Koziol v TAC
[2025] VCC 366
•3 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-03921
| EMILY KOZIOL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2025 | |
DATE OF JUDGMENT: | 3 April 2025 | |
CASE MAY BE CITED AS: | Koziol v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 366 | |
REASONS FOR JUDGMENT
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Subject:Serious Injury Application
Catchwords: Transport accident – psychiatric injury – failure to satisfy the test of “severe” injury – impairment consequences – retained capacity – persistent grief reaction
Legislation Cited: Transport Accident Act1986
Cases Cited: Katanas v Transport Accident Commission [2016] VSCA 140;; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Mobilio v Balliotis [1998] 3 VR 833; Humphries v Poljak [1992] 2 VR 129
Judgment: Application denied
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr A Saunders | Antony, Sdrinis & Co Lawyers |
| For the Defendant | Ms F C Spencer KC with Ms N Wolski | Transport Accident Commission |
HIS HONOUR:
1Emily Koziol’s father was struck and killed by a car in 2018 when she was aged 11. She seeks a determination from this Court that she has sustained a “serious injury” being a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of that term prescribed by s93(17)(c) of the Transport Accident Act1986 (‘the Act”) as a result of her father’s death. Her claim was contested by the Transport Accident Commission (“TAC”) on two bases. Firstly, that the impairment consequences were not long-term, and secondly, that if such impairment consequences were long-term, they did not rise to the level necessary to satisfy the test of being a severe long-term mental or behavioural disturbance or disorder.
2For the reasons which follow I have found that the impairment consequences do satisfy the test of being long-term, however, while her impairment consequences might be considered significant or at least considerable, they do not rise to the level necessary to satisfy the test in the Act. For this reason, I deny Ms Koziol’s application.
Relevant history
3The plaintiff was born in November 2006. Her parents were Marek and Anna Koziol. Her father was blinded in an industrial accident. This meant that he used a guide dog when out walking. The plaintiff had a difficult relationship with her mother and, in those circumstances, she gravitated towards her father with who she formed a particularly close bond.
4On Sunday 6 May 2018, the plaintiff was aged about 11 years. She and her mother went to church in the morning. At about the same time, her father was making his way to another church assisted by his guide dog when he was hit by a car whilst crossing Old Calder Highway. He was significantly injured. He was taken to the Royal Melbourne Hospital. Upon returning from their church service, the plaintiff and her mother found a note asking them to contact Victoria Police. They did so and were informed that Mr Koziol had been severely injured. They then went to the hospital. They saw Mr Koziol in his critical and wounded state. He was unconscious and on life support. The plaintiff and her mother hoped that Mr Koziol’s condition would improve. It did not. Ultimately, after about two weeks, they were advised that hopes for his recovery were futile. As a result, Mrs Koziol gave permission to turn off the life support system and he died on 15 June 2018.
5The plaintiff describes the death of her father as “a particularly devasting blow for me as I was very close to him”.[1]
[1]Plaintiff’s Court Book (“PCB”) 15, Affidavit of Emily Koziol dated 8 November 2023 at paragraph [12]
6At that stage the plaintiff was in Year 6 at school. She took about a week off school and then returned. Her evidence was that after his death she continued to think about him constantly and she ruminated over pictures of him. Due to the fact that she was not overly close with her mother she treasured his possessions such as old clothes and mementos to be reminded of him.[2]
[2]Ibid at paragraph [15]
7The plaintiff made the transition to high school at Caroline Chisholm Catholic College in 2019. Her evidence was that she enjoyed school and hoped to succeed at it. Her reports during this period of high school indicate that she was a good student, with good grades and attendance. The material suggests that she was well liked and well regarded by her teachers over her high school years.
8In about 2021 at the age of 15 in addition to school, she began working at a fish and chip shop about 10 hours per week. After some time there she began working at “Grill’d” burger chain for a similar number of hours per week. During her VCE years she gave evidence that she worked her part-time job as well as studying up to five hours per night. She formed a relationship with a boyfriend and this became a long-term relationship.
9In 2023, she swore her first affidavit in this proceeding. In that affidavit she deposed to thinking constantly about her father and that he was never out of her thoughts. She continued to keep pictures of her father in her room and mementos of him. She described visiting the grave less frequently than she used to as she found it upsetting. She deposed to finding it difficult to live with the loss of her father. She described being hopeful of moving out of home when she was 18 due to difficulties with her mother. She otherwise described having a good group of friends who were aware of her circumstances and were supportive of her.
10Shortly after swearing that affidavit the plaintiff was sent by her solicitors to see medico-legal psychiatrist Dr Nigel Strauss. He saw her in September 2023 and provided a report dated 12 September 2023. He took a detailed background history of her family circumstances and then recounted the incidents that led to her father’s death. Specifically, he recorded that currently she was sleeping reasonably well, managing her work and studies, and had aspirations to go on to do law or criminology at university.[3] He commented on the difficult relationship with her mother and how this had been significantly worsened since the death of her father. He recorded that she had never been suicidal, cried frequently in respect of the photos of her father, that she sometimes dreamt of her father and had intrusive memories of the period surrounding his death and time in hospital. On mental state examination he recorded that she was mildly anxious and depressed. He recorded that she had negative thinking and some unpleasant intrusive memories. Overall, he diagnosed her as suffering from a persistent grief reaction with evidence of some depression and traumatisation.[4] He concluded that she would always suffer from a mild to moderate psychiatric reaction relating to the death of her father and the circumstances surrounding that death. He considered that she may need treatment in the future which might constitute five to ten visits to a psychologist, but that it was not currently required.[5]
[3]PCB 47-48
[4]PCB 50
[5] Ibid
11I interpolate to note that the plaintiff at this stage had been seeing her treating doctor, Dr Rofail, since 2019. However, at none of her consultations had Dr Rofail been treating her in respect of any condition related to the death of her father. Essentially then from the date of his death to at least 2024, there had been no treatment or consultations with doctors or allied health professionals regarding her mental state in respect of the death of her father.
12However, in 2024 this situation changed somewhat. About the middle of 2024, while the plaintiff was in Year 12, she consulted with her treating doctor in respect of psychological difficulties relating to her father’s death. Dr Rofail wrote to the TAC on 14 August 2024 noting that the plaintiff presented with “sadness, nightmares and occasional insomnia” due to the sudden loss of her father a few years ago.[6] Dr Rofail recommended regular psychological treatment. That seemed to trigger a referral to a psychologist, Mr Luke Carolan,[7] who began consulting with the plaintiff in November 2024. He recorded her symptoms at that time were panic attacks, nightmares, trouble sleeping, delayed sleep onset, experiencing intrusive thoughts about seeing her father and the funeral.[8] It was reported that these symptoms were triggered by appointments with lawyers and the TAC.[9]
[6] PCB 34
[7]PCB 38
[8] Ibid
[9]Ibid
13At the same time as the plaintiff was seeing her general practitioner and Mr Carolan, she was also in the throes of breaking up with her long-term boyfriend and going through VCE exams.
14The plaintiff swore a further affidavit on 4 December 2024. In that affidavit she confirmed that she had turned 18 years of age and had completed Year 12 studies at Caroline Chisholm Catholic College. It appears that she achieved an ATAR of 84.5 and was then accepted into a psychology course at the Australian Catholic University which is a four year degree. That started in March 2025. She described having grief which came in waves and was more intense two or three times a month. She continued to reside at home though remained hopeful of being able to move out. She also deposed to beginning work at Big W as a retail assistant working 25 to 30 hours per week over five to six days. She deposed to moving her life forward with supportive friends but continuing to miss her father and keep mementos and possessions of him close by.[10]
[10]PCB 22, Affidavit of Emily Koziol dated 4 December 2024
15On 12 December 2024, Dr Rofail reported to the plaintiff’s solicitors. In that report she recorded that the plaintiff had continued with symptoms of persistent sadness, recurring nightmares and occasional insomnia. She also recorded that the plaintiff was experiencing episodes of anxiety with head spinning, nausea and a sensation of vomiting. These episodes lasting 10 minutes or so. These events occurred randomly or were triggered in new social or work situations.[11] These were occurring approximately once per day. It was Dr Rofail’s opinion that this was potentially related to her unresolved grief and current life stressors.[12] In terms of diagnosis, Dr Rofail considered that there were unresolved grief issues which would explain the persistent sadness, nightmares and insomnia; and the episodes of anxiety could align with an adjustment disorder with anxiety panic disorder or generalised anxiety disorder.[13] Dr Rofail prescribed Escitalopram 10 mg (Lexapro).[14]
[11] PCB 35
[12]PCB 36
[13]PCB 36
[14] PCB 37
16The plaintiff saw Mr Carolan on 5 December 2024 and 20 December 2024. No recordings of the head spinning, nausea type episodes were made. A program of cognitive behaviour therapy was commenced.[15]
[15] PCB 44
17The plaintiff returned to see Dr Strauss in January 2025. He continued to diagnose her with a persistent grief reaction causally related to the motor vehicle accident and considered she might require ongoing future treatment. He took a history that her sleep was often disturbed and she had occasional non-specific nightmares. However, he took a history of no flashbacks but unsettled memories relating to her father’s death.[16] He took no history of the head spinning, nausea type episodes recorded by Dr Rofail in December 2024. He considered that the pressures of Year 12 had a role in her recent presentation, but that it was predominantly related to the death of her father.
[16]PCB 59
18The plaintiff’s solicitors also sent her to see Dr Leon Turnbull another medico legal psychiatrist who she consulted in January 2025. He took a history that she had intrusive recollections of seeing her father in hospital and sometimes unpleasant dreams about the circumstances of his death. He noted that she had dizzy type spells that seemed anxiety related.[17] He took a history that her sleep was occasionally peppered with unpleasant dreams. Ultimately, he diagnosed her with an adjustment disorder which required treatment of perhaps two years with a psychologist. He considered that at this stage her work and study capacity were unclear and would depend on how she coped with stress.
[17]PCB 65
19The defendant arranged for the plaintiff to be examined by Associate Professor (“AP”) Peter Doherty, for a medico legal psychiatric opinion in February 2025.
20He took a history from her in respect of the circumstances of her father’s death. As to her current symptoms, he took a history of poor dreams and nightmares in relation to her father of about two times per week, and difficulty with not sleeping properly. He diagnosed a prolonged grief reaction with mild features of traumatisation. He considered that the future was positive and favourable with treatment which included an ongoing small to moderate dose of Lexapro.
21On the first day of trial the plaintiff swore a further affidavit dated 13 March 2025 and adopted it in evidence. In it she confirmed her earlier affidavits and deposed to at least thinking about her father once a day. She deposed that at those times grief might make her feel especially teary. She then deposed to getting episodes of anxiety daily where her heart would beat very fast and she would feel dizzy and nauseous. At those times she deposed she had to stop what she was doing and try to calm herself down. She also deposed to not sleeping well and most nights having difficulty going to sleep. At least a few times a week she would have nightmares about her father’s death and what happened to him. In those times she would wake feeling panicked and worried and have a real difficulty going back to sleep, such that when she woke up she often felt not refreshed.[18]
[18]PCB 254, Affidavit of Emily Koziol dated 13 March 2025 at paragraphs [14]-[20]
The plaintiff’s evidence
In cross-examination it was broadly suggested that the affidavit sworn on the morning of trial represented an exaggeration of some of her symptoms. In particular, her evidence as to her sleep, her nightmares and her head spinning, nausea type episodes.
22Overall, there was no attack on her credibility, but the reliability of her evidence on these topics was challenged. It can be seen from the recounting of the history above, that the evidence in respect of these three topics vary considerably from when she swore her first affidavit, to the last affidavit that she swore, and the recounting by medical practitioners in between. The first thing to note is that the first affidavit sworn in November 2023 seems to be different because it was sworn at a different stage of the development of these symptoms. It may be that she was not suffering from these problems at that stage, and that is the assumption that I make because it is not in the affidavit and she had not seen any medical practitioner about this. On the chronology it appears that such symptoms develop in mid-2024. At that stage they are recorded by both the treating doctor and also Mr Carolan. It is notable, however, that in the second affidavit which was sworn on 4 December 2024, the matters in respect of sleep, nightmares and the head spinning, nausea type episodes are not mentioned in the affidavit at all. However, once again they are featured in the treating doctors notes, and those of Mr Carolan.[19] It is notable that the January 2025 medico-legal reporting of both Dr Strauss and Dr Turnbull do recount these matters in respect of sleep and nightmares but not these panic attack, “pre-syncope”, “head spinning”, and “nausea” type symptoms. The frequency or depth of these symptoms I will return to but they are certainly recorded by these practitioners. The third affidavit recounts these matters, but once again in slightly different detail as to depth and frequency of sleep and nightmares. It must be said then that the third affidavit does not really break new ground given these matters of sleep and nightmares were recorded as far back as August 2024 by the treating doctor, the psychologist and then later by the medico-legal practitioners. There is what I consider to be reasonably marginal variation as to the depth and severity of these sleep and nightmare symptoms in the third affidavit to that recorded by the medico-legal practitioners. This is of reasonably minor significance overall I find in assessing the reliability of the plaintiff’s evidence. I will deal with the issue of the variation in symptomology shortly, but at this stage I record that I consider the plaintiff to be an entirely credible witness who gave reliable evidence, and who readily conceded matters during the course of her cross-examination. For example she conceded that prior to mid 2024 she slept reasonably well. She struck me as being fair and balanced and attempting to answer as best she could. For example conceding that her panic attacks were only a more recent development in her symptoms. To the extent there was variation as to the frequency of sleep difficulties, panicky episodes and nightmares I consider these marginal and not to impact on her overall reliability.
[19]PCB 38; Reference to “panic attacks,” is consonant with Dr Rofail’s recording of “pre-syncope” episodes at PCB 35
23As to the “panic attacks”, “pre-syncope”, “head spinning”, and “nausea,” she deposes that such episodes still occur daily.[20] The drafter of this affidavit has seemingly drawn this from Mr Carolan’s December 2024 recordings and doesn’t account for later histories taken by him. I consider it inaccurate and prefer AP Doherty’s history. However, such episodes are not recorded by Dr Strauss or Dr Turnbull. AP Doherty takes a history of lessening panic attacks. Given this history, I accept there has been a lessening of such episodes since December 2024. I consider the plaintiff’s evidence on this point an overstatement of the frequency of these episodes. The history and lack of reporting by both Dr Strauss and Dr Turnbull supports this and it is consistent with an improvement after medication and counselling. I also note she accepted this last affidavit was drafted in haste and contained errors.
[20] PCB 254, Affidavit of Emily Koziol dated 13 March 2025 at [14]-[15]
What was the injury caused in the motor vehicle accident?
24The Court in Katanas[21] confirmed that the assessment of such cases involving the narrative test in the Act involves a two stage process.[22] The first is an assessment of the nature, symptoms and consequences of the injury subjectively for the applicant. The second is whether the injury thus assessed is objectively serious when compared with the range or spectrum of comparable cases.
[21] Katanas v Transport Accident Commission [2016] VSCA 140
[22] Ibid at [6]
25Beginning with the first stage. There was no argument in respect of the fact that the plaintiff had suffered psychological injury as a result of the motor vehicle accident in which her father was killed. There was some debate as to the exact diagnosis of that condition. This was for two reasons. The first was that the defendant sought to argue that some symptoms, such as anxiety, were related to other causes such as the stress of Year 12 VCE or the plaintiff’s breakup with the her boyfriend in 2024 which therefore did not form part of the diagnosable condition. Second, though of less weight, was the argument that the diagnosable condition itself informed the impairment consequences.
26Dealing with the first issue. I consider that the evidence in this case is reasonably overwhelming that the plaintiff’s ongoing extant psychological condition is related to the motor vehicle accident. This much can be seen from the treating doctors’ material,[23] the treating psychologist Mr Carolan,[24] the medico-legal reporting of Dr Strauss,[25] and the medico-legal reporting of Dr Turnbull.[26] It can be seen that the countervailing opinion of AP Doherty,[27] that there are unrelated external factors contributing to the presentation is an outlier. I would not accept it for that reason.
[23]PCB 36
[24]PCB 38
[25]PCB 60
[26]PCB 67
[27] DCB 14
27Second, I consider the exact diagnosis of the psychiatric injury to be less relevant than a consideration of the impairment consequences which flow from any diagnosed condition. Here, I consider the best diagnosis of the condition to be that provided by Dr Strauss. I prefer Dr Strauss’ opinion for the following reasons. First, he consulted with the plaintiff in 2023. At this stage, she had not consulted her treating doctor or sought any treatment. This was also at a time before the stress of the VCE Year 12 or any issues to do with the breakup with her long-term boyfriend became apparent. It allowed him to create a report clear from those other influences. Second, he is the only medico-legal practitioner to have seen the plaintiff on two occasions. The second occasion occurred after the events of 2024 when she began seeing her doctor for worsening symptoms and began treatment with the psychologist. His report then had reference not only to her worsened state, but that further material which he analysed in contradistinction to the position in 2023. I consider overall that he had the best opportunity to assess the plaintiff and her condition. This was particularly important as it allowed him to assess the impact of the VCE stressors and the effect of her relationship breakup. In addition, he took a thorough history from her which ultimately informed his diagnosis. While the treating doctor has ventured an opinion as to a potential diagnosis of her condition, I consider Dr Strauss to be far more qualified to make a psychiatric diagnosis. I prefer his opinion to that of Dr Turnbull, whom I consider had only a brief assessment of her history and this did not allow him to properly ground any findings. I also prefer Dr Strauss’s reporting to that of AP Doherty, particularly given that he only saw the plaintiff once and did not have Dr Strauss’s ability to properly assess the before and after picture. Similarly, I do not consider Mr Carolan’s opinion as authoritative as that of Dr Strauss given that he is a psychologist. Furthermore, he is the only mental health practitioner who considers that a post traumatic stress disorder is present when this is certainly an isolated view. I put it aside.
28As a result, I find that the plaintiff suffers from a persistent grief reaction related to the death of her father. This is in accordance with Dr Strauss’s view.[28] I further consider that such condition is causally related to the motor vehicle accident and it will be a permanent condition.[29] I come to that finding in respect of permanency and the long-term nature of her condition, once again in reliance of Dr Strauss’ view. I put aside the other opinions, particularly that of AP Doherty, for the reasons expressed above.
[28]PCB 59
[29]PCB 60
What are the consequences of the psychiatric injury?
29I accept that the impairment consequences that the plaintiff suffers from are the following:
(a) sadness – I accept the plaintiff’s evidence that she is sad much if not all the time and it affects her ability to find enjoyment in things;[30] at least once a day she will think about her father and feel especially sad. She becomes teary at those times;
(b) the plaintiff often cries, often becomes overwhelmed and can become unsettled;
(c) anxiety – I accept that the plaintiff finds it difficult to cope with stressful things such as Year 12 or being in heavy traffic.[31] I do not accept that she experiences such episodes daily. I consider more broadly that the anxiety relates to stressful events such as her VCE which concluded last year, and the better evidence, on balance, is that such episodes occur when these particularly stressful events occur. That is not an everyday occurrence. This is also consistent with the evidence of Dr Rofail,[32] where she describes periods of anxiety occurring randomly triggered by new social or work situations. She has lessening episodes of panic attacks which are of short duration;
(d) her sleep is impacted and most nights she has difficulty going to sleep, with nightmares a few times a week about her father’s death;
(e) in terms of treatment she requires Lexapro in a modest dose daily which she finds helpful. She also has fortnightly counselling with a psychologist and such treatment is likely to continue for 6 months to up to 2 years.
It is also to be recognised that she is a young person and so the effects of this event will be with her for an extraordinarily long time.
[30]PCB 253, at paragraph [9]
[31]PCB 254, at paragraph [13]
[32]PCB 35
What has the plaintiff retained?
30In making the assessment required in accordance with the narrative test it is useful to have regard to what the plaintiff has retained.[33] Here, the plaintiff has at all times been independent in the personal activities of daily living. She suffered the loss of her father at the age of 11 and has successfully navigated her early and late teenage years. She held down part-time work and studied throughout her later high school years. Her evidence is that she worked extremely hard at school, studying up to five hours per night during VCE. This helped her to achieve her aim of a good ATAR score and entry into a university course. She has now commenced that university course full time and in fact has increased her hours of part-time work to between 25 and 30 hours per week. This indicates a real ability to function at a high level, even with the diagnosed psychiatric condition.
[33] Dwyer v Calco Timber (No 2) [2008] VSCA 260
31During this time, she has had successful relationships. These are with a good group of supportive girlfriends. She does pleasurable activities with them. In addition, she has had a long-term boyfriend during her later teenage years. Unfortunately, that relationship broke down in 2024. However, more recently, she has formed a new relationship with a partner and describes this as a good relationship. This represents the ability to form and maintain strong interpersonal relationships in the face of her ongoing psychiatric condition.
32She has also demonstrated successfully the ability to plan and achieve goals. That is at work, in study and in personal relations. While she continues to plan to move out and has thoughts of independent living, the only reason this has not been successful is due to finances.
33Overall, the plaintiff deposes to finding enjoyment in several other things. These are her friends, outings, her study and obviously her relationship.
34While the plaintiff has remained on a low dose of Lexapro since late 2024, this has not been increasing in frequency or dosage. She is seeing a psychologist regularly and it is posited that she might require ongoing counselling for perhaps six months or two years.
35I am conscious that in making this assessment that treatment by itself is not a marker of the severity of the impairment consequences. Similarly neither is the label of the psychiatric condition an indication of its severity.[34] Further in Katanas, the Court said:
“We see no reason to doubt that applicant’s counsel was correct in submitting that a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment.”[35]
[34] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at [95]
[35] Katanas v Transport Accident Commission [2016] VSCA 140 at paragraph [20],
36Overall the test imposed by the Act is that the impairment consequences under paragraph (c) must be severe. The Court in Mobilio identified that term in the following way:
“ “…without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ was used in the definition as a stronger word than ‘serious’.”[36]
[36] Mobilio v Balliotis [1998] 3 VR 833 Brooking JA at 846
37This comment rested on obiter remarks made by McGarvie J in Humphries v Poljak[37] in which he considered that there was little doubt “severe” connoted “grievous” or “extreme”.
[37] Humphries v Poljak [1992] 2 VR 129 at 159
38Stepping back to assess the situation, I consider it could fairly be said that the plaintiff has suffered significant blow when her father was killed. She has been left with a persistent long-term problem and it will affect her well into the future. Given her age this is a long time. However, despite this, she has lived a life with enjoyment, achievement and with real hope for the future with friends, the ability to have intimate relationships and with a university course ahead of her. As I have indicated, while I consider that the impairment consequences for the plaintiff could be considered significant or considerable, they do not rise to the level which can be considered to be “severe” when compared with the range or “spectrum” of comparable cases.
39That is the test which the plaintiff cannot meet in this case. As a result I deny the plaintiff’s application.
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