Abdul-Rahim v Transport Accident Commission
[2013] VCC 1795
•11 November 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00029
| IBRAHIM ABDUL-RAHIM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 October 2013 | |
DATE OF JUDGMENT: | 11 November 2013 (Revised) | |
CASE MAY BE CITED AS: | Abdul-Rahim v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: First revision 22 November 2013 | [2013] VCC 1795 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – lower back injury – absence of complaints of lower back injury to examining doctors – significant complaints of the impairment consequences of the lower back in the plaintiff's affidavits – creditworthiness and reliability of the plaintiff – psychiatric injury – significant complaints of impairment consequences of the psychiatric injury in the plaintiff's affidavits – extent to which the creditworthiness and reliability of the plaintiff in connection with the lower back injury rendered the probative value of the opinions relevant to the psychiatric injury less persuasive
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms A Ryan | Slater & Gordon |
| For the Defendant | Mr Clements SC with Ms M Tsikaris | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 8 January 2013 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 24 July 2010.
2 Mr R McGarvie of Senior Counsel appeared with Ms A Ryan of Counsel for the plaintiff and Mr A Clements SC appeared with Ms M Tsikaris of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides that a court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17)(a) and (c); that is, that the plaintiff has suffered a serious long-term impairment or loss of the function of his lower back, and has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder.
5 The injuries suffered by the plaintiff for which leave is sought are injuries to his lower back, and psychological state.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 6-107: Exhibit A;
· The defendant tendered film taken of the plaintiff on 29 July 2013: Exhibit 1;
· The defendant tendered its Court Book, pages 1-42 and 49-90: Exhibit 2.
The Plaintiff's background
7 The plaintiff was born in 1993. He is now twenty years of age. He is a single man. He lives with his parents.
8 The plaintiff swore two affidavits, on 27 July 2012 and 25 October 2013. The affidavits are very short on any detail relevant to the plaintiff’s educational background. What his affidavits and oral evidence do reveal, however, is that when the transport accident occurred he was seventeen years of age. He attended secondary schooling and then a TAFE college, where he commenced a pre-apprenticeship course in auto mechanics.
9 It was the plaintiff’s intention to complete the TAFE course and to then take up an apprenticeship as an auto mechanic.
The transport accident
10 On 24 July 2010, the plaintiff was a front-seat passenger in a car driven by his cousin. In the course of that journey, his cousin lost control of the car, which then collided into a power pole. The extent of the damage to the car is demonstrated in photographs tendered by the plaintiff. The main impact was to the passenger side door. The plaintiff was seated in the front passenger seat.
The Plaintiff’s medical treatment
11 The plaintiff was removed from the scene of the transport accident by ambulance. He was admitted to The Royal Melbourne Hospital. He suffered a number of injuries. He was mainly managed in the Orthopaedic Unit of the hospital. He was provided with analgesia, physiotherapy and occupational therapy. He was discharged on 28 July 2010. He then attended as an outpatient. The last occasion he attended as an outpatient was on 16 February 2011. On that occasion, an examination of his lower back revealed that he had tenderness over L4-5. He was referred to the Orthopaedic Clinic for follow up. He did not attend that appointment.[1]
[1]PCB 19-20
12 The plaintiff saw Dr Zaini, general practitioner, on 16 August 2010. Dr Zaini provided a report dated 29 June 2011. What is clear from that report is that the plaintiff was troubled by injuries to his nose, abdomen, chest, pelvis, and from lacerations at the time he composed that report.
13 The report of the hospital dated 10 June 2011 does not disclose what medication the plaintiff was prescribed while an inpatient and during his outpatient treatment. Dr Zaini was aware that the plaintiff had been prescribed paracetamol, iron tablets and Oxycodone for pain relief. He ceased the plaintiff’s use of morphine (Oxycodone) because of his concern that it can be associated with the onset of depression.
14 Dr Zaini noted that the plaintiff was feeling psychologically down when he first saw him. He also noted that the plaintiff was experiencing chest pain when he saw him on 18 January 2011, which led him to prescribe the plaintiff anti-inflammatory medication (Naprosyn).
15 Dr Zaini noted, on 2 March 2011, that the plaintiff was feeling depressed. He prescribed the plaintiff Lexapro, which is an antidepressant.
16 Dr Zaini referred the plaintiff to Dr Ibrahim, psychiatrist, at the Northpark Private Hospital. The plaintiff saw him on one occasion. It is not clear when the plaintiff saw him. The only treatment provided for the plaintiff by Dr Ibrahim was to increase the dosage of Lexapro from 10 milligrams to 20 milligrams. No report has been obtained from Dr Ibrahim.
17 Dr Zaini has continued to treat the plaintiff. According to his medical reports dated 2 August 2013 and 24 October 2013, the plaintiff has complained of a number of medical problems which he suffered in the transport accident, which he recorded as follows:
“His major problem and complaints at the moment are:
Low level of energy, tiredness and feeling week.
Poor function state.
Memory and concentration issues.
Pain in his chest and hip, could be psychological.
Insomnia and sleeping difficulty.
Adjustment Disorder and Major Depression Mood.”[2]
[2]PCB 26
18 Dr Zaini expressed an opinion in his last report, that the plaintiff is unfit for work which involves heavy physical activity including carrying more than 5 to 7 kilograms, or recurrent bending or lifting. Furthermore, that he cannot pursue his TAFE course. He requires further psychiatric treatment and rehabilitation.[3] However, he did not say whether those restrictions were a result of the injury to the plaintiff’s chest or to his lower back. In the absence of any history of a lower back injury in any of his reports, I infer that the restrictions were referable to the injury to the plaintiff’s chest.
[3]PCB 26-27
19 Dr Zaini prescribed the plaintiff Lexapro, 20 milligrams, one per day. Naprosyn, 250 milligrams, one per day, and Panadeine Forte. The dosage of Panadeine Forte is described as “500mg/30mg”. I am not sure what that means. He also prescribed the plaintiff Voltaren, 25 milligrams, one to two per day. I will return to the plaintiff’s evidence later relevant to the reason why he takes that medication.[4]
[4]PCB 24
20 During the trial, the plaintiff said that he has pain in his lower back, pelvis, left hip and leg. In relation to the pain in his left hip and leg, he demonstrated the extent of that pain from the witnessbox. He ran his hand from his left hip down his left thigh to the knee.
The application
21 At the commencement of the trial, Mr McGarvie informed me that the plaintiff sought an order that he be given leave to bring a proceeding for the impairment consequences of the injury to his lower back and the impairment consequences of a mental or behavioural disturbance disorder.
22 Mr Clements submitted that the plaintiff could not succeed with either. In summary, he submitted:
· The injury to the plaintiff’s lower back was not caused by the transport accident
· If it was, then the impairment consequences do not meet the statutory test
· The impairment consequences of mental or behavioural disturbance or disorder do not meet the statutory test.
The lower back
23 The plaintiff made no complaint that he had suffered an injury to his lower back when he was initially admitted to The Royal Melbourne Hospital. That is plainly obvious from the report of the hospital dated 10 June 2011. The first reference to the plaintiff having any lower back pain symptoms was on 16 February 2011 when an examination elicited tenderness over L4-5. However, an entry in the clinical notes of the hospital dated 10 August 2010 relevantly reads:
“Tenderness over L lateral aspect of lumbar spine.”[5]
[5]Exhibit B
24 Despite what is contained in the report of the hospital, the plaintiff did make a complaint of pain in his lower back some seventeen days after the occurrence of the transport accident.
25 In his first affidavit sworn 27 July 2012, the plaintiff said that he suffered an injury to his lower back as a result of the transport accident. He also said that he has continued to suffer from pain in his lower back, causing restriction of movement, and in particular, his ability to sit or stand for prolonged periods of time, and when bending and lifting.[6] The construction of the plaintiff’s affidavit would leave the reader in no doubt that the plaintiff intended to convey that he suffered an injury to his lower back caused by the transport accident which produced the pain and disablement described later in the affidavit. However, an analysis of the medical material does not support a causal link.
[6]PCB 6-7
26 Dr Zaini provided three reports, dated 29 June 2011, 2 August 2013 and 24 October 2013. He did not record any complaints made by the plaintiff of pain or disablement in his lower back in his first report which spans the period from 16 August 2010 to 24 June 2011. The substance of the report is taken up with references to other injuries. Nor are there any recorded complaints in his subsequent reports which I infer cover his treatment of the plaintiff from 24 June 2011 and to the date of the last report, being 24 October 2013. If the plaintiff suffered impairment consequences of the magnitude he contended for in his second affidavit and in his oral evidence, then it is strange that Dr Zaini has not only made no record of any such complaint, but has made no reference to the plaintiff’s lower back injury at all.
27 The solicitors for the plaintiff referred the plaintiff to Professor Stark, neurologist. Professor Stark examined the plaintiff on 28 May 2012, which is about 22 months after the occurrence of the transport accident. He recorded a history that the plaintiff was suffering from lower back pain which was worse on the right side than the left. The pain worsened if he carried anything. The pain did not radiate down into his buttocks or his legs. He experienced tightness in his legs if he walked for about 20 minutes. If he did, then he would be forced to stop and rest. On resting he suffered numbness or tingling or tightness in his legs.
28 Professor Stark examined the plaintiff and said that the plaintiff’s lower back movements were somewhat restricted in all directions, particularly on extension, which he described as being only minimally preserved. He said that the plaintiff had non-uniform restriction of lower back movements. He believed that the plaintiff had suffered a jolting injury to his lower back.[7]
[7]PCB 32-34
29 Professor Stark re-examined the plaintiff on 22 July 2013. On that occasion, he obtained a different history from the plaintiff regarding the pain he was experiencing in his lower back. The plaintiff told him that the pain was “knife like”. The pain worsened if he got up quickly or made the wrong movement. Coughing might make the pain worse. He could only stand for 10 minutes or so and walk for about 15 minutes or so before the pain worsened.
30 When Professor Stark re-examined the plaintiff he found that the plaintiff’s lower back movements were moderately restricted, especially flexion and extension, with some tenderness and intermittent spasm in the right lower paraspinal muscles. He then said that the plaintiff had “some” ongoing lower back symptoms. He repeated that the plaintiff demonstrated some non-uniform restriction of lower back movements with some paraspinal muscular spasm.
31 Professor Stark did not explain what he meant by “non-uniform” when he referred to the plaintiff’s lower back movements. I take that to mean that the movements which the plaintiff demonstrated were not consistent with what Professor Stark expected would be the case.
32 Leaving aside the plaintiff’s evidence for one moment, the strongest medical support for the proposition that the plaintiff did suffer an injury to his lower back in the transport accident, and has suffered impairment consequences is that of Professor Stark.
33 However, Mr Clements was very critical of the opinion of Professor Stark. He submitted that it was vague, and it did not identify the pathological processes in the plaintiff’s lower back which were responsible for the pain and disablement found by Professor Stark; that Professor Stark did not provide a prognosis which would enable me to determine that the impairment consequences are long-term, and the opinion lacked any reference to the plaintiff’s capacity to function in a social, domestic, recreational and vocational setting.
34 Mr Clements added to his list of criticisms by referring to the last page of Professor Stark’s report dated 22 July 2013 in which he pointed to the deficiencies in his medical expertise in assessing the plaintiff’s complaints of pain and disablement. He suggested that a rheumatologist or orthopaedic specialist would need to be asked whether the musculoskeletal problems of the plaintiff “are objectively sufficient to cause the limitations that he describes”. It rather suggests that Professor Stark did not consider himself to be in a position to give an accurate or reliable diagnosis and prognosis.[8]
[8]PCB 38
35 Mr Clements was very critical of the plaintiff and submitted that I should doubt the truth of the plaintiff’s evidence because of an absence of any complaint of lower back pain made to Mr Fogarty, orthopaedic surgeon, to whom the plaintiff was referred by his solicitors. Mr Fogarty examined the plaintiff on 1 July 2013.
36 The solicitor for the plaintiff wrote to Mr Fogarty requesting him to provide a supplementary report. Mr Fogarty did so by a report dated 5 August 2013. In that report, he said that the plaintiff had not complained of suffering injury to his lower back. He then relevantly added:
“ Even if there had been an injury to your client’s back, my examination had revealed no significant clinical findings and there was no muscle guarding nor history of guarding in the lumbo-sacral or the thoraco- lumbar regions of the spine.”[9]
[9]PCB 77
37 It would appear that Mr Fogarty examined the plaintiff’s lower back in the course of his examination of the plaintiff’s pelvis, hip joints and thoraco-lumbar spine. He found no abnormality in any of those areas. Mr Fogarty is an orthopaedic surgeon. He possesses the very specialist background from whom Professor Stark considered an opinion should be obtained. Mr Fogarty was not asked to re-examine the plaintiff.
38 The defendant referred the plaintiff to Dr Elder, specialist in occupational and environmental medicine. He examined the plaintiff on 7 September 2011 and 29 July 2013. The plaintiff did not complain of suffering injury to his lower back to him. He did complain of a bit of tightness in his legs,[10] and pain in his legs.[11] Dr Elder examined the plaintiff’s “axial skeleton”, finding a full range of motion in all aspects of the plaintiff’s axial skeleton with no muscle spasm.[12]
[10]DCB 12
[11]DCB 18
[12]DCB 13 and 19
39 Mr Clements referred me to other medical reports in which the plaintiff referred to his lower back injury as being of little consequence. The plaintiff was examined by Dr Entwisle, psychiatrist, on 11 September 2013. Dr Entwisle recorded that the plaintiff told him that he was suffering from “mild lower back pain”.[13] The plaintiff was examined by Dr Firestone, psychiatrist, on 10 February 2012. Dr Firestone recorded that the plaintiff told him “His least troublesome complaint is of low-back pain”.[14]
[13]DCB 8
[14]DCB 22
40 The effect of the plaintiff’s evidence was that he had suffered an injury to his lower back caused by the transport accident, and that he is significantly troubled by the injury. I am not persuaded that I can accept much of the plaintiff’s evidence in that respect.
41 The product of some aspects of the cross-examination of the plaintiff exposed a number of consequences which the plaintiff says have been produced by the injury to his lower back which he cannot sustain.
42 The plaintiff’s affidavit sworn 27 July 2012 is not overly edifying regarding the impairment consequences of the injury to his lower back. In his affidavit sworn 25 October 2013, he expanded upon those consequences. In summary, he said:
· He suffers constant pain in his lower back extending into his left hip and left leg which varies in intensity.
· The pain worsens on physical activities such as walking for too long or standing too long.
· He suffers pain in his left groin which sometimes extends down into his left leg.
· His sleep is regularly disturbed by lower back pain. He is woken at night and cannot return to sleep.
· He uses Panadeine Forte for pain relief for headaches and for his lower back, left hip and leg pain. He also takes Naprosyn on average three times per day.
· He does a little around the house where he lives. He does not help his father in the garden any more. He is unable to engage in any physical or strenuous activity. He is unable to help with lighter chores such as sweeping outside.
· He has lost fitness. He is unable to run because it aggravates his lower back and left hip pain, nor is he able to squat or kneel.
· He has not been able to complete his TAFE course in auto mechanics, and is therefore unable to pursue his chosen vocation as an auto mechanic.
· He is incapacitated for physical work. He attempted to work in a café where his brother works. He was unable to work for more than four to five days because of pain in his lower back and hip. He was unable to work as a dishwasher at the Royal Children’s Hospital in early 2013 for more than two days for the same reasons.
43 Under cross-examination, the plaintiff gave a different complexion of some of the consequences of the injury to his lower back:
· His sleep is disturbed about once a month by stabbing lower back pain.[15]
· The main reason for his use of Panadeine Forte is to treat headaches. His reason for using Naprosyn is to treat chest pain.[16]
· It would appear that he has been treated more for chest pain than for lower back pain. The gravity of the problems he has encountered with the chest injury can be measured by the fact that he has been referred to have two CT scans on 20 April 2012 and 17 June 2013 to determine the cause of his chest pain.
[15]Transcript 32-33
[16]Transcript 57-58
44 This application for serious injury is curious. It is based upon the clinical notes of The Royal Melbourne Hospital of tenderness at L4-5, but then precious little else. There is nothing in the reports of Dr Zaini pointing to the plaintiff complaining of lower back pain, or having any treatment for lower back pain. There is nothing in the examinations undertaken by Dr Elder and Mr Fogarty pointing to the plaintiff complaining of lower back pain. It would appear that Dr Elder and Mr Fogarty actually undertook examinations of the plaintiff’s spine. Those examinations might not have been directed to the plaintiff’s lower back directly through some complaint from the plaintiff of having suffered an injury to his lower back, but nonetheless those examinations did not disclose any abnormality of any kind. It is curious that the plaintiff did not say something to Dr Elder and Mr Fogarty at the time when his spine was examined if he had any pain or limitation of movement in his lower back.
45 The foregoing leads me to conclude that the histories taken by Dr Firestone and Dr Entwisle are more likely to be accurate. Whatever pain the plaintiff may have been suffering to his lower back when he was examined by Dr Firestone and Dr Entwisle appears to have been modest when compared with the pain he has experienced to his chest. When that is added to the absence of any complaint made to Dr Zaini, Dr Elder and Mr Fogarty, I am fast reaching the conclusion that the plaintiff may have suffered some injury to his lower back, however, it was and is, modest.
46 In the end, my reasons for dismissing this part of the plaintiff’s application for serious injury can be summarised as follows:
· If the plaintiff suffered an injury to his lower back, its magnitude is rather more consistent with what Dr Firestone and Dr Entwisle recorded.
· I am fortified in reaching that conclusion because when the plaintiff was examined by Dr Zaini, Dr Elder and Dr Fogarty, he did not mention the very injury which he now says is his dominant injury.
· Under cross-examination, it is clear that his major verifiable medical problems are headaches, his chest and his psychiatric condition.
· The treatment he has had for his lower back is negligible, which leads me to conclude that the consequences the plaintiff says have risen from his lower back are exaggerated.
· The plaintiff did not adduce any evidence to distinguish the injuries to his lower back from his left hip, left groin and left leg. The evidence does not satisfy me that the pain in his left hip, left groin and left leg have been caused by his lower back. They may well be separate injuries operating to impair separate body functions.
The psychiatric condition
47 It is evident from the photographs that the transport accident caused very significant damage to the passenger side of the car in which the plaintiff was a passenger.
48 The trauma experienced by the plaintiff in the collision resulted in him suffering multiple injuries. Initially, he was diagnosed as having an injury to his spleen. According to Professor Eisen, consultant infectious diseases physician, the plaintiff does not require any treatment for that injury. It would appear that the plaintiff made a complete recovery and is symptom free.
49 The plaintiff suffered an injury to his nose for which he initially obtained treatment from Dr Ryan, ear nose and throat surgeon. She considered that the plaintiff would benefit from surgery to his nose.[17] That surgery was undertaken by Mr Kalus, plastic and reconstructive surgeon, on 8 June 2011. The surgery was a septorhinoplasty. On review on 1 August 2011, the plaintiff told Mr Kalus that the appearance of his nose was very satisfactory and that his breathing was much better.[18]
[17]PCB 28-29
[18]PCB 30
50 The plaintiff’s affidavit sworn 27 July 2012 is not overly edifying regarding the plaintiff’s psychiatric condition. It is his affidavit sworn 25 October 2013 in which he expanded upon those consequences. In summary, he said:
· He is angry and short tempered.
· He is lethargic and has low-energy.
· His concentration and memory are affected. He has difficulty recalling simple information.
· He has lost confidence. His self-esteem is affected. He has had suicidal thoughts.
· He has experienced shock at night and has been woken with a sensation of being struck in the face. That occurs about four to five times per week.
· He has counselling with Dr Zaini, who he sees approximately fortnightly. He is prescribed Lexapro, 20 milligrams. He takes one per day.
· He saw Dr Ibrahim, psychiatrist, on one occasion.
51 The plaintiff was referred to Ms Walters, neuropsychologist. The plaintiff saw her on 15 and 16 February 2012 and again on 12 and 14 August 2013. Ms Walters initially considered that the plaintiff had suffered a closed-head injury. However, she concluded that his symptoms were rather more depressive in nature than related to a head injury. In her second report dated 2 September 2013, she noted that he reported very severe levels of depression and anxiety. She considered that he presented with evidence suggesting that he had suffered Post-Traumatic Stress Disorder. He was not as deeply depressed when she assessed him on 12 and 14 August 2013 as he was on 15 and 16 February 2012.[19]
[19]PCB 71
52 Dr Serry examined the plaintiff on 28 June 2011 and 5 August 2013. Before he examined the plaintiff on 5 August 2013, he was provided with the first report of Ms Walters in which she considered that the plaintiff’s depression was quite severe. It would appear that Dr Serry was influenced by her opinion, and because of that I propose to go to his third report which he composed after he examined the plaintiff on 5 August 2013 and after he was in receipt of Ms Walters’ report.
53 Dr Serry appears to have obtained a history from the plaintiff of his symptoms consistent with what the plaintiff said in his second affidavit. The basis of his opinion is that the plaintiff told him that he remained physically symptomatic with ongoing pain, restrictions, and not being able to return to his full level of functioning. Dr Serry said that from a psychiatric viewpoint, the plaintiff had struggled with feelings of depression, stress, anxiety, frustration, anger, and a degree of traumatisation. He was aware that the plaintiff had seen a psychiatrist on one occasion and had been prescribed Lexapro at a higher dosage. In this setting, he considered that the plaintiff had suffered a moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation.
54 Dr Serry’s prognosis for the plaintiff was guarded given the persistent nature of both the plaintiff’s physical and psychiatric symptomology, as he understood that to be. He considered that the plaintiff needed more aggressive management of his psychiatric condition and would benefit from a referral to a multidisciplinary pain management program.[20]
[20]PCB 50-55
55 The plaintiff was examined by Dr Firestone on 10 February 2012 for the defendant. He considered that the plaintiff was suffering from depression of moderate severity with marked anhedonia and marked anergia. He noted that the plaintiff complained of post-traumatic symptoms of pre-occupation with the transport accident. He also considered that the plaintiff was frozen with fear. He recommended that the plaintiff be referred for psychiatric treatment because of the risk that the plaintiff would develop a Chronic Pain Syndrome. He did not consider that the medication prescribed for the plaintiff was effective enough.[21]
[21]DCB 25
56 The plaintiff was examined by Dr Entwisle on 31 October 2012 and 11 September 2013. Dr Entwisle was provided with Dr Elder’s report. He considered that it was Dr Elder’s opinion that the plaintiff had suffered minor injuries. It was in that setting that he observed that it was difficult to know what was going on with the plaintiff given that he had suffered minor injuries; had not returned to work, and had failed to move on. He considered that the plaintiff had suffered an Adjustment Disorder with Depressed Mood, but that diagnosis was a psychosocially determined response to the plaintiff’s injuries and an inability to initiate any move towards rehabilitation. He did not consider that the plaintiff needed any psychiatric treatment.[22]
[22]DCB 4-5
57 On the second occasion Dr Entwisle examined the plaintiff he considered that his symptoms were mild and that they were essentially related to his current lifestyle rather than any traumatic or physical injuries. He also considered that the plaintiff was avoidant and resistant to treatment, spending time at home with his parents, going out for drives and seeing his cousins. He did not consider that the plaintiff’s psychiatric condition had any impact on his ability to work or on his leisure and domestic activities.[23]
[23]DCB 9-10
58 In addition to the evidence given by the plaintiff in his affidavits, he described his psychiatric condition in the following way:
"Q:Why were you really annoyed on the day you went to see Dr Ibrahim?--
A:Because like I was expressing my feelings to him, and how I feel and like all my – all my downs and how my life has flipped over and you know, it’s just – all – it was just all crashing on everything, yeah.
Q:It was just all?---
A:Crashing down on me.
Q:Crashing down on you. You indicated that that psychiatrist increased the dose of your medication?---
A:That’s correct.
Q:Has that made any difference so far as you’re aware to the seriousness or as to whether you are getting or worse or staying the same?---
A:I get – like sometimes I get my days – I – it does – I reckon it’s working yeah, it’s doing, you know.
Q:And what is it that makes you think it's working?---
A:I smile sometimes.
Q:Sorry?---
A:Sometimes I smile, man, yeah.
Q:And is that a change?---
A:Smile, yeah, a change. But I do – I am still getting depressed, really depressed. I have like really upset moments as well.”[24]
[24]Transcript 57
59 If I accept the plaintiff’s evidence of the consequences of the psychiatric condition at face value, and the opinions of Dr Firestone and Dr Serry, then the consequences of the plaintiff’s psychiatric condition may well be severe.
60 However, in my experience of applications for serious injury based upon a psychiatric condition there are markers which demonstrate the severity of the consequences which are not present here.
61 There is very little evidence of the actual treatment provided to the plaintiff for the psychiatric condition. By 2 March 2011, Dr Zaini considered that the plaintiff presented with symptoms of depression warranting the prescription of an antidepressant. He described the Lexapro, 10 milligrams, which he said was a mild antidepressant. It was in his second report dated 2 August 2013 that he referred to the plaintiff’s psychiatric condition as an Adjustment Disorder with Major Depressive Mood. It was by that time that the plaintiff had seen Dr Ibrahim, who had increased the dosage of Lexapro to 20 milligrams.
62 I have already observed that Dr Zaini’s reports are hardly edifying. They contain very little history regarding the symptoms experienced by the plaintiff from 2 March 2011 when taking Lexapro.
63 Despite Dr Zaini’s view that the plaintiff required further psychiatric assessment, none has occurred. The only hint as to why that is the case is the conclusion reached by Dr Entwisle that the plaintiff is avoidant and resistant to treatment. The fact that Dr Zaini recommended further psychiatric assessment, and the fact that the plaintiff has not undergone this assessment is consistent with one of two conclusions – firstly, that the plaintiff is in fact avoidant and resistant; or secondly, the plaintiff’s symptoms do not warrant that level of treatment.
64 Earlier in these reasons I referred to my finding that the plaintiff exaggerated the consequences of the injury to his lower back. The basis for that finding has seriously undermined my confidence that I can accept much of what the plaintiff says, not just in relation to his lower back, but also in relation to the psychiatric condition.
65 What underwrites the opinions of Ms Walters, Dr Firestone and Dr Serry is their acceptance of what the plaintiff told them about his physical injuries and the extent to which they have disabled him. The extent to which what they were told is exaggerated inevitably impacts upon the probative value of their opinions. In the end, the conclusions I have reached are:
· The plaintiff is neither creditworthy nor reliable, for reasons which I have dealt with earlier in these reasons.
· Although I accept that the plaintiff has suffered a psychiatric condition for which he has had treatment principally through Dr Zaini, I do not accept that it is as grave as described by Ms Walters, Dr Firestone and Dr Serry.
· The persistence of symptoms of the plaintiff’s physical injuries appear to have figured reasonably prominently in the opinions expressed by Ms Walters, Dr Firestone and Dr Serry. Dr Serry made that plain when he said that the reason why his opinion was guarded was because of the persistent nature of both the physical and psychiatric symptomology and the ongoing nexus between the two. If the nexus is tenuous, then so must his opinion of the gravity of the psychiatric condition.
· Although Dr Zaini has treated the plaintiff for the psychiatric condition, he has not described what symptoms he is treating. It is not possible to determine the basis upon which he arrived at a diagnosis, and why he considers that the plaintiff should continue to take Lexapro, 20 milligrams.
· The plaintiff saw Dr Ibrahim on one occasion. No report was obtained from Dr Ibrahim setting out why he advised an increase in the dosage of Lexapro.
· I assume, from the content of Dr Zaini’s reports, that he has advised the plaintiff to have psychiatric treatment. The plaintiff has ignored that advice. I think it is more likely that the plaintiff has ignored that advice because he does not require that treatment.
· The findings I have made regarding the plaintiff’s creditworthiness and reliability, and the absence of medical treatment for the psychiatric condition, lead me to consider that the opinions expressed by Dr Entwisle are more consistent with the plaintiff’s present psychiatric predicament. It is not that the plaintiff does not have a psychiatric condition, but that it is less likely to be related to his injuries than to other factors which Dr Entwisle referred to.
· The only reason advanced by the plaintiff for his inability to pursue his TAFE course is his lower back injury. He did not give any evidence which persuades me that his psychiatric condition also incapacitates him. Indeed, when the plaintiff gave evidence of the reasons why he is physically incapacitated he said it was his lower back injury. That also appears to be the case relevant to the work he returned to at he Royal Children’s Hospital and at a café.
66 In summary, I accept that the plaintiff suffered a significant fright when the transport accident occurred. I accept that he suffered a number of injuries which were potentially serious and which required inpatient hospital treatment. I accept that he has suffered a psychiatric condition. Despite my misgivings about the plaintiff’s creditworthiness and reliability, I accept that he has impairment consequences of the psychiatric condition.
67 In the end, I am not satisfied that I should accept the opinions of Ms Walters, Dr Firestone and Dr Serry, again for reasons which I have set out above. The opinion of Dr Entwisle seems to me to be more consistent with my assessment of the plaintiff and his evidence. I do not accept that his impairment consequences of the psychiatric condition are severe. I think they are at best moderate.
Conclusions
68 For the reasons set out above, the plaintiff’s originating motion must be dismissed with costs.
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