Hashemi v Transport Accident Commission
[2024] VCC 1513
•4 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01607
| SEYED MOSHTAGH HOSSEIN HASHEMI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May, 21 May and 28 June 2024 | |
DATE OF JUDGMENT: | 4 October 2024 | |
CASE MAY BE CITED AS: | Hashemi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1513 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – psychological or psychiatric injury – pain and suffering – reliability
Legislation Cited: Transport Accident Act 1986 (as amended), s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Rowe v Transport Accident Commission [2017] VSCA 377; Petkovski v Galleti [1994] 1 VR 436; Spence v Gomez [2006] VSCA 48; Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Johnson | Arnold Dallas McPherson |
| For the Defendant | Mr Andrew Moulds KC with Mr S Pinkstone | Landers & Rogers |
HER HONOUR:
Introduction
1Mr Hashemi seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring common law proceedings to recover damages for physical and psychiatric injuries he allegedly sustained as a driver of a vehicle involved in a rear-end collision at a traffic light on 31 May 2017 (“the 2017 transport accident”).
2Mr Hashemi relies on an injury to his spine, a physical chronic pain condition, a primary psychiatric or psychological injury (Post-Traumatic Stress Disorder (“PTSD”)) and secondary major depressive disorder consequent on the PTSD condition.[1]
[1]Plaintiff’s written submissions at page 11
3The case was contested on the basis that a pre-existing psychiatric condition was producing the claimed consequences and that Mr Hashemi’s credit had been impeached.
4Mr Hashemi is twenty-eight years old. He was born in 1995 in Tehran to Afghani parents. He has three sisters and a younger brother. He and his family lived in Iran until 2012, when they were granted a humanitarian visa to Australia. The Hashemi family arrived here in April 2012, when Mr Hashemi was sixteen years old.
5Mr Hashemi completed his secondary school education in Geelong in traumatic circumstances. He formed a relationship with a fellow student from the same cultural background. This relationship was the catalyst for intervention orders to be made against him and a number of criminal charges to which he pleaded guilty. He has spent some time in prison and successfully completed a community correction order (”CCO”).
6At the time of the 2017 transport accident, Mr Hashemi was almost twenty-two years old. He was working two part-time casual jobs and studying for a Bachelor of Arts with a double major in international studies and politics in international relations. He left those jobs immediately after the 2017 transport accident.[2]
[2]Plaintiff’s Amended Court Book 14 at paragraph [22]
7In July 2019, two years after the 2017 transport accident, Mr Hashemi completed his university degree.[3] He has been applying for work in politics,[4] but is currently unemployed.
[3]PACB 201
[4]Transcript (“T”) 132
8Mr Hashemi has been prescribed numerous medications for his physical conditions and a combination of antipsychotics, antidepressants and anti-anxiety and sleep medications[5] for his psychiatric conditions. He alleges he is in constant pain and has had suicidal thoughts, flashbacks and nightmares. He alleges he wears adult incontinence pads due to risk of urinating.[6]
[5]PACB 16 at paragraph [35]
[6]PACB 16 at paragraph [37]
9The hearing proceeded in the usual way. Mr Hashemi was the only witness to give oral evidence and be cross-examined. The parties otherwise tendered various reports from their respective Court Books.
The relevant legal principles
10The legal principles are well known and not in dispute.
11The 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 both subparagraphs (a) and (c) of s93(17) of the Act.[7]
[7] Pursuant to s93(6) of the Act
12In order to succeed, Mr Hashemi must prove, on the balance of probabilities, that:
(a) as a result of a physical injury in the 2017 transport accident, he has suffered an impairment or loss of a body function, which is both serious and long term. To be “serious”, the consequences of the injury must be serious to Mr Hashemi with respect to either pecuniary disadvantage or pain and suffering, or both. Further, Mr Hashemi must establish that the injury has produced an impairment or loss of body function which, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described as “at least very considerable” and “certainly more than ‘significant’ or ‘marked’”;[8]
(b) his alleged physical and psychiatric injuries were caused by the 2017 transport accident alone. It is insufficient for Mr Hashemi to establish that the accident was “a cause” of the alleged injuries;[9] and
(c) any aggravation of his pre-existing psychiatric condition, caused by the accident, meets the test of “severe”.[10] It is not permissible to combine the effects of the prior condition with the effects of the accident. A comparison must be made of Mr Hashemi’s condition immediately before the accident, with his condition after the accident, and an assessment made of the extent of any additional impairment. If that additional impairment is not “severe” then leave must be refused.[11]
[8] Humphries & Anor v Poljak [1992] 2 VR 129, at 140-1
[9]Rowe v Transport Accident Commission [2017] VSCA 377
[10]Petkovski v Galleti [1994] 1 VR 436 at 443-4 (“Petkovski”)
[11]Petkovski. See also Spence v Gomez [2006] VSCA 48
The issues before the Court
13Mr Hashemi’s credit and reliability were the focus of the application. He and his lawyers were on notice of the credit issues well in advance of the hearing.[12]
[12]The proceeding had been listed on 11 October 2023 and adjourned. The Court vacated the hearing date of 11 October 2023 to allow Mr Hashemi to file a further affidavit. Under “Other matters” Judge Purcell noted that Counsel for Mr Hashemi indicated the matter was not ready to proceed, as his credit was central to the resolution of the proceeding and t the history given by Mr Hashemi to several doctors was incomplete and misleading. Counsel sought and obtained leave for Mr Hashemi to provide an accurate history, and an additional affidavit sworn on 22 November 2023 was made by Mr Hashemi, in an attempt to address these matters.
14Mr Hashemi’s third affidavit was an attempt to address some of the credit matters and provide explanations for the apparent lack of accurate history to doctors.
15The Court is required to decide whether Mr Hashemi suffered any ongoing physical injury to his spine which was, at the time of his application, organically based and continuing to produce pain, interfere with activities and cause pecuniary disadvantage. The existence of the chronic pain condition is contingent upon the credit or reliability findings.
16The Court is required to decide what was Mr Hashemi’s psychiatric condition prior to the 2017 transport accident and whether the alleged psychiatric consequences of that accident are “severe” in the required sense, without aggregating the two conditions.
Summary of findings
17I find Mr Hashemi to be an unreliable witness. He has a complex history of past trauma and psychiatric involvement. This is a possible explanation for his unreliability.
18There is no reliable evidence of any ongoing physical injury or condition caused by the transport accident.
19The unreliability finding is fatal to the claim for a chronic pain condition, as there is no objective evidence establishing the existence of such a condition.
20Mr Hashemi has not discharged his onus of establishing what psychiatric injuries were caused by the 2017 transport accident, nor delineating them from any past psychiatric condition. His application fails.
21Mr Hashemi’s application involved some complexity. The Court’s attention was drawn to a range of prior events, personal traumas and psychiatric treatment. All of these prior matters had the potential to impact on the Court’s assessment of the issues in the case.
22Further, it was asserted that there were significant inconsistencies in Mr Hashemi’s presentation to multiple psychiatrists, one of which it was alleged he saw for one purpose, and the others which he saw for the transport-accident conditions.
23In order to understand the reasons for the complexity in the case and the context in which the medical reports were written, it is necessary to set out the background matters and pre-accident treatment reports in some detail before addressing the evidence in the case.
Background
24In April 2012, Mr Hashemi and his family arrived in Australia. He was almost seventeen years old. He had been an exemplary student in Iran, achieving very high grades for academic performance and behaviour.[13]
[13]PACB 12 and translated school report from the Shahid Modarres High School at PACB 189.
25Four months later, in September 2012, Mr Hashemi was treated at First Point Medical Centre in relation to PTSD symptoms and anger management, after presenting with depression and seeking help for psychosocial stressors.[14]
[14]Defendant’s Court Book (“DCB”) 187
26In June 2014, an intervention order was issued against Mr Hashemi for the protection of a fellow student with whom he had been romantically involved.
27On 26 June 2014, Mr Hashemi was assessed by Barwon Health Community & Mental Health (“Barwon Health”). At the time of the referral, he had spent ten days in custody for breaching intervention orders. The history noted by the service was that he had threatened a girl with broken glass and written the word “kill” beside the principal’s name.[15]
[15]DCB 187
28On 10 July 2014, Mr Luke Lindsay from the Mental Health Court Liaison Program reported on his assessment of Mr Hashemi in the Geelong Police Station Cells. Mr Hashemi is reported as having denied any history of mental illness or involvement with mental health services.
29Mr Lindsay considered Mr Hashemi was presenting with an emerging antisocial personality disorder, characterised by disregard for social obligations, lack of remorse and deceitfulness. There was no sign of a major mental illness at the time of assessment.[16]
[16]DCB 205-207
30On 20 August 2014, Mr Hashemi appeared in the Geelong Magistrates’ Court in respect of a number of charges as follows:
(a) contravening bail conditions (two charges) and contravening a family violence intervention order, for which he was sentenced to thirty days’ imprisonment cumulative;
(b) making threats to kill, unlawful assault and two charges of contravening a family violence interim intervention order, for which he was convicted and sentenced to ten days’ imprisonment;
(c) driving while disqualified (two charges) and driving while suspended, for which he was convicted and sentenced to ten days’ imprisonment and disqualified from driving for four months;
(d) criminal damage, for which he was convicted and sentenced to an eighteen-month CCO (without specified conditions);
(e) two charges of contravening an intervention order, contravening bail conditions, breaching a family violence safety notice, unlawful assault and use threatening words in a public place.[17] He was convicted and sentenced to an eighteen-month CCO (without specified conditions);
(f) exceeding the speed limit, using a hand-held mobile phone and stating a false name, in respect of which he was convicted and fined a total of $600.[18]
[17]DCB 115 – National Police Certificate Check Results as at 28 March 2017
[18]See DCB 115 ꟷ on 21 August 2014, this fine was varied with an option to perform twenty-one hours of community work in default of payment
31Sometime after the charges were laid, Mr Hashemi was expelled from school and unable to complete his VCE.[19]
[19]PACB 13, paragraph [12]
32In April 2014, Mr Hashemi was a passenger in a vehicle driven by his mother. She was severely injured in the collision and taken to hospital. Mr Hashemi had no physical injuries arising from this accident.
33Between 2014 and December 2015, Mr Hashemi completed a variety of courses, which included Participation in Workplace Safety, Working with Numbers and Money, Provide Responsible Service of Alcohol, Certificate III in Food Processing, English as a Second Language Mentoring Program and Certificate IV in EAL (Further Study).[20]
[20]PACB 189-196
34In April 2015, Mr Hashemi began treatment with a psychiatrist, Dr Youn Khozouei. Dr Khozouei noted the traumatic relationship at school which led to his dealings with the authorities. In particular, Dr Khozouei noted that Mr Hashemi was engaging in self-beating, had formed a belief he had been influenced by black magic and was hearing voices outside his room. Dr Khozouei diagnosed depression with features of PTSD and “R/O[21] prodromal phase of psychosis”.[22]
[21]This could be a reference to “Risk Of”.
[22]DCB 6
35On 12 February 2015, Mr Hashemi again appeared at Geelong Magistrates Court. He was dealt with for breaching the CCOs imposed on 20 August 2014. The breach was found proven and he was ordered to complete an eighteen-month CCO with 250 hours of community work, and fined $750.
36In 2016, Mr Hashemi enrolled in a Bachelor of Arts at Swinburne University of Technology (“Swinburne University”). His academic transcript shows that, in 2016 and the first semester of 2017, he received six credits and two passes, one conceded pass, and failed five units.[23]
[23]PACB 201-203
37On 21 September 2016, a community corrections officer confirmed that Mr Hashemi had successfully completed his CCO and he had been extremely compliant with the order.[24]
[24]PACB 197. The eighteen-month CCO with 250 hours of community work was imposed on 15 February 2015 and would have been completed on 14 August 2016.
The 2017 transport accident
38On 31 May 2017, at approximately 7.30pm, Mr Hashemi’s vehicle was rear-ended while he waited at a traffic light at Keys Road in Moorabbin. The collision caused his vehicle to move forward and collide with a truck in front. After recovering from the initial shock, Mr Hashemi drove himself home.[25]
[25]PACB 15
39On 7 July 2017, Mr Hashemi attended his doctor for an unrelated medical condition. No record of the accident was made on that day.[26]
[26]DCB 214-215
40On 20 July 2017, Mr Hashemi was informed his application for Australian citizenship had been refused.[27]
[27]PACB 24 [6] and DCB 116. The decision record accompanying the letter was not in evidence, however a subsequent letter from Mr Hashemi to the Department of Immigration, which was in evidence, provides that the reason was “Residency requirement was not satisfied” because Departmental records state he was not eligible to apply for four years after his release from custody ꟷ DCB 150.
41On 14 August 2017, Mr Hashemi’s doctor first recorded complaints about the 2017 transport accident. These included the following:
“….
pt was initially OK for first 2 days
didnt seek any medical issues (sic)
since then intermittent muscular shoulder pain and some leg pain
had some whiplash like symptoms
mostly settled but now only when exerts himself
o/e
no C-spine tenderness
full ROM of neck and back
mild tenderness on trapzius
reassured pt”[28]
[28]DCB 215
(sic)
42Between 23 August 2017 and 6 April 2018, Mr Hashemi attended regular consultations with a psychiatrist, Dr Geoffrey Hogan, for treatment of his transport-accident-related psychiatric injuries and other conditions.
43In May 2018, Dr Hogan reported that Mr Hashemi had suffered with depression since his mother’s accident in 2014, made worse by the 2017 transport accident. He also has had nightmares and flashbacks since the 2014 incident, made worse after the 2017 transport accident, and he was afraid to drive. He complained of social withdrawal and panic symptoms, with fear and palpitations. He was irritable, extremely anxious and depressed.[29]
[29]PACB 117-119
44On 4 October 2018, Dr Khozouei reported that Mr Hashemi was feeling and functioning well and had no concerns about his mental health. He appeared relaxed and happy when seen for his half-yearly review on 4 October 2018.[30]
[30]DCB 12
45Between Semester 2 in 2017 and the end of Semester 1 in 2019, Mr Hashemi completed his Bachelor of Arts degree, obtaining two distinctions, eight credits and seven passes.[31]
[31]PACB 201-203
46In October 2018, Mr Hashemi made another application for Australian citizenship[32]. As part of that application, he made a statutory declaration to the Immigration Department providing an explanation for the criminal offending.
[32]PACB 24 [6]
47That explanation included the following:
“[The criminal property damage is associated] with the severe depression and anxiety left from my home country Afghanistan and Iran. … .
[The driving charges occurred because] Being an inexperienced 18 years old driver, being mentally sick and a refugee background who came from a country without proper driving rules is my explanation for this part. … .
[Other mitigating matters that should be taken into account include] The cultural differences ….severe depression and anxiety attacks at the time of the incidents.”[33]
[33] DCB 183-184
Evidence
48Mr Hashemi made three affidavits in support of his application. The first on 4 October 2022, the second on 1 October 2023 and the third on 22 November 2023.
49In the first two affidavits, Mr Hashemi deposed to the following pain and suffering consequences, which he attributed to the 2017 transport accident:
(a) severe whiplash due to his head striking the head rest in the collision;
(b) mild back pain associated with mild-to-severe neck pain and headache;
(c) mental health problems, including flashbacks and nightmares, which commenced immediately, along with anxiety;
(d) being forced to resign from his employment due to physical and mental complications arising from the 2017 transport accident;
(e) inability to concentrate and retain information, causing him to fail units in the year of the accident, and eventually being able to complete his studies, but it took longer than it should have and he performed poorly due to his mental injuries;
(f) loss of ability to enjoy his life and loss of friendship;
(g) suicidal thoughts;
(h) treatment by four different psychiatrists and a psychologist;
(i) the need to take various antipsychotic, anti-anxiety and antidepressant medication;
(j) frequent disturbing and vivid nightmares about transport accidents, blurry vision, dizziness, shakiness, anxiety, sweating and dry mouth from the medication;
(k) needing to wear an incontinence pad during the day due to the risk of urinating;
(l) being unkempt and attending the psychiatrist and psychologist appointments in his pyjamas;
(m) inability to return to work, with a failed attempt in 2019, resulting in being terminated by the owner of a restaurant due to lack of concentration and inability to do physical work;
(n) impairment of ability to drive, being very anxious and stressed when driving a car and having flashbacks, and having to drive very slowly and below the prescribed speed limit, which angers other drivers;
(o) restricted social interactions, with inability to go to restaurants with family and social anxiety in the presence of a lot of people;
(p) loss of libido and loss of interest;
(q) burning and stabbing pain in the neck and upper back region. The pain extends down the axial spine and affects his lumbar area;
(r) having to take analgesics for neck and back pain;
(s) having to consult with pain specialists for the back and neck pain and a neurologist for headache management;
(t) physiotherapy and being on high doses of numerous different pain relievers since the accident, including opiates;
(u) being in constant pain and having to take Norflex for spinal pain and over-the-counter medication as needed;
(v) inability to drive for longer than fifteen to twenty minutes due to back pain;
(w) inability to sit on an aeroplane for a long time and fear and panic during the flight.
50In his third affidavit, Mr Hashemi provided an explanation for the absence of various histories from reports of his treating and medico-legal doctors. He also exhibited various reports from treating psychiatrist, Dr Khozouei, an MRI scan of his spine dated 7 August 2018 and various certificates of completion of studies. In that affidavit, Mr Hashemi deposed that:
(a) he attended Dr Khozouei between 2015 and 2020. He had been diagnosed with major depression with features of PTSD, but during the course of his treatment he attended a men’s behaviour change program and was treated with psychotherapy and medications, as a result of which he understood he had fully recovered from his depression. Dr Khozouei assisted him with his Australian Citizenship application;[34]
(b) he was now aware that some of the psychiatrists he had seen for preparation of reports were not aware of his past history of depression and post-traumatic stress symptoms;[35]
(c) he disclosed the history to Dr Brendan Hayman, consultant psychiatrist, in July 2021 when asked directly about it and also disclosed the history to Dr Hogan and psychologist, Angelique Park. Although he experienced depression following the motor vehicle accident in 2014, he believed that this subsequently resolved after several months;[36]
(d) he had not intentionally omitted the information regarding the criminal charges from the history given to doctors, but may have minimised the information due to being embarrassed by his actions;
(e) due to his limited English, there may have been misunderstandings with doctors about when he finished his VCE;[37]
(f) he continues to take medication on a daily basis – Lyrica, 75 milligrams twice a day; Seroquel, three tablets of 200 milligrams; Dothep, 100 milligrams at night; Fluoxetine, two tablets of 20 milligrams; Diazepam, 5 milligrams up to three times a day; Circadin, 5 milligrams at night; and Panadol Osteo and Panamax as required.[38]
[34]PACB 24
[35]PACB 25
[36]Ibid
[37]PACB 27
[38]Ibid
51Members of Mr Hashemi’s family, and a friend, also made affidavits in support of his claim:
(a) his brother, Amir Hashemi, confirms he observed him taking medications for his back and neck and complaining of pain;[39]
(b) his sister, Touba Hashemi, observed her brother, after the accident, having panic attacks and being unable to pick up her child’s pram. He had to wear incontinence pads. Prior to the accident, he was very attractive and exercised frequently, but since the accident he could not exercise and he has gained a lot of weight. He takes prescribed addictive medications. His hands and body shake when he stresses too much or is anxious;[40]
(c) his friend, Mohammad Karimi, deposed to noticing significant changes in Mr Hashemi’s social life. After the accident, he had stopped going clubbing on weekends, playing soccer and basketball, attending the gym and going to friends’ gatherings. He never observed any symptoms of depression or anxiety in Mr Hashemi prior to the accident.[41]
[39]PACB 57
[40]PACB 62
[41]PACB 59-60
Physical injury
Treating medical practitioners
Dr Anita Nesarajah, treating general practitioner, Dandenong Superclinic
52On 1 September 2016, (eight months prior to subject accident) Dr Nesarajah wrote to the Department of Housing on behalf of Mr Hashemi. She had been treating him for depression and PTSD and he was also seeing a psychiatrist and a counsellor. Mr Hashemi had severe psoriasis, which was affecting his joints and making it difficult for him to walk up and down the stairs. Early housing at ground level would help his mental and physical illness.[42]
[42]PACB 101
53On an unspecified date, Dr Nesarajah provided a medical report headed:
“TAC CLAIM
MEDICAL REPORT FOR SEYED HASHEMI”[43]
[43]PACB 102
54In that report, Dr Nesarajah confirmed that Mr Hashemi has had depression since 2014 and he was first seen at the clinic on 14 August 2017 in respect of the claimed accident on 31 May 2017.
“… He was stationary in his car when another car hit him from behind . He apparently felt alright for a few days then started having shoulder and leg pain . Examination at the time was unremarkable . Subsequently he has come to see me with persistent back and neck pain . He was also seeing the psychiatrist who diagnosed him with post traumatic stress disorder and treatment was started … He has trialled a lot of painkiller , the latest is Palexia but according to [Mr Hashemi] nothing has helped much … .
…
I am unable to predict the prognosis and time frame as the [Mr Hashemi] seems to be exhibiting chronic pain behaviour.”[44]
[44]PACB 102-103
Dr Peter Fergin, dermatologist
55On 7 July 2016, Dr Fergin also wrote to the Department of Housing on behalf of Mr Hashemi. He reported Mr Hashemi had reactive depression as a result of psoriasis associated with significant arthritis, necessitating treatment by a rheumatologist and that Mr Hashemi was being treated with ultraviolet therapy.[45]
[45]PACB 140
Dr Kelvin Kan, general practitioner, Hallam Family Practice
56On 10 October 2016, Dr Kan certified he had examined Mr Hashemi and in his opinion Mr Hashemi’s academic difficulties related to his history of depression, for which he was taking medication and receiving therapy with a psychologist.[46]
[46]PACB 123
Dr Ann French, consultant neurologist
57On 28 June 2018, Dr French reported to Mr Hashemi’s lawyers. Dr French recorded complaints of headache (as well as neck and back), all said to have arisen after the 2017 transport accident. The neurological examination was normal and the MRI brain scan performed on 19 June 2018 showed no structural cause for the headache. Mr Hashemi had ceased Palexia after two weeks, as it had not helped the pain. He had also declined the physiotherapy recommended by Dr Sami Ahmad. Dr French prescribed Epilim, 200 milligrams bd, as Mr Hashemi had requested medication. The headache was related to the whiplash injury sustained in the 2017 transport accident.[47]
[47]PACB 105
Dr Sami Ahmad, Pain Fellow
58Between 1 March and 29 June 2018, Dr Ahmad reported to Dr Nesarajah regarding his diagnosis and treatment of Mr Hashemi. In the reports, the following history is noted:
(a) his headaches were improving, but his spine pain was the same as before. He had stopped taking Palexia and Mobic;
(b) his spinal pain felt like pins and needles and a constant stabbing pain. It was 8/10 at rest. It initially started in the neck and has moved down his whole spine;
(c) he denied issues with bowel and bladder. If he sits for long, he gets saddle anaesthesia;
(d) he had sleep disturbance and felt fatigued most of the time, especially morning and night. He was unable to concentrate for longer periods and his memory was declining. He denied being an anxious person and there were no panic attacks. He had nightmares and flashbacks when he was driving;
(e) he failed all of his units at university after the accident and was threatened with expulsion;[48]
(f) aside from medication, he had no intervention for his pain and reported being scared of needles.[49]
[48]Report dated 22 March 2018 at PACB 143-145
[49]Report dated 29 June 2019 at PACB 146-149
59On examination, Mr Hashemi was noted to have a minimally-reduced range of movement of the neck in all directions, with pain on movement in the trapezius muscles bilaterally. He had a normal range of movement of the lumbar spine. He was tender on palpation in the midline along the length of the spine. Provocative tests were all negative.
60The diagnosis was myofascial back pain and whiplash-associated disorder. A recommendation of pain management to help address his maladaptive coping behaviours was made.[50]
[50]PACB 145 and PACB 148
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
61Mr Hashemi tendered a report of Dr Thomas dated 12 October 2020, prepared at the request of the Transport Accident Commission (“TAC”).
62In that report, Dr Thomas noted that there had been “40+ sessions”[51] of physical therapy at Cranbourne, which had been completed by early 2020.
[51]PACB 108
63Dr Thomas observed Mr Hashemi to be wearing a figure-of-eight Velcro brace for his shoulders, a Velcro brace for his lumbar spine and beneath it, two layers of scarf-like material, reportedly for the support of his spine.
64On examination, Mr Hashemi had excellent general mobility, full range of movement of the cervical, thoracolumbar and lumbar spine and full range of movement of the shoulders and hips. He did not have any dysmetria.
65Dr Thomas viewed the imaging of the MRI scan dated 17 January 2020. He noted that no abnormality was detected.
66In the opinion of Dr Thomas, Mr Hashemi’s spine was not affected by any structural abnormality. There was no evidence of any disc derangement at any level of the spine and the presentation was more in keeping with a myofascial pain syndrome, for which a pain management program was recommended. Contrary to Mr Hashemi’s view, Dr Thomas considered he had capacity to work, at the very least, in sedentary office-type duties. He also reported that abstaining from activities for fear of aggravating his pain was the wrong step.[52]
[52]PACB 107-111
Dr Martin Hill, general practitioner, Dandenong Superclinic
67On 28 September 2018, Dr Hill reported that following the 2017 transport accident, Mr Hashemi had experienced ongoing lower and middle back pain (myofascial in nature) and symptoms of anxiety, depression and PTSD. There had been a significant disruption to his university studies, which led to him failing his course. He has been unable to work and was on Centrelink payments.[53]
[53]PACB 64
68On 4 August 2020, Dr Hill reported that Mr Hashemi first complained about the transport accident on 14 August 2017. He complained of shoulder and leg pain with mild whiplash-like symptoms. He had ongoing issues with anxiety and depression and had been seeing a psychiatrist in Geelong, but was referred to a local psychiatrist, Dr Hogan. At the time of writing the report, Mr Hashemi was being treated by a new psychiatrist, Dr Iain Macmillan.
69Dr Hill confirmed that x-rays of the thoracic spine in August 2017, and x-rays of the neck and a CT scan of the lumbosacral spine, were all reported as normal.
70Dr Hill reported that Mr Hashemi was continuing to experience chronic pain and ongoing anxiety. He had presented to Sandringham Hospital with a panic disorder. He was being treated with Tramadol, Duloxetine, Imovane, Mobic and Seroquel.[54]
[54]PACB 66-67
71On 3 October 2023, Dr Hill reported that the motor vehicle accident in 2014:
“… had a significant adverse effect on his mental health as he had [subsequently developed] a phobia to driving [which also related to] his further MVA in 2017.”[55]
[55]PACB 68
72Dr Hill reported that Mr Hashemi’s psychological injuries were significant. He had limited sleep, nightmares, low appetite, weight loss, inactivity and sleepiness during the daytime, social withdrawal, agoraphobic symptoms, impaired concentration, irritability, flashbacks and constant depressed mood. He had been given a diagnosis of major depressive disorder and PTSD and his medication had been changed to Fluoxetine and Seroquel.[56]
[56]Ibid
73On 3 January and 2 April 2024, Dr Hill provided reports to Mr Hashemi’s lawyers.
74In the first report, Dr Hill confirmed that Mr Hashemi had mechanical back pain. A CT scan of the lumbar spine was reported as normal on 5 December 2017 and an MRI scan of the whole spine on 17 January 2020 also reported no abnormality. However, there had been imaging undertaken at the Precision Brain, Spine and Pain centre, which reported multilevel spondylitic changes.[57] Mr Hashemi was not incapacitated for work by reason of his spinal condition, but was incapacitated predominantly on account of his psychiatric condition.
[57]PACB 70
75In the second report, Dr Hill amended the capacity opinion set out in the first report. He now reported the spinal condition was contributing to his incapacity, together with his psychiatric condition, both of which related to the 2017 transport accident. He also reported he considered Mr Hashemi had been candid about his prior history.[58]
[58]PACB 72
Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist
76Between October 2018 and September 2021, Mr Hashemi attended upon Dr Sullivan for treatment.
77Dr Sullivan provided six progress reports to Mr Hashemi’s treating general practitioner.[59] In those reports, Dr Sullivan confirmed the following:
(a) as of November 2019, he had not seen Mr Hashemi for well over twelve months, but when last seen he had been complaining of axial back pain following the 2017 transport accident. Previous scans demonstrated structural change and updated imaging, including an MRI scan and bone scan, had been requested;[60]
(b) on 18 February 2020, Mr Hashemi attended for a consultation, again complaining of whole spine pain. Dr Sullivan considered that the “most recent MRI scan does not show any further pathology over and above that demonstrated previously”.[61] There was no justifiable cause to involve a spinal surgeon, as there would be nothing to decompress. Dr Sullivan recommended diagnostic blocks of the posterior column elements, medial branch blocks of the nerves along the spine and radiofrequency treatment. A referral to Dr Rahcel Teo, rehabilitation physician, was also provided;[62]
(c) in September 2020, Dr Sullivan reported that the MRI scan of the cervical spine undertaken on 17 January 2020 noted no significant structural change or neural impingement. Dr Sullivan also referred to an MRI scan of the axial spine performed on 7 August 2018, which was said to demonstrate a mild posterior disc extrusion and multilevel facet joint arthropathy between L3-4 and L5-S1. The diagnosis was chronic pain affecting the axial spine with central sensitisation and aggravation of cervical, thoracic and lumbar spondylosis. In particular, Dr Sullivan reported that the chronic axial pain was associated with central sensitisation, which was a wholly-organic neurophysiological maladaptation resulting in amplification of pain and persistence of pain.[63] Dr Sullivan reported that Mr Hashemi’s pain was moderately severe at rest and tended to be exacerbated with fairly trivial activities. Dr Sullivan concluded Mr Hashemi could not return to work and will remain unable to find settled and gainful employment now or into the foreseeable future;[64]
(d) Dr Sullivan noted that as at August 2020, Mr Hashemi had not taken up the recommended diagnostic interventional procedures[65] and referred him to Dr Ali Kian Mehr, who subsequently advised that Mr Hashemi was not a suitable candidate for a pain management program;
(e) in September 2021, Dr Sullivan reported there was no current or likely future need for him to provide interventions to Mr Hashemi and that Dr Mehr was better placed to coordinate his rehabilitation.[66]
[59]29 October 2018, PACB 87; 18 November 2019, PACB 89; 18 February 2020, PACB 90; 8 September 2020, PACB 91 and 2 September 2021, PACB 96
[60]PACB 89
[61]PACB 90
[62]PACB 90
[63]PACB 93
[64]PACB 94
[65]PACB 93
[66]PACB 96
Dr Ali Kian Mehr, rehabilitation medicine and neurophysiology
78Dr Mehr treated Mr Hashemi between November 2020 and August 2023. As at May 2023, he reported he had not seen Mr Hashemi for one year.
79Dr Mehr noted a history that Mr Hashemi started having neck pain sometime after the 2017 transport accident. He also had pins and needles and a constant stabbing pain in the lower neck, and upper thoracic and lower lumbar region. Gradually, the pain from the neck moved downward, affecting the whole spine. It was aggravated by prolonged sitting and walking and relieved by lying down and resting. Later, pain caused pins and needles in his hands. Although he denied issues with the bowel and bladder, he had some episodes of bladder incontinence, and for that he usually wore an incontinence pad when he went out.
80On examination, Dr Mehr noted the range of motion of the lumbar spine was normal. There was tenderness in the midline cervical spine, lumbar spine and upper thoracic spine, and there were trigger points in these areas. Neurological examination was normal and there was no upper motor neuron sign or long track sign.
81Dr Mehr reported on a range of multilevel spondylitic changes, including the cervical area, with a disc protrusion at C6-7 and intervertebral disc height with endplate changes at T11-12, with facet arthropathy at L3-4, L4-5 and L5-S1.[67] This report did not refer to any specific imaging, but Dr Mehr’s subsequent report referred to an MRI scan on 7 August 2018.
[67]PACB 76
82Dr Mehr diagnosed chronic pain, including aggravation of spinal spondylosis in the cervical and lumbar spine, both of which were said to have been caused by the 2017 transport accident because they occurred afterwards and he did not have pain in that area prior to the accident.[68]
[68]PACB 78-80
83On 28 August 2023, Dr Mehr’s report noted a further MRI scan of the whole spine performed on 17 January 2020, which demonstrated no abnormality.[69]
[69]PACB 79
84There had been five consultations with Mr Hashemi,[70] who was reported as saying that he was unable to participate in any pain management program due to social anxiety.
[70]On 17 November 2020, 15 January 2021, 11 August 2021, 8 March 2022, and 10 May 2023
85Mr Hashemi complained of resting pain at around 8/10, aggravated with activity, and general body pain, which started at night and early in the morning. This happened three times a week on average and he needed medication. He was deemed unsuitable for a pain management program.
86On examination, Dr Mehr again noted the range of motion of the lumbar spine was normal, this time without tenderness. Along the length of the spine, there were trigger points in the midline and paraspinal area. Neurological examination of the upper limbs and lower limbs did not show any neurological deficit.
87Dr Mehr again diagnosed a chronic pain condition in three locations of the spine, which he considered was a direct impact of the car accident. The prognosis for this condition was poor due to its chronicity. Mr Hasemi had no capacity for any work due to the condition, which was unlikely to change in the foreseeable future.[71]
[71]PACB 84
Dr Samuel Hunter, chiropractor
88On 6 September 2021, Dr Hunter certified that Mr Hashemi had been to see him for therapy on 27 July 2021. Dr Hunter noted the multilevel spondylitic changes demonstrated on an unspecified investigation and confirmed Mr Hashemi had complained of pain and had associated muscle spasms and trigger points. The recommended therapy would take a few months.[72] No other report from Mr Hunter was tendered.
Psychiatric and psychological condition
[72]PACB 187
Dr Junaid Tanveer, general practitioner, First Point Medical Centre Corio
89On 18 and 26 June 2014, Dr Tanveer referred Mr Hashemi to Jigsaw Youth Mental Health, Drug and Alcohol Service (“Jigsaw Youth Mental Health”) and to a worker at Barwon Health. The reason for the referrals was for opinion and management of Mr Hashemi’s depression, anxiety and psychosocial stressors. He was having issues with anger management and it was affecting his learning capability at school. During consultations with a psychologist, he had expressed thoughts of self-harm. He was taking Lexapro, 20 milligrams daily and Mirtazapine, 15 milligrams at night.[73]
[73]PACB 97-98
90On 17 July 2014, Jigsaw Youth Mental Health reported to Dr Tanveer. The report referred to the multiple charges in relation to stalking behaviour and his expulsion from school. There was suicidal ideation and an attempted hanging, which had been interrupted by Mr Hashemi’s parents. Mr Hashemi is recorded as saying that his former partner had fabricated stories, leading to him getting in trouble with the law. The writer considered the prospect of the criminal charges was affecting Mr Hashemi’s mood, but that he had no psychiatric disorder. Mr Hashemi reportedly ceased taking the previously prescribed antidepressant medication, as it was having little effect.[74]
[74]PACB 99-100
Dr Youn Khozouei, treating psychiatrist
91As set out in the introduction, on 24 April 2015, Dr Khozouei diagnosed major depression with features of PTSD and possibly the prodromal phase of psychosis. He prescribed Fluoxetine, Olanzapine, psychotherapy and regular appointments.[75]
[75]DCB 6-7
92On 26 August 2017, Dr Khozouei reported to Mr Hashemi’s doctor that he had been feeling and functioning well, but had been very worried about his citizenship situation. His application had been refused due to his imprisonment and he was afraid of deportation. His mood has deteriorated, with some feelings of helplessness and hopelessness, but no suicidal ideation. He was also worried about any financial ramification of his non-citizenship status regarding his university education.[76]
[76]DCB 9
93On 4 October 2018, Dr Khozouei reported that, on assessment that day, Mr Hashemi had been feeling and functioning well and had no concerns regarding his mental health, but remained concerned about his Australian citizenship. He was continuing his university degree and hoping to finish in June 2019, and “[h]e appears relaxed and happy. His speech is coherent and logical”.[77] There was no evidence of any perceptual disorder or any morbid thoughts. His Fluoxetine was reduced from 40 milligrams to 20 milligrams and he was not on any other psychotropic medications.
[77]DCB 10
94On 25 September 2020, Dr Khozouei reported to “whom it may concern” that he first assessed Mr Hashemi on 24 April 2015 and diagnosed him with Major Depression with features of post traumatic stress disorder.
“It is gratifying that, as a result of psychiatric treatment and psychotherapy [Mr Hashemi] had changed to a more mature, reflective, balanced and law abiding responsible man who is very remorseful for his past mistakes….
[Mr Hashemi] has remained emotionally and psychologically well and has not required further treatment since October 2017… “[78]
[78]PACB 34-35
Dr Geoffrey Hogan, treating psychiatrist
95Dr Hogan provided a number of reports regarding his treatment of Mr Hashemi. He first assessed Mr Hashemi on 23 August 2017 (three months after the subject accident).[79]
[79]PACB 115
96On 10 September 2017, Dr Hogan reported that Mr Hashemi presented with a major depressive disorder and PTSD. He had been involved in two transport accidents, one in April 2014, in which “[h]is mother was severely injured and at one point expected to die”.[80] He later had another accident in which he was struck from behind. As a result of both accidents, he suffered chronic spinal pain and a major depressive disorder, with fear of driving, nightmares related to motor vehicle accidents and flashbacks.
[80]DCB 113-114
97On 18 February 2018, Dr Hogan wrote to the Registrar of the Faculty of Arts at Swinburne University. His report was in very similar terms to the report dated 10 September 2017. The Major Depressive Disorder included symptoms of low energy and interest, and impaired concentration, impeding Mr Hashemi’s capacity to study. However Mr Hashemi was showing a satisfactory response to the prescribed antidepressant regime and was seeing a psychologist for counselling, and it was likely Mr Hashemi’s impairment for study would markedly diminish in the future. Dr Hogan recommended a sympathetic approach to Mt Hashemi’s standing at the university and his failure of several units.[81]
[81]DCB 220-221
98On 20 May 2018, Dr Hogan reported to Mr Hashemi’s lawyers. The report provided the history of the criminal charges and the depression arising from his mother’s accident in 2014.
99Dr Hogan reported that Mr Hashemi had suffered a major depressive disorder with post-traumatic features, including nightmares and flashbacks, since the April 2014 accident. Particularly, since that accident, he had become phobic as a car driver or passenger.
100Since the 2017 transport accident, Mr Hashemi had also reported spinal pain. Previously, he had been prescribed Fluoxetine, 50 milligrams and Olanzapine, 2.5 milligrams a day to treat major depressive disorder and PTSD.
101Over the course of treatment, some modest improvements in mood had been reported by Mr Hashemi. He had also been able to commence driving his car, albeit cautiously. Dr Hogan had initially increased his Fluoxetine to 60 milligrams daily and prescribed Olanzapine, 10 milligrams a night. He noted that, in October 2017, Mr Hashemi had self-increased his dose of Olanzapine to 20 milligrams a night. Dr Hogan recommended ongoing psychiatric treatment.[82]
[82]PACB 121-122
102On 23 June 2019, Dr Hogan reported to general practitioner, Dr Claire Sheeran, that he was no longer willing to treat Mr Hashemi because he had made a complaint about him to St John of God Hospital “concerning my unwillingness to provide certificates indicating an unfitness to work for a very prolonged period”.[83]
[83]DCB 223. See also paragraphs 170-177
Dr Ehsan Rahimikia, consultant psychiatrist
103On 2 September 2023, Dr Rahimikia reported he had been treating Mr Hashemi since 23 October 2020 and last reviewed him on 30 August 2023.
104Dr Rahimikia recorded a history that, prior to the 2017 transport accident, Mr Hashemi was not suffering from any major psychiatric disorder, but that needed to be verified with other sources. The diagnosis was major depressive disorder (moderate in severity) and PTSD. The relevant symptoms recorded by Dr Rahimikia were occasional flashbacks of the accident during the day, especially when in the car; anxiety being triggered when sitting in the car and some major panic attacks associated with severe palpitations, which included presentation to an Emergency Department in 2020, because he was worried about his heart.
105Dr Rahimikia considered Mr Hashemi was unfit to work due to his persistent depressive and anxiety symptoms of low mood, low motivation, hopelessness and insomnia. These symptoms continued, despite the relatively-high doses of multiple psychotropic medications.[84]
[84]PACB 180-181
Angelique Park, treating psychologist
106Ms Park has been providing monthly counselling to Mr Hashemi since 6 April 2018. Ms Park provided a number of reports to Mr Hashemi’s lawyers,[85] detailing the histories provided to her, the treatment she provided and her opinion regarding diagnosis.
[85]15 June 2017, PACB 150; 2 December 2019, PACB 153, 24 August 2020, PACB 155; 11 October 2021, PACB 159, undated but with the year 2023 appearing in the footer, PACB 162
107Ms Park recorded the following histories:
(a) following the 2017 transport accident, he began treatment with a pain management specialist and was later referred to a psychiatrist, Dr Hogan, who diagnosed PTSD and prescribed Fluoxetine and Olanzapine;
(b) he was anxious after the accident and unable to drive for around twelve months afterwards;
(c) he failed eight units at university in 2017 and was repeating those. Prior to the accident, he was attaining a distinction average at university. He related his poor performance to problems with concentration, motivation and his nightmares and daytime flashbacks after the accident;
(d) in the accident, he experienced shock and thought he would die. He experiences vivid nightmares and is now an anxious driver;[86]
(e) in August 2020, Mr Hashemi had been attending a psychiatrist, Dr Macmillan, for the past ten months;[87]
(f) the psychiatric injuries Mr Hashemi sustained were a direct result of the 2017 transport accident because he provided no significant prior medical history.[88]
[86]PACB 150
[87]PACB 157
[88]Ibid
108In October 2021, for the first time, Ms Park recorded a history that Mr Hashemi had problems arising from his relationship with a fellow student. She made false statements, accused him of abusive behaviours, and he was placed on an intervention order that ended in 2016. He felt very anxious and depressed about the situation and commenced treatment with a psychiatrist, but once the court process was completed he quickly recovered and was able to manage two part-time jobs, as well as university study, during the next couple of years.[89]
[89]PACB 159
109In her undated report,[90] Ms Park again referred to the troubled relationship he had with a fellow student and recorded Mr Hashemi as having advised her that his lawyer at the time told him not to tell her (Ms Park) about the student and he was unsure of the reason.[91] Ms Park confirmed she was not aware of any previous mental health issues or diagnoses prior to her treatment. Further, she was not made aware of any serious criminal matters, or any other serious personal matters, other than immigrating to Australia as a refugee.
[90]Likely written in 2023, as the footer of the report contains the year 2023, PACB 162
[91]PACB 162
110Ms Park again confirmed she agreed with the diagnosis of PTSD, based on the reports of vivid nightmares, flashbacks and sleeplessness. Ms Park considered Mr Hashemi had not completed his university degree and no longer keeps fit, socialises or travels alone. Based on that history and presentation, Ms Park considered Mr Hashemi was unable to work and was a poor candidate for suitable employment or retraining.[92]
Mr Hashemi’s medico-legal reports
[92]PACB 163-164
Dr Nicholas Ingram, consultant psychiatrist
111On 24 August 2018, Dr Ingram reported that Mr Hashemi had been involved in a transport accident on 31 May 2017 and although he had no pain at the time, a few hours later he developed significant pain in his neck and upper back and was seen by his local doctor. At the time of the accident, Mr Hashemi had been in his second year of politics and international relations at Swinburne University, and up until the accident he had been a good student and had passed all of his exams.
112His main psychological problem was that he had been depressed. He had lost motivation, and although he could sleep well on Olanzapine, he still had nightly nightmares about his own accident or other accidents. He had been having flashbacks and other episodes during the week. When anxious, he had palpitations, sweats and tremors. The Fluoxetine provided by Dr Hogan had led to a slight improvement after he increased the dose from four to five tablets a day.
113Dr Ingram observed that the accident had been relatively minor, but Mr Hashemi was having significant psychological problems. There appeared to be no obvious reason why Mr Hashemi would have such a severe reaction, except perhaps the impact had been a shock to him.
114Dr Ingram considered it significant Mr Hashemi was now failing most of his units, rather than passing them as before the accident, and considered that if he did try to work he would have difficulty, because of the problems with his motivation, concentration and energy levels.[93]
[93]PACB 127
115On 10 May 2019, Dr Ingram reported that Mr Hashemi had completed his year of university the previous year (2018), though he had been advised by his psychiatrist not to return this year (2019), as his medication was being changed and it was felt he might be better off not studying. He had, accordingly, taken a year off study and was not working. The report records a history that Mr Hashemi did not know why his depression had come on, but it started in the first few weeks following the accident and had continued unabated since then.[94]
[94]PACB 130-133
116Dr Ingram diagnosed a major depressive disorder causing a 10 per cent impairment, which was, in part, a direct consequence of the shock of the accident. In part, it was also attributable to the secondary consequence of his neck and back pain and limitations. He also had PTSD, which caused a 10 per cent primary psychiatric impairment. Dr Ingram again reported that it was hard to understand how such a relatively-minor accident has had such a big impact on Mr Hashemi, who, for whatever reason, was now severely depressed and has significant PTSD symptoms.[95]
[95]PACB 133
117On 5 November 2019, Dr Ingram reported that Mr Hashemi had been referred for a course of TMS, although this had not led to any improvement in his depression. He had been referred to two psychiatrists, Dr Vijay Kumar, and Dr Macmillan. The various medications prescribed by each psychiatrist had made no difference to his depression.[96]
[96]PACB 135
118Mr Hashemi continued to feel depressed almost all the time, had nightmares four times a week, had lost weight and his energy levels had been very low. His memory and concentration were poor. He felt very anxious and described panic attacks occurring two to three times a week.
119Unlike the history recorded in the first two reports, Dr Ingram now referred to a prior incident of depression in 2014, which Mr Hashemi is reported to have described as “mild” and associated with relationship problems. He had been prescribed Fluoxetine once a day, and his depression had improved after a couple of months.
120Dr Ingram again diagnosed major depressive disorder and PTSD, both attributable to the 2017 transport accident. The condition had not yet stabilised.
Dr Justin Lewis, consultant psychiatrist
121On 2 June 2022, Dr Lewis recorded a history that, prior to the 2017 transport accident, Mr Hashemi had been physically fit and active and enjoyed a range of social and recreational interests. He had not developed any longstanding medical or psychological difficulties consequent to the 2014 accident. Following the 2017 transport accident, Mr Hashemi developed high levels of anxiety and neck and back pain.
122Dr Lewis noted that Mr Hashemi was troubled by distressing and pre-occupying thoughts, disturbed sleep, high levels of anxiety, depressed mood and grieving the loss of his employment. Dr Lewis characterised all of these as transport-accident-related traumatisation features.
123He further reported Mr Hashemi had previously been embroiled in a number of legal disputes centring around a breach of an intervention order and had some psychological difficulties, for which he was prescribed Fluoxetine and Olanzapine, but all of these had resolved following the breakdown of the relationship. In particular, Dr Lewis noted Mr Hashemi had maintained he was not depressed at the time of the 2017 transport accident.
124Among the list of documents which had been enclosed with the referral, was a report of Dr Macmillan, dated 14 August 2020. That report is not in evidence.
125Dr Lewis considered a number of other medical reports of Ms Park, Dr Sullivan, Dr Ingram and Dr Hogan.[97] The diagnosis of the psychological injuries suffered as a result of the 2017 transport accident was PTSD directly consequent on that accident, with a secondary major depressive disorder consequent on the PTSD condition. Mr Hashemi was completely incapacitated for all employment as a result of his psychiatric conditions. This incapacity was likely to continue for the foreseeable future.[98]
The TAC’s medico-legal reports
[97]PACB 165
[98]PACB 177-178
Dr Brendan Hayman, consultant psychiatrist
126Dr Hayman provided two reports to the TAC, the first dated 28 July 2021 and the second dated 21 September 2023.
127In his first report, Dr Hayman noted a history of the 2014 and 2017 transport accidents. In 2014, Mr Hashemi was a VCE student. He was not injured in the 2014 accident and went on to complete his VCE. In 2017, Mr Hashemi was working two part-time jobs and attending at university. Following the 2017 transport accident, he failed seven of eight subjects and dropped out in 2020. Immediately prior to the 2017 transport accident, he had no clear psychological issues.[99]
[99]DCB 14-15
128Mr Hashemi is noted to have presented to the interview in his pyjamas. When asked why, he is recorded to have said “why should I get dressed when I’m living dead… when I have no hope”.[100]
[100]DCB 17
129Mr Hashemi was fearful in cars and on occasion urinated himself. He now wore nappies and showed Dr Hayman the nappy he was wearing underneath his pyjamas.
130Dr Hayman provided the following opinion:
“If taken at face value, Mr Hashemi has developed significant psychological sequelae consequent to Accident 2. He denied any issues following Accident 1. He described flashbacks, nightmares, anxiety and avoidance behaviour ever since Accident 2. He notably has engaged with four different psychiatrists over time which is troubling in itself. He has apparently been trialled on at least 13 different psychotropic medications, had a course of TMS and an aborted trial of ECT. This is an unusual picture. One generally does not see this many different clinicians, nor being trialled on so many different biological and psychological treatments with little if any benefit. This is also interesting in light of the inconsistencies noted.
It does appear that Mr Hashemi has ailed psychologically but this appears to occur on a background of significant prior issues and in particular, personality dysfunction … .
If taken at face value, he has developed a Post Traumatic Stress Disorder and a Major Depressive Disorder consequent on Accident 2. However, one does have to question the veracity of the account and the severity of the symptoms thereof. However, I have no other surveillance video, etc. to question otherwise. By his account, he leads a circumscribed life and is greatly affected. I suspect this is greatly coloured by premorbid personality factors.”[101]
[101]DCB 25-26
131In his second report, Dr Hayman reported on developments since his first report. These included a history that Mr Hashemi had travelled overseas in November 2022 for four months, and his current medication regime was Dothep, 75 milligrams; Seroquel, 200 milligrams three times daily; Fluoxetine, 20 milligrams twice daily; Diazepam, 5 milligrams three times daily and Circadin at night.
132Dr Hayman noted Mr Hashemi gave a very evocative and animated account of his current state, which referred to the trauma of the accident being never-ending. He had lost his model appearance and he wished he was mentally well. He continued to drive, but only short distances. He had recently been treated with monthly injections of Taltz for his psoriasis.
133Dr Hayman reported, if taken at face value, there remained ongoing symptoms of PTSD and a major depressive disorder. However, there was a very animated quality to his presentation and the veracity of his account was questionable.[102]
[102]DCB 34
134Significantly, Dr Hayman considered there was a possibility Mr Hashemi’s symptoms were somewhat exaggerated or feigned. The other possibility was a more unconscious over identification in the sick role, given his premorbid personality issues. Regardless, there appeared to be a significant investment in this regressed position. This was likely perpetuated by the current ongoing medico-legal process and his upcoming appearance before the courts.[103]
[103]DCB 35
Issues and submissions
The TAC’s submissions
135Senior Counsel for the TAC submitted that:
(a) there was cogent and reliable evidence that Mr Hashemi was suffering from a psychiatric condition of some severity prior to the 2017 transport accident. That was associated with a range of significant stressors and traumas in his life. The post-accident psychiatric specialists did not receive an accurate history of these matters and their opinions on the severity and causation of Mr Hashemi’s psychiatric condition were therefore significantly compromised;
(b) there was a significant internal inconsistency in the evidence from the pre-accident and the post-accident treating psychiatrists. At the same, Mr Hashemi presented to two different psychiatrists in a dramatically different way. He was able to do that, as he could manipulate his symptoms and the histories he provided in accordance with what he perceived was relevant and significant at any given time;
(c) Mr Hashemi has deposed to a range of consequences as a result of the 2017 transport accident which are either inaccurate or properly attributable to other matters. There are numerous internal inconsistencies in his evidence which have not been adequately explained.
Mr Hashemi’s submissions
136Counsel for Mr Hashemi submitted that:
(a) Mr Hashemi’s prior criminal history and subsequent failure to accurately declare his income to the taxation office should not be held against him, as he was only eighteen years old when the criminal offences were committed and he had sought to regularise the taxation matter;
(b) while Mr Hashemi might have had a prior psychiatric condition, that was substantially resolved by April 2017, when Dr Khozouei wrote to the Department of Immigration on his behalf;
(c) prior to the 2017 transport accident, Mr Hashemi was working two part-time jobs, completing his CCO, doing additional training at TAFE and volunteering. After the 2017 transport accident, he was unable to return to that same level of activity and had been prescribed increased dosages of psychiatric medications;
(d) Mr Hashemi was not challenged in relation to any of his alleged physical pain and suffering consequences, his family members who gave supporting affidavits were not cross-examined and the Court ought to accept his account about those consequences.
Analysis
Mr Hashemi’s credit or reliability
137In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
138The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[104]
[104]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 per Brooking JA; Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
139Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
140Despite the significance of credit in applications of this type, the Court must nevertheless take into account the circumstances of the 2017 transport accident, cogent and reliable medical evidence, evidence as to the plaintiff’s condition prior to and after the accident, and objective evidence, such as diagnostic testing.[105]
[105] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
141I accept the submissions made on behalf of Mr Hashemi that his prior convictions were all recorded at a time when he was a young offender (eighteen to nineteen years old) for offences committed when he was eighteen years old.[106]
[106] T273
142I accept that the offences relate, in part, to a traumatic relationship breakdown at a significant time in the life of a teenager, especially one who was raised in a very different culture, in Iran.
143I also accept that the cultural differences meant he needed assistance to recognise appropriate Australian cultural norms for acceptable behaviours when interacting with women. Mr Hashemi eventually successfully completed his CCO and was credited with extremely polite and appropriate behaviour during his participation.[107] He completed a men’s behaviour change program as part of the CCO and I accept his evidence that this placed him in a position to understand the Australian cultural norms about women.[108] I make no adverse findings against Mr Hashemi consequent on the criminal convictions.
[107] PACB 197
[108] T109
144I accept that English is not Mr Hashemi’s first language and he may not have been familiar with the taxation system at the time he lodged the tax return, which he admitted had significantly under-declared his income. I make no adverse findings against him on account of the failure to declare income properly.
145I also accept that his less-than-perfect English language skills may have had an impact on how his evidence was delivered and whether he fully understood the questions being asked of him. His psychiatric condition might also have played a part in how his evidence was given.
146While there was an interpreter present at court, Mr Hashemi gave his evidence in English, swore his affidavits without the assistance of an interpreter and has managed to complete a double major in arts at Swinburne University. Nevertheless, during his evidence, it was necessary for the Court to intervene on some occasions to ensure he understood the question being asked or gave answers which were responsive to those questions.
147Taking into account all of these matters, and where possible, giving Mr Hashemi the benefit of the doubt, I nevertheless formed an unfavourable impression of Mr Hashemi’s reliability for a number of other reasons which were directly related to the issues in the application.
Inconsistency in presentation to Dr Khozouei and Dr Hogan
148On 11 August 2017, Dr Khozouei wrote a progress note of his assessment of Mr Hashemi, partially in the Farsi language and partially in the English language. The English portion of the note includes the following:
“settled / anxious about his residential situation but other wise (sic) euthymic and reactive. Coherent/relevant speech/ no FTD/no psychotic features no helplessness no suicidal ideation, no changes to his meds”[109]
[109]DCB 210
149Dr Khozouei’s September 2020 report confirmed that from October 2017, Mr Hashemi had been psychologically well and required no further treatment.
150In his third affidavit, Mr Hashemi exhibited that report and deposed that as a result of it,
“I understood I had fully recovered from my previous depression and post traumatic stress symptoms.”[110]
[110]PACB 25 [6]
151On 23 August 2017, Dr Hogan first assessed Mr Hashemi. In his 10 September 2017 report, Dr Hogan noted Mr Hashemi had been depressed since 2014, with worsening symptoms, and that the depression was impacting his academic performance. He diagnosed major depression and PTSD and increased his medications – Fluoxetine, 60 milligrams daily and Seroquel, starting at 25 milligrams at night.[111]
[111]DCB 218-219
152On 22 February 2018, Dr Khozouei’s progress notes included the following:
“settled/relaxed …
no F.T.D / no psychotic features/no morbid thoughts/no hopelessness, very positive & happy with his life.
He remains on Fluoxetine 40mg / day”[112]
[112]DCB 211
153On 20 May 2018, Dr Hogan reported he had assessed Mr Hashemi on 13 February 2018 and 6 April 2018, stating that Mr Hashemi:
“… described recent affective symptomatology of initial insomnia … broken sleep … nightmares … appetite was poor and there had been significant weight loss … tired throughout the day … At crowded places such as the shops he experienced panic symptoms, with fear, sweating and palpitations … He described quite clear flashbacks related to the original motor vehicle accident ... He said he was constantly depressed in mood with evening worsening, crying each night, but not current suicidal thoughts, although there have been such two years ago.”[113]
[113]PACB 119
154The apparent inconsistency in the presentation to the two psychiatrists (twelve days apart in August 2017 and 9 days apart in February 2018) was put to Mr Hashemi. He accepted he had presented to Dr Hogan as described by him in his September 2017 report.[114] He also accepted he had presented to Dr Khozouei on 11 August 2017 with concerns about his immigration status and had said nothing about the 2017 transport accident and at that time, “[e]verything was fine” and, “the symptoms were … non-existent”.[115]
[114]T75-76
[115]T76
155When asked to explain the inconsistency, Mr Hashemi said he had informed Dr Khozouei about the 2017 transport accident, but Dr Khozouei was not interested in TAC matters and was only asking him about his immigration matters and the prior mental health issues. Mr Hashemi agreed the reason he presented as being well was because he wanted the doctor to ‘stay on board’ with the immigration application.[116].
[116]T76-77
156In re-examination, Mr Hashemi said he had been seeing two psychiatrists because Dr Khozouei (who was in Geelong) “told me I have to come … about … the problems with the Australian citizenship”[117] and he was seeing Dr Hogan, who was closer to his home in Dandenong.
[117]T157
157Senior Counsel for the TAC submitted the inconsistency was significant to the Court’s assessment of the alleged severity of Mr Hashemi’s condition, as described by Dr Hogan in September 2017. While it may have been possible to “fake bad”, it was not possible to “fake good” to a psychiatrist who had been treating Mr Hashemi for a number of years.
158I accept that submission. I found Mr Hashemi’s evidence troubling. Doubtless, a person with a psychiatric condition could present with variations in mood over time. However, I have difficulty accepting that Dr Khozouei (who speaks Mr Hashemi’s language) could record that he is well and happy with his life in February 2018, while over the same time period, he was presenting to Dr Hogan with a history of crying every night, and suffering nightmares, flashbacks and panic symptoms.
159The explanation provided by Mr Hashemi, that he presented in that way because he wanted Dr Khozouei to be ‘on board’ with his citizenship issue, was also troubling. I accept the submission made on behalf of the TAC that the evidence disclosed an ability to manipulate a situation in accordance with his needs.
160This is further illustrated by a comparison of the reports of Dr Kan and Ms Park.
161In October 2016, (six months prior to the subject accident) Dr Kan reported that Mr Hashemi was experiencing academic difficulties related to his history of depression.
162In relation to the same period, Ms Park reported that Mr Hashemi was attaining a distinction average. The academic transcript shows that prior to the accident, Mr Hashemi failed two units and received no distinctions at all.
163I consider these matters negatively impacted Mr Hashemi’s reliability, in particular, in relation to histories provided to doctors about his symptoms.
Prior criminal history
164In his third affidavit, Mr Hashemi accepted that the histories recorded by his treating doctors about his forensic involvement were not accurate. He provided an explanation that he remains embarrassed about the charges and his conduct and deposed he may have minimised his involvement in the offending because of the embarrassment.
165I accept he was embarrassed by his actions and this may be an explanation for his failure to tell Ms Park about the criminal charges. However, that explanation is not supported by Ms Park’s reports. The fourth report briefly refers to intervention orders and false statements, but not to the charges. The fifth report provides an explanation for having failed to disclose the issue about the relationship earlier as “his lawyer … told him not to tell me about [the student], but reported he was unsure why.”[118]
[118]PACB 162
166By the time the fifth report was written,[119] Ms Park had been his psychologist for five years. Dr Hayman recorded that Mr Hashemi considered Ms Park to be “like a good friend”.[120]
[119]The report is undated but the footer contains the year “2023”. Ms Park’s other reports, all contain the year the report was written in the footer.
[120]DCB 29
167If “embarrassment” about the matters was the reason he failed to disclose them, there is no explanation for Mr Hashemi’s failure to provide that reason when he eventually disclosed those matters, instead providing an explanation to Ms Park implicating his legal advice. It is improbable that his lawyer advised him to withhold that information from Ms Park.
168Mr Hashemi’s third affidavit suggests he had in fact disclosed his past history to Ms Park.[121] However, despite the alleged disclosure, Ms Park’s reports still lack the history of the criminal charges, the problems with his Australian citizenship and the true position regarding his academic performance.
[121]PACB 25 at paragraph [8]
169I consider the failure to disclose a full history to Ms Park and deposing to having done so, impact negatively on Mr Hashemi’s reliability and on the reliability of Ms Park’s opinion.
Reason for ceasing treatment with Dr Hogan
170In his second affidavit, Mr Hashemi deposed that “[d]ue to the severity of my condition, Dr. Geoffrey Hogan referred my file for a second opinion [to Dr Kumar]”.[122]
[122] PACB 15 at paragraph [34]
171He was cross-examined about a similar history recorded by Dr Hayman.[123] Mr Hashemi said “[h]e was asking me to see another doctor which after that I have seen two month (sic) doctors”.[124]
[123] DCB 17 and T113
[124] T113
172I am unable to accept this explanation, as it was unsupported by the contemporaneous records of treating GP Dr Sheeran and by Dr Hogan’s report.
173On 13 June 2019, Dr Sheeran recorded the following history:
“Dr. Geoff Hogan (psychiatrist) called re: patient asking for backdated TAC certificates was asking re: history
Explaine dthat 2 doctors here (Dr. Anita and Dr. Martin Hall) refused to backdate
psychiatrist said there was a period of 6-12 months pt was fine after TAC he will refuse certificate also”[125]
(sic)
[125] DCB 216-217
174On 23 June 2019, Dr Geoffrey Hogan reported to Dr Sheeran that:
“… In the latter part of last year, he was on a regime of Lovan 100mg and Zyprexa 20mg daily. He was at one point doing very well and described himself as back to near-normal.
Thereafter in the latter part of last year he indicated a marked diminution in wellbeing. There was no clear precipitating factor. At that point he was insufficiently well to continue his full-time university studies. I then filled out TAC Certificates indicating his inability to work. I altered his antidepressant regime.
Since that point in time there has been improvement.
There has also been since that point complaints about not being provided with TAC Certificates for a lengthy period, despite his having been able to attend full-time university studies. I understand there have been legal threats made to your practice. I have sought legal advice. There has been a recent complaint at St John of God Healthcare concerning my unwillingness to provide certificates indicating an unfitness to work for a very prolonged period.
Given Mr Hashemi’s dissatisfaction with my decisions, I would recommend that he should be referred to another psychiatrist for ongoing care.”[126]
[126] DCB 222-223
175When faced with Dr Hogan’s letter, Mr Hashemi admitted he had made a complaint about Dr Hogan, and for that reason Dr Hogan did not want to go on treating him.[127]
[127] T114 ꟷ T115
176I find this evidence to be inconsistent with the tenor of the second affidavit, which created an impression that Dr Hogan had referred him on due to the severity of his condition. Looking at Dr Hogan’s report, the condition was neither severe, nor was it the reason for the referral to another psychiatrist.
177I consider the second affidavit was misleading. In it, Mr Hashemi sought to underscore the severity of his transport-accident-related psychiatric condition in a way that was not consistent with the facts established by the contemporaneous evidence.
Impact of the 2017 transport accident on Mr Hashemi’s academic performance
178Mr Hashemi deposed that his ability to concentrate and retain information was impaired after the accident, that he failed units in that year, and although he was eventually able to complete his studies, it took longer than it should have and he performed poorly due to the mental injuries which are the subject of this claim.[128]
[128] PACB 15 at paragraph [31]
179This account is inconsistent with the academic transcript and with the histories recorded by various experts.
180The academic transcript shows that, in 2017, Mr Hashemi failed four units in Semester 2. The 2017 transport accident happened during that semester. However, thereafter, his grades were better than they had been prior to the accident.
181Ms Park, Dr Ingram and Dr Hayman all recorded histories that, prior to the accident, Mr Hashemi was doing very well and afterwards, due to problems with concentration, he was either repeating units and then failed to complete his degree,[129] or had taken a year off to have his medications changed,[130] or had dropped out completely.[131]
[129] PACB 150, 163
[130] PACB 130
[131] DCB 15
182At the end of the cross-examination, the Court asked Mr Hashemi whether, in July 2019, he provided a history to IPAR that his return to studies that semester was awaiting approval by his psychiatrist. He initially agreed with that, however when it was pointed out to him that by this stage, he had completed his degree, Mr Hashemi said the history was about a law degree which he had not been allowed to do. Later, he said everyone and the TAC “was fully aware that I had completed my … degree in 2019”.[132]
[132] T151
183I do not accept Mr Hashemi gave accurate histories to doctors, or to the Court, about the impact of the 2017 transport accident on his academic performance.
Driving
184Mr Hashemi deposed that, following the 2017 transport accident, he has been very anxious and stressed when driving due to flashbacks, he had driven a lot less, he drove only in his local area and drove very slowly. In particular, Mr Hashemi deposed he drives below the speed limit, which angers other drivers around him.[133]
[133] PACB16 at paragraph [38] and PACB 20 at paragraph [7]
185The TAC tendered various driver-licence searches relevant to Mr Hashemi. Those documents included speeding fines, licence cancellations, vehicle registrations and addresses provided by Mr Hashemi to the licensing authority. Mr Hashemi was asked about suspensions on his licence in June 2019, September 2019 and December 2021 for incurring demerit points.[134]
[134] DCB 75 and T140
186The suspensions arose from speeding offences.
187On 27 June 2019, a speeding offence was committed in New South Wales of exceeding the speed limit by 45 kilometres or more.[135]
[135] DCB 78
188On 12 September 2019, a speeding offence was committed in Victoria of exceeding the limit by less than ten kilometres.[136]
[136] DCB 77
189There were two offences on 31 December 2021, one committed in Victoria (exceed the limit by less than 10 kilometres) and another in New South Wales (exceed the speed limit between 16 and 29 kilometres) in different vehicles.[137]
[137] DCB 76-77
190Mr Hashemi said sometimes his family drove his car. He was asked whether it was his evidence that he was not driving at any time during the commission of those offences. He said “I do not say on no occasion. It might have been an occasion … but I cannot say that all of those … are me”.[138]
[138] T141
191After the close of evidence, Mr Hashemi was given leave to provide driver nominations in relation to the offences put to him. Those documents, although not in the prescribed form, appear to support his evidence that his family drove his car.[139]
[139]During his closing address, counsel for Mr Hashemi tendered an online enquiry form completed by him, accompanied by a handwritten note and driver’s licence for his father – Exhibit P3. The message includes the following “[m]y father drove my vehicle since I had been away for a while … On January1, 2023, he was responsible for the fine that resulted in license suspension. This was after returning home from the city after the celebration of the New Year ….” Exhibit P3 ꟷ Statutory Declaration of Amir Hossein Hashemi dated 21 March 2022 about “my brother’s suspension in 2021”
192However, despite that possibility, I consider Mr Hashemi’s admission that he committed at least some of the speeding offences is significant. It directly contradicts his affidavit, which painted a picture of a slow, hesitant driver who drives under the speed limit.
Conclusion about Mr Hashemi’s reliability
193During the course of his evidence, I was able to observe Mr Hashemi in the witness box and to compare his answers to the contemporaneous material. I formed the impression that Mr Hashemi was an unimpressive witness. He initially maintained his position, as set out in his affidavit, or as put to him from the various histories. He made concessions only when faced with evidence to the contrary.
194I find much of his evidence about the 2017 transport accident and its impact on him, his studies, his treatment, and his ability to drive, unreliable. The inconsistency in his presentation to Dr Khozouei and Dr Hogan was troubling and his explanation for it also underscores his unreliability.
195I take into account Mr Hashemi’s psychiatric diagnosis and treatment with a range of psychoactive medications. These matters can all have an impact on his perception of events, or his ability to recall them to doctors, or in court.
196I make no findings that he was deliberately lying, but due to the combination of stressful events in his life and his condition and treatment, I am unable to rely on anything he said, either in court or to doctors, unless it is supported by objective evidence, or cogent medical opinion based on such evidence.
Did Mr Hashemi suffer an ongoing physical injury to his spine or any organic chronic pain condition caused by the 2017 transport accident?
197On 31 May 2017, Mr Hashemi was stationary at a red light when another vehicle collided with his vehicle from the rear. His vehicle was pushed into the truck in front. Mr Hashemi drove himself home from the scene of the accident.
198He did not attend upon a medical practitioner in respect of the accident-related injuries for over ten weeks after the accident. In the intervening period, on 7 July 2017, he attended his general practitioner for an unrelated medical condition and no complaints about any accident-related matters were recorded at that visit.
199In August 2017, a number of treating general practitioners examined him and ordered investigations. Dr Nesarajah considered the clinical examination was “unremarkable” and Dr Hill reported that the 2017 x-rays of the neck and thoracic spine and CT scan of the lumbosacral spine, were all reported as normal.
200Despite these findings, Mr Hashemi continued to complain to Dr Hill, who accepted the veracity of those complaints and referred him to various pain specialists for treatment.
201Dr Ahmad noted a history of a constant stabbing spinal pain and pins and needles. He recorded that Mr Hashemi was scared of needles and had had no treatment other than medications. On examination, his lumbar spine showed a normal range of movement and his cervical spine had a minimally-reduced range of movement. Provocative tests were all negative. Based on acceptance of the veracity of the pain complaints, Dr Ahmad diagnosed myofascial back pain and whiplash.
202Dr Sullivan noted histories of whole spine pain and considered two MRI scans of the spine. The first, dated 7 August 2018 showed a mild posterior disc extrusion and facet joint arthropathy at L3-4 and L5-S1. The second, dated 17 January 2020 showed no significant structural change or neural impingement.
203There is no discussion by Dr Sullivan addressing the inconsistent findings of the MRI scans taken about eighteen months apart. The conclusion, however, is that the scan undertaken in 2020 shows no abnormality. A more recent scan was not in evidence.
204Dr Sullivan accepted Mr Hashemi’s complaints of pain were genuine and diagnosed an organic pain sensitisation condition.
205Dr Sullivan recommended various diagnostic blocks and injections, which Mr Hashemi never undertook. The reason for this appears to be “needle phobia”.[140]
[140]PACB 87
206The needle phobia was not specifically explored in evidence. However, Mr Hashemi tendered two medical reports which confirm he had undergone Energix-B injections in 2014[141] and gave evidence that he had undergone three-weekly injections of Taltz, a medication for psoriasis which cleared up his skin and joint issue.[142]
[141]PACB 97-98
[142]T133
207No explanation was provided for the apparent inconsistency in the evidence tendered by Mr Hashemi between the past choice to have injections and the refusal to undergo recommended treatment for his transport-accident pains due to “needle phobia”.
208Dr Mehr also received a history of pain initially starting in the neck and moving down to the whole spine, with pins and needles. Neurological examination was normal and the range of motion in the spine was also normal.
209Dr Mehr did not order any investigations. Like Dr Sullivan, he noted the two MRI scans of the spine taken in 2018 and 2020 and reported that the 2020 investigations demonstrated no abnormality.
210Mr Hashemi complained of tenderness in areas of his spine. Dr Mehr accepted those complaints as genuine and diagnosed a chronic pain syndrome affecting those areas.
211Dr Thomas noted that there had been “40+ sessions” of physical therapy at Cranbourne. There is no report in evidence relating to those alleged therapies.
212On examination, Dr Thomas noted Mr Hashemi to have excellent general mobility with a full range of movement of the entire spine. On viewing the 2020 MRI scan for himself, Dr Thomas noted there was no abnormality detected. Dr Thomas diagnosed a myofascial pain syndrome relying on the veracity of the pain complaints.
213There is no explanation for Mr Hashemi’s failure to undergo the diagnostic blocks suggested by Dr Sullivan. The consequence of that failure is that there is no objective evidence of any diagnosable organic spinal injury or condition attributable to the 2017 transport accident.
214I reject the submissions made on behalf of Mr Hashemi that the 7 August 2018 MRI scan has a role to play in the Court’s assessment of his current physical condition. That investigation has been superseded by the 17 January 2020 repeat MRI scan, which all doctors agree shows no abnormality at all. I do not accept Dr Sullivan has “properly considered both reports”. While Dr Sullivan mentions both reports, he provides no basis upon which the Court can prefer the results of the imaging in 2018 to those of 2020.
215There has been ample opportunity for such a report to be obtained on behalf of Mr Hashemi between January 2020 and the date of hearing in May 2024. No other doctor has properly addressed the issue of the apparent discrepancy between the two reports.
216There is no available medical explanation for Mr Hashemi’s alleged inability to control his bladder and his need to wear an incontinence pad, and nothing to connect that feature of his presentation to the 2017 transport accident.
217The various diagnoses of chronic pain syndrome, myofascial pain syndrome and central sensitisation are all founded on acceptance of the veracity of Mr Hashemi’s pain complaints. None of these diagnoses have been made by a psychiatrist and the Court is asked to consider the chronic pain syndrome under subparagraph (a) of the definition. However there is no objective evidence such as diagnostic blocks or imaging to support the existence of a physical pain condition.
218For the reasons I have already set out, I do not accept, as reliable, the histories of pain and physical restriction provided by Mr Hashemi to the various doctors.
219Mr Hashemi has not discharged his onus of establishing, on the balance of probabilities, that he suffered any ongoing physical injury or physical chronic pain condition as a result of the 2017 transport accident.
220Consequent on this finding, is also a finding that Mr Hashemi has not established he suffers any pecuniary disadvantage on account of any physical injury.
What was Mr Hashemi’s psychiatric condition prior to the 2017 transport accident and is any aggravation of that condition “severe”?
221To the Immigration Department, Mr Hashemi attributed his time in Iran as causative of severe anxiety and depression.
222Five months after arriving in Australia, Mr Hashemi was treated with multiple sessions for post-traumatic stress symptoms and anger management after presenting with depression.
223Two years after arriving in Australia, he was embroiled in criminal offending and imprisoned, and as a consequence of those matters his Australian citizenship was refused. Mr Hashemi accepts that all of those matters were causative of psychiatric unwellness and the need for treatment from a range of specialists.
224The treatment records disclose a suicide attempt by hanging, a possible diagnosis of antisocial personality disorder, severe anxiety and depression, and treatment with a range of antidepressant medications.
225To compound those matters, according to Dr Hogan, the April 2014 transport accident had a significant impact on Mr Hashemi’s already parlous psychiatric state. He developed major depressive disorder with post-traumatic features, including nightmares, flashbacks and phobia associated with being a driver or passenger.
226In April 2015, after having been expelled from school, Mr Hashemi was completing various educational courses and presenting to Dr Khozouei in the prodromal phase of psychosis, with features of PTSD and depression. He was treated with antipsychotics and antidepressants.
227In 2016, Mr Hashemi enrolled at university and was completing his CCO.[143] He passed all his subjects in Semester 1. During this time, Mr Hashemi also regularly attended upon Dr Khozouei for treatment.
[143]The CCO was imposed on 12 February 2015 for eighteen months with 250 hours community work. The CCO was completed on 11 August 2016.
228Senior Counsel for the TAC conceded there had been some improvement in Mr Hashemi’s condition after Dr Khozouei’s treatment in 2015. However, it was submitted that was a temporary improvement. As at May 2017, Mr Hashemi had been affected by an ongoing psychiatric condition of some substance.[144]
[144]T198-199
229Counsel for Mr Hashemi made two submissions about the pre-accident psychiatric state of his client.
230First, that Mr Hashemi’s successful completion of the TAFE courses and the CCO shows a level of activity prior to the accident which is consistent with the picture painted by Dr Khozouei’s report dated April 2017.
231Second, that prior to the accident, Dr Khozouei had reduced Mr Hashemi’s medication whereas after the accident the medication had been increased by Dr Hogan[145].
[145]T243
232Dealing with the first submission, Dr Khozouei’s 2017 report does not contain a diagnosis and was written for the Immigration Department, commending Mr Hashemi for Australian citizenship. However it is clear from the September 2020 report, that Dr Khozouei was certifying that as at October 2017, Mr Hashemi was psychologically well and was not in need of treatment.
233At the time he was undertaking his courses (2015-2016), Mr Hashemi was focused on his Australian citizenship. His application had been rejected, as he had been in custody at the time he made it.
234Mr Hashemi’s statutory declaration to the Department of Immigration includes reference to his successful completion of the CCO, to his volunteer contributions to the Afghan community and a variety of supporting documents with certificates of completion of his studies.
235He said, in evidence, that his immigration situation was his primary concern due to fear of deportation.[146]
[146]T74
236I accept he was functioning sufficiently to complete the studies and to meet what he perceived to be the requirements of the Immigration Department for his citizenship. However, I do not accept he was well or recovered when he did so. Dr Khozouei noted a significantly-impaired psychiatric state in April 2015 while Mr Hashemi was completing his courses.
237I do not accept that Dr Khozouei provides any assistance in understanding Mr Hashemi’s psychiatric state as at April or October 2017 because of the way Mr Hashemi was presenting to Dr Hogan at that time.
238Dealing with the second submission, I do not accept that the reduction of medication by Dr Khozouei and the increase in medication by Dr Hogan enable the Court to draw an inference as to the level of severity of the accident-related condition.
239The reason for this is Mr Hashemi admitted that, in 2017, he had seen the two doctors for different reasons and presented in different ways. Mr Hashemi, in effect, admitted he presented to Dr Khozouei as well and happy because that was what he wanted to portray for the purposes of his Australian citizenship.[147]
[147]T76 ꟷ T77
240While there may have been some improvement in his mental state for periods of time in 2015, the degree of such improvement is not clear on the evidence.
241Although his treatment with Dr Khozouei spanned a significant period of time both before and after the 2017 transport accident, Dr Khozouei was not provided an accurate account of his mental state after the accident and therefore could not provide a reliable opinion about it.
242Treatment with Dr Hogan commenced after the 2017 transport accident and did not incorporate a full history of the pre-accident picture.
243I am unable to rely on Mr Hashemi’s own account of his mental state prior to the 2017 transport accident.
244Taking all of the above matters into account, I find Mr Hashemi was affected by significant mental disturbance prior to the 2017 transport accident. That disturbance included a pre-existing depressive disorder with post-traumatic features, possibly anxiety and possibly an antisocial personality disorder. He had had suicidal ideation and an attempt by hanging, criminal offending and significant interruption to his academic performance at secondary school and university as a result of his mental disturbance. He had depression, anxiety, flashbacks, nightmares and post-traumatic symptoms after the accident in 2014, which symptoms, according to Dr Hogan continued after the 2017 transport accident.
Is any aggravation of the pre-existing psychiatric condition caused by the 2017 transport accident, “severe”?
245Answering this question in Mr Hashemi’s favour is difficult because there is no reliable evidence from any treating psychiatrist which delineates between the pre- and post-accident consequences.
246Dr Khozouei might have been a suitable psychiatrist to provide that delineation, as he was treating Mr Hashemi both before and after the accident. However, his opinion was compromised by Mr Hashemi’s election to present as well due to his perceived need to paint a particular picture for the Immigration Department.
247Dr Hogan was seeing Mr Hashemi in the overlapping period, but he did not have an accurate history.
248In the months after the 2017 transport accident, Dr Khozouei and Dr Hogan each recorded vastly different histories and observations about Mr Hashemi’s presentation and functioning and provided different medication regimes[148].
[148]Between August 2017 and October 2018, Dr Khozouei noted that Mr Hashemi was feeling and functioning well and hoping to finish his degree in June 2019. The Fluoxetine medication was reduced from 40 milligrams to 20 milligrams. At the same time, Dr Hogan prescribed an increased dose of Fluoxetine (60 milligrams) and added 10 milligrams of Olanzepine (Zyprexa), which Mr Hashemi allegedly self-increased to 20 milligrams a night in October 2017.
249It is not at all clear whether Mr Hashemi complied with Dr Khozouei’s medication regime or with Dr Hogan’s, or both, or neither.
250Many of the consequences Mr Hashemi attributes to the 2017 transport accident were well entrenched between 2014 and August 2017, when he was first seen by Dr Hogan. These included depression, flashbacks, phobias, nightmares, impaired sleep and impaired driving ability.
251While the other post-accident treaters may have received some selective histories of the pre-accident situation, none of them had a full history. There is no evidence that any them had access to any reports of Dr Khozouei. Their opinions are contingent on the accuracy of the histories provided by Mr Hashemi, all of which were selective and misleading.
252There are no reports in evidence, from Dr Kumar or Dr Macmillan, who treated Mr Hashemi after Dr Hogan refused to continue as his psychiatrist.
253Dr Rahimikia took over after those two psychiatrists. He diagnosed major depressive disorder and PTSD attributable to the 2017 transport accident. The relevant symptoms were almost identical to those attributed by Dr Hogan to the 2014 accident ꟷ flashbacks, anxiety and severe palpitations.
254Dr Rahimikia was operating on the basis of a history of no prior psychiatric problems, which was far from the true state of affairs.
255Ms Park’s opinions were all compromised by her misapprehension that Mr Hashemi had not been affected by any prior psychiatric condition, nor had not had any forensic involvement, and it seems she was completely unaware of his immigration problems.
256The other complicating feature of the post-accident analysis is Mr Hashemi’s functioning. He was observed by Dr Khozouei to be functioning well. Despite the alleged severe psychiatric symptomatology noted by Dr Hogan and Dr Rahimikia, Mr Hashemi has been able to finish his university degree and travel overseas a number of times, for months at a time, including two religious pilgrimages, one to Saudi Arabia and one to Nigeria.
257I do not accept his evidence he was severely restricted during this travel, as there is no objective evidence in support of it.
258In the absence of reliable psychiatric opinion regarding Mr Hashemi’s pre-transport-accident psychiatric state and his current state, he has not discharged his onus of satisfying the Court that his pre-existing psychiatric condition had resolved and that if it had not, any residual condition has been aggravated by the 2017 transport accident, which aggravation itself is severe.
Conclusion
259Mr Hashemi’s application is dismissed.
260I will hear the parties with respect to costs.
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