Bilgin v Transport Accident Commission
[2017] VCC 144
•3 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00189
| MAHMUT GURBUZ BILGIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 January and 1 February 2017 | |
DATE OF JUDGMENT: | 3 March 2017 | |
CASE MAY BE CITED AS: | Bilgin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 144 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine – severe long-term mental or severe long-term behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barlow v Hollis [2000] VSCA 26; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Anor [2011] VSCA 249; Bezzina v Phi & Anor [2012] VSCA 161
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Hamilton | Nowicki Carbone |
| For the Defendant | Mr P D Elliott QC with Ms V Nadj | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 13 October 2011 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) and paragraph (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The loss of body function relied upon in this application is the spine.
5 The mental or behavioural disturbance or disorder relied upon is a persistent pain syndrome associated with psychological factors, with mild to moderate primary or direct post-traumatic stress and anxiety symptoms and traumatisation features.
6 The plaintiff seeks leave to issue proceedings at common law.
7 During the application, counsel for the plaintiff abandoned the plaintiff’s application under paragraph (a) of the definition of “serious injury”.[1] Accordingly, in my reasons, I shall only consider whether the plaintiff satisfies the definition of “serious injury” under paragraph (c) of the Act.
[1]Transcript (“T”) 141, Line (“L”) 18
8 The plaintiff relied upon three affidavits sworn by him on 13 February 2015, 10 January 2017 and 27 January 2017, and an affidavit sworn by a relative of the plaintiff, Dilek Karaday, on 10 January 2017. The affidavit of Ms Karaday deposes to the assistance she provides to the plaintiff in respect of his physical injuries and as to his English speaking skills.
9 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
10 The Court must not give leave unless it is satisfied that, on the balance of probabilities:
(a)the injury suffered by the plaintiff was as a result of the transport accident;
(b)the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
11 In determining the application, the Court must make the assessment of “serious injury” at the time the application is heard.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
12 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[3]
[3]Mobilio v Balliotis [1998] 3 VR 883 at 19 per Brooking JA
13 The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[5] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[6]
[4]Supra
[5](1995) 21 MVR 314
[6]Mobilio v Balliotis (ibid) at 846
14 Winneke P, in Mobilio,[7] agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[8]
[7](ibid) at 846
[8]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
15 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[9]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[9][1998] 1 VR 702, 703
16 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[10]
[10](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph [29]
17 The wrongdoer must take the victim as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[11] if there is a pre-existing condition an analysis has to be made to see whether the additional impairment resulting was ”serious”. In this case, the additional mental and behavioural disturbance of itself must be long term and severe, but also that the aggravation injury is the result of the relevant accident.[12]
[11][1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
[12]De Agostino v Leatch & Anor [2011] VSCA 249 at paragraph [60]. See also Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23]
18 Where the plaintiff has an injury with numerous consequences, he or she must establish at the time of applying for leave that the injury which has been caused by or is the result of the accident is a serious injury.
The issues
19 Counsel for the defendant informed the Court that the following issues arose:
· The plaintiff had a pre-existing psychiatric condition as a result of family breakdown and immigration issues for which he was receiving treatment prior to the transport accident;
· Any aggravation of that condition does not meet the test for a serious injury; and
· The plaintiff has downplayed the pre-existing history of his psychiatric condition to medical witnesses.
The Plaintiff’s background
20 The plaintiff is aged forty-five. The plaintiff was born in Turkey and completed his education at high school level. He worked in a number of jobs in restaurants and cafés in Turkey. When working at a hotel, the plaintiff met his ex-wife, Ms Figgin, whom he married in 2007. His ex-wife was Australian and of Turkish heritage. Both of them emigrated to Australia on 16 December 2008. The plaintiff entered Australia via a marriage visa.
21 In December 2008, the plaintiff obtained employment and worked for eight days as a plasterer. Between February and early March 2009, he worked as a waiter at the Turkish Cafe in Broadmeadows.[13] During this period, his evidence was that his ex-wife became unpredictable, yelling and threatening to send him back to Turkey. He said that he found himself in an undesirable environment where he was forced to plant and sell marijuana by his father-in-law and suffered threats and verbal and physical abuse from his wife. The plaintiff said he resisted, which caused him a great deal of distress.[14]
[13]Ms Atakan’s handwritten notes dated 29 July 2011
[14]T19
22 By March 2009, his ex-wife sought to end the relationship. The plaintiff said that he took some of his in-laws’ medication with alcohol to commit suicide.[15]
[15]T26
23 The plaintiff returned to Turkey for a short period in March 2009. He was told by his father-in-law that he would cancel the plaintiff’s visa so that he could not return to Australia.[16] The plaintiff said he found it hard to cope and again, attempted to commit suicide but was stopped by his former boss.[17]
[16]T26
[17]T27
24 The plaintiff returned to Australia in May 2009 and lived with his cousin. His ex-wife informed the Immigration Department of their separation. Ultimately, the plaintiff applied for permanent residency and was anxious and had low morale about the result.
25 In June 2011, the plaintiff consulted Dr Uluca, general practitioner, for depression and hypertension and he was assessed and referred for blood tests. Later, Dr Uluca prescribed the anti-depressant, Pristiq.
26 In early July 2011, a GP Mental Healthcare Plan was prepared for the purpose of a referral to a psychologist. Dr Uluca recorded that the plaintiff was subject to family violence by his ex-wife and her family and, as a result, developed depression, which resulted in a suicide attempt. Dr Uluca noted that the plaintiff was normal in his thinking, perception, cognition, memory, insight, orientation, affect, appetite, judgment, anxiety symptoms and speech. He was a little unkempt in behaviour and appearance, low in attention/concentration, mood was depressed and low in motivation and energy. Dr Uluca noted “suicidal ideation”.
27 By mid July 2011, the plaintiff reported to Dr Uluca his problems with the Immigration Department, that his depression had not improved and, as a result, the anti-depressant was increased.[18]
[18]Joint Court Book (“JCB”) 55F: Dr Uluca’s medical records
28 The plaintiff was referred by Dr Uluca to Ms Aliye Atakan, psychologist, in respect of the marriage breakdown. Her clinical records confirm the following:
· She saw the plaintiff on ten occasions between 21 July 2011 and 10 November 2011;
· Since September 2009, the plaintiff had resided in Australia on a temporary visa;
· In February 2011, the plaintiff reported receiving a letter from the Immigration Department stating that he had to make application for a visa, providing reasons for his separation from his ex-wife.
29 In February 2011, the plaintiff was in receipt of unemployment benefits. He was attempting to look for work but was unable to find employment because he did not have a permanent visa. Between February 2011 and August 2011, the plaintiff told the Court that he attended English classes five days a week from 9.00am to 2.30pm. [19] In cross-examination, the plaintiff said that he learned a little bit of English but not enough to explain himself.[20]
[19]Ms Atakan’s notes; the plaintiff told the Court that he commenced English classes in 2010 at T82
[20]T34
30 On 28 July 2011, Ms Atakan conducted a DASS, which was a self-reported inventory in which the plaintiff scored himself as “extremely severe” in depression and anxiety and “severe” in stress.[21]
[21]JCB 185
31 By August 2011, Ms Atakan diagnosed an Adjustment Disorder with Anxiety and Depression secondary to unknown immigration status. Her notes of 5 August 2011 record the plaintiff was very distressed, anxious about being deported and anxious about his ex-wife’s in laws harming/hurting him.
32 On 9 September 2011, Ms Atakan conducted a psychological feedback for a Mental Healthcare Plan. She reported that the plaintiff suffered symptoms of anxiety and depression in the context of a marital breakup and subsequent Australian residency uncertainty. She diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
33 On 23 September 2011, the plaintiff reported that MatchWorks was unable to find employment because of his poor English. Ms Atakan reported he felt in a bind and was very frustrated.
34 On 11 October 2011, the plaintiff claimed he felt less stressed than usual and that he had an appointment on 24 October 2011 with MatchWorks who was going to help him obtain work in a Turkish speaking workplace.
35 On 13 October 2011, the plaintiff was a front-seat passenger in Mr Oguz Han’s car when he was involved in a motor vehicle collision. He was taken by ambulance to Western Hospital Emergency Department in Footscray.[22]
[22]JCB 9
36 On 25 October 2011, Ms Atakan’s notes record that the plaintiff reported the transport accident to her.
37 On 10 November 2011, Ms Atakan conducted a further psychological mental healthcare plan with the same results as the assessment conducted on 9 September 2011. She reported that she did not believe further sessions in 2012 would significantly benefit the plaintiff because the sessions he had attended had made minimal impact on his thought patterns. Further, it was her opinion that the plaintiff was unable to abstract and generalise information presented to him. The plaintiff reported to Ms Atakan that he was more homebound as a result of the transport accident injuries.
38 In December 2011, Dr Uluca referred the plaintiff to Ms Kurtoglu, psychologist.
39 In a report dated 10 February 2012, Ms Kurtoglu diagnosed a Major Depressive Disorder, recurrent, severe without psychotic features and a Generalised Anxiety Disorder. She said the plaintiff had suffered from a Major Depression Disorder, and Anxiety. He developed the disorders as the result of his relationship breakdown, and emotional and verbal abuse from his estranged wife and family. She noted that he was always worried about his current situation, visa application and his future. It was her view that the plaintiff could not work due to his presenting symptoms. He required ongoing treatment.
40 In January 2012, Ms Kurtoglu recorded that whilst the plaintiff discussed his marriage and visa application issues, he “briefly” mentioned the transport accident he was involved in three months ago.[23] By March 2012, the plaintiff was discussing the transport accident with Ms Kurtoglu.
[23]J CB 41A: Ms Kurtoglu’s notes
41 The evidence is that, in April 2012, the plaintiff changed general practitioners and commenced seeing Dr Ansari, general practitioner, at St Albans in respect to the transport accident injuries as a result of his dissatisfaction with the treatment being provided by Dr Uluca.
42 In a report dated November 2012, Ms Kurtoglu reported that the plaintiff had received psychological treatment since 17 January 2012 on a regular basis to stabilise his depressive and anxious symptoms. He presented with depressive and anxious symptoms before the transport accident but had become more depressed and anxious since he had sustained the lower back injury as a result of the transport accident. She described his pre-accident state as “mildly” anxious. She said his anxious symptoms have been aggravated by the transport accident. Ms Kurtoglu reported that the plaintiff’s recent assessment indicated that his presenting symptoms had not stabilised, he had become very pessimistic about his future and she recommended that he receive ongoing psychological treatment. She diagnosed the plaintiff as having a Major Depressive Disorder, a General Anxiety Disorder including paranoid thoughts, mildly anxious before the transport accident and the anxiety symptoms had been aggravated by the transport accident due to his health issues and traumatic experiences.
43 The evidence is that the plaintiff was granted permanent residency in Australia in 2014.[24]
[24]JCB 13-15B
44 In a report of July 2014, Ms Kurtoglu said the plaintiff was suffering from Depression, Anxiety and chronic lower back pain as a result of the transport accident. It was her view that the plaintiff’s current symptoms were major barriers for him to seek employment or maintain any position. She said his symptoms will aggravate significantly if he is under constant stress and pressure. She anticipated that he be exempted from undertaking any voluntary or compulsory activity for four months and said he needed ongoing psychological treatment.
45 In her most recent report of December 2016, Ms Kurtoglu reported that the plaintiff presented with mild depressive mood prior to the transport accident. In respect to his Generalised Anxiety Disorder, she said the plaintiff presented with mild anxious symptoms which had been aggravated by the transport accident. She concluded that the plaintiff suffered a Major Depressive Disorder and Generalised Anxiety Disorder.
46 The plaintiff was treated by Dr Samir Ibrahim, psychiatrist, on four occasions in 2013. Dr Ibrahim said the plaintiff presented with a history of a transport accident and a clinical picture of Post-Traumatic Stress Disorder, and Depression. It was Dr Ibrahim’s view that the plaintiff’s ordeal with his ex-wife had impacted on his psychological wellbeing.
47 The plaintiff was referred to Dr Negibe Mankir, psychiatrist, in December 2014. In January 2017, Dr Mankir said the plaintiff currently presents with symptoms more in keeping with a Chronic Adjustment Disorder with Depressed Mood and Anxiety. Symptoms of this disorder relate to his reaction to the stressor of the transport accident in 2011 and include ongoing low mood, poor concentration, social withdrawal, anxiety and distress when exposed to reminders of the transport accident; poor sleep without hypnotic medication and worries about his physical health and future.
48 Dr Mankir said the prognosis was poor due to the chronicity of his condition, his socialisation, few transferrable skills to find alternate meaningful employment, language barrier and relatively impoverished social circumstances and ongoing pain and physical impairment. He said the plaintiff was incapacitated for his pre-injury employment from a psychiatric perspective. Dr Mankir was aware of the plaintiff’s previous treatment for depression prior to the transport accident. The plaintiff reported to him a degree of recovery prior to the transport accident.
Credit of the Plaintiff
49 The plaintiff gave his evidence through an interpreter. A number of the witnesses commented on his poor English and difficulty with communication.[25]
[25]Dr Ibrahim. Dr Uluca, who said he did not speak English at all. Dr Weissmann said he had limited English language skills and conversed virtually entirely through a professional interpreter.
50 In my view, the plaintiff answered questions put to him in a direct and frank manner. Generally, his answers were consistent with what he reported to medical witnesses.
51 Counsel for the defendant submitted that the plaintiff was not a man of credit and attacked him on the following grounds:
· that the plaintiff sought to downplay the pre-existing history of his psychiatric condition prior to the transport accident;
· he was a man willing to use his psychiatric condition to suit his own purposes, the first of which was to obtain a visa to remain in Australia and then subsequently, to pursue a claim against the defendant;[26]
[26]T117, L9-18
· he failed to disclose his overseas travel to Turkey in his first affidavit and only disclosed it because the defendant became aware;[27] and
· he managed to undertake travel to Turkey despite his injuries.[28]
[27]T79
[28]T87-88
52 As to the first issue, Dr Weissmann, psychiatrist, examined the plaintiff on three occasions and in his most recent examination, noted, in his report dated 9 October 2015:
“He told me that he ‘sometimes’ goes to the Turkish Association in Sunshine. He told me that he has coffee there and alternates between sitting and standing. I then asked him how often he goes to the Turkish Association and he told me four or five times per week, for three or four hours each time (this is not insignificant).”[29]
[29]JCB 117
53 Dr Weissman recorded asking the plaintiff how his current depression compared with his depression before the transport accident. The plaintiff responded:
“Before the accident, I just had one problem, my visa, and I knew that it was going to get sorted out, so [my pre-accident depression is] nowhere near where it is now. I was doing English classes and trying to improve my language and I can’t do that now.”[30]
[30]JCB 118
54 Dr Weissman asked the plaintiff about the problems with his ex-wife’s family prior to the transport accident. The plaintiff responded that:
“They left me alone since the divorce came through and then I got my visa.”[31]
[31]JCB 118
55 Dr Weissmann concluded that there was no doubt that, prior to the transport accident, the plaintiff had a pre-existing depressive syndrome that was quite severe, and a number of significant psychosocial stressors. It was Dr Weissman’s view that, during the interviews with him, it would be fair to say that the plaintiff tended to downplay and minimise those pre-existing factors.[32] Dr Weissman’s view was supported by Dr Brendan Hayman, psychiatrist, who examined the plaintiff at the request of the plaintiff’s solicitor in December 2016.[33] However, counsel for the plaintiff submitted that Dr Weissman did not have the benefit of Ms Atakan’s notes that the plaintiff was improving a few days before the transport accident, nor did he have Ms Kurtoglu’s notes, which gave context and explanation as to the focus of the first report.[34]
[32]JCB 124
[33]JCB 132 and 137
[34]T138
56 In his report dated 1 December 2016, Associate Professor Peter Doherty, psychiatrist, asked the plaintiff whether he had any named medical conditions unrelated to the transport accident at the time. He recorded that the plaintiff reported to him that he had no named medical conditions unrelated to the transport accident and that his medical health was perfect at that time.[35] Based on the medical evidence tendered, this was clearly not the case.
[35]JCB 177
57 As to the first issue, based on the report of Dr Weissman, Dr Hayman and Associate Professor Doherty, I accept that the plaintiff downplayed his pre-existing history prior to the transport accident.
58 As to the second issue, counsel for the defendant submitted that the plaintiff used his psychiatric condition to “suit his own purposes”; that is, to pursue a visa to reside in Australia and then use his symptoms to pursue a claim against the defendant.[36]
[36]T117
59 In cross-examination, the plaintiff’s evidence was that he saw a psychologist prior to the transport accident as the Immigration Department wanted a psychological report to support his application for residency in Australia. He agreed he was depressed. In cross-examination, the plaintiff said:
A:“When the doctor asked me why I wanted to see a psychologist, and I might have explained to the doctor about my condition, and he would refer me. But if the immigration didn’t request this certain report, I wouldn’t have gone to see a psychologist, because I didn’t have any condition like that.
Q:Are you telling us that you went to this psychologist and told the psychologist all about your problems, and that you wouldn’t have done that if it hadn't been for the Immigration Department?---
A:Like, I didn’t really need to go to the doctor to get any treatment. I didn’t have that need.
Q:So you went to the doctor and made your condition sound worse than it was, so that you would get a visa through the Immigration Department? Is that what you're telling us?---
A:No. Because the Immigration Department requested the psychological report, I went to the psychologist and explained to them what I’ve been through and what I was feeling, and then I asked the doctor to write me a report.
Q:And as far as you’re concerned, that would have been the end of it, if the car accident hadn’t happened, is that it?---
A:Until my visa application was finalised, it would have finished.
Q:So once you got your visa, everything would have been all right. You would have stopped going to the GP, stopped taking the anti-depressants, and stopped going to the psychologist, is that it?---
A:Until they requested that report, I didn’t need to go to the doctor. I was living through some sort of stress, but it wasn’t – the stress wasn’t enough for me to go and seek assistance from the doctor.”[37]
[37]T60, L19 – T61, L18
60 Subsequently, as to his claim against the defendant, counsel for the defendant asked:
Q: “You applied to the Migration Review Tribunal. Did you tell the tribunal about your problems?---
A: Yes. To do with what I went through with my – my family. With my separation. Plus the accident I had. Yes. I told them all of that.
Q: You emphasised the problem you had with your family though, didn’t you?---
A: I told them what I lived through – I told them what I lived through.
…
Q: After you got your visa from the tribunal, you were able to stay in Australia. Correct?---
A: Yes. True.
Q: You concentrated, then, on your TAC claim?
A: Yes.”[38]
[38]T36, L11-27
61 Counsel for the plaintiff submitted that the plaintiff did not focus entirely on migration and then the motor vehicle accident when it suited the plaintiff. Conversely, that the plaintiff made a host of complaints to his psychologist about the motor vehicle accident. Further, in the plaintiff’s TAC Claim Form, he fully disclosed that he had required prior treatment to the accident by a psychologist and that he had a pre-existing psychological condition.[39]
[39]JCB 217
62 I accept that the plaintiff disclosed in the TAC Claim Form the treatment he received from a psychologist prior to the transport accident.
63 As to the third issue, the plaintiff described travel to Turkey from July 2015 to September 2015 to visit an unwell uncle in his third affidavit sworn 27 January 2017.[40] The plaintiff did not disclose this in earlier affidavits. Counsel for the defendant asked the plaintiff, in cross-examination:
[40]JCB 15D
Q: “What I’m putting to you is that the only reason that you put it in now is that those documents were served on you, and you became aware that the defendant knew that you’d gone to Turkey in September?---
A: I just answered the question that was put to me at the time.
Q: You didn’t volunteer that you’d been off to Turkey for a few months?---
A: All my doctors were aware that I was going to Turkey, and that I had gone to Turkey. My solicitor also was aware of my ticket. I’d shown a copy of the ticket to the solicitor. I didn’t hide it from anybody.
Q: You can’t explain why it’s not in the earlier affidavit then?---
A: Maybe, at that stage, I hadn’t recalled it, or maybe that question wasn’t put to me at the time.”[41]
[41]T80, L24 – T80, L5
64 I take the view that the plaintiff adequately explained his failure to disclose travel to Turkey in earlier affidavits.
65 As to the fourth issue, counsel for the defendant queried how the plaintiff managed to travel to Turkey whilst having problems with sitting and standing.[42] The plaintiff told the Court that he travelled to Turkey to visit an uncle who had suffered a heart attack. He said his niece and her friend carried his luggage and he used a wheelchair to get to and from the aeroplane.[43] He had his nephew drive him around in his minibus. The trip lasted eleven weeks.
[42]T87-88
[43]T88-89
66 In considering the credit of the plaintiff, I must consider the evidence as a whole. I also note that his evidence was given through an interpreter. There was evidence in the plaintiff’s affidavits that was not challenged by the defendant. I accept that the plaintiff may have forgotten that he initially consulted Dr Uluca for depression and hypertension, and that subsequently, he required referral to a psychologist for the purposes of obtaining a psychologist’s report for his application for a visa. I accept that he may have downplayed and minimised his pre-existing condition. I take the view that the plaintiff did not intend to be misleading about his travel to Turkey in 2015.
67 Accordingly, I place greater weight on his evidence when it is supported by independent evidence. Where there is conflict between the objective evidence and the plaintiff’s evidence on a particular aspect, I am more inclined to accept the objective evidence.
Analysis of the evidence
Pre-existing psychiatric condition of the Plaintiff
68 It was not in issue between the parties that, at the time of the transport accident, the plaintiff was being treated for his mental state as a result of his marriage breakdown and immigration status by a psychologist, Ms Atakan.
69 In June 2011, the plaintiff consulted his general practitioner, Dr Uluca, who diagnosed depression, prescribed anti-depressants, the dose of which was subsequently increased, and referred the plaintiff to Ms Atakan, psychologist.
70 Between July and November 2011, Ms Atakan treated the plaintiff on ten occasions. In September 2011, she diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She conducted a depression, anxiety and stress assessment and concluded: Depression – extremely severe; anxiety – extremely severe; stress – severe.[44] The assessment was repeated in November 2011 with the same results.[45] I conclude that Ms Kurtoglu overstated the plaintiff’s pre-accident condition in her report of November 2012. What she said was inconsistent with her report of February 2012 and the evidence of Ms Atakan. I placeless reliance upon the evidence of Ms Kurtoglu.
[44]JCB 70
[45]JCB 72
71 In December 2011, the plaintiff was referred by Dr Uluca to Ms Kurtoglu, psychologist, who provided a report in February 2012, which attributed the symptoms reported before the transport accident which included anxiety and depression and nightmares in the context of seeking residency in Australia after his failed marriage. Ms Kurtoglu said the plaintiff’s problems stemmed from the relationship breakdown, emotional and verbal abusive from his estranged wife and her family and that the plaintiff developed poor self-esteem as his marriage did not last long and he was sent to Turkey. Ms Kurtoglu concluded that the plaintiff is psychiatrically unfit for work.[46] The report makes no mention of the transport accident.
[46]JCB 41
72 However, in November 2012, Ms Kurtoglu provided a further report where she attributes the plaintiff’s problems, including pain, anxiety and mood symptoms, to the transport accident. She reports that the plaintiff, before the transport accident, was very healthy and was coping with emotional issues very constructively and was looking forward to having a good future in Australia. She concluded that he presented with depressive and anxious symptoms before the transport accident but became more anxious and depressed as a result of the transport accident even though her record of his appointments in January 2012 referred to the transport accident.[47]
[47]JCB 45
73 I accept that prior to the transport accident, the plaintiff had significant social and personal problems. He suffered depression, which required anti-depressants prescribed by his general practitioner. He attended a psychologist fortnightly in the context of separation from his wife and issues about being allowed to stay in Australia. As part of that psychological treatment, he completed a self-report inventory and in that, he scored himself as having extremely severe levels of depression and anxiety and a severe level of stress.
74 Counsel for the plaintiff relied upon notes in Ms Atakan’s records on 11 October 2011 as evidence that the plaintiff was improving prior to the transport accident. The plaintiff reported that he felt less stressed than usual, focused on things within his control and that his appointments with MatchWorks were going to help him look for work in a Turkish speaking workplace.[48] However, these comments need to be considered in the context of the plaintiff’s treatment at the time and the comments of the treating psychologist. I accept the plaintiff may have been feeling a little more optimistic at that interview with Ms Atakan; however, when the records are read as a whole, I do not consider that at the date of the transport accident, the plaintiff was actively seeking work.
[48]T133
The transport accident injury
75 The assessment that I must make of the plaintiff must be undertaken at the time of hearing the application. Accordingly, I will be assisted by the up-to-date medical evidence relating to the plaintiff’s mental condition.
76 In January 2017, Mr Mankir, psychiatrist, said the plaintiff suffers with a Chronic Adjustment Disorder with Depressed Mood and Anxiety which resulted from the transport accident.[49]
[49]JCB 36
77 In December 2016, Dr Ansari, general practitioner, said the plaintiff suffers Post-Traumatic Stress Disorder and traumatisation features likely due to the transport accident.[50]
[50]JCB 80
78 Dr Weissman, psychiatrist, examined the plaintiff on three occasions. In October 2015, he diagnosed Chronic Adjustment Disorder with Depressed and Anxious (agitated) Mood of moderate intensity or severity which is synonymous with a Chronic Major Depressive Disorder, with anxiety, of moderate intensity or severity, which is partly pre-existing and partly accident related. He concluded that overall, considering his current psychiatric state and presentation as a whole, the plaintiff is suffering from a moderate to moderately severe group of psychiatric conditions and mental injuries. However, part of this is due to pre-existing and unrelated factors, probably in the order of fifty per cent. Dr Weissman opined that in terms of the transport accident, the plaintiff is suffering from a mild to moderate group of accident-related psychiatric conditions and mental injuries characterised by:
· Persistent Pain Syndrome/Chronic Pain Disorder
· Mild to moderate Post-Traumatic Stress and Anxiety symptoms and traumatisation features
· Chronic Adjustment Disorder with Depressed and Anxious (agitated) Mood or Chronic Major Depressive Disorder with agitation, of moderate intensity or severity.
79 Ultimately, Dr Weissman thought that these psychiatric conditions were partly pre-existing and partly accident related.[51]
[51]JCB 124-125
80 In December 2016, Associate Professor Doherty, psychiatrist, said the transport accident has, at the most, worsened the plaintiff’s pre-existing Major Depressive Disorder.[52] He said the transport accident has resulted in the development of symptoms suggestive of traumatisation and there is the complaint of pain. He said that, in his opinion, the reliability of the symptoms, and thus the validity of any diagnostic decision, is low. The natural history of the depressive condition should remit under treatment and it is likely that this will occur after finalisation of legal proceedings. He said that there remains mild symptoms of depression and traumatisation currently present arising from the transport accident and maintained now by the legal proceedings against the defendant. In Associate Professor Doherty’s opinion, the direct and secondary effects of the transport accident have a small contribution to the current presentation of the plaintiff’s symptoms.[53]
[52]JCB 184; 188
[53]JCB 189
81 Associate Professor Doherty said the plaintiff’s psychiatric disorder does not interfere with his ability to work. He was unemployed before the transport accident and is unemployed after it. He thought there was no significant difference in respect to the plaintiff’s domestic and leisure activities before and after the transport accident. Associate Professor Doherty took the view that treating clinicians should be more sceptical and objective in their assessment of the plaintiff.[54]
[54]JCB 189
82 In forming his opinion, Associate Professor Doherty reviewed the medical records and reports of the treating general practitioners, psychologists and psychiatrists. He made comments about the contents of those reports. He also was provided with the plaintiff’s self-reporting inventories enclosed in the psychologists’ reports and general practitioners which related to the period prior to the transport accident.
83 I formed the opinion that Associate Professor Doherty’s report was thorough and well-reasoned. He was the only medical witness to analyse in any detail the medical material and therefore the only medical witness to have a complete picture of the plaintiff’s medical history both prior to and subsequent to the transport accident. Accordingly, I rely heavily upon his opinion.
84 Based on Associate Professor Doherty’s opinion, I accept that the transport accident has made a small contribution to the plaintiff’s psychiatric condition, which is Major Depressive Disorder. This was consistent with the opinion of Dr Weissman.
85 I shall now consider the consequences that the plaintiff asserts he suffered due to the transport accident and whether those consequences amount to a “serious injury” pursuant to the Act.
Consequences
86 In closing submissions, counsel for the defendant submitted that it was an impossible task for the plaintiff to show the consequences he suffered as a result of the accident were “severe”, as the consequences complained of now were “very, very similar” to that of before the transport accident.[55]
[55]T110-111
87 In my view, it is useful to make a brief comparison of the plaintiff at the time of the transport accident and the consequences the plaintiff claims to have suffered as a result of the transport accident.
88 At the time of the transport accident, the evidence is that the plaintiff:
· consulted with his psychologist, Ms Atakan, fortnightly
· took 100 milligrams of Pristiq, an anti-depressant, prescribed by Dr Uluca for his psychological issues
· had applied for an Australian drivers licence but did not have one nor did he drive a car;
· had a “fairly limited” work capacity as described by Dr Weissman,[56] which was in part due to his poor English skills; and
· the plaintiff travelled to Turkey for a short period in March 2009.
[56]JCB 123
89 Currently, the plaintiff asserts the following as consequences that he suffers as a result of the transport accident:
· he consults his psychologist, Ms Kurtoglu, fortnightly
· in April 2013, he commenced seeing Dr Ibrahim, psychiatrist, monthly, and since December 2014, sees Dr Mankir, psychiatrist, monthly
· he takes Panadol Osteo, Valdoxan 25 milligram and Cymbalta 60 milligram
· he reported to Dr Weissman that he has not driven since the accident due to being “too scared” to drive[57]
[57]JCB 117; 119
· he remained unemployed after the transport accident, as he was before the transport accident[58]
[58]Associate Professor Doherty at JCB 189
· he travelled to Turkey from July 2015 to September 2015 with assistance from his niece, his niece’s friend and his nephew[59]
[59]T88-89
· he reported to Dr Weissman that he now attends the Turkish Association in Sunshine approximately four to five times per week for three to four hours each time[60]
[60]JCB 117
· he reported nightmares of the transport accident to Dr Hayman but that these had decreased over time;[61] and
· he reported flashbacks of the accident to Dr Hayman; however, Associate Professor Doherty said there appeared to be no flashback phenomena.[62]
[61]JCB 133
[62]JCB 183
90 Having regard to the above, the plaintiff appears to have consulted a psychologist, was prescribed anti-depressant medication, did not drive, did not have an Australian drivers licence, travelled to Turkey and remained unemployed, which occurred both before and after the transport accident. I note Associate Professor Doherty described the plaintiff’s lifestyle as not significantly different now to how it was before the transport accident.[63]
[63]JCB 189
91 Whilst the plaintiff may have suffered from nightmares, he reported this had improved. Moreover, since the transport accident, he attends the Turkish Association for a significant period of time. The main consequence the transport accident appears to have had on the plaintiff is that he now sees a psychiatrist.
92 I take the view that the above consequences to the plaintiff as a result of the transport accident are at the low end of the scale. On the evidence, the plaintiff was suffering from the same, if not very similar, consequences prior to and at the time of the transport accident. In my view, the consequences cannot be described as “severe”.
Conclusion
93 Taking all of the evidence into account, I am not satisfied that the plaintiff has established that the consequences of his mental and behavioural disorders could be reasonably described as more than “serious” to the extent of being “severe” as defined in s93(7)(c) of the Act. In my experience, the consequences to this plaintiff do not meet the test of “severe”. I accept that the plaintiff’s pre-existing Major Depressive Disorder has worsened as a result of the transport accident. I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
94 Accordingly, I dismiss the plaintiff’s application in respect to the mental or behavioural disturbance or disorder.
95 I will hear the parties on costs.
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