Kamoen v Transport Accident Commission
[2023] VCC 983
•22 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-02058
| RONALD KAMOEN | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 June 2023; 5 June 2023 | |
DATE OF JUDGMENT: | 22 June 2023 | |
CASE MAY BE CITED AS: | Kamoen v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 983 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury application – limitation of actions application – substance abuse disorder – post traumatic stress disorder – reliability of plaintiff – whether the plaintiff has a pre-existing psychiatric injury – whether the psychiatric injury meets the threshold test of a “serious injury” – whether extension of time should be granted – reasons for delay – prejudice caused by delay
Legislation Cited: Transport Accident Act 1986; Limitations of Actions Act 1958
Cases Cited:AG Staff Pty Limited v Stefan Filipowicz [2012] 34 VR 309
Brisbane South Regional Health Authority v Sharon Annette Taylor (1996) 186 CLR 541
Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: The plaintiff’s applications are granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr D O’Brien | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr S Pinkstone | Solicitor for the Transport Accident Commission |
HER HONOUR:
Background
1Mr Kamoen was in a transport accident on 22 September 2003, when he was fourteen years old.
2He makes this application for a serious injury certificate for injuries sustained in that accident, pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the TAA”). The injury he claims he suffered is a severe long term mental or severe long term behavioural disturbance or disorder.[1]
[1]Section 93(17)(c) of the TAA
3If he is successful in that application, he also makes an application pursuant to s23A of the Limitations of Actions Act 1958 (“the LAA”) for leave to extend the period in which he is entitled to pursue a cause of action.
4At the time of the transport accident, Mr Kamoen and his step brother were passengers in a vehicle driving along Old Shank Road in Rosebud on the Mornington Peninsula. The driver of that vehicle was Mr Kamoen’s best friend at the time, Matt. Matt struck a tree and was killed. Mr Kamoen and his step brother, Mr Chris Tamburro, sustained only minor physical injuries. Mr Kamoen says he was able to see his friend and that “most of his head and face was missing”.[2] He tried to administer basic first aid but it was clear that Matt was dead.
[2]Plaintiff Further Amended Court Book (“PFACB”), 12
5Mr Tamburro says he and Mr Kamoen were covered in blood.[3] A passing motorist provided assistance. The following day Mr Kamoen returned to the scene of the accident and took photographs of the car, which are still in his possession. He was also taken to view Matt’s body.
[3]PFACB 34
6Mr Kamoen received some counselling from psychologist Dr Peta Macdougall until August 2004.
7He has had a number of issues in his life, including drug and alcohol abuse and convictions for driving offences. He had a drug-induced psychotic episode in 2014 which resulted in his hospitalisation.[4] He has worked as a bricklayer and a herd manager on a farm but there have been periods during which he was unemployed. He currently works four days a week which he says is all he can manage due to his mental health issues.[5]
[4]PFACB 14
[5]PFACB 17
8Mr Kamoen says he had no knowledge of his entitlement to sue for damages until he was told he might have a claim by his psychologist Mr Peter Horton.[6] He does not say when this advice was first given, though he first consulted Mr Horton on 19 March 2021. He consulted his solicitors for the first time on 10 March 2022 and retained them to act for him the same day.[7]
[6]Transcript (“T”) 111, (“L”) 27-30; PFACB 218
[7]PFACB 26
Relevant issues to determination
9The issues in this case are:
(a) Does Mr Kamoen have a psychological injury that was caused by the transport accident?
(b) If so, does that injury meet the relevant test of ‘severe’?
(c) If so, is that injury productive of pecuniary loss?
(d) If Mr Kamoen is granted leave to pursue a claim for damages, should he be granted an extension of time pursuant to s23A of the LAA?
Does Mr Kamoen have a psychological injury that was caused by the transport accident?
Reliability of the plaintiff
10The defendant submitted the plaintiff was an unreliable witness whose evidence should not be accepted. In particular the defendant pointed to the following:
(a) His poor memory, particularly in relation to his work history given that he has worked in one of two jobs since he was 16 – bricklaying and farm work;
(b) The absence in his affidavit material of evidence about his relationship break-ups and their impact on him, particularly on his capacity to work full-time, and the link between an increase in substance abuse and anti-social behaviour at the time of those break-ups;
(c) His evidence for the first time in re-examination that he had intended to complete year 10 at school, and the absence of this evidence from any of his affidavit material;
(d) The absence of affidavit material from his father supporting his intentions in relation to his bricklaying apprenticeship.
11The defendant submits that, in a case where a psychological injury is claimed, the reliability of the plaintiff’s evidence is particularly important.
12I accept that the plaintiff’s evidence about dates and the timing of events was not always reliable and the plaintiff frequently said he could not remember or was unsure about the answer to questions.
13It was apparent from the plaintiff’s presentation in court that he struggled to give evidence. He had to take breaks, broke down in tears on a number of occasions, and frequently had to ask for a question to be repeated. There were long delays between many questions and answers and it was not always apparent whether the plaintiff was formulating an answer or had lost track of the question.
14There was no real dispute in the case that the plaintiff has a psychiatric condition, the hot dispute is the cause of that condition.
15My finding that the plaintiff’s evidence was not always reliable is not a finding that the plaintiff was dissembling or dishonest. He made appropriate concessions and did not attempt to construct his evidence in a way favourable to his case.
16While I consider that the plaintiff’s evidence was, at times, unreliable because of his difficulty with memory, I did not consider he was not credible and I did not consider he was attempting to bolster his case.
17I do not consider the absence of evidence about his relationship break-ups to damage his credibility. His explanation was that he did not think it was relevant. Mr Kamoen struck me as a person who is only now, with the benefit of counselling, able to begin to link events together.
18For example he told his psychiatrist, Dr Thorley, in 2019 that he drinks 4-15 stubbies of beer daily and has had this pattern for the last 2 years. He does this as “it helps” and as he “feels good on it”. Dr Thorley reported that he does not see it as a problem.[8]
[8]PFACB 143
19In 2022, he told Dr Thorley that he viewed “doing burn outs as a hobby”,[9] and thinks “he’s been protected by God from misadventure”.[10]
[9]PFACB 142
[10]PFACB 144
20I accept his evidence that he did not consider the break-up of a relationship as a trigger for increased substance abuse and therefore did not consider those matters relevant to this application. I do not consider this was a deliberate attempt to mislead the court or to bolster his case. It is clear from the medical material that he has not always had insight into his own conduct.
21I am not persuaded that the plaintiff is an unreliable witness such that I should not accept his evidence broadly, though I do accept his memory is impaired and his grasp of dates is deficient.
What injury has Mr Kamoen sustained?
Dr Thorley
22Mr Kamoen was diagnosed by his treating psychiatrist, Dr Thornley, with post traumatic stress disorder, polysubstance abuse, alcohol abuse and antisocial personality in April 2019.[11] In February 2022, she diagnosed him with polysubstance abuse, antisocial personality with narcissistic traits and said he did not “presently” fulfil PTSD criteria.[12] On 23 May 2023, she noted the following diagnoses as having been recorded: post traumatic stress disorder, alcohol dependence, and polysubstance abuse which had resulted in an episode of drug induced psychosis.[13] She opined that his diagnosis of post traumatic stress disorder was a direct consequence of the transport accident and his substance and alcohol abuse had been contributed to by the effects of the accident and the PTSD.[14]
[11]PFACB 143
[12]PFACB 145
[13]PFACB 147
[14]PFACB 147
Mr Horton
23Mr Kamoen’s treating psychologist commenced seeing him in April 2021 when Mr Kamoen sought help following his relationship breakdown and for drug and alcohol issues. He diagnosed PTSD, substance abuse, depression, impulsive control disorder, anxiety and adjustment disorder.[15] He considered the diagnoses resulted from the trauma of the transport accident, compounded by the lack of earlier intervention.[16]
[15]PFACB 136
[16]PFACB 136
Dr Shutz
24Mr Kamoen was assessed for medico-legal purposes by psychiatrist Dr Gregor Shutz on 22 July 2022. He diagnosed a substance use disorder and an unspecified depressive disorder.[17] He considered it reasonable to conclude that the transport accident was a significant contributing factor to the development of the depressive disorder. He considered that Mr Kamoen probably had previously had PTSD which is largely in long-term remission.[18] While he considers that there are suggestions of personality vulnerability and that Mr Kamoen may have anti-social traits, he did not consider there was sufficient evidence to diagnose antisocial personality disorder.[19]
[17]PFACB 154
[18]PFACB 155
[19]PFACB 155
Associate Professor Doherty
25Associate Professor Peter Doherty also assessed Mr Kamoen for medico-legal purposes and provided reports dated 23 March 2023, 11 May 2023 and 1 June 2023. He diagnosed a “psychological reaction” to the transport accident, in the context of a significantly disturbed early childhood with separation anxiety.[20] He diagnosed a current alcohol use disorder.[21] He said there is no diagnosable PTSD condition, and if one was previously present it is not currently present.[22] He diagnosed the plaintiff with bipolar type two disorder and says the cause of such a disorder is “largely constitutional”.[23] He opines that the transport accident did not cause or significantly contribute to the bipolar disorder and the effect of the transport accident “faded quickly’” and “is resolved”.[24]
[20]Defendant Amended Court Book (“DACB”), 15
[21]DACB 15
[22]DACB 16
[23]DACB 16
[24]DACB 16
26He based this opinion on the history Mr Kamoen provided which was that he could not stop thinking about the accident for four or five months. He had a handful of appointments with psychologists but did not want to continue going.[25] Associate Professor Doherty explains that:
“I came to the viewpoint that there was a psychological reaction, as expected, and it was brief, lasted for about four months, and he moved on”.[26]
[25]DACB 12
[26]DACB 254
27Associate Professor Doherty notes that most symptoms of PTSD fade quickly and are gone within three to twelve months. He concludes this is what happened to Mr Kamoen based on his history.[27] He places weight on the absence of psychological assessment or general practitioner records from the period to support a diagnosis of any psychological condition persisting more than four months after the accident.[28]
[27]DACB 254
[28]DACB 254
28He concludes that Mr Kamoen’s early developmental history, in particular, “significantly disturbed childhood”,[29] is a “sufficient contributor to give rise to the commencement of substance misuse at 15 years and to have difficulties adjusting to societal norms and feeling depressed when separation and loss take place”[30].
[29]DACB 15
[30]DACB 255
29It is correct that the plaintiff’s parents separated at aged four, and that at aged twelve he went to live with his father. He describes his relationship with his step mother and step siblings as good.[31] He describes not liking school, and not being good at school.[32] However, he also says he had friends with whom he got on well.[33] He engaged in some social drinking in years seven and eight,[34] prior to the transport accident, and had used marijuana once prior to the accident.[35]
[31]T98, L15-16
[32]T97, L21-22
[33]T53, L2-21
[34]T53. L15-16
[35]T56, L12-14
30Associate Professor Doherty considers these factors created the conditions, aggravated by subsequent stressors including becoming a father at an early age, that significantly contributed to the use of mood-altering substances.[36] Associate Professor Doherty opines that:
“There were many adverse social and psychological issues before the subject transport accident and difficulties after that in his educational activities, personal relationships and achieving vocational goals, and maintaining relationships”.[37]
[36]DACB 256
[37]DACB 256
31Associate Professor Doherty considers these “adverse social and psychological issues” as the cause of Mr Kamoen’s polysubstance abuse. The transport accident, in Associate Professor Doherty’s view, has no role in Mr Kamoen’s current presentation.
32However this analysis appears to be based on an assumption that is not supported by either of Mr Kamoen’s treaters, or his evidence, about the adverse impacts of his early childhood. Associate Professor Doherty does not appear to have taken into account the fact that Mr Kamoen received counselling for a year following the accident, not four months. He does not appear to consider the subsequent efforts Mr Kamoen made to obtain counselling in forming his opinion that his PTSD completely resolved within months of the transport accident.
(a) Mr Kamoen sought further counselling sessions from the TAC in November 2014.
(b) He consulted Dr Olivia Stuart in December 2014 seeking mental health treatment and discussed being a passenger in a car in which the driver was killed.[38]
[38]DACB 52
(c) In January 2015, Dr Stuart referred Mr Kamoen for counselling, and commenced citalopram for “long standing anxiety and depression”.[39]
[39]DACB 63
(d) In January 2015, he was noted by Dr Stuart to have a “long history from car accident with loss of friends life and following difficulties”.[40]
[40]DACB 59
(e) In June 2015, he was noted to be doing counselling with Odyssey House. Citalopram was noted to be slowing him down and was reduced.[41]
[41]DACB 54
(f) In February 2016, he consulted a general practitioner, Dr Atif Mazhar, for anxiety and depression. At that stage he had been on Lexapro, a mood stabiliser, for a year.[42]
[42]DACB 33
(g) He was still taking Lexapro in May 2016.[43]
[43]DACB 35
(h) In September 2016, he was noted to have relapsed into drug use. Dr Stuart noted that Mr Kamoen was very anxious and “worries all the time”, and recorded him as having “lifelong counselling under TAC”.[44] His citalopram dosage was increased. In a referral letter for psychological counselling, Dr Stuart noted a history of the motor vehicle accident twelve years prior and opined that “the road to recovery has been long, including psychotic breakdowns precipitated by drug use”.[45] He was noted to be “always anxious”.[46]
[44]DACB 55
[45]DACB 65
[46]DACB 65
(i) In September 2016, he contacted the TAC. A file note of that contact says:
“Client called to seek advice for treatment..advised he was 15 when involved in the MVA and feels it has left ongoing issues for him… Client would like to attend counselling in relation to MVA”.[47]
[47]DACB 246
(j) In February 2017, he saw a general practitioner who has noted:
“history of anxiety and depression…history of post traumatic stress following a major car accident…driver of the car was killed in that accident… was involved in drug use… since taking citalopram emotionally feeling much better”.[48]
[48]DACB 35-36
(k) In March 2019, the plaintiff contacted the TAC. The file note of that contact records:
”Client has recently seen a Dr who advised Client has PTSD and needs to speak with a psych”.[49]
He was referred to psychiatrist Dr Lucinda Thorley.
(l) He reported to Dr Thorley in April 2019 who noted that after the transport accident:
“[Mr Kamoen] reports crying and struggling to cope for some months before lapsing into substance abuse to try to feel better. He reports feeling constantly on edge, numb, avoids the site of the crash and has daily images of the accident pop into his mind.”[50]
[49]DACB 246
[50]PFACB 142
(m) He subsequently reconnected with his sister who recommended he see a psychologist. He commenced seeing Mr Horton in March 2021.
33While he may have told Associate Professor Doherty that he did not think about the accident again four months after it occurred, this was not his evidence. Associate Professor Doherty’s opinion is not supported by the medical records which show his consistent identification of the accident as a source of stress and a catalyst for seeking counselling.
34The plaintiff’s development history to which Associate Professor Doherty refers as a ‘sufficient contributor’ to give rise to the substance abuse disorder appears to be the plaintiff’s report to Associate Professor Doherty that:
(a) He had ‘separation anxiety’ when he first started school and did not want to go as he wanted to stay with his mother;
(b) He missed his father a lot;
(c) He was the ugly duckling.
35I do not accept Associate Professor Doherty’s conclusion that Mr Kamoen stopped thinking about the accident after four months as this is not consistent with the evidence as set out above.
36I do not accept Associate Professor Doherty’s diagnosis of bipolar disorder. He has based this diagnosis on Mr Kamoen’s use of mood-stabilising anti-psychotic medication in about 2022 prescribed by his psychiatrist. During this period, he reported having elevated periods of up to five days where he was working excessively, partying, drinking and using drugs to excess. Associate Professor Doherty considered these symptoms would make the diagnostic criteria for bipolar disorder and that Mr Kamoen should be diagnosed with that. This is not a diagnosis canvassed by either of his two treaters whose opinions are based on observations of Mr Kamoen over a number of years. In 2022, Dr Thorley had noted inconsistent report of elevated mood symptoms, but had not made a diagnosis of bipolar disorder. She noted she would trial asenapine, an antipsychotic medication, but there is no evidence about whether that was used, or was successful. There is no evidence that elevated mood or other symptoms of bipolar disorder persist.
37Mr Kamoen gave evidence that he no longer has nightmares and flashbacks and he has not done so for a number of years. I do not know whether the absence of these symptoms preclude a diagnosis of PTSD. Both Dr Thorley and Dr Shutz consider he had previously had symptoms consistent with PTSD, which may now be in remission. Both consider the transport accident to have been the cause of the PTSD and both consider the transport accident to be a significant contributing cause of his other diagnoses of depression and substance abuse disorder.
38Mr Horton considers Mr Kamoen continues to present with PTSD as well as a number of other diagnoses including depression. For the purposes of this assessment, I am not required to determine whether Mr Kamoen has PTSD or some other psychiatric disorder.
39On the basis of the medical records, expert reports and Mr Kamoen’s evidence, I am satisfied he has a psychiatric condition caused by the transport accident.
40In AG Staff Pty Ltd v Filipowicz, the Victorian Court of Appeal held that where there is a claimed injury with a multiplicity of causes the plaintiff must prove that the injury complained of has the necessary consequences to satisfy the requirements of the definition of serious injury.[51]
[51]AG Staff Pty Limited v Stefan Filipowicz [2012] 34 VR 309
41The Court of Appeal held in Rowe v Transport Accident Commission that it was insufficient to establish that the transport accident was ‘a cause’ of the injury.[52] The TAA requires the judge to identify what injury was caused by the transport accident and determine whether that injury is serious as defined.
[52]Rowe v Transport Accident Commission [2017] VSCA 377
42Where there is a pre-existing condition, it is for the plaintiff to establish what impairment has been caused by the accident which involves an analysis of the relevant body-part both before and after.
43Associate Professor Doherty opines that the plaintiff’s development history is sufficient to found a basis for his subsequent psychiatric issues.
44In this case, while there is evidence of some disturbance in the plaintiff’s early years, there is no evidence of a pre-existing condition. The plaintiff’s self-diagnosis of ‘separation anxiety’ reported by Associate Professor Doherty cannot be considered a psychiatric condition. Even if it did constitute a formal diagnosis, on the basis of Associate Professor Doherty’s report, it appears to have resolved by Grade 1. Associate Professor Doherty records the plaintiff giving the following history:
“from Grade 1 onwards school was good. From then on, he said he got on okay at school”.[53]
[53]DACB 10
45Associate Professor Doherty also recorded that at Rosebud Secondary School the plaintiff had a lot of friends, though was not the best academically.[54] This accords with the plaintiff’s evidence and the evidence of his sister, who noted he had friends and was socially able. Associate Professor Doherty records that the plaintiff did not have social anxiety before the accident, but did have it after the accident.[55]
[54]DACB 10
[55]DACB 10
46The plaintiff gave evidence that he did not like school and that he did not do well at school and required remedial classes.[56] His pre-accident use of alcohol and marijuana does not amount to substance abuse disorder and no such diagnosis was made at the time or subsequently. There is no evidence that any of the difficulties the plaintiff may have experienced in relation to his parents’ separation, missing his father, or missing his mother, resulted in medical attention, referral to a school counsellor, or a diagnosis of any kind.
[56]T98, L26-29
47I am not persuaded the plaintiff had any pre-existing psychiatric condition. His early developmental history might have made the plaintiff more vulnerable to the consequences of a traumatic event, such as the transport accident, but the defendant is required to take the plaintiff as it finds him.
Does the injury meet the relevant test?
48What then, are the consequences for Mr Kamoen of his psychiatric injury? The defendant submitted that the evidence shows Mr Kamoen has an issue with substance abuse and that, in the context of external stressors, such as the birth of his son when he was 16 and the break-up of various relationships, his substance use increases. In the context of increased substance abuse, his mental health deteriorates, his ability to work deteriorates and he has engaged in illegal activities.
49The defendant says Mr Kamoen began abusing drugs and alcohol as a young teenager, drinking and taking drugs with his friends. He did it because everyone else was doing it, not because of his transport accident.
50The defendant points to the fact that, after the accident, Mr Kamoen was able to complete the school year, attend school for the entirety of the following year, successfully complete his bricklaying apprenticeship in the minimum time, and set up his own business as bricklayer, from time to time employing a subcontractor, as indicators that, after the transport accident, he was not suffering consequences that would meet the test.
51He then had significant stressors, including becoming a father at 16. The defendant submits Mr Kamoen used drugs and alcohol to escape the responsibilities with which he was now burdened.
52The defendant also says that, as he currently presents, Mr Kamoen does not have PTSD, has largely ceased drug taking, and has reduced his alcohol consumption. He is able to work in his former occupation as a bricklayer, participate in hobbies, including shooting rabbits and foxes, has his driver’s and gun license, and is in a stable and supportive relationship.
53Mr Kamoen agreed that he first took ecstasy with friends because they were taking it. He said:
“I still remember the first time I had it, it just gave me that much relief from the accident, from going on thinking about it every day, every week. I still remember that first one tablet, my mind cleared, I didn’t think about it once and I was able to enjoy things that I should have enjoyed as a child”.[57]
[57]T100, L5-11
54He said he continued to take ecstasy for relief until it no longer worked and made him feel depressed rather than happy. He moved on to speed which he says “lifted me up and made me feel better…from the thoughts and feelings that I was feeling”.[58]
[58]T101, L8-11
55He said he did not use drugs often before his son was born. When he was using drugs between the ages of 15 and 17 he was not thinking about anything else “but just having fun with my friends”.[59]
[59]T102, L21
56I take this to be that, at the time Mr Kamoen started using drugs, it was initially a social activity for fun. He did not embark on taking drugs with an intention that they would stop him ruminating about the transport accident. However, he discovered that they had the effect of ‘clearing’ his mind. He then started using drugs far more than his friends used them, and escalated from ecstasy to speed and eventually to ice, which he describes as doing “a better job of numbing me, I think”.[60]
[60]T103, L10-11
57I accept his evidence about his drug use, and the way in which it evolved. I accept the opinions of Dr Shutz, Dr Thorley and Mr Kamoen’s treating psychologist Dr Horton that the transport accident was a significant contributing factor to his substance abuse disorder.
Findings on consequences
58I find that the transport accident has had the following consequences for Mr Kamoen:
(a) The development of substance abuse disorder. His substance abuse has resulted in a psychotic episode.
(b) A significant contributing factor in the development of his depressive illness which has required him to take medication for many years, including to the present day. As a result of his substance abuse and depressive disorders Mr Kamoen has had a period of hospitalisation and panic attacks which continue intermittently.
(c) Mr Kamoen suffers from significant anxiety. [61] He gets anxiety attacks every couple of months, which cause him to physically shake. When he has an anxiety attack he cannot leave home and feels that something really bad is going to happen. He feels scared and panicky. He has had suicidal thoughts. He is constantly tired and lethargic.
[61]T106 – T107
59Mr Kamoen is still a young man and has experienced these consequences for nearly twenty years. While he has had periods of improvement, his history shows that his response to stressors in his life tends to project him onto a downward cycle again. His prognosis according to his treaters and the expert opinion is guarded.
60The fact that his injury occurred at such a young age means he will live with the consequences of it for longer than a comparable injury to an older person. It also occurred at a time when he was particularly vulnerable and just starting on the journey to adulthood. It has had an impact on the way in which he has dealt with the challenges presented by adulthood.
61It is to his credit that he was able to successfully complete his apprenticeship and establish a career as a bricklayer. While this could, as the defendant submits, indicate that he was not severely impacted by the consequences of his psychiatric illness, I instead consider it to be a testament to Mr Kamoen that he has managed to mostly remain in employment, despite his substance abuse and mental health problems. Apart from a period of about eighteen months when he was not employed at all, he has always worked either full-time, or close to full-time. Although the defendants dispute the cause of his injury, the existence of a significant psychiatric illness is not in dispute. I therefore do not consider his ability to work as demonstrating that the consequences of his injury are not severe.
62I am satisfied that the consequences I have found meet the test of a severe long term mental or severe long term behavioural disturbance or disorder.
Has the injury caused pecuniary loss?
63Mr Kamoen says that, as a result of his injury, he has suffered pecuniary loss. There was no documentary evidence to support his claim for pecuniary loss, as he has apparently never filed a tax return.
64This might be a hurdle to establishing that loss at any future trial. For the purposes of this application, however, I need only to be satisfied that, as a consequence of his injury, Mr Kamoen has suffered some amount of pecuniary loss.
65In 2019, Dr Thorley noted he was working four days a week.[62] He also had a period of about eighteen months when he was unable to work due to his mental health.
[62]PFACB 142
66Mr Kamoen is currently working four days a week. He describes needing a ‘mental health’ day and says he does better mentally while working only four days.[63]
[63]PFACB 169
67His treating psychologist says he requires a day off a week to devote to his mental health treatment.[64] He currently sees his psychologist every week.
[64]PFACB 138
68Given my findings that the transport accident has caused a severe long term mental disorder, and Mr Kamoen’s evidence that, at least currently and likely for other periods of time, his mental health has precluded him from full-time work, I am satisfied that he has suffered a pecuniary loss.
69Accordingly, Mr Kamoen will be granted leave to commence proceedings for pain and suffering and pecuniary loss.
Should Mr Kamoen be granted leave under LAA?
70Having been granted leave to bring proceedings to recover damages pursuant to s93(4)(d) of the TAA, Mr Kamoen also needs leave to bring those proceedings out of time.
71Mr Kamoen was fourteen at the time of the transport accident. He turned eighteen on 30 November 2006. Accordingly, the statutory period in which he was entitled to bring a claim for damages expired on 30 November 2012.
72Mr Kamoen says he was not aware that he had any entitlement to bring a claim, and was not so aware until he was informed by his psychologist that he may be able to make a claim for damages. He was unable to recall when this information was given to him by his psychologist, though it was sometime after 19 March 2021. He first consulted solicitors on 10 March 2022 and retained his solicitors on that day.
73Under the LAA, I am required to have regard to all the circumstances of the case in making a determination as to whether it is just and reasonable to extend the limitation period.[65]
[65]Section 27K(2) of the LAA
74The legislation directs me to specific matters I must have regard to in exercising my discretion.[66] Those matters are:
(a) the length and reasons for the delay;
(b) the extent to which there is prejudice to the defendant;
(c) the steps taken by the defendant to make relevant facts available to the plaintiff;
(d) the duration of any disability suffered by the plaintiff;
(e) the extent to which the plaintiff acted promptly once he knew he may have a claim for damages;
(f) the steps taken by the plaintiff to obtain medical, legal or other advice and the nature of that advice.
[66]Section 23L of the LAA
75I accept Mr Kamoen’s evidence that at the time of the injury he had no knowledge that he may have any entitlements. This is particularly in circumstances where he did not suffer any physical injury and where the potential negligent party, the driver, had died. It is not difficult to understand that the prospect of suing his dead friend, was not one that crossed his mind, or the minds of the adults in his life who might otherwise be expected to have informed him of those rights.
76I accept that the first time he was aware he may have a claim was when his psychologist raised this with him. Although he was aware after the accident that he had suffered a psychological injury and demonstrated knowledge of this injury by his calls to the TAC over the years seeking counselling and by his reference to the transport accident as a factor in his condition, awareness of injury and awareness of legal rights in relation to that injury are not the same.
77This is not a situation where he was advised of his legal rights and made a deliberate decision to allow a statutory limitation period to expire and not to commence proceedings.
78Mr Kamoen was a person under a legal disability until the date of his eighteenth birthday. Thereafter there were periods of time when he was severely impacted by his substance abuse disorder. However aside from a hospital admission for a drug-induced psychotic episode, I am unable to conclude that his substance abuse affected him to the point of his being unable to manage his affairs and being a person under a disability for the purposes of s23 of the LAA.
79I have no evidence as to the period of his incapacity following that psychotic episode. He was admitted to Frankston Hospital for some unknown period, but was no longer in hospital by December 2014. Even if his limitation period did not commence until his discharge from hospital, it would still have expired prior to the commencement of these proceedings.
80Once a limitation period has expired, the length of the delay I must consider in exercising my discretion is from the date of the accident, not from the expiration of the limitation period.
81The defendant says it is prejudiced by the delay because it is unable to properly assess the question of causation. Mr Kamoen’s memory is poor and much of the medical material relies on his retrospective attribution of his mental health problems to the transport accident. The defendant says it is unable to make proper inquiries of, for example, workmates and peers of the plaintiff in the years after the accident and to properly test and assess the causation of the plaintiff’s psychiatric injury and drug abuse. The defendant says there is a strong probability that it would not be able to get an acceptably fair trial because of the high degree of general prejudice.
82The defendant does not contend, nor do I find, that it has sustained any specific prejudice in relation to liability issues. The prejudice arises from the court’s capacity to properly assess causation of the plaintiff’s injury.
83However while I accept, as a general proposition, that the longer the delay, the more likely it is that a case will be decided on less evidence than was available at the time the cause of action arose,[67] I am satisfied that the prejudice by the passage of time does not preclude an acceptably fair trial from being conducted in this case.
[67]Brisbane South Regional Health Authority v Sharon Annette Taylor (1996) 186 CLR 541 at [4] per McHugh J
84The medical records are still available, the two surviving witnesses to the accident, being Mr Kamoen and his step brother, are both available, and his treating psychologist and psychiatrist are both available. There is no evidence that the psychologist who treated him in the months after the transport accident is no longer available. Further, although I have not accepted his opinion in this application, Associate Professor Doherty was able to form a conclusive opinion despite the passage of time, including in relation to the development and resolution of the plaintiff’s PTSD. There is nothing in Associate Professor Doherty’s report to indicate that an assessment of the plaintiff is not possible because of the passage of time.
85Accordingly, I am not satisfied that there is general or specific prejudice to the defendant, other than the inevitable prejudice that is assumed with the passage of time, which would preclude an acceptably fair trial.
86The plaintiff criticises the defendant for not informing him of his rights, or suggesting he speak to a lawyer, and for accepting his own assessment as a minor, that he was doing well and did not require further counselling.
87Given that it is no part of the defendant’s obligation to inform a claimant about their legal rights, I do not consider this a matter I must consider in relation to s23A(c).
88I have dealt already with the period of disability. I am unable to ascertain the promptness with which the plaintiff acted once he was aware he may have legal entitlements, save that it must have been less than twelve months, as he consulted his solicitors in 2022. In the circumstances of this case, I do not consider that period of delay inordinate. Once he consulted solicitors I am satisfied they acted extremely promptly by investigating his claim, obtaining medical records and issuing proceedings within three months.
89In assessing the matters I must consider, as well as all the circumstances of the case which include that the plaintiff was just fourteen at the time of his accident, that it was a traumatic accident, and that he appears to have not been supported to any great degree by adults in his life (for example, it appears he was dealing with the TAC directly from a young age), I am satisfied that it is in the interests of justice to extend the period in which the plaintiff has leave to bring proceedings.
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