Kesser v West

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 difficulties that were well managed before the accident, in particular an adjustment disorder with features of anxiety and depression, which were, and continue to be, very much exacerbated by the accident.

I consider the plaintiff is entitled to total damages of $693,000 comprised of $380,000 for pain and suffering and $313,000 for past and future economic loss. I also award a 5% allowance for fund management costs.

Factual background

The following matters were largely undisputed at the conclusion of the evidence.

The plaintiff was born on 31 January 1965 in the Ukraine within the former USSR. She is the daughter of holocaust survivors.

She attended eight years of schooling and completed the equivalent of year 10, before undertaking tertiary studies in shoemaking. She married at 17 years of age in 1982. She met her husband, Mikhail Kesser, through her brother, who had served with him in the USSR army. He worked as a shoemaker. She gave birth to her first child, Arthur, in 1983. He was born almost two months premature.

The family fled the USSR as refugees via Italy in 1989. They did not receive any government benefits while waiting in Italy, and were entirely dependent on money from friends.

The family arrived in Melbourne in around 1990. The plaintiff did not speak any English at the time. Her husband obtained work as a leather cutter in a factory in Prahran within weeks of arriving in Melbourne, working long hours, while she stayed home caring for her son. The plaintiff studied English at Myer House. In 1993 she gave birth to her second child, Eva. During that pregnancy the plaintiff was mistakenly told that her daughter had Down syndrome which was very distressing for the plaintiff.

In her first few years in Melbourne the plaintiff’s eldest brother passed away in the USSR. She was unable to return to the USSR to support her parents and family, which she found distressing.

In 1995 she supported her parents, who were both in poor physical health, to migrate to Australia. She became their full-time carer, whilst also caring for her two children.

At some stage the plaintiff obtained a Certificate III in Aged Care and began working casually or part-time for Blue Star, caring for elderly people in their own homes. She worked up to 15 hours a week. During this time she also received Centrelink benefits.

The plaintiff volunteered as a carer for the former Chief Rabbi Groner at Yeshiva, who was recovering from surgery and living with ongoing health issues. She spent approximately two hours a day with him. She continued doing so for approximately 12 to 14 years until he passed away in 2008. Her friendship with the rabbi and his wife led the plaintiff to become more religiously observant, including attending synagogue and shiurim study sessions on the Torah.

The plaintiff’s remaining brother died in 2008. At some stage after this, she decided to stop working in aged care because of the psychological impacts of her brothers’ early deaths and the stress of caring for her parents at home and elderly patients at work. In about 2009 she obtained a Certificate III in child care and began working casually at various Jewish crèches.

The plaintiff’s father passed away in 2011. She also underwent a hysterectomy that year.

In approximately April 2015 the plaintiff was diagnosed with breast cancer. She underwent a mastectomy of her right breast, chemotherapy and radiotherapy. In July 2016 she had a left breast mastectomy and breast reconstruction.

Together with her friend Adelia Gringruz the plaintiff travelled to the United States of America at some stage in 2015-16 and to Queensland in 2016.

The plaintiff’s mother passed away in 2016.

Her cancer was considered to be in remission by early 2017. At that time she decided to return to the workforce. Her children had both moved out of home, her daughter having married in 2015. Her relationship with her husband had been under a lot of pressure, and the two had periods of separation and reconciliation. Between March and August 2017 she volunteered intermittently at an accountancy firm, BT Corporate Advisory Pty Ltd (‘BT Corporate Advisory’) for Boris Feldman, a friend of her husband, to gain skills in bookkeeping.

In approximately November 2017 the plaintiff travelled with her daughter, her son-in-law and their child to Tel Aviv, Israel, where they stayed for approximately a month. She had been to Israel before, having travelled there in 2012.

Upon returning to Melbourne, her husband helped her to find a job with Dr Asher Dabakarov at Asher Dental Laboratory as a full-time bookkeeper. She signed a letter of employment offer, and was due to commence on 15 January 2018.

Prior to the accident the plaintiff suffered from periods of depression and anxiety. The precise nature and presentation of her pre-existing illness was in dispute at trial. My findings on the evidence are discussed below.

On the evening of 10 January 2018 the plaintiff was crossing the intersection of Orrong and Glen Eira roads on a green pedestrian light when she was struck in the right leg by the car driven by the defendant. The plaintiff fell to the road, although she does not recall hitting her head or losing consciousness. Police attended and she was taken to the Alfred Hospital by ambulance, where she was admitted as an inpatient. She presented with pain and swelling to her right knee. She also sustained superficial grazes and bruising to her left elbow, and to a lesser extent her right elbow, right shoulder and right ankle, and knuckles.

The plaintiff was diagnosed with a lateral tibial plateau fracture and fracture of the proximal head of the fibula on the right side. She underwent surgery on her knee on 14 January 2018 for an open reduction and internal fixation of the lateral tibial plateau fracture and bone graft. She was discharged from the Alfred Hospital on 17 January 2018 in a wheelchair. The plaintiff remained wheelchair bound for the next three and half to four months. In this period her husband stayed with her in her home and provided her with support and care in most aspects of daily living.

In June 2018 the plaintiff was able to attend her son’s wedding in Sydney but was reliant on a walking stick and painkillers.

On 30 January 2019 the plaintiff attended on Mr Andrew Tang, an orthopaedic surgeon, who advised that she undergo a total knee replacement. In March that year she consulted Mr Derek Carr, orthopaedic surgeon, complaining of ongoing medial and lateral knee pain. Mr Carr recommended surgery to remove the anterolateral tibial plateau plates, screws and wires. The plaintiff underwent this further surgery on her knee on 4 June 2019.

In July 2019 the plaintiff travelled to Israel for approximately 10 days to attend the wedding of her close friend’s son. She used a wheelchair at the airport and was reliant on painkillers throughout the trip.

The plaintiff’s children no longer live at home with her. She is separated from her husband although maintains a close relationship with him. He works from an office in her house, but primarily lives with his parents. Occasionally he stays the night at her house, in a separate bedroom.

The plaintiff made a claim for and began receiving impairment benefits from the Transport Accident Commission (‘TAC’). Her application for loss of earnings benefits was initially rejected. The plaintiff applied to VCAT to review the TAC’s determination of 27 February 2019. On 23 July 2019 the TAC and the plaintiff reached a settlement, with the TAC agreeing to pay loss of earnings benefits to the plaintiff based on pre-accident earnings of $985.29 gross per week.

On or about 6 September 2019 the TAC granted the plaintiff a serious injury certificate pursuant to s 93 of the Transport Accident Act 1986 (Vic).

In December 2019 the TAC paid the plaintiff an amount for loss of earning capacity.

The issues in dispute

The issues in dispute had narrowed by the time the matter came on for trial. The defendant’s counsel, Mr Blanden QC, indicated that the nature, extent and consequences of the plaintiff’s physical injuries were not in dispute. The defendant also accepted that the plaintiff had suffered psychiatric symptoms as a result of the collision. However, the characterisation of the plaintiff’s psychiatric injury remained in dispute. The main issues at trial were:

(a) was the psychiatric injury suffered by plaintiff as a result of the collision an aggravation of a pre-existing injury or a discrete injury, and what was the nature and extent of that injury; and

(b) what was the plaintiff’s earning capacity at the time of the collision? And how should she be compensated for past and future loss of earning capacity?

The evidence
The trial and witnesses

The trial commenced before me on 18 August 2021 and was conducted remotely pursuant to s 42E(1) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) as Melbourne was subject to lockdown in response to the COVID-19 pandemic. The following witnesses gave viva voce evidence for the plaintiff:

(a) Mrs Aleksandra Kesser, the plaintiff;

(b) Mrs Adelia Gringruz, the plaintiff’s friend;

(c) Mr Mikhail Kesser, the plaintiff’s husband;

(d) Dr Yetta Krinsky, the plaintiff’s treating psychiatrist from 2008 to 2021;

(e) Dr Anna Velkov, the plaintiff’s treating general practitioner from 2014 to date;

(f) Mr Boris Feldman, lay witness, managing director of BT Corporate Advisory; and

(g) Mr Michael Constable, the plaintiff’s solicitor.

The defendant did not call any witnesses.

The plaintiff’s credibility and reliability

It is necessary to say something about the plaintiff as a witness in light of the defendant’s comments in closing submissions which mounted an attack on her reliability. It was conceded that the plaintiff was a witness of credit but submitted that her evidence was unreliable. The defendant submitted that generally the plaintiff’s responses to questions in cross-examination were not ‘fulsome or forthcoming’.[2] It was submitted that the plaintiff was defensive and that globally the plaintiff adopted a position of responding in cross-examination by saying, ‘I don’t remember’. The defendant submits that the plaintiff’s repeated response of, ‘I don’t remember’ was not necessarily reflective of her true level of memory.[3]
[2]T244.11.
[3]T245.07-11.

It was conceded by the plaintiff’s counsel that the plaintiff failed to remember many things and that she had difficulty recalling dates and sequences. However, it was submitted her difficulties recalling information were for the following reasons:

(a) the plaintiff is currently on medication. In the course of her evidence the plaintiff produced her pills on screen from a bag and gestured to them, indicating that this was why she could not recollect events. She stated that she was ‘so drugged up that she couldn’t think clearly’;[4]
[4]T263.17.

(b) she gave evidence under considerable difficulties including the fact that she was giving evidence remotely by WebEx;

(c) the plaintiff has a litigation guardian and has impairments identified by consultant and clinical neuropsychologist, Dr Nathaniel Popp, including a severe and generalised decline in her overall intellectual function; [5] and

(d) the plaintiff gave evidence through two different interpreters.

[5]Exhibit P20 – Report of Dr Nathaniel Popp dated 1 February 2021, [125].

I agree that, on some issues, the plaintiff was unreliable. However, I consider that this was not due to untruthfulness, but rather to poor memory, confusion caused by her cognitive dysfunction, and the stress of giving evidence. The plaintiff had difficulty recalling, in particular, her prior psychiatric history and the treatment she received in a clear and coherent sequence. I note that many of the questions referred to matters that occurred over a decade ago.

In assessing the plaintiff’s credit and reliability, I have taken the following matters into consideration:

(a) she gave evidence through two different Russian interpreters;

(b) she was cross-examined over more than a day about her life, including her illnesses, traversing many years. This examination involved events as far back as 2008 when she first saw her treating psychiatrist, Dr Yetta Krinsky in relation to her symptoms of depression and anxiety;

(c) she suffers from cognitive deficits impacting on her memory, concentration, problem solving and cognitive flexibility;[6] and

(d) her evidence in relation to her psychiatric and psychological conditions were corroborated by her husband, her treating general practitioner prior to the accident and after the accident, and her treating psychiatrist prior to and after the accident. The plaintiff’s husband and a friend also gave evidence as to her cognitive decline.

[6]Exhibit P20 – Report of Dr Nathaniel Popp dated 1 February 2021, [125].

When I consider all these matters together, despite the fact that the plaintiff was at times unresponsive or unreliable, I am satisfied that she was a witness of truth on the subject of her psychiatric conditions and answered to the best of her ability in the circumstances.

Evidence in relation to psychiatric injuries

It was not disputed that the plaintiff had a pre-existing psychiatric injury or injuries. Nor was the plaintiff’s post-accident psychiatric presentation contested. However, the nature and extent of her pre-existing injuries, and their impact, if any, on her current and predicted future state was in issue.

The plaintiff led evidence from her psychiatrist, Dr Yetta Krinsky, who treated her between 2008 and February 2021, and her treating general practitioner, Dr Anna Velkov, who she started seeing in February 2014 and continues to treat her. Mr Kesser, and the plaintiff’s friend, Mrs Adelia Gringruz, also gave evidence about the plaintiff’s presentation before and after the accident.

The plaintiff tendered two reports by consultant and clinical neuropsychologist, Dr Popp. The defendant did not seek to have him cross examined. The plaintiff also relied on materials tendered by the defendant, including the report of independent medical examiner, psychiatrist Dr Justin Lewis, and the treatment notes of the St Kilda South Medical Clinic, which include notes from Dr Velkov, Dr Vasily Lededev, another general practitioner, and Mr Boris Goloub, psychologist.

The evidence indicates that from at least 2008 the plaintiff presented for psychological and psychiatric care during ‘episodes of reactive anxiety and depression in response to stress’.[7]
[7]Exhibit D2 – Report of Dr Justin Lewis dated 20 November 2020, 8 [70].

Dr Krinsky first treated the plaintiff for a couple of months in 2008 and provided supportive psychotherapy regarding difficulties in the plaintiff’s relationship with her brother. No formal diagnosis was made or medication prescribed at that time.

Dr Krinsky reported that the plaintiff was treated for depression and anxiety between 2010 and 2012 in response to her complex family situation, and that she ‘responded well to a low dose of antidepressant medication and supportive psychotherapy.’[8] Within this period, the plaintiff commenced taking a ‘lowish dose’[9] of Lexapro and progressed from regular sessions in mid-2010 to less frequent appointments in 2011. During a seven month break between sessions she ceased taking medication. In July 2012 she sought further assistance, and was prescribed Moclobemide.
[8]Exhibit P3 – Report of Dr Yetta Krinksy dated 28 November 2019, 3.
[9]T174.01.

There was no evidence that the plaintiff experienced any symptoms of anxiety and depression again until after her cancer diagnosis in April 2015. She later reported to Dr Krinksy that she had ceased taking antidepressants at some stage in 2014.

Dr Velkov’s treatment records indicate that on 12 October 2015 the plaintiff attended the clinic in relation to her mental health. The treatment notes record that the plaintiff was, ‘[a]nxious, depressed, unable to sit still, tearful [sic], no suicidal thoughts or plans, no plans to harm any others’.[10] The reason for the consultation was recorded as: ‘Depression, Adjustment disorder with depressed mood, hot flushes, hay fever’. Under ‘History’ Dr Velkov recorded ‘Anxiety, Depression, gradually increasing’.[11] Under the heading of ‘Plan’ Dr Velkov recorded, ‘Psychotherapy. Medication’, although under ‘Actions’ no prescription for an antidepressant is recorded.
[10]Exhibit D3 – Various progress notes from St Kilda South Medical Clinic, 35.
[11]Ibid.

Dr Velkov confirmed in viva voce evidence that the plaintiff was diagnosed with an adjustment disorder at some stage after her cancer diagnosis. On referral from Dr Velkov the plaintiff attended two appointments with psychologist, Mr Boris Goloub in October 2015, and four appointments with Dr Krinksy between late 2015 and early 2016. Both Dr Velkov and Dr Krinsky stated that an adjustment disorder diagnosis was very common in patients with breast cancer, and there was a reasonable expectation that such a disorder would improve over time. It was Dr Krinsky’s clinical assessment that antidepressant medication was not indicated for the plaintiff’s adjustment disorder at that time.

The plaintiff did not lead evidence from Mr Goloub, and the treatment notes show no entries for sessions with Mr Goloub again until after the accident.

In March 2016, at her last appointment with the plaintiff prior to the accident, Dr Krinksy concluded the plaintiff was doing better. She was of the view that when she last saw the plaintiff her mental health condition had ‘settled’ and she was not in need of psychiatric treatment.[12] Prior to the accident, Dr Velkov’s last appointment with the plaintiff in which she raised mental health issues was in May 2016, although she continued to see the plaintiff in relation to physical health issues. It was Dr Velkov’s view that the plaintiff had successfully recovered and that she was in ongoing remission for both the physical and mental aspects of her cancer by the time of the accident.
[12]Exhibit P3 – Report of Dr Yetta Krinksy dated 28 November 2019, 4.

Mr Kesser characterised his wife as a ‘soft person who takes many things very close [sic]’.[13] He described how during her cancer treatment, ‘she was up and down’ in terms of her mood.[14] However, he also gave evidence that through the cancer treatment and recovery, she was ‘very strong and look[ed] forward.’[15] He noted:

I see a person who wanna live, who wanna help, especially with what just manage (indistinct) youngest daughter, and she got a vision to try to quickly recover and just be on the feet; to help your daughter, is got help to future grandkids and so on.[16]

[13]T138.28-30.

[14]T140.06-07.

[15]T140.16-17.

[16]T210.09-19.

The defendant’s independent psychiatrist expert Dr Lewis considered that the plaintiff’s treatment records and self-reported history were consistent with a chronic adjustment disorder with mixed anxiety and depressive symptoms. He described the adjustment disorder as ‘long-standing and in response to multiple pre-existing non-transport related stressors including the challenges of migration, a complex family situation, death of her older siblings and breast cancer diagnosis and treatment’ and ‘partially remitted at the time of the transport accident.’[17] A similar view is also reflected in the reports of Dr Popp who assessed the plaintiff on 4 March 2019 and again on 1 February 2021 and was satisfied that the plaintiff had ‘chronic anxiety and a depressive condition that was well managed at the time of the accident.’[18]
[17]Exhibit D2 – Report of Dr Justin Lewis dated 20 November 2020, 9 [79].
[18]Exhibit P20 – Report of Dr Nathaniel Popp dated 1 February 2021, 41 [134].

The plaintiff’s presentation in 2016 and 2017 was in dispute. Counsel for the defendant put to the plaintiff that she continued to see psychologist Mr Goloub in 2016 and 2017. The plaintiff said, ‘could be, I do not remember.’[19] There were no records of any such consultations in the treatment notes, despite there being records of Mr Goloub’s two sessions with the plaintiff in 2015, and subsequent sessions in 2018 and onwards.
[19]T77.03.

In cross-examination, the defendant suggested that the plaintiff was exhibiting symptoms which were not settled or well managed in the months leading up to the accident. Counsel for the defence took witnesses to the treatment notes of Dr Vasily Lebedev from his consultation with the plaintiff on 8 August 2017. Dr Lebedev is not the plaintiff’s regular GP. The 8 August 2017 notes record the following:

Tuesday August 8 2017 19:30:15
Dr. Vasily Lebedev
Visit type:
Surgery Consultation
Reason for contact:
Adjustment Disorder
Actions:
Letter Created – re. To whom it may concern 1 to .
Letter Printed – re. To whom it may concern 1 to .
Letter Edited – re. To whom it may concern 1 to Dr. Vasily Lebedev.
Letter Printed – re. To whom it may concern 1 to Dr. Vasily Lebedev.
History:
Anxiety, Depression gradually increasing. Unable to sleep. Condition affects all psychosocial aspects of her life.
Examination:
Anxious, depressed, agitated.
Plan:
Stress reduction techniques
Relaxation
Rest
Psychology.
Medication:
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~[20]

[20]Exhibit D3 – Various progress notes from St Kilda South Medical Clinic, 10.

Dr Velkov accepted, when Dr Lebedev’s record was put to her, that the plaintiff presented with this complaint on that date. She also accepted in cross-examination that the treatment notes record a plan for ‘medication’. In re-examination Dr Velkov confirmed that she was not present for that consultation. She was asked whether she could say based on the notes what diagnosis was made on the day, and whether she could conclude that Dr Lebedev had indicated that the plaintiff required prescription medication. It was Dr Velkov’s view that the plaintiff had been diagnosed only with an adjustment disorder, and that she could not necessarily say if medication was deemed necessary at the time.

In re-examination Dr Velkov was asked if the entry under ‘History’ was the same or substantially the same as history entered into the clinic notes by her on 29 November 2015. She agreed they seemed similar. She agreed that there was a means to copy clinic records for later attendances in the form of ‘shortcuts which saves us time if it’s similar presentation or exactly the same presentation’.[21]
[21]T188.22-23.

The notes indicate that, on the following day, 9 August 2017, the plaintiff attended another consultation with Dr Lebedev for her adjustment disorder. The notes do not indicate what steps were taken, other than a letter/s was created and printed. It also notes ‘Cancer survivor’.

The plaintiff’s next clinic attendance with Dr Velkov was on 27 August 2017 in relation to her physical health. There are no further references to her mental health until consultations after her accident. It was Dr Velkov’s evidence that she had seen the plaintiff ‘very frequently’,[22] on approximately 18 occasions, in 2017 and that had the plaintiff complained of any psychiatric symptoms during that time, she would have made a note of it. The plaintiff had attended the clinic two days prior to seeing Dr Lebedev and met with Dr Velkov about her hypertension. There was no reference in Dr Velkov’s notes from 6 August 2017 about any mental health complaints or concerns. Dr Velkov was of the view that the absence of such complaints in her notes from 2017 was indicative of the plaintiff having ‘improved significantly’.[23]
[22]T190.16.
[23]T190.22.

When put to her in cross-examination Dr Krinsky stated that she had no context for the 8 August 2017 visit to Dr Lebedev as she was not treating the plaintiff at the time. She noted that had the plaintiff wanted to be referred back to her at the time, she could have. She maintained her position that prior to the accident the plaintiff had been ‘functioning well’[24] and that her mental health had settled.
[24]Exhibit P3 – Report of Dr Yetta Krinksy dated 28 November 2019, 3.

After the accident the plaintiff reported psychiatric symptoms, including nightmares, and flashbacks of the accident, poor sleep and restlessness, anxiety, panic attacks, fear of crossing the road, leaving the house, driving and being a passenger in a car, and preoccupation with the accident.

Her treaters[25] agreed that the plaintiff suffers from PTSD with a guarded or poor long term prognosis, and would not be able to return to the workforce. Dr Krinsky was of the view that she also suffers from major depression. The medico-legal expert assessments coalesced with that of her treaters. Associate Professor Nick Paoletti, psychiatrist, who was engaged by the plaintiff to conduct an independent medico-legal examination as part of the serious injury determination process which occurred on 12 March 2019, concluded that she suffered from unspecified anxiety disorder with features of PTSD, and unspecified depressive disorder. The defendant’s expert, Dr Lewis, assessed the plaintiff on 20 November 2020 as suffering from PTSD and a secondary major depressive disorder. Both considered her prognosis to be guarded and that she was incapacitated for work. Dr Popp examined the plaintiff on 4 March 2019 and again on 1 February 2021 and concluded that she had a static PTSD with severe depression and generalised anxiety disorder, with a poor prognosis.
[25]Except for Mr Goloub who did not prepare a report or give evidence.

Dr Popp also concluded that the plaintiff had a severe and generalised decline in her cognitive, emotional and behavioural function since the accident including memory, concentration, and emotional sensitivity. He characterised her cognitive and neuropsychological effects as profound and was of the view that they were a consequence of her psychiatric injuries from the accident, there being no evidence that the plaintiff sustained a concussion or acquired brain injury as a result of the accident. He reported no meaningful improvement since he first saw her in March 2019.

Significantly, Dr Popp was concerned that the plaintiff risked developing longer-term cognitive dysfunction which would continue regardless of her psychiatric condition, stating:

should her psychological difficulties persist for a protracted period, secondary alterations in brain function may occur and produce core cognitive dysfunction. Such dysfunction would be present independent of her psychiatric condition. Should this occur, her difficulties may very much worsen.[26]

[26]Exhibit P20 – Report of Dr Nathaniel Popp dated 1 February 2021, 41 [137].

Dr Popp’s findings were not contested.

In terms of her treatment, the plaintiff was referred back to Dr Krinsky on 11 March 2018. She attended approximately 18 appointments in 2018, eight appointments in 2019, and six in 2020, before their final session on 7 February 2021. She prescribed a medium ‘maintenance dose’ of 100mg Sertraline.[27] Dr Krinksy disagreed that the plaintiff’s need for psychiatric intervention diminished over time. It was her view that the plaintiff’s presentation was less acute than it was in March 2018, but noted that it fluctuated with intensifications in her pain. In September 2020 Dr Krinsky assessed the plaintiff as requiring 12 to 18 months of ongoing psychiatric review, and has referred the plaintiff back to her general practitioner for referral to a new psychiatrist as Dr Krinksy had reduced her patient-load.
[27]T166.09.

The plaintiff was referred back to Mr Goloub on 20 April 2018 and continued to see him throughout 2018, 2019 and 2020. As noted above, Mr Goloub did not give evidence.

The dispute at trial turned on whether the plaintiff’s psychiatric diagnoses reflected an aggravation of her existing condition, or were distinct injuries arising from the accident.

The medico-legal experts agree that the plaintiff had some vulnerability prior to the accident, but that she nevertheless developed a distinct injury as a consequence of the accident. Dr Popp considered that the plaintiff’s pre-existing psychiatric injuries ‘certainly increased her vulnerability towards decompensation.’[28] He noted that the accident trauma ‘blended with her previous trauma, resulting in the development of a PTSD condition that is distinct from her previous condition.’[29] Her chronic stress and poor psychological containment were present before the accident but, in his view, were ‘very much exacerbated’ by the accident.[30]
[28]Exhibit P20 – Report of Dr Nathaniel Popp dated 1 February 2021, 41 [134].
[29]Exhibit P20 – Report of Dr Nathaniel Popp dated 1 February 2021, 41 [134].
[30]Ibid, 39 [126].

Dr Lewis considered that the plaintiff’s PTSD was ‘directly related’ to the accident, and that her adjustment disorder was partially remitted at the time of the accident. Associate Professor Paoletti, in his report, evaluated the causal link between the accident and the plaintiff’s contemporaneous psychiatric state, concluding that the accident was a ‘significant contributing factor’.[31] Associate Professor Paoletti attributed a quarter of the plaintiff’s psychiatric impairment to the ‘residual effects from past events with partial recovery’ and the remaining three quarters to the ‘currently more salient effects of the motor vehicle accident’.[32]
[31]Exhibit P18 – Report of Associate Professor Nicholas Paoletti dated 12 March 2019, 11.
[32]Ibid.

The plaintiff, her treating doctors, as well as the people closest to her, attested to the stark comparison between her mental health before and after the accident. The plaintiff reported to Dr Lewis that she was ‘not the person I used to be’.[33] In evidence she stated that the defendant had ‘destroyed’ her.[34] ‘What I was before I’m not now’, she said.[35] She described her mental state now as worse than after her cancer diagnosis, noting her tendency to become impatient, nervous, to cry without a particular reason, and to forget things.
[33]Exhibit D2 – Report of Dr Justin Lewis dated 20 November 2020, 4 [12].
[34]T41.04.
[35]T41.07.

The plaintiff’s husband noted that the accident ‘devastated’[36] the plaintiff and although she had been through difficulties before, ‘after [the] accident it bec[a]me much worse.’[37] Her close and longstanding friend, Mrs Gringruz, gave evidence that the plaintiff had changed from being ‘happy, outgoing, loud, nice to be with’,[38] to ‘moody and irritable’.[39]
[36]T219.16.
[37]T219.22-23.
[38]T128.01-02.
[39]T129.12-14.

It was Dr Krinsky’s view that the plaintiff was not particularly vulnerable to the sort of reaction she ultimately had to her accident, because of her pre-existing mental illness. She opined:

I’ve always felt she’s been quite a resilient person. Although there’s a history of intergenerational trauma in the family and there have been significant issues, she’s always someone who’s maintained a lot of friendships, a very kind person, has been involved in a lot of community activities, has had very strong spiritual beliefs which have supported her, and I found her usually very optimistic, and I felt that really she’d made a good recovery from the times that I’d seen her. And, even after the cancer diagnosis, from what she was telling me, that even after that she’d been able to go back and do some retraining in, I think bookkeeping, and began early stages of starting to return to work. So, really I’ve considered her fairly resilient and I thought that the extreme nature of the trauma, like, she was just crossing a road walking happily, not experiencing anything, doing the right thing and something coming in that way that so disrupted her life would in most people cause extreme distress. … And I think the resilience factors, the protective factors in her case which were community and being involved and being out and attending spiritual things, although of course now with COVID that’s not possible anyway, but those all would have been very, very protective things and as a result of her disability from the accident, the physical disability, she couldn’t engage in the things that may well have protected her emotionally more, so I do believe that it was a consequence of the context of the trauma, the trauma itself both physically and psychologically.[40]
[40]T164.09-T165.08.

Findings in relation to psychiatric injuries

There is no doubt on the evidence that the plaintiff suffered a psychiatric reaction to the accident, and the defendant accepts as much.[41] However, the defendant submits that I should characterise her post-accident condition as an aggravation of a longstanding adjustment disorder and not as a distinct or new injury. The defendant relies on the similarities of symptoms reported by the plaintiff to her treaters before and after the accident – anxiety, depression, agitation, panic attacks, poor sleep, loss of concentration, and nightmares, albeit with different subject matter.
[41]T242.17-19.

Counsel for the plaintiff invited me to see the plaintiff not as a woman with a long psychiatric history, but one who had had a hard life, of refugeehood and migration, difficulties in childbirth as a young mother, the early deaths of her two brothers, caring for her elderly parents and raising her children, and breast cancer. In the view of her treaters, family and friends she had been highly resilient in the face of such life events, and recovered from each episode.

Under robust cross-examination Dr Krinsky was clear that the plaintiff’s resilience, optimism and support networks had helped her work through periods of crisis. The plaintiff’s husband spoke of her ability to be strong and look forward during her cancer recovery. They both distinguished these traits in the plaintiff to her attitude and outlook after the accident.

Counsel for the defendant made much of the treatment notes of Dr Lebedev of 8 August 2017, suggesting that they demonstrated that her adjustment disorder was symptomatic only months before the accident. I do not place great weight on this entry, noting that it is very similar to a November 2015 entry by Dr Velkov, and noting Dr Velkov’s evidence of the clinic’s practice of using shortcuts. At most, the 2017 notes suggest the plaintiff attended two consultations in relation to her adjustment disorder. I do not accept that the records indicate that she was prescribed medication on either occasion. On my reading of the document it is not clear to me that the reference to ‘Medication:’ is an entry under the heading ‘Plan:’ as was suggested by counsel for the defendant, and not a fresh heading against which there is no entry.

Relying on Jones v Dunkel,[42] the defendant asks that I draw an adverse inference from the plaintiff’s failure to obtain a treater’s report from Mr Goloub and call him as a witness.[43] Counsel for the defendant noted the plaintiff’s evidence that she was specifically referred to Mr Goloub because he was a Russian speaker, and noted that he treated her both before and extensively after the accident.
[42](1959) 101 CLR 298.
[43]T277.25-T278.11 (C Blandon QC).

Counsel for the plaintiff submitted that, the failure to call Mr Goloub was not unexplained. The plaintiff’s solicitor, Mr Michael Constable, gave viva voce evidence the he did not obtain a treater’s report from Mr Goloub. He noted that the parties had a copy of Mr Goloub’s clinical notes, the report prepared for the purposes of the guardianship application to VCAT, and the reports of the plaintiff’s treating psychiatrist and general practitioner, which he considered to be ‘fairly comprehensive’.[44] It was also submitted that there was no evidence to support the defendant’s suggestion, put to the plaintiff in cross-examination, that she had seen Mr Goloub throughout 2016 and 2017. The St Kilda South Medical Clinic treatment notes had no record of such consultations at that time. It was the plaintiff’s position that it was not possible to discern what Mr Goloub’s evidence would have been in a way that would be adverse to the plaintiff, given what he says was the ‘pretty unchallenged’ psychiatric evidence.[45]
[44]T228.29-T229.02; T229.26-31 (J P Brett QC).
[45]T279.17 (J P Brett QC).

I do not make an adverse inference that Mr Goloub’s evidence, if led, would not have been helpful to the plaintiff. There is force to the plaintiff’s submission that it is unclear what the precise nature of the adverse inference would be. It is a highly speculative exercise to guess at what Mr Goloub might have said, whether he might have, for instance, attested to conducting additional appointments with the plaintiff in 2016/17 not otherwise in his treatment notes, to forming a different view of the plaintiff’s presentation, her self-reports, or to coming to a different diagnosis. Given the wealth of other material from her treaters, including Mr Goloub’s own treatment notes, it is difficult to surmise what could be made of any such evidence regardless.

More broadly, I accept, and it was not in dispute, that the plaintiff suffered PTSD as a result of the accident. I accept that the PTSD is sufficiently severe to incapacitate her for future employment, and to have profoundly impacted her cognitive and neuropsychological functioning.

The evidentiary burden of disentangling the psychiatric injury the plaintiff suffered as a result of the accident and her underlying and pre-existing condition falls to the defendant. Having regard to the evidence of the plaintiff’s treating doctors and medico-legal examinations, I am satisfied on the balance of probabilities that the plaintiff suffered from an adjustment disorder with mixed anxiety and depressive symptoms prior to 10 January 2018. I accept that this was a chronic condition, but do not accept that it was disabling the plaintiff at the time of or in the months immediately preceding the accident. The evidence is that her symptoms had settled and were being successfully managed at that time.

I am satisfied that the PTSD she suffers today, whilst featuring some overlapping symptoms with her adjustment disorder, is a distinct injury and not merely an aggravation of her pre-existing injury. Furthermore, the critical change for the plaintiff post-accident is not just the new distinct psychiatric condition, but the effects on her cognitive functioning which are not likely to improve in the future. However, had the accident not occurred, the plaintiff’s pre-existing adjustment disorder may nevertheless have resulted in a level of disability that would at times of stress or crisis reduce her earning capacity and enjoyment of life. The award of damages will be discounted to reflect that vulnerability.

Evidence in relation to physical injuries

The plaintiff’s physical injuries arising as a consequence of the accident are uncontroversial. The plaintiff tendered a number of reports dealing with the plaintiff’s physical injuries. In particular, the reports of Mr Thomas Kossmann, orthopaedic surgeon dated 14 February 2019, and Dr Anthony Menz, orthopaedic surgeon, which summarised the main injuries she sustained to her right knee. In summary, as a result of the accident the plaintiff sustained a severely comminuted and depressed lateral tibial plateau fracture which required surgical elevation and bone graft and internal fixation with plates and screws. She has subsequently gone on to develop a valgus deformity associated with quite significant osteoarthritis of the knee joint.

Dr Menz notes that the plaintiff had no pre-existing problems with her right knee but considers that most of her ongoing symptoms in her shoulder and cervical spine relate to the pre-existing degenerative changes she had in them.[46] Dr Menz goes on to say that he considers that her neck and shoulder were aggravated at the time of the accident and that it was a soft tissue injury which he considers should have resolved at the time of his assessment in February 2021. Dr Menz noted that the plaintiff had mild pre-existing cervical spondylosis which has slowly worsened with time.
[46]Exhibit P10 – Report of Dr Anthony Menz dated 12 February 2021, 6.

In relation to the plaintiff’s right knee, the evidence is that she underwent surgery at the Alfred Hospital to her right knee and was non-weight bearing for approximately four months and spent approximately three and a half months following surgery in a wheelchair.

In September 2018 the plaintiff returned to the Alfred Hospital for review and underwent x-rays of her right knee which revealed that the articular surface was incongruent and that the plaintiff was suffering from a large joint effusion.

In March 2019 the plaintiff underwent surgery to remove most of the internal fixation that was used to support the fracture and the bone graft. A total knee replacement was recommended but the plaintiff indicated that she did not wish to proceed with the total knee replacement at that time, but will at some stage in the future. The plaintiff was referred for physiotherapy, hydrotherapy and Pilates. She undertook each of these activities, including gym exercises. She continues to access hydrotherapy and attend the gym for exercises, subject to COVID-19 restrictions.

On examination on 14 February 2019 Mr Kossmann found that the plaintiff had significant issues in regard to her right knee injury. He was of the opinion that she had instability of the medial and lateral ligaments, reduced mobility of her right knee, a 15 degree valgus deformity, patellofemoral friction, a Baker’s cyst and reduced flexion of 19 degrees. Further, he considered her right knee condition most likely affected her right ankle mobility, with zero degrees of dorsal extension as well as problems with the interphalangeal flexion of her big toe. At the time of examination, the plaintiff continued to suffer from pain in her right knee, in particular at night and was limping. Mr Kossmann considered that the plaintiff’s right knee condition had a profound impact on all aspects of her life.[47]
[47]Exhibit P18 – Report of Dr Kossmann dated 14 February 201, 9.

The experts agree that the plaintiff requires a total knee replacement and that the prognosis for the plaintiff’s right knee is poor and it will become more symptomatic with time.

In relation to her prognosis, Mr Kossmann considered that the plaintiff is unlikely to be able to return to her pre-injury employment as a childcare worker without restrictions. He considered that she will not be able to walk long distances, on uneven grounds, walk upstairs or downstairs or on inclines or declines, climb up and down ladders, kneel or squat, or carry heavy items weighing more than five kilograms. In his opinion, this incapacity will continue for the foreseeable future.[48]
[48]Ibid.

Mr Paul Haskin, physiotherapist, provided a report dated 14 May 2021. He considered that the plaintiff would benefit from ongoing aquatic physiotherapy as it has been demonstrated to be an effective form of treatment for her. He considered the plaintiff had been diligent with her rehabilitation in relation to aquatic physiotherapy and demonstrated excellent progress. He queried whether the plaintiff’s right knee will succumb to osteoarthritic degeneration and agreed that further surgery was likely.[49]
[49]Exhibit P15 - Report of Mr Paul Haskin dated 14 May 2021.

The plaintiff was reviewed by her treating surgeon, Mr Derek Carr, on 15 December 2020. Mr Carr considered that the plaintiff was progressing favourably and that at the time of his examination had no real major issues or concerns. He noted that she started to walk and mobilise relatively well, and he considered clinically that she mobilised with a relatively normal gait. On examination, the plaintiff demonstrated a full pain-free range of motion with well healed surgical scars. He did not consider there was any real joint effusion but noted that the patellofemoral joint was somewhat irritable with atrophy of her thigh musculature. Mr Carr noted that at some stage, due to the trauma and operative intervention, there was a risk of traumatic osteoarthritis which would require an arthroplasty. He did not arrange any further follow-up for the plaintiff at that stage.

Mr Kesser gave evidence in relation to the plaintiff’s injuries and the impact on her life. I consider that Mr Kesser was a compelling witness. He had an accurate recollection of events on the basis that he was directly involved with the plaintiff’s care following the accident. I consider he gave his evidence in a reliable and considered way.

In relation to the accident, Mr Kesser confirmed that the plaintiff was taken to the Alfred Hospital and remained there for approximately seven days and that throughout the time she was given pain medication. He described that within days of the accident, she was bruised all over her body. He said that the plaintiff had ‘strong pain’,[50] and that she was crying when she was in hospital asking questions such as ‘why me? Why [did it] happen to me?’ and why has ‘he destroy[ed] my life?’[51] He confirmed that the plaintiff was discharged from hospital in a wheelchair which she needed to use for approximately three and a half months. He described that when she was discharged back home to her apartment she required assistance with showering, dressing and most aspects of daily living. He said that after the operation the plaintiff was unable to sleep without the lights on and that he would sit next to her and she would sleep with the lights.[52] He said that this never happened before the accident. Mr Kesser described that the plaintiff had some incontinence in the immediate period after the accident which resulted in her wetting the bed.
[50]T213.08.
[51]T213.10-12.
[52]T214.03-05.

Mr Kesser said that the period after the accident was very difficult.[53] He said that the plaintiff had nightmares following the accident and that she still has them now but not as often.
[53]T214.23.

Mr Kesser described that the plaintiff has difficulty when she is in the car as a passenger but does somewhat better if she is driving herself.

After the three and a half months in the wheelchair, the plaintiff required crutches for approximately two months and then required a special orthopaedic boot which caused her some difficulties and she subsequently required the wheelchair for a further period.

Mr Kesser said that a significant issue was the plaintiff’s inability to prepare for her son’s wedding which was a very important event for their family. The plaintiff attended the wedding in Sydney but was on pain medication and was not able to generally participate.

In relation to the plaintiff’s right knee currently, Mr Kesser said that he has observed that her knee is always swollen and that when she walks it clicks and that he observed the plaintiff feeling pain.[54]
[54]T216.26-30.

Mrs Gringruz said that she had been the plaintiff’s friend for many years and that she knew her well before the accident in 2018. She continues to be her friend to this day.

Prior to the accident, Mrs Gringruz would go for walks, on holidays and to the gym with the plaintiff. They would go for walks approximately two to three times a week in their local area and she described the holidays they went on together to America, and Queensland. Mrs Gringruz confirmed that following the operation the plaintiff was unable to care for herself and relied on other people, in particular her husband for showering, dressing and so on. She said that the plaintiff was upset about this.

Mrs Gringruz said that after the accident she has not resumed walking with her friend because of the pain in the plaintiff’s leg. She said that the plaintiff had changed and had become moody and irritable since the accident. She said that because of the injury to her knee, the plaintiff was unable to move around as quickly as she used to and was generally slower, and it would take her quite some time to get ready. She said ‘before [the accident] she just charges up and out of the door and then she was – she’s like an old woman, very, very slow. Her moods change’.[55] She described the plaintiff prior to the accident as being outgoing and that she was no longer like that.[56]
[55]T129.25-27.
[56]T129.28-30.

She said that the plaintiff limps a little and can no longer wear shoes that she used to wear or the clothes that she used to wear.

Findings in relation to physical injuries

I accept that the plaintiff has sustained a serious injury to her right knee following the accident requiring surgery and a prolonged period of convalescence during which she was wheelchair bound and fully dependent on people for her activities of daily life. I accept that the plaintiff was an active woman who enjoyed travel and socialising with people. She was actively involved in her community and had always been involved in some capacity caring for people which required her to be physically able. I accept that the plaintiff’s right knee injury impacts most aspects of her life and the enjoyment that she is able to derive from her everyday activities.

Some of the experts framed their conclusions about the plaintiff’s knee injury in terms of her ability to return to childcare. While the plaintiff’s ability to perform that type of work was already impacted by her cancer treatment, that fact does not detract from the additional restrictions to the plaintiff’s lifestyle caused by her knee injury, which are substantial.

Dr Joseph Slesenger, a specialist occupational physician, noted the plaintiff’s previous experience in aged care and childcare, and her intention to commence work as a bookkeeper in a dental practice. He was of the opinion that these tasks lie outside the limits of the plaintiff’s capacity. He further concluded that she was unlikely to be able to return to work in her pre-injury role in childcare, or as a bookkeeper in a dental practice on a consistent and reliable basis. He based this on her residual right knee, right shoulder and cervical spinal impairment and taking into consideration the medication side effects and her daytime fatigue.[57]
[57]Exhibit P21 – Report of Dr Joseph Slesenger dated 21 April 2021, 15.

Conclusion on the plaintiff’s injuries – pain and suffering damages

As a consequence of the accident, the plaintiff suffered a severe right knee injury requiring major surgery. Post operatively she was non-weight bearing for approximately four months and since that time has continued to complain of chronic knee pain. She has developed a valgus angulation at her right knee and will require a total knee replacement in the future.

The plaintiff also suffers from psychological and psychiatric injuries , including PTSD, with comorbid severe depression and a generalised anxiety disorder. As discussed, the plaintiff had a chronic anxiety and a depressive condition that was well managed at the time of the accident. I accept Dr Popp’s conclusion that her pre-accident background has increased her vulnerability towards decompensation, however the trauma experienced in the accident has blended with her previous trauma, resulting in the development of a PTSD condition that is distinct from her previous condition. Dr Popp considers her depression is directly related to the accident and the effects it had on her. I accept that her neuropsychological and cognitive dysfunction as diagnosed by Dr Popp is secondary to her psychiatric conditions sustained as a result of the accident.

The plaintiff’s prognosis is poor whilst her psychiatric condition remains unaltered.

The medical and lay evidence demonstrates that the plaintiff’s physical and psychological injuries impact on every facet of the plaintiff’s life. I accept that the right knee injury causes the plaintiff ongoing pain and restriction. Her life-style is seriously affected. She previously had a strong social life which is now extremely limited. The plaintiff was an active woman who enjoyed travelling and was involved in her community. The immediate months following the accident left her wheelchair bound and dependent on others. Her treating doctors described an active woman, who was very kind, optimistic and very resilient before the accident.

The accident has had a profound and enduring impact on the quality of the plaintiff’s life. The plaintiff has over her life been able to overcome adversity and has largely dedicated herself to caring for others including her elderly sick parents. She overcame breast cancer and her psychological conditions were largely well managed. She faces the prospect of further surgery. On the evidence her psychological state has little chance of any material improvement. The plaintiff will not be able to embark on a new career or full-time work due to her injuries and will be dependent on people for support in many aspects of her life.

I assess the plaintiff’s damages for pain and suffering in the sum of $380,000.

Evidence in relation to past and future pecuniary loss

As outlined above, the plaintiff has qualifications in aged care and child care. She gave evidence that she worked on a casual or part-time basis in aged care until she requalified in child care, working at a number of Jewish crèches until her cancer diagnosis in 2015. She could not recall precisely when she started and ended work in each industry, and reported slightly different dates to medico-legal experts when being physically and psychiatrically assessed. It was her evidence that she tended to work up to 15 hours a week while also raising her children, caring for her elderly parents and until 2008 volunteering for Rabbi Groner. In some years she also received Centrelink benefits.

It was not disputed that the plaintiff began thinking about returning to work after her cancer treatment finished. She gave evidence that she could no longer work in child care, as the removal of multiple lymph nodes from her hand during her cancer treatment meant she could not perform a role that involved any heavy lifting.

In evidence-in-chief the plaintiff stated that she was seeking part-time employment prior to the accident because she ‘wanted to be busy’.[58] She said:

I was look - because I had problem with my right hand so I couldn’t do the - some heavy duties or something for a long time so I was looking for some part-time jobs that I could perform, that I could do meanwhile, but I was looking for the job.[59]

[58]T23.19.

[59]T23.22-26.

In contrast, in cross-examination she indicated that she had wanted a full-time job at that time.

I wanted to keep myself busy. At that time there was - my parents has gone, my daughter didn’t need me that - on a regular basis and my son was away, so I thought I can start looking for the lighter duties with a full-time job.[60]
…
I wanted to be occupied all the time, I didn’t want to stay at home and think of the problems of my health, I wanted to be busy at that time and to stay at work and to keep - to be inside with other people and everything, to be surrounded by other people, that’s why I was looking for the full-time job.[61]

[60]T81.06-10.

[61]T83.09-14.

It was Mr Kesser’s evidence that the plaintiff wanted more independence after the cancer and started looking for a full-time job. Mrs Gringruz attested to the plaintiff wanting something to do now that her treatment had finished and children had moved out. Mr Kesser noted that initially the plaintiff didn’t have any success in job-hunting, having asked friends and friends of friends. She enlisted Mr Kesser’s help in asking his contacts. He asked his accountant, Mr Boris Feldman, managing director of BT Corporate Advisory to assist the plaintiff as a favour to him.

Mr Feldman gave evidence on 20 August 2021. The plaintiff also relied on a written reference prepared by Mr Feldman on 18 August 2017.[62] Mr Feldman attested to having known the plaintiff and Mr Kesser from their time in Italy before coming to Australia. At some stage Mr Kesser became a client of BT Corporate Advisory. Mr Feldman recalled that either the plaintiff or Mr Kesser asked, as a favour, for him to mentor the plaintiff and give her some experience. The arrangement lasted for a few months between March to August 2017, with ‘very irregular’ informal mentoring sessions.[63] On Mr Feldman’s account, the plaintiff was learning to enter data into MYOB, and potentially other accounting software packages.
[62]Exhibit P6 – Letter from BT Corporate Advisory Pty Ltd, Boris Feldman dated 18 August 2017.
[63]T199.02.

Mr Feldman reflected positively on the plaintiff’s attitude and approach, describing her as ‘very-go getting’, ‘very productive’, ‘trying to learn as much as she could’,[64] and ‘very focused’, with a ‘very positive’ attitude.[65] He stated that she was ‘absolutely’ someone that he would have thought would be an asset to a business:

[b]ecause she’s very dedicated, committed and loyal, all the qualities like she’s reliable, so she’s definitely reliable, loyal and she – if she was working for anybody she would add value to them, you know, with the best of her abilities.[66]

[64]T199.09-10.

[65]T199.25-26.

[66]T202.22-26.

It was Mr Feldman’s view that upon commencing the plaintiff had only ‘very basic knowledge’ of bookkeeping.[67] In cross-examination he accepted that that description reflected her level of knowledge after her training ended too. He stated, when reflecting on whether she would make a good employee, that she was at a ‘junior level and needed a lot of support from a big – from a senior accountant or bookkeeper’.[68] However, he later clarified that the level of support would depend on the task, with a lot of support required for a more senior bookkeeping role, but a lot less support for basic data entry. In cross-examination the plaintiff had some difficulty identifying what skills she had learnt during her sessions with Mr Feldman, and how many sessions she attended. She stated that she did ‘[w]hatever he was telling me to do’.[69] When prompted to elaborate, she said she had answered the phones and checked his appointment book. Later, she stated that she had learnt bookkeeping from Mr Feldman.
[67]T202.08-09.
[68]T202.15-17.
[69]T85.18.

The plaintiff had little memory of how it was that she came to be offered a job at Asher Dental Lab. In his evidence Mr Kesser detailed the further steps he took to find the plaintiff a job. He approached an old friend in the Israeli community in Australia who approached Dr Dabakarov, whose secretary or receptionist had recently left. It was Mr Kesser’s evidence that Dr Dabakarov said he was happy to help, and met with the plaintiff and Mr Kesser before offering her a job that was part receptionist, part bookkeeper. Dr Dabakarov did not give evidence.

On 18 December 2017 the plaintiff was formally offered full-time employment with Asher Dental Lab commencing on 15 January 2018 on an annual salary of $51,376. The offer was made in writing and signed by Dr Dabakarov (‘letter of offer’).[70] The plaintiff gave evidence that she accepted this offer, although she could not recall how she advised Asher Dental Lab of her acceptance.
[70]Exhibit P2 – Letter from Asher Dental Lab dated 18 December 2017.

There are two versions of the letter of offer before the Court. Both are signed by Dr Dabakarov, and by the plaintiff. One, tendered by the defendant, also includes a handwritten date below the plaintiff’s signature, being 21 December 2017.

Following the plaintiff’s accident on 10 January 2018, the plaintiff was unable to commence work with Asher Dental Lab.

Mr Kesser gave evidence that he was aware that Dr Dabakarov had retired and sold his business a few months after the plaintiff’s accident.

The plaintiff was asked how long she thought she would have worked for, had she been able to start at Asher Dental on 10 January 2018, whether it would be ‘for a year, two years or to retiring age’.[71] Her evidence was that she did not know. She answered in the negative when asked whether there would be any reason for her to stop working.
[71]T25.04-05.

Findings in relation to past and future pecuniary loss

I am satisfied that the plaintiff has no residual capacity for work. The question for determination is the quantum of her earning capacity, having regard to her capacity at the time of the accident, and taking account of the uncertainties inherent in predicting the future, and the prospect of changes to the plaintiff’s circumstances, such that her earning capacity might otherwise have been diminished or lost altogether.

The plaintiff cannot claim pecuniary loss for the period of 18 months after the accident.[72]
[72]Transport Accident Act 1986 (Vic) s 93(10)(a).

The High Court in Malec v Hutton Pty Ltd (‘Malec v Hutton’)[73] established the principles to be applied to an assessment of pecuniary loss. Deane, Gaudron and McHugh JJ stated:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than I per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v. McMonagle (9); Davies v. Taylor (10); McIntosh v. Williams (11). The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[74]

[73](1990) 169 CLR 638.

[74]Ibid, 642-3.

The differing evidential threshold in respect of the Court’s assessment of liability and assessment of damages was delineated by the High Court in Sellars v Adelaide Petroleum NL:

[T]he general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.[75]

[75](1994) 179 CLR 332, 355 (Mason CJ, Dawson, Toohey and Gaudron JJ).

The Court is bound to apply these principles in respect of its evaluation of the plaintiff’s pecuniary loss damages.

The plaintiff was not working at the time of the accident, but had been offered ongoing work. The plaintiff submitted that based on the job offer, her earning capacity at the time of the accident should be calculated based on the full-time salary of $51,376 to the age of 67, then discounted to reflect vicissitudes. In closing submissions counsel for the plaintiff conceded that a discount 25% to 30% may be appropriate.[76]
[76]T274.02-11.

The defendant accepted that the plaintiff was entitled to an award of damages in relation to her loss of earning capacity but disputed the basis for the calculation of that award.[77] The defendant opposed the use of the salary offered to her at Asher Dental Lab as the basis for assessing the value of her future losses. The defendant ultimately conceded that the plaintiff had been offered the role, but appeared to contend that she may not have formally accepted it at the time of the accident.[78] I am satisfied on the plaintiff’s own evidence that she did accept the job. The presence of an undated version of the signed letter of offer does not alter my view.
[77]See generally Victorian Stevedoring v Farlow [1963] VR 594 (‘Farlow’).
[78]T258.15-20.

Counsel for the defendant submitted that the considerable uncertainties around the plaintiff maintaining that or like employment until retirement age meant that she only be entitled to a Farlow type allowance[79] of less than $100,000, reflecting what was, in his view, a fairly minimal working capacity but for the accident.
[79]Farlow [1963] VR 594.

The uncertainties of the plaintiff’s hypothetical work life aside, I am not satisfied that this is a case which warrants the application of the principles enunciated in Farlow, given that that case involved a plaintiff who had returned to full-time work, who the Court held was entitled to an award of something moderate by way of insurance against the prospect of their employment situation changing for the worse. Here, the plaintiff has no current or future work capacity, in contrast to a previous history of part-time employment and an offer of full-time work immediately prior to the accident. Counsel for the defendant did not submit that the salary of $51,376 itself was unreasonable or fanciful, and there was no evidence before me of minimum wages or industry practice in that field. Having accepted that the plaintiff was due to start work on that salary, I am therefore satisfied that the salary of $51,376 is the appropriate starting point for my analysis.

There are, nevertheless, a number of factors which impact on my assessment of the likelihood that the plaintiff would have continued to earn at this rate, either considered general vicissitudes or under the auspices of a discount under Malec v Hutton.

The defendant submitted that I should have regard to the fact that the plaintiff:

(a) had never worked in paid employment in a full-time capacity;

(b) had ceased working in mid-2015 due to her cancer diagnosis and had not returned to work;

(c) was actually looking for part-time, not full-time work;

(d) was entering a new industry and type of work from that in which she had formally trained (aged care and child care);

(e) wasn’t dependent on the income from full-time work to support herself;

(f) had pre-existing psychological/psychiatric vulnerabilities;

(g) was in her fifties;

(h) had limited English-language skills;

(i) was hired as a personal favour;

(j) had only basic skills in bookkeeping and required some measure of supervision;

(k) faced the prospect, which in fact eventuated only a [couple] of months later, that the business would close; and

(l) had limited prospects of finding alternative employment in the open employment market.

Many of these factors suggest that a not insignificant discount is warranted. Before I outline the factors I consider relevant and operating on my determination, I briefly want to address the nature of the questioning and assumptions underpinning some of the defendant’s submissions that the plaintiff only desired to work part time, despite her assertion to the contrary in cross-examination, and that it was likely that, but for the accident, she would only have worked part time into the future.

Of note was the apparent reliance on gender and age-based stereotypes and norms to infer that the plaintiff would not want to work full-time because she had grandchildren. Counsel for the defendant asked the plaintiff about the ages of her grandchildren and the frequency with which she babysat for her daughter. Having answered that she cared for them when she could, but not every day or week, the plaintiff was asked:

But, like all good grandmothers, you take every opportunity of going and looking after your grandchildren, wouldn't you?

When the plaintiff later indicated that in 2017 she had wanted full-time work to occupy her time, counsel put it to her that she had lots of things to occupy her during the day other than work – friends, her exercise class, children, a grandchild.[80] There is a gendered and problematic character to the inference I am invited to draw, which is that a woman is more likely to want to stay home with grandchildren than elect to re-enter the workforce at an older age. The mere fact that she was a grandparent, and had been a carer all her life does not, in and of itself, suggest that she was unlikely to work full-time until retirement age. To the contrary, her husband gave evidence that after coming through her cancer treatment, the plaintiff was motivated to seek full-time work to gain independence. It is not unreasonable to infer that, having always prioritised the care of others, the plaintiff might choose a different course for the balance of her working life. This is strengthened by the fact that she sought employment that was less physical and that she could continue to perform as she became older, that she was prepared to volunteer for Mr Feldman, and that she reached out to Mr Kesser for help in finding a job. These factors reflect a determination and commitment to finding full-time work in this new phase of her life.
[80]T83.15-19.

The defendant relies on the plaintiff’s evidence-in-chief that she sought part-time work rather than her evidence in cross-examination that she was searching for full-time work. As noted above, having regard to the reports of Dr Popp, and hearing counsel for the plaintiff’s submissions, I accept that the plaintiff’s testimony as a whole was affected by her cognitive impairments arising from her psychiatric response to the accident. This discrepancy in her evidence should be seen in that context. Whilst the defendant’s submission may be a simple and attractive one, ultimately it was not supported by the evidence.

Counsel also submitted that the plaintiff’s likelihood of working full-time into the future should be seen in the context of what was said to be a lack of ‘economic necessity’ to work those hours.[81] The plaintiff, it was said, did not need a full-time income to ‘keep the home fires burning’.[82] The inference I was invited to draw was that such a workload was optional not mandatory, and that she may opt at any time to cut back. The narrowness of the concept of necessity employed here belies the structural issues that have been demonstrated to affect women and their financial livelihoods, including the interconnected issues of the gender pay gap, unequal divisions of domestic labour in relationships, and the impact of gaps in employment for childrearing on superannuation balances. It is open for me to infer that the plaintiff may have required, or at a minimum, strongly desired the full-time job so as to establish economic independence from her husband and save for her own retirement.
[81]T256.13-14.
[82]T256.16.

The defendant pointed to the plaintiff’s reliance of an interpreter at trial as an indication of her English language skills being less well-developed than she asserted. I do not make any inference from her use of an interpreter during viva voce evidence, as was her right. Given the pressure and heightened stress of giving evidence it is hard to see how such reliance could be illustrative of her language skills more generally.

These inferences aside, the defendant does, nevertheless, raise a number of factors that do markedly decrease the probability that the plaintiff would have worked full-time until retirement age, had the accident not occurred.

Significantly, the plaintiff has never worked full-time in a paid position, and had not worked for almost three years when she was due to start at Asher Dental Lab. It was the plaintiff’s submission that I should have regard to the unpaid work she juggled with raising children, caring for her elderly and infirm parents, and volunteering to care for Rabbi Groner. The plaintiff, and her husband, described this unpaid labour as akin to a full-time job, a characterisation I am inclined to adopt.

Counsel for the plaintiff invited me to see the plaintiff as a determined and resilient woman who had ‘an extraordinary capacity to drive herself and to keep herself working’.[83] Counsel emphasised her resourcefulness in seeking out a mentoring and training opportunity at BT Corporate Advisory and a job through her husband’s connections. The plaintiff’s resilience is incontrovertible in light of the hardships she has endured. However, whilst I do not doubt the plaintiff’s motivation, resilience and drive, she faced a number of hurdles in sustaining full-time work over a number of years.
[83]T271.21-22.

Critically, the plaintiff had pre-existing psychological and psychiatric vulnerabilities which may have interrupted, if not halted her new career. Whilst I do not accept, as outlined above, that the plaintiff’s PTSD was an aggravation of her pre-existing adjustment disorder, she did have an underlying vulnerability to developing depressive and anxiety symptoms in response to life stressors. At times these symptoms required medication and interfered with her daily living, including her capacity to work. The prospect that work or life may have presented the plaintiff with further hardships which elicited a similar or greater response, and interrupted or curtailed her capacity to work, must be considered. The plaintiff accepted that her award should be reduced to a degree to reflect such a possibility, although stressed that her adjustment disorder was in remission at the date of the accident, and should be balanced against her resilient nature.

A further hurdle, potentially compounded by the first, is the fact of entering a new industry and learning a type of work as a person later in life. As counsel for the defendant aptly described it, it is ‘a big ask to walk back into full-time employment in a different field’.[84] The plaintiff was savvy in seeking out, with the support of her husband, an opportunity to learn on-the-job by interning with BT Corporate Advisory. However, it was clear that she still required considerable supervision and support to perform an entry-level bookkeeping role.
[84]T256.10-11.

There are additional hurdles that arise from the inherent insecurity of any employment relationship. In this case the new job she was to commence may not have been available as the business was sold, and Dr Dabakarov retired within months of offering the role to the plaintiff. As highlighted by counsel for the plaintiff, it is conceivable that the plaintiff’s employment would have been transferred to the new owners of the business. However, the manner in which the plaintiff was employed suggested it was highly dependent on her familial connections with Dr Dabakarov, which would invariably place her ongoing employment in jeopardy. In any event, there was always a risk that she would need to find alternative employment at some stage. The defendant submitted that she had limited prospects of finding alternative employment in the open employment market given her age and limited relevant skills. Counsel for the plaintiff contended that the plaintiff’s resourcefulness would equally assist her to source alternate employment on like terms as it had in finding this job.

I accept the plaintiff’s determination would have been beneficial for her in performing that role and in searching for any alternative. However, there is weight to the argument that the plaintiff would experience difficulties in finding other like employment. There is a real possibility that she would be confined to roles located through personal networks, which may have resulted in gaps in employment, or working less hours than preferred based on what was available to her at the time. There is undoubtedly some uncertainty as to the plaintiff’s future employment, at least in a full-time capacity.

Whilst it was not explicitly put to me, in considering vicissitudes I also take account of the possibility of the inverse scenario, namely, that the plaintiff thrived in her employment and was able to obtain a pay increase and/or a promotion. Having demonstrated a capacity to retrain at least once before, I cannot entirely discount the possibility that she might have sought further qualifications relevant to this new field.

Ultimately, however, whilst I do not doubt that the plaintiff hoped to work full-time until retirement age, the practical and compounding constraints of her psychiatric vulnerability, her age, her relatively low skill base in this new career and her reliance on personal networks to source employment make it highly unlikely that her employment would not have been interrupted or ended before she reached retirement age. That possibility is not insignificant in this case, and warrants a discount for vicissitudes of 35% applied to the plaintiff’s past and future loss of earning capacity. I award the plaintiff $70,000 for past economic loss, and $243,00 for future economic loss, inclusive of superannuation.[85]
[85]I note that I have relied on the figure, proposed by the plaintiff, and accepted by counsel for the defendant in closing submissions, of $924.00 as representing net weekly earnings, inclusive of superannuation, based on an annual wage of $51,000. The plaintiff called for, and the defendant made admission, in closing addresses, that the appropriate multiplier to age 67 is 405.0, see T272.05-13 (J P Brett QC); T273.12-15 (J P Brett QC); T275.23-25 (C Blanden QC); T235.16-23 (C Blanden QC).

I note that the plaintiff called for, and the defendant made, an admission that the TAC made payments to the plaintiff in December 2019 for loss of earning capacity.[86] The plaintiff accepted that these payments, the quantum of which was not before the Court, must be deducted from the plaintiff’s pecuniary loss damages.[87]
[86]T234.17-T235.05 (C Blanden QC).
[87]Transport Accident Act 1986 (Vic) s 93(7)(a)(i), and (11)(a)(i).

Funds administration

The plaintiff seeks the costs of the management of the award in line with the NSW judgment of Kirby P, Mahoney JA and Meagher JA in Government Insurance Office (NSW) v Rosniak (‘Rosniak’).[88] The cost of funds management is not recoverable as damages from the defendant unless it is necessitated by disabilities resulting from the defendant's negligence.[89] As noted above, I am satisfied, on the basis of Dr Popp’s uncontested evidence, that the plaintiff’s cognitive impairments arose as a consequence of her psychiatric response to the accident. The plaintiff brings this proceeding through her litigation guardian, her husband, and it was his evidence that he had been appointed as her guardian by VCAT.[90] There was no evidence before me as to the cost of funds management that the plaintiff would likely incur. I note that it was open to the plaintiff for her award be paid into funds in Court, which attracts no management fees. In the circumstances, I am satisfied that the plaintiff is entitled to a small allowance for the potential of private management fees, being 5% of the total of her pecuniary and general damages.
[88](1992) 27 NSWLR 665.
[89]Nominal Defendant v Gardikiotis 186 CLR 49, 57 (McHugh J).
[90]T220.30-21.

Conclusion

In summary I award the plaintiff $380,000 for pain and suffering, and $313,000 for past and future pecuniary damages, totalling $693,000, plus 5% for funds administration and interest.

Subject to hearing submissions, I consider the plaintiff is entitled to her costs of the proceeding. I will also hear submission on the proper form of final orders.

[2021] VSC 621

28 September 2021