Choueiri v Transport Accident Commission
[2019] VCC 1154
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05556
| PATRICK CHOUEIRI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 24 and 27 May 2019 | |
DATE OF JUDGMENT: | 1 August 2019 | |
CASE MAY BE CITED AS: | Choueiri v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1154 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – aggravation of existing physical injury – aggravation of existing psychiatric impairment – whether injuries caused by transport accident – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Katanas v Transport Accident Commission [2016] VSCA 140; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J Connell | PRD Legal |
| For the Defendant | Mr P B Jens QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a motor vehicle accident on 19 December 2014 (“the accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘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 application was brought pursuant to both subsections (a) and (c) of the definition of “serious injury”. The plaintiff’s case as put during the hearing of the application is that by reason of the accident, he has suffered the following injuries:[1]
[1]In the plaintiff’s first affidavit sworn 11 September 2016, injuries including fractured ribs, punctured lungs, a cerebral contusion and a right leg laceration were listed as being “Injuries relied upon” (see exhibit P1, page 6). It should be noted that counsel for the plaintiff placed no reliance on these injuries during the hearing of the application.
(a) injury to his lumbar spine;
(b) aggravation of a pre-existing right shoulder injury;
(c) a severe long-term mental disturbance or disorder in the form of Post-Traumatic Stress Disorder and Adjustment Disorder with Depressed and Anxious Mood.
5 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, fairly be described at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[3]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[3]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
6 In relation to an application concerning paragraph (c) of the definition of “serious injury”, the judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of the word “severe”. In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition, is a stronger word than “serious”.[5] Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe”, where used in sub-paragraph (c) of s(17) of the Act, was a word of stronger force than the word “serious”.[6] Phillips JA[7] and Charles JA[8] made comments to similar effect.
[4][1998] 3 VR 833
[5]Mobilio (ibid) at 846
[6]Mobilio (ibid) at 834-5
[7]Mobilio (ibid) at 858
[8]Mobilio (ibid) at 860-861
7 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder is “severe”, I must conclude that those consequences are more than “very considerable” to the plaintiff.[9] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[10]
[9]See Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis (supra); Katanas v Transport Accident Commission [2016] VSCA 140
[10](supra) at 140, per Crockett and Southwell JJ
8 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, by s93(1) of the Act, the relevant mental or behavioural disturbance or disorder must have arisen out of or due to the transport accident. As set out in s93(17) of the Act, the relevant injury must also be long-term.
9 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
10 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[11] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[12] The task of assessing the pain and suffering consequences of an injury, has been held to be largely a question of impression and value judgment.[13]
[11]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[12]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (supra) at paragraph [52]
[13]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
11 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[14]
[14]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
12 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[15]
[15]Petkovski v Galletti (supra)
13 Applying the principles set out in Petkovski v Galletti,[16] in an application like this, where it is alleged that the plaintiff had a relevant pre-existing condition, it is the consequences of the aggravation of that injury which must be assessed. To undertake this task, the application must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[17] If I am satisfied that the additional impairment is “serious” or “severe” (as the case may be) and long term, then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[18]
[16]Petkovski v Galletti (supra) at 443
[17](supra) at 444
[18](supra)
14 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
15 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[19] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross examination.
[19]The Plaintiff’s Court Book was marked as exhibit P1; the Defendant’s Court Book was marked as exhibit D1
16 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and previous injuries
17 The plaintiff was born on 30 November 1980.[20] He is thirty-eight years of age.[21] He presently lives with his parents and his brother.[22]
[20]Exhibit P1, page 3
[21]Exhibit P1, page 3
[22]Exhibit P1, page 3
18 The plaintiff completed Year 12 at St Josephs College in North Melbourne. After finishing high school, he completed a six-month mechanics pre-apprenticeship.[23]
[23]Exhibit P1, page 4
19 He deposed to his work history and other matters in his two affidavits, sworn 11 September 2016 and 12 October 2018. I will set out those details in the paragraphs below, but I note that as the case proceeded, it became plain that much of the plaintiff’s affidavit material, including his work and medical history, was extremely inaccurate. The matters set out in the paragraphs immediately below, are the version of events as contained in the plaintiff’s affidavits.
20 Early in his working life, the plaintiff commenced working for an organisation called “Bimbas”, which is an import company. He was loading and unloading containers at that place of work from about 2000 until 2003.[24] He stopped working there because there was not enough work. He worked for Spotless Linen from about 2004 to 2006, loading and unloading containers. He worked for Noodle Hut as a delivery driver from 2006 to 2009, and as a picker and packer at a cake shop called Sweet by Nature, from 2010 to 2013. He has not worked since then.[25] He deposed to the fact that he was looking for work when the accident happened.[26]
[24]Exhibit P1, page 4
[25]Exhibit P1, page 4
[26]Exhibit P1, page 4
21 Prior to the accident, he played football and went fishing and walking. He said that he would usually play one game of football a week and on average he would fish once a week with his friends. He said that he would walk every second day, approximately seven kilometres, around Princess Park. He would go out with his friends regularly: “… We would go out for meals, go to the pub and would occasionally go ten-pin bowling.”[27]
[27]Exhibit P1, page 4
22 Prior to the accident, he helped to maintain the garden and mowed the lawns. He would pull out the weeds and help with the general cleaning inside the house. He would help wash up, clean the floors and keep the place tidy.[28]
[28]Exhibit P1, page 4
23 Before the accident, he had an active social life and saw his family and friends on a regular basis. He was in a relationship with a woman called Crystal. They would go out for dinner and to the movies. Sometimes she came fishing with the plaintiff.[29]
[29]Exhibit P1, page 4
24 He deposed to the following medical history in his first affidavit:[30]
“10)About seven years before the accident, I experienced anxiety and depression. When I was younger I smoked marijuana. I don’t know if that caused it. I can’t remember why it started but I remember feeling down all the time. I went to see my general practitioner Dr Lee and a psychiatrist for treatment. I remember thinking that I heard voices. It wasn’t voices. I don’t know what it was. It was a difficult time for me. It lasted about two years, from 2004 to 2006.
11)I had been diagnosed with Type 2 diabetes before the accident and had been prescribed Diabex. I make sure I watch what I eat and take my tablets.
12)I had also hurt my right shoulder a few weeks before the accident. I saw my general practitioner for treatment but it wasn’t that bad. I was prescribed some pain killers but did not need any other treatment. … .”
[30]Sworn 11 September 2016, see exhibit P1, page 4
25 He supplemented this information in his second affidavit, viz:[31]
“3)I refer to paragraph 10 of my first Affidavit and say that after 2006 I continued to receive psychological treatment and was prescribed Lexapro and Alprazolam. I had panic attacks. I attended psychologist Ms Carolyne Thompson for treatment in 2013 and 2014. I also attended psychologist Caroline Gilbo in October 2014. I was severely distressed and agitated. I had thoughts of hurting myself and others.
4)In 2006, I had a number of fainting episodes. Investigations into my brain functioning were conducted, including whether I had epilepsy. I believe a cyst was found in my brain. In about 2009, I had back pain. I attended my general practitioner and a physiotherapist for treatment. … .”
[31]Sworn 12 October 2018, see exhibit P1, page 11
The accident
26 The plaintiff described the accident in the following terms:
“On or about 19 December 2014, I was a back seat passenger in a car … with my girlfriend Crystal … travelling on Ballarat Road in Deer Park at about 3.30am when the driver lost control. I was taken by ambulance to Royal Melbourne Hospital. …
… I remember being inside the car and thinking the driver was speeding. The car swerved and it crashed into a concrete barrier. I remember seeing the engine come out of the car and the axle and two wheels flying through the air. When I got out of the car, I noticed petrol was leaking everywhere and the engine was on the road. Crystal was screaming, the driver was trapped and Crystal’s stepmother was unconscious. I was frightened. I kept thinking I should be dead…”[32]
[32]Exhibit P1, page 5-6
27 Following the accident, the plaintiff was taken to Royal Melbourne Hospital where he spent two weeks in intensive care and two days on the general ward. He had a surgical repair to an injury to his leg and two bronchoscopies.[33]
[33]Exhibit P1, page 6
28 The plaintiff consulted his General Practitioner, Dr Roland Lee, for treatment of his injuries. He was referred to a psychiatrist for counselling to help him cope with the effect of his injuries on his mental state. He sees Dr Lee every week.[34]
[34]Exhibit P1, page 7
Evidence of the Plaintiff
29 As referred to above, the plaintiff swore two affidavits.
30 With the caveat already mentioned as to the accuracy of the plaintiff’s affidavits, in summary, the relevant evidence as to the pain and suffering consequences which the plaintiff said that he experiences as a result of the accident, is as follows:
Experience of pain, medication and treatment
(a) he experiences severe lower back pain and pain in his right shoulder and occasionally his left shoulder and right leg. Sometimes he limps because of his right leg pain;[35]
[35]Exhibit P1, page 7
(b) the pain in his lower back and right shoulder is constant. It fluctuates in its intensity and severity. The pain is worse when he moves. He experiences stiffness in his back and right shoulder, which worsens if it is cold, and is worse in the morning than the evening;[36]
[36]Exhibit P1, page 7
(c) the pain in his low back increases when he bends forward. He can only sit or stand for about 10 minutes. The pain in his right should increases when he reaches forward or up above his chest or head;[37]
[37]Exhibit P1, page 7
(d) his right shoulder remains weak and does not function properly. Sometimes his right arm shakes. He experiences a constant dull ache in the right shoulder and upper arm. Sometimes pain comes on for no reason. He has difficulty reaching behind his back or above his head. It is difficult to undo jars. Sometimes he drops items because of the weakness in his right arm.[38] This has placed pressure on his left arm and he now has left shoulder pain;[39]
[38]Exhibit P1, pages 7-8
[39]Exhibit P1, page 13
Medication
(e) he presently takes Panadeine Extra and Panadeine Forte, Stilnox, and Risperdal;[40]
[40]Exhibit P1, page 12
Ability to sleep
(f) he finds it difficult to stay asleep since the accident. He can fall asleep but wakes up in the early morning due to lower back pain. He then lies awake and thinks about the accident and worries about his future. This leaves him tired and cranky during the day. He has less energy and does not feel like doing anything;[41]
[41]Exhibit P1, page 9
Activities of daily living
(g) he is no longer able to play football or go fishing. Doing the gardening or anything around the house is “almost impossible”. He does light grocery shopping but nothing heavy;[42]
[42]Exhibit P1, page 8
(h) he is forgetful and does not socialise. He broke up with his girlfriend, Crystal, after the accident. He still speaks to Crystal once per week. He only showers twice per week. He feels nervous most of the time and startles easily;[43]
[43]Exhibit P1, page 8
(i) since the accident, he has been too scared to drive. He sold his car because he did not use it. He feels anxious when he is a passenger in a car;[44]
[44]Exhibit P1, page 8
Psychological illness
(j) he has felt very depressed and anxious since the accident. He now has less energy and motivation. He has also been more frustrated, irritable and angry than he was prior to the accident, because of his ongoing pain and restrictions and because he is not as active as he used to be. This places pressure on his relationship with his parents and brother;[45]
[45]Exhibit P1, page 8
(k) he has suffered from anxiety since the accident and worries a lot about his injuries and ongoing limitations. He has put on 20 to 25 kilograms;[46]
[46]Exhibit P1, page 9
(l) in November 2017, his shoulder pain intensified;[47]
[47]Exhibit P1, page 12
(m) about the same time, he was diagnosed by Dr Lee with psychosis;[48]
[48]Exhibit P1, page 12
(n) he thinks about the accident every day. He re-experiences it in his thoughts, and dreams about it. He tries not to go past the place where the accident happened. He constantly feels “shattered”.[49] He has nightmares about the accident three or four times per week. He wakes up with “heart palpitations” and is sweating and frightened.[50] He dreams of car parts plying through the air and people being trapped in a car.[51] He summed up the difference between his pre and post-accident presentation as follows:[52]
“The way I feel now is different to how I felt before the injury. Before the injury I was anxious and got angry easily. Now, I feel flat and down. I have nightmares and flashbacks of the accident. I didn’t have that before. I am frightened now when I drive and when I am a passenger. Before the injury, I was able to go out and enjoy myself. The depression I feel now and the anxiety and anger I felt before the injury, feel very different.”
[49]Exhibit P1, page 8
[50]Exhibit P1, page 14
[51]Exhibit P1, page 14
[52]Exhibit P1, page 14
Pecuniary disadvantage
(o) prior to the accident, he had intended to return to work but has been unable to do so due to the injuries he sustained in the accident. He believes that he is also unable to work because of how anxious and depressed he is.[53] His education is limited. He has basic computer skills, but he only has experience in manual work.[54]
[53]Exhibit P1, page 9
[54]Exhibit P1, page 15
31 Under cross-examination, the plaintiff gave the following evidence:
(a) he understood that the purpose of the affidavits was to allow the Court to assess the injuries he suffered in the accident and how those injuries have affected him;[55]
[55]Transcript (“T”) 11, Lines (“L”) 22-27
(b) there has been no change to his presentation since he swore his second affidavit in October 2018;[56]
[56]T12, L9-11
(c) he does not recall seeing specific doctors, but he admits that the content of the various reports that were put to him reflected what he had told those doctors at that time;[57]
[57]See for example T28-34; T43
(d) his mother is now wheelchair bound and requires a carer;[58]
[58]T12, L26-31
(e) for the last three years, the plaintiff has been the official carer for his mother.[59] It is his activities caring for his mother that make it hard for him to engage in social activities with his friends.[60] He is “stuck at home” because of his commitment to his family, and is “not into doing things”;[61]
[59]T13, L5-11
[60]T85, L11-14
[61]T87, L23-28
(f) he agreed that in order to be able to claim a carer’s allowance, he had to have a doctor indicate that he was able to do the job;[62]
[62]T13, L16-27
(g) before he obtained the carer’s allowance, he was on Newstart;[63]
[63]T14, L2
(h) at school he was good at psychology and mathematics;[64]
[64]T15, L17-20
(i) he stopped working at the Noodle Hut because he lost his licence.[65] He is now back driving a car and has received a few fines while driving. He is now the driver for his family. He is now out driving most days of the week.[66] He “gets a chill up his spine” when he sees a speeding vehicle;[67]
[65]T16, L20-23
[66]T78-79
[67]T85, L2-3
(j) at the time of the accident, he was looking for warehousing work and he wanted to obtain his Certificate III in warehousing as a pre-requisite for that job.[68] He agreed that he told Associate Professor Doherty, a psychiatrist who examined him for the defendant in August 2018, that he got the sack from Bimbas, “for not turning up and not letting them know” that he was not going to turn up.[69] He agreed that the work did not “run out” at that job;[70]
[68]T18, L27-30
[69]T81, L26-31
[70]T82, L1-6
(k) he agreed that he also told Associate Professor Doherty that the longest relationship he had been in was with Crystal and that he has “not been that good with relationships”.[71] He agreed that he told Associate Professor Doherty that Crystal had called off the relationship because “[the plaintiff] did not ask her how her mother is getting on”;[72]
[71]T82, L26-29
[72]T83, L19-31; T84, L1-3
(l) prior to the accident, his health was “perfectly fine”;[73]
[73]T18, L31
(m) apart from diabetes, he did not have any health problems before the accident;[74]
[74]T19, L6-15
(n) he did not take any medication either for nerves or for pain, prior to attending at the hearing of his application;[75]
[75]T19-20
(o) he hurt his shoulder a few weeks before the accident when he fell off a ladder. He fractured his wrist at the same time. [76] He required an internal fixation in the wrist.[77] His arm was in a sling;[78]
[76]T25, L25-29
[77]T65, L4-24
[78]T25, L25-29
(p) two days prior to the accident he attended his general practitioner complaining of severe pain in his right shoulder. He was initially prescribed Panadeine Forte for the pain in his shoulder and wrist, but it was not helping.[79] His general practitioner changed the prescription to Endone, which was stronger and that helped “a little bit”.[80] He was taking three to four Endone at a time.[81] It was his right shoulder that was hurting the most. He was described as having a reduced range of movement “+++” in his right shoulder.[82] He was referred for an x-ray of the right shoulder the next day.[83] His shoulder is a great impediment to his ability to go fishing at present.[84] It was also a problem before the accident;[85]
[79]T53, L21-31
[80]T55, L8-27; T56, L2-8
[81]T66, L9-12
[82]T54, L16-27
[83]T55, L1-7
[84]T85, L4-10; see also T91, L8-13
[85]T91, L11-14
(q) he has had symptoms of psychosis, delusions and auditory hallucinations since he was twenty-two years old. He has also had thoughts of harming people and aggressive feelings,[86] especially when drinking alcohol.[87] He has assaulted people in the past when he has been under the influence of alcohol;[88]
[86]T30, L11-30
[87]T31, L10-14
[88]T31, L18-21
(r) he had his first panic attack when he was twenty-two, which was characterised by raised heart rate, difficulty catching his breath, sweatiness and dizziness.[89] Since then he has had bad panic attacks about every six months, but less severe attacks more frequently. From about 2009, the panic attacks became more severe and in about May 2014, he was experiencing panic attacks every second day.[90] The attacks tended to be worse if he had not slept well;[91]
[89]T36, L18-26
[90]T37, L1-10
[91]T37, L11-12
(s) he agreed that in 2016, he told Dr Assadi that he had been hearing voices occasionally “for the past few years”. The voices were mainly derogatory and negative. He agreed that he had also described paranoid thoughts to Dr Assadi. As a consequence, he felt tense and uncomfortable in public.[92]
[92]T75-76
It was clear from the timeline, some of which involved the plaintiff being in employment, that all of these issues pre-dated the accident.[93] He only saw Dr Assadi on one occasion.[94] Dr Assadi put him on risperidone. The plaintiff said “that was to help me for my dreams and stuff”. Dr Assadi noted and the plaintiff agreed that the risperidone was for treatment of low-grade psychotic symptoms such as the hearing of voices;[95]
[93]See for example T76, L1-6
[94]T77, L7-9
[95]T80, L7-10
(t) he denied having issues with his body image, but agreed that prior to the accident, he was concerned about his sexual functioning.[96] In May 2014, he reported his libido as having been low for several years;[97]
[96]T31-32
[97]T38, L26-28
(u) he agreed that in May 2014, he might have been unemployed for the past year. That means that he was unemployed for at least eighteen months prior to the accident;[98]
[98]T34, L22-28
(v) he agreed that in May 2014, he told a psychiatrist, Dr Owens, that for the past five-and-a- half years he had been taking a high dose of Xanax daily. He said that he knew he was dependent on that drug. This was because of his underlying panic and anxiety problems;[99]
[99]T35, L12-25
(w) in May 2014, he was described as having “troubling negative thoughts”.[100] He agreed that in March 2016, he described his panic attacks to Dr Assadi as having been present for the past seven years, comprising “… unexpected fear and intense anxiety when his mind goes blank and he develops palpitation and tremor in the legs and feels difficulty in breathing”;[101]
[100]T39, L3-12
[101]T74, L12-21
(x) prior to the accident, he was prescribed Lexapro, which helped him get off the Xanax.[102] He is completely off Xanax now;[103]
[102]T36, L14-16
[103]T75, L1-13
(y) he agreed that when he saw Ms Caroline Gilbo in October 2014, he was “highly distressed”;[104]
[104]T39, L24-28
(z) he does not recall seeing a psychologist called Carolyn Thompson in September 2013, but agreed that at that time, he may have experienced several years of anxiety and depression that were affecting his ability to work.[105] At that time, his day was unstructured and he spent his time “mainly ‘in his bedroom, watching television and DVDs’”.[106] He rarely socialised.[107] He would sleep for eight to nine hours but would still wake up “feeling dreadful”;[108]
[105]T40-41
[106]T42, L2-29
[107]T45-46
[108]T47, L1-5; T50, L24-31; T51, L1-2
(aa) he experienced panic attacks when his father suffered a heart attack in about 2007.[109] He left his job as a delivery driver at that time.[110] He was taught breathing techniques and still employs those today. He copes well with his panic attacks today;[111]
[109]T44, L5-16
[110]T46, L17-24
[111]T45, L20-24
(bb) in September 2013, he had gained 40 kilograms over the past five years, and developed Type 2 diabetes.[112] In 2013, he weighed in excess of 100 kilograms.[113] In April 2014, he weighed about 126 kilograms;[114]
[112]T47, L6-25
[113]T48, L3-4
[114]T67, L1-3
(cc) he agreed that about this time, he was keen to get work on a night shift, as “I couldn’t wake up in the mornings”.[115] In early 2014, he felt that his anxiety was preventing him from being more active;[116]
[115]T48, L25-26
[116]T49, L24-30
(dd) he agreed that there were some “dark clouds” in amongst the “rosy picture” that he had painted in his evidence-in-chief about his pre-accident state;[117]
[117]T51, L19-28
(ee) he recalls working as a concreter prior to the accident.[118] That caused him to develop some pain in his low back, for which he needed to see a physiotherapist at a place called “Back in Motion”;[119]
[118]T58, L1-6
[119]T58, L6-20
(ff) at that time (in 2009) he reported a one-year history of lower back pain, which came on with work and was aggravated by lifting, carrying things, walking and leaning forward from the waist.[120] There was a constant ache in his central lower back.[121] The plaintiff said that “it got better”.[122] He said that he worked as a concreter for three years,[123] although the records from “Back in Motion” indicated that when the plaintiff attended in 2009, he had been unemployed at that time for one year, and had been working as a concreter for only two months;[124]
[120]T58-59
[121]T58, L21-30
[122]T58, L21-25
[123]T59, L13-17
[124]T60, L1-10
(gg) he agreed that when he saw Dr Assadi in 2016, he made no mention of back pain. He said “I must have forgot”.[125] He agreed that he had a good rapport with Dr Assadi and did his best to give that doctor a full history of how he was coping so that he could help the plaintiff;[126]
[125]T78, L1-4
[126]T77, L1-6
(hh) he agreed that he told Associate Professor Doherty in 2018 that “the pain is located solely in his shoulder”. He said that he could not recall telling that doctor that there was “nothing wrong” with his lower back now;[127]
[127]T84, L14-23
(ii) he agreed that when he described his functional limitations to Associate Professor Doherty, he referred only to the shoulder problems;[128]
[128]T86, L1-12
(jj) he agreed that in June 2018 when he saw Mr Gary Speck, an orthopaedic surgeon, for the defendant, he told him that the central low back pain was “only a little bit of a problem,” describing it as a “sharp pain which was intermittent and only present with quick bending”.[129] He agreed that pain in the low back upon bending forward, had been present prior to the accident;[130]
[129]T91, L25 – T92, L3
[130]T92-93
(kk) he agreed that in August 2011, he was referred to a psychologist called Dr Alan Fox. The referral from his then general practitioner, Dr Wassouf, recorded that at that time, the plaintiff felt “very weak and lethargic, and believes that he cannot do any kind of work. He is on the dole. … ”.[131] The plaintiff agreed that at this time, prior to the accident, he was regularly seeing more than one doctor for his problems, including anxiety, weight issues, depression and coping with life;[132]
[131]T71, L3-24
[132]T72, L18-23
(ll) he agreed that he told Associate Professor Doherty that his appetite is fantastic and that he is losing weight slowly and that is a good thing. He now weighs about 105 kilograms, down from 126 kilograms before the accident;[133]
[133]T86-87
(mm) he agreed that he told Associate Professor Doherty that regarding his mental state now, he is “not too bad, okay. Just so long as I don’t think about [the accident], it’s okay”.[134]
[134]T83, L14-18
(nn) he confirmed that apart from seeing Dr Assadi on one occasion, he has not received any treatment for his psychological problems since the accident.[135] He agreed that he told Associate Professor Doherty in 2018 that in relation to his mood, he is “happy and content” and “not whinging and not sad”. He said that this is still true now;[136]
[135]T84, L5-12
[136]T86, L13-25
(oo) he told Associate Professor Doherty 2018, that he still suffers from some anxiety and he “feels a little uptight” and he is “… not sure why or what brings it on … it just happens”.[137] At this time, he also said that he does not experience any physical symptoms associated with anxiety and is not paranoid. He also said in 2018 that he was not experiencing auditory hallucinations, nor did he feel “… persecuted, conspired against or followed”.[138] He agreed that he felt that there had been “… an improvement in that area” since the accident;[139]
(pp) he agreed that in February 2019, he told Dr Ingram, a psychiatrist for the defendant, that he had some flashbacks about once per week, but no nightmares about the accident.[140] He also agreed that he told Dr Ingram that while he had “felt down at times”, he had generally “been happy with his life” and he had not “been tearful”.[141]
[137]T87, L29-31
[138]T88, L1-8
[139]T88, L9-22
[140]T94, L9-13
[141]T94-95
Medical evidence
32 There are numerous medical reports contained in the tendered material.
33 Somewhat surprisingly, there is no report from the plaintiff’s general practitioner, Dr Lee. Nor did the plaintiff rely upon a report from any treating specialist, with the exception of a report from Dr Seyed Assadi, psychiatrist, who saw the plaintiff for assessment on a single occasion.
34 Both sides filed reports from medico-legal experts. A précis of the relevant medical material is set out below.
Pre-accident presentation
35 Various reports in the Defendant’s Court Book address the plaintiff’s pre-accident presentation.
36 A document entitled “Initial Subjective Assessment” completed by a physiotherapist who was consulted by the plaintiff on 29 April 2009 in relation to back pain, records[142] a diagrammatic depiction of pain and aching in both arms at around the elbows, both on the front and back of the arms and a constant ache rated at 7 to 8 out of 10 in the lower back.
[142]Exhibit D1, page 122
37 Under the heading “Social History/Activity Levels”:
“Unemployed for 1 yr
been working as a concreter for last 2/12 – very physical
occasional walk – very rare
no regular physical activity.”
38 Under the heading “Current History”:
“[Approximately] 1 yr of [lower back] pain (on & off) – no specific incident
since new job – constant.”
39 In August 2011, Dr Abdullah Wassouf, the plaintiff’s general practitioner, wrote in a referral letter to Dr Alan Fox, psychologist:[143]
“Thank you for seeing this man with symptoms of anxiety and depression. He also suffers from panic attacks and anger of variable intensity. He feels very weak and lethargic and believes that he cannot do any kind of work. He is on the dole …
He feels better on Xanax ... .”
[143]Exhibit D1, page 121
40 In a letter from the plaintiff’s then general practitioner, Dr Daiva Dawson, to Carolyne Thompson, psychologist, dated 30 August 2013, that general practitioner described the plaintiff in the following terms:[144]
“… [the plaintiff is] a 32yr M with lifelong … [anxiety and depression] issues. He is also prone to acute anxiety episodes, which he calls panic attacks.
Patrick takes large quantities of Alprazolam 2mg despite all of my attempts to wean him from this drug…
Patrick lives with his parents & it is only over the past couple of years that he has shown any enthusiasm for getting a job. He is particularly proud of gaining his special licence qualification to operate in high-risk settings … & since then has had 2x very successful jobs in which he was very happy & felt useful. Patrick is currently looking for a 3rd similar type of job … .”
[144]Exhibit D1, page 108
41 Ms Thompson responded by letter dated 22 September 2013:[145]
“… Sessions will focus on motivating Mr Choueiri to engage in a more structured approach to his day, and subsequently breaking his current cycle of remaining mainly in his bedroom watching television and DVDs. In this respect, we have already instigated a contract of morning exercise and I am hoping to expand on this to include progressively more challenging tasks with a view to hopefully encouraging Mr Choueiri to actively pursue employment opportunities. … .”
[145]Exhibit D1, page 109
42 In her notes of consultations with the plaintiff, Ms Thompson, noted the following matters:[146]
[146]Exhibit D1, page 116
“18.8.13
… he rarely socialises now … his typical daily routine is that he sleeps for eight to nine hours, but still awakes in the morning feeling “dreadful.” Although Patrick said he could go without food all day without missing it, he nonetheless has gained 40kg over the past five years and now has diabetes type 2 … .”
“2.10.13
… Patrick … said he suffered schizophrenia and indicated that the television talked to him, which he found calming … .”
“12.2.14:
… Patrick indicated that he felt his anxiety was preventing him from being more active … .”
43 A general practitioner mental health care plan dated October 2014 describes “ongoing anxiety/panic … on Alprazolam … for 6 years – now trying to reduce dose slowly …”.[147] In that document, the plaintiff recorded the following as feelings which he experienced “most of the time”:
[147]Exhibit D1, page 105
(a) being tired for no good reason;
(b) feeling so nervous that nothing can calm him down;
(c) feeling hopeless;
(d) feeling so restless and fidgety that he cannot sit still;
(e) feeling depressed;
(f) feeling that everything is an effort;
(g) feeling worthless.
44 In the same document he described that “all of the time” he felt so sad that nothing could cheer him up.[148]
[148]Exhibit D1, page 107
45 Dr Nicholas Owens, psychiatrist, saw the plaintiff on 12 May 2014. After noting, amongst other things, that the plaintiff had told him that “he does not take regular physical exercise”, Dr Owens expressed the following opinion:[149]
[149]Exhibit D1, page 113
“Patrick suffers from panic disorder without agoraphobia, and this appears to have been present for several years.
…
I cannot identify any symptoms to support a diagnosis of a psychotic illness or schizophrenia.
…
He needs to lose weight, and engage in regular physical exercise. This is likely to result in better coping ability and improve his anxiety symptoms … .”
46 By contrast, in terms of a mental state examination, Ms Caroline Gilbo, psychologist, reported that when she saw the plaintiff late in October 2014:[150]
[150]Exhibit D1, page 114
“Mr Choueiri presented to his first session as highly distressed reporting he ‘can’t go on anymore’ and he is ‘full of anger’. He reported recent very high levels of substance use, including alcohol and Mersyndol (10 day strength at a time) …
Mr Choueiri presented with symptoms of psychosis (delusions and auditory hallucinations) which he reports he has been experiencing since the age of 22, with his reporting current aggressive content, and reporting he thinks if he harms someone it may provide him [with] relief of his symptoms. Mr Choueiri did not identify anyone he wished to harm, but reported it was most likely to happen if he was under the influence of alcohol. He reported he has a history of assaulting others while drinking but had not been charged. Mr Choueiri reports the voices say to him ‘you’re dead’.
… Mr Choueiri was unable to recall a recent visit to a psychiatrist until prompted a number of times.
I informed the client at the end of the session that I was very concerned about him and would organise an urgent psychiatric assessment for him and that he needed to be comprehensively assessed and treated by a psychiatrist, to which he agreed. I informed him I did not believe I was the appropriate person to treat him on an ongoing basis.
As you are aware I have reported my concerns of what I perceive to be his high risk of harm to himself and to others to you, to the North Western Mental Health Team and also to Brunswick Police on the 22/10/2014.
… .”
47 The plaintiff did not file any medical evidence as to his pre-accident presentation.
Post-accident presentation
48 Professor Matthew Naughton, sleep and respiratory physician, assessed the plaintiff on or around 1 March 2017, for the purposes of a joint report for this proceeding. In a report dated 1 March 2017, Professor Naughton recorded the plaintiff’s “Present Complaints” as including, relevantly: “Chronic pain – (R) shoulder – Targin daily …”.[151] No mention was made of any issue with the plaintiff’s lower back.
[151]Exhibit D1, page 59
49 In a joint report dated 21 March 2017, Dr Jacques Joubert, consultant neurologist, set out as part of the history which he took from the plaintiff:[152]
[152]Exhibit D1, pages 102-103
“Current complaints and symptoms
Mr Choueiri still has some stiffness and limitation of movement of the right shoulder and from time to time, non-significant pain in the right leg when he walks.
…
Activities of daily living
Mr Choueiri is able to do all normal activities of daily living such as eating, drinking, showering and toileting as he did before, but he uses his left hand when he has a bowel motion.
…
Mr Choueiri drives normally.
…
General Impression
The general impression is that Mr Choueiri was a contented and polite man who gave a good history.
General examination
Apart from the limitation of movement of the right shoulder, there was no abnormality to be found … .”
50 Mr Gary Speck, consultant orthopaedic surgeon, examined the plaintiff for medico-legal purposes on behalf of the defendant on 27 June 2018. In a report dated 27 June 2018, Mr Speck recorded the following relevant matters:[153]
[153]Exhibit D1, page 27
“He stated he has not been fishing since the accident because of his shoulders. As he had an internal fixation of his right forearm prior to the accident it is likely that he was unable to fish prior to the accident due to his fall from the ladder and right upper limb injuries.
The back he said was central low back pain and was ‘only a little bit’ of a problem with difficulty bending over and no treatment. He described it as a sharp pain which was intermittent and only present with quick bending. He was not undertaking any exercises and nor had he had a regular exercise program.
…
In relation to his back on specific questioning as to his period of time as a concreter…he said that he did not stop that work because of back problems but because of ‘too much physical work’. (It is noted in his local medical officer’s records, Dr. Roland Lee, that he had attended with back pain as a result of that work with a suggestion of ceasing it.)
He said that he attends Dr. Lee on a weekly basis for medication and checking of his diabetes. He does not attend any other practitioners and had no other forms of treatment, not even putting heat on the affected parts.
… .”
51 Mr Speck went on to quote from relevant general practitioner records with which he had been supplied, viz:[154]
[154]Exhibit D1, pages 30-31
“Medical record from Brunswick Central Medical Centre from the 15th April 2009 states:
‘low back has started to ache a little…Wants PNE…authority scrip[t] for 60 x 5 given … advised freq’t short breaks when he feels his back tightening.’
Notes from May 2009 (specific date unreadable):
‘back pain worsened…saw physio TX … stretches redemonstrated … advised to down tools and stretch (hyper-extend) whenever back starts to pull/tighten …’
Information from the Brunswick Central Medical Centre 27/10/14 …:
‘says seen RMH ED on Thursday as fell off ladder picking fruit at home on[to] right arm – had ORIF now POP – discharge yesterday.
now shoulder pain worse than wrist. Needs repeat Endone – taking 2-3 at a time.’
[Information from the Brunswick Central Medical Centre] 17/12/2014:
‘complaining of severe pain right shoulder 3 days woke up with it – seen a GP treatment Panadeine Forte – says took 4 Mane then 4 evening no help – now nauseous ++. Says pain since fall and fracture wrist in October – no mention of shoulder in ED letter. On examination tender proximal humerus reduced range of movement ++ for x-ray and review tomorrow. Given Endone for now …’.”
52 In answer to specific questions, Mr Speck observed, as to the pre-existing injuries:[155]
“Based on information provided from the general practitioner’s notes and the Royal Melbourne Hospital Mr Choueiri had a recent fracture of the right wrist with open reduction internal fixation, an injury to his right shoulder with an avulsion fracture of the greater tuberosity, and long-standing back complaints dating from 2009.
...
The back pain limited his work and he apparently ceased physical work as a concreter based on that. The recent right wrist and shoulder injury was only 2 months prior to the accident and a long-term view of the restrictions from that are not possible. Obviously from the notes from the general practice his right shoulder was providing significant symptoms and requiring ongoing and active treatment and investigation.
… .”
[155]Exhibit D1, page 31
53 In response to the question, “What is the prognosis for the plaintiff’s transport accident related physical injuries (taken in isolation)?”, Mr Speck provided the following opinion:[156]
[156]Exhibit D1, pages 32-33
“Fracture of the left chest with rib fractures from the 3rd to 8th ribs which have subsequently healed without disability. Prognosis good. Resolved.
Laceration of the right calf sutured and healed without disability. Prognosis good. Resolved.
Soft tissue injury to the low back with temporary exacerbation, now resolved. Prognosis good. Resolved.
Right shoulder pain with pre-existing avulsion injury from fall 2 months prior to the MCA. Prognosis relates to the underlying injury with the high likelihood the tendon tears identified on the MRI scan in 2015 [were] pre-existing relating to the avulsion injuries noted on the pre-MCA x-rays. No active treatment has been sought from specialists since the accident.
Development of left shoulder symptoms without any apparent specific relation to the MCA. There are no investigations to indicate any specific pathology related to the left shoulder nor any suggestion in the [E]mergency Department notes of a left shoulder injury at the time of the accident.
…
… I don’t believe there is any incapacity for work related to the accident.
… .”
54 In a joint report dated 5 October 2015, Mr Thomas Kossman, orthopaedic surgeon, provided the following opinion:[157]
[157]Exhibit P1, pages 134-135
“… Since the accident he has complained of persistent lumber back pain and persistent right shoulder pain. Prior to the accident his lumbar spine was asymptomatic. Approximately one month prior to the accident, he sustained a displaced fracture of the greater tuberosity of the right shoulder that was managed non-operatively.
…
I recommend a lumbar spine MRI scan and a right shoulder MRI scan to assist with a more definitive diagnosis and management plan.
…
Mr Choueiri’s prognosis is difficult to determine in the absence of a definitive diagnosis …
…
Given that I have no clinical notes and no documentation regarding Mr Choueiri’s right shoulder range of motion prior to the motor vehicle accident, I am unable to apportion … what is and is not accident related.. … .”
55 In an updated report dated 6 December 2018, Mr Kossman once more recited the plaintiff’s physical complaints, again reiterating the history given that the plaintiff’s lumbar spine was previously “asymptomatic”.[158] He continued:
“… Mr Choueiri had an onset of left shoulder pain since I examined him in October 2015. He could not give me an exact time point or reason for the onset of his left shoulder pain and movement restrictions. … .”[159]
[158]Exhibit P1, page 144
[159]ibid
56 In response to a question about which injuries were related to the accident, Mr Kossman listed the injury to the right shoulder as “causing pain and movement restrictions”, and noted that there was also “left shoulder pain and diminished range of motion” and “persistent lumbar back pain”.[160] I note that later in his 2018 report, Mr Kossman specifically says, in relation to the right shoulder injury:
“[The plaintiff] told me that he had minor issues with his right shoulder joint in [the] form of pain and movement restrictions prior to the transport accident on 19 December 2014. … .”[161]
[160]Exhibit P1, page 145
[161]Exhibit P1, page 147
57 In a section of his 2018 report entitled “Prognosis,” Mr Kossman set out the following opinion:[162]
“Mr Choueiri’s prognosis regarding his lumbar spine is guarded. He will require further treatment…with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture …
Mr Choueiri’s prognosis regarding the right shoulder condition is poor. … [he] suffers from ongoing pain and movement restrictions in his right shoulder joint and he will require further treatment for his right shoulder joint condition with pain medication…[he] is at risk that he may develop osteoarthritic changes in his right shoulder joint. …
Mr Choueiri’s prognosis regarding his left shoulder joint is unclear …
…In my opinion, Mr Choueiri has no work capacity. Mr Choueiri should avoid working constantly with his right and left shoulder joint, work above shoulder or head height or lift heavy items weighing more than 5 kgs … in my opinion Mr Choueiri is not able to return to any physical work. In my opinion he is 100% incapacitated for work and there is a possibility that he may never return to work. …”
[162]Exhibit P1, pages 146-147
58 Other than reporting what the plaintiff had told him in 2018 about his right shoulder pre-accident range of movement, Mr Kossman did not elaborate on the difference in the opinions he expressed in the 2015 and 2018 reports, regarding the link between the present right shoulder symptoms and the accident. Having regard to the medical records which are in evidence, it is clear that Mr Kossman was misinformed about the extent of the pre-accident right shoulder restrictions. Further, Mr Kossman made no attempt to articulate the facts upon which he based his opinion that the left shoulder injury was related to the accident. Finally, he was misinformed about the presence of pre-existing lumbar back symptoms. On the basis of all of these matters, I reject Mr Kossmann’s opinion that the plaintiff’s current symptoms in his right shoulder, left shoulder and lumbar spine, are a consequence of the injuries which the plaintiff sustained in the accident.
59 In a report dated 18 March 2016, Dr Seyed Assadi, consultant psychiatrist, reported the following matters:[163]
[163]Exhibit P1, page 127-128
“Patrick also reported a history of low-grade psychotic symptoms. He said that he had been hearing voices occasionally for the past several years. …
Patrick said that he had a severe motor vehicle accident in December 2014.
… Patrick claimed that he was still suffering from shoulder pain and movement restriction. …
…
Patrick reported symptoms of post-traumatic stress since the accident. He reported nightmares nearly every night, complained of frequent flashbacks and reported preoccupation with the accident. …
…
Based on today’s assessment I believe that Patrick has been suffering from Panic Disorder as well as low grade Psychosis for several years. [the] latter is characterised by paranoid ideation as well as auditory hallucination.
…
He [also] currently shows Post-Traumatic Stress Disorder characterised by nightmares, flashbacks, avoidance, social withdrawal and irritability.
. … .”
60 Dr David Weissman, consultant psychiatrist, provided joint reports dated 5 August 2015 and 9 June 2016. Quoting from the most recent of these reports, Dr Weissman diagnosed the plaintiff in the following manner:[164]
[164]Exhibit P1, page 178
“… On the balance of probabilities he is suffering from chronic, pre-existing paranoid schizophrenia. He may or may not have some acute psychotic symptoms at present, but he does have a prominent negative or defect state of this condition. He may or may not have a history of panic disorder but, either way, this currently appears to be in remission. He has significant pre-existing psychiatric impairment as well as pre-existing psychological and emotional vulnerability. He has unrelated benzodiazepine/Alprazolam dependence.
…
In terms of the subject transport accident, he has mild traumatisation features and a small amount of secondary, reactive or consequential psychiatric impairment.
In terms of his mild group of accident-related psychiatric symptoms and impairment, he does not require specific psychiatric, psychological or psychotropic treatment or intervention and there is no specific psychiatric incapacity for work.
His psychiatric prognosis for the future is very uncertain and guarded, and most likely relatively poor, negative and unfavourable, but this is predominantly due to pre-existing and unrelated factors.
… .”
(emphasis in original).
61 By contrast, Associate Professor Peter Doherty, consultant psychiatrist, obtained the following relevant history from the plaintiff on 28 August 2018:[165]
[165]Exhibit D1, pages 6-12
“He told me his last paid employment was in 2011 ... picking and packing for a business titled Sweet By Nature … he stopped work [there] because there [was] not enough work and he was made redundant.
…[before that] he undertook warehousing work for four and a half years and then ceased that. He told me he got the sack for not turning up and not letting them know he was not going to turn up.
He told me his longest relationship [was] with a girlfriend … for three months. He told me he has not been that good with relationships.
… after the transport accident [he was scared to be in the car for a year or a year and a half]. He said now it is okay … as long as he does not see anyone speeding.
… I asked him his views about his psychological recovery and he said it was ‘not too bad, okay, just as long as I don’t think about it, it’s okay’.
He told me he continued with his girlfriend for three months and then she called it off. When asked why, he said it was, ‘because I did not ask her how her mother is …’.
He told me the pain is located solely in his right shoulder. He told me his function has gotten better. He told me there is nothing wrong with his low back now.
…
I asked the plaintiff about his mood. He told me he is ‘happy and content’. He told me he is ‘not whinging and not sad’.
He said his appetite is fantastic. He told me he is losing some weight slowly and that is a good thing.
…
His perceptions were of normal intensity and were not heightened. There was no exaggerated startle response, hyperarousal or hypervigilance. There were no abnormalities of perceptions. In particular, no vocal auditory hallucinations.
He was alert, aware, orientated and in clear consciousness …
…
I considered the appropriate psychiatric diagnosis in this case…
…There are not enough symptoms of traumatisation at the present time to warrant the making of a psychiatric diagnosis of PTSD …
…
Based on his reported history there is no diagnosable psychiatric condition currently present.
Based on the history in the supplied material there is a substance use disorder, predominantly that of alprazolam (Xanax) that has been present before the transport accident and continued after it.
... .”
62 The most recent report regarding the plaintiff’s psychiatric presentation was dated 13 February 2019 and provided by Dr Nicholas Ingram, consultant psychiatrist. Dr Ingram provided an assessment and opinion after setting out the history he received from the plaintiff, viz:[166]
[166]Exhibit P1, page 189
“PRESENT PSYCHIATRIC HISTORY
Apart from having flashbacks in the car…[he] had also had flashbacks come into his mind on other occasions, usually about once per week …he had not had nightmares about the accident.
… he had also felt down at times…this had only been part of the time and generally he had been happy with his life … there had been no loss of motivation or interest and he had not been tearful …
…
SUMMARY
Mr Choueiri is a 38-year-old man who presents four years after a motorcar accident where he injured his back and both shoulders. Since then he has had chronic pain in these areas and has become more limited in what he can do physically.
Psychologically it seems that he suffered from panic attacks for a period of several years prior to the accident and one of the other medical reports suggest that he had psychotic symptoms, though he himself denied ever having had any hallucinations or delusions …
He found the accident extremely frightening and had feared that he would die and since then he has had flashbacks to the accident, usually when he had been in a car, though sometimes on other occasions, and he had avoided driving where possible. He had also become mildly depressed on occasions because of his pain and limitations.
ASSESSMENT
I feel Mr Choueiri is suffering from a mild chronic adjustment disorder with depressed mood, which is a secondary consequence of his chronic pain and physical limitations. He also has some residual symptoms of a post-traumatic stress disorder, which are a primary consequence of the accident. … .”
63 Having been asked to review the reports of Doctors Weissman and Ingram, in a supplementary report dated 27 February 2019, Associate Professor Doherty stated:
“… the additional reports do not change my opinion about diagnosis.
…
… there is no other psychiatric condition, apart from a panic disorder compounded by substance use disorder, that can be reliably made. I continue to hold that view.
… the unreliability of the presentation of symptoms [by the plaintiff] should be given considerable weight. … .”[167]
[167]Exhibit D1, page 19
The issues
The Plaintiff’s credit
64 No issue was raised about the plaintiff’s truthfulness during the application. The submission that was made was that the plaintiff is an unreliable historian. The inaccuracy of what he had told various doctors was put to him on various occasions.[168]
[168]See for example T96, L8-12; T96-97
65 The fact that the plaintiff was an inaccurate historian was, appropriately, conceded by his counsel.[169]
[169]See for example T60, L30-31 and T184, L13-31, T185-186
66 It was evident from the way in which the evidence emerged during cross-examination, and I find, that the plaintiff was a startlingly poor historian when it came to giving accurate evidence about his pre-accident presentation, his post-accident injuries and the consequences to him of those injuries.
67 Given this, I formed the view that while he may not have been deliberately misleading the Court, unless a particular fact or matter was corroborated by independent evidence, the plaintiff’s version of events could not be relied upon.
Compensable injury
68 The details and occurrence of the incident are not in dispute.
69 Having considered all of the medical evidence from both sides, I am not satisfied that as a result of the accident, the plaintiff has suffered any physical injury over and above that which from which he suffered prior to the accident. I have reached this conclusion because:
(a) on the basis of what he has told various doctors, I am not satisfied that the plaintiff has any present lumbar spine symptoms, and certainly not any symptoms that are additional to those which were present prior to the accident, namely sharp pain which is intermittent and only present with quick bending forward;
(b) taking into account:
(i) the medical records concerning the plaintiff’s presentation prior to the accident, in particular taking account of the serious state of the pre-accident injury to the right shoulder which was clearly present only days prior to the accident; and
(ii) the extent of the ongoing treatment and pain relief that was required for that injury prior to the accident;
I am not satisfied that the plaintiff’s present right shoulder symptoms were caused by the accident; and
(c) should it be relevant to consider, on the basis of all of the medical records, the opinions of the various doctors, the late onset of the symptoms and the plaintiff’s inability to give any credible history which links the onset of the left shoulder symptoms to the accident, I am not satisfied that the plaintiff’s present left shoulder symptoms are causally related to the accident.
70 Given the plaintiff’s extensive pre-existing psychiatric history, I am unable, on the evidence before me, to be satisfied that any consequences of the Mild Chronic Adjustment Disorder with Depressed Mood from which he suffers, are either additional to the consequences of his pre-accident mental disturbance or disorder, or caused by the accident. This is especially so when one takes into account the plaintiff’s own recent communications to various doctors, for example saying in 2018 that he was “happy and content” to Associate Professor Doherty and in 2019 to Dr Ingram, that while he had “felt down at times,” he had “generally been happy with his life”.
71 Having considered all of the medical evidence from both sides, I am satisfied that as a result of the accident, the plaintiff has developed an aggravation of his pre-existing mental disturbance or disorder, in the form of the onset of mild symptoms of post-traumatic stress, namely:
(a) intermittent flashbacks related to the accident;
(b) ruminating on the accident when he wakes from pain at night time;
(c) avoiding thinking about the accident;
(d) avoiding travelling through the scene of the accident; and
(e) experiencing chills down his spine when he sees a speeding vehicle.
72 Based on the plaintiff’s own evidence, I do not accept that the plaintiff suffers any residual difficulties with driving as a result of the accident.
Is the compensable injury permanent for the purposes of the Act?
73 Having considered the relevant reports from Associate Professor Doherty,[170] and Dr Ingram,[171] I find that the plaintiff is likely to continue to suffer from the consequences of the accident set out above, for the foreseeable future. Given this, I find that the mild symptoms of post-traumatic stress experienced by the plaintiff as a result of the accident, are permanent for the purpose of the Act.
[170]Exhibit D1, page 12
[171]Exhibit P1, page 190
Are the consequences to the plaintiff of the accident “severe?”
74 Having had regard to all of the relevant evidence, I find that prior to the accident, the plaintiff suffered from a serious mental illness and substance abuse disorder which severely impacted his life. These impacts included restricting his ability to engage in employment, to exercise and to have an active social life. I find that the plaintiff suffered from anxiety, depression, irritability and anger issues, as well as extreme lethargy. He also experienced regular panic attacks. On occasion, the plaintiff also presented with symptoms of psychosis and it was postulated that he suffered from schizophrenia.
75 I find that as a result of these pre-accident restrictions, the plaintiff gained approximately 40 kilograms of weight prior to the accident and developed Type 2 diabetes. The plaintiff’s pre-accident medical issues impacted his ability to develop and maintain intimate relationships.
76 I find that the plaintiff was taking strong analgesic medication prior to the accident for his unresolved right shoulder injury, including Panadeine Forte and Endone. I find that by reason of the injuries to his right wrist and shoulder sustained when he fell off a ladder prior to the accident, the plaintiff had been unable to go fishing for some times prior to the accident.
77 I find that to the extent that the plaintiff now suffers from consequences which were not present prior to the accident, such as interrupted sleep, these issues are consequent upon the pre-existing injury to the right shoulder and lumbar spine and the pain arising therefrom, rather than being in any way related to the accident. I find that the plaintiff no longer suffers from nightmares, where he wakes with heart palpitations and sweating, as a result of the accident.
78 I find that to the extent that the plaintiff’s social life has declined at all, that has occurred because of his responsibilities as a carer to his mother.
79 I find that he breakdown of the plaintiff’s relationship to Crystal was not related to the accident.
80 Lastly, I find that the plaintiff has lost a considerable amount of weight since the accident.
81 In those circumstances, I find that the consequences of the aggravation of the pre-existing mental disturbance or disorder from which the plaintiff presently suffers as a result of the accident, namely the experience of the mild features of post-traumatic stress as set out above, could not fairly be described as “severe” or more than very considerable.
Conclusion
82 In those circumstances, I am unable to be satisfied that as a consequence of the accident which occurred on 19 December 2014, the plaintiff has suffered a “serious injury” as that term is defined in the Act. The application is refused.
83 I will hear the parties on the question of costs.
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