Bozinoski v Transport Accident Commission
[2013] VCC 644
•11 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02750
| MICHAEL BOZINOSKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 11 June 2013 | |
DATE OF JUDGMENT: | 11 June 2013 | |
CASE MAY BE CITED AS: | Bozinoski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 644 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Son witnessed mother’s death in transport accident – morbid grief reaction – whether consequences “severe”
Legislation Cited: Transport Accident Act 1986, s93
Judgment: Leave to the plaintiff to issue common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Y Rattray QC with Ms M Pilipasidis | Slater & Gordon Limited |
| For the Defendant | Mr G A Lewis SC with Mr A Newman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 23 May 2010, the plaintiff’s mother, with whom he had a very close relationship, died in a motor vehicle accident a short distance from where he lived. He went to the scene and became very distressed, upon being told of her demise by the police. He claims he has suffered a severe psychological disorder in the nature of a morbid grief reaction, or Chronic Adjustment Disorder. He says many of his domestic, social and recreational activities have been significantly affected. He remains working as a concrete sub-contractor, although says his days are spent in regular recall of his mother and their relationship.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for psychological injury suffered as a result of a transport accident which occurred on 23 May 2010. The plaintiff claims to have suffered a “severe, permanent mental disorder” in the nature of a morbid grief reaction; alternatively, a Chronic Adjustment Disorder. The application is thus brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his partner, clinical notes, medical reports and other documents were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for met to revisit the various relevant sections.
Relevant background
4 The plaintiff is now twenty-six years of age. He was twenty-three at the time of the transport accident. He works as a subcontractor in the concrete industry. He was very close to his mother throughout his life. His father deserted the family when he was aged three, and his mother performed all parenting roles. He is close to his sister.
5 Six months before the transport accident, he and his sister agreed to purchase a house for the family to live in, in part to repay their mother for her years of selfless effort on their behalf.
6 The plaintiff was otherwise well and, in particular, was suffering no psychological symptoms nor difficulties prior to the transport accident.
The transport accident and its consequences
7 On 23 May 2010, the plaintiff received a telephone call to say that his mother had been involved in an accident. He went to the scene, a short distance from his home. He ran towards his mother’s car but was restrained by the police. At some point, a police officer came to tell the plaintiff and his sister that their mother had died. From that time, he claims to have been in a haze, finding it difficult to attend to matters such as the funeral and dealing with relatives.
8 On 24 May 2010, the plaintiff saw his general practitioner, Dr Pinto, and was prescribed a sedative. Dr Pinto noted the plaintiff to be distressed, tearful and experiencing flashbacks and sleep disturbance. He diagnosed a Post-Traumatic Stress Disorder (“PTSD”) and referred him to a psychiatrist, Professor Michael Wong. The plaintiff said he did not go to see this doctor, as he felt it difficult to talk about his mother’s death, and the symptoms he was suffering.
9 He was off work for about eight weeks and returned to see Dr Pinto on 21 July 2010. On that day, Dr Pinto described him as distressed and suffering flashbacks and sleep disturbance. He further saw Dr Pinto on 19 November 2011 and by that time, was seeing a psychologist, Dr Felicia D’Sylva. Dr Pinto noted he was still experiencing grief and depression, although he declined anti-depressant medication.
10 The plaintiff first consulted the psychologist, Dr Felicia D’Sylva on 25 June 2010. Her treatment continued until June 2011. The plaintiff described to Dr D’Sylva frequent recollections of the accident, intrusive images and thoughts of the last time he saw his mother. He said he preferred to stay at home and occupied himself with long hours of work. He felt particular grief on days such as the anniversary of the accident, his birthday, mother’s day and Christmas.
11 Dr D’Sylva noted symptoms of PTSD including extreme distress, and hyperarousal, on a daily basis. She also noted symptoms of difficulty with sleep, irritability, difficulty with concentration and becoming startled. She said the plaintiff experienced symptoms of avoidance daily. She treated the plaintiff with cognitive behavioural therapy and supportive counselling. She noted there was some progress in this therapy and the plaintiff “started to explore” recreational fishing. The treatment ceased when TAC funding stopped, although the plaintiff agreed in cross-examination that he may not have gone on with that treatment. Dr D’Sylva concluded the plaintiff suffered PTSD.
12 The plaintiff was examined on a number of occasions between 2010 and 2013 by Dr Nathan Serry, consultant psychiatrist. Dr Serry noted the plaintiff was pre-occupied on a daily basis with his mother’s loss. The plaintiff said he thought about his mother not just daily, but hourly. He was constantly reminded of her and the things they did together. He was exquisitely sensitive to the mention of the word “mother”. He visited her grave weekly and maintained the monument. He took his grandparents with him. He told Dr Serry that he was depressed all the time, that he was “functioning on auto pilot” at work. He lacked motivation and was unable to return to fishing, which was something that gave him particular pleasure before the transport accident.
13 He said his energy levels were low and he felt flat and lethargic. His sleep was affected, and he had intrusive thoughts. He said his confidence and self-esteem were low and his concentration very disturbed. He described to Dr Serry that he was constantly uptight and on edge. He drove without difficulty, but was more alert. He was reluctant to expose himself to accident reminders. Dr Serry noted the plaintiff was particularly close to his mother. He described her not only as a mother, but as a father and best friend.
14 Upon examination, Dr Serry noted him to be depressed, grief-stricken, frustrated and angry at his mother’s death. Dr Serry said there were prominent post-traumatic anxiety features. Over the years, until 2013, he said the plaintiff suffered ongoing anxiety, tension, frustration, considerable depression and persistent traumatisation. In terms of the plaintiff’s work, Dr Serry said he was doing so in an automatic fashion and enjoying few of the pleasures of life.
15 He diagnosed the plaintiff as suffering a morbid grief reaction with symptoms of anxiety, depression and traumatisation, which he said was now best conceptualised as a moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation. He thought the condition was stable and permanent. He described the condition as life-changing.
16 The plaintiff was examined on behalf of the defendant by Dr Nigel Strauss, consultant psychiatrist, on 30 April 2013. Dr Strauss received a history, similar to Dr Serry, of a very close relationship between the plaintiff and his mother. The plaintiff described psychiatric symptoms, including thinking of his mother several times per day and visiting her grave weekly. He said he did not cope well with the anniversary of his mother’s death, and like dates. He continued to live in the family home, but eventually could not cope and he and his sister moved in with their maternal grandparents. The plaintiff said that his sleep was affected and he reacted to TAC advertisements on television. He was socially less active, and no longer fished nor played golf. He was nervous, frustrated, tearful, depressed and anxious. He found it difficult to give his history.
17 Dr Strauss concluded that the plaintiff had developed an abnormal grief reaction with symptoms of Major Depression and PTSD. He said the condition involved symptoms of disbelief, anger and bitterness with ongoing intrusive thoughts, painful yearnings and recollections of his mother. He thought the condition would continue and was stabilised. He said the grief reaction also involved a combination of traumatisation and Major Depression. He said the plaintiff’s work capacity was not affected, but his domestic and leisure activities were adversely affected. He said the plaintiff did not require treatment.
18 According to the plaintiff’s affidavits, he said the accident was constantly on his mind. He was more cautious in driving a motor vehicle and was sensitive to events surrounding the accident. He drove past the scene of the accident every day for a year or two after it and found that difficult. He said he did not take any antidepressant medication because he had concerns with prescription drugs. He said he continued to work in the concreting industry, but his concentration levels were poor and he was easily distracted. He felt depressed and had trouble sleeping. He occasionally suffered nightmares and flashbacks.
19 According to the affidavit of his partner, Ms Kontouris, she said that after the accident, there was a significant change in the plaintiff. He was sad, lacked confidence and no longer attended social events, as he did before. He was quiet and withdrawn and had nightmares.
20 The plaintiff’s gross income from his work over the relevant years is as follows:
To June 2010 $7,502.00
To June 2011 $17,851.00
To June 2012 $7,222.00
21 The plaintiff accepted, in the course of cross-examination, that he was working 40, even up to 60, hours per week. Although I accept that he worked these long hours, I further accept the opinion of Dr D’Sylva, that this was a means of avoiding dealing with the grief as a result of his mother’s death.
22 In the course of cross-examination, the plaintiff conceded that he had seen Dr Pinto on a number of occasions for various unrelated physical ailments, and there was no record in the clinical notes of reference to the accident or his grief.
23 Despite his claim of being cautious on the roads, the plaintiff was convicted of various driving offences over the period from 2010 to 2012, including careless driving, speeding and driving while holding a mobile phone. His licence was suspended for excessive demerit points. Prior to the transport accident, he had a number of convictions for possession and use of amphetamines and cannabis.
24 Initially, he denied any fishing since the transport accident. But while he admitted to Dr D’Sylva in her notes to his fishing, I accept his evidence that the matters stated in her notes were not correct. He did admit that he would have fished on several occasions with a friend. He attempted volleyball on one occasion with friends. He accepted that his relationship with his partner was steady and that he had not asked for any medication to assist with sleep.
Conclusions
25 Generally, I found the plaintiff a satisfactory witness, giving a fair account of the effect upon him of his mother’s death in May 2010. At times, the plaintiff was somewhat vague and unresponsive, and at times distressed and tearful in the course of evidence. A challenge was made to his credibility in relation to his driving record statements to Dr Strauss that he had not been in trouble with the law, and in relation to his fishing expeditions. However, I did not find any of these matters to be significant credit issues.
26 Overall, I found the plaintiff to be honest, and making the concessions I would expect of an honest witness. I accept the plaintiff was particularly close to his mother prior to the transport accident. I accept his description to Dr Serry that his mother was a mother, father and best friend.
27 There is little difference between the opinions of both consultant psychiatrists. I accept that the plaintiff has suffered a morbid grief reaction with symptoms of anxiety, depression and traumatisation. As Dr Strauss described, ten to twenty per cent of bereaved persons suffer from complicated grief which, in this case, has additional symptoms of Major Depression and PTSD.
28 I accept the opinion of Dr Serry, whose reports I found thorough and considered, that the plaintiff suffers a range of significant psychological symptoms, including a constant preoccupation with his mother’s loss. This occurs frequently during the course of the day. I accept his views that the plaintiff has remained depressed, “functions on auto pilot”, takes little pleasure in recreational activities, feels flat and lethargic and that his concentration is affected. I accept Dr Serry’s opinion that the plaintiff suffers ongoing anxiety, tension, frustration, depression and persistent traumatisation. I accept that all these symptoms are likely to continue.
29 I prefer the opinion of Dr Serry, that the plaintiff will require ongoing treatment, although according to the opinion of Dr Strauss, and the plaintiff’s taxation figures, there is little, if any, loss of earning capacity in his concreting business.
30 Mr Lewis emphasised the plaintiff had received very little treatment, save for a few attendances upon his general practitioner and a year’s psychological counselling from Dr D’Sylva. In my view, however, that lack of treatment is a reflection more upon the difficulty that the plaintiff has in describing his mother’s death and the symptoms that he has suffered, to new practitioners, than it is a measure of the paucity of his psychological symptoms. I further accept that he has reservations about taking prescription anti-depressant medication.
31 In order for leave to be granted pursuant to s93 of the Act, I must be satisfied that the plaintiff has suffered a severe long term disorder. “Long term” has been defined to mean “for the foreseeable future”. I accept, according to the opinion of Dr Serry, that the plaintiff’s condition is long term.
32 According to the authorities, the word “severe” is a word of greater strength than “serious”. There is no particular scale nor means by which to measure the extent to which the consequences of a “severe” injury exceed those of a “serious” injury. Normally, the word “severe” in relation to consequences of a psychological injury, means very significant symptoms which have a very major impact upon the life of a person involved in a transport accident. They may include years of psychological treatment, the prescription of medication, suicidal attempts and hospitalisation.
33 In this application, while the plaintiff received psychological treatment for about twelve months, he has not been hospitalised, prescribed anti-depressants, suffered paranoia nor some of the extreme symptoms sometimes seen in applications of this type.
34 I accept that his employment is affected, in the sense that he is unable to concentrate in the manner he did before, and he finds it difficult to speak to workmates, as the conversation may turn towards their families. I accept, however, that those difficulties do not reflect in any loss of earnings, and he still has the capacity to earn amounts of money similar to those he earned prior to the transport accident.
35 However, I accept that thoughts and recollections of the plaintiff’s mother and the circumstances of the transport accident are in his mind regularly each day. On any view, that would affect his concentration, motivation and ability to enjoy life in the manner he did before.
36 I accept that the effect upon him of his mother’s death has affected very significantly his recreational activities. He has been unable effectively to return to fishing, golf or other outdoor enjoyments. He socialises much less. Moreover, the loss of his mother, given the close relationship they enjoyed, has caused him abnormal and persistent grief. He is regularly depressed, anxious and tearful. I do find these symptoms, and the effect upon his various activities reach the “severe” level as the legislation requires.
37 Perhaps the best description of the plaintiff’s difficulty is that given by Dr Serry, where he said that the plaintiff had suffered a life-changing loss. The relationship he had with his mother was extremely close and she was, in his life, essentially irreplaceable.
38 In these circumstances, the plaintiff’s application succeeds.
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