Duman v Kaini
[2020] VCC 896
•26 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-01418
| DAVUT DUMAN | Plaintiff |
| v | |
| YURI KAINI | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13, 14 and 20 May 2020 | |
DATE OF JUDGMENT: | 26 June 2020 | |
CASE MAY BE CITED AS: | Duman v Kaini | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 896 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – admission of liability – denial that transport accident was causative of injury, loss and damage – minor impact – soft tissue injury – consequential major psychiatric condition – prior psychiatric condition – whether prior psychiatric condition persisted – creditworthiness and reliability of the plaintiff – conflict in the medical evidence as to the cause of the plaintiff’s physical injury and psychiatric condition
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958; Evidence Act 2008 (Vic)
Judgment: Judgment for the plaintiff for damages as assessed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr D O’Brien | Zaparas Lawyers |
| For the Defendant | Mr C J Blanden QC with Ms A Wood | Solicitor for the Transport Accident Commission |
HIS HONOUR:
The proceeding
1 The plaintiff commenced this proceeding by Writ endorsed with a Statement of Claim alleging that on 25 November 2014, a car driven by the defendant collided into the stationary car driven by him, resulting in him suffering injury. By his Defence, the defendant admitted negligence. He did not admit “the nature, extent or consequences of the injury, loss and damage” alleged by the plaintiff.
2 The proceeding was listed for trial as a civil jury. The interference with the Court’s capacity to undertake its work in the ordinary way by the COVID-19 virus resulted in the parties applying to have the proceeding heard as a cause.
3 In order to hear the proceeding as a cause, the parties gave their consent that the parties appear, witnesses give evidence, and counsel make submissions by audio-visual link pursuant to the relevant provisions of the Evidence (Miscellaneous Provisions) Act 1958.
Burden of proof
4 The defendant thought it necessary to remind me in his written submissions that the standard of proof in a civil proceeding is satisfaction that a case has been proved on the balance of probabilities by reference to s140 of the Evidence Act 2008 (Vic). Furthermore, that in determining whether the plaintiff has discharged the burden of proof which he carries, it is more than just making a comparison between both cases and determining that the plaintiff’s case is more likely than the defendant’s case.
5 I refer to this simply to put to bed any concern on the part of the defendant that I might inadvertently ignore the fact that the plaintiff bears the burden of proof, and that it is the civil burden of proof.
The Plaintiff’s background
6 The plaintiff gave evidence. He adopted the contents of his two affidavits sworn on 26 May 2017[1] and 7 March 2018 [2] as part of his evidence-in-chief.
[1]Exhibit A
[2]Exhibit B
7 The plaintiff was born in October 1966 in Turkey. He arrived in Australia when he was about four years of age. He has been married twice. He has three daughters with his first wife, and a number of grandchildren.
8 The plaintiff left secondary school early in order to enter the workforce. He commenced work with ABM Plastics in 1983. He worked for it for about fifteen years. In 1998, he obtained a redundancy and, subsequently, commenced work with Fine Wrap, Aperio and then Amcor three days after ceasing employment with ABM Plastics. The plaintiff said that each were a successor company to the same business conducted at the same premises. He worked for it for about twelve years, ceasing employment with it to commence employment with Mega Plastics. The plaintiff worked with it until the occurrence of the transport accident. He has not worked since.[3]
[3]Exhibit 1, plaintiff's first affidavit, paragraph 4 (“the first affidavit”) and Transcript 15
The Plaintiff’s prior lower back condition
9 The plaintiff experienced mild back pain at times prior to the occurrence of the transport accident. He recalled being prescribed Voltaren and Panadeine Forte for pain relief. The mild back pain did not interfere with his capacity to work and to attend to his activities of daily living.[4]
[4]Exhibit 1 of the first affidavit, paragraph 4
10 The only relevance of the plaintiff’s prior history of mild back pain arose during addresses. It was not something on which he was cross-examined at any length. The defendant submitted that if I considered that I should assess a sum for the plaintiff’s future loss of earning capacity, then there should be a significant reduction for vicissitudes. One of the vicissitudes relied on was the risk of onset of disabling lower back pain.
11 I am satisfied that it is more probable than not that the plaintiff suffered mild back pain prior to the occurrence of the transport accident. I am not satisfied that it interfered to any extent at all with his capacity for work.
The Plaintiff’s prior psychiatric condition
12 The plaintiff experienced mild depression prior to the occurrence of the transport accident.[5] He saw Dr Woo, general practitioner, in November 2006. He prepared a GP Mental Health Care Plan dated 27 November 2006. According to the plan, the plaintiff presented with depression. Dr Woo identified the plaintiff’s needs, the goals that the plan was set to achieve, and the actions which were to be undertaken. The actions were limited to referral to a psychologist.[6]
[5]Exhibit 1
[6]Exhibit 19
13 The plaintiff saw Dr Woo again in July 2008 for treatment of a psychiatric condition. He prepared a GP Mental Health Care Plan dated 28 July 2008.[7] According to the plan, the plaintiff presented with depression, anxiety and impotence, all of which appear to be interrelated with marital problems that he was experiencing. Dr Woo identified the plaintiff’s needs, the goals that the plan was set to achieve, and the actions which were to be undertaken. The actions were limited to referral to counselling, and counselling to be undertaken by Dr Woo.
[7]Exhibit 20
14 Under cross-examination, the plaintiff was asked whether he remembered the episode of depression in 2006 and whether he saw a psychologist. He said that he could not remember the episode nor whether he had any treatment from a psychologist. He was asked similar questions relevant to the episode of depression in 2006 and gave similar answers, except that he said that he was going through a divorce, but I understood him to mean that the episodes of depression may have been related to the marital breakdown.[8]
[8]Transcript 27-28
15 The plaintiff experienced another bout of depression in January 2013. He saw Dr Tokman, general practitioner, rather than Dr Woo. He explained that his reason for seeing Dr Tokman rather than Dr Woo was because Dr Tokman spoke the plaintiff’s native language of Turkish. He prepared a GP Mental Health Care Plan dated 26 January 2013.[9] According to the plan, the plaintiff presented with depression. Dr Tokman undertook a mental state examination by reference to symptoms set out on the plan. He noted that the plaintiff was depressed, dysthymic (flat/blunted), disturbed (initial insomnia/early morning wakening), and tired, with the loss of pleasure.
[9]Exhibit 6
16 Dr Tokman diagnosed that the plaintiff was suffering from depression. He identified the plaintiff’s goals which were to understand and manage the symptoms of depression, understand and manage the symptoms of physiological trauma, put into place strategies/techniques to reduce anxiety levels, sort out unresolved issues in the previous relationship, deal with a history of unresolved trauma issues, and to identify new ways of adopting changes and dealing with challenging problems which he had been enduring with his children. He referred the plaintiff to Ms Gul Selvi, psychologist.
17 Under cross-examination, the plaintiff said that his youngest daughter, Zehra, was seeing a school counsellor because of issues that she was having in her schooling. He identified that as a difficulty that he was having which led him to seek treatment from Dr Tokman.[10]
[10]Transcript 28-30
18 Dr Tokman referred the plaintiff to Ms Selvi by a letter of referral dated 26 January 2013.[11] He referred to the GP Mental Health Plan and that the plaintiff was entitled to six Medicare rebate sessions. Ms Selvi wrote to Dr Tokman by letter dated 24 April 2013, noting that the plaintiff had completed six counselling sessions.[12] Ms Selvi undertook a clinical interview with the plaintiff comprising a mental status examination, and a structured risk assessment. She also used a Depression, Anxiety, Stress Scale (DASS-42) assessment.[13] The purpose of the assessment relying on the psychological tools was to make a diagnosis. Ms Selvi then reported:
“The DSM-IV specifies that a diagnosis of Major Depressive Disorder is characterized by a major depressive episode. Mr Duman’s first episode of depression (triggered by his expectation of having a better relationship with his children) was characterized by feeling[s] of sadness, loneliness, hopelessness, negative thoughts of worthlessness and withdrawn behavio[u]r. This interfered significantly with his social and family relationship. Mr Duman’s symptoms continued [for] more than 10 months which meets the criteria of duration for Major Depressive Disorder, Single Episode (DSM-IV-TR) … .”
[11]Exhibit 5
[12]Exhibit 8
[13]Exhibit 7
19 Ms Selvi recommended that the plaintiff have further counselling. She set out, in a table form at the base of the letter, the targets for further treatment and the types of intervention that she considered would be useful.
20 The plaintiff returned to see Dr Tokman in May 2013. He completed a GP Mental Health Treatment Plan Review dated 13 May 2013. He conducted a Kessler Psychological Distress Scale test which is attached to the plan. In summary, Dr Tokman noted that a little of the time, the plaintiff felt nervous and restless. Some of the time, he felt tired, nervous, restless or fidgety, depressed, sad and worthless, and most of the time, that he felt hopeless and that everything was an effort. Dr Tokman diagnosed that the plaintiff was suffering from depression, mixed with anxiety. His goal was to improve the plaintiff’s sense of wellbeing, and to achieve that, he recommended that the plaintiff continue with sessions with Ms Selvi. Under cross-examination, the plaintiff said that he could not remember returning to see Dr Tokman nor any of the symptoms recorded by Dr Tokman.[14] The plaintiff did not see Dr Tokman again complaining of these symptoms nor did he return to counselling with Ms Selvi.
[14]Transcript 30-32
21 The treatment provided by Dr Tokman and Ms Selvi in early to mid-2013 occurred approximately eighteen months prior to the transport accident. During the period of that treatment, the plaintiff continued working for Mega Plastics. In the ensuing eighteen months, the plaintiff did not obtain any treatment from Dr Tokman nor Ms Selvi, nor did he return to his usual general practitioner, Dr Woo, for any similar treatment.
22 The relevance of these episodes of treatment were commented on by a number of medical practitioners who treated and assessed the plaintiff, and in particular, Dr Gelman, Dr Piperoglou, Dr Ingram, Dr Weissman and Professor Doherty, whose evidence I will refer to later in these reasons.
The Plaintiff’s daughter, Zehra
23 Following the dissolution of the plaintiff’s first marriage, his three daughters lived with their mother. His two older daughters are married. Zehra is his youngest daughter. The plaintiff’s evidence of the movements of Zehra before the transport accident are difficult to follow, but it would appear that she had lived with the plaintiff and his second wife for a period before moving out, and then lived with her mother. The plaintiff described his contact with Zehra as being infrequent. He probably saw her once every two or three weeks.[15]
[15]Transcript 14
24 On the preceding weekend before the occurrence of the transport accident, the plaintiff’s two older daughters told him that they wanted to see him. Together they went to his home. They had found out that day that Zehra had travelled to Syria to join ISIS.[16] Under cross-examination, the plaintiff conceded that he had not attended work on the day of the occurrence of the transport accident nor the previous day, and when asked why, he said the following:
[16]Transcript 37
Q:“… Why was it that you weren’t at work on this day?---
A:I do not know why I wasn’t at work on that day, I wasn’t probably in the mood to work that day.
Q:Why would that be?---
A:The shock of my daughter going overseas, fleeing overseas, and my - I wasn’t in a mood to go to work, I needed a couple of days off, I needed a day which I told my - thing, I need a few days, just to get myself back to order. I can’t remember why I wasn’t at work, because of that.
…
Q:So if you weren’t at work on the day of the accident, the reason why you weren’t at work on the day of the accident was to do with your daughter, wasn’t it?---
A:Yes.
Q:And more particularly your reaction and how you were dealing with and coping with the news that your daughter had fled overseas to join ISIS?---
A:I was in complete shock and anger as any parent would be, I think.
Q:And so we’re clear, the reason that you hadn’t gone to work was because of your reaction to your daughter leaving?---
A:At that day, yes.
…
Q:Is it possible that you had been off work the day before as well?---
A:Probably.”[17]
[17]Transcript 37-38
25 Under cross-examination, the plaintiff was taken to a Herald Sun article of 28 December 2014.[18] The article depicts a picture of Zehra wearing a headscarf, her husband armed with a large automatic rifle and draped in belt-fed ammunition, and two young boys, one of whom is armed with an automatic rifle and a military ammunition belt.
[18]Exhibit 1
26 Under cross-examination, the plaintiff was taken to the substance of the article and passages from it in quotation marks said to be direct quotes from him. The relevant parts of the cross-examination were as follows:
Q:“You see, the Herald Sun reported on 28 December 2014 that you, and I will quote you the article, it is on p.166 of the defendant’s court book I’m quoting from ‘Ze[h]ra Duman’s distraught parents say the 21 year old has been brainwashed and they are desperately working with the authorities to bring her home’; is that the case?---
A:I do recollect that, I think I have said she was brainwashed because it was a complete shock to us. It was not in her character to change like that all of a sudden and to make that sort of decision to go overseas.
Q:All right, and so were you desperately working with authorities to bring her home?---
A:Not myself but the mother and her sisters here, I wasn’t in a position to - I only found out of the police after.
Q:So you weren’t doing anything to assist?---
A:No.
Q:Nothing at all?---
A:What can I do? I only spoke with the police once or twice and they said, ‘Leave it to us’.
Q:The article goes on to say this, ‘Despite attempts from family and friends to bring her home, Duman[’s] social media pages paint a picture of a woman filled with hate for non-Muslims. She’s been brainwashed. She wasn’t like this three or four months ago Mr Duman said’?---
A:Which I said, yes, she was brainwashed, that’s what I recollect, I said that because it was completely out of character.
Q:Just so we’re clear, this is the Herald Sun purporting to quote you, so this is a statement that is in quotations, a statement you have made to the Herald Sun, Shat Is, ‘She’s been brainwashed, she wasn’t like this three or four months ago’; you said that the Herald Sun?---
A:I probably did, yes, because I was - they rang me which I didn’t notify, and I told them, ‘I don’t want to talk about it, all I can tell is that it looks like she’s been brainwashed and she went and made up her other than decision to go overseas without telling anyone, not even her mother, not even her sisters, not anyone.’
Q:And they then quote you are saying this, ‘We’re trying desperately, trying to bring our daughter home. We got the police involved, it is very difficult for us to cope’, is that correct?---
A:I probably did say that, we have the police involved because the mother and her daughters rang up trying to find out what they can do.
Q:‘And it is very difficult for us to cope’, you would have said that to them as well?---
A:At the moment, yes, I probably did say that because it was a different situation, it was a situation where we didn’t want to be in, I will call it.
Q:And of course it was very difficult for you because your youngest daughter had just decamped overseas and had just married an ISIS terrorist, so of course it was difficult, wasn’t it?---
A:Of course it will be difficult for anyone, for anyone.
Q:Yes?---
A:Well, she was an adult, she made her own mind up without telling anyone, where I can say that no-one knew about what she was doing.
Q:That’s the position that you have come to in recent years, that you can rationalise her decision along those lines but that was not the case in December 2014 or at the time of this accident, was it? At the time of this accident you were simply distraught about the fact that she had left and wasn’t coming back?---
A:Distraught or upset or shocked, whatever I call it, but as any normal parent would be in the same situation or the same thing is what I wasn’t through those first few days, or whatever it is called, where we tried to find ways of getting her back, but unfortunately it was out of our hands, out of anyone’s hands of what she has done, we couldn’t do anything else. We notified - my daughters and her mother notified the law enforcement in Australia to find out what they can do.”[19]
[19]Transcript 59-65
27 That summarises Zehra’s actions in the days prior to the occurrence of the transport accident and the plaintiff’s reaction to her journey to Syria and her marriage to an ISIS fighter. Other events occurred in Zehra’s life which were also the subject of cross-examination. In summary, her first husband was killed in the fighting. She married another ISIS fighter. She is presently living in a transit camp in Syria with three children. The plaintiff has contact with her every few weeks.[20]
[20]Transcript 65
28 I should pause here to refer to the defendant’s submission of the relevance of Zehra and her actions in leaving Australia in the manner she did and for the reasons already referred to, and the impact that had on the plaintiff. The defendant submitted that the plaintiff could not have suffered a physical injury resulting from the transport accident, and what psychiatric condition he subsequently developed is connected to Zehra and her plight. I will return to this in more detail later in these reasons.
The transport accident
The Plaintiff’s evidence
29 On Tuesday, 25 November 2014, and probably at around 10.30am, the plaintiff drove his Nissan Pathfinder car along St Kilda Road, St Kilda. He brought his car to a halt in obedience to a red traffic control signal at the intersection of St Kilda Road and Alma Road. His wife, Dilek Duman, occupied the front passenger seat of his car.
30 Under examination-in-chief, the plaintiff was asked how the transport accident occurred. He said:
Q:“And what happened?---
A:We were stationary at a red light, I think there was a car in front of us, we were behind that, just talking with my wife waiting for the lights to go green which they didn’t yet. While I’m just looking, all of a sudden a car hits me from the back which I didn’t even know it was a taxi or not, and that jolt severely gave me a bigger burning sensation around my back which I couldn’t sustain my position, well, the jolt affected me with a burning sensation in the back which I straightaway jumped out of the car - got out of the car, sorry - opened the door and -.”[21]
[21]Transcript 18
31 The plaintiff added that he was wearing a seatbelt at the time. He did not hear the screeching of tyres or anything of that kind, and he was not braced ready for an impact. Under further examination-in-chief, he described the immediate aftermath of the jolt:
Q:“I think you said you got out of the car, what did you feel when you got out of the car?---
A.My back - straightaway I said in my language to my wife, ‘My back’.
Q.Yes?---
A.And holding my back.
Q.What was wrong with your back, what did you experience?---
A.Pain, burning sensation and pain down by lower - started from my upper down to the lower back area.”
32 Under cross-examination, it was put to the plaintiff that the transport accident was “a very minor accident”:
Q.“Now, the accident itself I want to suggest you was a very minor accident?---
A.You can suggest to me that but I do not believe (indistinct) how heavy or how strong it was, all I felt was a big thud and I didn’t realise, I didn’t see the car accident or see the damage on my vehicle that day.
Q.The defendant’s going to say that he was behind your vehicle and he had been stationary behind you for some time because you were all stopped at a red light, that there were stationary vehicles beside you as well and that there was some movement from the vehicles beside you. He took his foot off the brake, it was an automatic vehicle, he had his foot on the brake. He took his foot off the brake and started to roll forward and rolled into the back of your car at extremely low speed. He says somewhere between one and 4 km an hour; what do you say to that?---
A.I don’t know how fast or how slow or whatever he was going because I didn’t see him. I can’t say nothing about what he’s saying.”[22]
[22]Transcript 39-40
33 Under further cross-examination, the plaintiff was taken to photographs of the defendant’s car (a taxi) and his own car. I will trace through the photographs in the order that they were exhibited, and not in the order they were produced to the plaintiff under cross-examination.[23] In that order:
[23]Exhibit 16
· The first photograph is of the rear bumper area of the plaintiff’s car and a towbar and tow ball fixed under the bumper bar protruding out from the bumper bar.
· The second photograph is a close-up of the numberplate of the defendant’s car with a hole just to the right side of the middle of the numberplate.
· The third photograph is of the whole of the defendant’s car with an undamaged numberplate fixed in position. I assume this photograph represents a replacement numberplate because the numberplate shown in the second photograph is clearly damaged.
· The fourth photograph is a close-up of the fixing point on the front bumper bar to which the numberplate would ordinarily be fixed. The photograph shows the numberplate hanging vertically to the right side of the fixing point. There is a hole consistent with the same point of the hole in the numberplate shown in the second photograph, and associated depression around the hole and cracking of the fixing point going from right to left and then downwards.
· The fifth photograph is of the whole of the rear of the plaintiff’s car. There is a pink cross on the bumper bar showing some slight depression, which I assume is the damage which the plaintiff referred to under cross-examination.
· The sixth photograph is a close-up of the bumper bar of the plaintiff’s car and the pink cross showing the slight depression, and a close-up of the towbar and tow ball.
34 Under cross-examination, the plaintiff was taken through each of the photographs. There is little controversy in the end of what the photographs depict. The plaintiff said that he was unable to comment on the damage to the defendant’s car. He was told by his wife that there was “a great big hole” where the defendant’s car impacted against the towbar and tow ball. He agreed that the photographs of his car were in fact of his car, and he added that they were photographs of his car before it was repaired.[24]
[24]Transcript 40-41
The Plaintiff’s wife
35 The plaintiff’s wife, Dilek Duman, gave evidence. She said that she was a front seat passenger in the plaintiff’s car when the transport accident occurred. Under examination-in-chief, she was asked how it occurred. She said:
Q: “What happened?---
A:Our car was stationary at red lights and another car had collided at the back of our car.
Q: What happened to you when the other vehicle hit your vehicle?---
…
A:As the car was struck from a rear end I jolted forward forcefully and then went back into my seat.” [25]
[25]Transcript 223-224
36 Mrs Duman said that immediately following the impact, the plaintiff said “my back” to her. He got out of the car and was subsequently removed from the scene of the transport accident by ambulance.[26]
[26]Transcript 225
The Defendant
37 The defendant gave evidence. Under examination-in-chief, the defendant said that he was a taxi driver by occupation. On the day of the transport accident he was driving a yellow Toyota Camry sedan, registration number U1105. He stopped his car at the intersection of St Kilda Road and Alma Road in obedience to red traffic control signals. He believed that the vehicle immediately ahead of him was a Nissen Pathfinder. He was then asked how the transport accident occurred. He said:
Q:“So you’re stationary behind this Nissen Pathfinder, can you tell His Honour what happened?---
A:I was stationary for some period of time behind (indistinct) car but there it was out of the corner of my eye when I notice the car started to move slowly forward in the lane next to me on the right-hand side. To just make it easier and just slightly release my foot off the brake panel, not completely but slightly, and the car - the front car - in the (indistinct) it was still - and I stopped but the left-hand lane already gone into the towbar of the front vehicle. As a result of that I damage my numberplate, aluminium numberplate and I had a crack on the numberplate as well, on the bumper, a plastic one.
Q:Can you tell His Honour when you were stationary and before you let your foot off the brake, approximately how far behind that car in front where you position?---
A:1 metre, maybe a little bit more than that.
Q:I think what you said is that you released your foot from the brake but the vehicle in front didn’t move, is that correct?---
A:Didn’t move, yes, I just reduce the pressure on the brake pad.
…
Q:So when the collision occurred, can you tell His Honour approximately at what speed your vehicles travelling?---
A:It travelled maybe 1 kilometre an hour, something like that (indistinct).
Q.So when you collided with the rear of the vehicle in front, what sort of impact was it?---
A:Actually the hook of the towbar went into the numberplate and plastic bumper, that’s why it’s cracked, the plastic bumper as well, the number plate.
…
Q:And was it a big impact or a small impact or somewhere in between?---
A:It was a pretty minor impact but still was a light touch, I would say, light touch.
Q:Did the impact caused the vehicle in front of you, as far as you are able to tell, did it cause the vehicle in front of you to itself move forward?---
A:No, no, it was stationary because I cannot move in such small power, the heavy vehicle which is heavier than mine, over two times, against mine which is maximum (indistinct).”[27]
[27]Transcript 304-306
38 The defendant moved his car around a nearby corner, perhaps 40 meters away from the point where the transport accident occurred. He returned to that point in a short time, estimating it to be perhaps 30 or 40 seconds later. By that stage, he observed that the occupants of the other car were out of their car. He observed the plaintiff sitting on a fire hydrant with his shirt rolled up. He observed that on the lower half of his back there was “a patch” which he described as a “a big one”. Under cross-examination, the plaintiff denied wearing a heat pack on his lower back.[28] Subsequently, he said that both he and the plaintiff moved their cars into a car park of a nearby 7-Eleven store.[29]
[28]Transcript 42
[29]Transcript 306-307
39 The defendant said that he exchanged details with the plaintiff. It was at around the time he did so that someone suggested that he take photographs of both cars. He was then shown the first and second photographs which I referred to above. He identified those as the photographs which he took.[30]
[30]Transcript 308
40 Under cross-examination, the defendant was shown the other photographs. At first the defendant described the damage to the front of his car as a crack in two places. He was pressed under cross-examination that the damage was consistent with a hole through the numberplate and bumper bar. He agreed.[31]
[31]Transcript 311
41 Under further cross-examination, it was put to the defendant that for that amount of damage to have occurred the impact must have been of some force:
Q:“Mr Kaini, for a hole to be put behind the numberplate there must’ve been considerable force, do you agree with that?---
A:I would disagree because the numberplate, it’s aluminium, 1 millimetre of aluminium and 2 millimetres of plastic, cannot do any damage against steel towbar, then please consider the weight of the vehicle, over two tonnes, on the brakes.”[32]
[32]Transcript 312
42 The defendant was pressed under cross-examination that the impact was more significant than he was prepared to concede by reference to the damage to the front of his car. It was then that he described the material of which the bumper bar of his car was made as being like paper, and he then described it as plastic.[33] I understood him to be endeavouring to demonstrate that the materials of which the numberplate and bumper bar are made are thin, not particularly strong and capable of a hole being created by a towbar with some ease and without much force.
[33]Transcript 312-313
The force of the impact
43 In the defendant’s written submissions, he submitted that the transport accident was not only a very minor accident, but that it occurred at a very low speed with very little force, resulting in minimal and insignificant damage to both cars.[34] In supplementary oral submissions, the defendant submitted that what occurred was tantamount to a minor parking accident consistent with the defendant’s evidence and what can be made of the damage to the cars shown in the photographs.[35]
[34]Written submissions dated 19 May 2020
[35]Transcript 352
44 In the plaintiff’s written submissions, he conceded that the transport accident was a relatively minor accident, but that there was some force involved consistent with the damage to the defendant’s car. The plaintiff emphasised his own evidence of a jolt which was severe enough to give him a “bigger burning sensation” around his lower back which did not enable him to maintain his seated position in his car and which led to him getting out of his car reasonably quickly. He submitted that the effect upon his body is consistent with sufficient force generated by the impact to result in him suffering injury.[36]
[36]Written submissions dated 20 May 2020
Conclusion
45 I am satisfied it is more probable than not that there was an impact of sufficient force to have caused a jolt to the plaintiff’s body and produce an immediate sensation of pain in his lower back. My reasons for reaching that conclusion are as follows.
46 Firstly, there is no doubt that there was an impact sufficient to result in damage to the defendant’s car consistent with two photographs showing a hole through the numberplate and a hole through the point on the bumper bar to which the numberplate would be affixed.
47 Secondly, I reject the defendant’s evidence that the manufacture of the numberplate and the bumper bar are so thin and lacking resistance to impact that the damage could have been caused by an impact of 1 kilometre per hour, with his vehicle merely rolling forward upon the release of the brake. I think it is more probable than not that his vehicle was moving at a higher speed, and that the impact was more significant than he was prepared to concede, and consistent with the bodily sensation felt by the plaintiff and his wife of a significant enough jolt to result in the plaintiff suffering immediate pain to his lower back.
The Plaintiff’s physical injury
48 In the defendant’s written submissions, he submitted that the transport accident did not cause the plaintiff any physical injury, and in the absence of any physical injury, he asked the question: Upon what transport accident-related event is the plaintiff’s psychological condition based and/or reacting to?
49 I am in no doubt that the plaintiff was in a state of shock and was very troubled by Zehra leaving Australia and travelling to Syria to join ISIS. I am in no doubt that the reason why he did not work on the Monday preceding the day on which the transport accident occurred, and also on that day itself, was because he was emotionally affected by her actions; however, I am not satisfied that the plaintiff’s reaction to the transport accident is solely explicable by being overwhelmed by his emotional reaction to Zehra’s actions.
50 I think the plaintiff’s conduct in the immediate aftermath of the transport accident is consistent with him suffering a physical injury to his lower back. My reasons for reaching that conclusion are as follows.
51 Firstly, I am satisfied that the plaintiff is a witness of truth. I am satisfied that it is more probable than not that he experienced an immediate burning sensation around his lower back which was severe. I am satisfied that it is more probable than not that it was of such gravity that he could not sustain his position in his car and got out of his car straight away. I am fortified in accepting the plaintiff’s evidence in this respect because it is confirmed by the evidence of his wife, who likewise described the force impact in a similar way to the plaintiff and heard him say words to the effect that he had suffered pain to his lower back.
52 Coincidentally, there was an ambulance nearby at the time when the transport accident occurred. The ambulance officers attended upon the plaintiff. The ambulance officers completed an ambulance record.[37] It records that the ambulance officers were at the location of the transport accident at 10.25am. They recorded that the plaintiff’s main problem was lower back pain. A history was recorded of the occurrence of the transport accident. None of what is recorded is in any way controversial, and indeed, consistent with the broad description of how the transport accident occurred given by the plaintiff, his wife and the defendant. On examination, the ambulance officers noted that the plaintiff was suffering cramped like lumbar pain on his left side, with pain radiating into his left buttock and left flank. Beside that entry is a shading of the lower back area on a figure of a body.
[37]Exhibit R
53 The ambulance officers then noted their management and assessment of the plaintiff. At 10.26am, they noted that the plaintiff and his wife were “very emotional” at the scene of the transport accident. At 10.28am, they recorded the plaintiff’s complaint of having “7/10 lumbar pain”. Subsequently, the removal of the plaintiff from the scene of the transport accident to The Alfred hospital at 11.20am. The plaintiff was an inpatient at The Alfred hospital overnight.
The Plaintiff’s medical treatment
54 The conclusions I have reached relevant to the occurrence of the transport accident are by no means the end of the causation issue raised by the defendant. The defendant maintained that irrespective of whether I concluded that the impact between the two vehicles was of sufficient force to cause a lower back injury, there are two significant problems which the plaintiff cannot surmount. The first is that despite all of the investigations into the plaintiff’s complaint of having suffered a lower back injury, that no pathology has been uncovered to arrive at a cause of it. The second is that the plaintiff’s initial treatment concerned his reaction to Zehra’s actions, and that the real cause of his current psychiatric condition is related to that reaction and not the transport accident.
55 It now becomes necessary to examine the whole body of the medical evidence in significant detail, starting with Dr Woo.
Dr Woo
56 Dr Woo gave evidence. The plaintiff first saw Dr Woo on 29 November 2014 following the occurrence of the transport accident. He provided three reports dated 3 August 2015,[38] 13 December 2019[39] and 13 December 2019.[40] He adopted the contents of his reports as his evidence-in-chief. Extracts of his clinical notes were also tendered.[41]
[38]Exhibit E
[39]Exhibit F
[40]Exhibit G
[41]Exhibit 18
57 In his first report, Dr Woo noted that the plaintiff first saw him on 29 November 2014. He recorded the following:
“[M]r D Duman is a 48 years old machine operator who presented to me on Saturday November 29 2014 with severe pain in his lower back and left leg. He informed me that he was iNvolved in a car accident on [T]uesday 25.11.14. While sitting in a stationary car at a crossing, the car he was sitting in was hit in the rear by another car (Taxi). He had his seat Belt on. The Ambulance came and he was taken To [T]he Alfred hospital for treatment. It was hard for him to walk due to the pain and he had to walk with the aide of a pair of crutches. Since discharge from the Alfred, it was necessary for him to walk with the aide of a single crutch due to the pain. The CT scan on his lumbar spine done at the hospital apparently revealed no abnormality. He did not suffer any loss of consciousness. Prior to the car accident, he would get minor lower backache which would go away with heat pack and Voltaren gel. The Pain would come on once a month.”
(sic)
58 Dr Woo then recounted a series of investigations undertaken on the plaintiff, none of which turned up any pathology which could be identified as the source of the plaintiff’s lower back pain. He was referred for plain x-rays of his pelvis, left hip, left femur, lumbosacral spine and thoracic spine. None of these x‑rays demonstrated any abnormality. He was treated with rest and was prescribed Endone, Brufen and Panamax for pain relief.
59 The plaintiff presented again on 2 December 2014 complaining of persistent and severe pain in his lower back, with pain radiating into his lower left leg. Dr Woo referred him to have CT scan which did not demonstrate any abnormality. He prescribed Targin and Celebrex. Dr Woo then referred the plaintiff to Mr Aliashkevich, neurosurgeon.
Mr Aliashkevich
60 Mr Aliashkevich did not give evidence. He provided two reports dated 22 December 2014[42] and 20 January 2015.[43] The plaintiff first saw him in December 2014. Mr Aliashkevich noted that the plaintiff’s presenting problems were severe mechanical low back pain and refractory left-sided sciatic pain resulting from the transport accident. He noted the plaintiff’s complaints of pain in his lower back following the occurrence of the transport accident, his treatment at The Alfred hospital, his reliance on crutches and the medication which Dr Woo had prescribed. On examination, he found no neurological abnormality. He recommended that the plaintiff undergo an MRI scan to rule out possible nerve root compression.
[42]Exhibit P
[43]Exhibit Q
61 Mr Aliashkevich reviewed the plaintiff in January 2015. By that time, the plaintiff had undergone a SPECT-CT scan on 23 December 2014 and an MRI scan on 24 December 2014. Mr Aliashkevich considered that neither demonstrated any significant abnormality. He advised the plaintiff that neurosurgical intervention was not required because there was no evidence of substantial disc damage or neural compression. He advised the plaintiff to obtain treatment from a pain specialist. He referred him to Dr Gassin, musculoskeletal pain physician, for treatment.
Dr Gassin
62 Dr Gassin did not give evidence. He provided a report dated 24 September 2015.[44] He briefly noted an account of the transport accident, and the plaintiff’s complaint of suffering ongoing lower back pain and left buttock pain since. He also noted the plaintiff’s difficulty with sitting, standing, walking; interference with sleep; the use of a walking stick held in his left hand; that he had had not returned to work; that he was having physiotherapy, and that he had been prescribed Targin, Tramal, Celebrex, Endep, mirtazapine and Lyrica. He noted that the plaintiff had been referred to Dr Gelman, psychiatrist, for treatment.
[44]Exhibit S
63 After examining the plaintiff and viewing the SPECT-CT scan and MRI scan, Dr Gassin considered that the pain pattern suggested possible involvement of the plaintiff’s left sacroiliac joint. He recommended that the plaintiff undergo diagnostic and therapeutic blocks in an attempt to better define the injury that he had suffered, and the implementation of pain management strategies. The plaintiff did not see Dr Gassin again.
Back to Dr Woo
64 Dr Woo noted in each of his reports that the plaintiff complained of severe pain in his lower back and left leg. He also noted that the plaintiff was using a walking stick. He noted the referrals to Mr Aliashkevich, Dr Gassin, Ms Durmaz, psychologist, and Dr Gelman, psychiatrist. I will return to the plaintiff’s presenting symptoms which resulted in Dr Woo referring the plaintiff to Ms Durmaz and Dr Gelman, but in the meantime I will concentrate on the complaints made by the plaintiff of physical injury, Dr Woo’s treatment for the plaintiff’s physical injury, and his opinion of the cause of the physical injury.
65 In his last report, Dr Woo noted both the plaintiff’s complaints of physical injury and his complaints of severe depression and anxiety. He did not refer to the medication he had prescribed to the plaintiff, but in his second report, he referred to prescribing the plaintiff the following medication around July and August 2016 for his physical pain and depression – Lyrica, Cymbalta, Valium, Largactil, Actilax and Stilnox. By May 2017, the medication prescribed in the plaintiff included Pristiq and Catapres as well. I infer that the plaintiff continued to be prescribed those medications subsequently.
66 In his last report, Dr Woo expressed the following opinion relevant to the plaintiff’s physical injury and his psychiatric condition:
“Mr Duman has suffered a mechanical injury to his lower back as a direct result of the car accident. There is no past history of injury to his lower back pain. There are no outside factors involved. There had not been any sporting injuries. With the physical injury alone, he is permanently incapacitated for any type of work taking into consideration of his past work experience. He has been adequately treated by conservative means: physiotherapy and self-regulated exercise. Further treatment would involve self-regulated exercises, intermittent physiotherapy and hydrotherapy.
Mr Duman also has suffered severe treatment resistant post traumatic depression and reactive depression. He has been adequately treated by a psychiatrist and psychologist with no improvement. He is likely to be depressed for a long time. There are no outside factors involved. Taking into consideration of his depression alone, he is permanently incapacitated for any type of work. Further treatment would involve ongoing treatment with [a] psychologist and psychiatrist.
His conditions have stabilised.
His social life, relationship with his wife, [and] his ability to engage in any sporting activities have been greatly affected. His social withdrawal has affected his life to a very significant extent.
The injuries related to the accident (depression and back pain) has (sic) a profound effect on his social life and life in general.”
67 The history recorded by Dr Woo initially does not include any reference to his reaction to Zehra’s actions; whether he considered that there was a physical basis for the complaints of lower back pain made by the plaintiff or they were part of the psychiatric condition he developed, and whether the whole or a part of the plaintiff’s psychiatric condition was caused by his reaction to Zehra’s actions. These issues, among a number of others, were the subject of extensive cross-examination of Dr Woo by the defendant.
68 The first issue raised under cross-examination of Dr Woo was his understanding of the gravity of the transport accident. The first question he was asked was premised on whether the plaintiff told him that it was a “very low speed accident”. He said that he was not sure of the speed of the impact nor the damage to both cars. He said he was left with the impression that it was “a significant impact” based upon the complaints made by the plaintiff of the level of pain he experienced following the occurrence of the transport accident.[45]
[45]Transcript 141-143
69 Dr Woo was taken through the radiology which he referred to in his first report. He acknowledged that none of the radiology demonstrated any abnormality. He worked on the presumption that the plaintiff may have suffered a discal abnormality based upon the severe pain which the plaintiff was complaining about. It was the reason why he referred the plaintiff to Mr Aliashkevich and why the plaintiff was referred to have an MRI scan. The MRI scan did not demonstrate any abnormality in the plaintiff’s lower back.[46]
[46]Transcript 144-146
70 Dr Woo was asked about the entry in his clinical notes of 24 December 2014 that the plaintiff “lost his mind because [his] daughter [had] gone overseas, missing”.[47] It was the first occasion the plaintiff had told him about Zehra’s actions. He described the plaintiff’s emotional state as being “very upset” and “distressed”. When asked whether Zehra’s actions and his reaction to what she did was an explanation for his complaints of pain which did not have a physical explanation at that time, he said “No, I didn’t think that was the cause of the back pain”.[48]
[47]Exhibit 18
[48]Transcript 147 and 176
71 Dr Woo said that the plaintiff did not tell him that he did not attend work on the day preceding the transport accident and the day of the transport accident. Dr Woo conceded that it would have been relevant for him to know in the setting of a man who was keen on his work and did not attend work as he normally would.
72 Dr Woo was then challenged that his failure to refer to Zehra in any of his medical reports was “positively misleading”. His answer was partially non-responsive, but he gave me the impression that Zehra’s actions did not figure prominently in his treatment of the plaintiff because he said that apart from one or two times that the plaintiff mentioned Zehra, he otherwise did not mention her.[49]
[49]Transcript 149
73 Dr Woo denied that he “specifically” referred the plaintiff to Ms Durmaz because of Zehra’s actions. He said that it was because of the plaintiff’s back pain and his view that the plaintiff’s depression was reactive and secondary to his back pain. It was at that point that he was asked to consider his letter of referral to Ms Durmaz dated 24 December 2014 in which he very briefly described the background to the referral as “Presenting problem/Reason for referral: depressed due to daughter went lissing (scil missing]”.[50] When confronted with the letter of referral, Dr Woo revised his answer that the referral to Ms Durmaz to treat the plaintiff for the injuries resulting from the transport accident was later on and in 2015.[51] I think the implication is that the referral to Ms Durmaz was, at least at first, triggered by the plaintiff’s reaction to Zehra’s actions.
[50]Exhibit 11
[51]Transcript 150-151
74 Dr Woo was referred to the plaintiff’s prior episodes of depression, and seeing Dr Tokman in January 2013, and Dr Tokman’s referral of the plaintiff to Ms Selvi. Dr Woo said that he was unaware that the plaintiff had seen Dr Tokman and Ms Selvi, and that he had initially been referred for six counselling sessions to Ms Selvi and later, a further four sessions. Parts of Ms Selvi’s letter to Dr Tokman were read to Dr Woo, and in particular, parts of it which underwrote her diagnosis that the plaintiff had, in her opinion, suffered a Major Depressive Disorder. Dr Woo did not disagree with the conclusions reached by Ms Selvi based upon what was read to him.
75 Dr Woo was specifically asked about symptoms which Ms Selvi noted the plaintiff was feeling – sadness, loneliness, hopelessness, negative thoughts of worthlessness and withdrawn behaviour – and that they bore a striking similarity to complaints that the plaintiff had made to Dr Woo about the occurrence of the transport accident. He agreed.
76 Dr Woo was then asked whether, if he were armed with that information, that his attitude to the plaintiff would have been different on the first occasion that the plaintiff saw him after the occurrence of the transport accident. He said in answer “No, I wouldn’t form that opinion”. He did concede that in the absence of any physical abnormality detected through radiology, that if he had known of the plaintiff’s previous psychiatric condition, that it would have led him to think whether the depressive reaction the plaintiff developed had something to do with the previous psychiatric condition.[52]
[52]Transcript 155-156
77 The defendant pressed Dr Woo that the there was no physical basis for the plaintiff’s complaints of lower back pain, and that it was solely psychiatrically based. Dr Woo appeared to agree, then describing the plaintiff as having “psychogenic pain”. It was a term he used repeatedly over the balance of the cross-examination of him, and in particular, when parts of Dr Elder’s observations of the plaintiff, examination and opinion were put to him.[53] I will summarise Dr Elder’s opinion later in these reasons.
[53]Transcript 157-158, 161, 162 and 163-165
78 Dr Woo was asked a number of questions towards the end of the cross-examination which I think summarise his overall opinion very well. He did not accept that the plaintiff would benefit in any material way once this court proceeding has reached a conclusion. He did not think the plaintiff was pursuing this proceeding for financial gain, and that was based on his knowledge of the plaintiff over a “very long time”.[54] He considered that the plaintiff’s symptoms as he described them currently, will continue permanently, and he did not think the plaintiff would ever recover from the pain he is experiencing. He said that he believed that the plaintiff had recovered from the “mechanical injury” in the first few months or six months after the occurrence the transport accident, leaving him with a “psychological component”. He added that he considered that the plaintiff’s psychiatric reaction is a response to minor trauma, and in previous answers, he referred to having patients who had suffered a similar predicament and that what he saw about the plaintiff’s reaction was not uncommon.[55]
[54]Transcript 174
[55]Transcript 174-177
Ms Durmaz
79 Ms Durmaz, psychologist, gave evidence. The plaintiff first saw her on 31 March 2015. She provided two reports dated 14 March 2018[56] and 6 January 2020.[57] In her first report, she outlined a history from the plaintiff of aspects of his family background which became the focus of the defendant’s cross-examination of her. She understood that the plaintiff divorced and remarried, had three daughters, and that Zehra had encountered some difficulties in the past which involved the intervention of a school psychologist. She also, most importantly, understood that Zehra left Australia for Syria, and how the plaintiff came to understand what she had done through his other two daughters on the weekend preceding the occurrence of the transport accident.
[56]Exhibit C
[57]Exhibit D
80 Ms Durmaz understood from the plaintiff that he suffered an injury to his lower back resulting from the transport accident, and was experiencing severe enough pain in his back and left leg to be incapacitated for work. She also understood aspects of his medical treatment. She noted the constellation of psychological symptoms which the plaintiff was suffering, for example low mood, struggling emotionally, problems with anger, suffering distorted thoughts, feeling mentally drained, deprived sleep, feelings of lethargy, experience of poor memory and concentration, loss of self-esteem and confidence, feelings of helplessness, hopelessness, social isolation and withdrawal. Ms Durmaz also noted that the content of the plaintiff’s thinking was focused mostly on depressive themes and pain. She noted he was tearful, distressed, depressed and distraught, with irritability and agitation.
81 Ms Durmaz made a psychological assessment and diagnosis by employing a number of psychological tools which enabled her to make a clinical evaluation of the plaintiff’s psychiatric state. She considered that he was suffering from a Major Depressive Disorder. She added that she considered that psychological treatment was essential for him to manage his anxiety and depression and accept and adjust to his injury and to encourage him to deal with his physical and psychological symptoms in a more active way. She considered that treatment by his psychiatrist was important, as was a regular review of his medication.
82 In her second report, Ms Durmaz noted much the same symptoms as she had recorded in her first report. Again, she employed a number of psychological tools which enabled her to provide an updated clinical evaluation of the plaintiff’s psychiatric state. Her opinion did not change materially from her expression of it in her first report. Importantly, she considered that his psychological condition stemmed from his lower back pain, inability to return to work and engage in previously meaningful activities. She described his levels of depression as being severe. She considered that his condition had not significantly progressed from what he was like when she provided her first report. She considered that he was not able to work, and that it was highly unlikely that he would recover psychologically to a level where he could return to work. She added that she did not believe he had a capacity to return to work for the foreseeable future. She also added that she considered that his condition had stabilised, and that she did not expect any significant change in his levels of depression in the near future.
83 The underlying premise of Ms Durmaz’s opinion was challenged. It was not my impression that her opinion changed from how it was expressed in her reports.
84 Under cross-examination, Ms Durmaz was taken to a clinical note which she made in the clinical notes of Dr Woo on 31 March 2015. It reads:
“First session. Very distressed due to his daughter missing. Worried about her safety. He is not sure what he could do about the situation. Anxious. He does not want to see anyone in the community as people asks (sic) questions. His wife is very supportive. He does not want to reflect his problems on his wife. He had difficulty in expressing his feelings, and was teary [from] time to time.”[58]
[58]Exhibit 18
85 Ms Durmaz conceded that the clinical note does not refer to the plaintiff suffering any physical injury or pain. She conceded that the initial referral made by Dr Woo related to Zehra’s actions and the plaintiff’s reaction to her actions.[59] She was not aware that he was absent from work the previous day and on the day of the occurrence of the transport accident because of his state of shock on hearing that Zehra had gone to Syria.[60] She was not aware of a description of the transport accident and the force of the impact. She said that she was left with the impression that the plaintiff’s car suffered a “forceful hit” from the other car. She was not aware that he had suffered previous psychiatric problems.[61] She added that it would have been helpful for her to know of the plaintiff’s previous psychiatric problems. She asked him about his previous psychiatric history. He told her that he had no such history.[62]
[59]Transcript 85-86
[60]Transcript 87
[61]Transcript 87-88
[62]Transcript 90
86 The major focus of the cross-examination was directed to Ms Durmaz’s clinical notes.[63] Under cross-examination, Ms Durmaz was directed to the note she made when the plaintiff first saw her on 31 March 2015. She said that the clinical notes of that day did not contain a complaint by the plaintiff of pain in his lower back, pain in his left leg, and inability to work and feeling bad about not working. She agreed, but what she agreed to has to be seen in the context of how the initial consultation began. Under examination-in-chief, she explained her method, and the method that she employed on that occasion:
Q:“Can you explain to the court how this works, when a new patient comes to see you, what, you ask him what the problem is or do you ask him the histories, or how do you go about it when they initially come to see you?---
A:When they come to see me I introduce myself and I explain the particular approaches and then I ask what brought them to me, what are the current stressors and difficulties that they are seeking professional help with.”
[63]Exhibit LL
87 Again, under re-examination, she was asked this next question:
Q:“What do you think he came to see you about?---
A:Initially he opened the session with this sentence, he that he had an accident, he is very much (indistinct) and he has the injuries, and he is anxious and he is very distressed about it. Then he provided - I asked of course how it happened, where it happened and all those and he provided me with this short entrance, history part of the accident.”[64]
[64]Transcript 76-77
A physical injury
174 I think it is more probable than not that the plaintiff suffered a soft tissue injury to his lower back. It is not clear whether the soft tissue injury has persisted to the present time.
175 I am fortified in reaching that conclusion because Dr Woo was initially convinced that the plaintiff had suffered some abnormality in his spine which led him to refer the plaintiff to have radiological investigations and referral to Mr Aliashkevich and Dr Gassin and to prescribe him medication for pain relief.
176 The opinions of Mr Aliashkevich and Dr Gassin suggest that the plaintiff has suffered a physical problem causing the pain about which he was complaining. Similarly, the opinions of Dr Weekes, Dr Thomas, Dr Brasier and Mr Speck point to the same conclusion. I am cautious in placing too much weight on their opinions because they were not provided with a particularly accurate account of the force involved in the transport accident; however, and despite that apparent deficiency, their opinions nonetheless demonstrate that the transport accident was capable of causing a physical injury.
177 I think it is more probable than not that the soft tissue injury has resulted in the plaintiff suffering the psychiatric condition diagnosed by Dr Gelman even though the soft tissue injury might be described as being minor. Dr Gelman explained how that occurs very well. He said it was not uncommon for someone who has had an accident to have a catastrophic type of response to it. The body can develop chronic pain and a chronic depressive response which is disabling and which results in a great deal of ongoing suffering and disability which can be treatment resistant. Dr Woo and Dr Ingram said that was their experience as well.
178 Dr Elder has expressed a diametrically opposite view. There are a number of reasons why I reject Dr Elder’s evidence. Firstly, his conclusion that the mechanism of injury means that no physical injury could have resulted is contrary to a body of evidence which I accept to be probable. Secondly, his observations of the bizarre behaviour of the plaintiff in his examination rooms is inconsistent with the manner in which the plaintiff behaved with all of the other medical assessors, whether they be treating medical practitioners or whether they were engaged on a medico-legal basis. It is difficult to explain why the plaintiff behaved that way, but I do not accept that it is evidence which can overwhelm the larger body of evidence which demonstrates that the plaintiff behaved very differently when examined by a number of medical assessors who are, broadly speaking, within the same specialist area as Dr Elder.
The psychiatric condition
179 The overwhelming body of evidence comprising Dr Woo, Ms Durmaz, Dr Gelman, Dr Piperoglou, Dr Ingram and Dr Weissman support the conclusion that the plaintiff has suffered a very dramatic, serious and very disabling psychiatric condition. I accept the diagnoses each of them have made, and in particular, the diagnosis made by Dr Gelman.
180 Furthermore, the overwhelming body of that evidence discloses that it is more probable than not that the plaintiff will continue to suffer the psychiatric symptoms which underwrite Dr Gelman’s diagnosis permanently. It also supports the conclusion that the plaintiff will require continuing psychiatric treatment, including the prescription of the raft of medication which is currently being prescribed for treatment of pain, but principally to treat the psychiatric symptoms which plague him. It also supports the conclusion that it is more probable than not that the plaintiff is permanently incapacitated for work, and that is likely to remain so for the balance of his working life.
181 There is also some support for those conclusions in the opinions of Dr Weekes, Dr Thomas and Dr Brazier, who referred to a psychological/ psychiatric component in the diagnosis each of them made. Dr Weekes referred to chronic myofascial pain. Dr Brazier to the requirement for psychiatric and psychological support, and Dr Thomas referred to the plaintiff suffering from a significant psychiatric condition which he describes a Somatic Pain Symptom Disorder.
182 Professor Doherty has expressed a diametrically opposite view. I reject his evidence for very much the same reasons why I rejected the evidence of Dr Elder. Firstly, his conclusion that the transport accident was minor is contrary to the body of evidence which I accept as probable. Secondly, his conclusion relevant to the plaintiff’s prior psychiatric condition is also contrary to the body of evidence which I accept as probable. Thirdly, although his view of the plaintiff’s reliability is also contrary to the body of evidence which I accept as probable, Professor Doherty’s approach to assessing the plaintiff was uncompromising and dogmatic. I do not accept that his evidence can overwhelm the larger body of evidence which I accept, and in particular, the evidence of Dr Gelman and Dr Ingram, who I found to be very impressive witnesses whose evidence I accept without exception.
Damages
Pain and suffering and loss of enjoyment of life
183 Apart from the prior psychiatric conditions which troubled him in 2006, 2008 and 2013, and the intermittent lower back pain, the plaintiff appears to have an unblemished working record. I think it is more probable than not that the plaintiff placed a great deal of value personally in being a well-motivated hard-working man and had a sense of great personal pride in his working reputation as he saw it.
184 The major injury suffered by the plaintiff is undoubtedly the psychiatric condition diagnosed by Dr Gelman, but he complains of lower back pain and pain radiating into his left leg which, according to the evidence, I accept, is no less real to him and no less disabling than if it were caused by identifiable pathology.
185 One only has to resort to the plaintiff’s evidence and the histories of his symptoms recorded by Dr Woo, Mr Durmaz, Dr Gelman, Dr Piperoglou, Dr Ingram and Dr Weissman to see just how severely the impact of the plaintiff’s psychiatric condition has been on his capacity to function even at a relatively basic level.
186 The major pain and suffering and loss of enjoyment of life deficits suffered by the plaintiff which I accept he has suffered are –
· Psychiatric condition which is resistant to treatment
· The need for a very significant volume of medication to treat both pain and his psychiatric condition.
· The need in the past for hospitalisation, and perhaps further hospitalisation.
· The need for transcranial magnetic stimulation treatment, and perhaps the more serious electroconvulsive treatment.
· Interference with memory, concentration, motivation and energy levels.
· Interference with sleep.
· Interference with his capacity to undertake ordinary movements, such as sitting, standing and otherwise being mobile.
· The need to lie down on the floor to gain relief from lower back pain.
· Interference with his ability to drive a car, to undertake general household duties and gardening.
· Interference with his social life and marriage.
· Persistent physical pain, requiring significant prescription of painkilling medication
187 The word catastrophic has been used to describe the impact upon him, and I think that is apt in the description of the extent to which the plaintiff has been brought from that well motivated hard-working man to a shadow of what he once was. I think it is more probable than not that he will continue to require psychiatric treatment for psychiatric symptoms which are treatment resistant to maintain him at his present level of functioning. I think it is more probable than not that he will require the levels of medication which is currently being prescribed, and I accept that that medication is being prescribed by Dr Woo and Dr Gelman. both of whom I accept are competent and capable and have no doubt given proper consideration to the medication which the plaintiff requires to treat him. I accept that it is more probable than not that the plaintiff has not been able to work since the occurrence of the transport accident to the present time and it is more probable than not that he will remain incapacitated for any work for the balance of his working life.
188 The foregoing paints a picture of the destruction of a major part of the plaintiff’s life, and production of very significant pain and suffering and very significant loss of enjoyment of life, calling for an assessment of damages for pain and suffering and loss of enjoyment of life which are fair and reasonable. I think the sum of $300,000 is a fair and reasonable reflection of the nature and extent of the plaintiff’s pain and suffering and loss of enjoyment of life.
Past loss of earnings
189 I think it is more probable than not that the plaintiff has been totally incapacitated for his usual occupation, or for any alternative or suitable employment, since the occurrence of the transport accident and to date.
190 The plaintiff engaged Mr Plover of Cumpston Sarjeant, consulting actuaries, to make a calculation of the plaintiff’s past and future loss of earnings and past and future loss of superannuation benefits. He undertook that task and provided a report dated 27 February 2020.[135] I have examined his methodology in calculating the plaintiff’s economic loss. His methodology was not the subject of any significant submissions by the defendant. I accept his methodology, and the calculations that he has made based upon that methodology.
[135]Exhibit HH
191 Mr Plover calculated the plaintiff’s past loss of earnings at $298,400 based upon an assumed pre-injury average earnings of $95,000 reducing the past loss by the first eighteen months which cannot be claimed. I will award the plaintiff the whole of that sum.
192 Mr Plover made a calculation of the plaintiff’s past loss of superannuation in parts 3.1, 3.2 and 3.3 of his report. He calculated the plaintiff’s past loss of superannuation at $38,600. I will award the plaintiff the whole of that sum.
Future loss of earnings and earning capacity
193 I think it is more probable than not that the plaintiff has been totally incapacitated for his usual occupation or for any or alternative or suitable employment, from to the likely cessation of his working life at age sixty-five years.
194 Mr Plover calculated the plaintiff’s future loss of earnings based upon an incremental rise in the plaintiff’s income to $107,400 gross per annum, and calculated the relevant multiplier and the net earnings against which the multiplier would be used in calculating a total future loss of earnings of $672,200 subject to reduction for vicissitudes. I will award the plaintiff the whole of that sum, less a reduction for vicissitudes of twenty per cent.
195 The calculation of vicissitudes is undertaken by having regard to the contingencies that may influence the plaintiff’s future capacity for employment. The calculation of the reduction for vicissitudes is not a scientific exercise. In the plaintiff’s case, he has a past history of a psychiatric condition which Dr Ingram commented upon that the plaintiff has some predisposition to the development of psychiatric symptoms. Additionally, the plaintiff has suffered intermittent lower back problems which required the use of some medication.
196 The occurrence of these vicissitudes are real in the plaintiff’s past, and would have continued to be real and would pose a risk to the plaintiff of interference with his capacity for employment before he reached retirement age. Unlike other cases where the risks are not as obvious, the fifteen per cent contended for by the plaintiff might be a reasonable reduction for vicissitudes, but I think this case is different for the reasons I have outlined.
197 A reduction by twenty per cent reduces the plaintiff’s future loss of earnings from $672,000 to $537,600.
198 Mr Plover made a calculation of the plaintiff’s future loss of superannuation of $100,100. It also requires a reduction for the same reasons, reducing it to $80,080.
Judgment
199 I will enter judgment for the plaintiff for the damages I have assessed subject to a review by the plaintiff and the defendant of an adjustment (if any is applied for) for a variation in the calculations damages. Mr Plover’s calculations of past losses are up to 8 May 2020, and his calculation of future losses commence from that date. I have not made any adjustment in those calculations to the date of the delivery of these Reasons for Judgment.
- - -
0
0
0