He v Transport Accident Commission

[2021] VCC 1817

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-20-05765

SHAN HE (aka DORA HE)	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2021 (via Zoom e-hearing)
DATE OF JUDGMENT:	18 November 2021
CASE MAY BE CITED AS:	He v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1817

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Severe psychiatric impairment – range

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; O’Donnell v Reichard [1975] VR 916

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Ryan with Ms M Williams	Slater and Gordon Ltd
For the Defendant	Mr W R Middleton QC with Ms E Golshtein	Solicitor to the Transport Accident Commission

HER HONOUR:

Introduction

1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 28 April 2018 (“the accident”).

2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(c):

“(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”

4The original Particulars of Injury had also included an impairment of the right knee and right shoulder, as well as mental impairment.[1]

[1]        Transcript (“T”) 2

5In forming a judgment as to whether the consequences of an injury are “serious”, “the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]

[2]Humphries and Anor v Poljak [1992] 2 VR 129 at 140-1

6The word “severe”, where used in sub-paragraph (c) is a word of stronger force than the word “serious” where used in the Act:[3]

[3]Mobilio v Balliotis [1998] 3 VR 833 (“Mobilio”)

7The plaintiff relied on four affidavits and gave viva voce evidence.  She was cross-examined.  She also relied on an affidavit of her former partner, Huajun Sun, sworn on 19 August 2021. 

8In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

9The issue in dispute was range.[4]

[4]Mobilio (ibid); T7-8

10The defendant’s case was that overall, simply any psychiatric impairment is not severe, particularly in the presence of stressors unrelated to the accident.  In any event, the plaintiff is improving, treatment is diminishing and the medication should be curtailed in the near future.[5] 

[5]T91

11A number of psychiatric consequences, whether attributable to Post-Traumatic Stress Disorder (“PTSD”) or another diagnosis, were relied on by the plaintiff. Collectively, they were referrable to the accident condition and constitute a severe and long term behavioural disturbance pursuant to the Act.[6]

[6]T97

The Plaintiff’s evidence – pre accident

12The plaintiff is aged thirty-four, having been born in September 1987 in China.  In about 2010, she came to Australia as an international student and completed a Master of Information Technology (Honours) at Monash University.  She then enrolled in a PhD in Information Technology and Computer Science (“the PHD”).

13She was granted permanent residency in around February 2013.  She undertook tutoring work as a research assistant and an internship with an engineering company full time. 

14She had experienced stress associated with her studies, for which she attended a Monash University counsellor. 

The accident

15The plaintiff sustained injuries in the accident on the said date when travelling on a bus from Monash University to her home.  As she stood from her seat to touch the bell, the driver braked heavily, and she fell forward onto the floor (“the accident”).  The bus then stopped at the next stop and a passenger helped her and picked her up off the floor.  An ambulance attended.  A fellow passenger told her a car in front had come in front of the bus.  The plaintiff had blood on her face and saw blood on the floor. 

16The ambulance took her to The Alfred hospital, where she remained overnight.  She had right thumb and right knee pain and had pain in her teeth, which were bleeding, as she had cut her face.  Physicians sutured her lip, which was extremely painful. 

17She was discharged home into the care of her boyfriend.  She had ongoing right hand and knee pain, and her knee was swollen.  She saw a general practitioner in Bentleigh as her lip was swollen and oozing, as she could not get to her regular general practitioner.  She was told to put ointment on her lip, and given antibiotics. 

18The plaintiff had ongoing pain and restricted movement in her knee, hand, arm and hip.  She started physiotherapy for her knee and returned to her regular general practitioner.  She had hydrotherapy until the end of May 2018 and did some clinical Pilates.  She continued with physiotherapy and seeing her general practitioner. 

19She developed a lump in her lip and was referred for review to plastic surgeon, Mr Blake, whom she saw at the end of June 2018.  She was advised to wait six months to see if her lip settled.  On review on 12 October 2018, he advised he could do scar revision surgery.

20The plaintiff’s mental health began to deteriorate.  She felt numb, disconnected and began to cry.  She ruminated about the accident and was really tense.  She was having flashbacks.  She did not want to get back on the bus and her general practitioner prescribed Cymbalta and Endep.

21She was referred to psychiatrist, Dr Aife Worsley, in about July 2018.  She was advised to continue with Cymbalta, but to cease Endep and commence Quetiapine instead.  She was to continue with the psychologist and arrange a review.  She attended psychotherapy with Dr Jane Power in around June 2018. 

22The plaintiff then began to attend Epworth Hospital for a day program for psychological assistance and had to cease seeing her own psychologist.  She was assessed on about 15 October 2018 and then attended for outpatient sessions. 

23In about November 2018, Dr Worsley changed Cymbalta to Sertraline, as the plaintiff was experiencing unpleasant side effects.  She took the new drug for several months but that caused significant weight gain, which impacted on her self-confidence, so she changed to Lexapro, but the transition was quite difficult.

24In about January 2019, she began attending a skills group at the Epworth.

25She continued to take medication, including Lexapro and Valdoxan daily, as well as Quetiapine and Diazepam as required.  She used a magnesium supplement to help with relaxation and sleep.  She was also taking pain-relief medication.

26While the plaintiff continued to have significant right knee problems for which she was having physiotherapy and she was concerned about the lump on her lip, her main ongoing problem was her mental health.  She had often felt down, tearful and withdrawn.  The requirement to isolate during COVID had removed a lot of stressors and triggers, however, she was concerned about her ability to cope with everyday life once things were returned to normal.

27Her sleep was poor and she either experienced insomnia at night or sleepiness during the day.  She trialled different medications to address this, but still struggled to maintain a stable, healthy and consistent sleep pattern.

28She became worried and anxious.  Her memory and concentration were poor and she needed to regularly take breaks from her studies and she forgot things easily.  Long and complicated tasks could now take days or weeks to complete, where they may have only taken hours in the past.

29Her motivation was limited and she was struggling to finish her PhD thesis, which was due in May 2019.  Hopefully, she could get it done in a few more months.  She was really struggling to get through it.  She was very worried about her future because of her reduced capability for consistent hard work.

30Before the accident, she was a very high achiever and received very good results.  She now needed to read things over and over as she struggled to focus and comprehend them, problems she did not have before the accident.  She had to push herself now to try and obtain good results.

31She was also struggling to accept the things that had changed.  She had learned skills in therapy to try and help herself, but it was different now.  She now avoided bus travel where she could, because it triggered distressing memories of the accident.

32She had broken up with her boyfriend.  He was not a very good support.  She was not social like she was pre accident and she did not want to go out.  She tried, but struggled.  When she was out, she was tired and wanted to go home, and was worried that she had ruined the mood in a group. 

33As at August 2021,[7] her psychiatric condition had improved a bit, in the sense that her depressive symptoms are not as bad as they were.  She completed the Dialectical Behaviour Therapy (“DBT”) program at the Epworth, which taught her skills to manage and regulate extreme emotions.  However, her mental health remained very troubling, namely anxiety and concentration problems, and impacted on her capacity to work at a high intellectual level.

[7]Second affidavit

34Throughout 2019 and 2020, she had treatment with Betty Chetcuti, psychologist, who was somewhat helpful, but ultimately the plaintiff found her style did not suit her, so she returned for treatment with Jane Power, whom she continues to see twice a week.  She no longer treats her in relation to problems with her relationship with her parents and boyfriend.  She did treat her at the beginning of 2018 for these issues. She also continues to see Dr Worsley, psychiatrist, and takes Lexapro, 20 milligrams daily, and Valium when required.[8]

[8]T14

35Pre accident, the plaintiff had not required psychiatric medication. She had received some short-term counselling for family and relationship issues.  She had been awarded scholarships and other awards while doing her PhD.  She was a very high achiever, but since the accident had not been able to apply for scholarships or awards because she did not have the requisite work output due to her psychiatric condition.

36She was then still working on her PhD and hoped to complete it soon.  If the accident had not happened, she would have finished it in late 2018.

37She had been able to do a bit of paid research but has had difficulty doing it because of her concentration levels and mental fatigue.  Pre accident, she had no difficulty doing research work while working on her PhD. 

38She becomes anxious and easily upset and her emotional baseline is now different, in the sense that she struggles to remain on an even keel.  She experiences very intense emotional responses to seemingly trivial events.  Recently, she had an hour-long meeting, after which she experienced symptoms of a panic attack.  If she tries anything outside of her comfort zone, she becomes panicky and she is worried about what this means for her future employment prospects.

39Her sleep is very bad and she suffers from insomnia and sleeps at strange times.  Sometimes, she cannot sleep at all, and then at other times, sleeps a lot.  Her sleep patterns are very irregular.  She had no sleep difficulties before the accident.

40Her ability to use public transport has improved and she is now able to use trams and trains, but still avoids bus travel as much as possible. She experiences flashbacks to the accident when she sees a bus. 

41She has made an effort to socialise recently so that she is not completely isolated.  She can spend time with very close friends who know what has happened to her, but does not like socialising outside that group because she does not want to explain to people what is wrong with her.  She panics when she is in an unfamiliar situation, whether work related or social.

42The main problem she faces is that she is an achievement oriented person and her job requires very high level thinking.  Since the accident, she has had significant concentration problems.  She can still focus, but only for short periods.  When she reads something new, it is as though the words do not go into her mind, it is like they are floating, and she has to read the text a few times in order to take it in.  This was not a problem pre accident.

43The same thing occurs when she listens to someone speak.  If she is doing a work project with others and someone else is talking for a long time or quickly, her mind feels disconnected from the information and she has to exert a lot of effort and attention in order to maintain focus.

44She is very worried how her concentration and memory difficulties will affect future work.  If those problems continue, she believes her progress will be significantly hampered.  Even if she manages to work full-time hours, it will be at a much lower level than she would have been able to achieve had the accident not happened. 

45In her third affidavit sworn in September 2021, she gave further details of the accident’s impact on her mental health, studies and work.

46Pre accident, her threshold for stress was high, her mind was sharp and she tutored several subjects, took up an internship and volunteered and presented at national and international conferences.  She was an active, hardworking and career driven person.  She also attended numerous work-related networking events and participated in competitions during her PhD, and was able to juggle several stressful things at the same time while achieving good results.

47Although she was affected by some family and personal matters back in 2016 and 2017, and had seen a counsellor a few times, she was able to get back to life very quickly without additional help from a psychiatrist or psychologist, and continued to handle work, study, competitions and conferences to a high level.

48Pre accident, she was awarded a living allowance scholarship and a top up one.  She published in two top conferences at international level and received awards for winning posters or presentation competitions.  Her internship experience had been written as a story to attract future students.  She had been invited to present her work at the Australian Energy Market Operator and Essential Services Commission.  She was interviewed by the Science Show on ABC Radio.  Her publications, internship story and radio interview can be found through Google.

49Her PhD is on reducing the overall electricity costs through smart demand management using artificial intelligence techniques.  Her research was maths, data and coding intensive, and involved mathematical modelling, translating mathematical models into computer algorithms and exploring, testing and analysing various mathematical methods for optimal outcomes.

50Pre accident, her intention was to play a more important part in making our power systems greener and smarter after her PhD.

51Life had been turned upside down as a result of the accident and it had taken her  more than three years to complete her PhD that could have been done in a few months.  She had not been able to work at all for a very long time,[9] even though she was offered a research assistant job and asked to provide her updated CV to the company where she worked previously as an intern.

[9]She had done some work as deposed by her in her first affidavit – T11

52At the end of July this year, she was offered a job as a casual research assistant.  That job involves developing algorithms for finding the best times to change and discharge large energy storing systems in ways to minimise the cost of meeting the peak demand of the Monash Clayton campus, and to maximise the benefits of participating in the demand response programs offered by the utility company.  The detailed activities involved in this position are similar to those of her PhD.

53She has found getting back to work, even on a casual basis, very challenging due to mental fatigue, difficulty focusing, memorising and processing complex information.  With the fatigue, she feels so exhausted she cannot absorb and process any more information.  She sometimes forgets what she is doing and needs to do, after focusing for only a couple of hours.

54Her mind also rejects information on the screen or the paper, triggering anger and frustration, and she needs frequent breaks to continue performing research.

55Sometimes, she needs to take a day or two off in the middle of the week to recharge.  She will increase the dose of her medication within the recommended range to calm down her mind, otherwise it is like she is a balloon full of air and feels as though her mind is going to explode.

56She has difficulty in coping with any sort of stress and experiences panic symptoms after any sort of high level of stressful meeting, or discussion with colleagues.  She is no longer able to work full time because of concentration problems, together with an inability to cope with stressful work.

57On top of this, she experiences insomnia, which means she is very tired and less able to manage her symptoms.  Due to insomnia, she has been working at odd hours in order to make up for working hours she has lost during the week if she cannot work steadily at that time.

58As a researcher, she relies totally on her ability to think critically and cope at a higher level, and the limitations on her mental capacity are devastating for her life and career.  She is only able to manage basic daily activities, and cooking and exercises are sometimes challenging due to mental fatigue.  She tries to live through every day making small progress at work the best she can.

59As a high achiever, it is totally against her values to sit back and relax and wait for recovery.  She feels, after three years of mental health treatment, as though she has plateaued.  Her mind does not allow her to achieve the goals she had before the accident.

60She is very worried about career prospects and the difficulty she will have working full time or at a high level as a data scientist, consultant or research fellow, in work that requires high pressure and high levels of critical thinking.  She believes her future work choices are limited and the accident has undercut her expectations for a future life and career.  She is like a field athlete with a broken toe; she can walk but never run fast like before.

61She can manage her basic life activities and do some casual work, just operating at this basic level, so she cannot imagine developing a new relationship, let alone having children.

62The anxiety from which she suffers causes her to experience fear when there are no real-life threatening events happening to her, like having a meeting at work or solving some problems. When her anxiety is high, she experiences panic symptoms, and those panic symptoms occur a couple of times a month.

63When her anxiety levels are relatively low, she experiences irritation, anger and shallow breathing, three times a week on average, depending on the duration of her exposure to the triggers, the stressful level of the events and her level of medication.  Sometimes, it can take her days to recover from an anxiety attack with the help of increased medication and therapy.

64She becomes fearful when she rides on a bus and also has to rest after a bus trip.  She has flashbacks when she gets on the bus.  The last time she needed to travel by bus was to go to the Monash office before the recent lockdown.[10] She still  avoids bus travel as much as possible and has flashbacks when she sees a bus.[11]

[10]T14

[11]T19

65She continues to experience some depressive symptoms, including low to no motivation for basic everyday activities, loss of appetite, insomnia, thoughts of self-harm and suicide.  She withdraws socially.  The depression is triggered by high anxiety levels, and the duration and intensity of the symptoms are dependent on her levels of anxiety.

66These symptoms of her mental illness have significantly disrupted her ability to work and to carry out daily activities and connect to people, and this continues after years of treatment and therapy.

67In her fourth affidavit sworn on 10 September 2021, she described in more detail the status of her PhD prior to and since the accident.

68She commenced her PhD in about October 2012.  She ceased tutoring for a period in around late 2016 to 2017 while she focused on writing papers.  In about late 2016, she submitted a paper to an international conference.  She believed she applied for an extension of her PhD thesis deadline around that time.  The paper was accepted and she went on to present it at a conference in San Francisco in early 2017.  In about April 2017, she submitted a further paper, which was not accepted. 

69In 2017, she attended a Monash University counsellor.  Her performance in her PhD was affected.  Around that time, she applied for an extension, which was granted, and she quickly got back on track.

70Between September 2017 and February 2018, she took a break from her PhD to work as an intern at Growing Energy Laboratorial Inc.  She continued to work as a tutor until December 2017.  After she completed the internship, she returned to her PhD.

71In April 2018, she was writing a paper for an international conference in addition to working on her PhD.  She considered withdrawing in good standing from her PhD so she could have extra time to complete it.

72A PhD is supposed to take four years[12] but it is not uncommon for candidates to need additional time and the university will only allow a few extensions.  Withdrawing in good standing means that a candidate withdraws from the course so the deadlines no longer apply.  They can re-enrol when they are ready to present their thesis.

[12]T13

73As the plaintiff had had previous extensions, she did not expect to be granted further ones.  She was in discussion with one of her PhD supervisors about this, but the accident intervened before she could come to a decision.

74At the time of the accident, she was required to submit her final thesis by 12 May 2018 and, if not for the accident, she would have finished it in late 2018.

75She applied for and was granted an extension after the accident, but unfortunately her mental health prevented her from meeting the new deadlines and the university put pressure on her to withdraw in good standing, which she did in November 2018.

76She attempted to return to work after she was offered a role as a casual research assistant at Monash University in December 2018.  She struggled because of her mental health, so ceased that role, but had recently returned to work as a casual research assistant.

77With the support of her supervisor, she continued to do what work she could on her PhD and discussed the difficulties she had with her PhD.  In August 2021, she re-enrolled in her PhD and is waiting on feedback from her supervisor before she submits the final thesis.

78The plaintiff submitted the full draft to her supervisor, but has not completed the thesis.[13]  She is required to engage with her supervisor on her thesis and she has a deadline now of 1 October 2021 and is waiting for their feedback.[14]

[13]Professor Doherty’s history is incorrect – T13

[14]T18

79She has not received any scholarships since the accident.  Since then, she has pushed to present herself on two occasions.  Once, she presented a paper that she had written before the accident at a multiday conference.  Before the accident, she had been able to attend multiple sessions and networking events at the conference.  However, she skipped a lot of the conference, but she was well enough to present.  At other times, she presented a poster, re-using materials she had prepared before.  That poster won second place.

Pre-accident counselling

80Before the accident, family and relationship issues were the trigger for some of her difficulties.  Also after the accident, she was struggling a lot.  Her family and her boyfriend at that time did not know how to interact with her at those times in a helpful way so it was important to be able to think “our way to interact so they were different”.[15]  She continued to see psychologists after the accident in relation to these issues.[16]

[15]T15

[16]T16

81These family problems were not independent of the accident “because they did not know how to interact with [her], or [she] did not know how to interact about the impact of the accident”.[17]

[17]T16

82Before the accident, her parents getting divorced was the main thing.  She did not remember much about personal relationships.[18]

[18]T16

83Her parents live in China.  They have been to Melbourne since the accident.  Her father stayed for about a week and her mother stayed maybe a month and  managed to leave just before the lockdown.  They were contemplating divorce in 2016 and 2017 but are still together.[19]

[19]T17

84She disagreed with Mr Lester’s note that family and relationship stressors had impacted “significantly” on her academic function.[20] Her boyfriend did lack empathy.  She talked to Mr Lester about her parents’ divorce.  There were then worries that made it difficult for her to focus entirely on her academic functioning.  Also, her mental capacity to do work was not affected.  It was her ability to focus solely on her research work, but she was still able to perform that work.  She was doing a full‑time job and also volunteering and had the capacity and ability to do research work.[21]

[20]27 July 2017; T22

[21]T23

85She then agreed there was an impact.  It did give some challenge to her focussing entirely on her academic work.  She was forced to worry about other things.  She agreed it interrupted her progress.  It did not affect her ability to concentrate or remember or memorise, but it took time and energy.[22]

[22]T24

86She agreed that she saw Mr Lester to enable her to get a thesis extension.  It was because she lost time due to the family and relationship stressors which took her away from her thesis.  Also, when she had time for her thesis, she was still able to do the work at the level that she wanted, which was different from now.  She agreed she obtained the extension because of the impact of these personal and relationship stressors in combination with the pressure or demands of submitting her thesis on time.[23]

[23]T25

87In the months before the accident, she did not have any more stress and trouble with her family.  She was okay with her boyfriend.  When she said she did not need a psychologist before the accident, she was not referring to Mr Lester.  She thought he was a bit different.  He did not require a referral and he was just a counsellor at the university.[24]

[24]T21

88She split up with her boyfriend in November 2018 but they are still friends.  They probably talk a couple of times per week.[25]  After the accident, the situation was bad and he was the only one who knew what was going on, and it was difficult for her to explain things to anyone.  After the accident, she had really huge trouble looking after herself so she would call him for help.  She has not had another boyfriend since they split up.[26]

[25]T20

[26]T20

Extensions before the accident

89She had had a few extensions, the first due at the end of 2016, and then there were a number of extensions as set out in the University records. 

90While the thesis is four years full‑time, not working, you can still do tutoring.[27]  She had had leave for the Chinese New Year in early 2016.[28]  She had kept getting extensions, which was not difficult.[29] 

[27]T26

[28]T27

[29]T28

91She did not know why there were separate extensions in the university records in 2016/2017 because they were really all the one extension when she was doing the internship with Growing Energy Laboratorial Inc based in San Francisco – related to her research work to develop some clever, smart algorithms.[30] 

[30]T30

92The counsellor was involved in the extension in mid-2017.  It might be for September or August.  The internship started in September 2017.[31]

[31]T30

93She continued her work as a tutor until December 2017.[32]

[32]T31

94At the time of the accident, her thesis was first due in May, two weeks later, and she immediately applied for an extension.  She had thought she needed longer than two weeks to finish it and expected to do it in a few months.  She knew that would happen.  It was not a stress for her because she “could go with it”.  Her stress about the thesis before the accident was normal.[33]

[33]T32

95Post accident, she took up the suggestion by the University of withdrawal with good standing because she was still undergoing treatment and they did not know when she would fully recover, so they just suggested she focus on her recovery, and when she was ready, come back.[34]

[34]T33

96She was on LinkedIn before the accident with a view to getting work.  While the LinkedIn entry included a completion date of 2021 for her thesis, that site did not allow for the thesis to be described as “continuing”.[35]

[35]T36

97There was a post of her participating in a poster competition in October 2018 in which she was shown with one of her three supervisors.  Doing a poster did not mean doing a talk but standing in front of your poster and discussing the content with people at a conference.  She won second prize of a few hundred dollars for her poster.[36]

[36]T38

98She first saw Mr Lester on 11 March 2017.  She could not remember exactly how she felt at those times “… it’s normal to feel in that way in those situations”.[37]

[37]T41

99While the Epworth notes in September 2019 mentioned her “current romantic relationship,”[38] she was definitely not in a romantic relationship at that time.  Daniel was still looking after her to some extent but they were separated.[39]

[38]17 September 2019

[39]T45

100She was not an inpatient at Epworth.  She went there once a week for a year for a full day of group and one on one sessions.  The September sessions were for PTSD, not relationship issues.[40]

[40]T47

101While it was noted at Epworth in June 2019 that the plaintiff “has stopped acting on urges to contact her supervisor (when these urges are in response to a more intimate relationship)”, she liked to talk to him a bit more.  That was the extent of it.[41] 

[41]T40; 11 June 2019 attendance at Epworth

102She did not tell Associate Professor Peter Doherty, psychiatrist, she had completed her thesis.  She did not tell him she had run out of funding.  Her mother’s diagnosis of lung cancer was not a stressor for her as she is in weekly contact with her mother and she looks good and she knows her mother will have no problem for the next five years.[42]

[42]T51

103She agreed her parents had high expectations for her in general .  She received no compliments and plenty of criticism.  She did not think she was not living up to their expectations.  She thought she was doing well.  She denied she was very obsessed with her academic progress and qualifications – she was good at it.  She disagreed she would have told him she had lost confidence.[43]

[43]T52

104She disagreed she told  Professor Doherty that before the accident her body acted in a certain way, stopping her writing her thesis before the accident. That was the situation after the accident.[44]

[44]T54

105In April 2018, before the accident, she submitted a paper to a conference in France.  She went to France in September/October 2018.  The conference was for multi days.  She spent about a week there.[45]

[45]T55

106The plaintiff agreed she told Dr Campisi that her brother was physically and verbally abusive and that her parents fought verbally and at times, physically. [46] It was correct, as Dr Campisi recorded in February 2020, that she was under a lot more stress while her parents were visiting.[47]

[46]17 October 2019

[47]T57

107When Dr Power recorded in September 2020 “although she is tired, Dora noticed that she has become more invested in her work and is managing to work for longer at a stint,” the plaintiff accepted there were some improvements since the accident. She is improving.  She thought she is improving to a certain level, and then after that it is actually difficult to keep improving.[48]

[48]T58

108The plaintiff agreed as at December 2020, she had not reported panic attacks for some time now and had regained her confidence with travelling on public transport and in the car.[49]

[49]T57 – attendance with Dr Power, 12 December 2020

109The plaintiff agreed when she saw Dr Worsley in January 2020, she was feeling okay most of the time to do more on her thesis and had organised to start voluntary work.  She did not know if her sleep was okay, as Dr Worsley noted then, but she was only taking half a Volxin.[50]

[50]T60

110It was correct, as at March 2020, that she had found a month long visit from her mother “utterly exhausting”.

111On 23 June 2020, Dr Worsley noted “aside from sleep, feels as if she is going well on the whole”.  The plaintiff did not know what it means by “going well”.  She would say she could manage herself.[51]  

[51]T61

112The plaintiff did not do any work on her thesis for about a year after she withdrew on good standing.  She then gradually got back into her work to the point where she submitted a draft last month.  She had to re-enrol to have contact with her supervisors.

113She was offered a job at Monash by one of her supervisors in July.  She works 10 hours a week and is paid $40 per hour.  She last received a scholarship in February 2018 and since then had lived off her investments, money from her parents and a little bit of paid work. [52]

[52]T67

114A table set out the various research scholarships, departmental scholarships and post-graduate awards the plaintiff had received from 31 December 2013 to 2 February 2018.  From 28 June 2016 to 27 December 2016, she received $26,000.  The most recent was a research scholarship from Monash University, with a start date of 4 September 2017 to 2 February 2018 and with a value of $35,576.

115The plaintiff last spoke to Dr Power by phone the week before the hearing when there was an emergency situation.[53]

[53]T67

116She then felt like she was going out of control – “losing my mind on that time”.  She had a presentation later in the week and she could not focus and could not work on anything at all.  She was scared and felt like she did not have time to breathe so she contacted Dr Power for emergency assistance to help her to be able to get thought the presentation on Friday – in the job she is presently doing 10 hours a week at Monash.[54]  

[54]T69

Lay evidence

117The plaintiff’s former boyfriend, Huajun Sun (Daniel), who is now thirty-one, swore an affidavit on 19 August 2021.

118He has known her for just over ten years, meeting her at university when she was doing her Masters and he was doing Honours.  They became a couple by about the end of 2011 and moved in together for a couple of years after that.  She  continued her Post Graduate studies, eventually commencing a PhD, while he chose to enter the workforce. 

119The plaintiff is very intelligent and she would always win at any arguments they had.  She was also motivated and a high achiever.  She would bring home awards for her work.

120She had worked hard on her thesis and by April 2018, was at the final stages, with a few chapters to go, and was on track to being able to complete it.  She was also doing some tutoring work and had a lot of pride in making sure she gave the best to her students.  Though she is still very intelligent, she has changed in many ways since the accident.  There were physical changes to her related to her knee injury.  He also noticed significant changes in her mental health. 

121In addition to hiking, they had done rock climbing together, which was an activity requiring not only physical strength, but mental focus and concentration, and those types of activities had become too difficult for her after the accident.

122She then could not work properly on her thesis and he did not know what to do to help.  In hindsight, he certainly lacked awareness of mental health and probably was not as supportive as he could have been.

123He could not recall her having significant emotional issues pre accident.  There were times she would be stressed, but that was understandable with her studies involving a lot of work, and it could be stressful juggling with other activities. 

124He recalled she sought counselling through the university a couple of times to manage those stressful times and was able to get through it well.  She may have sought an extension for her PhD pre accident, but it was certainly nothing like the delay in her work that had occurred after it.

125Towards the end of 2018, they were looking to move from where they had been living, part of the reason being because the plaintiff was very stressed by any accident reminders.  Their relationship had changed a lot since the accident.  She was having significant issues with her mental health and had started treatment with the psychiatrist and psychologist, and was trialling different medications.

126The whole process was brutal.  Some of the medications caused her to have trouble sleeping, so she would be drowsy and dizzy during the day and could not really do anything.  Their relationship deteriorated and ultimately ended. 

127Though they had broken up they remained friends.  When COVID began, he was in her COVID bubble.  He has often helped her by picking up groceries when she had been too anxious or too tired to do it herself.  He is aware sleep has been a major issue for her since the accident.  Though she was always a light sleeper, her sleep was fine pre accident, and he did not believe she had many good nights of sleep since.

128Although the plaintiff had had some improvement in her physical or mental health, she had never got back to where she was pre accident.  The analogy that comes to mind of her is that after the accident is she like a deflated balloon.  She has some of her energy back now, but still has a way to go to be like the person he  knew before the accident.

The Plaintiff’s medical evidence

Treatment – The Alfred

129The plaintiff attended Emergency on 27 April 2018.  It was noted she was injured when the bus suddenly stopped and she fell forward.  She was unsure whether she had briefly lost consciousness.

130Her injuries consisted of a right upper lip laceration, right knee pain and pain over the base of the right thumb.  She had a CT scan of the facial bones which showed no abnormality, and an x-ray of the right knee and right hand showed no evidence of  fracture or acute bony injury.

131She was kept in for a period of observation, and as that was satisfactory, she was discharged home.  She was to take analgesia, rest and apply icepacks and ointment to the lip laceration.  She was to be reviewed by the LMO, who would consider physiotherapy.

132Dr Campisi saw the plaintiff at Monash Health from 20 June 2011.  His clinical notes were tendered.

Dr Aife Worsley, psychiatrist

133In her report dated 1 June 2021, Dr Worsley noted she first met the plaintiff at Monash University Student Health in 2018 where they had several consultations before she began seeing her privately later that year.

134On 2 November 2018, Dr Worsely wrote to Monash requesting the plaintiff be granted an extension of her thesis as a result of her psychiatric condition.

135Dr Worsley diagnosed PTSD based on the consistent reporting of symptoms found in that condition starting immediately after the accident and persisting today.  The symptoms are very much of a PTSD nature, including re‑experiencing phenomena, phobic avoidance of public transport, vigilance and emotional blunting.

136The plaintiff had comorbid, depressive and anxious symptoms.  Her occupational functioning had deteriorated since the accident, namely her ability to work consistently on her study or hold down a job.

137In addition to PTSD, the plaintiff also has traits of a vulnerable personality which can have some overlap with symptoms of PTSD, as can the treatments.

138Treatment had included supportive psychotherapy, trials of appropriate anti-depressant medication complicated due to physical sensitivity to same, and a course of group therapy at Epworth. The plaintiff had also engaged with psychologists along the way.

139She recommended ongoing psychiatric monitoring and appropriate medication.  Further courses of group therapy and ongoing psychology may also be appropriate.

140She noted the plaintiff had an up and down course of progress with some overall improvement, though gradual over the last three years.  She managed to progress her studies slowly – slower than her pace prior to the accident.  She had some capacity for part-time work, though her PTSD would limit her ability to work full time in the immediate future.  Likewise, her social and domestic functions had been impaired since the traffic accident and may remain so for the foreseeable future.

141Dr Worsley provided a supplementary report on 3 September 2021 addressing the question whether it was likely, on balance, the plaintiff was going to make any significant improvement in terms of her occupational functioning and work capacity.

142Dr Worsley noted the plaintiff had deposed to concentration difficulties since the accident, manifesting especially around her thesis.

143Dr Worsley confirmed that concentration and occupational deterioration from pre‑accident baselines is very common in PTSD.  This is an unfortunate but natural consequence of having PTSD.  It is often compounded by the anxiety and depression that generally goes along with that condition.

144She confirmed the plaintiff had made slow gradual progress since 2018 which had been achieved only with significant interventions including trials of medications, supportive psychotherapy, one-on-one psychology and group psychology programs.

145While Dr Worsley believed the plaintiff will continue to make gradual progress, she will require the continuation of the above supports over the long term to do so.

146The plaintiff will not suddenly resume her pre-incident level of functioning in a rapid fashion, and will not suddenly be able to undertake full‑time work or study.  She will continue to need psychiatric and psychological supports for the foreseeable future.  She suspected the plaintiff’s prognosis would stagnate or regress were her supports to be disengaged.

147Dr Worsley noted the plaintiff has willingly engaged with her treatments and these have been difficult at times.  She has consistently striven to improve her circumstances and advance her recovery throughout the period of their engagement.

Lahna Bradley, clinical psychologist

148Ms Bradley reported to Dr Worsely in September 2019, thanking her for referral of the plaintiff to the DBT program.

149The plaintiff had then completed nine months of that program with three cycles, as well as a cycle of the DBT transition program prior to that.  Her final session in the DBT program was on 24 September 2019.

150Initial treatment included understanding her emotions better, how the trauma affected her, her difficult childhood, how the accident trauma had impacted on her and how to get through this due to anxiety.

151Ms Bradley reported some of the observations that were noted during the program, and based on those observations, she described a number of recommendations and plans that had been made.

Dr Jane Power, psychologist

152Dr Power wrote to the plaintiff’s solicitors in April 2021. The plaintiff had been referred to her by Dr Patrick Campisi, University Health Services, through the TAC on 31 May 2018 after the accident in which she suffered both physical and psychological injures.

153Dr Power usually saw the plaintiff on a fortnightly basis until 17 December 2018 after twenty-two sessions, when the plaintiff engaged in a DBT program at Epworth in consultation with her psychiatrist.

154The plaintiff reconnected with Dr Power in August 2020 and had continued to see her as at April this year, thirteen times.

155At the end of her report, Dr Power stated:

“NB … There was considerable emphasis in sessions about Dora’s relationship with her partner.  While the relationship contributed both positively and negatively to Dora’s recovery, the need for professional confidentiality about her partner precludes me from discussing this aspect of the therapy in detail.”

The Plaintiff’s medico-legal evidence

Dr Nathan Serry, psychiatrist

156The plaintiff was first examined by Dr Serry in September 2019.  He had available to him the report from The Alfred on admission and the clinical notes from Mr Blake, plastic surgeon.

157The plaintiff told him that that she had come to see her childhood was very difficult emotionally, neglectful and physically abusive.  Her mother grew up within a physically abusive family and repeated that pattern with the plaintiff.  Both parents placed a great deal of pressure on her and when she did not reach the academic level they wanted from her, they would punish her physically and emotionally.

158Her parents’ relationship was also fraught with lots of arguments and at times physical violence. Her father had a number of affairs and was a poor communicator, and at times would become explosive.  Despite the difficulties, her parents remained together.

159The plaintiff came to Australia in 2012, doing a Masters and now doing a PhD.  She had been in an on-off relationship with her boyfriend for six years.  He was a software engineer.  He could be emotionally neglectful, struggled to express his emotions and was quite passive aggressive. 

160The plaintiff’s previous psychiatric history related to counselling in 2016, given her parents’ ongoing material issues and her mother’s tendency to talk about her problems incessantly with the plaintiff.  She had further counselling about relationship issues with her boyfriend in 2017. 

161On mental state examination, the plaintiff was an intense and very thoughtful historian.  She was anxious and apprehensive at presentation and described having been somewhat traumatised by the accident circumstances.  Her thought content revealed a degree of reluctant pre-occupation with the accident circumstances and its sequelae. 

162Cognitive assessment revealed the plaintiff to be alert and orientated.  Mentation was of a normal speed, but there were specific subjective complaints regarding a degree of forgetfulness and a reduced ability to maintain focus.  Insight was essentially well maintained, with the plaintiff appearing to have developed considerable understanding of her own emotional life, past and present.

163Dr Serry thought the plaintiff appeared to have had a degree of pre-existing psychological distress reflecting adverse developmental experiences while growing up in China, and he expected longstanding difficulties regulating her emotions.

164As a result of the accident, it appeared as though her premorbid vulnerability was very much compounded, developing what would be best described as a moderately severe Adjustment Disorder with Anxious and Depressed Mood, and with features of traumatisation.  There had been some improvement over time with appropriate treatment.  He thought that she made a generally sound physical recovery, although she had some mild residual symptoms.

165From a psychiatric viewpoint, the plaintiff described a rather complex struggle in the aftermath of the accident, this reflecting her own very significant premorbid vulnerability, a vulnerability which Dr Serry thought rendered quite symptomatic in the accident aftermath.  She struggled with high levels of anxiety, significant levels of depression, traumatisation symptomatology, and she was having great difficulty regulating her emotional state.

166He noted the treatment to date, and commented that the plaintiff had developed considerable insight into her emotional life, continued to work on herself with the benefits of the DBT program and, over time, there had been quite a substantial reduction in the severity of her psychological distress.

167The plaintiff’s background revealed a somewhat dysfunctional upbringing in China, with exposure to neglect, emotional and physical abuse and parental marital conflict, with her parents having very high expectations of her, and when they were not met, she was punished both physically and emotionally. 

168It appeared as though the plaintiff had in some respects developed a similar type of relating to herself, and her long-term partner appeared to have reinforced such underlying issues.

169Dr Serry noted, pleasingly, with the benefit of appropriate mental health intervention, the plaintiff had made considerable improvement and would be considered better placed to deal with the vicissitudes of life moving forwards.

170He noted the plaintiff had struggled in terms of her PhD studies post-accident and her leisure activities were also said to be rather restricted.  He thought her prognosis, then, was mixed.  She no doubt had a significant degree of premorbid vulnerability which was rendered very much symptomatic in the aftermath of the accident.  She participated in very helpful mental health interventions with a psychotherapist, psychiatrist, and via a DBT program, and she had also been receiving appropriate psychotropic medication.  As that program was about to be completed, the plaintiff’s mental health would need to be carefully monitored by the practitioners she is involved with. 

171There was a re-examination on 18 May 2021 via videolink. 

172By this occasion, the plaintiff was a less intense historian than previous.  She demonstrated a normal affective range, but with some mild and less prominent underlying depressive themes that were apparent at the initial assessment; however, she was particularly anxious and apprehensive at presentation, being consistent with self-report.  Further, still, she described residual and prominent traumatisation features regarding the accident circumstances.

173While there was no abnormality of thought, stream or form, thought content revealed an ongoing pre-occupation with the accident experience, anxious concerns and, further, still pleading negative themes. 

174On this occasion, the plaintiff did report having occasional trigger sensitive flashbacks to the experience of the accident.  There were some persistent objective complaints regarding forgetfulness and reduced concentration span.  Insight appeared to be reasonably well maintained, although somewhat coloured by anxious concerns. 

175Dr Serry was provided with Dr Powers’ April 2021 report, psychologist, Ms Chetcuti’s clinical notes, the general practitioner’s records, and Dr Worsley’s reports and records. 

176When he previously assessed the plaintiff, he suggested she had in some respects developed a similar style of relating to herself, noting the dysfunction with her parents and that her previous long-term partner had, if anything, reinforced such underlying issues.

177The plaintiff had now left that relationship and appeared to be managing her emotions in a more effective fashion, but she did continue to experience clinically significant levels of anxiety and traumatisation symptomatology.

178From a diagnostic viewpoint, he thought, on a background of pre-existing psychological distress reflecting adverse developmental experiences, the plaintiff would be considered now to have a moderately severe Chronic Adjustment Disorder with anxious features and with no significant features of traumatisation.  Her depressive symptoms had improved to a not insignificant extent, with appropriate treatment. 

179The diagnosis was that of a moderately severe Chronic Adjustment Disorder with anxious features and with significant features of traumatisation directly related to the accident, which remained a contributing factor.  He thought, as a consequence of the impairment arising from the accident, the plaintiff was likely to be restricted in relation to certain activities to a not insignificant extent and for the foreseeable future, noting, in particular, she avoided bus travel.

180He thought the prognosis was mixed, noting she had a degree of premorbid vulnerability, having been compounded by the accident-related injuries. Despite appropriate treatment, he suspected the plaintiff was likely to remain somewhat symptomatic for the foreseeable future, she should remain under the care of her treating psychiatrist at the discretion of the clinician and should remain on appropriate psychotropic medications for the foreseeable future.

181Dr Serry was asked for a supplementary report, having been provided with the plaintiff’s further affidavits.  He was asked specifically for his opinion as to whether her concentration difficulties relate to her accident-related psychiatric condition.  He noted the accident circumstances and wondered whether she had blacked out briefly.  The plaintiff said when she gained awareness she was shocked, confused, in pain and was bleeding. 

182If the plaintiff did suffer a head injury in the accident, he thought that would be of very mild severity.

183He thought that the plaintiff’s ongoing cognitive complaints, particularly in terms of concentration, were related directly to her psychiatric state, specifically her psychiatric condition, namely Chronic Adjustment Disorder with anxious features and with significant features of traumatisation. 

184He had earlier noted that the plaintiff did have a background of pre-existing psychological distress reflecting adverse developmental experiences; however, there was no suggestion of any pre-existing cognitive complaints.  He therefore thought her current and ongoing cognitive complaints are part of the accident-related psychiatric condition that she suffered.

The Defendant’s medical evidence

Treaters

185Anthony Lester, psychologist, from the Monash University Counselling Service wrote “To whom it may concern” on 27 July 2017.

186He advised that he had consulted with the plaintiff on and off over the past year.  The nature of those appointments had been helping her with family and relationship stressors that have at times impacted significantly on her academic functioning.  She had been grappling with anxiety and with the demands of her thesis building.  This has been more impactful than usual.

187To this end, it may be important for her to be afforded some extra time to complete her thesis to reflect these challenges.  She had been working very hard and seeking support in order to overcome these issues.  He had no hesitation in supporting an extension where possible.

Monash University Health Counselling Clinical records

188The plaintiff saw Mr Lester on 11 March 2016.  He noted she was self-referred and a PhD student.  She said she came to counselling because of a change in longstanding difficulties between her parents and the stressful and challenging role she found herself playing in trying to support their marriage (in China). 

189The session involved discussion of issues relating to her parents marital problems and the plaintiff’s extended family had been turning to her to try and fix the problem.  She briefly described she found it very distressing to find herself in that position and was wanting some help in handling the situation.

190When seen on 17 March 2016, she appeared quite bright in mood and said nothing further had been happening on the family front.  She talked about intentionally creating a bit of distance from her family in recent weeks and feeling a bit relieved about it.  She indicated it was helpful to talk about these issues.

191When next seen on 27 February 2017, the plaintiff said she had solved the issue she had previously come about with her mother.  Things were going a lot better in that relationship.  She talked about issues in her relationship with her boyfriend.  She felt she could not end it yet because that would be too disruptive in the timeframe of completing her PhD.  She said she was also concerned about pressures she had felt from her boyfriend’s parents, who expected they would get married.  She described feeling some guilt about developing feelings for someone else while she was still in a relationship. 

192They explored how she saw her options about moving forward and talked about challenges of working through problems around relationships and emotional health. 

193On 10 March 2017, current relationship issues were discussed and the lack of understanding of her partner, and she made reference to issues in her parents’ relationship.  She said she felt she missed out on emotional nurturance, the experience of someone just listening and understanding her.  She said she felt this is why this element of her own personal relationship was so important.

194When seen on 30 March 2017, the plaintiff had a flat affect and said she had been experiencing low mood and less motivation towards her thesis.  She talked about feeling very confronted by the timeframe she had to get it completed and also confronted, in that the quality was not where she would like it.  She was worrying about her relationship and that it failed to provide her with any support with her stress. 

195She had been worried about the future, getting work, and had been influenced by others’ opinions about the worth of the PhD.  She talked about self-compassion and selfcare, and strength-focused exploration. They talked about building capacity back again regarding her work rate on the thesis, reminding herself that she does not have to sort the relationship out right now, nor does she have to worry about the future immediately, but focus on getting the job of her thesis done.

196When next seen three-and-a-half months later on 6 July 2017, the plaintiff said she had been feeling significantly better and realised there was more she wished to work on.

197When seen on 27 July 2017, the plaintiff said she was feeling quite stressed out, as the deadline for her thesis was coming up in two weeks.  She had spoken with her supervisor and had their support in applying to get an extension, and he agreed to provide a letter of assessment.  They discussed stress management, including a sustainable working model of selfcare, prioritising and time management.

198That was the last attendance before the plaintiff was seen after the accident, when she visited Dr Klein on 10 May 2018, when she presented for emotional support following a traumatic event occurring on 27 April.  Dr Klein noted that the pain was very intense and her face was covered with blood. 

199Dr Klein reported symptoms were consistent with a “diagnosis of PTSD, the recent event/Ex: replaying the event mentally, flashbacks, heightened anxiety and hypervigilance around roads/whilst being driven in care (sic) by boyfriend/when being around buses”. 

The Defendant’s medical evidence

Medico-legal evidence

200Professor Peter Doherty, psychiatrist, first examined the plaintiff in June 2021 on Zoom. He had 2018 records from treater, Dr Campisi and also Dr Serry’s September 2019 report.

201He thought the plaintiff had a significant fully disturbed psychological background before the accident, noting there was a history of abnormal parenting experiences, with high expectations, a lack of unconditional positive regard with the development of a fragile self-esteem, symptoms of depression during the late childhood years and a family history of depression, anxiety and insomnia. 

202The plaintiff undertook counselling before the accident because of the discord between her parents and the possible threat of divorce.  She was stressed at the time of the accident, having recently written a paper for a conference and at the same time the date of the submission for her PhD thesis was looming large. 

203The plaintiff told him she had terrible insomnia; her mind just could not go to sleep. She had no dreams or nightmares.  She had difficulty being in a bus and avoided it.  The structure and routine of the day was not the best and it fluctuated, as did her activity level.  Her social activities were limited.  She rated her mood as between 4 to 6 out of 10.  She had learned with DBT and now had skills to manage it.  Her energy levels were not good .

204There were times when her brain did not want to keep thinking.  When she was a bit anxious, she got something like a lump in her throat and her chest tightened and she had to squeeze the words out.  On normal days if there were no triggers her anxiety was 3 to 4 out of 10.  Triggers to increased anxiety could be memories of the accident.  She described panic attacks but they are not evidence now.  She was not going out much due to COVID.

205She felt her concentration and memory were so/so.  She told him she had finished her PHD the previous month and she should be happy to put it behind her.  She said she could feel happy sometimes.

206On mental state examination, she related easily and comfortably over Zoom.  There was a mild degree of anxiety but no tears or distress.  She reported her mood had improved and she felt she had skills to manage herself better.  There was a mild degree of anxiety.  She was alert, aware and orientated and in clear consciousness and there appeared to be no cognitive impairments.

207After the accident, he thought there was a coalescence of anxieties and worried focus on the accident and its effect on her, and such stressors and problems at the time were attributed to the accident.  She developed what can be best described as a worsening of her pre-existing psychological vulnerabilities and stress-related symptoms.

208From a clinical point of view there was, at most, a diagnosable Adjustment Disorder with Depressed and Anxious Mood and a worsening of her pre-existing psychological vulnerabilities.  She was treated assertively and in a supportive way by the treating psychologist, and then attended Epworth through 2019.  He thought she had recovered.  She had recently submitted her PhD.

209On examination, there were very few, if any, symptoms remaining.  She was looking forward to the PhD being marked and getting on with her life.

210In his opinion, there was no disorder of personality, Major Depressive Disorder, PTSD condition or pain-related psychiatric condition present.  The treating psychiatrist sought an extension or leniency from the university, claiming the plaintiff suffered from PTSD.  He did not think she would meet the criteria for that condition.

211In his view, the outcome of Adjustment Disorders is that they fade over time and have done so in this case.  The stressors she was under at the time of the accident have now faded, and did so over time, and moreso on the submission of the thesis. 

212The plaintiff felt she is now better able to deal with her emotional and psychological issues which were pre-existing, with the stress of her thesis submission now relieved, and the adjustment features are remitted.  The outlook was positive from a psychiatric point of view.  She had not got an appointment with the psychiatrist and the sessions with the psychologist are now monthly, and the medication management is modest.

213More likely than not, in his view, there had been a diagnosable Adjustment Disorder subsequent to the accident.  There was no PTSD condition or other psychiatric condition attributable to it. There was no diagnosable unrelated psychiatric condition based on the well-documented psychological vulnerabilities.  Prior to the accident, there were mood symptoms, anxiety and stress, and there had been counselling.

214The plaintiff takes an average dose of an antidepressant and occasionally takes anxiolytic medication.  The treatment with the psychiatrist has largely faded and she receives support and counselling from a psychologist.  He thought the psychiatric injuries sustained in the accident interfered with her ability to work.  The accident acted as an anchor, to the extent that it allowed the coalescence of anxiety, fragility, depression and stress to be attributed to it.  This allowed her to delay, or give a reason for the delay of the submission of her thesis.  Her psychological vulnerabilities came forth and there was an upswelling of them, and some maladaptive coping strategies which required psychological and psychiatric treatment and attendance at a day program for a while.  She managed to undertake her studying and writing up of her thesis, but it was limited because of the psychological effect of the accident.

215He thought there was minor interference in domestic and leisure activities as a result of the accident and because of pre-existing maladaptive coping.  The worsening of the pre-existing vulnerabilities caused by the accident did interfere with the plaintiff’s ability to engage in domestic and leisure activities to a mild degree. 

216Her need for psychological and psychiatric treatment has now faded.  In his opinion, the current antidepressant medication should continue for six months before review by her general practitioner, with the likely result it can be reduced and eventually ceased.  The psychological treatment is supportive and termination of it should take place over the next three or four months.  There is no ongoing need for psychiatric treatment.

217Professor Doherty was asked to provide a further report, having been provided with Dr Jane Power’s April 2021 report and notes, Dr Morsley’s reports of 1 June and 3 September 2021, Dr Serry’s May 2021 report and additional clinical records at Monash University Health and Dr Power’s clinical records.

218He was not given any of the plaintiff’s affidavits.

219This additional material did not change his opinion.  It confirmed his view about the significant pre-existing psychological vulnerabilities and the mild symptoms of traumatisation and adjustment that occurred after the accident.

220There are significant non transport accident related issues occurring before that accident, and they continued after, particularly in regard to the plaintiff’s relationship with her parents, and also the relationship with the partner she had at the time of the accident. 

221It was clear from the additional supply of material that the traumatisation features faded away reasonably quickly. The plaintiff was back on a bus and public transport by late 2018.  She would not meet the usual clinical criteria for a diagnosis of PTSD, there being a requirement of a traumatic experience of significant note.

222The DSM-5 criteria for PTSD requires the exposure to actual threat and death, serious injury or sexual violence, which did not happen in this case.  The nature of the accident, physical injuries sustained, and threat to her personal security, were not at the level to meet the essential criteria of PTSD.  There was also not the clinical criteria for ICD-11, which included a response to an exceptional threat or catastrophic event or situation which was likely to cause a pervasive distress in almost anyone.

223While the treating psychiatrist mentioned the plaintiff had a consistent report of symptoms found in PTSD, the essential severe traumatic experience must be the cause of such symptoms for a PTSD diagnosis to be made.  It did not occur in this case.  It should be noted that the treatment the plaintiff received is treatment for personality factors, especially of mood instability, and the focus was not the treatment for PTSD.  She has no day programs to learn DBT techniques and the like.

Overview

224There is no dispute the plaintiff suffered a psychiatric injury as a result of the accident.

225Her credit was not in issue.  In my view, the plaintiff was a truthful witness who did not exaggerate her level of psychiatric difficulty.

226The real issue in this application is whether any consequences of her psychiatric impairment reach the high threshold of “severe” and are long term as at the date of hearing.

227It was not suggested that pre accident, the plaintiff had a psychiatric condition or that this was an aggravation case. She did, however, have a vulnerable personality/psychological vulnerability, as noted by all psychiatrists involved in this case. 

228I accept that leading up to the accident, the plaintiff was a high achieving, very busy, relatively young academic, who has had some discrete attendances on a university counsellor for some personal issues and no treatment whatsoever in the nine months leading up to the accident.[55] 

[55]T96

229Prior to the accident, she received limited treatment from Mr Walton in 2016 and 2017 for family and relationship issues, the last occasion being nine months before the accident.  She was then not only doing her thesis, but she was also tutoring.[56]

[56]T95

230She saw university general practitioner, Dr Campisi, in 2017 and 2018 for various physical conditions, but never for any psychiatric issues.[57]  

[57]T95

231The plaintiff did, however, take special leave and required extensions for completion of her thesis.  Having commenced her thesis in October 2012, the initial completion date was late 2016; however, as at the said date, she had not submitted it and it was due a fortnight later, on 12 May 2018.

232She had earlier been granted special leave to go to China in early 2015 and 2016. She was given an extension to write a paper for a conference in San Francisco (December 2016 to February 2017) and special leave to do an overseas internship (September 2017 to February 2018).

233The plaintiff agreed, however, that earlier in 2017, she required an extension because of difficulty concentrating due to family relationship issues.[58]

[58]Mr Lester’s July 2017 letter

234While the thesis was due two weeks after the accident, she did not come to the Court saying “but for the accident I would have finished it in two weeks”. She believed she would have finished it at the end of the year.[59]  This did not happen due to her difficulties concentrating post-accident, with her candidature withdrawn in good standing by the University in late 2018.

[59]T94

Diagnosis

235I accept the plaintiff presently has a psychiatric condition referable to the accident, in relation to which a range of diagnoses have been proffered.

236To the lower end of the range,  Professor Doherty thought it was more likely than not there had been a diagnosable Adjustment Disorder subsequent to the accident.  There was no PTSD condition or other psychiatric condition attributable to it.  There was no diagnosable unrelated psychiatric condition based on the well-documented psychological vulnerabilities. 

237Dr Serry diagnosed a moderately severe Chronic Adjustment Disorder with anxious features and with significant features of traumatisation directly related to the accident, which remained a contributing factor. 

238Treating psychiatrist, Dr Worsley, thought the symptoms are very much of a PTSD nature, including re‑experiencing phenomena, phobic avoidance of public transport, vigilance and emotional blunting plus comorbid, depressive and anxious symptoms.  The plaintiff also has traits of a vulnerable personality which can have some overlap with symptoms of PTSD, as can the treatments.

239Accordingly, Dr Worsley is the only psychiatrist who diagnosed PTSD.  Treatment suggested by her at Epworth focussed on that condition.  Dr Serry described “traumatisation” and Professor Doherty was strongly of the view that the plaintiff did not meet the DSM criteria for this condition.

240While I am not required to find a specific diagnosis for the purposes of this application, I prefer the Adjustment Disorder diagnosis shared by Dr Serry and Professor Doherty, to the PTSD found by Dr Worsley, given the absence of essential criteria for this diagnosis – exposure to actual threat or death or serious injury or sexual violence[60] – as Professor Doherty explained.

[60]DSM-V

Consequences

241Counsel for the defendant largely attributed any ongoing psychological difficulties the plaintiff had with her work and study since the accident to her personal issues with her parents and then boyfriend.

242It was submitted there were many consultations with the psychiatrist at Epworth about family issues, and also the boyfriend.[61] These were ongoing issues particularly heightened in her mind when she was seeing those treaters.[62] 

[61]T82

[62]T86

243Counsel also relied on Dr Power’s report and the “NB” comment about considerable issues involving the plaintiff’s relationship with her partner that she did not want to disclose.[63]  It was submitted in these circumstances, the Court could more readily accept evidence to the contrary, such as Professor Doherty.[64]

[63]T78

[64]T79; O’Donnell v Reichardt [1975] VR 916

244While issues with her family and her now ex-boyfriend have continued to some degree since the accident and been the subject of some of the counselling, in my view, the plaintiff’s accident-related psychiatric condition is the main cause of her current difficulties.  The need for psychiatric treatment and medication does not result from family/relationship issues and has only been present since the accident. Those personal issues were present before the accident and did not interfere with her high level of intellectual functioning. 

245I accept the plaintiff continues to suffer from a range of psychiatric problems as she has recently deposed in some detail, largely based around her intellectual capacity to understand and absorb information, and concentrate and focus on particular tasks for extended periods. Issues with sleep have continued although improved to some extent, requiring less medication.

246She also deposed to thoughts of self harm and suicide, difficulties travelling on public transport and panic attacks.

247However, it seems suicidal ideation or thoughts of self harm were last noted by Dr Power in 2018, there being no mention of these issues in her recent report or the recent report from Dr Worsley.  When seen in September 2019, Dr Serry noted the plaintiff reported suicidal thoughts in 2018 and she complained of intermittent suicidal thoughts when seen in May this year.  There was no mention of these issues by Professor Doherty on his 2021 examination. 

248The plaintiff’s ability to use public transport has improved but she still avoids bus travel as much as possible.  She was able to travel to Monash by bus on one occasion before the recent lockdown.

249The plaintiff described being “panicky” outside her comfort zone.  Having a meeting at work or solving problems can trigger it.  She had recently had what was submitted to be a panic attack the week before the hearing when she had to call Dr Power in some distress about an upcoming work presentation.[65]  Complaints of this nature did not feature in her treaters’ recent reports.  Professor Doherty noted she told him that she had panic attacks but they are not evident now.  

[65]T103

250More significant issues at present relate to her level of intellectual functioning –  her ability concentrate and focus now being significantly limited compared to her pre-accident level of functioning. 

251Having been provided with the plaintiff’s very detailed recent affidavits, both Dr Worsley and Dr Serry considered that the concentration and occupational deterioration from which she now suffers are due to her accident-related psychiatric condition. 

252Dr Worsley thought this was very common in PTSD and was an unfortunate but natural consequence of that condition, and was often compounded by anxiety and depression that generally accompanied it.[66]

[66]T98

253While Dr Serry did not diagnose PTSD, in his view, ongoing cognitive complaints, particularly in terms of concentration, related directly to the plaintiff’s psychiatric state.[67]  He had available the detailed affidavits when providing his supplementary report.   

[67]T101

254Professor Doherty did not have these affidavits or any history from the plaintiff of the type of problems she deposed to.  His ultimate opinion was based on a much less significant level of complaint, with very limited reference to these issues noting her memory and concentration were “so and so”.  He thought she had recovered, noting she reported she told him she had recently finished her PhD and that she should be happy to put that behind her.

255It is not surprising with these relatively minor complaints that his diagnosis was to the lower end of the range and understandable why he thought her Adjustment Disorder had faded over time.   

Work and study

256The plaintiff described her main problem is that she is an achievement oriented person and her job requires very high level thinking.

257I accept that at present, she is not functioning at her relatively high pre-accident level when she was working on her thesis full time, tutoring and preparing papers and posters for various conferences.

258I accept that the accident has played a role in the late completion of her thesis, which, on her evidence, she had hoped to finish at the end of 2018 – the year she was particularly unwell after the accident.  Her accident injuries have also limited the amount of part-time work she has been capable of carrying out.  

259She was, however, able to travel overseas in late August 2018 although she reported to her doctors on her return that she found that experience stressful.[68] Two months later, she received second prize in a poster competition at another conference.[69]

[68]        Dr Campisi – attendance on 18 September; Dr Power – attendance on 2 October 2018

[69]        Twitter entry dated 8 October 2018 

260While it was submitted the accident had affected the plaintiff’s ability to obtain scholarships, there was no explanation as to the scholarship process or why the plaintiff did not apply after February 2018 for further funding – several months before the accident.

261Significantly however, the plaintiff has been able to recently submit the first draft and has re-enrolled at Monash. There is no suggestion that this draft will not ultimately be accepted and she will gain her doctorate.  In my view, this would not have been possible if the plaintiff was suffering from a severe psychiatric condition.

262Although she is currently working only 10 hours a week at Monash as a casual research assistant, I am not satisfied this situation will continue in the long term, after she obtains her doctorate and seeks work in that field.  While she described difficulties in her current part-time role, she obviously thought it worthwhile to finish her thesis and did not suggest she would not seek work in her specialist area. 

263Dr Worsley did not express a view as to the plaintiff’s work capacity in the long term, commenting simply that the plaintiff had some capacity for part-time work, and that her PTSD would limit her ability to work full time in the immediate future.

264Further, this is not a case where the plaintiff although active in her field before the accident, had a demonstrated a certain level of work capacity in monetary terms.

265There was also no evidence from anyone in the plaintiff’s field about career opportunities and the type of work that would be available to a PhD graduate or the difficulties she may experience in coping with that work due to her mental health problems.

Treatment

266Treatment from psychologist, Dr Power, commenced on 31 May 2018 and continued fortnightly until 17 December 2018 (22 sessions), after which the plaintiff attended Epworth.  Treatment recommenced in August 2020 and continues.

267Dr Worsley has seen the plaintiff since 2018, initially at Monash and then in her private practice at Epworth.  She thinks that the plaintiff will continue to need psychiatric and psychological support.[70] 

[70]T100

268The plaintiff commenced the skills group program at Epworth in January 2019.  Her final session of the DBT program was on 24 September 2019.

269The plaintiff continues take Lexapro of 20 milligrams – described by Professor Doherty as an average/modest dose – and occasional Valium of 5 milligrams.[71]

[71]T77

270There has been no requirement for hospitalisation or more significant treatment.

271With treatment, there has been some improvement in the plaintiff’s condition over time.

272Dr Worsley thought there had been slow gradual process since 2008 achieved with significant interventions and believed with ongoing supports the plaintiff would continue to make gradual improvements.

273In September 2019, Dr Serry thought there had been quite a substantial reduction in the severity of her psychological distress.When last seen in May 2021, he thought the plaintiff’s depressive symptoms had improved to a not insignificant extent with appropriate treatment.  Despite treatment and medication, he thought the plaintiff was likely to remain “somewhat symptomatic” for the foreseeable future.    

274Professor Doherty thought the Adjustment Disorder had faded and following treatment, the plaintiff had recovered.

Future treatment

275There is no suggestion that a higher level of treatment is likely to be required in the future.

276Dr Serry thought the plaintiff needed continuing counselling and psychotropic medications for the foreseeable future.  Dr Worsley considered the plaintiff will require the continuation of supports over the long term. 

277However, Professor Doherty thought there is limited need for further psychiatric treatment with three or four months more supportive psychological treatment and about six months further on anti-depressants of a modest level.[72] 

[72]T8

278Taking into account all the evidence, while I accept that the plaintiff has some ongoing psychological/cognitive difficulties and issues with sleep related to the accident, I am not satisfied any impairment in relation thereto is severe and long term.

279Accordingly, the application is dismissed.

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