Gashi v Transport Accident Commission
[2015] VCC 695
•29 May 2015
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-05134
| ISEN GASHI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 October 2014 | |
DATE OF JUDGMENT: | 29 May 2015 | |
CASE MAY BE CITED AS: | Gashi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 695 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric injury – nature of psychiatric injury – paragraph (c) of definition of “serious injury”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors (1998) 3 VR 833; Petkovski v Galletti (1994) 1 VR 436; Hunter v Transport Accident Commission (2005) 43 MVR 130; Woolworths Ltd v Warfe [2013] VSCA 22; Transport Accident Commission v Kamel [2011] VSCA 110; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Davidson v Transport Accident Commission [2015] VSCA 12
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr M Fogarty | Slater & Gordon |
| For the Defendant | Mr W R Middleton QC with Ms A M Magee | HWL Ebsworth |
HIS HONOUR:
Introduction
1 By way of Originating Motion, Isen Gashi (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”), to bring common law proceedings to recover damages for a psychiatric injury (“the injury”) suffered by him arising out of a transport accident on 20 September 2006 (“the transport accident”).
2 The plaintiff and his treating psychiatrist, Dr Stella Kwong, gave evidence and were cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraph (c) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section—
serious injury means—
(a) …
(b) …
(c)severe long-term mental or severe long-term behavioural disturbance of disorder; or
(d)… .”
5 In his opening, Senior Counsel for the plaintiff described the circumstances surrounding this matter as “a little bit unusual”.[3] In particular, he noted that there was the evidence of four psychiatrists in the proceeding, each with a different diagnosis. To quote Counsel, he stated:
[3]Transcript (“T”) 3, L24
MR O’DWYER:
A:“… There are four psychiatrists, and Your Honour would have had this experience before, and there are four different takes on it, different diagnoses. The diagnoses range from an aggravation of schizophrenia, that’s one of them. He’s got multiple psychiatric problems but that’s one of them.
Two,at the other end of the spectrum, one of the plaintiff’s[4] psychiatrists said that whilst he believes he’s got major depression, that there’s deliberate embellishment, so there’s a wide scope there. Essentially what you have is a treating psychiatrist, Dr Stella Kwong, who’s seen the plaintiff on over 40 occasions. She commenced seeing him about a year after the accident. She expresses the view that – she came up with this diagnosis in 2012 – that he had a schizophrenic condition and that he had some low level of that prior to the accident and that had been significantly or substantially aggravated.”
HIS HONOUR:
Q:“Pausing there, is that your primary way of putting the case?---”
MRO'DWYER:
A:“No. Your Honour, I would resist the proposition that we have to satisfy you on the balance of probabilities just what precise condition the plaintiff has. We would contend that what we need to do is satisfy Your Honour that the plaintiff, as a consequence of, whether it’s initiation or aggravation, has a condition the consequences of which are severe.”[5]
[4]I believe Counsel meant one of the defendant’s psychiatrists (Dr Jager)
[5]T3, L29 – T4, L24
6 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a)“The injury” suffered by him was the result of the transport accident;
(b)The requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[6] wherein a majority of the then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”.[7]
(c)The above quotation from Humphries & Anor v Poljak largely deals with the concept of “serious injury” as defined within s93(17)(a) of the Act, which deals with essentially organic injuries. However, the approach to be taken is the same as with serious injuries as defined within s93(17)(c) of the Act, save that it is important to note the word “severe” is used within paragraph (c) rather than “serious” as used in paragraph (a) of the definition of “serious injury”. In Mobilio v Balliotis & Ors,[8] the then Full Court of Victoria contrasted the use of the word “serious” in s93(a) with the use of the word “severe” in s93(17)(c).[9] The comments by the various judges in Mobilio found that the word “severe” denotes that a higher standard is to be reached than “serious”. For example Brooking JA stated:
“… Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[10]
[6][1992] 2 VR 129
[7]Humphries & Anor v Poljak (op cit) at 140. See also Mobilio v Balliotis & Ors [1998] 3 VR 833
[8]Op cit
[9]Mobilio v Balliotis & Ors (op cit) at 834-835 (Winneke P), at 846 (Brooking JA), at 854-856 (Ormiston JA), at 858 (J D Phillips JA) and at 860-861 (Charles JA)
[10]Mobilio v Balliotis & Ors (op cit) at 846
7 The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[11]
[11]See Hunter v Transport Accident Commission (2005) 43 MVR 130; Woolworths Ltd v Warfe [2013] VSCA 22; Transport Accident Commission v Kamel [2011] VSCA 110
8 It was common ground that the plaintiff suffered a low-back injury when employed at Loy Yang in Morwell in 1984, and had not worked since that date.
9 When queried as to whether their client would rely on pain and suffering and/or pecuniary loss consequences to establish the “serious injury”, I note the following recorded in the transcript:
MR O’DWYER:
A:“Yes. We can’t usefully contend that he’s suffered any great financial consequences, save for this: Up to about 2002/2003, and we don’t have a precise date, he was on disability pension. Thereafter, that is in the few years prior to the accident, he was on Newstart.”
HIS HONOUR:
Q:“Had he obtained any employment?”---
MR O’DWYER:
A:“No, he hadn’t.”
HIS HONOUR:
Q:“Had he applied for any jobs?”---
MR O'DWYER:
A:“Given his history of not working prior to the accident, it's not a profitable path for us to pursue the proposition that he’s suffering economic loss. He’s certainly lost the potential, we would say, in the sense that it is now put that he has no working capacity, whereas it might have been argued before that he had working capacity which he wasn't exercising. He’s not a young man, he's 59 at the moment, although he was certainly a lot younger at the time of the accident. … .”[12]
[12]T5, L17 – T6, L4
The issues
10
Senior Counsel for the plaintiff stated to the Court that the analysis of the present condition of the plaintiff by the psychiatrist, Dr Weissman,
“makes the most sense” and that that approach will be urged on the Court.
11 When queried as to the issues in the proceeding, Senior Counsel for the defendant asserted:
(a) The defendant disagrees with the proposition put by Senior Counsel for the plaintiff that the Court does not have to be satisfied as to the nature of the condition that arises from the transport accident. In this respect, Senior Counsel for the defendant noted that there are multiple diagnoses, no uniformity between the doctors and there are “extremes” amongst the diagnoses;
(b) It is unclear and difficult to determine precisely what consequences flow from whatever psychiatric condition it is said the plaintiff has, and whether any such consequences did not exist prior to the transport accident. There are difficulties with the material set out in the reports of Dr Weissman and that of Dr Kwong, the treating psychiatrist;
(c) An examination of the health of the plaintiff prior to the transport accident demonstrates that it will be necessary to apply the principles enunciated in Petkovski v Galletti[13] and it will be incumbent on the plaintiff to establish the extent of any aggravation of a pre-existing psychiatric condition satisfies the requirements of the definition of “serious injury” contained within paragraph (c).
[13] [1994] 1 VR 436
The evidence of the Plaintiff
12 The plaintiff gave evidence that the contents of affidavits sworn by him on 4 October 2012,[14] 25 September 2011[15] and on 30 September 2014[16] were “true and correct”.
[14]Exhibit 2 at pages 2-5 PCB
[15]Exhibit 2 at pages 6-9 PCB
[16]Exhibit 2 at pages 100-12 PCB
13 The plaintiff also gave viva voce evidence that he suffers pain in the middle of his chest most of the time, or, when he sneezes or coughs, he suffers a “very sharp pain”.
14 The plaintiff also gave viva voce evidence that he has trouble with what he describes as “short breathing” which he thinks came on after the transport accident. He described short breathing to be:
“After the accident, I’m short breathing when I’m alone in this room because so big, but if I’m by myself, yes, I feel panicked, I feel not enough air in me.”[17]
[17]T19, L12-15
15 The plaintiff also gave evidence that although he has some neck pain, such pain comes and goes and it is “not that big pain”.
16 When queried about back pain, the plaintiff stated:
“I do have back pain but when it comes, it comes very, very bad but, back pain, I got back pain but when it come back pain I got very – I can’t move for weeks.”[18]
[18]T19, L20-23
17 The plaintiff described how he was on a Disability Pension for a long time, after which he was transferred to a Newstart Allowance, which he has had for approximately a few years.
18 By way of his first affidavit, the plaintiff gives the following salient evidence:
· He was born in Albania in March 1955 and completed primary school. He then worked on the family farm to the age of twenty-two, before migrating to Australia in 1978. He describes his English skills as “poor”.
· In about 1983, he married, and has four adult children.
· He worked in Australia until he injured his low back in “the early 1980s” when working at the Loy Yang power station in Morwell. He has not worked since then and received WorkCover payments for a period of time, and thereafter, social security benefits.
· Since the work injury, he has had ongoing fluctuating back pain which has required conservative treatment.
· Despite having injured his back, he was still “able to lead a relatively active life” and in particular, was able to do things around the house, spend time with his family, drive a car and socialise at a local club.
· In particular, he describes the circumstances of the transport accident in the following terms:
“On 20 September, 2006, I was driving my car in Station Street, Deer Park, when I was involved in a collision when a car driven by an elderly lady drove into the path of my car from the left side. It was a major collision. I struck my chest on the steering wheel, despite the fact that I was wearing a seatbelt. I believe I may have lost consciousness for a short period of time. I had pain in my chest immediately after the collision, as well as pain in my spine. Ambulance attended and I was taken to the Western Hospital, where I was investigated. Following those investigations I was led to believe I had suffered a fractured sternum.”[19]
[19]Exhibit 1, paragraph 4 at pages 3-4 PCB
· Following the transport accident, he has had ongoing chest and spine pain which at times has been severe, causing him to become “very frustrated, irritable and angry”. He described taking out his frustration on his family.
· He attended his general practitioner, Dr Rowais, and was given painkillers, and ultimately was referred to Dr Stella Kwong for psychiatric treatment. Dr Kwong put him on medication, including Cymbalta and Seroquel. He continues to regularly attend Dr Kwong.
· Since the transport accident, he has had ongoing chest pain, and in October 2007, was referred to the orthopaedic surgeon, Professor Goldwasser, who arranged a further CT scan, and he was informed by Professor Goldwasser that his sternum had not healed correctly but there was no surgery which was available to fix the problem.
· He has ongoing chest pain and has difficulty breathing and he believes that the breathing problems not only relate to the fractured sternum but to symptoms of anxiety that he now suffers.
· He describes himself feeling frequently “very upset, angry and sorry for myself”. He lacks motivation and has no interest in socialising. He cannot stand people talking to him.
· He has returned to driving a car but is anxious in the car and does not like travelling as a passenger. He does not socialise with friends as much or socialise at the club as much. Occasionally, he will go out for a coffee or to play cards with a friend but more often than not he prefers to stay at home and simply watch television.
· He describes his main problem from the accident to be “my ongoing emotional condition”. In particular, he states:
“… At times I have felt like life is not worth living. I frequently feel sad, depressed, anxious and tearful. I have flashbacks and intrusive thoughts about the accident. I have nightmares. I can vividly recall seeing the old lady and thinking that she must have been killed, because it was a bad smash. I get no enjoyment from life now. I get no enjoyment from my family life. It has affected my relationship with my children and my wife.”[20]
[20]Exhibit 2, paragraph 9 at page 5 PCB
19 By way of his second affidavit, the plaintiff gives the following salient evidence:
· Since his previous affidavit, he has continued to suffer from low mood and angry outbursts and over the last six months, these feelings have become worse.
· Whereas before the transport accident he was generally happy and relaxed and his main activities included attending a local club where he would play cards and drink coffee with friends, he now does not like seeing people and prefers to be on his own.
· Because of the feeling that people are talking about him and because of his low mood, he has dramatically decreased how often he goes to the club. Over the last five to six months, he has hardly gone to the club at all. He spends his time watching television and occasionally, he will go for a walk to get out of the house. He feels isolated and lonely.
· He becomes angry a lot more easily since the transport accident and has “angry outbursts” quite often. These outbursts are normally directed at his family and in particular, his wife, as she gets on “my nerves very easily”. He considers his relationship with his wife has changed and that she is no longer on his side.
· He still feels a lot of pain, especially in his chest and neck, and the pain makes him “angry”. He takes Panadeine Forte from Dr Rowais to control the pain.
· He cries because of these feelings of isolation and because of his angry outbursts. Although he was not a man who cried prior to the transport accident, he now becomes tearful quite often and cries quietly on his own at home.
· Although he does drive himself, he does not like being a passenger in the car when his wife is driving, at which time he becomes angry and anxious.
· He thinks about the collision often and thinks “why me?” and that there is no light at the end of the tunnel.
20 By way of his third affidavit, the plaintiff gives the following salient evidence:
· Since his last affidavit, “not a great deal has changed”. He continues to see his general practitioner, Dr Rowais, about once a month, and continues to attend Dr Kwong about every four to six weeks. He continues to be prescribed Cymbalta, Zyprexa and Panadeine Forte.
· He considers himself “depressed” and that before the transport accident, he never considered himself depressed. He does recall that when he initially hurt his back and there was discussion about spinal surgery, he recalls being apprehensive about such surgery.
· He continues to feel angry, fights a lot with his wife, ruminates and thinks about the transport accident every day. He feels depressed, sad, frustrated, hopeless and miserable.
· He continues to hear voices on a regular basis and at times, has thought he would be better off dead but has never acted on those thoughts. His life is miserable and he gets no enjoyment.
21 Under cross-examination, the plaintiff gave the following salient evidence:
· He has been in Australia since 1978 – about thirty-six years – and was working at Loy Yang in 1984 when he suffered a low-back injury. Since then, he has not worked.
· Shortly after the low-back injury, he was seen by orthopaedic surgeons, Mr Cullen and Mr O’Brien, both of whom recommended that he undergo fusion surgery for his back. Because of his fear of such surgery, he did not undergo that course of treatment.
· He underwent back pain treatment for four or five years, and during that period of time, had no psychological treatment. In particular, the following evidence was given by the plaintiff:
Q:“Did you have any psychological or psychiatric treatment during that time?---
A:No.
Q:Have you ever had any psychological or psychiatric treatment?---
A:No.
Q:Have you ever been on psychiatric medication such as an antidepressant?---
A:As far as I’m concerned, no.
Q:Certainly you wouldn’t be on an antidepressant for a long period of time, would you?---
A:No.”[21]
[21]T20, L31 – T21, L7
· At the time of his back injury, his general practitioner was Dr Nick Loizou, situated at the Moonee Ponds Medical Centre, and at some time, he changed to Dr Rowais, whose clinic is in Flemington. He continues to attend Dr Rowais.
· He had some “issues with my lower back” before the transport accident but they are not “as prominent as after I had the [transport accident] …”.[22] He described the back pain as “much worse” since the transport accident.
[22]T22, L11-14
· After the transport accident, he had pain in the chest and he was taken to the Western General Hospital, where he stayed overnight.
· He accepted that he “probably” went to Dr Rowais on 5 September 2006, about fifteen days prior to the transport accident.
· He accepted that he was suffering poor sleep because of his back injury prior to the transport accident “a little bit” but after the transport accident, it felt “worse”.
· He cannot remember the precise dates that he attended doctors or what his complaints were prior to or after the transport accident.
· He accepted that he told Dr Kwong that after the transport accident, he became nervous, upset and depressed, and his mood was up and down and he shouted at the kids. Furthermore, he accepted he told Dr Kwong that sometimes he hit his children. He denied that he ever hit his children prior to the transport accident. When it was put to him that Dr Loizou’s records reveal that he was “angry” in 1986, or thereabouts, and that he hit his children, he said that he could not recall.
· When it was put to him that from April 1985 he was being prescribed Tryptanol by Dr Rowais, and this continued for many years, he stated that he did not know what Tryptanol was.
· When consulting Dr Kwong, he does not have an interpreter present and the consultation is undertaken in English.
· When queried about how many times he has been overseas since the transport accident, the plaintiff answered “maybe three or four times” but was “not sure”.
· He accepted that in 2002, in the middle of the year, he travelled to Kosovo via Frankfurt, and in 2004, he travelled to Kosovo via Vienna and Zurich. Furthermore, he accepted that probably he travelled on each occasion for about two or three months.
· He flew to Kosovo and Macedonia on 20 June 2006, arriving back in Australia in 10 August 2006 (about six weeks prior to the accident).
· On 17 February 2008, he travelled from Australia to Vienna and then on to Kosovo, and returned to Australia on 15 May 2008.
· On 19 April 2011, he travelled to Zurich and then entered Pasjak, Croatia, by car, which was driven by his brother. He went to visit relatives and returned to Australia on 10 June 2011.
· On 22 July 2012, he again travelled to Kosovo and returned to Australia on 30 September 2012.
· On 16 March 2013, he entered Kosovo Airport and was out of Kosovo from 29 March 2013 to 25 July 2013, and returned to Australia on 28 August 2013. He attended in 2013 because of his daughter’s wedding.
· He did not know whether he would travel in 2014.
· He plays cards “not very often, not usual, no” at the Macedonian Club and over the last year, only went about two or three times, not staying long.
· He still hears voices “… three times a week, twice a week, I do hear voices”.[23] In particular, the following evidence was given:
[23]T86, L19-23
Q: “When you see Dr Serry in 2013 at page 29 and following, he records that you weren’t hearing voices at that time, when you see him in 2013. Did you stop hearing voices?---
A: No, I still hear voices, I don’t know (indistinct) I don’t know what they say, but I still hear voices, but three times a week, twice a week I do hear voices.
Q: Page 31, end of paragraph 4, ‘He felt that in the past he may have heard voices during the day but these voices have not been present recently’?---
A: In the daytime, no, but night-time, yes, still I hear.
Q: Did you hear voices before the accident?---
A: No.
Q: Never?---
A: Never.
Q: But you were mentally very good before the accident?---
A: I don't know. Probably I was good.”
HIS HONOUR:
Q: “As best you can say, when did you first start hearing voices?---
A: After the accident, probably three or four months later.
Q: Three or four months after the accident?---
A: Yes.”[24]
[24]T86, L16 – T87, L3
· When taken to an entry of Dr Rowais on 5 September 2006 which recorded that one of the reasons for the visit was “depression”, he could not give any reason why the doctor would have recorded that reason for the visit.
· He was taken to the notes of Dr Rowais on 2 August 2007 in respect of a consultation, and the reason for the visit was recorded as “depression, Post-Traumatic Stress Disorder”. At that time, Dr Rowais recorded:
“Normal self-esteem, no irrational fears, no panic attacks, no compulsive behaviours, no delusions, no hallucinations, no suicidal thoughts, no substance abuse.”
The plaintiff simply stated he did not know what the doctor recorded.
· He was taken to a record of Dr Loizou on 16 April 1988, wherein it is recorded “Power in foot, no apparent weakness, hysterical behaviour” and the plaintiff gave evidence that he knew nothing of these matters.
· He was also taken to a note on 30 June 1986 where it was recorded, amongst other things “Patient feels very irritable. Hits his kids. For increase in Tryptanol”, to which the plaintiff responded he might have hit them but probably a slap just to tell them to be quiet.
· It was also put to him that a note on 24 March 1997 read:
“On questioning, fatigue worse, sleep is okay. Ruminating plus plus. Admits to crying, one year.”
When asked why he was crying, the plaintiff said he did not know. In particular, the following evidence was given:
Q: “Were you ruminating or crying in 1997?---
A: Maybe I cry, maybe, I don’t know, I can’t recall, I don’t know.
Q: He says he prescribed you Aropax. Why did he do that, do you know?---
A: What is Aropax?
Q: It’s an antidepressant?---
A: I don’t remember taking any tablets. … .”[25]
[25]T95, L26-29
· When queried whether he told Dr Kwong (as recorded in her notes) that in his last visit in September 2014, he told her if he only got $10,000 or $15,000 from this case, he would jump off the Westgate Bridge, the plaintiff answered:
“I don’t know. Probably I told her.”
· The plaintiff was shown a Claim Form he completed on 4 June 2007 wherein he has recorded his injuries to be “fractured sternum, whiplash, back” with no reference to any psychiatric injury, to which the plaintiff says “I don’t know”.
· Also, he was shown Question 26 on page 63, which enquired:
“Have you ever made a worker’s compensation claim?”
to which the plaintiff answered “no”.
The plaintiff accepted that he did answer “no” but he considered that the earlier claim was for a different injury; that is back pain.
· At the end of his cross-examination (there being no re-examination), the Court made the following enquiries:
HIS HONOUR:
Q:“I just want to ask this: Mr Gashi, Dr Kwong is your treating psychiatrist?---
A:(Direct.) That’s correct.
Q:Have you ever told her that you were hearing voices before the transport accident?---
A:Probably I told her, yeah.
Q:You told her?---
A:No, I didn’t told her I hear voices before the accident.
Q:Have you ever told her - you understand the word ‘hallucination’?---
A:Yeah, I told her after the accident.
Q:No, what I want to know, have you ever told Dr Kwong that you have or had hallucinations before the transport accident?---
A:No, I didn’t tell nothing.”[26]
[26]T98, L12-23
The evidence of Ms Sabrije Gashi
22 The plaintiff relies on the affidavit of Sabrije Gashi sworn on 25 September 2013.[27] She describes herself as having been born in February 1966 and being married to the plaintiff for about thirty years.
[27]Exhibit 2 at pages 13-16 PCB
23 In particular, she deposes that prior to the collision, she and the plaintiff had a “normal, happy relationship” involving going out as a couple, or as a family without children, or hosting parties at their home. Furthermore, prior to the transport accident, the plaintiff would attend a local club almost daily, whereas she would go out with her friends perhaps to the shops or for a coffee, all being part of their normal life.
24 After the transport accident, for the first few months, she recalls the plaintiff complaining about being in significant pain, recovering from his fractured sternum. At night, he would sleep with four or five pillows so that he was upright, and she remembers his breathing was quite shallow and laborious. In particular, she gives the following evidence:
“Isen started becoming angry and changing his mood very soon after the collision. I initially thought that this was because he was in so much pain. The anger and changed mood continued, however, for a long time. I eventually put one and one together that perhaps there was more going on than just pain.
Isen has changed dramatically since the collision. He is now very impatient and has angry outbursts very often. I spend most of my days cleaning our home. Isen will become angry with me – he tells me that he cannot stand watching me move from room to room. Other times, he accuses me of talking about him with our children.
I feel like he puts a lot more pressure on me since the collision. For example, now if I go out with my friends he questions me when I get home. He appears stressed and anxious when I get home. He was not like this prior to the collision.
Isen is a lot jumpier than before the collision. As recently as a few weeks ago, we were in bed and he started asking me if I could hear someone knocking on the door or window. There was no noise.
Isen stays home almost every day now. He just spends hours watching television. Prior to the collision he went out quite often – almost daily. Following the collision, he would go out less and less. In the last few months, he has hardly gone out at all.
We no longer host big parties at our home. Isen tells me he doesn’t want to see people. Prior to the collision, this was not an issue. We would go to social functions or have people at our home quite often.
… .”[28]
[28]Affidavit of Sabrije Gashi at pages 14-15 PCB
The evidence of Dr Kwong
25 Dr Stella Kwong, the treating psychiatrist of the plaintiff, was called on behalf of the plaintiff and was cross-examined. She gave evidence that she was a consultant psychiatrist who had practised in that role for some thirty-five years.
26 The plaintiff was referred to her by the general practitioner, Dr Rowais, on 3 August 2007, and she initially consulted with the plaintiff on 3 October 2007.
27 Dr Kwong confirmed that she prepared reports dated 27 October 2008, 20 November 2008, 17 October 2012, 27 June 2013 and 22 September 2014[29] and that she had recently read such reports. She gave evidence that the opinions and the histories provided in such reports are true and correct at the time they were given, and she continues to hold such opinions.
[29]Exhibit 1 at pages 25-46 PCB
28 In her report dated 27 October 2008, Dr Kwong sets out details of the personal history, education, job and marriage of the plaintiff. She obtained a history that there was no known significant medical or psychiatric illness in the family.
29 Dr Kwong also obtained a history in relation to the transport accident and in particular, obtained the following history:
· The plaintiff’s chest hit the steering wheel and was crushed and he “couldn’t breathe”. In particular, he asserted that “for a little while I was not there at all” and when he regained full consciousness, he found himself holding his chest.
· When taken to the Western Hospital, he was discharged home after examination and investigation with a diagnosis of a fracture of the sternum.
· For two weeks after the transport accident, he could not move, cough or sleep because of pain, and he was informed that the fracture of the sternum had to heal by itself. During this time, he took Panadeine Forte to ease the pain.
· Although the fracture had healed, he has “never been what I used to be” and has pain when he lifts his arms or lifts and pulls. He has to sleep on his side rather than lying flat on his chest.
· His neck was also affected and now it is “chronically painful with headaches”. When he gets a headache, “I get more angrier”.
· The plaintiff described himself as emotionally badly affected by the transport accident. When he hit the car, he felt “very very bad what happened. I thought I was finished. I was gone.”
· After about one or two months, he became “nervous, upset, depressed, mood up and down, shouted at the kids. Sometimes I hit my kids. Bang bang bang.” He described at that time, in the last few months, he has become more irritable and angry and upset with his children to such an extent that he “hit them”.
· The plaintiff was adamant that before the transport accident, he was suffering from chronic low-back pain but “mentally I was very well”. In particular, he did not have a bad temper and could talk to people, and now he has an anger problem and cannot talk to people.
· The plaintiff complained of losing pleasurable effects and feeling depressed and inpatient. He described how “bad words just came out of my mouth” and somebody talking can upset him. He described how he was upset with his wife “for nothing” and that he was starting to hate his wife a lot.
· He described how “sleeping is a problem” and it is “very hard to sleep at night. I wake up and watch T.V. I have nightmares. I had dreams with snakes, dead people. I dreamed about my father who died.”
· The plaintiff noted that he was fearful for his family and wife and that he “might be I’ll lose them or they lose me”.
· He has heightened anxiety when driving and prefers his wife driving, although he is a bad passenger.
· He watches television and he used to go to clubs playing cards with friends two to three days a week from 10.00am to 10.00pm. At the club, he had exchanged angry words with other players and nearly came close to a fight with another person. In particular, he told Dr Kwong at some time prior to the writing of the report, that “in the last twelve months I have stopped visiting the club”.
· He has lost appetite but has not lost weight and he feels like crying sometimes because of sadness and boredom.
· He goes to auctions “buying old stuffs. If I see something I like.”
· He hears women’s voices screaming at him in the last year and believes someone is going to kill him. On one occasion, he had a woman saying she loved him and “I nearly died when she jumped on me”.
30 During the mental state examination, Dr Kwong obtained a history that the plaintiff admitted to having suicidal thoughts and had made tentative steps twice. He admitted to hearing voices, which scared him.
31 At the time of the report, he was taking two to three Panadeine Forte a day, 25 milligrams of Seroquel, 10 milligrams of Temazepam and 60 milligrams of Cymbalta.
32 Dr Kwong made an initial diagnosis of Post-Traumatic Stress Disorder.
33 With the treatment, his mood had stabilised and his temper outbursts were less frequent and his pseudo hallucinations less apparent.
34 Dr Kwong records that the plaintiff stated that he did not have any psychiatric or psychological issues prior to the transport accident and was living comfortably on his Centrelink payments with a stable family life.
35 In her report dated 20 November 2008, Dr Kwong set out details of a psychiatric impairment assessment pursuant to the fourth edition of the AMA Guides.
36 In her report dated 17 October 2012, Dr Kwong sets out the various dates of consultations from her initial consultation on 3 October 2007 up until the date of the report. She confirms that her diagnosis continued to be Post-Traumatic Stress Disorder. However, Dr Kwong does note that over the period of time that she had been treating the plaintiff, she discovered that he had been suffering from a chronic low-grade schizophrenic illness which exhibits in his previous loss of motivation for employment and experiences of auditory hallucination. She expressed the opinion that this “psychosis” has been aggravated by the Post-Traumatic Stress Disorder making his anger outbursts more explosive and his auditory hallucination more vivid and disturbing.
37 Dr Kwong expresses the opinion that the Post-Traumatic Stress Disorder was caused by the transport accident and at that time, his condition remained chronic, severe and intractable. She noted that the “comforting thought” is that the plaintiff has not done any self-harm to others and his family remains intact and his children are now grown up. Dr Kwong notes that the plaintiff continues to target his wife for his anger outbursts and his wife is starting to retaliate and threatened to divorce him.
38 In relation to the schizophrenic condition, Dr Kwong expresses a belief that the plaintiff had been –
“… mildly psychotic for many years and has been having auditory hallucination and paranoia for several years prior to the transport accident. However, he never feels the need to seek treatment for his condition previously as he remains unemployed and his family is supportive.”
39 Dr Kwong was of the opinion that the Post-Traumatic Stress Disorder and chronic pain have aggravated his conditions and led to a severe deterioration in his personality and an occasional acute psychosis. She considered that the plaintiff needed to be under treatment for his conditions for many years to come. She considered the prognosis for his two psychiatric conditions were
“very poor”. Furthermore, she was of the opinion that the plaintiff had no current capacity for work and his lack of capacity for work is “permanent and indefinite”.
40 In her report dated 27 June 2013, Dr Kwong sets out details of conversations she had with the wife of the plaintiff on 29 April 2013 wherein she described that her husband had “changed” and prior to the transport accident, he was “alright” and “not like “this”. She also informed that Dr Kwong that prior to the transport accident, the plaintiff would take care of his own personal hygiene and participate in doing some light household chores. Since the transport accident, although he continues to take care of his own personal hygiene, he does not brush his teeth and although his wife lays down clothing for him every day, he only changes at his pleasure. The wife of the plaintiff also told Dr Kwong that “if you talk to him, he takes it the wrong way”.
41 In that report, Dr Kwong noted that the plaintiff’s mental state remained mildly psychotic with auditory hallucination, paranoia, idea of reference and is prone to angry outbursts when confronted. In particular, Dr Kwong stated:
“Mr. Gashi is suffering from a chronic paranoid schizophrenia which is aggravated by his involvement in a transport accident on 20th September 2006.
I previously made a diagnosis of posttraumatic stress disorder (PTSD) as a result of his transport accident with the classic symptoms. However, over the years, this condition has improved. He is now able to drive with some occasional panic attacks and anxiety. He constantly worries about being wrong and gets into an accident again.
He still has intrusive memory of the transport accident. ‘When I hit her (the driver of the other car) and I’ll not feel good at all afterwards’.
He still has occasional nightmares of the accident. This has been causing him sleepless nights.
As a result of his PTSD, his personality has changed from a placid one to an angry one.
‘I’m not the person I used to be’.
The PTSD also aggravated his chronic low grade psychosis when he was able to get on with his family. He is now overtly psychotic with symptoms of auditory hallucination and paranoia and needs psychotropic medication.”
42 In her final report dated 22 September 2014, Dr Kwong again sets out the dates of various consultations up to the date of that report, and confirms that her diagnoses are:
“(1) Chronic Paranoid Schizophrenia and
(2) Posttraumatic Stress Disorder.”
43 Dr Kwong confirmed that she was reviewing the plaintiff every six to eight weeks in order to review his medication and to provide counselling and support to the plaintiff.
44 Dr Kwong also confirmed that the plaintiff has a “nil” capacity for work and that in the future, any capacity to work “will be deteriorating”.
45 Under cross-examination, Dr Kwong gave the following salient evidence:
· She confirmed that the referring general practitioner, Dr Rowais, did not mention any prior psychiatric illness or treatment, and further, suggested that the plaintiff was experiencing symptoms of Post-Traumatic Stress Disorder.
· She confirmed that the plaintiff did not report any pre-existing psychiatric condition, that she initially did detect some “psychotic symptoms” which she thought was due to severe Post-Traumatic Stress Disorder and that the psychosis was “temporary” – that is, pseudo hallucinations. When asked whether they pre-dated the transport accident, Dr Kwong stated:
“Iwouldn’t have an idea, but then I have no corroborative evidence, until later on I talked to the wife.”[30]
[30]T25, L16-18
She stated that she does not record every psychiatric symptom at any consultation but only if there has been a change for the better or worse.
· In particular, the following evidence was given:
Q:“If Your Honour accepts in the clinical notes that on 30 June 2006 he reported to his - 86 I beg your pardon, 30 June [1986] …, that he attended his GP at the time, was very irritable and hits his kids?---
A:That was when? Can you repeat the?
Q:30 June 86?---
A:86.
Q:1986, yes.
A:86, yes.
Q:In 86 he hit his kids?---
A:Mm-hmm.
Q:Is that something that would be relevant to your enquiry about his condition?---
A:After knowing him quite a while and getting more information I did form opinion that he has been chronically psychotic for a long period of time prior to the accident.
Q:That’s what I said to you before and you said you didn’t think that was so?---
A:At that stage, in 2008.
Q:Okay, only later on you formed the view that he was chronically psychotic prior to the accident?---
A:Yes.”[31]
[31]T41, L7-20
· She considered that any hitting of the kids back in 1986 may well only reflect part of what was more a cultural aspect of parenting children.
· She considered that the “anger” that came from the Post-Traumatic Stress Disorder fuelled his behaviour.
· Later, the following evidence was given:
HIS HONOUR:
Q:“Just so I understand also, is it your view now that you express to this court that the man, the plaintiff suffers from a paranoid psychosis? Is that correct?---
A:Yes.
Q:And the paranoid psychosis, is it your view that it predated the transport accident?---
A:Make it more symptomatic, yes, predated the accident.
Q:Yes, thank you.”
MR MIDDLETON:
Q:“Just to be clear about what His Honour’s asked you, it’s not your view that he suffers from a major depressive disorder or illness, is it?---
A:No.
Q:It’s not your view that he suffers from some chronic pain disorder, is it?---
A:No.
Q:Your view is that he suffers a schizophrenic psychotic condition which predated the motor vehicle accident?---
A:Yes.
Q:And which you say was aggravated by the post-traumatic stress disorder of the accident?---
A:Yes.
Q:That’s your view in a nutshell, isn’t it?---
A:Yes.”[32]
[32]T43, L18 – T44, L5
· Dr Kwong confirmed that she did not know that the plaintiff had been prescribed Tryptanol at times prior to the transport accident. She described such drug as a “mild sedative” but also noted that such drug, in earlier years, was prescribed for people with pain, with chronic pain. In particular, the following evidence was given:
MR MIDDLETON:
Q: “Beg your pardon, I apologise, I should be putting from about July 85, 86, 87, 88, into 1989 he was prescribed Tryptanol regularly for things like irritability, being upset. Did you know that, no?---
A: No.
Q: Later on he was prescribed, after that in 97, Aropax. What’s Aropax, doctor?---
A: Another antidepressant.
Q: What do you use it for?---
A: Antidepressant.
Q: Did it have a pain - - -?---
A: No.
Q: - - - aspect to it like Tryptanol?---
A: No.”
HIS HONOUR:
Q:“Is Aropax of the same class of drug as Tryptanol or what is Aropax?---
A: Two different class.
Q: Tryptanol is called Tricyclics, an older type of antidepressant which has cardio toxic side-effects.
A: But a lot of GPs prescribed it for pain and for sedation.”[33]
[33]T45, L23 – T46, L7
· When taken to exhibit F, being the letter from Dr Loizou dated 14 September 1988, Dr Kwong accepted that the reference to “anti-depressant medication” would be Tryptanol.[34]
[34]T46, L18-23
· When taken to the entry of Dr Rowais on 5 September 2006 where it is recorded that the plaintiff was describing being depressed and having poor sleep, the following evidence was given:
Q: “I put to you that on the very last attendance before the motor accident, namely 5 September 2006, his new general practitioner, Dr Rowais at page 1 of the clinical records, records him as being depressed and having poor sleep. Did you know that, some 15 days before the accident?---
A: I don’t know that.
Q: You didn’t know that?---
A: No.
Q: But that’s certainly at odds with what he tells you at the bottom of page 3 of your report. Is that right?---
A: Yes.”[35]
[35]T47, L1-9
· Dr Kwong stated the nightmares which the plaintiff reported did not relate to any transport accident but rather about snakes and dead people and how his father died. However, the following evidence was given:
HIS HONOUR:
Q: “Sorry, I didn’t understand how that ended up. The dreams you have been talking about or the nightmares and it goes on saying, ‘Dreams of snakes, dead people. I dreamed about my father who died.’ Do you say that those dreams or nightmares are related in some way to the transport accident or to the psychosis or to what?---
A: The sense of danger. Is not necessarily a particular car accident but people with accident, traumatic accident, do have nightmares of all sorts, of different dangers, not necessarily about the car, but dangers.”
MR MIDDLETON:
Q: “The position is, in respect of that question by His Honour, that it’s possibly unrelated to the car accident?---
A: Could be. Yes, you’re right.”[36]
[36]T48, L23 – T49, L5
· When queried about her opinion that the plaintiff’s anxiety is heightened when driving, Dr Kwong stated that she did not look into how far the plaintiff can drive or how regularly he drives. In particular, the following evidence was given:
Q:“Isn’t that important to determine the extent to which he is able to drive? Was he driving for 10 minutes, did he drive for an hour? Isn’t that important to have some assessment of the degree of symptomatology?---
A:I was never sort of asked to assess how he’s functioning, I just make a diagnosis and treat him the way - and then eventually I more or less concentrate on treating his schizophrenic illness. He kind of - the PTSD’s kind of subsided a lot, but his schizophrenia has subsided a lot too; stabilised.
Q:Both conditions for which you are treating him have subsided quite a lot. Significantly so?---
A:Yes.
Q:To the point where you might not have to treat him soon?---
A:No.
Q:No?---
A:This kind of illness is, probably lasts for long time, lasts for his lifetime.
Q:Lasts for his lifetime?---
A:Yes.
Q:Can I put this to you: Did he present to you that he preferred to drive himself and that he felt more in control?---
A:Yes.
Q:Where do you record that?---
A:I didn’t record it but I know, he eventually really hated to be a passenger. He’s more worried that he’s not in control and then more accident (sic) will happen.”[37]
[37]T50, L14 – T51, L3
· When again queried by the Court about his conditions, the following evidence was given:
Q:“As I understand what you’ve just told Mr Middleton, both those conditions have improved to some extent - - -?---
A:Stabilised.
Q:- - - by your treatment treatment?---
A:Yes.
Q:The psychosis though, what relationship, if any, does that have to the transport accident?---
A:I would say, without the transport accident it remained sub-clinical, in the sense he might feel irritable, depressed, without knowing why and then he’d go to the doctor and have different medication different, just symptomatically treated him. There’s a lot of young people with sub-clinical schizophrenia, who go to street drug[s] for self-medication because it makes them feel better, but the illness was not treated.
Q:I just want to understand that I think. Are you saying, and this is what I must admit I’m curious about from what I’ve heard earlier from different cases, the actual schizophrenic being a psychotic condition is a condition which - can extraneous forces cause that condition or is it just something you're born with effectively?---
A:You’re born with it but the extraneous circumstances will precipitate it.
Q:But if this is pre-existing, what do you say the transport accident’s done? It hasn’t caused it obviously. What do you say, if anything, it’s done?---
A:Aggravated it, so brought a sub-clinical condition into a clinical condition, sort of it need treatment. And, once it started – it’s just like, you can have a schizophrenia and we treat it and it become[s] good again, so it can remain good forever. But if you have a traumatic event, it flare[s]-up and then it can remain there forever not responding to treatment.
Q:Let’s just take that aspect. The schizophrenic condition, accepting what you’ve just said in your answer there, you’ve treated, what, the flare-up and that’s improved, has it?---
A:Yes.
Q:He obviously will never lose his schizophrenic condition, will he?---
A:No.
Q:So that’s improved and the post-traumatic stress disorder has improved also?---
A:Yes.
Q:With the post-traumatic stress disorder improving, does that in turn have less effect on flaring up the - - -?---
A:It will help the remission.”
MRMIDDLETON:
Q:“Is it then, an extension of what His Honour asked, the situation that the schizophrenia, the psychotic condition, has gone back to where it was prior to the accident?---
A:No.”[38]
[38]T51, L18 – T53, L2
· Dr Kwong confirmed that the plaintiff’s cultural background would not have involved him in any domestic chores even prior to the transport accident.
· When queried as to how soon after the transport accident would you expect the pre-existing psychosis to manifest itself, Dr Kwong stated “almost immediately”.
· When it was suggested to Dr Kwong that it was not until 2 August 2007 the doctor first records any symptoms in relation to Post-Traumatic Stress Disorder, Dr Kwong acknowledged that there was a gap which was “not that significant”.
· When taken to the records of Dr Loizou on 2 August 2007 wherein it is recorded “poor sleep. Early morning waking. Depressed mood. Normal self-esteem. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse”, Dr Kwong accepted that, according to Dr Loizou, there were no indications of psychosis there at that time.
· When queried that the hallucinations and or delusions as described by the plaintiff seemed to be somewhat “divorced” from the transport accident, Dr Kwong stated it is not so much the hallucination itself but such hallucinations are “broadly” more severe and loud and intrusive as a result of the transport accident.
· Dr Kwong accepted that Post-Traumatic Stress Disorder and Schizophrenia are completely different mental conditions. Dr Kwong accepted that prior to the transport accident, the plaintiff had the psychosis in symptomatic form, manifesting itself in anger outbursts, auditory hallucinations, and that they have got worse since then. In particular, the following evidence was given:
HIS HONOUR:
Q: “I thought earlier you said there were no particular symptoms, but what you’re saying is that the psychosis, which I think you accept was in existence prior to the transport accident, that psychosis prior to the transport accident manifested itself at least in these ways: Motivation for employment and experiences of auditory hallucination and anger outbursts, but you say that’s all been made worse by the post-traumatic stress disorder?---
A: Yes, that’s my opinion.”
MR MIDDLETON:
Q: “You did that without having any detail about what his situation was prior to the accident?---
A: The detail is how I go back on what he’s told me, which he never told his - or he told in a different form to a GP, did not make the GPs that have been looking after him for years to think he's schizophrenia, so this is how non-schizophrenic he was before the accident. He had all these symptoms and yet the GP never make a diagnosis of psychosis.”
HIS HONOUR:
Q: “Just so I understand what you’re saying to me again, I’m sorry it may or may not ultimately be important, you’re saying that once you started to explore the evidence of the psychosis, you, through your consultations with him, got out of him through your consultations what were in fact experiences of auditory hallucination prior to the transport accident?---
A: Yes.
Q: Also, that he had anger outbursts prior to the transport accident?---
A: Yes.
Q: And that you also group together with this he would have had a loss of motivation to look for employment after going on the Newstart prior to the transport accident?---
A: Yes.”[39]
[39]T69, L3 – T70, L3
· Also, later in her evidence, Dr Kwong was asked various issues about the status of the plaintiff’s psychosis. In particular, the following evidence was given:
HIS HONOUR:
Q: I just want to be clear, though, I thought, maybe wrongly, but I thought at one stage you were saying the psychosis which he has which commenced prior to the transport accident, it was aggravated or flared up by the post-traumatic stress disorder?---
A: Yes.
Q: You’ve also given evidence that the post-traumatic stress disorder hopefully and understandably perhaps has been moderated by treatment since 2008?---
A: Mm-hmm.
Q: However, in 2012, four years into treatment, in circumstances where you're saying that post-traumatic stress disorder being the aggravating factor has been diminishing, although maybe still in existence to some part, in early 2012 his psychosis deteriorates?---
A: Mm-hmm.
Q: Doesn’t that just suggest the underlying condition?---
A: The underlying condition fluctuates itself, that’s schizophrenia. There’s no longer direct - as I said it aggravated it but there’s a recovery - if you keep on having pain, keep on having scary experience it might make it worse, but he learned to live with that but his schizophrenic fluctuate by itself. It’s become an independent illness.
Q: Okay. So in 2012 what he’s experiencing then sadly is these symptoms of psychosis, but you say that's a reflection of an independent illness, is it?---
A: Yes.”
MR MIDDLETON:
Q: “It would be there irrespective of the transport accident?---
A: In the future. It’s a completely different illness.”[40]
[40]T71, L25 – T72, L18
· Dr Kwong confirmed that she did not have the notes of any general practitioner or treating doctor of the plaintiff leading up to the transport accident or indeed, any notes of any general practitioner since the occurrence of the transport accident.
· Dr Kwong confirmed that she saw the plaintiff without the assistance of an interpreter and spoke in English.
· Dr Kwong described the plaintiff as a bit depressed but she would not describe it as Major Depression.
46 By way of re-examination, the following salient evidence was given:
· When asked directly what effect the transport accident had as a cause of the plaintiff’s current condition insofar as the schizophrenic condition is concerned, Dr Kwong stated:
A: First, I thought his hallucination’s caused by the PTSD, but after investigation I think it’s independent. He basically had a low grade schitzophrenic (sic) illness or, as Dr Jager say, a paranoid personality. But then the PTSD really shatter his world, his reality, his belief in himself in the chronic pain and it broke down into schizophrenic illness. And that also in turn aggravate his anger and PTSD symptoms, so both together are really bad, but over the years with medication, with counselling, with support, he’s improving. But PTSD might be resolved in some time in the future but his schizophrenia will go on if he hasn’t responded for so long. So in the past he wasn’t very compliant, but now he's very compliant, so he's much better.”
HIS HONOUR:
Q: “Again, I don’t want to keep on going on about this, but to the extent that he has any symptoms related to his – let’s call it his psychotic condition, do you relate any of those symptoms now to the transport accident or are they a result of the underlying psychotic condition which you accept pre-existed the transport accident?---
A: I will say, without the transport accident it may not become so symptomatic, but after it’s developed, then the PTSD - if his pain goes away, his PTSD subsided he may still be schizophrenic, that’s not going to stop. It depends on how bad. As I said, in future if there’s more accident and more trauma, he gets worse again.”[41]
· Dr Kwong confirmed that she currently prescribed 10 milligrams of Zyprexa and 60 milligrams of Cymbalta for depression, and she considered it will be necessary to prescribe such medication into the foreseeable future.
[41]T80, L4-31
The evidence of Dr Rowais
47 The plaintiff relies on the medical reports of the present treating general practitioner, Dr D G Rowais, dated 10 November 2008 and 3 October 2012.[42] Furthermore, the clinical notes of Dr Rowais consisting of 34 pages were tendered.[43]
[42]See exhibit 3 at pages 17-24 PCB
[43]See exhibit C
48 In his reports, Dr Rowais notes that the plaintiff first consulted him after the transport accident on 29 November 2006, at which time he complained of severe chest pain, difficulty in breathing and unable to sleep at night. Dr Rowais, on perusing the Discharge Summary from the Western General Hospital, noted that the plaintiff had sustained a central sternal fracture. Examination by Dr Rowais demonstrated “a very stressed man”, holding his chest, breathing slowly and carefully.
49 Examination revealed tenderness over the central chest wall with a palpable depressed area at the central area of the sternum, and lung function was normal.
50 Dr Rowais diagnosed a depressed sternal fracture and mild stress and anxiety, and prescribed analgesia, rest, physiotherapy and simple exercise.
51 On 4 June 2007, the plaintiff experienced low-back pain and sciatic radiation, causing Dr Rowais to arrange for a CT scan to be done of the lumbar spine. Such scan, undertaken on 7 September 2006, concluded that there was vertebral disease at L5-S1 where there was a Grade 1 spondylolisthesis with L5 Pars interarticularis defect.
52 Dr Rowais notes that on 3 August 2007, the plaintiff demonstrated evidence of early Post-Traumatic Stress Disorder and Depression as he was experiencing poor sleep, helplessness, tiredness, memory problems, concentration problems, multiple somatisation, low moods, loss of self-esteem and negative insight. At that stage, the plaintiff was referred to Dr Kwong for assessment.
53 Dr Rowais also referred the plaintiff to the orthopaedic surgeon, Associate Professor M Goldwasser, to evaluate the ongoing complaint of chest pain and back pain, and Professor Goldwasser recommended a conservative approach.
54 In his first report, Dr Rowais said that as a result of a transport accident, the plaintiff suffered a fractured sternum, aggravating his earlier disc degeneration and spondylolisthesis. Furthermore, his condition was “complicated”, with Post-Traumatic Stress Disorder and extensive somatisation. He considered that the plaintiff’s condition had stabilised and further management was to be conservative, with pain management and psychiatric support.
55 In his later report, Dr Rowais notes that over the last six years, the plaintiff had consulted him regularly (almost once a month) and that his presentation is almost similar, with symptoms of chest pain, lower mood, loss of motivation, loss of self-esteem, tiredness, memory and concentration problems, and symptoms of recurrent lower back pain caused by disc degeneration aggravated by the transport accident. He has been regularly prescribed analgesia, seemingly Panadeine Forte. Dr Rowais considered that the plaintiff’s condition deteriorated over time and has progressed into “chronic pain” with severe Post-Traumatic Stress Disorder. He considered him unfit for any type of work.
56 A letter from Dr Rowais to Dr Kwong dated 3 August 2007 was tendered.[44] Such letter constitutes the referral to Dr Kwong wherein Dr Rowais suggests that the plaintiff “recently” started to experience symptoms suggestive of Post-Traumatic Stress Disorder. I refer to the clinical notes of Dr Rowais which were tendered.[45] I also refer to exhibit H, which sets out the details of various attendances on Dr Rowais. In particular, I refer to the following:
[44]See exhibit E
[45]See exhibit C
(a) On 5 September 2006 (some fifteen days prior to the transport accident), the plaintiff consulted Dr Rowais for the first time, complaining of back pain, presumably extending into his leg, and “depression”. At that time, he was noted to have back pain and sciatica. In particular, it was recorded by the doctor:
“Poor sleep.No early morning wakening. Normal mood. Normal self-esteem. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse.”
There was also a general physical examination including a normal respiratory examination;
(b) On 7 September 2006, there is a report that a CT scan of the lumbar spine had been undertaken;
(c) On 29 September 2006, the plaintiff attended Dr Rowais, which is the first attendance after the transport accident. It is recorded:
“Fractured sternum. Chest pain. Reason for visit: chest pain – atypical, iron deficiency. Chest pain. Back pain. Fractured sternum.
Investigation. Assurance. Prescribed Zoton.”
(d) On 30 October 2006, the plaintiff attended Dr Rowais in relation to his fractured sternum;
(e) On 20 November 2006, the plaintiff attended Dr Rowais in relation to his fractured sternum;
(f) On 13 December 2006, the plaintiff attended Dr Rowais for a certificate for social security;
(g) On 5 January 2007, the plaintiff attended Dr Rowais but there are no notes of such consultation;
(h) On 20 March 2007, the plaintiff attended Dr Rowais and the reason for the visit was “chest pain”. He was prescribed to have some stress testing and also prescribed Ducene and Panadeine Forte;
(i) On 20 April 2007, the plaintiff attended Dr Rowais, where it was noted that the chest pain is “atypical”, and that the stress testing was negative. The reason for the visit was said to be “chest pain” and “fractured sternum”;
(j) On 4 June 2007, the plaintiff attended Dr Rowais complaining of chest pain and unable to lift or bend because of longstanding back pain which was said to be aggravated by the transport accident;
(k) On 2 August 2007, the plaintiff attended Dr Rowais and the reason for such visit was said to be “URTI – viral. Fractured sternum. Depression. PTSD.”
At that time, a history was given of poor sleep, early morning wakening, Depressed Mood, normal self-esteem, no irrational fears, no panic attacks, no compulsive behaviours, no delusions, no hallucinations, no suicidal thoughts and no substance abuse. At that time, Panadeine Forte was prescribed. Respiratory examination was normal with no respiratory distress;
(l) On 3 August 2007, Dr Rowais referred the plaintiff to the psychiatrist, Dr Kwong
In particular, I refer to the consultations with Dr Rowais on 15 August 2008 and 18 November 2008, at which time the following were respectively recorded:
(i) 15 August 2008:
“Psch Normal sleep. Early morning wakening. Normal self-esteem, no irrational fears. Panic attacks.[46] No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse. Depressed Mood. Prescribed Ditropan. Panadeine Forte.”
[46]The note reads “panic attacks” but given the context of the note and the other information surrounding it, I consider that most probably was “no” panic attack
At that time, there was also recorded:
“No back pain, no neck pain and no sciatica.”
(ii) 18 November 2008:
“Attend GP, normal sleep. No early morning wakening. Normal mood. Normal self-esteem. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No suicidal thoughts. No substance abuse. Prescribed Panadeine Forte.”
Respiratory examination was normal, with no respiratory distress.
57 There was also handwritten notes, which seemingly run from the date of the transport accident to recent times. Many of these notes are unreadable.
The evidence of Professor Goldwasser
58 The orthopaedic surgeon, Associate Professor Miron Goldwasser, examined the plaintiff on referral from Dr Rowais on 30 October 2007.[47] At that time, he was complaining of anterior chest discomfort which followed on from the transport accident. Examination revealed the plaintiff not to be in distress, with mild discomfort on compressing the mid sternum. Professor Goldwasser considered the history and examination findings were suggestive of persistent pain following a fractured sternum.
[47]See report dated 5 December 2008, exhibit 6 at page 140 PCB
59 Professor Goldwasser arranged for x-rays and a CT scan of the sternum to be undertaken on 2 November 2007. On review on 14 November 2007, Professor Goldwasser explained to the plaintiff that he had suffered a fracture of the sternum and although there had been some union, there was still a gap noted, which he did not consider to be unsafe. Professor Goldwasser thought ongoing residual symptoms and in particular, discomfort in the front of the chest, was not an unusual symptom and could be quite prolonged.
The evidence of Dr Loizou
60 The defendant also tendered the clinical notes of the initial treating general practitioner, Dr Loizou, who practised at the Moonee Ponds Medical Centre.[48]
[48]See exhibit D
61 A letter from Dr Loizou to the solicitors, Messrs Slater & Gordon dated 14 September 1988, was also tendered.[49] In that letter, reference is made to ongoing back pain being suffered by the plaintiff and that there was a recommendation that, from an orthopaedic surgeon at that time, that he undergo a spinal fusion. Dr Loizou notes that at that time in 1988, treatment consisted of rest, use of a belt, analgesic and anti-depressant medication.
[49]See exhibit F
62 The clinical notes of Dr Loizou were tendered[50] and again, I refer to exhibit H which sets out various attendances which are agreed by the parties. I refer to the following consultations:
[50]See exhibit D
(a) On 16 April 1985, the plaintiff attended Dr Loizou complaining of tenderness in the lumbar spine and apparent weakness in his foot, and it was suggested that there may be some evidence of hysterical behaviour;
(b) The plaintiff again attended Dr Loizou on 24 April 1985 and it was considered that there was a strong “functional component to his symptoms” and Tryptanol was prescribed;
(c) On 2 May 1985, Dr Loizou notes that he considers that the plaintiff was suffering from hysteria rather than anything else;
(d) The plaintiff attended Dr Loizou on 4 May 1985. The plaintiff was prescribed Tryptanol by Dr Loizou on 31 May 1985, 1 July 1985, 2 September 1985, 31 October 1985, 17 December 1985 and 30 June 1986, at which time he informed his general practitioner that he feels very irritable and “hits his kids”;
(e) The plaintiff was also prescribed Tryptanol on 29 July 1986, 30 October 1986, 5 January 1987, 24 April 1987, 3 August 1987, 3 October 1987, 1 December 1987, 2 February 1988, 29 March 1988, 26 April 1988 and 6 August 1988 and it is shortly following that consultation that the letter from Dr Loizou to Slater & Gordon dated 14 September 1988 is sent, wherein there is reference to “anti-depressant medication”;
(f) The plaintiff was also prescribed Tryptanol on 21 October 1988 and 16 January 1989;
(g) On 16 May 1989, the general practitioner notes that the plaintiff’s case – presumably the low-back injury suffered at Loy Yang – had settled. He was again prescribed Tryptanol on 29 July 1991, and on 24 March 1997, the general practitioner notes the plaintiff was ruminating and admitted to crying, and had been crying for approximately one year. The drug, Aropax, was prescribed by Dr Loizou.
63 Dr Loizou also recorded that the plaintiff complained that his “fatigue” was worse in the afternoon.
64 The notes would suggest that the plaintiff ceased to attend Dr Loizou in April 2004, with his first attendance on Dr Rowais seemingly on 5 September 2006.
The evidence of Dr D Weissman
65 The plaintiff relies on the evidence of the consultant psychiatrist, Dr D Weissman, who medico-legally examined the plaintiff on 26 April 2012[51] and on 3 July 2014.[52]
[51]See report of same date, exhibit 5 at page 88 PCB
[52]See report of same date, exhibit 5 at page 111 PCB
66 When initially examined, Dr Weissman obtained a history from the plaintiff and in particular, I note that the plaintiff asserted:
· The transport accident was “a bit frightening”, and that what frightened him the most was that he “almost killed the lady in the accident”.
· He sustained injury to his anterior chest, which was a fractured sternum, and he could not breathe. He also suffered aggravation of a lower back injury.
· The pain comes and goes in his chest.
· He suffers from “depression” and feels exhausted, lonely and upset.
· Before the accident, he only took Panadol for his low-back pain, and since the accident, he now takes two to five tablets of Panadeine Forte per day for his pain. He takes Cymbalta for his depression.
· He feels short of breath “all the time”, and when queried as to what he believed to be the cause of such shortness of breath, he replied “I think it could be depression”. Furthermore, he feels “anxious and panicky a lot of the time”.
· The plaintiff believes that these symptoms were caused by the transport accident because he almost killed the lady driving the other car.
· In relation to leisure activities and hobbies, he does “nothing at all. Sometimes I play cards and go for a walk.” Prior to the transport accident, the plaintiff asserted that “I tried to help anybody. Sometimes I went for a jog. I walked a lot. I felt good.”
· He last worked in 1984 and 1985.
· He socialises to a degree, although he does not get along with people anymore and he feels “tense and irritable”.
· He showers and dresses independently but does not involve himself in cooking or cleaning at the home (or perform any shopping).
· When asked about driving a car, he replied “It’s alright, I drive here, I drive there”.
· He has bad dreams about the accident, occurring once or twice a week, and his body is “jumpy” when he has a bad dream.
· He describes his emotional state as “emotional, irritable, tense, anxious and depressed”.
· He has trouble sleeping at night due to pain and also due to his “head” which he meant to be his emotional state.
· The plaintiff considered his interests, energy, motivation, self-esteem and confidence were poor. He has thought about suicide a few times but no current suicidal ideation. He sometimes hears voices which are outside his head and “just screams”, and such voices came on after the transport accident, although he cannot remember exactly when. He experiences such voices “not very often, but quite a bit, once a month”.
· He feels paranoid and believes people talk about him and look at him. He considers such condition came on after the transport accident but he cannot remember when.
· There is no past psychiatric history and no family history of psychiatric illness.
67 After making a mental state examination, and perusing various enclosures, including earlier reports relating to the back and respiratory condition of the plaintiff, together with impairment assessments from Dr Kwong and Dr Nathan Serry, Dr Weissman expressed the following opinions:
· The plaintiff appeared to be quite pain focussed and pain preoccupied, and such presentation was in excess or disproportionate to the true degree of organic pathology.
· On the balance of probabilities, he considered the plaintiff had a Chronic Pain Disorder prior to the transport accident following on from his low-back injury. Such Chronic Pain Disorder had been aggravated by the transport accident.
· In terms of the transport accident, the plaintiff was suffering from an aggravation of pre-existing Chronic Pain Disorder associated with psychological factors and a general medical condition.
· The plaintiff was also suffering from at least a moderate amount of secondary reactive or consequential depression, anxiety, frustration, irritability and agitation from the transport accident. Dr Weissman considered that the “bulk” of the reactive or consequential depression, anxiety, frustration, irritability and agitation resulted from the “physical pain, injuries and disabilities due to the transport accident”.
· As a result of his at least moderate mixed depressive and anxiety syndrome, there has been a moderately severe decline and deterioration (psychologically-based, as well as physically-based) in his level of function, quality of life, social, leisure and recreational activities, as well as his relationships with family.
· In addition, the plaintiff has developed psychotic symptoms and features – including auditory hallucinations and paranoid/persecutory ideation – which seems to be accident related because of the temporal relationship between the onset of symptoms and the transport accident. In this respect, Dr Weissman noted that the plaintiff did not have a prior history (that is before the transport accident) of psychotic symptoms and features, and there is also no family history of psychosis.
·
His “respiratory problem” and shortness of breath are associated with the anxiety and panic, and could be regarded as a form of “somatisation” – meaning an external expression of intrapsychic distress.
In particular, Dr Weissman states:
“The claimant’s premorbid psychiatric prognosis, before the transport accident on 20 September 2006, was probably fair, but not very good. He was totally incapacitated for work, presumably on physical grounds in combination with factors considered under the definition of ‘suitable employment’. He probably developed, or was in the process of developing, a Chronic Pain Disorder (pre- transport accident) and may have had some depression and anxiety. Nevertheless, his quality of life, level of function and level of activity were at least fair.
He was involved in a transport accident that occurred on 20 September 2006 in which he sustained physical injuries which are outside my area of expertise. He has also sustained and developed at least a moderately severe psychiatric, psychological, emotional and behavioural reaction, with widespread psychiatric symptoms and features, psychiatric conditions and mental injuries since the transport accident.
Since the transport accident, continuing to the present time, there has been at (sic) a moderately severe decline and deterioration in all aspects, facets and modalities of this quality of life, level of function, level of enjoyment and level of pleasure, with marked functional impairment, marked impact upon his social/interpersonal functioning, marked impact upon his recreational functioning and an entrenchment and reinforcement of his total incapacity for work.
His psychiatric prognosis would now be regarded as very poor and unfavourable.
… .”[53]
[53]See exhibit 5 at pages 103-104 PCB
68 Subsequently, Dr Weissman was provided with the report of Dr Kwong dated 17 October 2012 and was requested to give “any additional comments” that he may have. In a report dated 30 October 2012,[54] Dr Weissman states that “by and large” the diagnoses and opinions of Dr Kwong are “consistent” with his own. Whereas he considered the plaintiff to be suffering from mild to moderate Post-Traumatic Stress Disorder symptoms and traumatisation features, Dr Kwong considered that the plaintiff suffered from a full-blown Post-Traumatic Stress Disorder, whereas Dr Weissman considered that the plaintiff was presently suffering psychotic symptoms and features but not a full-blown chronic schizophrenia. Furthermore, he accepted that the plaintiff was suffering from chronic pain.
[54]See exhibit 5 at page 105 PCB
69 Subsequent to that, Dr Weissman was provided with a further report from Dr Kwong dated 27 June 2013 and requested to make any further comments based on such further report. In a report dated 18 July 2013,[55] Dr Weissman again generally repeats his earlier views.
[55]See exhibit D at page 108 PCB
70 Dr Weissman re-examined the plaintiff on 3 July 2014.[56] At that time, the plaintiff made the following complaints:
[56]See report of same date, exhibit 5 at page 11 PCB
Similarly, to the extent that there was any aggravation of the plaintiff’s pre-existing back injury as a result of the transport accident, I also accept the opinion of Mr Kierce, that on the basis of his examination, that any aggravation was of a temporary nature. In this respect, I note the history obtained by Mr Kierce that according to the plaintiff when examined:
“He says that his back is basically like it used to be, perhaps a little worse. He finds that sitting aggravates the pain but standing helps to relieve it. He can walk quite well.”[74]
[74]Exhibit A, page 15 DCB
(j) I do accept that the plaintiff clearly suffered a fractured sternum and in this respect, refer to the opinion of the treating orthopaedic surgeon, Associate Professor Miron Goldwasser, who examined the plaintiff on 30 October 2007 on referral by his local doctor. As I have already noted, Professor Goldwasser considered that although there had been some healing of the fracture of the sternum, there still remained a gap which, although safe, would give rise to residual symptoms and discomfort in the front of the chest. Professor Goldwasser considered this not unusual and can be quite prolonged. This opinion was supported by the respiratory specialist, Dr Jonathan Burdon, who examined the plaintiff on 4 May 2009. Accordingly, I consider such pain to be of an organic basis rather than psychologically generated;
(k) In relation to the allegation by the plaintiff that he has trouble “breathing”, I find, consistent with the opinions from the respiratory specialists, Dr Jonathan Burdon, Dr David Hart and Dr Abraham Rubinfeld, who respectively examined the plaintiff on 4 May 2009, 14 April 2009 and on 17 July 2011, that there was no evidence of any lung injury which would reduce the vital capacity in such a way. It is to be noted that the examiner at the time of the lung function testing on 14 April 2009 recorded “Maximal effort likely not achieved”. Whereas Dr Burdon considered that the poor expiratory effort was likely to be due to chest pain, both Dr Hart and later, Dr Rubinfeld, conclude that the plaintiff’s “depression and chronic pain syndrome are the main determinants of his dyspnoea … there is no physical problem with his lungs”.
I do refer to the clinical notes of Dr Rowais, who reports –
§ on 29 September 2006 (nine days after the accident), that although the plaintiff was suffering chest pain, there was no dyspnoea (that is difficult or laboured breathing);
§ on 20 March 2007, again although chest pain, there was no dyspnoea;
§ again on 20 April 2007, although chest pain, no dyspnoea;
§ on 2 August 2007, there was no respiratory distress;
§ on 18 November 2008, no dyspnoea.
In such circumstances, to the extent that the plaintiff demonstrated poor respiratory function, I do not relate that to the transport accident.
I should add that also when examined by Dr Rowais on 29 September 2006, 20 March 2007 and 20 April 2007, histories were obtained of no paroxysmal nocturnal dyspnoea.
131 In part, based on some of the findings made, I now consider what, if any, mental or behavioural disturbance or disorder the plaintiff suffered as a result of the transport accident.
132 Initially, I again refer to the clinical notes of Dr Loizou and Dr Rowais. A perusal of such notes does not reveal any reported symptoms of auditory hallucinations or indeed, any symptoms consistent with psychotic illness. In particular, I refer to the following clinical notes of Dr Rowais:
(a) On 5 September 2006 (ten days prior to the transport accident), a history was given by the plaintiff that he had “poor sleep”. However, a further history was given that he has –
“No early morning wakening. Normal mood. Normal self-esteem. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse … .”
(b) On 2 August 2007, Dr Rowais obtained a history that the plaintiff suffered “Poor sleep. Early morning wakening. Depressed Mood” and this was the date when Dr Rowais referred the plaintiff to Dr Kwong with alleged symptoms of Post-Traumatic Stress Syndrome. On the same day, Dr Rowais obtained a history from the plaintiff that he had –
“Normal self-esteem, no irrational fears, no panic attacks, no compulsive behaviours, no delusions, no hallucinations, no suicidal thoughts, no substance abuse”;
(c) On 15 August 2008, the plaintiff gave a history to Dr Rowais of –
“Normal sleep. Early morning wakening. Normal self-esteem. No irrational fears. Panic attacks.[75] No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse. Depressed mood.”
[75]As I have already indicated, I believe this should read “no panic attacks”
(d) On 18 November 2008, Dr Rowais obtained a history from the plaintiff that he had:
“Normal sleep. No early morning wakening. Normal mood. Normal self-esteem. No irrational fears. No panic attacks. No compulsive behaviours. No delusions. No hallucinations. No suicidal thoughts. No substance abuse.”
133 Dr Kwong has been the treating psychiatrist of the plaintiff since 3 October 2007. I was informed by Counsel that based on her reports which set out the various consultations, she has consulted with the plaintiff over forty times up to the present. Clearly, careful consideration has to be given to the opinions expressed by her given the time over which she has consulted with and treated the plaintiff.
134 It is to be noted that at all times, consultations between Dr Kwong and the plaintiff were in English, without the assistance of an interpreter. Furthermore, at no time did Dr Kwong seek, or have available, the medical records of the general practitioners treating the plaintiff up to the transport accident and, for that matter, after the transport accident. Seemingly, she was wholly reliant as to the mental health status of the plaintiff on histories given by the plaintiff and, perhaps to a lesser extent, the comments of his wife, both in her reports and as further articulated in her viva voce evidence. Dr Kwong was of the opinion that the plaintiff suffered a Post-Traumatic Stress Disorder as a result of the transport accident and such Disorder aggravated a pre-existing chronic low-grade schizophrenic illness, making his anger outbursts more explosive and his auditory hallucinations more vivid and disturbing.
135 I reject such opinion on the available evidence. There are both inconsistencies in the purported histories given by the plaintiff to Dr Kwong and indeed, a degree of inconsistency in what Dr Kwong asserts is the basis for such diagnosis.
136 At her initial consultation (approximately twelve or thirteen months after the transport accident), Dr Kwong obtained a history from the plaintiff, amongst other things, that:
(a) his neck was “chronically painful with headaches” and that with such headaches, he gets “more angrier”;
(b) since the transport accident, he has been “emotionally badly affected” and that after the transport accident, he felt “very very bad what happened”;
(c) one or two months after the transport accident, he became “nervous, upset, depressed, mood up and down, shouted at the kids. Sometimes I hit my kids. Bang bang bang” and had become generally more irritable and angry and upset with the children;
(d) the plaintiff was adamant that before the transport accident, he was suffering from chronic low-back pain but “mentally I was very well”;
(e) the plaintiff complained of losing pleasurable effects and feeling depressed and impatient and that “bad words just came out of my mouth” and people talking to him can upset him. That his “sleeping” was a problem and he has nightmares involving dreams with snakes and dead people and of his father who died;
(f) during this period of time, the plaintiff had suicidal thoughts and made tentative steps twice and admitted to hearing voices which “scared him”.
137 Such histories are seemingly quite inconsistent with his reporting of symptoms to his general practitioner.
138 In coming to her diagnosis that the plaintiff had been suffering from a chronic low-grade schizophrenic illness prior to the transport accident, which manifested itself in lack of motivation for employment, experiencing auditory hallucinations and anger outbursts, Dr Kwong gave evidence that such opinion was based in part on talking to the wife of the plaintiff[76] and getting more information from the plaintiff as to his state prior to the transport accident.
[76]T25, L16-18
139 In this respect, Dr Kwong gave evidence that she “got out of him” that the plaintiff was experiencing auditory hallucinations prior to the transport accident, had angry outbursts prior to the transport accident and had a loss of motivation to look for employment. This assertion as to the occurrence of auditory hallucinations prior to the transport accident must be compared to the direct evidence of the plaintiff that he never heard voices before the transport accident nor had he suffered any hallucinations before the transport accident. When giving that evidence, the plaintiff asserted that the voices that he began to hear occurred three or four months after the transport accident.
140 I also note that Dr Kwong accepted in cross-examination that she would have expected the pre-existing psychosis to manifest itself “almost immediately” after the transport accident. Later, she gave evidence that any gap between the transport accident and when the general practitioner referred the plaintiff to her because of some symptoms, was not a gap which was “that significant”.
141 Dr Kwong accepted that she was unaware of the attendance by the plaintiff on Dr Rowais on 5 September 2006 (fifteen days prior to the transport accident) and that the history obtained by Dr Rowais would be “at odds” with the history given to her by the plaintiff.
142 Furthermore, Dr Kwong, in describing the various dreams and nightmares said to have been suffered by the plaintiff, accepted that none seemingly directly relate to the transport accident, that they more represent “a sense of danger”. She accepted under cross-examination that such dreams could be possibly unrelated to the transport accident.
143 Leaving aside the precise diagnosis, Dr Kwong gave evidence that both the condition of Post-Traumatic Stress Disorder and the psychotic illness have “subsided quite a lot” although not to the point where he did not require any treatment.
144 Later in her evidence, although not completely clear, Dr Kwong seemed to suggest that any fluctuation in the psychotic condition she had diagnosed would be due to “a reflection of an independent illness”. In particular, she gave this evidence:
A:“The underlying condition fluctuates itself, that’s schizophrenia. There’s no longer direct - as I said it aggravated it but there’s a recovery - if you keep on having pain, keep on having scary experience it might make it worse, but he learned to live with that but his schizophrenic fluctuate by itself. It’s become an independent illness.
Q:Okay. So in 2012 what he’s experiencing then sadly is these symptoms of psychosis, but you say that’s a reflection of an independent illness, is it?---
A:Yes.”
MRMIDDLETON:
Q:“It would be there irrespective of the transport accident?---
A:In the future. It’s a completely different illness.”[77]
[77]T72, L8-21
145 I also consider there are inconsistencies in the histories given by the plaintiff to Dr Kwong as to the frequency or otherwise he attends the “club”, his ability to drive (which she never made any direct enquires about) and his day-to-day activities.
146 As I have already recorded, those acting for the plaintiff put some emphasis on the analysis recorded by Dr Weissman. Dr Weissman had available to him ultimately the reports of the respiratory physicians, Dr Jonathan Burdon, Dr Abraham Rubinfeld, Dr David Hart, the reports of Dr Stella Kwong dated 27 October 2008, 20 November 2008, 17 October 2012 and 27 June 2013, the report of Dr Nathan Serry dated 9 February 2010 and the report from Dr Jager dated 6 June 2014. Seemingly, Dr Weissman did not have available the clinical notes of the treating general practitioners of the plaintiff either before or after the transport accident.
147 When last examined by Dr Weissman, he considered that the plaintiff’s pre-existing Chronic Pain Disorder associated with psychological factors and a general medical condition (seemingly related to the longstanding low-back condition prior to the transport accident) had been aggravated. Even if one accepts that there has been an aggravation of such condition, it is, in my view, very difficult to gauge the extent of any aggravation in terms of Petkovski v Galletti,[78] bearing in mind that fifteen days prior to the transport accident, the plaintiff was complaining of depression and low-back pain and sciatica. It is for the plaintiff to establish that the transport accident resulted in an aggravation which constitutes a “serious injury” within the meaning of s93(17)(c) of the Act. It must also be borne in mind the clinical notes of Dr Rowais, which would suggest no particular ongoing pain after the transport accident save for the chest pain, and certainly no suggestion of an aggravation of some pre-existing Chronic Pain Disorder.
[78]Op cit
148 Dr Weissman also diagnosed the plaintiff to be suffering from a moderately severe Mixed Reactive Depressive and Anxiety Syndrome with intermittent passive suicidal ideation, a degree of anhedonia unhappiness, together with psychotic symptoms and features. Based on the findings earlier made, I do consider that the plaintiff has ongoing chest pain as a result of the fracture to his sternum but no ongoing pain symptoms which can be seen now as a result of the transport accident.
149 Although he may have some reactive depression and anxiety, it is for the plaintiff to establish what depression and anxiety has resulted from the transport accident in order to establish a “serious injury” within the meaning of the Act. In the alternative, Dr Weissman considers that there is diagnostic criteria for a diagnosis of Major Depressive Disorder (with anxiety and psychotic features) of moderately severe intensity or severity. This diagnosis has to be placed in the context of the pre-existing condition of the plaintiff and indeed, the circumstances following the transport accident, as detailed in the clinical notes. If one accepted the diagnosis of Major Depressive Disorder, it is necessary for that mental condition to have resulted from the transport accident. Similarly, in relation to paranoid psychotic symptoms and features as described by Dr Weissman, it is again necessary to establish as a matter of probability that such symptoms and features result from the transport accident. Again, I stress that based on the clinical records of the general practitioners treating the plaintiff, there is no suggestion of any psychotic symptoms.
150 Ultimately, I am not persuaded that each of these diagnoses have resulted from the transport accident and, in any event, to the extent that any of these diagnoses represent an aggravation of a pre-existing condition, that such aggravation has resulted in a serious injury within the meaning of s93(17)(c) of the Act.
151 On balance, I consider the opinion of Dr Jager is the most likely description of the psychiatric or psychological state of the plaintiff since the transport accident. It is to be stressed that the opinion of Dr Jager is based at least, in part, on a perusal of the clinical records of both general practitioners and Dr Kwong. I further accept the diagnosis of Dr Jager that in truth, the plaintiff’s illness consist of a depressive illness which has been of long standing and has no relationship to his transport accident.
152 I should also add that even if I be wrong and that there is a clearly related mental or behavioural disturbance or disorder resulting from the transport accident, I am not persuaded that the consequences of such condition (assuming such condition to be permanent) is such that it can be described as “severe”. In this respect, there is clear evidence that the plaintiff is able to attend to his activities of daily living, drive a motor vehicle, attend coffee shops and continue some socialising. His evidence fluctuated as to the frequency or otherwise of attending the club, although he maintains he still plays cards with a friend. He goes out to buy things and perhaps in particular, has been able to travel overseas for lengthy periods of time. In this respect, I refer to exhibit G, which is a summary of his international travel and in particular, I refer to the following:
(a) In 2011, he travelled overseas, seemingly to Croatia and Macedonia, and was away from 19 April 2011 seemingly to about June 2011. There is reference that he was traveling by car for some of that time;
(b) In 2012, he seemingly travelled to Europe on 22 July 2012 and came home seemingly on 30 September 2012;
(c) In 2013, he seemingly travelled to Kosovo for a couple of weeks in March and returned to Kosovo on 25 July 2013 for approximately a month. In his evidence before the Court, he was uncertain whether he was going travel in the balance of 2014.
153 After a consideration of all of the evidence, I am not satisfied that the plaintiff has discharged his onus in establishing that as a matter of probability the transport accident resulted in a mental or behavioural disturbance or disorder. Furthermore, if there is such a mental or behavioural disturbance or disorder which exists on a permanent basis resulting from the transport accident, then the consequences of such condition are not “severe” within the meaning of s93(17)(c) of the Act. I have come to this view, in part because of:
(a) The inconsistencies in the evidence of the plaintiff;
(b) The existence of detailed clinical notes from the general practitioners which do not tend to support any particular diagnosis other than perhaps some symptoms of Post-Traumatic Stress Disorder which must be assessed in the circumstances at that time;
(c) The inability, on the evidence, to gauge the impairment and resultant consequences of the plaintiff prior to the transport accident as a result of any psychological condition and accordingly, the inability to assess the extent of any aggravation, if there be any, as a result of the transport accident.
(d) I am conscious of the evidence of the wife of the Plaintiff but also note that seemingly Dr Kwong came to the view that the plaintiff had psychotic factors prior to the transport accident, in part, because of what was said to her by his wife. I tended to the view she underplayed the health of the Plaintiff prior to the Transport Accident. Her evidence is seemingly inconsistent with the clinical notes of Dr Rowais on 5 September 2006 when her husband was complaining of depression together with back pain and sciatica.
154 Accordingly, the claim must be dismissed.
155 I will hear the parties on the question of costs.
- - -
156
ANNEXURE “A”
1 The plaintiff tendered the following documents:
Exhibit 1:
–Reports of Dr Stella Kwong dated 20 November 2008; 27 October 2008; 17 October 2012; 27 June 2013 and 22 September 2014.
(All such reports are found at pages 25 to 46 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2:
–Affidavits of the plaintiff sworn on 4 October 2012; 25 September 2013, and on 30 September 2014.
–Affidavit of the wife of the plaintiff, Mrs Sabrije Gashi, sworn on 25 September 2013.
(Such affidavits are found at pages 2 to 16 of the PCB).
Exhibit 3:
–Medical reports of Dr D F Rowais dated 10 November 2008 and 3 October 2012.
(Such reports are found at pages 17 to 24 of the PCB).
Exhibit 4:
–Report of the orthopaedic surgeon, Mr Neil Cullen, dated 11 February 1987.
(Such report is found at page 155 PCB).
–Medical report of the orthopaedic surgeon, Mr John F O’Brien, dated 17 March 1987.
(Such report is found at page 156 PCB).
Exhibit 5:
–Reports of the consultant psychiatrist, Dr David Weissman, dated 26 April 2012; 30 October 2012; 18 July 2013; 3 July 2014 and 1 September 2014.
(All such reports are found at pages 88 to 133 PCB).
Exhibit 6:
–Reports of the general surgeon, Mr Kenneth Brearley, dated 21 May 2009; the orthopaedic surgeon, Associate Professor Myron Goldwasser, dated 5 December 2008; the respiratory physician, Dr Jonathan Burdon, dated 8 May 2009; 15 May 2009 and 21 December 2011, and the respiratory physician, Dr David Hart, dated 14 April 2009.
(All such reports are found at pages 134 to 154 PCB).
2 The defendant submitted the following material:
Exhibit A:
– The report of the respiratory physician, Dr Abraham Rubinfeld, dated 16 September 2011; the orthopaedic surgeon, Mr Paul Kierce, dated 9 February 2010; the consultant psychiatrist, Dr Nathan Serry, dated 9 February 2010 and 17 September 2013, and the report of the consultant psychiatrist, Dr Alan Jager, dated 6 June 2014.
(All such reports are found at page 6 and pages 12 to 53 of the Defendant’s Court Book (“DCB”)).
Exhibit B:
– Two Transport Accident Commission (“TAC”) Claim Forms dated 30 October 2006 and 4 June 2007.
(All such documents are found at pages 54 to 71 DCB).
Exhibit C:
– Clinical notes from Dr Rowais consisting of 34 pages.
Exhibit D:
– Clinical notes from Dr Loizou (with redactions) from the Moonee Ponds Medical Centre, consisting of 28 pages.
Exhibit E:
– Letter from Dr Rowais to Dr Kwong dated 3 August 2007.
Exhibit F:
– Letter from Dr Loizou dated 14 September 1988.
Exhibit G:
– Passport summary.
Exhibit H:
– Summary of various events (tentatively admitted subject to those acting for the plaintiff perusing it and being satisfied with it being an accurate document). Ultimately no objections were made by those acting for the plaintiff.
0
7
0