Ahmic v Transport Accident Commission
[2016] VCC 1260
•1 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-06212
| ZIJAD AHMIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 August 2016 | |
DATE OF JUDGMENT: | 1 September 2016 | |
CASE MAY BE CITED AS: | Ahmic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1260 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychological disorder – whether, and to what extent, plaintiff suffering psychological disorder – whether related to transport accident – credibility of the plaintiff – whether injury and consequences “severe”
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Judgment: Leave granted to the plaintiff to issue proceedings for common law damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr A D Newman | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Ruskin QC with Mr D C Oldfield | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 17 May 2007, Mr Ahmic was a passenger in a car driven by his wife. His daughters were in the back seat. Another car came through an intersection and struck the vehicle he was travelling in. He described the collision as “violent”. He alleges he suffered a range of soft-tissue injuries, but also developed a significant psychological reaction, described variously as a Post-Traumatic Stress Disorder, a Major Depressive Disorder and a Chronic Pain Disorder.
2 Mr Ahmic migrated to Australia in 1999, having been exposed to civil war in the former Yugoslavia. He studied English, but has not been employed since coming to Australia. Around the time of the transport accident, he and his wife had started a business in tailoring.
3 Mr Ahmic remains under the care of a general practitioner, Dr Ilahee, and a psychiatrist, Dr Dharmage. He says he is unable to work, his activities of daily living are significantly affected and he has become socially isolated.
4 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 17 May 2007 (“the accident”). Mr Ahmic claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The application is thus brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
5 Mr Ahmic was the only witness called to give evidence and be cross-examined. In addition, affidavits of himself and his wife, treating and consultant psychiatrists and psychological reports and various clinical records, were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusion, is referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections, and those authorities.
Relevant background
6 Mr Ahmic was born in 1967 and is forty-nine years of age. He is married, with three children. He was born in Bosnia. He undertook national service for the former Yugoslavia in around 1989. He worked on the family farm, and as a forestry worker. According to his affidavit,[1] although his village was not affected by the civil war, he was threatened by Serbian troops or police. At one point, he was locked in a factory with other people for a few days. His house was demolished. He moved to Croatia in 1995 to a refugee centre where he remained until coming to Australia in 1999.
[1]Plaintiff’s Court book (“PCB”) 8
7 According to a “case summary”[2] tendered by the defendant, Mr Ahmic’s exposure to war was significantly more substantial. He was an ethnic Muslim in the village of Lisnja in the former Yugoslavia. In 1992, Bosnian Serb soldiers broke into the village, arresting villagers, including Mr Ahmic and his entire family. Sixty houses were set on fire. The villagers were kept in a local sawmill. They were held under arrest for a number of days. Mr Ahmic was punched by a soldier. While detained, Mr Ahmic was interrogated on a number of occasions and although was not physically ill-treated, he was fearful of the guards. He and others were subjected to forced labour. He was released from detention several months later, but was forced to work long hours. The summary said Mr Ahmic and his family lived in constant fear of being persecuted by the Bosnian Serb soldiers, who used to break into the village and terrorise the Muslim population. Houses were raided and shots fired. Grenades were thrown, which created panic. In 1995, flyers were posted in the village “warning” the remaining villagers to leave. Mr Ahmic and his father left for Croatia. It was said Mr Ahmic could not return to his village. He became registered as a refugee and eventually made his way to Australia.
[2]Defendant’s Court book (“DCB”) 120 – 121 – said to have been compiled from subpoenaed records of the Department of Immigration.
8 In the course of cross-examination, Mr Ahmic claimed he was unable to remember anything save for a few details of this period. It was difficult to understand, even accepting he suffers a significant psychological disorder, that he could not recall so many dramatic events.
9 Prior to the transport accident, Mr Ahmic had not suffered any significant physical injury. Despite his involvement in the Bosnian conflict, there is nothing to suggest he exhibited any symptoms of psychological disease or disorder, or received any treatment in that regard.
10 Upon his arrival in Australia, Mr Ahmic undertook a number of English language courses, but was not engaged in any employment. Shortly prior to the accident, he and his wife commenced a business as tailors, intending to produce garments for the Muslim community. The business did not proceed after the accident.
11 Mr Ahmic and his wife have two daughters and a son. His affidavit, and that of his wife, describe him as keenly involved in their upbringing, and a good father. He provided assistance to his wife in domestic tasks including some cooking, shopping and diverse handyman tasks. He mowed the lawn and worked in the garden. He enjoyed physical fitness and was able to do more than fifty push-ups. He was able to drive without difficulty, and had a healthy intimate relationship with his wife. He had no difficulty with anxiety or depression and had an active social life.
The transport accident and the consequences
12 On 17 May 2007, Mr Ahmic was a front-seat passenger in a vehicle driven by his wife. His two daughters were in the backseat. A car came through an intersection and struck his vehicle. He said the collision was violent and his car was written off.
13 Mr Ahmic’s wife and daughters also suffered injury. One daughter had blood coming from her mouth and was distressed. His wife was shocked and suffered an injury to her left foot. They were all taken to the Dandenong Hospital by ambulance, although he was discharged shortly after.
14 Mr Ahmic went to see his general practitioner, Dr Ilahee, the next day. He said he was suffering pain in his neck, abdomen and around his ribs. X-rays showed no fracture. He was prescribed pain-relieving medication. He underwent a range of investigations in relation to his neck, chest and lower back. Radiology revealed some degenerative changes in his cervical and lumbar spines. He was referred for physiotherapy and to orthopaedic and rehabilitation specialists by Dr Ilahee.
15 Mr Ahmic said he began to experience symptoms, including forgetfulness, poor concentration, lethargy and difficulties with sleeping. He became fearful of another car accident. In October 2007, Dr Ilahee referred him to a psychologist, Ms Angela Martin. According to the referral letter:[3]
“He has been suffering from forgetfulness, headache, poor concentration, scared to drive with passenger always in fear of having another accident … He had MCA with his family members in the car on 17/5/07. He is complaining since his MCA. I believe he needs counselling for post traumatic stress disorder.”
[3]PCB 48
16 Mr Ahmic saw Ms Martin on two occasions, but was unable to properly communicate with her.[4] He was referred to another psychologist, Mr Milosevic, for a short time. He has since ceased practice. He has undertaken a number of pain management courses which have involved an element of psychological treatment.
[4]PCB 61
17 Mr Ahmic was referred by Dr Ilahee to Associate Professor Mazumdar, psychiatrist, in April 2008. He complained to that practitioner of aches and pains over his body, of forgetfulness, irritability and difficulties in his relationship with his wife. He complained of being lonely, depressed and dejected. He was anxious and had difficulties when driving his car. There were flashbacks of the accident and nightmares. Associate Professor Mazumdar diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with some Post-Traumatic Stress Disorder symptoms. He noted Mr Ahmic had not experienced any psychological problems before the accident. He thought the symptoms were related to the accident.
18 Associate Professor Mazumdar reviewed Mr Ahmic on a number of occasions in 2008 and 2009. He saw him again in 2015, upon the referral of Dr Ilahee. His wife reported no improvement over the intervening period. She described him as isolated, uncommunicative and unable to participate in his children’s activities. She said he did not sleep well, and his concentration and attention was affected.
19 Associate Professor Mazumdar prescribed a range of antidepressant and anti-anxiety medications. He said:
“Mr Zijad [Ahmic] is currently 48 years old with chronic, ongoing, gradual downhill course of his chronic depression and P.T.S.D. symptoms with lukewarm or nil significant improvement with both medication and psychotherapy. The absence of any structured routine, physical activity and engagement with any work along with his reducing physical and psychological plasticity has further worsened any chance of a positive outcome in the future. The only positive aspect of his current scenario is his supportive wife who is also stretched thin because of Mr Zijad’s inactivity in all spheres of life. Hence, I don’t think that Mr Zijad Ahmic’s prognosis looks promising in any way.
I think he needs to continue with his regular psychiatric and psychological management to at least keep him going and preventing from any further deterioration of his psychological functioning.”[5]
[5]DCB 169C – 169D
20 In 2009, Mr Ahmic was referred to another psychologist, Ms Mary O’Connor, who noted anxiety, poor motivation and dysphoria. She suggested relaxation techniques and walking.[6]
[6]PCB 91
21
Mr Ahmic continued under the care of Dr Ilahee, who, in February 2013, referred him to Dr Dulip Dharmage, psychiatrist. Mr Ahmic has consulted Dr Dharmage regularly from that time to the present and, overall, has seen him on more than forty occasions. At the first consultation, Dr Dharmage reported to Dr Ilahee that Mr Ahmic was suffering depression with irritable mood since the transport accident. He was said not to enjoy life, suffered insomnia, had poor appetite, struggled with concentration and memory and had become withdrawn.
Mr Ahmic said he felt worthless and had thoughts of suicide. There was a high level of anxiety. He exhibited avoidance behaviour in relation to driving.
Dr Dharmage noted Mr Ahmic did not speak at all during the assessment. He thought Mr Ahmic was suffering a Major Depressive Disorder, Generalised Anxiety Disorder and Post-Traumatic Stress Disorder related to the accident. He thought it would take a considerable period of time to treat the illness.
22
When reviewed some months later, Dr Dharmage said Mr Ahmic was still depressed and visibly distressed, as he had to travel in the car on a rainy day. He thought the symptoms had worsened. According to his report of 2015,
Dr Dharmage noted the following:
“Over the last two years, Mr Ahmic has become more communicative and I have been able to develop a good therapeutic relationship with him. Thus, I have been able to assess him more comprehensively in the recent times.”[7]
[7]PCB 109
23 Dr Dharmage noted some mild improvement in Mr Ahmic’s depressive and anxiety symptoms over two years. Notwithstanding, he said Mr Ahmic was:
“… still experiencing depressed mood, demoralisation, anhedonia, sleep disturbances, poor appetite, impaired concentration, low energy, lack of motivation and vague suicidal ideation.”[8]
[8]PCB 110
24 He maintained the prescription of a range of anti-depressant and anti-anxiety medications. This time, he said Mr Ahmic was able to give a coherent history. In addition to the medication, he administered cognitive behavioural therapy.
25 In his final report of October 2015, Dr Dharmage was provided with a range of reports from other practitioners. He said:
“Over the last 33 months, he had mild improvements in his depressive symptoms but I have not noted any improvement in the symptoms of Post-Traumatic Stress Disorder. However, he was able to engage and maintain a limited conversation with me over the last few months. I have noted that he had become visibly distressed in rainy days when he had to travel in a car to attend my appointments, which may remind his trauma of the car accident on a rainy day in May 2007.”[9]
[9]PCB 114E
26
Dr Dharmage maintained the diagnoses of Post-Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder. He thought
Mr Ahmic had no work capacity as a result of his mental state. He thought he would require ongoing treatment and that it was unlikely there would be a full recovery from the Post-Traumatic Stress Disorder.
27 He was asked to comment on the report of Dr Timothy Entwisle, consultant psychiatrist. He disagreed with the diagnoses of Factitious Disorder and Malingering. He emphasised that, in order to gain a full understanding of Mr Ahmic’s mental state, it was important to develop a strong therapeutic relationship which, he said, only occurred over nine months of treatment. He said it was necessary for Mr Ahmic to become comfortable in the relationship. He found, over time, that Mr Ahmic was communicable and reactive. He explained that the failure by Mr Ahmic to talk to doctors could be explained by his avoidance behaviour triggered by the Post-Traumatic Stress Disorder. He did not agree there was any abnormal illness behaviour, as found by other practitioners. He was critical of various aspects of Dr Entwisle’s report, commenting that Mr Entwisle had not obtained a full history, had seen him only once (he was seen again by Dr Entwisle around that time), had been selective about the opinions of other practitioners he adopted, and that it was not possible to conclude a person was exhibiting abnormal illness behaviour on the basis of one assessment.
28 Dr Dharmage disagreed that Mr Ahmic’s exposure to the Bosnian War had resulted in any particular trauma or played a role in his psychological condition. He noted both he and Associate Professor Mazumdar had received histories of nightmares and flashbacks related to the transport accident. He also noted avoidance behaviour, in particular, a reluctance to talk about the trauma of the accident.
29 Mr Ahmic has remained under the care of Dr Ilahee. He is presently in receipt of the Disability Support Pension. He says he now rarely drives. His sleep continues to be poor. He suffers pain in a range of areas, including the shoulders, neck and lower back. He has altered sensation in the arms and leg. He says his mood is extremely low and he has little enjoyment in life. He finds it difficult to concentrate, lacks energy and motivation and feels useless. He is often disorientated and confused, and withdrawn and lonely. He has thought about killing himself.
30 Mr Ahmic takes a range of medications for anxiety and depression, including Avanza, Seroquel and Largactil, together with Procalm for dizziness and headaches. He says he is nervous as a passenger in a car, particularly in bad weather. He avoids people and public places. He prays at a local mosque, but does not interact with other worshippers. His relationship with his wife and children has been significantly affected. He does not participate in his children’s school activities and homework. He becomes upset and overreacts to small things. His wife provides considerable assistance in his personal care. He does not engage in any domestic activities.
31 Mr Ahmic has not worked since the accident and says he would be unable to do any form of work, even on a part-time basis.
32 In two affidavits, Mr Ahmic’s wife confirms the symptoms from which Mr Ahmic is suffering, and she said she and her husband had a good circle of Bosnian friends around the Dandenong area. He was a good father and assisted her in a range of domestic tasks before the accident. She described him as depressed, anxious and angry. She said he displayed a high level of pain in various areas of his body. He was restricted in his ability to look after himself. He could not remember where he had placed his wallet or keys. The couple’s relationship had become strained and he lived “in his own world”.
33 Mrs Ahmic said that although she had not known her husband at the time of the Bosnian War, he did not complain to her of any particular fear related to it and did not say he was overly troubled about his past. He did not avoid talking about the War.
Consultant medical opinions
34 Dr Albert Kaplan, psychiatrist, examined Mr Ahmic in 2012, 2013, 2015 (twice) and in May 2016. He received a description of the accident. At the outset, the description of his involvement in the Bosnian War was modest. He was provided with reports from a range of other practitioners, both physical and psychological. As with many other practitioners, he found it difficult to communicate with Mr Ahmic and most of the history was provided by his wife. He was told of a range of psychological symptoms, avoidance behaviour, anxiety and depression. There were episodes of hypervigilance. Dr Kaplan concluded as follows:
“Mr Ahmic continues to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and his condition has not improved since I last examined him. This condition is related to his chronic pain and he leads a restricted existence, largely vegetating at home.
Mr Ahmic continues to suffer from some features of a Post-Traumatic Stress Disorder including avoidance, heightened arousal, phobic anxiety with regard to driving and anxiety with regard to travelling as a passenger, and panic attacks. He continues to have a heightened awareness of and a preoccupation with potential danger, he is preoccupied with his family’s safety, he is fearful of being involved in another accident, and he feels intensely insecure and generally unsafe. Given the long duration of this condition, his prognosis is likely to be unfavourable and his condition is likely to persist for the foreseeable future.
Mr Ahmic has no capacity for employment as a result of his psychiatric condition. His psychiatric condition has had a major impact upon his social, domestic and recreational activities and is likely to continue to have this effect for the foreseeable future. He is likely to require a continuation of his current treatment as long as he suffers from significant symptoms.”[10]
[10]PCB 142L
35 Mr Ahmic was examined by Dr David Weissman, consultant psychiatrist, on one occasion in 2008. He received a history of general body pain, problems with concentration and memory, and diminished socialisation. Mr Ahmic spoke of the Bosnian War, although in little detail. He claimed that he had not suffered any trauma in the War, and that no family members or friends died in the War. Dr Weissman said his command of English was only fair and he occasionally used an interpreter. He was said to be a very poor and vague historian. He said Mr Ahmic “seemed to exhibit abnormal illness and pain behaviour”.[11] Further, he said “it seems likely to me that the claimant entered the accident with a degree of vulnerability factors”.[12] Further:
“On purely psychiatric grounds alone, the claimant presents with extremely mild primary or direct post-traumatic stress and anxiety symptoms, directly due to the circumstances of the transport accident itself. He also presents with very mild reactive depressive symptoms and signs, as a consequence of the transport accident-related pain and injuries.
Overall, however, these symptoms are insufficient to satisfy the diagnostic criteria for any particular DSM-related psychiatric condition or mental injury.
However, as mentioned, there are a variety of psychological, functional and behavioural features evident in this case including abnormal illness and pain behaviour, pain focus and preoccupation. I also formed the opinion that the claimant does not have a strong determination or motivation to return to the workforce. He may or may not be developing features of a Chronic Pain Syndrome. I am not sure about this. Either way, the behavioural features just mentioned probably have more to do with constitutional and pre-existing factors, and not due to any accident-related psychiatric condition or mental injury.”[13]
[11]DCB 12
[12]DCB14
[13]DCB 14
36 Dr Weissman said there was no accident-related psychiatric incapacity for work. He thought the prognosis should be good. He thought it prudent to re-examine Mr Ahmic in nine months’ time with up-to-date reports from the treating practitioners. This did not occur.
37 I did not find Dr Weismann’s report of significant assistance. It is now many years old and he examined Mr Ahmic on only one occasion. There was no follow-up to his request to re-examine Mr Ahmic.
38 Finally, Dr Timothy Entwisle, psychiatrist, saw Mr Ahmic in 2014 and, again, in September 2015. He provided a number of reports. He received a description of the transport accident and a more extensive description of Mr Ahmic’s involvement in the Bosnian War. He noted Mr Ahmic made little eye contact, spoke gibberish, and relied upon his wife to provide details of his symptoms and history. He described Mr Ahmic as “emotionally removed”. He said there were a number of aspects of abnormal illness behaviours. He said Mr Ahmic was preoccupied, distracted and vague, and had the tendency to “drift off”.[14] He referred regularly to not being able to remember aspects of his life and relevant issues. He described his presentation as “pseudo-dementia”.[15] He said Mr Ahmic was strongly injury focused.
[14]DCB 46G
[15]DCB 46G
39 Dr Entwisle said that Mr Ahmic’s command of English was excellent and sufficient to communicate with Dr Weissman. He noted the presentation was similar to that experienced by other practitioners. He said the presentation could not be explained by the accident. He noted the explanation given in relation to Mr Ahmic’s involvement in the War was in some contrast to the Department of Immigration Case Summary. He said:
“I did not accept Dr Dharmage’s psychiatric diagnosis on the basis that I formed the view that I had not been provided with a true picture or account of the accident at the time that I saw Mr Ahmic. I noted that the clinical picture had changed and grown (escalated over time) with an increasing presentation on Mr Ahmic’s part of an invalided man who developed a severe traumatised response. I did not accept Dr Dharmage’s diagnosis on that basis.
…
I remain of the view that Mr Ahmic’s presentation is not explained by the accident but by non-accident underlying factors which contribute to Mr Ahmic’s presentation which essentially consists of marked abnormal illness behaviours. The alternative diagnoses in Mr Ahmic’s case are:
Factitious disorder
…
Malingering … .”[16]
[16]DCB 34 – 41, 46B
Credibility of the Plaintiff
40 Mr Ruskin, for the Transport Accident Commission, made a significant attack upon Mr Ahmic’s credibility. He said that no medical practitioner had been provided a full and complete history of his involvement in the Bosnian War, as detailed in the Immigration Department Case Summary. Further, he said that although he came to Australia in 1999, until the transport accident in 2007, he had not worked at all save for a short involvement in his wife’s tailoring business in the period leading up to the accident. Nor had he made any attempt to return to work since.
41 Mr Ruskin said much of Mr Ahmic’s evidence was unconvincing, fanciful, even absurd. He was unable to identify what street he lived in, notwithstanding he said he had recently read his affidavits and that they were true and correct. His address was plainly evident on the front page of each affidavit. Mr Ruskin suggested this was manipulative. He said the evidence about why Mr Ahmic left the former Yugoslavia and came to Australia as a refugee was completely unconvincing. Despite regularly claiming not to be able to recall relevant past history, when pressed, he was able to remember those details.
42 Mr Ruskin said the opinions of Doctors Weissman and Entwisle were persuasive, as their findings, in particular as to the dissociative and uncommunicative manner in which Mr Ahmic presented, was essentially the same as the manner in which he gave evidence in Court.
43 Mr Middleton, for the plaintiff, said that it was important to remember Mr Ahmic was a man of limited education, was raised on a farm and entered Australia as a refugee. He accepted that Mr Ahmic’s evidence was confused and difficult to understand, but said that was different from suggesting it was motivated by guile. He said there was no attempt by Mr Ahmic to exaggerate or inflate the effect upon him of the psychological problems he had experienced since the accident. He noted that when Mr Ahmic was cross-examined about the effect of the accident upon him, he minimised the symptoms. In particular, he referred to the following extract:
Q: “Now, your car accident, I said to you, was in 2007. Do you agree with that? About nine years ago?- - -
A: Okay (indistinct).
Q: You do not really know?- - -
A: I don't know, really.
Q: When do you think your car accident was?- - -
A: I don't think nothing about it.
Q: You do not think anything about that? Do you think about the car accident?- - -
A: Yes, sometimes can, how it was. Not when, how it was.
Q: Do you think about that sometimes, or a lot, or what?- - -
A: What what?
Q: Do you think about how the accident was?- - -
A: Yes.
Q: Do you think about that sometimes or many times?- - -
A: Sometimes, very (indistinct words) maybe (indistinct words) I don't know, I can't remember.”[17]
[17]T35L17-31
44 Mr Middleton emphasised to the opinion of Dr Dharmage, that it was very much part of avoidance behaviour that Mr Ahmic was reluctant to speak of the transport accident and its consequences.
45 I found it very difficult to know what to make of the evidence of Mr Ahmic, in particular in cross-examination. At the outset, he responded to questions by suggesting Mr Ruskin ask his wife. He then responded to aspects of his past history, the Bosnian War and details of the accident, by saying that he could not recall. In fact, his response to the majority of questions in cross-examination was that he did not know, or could not recall. He was asked his address on many occasions and said he did not know the street name until it was suggested by Mr Ruskin. Even the simplest of questions was met with a lack of understanding.
46 The issue to be determined is whether this attitude was a pretence designed to convince me of the seriousness of his condition, or a legitimate aspect of his psychological disorder. It is no easy matter to determine which it was.
47 On this issue, I was assisted by the various reports of Dr Dharmage. He explained that it took him a long time to establish a therapeutic relationship and communicate with Mr Ahmic. Absent that, he said it was difficult to gain a real understanding of the effect upon him of his psychological disorder. Further, he explained that his lack of responsiveness, lack of communication and particularly his avoidance of matters related to the accident, were all symptoms of his Post-Traumatic Stress Disorder.
48 There were no major credit issues put to Mr Ahmic, save possibly that his exposure to trauma in the Bosnian War was minimised when compared to documents on his Immigration file. Given the opinion of Dr Dharmage, I would be reluctant to make adverse credit findings against Mr Ahmic and reject his evidence, when the opinion of the psychiatrist who has treated him over a considerable period is that his confusion and lack of responsiveness is very much a part of his disorder. While it is no easy assessment to make, I accept the submission of Mr Middleton that his presentation at Court was not feigned nor manipulated.
49 Further, his wife’s two affidavits provide comprehensive details of his symptoms, and the effect upon his life since the accident.
Conclusions
50 The authorities make it clear that in determining whether Mr Ahmic has suffered a severe psychological injury, and that it is related to the accident, I must take into account all of the evidence, in particular, that of Mr Ahmic, his wife, his treating practitioners and the consultants who have provided opinions. Of course, to a significant extent, the opinions of all of the medical practitioners, whether treating or consultant, are dependent not only upon the accuracy of the history provided, but their acceptance of the genuineness of Mr Ahmic’s presentation.
51 I am satisfied, from the Case Summary of the Department of Immigration that Mr Ahmic’s exposure to trauma in the Bosnian War was more extensive than his evidence, largely his affidavit evidence, would have it. However, there was no suggestion that he suffered any trauma-related symptoms of any sort prior to the accident. I accept the evidence of his wife that while he spoke of the War from time to time, its recollection did not present any particular difficulty for him, or result in any psychological symptoms. I accept that although he was not in employment, he was relatively healthy, from a psychological perspective, up until May 2007.
52 It is clear from the reports of Dr Ilahee, that various symptoms, including forgetfulness, poor concentration and avoidance of being a passenger in a car, became manifest from an early time. This is evident from the referral to the psychologist, Ms Martin, in October 2007.[18] If, as Mr Ruskin would have it, his presentation was feigned, then it was done skilfully, and from an early time.
[18]PCB 48
53 Accepting, as I do, that Mr Ahmic’s presentation in the course of his evidence and to the practitioners that he has seen, is genuine and reflects real symptoms of his disorder rather than guile, manipulation or malingering, the next important issue is which of the psychiatric opinions I accept.
54
The opinion of Dr Weissman is dated and of little assistance. It is then a question of whether I accept the views of Dr Dharmage and Associate Professor Mazumdar, the treating psychiatrists, along with Dr Kaplan, or that of
Dr Entwisle.
55 It is no easy matter to assess varying medical opinions, particularly in the realm of psychiatry, when the witnesses do not present to be cross-examined. Various parts of each of the reports were criticised by respective counsel in the course of their final addresses. I was not convinced that any particular opinion ought be rejected on those grounds.
56
In my view, what is most important in assessing this very difficult case, is that Dr Dharmage has seen Mr Ahmic many times, and over a considerable period. It is not only that he is a treating practitioner, and that he has seen his patient more often than the others, but that it took a very considerable period to establish a strong therapeutic relationship where he was able to understand
Mr Ahmic and communicate with him clearly.
57 I was impressed with Dr Dharmage’s various reports. I am of the view he is in the best position to make an assessment of Mr Ahmic’s psychological state. In his report of October 2015, he was provided with over fifty medical reports from the various physical and psychological practitioners. He obtained an extensive history, not only of the War, but also of the circumstances of the accident. He has been principally responsible for the prescription of medication and been able to observe its effects. He has been involved in psychological counselling with Mr Ahmic. He dismissed, out of hand, the suggestion that part of Mr Ahmic’s presentation reflected abnormal illness behaviour. He persuasively explained that Mr Ahmic’s reluctance to communicate, in particular, about the accident, was a reflection of the trauma suffered and an avoidance of its detail. He noted Mr Ahmic frequently experienced nightmares and flashbacks related to the accident. He was satisfied Mr Ahmic experienced significant symptoms of anxiety and depression, that his relationship with his wife and children was affected, and that he had become emotionally detached. He considered Mr Ahmic incapable of any form of employment.
58 I accept Dr Dharmage’s opinion in all these respects.
59 I am satisfied that the symptoms of Mr Ahmic’s psychological disorder, and the consequences which flow, all achieve the “severe” test as the legislation prescribes. It was not suggested that if I was to accept Mr Ahmic as genuine, and that his symptoms related to the accident, that they would not constitute a “severe” injury.
60 In these circumstances, I will grant leave to issue proceedings at common law, and make consequent orders as to costs.
---
0
0
0