Duxbury v TAC
[2017] VCC 306
•29 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-16-04803
| JEREMY DUXBURY |
| v |
| TRANSPORT ACCIDENT COMMISSION |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 15 March 2017 | |
DATE OF SENTENCE: | 29 March 2017 | |
CASE MAY BE CITED AS: | Duxbury v TAC | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 306 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT COMPENSATION
Catchwords: Serious Injury Application - severe long-term mental or severe long-term behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave to commence Common Law proceedings denied.
---
APPEARANCES: | Counsel | Solicitors |
| For the application For the defendant | Mr T Tobin SC with Mr WR Middleton QC with | Ryan Legal Transport Accident Commission |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence an action seeking damages with respect to an injury sustained by him as a consequence of the fatal injuries sustained by his brother in a transport accident which occurred on 23 July 2013 (“the accident”).
2 It is alleged by the plaintiff that by reason of the death of his brother, Jake Duxbury, he has developed a severe long-term mental or severe long-term behavioural disturbance or disorder which gives rise to severe injury as that term is defined by the provisions of the Transport Accident Act (“the Act”).
3 In the application the plaintiff relies upon:
(i) two affidavits sworn by him on 5 September 2016 and 15 February 2017 respectively;
(ii) an affidavit of his mother, Deborah Howser, sworn 14 February 2017; together with
(iii) the medical and like reports contained in the Plaintiff’s Court Book.
4 In addition the plaintiff gave sworn evidence largely in the form of cross examination and re-examination.
5 The defendant in turn relies upon the medical records relevant to the plaintiff’s treatment which have been tendered together with the medical reports tendered by it.
6 It is on the basis of this material that I am required to determine:
(i) The causal relationship between the plaintiffs current presentation and the emotional injury occasioned to the plaintiff by reason of the death of his brother; and
(ii) whether emotional injury which the plaintiff suffered by reason of the death of his brother is such as to meet the very high threshold established by the definition of severe injury by the provisions of the Act, namely that it gives rise to a severe long-term mental or behavioural disturbance or disorder.
7 There is no issue that in undertaking the above task, I should not adopt a merely formulaic approach, but that I should focus my attention upon:
(i) the consequences which plaintiff’s accident related mental impairment has upon his life with reference to its symptomology;
(ii) the incapacity which that impairment generates both with respect to the plaintiffs ability to engage in general activities of life and the ability to earn income;
(iii) the medical treatment which that impairment requires; and
(iv) any additional factor of particular relevance to the plaintiff.
The affidavit evidence
8 In his first affidavit the plaintiff said that:
(i) He was born on 3 March 1992;
(ii) he was expelled from school at year seven at age 11 and thereafter completed various education certificates take until the age of 17;
(iii) he had a difficult time as he grew up being estranged from his father, he was influenced by hanging out with the wrong crowds, had been in trouble with the law having served a prison sentence for various offences relating to “stealing assault and drugs”;
(iv) in November 2012 he travelled to Queensland to meet his father however this did not go well and ended with his father assaulting him;
(v) he formed a relationship with a partner for approximately eight months during which time if found some work picking bananas;
(vi) he learnt of the death of his brother Jake in the course of a telephone conversation with his mother. He described the effect that conversation upon him as follows:
“I was in shock. I was very close to Jake. Jake was like my dad. He was more than my older brother, he was like a father to me because he really was the man of the house. He took on this role after Mum left dad”;
(vii) having attended his brother’s funeral he consulted Dr Hartley, a general practitioner, who prescribed medication for him and then returned to Brisbane in August 2013. In Brisbane he said he was struggling with anxiety depression and lack of sleep. He said he felt like nothing. He consulted a general practitioner at the Valley Station Medical Centre who prescribed some sleeping tablets for him;
(viii) he returned to Mildura in October 2013 where he commenced to see Dr John Buckley who prescribed Seroquel tablets for him and other medication
(ix) he attempted to kill himself in September 2014 by taking an overdose of medication. Following this attempt he woke at the Mildura Base Hospital where, after his release, he continued to take Valium medication for short while
(x) he described his current symptoms as follows:
· has difficulty with sleeping and suffers from nightmares about once a week some of them involving his brother Jake;
· when he looks at himself in the mirror he sees his brother;
· he suffers from anxiety and depression and still feels sad and angry about his brother’s death and the fact that he did not see his brother before he died.
(xi) He said that in August 2014 he commenced working for a fencing company and that this work continued until January 2015. At that time he was off work for about a year although he did some fruit picking around Mildura. In 2016 he started working at Hall’s memorials as a stonemason but he lost that job because he could not cope with the memories of his brother’s death, which his work revived.
9 In his second affidavit the plaintiff:
· described prior problems with his life as involving contracting hepatitis C from drug use and having received medical treatment because he suffered from hallucinations;
· said that whilst in Queensland before the death of his brother his life had been relatively settled, that he had attended a TAFE course in business studies, undertook casual banana picking and was hoping to undertake further studies to qualify for work as a personal trainer or work in a skateboard shop;
· said that his brother was a father figure for him, occupying the position of a stable adult figure who would tell him when he was wrong, support him, and who was an inspiring role model for him encouraging him to find stable employment and not to be involved in drug use;
· described his continued depression commenting that not a day went by when he did not think of his brother or the consequence to him of the loss of his brother;
· said that he had difficulty sleeping, that he suffered from nightmares and flashbacks;
· described his current treatment as attending the Tri-Star Medical Clinic intermittently commenting;
“I sometimes take Valium to help me sleep. I smoke marijuana to help me sleep. I am worried about being a heavy medication. Drugs have been a problem for me since I was young,”
· described his current sleep, commenting:
“I have recurrent dreams. I have had three bad dreams and one good one”.
· said he ruminated about the loss of his brother at times thinking that his brother was not dead; he continued to be depressed and sad and to experience mood swings; he had problems with his anger before his brother’s death but that these problems were now worse; his symptoms impacted upon his relationship with his previous partner, two eldest children and their mother;
· said that before his brother’s death he had been in a relationship, was undertaking studies and hoped to achieve stable work and wean himself of heavy drugs;
· said that since his brother’s death his life had spiralled downwards and that although he continued to try to improve his life he felt lacking in direction.
10 Deborah Howser, the plaintiff’s mother, in the course of her affidavit essentially confirmed plaintiff’s troubled childhood, and the importance to the plaintiff of his brother as a role model and supporter.
11 Ms Howser:
(i) commented that when the plaintiff flew from Brisbane to attend his brother’s funeral she had picked him up at the airport and:” he looked the healthiest that I had seen in a long time he put on weight, his skin was clear and his face wasn’t as drawn however he also looked extremely sad”.
(ii) described the change in her sons demeanour following his brother’s death commenting that he became aggressive was drinking and smoking marijuana and was not able to accept the death of his brother.
(iii) described the plaintiff’s admission to hospital in February 2014 where the plaintiff though that she had been lying about it his brother’s death and finding the plaintiff about a week later unconscious having overdosed on prescription medication.
(iv) said that since the death of his brother, the plaintiff:
· had been unable to hold down a job;
· had battled with anxiety and depression;
· had regular asked outbursts of anger;
· seemed unable to hold down a relationship.
(v) said that she was concerned about the plaintiff’s future well-being now that he had lost the only person he could turn to. In contrast to this she said that he had seemed happy and healthy at the time of his brother’s fatal accident.
The Viva Voce evidence
12 In the course of cross examination the plaintiff gave the following evidence:
(i) before the death of his brother:
· he had been in Queensland for approximately 10 months;
· he had smoked marijuana for approximately 10 years every night in order to help him sleep;
· currently he was taking less than a gram of marijuana a week, it used to be a lot more than that but he was trying to quit;
· after the death of his brother he quit using heavy drugs for a short period;
· he disagreed with the history recorded upon his admission to the Mildura Base Hospital in September 2014 stating:
i. he had not used ice three days prior to his admission
ii. he did not agree that he had provided a history to the effect that he believed he was being threatened by bikies’[1]
[1]Whilst caution must always be applied in attaching any weight to statements contained in hospital records when no evidence is adduced as to the accuracy of those records given the psychotic state with which the plaintiff presented at the time of his admission these comments by the plaintiff cause me to question the reliability of his memory on these issues.
· he intended to consult Richard Dowdy, a counsellor who he had previously seen as he was growing up, given the funding provided by the TAC to allow him to see “someone in order to cope with my brothers accident”;
· he was now using a medication called Imrest to help his sleep, which he preferred to Valium because the latter was an addictive drug. He said he had also cut down his use of marijuana;
· he confirmed the statement recorded by Mr Doherty that he was not currently taking any medication;
· he agreed that he had not been treated by a psychologist or a psychiatrist;
· he disagreed with the position recorded by Dr Hartley who, in his report, had stated that he had not treated the plaintiff with respect to his accident related injury insisting that it was Dr Hartley who diagnosed that he was presenting with anxiety and depression by reason of the death of his brother, that Dr Hartley provided him with the script for something to assist him to sleep[2];
[2]This evidence is inconsistent with the content of the letter addressed by Dr Hartley to the TAC and I am satisfied, for the reasons I will develop in due course, that I should prefer the content of the written report of Dr Hartley as to this issue.
· he had suffered from symptoms of poor concentration sleep disturbance and depression in May 2011 at which time he was living on the street;
· whilst he accepted that in August 2013 he attended the fortitude Valley clinic and in the course of a consultation told Dr Tian that he was not really depressed or suicidal, he said that he was in fact suicidal but he had
”told the doctor that because I wasn’t because there is a thing called duty of care and if I am suicidal then I’ll end up in a mental ward and I don’t want that so yes I did lie to the doctor on that day because of the repercussions of that”[3];
· the plaintiff was taken to the records of the Tri-Star Clinic which recorded Valium being prescribed to him on the last occasion in October 2015 it was put to him that this did not accord with his affidavit evidence February 2015 that he had regularly used Valium to try to help him sleep. The plaintiff disagreed that the last prescription which he had for Valium was 22 October 2015. I am satisfied, for the reasons I will develop in due course, that the plaintiff was probably mistaken as to this point
[3]I found plaintiff's evidence in this regard not to be persuasive. In my view the reason given by the plaintiff for misleading doctor Tien is extremely unlikely.
13 Much of the cross examination involved Mr Middleton QC, who appeared for the defendant with Mr Clarke putting to the plaintiff his history as to his presentation to various medical practitioners over the years. That history records:
(i) sporadic attendances in which the plaintiff presented with a history consistent with seeking treatment for symptoms identified by him as being associated with his accident related injury;
(ii) instances in which the plaintiff was prescribed a sedative or sleeping tablet in circumstances in which the relationship between the prescription of the medication and the accident was not mentioned;
(iii) numerous attendances by the plaintiff for treatment not related to any accident related injury was recorded.
14 Whilst I am cautious in drawing any definitive inference to the effect that the failure by the relevant medical practitioner to record the fact that the plaintiff was suffering from symptoms secondary to the accident upon his presentation to the practitioner at any given time indicates the absence of the presence of such symptoms or a discussion as to their presence, I am nevertheless satisfied that the chronology prepared by the parties as to the attendances by the plaintiff upon his general practitioners on balance provides no assistance to the plaintiff in establishing the proofs necessary in the case and in reality provides some support to the position taken by the defendant that the plaintiff was coping adequately with his accident related symptoms without the need for medical intervention.
15 For the reasons which I will develop below I am satisfied that the plaintiff presents with a mental illness of considerable severity currently and most probably presented with a significant mental illness prior to the accident.
16 I am further satisfied that the level of the plaintiff’s mental illness both now and prior to the accident is likely to have affected both his perception of events as they may occur, (for example his presentation to the Mildura Base Hospital in September 2014 when he was clearly in a psychotic state), and his recollection of events.
17 For these reasons, unless there is some reason not to do so, I am satisfied that I should act upon written records or statements generated by medical practitioners as to the plaintiff’s presentation or management when there is a conflict between those records and evidence given by the plaintiff. Equally however I accept that, it is appropriate that I adopt a cautious approach in implementing that process and I should do so, evaluating the probative value of the plaintiff’s position in each instance.
18 Given the plaintiff’s mental illness it is not surprising that the plaintiff found giving evidence difficult and that he did not present as an impressive witness. I wish to make it clear that in making the latter statement I do so in the context of my satisfaction that the giving of evidence is a daunting and difficult task for a person presenting with the plaintiffs illness.
19 I am equally satisfied that in, the context of his illness the plaintiff for the most part did his best to give truthful and accurate evidence notwithstanding the fact that I am satisfied that on various issues the plaintiff gave evidence which was not reliable because it was based upon his subjective assessment of things which was inaccurate, notwithstanding his belief in the accuracy of that evidence.
The medical evidence
20 In a report dated 1 June 2012 associate Prof Joe Sasadeuze who was managing the plaintiff’s Hepatitis C described his impression upon reviewing the plaintiff as seeming
“to be slowly straightening out his life. He is now in his own flat which he is about to share with his brother although he is still making his way through the court system…. He is due to see he Hieu Pham for a psychiatric assessment... hopefully Hieu can assess his suitability for treatment although there is still the possibility of incarceration which made interfere with this.”[4]
[4] PCB 24.
21 On 27 June 2002 Dr Hieu Pham, a consulting psychiatrist, wrote to the plaintiff’s treating general practitioner reporting as to the plaintiff’s presentation to her as follows:
“He is now on 6 months suspension and he is keen to stay out of jail. It also means that there are no legal issues hanging over him, and my involvement with him from now will be just purely clinical……. he has been having auditory hallucination. He would often hear male voices ‘having a go’ at him. He would hear ‘how did you let that c-- do that?’ or ‘why did you let that C-- get away with it’. These lead to fighting with his ex/girlfriends… These voices sounded real and he would have arguments with them. People around him have been caught by surprise at his reaction to these internal stimuli and often, he would react aggressively to them and, eventually, got himself into all sort of trouble, mostly fights and assaults…
He has a long history of drug abuse, from the age of 12, he would inject drugs and these activities in the past that led him into a forensic world. I understand he has been assessed by Professor Mullen but he has not been told his diagnosis.
Specific questioning did not reveal a depressive illness or anxiety disorder. He is now in a flat by himself, he is hoping that his older brother (who does not use drug) would join him soon. He is socially isolated as all of his friends injected drug and he needed to stay away from them”[5]
[5] PCB 25.
22 Dr Pham opined:
“given the history and the nature of his hallucination my impression is that most likely, this young man has psychotic illness which has not been treated. In the past it might’ve been assumed or in fact been drug induced. With a rather sketchy developmental history that I got today, it is possible that he might have some sort of conduct disorder as a boy which was not detected and treated…
After some length of discussion, pros and cons of medication, he agreed to take Olizapine which is an antipsychotic .We will try him on 5 mg at night. I will review him again in four weeks time to monitor his mental state. We will see if his behaviour would change once he is free from auditory hallucination. I will keep you posted.”[6]
[6] PCB 26.
23 There is no issue, having regard to the report of Dr Pham which described the plaintiff’s presentation with auditory hallucinations and her impression that he suffered from a psychotic illness which required treatment with antipsychotic medication, that an issue arises as to the stability of the plaintiff’s mental health prior to the death of his brother and accordingly the effect which the loss of his brother has had upon that pre-existing condition.
24 No formal report has been provided by Dr Pham other than the report to which I have referred which was generated by Dr Pham in response to the referral made to her by Dr Hartley; neither have I been provided with a report by Dr Hartley as to the progress of the plaintiff whilst under the care of Dr Pham.
25 The absence of this material imposes significant hurdles to me in my role which requires me to
· identify and quantify the consequences to the plaintiff of any mental illness with which he presented prior to the accident: in order to
· identify and quantify any additional consequences caused by the plaintiffs accident related injury.
26 There is no issue that the plaintiff has attended upon a number of general practitioners since the accident and that whilst some of these attendances have involved histories of the plaintiff suffering from depression or anxiety caused by the loss of his brother[7], other attendances have involved the prescription to the plaintiff of medication for insomnia or anxiety without any recorded history, and other attendances have involved the plaintiff attending a medical practitioner for matters unrelated to his mental state.
[7]the plaintiff's attendance at the Valley Station Medical Center on 6 September 2013 at which time he reported feeling depression and anxiety which were getting worse since his brother died six weeks ago at which time the plaintiff was prescribed temazepam for insomnia being an example
27 At my request the parties have prepared a chronology as to the relevant attendances which I append to my reasons.
28 As I have previously stated I accept that the generation of medical records is in no way designed to provide an external observer with an insight as to the totality of the matters discussed in the course of any particular presentation. In this instance however, I have not been provided with any medical reports from any of the plaintiffs treating medical practitioners which opine as to the reason for the plaintiff’s presentation to them or the relationship between the plaintiff’s presentation and any emotional injury suffered by him by reason of the accident.
29 Accordingly I find myself in the position in which I have difficulty in fixing with any degree of precision:
· precisely what treatment the plaintiff received for the purpose of managing the emotional condition with which he presents as the result of the accident;
· the opinion of the various doctors with whom the plaintiff has consulted for treatment following the accident as to the severity of the plaintiffs current emotional state, or the relationship between the trauma to which the plaintiff was exposed by reason of the death of his brother and his current emotional state.
30 In circumstances in which there is disagreement in the opinions expressed by the consulting experts not only as to the nature of the psychiatric illness with which the plaintiff presents but also the relationship between that illness and the accident, the absence of any reports from the plaintiffs treating doctor’s does not assist the plaintiff in his task of establishing on the balance of probabilities the effect of the accident upon his pre-existing illness.
31 It is put on behalf of the plaintiff that the accident was a cause of his admission to the Mildura Base Hospital in September 2014.
32 The discharge summary as to that attendance records the plaintiff presenting with a final diagnosis of:
(i) Axis I; drug induced psychosis;
(ii) Axis 2:antisocial personality traits;
(iii) Axis 3 : effects of prolonged ICE use;
(iv) Axis 4: homelessness, low income unemployed.
33 It is clear that the plaintiff was psychotic at the time of this presentation and that he was making statements that he was not sure that his brother who had been killed in an accident last year was really dead.
34 At the time of his presentation, a history was obtained that the plaintiff had used Ice three days prior to his admission.
35 That he provided such a history was challenged by the plaintiff when it was put to him in cross examination.
36 Given the psychotic symptoms with which the plaintiff presented at the time of this admission, I am satisfied that it is likely that the Discharge Summary provides more reliable evidence than that of the plaintiff upon the issue as to the cause for the plaintiff’s presentation or his history immediately prior to the presentation, given that the plaintiff’s evidence would be clearly based upon his recollection of events whilst he was in a psychotic state.
37 The discharge summary contains an entry under the heading Formulation:
“23 year old...... presenting with psychotic symptoms and suicidal in the context of ice use. Death brother last year, unresolved grief, family instability due to client misinterpreting situations and being unaware of emotional impact of his ideas. Multiple relationships during which he has felt used. Minimal contact with biological father and difficulty interacting with peer and in social situations as a child”.[8]
[8]PCB 29
38 Given:
· the multiplicity of the issues referred to above, the signifigance of any of which has not been identified; and
· the content of the final discharge diagnosis;
I am not satisfied that the plaintiff has established on the balance of probabilities that the accident was a significant contributing factor to his attendance and admission to the Mildura Base Hospital on 11 September 2014.
39 Further given the complexity of the issues with which the plaintiff presented to the Mildura Base Hospital on 11 September 2014 I find myself unable to be satisfied that the accident was a significant contributing factor to the plaintiff’s subsequent suicide attempt which occurred a week or so after his discharge.
40 In making these findings I do so in the context of the upmost sympathy which I feel both of the plaintiff and his mother. As I commented to Counsel in the course of the hearing of the application I am satisfied that both the plaintiff and his mother were doing their best to truthfully and accurately describe the consequences which the loss of his brother has had a upon the plaintiff’s mental state.
41 My task, however, in assessing the issues which arise as to causation is to do so in the context of the totality of the evidence, the medical evidence which, while in no way being definitive on the issue, nevertheless being of primary significance in that task.
The consulting medical reports
The medical reports of Dr David Weissman
42 Dr Weissman occupies the unusual position of assessing the plaintiff as the result of a joint referral made by Mr Shane Ryan the plaintiff’s solicitor and Ms Rachel Bartlett the solicitor on behalf of the Transport Accident Commission.
43 Although in assessing the consulting medical evidence in this instance I do so after undertaking an analysis of content of each report there can be no issue as to the impartiality or objectivity of Dr Weissman in this instance.
44 The content of the two reports of Dr Weissman speak for themselves and no point is served in merely reciting the statements made by him in those reports in the course of my judgement.
45 It is appropriate that I record the fact that in closing submissions no issue was made by either party that the plaintiff sought in any way to exaggerate his symptoms deliberately or to misrepresent his belief as to the effect which the death of his brother has had upon his life and lifestyle.
46 At the conclusion of his report dated 13 July 2016 Dr Weissman opined that plaintiff presented with:
1. Pre-existing/premorbid personality disorder;
2. Pre-existing/premorbid polysubstance abuse;
3. Pre-existing/premorbid severe psychological and emotional vulnerability;
4. Claim related chronic adjustment disorder with sad, depressed, anxious and angry mood states of moderate intensity or severity;
5. Unresolved, protracted and prolonged grief reaction and complicated bereavement process;
6. Mild-to-moderate chronic post-traumatic stress and anxiety syndrome associated with traumatisation features.
47 Dr Weissman opined further that:
· purely in relation to his brother’s death in the claimed incident the plaintiff did not require any psychotropic medication such as antidepressants;
· more generally in terms of his pre-existing/premorbid psychology he considered that the plaintiff’s personality disorder was essentially untreatable and was not the responsibility of the car accident.
· He could not necessarily state that the plaintiff presents with any psychiatric incapacity for work purely in terms of his accident related psychiatric conditions and mental injuries. Commenting:
“in other words Jeremy’s moderate accident related psychiatric conditions and mental injuries should not necessarily incapacitate him for suitable duties at present.”[9]
[9] PCB 47.
· The plaintiffs pre-subject accident psychiatric prognosis would have been very uncertain and guarded and most likely quite poor, negative and unfavourable;
· In relation to the transport accident the plaintiff sustained a moderate group of accident related psychiatric conditions and mental injuries including a chronic adjustment disorder with mixed disturbance of complicated bereavement processes and a post-traumatic syndrome;
· Overall approximately half of the plaintiffs current psychiatric impairment arose by reason of the car accident the balance being due to pre-existing unrelated features;
48 Dr Weissman provided a further report dated 10 March 2017 in that report he commented :
· that the plaintiff presented with:
“a very long, serious history of heavy, major and substantial polysubstance abuse…a very extensive serious and significant forensic history...”[10]
[10] PCB 48m.
· Further commenting:
“I have previously outlined that Mr Duxbury’s premorbid psychiatric prognosis would have been very uncertain and guarded, as well as very poor, negative and unfavourable. His psychiatric prognosis for the future is extremely uncertain and guarded as well as very poor, negative and unfavourable, if not bleak. Therefore there has been a mild further decline and deterioration in his psychiatric prognosis since the subject transport accident.”[11]
[11] PCB 48.
· That the plaintiff was not working in stable employment at the time of the accident;
· Whilst Dr Weissman opined that there was a real risk of underestimating the plaintiff’s psychiatric symptoms because he was not a psychologically minded person and was not articulate in general, he was of the opinion that the plaintiff:
(i) presented with moderate symptoms of sadness depression and grief and significant sleep and appetite disturbance which had not changed since his previous assessment of the plaintiff;
(ii) An unresolved approach attracted prolonged grief reaction and complicated bereavement process;
(iii) a mild-to-moderate chronic post traumatic stress disorder directly due to the circumstances of his brother’s death.
· Dr Weissman concluded his report with the following comments as to the plaintiffs prognosis:
“his pre-subject accident psychiatric prognosis “would have been very uncertain and guarded as well is very poor negative and unfavourable. Notwithstanding his definite serious significant and substantial pre-existing psychiatric, psychological and personality related conditions and disturbances, I believe that the claimant Jeremy Duxbury has sustained and developed a moderate group of accident related psychiatric conditions and mental injuries.”
“He will never fully recover from the tragic death of his older brother Jake in the subject transport accident’”.
“There is been a mild further decline and deterioration in his psychiatric process (with a moderate decline and deterioration in his psychiatric state) since the subject transport accident.”[12]
[12] PCB 48o-48p.
49 Dr Weissman confirmed his previous opinion that he could not necessarily state that there was any accident related psychiatric incapacity for work and opined that the plaintiff may benefit from the prescription of antidepressant medication and mood stabiliser medication the need for which would be “partly to treat his accident related psychiatric conditions and mental injuries”.
The medical report of Dr John King
50 In a report dated 12 January 2016 Dr King opined that the plaintiff presented with a chronic adjustment disorder commenting:
· On examination, the plaintiff’s
“affect was mildly dysthymic, it was reactive and appropriate to what was discussed. There was no thought disorder, and no preoccupation with depressive themes such as worthlessness or guilt. There are no psychotic symptoms and no current suicidal ideas; his intelligence was not formally tested but is probably average in range. Insight and judgement were largely intact”;[13]
[13] PCB 51.
· the plaintiff presented with a “substantial pre-existing personality disturbance”; associated with this there had been relationship instability, extensive illicit drug abuse and criminal behaviour, but I believe that his adjustment disorder has been caused by the death of his brother who was effectively a parent to him;
· It would be reasonable for TAC to be liable to fund psychological counselling sessions up to 12 over the next year, in order to help to resolve the adjustment disorder. Dr King opined that the TAC should be liable for psychiatric consultations psychiatric medications or treatments for illicit drug use/abuse.
· The plaintiffs current coping is likely to continue indefinitely and no doubt there will be further crises from time-to-time he is at risk of further episodes of depression, of overdoses and of abuse of illicit substances when stressed.
· The plaintiff’s state was stabilised.
51 I interpret the opinion of Dr King to be:
(i) that the plaintiff’s psychiatric state which pre-existed the development of his accident related adjustment disorder was stabilised:
(ii) that the effect of the accident related adjustment disorder upon the plaintiff’s life and lifestyle was not stabilised but was likely to resolve should the TAC fund the psychological counselling recommended by Dr King.
52 For these reasons I am satisfied that the opinion of Dr King does not in any way assist the onus upon the plaintiff of establishing that the transport accident is responsible for a stabilised permanent condition which gives rise to severe consequences as that term is defined by the transport accident act.
The medical report of Associate Prof Peter Doherty
53 Associate Prof Doherty in his report of 10 February 2017 diagnosed the plaintiff is presenting with
“a pre-existing personality dysfunction, drug abuse, psychotic symptoms and history feeling depressed”[14]
[14] PCB 62.
in respect of which he commented:
“it appears that there has been no consistent psychological or psychiatric treatment prior to the transport accident and none after it.”
54 He opined further that the plaintiff’s:
“ use of methamphetamine and marijuana cause him to have a florid psychotic disorder which required admission in early September 2014. He was discharged from hospital when still unwell about two weeks later took a significant overdose with potential high lethality:”[15]
[15] PCB 63.
and commented that the plaintiffs admission in September 2014 was not materially or significantly contributed to by the transport accident, and further that the plaintiff’s psychotic symptoms:
“were present before the death, and the psychotic beliefs persist to this day.”[16]
[16] PCB 66.
55 Having regard to the medical material made available to me when considered in the context of the plaintiff’s affidavit and viva voce evidence I accept each of the above statements made by Associate Prof Doherty.
56 Associate Prof Doherty opined that the plaintiff did not present with a major depressive disorder or post-traumatic stress disorder but rather that that the plaintiff presented with residual features of his pre-existing psychotic condition.
57 Whilst the structure of the report of Associate Prof Doherty is such that it is difficult to arrive at a clear understanding of his opinion, I interpreted to be:
· that the plaintiff presents with psychotic symptoms which were present before the transport accident and which persist to date;
· that this condition interferes with the plaintiff’s ability to work and interferes with his ability to engage in domestic and leisure activities when superimposed upon his pre-existing psychological personality and vulnerability;
· that there is no relationship between the transport accident and the plaintiffs current presentation.
58 Other than for the statements made by Associate Prof Doherty in respect of which I have acknowledged my acceptance, given the discrepancy in the opinion between:
· Associate Prof Doherty on the one hand that the plaintiff presents with no accident related psychiatric illness;
· and the positions of Dr Weissman and Dr King to the contrary;
when considered in the context of the rambling format of Associate Prof Doherty’s report and the difficulty which I had in understanding the basis for his conclusions, will I prefer the opinions of Dr Weissman and Dr King as to that issue.
Findings
59 I am satisfied in this instance that in assessing the consequences to the plaintiff of his accident related impairment, in so far as the plaintiff may present with more than one psychiatric diagnosis in respect of which the accident is a materially contributing factor which diagnoses might arise by reason of differing categorisations by one expert or another as to the nature of the psychiatric illness with which the plaintiff presents for example:
· A traumatic stress disorder on the one hand; or
· A depressive disorder on the other hand;
the plaintiff is entitled to aggregate the consequences of such conditions given that they each arise by reason of the same incident and both involve the impairment of the one body function, namely that of the brain.
60 Equally, where it is the opinion of different experts that the same modality of treatment may ameliorate the symptoms associated with different psychiatric conditions the approach which I should take in analysing the severity of accident related consequences to the plaintiff is to give appropriate weight to the effect which the modality of treatment will have upon each of those individual conditions.
61 It is put on behalf of the plaintiff by Mr Tobin QC who appeared with Mr Clarke that the plaintiff presented, prior to the accident, with a relatively serious and complicated premorbid condition which made him vulnerable and that the effect of the accident has been:
· to halt the plaintiffs progress and rehabilitation as he sought to achieve some control and structure in his life;
· such that the consequences of the plaintiffs now largely stabilised psychiatric state are appropriately described as meeting the definition of severe given the effect of the accident upon an already damaged and vulnerable person who was nevertheless coping with his life and moving in a positive direction.
62 That submission is in turn consistent with the statement by Dr Weissman that, given the comorbidities with which the plaintiff presented, the death of his brother resulted in an even more significant loss for the plaintiff[17].
[17] PCB 44.
63 Whilst I accept this statement by Dr Weissman, I am not satisfied for the reasons I have previously articulated and will continue to develop, that the evidence establishes:
· the degree to which the plaintiff’s pre-existing mental illness had stabilised prior to the intervention of the death of his brother; and
· the degree of the stabilised exacerbation of the plaintiff’s symptoms and incapacity for which the accident is responsible;
64 There is no issue that emotional trauma to which the plaintiff was exposed by the loss of his brother has been superimposed upon his pre-existing mental state which I am satisfied was probably one involving underlying psychosis.
65 In these circumstances, in assessing whether the consequences of the accident are such that they have resulted in the plaintiff presenting with a severe injury within the meaning of that term as employed by the provisions of the Act, I am required:
(i) to make findings as to the consequences for the plaintiff of the mental illness with which he presented immediately prior to the accident;
(ii) assess the difference in the plaintiff’s stabilised accident related incapacity as at the present date when compared with the incapacity with which he presented immediately prior to the accident; and
(iii) determine whether the effect of the accident has been such as to increase the consequences to the plaintiff associated with his current mental illness such that the increase in itself meets the definition of the term “severe” within the mean of the Act.[18]
[18]See Petkovski v Galletti [1994] 1 VR 436.
66 In this instance given the differing opinions by Dr King and Dr Weissman I find myself in a position in which I remain uncertain for the reasons which I will set out below, as to the stabilised consequences of the mental illness with which the plaintiff presents.
67 There can be can be no doubt that Dr Weissman opines that the conditions of:
· chronic psychosocial problems;
· polysubstance abuse and/or dependence;
· psychological and emotional vulnerability;
· personality disorder;
with which the plaintiff presented prior to the accident had a significant impact upon his lifestyle and the stability of his level of functioning and were likely to continue to do so.
68 As I have previously commented:
(i) Whilst I am satisfied that the plaintiff presented as a person doing his best to be a truthful historian;
(ii) I am equally satisfied that a real issue arises as to the plaintiffs reliability as an historian upon issues as to the way in which he was coping with his illness, given the level of insight required to be exercised in that process.
69 In these circumstances I am satisfied that I should be cautious in acting upon the plaintiff’s evidence as to these issues in the absence of at least a modicum of independent supporting evidence.
70 For these reasons, given the relative lack of medical or other supporting evidence provided by the plaintiff his task of making good the onus which he has in this instance is a difficult one.
71 Given the uncertainty of the diagnosis by Dr Pham in 2012 and:
· the absence of any material as to the plaintiff’s presentation to her on the review referred to in the penultimate paragraph of her medical report; and
· the absence of any corroborative evidence as to the stability of the plaintiff’s life while he was a resident in Queensland immediately before the accident:
I am not satisfied that it is appropriate that I act upon:
(i) the plaintiff’s own assessment as to the stability of his life;
(ii) the mere impression of the plaintiff’s mother upon seeing the plaintiff upon his return to Mildura to attend the funeral of his brother;
(iii) the comment by Prof Joe Sasadeuze to the effect that the plaintiff as seeming “to be slowly straightening out his life”.
in making a determination as to the stability of the plaintiffs premorbid illness or the effect which that illness had upon the ability of the plaintiff to engage both in work and daily life, which approach was urged upon me by Mr Tobin QC in final submissions.
72 When considering both the affidavit evidence and the medical evidence, there is a dearth of any persuasive evidence which allows me to fix with any degree of confidence:
· the precise effect which the plaintiffs premorbid psychiatric condition was having upon his ability to function at the time of the accident and would have had into the future; or
· the impact of the injury sustained by the plaintiff in the accident upon that level of function.
73 It is clear given that:
(i) Dr King regards the plaintiff’s chronic adjustment disorder not to have stabilised and considers that with appropriate treatment there is a prospect that the disorder will resolve; and
(ii) The plaintiff has now identified a counsellor who he intends to consult with to assist him to deal with his symptoms;
an issue is identified by Dr King as to the stability of the plaintiffs current accident related injury.
74 In his first report Dr Weissman identified one of multiple diagnoses applicable to the plaintiffs presentation[19] as including a chronic adjustment disorder with sad, depressed, anxious, and angry mood states of moderate intensity of severity.
[19]PCB 44.
75 At PCB 47 of that report he recommended that the plaintiff may benefit from seeing an experienced male psychologist on a 2 to 3 weekly basis for approximately 12 months to treat one of his listed diagnoses, namely the plaintiffs accident related grief, bereavement traumatisation and mixed disturbance of emotions.
76 Although Dr Weissman did not refer specifically to these issues in his most recent report, given his comment:
· that there has been no material change in the plaintiff’s psychiatric state since he authored his original report; and
· that his original report should be read in close conjunction with his most recent report;
I am satisfied that the opinions to which I have referred to in the previous paragraph continue to apply.
77 In his first report Dr Weissman expressed little enthusiasm as to the likelihood that the counselling might provide any real assistance to the plaintiff given the plaintiff’s statement that he did not feel he benefited from talking with professional people about his emotional state.[20]
[20]PCB 47
78 Dr Weissman made a similar comment in his most recent report.[21]
[21]PCB 48O
79 These comments by Dr Wisseman were however made in the absence of any knowledge that the plaintiff had identified a counsellor with whom he felt confident and who he intended to consult.
80 It follows that I am satisfied that:
· as to Dr King’s diagnosis that the plaintiff presents with an adjustment disorder in respect of which a positive prognosis exists if appropriate counselling is provided; the counselling the subject of Dr King’s recommendation is available to the plaintiff who has in turn indicated his intention to seek that counselling;
· as to Dr Weissman’s diagnosis that the plaintiff presents with “grief, bereavement, and mixed disturbance of emotions” which may benefit from appropriate counselling, the counselling the subject of Dr Weissman’s recommendation is available to the plaintiff who has in turn indicated his intention to seek that counselling.
81 Whilst I have previously referred to Dr King’s positive prognosis associated with counselling undertaken by the plaintiff, no evidence is available to me as to the likely outcome upon the incapacity to the plaintiff which is likely to be associated with the counselling recommended by Dr Weissman.
82 Notwithstanding that fact, I am satisfied that I should take the view the that the counselling would not have been recommended by Dr Weissman if he was not of the opinion that it may result in some improvement in the plaintiff’s overall level of functioning.
83 The state of the evidence however does not allow me to fix with any degree of comfort the potential outcome of the proposed counselling or the overall effect which that outcome may have upon the other diagnoses identified by Dr Weissman.
84 Further whilst in his most recent report Dr Weissman expressed the opinion that the plaintiff’s psychiatric symptoms, conditions and impairments had stabilised;[22] in the same report Dr Weissman opined that the plaintiff may benefit from antidepressant medication and mood stabiliser medication in treatment of his accident related psychiatric conditions and mental injuries.[23]
[22]PCB 480o-4.2
[23]PCB $80o-4.4
85 For the reasons set out above I am satisfied that I should interpret Dr Weissman’s opinion to be that the plaintiff’s psychiatric symptoms and impairments may be ameliorated to some extent by treatment in one from or the other which is available to the plaintiff given his access to funding for appropriate medical treatment by the TAC.
86 The findings above as to the stabilised nature of the plaintiff’s current presentation, have on no way been addressed by the submissions adduced by either of the parties in this instance.
87 That having been said:
· the onus is upon the plaintiff to providing the evidence which allows me to undertake the analysis required of me by the decision of the Court of Appeal in Petkovski v Galetti[24], to which I previously referred and in addition to satisfy me that the plaintiff’s accident related condition is stabilised; and
· The findings which I have made above give rise to a flaw in the plaintiff’s case which must invariably result in the plaintiff’s application failing.
[24][1994] 1 VR 436.
88 Given the failure of the parties to make specific reference in their submissions to the finding I have made in the previous paragraph, in the event that I am mistaken in the reasoning process which I have applied, I consider it appropriate to undertake an alternative analysis of the evidence in the case on the assumption that the plaintiff’s condition is stabilised and that no significant improvement will be achieved in the plaintiff’s level of functioning notwithstanding the intervention of the counselling to which I have referred.
Analysis of consequences assuming that the plaintiffs presentation is currently stabilised
89 Whilst the plaintiff asserts in his affidavit evidence that his accident related injury has impacted upon his ability to further his training and education, there is no evidence which persuades me that this was a real prospect for the plaintiff. Rather the evidence suggests the contrary, it being clear from the plaintiff’s evidence that prior to the accident he had enrolled in a course with RGIT Australia which he did not complete by reason of “lifestyle issues” (namely the instability in his life).
90 In these circumstances I am not satisfied that the plaintiff has demonstrated that the accident has adversely affected his ability to pursue retraining.
91 In his affidavit evidence the plaintiff states that he now suffers from difficulty in sleeping and from nightmares.
92 The evidence clearly establishes that the plaintiff suffered from difficulty sleeping for many years before the accident and that he had regularly employed marijuana to assist him in his sleep.
93 Whilst I am satisfied that it is probable that the death of his brother has impacted in a negative way upon the plaintiff’s ability to sleep, I am unable to fix with any certainty the degree of that impact.
94 Given the evidence that at the present time the plaintiff has been able to reduce his use of marijuana and discontinue his use of Valium (each, of which I interpret the plaintiff’s evidence to be, were employed by him to assist him with his sleep), but now employs Imrest (about which there is no evidence as to whether it is a prescription medication or otherwise), I find myself in the position of uncertainty as to whether the plaintiff’s sleeping pattern is currently significantly different from that which pre-existed the accident.
95 As to the plaintiffs reported complaints that the accident has caused him to be:
· depressed; and
· have difficulties with his anger control;
which difficulties that have impacted upon his life in an adverse way following the accident, the report of Dr Pham dated June 2012 makes it clear that when the plaintiff presented to her he did so with a history of fighting with ex-girlfriends and reacting aggressively to external stimuli, the plaintiff commenting that this behaviour had resulted in him being involved in “all sorts of trouble, mostly fights and assaults”.
96 In the context of that history and in the absence of any report from Dr Pham or other evidence to establish that the treatment plan suggested by her had resulted in a significant change in the plaintiff’s behaviour, I am not satisfied that the plaintiff has established the degree to which, if any the accident has resulted in an alteration in his behaviour which is affected the stability of his life or his relationships.
97 For the reasons to which I have previously referred, I do not accept that the plaintiff has established that his suicide attempt was related to the death of his brother.
98 Further as to the plaintiff’s perception that his life has continued to spirall downward the evidence tends to suggest otherwise when account is taken of the fact that the plaintiff has recently been able to reduce his use of illicit drugs and his use of Valium
99 The opinion expressed by Dr Weissman that:
(i) the plaintiff currently presents with a moderate group of accident related psychiatric conditions and mental injuries:
(ii) does not currently present with an accident related psychiatric condition which adversely impacts upon the plaintiff’s premorbid capacity for work;
does not meet the descriptor of an impairment which could be described as a “severe injury” as that term is defined by the Act.
100 Further when account is taken of the fact that the plaintiff’s accident related injury:
· has not impacted adversely upon the plaintiffs pre-accident capacity for work in circumstances which the plaintiff has demonstrated the existence of a capacity for work by reason of the fencing work he has undertaken since the accident:
· has not in the past required and does not presently require management by the continued use of significant levels of prescription medication;
· has not in the past required and does not presently required intensive or for that matter regular medical treatment from a general practitioner or a specialist of the type which would attest to the severity of the accident related mental illness with which the plaintiff presents;[25]
I am satisfied that the plaintiff has suffered a psychiatric injury the consequences of which would most probably meet the definition of serious as employed by the Transport Accident Act in that it gives rise to an impairment of function which is more than significant or marked and is at least very considerable, I am not satisfied that it meets the more stringent definition of being a severe injury as that term is defined by the Act.
[25]Both the lack of need for treatment or constant resort to medication tend to suggest that the plaintiff’s accident related illness is not so severe as to require management by either of these forms of treatment.
Conclusion
101 For the reasons set out above I cannot be satisfied that the extent of the exacerbation of the plaintiff’s pre-existing psychiatric state by the effect of the accident is such that it meets the very high threshold imposed by the provisions of the Transport Accident Act in defining the concept of severe injury.
102 I will hear the parties as to the orders which are be made in this instance.
---
APPENDIX 1
| Clinic | Date | Psychiatric Medication | Page Ref | |
| Dr Sami Abed (202 Ontario) | 20/08/2001 | Bronchitis | - | Exhibit 3. 41 |
| Dr Sami Abed (202 Ontario) | 27/09/2001 | Mother made appointment for referral regarding behaviour | - | Exhibit 3. 42 |
| Dr Hartley (202 Ontario) | 24/06/2003 | Referral – youth counselling | - | Exhibit 3. 43 |
| Dr Zainalbdin (Tristar) | 31/05/2009 | Lower back pain. Cough | - | Exhibit 3. 22 |
| Dr Ugo Egesi (Tristar) | 22/02/2010 | Left sided chest pain | - | Exhibit 3. 21 |
| Dr Shaojun Lui (Tristar) | 22/02/2010 | STI and blood born disease check up. | - | Exhibit 3. 21 |
| Dr Shaojun Lui (Tristar) | 01/04/2010 | Impetigo infection | - | Exhibit 3. 20 |
| Dr Ugo Egesi (Tristar) | 28/07/2011 | Lower back pain. | - | Exhibit 3. 19 |
| Dr Hartley (202 Ontario) | 21/07/2011 | Medical Certificate. Unable to work for 07/05/2011 to 07/08/2011. Diagnosis 1 – post fractured left metatarsal. Diagnosis 2 – anxiety/depression. Painful lateral aspect (right foot). Unable to stand on foot for long periods. | - | Exhibit 3. 48 |
| Dr Ugo Egesi (Tristar) | 29/07/2011 | Imaging for review. Tramal. | - | Exhibit 3. 19 |
| Dr Hartley (202 Ontario) | 29/09/2011 | Mental Health Assessment. 1. Anger management. 2. Substance abuse. | - | Exhibit 3. 50-51 |
| Dr Joe Sasadeuz (infectious disease consultant) | 01/06/2012 | Infectious disease consultant | - | Exhibit 2. 24 |
| Dr Hieu Pham (psychiatrist) | 27/06/2012 | Assessed by Dr Pham in context of Hep C diagnosis. Diagnosis – untreated psychotic illness. Specific questioning did not reveal depressive illness or anxiety | Olazapine (anti-psychotic medication) | Exhibit 2. 25-26. |
| Dr Khaled Fuad (Tristar) | 27/07/2012 | Gastoenteritis | - | Exhibit 3. 19 |
| 23 July 2013 – Jake Duxbury’s Death | ||||
| Dr Donald Hartley (202 Ontario) | 13/08/2013 | Report to TAC. Never treated for claim accident. Notes on 13 August 2013 prescribed sleeping tablet. | Sleeping tablet | Exhibit 5. 17 |
| My Health Fortitude Valley | 28/08/13 | Taking 1 Temazepam prn for sleeping since one month ago. Jake died a month ago. MCA. For script. Not sleeping well. P pm Temazepam. States not really depressed. Not suicidal. Appetite decreased a little. Concentration not the best. Motivation fine. Also referred to sore back of left ankle. | Temazepam | Exhibit 3. 63 |
| My Health Fortitude Valley | 06/09/13 | For script for Temazepam. Still needs it otherwise cannot sleep well. Improving a bit. Said suffering from depression most of the days of his life. Never taken anti-depressants. Keen to see psychologist for counselling. No direct reference to Jake. | Temazepam | Exhibit 3. 65 |
| Tri-Star Medical | 03/01/14 | Injury to foot / Jake passed away in July and is feeling down and depressed. Is going through Court and feeling down. Had drug induced psychosis. Anxiety induced insomnia. | Celebrex | Exhibit 3. 18 |
| Dr Hartley (202 Ontario) | 01/02/2014 | Medical Certificate Anxiety and depression Poor sleep Poor concentration | - | Exhibit 3. 47 |
| Tristar Medical | 18/02/14 | URTI | - | Exhibit 3. 17 |
| Dr Buckley | 12/04/14 | Refers to death of Jake and other non- transport accident related stressors. | Seroquel | Exhibit 3. 37 |
| Dr Buckley | 17/04/14 | Attends with mother. Agitated today since arriving here. Home situation fluctuates. 2 people moved out. Still overcrowded. Disordered discourse. Sometimes acrimonious. Abusing mother. Angry and hurt with everyone. Gives everyone a serve. If they aren’t hurt emotionally then I will hit’em. Psych substance abuse. Poor sleep. Early morning waking. Hallucinations. No suicidal thoughts. No IV track marks. Denies IVDU. Counselled regarding clinical management. Chronic and complex case. No direct reference to Jake | - | Exhibit 3. 33/38 |
| Tristar Medical | 18/06/14 | Respiratory symptoms | - | Exhibit 3. 17 |
| Tristar Medical | 15/07/14 | Repeat scripts. Past history of GAD. Acne Vulgaris. No reference to Jake. | Doxy Epiduo Temazepam | Exhibit 3. 16 |
| Tristar Medical | 19/08/14 | Conjunctivitis | Temaze | Exhibit 3. 16 |
| Mildura Base Hospital | 03/09/2014 – 08/09/2014 | Inpatient stay at Ward 5. | Diazepam Olanzapine | Exhibit 2. 28-29 Exhibit 3: 89 |
| Dr Buckley | 12/09/14 | Suicidal thoughts. Poor sleep. Early morning wakening. Depressed mood. Panic attacks. Hallucinations. Substance abuse. Major depression. | Zoloft Temazepam Sertraline Seroquel | Exhibit 3. 38 |
| Mildura Base Hospital | 15/09/14 | Suicide attempt. Discharged 16/09/14. Refers to multiple stressors including the death of Jake | - | Exhibit 3. 69-89 |
| Tristar Medical | 20/05/15 | Sinusitis | - | Exhibit 3. 15 |
| Tristar Medical | 16/06/15 | Diazepam for severe anxiety. Sore throat. Acne. No reference to Jake. | Diazepam | Exhibit 3. 14 |
| Tristar Medical | 17/06/15 | Hep C | - | Exhibit 3. 14 |
| Tristar Medical | 17/08/15 | Is here. Has been attending DACS SCHS for three weeks. Need urine drug screen test. Has a letter from Sunraysia as he is undergoing counselling for drugs, which patient refused to give any further history. Requested diazepam. Dr refused to prescribe. No reference to Jake. | - | Exhibit 3. 13 |
| Tristar Medical | 11/09/15 | Valium prescribed. Unknown as to why. No reference to Jake. | Valium | Exhibit 3. 12 |
| Tristar Medical | 23/09/15 | Urine drug screen. URTI | - | Exhibit 3. 11-12 |
| Tristar Medical | 09/10/15 | Pt for urine drug screen test and repeat request for Valium. No reference to Jake. | Valium | Exhibit 3. 11 |
| Tristar Medical | 22/10/15 | Attended for script. No reference to Jake. | Valium | Exhibit 3. 10 |
| Tristar Medical | 27/10/15 | Attended to collect test results | - | Exhibit 3. 10 |
| Tristar Medical | 13/11/15 | Urine drug screen test | - | Exhibit 3. 10 |
| Tristar Medical | 17/11/15 | Here for report and supporting letter as to why he is on Valium. Upon asking he said it helped him for his insomnia and anxiety. Report not validated yet but came back positive for cannabis and benzodiazapam. No reference to Jake | - | Exhibit 3. 9 |
| Tristar Medical | 26/11/15 | Vomiting | - | Exhibit 3. 9 |
| Tristar Medical | 14/01/16 | Abdominal pain | - | Exhibit 3. 9 |
| Tristar Medical | 21/01/16 | UTRI | - | Exhibit 3. 8 |
| Tristar Medical | 23/02/16 | STI screening | - | Exhibit 3. 8 |
| Tristar Medical | 03/03/16 | Vomiting | - | Exhibit 3. 7-8 |
| Tristar Medical | 24/04/16 | Thoracic Pain | - | Exhibit 3. 7 |
| Tristar Medical | 14/07/16 | UTRI | - | Exhibit 3. 6-7 |
| Tristar Medical | 25/08/16 | URTI | - | Exhibit 3. 6 |
| Tristar Medical | 08/09/16 | Throat infection. No other concern | - | Exhibit 3. 5-6 |
| Tristar Medical | 15/09/16 | Non traumatic left wrist swelling | - | Exhibit 3. 5 |
| Tristar Medical | O4/10/16 | Fever – URTI | - | Exhibit 3. 4-5 |
| Tristar Medical | 07/10/16 | Cellulitis right hand | - | Exhibit 3. 4 |
| Tristar Medical | 11/10/16 | Cellulitis right hand | - | Exhibit 3. 3 |
| Tristar Medical | 13/10/16 | Cellulitis right hand | - | Exhibit 3. 3 |
| Tristar Medical | 28/02/2017 | Prescription | Imrest | Exhibit 4 |
0
0
0