Theodoros Christodoulou v Gaofei Yang
[2021] VCC 840
•25 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-02453
| THEODOROS CHRISTODOULOU | Plaintiff |
| v | |
| GAOFEI YANG | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3rd, 4th & 7th June 2021 | |
DATE OF JUDGMENT: | 25 June 2021 | |
CASE MAY BE CITED AS: | Theodoros Christodoulou v Gaofei Yang | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 840 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: General damages to be assessed – loss of earning capacity – whether Plaintiff is totally incapacitated for work – psychiatric condition
Cases Cited:Victorian Stevedoring v Farlow [1963] VR 594
Judgment: Judgment for the Plaintiff. Damages awarded.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr C Sidebottom | Slater and Gordon |
| For the Defendant | Mr C Blanden QC with Mr S Pinkstone | Transport Accident Commission |
HIS HONOUR:
1Just after 8:00pm on 24 December 2017 Theodoros Christodoulou was riding his 1999 Honda Blackbird motorcycle. He came to a stop at the corner of Western Port Highway and Moreton Bay Boulevard. While stationary at the lights, he was struck by the Defendant’s car from the rear. The Defendant admits that he was negligent in the driving of his car and admits that this caused injury to Mr Christodoulou. The matter was contested on limited grounds and the trial raised the following questions:
a)In what sum are Mr Christodoulou’s general damages to be assessed?; and
b)In what sum are Mr Christodoulou’s loss of earnings capacity damages to be assessed? This raised the real issue in the case, namely, whether Mr Christodoulou is totally incapacitated for work to age 67 or is he only partially incapacitated?
2I have answered these questions in the following way:
a)General damages are assessed in the amount of $350,000;
b)Loss of earning capacity damages are assessed on the basis of total incapacity from the date of injury to age 67 in the amount of $682,822.
Relevant Background
3Mr Christodoulou was born in Melbourne on 10 April 1973 to Greek Cypriot parents. He was born with a slight stutter. He attended school to year 10. He was an average student.[1] He completed year 10 at Syndal Technical College. He did not go on to VCE. After this he worked in a fruit shop as an assistant and then did some labouring work. In 1993, he moved to Cyprus where he lived for eight years. During this time he performed military service, did labouring work and also performed some hospitality roles.
[1] Defendant’s Court Book (“DCB”) 7, Report of Associate Professor Peter Doherty dated 31 January 2021
4On his return to Australia in 2001 he worked a variety of manual jobs in roles such as forklift driving, labouring, warehouse picking and as a truck driver. Of particular note, he started with Safeway in their Mulgrave distribution centre on 19 February 2012 and worked there until 19 March 2017. This was regular full-time employment. He then moved to Transcrete Pty Ltd as a truck driver and began working there in late March 2017. This was once again full-time employment. During this time he got the idea to go into business as a self-employed truck driver doing car towing and lifts. To do this he put down a $5000 deposit on a tilt tray truck in about October 2017 with the balance of $45,000 due in February 2018.[2] With this plan in mind, he gave evidence, that he ceased work with Transcrete Pty Ltd on 7 December 2017. He said this was so he could have a break over Christmas and complete his plans for the commencement of his business in the new year.[3]
[2] Transcript (“T”)28, Line (“L”)15 – 18
[3] T29, L1
5Up to that point, Mr Christodoulou’s past medical history was entirely benign. The stutter from his younger years had largely disappeared.[4] He had been seeing his treating doctor, Dr Lolatgis, since about 2006 and there were no significant issues: Mr Christodoulou was in good health.
[4] T24, L1. See also T79, L21 – 23 and T128, L23
6Relevantly, he lived by himself in his own home (with a mortgage). He had siblings with whom he was close and a range of friends. He enjoyed deer hunting and four-wheel driving at least a few times a month with close friends.[5] Normally this was around the Eildon,[6] Toolangi and Wonthaggi areas.[7] He had a long-term partner, Maria, and had intentions to marry her.[8]
[5] T20, L16
[6] T126, L23
[7] T127, L1
[8] T24, L6
The incident
7As mentioned previously, the subject incident occurred on Christmas Eve 2017. Some of the finer details of the incident were contested, however they were raised in the context of querying Mr Christodoulou’s veracity and the severity of his injuries. I will deal with those inconsistencies under those headings later. It is sufficient to broadly set out the non-contentious components of the incident and its aftermath. At the time Mr Christodoulou’s motorbike was struck, he was wearing a helmet and leathers. As his motorbike was struck, he was thrown up and backward across the bonnet of the offending car and came to rest on the roadway. The Victoria Police recorded;[9]
“…unit 1 collided into the rear of unit 2. The motorcycle rider was ejected and thrown back with his head striking the windscreen of unit 1 and was then thrown over the top of the car.”
The Ambulance Victoria records note;[10]
“today at approx 2025hrs pt has been on his motorbike stopped at traffic lights when a car has rear ended him, knocking him off his bike. Unknown speed of car impact. Pt has then stood up and been walked off the road by passers by… No LOC no neck pain, tenderness, pt had full recall”.
[9] Plaintiff’s Court Book (“PCB”) 244
[10] PCB 39
8Mr Christodoulou, in evidence, when asked about what he could recall of the incident replied “not much at all’’.[11] That became simply that after he was struck he ‘‘… Flew back. I hit the ground and I don’t recall much… And I was put in the ambulance and wake [sic] up in the Alfred Hospital’’.[12]
[11] T13, L18
[12] T13, L23 – 27
9Given Mr Christodoulou’s lack of recall, the best source of evidence regarding the circumstances of the accident arise from the Victoria Police reporting, I find. I accept it most likely represents the best version of the incident and I find accordingly that the Victoria Police incident report records the circumstances of the incident most accurately and depicts the way Mr Christodoulou was injured.
10The ambulance conveyed Mr Christodoulou to the Frankston Hospital shortly thereafter. CT scanning of the back revealed an L1 superior endplate fracture with 15% loss of height.[13] CT scan of the head was clear.[14] He was discharged by ambulance directly to the Alfred Hospital. He remained at the Alfred Hospital for four nights and five days. CT scanning there showed the L1 fracture and loss of 30% vertebral height.[15] A fracture of the left wrist was also diagnosed and this was splinted. This healed uneventfully and nothing further need be mentioned about it. Mr Christodoulou was discharged on 29 December 2017 with follow-up in orthopaedic outpatients. On discharge, he was required to be in a back brace for six weeks.
[13] PCB 20
[14] PCB 19
[15] PCB 25. See also PCB 79 SPECT-CT scanning in October 2018 ultimately showed a 50% loss of
vertebral body height of the L1 disc.
11He was then seen in the outpatient clinic on 5 January 2018 with ongoing pain and findings of altered sensation in the right lower limb in the L2/L3 and S1 distribution.[16] His medications on discharge were noted to be both Targin and Endone, strong morphine based medication. On 12 January 2018, he had worsening right flank pain and lower back pain that was noted to be severe in the outpatients clinic. His left lower limb continued to have altered sensation.[17] During this time he came under the treatment of his long term treating doctor, Dr Lolatgis, and saw him for the first time after the incident on 24 January 2018.[18] He took a history of chronic back pain with radiation to flanks on either side, severe depression, anxiety and PTSD.[19] He attended again at outpatients on 20 February 2018 with ongoing lower back pain and left lower limb neurological symptoms. It was decided to continue his use of his back brace for a further six weeks. It was recorded there:
‘‘the patient had ongoing pain but reported improvement in sensation. Lower limb neurological examination showed power of 4/5 throughout with normal tone and reflexes. Sensation was intact and equal throughout. X-rays showed the height of the vertebra had been maintained and alignment was acceptable and maintained. He was to continue wearing his back brace.’’[20]
[16] PCB 58
[17] PCB 59
[18] T32, L18
[19] PCB 73
[20] PCB 59
12On review at outpatients on 3 April 2018, it was noted that he had worsening erectile problems and had had one episode of loss of bladder control.[21] No neurological cause was found for this.
[21] PCB 59
13I interpolate that Mr Christodoulou had by now reneged on his agreement to buy the tow truck. He had given up the idea of starting his own business. In fact, since the date of injury he has not worked.
14By mid-2018, Dr Lolatgis had made referrals to neurosurgeons Associate Professor Goldschlager and Mr Rogers. Neither of them considered surgery warranted.[22] It is to be noted that Mr Goldschlager discussed with the Plaintiff the possibility of surgery[23] however, it was not a recommended course and ultimately Mr Christodoulou decided against it.[24]
[22] PCB 61 Associate Professor Goldschlager took a history of significant pain. See also PCB 251 Mr
Rogers noted chronic pain problems on the background of a healed L1 compression fracture.
[23] PCB 61
[24] T39, L12 – T40, L11
15Pausing there, I record my finding that as a result of the incident Mr Christodoulou sustained an L1 compression fracture that resulted in a 50% loss of vertebral body height.[25] By the time of consultation with Mr Rogers in November 2018 this fracture had substantially healed. I find this fracture was not amenable to surgery and it was not recommended to Mr Christodoulou. I find there was no specific neurological injury affecting the lower limbs or bladder and bowel function. I find that those passing symptoms were most likely the result of the pain Mr Christodoulou was experiencing but this finding is not without doubt given the lack of medical evidence to that effect.
[25] PCB 37 SPECT-CT scanning in October 2018 ultimately showed a 50% loss of vertebral body height
of the L1 disc.
16The symptoms of pain were so significant that Dr Lolatgis referred Mr Christodoulou to a pain specialist, Mr Jason Chou. He saw and examined Mr Christodoulou in September 2018. He took a history of chronic lower back pain and pain in the right flank. When he saw him on 25 September 2018, he noted that he remained in his back brace. He considered that Mr Christodoulou had a low mood with PTSD symptoms.[26] Examination findings showed positive facet joint provocation with tenderness on palpation throughout the lower back. He referred Mr Christodoulou for a multidisciplinary team assessment at the Victorian Rehabilitation Centre.[27] This was meant to encompass weekly physiotherapy in the full pain management program however, it was thought that psychological issues need to be addressed in order to improve the chances of success.[28] As a result, Mr Christodoulou came under the care of psychologist Ms Foster[29] and psychiatrist Dr Vadasseri.[30] Mr Christodoulou continues to see both these practitioners regularly. To summarise their assessment: they did diagnose PTSD symptoms,[31] major depression,[32] obsessive-compulsive disorder (OCD),[33] sleep and memory problems associated with the PTSD[34] and suicidal thoughts.[35] These matters resulted in Mr Christodoulou being placed on a range of medications which he continues until today. These include Sertaline 100mg after breakfast and 100mg after lunch, Prazosin 5mg nocte, Quetiapine XR 200mg 5 pm, Quetiapine immediate release 25mg pm for anxiety and 25 to 50 mg nocte for sleep. Meloxicam 15 mg mane, Panadol osteo prn 2 tds and Zantac 300 mg mane.[36]
[26] PCB 62
[27] PCB 64
[28] PCB 67
[29] PCB 99
[30] PCB 120
[31] PCB 104. See also PCB 120
[32] PCB 103. See also PCB 1209
[33] PCB 110. See also PCB 122
[34] PCB 108. See also PCB 116
[35] PCB 109. See also PCB 116
[36]PCB 133
17Despite this ongoing treatment and medication regime Mr Christodoulou’s pain continued to be unrelenting and severe such that he was admitted for a Ketamine infusion in November 2019. It was unsuccessful in alleviating his pain.[37] The psychiatric condition has largely remained the same since this time being depression, PTSD symptoms, OCD, worsened stutter, suicidal ideation with on occasion definitive suicidal plans, memory difficulty, being socially withdrawn and anxious.
[37] PCB 70
18Turning then to the first of the issues raised by Mr Christodoulou, namely that he is totally incapacitated for work and has been since the date of the incident. The Defendant argues that there are reasons why it should not be accepted that Mr Christodoulou is totally incapacitated. First, that he exaggerates and embellishes the consequences of his injury. The Defendant argues that this can be seen from the following:
I.Mr Christodoulou’s recounting of the circumstances of the incident to doctors in terms which are inconsistent with the contemporaneous notes;
II.Mr Christodoulou’s poor recall of the accident in the witness box which is inconsistent with his recounting to doctors;
III.The evidence of Associate Professor Doherty should be preferred as to his psychiatric condition to that of his treating practitioners and other medical and like reports wherein he states the Plaintiff is prone to embellishment and exaggeration;
IV.The evidence of Dr Speck should be preferred as to his physical capacity to that of his treating and other medical legal reporters; and
V.The evidence of Ms Mutimer, psychologist, should be accepted as to Mr Christodoulou’s occupational capacity in preference to his treating doctors and particularly Dr Macbeth an occupational physician who all opine that Mr Christodoulou is totally and permanently disabled for employment.
The Plaintiff’s Credit
19The Defendant’s case was in large part based on the argument that Mr Christodoulou was embellishing and exaggerating the symptoms of his condition. Having watched Mr Christodoulou give evidence, his demeanour at least, did not support such an argument. He listened carefully to questions and responded in a direct manner. He did not try to evade any question. The transcript will not show, but he genuinely appeared to battle through his stutter which obviously hampered his evidence giving. He did not seek to overstate matters, for example he could easily have given a version of the inccident consistent with the police incident report which is of a traumatic collision, but instead stated that he largely did not recall the incident. This did not suggest a witness seeking to exaggerate or highlight the serious nature of the incident but rather an honest witness doing his very best. On an assessment of his demeanour alone I find he was a credible witness.
20The Defendant focused on a number of specific matters said to show real inconsistency in Mr Christodoulou’s evidence. The first was said to be his evidence in court that he could not recall the circumstances of the incident, yet there was no head trauma recorded at the site and he had given very specific instructions to a variety of doctors about how the incident actually occurred.[38] For example, it was put that on presentation to the Frankston Hospital it was noted he had full recall of events,[39] but that in court he professed no recall of such events.[40] The obvious point of course is that time passes, recall fades and memory at times is overwhelmed by subsequent events. Here, Mr Christodoulou appears in the emergency department at the Frankston and Alfred Hospitals within hours of the incident having been subjected to a very serious event. After that he was subjected to days in hospital, the presence of significant unrelenting pain, the loss of work and relationships and the development of a serious psychiatric condition involving memory difficulty.[41] All of this explains the absence of fine recall of the circumstances of the incident by the time he came to give evidence.
[38] T32, L10
[39] T30, L28 – T31, L1
[40] T32, L3
[41] PCB 46
21The next part of the Defendant’s case was that Mr Christodoulou had in fact given histories to some doctors which are very specific but, it was suggested, exaggerated the circumstances to highlight the incident’s severity and thereby better explain his ongoing symptoms.[42] An example of this was his treating doctor, who Mr Christodoulou saw on 24 January 2018, and recorded a history in the following terms;[43]
‘‘Mr Christodoulou was stationary on his motorbike at traffic lights when he was hit by a car from behind at 90 km/h. In the incident his helmet went through the windscreen and he lost consciousness rolling onto the road. His next memory was two days later at the Alfred Hospital’’.
Similar alleged embellishment was said to occur in recounting histories to Mr Goldschlager,[44] Dr Chou,[45] Ms Foster[46] and Dr Vadasseri[47] given they are so different to the recording in the Victoria Police report which I have found is the best evidence of the occurrence of the incident.
[42] T32
[43] T32, L19 – 29. See also PCB 72
[44] T33, L28. See also PCB 61
[45] T34, L19
[46] T35, L19. See also PCB 100
[47] T35, L25
22The Defendant argued Mr Christodoulou nominated a high speed for the Defendant’s vehicle when impact occurred to heighten the severity of the collision. However, the details regarding the speed of the impact, I find, are broadly consistent with the police report that the speed was “not excessive”. This is in the context of the speed limit at the site of the incident being 90 km/h. Dr Lolatgis and Dr Chou recorded the speed at 90 km/h,[48] Mr Goldschlager simply states that it was high-speed.[49]
[48] PCB 72. See also PCB 62
[49] PCB 61
23The recounting of the head strike is also broadly consistent with the police report set out above which notes the collision with the windscreen
24The Defendant also made something of the fact that Mr Christodoulou claimed his helmet was cracked, yet the contemporaneous ambulance notes recall the contrary. It is hard to resolve this issue given it is unclear how closely the helmet was examined on the scene in a circumstance where Mr Christodoulou got up from the roadway under his own power. What is clear however, is that on attendance at the Frankston Hospital the possibility of head trauma was contemplated as a CT brain scan was undertaken. Overall, the evidence suggests that there was head contact and the potential for head injury in the incident. The discrepancies as to the level of impact (and its effect on the helmet) do not seem to take matters much further.
25However, the recordings of these doctors as to a period of loss of consciousness is largely unsupported by the contemporaneous recordings. The Defendant focused heavily on this point to further its argument that Mr Christodoulou embellished the circumstances of the incident.
26On the hospital notes there is no period of lost consciousness. In contrast, on the history taken by a variety of doctors there appear to be very significant periods of loss of consciousness. For example, Dr Vadasseri notes loss of consciousness for about a week,[50] Dr Ingram refers to loss of consciousness for 2 to 3 days.[51] In evidence, Mr Christodoulou stated that he could not remember giving such histories to the doctors.[52] It is likely, I find, that Mr Christodoulou is significantly confused about this time immediately after the incident and his time in hospital. I have already set out the effect time and his unremitting pain have likely had on his memory. These are I find, significant factors which explain his poor recall. To this must be added the fact that he had a significant psychological injury requiring serious medication. Dr Vadasseri gave evidence that his psychiatric condition inevitably has affected his memory and is in fact a symptom of his condition.[53] His physical injury required serious medication during his inpatient stay and even on discharge he was on morphine-based painkilling tablets such as Endone.[54] This no doubt had a deleterious effect on his recall of those days. His friend, Mr Krikis, gave evidence about visiting him in hospital during this period. He noted that Mr Christodoulou was in a pretty bad way[55] and was “sort of tripping in and out of consciousness”.[56]
[50] PCB 120
[51] PCB 143
[52] T36 – T38
[53] T114
[54] PCB 56
[55] T125, L4
[56] T125, L7
27Overall, while there are inconsistencies which the Defendant can point to, I do not consider them significant. They cast doubt on Mr Christodoulou’s ability to remember fine detail of the incident and his hospitalisation but they do not go so far as to support the Defendant’s argument that Mr Christodoulou is embellishing and exaggerating his case.
28The next matter said to show exaggeration was a recording by Dr Ingram that Mr Christodoulou had been told that an operation may assist his back condition but there was a risk of paralysis which resulted in Mr Christodoulou declining the operation.[57] In evidence, Mr Christodoulou stated he could not remember who advised him of this potential for surgery and the risk of paralysis. This was said, by the Defendant, to be unbelievable. The short point is that Mr Goldschlager, in his notes to the general practitioner, mentions the possibility of surgery. It is self-evident that such surgery did not occur. It is understandable, I find, that Mr Christodoulou would not remember a passing possibility of surgery from 2018. I find there is no substance in the Defendant’s argument on this point. Further, the Defendant argued that the fact Mr Christodoulou could never remember being told his fracture had healed despite Mr Rogers opinion in late 2018[58] was unbelievable. Given what I have previously noted about Mr Christodoulou’s memory and his situation as of November 2018 being subject to psychiatric treatment and strong medication, his lapse of memory about this matter is understandable and I do not consider it furthers the Defendant’s argument significantly.
[57] PCB 151. See also T39, L15
[58] PCB 251
29It was also suggested that the failure to go through with the tow truck purchase in February 2018 indicated that Mr Christodoulou was never interested in returning to work but rather was exaggerating his condition.[59] There is not much in this argument, I find. First, the Plaintiff was in the post discharge phase on strong medication which was not reducing his levels of pain when he made the decision not to go through with the purchase. He was in no position to have confidence about his future. Second, he remained in the back brace throughout January and February 2018. Medically, it is doubtful whether he would have been able to operate the truck. It was put to him however, that he could have just bought the truck and kept it until he was better. In a forthright, earnest, rather laconic way, Mr Christodoulou explained why the proposition did not make sense. His response was that: ‘yeah, but $50,000 sitting in my driveway, it’s a bit of money.’[60] It is of course an entirely rational business explanation for why he did not proceed with the truck purchase. I accept it.
[59] T50 – T51
[60] T52, L10-11
30A major attack was mounted by the Defendant based on the reporting of Associate Professor Doherty. He considered that Mr Christodoulou had embellished and exaggerated his condition. Associate Professor Doherty was of the opinion that as a result, certainly at the time of his examination in January 2021, Mr Christodoulou had no diagnosable psychiatric condition and was, from a psychiatric perspective, capable of work. To further this argument, the Defendant noted that several other practitioners had noted evidence of exaggeration at least, for instance Dr Foster,[61] Dr Regan noted an absence of effort on testing[62] and Mr Speck noted avoidance behaviour.[63]
[61] PCB 103
[62]DCB 91
[63] DCB 39
31Dealing with Associate Professor Doherty first. There are a number of reasons not to prefer or rely on his evidence. First, he has seen Mr Christodoulou on only one occasion. Both Ms Foster and Dr Vadasseri have treated Mr Christodoulou over nearly three years. Dr Vadasseri has seen Mr Christodoulou on over 50 occasions. Neither of them considered he was exaggerating or embellishing. They were acutely aware of his psychiatric condition and did not consider that it was “faked” or exaggerated. Their long involvement and reporting over a long period give a thorough insight into Mr Christodoulou’s condition. Further, Dr Vadasseri was called for cross examination purposes and did not waiver in her view that Mr Christodoulou was an honest person, truthfully recounting his symptoms.[64] That evidence is to be preferred to that of Associate Professor Doherty. Next Dr Lolatgis, Mr Christodoulou’s treating doctor, has seen him since before the incident. He started treating him in 2006 and has continued to manage him. Dr Lolatgis’ evidence is that there is no sign of embellishment. He was called for cross examination and adhered to this view.[65] He gave evidence in a measured and controlled manner. He was taken to discrepancies in the history of the period of loss of consciousness and while he accepted such a discrepancy, explained cogently why it did not affect his opinion that Mr Christodoulou was a person of truth. Fourth, Dr Ingram saw and examined Mr Christodoulou on 3 occasions. He was a joint medical examiner instructed by the parties. His evidence was from the position of a non-treating psychiatrist and he made no comment consistent with Associate Professor Doherty. Fifthly, the evidence of Mr Speck, that there was avoidance behaviour must be looked at in context. His comment, particularly in response to Question 6 focuses on “appropriate psychological interventions to assist in minimising or removing his avoidance behaviour”.[66] This is in reality an acknowledgment that there is avoidance behaviour but that it arises from the psychological state of Mr Christodoulou – which arises as a result of the incident itself. This is a consequence of the Defendant’s action not evidence of exaggeration. Lastly, the evidence of Associate Professor Doherty given in court was unimpressive. He was called for cross examination. He gave evidence that Mr Christodoulou had exaggerated the loss of consciousness experienced at the time of the accident and that such was evidence of an ongoing pattern of behaviour since that time of deliberate exaggeration. However, Senior Counsel for Mr Christodoulou took Associate Professor Doherty to his own report where he took a history from Mr Christodoulou. That history was recorded by Associate Professor Doherty in the following terms: “He said he is not sure if there was a loss of consciousness”.[67] He was asked then how he came to record in his report that;[68]
“However, he now said to me that he flew through the air, collapsed in an unconscious state, with an inability to remember details immediately after the transport accident during his admission to The Alfred”.
Faced with this obvious inconsistency Associate Professor Doherty resorted to stating that he must have been told of the loss of consciousness but had not written it down.[69] It was an unconvincing answer. I do not accept it.
[64] T103, L28 – T104, L1
[65] T96, L22 – T97, L2
[66] DCB 40
[67] DCB 6
[68] DCB 13
[69] T56, L27 – L29
32He was then taken to the history he had recorded of Mr Christodoulou at the time of impact being that he “flew over the car” and “hit the back of the car” and landed on the road.[70] Associate Professor Doherty considered this to be another example of egregious exaggeration and embellishment.[71] Senior Counsel then took him to the Victoria Police report of the incident which was largely consistent with Mr Christodoulou’s instructions set out above. He accepted that it was consistent with the instructions Mr Christodoulou had given him.[72] However, he attempted to cling to his assertion that this revealed a man who was exaggerating and embellishing because this history was inconsistent with that given to Dr Vadasseri. It is to be remembered that Dr Vadasseri had said in evidence that Mr Christodoulou had significant memory problems as a result of his psychiatric problems.[73] Overall, Associate Professor Doherty struck me as a witness who had not accurately recorded Mr Christodoulou’s history to him and then proceeded on an erroneous basis to form his assessment. Once that assessment was made, even when the faults in his recording of significant historical matters were pointed out, it did not cause him to alter or even consider altering his view. It clearly, in my view, should have. For all those reasons, the opinion of Associate Professor Doherty must be put to one side and the evidence of Dr Vadasseri, Ms Foster, Dr Ingram and Dr Lolatgis preferred.
[70] DCB 6
[71] T157, L23 – L29
[72] T158, L3 – L10
[73] T114
33While there are some differences in their ultimate diagnoses, I prefer the evidence of Dr Vadasseri in the end as the treating specialist psychiatrist. I note however that her findings are largely supported by the other practitioners just referred to. As a result I find (in addition to his physical injury) that Mr Christodoulou has sustained a PTSD with major depression, obsessive compulsive disorder, memory problems and a worsening of his pre-existing stutter as a result of the incident.
34Turning then to an assessment of Mr Christodoulou’s general damages. At the time of the incident Mr Christodoulou was a relatively young man. He was entirely independent and had a range of pursuits that he enjoyed with friends. These were primarily physically based activities such a deer hunting, four-wheel driving and rock climbing. He maintained his own home and worked a physical job. He was by all accounts a happy, sociable man who was endeavouring to start his own business. All this has been taken away from him by reason of the physical and psychiatric injuries he has suffered. It would be tempting to focus on the significant back injury he has had and consider his problems would be ameliorated by a healing of the fracture, however, the evidence shows that it is the psychiatric decompensation that has come to wreak the greatest damage to his life. His memory is slow and unreliable. He has developed OCD and has a range of behaviours that are odd. The development of his OCD is a very peculiar feature of this case and it manifests as experiencing intrusive thoughts related to a fear of completing suicide.[74] His stutter has worsened to the extent that talking causes embarrassment. Watching him give evidence gave a true impression of this difficulty and likely social embarrassment this would cause. During his evidence it could be seen how his face would grossly distort in the attempt to pronounce words. It was a real benefit to see the evidence given. This has led to greater withdrawal from life as he seeks to escape social embarrassment. It is compounded by the feelings of depression, worthlessness and despair. He has lost hope. His friend Mr Krikis spoke of the effect on his long-time friend with great sadness. They went from a happy mateship enjoying the outdoors to a situation where Mr Krikis had to convince Mr Christodoulou to hand over his firearms to him for safe keeping as Mr Krikis was so worried his friend had become a suicide risk. It was powerful evidence. I accept it.
[74] PCB 116 at [10]
35The Defendant argued that there was scant evidence of suicidal ideation let alone planning. They relied on Dr Vadasseri’s reports which largely note that there was no suicidal thoughts. In contrast to this are the recordings in Ms Foster’s reports and also that noted by Dr Ingram at the time of those attendances. However, the most compelling evidence comes from Dr Lolatgis and Mr Krikis. Both gave independent evidence of Mr Christodoulou contemplating and planning suicide by using a rope in his garage[75] or use of his firearms.[76] I accept that evidence and find it demonstrates how significant the psychiatric injury for Mr Christodoulou is. It is also the reason why he remains on what must be considered high doses of Zoloft – accepting the evidence of Dr Vadasseri[77] in preference to Associate Professor Doherty, and sleeping medication along with the long period of time over which he has had significant psychiatric and psychological treatment. There is no indication from his treating practitioners that such treatment will cease. For a man of his age this is significant.
[75]T96, L28 – T97, L2
[76]T129, L27 – T130, L2
[77]T102, L21 – 23
36The evidence as to his physical state is largely noncontroversial. I have set out some of the impacts it has on him in terms of pain but it is also the case that while he cannot do his adventurous outdoor pursuits he remains impacted in his domestic and occupational life. For example, around the home he can perform domestic tasks but they take an inordinate amount of time. He is limited in how long he can drive and walk to very short periods. It was suggested that Facebook posts showed him on a trip to Lake Eildon and this was in contrast to the restrictions he suggested apply. However, this was only one isolated occasion and show no more than him standing in front of some vegetation. It is not illustrative of real inconsistency in the evidence he gave as to his restrictions.
37Synthesising all those matters I award the sum of $350,000 for general damages.
38As to loss of earning capacity damages, I find that Mr Christodoulou is totally incapacitated from the date of the incident to the age of 67. I come to this conclusion for the following reasons. First, his treating practitioners, whose evidence I accept, are of this view. As set out previously, Dr Lolatgis, Ms Foster and Dr Vadasseri have all been treating Mr Christodoulou for a considerable period and have made this assessment from a thorough understanding of his clinical course. Secondly, Dr MacBeth, who is the only occupational physician to give evidence in this case has come to the same view. She reviewed all the material from his treating practitioners and examined Mr Christodoulou herself. Her opinion must be preferred to that of Ms Mutimer, who is a psychologist and was called in aid by the Defendant on the argument as to Mr Christodoulou’s occupational capacity. Third, the evidence of Mr Speck is one which recognises the physical restrictions of Mr Christodoulou but does not really deal with the psychiatric condition he has.
39It was said by the Defendant that once the litigation has ended there is likely to be some improvement in Mr Christodoulou’s condition such that he will return to work. This was put to Dr Vadasseri and while she accepted he would get benefit from a resolution of this litigation she did not go so far as to say this would revive his work capacity. As I have indicated, Associate Professor Doherty’s opinion must be put to one side. It leaves the case on capacity with evidence almost wholly supportive of the proposition that Mr Christodoulou is totally incapacitated to age 67. I accept that preponderance of the evidence and find that Mr Christodoulou is totally incapacitated for work to age 67.
40It was largely agreed and I find that the Mr Christodoulou’s average gross earnings in the two financial years prior to the transport accident were $64,323 per annum. It was agreed between the parties that this equates to average earnings of $1,236 gross per week or on average $992 net per week during the 2016 and 2017 financial years.
41In addition, Mr Christodoulou received superannuation at an average of $117 per week.
Past Loss of Earnings
42Mr Christodoulou has suffered a total past loss of earnings from 24th June 2019 to 7th June 2021 being 102 weeks at the rate of $992 net per week which equates to $101,184 and $11,934 for superannuation being a total past loss of earnings of $113,118.
Future Loss of Earnings
43Mr Christodoulou is currently 48 years of age. The 6% future multiplier to age 67 is 599.5. The parties agreed the figure of $1000 net per week and $118 net per week for superannuation be used to calculate the future loss of earnings. Applying a discount of 15% for vicissitudes gives a total future loss of earnings of $569,704.
44There was a submission that 15% was perhaps the incorrect discount rate given Mr Christodoulou was young and would likely recover after litigation. In that circumstance the Defendant submitted a Farlow[78] allowance was appropriate. There was no evidence to support that submission and I do not accept it.
[78]Victorian Stevedoring v Farlow [1963] VR 594
45I will give judgment for the Plaintiff in the following amounts:
(a) General Damages $350,000;
(b) Past Loss: $113,118;
(c) Future Loss: $569, 704.
In total this is the sum of: $1,032,822.
46I will hear the parties on any ancillary orders and the question of costs.
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