George Varvatselis by his tutor Suzanna Varvatselis v William Varvatselis

George Varvatselis by his tutor Suzanna Varvatselis v William Varvatselis - [2020] NSWDC 13 - NSWDC 2019 case summary — Zoe

[3]

The preliminary issue

By an Amended Notice of Motion ("ANOM") filed on 28 November 2019, the plaintiff sought leave to rely on various medical reports at the hearing, which was due to commence on 2 December 2019, together with further orders pursuant to the Evidence (and Audio and Audio Visual Links) Act 1998. The ANOM was returnable before the List Judge on 29 November 2019, when his Honour Judge Letherbarrow made certain orders, and stood over to the trial Judge the following prayer for relief for determination: "1 Pursuant to r 31.28(2) of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff has leave to rely upon the following documents at the hearing set down for 2 December 2019: (b) Medico-legal report of Professor Lorraine Dennerstein dated 6 September 2019. (c) Supplementary report of Professor Lorraine Dennerstein dated 19 July 2019. (d) Supplementary report of Professor Lorraine Dennerstein dated 25 July 2019, and (e) Supplementary report of Professor Lorraine Dennerstein dated 18 October 2019. (h) Supplementary report of Fiona Goron, occupational therapist.
The plaintiff relied on two affidavits sworn by his solicitor, Ms D De Paoli sworn on 25 November 2019 and 28 November 2019.
When the matter was called on for hearing on 2 December 2019, counsel for the plaintiff raised these outstanding issues for determination after opening the plaintiff's case. The plaintiff's tender bundle became Ex A and included the reports the subject of the plaintiff's ANOM.
This matter had been subject to case management and orders had been made for service of expert reports by both parties. On 25 February 2019, the court ordered the plaintiff to serve any refresher reports on or before 3 May 2019. The matter was set down for hearing on 2 December 2019.
On 28 October 2019, some five weeks prior to the commencement of the hearing, the plaintiff served the reports outlined above. The evidence revealed that the plaintiff was relying on reports of a Dr Weissman, forensic psychiatrist, and that Professor Dennerstein was also a psychiatrist. A forensic decision had been made on behalf of the plaintiff initially not to serve the report of Professor Dennerstein dated 6 September 2018. Subsequently, the plaintiff's solicitor intended to serve the reports of Professor Dennerstein, but had overlooked doing so.
It was submitted on behalf of the plaintiff that Professor Dennerstein had provided effectively the same opinions in support of the plaintiff's case as Dr Weissman, concerning the nature of the psychiatric disorder suffered by the plaintiff, his prognosis, and his capacity, namely, his need for a tutor in the proceedings. Dr Weissman, in a report dated in early 2018, had opined that the capacity issue needed to be reviewed in 12 months' time. He had not done so.
Counsel on behalf of the plaintiff submitted that Professor Dennerstein's reports constituted a "continuum", and in that sense, effectively constituted an update on Dr Weissman's earlier report, thereby bringing Professor Dennerstein's reports within the terms of r 31.28. To the extent that r 31.28(4) required the applicant to demonstrate exceptional circumstances, it was submitted that the fact of the "continuum" would, in the present circumstances, constitute exceptional circumstances.
It was submitted that the report of Ms Goron would come within r 31.28(4)(b) as an update report.
Learned Senior Counsel on behalf of the defendant characterised the plaintiff's principal submission in support of leave being granted for the plaintiff to rely on Professor Dennerstein's report as an "extravagant construction" of r 31.28. It was submitted that the opinions expressed by Dr Weissman and Professor Dennerstein were not identical or interchangeable. To the extent that the opinions of the two doctors were identical, there was no need demonstrated for the plaintiff to rely on the reports of Professor Dennerstein when a forensic decision had been made not to serve those reports.
The defendant relied on a commentary by Dr Weissman included in each of his reports to the effect that his opinions were qualified to the extent that he relied on the plaintiff's reporting of his symptoms. The reports of Professor Dennerstein were not qualified to the same extent and were served well out of time provided by the court's orders for service.
The defendant submitted that the supplementary report of Ms Goron was not truly a supplementary report, as it offered further opinion, as the author had been qualified with other medical material and the report constituted a restatement of her opinions based on that further medical material.
Part 31 rule 28 provides as follows: "Disclosure of experts reports and hospital reports (1) Each party much serve experts reports and hospital reports on each other active party; (a) in accordance with any order of the court, or (b) if no such order is enforced, in accordance with any relevant Practice Note, or (c) if no such order or Practice Note is enforced, not later than 28 days before the date of the hearing at which the report is to be used. (2) An application to the court for an order under sub-rule (1) (other than an order solely for abridgement or extension of time) may be made without serving Notice of Motion. (3) Except by leave of the court, or by consent of the parties; (a) An experts report or hospital report is not admissible unless it has been served in accordance with this rule, and (b) Without limiting (a), an expert report or hospital report, when tendered under s 63, 64 or 69 of the Evidence Act 1995, is not admissible unless it has been served in accordance with this rule, and (c) The oral expert evidence in chief of any expert is not admissible unless an experts report or hospital report served in accordance with this rule contains the substance of the matters sought to be adduced in evidence. (4) Leave is not to be given as referred to in sub-rule (3) unless the court is satisfied; (a) that there are exceptional circumstances that warrant the granting of leave, or (b) that the report concerned merely updates an earlier version of a report that has been served in accordance with sub-rule (1)."
I rejected the plaintiff's submission that the four reports of Professor Dennerstein constitute a continuum so as to be characterised as an updated opinion of a report served in accordance with Pt 31 r 28(2) by Dr Weissman. A proper construction of Pt 31 r 28 means that the leave required pursuant to r 28(4) cannot be granted unless the court is satisfied of either that there are exceptional circumstances that warrant the granting of leave, or, that the report merely updates an earlier version of a report of the same expert that has been served in accordance with sub-rule (1). Neither applies to the four reports of Professor Dennerstein. The plaintiff made a forensic decision not to serve the first of those reports in time. That the plaintiff's solicitor later by oversight failed to serve all four reports does not constitute exceptional circumstances, particularly where the plaintiff was already relying on the opinions expressed by an expert with the same qualifications and expertise, namely, Dr Weissman.
Further, to grant leave would also necessarily require the court to grant the defendant the opportunity to meet those reports and risk an adjournment of the hearing.
Section 56 of the Civil Procedure Act 2005 sets out the overriding purpose of the Act and rules of court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56(3) provides that a party to civil proceedings is under a duty to assist the court to further that overriding purpose and to participate in the processes of the court and to comply with directions and orders of the court. That did not occur here, where the plaintiff's solicitor made a forensic decision not to rely on the opinions of Professor Dennerstein. To the extent that those opinions concur with the opinions of Dr Weissman, the plaintiff is in no worse position by being unable to rely on the reports of Professor Dennerstein. For those reasons, I ordered that leave not be granted in respect of those reports.
The report of Ms Goron fell in a different category. It was an updating report based on further medical material with which the author had been qualified and upon which she expressed further opinions. It fell within P 31 r 8(4)(b), and therefore I granted leave for the plaintiff to rely on that report.

[4]

The plaintiff's evidence

The plaintiff gave evidence that prior to the motor vehicle accident, he had enjoyed an active lifestyle, and played indoor soccer and engaged in boxing and hunting, as well as going to the gym. He had been going out with his girlfriend, Jessica, for five years, and had an interest in working on cars.
Having left school after the VCE at age 17, the plaintiff established two businesses when he was 18 years of age. The first was a panel beating shop and the second a pizza shop. To establish the panel beating shop, his father organised the lease of premises at Campbellfield in Victoria. He paid for the equipment from money he had saved and an inheritance from his grandfather.
The plaintiff worked during the day time at the panel beating business and then at night in his pizza business. Whilst no tax returns were completed prior to the motor vehicle accident in January 2014, they were subsequently.
The plaintiff left home and lived in an apartment above the pizza shop. He continued to go to the gym either early in the morning or late at night.
The plaintiff gave evidence that it was his intention to grow both businesses and to build them and have other people operate them on his behalf.
The car accident occurred in January 2014 when the plaintiff was on a camping trip with his father, his uncle and two other men. He was seated in the middle of the rear seat and was asleep. He remembered waking up and the car was spinning and next remembered waking up in a room with beds in it. He gave evidence that he could not move and has a recollection of a doctor and nurses attending to him.
The plaintiff was air-lifted to Dubbo Hospital and subsequently travelled by plane to Melbourne where he was admitted to the Epworth Hospital. He had no recollection of how he was at that hospital, but subsequently moved to Brunswick Private Hospital for rehabilitation. On discharge from Brunswick Hospital he lived with his mother and two sisters.
The plaintiff was asked how he felt on his discharge from Brunswick Hospital. He answered: "A: I just remember feeling completely different. I didn't want to leave the house. I don't know, I just, I didn't want to, I didn't want to leave."
The plaintiff gave evidence that he was suffering pain in his back and neck and he had numbness in his left leg. That pain and numbness has been continuing and he had not returned to work since the accident.
The pizza shop had been closed, and his father had taken over the running of the panel beating shop. When asked whether he initially got back to driving a motor car, the plaintiff answered: "A: Rarely, here and there."
He gave evidence that he was eventually notified that he was not allowed to drive and that his licence was suspended. He had subsequently been convicted of driving whilst licence cancelled.
The plaintiff gave evidence that he had continued to drive from time to time subsequently, that his family had "told him off" for doing so, however, he continued to take cars which were available at the front of his house, because his sister operated a car rental business, at times.
Following the accident the plaintiff remained under the care of psychiatrist, Dr Naomi Elliott, for some time. He was also under the care of his local medical officer, and was continuing to take anti-depressant medication, together with Chinese herbal medicines for his pain. His mother gave him his medication.
The plaintiff gave evidence that he continued to feel depressed or down all the time and anxious. His depression and anxiety had remained the same, however, he gave evidence that he had panic attacks when he was around a lot of people.
The plaintiff gave evidence that he had lost friends and that he now had one friend, Peter Natale. His girlfriend had left him following the accident and that he went out "here and there" with his friend Peter. He described having a panic attack "almost every time I go out with Peter".
The plaintiff gave evidence that he had no motivation, that his memory was not good and that he spent his day at home watching tv or playing Playstation. He gave evidence that he was now short-tempered and would lose his temper when his mother pushed him "to do stuff too much".
The plaintiff gave evidence that he went to the gym and did "treadmill, light walk, light weights". Otherwise he went to the shops and went out with his mum, his dad and with his sister Suzanna he would go for walks.
The plaintiff gave evidence that he had been to the panel shop with his father who would get him to do things such as "cleaning around the place" or "to move the truck". He did not do that often. The plaintiff also gave evidence that he had been overseas to Indonesia and China a number of times with his father and girlfriend. In April 2017, he also travelled to the USA with his father and two sisters.
The plaintiff gave evidence that he continued to suffer pain in his lower back, for which he did stretching exercises, recommended by his physiotherapist. The back pain was stable now, however, his mental state was not getting any better.
The plaintiff denied ever taking any motorbike test shortly after the accident. He gave evidence that he had renewed his security licence because his father wanted him to keep it renewed. He denied any ideas of self‑harm.
In cross-examination, the plaintiff gave evidence that on discharge from Brunswick Private Hospital he was in pain in his neck and back, and was in a wheelchair. Seventeen days following his discharge, he did a test to obtain a medium rigid truck licence. He was not feeling mentally well at that time. In his application to VIC Roads, he had answered the question "Has there been any change to a medical condition that you previously notified to VIC Roads?", by answering "No".
In answer to a question, "Are you currently suffering from or have you suffered from any serious or chronic medical condition or disability which could affect your fitness to drive?", he answered "No".
The plaintiff gave evidence that his father had told him to answer "no" to each of those questions. He knew how to drive a truck and had driven a tow truck for three or four years.
The plaintiff was questioned about his trip to Bali for a week from 22-29 March 2014. Four days after his return, on 3 April 2014, he did his practical driving test for the medium rigid truck licence. A few days later, he applied for a motorcycle riders' licence, but denied that it was he who applied for it. Rather, he explained that a friend had gone for that licence under his name. He denied willingly participating in the application for the motorcycle riders' licence and could not remember attending at a VIC Roads depot to do so on 8 April 2014.
On 14 November 2018, the plaintiff gave evidence that he could not remember going to Preston Police Station to complete a Statutory Declaration about the motorcycle licence. He was shown a Statutory Declaration under his hand, in which he alleged that his friend, Mr Koher Taleb, had impersonated him for the purpose of obtaining the licence. The plaintiff gave evidence that he did not remember giving his own driver's licence to Mr Taleb for that purpose. In his own Statutory Declaration he had stated that he was heavily medicated at the time and suffering from depression three months after the accident. He also stated that Mr Taleb had died on 1 July 2018. He had no recollection of making the Statutory Declaration. It was put to the plaintiff that the evidence he gave about Mr Taleb was "simply false", which he denied. The plaintiff's Statutory Declaration became Ex 5. The plaintiff also denied that his explanation for the motorcycle riders' permit application bearing his name was false and that parts of the Statutory Declaration were false.
The plaintiff gave evidence that nine months after the accident he still had pain in his lower back and that his mental state was bad. When asked to explain, he said: "A: I was still experiencing everything, depression, anxiety."
The plaintiff also said his memory was not so good at that time.
At that time, the plaintiff had taken a theory test to obtain a boat licence. The purpose for obtaining the boat licence was "just for the sake of having one" and the plaintiff denied that the object of getting the licence was so that he could ride a jet ski. He denied ever riding a jet ski after he obtained his boat licence. It was his father's idea to get a boat licence.
It was put to the plaintiff that he had used a wheelchair when he went to see Dr Berberovic for the first time on 8 June 2014, which was just for show. The plaintiff denied that proposition. It was also put to him that the use of the wheelchair by him at that time was "just an act", which he denied.
It was also put to the plaintiff that if he was knocked out at the time of the accident it was for a few seconds only. The plaintiff denied that. It was put to him that his account of having little or no memory of events after the accident until he woke up in hospital, was "just not true", which he also denied.
The plaintiff was cross-examined about cancelling a care program provided by the Transport Accident Commission. When asked why he answered: "A: I was just getting too overwhelmed by them coming and they were just - I just remembered the questions they were asking me I just didn't want - I didn't want them in my house."
He agreed that he told them that he did not feel like being social, that he just wanted to be left alone and that he would rather be by himself.
The plaintiff agreed that he had renewed his security licence in late 2015, but that his father did it for him. He agreed that in the application to renew he denied that he had been treated for any psychiatric or psychological conditions in the past five years, but denied completing the form. He gave evidence that his father did it for him. He agreed that the signature on the form looks like his signature.
The plaintiff agreed that he went to Bali for a second time in August 2016, on this occasion with his father and two sisters. He returned on 10 August 2016, and three weeks later he was assessed by Ms Goron, an occupational therapist, at his home. He did not mention to her that he had been to Bali three weeks before, but could not remember what questions she asked him. In 2017 he went to the USA with his father, two sisters, his uncle and a friend of his father's. He could not remember telling any of the doctors who examined him about that overseas trip.
The plaintiff was also cross-examined about going to China a few months before the trial with his father. He agreed it would have been relevant to tell the doctors about the trips that he had been on.
It was put to the plaintiff that the account he had given to doctors, and that he continued to give, of being most of the time at home, not feeling like going out with other people, not liking crowded spaces, sitting at home with the tv and Playstation, were just not true, which the plaintiff denied.
The plaintiff was cross-examined at length about his involvement on social media. He agreed that he used Facebook to communicate with friends from time to time, that he had Snapchat which he used rarely, and was on Instagram. The plaintiff gave evidence that his friend Peter Natale and his sister Steph made an Instagram account for him so he would not feel isolated. He did not have control of that account "a lot of the time". Both Peter and Steph would take photos of him and put them on Instagram. The account was in the name of George Walker. When asked why, he gave the following answer: "A: Because my surname was too long. They said they will make it something short."
The plaintiff denied that it was in the name of George Walker so that it would be anonymous. The plaintiff gave evidence that the Instagram account was closed after he had been given access to it and he put what he described as "a depressing talk" on it.
The plaintiff was cross-examined at length about numerous photographs which had appeared on his Instagram account. He denied posting the photographs, and notwithstanding that some of them showed him enjoying himself, he said he was still depressed and anxious.
The photographs were of the plaintiff on social outings, and playing musical instruments. He gave evidence that he had taken videos of himself which his sister would upload onto the Instagram account. She retained control of the account and would only give him access occasionally. She maintained control of the account by changing the password.
The plaintiff denied uploading photographs onto the Instagram account and making comments on them. All of the comments were made by his sister. He denied the Instagram account had been set up by him and run by him. He further denied that the evidence he had given that his sister had set up the account and limited access to him to the account was false.
The photographs which were shown to the plaintiff and became exhibits in the proceedings, on which he was cross-examined, had previously been the subject of an order made by her Honour Judge Balla on an ex parte application made by the defendant, pursuant to Pt 31 r 10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Also subject to that order was a video comprising surveillance film exposed by investigators employed by the defendant over a period of time. Excerpts from that video footage were played to the court in accordance with a schedule and times set out therein, which became Ex 31 in the proceedings. During the playing of that video evidence, the plaintiff was cross-examined for the purpose of identifying himself in the film. The video evidence demonstrated that the plaintiff had visited the panel shop, was observed to be carrying sheets of plywood, was cutting plywood with a Stanley knife, visited a supermarket pushing a female in a wheelchair, was driving his father's utility vehicle, visited a tattoist's shop, visited a gym in which he did exercise and weights, visited a café with female, visited a Bunnings store to purchase plywood, visited a shopping centre, and with his father, carried out work on the roof at the rear of his sister's florist shop, involving the placement of metal sheeting.
That activity involved the plaintiff using a drill and kneeling, which the plaintiff denied was extremely light work compared with what he did at the gym.
The plaintiff was shown on video on 5 September 2019 to alight from a tow truck, with a vehicle on the back. He gave evidence that the tow truck belonged to his father, and when asked why he was driving it, said: "A: He gets me to drive it around here and there, I've said that." He denied that he was assisting in a business that his father operated as a tow truck operator. Rather, the tow truck was used to bring cars and take cars out of the panel shop.
Further video of the same day showed the plaintiff walking a large dog in the park, and running behind the dog with a backpack for a distance.
The video exposed on 6 September 2019 showed the plaintiff at a gymnasium lifting weights. He is also shown to visit the same gym on 7 September 2019 and again on 20 September 2019. On the last occasion the plaintiff is shown to be doing heavy exercises lying on a saddle, doing bends and lifts down to floor level. It was put to him that he had not had lower back pain or neck pain for five years, which he denied.
The plaintiff was cross-examined about declining participation in an Independent Living Program offered to him by the Transport Accident Commission. When asked why he declined, he said: "I didn't want to do it because I feel stable how I am. I don't feel like it'll help."
The plaintiff agreed that he could engage in other activities outside the home such as going to the gymnasium or shopping. Physically, there was nothing to stop him carrying out any household cleaning tasks, however, he gave evidence that he would not know how to do some of them. He gave this evidence: "A: It's not that, it's not the physical aspect of it, it's when I'm home and I'm sitting alone on my own, you don't understand how depressed I get and my mum tells me to do stuff all the time and I tell her, 'I don't want to'."
The plaintiff gave evidence that playing Playstation helped with his anxiety and depression and he knew that doing household chores such as washing his clothes would not. He enjoyed going to the gym because it took his mind off things. He was asked: "Q: Is it only motivating yourself to do things you don't enjoy that is the problem? A: I guess, yeah I guess."
The plaintiff denied that his evidence about not looking after himself unless somebody reminds him to was untrue and was part of an act. He denied that it was designed to promote his claim or part of an act to persuade psychiatrists or psychologists that he had a problem relating to this accident.
It was put to the plaintiff that it was a charade and a pretence that he would not shower himself unless someone forced him to, which he denied.
It was put to the plaintiff that he had, for the last five years, been feigning symptoms of depression, which he denied. It was put to him that he did not look down or depressed at the gym, as demonstrated in the film, to which he replied: "A: No. It makes me feel better, the gym."
It was further put to the plaintiff that his appearance in the witness box of being either tired or yawning, or flat in effect, was not evident when he was at the gym, to which he replied: "A: The gym makes me feel better. It gets my mind off everything, like I said."
The plaintiff was further cross-examined about medications he took. He gave evidence that they were provided by his mother and that he was taking Chinese medications. He was not sure if he was taking any Australian medications at the moment.
It was put to the plaintiff that, when he was operating his business, being the panel beating shop, that he could not say he was a qualified panel beater or spray painter. He answered that he did not have to. It was put to him that he could return to panel beating work now, but he said he could not do it on his own and he wanted nothing to do with cars anyway. He felt that working eight or nine hours every day would be too much for him.
It was put to the plaintiff that he could go and work at his dad's panel beating shop now, and he answered: "A: If I want to …" Q: Don't you want to do some work? A: No I don't want nothing to do with cars anymore. Q: Why not? A: I just - I've lost it for cars. I don't - I just don't want to do that anymore. Q: If you wanted to work it would be easy enough to simply start work the next day in your father's panel shop? A: Yes. Q: But you don't want to? A: Yes. Q: Or you don't want to until this case is over, is that more accurate? A: No. Q: You'll be working as soon as this case is over, won't you? A: No. Q: Why not? A: Because I just can't see myself doing anything. Q: Why not? A: Because I can't see myself - I actually can think of something that I can do that I would do."
It was put to the plaintiff that when he wanted to work he would have full time work easily available to him, being the same work that he was doing before the accident, which he denied.
It was further put to the plaintiff that he had recovered very quickly from his physical injuries following the motor vehicle accident, which he denied. It was also put to him that he was capable of working in a pizza shop, which he denied.
It was put to the plaintiff that he would have no difficulty managing money if it was in the bank, which he denied. He did not know whether he would be able to invest money if he had it.
It was put to the plaintiff that within months after the accident in 2014, he had recovered from all of its effects, both physical and emotional, which he denied.
In re-examination, the plaintiff was asked what the circumstances were of him going for the truck licence, boat licence and security licence. He gave this evidence: "A: My dad was the main one who wanted me to get them, so he was pushing me to get them. That's the main reason."
His father gave him assistance in obtaining the licences by filling out the application forms.
The plaintiff was asked about driving the tow truck as shown in the video. When asked what the circumstances were of him getting involved in driving the tow truck, he stated: "A: It'd just be because my dad wants me to do it, wants me to get out of the house so he'll get me to drive the truck for him."
When asked why he stopped the home assistance provided by TAC, the plaintiff said he just did not want their company any more. He also gave evidence that he did not want to be working with cars anymore and when asked what the circumstances were of him working on the roof of his sister's florist business, he answered: "A: She had to - she was doing renovations in the back, so my dad told me to come out those days. He wanted me out of the house. He said, 'Come help your sister, help me'. So, I agreed."
The plaintiff gave evidence that had occurred on other occasions involving jobs to do with his family.

[5]

Evidence of Mr Peter Natale

Mr Natale gave evidence that he had known the plaintiff since high school and had a strong friendship with him. He described the plaintiff as being a very active person before the accident, who had a lot of friends, who played sport and had a social life.
Mr Natale gave evidence that the plaintiff was very motivated to work and wanted to be successful in life. He was operating both a panel shop and a pizza shop before the accident.
Mr Natale gave evidence that there was a big change in the plaintiff following the accident. When asked what that change was, he answered: "Just he didn't - couldn't be bothered any more. Like, didn't want to go out. Just keep to himself. Just wasn't the same person I used to know, from how he used to be to what he become. Like, after the accident was complete two different people."
He described the plaintiff as being depressed. He had seen him regularly since the accident and had taken him to family occasions such as his brother's wedding and birthday parties. He described the plaintiff as not being the way he used to be and his old friends had drifted away. When asked whether the plaintiff appeared to be motivated to do any work, Mr Natale answered: "A: No. Too lazy for me."
Mr Natale gave evidence that he had taken photos of the plaintiff and sent them to the plaintiff's sisters, Natalie and Stephanie, for uploading on the plaintiff's Instagram account. When asked why, he said: "A: They managed the accounts." He was asked: "Q: Were you aware why they had the accounts? A: Because George was always uploading depressing videos. Q: Did you actually see any of the depressing videos that were uploaded? A: I've seen one but it wasn't up for long." He described the plaintiff as crying in the video.
Mr Natale was cross-examined about providing photos to the plaintiff's Instagram account. He was asked: "Q: What was the purpose of having an Instagram account with his photos on it that he hadn't seen? A: Just to let people know he was still social, in the outside world." He was asked how they would find the plaintiff under the name George Walker and was asked: "Q: So someone who didn't know that his Instagram account was not in his own name, wouldn't be able to find him, would they? A: Not really. But they bought a lot of followers as well. Q: Who bought a lot of followers? A: His sisters were like buying followers. When asked whether he knew perfectly well that the account was the plaintiff's account and items were posted by the plaintiff, he answered:' "A: George had nothing to do with the account."
He denied that he was attempting to support the plaintiff's case by providing an explanation for the account which he knew was not true.
It was put to Mr Natale that there was no change in the plaintiff when he was out socialising from before the accident, which he denied. He did know the plaintiff was on Tinder, a dating site, but said, "everyone was on Tinder".
The witness did not know that the plaintiff held a truck driver's licence or a boat driver's licence. He had not seen him driving a car or a motorcycle.
Finally, the witness was asked: "Q: I want to suggest to you that you've come here to try and assist your friend in persuading the court that he suffers from some depression? A: That's a lie. Q: Whereas in fact, he lives a social life, participates in social media just like yourself? A: No.
There was no re-examination.

[6]

Evidence of Natalie Varvatselis

Ms Natalie Varvatselis is the sister of the plaintiff. She gave evidence that before the motor vehicle accident in 2014, the plaintiff was "happy, motivated, energetic, driven, lively, social, yeah, just full of life, full of happiness, yeah, just happy". She was asked: "Q: Can you tell the court how he was after the accident, were there any changes? A: So, it just makes me emotional. Sad, to himself, just depressed, dark. He was just not George. He is not George that I knew before. He just became a different person on the inside. He was very broken. His spirit was broken. He - emotional, yeah. Yeah, just a very different person, very depressed. … Q: And did he change in what he did, the things he was doing? A: Yeah. You know, he was very business savvy and all about business and life, and then he just became deep, dark, to himself. He just didn't want to know anything. He didn't want to do anything. He doesn't - he doesn't think outside the box any more. He doesn't see anything bright about, you know, his life or - yeah, just very different compared to how he was before."
The witness gave evidence that she, together with her sister Stephanie, set up the Instagram account for the plaintiff and started posting for him. She was asked: "Q: Does George operate it? A: No, it - he's tried - well, he's posted before, but every time that he did he would always post something dark, like, for example, you know, he would post a picture and then he would write under it, 'What's the point of life? What's the point? What's the point of us being happy?'. You know, 'if the end is just so close', or you know, he'd video himself - sorry - I'm so emotional over this." … A: He'd video himself talking about, you know, people with suicide and just didn't - didn't understand why he should be happy when people telling him he should be happy. That's why me and Steph just - just kept didn't ignore him because I don't want him to feel - I wanted him to keep a social life and keep things as normal as possible for George."
The witness went on to describe how she also used the Instagram account to promote her own florist business. She gave evidence that there was a password for the Instagram account which she maintained control of with Stephanie. The plaintiff did have access to the account at times however. The photos that were posted on the Instagram account were contributed by "everyone", however the majority came from Peter, meaning Peter Natale.
The witness gave evidence that the only thing that comforted the plaintiff now was his gym and his dogs. When asked about how the plaintiff came to be working on the roof of her florist shop with her father, she gave the following evidence: "A: He was with my dad at the time, so pretty much dad will just pull him along to wherever he goes, and he was - yeah, just trying to get him to do something, you know. Like, George, you know, 'hand me that', or 'do this with me'. Or just to make him keep his mind busy. But yeah, that's the only reason he would have come. Not because I asked him or anything like that. Just he came and just did what my dad told him to do, really."
The witness was cross-examined about the footage of the plaintiff and his father working on the roof of her florist shop. She gave evidence that she was not aware that there was film of that activity, however, she just knew that her brother was there assisting her dad. She went on to give evidence that she just did not know whether the plaintiff was up on the roof working.
The witness was shown a photo of the plaintiff on the roof and gave the following evidence: "Q: But we see George doing a range of activities don't we? A: Because my dad would have told him to. Q: How do you know that? A: Because that's just - whenever I'm around my dad or George, I know what he's like. He - he motivates him to do everything."
The witness gave evidence that she did not know what motivated the plaintiff to go to the gym. She had moved out of home just after the accident and had established her business within a year. She gave evidence that she made time to visit her mother's home where the plaintiff lived. She agreed that she would not see much, if anything, of the plaintiff during the day on any seven days of a week. She was asked: "Q: You see, you've got no idea what George does during the day, do you? … A: Only what Suzie updates me with, or my mum, or like when my dad talks to me. They will - I'm speaking nowadays, like, they'll update me on what George is doing, because I just don't have time."
The witness was cross-examined at some length about the use of the Instagram account for the promotion of her business. It was put to her that she had not posted photographs that actually advertised her shop or her product. She answered: "A: It does, but at the same time in respect for George, this is for George. You know, when I post things for George, it - I mean, when I post things for myself, I can just take over the whole page, make it all about me and my business. I did this with Steph for George, for his confidence for - to make, you know, to try and get him back a social life or, you know, it's not all about me. I can't make this page about me."
When asked why she was doing this to promote the plaintiff's social life, she answered: "A: Because I want to try and make things normal as possible for him, so it's just something that I thought would help him. Q: How? A: Because when people - as crazy as this may seem, when people - you know, his friends or Peter or my family post things on his pictures, it would make you feel good reading something nice they've said about him, you know."
The witness gave evidence that she made comments on behalf of the plaintiff's profile on that Instagram account. When asked what was the purpose of doing that, she said: "A: You just get caught up in it and I just - at some point I believe like it was mine, so you just kind of just respond to anything that gets posted. I know it sounds strange, but it's just - it is what it is."
The witness was challenged about the Instagram account as follows: "Q: And, you see, I want to suggest to you that you are deliberately giving this story about you and your sister creating this account to convey the impression that George was not minded or not socially capable of doing this for himself since his car accident. That's the purpose isn't it? A: George is not capable of doing this on his own without putting something terrible on there. Q: Why didn't you use his name? A: I didn't make the account. My sister did. Q: I'm sorry? A: So I don't actually know why she put 'Walker'. Q: Well you must have asked her, surely? A: No. I just - that's the name she came up with. She's come up with some weird names for her Instagram pages. Q: Didn't you notice that it was called George Walker? A: It's probably because he likes walking so much, sorry."
It was put to the witness that the reason the name George Walker was used was to "hopefully prevent people from investigating this case from discovering the Instagram account", which she denied.
It was put to the witness that she was here to attempt to assist the plaintiff with his case, with which she agreed.
In re-examination, the witness confirmed that she had deleted photographs posted when the plaintiff had access to his Instagram account. She had used the account to advertise Valentine's Day promotions.

[7]

Evidence of Susanna Varvatselis

Miss Susanna Varvatselis was the elder sister of the plaintiff and his tutor. She described him, prior to the motor vehicle accident, as follows: "A: So George was very independent before the accident, very successful. He was fierce, strong, motivated, he had lots of friends, had a girlfriend, you know, everything was going well for him before the accident. He was a go‑getter, yeah he was very strong. Q: And what about his social life? A: He had a social life, a very big social life, had a lot of friends. His friends would always look up to him, they would always be doing things he was a boys boy, they would go on trips, go out. They were very athletic as well, George was always sports, team player, yeah always the go-to guy with his mates."
She described the plaintiff operating a very successful panel beating business and pizza shop before the accident.
After the accident, she first saw him at the Epworth Hospital. He was in a neck brace. When he was eventually discharged from the hospital, she described the following changes in him: "A: He was a different person, completely different. He didn't talk, didn't want to do anything, didn't want to live, didn't - just nothing. There was nothing."
She gave evidence that the plaintiff complained of being in pain in his neck, also pain in his back occasionally, and his head. She was living away from home and moved back in to look after him. She was asked whether he had improved over time since the accident, and said: "A: He's improved slightly, but it's maintained now. Like, it's - it's stabilised. He has improved. The - the whole things about him not wanting to continue with life any more, you know, he said being dead is better than being like this. That's improved. That hasn't, you know, been said for a while, so that's - yeah, that's improved. But apart from that, he still - he's still depressed, his anxiety, no motivation, yeah."
The witness gave evidence that she worked from home in her own business. She was asked to describe a typical day with the plaintiff: "Q. Can you tell his Honour or give us a bit of a picture of what a typical day is with your brother? A. Sure. Depending if he sleeps well through the night, he might - if he sleeps well through the night, he'll get up at about 9 o'clock, eight, 9 o'clock. You know, I'll ask him, 'Are you hungry, do you want me to make you something to eat?' His response is, 'If you want', or 'Not really.' I'll get him to come in the kitchen, you know. 'Can you open the milk, get it out of the fridge, we'll make some cereal.' He'll sometimes make cereal on his own, but I do it most mornings and then I'll ask him, you know, 'George, do you want to have a shower? I'll get the towel ready for you.' He says, 'No, I don't feel like it' or sometimes I have to push him to, you know, have a shower, hygiene, brush your teeth and then he just goes on his Playstation. I work, so then I'm working. Lunch time will come around. I'll tell him, 'George, I'm going to make something to eat, you hungry?' He'll respond yes or no. Again, come in the kitchen with me. We eat, then I'm back working and he's back on his Playstation. Sometimes, I'll take him for a walk with his dogs or one dog really at a time because they're both really big dogs. I might - what else? I don't know. Then Mum, Steph comes home from work. Dinner, bed, yeah. Q. He does go out from time to time, I think. Is that correct? A. Yeah, occasionally. Yeah. Q. We've heard that he goes to the gym. A. Yep. Q. Is that correct? A. Yep. Q. Does he appear to like the gym? A. Yeah. Yeah. Q. Does he go regularly? A. Yeah. Yeah. Q. Does he tend to go in the morning or the evening? A. It's a bit of both, mornings and it's daytime, like lunch, around then, during the afternoon. Yeah.
The witness described the plaintiff as going out with Peter Natale at night a couple of times. She gave evidence that he had not done any work, that he had very low motivation, and that he took medication. That medication included painkillers for his headaches, and her mother gave him medication for anxiety and an anti-depressant.
She described what she observed of the plaintiff's anxiety in the following terms: "A: So, I can - he will start to mumble, he gets, you know, really frustrated and I can tell he's having an anxiety attack. You know, if I ask him to do something or for example, like he had an anxiety attack taking the dog out once. He called me. He's like - he said, 'Susie I've lost the dog', so I've had to go and collect him. I think he got disorientated and nervous, and yeah, so I had to go and get him, and then we had to go find the dog which I did."
She also described the plaintiff as getting angry in stressful situations and frustrated.
She was asked about the Instagram account and answered: "A: Yes. I'm aware that my sisters and Peter have had an Instagram account for him." She was not involved in that account.
The witness gave evidence that she knew the plaintiff drove a car when he was not supposed to. His previous girlfriend had left him a couple of months after the accident.
When asked what she did on a day-to-day basis to assist the plaintiff, doing things that he would otherwise do himself, the witness gave evidence that she tried to encourage him and motivate him to cook, go walking, and get out of the house. She took him to the shops and also to a movie, however, she described him getting frustrated when he did not understand the movie.
The witness gave evidence that her mother and her sister Stephanie also assisted the plaintiff and that her father took him out.
The witness gave evidence that she made meals for the plaintiff and would prompt him to change his clothes or to brush his teeth. She took him shopping once a fortnight for between two and three hours. She also walked the dogs with him a couple of times a week for half an hour to an hour. When asked whether somebody organised his banking, finance and other administrative type things, she gave evidence that she paid for his clothing and things like that, but that he did not have an income.
The witness gave evidence that the plaintiff grew up in a house full of four women and learned the "qualities" of domestic chores from them, however, today he was not interested and she spent about half an hour a day nagging him to do domestic duties.
The witness gave evidence that she spent an hour per day doing the majority of the domestic chores. Her mother also did some chores, including cooking, as well as Stephanie.
Ms Susanna Varvatselis was cross-examined at length about the assistance she provided to the plaintiff on a regular basis. She gave evidence that if she did not put milk on his cereal, in the morning, he would not eat.
She was cross-examined on a statement she made on 16 October 2019, which became Ex 32. In that statement she stated that the plaintiff sometimes needs to be prompted or reminded to have a shower. When asked how long would she wait before she decided he was not going to shower unless she reminded him, she answered: "A: Well, just coming to the hour in the day. If I see that he hasn't had a shower I'll prompt him, 'George, you need to shower'. Q: What hour? A: It varies, it varies on the day, like, you know, depending on my workload as well at home. I'll come in, I'll pop my head into his room, 'Have you showered?' I'll see if he's showered. 'No, you haven't showered, c'mon time to have a shower.'"
The witness gave evidence that the plaintiff had on occasion left a pan on the stove whilst cooking eggs and left it, causing "smoke like fire". When challenged that she had made that up, she denied that proposition.
The witness gave evidence that she monitored the plaintiff to make sure, when they were walking the dogs, that he did not get disorientated. When asked what caused him to become disorientated, she stated that he suffers from anxiety.
The witness expressed a fear that on an occasion when he had lost the dog, she found him in the park, "Just in crisis mode. He was disorientated. He was frustrated. He was confused." She was challenged that she was just making that evidence up, which she denied.
When asked how often he goes to the gym by himself, she answered: "A: It depends. He could go for a couple of days in a row, or he could not go for a couple of weeks or months, then he'll - just when he's motivated to go."
She gave evidence that it was a constant concern for her that he would become disorientated and step on the road and get hit by a car. It was put to her that there was no prospect of that happening, which she disagreed with.
The witness was challenged as follows: "Q: You see, what I'm putting to you is that you have not exaggerated but made up the deficits that you say that George suffers from, what the problems that he suffers from, just made them up, haven't you? A: No. Q: For the purpose of assisting his claim for damages in this case, haven't you? A: No."
The witness gave evidence that she knew the plaintiff did not have a driver's licence, and that he still drove motor vehicles which could be one of her hire cars. When asked why she did that, she answered: "A: It makes him happy."
She acknowledged that he could get in serious trouble, but gave evidence that he did not understand the repercussions or the consequences of his actions.
In her statement, the witness said at [42]: "I am George's sister and I don't want him to have to be cared for by a commercial carer. I take great joy and gratitude when I see George progress. I'm prepared and am happy to continue to care for George. I accept that circumstances may change in the future."
She gave evidence that she meant that she could meet someone in the future, but she had never been in a serious relationship before.
It was put to the witness that the plaintiff was perfectly capable of doing all of the domestic duties she assisted with, which she denied. She said: "A: George has changed. He is not the same person he was before the accident. I've accepted that and I've come to terms with that, and I'm happy being his carer. There is - that is my main concern in life right now."
The witness was cross-examined about the plaintiff being on the roof of her sister's florist shop with her father. She gave evidence that: "A: If he was on the roof, that would have been my dad pushing him."
It was further put to her that he was perfectly able to go overseas, however, she answered that that was because he was with members of the family when he travelled.
The witness gave evidence that the plaintiff had been brought up to do household chores. When asked what he did before the accident, she gave the following evidence: "A: George did everything. He was living on his own before the accident. He took care of himself. He knows how to, before the accident, housework and all of that."
In her statement, she had said that the plaintiff grew up in a household full of women: "So he often did the dishes, mowed the lawns and other handyman tasks."
She did not mention vacuuming, cleaning or mopping. She was asked: "Q: You see, I want to suggest to you, finally, that what you put in this statement was a deliberate attempt to create a false picture of George's abilities since the accident? A: That's disgusting, first of all. Second of all, that's not true. Q: And second, that you deliberately attempted to create a false picture of a person in such a catastrophic mental state as to need almost full-time supervision from you. That's what you did isn't it? A: No. Q: And that's what it says, doesn't it? A: No. This is not fabricated. This is my life."
There was no re-examination.

[8]

Evidence of Mrs Jackie Varvatselis

Mrs Varvatselis is the mother of the plaintiff. She gave evidence that prior to the motor vehicle accident in January 2014, the plaintiff was always in good health and played a number of sports. He completed his VCE at school and was a particularly social person. She described his motivation for work as fantastic and gave evidence that he had a panel beating shop and a pizza shop as well. He had financed his businesses with money he had saved from working, and money from her father's estate, as well as his parents helping him. She described him as "flourishing" and as someone who had goals to get a house and settle down and have children.
Mrs Varvatselis first saw the plaintiff at the Epworth Hospital. He had a neck brace on and could not move. He expressed that he was in pain "all over".
When he was discharged from hospital and came home, she described the plaintiff as follows: "A: I had a different person; I had a different George. Yep, he became dependent on everyone around him. Yeah, it's chalk and cheese, it was like a new person was in my home. I know it was physically George, it looked like George, but dealing with his pain at the time and him being so reliant on everyone around him, and not being the boy that was always laughing, smiling, yeah, all that got taken away."
Mrs Varvatselis gave evidence that the plaintiff made a lot of progress with his physical injuries. He still suffered from headaches and some back and neck pain which had stabilised. She described his mental state as follows: "A: So George has lost that drive and the motivation, he has no desire to go out and make something of himself any more. He considers his future bleak and dark, he would say to me, you know, 'Well I'm not going to be like him or you know I'm going to - you know it's always depressive and it's very sad.'"
She gave evidence that he spent most of his time at home on Playstation. She was aware that he was driving when he should not be, because his licence had been cancelled by VIC Roads. Prior to the accident, she gave evidence that everyone contributed to the housework, including the plaintiff. He now did nothing. She needed to prompt him to shower, to clean his teeth and to change his clothes. She described his memory as "a big concern of mine". She also described him having difficulty following the plot in movies and being unmotivated to eat.
Mrs Varvatselis gave evidence that she controlled his medication. He was taking Osteo-Panadol for pain and she was trying to use herbal medicines. He had also taken the anti-depressant Cymbalta. She also described him getting angry when placed in any mildly stressful situation. The witness gave the following evidence: "Q: Do you believe that he would be able to go back to work he was doing before? A: No. Q: Why do you think that? A: He's not stable. He doesn't have the motivation, first of all. As much as we try, he's not really in a routine, because as much as we try and say 'clean your teeth, it's get dressed, it's have a shower', as much as we try that, it's really the way he wants to do things. So we - you can only get someone to do as much as what you can, and then you can't force them. Q: Do you believe that he'll be able to do any type of work? A: Any type of work, he wouldn't be reliable. Q: What about his state of depression; has there been any improvement in your observation in that domain? A: He used to be worse, but he has stabilised. So the amount of depression he has hasn't really worsened. So he still suffers from depression and anxiety, but they've seemed to plateau. Like they're the same now. What happens is not unexpected any more. So there's not an improvement, but it hasn't escalated as well."
In cross-examination, Mrs Varvatselis agreed that she worked Monday to Friday. Her direct knowledge of what the plaintiff did during the week relied on her conferring with Susanna during the day. She was aware of him going to the gym and agreed that he might go two days in a row. She stated that she would encourage him to go and that she felt safer if someone went with him. She was also aware that unfortunately he gets in a car and drives there himself.
She denied that the plaintiff was taking advantage of her good nature by doing things for him. She also denied that he was lazy.
Mrs Varvatselis agreed that the plaintiff was an extremely well‑muscled, well‑built young man who showed no signs of under-eating.
Mrs Varvatselis was not aware that within six weeks or so after the accident the plaintiff had done a test for a truck driver's licence. Nor was she aware, until recently, of his application for a motorcycle licence and boat driver's licence.
The witness gave the following evidence: "Q: You see, the other possibility is that perhaps he's using supposed neck and back pain as an excuse for not doing things around the house? A: No, it's more just the motivation; he doesn't have the motivation to do things around the house. Q: Well, see again, that could be just an act of laziness depending on your good nature, and perhaps out of one or more of your daughters to do things for him that he could and should do for himself. That's a possibility, isn't it? A: No, I don't believe so. George was never lazy. So that would not be correct. Q: Well, you see, you say George is never lazy, but he never had this opportunity before the accident, did he? And by that, the opportunity to say, 'I don't want to do this, or I can't do this, and have someone run after him. He didn't have that opportunity before the accident, did he? A: I don't believe George is being lazy. Q: Well you're his mum, but you don't believe he's being lazy? A: He's not being lazy, no. Q: But if he does the kind of things that I've described earlier with the tow truck, doing physical work on the roof of your daughter's shop, the florist shop, when his father tells him to, it may be that there's an element of taking advantage of your good nature, would you agree? A: I don't believe so no."
There was no re-examination.

[10]

The plaintiff's medical evidence

The emergency department clinical record of the Ivanhoe Hospital (Ex A44) contained the notation that the plaintiff suffered with lumbar pain. The relevant history was recorded as follows: "Rolled in car at 7.30 Loss of consciousness Couple of seconds Walked after the accident."
The plaintiff's pain assessment was noted as "9 out of 10".
The Dubbo Base Hospital clinical records (Ex A45) revealed that he was admitted to that hospital at 16:24 hours on 4 January 2014. The progress notes included that he was a middle passenger in a motor vehicle that rolled three times at an estimated speed of 90 kph. The notes record that he complained of neck and upper spinal pain, that he lost consciousness for an unknown amount of time, but he stated "may be a couple of seconds". His Glasgow Coma Score was recorded as 15 on assessment.
The plaintiff was discharged from Dubbo Base Hospital on 5 January 2014 and flew by commercial flight back to Melbourne. On the same day, he was admitted to the Epworth Hospital. He presented in a cervical collar and gave a history of loss of consciousness, being in pain and that he had been vomiting. His period of loss of consciousness was recorded as five minutes.
On 13 January 2014, the plaintiff was transferred to Brunswick Private Rehabilitation Centre and he was admitted there on 14 January 2014.
On 20 February 2014, the plaintiff was discharged from that facility to reside at his mother's home, and into the care of general practitioners, Dr S Hill and Dr I Alekozoglou.
Exhibit A47 included a report from Dr C P Wijesinghe, psychiatrist, to Dr S Hill dated 20 October 2014. That report noted that Dr Wijesinghe had examined the plaintiff on 14 January 2014 and he complained of pain in the neck and upper spine, and also of nightmares relating to the accident, flashbacks, generalised resting anxiety and of accident phobia. He was re-examined on 3 February 2014 when the doctor noted he was morose and irritable, slow in his verbal responses and his recent memory was impaired. He was referred for neuro-psychological testing which confirmed there was evidence of traumatic brain injury. On 18 February 2014, he was prescribed Citalopram, an anti-depressant.
When reviewed as an outpatient on 17 October 2014, he presented as tense and morose. Dr Wijesinghe noted he complained of poor sleep, nightmares, flashbacks of the accident, accident phobia, marked irritability, which involved shouting at members of his family, and feeling depressed and tearful. He described his mood as depressed, anxious and irritable. Dr Wijesinghe noted that he said he had no joy in life and sees his future as hopeless. It was Dr Wijesinghe's opinion that the plaintiff was manifesting an organic personality change as part of his traumatic brain injury. This was manifested as irritability, impulsivity, anxiety and depressed mood.
The neuro-psychological assessment was carried out by Dr N Berberovic, whose report dated 8 June 2014 is Ex A47. Dr Berberovic recorded a history of loss of consciousness following the motor vehicle accident of five minutes. She noted that upon admission to Brunswick Private Hospital, the plaintiff was in the tail end of Post Traumatic Amnesia ("PTA"), and that it appeared that his PTA was definitely greater than 10 days. He presented for assessment wheel-chair bound with flat nonreactive effect. It was clear that he put his best efforts into the testing, however, his effect became labile and he described feeling isolated and finding it difficult to cope. He also felt very anxious going anywhere and in cars.
The plaintiff described that his memory had changed since the accident, stating: "Everything is a problem remembering."
On formal neuro-psychological assessment, the plaintiff's cognitive profile was characterised by Dr Berberovic as moderate-severe reduction in psychomotor speed, visual memory, verbal memory and executive function (including abstract visual and verbal reasoning, switching attention) and mild reduction in fluency. She opined that this cognitive profile, together with reported PTA records, implied the plaintiff has likely sustained a moderate-severe Acquired Brain Injury ("ABI"). She also noted that he presents with marked symptoms of anxiety and depression, both of which are likely secondary to a combination of the ABI and the adjustment to the lifestyle changes caused by the motor vehicle accident.
Exhibit A14 was a report provided by Dr Berberovic to the plaintiff's solicitors dated 27 September 2015. In that report, she recorded that the plaintiff had undergone a follow-up neuro-psychology assessment in July 2015, due to a lack of improvement with treatment at a functional level. Dr Berberovic noted that an MRI scan of the cervical spine revealed minor disc degeneration with minor loss of disc space bulge, without neural displacement. An MRI brain scan detected no abnormalities. At the time of his assessment, he had been unreliable at attending outpatient sessions for physiotherapy and occupational therapy. He presented with avoidance of outings and people and had been generally house bound. He was currently under the care of a psychiatrist and reported ongoing pain in his lower back and neck. He also experienced daily headaches and dizziness which he felt "all the time". He also complained of ongoing memory loss, and difficulties concentrating. The plaintiff stated that he was feeling "down all the time" and experiencing ongoing flashbacks. Those flashbacks concerned the car accident, as did his nightmares.
Dr Berberovic opined that the PTA monitoring scale was not a reliable measure and should not be used as a measure of his traumatic brain injury. That injury would have likely been within the mild range. Upon assessment, Dr Berberovic was of the opinion that the plaintiff's areas of cognitive deficits were less likely associated with his mild traumatic brain injury, and more likely secondary to his psychiatric health. Assessment in respect of mood, anxiety and stress suggested severe levels of mental health issues. Under the heading, "Whether the injuries are consistent with the stated cause?", she opined: "Overall clinical picture of an Adjustment Disorder with depression and anxiety, as well as symptoms of Post Traumatic Stress Disorder ("PTSD") is considered consistent with the stated cause, especially given the background of mild traumatic brain injury (which has now resolved) and his chronic pain condition."
Dr Berberovic went on to opine that the plaintiff was currently unable to return to work to his pre-injury duties. His future return to work will largely depend on recovery that he makes with his psychiatric treatment.
Dr N Elliott, consultant psychiatrist, provided a report dated 15 June 2016 (Ex A12). She reported that she had seen at that time the plaintiff on eight occasions between 18 August 2015 and 17 May 2016. Dr Elliott diagnosed a Chronic Pain Syndrome, PTSD and major depressive disorder. She was of the opinion that the injuries sustained were consistent with the motor vehicle accident and opined that at that time the plaintiff had no work capacity. She went on to state: "His work capacity will need to be reassessed as he progresses with treatment."
Dr Elliott stated that the plaintiff was difficult to engage in treatment, which would need to continue for at least two years.
The plaintiff was assessed by Dr D Weissman, consultant psychiatrist, on behalf of both parties on 8 March 2016. A report of the same date is Ex A4. Dr Weissman stated that: "This is a complex case, mainly because of the history that I obtained from the claimant today, and the claimant's appearance and behaviour on mental state examination. The quality of my assessment and report is dependent on the quality of the history that I obtain from the claimant. Firstly, the claimant's cognition was moderately slowed and impaired. Secondly, he appeared to be sleepy, sedative and drowsy. Thirdly, he appeared to be very vague, sullen, disinterested and less than compliant with the interview process. These are not criticisms of him, but observations or impressions based upon my clinical experience and expertise. Even though it seems that he sustained a mild traumatic brain injury in the transport accident, it seems to me that the bulk (if not all) of the above symptoms and features are due to so called psychological, functional and non‑organic factors including his depressed psychiatric state, chronic pain and medication side effects too."
Dr Weissman noted that the plaintiff might have sustained a mild traumatic brain injury in the motor vehicle accident, but on the balance of probabilities, he opined: "His current apparent cognitive dysfunction is predominantly, if not wholly, caused by so called psychological, functional and non-organic factors."
Dr Weissman was of the opinion that he was suffering from mild to moderate classical and discernible chronic PTSD symptoms and traumatisation features directly due to the motor vehicle accident. The most appropriate diagnosis was one of Chronic Adjustment Disorder ("CAD") with mixed disturbance of emotions and conduct/behaviour of moderately severe intensity or severity. The plaintiff's whole person impairment was assessed at 30%.
Dr Weissman reassessed the plaintiff on 11 April 2017, and his report of the same date became Ex A5. He noted: "During the entire interview, I wondered about the degree to which, if any, he was displaying/demonstrating abnormal illness behaviour and, if any, conscious malingering. (However, it is quite possible that the above presentation was pcychologically/depression-mediated/based)"
Under the heading, "Diagnosis", Dr Weissman repeated the fact that this was a complex case and his reasons for that opinion as outlined in his previous report. He was of the opinion that whilst it was possible that the plaintiff sustained a mild, closed head injury/mild traumatic brain injury in the accident, this was difficult to assess in the presence of moderately severe psychological, functional and non-organic factors which seem to adversely impacting upon, and dampening his cognitive performance.
Overall, Dr Weissman was of the opinion that the plaintiff was still suffering from: "A moderately severe, mixed, reactive depressive and anxiety syndrome, with tension, frustration, psychomotor retardation, anhedonia, ennui, pain‑and symptom focus and preoccupation, and loss of interest, energy levels, motivation and drive."
Dr Weissman noted that the plaintiff had been unable to return to anywhere near his pre-accident level of function in respect of any activity. He diagnosed a CAD with mixed disturbance of emotions and behaviour, with moderately severe intensity. He was also suffering from symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition also known as a Sematic Symptom Disorder ("SSD").
Dr Weissman re-examined the plaintiff on 23 January 2018 and provided a report of the same date (Ex A6). Overall, Dr Weissman noted a slight improvement in the plaintiff's overall psychiatric state and level of function. He opined: "There is no doubt that the claimant has found it extremely difficult to cope, adapt and adjust to the accident itself and its consequences and sequelae. He has adapted, adjusted and coped in a very poor and dysfunctional manner. This is not a criticism of him, but an observation or impression. This is why I prefer a diagnosis of CAD and Major Depressive Disorder. In my view, Mr Varvatselis is still suffering from at least a mild to moderate chronic PTS and anxiety syndrome, as well as a moderately severe CAD with mixed disturbances of emotions and behaviour, and symptoms and features of a Chronic Pain Disorder (associated with psychological factors and a general medical condition) also known as SSD."
He was of the opinion that the plaintiff's psychiatric symptoms, conditions and impairment had stabilised.
Under the heading "Prognosis", Dr Weissman opined that the plaintiff's psychiatric prognosis "remained quite uncertain and guarded, and that he was totally psychiatrically incapacitated for all work for at least the medium term future associated with significant pecuniary disadvantage."
In a supplementary report dated 6 March 2018 (Ex A7), Dr Weissman opined that he did not think the plaintiff was capable of providing instructions and therefore required a litigation guardian. Further, he did not believe that the plaintiff was able to manage his financial affairs at present and would not be able to manage any potential lump sum compensation payment.
That opinion was supported by Dr I Walters, clinical neuro-psychologist, who assessed the plaintiff on 1 August 2016 and whose report became Ex A8. It was Dr Walters' opinion that the plaintiff was suffering from a severe global cognitive impairment that is caused by his depression. The plaintiff's cognitive state status made him unable to participate in the workforce and his future capacity for work depended on his psychiatric recovery. Dr Walters considered that his cognitive impairment had not yet stabilised and it was very likely that he will be capable of managing his finances once his psychiatric status improves.
A further report of Dr Weissman, obtained at the conclusion of the evidence in the trial, became Ex E and will be referred to below.
Finally, in respect of the psychiatric evidence, the plaintiff was assessed by Dr Gregory White, on behalf of the Medical Assessment Service ("MAS"), and his Certificate and Reasons became Ex A23. On the basis of the psychiatric diagnosis of PTSD, Dr White assessed the plaintiff's whole person impairment at 47% permanent impairment.

[11]

Medical evidence supporting the plaintiff's physical injuries

In addition to the hospital records referred to above, the plaintiff remained under the care of his local medical officer, Dr I Alekozoglou. In a report dated 31 December 2015, that doctor reported: "He continues to complain of neck, upper back pain, dizziness, with left hand and arm numbness and feeling weak. He has poor concentration, low self‑esteem, ongoing flashbacks of the accident, loss of motivation and no longer enjoys going out and associating with friends. Clinically he was a quiet young man with normal muscle tone who mobilised with two crutches. There was no deformity of the neck, shoulder or spine. He was wearing a semi-rigid collar. There was tenderness over the left of the neck and upper back with loss of sensation over the left shoulder."
Dr Alekozoglou's diagnosis was one of concussion and soft tissue swelling over the cervical and thoracic spine. He was of the opinion that the injuries had stabilised, but that the plaintiff would need psychological support.
In a report dated 19 November 2019, Dr Alekozoglou reported that on 28 August 2015 the plaintiff had requested that he write a report for VIC Roads, to support his ability to drive safely, which the doctor had declined due to his concussion and medications.
Dr J G Bodel, orthopaedic surgeon, examined the plaintiff on 24 May 2016. In a report dated 17 October 2016, he noted that the plaintiff complained of continuing head and neck pain, that a head down posture or use of his arms overhead could aggravate the pain, that he has referred pain into the left arm, that he suffers suboccipital pain and headache and that he has lower back pain aggravated by prolonged sitting, bending, twisting or lifting.
Dr Bodel diagnosed a soft tissue injury of the neck and back and a minor rotator cuff injury to the left shoulder. He also noted a "non-verifiable radicular complaints in the left arm".
Dr Bodel opined that the plaintiff was fit for light to moderate manual tasks, but was not fit to return to work overall because of the totality of his injuries, including his psychological injuries and the effect of his brain injury and head injury. His capacity for work in the future was therefore restricted.
Dr Bodel reviewed the plaintiff on 1 August 2019. In the report of the same date, he recorded that the plaintiff still had pain at the base of the neck and in the lower part of his back which could be aggravated by a head down posture or use of his arms overhead. He still could not sit, bend, twist or lift without aggravating the lower part of his back, although he had no significant referred pain into either arm or leg. Dr Bodel confirmed his diagnosis of soft tissue musculo ligamentous strain in the neck and back. There had been no change in the clinical circumstance in regard to the neck and back since his last assessment (Ex A10).
Mr R J Simm, orthopaedic surgeon, provided a joint report dated 16 February 2016 (Ex A11). Mr Simm diagnosed unresolved soft tissue injuries to the cervical and lumbar spine. A prognosis for the cervical and lumbar injuries was for persistent symptoms "which may continue for an extended period".
Following an orthopaedic expert conclave between Dr C Thomas (on behalf of the defendant) and Dr J Bodel, a joint report dated 18 November 2019 was produced. Both experts agreed that the plaintiff had suffered a non-specific mechanical neck and back injury caused by the motor vehicle accident. Both experts agreed that the plaintiff has a Chronic Pain Syndrome with a severe SSD. As to the cause of the plaintiff's condition, both experts agreed that the plaintiff suffered soft tissue injuries to the neck and back and the SSD as a direct consequence of the motor vehicle accident. Both further agreed that the prognosis for function in the neck and back should be quite reasonable, and both do not believe the plaintiff is at risk of suffering post traumatic degenerative problems in either the neck or back.
Both experts agreed that the treatment the plaintiff had undergone to date had been reasonable, appropriate and necessary. Both agreed that the plaintiff will require intermittent physiotherapy, referral to an exercise physiologist and a gymnasium-based exercise program to optimise recovery from his musculo‑skeletal injuries.
From a purely physical injury perspective, both experts agreed that the plaintiff should be capable of moderate manual tasks on a full-time basis. Lastly, he had a capacity to work to a moderate extent on a full-time basis. Both experts agreed that the plaintiff, from a physical injury point of view, does not require regular domestic assistance for household maintenance and cleaning activities. He may, however, require some domestic assistance for very heavy household chores that may occur from time to time. From a purely physical point of view, both experts agreed that the plaintiff had minimal functional restrictions on activities at home.
In the light of the plaintiff's co-morbidity from his psychological issues, it was unlikely that the plaintiff would be able to achieve a return to work in the foreseeable future.

[12]

The plaintiff's occupational therapy assessment

On 16 June 2016, the plaintiff was assessed at his home by Ms Fiona Goron, who provided a report dated 31 August 2016 (Ex A17). She recorded his injuries arising from the motor vehicle accident as a soft tissue injury to C1-C5, loss of consciousness and closed head injury. She listed his current impairments as follows:

"Reduced range of movement in his cervical spine;
Reduced range of movement in his right shoulder;
Reduced strength in his right shoulder and upper limb;
Reduced range of motion in his thoracolumbar spine;
Pain within his cervical and thoracolumbar spine, as well as his right shoulder;
Significant psychological and psychiatric impairments, including depression, adhedonia, intrusive thoughts and nightmares, volatile physical and verbal outbursts; and
Cognitive impairments, including impaired memory, poor planning, orientation impairments and other executive functioning deficits."

Ms Goron noted that the plaintiff's impairments were complex due to the combination and severity of residual cognitive, psychological and physical impairments. In her opinion, he required assistance for domestic activities and transportation.
Ms Goron provided a detailed analysis of the plaintiff's past gratuitous care, estimating a need for 36 hours of care per week in the first 26 weeks, down to 19 hours per week for the period from 7 January 2015 to 17 June 2016, a period of 75 weeks.
For the future, Ms Goron was of the opinion that the plaintiff would require personal care assistance to prompt and aid his routine for a period of two years, following which, that routine could withstand fluctuations in his mental health. She also recommended a number of equipment purchases to assist his domestic activities.
Ms Goron provided a supplementary report dated 27 November 2019 (Ex A57). Her report was based on further medical evidence which included the reports of Dr Elliott, Dr Bodel and Dr Weissman, referred to above. She noted there had very little physical, cognitive or psychological change to the plaintiff's injury related impairment since her initial assessment in 2016. In her opinion, the plaintiff required an initial 24.5 hours per week for self-care domestic activities, transportation and personal management for two years. After that time, he required 9.5 hours per week of assistance for those activities. Her assessment was in line with her previous assessment in 2016.

[14]

The defendant's evidence

The defendant tendered numerous exhibits during the cross-examination of the plaintiff. They included documents relating to the plaintiff's application for a heavy vehicle licence, a motorcycle licence and a boat driver's licence, as well as his application for a private security individual licence (see Exs 1 to 9). Numerous photographs shown to the plaintiff during his cross-examination, either downloaded from his Instagram account, which were stills taken from video footage of the plaintiff taken during surveillance, comprised Exs 10 to 21, and Exs 24 to 29. Exhibit 22 was the USB stick containing surveillance footage, only part of which was shown in court in accordance with a schedule of the surveillance film comprised in Ex 31. Exhibit 32 was a copy of the statement of Ms Susanna Varvatselis.
The defendant tendered a bundle comprising five documents which became Exs 30.1 to 30.5. Exhibit 30.1 were the driving records of the plaintiff. Exhibit 30.2 was an email from Dr Berberovic detailing a home visit to the plaintiff where the plaintiff did not respond. Exhibit 30.3 was a report from Dr Berberovic to Dr Elliott dated 27 October 2016. It concerned her assessment of the plaintiff carried out on 7 September 2016 and 5 October 2016. She recorded that: "On presentation, George exhibited flat effect with very limited reactivity. His eye contact was poor. George was able to sustain his attention on tasks and switch attention between tasks, although he appeared fatigued. There was no evidence of formal thought disorder."
Psychological testing revealed a full scale IQ score of 58 (in the extremely low range). That was an unusual finding, given he had previously been assessed as within the borderline range in 2015. Dr Berberovic opined that the plaintiff's injuries were most likely suggestive of a mild traumatic brain injury, rather than any more severe type, and she would have expected his cognition to have improved. She postulated that one possibility was that the plaintiff's mental health condition was having a significant impact on his cognitive functioning.
Exhibit 30.4 was a report from Dr C Thomas, consultant in rehabilitation and pain medicine, dated 17 January 2018. Dr Thomas assessed the plaintiff on 12 January 2018. He was of the opinion that the plaintiff had suffered a mild traumatic brain injury, possibly a post-concussional syndrome, which had almost certainly resolve, but had left him with a chronic pain syndrome and an adjustment disorder with depression and anxiety, as well as symptoms of PTSD (adopting Dr Berberovic's assessment).
Dr Thomas opined that the plaintiff's prognosis from a physical perspective was positive and that he was not at risk of developing a post-traumatic degenerative problem. The plaintiff's unfitness for work was more related to his psychiatric condition and not due to his pain syndrome.
Exhibit 30.5 was a report of Ms Tamara Lindsay, forensic accountant, dated 6 November 2019. In her report, Ms Lindsay challenged a number of assumptions upon which the plaintiff's accountant assessed past and future economic loss (referred to as "the Vincents report"). She expressed considerable concern about the reliability of the claimant's financial statements, which were not prepared until after the motor vehicle accident.
The issues raised by Ms Lindsay were addressed by Mr Lee in his supplementary report referred to above (Ex A26). He identified the material differences of opinion between Ms Lindsay and himself as being: "(i) Can the plaintiff's financial documents be relied upon to form an opinion of his earning capacity?; and (ii) What is the value of Mr Varvatselis' earning capacity but for the accident?" He then went on to amend his assessment as set out above.

[15]

Additional evidence relied on by the plaintiff

At the conclusion of the evidence, the plaintiff sought to have the surveillance film viewed by Dr Weissman to obtain his opinion. Dr Weissman undertook to review the surveillance film, and to provide a report on short notice. A report was sought from him jointly by the parties by letter dated 6 December 2019, which set out questions for Dr Weissman. As well as the video footage, Dr Weissman was qualified with photographs, the transcript of the proceedings and a number of exhibits, including the conclave report of Drs Bodel and Thomas dated 18 November 2019. That letter, and the report of Dr Weissman dated 8 December 2019, became Ex E in the proceedings.
Dr Weissman set out some general comments about his approach to surveillance material generally in medico-legal cases. Those comments included: "From a psychiatrist perspective, it is very difficult and arguably impossible to know what a person is thinking and feeling when viewed on surveillance footage. This is an important concept. However, I appreciate, to some extent, a person's behaviour (in the video surveillance footage) may be partly reflective of his/her intrapsychic/internal thinking and feeling state."
Dr Weissman noted that the plaintiff's solicitors had informed him that a total of 691.5 surveillance hours were expended, of which the total video time of the plaintiff was 5.57 hours, thus, less than 1% of the total surveillance time took up any film of any relevant activity by the plaintiff. Dr Weissman commented that this was very significant. From it, he assumed that he was meant to accept that there was no evidence to suggest that the plaintiff was actually doing any "visible activity" or "relevant activity" during more than 99% of the total surveillance time.
Dr Weissman watched the video footage and read five surveillance reports from the defendant's investigators (totalling 121 pages including photographs).
Dr Weissman then went on to summarise some, but not all, of the plaintiff's activities shown in the surveillance video. Importantly, he made no reference to the footage of the plaintiff apparently carrying out some work with his father on the roof of his sister's florist shop, nor does he refer to him running with his dog in the park.
Dr Weissman noted that he re-read each of his reports, which were not contemporaneous with the video surveillance footage. He made the following commentary on the material: "Having watched the video surveillance material, there is nothing that suggests that the plaintiff is not feeling frustrated and depressed, that he's not feeling anxious and that he does not have reduced interest, energy levels, motivation and drive. Similarly, there is nothing in the video surveillance footage that indicates that is not suffering from the reported/subjective PTS and anxiety symptoms and traumatisation features. On the other hand, in the video surveillance footage, and in the social media/Instagram photographs, Mr Varvatselis was generally better kempt and not dishevelled compared with his presentations to me. Again, the surveillance footage was not contemporaneous with my reports. Furthermore, the surveillance video footage contained less than 1% of the overall surveillance investigation. It would be fair to state that in the surveillance video footage and in the social media/Instagram photographs, Mr Varvatselis was not psychomotor retarded and it is therefore possible that he has mildly improved - psychiatrically - since I last saw him on 23 January 2018."
Dr Weissman was therefore of the opinion that between October 2018 and September 2019, the plaintiff's psychiatric state might have mildly improved. Regarding his most recent diagnoses, there was no reason for Dr Weissman to change his opinion that the plaintiff was still suffering from a mild to moderate chronic PTS and anxiety syndrome, and also symptoms and features of a Chronic Pain Disorder/SSD with predominant pain. In addition, there was no reason for him to change the diagnosis of CAD with mixed disturbance of emotions and behaviour, however, perhaps it was now moderate intensity rather than moderately severe intensity.
Dr Weissman concluded that there was no reason for him to change his opinion that the plaintiff remains totally incapacitated for all work for at least the medium term future and that there would need to be a significant and substantial improvement in his psychiatric state before one could consider that he has regained some sort of partial capacity for suitable duties.
Dr Weissman was not required for cross-examination on his report.

[16]

The defendant's submissions

Learned Senior Counsel for the defendant relied on a detailed written outline of submissions. Whilst the defendant had admitted breach of duty of care, he did not admit that the plaintiff suffered anything other than minor physical injuries caused by the accident. Specifically, the defendant denied the plaintiff suffered a traumatic brain injury, a major depression or PTSD, or a chronic pain disorder.
The defendant also submitted that the plaintiff had not been socially isolated and withdrawn since the motor vehicle accident, and that evidence given by him and his family members to that effect, was false. The defendant further submitted that the evidence given about the Instagram account was false and that the images on that account fairly demonstrated the plaintiff had capacity to engage in normal social activities for a person of his age.
The defendant denied the plaintiff was incapacitated for his pre-accident work as a panel beater and/or pizza chef. Rather, it asserts that the plaintiff was restored to his pre-accident capacity for full time work by the time he completed the practical element of his medium rigid truck driver's test on 3 April 2014, three months after the accident. The plaintiff's physical capacity for full-time work was demonstrated by the surveillance film, and in particular, the film of the plaintiff repairing the roof of his sister's florist shop, and performing arduous exercises in the gym. The defendant described the plaintiff as a "well-muscled, lean and fit young man".
The defendant asserted that the plaintiff's claim that he cannot work in any capacity due to his depression, was false.
The defendant further denied the plaintiff had any need for domestic assistance or supervision. It was submitted that the assertion the plaintiff lacks motivation to undertake domestic tasks was unconvincing. The defendant submitted that the plaintiff's mother and his sisters carry out all of the domestic tasks in the home and that he has learned he can do nothing and everything will be done for him.
The defendant impugned the plaintiff's credibility, contending that his evidence was at best unreliable, but lacked any credibility. Examples of that were his evidence about the truck driver's licence, the motorcycle rider's licence, both of which were obtained in April 2014, and a boat and PWC licence obtained in October 2014.
The defendant submitted that the plaintiff gave false evidence about the circumstances in which a motorcycle permit was obtained using his licence by another person. The defendant claims that the statutory declaration made by the plaintiff about that to Victorian Police was false, and significantly undermines his credibility.
The defendant submitted that the plaintiff has travelled overseas on four occasions since the motor vehicle accident, twice to Bali (March 2014 and August 2016), once to the United State of America (April 2017), and to China (2019). Whilst the plaintiff was accompanied on each of those occasions by either his girlfriend and/or father and/or other relatives or friends, the defendant asserts that he did not require a companion when travelling overseas and was and is capable of travelling independently. Further, the plaintiff did not disclose his overseas travels to any of the psychologists or psychiatrists who examined him for the purposes of the case. For example, when examined by Dr Berberovic on 8 June 2014, the plaintiff failed to disclose that he had travelled to Bali less than three months beforehand. Similarly, when assessed by Ms Goron on 31 August 2016, the plaintiff did not disclose that he had returned from Bali three weeks beforehand. When examined by Dr Weissman on 11 April 2017, the plaintiff did not disclose that he was flying to the United States the next day.
It was submitted that these non-disclosures affected the plaintiff's credibility and the reliability, not only of his evidence, but the evidence of the psychologists and psychiatrist who relied on his narrative.
The defendant submitted that the images downloaded from the plaintiff's Instagram account were completely inconsistent with the evidence that he gave of social isolation, being depressed and virtually housebound. It was submitted that the evidence of the plaintiff and his sisters as to the establishment and maintenance of the Instagram account was fanciful. It undermined the credibility of not only the plaintiff but his family members.
Also, the surveillance film was completely inconsistent with the plaintiff's evidence and his family's portrayal of his daily existence. That surveillance evidence was captured over a period of around 18 months.
It was submitted that "it is important that few or none of the significant activities shown in the surveillance film had been conceded by the plaintiff before he saw the film in the witness box".
It was submitted the plaintiff said he infrequently attended the gym and supposedly limited himself to the treadmill. In fact, he was shown doing strenuous exercises at the gymnasium. The plaintiff did not disclose he performed physical work around his sister's florist shop, much less on the roof. Further, he did not admit to walking his dogs alone.
The defendant submitted that the plaintiff admitted, when confronted with the film of him alighting from a tow truck, that he had loaded a vehicle onto the rear of the tow truck, drove the tow truck to his father's business, and unloaded the vehicle. No such activity had previously been admitted.
Also, when confronted with film of him sharing a meal with an unknown female, he admitted that he had met her and other females through a dating site known as "Tinder", something he had not previously admitted. The film also showed him in a supermarket pushing a female in a wheelchair, and at Bunnings, purchasing timber.
The defendant submitted the plaintiff's evidence lacked any credibility and the court would be satisfied that the plaintiff has feigned, and continues to feign, both his physical and psychiatric disability.
The defendant submitted that the evidence of the plaintiff's tutor, his sister Susanna Varvatselis, was at best grossly embellished and more probably largely false, and was deliberately contrived to assist the plaintiff's claim. It was submitted that it should be rejected.
Other family members who gave evidence, namely, his sister Natalie and mother Jackie Varvatselis, saw the plaintiff less frequently. An explanation for him doing nothing around the house was that he was just lazy. This was to be contrasted by the plaintiff's reaction when told to do something by his father.
Under the heading "How the medical evidence should be approached", the defendant submitted that to a greater or lesser extent, all the medico-legal experts in the case had to rely on the truthfulness of the plaintiff's presentation to them, and that presentation was not truthful or genuine.
The defendant submitted that the plaintiff's recovery from his physical injuries could not be doubted. Both Dr Thomas and Dr Bodel ultimately agreed that the plaintiff had minimal functional restrictions on activities at home. Both agreed that the plaintiff should be capable of moderate manual tasks on a full‑time basis.
The defendant submitted that Dr Berberovic was not convinced the plaintiff had suffered a traumatic brain injury in the accident in January 2014. She referred to the short period of unconsciousness (if any), the testing for post traumatic amnesia being unreliable, the lack of any radiological evidence of brain injury and the fact that neuro-psychological testing could not be carried out because of the plaintiff's presentation.
The defendant submitted that the plaintiff's presentation to Dr Weissman and others was either grossly embellished or simply a charade. Dr Weissman noted that psychiatrists are inevitably dependent on the truthfulness of the plaintiff. When asked to prepare a joint report after viewing the surveillance film, he prefaced his supplementary report (Ex E) with a comment that: "It is probable that this supplementary report will pose more questions than it answers."
It was submitted that the fact that the film taken represented only 1% of the total time spent by investigators in surveillance, was irrelevant. What was relevant was that there was no film showing the plaintiff behaving in a disabled state. Rather, all the film taken shows the plaintiff behaving normally, exhibiting normal facial expressions and showing no sign of depression or psychological withdrawal. There was nothing to suggest the film captured the plaintiff only on "good days" and not on his "bad days". It was submitted that it was far‑fetched to assert that the plaintiff was housebound by his depression whenever he was not observed.
The defendant conceded that Dr Weissman's opinion that film cannot explicitly show what the subject is thinking or feeling, is true.
The defendant pointed to the omission of Dr Weissman to refer to the film of the plaintiff working on the roof of his sister's florist shop, or that of him alighting from a tow truck and his admission that he had loaded a vehicle onto the rear of the tow truck and subsequently unloaded it. It was submitted that these activities were probably the most important part of the film so far as the plaintiff's capacity to work was concerned. Nor did Dr Weissman comment on the fact that within 10 months after the accident the plaintiff had applied for the three licences referred to above.
The defendant submitted that there was reason to conclude that the activities shown in the film were not typical for the plaintiff. There was nothing in the film to suggest the plaintiff was not feeling frustrated or depressed, or lacking in motivation and drive. There was nothing in the film to show that he is experiencing any such feelings. Whilst Dr Weissman commented that there was nothing in the film suggesting that the plaintiff is not suffering from some form of PTSD or anxiety, however, the defendant submitted that there is nothing in the film to suggest that he is so suffering.
The defendant submitted that the real question was whether what was shown in the film was inconsistent with the plaintiff's presentation to Dr Weissman.
Dr White, who assessed the plaintiff for the MAS, simply accepted the plaintiff's presentation at face value. His conclusion as to the percentage of whole person impairment was of no significance other than the plaintiff's entitlement to damages for non-economic loss. It was submitted that extreme caution should be exercised in attaching any significance at all to that percentage for the purpose of assessing damages under any other head, relying on Brown v Lewis [2006] NSWCA 87.
The defendant submitted that the plaintiff's presentation to psychiatrists and psychologists has been grossly embellished since the first assessment by Dr Berberovic on 8 June 2014, and that the plaintiff's entitlement to damages under all heads is either very small or nil.
It was submitted that the fact that the defendant's insurer paid for treatment arose pursuant to its duty to pay benefits under its charter in Victoria. The fact that it paid statutory benefits does not amount to any admission that the plaintiff suffered injuries and disabilities caused by the accident in January 2014. Rather, the evidence subsequently obtained by the insurer indicates many of the expenses it paid should not have been incurred.
The defendant finally submitted that the plaintiff had not discharged his onus of proving that he suffers from the injuries, disabilities and incapacity that are the basis of his case, and any damages awarded should be minimal.
In his oral submissions, learned Senior Counsel for the defendant rehearsed the written submissions, accepting that the plaintiff had suffered minor injuries constituting soft tissue injuries to his neck and back, but denying any major injury, and in particular, any brain injury. It was submitted that on the basis of a short period of loss of consciousness, unreliable testing for post-traumatic amnesia, the absence of any radiological evidence, the validity of the neuro‑psychological testing, and on the demeanour of the plaintiff himself, the court would not be satisfied that the plaintiff suffered a traumatic brain injury. At most, it was submitted that the plaintiff may have suffered a mild traumatic brain injury.
Dr Berberovic was of the opinion that the effect of any traumatic brain injury had long been assumed by the plaintiff's psychological disorder. The psychiatric diagnoses of depression, adjustment disorder and PTSD all depended on the subjective presentation of the plaintiff. At all times the plaintiff had appeared in the witness box to be forlorn, tired or fatigued and monosyllabic in his responses. The same had occurred on assessment by the various psychologists and psychiatrists. Whilst it was a matter for the court to determine whether he was genuine or not, the defendant submitted that the plaintiff has at the very least, grossly embellished his evidence. In fact, he had feigned it, or it was a charade.
The defendant rehearsed his submissions that the plaintiff bore the onus of proof and his evidence could not be accepted, for example, with respect to his social media Instagram account and the film which showed he was not socially isolated. Rather, social media demonstrated that he had numerous friends who commented regularly on his account.
The defendant rehearsed its submission in respect of the plaintiff's capacity for work and his motivation. It was submitted that the court would not accept that he is not motivated, when he clearly was when asked to do activities by his father.
The defendant rehearsed its submission as to the evidence of witnesses called on behalf of the plaintiff. The evidence of his sister Susanna would cause great concern to the court. It depicted the plaintiff at a level of dependency of that of an infant. His domestic cares and needs were, on the basis of her evidence, appropriate for a most severe degree of brain damage. In any event, there was no evidence of anything the plaintiff did domestically prior to the accident. It was also inconsistent with his demonstrated strength in the exercises he carried out at the gym.
Learned Senior Counsel for the defendant rehearsed the written submissions he had made as to the plaintiff's lack of credit, highlighting the licence applications referred to, and in particular, the motorcycle licence. It was submitted that his explanation that a friend, Mr Taleb, had applied for the licence using his driver's licence, was ridiculous, and constituted a "body blow to his credit".
The defendant submitted that the plaintiff's father, although nominated as the defendant, was, because of the third party insurance coverage, a witness in the camp of the plaintiff. His absence from witness box was therefore significant, and as no explanation for his absence had been proffered, an inference can be drawn that his evidence would not have assisted the plaintiff's case.
The defendant also rehearsed the written outline of submissions concerning the credit issues arising from the plaintiff's overseas trips, his Instagram account and the surveillance film.
As the plaintiff had not satisfied the onus of proof upon him to establish damages, given that he had completely recovered from his physical injuries within three months, the defendant submitted that he was entitled to minimal damages for non-economic loss and all other heads of damage. Further, there was no evidence that he would be incapable of managing any amount awarded to him, whilst acknowledging that the defendant's prior position was that he should not be entitled to a substantial verdict.

[17]

The plaintiff's submissions

Counsel for the plaintiff relied on a written outline of submissions which set out the evidence referred to above concerning the plaintiff's pre-injury status. It was submitted that a finding should be made that the plaintiff was: "A fit, healthy, active, social, highly motivated 20 year old at the time of the accident. His entrepreneurial flare had seen him open two businesses, and although they were in very early stages, it is clear that he was doing well and working extremely hard. The only appropriate inference to draw is that the plaintiff's motivation and drive would have seen him continue to flourish in his businesses (and maybe other businesses), and most likely continue to increase his income".
Counsel set out the orthopaedic injuries sustained by the plaintiff in the motor vehicle accident. Upon discharge from Brunswick Hospital, he was initially in a wheelchair and had pain at the base of the neck, radiating into the cervico-thoracic region and across both shoulders. He also suffered pain in the central lumbar region, radiating to the buttocks. Dr Simm diagnosed unresolved soft tissue injury to the cervical and lumbar spine. He also suffered a closed head injury "with a substantial psych-injury disturbance".
There was substantial agreement between the orthopaedic experts, namely, Dr Bodel for the plaintiff and Dr Thomas for the defendant. Their joint expert conclave report described the injury as a "non-specific mechanical neck and back injury, with a chronic pain syndrome with severe Somatic Symptom Disorder. Over the last two years the plaintiff entered a "chronic phase of his problems. He comes under the umbrella of chronic disease management".
From a physical perspective, both orthopaedic experts agreed that the plaintiff "has the capacity to work to a moderate extent on a full time basis. In light of his co-morbidity from the apparent psychological issues, it is unlikely he will able to achieve that in the foreseeable future."
It was submitted that the plaintiff has only a moderate residual incapacity from a physical perspective.
In respect of the plaintiff's cognitive/psychiatric injuries, it was noted at Ivanhoe Hospital that he had suffered a loss of consciousness for a couple of seconds. He was diagnosed with a closed head injury and at Brunswick Hospital, assessed by Dr Berberovic as having a post-traumatic amnesia "definitely greater than 10 days". Following neuro-psychological assessment, he was assessed as having "a moderate-severe reduction in psychomotor speed, visual memory, verbal memory and executive function, and a mild reduction in fluency". He presented with marked symptoms of anxiety and depression. Dr Berberovic opined "both of which are likely secondary to a combination of ABI and the adjustment to the lifestyle changes caused by the MVA".
In September 2015, Dr Berberovic was of the opinion that the plaintiff suffered from an adjustment disorder with depression and anxiety, and symptoms of PTSD.
It was submitted that Dr Walters in 2016 concluded that the plaintiff had a "severe global cognitive impairment, which is secondary to depression". She concluded that the cognitive impairment was due to the psychiatric illness and it has had a profound effect on his social, domestic and recreational activities.
Dr Elliott also diagnosed a Chronic Pain Syndrome, PTSD and a major depressive disorder as a consequence of the motor vehicle accident.
The plaintiff relied on the reports of Dr Weissman, who in March 2016, was of the opinion that the plaintiff suffered a depressed psychiatric state, chronic pain and medication side effects. Any mild acquired organic cognitive dysfunction had been subsumed by other factors. It was submitted that the plaintiff was diagnosed with a moderately-severe mixed reactive emotional syndrome and the appropriate diagnosis was "Chronic Adjustment Disorder with mixed disturbance of emotions and conduct/behaviour and moderately‑severe intensity or severity". There are also some features of Chronic Pain Disorder.
It was submitted that in April 2017, Dr Weissman confirmed his view that any mild traumatic brain injury had been subsumed so that any cognitive dysfunction was predominantly, if not wholly, caused by psychological functioning and non-organic factors. Dr Weissman reported slight improvement in the plaintiff's overall psychiatric state and level of function in January 2018. However, at that time, he noted that the plaintiff remained socially withdrawn with a psychiatrically based functional impairment in terms of domestic chores.
The plaintiff relied on the MAS assessment undertaken by Dr White in July 2018. Dr White diagnosed a chronic PTSD. He noted concentration problems, although the deficits were not obvious.
The plaintiff submitted that none of the various psychologists or psychiatrists had been cross-examined and the credit issues raised by the defence evidence did not erode the efficacy of their opinions.
As to the surveillance video, the plaintiff submitted that the evidence given by the plaintiff and other witnesses called on his behalf was not inconsistent with the film. In any event, less than 1% of the film exposed was deemed worthy of being shown. Of surveillance undertaken over 691.5 hours, five hours and 56 minutes of film were exposed. An inference arose that this corroborates that for the bulk of the time the plaintiff was essentially housebound, introverted and not socialising or working.
It was submitted that in any event, the film (including film of the plaintiff at the gym, driving motor vehicles, being out of the house, and finally on the roof of his sister's florist shop, as well as driving a tow truck), was consistent with the evidence of the plaintiff and his family.
Further, the evidence of Natalie Varvatselis explained the setting up of the Instagram account and together with the evidence of Peter Natale, explained how photos came to be posted on that account and the purpose for it. It was submitted that it is well known that such social media sites are used to promote what is essentially a fiction, presenting individuals in a light which generally promotes the owner as "more social and active than is reality".
It was submitted that the obtaining of licences by the plaintiff within a short time of the accident did not undermine his credit. The truck licence, the security licence and boat licence were all completed at the behest of the plaintiff's father. It was submitted that the motorcycle licence was applied for by a Mr Taleb, who had access to the plaintiff's details. It was submitted that there appears no reason for the plaintiff denying he had a motorcycle licence if that was the case.
With respect to the plaintiff's work capacity, the plaintiff relied on Dr Weissman's opinion that the plaintiff was totally incapacitated for all work for at least the medium term future. Having seen the surveillance film, Instagram photos and transcript of evidence of the trial, Dr Weissman did not change his opinion.
Dr Walters was also of the view that the plaintiff was unable to return to the workforce, and his future capacity for work depended on psychiatric recovery. Earlier in June 2016, Dr Elliott had stated that the plaintiff had no capacity to work at that stage. There was therefore no medical evidence inconsistent with the view that the plaintiff is totally incapacitated for work. His prognosis as far as work capacity is concerned, is entirely dependent on his psychiatric condition. According to Dr Weissman, that prognosis is "very uncertain and guarded and most likely poor, negative and unfavourable". It was submitted that there is a significant difference between what was shown on the video, namely, the plaintiff assisting his father in some repair work on a roof over a short period of time, to a work environment involving an eight hour day, doing physical work under some stress.
The plaintiff set out the following actuarial factors: ACTUARIAL FACTORS Date of Birth 26 March 1993 (26 years of age) Date of accident 4 January 2014 Number of years until retirement (age 67) 39 years - 5% multiplier = 910 Life expectancy 64 years - 5% multiplier = 1.022 Domestic assistance Varied from 2012 - $27.70 to $31.03 Past Average - $29.77 per hour Future $31.03 per hour Paid $61.70 to $93.60 per hour Gardening - $40.00 per hour

[19]

The plaintiff's submissions in respect of each head of damages are dealt with in my assessment below.
In his oral submissions, Counsel for the plaintiff highlighted the stark difference here between the case for the plaintiff and that of the defendant. The defendant's case, whilst it had not been pleaded, amounted to a claim that the plaintiff was endeavouring to defraud the third party insurer. It was submitted that there was no evidence whatsoever supportive of that claim. The orthopaedic evidence was conclusive of injury, the experts being ad idem. The psychiatric evidence on the other hand was all one way in favour of the plaintiff, including the joint reports of Dr Weissman and Dr Walter.
It was submitted that the evidence of all of the witnesses of how the plaintiff was before the accident was entirely consistent. He was an unusually motivated, entrepreneurial young person with a very active social life. Further, in his evidence, the defendant could point to no denials by the plaintiff as to activities he could do which were shown to be incorrect or wrong. The defendant had not denied going to the gym, driving the tow truck, or being on the roof of his sister's florist shop with his father.
Counsel submitted that the plaintiff's psychiatric and psychological conditions were complex. In her neuro-psychological report dated 8 June 2014, some six months following the accident, Dr Berberovic had reported on problems with the plaintiff's memory. At that time, he described his memory changes since the accident stating: "Everything is a problem remembering." That included messages others had told him and appointments. In Dr Berberovic's opinion at that time, on formal comprehensive neuro‑psychology assessment, the plaintiff's cognitive profile was characterised by "Moderate-severe reduction in psychomotor speed, visual memory, verbal memory and executive function (including abstract visual and verbal reasoning, switching attention) and mild reduction in fluency."
Dr Berberovic was of the opinion that his cognitive profile, together with reported PTA records, implied the plaintiff had likely sustained a moderate‑severe acquired brain injury. It was also noteworthy to her that the plaintiff presented with marked symptoms of anxiety and depression, which in Dr Berberovic's opinion were likely secondary to a combination of the ABI and the adjustment to the lifestyle changes caused by the motor vehicle accident.
It was submitted that the plaintiff's ABI had been subsumed by his psychological condition and that his ongoing memory problems were more informed by his severe depression and anxiety. There was no contradictory opinion put forward by the defendant to that conclusion, and therefore all of the medical evidence and lay evidence was one way on that issue.
Further, it was submitted that the court would accept that the evidence of the plaintiff's two sisters and his mother, and in particular that of Susanna Varvatselis, would be accepted. They placed the extent of the plaintiff's disability very high as concerned siblings and mother. There was, however, no "insidious family conspiracy", as contended for by the defendant.
Counsel for the plaintiff rehearsed his submissions regarding the surveillance film. The film exposed represented 1% approximately of the 691 hours the plaintiff was subjected to surveillance. It was submitted that the plaintiff's evidence was not contradicted by the film, and it was open to the court to conclude that a lack of exposure of the plaintiff over a long period of time corroborates both the evidence of the plaintiff and his family, namely, that he was socially isolated and goes out very rarely. This was also supported by the evidence of Mr Peter Natale.
It was submitted that the defendant had not made out its allegation of deceit against the plaintiff.
It was submitted that it was noteworthy that the defendant elected not to rely on any expert medical report other than the joint reports referred to above. The MAS report of Dr White was significant in that Dr White was of the opinion that the plaintiff was 47% whole person impaired, which was a significant impairment. He had diagnosed PTSD. This was an independent assessment and diagnosis. It would clearly affect his ability to hold down a job.
Counsel submitted that the court would accept the plaintiff's explanations for his father pushing him to get the various licences, being the truck licence, boat licence and security licence. It had never been the case for the plaintiff that he had suffered very substantial physical injuries. Whilst he was physically harmed and suffers a pain disorder, it was the interplay between that pain disorder and his psychological condition which the doctors accepted as genuine.
Counsel rehearsed his submissions in respect of the Instagram account. It was submitted that there was nothing strange or weird about using a different name for an Instagram account. It was established on the evidence that Natalie Varvatselis and her sister had established the account and that Natalie used it to promote her business. Their evidence was believable, particularly in respect of not allowing the plaintiff to control the account, having posted unpleasant things relating to his depression, when he had access to it. The photos of the plaintiff promoted him as a good looking man which amounted to a modern way of making him feel good about himself.
Nothing about the Instagram account detracted from the fact that the plaintiff is severely depressed.
It was submitted that the fact that the plaintiff goes to the gym demonstrated that it was the one thing he was motivated to do. The fact of him driving a car when he was not allowed to do so on medical grounds, was an intractable problem for his family members.
It was submitted that the absence of the plaintiff's father from the witness box and the plaintiff's case did not give rise to any adverse inference. It was open to the defendant to call him as a witness, particularly when he was the nominated defendant. Whilst it was conceded that the plaintiff's father was in the plaintiff's camp, a forensic decision had been made not to call him, however, no adverse inference should arise against either party in those circumstances.
Counsel rehearsed his submissions in respect of the plaintiff's capacity for work. It was submitted that the expert evidence established that he was totally psychologically incapacitated for work into the indefinite future. Nothing shown in the film could diminish that.
Counsel referred to the joint orthopaedic expert report in which both experts agreed that the plaintiff has a chronic pain syndrome with a severe somatic symptom disorder, i.e. a psychological overlay.
Counsel for the plaintiff rehearsed his submissions in support of each head of damage, which are referred to below in my determination. In addition, the plaintiff's claim for funds management is supported by the joint opinion of Dr Walters and Dr Weissman to establish that he required such assistance.

[20]

The defendant's submissions in reply

Learned Senior Counsel for the defendant made the following submissions in reply. First, the plaintiff's submissions on the defendant's case "amounting to fraud" involved a reversal of the onus of proof, relying on Nguyen v Tran [2018] NSWCA 215 at [55] to [65]. It was submitted that the onus remains on the plaintiff at all times to prove his case on the balance of probabilities.
Secondly, it was submitted that the author of the MAS certificate, namely, Dr White, could not be compelled to be cross-examined, pursuant to s 59A(2) of the Motor Accidents Compensation Act 1999 (NSW) ("MACA"). Whilst his report was admissible, it could be given little weight, relying on Brown v Lewis, supra, [20] to [24].
Thirdly, no explanation was given for not calling the plaintiff's other sister who was responsible for setting up the Instagram account. An inference should, in those circumstances, be drawn to the effect that her evidence would not have assisted the plaintiff, relying on Manly Council v Byrne [2004] NSWCA 123.
Fourthly, it was submitted that the fact that the plaintiff was not licenced to drive was not accident related. It came about as a result of the plaintiff not providing VIC Roads with the necessary documentation.
Fifthly, it was submitted that s 126 of MACA applies to the assessment of the plaintiff's future economic loss, in accordance with the principles in Lane v Nominal Defendant [2004] NSWCA 405.
Sixthly, the plaintiff's submission that there should be nil vicissitudes on any assessment of future loss was extraordinary, and the usual discount for vicissitudes of 15% should be applied.
Finally, the defendant submitted that the plaintiff's claim for future commercial care should be guided by the principle in Miller v Galderisi [2009] NSWCA 353 at [16] and [21] to [24]. Here, there could be no award for commercial care, as the plaintiff would always be subject to the gratuitous care of his sister. Applying s 141B of MACA, the plaintiff had not passed the threshold for such an award.

[21]

Determination

This matter proceeded to trial by way of an assessment of damages. In his defence, the defendant by his insurer, pleaded: 1. "The defendant admits breach of duty of care. 2. The defendant does not admit the plaintiff sustained injury, loss and damage as alleged or at all. 3. The defendant does not admit the plaintiff is entitled to damages, interest and costs as alleged or at all."
The defendant therefore put the plaintiff to proof on the question of his entitlement to damages, and if entitled, how are those damages to be assessed. The onus of proof, on the balance of probabilities, remains on the plaintiff at all times. There was, however, no issue that the plaintiff was involved in a serious motor vehicle accident where the vehicle in which he was travelling as a passenger, left the highway and rolled over several times. Nor is it in issue that the plaintiff was hospitalised, first at Ivanhoe Hospital, where it was noted that he had suffered a loss of consciousness for a short duration, and then he was airlifted to Dubbo Base Hospital. Upon his return to Melbourne, he was immediately admitted to the Epworth Hospital, where he remained for nine days before being transferred to Brunswick Private Hospital for rehabilitation. At Brunswick Hospital he was referred for neuro‑psychological assessment and found to have an acquired brain injury and cognitive impairments. He was discharged from that hospital on 20 February 2014.
Nor is there any issue as to the plaintiff's life prior to the accident. I find as a fact that he was a highly motivated young man, who had established two businesses which he was pursuing day and night, was socially active, fit to the extent of being well-muscled, and following an active social and recreational life.
Further, I accept the plaintiff's submission that the medical evidence in this complex case is all one way. The orthopaedic surgeons qualified on both sides are in agreement, namely, that the plaintiff suffered soft tissue injuries to his cervical spine and lumbar spine, which had generally resolved by the end of 2014. Further, there was general agreement among the psychiatrists and psychologists who assessed and examined the plaintiff that, on the balance of probability, he had suffered a closed head injury which was consistent with the nature of the collision. The fact that he had lost consciousness for a short period of time was also consistent with the diagnosis arrived at by Dr Berberovic upon neuro-psychological testing in 2014, that he had suffered an acquired brain injury. That had led to cognitive deficits, and in particular, loss of memory, but it had in time been subsumed by the onset of depression, anxiety, and symptoms of PTSD. A presumptive inference arises that the plaintiff's injuries and their sequelae were materially contributed to, and therefore caused by, the motor vehicle accident - see Adelaide Stevedore Co Ltd v Forst (1940) 64 CLR 538 at 563. Further, there was no cross-examination of any of the doctors by the defendant and therefore no alternative hypothesis established in respect of the plaintiff's injuries and their sequelae.
Those conditions were evident in the plaintiff's appearance in the witness box. He gave evidence, both in chief and throughout an extensive cross‑examination, with a flat effect, demonstrating regularly an inability to recall matters which did not necessarily mean that he was being evasive, and he demonstrated anxiety by his posture and his appearance of being tired, and at times lethargic in the witness box.
The plaintiff's evidence of living with his mother and two sisters in substantial social isolation and losing his circle of friends, but for Mr Peter Natale, who gave evidence on his behalf, was consistent with that of his family members. He had been unable since the accident to return to pursuing either of his business ventures, one of which had been taken over by his father, i.e. the panel beating business. It was not put by the defendant that there anything nefarious about that.
The defendant case strategy was to attack the plaintiff's credit, to demonstrate that his evidence was so unreliable that it could not be accepted. There were a number of prongs to that attack, namely: 1. The fact that within three to six months the plaintiff had applied for a security licence, a medium rigid axel truck licence, a boating and PWC licence, and, in a somewhat different category, a motorcycle licence. 2. The fact the plaintiff had travelled overseas on four occasions since the accident. 3. That the plaintiff was shown in the surveillance film to be acting inconsistent with the evidence he gave of being socially isolated and incapable of looking after himself, by being shown to be alighting from a tow truck (and admitting that he had loaded and unloaded the tow truck), going to the gym on successive days, walking his dog in the park and running with the dog, being in a café with an unidentified female, being at a movie complex with an unidentified female, going to a shopping complex with a person in a wheelchair, being with his father on the roof of his sister's florist shop, apparently fixing sheets of corrugated iron, working with timber so as to build a platform on a utility vehicle, and buying similar timber at a Bunnings store. 4. By posting photographs and comments on an Instagram account under a fictitious name, "George Walker". 5. By contending that evidence given on behalf of the plaintiff by his family members could not be accepted as being corroborative of the plaintiff's case. Rather, the defendant contended that evidence, particularly concerning what was done to provide him with domestic assistance, was far-fetched and fanciful.
I will deal with each of these matters seriatim. First, however, I make the following findings of fact: 1. I find that prior to the motor vehicle accident on 4 January 2014 the plaintiff, who was 20 years of age, was a fit and healthy young man who was self-motivated to open and pursue two separate businesses, namely, the panel shop which operated from Glenbarry Road, Campbellfield, and the pizza shop which he operated at night. He had established these businesses with money he had saved, money he had inherited from his grandfather, and some money provided by his parents. 2. I find that, prior to the accident, he was living an active social life, was totally independent living out of home, and was a fit young man who enjoyed going to the gym and other recreational pursuits. 3. I find that in the motor vehicle accident the plaintiff suffered a closed head injury with a short period of loss of consciousness, together with injuries to his cervical and lumbar spines. The plaintiff required hospitalisation for his injuries from 4 January 2014 until 20 February 2014. 4. I find that upon discharge from the Brunswick Rehabilitation Hospital, the plaintiff returned to his mother's home where he was cared for by his mother and two sisters. I find further that the plaintiff was unable to return to either business that he had established, and that the pizza shop was closed down and his father continued to operate the panel shop. 5. I find that the plaintiff's orthopaedic injuries have largely settled within three to six months of the accident, however, he has continued to suffer a chronic pain syndrome in his neck and to a lesser extent, in his lower back, which developed into a Somatic Symptom Disorder. 6. I find that the plaintiff has not returned to work even though he has been physically able to do so in some capacity since the end of 2014. I find that the reason for that has been the onset of his depression and anxiety, secondary to a mild acquired brain injury. 7. Having regard to the whole of the medical evidence referred to above, I find that the plaintiff continues to suffer from depression, anxiety and symptoms of a PTSD. I find there has been some improvement in his symptoms over time, and particularly over the last two years.
Secondly, the defendant submitted that an inference should be drawn that the absence of the defendant, who was the plaintiff's father, and his sister from the witness box gives rise to an inference that their evidence would not have assisted the plaintiff's case, based on the principle in Jones v Dunkel & Or (1959) 101 CLR 298. Such an inference may be drawn against a party where the party would be expected to, but does not, call a witness who could give evidence on a relevant matter and that failure is unexplained - see MSPR Pty Limited v Advanced Braking Technology Limited [2013] NSWCA 416 per Macfarlan JA at [53], where his Honour stated: "The inference to be drawn in these circumstances is not that the witness' evidence would have been adverse to the party, but simply that it would not have assisted the party's case. … The inference permits the court to make a finding unfavourable to the party with great confidence. … For a Jones v Dunkel inference to be drawn, there must be evidence that the party against whom it is to be drawn is required to explain or contradict. This evidence is available to found a judgment against the party. Otherwise to base a judgment against a party simply upon his or her failure to call evidence would involve the erroneous drawing of an inference that the party's evidence would have been positively adverse to his or her interest."
Here, Counsel for the plaintiff properly conceded that the plaintiff's father was a witness in the camp of the plaintiff and no explanation was given for his absence from the witness box.
The principle in Jones v Dunkel, supra, had been considered by the Court of Appeal in Manly Council v Byrne & Anor, supra, per Campbell J (Beazley JA and Pearlman AJA agreeing) from [44] and following. His Honour referred (at [53]) to Payne v Parker [1976] 1 NSWLR 191 and the dissenting judgment of Glass JA who set out the correct principles to be applied. His Honour then said: "54 The inferences licensed by Jones v Dunkel are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, that a Jones v Dunkel license is drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must be first available to be drawn, on the evidence which has been admitted, an inference against that party. Thus, in a case where was direct evidence from other witnesses about the particular issue (i.e. whether the light was on), the question arose as to whether inferences licensed by a Jones v Dunkel could be drawn at all (see [56])."
His Honour then referred to Cross on Evidence (Aust Ed), which recognised an exception to the rule in Jones v Dunkel, namely, that the rule does not operate to require a party to give merely cumulative evidence (see [61]), and at [65] his Honour referred to the following statement from Wigmore on Evidence: "The failure of a party to introduce an available witness does not give rise to any inference or presumption that the testimony of the witness, if he had been called, would have been unfavourable to such a party, where other qualified witnesses have testified for the party concerning the matters, and the testimony of the uncalled witness would have been merely cumulative or corroborative."
In Manly Council v Byrne, supra, the uncalled witness was held to be equally available to both parties by the Trial Judge. Whilst the court held that the fact that a witness who was not called is equally available to both plaintiff and defendant is not always sufficient to avoid a Jones v Dunkel inference against either or both of those parties where there was ample evidence from other witnesses to base findings of fact, the strength or weakness made out by that evidence bears on whether inferences should be drawn from other evidence not having been presented (see [74]). Here, notwithstanding the plaintiff's father was a witness who was available to be called by both parties, and notwithstanding that he was a witness within the plaintiff's camp, given the cumulative content of the evidence given by the plaintiff's mother, his two sisters and Mr Natale, means that no inference could be drawn to the effect that the plaintiff's father's evidence would not have assisted the plaintiff's case. His absence from the witness box certainly could not disturb any findings based on that other evidence. The same applies to any evidence that may have been provided by the plaintiff's sister Stephanie.
The defendant's attack on the plaintiff's credit, and his submission that the plaintiff's evidence was rendered so unreliable that it could not be accepted, on the five bases set out in [312] above, is not made out for the following reasons: 1. The evidence concerning the plaintiff's applications for the various licences referred to within three to six months of his discharge from hospital established that each application was made at the behest of his father, at a time when the plaintiff was recovering from what were agreed to be soft tissue injuries. At that time, the full extent of his acquired brain injury, and the psychological sequelae therefrom had not manifested. In any event, there is no evidence whatsoever, notwithstanding extensive investigation of the plaintiff's activities by the defendant, of the plaintiff actually using any of the licences that were applied for. Similarly, whilst the plaintiff's evidence in respect of the motorcycle licence applied for in his name had the appearance of irregularity, there was no evidence whatsoever that he ever used such a licence. I reject the submission made by the defendant that the plaintiff's statutory declaration made to police about this was false. I therefore disregard all of that evidence as being relevant to the question of the reliability of the plaintiff's evidence. 2. Similarly, the fact that the plaintiff travelled overseas with his father or other family members on four occasions does not reflect directly on his credit. Whilst it is true that those trips were not reported on by his treating doctors, no doctors were called by either party to clarify the content of conversations that took place at the examinations, and the limitations of such evidence, in terms of a foundation for a finding on reliability of the plaintiff's evidence, is clearly of limited utility - see Mason v Demasi [2009] NSWCA 227. 3. The surveillance film, which comprised less than 1% of film exposed by the defendant's investigator over a period of 691.5 hours, did not impugn much of the plaintiff's evidence. Before being shown the film, the plaintiff had not denied being capable of the various activities shown therein, and having been shown the film he admitted those activities. Thus, the defendant's submission (in [231] above) that "few or none of the significant activities" shown had been conceded by the plaintiff before he saw the film, was not a fair summary of his evidence. I accept the plaintiff's submission that much of the film was consistent with the evidence of the plaintiff and his family members and that, other than the activity of attending the gym, most of the physical activities that the plaintiff was shown to be carrying out, were consistent with his physical capacity, as opined upon by the orthopaedic specialists, and were carried out at the behest of his father. I also accept the opinion of Dr Weissman that it is very difficult, if not impossible, to discern what a person is thinking and feeling when viewed on such film. 4. The extensive cross-examination of the plaintiff in respect of the Instagram account, carried out under a fictitious name, was curious and became curiouser throughout the trial. I accept the evidence given by the plaintiff's sister, Natalie Varvatselis, as to the establishment of the account and I further accept the evidence of Peter Natale as to how photographs came to be posted on that account. Having regard to the whole of the evidence, in respect of that matter, I accept their evidence that the account was established to put a positive spin on the plaintiff's social activities so as to promote his own welfare, rather than to avoid detection for engaging in physical or social activities inconsistent with the case he was bring in court. I therefore make no adverse credit findings of the plaintiff based on that evidence. 5. I do not accept the defendant's submission that the evidence given on behalf of the plaintiff by his family members could not be accepted as being corroborative of the plaintiff's case. I find each of the witnesses who gave evidence was doing their best to be truthful and to assist the court, and none of them could be subject to adverse findings. Rather, it was clear, that the plaintiff was being somewhat overprotected by, not only his mother, but by his sisters, having regard to the effect of his injuries on him. 6. For those reasons, I do not accept the defendant's submission that the plaintiff's evidence was so unreliable that it could not be accepted.

[22]

Assessment of damages

The purpose of damages is to place an injured person in the position he or she would have been, but for the injuries suffered in the motor vehicle accident, subject to the constraints and limitations imposed by the MACA. The authorities make it clear that, notwithstanding the difficulties in doing so, the courts must approach the task of assessment of damages by doing justice to each party against a benchmark of reasonableness. This is a complex task where what may appear to be relatively minor physical injuries result in severe psychological sequelae.
The plaintiff is entitled to non-economic loss damages by reason of being assessed as suffering a whole person impairment of greater than 10% pursuant to s 131 of MACA. In this case, the plaintiff was assessed by Dr White as having permanent impairment based on his psychological injuries of 47%. Pursuant to s 61 of MACA, this is conclusive evidence of the fact that the plaintiff's degree of permanent impairment is greater than 10% - see Brown v Lewis (2006) 65 NSWLR 587 at 591. There is no dispute here that the assessment of damages for non-economic loss is at large, subject to a statutory cap of $565,000.00. In assessing damages here, I have taken into account the plaintiff was 20 years of age at the time of the accident and was working hard to pursue two businesses, whilst living a full life. He has been deprived of the ability to pursue his business and recreational interests, with the exception of attending the gym, during a period which comprised six formative years of his life to date. The impairments he suffers are ongoing and are likely to endure into the indefinite future. Having regard to the whole of the evidence, I assess his non-economic loss at $200,000.00.
The plaintiff has incurred treatment expenses to date of $86,928.94, which have been paid for by the Victorian TAC and to which it is entitled a credit.
Whilst not pleaded by the defendant, nor raised by him in submissions, the plaintiff is under a duty to mitigate his damages, and by refusing the care assistance package offered by the defendant's insurer, failed to do so. Further, his evidence in relation to the medication he is taking, namely, that it is provided by his mother and is mainly herbal medication, was somewhat unsatisfactory. He will, however, require ongoing supervision by his local medical officer and psychological and psychiatric intervention for a period of some five years. I would disallow the other claims made on behalf of the plaintiff as lacking in evidentiary basis, namely, the claims for pain management, occupational therapy intervention, case management, and recreational therapy. The plaintiff will require medical supervision, psychological intervention and anti-depressant medication from time to time and I therefore assess his future out of pocket expenses at $30,000.00.
The assessment of the plaintiff's claim for future economic loss is problematical in that both of the businesses the plaintiff was operating at the time of the accident were very new and it is difficult to assess the prospects of their ongoing commercial viability and profitability. Section 126 of MACA provides that a court cannot make an award of damages for future economic loss unless the plaintiff first satisfies the court about the assumptions about future earning capacity, or other events on which the award is to be based, accord with the plaintiff's most likely future circumstances, but for the injury. Further, the court is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.
The expert evidence concerning the past economic loss of the plaintiff diverges on the basis that the evidence of pre-injury earnings is not sufficient to calculate such loss with precision (evidence of Ms Lindsay), whereas the plaintiff's expert does so (evidence of Mr Lee) in the sum of $419,290.00. In fact, whilst the plaintiff appeared to be highly motivated to pursue both businesses, the evidence established that no income tax returns had been compiled as at the date of the accident and the prospect of running two businesses day and night successfully over a lengthy period of time brought obvious challenges. The plaintiff, however, has suffered a loss since the accident over a period of six years which cannot be calculated with precision, and for that period I assess damages in a lump sum of $180,000.00.
I assess future economic loss on the assumption that, but for the injury, the plaintiff would have continued to be entrepreneurial, and to develop the two businesses he had established. The plaintiff clearly has a residual earning capacity based on his physical capability, and has had some improvement in his psychological state over the last two years. It was understandable, and I accept the plaintiff's evidence to the effect that as a result of the motor vehicle accident he "did not want to have anything to do with cars". With the prospect that psychological improvement will continue, I am not prepared to find that he has no earning capacity for the rest of his working life. However, I find that the plaintiff has suffered a diminution of his earning capacity which is, or may be, productive of financial loss (see Medlin v State Government Insurance Office (1995) 182 CLR 1 at 3). I find that the plaintiff should be in a position to return to work, at least on a part-time basis, within the next five years, and thereafter work full time in any endeavour of his choice. The calculation is incapable of arithmetic precision, and therefore I propose to award a lump sum buffer for his claim for future economic loss in the sum of $250,000.00.
The plaintiff's claim for past domestic assistance is governed by s 151B of MACA. The evidence established that the plaintiff was fully independent at the time of the accident and living by himself. Following his discharge from hospital, he returned to his mother's home and therefore s 141B(2) does not apply. I am satisfied the threshold contained in s 141B(3) has been satisfied and that domestic care and assistance has been provided gratuitously by his mother and sister for at least six hours per week, and for a period of at least six consecutive months.
The plaintiff's counsel advocated that damages for past domestic assistance be assessed on an average of 14 hours per week for an average rate of $30 per hour, in a total sum of $129, 780.00. In Sampco Pty Limited v Wurth [2015] NSWCA 117, the Court of Appeal held that such an approach was not permissible (per Basten JA, Meagher JA and Adamson J agreeing). I do not accept the findings of Ms Goron that gives rise to a claim for care for the plaintiff for 36 hours per week, down to a more recent regime of 19 hours per week. I further find that the plaintiff's need for care was overstated by his sister, Susanna Varvatselis, in her evidence. The plaintiff's need for care was greatest following his discharge from hospital and for the year following when he was most affected by his physical injuries and the onset of the psychological sequelae to his closed head injury. For that year, I have allowed 14 hours per week at $30 an hour, a total of $21,840.00. Thereafter, I have allowed 7 hours per week at $30 per hour, for a period of 5 years, a total of $54,600.00. The total award of damages for past domestic care and assistance will therefore be $76,440.00.
The plaintiff's claim for future care is based on 9.5 hours per week, to be provided initially by family members, and later on, a commercial basis. I accept the defendant's submission that the claim for assistance to be provided on a commercial basis has not been made out here, given the dedication and devotion shown by the plaintiff's sisters to his needs. I am not satisfied that such assistance will be required beyond another two years. I therefore assess damages for future domestic assistance, based on 7 hours per week, in the sum of $21,840.00.
I therefore assess the plaintiff's claim as follows: Non-economic loss $200,000.00 Past treatment expenses $86,928.94 Future treatment expenses $30,000.00 Past economic loss $180,000.00 Future economic loss $250,000.00 Past gratuitous domestic assistance $76,440.00 Future domestic assistance $21,840.00 Total $845,208.94

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