Kesser v West - [2021] VSC 621

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2020 02376

ALEKSANDRA KESSER (who sues by way of her litigation guardian Mikhail Kesser)	Plaintiff
v
STEPHEN ARTHUR WEST	Defendant

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20, 23 August 2021
DATE OF JUDGMENT:	28 September 2021
CASE MAY BE CITED AS:	Kesser v West
MEDIUM NEUTRAL CITATION:	[2021] VSC 621

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ASSESSMENT OF DAMAGES – Common law damages – Transport accident – Ongoing physical and psychiatric and/or psychological consequences of injuries – General damages for pain and suffering, loss of enjoyment of life – Special damages for loss of earning capacity – Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied – Victorian Stevedoring v Farlow [1963] VR 594 considered – Transport Accident Act 1986 (Vic) s 93.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J P Brett QC with B House of counsel	Henry Carus + Associates Lawyers
For the Defendant	C Blanden QC with J Clark of counsel	Transport Accident Commission

HER HONOUR:

Introduction

On 10 January 2018 the plaintiff, Aleksandra Kesser, was a pedestrian walking across the intersection of Orrong Road and Glen Eira Road when she was struck by a car. The car was making a right hand turn and failed to give way to the plaintiff as she crossed the road (‘the accident’). Liability has been admitted by the defendant, Stephen Arthur West, with no allegation of contributory negligence. The matter proceeded as an assessment of damages.

There is no dispute as to the nature and extent of the plaintiff’s physical injuries. The primary physical injury is a lateral tibial plateau fracture and fracture of the proximal head of the fibula on the right side, requiring surgery on her knee on 14 January 2018 for an open reduction and internal fixation of the lateral tibial plateau fracture and bone graft.

The defendant accepts that the plaintiff suffered a psychiatric injury as a result of the accident.[1] However, the first dispute is to what extent, if any, the plaintiff’s psychiatric injury is a new injury caused by the accident, and to what extent it is an aggravation of pre-existing psychiatric injuries.
[1]Transcript of Proceedings, Kesser v West (Supreme Court of Victoria, S ECI 2020 02376, Incerti J, 18-23 August 2021) (“T”) T242.18-19 (C Blandon QC).

The second dispute is in relation to the quantum of damages and in particular, what if any, allowance ought to be made for loss of earnings.

On the evidence before me I am satisfied on the balance of probability that the accident gave rise to a reasonably foreseeable and recognisable psychiatric injury in the context of a plaintiff who had suffered from psychiatric conditions in the past. The trauma she experienced in the accident has resulted in the development of Post-traumatic Stress Disorder (‘PTSD’), which is distinct from any previous mental health issues she had. I accept that the plaintiff suffered from some psychological…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kesser v West

Details

AGLC: Kesser v West [2021] VSC 621
Case: [2021] VSC 621
Decision Date: 28 September 2021

CaseChat Overview and Summary

Kesser v West is a case involving a plaintiff who sought damages for injuries sustained in a transport accident. The defendant was found to be liable for the accident. The dispute centred on the appropriate assessment of damages for the ongoing physical, psychiatric, and psychological consequences of the injuries, as well as damages for loss of earning capacity. The matter was heard in the Supreme Court of Victoria.

The central legal issues in this case concerned the principles and methodology for assessing general damages for pain and suffering, loss of enjoyment of life, and special damages for loss of earning capacity. The court was required to apply relevant case law, particularly Malec v J C Hutton Pty Ltd, and to consider the provisions of the Transport Accident Act 1986 (Vic). The court also needed to examine whether the damages claimed were reasonable and whether the defendant's liability was properly quantified.

The Supreme Court of Victoria addressed the assessment of damages by applying the principles established in Malec v J C Hutton Pty Ltd. The court considered the impact of the injuries on the plaintiff's physical and psychological health, as well as the loss of enjoyment of life. The court also evaluated the plaintiff's loss of earning capacity by assessing the extent to which the injuries affected his ability to work. The court held that the damages awarded should reflect the full extent of the plaintiff's injuries and their impact on his life. The court determined that the damages claimed were reasonable and just, taking into account the severity and permanence of the injuries. The Transport Accident Act 1986 (Vic) was also considered in the context of the damages awarded.

The final orders of the court included the award of general damages for pain and suffering, loss of enjoyment of life, and special damages for loss of earning capacity. The specific amounts awarded were determined based on the evidence presented and the court's assessment of the plaintiff's injuries and their impact on his life. The court also considered the principles of compensation and proportionality in reaching its decision.

Orders