Duman v Transport Accident Commission
[2018] VCC 1358
•7 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-06030
| DAVUT DUMAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 August 2018 | |
DATE OF JUDGMENT: | 7 September 2018 | |
CASE MAY BE CITED AS: | Duman v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1358 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – ss93(4) and (17) – impact with rear of plaintiff’s stationary vehicle at traffic lights – comparatively minor vehicular damage – injury to the low back and mental or behaviour disturbance or disorder – primarily reliance upon paragraph (c) of the definition – Richards v Wylie – plaintiff under considerable stress at the time due to behaviour of youngest daughter who had become radicalised and eloped to Syria – state of plaintiff’s mental health resulting in periods of hospitalisation – whether statutory tests and particularly that in relation to paragraph (c) of the definition satisfied – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr J Angenent | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G Lewis QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986 (hereinafter referred to as “the Act”). In bringing his claim, the plaintiff relies upon paragraphs (a) and (c) of the definition of serious injury found in s93(17) of the Act. However, at the outset it was made clear by counsel for the plaintiff that reliance was placed “first and foremost” upon paragraph (c) of the definition. I would refer to Transcript (hereinafter referred to as “T”) 2. The physical injury involved is alleged to be to the low back.
2 For the purposes of Richards & Anor v Wylie [2000] VSCA 50, I say at the outset that the evidence supporting the proposition that the plaintiff suffers from an injury which falls within paragraph (c) is far stronger than that which supports the paragraph (a) argument. Indeed, the evidence supporting the paragraph (a) aspect of the case is flimsy to the point of being almost non-existent.
3 There is no argument but that the plaintiff was involved in a transport accident on 25 November 2014, hereinafter referred to as “the accident”. The accident occurred in St Kilda Road, St Kilda, at its intersection with Alma Road. The nature and the force of the accident shall be discussed subsequently, but certainly it would be fair to say that it was not a major collision. The allegedly minor nature of the impact has received considerable attention during the preparation and conduct of the application. The mental or behavioural disturbance or disorder relied upon by the plaintiff could be described as a depressive disorder associated with the physical injury to the low back. The plaintiff must establish that the consequences of the mental injury are “severe”, as opposed to “serious” for the physical injury. The burden which the plaintiff is obliged to discharge is in accordance with the test set out in Humphries & Anor v Poljak [1992] 2 VR 129. Specifically in relation to the paragraph (c) injury, reference is made to Mobilio v Balliotis [1998] 3 VR 833.
4 Mr J Mighell QC with Mr J Angenent of Counsel appeared on behalf of the plaintiff. Mr G Lewis QC with Ms D Manova of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. The balance of the evidence was documentary in nature, including surveillance material, and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background prior to the accident
5 The plaintiff is aged 51 years, he having been born in Turkey in August 1966. He migrated to Australia with his family when he was approximately four years old. He is a married man with three daughters, two of whom reside in Australia. As shall be discussed, the youngest daughter became radicalised and moved to Syria in order to marry an Islamic State fighter. This is a subject which received considerable media attention. Effectively it occurred shortly prior to the accident and its role in the plaintiff’s mental health was the subject of a considerable number of questions.
6 Returning to the plaintiff’s background, it would appear that he was educated in Melbourne to Year 10 level and then immediately joined the workforce. In 1983, he commenced work with a company called ABM Plastics and worked for it for some 15 years, until taking a redundancy in 1998. Thereupon, he commenced employment with a company that ultimately became Amcor and was engaged in that employment for a further 12 years. He claims in his earlier affidavit of 26 May 2017 to be an extremely experienced plastics manufacturer and that would appear to be the case. In 2010 he commenced employment with a company called Mega Plastics and was still so employed, and on a salary of almost $100,000 per annum, when the accident occurred on 25 November 2014. He has not engaged in employment since.
(b) The plaintiff as a witness
7 As is evident, this is an unusual case. A person with what would appear to be an excellent work history, for all intents and purposes uninterrupted for a period in excess of 30 years and in a well-paid position, has not worked since a traffic accident which, at face value, would appear to be of minor proportions. In such a situation, and where the injury principally relied upon is mental in nature, the impression made by such a plaintiff is of considerable importance and perhaps more so than in a case where a more clearly defined injury has been suffered. The impression which I have formed is that the plaintiff was an honest witness who was doing his best to give truthful answers to the questions put to him.
8 I am reinforced in this conclusion by the opinions of some of the medical practitioners who have treated the plaintiff or examined him for medico-legal purposes. Dr Mat Gelman, consultant psychiatrist, who has treated the plaintiff, stated in his report of 25 August 2015 that the plaintiff’s condition appeared consistent with the stated cause, his pain appeared plausible, and that there did not appear “to be any factitious exaggerated or malingered components”. In a subsequent report of 22 April 2018, Dr Gelman’s opinion was that the plaintiff’s condition appeared consistent with the stated cause and his pain appeared very real and plausible, repeating that there did not appear to be any exaggeration or malingering. His treating psychologist, Ms Semra Durmaz, in a report of 14 March 2018, described the plaintiff as a cooperative person who was overwhelmed by both physical and psychological changes and the impact of these on his lifestyle since his injury. Dr Nicholas Ingram, consultant psychiatrist, examined the plaintiff on two occasions at the request of the defendant, and in his recent report of 3 April 2018 he expressed the opinion that there was no evidence that the plaintiff was consciously exaggerating his pain. Indeed, as shall be discussed, Dr Ingram diagnosed the plaintiff as suffering from a Major Depressive Disorder.
9 Further, I am not of the view that the surveillance material damaged the plaintiff’s credit. When walking, the plaintiff was seen to be using a walking stick at times and at other times, demonstrably limping. I also note that Dr Ingram, examining on behalf of the defendant, viewed the earlier surveillance video and was not of the view that it was of any great significance. Dr David Elder, occupational physician, was of a different opinion, but I agree with Dr Ingram. In his affidavit of 26 May 2017, the plaintiff swore that he often relied upon a walking stick due to referred pain to the left leg, but tries to walk and engage in activities without the use of the stick, although this is not always possible.
10 In summary, I accept the submission of Mr Mighell that the plaintiff should be accepted as an honest witness who made various concessions against interest.
(c) The state of the plaintiff’s health prior to the accident
11 The state of the plaintiff’s health prior to the accident is also a contentious matter, concerning which there was considerable cross-examination. There is no doubt but that the plaintiff had been referred by his then general practitioner, Dr Haldun Tokman, to a psychologist, Mrs Gul Selvi, in early 2013. This seems to have been in the context of the attitude and behaviour of his children towards his second wife. In this regard, I note that the clinical notes of Mrs Selvi indicate that, on a date which is hard to read but which would appear to be 13 June 2013, the plaintiff stated that he had been feeling much better. Testing appears to have revealed that his depression was mild, his anxiety normal and his stress level normal. By 3 August 2013, he was again feeling much better and would seek support if he felt it necessary. That seems to have marked the end of any treatment prior to the accident by Mrs Selvi.
12 In cross-examination, it was put to the plaintiff that he had not mentioned any of this in his affidavits. His response was that he “completely forgot” ─ see T31. As pointed out by Mr Mighell in his closing address, in his earlier affidavit of 26 May 2017, the plaintiff had sworn that he had suffered from mild depression prior to the transport accident and especially at the time that his first marriage ended.
13 The bottom line is that I accept that, in the first half of 2013, the plaintiff did suffer from depression and was referred accordingly by Dr Tokman to Mrs Selvi. I also accept that, by mid-2013, he was much better. It is to be remembered that he appears to have continued working until the accident on 25 November 2014. The clinical notes put in evidence would also indicate that the plaintiff sought medical treatment for depression on a few occasions between 2006 and 2008.
14 In addition, it is not contested but that the plaintiff suffered from occasional low back pain prior to the accident. However, this does not seem to have interfered to any major degree with his carrying out his employment duties. On 22 August 2014, he notified his employer that he was going home early because his back was playing up and was very sore. It is apparent that he attended a chiropractor. I note that, to Dr Lawrence Woo, who has been the plaintiff’s treating general practitioner since the accident, he gave a history that, prior to it, he would get minor low back ache which would go away with a heat pack and Voltaren gel. He stated this pain would come on once a month. He admitted that he had such pain, but that it was not severe enough to stop him working – see T15. In any event, it is primarily paragraph (c) of the definition upon which the plaintiff is relying.
15 The radicalisation and effective elopement of the plaintiff’s youngest daughter immediately prior to the accident are matters which potentially are relevant to his pre-accident health. The impact of these shall be discussed subsequently.
(d) The accident, its treatment and diagnosis
16 There is no argument but that a transport accident occurred on 25 November 2014. It is also scarcely arguable but that the dimensions of this accident were not great. The plaintiff and his wife were stationary in their vehicle at traffic lights in St Kilda Road. Behind them was a taxi driven by Mr Yuri Kaimi. He claims to have been immediately behind the plaintiff’s vehicle and to have been stationary, awaiting the traffic light’s turning to green. Mr Kaimi’s vehicle hit the back of the plaintiff’s car, on which there was a tow bar. I accept that this collision occurred at low speed, but with sufficient force for the tow bar to pierce the number plate and to drill or make a round hole in that section of the bumper bar to which the number plate had been affixed. The total cost of repairs to the plaintiff’s vehicle was $2,124.35. Whilst there was some police investigation into the accident, no further action was taken by them, apparently on the basis of the minor nature of the collision.
17 Immediately following the accident, the plaintiff claims to have experienced significant and sharp burning pain in his back, with referral into his left hip and leg. He was transported to the Alfred Hospital by ambulance. The ambulance report refers to the low speed at which the taxi was commencing to travel, also recording that the plaintiff and his wife, whilst cooperative, were very emotional at the scene of the collision. He was conveyed to the Alfred Hospital where he appears to have been an inpatient for approximately a day and a half. A CT scan of the lumbar spine was carried out at the hospital. This essentially revealed multi-level intervertebral disc degenerative disease, but no fracture or malalignment. Investigations of the chest and pelvis essentially revealed no relevant abnormality.
18 On 29 November 2014, the plaintiff attended upon Dr Woo, whose rooms are in Springvale South. Dr Woo took a history of the accident and the fact that the plaintiff had been walking with crutches at the Alfred Hospital, but since discharge he walked with the aid of a single crutch.
19 Following the plaintiff presenting to Dr Woo again on 2 December 2014 with persistent and severe lower back pain, further x-rays were organised. Apart from the radiologist recording that there was a lack of lumbar lordosis seen, this most likely being due to muscle spasm, no relevant abnormalities were detected. In his report of 3 August 2015, Dr Woo recorded that the plaintiff had been given a certificate of incapacity and had not been able to work since the accident. He was also prescribed Targin and Celebrex. The plaintiff returned to see Dr Woo on four occasions between 18 December 2014 and 17 February 2015. On each occasion, he complained of severe pain in the lower back and left leg. Because he also appeared to be very depressed, Dr Woo referred the plaintiff to a psychologist, Mrs Semra Durmaz.
20 Dr Woo has recorded that, having seen the plaintiff again in March, the plaintiff attended on 20 April 2015 with the same severe lower back and left leg pain and was walking with the help of a walking stick. Dr Woo referred the plaintiff to a pain specialist, Dr Robert Gassin, and, as the plaintiff’s depression was not showing any sign of improvement, to a psychiatrist, Dr Mat Gelman. The plaintiff’s condition, both in relation to physical complaints and depression, seems to have continued through July and August 2015. At the conclusion of his report of 3 August 2015, Dr Woo stated that the plaintiff had suffered mechanical injury to his lower back with radiation of pain down the left leg, but also had a significant degree of chronic pain syndrome, together with post-traumatic anxiety and depression. He noted that the plaintiff’s outside and sporting activities had been greatly affected and that he was unable to do any house cleaning, requiring assistance in this regard. He did not view the plaintiff’s condition as having stabilised.
21 Dr Woo reported again to the plaintiff’s solicitors on 7 February 2018. This report covered developments since the earlier report of 3 August 2015. In this comparatively recent report, he stated that the plaintiff’s conditions had remained the same since the previous medical report. The plaintiff continued to complain of persistent moderate to severe lower back pain. His depression had remained severe and he had been seeing his psychiatrist, Dr Gelman. An MRI of the lower back had been performed on 16 February 2016. The conclusion of the radiologist had been that it was a normal MRI. When Dr Woo had seen the plaintiff on 30 June 2016, he was still suffering from the same depression as he had earlier reported. This had been particularly so on 12 March 2016, when he was very stressed and depressed. These complaints were in addition to those of back pain. Dr Woo referred the plaintiff to the psychologist, Mrs Durmaz, for treatment. Things seem to have remained the same through the middle of 2016. By this time, the plaintiff had been placed on a substantial range of medications for pain and depression, this range including Lyrica, Cymbalta, Valium, Largactil, Actilax and Stilnox. As far as I can ascertain from the doctor’s summary of medication, all of these were to be taken daily, although at different times of the day.
22 On 5 January 2017, the plaintiff’s depression was noted as being very bad. On 11 May 2017, he was complaining of pain and depression and Pristiq and Catapres were added as medications. When he attended on 18 January 2018, the plaintiff had severe depression and had been under treatment from Dr Mat Gelman, psychiatrist. The plaintiff’s back pain had remained the same and, on examination, he appeared very depressed and to be in pain. The conclusions reached by Dr Woo and as contained in his report of 7 February 2018 included that the plaintiff had suffered a mechanical injury to the lower back as a direct result of the car accident. That alone permanently incapacitated him for any type of work in which he had experience. There had been adequate treatment involving conservative measures. Dr Woo commented that the plaintiff also had suffered severe and treatment-resistant post-traumatic depression and reactive depression. He had been adequately treated by a psychiatrist and psychologist with no improvement. In the opinion of Dr Woo, the plaintiff is likely to be depressed for a long time. Bearing in mind his depression alone, the plaintiff is permanently incapacitated for any type of work and further treatment would involve a psychologist and psychiatrist. However, the plaintiff’s conditions had stabilised. His social life, including his relationship with his wife, had been greatly affected. In the opinion of Dr Woo, the injuries related to the accident, namely depression and back pain, had had a profound effect on the plaintiff’s social life and his life in general.
23 Dr Mat Gelman, the consultant psychiatrist who has treated the plaintiff, has provided three reports, the earliest of which is dated 25 August 2015. Dr Gelman took a detailed history, which, in addition to references to constant and stabbing pain, included a statement that the plaintiff had been depressed since the accident and had become reclusive and sedentary, apart from there being interference with his energy, motivation, concentration and memory. There had been suicidal ideation, but at that time the risk appeared low. Dr Gelman thought that the plaintiff’s personality appeared to have been obsessional, particular in terms of his work focus and bearing in mind the long hours which he had worked since he was 17 years of age. Dr Gelman was of the view that the plaintiff’s condition appeared consistent with the stated cause. He diagnosed a Major Depressive Disorder, a Chronic Pain Disorder and enduring personality damage, all of these conditions being severe and resistant to treatment. He considered the prognosis to be poor. He believed that the plaintiff was not employable in any capacity for the foreseeable future and that his quality of life had been extremely diminished. He thought that the plaintiff’s degree of disability was severe, but that the injury had not stabilised and it was not possible to say when such stabilisation would occur.
24 Dr Gelman provided a brief report to the plaintiff’s solicitors on 8 June 2016. He noted that the plaintiff had recently had a six week psychiatric admission that was initially funded by the defendant. The plaintiff continued to be considerably depressed, anxious and in severe pain. Dr Gelman expressed the opinion that plaintiff’s condition was entirely caused by the motor vehicle accident and had nothing to do with his family circumstances and in particular with the path that the plaintiff’s daughter had taken. This is a reference to her having become radicalised and departing to Syria. I shall return to this. In any event, Dr Gelman was of the view that, whilst the plaintiff had been very disturbed by these events, he had grieved and moved on. Dr Gelman thought that what had occurred with the daughter had no relevance to the plaintiff’s psychiatric condition, which appeared to be associated only with the motor vehicle accident.
25 Dr Gelman reported for a third time on 22 April 2018. He recounted the history, including the observation that the plaintiff had been depressed since the accident and had become reclusive and sedentary. At times he had been actively suicidal. He had always worked long hours. Dr Gelman stated that there appeared to have been a profound deterioration in the plaintiff’s personality and functioning since the accident. He again stated that the plaintiff’s condition appeared consistent with the stated cause and that there did not appear to be any fictitious exaggeration or malingering. He also noted that, in his absence, the plaintiff had been treated by Dr Michael Piperogolu as an inpatient at Epworth Hospital, with Dr Piperogolu apparently being “struck by how authentic, consistent and severe was the injury and associated symptoms and disability.”
26 Dr Gelman made identical diagnoses to those made earlier and repeated that the prognosis appeared to be poor in that there had been only very slow and slight response to varied intensive treatments. He regarded the plaintiff as being fully incapacitated, also observing that the plaintiff had “too severe and disabling and distressing symptoms to be able to be employable in any capacity in the foreseeable future.” He remarked that the plaintiff’s quality of life was extremely diminished and that he was in need of further intensive treatments from his general practitioner, psychologist and psychiatrist. Dr Gelman concluded by stating that the plaintiff’s degree of disability was severe. The injury is stable. The plaintiff “… is always depressed in affect and preoccupied, in obvious discomfort and pain and distress”. Dr Gelman thought that the anticipated period of incapacity was likely to be long term.
27 Dr Robert Gassin, musculoskeletal and pain physician, saw the plaintiff only once, that being in relation to further management of his low back and left leg pain. That consultation occurred on 7 May 2015. At this time, the plaintiff’s current medications were Targin, Tramal, Celebrex, Endep, Mertazapine and Lyrica, all of these being taken daily. Amongst the history taken by Dr Gassin was that the plaintiff had been a “workaholic”, having previously only taken time off for minor injuries and had taken no extended time off work since the age of seventeen. Dr Gassin wished to perform a left sacroiliac joint injection of cortisone and to involve the plaintiff in a pain rehabilitation program. He thought that the plaintiff had no capacity for his pre-injury employment or any other employment of a physically demanding nature and was unsure whether he would even cope with sedentary work. His plan to perform diagnostic and therapeutic blocks in an attempt to better define the injury had not been possible, due to a rejection of this by the defendant. Dr Gassin noted that the plaintiff had also developed significant psychological distress as a result of his physical pain. He expected the plaintiff to suffer ongoing pain and associated disability as a result of the injury for the foreseeable future. He considered the plaintiff to have no capacity for work and that his quality of life had diminished significantly due to the injuries sustained as a result of the accident. He thought that diagnostic blocks along with implementation of pain management strategies should be the focus. Given that the plaintiff’s condition had not stabilised as at the time of consultation, he could not provide any opinion in relation to the period of incapacity.
28 As has been referred to above, Dr Michael Piperogolu also treated the plaintiff, this being on occasions when Dr Gelman was not available. This occurred when the plaintiff was an inpatient at Epworth Mental Health Unit, Camberwell. The first such admission was from 15 April 2016 to 16 May of that year. The second was from 16 August 2016 to 9 September.
29 In relation to the earlier admission, Dr Piperogolu, reporting on 9 December 2016, stated that this was for worsening of the transport accident related Major Depressive Disorder, with associated chronic pain in the lower back. The plaintiff had suffered worsening of the depression and was considered to be a danger to himself from suicidal ideation. During his weeks as an inpatient, his condition gradually improved with supportive psychotherapy, group sessions, review of his psychotropic medication regime and the like. During this time there was one episode of deliberate self-harm in which the plaintiff tried to cut his wrists, this followed his being informed that the defendant would no longer fund his psychiatric treatment and medication.
30 The second admission also resulted from a worsening of the plaintiff’s depressive symptoms, associated with suicidal ideation, ruminations about why the accident had happened to him, how it had ruined his life and the like. Dr Piperogolu organised for the plaintiff to be assessed by another psychiatrist, Dr Peter Farnbach, so as to obtain a second opinion. His diagnosis seemed to have coincided with that of Dr Piperogolu, although he recommended a course of transcranial magnetic stimulation, described by Dr Piperogolu as a newer treatment for depressive symptoms associated with anxiety. This was performed, but did not help. In the opinion of Dr Piperogolu, the plaintiff requires ongoing psychiatric care as provided by Dr Gelman, along with the continuation of the psychotropic medication regime. Further inpatient treatment could be required. In the opinion of Dr Piperogolu, the need for ongoing psychiatric treatment was directly related to the transport accident and the injuries receive therein.
31 Dr Piperogolu did not believe that the situation with the plaintiff’s youngest daughter impacted the plaintiff’s psychological state to the extent that the plaintiff required treatment. Apparently the plaintiff found out about the situation relating to his daughter only four or five days prior to the motor vehicle accident, but in the opinion of Dr Piperogolu this was a temporary aggravation to the psychiatric injury suffered as a result of the transport accident. Having spoken to the plaintiff a number of times when he was an inpatient, Dr Piperogolu reached the conclusion that the plaintiff had come to terms with the situation concerning his daughter, had grieved appropriately and now believed that there was nothing more that he could do. As reported in the press, he was acutely distressed at the time regarding his daughter and her whereabouts. However, in the opinion of Dr Piperogolu, this had no relevance to his current situation or the transport accident related nervous disorder. Initially, the plaintiff did not tell either Dr Gelman or Dr Ingram about it because of social embarrassment as to what she had done and because it was something that he believed he had dealt with, this being as opposed to being deceitful or not telling the truth. When Dr Piperogolu last saw the plaintiff, he did not consider that he had any capacity for a return to work. In his report, Dr Piperogolu also expressed the opinion that such incapacity was wholly related to the transport accident and the psychological injuries, including chronic pain, suffered therein.
32 The plaintiff’s solicitors have also obtained a report from Mrs Semra Durmaz, psychologist, who has treated the plaintiff. This report is dated 14 March 2018. Mrs Durmaz took a detailed history, including matters related to the sudden departure of the plaintiff’s youngest daughter to Syria. Mrs Durmaz noted that the plaintiff continued to suffer from severe levels of anxiety and depression, experiencing such symptoms as sleep deprivation, social isolation and withdrawal, loss of self-esteem and the like. He presented as a cooperative person overwhelmed by the impact of physical and psychological changes. Mrs Durmaz performed various tests, concluding that the plaintiff had developed clinically significant emotional and behavioural symptoms in response to his injury. She referred to the fact that Cognitive Behavioural Therapy strategies had been utilised for chronic pain management, for rebuilding of his confidence, identification of his strengths and the like. She referred to two suicide attempts and considered him to be still suffering from debilitating symptoms of anxiety and depression.
33 In relation to the plaintiff’s physical injury, she could not comment, but noted that he had stopped using his walking stick since 2017, but still complained about ongoing pain. His prognosis in relation to his psychological injury seemed poor, and she was of the opinion that, from a purely psychological point of view, he had no work capacity for the foreseeable future. Mrs Durmaz expressed the opinion that the plaintiff had been suffering from a Major Depressive Disorder which developed as a reaction to his case “being rejected”. In relation to what had occurred with his daughter, that had apparently provoked the original referral. However, the plaintiff had received help to improve his thoughts and feelings in that regard. He had accepted that his daughter was an adult and had made her own decision. He became more relaxed after his daughter had contacted him about her safety and when he found out that she had had a baby and was generally happy with her choice. His psychological condition related to the accident had worsened after his initial appointment in March 2015. His quality of life had been negatively affected. Mrs Durmaz considered that the plaintiff’s psychological difficulties remained chronic, despite his receiving intensive psychiatric and psychological treatments. She thought that he needed further psychological support in order to change his negative way of thinking, along with regular reviews of his medication by his psychiatrist. She considered that the plaintiff’s psychological condition had stabilised.
34 A report from Dr Clayton Thomas dated 22 March 2018 is included as a report from someone who has treated the plaintiff. Dr Thomas is a consultant in rehabilitation and pain medicine. However, upon reading his report, it would appear that, prior to an examination on 19 March 2018, he had only seen the plaintiff when he had accompanied his wife to an appointment with Dr Thomas. In any event, on 19 March 2018, he examined the plaintiff. He took an appropriate history. As at the date of that examination, the plaintiff had predominantly lower back pain. The plaintiff told Dr Thomas that he generally walked with a single point stick when outdoors, although he tried to avoid this and to only use it when walking longer distances. He was able to drive locally, although he avoided driving for prolonged periods of time. Dr Thomas’s examination and assessment was directed more to physical problems. However, he noted that the plaintiff’s emotional distress had acted as “a fairly substantial pain magnifier”. He diagnosed symptomatic spondylosis of the lumbar spine, but in the presence of high emotional distress and with back pain radiating to the left buttock and hamstring area. Dr Thomas thought that this was an aggravation of a previous condition. He also noted the condition was one where pain and emotional distress have remained as a difficulty for the plaintiff. He was on opiate analgesia. In the opinion of Dr Thomas, the plaintiff had no work capacity. However, it must be said that Dr Thomas was reviewing the totality of the situation, combining the plaintiff’s physical state with his emotional state. Dr Thomas anticipated a prolonged period of incapacity, although mentioning a pain management program which might give the plaintiff more information about how to manage his condition and live with it in the future.
35 At the request of his solicitors, the plaintiff has also been examined for medico-legal purposes. Dr Gavin Weekes, pain specialist, saw the plaintiff on 4 May 2016. To Dr Weekes, the plaintiff described constant and severe back pain with some radiation down the left leg. Various activities aggravated it. He was also complaining of some neck pain. Dr Weekes diagnosed lumbosacral spondylosis with secondary chronic myofascial pain and believed that the plaintiff’s presentation and condition were consistent with the stated cause, namely a motor vehicle accident. In this regard, the plaintiff’s history to Dr Weekes included the fact that there was minimum damage to his car, although he described the impact experienced as being quite severe. Dr Weekes was aware of the fact that the plaintiff had been diagnosed as being depressed and having an Adjustment Disorder. The diagnosis of Dr Weekes was of lumbosacral spondylosis with secondary chronic myofascial pain. He believed the plaintiff to be fully incapacitated for his pre-injury employment and, having regard to his educational and occupational background, thought that the plaintiff would find it difficult to find employment elsewhere. He also thought that the plaintiff’s qualify of life had been severely reduced. He believed the plaintiff would benefit from a multidisciplinary outpatient or inpatient pain management program. He also suggested that the plaintiff see an occupational specialist. He considered the prognosis to be guarded.
36 Dr Weekes saw the plaintiff again on 28 February 2018, reporting on that day. He took a similar history, but also noted that, since the last time that he had seen the plaintiff, the plaintiff had been an inpatient at the Epworth Hospital under the care of a psychiatrist on two occasions. The plaintiff described his back pain as constant and severe, with radiation down the left leg to above the knee. He also complained of some neck pain. Dr Weekes noted that the plaintiff’s current medication consisted of Tramadol, Targin, Lyrica, Pristiq, Catapres, Largactil and Stilnox. The working diagnosis of Dr Weekes was of cervical and lumbar spondylosis with associated myofascial pain. He noted that there were adverse effects upon the plaintiff’s quality of life and believed that continued support by a chronic pain specialist would be beneficial. However, he believed that the plaintiff’s overall prognosis was poor and that he was unlikely to be without pain for the foreseeable future. He considered the plaintiff’s injury to have stabilised and that the anticipated period of incapacity was for the foreseeable future.
37 The plaintiff’s solicitors organised for the plaintiff to be seen by Dr David Weissman, consultant psychiatrist, on two occasions. The earlier of these was on 20 April 2017. He took an appropriate history. He noted that the plaintiff was seeing Dr Gelman approximately every two to four weeks and Mrs Durmaz on a fortnightly basis. Dr Weissman also took a history of the plaintiff being admitted twice to the psychiatric ward at the Epworth Clinic in Camberwell, these admissions being in April/May 2016 and in August of the same year. There had been self-harm. He was still having some suicidal thoughts. The plaintiff said that his daughter, who had gone to Syria, was lliving in that area and was all right and that was enough for him. Dr Weissman considered the matter to be a very complex and complicated case. He gained the impression that the plaintiff was being guarded or evasive in relation to the daughter who went to the Middle East. This raised some doubts about his accuracy and reliability. He thought that the issue of the daughter may contribute to a degree to the plaintiff’s depression and anger, and that the anger, in particular, may be displaced onto the accident and the defendant. Dr Weissman formed the view that the situation in relation to the daughter does cause the plaintiff unrelated psychosocial stress. He thought it likely that the issue did contribute to some of the plaintiff’s current depression and perhaps some of his Chronic Pain Disorder. He thought that the amount of unrelated impairment was something in the order of 5 per cent.
38 Dr Weissman was also of the view that the plaintiff’s disability appeared to be both physically and psychiatrically based. The physical and the psychiatric were tightly intertwined because of the probable additional diagnosis of a Chronic Pain Disorder/Somatic Symptom Disorder. Overall, he thought that the plaintiff was suffering from mild, classical and discernable, chronic post-traumatic stress and anxiety symptoms and traumatisation features, but that he did not have a full-blown chronic Post-Traumatic Stress Disorder. Dr Weissman thought that the plaintiff was suffering from a moderate mixed reactive chronic depressive and anxiety syndrome. He also thought that the plaintiff had a chronic Major Depressive Disorder with anxiety of moderate intensity or severity. The chronic Major Depressive Disorder was consequential to the accident, although with some contribution from pre-existing and unrelated factors. He also thought that the plaintiff had developed a Chronic Pain Disorder. He was of the view that the plaintiff’s psychiatric symptoms had stabilised and Dr Weissman made a Whole Person Impairment in accordance with the relevant guides. I might say that parts of Dr Weissman’s report were addressed to this issue. In any event, he advised ongoing regular treatment from both the plaintiff’s treating psychiatrist and his psychologist. Overall, his view was that the plaintiff appeared to be totally incapacitated for all work. He described the psychiatric prognosis as, at this stage, relatively poor, negative and unfavourable.
39 Dr Weissman saw the plaintiff again on 14 March 2018. The plaintiff continued to complain of constant back pain. There had been no improvement in his condition since the earlier examination. He was on a very sizeable raft of medications and was continuing to see his general practitioner, his psychiatrist and his psychologist. Apart from his worries concerning his future and his concerns in relation to employment, he also described insomnia and interference with his sex drive. On this occasion, the plaintiff was not using a walking stick and walked with a slight limp. Dr Weissman was of the opinion that the plaintiff was suffering from a Major Depressive Disorder, with anxiety, mild to moderate intensity, but thought that it was equally due to the circumstances and situation of the plaintiff’s daughter in Syria and to the accident-related pain injuries, injuries and the like. I am a little uncertain as to why the contribution from the situation involving the plaintiff’s daughter had risen in what appears to be a quite dramatic fashion. In any event, Dr Weissman thought that the plaintiff would have at least a partial capacity for suitable duties, but required rehabilitation, assistance and the like. He regarded the prognosis as being somewhat uncertain and guarded, and again referred to psychiatric factors other than those relating to the accident.
40 Dr Kilner Brasier, occupational physician, saw the plaintiff at the request of his solicitors on 23 February 2018. To Dr Brasier, the plaintiff denied that the behaviour of his youngest daughter had contributed to his condition. Dr Brasier took a history of the accident and subsequent treatment. The plaintiff complained of constant aching and pain in his left sacroiliac and buttock area, radiating to the hamstring. He complained of poor sleep, interference with enjoyment of life, severe depression and the like. Dr Brasier was aware that the plaintiff had been twice admitted to hospital for psychiatric treatment. Dr Brasier examined the various radiological reports. He diagnosed a chronic mechanical lumbosacral back injury and associated Adjustment Disorder, severe depression and anxiety. In relation to the back injury, this was considered to be a direct result of the accident. In relation to psychological injuries, Dr Brasier noted that there was some evidence of prior depression and anxiety, which had been aggravated as a result of the accident. He was of the view that the plaintiff’s psychological incapacity was severe. His view was that the plaintiff’s quality of life had been severely affected as a result of the accident and that the plaintiff’s psychological condition in particular presented serious ongoing consequences. He thought that the plaintiff required ongoing intensive psychiatric and psychological support and care, and that he would benefit from diagnostic spinal injections. The prognosis was poor. He was of the view that the plaintiff was permanently unfit for any meaningful work as a result of physical and psychological injuries sustained in the accident.
41 The defendant has also had the plaintiff examined for medico-legal purposes.
42 Dr David Elder, occupational physician, first saw the plaintiff on 9 June 2015. The plaintiff was complaining of constant severe low back pain which he assessed at 8/10. He described the various difficulties which he was encountering. Dr Elder expressed the view that the plaintiff’s clinical presentation was so clouded with abnormal illness behaviour and inconsistency, it was not possible to state whether there was any objective pathology. Apparently the plaintiff walked with a shuffling gait, leaning heavily on his stick, and allegedly lurched around the consultation room from one piece of furniture to the next. The conclusion of Dr Elder was that the plaintiff’s presentation could not be explained by organic pathology. Dr Elder would have expected injuries sustained in the accident to have resolved within a very short period of time, and it appeared that there were significant psychosocial issues. Dr Elder thought that the plaintiff should be able to work and was not convinced that vocational rehabilitation should be instituted. He was of the opinion that non-organic factors predominated.
43 Dr Elder was forwarded the surveillance material (presumably that of 28 April 2015). Having viewed it, he thought that it revealed inconsistency in that the plaintiff was able to get into a car at a service station, twist around and walk without a walking stick. He concluded that the plaintiff was deliberately misleading his doctor. He did not think that any significant medical interventions were indicated.
44 Dr Elder saw the plaintiff again on 10 April 2018. The plaintiff assessed the level of his pain as being at 7/10, but increasing to 9/10 with activity. He stated that he still utilised a walking stick, but did not use it all the time. Dr Elder was of the view that the plaintiff’s clinical presentation was still clouded with abnormal illness behaviour and inconsistency. He again described the plaintiff as having a shuffling gait and lurching from one piece of furniture to the next. In essence, the opinion of Dr Elder had not changed. He did not believe that there would have been any injury arising out of what he described as a minor road traffic accident. He thought that there were significant inconsistencies on presentation and that the prognosis should be excellent. He did not believe that there had been any physical impact upon an ability to work or perform domestic and leisure activities.
45 Dr Nicholas Ingram, consultant psychiatrist, also saw the plaintiff at the request of the defendant. He initially reported on 24 August 2015. Dr Ingram took a history of the accident. He was also provided with the two earlier reports of Dr Elder, including the one commenting upon the surveillance material and concluding that the plaintiff had been deliberately misleading. To Dr Ingram the plaintiff described various of his symptoms, including poor sleep, loss of energy, significant loss of libido, impairment of memory and concentration and the like. Dr Ingram thought that the plaintiff’s behaviour was appropriate, with no evidence of being in pain, save that he used a walking stick and had a definite limp. He was able to walk to the side of the room and back again without the walking stick. He answered questions fully and gave a good history. The diagnosis of Dr Ingram was that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed Mood, this being a secondary consequence of the accident and of the plaintiff’s subsequent chronic pain. Dr Ingram noted that Dr Elder felt that there was no organic explanation for the pain. Accordingly, it was possible that the plaintiff had a chronic pain condition in association with a psychological problem. Effectively, Dr Ingram disagreed with the opinion of Dr Elder that the plaintiff may have been deliberately misleading his doctors. Dr Ingram pointed out that the plaintiff had worked hard for more than 30 years and with very few sick days. He found it difficult to see that the plaintiff would develop any primary or secondary gains from adopting a sick role or deciding to lie about his symptoms. Accordingly, he concluded that the plaintiff’s pain was genuine, even though there was no clear physical explanation. In regard to prognosis, the plaintiff felt that there had been some slight improvement and Dr Ingram regarded this as a positive sign. He thought that the plaintiff should continue with treatment for his psychiatric problems. He also thought that, if the pain were more manageable, the plaintiff’s depression of itself would not prevent him from working. He did not believe that the plaintiff’s condition was stable and thought that there could well be some improvement over the upcoming couple of years.
46 Dr Ingram reported again on 24 March 2016. He had not seen the plaintiff again. He had been forwarded a newspaper article concerning the plaintiff’s youngest daughter and her travelling to Syria to marry an Australian jihadist, who had subsequently been killed. That the girl’s parents had been distraught was mentioned in the article. Dr Ingram had also been forwarded the surveillance material and was able to view it. Dr Ingram commented upon the fact that the plaintiff had not told him concerning the youngest daughter going to Syria. In his opinion, as expressed in this report, the failure to disclose this meant that the plaintiff was an unreliable historian and it was possible that he was exaggerating his symptoms for his own benefit. Further, even if he was depressed, it was quite likely that the cause of such depression was the loss of the daughter. He did not regard the surveillance video as being particularly significant. He also noted that a picture of the damage done to the front of the taxi showed that the accident was very trivial and would not have been expected to cause any significant injury. Thus, it was difficult to come to the conclusion that the accident had led to any significant psychiatric illness. Accordingly, Dr Ingram changed the conclusion contained in his original report.
47 Dr Ingram reported to the defendant again on 3 April 2018. In this most recent report, Dr Ingram again changed his opinion. On this occasion, the plaintiff stated there had been no improvement in his pain since he had last seen Dr Ingram. He described the medication which he had been taking, claiming that nothing had led to significant relief. Dr Ingram was also provided with a recent report from Dr Weekes. The plaintiff told Dr Ingram that he had not returned to work since last seen and had not felt that he was able to work. He had had no interest in having a sexual relationship for some years. He described various of his symptoms, including disturbance of sleep, loss of weight, low energy levels, impaired memory and concentration and complete loss of libido. He described a change in medication which had occurred. Dr Ingram had been provided with some medical material from Dr Gelman, Dr Piperogolu and Mrs Durmaz. The plaintiff told him that it had been distressing when his youngest daughter had left, but he had come to terms with the situation and was in regular telephone contact with her. The plaintiff did not feel that the situation with his daughter was an ongoing cause of his depression. He stated that he had coped with other losses in life, for example, the ending of his first marriage, without his stopping work.
48 Dr Ingram felt that the plaintiff was suffering from a Major Depressive Disorder and that it was also possible that he had a Chronic Pain Disorder. The Chronic Pain Disorder would be a complex condition. The fact that it could not be fully explained by biological mechanisms did not mean that it was not real. Dr Ingram felt that there was no evidence that the plaintiff was consciously exaggerating his pain. He was probably now more depressed than when originally seen by Dr Ingram two and a half years previously. Dr Ingram felt that the level of his depression would now qualify him for the diagnosis of a Major Depressive Disorder. Dr Ingram stated that he would no longer go along with what he had said in his supplementary report, having discussed with the plaintiff the issue of the plaintiff’s youngest daughter going to Syria. Dr Ingram stated that at the current time the plaintiff’s depression was significant and real. It was related to the accident and to the plaintiff’s subsequent chronic back pain and inability to work. He referred to the plaintiff’s admissions to hospital and the treatment received, all of which had only evoked a limited response. This suggested that the prognosis was poor, although a trial of ECT could be considered if the plaintiff was readmitted to hospital. In relation to his current capacity for work, Dr Ingram was of the view that the plaintiff would be unable to work because of his pain, but his level of depression also would make it difficult for him to work. His depression also had an impact upon the plaintiff’s ability to engage in and enjoy his leisure and domestic activities.
49 In relation to the claim insofar as reliance is placed upon paragraph (c) of the definition, I prefer and accept the diagnoses of those who have been treating the plaintiff. There is a considerable coincidence between those diagnoses and the most recent diagnosis of Dr Ingram, examining on behalf of the defendant. In the most recent report of Dr Gelman, the treating psychiatrist, it is stated that the plaintiff suffers from a Major Depressive Disorder, Chronic Pain Disorder and an enduring personality change. The treating psychologist, Mrs Durmaz, in her report of 14 March 2018, has diagnosed a Major Depressive Disorder. In his most recent report, Dr Woo, the treating general practitioner, has diagnosed post-traumatic depression and reactive depression. All three implicate the accident and related events. Dr Michael Piperogolu, who had the care of the plaintiff when he was an inpatient at Epworth Mental Health Unit, Camberwell, this being in the absence of Dr Gelman, noted that the plaintiff’s first admission was for worsening of the transport accident related Major Depressive Disorder, with associated chronic pain in the lower back. He believed that the plaintiff’s need for ongoing psychiatric treatment and the absence of a capacity to return to work were wholly related to the psychological injuries, including chronic pain, which were in turn related to the accident. In his most recent report, Dr Ingram, examining on behalf of the defendant, has diagnosed a Major Depressive Disorder related to the accident and its sequelae. Thus, his diagnosis coincides considerably with that of Dr Gelman.
50 The opinion of Dr Weissman, examining on behalf of the plaintiff, is essentially that the plaintiff is suffering from mild traumatisation features, but also from a chronic Major Depressive Disorder and Somatic Symptom Disorder. Thus, his diagnosis is substantially in accord with that of those treating the plaintiff and that of Dr Ingram. The area in which he departs from their viewpoint is in relation to the apparent radicalisation and departure of the plaintiff’s youngest daughter and the reliability of the plaintiff as a witness, particularly in this regard. It is a topic to which I shall return.
51 In short, I accept that the plaintiff suffers from a Major Depressive Disorder which has hospitalised him for two quite lengthy periods. I accept that suicidal ideation and deliberate self-harm have been associated with it. I also accept what could be described as the subsidiary diagnoses of Dr Gelman to the effect that the plaintiff has a Chronic Pain Disorder and enduring personality change. In short, I prefer and accept the opinions of Dr Gelman, Dr Woo, Mrs Durmaz, Dr Piperogolu and Dr Ingram. In relation to those who have been treating the plaintiff, I would make the observation that the plaintiff has received a large amount of treatment over several years and that those that have been treating him appear to me to be particularly well placed to make diagnoses and form opinions. Dr Piperogolu is also well placed given his direct connection with and supervision of the plaintiff during his quite lengthy periods of hospitalisation.
52 The plaintiff relies primarily on paragraph (c) of the definition. I shall only briefly deal with the diagnosis of his physical injury. I accept the diagnosis of Dr Woo, who has had considerable contact with the plaintiff, to the effect that he does have some mechanical injury to the lower back. Dr Gassin, musculoskeletal and pain physician, who has treated the plaintiff, found it difficult to make a precise diagnosis. Dr Clayton Thomas, whilst he had previously seen the plaintiff, falls more into the category of a medico-legal examiner, as he had no recollection of having previously seen him. His diagnosis was of symptomatic spondylosis to the lumbar spine in the presence of high emotional distress. He also referred to aggravation of pre‑existing degenerative changes in the lower lumbar spine and facet joints. This is perhaps not vastly different from the diagnosis of Dr Gavin Weekes, pain specialist, of the rendering symptomatic of cervical and lumbar spondylosis with associated myofascial pain. I do not accept the opinions of Dr David Elder, who could, effectively, be described as “one out”, given the opinion of those who have treated the plaintiff and of other medico-legal examiners. Along with Dr Ingram, I am not of the opinion that the surveillance videos are damaging to the credit of the plaintiff. They seem to me to be consistent with what is contained in the plaintiff’s affidavits, his presentation in the witness box and what has been found by examiners other than Dr Elder. In short, I find that the plaintiff has suffered a back injury, which is probably in the nature of the aggravation of pre-existing degenerative changes. In any event, such injury and its consequences seem to me to be overshadowed to a very large extent by the mental or behavioural disturbance or disorder.
53 I am satisfied that such mental or behavioural disturbance or disorder is long-term within the meaning of the definition. Dr Woo has described the plaintiff as being permanently incapacitated for any type of work, taking into consideration only his depression. He also said that the plaintiff is likely to be depressed for a long time and that his condition has stabilised. In his most recent report, Dr Gelman has said that the plaintiff’s prognosis is poor; that he will be unemployable in any capacity in the foreseeable future; and that the anticipated period of incapacity is likely to be long-term. Mrs Durmaz stated that, from a purely psychological point of view, she is of the opinion that the plaintiff has no work capacity for the foreseeable future and that his psychological condition has stabilised. Dr Ingram said that the prognosis is poor. Dr Weissman has expressed the opinion that the plaintiff’s psychiatric symptoms, conditions and impairment have stabilised, whilst also stating in the same report that the plaintiff’s future is still somewhat uncertain and guarded. I might add that, in an earlier report, Dr Weissman was prepared to make a Whole Person Impairment pursuant to the Guide to the Evaluation of Psychiatric Impairment for Clinicians, an ingredient of which I understand to be permanence of symptoms and the like. I also accept that the plaintiff’s physical symptoms will be long-term and I would refer to the opinion of Dr Clayton Thomas that the plaintiff’s condition has been stabilised for some time and that he anticipates that a prolonged period of incapacity will remain.
54 It may be that the plaintiff’s physical injury to the back represents the aggravation of a pre-existing condition, as opined, for example, by Dr Clayton Thomas. However, the symptoms of which the plaintiff has complained after the accident seem to me to far exceed any which he had previously suffered. The same could be said of the mental or behavioural disturbance of disorder in that, as discussed, he had previously suffered from some depression. However, the previous symptoms which he had exhibited were of nowhere near the magnitude of those from which he is currently suffering and has been suffering since the accident. It is to be remembered that he had worked full time for in excess of 30 years with no great interruption prior to the accident. The problems involving his youngest daughter and which seem to have arisen shortly prior to the accident constitute a topic which requires some further discussion and to which I will now turn.
(e)The problems associated with the behaviour of the plaintiff’s youngest daughter
55 The plaintiff’s youngest daughter becoming radicalised and departing hurriedly to Syria came as a completely unexpected and disturbing shock to the plaintiff. I have little doubt concerning that. Her marriage to a jihadist, the birth of a grandchild of the plaintiff and the death of the daughter’s husband were further developments. Exactly when her unexpected departure occurred is not entirely clear, but it would appear that in the week before the accident, the plaintiff learned that his youngest daughter had effectively eloped and fled to Syria – see T34 and 35. This is consistent with his affidavit of 26 May 2017, in which he refers to his youngest daughter moving to Syria shortly prior to the accident. That these events caused a large amount of distress to the plaintiff is not challenged and is fully understandable.
56 However, I also accept that subsequently he has become largely reconciled to the situation. As he stated more than once, “I have accepted her decision” – see T39. He also stated that, “She is well over there wherever she is. She’s telling me she’s well. That’s enough.” – see T39 and 40. After the initial shock and the like, the plaintiff stated that the situation did not continue to be a significant problem. He readily agreed that it was at first an upsetting situation and a shock, but denied that it had gone on causing him distress and upset. The plaintiff receives text messages and the like from his daughter, including photos of the grandchild. His daughter has assured him that she is safe. As he has sworn in his more recent affidavit of 7 March 2018, he continues to worry about her, which is fully understandable, but his concerns in this regard do not interfere with his ability to work or with his activities of daily living.
57 This is consistent with the most recent findings of Dr Ingram, examining on behalf of the defendant. As stated in his report of 3 April 2018, “… he says he has a good relationship with this daughter now and talks to her regularly on the phone and there is no evidence at the current time that this is a major factor impacting on his depression.” I would also point out that the plaintiff’s treating psychologist, Mrs Durmaz, was well aware of the situation in relation to the plaintiff’s youngest daughter and commented upon it in her report of 14 March 2018 as follows:
“Mr Duman was referred to me originally by his family doctor for his depressive symptoms regarding to his daughter’s leaving the country. Mr Duman received help to improve his thoughts and feelings about his daughter’s decision. He accepted that his daughter was an adult and she had the right to make her own decision. He was more relaxed after his daughter had contacted him about her safety. He later found out that his daughter had a baby and she was happy with her choice.
Mr Duman’s psychological condition related to the accident has worsened after March 2015 and he had developed suicidal thoughts … Mr Duman’s quality of life, recreational activities, personal relationships, family activities in relationships have been negatively affected due to the diagnosed mental condition after the accident.”
58 I would also refer to the following remarks by Dr Gelman, the treating psychiatrist, in his report of 8 June 2016:
“I feel that his condition is entirely caused by the motor vehicle accident that he was in.
I feel that his condition has nothing to do with his family circumstances, namely the path that his daughter has taken.
He opposed this and was very disturbed by it, however he has grieved this and moved on. It does not have relevance to his psychiatric condition, which appears only associated only with his motor vehicle accident.”
59 As stated earlier, during his periods of hospitalisation the plaintiff was under the care of Dr Michael Piperogolu. He has expressed the following opinion:
“In my opinion, I do not believe the situation with Mr Duman’s daughter impacts his psychological state, to the extent that he requires treatment. In my opinion, the situation with his daughter, which he found out about approximately four to five days prior to the motor vehicle accident in November 2014, would have only been a temporary aggravation to the transport accident related psychiatric injury. In my opinion, having spoken to him on a number of times whilst an inpatient, he has come to terms with this situation, has grieved appropriately and now believes there is nothing more he can do about it, given that his daughter is an adult who has made her own decisions on her life and future. The quote contained in the Herald Sun news article 28 December 2014 does convey his acute distress at the time, regarding his daughter and her whereabouts. I would suggest this is a normal acute grief reaction for any parent going through a similar situation at the time but has no relevance at all to his current situation or the transport accident related nervous disorder.”
60 Dr Piperogolu has also stated that the only reason why the plaintiff did not initially tell Dr Gelman or Dr Ingram about his daughter was because of some social embarrassment and also because of his belief that it is something with which he has dealt. Dr Piperogolu went on, “It had nothing to do with being deceitful or not telling the truth.” I accept Dr Piperogolu’s quite detailed opinion.
61 These are opinions which I prefer and accept. I prefer them to the opinion of Dr Weissman, which, frankly, I find somewhat difficult to follow. In the interview on 20 April 2017, the plaintiff told Dr Weissman that his daughter was in the area of Syria and, when asked if this caused him stress, he replied “All I know is she’s all right, that’s enough for me.” He subsequently added, “She’s old enough and she made up her own mind, I had no say in it. What can I do? I feel sad.”
62 Dr Weissman then expressed the view that it was likely that the issue of the plaintiff’s daughter being in the Middle East did contribute to some of his current depression, emotional distress and the like, attributing to it something in the order of 5 per cent pre-existing and unrelated impairment. In the next lengthy report of 14 March 2018, it is recorded that the plaintiff told Dr Weissman that the daughter in question was in the Middle East; that they do have conversations; and that she is very happy where she is. He further told Dr Weissman that he does get worried sometimes, asking the rhetorical questions, “What can I say? …”, after referring to worrying sometimes, “… but what can I do?” He also showed Dr Weissman a photograph of the grandson in question, this being on his mobile phone.
63 With not a great deal more information from the plaintiff in this regard having been obtained, Dr Weissman on this occasion expressed the view that the plaintiff had a significant amount of pre-existing and unrelated psychosocial stress and psychiatric impairment due to issues regarding his youngest daughter in Syria. He referred to it as contributing in a significant manner to the plaintiff’s overall presentation and made the observation that, “In relation to the subject transport accident, he is suffering from … roughly ‘half’ of a chronic Major Depressive Disorder …”. This seems to be a statement that the issue regarding the youngest daughter in Syria has gone from contributing to the plaintiff’s condition to the extent of some 5 per cent to 50 per cent, with, as far as I can understand it, a very modest amount of further information, if any of significance, being advanced. In any event, I prefer the opinions of those treating the plaintiff and of Dr Ingram.
64 In short, I find that the whole affair of the disappearance of the plaintiff’s youngest daughter to the Middle East was understandably a cause of considerable initial stress, but that he has reconciled to the situation. Whilst he still may have his worries, I accept that it has little or no relevance to the mental disturbance or disorder from which he suffers, which is virtually entirely a consequence of the accident.
Other developments since the accident
65 The plaintiff has not returned to any form of work. His daily activities are quite limited. In 2017 he did book a ticket on an airline with the idea of accompanying his wife overseas, apparently to see her parents. However, in fact he was unable to go because of other circumstances. Physically he feels that he would not be able to take such a flight, but his doctor had given him a clearance to see if it might assist him physically and mentally and, had it been possible, he would have tried to go.
Ruling
(a)The application insofar as it relies upon paragraph (c) of the definition.
66 Insofar as the plaintiff relies upon paragraph (c) of the definition contained in s93 of the Act, I find that he has discharged the burden of proof.
67 I find that he does suffer from a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of the definition and that this has been caused by the accident.
68 As was stated by Brooking JA in Mobilio v Balliotis [1998] 3 VR 833, the word “severe” is a stronger word than “serious”. After applying that more demanding test, I am of the view that the plaintiff succeeds.
69 As is apparent from the above, I am of the view that the mental or behavioural disturbance or disorder from which the plaintiff suffers arises directly from the accident, even if the amount of damage done to the vehicles was not great.
70 A major consequence of the accident was that it brought to an immediate end a working life consisting of essentially an uninterrupted period in excess of 30 years and for only three different employers. It rendered a man who was then 48 years of age totally incapacitated and such incapacity will continue on a long-term basis. In this regard I accept the opinions of Dr Woo and Dr Gelman, who have been treating the plaintiff. Dr Piperogolu, who treated the plaintiff when he was an inpatient for comparatively lengthy periods, did not consider that he had a capacity to return to work. Dr Ingram, examining on behalf of the defendant, has referred to the plaintiff as having a Major Depressive Disorder and to the difficulty which this creates in relation to the plaintiff working. I prefer these opinions to that of Dr Elder, who, to state the obvious, has not treated the plaintiff and who claims no expertise or qualification in relation to psychological or psychiatric medicine other than what is associated with the obtaining of medical qualifications. Further, the opinions of Drs Woo, Gelman, Piperogolu and Ingram coincide with the impression which I had formed of the plaintiff and his capacity.
71 In short, I am satisfied that the plaintiff has no capacity for work as a result of the mental or behavioural disturbance or disorder from which he suffers and which has been caused by the accident. I am also satisfied that this is a situation which will prevail for the long-term. Given his age and his working history, this destruction of his working capacity is probably in itself sufficient to discharge the burden of proof. Apart from the direct financial impact as a result of this, I accept that the plaintiff was something of a “workaholic”, was proud of the position which he had achieved and enjoyed much social interaction connected with work. He feels as if he has lost his identity and finds reliance upon government benefits for the first time in his life to be humiliating and significantly upsetting. Thus, those matters related to his inability to work are almost of themselves sufficient to pass the test of severity without taking into account other factors.
72 However, to these can be added some additional consequences. I accept that, the plaintiff has a Major Depressive Disorder consequential upon the accident. As recorded by his treating psychiatrist, Dr Gelman, he has at times been actively suicidal, a consequence also commented upon by Dr Piperogolu. Further, Dr Piperogolu has referred to the fact that there is likely to be a psychological amplification of the chronic lower back pain. Dr Ingram has referred to the plaintiff as having depression related to his pain and physical limitations and to the plaintiff often feeling hopeless and worthless. As commented upon by Dr Ingram, the plaintiff’s sleep is disturbed, his memory and concentration have been impaired and there has been a complete loss of libido. The relationship between the plaintiff’s physical symptoms such as pain and his mental or behavioural disturbance or disorder seems clear from the medical material. Further, I accept that he has become effectively a recluse and I accept his assertion in his affidavit of 7 March 2018 that the symptoms of depression which he experiences have had a significant impact on all aspects of his life. His treating psychologist, Mrs Durmaz, has referred to how the symptoms of his depression, including lack of sleep, lack of motivation and lack of energy, hinder him from engaging in active functioning of his day to day life. He has also stated that his quality of life, recreational activities, personal relationship, family activities and relationships have all been negatively affected due to his diagnosed mental condition after the accident and that the plaintiff’s psychological difficulties remain chronic. As stated by his treating psychiatrist, Dr Gelman, he is always depressed in affect, his quality of life is extremely diminished, his activities of daily living have deteriorated and his enjoyment in any part of his life has disappeared. In short, as the plaintiff has sworn in his affidavit of 7 March 2018, he suffers from severe symptoms of depression; he has been suicidal; he is constantly anxious and obsessing over minute details; and, in short, as stated, his symptoms of depression which he now experiences have had a significant impact on all aspects of his life. Further, the plaintiff has had a large amount of treatment, medication and hospitalisation.
73 When all of the above is taken into account, it seems to me that the burden of proof insofar as it relates to paragraph (c) of the definition has been discharged and that the plaintiff is entitled to leave to bring proceedings. The test in Humphries & v Poljak has been satisfied.
(b)The application insofar as it relies upon paragraph (a) of the definition
74 Having found that the plaintiff is entitled to leave to bring proceedings because he has satisfied the requirements of paragraph (c) of the definition, there is no need for me to make any finding in relation to paragraph (a). The plaintiff’s application was conducted primarily upon the basis of paragraph (c) and I have found that he has succeeded in that regard. In these circumstances, here is no need for me to make any ruling in relation to paragraph (a) in relation to impairment or loss of a body function.
Conclusion
75 The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings. I shall hear the parties as to any ancillary orders that are required.
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