Babakerkhail v Transport Accident Commission
[2023] VCC 1886
•30 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03672
| SAIFULLAH BABAKERKHAIL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 May 2023 | |
DATE OF JUDGMENT: | 30 October 2023 | |
CASE MAY BE CITED AS: | Babakerkhail v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1886 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – cervical and lumbar spine injury; head injury; organic pain disorder – paragraph (c) of the definition of “serious injury” – chronic adjustment disorder and/or major depression; non-organic pain disorder.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Hettiarachchi v Transport Accident Commission [2023] VSCA 27; Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan and Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243.
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie KC with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendant | Mr D C Oldfield with Ms J Ryan | Russell Kennedy Lawyers |
HER HONOUR:
What is this case about?
1This is a serious injury application issued pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) in relation to a transport accident which occurred on 9 January 2020 (“the transport accident”).
2Mr Babakerkhail relies on paragraphs (a) and (c) of the definition of “serious injury” in s93(17) of the Act.
3Mr Babakerkhail claims that his pain and suffering consequences and pecuniary disadvantage consequences satisfy the definitions of serious injury within the Act and seeks leave of the Court to issue common law proceedings.
4At the hearing of this application, Mr McGarvie KC and Mr Nathanielsz of counsel appeared on behalf of Mr Babakerkhail, and Mr Oldfield and Ms Ryan appeared on behalf of the Transport Accident Commission (“TAC”).
5Mr Babakerkhail relied on five separate injuries to support his serious injury claim.
6He put his case five ways:
(a) first injury: Injury to the spine in the form of aggravation of cervical and lumbar spondylosis;[1]
(b) second injury: Head injury;[2]
(c) third injury: Psychiatric injury, chronic adjustment disorder and/or major depression;[3]
(d) fourth injury: An organic somatic symptom disorder or chronic pain disorder;[4]
(e) fifth injury: As an alternate to the fourth injury: A non-organic somatic symptom disorder or non-organic chronic pain disorder.[5]
[1]See s93(17)(a) of the Act.
[2](Ibid)
[3]See s93(17)(c) of the Act.
[4]See s93(17)(a) of the Act.
[5]See s93(17)(c) of the Act.
7According to Mr Babakerkhail, since the transport accident, he has had constant varying neck and lower back pain, regular migraines, and daily episodes of dizziness, poor memory and concentration, together with constant low mood and feelings of anxiety and nightmares.
8In addition, he claims he has not been able to work and that he no longer socialises as much as he used to because of the injuries.
Legal principles
9The legal principles in this proceeding are not in dispute.
10The well-known comments in Humphries & Anor v Poljak[6] apply.
[6][1992] 2 VR 129
11In relation to the physical claim under s93(17)(a), Mr Babakerkhail must identify each compensable injury suffered in the transport accident, the impairment from each compensable injury, and then establish that the impairment consequences from each compensable injury are “serious” in the sense of being “more than ‘significant’ or ‘marked’”, or at “least very considerable”.
12Each compensable injury and its relevant consequences must satisfy the “serious” test under s93(17)(a) independently – they cannot be aggregated.
13In relation to the claim under s93(17)(c), Mr Babakerkhail must establish, as a matter of probability, that the claimed injury is a “severe long-term mental or severe long-term behavioural disturbance or disorder”. In Mobilio v Balliotis,[7] the Full Court found that the word “severe” in s93(17)(c) is higher than “serious”. Brooking JA stated:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[8]
[7][1998] 3 VR 833 at [846]
[8]Ibid
14For the reasons that follow I have determined that Mr Babakerkhail has not satisfied his onus of establishing that the long-term consequences of his spinal injury or his head injury, or any organic pain disorder, could be fairly described as “more than ‘significant’ or ‘marked’” and “at least very considerable” when compared with the range of possible impairments.
15For the reasons that follow, I have determined that Mr Babakerkhail has not satisfied his onus of establishing that the long-term consequences of a psychiatric condition or non-organic pain disorder could be fairly described as severe.
What are the issues in dispute?
16The TAC did not dispute that the transport accident occurred.
17The TAC identified the following issues:
· credit
· whether there is an organic injury
· disentanglement of the consequences of any organic injury.[9]
[9]Transcript (“T”) 10, Lines (“L”) 21-31
Background
18Mr Babakerkhail was born in December 1990 in Afghanistan.
19He did not attend school. He worked on the family farm, and later worked as a road worker. He is illiterate in both his native language and in English.
20Mr Babakerkhail arrived in Australia in 2013 when he was twenty-three years old. He said that he had to flee from the Taliban as he had been targeted because he worked as a road worker.
21Mr Babakerkhail’s travels to Australia were frightening and difficult. He travelled through Pakistan, Thailand, and Malaysia, and then came from Indonesia to Australia by boat.
22In 2017, Mr Babakerkhail attended an organisation called the Foundation House for treatment.
23Mr Babakerkhail says he attended the Foundation House, as he was sad and was missing his family, and he was not working at the time.
24The Foundation House describes itself as the Victorian Foundation for Survivors of Torture.
25Despite these experiences, Mr Babakerkhail said that, once he had commenced work in Australia and found a group of friends, he had started to enjoy life and was keeping busy with a combination of work and socialising.
26It is not clear when Mr Babakerkhail first commenced working in Australia.
27At the time of the transport accident in January 2020, Mr Babakerkhail was working full time as a scrap-metal labourer for an organisation, Omega Metal and Centre for Recycling.
28Mr Babakerkhail says he has not been able to work since the accident. He says that he would not be a reliable worker, given the variable nature of his pain and his concentration problems.
The hearing
29The hearing did not proceed in the usual way.
30The parties agreed to reverse the usual order of submissions. Mr McGarvie KC, for Mr Babakerkhail, made his final submissions first as Mr McGarvie KC had other court commitments which required his attention.
31Mr Babakerkhail tendered two affidavits affirmed by him on 18 August 2021 and 1 February 2023.[10]
[10]Plaintiff Exhibit P1, Amended Plaintiff’s Court Book (“PACB”) 7-18
32Mr Babakerkhail also tendered an affidavit from his housemate, Yousef Khoste,[11] along with medical records from treating practitioners and medico-legal practitioners.
[11]Plaintiff Exhibit P2, PACB 19-22
33Mr Babakerkhail was the only witness to give viva voce evidence. He gave his evidence entirely through an accredited Pashto interpreter.
34The TAC tendered medical reports, medico-legal reports and surveillance film of Mr Babakerkhail.
35Over fifty medical reports were tendered.
36Neither party tendered any financial material.
37I have considered all of the tendered evidence, Mr Babakerkhail’s viva voce evidence, the surveillance material, and the submissions of the parties, but I shall only refer to the materials to the extent necessary in these reasons.
The transport accident
38On 9 January 2020, Mr Babakerkhail was the front-seat passenger in a car which collided with the rear of another car on Dandenong Road in Malvern East.
39As mentioned earlier, the TAC did not dispute the occurrence of the transport accident but made no concessions as to the circumstances of the accident.
40Mr Babakerkhail does not remember much about the transport accident[12] and has been unable to provide details of it, or any account of what he says happened to him in the transport accident.
[12]Plaintiff Exhibit P1, PACB 9
41Mr Babakerkhail did not produce any evidence from the driver of the car in which he was travelling or any other witness to the transport accident.
42The Court is left with the contemporaneous records of the ambulance officers who attended the scene, and The Alfred hospital notes, as the evidence of the circumstances of the transport accident.
43According to the records from Ambulance Victoria, Mr Babakerkhail’s car was travelling at approximately 70 kilometres per hour when the collision occurred. It is not clear who provided this information.
44Ambulance Victoria records stated that there had been multiple collisions before coming to a stop. It was recorded that Mr Babakerkhail said he had sustained a head strike.[13]
[13]Defendant Exhibit D10, Extracted Clinical Notes, page 53
45Mr Babakerkhail’s Glasgow Coma Score (“GCS”) was assessed at the accident scene as 14/15. He scored 4/5 under the GCS verbal score. It was recorded that he was “confused”.
46The ambulance notes must be read with caution. The ambulance officers recorded that Mr Babakerkhail was:
“... difficult to assess as pt (sic) did not answer crew’s questions. answered majority of crew’s questions with ‘I don’t know’”[14]
[14](Ibid)
Hospital stay
47Mr Babakerkhail was an inpatient at The Alfred hospital for four days. The Emergency Department notes recorded that the car in which Mr Babakerkhail was a passenger “Slowed to side of road”, and “no significant damage to car noted by AV, no air bags deployed”.[15]
[15]Defendant Exhibit D9, Extracted clinical Notes, page 30. It is assumed that the references to “AV” in the notes is a reference to Ambulance Victoria.
48On 11 January 2020, the hospital notes recorded:
“Pt likely tailend PTA, however language barrier appeared to impact upon today’s score. … .”[16]
[16](Ibid) page 35
49Mr Babakerkhail was not discharged from hospital until he had achieved a consistent 12/12 score on the Westmead Post-Traumatic Amnesia scale (“WPTA”) for three consecutive days.
50Having seen Mr Babakerkhail give evidence, and considering all the material, it appears to me that at least some of the confusion displayed to the Ambulance Victoria officers, and at the hospital, may have been related to language difficulties.
Radiology
Brain
51On 10 January 2020, while in hospital, Mr Babakerkhail had a CT scan of the brain/cervical spine, which reportedly found no acute intracranial or bony cervical injury.[17]
[17](Ibid) page 49
52On 3 February 2020, Mr Babakerkhail had an MRI scan of the brain which was reported to be essentially normal, except for some mucosal thickening of the sinuses, which was likely due to chronic rhinosinusitis.[18]
[18]Plaintiff Exhibit P19, PACB 171-172
53On 19 February 2020, a further MRI scan of the brain was carried out, which had reportedly similar findings and conclusions to the MRI scan dated 3 February 2020.[19]
[19]Defendant Exhibit D13, PACB 94
Spine
54As mentioned above, on 10 January 2020, while an inpatient, Mr Babakerkhail had a CT scan of the brain/cervical spine. No bony cervical injury was identified.
55On the same day, he had a CT of the chest/abdomen/pelvis/thoracolumbar spine, which concluded there were no significant traumatic sequelae.
56On 19 February 2020, Mr Babakerkhail underwent an MRI scan of his cervical and lumbar spine. In respect of the cervical spine, there was reported to be mild, multilevel mid-disc desiccation, but no other abnormal findings.[20]
[20]Plaintiff Exhibit P20, PACB 173-174
57The MRI scan of the lumbar spine was not completed because Mr Babakerkhail became unresponsive during the examination and was immediately removed from the MRI scanning machine. He was taken to hospital by ambulance. The report of the MRI scan, insofar as it went, revealed mild multilevel lower lumbar disc desiccation with disc bulges without overt neuro-impingement at L3-4, L4-5 and L5-S1. An annular disruption was also noted at L5-S1.
58Mr Babakerkhail had a further plain x-ray of his lumbosacral spine and a CT scan of his lumbosacral spine in October 2020. The x-ray of his lumbosacral spine was reported to reveal no suggestion of any compression fracture of the vertebral bodies of L2, and the facet joints were said to be normal. The CT scan of the same date reportedly showed a mild diffuse disc bulge at L3-4, and central disc protrusion at L4-5 and L5-S1, but it was noted that there was no evidence of any significant compression of the nerve roots.[21]
[21]Plaintiff Exhibit P21, PACB 176-177
59Follow-up x-rays of the cervicolumbar spine conducted on 21 May 2021 were reportedly essentially normal.[22]
[22]Plaintiff Exhibit P22, PACB 178
Surveillance
60The TAC tendered approximately eighteen minutes of video surveillance of Mr Babakerkhail taken on 28 March 2023 and 3 April 2023.[23]
[23]Defendant Exhibit 5
61Mr Babakerkhail had the opportunity to view the video surveillance prior to the hearing and had provided it to a number of medico-legal experts for their comment.
62The video surveillance was played in court.
63Separately, I watched it again for the purpose of providing these reasons.
64The following is a summary of my observations:
(a) 28 March 2023: Fourteen minutes of non-continuous footage was shown. Mr Babakerkhail was seen walking in his neighbourhood with a male friend. Mr Babakerkhail was neatly dressed. He was wearing sandals and traditional clothing in the form of a long white kurta-type top with loose-fitting white trousers. He was carrying a set of beads. His hair was neatly combed and, overall, he looked clean and well presented;[24]
(b) 3 April 2023: Four minutes of continuous film taken between 5.57pm and 6.01pm showed Mr Babakerkhail wearing the same outfit as in the first video. He walked to the nature strip outside a residential property. He crouched behind a parked car. It appeared that he was squatting deeply, but the view was obscured by the car. Approximately one minute and ten seconds later, he stood up from what appeared to have been a squat. I was left with the impression that he had remained in a squatting position for over a minute. He was joined by another man, and the two men walked together down the driveway.
[24]Footage taken on 28 March 2023 comprised 14:06 minutes of intermittent footage shot across a thirty-minute period between 6.37pm and 7.07pm. The footage was not continuous. It was not suggested by Mr Babakerkhail that it had been edited.
65On the face of it, the video surveillance appeared to me to be innocuous. It did not show Mr Babakerkhail doing anything strenuous.
66The significance of the video surveillance became apparent when contrasted to Mr Babakerkhail’s presentation to the Court, his presentation to medical examiners and, further, when considering the opinions of Mr Babakerkhail’s medico-legal examiners, who provided their comments on it – particularly Dr Nicholas Ingram, consultant psychiatrist, and Dr Izabela Walters, clinical neuropsychologist.
Mr Babakerkhail’s affidavit evidence
Pain and suffering consequences relating to the spine: first injury
67In each of his affidavits, Mr Babakerkhail deposed to experiencing constant and varying low back pain and neck pain.
68He said his back pain was exacerbated by bending, lifting, and twisting, which made it awkward to push and pull items of significant weight.
69Mr Babakerkhail said he struggled to sit, stand or walk for prolonged periods due to back pain, and that he would lie down several times a day to relieve his pain.
70Mr Babakerkhail said that his neck pain was exacerbated by turning his head from side to side, lifting his head up, and putting it down.
71Mr Babakerkhail said, because of his neck and back pain, he had problems sleeping, he was unable to work, he would be unreliable to work, he had problems driving long distances, he was restricted to light cooking and cleaning, and was unable to go camping or go on day trips with his friends, or play snooker. He said he avoided going to clubs and the casino like he used to.
Pain and suffering consequences relating to the head: second injury
72Mr Babakerkhail said he suffered from migraines two to four times a week, with unbearable pain, and when his pain was severe he would take medication and lie down. He also said that he felt dizzy at least once or twice a day, and dizziness would come on when he moved from a sitting to a standing position.
Pain and suffering disorders relating to chronic adjustment disorder and/or major depression: third injury
73Mr Babakerkhail said he felt sad and unhappy due to his pain.
74In his second affidavit he said he was anxious, worried, and had low mood.
75Mr Babakerkhail said he was not having any active psychiatric treatment.
76As at February 2023, he was not attending his psychologist, but he said she would telephone him once every two months.
Other consequences not attributed to any specific impairment
77Mr Babakerkhail identified poor memory and problems with concentration, but he did not attribute these deficits to any specific body function or psychiatric impairment.
Current medication
78At the time of the hearing, Mr Babakerkhail was taking the following medication:
· Sertraline, 100 milligrams x 1 daily (for anxiety).
· Mirtazapine, 30 milligrams x 1 at night (for depression).
· Sodium valproate, 500 milligrams, one tablet twice daily after food (for migraines).
· Osteomol, two tablets three times a day (for pain).[25]
[25]T81, L4
Treatment
79Mr Babakerkhail’s general practitioner, Dr Muhammad Khan, referred him to Dr Shahram Sadeghi at the Precision Brain, Spine & Pain Centre (“Precision”) in 2020.
80Mr Babakerkhail first saw Dr Sadeghi on 17 April 2020, a few months after the transport accident.
81Dr Sadeghi then made a series of internal referrals within the organisation, Precision, to Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, as well as to Dr Mina Ghaly, neurologist, and to Dr Katherine McQuillan, psychiatrist.
82A number of those doctors have made further internal referrals or cross-referrals within Precision.
83It would appear that the internal referrals have in fact come to nothing as Mr Babakerkhail was referred to Advance Healthcare for a multidisciplinary pain management program, which ultimately did not proceed.
The first injury
Medical evidence as to the cervicolumbar spine injury
Mr Babakerkhail’s treating doctors
Alfred Health
84Mr Babakerkhail was discharged from Alfred Health on 13 January 2020 with some pain medication.
Dr Muhammad Khan, GP
85It is not clear when Mr Babakerkhail first attended Dr Khan after the accident, but by February 2020 Dr Khan referred him to Precision[26] and to physiotherapy.
[26]Plaintiff Exhibit 5, PACB 28
86Dr Khan prescribed Osteomol and Tapentadol initially.
87In a report dated 23 May 2023, Dr Khan said Mr Babakerkhail was restricted in relation to domestic, social, and recreational activities due to chronic neck and back pain.
88Dr Khan considered Mr Babakerkhail was unfit for work.
89Dr Khan did not modify his opinions after seeing the surveillance, which will be discussed later in this judgment at paragraph 304.
Dr Hazem Akil, neurosurgeon, Precision
90Dr Akil reviewed Mr Babakerkhail on 19 October 2020. He saw Mr Babakerkhail in person and had an interpreter assisting over the phone. His examination was the result of an internal referral within Precision from Dr Sullivan.
91Dr Akil had the opportunity to review the x-ray of 5 October 2020 and the CT scan of 5 October 2020, which he said did not show any signs of instability. Dr Akil noted, on examination, that Mr Babakerkhail presented with significant guarding in his paraspinal region, but he had no motor deficit. Dr Akil saw no indication for surgery and concluded that Mr Babakerkhail should remain under the care of Dr Sullivan, pain specialist and Dr Sadeghi, rehabilitation physician.
Mr Jesse Wilson, physiotherapist
92Mr Wilson commenced treating Mr Babakerkhail on 21 December 2020.
93In February 2021, he diagnosed whiplash, lumbar disc dissection, postural orthostatic hypotension and hyperextension compression lumbar pain.
94In March 2021, Mr Wilson recorded Mr Babakerkhail’s walking capacity as being limited to 500 metres, but thought that Mr Babakerkhail would be able to walk up to 2 kilometres by May 2021.
Dr Shahram Sadeghi, rehabilitation physician, Precision
95When Dr Sadeghi first examined Mr Babakerkhail in April 2020, he noted that there were difficulties with communication, as there was no interpreter.
96Dr Sadeghi continued to treat Mr Babakerkhail in 2021 and 2022. It appears that the last time he saw Mr Babakerkhail was in June 2022, at which time Mr Babakerkhail presented with a significantly-restricted range of motion in the cervical and lumbosacral areas, and was walking with an antalgic gait.
97It was Dr Sadeghi’s opinion that the 2021 MRI scan showed multilevel disc desiccation in the lumbar and cervical spine, and he noted the annular disruption at L5-S1. He accepted that there was no substantive neural compromise.
98He diagnosed discogenic cervical lumbosacral pain with associated myofascial pain syndrome and central pain.
99Dr Sadeghi did not explain what he meant by “myofascial pain syndrome and central pain”.[27] He also diagnosed “pain”, which is not a diagnosis.
[27]Plaintiff Exhibit P6, PACB 107
100Dr Sadeghi made a further internal referral within Precision to Dr Andrew Jarzebowski, pain physician, for further treatment. It is not clear whether any such treatment has taken place.
Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, Precision
101In May 2020, on referral from Dr Sadeghi, Dr Sullivan recommended that Mr Babakerkhail have a bone scan with SPECT/CT overlay of the cervical spine and lumbar spine. He said that, if there was any evidence of substantial focal inflammatory pathology, then further investigations, such as diagnostic interventions, could be used.[28]
[28]Plaintiff Exhibit P7, PACB 111
102There is no evidence that the investigations suggested by Dr Sullivan were ever undertaken.
Dr Mina Ghaly, neurologist, Precision
103Dr Ghaly reviewed Mr Babakerkhail in March 2022, June 2022, and October 2022.
104Dr Ghaly addressed a report to Mr Babakerkhail’s solicitors, dated 17 May 2023, in which she said that Mr Babakerkhail had musculoskeletal cervical and lumbar pain as a result of an aggravation of pre-existing asymptomatic degenerative changes.[29]
[29]Plaintiff Exhibit P8, PACB 121-122
105It was her opinion that the degenerative changes shown on the radiology were mild, but the transport-accident-related aggravation resulted in substantial pain and limitations on Mr Babakerkhail’s ability to sit, drive, socialise and attend to domestic duties.
106It was her opinion that Mr Babakerkhail was unfit for any work duties because of his spinal injury.[30]
[30](Ibid), PACB 122
107Dr Ghaly did not modify her opinions after seeing the surveillance, which will be discussed later in this judgment at paragraph 305.
Mr Babakerkhail’s medico-legal practitioners
108Mr Babakerkhail tendered reports from Professor Richard Bittar, neurosurgeon, and Dr Eman Awad, occupational health specialist in relation to the claimed spinal injuries.
Professor Richard Bittar, consultant neurosurgeon
109Mr Babakerkhail tendered three reports from Professor Bittar, dated 20 April 2021, 10 March 2023 and 16 May 2023.[31]
[31]Plaintiff Exhibit P24, PACB 203-208; 209-216 and 217-218
110The first two reports related to specific examination and the third report related to Professor Bittar’s consideration of the surveillance material.
111On the two occasions when Professor Bittar examined Mr Babakerkhail, he had the assistance of a professional interpreter.
112Professor Bittar diagnosed Mr Babakerkhail with aggravation of cervical spondylosis, with ongoing neck pain, and aggravation of lumbar spondylosis with ongoing lower back pain.
113Professor Bittar reviewed the various medical reports and referred to an MRI scan of the cervical and lumbar spine dated on or around 19 November 2020.
114No such MRI scan was tendered by the parties. It is not clear what Professor Bittar was reporting on, as no other practitioner has been provided with an MRI scan dated 19 November 2020. It is possible that Professor Bittar was referring to the MRI scan of February 2020, but I am unable to ascertain this on the evidence.
115At the initial examination, Professor Bittar recorded mild to moderate restrictions to the movements of the cervical spine, with moderate restriction to the lumbar spine flexion and severe restriction on lumbar spine extension. He said there was midline tenderness in the lower cervical spine, but no muscle spasm. He said there was bilateral paravertebral tenderness and spasm in the lumbosacral spine.
116When he re-examined Mr Babakerkhail in March 2023, Professor Bittar found that there had been a deterioration in Mr Babakerkhail’s range of movement in the cervical spine – his extension was now severely restricted and the restrictions in cervical spine flexion had increased from mild to moderate. Further, the rotation of the cervical spine had changed from mild to moderate.
117On this occasion, Professor Bittar found Mr Babakerkhail had bilateral cervical paravertebral tenderness in the mid-cervical spine, with associated muscle spasm, as well as bilateral lumbosacral paravertebral tenderness with muscle spasm.
118Professor Bittar was the only practitioner who has recorded muscle spasm.
119Professor Bittar noted Mr Babakerkhail walked with an antalgic gait.
120He considered that Mr Babakerkhail was unfit for pre-injury duties because he was likely to be severely restricted with pushing, pulling, lifting, bending, reaching, twisting, stooping, prolonged sitting, standing or walking.
121Professor Bittar did not modify his opinions after seeing the surveillance, which will be discussed later in this judgment at paragraph 307.
Dr Eman Awad, occupational health specialist
122Mr Babakerkhail tendered two reports of Dr Awad, both dated 31 March 2023. One report related to the clinical examination and the second related to the surveillance footage.[32]
[32]Plaintiff Exhibit P27, PACB 249-259
123When Mr Babakerkhail attended Dr Awad he complained of constant neck pain and said that his back pain was the most troublesome, scoring 9/10 on the Visual Analogue Scale. He reported functional tolerances of standing between five and ten minutes, walking ten to fifteen minutes without an aid, and sitting for twenty to thirty minutes. Dr Awad diagnosed Mr Babakerkhail as suffering an aggravation of cervical spondylosis, aggravation of lumbar spondylosis and chronic pain.
124Dr Awad thought there was no further treatment Mr Babakerkhail could have. She noted that Mr Babakerkhail walked with an antalgic gait and presented with reduced range of movements in his cervical and lumbar spine in all planes and demonstrated a high level of pain in all movements.
125Dr Awad noted that Mr Babakerkhail was a poor historian and was not sure whether that was due to any memory concerns or Mr Babakerkhail’s lack of education.
126Dr Awad said that Mr Babakerkhail would be medically restricted from repetitive pushing, pulling, lifting, bending, reaching forward, reaching overhead, stooping, prolonged sitting, standing or walking for the foreseeable future.
127Dr Awad opined that Mr Babakerkhail had no capacity for pre-injury duties and would be permanently medically restricted from all manual jobs because of his spinal condition.
128Dr Awad did not modify her opinions after seeing the surveillance, which will be discussed later in this judgment at paragraphs 308-309.
TAC’s medico-legal reports: the first injury
129The TAC relied upon the reports of Dr Terence Saxby, consultant orthopaedic surgeon,[33] Associate Professor Max Esser, orthopaedic surgeon,[34] and Dr David Barton, consultant occupational physician.[35]
[33]Defendant Exhibit D3, DCB 19-25
[34]Defendant Exhibit D4, PACB 195-202
[35]Defendant Exhibit D2, DCB 13-18
Dr Terence Saxby, consultant orthopaedic surgeon
130Dr Saxby assessed Mr Babakerkhail on 15 December 2022. His report was dated 19 December 2022.
131Mr Babakerkhail presented with a restricted range of motion in all directions, he moved very slowly with one hand on his back and walked with a flexed posture of his spine. He displayed difficulties climbing up and down on the examination couch.
132Dr Saxby specifically noted that there were no spasms or deformity in the cervical or lumbar spines.[36]
[36]Defendant Exhibit D3, DCB 21
133Dr Saxby considered that the clinical examination was inconsistent with the radiology, which demonstrated very mild changes. It was his opinion that the changes on radiology were consistent with mild degenerative change.
134In addition, Dr Saxby found that Mr Babakerkhail’s presentation was inconsistent with both clinical examination and the radiology, as Mr Babakerkhail demonstrated gross restriction of motion in all directions.
135Dr Saxby considered that there was abnormal illness behaviour evident in the medical examination.
136Dr Saxby concluded that, while the transport accident may have materially contributed to an aggravation of Mr Babakerkhail’s underlying spondylosis or degenerative change by the time of his examination, any such aggravation had ceased. He considered that any aggravation should have resolved within twelve months of the injury.
137It was Dr Saxby’s opinion that, from a physical perspective, Mr Babakerkhail was able to return to pre-injury duties.
138Dr Saxby commented on Mr Babakerkhail’s psychiatric presentation, but any such comments are outside of his area of expertise and I have had no regard to them.
Associate Professor Max Esser, orthopaedic surgeon
139Associate Professor Esser examined Mr Babakerkhail in April 2021.
140The consultation and report were commissioned by the plaintiff’s solicitors, however his report was tendered by TAC.
141Mr Babakerkhail complained of ongoing back pain and limited functional tolerance, and limited capacity to sit and lie down. He reported numbness in his right foot, which, according to Associate Professor Esser, sounded like a sock-type distribution of altered sensation.
142On clinical examination, Mr Babakerkhail presented with grossly-restricted ranges of flexion, extension and lateral flexion to the right and left. His rotation to the left and right in his neck was also restricted.
143In contrast, when Associate Professor Esser had the opportunity to view Mr Babakerkhail during the interview, Mr Babakerkhail displayed a “virtually normal range of cervical spine movements”.[37]
[37]Defendant Exhibit D4, PACB 197
144When Associate Professor Esser examined Mr Babakerkhail’s lumbar spine, he presented with a very restricted range of lumbar spine movement.
145Associate Professor Esser noted, in contrast, Mr Babakerkhail was able to put his clothes back on and demonstrated a normal range of lumbar spine flexion.
146On clinical examination, Associate Professor Esser found normal power, tone and reflexes in the limbs and did not find any sensory abnormality.
147Associate Professor Esser observed Mr Babakerkhail walking normally around the room, but slowly. At one stage, Mr Babakerkhail was clutching his lower back.
148Associate Professor Esser’s opinion was that it was possible that Mr Babakerkhail sustained a soft tissue injury to his lumbar or cervical spine, but on examination he could find no specific abnormality of the spine.
149As he could find no organic explanation for the presentation, it was his view that the presentation could be explained due to illness behaviour and/or other psychiatric conditions. He expressed the view that any incapacity or inability to work was related to psychological factors “rather than any specific accident related conditions.”[38]
[38] Defendant Exhibit D4, PCB 201
150Associate Professor Esser’s comments on psychiatric matters are outside of his area of expertise and I have had no regard to them.
151Insofar as Mr Babakerkhail’s organic injuries were concerned, Associate Professor Esser considered that there was a good prognosis.
152It was his opinion that, if Mr Babakerkhail had an inability to work, it was not due to any physical injury.
Dr David Barton, consultant occupational physician
153Dr Barton examined Mr Babakerkhail on 13 December 2022 and prepared a report dated 14 December 2022.[39]
[39]Defendant Exhibit D2, DCB 13-18
154Mr Babakerkhail complained of neck and back pain and pain throughout the head, as well as a global headache. On gentle axial loading, Mr Babakerkhail reported a marked increase in his neck and back symptoms.
155On clinical examination, his straight leg raising was limited to less than 5 degrees on either side, which Dr Barton noted contrasted with his postures at other times throughout the consultation.
156Mr Babakerkhail complained of generalised weakness in his arms and legs which, according to Dr Barton, made no medical sense.
157Dr Barton recorded that:
“… As he moved around the consulting room he frequently held onto the walls as if to stop himself falling over. He also held his head as he got up from the couch as if it (sic) was going to fall off otherwise. He moved slowly throughout with grimacing and gasping.”[40]
[40](Ibid), DCB 15
158Dr Barton specifically noted that there was no paraspinal muscle spasm on clinical examination.[41]
[41]Ibid
159Further, when Dr Barton tested Mr Babakerkhail’s reflexes in his arms and legs, they were normal, although he noted that:
“… immediately after the tendon was tapped with a reflex hammer the claimant jerked his whole body.”[42]
[42]Ibid
160As mentioned, Dr Barton considered that Mr Babakerkhail presented with a degree of abnormal-illness behaviour and presented as profoundly disabled, despite a lack of any organic condition.
161Dr Barton expressed the view that Mr Babakerkhail presented with a conscious functional overlay. He accepted that there had been some initial soft-tissue injuries, but considered that Mr Babakerkhail had fully recovered.
162Accordingly, Dr Barton expressed the opinion that Mr Babakerkhail had an excellent prognosis and a current capacity for employment.
The second injury: head injury
Medical evidence re head injury
Mr Babakerkhail’s treating doctors
The Alfred hospital
163On admission to hospital, Mr Babakerkhail’s GCS was 13/15, which was one point lower than recorded by the ambulance officers. The reason for the decrease in the GCS was unclear.
164Two clinical notes recorded:
“GCS 13, ?drug affected”[43]
and
[43]Defendant Exhibit D9, Extracts from The Alfred Hospital Clinical Notes in Extracted Clinical Notes, pages 65 and 66
“patient difficult to assess due to confusion and drowsiness ?affected, ?concussion”.[44]
[44](Ibid) page 58
165The language barrier was recorded and was noted to have had an impact on the relevant GCS and WPTA scores.
166The hospital records did not confirm the existence of a head injury.
Dr Muhammad Khan, GP
167In his report dated 23 May 2023, Dr Khan said Mr Babakerkhail had an organic head injury, relying on the opinions of Dr Mina Ghaly, neurologist, and Dr Luke Chan, neurologist (no material from Dr Chan has been tendered to the Court).[45]
[45]Plaintiff Exhibit P5, PACB 89
168In the same report, Dr Khan expressed the view that Mr Babakerkhail’s recurrent headaches and dizzy spells alone were sufficient to prevent him from performing pre-injury duties.[46]
[46]Ibid
Dr Mina Ghaly, neurologist, Precision
169Dr Ghaly, neurologist, wrote a letter to Dr Khan, dated 25 June 2020,[47] and said she suspected Mr Babakerkhail had concussion with post-concussion migraines. At that time, she was of the opinion that the post-concussion headache would improve.
[47]Plaintiff Exhibit P8, PACB 113
170In a report dated 17 May 2023, addressed to Mr Babakerkhail’s solicitors, Dr Ghaly noted that she had reviewed Mr Babakerkhail in March 2022, June 2022 and October 2022. She referred to an MRI scan of the brain, dated 3 February 2022, which revealed no structural abnormality.[48]
[48]Plaintiff Exhibit P19, PACB 171-172. The date of 3 February 2022 appears to be a typographical error, as the only MRI scan of the brain tendered was an MRI scan of the brain dated 3 February 2020, which reportedly showed no structural abnormality.
171Dr Ghaly diagnosed post-traumatic migraine and vestibular migraines and said that the transport accident was the cause of the head injury.
172Dr Ghaly considered that Mr Babakerkhail’s symptoms of headache, cognitive fogginess, stimuli sensitivity, persistent dizziness, nausea and sometimes vomiting, were disabling and prevented Mr Babakerkhail from his pre-injury work, and would continue to do so in the foreseeable future.
Dr Shahram Sadeghi, rehabilitation physician, Precision
173When Dr Sadeghi first examined Mr Babakerkhail in April 2020, he noted that communication was difficult because there was no interpreter present.
174Dr Sadeghi thought Mr Babakerkhail probably had a post-concussion syndrome.
175In a letter to Dr Khan, dated 2 June 2022, Dr Sadeghi said headaches were attributed to the post-concussion migraine with vestibular features, but his reasoning for such a diagnosis was unclear, given he noted that Mr Babakerkhail’s MRI scan was normal.
Plaintiff’s medico-legal reports
176In relation to any head injury, Mr Babakerkhail relied upon the reports of Dr Felix Ng, neurologist,[49] and Dr Eman Awad.[50]
[49]Plaintiff Exhibit P25, PACB, 219-227
[50]Plaintiff Exhibit P27, PACB, 249-259
177Mr Babakerkhail did not specifically rely on the opinion of Dr Izabella Walters – however I have considered her opinion given her area of expertise in neuropsychology, the neuropsychological tests performed and the impact of her opinion on Dr Ng’s views.
Dr Izabela Walters, clinical neuropsychologist
178Mr Babakerkhail tendered three reports from Dr Walters, dated 9 June 2022, 9 April 2023 and 15 May 2023.[51]
[51]Plaintiff Exhibit P26, PACB, 228-248
179Dr Walters saw Mr Babakerkhail on one occasion with an interpreter on 25 May 2022.
180Her second report was a supplementary report, and the third report commented on the surveillance.
181At the examination in May 2022, Mr Babakerkhail complained of forgetfulness, impaired concentration and slow-thinking speed. He said he would forget to take documentation to appointments and forgot the address of the appointment with Dr Walters. He said he could no longer remember how to dismantle cars, which was part of his pre-injury duties.
182Mr Babakerkhail said his mood was related to his pain, in that, if his pain was bad, his mood would be low. When the pain was better, his mood would improve, and he would enjoy talking to his friends.
183Dr Walters formed the view that Mr Babakerkhail’s complaints of impaired concentration and difficulties with memory and thinking were attributed to his psychiatric condition, rather than a brain or head injury.
184She noted the entries in The Alfred hospital records, where it was recorded that Mr Babakerkhail’s low GCS and difficulties obtaining a full score in the WPTA Scale, were more likely due to language and cultural barriers, ruling out an organic head injury as a cause of cognitive impairment.
185Dr Walters noted that, at the time of her examination, Mr Babakerkhail was having difficulty communicating, giving brief and uninformed answers. He found it difficult to provide details and required clarifications. This was even with the aid of an interpreter. Dr Walters formed the view that Mr Babakerkhail had difficulties, not only communicating in English, but also in his native language.
186Mr Babakerkhail presented as upset, miserable and depressed, with half-closed eyes and listless appearance. He cried when he spoke about the effect of his pain on his social life.
187Dr Walters conducted a series of neuropsychological tests, including a WPTA Scale test. Mr Babakerkhail performed poorly on the tests.
188Dr Walters attributed the low performance to a combination of factors, including Mr Babakerkhail’s lack of educational experience, difficulties in communication and distress and listlessness.
189Dr Walters concluded that Mr Babakerkhail had suffered a mild traumatic brain injury, which would have been expected to resolve without any significant long-term organically-based cognitive impairment.
190She considered that complaints of cognitive problems and memory change were secondary to low mental health, rather than any neurological deficit or cerebral dysfunction.
191Dr Walters modified her opinions after seeing the surveillance, which will be discussed later in this judgment at paragraphs 317-323.
Dr Felix Ng, neurologist
192Dr Ng prepared three reports dated 27 May 2021, 22 January 2022 and 1 September 2022.[52]
[52]Plaintiff Exhibit P25, PCB 219-227
193When he initially assessed Mr Babakerkhail, Mr Babakerkhail was complaining of episodic headaches with vertigo, which he said occurred three to four times a week. He said he had falls and had been forgetful.
194Dr Ng accepted that the MRI scan of the brain, dated 3 February 2020, was essentially normal.
195On clinical examination, he found that Mr Babakerkhail’s cranial nerve and vestibulo-occular reflexes were normal.
196Dr Ng nevertheless diagnosed Mr Babakerkhail with post-concussion syndrome with migrainous headaches and neurocognitive symptoms.
197In his subsequent report of January 2022, which was prepared for the purposes of an AMA assessment, Dr Ng said he agreed with Dr Ghaly’s diagnosis of post-traumatic (concussive) headache with migrainous features and vertigo.
198He accepted that the exact aetiology of Mr Babakerkhail’s neurocognitive symptoms was unclear because of superimposed depression and an adjustment disorder. He noted that mental health conditions can result in forgetfulness.
199Therefore, Dr Ng said he would defer to neuropsychological and psychiatric assessments, as he thought a portion of Mr Babakerkhail’s neurocognitive symptoms and impairments could be attributed to depression or an adjustment disorder.
200Dr Ng provided a further report in September 2022, after considering the report of clinical neuropsychologist, Dr Walters, dated 9 June 2022.
201Dr Ng noted the opinion of Dr Walters, that complaints of memory changes were most likely due to secondary low mental health, rather than organic brain injury.
202Dr Ng then expressed the opinion that Mr Babakerkhail’s neurocognitive and memory symptoms were not secondary to any organic head injury.
203It is not clear where that change of opinion sits with his earlier opinion that Mr Babakerkhail had post-traumatic (concussive) headache with migrainous features and vertigo.
Dr Eman Awad, occupational health specialist
204In March 2023, Dr Awad said the following:
“It is difficult to suggest that he has an ongoing organic basis for his head injury given that his neuro-occlusive testing states that he may have had a minor thoracic brain injury but this would be expected to have recovered at this stage.”[53]
[53]Plaintiff Exhibit P27, PACB 256
205Dr Awad was given a history that Mr Babakerkhail had not lost consciousness in the transport accident.
206Dr Awad considered that the GCS of 13/15 at hospital showed that there was a head injury.
207Despite her finding that it was difficult to say there was any ongoing organic basis for Mr Babakerkhail’s head injury, Dr Awad then asserted that Mr Babakerkhail’s complaints of poor memory, poor concentration, and being unable to watch television or recall specific events, were a consequence of his head injury.
208Dr Awad said that, even if Mr Babakerkhail could consider retraining, he had symptoms of cognitive confusion, which stemmed from a diagnosis of low mental health, which meant that his ability to retrain was poor.
TAC’s medico-legal reports
209The TAC did not rely on any medico-legal reports in relation to the claimed head injury.
The third injury: psychiatric: chronic adjustment disorder and/or major depression
Pre-accident material tendered by the TAC
210The TAC submitted that Mr Babakerkhail had a mental health history predating the transport accident.
211The TAC tendered the following material to support this submission:
· Extracts of clinical notes from Dandenong West Medical Centre for the period 22 October 2013 to 6 August 2014.[54]
· A clinical note from Millennium Medical Centre in relation to an attendance on 14 February 2016.[55]
· Extracts from the records of the Foundation House covering the period January 2017 to May 2017, which included copies of emails from the Foundation House to Mr Babakerkhail’s GP, dated 22 July 2020 and 7 September 2020.[56]
· Records from Tristar Medical Group for the period April 2018 to January 2020.[57]
[54]Defendant Exhibit 6, Extract of Clinical Notes, pages 1-2
[55]Defendant Exhibit 7, Extract of Clinical Notes, page 4
[56]Defendant Exhibit 8, Extract of Clinical Notes, pages 5-27
[57]Defendant Exhibit 11, Extract of Clinical Notes, pages 3-4
212It is apparent from the records of 2014 that Mr Babakerkhail attended a general practitioner at the Dandenong West Medical Centre for depression on three occasions – 7 February 2014, 16 June 2014 and 6 August 2014. At the initial visit, he provided a two-month history of depressed mood, poor sleep and early waking. He was prescribed Lexapro and Alepam. On 16 June 2014, those doses were doubled. He was having counselling. On 6 August 2014, it was recorded that Mr Babakerkhail was taking Lexapro. It was not clear for how long he took Alepam.
213On 14 February 2016, Mr Babakerkhail attended the Millennium Medical Centre, and the relevant clinical notes recorded the following complaints:
“Low mood
nightmar (sic)
not remember when wake up.
live alone.
family overseas
this depressing mood for long time
…
wants antidepressant”[58]
[58]Defendant Exhibit 7, Extract of Clinical Notes, page 4
214Mr Babakerkhail was provided with a prescription of Zoloft (50 milligrams per day). He was to be reviewed the following week, but it is not clear whether this took place.
215The records from the Foundation House show that Mr Babakerkhail attended counselling sessions on 18 January 2017, 11 April 2017 and 1 May 2017. During that time, he was experiencing distress, unhappiness and tension headaches related to issues regarding his family in Afghanistan and trying to access full-time work and awaiting a number of interviews. He said that the boat journey from Indonesia to Christmas Island was very difficult and frightening and he “would have been 100% dead if he had remained in Afghanistan”.[59]
[59]Defendant Exhibit 8, Extract of Clinical Notes, page 16
216He told Foundation House that he had nightmares, but he could not recall the content of them, apart from one in which his mother died. The notes recorded that he was not complying with antidepressant medication and they recorded the observation that he appeared to have difficulty concentrating or focusing at interviews.
217Records from the Tristar Medical Group show Mr Babakerkhail attended a general practitioner at that clinic for anxiety and depression.
218In 2018, he attended the clinic on four occasions: 22 April 2018; 29 April 2018; 6 May 2018 and 3 June 2018. He attended on 4 March 2019 and was provided with medication to assist with anxiety-related insomnia. He attended again on 2 August 2019 with depression and poor concentration. He was prescribed Lexapro and was offered a referral to a psychologist.
219When cross-examined about these attendances, Mr Babakerkhail said either he could not recall[60] or could not remember such attendances or prescriptions.[61]
[60] T46, L17-21
[61] T47, L5-18; T47, L29
220Medical records should be approached with caution,[62] given their intended use, which is to assist in forming a diagnosis and, where appropriate, a treatment plan for a patient.
[62] Hettiarachchi v Transport Accident Commission [2023] VSCA 27 at paragraphs [57[-[58]
221However, it is significant in this case that it was not submitted on behalf of Mr Babakerkhail that the records were wrong or inaccurate. Mr Babakerkhail simply said that he could not recall the attendances.
222It is clear to the Court that the records confirm that, during the years 2014 to 2018, Mr Babakerkhail attended medical practitioners, obtained prescriptions for medication and had some counselling for psychological/psychiatric problems.
223On the evidence, the Court cannot make any findings as to the nature and extent of those problems.
Medical evidence re psychiatric injury
Mr Babakerkhail’s treating practitioners
224Mr Babakerkhail did not produce any material from any pre-accident treating doctors.
Dr Muhammad Khan, GP
225Dr Khan, in a report dated 23 May 2023, said he had reviewed Mr Babakerkhail’s past medical history from the clinical notes of his previous doctor. Dr Khan expressed the opinion that the notes revealed anxiety and depression, which Dr Khan considered were related to Mr Babakerkhail’s past experiences of grief, trauma and separation from his family.[63]
[63]Plaintiff Exhibit P5, PACB 85
226On 22 February 2020, after the transport accident, Dr Khan referred Mr Babakerkhail back to the Foundation House.[64] There was reference to the transport accident in the referral, but no reference to Mr Babakerkhail’s earlier involvement and attendances with the Foundation House.
[64]Plaintiff Exhibit P5, PACB 30-31
227No material from the Foundation House was produced and it is not clear whether the referral took place.
Dr Katherine McQuillan, psychiatrist, Precision
228Mr Babakerkhail tendered a letter from Dr McQuillan, addressed to Dr Khan, dated 16 July 2020.[65] In addition, the TAC tendered a letter from Dr McQuillan, addressed to Dr Khan, dated 14 May 2020.[66]
[65]Plaintiff Exhibit P9, PACB 125
[66]Defendant Exhibit D14, Extracted Clinical Notes, page 163-164
229In the letter dated 14 May 2020, Dr McQuillan noted that Mr Babakerkhail said he had no prior psychiatric history. An interpreter was present at the consultation. She diagnosed Mr Babakerkhail with an adjustment disorder with associated anxiety and depressive symptoms. She noted there were some residual trauma-related symptoms which fell below the threshold of a formal diagnosis of Post-Traumatic Stress Disorder (“PTSD”).
230In a subsequent letter to Dr Khan, Dr McQuillan noted that Mr Babakerkhail’s mood remained anxious, but it had eased a little. His dizziness had improved, and it only “very rarely” occurred and was in a milder form. She recommended ongoing psychological therapy with a psychologist who spoke Mr Babakerkhail’s language.
Dr Indika Jayathilake, psychiatrist
231Mr Babakerkhail tendered two reports from Dr Jayathilake dated 13 December 2022 and 14 April 2023.[67]
[67]Plaintiff Exhibit P16, PACB 155-158
232Dr Jayathilake first saw Mr Babakerkhail on 7 December 2022 with an interpreter. Dr Jayathilake noted that it was a difficult interview. She recorded that Mr Babakerkhail had no past psychiatric history.
233Dr Jayathilake diagnosed major depression.
234She reviewed Mr Babakerkhail in December 2022 and in February and March 2023. She considered he had residual depression and anxiety and noted that he had been treated with two antidepressants.
235Dr Jayathilake recommended continuation of the same treatment regime with regular psychotherapy, and she discharged Mr Babakerkhail from her care on 10 March 2023.
236It was her opinion that Mr Babakerkhail had no capacity for pre-injury employment.
237It is unclear from her reports whether she knew anything about Mr Babakerkhail’s employment history.
Ms Shruti Gupta, psychologist
238Mr Babakerkhail tendered a letter from Ms Gupta to Dr Khan dated 16 February 2022, a report of Ms Gupta dated 3 April 2023 and a letter from Ms Gupta dated 22 May 2023.[68]
[68]Plaintiff Exhibit P15, PACB 149-153
239The letter dated 22 May 2023 commented on the surveillance material.
240It appears that Ms Gupta initially provided counselling sessions to Mr Babakerkhail in June 2021 through a pain management program at Advance Healthcare, St Albans. The pain management program was put on hold after a short period due to Mr Babakerkhail’s “physical and mental health issues”.[69]
[69](Ibid), PACB 149
241In her letter to Dr Khan, she stated that, in her session with Mr Babakerkhail on 7 February 2022, Mr Babakerkhail reported no desire to engage in any activities and she requested that the general practitioner consider a psychiatric assessment.
242In her report dated 3 April 2023, addressed to Mr Babakerkhail’s solicitors, Ms Gupta said Mr Babakerkhail was assessed as part of a pain management program on 17 May 2021 and that he had completed a multidisciplinary pain management program in 2021, after which he had further sessions of individual psychological treatment.
243Ms Gupta said that, at the time of assessment, Mr Babakerkhail reported no prior mental health history.
244Ms Gupta provisionally diagnosed an adjustment disorder with mixed anxiety and depressed mood with some symptoms of PTSD. She considered that Mr Babakerkhail’s psychological presentation appeared predominantly related to his transport accident injury.
245It was Ms Gupta’s opinion that Mr Babakerkhail had an extremely severe level of depression, anxiety and stress symptoms. She noted that Mr Babakerkhail had been referred for psychiatric assessment and treatment to Dr Indika[70] and remained under her care.
[70]Presumably Dr Indika Jayathilake.
246In Ms Gupta’s opinion, the prognosis was uncertain.
247Ms Gupta did not modify her opinions after seeing the surveillance, which will be discussed later in this judgment at paragraph 300.
Mr Babakerkhail’s medico-legal reports
248Mr Babakerkhail tendered reports of Dr Walters, clinical neuropsychologist, and Dr Ingram, consultant psychiatrist.
Dr Izabela Walters, clinical neuropsychologist
249As discussed above, Mr Babakerkhail tendered three reports from Dr Walters dated 9 June 2022, 9 April 2023 and 15 May 2023.[71]
[71]Plaintiff Exhibit P26, PACB 228-248
250Dr Walters attributed Mr Babakerkhail’s low performance on neuropsychological testing to a combination of factors, including his lack of educational experience, difficulties in communication, and distress and listlessness.
251Dr Walters concluded that Mr Babakerkhail had suffered a mild traumatic brain injury which would have been expected to resolve without any significant long-term organically-based cognitive impairment.
252She considered that his complaints of cognitive problems and memory change were secondary to low mental health, rather than any neurological deficit or cerebral dysfunction.
253Dr Walters was provided with further medical records, including records from Foundation House and Tristar Medical Group, and other medical practices.
254Dr Walters noted that the further records documented a longstanding history of low mood and anxiety starting as early as 2014. She noted that the Foundation House notes recorded concentration problems, nightmares, stress and anxiety, and low mood.
255It was her view that the history of emotional unwellness prior to the transport accident did not change her opinion, rather it added to the risk factors that might be involved after a head injury.
256As mentioned earlier, Dr Walters modified her opinions after seeing the surveillance, which will be discussed later in this judgment at paragraphs 317-323.
Dr Nicholas Ingram, consultant psychiatrist
257Mr Babakerkhail tendered six reports from Dr Ingram dated 6 July 2021, 18 August 2021, 4 July 2022, 1 March 2023, 9 May 2023 and 16 May 2023.[72]
[72]Plaintiff Exhibit P23, PACB 179-194 and 263-264
258Dr Ingram had the benefit of an interpreter attending all the appointments.
259The first report was produced after an initial examination.
260The second report, dated 18 April 2021, was a supplementary report commenting on the Foundation House records which had been provided.
261The third report was prepared after considering Dr Walters’ report of 4 July 2022.
262The fourth report was produced after a re-examination in March 2023.
263The fifth report was a further supplementary report, dated 9 May 2023, and was prepared after Dr Ingram was provided with further medical reports and medico-legal material, including notes from Mr Babakerkhail’s general practitioner from 2018 to 2019.
264The sixth and final report, dated 16 May 2023, commented on the video surveillance.
265At the time of the first examination, Dr Ingram considered that Mr Babakerkhail’s incapacity for work was not due to any psychiatric condition.
266After reviewing the material from the Foundation House, he concluded that it was unclear whether Mr Babakerkhail’s depression and anxiety had resolved prior to the transport accident. However, the records did not cause him to alter his opinion.
267After considering Dr Walters’ report of 4 July 2022, he agreed with Dr Walters’ view that Mr Babakerkhail’s complaints of slowed thinking and memory and concentration problems, were more likely psychological than neurological. He said that Mr Babakerkhail’s level of depression was not so significant as to lead to such cognitive problems. It was therefore more likely, in his view, that Mr Babakerkhail’s pain was affecting his ability to concentrate, therefore affecting his memory.
268In contrast to Dr Walters’ examination findings about Mr Babakerkhail’s concentration and communication abilities, Dr Ingram recorded, at the first examination, that Mr Babakerkhail generally gave good answers and was able to provide a full history.
269At the second examination, he stated that Mr Babakerkhail had no formal thought disorder or perceptual abnormality with his memory. Concentration and intelligence seemed normal, and he had a reasonable insight.
270In March 2023, Dr Ingram considered that Mr Babakerkhail’s main problem was pain, and his depression had worsened, despite there being an alteration to antidepressant medication.
271Dr Ingram believed the depression was caused by Mr Babakerkhail’s pain and limitations, and changed his opinion to say that he now considered Mr Babakerkhail had no capacity to work because of his depression.
272As at March 2023, Dr Ingram diagnosed a chronic adjustment disorder with depressed mood and anxiety and a possible chronic pain disorder.
273Dr Ingram significantly changed his opinion after seeing the surveillance, which will be discussed later in this judgment at paragraphs 310-316.
The TAC’s medico-legal reports
Dr Alan Jager, consultant psychiatrist
274The TAC tendered a report of Dr Jager, dated 20 March 2023.[73]
[73]Defendant Exhibit D1, DCB 4-12
275Dr Jager examined Mr Babakerkhail in March 2023 via Skype.
276Dr Jager had the opportunity to view the Foundation House records and the Tristar Medical Group’s records.
277Mr Babakerkhail denied experiencing any trauma during his journey from Afghanistan overland and by boat to Australia.
278Mr Babakerkhail denied any prior history of psychiatric illness.
279Dr Jager considered that Mr Babakerkhail minimised his prior symptoms, saying that his depression was related only to him missing his family, and he was having no problems at the time of the transport accident.[74]
[74](Ibid), DCB 9
280Dr Jager said that the material he had seen established that Mr Babakerkhail had experienced significant trauma, both in Afghanistan and on the journey to Australia, and he was experiencing nightmares as far back as 2017. He noted that Mr Babakerkhail had previously been prescribed antidepressants.
281Dr Jager diagnosed an ongoing pre-existing chronic major depressive disorder, which he considered was unrelated to the transport accident.
282Dr Jager said that he suspected that Mr Babakerkhail might have a pre-existing chronic PTSD, but was hesitant to confirm this diagnosis, because Mr Babakerkhail was so guarded in his presentation that he did not reveal to Dr Jager sufficient symptoms to diagnose the condition.
283Dr Jager considered Mr Babakerkhail did not have PTSD arising from the transport accident as he had no memory of the transport accident.
284Overall, Dr Jager opined that Mr Babakerkhail’s psychiatric condition was a pre-existing and unrelated chronic major depressive disorder with anxiety.
285Dr Jager considered that Mr Babakerkhail was unfit for full-time work due to reduced energy, and that he presented as “quite a disturbed individual”.[75]
[75](Ibid) DCB 11
286Dr Jager recommended that Mr Babakerkhail be provided with comprehensive psychiatric treatment and further medication.
The fourth injury: organic somatic symptom disorder or chronic pain disorder
Plaintiff’s treating practitioners
Dr Shahram Sadeghi, rehabilitation physician, Precision
287In a report dated 12 March 2023, Dr Sadeghi diagnosed discogenic cervical lumbosacral pain, which he said was associated with myofascial pain syndrome and central pain.[76] He did not explain what he meant by myofascial pain syndrome, other than saying all Mr Babakerkhail’s injuries were organic.
Plaintiff’s medico-legal practitioners
[76]Plaintiff Exhibit P6, PACB 107
Associate Professor Richard Bittar, consultant neurosurgeon
288Associate Professor Bittar said the spinal injury had a substantial organic basis, but then said that it was clear from Mr Babakerkhail’s presentation that he developed a very significant chronic pain condition which would best be assessed by a pain specialist.
289Associate Professor Bittar did not express an opinion as to whether any pain condition was organically based.
Dr Nicholas Ingram, consultant psychiatrist
290Dr Ingram said, in his report of 1 March 2023, that there was a possible chronic pain disorder.
291In his fifth report of 9 May 2023, he clarified that, what he was referring to when he used the term “pain disorder”, was a somatic symptom disorder.
292He never confirmed the diagnosis of chronic pain disorder.
293It was his opinion that a pain disorder was a possible diagnosis due to Mr Babakerkhail’s complaints of constant pain in the lower back at the first examination, making it difficult to bend and lift and to stand for too long. This back pain was in addition to pain in the neck, despite there being no clear or consensual diagnosis for the organic cause of his pain.
294Dr Ingram said the assessment of whether there was a pain disorder or not was best left to a surgeon. It appears that he was referring to an organically-based pain syndrome, rather than a psychiatrically-based pain syndrome.
295Given that such comments are outside Dr Ingram’s area of expertise, I have not placed any weight on them.
The TAC’s medico-legal practitioners
296None of the TAC’s doctors diagnosed an organic chronic pain syndrome.
The fifth injury: non-organic somatic symptom disorder
Medical evidence
Mr Babakerkhail’s treating practitioners.
297None of Mr Babakerkhail’s treating doctors diagnosed a non-organic somatic symptom disorder.
Mr Babakerkhail’s medico-legal practitioners
298None of Mr Babakerkhail’s doctors diagnosed a non-organic somatic symptom disorder.
The TAC’s medico-legal practitioners
299Dr Saxby and Associate Professor Esser both commented on Mr Babakerkhail’s psychiatric state – however as discussed earlier at paragraphs [138] and [149], any such comments are outside their area of expertise, and I have had no regard to them.
300None of the TAC’s doctors diagnosed a non-organic somatic symptom disorder.
Medical comments on surveillance
301A number of doctors were shown the surveillance footage and commented on it.
302As can be seen below, none of Mr Babakerkhail’s physical assessors altered their views after seeing the footage.
303However, it is significant that Dr Ingram, psychiatrist, and Dr Walters, neuropsychologist, did alter their views.
Mr Babakerkhail’s treating doctors
Dr Muhammad Khan GP
304Dr Khan said he did not see any inconsistencies on the video.[77]
[77]Plaintiff Exhibit P6
Dr Mina Ghaly, neurologist
305Dr Ghaly said:
“Unfortunately, the few minutes video cannot explain what he was doing before or what situation or condition he felt afterwards. He seems to be walking on the road normally, but it does not mean he is not in pain or can maintain that for any significant period of time, and it does not alter my clinical opinion.”[78]
[78]Plaintiff Exhibit P8, PACB 124
Ms Shurti Gupta, psychologist
306Ms Gupta, in a letter dated 22 May 2023, said that she had looked at the surveillance and considered that it reflected mostly on Mr Babakerkhail’s physical abilities, which was outside her area of expertise.[79]
Mr Babakerkhail’s medico-legal doctors
[79]Plaintiff Exhibit P15, PACB 153
Associate Professor Richard Bittar, consultant neurosurgeon
307Associate Professor Bittar said, in a report dated 16 May 2023:
“Interpretation of surveillance material such as this can be difficult without understanding an individual’s medication intake shortly prior to participating in such activities, as well as without understanding what their pain level was like at the time.
Taking all of the above into account, and notwithstanding the fact that his gait was non-antalgic in the video surveillance material (whereas it was antalgic when I reviewed him in March 2023), there is no reason for me to alter the opinions expressed in my previous reports.”[80]
[80]Plaintiff Exhibit P24, PACB 218
Dr Eman Awad, occupational health specialist
308Dr Awad maintained her opinion after viewing the video footage. In a report dated 31 March 2023,[81] she said the only difference in the footage between Mr Babakerkhail’s presentation to her and the film, was that he walked with a non-antalgic gait. She said the walking in the video was otherwise consistent with his report of functional tolerance of walking ten to fifteen minutes without an aid.
[81]Plaintiff Exhibit P27, PACB 258-259
309She said:
“… I would be cautious of using a very short video to come to conclusions about his functional capabilities. We are not provided with further information such as his analgesics use before or after the walk. There is no information to determine whether the following day his walk would have caused an increase or aggravation of his symptoms or what his level of pain was at the time, given pain can fluctuate. … .”[82]
[82](Ibid) PACB 259
Dr Nicholas Ingram, consultant psychiatrist
310Dr Ingram commented on the video surveillance in his report dated 16 May 2023.
311Dr Ingram noted that the video taken on 23 March 2023 and 3 April 2023 showed Mr Babakerkhail:
“… walking in an unrestricted fashion, talking freely with his friend and showing no evidence of being anxious or in any pain or distress and smiling at times.”[83]
[83]Plaintiff Exhibit P23, PACB 264
312Dr Ingram said this was in contrast to what Mr Babakerkhail reported to him on 1 March 2023, only a few weeks before the video was taken.
313Dr Ingram noted that Mr Babakerkhail specifically had said he had been constantly depressed, that his life was very isolated and that most if the time he spent watching television in his room, or just lying down. Mr Babakerkhail told Dr Ingram that he never felt happy and nothing gave him pleasure, not even being with friends.
314Mr Babakerkhail said that he very rarely went out and was only able to walk for ten to fifteen minutes. He said he was anxious when he had been in a car, and also when walking, as he feared he might have a fall.
315After reviewing the surveillance material, Dr Ingram significantly changed his opinion. He concluded that Mr Babakerkhail had been exaggerating the extent of both his depression and his pain, and that the videos were “certainly in contrast to the picture Mr Babakerkhail presented to [him]”,[84] when he had not seemed interested in the interview and avoided all eye contact.
[84]Plaintiff Exhibit P23, PACB 264
316Dr Ingram then said that he felt Mr Babakerkhail’s level of depression was less severe than he had previously assessed and found that it was difficult to properly assess Mr Babakerkhail, as the history he had given seemed unreliable.
Dr Izabela Walters, clinical neuropsychologist
317Dr Walters prepared a report, dated 15 May 2023,[85] in which she commented on the surveillance.
[85]Plaintiff Exhibit P26, PACB 247-248
318She noted that, when she examined Mr Babakerkhail on examination on 9 June 2022:
“… He appeared to be distressed and in pain. He moved gingerly and rather slowly, and his breathing was rather ragged at times. During testing he held his back with one hand, looked uncomfortable and adjusted his position in the chair. At one time, he asked to stand up to relieve his pain.
The assessment was conducted with the assistance of a Pashto interpreter. Mr Babakerkhail had difficulties communicating both in English (which he used in a short conversation with me in the waiting room) and in his native Pashto. He tended to take long pauses before speaking, and his answers were brief and uninformative. He found it difficult to provide details and to clarify what he meant. The interpreter appeared to frequently repeat, rephrase and explain my questions in order for him to understand them.
Mr Babakerkhail appeared to be upset, miserable and depressed during the assessment. His eyes tended to be generally half-closed and he appeared listless …. .”[86]
[86](Ibid), report dated 9 June 2022, PACB 235
319Given that presentation on clinical examination, it is not surprising that Dr Walters said there was a clear difference between the activities shown in the video compared to Mr Babakerkhail’s presentation to her.
320Dr Walters noted that the video of Mr Babakerkhail walking comfortably, squatting, reaching, and having a conversation smiling, had no direct bearing on his cognitive function.
321It was her view that the video may raise concerns as to the veracity of Mr Babakerkhail’s reported symptoms. She noted that she had not seen Mr Babakerkhail since May 2022, which raised the possibility of a significant recovery occurring.
322However, Dr Walters also said that the video potentially affected her opinion about the aetiology of Mr Babakerkhail’s cognitive dysfunction at the time of her assessment and raised the possibility that his symptoms were not caused by low mental health or pain, but “were instead due to elaboration of milder symptoms or to enactment”.[87]
[87](Ibid), report dated 15 May 2023, PACB 248
323Dr Walters said she would be happy to re-assess Mr Babakerkhail’s cognitive status and re-address the question of veracity of his symptoms in view of the new information. It does not appear that she was ever asked to do so.
Lay evidence
324Mr Babakerkhail tendered a lay affidavit from his house mate, Mr Khoste.[88]
[88]Plaintiff Exhibit P2, PACB 19-22
325Mr Khoste currently lives in a shared house with Mr Babakerkhail. His evidence was based on his observations of Mr Babakerkhail and what Mr Babakerkhail has told him about his pain and restrictions. Such evidence is predicated on the reliability of Mr Babakerkhail’s presentation and statements to him.
326Given my findings on reliability and credit set out below, I place little weight on the evidence of Mr Khoste, contained in his affidavit affirmed 26 April 2023, despite the fact he was not cross-examined.
327In this case, the failure to cross-examine Mr Khoste was not significant, as the Court has formed the view that Mr Babakerkhail’s reliability was so weakened in cross-examination, there was no real need to cross-examine Mr Khoste.[89]
[89]Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 at paragraph [47]
Was Mr Babakerkhail a reliable or credible witness?
328As has been said many times in serious injury applications, the credit of a plaintiff will often be critical to the resolution of the application.[90]
[90]See for example Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10.
329This case is no exception. Mr Babakerkhail’s credit and reliability is central to the determination of the application.
TAC’s submissions on credit
330The TAC made a sustained attack on Mr Babakerkhail’s credit and reliability.
331The TAC submitted that Mr Babakerkhail had failed to report pre-existing psychiatric problems to medical practitioners and on occasion outright denied the existence of any pre-existing psychiatric problems.
332The TAC said that, given Mr Babakerkhail’s unreliability, the Court was placed in a difficult position to determine whether or not he had disentangled the various contributors to his pain and alleged disabilities.
Mr Babakerkhail’s submissions on credit
333Senior Counsel for Mr Babakerkhail submitted that the Court should have great confidence in Mr Babakerkhail, as he was a witness of truth. Senior Counsel used the example of Mr Babakerkhail producing packets of medication that he was currently taking as evidence of his truthfulness.
334It was said that Mr Babakerkhail was doing his best to be frank and had not sought to “gild the lily” about his medication. It was also said that he had been prepared to make concessions in cross-examination.
335Senior Counsel stated that there was a “blatant” exception[91] to Mr Babakerkhail’s reliability, in that he was not particularly upfront about his psychiatric history.
[91]T108, L16
336It was submitted that Mr Babakerkhail’s failure to be frank with Dr Jager, consultant psychiatrist, was not something which ought to be held against Mr Babakerkhail, because Dr Jager was a medico-legal examiner commissioned by the TAC.
Findings on credit
337Having seen and heard Mr Babakerkhail in the witness box, and taking into account the possible ameliorating effects of his language difficulties, his level of education, and potential cultural issues, I formed an unfavourable impression of him.
338The following matters caused me concern with Mr Babakerkhail’s presentation:
· When he appeared at court he was dishevelled, and his hair was unkempt, and he appeared flat and listless.
· In contrast, on the video surveillance, he was neatly and cleanly dressed, his hair was tidily combed, and he was animatedly engaging in conversations with a friend.
· He denied any past psychiatric history to his treating psychiatrists Dr McQuillan[92] and Dr Jayathilake,[93] and to his treating psychologist, Ms Gupta.[94]
· He denied any past psychiatric history when assessed by medico-legal assessor, Dr Ingram, on two occasions,[95] and when assessed by Dr Jager.[96]
[92]Defendant Exhibit D14, DCB 163-164, Letter from Dr McQuillan to Dr Khan, dated 14 May 2020.
[93]Plaintiff Exhibit P16, PACB 155, Letter from Dr Jayathilake to Dr Khan, dated 13 December 2022 and PACB 157, Medical report of Dr Jayathilake, dated 14 April 2023.
[94]Plaintiff Exhibit P15, PACB 150
[95]Plaintiff Exhibit P23, PACB 181 and 189
[96]Defendant’s Exhibit D1, DCB 9
339Mr Babakerkhail did not make eye contact with the Bench and, for the most part, gave his evidence facing away from the Bench, or with his back to the Bench. The Court did not interpret such behaviour as necessarily being disrespectful to the Court. It may well have been due to some form of unexplained cultural barrier.
340Even though the video was short in duration, there was a marked contrast between his presentation in Court, to medico-legal examiners, and the surveillance.
341This contrast was commented on by a number of medico-legal experts and their detailed comments are set out above.
342I reject Mr Babakerkhail’s submission that his failure to be frank with Dr Jager, a medico-legal witness, could be explained on the basis that the TAC commissioned Dr Jager.
343The submission lacked any merit for at least three reasons:
(a) it was inaccurate – as noted above at paragraph 339, Mr Babakerkhail denied any pre-existing psychiatric problems to a number of doctors;
(b) even if Dr Jager was the only doctor provided with an inaccurate history, the fact that he was a medico-legal examiner engaged by the TAC does not impact upon Mr Babakerkhail’s obligation to be frank and truthful;
(c) Mr Babakerkhail did not provide an explanation for his false histories.
344Mr Babakerkhail’s denial of any pre-accident psychiatric problems to his treating team, as well as to medico-legal examiners, suggests that he is either unreliable or he willingly and deliberately withheld this information.
345It is not necessary to determine whether his failure to disclose was deliberate or otherwise for the purposes of this application. It is sufficient for the Court to determine whether he was reliable or not.
346I conclude that the material, overall, including the surveillance material, has impugned Mr Babakerkhail’s reliability.
347Consequently, I have viewed Mr Babakerkhail’s evidence as to the ongoing consequences of the transport-accident-related injuries with caution, and I only accept the asserted consequences if there is other objective evidence to support them.
348I am mindful of what the Court of Appeal has said in cases such as Dordev v Cowan and Ors[97] and Petrovic v Victorian WorkCover Authority,[98] and most recently in Popal v Transport Accident Commission,[99] in relation to a plaintiff’s credit in serious injury applications.
[97][2006] VSCA 254
[98][2018] VSCA 243
[99](Supra)
349It is clear that a plaintiff’s credibility is relevant, not only to the question of whether his evidence should be accepted: It is also relevant to the reliability of the medical evidence presented, because the opinions of doctors are essentially dependent on the credibility and reliability of the history given to them by a plaintiff.
350It is also important that the relevance of radiology is not overstated.
351As Chernov JA said in Dordev v Cowan & Ors, the fact that there is pathology (in this case radiology), does not, of itself, establish consequences of any particular degree of gravity or a specific source. It was noted that doctors had to depend on the accuracy of histories provided to them by their patient as to their true level of disability. His Honour therefore reasoned that, medical opinion based on accounts by a witness as to their symptoms may have little or no probative weight where a court has determined that the witness was not reliable.[100]
[100]Dordev v Cowan and Ors (supra) at paragraph [19]
352In this case, after considering the evidence overall, noting the discrepancies in Mr Babakerkhail’s presentation to doctors in formal clinical examination, when compared to informal observations by the doctors, the relatively benign radiology and the amended opinions of Dr Ingram and Dr Walters after viewing surveillance footage, the Court does not accept that Mr Babakerkhail has presented either to the Court or medical practitioners in a frank and credible way.
Findings re first injury: spine
353It was submitted on behalf of Mr Babakerkhail that the findings of Professor Bittar as to the existence of muscle spasm were very significant.
354At the initial examination, Professor Bittar found there was no muscle spasm in the cervical spine, however he recorded spasm in the lumbosacral spine.
355When he re-examined Mr Babakerkhail in 2023, Professor Bittar found muscle spasm in both the cervical spine and the lumbar spine.
356Professor Bittar did not describe the extent, or the nature of the spasm observed. He did not provide any opinion as to the relevance of the observed muscle spasm.
357Professor Bittar is the only practitioner to have recorded such an observation.
358In fact, other doctors have specifically indicated that no spasms were observed.[101]
[101]Defendant Exhibit D2, DCB 15 (Dr Barton); Defendant Exhibit D3, DCB 21 (Dr Saxby)
359Doing the best I can with this evidence, it appears that any muscle spasm is intermittent, and it is not constant. Its clinical significance is unclear.
360I have carefully considered medical opinions of the radiological material. At its highest, there was evidence of an annular fissure on the radiology in February 2020, which did not appear on the radiology of October 2020, or the radiology of May 2021. There is no evidence of any significant compression on nerve roots on either side.
361Given the way in which Mr Babakerkhail presented to doctors such as Dr Ingram, Dr Walters, Dr Barton, Dr Saxby and Associate Professor Esser, with such florid exaggeration,[102] it is difficult to accept that any ongoing soft-tissue problems in Mr Babakerkhail’s cervical and lumbar spine persist.
[102] As described in paragraphs [147], [157], [171], [288], [194] and [288] above.
362Given the findings I have made in relation to Mr Babakerkhail’s reliability, I cannot be satisfied as to the nature and extent of any ongoing consequences of any transport-accident-related spinal injury.
363Mr Babakerkhail’s claim for leave in respect of his spine fails.
Findings re second injury: head injury
364At its highest, the evidence suggests that Mr Babakerkhail may have sustained a mild head injury in the transport accident.
365As noted earlier, a GCS of 14/15 was recorded by Ambulance officers and there was reference in the Ambulance notes to a potential head strike.
366The hospital recorded a GCS of 13/15 but did not address why there had been a slight diminution in the GCS. The hospital notes do not refer to a head strike.
367Both sets of records referred to Mr Babakerkhail’s confusion and the difficulties in obtaining a history from him.
368Dr Ghaly diagnosed post-concussion migraines in mid-2022. It is not clear how she reached this diagnosis when she was not provided with a history of head strike or concussion, or any head injury, in the transport accident, and in circumstances where she accepted that the brain MRI scans were essentially normal.
369Dr Khan conceded that the question of a head injury was an area outside his level of expertise and that he would defer to neurological opinions. He accepted Dr Ghaly’s diagnosis.
370Dr Khan also had the benefit of an opinion from another neurologist, Dr Chan, but no material from Dr Chan has been tendered, so the Court does not know Dr Chan’s opinion.
371Dr Sadeghi said that Mr Babakerkhail’s headaches had been attributed to post-concussion syndrome, but noted the normal CT and MRI scans of the brain, he did not specifically adopt the diagnosis, nor comment on the relationship between the headaches and any transport-accident head injury.
372Dr Awad supported the proposition that there may have been a head injury by relying on the GCS, although she was unsure whether there was an ongoing organic condition.
373Dr Ng initially agreed with a diagnosis of post-concussion syndrome. However, he changed his mind after reviewing the opinion of Dr Walters and said that Mr Babakerkhail’s neurocognitive and memory symptoms were not secondary to any organic head injury.
374The Court prefers the opinion of Dr Walters that, while there may have been a mild head injury, there was no evidence of any ongoing head injury. She formed that view after she considered the medical evidence as a whole, the results of her neuropsychological testing, and the contemporaneous medical notes, not just on the basis of Mr Babakerkhail’s reported symptoms.
375In considering the evidence as a whole, any confusion on presentation to the Ambulance Victoria officers, and at the hospital, may equally be explained by the language difficulties faced by Mr Babakerkhail, similar to those mentioned in the clinical notes and in many medical reports.
376Mr Babakerkhail chose to use an interpreter exclusively in court, so the Court was unable to assess his level of competency in English.
377Mr Babakerkhail’s claim for leave in relation to serious injury arising out of a transport-accident-related head injury fails.
Findings on the third injury: psychiatric injury
378Mr Babakerkhail must establish that he has a severe long-term mental or severe long-term behavioural disturbance or disorder.
379As noted in paragraph 13 above, the word “severe” is stronger than the word “serious”.
380In assessing the severity of impairment consequences of a plaintiff’s psychiatric condition, I must identify and bring into account all the factors which are relevant to such an assessment.
381The extent of treatment undergone by Mr Babakerkhail for his psychiatric condition is just one circumstance to be considered.
382The extent of Mr Babakerkhail’s current psychiatric treatment is unclear.
383On first blush, it would appear that Mr Babakerkhail has a psychiatric condition of sufficient severity.
384However, as appropriately conceded by Senior Counsel for Mr Babakerkhail, an adverse finding as to Mr Babakerkhail’s credibility and/ or reliability can make it more difficult to establish a claim under subparagraph (c).[103]
[103]T116, L7-8
385The opinions of a number of the psychiatrists in this case are flawed because they were based on inaccurate histories.
386Further, such opinions were based on the reliability and accuracy of the reporting of symptoms and consequences, as provided by Mr Babakerkhail.
387The reliability of any psychiatric diagnoses was effectively demolished by Mr Babakerkhail’s own psychiatric and neuropsychological medico-legal doctors, who altered their opinions after seeing the surveillance.
388It is noted that a number of doctors did not alter their opinions on physical injuries after they were provided with the surveillance.
389In contrast, insofar as psychiatric and psychological presentation was concerned, Dr Ingram and Dr Walters considered that the surveillance film seriously undermined the reliability of Mr Babakerkhail and their assessment of him.
390As a result, I find that the impairment consequences of Mr Babakerkhail’s psychiatric condition do not reach the description of “significant”. Therefore, they do not meet the higher test of “severe”.
391The application under s93(17)(c) is dismissed.
Findings on the fourth injury: organic somatic symptom disorder and findings on the fifth injury: non-organic somatic symptom disorder
392Very little attention was paid to this aspect of Mr Babakerkhail’s claim in submissions.
393The medical evidence, viewed as a whole, is insufficient to establish that Mr Babakerkhail has either an organic or non-organic somatic symptom disorder. The medical evidence is confused as to whether he has a somatic symptom disorder and, if so, whether there is an organic basis for the same.
394I am unable to reach a conclusion in that regard.
395Further, the impairment consequences claimed as a result of any somatic symptom disorder, whether it be organic or non-organic, are very much dependent upon my assessment of Mr Babakerkhail’s reliability. As stated earlier, given the unreliability of Mr Babakerkhail, the Court cannot determine whether he has an organic or non-organic somatic symptom disorder, let alone determine the consequences of the same.
396Mr Babakerkhail has the burden of identifying each compensable injury and the impairment which flows from each, before the Court can then consider whether the consequences satisfy the relevant threshold.
397In this instance, Mr Babakerkhail has failed at the first hurdle, in that he has not established the existence of a pain disorder (whether it be organically or non-organically based) and has not discharged his burden of proof sufficiently.
398The application in relation to organic somatic symptom disorder under s93(17)(a) is dismissed.
399Further, the application in relation to a non-organic somatic symptom disorder under s93(17)(c) is dismissed.
Conclusion
400Mr Babakerkhail has not established that any of the five specific injuries claimed satisfy the serious injury test under subparagraph (a) or under subparagraph (c).
401Consequently, the application is dismissed.
402I will hear the parties on the question of costs.
---
0
7
0