Kain v Transport Accident Commission
[2024] VCC 1925
•3 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-06240
| CATHERINE KAIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October, 1 and 8 November 2024 | |
DATE OF JUDGMENT: | 3 December 2024 | |
CASE MAY BE CITED AS: | Kain v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1925 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric injury – motor vehicle accident – impairment consequences
Legislation Cited: Transport Accident Act1986 (Vic), s93
Cases Cited:Petrovic v Victorian Workcover Authority [2018] VSCA 243; Nikolic v Transport Accident Commission [2020] VSCA 148
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Mr A Kleiman | Slater and Gordon Lawyers |
| For the Defendant | Ms F Spencer SC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1On 11 July 2019, Catherine Kain (“the plaintiff”) was a passenger on a bus travelling from Adelaide to Melbourne.
2The plaintiff was travelling to Melbourne for a review meeting at the University of Melbourne, where she was then enrolled in a doctorate (PhD). She was planning to seek an extension of the scheduled completion date for the PhD.
3But she never made it to the meeting because the bus was involved in an accident on the Western Highway, near Horsham, Victoria (“the accident”).
4At the time of the accident, the plaintiff was about four years into research and writing a PhD. Fast forward to now, she is yet to finish the PhD and is now a lapsed candidate.
5The central issue in this proceeding, is whether the failure to complete the PhD is because of a “serious injury” caused by the accident, or whether, regardless of the accident, it was “just too big a task for her to get through”.[1]
[1] Transcript (“T”) 230, Line (“L”) 27-28.
This proceeding – the injury said to be serious
6This proceeding is a “serious injury” application brought pursuant to s93 of the Transport Accident Act 1986 (Vic.) (“the Act”).
7The plaintiff claimed to have suffered serious psychiatric injury within the meaning of the definition contained in s93(17)(c) of the Act, namely a “severe long-term mental or severe long-term behavioural disturbance or disorder”.
8Broadly, the plaintiff claimed that the psychiatric condition caused impairment consequences, including impairment of cognition, that met the test of “very considerable” in the sense of being “severe”.
9The claimed psychiatric impairment was said to arise from a diagnosed psychiatric condition, for example, as diagnosed by Dr David Weissmann, consultant psychiatrist, as a moderate chronic PTSD; at least moderate chronic adjustment disorder with anxious and depressed mood; and moderate cognitive dysfunction syndrome – incorporating a mild acquired brain injury but with a moderate contribution from so called psychological factors.[2]
[2] Joint Court Book (“JCB”) 748
10The plaintiff said that the psychiatric injury was a “very considerable” consequence to her because it had caused a subtle decline in her cognitive function, for a person who was functioning at the very highest level before the accident and who had now slipped below that level.[3]
[3] T 286, L12-14
11The claimed impairment consequences mostly focussed on her inability to complete the PhD, together with some other consequences, for example as recorded by Dr Weissmann to include emotional distress, a claimed decline in her current employment, and the need for monthly psychological treatment.[4] But of note the plaintiff has not had any formal psychiatric treatment and no real use of medication.
[4] JCB 745
12The parties each tendered affidavits, medical reports, clinical records and relevant documents from a joint court book. The defendant tendered some additional documents, not in the court book, related to the plaintiff’s work and study. The plaintiff gave oral evidence, over several days, as to the contents of her affidavits and matters arising from the tendered evidence. The parties made oral submissions.
13I have considered the evidence and the parties’ contentions, which I shall refer to as is necessary in these reasons.
14The relevant legal principles are broadly not in dispute. To be entitled to commence a common law proceeding the plaintiff must establish that the identified pain and suffering and pecuniary loss consequences (in isolation, or in combination) from the claimed injury are productive of a “very considerable” consequence.
15Further, the parties agree that the test for “serious injury’ based on a psychiatric injury is a higher threshold than for a physical injury because the condition must be “severe”, although how much higher is an issue in dispute.
Background
16Briefly, by way of background, the plaintiff is now 60 years of age. She is the mother of twin children, a boy and a girl who are now aged in their early twenties.
17When her children were just ten months old, the plaintiff’s husband suffered a stroke. Her husband’s health has been something of an ongoing issue and one which has impacted her own mental health.
18As part of his rehabilitation, the plaintiff’s husband enrolled in university study. In conjunction with her husband’s rehabilitation and enrolment, the plaintiff enrolled in the same property degree as him at the University of South Australia. It transpired that she excelled at higher education.
19The plaintiff completed her degree at the University of South Australia. She was awarded a high mark and a scholarship to work and study in China.
20The plaintiff and her family travelled to China in 2014 as part of her scholarship. They then returned to Adelaide in 2015, and she subsequently obtained employment at a university and commenced a PhD, while juggling family and other stressors.
The accident
21As mentioned, on 11 July 2019 the plaintiff was a passenger travelling on an overnight bus (“the bus”) from Adelaide to Melbourne, for a review meeting at the University of Melbourne for the PhD that she was undertaking. The accident occurred at approximately 2 am when the bus collided with several trailers that had detached from a B Double truck and were blocking the highway. It was an accident of some force and tragically the bus driver was killed. The police incident report described a chaotic scene after the accident as passengers, including the plaintiff, tried to get out of the bus.[5]
[5] JCB 403
22In an affidavit she swore on 25 October 2021, the plaintiff described in detail her experience of the accident, based on her memory and contemporaneous notes made by her.[6] Her experience of the accident was not disputed. I accept it was a violent and frightening accident.
[6] JCB 19
23The defendant accepted that the accident caused the plaintiff to suffer some type of psychological/psychiatric condition. The dispute was whether that condition had now resolved, or if it persisted, whether it produced ongoing impairment consequences sufficient to meet the test of “serious injury” for a psychiatric injury.
24The plaintiff had also claimed that she had also suffered a serious physical injury by way of a mild acquired brain injury, but she abandoned reliance on that injury during the hearing of this proceeding, despite the evidence in her first affidavit that she had been diagnosed with a mild brain injury and that the impact from that had been “terrible”.[7]
[7] JCB 20
25While she did not persist with the claim based on the alleged mild brain injury, there is an issue raised in the medical evidence as to whether the plaintiff’s claimed cognitive impairments are caused by an organic (physical) or psychiatric injury, or both.
Contentions
26Dealing briefly with the parties’ contentions, the plaintiff adopted a broad-brush approach and highlighted her claimed cognitive deficits, because of what she said was an accident-related psychiatric condition.
27The plaintiff submitted that because of her psychiatric symptoms, she no longer had the capacity to manage life’s challenges, work and advance her PhD. She accepted that before the accident she had required extensions for the completion date for her PhD, but she submitted that as at the accident, she was still making progress towards completing her thesis, but now she was making no real progress.
28The plaintiff submitted that she had genuine, psychiatrically based symptoms, that produced impairment consequences that met the test of “serious injury”. She emphasised impairment of higher cognitive function and the impact that had on her future career options, because she had been unable to complete her PhD. As mentioned already, she said that the symptoms produced a subtle decline in cognition, which was said to produce a “very considerable” impairment consequence for her.
29On the other hand, the defendant took a much closer forensic analysis to the evidence before and after the accident, in support of the submission that the plaintiff did not have a “serious injury”.
30The defendant relied on the evidence of other challenges that the plaintiff had faced in her life and the difficulties she was having with her PhD before the accident.
31The defendant highlighted the objective evidence that supported a conclusion that the plaintiff was an unreliable historian. It was submitted that the plaintiff had downplayed the difficulties she was having before the accident and had exaggerated the role of the accident as the cause of her unfinished PhD. It also submitted that she had downplayed her work since the accident.
32The defendant submitted that the plaintiff was struggling with her PhD well before the accident. Other events after the accident, such as the loss of her stipend and the loss of employment because of COVID, had left her in a financial ‘pickle’.[8] Further, since the accident she had obtained full time employment work, which meant that she simply did not now have the time to complete the PhD.
[8] T 231, L 20.
33Next, the defendant carefully analysed the medical evidence for a consideration of whether the plaintiff had an accident-related mild brain injury, or a psychiatric response, to the accident and how the evidence of that was a “mixed bag”[9] and did not assist the plaintiff to discharge her evidentiary onus.
[9] See, as an example, T 261, L 22.
34Overall, the defendant submitted that the plaintiff did not have an ongoing accident-related psychiatric condition, but even if she did, the loss of the PhD was not an impairment caused by that condition and overall, the plaintiff simply did not have a “very considerable” consequence.
35Pausing, the “mixed bag” submission is in fact highlighted by the opinion from Dr Weissman as already set out, where he said that the decline in cognition was due in part to a psychiatric condition and in part due to an organic condition.
The reliability of the plaintiff is crucial to the result
36The parties took a different approach to the evidence and the submissions, but one thing they agreed on was that the credit or reliability of the plaintiff was central to the result of this proceeding.
37The impairment consequences that the plaintiff relied on were largely based on her subjective evidence of those consequences. As has been said many times, in a personal injury proceeding, the acceptance of the evidence of the plaintiff is often critical to the success or otherwise of the proceeding. This is particularly so in cases involving psychiatric injury. As was said in Petrovic, the opinion of any expert is usually only as good as the underlying history upon which it is based.[10]
[10] Petrovic v Victorian Workcover Authority [2018] VSCA 243 at [74]
38As the plaintiff’s senior counsel said candidly in closing submission, “[I]f Your Honour accepts that the voracity of what she says in the passages I’ve taken you to she succeeds. If Your Honour doesn’t accept those, then she doesn’t”.[11]
[11] T 285, L 30-31 - T 286, L 1-2
39I shall consider the issue of the reliability or credit of the plaintiff in more detail in due course. But as a general comment, despite a lot of detail in her affidavits about her PhD studies, there was relevant evidence that was not in her affidavits.
40While I would not expect any plaintiff to provide an encyclopedia of everything that had happened to them before and after an accident, in a proceeding with a heavy reliance on subjective complaints, the plaintiff’s evidence should have at least broadly painted an accurate picture of life before and after the accident. Having considered the plaintiff’s evidence in the context of the objective evidence, in my opinion she put her best foot forward in her affidavits and what she said to medico-legal experts, in claiming the accident as the reason she has not finished the PhD. Some of her evidence is unreliable and that impacts the weight I attach to it for a consideration of “serious injury”.
41In that regard, her senior counsel accepted that the claimed impairment consequence by way of the inability to finish the PhD was “a very significant plank”[12] in how the plaintiff put her case.
[12] T 65, L 19
42In my view the PhD is more than just a significant plank. It is in fact the only plank upon which I could conclude that the plaintiff has a “very considerable” impairment consequence. That is because the evidence otherwise is that any emotional distress, need for treatment and impairment of daily living would not get to a “very considerable” consequence.
43But, as I shall now describe, that plank is not supported by a consideration of the whole of the evidence.
The evidence
Medical evidence
44It is unnecessary to set out in detail the medical evidence, especially the medico-legal evidence, because of how the plaintiff put her case.
45But as an overview, the medical evidence relevant to the plaintiff’s claimed impairments and her PhD studies broadly fell into four camps.
46In the first camp was the evidence from Associate Professor (“A/P”) Peter Doherty, a consultant psychiatrist who provided a report to the solicitors for the defendant dated 3 April 2024[13] and said that any psychological symptoms were unrelated to the accident and were caused by the failure of the PhD.[14]
[13] JCB 805
[14] JCB 820
47In the second camp was the evidence such as that from Dr Nathan Serry, a consultant psychiatrist who provided reports to the plaintiff’s solicitors, who broadly considered the psychological condition to be the main cause of any cognitive impairment.
48In a report dated 7 October 2024, Dr Serry said that he maintained the diagnosis from his two earlier reports, namely a chronic PTSD, moderately severe adjustment disorder with anxious and depressed mood and probable cognitive sequalae from a concussive head injury. Dr Serry opined that the psychological injury had contributed significantly to the plaintiff’s cognitive difficulties and that “there does in my opinion appear to have been a significant impact of the claimant’s psychological injury on her ability to study and/or complete her PhD”.[15]
[15] JCB 635
49In the third camp was the evidence from experts such as Dr Weissmann, who accepted there was an ongoing accident-related psychiatric condition, but also accepted an organic injury as contributing to any ongoing impairment and, in his words, what was “obviously a complex case”[16] when it came to a diagnosis. Dr Weissmann opined that but for the accident “on the balance of probabilities, she would have completed her PhD by November 2019”.[17]
[16] JCB 744
[17] JCB 747
50In the fourth camp was the evidence that attributed any ongoing cognitive impairment mostly to the effects of a mild acquired brain injury.
51For example, the opinion from Elizabeth Mullaly, clinical neuropsychologist, who said in a report dated 25 March 2021[18] that the plaintiff’s cognitive impairment “is mainly related to her concussion”.[19] Dr Mullaly confirmed her opinion in a recent report dated 1 July 2024[20] when she said “I believe that Ms Kain’s objective memory, working memory and verbal fluency deficits are all caused by her traumatic brain injury. I think there is an equal component of her subjective symptoms that is due to the anxiety and mood disturbance related to the accident and the pain she experiences on a daily basis”.[21]
[18] JCB 673
[19] JCB 682
[20] JCB 687
[21] JCB 708
Overview of the medical evidence
52There is merit in the submission of the defendant that the medical opinions were something of a mixed bag when it came to identifying the impairment consequences from the psychiatric injury, as opposed to impairment consequences from a mild brain injury, or other physical injuries, or unrelated factors.
53But because the plaintiff relied on subtle cognitive impairment consequences as the cause of her inability to complete her PhD, not much turns on a detailed analysis of the medical evidence.
54The result of this proceeding, ‘mixed bag’ or otherwise, turns on whether the court accepts that she does have subtle impairment consequences, caused by an accident-related psychiatric condition, that prevents her from completing her PhD.
The plaintiff’s affidavit evidence
55The plaintiff swore four affidavits, which painted a picture of high achievement and progress towards her PhD before the accident, and underachievement since the accident with a decline in cognition and difficulty with her current employment.
56In her first affidavit[22] she described in detail the effect of a claimed head injury, the claimed psychological condition, and other physical ailments, such as blurred vision, from the accident. She said her PhD studies had been “dramatically affected”. She set out claimed impairment of concentration, memory, word finding and that she was now easily distracted. She described her current employment as “probably not sustainable”.
[22] JCB 19
57In that affidavit she also gave evidence of an approach by the University of South Australia about a job as a lecturer in the Bachelor of Property department. She said that if she had not been injured it “would have been the ideal job for me” but she did not think she could now do that job “with my brain the way it is”.[23]
[23] JCB 29
58In a second affidavit, sworn 8 March 2024[24] she gave more detail about her ongoing university employment and the difficulties she was having with that. She again described a range of physical and emotional symptoms. In that affidavit she said, “if I hadn’t been injured, I definitely would now have had my PhD which was due in November 2019”.[25]
[24] JCB 49
[25] JCB 53 at [5]
59Then in a third affidavit, sworn 7 October 2024[26] she said that –
“My pre injury plan had been to stay with a part time academic position and to consult/work in the commercial property and/or development industry to make a much better income This would have allowed Scott who has serious health concerns to be free from that stress”.[27]
[26] JCB 61
[27] JCB 62
60In that affidavit she also went into considerable detail about her PhD progress before and after the accident, as follows –
19. I want to say something briefly about where I was at with my PhD at the time of the accident
20. On 25 May 2018, I commenced my PhD at the University of Melbourne on a scholarship transferred from the University of South Australia. My first expected submission date was about 4 November 2018 being three years from the date of commencement of my PhD at the University of South Australia
21. In about June 2028, I was granted a stipend extension (further payment) for an additional six months.
22. I fully acknowledge that my workload with my PhD was heavy. Also, years earlier, I had experienced chronic fatigue syndrome. Over the years I had experienced extreme tiredness and a downturn in my energy from time to time. This would remind me of the fatigue that I had suffered in the past and I would manage this with strategies like a good diet, slowing down, listening to my body and resting. By managing this, I was able to live a full life with my family, study and work.
23. I accept that in February 2019 I attended my GP Dr Emily Lathlean and discussed my history regarding this. I sought a letter of support from Dr Lathlean. I was tired at this time, for sure. I am into health and was doing some research into what I might be feeling and how to improve my energy.
24. It was a full-on year - and you must recall I was working, had a lot of family responsibilities and was doing a PhD. Also, sadly, there had also been several deaths in my family, which was quite stressful for me and my family.
25. In addition, I had suffered a setback in that I lost some data on a hard drive in late 2018, which meant that a timeline for a research survey was pushed back to early 2019.
26. In about February 2019, I submitted an annual progress review to the chair of my supervisory panel Professor David Nichols, which included the letter of support from Dr Lathlean. I also sent Professor Nichols a letter setting out my circumstances and noting that I planned to submit my PhD thesis to the university by June 2019. A copy of the 2018 Progress Review is at pages 8 to 132 of the bundle Exhibit.
27. On about 2 May 2019, I submitted a further progress review. This included a further letter of support from Dr Lathlean. I noted that I still expected to complete my PhD in 2019. I requested to change my status from full-time to part-time which pushed my deadline to about May 2020. Although I planned to complete my PhD by November 2019, I saw the May 2020 deadline as a safety net. Earlier, on 18 April 2019, I had emailed my supervisor Associate Professor Kathyrn Davidson setting out details of my progress. A copy of the 2019 Progress Review and the email dated is at pages 133 to 155 of the bundle Exhibit.
28. I had started the PhD in 2015, and this was my 4-year mark. Even though it was a tiring load on my shoulders, I had almost finished my data collection and was on track to complete it.
29. I was preparing before the accident to do a lot in the coming months to write it up. I wasn’t fazed because I worked well in those days when the pressure was on. I was able to produce good work in those situations. I had worked this way during my undergraduate degree and had been extremely successful.
30. On 11 June 2019, I published a paper with the Collaborative Research Centre for Low Carbon Living research publications. This paper was written by me as primary author. A copy of this published paper is at pages 156 to 175 of the bundle Exhibit.
The course of my PhD post-accident
31. I also want to explain in more detail, the path that my PhD candidature has taken following the accident. As set out in my previous affidavits, my PhD studies have been dramatically affected by my accident injuries.
32. Due to my symptoms following the accident, I applied for leave from my PhD with support from Dr Lathlean from about 11 July 2019. I continued to experience symptoms as described in my previous affidavits. I applied for further leave with support from Dr Lathlean until about July 2021.
33. In 2020, part of my PhD research was published in the Energy Research and Social Science Journal. One of my supervisors went first author (I was named as second author) to enable the research to be published within a relatively ‘current’ period of time. I was simply not able to do the work to prepare the article for publication at that time. Whilst I was pleased to see the publication. This was extremely disappointing for me.
34. As set out in my earlier affidavit, I made a further request for leave from the PhD from July 2021 until January 2022 with support from Dr Lathlean. I was told by the university that I had exhausted my leave entitlements. In desperation, in early 2022 I made enquiries about my eligibility for Covid leave. However, I was told that I did not meet the eligibility criteria for this.
35. On about 7 April 2022, my husband Scott was diagnosed with metastatic cancer. We were told that he had only a few months to live. This news of course came as a great shock to our family and was extremely distressing. In the days after receiving this news, I experienced a flare up of my back pain. The pain was so bad that it was uncomfortable for me to walk. I used hiking sticks around the house. I underwent further investigation and was told to carry on with conservative treatment.
36. Following Scott’s diagnosis, I contacted the university to ask for further special leave. I was eventually granted leave until about October 2022.
37. After the initial diagnosis, Scott underwent testing and two weeks later, we were thankfully informed that it was a misdiagnosis.
38. On about 28 October 2022, I submitted a further progress review. A copy of the 2022 Progress Review is at pages 176 to 307 of the bundle Exhibit. This review includes a copy of my thesis to date. This showed little significant progress since the version included in my February 2019 review. My supervisory committee granted an extension of my candidature following this review.
39. On about 30 October 2023 I submitted a further progress review. A copy of the 2023 Progress Review is at 308 to 325 of the bundle Exhibit. As set out in my earlier affidavit the comments made by my supervisor indicate her support as a result of her goodwill and faith in my abilities.
40. As set out in my earlier affidavit on about 11 December 2023 I received notice of my lapsed candidature.[28]
[28] JCB 63-66
61Obviously in the third affidavit the plaintiff acknowledged some of the objective evidence and the difficulties she had with progressing her PhD before the accident.
62Then in a fourth affidavit, sworn 15 October 2024, she gave further evidence of the difficulties she now has as a teacher. She said that she was confident that had she not been injured, she would have been able “to work in academia with a 0.8 load and it would not have affected my progress in my PhD considering the stage I was at. I was deep into my PhD at the time of the accident and was doing it officially part time. I was tracking well”.[29]
[29] JCB 388
The other evidence
The plaintiff’s PhD
63Upon returning to Adelaide, in approximately November 2015, the plaintiff commenced a PhD though the University of South Australia. Around that time, she commenced as a guest lecturer at the University of South Australia, although what was involved in that and how much she was paid is a little unclear based on the state of the evidence.
64The plaintiff’s doctorate with the University of South Australia was within the university’s Architecture, Building and Planning unit. Her thesis title was “The value proposition of low carbon sustainable housing development: a property developer’s perspective”.[30]
[30]JCB 71
65The plaintiff’s PhD was officially confirmed by the University of South Australia in March 2017. Her principal supervisor was A/P Kathryn Davidson. In an affidavit sworn 7 October 2024,[31] A/P Davidson described the plaintiff’s work to be of an extremely high standard and how that by the time her proposal was confirmed in March 2017 the plaintiff had submitted around 20,000 words.
[31]JCB 395
66In September 2017, A/P Davidson moved to work at the University of Melbourne, before she relocated to Melbourne in February 2018. The plaintiff followed A/P Davidson and on 25 May 2018[32] her PhD studies were transferred to the University of Melbourne. When that occurred, there was an expected thesis submission date of 2 November 2018.[33]
[32]JCB 72
[33]JCB 72
67The plaintiff received a stipend for her PhD studies. That stipend had an end date of 2 November 2018.[34] By that time – again the state of the evidence is unclear – the plaintiff had obtained employment, in a job share arrangement with her husband, where she worked 16 hours per week, as a residential valuer for Knight Frank.
[34]JCB 74
Slow progress before the accident
68The defendant relied on documents and evidence contained in clinical records, in support of the contention that before the accident the plaintiff had a range of medical and other issues impacting her life and causing slow progress in her PhD.
69Perhaps as a harbinger of things to come, on 11 June 2016 the plaintiff attended a General Practitioner, Dr S Panhwar, who recorded in a clinical note that:
“…feels a lot of pressure from the university to go to China as this is the first time the scholarship has been awarded. She is also feeling pressure from them to come into academia after the scholarship which will require a PhD – not sure how she will juggle all of this”.[35]
[35] JCB 915
70Next, on 17 July 2016 the plaintiff attended another general practitioner, Dr Andre De Villiers, who recorded that “doing PHD feels on edge all thye [sic] time”.[36] Dr De Villiers provided the plaintiff with a medical certificate dated 17 July 2016 that stated the plaintiff “will be struggling to complete tasks and research deadlines for the next 1 month for University”.[37]
[36] JCB 901
[37] JCB 902
71The plaintiff’s struggles with deadlines and to make progress with her PhD was an issue from early on in her enrolment as a PhD candidate. This was highlighted by the defendant, who took her carefully through various clinical records to demonstrate her struggles, in contrast to what she said in her affidavits.
72The defendant’s scrutiny of what the plaintiff had told her doctors included an examination of medical records from Dr Emily Lathlean and other doctors at UniSA Health Medical, where she attended for various health issues from May 2017. A clinical entry for 8 May 2017 recorded the plaintiff having taken time off earlier that year for family reasons. Next, on 18 September 2017, the notes recorded various life stressors and the plaintiff being busy, as well as undertaking her PhD.[38]
[38]JCB 935
73Then on 14 December 2017, the clinical notes recorded stressors as having been discussed with the plaintiff. It was recorded that “Stress – PhD progressing, clearer in thinking re this”.[39]
[39] JCB 937
74On 8 June 2018 the plaintiff received an email from the University of Melbourne to inform her that her application for a scholarship extension had been successful, but no further extensions were possible.[40] On 26 June 2018 the plaintiff emailed the University of Melbourne about her stipend payments and confirmed that her completion date had been extended for six months.[41]
[40] JCB 961
[41] JCB 961
75In approximately September 2018, the plaintiff had an episode where she collapsed. Following that episode, she was referred by her doctor to a cardiologist.
76On 5 September 2018 the plaintiff attended Dr Alistair Begg, cardiologist, at the referral from Dr Lathlean. In a letter dated 5 September 2018 to Dr Lathlean,[42] Dr Begg recorded various life stressors that the plaintiff was facing, as well as a fainting episode that she had recently had at a work conference, requiring an admission at St Vincent’s Hospital.
[42]JCB 923
77The fainting episode in 2018 assumed significance during cross-examination because when the plaintiff fainted, she had a bag which contained a hard drive of some of the work she had then completed for the PhD. Somehow, in the commotion caused by her fainting event, the hard drive was lost. This was a setback because she did not have a contemporaneous backup of the material that was on the hard drive that was lost. About six months work or data was lost from the previous backup.
78In October 2018 the plaintiff attended Allison Macdonald, a counsellor, in respect to the difficulties she was having with her PhD and the loss of her hard drive. In progress notes made 9 October 2018, Ms Macdonald noted the plaintiff had lost the transcripts of 22 interviews, but still had the audio, and some chapters she had written. That meant she did not have enough information to present at review and had been on the verge of tears ever since.[43] The plaintiff had in fact met with Ms Macdonald in August 2018, before the loss of the hard drive, where Ms Macdonald recorded the plaintiff to be “very behind in her PhD studies”.[44]
[43]JCB 947
[44]JCB 953
79By early 2019 the plaintiff was objectively struggling to manage her study, work and other stressors, and was very behind in her PhD.
80On 15 February 2019 the plaintiff attended Dr Lathlean, who recorded “the main difficulty for her is that she has deadlines for her PhD”.[45]
[45] JCB 940
81Then on 20 February 2019, Dr Lathlean recorded the plaintiff having “[a] lot going on” and “Discussed about if PhD is causing too much stress on top of everything else she needs to deal with that she may need to take a break from it”.[46]
[46] JCB 941
82Next, at a university review meeting on 4 March 2019, at which A/P Davidson attended (by phone), the plaintiff presented a letter detailing circumstances which had resulted in delays to the completion of her PhD and indicated that she was then working towards a deadline of 30 June 2019 which coincided with the end date of her stipend. The review documents[47] described several chapters as 50 per cent complete and that a redirection of research had resulted in a change of the conceptual framework and that work was still in progress. There was a note that the plaintiff planned to pause writing one chapter to enable online survey data to be collected.
[47]JCB 76
83On 11 March 2019 the plaintiff sent an email to A/P Davidson about potentially taking leave but said that rather than take leave “it was suggested that my enrolment status change to part-time once my scholarship expires on 2 May 2019”.[48]
[48] JCB 919
84On 18 April 2019 the plaintiff sent another email to A/P Davidson about her progress and issues to do with her PhD. In that email she also said that “I am still trying to manage my health as nothing has changed, so completion by the CRC[49] end in June is unlikely, despite my best hopes and efforts. Do I need to obtain a new medical certificate for the progress review?”[50]
[49] The reference to CRC is a reference to the stipend
[50] JCB 962
85On 26 April 2019, Dr Lathlean provided the plaintiff with a medical certificate in support of a further application for an extension.[51] Amongst other things, Dr Lathlean noted that the plaintiff’s chronic fatigue had significantly impaired her ability to fulfil immediate requirements for her PhD. Dr Lathlean wrote in support of the plaintiff’s request for special consideration regarding extensions.
[51]JCB 942
86Apparently from 3 May 2019, the plaintiff dropped down to a part-time study load for her PhD. She emailed the University of Melbourne on 8 May 2019[52] seeking a progress review to enable a further extension. In that email she noted that she was then part-time, which stretched the extension for one year.
[52]JCB 959
87Obviously, by 3 May 2019 the plaintiff had sought several extensions from her initial completion date of 25 September 2018.[53] Further, her stipend (the CRC) was due to end in June 2019. Her early expressed hope of finishing the PhD by 30 June 2019 was clearly unrealistic.
[53]JCB 961
88It was in that context, that the plaintiff was on the bus on 11 July 2019, on the way to a further review meeting and to request another extension, when the accident occurred.
89As already set out, in her first affidavit, sworn 25 October 2021, the plaintiff said that at the time of the accident she was in the job share role with her husband and that “I had my PhD dissertation and research tracking well despite requiring a 6-month extension in semester two in 2018”.[54]
[54] JCB 21 at [15]
90Pausing here, I do not accept that objectively she had her research and PhD tracking well as of July 2019. Objectively she was struggling. She had exhausted her stipend, required several extensions and had the setback of the lost hard drive.
91In her affidavit sworn 21 October 2021, she conceded that “[a] PhD is a massive exercise and there were periods where I was under stress”. Across her four affidavits she made some concessions about slow progress before the accident. Her affidavit evidence, considering the objective evidence, could be described as an accurate but incomplete picture.
92In other words, in her affidavit evidence she overstated her progress to the PhD before the accident and minimised the events that were impacting her progress.
93As I shall now move on to look at her affidavit evidence, which did not properly set our events since the accident, including her work.
The Knight Frank redundancy
94After the accident, the plaintiff was off work and study for several months. She managed to return to the job share work with her husband at Knight Frank. That job came to an end, for both, when they were made redundant by a letter from Knight Frank dated 27 March 2020. In her first affidavit the plaintiff said, “I believe the main reasons for losing my job was because of my mental restrictions given my accident”.[55]
[55] JCB 22 at [29]
95The defendant challenged the plaintiff about her claim that the Knight Frank job ended mostly because of her mental restrictions. She was asked if she stood by that affidavit evidence during cross examination, and said she did.[56] However, she accepted that the redundancy occurred during COVID, and that other Knight Frank employees, including her husband, were made redundant and the redundancy letter from Knight Frank gave COVID as the cause of redundancies and zero mention of any mental restrictions.
[56] T 76, L 16
96Regarding the Knight Frank work, it was put to her during cross examination that after the accident she got back to her pre-accident 16 hours per week, which she answered, “Yes and no”.[57] She said she either could not recall or could not confirm she got back to the 16 hours. She was then taken to the records of Hannah Halstead, an Occupational Therapist, that she attended on 6 February 2020 and she was back working “her substantive hours and duties in the shared role with her spouse”.[58]
[57] T 80, L 1
[58] JCB 925
97Regardless, whatever her hours or duties were after the accident, the plaintiff accepted that she did not give Knight Frank sickness incapacity certificates. However, later during cross examination she suggested her decline in mental ability was known to Knight Frank and that “COVID was a convenient intervention”.[59]
[59] T 86, L 19-20
98I do not accept the plaintiff’s evidence that COVID was a convenient reason for Knight Frank to make her and her husband redundant, because of her mental impairment. There is no reliable evidence at all to support that assertion. It is an example of the plaintiff attempting to put a gloss through her subjective evidence that is not made out by the objective evidence.
99In support of this conclusion, I note that in fact, on 8 December 2020 Dr Lathlean provided another medical certificate to the plaintiff, for the purpose of extending her PhD. Dr Lathlean noted the plaintiff to be struggling with several medical conditions since July 2019 but that “Additionally, she has experienced severe personal and family difficulties related to COVID-19, including financial stress after losing her job and her husband losing his job, which have also significantly impaired her ability to work on her PhD”.[60]
[60] JCB 928
100Further, Dr Lathlean provided another certificate on 14 April 2022,[61] in which it was said that the plaintiff required another extension for her PhD “on the basis of recent unexpected medical and personal situation”, described to include her own bout of COVID, a flare up of pre-existing chronic fatigue disease, a flare up of back and leg pain and a diagnosis that her husband had a metastatic cancer (which apparently turned out to be a false diagnosis). Not much turns on this certificate other than to highlight that since the accident the plaintiff has continued to have a lot to juggle.
[61] JCB 944
Scott Kain’s affidavit
101Interrupting the narrative of events, the plaintiff relied on an affidavit from her husband, Scott Kain, sworn on 7 October 2024.[62] In that affidavit he made no mention of the Knight Frank job at all, so obviously his evidence does not support a conclusion that Knight Frank made his wife redundant because of a decline in her mental ability.
[62] JCB 389
102Staying for a moment with the affidavit from Scott Kain, true it is that he was not required for cross examination, but that is not of itself a reason to unquestionably accept all his evidence. Rather, his evidence must be looked at through the prism of the reliability of the evidence of the plaintiff.[63]
[63] Nikolic v Transport Accident Commission [2020] VSCA 148 at [68]
103Scott Kain said in his affidavit that; “if it is to be suggested by anyone that Catherine was off track immediately prior to the crash as regards her PhD I can say categorically this was not so. Of course, it was a big job ahead of her and needed a lot of effort and work, but she was going well” and that “Catherine was on target before the crash with her PhD”.[64]
[64] JCB 391-392
104Scott Kain is clear in his evidence that before the accident he thought his wife was going well with her PhD. At the risk of being someone who suggests otherwise, I do not accept that as accurate evidence. Objectively, she was struggling, so much so that she was undertaking a long bus trip for an in-person review meeting at which she was going to ask for a further extension, having already required an extension and going part time.
105Next, Scott Kain said in his affidavit that the plaintiff now struggles with her current employment and frequently works long hours into the night “chasing deadlines to stay within her official ‘4-day week’ workload” and then described her as “living like a recluse”. As I shall describe in due course, his comments about her 4-day work week, and of living like a recluse, are not borne out by the objective evidence.
The work after the accident
106Slightly out of order, but relevant to the Knight Frank work, and work in general, after the accident, on 25 July 2019 the plaintiff attended for psychological treatment with Andrew Grant, psychologist at Your Calmer Mind in Adelaide.
107During cross examination, the plaintiff was taken to Mr Grant’s report dated 28 June 2020,[65] in which he said that he saw her for ten treatments up to the last attendance on 12 December 2019. He said he was told at that attendance that the plaintiff had been diagnosed with a mild traumatic brain injury and that “a course of further stress and arousal reduction techniques and graduated work hardening activities would form the next phase of treatment”.[66] He also recorded that the plaintiff was contemplating further study and a return to the Knight Frank work.
[65] JCB 545
[66] JCB 550
108Returning to the timeline, after the Knight Frank redundancy, the plaintiff’s work situation changed for the better. In her oral evidence she described how shortly after the redundancy she bumped into a previous lecturer in the street. This chance encounter does not sound like one that a recluse would experience, but in any event, apparently at this encounter when she said she had just been made redundant, he said “come and give us a hand”.[67]
[67] T 89, L 9-13
109From that chance encounter, the plaintiff obtained employment first as a dissertation supervisor and then in a role where her title is lecturer, although there was considerable cross examination about whether she was a lecturer in name only, and what the job involved. She described how she co-teaches with a professor who is semi-retired in Portugal.[68]
[68] T 89, L 19-23
110The plaintiff teaches and co-ordinates the course Master of Property at the University of Adelaide. She is employed four days per week. It is a job she described in her oral evidence as “hugely demanding”.[69] She is currently earing about $107,000 gross per annum and has a contract for next year for a salary of $115,783.[70]
[69] T 93, L 27
[70] T 94, L 31
111The plaintiff’s employment as a ‘lecturer’ beyond next year at the University of Adelaide is uncertain due to a restructure of tertiary education in South Australia and mergers between universities. In the third affidavit sworn 8 March 2024[71] the plaintiff set out a lot of detail about her current role as a lecturer, the difficulty she has in preparing and coping with that job, and the uncertainty around it. She said that there will be serious problem when the universities merge and “[m]y position is temporary and can be terminated with two weeks’ notice. My employment is very uncertain”.[72] The thrust of much of this affidavit was directed towards the restrictions for work in academia because of the lack of a PhD.
[71] JCB 49
[72] JCB 53 at [23]
112In her third affidavit, the plaintiff said that neck and upper back pain were present. She described ongoing headache. She described ongoing psychological symptoms. She described ongoing impairment of cognitive function. She described blurred vision. Not all those symptoms could be said in any way to be linked to the claimed psychiatric condition. That is part of the ‘mixed bag’ of evidence of impairment consequences.
113Also in the third affidavit, the plaintiff referred to her concurrent employment at the University of South Australia, where she was a guest lecturer between 2015 and 2017, before returning there to a position as a supervisor and tutor in the property department in 2020. She described the concurrent role at the University of South Australia as one where she was paid $10,971.96 gross “where I assisted a colleague tutoring one subject in Property degree at an undergraduate level”.[73]
[73] JCB 50 at [10]
114As I shall return to discuss, the reality is that between the two universities the plaintiff is now effectively employed full time. That was not accurately set out in her affidavits.
115The plaintiff continues to work at the two universities. But her PhD has now come to a halt.
116On 31 October 2023, the plaintiff emailed the University of Melbourne about her PhD enrolment. This time she wrote that following a recent meeting and her request for a “lapse request”, she attached her thesis update and said she also had approximately 30,000 words in various stages of edit. During her oral evidence she explained that her enrolment has now lapsed, although she has the option to seek to re-enrol.
The ‘pickle’ caused by the work after the accident
117The plaintiff’s current teaching obligations was explored in detail during cross examination.
118First, it was suggested to her that she had been in the demanding four day a week role for some years which really leaves little time for anything else, with which she agreed.[74]
[74] T 95, L 16
119Second, it was put to her that where her stipend had run out, despite her hopes of finishing her PhD, she was going to be in a real pickle, that is needing to work while attempting to finish the PhD. The plaintiff challenged that as accurate but eventually she agreed with that proposition.[75] However, later in her oral evidence she resisted that there was a ‘pickle’ and said that while she had a financial need to work, but for her cognitive impairment, she could have managed four days a week of work and her PhD studies.[76] But she did then accept that at no stage during her PhD studies had she ever worked 32 hours per week.[77]
[75] T 103, L 1-3
[76] T 104, L 13-16
[77] T 104, L 26
120In that context, the plaintiff accepted during cross examination that up until 2022, she had managed some progress towards finishing her PhD, being in a period where she was not working the 32 hours per week.[78]
[78] T 105, L 16-25
121Next, the plaintiff in addition to her current paid employment manages, to her credit, to find time to do some volunteer work at what was described as a “woman’s shelter”.[79] She has done that since 2022.
[79] T 105, L 31
122Returning to her current 32 hours per week as a lecturer, the plaintiff emphasised in her oral evidence how, she works four days a week but, in her words, it takes “eight days a week to do the bare essentials”.[80] Later on she repeated her comment about having to work “eight days a week” as an explanation for why she could not now make progress on her PhD.[81]
[80] T 108, L 14-19
[81] T 112, L 20-24
123On the issue of the 32 hours, the plaintiff was cross examined about how the University material promotes her as the course co-ordinator. There was extensive cross examination about the work she does and what her true level of input is into the course.
124But in an attempt at something of a ‘gotcha moment’, the plaintiff was then challenged about the omission from her affidavits of any meaningful evidence about her concurrent employment at the University of South Australia. Despite a lot of evidence about her PhD and what her current 32-hour week as a lecturer/course co-ordinator involves, there was only a passing or scant reference to her concurrent employment at the University of South Australia. This was suggested by the defendant to be a very significant omission from her affidavits.[82]
[82] T 122, L 15-23
125A consideration of all the plaintiff’s affidavits and exhibits, including her curriculum vitae exhibited to her first affidavit, does disclose the concurrent employment, but in my opinion in an unsatisfactory and vague way. As I said earlier her affidavits were accurate to an extent, but also incomplete on several key issues.
126Therefore, understandably considering her oral evidence of working eight days to do the bare minimum for her four day-a week job, she was challenged about the unsatisfactory nature of her affidavit evidence of the concurrent employment at the University of South Australia. Her response to that was that it was not an intentional omission.[83]
[83] T 123, L 4-5
127The plaintiff said that the second job was for an average of ten hours per week. It is in a course described as building evaluation for property. She was cross examined on documents relating to that course.
128In her fourth affidavit, sworn 15 October 2024, the plaintiff said “I can say that I do not think I would be able to manage a full time load as a teacher – at any level” and that “I am confident that had I not been injured, I would have been able to work in academia with a 0.8 load and it would not have affected my progress in my PhD considering the stage I was at”.[84]
[84] JCB 388 at [5], [6]
129It begs the question how the plaintiff could have considered her own affidavit evidence as accurate when she sought to emphasise how she could not now work full time in a university position, where she must have known she was in effect working full time across the two universities. It also raises as an issue the reliability of her husband’s evidence when he also made much of her struggles to work four days a week.
Tying some threads together
130At this point a few threads from the evidence can be tied together, in the context that the plaintiff’s affidavit and oral evidence was unreliable and unsatisfactory about several important issues.
131First, the objective evidence is that the plaintiff was struggling to complete her PhD before the accident. She was struggling to juggle other life stressors and had the setback of the lost hard drive. She was requiring extensions and dropped down to part time for the PhD. While A/P Davison said that is not unusual for PhD candidates, that statement must be considered by reference to the evidence in this proceeding. I consider that before the accident the whole of the evidence demonstrates that objectively the plaintiff was behind and in danger of being unable to finish the PhD. This was more than the not uncommon need for an extension discussed by A/P Davidson.
132Second, COVID came along, and she and her husband lost the Knight Frank job. Luckily for her, she found work in academia, at a high level and now for more hours and more money than before the accident.
133Third, the academic work has evolved to be the equivalent of full-time work, spread over two Universities and with a mix of teaching and co-ordinating the courses.
134Fourth, I accept the contention of the defendant that the plaintiff is now in a pickle. The good news is she has found work in academia that she did not have before the accident. The bad news is that her current work, and other life stressors, means that she simply does not have the time to finish her PhD. It has become her Sagrada Familiar, a project where the size, time and money involved, does not allow her to finish it.
135Fifth, overall and looking at what is retained, the plaintiff is not a recluse. Whatever psychiatrically based impairments she might have, objectively she can work two jobs, volunteer, involve herself with her family and travel as necessary, not only locally, but also interstate and overseas.[85]
[85] T 182.
136Sixth and related to the fifth, if she had the time – and the money – I consider that the plaintiff’s ability to finish her PhD remains as it was before the accident. That conclusion is supported by the fact that she did continue to make some limited progress with the PhD Until she got the four day a week university role.
137In the context of her current work and how the evidence was presented, I asked the plaintiff whether if she was paid to stay at home, would she now be able to finish her thesis and she said “[p]ossibly, possibly”.[86] I understand that answer to mean that she would have the cognitive ability to finish the PhD. I am fortified in that conclusion by the plaintiff’s presentation in the witness box. At no stage during lengthy oral evidence did she present as someone with cognitive deficits.
[86] T 148, L 17.
138In other words, whatever impairment she has, it is not such that she could not intellectually finish the PhD. In my opinion, the evidence points to a conclusion that what has changed is that she now has demanding jobs and more to juggle. She simply does not have the time to finish her PhD. Her ability to teach at two universities suggests she still has the cognitive ability to finish the PhD.
139So, while the accident may have been a further interruption to an already interrupted PhD, I do not accept that as at today she lacks the cognitive ability to resume her PhD.
140Seventh, in final submission, her senior counsel submitted that the Court should accept the voracity of her evidence that before the accident she had the mental ability to juggle everything which gave her options and that is what she has lost,[87] that her thinking has now changed,[88] and that she now struggles to hold on to words, causing her to stop and struggle in class.[89] I do not accept that submission to be supported by a consideration of all the evidence.
[87] T 173, L 6-12.
[88] T 190, L 11.
[89] T 193, L 7-13.
141Crucially, since the accident she has been able to secure two academic appointments, with no objective evidence that her teaching work is considered below standard by either University. She has also juggled ongoing health scares of her own, and health scares impacting her husband, as well as supporting her children, doing some volunteer work and still managing time to travel and be with friends and family. On one view she is now successfully juggling more than she did before the accident.
142Eighth, even if the plaintiff has an ongoing accident-related psychiatric condition, on my assessment of the whole of the evidence, and considering the unreliability of the plaintiff’s evidence, life after COVID has taken her in a direction that does not allow her the time to finish her PhD. I am fortified in this conclusion because even with a less demanding schedule before the accident she was already struggling to finish the PhD.
143Ninth and overall, I conclude that the plaintiff minimised the difficulties she was having with the PhD before the accident, and minimised just how demanding and busy her life now is, for an attempt to blame the accident as the reason the PhD remains unfinished. Therefore, she failed to discharge her evidentiary onus.
Conclusion - the plaintiff is unreliable, and the claim fails
144The parties agreed that an acceptance of what the plaintiff says was determinative of the claim for a “severe” impairment consequence. Because I do not accept the subjective evidence of the plaintiff that the accident is the reason she has not finished her PhD, then her claim for “serious injury” is not made out.
145It is unnecessary to say anymore, or to deal further with the medical evidence. But, for completeness and as already mentioned, there is merit in the contentions of the defendant that the medical opinions are based on an incomplete history, and that many of them are a “mixed bag” of reported organic and non-organic symptoms. In fact, the plaintiff’s affidavit evidence is also a bit of a mixed bag.
146The plaintiff’s current psychologist is Dr David Unsworth. He provided several reports that set out his treatment of the plaintiff since she first saw him in March 2020.[90] He is very strong in his support of the plaintiff having ongoing psychologically based symptoms. He went as far in a report dated 8 July 2024[91] as diagnosing a somatic symptom disorder,[92] although in submissions that was not pressed by her as an impairment consequence. Regardless, I do not accept that diagnosis as it is not supported by any of the psychiatric experts.
[90] JCB 569.
[91] JCB 581.
[92] JCB 583.
147In his first report, dated 10 September 2021, Dr Unsworth obtained a brief history that at the time of the accident the plaintiff was undertaking a PhD and working as a property valuer. He went on to describe the psychological impact on her, including how she was working 10-12 hours per week as a course co-ordinator at the University of Adelaide, but because of memory impairment she takes between 30-40 hours per week to complete the required tasks.
148In his second report dated 15 January 2024,[93] Dr Unsworth does not appear to be aware of the plaintiff’s current employment, although he set out what said were the “self-reported severity of symptoms”[94] described by the plaintiff to him.
[93] JCB 575.
[94] JCB 577.
149Then in his final report of 8 July 2024,[95] once again there is no mention by Dr Unsworth of the plaintiff’s employment, other than a short reference to what he described as an ongoing vocational impairment recorded as “(i.e. inability to work fulltime”).[96]
[95] JCB 581.
[96] JCB 584.
150In short, the evidence form Dr Unsworth brings sharply into focus issues to do with the reliability of the plaintiff’s subjective evidence of claimed impairment consequences and the lack of reliable, objective evidence. At first blush, Dr Unsworth’s opinion supports the plaintiff’s claim for ‘serious injury”. But when looked at objectively, his opinions rely heavily on what he fairly described as the plaintiff’s self-reported severity of symptoms.
151In the same way the evidence from medico-legal experts is also of limited use because of they also relied heavily on the plaintiff’s self-reported history of events before and after the accident and her self-reported symptoms.
152Specifically, the medical reports the plaintiff relied on from psychiatrists Dr Serry and Dr Weissmann, like Dr Unsworth, at first blush are also broadly capable of being said to be supportive of a claim for “serious injury”. But those experts also do not have the proper history. I am not critical of them for accepting what the plaintiff said, but the unreliability of the history given to them lessens the usefulness of their opinions.
Result
153Where the plaintiff had the evidentiary onus, she failed to provide reliable evidence to discharge that onus.
154At the highest, the plaintiff may have some mild ongoing psychiatric symptoms, but those symptoms are not the reasons her PhD has stalled. They are also not the cause of any pecuniary loss consequences and in fact the plaintiff is now earning considerably more now than what she was before the accident. Any psychological symptoms simply do not produce impairment consequences to meet the “very considerable” test.
155Therefore, for the reasons expressed, the application is refused.
156I will hear from the parties as to consequential orders.
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