Lapetina v Elgee Park Pty Ltd

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0092
LORRAINE LAPETINA	Applicant
v
ELGEE PARK PTY LTD	Respondent

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JUDGES:	BEACH, NIALL JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2024
DATE OF JUDGMENT:	19 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 39
JUDGMENT APPEALED FROM:	[2023] VCC 1288 (Judge Purcell)

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ACCIDENT COMPENSATION – Workplace injury – Damages – Whether judge erred in approach to assessment of loss of earning capacity damages – No error in assessment of loss of earning capacity damages – Leave to appeal refused.

ACCIDENT COMPENSATION – Workplace injury – Whether judge gave adequate reasons for findings – Adequate reasons given – Leave to appeal refused.

ACCIDENT COMPENSATION – Workplace injury – Damages – Whether judge impermissibly influenced by general damages awards in other cases – No error in reference to other cases – Leave to appeal refused.

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, Chulcough v Holley (1968) 41 ALJR 336, CSR Ltd v Eddy (2005) 226 CLR 1, Hunter v Transport Accident Commission [2005] VSCA 1, Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, Lee v Lee (2019) 266 CLR 129, Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, Todorovic v Waller (1981) 150 CLR 402, considered.

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Counsel
Applicant:		Mr MJ Hooper
Respondent:		Mr PH Solomon KC with Ms GJ Cooper
Solicitors
Applicant:	Zaparas Lawyers Pty Ltd
Respondent:	Wisewould Mahony

BEACH JA
NIALL JA
J FORREST AJA:

Following a trial before a judge in the County Court, the applicant obtained an award of damages for psychiatric injury arising from her employment with the respondent. In the first place, the judge assessed damages in the sum of $298,219.20, comprising components for pain and suffering, past loss of earnings and superannuation losses. This amount was subsequently reduced having regard to the receipt by the applicant of weekly payments of compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 and judgment in the sum of $150,000 was entered.
From that order the applicant seeks leave to appeal on three grounds.
In summary:
(a)Ground 1 complains that the judge erred in concluding that loss of earning capacity damages should be assessed on the basis that the applicant would have worked until 14 September 2020 but not beyond that date and with a further reduction for vicissitudes of 20 per cent.
(b)Ground 2 complains that the judge failed to give adequate reasons for making three findings, namely that the applicant would not have worked beyond 14 September 2020; that she would have had some residual capacity for alternative employment between 22 June 2017 and 14 September 2020; and that she suffered an adjustment disorder rather than a major depressive disorder.
(c)Ground 3 asserts that the assessment of pain and suffering damages was erroneous because the judge used other cases as the comparator in determining a fair and reasonable award.
The primary complaint concerns the assessment of economic loss and, in particular, the extent to which the applicant had the capacity and intent to work after the injury. The particular focus was on the application of the principles explained by the High Court in Malec v J C Hutton Pty Ltd.[1]
[1](1990) 169 CLR 638 (‘Malec’).

The decision below

Both liability and damages were in issue at trial. The judge gave detailed and clear reasons for his conclusions.
On 14 September 2015, the applicant (at that time 58 years of age) commenced employment as a housekeeper pursuant to a written contract of employment. At the time of trial, the applicant was 66 years of age. The applicant was one of a retinue of staff engaged to look after Mr and Mrs M.
Mrs M was aged in her early eighties at the time of trial. She suffered from dementia. As a result of her dementia, her behaviour towards staff, including the applicant, was aggressive. It included swearing, physical and verbal abuse and other acts of aggression. Although the applicant said that at the time she was employed she was unaware that Mrs M was suffering from dementia, the judge did not accept that evidence.[2] As will appear, that rejection was one example of a series of adverse findings the judge made in relation to the credit of the applicant.
[2]Lapetina v Elgee Park Pty Ltd [2023] VCC 1288, [187] (‘Reasons’).
Notwithstanding the adverse credit findings, the judge did accept that the applicant was exposed to frequent aggressive and erratic behaviour by Mrs M. The judge found that abuse by Mrs M became personalised towards the applicant in the early part of 2017.[3] His Honour accepted that the respondent knew that Mrs M could be difficult to be around, and that that could present a challenge and cause difficulty for staff including the applicant.[4]
[3]Reasons, [226].
[4]Ibid [318].
The judge found that the respondent should have taken steps, including by counselling and other support, to minimise the deleterious impacts that Mrs M’s conduct had on the applicant and that the respondent’s failure to do so was negligent and resulted in psychiatric injury to the applicant. The judge accepted that counselling was an appropriate response by May 2016, and that counselling would likely have ameliorated the feelings of stress and fearfulness of the applicant such that she would not have had a complete psychiatric breakdown.[5] His Honour was therefore satisfied that the employer’s negligence was a cause of injury to the applicant.
[5]Ibid [388], [402].
Before turning to the evidence concerning the applicant’s psychiatric injury, it is necessary to address the judge’s findings about the applicant’s credit as a witness.
The judge said that he could not ‘accept wholly’ the applicant’s recollection of several key events and facts.[6] The judge said that some of her evidence ‘lacked credibility’ and that her unreliability for otherwise-unimportant issues was relevant to an assessment of her liability on core factual disputes.[7] The judge’s findings were not entirely adverse and he noted that the applicant presented in a satisfactory manner without embellishment[8] and, as already noted, he accepted enough of her evidence as was necessary to make out the cause of action. The judge identified three particular issues on which the applicant’s evidence lacked credibility: her denial of knowledge of her son’s drug use, her knowledge of Mrs M’s dementia and the extent to which she was subject to erratic behaviour.
[6]Ibid [69].
[7]Ibid [70]–[71].
[8]Ibid [72].
In her evidence, the applicant described an event in 2002 when her son was diagnosed with cancer and she needed some limited psychological support but, apart from that incident, there was otherwise no past relevant history of any mental health issues.[9] In cross-examination, she denied an awareness of her son using drugs but was confronted with her clinical records which showed that she had received psychological support in 2015, about four months before she commenced employment with the respondent.[10] The judge regarded her denials in relation to this topic as being unreliable.[11]
[9]Ibid [73].
[10]Ibid [75].
[11]Ibid [93].
The applicant denied being told that Mrs M had dementia before she commenced employment. The judge did not accept this evidence. The judge said the overwhelming body of reliable evidence was that the dementia was discussed both formally and informally with and between the staff and found that the applicant was aware of the dementia and erratic behaviour.[12] The judge noted that, although not fatal to the claim, this evidence infected other parts of the applicant’s evidence and was inconsistent with how her claim in negligence was put.[13]
[12]Ibid [188], [192].
[13]Ibid [193].
In relation to the extent to which the applicant was exposed to abuse from Mrs M, the judge set out in some detail the competing evidence, concluding that the applicant was exposed to abuse and erratic behaviour from time to time.[14] Consistently with his earlier observations about the reliability of her evidence, the judge considered that the applicant had ‘oversold’ the extent of her exposure to the abuse.[15] The judge did accept that the applicant both witnessed and was subjected to abusive behaviour and that exposure to Mrs M could cause staff, including the applicant, to experience negativity and stress.[16] From at least May 2016, the respondent was on notice of the abuse and its potential adverse ramifications.
[14]Ibid [301].
[15]Ibid [303].
[16]Ibid [304].
The judge set out, with commendable clarity, the scope and content of the duty of care in respect of psychiatric injury, including by referring to and analysing relevant authority.[17] There is no complaint in this Court about that analysis. Although the finding was expressed with some degree of qualification, in that the judge concluded that the applicant had exaggerated the extent of her exposure to abuse, he found there was sufficient objective evidence of signs that the applicant’s mental health was compromised as a result of her work. By failing to provide counselling, the respondent was negligent and the negligence was a cause of injury, loss or damage to the applicant.
[17]Ibid [375]–[388].
The judge then turned to the evidence on damages.[18]
[18]Ibid [412].
The contest was largely confined to the extent of the applicant’s symptoms and her ongoing capacity for work. The respondent identified stressful events in the applicant’s life before she commenced employment, including her son’s cancer diagnosis as an adolescent and the events surrounding his later drug use. The judge noted that this had required counselling or intervention from her general practitioner and a psychologist. That said, the judge observed that there was nothing to suggest that these were ongoing concerns for the applicant. The judge noted there was no evidence of the applicant requiring treatment for mental health after she commenced work with the respondent nor any suggestion that she was mentally unwell at that time.[19]
[19]Ibid [416]–[417].
The applicant finished work in June 2017 as a result of an incident at work. At that time she was 60 years of age. She was referred to a psychiatrist, Dr Irena Kolesnikova, and a psychologist, Ms Diane Bulman. In addition, she received treatment from her long-term GP who prescribed medication including temazepam to help her sleep. She described her current symptoms as feeling very tired with low energy and gave evidence that she continued to consult Ms Bulman and Dr Kolesnikova approximately every four weeks.[20]
[20]Ibid [417]–[424].
The applicant described difficulty with concentration, poor memory and difficulty with organising herself. She said she would not be able to cope with the sort of work that she did for the respondent or with her previous employment. She said she felt quite anxious most of the time, which escalated when she was placed in an unfamiliar situation. In contrast, before she was injured, she enjoyed shopping and was highly organised.[21]
[21]Ibid [426]–[427].
In her evidence-in-chief, the applicant said that she and her husband had made a commitment that they ‘would like to do at least five years’ with the respondent. Although there was no definite end time, they had set up a new home at the cottage and left their home in Melbourne. She said she ‘expected to come back to Melbourne and do some part-time work for a few years’ and that she did not know at what age she would finish working. She denied that she and her husband were in a financial position not to work.[22]
[22]Ibid [428].
The applicant said that she had tried to look after her grandchildren as often as she could although there were times when she lacked the energy or mental ability to do so.[23]
[23]Ibid [429].
Although she gave no evidence about it in her evidence-in-chief, in cross-examination the applicant said she went on a holiday to Europe in 2017, Kenya in 2018, Norway in 2019 and Hawaii in May 2022. A further trip was planned to Bali in May 2023. The applicant said that her travel experience was different as a result of her mental health but agreed that she had enjoyed her overseas holidays and planned to continue to holiday overseas.[24]
[24]Ibid [431]–[432].
The applicant denied that she and her husband were in a position to retire.[25]
[25]Ibid [434].
Although she had not referred to it in her evidence-in-chief, in cross-examination the applicant said that she and her husband owned two rental properties from which they derived rental income. The judge considered that the failure to volunteer this evidence was another example of the applicant’s unreliability or exaggeration.[26]
[26]Ibid [438].
The judge said that, consistent with his overall assessment of the applicant’s evidence, the applicant had ‘put her best foot forward’ when giving evidence relevant to damages.[27]
[27]Ibid [441].

The medical evidence

Dr Kolesnikova

Dr Kolesnikova, who was the applicant’s treating psychiatrist, provided three reports. They are a consistent record of a diagnosis of adjustment disorder with mixed anxiety and depressed mood. Dr Kolesnikova believed that the applicant’s condition was entirely work-related, leading to severe distress with psychological symptoms of anxiety and depression, and that she continued to have no capacity for her pre-injury employment or any other alternative duties. She regarded the prognosis for returning to work as negative on the basis that there had been no improvement in psychological symptoms of anxiety and depression.[28]

Ms Bulman

[28]Ibid [445]–[451].

The applicant tendered four reports from Ms Bulman, the treating psychologist. In her final report of 28 January 2023, Ms Bulman noted that the applicant had presented with symptoms of crying, irritability, difficulty with concentration, indecision, procrastination, memory lapses and confusion. She noted that the progress of the applicant’s recovery had been slow.[29] Ms Bulman said:
I imagine once the legal processes are complete that she will be able to re-engage in living and begin to regain some control and direction in her life. This however may not be in the workforce give [sic] that she is close to retirement.[30]

Dr David Weissman

[29]Ibid [452]–[454].

[30]Ibid [454].

Dr Weissman, a consultant psychiatrist engaged by the applicant’s solicitors who was consulted for the purpose of providing a medicolegal assessment, provided two reports. He diagnosed a chronic major depressive disorder with anxious distress of moderately-severe intensity and opined that she appeared to be totally psychiatrically incapacitated for all work.[31]

Dr Michael Epstein

[31]Ibid [456]–[457].

Dr Epstein, a consultant psychiatrist engaged by the applicant’s solicitors, provided a single report. He diagnosed a major depressive disorder and opined that the applicant was unable to return to pre-injury employment or any other suitable employment.[32]

Dr Leon Turnbull

[32]Ibid [460].

Dr Turnbull, a consultant psychiatrist engaged by the applicant’s solicitors, provided his initial report dated 25 November 2019, which the judge considered to be considerably out of date. Dr Turnbull diagnosed the applicant as having a major depressive disorder with some features of traumatisation. He could not identify any suitable employment for her. In a second report dated 20 May 2021, his opinion remained unchanged.[33] In a third report dated 7 September 2021, Dr Turnbull opined that there was no ‘crisp line’ between diagnoses of adjustment disorder and major depressive disorder, and that they had ‘more in common than apart’ in his opinion, and otherwise confirmed his view that the applicant was ‘basically completely incapacitated for work’.

Dr Rasanjali Rathnayake

[33]Ibid [460]–[461].

Dr Rathnayake, consultant psychiatrist, provided four reports after examining the applicant at the request of the respondent.
In her first report dated 8 April 2019, Dr Rathnayake diagnosed an adjustment disorder with mixed anxiety and depressed mood, of which employment appeared to be the cause. At that time, she opined that the applicant did not have a capacity for work.[34]
[34]Ibid [465].
In her second and third reports, that position remained relatively constant.[35]
[35]Ibid [466]–[467].
In a final report dated 9 July 2021, Dr Rathnayake noted some improvement in the applicant’s symptoms but concluded that the applicant did not have a capacity for her pre-injury employment. Dr Rathnayake recommended in-patient assessment or medication review. Dr Rathnayake described the applicant as being unwilling to consider returning to work, saying that the applicant said that she:
does have a capacity for part time work up to eight hours a week at present, performing suitable duties. In order to improve her confidence in returning to work, I recommend that she starts by doing voluntary work.[36]

Dr Chris Grant

[36]Ibid [468].

Dr Grant, a consultant psychiatrist, provided two reports on behalf of the respondent. In his first report, dated 8 April 2019, he said the applicant had a major depressive disorder, moderately severe, non-psychotic type with some features of traumatisation. In his second report dated 17 January 2023, he arrived at the same diagnosis and opined that the applicant was unfit for pre-injury duties or equivalent duties and doubted that she had a current work capacity or a capacity for suitable employment. Dr Grant continued that he:
… think[s] it is likely that her mood and capacity will improve once litigation is concluded, given that she has described a very significant reaction to the litigation process. I think that she will recover a capacity for part time modified duties in the medium term, once litigation is concluded.[37]
[37]Ibid [469]–[471].

The judge’s reasons on damages

Pecuniary loss

In order to frame the judge’s reasons on pecuniary loss, it is convenient to refer to some critical dates. The applicant had a contract of employment with the respondent from 15 September 2015. She stopped work due to her psychiatric injury on 22 June 2017. The applicant was born on 8 May 1957, thus in round terms the age of the applicant was:
(a)58 when she started working for the respondent;
(b)60 when she stopped work due to injury;
(c)63 at the expected end of her employment with the respondent;[38] and
(d)66 at the date of trial.
[38]The applicant said that she and her husband would like to ‘do at least five years’ with the respondent and that she expected to come back to Melbourne and do some part-time work for a few years.
Before expressing his conclusions, the judge touched on a number of matters bearing on the applicant’s capacity to work. He noted that there was some medical evidence that the applicant had a capacity for part-time work.[39] The judge referred to the applicant’s evidence that, upon returning to Melbourne at the conclusion of her contract, she would have sought full-time employment but regarded that evidence as not compelling, concluding that there was ‘uncertainty as to whether, at her age … and with her work history, she would have achieved further or additional employment’.[40] The judge said the evidence tended to a conclusion that the applicant and her husband were financially sufficiently well off such that retirement or semi-retirement would have been an option for her after her five-year stint with the respondent.[41]
[39]Reasons, [480].
[40]Ibid [481].
[41]Ibid [480].
The judge recorded the respondent’s submission that the applicant would have ceased full-time employment in September 2020, being a period of 163 weeks, and that this figure should be reduced by 50 per cent for the vicissitudes of life having regard to the applicant’s past mental health issues and her difference of opinion with a fellow employee.[42]
[42]Ibid [482], [484].

The applicant had submitted to the judge that she would have completed the five-year contract and then reduced her working hours but continued employment until at least 70 years of age so that her capacity should be based on full-time hours until the completion of the contract and 50 per cent thereafter until she was 70 years old.[43]
[43]Ibid [483].
The judge concluded:
First, on the evidence, I prefer the submission of the defendant that, on balance, the plaintiff would have worked until 14 September 2020, but [was] likely to have not worked thereafter. That equates to a period of past pecuniary loss of 163 weeks.
Second, I do not accept the defendant’s submission that a 50 per cent vicissitude should be applied. Absent the work injury, there is no suggestion that the plaintiff was not capable of the work with the defendant. There is no suggestion that it would not have been available, even if tensions were brewing with Lynda.
Third, I consider it more probable than not that the plaintiff would have worked her five years with the defendant, returned to Melbourne and then retired to enjoy travel and time with her family and grandchildren.
Fourth, there is the prospect that the plaintiff could have engaged in some part-time employment or could have engaged in employment from time to time, after ceasing with the defendant. In that sense, there are both positive and negative vicissitudes.
Fifth, I consider a fair approach is to allow the plaintiff her full pecuniary loss for the five years up to 14 September 2020, but with a further vicissitude of 20% to reflect both general vicissitudes but also to reflect the unreliability of aspects of her evidence about the extent of incapacity and that within that five year period she would have had some residual capacity for alternat[ive] employment at least on a limited hours basis, consistent with her ability to engage in overseas travel and the like.[44]

General damages

[44]Ibid [485]–[489].

As already noted, the judge made an award of general damages in the sum of $150,000. The applicant says under ground 3 that, in doing so, the judge impermissibly treated other cases as either controlling or as setting the relevant limits of the award. The applicant focuses on the following passage in the Reasons:
I consider that the pain and suffering consequences and the extent of psychiatric injury to the plaintiff are significant, but not at a level seen, for example, in some of the institutional abuse cases or cases of serious workplace bullying and harassment. I also consider that she has embellished some aspects of her evidence about pain and suffering consequences or left out relevant facts such as her enjoyment of overseas travel. Taking those factors into account, I consider that the sum of $150,000 is an appropriate award of general damages.[45]
[45]Ibid [478].
In reaching that conclusion, the judge accepted that the applicant continued to feel anxious and had some sleep disturbance. It caused some interference with her ability to engage with family and undertake day-to-day hobbies and tasks such as shopping, exercising, and interacting with her grandchildren. However, the judge noted that the applicant is still reasonably active, engages in regular overseas travel, and exposes herself to the challenges that overseas travel can provide. The judge considered that she was able to socialise with family, including at family gatherings and during overseas trips, was able to drive a car and did not present with any obvious difficulty in cognition during her time in the witness box.[46]
[46]Ibid [474]–[475].

Ground 1: The submissions

The applicant’s primary attack was pitched as one of principle. The applicant submits that, having found it was more probable than not that the applicant would not work past September 2020, the judge failed to have regard to the chance that she would have continued to work and thereby breached the principle explained by the High Court in Malec.
The applicant submitted that the judge converted a finding made as to a likelihood on the balance of probabilities into a certainty that, had she not been injured, she would not have worked after finishing the five-year period with the respondent. Based on Malec, the applicant submits that it was only open to the judge to ignore entirely the chance of the applicant working beyond the five-year period if the chance was so low as to be regarded as speculative.
The applicant says that the judge’s findings that she and her husband were sufficiently well off that retirement or semi-retirement would have been an option and that their taking of overseas holidays pointed to an intention to retire were not supported by the evidence. The applicant says that the compelling medical opinion was that the applicant had no capacity for work and that the judge erred by finding that the applicant had any residual capacity to work.
The respondent submits that the judge adopted a fair approach to the assessment of the applicant’s pecuniary loss, especially in light of the judge’s findings as to the unreliability of some of the applicant’s evidence. The judge’s findings as to whether the applicant would continue to work beyond September 2020 and had residual work capacity were reasonably open to him.

Ground 1: Decision

There is no dispute between the parties as to the content of the applicable principles that the judge was required to apply when he came to assess pecuniary damages.
First, the assessment of pecuniary damages necessarily involves consideration of a hypothetical: what would the applicant’s capacity have been and how would it have been deployed had the applicant not been injured.
Second, the applicant was entitled to damages reflecting the loss of earning capacity both before the trial and after it. Damages are awarded for a loss of earning capacity and awardable to the extent the loss has been or may be productive of financial loss.[47] The valuation of the loss of earning capacity involves a consideration of what moneys could have been produced by the exercise of the applicant’s former earning capacity.[48]
[47]CSR Ltd v Eddy (2005) 226 CLR 1, 16 [30] (Gleeson CJ, Gummow and Heydon JJ).
[48]Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 658 (Barwick CJ).
Although it is conventional to separate past and future economic loss, they are both aspects of the same head of damage. Generally, the assessment of past loss — that is, the amount of the loss calculated up to the trial — is more readily capable of being ascertained with precision.[49] The Court will know whether there are other factors that have occurred that may, independently of the tort, have resulted in a loss of earning capacity or in a decision on the part of the applicant not to engage in employment.
[49]Husher v Husher (1999) 197 CLR 138, 142–143 [6]–[7] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
Third, and this is the point derived from Malec, where an assessment of the effect of an injury requires an assessment of future or hypothetical events, exact proof is necessarily unattainable. For that reason, the Court must assess the degree of probability that an event would have occurred or might occur and adjust its award of damages accordingly.[50] The adjustment may increase or decrease the amount of damages otherwise to be awarded.[51]
[50]Malec (1990) 169 CLR 638, 643 (Deane, Gaudron and McHugh JJ).
[51]Ibid.
Fourth, an allowance may be made for contingencies or vicissitudes.[52]
[52]Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 659 (Barwick CJ).
It is also necessary to say something about the principles that this Court must apply in the present application seeking leave to appeal an award of damages. An appeal from the County Court to this Court is an appeal by way of rehearing on identification of error. This Court must conduct a real review.[53] With that said, there is a recognised reluctance to revisit factual findings of the trial judge that depend on credibility findings.[54]
[53]Fox v Percy (2003) 214 CLR 118, 126–27 [25] (Gleeson CJ, Gummow and Kirby JJ) (‘Fox’). See also Abalos v Australian Postal Commission (1990) 171 CLR 167, 178–79 (McHugh J); Devries v Australian National Railways Commission (1993) 177 CLR 472 (‘Devries’).
[54]Devries (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ), referred to in Fox (2003) 214 CLR 118, 127–28 [26]–[27] (Gleeson CJ, Gummow and Kirby JJ).
Although the course of the applicant’s life had she not been injured in her employment with the respondent cannot be known with certainty, the possibilities still depended to a significant extent on an assessment of her evidence. This brings into play the role of this Court in a review of factual findings. As the High Court explained in Lee v Lee:
A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.[55]
[55](2019) 266 CLR 129, 148–49 [55] (Bell, Gageler, Nettle and Edelman JJ) (citations omitted).
Further, there is an additional reason for appellate restraint having regard to the nature of the decision made by the judge, both in respect of pecuniary and non-pecuniary damages. In Todorovic v Waller, Gibbs CJ and Wilson J said:
It is true that as the assessment of damages has become more sophisticated, calculations are made in an attempt to achieve greater precision. Such calculations may sometimes give a false appearance of accuracy. Some of the figures on which they are based are the result of estimate or speculation. In the case of loss of earning capacity it is necessary to compare what the plaintiff might have earned if he had not suffered the injury with what he is likely to earn in his injured condition. In many cases this means that the court has to engage in ‘a double exercise in the art of prophesying’ … Of course in some cases of serious injury it will be possible to say that the plaintiff is probably capable of earning nothing in the future. However, in no case can there be any solid basis on which to determine what the plaintiff would have earned if he had not received the injuries in respect of which he sues. Actuarial tables will show the average number of years which will be lived after a certain age by those alive at that age, but will not show that it is probable that the plaintiff, even if in good health, would have conformed to the average. No evidence can possibly indicate whether the plaintiff, had he not been injured, would have remained in good health, and continued to be employed at any particular rate of earnings. For these reasons, damages for financial loss likely to result from personal injury ‘can only be an estimate, often a very rough estimate, of the present value of his prospective loss’ … Ultimately the process must always be one of judgment rather than calculation.[56]
[56](1981) 150 CLR 402, 412–13 (citations omitted).
In applying the relevant principles in this case, there were two variables that assumed particular significance. The first is how long the applicant would have engaged in paid employment, including part-time or full-time work. The second is whether, notwithstanding her significant injury, the applicant retained some capacity for work in the future. In addition, there is the category of residual variables which are commonly reflected in a discount based on the vicissitudes of life.
At the time the judge came to assess damages in May 2023, the five-year period contemplated by the applicant and her husband which commenced with her employment in 2015 had come to an end. The judge accepted that the applicant intended to work for the respondent for five years.
The judge also referred to the period after that nominal five-year term had expired. Although it was more probable than not that the applicant would have retired in 2020 to enjoy travel and spend time with her family, the judge expressly adverted to the possibility that she would seek further work, most probably of a part-time nature. The judge did not seek to give any mathematical estimate of this possibility, describing it as a ‘prospect’ and a ‘positive vicissitude’.
The applicant says that, by dint of his fact finding, the judge converted the probability that the applicant would retire in 2020 to a certainty and thereby ignored the value of any residual capacity. We are unable to accept that submission. If the judge had made the error attributed to him by the applicant, there would have been no occasion to refer to the chance or prospect of the applicant working beyond the five-year period. Further, the judge’s express reference to positive and negative vicissitudes[57] is a plain acknowledgment that his task involved some degree of speculation or estimation of the future beyond the applicant’s five-year employment with the respondent.
[57]Echoing Windeyer J in Bresatz v Przibilla (1962) 108 CLR 541, 544 in which his Honour said ‘all “contingencies” are not adverse: all “vicissitudes” are not harmful’.
The task for the judge was to convert both the likelihood of the applicant working to 2020 and the prospect of working thereafter to a value in money. In assessing whether the applicant was denied the ability to work, the judge took into account not only her intent but whether she retained any capacity and whether the employment might have come to an end anyway. There were also the ordinary vicissitudes of life.
We accept that the method that the judge employed to calculate the loss of earning capacity that was based entirely on the period of employment with the respondent leaves open an argument that the judge ignored the possibility that the applicant may have obtained some work after that employment came to an end. That concern is compounded by the relatively-high discount for vicissitudes in respect of past economic loss. Having found that it was more probable than not that the applicant would have served out a five-year period and, in the absence of some independent factor having arisen before September 2020, the discount of 20 per cent seems a little high.
Nevertheless, a fair reading of the Reasons reveals that the judge did not end his analysis of the loss of earning capacity on the basis of his finding that the applicant was more likely than not to retire in 2020. There were four factors that also weighed with the judge: first, there had been some conflict, or difference of opinion, between the applicant and another employee of the respondent that may have affected the applicant’s willingness to continue working with the respondent; second, there were a number of factors, including travel and family, that provided an incentive to retire; third, there was some medical evidence of her residual capacity for part-time employment; and fourth, the judge could not accept uncritically the applicant’s evidence that she would have continued in employment after September 2020.
It follows that the judge did take into account the possibility of employment post-September 2020 and the error of principle relied on by the applicant evaporates. There was no single way that the judge was required to accommodate that possibility and, although the judge enumerates five matters in the relevant part of the Reasons (set out above at paragraph 40), the fifth item is better understood as a summary that shows that the judge attempted to accommodate all of the competing considerations in order to adopt a fair approach. The attack on principle fails.
The balance of ground 1 was directed to an attack on the findings and ultimate conclusion of the judge.
The applicant says that the judge’s finding that she would not have worked beyond 14 September 2020 was against the weight of the evidence. The main evidence relied on by the applicant on this question came from the applicant herself, which was to the effect that she and her husband had committed to working for five years with the respondent, following which she would then return to Melbourne and seek employment. For the reasons given by the judge, he found that evidence to be less than compelling.
The judge’s assessment of the credibility of the applicant as a witness was explained in some detail by reference to a number of features of her evidence directed both to critical matters and matters that were more peripheral but that reflected poorly on her credit. The judge was not obliged to accept the applicant’s evidence as to her intentions in terms of prospective employment, particularly given his concerns as to her credibility. In our opinion, the judge’s conclusion as to the likely course that the applicant would have followed had she not been injured was well open to him. The finding that she would probably have continued working for five years and then retired was consistent with the evidence once her account was discounted for the reasons given. Given the applicant’s age, it was a finding that was not inconsistent with general experience and it was sufficiently grounded in the evidence as to be open to the judge.
The next complaint concerns the judge’s finding that there was medical evidence that the applicant retained some capacity notwithstanding the injury. It may be accepted that the preponderance of evidence was that at the time of trial the applicant was incapacitated for work. That said, the professional opinions were based in part on the applicant’s history and the judge was able to assess the applicant’s current symptoms, in the light of his general findings as to credibility, and the extent to which she was able to enjoy other aspects of life including overseas travel and looking after her grandchildren. Plainly, her capacity was significantly compromised but the judge was persuaded there was at least some residual capacity, consistent with the opinion of one of the consultant psychiatrists (one of the other psychiatrists considered that the applicant would recover a capacity for work once the litigation was concluded). And that was a relevant factor in assessing the appropriate sum to compensate the applicant for her loss of earning capacity. This finding was open to the judge.
The third complaint is directed to the judge’s deduction for vicissitudes of 20 per cent. There is no single correct figure and the method adopted by the judge was to take into account a variety of factors including his assessment of residual capacity and the likelihood that the applicant would retire after her putative employment with the respondent ceased. In our view, the assessment was open to the judge.

Ground 2: The submissions

By ground 2, the applicant contends that the reasons of the judge in relation to three findings were inadequate. The findings were: first, that the applicant was likely not to have worked beyond 14 September 2020; second, that between 22 June 2017 and 17 September 2020 the applicant would have had some residual capacity for alternative employment, at least on a limited hours basis; and third, that the applicant suffered an adjustment disorder rather than a major depressive disorder.
The applicant contends that the judge gave only ‘bare conclusions’ as to the first finding. As to the second finding, the applicant says that Dr Rathnayake was the only expert who supported the applicant having residual capacity and, in circumstances where there was no cross-examination of the experts, the judge did not explain why he accepted her opinion over the opinion of the other doctors. The applicant says that the judge gave his conclusions rather than exposing a path of reasoning and that the reader is left to wonder why, in the face of a convincing body of evidence, the judge found that the applicant had some residual capacity. As to the third finding, the applicant complains that the judge gave no reasons other than saying ‘on balance’ he made a finding that the applicant suffered from an adjustment disorder rather than a major depressive disorder.

The respondent submits that the judge provided a detailed judgment setting out sufficient reasoning for the relevant findings.

Ground 2: Decision

The principles that this Court must apply relevant to a ground that asserts a lack of reasons are well-established: a judge is required to set out findings on material questions of fact, refer to the relevant evidence and provide an intelligible explanation of the process of reasoning that led the judge from evidence to conclusion.[58]
[58]Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Nettle JA).
The reasons given by the judge are extensive and detailed. It is plain, as already observed, that the judge took an adverse view about the credibility of the applicant as a witness and was not prepared to accept her account in some important respects. As the respondent correctly submits, the judge concluded that:
(a)the applicant and her husband were financially sufficiently well off that retirement or semi-retirement would have been an option after five years working with the respondent;
(b)the applicant was at an age when many people choose to retire;
(c)there was uncertainty given her age and work history as to whether she would have achieved further or additional employment; and
(d)the applicant’s enjoyment of travel and time with family, including grandchildren, provided an incentive to retire.
Plainly, the judge provided a reasoned explanation for his conclusion that the applicant was likely not to have worked beyond 14 September 2020.
The judge’s finding of residual capacity was based in part on his assessment of the applicant’s evidence, including her current expressed symptoms and her ability to engage in overseas travel. The path of reasoning was adequately exposed.
As to the third finding — that the applicant suffered an adjustment disorder rather than a major depressive disorder — the relevant conclusion followed a detailed discussion of the medical evidence and the applicant’s continued ability to engage in overseas travel and socialising. In any event, the judge noted that, although there was a difference in the formal diagnosis between doctors, not much turned on that and the description of the psychiatric condition was broadly consistent.[59]
[59]Reasons, [472].
Ground 2 must be rejected.

Ground 3: The submissions

The applicant complains about the passage referred to above[60] in which the judge expressed his conclusion on damages for pain and suffering. By reference to the decision of the High Court in Planet Fisheries Pty Ltd v La Rosa,[61] the applicant submits that the judge failed to direct attention to the applicant’s subjective feelings and losses but rather was impermissibly influenced by a comparison of like cases.
[60]At paragraph 40.
[61](1968) 119 CLR 118, 125 (‘Planet Fisheries’).
The applicant submits that in the impugned passage the judge misdirected himself by comparing the applicant’s situation to institutional abuse cases or other unspecified cases of workplace bullying and focused on the nature of the events rather than the impacts of the injury on the applicant.
The respondent submits that this Court cannot interfere with an award of damages unless it can be shown that the judge acted upon wrong principle, misapprehended facts or made a wholly erroneous estimate of the damage suffered. The award made by the judge was not grossly disproportionate. Further, a fair reading of the Reasons shows that the judge was not overborne by the influence of other cases.

Ground 3: Decision

In Planet Fisheries, the High Court said in a ubiquitous passage:
It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases. We cannot think that the passage cited from Chulcough v Holley should be understood as expressing a contrary view. The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.[62]
[62](1968) 119 CLR 118, 124–25 (citations omitted).
The High Court made those observations in the context of rejecting a submission by the appellant in that case that the trial judge’s award of damages was excessive, by reference to a range of specific cases that the appellant argued established a norm or standard of the amount to be awarded for general damages in cases of injury of the kind suffered by the respondent.[63]
[63]Planet Fisheries (1968) 119 CLR 118, 124.
Other awards of damages do not provide set points of reference, nor do they operate as a precedent.[64] At the same time, as the Court observed in Planet Fisheries, a trial judge will be aware of and may give weight to ‘current general ideas of fairness and moderation’.[65] Further, it is not impermissible for a judge to be mindful of what was done in other cases when asked to consider whether a particular award of damages is excessive or inadequate.[66] In the appellate context, it has been said that other cases are not entirely irrelevant, and that there remains some utility in looking generally at past cases as a guide by which an appellate court can assess the reasonableness of an award.[67]
[64]Chulcough v Holley (1968) 41 ALJR 336, 338 (Windeyer J) (‘Chulcough’).
[65]Planet Fisheries (1968) 119 CLR 118, 125.
[66]Chulcough (1968) 41 ALJR 336, 338 (Windeyer J), cited in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 350 [69] (Hayne J).
[67]Geelong Leather Pty Ltd v Delaney [2014] VSCA 98, [59] (Beach JA, with whom Maxwell P and Kyrou AJA agreed).
In our view, the brief reference to other cases does not evidence error on the part of the judge. The judge did not treat the other kinds of cases referred to as establishing a norm or standard as to the appropriate amount to be awarded. Further, the assessment of general damages arrived at in the impugned paragraph has to be read in the context of the Reasons as a whole. The judge had the benefit of seeing the applicant give evidence and formed impressions as to the impact that the injury had on her. Undoubtedly, he was influenced by a variety of matters, including the fact that she was able to travel and enjoy overseas holidays and spend time with family.
There is no reason to conclude that the judge impermissibly directed himself by reference to comparable cases. Certainly, the award was not by any means derisory, although a different judge may have made a larger or smaller award. No basis for this Court to intervene has been established in respect of the amount of the general damages. Ground 3 must be rejected.

Conclusion

The application for leave to appeal should be refused.
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[2024] VSCA 39

19 March 2024