Hawker v Miller - [2009] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
HAWKER & ORS v MILLER
[2009] SADC 150
Judgment of His Honour Judge Clayton
24 December 2009
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES
In November 1998 the plaintiff was a 14 year old boy who rode his bicycle into the defendant’s van. Liability agreed. Plaintiff sustained fractured jaw and probable traumatic brain damage. Plaintiff also developed a schizoaffective disorder. The plaintiff has received extensive treatment and hospitalisation and will require permanent care and is unemployable. The plaintiff alleged that his illness is a diffuse axonal injury suffered in the collision or that his cognitive deficits can be attributed to the traumatic head injury. Alternatively he suffers from symptoms of both a traumatic head injury and schizoaffective disorder.
The defendant’s case was that all of the plaintiff’s cognitive deficits and behaviour can be explained by a schizoaffective disorder.
Damages assessed on the basis that the head injury expedited the onset of a schizoaffective disorder which has been made more difficult to treat. Otherwise all of the plaintiff’s symptoms are attributable to his schizoaffective disorder and not traumatic brain injury.

HAWKER & ORS v MILLER
[2009] SADC 150

Christopher James Hawker suffers from a serious mental illness. He claims that the illness is a consequence of head injuries which he sustained when he rode his bicycle into the side of a van being driven by the defendant on 3 November 1998.
Liability for the collision has been agreed and the plaintiff is to receive one half of his damages to be assessed.
The defendant does not dispute that the plaintiff sustained a fractured jaw and a closed head injury in the collision.
The evidence establishes that the plaintiff has for a number of years suffered either from a schizoaffective disorder or schizophrenia. Both descriptions have been given to his illness. A schizoaffective disorder is a condition where symptoms of a mood disorder and symptoms of schizophrenia are both present. I will refer to the illness as a schizoaffective disorder.
There is a dispute as to the severity of the closed head injury suffered in the accident and whether the head injury is responsible for the onset or severity of the schizoaffective disorder. There is also a dispute as to whether the head injury has given rise to symptoms additional to those of the schizoaffective disorder and whether the symptoms of the head injury have made the schizoaffective disorder more brittle and more difficult to manage.
After thirteen hearing days in 2008 the trial was adjourned on the application of the plaintiff’s solicitors when the defendant’s solicitors revealed that Professor Goldney would give evidence that there was a consensus amongst the medical profession that brain injuries do not cause schizoaffective disorders or schizophrenia. The plaintiff’s solicitors needed to consult their advisers regarding that assertion. The trial resumed in August this year and the expert witnesses who had given evidence last year were re-called together with further witnesses.
The plaintiff’s counsel identified the principal issues as:
a.The severity of the plaintiff’s head injury.
b.The cause of the cognitive deficit or impairment suffered by the plaintiff. Is it a result of the brain trauma, a psychotic illness or both.
c.Whether the injury sustained in the accident materially contributed to the onset, precipitated or accelerated the onset of the psychotic illness suffered by the plaintiff.
d.Whether the plaintiff suffered a diffuse axonal injury of the brain and, if so, the sequelae of that injury.
e.Whether the plaintiff suffered a psychological stress reaction to his injuries with the onset of a depressive illness in the immediate post-accident period and, if so, the sequelae thereof.
f.Whether and when the plaintiff would have suffered the onset of the psychotic illness in any event and independently of the injury sustained in the accident.
Dr Conway gave evidence of treatment at the Women’s and Children’s Hospital in February 1999. The plaintiff's case relies upon the evidence of Dr Pols, Associate Professor Koopowitz, Professor Clark, Dr Anastassiadis and Dr Field.
The defendant called Professor Goldney, Professor Tennant, Professor Sachdev, Associate Professor Wood, Dr Paterson, Dr Thompkins and Mr Reid.
There are significant differences between the witnesses called by the plaintiff and those called by the defendant.
The Accident
The defendant’s van had been stationary on the footpath of Brooker Terrace, Richmond for more than 10 seconds waiting for traffic to clear before moving out on to the carriageway.
The plaintiff who was riding a bicycle was not wearing a helmet. It is likely that some part of the plaintiff's head, collided with the left side rear view mirror of the defendant’s van. The collision must have involved some force because the plaintiff's injuries included a fractured jaw.
Evidence of the collision was given by the defendant Mr Miller. He said at roughly 4:40 pm he was driving a dry cleaners van from his employer's premises out through the rear car park exit onto Brooker Terrace. On leaving the car park there is a power box which blocks the driver's view of the footpath to the left. Mr Miller pulled up, blasted his horn and waited a few seconds for people to cross on the footpath. He then slowly edged out onto the footpath to see what traffic was coming on the roadway. As he did that the van blocked the footpath. He did not see anybody on the footpath and brought the van to a halt on the footpath because there were vehicles approaching from both left and right on Brooker Terrace. His intention was to turn to the right. He had been stationary for 10 or 15 seconds when he heard a thud on the passenger’s door. At the time he was looking to the right because there was traffic coming from that direction. After hearing the noise he turned to the left and saw something drop to the ground. He climbed out of the van and walked around to the passenger side.
Mr Miller noticed a young lad lying next to the van and a pushbike. He asked the lad whether he was okay but received no response. Mr Miller said "I just assumed he was unconscious at that time".
Mr Miller then went into the dry cleaners shop to fetch a woman who knew first aid and returned straight back to see how the boy was. The woman came and administered first aid. Mr Miller said that when the boy saw an ambulance and police car arrive he became very agitated and tried to run away.
Mr Miller was cross-examined about a statement which he had used to refresh his memory. It was suggested that the boy had been unconscious for some minutes and Mr Miller responded "To my belief, yes, for a period of one to maybe two minutes". He said it was difficult to judge. That vague evidence of loss of consciousness has become important in the assessment of the severity of the plaintiff's head injury.
Mr Miller said that when the boy first appeared to move he was agitated and combative.
The woman who rendered first aid also gave evidence. She went outside in response to the van driver's request. She observed a young lad on the footpath bleeding from the mouth. He was very agitated. She approached him and asked his name but he did not respond. She was asked whether he was unconscious or conscious and replied that he was very incoherent but wasn't totally unconscious. She attended to the young boy who attempted to get to his feet. He was agitated and tried to walk into oncoming traffic on the roadway. She restrained him by holding on to his upper arm. A member of the public took hold of the other arm. She asked a fellow employee of the dry cleaner to get a cloth which she placed on the boys mouth to stem the bleeding. An ambulance arrived and she handed the patient over to the ambulance officers. She told them that the boy was very agitated. She had no further involvement.
The time from when the driver told her that there had been an accident until she saw the boy on the footpath was only a matter of minutes. She could not be more precise.
She could not recall what the plaintiff was saying but it was meaningless. He attempted to flail his arms around but was restrained. He was trying to get loose. She agreed that he was behaving in a way which suggested that he didn't know what was going on, and that he didn't have a sense of where he was going or what he was doing. He was restrained so that he could be handed over to the police officers.
The plaintiff did not give evidence. There was medical evidence, which I accept, that it would have been too stressful for him to do so. The plaintiff's father said in evidence that the plaintiff has always maintained that he cannot recall anything about the accident.
The Period Immediately Following the Accident
Immediately following the collision the plaintiff became combative, abusive, spat at bystanders and attempted to run away. The ambulance officers recorded in the pro forma report:
·No loss of consciousness following accident.
·Patient wildly shouting obscenities following accident.
·O/A- patient standing - shouting being restrained by bystanders.
·On examination - teenage awake - Glasgow Coma Score 12.
·Patient shouting-loudly, swearing, hitting out, spitting and attempting to bite.
·?? Cerebral irritation.
·Fresh blood evident in and around mouth.
·Swelling to left zygoma area.
·Small haematoma forehead.
·Patient combative en route – shouting (illegible)
·Patient needed physically restraining en route.
·No further patient examination possible due to combative state.
The plaintiff was admitted to the Women's and Children's Hospital at about 5:15 pm on 3 November 1998. The presenting complaint was noted as "Confusion, facial injuries, incontinent". He was very confused thrashing about.
The Discharge Summary at the Women's and Children's Hospital recorded:
14-year-old boy. Presented by ambulance after bicycle vs stationary van accident. Initially very combative and required restraining. Blood around mouth, left facial swelling, good neck control, no LOC.
Neurological observations were made at the Women's and Children's Hospital from 5:15 pm to 8:30 pm. Glasgow Coma Scale scores taken at 17:15, 17:25 and 17:45 were 9, 10, and 8 respectively.
The Glasgow Coma Scale is a scale which is used for quantifying a person’s level of consciousness following traumatic brain injury. It assigns a value to each of three criteria, first what is required to make the patient open their eyes, secondly the patient's best verbal response and thirdly patient's best motor response. The highest score achievable is 15 points. The Glasgow Coma Score does not measure the severity of a head injury, although it is a criterion which some people take into account.
At 17:40 hours 2.5 milligrams of morphine was given to the plaintiff. The Glasgow Coma Scale reading of 8 at 17:45 is a consequence of the lowest score being awarded for what was required for the patient to open his eyes at that time.
At 19:50 the plaintiff’s eyes opened spontaneously and he was allocated four out of a possible four points for that criterion. He was recorded as being confused for which he received four out of the possible five points for his verbal response and he was recorded as obeying commands for which he received six out of the possible six points, a total of 14 out of a possible 15 points. That was the last use of the Glasgow Coma Scale.
The allocation of points was a rather arbitrary and imprecise process. In some cases the number of points awarded to the plaintiff for a particular criterion is unclear. I mention this because some witnesses have attached precise significance to the Glasgow Coma Scale scores when assessing the severity of the plaintiff’s traumatic head injury.
The Nursing Notes recorded that at 11:15 am on the following day the plaintiff’s neurological observations were satisfactory, although the plaintiff could not remember the accident.
On the following day he was transferred to Parkwynd Private Hospital under the care of Dr Hribar, a dental surgeon. The nursing assessment made at the time of his transfer noted that the plaintiff could not recall the accident but was orientated to hospital. The Nursing Transfer Summary prepared on his discharge from the Women's and Children's Hospital recorded "Motor Vehicle Accident. Concussion. Jaw injury".
The progress of the plaintiff’s admission at the Women's and Children's Hospital was recorded as:
IVT maintained overnight - bunged off at 0900 today. Regular neurological observations overnight now 4 hourly and satisfactory. Agitated when admitted but now calm and appropriate…
At that time the primary focus was on the plaintiff's fractured jaw. Hence the retainer of Dr Hribar. Nobody seems to have contemplated a serious brain injury. That is evident from the fact that the plaintiff was allowed to leave the Women’s and Children’s Hospital. No scans were carried out to investigate the possibility of a brain injury.
Dr Hribar examined the plaintiff on 4 November 1998 and recorded that he had sustained facial injuries while riding a bike and that he had retrograde and anteriograde amnesia.
The plaintiff was discharged from Parkwynd Private Hospital at 10:15 am on 6 November 1998. The copy of the notes from Parkwynd Hospital is largely illegible, but there is nothing to indicate that a brain injury was a concern.
The plaintiff did not return to school that year. That may have been related to embarrassment about his appearance. His father thought that he had completed the year nine examinations and the family was not concerned about him returning to school for the rest of 1998.
Following the accident the plaintiff was not his normal self but was quiet and withdrawn. He was disinterested in his normal activities.
In mid-December 1998 the plaintiff and his family went on a holiday to Victoria. First they went to the Mornington Peninsula where the plaintiff was quieter than usual but otherwise without problems. Then they went to the Lorne caravan park. One day the plaintiff returned after surfing and complained that his testicles were not normal. He was agitated and upset. His father assured him that there was no problem but the plaintiff was agitated and the family cut the holiday short because of the plaintiff’s behaviour.
The plaintiff's somatic concern about his testicles was subsequently considered by some psychiatrists as an indication of the prodrome of schizophrenia or a schizoaffective disorder.
The plaintiff's father gave evidence that there was at that time a marked change in the plaintiff’s behaviour and that he did not wish to see his friends, which was very unusual.
February 1999 - Admission to the Women's and Children's Hospital and Treatment by Dr Conway
When the plaintiff went to the surgery of Dr Hribar for a check-up on 2 February 1999 he started to cry uncontrollably and became hysterical. Dr Hribar thought he was severely depressed and organised an immediate consultation with a psychiatrist at the Women's and Children's Hospital Psychiatric Clinic.
In a report dated 15 December 1999, Dr Hribar noted that on hospital visits during the initial treatment and at his surgery the plaintiff was quite withdrawn. Dr Hribar wrote that the most worrying aspect was the plaintiff’s psychological state. He understood that the plaintiff had dropped out of school that year and was refusing to have psychiatric assessment or management. He thought that the psychiatric problems would continue until Christopher commenced treatment. Dr Hribar did not mention the possibility of traumatic brain injury.
On 2 February 1999, on the referral of Dr Hribar, the plaintiff was admitted to the Psychiatry Clinic at the Women's and Children's Hospital. The Admission Notes recorded "Agitated depression with possible mood-congruent psychotic features".
A Psychiatric Nursing Assessment recorded:
·"four years ago-felt worthless"
·"felt a lot more depressed since the accident"
·"says he feels he has had a nervous breakdown initially did not want to stay but settled"
A nursing note made at 9 pm on 2 February 1999 recorded that the plaintiff was "very apprehensive" and "said all he needed was to change his personality and attitude and he will be okay".
On 3 February 1999 nursing staff noted that the plaintiff had been anxious and agitated that morning.
Evidence was given by Dr Conway who is now a consultant paediatrician. In 1999 he was employed by the Women's and Children's Hospital and had the care of the plaintiff. He gave evidence of the hospital notes which included references to:
·Recent teariness, guilt
·The problem had been noted by his mother since mid-December.
·A note of the family psychiatric history recorded that the plaintiff's paternal grandmother had "several nervous breakdowns", both of his mother's parents and her sister had suicided and his father suffered chronic fatigue.
·A fight at school prior to the accident.
·The plaintiff being quiet for a few weeks after the accident.
·The holiday in Victoria. The note reads "notably unwell on the Thursday of holiday, crying, not going surfing. Since then worsening".
·He's a bad person, no good at anything, wants to die, never be good, shouldn't have copied older brother (aged 23-male model, surfer, good at sport). Chris now saying should not have looked up to him, as never as good.
·Says can't talk to people.
·Says can't play basketball, hopeless player.
·Troubles with kid at school.
·Currently in year 10. In year six or seven at Plympton Primary graffitied on car.
·Never felt good about myself, never felt be as good as my brother - always hid - never revealed how I felt - can't tell them.
·I felt so bad, like I didn't have a conscience.
·Not want to go to school, had to force myself,
·Not very good person
·Two years after graffiti incident, felt guilty about how much of a brat I was. Downhill on skateboard to prove was tough. Hit head, put back out, cause of scoliosis.
Observations were made that his affect was anxious and depressed and he made the statements "don't even feel like I'm here", "don't feel like on this earth/planet". In particular the plaintiff said "I've forgotten what it is to enjoy. I don't feel like I have any personality. Used to enjoy self four years ago".
The notes made at the Women's and Children's Hospital are significant because they indicate problems that predated the accident. In particular the notes confirm the plaintiff had not wanted to attend school prior to the accident and there is the suggestion that the plaintiff had been better four years earlier.
In addition the hospital notes contain a reference to the fact that the plaintiff had been talking about suicide for approximately 2 weeks and that he had a mark on his wrist from a steak knife. The plaintiff said he "didn't have the guts to do it".
Dr Conway noted that his mother had taken the plaintiff to a reflexologist for massage to his head and the reflexologist had suggested St John's wort and Tyrosine.
Dr Conway said the assessment made was of:
·A nearly 15-year-old boy with depression/anxiety/suicidal ideation, with recent head injury/fractured jaw.
·Approximately 6 week history of worsening function.
·Preoccupation with guilt.
·Themes around older brother.
·Two week history of suicidal ideation, some self harm.
·Neurosis each to have symptoms of depression and anhedonia.
·Evidence of current attachment/separation issues and current anxiety and past attachment issues.
·Strong family history of suicide.
·Plan: admit, complete the examination/electrolytes….

On 3 February 1999 Dr Conway met the plaintiff's father who arrived at the hospital and announced that he was taking the plaintiff home. Dr Conway noted:
Father had pressure of speech (in hypomanic way) - themes re public v private, way treated - insistence of taking out. Seeking script but says will leave regardless. Plans to take to a physician in North terrace not named, but not within two days.
There was discussion about a private psychiatrist. Dr Conway noted that Mr Hawker took time to show him school reports and photographs from the plaintiff’s early life and family life. He thought Mr Hawker was trying to prove that the plaintiff was normal and healthy and explain away family health problems. He noted that Mr Hawker told him that he "has had contact with mental health system as member of Jehovah's Witnesses - helping people. Knows all about schizophrenia, mania etc - says Chris not compliant with St John's wort - informed no private inpatient services…".
Why Mr Hawker should have tried to prove that the plaintiff was normal and healthy, explain away family health problems or raise the topic of schizophrenia at that time is not clear.
Dr Conway arranged an appointment for the plaintiff to see a psychiatrist at the Women's and Children's Hospital but the parents did not pursue that appointment and they arranged for the plaintiff to see Dr Thompkins, a psychiatrist in private practice.
A CT scan taken at the Women's and Children's Hospital did not detect any abnormality.
In the Discharge Summary Dr Conway noted:[1]
…Family history: maternal grandmother, grandfather, and aunt all suicided. Paternal grandmother "nervous breakdowns". Dad has "chronic fatigue syndrome", is high achiever and motivated. (Came across as possibly cyclothymic). Admitted to hospital by mother, subsequently discharged by father after two nights, discharge not advised but not opposed and offered "open door" to return. Recommended to see a child and adolescent psychiatrist for follow-up. Considered to be a suicidal risk but not detainable… Concerns re possible induction of mania with SSRI (antidepressants) and need for close follow-up.
[1] T 1012.
Importantly no diagnosis was made of traumatic brain damage.
On 4 February the plaintiff was discharged from the Women's and Children's Hospital in the company of his father. Later Dr Conway telephoned the parents to advise that the plaintiff should not take antidepressants for two weeks because he had been taking St John's wort.
March to June 1999 - Treatment by Dr Thompkins
The plaintiff then consulted Dr Thompkins, a psychiatrist in private practice. The plaintiff and his mother saw Dr Thompkins on 8 February 1999, Mrs Hawker saw Dr Thompkins alone on 14 March 1999, both the plaintiff and his mother saw Dr Thompkins on 16 March 1999 and Mrs Hawker saw Dr Thompkins alone on 1 June 1999.
Dr Thompkins thought that the plaintiff was suffering from agitated depression and that there may be some psychotic features. He prescribed Zoloft.
Dr Thompkins was told about psychosomatic concerns which predated the accident. He noted that Mrs Hawker told him that the plaintiff had complained of a chest deformity four months before the accident and had been seeing a reflexologist who massaged his spine prior to the motor vehicle accident.[2] Subsequently he made a diagnosis that prior to the accident the plaintiff was in the prodrome of schizophrenia.
[2] Exhibit D48.
For some reason, which is unexplained, the warning given by Dr Conway was not heeded and the plaintiff did take antidepressant drugs with the consequence that for a short time he became manic. He believed he was a rock star and spent all day singing. That problem settled when he stopping taking the drug.
On 21 February 1999 Dr Thompkins wrote to Dr Hurn of the Morphettville Medical Centre. Dr Thompkins said the motor vehicle accident was "thought to be the cause of his psychiatric decompensation". He referred to the strong family history of psychiatric problems and wrote:
Despite the inference in the (Women's and Children's Hospital) discharge summary, I am not entirely convinced that Christopher was free of emotional problems prior to his recent motor vehicle accident. For about three months before the accident, he had developed concern about his body image, particularly relating to a chest deformity of his left anterior ribs. His parents had sent him to see a Reflexologist, and the condition was being treated with spinal massages. This is in keeping with the family's readiness to consider alternative forms of medicine. He was thus similarly managed after the motor vehicle accident, with St John's Wort, Tyrosine and further massage. Things have not gone well for Christopher, and for the past two weeks he is reported as being unpredictably violent (punching walls, kicking the coffee table, banging doors), and talking of jumping off a cliff. This is all completely out of character as is his following his mother around constantly seeking reassurance, and his disinclination to resume his school studies. In recent weeks he has also been referring to himself as "bad, no good". He has also become self-conscious about his very slim build, referring to himself as "skinny".
I could elicit no other history suggestive of psychopathology antedating the motor vehicle accident. Most particularly, although the motor vehicle accident involved riding his bicycle without a helmet, I understand this is common practice for Christopher and did not constitute abnormal or unusual risk-taking behaviour.
His degree of somatic preoccupation verged on the psychotic in that he felt his testicles were loose. He could offer no explanation for this. In particular he agreed that he had sustained no injury in that area. He also expressed preoccupation with other normal anatomical features of his genitals. As the interview went on, I felt that Christopher was holding himself together less and less effectively. Tears became more and more prominent. I felt he had been trying to put on a brave front to please his mother. To his mother's obvious dismay, he slowly reverted to the presentation expected of somebody who, in lieu of his usual energetic surfing, had two weeks previously merely sat on the beach and cried.
There is not a great deal more that I would wish to add to the Women's and Children's Discharge Summary. I agree he is suffering from an agitated depression, and there may well be some psychotic features. Given the obvious head injury and loss of consciousness, I also wondered about a resolving brain syndrome component. Perhaps his somatic preoccupation is more readily understood given his premorbid somatic concerns. (Underlining added).
That report was written by a treating specialist for the benefit of the plaintiff’s general practitioner. Dr Thompkins did address and presumably discounted the possibility of traumatic brain injury.
When Mrs Hawker saw Dr Thompkins on 14 March 1999 she told him that the plaintiff was still unwell and was "too anxious, forgetful and confused to attend school".
The plaintiff and his mother both saw Dr Thompkins on 16 March 1999. Dr Thompkins noted that the history provided by the plaintiff differed from that given by his mother on 14 March 1999.
Dr Thompkins did not see the plaintiff for a couple of months but he did see Mrs Hawker on 1 June 1999. He wrote to Dr Hurn again on 8 June 1999. Dr Thompkins noted the plaintiff was apparently greatly improved. In that letter Dr Thompkins wrote that he had done his best to reassure Mrs Hawker "that her worst nightmare, namely that Christopher will turn out like his paternal grandmother, will not come to pass".
There is no reason to question any of the history recorded by Dr Thompkins. It is a contemporaneous record of the plaintiff's condition and confirms that the plaintiff had somatic concerns about his body image for about three months prior to the accident. It is important objective evidence which some of the witnesses called by the plaintiff, who deny that he was in the prodromal of schizophrenia at the time of the accident, do not take into account.
Dr Thompkins specifically said that he was not entirely convinced that Christopher was free of emotional problems prior to the accident. He said that from the first time he saw the plaintiff he thought there were psychiatric features. In his evidence Dr Thompkins also said that it was more likely than not the plaintiff was suffering from schizophrenia when he first saw him. Something must have caused him to make those observations. He also referred to the strong family history of psychiatric problems.
At the trial the family history of psychiatric problems was a contentious issue.
1999 and Early 2000
There is not a great deal of evidence as to what happened during 1999 save that the plaintiff stayed at home, stopped associating with his old friends, was quiet and only interacted with his parents.
At the end of 1999 his father endeavoured to persuade him to return to Urrbrae High School where he had good friends, but the plaintiff did not wish to return.
The plaintiff did attend Blackwood High School for a few weeks in 2000. He believed that other children were putting marijuana in his lunch and had other difficulties with fellow students. He stopped attending school and has not attended school since.
2000 - Admission to the Adelaide Clinic - Dr Paterson
On about 1 or 2 March 2000 the plaintiff had an altercation with some surfers at Boomer Beach and was unsettled for the next couple of nights.
On 6 March 2000 at about 3 am the plaintiff put on his rollerblades and a backpack containing a metal bar and announced that he was going to find a former teacher to kill him. An ambulance was called at about 8 am and the plaintiff was taken to the Emergency Department of the Royal Adelaide Hospital where he was detained under the Mental Health Act. He was admitted to the Adelaide Clinic under the care of Dr Paterson, the Director of the Intensive Care Unit.
The plaintiff remained in the Adelaide Clinic until 22 April 2000, that is about 50 days. Large doses of psychotic and anti-manic pharmacological medication were prescribed. He was most unwell.
Dr Paterson referred the plaintiff to Mr Mark Reid, a neuropsychologist, but the plaintiff was unable to complete a neuropsychological assessment because of his condition.
An electroencephalogram did not identify any definite focal or epileptic abnormality.
When the plaintiff was admitted to the Adelaide Clinic his father provided a history, referred to the fact that he had chronic fatigue and also mentioned his mother's problems. In his evidence to the court Mr Hawker explained his reference to schizophrenia on the basis that his wife was in the habit of referring to her mother-in-law's condition as schizophrenia.[3]
[3] T 82.
Dr Paterson prepared a report dated 7 June 2000 for the plaintiff's solicitors. He noted that the plaintiff had been increasingly irritable over the days preceding his admission and had been increasingly preoccupied with the idea that people he knew were dealing with drugs and that people might be trying to kill him.
Dr Paterson said that the plaintiff demonstrated a range of symptoms including affective instability in that his emotional tone varied from being sad and tearful to being happy and elevated and to being irritable and hostile. He also described a range of psychotic delusional beliefs including that he was homosexual, that people were trying to poison him, a belief that other people, including members of the treating team, were homosexuals who were trying to hurt him and a range of other religious and grandiose persecutory beliefs. He was disorganised in his thinking and speech and his behaviour in interviews was impulsive.
The plaintiff spent two lengthy periods in the Intensive Care Unit and remained at the Adelaide Clinic under a detention order receiving treatment until 22 April 2000. Dr Paterson said that the plaintiff required large doses of antipsychotic and anti-manic pharmacological interventions to attenuate both his psychotic symptoms and his affective instability and irritability. He was a detained patient for reasons of safety to other people and himself. He assaulted a member of the nursing staff and on another occasion absconded.
Dr Paterson said that the plaintiff’s symptoms slowly settled but even at the time of discharge he displayed agitation, an affective instability and psychotic thoughts.
Dr Paterson wanted neuro-psychometric and neuropsychological testing carried out. Attempts to carry out that testing were unsuccessful because the plaintiff was too unwell for any useful psychological tests to be performed.
During the time he spent at the Adelaide Clinic a number of investigations were carried out including a functional neuro imaging scan of the brain, a SPEC and an electroencephalogram. No abnormalities were detected although the testing was disrupted by the plaintiff’s distractibility and behaviour.
Dr Paterson diagnosed the plaintiff as having a bipolar disorder with psychotic features. In the report to the plaintiff’s solicitors dated 7 June 2000 Dr Paterson said that a diagnosis of schizoaffective disorder was also considered, but he could not elicit a period of time when the plaintiff's delusions or hallucinations were present for two weeks without prominent mood symptoms.
Dr Paterson said that the plaintiff's family history of a paternal grandmother with schizophrenia would suggest that the plaintiff probably had a biological vulnerability to psychiatric disorders. He said that it could be speculated that a head injury of the degree that the plaintiff suffered on 3 November 1998 could be a precipitant contributing in the development of his current affective psychotic presentation. At that time the full family history had not been revealed to Dr Paterson. He had not been told of the history on the plaintiff’s mother’s side.
Dr Paterson commented that Christopher had suffered significant short-term impairment and disability with his bipolar affective disorder. He said there was also suggestion of impaired cognitive functioning and intellectual abilities which was yet to be clarified. He recommended regular psychiatric reviews and assessment by Mr Reid, a psychologist.
On 22 April 2000 the plaintiff's father chose to discharge the plaintiff from the Adelaide Clinic against medical advice. When he was discharged Mr Hawker said that the parents wanted to take the plaintiff home because he was more relaxed there. While he was still not well he did take his medication.
2000 - Move to the Sunshine Coast
In June 2000 the plaintiff and his father left South Australia on a surfing holiday which took them to Canberra, Sydney and Brisbane and then the Sunshine Coast where they intended to stay for about six weeks.
Whilst in Brisbane, at his uncle's home, the plaintiff set fire to his sodium valproate. One night he talked of getting a knife and killing his parents. That was the first such threat. Since then many threats have been made against his parents, in particular his mother. The plaintiff's father arranged for Christopher to see a doctor in Cooroy.
The plaintiff became seriously psychiatrically ill and the assistance of a psychiatrist was required. Mrs Hawker joined her husband and the plaintiff in a rented house at Peregian. The family decided to stay on the Sunshine Coast. Initially they rented the property at Peregian and in about June 2001 purchased a home at Coolum Beach. At that time the plaintiff was being treated by Dr Stevenson. He was maintained on medication although the plaintiff’s parents had difficulties in getting him to take his medication.
On several occasions whilst they were at Peregian the plaintiff attacked his parents. On other occasions he left the home in the evening and remained away overnight. He would ring his father about 8 am the next morning and ask to be collected. On one occasion he had no shoes or shirt, on another he had given away his boogey board and on another he had sold his watch to buy dinner.
October 2000 - Consultation with Dr Paterson – Report dated 31 October 2000
His solicitors arranged for the plaintiff to see Dr Paterson again on 26 October 2000, presumably to obtain another medico-legal report. The plaintiff had not attended earlier appointments with Dr Paterson for treatment because he was in Queensland.
In a report to the plaintiff's solicitors dated 31 October 2000 Dr Paterson noted that there had been substantial problems with Christopher whilst he had been residing in Queensland. Dr Paterson referred to the report which Dr Thompkins had written to Dr Hurn on 21 February 1999 which revealed a much more substantive family history and therefore greater biological pre-disposition to affective illness than the history which Dr Paterson had obtained himself at the Adelaide Clinic. In that report Dr Paterson wrote:
In my report dated 27 June 2000, I stated, after acknowledging the family history of Schizophrenia, that "a head injury of the degree Christopher suffered on the 3^rd November 1998 could be a precipitatant contributing in the development of his current affective psychotic presentation". The statement does not imply aetiological causation but rather that the head injury that Christopher suffered on the 3^rd November 1998, may be viewed as an incident that in some way had contributed to Christopher presenting with an Affective Psychosis at the time that I first met him in The Adelaide Clinic in March 2000.
Dr Paterson also wrote:
…I therefore agree with Dr Thompkins assertion that with the very strong biological loading Christopher Hawker has, that he was vulnerable to the development of an affective or psychotic illness. The contribution of the head injury can only be speculative but given, from the history I have been able to obtain, the apparent chronological relationship with Christopher's head injury and his subsequent development of affective instability I believe it is not unreasonable to speculate that the head injury has had a contributing role in the precipitation of Christopher's presentation.
February 2001 - Examinations of the Plaintiff by Professor Goldney, Mr Reid and Dr Paterson
In February 2001 the plaintiff and his father came from the Sunshine Coast to Adelaide to see Professor Goldney, Mr Reid and Dr Paterson for the purpose of medico legal examinations.
Report of Professor Goldney to the Defendant's Solicitors dated 5 March 2001
Professor Goldney is a professor of psychiatry at the Adelaide University. He has been practising psychiatry for about 40 years. In addition to his academic position he conducts a private practice. He wrote a report dated 5 March 2001 for the defendant's solicitors. For that purpose he interviewed the plaintiff and his father.
Professor Goldney formed the opinion that the plaintiff had a severe psychiatric condition, probably a schizoaffective disorder. He said that the diagnosis indicated that there were significant symptoms not only suggestive of a severe depressive condition, but there were also features of schizophrenia.
Professor Goldney considered the significance of the head injury which the plaintiff sustained in the collision and concluded that there was probably no great concern about the head injury per se. He said the schizoaffective disorder would not have been caused by the motor vehicle accident but it is possible that it may have contributed to its onset.
Mr Reid - Report to the Plaintiff's Solicitors dated 21 June 2001
Mr Mark Reid is a neuropsychologist. He initially saw the plaintiff in March 2000 at the request of Dr Paterson when the plaintiff was an inpatient at the Adelaide Clinic. He has seen him on subsequent occasions. Mr Reid carried out testing. He provided a report to the plaintiff's solicitors on 21 June 2001.
In his report Mr Reid said there appeared to be little doubt that the plaintiff did develop a psychotic illness, most likely a schizoaffective disorder. The psychotic disorder was very obvious to himself when he saw the plaintiff as an inpatient at the Adelaide Clinic. He did not attempt a detailed evaluation of the plaintiff's mental state because he was aware that was being monitored and treated by Dr Paterson. He did not take a detailed history about any possible pre-emergent psychotic illness prior to the accident although he did peruse school records.

Mr Reid said that from the information in the hospital case notes and the ambulance officers report it appeared that the plaintiff suffered a probable mild head injury in the motor vehicle accident.
On the first two occasions that he saw the plaintiff Mr Reid was unable to carry out a neuropsychological assessment because of poorly sustained concentration in the context of an ongoing psychotic illness. On the third occasion he saw the plaintiff Mr Reid managed to undertake an incomplete neuropsychological assessment which revealed slowed information processing ability, some poor monitoring of his performance and some difficulty with sustained concentration. Memory skills in general were considered to be average. Mr Reid said there were no specific localising features of cognitive impairment and the results obtained were not inconsistent with the effects of a diffuse head injury with some associated frontal lobe dysfunction. He said such difficulties were also consistent with the cognitive dysfunction found in psychotic and schizophrenic illnesses.
Mr Reid formed the opinion that the plaintiff's psychotic illness had not completely resolved, although there had been a very substantial improvement. He said the ongoing descriptions of aggressive behaviour, if not handled appropriately, and persistent difficulties with concentration were consistent with an incompletely resolved psychotic illness.
Mr Reid told the plaintiff’s solicitors that on the basis of his examination on 1 March 2001 there were no definitive features which were clearly indicative of ongoing cognitive impairment related to acquired brain injury rather than the cognitive deficits associated with a psychotic illness. He continued that given the probable severity of the injury, as gleaned from the hospital case notes, he would not expect any substantial ongoing cognitive deficits post accident.[4]
Dr Paterson - Report to Plaintiff's Solicitors dated 30 March 2001[5] and Dr Paterson's Oral Evidence at the Trial
[4] Exhibit D11 p 80.
[5] Exhibit D11 p 33.
The plaintiff's solicitors arranged for Dr Paterson to see the plaintiff again on 1 March 2001. Dr Paterson noted that the plaintiff's father had told him that the plaintiff had not been compliant with the mood stabiliser sodium valproate. The primary concern during that consultation was that Christopher had not pursued the treatment that Dr Paterson had recommended in Queensland. Dr Paterson said that his concerns about the plaintiff's non-compliance and the general non-compliance and non-engagement with psychiatry and psychiatric services were "extremely concerning and very unfortunate with potentially negative prognostic implications".
Dr Paterson read Professor Goldney's report of 5 March 2001. He wrote in his report that he believed Professor Goldney's report and his summary and conclusions were consistent with his understanding of the plaintiff and his earlier reports.
Dr Paterson was puzzled why during the two-month admission to the Adelaide Clinic in 2000, when considerable time was spent in obtaining a long-term and comprehensive history about Christopher, no mention had been made of the family history of psychiatric illness in the plaintiff’s maternal family.
Dr Paterson first gave evidence at the trial on 22 July 2008 confirming the contents of his three reports. It is significant that he said that the plaintiff was the most unwell young man he had had the privilege of looking after. He did not dissent from anything in the reports of Dr Goldney.
Dr Paterson said that it was possible that there were cognitive impairments which were affecting the plaintiff's progress and prognosis but he could not comment one way or the other whether he had a cognitive impairment by reason of the accident. He said patients with schizophrenia develop cognitive impairment.
Dr Paterson was asked whether the symptoms which the plaintiff was showing were the result of an affective or psychotic illness or were attributable to the head injury. He said that the illness that he looked after the plaintiff for in hospital was a psychotic illness.
As to the statement in his report that it was not unreasonable to speculate that the head injury had had a contributing role in the precipitation of the plaintiff's presentation, Dr Paterson gave evidence that he was not an expert in that area. Dr Paterson said that in the absence of other evidence of anything beforehand the accident could be speculated to have a contributing role. He would have liked school reports and neuropsychological assessments before making a definite determination. Dr Paterson said that the information provided to him was that the plaintiff had no symptoms prior to the accident. That history is inconsistent with the information elicited by Dr Thompkins. Also the evidence establishes that the family history was stronger than what had been revealed to Dr Paterson.
Dr Paterson's initial diagnosis was bipolar affective disorder. Later his diagnosis became schizophrenia.[6] He said that for the purpose of the opinions he had expressed the label did not matter.
[6] T 1646.
Dr Paterson did not think that stress associated with the trauma of the accident could have played a role and contributed to the development of depression and behavioural changes.[7]
[7] T 1647.
Dr Paterson was asked whether the symptoms which he noticed in February and March 2000 may be explained by traumatic brain injury. He said:
In my opinion they don't get explained by a traumatic brain injury. In my opinion, as I've said all the way through, I don't think I can ever say that the accident didn't have some contributory role, but in my opinion - with family history, with what appears to be reliable evidence of a prodrome, with some symptoms prior to the event - my opinion is that it's an aspect that’s part of the biological, psychological, social formulation as I was talking about earlier. But it's not of its own, in my opinion, sufficient to explain why Christopher Hawker was as unwell as he was.[8]
[8] T 1653.
Dr Paterson said that if the head injury was responsible for the presentation that he saw during February and March 2000 he would have been looking for something more contemporaneous to an admission to hospital. He said:
…So if there was absolutely no symptom at all, it’d be unusual, I would’ve thought, if the head injury was responsible for him to present 15 months afterwards. Because if an event happened then I - and that was the direct cause of something catastrophic - I would’ve thought that there would’ve been something very obvious at that time...[9]
[9] T 1654.
He thought that somebody with a traumatic brain injury of that degree would have been in a traumatic brain injury unit. He thought there would have been significant cognitive impairment related to a brain injury. What he saw was a young man with schizophrenia who was manic, irritable, psychotic and extremely difficult to manage.[10]
[10] T 1653.
At the time of the latest discharge from the Adelaide Clinic Dr Paterson wrote "Affective psychosis/manic psychosis probably secondary to head injury". He subsequently revised his opinion as to the probability of an association with the head injury.
In cross-examination Dr Paterson disagreed that when he saw the plaintiff in 2000 the plaintiff's presentation could be explained on the basis of traumatic brain injury masking as psychological stress which was the opinion of Dr Koopowitz.[11] He said the plaintiff was suffering from a significant psychiatric illness.
[11] T 1658.
Dr Paterson gave evidence again this year. For that purpose he had prepared a further report which is dated 21 November 2008. His evidence remained the same.
2001 to 2004 - Sunshine Coast - Nambour Hospital and Sydney - Prince of Wales Hospital
While the family was living on the Sunshine Coast there were occasions on which the plaintiff threatened his parents. On one occasion his father was so scared that he locked himself in his bedroom.
On three occasions the plaintiff was admitted to the Nambour Hospital. The first was from 15 March 2001 until 11 April 2001. The hospital records show that the reason for admission was "psychiatric disorder" and the principal condition treated was "schizophrenic disorder".
He was admitted to the Nambour Hospital again on 29 April 2001 after being brought in by the police for exposing himself to women. He remained in hospital on that admission until 17 May 2001. The record of that admission shows that the principal condition was "Adjustment Disorder with Disturbed Conduct" and "Schizoaffective Disorder".
He was admitted to the Nambour Hospital a third time from 1 July 2001 until 4 July 2001 and treated for "Adjustment Disorder". The hospital records refer to a head injury as a complication or secondary diagnosis.
In all the plaintiff spent 37 days in the Nambour Hospital during 2001.
In October 2002 the plaintiff’s father obtained employment in Sydney where he rented an apartment and lived during the week while the plaintiff continued living on the Sunshine Coast with his mother.
In late 2003 the plaintiff and his mother moved to Sydney to be with his father. Whilst in Sydney the plaintiff was admitted under detention to the Prince of Wales Hospital at Randwick for about four months from 24 November 2003 until 24 March 2004. The period of detention of 121 days speaks for itself. The principal diagnosis was schizoaffective disorder.
An MRI scan of the plaintiff’s brain at the Prince of Wales Hospital was normal.
Return to Adelaide - Progress and Hospitalisation Since March 2004
The plaintiff's parents decided to return to Adelaide and the plaintiff was discharged from the Prince of Wales Hospital. His treatment was followed up in Adelaide.
The records of the Queen Elizabeth hospital show the plaintiff was admitted to the Cramond Clinic between 5 May and 2 June 2004. A Discharge Summary noted that the plaintiff was living in Adelaide with his mother while his father was living in Sydney. Mrs Hawker had telephoned Southern ACIS after the plaintiff became aggressive towards her and was refusing to take his lithium. He had placed his hands around her neck in an apparent attempt to strangle her.
Mrs Hawker reported that in the preceding two weeks the plaintiff had stopped taking his lithium and seemed to become very depressed. On one occasion he stated that he wanted to die and took a handful of tablets, but Mrs Hawker stopped him. He also expressed mild paranoia in feeling that people were staring at him at a shopping centre.
On 26 February 2005 he was admitted to Flinders Medical Centre.
He was transferred from Flinders to Brentwood at Glenside Hospital on 15 April 2005 and then transferred to the Paterson East ward on 7 May 2005. He was transferred back to Brentwood for several weeks and then back to Paterson East on 3 June 2005. He was discharged on 23 June 2005. He was placed under a continuing detention order and a treatment order until 6 November 2005. Compliance with medication was a problem.
A Discharge Summary, dated 24 June 2005 signed by Dr Pols recorded that the principal diagnoses were a schizoaffective disorder and brain damage secondary to a motor vehicle accident with probable frontal lobe dysfunction.
The Discharge Summary noted that over the weeks prior to the admission the plaintiff had become increasingly paranoid believing people wanted to harm him and his family and were invading his house. His behaviour had deteriorated with increasing agitation and physical aggression towards his mother and he was admitted to the Flinders Medical Centre on 26 February 2005 where he presented as disinhibited, socially intrusive and impulsive, with ongoing persecutory delusions.
The Discharge Summary noted that the plaintiff was referred to the Brain Injury Options Coordination and to the Brain Injury Rehabilitation in the Community and Home (BIRCH) so that he could undergo rehabilitation with respect to brain damage.
The plaintiff has been hospitalised in South Australia on many occasions. The plaintiff spent 20 days in the Queen Elizabeth Hospital in May and June 2004. He was treated at the Flinders Medical Centre on a total of 208 days between 27 February 2005 and 21 March 2007. He was treated at Glenside on a total of 787 days between 15 April 2005 and 3 January 2008. In June and July 2008 he was admitted to the Flinders Medical Centre for about 20 days. In May and June of this year he was admitted to the Flinders Medical Centre for 29 days and he was also admitted to the Flinders Medical Centre between 22 July and 5 August this year.
A Discharge Summary dated 7 October 2005, signed by a Resident Medical Officer and Dr Pols, noted that the plaintiff had been admitted after an altercation with his mother over medication. At the time of admission his parents felt unable to have the plaintiff at home but eventually they decided to give him "one more chance".[12] There is reference to a letter from Dr Anastassiadis advising that the plaintiff required assistance from Options Coordination, the Exceptional Needs Unit and the Brain Injury Rehabilitation Unit.
[12] T 909.
The plaintiff's treatment had been taken over by Dr Pols in March 2005. There are records of several multidisciplinary meetings to attempt to arrange a management plan. The minutes indicate that one of the difficulties was funding.
At the end of November 2007 a meeting considered that the only alternative was for the plaintiff to return home, because there was no where else for him. However the hospital would only release the plaintiff if his father was home because there was a view that Mrs Hawker would not be safe at home alone with the plaintiff.
Eventually the plaintiff was discharged from Glenside and allowed to return home because there was no other accommodation arrangement. He was only allowed to return home on 19 December 2007, because his father had stopped work; otherwise the plaintiff would not have been released. Finding suitable accommodation has been a challenge.
Since then his parents have tried to organise him. They prepare his meals and monitor his medication. They organise activities such as trips to the beach. He continues under the treatment of a psychiatrist and receives fortnightly injections. Mr Hawker gave evidence that medication has always been an issue. He was aggressive about taking his medication and has threatened his father's life.
The records of those periods of hospitalisation are in evidence. I will not attempt a summary of the plaintiff's condition or treatment over the last few years. The pattern has remained the same and for present purposes the lengthy periods of hospitalisation speak for themselves.
An Overview of the Respective Cases
At its highest the plaintiff's case is that his illness is caused solely by a head injury, in particular a diffuse axonal injury suffered in the motor vehicle accident and his cognitive deficits can be attributed to a traumatic brain injury. In the alternative the plaintiff has a schizoaffective disorder which was caused by a head injury suffered in the motor vehicle accident or the schizoaffective disorder was brought forward by a head injury sustained in a motor vehicle accident.
A further alternative again is that the plaintiff suffers from both a schizoaffective disorder unrelated to the car accident together with cognitive deficiencies consequent upon the head injury and the head injury has made the symptoms and treatment of the schizoaffective disorder more difficult than would otherwise have been the case.
The defendant's case is that all of the plaintiff's symptoms are explained by an inevitable schizoaffective disorder. The plaintiff was predisposed to such an illness by reason of his family background and was in fact in the prodrome of the illness at the time of the accident. While the head injury may have brought forward the plaintiff's symptoms all of the symptoms are consistent with a schizoaffective disorder. Otherwise the plaintiff's symptoms were not caused by the accident.
Associate Professor Koopowitz and the Claim that the Plaintiff Suffered a Diffuse Axonal Injury of the Brain
Associate Professor Koopowitz attributes the plaintiff's difficulties to a brain injury, namely a diffuse axonal injury, rather than schizophrenia or a schizoaffective disorder.
Associate Professor Koopowitz was asked to see Mr Hawker in April 2005. At that time he was a senior consultant psychiatrist at Glenside and visited the Brain Injury Rehabilitation Unit at Hampstead Rehabilitation Centre once a week. He had been asked to interview the plaintiff to assess his suitability for transfer to Banfield Ward, a unit of the rehabilitation services at Glenside campus. The plaintiff's treating psychiatrist had referred the plaintiff to rehabilitation services because she felt that the plaintiff needed longer term management for his psychiatric condition.
Associate Professor Koopowitz prepared a report dated 25 April 2009 for the purpose of his evidence. At the time of writing the report he was employed by the University of Adelaide as an Associate Professor in Psychiatry and as a neuro psychiatrist at Hampstead Rehabilitation Centre, Brain Injuries Rehabilitation Unit. He lectures undergraduate and postgraduate students in neuropsychiatric aspects of traumatic brain injury, has presented at conferences and has published papers on brain injury.[13] His focus seems to be on brain injury.
[13] Exhibit P 34 p 35.
The plaintiff was interviewed by a senior registrar in the presence of Associate Professor Koopowitz on 22 April 2005. Associate Professor Koopowitz said that his role was to ask pertinent questions and he took contemporaneous notes.
In his evidence Associate Professor Koopowitz referred to the Ambulance and Women's and Children's Hospital records saying:[14]
…the faithful recording of the sudden onset of a post-TBI (“Traumatic Brain Injury”) combative confused state that lasted from around 16h30 until its sudden recovery at around 19h00 with a return of almost full lucidity should have told its own story. The documentation that there was, the following morning, amnesia for the events of the accident, move the clinical picture beyond speculation that a disruptive blow with sufficient force to the reticular activating system provoked a transient loss of consciousness in an adolescent brain.
While the erudite literature reviews of Professors Goldney and Clark and Dr Pols make interesting academic reading, they remain academic. In the real-life clinical setting, Mr Hawker suffered a disruption to the "connectivity" of his brainstem-hypothalamic-limbic-striatal-neocortical neural networks. Whether clinicians wish to label this as "schizophrenia" or "TBI" would be dependent on their clinical experience and their reading of the literature.
[14] Exhibit P 34 p 54.
Associate Professor Koopowitz also said:
I commented at that assessment that while I could understand why Mr Hawker had received psychiatric diagnoses such as Schizoaffective Disorder, my experience painted for me a different explanatory model. I thought that Mr Hawker's clinical picture was highly consistent with the longitudinal pattern that would be expected following a traumatic brain injury. I felt he was demonstrating problems related to information processing of a clinical nature that I had seen in many other patients, and behavioural patterns that had been well-described in patients with the neurobehavioral behaviour sequelae of closed head injury and resultant diffuse axonal injury.
A perusal of the medical notes available to me caused me a degree of concern, because I could find no evidence that any services related to Brain Injury Rehabilitation had previously been involved with Mr Hawker. I felt that even many years following his acquired brain injury, there would still be potential for rehabilitation, and that it was in Mr Hawker's best interests that he be managed outside of a Mental Health Service setting. I strongly suggested that instead of a transfer to the Rehabilitation Services at Glenside, transfer to the inpatient unit at HRC may be more beneficial, with the possibility of subsequent transfer to outpatient Brain Injury Rehabilitation Services.

That was the only occasion on which Associate Professor Koopowitz personally consulted with Mr Hawker.[15]
[15] Exhibit P 34 p 39 to 40.
The evidence of Associate Professor Koopowitz was that the plaintiff had suffered what he described as a "diffuse axonal injury" which occurs when many different axons are severed, stretched or bruised and many different circuits are "disconnected" with varying degrees of severity.[16] He described it as the disconnection between the brain stem and cortical structures at some level.[17]
[16] Exhibit P 34 p 47.
[17] T 1259.
Associate Professor Koopowitz said that the subject accident most likely triggered a cascade of life altering events and had it not been for the subject accident the plaintiff would not have been in the situation that he was when he met the plaintiff in April 2005. On the occasion when he examined the plaintiff he thought that the clinical picture that he saw was more consistent with the neuro behavioural sequelae of a chronic brain injury.[18]
[18] T 1237.
Associate Professor Koopowitz disagreed with the diagnosis of schizoaffective disorder. He said the plaintiff's symptoms can be explained by the neuro behavioural sequelae which a brain injury has.[19] That evidence of Associate Professor Koopowitz is contrary to the overwhelming body of evidence that the plaintiff suffers from either schizophrenia or a schizoaffective disorder. I reject that evidence of Associate Professor Koopowitz.
[19] T 1250.
Emeritus Professor Tennant, whose evidence I accept on this topic, said that Associate Professor Koopowitz’ diagnosis of diffuse axonal injury presumed that there was some evidence of such an injury. He said that in the absence of evidence of the existence of such an injury it was supposition.
Other witnesses, such as Associate Professor Wood, had difficulty in understanding the evidence of Associate Professor Koopowitz. The relevance of a lot of the material in his report is difficult to divine.
Another expert witness, Professor Sachdev, was asked whether, assuming that the plaintiff had a mild head injury, a diffuse axonal injury could account for the plaintiff's florid psychotic symptoms. He said:
I have to be careful to answer this question, because my understanding would be that if psychotic symptoms developed straight after the head injury, then one would clearly say that this is a direct consequence of the diffuse axonal injury. Because any deficits that you see classically with a head injury maximal, straight after the head injury, and they gradually improve, that is true of cognitive deficits that you see the greatest deficit straight after. That is why you actually have a delay before you do an assessment of the cognitive function, because you want them to improve and that is in the first three months, whereas with psychosis its something emerging later rather than coming immediately. If it comes immediately after that, it's easier to attribute the psychosis. But we don't call it schizophrenia. We call it schizophrenia because it's emerging after a delay, only the person is relatively well, though not completely well, therefore we do not know, we can't attribute it directly to the axonal injury as a consequence.[20]
[20] T 1409 l2.
I accept that evidence from Professor Sachdev. His observation that the symptoms of a head injury are greatest straight after the head injury and gradually improve is significant. Others have expressed similar opinions. In this case the illness emerged after a delay.
Associate Professor Koopowitz is an Associate Professor of Psychiatry at the University of Adelaide. He holds important positions with the Royal Australian and New Zealand College of Psychiatrists, has published widely and conducts a private practice. His opinion does not have the support of any of the other experts and is contrary to the general body of evidence. It is contrary to the overwhelming body of evidence which is that the plaintiff's primary illness is a schizoaffective disorder. Whether the plaintiff also suffers from cognitive deficits attributable to the traumatic brain injury is a secondary consideration. The opinion of Associate Professor Koopowitz does not recognize the existence of the schizoaffective disorder and his evidence does not assist me to resolve the issues between the parties. Without wishing to be disrespectful I put his thesis to one side.
I accept the evidence of Professor Tennant that the theory of Associate Professor Koopowitz is just supposition. Professor Koopowitz did not take into account the plaintiff's predisposition, the possibility that he was in the prodrome or the actual development of his illness. His only contact with the plaintiff was when he sat in on the interview by a Senior Registrar. The information on which Associate Professor Koopowitz made his diagnosis was very sparse.
The evidence does not establish that the plaintiff’s illness is attributable to a diffuse axonal injury.
March 2005 to March 2007- Dr Pols
Dr Rene Pols is a Senior Consultant Psychiatrist and Assistant Director of the Pain Management Unit at the Flinders Medical Centre. He is also Deputy Director of Flinders Human Behaviour and Health Research Unit and a Senior Lecturer at the Flinders University School of Medicine. He has been a consultant psychiatrist since 1973.
Dr Pols’ evidence gives the most realistic support for the plaintiff's case. I have therefore set out his evidence extensively, notwithstanding some repetition which is necessary to keep his observations in context.
Dr Pols’ opinion is that the plaintiff has both schizophrenia and a head injury.[21]
[21] T 251.
From March 2005 to March 2007 Dr Pols was the plaintiff's treating and responsible consultant, initially at the Paterson East Unit at Glenside Hospital and then at the Margaret Tobin Centre. Dr Pols’ primary concern was the management of the plaintiff's condition.
On 3 October 2007 Dr Pols provided a comprehensive report to the plaintiff's solicitors.[22] In that report he said that he had not personally completed a full psychiatric assessment of Mr Hawker for the purpose of providing a medico-legal report and he referred to a "corrected summary history" that he had prepared for the Administration at the Flinders Medical Centre on 24 January 2007.
Dr Pols "Corrected Summary History" prepared for the Administration at the Flinders Medical Centre dated 24 January 2007
[22] Exhibit P9 p 2.
The summary prepared on 24 January 2007 was prepared by Dr Pols in the ordinary course of the plaintiff's treatment. It commences with the observation that the plaintiff:
… was injured at the age of 14 in an MVA with a significant head injury. Five months later he had his first episode of a schizo-affective psychosis admitted to ACWC. Since then he has had about nine admissions, four in the last two years. All these have been treated only by SAMHS. It appears that people lost sight of the fact that he had had a serious head injury. (Underlining added).
Whether the plaintiff had suffered a significant or serious head injury, as opposed to a mild head injury is one of the issues in this case. In referring to a significant and serious head injury it seems that Dr Pols was referring to the assessment of others rather than his own assessment of the severity of the head injury. The basis for his reference to a significant or serious head injury is not clear.
Dr Pols’ summary recorded that as at January 2007 the plaintiff had been in hospital for about 15 months. When the plaintiff was admitted under the care of Dr Pols he had a frontal lobe syndrome with problems of impulse control. He was having difficulty learning from experience. Education and strategies were being designed to give him and his family "insight". The plaintiff was considered a serious risk to himself and to the community. Dr Pols’ summary recorded that over the previous 15 months it had become clear that:
·The plaintiff suffered from a schizo-affective disorder that was readily treated with a neuroleptic and mood stabiliser (zuclopenthixol and lithium/carbamazapine).
·He had a significant genetic loading for that disorder on both sides
·He had been assessed by two independent forensic psychiatrists on separate occasions who both considered that he presented substantial and increasing risks for the community over a prolonged period.
·Dr Pols had participated in four large interdisciplinary consultations with the plaintiff's medical team and lawyers at which a management plan was determined.
·The issues were funding, medication, management of impulse control, staff safety, suicide and self harm, housing and social activities.
Dr Pols wrote that the plaintiff had been in hospital far too long and had been waiting for community placement since about May 2006. Dr Pols said that from a psychosis perspective the plaintiff did not need to be in hospital but from safety of the community and his family he did. The only thing stopping his discharge to the community was the funding necessary to pay for the community support.
Dr Pols’ Report to the Plaintiff's Solicitors dated 3 October 2007
In the report to the plaintiff's solicitors dated 3 October 2007[23] Dr Pols added the following observations to what he had said in January 2007 in the summary for the hospital administration:
·When he first met the plaintiff at Paterson house it was apparent that he was suffering from a schizo-affective disorder that was unstable and quite difficult to manage as non-compliance with medications was a constant issue leading to recurrent admissions.
·The second major issue was a demonstrated failure to learn the benefits of medication from experience.
·The third was the plaintiff was distressed by the side-effects of medication.
·Dr Pols noted that the family attitude to medication and treatment was ambivalent.
·A further issue of concern was the fact that there were significant problems associated with the plaintiff’s ability to exercise self-control, particularly when he was angry and frustrated. It had been necessary to admit the plaintiff to the closed unit at Glenside on multiple occasions following assaults on staff and other patients, risks of absconding and impulsive behaviour such as running into the traffic. He had assaulted his mother on at least three occasions in the context of trying to get him to take his medication.
·Another issue of concern was that in January 2006 the plaintiff returned from the beach with a report that he had exposed himself to two young women. Enquiries revealed similar behaviour in Queensland in 2001. On 12 May 2006 the plaintiff exposed himself to a junior female medical practitioner.
·Specific management was required to assist the plaintiff to control his sexual impulses.
[23] Exhibit P9 p 7.
Dr Pols wrote that throughout the plaintiff's stay at Paterson East and the Margaret Tobin Centre he did not personally conduct a full psychiatric history but he saw the plaintiff on multiple occasions, usually to deal with episodes of agitation, medication changes or preparing for and working through clinical conferences. He accepted the histories shown in the Glenside and Flinders Medical Centre case records and had no reason to doubt the histories provided by Professor Goldney, Professor Clark, Dr Paterson or the histories provided by the records from the Queen Elizabeth Hospital or the Prince of Wales Hospital.
He wrote that the history elicited by Dr Thompkins, some four months after the accident, provided important information about premorbid concerns about the plaintiff's body image, particularly about his chest before the accident and his testicles being "loose" some two months after the accident. He had taken those matters into consideration in arriving at his opinion.
The plaintiff's solicitors had asked Dr Pols to comment on whether the plaintiff had suffered any and what brain injury and diminution of intellectual functioning as a result of the accident. Dr Pols answered that Mr Hawker had suffered a moderate brain injury at the time of his accident on 3 November 1998. That opinion was based upon Dr Pols’ Clinical Assessment and the fact that the longitudinal pattern of his illness had increasingly revealed that impulse control had become a limiting factor in his management.
In Dr Pols’ opinion what he saw was consistent with neurological impairment being present following the accident as indicated by the Glasgow Coma Scale, clear posterior grade amnesia of at least 15 minutes duration, clear anterior grade amnesia of two to three days and the severity of the facial injuries. Dr Pols wrote:
Whilst head injury is clearly not one of my areas of specialist competence, such injuries are reasonably common in Pain Unit patients who are a part of my considerable clinical experience. The issue is, that taken together these three areas of observation at the time of the accident all support clear evidence for a "moderate to severe" (Dr Anastassiadis 4/10/2007) traumatic brain injury that in my view affected the frontal and baso-temporal as well as the occipital lobes. This latter hypothesis is also consistent with the prominent features of frontal lobe disinhibition seen immediately post injury where Mr Hawker was described by officers of the SAAS as "Patient wildly shouting obscenities"; "Shouting loudly, swearing, hitting out, spitting and attempting to bite??, cerebral irritability" and "combative en route-shouting. Patient needed physically restraining en-route. No further patient examination possible due to combative state." This disinhibition has persisted and significantly complicates his management.[24] (Underlining added).
[24] Exhibit P9 p 11.
To the extent that Dr Pols relied upon the report of Dr Anastassiadis as an assessment of a "moderate to severe" traumatic brain injury it is significant that Dr Anastassiadis had not made a careful analysis of the severity of the plaintiff's head injury himself. Dr Anastassiadis relied on what he had been told by others, presumably Dr Koopowitz, whose evidence I do not accept. As a consequence the basis for the statements by Dr Pols as to the severity of the traumatic brain injury are questionable. Also Dr Pols’ interpretation of the plaintiff's conduct at the scene is contrary to the evidence of others who regard the behaviour of the plaintiff immediately after the accident as an indication of a psychosis rather than a head injury.
Dr Pols referred again to the evidence of the plaintiff's inability to learn new information and apply abstract comments about his illness to his life situation. Dr Pols observed that was not diagnostic of acquired brain injury as some such effects may be observed in patients with chronic psychosis, but it was more frequent and more severe with acquired brain injury. He said:
…These multiple observations from different perspectives shift the balance of probabilities in the direction of the brain injury being directly related to the severity of dysfunction and impairment. In my view the central exacerbating issue that has made the management of his psychosis more difficult and his impairment more severe is the deterioration in his cognition secondary to the closed head injury.
Dr Pols noted that formal testing had led to agreement by Mr Reid, Associate Professor Wood and Professor Clark that the plaintiff's level of intellectual functioning had been significantly impaired in comparison with that before the accident but he observed that there was difficulty in the attribution of the deterioration to either his chronic psychotic illness or to the traumatic brain injury.
Dr Pols observed "There is little doubt that Mr Hawker was pre-morbidly vulnerable in the light of his family history of suicide and schizophrenia". Dr Pols also noted that the relative risk of the occurrence of psychiatric illness after head injury was increased in comparison to those persons without head injury. He wrote:
In this case, Mr Hawker suffered a moderate level of closed head injury as judged by the presence of significant posterograde and anteriograde amnesia, significantly decreased GCS and significant facial fractures consistent with contra-coup deceleration injury with potential frontal lobe, baso-temporal and occipital damage. Best estimate on the balance of probabilities would suggest that Mr Hawker had between a 4 fold and 2.8 fold increased relative risk for the development of psychiatric illness… It should also be noted that this picture of emergent psychiatric illness following closed head injury is clearly recognized in rehabilitation medicine. (report of Dr P. Anastassiadis 4/10/2007).[25] (Underlining added).
[25] Exhibit P9 p 13.
Whether the emergence of psychiatric illness following closed head injury was clearly by recognised is the issue raised by Professor Goldney. While there may be debate as to the proper interpretation of the epidemiological studies the evidence does not support the proposition which Dr Pols attributes to Dr Anastassiadis. Dr Pols himself expressed a different view in his letter of 18 March 2009 and in his oral evidence. To that extent there was no basis for the opinion expressed by Dr Pols in October 2007.
Dr Pols considered the possibility of precipitation of the psychosis by the head injury itself. He expressed the opinion that acute traumatic events such as bereavement, illicit drug use or in this case closed head injury can result in the precipitation of psychosis. He said that on the balance of probabilities the head injury acted to precipitate the plaintiff’s schizoaffective disorder.[26]
[26] Exhibit P9 p 13.
To the extent that Dr Pols was saying the head injury has brought forward or expedited an inevitable schizoaffective disorder I accept his evidence. It is supported by others such as Professor Goldney and Professor Tennant. I do not understand Dr Pols to be saying that the head injury has caused a schizoaffective disorder which would otherwise not have occurred.
If Dr Pols was saying that the head injury was the cause of a schizoaffective disorder that would not have otherwise occurred that would be contrary to other evidence which I accept. The evidence does not establish that the plaintiff’s head injury was the cause of his schizoaffective disorder.
Dr Pols considered the suggestion that the plaintiff may have been suffering from the prodromal or symptoms of psychosis. He noted the views of Dr Thompkins and Professor Goldney on this topic and stated:
The interpretation of these behaviours as indicative of pre-existing psychopathology is a possibility only. There is little doubt however that Mr Hawker's admission to the ACWC in February 1999 was the onset of his schizo-affective disorder.[27]
[27] Exhibit P9 p 14.
Dr Pols said that it was clear that there had been significant diminution of the plaintiff's intellectual functioning as a consequence of the accident as well as the deficits occasioned by the psychosis and:
From my perspective as his treating clinician for a protracted period, his impulsivity, his failure to learn and cognitive deficits, his response to firm limit setting as well as working more closely with the family suggest that the traumatic brain injury has had a substantial impact upon the course and management of this young man's illness. It is likely that the illness was precipitated by the injury, that its course has been made worse by the injury and that his impairment and disability has been increased by it also, when judged "on the balance of probabilities".[28] (Underlining added).
[28] Exhibit P9 p 15.
Dr Pols concluded that report saying:
…I consider Mr Hawker to be permanently disabled and that the brittle nature of his psychosis is substantially contributed to by the traumatic brain injury, although the psychosis clearly contributes significantly in its own right. I think it extremely unlikely that he will recover or that he will be able to live independently in the future. The limiting factor is primarily his lack of capacity to learn to manage his illness and his impulse control disorder rather than the psychosis which is quite responsive to medication if he takes it as prescribed.[29] (Underlining added).
[29] Exhibit P9 p 15.

The defendant's solicitors asked "Bearing in mind the pattern and persistence of the plaintiff's symptoms, had he developed a schizoaffective disorder in the absence of a head injury, would the severity of the plaintiff's symptoms have been comparable to his present symptom complex?" Professor Sachdev answered:
There is no evidence in the literature that schizophrenia-like illness after head injury is any less or more severe than primary schizophrenic disorder. One consideration is that if the traumatic brain injury has led to significant cognitive impairment, it would complicate the presentation of the psychosis, as one would then witness the effects of both brain lesions as well as the psychosis. For example, patients with severe frontal lobe damage who develop psychosis can have a severe impairment because of the disinhibition and disorganisation that frontal lobe injury can cause, over and above any problems from the psychosis. However, in this case there is no evidence that he sustained major cognitive deficits owing to the traumatic injury.[181]
[181] Exhibit D43 para 3.
That evidence is to be contrasted with the evidence of Dr Pols.
Professor Sachdev was asked whether combative behaviour, impulsivity and sexual disinhibition were more consistent with a traumatic brain injury or equally consistent with the effects of a schizoaffective disorder. He said that behaviours described in this case are consistent with either disorder. He said if impulsivity and disinhibition are due to traumatic brain injury, one would generally see evidence of brain injury on MRI scan. He said that behavioural change is evident soon after the injury and with time there is improvement rather than worsening.[182]
[182] Exhibit D43 p 3 para 4.
When it was suggested to Professor Sachdev that the presence of cognitive deficit and impairment may be a result of traumatic brain injury in this case he said:
Not sure. I think that you could see these same deficits in someone who has no history of any injury but has a history of schizo-affective disorder or schizophrenia. To deduce from this that this is not schizophrenia or schizo-affective disorder, but this is a head injury that happened 10 years ago, I think is probably extending the limit of the tests.[183]
[183] T 1395 l17 to 23.
In his report[184] Professor Sachdev had written "…, in this case there is no evidence that he sustained major cognitive deficits owing to the traumatic injury". In cross-examination it was suggested that he did not know one way or another. He replied:
I should have probably said it better, that there was no evidence presented prior to the onset of his psychiatric disorder. Between that period of the head injury and the onset of the psychiatric disorder, that is the period when you would clearly attribute any cognitive deficits to the head injury. No evidence doesn't mean lack of evidence, that is what I am saying. What I am saying is no evidence has been presented.[185]
[184] Exhibit D43 p 3 para 3.
[185] T 1398.
It was suggested to Professor Sachdev that the fact that no evidence was presented does not discount the fact that the brain injury may have produced cognitive deficits. Professor Sachdev said:
I don't know, we don't have the evidence to say one way or the other and that would be the period between head injury and onset of say - the head injury occurred - (November 1998)… and onset clearly in February. So within those two or three months really.[186]
[186] T 1398 to 1399.
He said that people are usually tested in that period if there is concern about cognitive deficits.
As to the plaintiff's abnormal reaction to the accident itself Professor Sachdev said it was unclear whether that was a psychological or organic brain response, but the fact that it occurred so soon after the accident suggested to him it was more likely to be a psychological response. He noted it was evident that the plaintiff developed depressive and psychotic symptoms soon after the accident, and has never been free of psychiatric problems since. He did not have a neuropsychological assessment soon after the accident to determine the nature of his cognitive deficits and any assessments which he now has are likely to be influenced by the development of schizophrenia which itself is associated with cognitive deficits that are often indistinguishable from those due to a mild head injury.
Professor Sachdev said that combative behaviour such as that displayed by the plaintiff so soon after this kind of injury is unusual. He said sometimes this kind of behaviour could be a psychological reaction to severe trauma rather than just a consequence of a brain injury per se.[187] He said that type of behaviour was not what is generally seen in someone who has had an injury and a very brief loss of consciousness for one or two minutes although he could not rule out that it was a consequence of the brain injury or a psychological response to a shock that a person gets when you suddenly hit something.[188]
[187] T 1370 l11.
[188] T 1370 l20.
He said that the ways of classifying the severity of a head injury were according to the duration of the loss of consciousness or post traumatic amnesia. Duration of loss of consciousness of less than half an hour is mild head injury. Post-traumatic amnesia of one day is considered to be mild and one to seven days moderate severity.[189]
[189] T 1371 l25 to 1372 l6.
He said that because of the intervention of the medication it is not possible to say what the duration of post-traumatic amnesia with the plaintiff was.[190] He would not have regard to the fluctuating Glasgow Coma Scale. He would classify the plaintiff's injury as mild on the basis of two minutes of loss of consciousness.[191]
[190] T 1372.
[191] T 1372 l32.
Mr Niarchos suggested to Professor Sachdev in cross-examination that the conclusion as to the cause of the patient's presentation should be left to an experienced clinician in the field. Professor Sachdev responded with an extensive answer which contained the following summary of his position:
…let me just clarify this because I mean I think just giving a yes or no answer is probably not going to be very helpful. That you - whenever there is brain injury the first thing one is looking for is cognitive disturbance because that's very easily attributable to brain injury and perhaps there is some correspondence between the region of the brain that is affected and the kind of impairment there might be, cognition. Generally when I say 'cognition' you are looking at things called memory functioning language functioning or frontal executive functioning. We know that the brain is not just the basis for cognition but the brain is also the basis for emotion and thinking, and there is emotional disturbance in mood disorders and that there is thought disturbance or schizophrenia or psychosis in general. So one can argue just as brain injury could produce cognitive disturbance, brain injury could also produce thought disturbance or emotional disturbance. Now the challenge then before the clinician is to say 'Okay, if thought disturbance develops after a brain injury when would you call it being a direct consequence of the brain injury? When would you say that this is a distinct disorder? When would you say this is an interaction between a distinct disorder and occurrence of this injury?' And there you look at the nature of the symptoms, you look at the time of the development of the symptoms and you look at also how this illness evolves over a period of time and then reach a conclusion. Okay, now what is the role of that particular brain injury in terms of the final outcome really. So that's what's going on in the clinician's head really. So you have, say, someone who, like in this case, you have someone who has a very young person, 14 year old, develops, has a head injury which is, as I said, mild but has definitely brain trauma, we have good evidence that there was mild brain trauma. And then we see that there is no good evidence that I could ascertain that there are any major cognitive consequences of this head injury subsequently. So there has been some behavioural change that was noticed after sometime and then you see the evolution of psychotic symptoms after a few months and then you see a logical course over many years of psychotic symptoms and some mood symptoms that have fluctuated over a period of time and you - down the track you look at this person and it looks very much like schizophrenia or schizo-affective disorder and you go back and you say that this patient had family history of psychiatric disturbance, albeit more affective disorders rather than schizophrenia in the family and you have - there would be some disturbances through, it's not someone who has been a very high functioning perfectly well adjusted lad, he has had some problems before that but nothing definitely to suggest that there was something brewing prior to the onset of the head injury. So that's the kind of scenario you are left with. And you see that what is parsimonious is a clinician to say to me, it is parsimonious to say "This individual has developed schizophrenia or schizo-affective disorder, whatever you want to call it, which has become chronic, which responds to treatment but there have been problems in maintaining treatment over a period of time, we think that" - and you have put this episode of head injury in that context and you say " Okay, what did the head injury do; I think that is really the crucial thing. What is parsimonious for me is that maybe the head injury was a precipitant. Maybe it possibly brought forward this illness. But to attribute everything to a head injury, I think would be beyond current thinking of how these disorders occur and the context in which these disorders occur. I think that is, in a summary, the position I am taking in this case.[192]
[192] T 1381 l33 to 1384 l17.
Professor Sachdev was asked whether apart from the accident the plaintiff would have suffered from the condition which he now suffers. He said:
I would say that it's quite likely. I can't be definite about it, I mean it's possible that it might not have happened but it is quite likely that it might have happened.[193]
[193] T 1384 l36.
He was not prepared to say that it is more probable than not that the accident is responsible for his current condition. Professor Sachdev continued:
A… I would more likely say that when I say that it's a precipitatant, I am more willing to accept that if this might have happened later, it could have happened earlier because of the accident, or because of the head injury.
QThe accident has brought forward something which might -
A- which might have happened, that is what I think is more likely in this case, but how much more forward again, it's difficult to say. It's difficult to say. When people talk about "brought forward" they talk of months rather than years. But in an individual case it’s impossible to say, and again it is speculative. It's a hypothesis. There is really no way one can definitely prove it.[194]
[194] T 1385 l5.
He agreed that it would be impossible to say that the plaintiff would have developed either a schizoaffective disorder or schizophrenia at some stage of his life.[195]
[195] T 1385 l32.
Mr Niarchos asked Professor Sachdev to accept the view which Dr Field had put forward about the presence of cognitive deficits and impairments. It was suggested that if the tests conducted by Dr Field were reliable his assessment based on those tests is one that can be reasonably held. Professor Sachdev responded:
I am not sure. I think that there is one issue I will take - there are a couple of issues I could take. One is to try to relate particular deficits to particular brain regions is problematic. It does work the other way around, you have damage in a particular brain region and you can to some extent predict what deficits there may be. To produce the other way around, there are deficits and it relates this brain region is fraught with danger. One of the things that he does mention is this issue of impulsivity and saying that suggests that there is orbital medial damage in this individual is, I think, problematic. Because you see a lot of impulsivity in someone with post-traumatic amnesia that is characterised with impulsivity, but you do not see any deficits or damage in their orbital frontal cortex per se. So this kind of deduction is fraught with danger and one has to be careful with that.[196]
[196] T 1394 l2.
Professor Sachdev was familiar with the tests which had been administered by Dr Field. He was asked in cross-examination to accept that Dr Field would have been in a better position than himself to assess the results. He said:
To be truthful I think that there is a bit of bias in his interpretation, that he says that in his experience of schizophrenia he does not see these kind of deficits. I think one has to be careful again in generalising because he has obviously done a PhD in administering test to schizophrenic patients. I wouldn't be able to be certain, but because it is a very wide spectrum that you have, schizophrenia, often when you do research you select a particular kind of schizophrenia and you see certain types of deficits. Often these are chronic schizophrenia patients with what we call negative deficits. These are patients with negative symptoms of schizophrenia who often have deficits in one region of the frontal lobe which is called the prodromal prefrontal cortex. Whereas if you broaden your range to include schizo-affective disorder you will see more widespread deficits or you may see deficits that cannot be solely explained on prodromal prefrontal cortex. That is the difficulty that I have having in looking at the interpretation of these tests.[197]
[197] T 1394 to 1395.
Professor Sachdev continued to say that the battery of tests carried out by Dr Field in 2007 was not a complete neuropsychological assessment and was fairly selective testing. He said "Generally if one were to do a fairly detailed neuropsychological assessment you would do a lot more testing than what he has done". He observed that all that was presented was Dr Field's interpretation but not the results.[198] Professor Sachdev was asked whether he was saying Dr Field’s conclusions were wrong or was he only raising some issues about them. He replied "I have a concern about interpretation of the results that he has".[199]
[198] T 1396 l1.
[199] T 1397 l28.
On the basis of those statements by Professor Sachdev, together with the views I have already expressed about his evidence, I am unable to accept the evidence of Dr Field.
Professor Sachdev agreed that stress can lead to the development of psychosis but not schizophrenia.[200]
[200] T 1401 l27.
There is no reason not to accept the evidence of Professor Sachdev.
An Observation on the Medical Evidence
From what I have set out above it will be apparent that the medical issues which have arisen in this case are both interesting and difficult. Dr Anastassiadis described the material which he had been asked to consider as weighing about 25 kg.
It is relevant to repeat an observation made by Professor Sachdev:
The medical evidence for the plaintiff vs that for the defendant:
It is troubling for me to see that experts are in separate camps depending upon which side has sought their opinion. This might suggest that the impartiality of at least some of the experts has become compromised, or there has been a selection process. While this is quite human, it is, in my opinion, unhelpful in the legal process.[201]
[201] Exhibit D35 p 23.
Dr Thompkins, Dr Patterson and Mr Reid, were called to give evidence by the defendant although their involvement began as treating clinicians. Also Professor Sachdev himself was initially retained by the plaintiff’s solicitors but was called to give evidence by the defendant’s solicitors.
The experts are all competent and well respected medical specialists. Some are in the upper echelons of their specialties. They have all done their best to assist the court for which I am grateful. The fact that there is disagreement is not a reflection on the professional competence of any of the experts but rather a reflection of the difficulty of the issues that have arisen and the fact that practitioners from different specialties may have a different focus.
What I must remember is that ultimately I am not required to adjudicate on medical debates, but must determine what the evidence establishes on the balance of probabilities; in particular has the plaintiff proved his case.
Findings
I find that the plaintiff’s condition is not wholly attributable to a diffuse axonal injury as suggested by Associate Professor Koopowitz. I have already set out reasons for this finding.
I find that the plaintiff did suffer a mild to moderate head injury in the collision. I reject the assertion that the head injury was more severe than a mild to moderate injury.
I accept the evidence of Associate Professor Wood and Professor Tennant that the plaintiff's unusual reaction immediately following the accident was a psychological reaction, not an indication of traumatic brain injury. The fact that the unusual behaviour occurred so soon after the accident indicates that it was not a consequence of a brain injury.
My findings are influenced by the fact that between the accident in November 1998 and the time of the plaintiff's admission to the Adelaide Clinic in 2000 there were no signs of a brain injury.
I accept the evidence that a brain injury of the magnitude required to produce the illness suffered by the plaintiff would have been of sufficient severity to have been apparent on imaging.
I accept the evidence that if the plaintiff had suffered anything more than a mild to moderate head injury it would probably have been diagnosed at the Women's and Children's Hospital and by Dr Hribar and that it is unlikely that the plaintiff would have been discharged from the Women's and Children's Hospital as he was. If he had suffered a severe brain injury that should have been apparent immediately after the accident. The observations in the Women's and Children's Hospital were not consistent with anything more than a mild to moderate head injury.
I find that because of his family background the plaintiff was predisposed to a psychiatric illness. I bear in mind that it was just that, a disposition and not a certain indication that he would develop such an illness.
I find that since at least February 2000 the plaintiff has suffered from a serious psychiatric illness, either a schizoaffective disorder or schizophrenia.
I find that at the time of the accident in November 1998 the plaintiff was in the prodrome of a psychiatric illness.
In making this finding I rely on the evidence of Dr Thompkins. Dr Thompkins saw the plaintiff at the relevant time. I think that contemporary information revealed to the treating doctors is more likely to reflect the correct position than observations made many years later. I also rely upon the history taken by Dr Conway at the Women's and Children's Hospital in February 1999.
Dr Thompkins, who treated the plaintiff in February 1999, was told about psychosomatic concerns which predated the accident. Dr Thompkins gleaned that prior to the accident the plaintiff had concerns about his body image. A statement by the plaintiff to hospital staff at the Women's and Children's Hospital had enjoyed himself "four years ago" also suggested problems which predated the accident.
With the exception of an improvement in mathematics the plaintiff's school records indicate learning difficulties and unacceptable behaviour. The attendance records evidence significant absences. I do not accept the explanation of the plaintiff's father's that holidays were the reason for the absences.
The fact that attendance at school was a problem is established by what the plaintiff told Dr Conway at the Women's and Children's Hospital.

I treat the notes made by Dr Thompkins as an accurate record of what he was told. There is no reason for his notes to be other than an accurate record. They cast doubt upon the credibility and reliability of both the plaintiff's parents. I accept the submission of Mr Day that the evidence of the plaintiff's family as to his pre-accident functioning needs to be approached with caution.
The evidence establishes absenteeism from school, somatic concerns about the plaintiff's body, academic difficulties and behaviour which were out of the ordinary. That evidence cannot be ignored and it does in my opinion establish that the plaintiff was prodromal. That opinion is corroborated by the fact that a psychiatric illness did actually eventuate. There is other evidence which supports this finding. Professor Goldney thought that there was evidence of a gradually emerging psychotic illness at the time of the accident and Professor Tennant thought that the plaintiff’s angry and aggressive response following the collision may reflect the irrational behaviour of someone with a pre existing disorder or prodromal disorder triggered by the unexpected accident.
While Dr Pols does not accept the evidence of Dr Thompkins he has really not advanced any reason for discounting his evidence and did ultimately concede the possibility of the plaintiff being in the prodrome.
There is a suggestion that the collision itself could have been caused by the psychiatric illness. That is the collision was a case of reverse causality. It is unnecessary for me to make any finding as to that suggestion.
I find that the schizoaffective disorder from which the plaintiff suffers would most probably have manifested itself even if there was no accident. The plaintiff had a predisposition and was in the prodrome. I find that the accident probably expedited the onset of the disorder.
Nobody can ever know by what period the onset of the condition was expedited. The evidence is that it could be a matter of weeks or months, no more than a year. Doing the best that I can with the evidence I find that the onset of the condition was brought forward by a period of six months.
I find that the evidence does not establish that the head injury is the cause of the plaintiff’s schizoaffective disorder.
It is unnecessary for me to resolve the academic debate as to whether Professor Goldney is correct when he says there is a consensus that head injuries do not cause schizophrenia. There is a dispute between the experts as to the correct interpretation of epidemiological studies. As Professor Sachdev said nobody knows what the cause of schizophrenia is.
For present purposes it is unnecessary for me to go further than the evidence of Professor Tennant. I accept that there is no substantive evidence which shows a link and so far as the best available evidence is concerned that there is no link. I stop short of finding that there is a consensus.
If I accepted the argument of Professor Goldney that would provide an answer to the plaintiff's claim. However if the dispute was resolved contrary to the argument of Professor Goldney it would not follow that the head injury was the cause of the plaintiff's schizoaffective disorder or schizophrenia. The epidemiological studies do not establish that head injuries cause schizophrenia or schizoaffective disorders. That is the epidemiological studies do not support the plaintiff's claim. At best they do not close the door on the plaintiff’s claim.
There is evidence, which I accept, that all of the symptoms displayed by the plaintiff can be attributed to his schizoaffective disorder. However I cannot overlook the evidence of Dr Pols, who has been responsible for the treatment of the plaintiff for a lengthy period, that the head injury has made the plaintiff’s schizoaffective disorder more “brittle” and made his condition more difficult to manage. Unfortunately the evidence does not, and probably never could, identify precisely the way in which the schizoaffective disorder has been made worse.
The plaintiff carries the onus of proof. The evidence does not establish that deficits which can be attributable to the head injury alone have resulted in any greater level of care than the plaintiff has received in the past or will require in the future by reason of his schizoaffective disorder. Nor does the evidence establish that any of the plaintiff's compensable disabilities, including the plaintiff’s undoubted incapacity for employment, are not attributable of the schizoaffective disorder alone.
The evidence does not establish that a worsening of the plaintiff's condition or the fact that his condition is more difficult to manage by reason of a traumatic brain injury has given rise to an identifiable loss which sounds in damages.
In making these findings I have preferred the evidence of the witnesses called in the defendant's case to the evidence of the plaintiff's witnesses.
I have already explained by reasons for rejecting the evidence of Associate Professor Koopowitz. The evidence of Dr Anastassiadis can be explained by the particular circumstances in which he was retained, that is to have the plaintiff admitted to the Brain Injuries Options program following the diagnosis of brain damage by Professor Koopowitz. Dr Anastassiadis is a rehabilitation specialist, not a psychiatrist.
So far as Professor Clark is concerned the accuracy of the tests carried out by him and therefore his opinion has been put in issue by Associate Professor Wood. Professor Clark was an impressive and credible witness. However there is evidence of other credible witnesses that all of the plaintiff's problems can be explained by the plaintiff's schizoaffective disorder and there are doubts about the tests on which he relied. I prefer the evidence of those other witnesses. I do not accept the evidence of Professor Clark that the plaintiff's cognitive difficulties are a consequence of the head injury. In my opinion the evidence of Professor Clark underestimates the severity of the schizoaffective disorder. His opinion is of limited value because it was based on test results alone and did not take into account all relevant material.
While I accept that the plaintiff suffered a mild to moderate head injury in the accident the evidence does not establish that his behavioural problems are attributable to the head injury rather than his schizoaffective illness which is undoubtedly of some severity.
I have already expressed my reasons for finding that the plaintiff did not suffer a severe head injury in the accident. If the opinion of the plaintiff's witnesses is correct, the cognitive deficits to which they refer should have been apparent immediately after the accident, but they were not. Also the injury should have been apparent in imaging, bit it was not.
I have already expressed reservations about the evidence of Dr Field. He did not see the plaintiff until 2007. I prefer the evidence of those witnesses who had the benefit of examining the plaintiff closer to the event. I also prefer the evidence of the witnesses whose diagnosis was more broadly based. The diagnosis of Dr Field was based upon his testing which has been criticised. I accept the reservations of Dr Sachdev about the evidence of Dr Field.
Generally I accept the evidence of all the defendant’s witnesses who agree on the important issues. They were all impressive witnesses and none of them provided any reason for their evidence to not be accepted.
I find that the evidence does not establish on the balance of probabilities that as a consequence of the head injury the plaintiff suffers from cognitive deficits which are not explained by his schizoaffective disorder.
Professor Goldney’s statement that there is consensus that head injury does not cause schizophrenia, led to an adjournment of the trial and gave rise to a spirited subsidiary contest between the expert witnesses. It is not a topic on which they were able to contribute significantly from their own experience, but it was an area where the debate had to centre around their interpretation of learned papers discussing epidemiological studies.
On the basis of the evidence of Dr Pols as a treating clinician I find that the plaintiff’s condition is more “brittle” and the treatment of the plaintiff's schizoaffective disorder has been made more difficult by the brain injury.
It is impossible to separate the two conditions and to identify what behaviour can be attributed to the schizoaffective disorder and what behaviour, if any, can be attributed to the head injury alone. The evidence does not permit me to do that. There is reliable evidence that all of the plaintiff's difficulties can be explained by the schizoaffective disorder.
The question is to what extent has the management of the plaintiff has been made more difficult because of the "impulsive, aggressive and sexually disinhibited and inappropriate behaviour" which is not the consequence of the schizoaffective disorder but a consequence of the traumatic brain injury. The specific behaviour to which Dr Pols was referring has not been identified; and the evidence does not identify what additional care or treatment has been made necessary.
I find that the evidence does not establish that the cognitive deficiencies from which the plaintiff suffers are attributable to the brain injury. There is evidence which I accept that the cognitive deficiencies are equally consistent with the schizoaffective disorder. There is the fact that the cognitive difficulties were not apparent immediately following the head injury. There is evidence that if the plaintiff's disability was a consequence of a head injury it would have been at its worst immediately following the accident and may have improved as time passed by. In this case the plaintiff's condition has deteriorated with the passage of time.
Assessment of Damages
There is no evidence which specifically allocates particular symptoms to a particular cause. What I must do is assess whether the management of the plaintiff has been made more difficult by reason of symptoms which can be attributed to a traumatic brain injury but not the schizophrenia.
The evidence establishes that because of the schizoaffective disorder alone the plaintiff will require constant care, will never be employable and will never marry or lead a normal life. There is reliable evidence that all of his symptoms can be explained by the schizoaffective disorder. For example the evidence of Professor Tennant that the "cognitive impairment is in all probability not the consequence of the head injury".
However the evidence of Dr Pols is that the treatment of the plaintiff's schizophrenia will be made more difficult by the head injury, but the evidence does not establish whether and if so what additional costs will be incurred by reason of the super imposition of the head injury upon the schizoaffective disorder.
The plaintiff must be compensated for his broken jaw and the subsequent depression which can be attributed to that injury.
He should also be compensated because the onset of his schizophrenia has been expedited. The period by which the onset was expedited can never be known, but doing the best I can I estimate a period of six months. That means that the plaintiff has suffered from the symptoms of his schizoaffective illness for six months longer than he would have but for the accident. There can be no doubt that the schizoaffective disorder is a terrible affliction.
I need to assign a number pursuant to the Act which takes into account the pain and suffering as a result of the fractured jaw, the consequences of the depression and the fact that the plaintiff has suffered from the consequences of a most unpleasant psychiatric illness six months sooner than he otherwise would have. I also take into account the evidence of Dr Pols that the plaintiff's ongoing schizoaffective disorder has been made more brittle by the head injury. That is a permanent condition.
I assign the number 40.
So far as past and future loss of earnings is concerned the evidence does not establish any loss as a consequence of the head injury. The inevitable future loss of earnings is attributable to the schizoaffective disorder and no loss can be attributed to the traumatic brain injury.
So far as past care is concerned the evidence does not identify any particular costs have been incurred by reason of the traumatic brain injury. The plaintiff has needed very extensive care but that is a consequence of the schizoaffective disorder. The evidence does not identify any costs that can be attributed to the fact that the schizoaffective disorder has been brought forward.
There could have been occasions on which special care or treatment has been required as a consequence of aggressive or impulsive behaviour which can be attributed to the brain injury alone. In this context I have had regard to the evidence of Dr Pols. However the evidence does not identify the extent to which such care has been required in the past. As I have mentioned untangling the symptoms of the schizoaffective disorder from the symptoms of the head injury would be an impossibility.
Making an assessment of whether the additional costs of care and medical treatment may be incurred in the future as a consequence of the head injury alone is not easy.
I think that the probabilities are that the head injury alone will give rise to the need for some additional care. Rather than shirk away from the task because of the lack of evidence, the best I can do is to award a lump sum to cover the future cost of that additional care. The care will probably be provided by the plaintiff's family, but that is not certain. I award the sum of $100,000. I acknowledge the arbitrary nature of that sum but some allowance is required and that is the best I can do.
Special damages are set out in a schedule.[202] It lists the cost of the plaintiff's hospitalisation and a relatively small amount paid by Medicare. The items total $582,534.10. The items have been agreed as to quantum. However liability for the various periods of hospitalisation has not been agreed.
[202] Exhibit P52.
The cost of hospitalisation at the Women's and Children's Hospital was $2,853. It is not clear whether that relates to the November 1998 admission, the February 1999 admission or both. The matter should be clarified.
The list does not include Parkwynd Hospital or the fees of Dr Hribar. They are other matters which should be clarified.
On the findings which I have made no allowance is required for the Adelaide Clinic, Nambour General Hospital, Prince of Wales Hospital, Glenside and Flinders Medical Centre.
The amount claimed for Medicare Australia is $4,091. That needs to be broken down into items which were attributable to be jaw injury and depression and sums attributable to the schizoaffective disorder.
The defendant has been substantially successful. Because of the variables this is not a case where it is possible to make an assessment on the basis that the plaintiff was successful. Even if the effect of the head injury was greater than I have found there would still be issues such as what is the cause of the loss of earning capacity and what is the reason for hospitalisation and care.
I have therefore not attempted any further amendment of the plaintiff’s loss.
I need to hear counsel further on the questions of damages, interest and costs.