Akl v TAC
[2024] VCC 242
•12 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01667
| MALIK AKL | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 February 2024 | |
DATE OF JUDGMENT: | 12 March 2024 | |
CASE MAY BE CITED AS: | Akl v TAC | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 242 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric injury – impairment consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Taylor v Transport Accident Commission [2022] VSCA 269; Transport Accident Commission v Katanas [2017] HCA 32; Rowe v Transport Accident Commission [2017] VSCA 377; Johns v Oaktech Pty Ltd [2020] VSCA 10; Connelly v Transport Accident Commission [2024] VSCA 20; Popal v Transport Accident Commission [2023] VSCA 222
Judgment: Leave granted to the plaintiff to commence common law proceedings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Hartley KC with Mr D Seeman | Robinson Gill |
| For the Defendant | Ms A Wood | Lander and Rogers |
HIS HONOUR:
Introduction
1Consider a scenario of a young boy hit by a car, badly breaking his leg, with a subsequent surgery to repair the fracture but causing a rotational deformity in his leg. In this scenario, it is likely that the orthopaedic injury would still be easily identifiable if the same person was orthopaedically assessed as a young man, even if there had been other traumatic or life stressors happen to him throughout his adolescence and formative years.
2Then consider a second scenario of a young boy who suffered a psychiatric injury because of a car accident. In this second scenario, it is likely that the psychiatric injury would not be so easily identifiable if the same person was psychiatrically assessed as a young man, if there had been other traumatic or life stressors happen to him throughout his adolescence and formative years.
3The proceeding before the Court falls into the second scenario, although for a claim based on a psychiatric injury.
4The primary issue to be resolved in this proceeding is the identification of any ongoing psychiatric impairment and impairment consequences on a plaintiff who is now a young man but was eight years old when his teenage brother died in a car accident and where he has arguably had other life stressors during his adolescence and formative years.
Background
5The plaintiff in this proceeding, Mr Malik Akl, is now 21 years of age. When he was eight years old, he was with his mother and older sister, when his mother received a phone call that no parent would ever wish to receive, to tell her that the plaintiff’s older brother, Jamil, then aged seventeen, had been killed in a car accident that occurred on 26 March 2011 (“the accident”).
6At the time of the accident, the plaintiff was living with his mother, father and older sister in Perth, Western Australia. Jamil was the plaintiff’s half-brother from his mother’s previous relationship and lived in Melbourne, Victoria before his death.
This proceeding
7The plaintiff claimed that, because of the death of his brother, he had suffered a “serious injury” within the meaning of s93(17)(c) of the Transport Accident Act 1986, being a severe long-term mental or severe long-term behavioural disturbance or disorder.
8The relevant legal principles are well-known and not in dispute. The parties agree that the plaintiff must establish that the transport accident was a cause of his psychiatric injury.[1] Next, he must identify the impairment consequences referable to the identified compensable psychiatric injury, and to establish that such consequences are “serious”, in the sense of “severe”.[2] Also, in an assessment of whether the identified compensable injury is “serious”, it is impermissible to ask if the total condition is “serious” and to then work backwards to determine that the identified injury is “serious” because of the overall condition.[3]
[1]Taylor v Transport Accident Commission [2022] VSCA 269.
[2]Transport Accident Commission v Katanas [2017] HCA 32.
[3] Rowe v Transport Accident Commission [2017] VSCA 377 at [82]-[86].
9Appropriately, the evidence in this proceeding was confined to the medical reports and documents contained in the parties’ Court Books, together with the oral evidence of the plaintiff. I have considered all the evidence, the transcript of the plaintiff’s evidence, as well as the written and oral submissions of the parties.
10Appropriately, the defendant conceded that the plaintiff had suffered a compensable psychiatric injury because of the accident.[4]
[4] Transcript (“T”) 121, Line (“L”) 9-11.
11The defendant disputed that the plaintiff had suffered a “serious injury”. Broadly, the basis of that contention was that the plaintiff had a range of factors (life stressors) that contributed to his ongoing psychological symptoms and substance use disorder, and that the contribution from the accident-related psychiatric injury did not cause a “serious injury”. Therefore, even if he did have a “severe” psychiatric impairment, that was unrelated to the accident.
12Alternatively, the defendant submitted that, overall, the plaintiff had a range of retained capacities such that he simply did not have a “severe” psychiatric condition, even if the accident continued to be a cause of any psychiatric impairment.
Credit
13The defendant submitted that the plaintiff, in several regards, was an unreliable witness, but it did not go so far to say that he was a dishonest witness. In the sense that it attacked his credit, it was a more subtle attack to dispute the reliability of his evidence that his psychiatric symptoms and substance use disorder were because of the accident.
14My assessment of the plaintiff in the witness box was of a quiet and reserved young man. He made appropriate concessions and attempted to answer questions as best he could, bearing in mind that he was only eight years of age when his brother died, and it is therefore no surprise that his recollection about some events might be vague or unreliable.
15As has been said many times, in assessing the “seriousness” of an injury, the credit of the plaintiff is often a critical factor.[5] In this proceeding, I consider the plaintiff broadly to be a credible witness. However, I also accept that some of his evidence needs to be considered carefully by reference to the objective evidence, where his memory and insight of events during his childhood may be unreliable. But that is not a credit point.
[5] Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76].
16This proceeding is less about credit and more about identifying the impairment consequences from the accepted psychiatric injury, as opposed to impairment consequences possibly caused by other stressful events that have occurred to the plaintiff.
Matters not in dispute
17There is no dispute that the accident occurred, or that it resulted in Jamil’s death. There is no dispute that the plaintiff attended Jamil’s funeral. There is no dispute that the plaintiff suffered a psychiatric/psychological injury because of his reaction to his brother’s death.
18Equally, there is no dispute that at least from grade five the plaintiff’s concentration, effort and ability at school began to deteriorate, or that he went on to develop a substantial substance abuse (marijuana) disorder that commenced from when he was about 14 years of age.
19Further, there is no real dispute that the plaintiff’s parents had an at times unhappy relationship.
20The plaintiff’s father had moved to live in Perth some time before the accident. The plaintiff, his mother and older sister had only moved to Perth several weeks before the accident, as part of an attempt by his parents to reconcile. There was domestic abuse between his parents, although not necessarily physical abuse. The plaintiff had a fractured relationship with his father and said he had no real memory of his father before he was eight years old.[6] He has had limited contact with his father since he moved back to Melbourne during year eight.
[6] T17, L24.
21There is no dispute that the plaintiff changed primary schools several times in part due to the move to Perth, but also when he returned to Melbourne partway through year eight, with his mother and siblings,[7] after his parents finally separated. He resumed year eight in Hoppers Crossing but did not do well at school. He left after year 11 and completed a VCAL course. He has completed two pre-apprenticeship electrical courses and still hopes to get an electrical apprenticeship.
[7] His youngest brother was born in 2014.
The plaintiff’s evidence
22The plaintiff swore three affidavits and was cross-examined as to the contents of those affidavits and what he said to the doctors. In my opinion, he emerged from cross-examination unscathed, and broadly, I accept the evidence he gave in his affidavits and in the witness box.
23Regarding his parents’ relationship and his brother’s death, in an affidavit sworn 15 October 2019,[8] he said as follows:
[8] Amended Plaintiff’s Court Book (“APCB”) 10.
“3.When Jamil died on 26 March 2011, my sister and I had lived with our mother in Perth for 2 months. Jamil stayed in Melbourne, but was due to relocate to Perth soon after his death.
4.My mother and father had verbal arguments prior to and after Jamil’s death, which was a source of stress, but other than that I had a regular uneventful and happy childhood before Jamil died.
5.We returned to Melbourne in 2016.
6.Jamil and I were close. He was a father figure to me. He looked after me and my sister and played with us. When our mum was not home because she was working he would look after us at home and sometimes make us food. He would take us to the shops and the park. I was 8 years old when he died.
7.I don’t recall much of my younger years but I recall being happy.
8.I am currently in Year 11 and I don’t really enjoy school because I find it difficult to concentrate. I believe I have failed Year 11 and I am looking at enrolling into VCAL to complete my high schooling.
9.I am looking at becoming an electrician.
10.I had hoped to pass Year 12 and get into computer programming. This doesn’t seem possible now.
11.I think about Jamil a lot and I do believe that I am distracted by it.
12.I can’t get away from his death. I am constantly reminded of it by people, photos, locations, family events and comments. The only way I think I will ever be able to move on is to leave the Country [sic] but I don’t think I could do this.
13.On the day of Jamil’s death I was in Perth. I was in the car with my mother and sister. My mum got a call from a friend in Melbourne and she completely changed. I knew something was wrong and she was crying terribly. I had a feeling something happened to Jamil.
14.I sometimes feel angry for Jamil’s loss. I internalize my feelings. I have never considered seeing a counsellor or psychologist.”[9]
[9]APCB 10-11.
24Further on in the first affidavit, he said:
“17.It is in my culture to view the body. When I was younger after Jamil’s death I had great difficulty falling asleep thinking about him and picturing his face when he was dead. I continue to have poor sleep. I sometimes wake up at night due to weird dreams. This happens two or three times per week.
18.In order to help me sleep I smoke marijuana. If I don’t smoke I take melatonin tablets to help me fall asleep.
19.I drink alcohol with friends. I drink too much, to the extent that I don’t recall what happened the next day. I do this less frequently than I used to.
20.I do this with friends, it is social, but I also enjoy not thinking about Jamil.
21.How I feel has affected my friendships. My interactions are often blunt and forced. I would rather be at home and it does not bother me if I am excluded.
22.I believe that I avoid caring too much about friendships because I fear that they will die.
23.I am friends with some of Jamil’s friends and this makes memories of him come up.
24.I cannot be bothered meeting new people.
25.I smoke marijuana to excess as well. I have been using marijuana for the same period of time as alcohol. I don’t know why I do this, but it does help with negative thoughts, makes me feel happy and helps me sleep. I smoke about 3-5 times per week. Sometimes more frequently than that.
26.When I don’t smoke or drink I have difficulty getting to sleep and I have racing thoughts and think about Jamil and the aftermath of his death.
27.I believe my academic achievement has been compromised due to Jamil’s death. I believe that I have lost motivation and struggle to focus, even after all these years.
28.I feel anxious as a passenger in a car because of Jamil’s death. I am old enough to get my learners but have a fear about driving with passengers in the car.
29.We went to Melbourne for the funeral and I saw Jamil’s body and his face was uncovered, I remember his dead face.
30.Since Jamil died I have had suicidal thoughts, but never plans. I most recently had such thoughts at the end of last year.
31.I get flashbacks of Jamil’s body.”[10]
[10]APCB 12-13.
25In a further affidavit sworn 12 October 2022,[11] the plaintiff said:
[11]APCB 16.
“4.I decided to do VCAL three quarters into Year 11 because I was doing poorly at school. This was in part due to my psychiatric reaction to Jamil’s death, although I was never academic.
5.My major problem since Jamil’s death with my schooling was concentration problems. I struggled after his death to focus in class and focus on what I was reading. As I said, whilst I was never particularly academic, I didn’t have such problems prior to his death.
6.I commenced an electrician course in 2019 when I was in Year 11. I finished two years of the course. The course was at Geelong Tech. It was a certificate I and II.
7.Certificate III is more practical, and I need to do an apprenticeship to progress to a Certificate III.
8.I have not applied for an apprenticeship yet as I do not have my P-plates and I generally nervous about obtaining my license and working.
9.I am booked in for my p plates test on Friday 14 October. I have previously not had the motivation and courage to apply for my p-plates. I am anxious about what will happen.
10.This is a consequence of my anxiety around driving and being driven since Jamil’s death.
11.I am a very nervous driver and an even more nervous passenger.
12.I hate driving and I am nervous about getting my P plates.
13.When I am a passenger I try to zone out a listen to music.
14.I try to avoid driving or being driven as much as possible.
15.I have not worked in the last 2 years except for a few painting jobs for my uncle who is a self-employed labourer. I have assisted him on approximately 10 jobs.
16.More recently I secured a part time job at Vodaphone doing customer service in a store at Waurn Ponds Shopping Centre. I have worked one day and I am currently only doing training. I don’t know how this job will pan out particularly as I don’t drive and it takes me 1.5 to 2 hours of travel each way.
17.In 2019 I was diagnosed with ADHD and prescribed Ritalin. I did not like taking Ritalin and I am not sure whether I have ADHD at all.
18.The consequences deposed to in my previous affidavit continue to largely apply today.
19.I continue to smoke marijuana from time to time – on average about once a week, sometimes more and sometimes less.
20.I feel depressed most of the time. I feel anxious on a daily basis. I get panic attacks where my heart races and sweat and feel extreme anxiety. I get panic attacks up to 4 times per week. These attacks can happen multiple times a day.
21.My sleep is terrible at the moment. I struggle to fall asleep most nights. I can lay in bed for up to three hours struggling to sleep. This happens about 4 times per week.
22.I take Valarian root or L-Theanine that helps me sleep.
23.I wake up at night about 2-3 times per night.
24.I have nightmares. The nightmares are about Jamil about once a fortnight. I have nightmares about three times per week.
25.I get flashbacks 4 times per week. The flashback are of Jamil’s body.”[12]
[sic]
[12]APCB 16-18.
26Then, in a supplementary affidavit sworn 19 January 2024,[13] he said:
[13]APCB 20.
“3. I was 8 when my older half-brother died.
4.I was at the funeral. I saw my brothers [sic] body. I remember his face was bruised, purple, cut up and pale.
5.I wanted to believe he was on holidays before that. I don’t think I accepted he was dead. When I was at the funeral I was stunned.
6.I then had ongoing feelings of sadness and loss. This hasn’t changed.
7.I am single.
8.I continue to live with my mother, my sister and brother.
9.After Jamil’s death my grades eventually dropped from Grade 6 from what I recall was Bs and Cs, to Ds and Es. My reports reveal that I was ‘at standard’ before his death.
10.The death affected my focus, patience and mood. I became an angry person.
11.I recall times when my teachers told my co-students about Jamil’s death and at various times I was the victim of comments at school. I recall lashing out in response multiple times over the years.
12.I relocated to Melbourne when I was in Year 8.
13.My schoolwork deteriorated to the point that I was barely studying in Year 10. I tried my best, but I was anxious and couldn’t concentrate.
14.I did very badly in English in Year 11 and was told to leave or do VCAL.
15.I did VCAL and finished it.
16.I commenced using Cannabis when I was 14 when I was struggling to sleep. I was having nightmares about Jamil’s death and cannabis helped this.
17.I have used other illicit drugs. I was surprised to pass Year 12.”[14]
[14]APCB 20-21.
27The defendant challenged the plaintiff as to the contents of his affidavits, some of what he had said to the doctors and some of what he had told treating and medico-legal examiners. There was a real contest as to when and why his concentration problems began and what caused those problems, as well as why he has used marijuana.
28The plaintiff relied on an affidavit from his mother Ms Lucy Arjan, sworn 19 February 2024.[15] She described her son before and after the accident as follows:
[15] APCB 326.
“7. Before the accident Malik was a bubbly, happy, bright, talkative normal kid who interacted with others and his siblings. He did well at school. I had no concerns. Since the accident Malik’s performance at school progressively deteriorated. He changed to being very withdrawn, introverted, and quiet. It’s like he lost his voice.
8.When the accident first happened, I was struggling with my own mental health issues. I was told by the school that they would monitor Malik but I was in my own terrible situation and not able to help Malik as I would have liked to. The school did offer to provide Malik with counselling but when I asked them to arrange it, they told me it was not available. I did try to source counselling for Malik myself, but he refused to attend and said that he did not want to talk about it.
9.Malik was very close to Jamil. He was like a father figure to him and main male role model in his life. Jamil would take care of his siblings when I was at work, take them places like the park, shopping and cook with him.
10.It is part of our religion to view the body. When Malik went in to see the body, he held Jamil’s hand and Malik went completely white and would not let go of Jamil’s hand. I have never seen a child so colourless and blank like Malik was. Malik would not talk or engage with anybody. I think the shock was really cemented at that time. This is when Malik really seemed to start hiding and internalizing his feelings.
11.I recall that Malik’s grades really dropped off after the accident. I believe I have all of my children’s school reports in storage, but I have been unable to find Malik’s 2009 school report.
12.While he was at school, I recall Malik lashing out at school. Some examples of this include being called by Malik’s teacher at Australian Islamic College to discuss Malik having out bursts in class and being aggressive to other children. He also broke a window at Damla College which the school spoke to me about and I had to pay for the repairs. Malik also avoid attending some classes at Hoppers Crossing Secondary College where Jamil went to school. A couple of teachers remembered Jamil and would try to talk to Malik about him.
13.Malik does not like talking about Jamil’s accident and death. I am not allowed to talk about Jamil and when I try to, Malik tells me to stop. I am not allowed to have pictures of Jamil in the house. I have a memorial board that I had to take down and move to where he could not see it. Malik has some parts of the car and other things that belonged to Jamil in his room.
14.I worry that Malik is suicidal but when I try to talk to Malik he does not readily engage in conversation. He often walks away when I try to have a conversation with him.
15.Over the years I have wanted Malik to see a psychologist. I would mention seeing my psychologist or another one with him, but he would be non-committal or say no, I don’t need one, and I did not want to force him to talk to someone.
16.Malik is withdrawn and isolated. If he is invited to a party, he occasionally goes but does not stay for very long. He does not seem to find enjoyment in socializing. He spends most of his day alone.
17.I am worried about Malik’s wellbeing and future. I am pretty sure that Malik is smoking marijuana. He has also done some silly risk-taking things. I have discouraged him from taking drugs and doing silly things in the past. But I am very scared to continually raise it. I don’t want to lose another child and I fear by pushing him I will. Malik just shuts off.
18.Malik struggles to work. He has high anxiety. He goes into what I describe as stress mode or panic attack. He finds it hard to socialise.
19. Malik struggles to sleep.
20.Malik did not want to get his license [sic]. He eventually did, but he avoids driving. I think this causes him flashbacks. When he does drive, he worries about having accidents.”[16]
[16]APCB 328-330.
29The defendant was critical of Ms Arjan’s evidence. To the extent she described the plaintiff’s reaction to seeing his brother’s body at the funeral, the defendant highlighted how that differed from what the plaintiff had said about the funeral.
30I consider that any inconsistency between Ms Arjan’s evidence and her son’s evidence is explained by the fact that the plaintiff was only eight years of age at the date of the accident and understandably has a vague recall of some events. I also consider that any further inconsistency is explained by her perception of events, which may not necessarily coincide with her son’s perception of things.
31Overall, I am comfortable that I can accept the evidence of the plaintiff’s mother, which is compelling as to what she observed of the plaintiff when he saw his brother’s body at the funeral. Her evidence puts in context the effect that the death of his brother had on the plaintiff as a young boy, and for the psychological problems that he has had since then.
School reports
32Returning to a couple of key issues in cross-examination, and commencing with the plaintiff’s declining school performance, the defendant challenged the plaintiff as to the cause of his problems at school from about grade four or five.
33The plaintiff was cross-examined about the fact that he had changed schools several times. At the start of grade three in 2011, he transferred to the Australian Islamic College in Perth, where completed grades three and four, before he changed to Damla College for grade five, after he moved house.[17]
[17]T 21, L 7‑8.
34The plaintiff was cross-examined about his grade three, semester two report and the fact that it described a good report and that his attitude, behaviour and effort were all good. The report described him as enthusiastic about learning and as a friendly child. It was then put to him that that was an accurate summary of him at the end of grade three and he said: “if the documents are saying so, then possibly, yeah”.[18]
[18]T 24, L 4‑5.
35He was then cross-examined about the fact that he had told doctors that his concentration problems commenced since grade five. When asked whether that refreshed his memory in terms of when issues with concentration at school commenced, he said “no”.[19] The defendant noted that the grade four report was not available.
[19]T 24, L 26.
36The plaintiff remained at Damla College for grades five, six, seven and part of year eight, until he relocated back to Victoria. He was cross-examined about travelling back to Victoria to get away from his father. In the end, his evidence can be summarised by his answer that “we relocated back to Melbourne because Mum wanted to come back. That was it”.[20]
[20]T 30, L 11-13.
37The plaintiff’s youngest brother was born in 2014 while his parents were domiciled together in Perth. He attended Damla College for years five, six, seven and part of eight. This tends to infer that was a period of relative stability in his home life, although that clearly came to an end when his mother moved him and his siblings away from their father and back to Melbourne.
38The tendered school reports paint a picture of a relatively happy young boy in 2011, who went on to develop concentration problems and difficulties at school in subsequent years. The timing of the commencement of the problems at school is difficult to identify with precision, save that they came on sometime after the accident. The plaintiff gave evidence that he believed his problems commenced before grade five. How soon before grade five, if at all, is hard to say based on the objective evidence and where his boyhood memory may not be reliable, although his clear belief was that the decline was related to the death of his brother.
39Ultimately, not much turns on the exact date or period when the plaintiff commenced to have difficulties at school. The question is what caused those difficulties.
40On a consideration of the whole of the evidence, including the medical evidence which I shall discuss in due course, I accept the plaintiff’s evidence that his problems at school were because of his psychological reaction to his brother’s death and not because of other possibly stressful events in his life, such as his parents’ separation, or moving schools.
41It is notable that, even on the defendant’s analysis, the plaintiff’s problems at school commenced at a time of relative stability in his life. There is no evidentiary basis to conclude that the plaintiff was exposed to traumatic events at home, or by moving schools, that would inherently explain his decline in his school performance.
42The defendant effectively contended that the plaintiff’s life between the ages of 8 and 14 was significantly impacted by changing schools and domestic abuse between his parents, so that it is now the main cause of his psychiatric impairment. I do not accept that contention, based on the facts as I find them. In my view, that contention is based on a false assumption, not made out by the evidence, as to the impact of changing schools and the level of exposure to domestic abuse.
43In that regard, the defendant made a forensic decision not to cross examine the plaintiff’s mother about what, if any, exposure the plaintiff had to domestic abuse, and it did not impugn his affidavit or oral evidence about what he recalled about his parents’ time together.
Substance use disorder
44The plaintiff’s evidence and the medical evidence supports a conclusion that he has a substance use disorder. The uncontradicted evidence is that he commenced using marijuana from about 14 years of age and has continued to be a regular user of it. All the medico-legal psychiatrists agree that the plaintiff has a substance use disorder.
45The question is whether that substance use disorder is related to his compensable psychological injury or is simply an unrelated disorder.
46He was cross-examined about his marijuana use. He gave candid evidence of when he commenced using marijuana, how he sources it, and how often he uses it. He accepted that he has been a regular user of cannabis since age 14.[21]
[21]T 31, L 9.
47The plaintiff was cross-examined about the fact that his cannabis use commenced in year eight, after he had relocated back to Melbourne. He said his use had increased to become a way to help him sleep.[22] The plaintiff agreed that the cannabis had a relaxing, sleepy type effect on him. He said, “it’s meant to be a sedative”.[23] He was cross-examined about the effect that the cannabis had on his anxiety, and he said that smoking it was not the problem, but coming off the cannabis does cause his anxiety to come back up.[24]
[22]T 33, L 22.
[23]T 40, L 2.
[24]T 42, L 3.
48The plaintiff was cross-examined about a friend who he now spends time with, including currently staying at the friend’s house several nights a week, while his mother is renovating the family home.[25] The thrust of the cross-examination was to suggest that it was a lifestyle decision to smoke marijuana, which was then impacting the plaintiff’s motivation and causing him to be lethargic and unable to look for work.
[25]T 62, L 30 – T 63, L 5.
49The plaintiff’s use of marijuana is possibly multi-factorial and may in part relate to the peer groups that he has associated with and the dislocation he suffered after returning to Victoria. But he gave compelling evidence about his use of marijuana to assist with sleep and managing his anxiety, where he also gave compelling evidence about ongoing flashbacks and intrusive thoughts about his deceased brother.
50I accept his evidence that he commenced using marijuana as a means of relieving the ongoing intrusive thoughts and symptoms associated with his brother’s death.
51In the context of the medical evidence, I consider that the plaintiff’s use of cannabis, and in particular his use of up to 3 grams of cannabis per day, is substantially related to the accepted compensable injury from the accident.
What is retained
52The plaintiff was cross-examined broadly about what might crudely be called his retained ability for day-to-day activity. During cross-examination, he confirmed that he has obtained a driver’s licence, that he owns a car and is a competent driver. He has sourced and done some work from time to time including with his uncle, at a window factory and with Vodafone. He has some friends and a social life. He has travelled on at least one occasion back to Perth and has been able to complete pre-apprenticeship certificates and apply for electrical apprenticeships.
53He was also cross-examined about his attempts to obtain an apprenticeship as an electrician. He said that he had handed in his certificates and resume to try and obtain employment as part of the Victorian Government’s Big Build,[26] and that if he was offered an apprenticeship, he would try it.[27]
[26]T 69, L 10-11.
[27]T 69, L 27.
54He was also cross-examined about his interest in natural supplements and his ability to engage in that interest. He readily accepted that was something that he does and has an interest in.
55The thrust of the cross-examination was to reinforce that in a consideration of whether the plaintiff has a “very considerable” impairment consequence, it is relevant to look at not only what has been lost but what has been retained.[28]
[28] Connelly v Transport Accident Commission [2024] VSCA 20 at [49].
The medical evidence from treating practitioners
56The medical evidence from treating practitioners is limited. It was confined to extracts from relevant clinical records from general practitioner clinics that the plaintiff has attended, correspondence from a treating paediatrician, a report from a treating psychologist, Ms Lakkis, and her clinical records.
57There is no report from a treating general practitioner. The defendant submitted that there is an evidentiary gap and an adverse inference that can be drawn by the lack of a general practitioner report.
58I do not accept that submission. I have available clinical records. While care must be exercised in the use that can be made of clinical records,[29] the evidence in those records is consistent with the evidence from the plaintiff and his mother.
[29] Popal v Transport Accident Commission [2023] VSCA 222 at [87].
59The plaintiff has not had much by way of treatment, explained by his young age at the time of the accident, but also by his poignant evidence that he avoided seeking psychological or psychiatric treatment because it required him to recall and revisit the death of his brother.
60The lack of treatment mitigates against drawing an adverse inference from the failure to provide a report from a general practitioner. The reality is that the plaintiff has not had a regular treating general practitioner for his accident-related psychiatric condition.
Clinical records
61Turning to the relevant evidence in the clinical records, on 15 April 2011 the plaintiff was seen by a Dr Hamza Amira who recorded “brother killed in MVA mum hopes malik is seen by a psychologist”.[30]
[30] Defendant’s Court Book (“DCB”) 47.
62Next, he was seen by a Dr Navdeep Kaur at the Westgate Medical Centre, Hoppers Crossing, on 30 January 2017, who recorded “BIB mum for vcare plan as she needs to see psychologist to come out of the trauma her brother wa skilled [sic] in car accident”.[31]
[31] DCB 61.
63He was then seen by Dr Ata Eqbal at the same clinic, with his mother, on 13 February 2018, who recorded “also says mhc plan says tac case”.[32]
[32] DCB 59.
64Then, on 23 March 2018, Dr Goran Medvedovic, also at the Westgate Medical Clinic, recorded “15yo male brought in by mum requests referral to psychologist occasional anxiety particularly at school…Brother died a few years ago in car crash gets emotional intermittently especially around anniversary times”.[33]
[33] DCB 58.
65Better Access Mental Health Care Plans were prepared by Dr Kaur and referrals were made to a psychologist in March 2018,[34] but the plaintiff (or his mother) did not follow through with those referrals.
[34] DCB 62-67.
66Next, on 5 February 2019, the plaintiff presented again at the Westgate Medical Centre, this time to Dr Dhanu Giritharan, who recorded behaviour problem and “mother requesting referral for paediatrician for diagnosis of ADHD – concerns regarding inability to concentrate at school since year 5 – history of PTSD”.[35]
[35] DCB 57.
67Prior to 5 February 2019, the clinical notes record infrequent attendances with his mother, where psychological treatment was recommended, but no treatment was sought or obtained.
68The plaintiff was questioned about the lack of treatment. About the referral by Dr Kaur in March 2018, he said, “I wouldn’t have wanted to go because I wasn’t ready to face it yet”.[36]
[36] T 53, L 21-22.
69The evidence in the clinical records is that the plaintiff attended clinics at times with his mum, where referrals to psychologists were discussed, but not acted on. But I do not consider the lack of treatment to work against him, or that his lack of treatment has been unreasonable. Obviously, when he was a boy, he needed adult assistance to access treatment. As he grew older, I accept he did not want treatment because he did not want to relive the experience of his brother’s death.
70The more recent attendance on Ms Jacqueline Lakkis, psychologist, was after referral from a doctor at the Westgate Medical Centre[37] as part of a mental health care plan. He saw her for six visits under that plan and despite going back to the doctor and getting another plan, he has not returned to Ms Lakkis for further treatment.[38] But that is also consistent with his reluctance to engage in counselling because it causes him to relive a particularly distressing event. There is also no evidence that the referring doctor actually treated the plaintiff for any mental health concern.
[37] T 60, L 1-2.
[38] T 59, L 11-16.
Dr Tony Ranawake
71Returning to the referral to a paediatrician in early 2019, by letter dated 5 February 2019, Dr Giritharan referred the plaintiff to Dr Tony Ranawake, paediatrician. The referral letter described poor concentration since grade five, “concerns regarding ?ADHD” and a past history of PTSD.[39]
[39] APCB 36.
72Dr Ranawake then met with the plaintiff and his mother and wrote back to Dr Giritharan on 7 March 2019.[40] That letter set out a range of presenting long-standing issues, including being distracted at school, restlessness and impulsive behaviour. Dr Ranawake said, “[a]s I have mentioned in his brother’s letter Malik has a history of exposure to parental domestic violence and also worried about his brother accidental death but Malik do not think that he has post traumatic stress [sic]”.[41] Dr Ranawake noted a family history of ADHD and learning disorders and said, “I have discussed that he also needs to see a psychologist or Headspace in Werribee to see whether he needs counselling to overcome any worries associated with his brothers’ [sic] demise”.[42]
[40] APCB 38.
[41] Ibid.
[42] Ibid.
73The plaintiff was reviewed by Dr Ranawake on 3 May 2019,[43] after he had commenced the ADHD medication, Ritalin, which was said to be aimed at improving his concentration and focus at school. Dr Ranawake wrote back to the general practitioner and said that the plaintiff acknowledged that he was “more aware needs [sic] for staying focused and also completed his home work daily which is an improvement”.[44] The plan was to review him in December 2019,[45] but that did not happen.
[43] APCB 37.
[44] Ibid.
[45]Ibid.
74The plaintiff was cross-examined about the referral to Dr Ranawake as part of a contest about whether it was an ADHD condition that had impacted his schooling and not the accident. He said he recalled being diagnosed with ADHD around March 2019.[46] He went to the paediatrician because of problems with concentration at school and to explore the possibility of an ADHD diagnosis.[47]
[46] T 42, L 25-29.
[47] T 43, L 1-10.
75The plaintiff said he took the ADHD medication for the rest of year 11 up to the last term, and then stopped when he moved schools, before starting it again so he could complete his schoolwork. He said he believed it was helping him with work.[48]
[48]T 44, L 5.
76He was cross-examined about the initial history recorded by Dr Ranawake, including that, as at March 2019, he was sleeping well, with which he disagreed.[49] In response, he was asked whether the doctor had got it wrong where he recorded he was sleeping well, and he said “I did what I had to do to get the medication”.[50] When asked to elaborate as to what that meant, he said as follows:
[49]T 46, L 21.
[50]T 46, L 22-24.
Q:“What does that mean?---
A:Um, by telling the doctor that I’m doing fine. ’Cause I’ve heard things about how to get prescribed Ritalin and I thought there was a chance that it would help me with year 11, so I took my chances and went forth with saying things like that.
Q:Sorry. I just want to be clear about this. So you told the doctor what you thought the doctor wanted to hear or what would get you the result you wanted, which was the prescription. Is that right?---
A:I said what I said to make sure that he didn’t dismiss me from having it.
Q:He didn’t dismiss you from having what?---
A:The prescription.
Q:All right. So I think your words were that you said what you ‘had to say’ to get the prescription. Is that right?---
A:Yes.
Q:So when you went to see this doctor, was it your goal to get prescribed ADHD medication? Is that right?---
A:Yes.
Q:So you thought, in your mind, about what were the right answers to achieve that result. Is that right?---
A:Yes.
Q:And you gave those deliberate answers to ensure that you got the result you were looking for. Is that how I understand it?---
A:Yep.”[51]
[51]T 46, L 26 – T 47, L 15.
77The plaintiff went on to explain that he had gathered that he had bad concentration, and he figured Ritalin would help him. He was asked whether he had a good understanding of his problem with concentration when he saw Dr Ranawake, and he said:
“It wasn’t a good understanding. My – I did suffer from flashbacks during school. So it would really, like, distract me from my work. So my concentration wasn’t good to begin with, so I figured Ritalin would help me.”[52]
[52]T 48, L 26-30.
78Regarding his concentration, in re‑examination the plaintiff said he started developing concentration problems around grade four or grade three, which he described as “distraction from the whole incident”.[53] He said his capacity to concentrate had not improved over the years. He was re‑examined about his use of Ritalin and how he understood it might help with his concentration. He said he obtained that information from the internet.[54] He was asked whether Ritalin made any difference to his capacity to concentrate, and said:
A:“It helped me stay more alert, but it did make me dwell a bit on my flashbacks and whatnot.
Q:So it gave something and it took something away. Is that what you’re saying?---
A:Yeah.
Q:So what was the reason that you stopped taking it?---
A:It was too overwhelming, ’cause I kept getting flashbacks. I couldn’t sleep and – like, I couldn’t sleep prior to this, but this would keep me up ’til, like, five or six. And it was – it was just all – it was just – yeah. Flashbacks.”[55]
[53]T 76, L 20-21.
[54]T 77, L 4.
[55]T 77, L 16-25.
Jacqueline Lakkis
79Jacqueline Lakkis is a psychologist who has treated the plaintiff and provided a report dated 9 November 2023.[56]
[56] APCB 26.
80Ms Lakkis first assessed the plaintiff on 28 March 2023 at the referral of Dr Arash Samadi and saw him for six visits through until 18 July 2023. It appears that she saw the plaintiff one further time to prepare her report.
81Ms Lakkis obtained a history from the plaintiff and set out the symptoms, treatment and progress, together with her mental-state examination, before setting out her summary, assessment and diagnosis. She described the plaintiff as continuing to experience chronic grief and trauma symptoms, and mental health issues which had significantly affected his daily life and psychological wellbeing as a result of his brother’s death.[57]
[57]APCB 30.
82Ms Lakkis was then asked a series of questions, which she answered as follows:
“1. Which of the injuries were caused or aggravated by the subject accident (note that this accident need not be the only cause).
[The plaintiff] did not report any previous diagnosed psychiatric or psychological conditions prior to the death of his brother Jamil on 26/03/2011. [The plaintiff] also denied any family history of psychiatric or psychological conditions prior to his brother’s death. Therefore, based on [The plaintiff’s] psychological presentation, in my clinical opinion, his psychiatric symptoms which are consistent with a diagnosis of Prolonged Grief Disorder and a secondary diagnosis of Major Depressive Disorder are the direct result of the death of his brother in the MVA on 26/03/2011.
2. Which of the injuries were caused or aggravated by treatment or medication related to injuries sustained in the subject accident (note that treatment need not be the only cause).
In my clinical opinion, [the plaintiff] developed mental health injuries as a direct result of his brothers death. It is important to note that the therapy he received did not exacerbate or worsen these mental health injuries. The treatment provided was aimed at addressing and alleviating the existing issues, rather than contributing to their aggravation.
3. The nature and extent of [the plaintiff’s] injuries.
[The plaintiff] has experienced profound and enduring consequences stemming from his brother’s death in a MVA when [the plaintiff] was just 8-years-old. [The plaintiff] experienced the onset of significant trauma symptoms, mental health issues, and behavioral challenges which profoundly disrupted his daily life and negatively impacted his psychological well-being. [The plaintiff] continues to struggle with ongoing physical and mental health struggles, emphasizing the pervasive adverse effects of his brother’s death on every aspect of his life.
His reported symptoms encompass intense grief, including persistent yearning, feelings of emptiness and loneliness, detachment from others, impaired functioning across educational, social, and occupational domains, as well as depressive symptoms such as constant sadness, disrupted sleep patterns, loss of interest, anhedonia, feelings of worthlessness, and poor appetite. Additionally, [The plaintiff’s] struggles led to an ADHD diagnosis, contributing to substantial challenges in his educational journey, culminating in the abandonment of his pursuit of a Certificate in Electrotechnology.
Furthermore, [the plaintiff] faces complexities related to substance use, relying on marijuana to alleviate sleep difficulties, creating a dual dilemma due to its illegality and potential impact on employment prospects, particularly in workplaces with drug testing policies. These intertwined challenges intensify his concerns about the practicality of securing and maintaining employment, reflecting the multifaceted nature and profound extent of [the plaintiff’s] injuries.
For a more thorough understanding of the nature and extent of [the plaintiff’s] injuries, please consult the section titled ‘Symptoms, Treatment, and Progress’ in the report for comprehensive details.
4. The treatment prescribed, his progress and your prognosis.
The treatment prescribed for [the plaintiff] involved counselling sessions aimed at enhancing his psychological well-being, coping mechanisms for grief, trauma, and depression, as well as developing skills for emotional regulation, sleep hygiene improvement, stress management, mindfulness, and relaxation. The overarching goal was to enhance the overall quality of his life.
While [the plaintiff] demonstrated positive engagement in the counselling process, a notable obstacle emerged concerning his ability to address the profound grief associated with his brother’s death and its subsequent impact on his mental health. Regrettably, this challenge resulted in his avoidance of ongoing counselling. The difficulty in confronting and processing this specific aspect of his experience represents a significant barrier to progress within the therapeutic intervention and his overall recovery.
Considering that [the plaintiff] is grappling with persistently severe psychiatric symptoms stemming from the loss of his brother, which have notably diminished his overall quality of life, daily functioning, and psychological well-being, my assessment leans towards a less optimistic prognosis for his psychological recovery. This conclusion is drawn from the ongoing and chronically severe nature of his grief and depressive symptoms, which appear to pose considerable challenges to his psychological recovery.
5. Whether [the plaintiff’s] condition is likely to deteriorate or improve to any significant extent in the future.
As previously mentioned, considering [the plaintiff’s] persistent and chronically severe psychiatric symptoms arising from the death of his brother, the prognosis for his psychological recovery is poor. The gravity of his grief and depressive symptoms, coupled with his decision to discontinue counselling, points toward a diminished likelihood of significant improvement. In fact, the absence of ongoing psychological treatment raises concerns about the potential for further deterioration in both his psychological well-being and daily functioning over time.
6. Whether the injury has stabilised or substantially stabilised. Based upon [the plaintiff’s] history, education, pain levels, medication and nature of injury, does he have a realistic capacity for any employment? Please advise what restrictions, if any, you would recommend for [the plaintiff] for employment purposes (e.g., lifting, sitting, standing, walking restrictions).
[The plaintiff] was engaged in counselling with the writer between 28/03/2023 and 18/07/2023. During that time, there was no significant improvement in his experience of grief, trauma and depressive symptoms and his overall psychological functioning. [The plaintiff] subsequently ceased counselling due to his inability to cope with the profound grief associated with his brother’s death and its subsequent impact on his mental health functioning. Given this, it is challenging to assert that his injury has stabilised or substantially stabilised. However, in my clinical opinion, [the plaintiff’s] severe psychiatric condition is unlikely to improve and without psychological treatment may become permanent.
Furthermore, taking into account [the plaintiff’s] physical and mental health issues, in addition to his challenges in education, his lack of work history, his reliance on marijuana for sleep, and his inability to fully engage in the therapeutic process, I am of the opinion that he currently lacks a realistic capacity for any form of employment.
To re-iterate, the severity of his chronic psychiatric symptoms, the impact on his daily functioning, and his cessation of counselling all contribute to this assessment.
7. Have [the plaintiff’s] injuries compromised any of his personal and/or recreational pursuits to any significant extent?
Yes, [the plaintiff’s] injuries, encompassing chronic grief, severe psychiatric symptoms, and challenges in education and work history, have undeniably compromised both his existing and potential personal and recreational pursuits to a significant extent.
These symptoms have disrupted his engagement in recreational activities and formed barriers, hindering his engagement in new hobbies and pursuits. Moreover, the profound impact of his brother’s death, coupled with ongoing mental health struggles, has created substantial barriers to his social functioning, amplifying the compromise on his overall well-being and quality of life.”[58]
[sic]
[58]APCB 32-35.
83Ms Lakkis recorded a constellation of symptoms that she described as severe psychiatric symptoms and related to the death of the plaintiff’s brother. The history that she based her opinions on is broadly consistent with my assessment of the evidence in this proceeding. As the treating clinician she has had the benefit of seeing the plaintiff on six occasions, together with one further assessment for the purpose of her report, and her opinions are compelling for a conclusion that the plaintiff has suffered a “serious injury”.
Medico-legal evidence
84The medico-legal evidence broadly falls into two camps.
85In the first camp are the doctors and medico-legal opinions that support a conclusion that the plaintiff had ongoing accident-related symptoms and impairment consequences, sufficient for a conclusion of a “severe” psychiatric injury.
86In the second camp is Associate Professor Peter Doherty, a consultant psychiatrist who provided several reports at the request of the defendant, which do not support a finding of “serious injury”.
Associate Professor Nick Paoletti
87Associate Professor Paoletti is a consultant psychiatrist who provided medico-legal reports at the request of the plaintiff’s solicitors. In his first report, dated 10 April 2018,[59] he took a background history and a description of the accident before setting out a psychiatric diagnosis of an unspecific anxiety disorder, with traffic anxiety, some features of post-traumatic stress disorder, and accompanying depressive feelings. He also diagnosed an alcohol and cannabis use disorder.[60] Associate Professor Paoletti said, regarding causation:
“The death of his brother Jamil in the motor vehicle accident of 26 March 2011 is a ‘significant contributing factor’.
[The plaintiff] comes from a disrupted social background, which would have some contribution to his emotional problems, but the key factor appears to be the death of his brother and the subsequent family lifestyle following that death.”[61]
[59]APCB 39.
[60]APCB 46.
[61]APCB 47.
88Then, under a heading of “Psychosocial impact”, Associate Professor Paoletti said:
“It is difficult to separate the impact of this accident on this family from other conflicts between the parents.
In any case, there has been at least the impact of a grieving lifestyle in this family, with which [the plaintiff] is finding it difficult to cope.
I have some concern that his choice of social associations may be guided by his need to have alcohol available, as he is underage and cannot buy it.
Overall, there has been a reduction in quality of life.”[62]
[62]APCB 48.
89Associate Professor Paoletti re-examined the plaintiff and provided a report dated 20 April 2021.[63] He obtained an updated background history, description of the accident and again conducted a mental state examination. In respect to the psychiatric diagnosis, he said:
[63]APCB 51.
“From a psychiatric point of view, the following diagnostic considerations apply:
1. [The plaintiff] suffers from an anxiety state, with features of post-traumatic stress disorder and marked traffic anxiety with avoidance, to which I have collectively applied the code Unspecified Anxiety Disorder (DSM-5 300.00) (ICD-10CM F41.9). The behaviours of walking the edge of skyscrapers, and attempting to jump onto a very fast moving train, described in his affidavit, appear to be a counterphobic phenomenon.
2. He suffers from a depressive disorder of reactive type, with chronic dysthymic features, to which I have applied the code Unspecified Depressive Disorder (DSM-5 311) (ICD-10CM F32.8). Depression was more prominent on this occasion, compared to the last.
3. There is at play a Persistent Complex Bereavement Disorder (DSM-5 309.89) (ICD F43.8), which he experiences through the loss of his brother, as also related in his affidavit, but it is complicated by the inability to overcome it, because of the exposure to photographs around the home and his mother and his sister, in his view, not moving on.
4. He has been abusing substances:
a. He has an Alcohol Use Disorder (DSM-5 305.00) (ICD-10CM F 10.10).
b. He has a Cannabis Use Disorder (DSM-5 304.30) (ICD-10CM F12.20).
c.He has been making symptomatic use of other substances, mainly MDMA, but also Ketamine, LSD and ‘party drugs’ which he could not name; to which I have collectively applied the code Other Substance Use Disorder (DSM-5 305.90) (ICD-10CM F 19.10).
5. He related that a psychiatrist has made a diagnosis of ADHD, for which the code would be Attention-Deficit/Hyperactivity Disorder (DSM-5 314.01) (ICD-10CM F90.2). However, his difficulty with concentration is easily explained by his anxiety, depression and drug use. Also, unusually for someone with ADHD, he did not like Ritalin. I agree with Dr Schutz that this is unconfirmed. The notes or a report by the diagnosing psychiatrist would be useful, if confirmation or refutation is required.”[64]
[64]APCB 58.
90Associate Professor Paoletti repeated his opinion regarding causation. He described the prognostic outlook as static and guarded.
91Associate Professor Paoletti was then provided further material and reported for a third time on 28 October 2022.[65] Essentially, in that report, he was asked to consider his psychiatric diagnosis and other opinions in the context of having been provided an opinion from Associate Professor Peter Doherty. In summary, Associate Professor Paoletti maintained the opinions he had previously expressed and said he could not agree with Associate Professor Doherty that there was no diagnosable psychiatric condition, as the plaintiff had “clearly reported symptoms in keeping with the adverse experiences around the death of his brother and commensurate with his exposures and experiences”.[66]
[65]APCB 64.
[66]APCB 66.
Dr Justin Lewis
92Dr Justin Lewis is a consultant psychiatrist who examined the plaintiff and provided medico-legal opinions at the request of his solicitors.
93In his first report, dated 15 November 2023,[67] Dr Lewis obtained a history from the plaintiff, conducted a mental state examination, reviewed various other reports, including reports from Associate Professor Doherty, and then answered questions as follows:
“1. Which of the injuries were caused or aggravated by the subject accident (note that the accident need not be the only cause)?
[The plaintiff] presents with a Chronic Adjustment Disorder with disturbance in mood and low-grade transport related traumatisation features.
[The plaintiff] would additionally meet criteria for a Cannabis Misuse Syndrome.
Whilst there are a number of other contributing factors to the Adjustment Disorder (including likely family dysfunction and strained parental relationship), the primary contributing factor to the Adjustment Disorder centres around the traumatic loss of his older half-brother’s death.
2. Which of the injuries were caused or aggravated by medication or other treatment related to injuries sustained in the subject accident (note that the treatment need not be the only cause).
None of the psychiatric injuries were directly contributed to by medication or treatment related to injuries.
[67]APCB 73.
3. Whether the injury has stabilised or substantially stabilised.
Yes, the psychiatric condition can be regarded as having substantially stabilised.
4. Whether [the plaintiff’s] condition is likely to deteriorate or improve to any significant extent in the future, whether in the long term or short term.
As noted, the psychiatric condition has substantially stabilised. I would not expect any significant improvement or deterioration in the underlying psychiatric condition.”[68]
[68]APCB 82.
94Dr Lewis then provided a supplementary report dated 12 December 2023.[69] He was asked to consider the report from Ms Lakkis and said that it was consistent with the history provided to him and highlighted the very significant impact of his brother’s death at a developmentally-sensitive age.[70]
[69]APCB 84.
[70]APCB 87.
95Dr Lewis reported again on 24 January 2024.[71] He was asked, in that report, to consider further material, including a report from Associate Professor Doherty of 18 December 2023. Having done so, he said the additional information did not cause him to change his previously-expressed opinions.[72]
[71]APCB 121.
[72]APCB 123.
96Then, Dr Lewis provided another report, also dated 24 January 2024,[73] but according to the index to the amended plaintiff’s Court Book actually dated [sic] 30 January 2024. That report was in response to a specific request that he comment on Associate Professor Doherty’s supplementary report, dated 29 January 2024, and whether the plaintiff’s cannabis use is caused by the transport accident. He said:
“I believe that there is indeed a strong correlation between [the plaintiff’s] Cannabis misuse and the early trauma concerning the death of his brother.
1. [The plaintiff] stated that cannabis served an important role in defending against painful memories of his brothers death ‘in order to block out the memories.’ [see paragraph 23 in report 15th November 2023].
2.Furthermore, Cannabis was described as reducing his heightened levels of anxiety ‘cannabis helps to relax me’ [see paragraph 39 in report 15 November 2023]
3. I further note the role of Cannabis to assist [the plaintiff’s] sleep which is particularly relevant in the context of persistent nightmares surrounding his brothers death.
4. In summary the development of [the plaintiff’s] cannabis abuse has its origins in helping him to manage the significant grief associated with the traumatic loss of his brother, in addition to managing his anxiety and traumatic nightmares.”[74]
[sic]
[73]APCB 125.
[74]Ibid.
Dr Gregor Schutz
97Dr Gregor Schutz is a consultant psychiatrist who examined the plaintiff at the request of the defendant for the purpose of an impairment assessment. In a report dated 11 May 2020,[75] Dr Schutz commented upon Associate Professor Paoletti’s report of 10 April 2018 and noted the history given to him was consistent with what had been provided to Associate Professor Paoletti. He then said the plaintiff had a psychiatric condition, best classified as a chronic adjustment disorder with anxious and depressed mood and features of traumatisation. He said it would also be additionally reasonable to consider this as an unspecified anxiety disorder and unspecified mood disorder. He said, “I would state that subsequent to the death of his brother, he has developed anxiety symptoms that can be reasonably related to the death”.[76] In respect to the plaintiff’s cannabis use, he said:
“This may represent a cannabis use disorder that is currently in partial remission. I would state that it is reasonable to conclude that his cannabis use has been contributed to by the motor vehicle accident in terms of an attempt to self-medicate distress.”[77]
[75]APCB 147.
[76]APCB 151.
[77]Ibid.
Vicki Moore
98Ms Vicki Moore is a Fellow of the College of Educational and Developmental Psychologists. She provided a report, dated 22 January 2024,[78] at the request of the plaintiff’s solicitors. She had available all the documentary evidence available at that time, including the medical reports discussed so far (as in existence at that time), relevant clinical records, claim forms, affidavits and the plaintiff’s school reports.
[78]APCB 87.
99Having assessed the plaintiff’s cognitive and intellectual function, and from the perspective of her expertise as an educational and developmental psychologist and teacher, Ms Moore noted the plaintiff’s positive school reports before the accident and that it was reasonable to conclude that the plaintiff’s elder brother was a consistent stable presence in his childhood until his sudden death. She said, “[t]he loss for your client would naturally have been very significant”.[79] She then said:
“In addition, [the plaintiff’s] Grade Three school report for his third school in four years, also showed no signs of ADHD, maladaptive/problematic behaviours, and good academic results. That his report was consistent with his premorbid (Grade Two) report is testament to the child’s natural reserve of acquired academic skills which enabled] him to at least, in the short term, be able to maintain his academic progress in the setting of family bereavement and the other pre-existing family stressors at home. At school he was also probably well supported and buffered by school community.
Because there were few signs of ADHD (inattentive) in younger years at school, I question the validity of the later diagnosis of ADHD. Nevertheless, by the time [the plaintiff] was eventually diagnosed with ADHD (15 years) he was showing marked signs of problematic behaviour that is similar [to] the symptoms of ADHD. For an ADHD diagnosis, the symptoms of ADHD need to be evident when the child was younger. It seems that the maladaptive and problematic behaviours (poor concentration, inattentiveness) did not begin to emerge until after the death of his brother, with the first indication that there were problems was [the plaintiff’s] Grade Five school report. This is likely to have reflected the full impact of the … full psychological impact of his brother’s death had begun to set in, and impact his concentration and by extension, his academic progress.
It should be noted that the onset of downward trend in [the plaintiff’s] rate of academic progress first evident in his Grade Five report had begun long before he commenced drug use (at 14 years/School Year 8 at school). Unfortunately, his Grade Four school report was unavailable to peruse but I would anticipate it might show nascent signs of this trend downwards academically and behaviourally.
So, looking at [the plaintiff’s] early development, from an educational perspective, in the setting of a disrupted family and several changes of schools, the chronology points to his brother’s death having been a prominent turning point in the change in his educational trajectory.”[80]
[79]APCB 105.
[80]Ibid.
100Ms Moore went on to answer various questions in a balanced and measured manner, including that she was inclined to disagree with some of the other expert evidence and opined that the plaintiff had limited prospects for employment. She said that, with targeted support, the plaintiff did have the intellectual potential to make positive progress, provided he was prepared to engage.[81] Her opinion is consistent with my impression of the plaintiff in the witness box.
[81]APCB 109.
Associate Professor Peter Doherty
101Associate Professor Doherty examined the plaintiff on several occasions and provided reports at the request of the defendant. He first examined the plaintiff on 13 October 2022 and provided a report dated 19 October 2022.[82] That was a Zoom examination, with the plaintiff on a mobile phone waiting to catch a bus. In any event, to his credit, Associate Professor Doherty managed to take a history from the plaintiff, conduct a mental state examination, and provide his response to specific questions. He then said that no diagnosable psychiatric condition was currently present, based on the usual clinical criteria such as DSM‑5.[83] He said:
“He reports a troubled childhood and adolescence. There is significant personality dysfunction. There has been intermittent and significant substance misuse. He has lost his way in education, and his educational achievement petered out in Year 11 and Year 12. He has no significant employment history. He has a narrow personal and social network. He is from a dysfunctional family setup. His father, he said, is an amphetamine addict. There was an early separation between his mother and his father, a re-uniting in Perth, and a final separation when he was fourteen years old. His educational achievement has been poor.
I considered whether or not there is a substance misuse disorder currently diagnosable. In my opinion, there is not. However, he has misused substances and continues to do so, particularly cannabis use. There is intermittent heavy drinking of alcohol.
He has had a troubled adolescence, if not a disturbed childhood. That is not a diagnosable psychiatric condition.
I believe a psychiatric diagnosis of adjustment disorder, PTSD or a clinically diagnosable personality disorder cannot be made based on the reported symptoms, review of the supplied material and his presentation at the interview. In my opinion, he has no diagnosable ADHD condition present.”[84]
[82]DCB 4.
[83]DCB 11.
[84]Ibid.
102Associate Professor Doherty said further:
“2. If the plaintiff is suffering from a psychiatric condition, what is the cause/causes of such condition?
This question is no longer relevant. There is no current diagnosable psychiatric condition.
However, there are many issues with regard to his personality functioning, capacity to deal with the challenges of late adolescence, and there is also the misuse of substances.
The death of the half-brother Jamil was a shock and a disappointment and is one of numerous psychologically difficult issues that the plaintiff has had to deal with over the years. There is now, and there has been on the available history, no direct and no significant contribution by that death and its consequences on the plaintiff current social, psychological, and psychiatric issues.
3. Based on the history and your examination and review of the enclosed material, does the plaintiff suffer from any psychiatric condition related to the transport accident on 26 March 2011? If so, does he continue to suffer from this injury?
He does not. There is no evidence that he has.
He told me there has been a psychological reaction to the loss of Jamil. However, at the date of Jamil’s death, the plaintiff and the rest of his family had relocated to Perth and expected to remain there. The separation from Jamil, and the loss of his companionship had occurred before Jamil’s death.
The plaintiff said that there was a deterioration in his school performance.
In my opinion, he lost his way in his secondary schooling, and that could not, in any reasonable manner, be directly or indirectly related to the death of Jamil.”[85]
[85]DCB 12.
103Associate Professor Doherty concluded by saying that there was no psychiatric contraindication, or incapacity, to undertake work or study.[86]
[86]DCB 13.
104Further, Associate Professor Doherty provided a report dated 1 November 2022[87] after he was asked to consider the opinions from Associate Professor Paoletti and Dr Schutz. Having considered those opinions, he commented that neither Associate Professor Paoletti nor Dr Schutz had been provided with much in the way of material to assist in the preparation of their reports. He then said:
“In my opinion, the psychiatrist Assoc Professor Paoletti and psychiatrist Dr Schulz [sic] do not give due consideration to the disturbed childhood, adolescence, disrupted family and the consequential, expected adolescent issues that would be expected to be present, even if the death of Jamil never happened, and would have challenged and stressed the plaintiff, and been influential in the psychological and social development of the plaintiff.”[88]
[87]DCB 14.
[88]DCB 17.
105Then Associate Professor Doherty re‑examined the plaintiff in person on 11 December 2023 and provided a report dated 18 December 2023.[89] Once again, he took a history from the plaintiff, conducted a mental state examination, and then provided an updated clinical examination finding. He then said that there was a diagnosable substance use disorder related to cannabis use,[90] but that there was no other diagnosable psychiatric condition. He then said:
“The cause of substance use is always multifactorial. The father is said to have an amphetamine use problem, so there may be a genetic predisposition. The breakup in the relationship with his parents, the lack of a perceived relationship with his father, and the death of his elder brother are all contributors to the presence of a substance use disorder.
The cannabis use disorder is first diagnosable, based on the history now obtained, when the plaintiff was in his late teenage years, about ten years after the subject death.
The connection and contribution that the subject death made to the development of the cannabis use disorder is very small but material.”[91]
[89]DCB 18.
[90]DCB 26.
[91]DCB 27.
106Associate Professor Doherty then said that:
“The substance use disorder came on in his teenage years. He first smoked cannabis at the age of thirteen and developed a habit by the age of fifteen or sixteen. This is not related directly to the transport accident. There is no direct connection. There is a disturbed upbringing, a history of family violence, and separation of his parents and personality and interpsychic issues that are the significant contributing factors.
The loss of his brother makes a small and insignificant contribution to the cannabis use disorder.”[92]
[92]Ibid.
107Regarding the diagnosed substance use disorder, Associate Professor Doherty said that it made a significant interference in social, domestic and recreational activities. He said the outcome was not favourable, but that there was no psychiatric condition due to, or significantly contributed to by, the accident.[93]
[93]Ibid.
108Associate Professor Doherty reported again on 29 January 2024[94] after he was provided with the material from Ms Moore and copies of the plaintiff’s school reports for the grades two, three, five, six and eight. Having considered that material, he said that it made no change to his psychiatric opinion.[95] He said:
“Notably, the deterioration in his academic performance occurred in Grade 5, in the year after another change of school, two years after the death of his brother, in the context of persistent family discord and the plaintiff attending his third primary school.
My opinion is that there is no convincing evidence linking the death of the brother to the deterioration in the educational achievement of the plaintiff, which became evident two years later. The psychologist notes in her report that the derailment of the educational trajectory occurred sometime after the brother’s death.
As it was two years after, it is incumbent on her to justify any connection between those two events (the death and the deterioration).
There are, however, other significant and contemporaneous stressors, such as the change of school and discord between the parents, that would be reasonably assumed to be contributors to the deterioration in educational performance.
The psychologist confirms my view about the presence of psychological and personality issues affecting his interpersonal capacity and his ability to enter the workforce successfully.”[96]
[94]DCB 29.
[95]DCB 31.
[96]DCB 31-32.
Consideration
109The starting point is that there is no dispute that the plaintiff suffered a compensable psychiatric injury because of the death of his brother in the accident.
110As already set out, broadly, the defendant contended that the plaintiff’s ongoing impairment consequences, especially his problems with concentration and substance abuse, relate to other life stressors, such as a possible diagnosis of ADHD, the domestic dispute between his parents, the fact that he changed schools on several occasions and commenced using cannabis effectively as a lifestyle decision.
111The defendant contended that the plaintiff retained a considerable ability to engage in day-to-day activity so that, even if the Court concluded that the ongoing impairment consequences and substance use disorder related to the compensable psychological injury, such injury simply did not produce a “severe” impairment consequence.
112Contrary to the primary contention of the defendant, after a consideration of the whole of the evidence, I am satisfied that the plaintiff has suffered a “severe” impairment consequence from the compensable injury.
113First, I accept that the plaintiff’s concentration problems developed at a young age, probably in grade four, and certainly by grade five. But on the evidence I accept that those problems were because of his psychiatric/psychological reaction to the death of his brother.
114On this topic, I prefer the medical evidence tendered by the plaintiff, and in particular the careful opinions from Ms Moore, who analysed the plaintiff’s school reports and other evidence and concluded within her relevant expertise that the decline in the plaintiff’s school performance was related to the compensable psychiatric injury. Her opinions are considered, logical and compelling for a conclusion the plaintiff’s academic results were impacted by the claimed “serious” injury.
115The plaintiff had a compromised schooling because of his compensable injury, which has impacted his employability and employment options. That is of itself a very considerable consequence for a young person.
116Second, I accept that the plaintiff has ongoing problems with concentration and anxiety. I accept that he has problems with flashbacks and intrusive thoughts, especially around the anniversary of his brother’s death or triggering events such as birthdays and the like. I accept that these ongoing symptoms have caused the plaintiff to use marijuana and that it has caused a substance use disorder.
117I also accept that the plaintiff’s condition is not one that is easily treated. The treatment involves psychological counselling which he finds triggering because it requires him to engage with and recall distressing matters. The treating psychologist, Ms Lakkis, described the plaintiff’s ongoing psychological difficulties, and the limited utility of ongoing psychological treatment because of the challenges that counselling had caused. In such a scenario, the plaintiff’s ongoing symptoms are long term.
118Third, I accept that the plaintiff has a retained capacity for day-to-day activity. He made candid concessions about things such as being able to drive, looking for work, and that he would give a job a go if offered to him.
119But equally, he gave credible evidence about his ongoing psychological problems and how those problems have impacted him for work and for daily activity.
120For a consideration of the “seriousness” of the plaintiff’s injury, it is relevant to look at what is retained, although that does not mean that I ignore what is lost, or what has been impacted on by his psychological condition.
121I do not accept that the plaintiff is unemployable, but I do accept that his psychological symptoms have impacted and will continue to impact his employability.
122Fourth, I prefer the medico-legal opinions from Associate Professor Paoletti, Dr Lewis and Dr Schutz. They are broadly consistent and ascribe an ongoing psychiatric condition from the accident, with ongoing anxiety and impairment of mood, as a substantial contributor to the substance use disorder. Their evidence is that the plaintiff’s psychiatric condition is entrenched.
123In my opinion, Associate Professor Doherty placed too much emphasis on what he described as assumptions about other life stressors. I conclude that he failed to adequately consider the effect of the death of a sibling, who was something of a father figure the plaintiff when he was a young boy. In addition, aspects of his opinions are inconsistent and contradictory. I have difficulty reconciling how he formed the opinion that there was no psychiatric injury related to the accident yet ascribed a contribution by the accident to the plaintiff’s substance use disorder.
124There is one issue all the medico-legal psychiatrists agree, namely that the plaintiff has a substance use disorder. That disorder impacts the plaintiff’s concentration, mood, and motivation. All the medico-legal opinions are that it is a major problem and one that significantly impacts the plaintiff. As is obvious, where they disagree is as to the aetiology of that disorder.
125I consider that the opinions of Associate Professor Paoletti, Dr Lewis and Dr Schutz are based on sound evidentiary conclusions, consistent with those that I have drawn, and I prefer their opinions over the opinions from Associate Professor Doherty, regarding the cause of the plaintiff’s ongoing psychiatric problems and substance use disorder.
126Fifth, it should not be forgotten that the plaintiff was only eight years old when he suffered a psychiatric/psychological injury because of the tragic death of his brother, who he described as like a father figure to him. His childhood, schooling, early adult life, and employment opportunities have been impacted by the death of his brother. He remains in the grip of a substance use disorder largely because of the accident. In my opinion, these “lost years” are a profound loss for a young person, where the evidence is that his psychological/psychiatric impairment will continue.
Conclusion
127In a consideration of whether the plaintiff has suffered a “severe” impairment consequence, for the purposes of a claim arising from a transport accident, I am able to consider in combination the pain and suffering and pecuniary loss consequences. Having done so, I conclude that the plaintiff has suffered a “severe” psychiatric reaction to his brother’s death.
128Therefore, for the reasons given, leave is given to the plaintiff to commence a common law proceeding.
129I shall hear from the parties as to the appropriate orders, including orders for costs.
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