damages for past medical treatment

58. Section 83(1) of the Motors Accidents Compensation Act imposes a duty on the insurer, once liability has been admitted (which occurred in this case), to pay certain medical and rehabilitation expenses on behalf of a claimant. The duty is qualified under s 83(2) so as to apply only to those payments which are reasonable and necessary in the circumstances and which relate to the injury caused by the accident.

59. Mr Hoblos has incurred expenses of $26,559.73 for past medical and rehabilitation expenses. The insurer has paid for $14,481.65 of those expenses. Mr Hoblos remains out-of-pocket for the balance of $12,078.08. He claims the whole of that amount. The insurer claims that, of the amounts paid, only amounts relating to psychological treatment (including Dr So) were reasonable and necessary. The amount conceded is $5,110.70 (of which $1.785.90 relates to Dr So’s treatment and the remaining $3,324.80 includes the cost of various psychological treatments).

60. Mr Hoblos contends that, in accordance with s 83, the insurer is liable for the entire amount of $26,559.73. The insurer contends that it is liable for only $5,110.70 (of which $1.785.90 relates to Dr So’s treatment and the remaining $3,324.80 includes the cost of various psychological treatments).

61. The insurer submitted “the balance of the amount paid by the insurer, which it may be inferred relates to physical symptoms for which the appellant sought treatment, ought not be included in the appellant’s damages, in light of the rejection by the primary judge of the claimed physical injuries, a finding not disturbed on appeal”.

62. I do not accept that submission. It does not follow, from the primary judge’s rejection of the physical symptoms the subject of the claim in the proceedings, that it was not reasonable and necessary for Mr Hoblos to seek investigation and treatment of the injuries he perceived or apprehended. The insurer has made no attempt in the submission to address the individual expenses claimed or to identify the broader costs of seeking psychiatric treatment (such as the need for referrals for a GP and medication). It is simply a blanket rejection of anything other than a small number of irrefutable claims. The amount of $12,078.08 claimed by Mr Hoblos should be allowed.

Damages for future medical treatment

63. The insurer is also liable to pay for future medical and rehabilitation expenses that are reasonable and necessary in the circumstances. In light of the primary judge’s findings and the findings of this Court, it must be accepted that such expenses are confined to the expense of treatment for Mr Hoblos’s mental health.

64. Mr Hoblos proposed an award of $25,000 in damages for future medical expenses. That figure was based on Dr So’s recommendation that Mr Hoblos engage over a period of two years in medical monitoring ($72.85 per session with Dr Sayed), pharmacological management ($5.40 per script of medication), psychological intervention ($124.50 per session with Dr Gergis) and multidisciplinary conferencing in conjunction with quarterly psychiatric consultations ($6,000). Mr Hoblos also relied on a recommendation by Ms Memon that he undertake a gym exercise program ($2,725) and a hydrotherapy program ($2,950). It is unclear how the sum of $25,000 was derived from those amounts and in any event some must clearly be excluded.

65. I accept that Dr So as Mr Hoblos’s treating psychiatrist was well placed to make recommendations as to his future treatment for mental health. The period of two years nominated by him seems conservative in the circumstances. I therefore consider the amounts nominated by Dr So to be reasonable.

66. While I accept it is reasonable and necessary that Mr Hoblos also follow Dr So’s recommendation of participating in future medical monitoring, pharmacological management and psychological intervention, details of the frequency of such treatment are absent from his report. Mr Hoblos has submitted the estimated cost of each session or dosage of these forms of treatment but, due to the uncertainty in the length and efficacy of the recovery process, has also failed to elaborate on how often they would be required. Given the expenses Mr Hoblos has incurred for similar treatments in the past I would assess $2000 as an appropriate sum to cover such expenses.

67. Ms Memon’s recommendation of a gym exercise program and a hydrotherapy program was made in her reports on 8 February 2017 and 11 May 2019. However, the Court did not disturb the primary judge’s finding that Ms Memon’s reports were largely based on Mr Hoblos’s self-reporting and were therefore of limited weight due to his lack of credibility.

68. It is now well understood that physical exercise is effective, perhaps even as effective as medication, in the treatment of mental health. However, that was not the basis for the claim in the present case. Accordingly, I will confine myself to the observation that insurers seeking to assist a claimant to mitigate loss in a case involving depression might appropriately consider meeting such costs.

69. In the circumstances of the present case, the proposed gym exercise program and hydrotherapy program cannot be regarded as reasonable and necessary. Accordingly, I would allow an amount of $8,000 for damages for future medical expenses.

Conclusion

70. The assessment of damages in accordance with these reasons is as follows:

Head of Damage	Award
Past economic loss	$236,400
Future economic loss	$279,888
Loss of superannuation	$56,791.68
Past treatment expenses	$26,559.73
Future treatment expenses	$8,000
Total	$607,639.41
Less out-of-pocket expenses paid by the insurer	$14,481.65
Judgment sum	$593,157.76

71. Accordingly, I propose the following orders:

1. that judgment be entered for the appellant in the sum of $593,157.76.

2. that, failing agreement as to costs, the parties provide written submissions as to costs within 7 days for determination on the papers.

72. DAVIES J: I have had the benefit of reading in draft the judgment of McCallum JA.  I agree with her Honour that this Court should assess the damages rather than ordering a re-trial.  I also agree with her Honour’s assessment of damages for the reasons her Honour gives, and with the orders proposed.

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Decision last updated: 10 February 2022