J v D

[2022] NSWCA 147

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	J v D [2022] NSWCA 147
Hearing dates:	21 March 2022
Decision date:	10 August 2022
Before:	Leeming JA at [1]; White JA at [4]; Brereton JA at [40]
Decision:	Appeal dismissed with costs.
Catchwords:	APPEALS — Damages — Personal injury or death cases — Motor Accident — Appellant suffers atypical psychotic disorder — Appellant had pre-existing susceptibility to psychotic disorder — Whether primary judge found that the accident accelerated the development of the appellant’s psychotic disorder from 2020 to 2016 — Whether primary judge erred in finding that the accident accelerated the development of the appellant’s psychotic disorder by four years
Legislation Cited:	Civil Liability Act 2002 (NSW) s 3B(2)(e), s 32(1)
Category:	Principal judgment
Parties:	J by her tutor (Appellant) D (Respondent)
Representation:	Counsel: P E Blacket SC with B McManamey (Appellant) P J Deakin QC with N D Compton (Respondent) Solicitors: Elmassian Lawyers (Appellant) Moray and Agnew Lawyers (Respondent)
File Number(s):	2021/87464
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 55 Date of Decision: 9 March 2021 Before: Abadee DCJ File Number(s): 2014/137178

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 23 January 2012 a motor vehicle accident occurred between the appellant (J) and the respondent (D). D admitted liability through her insurer.

J commenced proceedings against D in the District Court on 7 May 2014. The particulars of J’s injury filed with the statement of claim included injury to her spine and both knees, and a Generalised Anxiety Disorder resulting in continuing disabilities of anxiety, panic attacks, shortness of breath, agoraphobia, social phobia, depressive symptoms including sleep disturbance, reduced energy, tiredness, reduced motivation, variable appetite, difficulties with concentration and loss of enjoyment of social life and interaction with friends.

There were indications of issues concerning J’s mental health before the motor vehicle accident.

The question at trial was whether J’s psychiatric condition was caused by the negligence of D in driving her motor vehicle so as to cause an accident in which J suffered physical injury.

The primary judge found that J suffered symptoms of post-traumatic stress disorder after the accident. However, the primary judge assessed the quantum of damages on the basis that “… the defendant’s negligence accelerated the development of a psychotic condition by 4 years, up to February 2016 which the plaintiff would have suffered in any event” ([235]).

On appeal, the primary issues for consideration were:

(i) whether the primary judge erred in finding that the motor vehicle accident accelerated the appellant's pre-existing vulnerability by four years (Ground 5),

(ii) whether the primary judge erred in failing to give reasons or any adequate reasons for the finding that the motor vehicle accident accelerated the development of the appellant's psychiatric condition by four years (Ground 6), and

(iii) whether the primary judge erred when he assessed damages for out-of-pocket expenses, past loss of earnings and future earning capacity on the basis that the effects of the motor vehicle accident had ceased by February 2016, when that was contrary to his finding that the development of the condition in February 2016 had been accelerated by four years (Ground 7).

Held, dismissing the appeal (per Leeming JA, White JA and Brereton JA):

As to issue (i) per Leeming JA, White JA and Brereton JA

(i) By referring to acceleration, the primary judge meant that J’s symptoms of post-traumatic stress disorder persisted for four years after the accident (from 2012 to 2016), after which J would have been incapacitated by reason of her underlying psychotic condition even in the absence of the motor vehicle accident. The primary judge did not err in reaching this conclusion (Ground 5): at [2], [3], [37], [38], [41].

As to issue (ii) per Leeming JA, White JA and Brereton JA

(ii) Ground 6 of appeal must be rejected because it proceeds on the misconceived basis that the primary judge found that in the absence of the motor vehicle accident, J’s psychotic condition would have manifested in 2020 rather than 2016 (Ground 6): at [2], [36], [42].

As to issue (iii) per Leeming JA, White JA and Brereton JA

(iii) The primary judge did not err in assessing damages on the basis that the effects of the motor vehicle accident had ceased by February 2016, as this conclusion is consistent with the opinions of Dr Cocks and Dr Allnutt (Ground 7): at [1], [3], [37], [38], [40].

Judgment

1. LEEMING JA: I agree with White JA that the appeal should be dismissed with costs. I agree with his Honour’s reasons, and add the following by way of further explanation.

2. Following a five day hearing on damages, liability having been admitted, the primary judge delivered judgment in the sum of $43,983.70, comprising past out of pocket expenses of $3,547.70, future out of pocket expenses of $8,000 and past loss of earning capacity of $32,436.00. The grounds in the amended notice of appeal that were pressed (ground 1 was general, and grounds 2, 3 and 4 were abandoned) were focussed upon language used throughout the judgment that the plaintiff’s psychological disorder was “accelerated” by the motor vehicle accident which occurred in January 2012. As White JA points out, when the judgment is read as a whole, what his Honour must have meant was that, sadly, by February 2016, the appellant would, even in the absence of a motor vehicle accident, have suffered a psychotic disorder which was destructive of her earning capacity. Thus no damages for future economic loss (or for any past economic loss after February 2016) were permitted, on the basis that the inevitable psychotic condition would have occurred after February 2016 in any event. It is true that earlier in the reasons there are apparently unqualified findings favourable to the plaintiff based on causation, which extended to statements that the schizo-affective disorder were attributable to the motor vehicle accident, notably at [209]-[211]. But those passages must be read with the latter portions of the judgment, and the orders actually made, and when that is done the sense of the judgment is clear, as White JA explains.

3. Those conclusions were well founded in the evidence. None of the defendant’s experts was required to attend for cross-examination, and the principal witness for the plaintiff, Dr Allnutt, accepted that the psychotic condition was going to occur in any event. Once that is observed, all that remains is a complaint about the absence of reasons for the identification of 4 years as the period of acceleration. But this is a case where the primary judge was entitled to do the best he could on the basis of conflicting expert evidence, bearing in mind that the issue for resolution was defendant’s contentions that all of the mental injury was either unrelated to the accident or had developed earlier, by early February 2014.

4. WHITE JA: The appellant (J) is a young woman now aged 29. It is common ground that she suffers from an atypical psychotic disorder such that, according to the primary judge, her prospects of employment in the short and medium term are “very clouded” (J [1]).

5. Because of J’s mental illness a financial manager has been appointed to manage her estate. Accordingly in these reasons I will anonymise the parties’ names.

6. The question at trial was whether J’s psychiatric condition was caused by the negligence of the respondent (D) in driving her motor vehicle so as to cause an accident in which J suffered physical injury. That accident occurred on 23 January 2012. The circumstances of the accident are immaterial. D, through her insurer, admitted liability. J commenced proceedings in the District Court on 7 May 2014. The particulars of her injury filed with the statement of claim included injury to her spine, to both knees, and also Generalised Anxiety Disorder resulting in continuing disabilities of anxiety, panic attacks, shortness of breath, agoraphobia, social phobia, depressive symptoms including sleep disturbance, reduced energy, tiredness, reduced motivation, variable appetite and difficulties with concentration and loss of enjoyment of social life and interaction with friends.

7. D admitted that she owed a duty of care to J to take care not to cause her mental harm. D did not contend that she ought not to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care in the driving of her motor vehicle were not taken (Civil Liability Act 2002 (NSW) s 3B(2)(e), s 32(1)).

8. There were indications before the motor vehicle accident of issues concerning J’s mental health. In October 2010 J was referred by a doctor from the Dee Why Family Medical Centre to a psychiatrist, Dr Richard Barnard. J was then 18 years of age, in Year 12, and embarking on her HSC. Dr Barnard reported to J’s general practitioner that:

“She gives a three year history of emotional disturbance beginning in Year 10 when she had an episode of altered state of consciousness, during which she thought she was going to faint and described it as a sort of dream-like state of not being in her body and feeling distant from reality. She was in the classroom at this time and felt estranged from her classmates, asking herself suddenly ''who are all these people?". In the wake of this she felt increasingly anxious and frankly frightened even to go outside, feeling as though she was lost. At times she noticed her hands would shake (the right more than the left). She is right-handed.

Mid-year 2010 her parents booked a holiday for her to Serbia. She noticed that she was frightened of flying, had what she called scary thoughts of the plane crashing and found herself when she arrived in Serbia thinking about ‘supernatural stuff though I don't believe in it. I would see things. For example when I was half-awake in bed one day I saw the devil's face. I felt better after an old lady in the village made some holy water for me.'

On return to Australia the difficulties continued and increased, particularly in her HSC year.

She said she felt anxious; disconnected, lacking in confidence and worried over things that she would normally never think about eg a tidal wave coming or fears about death. She became concerned about dying in her sleep and would find it difficult to fall off to sleep.

She would manage four or five hours' sleep and feel exhausted next day. She avoided social situations…

[J] would appear to be suffering from Generalised Anxiety Disorder, with episodes of panic and phobic anxiety. She also describes what appears to be dissociation.”

9. A psychiatrist, Dr Stephen Allnutt, provided three medico-legal reports after the motor vehicle accident in relation to J’s mental state. The first was provided on 1 July 2013. The particulars of J’s psychiatric injury and continuing disabilities referred to above were substantially based upon Dr Allnutt’s first report of 1 July 2013. Dr Allnutt provided further reports on 16 March 2015 and 22 March 2019. His views changed as J’s mental health deteriorated. It does not appear that the particulars of J’s injuries were updated accordingly, but no issue is taken about that.

10. In his report of 1 July 2013, Dr Allnutt opined that J’s

“…predominant presentation is one of an anxiety disorder with a constellation of anxiety symptoms characterised predominantly by an increased inner tension or feeling ‘keyed-up’ and with fluctuations in intensity in relation to this with probably breakthrough mild panic attacks characterised by episodes of shortness of breath, tremulousness.

Associated with these episodes is a preference to avoid crowded places such as shopping malls as well as city centres along with an avoidance of bringing attention to herself publicly, such as public speaking; her avoidance behaviour extends to a preference to disengage from social situations, likely also as a consequence of an increased sense of anxiety and self consciousness.

She did experience some nightmares for a period of time after the index injury but by the time that I saw her she was not experiencing nightmares; she behaviour [sic] consistent with hypervigilance; she reported increased irritability and short temperedness, a preference to avoid certain areas related to the accident and a general sense of increased vulnerability fearing a negative consequence that was unexpected or unpredictable; these symptoms would be on the spectrum of a Posttraumatic Stress Disorder, however I would not diagnose a full blown Posttraumatic Stress Disorder at this stage.

Rather, I would formulate a diagnosis as more consistent with a Generalised Anxiety Disorder as suggested by Dr Barnard with symptoms of post traumatic stress and Panic Attacks as well as Agoraphobia and some Social Phobia; in addition to this she does has [sic] depressive symptoms; in particular she has ongoing sleep disturbance, reduced energy, tiring more easily, reduced motivation, variable appetite and difficulties with concentration.

She derives from a relatively loving and supportive familial environment; she has been capable of gainful employment and committed interpersonal relationships and I would not diagnose her with a personality disorder when I saw her.

3. The relationship between condition and injuries?

At the material time of the index injury she denies experiencing significant symptoms consistent with a psychiatric illness or disorder; there was no evidence of psychiatric impairment or functional impairment; there was no evidence of significant non injury related stressors; she reports the onset of a number of anxiety symptoms relatively soon after the accident that have persisted and in my view the accident made the substantial contribution to her current mental state.”

11. After the accident, J attended hospital and was discharged on the same day. On 24 January 2012 she attended the Dee Why Family Medical Centre (J [46]). She consulted a general practitioner who prescribed painkillers and physiotherapy and referred her to an orthopaedic surgeon. A psychologist, Dr Zoran Protulipac, stated in his report of 5 May 2015 that that treatment failed to relieve her of pain and the pain caused her to develop psychological problems, namely fear and apprehensiveness towards driving, recurrent flashbacks of the accident, panic or anxiety attacks, hypervigilance, insomnia, stress, anxiety and depression. J reported that her sleep pattern was disturbed by frequent nightmares. Her general practitioner referred her to a psychologist who provided her with initial treatment. That was of no avail and she was subsequently referred to Dr Protulipac who initially assessed her on 22 January 2013. He concluded that J did not fulfil the criteria for diagnosis of post-traumatic stress disorder but diagnosed her with adjustment disorder with mixed depression and anxiety. She received 21 sessions of therapy and her treatment was terminated on 8 August 2013. Her condition had improved to some extent.

12. At the time of the accident J was a university student with part-time employment. After the accident she continued to study at university. The primary judge found that the accident impeded her studies and had a knock-on effect on her capacity to engage in casual employment ([261]). Dr Protulipac advised in his report of 5 May 2015 that, following the accident, J reported elevation of anxiety and depressed mood on days when her pain was stronger and minor relief from psychological symptoms when her pain was more tolerable. He said that some of the very prominent features of trauma continued following treatment which he attributed to her elevated anxiety following the accident.

13. J was admitted to Mona Vale Hospital on 14 July 2013 and was there diagnosed with an anxiety disorder. On 26 February 2014 she was admitted to Royal North Shore Hospital where she was brought by ambulance. The admission note stated that she was “Found in city hyperventilating feeling as though going to die. Appears anxious ?delirious, states had not slept for 4/7 – unable to say why – rambling speech, feels anxious about going to sleep, denies drugs”. On examination by a psychiatrist it was noted that she had tangential answers to questions, depersonalisation, derealisation, and disorganised thought processing. It was concluded that she needed hospitalisation to stabilise her mental state and protect her reputation. She was transferred as an involuntary patient to a mental health facility at Macquarie Hospital. The transfer in fact seems to have been made to the Manly Hospital which recorded her admission on 27 February 2014 and discharge on the same day. The hospital records reported no evidence of an acute psychosis or major disorder of mood but concern was expressed that this might be a prodromal phase of a psychotic illness with possible differential diagnoses of BPAD (bipolar affective disorder) and schizoaffective disorders.

14. Dr Allnutt provided a further report on 16 March 2015. He advised that, on further review of J, he considered she probably had chronic post traumatic stress disorder with associated panic attacks, agoraphobia and social phobia with a differential diagnosis of generalised anxiety disorder. Overall she had an anxiety disorder. He said:

“The anxiety symptoms are characterised by a prior history of nightmares, ongoing avoidance of triggers and cues that remind her of the index injury, increased psychological distress and panic attacks when exposed to cues and a reluctance to speak or think about the accident, associated with distressing emotions, increased startle response, hypervigilance (particularly, for example, when on buses or in cars), emotional distancing from others and loss of interest in her usual activities, all of which are consistent with a chronic post traumatic stress disorder with some mild amelioration of symptoms since the index injury.

The depressive symptoms are characterised by variable sleep, reduced energy and motivation, difficulties with concentration, anhedonia, indecisiveness, and loss of self esteem and reduced appetite. These depressive symptoms in my view arise secondarily from a predominant anxiety disorder.

I note that during her admission in February 2014, concerns were raised about a possible prodromal psychosis or a first episode of psychosis. This appears to have been investigated and considered by her clinicians, and ruled out. Her presentation did also raise some concern for me, however I believe that whatever "paranoid" ideation she may have is better formulated as "anxiety". In particular I could not detect any active symptoms of delusions, hallucinations, referential ideas or thoughts of external control and thus at this stage would not conclude a psychotic disorder.”

15. J had further attendances at the mental health unit of the Manly Hospital on 10 and 11 February 2016 and then for an extended period between 12 February and 29 February 2016. She had an initial attendance at the Northern Beaches Community Health Centre on 2 March 2016.

16. The report of her admission to and discharge from Manly Hospital on 10 February 2016 noted that J had been known to the mental health team for anxiety and depression since her teenage years. The admission seems to have been precipitated by relationship conflicts with two men. These events precipitated four days of crying, screaming and yelling such that the neighbours called the police who attended and recommended that she be transported to hospital. It was noted that her hysterical behaviour followed the relationship difficulties and sexual issues with an ex boyfriend and a new friend.

17. There was a further lengthy stay at the Manly Hospital mental health facility between 24 March and 15 April 2016. The mental health discharge transfer summary for that admission was summarised by a psychiatrist, Dr Christopher Cocks, who provided a report tendered by D, as follows:

“The mental health discharge transfer summary from Manly Hospital outlines [J]'s admission between 24 March 2016 and 15 April 2016. In this report it is stated that [J] had a one-day admission to a psychiatric facility in 2014 and a two-week admission to a psychiatric facility in January 2016. It is stated that [J] is suffering from symptoms including anxiety, emotional lability, disorganisation, physical aggression and thought disorder. It is stated that there is some diagnostic uncertainty regarding her mental illness. In this report it is stated that [J] presented to the Emergency Department with increased anxiety, feelings of being disconnected, detached and emotional. It is stated that her presentation at the time occurred in the context of a change in antipsychotic medication from aripiprazole to quetiapine. This medication change was initiated as [J] was suffering a movement disordered associated with antipsychotic medication called akathisia. In the context of this admission, [J] was commenced on a mood stabilising medication called sodium valproate. It is stated in this summary, completed by Dr Greta Hug, psychiatry registrar:

‘Her symptoms present a diagnostic challenge. What is clear during her first admission that [sic] her symptoms were in keeping with a psychotic disorder, on this occasion the main symptom overtly has been anxiety. [J] was able to respond to some basic behavioural interventions. She requires an ongoing period of assessment and consideration of her diagnosis by the community team’.

It is stated in the discharge summary that [J] was stressed, drinking approximately three litres of water each day and concerned about her future and finishing university. In the report it is stated that [J] described feeling pain in her arm when somebody would sit next her stating ‘It is weird being able to perceive other people's vibes’. At this stage the psychiatric team looking after [J] consider that she presenting [sic] with a prodromal phase of a psychotic illness. Differential diagnosis considered in this context are bipolar affective disorder and schizoaffective disorder.”

18. Dr Cocks summarised her further treatment and admissions in 2016 as follows:

“In addition to what has already been outlined in this report, this summation of care documents that [J] continues to be prescribed the atypical antipsychotic medication called quetiapine by the community mental health team. The dose of this medication throughout 2016 has been reduced due to concerns that [J] is suffering from excessive sedation. Key features identified in this report are outlined below:

• In September 2016, it is stated that the family contacted the mental health team concerned about [J]'s hysterical crying for hours. It is stated that [J]'s reported an episode where she logged onto YouTube and had a feeling of being emotionally connected with the computer and described giving her soul to the computer. It is stated that she had an experience for a two-week period where [J] was physically drained and could not walk properly. It is stated that she sat staring at a spot on the floor.

• In November 2016, it is stated that [J] presented to the Emergency Department "feeling out of body, sensitive, like I'm going to orgasm without doing anything". It is stated that ‘Her thoughts were confused, rambling, louder, feeling hyperaware, feels her head is about to pop". It is stated that [J] was experiencing an intense feeling of being alive and present in the moment with a sudden feeling of heaviness in the legs followed by paroxysmal feelings of ecstasy and sexual excitement. It is stated that her thoughts were racing and she was experiencing anxiety that her mother's and sister's eyes looked demonic. It is stated that [J]'s mother described her as anxious, agitated, shivering and then fainting with a loss of consciousness for a few seconds. At this stage her treatment team advised a trial of a mood stabilising medication called sodium valproate or a trail of the atypical antipsychotic medication called lurasidone. An admission to the psychiatric emergency care centre is arranged at this time.

• In December 2016, it is documented that [J] had an eight week admission to the East Wing psychiatric facility at Manly Hospital. It is stated that [J] presented with a feeling of being present in her body with racing thoughts and a feeling of anxiety and sexual arousal centred in the legs, genitalia and chest. It is stated that [J] was thought disordered and her speech was rapid and pressured. It is stated that [J] was slow to recover in hospital with ‘extreme thought disorder, bizarre somatic delusional ideation, feelings of sexual arousal which seemed more prominent in the premenstrual period, tension in her body and shaking from head to toe and her mind would go numb, tongue swelling that made her tongue protrude for over two hours, feeling like her eyes were rolling up in her head’. Due to concerns that [J] was suffering a dystonic reaction to psychotropic medications her antipsychotic medications were ceased during this admission.”

19. Dr Grant Sara, a psychiatrist with the Beaches Early Intervention Centre, provided a report on 8 February 2017 in which he stated:

“…Over the last 9 months [J] has continued to experience a significant ongoing mental health condition. This has included features of severe anxiety, disorganisation, depression, and problems functioning independently. The features of this illness have been atypical, however her extent of disability and disorganisation have been severe. Overall we have seen her as suffering from a psychotic disorder.

…

She becomes very anxious and overwhelmed with even moderate stressors. She finds it difficult to describe her symptoms and experiences in a linear and consistent way.”

20. J had further attendances at Manly Hospital and the Northern Beaches Hospital in 2017 and 2019. In his report of 15 February 2019 Dr Cocks stated:

“From the evidence made available, in my opinion, [J] has suffered recurrent and severe episodes of psychosis. There is evidence that she had suffered a disorder of thought form with circumstantial and tangential thought patterns. [J] is first diagnosed with a psychotic episode following her assessment at Parkview Psychiatric Unit on 27 February 2014. Dr Grant Sara, Consultant Psychiatrist, who oversees her community treatment of [J] between 2014 and 2017 concludes in his report dated 8th February 2017 that [J] suffers from a psychotic disorder. Throughout the clinical documentation there is evidence of psychotic symptoms with by [sic] [J] believing that she can ''perceive others vibes" [sic] and that she gave her soul to the computer.

There is evidence of paranoid delusions with the belief that her mother and sister had demonic eyes. [J]'s episodes of psychosis have been severe such that she has required recurrent admissions to mental health facilities including treatment under the Mental Health Act. [J] has required treatment with high dose oral antipsychotic medication.

Furthermore there is mood instability as a consistent feature of [J]'s presentation.

At the time that I assessed [J] she presented with an array of depressive symptoms. Historically she has also presented with symptoms of mania evident by a reduced need for sleep, racing thoughts, rapid speech, disorganisation and sexual disinhibition. There is clinical documentation that medical practitioners have advised treatment with a mood stabilising medication. The differential diagnosis of bipolar disorder and schizoaffective disorder has been contemplated by her treating team.

Diagnostically, in my opinion, [J] meets criteria for Schizoaffective Disorder.

This is a psychiatric illness as classified under the current DSM-V. My opinion is based on the clinical information made available and from my assessment of [J]. In my opinion this diagnosis is justified in that [J] has suffered repeated episodes of psychotic illness characterised by delusions, hallucinations, disorganised speech and disorganised behaviour. During such episodes [J] has displayed symptoms of a major mood disorder with symptoms of depression, mania and hypomania. [J] also displays marked functional decline over the course of her illness with impairments in occupational functioning, interpersonal skills and self-care.

In my opinion [J] does not meet criteria for an Adjustment Disorder. [J] has suffered a severe mental illness that has been functionally impairing for her. Her clinical history is not characteristic of an adjustment disorder. [J] has evidence of emotional and behavioural symptoms that pre-date the claimed injury. Individuals with adjustment disorders do not suffer episodes of psychosis and do not experience the degree of mood fluctuations suffered by [J].

In my opinion [J] does not suffer from Post-Traumatic Stress Disorder. At the time I assessed [J] she strongly identified the motor vehicle accident as being causative to her psychological difficulties. She did not report any pre-existing mental illness despite evidence of treatment under the care of Dr Barnard. Whilst she reported symptoms associated with post traumatic stress there is a surprising absence of reporting of such symptoms in her clinical file. Despite recurrent longitudinal assessments of [J] the inpatient and outpatient treating teams do not consider a diagnosis of post traumatic stress disorder. From a review of the clinical information [J] does not report consistent symptoms of post traumatic stress disorder in her recurrent presentations to mental health services. Therefore whilst [J] clinically in my assessment gave the impression of suffering symptoms of post traumatic stress this is not reflected in the extensive clinical documentation provided.

In conclusion [J] suffers from a chronic psychotic illness with an affective component. Her illness has been functionally impairing and this is characteristic of a chronic psychotic illnesses [sic] such as Schizoaffective Disorder. There is evidence that she was suffering from significant psychological difficulties that predated the claimed injury.

In my opinion, the claimed injury was not a significant event and cannot be considered as having a substantial impact, if any, on the trajectory of [J]'s psychological and psychiatric difficulties. In my opinion, it is reductionistic to attribute the extensive and severe psychological difficulties suffered by [J] to the motor vehicle accident that occurred in January 2012. Her condition is much more complex and, in my opinion, the genesis of her condition is multifactorial. In my opinion, one cannot attribute the severity of her symptoms and her functional impairment to the motor vehicle accident in January 2012.”

21. Dr Allnutt provided his third report on 22 March 2019. He said:

“At this stage diagnosis is difficult.

Review of the documentation suggests she has episodically become significantly disturbed in her mental state, with symptoms of derealisation, depersonalisation, rapid thoughts, thought disorder, pressured speech, increased sexual behaviour, increased energy, poor judgment and somatic preoccupation - all symptoms that can be found in people with chronic psychotic disorders and with bipolar affective disorder. She has been diagnosed with an unspecified non-organic psychosis.

Although I cannot rule our bipolar disorder or a chronic psychotic disorder definitively at this stage, I would not make this diagnosis, particularly given the lack of sustained psychotic like symptoms.

In addition, given the absence of a significant pre-existing mental condition by the time of the index injury, the proximal onset of PTSD symptoms following the index injury, and in the context of PTSD, the emergence of significant functional decompensation with psychotic-like and hypomanic-like symptoms - my opinion is that your client has developed a severe PTSD and major depressive disorder with periods significant decompensation [sic], to the extent that she can become psychotic and manifests extremes of behaviour that might appear to be hypomania but are manifestation of extreme anxiety.

PTSD is a mental condition that can manifest psychotic symptoms when of greater severity and at this stage that remains my diagnostic formulation.”

22. Both Dr Cocks and Dr Allnutt saw J but when Dr Allnutt asked about driving and J said that she felt tired when driving and would get panic attacks, at that stage of the interview, she said she was getting tired and wanted a break and he stopped the interview with her and continued with her parents.

23. In a later report of 17 July 2019, Dr Cocks considered additional material, including documentation from the Northern Beaches Hospital file as well as Dr Allnutt’s opinion of 22 March 2019. Dr Cocks stated:

“There is evidence that [J] continues to experience mood instability. She requires crisis management, admission to hospital via Police and has become agitated to the extent of assaulting her general practitioner. Despite diagnostic uncertainty she remains treated on an antidepressant medication alongside treatment with an antipsychotic medication.

Her illness remains severely functionally debilitating for her.

The Northern Beaches Hospital File reflects what Dr Allnutt identifies in his report dated 22 March 2019 under Question 2 on page 9:

‘Review of the documentation suggests she has episodically become significantly disturbed in her mental state, with symptoms of derealisation, depersonalisation, rapid thoughts, thought disorder, pressured speech, increased sexual behaviour, increased energy, poor judgement and somatic preoccupation - all symptoms that can be found in people with chronic psychotic disorders and with bipolar affective disorder. She has been diagnosed with an unspecified non-organic psychosis. Although I cannot rule out bipolar disorder or a chronic psychotic disorder definitely at this stage, I would not make this diagnosis, particularly given the lack of sustained psychotic-like symptoms.’

I agree with Dr Allnutt's summation of the symptoms suffered by [J]. I respectful [sic] disagree with Dr Allnutt's conclusion that [J] cannot be diagnosed with a chronic psychotic illness. As I identified in my original report, Dr Grant Sara (Consultant Psychiatrist) who treats [J] between 2014 and 2017 concludes that [J] suffers from a psychotic disorder. Furthermore she has had recent episodes of psychosis with:

•    Disorganised speech (thought disorder, tangential thought patterns, racing thoughts, rapid speech)

•    Grossly disorganised behaviour (screaming, agitation, appearing perplexed and suspicious)

•    Paranoid Delusions (being able to perceived other peoples [sic] vibes, believing her mother and sister are demonic)

•    Hallucinations (seeing the eyes of her mother and sister as demonic, seeing the devil's face)

•    Negative symptoms (Marked functional decline and social withdrawal).

From my clinical experience these are all symptoms of a chronic psychotic illness. In my opinion, [J] meets the criteria for Schizoaffective disorder. She has suffered recurrent episodes of psychosis with mood instability. She remains functionally impaired, dependant on the support of her parents and the local mental health services. She continues to require treatment with antidepressant and antipsychotic medication.

In my opinion [J]'s presentation is not characteristic of post-traumatic stress disorder. From my clinical experience patients with PTSD do not present with the cluster of symptoms and functional impairment exhibited by [J]. Furthermore the clinical documentation does not reflect a diagnosis of PTSD.

Individuals with PTSD suffer trauma-related psychological symptoms such as recurrent, involuntary or intrusive memories of the trauma. This can include nightmares and flashbacks of the trauma. They can experience dissociative reactions in which the individual feels or acts as if the trauma event is recurring. Psychological distress is experienced with any cue associated with the trauma. Avoidance behaviour, hypervigilance and negative alterations in cognition and mood emerge as consequence of the trauma.

From my clinical experience individuals with PTSD do not present with the cluster of symptoms experienced by [J]. They do not characteristically present with thought disorder, increased sexual behaviour, increased energy, paranoid delusions, perceptual disturbances and functional impairment of the nature exhibited by [J].

Dr Barnard's medical correspondence, dated 27 October 2010, is significant. He identifies that [J] has a three-year history of emotional disturbance beginning in Year 10 where [J] suffered episodes of an altered state of consciousness where she thought she was going to faint and described being in a dream-like state. Dr Barnard identifies that [J] experienced a feeling of being out of her body and distant from reality.

[J]'s [sic] reports to Dr Barnard her belief that she could see the devil's face. There is evidence that she has a fear of dying in her sleep. There is evidence that she suffers from episodes of panic with 'phobic anxiety'. These symptoms identified by Dr Barnard predate the claimed injury. Many of the symptoms identified by Dr Barnard in 2010 persist to date.

In summary, in my opinion, [J]'s mental illness is complex. I appreciate the diagnostic uncertainty with regards to her condition. From my assessment of [J] and my review of the extensive clinical documentation, I have formed the opinion that she suffers from a chronic psychotic illness with an associated component of mood instability. In my opinion, her presentation meets the criteria for a diagnosed condition of schizoaffective disorder.

In my opinion, [J]'s chronic mental illness is not causally related to the claimed injury. As I have outlined in my report dated 15 February 2019, in my opinion, it is reductionist to relate [J]'s significant mental health-related problems to the subject accident.”

24. Dr Cocks was not required for cross-examination. Dr Allnutt was.

25. In cross-examination, Dr Allnutt said that he had no difficulty with a diagnosis of schizoaffective disorder but said that there was evidence of ongoing symptoms of post traumatic stress relating back to the motor vehicle injury. That had probably now been overborne by her psychotic disorder but elements of post-traumatic stress had been evident throughout. He accepted that it would be correct to say that “…at least from 2016 onwards, the schizo-affective disorder is the predominant cause for the decline in function that has been seen since”.

26. He agreed that the schizo-affective disorder was highly likely, if not certain, to have occurred in any event.

27. He gave the following evidence:

“Q. So, looking at it in terms of what was likely to happen in any event, had this accident not occurred, that [J] would have likely proceeded to develop a similar form of schizo-effective disorder to that which she now presents with?

A. Look, it is difficult to know whether a person is going to, in retrospect, whether a person would have gone on to develop a condition if there is an intervening stressor but schizo-effective disorder can be triggered by stress. So if you have a pre-existing disposition to it, or an inborn propensity to it, the deterioration can be triggered by a stressor and, in this case, the difficulty is, is there a coincidental decline or did the accident make a contribution to that decline and trigger the schizo-effective disorder.

…

Q. Now, after 2016, where there is a significant decline in her functioning, that significant decline is prefaced by, and likely caused by, features unassociated with the motor vehicle accident?

A. Yes, the proximal stressors were unrelated to the motor vehicle accident, yes.”

28. He also said that

“…When the psychotic symptoms emerge, they’re then, as I said earlier, everything becomes overborne. The psychosis takes over from everything. The post traumatic stress symptoms that might have been there, or anxiety symptoms that might have been there get all mixed in the mix and it becomes even more difficult to tease things out because symptoms all overlap but I recall when I saw her in 2019 the minute I started talking about the accident she left the room … I see this as a gradual decline in her mental state over time with ongoing lingering symptoms of a post traumatic nature that are referable to the accident.

…

When she saw myself, very close to the time she saw Dr Cocks, she was an extremely disturbed girl. I don't think, personally, I don't think she's capable of thinking, I'm going to make this up. She was saying these things because she is actually experiencing them, that is my view. That's not to say that she doesn't have an underlying psychotic disorder but the symptoms linger on and having had the accident, there was deterioration and ultimately, she started having schizo-effective. So, to me, this not an either/or case. As we stated, it's an extremely difficult diagnostic case but it's also a difficult causation case and when mental illness, and the one thing that rolls into the next and for a person who has a vulnerability to a condition, and they experience a stressor, they become more vulnerable to that condition. So, I think that she had a pre-disposition to developing a chronic psychotic disorder, she had an accident that aggravated her anxiety and after that there has been a decline in her mental state and a psychotic disorder has emerged which has basically clouded the clinical picture but I still think there are post-traumatic stress systems that are coming through.

…

Q. Would it be fair to say that what I've divined from what you're trying to help his Honour with is this; that in your opinion if your formulation is accepted that there may have been some bringing forward of the time at which the psychosis manifested itself in this destructive manner earlier than it might otherwise have?

A. There may have been yes.

Q. But it's your view is it not that that psychosis was more likely than not to manifest regardless of the accident?

A. Yes. But she may not have had some of the qualities of that psychosis for the accident because there are symptoms referrable to the accident for example when I saw her in 2015 what struck me was the minute I started speaking about the accident she removed herself. At that point when I started asking her about her driving and the accident she said "I don't want to speak about this anymore." And she left. And I didn't pursue it because I'd been informed that she was very sensitive to that. So and people have referred to a sensitivity to the accident so there are elements in her psychosis that relate to the accident.”

29. The primary judge found that J became fully incapacitated from employment from February 2016 ([261]). He also found that:

“…the plaintiff’s psychotic condition was such that, even in the absence of the motor vehicle accident, she would have been incapacitated. The defendant is not liable for loss or damage caused by a psychotic disorder beyond the point which its negligence had brought forward.” ([262]).

30. His Honour found that J’s earning capacity was destroyed for reasons unrelated to the motor accident by the end of February 2016 ([266]). He assessed damages on the basis that D was responsible for J’s post traumatic stress disorder caused by the accident that adversely affected her earning capacity and contributed to her incurring medical expenses up to, but not beyond, 2016.

31. D did not file a cross-appeal against that assessment.

32. The primary judge found, consistently with the opinion of Dr Allnutt, that after the accident, J suffered symptoms of post traumatic stress disorder. Properly read, his Honour’s reasons were that those symptoms which were referable to the accident continued up to 2016 until they were overborne by the psychosis that was not referable to the accident. That was the basis upon which his Honour’s orders were made. However, in describing the orders, the judge said that “…the defendant’s negligence only accelerated (to February 2016) a psychotic condition that would have been sustained anyway, even without the defendant’s negligence” (at [268]).

33. Earlier in his reasons, the judge said:

“[232] …The PTSD symptoms have facilitated the onset of the plaintiff’s atypical psychotic disorder, but even without the accident, a psychotic disorder of some highly disabling kind, relevantly, affecting the plaintiff’s earning capacity, would still have occurred. In that sense, the motor accident may be seen as accelerating a psychotic condition, of some kind, that would have happened anyway.

...

[234] But contrary to the defendant’s submission, I do not trace the moment where the psychotic condition could be said to be truly apparent to February 2014. True it was that she was hospitalised for two days, but in the context of her history, that was a relatively isolated occasion. I consider that the psychotic condition may be said to have been more established by the end of February 2016, after a protracted period of hospitalisation in Manly Hospital, followed by extended care with the Beaches Early Intervention Centre.

[235] In short, I find that the defendant’s negligence accelerated the development of a psychotic condition by 4 years, up to February 2016 which the plaintiff would have suffered in any event. The damages award she may recover relating to the incapacity to earn caused by the psychotic disorder against the defendant need to reflect that finding.”

34. The judge’s description of the psychotic condition as having been “accelerated” by the defendant’s negligence was an unfortunate choice of words.

35. J’s grounds of appeal against the assessment of quantum of damages were:

“6. The trial judge erred when he failed to give reasons or any adequate reasons for the finding that the motor vehicle accident accelerated the development of the Appellant's psychiatric condition by four years.

7. The trial judge erred when he assessed damages for out-of-pocket expenses, past loss of earnings and future earning capacity on the basis that the effects of the motor vehicle accident had ceased by February 2016 when that was contrary to his finding that the development of the condition in February 2016 had been accelerated by four years.

5. Trial judge erred in finding the subject motor vehicle accident accelerated the Appellant's pre-existing vulnerability by 4 years.”

36. The reference to “acceleration” of the psychotic condition suggests, as the grounds of appeal assert, that the judge found that, but for the motor vehicle accident, J’s psychotic condition which manifested itself in 2016, would rather have been manifested in 2020. There was no evidence to support such a conclusion. Hence J submitted that the evidence left open the possibility that it could have been many years before the psychotic disorder would have developed in the absence of the motor vehicle accident.

37. But reading the reasons of the primary judge as a whole against the evidence of Dr Cocks and Dr Allnutt, including his Honour’s findings referred to above, it is clear that by “acceleration” the primary judge did not mean that J’s psychotic condition had been brought forward by four years from when it would otherwise have occurred. Rather he meant that the symptoms of post traumatic stress disorder only persisted for four years after the accident up to 2016, after which she would have been incapacitated by reason of her underlying psychotic condition. His Honour found (at [243]):

“…the psychotic condition, which has destroyed her earning capacity, took hold even without the PTSD symptoms caused by the accident by the end of February 2016.”

38. There was no error in his Honour’s reaching that conclusion. It is consistent with the opinion of Dr Cocks, given his Honour’s unchallenged finding that J suffered post-traumatic stress disorder as a result of the accident (although Dr Cocks disputed this and his opinion was unchallenged). It is also consistent with the opinion of Dr Allnutt.

39. For these reasons I would dismiss the appeal with costs.

40. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by White JA, with which I agree.

41. The basis of the primary judge’s finding is clear, if imperfectly expressed. It is that, by February 2016, J would have been disabled by the psychosis from which she suffered for other causes, regardless of the motor vehicle accident the subject of her claim. Unhappily, prior to the motor vehicle accident, J was already predisposed to schizo-affective disorder, which would become disabling. The motor vehicle accident did not cause her schizo-affective disorder, but at the time of the accident that disorder was not yet disabling. The overlay of post-traumatic stress disorder following the accident had the consequence that during the period 2012 to 2016 she was more disabled than would otherwise have been the case, during that period. But by 2016, she would have been disabled regardless; any remaining effects of her PTSD were “overborne” by those of her schizo-affective disorder.

42. This was not a finding that the psychosis was accelerated from 2020 to 2016. The four years to which his Honour referred is the four-year period 2012 to 2016. Submissions complaining of an inadequacy of reasons and failure to have regard to the period 2016 to 2020 proceeded on the misconceived basis that his Honour was referring to the period 20126 to 2020, and are untenable.

43. I agree with the orders proposed by White JA.

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Decision last updated: 10 August 2022