Armour v Transport Accident Commission
[2014] VCC 1218
•1 August 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01441
| JASON ARMOUR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 28 and 29 July 2014 | |
DATE OF JUDGMENT: | 1 August 2014 | |
CASE MAY BE CITED AS: | Armour v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1218 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – Mental Disorder – causative relationship between development of schizophrenia and transport accident – Adjustment Disorder with Anxiety – Post-Traumatic Stress Disorder – whether consequences “severe”
Legislation Cited: Transport Accident Act 1986; Evidence Act 2008, s12 and s13
Judgment: Application for leave to issue common law proceedings refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms S A Lean | Slater & Gordon |
| For the Defendant | Ms A M Magee with Ms G-J Cooper | Solicitor for Transport Accident Commission |
HIS HONOUR:
Preliminary
1 The plaintiff was involved in a frightening transport accident on 9 December 2001 when a minibus in which he was a passenger was struck by another vehicle near Geelong. The bus rolled several times and a number of people suffered injury. A friend of the plaintiff, Mr Mark Boyd, died in the collision.
2 The plaintiff suffered a number of physical injuries, in particular to his right elbow, right shoulder and right knee. However, these injuries are not the subject of this application.
3 It is clear from the evidence that the plaintiff went on to suffer psychotic, hallucinatory symptoms some time after the transport accident, and was diagnosed with a paranoid schizophrenic illness (“schizophrenia”). In addition, he has developed an Adjustment Disorder with Anxiety and symptoms of Post-Traumatic Stress Disorder (“PTSD”).
4 This is a somewhat unusual application, in that at the outset, I was required to rule as to the competence of the plaintiff to give sworn evidence, in accordance with the provisions of s12 and s13 of the Evidence Act 2008. I determined that the plaintiff was not competent to give sworn evidence, but was able to give unsworn evidence.
5 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 9 December 2001. The plaintiff claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder, being:
· PTSD
· Adjustment Disorder with Anxiety
· Schizophrenia.
6 The application is thus brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
7 The plaintiff gave unsworn evidence and was cross-examined. Further, the following witnesses attended to give evidence and were cross-examined:
· Dr Carol Newlands, consultant psychiatrist
· Ms Kathleen Armour, the plaintiff’s aunt
· Ms Norah Quaranta and Mr Pasquale Quaranta, the plaintiff’s landlords.
8 In addition, an unsworn statement of the plaintiff, affidavits from a range of lay witnesses, and medical reports from treating and consultant practitioners were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
9 As the application proceeded, it became clear the issues were as follows:
· Whether the schizophrenic illness which was diagnosed in 2004 is causatively related to the transport accident;
· If not, do the consequences of the Adjustment Disorder or the PTSD reach the “severe” level as the Act requires?
Relevant background
10 The plaintiff is now forty-two years of age. He has suffered an intellectual disability since birth. At the outset, either as a result of that disability, or as a result of the development of schizophrenia, I determined that the plaintiff was incompetent to give sworn evidence. The plaintiff’s general practitioner, Dr Wrobel, concluded that the plaintiff was unable to understand his obligation to tell the truth in the course of legal proceedings. That opinion was confirmed in the course of the preliminary application. While at no time did I find the plaintiff attempting to mislead the Court, nor to be intentionally untruthful, I found his evidence quite unreliable. As a consequence, I am unable to rely upon those aspects of his unsworn evidence, or his statement[1] unless there is independent corroboration. Accordingly, in determining the issues in this application, it is necessary to have regard to the evidence, reports and affidavits of the lay and medical witnesses.
[1]Plaintiff’s Court Book (“PCB”) 51.1
11 Ms Elaine Robb, an officer of Encompass Community Services, has known the plaintiff since 1995. She taught him at primary school. She remained in contact with him over the years in various capacities and described him as one of her more skilled students, capable of independent living and leading a productive and happy life. She went to Hong Kong with him in 1989 and in the course of his involvement with a program, Nelson Park Community Integration Annex, he worked in catering services and went on a further overseas trip to the United States in 1990. The plaintiff returned to the United States subsequently, and was unable to undertake that travel by himself. She noted the plaintiff obtained employment with “Dial-a-lunch” in 1992, which was a project for people with disabilities. She further noted that he held various employment positions with Shannon Park Industries, Sizzlers Restaurant, Dimmeys Stores, and some volunteer work. She said he was able to access and utilise public transport.
12 A number of the lay witnesses referred to the plaintiff’s pre-accident functioning. His aunt, Kathleen Armour, said that before December 2001, the plaintiff travelled to Melbourne by train and was able to be picked up from the Melbourne station, or travel to her property at Hurstbridge. She described him as a “happy, delightful, friendly and an uncomplicated person”.
13 Mr and Mrs Quaranta leased a flat at the rear of their premises in Geelong to the plaintiff from March 1996. They noted the plaintiff lived on his own and provided for himself. He received a Disability Pension, but held down several jobs. He was able to manage his own finances, pay his rent on time and go for overseas trips. He had a number of friends and various interests.
14 Mr Edward Land, Ms Armour’s former husband, said that before the transport accident, the plaintiff had impaired cognitive function, poor concentration and limited motivation. He said the plaintiff’s management skills were poor and he frequently got himself into debt. However, he described the plaintiff as a friendly and likeable person with a fairly large circle of friends. He was able to undertake employment in a sheltered environment and never exhibited any signs of psychotic behaviour, nor any form of psychological illness.
15 A co-tenant of the plaintiff at the Quaranta’s premises, was Brett Hargreaves. He moved into an adjoining flat in February 1998 and remained until February 2006. He described the plaintiff, prior to the accident, as a friendly and likeable person, working sometimes up to five days per week. He said the plaintiff was independent, coping well with his life, notwithstanding his intellectual disability.
16 According to a report of Dr Carol Newlands, consultant psychiatrist, who interviewed the plaintiff on two occasions in 2008, the plaintiff was not a very clear historian, but she obtained details of his background, including that, prior to the transport accident, he was able to undertake his own banking and handle money, that while at school he had learned to cook, clean and iron his own clothes. He enjoyed gardening. He worked initially at Shannon Park Industries doing packing and assembly work for a period of one to two years. He then obtained a position with “Dial a Lunch”, a food outlet, where he did cooking and deliveries. He worked at another food outlet and then as a trainee with McDonalds for about six months. He worked for Dimmeys’ retail outlet for a period, and then for the Geelong Disability Group for two years.
17 There is no evidence to suggest that prior to the transport accident, and aside from his integration with various community groups concerning his intellectual disability, he had ever sought psychiatric help or psychological counselling, nor suffered any psychotic nor hallucinatory symptoms.
18 The parties have agreed that the plaintiff was employed by Dimmeys over the periods from January 1997 until January 2001, and then from August 2001 until July 2004. According to the report from Dr Newlands, the plaintiff said that he was working five days a week at Dimmeys, sorting coat hangers, and was able to walk to work, which trip took approximately 30 minutes.
The transport accident and its consequences
19 The transport accident occurred on 9 December 2001. The plaintiff was a passenger in a minibus which was involved in a major collision near Geelong. One of the passengers died as a result of injuries. The bus rolled several times and the plaintiff suffered a fracture of his right collarbone, a dislocation to his right knee and a head injury. It appears likely that while he suffered a short period of unconsciousness, by the time he attended the Geelong Hospital, he was orientated and conscious, with a Glasgow Coma Score of 15/15.
20 In determining whether there is a causative link between the transport accident, and the development of schizophrenia, it is necessary to examine the impact of the consequences of the accident upon the plaintiff, and, in particular, the timing of the onset of the psychotic symptoms. I shall first examine the evidence and affidavits of the various lay witnesses.
21 The plaintiff’s aunt, Ms Kathleen Armour, swore an affidavit on 17 September 2010, and attended to be cross-examined. She said after the transport accident, the plaintiff’s mental health deteriorated markedly. She recalled in late December 2001, or early January 2002, the plaintiff telephoned her and told her that he was concerned that a “black man” was following him around and wanting to take his shoes. Further, the driver of a car was waiting to “get” him. She said the plaintiff complained of hearing voices and of the black man entering his flat through the roof. On an occasion in early 2002, the plaintiff became terrified about a shark when they were at the beach. She said the plaintiff was too terrified to catch the train to Melbourne and then to her house in Hurstbridge. She said that this behaviour was in stark contrast to the plaintiff’s personality before the transport accident.
22 In May 2008, Mrs Armour wrote a letter[2] to one of the authorities concerning her nephew’s disability. The letter referred to the plaintiff’s development history and the various difficulties he encountered in the course of that development. The letter was concerned to have a disability case manager appointed to oversee the plaintiff’s management of his affairs. In the course of cross-examination, Ms Armour disagreed, that in accordance with the affidavit of Mr Hargreaves, it was not until early 2004 that there was a mention of a “black man” in the market at Melbourne.[3]
[2]Defendant’s Court Book (“DCB”) 92-94
[3]PCB 49
23 She said it was between six to eight months from these first complaints before she and her husband took steps to arrange for the plaintiff to go to Barwon Mental Health Services. It was suggested to her that that did not occur until early 2004. She said that it might not have been until that time. She denied the proposition that it was not until late 2003 or early 2004 that the plaintiff started to complain of these psychotic symptoms. She agreed that her letter of 2008 seeking assistance for the plaintiff did not contain any reference to the transport accident nor the psychotic symptoms referred to in her affidavit. While she agreed that the plaintiff had always been vulnerable, it was over the last seven or so years he became even more vulnerable and, for example, had up to five to seven mobile telephones, with consequent large bills to pay. Further, she said, he had become more aggressive.
24 Mrs Norah Quaranta swore an affidavit dated 10 September 2010, and was cross-examined. She said she had known the plaintiff from March 1996, when he moved into a flat behind their premises. She said that within three to six months after the transport accident, the plaintiff began to have delusional episodes. On one occasion, he returned from a group outing at the Victoria Market and said a black man was following him and wanting his shoes. He said he had been watched by the driver of a motor vehicle and that the black man was attempting to come into his flat through a roof cavity. She said the plaintiff came to her door on almost a daily basis, distressed for one reason or another. She heard the plaintiff dragging furniture to barricade his door and he left his kitchen light on every night. He asked her husband on one occasion to install and extra lock, despite the building being well secured. She and her husband contacted the plaintiff’s uncle to express their concerns.
25 Mrs Quaranta further commented that since being diagnosed with schizophrenia and commencing medication, the plaintiff had gained a large amount of weight, was anxious and fearful in travelling by bus and stopped doing his own shopping. Over time, she said that the plaintiff’s delusional thoughts changed from reference to the black man, to being fearful of the public in general. She said that his personality had changed, that he was forever on edge, anxious, easily upset, fearful and isolated. She said that he struggled to make even small decisions, and had incurred considerable debt in relation to a telephone service provider.
26 Six months before her further affidavit of 16 May 2014, she said the plaintiff put a notice on his front door which read:
“To the black man, Jason Armour doesn’t live here anymore.”
27 The plaintiff sent she and her husband bizarre emails.
28 Mrs Quaranta confirmed that she wrote two letters in support of the plaintiff[4] but could not recall the dates nor the circumstances under which the letters were written.
[4]DCB 95 – 97
29 In cross-examination, despite the plaintiff describing psychotic symptoms within three to six months of the transport accident, she said the first time that she reported these matters to the plaintiff’s uncle was possibly six to twelve months later, although she was unable to be precise as to the date. It was suggested to her that given Mr Hargreaves, in his letter of 19 January 2004, described the episode with the black man as having occurred around that time,[5] that her assertion that that occurred within six to twelve months was not correct. She disagreed with this and thought the incident occurred around 2002.
[5]PCB 48-49
30 Her husband, Pasquale Quaranta, provided an affidavit and gave evidence. Generally, he supported the claims of his wife. In cross-examination, he thought that he and his wife contacted the plaintiff’s uncle a month or so after the plaintiff’s delusional statements. He accepted it was hard to recall these matters when he was asked to make an affidavit in 2010. When Mr Hargreaves’ letter was put to him, he said that he thought that it had occurred earlier, but accepted that the letter proved otherwise.[6]
[6]Transcript (“T”) 139, L3
31 By her affidavit sworn 10 March 2011, Ms Robb provided further information of the plaintiff’s behaviour after the transport accident. She said the plaintiff telephoned her a few days afterwards and made little sense on the telephone and appeared extremely distressed. The plaintiff came to her office a short time afterwards and his speech was quite shaky. She said within the first year after the transport accident, the plaintiff became very untrusting of people around him, including herself. She listed a number of changes to the plaintiff’s behaviour after the transport accident.[7] These included that the plaintiff was often very anxious, sent disturbing emails, had ceased using public transport, cancelled appointments, barricaded himself in his flat, accumulated large telephone bills, lost his self-confidence and became irritable. Generally, she said the plaintiff had changed into a different person.
[7]PCB 30-31
32 Mr Edward Land, the former husband of Ms Armour, swore an affidavit dated 24 September 2010. He said that following the transport accident, the plaintiff exhibited signs of psychotic behaviour, complaining of hearing voices. Examples of that behaviour, which he said occurred “directly” after the transport accident, included that a black man was following him and intended to kill him, that the radio and television were directing threatening comments to him, that his behaviour became erratic and he made poor decisions, and that he distrusted people. He said further, that the plaintiff made countless telephone calls and text messages.
33 The plaintiff’s co-tenant, Mr Hargreaves, provided an affidavit sworn 17 June 2014. After the transport accident, Mr Hargreaves described the plaintiff as a changed person, very shaken and traumatised. He said that within months, the plaintiff had become withdrawn. His mental health worsened, and he encouraged the plaintiff to attend the Geelong West Community Mental Health Team. He wrote a letter to that effect dated 19 January 2014.[8] The “black man” featured regularly in his discussions with the plaintiff. He also noted that the plaintiff dragged furniture to barricade his front door, and left his light on. The plaintiff became anxious, fearful and isolated. He said that the plaintiff changed dramatically from a happy, well-functioning individual, managing his intellectual disability, to a fearful, anxious and paranoid person.
[8]PCB 48-49
34 It is appropriate then to consider the treating medical and like practitioners to whom the plaintiff was referred, and their description of the onset of the psychotic symptoms.
35 Of significance is the report of the plaintiff’s former treating general practitioner, Dr Mark Savage, of 17 October 2008.[9] He said he had known the plaintiff for twelve years and said he had a borderline intellectual disability and some congenital physical abnormalities. He said:
“He presents as an affable, sociable overweight person but would quickly be perceived as grandiose, self-centred and with social faux-pas frequently evident. My instinct is that he has a rare congenital syndrome, perhaps a minor chromosome abnormality, but Mr Armour has not been inclined to pursue my suggestions that tests might be done. … .”[10]
[9]DCB 12 -13
[10]DCB 12
36 He said, further:
“Mr Armour is a seeker of new diagnoses, and has entrenched illness behaviour for secondary gain as part of his intellectual and psychiatric illness. His veracity as a witness is somewhat open to question. …
He receives ‘opinion’ from many sources, and the current conventional wisdom among his friends and support people would appear to be a desire to attribute his schizophrenia to the accident. …
Having regard to the above considerations, I cannot lend any firm support to the theory that his current psychiatric, physical and social difficulties are wholly or partly attributable to his transport accident.”[11]
[11]DCB 13
37 Further, in a letter of 25 July 2002 to the defendant, Dr Savage provided information of the physical injuries suffered in the collision and noted that the plaintiff continued to have some trauma counselling. Of significance is the fact that the letter makes no reference to any psychotic symptoms.
38 Dr Alison MacLean, described as a “Fellow in Medical Management” with Barwon Health, wrote to the defendant on 16 July 2002. From the Geelong Hospital records, she noted that the plaintiff suffered a “probable minor head injury with possible loss of consciousness at the scene of the accident and some minor retrograde amnesia”, together with physical injuries.
39 Dr Vout, an “examining medical advisor” of Health Services Australia Pty Ltd, provided a medical report dated 14 May 2003.[12] The report referred to the plaintiff’s long-term significant intellectual disability, although noted that he worked in supported employment, and was able to live independently. The report concluded that the plaintiff remained unsuitable for any full-time employment in the open market. There was no reference to any psychotic symptoms, although it is difficult to know the purpose of the report.
[12]DCB 47
40 According to a letter from Ms Glenda Laby, the plaintiff’s advocate, addressed to the Disability Services Unit of the Department of Human Services, and dated 3 December 2010, she noted she had been an advocate for the plaintiff for several years. She noted a range of “behavioural issues”, without specific reference to psychotic symptoms, although that may be explained by the fact that the report sought assistance for the plaintiff in relation to his rental accommodation and other support.
41 According to a report of Dr Kathryn Thomas, psychologist, of Uniting Care, dated 21 November 2011,[13] she said she saw the plaintiff on four occasions in 2002 and provided a range of therapy. She said that plaintiff had told her that he felt “fine” in 2002, although she went on to say that it is not unusual for symptoms of PTSD to recur sometimes years after an event. In any event, there is no reference to any psychotic symptoms by that practitioner.
[13]PCB 98
42 Dr Youn Khozouei, consultant psychiatrist with Barwon Health, provided two reports of 4 September 2009 and 4 June 2014.[14] The first report notes that he assessed the plaintiff on 3 February 2004. According to the history obtained, the plaintiff said that he had some nightmares after the accident but none anymore. Dr Khozouei said that there was evidence of some false beliefs of a persecutory nature and paranoid thoughts. He diagnosed a psychosis and prescribed anti-psychotic medication. He continued to treat the plaintiff, including in October 2004, and then not again until March 2008.
[14]PCB 89-92
43 In March 2008, the history provided by the plaintiff was about worry of “a black man” who might harm him. The plaintiff also expressed fears of getting on buses, but denied hallucinations. His anti-psychotic medication was adjusted.
44 Dr Khozouei’s last examination was in November 2008, where he said the plaintiff’s prognosis was good, as he responded well to the medication. He said:
“In my opinion there is no direct link between his injuries he sustained at the accident and his psychiatric condition or his capacity for work. His capacity for work is limited by his general vulnerability to stress, psychiatric condition, and the level of his social and cognitive functioning.”[15]
[15]PCB 90
45 In his further report of 4 June 2014, Dr Khozouei said:
“The real cause of schizophrenia is not known but it is considered that the interreaction of genetic and environmental factors play important roles in the aetiology of schizophrenia.
I understand that Mr Armour’s mother suffers from schizophrenia. A history of schizophrenia in a parent is considered a major factor in the aetiology of schizophrenia in their children. Mr Armour’s accident can be considered a non-specific stressor (a stress factor) which might have unmasked or triggered off the underlying schizophrenia like any other stressors which might play as a trigger factor. However, most people who have accidents do not develop schizophrenia and considering all factors in this case the family history of schizophrenia would be considered to have been (sic) played a far more important role than the accident.
I understand that Mr Armour is still experiencing some symptoms of a post-traumatic nature which are directly related to his accident but not the schizophrenia in which aetiology it might have acted as a non-specific stressor.”[16]
(emphasis added).
[16]PCB 92-93
46 In April 2007, a neuropsychologist, Jenny Todd, assessed the plaintiff upon referral from the Barwon Disability Resource Council. The purpose of the report would appear to be to obtain support for the plaintiff to receive a range of disability services. In relation to the transport accident, Ms Todd said that the plaintiff’s ability to cope with day-to-day situations changed significantly. She said that friends noted he had become paranoid and was hallucinating. She said that he was diagnosed with schizophrenia about eighteen months after the accident and that he noted ongoing problems with anxiety, travel by bus and that his work capacity was affected. Ms Todd concluded that the plaintiff had, at best, suffered a brief period of unconsciousness and that any brain injury would be minimal. She concluded the plaintiff’s intellectual abilities were within an extremely low range. She said:
“These results are not easy to interpret. From the available evidence it appears that Jason suffered at most a minimal or mild brain injury from his accident in 2001 and it is suggested that he is very unlikely to have suffered any significant ongoing cognitive difficulties as a result of this accident. However it is possible that some of his psychological difficulties have been triggered or at least exacerbated by the accident. Certainly the psychiatric symptomatology and also the medication that Jason is on could account for some difficulties noted on assessment, particularly in terms of concentration and perhaps then affecting memory and new learning. However, this would be unlikely to account for the change in his intellectual skills. It is not clear why there should have been a reduction in his verbal intellectual skills between the assessment in 1991 and the current assessment and there is no obvious reason at present to account for this difficulty.”[17]
[17]PCB 59-60
47 Mr David Sullivan, psychologist, treated the plaintiff from August 2008 until March 2009, and again for assessment in March 2014. In the later report, he noted the plaintiff was working two days a week in a ceramics workshop. He concluded:
“I consider that Mr Armour is an intellectually disabled man who sustained physical injuries in a motor vehicle accident on 9 December 2001, that he was subsequently diagnosed as suffering schizophrenia, that he takes prescribed medication, that he continues to suffer significant anxieties, that he is very limited in his capacity for independent living and that since the fatal bus accident in which he was involved as a passenger on 9 December 2001 he has been anxious about travelling on buses and now uses taxis for his travel.”[18]
[18]PCB 83
48 Dr Sullivan noted a number of matters about which the plaintiff was concerned and anxious, including as to stable residential accommodation, his right knee function, the distress associated with the transport accident including the death of his friend, and to be worried about the aetiology of his schizophrenia. He concluded the plaintiff suffered at least a mild intellectual disability, together with a mild to moderate Adjustment Disorder with Mixed Anxiety, which he said was in part attributed to the transport accident. He thought the Adjustment Disorder would not spontaneously remit. He thought that the plaintiff would require ongoing episodic psychological treatment over the course of his life and that the symptoms of his Adjustment Disorder would fluctuate. Mr Sullivan did not make a concluded diagnosis as to the relationship between the transport accident and the plaintiff’s schizophrenia.
49 Finally, the plaintiff’s current treating general practitioner, Dr Wrobel, provided several reports. She noted she first saw the plaintiff in September 2013. She said the plaintiff had not been able to use a bus since the transport accident, although I note the history to Dr Newlands the plaintiff did on occasions use a bus where he thought the bus was safe. She had referred the plaintiff to a psychiatrist, Dr Maud, but the plaintiff had not attended.
50 In relation to the plaintiff’s capacity for work, she said that was restricted due to his intellectual disability, and mental health issues.
Consultant psychiatric reports
51 Dr Carol Newlands, consultant psychiatrist, saw the plaintiff as the request of his solicitors in May and August 2008. She further attended for cross-examination.
52 On the first occasion, she noted that the plaintiff was not able to give a clear account of his situation which she thought might be due to the medication he was taking, and so he returned some months later. The plaintiff attended without his carer, and gave an initial history that since the time of the accident, he noted changes, including that “black men” were chasing him and that his mind was playing tricks on him. He complained of hearing voices from the television. He noted that he disliked being on small buses, although had been on larger buses which he considered safe. In her first report, Dr Newlands concluded:
“In considering Mr Armour’s account of events it would appear that he was functioning very well prior to his accident and probably at his optimum level given his disabilities. Following the accident however, he would appear to have developed a very marked psychotic condition characterised by auditory hallucinations and delusional ideation. The delusions were of a persecutory nature. He would thus appear to have fulfilled the criteria for paranoid schizophrenia. With regard to the aetiology of this condition, it is believed to be multi-factorial. Often there is a genetic predisposition but the onset of symptoms may follow environmental, social, psychological or other trauma.
In this particular case given the fact that his mother had a diagnosis of schizophrenia it is likely that he has a higher vulnerability for this condition than members of the general community. Nonetheless he was not demonstrating symptoms prior to the accident. It is therefore conceivable that the trauma had a significant impact upon him with the consequent development of his psychotic symptoms.”[19]
(emphasis added).
[19]PCB 109
53 In the course of cross-examination, Dr Newlands was taken to the notes she made at the time of the first consultation with the plaintiff, in particular the clinical notes[20] where the following appears:
“? schiz [schizophrenia] started – 1998. Kept info to self till 2005. …”
[20]DCB 73
54 At the next attendance, the plaintiff said that he had got “the times wrong” and felt that the symptoms came on straight after the accident. Although Dr Newlands was criticised in cross-examination for giving an account which suited the claim of the plaintiff, I am satisfied that she encountered the same difficulty as I did in assessing the reliability of the plaintiff’s evidence, and simply concluded that his reference to symptoms coming on in 1998 was a mistake.
55 In her further report of 29 June 2009, Dr Newlands said:
“However, I note no previous indication of his having a psychiatric diagnosis. I also note that Dr Savage feels ‘his veracity as a witness is somewhat open to question’. This of course is important since establishing a time sequence of symptom onset and correlation to the underlying accident is important if one is to raise a hypothesis that the accident was a major contributing factor with regard to the onset of his psychiatric problems.
If there is indeed any doubt about this then there must equally be doubt about the likelihood of his psychiatric condition being causally related to the accident. If it is deemed that the claimant is a reliable witness then my diagnosis would stand. If on the other hand, the reverse appears likely, then the diagnosis would of course be subject to review. I regret I cannot give any more definitive answer than this.”[21]
[21]PCB 113
56 I asked Dr Newlands about the conclusions which she had reached.[22] She said the following:
[22]T116-119
A:If what he told me about the onset of the symptoms is correct, that is they came on following the accident and quite soon after the accident, hopefully within a matter of a few weeks, then there could be a link. If it’s several years later … .
Q:There could be a link?---
A:Well there is a link, there is a link. I would go so far as to say if it comes on very soon after then I would have to accept the link. There is debate amongst various practitioners of different groups, some say is psychosis likely to follow it? Most of us I think accept it can, because this it’s a severe stressor, but we’ve never proven that beyond a shadow of a doubt, but then very little about psychiatric diagnosis can be proven beyond a shadow of a doubt, so we accept that … .
Q:I’m not concerned here so much with beyond shadow of a doubt, the law says I have to assess these matters on the balance of probabilities?---
A:On the balance of probability I would say if his symptomatology his psychotic symptoms came on soon after the accident …
Q: What do you mean by ‘soon after’?---
A: I’d like to see it within a matter of a few weeks.
Q: Within a few weeks?---
A:Yes, quite soon after. Then I would say that link is there. If we’re talking about three years, four years later then I would have to say I can’t see a link.”[23]
[23]T118-119
57 In re-examination, it was put to the plaintiff that if a number of lay witnesses spoke of psychotic symptoms “certainly within a few months after the incident”,[24] whether that would satisfy her of the link. The doctor replied:
“Well, the reporting soon after, presumably the occurrence has also occurred therefore soon after, yes.”[25]
[24]T122, L17
[25]T122, L19-21
58 The plaintiff was assessed by Dr Michael Epstein, psychiatrist, on 26 November 2010, 2 April 2013 and 11 March 2014. The plaintiff attended with Ms Laby, and Dr Epstein was provided with affidavits from the various lay witnesses. He was told that soon after the accident, the plaintiff began to display delusional and paranoid behaviours, including voices in his head. Dr Epstein noted that about eighteen months after the accident, the plaintiff was diagnosed with schizophrenia. Dr Epstein concluded that when he last saw the plaintiff in 2014, he still had schizophrenia, although his psychotic symptoms had receded considerably, leaving him with only occasional hallucinations. He said the plaintiff’s mood had improved markedly and on the final occasion, he had mild symptoms of traumatisation. These included an unwillingness to use public transport. He said:
“He also has a strong family history of chronic schizophrenic illness involving both his mother and his aunt and is constitutionally vulnerable to developing a chronic schizophrenic illness.
There did seem to be a close temporal relationship between the bus accident and his psychotic illness. Fortunately his psychotic illness has substantially improved and no longer interferes with his quality of life.
The impression gained is that he is not functioning quite as well as he was prior to the transport accident. His prognosis has improved considerably, although he does need ongoing review of medication and continuing contact with his psychologist and with his general practitioner together with assistance from his advocate and his outreach worker. At present he is working for 9 hours per week over two days and seems to cope well with this. When I first saw him he said that he worked for five and a half days per week.
It does appear that his psychiatric condition has interfered with his capacity to perform his pre-injury duties together with his concerns about using public transport. He does appear to have the capacity to do suitable employment part time taking into account his intellectual disability, his skills and work experience.”[26]
[26]PCB 144-145
59 It is clear from the opinion of Dr Epstein that the causative link between the schizophrenia and the transport accident is dependent upon the temporal onset of the psychotic symptoms.
60 On behalf of the defendant, the plaintiff was examined by Dr David Weissmann, consultant psychiatrist, in February 2010. He had available to him the report of Dr Savage and Dr Sullivan, and the records of the Geelong Hospital, but not the affidavits of the various lay witnesses. The plaintiff attended with his advocate, Ms Laby.
61 Dr Weissmann received a history of the development of schizophrenia seven years before (that is in about 2003). He made reference to a “black man”, hallucinations and delusions. He referred to hearing voices in his bedroom and loud machines. Dr Weissmann said the plaintiff’s insight and judgment were difficult to gauge. He described the assessment of the plaintiff as complex but said that, according to the information he received, several years after the transport accident, the plaintiff developed symptoms of a paranoid psychotic illness. He determined that that illness was not related to the transport accident.
62 In relation to the transport accident, he said the plaintiff had some –
“… very mild ongoing primary/non-secondary symptoms. There is some apprehension and anxiety with buses and transport. There is no reactive depression to the transport accident. He does not have a diagnosable psychiatric condition or mental injury due to the transport accident, but he has a very small amount of non-secondary impairment as mentioned.”[27]
[27]DCB 21
63 The plaintiff was examined by Dr Patrick Daniels, consultant psychiatrist, on 5 June 2014. He had available to him extensive medical material, including the clinical records of Barwon Health from 1973 to 2014.[28] The plaintiff attended with a support worker, Ms Annie Bushby. The plaintiff gave a history that in around 2004, he began to see “a black man with a ladder” trying to come into his room through a manhole. He thought someone was trying to harm him, and he heard voices. The plaintiff said that as a result of these symptoms, he was unable to continue to work and stopped his employment in 2004 or thereabouts. Dr Daniels noted the plaintiff’s history of intellectual disability and in addition, diagnosed the plaintiff as suffering schizophrenia and a Mild Adjustment Disorder with Anxiety. Dr Daniels said:
“While he appears to have developed symptoms of paranoid schizophrenia after the accident on 9 December 2001, his condition is a neurodevelopmental disorder that in males most commonly arises between ages fifteen and twenty five. While individual episodes of this disorder may be precipitated by various psychosocial stressors, it does not appear that either the emotional impact of accident or direct trauma to the brain in the accident had been of sufficient severity to result in the ongoing symptoms of his chronic psychotic disorder.
The history provided by the worker along with the corroborative information provided by his treating practitioners suggests anxiety symptoms associated with avoidance of public transport at various times since the accident, consistent with the diagnosis of a Mild Adjustment Disorder with Anxiety.
The Mild Chronic Adjustment Disorder with Anxiety appears to have been contributed to by the accident on 9 December 2001.”[29]
[28]DCB 25C-25D
[29]DCB 36
64 Dr Daniels said the Chronic Adjustment Disorder appeared to have a minor impact on the plaintiff’s social and recreational activities.
Conclusions from the lay evidence
65 In order to establish the causative relationship between the schizophrenia and the transport accident, the plaintiff relies to a significant extent upon the testimony of the various lay witnesses to the effect that the psychotic symptoms commenced within a relatively short time after the transport accident. Such is the severity of a paranoid schizophrenic illness that there would be little doubt, as conceded by Ms Magee, for the defendant, that it would constitute a “serious injury” within the meaning of s93 of the Act.
66 According to the affidavit of Ms Armour, the psychotic symptoms came on in December 2001 or January 2002. She said it was then six to eight months before she and her husband took the plaintiff to Barwon Mental Health. She said she thought this was before 2003.
67 Mrs Quaranta said it was three to six months after the accident that the psychotic symptoms appeared. She said that possibly six to twelve months later, she and her husband spoke to the plaintiff’s uncle about these symptoms. Mr Quaranta gave similar testimony in his affidavit, but in cross-examination, admitted that it may have been later, given what was said by Mr Hargreaves.
68 According to Mr Land, the symptoms occurred “directly” after the transport accident.
69 Ms Robb of Encompass Community Services said the plaintiff called her within a few days of the accident in a distressed state, and making little sense. In the days following, his speech was shaky and he became distrusting of people around him, including Ms Robb. It is difficult to determine whether what was observed by Ms Robb were indeed psychotic symptoms, or simply the plaintiff reacting, quite understandably, to a very serious accident.
70 Mr Hargreaves, according to his letter of 19 January 2004, would appear to place the onset of the symptoms to around the time of his letter.
71 I have determined that I do not accept the evidence of these various lay witnesses to the extent that the evidence seeks to establish the psychotic symptoms which they observed or of which the plaintiff told them arose within a relatively short time after the transport accident. I say that for the following reasons:
(a) The report of Dr Savage[30] notes that the plaintiff was receiving “opinions” from many sources seeking to attribute his schizophrenic illness to the transport accident. He had been the plaintiff’s treating general practitioner for a considerable period, and it is reasonable to infer that he was familiar with the plaintiff’s background and behaviour. His letter is clearly sceptical of the attribution by the plaintiff’s friends and support people. He could not draw any link between the schizophrenia and the transport accident;
[30]DCB 12-13
(b) The first time the diagnosis of schizophrenia was made was in February 2004 by Dr Khozouei. While it is certainly conceivable that the plaintiff may have been suffering from psychotic symptoms over a considerable period before that time, it would be unlikely that, having reported those symptoms to his aunt, uncle, landlord and carers, that they would not have taken prompt steps to arrange for him to be assessed. If indeed the symptoms did manifest to them in December 2001 or January 2002, it is difficult to understand how, even given the plaintiff’s pre-existing intellectual disability, they would not have thought to arrange for him to see a psychiatrist, rather than wait two or three years. Dr Khozouei would undoubtedly have taken a careful history before making his diagnosis. It is reasonable to infer he would be looking at the timing of the onset of the symptoms which led to it. His opinion[31] is that there is no connection to the transport accident;
[31]PCB 90
(c) While it is uncertain when the various lay witnesses were first asked to turn their minds back to the plaintiff’s behaviour shortly after the transport accident, their affidavits were not sworn until eight or nine years later. It would be difficult to recall with precision when the onset of such behaviour commenced, so many years later. Mr Quaranta quite reasonably in cross-examination conceded that he might well have been wrong about the onset of the psychotic symptoms;
(d) The only actual contemporaneous record would appear to be the letter of Mr Hargreaves of 9 January 2004 in which he said that he was told about the “black man” by the plaintiff around the time of the letter. While that does not exclude the possibility that the plaintiff was suffering that particular delusion at an earlier time, it lends weight to the argument that that particular psychotic delusion came on later.
72 In all these circumstances, and given the onus is upon the plaintiff on the issue, I am not satisfied that the plaintiff’s paranoid or psychotic symptoms commenced within a relatively short period after the transport accident. It is clear that the plaintiff did suffer these psychotic symptoms, and that a diagnosis was made in February 2004. However, as was clear from the evidence of Dr Newlands, the longer the period between the onset of the symptoms and the transport accident, the less reliable the link to the schizophrenic illness is likely to be.
Conclusions from the medical evidence
73 From the medical evidence, I conclude the following:
(a) The plaintiff was diagnosed with schizophrenia in February 2004 as a result of various psychotic and hallucinatory symptoms. He has been treated with anti-psychotic medication from that time to the present;
(b) The precise aetiology of schizophrenia is difficult to determine. The fact that the plaintiff’s mother, and possibly another relative, had the diagnosis, makes the plaintiff more vulnerable to its onset;
(c) In order to establish the length between the schizophrenia and the transport accident, it is necessary to establish a close temporal link between the accident, and the onset of the symptoms. Dr Newlands said that the temporal link would need to be a matter of several weeks, or directly afterwards;
(d) Dr Epstein drew his conclusion based on the fact there was a close temporal relationship and that the onset of the symptoms was “soon after” the accident;
(e) Dr Kathryn Thomas, psychologist, saw the plaintiff on four occasions in 2002.[32] Her report makes no reference to any psychotic symptoms. It would appear to me to be likely that were the plaintiff suffering such symptoms in 2002, he would have told Dr Thomas about them, or she would have elucidated such symptoms herself. Similarly, Dr Vout, in his report of May 2003, makes no reference to psychotic symptoms, although that may be explained by the fact that the plaintiff was seeking employment assistance.
[32]PCB 98
74 Given most practitioners accept there is a need for the close link between the onset of symptoms and the transport accident, and given that I have found I am not satisfied, from the lay or other evidence, that such a link exists, I am unable to conclude that the plaintiff’s schizophrenic illness is causally related to the transport accident. I prefer the opinions of Doctors Khozouei, Savage, Weissman and Daniels.
Consequences of Post-Traumatic Stress Disorder and/or Adjustment Disorder
75 Mr Harrison emphasised that if one assessed the plaintiff’s general level of functioning as to employment, domestic and recreational pursuits both before and after the transport accident, the difference was dramatic. He submitted this was a sufficient basis for a finding that the plaintiff had suffered “severe” consequences, sufficient to meet the statutory test. The difficulty with this submission, however, is that it fails to take account of the changes to the plaintiff’s lifestyle brought about by the schizophrenic illness. In assessing whether the consequences to the plaintiff meet the “severe level”, it is necessary to set aside the symptoms and the general effect upon the plaintiff’s life of the schizophrenic illness.
76 I accept from the evidence of the various lay witnesses that since the transport accident, the plaintiff has become anxious and distressed about catching public transport, in particular buses. I accept that he has suffered some symptoms of PTSD including, in particular in the earlier days, nightmares and flashbacks to the accident. Such a reaction would be quite expected, given how frightening it must have been. To some extent, I accept that the plaintiff’s recreational, employment and social capacities have been affected, as referred to in the affidavit of Ms Robb. It is difficult, however, to discriminate the extent to which those activities have been affected by the schizophrenia on the one hand, and the Adjustment Disorder or PTSD on the other. I accept further, from the report of Ms Todd, neuropsychologist, that the plaintiff avoids some social outings, and, in accordance with the reports of Dr Sullivan, that the plaintiff continued to suffer distress as a result of the transport accident and about the death of his friend. Dr Sullivan diagnosed the plaintiff as suffering a mild to moderate Adjustment Disorder which was attributable in part to the transport accident. It is likely that that disorder will fluctuate in the future and may need intermittent psychological treatment.
77 According to the psychologist, Ms Grace, in 2009, she diagnosed the plaintiff as suffering depression, albeit within the normal range, and symptoms of anxiety in the very mild range.
78 Dr Newlands described the plaintiff as having developed a mild to moderate Adjustment Disorder with Anxious Mood, related to the transport accident.
79 In his most recent report, Dr Epstein said that the plaintiff’s mood had improved and apart from intermittent episodes of anxiety, he did not appear depressed nor anxious. He said there were some still mild symptoms of traumatisation as a result of the transport accident, being the plaintiff’s unwillingness to use public transport. He concluded that the plaintiff’s prognosis had improved considerably, although that he might need ongoing review of medication and continuing contact with a psychologist. He said that the plaintiff’s psychiatric condition did interfere with his capacity to perform pre-injury duties, although he did have the capacity to undertake suitable employment on a part-time basis. Again, it is not clear whether Dr Epstein was referring to the schizophrenia.
80 Dr Weissmann said the plaintiff’s ongoing symptoms related to the transport accident were very mild.
81 Dr Daniels said the plaintiff had a mild Chronic Adjustment Disorder with Anxiety which he said had a minor impact upon the plaintiff’s social and recreational activities.
82 All in all, I conclude that the consequences to the plaintiff of either the Adjustment Disorder or PTSD, when looked at in combination, do not satisfy the statutory test of “severe”. Most practitioners describe the Adjustment Disorder as mild and, aside from anxiety related to travel on public transport, I am not satisfied there is any major interference with his domestic, recreational and employment duties.
83 In these circumstances, the plaintiff’s application fails.
84 I shall hear from the parties as to costs.
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