Devine v Transport Accident Commission

[2015] VCC 640

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-13-05052

SEAN DEVINE (by way of his Litigation Guardian SHARON DEVINE)	Plaintiff
V
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 March 2015
DATE OF JUDGMENT:	20 May 2015
CASE MAY BE CITED AS:	Devine v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 640

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Damages – transport accident – serious injury – psychiatric impairment

Legislation Cited:      Transport Accident Act 1986, s93(4)(d)

Cases Cited:            Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis (1998) 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dordev v Cowan & Ors [2006] VSCA 254; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260.

Judgment:                 Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell QC with Ms R Dal Pra	Slater & Gordon
For the Defendant	Mr S O’Meara QC with Ms B Myers	Solicitor for the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies 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 (“the accident”) which occurred on 27 December 2006 (“the said date”).

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       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, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries & Anor v Poljak.[1]

[1][1992] 2 VR 129 at 140-1

4       In addition to being serious, the impairment must be long term.

5       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(c) – “a severe psychiatric impairment”. 

6       The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “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”.

[2][1998] 3 VR 833

[3](1995) 21 MVR 314

7       Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

[4]Mobilio v Balliotis (supra)

8       The plaintiff swore two affidavits and he was cross-examined.  The plaintiff also relied on an affidavit sworn by his mother on 18 February 2015.  Both parties relied on medical reports and other material which was tendered in evidence.

The Plaintiff’s evidence

9       The plaintiff is aged twenty, having been born in October 1994.  He is in receipt of a Disability Support Pension and lives at home with his parents and siblings.

10      The plaintiff has been told he saw a psychologist when he was about ten or eleven.  He could not recall doing so.  He could not recall being referred to North West Mental Health (“NWMH”).[5]

[5]Transcript (“T”) 93

11      On the said date, when aged twelve, the plaintiff was thrown off his bike and his right foot became trapped under another car’s front tyre.  The driver of that vehicle got out in a panic and another person got into the car and reversed it off the plaintiff’s right foot (“the accident”). 

12      The plaintiff was taken by ambulance to The Royal Children’s Hospital, where he had x‑rays which revealed fractured bones in his ankle.  He was an inpatient for two days, during which time he had surgery. 

13      In November 2007, the plaintiff had a further operation on his right ankle when a screw was inserted because one of the bones was not growing properly.

14      Initially, the police wrongly blamed the plaintiff for the accident.  He was upset, as he felt he was unfairly treated by them. 

15      At the time of the accident, the plaintiff was on holidays and had just completed Grade 6.  He was about to commence secondary school at Hume Central Secondary College.  He had been doing okay at school and he enjoyed it. He was good at English. He was a normal kid with friends and he was happy.

16      When the plaintiff looks back at the years before the accident, he thinks he was doing “okay”.  He also believes he went “all right” at primary school.  In fact, shortly before the accident, he had completed the orientation for his first year at high school and had been awarded a scholarship.[6]

[6]T120

17      Since the accident, things have gone downhill.  The plaintiff’s personality changed and he became angry and difficult.  His schoolwork declined and he got into trouble at school and lost motivation.

18      Having been a good kid before the accident, the plaintiff then “just went to a c…”. He just got angry with his family, teachers, peers and friends.  This happened a couple of weeks after the accident.[7]

[7]T82

19      In cross-examination, the plaintiff agreed his early Year 7 reports did not sound like he was angry and difficult at school.[8]  He agreed he chose not to keep up with work.[9]  The good report entries were all surprising to him because he thought he was a bad kid after the accident[10] – that was what his mother told him.[11]

[8]T84

[9]T85

[10]T86

[11]T87

20      By the second semester of Year 9, the plaintiff agreed he was not doing much work at all and he was just mucking around and he wanted to leave school.[12]  He agreed the report entries read to him did not really show there had really been a personality change.[13] 

[12]T89

[13]T90

21      It would come as a surprise to the plaintiff that he was okay at school for a couple of years after the accident because he had always thought it was not like that at all.[14] 

[14]T98

22      After the accident, the plaintiff started to have flashbacks and repeated dreams of seeing himself on his bike and the car hitting him.  He felt panicky and nervous crossing roads, and also became very frustrated and angry and took that out physically on his family. 

23      From February to June 2007, the plaintiff attended a psychologist, Dr Evers. He thought she was “talking bull crap” to him, just talking about the football.[15]  He told her he was not having dreams so she would let him go.  He told her his siblings were teasing him about the accident and calling him “hoppy”.[16]  He also told her that there was not as much fighting with his family before the accident.[17]

[15]T79

[16]T80

[17]T92

24      In May 2008, the plaintiff was suspended from school for fighting with a boy who had been teasing him following the accident.[18] 

[18]T91

25      In October 2008, the plaintiff received treatment from a psychologist, Dr Mollica, who diagnosed Post-Traumatic Stress Disorder (“PTSD”) and prescribed Fluoxetine. 

26      In about December 2009, the plaintiff tried to commit suicide by putting a belt around his back and pulling it tightly.  However, his parents got to him and stopped him from suiciding.  About two weeks later, he had an episode where he kicked in a wall, and the police were called.

27      In January 2010, the plaintiff started seeing a psychologist, Ms Toohey.

28      In April 2010, the plaintiff commenced treatment with Orygen Youth Health (“Orygen”).  He was then hearing voices and felt he was being watched by cameras.  He felt his schoolmates were talking about him.  He had problems sleeping and he was not eating properly.  He could see no point in life and wanted to kill himself.  He was started on Quetiapine, which made him a bit calmer and helped him with his sleeping. 

29      The plaintiff had to leave school at the end of 2010 because of his behaviour.  He returned to repeat Year 10 in 2011 but dropped out in April that year. 

Facebook

30      The plaintiff was cross-examined at length about numerous Facebook entries he made between August 2010 and September 2011. 

31      The plaintiff mentioned that he missed his two deceased aunts a lot.  That was not one of the reasons he was worried about death.  He also missed his grandfather, for whom he expressed his love by having his name tattooed on his arm.  The death of his grandfather had not affected him.  The tattoo was called ‘respect’.[19]

[19]T36

32      There were a number of references to the plaintiff bashing people or being bashed himself.  Whilst he said he was going to “stomp on someone’s head”, he would not do so because he did not want a criminal record.

33      Even though the plaintiff talked about bashing people, he did not bash them.[20] He put things on Facebook just out of anger, even if he knew someone he invited to have a fight would not read it.[21]

[20]T35

[21]T39

34      The plaintiff does not still think about when he was bashed in 2008.  It was a frightening incident which he thought about for a week or two.  All he thought at the time was why it was him.[22]  

[22]T50

35      The plaintiff agreed at times, he wrote “laugh out loud” when it was a joke.[23]  He put things on Facebook out of anger that he did not intend, or he knew people would not see.[24] 

[23]T42

[24]T43

36      The plaintiff denied he was serious when he posted that if a kid wanted him he could come and get it.  The plaintiff would try and sort out the issue first.

37      The plaintiff could not remember an incident where he was involved in bashing a man in the City and nine police cars attended.  It was four years ago.[25] 

[25]T65

38      The plaintiff agreed he was chased by people with machetes who were connected with a girl he knew.[26]  This was not something he would tell Dr Horsley about.[27]

[26]T59

[27]T75

39      The plaintiff was mucking around and joking when he asked on New Year’s Eve who wanted to go and cause trouble.  He did not really go out at night and cause trouble, probably once every blue moon, every three or six months, just being idiots with his friends, egging houses, clapping his hands at people on the street.[28]  He was banned from the Broadmeadows Shopping Centre.[29] 

[28]T37

[29]T33

40      The plaintiff agreed he said he hated it when people said “You are going to kill yourself one day doing what you are doing – always out late, playing video games and talking on Facebook”.  He only said to his friends and people he knew that “We are only living to die, so go out and have fun, enjoy yourself”.  That was him back then.  He did not know why he said it.[30]  Even though he did not use a ‘smiley’ symbol, he was only joking.[31] 

[30]T51

[31]T53

41      These Facebook entries were back when the plaintiff “was stupid”.  At that time, he said that “If you don’t like the person I am, well I guess I’m not changing for no one”.  He no longer thinks like that and he has changed in his ways.

42      The plaintiff asked why should he put on Facebook how he feels about the accident and make people feel sorry for him?[32]  The accident was affecting him, although he could go down the shops and be out in the community at that time but at Christmas in 2010, he went to kill himself. 

[32]T38

43      The plaintiff denied he was then leaving the house all the time.[33]  He was regularly out at night, not regularly in cars, regularly at the station and he may have been to nightclubs once or twice.  He was then visiting his friends and hanging out with them.[34] 

[33]T73

[34]T74

44      The plaintiff agreed the Facebook entries showed he could pretty much do whatever he wanted to whenever he felt like it and that was the position then but not now.  He does not do what he wants now. 

45      It is now different, as the plaintiff woke up to himself and he woke up to the bad stuff.  He can go out now if he wants to but he gets paranoid, thinks people are going to bash him or are watching him.  He does not know, just a thought in his head. [35]

[35]T78

46      The plaintiff agreed some entries suggested he was then not scared of anyone, not really, but he is now.[36]  He stopped hanging around with the group when he knew they were “talking bullshit”.  They just went their own way.  They were not his true friends.[37] 

[36]T57

[37]T58

47      The plaintiff got away from all the bad stuff, all the bad people and just focussed on himself.[38]  He stopped being friends with them as they were idiots.[39]

[38]T60

[39]T69

48      The plaintiff agreed there were negative comments about school on his return in early 2010 and it was boring.[40]  He was sarcastic when he was saying that he listened to the teachers in class and did his homework and did not backchat.  The idea was for people to like his posts.  That was an actual joke.[41]

[40]T41

[41]T54

49      The plaintiff was joking when he posted he had never smoked weed, smoked a cigarette, drunk alcohol or broken the law.[42]

[42]T67

50      All the things on the plaintiff’s Facebook are not accurate.  He put them on because he just did anything because he was an idiot and immature and he just made up anything.[43]

[43]T122

51      Why would the plaintiff put anything about dreams on Facebook?[44]  He would not put these type of things on Facebook, “because it is none of their business what I go through”.[45] 

[44]T70

[45]T73

52      At Christmas 2011, the plaintiff had to be stopped from killing himself by jumping off a bridge over the freeway.[46]  He could recall a problem with shortness of breath when he attended Northern Hospital after this suicide attempt.[47]

[46]T76

[47]T77

53      As of October 2012, the plaintiff deposed that every Christmas he was more anxious, more aggressive and heard more voices, became more depressed in mood and felt more suicidal.

54      The plaintiff then continued to feel suicidal and depressed and continued to hear voices which told him to kill himself.  He was stressed easily.  He continued to attend Orygen and took Olanzapine and Lexam medication.  He had been advised he suffered from PTSD and a Psychotic Disorder caused by the accident. 

55      In his second affidavit sworn 18 February 2015, the plaintiff stated his condition had generally deteriorated since his first affidavit.  Since October 2012, he had continued to suffer very bad psychological problems as earlier described; however, he believed the severity of those problems had generally become worse over the last two years or so.

56      The plaintiff has advised a lot of doctors and counsellors about the sort of problems he continues to suffer, especially the worry and fear, nervousness and panic.  He has also told them about the depression he suffers and the nightmares he sometimes experiences and the voices he still hears in his head from time to time that sometimes tell him what to do.

57      The situation got to the point recently when in December 2014, VCAT appointed the plaintiff’s mother his administrator. 

Recent treatment

58      When the plaintiff turned eighteen in October 2012, he had to stop going to Orygen for treatment; however, his treatment has continued since that time. 

59      In the first half of 2013, the plaintiff was treated by psychiatrist, Dr Prabhakaren, at NWMH in Broadmeadows; however, when he moved, the plaintiff began seeing counsellors at the Dianella Mental Health Service in about the second half of 2013.  His original case manager was Jennifer Harding.  When she left Dianella, Michael took over her role.

60      The plaintiff also sees a psychiatrist, Dr Lokesh Sekharan, at NWMH, who prescribes his medication.  The plaintiff attends NWMH on an ‘as needs’ basis, which can be once a week or a fortnight, or a month, depending on how he is going.  He also sees his general practitioner at Broadmeadows Medical Centre.

61      The plaintiff was having good and bad days in August last year.  He agreed, as Dr Sekharan had recorded, his mood had been better,[48] he had been watching a fair bit of sport at home and he went shopping with his mother.  He agreed sometimes he could manage his anxiety symptoms but there were a lot of times he was able to manage it because he held it in.[49]

[48]T22

[49]T23

62      The plaintiff thought the suicidal thoughts, depression and anxiety had got worse.  Sometimes he goes out or sometimes he just stays in because he is anxious, gets worried and has feelings in the chest.

63      When the plaintiff goes out, he gets worried, panics and he runs home.  He did not know what brought the panic on and it happens about three times a day.[50]  He is also worried about getting run over again and he worries about death.[51]

[50]T15

[51]T31

64      The plaintiff has suicidal thoughts about once or twice a week when he is at home and when he starts to think.  He just thinks about the accident and getting the blame for it.  He is depressed all the time.  He gets grumpy and angry and will not talk to anyone.  He was not like that before the accident.  He was a good kid, doing well at school.   He had fights with his brothers and sisters here and there but that was about it.   He was not grumpy at home.[52]

[52]T16

65      The plaintiff then said his suicidal thoughts come and go.  He did not tell doctors he was not depressed and did not have suicidal thoughts.  He did not speak to his current case manager, Michael; he kept it all in.  If he was asked by Michael if he was depressed, he did not tell Michael that he was.  He did not like talking about his problems as they were his problems.[53] 

[53]T24

66      The plaintiff agreed it was different talking in Court.  He agreed it was good if someone was treating him to tell them what the position was so they could help.  The plaintiff agreed he still lied to Michael that he was good, but in fact he was bad.[54] 

[54]T24

67      When it was suggested to the plaintiff that in June last year he was not raising difficulties with Michael, the plaintiff said he would rather hold it in.[55]  The plaintiff agreed his mood goes up and down.  He talks to Michael sometimes but the plaintiff holds it in because he is in a grumpy mood.[56]

[55]T20

[56]T25

68      The plaintiff thought he was really trying to get better and he was doing that by going for a walk down to the shop with his mum and his brother or his mate, or going to see a football match.[57]

[57]T24

69      Later, in cross-examination, the plaintiff said he has bad dreams once a month.   He has flashbacks when he is sleeping – like dreams.  He rarely thinks of suicide.  He has paranoid thoughts sometimes but not all the time –  thoughts that people are coming to get him.[58]

[58]T72

70      When it was suggested to the plaintiff that he was much better when he saw his doctors than he described in his recent affidavit, the plaintiff said some days he was good, some days he is not.[59] 

[59]T113

71      In re-examination, the plaintiff said that in the last six months or so, he has had suicidal thoughts once or twice a month but he just lets them go away.[60] He still has thoughts about getting run over again and death, about once a week.[61]

[60]T121

[61]T122

72      The plaintiff’s sleep is “shit, not good”.  Before the accident, he shared a room with his three brothers.  “It was fun sometimes, sometimes they had fights.”[62]

[62]T122

73      The plaintiff stopped going out in about 2013.  He did not know why there was a big change, it just came out of nowhere and he could not explain it.  He denied it had anything to do with his Court case.  He explained that things change in time, like going out.[63]

[63]T75

74      Michael wanted the plaintiff to go to Rocket Mental Health Rehabilitation.[64]  The plaintiff told him he did not want to have to do the residential program for twelve months because he had not been away from his family before and he did not like trying new things. Also kids at Rocket Mental Health Rehabilitation had drug and alcohol problems.[65]  

[64]T26

[65]T109

75      The plaintiff was happy to consider rehabilitation and have a look at it but it was not for him.  He checked it out.  The kids there were all smoking and the plaintiff did not want to be around that kind of lifestyle.  He wanted to get better.[66]

[66]T27

76      The plaintiff’s medication was recently increased.  His mother told him that he now takes 360 milligrams of the antidepressant, Venlafaxine, up from 300 milligrams a day.  He also takes 10 milligrams of Zyprexa, an anti-psychotic medication, also known as Olanzapine. 

77      The medication the plaintiff takes at night makes him tired and the one he one he takes during the day makes him feel “a bit sick in the gut”.[67]

[67]T21

78      The increase in medication about a month ago has not really made any difference.  The plaintiff does not really think his condition has improved in the last twelve months. [68] 

[68]T14

79      The plaintiff does not do much these days.  He sits at home a lot and listens to music or watches television in his bedroom.  He also likes watching the cricket and he supports the Bulldogs in the AFL.  He sometimes goes out with friends, but not very often.  The plaintiff had only been once to a nightclub, and he went to the E J Whitten legends game.

80      The plaintiff agreed that most of the time it was good for him to go out but he got scared when he did so.  If he stays at home, he stays out of trouble.[69]

[69]T26

81      The plaintiff agreed he could not be bothered cooking at home because there were too many people to cook for and his parents normally cooked.  They had been doing everything for him for years, and that is still the case.[70]  He agreed he does not have the motivation to cook because he knew his mother would do it.[71]

[70]T22

[71]T22

82      The plaintiff agreed that one of the reasons he would not go and do things was because his parents were doing everything at home.  Another reason was he could not be bothered.[72]

[72]T100

83      Currently, the plaintiff does not go to the house much by himself because he is just paranoid.  He goes to the shops with his mum or little brother and spends the rest of the time at home watching sports.  He no longer goes into the City with friends or hangs out at the station. 

84      The plaintiff agreed he can go out and do things now.[73]  Sometimes he has problems with paranoia.  Sometimes he is good; sometimes he is not.  He has problems with anxiety, even though that is not recorded in his treatment notes.

[73]T116

85      The plaintiff denied telling Orygen there was an upcoming Court case with stated compensation to be over a million and that he was going to buy a house with his damages.  He would rather get better than get money.  He has got to take small steps first, like going out and learning how to stay out, instead of coming home all the time.[74]

[74]T28

86      The plaintiff denied being preoccupied with his upcoming Court case and he has been doing stuff, overthinking.  He has not denied discussing possible gain from being sick.  He told his caseworker, Michael, that he would rather get better than get money, his health is more important.[75]

[75]T29

87      The plaintiff disagreed that the reason he did not take steps to get better was because his Court case might not be worth as much.  It was worth nothing; his health was more important.  He did not know why he would not go and do things suggested if that was the case.[76]

[76]T101

88      The plaintiff did not remember saying to Michael, after the Court case it was his “time to shine” but he might have. He did say he could not get a job because he had too many appointments.  He denied he said he deserved a payout, but then said he could not remember saying so.[77]

[77]T104

89      The plaintiff agreed he told Dr Sekharan in 2012 he was worried that he would be bashed if he went out.[78]  He started to worry about being bashed in 2010.  The plaintiff could not remember but had bashed someone in 2009-2010.[79]

[78]T30

[79]T32

90      The plaintiff agreed there was a suggestion he would no longer be involved with NWMH.  He thought he was going to be treated by a psychologist and a psychiatrist until he was discharged.[80]  He was now happy to see Dr Kay Evers, as times had changed now, unlike in 2007.[81]

[80]T110

[81]T111

Work

91      The plaintiff was offered a job as a bricklayer’s apprentice by a man he met at the station.  However, he lasted only a day in that job as he got into a fight with his employer, who threatened to hit him.  The plaintiff has not looked for work since.[82] 

[82]T17

92      Sometimes the plaintiff would like to go back to work.  Most of the time he does not feel like it.  He just gets a thought in his head that he wants to do something and then he does not follow through with it.  He did not know why that was the case.  He was anxious about whether he would stuff up and what was going to happen. 

93      The plaintiff agreed he would only know how he could cope with work if he tried.  He had not tried but he just worried about it and “it got to his head”.[83]

[83]T18

94      Michael put the warehousing job into the plaintiff’s head because he told him he had to do something.  The plaintiff did not show him the details of a Certificate III in Warehouse Operations.  He did not show him anything.  The plaintiff told him the course looked alright but did not think he would be able to follow through with it.[84]

[84]T19

95      The plaintiff agreed he had plenty of time on his hands.  When it was suggested he was not interested in working, he said he did not know.[85] 

[85]T79

96      The plaintiff does not think security work is for him because the job is rough.  He just went off the idea of cooking work although he could not explain why.[86]

[86]T108

97      The plaintiff agreed that Michael had in mind he might be able to work, as did Dr Sekharan.  He talked to the plaintiff about it but he had not gone ahead with it.[87]

[87]T99

98      In re-examination, the plaintiff said he would like to be working.  His reading is alright but his writing is shocking.  Only Michael has talked to him about training since leaving school.  The plaintiff does not know what is involved in a résumé or how to do one.[88]

[88]T120

Lay evidence

99      The plaintiff’s mother and litigation guardian, Sharon Devine, swore an affidavit on 18 February 2015.  She married the plaintiff’s father in 1992 and they have six children, the plaintiff being the third oldest. 

100     The plaintiff was generally a normal little boy in primary school.  There were fights and arguments in the large family from time to time when the children were growing up.

101     Whilst she has been advised the medical records show she sought assistance for the plaintiff from a psychologist when he was about ten, Mrs Devine did not recall any particularly significant problems with the plaintiff during primary school years.  She recalled he argued and fought with his brothers but they all did to some degree.  As such, she did not specifically recall seeking psychological help for the plaintiff.  She may well have done so, but did not recall it.

102     Mrs Devine believed any problems which existed at that time must have been insignificant compared to the plaintiff’s psychological problems since the accident.

103     Shortly before the accident, the plaintiff had just finished Grade 6.  He was a good student and did well at school.  He was even awarded a scholarship for his first two years at Broadmeadows Secondary College.

104     As the plaintiff’s mother, Mrs Devine certainly observed a distinct change for the worse in his behaviour and psychological condition following the accident.  He became angry, short tempered, anxious and, after a period of time, paranoid.  He was very worried that another accident would occur or that someone or something would harm him in some way.  He slept poorly and regularly woke in the middle of the night screaming.  He said he was having bad dreams about the accident and about being hurt.

105     Ms Devine believes that the plaintiff also became very depressed and miserable following the accident and even these days, it is not unusual for her to find him at home alone in his room crying.

106     Mrs Devine believes that the plaintiff has also become scared to go out.  He still manages to get out of the house with particular friends from time to time; however, he still has trouble socialising a lot.

107     These days, the plaintiff generally sleeps a lot and sometimes she has trouble getting him out of bed until the afternoon.  Then, when he does go out, she sometimes observes him to be nervous around traffic and on other occasions he has told her he is afraid he might get hurt again.

108     Mrs Devine is also aware the plaintiff has sometimes heard voices in his head which tell him to harm himself or to harm others.

109     In the past two years or so, she believes that, if anything, the plaintiff’s condition has become worse, leading to her being appointed his administrator by VCAT in December last year.

110     The plaintiff still receives a lot of treatment.  He sees counsellors at Dianella, as well as a psychiatrist, Dr Lokesh Sekharan.  He also visits his general practitioner at Broadmeadows Medical Centre and continues to take a lot of medication.

111     It is difficult for her to fully describe all the ways in which the plaintiff has changed following the accident.  As his mother, she has observed him deteriorate over the course of the last eight years or so, to the point where she thinks he is now very ill.

Year 6 school report

112     The plaintiff’s Grade 6 school report from Meadowbank Primary School set out that the plaintiff had made excellent progress in all subjects that year, had worked hard and focused hard on his work.  He was very polite and courteous.  He had always treated others with respect.  He was taking responsibility for his own learning and would shift rather than be distracted by others around him.  It was noted that the plaintiff was a pleasure to teach as he was a motivated and enthusiastic student who was now ready to set his own learning goals so as to extend himself.  He was congratulated on his performance.

113     In his December 2006 report, it was noted that the plaintiff had been a pleasure to teach that year and had taken responsibility for his own learning by completing all the set work, both at home and in class, and improving his presentation standards to the best of his ability.  It was noted that the plaintiff was a polite, well-spoken student who had always made a valuable contribution to the class activities and discussions.  He had been chosen to represent the school in sports and was a valuable team member in the cricket and footy teams.  He had always treated other students with respect and was a well-managed student.

114     The principal concluded that it had been a very good year for the plaintiff and he had especially enjoyed watching the way the plaintiff had matured and his attitude toward work that year and wished him well for the next year but knew that he would do well.

Medical evidence

115     The plaintiff attended psychologist, Dr Evers, from February to June 2007.

116     Dr Evers noted the plaintiff experienced a traumatic event in which he believed he may have been killed and in which he was seriously injured.  His response was of horror and helplessness and he panicked and screamed frantically.

117     The plaintiff experienced many symptoms associated with the event and he had periods of derealisation and recalled experiencing dreams of watching the accident occur.  This was often re-experienced by recurrent thought streams and flashbacks.  The plaintiff exhibited marked avoidance of thoughts. 

118     This also resulted in a drastic change of lifestyle subsequent to the event, where the plaintiff was unable to participate in usual activities, especially sport, was absent from school, was dependent for personal care and was teased by siblings and others, and therefore tried to spend a lot of time at home alone.  He had symptoms of sleep difficulty, was hypervigilant, with an exaggerated startle response.  Those symptoms caused clinically significant impairment of daily living, leading to a diagnosis of PTSD. 

119     The prognosis at the time of last presentation was good.  Dr Evers noted the plaintiff’s symptoms were resolving and his attitude was positive.

120     The plaintiff first saw Dr Stuart Anderson, consultant paediatrician, on 14 July 2008, seeing him for a total of four sessions until 21 August 2008. 

121     When Dr Anderson saw the plaintiff a year and a half after the accident, there was concern he seemed angry and bad tempered.  The plaintiff and his mother felt his temper and behaviour had deteriorated following the accident, with frequent conflicts with his brothers at home, and also the plaintiff was getting into trouble at school.

122     Dr Anderson was not able to independently verify whether there had indeed been a change in behaviour corresponding to the accident. 

123     Dr Anderson could not confirm that the plaintiff’s behavioural difficulties indeed related to the accident.  His involvement with the plaintiff was limited to providing some strategies to deal with anger and temper.

124     The plaintiff was seen by Dr Mollica at the Royal Children’s Hospital Mental Health Service for a psychological assessment on 17 and 20 March 2009 following longstanding difficulties with his emotions and behaviour that affected his functioning at home and at school.  He was then fourteen. 

125     Dr Mollica noted the plaintiff had a challenging transition to secondary school after being involved in a road accident during the preceding school holidays, with his parents feeling he had become more irritable, oppositional and defiant since then.

126     The aim of the assessment was to gain a thorough understanding of the plaintiff’s cognitive strengths and difficulties to assess his academic levels and to determine whether he met the criteria for ADHD.

127     Dr Mollica noted the plaintiff demonstrated low-average abilities and verbal and non-verbal reasoning.  His processing speed was also within the low-average range.  His basic memory abilities were within average and his performance on an additional test of visuospatial processing indicated difficulty with organisation and planning of visuospatial information.  He demonstrated sound academic skills in reading and spelling and was below average for more complex tasks of sentence, comprehension and written maths. 

128     Dr Mollica noted the plaintiff was likely to find more abstract or lengthy tasks to be of greater challenge and therefore may respond impulsively or be easily distracted.

129     Dr Mollica noted a number of difficulties with emotions and behaviours were highlighted, including inattention, high activity levels and oppositional defiant behaviour.  Those difficulties were reported to have commenced in recent years and were related to changes in his mood and wellbeing that followed the accident.

130     Dr Mollica noted the trauma from the accident was understood to have affected the plaintiff’s mood and sense of wellbeing.  This in turn had impacted on his concentration and motivation for school, interpersonal relationships and a tendency to react quickly and aggressively.  Given an absence of reported behavioural problems in early childhood, she thought the plaintiff did not meet the criteria for ADHD but he experienced symptoms of PTSD.

131     Dr Mollica recommended a behaviour management plan at school, encouragement of the involvement of the plaintiff’s parents and continuing use of techniques learnt at the Mental Health Service.

132     Dr Mollica concluded the plaintiff presented as a likeable, cooperative young man who progressed through primary school with sound academic functioning.  He had realistic career aspirations in terms of considering an apprenticeship and was encouraged to focus on completing his work and managing his aggression at school.

133     Dr Hamdan has been the plaintiff’s general practitioner at Broadmeadows Medical Centre since 15 June 2009. 

134     Dr Hamdan noted in his October 2010 report that after the accident, the plaintiff’s behaviour changed, becoming angry, more anxious and more sad.  He had been more depressed and that was affecting his school performance and also his relationships with family and friends. 

135     Dr Hamdan noted that the plaintiff had been seen by the Royal Children’s Hospital several times with acute agitation and disruptive behaviour.  He had also been seen by a psychologist with multiple sessions, with minimal improvement, with worsening anxiety and insomnia.  That was affecting the plaintiff’s ability and also affecting his future work opportunities and future daily living activities.

136     Dr Hamdan reported again in March 2015, noting two visits in 2009, nine in 2010, one in 2011, two in 2013 and the most recent on 5 March 2015.

137     Most of the visits were related to Anxiety and Depression, as well as PTSD related to the accident.  The plaintiff looked sad and depressed at all consultations.

138     Dr Hamdan noted that, over the years, the plaintiff was diagnosed with Depression, Generalised Anxiety and PTSD.  He was treated with counselling and using different kinds of anti-depressants and anti-anxiety medication.

139     Dr Hamdan thought the plaintiff’s current, as well as future treatment should include psychological counselling, as well as anti-depressant medication.  He noted the referrals to various organisations. 

140     Dr Hamdan thought the plaintiff was currently suffering from the same psychological problem.  The prognosis was not promising, especially as he had had little improvement over the last few years.

141     In Dr Hamdan’s view, currently, the plaintiff had no capacity to perform work-related duties.  It was not known when in the future he would be able to perform any work duties.  It was not clear about the course of his illness for the future.

142     The plaintiff was referred by Dr Hamdan for counselling under the Better Access to Mental Health Scheme on 30 December 2009.  He was seen by Monique Toohey, senior consultant psychologist, for six counselling sessions between 6 January 2010 and 15 February 2010.

143     Ms Toohey thought, whilst in therapy, the plaintiff presented with PTSD symptoms but did not meet the full criteria for the disorder.

144     In summary, Ms Toohey thought the plaintiff, then aged fifteen, demonstrated moderate impairment to his physical, psychological and educational functioning.  She thought he appeared to have an accurate understanding of the factors that had contributed to his current health situation and was able to repeat the details of his journey with remarkable accuracy of details, suggesting an honest account of his situation.

145     Ms Toohey then expected the trauma of the accident would have an ongoing impact on the plaintiff’s mental health condition, particularly as it had impacted on his ability to function at school, which would then lead to difficulties pursuing a goal-driven career path.  She noted the plaintiff was then hopeful he had overcome his injuries and life would get back to normal after he sought appropriate medical treatment.  However, if this was not the case, she thought the plaintiff would need to modify his current expectations and learn to adapt accordingly.

146     The plaintiff was referred by Dr Hamdan for a neuropsychological assessment at the Learning Difference Centre where he was seen on 24 February 2010 by Dr Ben Deery.

147     Dr Deery did not have any details of the 2005 NWMH psychiatric attendance. The plaintiff’s mother told him that behavioural, personality and academic difficulties had emerged post accident.

148     The plaintiff’s mother reported his behaviour was a major concern and that, since the accident, he had trouble controlling his temper and anger and he acted impulsively without thinking.  His behaviour was oppositional and defiant.  He had low self-esteem.

149     Dr Deery noted the plaintiff presented most noticeably with cognitive difficulties in basic attention, verbal working memory, poor planning organisation of complex visual information, reduced, sustained and divided attention and inhibition difficulties, all of which would be best explained by a diagnosis of PTSD from Dr Mollica.  That may also best explain reports and presentation of somewhat pressured speech at times.  It was noted the plaintiff was also being treated for depression which could also have a significant impact on his cognitive, academic and social behavioural functioning.

150     Dr Deery thought there appeared little evidence the plaintiff sustained a major head injury.  Despite the plaintiff’s cognitive mood and behavioural functioning difficulties not appearing to be the direct result of that insult, they appeared to be likely related to his diagnosed PTSD and poor adjustment as a result of the accident.

151     Dr Deery thought that a review of past school reports would appear to support the description of a previously hardworking, well-mannered and conscientious student with poor behaviour and grades arising in secondary school.

152     The plaintiff’s mother reported that the plaintiff’s behaviour was a major concern and, since the accident, he had had trouble controlling his anger temper, acted impulsively without thinking, had rapid quick speech which was hard to understand, was restless, could lie and swear, was oppositional and defiant, lacked respect for others, talked back to adults, failed to complete his schoolwork and failed to comply with house and family rules.  She felt his personality had changed and he was very moody.

153     The plaintiff was then on suspension from school.  In the previous year, he had missed 80 days of school last year due to refusal, truancy, appointments and suspensions.

154     Dr Deery thought the plaintiff’s difficulties would appear to be best explained by Dr Mollica’s diagnosis of PTSD.  He noted the plaintiff was also being treated for Depression which could have a significant impact on his cognitive, academic, social and behavioural functioning.

155     Based on the information provided and on the police statements seen, there appeared little evidence the plaintiff sustained a major head injury likely to cause a significant brain injury resulting in cognitive deficits still apparent three years after the accident.

156     Despite the plaintiff’s cognitive mood and behavioural functioning difficulties not appearing to be the direct result of a significant brain insult, Dr Deery thought they appeared to be likely related to his diagnosed PTSD and poor adjustment as a result of the accident.  Therefore, available funding for a psychologist through TAC would support and should likely be the plaintiff’s primary form of treatment in combination with careful medication management.

157     The plaintiff was under the care of the Mental Health Service of the Royal Children’s Hospital from 9 October 2008 until 7 December 2009, where his case manager and primary clinician was one of the psychologists in the multidisciplinary team.

158     Dr Hines at the Royal Children’s Hospital first met with the plaintiff in May 2012 as at that time, it was considered a trial of medication may be worthwhile to try to improve some behavioural problems that had been reported by his parents and which could possibly have been due to a mood disorder.  It was agreed on that first meeting that a trial of Fluoxetine was worthwhile. 

159     Dr Hines met with the plaintiff and his parents and a primary clinician on four subsequent occasions to monitor his response.  There was not a clear outcome to the trial and the reports from the plaintiff and his parents were somewhat contradictory and confusing.

160     Dr Hines thought the list of possible diagnoses – Chronic Adjustment Disorder with mixed disturbance of conduct and emotions; Oppositional Defiant Disorder; dysthymia; and PTSD – reflected some difficulty in gathering enough reliable information to definitively distinguish between diagnostic categories which overlapped to some extent.

161     The plaintiff has been a patient of NWMH from 16 January 2013 and Dr Prabhakaren, consultant psychiatrist, reported as to his treatment in August 2013.

162     Dr Prabhakaren then noted the plaintiff reported that the symptoms of PTSD had reduced but he suffered from ongoing depressive symptoms and residual auditory hallucinations. The plaintiff was then on Olanzapine and Escitalopram.  He was also engaged with a case manager to focus on rehabilitation goals which included linking with an Outreach worker and working on skills to cope with distress.  Dr Prabhakaren thought the plaintiff needed ongoing treatment which included both medication and psychosocial rehabilitation.

163     Dr Prabhakaren considered the motor vehicle accident and the subsequent surgeries and rehabilitation had made a profound impact on the plaintiff’s life in the sphere of both social and occupational functioning.  Currently, he did not believe the plaintiff had a capacity to do any paid work and the prognosis for the future was uncertain, depending on his level of improvement.

164     Jennifer Harding, community mental worker from Dianella, wrote to the defendant on 29 July 2014.  She advised that the accident had significantly affected the plaintiff’s personality, behaviour and mental state, and significantly affected his ability to live the life he would like to live and a life that a young individual deserved.

165     Dr Sekharan and Dr Drinkwater, psychiatrists from NWMH, reported in March 2015, noting the plaintiff had been under Dr Sekharan’s care at that service since September 2013.

166     They noted the plaintiff had been diagnosed to suffer from Major Depression with psychotic symptoms and PTSD.  He had been reviewed monthly and he presented with residual symptoms characterised by lack of motivation and apathy.  This had been associated with anxiety symptoms which had been non pervasive in nature.

167     Medication was changed to Venlafaxine in August 2013, of which the dose was recently increased.  The dosage of antipsychotic medication had been gradually reduced to 10 milligrams.

168     The plaintiff had been concerned about the Court procedure, which had contributed to his anxiety and progress made by him.

169     Dr Sekharan noted that over the last eighteen months, an attempt had been made to make the plaintiff more functional and deal with his residual symptoms.  He had been referred to the Youth Residential Rehabilitation Program but it had been quite difficult to achieve a sustained period of engagement in the rehabilitation program which was partly contributed to by the lack of motivation.

170     Dr Sekharan noted the plaintiff had some activities of interest, like sport, which he enjoyed watching, and socialising with a few of his friends.  He had been advised to consult a psychologist to deal with his anxiety, in addition to his medication and rehabilitation activities, and if the plaintiff engaged well with these options, he may be in a position to work in the near future.

171     Dr Sekharan thought the plaintiff’s prognosis would also depend on this.  He also felt if the plaintiff engaged in work, that would be therapeutic and it would provide a structure to his day and would improve his motivation.

172     When examined by Dr Sekharan on 19 December 2014, the plaintiff reported he continued to have sadness and lacked motivation.  He spent most of his time at home watching television.  Friends visited him on the weekend.  During the week, he spent most of the time at home, and was occasionally involved in household chores.

173     The plaintiff reported his sleep was disturbed over the last three weeks.  He was not going out much due to flashbacks and exaggerated threat perception that it might happen again.

174     Dr Sekharan noted the plaintiff’s depressive symptoms were not pervasive in nature, and his mood was better when he involved himself in activities he was interested in. He noted the plaintiff’s parents appeared to be frustrated due to his lack of involvement with them and in household chores, and it sometimes appeared that the plaintiff gets some secondary gain being in the sick role.

175     On examination on 23 January 2015, the plaintiff reported he had been feeling low, which was pervasive in nature, partly due to the lack of structure in his daily routine and not planning for the future.  He was also concerned about pseudo hallucinatory experiences and feeling a death wish.  He denied suicidal thoughts or plans.  There was some improvement when he went out with his friends.  The plaintiff’s father was concerned about his lack of motivation, and the plaintiff tended to isolate himself.

176     The plaintiff reported he was experiencing anxiety symptoms when he went out which he described as paranoid thoughts, and his sleep was disturbed at times.

177     Dr Drinkwater, psychiatrist, saw the plaintiff on 20 February 2015.  She then thought he appeared to be very dysfunctional and stayed at home mostly, so he was almost agoraphobic.  He appeared more anxious for some activities than others.  He appeared very dependent on his parents, and there appeared to be a sick role now that was not helpful for his development and independence.  She encouraged the plaintiff to accept a bit of discomfort to be able to make progress, noting he said no to many interventions.

178     Dr Drinkwater thought it not appear that the plaintiff needed their services any more, so transfer to a PP was indicated.  His mother said she would find out from the general practitioner about both psychologists and psychiatrists.

179     Dr Drinkwater pointed out to the plaintiff’s mother that maybe one should focus on the plaintiff’s level of functioning rather than his symptoms, as these seemed to stay operational, but he was functioning at a low level.  The plaintiff was somewhat hesitant.  He seemed to want to keep the status quo.  He seemed to have created a comfortable dependent relationship with his parents which was not helpful for his recovery.  Further, the plaintiff had much secondary gain to remain unwell, both for the Court case and his current position within the family and his sick role.  The plaintiff and his mother were basically put in the picture that discharge was inevitable, and the mother would enquire about appropriate follow-up with a general practitioner.

180     Dr Drinkwater saw the plaintiff on 24 February 2015.  The plaintiff described his symptoms as paranoia, only when he leaves home; depression, which is there every second day; he “feels shit” and shows a slumped posture, and he has suicidal ideation once a fortnight but no intent.  She noted the family appeared to have a lot of secondary gain from the plaintiff’s impairment too, also financial, which may perpetuate this state. 

181     Dr Drinkwater thought there was no psychosis.  Paranoia was better described as situational anxiety, not present on that day.  Insight and judgment were situational, and there appeared to be a lot of secondary gain from the Court case and dependency on parents.  There were suicidal thoughts at times and no intent.  Her impression was large secondary gain issues affecting his presentation.  She thought the plaintiff needed to move on, and a psychologist could help. 

Medico-legal evidence

182     Dr Robert Chazan, psychiatrist, has examined the plaintiff on four occasions and between July 2008 and October 20154 and written a number of reports.

183     On the first examination in July 2008, the plaintiff told Dr Chazan he was injured in the accident. He described having a personality change thereafter. He was angry, difficult to manage and had declining school performance. He was angry with many aspects of the accident.  His mother described defiant behaviour.

184     Dr Chazan noted it appeared after the accident, there were traumatic symptoms but those had given way to personality dysfunction and pervasive anger, much of it misdirected.

185     The plaintiff did not appear observationally depressed.  He told Dr Chazan he was not depressed but was sad or angry.  He could have a few days of being alright but then he would become angry with anything and this would go on for days.  He had no suicidal thoughts. He did not report any intrusive thoughts.  He had no dreams, neither good or bad ones.  He wondered why he was being blamed for the accident.

186     In summary, Dr Chazan thought the session was a normal one, with a boy who probably understood his inner feelings and was capable of conducting himself well but referred to his anger and resentment which he related to the accident.

187     Dr Chazan noted that in the absence of any documentation as to previous psychiatric issues, it had to be taken at face value, the plaintiff was previously a much more positive and well adapted child.  Not only did his mother present his history in this way but his own memories and reported attitudes were consistent with this.

188     Dr Chazan thought the presence of anger and inability to let go of the matter and live life with some perspective probably represented a traumatic process equivalent to a mild PTSD.  The features suggestive of a continuing condition of that nature included irritability, anger, intense preoccupation with aspects of the accident and how it had altered the plaintiff’s self concept and his decline in functioning.  He was abusive to his parents, to whom he still showed affection.  There was a sense of out of place-ness in his behaviours, of uncharacteristic and ill-directed behaviours with underlying emotions not directly expressed.

189     When first seen, the plaintiff, aged thirteen, was still something of a child.  At that stage, Dr Chazan thought changes in character could be simply manifestations of adolescent turmoil.  The only way to know was to wait and see until the plaintiff grew out of those behaviours and attitudes.

190     Dr Chazan then thought the prognosis had to be guarded in spite of the plaintiff’s obvious personality strengths.  Having been through a traumatic experience, he was likely sensitised and more prone to traumatic or depressive responses to future stressors.

191     Dr Chazan then regarded the plaintiff as having a mild PTSD but noted he lacked intrusive thoughts about the accident, that he tended to externalise blame and irritability, anger, intense preoccupation with aspects of the accident and how it altered his self concept and his decline in functioning.  He had obtained no history of difficulties prior to the accident.

192     Dr Chazan re-examined the plaintiff on 5 May 2010.  He noted the plaintiff did not grow out of the personality change but became steadily worse.  In December the previous year, he had an aggressive outburst, during which he put a belt around his neck, and the police were called.  There were further episodes that year, and in April 2009, the plaintiff was accepted by Orygen, with symptoms, as he and his mother reported, which sounded like a brief psychotic episode.

193     Before this occurred, the plaintiff’s family doctor had recognised his depressive status and had started him on Escitalopram and SSRI (Selective Serotonin Reuptake Inhibitor) antidepressant, used in depression and also in anxiety disorders, including PTSD.

194     The plaintiff was then in Year 10 and he had an after school TAFE experience one day a week and hoped to become a motor mechanic.  He was not learning at school and had been in conflict with his teachers, as well as fighting with his peers. The plaintiff’s friends, save for one, had not been wholesome choices.

195     On examination, the plaintiff spoke of dreams of the accident, like a short video of the car coming over his foot.  He said he had not been good but heard voices, did self-harm, had been suicidal and he had bald patches. Voices told him to smash things to kill himself, and that life was not worth it.  Suicidal thoughts had stopped six weeks ago when he attended Orygen.

196     On questioning, the plaintiff said that he thought about the deaths of his two aunties.

197     Although the plaintiff discussed some intense matters, his affect was facile and bland.  It seemed more blunted and distant than the volatile frightening affect that was described.

198     The plaintiff reported ongoing mental problems with the accident and he thought about the accident when he went to sleep. He was depressed because of the accident and he could not be bothered with anything.  He described himself as being paranoid and when he is in front of the class, he thought people were talking about him and cameras were watching him.

199     Dr Chazan noted the plaintiff was appreciative of his medication, which had brought him some relief.  His impression of the plaintiff was a boy with unrelieved traumatic anxiety who had recently had an acute psychotic episode for which he was appropriately treated.

200     Dr Chazan diagnosed PTSD and a brief psychotic episode, possibly a Mood Disorder with acute psychotic features.

201     Dr Chazan thought that the plaintiff’s condition was complex and its origins in terms of the accident alone could be debated. Most likely the plaintiff’s propensity for psychosis was not caused by the accident, although it was highly possible his ongoing PTSD and his level of anxiety somehow reached a peak that was expressed as a paranoid and hallucinatory illness with depressed mood.  He also noted the medication the plaintiff was taking could trigger a manic psychosis.

202     Dr Chazan considered that the plaintiff’s PTSD did not lighten since the previous assessment, but intensified and his behaviour at school and learning deteriorated.

203     Dr Chazan thought the symptoms and signs were consistent with the accident.  Because he could not see any other cause for the psychotic episode and subsequent dysfunctions, he treated it as accident-related in assigning impairment.  He noted that recent episode of psychotic illness was apparently under control.

204     Dr Chazan then thought it difficult to prognosticate a recent onset psychosis.  He noted if the plaintiff remained well as time passed, his treating doctors may reduce his medication and that may reveal that he is essentially well or he might become symptomatic again and need long-term treatment.  On the grounds that since the accident the plaintiff had worsened over the period of years, one could not present an optimistic prognosis.

205     Dr Chazan re-examined the plaintiff, then aged seventeen in February 2012.

206     Dr Chazan noticed since the plaintiff was last seen in 2010, his life had continued in a similar dysfunctional pattern.  Every Christmas, the plaintiff became anxious and his behaviour was more demanding and more aggressive and his psychotic symptoms became worse.  The plaintiff’s mother told Dr Chazan that over the most recent Christmas, the plaintiff had to be stopped from jumping off a bridge.

207     The plaintiff had dropped out of school, lasting only a term in 2010 and 2011.  He met a man at a local train station who offered him a bricklaying apprenticeship in which the plaintiff lasted only a day.

208     Dr Chazan noted the plaintiff occupied himself spending his time with his mates, who formed a gang of sorts.  The plaintiff was proud he knew a lot of people and had many friends in the area.

209     Dr Chazan noted the plaintiff’s brother, Justin’s emergence as a teenager with a conduct disorder.

210     On examination, the plaintiff described depressive mood, not so much in terms of his inner emotions but rather in terms of the hallucinated voices which impelled him to commit suicide.  His mood was flat; his affect was not fully congruent and appeared somewhat facile.

211     The plaintiff reported experiences of anxiety but could not describe them fully.  “I just feel it.  If I have it I just fight it.”

212     No disorder of thought form was directly observed.  The plaintiff’s thinking had a paranoid quality.  He lacked insight and did not question his own stance.  The impression on verbal examination was of poor intellectual functioning.

213     Dr Chazan diagnosed a Psychotic Disorder not otherwise specified, in partial remission.  The differential diagnosis was one of schizophrenia of a paranoid type or a Schizo-Affective Disorder.  However, the plaintiff had been treated with partial success, the residual symptoms and signs primarily comprising hallucinations with a nihilistic content and a paranoid quality.

214     Dr Chazan concluded the plaintiff’s psychotic illness appeared to be causally related to the accident.  That could not be conclusively known, and validly could be argued. The chronology was on the information, namely that the plaintiff was doing well as a child in early adolescence until the accident.  The triggering event was the accident and the intense emotion associated with it.

215     Dr Chazan noted the counterargument was that the plaintiff, at the age of onset of psychotic illness, may well have had a latent paranoia when the accident occurred, and while the accident was truly traumatic for him, its effects were exacerbated by the imminent paranoid development that was brewing in him; therefore, there would be some element of the psychosis unrelated to the accident. 

216     However, Dr Chazan thought that unlikely, because there was no recorded prodromal feature prior to the accident and on the history, there was no family history and the plaintiff’s presentation when first assessed in 2008 was a traumatic one not a paranoid one.  It seemed that a process was initiated into which the plaintiff drifted deeper and deeper.

217     Dr Chazan then thought the plaintiff’s phenomena were now less obviously associated with the details of the accident than during previous assessments but they could still be seen to be connected with the occurrence of anniversary exacerbation, continued resentment of the accident and thought content to do with the accident.

218     Dr Chazan then thought the plaintiff’s condition appeared effectively stabilised and the prognosis was poor.  He noted the plaintiff did not make a full recovery from the psychotic episode of December 2009.  He considered the plaintiff unlikely to be able to follow through with a simple educational course or make the required concessions involved in handling any job.  He would need supported positions and rehabilitation into the workforce.  Dr Chazan thought future changes in medication were not likely to be hugely significant.

219     In a letter of 20 August 2012, Dr Chazan confirmed the diagnosis of psychotic illness, sedating side effects of medication and on last presentation, the plaintiff was either intellectually disabled or was functioning as if so.

220     On the basis of the mental state examination, Dr Chazan believed the plaintiff did not have the capacity to manage his financial and legal affairs and would not be able to understand matters in relation thereto.  He had poor insight and judgment and would not be able to provide instructions in his best interests.

221     Dr Chazan did not change his opinion having been forwarded the Orygen clinical notes.  He noted the information seemed to parallel the diagnostic uncertainty that was in his own assessment. There were numerous interventions by the Youth Assistance Team and it was noted that the plaintiff attempted to suffocate himself. There were also notes about the stress on the family from the plaintiff’s behaviour and his repeated need for psychiatric intervention.

222     Dr Chazan’s view, it was easy as the plaintiff got older to lose sight of the overwhelming role of the accident in the period when his difficulties began, as the psychotic features and behavioural issues came to dominate his presentation.

223     Dr Chazan was then provided with Dr Daniels’ 2013 medical report, the 2005 notes of NWMH and the plaintiff’s school records.

224     Dr Chazan thought that the NWMH report indicated there was some degree of dysfunction pre accident, not severe enough to be seen outside the home but still evidence of at least some stress and consistent with participation in a struggling family.

225     Dr Chazan noted Dr Daniels’ examination in which the plaintiff said he was better able to regulate his irritability and was no longer violent with his family and described a supportive relationship with parents. 

226     Dr Chazan thought those findings represented a considerable improvement in the plaintiff’s state unless they reflected a problem in using the plaintiff’s self reporting as the sole source of information about his functioning outside the consulting room.

227     Dr Chazan noted the Grade 6 reports which indicated a capable, well-behaved progressing student, stated to be a pleasure to teach.  In Year 7, the first year after the accident, the plaintiff’s reports indicated a lack of application and distraction in class and some under achievement.  He noted the plaintiff appeared to have done reasonable work. 

228     In Year 8, there seemed to be some deterioration, with particular notice to attitude and behaviour in 2009.  The reports seemed to indicate further worsening, with the plaintiff even unable to focus on physical education.  His behaviour in class was generally unacceptable.  There were significant periods of absence and he was not really attending in 2010 and 2011.

229     Dr Chazan noted the school reports suggested a progressive deterioration from Year 7 just after the accident until the plaintiff stopped trying to manage at school in 2011.  That paralleled the plaintiff’s mental illness, which peaked in 2010 and 2011.

230     Dr Chazan believed that if the plaintiff had been assessed immediately before the accident he would have predicted a good psychological and developmental outcome.  He thought it would then have been noticed there were stressors in the plaintiff’s background and parents who were unwell and that he had an encounter with psychological services at ten but the plaintiff’s mother’s view and the school reports indicated he was in the mainstream and developing well but his subsequent deterioration needed to be accounted for.

231     Dr Chazan concluded the accident was both a precipitating factor and a contributing factor.

232     Dr Chazan noted an error in his February 2012 assessment when he thought there was a high impairment that had stabilised.  In doing so, he noted the plaintiff’s lack of change in his condition and resistance to treatment.  Since then, the plaintiff had apparently changed to such an extent that Dr Daniels considered that the plaintiff had the capacity to participate in vocational training and be paid in work or an education over the next twelve months.  Dr Chazan noted that was a remarkable turnaround that he did not foresee.

233     Dr Chazan last saw the plaintiff in October 2014.

234     The plaintiff then reported he had not been in any trouble for several years and his lifestyle had changed and he remained at home and was fearful to go out by himself.  He spent most of the time watching television and he had got rid of his “dickhead mates”. 

235     The plaintiff occasionally experienced overt distress associated with accident reminders.  He was currently being treated by Youth Mental Health.

236     Dr Chazan thought the plaintiff was still very unwell but his behaviour was less flamboyant and his lifestyle more restricted.  He remained highly dependent on his family for company and to provide a sense of security.

237     On examination, the plaintiff described having fluctuating moods, mostly depressed.  He did not have suicidal ideation. The plaintiff reported reduced hallucinated voices which still occurred.  His medication was working.  He described his paranoia as fluctuating.  He described hallucinated voices now and then.  He referred to having paranoid worries.  He was fearful for himself and did not go out for that reason.

238     Dr Chazan noted overall, the plaintiff appeared just as dysfunctional as previously but on the day, was not actively suicidal and had become passive rather than acting out overtly.  Dr Chazan’s impression was of a milder person, easy to spend time with but still quite disturbed.

239     Dr Chazan diagnosed a psychotic disorder not otherwise specified.  He thought it likely the plaintiff would continue to be given various diagnoses, as his condition was not typical of a pathognomonic or any specific named diagnosis. Dr Chazan thought the plaintiff could validly be regarded as Dysthymic Disorder with associated hallucinations.

240     Dr Chazan noted the new material gave the impression of a familial predisposition.  Clearly, it was not usual for an accident to give rise to a psychotic illness and the plaintiff would have to have had a vulnerability to that kind of illness.  That tendency gave the form of the illness but he nevertheless showed signs of re-experiencing the accident in dreams, of mood changes, both to greater reactivity and to lower mood anniversary reactions which have a traumatic-accident-related focus.  Dr Chazan confirmed a trauma could give rise to a psychotic illness.

241     Dr Chazan estimated the accident was largely but not wholly responsible for the plaintiff’s impairment.  He noted that Dr Daniels’ optimism had not occurred and it did not look like occurring soon in terms of a return to work.

242     Dr Chazan thought on one hand, the precipitating event was the accident and much of the plaintiff’s anxious and paranoid thought content had to do with it.  On the other hand, his psychotic illness was not a typical form of traumatic response and there was now a family history evident, with three of the six siblings disturbed.

243     Dr Chazan noted there was none of the unrealistic but optimistic talk of getting a job or getting some training that the plaintiff used to present when a little younger. Dr Chazan thought the prognosis was poor on the basis of no definitive remission with treatment.

244     The plaintiff still had preoccupations with the accident and was reactive to them, having nights of distress.  He finally had been on well-monitored treatment with medication for some time, with psychological supports and was better but remained a very ill young man.  He noted it was heartening that the plaintiff’s medication had been able to be reduced a little.

245     In his 2015 report, Dr Chazan commented on Professor Doherty’s January 2015 report. He noted that Professor Doherty had concluded the plaintiff was no longer affected by the accident, that he had shown signs of disturbance prior to it and his symptoms and signs during adolescence could be largely accounted for by his suggestibility of being wrongly treated for a presumed psychotic illness.

246     Noting this contrast with his view, Dr Chazan tracked the plaintiff through a relatively mild reaction two years post accident in 2008 to the subsequent peak of his symptoms intensity and then his emergence into a chronically dysfunctional and dependent state.

247     Professor Doherty’s report did not alter his opinion.  Dr Chazan concluded that the plaintiff was doing essentially well with his development, then after the accident manifested impairment with symptoms and signs clearly referrable to it.  That deteriorated in mid adolescence into a syndrome that posed a major challenge to those managing it.  As with many adolescents, there was no categorically clear form to it. Dr Chazan hoped that was now in the past, but the plaintiff remained in a dysfunctional state, with the accident being a key factor in the unfortunate development that ensued.

248     Dr Chazan noted one could debate the semantics of the plaintiff’s diagnosis, which had changed over time and had never been clear-cut, however his dysfunction with emotional and behavioural components had never been in question.

249     The plaintiff was examined for medico‑legal purposes in relation to his foot injury by Dr Horsley, occupational physician, on 26 November 2014.

250     Dr Horsley’s report dealt mainly with the plaintiff’s physical injury.  She did however conclude his prognosis for return to work was related to psychiatric problems, noting Dr Chazan’s view that the plaintiff’s prognosis was poor on the basis of no definitive remission with treatment.

251     Dr Horsley thought from a physical perspective, the plaintiff had the capacity to work in a manual role without heavy manual handling and repetitive squatting.  She considered his primary disability was his psychiatric status.  In her view, the plaintiff’s long-term prognosis was related to that and she relied upon her psychiatric colleagues for an opinion in this regard.

The Defendant’s medical evidence

252     On 19 April 2005, the plaintiff attended NWMH following a history of angry violent outbursts at home with his siblings.  It was noted the previous week that the plaintiff had a fight with his brother and attempted to choke himself with plastic rope to get attention.  The plaintiff denied self harm.  He threatened to run away at times.  He was excellent at school and sport.

253     Dr Prakash at Merlynston Village Medical Centre in North Coburg noted poor sleep, depressed mood and right ankle problems on examination on 18 April 2007 when the reason for the attendance was an Adjustment Disorder with Anxious Mood.

254     When the plaintiff was seen on 28 January 2015, Mr Giacobbe, case worker at NWMH, noted the plaintiff reported lower mood and periods of sadness, although that was not pervasive.  He reported decreased motivation, but was able to talk with enthusiasm about AFL football. 

255     Mr Giacobbe noted despite variations in his medication and psychological interventions employed to treat his depression, the plaintiff’s mental state had remained largely unchanged.  There were nil current suicidal thoughts or thoughts to harm others.

256     Mr Giacobbe noted the referral to Rocket Mental Health Rehabilitation and also that the plaintiff and his family were in the legal process.  They appeared to have some invested interest in getting a payout with a sense of entitlement due to the plaintiff’s injury, psychological trauma and perceived insult incurred on the family.  Both the plaintiff and his mother blamed the accident for the struggles between the plaintiff and his family in the past and present.

257     Mr Giacobbe noted that it appeared the plaintiff had invested a lot in the outcome of the claim, and had expressed ideas of how he would use the money.[89]

[89]Note of attendance 9 January 2015 – the plaintiff wanted to buy a house if he got a lot of money from the Transport Accident Commission

258     Mr Giacobbe noted on 20 February 2015, that the plaintiff’s report of going out seemed somewhat inconsistent with his mother’s report of him being agoraphobic.  They discussed with the mother working on a discharge plan with transition to a general practitioner and private psychologist/psychiatrist. 

259     Mr Giacobbe noted the plaintiff’s depressive symptoms were not pervasive.  He appeared to function well in several areas of his life; nil overt psychotic, nil acute risks to self or others.  Mr Giacobbe considered both the plaintiff and his family remained heavily preoccupied with legal proceedings and his symptoms may be over-represented by his mother’s self-reports and perpetuated by secondary gain from the court case.

Medico-legal evidence

260     Dr Patrick Daniels, psychiatrist, examined the plaintiff in May 2013.

261     The plaintiff told him he was unaware of any difficulties with his early development, he enjoyed school and was popular with his peers.  There was no psychiatric history prior to the injury; however, Dr Daniels noted the report from NWMH.

262     On examination, the plaintiff appeared mildly anxious and his affect was reactive, and mood congruent.  His thoughts were organised and goal directed.  There were moderately anxious themes and while Dr Mollica used the word “paranoid” to describe the plaintiff’s anxiety, there were no psychotic ideas.  There were no persecutory delusional or suicidal ideas.

263     The plaintiff described vivid nightmares with violent themes but there were no hallucinations in any modality.   Attention, memory and concentration were intact, as were insight and judgment.

264     Dr Daniels noted all previous behavioural difficulties resulting in the primary mental health team attendance in April 2005.  He also thought although the plaintiff described symptoms of anxiety, depressed mood and loss of interest following the accident, the school reports suggested the most significant deterioration in performance was two years later, in Year 9.  Further, it was noted the plaintiff did not appear to have received further treatment for emotional difficulties until 2009 when treated by CAHMS.

265     Dr Daniels noted the plaintiff continued to described symptoms of anxiety, occasional panic attacks and depressed mood but felt he was more able to self-regulate his irritability and was no longer engaging in violence against his family.

266     In summary, Dr Daniels thought the plaintiff presented with features of a pre-existing emergent conduct disorder associated with difficulties in emotional regulation and behavioural disturbance. These difficulties appeared to have increased two years after the accident. 

267     While there were reports of possible intermittent auditory hallucinations and treatment with antipsychotic medication, Dr Daniels thought the plaintiff did not present with psychotic features on examination nor did the plaintiff currently fulfil the diagnostic criteria for PTSD, diagnosing a Chronic Major Depressive Disorder.

268     Noting the plaintiff was eighteen and appeared intelligent and well engaged with treatment, Dr Daniels thought he was likely to be able to take advantage of ongoing intensive psychosocial rehabilitation and clinical treatment.

269     Dr Daniels considered the severity of the current symptoms indicated the plaintiff was then not able to work but he nevertheless had the capacity to participate in vocational rehabilitation and training such that he may be able to enter paid work or further education over the next year.

270     Dr Daniels thought the plaintiff’s claimed anxiety symptoms had restricted his ability to engage in leisure activities outside the home without the support of family members or professional services.  He considered the plaintiff would benefit from ongoing psychosocial rehabilitation in order to reduce the possibility of his current beliefs about his health and work capacity becoming entrenched.

271     Dr Daniels concluded that the accident was one factor underlying the plaintiff’s current presentation, however, there were other factors that were also likely to be contributing.  Those factors included those set out in 2005 when the clinician noted social difficulties, including a large family, possible chaotic family structure, the father on a Disability Support Pension, crowded house environment and perception of lack of attention. He thought those factors continued to be relevant with respect to shaping the plaintiff’s personality and emotional symptoms.

272      Professor Doherty, psychiatrist, examined the plaintiff in January 2015.

273     The plaintiff then denied any psychological or psychiatric problems before the accident, saying he was a good student.

274     Professor Doherty thought the plaintiff was disturbed behaviourally and psychologically in 2005, noting this was inconsistent with the plaintiff and his mother’s history.  Professor Doherty thought that assessment at that time  indicated the family were concerned about the plaintiff’s behaviour and he had been suicidal.

275     Professor Doherty noted, following the accident and in the context of his adolescence, the plaintiff’s behaviour deteriorated at home and at school.

276     Professor Doherty thought it reasonable, based on the history with the supplied materials, to conclude there was an Adjustment Disorder with possibly features of traumatisation relevant to the transport accident.  There appeared to have been some traumatisation features related to the accident and in his opinion, an Adjustment Disorder had faded and was no longer present.

277     Professor Doherty thought the plaintiff had been treated as if he has had or has a psychotic condition but in his opinion, there was no such psychotic condition currently present and he doubted in the past the plaintiff met that clinical criteria.

278     Professor Doherty considered the plaintiff could be diagnosed as having a conduct disorder and the likelihood of development of that disorder in adult years was high.  He thought the plaintiff appeared to have had an Adjustment Disorder with features of traumatisation now remitted and related to the transport accident.

279     Professor Doherty considered the plaintiff’s prognosis was not good.  There was a very significant psychological disturbance evidenced by his emotional, psychological and behavioural difficulties during adolescence.

280     Professor Doherty noted the prognosis is going to be less favourable than it should be if the plaintiff was not given appropriate treatment in the future.

281     In summary, Professor Doherty thought the Adjustment Disorder with features of traumatisation arose relevant to the accident was evident shorty after it but had now remitted.  He also thought there were significant behavioural problems before the accident and pre-existing personality factors and that the plaintiff met the criteria for a conduct disorder of adolescence.  In his view, there remained significant personality features.  There was no PTSD that could now reasonably or appropriately be diagnosed.  In his view, the current medication was a reflection on the medicalisation of emotional and behavioural symptoms occurring during adolescence.

282     Professor Doherty thought the plaintiff’s behavioural disturbances were in essence constitutional and related to a combination of nature and nurture.  It was his view, the problems the plaintiff had in his teenage years were set in train before the accident.

283     Professor Doherty thought any transport psychiatric condition no longer interfered with domestic and leisure activities.  In his view, the non-transport accident related psychological problems and psychiatric condition continued to interfere with the plaintiff’s domestic and leisure activities.

School reports

284     In both semesters in Year 7, whilst it was noted the plaintiff’s performance was satisfactory, he got E for reading, writing, speaking and listening (English-related subjects), and C for maths and physical education. 

285     In the first semester of Year 8, the plaintiff got D for the English-related subjects and maths, and B for physical education.  It was noted he was easily distracted.  In the second semester, he got E for English-related subjects, D for maths, and C for physical education.  Comments were again made about the plaintiff’s disruptive behaviour, with suspension for a day for fighting on 19 May 2008.

286     In the first semester of Year 9, the plaintiff got E for English-related subjects.  It was noted he had yet to complete most of the set work, and lacked a positive attitude to learning.  He got C for maths, with his teacher noting he was easily distracted. He was given E for physical education, in which it was noted he was not demonstrating the basic requirements of the units for that semester.  He was suspended for fighting for two days on 11 March 2009. 

287     The plaintiff was absent for 43 days in the first semester of 2009, and 20 days in the second semester.  In the second semester, he got an E for the English-related subjects, Ds and Es for maths and E for physical education.  It was noted there was frequent misbehaviour and not completing required tasks. 

288     In the first semester of Year 10 in 2010, the plaintiff was absent for 30 days. He got Es for English and maths.  In the first semester of Year 10, the following year, the plaintiff was absent for 44 days and obtained Es for the tasks assessed.

Overview

289     It is accepted that the plaintiff suffered a psychiatric injury as a result of the transport accident.

290     Whilst the diagnosis of the plaintiff’s illness has been a complex issue, generally, it has been described as involving a PTSD, a brief Psychotic Disorder and a Chronic Major Depressive Disorder

291     There does not seem to be any dispute amongst any of the doctors that the plaintiff is presently suffering a significant psychiatric illness.[90]  However, whilst counsel for the defendant conceded Professor Doherty was of this view, he did not consider the plaintiff’s present condition accident related, and thought there had been a medicalisation of the plaintiff’s adolescent issues.[91]

[90]T177

[91]T171

292     Whilst acknowledging the plaintiff suffered an Adjustment Disorder as a result of the accident, Professor Doherty did not explain at what point and for what reason the accident ceased to contribute to the plaintiff’s psychiatric condition. He did not explain when the accident-related condition faded and was no longer present.[92]

[92]T193

293     In my view, Professor Doherty’s view of remission of accident-related symptoms is inconsistent with the persistent and chronic nature of the plaintiff’s illness over more than eight years since the accident.  Further, it is inconsistent with the evidence of the plaintiff, his mother, Dr Chazan, Dr Hamdan, Dr Sekharan and Jennifer Harding as to the ongoing problems experienced by the plaintiff since the accident.

294     I prefer the opinion of Dr Chazan to that of Professor Doherty.  Dr Chazan, a specialist consultant child and adolescent psychiatrist, has seen the plaintiff four times in the last eight years.[93] Professor Doherty saw him once in January this year.  Having carefully analysed Professor Doherty’s opinion, Dr Chazan’s views were unaltered.

[93]T192

295     The issue is whether the plaintiff’s present accident-related psychiatric condition is severe and long term.[94]

[94]T167

296     Counsel for the defendant submitted that this was an aggravation case and any current impairment in relation thereto was not long-term and severe. 

297     In Petkovski v Galletti,[95] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[95][1994] 1 VR 436; followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309

298     I am not satisfied however that the plaintiff was suffering from any psychiatric condition prior to the accident.

299     Whilst the plaintiff attended the mental health service on the one occasion when he was ten after family difficulties, the notes of that attendance also indicated there were no problems at school, the plaintiff was a high achieving student, he was good at sport and there was no depressed mood.  No psychiatric diagnosis was made.[96]

[96]T186

300     Although medico-legal examiners have attached some significance to this attendance relating to some dysfunction at home pre accident,[97] they did not consider the plaintiff was suffering a psychiatric condition at that time.

[97]T134

301     Although the plaintiff might have been vulnerable, I accept that there is no compelling evidence of a significant or even pre-existing psychiatric condition.[98]

[98]T186

302     As Dr Chazan concluded, the plaintiff was doing essentially well with his development, then after the accident, manifested impairment with symptoms and signs clearly referable to it. The accident was a key factor in the unfortunate development that ensued.

303     I accept that the plaintiff’s 2006 school reports paint a completely different picture of the plaintiff to anything following the accident.  Pre accident, it was noted the plaintiff was an excellent student and a pleasure to teach.[99]  Further, the plaintiff’s mother was not challenged as to her affidavit evidence of the plaintiff’s pre accident-functioning.[100]

[99]See page 141 and following; T186

[100]T187

304     In my view, the plaintiff’s evidence was not successfully challenged by the defendant.  In these circumstances, the failure to cross-examine the plaintiff’s mother cannot be explained in the terms described by the Court of Appeal in Ifka v Shahin Enterprises Pty Ltd,[101] as counsel for the defendant submitted.[102]

[101][2014] VSC 8

[102]T135

Credit

305     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[103]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[103](2010) 31 VR 1 at paragraph [12]

306     Counsel for the defendant submitted that parts of the plaintiff’s evidence should be approached with caution, as he had not been wholly forthcoming about matters adverse to his case.  Further, it was submitted his affidavits were incomplete and lacking in detail.[104]

[104]T128

307     It was submitted the case was not terribly persuasive from the plaintiff’s viva voce evidence because it was hard to accept as “gospel truth” everything he said, because either he changed what he said about his symptoms, or complaints thereof did not appear in the relevant clinical notes.[105]

[105]T172

308     It was submitted the plaintiff was not being frank with his treaters and it was difficult to be satisfied the plaintiff was wholly forthcoming and able to satisfy the onus when he says he kept his complaints to himself.[106]  Even his own treaters thought there were issues of secondary gain and that the plaintiff lacked motivation.[107]

[106]T136

[107]T174

309     Further, it was submitted it was a bit difficult to know when the plaintiff was being frank.  He adopted what suited his case and denied what did not – such as issues of secondary gain and the entries on Facebook.[108]

[108]T137

310     Counsel for the plaintiff submitted that somewhat remarkably, the defendant had chosen to attack the plaintiff’s credit.

311     When considering the plaintiff’s credibility, it was significant that he has a litigation guardian.  One should look at his affidavit and viva voce evidence in that context, in that the plaintiff does not have the capacity to administer his own day-to-day affairs by reason of his psychiatric illness.[109]

[109]T180

312     It was submitted that any inconsistency in the plaintiff’s evidence should be seen in light of his psychiatric illness and the fact that there was clearly going to be a divergence between his evidence in Court and the history and findings of doctors in a clinical setting.  That is an issue that permeates some but not all psychiatric cases.  In this case, the plaintiff often provided a jumbled or mixed history or evidence in Court.[110]

[110]T181

313     Counsel for the plaintiff submitted that the plaintiff gave his evidence in a frank and honest manner, making a number of concessions against his interest.  He quite openly agreed with some of the Facebook entries and the fact he had not done a résumé.  He did not attempt to prevaricate or avoid the issue.[111]

[111]T181

314     It was submitted a criticism on the basis of lack of motivation, which the plaintiff accepted, could be found to be as a result of diagnosed depression and depressive symptoms,[112] noting Professor Doherty thought the plaintiff’s psychiatric condition significantly interfered with capacity, willingness and interest in employment.  There was no suggestion the plaintiff was consciously feigning a lack of motivation.  It was a consequence of his condition and it was a “cheap shot” attacking him in this regard.[113]

[112]T181

[113]T182

315     It was submitted the extensive cross-examination about Facebook was of little assistance as it was primarily centred on 2010 and 2011 when the plaintiff was sixteen and was of little current relevance.  The entries disclosed no more than the “rants” of an adolescent boy with issues relating to anger and social dislocation consistent with his psychiatric condition.

316     I accept the submissions of counsel for the plaintiff in relation to credit.  I found the plaintiff to be a truthful witness who frankly answered questions with, at times, brutal honesty.

317     Further, I am somewhat sceptical about the accuracy of the Facebook “rants”, with the plaintiff himself volunteering a number of entries were not accurate or true.[114]

[114]T185

318     In my view, any discrepancies in the plaintiff’s description of his symptoms can be explained by his significant psychiatric condition requiring the appointment of a litigation guardian to conduct his case.  Any criticism of a lack of motivation can also be explained by his condition.

319     Whilst various examiners were not initially advised of the 2005 attendance or provided with any information in relation thereto, in my view, the plaintiff was not suffering any psychiatric impairment prior to the accident and this attendance was an isolated one.  At the time of the accident, the plaintiff was functioning well.  In any event, the current available psychiatric opinions take this 2005 attendance into account.[115]

[115]Dordev v Cowan & Ors [2006] VSCA 254

Consequences

320     Currently aged twenty, the plaintiff is still a very young man.  He was only twelve at the time of the accident.

321     In Stijepic v Force Group Aust Pty Ltd,[116] Ashley JA and Beach discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[116][2009] VSCA 181

322     The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.[117]

[117]At paragraph 43

Symptoms

323     Whilst at different times the plaintiff has described a range of symptoms with varying frequency, I accept that since the accident, he has been depressed and has had difficulty coping with his post-accident condition.  As a result of his psychiatric condition, he lacks motivation and energy to be active domestically and in terms of looking for work.

324     The plaintiff has experienced symptoms of PTSD with nightmares and flashbacks to the accident scene.  He continues to experience panic and nervousness about going out.

Treatment

325     The plaintiff’s psychiatric condition has required significant intervention over the last eight and a half years, with a lot of treatment in a period spanning early adolescence to adulthood.[118]

[118]T182

326     The plaintiff initially underwent counselling from Dr Kay Evers for six months from February 2007.  In April 2007, his general practitioner diagnosed an Adjustment Disorder with Depressed Mood.

327     There were further referrals the following year, with the plaintiff attending Dr Anderson for four sessions in mid 2008.  The plaintiff also attended the Royal Children’s Hospital Mental Health Service from 9 October 2008 to December 2009.  He was assessed by psychologist, Dr Mollica, in March 2009.

328     In early 2010, the plaintiff had six sessions with Ms Toohey, psychologist, and he underwent a neuropsychological assessment at the Royal Children’s Hospital in March that year.

329     The plaintiff commenced treatment at Orygen in April 2010, which he attended until turning eighteen in October 2012.  He also saw Dr Hines at the Royal Children’s Hospital on four occasions from May 2012.

330     Since turning eighteen, the plaintiff has been under the care of psychiatrists and psychologists at NWMH and Dianella.

331     The plaintiff’s current treating general practitioner, Dr Hamdan, noted that at most visits between October 2009 and to date, the plaintiff looked sad and depressed, attending in relation to anxiety and depression as well as PTSD related to the transport accident.

332     Recently, there has been the suggestion of a twelve-month inpatient rehabilitation at Rocket Mental Health Rehabilitation.  The plaintiff, however, has been reluctant to attend as he has not been away from home before and he did not want to be exposed to young people with drug and alcohol issues who were involved in the program.[119]

[119]T185

333     The plaintiff continues to require substantial medication on a daily basis.[120]

[120]T189

334     The plaintiff’s medication was recently increased. He now takes 360 milligrams of Venlafaxine, an antidepressant, and 10 milligrams of an antipsychotic, Zyprexa.[121]

[121]T130

Consequences

335     Before the accident, the plaintiff was functioning well at school, as confirmed by his school reports and also his mother’s unchallenged evidence. He enjoyed school and his marks were good.

336     Thereafter, the plaintiff struggled with secondary school and was unable to complete even Year 10, having tried to do so on two occasions.  Post-accident descriptions of the plaintiff in his reports are in stark contrast to the pre-accident student who was a pleasure to teach and doing well with his studies, albeit at a primary level.  Following the accident, behaviour problems were noted, and the plaintiff’s marks declined significantly.

337     Not surprisingly, with this level of academic success, the plaintiff has not worked since leaving school in Year 10 and, in my view, his prospects of obtaining any significant employment are remote.  He has been in receipt of a Disability Pension since turning eighteen.

338     Whilst the plaintiff may lack motivation to seek work, I accept this is due his psychiatric condition. Treating psychiatrist, Dr Sekharan, noted depressive symptoms and lack of motivation, decreased activity and hopelessness.[122]

[122]T183

339     Some early optimism as to the plaintiff entering the workforce has not come to fruition, with Dr Hamdan presently of the view the plaintiff has no capacity for work.  Further, Dr Chazan, in October 2014, thought the prognosis was poor and there was none of the unrealistic but optimistic talk of getting a job.[123]

[123]T190

340     Michael, who is apparently the plaintiff’s case manager at NWMH, is the main supporter of the view the plaintiff has a work capacity. Psychiatrist, Dr Sekharan, was not so optimistic, and in March 2015, thought the plaintiff may be in a position to work in the near future if further psychological treatment was successful.

341     On close examination of the NWMH clinical records, there are inconsistencies between the descriptions of the severity of the plaintiff’s ongoing psychiatric difficulties complaints.  In these circumstances, I prefer the evidence of the plaintiff’s treating psychiatrists to that of the case worker, Michael, whose qualifications are unknown.[124]  As of March 2015, the plaintiff’s diagnosis by those psychiatric treaters was Major Depression with psychotic symptoms from NWMH.

[124]T183

342     Whilst he has made a conscious decision to try to stay out of trouble by parting company with his old group of friends, I accept the plaintiff chooses to stay at home because of his psychiatric difficulties – such as panic when going out.  Social occasions are limited largely to going to shops with family members and the odd football game or hit of cricket – a very quiet existence for a twenty-year-old youth.

343     In these circumstances, I do not accept that the plaintiff refuses to do other things because he is very comfortable at home and he has invested in keeping the case going and therefore exaggerates his disability.[125]  In my view, the plaintiff’s anxiety symptoms have restricted his ability to engage in leisure activities outside the home without support.

[125]T131

344     I consider the range of consequences of the plaintiff’s psychiatric impairment can be described as “severe”.  There has been little retained[126] in his life, which presently involves significant psychiatric symptoms requiring ongoing treatment and medication, a limited social life and bleak prospects of employment in the future.

[126]Dwyer v Calco Timbers Pty Ltd (No 2) (2008) VSCA 260 at 27

345     As Dr Prabhakaren described, in August 2013, the accident had a profound impact on the plaintiff’s life in the sphere of both social and occupational functioning.

Prognosis

346     In my view, the plaintiff’s psychiatric impairment is long term.

347     Recent examiners, Professor Doherty, Dr Chazan and Dr Hamdan, paint a bleak picture of a significant psychiatric illness.  Dr Chazan considered the plaintiff remained a very ill young man who was still quite disturbed and unwell.  He considered the prognosis was poor on the basis of no definitive remission with treatment.[127]

[127]T190

348     Although Professor Doherty thought the plaintiff’s present psychiatric condition was unrelated to the accident, he thought the prognosis was not good and that there was a very significant psychological disturbance requiring ongoing treatment.

349     Whilst the plaintiff might be on the brink of discharge from NWMH, further treatment is envisaged, whether it be psychological or psychiatric.  There is no suggestion the need for ongoing medication will cease.  Dr Hamdan considers there is a need for ongoing treatment in the form of counselling and ongoing anti-depressant medication.

350     Taking into account all the evidence, I am satisfied that the plaintiff’s psychiatric impairment as at the date of hearing is severe and that it is long term.

351     Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident.

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