Toni Lee Collins v Kristian Staminirovitch

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0036

TONI LEE COLLINS	Applicant
V
KRISTIAN STAMINIROVITCH	Respondent

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JUDGES:	SANTAMARIA, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2017
DATE OF JUDGMENT:	23 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 342
JUDGMENT APPEALED FROM:	Collins v Staminirovitch (Unreported, Supreme Court of Victoria, T Forrest J, 14 March 2017)

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ACCIDENT COMPENSATION – Appeal – Transport accident – Personal injury – Quantum of damages for pain and suffering and pecuniary loss – Jury awarded $100,000 in damages for pain and suffering and $70,000 for pecuniary loss – Whether amounts awarded manifestly inadequate – No error – Verdict reasonably open to the jury on the evidence – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Hore-Lacy SC with Ms C Spitaleri	Arnold Thomas & Becker
For the Respondent	Mr J Ruskin QC with Mr D C Oldfield	Solicitor to Transport Accident Commission

SANTAMARIA JA
KYROU JA
KAYE JA:

The applicant commenced proceedings in the Trial Division of this Court claiming damages in respect of injuries that she sustained in a motor vehicle accident on 30 January 2010. Before the commencement of the trial of the proceeding, the respondent admitted liability, and the trial proceeded before a judge and jury as an assessment in respect of the applicant’s claim for pain and suffering damages and pecuniary loss damages. After a trial that lasted three weeks, in which 15 witnesses gave evidence, and eight medical reports were read into evidence, the jury assessed the applicant’s pain and suffering damages in the sum of $100,000, and her pecuniary loss damages in the sum of $70,000. The applicant now seeks leave to appeal the verdicts by the jury in respect of both heads of damages.

Background

The applicant was born on 31 August 1979. Having left school at the end of Year 10, she completed a hairdressing apprenticeship. She then moved to Perth in approximately 1999, where she undertook further training with Toni and Guy Hairdressers, before returning to Wangaratta to commence employment at a hairdressing salon.

Subsequently, in approximately 2000 or 2001, the applicant opened her own hairdressing salon in Wangaratta, which she conducted for approximately one year before she sold it. She then moved to Henty, where she opened another hairdressing salon. The applicant operated that salon for one year until she broke her wrist in an accident. After she sold that salon, she assisted her parents with their import/export business. In 2006, she gave birth to her first child, and she took approximately 18 months off work after the birth.

In approximately March 2009, the applicant purchased a Hungry Jack’s franchise in Wangaratta, and she ran that franchise until October 2009. During that period, issues arose between herself and the franchisor, Hungry Jack’s Australia Pty Ltd (‘Hungry Jack’s’) ultimately removed her from the franchise in October 2009.

As a consequence, Hungry Jack’s commenced legal proceedings against the applicant in New South Wales in 2010. Subsequently, those proceedings were discontinued, and Hungry Jack’s commenced fresh proceedings against the applicant in Victoria in 2011. In those proceedings, Hungry Jack’s claimed damages against the applicant in the sum of $720,000, and the applicant made a counterclaim for damages against Hungry Jack’s. Ultimately, that proceeding was resolved at trial on 8 April 2014. In essence, Hungry Jack’s agreed to pay the applicant the sum of $170,000 in settlement of the claims that she made in her counterclaim.

In the meantime, on 30 January 2010, the applicant was involved in the accident that was the subject of the present proceeding. On that day she was a front seat passenger in a vehicle driven by the respondent, who had previously been her partner, along the Benalla Chesney Road, Benalla. Their four year old son was seated in the back seat of the car. The respondent’s vehicle was following another vehicle and a truck. There was a lot of dust on the road so that it was difficult for the respondent to see clearly ahead of him. As a consequence, the respondent’s vehicle collided with the rear of the truck. In her evidence the applicant estimated that at that time the respondent’s vehicle was travelling at a speed of approximately 80 to 100 kph. She said that her seatbelt failed to lock, as a consequence of which her face hit the dashboard and/or the windscreen of the car. Although an ambulance was called to the scene, her parents arrived before it, and they drove the applicant to the Wangaratta Hospital, where she underwent radiological examination that disclosed comminuted fractures of the nasal bones. She was then discharged home into the care of her general practitioner, Dr Christina Tan.

The applicant saw Dr Tan on 1 February 2010, and Dr Tan referred her to Mr David Chong, a plastic surgeon. On 11 February 2010, Mr Chong, under a general anaesthetic, manipulated the applicant’s nasal bones and septum. Subsequently, over the following four years, the applicant underwent five further procedures, under general anaesthetic, to repair her injured nose, namely:

(a) On 25 October 2010, Mr Chong performed a closed septorhinoplasty with a turbinectomy.

(b) On 4 August 2011, Mr George Dimitroulis, an oral and maxillofacial surgeon, performed a right temporo-mandibular joint arthroscopy.

(c) On 30 August 2012, Mr Damon Thomas, a plastic and reconstructive surgeon, performed a rib graft augmentation rhinoplasty.

(d) On 27 May 2013, Mr John Kennedy, a surgeon specialising in otorhinolaryngology, performed a further augmentation rhinoplasty with septoplasty and bilateral inferior tubinectomies.

(e) On 21 July 2014, Mr Kennedy performed a further rhinoplasty.

The applicant gave evidence that, at the time of the motor vehicle accident in January 2010, she was establishing a cosmetic adventure business sending people on cosmetic surgery holidays to Malaysia, and, in addition, she was renovating a property to develop it into a camp for disadvantaged children and children with cancer. She said that it had been her intention to continue to work, and that if her business ventures did not succeed, she would return to hairdressing in order to earn her income. Following the accident, the applicant has not returned to any paid employment. She re-partnered with the respondent in early 2016, and gave birth to her second child on 11 November 2016. In her evidence, she stated that she still has plans to establish a camp for children with cancer, but she does not believe that she could run it on her own.

The claim and issues at trial

The plaintiff claimed that, as a result of the accident, she suffered from a number of injuries, including a head injury, facial injury, reduced sense of smell, hearing loss, headaches, visual impairment of the right eye, dental injury, altered sensation in the face, scarring, and injuries to the right shoulder, spine, neck and right knee. In addition, she claimed that she sustained psychological injuries, including a post-traumatic stress disorder (‘PTSD’), anxiety and depression, impaired memory and concentration, and an adjustment disorder.

The applicant and the respondent each gave evidence. In addition the applicant called a number of specialist practitioners, including Dr Tan (general practitioner), Dr Ye (general practitioner), Mr Chong (plastic surgeon), Dr Byrne (neuropsychologist), Mr Kennedy (ENT surgeon), Mr Silverstein (ENT surgeon), Associate Professor O’Day (ophthalmologist) and Dr Weissman (psychiatrist). Her counsel also read into evidence medical reports prepared by Ms Anne Lester (audiologist), Mr Dooley (orthopaedic surgeon), Mr Kudelka (orthopaedic surgeon), Ms Crutchfield (psychologist), Mr Thomas (ENT surgeon), Mr Dimitroulis (maxillofacial surgeon) and Dr Sutcliffe (occupational physician).

The respondent called evidence from Dr Gale (ophthalmologist), Mr Drury (neuropsychologist), Associate Professor Stark (neurologist), Associate Professor Doherty (psychiatrist) and Dr Webb (ENT surgeon). His counsel also read into evidence the report of Mr O’Brien (orthopaedic surgeon).

A significant aspect of the applicant’s claim concerned the nature and extent of the psychological condition that she sustained as a result of the accident and as a response to her injuries. The principal evidence concerning that aspect of the applicant’s claim was given by Dr Weissman on behalf of the applicant, and Associate Professor Doherty on behalf of the respondent. We shall set out their evidence, in more detail, later. In essence, Dr Weissman examined the applicant on 4 August 2014 and on 14 October 2016. Following those examinations, he diagnosed the applicant as suffering from a chronic major depressive disorder with anxiety of moderate intensity or severity. He considered that the applicant was then incapacitated from employment.

Associate Professor Doherty examined the applicant on 19 December 2016. He also diagnosed the applicant as suffering from a major depressive disorder, which was mild in its severity. He considered that the condition significantly interfered with her plans to establish a camp for children with cancer, and at that time she had a partial capacity for employment which was suitable. Associate Professor Doherty also considered that the prognosis at that time was favourable.

In February 2017, the solicitors for the respondent provided to Associate Professor Doherty an affidavit sworn by the applicant in the proceedings commenced against her by Hungry Jack’s and three newspaper articles concerning those proceedings. Having read those documents, Associate Professor Doherty altered his view concerning the severity of the applicant’s psychiatric condition, and its effect on her earning capacity and on her domestic and leisure activities. He considered that the materials, provided to him, demonstrated that the applicant had a degree of motivation and cognitive competence that was not compatible with the range of symptoms and impairments that she had had reported to him in December 2016. He therefore concluded that the applicant’s psychological condition did not constitute a significant impairment to her capacity to undertake suitable employment, or to engage in her domestic and leisure activities.

Proposed grounds of appeal

The applicant seeks leave to appeal on two grounds, namely:

(1)The amounts awarded by the jury for:
(a)pain and suffering;
(b)pecuniary loss.

were manifestly inadequate and not reasonably open on the evidence.
(2)In making its award for pain and suffering and pecuniary loss damages the jury erred in not rejecting the evidence given by Associate Professor Doherty concerning the plaintiff’s injuries and the impact of those injuries on her pain and suffering, enjoyment of life and earning capacity.

The applicant’s affidavit and the newspaper articles

Before outlining the evidence called at trial, it is convenient, first, to summarise, briefly, the contents of the applicant’s affidavit in the Hungry Jack’s litigation, and the newspaper articles, that were the subject of the second report produced by Associate Professor Doherty.

The affidavit was sworn by the applicant in May 2012 in proceedings commenced by Hungry Jack’s against TLC Company Pty Ltd (‘TLC’) as first defendant and the applicant as second defendant. TLC was the corporate vehicle through which the applicant had conducted the franchise at Wangaratta.

In the affidavit, the applicant stated that she had so far spent in excess of $40,000 trying to defend herself in the proceedings commenced by Hungry Jack’s in New South Wales and subsequently in Victoria. She said that those costs were wasted when the new proceeding was started, and she had to engage new lawyers, because she was in dispute with her previous lawyers. As a consequence, she had to try to prepare her own defence that was lodged in January 2012. She did so based on a draft defence counsel had prepared in the New South Wales proceedings. The applicant stated that after attending a directions hearing in February 2012, she endeavoured to find new solicitors. For that purpose, she had discussions with a firm of solicitors, and she paid that firm for work performed on the initial defence and counterclaim. The solicitors were unable to engage counsel, and subsequently, the solicitors told the applicant they would not do any further work for her without further funding. As a result, she had to appear with her father at a directions hearing on 7 May 2012, in which the plaintiff in those proceedings applied to have her defence and counterclaim struck out.

In the affidavit the applicant further stated that since that hearing she had endeavoured, without success, to engage a barrister directly to assist her, and that she no longer had a solicitor acting for her. She said that she ‘… collected all documentation from previous lawyers so that I can work through this together with any barrister who I can find to help me’. She said that she would prefer to engage a barrister directly and she did not intend to employ any lawyers if the court approved a barrister working directly for her. The applicant then concluded (in paragraph 11 of her affidavit) as follows:

I ask that I be allowed to act for TLC in defending this matter. While the case is complex and difficult for me to manage, I hope to be able —with the Court’s approval — to engage a barrister to act directly and run the case for both me and TLC. In any event I will be conduct (sic) my own defence and in those circumstances it is fairer and reasonable that I should be allowed to represent TLC who will otherwise go unrepresented. In a practical sense this should not affect the time or administration of the case.

The newspaper articles, provided to Associate Professor Doherty, and tendered in evidence, described the nature of the proceedings, and the nature of the claim by Hungry Jack’s against the applicant, and her counterclaim. The articles detailed the allegations made by Hungry Jack’s, and the counter allegations made on behalf of the applicant, in those proceedings. One article summarised some of the evidence given by the applicant in the proceeding, in which she described the circumstances in which she had entered into the franchise.

Summary of evidence

In order to address the proposed grounds of appeal, it is necessary, first, to summarise the relevant evidence in the trial. As mentioned, a substantial number of witnesses gave evidence, so that the following summary is, of necessity, somewhat lengthy.

The applicant gave evidence about her background, and the circumstances of the accident, as earlier described. She said that as a consequence of the accident she lost consciousness. She could hear her son screaming. She said that her ear was ringing, she had blurred vision, and her head was ‘excruciating’. She briefly described the six surgical procedures performed on her, and she said that after each operation she would have bruising for at least two weeks. Notwithstanding the procedures, she has a lump on her nose, and she has altered sensation. She said that she has been very self-conscious about how she looks and that has affected her self-esteem. She said that her injury to her nose had affected her sense of smell, and she had problems with breathing. She continued to suffer a lot of pain in her ear. She said that her hearing feels as if someone has a cup over her ear and it sounds muffled. She said that she found it hard to make out conversations if there is a lot of background noise. She also experienced ‘a noise’ in her ear every now and then. In addition, after the accident, she had blurring of the vision in her right eye. She said that she suffered balance problems, and that she had had a number of falls since the accident. She said, ‘I get dizzy and off balance’. The applicant stated that in addition, as a result of the accident, she had injured her right arm, and that she experienced a loss of feeling, movement and strength in it, so that she had difficulty in undertaking routine tasks such as doing up her bra, lifting groceries, and carrying the baby capsule. She had suffered pain in the jaw and teeth. She also said that her right shoulder had drooped somewhat since the accident.

The applicant further stated that since the accident she had a number of psychological issues, and in particular that she had experienced a number of panic attacks since the last surgical operation. Those attacks initially occurred a couple of times a week and subsequently they increased to about four times per week. When they occurred she was overtaken with fear and she could not breathe. Her general practitioner had prescribed psychiatric medication, namely Serepax and Lexapro. She continued to suffer nightmares of the sound of metal crunching and the scream of her son. As a result, her sleep was disturbed. The applicant stated that she had problems with her memory, and on a number of occasions she had left the bath running for her son as a result of which the house had been flooded. She also had difficulty cooking because on occasions she had forgotten to turn off the oven.

The applicant stated that since the accident she had undertaken a social entrepreneurial course in 2016. That course was relevant to her camp for cancer children. She said that she struggled doing the course, and she felt that she was not absorbing the information very well. She had also assisted the respondent in his catering business, but she had struggled in doing so.

In cross-examination, the applicant stated that before undertaking the social entrepreneurial course, she had driven to Glenrowan to make inquiries about it. She agreed that in order to qualify to undertake the course, she had had to produce a business plan as to how she was proposing to run the camp. That plan set out the cost of the business and what she expected to earn from it. She said that she undertook the course in Wangaratta and in Myrtleford between August and November 2016.

The applicant was then cross-examined about the litigation involving the Hungry Jack’s franchise. She said that she had had assistance with what she was to do in the County Court from a friend of her uncle, who was a barrister. She agreed that she had appeared at four directions hearings on her own behalf and on behalf of TLC.

The applicant was further cross-examined on the basis that she had told Dr Weissman and Dr Gale that she had sold the business to Hungry Jack’s. She denied that she had told those doctors that she had sold the business. The applicant was also cross-examined about the contents of the affidavit sworn by her in those proceedings. She said that the affidavit was true and correct. She said that she had collected approximately eight boxes of documents from her solicitors. She agreed that she had lodged the defence and counterclaim in the County Court, and that she had signed it. The applicant agreed that the counterclaim made by her contained a detailed list of defects that she alleged in the equipment and the building provided by Hungry Jack’s. She agreed that she gave evidence about those matters at the trial of the proceeding. She also agreed that she had appeared in interlocutory proceedings, but she said that her father also assisted her in them. In addition, she attended at two mediations in the proceeding. In the first mediation, she flew to Sydney to speak to Hungry Jack’s to try to resolve the dispute. She was assisted by a lawyer at the second mediation.

The applicant also agreed that in April 2014 she registered a trading name for the children’s camp, but that it was de-registered in December because of a lack of activity.

The applicant was cross-examined about the treatment that she had received from psychologists. She said that she had been referred to a psychologist (Mr Barnes) in Shepparton, but she had only seen him for one visit. In early 2016, she attended another psychologist, Teagan Podubinski, but she ceased to do so when Ms Podubinski moved to another district. She was then referred by her general practitioner to a mental health nurse, but she considered that that nurse was not able to provide appropriate assistance. She said that, since then, her general practitioner had been treating her for psychological problems, and she had seen him once per month.

The applicant stated that in the years 2004 to 2008 her only income was from Centrelink, with the exception of an amount of $811 that she also earned in 2004 to 2005 by looking after a hotel in Myrtleford. In 2008 to 2009, she was paid approximately $20,000 as wages by TLC for working in the Hungry Jack’s franchise. She said that after she had separated from the respondent in 2006, they had remained friends, and that in February 2016 they had resumed their relationship. She also agreed that about three years before the trial (that is in about 2013) she went on a cruise with a girlfriend for her 30^th birthday. When cross-examined about her involvement in the Hungry Jack’s litigation, she said it was a bit stressful but not distressing.

The respondent gave evidence on behalf of the applicant. He said that before the accident the applicant was very sociable and very active, attending concerts and movies, and going camping and fishing. She also had a very good memory and was a happy person. However, since the accident she had been forgetful, she lacked energy, and she was very self-conscious about the shape of her nose. He said that she had suffered from a panic attack, and that she became upset easily over minor matters.

Dr Christina Tan, a general practitioner in the SIA Medical Centre, gave evidence that on 1 February 2010 the applicant consulted her concerning the car accident. A CT scan of her brain was normal, but it disclosed extensive fractures to the nasal bones. Dr Tan referred the applicant to Mr Chong for treatment. Dr Tan then gave detailed evidence of attendances that she had with the applicant between February 2010 and January 2012, after which Dr Tan left the practice. She gave evidence of a number of symptoms described by the applicant during that time, including ongoing headaches, right ear pain, numbness to the lower face, loss of hearing in the right ear, blurring of the vision in the right eye, and problems with balance. The applicant also had problems with her short term memory, and she was feeling depressed. Dr Tan prescribed medication, and referred the applicant to a number of specialists, including an ear, nose and throat surgeon (Mr Guiney). In December 2010, the applicant also presented with complaints of neck, shoulder and back pain.

In cross-examination, Dr Tan agreed that the applicant did not make any complaint of neck, shoulder or back pain before December 2010. Dr Tan said that as at November 2011, no psychological conditions had become apparent. She said that at that time the applicant had ongoing chronic pain of her entire face that was being treated by specialists, and that she was complaining of permanent partial hearing loss, right jaw pain radiating to her head, and a blocked nose. Dr Tan noted that the applicant saw another medical practitioner at the practice in May 2014, who noted that the applicant was feeling overwhelmed, had difficulty concentrating, and was feeling depressed. Dr Tan stated that those complaints were quite different to the complaints that she had recorded up to her last attendance on the applicant in January 2012.

Dr Ye, who was employed by the Ovens Medical Group, gave evidence that she had attended the plaintiff as her general practitioner from December 2014 until June 2016. When she first saw the applicant on 24 December 2014, the applicant had a history of anxiety and PTSD. She reported panic attacks on driving a vehicle and she suffered from disturbed sleep. In the course of further consultations during the next 18 months, the applicant also complained of back pain affecting the lumbar spine, pain and stiffness in the neck. In cross-examination, Dr Ye stated that, in March 2015, she considered that the applicant’s main disability was her mental health condition, which Dr Ye considered was PTSD as with associated depression and anxiety. She considered that, with appropriate medication and ongoing psychological counselling, the applicant would be able to manage her daily activities in appropriate employment and in the near future. She considered that the applicant was capable of undertaking part-time less physically demanding employment.

Mr Chong gave evidence that when he first consulted the applicant on 10 February 2010, she had a significant fractured nose causing physical deformity and functional obstruction. He then advised the applicant she would likely need several operations and that ultimately her nose would not be restored to its previous condition. Mr Chong described the two procedures that he performed on the applicant.

The report of Mr Damon Thomas (the plastic and reconstructive surgeon) was read in evidence. Mr Thomas stated that he examined the applicant on 16 April 2012, when she complained of left sided fullnes, an obstructed airway, and lack of dorsal prominence of her nose and asymmetry. He said that as a result of the rib graft augmentation rhinoplasty with septoplasty performed by him in August 2012, the applicant had improvement in her inadequate nasal dorsum and cosmetic appearance. However, over time the rib graft warped, and, in January 2013, Mr Thomas recommended that a further contour refinement be undertaken.

Mr Kennedy (the specialist otorhinolaryngologist) stated that the applicant first consulted him in May 2013, following the rib graft procedure undertaken by Mr Thomas. On examination, she had a deviation of the nasal septum with large turbinates, and a bony hump on the nose with concavity below it. Her nose was pushed to the left side and the graft was protruding to the left side more than to the right, resulting in a nasal obstruction. The applicant had had an investigation of the hearing loss, tinnitus and balance problem that she complained of, and that investigation showed that she had cochlear hydrops in the left ear. Mr Kennedy explained that that was a condition where there was too much fluid in the inner ear caused by poor blood supply. It was treated by medication. The condition can affect balance so that patients can become dizzy or get vertigo.

Mr Kennedy described the operation that he performed on 27 May 2013. He said that it was a successful operation, and that the applicant had a good result in the repair of her airways. While there was still a lot of swelling, the appearance of the nose was good. Mr Kennedy saw the applicant again on 27 June 2013. She again had an excellent nasal airway, the appearance of her nose was good, and she was very happy with the cosmetic appearance, and the fact that she could now breathe well through her nose.

Mr Kennedy reviewed the applicant in September 2013. At that stage he considered that, unless there was ongoing absorption of the graft, there would not be any need for further nasal surgery. The applicant had a good clear nasal airway and a satisfactory cosmetic result. Mr Kennedy expected the prognosis to be good for the airway and the appearance of the nose. Her symptoms of cochlear hydrops had settled on medication and they should not be of further concern.

In June 2014, Mr Kennedy again saw the applicant. The applicant said that over the last five or six months the lump on the dorsum of the nose had become deformed. On examination, the superior aspect of the cartilage had curved up and the applicant needed to have a rhinoplasty in order to reduce it. Mr Kennedy performed that second rhinoplasty on 21 July 2014. On review one month later, he recorded that the applicant had a good cosmetic result, but there was still a little swelling with scar tissue under the skin over the left nasal bone. However, her airway was good, and overall it was a satisfactory result.

Mr Kennedy last saw the applicant on 5 March 2015, when she was having difficulty breathing through her left nostril. Mr Kennedy recommended that she would probably need revision surgery with a bony vault rhinoplasty, as the nasal bone on the left side had sprung out. She still had problems with the deformity of the nose. She also had a loss of sense of smell which would not return, and cochlear hydrops.

In cross-examination, Mr Kennedy stated that, in September 2014, he had reported that, as a result of the operation in August 2014, the applicant’s airway was good and the deformity, that she had from the previous implant, had been corrected. Mr Kennedy then regarded the result as being very satisfactory, and he expected the prognosis to be good. Mr Kennedy stated that in May 2015 he reported that the applicant complained of a loss of sense of smell, which was not uncommon after this sort of injury. Mr Kennedy found that there was a total loss of smell (anosmia). He said that an unpleasant smell in the nose is parosmia. He also said that he did not consider that the cochlear hydrops was related to the accident, and that the applicant’s loss of hearing was typical for cochlear hydrops.

Mr Michael Silverstein, an ear, nose and throat surgeon, examined the applicant at the request of her solicitors in October 2016. She complained of loss of sense of smell, diminished hearing, and intermittent attacks of dizziness and vertigo. On examination, her sense of taste was tested and was intact. She was subjected to several odours and could not detect any. Mr Silverstein did a tuning fork testing for her hearing and found she could hear well in both ears. There was some diminished hearing on the right side compared to the left. An audiogram, that had been conducted at the Eye and Ear Hospital, indicated a loss of hearing in both ears, primarily in the low frequencies. The reports indicated evidence of disturbance of body balance, which appeared to be more neurological, than caused by any disturbance of the ear, nose or throat. Mr Silverstein’s overall diagnosis was a loss of sense of smell, a disturbance in balance and a mild disturbance in hearing. He said that the tinnitus, complained of by the applicant, could be accounted for by the disturbance resulting from the concussive injury. He considered that the loss of sense of smell was caused by the accident, resulting from damage to the nerve fibres. It was possible that the hearing loss was also related to the accident, although generally losses of that nature are associated with significant trauma involving fracture of the skull or the inner ear. He said that bearing in mind that the first recorded complaint of hearing loss was on 11 February 2010, he believed that there would be a direct connection between the accident and that hearing loss.

In cross-examination, Mr Silverstein disagreed with Mr Kennedy’s opinion that the applicant’s hearing loss was due to cochlear hydrops, which were not related to the accident. Mr Silverstein repeated that he was satisfied that the concussive episode was sufficient to contribute to the hearing loss. He agreed with the opinion of Dr Webb (who examined the applicant on behalf of the respondent) that the relationship between a possible hearing loss and the accident was uncertain, because there was no evidence for a malformation that would cause undue sensitivity to what was a mild head injury. He said that there was no adequate investigation conducted of the inner ear. He also agreed that the Sensonics Smell Identification Test conducted by Dr Webb was more reliable than the subjective tests that he conducted on the applicant for loss of smell.

Dr Linda Byrne, a psychologist, assessed the applicant at the request of her solicitor in October 2016. Dr Byrne considered that the applicant gave of her best effort in performing the tests that she conducted on that day. She said that, generally speaking, the results, that the applicant achieved on testing, were consistent with testing conducted by Dr Dion Perre in 2011, Mr James Drury in 2014, and Dr Andrew Gibbs also in 2014. Dr Byrne said that the applicant’s scores on testing revealed an extremely severe range of symptoms for depression, anxiety and stress, and a very high level of PTSD symptoms. Dr Byrne considered that the applicant suffered from a PTSD and an adjustment disorder with mixed anxiety and depression. Dr Byrne also was of the view that the applicant had a limited capacity for employment, because she had difficulty multi-tasking and was easily overwhelmed by large amounts of new information. The prognosis was guarded, since it had been six years since the accident. Dr Byrne stated that the applicant’s psychological symptoms were significant and seemed to have deteriorated over time.

In cross-examination, Dr Byrne stated that it was unlikely that the applicant had suffered a traumatic brain injury. She agreed that the consequences, that she described, were of a psychological reaction rather than the effects of an organic brain injury. Dr Byrne reiterated that the tests, that she had administered, evaluated whether the applicant was giving of her best effort, and there was no evidence that she was not doing so. She agreed that, on the test of memory malingering the applicant’s responses were slow which, according to the test manual, suggested that there was questionable effort by the applicant. However, Dr Byrne considered that that was because the applicant was experiencing distress during the testing. Dr Byrne agreed that the conduct of the applicant, in defending the Hungry Jack’s litigation, would have involved some degree of organisation, and an ability to remember what had taken place in the franchise business she had conducted. She also agreed that, if the applicant was able to represent herself, read a large number of documents, and understand the law and the litigation, that would point to somewhat higher functional cognitive ability than that which the applicant complained of. When counsel put to Dr Byrne the contents of the applicant’s affidavit, Dr Byrne responded that most of the applicant’s cognitive functioning was not impaired. Rather, her behaviour indicated some problems with her attention, but her verbal and non-verbal intelligence were in the average range, and on executive functioning there was only one area that was slightly reduced.

Associate Professor Justin O’Day, an ophthalmologist, examined the applicant in October 2016. He found that, with uncorrected vision, there was some blurring of vision of the applicant’s right eye measured at 6 over 7.5, which could be corrected with a small spectacle prescription to normal vision of 6 over 6. Her vision in the left eye was normal. Professor O’Day performed a visual field test twice, and on both occasions there were abnormalities in the visual field of both eyes, more in the right eye than the left eye. Professor O’Day considered that there had probably been a contusion injury to the optic nerve on the left side caused by trauma, such as the accident. Professor O’Day also found a defect in the right nasal area.

In cross-examination, Associate Professor O’Day stated that the applicant had healthy eyes. He said that the field test was a subjective test, the accuracy of which was dependent on the patient performing to the best of his or her ability. He said that the defects, demonstrated by those tests, were relatively mild. Counsel read to Professor O’Day the report of Dr David Gale, and Professor O’Day agreed with the opinions that were contained in that report. In particular, he said that both he and Dr Gale agreed that the loss of peripheral vision in the inferior nasal quadrant was minimal. Professor O’Day also agreed that the matters found by him on testing had not caused the applicant any particular concern, and that it was not necessary for the applicant to wear corrective spectacles.

As mentioned, Dr David Weissman, a consultant psychiatrist, examined the applicant in August 2014 and subsequently again in October 2016. On the first occasion, Dr Weissman considered that the applicant had had a sound pre-accident level of functioning and mental health. She had sustained a number of significant physical injuries in the accident, and experienced significant cognitive symptoms, including impairment of concentration and short term memory. Dr Weissman considered that the applicant had sustained and developed a very mild higher level cognitive deficit and dysfunction, which was more likely to be contributed to by various psychological, functional and non-organic factors, such as her depression, anxiety and pain, as well as the side effects of medication she was taking, rather than organic brain injury. However, he considered that there was probably a very mild higher level organic component to the deficit.

Dr Weissman considered that the applicant continued to suffer mild chronic PTSD symptoms, but they did not permit a diagnosis of a PTSD. The applicant also suffered from a moderate mixed reactive depressive and anxiety syndrome, secondary to her pain, injury disability and dysfunction. He was of the opinion that the applicant had a chronic major depressive disorder with anxiety, rather than merely a chronic adjustment disorder. Dr Weissman stated that the applicant required treatment by an experienced clinical psychologist, together with a therapeutic trial of anti-depressant medication. Dr Weissman considered that the applicant was totally incapacitated for all her pre-injury duties or alternative duties, and that she would need to undergo significant improvement in her psychiatric state before she would attain a partial capacity for suitable duties. Her diagnosis was likely to be poor.

When Dr Weissman re-examined the applicant in October 2016, he noted, again, that while she suffered symptoms of PTSD, she did not qualify for a diagnosis of that disorder. He reiterated his earlier view that she had developed a very mild higher level acquired organic cognitive deficit and dysfunction due to a traumatic brain injury. In addition, a significant proportion of her cognitive dysfunction was psychologically based due to a combination of her depression, anxiety, pain and medication. She was still suffering from a chronic major depressive disorder with anxiety of moderate intensity or severity. Her symptoms and impairment had stabilised. Dr Weissman considered that the applicant was totally disabled for work, and her prognosis for the future was likely to be relatively poor.

Dr Weissman was asked by counsel about the views expressed by Professor Doherty in his report. Dr Weissman stated that he considered that the Hungry Jack’s proceeding had no relevance to the applicant’s condition when he saw her on both occasions. The fact that the litigation might have caused the applicant some distress was not relevant to the depressive condition that she was suffering. He considered that there was no basis for Professor Doherty’s opinion that the proceedings would have contributed significantly to her psychiatric state. Dr Weissman also rejected Professor Doherty’s opinion, that as a result of the matters contained in the applicant’s affidavit and newspaper articles, there was no significant interference with the applicant’s ability to undertake employment and that there was no significant impairment in her domestic and leisure activities from a psychiatric point of view.

In cross-examination, Dr Weissman said that the applicant had told him that, before the accident, she had sold her Hungry Jack’s franchise in Wangaratta, and that she had set up a new business. He disagreed that the applicant’s involvement in the Hungry Jack’s proceeding as described in her affidavit, was inconsistent with her having a major depressive disorder. He also disagreed with the proposition that her involvement in that litigation indicated that she had a capacity to work and to operate ordinarily in society. Having been referred to the opinions of Dr Byrne, Dr Weissman disagreed that there was no organic component to the applicant’s cognitive condition. Dr Weissman agreed that there were insufficient criteria for a full blown diagnosis of pain disorder, although the applicant had some symptoms of that disorder. When questioned about the applicant’s prognosis, Dr Weissman stated that, in predicting that she would not be able to work in the ‘foreseeable future’, he had in mind a period of two to five years ‘at the most’.

Finally, counsel read to the jury reports prepared by Dr Helen Sutcliff (an occupational physician), Mr Michael Dooley (orthopaedic surgeon), Mr Peter Kudelka (orthopaedic surgeon), Mr George Dimitroulis (oral and maxillofacial surgeon), Ms Anne Lester (audiologist) and Ms Colleen Crutchfield (psychologist).

Dr Sutcliffe examined the applicant at her solicitor’s request on 1 October 2014. She considered that the applicant had sustained a comminuted fracture of the nasal bones, a soft tissue injury to the right shoulder, and a head injury with persisting cognitive impairment of mild extent. In addition, she had suffered the onset of PTSD symptoms, together with the onset of an adjustment disorder with depression and anxiety. Dr Sutcliffe considered that the applicant had no capacity for her pre-injury employment requiring complex cognitive functioning as a result of her psychiatric injury and the cognitive dysfunction. She also had a limitation of function of the right upper arm due to the soft tissue injury to the right shoulder. Dr Sutcliffe was of the view that the applicant was incapable of undertaking employment in taking into account her symptoms and conditions. The prognosis was poor.

Mr Michael Dooley, an orthopaedic surgeon, examined the applicant on 5 December 2016 at the request of her solicitor. He considered that, as a result of the accident, the applicant had sustained a soft tissue injury to the cervical spine, an impact injury to the right knee, and a possible soft tissue injury to the right shoulder girdle area. Mr Dooley did not consider that any orthopaedic treatment was required for the neck or shoulder injuries. There was no specific injury to the glenohumeral joint or rotator cuff region. Accepting that there was some bruising, the consistency and intensity of her ongoing pain, and her complaint of disability, were greater than would be expected for such a condition. Accordingly, Mr Dooley considered that the applicant had suffered a psychological reaction to her situation that influenced her ongoing symptoms, so that her stress, anxiety and depression contributed to much of her ongoing somatic symptoms. From an orthopaedic point of view, Mr Dooley would expect the applicant to experience only some intermittent cervical spine pain and some intermittent right knee pain. He did not expect her orthopaedic conditions to deteriorate in time. From an orthopaedic point of view, Mr Dooley considered that the applicant had a physical capacity to carry out light physical work and clerical duties, but that she would have some difficulty with regular heavy domestic duties. He considered that the applicant’s orthopaedic injuries had stabilised.

Mr Kudelka, an orthopaedic surgeon, examined the applicant on 5 August 2014. He had available to him the reports of a number of x-rays, CT scans and MRI scans taken of the applicant’s facial bones, right shoulder, right knee and cervical spine. Mr Kudelka concluded that the applicant had sustained a post-traumatic aggravation of pre-existing age related mild constitutional spondylotic changes in the cervical spine. He also considered that she had a rotator cuff injury to the right shoulder, with residual symptoms of pain, weakness and restricted movement, and a post-traumatic chondromalacia patella of the right knee. Mr Kudelka considered that the applicant required physiotherapy to the neck and shoulder, and that it was unlikely she would regain normal function of the neck, right shoulder, back or right knee.

Mr Dimitroulis (oral and maxillofacial surgeon), stated that he performed a right temopo-mandibular joint arthroscopy on 4 August 2011, in which he found a very mild patch of inflammation in the mid distal region, but otherwise the rest of the joint was normal. On review one week later, the only problem was that the applicant felt some pressure behind the right ear, which Mr Dimitroulis was unable to explain.

Ms Colleen Crutchfield, a psychologist, saw the applicant on 9 March 2011 and 23 March 2011. She recorded that the applicant complained of bad memory. The applicant stated that she experienced a spinning sensation, and that her symptoms included shaking and feeling as though as there was a charge going through her body. Ms Crutchfield referred her to a neuropsychologist and a neurologist for further investigation.

Ms Lester (an audiologist) conducted a hearing assessment on the applicant on 4 March 2010. She found that pure tone audiometry was consistent with borderline normal hearing in the left ear, and a mild to moderate sensory neural hearing loss in the right ear.

As mentioned the respondent called evidence from four medical practitioners who examined the applicant, Dr David Gale, Associate Professor Richard Stark, Mr Robert Webb and Associate Professor Peter Doherty, and the report of Mr John O’Brien was read into evidence.

Dr Gale, an ophthalmologist, examined the applicant on 21 November 2011. On testing, the applicant could see six over nine plus in the right eye and six over five in the left eye. She had a very mild myopic astigmatism, which meant that she had a congenital mild degree of long sightedness. The eyelids conjunctiva, cornea, anterior chamber, iris, pupil lens, vitreous and fundus of each eye appeared to be normal. The applicant thought that she had double vision, but all the areas of her claimed diplopia were outside the pathological areas for that condition. The field vision on the right field was a little smaller than that on the left field, but the applicant did not require any ophthalmological treatment. Dr Gale considered that any mild double vision, experienced after the accident, related to bruising, which had resolved. In conclusion, he considered that the applicant did not require glasses. He said that, in the peripheral field of vision, there was a small defect in the right eye which was more of an artefact, and the peripheral loss was minimal. He considered that the applicant had no ophthalmological disability related to the accident.

Mr James Drury, a clinical neuropsychologist, examined the applicant on 17 February 2014. Mr Drury administered a battery of tests to the applicant. He assessed that she was probably of broad average intellectual ability before the accident. On testing, her level of performance was generally consistent between most measures, but with a mild degree of strength in relation to visuospatial processing. Several other measures fell within the broad average range, generally consistent with her estimated pre-accident ability. Some aspects of her results were lower than expected, including her high level spatial planning ability, borderline auditory immediate recall, low and average auditory working memory, and sequencing ability. However, the applicant failed two freestanding measures of symptom validity, which indicated that her performances, on the tests conducted by Mr Drury were not credible, thus invalidating the overall pattern of results achieved on those tests.

Mr Drury further noted that it was uncertain whether as a result of the accident the applicant suffered any loss of consciousness, and any period of post-traumatic amnesia appeared to be very brief. The CT scan and MRI scan each revealed no abnormalities. He considered that the applicant’s complaint of declining cognitive functioning over time after the accident was not consistent with typical recovery from head injury. Therefore, Mr Drury was of the opinion that the applicant’s weaker pattern of results on the current assessment was likely to be due to factors other than organic brain injury. The fact that the applicant failed two highly sensitive measures of symptom validity indicated that there was a very high probability that she was feigning the results on the tests conducted by him. Mr Drury considered that it was more likely that the applicant’s performance was due to sick role behaviour rather than deliberate malingering. The fact that the applicant reported that her memory and concentration were deteriorating over time was not consistent with typical recovery from head injury and was likely due to non-organic causes. He noted that in 2011, when the applicant first underwent a neuropsychological assessment, her results were in the average to high average range, which was commensurate with her pre-accident ability. The fact, that the results achieved on testing by Mr Drury were lower, was due to psychological factors rather than organic causes.

In cross-examination, Mr Drury agreed that, in light of the symptoms reported by the applicant, she had probably suffered a degree of concussion in the accident. However, he disagreed that concussion can lead to long standing problems with movement and learning. Mr Drury stated that he was unable to detect any neurological factors that suggested that the applicant had suffered an organic injury to her brain. Rather, the applicant reported a lot of psychological symptoms, and her results in the testing suggested that there were strong psychological factors that were affecting her performance.

Dr Richard Stark, a neurologist, examined the applicant in January 2014. Dr Stark found that the applicant’s fundi were normal, and the cranial nerves were normal, except for some subjective reduction of sensation on the right side of the face. The applicant held her right shoulder lower than the left. On testing, the power of the trapezius muscle and of the sternomastoid muscle were normal. Dr Stark did not consider that there was any weakness caused by damage to a nerve. Rather, the applicant had developed a habit of holding her right shoulder lower than the left because of some discomfort. There was no evidence of neurogenic weakness in the right limbs. The applicant’s reflexes were symmetrical and normal. On sensory testing, there was subjective reduction of light touch in the right limbs. Dr Stark considered that the applicant had probably sustained a minor closed head injury with a brief loss of consciousness and brief post-traumatic amnesia. He would not have expected a single head injury of that type to produce long lasting cognitive or other neurological consequences. Dr Stark considered that there were no definite objective neurological abnormalities to account for the applicant’s complaints. He noted that the applicant was in a distressed emotional condition. His impression was that there were significant psychological consequences of the accident, and he regarded the neurological symptoms reported by the applicant as being attributable to her psychological state.

Dr Stark accepted that the applicant had some reduction in the sense of smell due to local factors in the nose, but that was not a result of any neurological dysfunction, and Dr Stark recommended that that condition be assessed by an appropriate ear, nose and throat specialist. Dr Stark considered that the findings by Mr Drury were consistent with his conclusions.

In cross-examination, Dr Stark agreed that it was usual for a person, who has had a minor head injury with concussion, to have an array of symptoms after such an incident. However, ordinarily such symptoms would improve over a period of time, and the factors that tend to perpetuate them are often psychological. He considered that it would be ‘virtually unheard of’ for ongoing cognitive difficulties, such as those reported by the applicant, to endure after a minor head injury of the kind sustained by the applicant. He reiterated that there was most likely no neurological impairment, but he accepted that he could not discount the possibility that there might be a very minor organic component to the applicant’s cognitive impairment.

Mr Robert Webb, an ear, nose and throat surgeon, examined the applicant in January 2014, and again in February 2015. On the former date, on examination, he noted an obvious bony bump at the bottom of her nasal bones. Otherwise, the remainder of the facial structures were normal. The applicant’s facial movements were normal, but she said there was a reduced sensation over the whole of the right hand side of her face, which continued down to her neck and right arm. The applicant’s nasal septum was in a good position and both nasal airways were open. There was a small papilloma (a wart) at the entrance to the left external canal of the left ear, but otherwise there was no abnormality to be seen in either ear. On testing, using tuning forks, the hearing in the two ears was basically the same. There was no nystagmus, and the head thrust test, which is sensitive for labyrinthitis disorder, was normal. The applicant’s coordination was normal, but she was not prepared to attempt the Romberg’s test for balance. A pure tone audiogram demonstrated normal hearing in the left ear, but there was a mild sensorineural hearing loss on the right side. Mr Webb described that loss as ‘a very small amount of hearing loss’.

On subjective testing, the applicant had no sense of smell. However, the Sensonics Smell Identification Test, which is an objective test for loss of taste, produced a result that indicated probable malingering. The result was inconsistent with the applicant’s report of anosmia (total loss of smell).

Mr Webb stated that the applicant’s nasal airways were satisfactory, but she was left with an abnormality of her nasal dorsum. Mr Webb did not consider that further surgery would be beneficial. Although the applicant had reported a loss of sense of smell, at most the loss was partial. There was no evidence of injury to the right ear or the skull base, so there was no explanation for the applicant’s reported reduced hearing in her right ear. Mr Webb stated that people with malformations of the inner ear can be unduly susceptible to minor trauma, so that it was possible that the applicant had a dilated vestibular aqueduct in the right side. He said that vertigo imbalance can occur in association with such a condition, but the pattern of the applicant’s dizziness and imbalance was unusual. Although the applicant reported weakness and loss of sensation down the right side of the body, including the face, there was no evidence of any injury to the branches of the sensory nerve to the face.

In conclusion, Mr Webb stated that the applicant had a continual abnormality of the nasal bones and a possible slight microsomia. The connection between the applicant’s reported right sided hearing loss, dizziness and imbalance to the accident was uncertain, in that there was no evidence of direct injury to the inner ear. Mr Webb considered that the loss of hearing did not affect the applicant’s capacity for employment or her general lifestyle. He also considered that her dizziness and imbalance were best assessed by a neurologist.

When Mr Webb re-examined the applicant in February 2015, she told him that her nose had not been improved by subsequent surgery. She said that she could not breathe through the left side of her nose, that she continued to have dizziness, and that she could not smell. When Mr Webb endeavoured to re-administer the Sensonics Smell Identification Test, the applicant was very upset and did not pay attention to it, so that the test was invalid. Mr Webb said that on every occasion on which he had administered that test to a patient, with the sole exception of the test administered to the applicant, the result had equated with the particular patient’s complaint of loss of smell. The only occasion on which that did not occur was with the test first administered to the applicant in January 2014. On examination of the ears, Mr Webb could not detect any abnormality in either ear. The tuning fork tests meant that there was either a conductive hearing loss in her right ear or a sensory neural hearing loss in the left ear, which did not fit the audiogram that had been administered in January 2014. Mr Webb stated that the tests were becoming confusing, because of the inconsistencies between them.

In conclusion, Mr Webb stated that the applicant had a partial nasal obstruction with a continuing cosmetic abnormality of the nose. He considered that, in light of the Sensonics Smell Identification Test, and Mr Drury’s assessment, the question of her loss of sense of smell was in doubt. Similarly, there was doubt about her claimed loss of hearing. He considered that any relationship between possible hearing loss and the accident was ‘very uncertain’, in that there was no evidence of malformation which could cause undue sensitivity of her ears. Mr Webb also was of the view that psychological features, such as depression and anxiety, were likely to account for her complaint of dizziness and lack of balance. He agreed with Dr Stark that the applicant’s problems, apart from her nasal appearance, were predominantly psychological.

Mr John O’Brien, an orthopaedic surgeon, examined the applicant on 29 June 2011, and his report was read to the jury. Mr O’Brien noted that the applicant had sustained significant facial injuries, with extensive comminuted fractures of the nasal bone. She also described persistent neck, right shoulder, hip and knee pain following the accident, for which she was currently undergoing physiotherapy treatment. Mr O’Brien stated that although current examination indicated some variability of her physical signs, the examination demonstrated no obvious musculoskeletal pathology for them.

Associate Professor Peter Doherty, a practising psychiatrist, assessed the applicant on 19 December 2016. Professor Doherty noted that although the applicant stated that her memory was poor and that she had trouble concentrating, when he administered a simple test for concentration and attention, she completed it satisfactorily. The applicant quantified her current mood as 5 out of 10 and her pain level as 8 out of 10. However, her attitude was appropriate. She was congruent with her thoughts and conversation, her speech was unremarkable, her thoughts were linear, and well connected without any peculiarity of content, stream or possession. There were some features of traumatisation. Although the applicant reported subjective impairments in concentration and attention, no such impairments were evident during the course of the interview and simple testing.

Associate Professor Doherty noted that the predominant complaint by the applicant was that of cognitive dysfunction, with symptoms of traumatisation. He considered that no one psychiatric diagnosis was appropriate for the applicant’s circumstances. While there did not appear to be any embellishment of symptoms, her assessment of her pain level of 8 out of 10 was not consistent with his observations of the applicant. He considered that the ‘best fit’ for a diagnosis was that of a major depressive disorder. The clinical criteria for a diagnosis of PTSD had not been met. While there were insufficient criteria to justify a diagnosis of a psychiatric condition of a pain disorder, there were features of somatisation. Professor Doherty considered that the applicant’s major depressive disorder was mild in severity, and the prognosis for it was reasonably good. He said that such disorders ordinarily have a good prognosis, and they tend by their natural history to resolve. He noted that the applicant had managed her second pregnancy and the care of her second child well, she had modified her previous excessive alcohol intake, and that she had business ideas in a sense of entrepreneurship. In addition, in 2016, she had felt sufficiently well to be able to re-partner. All those matters were indicative of the mild severity of her condition. Professor Doherty was of the view that the applicant’s psychiatric condition did have an impact on her capacity to work. It had significantly interfered with her plans to set up a camp for children with cancer. Professor Doherty was of the view that the applicant had a partial capacity for employment, but she would need to be flexible in terms of hours that were consistent with her parental responsibilities. He considered that the applicant’s symptoms and condition had a significant negative impact on her current work capacity and on her social and daily activities.

Further, we are not persuaded that the jury was bound to reject the revised opinion expressed by Associate Professor Doherty, as to the nature and level of the applicant’s impairment, after he had the opportunity to read the applicant’s affidavit in the Hungry Jack’s proceeding. Counsel for the applicant contended that the revision by Professor Doherty, of his earlier view, was founded on an incorrect characterisation by Professor Doherty of the amount and level of involvement by the applicant in the Hungry Jack’s proceeding. Counsel based that submission on the statement by Professor Doherty, in his evidence, that the applicant had demonstrated a ‘willingness and presumed ability to proceed to represent herself, study the documents and law’ and that in doing so she ‘went over reams of legal documents’. It was submitted that that characterisation by Professor Doherty of the applicant’s involvement in the Hungry Jack’s proceeding was fundamentally incorrect, so that the basis of Professor Doherty’s revised views was flawed.

In our view, it was entirely a matter for the jury whether the revised view expressed by Associate Professor Doherty was the product of a misapprehension by him of the level of involvement by the applicant in the Hungry Jack’s proceeding. In cross-examination, Professor Doherty stated that he considered that the applicant had indicated that she would study the documents relating to the case, because, in her affidavit, the applicant said that she would go over them to the extent that would enable her to work through the relevant issues with any barrister who she could find to help her. While Professor Doherty did not have any information as to the nature of the matters in respect of which the applicant appeared in the directions hearings before the judge, he noted, nevertheless, that in her affidavit she was prepared to undertake her own defence and the defence of her company if the need arose.

It was a matter for the jury whether it accepted those explanations by Associate Professor Doherty of the revised view that he had reached about the applicant’s capacity. In that context, the jury also had available to it the evidence by the applicant as to her involvement in the Hungry Jack’s proceeding. In cross-examination, she agreed that if the need had arisen, she would have represented herself and her company in the proceeding. She also agreed that, for the purpose of preparing her defence and counterclaim, she had compiled a detailed list of items that she contended were defective in relation to the Hungry Jack’s premises. In cross-examination, counsel put to her a number of those items, and she agreed that they had been derived from the list that she had prepared. She said that she had been prepared to give evidence about those matters when the case came on for trial, and she agreed that she did go into the witness box and give evidence to that effect. The applicant also gave evidence, in cross-examination, as to her involvement in the mediation in Sydney and the further mediation in Melbourne, and that (with her father) she had represented herself and her company in the three directions hearings in May to July 2012. Taking those matters into account, it was open to the jury to accept that the factual basis, on which Professor Doherty had expressed his revised view, was sufficiently accurate as not to invalidate his opinion as to the applicant’s psychological state.

In assessing Associate Professor Doherty’s evidence, both as to the views that he had formed after examining the applicant in December 2016, and as to his revised views, the jury was also entitled to take into account the evidence in the case as to other activities engaged in by the applicant since the accident, apart from her involvement in the Hungry Jack’s litigation. Again, in assessing that evidence, the jury was entitled to take into account that since the accident the applicant had undertaken the entrepreneurial course, had re-partnered with the respondent, and had given birth to a second child, thus undertaking the further responsibilities of parenthood.

In summary, then, on the view of the evidence that was most favourable to the verdicts, it was open to the jury to proceed on the basis that the principal, if not only, physical injury sustained by the applicant as a consequence of the accident consisted of the comminuted fracture to her nasal bones. Further, the jury was entitled to conclude that, after undergoing six surgical procedures, the applicant had substantially recovered from that injury, but that she had been left with a continued problem in breathing through her left nostril, and with a cosmetic deformity to the bridge of her nose. In addition, the jury was entitled to proceed on the basis that the applicant had sustained, at most, a mild depressive disorder as a result of the accident and the injuries that she sustained in it. The jury was also entitled to reject the proposition that her other somatic complaints were derived from a psychological or psychiatric disorder caused by the accident.

Taking those matters into account, in our view it could not be maintained that it was not open to the jury to award the applicant the sum of $100,000 as damages for her pain, suffering and loss of enjoyment of life. Certainly, the injuries sustained by the applicant, to her nasal bones, were sufficiently serious to have justified the award of a larger sum of damages for that aspect of the applicant’s claim. However, based on the foregoing review of the evidence relating to the applicant’s injuries, and on the view of that evidence most favourable to the verdict, it could not be concluded that the verdict of the jury, in respect of those damages, was not reasonably open to it.

Nor do we consider that the jury’s verdict of $70,000, in respect of the applicant’s pecuniary loss damages, was not reasonably open to it. The evidence before the jury was that the applicant had engaged in little, if any, remunerative employment for the financial years between 2004 and 2008. In 2009, she had entered into the Hungry Jack’s franchise, which was not a success, and from which she earned $20,000 during the seven months in which she conducted the franchise. Based on the evidence, the jury was entitled to proceed on the view that the applicant did not have an established and sustained history of financial earnings from remunerative employment.

At the time of the accident, the applicant had plans to establish two businesses, a cosmetic tourism business, and a holiday camp for children suffering from cancer. However she did not adduce any evidence, including projections of income, and costings, in relation to her expected earnings from either of those two proposed businesses. Little evidence was given by the applicant as to the steps that she had taken, before the accident, to establish either of those businesses. The question whether the applicant would have embarked on those businesses, and succeeded in them, was largely a matter for speculation.

The applicant gave evidence that, if she had not succeeded in those businesses, she could have resumed her hairdressing career. However, at the time of the accident, she had not engaged in that occupation for a number of years, and it was open to the jury to have doubts about the applicant’s ongoing capacity and willingness to undertake such employment on a sustained basis at the time of the accident. Certainly, it was open to the jury to reject the claim made by the applicant for loss of earning capacity on the basis of weekly earnings that she would have received in the past, and would earn in the future, from engaging in hairdressing until the age of 65 years. In addition, based on the view of the evidence as to the plaintiff’s physical injuries that is most favourable to the verdicts, and based on the evidence of Associate Professor Doherty as to the mild extent of any psychiatric injury sustained by the applicant, it was open to the jury to conclude that, as a consequence of her injuries, the applicant has sustained, and will sustain, only a limited interference with her earning capacity as a result of any injury sustained by her in the accident. In those circumstances, in our view, it was open to the jury to award the applicant a lump sum of damages, in the sum of $70,000, to compensate her for the possibility that she has suffered, or might suffer, some impairment in her income earning activity as a consequence of those injuries.[9]
[9]Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594, 598 (Scholl J); Munday [2013] VSCA 279, [46] (Priest JA).

Conclusion

For the foregoing reasons, the applicant has failed to establish either of the grounds in the application. Accordingly, the application for leave to appeal should be refused.

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Collins v Staminirovitch [2017] VSCA 342

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Munday v Court [2013] VSCA 279

[2017] VSCA 342

23 November 2017