Allouche v Transport Accident Commission
[2020] VCC 509
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02397
| KHALED ALLOUCHE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE P GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 and 22 November 2019 | |
DATE OF JUDGMENT: | 30 April 2020 | |
CASE MAY BE CITED AS: | Allouche v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 509 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident- Serious injury application-Whether plaintiff suffered severe long-term mental disorder – whether plaintiff suffered severe long term mental or severe long term behavioural disturbance or disorder as a result of transport accident – plaintiff’s son died when a passenger in car – plaintiff not passenger – long previous history of depression – other events of exacerbation before transport accident and after transport accident – plaintiff’s evidence unreliable –whether unreliable evidence determinative of outcome – unreliable evidence not determinative – aggravation severe -
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 437; De Agostino v Leatch [2011] VSCA 249; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Humphries & Anor v Poljak [1992] 2 VR 129; Katanas v Transport Accident Commission [2016] VSCA 140; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592; Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260; Samaras v TAC [2019] VSCA 255; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Serious injury certificate granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC | Antony, Sdrinis & Co |
| For the Defendant | Mr J Ruskin QC | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Preliminary issues
1 The plaintiff seeks leave by way of Originating Motion to commence proceedings for damages at common law pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injuries he claims to have suffered as a result of the death of his 15 year old son, Yousef, who was a passenger in a motor vehicle accident on 30 November 2015 (“the transport accident”).
2 The plaintiff was not an occupant in the vehicle in which Yousef died.[1]
[1]No point of jurisdiction was relied on by the defendant.
3 The plaintiff learned that his son had been injured in a transport accident when police attended his home. He was present at the hospital and saw his son on life support and the injuries he had sustained, and he was in attendance too, when the life support was removed the next day.
4 The impairment relied upon by the plaintiff is a mental impairment.
5 The definition of “serious injury” in s 93(17) of the Act recognises a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. Because the plaintiff’s impairment or loss of a body function is alleged to be produced as a consequence of a mental disturbance or disorder, his impairment must be considered under paragraph (c).
6 Section 3 (1) of the Act defines transport accident to include “an accident directly caused by the driving of a motorcar or motor vehicle…”
7 Section 93 (1) of the Act provides that “[a] person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident… except in accordance with this section.”
The other proceeding
8 The plaintiff’s wife has also commenced an application by way of Originating Motion seeking the grant of a serious injury certificate for an injury under paragraph (c) of the definition and relying on the same transport accident. Both applications were listed to be heard together. When they came on before me for hearing, there having been no orders made for the conduct of the proceedings, I asked the parties if they agreed to evidence in one being able to be used in the other. The parties agreed to this course. I heard the evidence in each application consecutively. I advised the parties I would publish separate reasons. The application by Khaled Allouche proceeded first. At the conclusion of the evidence in his application, the matter of Siham Allouche was heard. At the conclusion of her evidentiary case, closing addresses were made relevant to the respective applications.
The argument in opposing the grant of a serious injury certificate
9 The defendant opposed the grant of relief. It argued that at the date of the transport accident the plaintiff presented with a lengthy history of depression that had arisen at, or about the time of, or consequent to, the death of his first wife in 1991 with the effect on him being so grave that he had been unable to work since that time. There is conflicting evidence to explain the plaintiff’s absence from work in the decades since the death of his first wife and before the transport accident. For example, Dr Serry, a psychiatrist to whom the plaintiff was sent for examination by his solicitors, reported that the plaintiff had ceased employment “when the Dunlop factory relocated to an area which was difficult for him to get to.”[2] In his first affidavit[3] the plaintiff said that he ceased his employment with Dunlop “because my first wife was dying of cancer and I was actively and fully involved in her treatment at the last two years of her life.”[4] Then, in answer to a question by Mr Ruskin, when he was asked to try and calculate how many years before his first wife died that he had ceased work, he mentioned that he had not returned to work because he had many children to take care of.[5] There is no reliable evidentiary account of either when the plaintiff ceased employment, or whether his inability to return to employment afterwards was due to geographic restrictions or parenting responsibilities or some other reason or combination of reasons, including his depression.
[2]Exhibit P9, See report of Dr Nathan Serry, dated 19 March 2018, Plaintiff’s Court Book (“PCB”) 51.
[3]Exhibit P1, Affidavit, sworn 17 January 2019, PCB 7-12.
[4]Exhibit P1, paragraph [6], PCB 8.
[5]Transcript (“T”) 21.
10 Despite uncertainty about the plaintiff’s employment history, what may be accepted, is that the plaintiff commenced on antidepressant medication following his first wife’s death and he remained on antidepressant medication up to the date of the transport accident in November 2015 because, according to the plaintiff, it assisted his mental state and in him meeting the demands of his everyday life. Although the plaintiff said that over the years since, the dosage of medication was reduced, the evidence did not identify either the medication or medications he was prescribed over that period, the initial dosage or its subsequent reduction.
11 The defendant argued that the extent to which any mental disturbance or disorder can be assessed as having been caused by the death of the plaintiff’s son in the transport accident is questionable and, ultimately, had not been established by the plaintiff. The defendant also pointed to other traumatic events that had beset the plaintiff, one of which involved an episode of domestic violence that the plaintiff and his wife were subjected to in the middle of 2015 by Mohammed, one of the plaintiff’s sons from his first marriage, and also the arrest on a charge of murder of another son, Osama, in March 2019.
12 The defendant also submitted that if, contrary to its submissions, I was satisfied there had been an aggravation of the plaintiff’s pre-existing depression and caused by the transport accident, then I could not be satisfied of a qualitative difference between the limited activities the plaintiff undertook before the accident and since, but that, in any event, he remains engaged in them and, therefore, the consequences for him caused by any aggravation injury are not themselves more than very considerable and, therefore, “severe” when assessed by way of their effect on him and when judged according to range of spectrum of like impairments as I am required to do.
The plaintiff’s argument
13 The plaintiff’s application was pursued by Mr Ingram QC on the basis that the transport accident of November 2015 caused an aggravation of the plaintiff’s pre-existing mental disorder by way of depression caused by the death of his first wife in 1991 but that “the magnitude of that condition had dissipated very, very significantly over the almost 30 years that followed”.[6] He argued that the domestic disturbances that involved two of the plaintiff’s other sons and their effects on him had been sufficiently accounted for and discounted on the medical evidence.
[6]T129.
14 I note that the relief sought in the plaintiff’s Originating Motion was couched as injury caused by the transport accident and not an aggravation, but in light of the defendant’s defence, and the plaintiff’s vexed history, the altered analysis engaged in by the plaintiff proved understandable.
The evidence by affidavit
15 The plaintiff’s evidence in chief comprised two affidavits.[7] He gave his oral evidence in court through an Arabic interpreter. In evidence in chief he attested to the truthfulness of the contents of his affidavits via the same interpreter who had sworn that he had truly, distinctly and faithfully interpreted their contents to him. Listening to the plaintiff’s evidence, I am not completely satisfied that this occurred. The question of how the plaintiff came to attest to his affidavits was not pursued by the defendant. Mr Ingram did not, for example, suggest that what proved to be considerably unsatisfactory evidence by the plaintiff adduced under cross-examination by Mr Ruskin might have arisen due to an insufficiency in the quality of the interpretation the plaintiff had been provided.
[7]Exhibit P1, PCB 7-12 and Exhibit P2, Further Affidavit, sworn 19 September 2019, PCB 13-15.
The plaintiff
16 The following relevant matters were disclosed by the plaintiff in his affidavit of 17 January 2019. He arrived in Australia in 1971. He had six children with his first wife. He said that he became fully involved as his wife’s carer following her diagnosis with cancer and up to her death in 1991.
17 At or about, or shortly after her death, he was prescribed an antidepressant medication and on referral from his treating general practitioner, Dr Michael Yacoub, he came under the care of, for the first time, Dr Al Humrany, a psychiatrist. The plaintiff deposed in his first affidavit that he used antidepressant medication “for a period of about two years”.[8]
[8]Exhibit P1, paragraph [7], PCB 8.
18 The plaintiff remarried in 1994. He said that his mood improved although he continued to take antidepressant medications but at a “much reduced dosage”[9] because it helped him with a range of domestic and social activities in which he was involved as the head of a large and extended family. Having fathered six children with his first wife, he would eventually have a further six children with his second wife, one of whom was Yousef.
[9]Ibid.
The death of his son
19 The plaintiff deposed to the circumstances of Yousef’s death. I do not doubt that the death of his son was extremely distressing. I accept without reservation that seeing the extent of the injuries his son sustained following the accident, the details of which are identified in hospital records that formed part of the plaintiff’s evidence, and that were also recited in very great detail by Mr Ingram in the course of his final address, would have been traumatic. Dr Epstein, psychiatrist, to whom the plaintiff was sent for an independent examination by his solicitors, reported that “[T]he image of seeing his son’s body still stays with him”.[10] I also accept that the plaintiff would have experienced distress during the religious rituals leading to the burial of his son.
[10]Exhibit P10, PCB 60.
The plaintiff’s medical evidence
20 The plaintiff relied on the following medical evidence:
·progress notes of Dr Yacoub dated 19 January 2016, 24 March 2016 and 18 May 2016[11],
·referral report of Dr Yacoub to Shireen Francis dated 18 May 2016[12]
·referral report of Dr Yacoub to Dr R. Al Humrany dated 24 March 2016[13]
·report Dr Yacoub to Antony, Sdrinis & Co solicitors dated 27 February 2018; 5 October 2018 and 15 February 2019[14]
·reports of Shireen Francis, clinical social worker/counsellor dated 30 November 2016 and 30 June 2017[15],
·clinical notes of Shireen Francis, for period 3 July to 19 June 2019[16]
·reports of Dr Al Humrany, clinical psychiatrist dated 28 April 2016,[17]
·reports of Dr Byron Rigby, consultant psychiatrist dated 7 October 2019.[18]
[11]Exhibit P4, PCB 27-29.
[12]Exhibit P4, PCB 30-31.
[13]Exhibit P4, PCB 32-33.
[14]Exhibit P4, PCB 34-38.
[15]Exhibit P5, PCB 39-40. Ms Francis is incorrectly referred to on occasions as a psychologist.
[16]Exhibit P6.
[17]Exhibit P7, PCB 41-42.
[18]Exhibit P8, PCB 43-46.
21 I have read the clinical notes and the various reports.
22 The plaintiff also relied on the Independent Medical Examination reports of Dr Nathan Serry, consultant psychiatrist, dated 19 March 2018[19] and Dr Michael Epstein, psychiatrist dated 17 October 2019.[20] I have read and considered them.
[19]Exhibit P9, PCB 47-56.
[20]Exhibit P10, PCB 57-69.
23 As well, the plaintiff relied on hospital Emergency Department records and ambulance records associated with the admission of Yousef following the transport accident.[21]
[21]Exhibit P3, PCB 16-26.
The defendant’s medical evidence
24 The defendant relied on Independent Medical Examination reports of Associate Professor Doherty, consultant psychiatrist, dated 30 April 2018, 9 October 2019 and 31 October 2019[22] and extracts of clinical notes of Dr Yacoub.[23] I have read and considered each report and the clinical notes.
[22]Exhibit D1, Defendant’s Court Book (“DCB”) 4-31.
[23]Exhibit D2, DCB 32-49.
A consideration of the medical evidence relied on by the plaintiff
25 Dr Yacoub is the plaintiff’s treating doctor. In the first of three reports he provided to the plaintiff’s solicitors, and dated 27 February 2018, he reported having seen the plaintiff on 19 January 2016, which was a little under two months following Yousef’s death. He reported that the plaintiff was very upset, depressed, crying, not eating and not sleeping, and all of this had occurred following the death of his son. He offered him grief counselling and suggested that he see a psychiatrist and psychologist, but apparently the plaintiff was not then ready to do so.
26 Dr Yacoub said in his first report of 27 February 2018 that he had continued to treat the plaintiff’s medical conditions. The plaintiff has suffered a series of physical ailments including type 2 diabetes diagnosed in 2013 and cholesterol and hypertension both of which were treated with medication and in 2014 he underwent a prostate procedure at Royal Melbourne Hospital.
Dr Yacoub also observed in his February 2018 report, that he had “offered him counselling after Youssef’s death, as each time I saw him, he was hopeless, helpless, pale, not sleeping, not eating, very emotional, and with poor concentration”.[24] On 24 March 2016, he referred the plaintiff back to
Dr Al Humrany.
[24]Exhibit P4, PCB 34.
27 In a report written to Dr Yacoub dated 28 April 2016 following his examination of the plaintiff,[25] Dr Al Humrany said that the plaintiff had described events that he considered amounted to an exacerbation of unresolved long-term grief from the death of his wife in 1991 as well as an adjustment disorder manifested by a mixture of anxiety and depression following Yousef’s death in November 2015. Dr Al Humrany prescribed the plaintiff Zoloft, 50 mg half a tablet a week then increasing to “one tablet in the morning”.[26]
[25]Exhibit P7, PCB 41-42.
[26]The report does not identify the plaintiff’s existing medication or its dosage or whether Zoloft replaced the pre-existing antidepressant medications.
28 In his report dated 27 February 2018, Dr Yacoub said he thought that the plaintiff continued to suffer from an adjustment disorder exhibited by a mixture of depression and anxiety following Yousef’s death. He said that the plaintiff thought of the accident and death of his son frequently and, in his opinion, it was likely that his condition would never stabilise. He considered that the plaintiff’s depression and anxiety required “continuing treatment” and that he should see him on a regular basis for counselling “and to check the effect of the medication”.[27]
[27]Exhibit P4, PCB 34.
29 Dr Yacoub also detailed that in addition to having referred the plaintiff to Dr Al Humrany, he had referred the plaintiff to Ms Francis, for six sessions of treatment under a Medicare Funded Health Plan on 18 May 2016.
30 Dr Yacoub’s letter to Ms Francis attributed the plaintiff’s problems to having occurred since Yousef’s death in November 2015 and that since then he had been depressed, upset and angry. Dr Yacoub explained that the plaintiff had been referred to Dr Al Humrany who had prescribed him Zoloft (50 mg) a day. Dr Yacoub’s letter to Ms Francis, however, did not recount the plaintiff’s
pre-existing history of depression that followed the death of his first wife or of his previous and ongoing course of antidepressant medications that had prevailed up to the date of the transport accident or the episode of family violence engaged in by Mohammed that occurred in the middle of 2015.
31 Ms Francis in a brief report dated 30 November 2016, which she described as an “update,”[28] following the completion of the plaintiff’s six counselling sessions, assessed the plaintiff as suffering from mixed anxiety, depression, grief and loss and that his “symptoms have been compounded by complicated and chronic greive (sic) for his 14 years old son”.[29] It is not clear from Ms Francis if she was intending to be understood as suggesting that the plaintiff’s symptoms were caused by the transport accident and had been compounded by chronic grief or if the symptoms predated the transport accident and had been compounded by chronic grief for Yousef. There is no reference by Ms Francis to a pre-existing mental history.
[28]If there was an earlier report to which this amounted to an “update” it was not before me in evidence.
[29]Exhibit P5, PCB 39.
32 Ms Francis recorded that the plaintiff was feeling overwhelmed, with low motivation, was socially withdrawn, and experiencing poor concentration and sleep disturbance. She reported that at each of the six consultations, he had presented as very depressed and would often break down in tears and had expressed strong themes of helplessness and hopelessness and that he had failed to show any improvement in his mood, which she attributed to his chronic grief and loss.
33 Ms Francis provided a second short report dated 30 June 2017 and wrote that the plaintiff “has been attending therapy sessions since he has (sic) referred from his GP for management of his psychological issues under the Medicare Initiative Better Access Mental Health Care”.[30] She continued to recommend “Cognitive Behaviour Therapy and Interpersonal therapy” but she observed there was no evidence of any improvement “due to the contributing factors such as the chronic grieve and loss as well as social isolation”.[31] Her second report did not refer to the plaintiff’s previous history.
[30]Exhibit P5, PCB 40.
[31]Ibid.
34 At the request of the plaintiff’s solicitors, Dr Serry undertook an independent psychiatric medical examination of the plaintiff on 19 March 2018 and provided a report of that same date.[32] His assessment method included obtaining a history from the plaintiff and he also administered a mental state examination. He noted that the plaintiff had long-standing pre-existing nervousness, anxiety and depression and grief that had come on following the illness and death of his first wife for which the plaintiff had “seen doctors and been prescribed medication as a result,” however, the plaintiff’s assessment was that he considered he had recovered from that tragedy and regarded himself as considerably better in the period prior to his son’s death.[33] As to the effects on him of the transport accident, Dr Serry assessed the plaintiff as having suffered an initial grief reaction that had resulted in a chronic adjustment disorder with anxious and depressed mood with features of traumatisation.
[32]Exhibit P9, PCB 48.
[33]Ibid, PCB 51.
35 Dr Serry recounted that on being told at the Royal Melbourne Hospital of the severity of his son’s injuries and of having been placed on life support, the plaintiff was “fearful and deeply shocked” and when told that his son’s life support was to be turned off, he found it “too upsetting for words”.[34]
[34]Ibid, PCB 48.
36
The plaintiff told Dr Serry that he thinks of his son very frequently, but he also acknowledged that there are periods when his mind is not so occupied, and when that occurs, he feels somewhat like his normal self. The plaintiff recounted to Dr Serry a dream involving his son and of experiencing vivid recollections of being with Yousef in hospital and the life support being
turned off.
37 The plaintiff explained to Dr Serry that birthdays and anniversaries are particularly difficult for him including the birthdays of his other children.
38 The plaintiff told Dr Serry that he visits the Fawkner Cemetery once a week on average. I gather from the evidence given by the plaintiff’s wife in her proceeding, that his attendances at Fawkner occur in her company. The plaintiff told Dr Serry that his mood and energy level fluctuate, and his motivation and interest levels are “very much reduced”.[35] Thoughts of Yousef intrude on domestic activities. His sleep is variable, and he has good and bad nights. He had not experienced suicidal thoughts.
[35]Exhibit P9, PCB 49.
39 The plaintiff told Dr Serry that he was overall more stressed and anxious and worried than he had been in the past and that he worries about his other children. Although he drives, he avoids anywhere near the site of his son’s accident.
40 Dr Serry said that he had considered Dr Yacoub’s practice and clinical notes including a prescription of Zoloft 50 mg per day and also that the plaintiff had been provided counselling sessions under a Medicare Mental Health plan. He said he had read the opinion expressed by Ms Francis in November 2016 and her thought that the plaintiff suffered from mixed anxiety and depression as well as grief and loss. Dr Serry referred also to the report of Dr Al Humrany dated 28 April 2016.
41 Dr Serry wrote that the plaintiff continued to grieve from the loss of his son and had experienced ongoing but fluctuating anxiety, depression and traumatisation features ever since. He did not regard the plaintiff to have returned to his claimed premorbid level of functioning.
42 The incident involving Mohammed was not mentioned by Dr Serry as part of a history he obtained from the plaintiff or with which he had been provided.
43 Diagnostically Dr Serry found that the plaintiff had suffered “an initial grief reaction which in my opinion is now better conceptualised as a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation”.[36]
[36]Exhibit P9, PCB 53.
44
Dr Yacoub wrote in his third report to the plaintiff’s solicitors dated
15 February 2019, that he had seen the plaintiff the previous month at which time he had been “very upset, depressed, crying, and not coping well due to his daughter’s engagement. Family, close family members, and friends were all there and wishing Yousef was also there”.[37] Dr Yacoub offered the plaintiff counselling, encouraged him to continue taking Sertraline (Zoloft) 50 mg per day and urged him to arrange an appointment with Ms Francis as soon as possible.[38] Dr Yacoub did not think the plaintiff’s condition was stable and thought it may never be because he continued to think of the accident and the death of his son on a frequent basis.
[37]Exhibit P4, PCB 37.
[38]The plaintiff last saw Ms Francis in early September 2019.
45 Dr Yacoub’s 15 February 2019 report is consistent with the plaintiff continuing to encounter episodes of grief over the loss of his son more than three years after the death and especially so when there are family events that bring his absence into particular relief. I think it is reasonable to conclude that in a large extended family as is the plaintiff’s, there will be frequent gatherings that evoke sadness and grief.
46 Typed notes of three further sessions attended by the plaintiff with Ms Francis were relied on by the plaintiff.[39] These additional sessions were conducted on 3 July, 31July and 6 September 2019. The notes reveal that the plaintiff continued to be instructed in and encouraged by Ms Francis to adopt cognitive behavioural therapies and techniques to assist him manage his distress and low mood.
[39]The notes were produced by Mr Ingram after the close of the plaintiff’s case and after hearing argument from both counsel I received them in evidence.
47
The typed notes by Ms Francis of the three sessions undertaken between July and September 2019 record minimal background information. Absent from them, as with her two earlier reports, is a reference to the incident of domestic violence the plaintiff and his wife were subjected to by Mohammed in
mid-2015 and, furthermore, the notes do not refer to the arrest of Osama on a charge of murder in about March 2019. Her notes are of value, however, because they identify that the plaintiff was continuing to experience occasions of low mood and depression and guilt associated with the death of Yousef almost four and a half years after the accident.
48 Dr Rigby saw the plaintiff at the request of the plaintiff’s solicitors in order to assess his psychiatric consequences from the death of Yousef and he furnished a report on examination dated 7 October 2019[40]. He conducted two consultations. The initial consultation was conducted jointly with the plaintiff’s wife. He said that his report should be read “in the context of the report on his wife.”[41] Dr Rigby wrote that the plaintiff’s wife was the more outwardly distressed of the two and he elicited principally the mental state and history of the plaintiff’s wife. Dr Rigby added that the plaintiff told him, that although most of his wife’s experiences were similar to his own, he assessed his distress as “considerably less”[42] than hers.
[40]Exhibit P8, PCB 43-46
[41]Ibid, PCB 43.
[42]Ibid, PCB 44.
49
Dr Rigby identified the history of reporting supplied to him that included
Dr Serry’s report from 2018 (which Dr Rigby considered to be “extremely thorough”). Dr Rigby determined that in almost all respects his assessment accorded with Dr Serry’s opinion made one year earlier. In summary,
Dr Rigby concluded that the plaintiff presented with “severe depression which dates from the death of his son five years ago in a transport accident, and also appears to relate to his concern about his wife’s condition.”[43]
[43]Exhibit P8, PCB 46.
50 Dr Rigby thought the plaintiff’s psychiatric condition had not been due to any cause save for the transport accident. However, his opinion is less potent because of other references. For example, he referred to a previous work related injury.[44] He added into the causative mix, a history of depressive and anxious symptoms following the death of the plaintiff’s first wife, but said that he was uncertain about the extent to which her death may have laid the foundation for his reaction to the loss of his son in the November 2015 transport accident. At all events, and as I understand his opinion, it is that the plaintiff had been rendered susceptible to a more severe reaction and response to the death of Yousef by reason of his previous depression than if that had been absent. Dr Rigby made no reference to the events involving Mohammed and Osama.
[44]No evidence exists of any previous work injury and it appears to have been wrongly included.
51 Dr Rigby wrote that because of the long period of time since the death of the plaintiff’s first wife, he considered the contribution from it would be “modest.”[45]
[45]Exhibit P8, PCB 46.
52 Dr Epstein saw the plaintiff on 17 October 2019 with the assistance of an Arabic interpreter and he furnished a detailed report of examination to the plaintiff’s solicitors. He wrote that following the death of his first wife, the plaintiff took antidepressant medication “for about two years and saw Dr Raid Al Humrany.”[46] He noted that the plaintiff had deposed in his first affidavit that he continued to maintain a low dose of medication in the years that followed because it “helped him to maintain a full range of domestic and social functions and to be actively involved with his extensive family of twelve children and eleven grandchildren.”[47]
[46]Exhibit P10, PCB 58.
[47]Exhibit P10, PCB 58.
53 Dr Epstein observed that in the years after his first wife’s death and before Yousef’s death, the plaintiff was sufficiently capable to have travelled to Lebanon alone in 2009 and again in 2014 when he did the Haj to Medura and Mecca.
54 Dr Epstein addressed the circumstances of the episode of family violence that the plaintiff and his wife were subjected to in the middle of 2015 by Mohammed. I will deal his account of it later in these reasons.
55 Dr Epstein addressed the suite of activities that went to make up the plaintiff’s life before Yousef’s death. He said that the plaintiff would attend his mosque in Preston every Friday for prayers and he prayed five times a day. He would maintain regular contact with his brother and sister in Melbourne and their large families and would see four of his six children from his first marriage regularly. He would do some gardening. He would take his children to and from school. His wife drove and she would do most of the shopping. He would be visited by friends and he would play cards and drink coffee with them every two to three weeks.
56 Dr Epstein wrote that although the plaintiff had told him he had lost interest in “most of his usual activities” he continued to be diligent of his religious practices.[48] He continued to visit the Victoria Market at least weekly and his family continued to entertain relatives and friends although, Dr Epstein wrote, that his impression is of the plaintiff appearing “to have less contact with friends involved in playing cards and having coffee than prior to his son’s death.”[49]
[48]Ibid, PCB 67.
[49]Ibid.
57 Specifically, Dr Epstein wrote:
“Since the death of his son it appears that he has become significantly more depressed. It is now almost four years since his son’s death and his acute grief has changed leading to an exacerbation of what appears to have been a Persistent Depressive Disorder. He also has a Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts about his son, distress with reminders of his death and concerns about safety of his family, hypervigilance, emotional withdrawal and a sense of bleakness.
All these symptoms were present prior to the incident involving his son, Osama, on 1 March 2019 and may have been exacerbated by his distress over his son’s incarceration.
He continues to visit the Victoria Market at least weekly, the family continue to entertain relatives and friends. He appears to have less contact with friends involved in playing cards and having coffee than prior to his son’s death.
His quality of life appears to have diminished a little since his son’s death.
His prognosis for improvement is poor he is seventy-one years old, it is four years since his son’s death, his other son is currently in prison on serious charges and all these factors together mitigate against any significant improvement in his mental state.
He has had psychiatric treatment and counselling and use of antidepressant medication but it is unlikely that any treatment would bring about any significant improvement in his condition.”[50]
[50]Exhibit P10, PCB 67.
58 Dr Epstein’s opinion requires some consideration. First, he thought that the plaintiff had appeared to have become significantly more depressed in the four years since Yousef’s death and that what had been assessed as “acute grief” following the death had changed and manifested itself as a Persistent Depressive Disorder. Second, Dr Epstein also diagnosed a Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts about Yousef, distress with reminders of his death and concerns about the safety of his family, hypervigilance, emotional withdrawal and a sense of bleakness. Third, Dr Epstein was aware of the additional stressors the plaintiff had experienced namely, the episode of family violence and estrangement from Mohammed prior to Yousef’s death, and in March 2019, the arrest and remand of his son Osama on criminal charges including murder. As to their effects on the plaintiff’s mental state, Dr Epstein reported that the symptoms the plaintiff presented with had all been present before the arrest of Osama although his symptoms may have been exacerbated by his distress over Osama’s predicament. Although Dr Epstein did not specifically address whether he thought the incident involving Mohammed had any effect on the plaintiff’s mental condition, such as by way of an exacerbation of his pre-existing and pre-transport accident mental condition, he did say that “all these factors” together mitigate against any significant improvement in the plaintiff’s mental state.
59
The focus I must bring to bear in determining the grant of a serious injury certificate is not limited just to the identification of a psychiatric type injury but importantly it requires a judgment about the consequences of the injury and, in this case, whether the transport accident has wrought an aggravation that is severe, as opposed to, perhaps, a further exacerbation of the plaintiff’s previous psychiatric state but that is not of itself severe. On that score,
Dr Epstein’s opinion, is that the plaintiff’s mental disorder has worsened since the transport accident and the symptoms he exhibits are consistent with a diagnosis of PTSD. On the question of effects and consequences of the mental disorder caused by the transport accident, he thought that the plaintiff’s quality of life has diminished a little.
60 As I understood the plaintiff’s case, it is that the transport accident caused an evolved and worsening of his pre-existing mental state such as to have resulted in depression and PTSD and which mental disorder is manifested by way of pain and suffering consequences and interference in the enjoyment the plaintiff previously derived from everyday life, and that it is this constellation of consequences, that I should assess as a severe long term mental disorder or disturbance by way of an aggravation injury.
Associate Professor Doherty’s three reports and alternative diagnosis and analysis
61 A substantial basis for an alternative analysis relied on by the defendant finds its resonance in the reporting by Associate Professor Doherty who examined the plaintiff at the request of the defendant initially on 21 March 2018. He ultimately provided three reports, the first of which is dated 30 April 2018.[51]
[51]Exhibit D1.
62 The plaintiff told Associate Professor Doherty on examination that despite what was then about two and a half years since his son’s death he had never been the same. He explained that he had enjoyed a good life with his first wife and lost her to cancer only to get his life back together when he remarried and then to have lost his son. He told Professor Doherty he was very sad. He said that sometimes after visiting the gravesite he would wish to never go home. He said he would visit his son’s grave and also that of his first wife once or twice a week. Professor Doherty noted the plaintiff was very nervous and irritable on presentation, but he was not seeing a psychologist or psychiatrist. The plaintiff said he had become forgetful since the death of his son.
63 Professor Doherty asked the plaintiff about the children of his marriages, however, the plaintiff singled none of them out and made no mention of Mohammed (the incident with Osama having yet to occur).
64 Professor Doherty thought that the plaintiff had suffered a psychological reaction to the sudden death of his son. He diagnosed an adjustment disorder that was followed by a predominantly depressed mood and, therefore, to that extent, his diagnosis accorded with Dr Rigby’s and Dr Al Humrany’s. He mentioned that the plaintiff appeared to have experienced a prolonged bereavement or grief following the death of his first wife, but he was not receiving any psychological or psychiatric treatment when the death of his son occurred. Of course, the plaintiff had been on antidepressant medication for decades at the time of Yousef’s death.
65 Professor Doherty described the plaintiff as presenting with features of persistent grief following Yousef’s death. Although he noted the presence of some “mild features of traumatisation”,[52] he did not think they met the criteria for PTSD, contrary to the opinion of Dr Epstein. Professor Doherty thought there might be some evidence of cognitive decline, but that it was difficult for him to assess due to language barriers.
[52]Exhibit D1, DCB 10.
66 The plaintiff was re-examined by Professor Doherty on 7 October 2019 and he provided a second report dated 9 October 2019.[53] He found that in all important respects the plaintiff presented and reported to him essentially as he had on his initial examination in March 2018.
[53]Ibid, DCB 16-26.
67 Associate Professor Doherty furnished a third report (and prepared without examination of the plaintiff) dated 31 October 2019.[54] It had been called for by the defendant following on the report on examination conducted by Dr Epstein who had obtained a partially different and additional history from that which had been recorded by Professor Doherty. Because of this different history Professor Doherty wrote that:
“It is clear to me from all the now available information that the claimant’s psychiatric complaints are now significantly contributed to by non-transport accident factors and that there was pre-existing psychiatric problems, persistent use of antidepressant medication prior to the transport accident, and another cause, the charging of a son, for a deterioration in his mental health. The claimant’s history as given to me is unreliable. He has not been candid with me.”[55]
[54]Ibid, DCB 27-31.
[55]Ibid, DCB 30.
68 It appears that despite the plaintiff having been invited by Professor Doherty to disclose any external factors unrelated to the transport accident affecting his emotional health, he did not tell him about the arrest on a murder charge of Osama that had occurred earlier in the year and neither did the plaintiff disclose the violent conduct engaged in by Mohammed and committed before Yousef’s death.
69 In my judgment, it is not a sufficient answer, at least to the matter of Osama, to suggest that it was something that the plaintiff had discounted as having affected his emotional health in terms of causing distress, and therefore, it was explicable that he made no mention of it, because of course, the plaintiff said in his evidence that it did cause him distress, and it was also regarded by Dr Epstein as perhaps having amounted to an exacerbation of the plaintiff’s already existing symptoms that had been caused by the transport accident. On the other hand, I think that the plaintiff’s omission in mentioning to Professor Doherty the incident of Mohammed is less obvious because, for example, although Dr Epstein was aware of it, he did not rank it at all as part of his assessment. Professor Doherty after becoming aware of it from Dr Epstein’s report, only addressed it obliquely when he commented there was a “persisting pre-existing psychiatric impairment.”[56]
[56]Exhibit D1, PCB 29.
70 At all events, the ultimate question in a matter such as this, is not one left to be answered by choosing between differing medical opinions or a mathematical toting up to determine if there is a greater number to support an applicant than do not or by fine dissections of language employed in reports. What is of greater relevance about the different accounts given by the plaintiff is that sometimes, in cases involving impairments to the mind, the reliability of a history may be of considerable importance, whilst, in other instances, be less so. Each case must be considered on its own revealed facts. On this occasion, the plaintiff’s history, as recounted to the independent medical examiner to whom he was sent by the defendant, was incomplete and incorrect. It was incomplete as to two matters of personal history. One incident occurred some months before Yousef’s death and the other occurred approximately three and a quarter years later. It was incorrect because it was a history that included untruthful answers by the plaintiff to questions about the extent of and state of his previous mental health. I need to address in some detail these two incidents.
Mohammed
71 Dr Epstein recounted how in mid-2015 Mohammed demanded his share of the family home and when denied his request he inflicted damage on the plaintiff’s car, his wife’s car and the car of a friend. Dr Epstein wrote that Mohammed drew a knife on the plaintiff’s wife, with the police having been called by which time Mohammed had gone.[57]Dr Epstein went on to say that Mohammed later returned and threatened him and his wife again with a knife, the police once again being called whereupon Mohammed was arrested. Subsequently the plaintiff’s wife took out an intervention order against her stepson. The plaintiff told Dr Epstein that he thought Mohammed had been imprisoned although he wrote that the plaintiff “appears to have had no contact with him since then.”[58]
[57]Exhibit P10, PCB 59.
[58]Ibid.
72 The plaintiff’s evidence under cross-examination was very different from the account from Dr Epstein. He said that Mohammed had become agitated and then left the house and when asked by Mr Ruskin if he had shouted or banged his hand or anything similar, he said “No. He left the house and he didn’t do anything.”[59] However, he added that others who were sitting outside his house and from whom he heard reports had observed that Mohammed had damaged the car and the windows to his wife’s car and damaged the tyres as well. He told Mr Ruskin that this was the first occasion Mohammed had caused such trouble. He said, “the stepson doesn’t like his stepmother.”[60] He disputed that his wife had told him that Mohammed had done anything to her when he was asked by Mr Ruskin. He then said he could not remember if his wife had told him that she had been threatened with a knife. He said the police came to the home and looked at the cars where the damage had been done and he thought the police had been telephoned either by his daughter or his wife. He said by the time the police arrived Mohammed had gone.
[59]T32.
[60]T33.
73 Mr Ruskin directed the plaintiff to Dr Epstein’s report of being told by him that Mohammed had returned and threatened the two of them with a knife.[61] The plaintiff denied that he had been threatened by his son with a knife.
[61]T34.
74 The plaintiff said that although Mohammed had not returned to the family home, he had sometimes bumped into him in the street and been asked for some money and he would occasionally lend him $50 or so.[62] That evidence is, on its face, inconsistent with the impression gained by Dr Epstein that the plaintiff had not had contact with Mohammed since.
[62]T36.
75 In my judgment, the plaintiff’s account of the domestic confrontation with Mohammed and the account of it by Dr Epstein are not reconcilable. Nor is the plaintiff’s account of the incident reconcilable with the account of it given by his wife in her application.
76 I have considered whether the plaintiff’s answers contradicting the account by Dr Epstein might be explicable by a possibly overly literal understanding on his part of the questions asked of him by Mr Ruskin, but after having reviewed the evidence, I am not persuaded that accounts for it. I have also considered if the matter of the plaintiff’s cognitive functioning alluded to as a possible concern by Associate Professor Doherty in his reporting might provide some explanation. I was not addressed on that by the plaintiff’s counsel and accordingly, I have drawn no conclusion about it.
77 I am satisfied that an objective assessment of the episode of family violence involving Mohammed would have been confronting and upsetting. In cross-examination the plaintiff said, “I think of that every now and then, but you know that we have taken an intervention order against him and he’s away from home now”.[63]
[63]T50.
78 The plaintiff’s evidence does suggest that he has adopted a somewhat matter of fact view of this episode after the passage of almost five years. However, it appears to me, that the fact of the confrontation involving the plaintiff’s son being of such a degree as to have involved a threat with a knife, the involvement of the police, the apparent arrest of Mohammed when he returned on a second occasion and the taking out of an intervention order by the plaintiff’s wife of a very lengthy period of time together with the estrangement of his son from his life is far from insignificant. I am satisfied that it very probably amounted to an exacerbation of some degree of the plaintiff’s existing depressed mental state that he had been carrying since the death of his first wife.
79 The plaintiff’s evidence about Osama was also unpersuasive on a number of fronts. Osama was involved in a gang dispute outside a boxing event on 1 March 2019. The plaintiff’s evidence about the arrest, remand and charges laid was another unsatisfactory example concerning his evidence. The plaintiff’s answers in cross examination about his understanding of what accounted for his son’s arrest was variously explained and included that he had gone to gaol “Because they accused him of few things…” or that he had been accused of an “issue in the city. They took him and the matter is still being investigated” and that he didn’t know what it related to other than that “they were watching boxing and there were troubles” culminating with the police taking him “to the remand centre and since then we have been into courts.” When asked by Mr Ruskin if the police explained why Osama had been arrested, he said, “I have no idea”. When he was asked by Mr Ruskin if he has been very upset that his son has been put in gaol, he answered: “Of course. I am not happy. No one would be happy if his son goes to jail, especially when there is no proof whether he did so in such or not.”[64] The plaintiff said that his son had been held in custody in the Melbourne Remand Centre since about April 2019. He said that his wife visits him weekly, but he has not seen him because, according to his account given to Dr Epstein, “the security and delays involved in seeing him distress him but he would like to see him.”[65]
[64]T39.
[65]Exhibit P10, PCB 63.
80 Mr Ingram’s efforts to favourably interpret the plaintiff’s answers and attempt to divine from them a sufficient semblance of accuracy by way of responses to Mr Ruskin’s questions so as to suggest that they passed muster was unpersuasive. However, I am not satisfied that the plaintiff intended to deliberately give false evidence on the matter.
81 Another example of the unreliability of the plaintiff’s evidence is that on the occasion of seeing Associate Professor Doherty on 31 October 2019 and having been asked whether prior to Yousef’s death he had obtained any psychiatric treatment, he answered “No,” and he went on to tell Professor Doherty that before Yousef’s death, “there was nothing wrong with me”.[66] Although the plaintiff’s answer was untrue, I think it may be explicable by reason of the very many years that had elapsed since he had obtained psychiatric assistance as a result of the death of his first wife.
[66]Exhibit D1, DCB 29-30.
82 The plaintiff’s course of antidepressant medication prior to the death of his son was a matter of considerable cross-examination by Mr Ruskin. On this issue too, there is a fundamental inconsistency between the plaintiff’s evidence and the facts. Despite having deposed in his affidavit to taking antidepressant medication in connection with the death of his first wife, when he was questioned on the topic by Mr Ruskin, the plaintiff said he “did not take any antidepressants until my son died.”[67] He was asked again by Mr Ruskin whether as a result of his first wife’s cancer had he commenced to take antidepressant medication, he said “I did not have any antidepressants prior-neither during nor-neither during, our, the sickness my previous wife not after – ah- or normal when she died.”[68] When pressed by Mr Ruskin if he had taken antidepressant medication following the death of his first wife, he replied, “I did not take any antidepressants when my wife was sick.”[69] He was asked whether he took antidepressants following the death of his wife for a period of about a period of two years and he said, “I didn’t take any antidepressants around that time.”[70]. When it was suggested to him by Mr Ruskin that he had taken antidepressants at about that time he said, “as you are speaking-I can’t remember whether I had-whether I took antidepressants or not.”
[67]T22.
[68]T23.
[69]T23.
[70]T13.
83 Mr Ruskin directed the plaintiff to an answer he gave to Mr Ingram, when at the commencement of the hearing, he had asked him if his affidavits were true and correct, to which he replied, “I did write what happened with me.”[71] The plaintiff said, “There was a possibility that I didn’t feel the best after the death of my wife, but I can hardly remember whether I was on antidepressants or not.”[72] As to whether his deposition in his affidavit that his psychiatric symptoms arose in the context of the death of his first wife was true he answered, “Probably.”[73] When that question was put again, he said, “I can’t remember.” When Mr Ruskin asked the plaintiff if he agreed that because he had said so in his affidavit, then it would likely be true, he said “I don’t read English as well.”[74] Mr Ruskin reminded him that the affidavit attested to having been interpreted to him and he responded, “But the interpreter has not read each line of this affidavit.”[75]
[71]T24.
[72]T24.
[73]T25.
[74]T25.
[75]T85.
84 The plaintiff said that after he met his second wife in 1993 his mood improved.[76] When asked about that part of evidence in his affidavit that he had continued to take antidepressants but at lower dosages he said, “To tell you the truth, I can hardly remember.”[77]
[76]T26.
[77]T26.
85 The plaintiff was asked about the circumstances prior to his son’s death when he had consulted Dr Al Humrany, whereupon, he denied that he had.[78] He then said, “Yes, that is possible”[79] but then said, “I can’t remember.”[80] When it was put to him by Mr Ruskin that if such a thing had been included in his affidavit, as it had been, it would likely be correct, he answered, “Well, that depends upon who wrote the affidavit.”[81]
[78]T27.
[79]T27.
[80]T28.
[81]T28.
86 On some relevant questions, the plaintiff specifically denied matters to which he had positively deposed and had accepted as true and correct. I have tried to reconcile the fact that in some instances it made no sense at all for the plaintiff to have denied matters put to him in cross-examination given the objective corroboration that existed for so many of them. I have considered whether some of the uncertainty the plaintiff exhibited, and inconsistencies in his answers might have been due to him not having been furnished a detailed translation of his affidavits at the time they were prepared by his solicitors and required to be sworn. However, I cannot speculate as to a reason in the absence of evidence and neither can I attribute favourable explanations to account for the substantial unreliability of the plaintiff’s evidence in the absence of explanation. It simply was, in parts, inexplicable.
87 I have also considered whether the plaintiff intended to diminish other stressors he has encountered by way of upset and distress occasioned to his mental and emotional condition both before and since the transport accident caused by the conduct of other of his children. On balance I am not satisfied that he did. I did not asses him as sophisticated enough to appreciate the potential advantage to his application in doing so. Regardless of his intention, the plaintiff certainly gave evidence that was on occasions unreliable and wrong. In final address, Mr Ingram acknowledged that “at certain points his evidence was all over the place….and that’s an unsatisfactory situation.”[82] I adopt counsel’s characterisation of the unsatisfactory effect of the plaintiff’s evidence.
[82]T125.
88 In reaching the conclusion that the plaintiff’s evidence was unreliable, I am mindful that some of the matters he was directed to, and was required to answer, involved the circumstances of the loss of his son. When in the course of re-examination, he was asked to specify the impact on him of his son’s death, his grief was palpable. It is explicable that in the context of a court hearing where of necessity that event was revisited, the plaintiff would experience emotional upset.
89 I have also considered the plaintiff’s evidence bearing in mind the difficulties that can sometimes occur when there are cultural and religious differences and language limitations, even when as was the case, the plaintiff’s evidence was given through a qualified interpreter. However, despite having made some allowance for these difficulties they do not make good what has been the variable and unsatisfactory nature of a good deal of the plaintiff’s oral evidence. Nonetheless, I have taken into account that the plaintiff is now old, and perhaps his ability to give reliable evidence is a little diminished. He is deeply troubled by the death of his son and I anticipate too by an unfairness he perceives that life has meted out to him.
The application of legal principle
90 It is trite that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident: Petkovski v Galletti.[83]In accordance with the principles in Petkovski, because the plaintiff accepted that he had a pre-existing mental condition (and according to the plaintiff’s own independent medical examiners, one that had not completely resolved at the date of the transport accident), it is the consequences of any aggravation to his pre-existing condition caused by the transport accident which falls to be assessed. As the Appeal Division of the Supreme Court held in Petkovski, in the case of a pre-existing condition, “an analysis must be made of the extent of impairment of a body function before and after the relevant injury” and the claimed aggravation must itself be a “serious injury”.[84]
[83][1994] 1 VR 437.
[84][1994] 1 VR 437, 444.
91 It is impermissible for me, for example, to commence the analysis required by taking the pre-existing effects on the plaintiff of his mental condition that had been caused by the death of his wife in 1991 and add to it any exacerbation caused by the mid-2015 episode involving Mohammed and then add the effects of the transport accident in November 2015 and any subsequent exacerbation caused by Osama’s arrest in late 2019[85] to thereby conclude that in combination he now suffers from a severe mental disorder that meets the requirement for a serious injury. Instead, I must be affirmatively satisfied, on the balance of probabilities, with the burden of proof on all matters being borne by the plaintiff, of an injury having been caused by the transport accident. I must then determine the consequences of that injury to the plaintiff, by comparing his condition before and after the injury. If I can be satisfied that the additional impairment occasioned by the aggravating effects of the transport accident is “serious” or “severe” (as pertains in this application) and long term, then the plaintiff will have demonstrated that he is suffering from a “serious injury” under the Act. As said by the Court of Appeal in De Agostino v Leatch,[86] this must involve a question of causation. Whilst the application of common sense does not in all cases reveal the answer about cause, it can be illuminating.
[85]However, if the plaintiff already having suffered a serious aggravation injury caused by the transport accident and that the Osama incident in March 2019 exacerbated it then that would not necessarily preclude the plaintiff succeeding.
[86][2011] VSCA 249.
Severe
92 Despite the terms “serious” and “severe” not being defined in the Act it has long been accepted that the question of whether an injury is “serious” for the purposes of s 93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries & Anor v Polkak:[87]
“To be “serious” the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: Can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as “very considerable” and certainly more than “significant” or “marked”?”[88]
[87][1992] 2 VR 129.
[88]Ibid, 140 (Crockett and Southwell JJ).
93 As to the meaning of “severe,” the judgment of the Court of Appeal in Mobilio v Balliotis,[89] refined its meaning and without suggesting the use of any adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition is a stronger word than “serious.” Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe”, where used in sub-paragraph (c) of sub-section 93 (17) of the Act, was a word of stronger force than the word “serious”. Phillips JA and Charles JA made comments to like effect.
[89][1998] 3 VR 833 see also: Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Katanas v TAC [2016] VSCA 140.
94 Accordingly, and by applying the above guidance, in order for me to be satisfied that the consequences of a mental disturbance or disorder are severe, I must be able to conclude that those consequences are more than very considerable to the plaintiff: see Noonan v State of Victoria.[90]As was said in Humphries, the application of the narrative test revealed a two-stage process:
(1)an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, “serious” or, in the case of mental or behavioural disturbance or disorder, “severe”, and
(2)a determination of whether the injury as thus assessed is objectively “serious” or, in the case of mental or behavioural disturbance or disorder, “severe” when compared with the range or “spectrum” of comparable cases.[91]
[90][2013] VSCA 289.
[91][1992] 2 VR 129, [40].
95 I have gone about assessing the matter by considering the consequences of the injury being serious to the plaintiff and also whether objectively and fairly it may be described as severe and, therefore, serious when judged by comparison with other cases in the range of possible impairments. This exercise requires me first, to identify and, next, to bring to account all relevant circumstances personal to the plaintiff. I must then make a value judgment in accordance with the principles enunciated in Humphries and giving to each identified relevant circumstance, the weight which, appears to me to be appropriate.[92]
[92]Katanas v Transport Accident Commission [2016] VSCA 140.
96 I have also applied the observation of Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd[93] who pointed out that the task of assessing the pain and suffering consequences of an injury, is largely a question of impression and value judgement.
[93][2007] 17 VR 592, 628.
97
Next, as set out in section 93 (17) of the Act, in addition to being serious,
I must be able to conclude that the relevant injury is “long-term.” There was no substantial issue raised by the defendant about that requirement.
98 My assessment whether the plaintiff’s injury is “serious” is to be done at the time the application is heard. Section s 93(6) of the Act, states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury “is at the time at which the application is heard”, a serious injury for the purposes of the Act.
Has the plaintiff stripped away the consequences of the non-transport accident injuries?
99 The incident concerning Mohammed occurred reasonably shortly before Yousef’s death whereas the arrest of Osama came some nearly five years after the transport accident. I consider the death of the plaintiff’s first wife in 1991 and the death of Yousef in November 2015 as each being of a qualitative nature different to the incident of family violence and damage to the plaintiff’s home and of the property of his wife by Mohammed in mid-2015 and the subsequent arrest and charging of Osama in March 2019 with murder. I am satisfied that the effects on the plaintiff’s mental state at the time of the transport accident in 2015 from the loss of his wife in 1991 was still ongoing but moderate. Its effects on him and his depressed mood from it seem to have been managed sufficiently enough by his ongoing use of antidepressants.
100 Dr Epstein explained his diagnosis by writing that the transport accident of November 2015 precipitated a period of acute grief that has been exacerbated and subsequently manifested itself as a “Persistent Depressive Disorder”. Dr Epstein also diagnosed the plaintiff with PTSD “characterised by recurrent intrusive thoughts about his son, distress with reminders of his death and concerns about the safety of his family, hypervigilance, emotional withdrawal and a sense of bleakness.”[94] As to the role played by the other traumatic events involving his other sons, Dr Epstein was silent about Mohammed, but of the effects occasioned by Osama, he said that “All of these symptoms were present prior to the incident involving his son, Osama on 1 March 2019 and may have been exacerbated by his distress over his son’s incarceration.”[95]
[94] Exhibit P10, PCB 67.
[95] Ibid.
101 Associate Professor Doherty said that a feature of a depressed mood is that it fades over time and he thought there to have been some evidence of this as reflected in the length of time the plaintiff had gone without psychological or psychiatric assistance. He thought that the plaintiff also exhibited features of persistent grief and mild features of traumatisation. As to the plaintiff’s treatment he noted in his first report that the evidence was indicative that the “claimant improved and the adjustment disorder faded, as is its natural history, after the transport accident”. He said that the plaintiff’s mental condition had suffered an exacerbation related particularly to the arrest of Osama on a charge of murder and that was followed by an intention to return to see Ms Francis, which of course, the plaintiff did between July and September 2019. I do not agree that the evidence supports a conclusion that the plaintiff improved or that the consequences he was experiencing faded after the transport accident.
102 The diagnosis of a mental disorder as well as the severity of a disorder will almost certainly be heavily informed by the history given, its reliability so far as it is accepted, and of symptoms and consequences. I have remained conscious that as a matter of principle, a psychiatric disorder, may have severe consequences even though the sufferer has not undergone much treatment. Equally, the fact itself that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms and consequences of the disorder properly called for that level of treatment. I have borne those injunctions in mind in light of the unsatisfactory nature of a good deal of the plaintiff’s evidence under cross-examination.
103 I am satisfied that the plaintiff’s mental condition before the transport accident in November 2015 was that of a mild depressed mood, but it had not manifested itself either by symptoms or consequences in the plaintiff’s life that were severe to him or could be adjudged as such on an objective basis. For example, there is an absence of evidence of any attendances or treatment being required by the plaintiff following on the incident with Mohammed in about mid-2015 and prior to his attendance on Dr Yacoub in January 2016, which was reasonably soon after the death of Yousef in November 2015.
104 Whilst it is not permissible to surmise in the absence of evidence that the consequences of the plaintiff’s depressed state prior to the transport accident was likely to increase or worsen[96] nonetheless, the absence of evidence of the plaintiff’s pre-transport accident prognosis does not of itself mean that I am unable to assess the plaintiff’s mental state just prior to the transport accident, provided there is evidence before me which permits me to make the relevant findings. I am satisfied that such evidence exists.
[96][1994] 1 VR 437, 439 [26]-[30] (Southwell and Teague JJ).
105 The treatment the plaintiff obtained over the years since 1991 and prior to the transport accident in November 2015 does not seem to have been substantial and based on the evidence appears to have consisted of a referral to Dr Al Humrany by Dr Yacoub and the prescribing of antidepressant medication, the dosage of which was said to have reduced over a reasonably short period of time, and although the evidence was unclear precisely when this occurred, it was perhaps after approximately, two years. Although reduced, nonetheless, the plaintiff’s use of antidepressant medication continued to be prescribed because, according to him, it helped him do those things he needed to do as the head of a large extended family. He remained on his antidepressant medication after remarrying in 1995. Beyond a continuing course of an apparently low dosage antidepressant medication, the evidence does not identify anything else by way of a need for clinical treatment by the plaintiff in the many years following the death of his first wife and the transport accident.
106 In addition, following the death of his first wife, the plaintiff appears to have been able to manage his loss and build a life that incorporated some renewed happiness brought about by his second marriage together with the impetus to father a second large family of children. The plaintiff appears to have been functioning well enough and largely unimpeded in the pursuit of his day to day domestic and personal life prior to the transport accident, including making pilgrimages in accordance with the demands of his religion. Therefore, there is no evidence to indicate that absent the transport accident, the plaintiff’s previous depression would have worsened or deteriorated.
107 I am also satisfied that the plaintiff’s pre-existing depression and emotional vulnerability was exacerbated by the domestic dysfunction with Mohammed in mid-2015 and that in all probability it caused upset and distress. However, I am not persuaded that it was of such moment as to have warranted a change in his medication or the attendance for treatment or counselling, but that if it did leave an ongoing impact, it too appears to have been managed sufficiently by the plaintiff within his existing medication.
108 I find that the transport accident in November 2015 did cause an aggravation of the plaintiff’s previous depressed mood and was not merely another exacerbation to it. I am satisfied that following the transport accident, the plaintiff initially experienced typical grief in response to the tragedy, but I am also satisfied that the grief took root and developed beyond grieving to a chronic adjustment disorder with symptoms consistent with traumatisation. In this regard, I prefer and accept the opinion and diagnosis of Dr Epstein to that of Professor Doherty.
109 I am satisfied that the plaintiff has received limited treatment or medication after Yousef’s death. The plaintiff’s immediate clinical history following the death of Yousef occurred essentially over the course of a about a year and a half and substantially in 2016 and comprised ordinary attendances on his treating general partitioner Dr Yacoub for a variety of his medical ailments and one attendance with Dr Al Humrany in April 2016. He was prescribed Zoloft and he underwent six counselling sessions with Ms Francis involving cognitive behavioural therapies. There was no attendance by the plaintiff on Dr Yacoub for treatment from the effects from Yousef’s death for a lengthy period of time from between January 2017 and April 2019. I have taken into account favourably from the plaintiff’s standpoint Dr Yacoub’s report dated 15 February 2019, when he wrote that he “kept seeing Khaled for his medical conditions, and offered him counselling after Yousef’s death, as each time I saw him, he felt hopeless, helpless, pale, not sleeping, not eating, very emotional, and with poor concentration.”[97] Dr Yacoub’s progress notes of consultation on 15 October 2016 included under the plaintiff’s history that he is “still very upset, stressed out, anxious” and that he was seeing a psychologist (presumably an intended reference to Ms Francis) for counselling and was prescribed Zoloft 50 mg, once daily. A surgery consultation note dated 16 February 2017 referred to a referral having been made to Ms Francis for counselling. The final progress clinical notes from Dr Yacoub are dated 24 April and 30 April 2019. The former entry reports a history of the plaintiff being still very upset, depressed, angry, still crying for his son and Dr Yacoub’s advice that he see a psychologist and a recommendation of an increased dose of Zoloft from 50 mg to 100. I am satisfied that the treatment from Dr Yacoub reflects what one might expect from a treating general practitioner in the circumstances of the plaintiff’s presentation, and whilst his record is not that of a specialist in mental conditions, his notes do reveal the fact of the plaintiff presenting with a continuum of ill effects from the transport accident.
[97]Exhibit P4, PCB 37.
110 I am satisfied that the incident with Osama very likely amounted to an exacerbation of the plaintiff’s mental state that had however by that time already been aggravated in the required sense by the transport accident and so in that regard, I agree with the view expressed by Dr Epstein. I am also satisfied that the additional sessions of counselling conducted with Ms Francis between July and September 2019, although having occurred in time after the arrest of Osama in about March 2019, refer to her counselling being directed at the plaintiff’s grief about Yousef and not Osama.
Whether aggravation severe
111 I am for the reasons expressed satisfied that the transport accident did constitute an aggravation of the plaintiff’s pre-existing mental state. Has, however, the aggravation itself caused a serious injury?
The plaintiff before and after the death of his son
112 Both logically and by reference to authority, in determining whether the consequences of an aggravation of a mental type injury are severe, a consideration of what the plaintiff has been precluded from doing and also those things he has retained a capacity to carry out and perform before the aggravation, whilst not being determinative of an outcome, can be instructive.[98]
[98]Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260.
113 Mr Ruskin submitted that the aggravation to the plaintiff’s pre-November 2015 mental condition caused by the transport accident has not brought with it consequences to the plaintiff that are more than very considerable and thus severe. Mr Ruskin contended that the plaintiff engages in essentially the same activities he did before the transport accident.
114 The plaintiff deposed that family activities were an important part of his life and that since Yousef’s death he finds that birthdays and anniversaries serve to remind him of his loss, and they are “difficult occasions for me.” It is understandable that a parent would find such occasions revive distressing emotions and difficult to get through. However, in a family as large as the plaintiff’s, the occasion of such reminders is very probably considerable. The plaintiff said he no longer derives enjoyment from family gatherings but that as head of his family, but he feels only a sense of duty to participate in them.
115 The plaintiff described having been being very close to Yousef. He would drive him to and from school and his death has left a gaping hole in his life. I accept that is the case. He said his motivation and level of interest in what is going on around him are greatly reduced. The plaintiff described a poor memory and an increasing forgetfulness since Yousef’s death and a reduced ability to concentrate and a diminished appetite. There is no evidence connecting his mental decline to the effects of the transport accident. There is an indication alluded to by Professor Doherty of a possible cognitive cause. I draw no conclusion either way from it. The plaintiff said that his sleep patterns are variable and that he experiences good nights and bad nights. He may take hours to fall asleep and when he does, he will waken during the night. He reported to Dr Epstein that he has racing thoughts about his son’s death and also about Osama, of whom, he “continues to be very distressed…”[99]. The plaintiff however described experiencing nightmares about once or twice a week involving Yousef in hospital. Dr Epstein recorded that he may have no nightmares “for a few weeks.”[100] The difference in frequency is, I think, less important than the fact that they are continuing to occur and impact the plaintiff. I am satisfied that his nightmares and their content are distressing. The plaintiff does not do any housework but does do the gardening and in that sense his life is much as it was. The family entertains relatives and friends once or twice a week. He maintains his religious observances but to a reduced extent. Overall, the evidence suggests that the plaintiff retains a considerable degree of everyday functionally. However, his days are very largely marked and attendant with grief, and the periods of time when he is not beset by the memories and distress associated with the accident, permit him to enjoy something akin to his former life but not the same as the life he led and enjoyed before the transport accident.
[99]Exhibit P10, PCB 64.
[100]Ibid.
116 He says he is constantly worried about the welfare of his surviving children and grandchildren. He avoids travelling anywhere near the site of the accident. I accept these are understandable consequences and consistent with the diagnosis by Dr Epstein.
Credit
117 There are any number of
decisions that address the difficulties faced by a trial judge when evidence on relevant matters is false. Mr Ingram directed me to a number of authorities in support of his argument that I should not be so swayed by the unreliability of the plaintiff’s evidence, much of which I have documented, such as to lose sight of the objective evidence in support of his application. Whilst I have not found that the plaintiff gave deliberately false evidence, I have found his evidence unreliable and wrong on the matters
I have identified.
118 Mr Ingram argued that the unreliability of the plaintiff’s evidence were matters of “confetti”.[101] I am unable to accept that characterisation. The matters raised were more important than warranting that description. However, I am satisfied they are not determinative. It seems to me that the more pertinent point is this: having concluded that the plaintiff’s pre-transport accident mental state was relatively benign, save for the continuing and ongoing pre-existing anti-depressant medication, the plaintiff’s incorrect answers to questions put to him in cross examination about his course of medication or of his historical attendance on Dr Al Humrany in consequence of that stressor may be sufficiently put aside. Next, having found that the transport accident caused an aggravation of the plaintiff’s previous but relatively benign mental state, and the matter involving Mohammed having occasioned no more than an exacerbation, the plaintiff’s wrong and unreliable accounts about it have no work to do in forming a judgment whether the consequences detailed by the plaintiff and caused by the aggravation injury are more than serious and therefore severe. I am satisfied that I have been able to undertake the exercise required of me sufficiently by bringing to bear my judgement about the consequences relied on by the plaintiff from the transport accident and that judgment not having been undermined by the unreliability of the plaintiff’s previous evidence on the other matters that I have addressed. That is also the case as relates to the divergent account of events involving Osama.
[101]T125 (a description counsel adopted as applicable to the contested evidence of both plaintiffs).
119 Naturally, an important part of my exercise is the capacity to be able to place reliance on the account given by the plaintiff of the consequences that the loss of his son has had, and continues to have, upon him. I do not think, and I have not been persuaded, that the fact of his wrong answers or his account of the Mohammed incident and the account of the subsequent Osama incident or to doctors concerning his past regime of treatment is sufficiently probative as to set at nought the acceptance by me of the evidence the plaintiff has given about the effect on his mental functioning the death of Yousef has had. I accept his word in the account he gave me on the consequences he has been left with and caused by the death of his young son. The account is one that identifies more than very considerable pain and suffering consequences suffered by him and, moreover, consequences that have not receded as one might expect in an ordinary response to grief. Instead, the plaintiff has been left with consequences that include more than a very considerable degree of pain and suffering by way of an interference with his domestic and family life, his sleep, his waking hours and, overall, a reduction in the enjoyment of his life as well as medication specifically prescribed for his condition. That account is one that I have assessed as well falling within the range of cases when objectively assessed.
Disentangling
120 Finally, this case is not one that has called for disentangling. As the Court of Appeal has said in Noori v Topaz Fine Foods Pty Ltd[102]:
“… no question of ‘disentanglement’ arises under para (c) of the definition of serious injury. As the decisions of this Court makes clear, - ‘disentanglement’ is a task which arises – if at all- only in relation to para (a) of the definition. That is, where the application is based on the ‘permanent serious impairment or loss of a body function’, the court is obliged – by s 134AB (h) – to exclude from consideration ‘the psychological or psychiatric consequences of a physical injury.’ Where necessary, that will require the ‘disentangling’ of the psychological consequences of the injury from the physical consequences.”[103]
[102][2018] VSCA 323.
[103][2018] VSCA 323, 325 [5] (Maxwell P, Hargrave & Forrest JA).
121 Whilst there is no equivalent to s 134(AB) (h) or the like provision under the Workplace Injury Rehabilitation and Compensation Act 2013, s 93 (17) does, as I pointed out at the commencement of my reasons, distinguish between injuries with physical consequences which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The enquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a).
Conclusion
122 What I have been required to identify is if the plaintiff suffered an injury caused by a transport accident. I have determined that he did. Secondly, I was required to determine if the injury amounted to an aggravation injury. I am satisfied that it did because it caused the plaintiff’s largely mild pre-existing depressed state to become that of a chronic adjustment disorder with depressed mood together with PTSD. It has required relatively mild treatment and limited intervention with medication. However, the treatment, including counselling from Ms Francis, although intermittent, has been required over the years since Yousef’s death and the support afforded him over the many years since the death of his son by his treating practitioner are important. The point made by Dr Epstein that one may not be able to expect improvement over the long term for a man of the plaintiff’s age and taking into account the other lesser exacerbations is apt. I was required to determine if other non-transport injury factors relied on by the defendant had been stripped away or delineated by the plaintiff as the cause of the aggravation injury. I am satisfied they were. I am satisfied that the Mohammed event was a temporary exacerbation of the plaintiff’s previous depressed condition. I am satisfied that the Osama incident amounted to a further exacerbation of the plaintiff’s already seriously aggravated mental condition caused by the transport accident. Finally, and having regard to the entirety of the evidence, I am satisfied that the aggravation injury caused by the transport accident is more than serious and is severe. That conclusion was not undermined by the plaintiff’s lack of reliability on other matters about which he gave evidence. I am satisfied that the consequences the plaintiff has suffered are more than “very considerable” and, therefore, are “severe” in their impact to him and when judged according to the spectrum or range of cases for such a mental disturbance or disorder. Dr Epstein and Dr Serry and indeed Dr Yacoub, together with the objective evidence of the ongoing effects on the plaintiff is sufficient evidence that his condition is long term.
123 The plaintiff’s application by way of originating motion is granted.
124 I will hear the parties on the question of costs.
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