Abdallah v Transport Accident Compensation

[2016] VCC 1945

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-02090

MOHAMED ABDALLAH	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 November 2016
DATE OF JUDGMENT:	15 December 2016
CASE MAY BE CITED AS:	Abdallah v Transport Accident Compensation
MEDIUM NEUTRAL CITATION:	[2016] VCC 1945

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – injury to the spine – psychiatric impairment – credit

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Dordev v Cowan & Ors. [2006] VSCA 254; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ansett Australia Ltd v Taylor [2006] VSCA 171; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA; Katanas v Transport Accident Commission [2016] VSCA 140

Judgment:                Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with Mr Y Chen	Slater and Gordon
For the Defendant	Ms A Magee QC with Mr A Coote	Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 23 October 2009 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”.

4       The body function pursuant to sub-paragraph (a) relied upon by the plaintiff is the spine.

5       The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6       The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]

[1](2000) 1 VR 79

7       In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant” or “marked”: see Humphries & Anor v Poljak.[2]

[2][1992] 2 VR 129 at 140-1

8       Counsel for the plaintiff did not pursue an application for an organic brain injury under sub paragraph (a).[3]

[3]Transcript “T” 72

9       The plaintiff also brought an application pursuant to sub-paragraph (c) for a psychiatric impairment.

10      The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[5] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[4][1998] 3 VR 833

[5](1995) 21 MVR 314

11      Winneke P, in Mobilio,[6] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act: see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.

[6]Mobilio v Balliotis (supra) at 833

12      A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[7]

[7][2005] VSCA 227

13      An application pursuant to sub-paragraph (a) for an organic brain impairment was withdrawn. 

14      The plaintiff swore two affidavits and he also relied on an affidavit from his wife, Fatima, sworn 29 March 2016.  The plaintiff was cross-examined.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

15      The plaintiff is presently aged twenty-seven, having been born in September 1989.  He is married with a young baby and lives at home with his parents.

16      The plaintiff left school at the start of Year 11 in 2006 and then worked as a floor tiler for a few months.  In 2007, he began TAFE and completed Certificates 1 and 2 in Business Management. 

17      The plaintiff deposed that in 2007, he began working at Celebration Cellars and eventually became the store manager.  While working there, he also helped out occasionally in his father’s milk bar, which was at the front of the house in which the family were then living in Narre Warren.  He left Celebration Cellars in about 2008, as it was too far to travel from home to work every day.

18      As the plaintiff confirmed in cross-examination, he was not studying at the time of the accident, as he told a number of doctors and deposed in his 2016 affidavit.  He denied he was trying to improve his case by giving that history.[8]  It also became apparent that he was not the store manager at Celebration Cellars, and only attended on an infrequent basis to fill in when there was an emergency.  He was never paid for this work and did it mainly for experience.[9] He was paid in cigarettes, soft drink or food.[10]

[8]T25

[9]T21

[10]T69

19      The plaintiff deposed that prior to the accident, he was not working, and he was helping his father out at the milk bar.  He was looking for a job in retail or in a trade.

20      Prior to the said date, the plaintiff had some superficial boxing-related injuries and normal childhood cuts and abrasions.  He was in good health and able to undertake an unrestricted range of social, domestic, recreational, work and sporting activities.  However, in cross-examination, he agreed he had issues with erectile dysfunction prior to the said date.[11]

[11]T17

21      On the said date, the plaintiff was involved in a transport accident while a rear seat passenger in a car.  He did not remember the actual impact of the accident, but remembered other people in the car yelling as the driver lost control.  He was told the driver had lost control and the car hit a concrete pylon and the force of the collision threw him through the window and onto the road.

22      In cross-examination, the plaintiff seemed to suggest he did have a memory of the accident, although he had told all doctors he had no recollection thereof.[12]

[12]T13-14

23      The plaintiff claimed, as a result of the accident, he suffered loss of consciousness, retrograde and post-traumatic amnesia, a closed head injury, injury to the neck and lower back, scarring to the back of the head, forehead and right eyebrow, scarring to the ankle and psychological injuries.

24      After the accident, the plaintiff was taken to Dandenong Hospital, where he was an inpatient for five days.  He had stitches in his right eyebrow and scalp, and underwent an x-ray, CT scan, and MRI scan of his head and neck.  The CT scan of his head revealed swelling and bruising, and the MRI scan of his spine revealed damage to his neck.  He was fitted with a collar, which he was told to wear for six weeks.

25      The plaintiff denied having told doctors he was put in a coma whilst in hospital and that he was an inpatient for two weeks.[13] He was discharged on 28 October 2009 into his parents’ care, rather than stay as an inpatient at the Victorian Rehabilitation Centre (“VRC”).  He attended outpatient care at the VRC under Dr Vaidya Bala, consultant physician.

[13]T26

26      Initially after the accident, the plaintiff had significant pain in his neck, back and left ankle.  He was experiencing dizziness, problems with his balance and a blocked sensation in his ears.

27      The plaintiff agreed he in fact had problems with dizziness before the accident.  He had always had dizzy spells.  He could recall complaining to Dr Whiteside in February 2009 of collapsing and feeling dizzy after having taken Viagra.[14] He confirmed that dizziness was not related to the accident and denied exaggerating his condition when he led doctors to believe it was accident related.[15]

[14]T30

[15]T32

28      The plaintiff had regular check-ups as an outpatient and in January 2010, his cervical collar was removed.  He saw a psychologist at the VRC until 7 January 2010, and had regular physiotherapy and hydrotherapy.  He had treatment from an occupational therapist who came to his house to provide advice on equipment to improve his safety and independence.  He was also shown exercises he could do to improve his neck and back pain.

29      In May 2010, the plaintiff’s regular treatment at the VRC stopped.  He was then reviewed by Dr Bala a few more times until about early 2012.

30      From 2012 to 2013, the plaintiff sought regular treatment from various general practitioners at Narre Warren, mainly Dr Ngo and then Dr Blumberg.  He got on well with these doctors and he would have told them what was troubling him.[16]

[16]T35

31      The plaintiff agreed his lower back was not really giving him a problem in mid-2010 and that the first time he mentioned it to his general practitioner was in May 2012.[17]  He had back pain shortly after the accident.  He then developed back pain a year or two later.  The level of his back pain went up and down.[18]

[17]T37

[18]T38

32      The plaintiff was cross-examined about his involvement in an assault noted by Dr Ngo in March 2010.  The plaintiff could not remember the assault or being punched in the face, as Dr Ngo recorded.  Any injury noted by Dr Ngo and treatment by injection and stiches in relation thereto related to the fall after the plaintiff took Viagra.  However, he could recall being grabbed and his phone taken.  It was his friend who was assaulted.[19] The plaintiff denied he had made a deliberate decision not to tell medical examiners about this incident.[20]

[19]T45

[20]T48

33      In 2011, Dr Ngo recommended the plaintiff take antidepressants; however, he was reluctant to do so.  In 2012, he started taking Endep, as his anxiety and depression had not improved.  He stopped this medication in June 2013, as he did not like the side effects. 

34      The plaintiff deposed that in 2012, Dr Ngo referred him to a psychologist in Dandenong.  He went to make an appointment; however, decided not to go ahead with it as he did not want to talk about the accident.

35      The plaintiff could not recall seeing a psychologist in Stud Road,[21] but then said he was referred to a lady psychologist at a practice other than the VRC.[22]

[21]T48

[22]T49

36      In June 2013, the plaintiff and his parents moved to Point Cook.  He tried finding a new medical clinic; such as Boardwalk Clinic, however, he had been told that it did not see Transport Accident Commission patients.

37      As of July 2014, about once a month, the plaintiff got a neck and back massage at his local shopping centre to manage his pain.

38      At that stage, the plaintiff suffered from the following symptoms:

·Pain, stiffness and reduced range of motion in his neck of fluctuating severity

·Constant pain and reduced range of movement in his lower back which fluctuated in severity

·Intermittent pain extending from his lower back into both legs and feet

·Reduced standing and sitting tolerance

·Difficulty running for prolonged periods of time

·Reduced hearing in his left ear

·Intermittent dizziness

·Intermittent headaches

·Difficulty sleeping

·Reduced concentration and memory

·Scarring at the back of the scalp, bridge of the nose and right eyebrow, and left ankle and the back of the left heel

·Psychological injuries including Adjustment Disorder, Depression, Anxiety and mood swings, increased anger, frustration and short temperedness, loss of self-esteem, flashbacks, avoidance of being a passenger, and of the accident side, and sensitivity upon exposure to accident reminders.

39      The plaintiff agreed all these problems currently affected him.  In combination, they cause him difficulty and pain and impact on his ability to do things.  He also agreed he had problems with his left shoulder.  [23]  He still has left ankle pain but it is not his “severe” pain.[24]

[23]T58

[24]T59

40      As of July 2014, the plaintiff was taking Panadol at least four times a day, and occasional Nurofen.  He tried to avoid stronger pain medication because of the side effects thereof.

41      After the accident, the plaintiff tried to help his father out in the milk bar, but the work aggravated his neck and back pain.

42      At the end of about 2013, the plaintiff tried to do concreting and tiling with a friend but found it difficult to stand up for long periods due to his back pain, and he had to take regular breaks.  He found it difficult to carry heavy bags of cement and other heavier items due to his neck and back pain.  He did the job for two days and did not get paid.  This attempt aggravated his neck and back pain significantly, and he had to stay home and rest in the days thereafter.

43      The plaintiff had been looking for work in a bottle shop or in a retail job that involved sales.  He worried about prolonged standing due to the pain in his back, and worried about finding a job due to his physical pain, combined with his reduced memory and concentration.

44      Prior to the accident, the plaintiff was very fit and enjoyed boxing and bodybuilding and was part of a boxing club.  He did weight training for about ninety minutes, five to six days a week, and attended Beach House Gym at Fountain Gate to do boxing.  He did not have any equipment at home and was not involved in competition.[25]  He always wanted to be a boxer.[26]

[25]T95

[26]T60

45      After the accident, the plaintiff put his gym membership on hold.  After about two years, he tried to go back to the gym; however, he found it difficult to lift weights, as it aggravated his neck and back pain.  He found it difficult to build muscle due to his injuries, and now avoided going to the gym altogether, which upset him, as he is not as fit or active as he used to be.

46      The plaintiff’s left shoulder gives him a problem with boxing and going to the gym.  Balance issues also affect his boxing.[27]  He agreed it was a combination of all his physical problems and his general attitude that impacted on his ability to return to the gym.[28]  He then said his back and neck are the main reasons he has not returned to boxing.[29]

[27]T59

[28]T58

[29]T70

47      Before the accident, the plaintiff ran or walked most days, and was able to run for at least 45 minutes to 90 minutes.  Since the accident, he had avoided running long distance due to the pain in his legs, especially the left ankle.  Even after running a short distance, his back pain was aggravated, and he could feel pain in his legs increasing.  He could run for about 10 to 15 minutes before needing to take a break.

48      The plaintiff was much slower than he used to be, and he found it difficult to walk for long periods.  He became tired very easily and needed to take regular breaks from standing or walking due to his back pain.

49      Bending aggravated the plaintiff’s back pain.  He found it difficult to squat and kneel, and he had difficulty lifting heavy items due to his neck pain.

50      Since the accident, the plaintiff had found it difficult to sleep.  His neck and back pain prevented him from sleeping comfortably.  He also stayed up sometimes and worried about his injuries and his future.

51      Since the accident, the plaintiff was a lot slower at doing simple things such as reading.  He usually had to re-read the same things over and over again.  Since the accident, he had become very forgetful and his memory was not what it used to be.  He now needed reminders in his phone or on a calendar of important events and appointments, and he was constantly reminded by his parents and fiancée of events and things he had to do. 

52      The plaintiff had been depressed since the accident.  He was frustrated by his limitations and wished the accident had never happened.  He sometimes had flashbacks of people screaming in the car just prior to the impact.

53      The plaintiff’s relationship with his family and friends was strained because of his low moods and sudden mood swings.  His fiancée told him he had changed since the accident, and he now became frustrated quickly and was no longer patient.

54      The plaintiff was hesitant to get into a car with anyone.  He did not like being a passenger and he did not trust drivers, not even his sister.

55      The plaintiff was embarrassed by his scars, especially the one at the back of his head and above his right eye, which was tender at times.  When he went to the hairdresser, he always warned the hairdresser about the scar on the back of his head.  People constantly asked him how he got that scar.  These questions annoyed him because he had to talk about the accident of which the scars were a constant reminder.

56      In his recent affidavit sworn in March 2016, the plaintiff deposed his injuries had not improved.  He is now married, but remains living with his parents.

57      The plaintiff is under the care of Dr Maryam Shirzadi Kashani Nejad at Scott Street Medical Centre in Melton. 

58      The plaintiff deposed he was seeing a psychologist last year, but he found the process stressful, as he was required to re-live and talk about the accident and its consequences, and that tended to make him more anxious.  However, in re-examination, the plaintiff agreed he has not seen a psychologist in the last three years.[30]

[30]T54; T52 – the female psychologist in Dandenong

59      The plaintiff deposed that he is prepared to try counselling and/or psychiatric treatment in the future.

60      The plaintiff agreed he was referred to a psychiatrist in Sunshine earlier this year.  There was only a male doctor at the practice and he chose not to see him as he wished to see a woman.  He did not want to have treatment as he did not want to bring back memories of the accident – he was “trying to push forward”.[31]

[31]T50

61      The plaintiff discusses his psychiatric issues with his wife.[32] He does not want to remember the accident and chooses not to talk to anybody else.[33]  Each time someone asks him about the accident, “it takes him back”.[34]

[32]T52

[33]T53

[34]T70

62      The plaintiff’s general practitioner has referred him for chiropractic treatment regarding his left shoulder to try and get some functional use back.

63      The plaintiff first experienced left shoulder pain about two years ago, which he relates to the accident.[35] Current chiropractic treatment, his only treatment at present, is funded by Medicare.  Whilst he did not mention it in his affidavit, this treatment is also for his back.[36] 

[35]T39

[36]T40

64      The plaintiff had an ultrasound on his left shoulder, organised by his general practitioner.  He did not undergo an MRI scan because he felt claustrophobic. 

65      The most devastating injuries from the accident are to the plaintiff’s head and lower back.  His neck is painful at times and this pain can lead down the left side of his neck, over his shoulder blade.  His left shoulder is sore and stiff, and his doctor believes it is frozen.

66      Presently, the plaintiff takes Endep, two a day, and Tramadol, one a day, for pain and sleep, Viagra in relation to erectile dysfunction as a result of his injury, and four to six Nurofen a day to deal with low back pain.

67      The plaintiff could not recall having been prescribed Tramadol only once by the Melton Clinic.  In addition to two prescriptions for Panadeine Forte, he also takes his mother’s tablets as she always has them and there is no need for him to get a prescription.[37]

[37]T55

68      The plaintiff is trying to get off medication.  He denied it was an exaggeration to say he presently takes two Endep, one Tramadol and two Panadeine Forte per day.[38]  He also takes four Nurofen daily for his back.[39]  He takes Panadeine for his back.  He then said he takes Nurofen for his back, shoulder and neck and occasionally for headaches.  [40]

[38]T56

[39]T57

[40]T58

69      The plaintiff has now been married for a year and had to seek assistance in relation to his intimate relationship.  He was having problems and, accordingly, was prescribed Viagra.  That had been an ongoing problem for him.

70      The plaintiff continues to be very fragile mentally.  If he sees a motor vehicle accident or a motor vehicle accident reported on the news, it acts as a trigger and he becomes extremely anxious.  He drives, but totally avoids being driven in a car as a passenger.

71      The head injury has had a very bad effect on the plaintiff, affecting his short-term memory, concentration, dizzy spells and mood.  He is very conscious of the scarring and his poor memory affects day-to-day functioning.

72      The plaintiff goes shopping, but it is usually always with another family member and he has to take a list, even for only a couple of items.

73      The plaintiff’s wife works full time and he spends his time at home, mainly with his parents.  He goes out during the day and visits his brother-in-law, who has a few shops.  He goes out of the house to have a coffee, and he spends time with his parents.

74      The plaintiff has to live with his back injury and try and do his best.  If he and his wife go shopping, he has to rest perhaps every fifteen minutes or so.  Some days are better and he tries to take the weight off his legs.  Prolonged standing is a problem.

75      The plaintiff has constant lower back pain that continues to be debilitating.  While the level thereof varies, sometimes he tries to walk for about 45 minutes, partly to keep him occupied, but also to keep him moving.  His lower back pain prevents him going further.  He continues to have intermittent pain that can run into both legs and his feet.  He agreed at times he may have a full range of lumbar movement.[41]

[41]T43 – examination by Mr Powell on 18 March 2016

76      Neck pain is present when the plaintiff tries to move his neck towards its end range.  It is not a constant pain.  He gets it from day to day, especially if driving and trying to twist his head to the end of the range.  At times, he may have a full range of neck movement.[42]  At the moment, he has more problems with his back.  At other times, it is his neck.[43]

[42]T42 – examination by Dr Ngo on 9 March 2010 and Mr Powell on 18 March 2016

[43]T43

77      The plaintiff no longer attends the gym.  The only thing that relaxes him during the day is go for a swim.  This does not aggravate his lower back pain too much.

78      In fact, there are days when the plaintiff needs help to get out of bed due to his lower back and frequently his wife, if not his mother, is able to help him.  That is at least part of the reason why he and his wife are living with his parents.

79      The plaintiff tries to get some rest during each day to take pressure off his back by lying down, and he also avoids heavier aspects of activities.

80      The plaintiff’s sleep continues to be affected.  Lower back pain can wake him every second night and, alternatively, he can have headache pains of an evening.  He tries to go to sleep late most nights to get himself as tired as he can, thus going to bed between midnight and 12.30am.

81      The plaintiff agreed that his sleep is affected by his shoulder, back, head and neck pain.  He has to get up at night and watch television to try to get back to sleep.  Sometimes he gets up as late as noon.  He would not be able to guarantee an employer he could turn up at a regular time every day.  He would have difficulty focussing on work if he had had little sleep the night before.[44]

[44]T66

82      It has not been very pleasant for the plaintiff to still be at home without working.  He has attempted, a couple of times recently, to go to work.

83      In 2015, the plaintiff went to work at one of his brother-in-law’s café s but, in the end, despite his determination, he only lasted a few weeks.

84      The plaintiff knows his brother-in-law was trying to help, and it would be good for him and his self-esteem to work.  The plaintiff was just doing gentle duties, but he frequently found talking to customers difficult.  He had trouble concentrating on what was happening.  Also, physically, he had to have a break.  The café was fast paced and the plaintiff felt he was just there rather than getting much done, and he could not keep going.

85      The plaintiff had also tried working at a bottle shop run by a family friend, but that involved too much lifting in the end.  They were accommodating and had a chair for him to sit on so he did not have to stand all day, but he knew he probably could not do the job, but he wanted to give it a go.  He lasted there for about four days.

86      The plaintiff’s father, his brother in law and friend are available to give evidence if asked.[45]

[45]T62

87      Presently, the plaintiff is registered for Newstart and he is in the process of applying for a Disability Support Pension.  Through Centrelink, he was sent to a knitting business, but there was no way he could work properly in that job.  There was also an arrangement for him to attend for a warehouse job, which he was willing to try, but when he advised them of his back injury, he was told he should just go home.

88      The plaintiff disagreed that nothing had really changed since the accident, in that before and after, he had only worked for family and was never paid.  At the time of the accident, he was nineteen.  He is now in his late 20s with a baby.[46]

[46]T63

89      The plaintiff hoped to be able to set up a business in retail once the case is over but he did not feel he would be able to even if he had the finances.  He denied the VRC recommended he attend for a pre-vocational assessment in 2010.  He could not recall being asked what jobs or training he could do.[47]

[47]T64

90      The plaintiff deposed that at the time of the accident, he was studying a business course.  Unfortunately, he does not feel there is any study he could properly do.  His inability to concentrate and focus on what he is reading, apply patience, combined with poor memory and his very limited ability for customer service would make studying not an option for him.

91      When the plaintiff has tried to go back to work, his memory has stopped him working – forgetting orders so he just walked out.  He had difficulty talking to customers, partly due to concentration issues and also because he thought they were looking at his scars.[48]  His neck, back and shoulder also impact on his ability to lift things at work.[49]

[48]T60

[49]T60

92      This year, the plaintiff has worked about twenty times in the family coffee shop in St Kilda Road, having earlier said he worked a couple of times.  The longest he lasted was for a couple of hours and he was too embarrassed to go back.[50] He has also helped out in the bottle shop in Melton but there was too much heavy lifting and he could not cope with working on the register.[51]

[50]T66

[51]T68

93      The plaintiff’s wife pushes him to get back to work.[52]

[52]T68

94      The plaintiff’s depression is something that is a real problem on a daily basis.  He spends too much time alone at home and elsewhere, which is not a good thing, when all his friends seem to have gone on with their lives.  He just wants to have a normal job and provide for his wife.  He would rather do that than have his parents look after him.

95      The plaintiff’s depressed mood also affects his appetite.  He used to be a healthy eater and eat three to four times a day, now many days he will eat once, possibly twice.

96      The plaintiff did not overplay their importance, but his scars had continued to be a source of concern for him, and he could not help it.  They reminded him of the accident.  He could live with them and, of course, it could have been worse, but he was still conscious of them.  The scarring on his left ankle affects what shoes he can comfortably wear, and the scar on the back of his head is painful and uncomfortable at times.

The Plaintiff’s lay evidence

97      The plaintiff’s wife, Fatima, swore an affidavit on 29 March 2016.  They married in February 2015 and now have a small baby.  Fatima has known the plaintiff for seven years, meeting him through their respective families. 

98      Before the accident, the plaintiff was always so happy and entertaining to be around.  He was confident and sure of himself and he received a lot of attention from his family as he was the only boy.

99      The plaintiff was into fitness and looking after himself and he used to play sport with friends.  She and the plaintiff had an active social life.  He used to box when they first met, training at least four times a week, as well as going to the gym.  He also talked about his love for old cars and he enjoyed reading, and they discussed the books they were reading.

100     At the time of the accident, she and the plaintiff were very close and talked on the phone when they were not seeing each other.  She recalled that on the night of the accident he called her before he got into the car to say he was going to go home as he had an assignment he needed to finish.  He called her again in the car just before the accident, when she could remember him speaking to other people in the car.

101     When Fatima went to the hospital, the plaintiff was out of his coma.  She was so young, and it was very distressing seeing the man she was falling in love with bandaged from head to toe.  It seemed to her, initially, the plaintiff had lots of treatment, but then it seemed to trail off when his complaints did not change.

102     The plaintiff had changed since the accident and was no longer happy or full of life most of the time.  Their relationship has also changed and he takes Viagra so they can be intimate.

103     On their wedding day, the plaintiff had difficulty getting into poses for the camera because of his physical restrictions.

104     Fatima is now careful with the plaintiff.  She feels for what he has lost because of what he has been through, and continues to go through.  Before the accident, he had plans and dreams, but it seems they are still at the same point as before the accident.  Initially, he told her it would be better if he was not around. 

105     Fatima hoped the baby who was due in July would bring more sparkle back to the plaintiff, but she was worried about how the plaintiff would bond with him.

106     For the last two years she has noticed the plaintiff’s memory is progressively getting worse.  He gets distracted easily and is forgetful.  He struggles with paperwork now, whereas before the accident, he was studying and managed fine.  She now has to explain things to him and help him fill out forms.

107     Fatima has attended some medical appointments with the plaintiff and noticed that he does not answer questions.  She has noticed that doctors have had to repeat questions he did not answer and he forgot things during conversation.

108     The plaintiff currently takes Endep, Panadeine Forte and Nurofen.  He also takes Viagra and uses Voltaren Gel almost nightly on his neck and back.

109     When they met, the plaintiff was studying a course in business management.  While he was taking the course, he was helping out his parents in the family business.  She did not believe he got paid doing that work, he was just helping out the family in their fish and chip shop.

110     Before the accident the plaintiff’s family was keen for him to succeed and they were trying to guide him.  The plaintiff would talk about opening his own business and how his father was planning to help him.  The plaintiff was full of ideas and plans for the future before the accident.

111     The plaintiff is trying to get back to work by helping out in his parents’ business and, also, with his brother-in-law’s café.  However, he struggled to stand at the counter helping out his dad, and struggled helping with refilling the stock.  When he helped his brother-in-law at the café, the plaintiff came home quite depressed as he felt he could not do anything, and was more of a pain than a help.  He also told her he did not like the interaction with the customers or the noise of the café.

112     Fatima would never have thought that seven years after the accident the plaintiff would still be in pain and struggling to cope with daily life.  They thought he would be working, and successful on their way to being financially secure, and maybe even have a house of their own to raise their family.

Treatment

113     The plaintiff was an inpatient at Southern Health from 23 October to 28 October 2009.  The hospital report set out the plaintiff had a cervical spine injury from a motor vehicle accident.  There was ligamentous damage demonstrated on MRI scan.  There was an abrasion of the right forehead.  A range of investigations were carried out.

114     The triage notes from the hospital set out that there was a high-speed collision at least 60 kilometres per hour.  The plaintiff was brought to Emergency by friends from another car.  He had no recollection of the event.  He was allegedly found outside of the car.  He was sitting in the rear seat, seat belted. 

115     It was noted the plaintiff was anxious answering questions.  His Glasgow Coma Scale score was 15 out of 15, but he had no recollection of the accident.  There were abrasions across his feet, right elbow and knuckle.  There was lower thoracic spine tenderness and abrasions over the lower back, and tenderness at the L2 sacrum.  It was noted the plaintiff was persistently tachycardic.  He was given a cervical collar.

116     Dr Man Ngo, general practitioner, first saw the plaintiff on 2 November 2009, ten days after the accident. 

117     Dr Ngo diagnosed multiple soft tissue injuries to the scalp, forehead, an ACL tear of the atlantoaxial ligament and contusion of cervical vertebral bodies.  Dr Ngo expected the plaintiff to make a full recovery by September 2010. 

118     In his report of August 2013, Dr David Blumberg, general practitioner, diagnosed Post-Traumatic Stress Disorder, with Anxiety and Depression and flashbacks following the accident.  He noted the plaintiff was markedly affected by the traumatic memories of the accident.

119     Dr Blumberg considered the plaintiff had a resolving injury to the upper cervical spine.  He had healed lacerations on his forehead and scalp and had post-concussion syndrome from bruising in his brain. 

120     Dr Blumberg thought the plaintiff had made slow progress since the accident.  He had healed quite well as far as the neck goes.  His mood, anxiety and stress were affecting him, still preventing him from working, and Dr Blumberg could not predict the plaintiff’s work ability in the future.

121     Dr Vaidya Bala from the Victorian Rehabilitation Centre initially saw the plaintiff on 8 November 2009, at which time he organised an outpatient rehabilitation program.

122     Dr Bala thought that following the program, overall, the plaintiff had made significant progress from a medical, physical, functional and cognitive domain.  At the time of his discharge as an outpatient, he was independent with his ambulation, self-care and domestic and community activities of daily living.  He had recommenced driving, and was exploring returning to his pre-accident work.

123     The plaintiff had also developed symptoms of depression and Post-Traumatic Stress Disorder, for which he had elected to participate in clinical psychology sessions.  He made significant progress psychologically, and was discharged.  Dr Bala thought, overall, the plaintiff carried a good prognosis for his injuries.

124     Dr Bala noted, with regards to a return to work, the plaintiff was referred to a pre-vocational assessment at the Victorian Rehabilitation Centre.  He did not attend his appointments with the vocational co-ordinator of the Centre, therefore, it was indicated by the defendant for him to be referred to a vocational rehabilitation provider in the community to return to his pre-accident employment.

125     Dr Bala thought the plaintiff had the capacity to return to pre-accident employment; however, this needed to be supervised and assisted by a vocational rehabilitation co-ordinator organised through the defendant.

126     Dr Ebrahim Heydari, general practitioner, first saw the plaintiff in February 2016.  The history was the plaintiff had been suffering from Severe Anxiety and Depression following the accident, and he also had back and shoulder pain.

127     Dr Heydari diagnosed Snapping Scapula Syndrome and PTSD.

128     Dr Heydari thought the plaintiff required medication dose adjustment and further treatment by way of physiotherapy and a chiropractor.

129     Dr Heydari thought the plaintiff’s prognosis was unpredictable.  He could not work, and his capacity to work in the future was unpredictable.

130     Dr Heydari referred the plaintiff to Dr Haddad, chiropractor, by letter dated 16 November 2015, noting left shoulder pain, with a provisional diagnosis of Scapulothoracic Syndrome for ongoing management.  He advised the plaintiff had had left shoulder pain for five years following the accident. 

131     Dr Heydari also advised the examination had found no abnormality, except for tenderness over the scapular boarder with clicking.

132     In his referral letter to Harvester Private Clinic of 22 February 2016, Dr Heydari noted the plaintiff was referred with Post-Traumatic Stress Disorder for ongoing management.  He had been suffering from severe depression and anxiety following a car accident in 2009.  He was also in a coma for a few weeks.

Investigations

133     There was an x-ray of the lumbar spine on 23 October 2009.  It was reported vertebral body alignment, vertebral body heights and disc spaces were all within normal limits.

134     There was a CT scan of the cervical spine in October 2009.  It was reported there was no acute intracranial abnormality and no fracture or subluxation of the cervical spine demonstrated.

135     Following an MRI scan of the spine in December 2009.  There was no evidence of malalignment and soft tissues of the bones, including the discs, and visible ligaments all appeared within the normal range. 

136     There was an MRI scan of the spine in October 2009, it was reported there was mild subluxation of atlantoaxial joints, a partial tear of the atlantoaxial cruciate ligament, osseous contusions involving C2-C5 vertebral bodies, associated with partial tear of interspinous ligaments at C3-4.  There was no traumatic pathology involving the lower thoracic spine, lumbar spine and spinal cord or intracranial posterior fossa.

137     Following an MRI scan of the spine in September 2014, it was reported that apart from mild L3-4 and L4-5 broad disc bulging, there was no structural abnormality.

The Plaintiff’s medico-legal examiners

Orthopaedic

138     Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in early 2016.

139     Mr O’Brien considered, from the clinical findings, it now appeared the plaintiff presented with non-specific neck, low back and left scapular pain.  He considered signs in fact do not demonstrate specific pathology underlying pain generation, the history suggesting that the underlying problem related to a chronic soft tissue injury.

140     Mr O’Brien considered there were in fact some signs which suggested the overall clinical condition was complex with psychological issues having an effect on the clinical course of the plaintiff’s pain.  However, it does suggest the plaintiff is now presenting with a Chronic Pain Syndrome.

141     Mr O’Brien considered the clinical condition was consistent with the stated cause and it would appear that that condition was now stable.  In his view, the signs would suggest a poor prognosis, as it would appear that chronic pain would continue.

142     Mr O’Brien noted the plaintiff reported moderate disability associated with his ongoing chronic pain.  The physical signs, however, now would suggest that the plaintiff is now not physically totally incapacitated.  Thus, from a physical perspective, Mr O’Brien would now suggest he would be capable of undertaking suitable employment.

143     In Mr O’Brien’s view, however, it appeared that the clinical problem was indeed complex and appeared to influence the plaintiff’s capability.  Overall, it would appear the plaintiff now is moderately limited in his general, domestic, social and recreational activities and this situation is likely to be ongoing.

144     The plaintiff was examined by Dr John Redhead, ear, nose and throat (“ENT”) surgeon in September 2010.  This report was relied upon in terms of the plaintiff’s complaint of back pain in September 2010. 

145     Dr Redhead noted the plaintiff had suffered severe problems with balance since the accident, which occurred at least once a day.

146     Dr Redhead noted the plaintiff had previously worked as a store manager and had been unable to return to work due to his neck injuries and complaints of problems with his back.  He considered the plaintiff’s balance was a significant factor, which may delay his return to work and he would require an opinion from a neurologist and a course of vestibular rehabilitation. 

Psychiatric

147     Dr Serry, psychiatrist, first examined the plaintiff in February 2011.

148     Dr Serry noted the plaintiff was in business management at TAFE at the time of the accident and had not returned to study, or undertaken any work other than helping out in his father’s milk bar since.

149     In terms of ongoing physical symptoms, the plaintiff reported persistent neck and low back pain, and neck movement was slightly restricted.

150     Dr Serry thought, on mental state examination, the plaintiff was anxious, apprehensive and frustrated by the impact of his injury and there were residual post-traumatic anxiety features.  Thought content revealed an ongoing preoccupation with the accident and its sequelae.  Cognitive assessment revealed subjective complaints and some impairment to attention and concentration.  Insight was retained. 

151     Dr Serry thought the psychiatric illness resulting from the accident would best be conceptualised as a partially resolved Post-Traumatic Stress Disorder and a largely resolved Chronic Adjustment Disorder with Depression.  He thought it also appeared as though the plaintiff sustained a closed head injury with an associated impairment and in complex integrated cerebral function.

152     Dr Serry noted the plaintiff’s work, study and leisure activities had been affected, and he had not returned to work in anything like his premorbid level of functioning.

153     On re-examination in January 2016, Dr Serry noted the plaintiff remained quite physically symptomatic, particularly in terms of his left shoulder and low back pain, and he also had some residual cognitive symptomatology although it was not entirely clear as to whether this related to a mild head injury sustained in the accident.

154     Diagnostically, Dr Serry thought the plaintiff would now be considered to have an incompletely resolved Chronic Adjustment Disorder with Anxious and Depressed Mood, and with features of traumatisation.  He thought there may also have been very mild residual features of a neurocognitive disorder due to a mild traumatic brain injury.

155     Dr Serry thought the plaintiff’s prognosis would be considered somewhat guarded given the persistence of symptomatology over a number of years post-accident.  He reiterated his comments about the need for the plaintiff to be referred to a treating psychiatrist for appropriate and ongoing management of his residual symptoms of both Anxiety and Depression.

Neurology

156     The plaintiff was first examined by John Waterston, neurologist, in March 2011.  The plaintiff told him he thought he was in hospital for two weeks after the accident.  Since then, he had had a number of problems, including persistent neck pain and stiffness, and he also had some mild low back pain but that was not a major problem.

157     The plaintiff also described some dizziness after the accident, which he said was like a springing sensation.

158     On examination, the plaintiff’s performance on a test of mental status was abnormal.  He had some visuospatial problems, as well as difficulties with verbal fluency, language and delayed recall.  Dr Waterston could not fault the plaintiff’s balance.  Neurological examination was normal.

159     Dr Waterston thought the plaintiff suffered a significant closed head injury, which appears to have been at least of moderate severity, and that he had been left with some cognitive disturbance which was probably related to an organic brain injury.

160     On re-examination in May 2012, the plaintiff reported he had some low back pain, but that had been improving and did not seem then to be a major problem.  He complained of some occasional dizziness and his short-term memory was still an issue.

161     The results of the test of mental status were quite similar to the results on the earlier examination, and walking and standing balance were both normal.  Movements in the thoracolumbar spine were normal, but cervical movements were limited in all directions by pain.

162     Dr Waterston thought the plaintiff appeared to have suffered a significant closed head injury and had some ongoing cognitive disturbance which was probably related to an underlying brain injury.  He had ongoing problems with mood disturbance.  He continued to experience pain and limited movement in his cervical spine as a result of the injury.  Dr Waterston thought the plaintiff’s positional vertigo appeared to have improved and he could find no evidence of vestibular abnormality.

163     Dr Waterston was then a little surprised the plaintiff had not been able to return to any gainful employment.  It would appear that physical activity and prolonged standing would limit his ability to return to work.  There may be a possibility he could be trained to perform work of a more sedentary nature.

164     The plaintiff told Dr Waterston he was keen to return to study.  However, his cognitive impairment may limit his ability to undertake further study.

165     Dr Waterston noted he would be a little pessimistic about the plaintiff’s ability to return to work in view of the combination of cognitive impairment, chronic musculoskeletal pain and psychological dysfunction.

166     On further examination in March 2016, the plaintiff told Dr Waterston his pain had been worse over the last few years.  He had constant low back pain and also complained of some ongoing pain in the cervical spine.  He had pain in the left shoulder, which became worse about two years after the accident.  He reported that his balance was not 100 per cent.

167     Dr Waterston noted, on examination, the plaintiff seemed to have quite a flat affect.  The results on mental status testing showed a significant improvement on the previous results, but the plaintiff had problems with delayed recall and sentence repetition.

168     On examination, the plaintiff was tender to palpation over the lower cervical spine bilaterally and range of movement was reduced.  He was also tender over the lower lumbar spine and there was an impaired range of movement.  Standing and walking balance was normal, as was the neurological examination.

169     On the basis of that assessment, Dr Waterston thought there had been some improvement in the plaintiff’s cognitive function since the last assessment.  He noted the plaintiff had also developed a significant psychological impairment, noting Dr Serry’s report of February 2011.

170     Dr Waterston noted Dr Vowels’ and Dr Burton’s test results.

171     On the basis of his assessment, Dr Waterston thought there was a significant component of psychological dysfunction underlying the plaintiff’s cognitive impairment, although there also appeared to be component due to the head injury.

172     Dr Waterston noted the plaintiff had chronic pain related to his cervical and lumbar spine injuries.  He had not documented the lumbar spine injury in previous reports as the plaintiff was not complaining of lumbar spine pain at that time, though it is clear he was complaining of it after the accident.  It would also appear that this pain had only become a major issue more recently.

173     Dr Waterston noted positional vertigo developed after the accident had since improved significantly and he could not elicit any objective vestibular abnormality.  He noted the plaintiff had problems with erectile impotence and there was no evidence of any direct injury which may be responsible for it, so he presumed that had a psychological basis.

174     Dr Waterston noted the plaintiff had developed headaches which are often accompanied by a spontaneous episode of vertigo.  He suspected the headaches were migrainous in nature and the vertigo may have also have a migrainous basis.  As the plaintiff did not suffer from migraine previously, Dr Waterston presumed this was a consequence of the head injury.

175     It was now almost six years since the accident and Dr Waterston thought the plaintiff was entrenched in a cycle of chronic pain and psychological dysfunction, noting his attempts at a return to work had been unsuccessful.

176     Dr Waterston thought the prospect of further improvement therefore seemed limited, and he would have grave doubts that the plaintiff would ever be able to return to any gainful employment.  He thought he would also be prone to the effects of degenerative change complicating his spinal and musculoskeletal injuries and he would require ongoing medical treatment for those issues.

Neuropsychological testing

177     Dr Burton, neuropsychologist, first saw the plaintiff in May 2011 and carried out neuropsychological testing.

178     Overall, there appeared to be a general blunting or flattening of the plaintiff’s abilities, which Dr Burton thought may be associated, to a large extent, with his significantly lowered mood.  He was reporting symptoms suggestive of severe anxiety and depression on self-report questionnaires.  She thought his mood would have contributed to, or exacerbated, attention and concentration difficulties, and a slowness in process.  Pain and discomfort would also have contributed to both the plaintiff’s lower mood, and to the reduction in his efficiency and performance.

179     While the plaintiff may have sustained a mild head injury, which has impacted on his cognitive functioning, Dr Burton felt that his current mood has had a major deleterious effect on his cognitive functioning overall.  Consequently, she recommended that following appropriate psychological intervention, he be re-assessed in twelve months in order to better delineate any residual cognitive deficits that may be attributed to the head injury sustained.

180     Dr Burton also thought it would be helpful to have access to any pre-accident school reports which might give a better indication of the plaintiff’s level of premorbid language functioning.

181     Dr Burton recommended either the plaintiff be referred to a psychologist with experience in pain management, who could address issues associated with anxiety, depression and adjustment, and/or that he be considered for participation in a multidisciplinary pain management program.

182     On re-examination in April 2012, Dr Burton does not seem to have been aware of her previous examination and testing and made no comment thereto. 

183     At that stage, a major factor thought to be impacting on the quality and efficiency of the plaintiff’s performance was reported very high levels of Depression.  Dr Burton noted the plaintiff endorsed symptoms suggestive of Severe Depression on the Beck Depression Inventory and was reporting symptoms suggestive of Moderate Anxiety. 

184     In Dr Burton’s view, the plaintiff, a young man who had suffered significant physical injuries which may have impacted quite severely on his everyday life, had developed in reaction to his physical limitations and ongoing pain, an Adjustment Disorder with Anxiety and Depression.

185     Although the pattern of the plaintiff’s performance was not particularly in keeping with him having sustained a mild head injury, Dr Burton thought he was exhibiting some cognitive difficulties which appeared to be related to, or exacerbated by, his psychiatric condition.

186     Dr Burton was then reluctant to give an assessment of permanent impairment given the plaintiff’s very high levels of Depression and Anxiety and preferred to review in about twelve to eighteen months, after psychological intervention, in order to better delineate any residual deficits which might be due to the mild head injury sustained.  She, again, suggested the plaintiff’s school reports would be helpful to establish his level of premorbid functioning. 

187     Following her final assessment in April 2013, Dr Burton noted the plaintiff was previously estimated to have been of borderline low-average intelligence premorbidly.  Currently, he was functioning intellectually within the borderline range, an improvement on 2012, when his functioning was within the mildly intellectually disabled borderline range.

188     In summary, current neuropsychological test findings suggested improved functioning since the last assessment, now closer to the plaintiff’s estimated premorbid level.

189     Dr Burton noted areas of dysfunction typically seen after head injury were now not present.  The plaintiff demonstrated no difficulties in cognitive flexibility, processing speed and memory function.  In her view, some of the difficulties may be longstanding and may be related to, or exacerbated by, psychiatric conditions. 

190     Dr Lindsay Vowels, clinical neuropsychologist, carried out a neuropsychological assessment in February 2016.

191     Dr Vowels noted that pre accident, the plaintiff was coping with a dynamic small business which requires excellent sequencing and planning skills to survive.

192     From the information gathered, and the test results, Dr Vowels thought it appeared the plaintiff was displaying moderate and significant symptoms of Acquired Brain Impairment, from which he did not appear to have recovered from when Dr Burton reported. 

193     As the plaintiff had no other risk factors pre-accident to account for any cognitive difficulties, and was fully employed in a reasonably challenging position pre-accident, Dr Vowels thought the cognitive abnormalities identified were most likely to have been the outcome of the traumatic head injury in the accident.

194     Dr Vowels considered the plaintiff’s mood was moderately to severely depressed and moderately anxious, and with some ongoing pre-occupation with the pain and discomfort from his physical injuries, and frustration and distress at what it meant in terms of being able to undertake training for a new career he had hoped to achieve.  The plaintiff’s comment he had lost seven years of life seemed, to her, to be a valid recognition of the overall impact of the accident on his life.

Vocational evidence

195     Diane Forster of Flexi Personnel carried out a vocational assessment in April 2016.

196     The plaintiff told Ms Forster, as a consequence of his accident injuries, he suffered with constant pain in the lower back and left shoulder, along with occasional weakness in both legs.  He also stated he experienced anxiety, stress, depression and mood swings, resulting in feelings of aggression.

197     As a recruiter and from interviewing the plaintiff and reading medical reports, she believed his back, left shoulder, closed head and cervical spine injuries, on an individual basis alone, would hamper his employment prospects, particularly when coupled with his psychological impairment.

198     Ms Forster thought, based on the plaintiff’s medical reports, he suffers from physical restrictions which prevent him entering the workforce in an unrestricted manual capacity.  His impairments were stable and likely to be ongoing.

The Defendant’s medico-legal examiners

Orthopaedic

199     Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff in January 2015 for the purposes of an AMA assessment.

200     The plaintiff told Mr Fogarty that at the time of the accident, he was studying Business Management at Melton TAFE, and had to stop the course after the accident.

201     Mr Fogarty thought the plaintiff had suffered a head injury with loss of consciousness.  He had suffered a soft tissue injury of the neck with atlanto‑axial mild subluxation with partial tear of the atlanto-axial cruciate ligament.  There were also contusions at the level of C2-C5 vertebral bodies and partial tear of the interspinous ligament at C3-4.  There was also a possible soft tissue injury to the lower back, as well as other lacerations. 

202     Mr Fogarty noted the plaintiff’s mobility may have been somewhat affected by injuries sustained in the accident, but he thought he had largely recovered his physical mobility.  His leisure activities had been reduced, although he had returned to gym activities.  Mr Fogarty considered there may well have been a psychological impact of injury which would have to be separately assessed.

203     Mr Fogarty thought the plaintiff would be fit to undertake normal duties so far as his physical injuries were concerned.  Although there may be a partial incapacity for neuropsychiatric reasons, he did not believe there was an incapacity for work related to physical injury which was likely to be permanent.

204     Mr Gerard Powell, consultant orthopaedic surgeon, examined the plaintiff in March 2016.

205     The plaintiff then complained of left shoulder pain, ongoing neck pain and lower back pain.  He also advised of ongoing psychological symptoms and that he had poor balance.

206     On examination of the neck, there was normal cervical lordosis.  There was some tenderness over the lower cervical elements, but no muscle spasm, and range of motion in the neck was full.  There was no muscle wasting or tenderness of the left shoulder.

207     There was tenderness over the lumbar region, and the plaintiff was able to touch his toes and exhibited a normal range of lumbar spine motion.  Neurological examination of the upper limbs was entirely unremarkable, as was examination of the lower limbs.

208     The plaintiff told Mr Powell that he planned to continue doing certificates at TAFE when the accident happened.

209     Mr Powell thought the plaintiff had an ongoing Pain Disorder related to his neck and lower back in the absence of any demonstrable mechanical injury to his spine.  There was no doubt the plaintiff sustained a significant soft tissue trauma to the cervical spine, but these went on to heal uneventfully.  He thought the plaintiff had ongoing psychological and behavioural issues related to his head injury, and he had a Chronic Pain Disorder with neck and back pain.

210     Mr Powell thought the injuries suffered in the accident that were pertinent to the orthopaedic field had all resolved.  There was no evidence of any ongoing injury.  There was no injury to the left shoulder.  There was no physical impairment, but the disability was related to a Chronic Pain Disorder and not a mechanical injury.

211     Mr Powell thought the prognosis was for ongoing lower back and neck pain.  It was possible those symptoms may improve with further treatment of the plaintiff’s Depression and by resolution of any outstanding legal matters.

Psychiatric

212     Professor Doherty, psychiatrist, examined the plaintiff in March 2016.  The plaintiff told him that following the accident, he was in Dandenong Hospital for a couple of weeks and he was put in a coma.  He also told Professor Doherty he was a student undertaking a course in business management at TAFE at the time of the accident.

213     The plaintiff told Professor Doherty that six months after the accident, his general practitioner prescribed medication, including Viagra.  He was referred to a clinical psychologist, Dr Brian Strubel, in June 2012.

214     Professor Doherty noted the plaintiff was physically assaulted in an unrelated incident in March 2010, sustaining significant facial injuries.

215     Professor Doherty thought it would appear the plaintiff has had a psychological reaction to the accident and his injury.  There had been no consistent prolonged psychological or psychiatric treatment and the dosage of anti-depressant medication would not actively treat a depressive disorder.

216     Putting together the history, the findings on mental state examination and review of documentation, it would appear to Professor Doherty that at most, the plaintiff has suffered an Adjustment Disorder with mild symptoms of Anxiety and Depression and mild features of traumatisation.  He did not think that Post-Traumatic Stress Disorder was present, nor a pain-related psychiatric condition.

217     Professor Doherty thought there were few significant psychological or psychiatric symptoms present.  A significant component of the plaintiff’s concern about his facial appearance related to the assault.

218     Professor Doherty thought the psychiatric condition as a result of the accident did not interfere in any significant way with the plaintiff’s ability to work.  When asked his views about his capacity for work, the plaintiff said the main reasons were his pain, adding he was socially anxious about his scars.

219     A supplementary report was requested from Professor Doherty following receipt of Dr Gibbs’ neuropsychological report.

220     Professor Doherty noted he had diagnosed an Adjustment Disorder following the accident.  He continued to hold that view.  The title of the psychiatric condition would be stated as an Adjustment Disorder with features of somatisation.  In his view, the new material indicated there had been significant pre-existing psychological vulnerabilities and some actual symptoms of health concerns before the accident.

Neurologist/neuropsychologist

221     Professor Stark first saw the plaintiff in August 2014. 

222     The plaintiff told him his last memory before blacking out was the car hitting the traffic light and that he was then in hospital for two weeks.

223     The plaintiff told Professor Stark that at the time of the accident, he was self-employed, helping his father in his fish and chip shop business.

224     On examination, the plaintiff’s main problem was lower back pain, and his neck was now pretty good, with no associated pain.  He had had dizzy spells on and off since the accident.  He was then taking Panamax, having ceased antidepressants.

225     There was some restriction of lower back movements, and there was some associated palpable spasm of the paraspinal muscles, and some tenderness of the lumbar paraspinal muscles. 

226     Professor Stark thought, from the documentation, the plaintiff sustained a minor closed head injury, a brief period of post-traumatic amnesia, and a period of loss of consciousness.  In general, he thought one would not expect an injury of this type to result in major ongoing cognitive difficulties and he thought it likely that the memory problems that were reported were predominantly related to psychological factors rather than an organic brain injury, nevertheless, he accepted there may be a small organic component.

227     Professor Stark considered the major restrictions for the plaintiff for his ongoing employment and day-to-day activities related to his lower back symptoms.  There was no neurological component to those and there was no evidence of any radiculopathy or any other neurological issue. 

228     The plaintiff did, however, have some palpable spasm in the lower back and some restriction of movement and Professor Stark had no reason to doubt the accuracy of the plaintiff’s symptoms reported, thus he suspected the plaintiff did have ongoing symptoms from a soft tissue injury to his lower back.

229     Professor Stark thought the plaintiff would be fit to undertake similar duties to those performed before the accident, but would not be fit for heavy lifting or other heavy physical jobs.

230     Following re-examination in March 2016, Professor Stark reached similar conclusions.

231     On examination, neck movements were, perhaps, minimally restricted in all directions.  Thoracolumbar movements were moderately restricted in all directions and there was some palpable spasm in the lumbar paraspinal muscles. 

232     Professor Stark concluded that he did not think there was any objective change in the plaintiff’s condition since last seen.  The main ongoing symptom in relation to his back was pain and this, of course, was difficult to quantify.  He thought there may be some organic basis to it, despite the unremarkable imaging.  He thought the plaintiff’s cognitive difficulties may reflect, in part, a minor organic brain injury, but the majority of the problem was of psychological origin.

233     Those psychological factors were contributing to the plaintiff’s cognitive difficulties and may well be contributing to his lower back pain as well.

234     Professor Stark noted that whether the injuries interfered with the plaintiff’s ability to engage in employment depended, to some extent, upon the credibility of his history with regard to lower back pain.  In general, one would expect an injury of this type without overt structural change on imaging to improve with conservative treatment.  Thus, the failure to improve would be a little surprising, but does not exclude the possibility of an unidentified organic component.

Neuropsychological testing

235     Dr Andrew Gibbs, clinical neuropsychologist, examined the plaintiff in April 2016.

236     Dr Gibbs noted there was no report of acute behavioural disturbance or reduced Glasgow Coma Scale score in the days after the accident.

237     On current assessment, the plaintiff reported severe levels of depressive symptomatology and so it was likely that non-organic factors, such as mood, were likely currently impacting the test scores obtained.

238     Dr Gibbs thought the plaintiff’s pattern and level of psychometric test scores for cognition appeared out of keeping for a mild closed head injury when non-organic factors appear to be impacting.

239     Dr Gibbs noted the plaintiff self-reported severe levels of depressive symptoms, whereas it has not been until three months prior to that assessment that arrangement for him to attend a psychiatrist was made.  Psychiatric opinion was advised, including whether the plaintiff had a condition and the adequacy of any treatment at present.

240     Dr Gibbs thought it would appear the plaintiff would have some potential capacity for work given his improved mood state, where he does not appear to have been treated psychiatrically for this at present, albeit, prescribed Pristiq, 50 milligrams. 

241     Dr Gibbs advised psychiatric opinion, given the plaintiff, in 2010, was considered to have had a good rehabilitative prognosis and the capacity to resume previous activities.  The concern was whether the plaintiff had a condition and whether this had been adequately treated.

242     Having seen the reports from Dr Vowels and Dr Burton, Dr Gibbs’ opinion remained unchanged, noting Dr Burton’s finding was similar to his.

Claim documentation

243     A Transport Accident Commission Claim Form was signed by the plaintiff on 10 November 2009, the details therein having been completed by his sister.  It was noted “before accident I was a[n] ex-student looking for work but was unsuccessful.  At present I cannot even eat food or sleep.”   It was noted the injuries still preventing the plaintiff from looking for work were “neck brace, sore head, jaw pain, memory unstable, walking is hard and sleeping disorder”.

Overview

Credit

244     As counsel for the defendant noted, it would not be surprising, from the cross-examination, that the plaintiff’s reliability and credit was very much an issue and the medical evidence was largely based on incorrect histories given by him.[53]

[53]T74

245     It was submitted that the plaintiff is an unreliable witness who, until the commencement of the hearing, blamed all his problems on the accident and then retreated from that position, conceding his complaints of dizziness and sexual problems predated the accident.  In these circumstances, “one must take him and his self-reporting with a very large grain of salt”.[54]

[54]T82

246     It was submitted the plaintiff’s explanation as to the assault is implausible.  Further, there were numerous significant inaccuracies in his affidavits, particularly his evidence that he was studying at the time of the accident and had worked as the store manager at the bottle shop.[55]

[55]T109

247     It was submitted that doctors who supported the plaintiff did so largely on his self-report and on the basis of the reliability and credibility of his histories.

248     As Chernov JA held, in Dordev v Cowan,[56] a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

[56][2006] VSCA 254 at paragraph [14]

249     Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.

250     In response, counsel for the plaintiff submitted that pre-accident, the plaintiff was of low-average intelligence, which explained some of the inconsistencies in his evidence.[57]  However, counsel volunteered that the plaintiff gave an implausible answer in relation to the assault.[58]

[57]T116

[58]T116

251     Further, it was submitted there was no real allegation that the plaintiff embellishes his symptoms, and a number of medical examiners, including Dr Burton and Dr Vowels, accepted the veracity of his complaints.[59]

[59]T122

252     In my view, the plaintiff was an unreliable and untruthful witness and I largely accept the submissions made on behalf of the defendant in this regard.  I thought the plaintiff attempted to maximise the impact of the accident on his life, giving a false picture of his pre-accident level of activity, both in terms of work and study.  One example was his history to Dr Vowels which led her to conclude that, pre-accident, he had a dynamic small business.[60]

[60]T82

253     Further, the plaintiff was prepared, until the hearing, to attribute significant problems with balance and erectile function to the accident when these problems clearly predated the accident.  Also, his evidence relating to his involvement in the assault was simply unbelievable.

254     In these circumstances, I have difficulty accepting the plaintiff’s evidence as to his level of spinal pain and cognitive problems, particularly in the absence of any contemporaneous support from treaters or other family members in relation thereto.[61]

[61]T112

255     Further, the plaintiff’s wife’s affidavit evidence to some extent contains inaccuracies deposed to by the plaintiff, such as him studying at the time of the accident.  As the plaintiff was successfully challenged in relation to this and other issues, it was unnecessary to put the same material to the plaintiff’s wife in cross-examination.[62]

[62]T111; Ifkav Shahin Enterprises Pty Ltd [2014] VSCA 8 at paragraph [47]

Spinal impairment – application pursuant to sub-paragraph (a)

256     Whilst I am permitted to consider the consequences of the spine as a whole when determining seriousness, it is of some assistance to look at the cervical and lumbar injuries separately when undertaking this task.

257     Further, I am required to consider whether any spinal impairment has a substantial organic basis or has organic consequences which are “serious”.  Counsel for the defendant submitted it was impossible for the plaintiff to satisfy the requirements of the two-step manner in which this task ought to be approached.[63]

[63]T109

258     As Maxwell P set out In Meadows v Lichmore Pty Ltd:[64]

“…  The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on.  If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’.  That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”

[64][2013] VSCA 201 at paragraphs [21]-[22]

259     There is no issue that the plaintiff suffered an injury to the cervical spine in the accident and liability was accepted in relation thereto by the defendant.[65]

[65]Claim Form dated 10 November 2009; See Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171

260     Ligamentous damage was shown on an MRI scan taken at the Hospital and the plaintiff’s initial complaints and treatment related to neck pain.  Whilst counsel for the plaintiff submitted these MRI findings might explain the plaintiff’s complaints of pain, it was conceded there was no medical evidence to this effect.[66]

[66]T118

261     Early treaters considered the prognosis for the plaintiff’s neck injury was good.  When he was discharged from the VRC Centre physiotherapy department in May 2010, Dr Bala noted the plaintiff had no further issues with neck pain.   

262     Dr Ngo expected a full recovery by September 2010.  In August 2013, his partner, Dr Blumberg, described the plaintiff’s condition as a resolving injury to the upper cervical spine. 

263     On medico-legal review in May 2012, Mr Waterston noted there was no treatment for the cervical spine apart from an exercise program. 

264     In his 2016 report, the plaintiff’s current general practitioner, Dr Heydari, did not mention the plaintiff’s cervical spine, nor was there any specific complaint in relation thereto in the clinical notes of his practice from September 2014 when it took over the plaintiff’s care.

265     The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.[67]   At present, the plaintiff’s neck is painful at times and this pain can lead down the left side of his neck over his left shoulder blade. 

[67](2010) 31 VR 1 at paragraph [11]

266     Following discharge from hospital, treatment for the cervical spine has consisted of referral to the VRC in 2010 and as of 2014, monthly massage at the local shopping centre for both the plaintiff’s neck and back.  It seems the only medication for neck pain at present is Nurofen, which the plaintiff also uses to treat his other physical problems. 

267     On various examinations, the plaintiff has had a relatively good range of cervical movement and no significant clinical findings.  He agreed that at times, he had a normal range of movement.  Earlier this year, Professor Stark found a minimal restriction in all directions, Dr Powell found a full range of movement and Mr O’Brien found mild restriction, as did Mr Fogarty the previous year.

268     Whilst the consensus of medical opinion was that the plaintiff suffered a soft tissue injury with ligamentous damage, in more recent times, a number of examiners consider non-organic factors are playing a large part in the plaintiff’s presentation.

269     Dr Powell and Dr Waterston most strongly hold this view, with the former diagnosing a Chronic Pain Syndrome with no mechanical injury and Dr Waterston describing the plaintiff as being entrenched in a cycle of chronic pain and psychological dysfunction.  Whilst Mr O’Brien diagnosed non-specific neck and low back pain,[68] he noted the lack of a pathological basis for the plaintiff’s mild or moderate complaints and thought he was presenting with a Chronic Pain Syndrome.  He recommended pain management and ongoing assistance for psychological issues.[69]

[68]T120

[69]T104

270     There is, however, some medical support for an organically-based condition.

271     Mr Fogarty thought the plaintiff had suffered a soft tissue injury to his neck and made no mention of any non-organic factors following examination in February 2015. 

272     Professor Stark did not address the neck injury in any detail in March this year, simply noting the plaintiff suffered a soft tissue injury, focussing more on the injury to the lumbar spine.

273     The plaintiff’s treating practitioner, Dr Heydari, does not comment on this issue in his very brief 2016 report, and made no mention of any neck complaint.

274     Taking into account all the medical evidence, I am not satisfied any neck complaint presently has a substantial organic basis, thus the plaintiff is required to take the next step and “disentangle” the physical contribution from the psychological in order to satisfy the Court the consequences attributable to the physical are “serious”. 

275     I accept that the plaintiff also suffered injury to his lumbar spine in the accident and his claim in relation thereto was also accepted.  Although there was no submission to the contrary, counsel for the defendant pointed to the lack of early and continuing back complaints suggesting there was not a back injury of any significance. 

276     In terms of early complaint, the hospital discharge summary contained a reference to lower thoracic spine tenderness, and a back injury was noted on the plaintiff’s Transport Accident Commission Claim Form.  Further, the plaintiff complained to Dr Redhead of back pain in September 2010 and to other examiners over the following years, describing his lower back as his main ongoing problem when seen by Professor Stark earlier this year.[70]

[70]T118

277     However, in his 2010 report, Dr Ngo made no mention of lower back complaints, nor did his partner, Dr Blumberg, in his August 2013 report, both significant omissions.[71] There was no mention of back complaints when the plaintiff attended the VRC in 2010.

[71]T99

278     The plaintiff confirmed that whilst he hurt his back in the accident, he had no real back complaints for two years thereafter.[72]  He agreed he first mentioned back pain to his general practitioner in March 2012, next mentioning it almost a year later.

[72]T100

279     As of May 2012, Dr Waterston noted the plaintiff was having some lower back pain, but it was improving, and did not seem to be a major problem. 

280     Dr Heydari simply noted in his 2016 report that the plaintiff had had back pain.  There was no mention of back complaint from September 2014 in his clinical notes.

281     The only treatment for the lumbar spine appears to be painkilling medication.  Whilst the plaintiff said in his viva voce evidence that his present chiropractic treatment includes treatment for his back, as well as left shoulder, he referred to the left shoulder only in his affidavit.[73]

[73]T101

282     On examination, the plaintiff has not exhibited significant lumbar restriction.  He agreed that some days he has a full range of lumbar movement. 

283     When examined by Professor Stark earlier this year, lumbar movement was moderately restricted in all directions.  Dr Powell found normal rotation to the left and right.  Mr O’Brien found a mild restriction of lumbar movement and whilst Mr Fogarty found some restriction, he noted the plaintiff was largely mobile.  Dr Waterston noted a reduced range of movement.

284     However, when Professor Stark examined the plaintiff earlier this year, there was some palpable spasm in the lumbar paraspinal muscles – a similar finding to his 2014 examination.[74] 

[74]T120

285     In terms of the plaintiff’s complaints of pain, he describes his head and back pain as his most debilitating.  He has constant lower back pain and continues to have intermittent pain that can run into both legs and his feet.   

286     Medico-legal opinion as to the organic basis of the plaintiff’s lumbar injury is somewhat similar to that in relation to the cervical spine.

287     Dr Powell, Dr Waterston and, to a lesser extent, Mr O’Brien, considered a Chronic Pain Syndrome was present.  Mr Fogarty thought there was a possible soft tissue injury to the lower back.  Professor Stark accepted there may be some organic basis to the plaintiff’s lumbar complaints despite the unremarkable imaging.

288     Taking into account all the medical evidence, I am also not satisfied any present back complaint has a substantial organic basis, thus the plaintiff is required to take the next step and “disentangle” the physical contribution from the psychological in order to satisfy the Court the consequences attributable to the physical are “serious”. 

289     In addition to disentangling the physical from the psychological consequences, I am required to focus on the consequences of any organic spinal impairment alone and determine whether the consequences thereof are “serious”.

290     In Peak Engineering & Anor v McKenzie,[75] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[75][2014] VSCA 67

291     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[76]

[76]Peak Engineering & Anor v McKenzie (supra) at paragraph [1]

292     The President found that the judge was:

“(a)bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated condition; and

(b)when the consequences properly referable to the relevant injury were identified, identified them as ‘serious’.”[77]

[77](ibid) at paragraph [2]

293     The plaintiff faces further significant difficulties in successfully undertaking this task, as his counsel conceded.[78]

[78]T124

Consequences

294     Counsel for the plaintiff submitted the physical injury “obviously triggered longstanding consequences”.[79]  As a result of his pain, the plaintiff’s boxing activities, the gym and his ability to run were affected and he suffered sleep disturbance.

[79]T121

295     If the application was brought under sub-paragraph (a) only, it was submitted the main point would be that the accident occurred when the plaintiff was only nineteen.[80]  Now, seven years later, he still has pain, which is accepted as genuine by doctors, and he is going to have it for the rest of his life.[81]

[80]Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [43]

[81]T125

296     In my view, the plaintiff is unable to establish that the consequences of an organic spinal impairment alone are “serious”.

297     The plaintiff agreed that the list of complaints he set out in his 2014 affidavit[82] all combine to cause him difficulty at present.  In the last two years, there has also been the significant new problem of left shoulder pain which the plaintiff attributes to the accident, which also impacts on his activities. 

[82]See paragraph [38] of this Judgment

298     Dr Heydari referred the plaintiff to Dr Haddad for chiropractic treatment to his left shoulder in early 2016.  There is no report available from that practitioner.

299     Together with Post-Traumatic Stress Disorder, the only condition Dr Heydari is treating is Snapping Scapula Syndrome.  He thinks the plaintiff’s prognosis is unpredictable but does not explain why.   

300     In my view, the impact of the plaintiff’s left shoulder on his various activities is very significant and cannot be dismissed, as his counsel urged.[83]

[83]T123

301     The plaintiff also recently deposed that in addition to his back pain, his most devastating injury from the accident is his head. 

302     In my view, little has changed with the plaintiff’s work situation pre and post-accident and I do not accept he is not currently working as a result of any spinal condition.  The plaintiff could not have been described as a reliable employee before the accident.  He was never in paid employment and his attendances at work were infrequent.  This is still the case now.

303     I have difficulty accepting the level of the plaintiff’s back complaints in relation to work and its effect on other activities, given my views as to his credit and the lack of medical evidence explaining such claimed restrictions. 

304     In any event, the plaintiff attributes his inability to work to the range of his complaints, both physical and mental, including his issues with people looking at his scars.

305     In terms of work, the plaintiff failed to attend a pre-vocational assessment organised for him at the VRC in 2010 following the completion of the pain management program.  Since then, he has made no real attempt to work, simply continuing to attend family businesses on the odd occasion and attempted other jobs for a couple of days.

306     No treating practitioner has provided any view as to the basis of any present back complaint and its effect on the plaintiff’s work capacity. 

307     Medical practitioners who have commented on the plaintiff’s work capacity consider he can work, or, if he cannot, his incapacity is due to factors other than any spinal complaint.

308     Early on, Mr Redhead thought the plaintiff’s balance problems would have an effect on his work capacity.[84]  

[84]T104

309     Dr Powell thought the major impairment going back to work was a closed head injury.[85]  

[85]T107

310     Dr Waterston had grave doubts the plaintiff will ever be able to return to paid employment, as he was entrenched in a cycle of chronic pain and psychological dysfunction

311     In Mr O’Brien’s view, the plaintiff was capable of returning to suitable duties.[86]

[86]T105

312     Professor Stark considered the plaintiff was fit to undertake some work, noting the difficulty quantifying the plaintiff’s lower back pain, and the extent of his restrictions, depending on the accuracy of his history.[87]

[87]T89

313     As the plaintiff conceded, his shoulder problem impacts on his ability to box and work out at the gym.  His left ankle, which is not his “most severe pain”, stops him from running.  He agreed that a combination of all his physical problems and his mental state impacts on his ability to return to the gym.

314     The plaintiff agreed that his sleep is affected by his shoulder, back, head and neck pain. 

315     Whilst he was somewhat reluctant to answer questions relating to his current medication intake, the plaintiff finally accepted he takes painkillers for a range of his physical problems, including his left shoulder.

316     Taking into account all the evidence, I am not satisfied any organically-based spinal impairment alone is “serious”.

317     Accordingly, the application pursuant to sub paragraph (a) is dismissed. 

Psychiatric impairment pursuant to sub-section (c)

318     Counsel for the plaintiff submitted there was overwhelming evidence that the plaintiff suffers from a severe psychiatric or long-term behavioural disorder.[88]

[88]T126

319     The plaintiff complains of ongoing Depression, mood swings and difficulty with memory and concentration.  News reporting of car accidents reminds him of his accident and he totally avoids being driven as a passenger.

320     Whilst there were a number of labels put on the plaintiff’s mental condition, counsel for the plaintiff mainly relied on a non-organic Chronic Pain Syndrome and submitted this diagnosis could explain the plaintiff’s unusual behaviour in the witness box – his difficulty answering questions in cross-examination, together with the constellation of symptoms of which he complained.[89]

[89]T121

321     However, there has been no psychiatric diagnosis in these terms.  The medical examiners relied on in this regard were orthopaedic surgeons, Dr Powell and Mr O’Brien, and neurologist, Dr Waterston, who could not explain the plaintiff’s complaints on organic, physical grounds.

322     Further, counsel for the plaintiff relied on the examination findings and testing carried out by neuropsychologists as supportive of the plaintiff having psychological problems which explained his reported disability in the absence of any organic brain damage.

323     However, as counsel for the defendant submitted, neuropsychological examiners such as Dr Burton are qualified to express a view as to whether there was an organic basis in terms of brain injury to explain the plaintiff’s presentation.  Having found this was not the case, they thought psychological factors may be relevant but were not qualified to express an opinion further in that regard.[90] Their comments cannot be elevated to a diagnosis of a psychiatric injury.[91]

[90]T80

[91]T81

324     In any event, the findings made by these practitioners depended to a large degree on the plaintiff’s self-report in circumstances where I have significant concerns as to his reliability. 

325     Treating general practitioners, whilst providing no opinion as to the need for ongoing psychiatric treatment, save for the prescription of a low dosage of Pristiq, have diagnosed Post-Traumatic Stress Disorder – a view dismissed by Professor Doherty. 

326     In 2016, Professor Doherty thought there were few significant psychological or psychiatric symptoms present and considered, at most, the plaintiff has suffered an Adjustment Disorder with mild symptoms of Anxiety and Depression and mild features of traumatisation.  Significantly, he considered and dismissed a diagnosis of pain-related psychiatric condition.

327     Dr Serry diagnosed an incompletely resolved Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation.  His diagnosis did not include a Chronic Pain Disorder.[92]

[92]T93

328     In my view, Dr Serry’s assessment does not indicate a severe psychiatric impairment and his opinion is largely based on the plaintiff’s self-report and an inaccurate history of a high level of functioning pre incident.

Treatment

329     Whilst not determinative of the severity or otherwise of a psychiatric impairment, the extent of treatment may cast some light on whether the disorder should be considered “severe”.[93]

[93]Katanas v Transport Accident Commission [2016] VSCA 140

330     The plaintiff has had very limited treatment.  He initially underwent counselling at the Victorian Rehabilitation Centre, where Dr Bala noted, in January 2010, the plaintiff chose to cease clinical psychology as there was a significant improvement in his mood. 

331     Thereafter, the plaintiff was referred to a local psychologist, Dr Strubel, in 2012, whom he does not seem to have attended.  The plaintiff did see a female psychologist in his local area some three to four years ago, but there is no report available from that practitioner.

332     The most recent referral for psychiatric treatment was by Dr Heydari to a clinic in Sunshine earlier this year.  The plaintiff attended but did not see anyone, as he had been allocated a male psychiatrist and he wanted to see a female.  Since that attendance, he had not discussed this issue with Dr Heydari or made any arrangement to be sent to a female psychiatrist.

333     In these circumstances, the plaintiff’s attitude to further treatment is somewhat unclear.  It is impossible to reconcile this situation with his affidavit evidence that he is prepared to try counselling and/or psychiatric treatment in the future.[94]

[94]T127

334     It is very difficult in the absence of any treating psychiatrist or psychologist to make a proper assessment of the plaintiff’s current psychiatric condition and the prognosis in relation thereto.[95]

[95]T75

335     The plaintiff is currently prescribed 50 milligrams of Pristiq daily.  Professor Doherty described this as a small amount of a first generation anti-depressant[96] which will improve the plaintiff’s sleep but not treat a depressive condition. 

[96]Dr Serry agreed this was a low dosage

Other consequences

336     Counsel for the plaintiff submitted the plaintiff’s work capacity had been affected by his mental state.

337     It was submitted the “usual suspects” of that syndrome were present, namely lethargy and tiredness.  Whilst he appeared on the surface to be not much different in his life after the accident than before, it was submitted that before the accident the plaintiff was only nineteen.  Now he is a sick person who is twenty-eight and has a young baby and a wife.  He is in “an awful state, triggered by the accident.”[97]

[97]T132

338     The plaintiff however, attributes his inability to work to a range of factors, physical and emotional, as noted earlier.[98]

[98]At paragraph [47] of this judgment

339     Treating GP, Dr Heydari does not comment on the plaintiff’s work capacity from a psychiatric viewpoint.

340     Professor Doherty thought any accident-related psychiatric impairment did not interfere in any significant way with the plaintiff’s work.  In any event, the plaintiff told him the main problems in this regard were pain and social anxiety about his scars. 

341     Dr Serry did not specifically comment on this issue.

342     In terms of his other activities, the plaintiff himself attributes some of his problems attending the gym to his mental state.

343     Taking into account all the evidence, in particular the plaintiff’s constellation of complaints,  the lack of treatment and my concerns with the reliability of the plaintiff’s evidence, I am not satisfied that the consequences the plaintiff presently suffers from a psychiatric impairment or a behavioural disorder, meet the higher test of “severe”.

344     Accordingly, the plaintiff application pursuant to sub-paragraph (c) is also dismissed.

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