Baco v Transport Accident Commission

[2024] VCC 857

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-04181

RISTO BACO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2024
DATE OF JUDGMENT:	14 June 2024
CASE MAY BE CITED AS:	Baco v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2024] VCC 857

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – Psychiatric injury – Credit – Video surveillance

Legislation Cited:      Transport Accident Act 1986

Cases Cited:Popal v Transport Accident Commission [2023] VSCA 222; Rowe v Transport Accident Commission [2017] VSCA 377; Taylor v Transport Accident Commission [2022] VSCA 269

Judgment:                  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W R Middleton KC with Ms I Murphy	Zaparas Lawyers Pty Ltd
For the Defendant	Mr C J Blanden KC with Ms K M Manning	Hall & Wilcox

HIS HONOUR:

Introduction

1On 16 September 2013, Mr Risto Baco (“the plaintiff”) was driving a car on the Western Ring Road, near the entrance with McIntyre Road, Sunshine, Victoria, when he was involved in an unfortunate accident.  The accident happened after a vehicle lost control, requiring the plaintiff to take evasive action and, in the process, collide with a concrete barrier (“the accident”). 

2For this proceeding, there is no dispute that the accident occurred in the circumstances described by the plaintiff.

3In this proceeding, the plaintiff claimed to have suffered a “serious injury” because of the accident within the meaning of s93 of the Transport Accident Act 1986 (“the Act”).

4The plaintiff initially relied upon a physical injury to the spine and separately a psychiatric reaction as a “serious injury” arising from the accident.  But at the commencement of the hearing, he abandoned any claim based on a physical injury, and instead relied on a claimed “serious injury” by way of a “severe long-term mental or severe long-term behavioural disturbance or disorder”.

5Relevant to the claimed “serious injury”, the proceeding was conducted swiftly and in “the usual manner”.  The parties tendered documents from Court books, including affidavits sworn by the plaintiff and by his ex‑partner.  In addition, the defendant played in Court covert video surveillance of the plaintiff obtained at various times on 23 February and 4 April 2023.  The plaintiff gave oral evidence as to the contents of his affidavits, what he had said to the doctors, and what was seen in the video surveillance.

6The legal principles are well-known and not in dispute.  To establish a “serious injury”, the plaintiff must identify impairment consequences from the claimed psychiatric injury that produce a “very considerable” consequence to him from identified pain and suffering impairment and/or pecuniary loss impairment, noting that overall, the psychiatric condition must be “severe”.

Contentions and a conundrum

7In resisting the plaintiff’s claim for “serious injury”, the defendant highlighted what it said was the “high hurdle” involved in a claim based on a psychiatric injury.[1] 

[1]Transcript (“T”) 50, Line/s (“L”) 26-29.

8The defendant submitted that this proceeding was an unusual case because, while the plaintiff has had psychological treatment, there have been unexplained gaps in that treatment, and, more importantly, he had never been treated by a psychiatrist and has never really been treated with any relevant medication.[2]  The defendant said those facts went to the question of “severe”.

[2]T 51, L 13-16.

9Next, senior counsel for the defendant hit the nail on the head in final submission when he said the Court had the “interesting conundrum” of medico-legal psychiatric opinions that were at the opposite ends of a spectrum. 

10The conundrum arises in part because, as I shall come to, on the one hand, Associate Professor George Mendelson, psychiatrist, in a medico-legal report dated 27 April 2023,[3] expressed an opinion that the plaintiff had no diagnosable psychiatric injury.  But on the other hand, Dr Nathan Serry, psychiatrist, most recently on 29 January 2024,[4] expressed the opinion that the plaintiff presented with an essentially untreated and significant psychotic condition.  Dr Serry also said that because of the severity of that condition, the plaintiff did not have the capacity to understand legal advice, provide instructions, or manage a settlement sum.[5] 

[3]Defendant’s Court Book (“DCB”) 57.

[4]Plaintiff’s Court Book (“PCB”) 206.

[5]PCB 212.

11Indeed, based on Dr Serry’s opinion, the plaintiff appointed a litigation guardian to bring this proceeding on his behalf.

12It could be said that not only were Associate Professor Mendelson and Dr Serry on different ends of a spectrum, but also almost at a point where it could be wondered whether they had examined the same person, so opposite are the opinions.

13In that regard, the defendant accepted that at first blush those opinions seem irreconcilable.  It submitted that the Court should approach the conundrum from the perspective as to whether, in the case of Dr Serry, he had been presented with evidence of an acceptable nature to support his opinion.  The defendant submitted that what had been told to Dr Serry did not really gel when the Court looked at the objective evidence of how the plaintiff was living his life.[6]

[6]T 53, L 15-19.

14In that context, at this early stage, it can be identified that one of the key disputes in this proceeding is the factual conclusions that the Court must make and how those conclusions influence which of the medical opinions is preferred.

15The defendant’s primary contention, while not precisely expressed this way, is consistent with what has been said by the Court of Appeal on several occasions, most recently in Popal v Transport Accident Commission,[7] that particularly for “serious injury” claims based on a psychiatric injury, the opinion of medical examiners is often only as good as the quality of the history provided to them.

[7] [2023] VSCA 222.

16In that context, the defendant highlighted not only the lack of treatment, but also what was seen in the tendered video surveillance, to submit that the opinion of Dr Serry should not be accepted and that the plaintiff either did not have a psychiatric condition, or if he did, it was not “severe”.

17In response, senior counsel for the plaintiff commenced by submitting that the video surveillance was of no real value one way or the other for the claim based on a psychiatric injury.  It was submitted that the plaintiff was a complicated individual who had contradicted himself in respect to some of his evidence,[8] but overall, his credit had survived cross-examination. 

[8]T 58, L 18.

18In an analysis as to whether the plaintiff had severe impairment consequences, it was submitted on his behalf that the starting point was the longevity of the condition and the treatment that he has had, with the treating psychologist.  Further, there had been an attempt to prescribe relevant medication, but the plaintiff had been resistant to that, or to a referral to a psychiatrist, because of either his underlying personality, or because of his illness.  Therefore, contrary to the submission of the defendant, the issue of treatment worked in his favour and there was no reason to dismiss the extensive, ongoing psychological treatment, as a relevant consequence for a conclusion of a ‘serious injury”.[9]    

[9]        T 70, L 5-13.

19Next, the plaintiff correctly submitted that the Court must consider the whole of the evidence.  In that context, he submitted that the treating general practitioner, treating psychologist, and Dr Serry all supported a diagnosis of an accident-related psychiatric condition, and they should be preferred to the opinion from Associate Professor Mendelson.[10]

[10]T 66, L 5-9.

20Returning to the conundrum, in an exchange with senior counsel for the defendant after the plaintiff had completed oral submissions, I enquired as to whether it would be conceded that the plaintiff had suffered a “serious injury” if the Court accepted the opinions from Dr Serry.  In response, senior counsel for the defendant, entirely appropriately, said that “Your Honour has probably answered the case if Your Honour reaches that conclusion” but qualified that concession by saying that “of course… if you reach the view that he has got the condition you shouldn’t reach the view that it is caused by the accident”.[11]

[11]        T 74, L 27-29.

Issues for determination

21The issues for determination must be considered in the context of the defendant’s challenge to the credit or the reliability of the evidence of the plaintiff.

22Further, the issues are to be resolved after a consideration of the whole of the evidence and, because of the conundrum caused by the medico-legal opinions, the accuracy of the evidence upon which those opinions were expressed.

23In that context, the issues in this proceeding can be distilled down to the following:

(i)First, does the plaintiff have an ongoing accident-related psychiatric condition;

(ii)Second, does any accident-related psychiatric condition include the psychotic condition (if it exists) as diagnosed by Dr Serry; and

(iii)Third, if the plaintiff has an accident-related psychiatric condition, is the condition “serious”?

Evidence

Plaintiff’s affidavit evidence

24Turning then to the evidence of the plaintiff and commencing with what he said in affidavits sworn by him on 11 September 2018[12] and 19 December 2023.[13]

[12]        PCB 14.

[13]        PCB 21.

25In the first affidavit, the plaintiff broadly set out his background of having been born in Bosnia, his move to Australia and life here, including his work history. He then described the accident, the development of pain in his neck, back, left knee, left wrist and right shoulder, an inability to properly attend his job as a diesel mechanic for Spotless Facility Management (“Spotless”) and his early treatment after the accident.

26Next, the plaintiff set out his referral for conservative treatment for his various aches and pains.  He described that by 2014 he was off work, lost his rental property and felt hopeless, anxious and stressed.  He recorded that in June 2014 his general practitioner, Dr Christos Pavlidis, referred him to a psychologist, Dr Daliboha Lazarevic-Bunijevacm, a Serbian-speaking psychologist.[14]

[14]PCB 17.

27The first affidavit set out in some detail the plaintiff’s claimed ongoing physical conditions that he attributed to the accident as well as his need for ongoing conservative treatment.  However, regarding the psychiatric condition, he said:

“I continue to see my psychologist, Dr Daliboha Lazarevic-Bunijevacm, monthly. I feel depressed a lot of the time. My concentration and memory are not good.  I feel tired and lethargic a lot of the time and lack energy and focus.  I am very anxious about my health.  I continue to think about the accident a lot, and have accident related dreams that are very upsetting.  My sleep is terrible.  Before the accident I could sleep 12 hours in the one position without moving.  I can now only sleep 2 or 3 hours at a time.  Pain wakes me.  It is mostly stomach pain, right arm pain and numbness, and my neck becoming sore and locked.

I am very anxious and distracted when in a car.  I prefer not to drive.  I sold my car because I didn’t like driving and felt unsafe.  I tried to drive after the accident but I would see things that weren’t there, like a bear or shadow, and break [sic] hard, which was very dangerous and made me more anxious.  A few months ago I bought a car as I need to be able to see my children.  I still prefer not to drive and mostly use public transport.

I have thoughts and nightmares regularly about doctors telling me I am going to die.  I can’t seem to stop having such thoughts and nightmares.  At night the pain I experience makes me feel hopeless and at times I want to surrender to death.

I am not well enough to work.  I can’t focus.  I forget things.  I have very negative thoughts.  I am trying to beat them.  I try to recover my best energy.  Sometimes I buzzing in my ears.  I am easily shocked and stressed by small things that then make me very anxious.”[15]

[15]PCB 18, paragraphs 24‑27.

28Relevant to his life and capacity to work, the plaintiff said in that affidavit that:

“At the time of the accident I kept a small farm at Heathcote as a hobby.  I had 5 pigs and 25 piglets and a dozen sheep.  I wanted to provide healthy free range food for my children.  I leased about 40 acres of land.  I am now unable to do my farming due to my pain, limitations and psychological symptoms.  This really saddens me as I really enjoyed my farm work.

I am devoted to my children.  I see my children every weekend in Geelong.  I try to hide my sad face when I see them.  My younger children sometimes ask me why I have a sad face.  I feel hopeless because I cannot support them financially.  I avoid lifting them up because of my pain.  I have to tell them to slow down and be careful around me.

Before the accident I had a job, a home and money.  I was independent and happy.  Now I have none of those things, I am in pain a lot of the time and feel very unwell psychologically.

…

I feel like many of the doctors I have dealt with since the accident have not taken me seriously and I feel sometimes I have been mistreated.  I have also felt at times that the TAC has been unsympathetic toward my situation.  I try to remember that I am my own best doctor.  I try to do what is best for me.  I try to be positive because I am lucky I didn’t die in the accident.  But I do feel that the accident has ruined my life.”[16]

[16]PCB 19‑20, paragraphs 36‑38 and 41.

29Then in a supplementary affidavit sworn 19 December 2023, in which the plaintiff described himself as having no fixed address, he said as follows:

“I have basically remained homeless.  I spend about 3-4 days each week on a farm at Millgrove.  I have a caravan at the farm where I sleep.  I do not work on the farm, however I have a small section where I grow things and at times tinker on things such as machines.  The owners of the farm are of Chinese heritage.  I have known them for about 2 years.

When I am not sleeping at the farm then I usually sleep in my car.  Occasionally I will stay at a friend’s house.

My physical condition, my pain and my limitations have not changed a great deal since I swore my previous affidavit. 

I believe my psychological condition has got worse.

My life continues to be greatly impacted by my transport accident-related injuries.”[17]

[17]PCB 22, paragraphs 3‑7.

30The plaintiff then described his ongoing treatment with Dr Pavlidis as follows:

“Dr Pavlidis has prescribed me Panadeine Forte, Panadol Osteo and Tramadol due to pain in my neck and back.  He also prescribed Cymbalta for my depression and anxiety.  I try and avoid taking analgesic medication because my stomach is sensitive to it.  I continue to use Panadeine Forte and Paracetamol when my pain is severe.  I usually only take ½ a tablet at time.  I also use natural remedies such as Dandelion to treat my pain.  The Dandelions grow naturally on the farm and I also pick them from the side of the road.”[18]

[18]PCB 22, paragraph 9.

31Relevant to the claimed serious injury, he then described how he continued to see his psychologist monthly, usually via telehealth, and how he had ceased taking Cymbalta in or about early 2020.[19]

[19]PCB 22.

32The plaintiff then set out ongoing consequences, many of which were directed towards claimed symptoms in his neck and back, as follows:

“Throughout 2020 I worked as a baker and part time delivery driver.  I was at times working approximately 21 hours per week.  I would work approximately 3 hours per day/night, 7 days per week.  I did this for about 12 months, but I really struggled due pain in my neck and back.  Activities like bending, lifting and getting in and out of the delivery truck make my low back pain significantly worse.  I stopped work because I could not manage with the aggravation to my back pain.  I also struggled from a psychological perspective.

Due to the aggravation of my back pain, I asked Dr Pavlidis to send me for a further scan of my back.  On 25 January 2021 I had had a CT of my lumbar spine.  Dr Pavlidis told me that there were no significant changes from previous scan.

In about October 2022 I obtained work as a truck driver, driving and loading for a steel company.  My hours of work varied, some weeks I worked full time, others I worked less.  The work considerably aggravated my back pian [sic] and the pain in my tail bone.  I tried to continue by using cushions and pillows to reduce my back pain and take analgesic medication, but it became too much, and I had to stop.  I reduced my hours and eventually stopped work in about March 2023.  In addition to the aggravation of my physical symptoms I found concentrating very difficult and I made lots of mistakes.  I would make basic errors like leaving the keys in the car or leaving the truck unlocked.  I could not keep the work up because it aggravated my neck and back pain and because of my psychological and psychiatric symptoms.

In or about July 2023 I did some casual truck driving work for an old friend who had a company called Hire Mountain Transport.  I worked for about three weeks.  I had to get in and out of the truck between 10 to 20 times per day.  I couldn’t maintain the work because it aggravated my neck and back pain.  I was paid cash.  My records indicate that I was paid $4,332.00 gross, for my work with Hire Mountain Transport.

Since about August 2023, I have worked on and off for Hertz Enterprise doing tip truck driving.  My records indicate that I worked 70 hours in August and 58 hours in September.  They were pushing me to increase my hours and I couldn’t manage it.  Again, I had to stop due to the aggravation my neck and back symptoms.  I was also making a lot of errors when I was on the road driving the truck.  I did one shift to help them out last week and worked for 7 hours.  I was paid cash.  My records indicate that I was paid $5,400.00 gross, for my work with Hertz Enterprise.

I am not very good at keeping records, I get easily overwhelmed.  My intention is to pay tax on the money I have earnt.  I have not yet lodged a tax return for the 2023 financial year.

Each time I have attempted to work I have had to take Panadeine Forte every day to get through the workday and to manage my neck and back pain.  I don’t feel like I hold down regular work because of my physical restrictions but also because I can’t focus properly, I forget things and I make mistakes.  I also felt it was dangerous for me to be driving because I was having lots of near misses.

From time to time, I have also collected and sold scrap metal.  I have sourced items from the side of the road and from market place.  Sometimes, I sell the metal to help supplement my income and sometimes I keep some things to tinker on.  I find the process of collecting the scrap metal therapeutic.  I can work at my own pace, I can pick and choose what I want to collect and I get to be by myself.”[20]

[20]PCB 23-24, paragraphs 15‑22.

33The plaintiff then went on to describe ongoing physical symptoms in more detail, including that he had difficulty standing for more than about 15 or 20 minutes because of a need to stretch his neck and back, and could only walk comfortably for about 30 minutes before he had to sit down and rest.[21]

[21]PCB 24.

34Relevant to the claimed “serious injury”, the plaintiff said as follows:

“I refer to paragraphs 25-27 of my previous affidavit.  I continue to be psychologically affected as described.  Despite having ongoing treatment with Ms Daliborka Lazarevic, psychologist, since 2014 my psychological and psychiatric symptoms have persisted. Since my previous affidavit I feel as though my paranoid thoughts have become more severe.

I still experience flashbacks of the accident; these are usually triggered by a driving experience.  When I have a flashback, I feel anxious and my heart races.  I also have a dissociative experience where I return to the transport accident site and the aftermath of the accident. 

I experience a persistent noise in my right ear.  I would describe this like having a Bluetooth device in my ear.  There feels like there is a charge and voltage.  I feel like I cannot escape this noise and it associated [sic] with a pain in my ear and head. 

I avoid watching TV or listening to the radio because I get paranoid that messages are being passed to me telepathically.

Since the transport accident I have a tendency to be easily stressed and worried.  I continue to think about the accident a lot and my mind is preoccupied with various ideas particularly about the consequences of the transport accident on my life.  I am not able to cope with stressors like I was prior to the transport accident.  I get pre-occupied with small things.  I find it difficult to focus on a particular task.

My energy levels are low.  I become physically and psychologically tired very easily now. When there is an increase in my neck or back pain, I find it more difficult to focus and concentrate.  When I have attempted to work, it has aggravated my physical symptoms.  Due to the increased pain, I become more forgetful and distracted.  At work I was making mistakes like taking wrong turns.

I feel as though stress aggravates my pain. My physical symptoms and pain cause me a great deal of upset and anxiety.  I now spend a great deal of time meditating.  Since the accident I have tried to seek harmony and try and quiet my mind.  I feel better when I am nature [sic].

I spend three to four days a week on the farm.  I find the farm peaceful and quiet.  Since the transport accident I spend most of my time alone.  I now prefer to distance myself from other people.  In a public situation I often feel like people get too close to me and they appear larger than they actually are.  I have become very isolated.  I avoid people because I feel less stressed, and it is best the way for me to manage.

My sleep continues to be affected by the transport accident.  I rarely get a full night sleep.  I usually sleep between 5‑6 hours a night, however this is broken up into shorter spells of 2-3 hours at a time.  This is because of pain, it often wakes me and I continue to have accident-related dreams and my anxiety makes it difficult to shut my mind off at night and when I do wake, I have trouble falling back to sleep.  These dreams are now less frequent and less vivid than they once were.  

I refer to paragraph 37 of my previous affidavit.  I do not see my children regularly anymore.  I tried for a long time to pretend like nothing was wrong.  I felt I couldn’t cover up my psychological state and I felt it was better that I stopped seeing them.  I couldn’t keep up conversations with them.  I was worried that they might climb on me and aggravate my neck of back pain.  I also experience mood swings and get irritated easily.  I didn’t want my children to be exposed to that.  

I continue to feel irritable and angry.  I feel as though I have not been given the proper assistance from medical practitioners.  I struggle with a constant sense of sadness.  When my pain is better managed, I feel less sad and depressed.  I feel as though I failed.  Since the transport accident I lost my job, my home and the relationship with my children.

My confidence and self-esteem were both very low, I feel psychologically very vulnerable.  I feel like I am just trying to survive.  I feel as though often I let people down.

Since the transport accident, I feel like I have been in survival mode.  Day-to-day I continue to struggle with most aspects of my life.  I have never recovered from the physical and psychological impacts of the transport accident.”[22]

[22]PCB 25‑26, paragraphs 29‑41

Plaintiff’s oral evidence

35At the start of his oral evidence, the plaintiff said that he was currently of no fixed address.  He otherwise confirmed the contents of his affidavits as true and correct, save that he attempted to clarify what he had said in paragraph 30 of the second affidavit about returning to the accident scene.[23]

[23]T 11, L 21‑29.

36Pausing, the plaintiff’s oral evidence was delayed for a professional interpreter to attend Court, but in the end that was unnecessary as the plaintiff gave evidence in English.

37The plaintiff was then cross-examined about what he had said in his affidavits and the histories given to medical practitioners.  The cross-examination commenced with an inquiry about where the plaintiff had stayed the previous evening and the arrangement that he had to stay on the farm at Millgrove.  The summary of that evidence was that the plaintiff stays at the farm in Millgrove as much as he likes, with a “Chinese family”[24] who have some involvement or ownership of the farm.  He had been staying at the farm for about two and a half years.  He said long-lasting friends of his put him in touch with the Chinese family and arranged for him to be able to stay at the farm.  He described a woman named “Gao”[25] as the person who let him stay at the farm to help him out.  He was asked whether he did activities at the farm and said, “I do bits, I do bits”.[26]

[24]        I will adopt the language used by the plaintiff but do not intend any disrespect in doing so.

[25]T 18, L 24.

[26]T 18, L 28‑29.

38The plaintiff was cross-examined about whether he was a caretaker at the farm and he said he was not, but he just helps out.  He said a mother and daughter had been living at the farm but had gone back overseas.  He said, “only some other friends come in to do gardening”.[27]  He said he would be staying at the farm until he got a better or safer solution and that he was not working or receiving any benefits at the moment.

[27]T 19, L 7‑9.

39The plaintiff was then cross-examined about the work he did in 2023.  He was cross-examined about collecting scrap metal.  He was cross-examined about his employment history and his taxation summaries.

40The plaintiff was cross-examined about the job at Spotless and what happened after the accident.  He agreed that he returned to work for several months.  It was put to him that he left that job for no reason, which he said was incorrect.  When asked what had happened to cause him to leave that job, he said:

“Q:   What do you say happened?---

A:Because I have to investigate a lot of struggle my body, what is wrong, what is going on and all symptoms the doctors suspected cancer or whatever is so I’m doing blood tests again and that morning when I went to do blood test, the manager contact me and he said, ‘Come to work or come to resign’, so I just told him, ‘I’m struggling to keeping up life, I’m in so much pain and how like (indistinct) managing to keep up, I’m just doing blood test and come in soon I finish’, and he said, ‘Come to resign’ – ‘Come to work or come to resign.’  So I took my phone out of my hand, I didn’t have phone for months.  After blood test I went to company, they said, ‘You are abandoned from work.  You have to come back here, you are abandoned from work.’  I was going to show them, abandoned, how can I be abandoned?

Q:But they said to you you’d abandoned work?---

A:Abandoned from work, that’s what they told me.”[28]

[28]T 21, L 27 – T 22, L 13.

41There was then cross-examination about his receipt of Centrelink or TAC payments and a return to work as a part-time delivery driver for a bakery during 2020.  The plaintiff said he got that job through some friends, and because he could not sleep at night, they thought the job would be suitable for him.  He said he did that work for a bit longer than six months before doing some casual truck driving.[29]  He then described the most recent job in 2023, driving a tip truck.  He said that finished because he just could not do the work.

[29]T 23.

42The plaintiff was then cross-examined about treatment with Dr Pavlidis.  He said that he did not see Dr Pavlidis that often.[30]  He said he was managing his own strategy.  He said he continued to see the psychologist.  He was asked about the gap in treatment between 21 May 2019 and 8 November 2021, but said there was not a gap,[31] before qualifying that to say “not that I remember”.[32]  He qualified that again later on in his evidence by saying he did not go and see her in that period because “I felt better.  I improve a lot at that stage and I pick up that really good work”.[33]

[30]T 24, L 12.

[31]T 25, L 12.

[32]T 25, L 13.

[33]T 26, L 18‑19.

43Then, regarding the return for psychological treatment in November 2021, he said his symptoms were worsening, especially mentally.  He could not keep the job so that is why he went back, but it was pointed out that he had in fact finished work at the end of 2020, which he said did not match with what was registered in his head.[34]

[34]T 28, L 3.

44The plaintiff was then cross-examined about driving a car.  He said he did not own one, but the Chinese family from the farm let him use a car.  At that point, the defendant played and tendered the video surveillance obtained of the plaintiff on various dates and times in February and April 2023.

45Pausing, I am conscious that the video surveillance must be considered both in time and context.  It is relevant whether it has been given to medical practitioners for comment and, of course, the plaintiff’s evidence of it is relevant.

46The video surveillance in isolation is innocuous.  It demonstrated the plaintiff driving a red Land Rover, seemingly for ordinary daily activity such as shopping and purchasing fuel.  He was seen to move in the video without any apparent physical restriction.  In the context of the described physical restrictions in his affidavits, the video surveillance might have been quite unhelpful had he pursued a claim for a physical injury, but perhaps not so much for a claim based on psychiatric injury.  Regardless, it does cast doubt on some of the plaintiff’s evidence as to his restrictions, which of course feeds into the defendant’s primary contention about the reliability of the plaintiff’s evidence.

47In that regard, when the plaintiff was cross-examined about what was seen on the video surveillance, some of his evidence was hard to make sense of.

48Regarding the Land Rover vehicle that he was seen to drive, he said that as soon as he had moved to the farm, they had offered it to him and he said that he had been told if it helped him, then he could use it.[35]  He said he did not drive it every day, only if he needed it, if he had a job, or work, or doctor.  He was asked whether he paid for the petrol and said he did but qualified that by saying once or twice he took them, which I take to be a reference to the Chinese family, to the airport and they pay.[36]

[35]T 29, L 10.

[36]T 29, L 25‑28.

49The plaintiff then described the owners of the farm.  He said there were two ladies who owned the farm, which I understand to be the “Chinese family”.  The video depicted the plaintiff driving with a woman in the front passenger seat who appeared to be of Chinese ethnicity.  He was asked whether she was one of the owners of the farm and he said “no, this is the friend lady”.  He said that she “was treating my back.  In the morning she give me back treatment, she’s apparent good for massage of Chinese.  Some treatments for back”.[37]

[37]T 30, L 6‑8.

50The plaintiff was then asked why he was driving around this woman who gives him back treatment.  He said because she was supposed to come more to the farm and “these people move out of the farm, she’s supposed to come and stay there to help me … because they know I’m not fully capable of making (indistinct) and stuff”.

51He was then cross-examined about whether or not the people who owned the farm had moved out.  He said they had gone to China.  It was put to him that he had been left in charge of the property, but he said they left her in charge, which I take to be a reference to the woman seen in the video.  The plaintiff described that sometimes he cannot be at the farm because he has got responsibilities to come and see the doctor or if he had work sometimes, and in that scenario, she was happy to stay there.

52The plaintiff then explained that the woman seen in the video only visits once or twice a week to check things out on the farm.  He said that he was most of the time at the farm, like four, five days a week.[38]

[38]T 31, L 8.

53The plaintiff was asked again whether he looked after the farm and he said “not a hundred per cent … like 39 [per cent]”.[39]

[39]T 31, L 11-12.

54The plaintiff then explained that in addition to the Land Rover, there was now a better car at the farm for him to use, which was some sort of Hyundai and was more comfortable for his back and for his driving.[40]  He then said there were also unregistered cars on the farm, including a van he had purchased for himself, but it was not comfortable and the vibration aggravated his neck and made him tire quickly.[41]

[40]T 32, L 14‑16.

[41]T 32, L 23‑27.

55The plaintiff was then asked why he was seen on the film driving to 300 Malvern Road, Prahran, and he said. “probably to see some specialist”.  He was then asked about driving to 30 Wentworth Drive in Taylors Lakes and he said that was a place with some other friends “from this Chinese people”, who were also a Chinese family.[42]  He said he goes there sometimes if he is stuck in Melbourne and they offer him shelter.

[42]T 33, L 9‑13.

56The plaintiff then described the woman seen on the video surveillance by the name of “Lilly”.  He said he knew her through another friend.  She was supposed to move to the farm to look after it.  He said she had a house in South Melton.  He explained that on the day shown in the video surveillance, Lilly needed a lift up to the farm.  He said he may have slept over the night before in Melton and, in the morning, took her from Melton to the farm.[43]

[43]T 35, L 1‑8.

57In the context of what was an odd or difficult arrangement to follow, the plaintiff was then asked whether he had a relationship with Lilly, which he denied.[44]

[44]T 35, L 13.

58Regarding what he did on the farm, he said he had looked after things that are safe, and fed the dogs.  He said he had tried to do some farming, but it did not work for him, and Lilly and another lady do the farming.  He described them as the farming ladies who looked after the vegies.[45]  He explained that he had tried to use some of the machinery on the farm without any success.

[45]T 35, L 31.

59The cross-examination then moved from the farm back to the question of treatment.  The plaintiff said he had never refused treatment, but no one had ever insisted that he have it.[46]

[46]T 37, L 9‑11.

60Regarding medication, he said he was not taking any medication at the moment.  He then qualified that to say prescription medication.

61Returning to his work history, he said he stopped the job at the bakery because he was struggling to focus and making errors.[47]  He described how he managed to hit a pole with the back of the truck.

[47]T 38, L 19-21.

62The plaintiff said he still drove one and a half hours maximum per day, once or twice a week, just for basic needs.  He said he struggled, mostly because of his neck and dizziness.[48]

[48]T 39, L 10-14.

63Returning to the farm, he was cross-examined about how much time he spent there.  He accepted that he could stay at the farm seven days a week and said sometimes he stayed there for three or four weeks.  In that context, he had somewhere to stay, although he did not stay in the house on the farm, he stayed in a caravan.[49]

[49]T 40, L 8‑14.

64The plaintiff then described how Lilly usually gets a bus to the farm with the other lady who does the veggies.  They usually go Thursday and stay for a day or two.  However, the plaintiff later qualified that evidence to say mostly they come Wednesday and go Thursday night on average.[50]

[50]T 43, L 14‑20.

65The plaintiff was asked about travelling overseas during 2015, when he went to Serbia, and again in 2016.  He described the trip through Europe to visit friends and relatives.[51]

[51]T 44.

66Then in re-examination, he was asked about Lilly offering him something as shown on the film.  He said he could not remember that, but that he was in pain and struggling “and she distracting me”.[52]

[52]T 46, L 13-14.

Summary of the plaintiff’s oral evidence

67Much of the plaintiff’s oral evidence was unusual, to say the least.  But a few things arise out of it.

68First, the plaintiff is not homeless.  He has accommodation, even if it is a caravan, on the farm at Millgrove as often as he likes. 

69Second, he also has the regular use of a vehicle and can come and go from the farm as he pleases, and when necessary, travels perhaps to Lilly’s house or the other family’s house in Taylors Lakes if he needs to stay somewhere on that side of metropolitan Melbourne. 

70Third, on the farm, he does some odd jobs, perhaps not at a level where he could be described as a farm caretaker. 

71Fourth, he has some sort of a relationship, or friendship with the woman named Lilly, the precise nature of which is unclear.  But, I do not accept she is simply a lady who comes to the farm and picks vegetables and might occasionally require a lift with him to go somewhere, in keeping with his evidence that she provides him with back massages.  While there was no overt display of affection on the video surveillance, there is at least a hint of some sort of ongoing relationship or friendship between them.

72There was no suggestion during the plaintiff’s evidence that he could not understand the questions asked of him.  At no stage did he appear confused, even if some of his evidence was confusing to the listener.  It is also clear he can drive a car and attend to ordinary daily activity.  That is highlighted by the fact that he was driving “Lilly” because she required assistance and not the other way around.

73There is a sense in the evidence that the plaintiff is, without wishing to be unkind, a slightly unusual individual, perhaps someone with very fixated views of the world, regardless of the accident.  As his senior counsel conceded, he might be a complicated individual, who preferred his own company, consistent with his background and the fact that he is now living on a small farm on the outskirts of Melbourne where he essentially can do his own thing.

74Next, it is very hard to understand the arrangement on the farm or of his involvement with several “Chinese families”.  It is hard to know exactly what Lilly’s connection is with those families and whether any relationship with her is influential on his ability to stay on the farm.  It is relevant that there is no evidence from “Lilly”, or his other friends, to help explain those relationships and what goes on at the farm.

75I shall turn to consider the balance of evidence before considering further the impact of the plaintiff’s oral evidence and the video surveillance.

Megan Blair

76Megan Blair is the ex-partner of the plaintiff.  He tendered affidavits from her, sworn 20 December 2019[53] and 5 January 2024.[54]

[53]PCB 28

[54]PCB 31

77In her first affidavit, Ms Blair described how she had met the plaintiff about nineteen years ago and they had four children together from an “on again, off again” relationship.  She said that since the accident the plaintiff had been largely “off”.

78She described the plaintiff as one of the strongest people she had ever met, both mentally and physically before the accident.  She said that after the accident, that changed dramatically.  She said he suffered from very bad neck and back pain that limits his activities and made him agitated and stressed, and very difficult to deal with.[55]  Ms Blair then gave evidence of the plaintiff’s work at Spotless, his physical restrictions after the accident and also that the plaintiff had begun to struggle psychologically.  Regarding the work at Spotless, she said that from what he had told her, it sounded like he was becoming very paranoid about his co-workers.

[55]PCB 28

79Ms Blair then described how she could not see the plaintiff working now.  She described the impact his injuries had on the relationship with their children.  She said the physical injuries physically impacted his mood. 

80Then, in her second affidavit, she provided more detail about how they had met.  She said they both had a love of nature and a somewhat alternative lifestyle before the accident.  She said the plaintiff had continued to attend for important occasions, such as children’s birthdays or Christmas.  She said he was not the same person as before and that he was paranoid.  She said that since the accident the plaintiff’s physical and psychological condition had deteriorated, he was not paranoid before the accident and that his mood swings, anger and at times aggression/frustration are far more extreme than they ever were.[56]

[56]PCB 33.

81Ms Blair’s evidence is supportive of the plaintiff.  But her evidence is limited in its usefulness for resolution of the issues in this proceeding because she does not appear to know much about the plaintiff’s current life on the farm, or his friendships with the “Chinese family”.

Plaintiff’s medical evidence

Ms Daliborka Lazarevic

82Ms Lazarevic is the plaintiff’s treating psychologist.  She has provided five reports regarding the plaintiff, commencing with a report dated 10 April 2015[57] and concluding with a report dated 5 January 2024.[58]

[57]PCB 85.

[58]PCB 107.

83In the first report, Ms Lazarevic described the referral to her from Dr Pavlidis and the commencing of psychotherapy from 2 October 2014.  At that time, the plaintiff had completed seven sessions.  At that time, she recommended multidisciplinary treatment.  She described her diagnostic impressions as the plaintiff suffering from an adjustment disorder with mixed anxiety and depressed mood, which had developed secondary to the initial and ongoing consequences of the accident.[59]

[59]PCB 87.

84Next, in a report dated 2 November 2017,[60] Ms Lazarevic noted the plaintiff had then completed thirty-one consultations.  She repeated much of the earlier history and updated treatment and diagnostic impressions.  She said at that time that it had become evident that the plaintiff had expressed thought content, including themes of paranoid ideation with persecutory themes marked by general suspicious beliefs, as well as more specific convictions that he was being treated unfairly by some of his treating health professionals and the ongoing process involving the Transport Accident Commission.  She said his symptoms had deteriorated by that stage to satisfy the diagnostic classification of a delusional disorder persecutory type continuous with poor insight.[61]

[60]PCB 91.

[61]PCB 94.

85Then, in a report dated 24 May 2019, she noted the plaintiff had then completed forty-eight sessions.  She said he continued to be assessed as suffering a delusional disorder of severe intensity with very poor insight.  She noted the plaintiff had been reluctant to engage with a psychiatrist and repeated efforts to get him to a psychiatrist had proved futile to date.[62]

[62]DCB 98.

86Then, in a report dated 21 April 2023,[63] she repeated much of the early history and her ongoing treatment.  She said he continued to be diagnosed with a delusional disorder persecutory type continuous with poor insight.[64]  By that stage, he had completed sixty psychological consultations.  She said that his emotional struggles appeared to have been precipitated by adjustment-related difficulties associated with his involvement in the accident and multifaceted physiological and emotional struggles that had ensured over time.  She said the onset of psychological symptomatology appeared to have occurred within the context of adjustment-related struggles and associated circumstances.[65]

[63]PCB 100.

[64]PCB 103.

[65]PCB 105.

87Regarding work capacity, Ms Lazarevic then said the plaintiff continued to have no current work capacity and that any attempt to return to work would likely prove futile because the nature of his psychological condition would preclude all meaningful productivity contribution.[66]

[66]PCB 105.

88Then, in a report dated 5 January 2024, with the benefit of a total of sixty-seven consultations, she expressed her most recent opinion regarding the plaintiff.[67]  Once again, that repeated much of her earlier opinions.  She repeated her diagnosis of a delusional disorder persecutory type continuous with poor insight.[68]

[67]PCB 107.

[68]PCB 110.

89In a section of her report headed “Conclusion and Prognosis” she described progressive overall decline across numerous health and life domains, including the plaintiff’s physical appearance, psychological state, general and occupational functioning, financial and social welfare and overall quality of life.

90In respect of the plaintiff’s personal and premorbid history, Ms Lazarevic said there continued to be no further medical or self-reported information to warrant an updated conclusion in relation to that.  Accordingly, she confirmed her previous opinion that the psychological difficulties appear to have started following involvement in the accident.

91Pausing, it may be chronologically accurate to say that the plaintiff’s psychological difficulties started after the accident, but that is not the same as saying they were caused by the accident, although that could be concluded as what she was attempting to convey.

92Ms Lazarevic then described the ongoing cognitive behavioural therapy and acceptance commitment therapy.  She said the goals remained aimed at improving the plaintiff’s subjective experience, improving his coping mechanisms, improving delusional beliefs and the like.

93Ms Lazarevic then said the plaintiff had had intermittent attempted participation in employment.  She said the long-term prognosis was poor and he was unlikely to ever achieve a meaningful recovery.  She noted the continuing efforts to refer the plaintiff to a psychiatrist and for the use of psychotropic medication remained futile within the context of a strong and enduring reluctance towards that mode of treatment, very common among individuals suffering from his spectrum of psychological disorders.[69]

[69]PCB 113.

94At first blush, Ms Lazarevic’s reports appear comprehensive.  But, on closer inspection, that is not the case.  She provided broad evidence of her treatment and interactions with the plaintiff, but not much directed towards any specific consultation or ongoing history obtained by her as to the plaintiff’s current involvement on the farm with the Chinese family and the like.  Indeed, based on her reports, it is unclear if she is even aware of the plaintiff’s current living arrangements, which in her most recent report she described as “unstable”.

95The broad nature of Ms Lazarevic’s reports and the lack of any useful history about the plaintiff’s current living arrangements and friendships in her reports, together with the lack of a clear path of reasoning to link the delusional disorder to the accident means that there is a limitation to the usefulness of her opinions.  They are supportive of the plaintiff having a psychiatric condition, but do not provide much useful evidence to link his current condition to the accident, or to objectively assess the impairment consequences caused by the accident.

Dr Nathan Serry

96Dr Serry is a consultant psychiatrist to whom the plaintiff was referred for medico-legal assessment at the request of his solicitors.  Dr Serry has provided eight reports regarding the plaintiff.  The first of Dr Serry’s reports is dated 9 September 2014.[70]  His most recent report is dated 29 January 2024.[71]

[70]PCB 120.

[71]PCB 206.

97In his first report, Dr Serry obtained a history of the accident, the plaintiff’s medical and psychiatric history.  About that, Dr Serry said it was difficult to be clear about the nature of any pre-existing symptoms.  He noted the plaintiff had a ten-year gambling habit, which at times had been out of control and for which he did have some phone counselling.[72] 

[72]PCB 123.

98Dr Serry also obtained a history, conducted a mental state examination and reviewed the medical reports and records that were then available.  Having done so, Dr Serry said:

“It is very difficult to be clear about any pre-existing psychiatric illness although I suspect that there was at the very least an element of premorbid vulnerability.

Determining the nature of the psychiatric illness arising from the subject accident is particularly complicated given the nature of [the plaintiff’s] presentation. He has a mixture of features of anxiety, depression, traumatisation and what appear to be subtle psychotic symptoms. Further still, there is an intense somatic focus to his presentation.

The most appropriate diagnostic consideration at this time would be that of a mood disorder not otherwise specified with psychotic features and with significant features of traumatisation consistent with a PTSD.

Further still, [the plaintiff] appears to have developed a somatic symptom disorder with predominant pain, persistent and of at least moderate severity.”[73]

[73]PCB 126.

99Dr Serry then said that the plaintiff’s condition was not stable, his prognosis guarded and that it was a matter of considerable importance and urgency that the plaintiff be referred to a treating psychiatrist.[74]

[74]PCB 127.

100Dr Serry then re-examined the plaintiff and provided a report dated 25 June 2015.[75]  In that report, he obtained an up-to-date medical history, including that the plaintiff had remained very much physically symptomatic.  He noted the plaintiff was then attending a psychologist and had been treated with Cymbalta.  Having conducted an up-to-date mental state examination and reviewed relevant material, Dr Serry repeated his view that it was difficult to be clear about any pre-existing psychiatric illness, but that he felt there was at least an element of premorbid vulnerability, which he considered still to be the case.

[75]PCB 130.

101Dr Serry then said the psychiatric illness arising from the accident remained very much complicated.  He said there were a mixture of features of anxiety, depression, traumatisation with an intense somatic focus and further still some psychotic features.  He then said the most appropriate diagnosis would be a combination of psychotic disorder, PTSD and somatic symptom disorder.[76]  He repeated his opinion regarding prognosis and the need for treatment. 

[76]PCB 137

102In a further report dated 23 August 2018,[77] prepared after a further assessment with the plaintiff, which followed a similar form to his earlier reports, Dr Serry said as follows:

“[The plaintiff] is a 48-year-old originally Bosnian Serb male who was involved in a significant motor vehicle accident which occurred some five years ago.

[The plaintiff] has struggled thereafter with a combination of both physical and psychiatric symptomatology. He has been stressed, anxious, distracted, depressed, frustrated and has in my opinion experienced ongoing psychotic features which I suspect exist on a background of a degree of premorbid vulnerability.

[The plaintiff] remains under the care of a psychologist and is on a low dose of the antidepressant Cymbalta but he does not appear to have had the intervention of a consultant psychiatrist, treatment which he clearly requires.

[The plaintiff’s] background reveals an apparently unremarkable early childhood, no acknowledged family history of mental health issues, what I suspect is a degree of premorbid vulnerability but no formally acknowledged past psychiatric history.

Complicating [the plaintiff’s] presentation is his exceedingly jaundiced view of the medical profession and his sense that he has been the victim of a coordinated pattern of mistreatment by various professionals.”[78]

[77]PCB 143

[78]PCB 150

103Dr Serry then repeated his opinions regarding the plaintiff’s prognosis.

104Next, Dr Serry provided a short report dated 30 August 2018, reproduced in full as follows:

“Further to my recent report dated 23 August 2018, in which I concluded that [the plaintiff] had a complex psychiatric presentation, perhaps most consistent with a combination of a psychotic disorder, not otherwise specified with prominent affective features, chronic PTSD and somatic symptom disorder with predominant pain, persistent and of at least moderate severity (potentially subsumed under the psychotic diagnosis), I would add that I am of the opinion that [the plaintiff], given the severity of his psychiatric condition, does not have a capacity to manage his legal and financial affairs or for that matter to understand complex legal advice regarding his claim against the TAC.”[79]

[79]PCB 155.

105Dr Serry next reported after he re-examined the plaintiff, in a report dated 15 February 2023.[80]  That report also followed a similar format to his earlier reports.  But regarding the then situation, Dr Serry obtained a history that the plaintiff had done some work loading trucks, which aggravated his back.  The plaintiff told Dr Serry that he basically remained homeless, but spent a few days each week on a farm, describing it as peaceful and quiet there.  He said that when he was at work he would stay with friends in Melbourne.  He described problems with mood, energy and concentration, and described to Dr Serry how he had difficulty with sleep.  He described being careful and watchful as a driver and that he did not like being a passenger.  He repeated to Dr Serry how he was concerned a device had been inserted into his ear when he last attended Dr Serry in 2018.  He avoided watching television or listening to the radio because of messages being directed towards him personally.  He described an unusual interaction where he felt like he had the dreams belonging to his cat.  He described difficulty in public situations.

[80]PCB 156.

106Dr Serry then summarised the situation and described the plaintiff as presenting with a chronic psychotic disorder and chronic PTSD.  Dr Serry then said that:

“I am of the opinion that the transport accident on 16 September 2013 is a cause of the [plaintiff’s] psychotic condition.”[81]

[81]PCB 165.

107Dr Serry repeated his opinion that the plaintiff should be under the care of a consultant psychiatrist and receiving appropriate psychotropic medication.[82]

[82]PCB 166.

108Dr Serry re-examined the plaintiff and provided a further comprehensive report, this time dated 5 January 2024.[83]  In that report, he reviewed the plaintiff’s affidavit material, various medical records and DVD surveillance.

[83]PCB 168.

109Dr Serry was asked whether the further material caused him to change his previous opinions and conclusions.  He said that, having reviewed that material, it did not cause him to alter his previously-reached conclusions.[84]

[84]PCB 169.

110Dr Serry reported again on 15 January 2024, having been asked to again consider material, including the material from Ms Lazarevic, Ms Blair and a clinical medical file.  Having done so, he said it did not alter his previously-expressed opinions and conclusions.

111Dr Serry then re-examined the plaintiff and reported for a final time on 29 January 2024.  He obtained a history at that stage that the plaintiff was living alone on an isolated farm near Warburton and not working.  He obtained a history that the plaintiff unfortunately continued to struggle with pain symptoms, including pain in his neck and upper and lower back, which fluctuated in severity.  He described fluctuating muscle weakness and tiredness and no improvement for the distressing noise in his right ear. 

112Regarding the farm, Dr Serry had a history that the plaintiff managed basic domestic requirements, cooked every couple of days and tried to eat in a healthy fashion.  He said that the plaintiff spent most of his time alone, tried to seek harmony and peace, and meditated regularly.  Dr Serry took a history that the plaintiff had an ongoing pattern of extreme sensitivity in terms of interactions with other people, and became overwhelmed, irritable and short-tempered. 

113Relevantly, Dr Serry, in summary, said the plaintiff’s presentation was complicated by a jaundiced view of the medical profession.  He said the plaintiff continued to present with a chronic psychotic disorder, not otherwise specified, but with prominent affective features, and, further still, with features of a chronic PTSD.  He repeated his earlier opinion that the plaintiff did not have the capacity to understand legal advice, provide instructions and provide evidence in court.  He expressed the opinion that a litigation guardian was entirely appropriate and required.[85]

[85]PCB 212.

114That is a lengthy summary of the opinions from Dr Serry, in part, because Dr Serry has had a lengthy involvement with the plaintiff, now spanning nearly ten years.  Across his reports, Dr Serry’s opinion shifted to one that is predominantly, or even dominated by, a diagnosis of the plaintiff being psychotic.

115Whether or not that psychotic condition is related to the accident is a little hard to unpick from Dr Serry’s reports, in part because, in his recent reports, he has not been asked to do that.  The highest that Dr Serry comes to answering that question is in his report of 15 February 2023, where he described the transport accident “as a cause of the [plaintiff’s] psychotic condition”.[86]

[86]PCB 165.

116Next, I consider that Dr Serry has a basic understanding of the plaintiff’s pre-and post-accident history, including attempts to return to work and of living on the farm.  But Dr Serry does not appear to have the full picture of the plaintiff’s current life on the farm or moving between the “Chinese families”, despite having the video surveillance in which the plaintiff is driving around with Lilly in the front of the red Land Rover.

117Of course, it is the plaintiff who bears the overall onus of proof.  True it is that Dr Serry said the video surveillance did not cause him to alter his previously expressed opinions, but equally, in my view, the video surveillance casts doubt on the plaintiff’s widespread claim of physical restrictions.  Further, the cross-examination proved that the plaintiff is not homeless, and that he is living on a farm in which he has regular contact with the owners of that farm, or of friends of his connected to those owners.  It is not quite the isolated lifestyle of a loner, preferring to spend his days meditating, as appears to have been conveyed to Dr Serry.

118Some of the bizarre symptoms described to Dr Serry, such as the concern about a device being planted in his ear, would appear to fit with the psychotic diagnosis.  It was not suggested to the plaintiff during cross-examination that he was feigning such psychotic symptoms.  As such, with the benefit of many examinations of the plaintiff, there is force in Dr Serry’s opinion that the plaintiff has a psychotic condition.

119But there is no clear path of reasoning in Dr Serry’s reports to explain how the accident has contributed to the diagnosed psychosis, keeping in mind that Dr Serry said that the accident was a cause of that condition.  He does not explain what symptoms are causally related to the accident, or what contribution the accident now makes to the plaintiff’s psychiatric condition.

Dr Christos Pavlidis

120Dr Pavlidis is the plaintiff’s treating general practitioner and provided a report dated 22 January 2024.[87]  It is a comprehensive report setting out the plaintiff’s first consultation with him on 16 July 2014 through until what appears to have been the last review on 29 March 2023, when the plaintiff reported ongoing pains in the neck, right shoulder, mid-thoracic spine and lower back, which had prevented him from working.[88]  Dr Pavlidis said that the transport accident was likely to be the cause of those conditions.  He said, regarding the extent of the plaintiff’s symptoms, he would be unfit for suitable employment. 

[87]PCB 201.

[88]PCB 203.

121Dr Pavlidis noted that he had previously referred the plaintiff to see a physiotherapist and a psychologist.  He said that he did not think any further investigations or specialist referrals were required.  He described the plaintiff’s symptoms as stable.  He described the prognosis as poor. 

122It is clear from Dr Pavlidis’ report that he has mostly focused on the plaintiff’s claimed physical symptoms, although in his report, he did say that:

“… mood disturbance, such as feeling depressed associated with a loss of appetite and poor sleep could also be attributed to the accident and the pains that resulted from the accident.”[89]

[89]PCB 203.

123He also said that the plaintiff would require psychological support to assist him to deal with his psychological symptoms.[90] 

[90]PCB 204.

124What is clear is that Dr Pavlidis considers the plaintiff’s physical complaints to be the major cause of impairment consequences and he does not diagnose the plaintiff as having a psychosis.  It is perhaps not surprising then that he also provided no useful evidence of any psychotic symptoms that have been caused or contributed to by the accident.

Defendant’s medical evidence

Dr Andrew Firestone

125Dr Firestone is a consultant psychiatrist who examined the plaintiff at the request of the defendant and provided a report dated 9 November 2019.[91]

[91]DCB 17.

126Regarding the plaintiff’s social circumstances, Dr Firestone recorded an extreme history that the plaintiff was living mostly in his Nissan Maxima sedan, utilised mobile washroom facilities for homeless people in the city, obtained fresh garments free of charge from op shops and discarded his old clothes, rather than washing them.  Dr Firestone took a history that the plaintiff was renting a farm in Heathcote and had lived there for two years before the accident, mostly alone, although, for a time, with his ex-partner and children. 

127Dr Firestone then took a history of the accident, the plaintiff’s medical treatment and ongoing symptoms.

128Next, regarding the relationship with Ms Blair, Dr Firestone took the following history:

“He said his relationship with Meagan was unsuccessful due to her depression and sensitivity and they separated. He said Meagan is a country Australian and he finds her strange, as she finds him strange... She brought the children to live with him while he was farming on a rented 47 acres in Heathcote for two years (at the time of the accident) - but it did not work. Nor was the farm sufficiently remunerative, and on 1 April 2013 he commenced its disposal, meanwhile commuting to stay with friends in Kensington - where he worked full-time as a motor mechanic for the Spotless Company.

He said he has four children aged 9 to 16 in Geelong with their mother Meagan, who is 50.

He said he also has a son aged 19 from another partner, but has no contact.

He said he has a son, aged four, who now lives in China with his mother, who was here as a student and backpacker.”[92]

[92]DCB 20.

129Pausing again, the evidence to Dr Firestone of the plaintiff fathering a child to a Chinese student and backpacker was not specifically addressed in the plaintiff’s affidavits or explored in cross-examination.  Ms Blair made no mention of that child.

130In fact, the number of children is something of an enigma.  Dr Firestone recorded that the plaintiff had six children from three different relationships.  Dr Serry seems to have been told about five children.  In his first affidavit, the plaintiff said he had seven children, so I assume that is correct.  It probably means that Dr Firestone has accurately recorded the story about the relationship with the backpacker and further adds to the mystery of the plaintiff’s involvement with the Chinese community.

131In any event, Dr Firestone conducted a mental state examination and described the plaintiff’s ideas as eccentric.  He said he wondered about the truth of some of his statements, such as the plaintiff having won as much as $80,000 at the casino. He said he could not be sure about how much of his narration was real and how much was fantasy.  He said he thought the plaintiff’s grip on reality was loose.[93]

[93]DCB 22.

132Dr Firestone noted that the plaintiff had no Medicare card, consistent with his paranoid distrust of “the system”.  He said he was concerned about the plaintiff’s mental state, that it should be fully investigated and that he had written to the treating general practitioner recommending referral to a psychiatric service for the homeless at the Alfred hospital. 

133Pausing here, in his report, Dr Pavlidis does not mention any such referral from Dr Firestone.

134Dr Firestone said he had a working diagnosis of schizotypal personality disorder or, in an older classification, schizophrenia.

135Dr Firestone said he did not obtain a history consistent with a post-traumatic stress disorder or a somatic symptom disorder.  He noted that the psychologist’s report was consistent with the second diagnosis and therefore he intended to apply that to the impairment assessment which he had been requested to undertake. 

136Accordingly, for the purpose of the impairment assessment, Dr Firestone diagnosed a somatic symptom disorder with predominant pain as resulting from the effects of the accident.  However, he also described a schizotypal personality disorder and gambling disorder not related to the accident.  Dr Firestone recommended prescription of a drug with antidepressant, as well as antipsychotic, properties.  He said the plaintiff’s increasingly marginal living circumstances were relevant and the plaintiff had a paranoid outlook, and that also exacerbated his living situation.  He said the accident was not merely an incident in the course of that deterioration, but it appeared to have precipitated a more severe decline.[94]

[94]DCB 25.

137The opinion from Dr Firestone appears to be based on a reasonably accurate pre- and post-accident history and on a consideration of such medical evidence as was available at that time.  As such, it is a balanced and compelling opinion.  It is unfortunate that Dr Firestone’s opinion is confined to a report that is now out of date, although balanced against that, it could be said that there is no compelling evidence since he saw the plaintiff that would render his opinions obsolete.

138In other words, the plaintiff has continued to maintain a somewhat unusual lifestyle and continues with somewhat unusual relationships.  He continues to have a mistrust for the medical profession and, apart from the treating psychologist, has not really had much by way of treatment.  He has continued to refuse the recommendation of a referral to a psychiatrist and the use of appropriate medication.

139Therefore, despite the limitation of a report that is out of date, I consider there is relevant and compelling evidence in the report from Dr Firestone.

Associate Professor George Mendelson

140The final medical opinion is that from Associate Professor Mendelson, dated 27 April 2023.[95]

[95]DCB 57.

141Like the other psychiatrists, Dr Mendelson took a history from the plaintiff, conducted a mental state examination, reviewed relevant material and then expressed opinions.  Associate Professor Mendelson had available some of the reports from Ms Lazarevic, being her reports of 20 March 2015, 10 April 2015, and, as Associate Professor Mendelson said, the most recent report he received, 24 May 2019. 

142Having considered the material in the context of the history obtained by him, Associate Professor Mendelson said that, in the aftermath of the accident, the plaintiff was likely to have experienced manifestations of anxiousness.  He went on to say that, in his opinion, such emotional symptoms would have resolved within a short period of time.  Unless there was objective evidence of ongoing symptoms due to physical injuries, then it was his opinion that there is no ongoing stressor from the accident that could be perpetuating any current emotional symptoms.  He said that, at his examination on 19 April 2023, the plaintiff did not present as depressed and that there was no indication of clinically significant anxiety.

143Regarding Ms Lazarevic’s opinion in May 2019 that the plaintiff had a delusional disorder, Associate Professor Mendelson said he would have expected that, if the plaintiff had a psychotic disorder, then neither the psychologist nor the treating general practitioner would have referred him to a psychiatrist and there would have been treatment with antipsychotic medication.  Regardless, he said there was no evidence of psychosis when he examined the plaintiff.  He said it could be that he had formed the view that he had been treated unfairly, but “such perceived injustice” was not uncommon among litigants. 

144In short, Associate Professor Mendelson said in his opinion that the plaintiff did not present as having a diagnosable mental illness.  He said the plaintiff had the capacity to perform his previous work and was not precluded from suitable work.  He said there was no indication for ongoing treatment.[96]

[96]DCB 72-73.

Limitations in the opinions of some medico-legal examiners

145The plaintiff tendered the Letter of Instruction to Associate Professor Mendelson as evidence of the documents, or perhaps better expressed as the lack of documents, provided to him. 

146The letter from Hall & Wilcox dated 23 January 2023 referred to claim forms, radiology, reports from various health practitioners and some of the reports from Ms Lazarevic as discussed.  What is clear is that most of the material given to Associate Professor Mendelson was considerably out of date.  The most up-to-date material provided to him was the opinion from Ms Lazarevic dated 24 May 2019.  He obviously did not have all of the available opinions from Ms Lazarevic and, perhaps more importantly, he did not have the psychiatric opinions from Dr Serry and Dr Firestone. 

147I accept the submission of the plaintiff that there is some limitation in the weight to attach to the opinion of Associate Professor Mendelson, because he did not have all of the evidence available at the date of the referral to him.  He certainly did not have the benefit of the documents that were provided to Dr Serry, or Dr Serry’s opinions themselves.

148It could be said that an independent expert witness should not necessarily be provided with contrary medical opinions to avoid the witness becoming partisan.  But in a dispute such as the present proceeding, where there is a hotly-contested issue as to whether the plaintiff does, or does not, have a psychotic condition related to the accident, and in light of the extreme difference of opinion between Associate Professor Mendelson and Dr Serry, I consider it would have been useful if he had least had available Dr Serry’s opinions when he saw the plaintiff, even if not asked specifically to critique them.

149But these comments are not all one way.  On the same topic, Dr Serry was never provided with Associate Professor Mendelson’s report.  Further, in each of his reports, Dr Serry helpfully sets out the documentation then available to him and it also appears that he was never provided with Dr Firestone’s opinion.

150Therefore, there are some limitations and reservations regarding the opinion from Associate Professor Mendelson, but, perhaps not quite to the same extent, the same comment can be made about Dr Serry.  It is a pity that neither of those doctors had available the balanced and thorough opinion from Dr Firestone.

A cause is not enough

151Section 93(2) of the Act prescribes the circumstances in which a person who is injured as a result of a transport accident may recover damages, including the “serious injury” requirement.

152To determine if the injury is as a result of a transport accident, it is sufficient that the accident is a cause of the condition or injury claimed to be “serious”.[97]

[97]        Taylor v Transport Accident Commission [2022] VSCA 269 [43].

153But the fact that an injury is as a result of an accident, while enough to establish ‘causation’ at a threshold level, does not establish that the injury is “serious”.  It is still incumbent on the plaintiff to establish the extent of injury and claimed impairment consequences for the purpose of proving a “serious injury”.

154As already mentioned, Dr Serry opined that the accident was a cause of the plaintiff’s psychotic condition.  As such, his opinion supports the plaintiff for the threshold causation issue.  In other words, Dr Serry’s opinion supports a conclusion that the plaintiff’s psychotic condition results from the accident.  But self-evidently, Dr Serry did not opine that the transport accident was the sole cause of the psychotic condition.  In fact, he did not say how or how much of a cause it was to the psychotic condition.  Dr Serry was not asked to expand or explain what he meant by “a cause”.  He was not asked what contribution it made to the overall claimed psychiatric impairment.

155As was explained by the Court of Appeal in Rowe v Transport Accident Commission[98] (“Rowe”), it is not enough for the plaintiff to establish that the accident was a cause of his current total psychiatric condition. 

[98][2017] VSCA 377.

156Section 93 of the Act requires the Court to identify the injury that occurred as a result of the accident and to then determine whether that injury is serious as defined. As was said in Rowe, that is not to say, however, that earlier or later traumas are not relevant.  An exacerbation of an earlier injury may be “serious”, just as conditions or symptoms that arise later in time may be relevant if they arise from the accident. 

157But, as is made clear in Rowe, it is impermissible to ask whether, but for the accident, the plaintiff would have gone on to develop his present psychiatric condition.

158In other words, what Rowe makes clear is that it is the plaintiff who has the onus to not only establish the psychiatric injury said to have been caused by the accident, but also the extent of that injury, impairment, and impairment consequences relevant to it.

159The plaintiff in this proceeding is inviting the Court to conclude that as there is no evidence that the plaintiff was psychotic before the accident, and where Dr Serry says the accident was a cause of his psychotic condition, then the Court should accept that his current impairment at a level such that he lacks legal capacity, means that he has discharged the evidentiary onus he bears to establish a “serious injury”.  I disagree with that analysis of the evidence.  While the plaintiff may have an accident-related psychosis, there is simply no reliable evidence to determine the impairment that has been caused by the accident, as opposed to impairments caused by the unrelated aspect of his condition.

Analysis

160This is a complicated case, with a complicated history before and after the accident, for a complicated individual.

161As just discussed, the plaintiff bears the onus to establish a psychiatric injury related to the accident and the impairment consequences from it.

162First, the plaintiff’s evidence is hard to follow and unreliable.  The video cast doubt on his complaint of widespread physical pain, or physical restrictions.  It also shed light on his unusual living arrangements.  That evidence is relevant for a consideration of claimed psychiatric impairments.

163Second, it is hard to grasp how the plaintiff lived his life before the accident, or how he has lived it since the accident.  This is highlighted by the discussion about his past relationships and how many children he has.

164Third, his evidence about his current living arrangements and his relationships with people connected to the farm was very hard to understand. 

165What became clear was that he has a long-standing relationship both with the farm and the people connected with it, contrary to his story of homelessness or living by himself.  He has a wide circle of friends and an ability to come and go between various friends and locations as needed, for work, or for other daily activity.

166Fourth, the evidence tends to the conclusion that the plaintiff has had paranoid tendencies well before the accident, with sufficient mistrust of “the system” to essentially live off the grid, as evidenced by his refusal to obtain a Medicare card.  He has drifted in and out of paid employment, and in and out of personal relationships.

167Fifth, against that backdrop, I accept that the accident was a violent and frightening event and may have contributed to the development of a mood disorder, or some anxiety symptoms.

168Sixth, I prefer the opinions from practitioners such as Dr Firestone and Dr Serry, to conclude that the plaintiff now has a diagnosed psychosis.  I do not accept Associate Professor Mendelson’s opinion that there is no diagnosable psychiatric disorder.

169As conceded by the defendant, if the accident was the cause of the psychosis, then that would be a “severe” consequence and justify a conclusion of a “serious injury”.

170But the evidence is not that the plaintiff’s psychosis was caused, as in solely caused, by the accident. 

171Seventh, having considered all the evidence, I consider the opinion from Dr Firestone to be the most compelling one regarding the cause of the plaintiff’s psychosis, namely that it is unrelated to the accident.  That would necessarily mean that the plaintiff’s claim for serious injury fails, as it is the symptoms related to the psychosis that cause most, if not all, of the claimed psychiatric impairments.

172In other words, if I was to accept that there was an accident-related mood disorder that persisted, that of itself would not establish a “serious injury” as the claimed psychiatric impairments relied on by the plaintiff are ones that arise from his psychosis and not some other condition.

173Eighth, contrary to my conclusion about causation, if I was to accept Dr Serry’s opinion that the accident has been a cause of the plaintiff’s psychosis, that is not enough to conclude that there is an accident-related “serious injury”.  To do so would be impermissible in the way explained in Rowe as it would involve a conclusion that, but for the accident, the plaintiff would not have a psychotic condition.

174Therefore, where the plaintiff has the overall onus, at the highest, the evidence is that he has a psychosis that may have been contributed to by the accident.  But he has failed to produce reliable evidence of what, if any, impairment or additional impairment consequences have been caused by the accident-related psychiatric condition or injury.

175Finally, a conclusion that the plaintiff has a psychosis does not necessarily equate to “very considerable” consequences to him. 

176On one view, the plaintiff is still functioning at a reasonable level and in a similar way to how he was before the accident.  He continues to look after himself, to engage in odd jobs around the farm and to drift in and out of paid employment or occupy himself collecting scrap metal.  Apart from psychological treatment, he does not have psychiatric treatment or medication.  He can maintain friendships.  He is able to drive himself and others around as needed. 

Conclusion

177Overall, there is insufficient evidence to conclude that the plaintiff has a “very considerable” consequence, either from pain and suffering or pecuniary loss consequences, regardless of what, if any, contribution the accident has made to his psychosis.

178Therefore, for the reasons expressed, I am not satisfied that the plaintiff has suffered a “serious injury”.  The proceeding shall be dismissed. 

179I will invite the parties to provide a minute of the orders sought to give effect to these reasons.