Mateos v Transport Accident Commission

[2015] VCC 1112

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-13-05541

MIGUEL MATEOS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 and 29 July 2015
DATE OF JUDGMENT:	20 August 2015
CASE MAY BE CITED AS:	Mateos v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 1112

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:             Transport accident – serious injury – consequences of the plaintiff’s mental or behavioural disturbance or disorder – whether such disturbance or is severe or long-term

Legislation Cited:     Transport Accident Act (1986), s93
Cases Cited:            Humphries & Anor v Poljak [1992] 2 VR 129
Judgment:                Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B W Collis QC with Mr M J Ruddle	Verduci Lawyers
For the Defendant	Ms J Dixon QC with Mr J Valiotis	Solicitor to the Transport Accident Commission

HIS HONOUR:

1       On or about 13 June 2000, the plaintiff, Mr Miguel Mateos, was involved in a transport accident in Laverton (“the collision”).  He alleges that he suffered a number of injuries as a consequence of the collision but in particular, psychiatric or psychological injuries.

2       He seeks the leave of this Court to issue a proceeding to recover damages in respect of those injuries.

3 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Mateos must satisfy the Court that he has suffered a “serious injury”.[1]

[1]Section 93(6) of the Transport Accident Act 1986

4       The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application, as “… severe long-term mental or severe long-term behavioural disturbance or disorder …”.

5       Mr Mateos alleges that, as a consequence of the collision, he has suffered from Post-Traumatic Stress Disorder, depression and anxiety.

6       In order that the Court may consider an injury to be “serious”:

(a)    The consequences of the injury must be serious to the particular applicant;

(b)    Those consequences may relate to pecuniary disadvantage and/or pain and suffering;

(c)     The question to be asked is whether the consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[2]

[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140

7       Mr Mateos alleges that the consequences of his injuries satisfy the threshold test as being “at least very considerable”.  The defendant denies that this is so. 

8 For the reasons that follow, I am not satisfied that Mr Mateos has suffered a “serious injury” as that term is defined in paragraph (c) of s93(17) of the Act.

Background

9       Mr Mateos is aged fifty-three.  He was born and educated in the Philippines.  After completing school, he commenced, but did not complete, courses in engineering, business administration and computer work. 

10      In 1986, when aged twenty-five, he migrated to Australia.  Initially, he worked as a labourer for about two years, a hotel butler for about five years and from 1991, as a laser printer operator.  Until mid-2001, his work record was good.

11      Initially, he lived and was employed in Sydney.  Whilst there, he formed a de facto relationship with Elicia Duncan. Three children were born of that relationship.  By 1996, there were problems with the relationship and Mr Mateos moved to Melbourne, intending to start afresh.  Evidence of the date of their separation was confusing.  It varied from separation in 1996 to 2001 and 2002.  In the chronology provided by counsel for Mr Mateos, the year 1996 is specified, and I consider that is consistent with Mr Mateos’ oral evidence.

12      In Melbourne, Mr Mateos continued to work as a laser printer operator.  Some short time afterwards, Ms Duncan arrived in Melbourne with the three children.  Although Mr Mateos saw Ms Duncan and his three children reasonably regularly, the relationship was never resumed.  Ms Duncan had formed a relationship with another man.

The collision

13      On 13 June 2000, Mr Mateos was driving on Sayers Road, Laverton when an oncoming vehicle crossed onto its incorrect side of the road and collided head-on with his vehicle. 

14      His memory of the collision is somewhat vague.

15      It appears that he lost consciousness for a time.  He was taken by ambulance to the Western Hospital.  There, he was examined, and x-rays were taken.  He was advised that no fractures had been detected and then he was released from that hospital the next morning.

Post-accident

16      I accept that Mr Mateos was absent from work for a period of one to two weeks.  At the time, he was employed by GBM Logic as a laser printer operator.

17      He continued working in that capacity for approximately one year after the collision.  He deposed that he was experiencing difficulties coping with his work and, because of poor performance, was made redundant.  There was no evidence from anyone associated with that workplace concerning the reason for him leaving that job or of any apparent difficulties in performing his duties there.

18      In his affidavit sworn on 22 October 2012, Mr Mateos deposed that, soon after the collision, he began to develop personality changes – he said he did not communicate well with his children, he had problems with his ex-partner, and he was frustrated and irritable.  There was no supporting evidence concerning such matters from any of his nephew and brother (both of whom he lived with in the years following the collision) or from any person with whom he worked, or from Ms Gatt, with whom he has lived for some time.  He further stated that, in hindsight, he became increasingly anxious and depressed and suffered frequent flashbacks, memories and nightmares of the collision.  

19      Physical injuries suffered in the collision appear to have been minor and consisting of some bruising and general soreness from which he recovered quickly. The evidence concerning symptoms of mental or behavioural disturbance or disorder since the collision and treatment he received in relation to such matters is complicated and, in parts, unclear.

20      For more than a year after the collision, he appears not to have sought any medical attention at all in respect of physical, mental or behavioural issues.

21      On 11 July 2001, about thirteen months after the collision, Mr Mateos was taken by his then boss to the Emergency Department of the Dandenong Hospital.  He was later taken to The Alfred hospital, where he was admitted for some days in what appears to have been a psychiatric ward.  Mr Mateos’ evidence was that he had suffered from a “nervous breakdown” at that time.

22      Clinical notes from The Alfred hospital were tendered.[3]  They reveal that Hospital staff noted that Mr Mateos had claimed that one of the major precipitants to his then current depressive episode was “problems at work”.  Mr Mateos gave evidence that earlier in 2001, his shift had been changed from the afternoon to the morning.  The result of this was that he received less by way of additional allowances, which placed him under considerable financial pressure.  He had understood, initially, that the change in shift was to be a temporary one, but later he learned that it was to be permanent. 

[3]Exhibit 4

23      Hospital staff had noted that a general practitioner, Dr Sison, had suggested to Mr Mateos that he might be able to claim WorkCover benefits relating to stress caused by his work and the impact of it on his mental health. 

24      Whilst an inpatient at The Alfred hospital, Mr Mateos was seen by the Psychiatry Registrar, Dr Elliot, who, on 11 July 2001, reported that Mr Mateos was currently suffering from Post-Traumatic Stress Disorder and associated Depression.  Dr Elliot thought it clear that this illness related to the collision of June 2000.[4]

[4]Defendant’s Court Book (“DCB”) 7

25      There was no evidence from his boss as to the circumstances of that admission or as to his behaviour at work.

26      On 17 July 2001, Mr Mateos discharged himself from The Alfred hospital against medical advice.  In The Alfred hospital records, a document entitled “Clinical Discharge Information” and seemingly prepared at about the time of his discharge, the following matters were noted:

·    Motorcar accident twelve months ago (passengers killed/paralysed).

·    Pending loss of employment.

·    Marital separation.

·    Financial difficulties.

·    Imminent repossession of his car.

·    Social isolation and lack of support.

·    Living with nephew since March 2001.

·    He had had a succession of social stressors since August 2000, when involved in motorcar accident.  PTSD symptoms since.

·    Separated from wife March 2001.

·    Resigned from previous job at around the same time.

·    Pending loss of current job because of absenteeism.

·    GP commenced him on fluvoxamine one month ago because of depressive (vegetative symptoms).  No improvement.

·    PTSD/depressive symptoms since August 2000 following motorcar accident.[5]

[5]Exhibit 4, pages 243-4.

27      I accept that these issues, as referred to, were described by Mr Mateos to various Hospital staff during the period of his admission.

28      On 3 October 2001, Dr Berger referred Mr Mateos to Dr Schrueder, a psychiatrist, who he saw on a number of occasions in late 2001 and in February and June 2002.  He was prescribed the antidepressant medication, Effexor.  He has not returned to see Dr Schrueder since that time.

29      

Mr Mateos was seen on other occasions at The Alfred hospital Psychiatric Department – The Alfred hospital clinical notes disclosed that he was there on

10 February, 1 March and 5 April of 2002.  The hospital notes record that he reported that he had been abusing heroin at that time.

30      On 14 June 2002, Mr Mateos was seen at St Vincent’s Mental Health Service.  The hospital notes record that he was depressed; that he had been using heroin; he had accommodation issues; he had suicidal ideation; he had financial difficulties, and he had been in conflict with his brother, having spent $2,000 on heroin that had been lent to him.[6]

[6]Exhibit 4, page 413

31      The material subpoenaed from Victoria Police indicates that on 30 June 2002, Mr Mateos’ former partner, Ms Duncan, had made further allegations of violence against him.  Police had been called to her address but no charges were laid.  I do not accept that such allegations were necessarily true, but I do accept that they were made and that, even if untrue, that would have been a stressful time for him.

32      On 9 August 2002, Mr Mateos took part in an armed robbery of a convenience store.  He was charged with that offence and also with possession of an unregistered handgun.  The gun in question may have been an imitation one.  He was arrested on that date and remanded in custody.  Some months later, he was convicted and sentenced to prison for two-and-a-half years with a minimum non-parole period of eighteen months.  He served eighteen months in prison and was released in February 2004.  His time in prison was not happy for him.  He reported that whilst in jail, he felt suicidal and was also upset and angry that the Department of Human Services had taken his children away from him.[7]  The reference to his children being taken away from him is confusing, in that his evidence was that, at all relevant times, his three children had remained living with Ms Duncan and her new partner since she arrived in Melbourne.

[7]Plaintiff’s Court Book (“PCB”) 75

33      Following his release from prison in February 2004, there was no evidence that Mr Mateos received any medical treatment for Post-Traumatic Stress Disorder, Depression or Anxiety for some five-and-a-half years until November 2009.

34      During that period, on 25 May 2006, police alleged that Mr Mateos was a passenger in a motor vehicle and observed injecting amphetamines.  On 14 February 2007, at Sunshine Magistrates’ Court, he was found guilty of charges of possession of amphetamine, cannabis and a drug of dependence. The Magistrate adjourned the matter until 3 December 2007 upon Mr Mateos agreeing to various conditions relating to drugs.  On the adjourned date, the matters were dismissed, he having complied with the terms of the undertaking.

35      On 9 August 2006, Mr Mateos was convicted by the Werribee Magistrates’ Court of theft from a shop, and fined $250.  The evidence did not disclose the date of that offence.

36      On 24 January 2007, police attended at Ms Duncan’s residence following further allegations by her of violence and threats made by Mr Mateos, and property damage by him.  At that time, Ms Duncan had alleged that Mr Mateos had taken hold of a knife and threatened to stab himself with it.  These events were alleged to have occurred whilst his three children were at home, together with Ms Duncan’s younger two children from a different relationship. Notwithstanding the allegations, no charges appear to have been laid in relation to these matters.

37      It was clear from Mr Mateos’ evidence that virtually from the time he moved to Melbourne in 1996, he had had problems with his former partner concerning access to his three children.  In addition, he had a poor relationship with Ms Duncan’s new partner, who he believed had various problems with police and who had also been in jail on one or more occasions.

38      

On 20 November 2009, Mr Mateos was seen by a general practitioner,

Dr Freyer.  It appears that he saw him on various occasions between that date and 10 October 2012, although the doctor’s report does not disclose the dates or the number of attendances.  Dr Freyer noted that Mr Mateos had been taking antidepressants and anxiolytic medication and attending counselling and various psychiatric assessments.  The report does not disclose who had provided such counselling and assessments or what medication was administered by Dr Freyer during this period.

39      On 31 January 2012, Mr Mateos was referred by Dr Freyer to a psychiatrist, Dr Akinbiyi.  He took a history that Mr Mateos had been taking the anti-depressant, Effexor, for some six years (if so, that would be from about 2006). Although Dr Akinbiyi reported to Dr Freyer that his plan was to switch the medication from Pristiq to Effexor,[8] it is likely that that the proposed switch was from Effexor to Pristiq.  In his report of January 2015, Dr Akinbiyi stated that he was currently on Pristiq.  Regrettably, there was no evidence as to the number of attendances Mr Mateos had on Dr Akinbiyi or when he last saw him.

[8]PCB 72

40      In January 2015, Dr Akinbiyi reported that Mr Mateos was being case managed by Inner South Community Mental Health and that his general practitioner was Dr Simon Rose of the St Kilda Superclinic.[9]  At the hearing of the application, there was no evidence from either Inner South Community Mental Health or Dr Rose.

The Current Affair programs

[9]PCB 74

41      Quite apart from problems with the law and with getting access to his children, in 2006, and again later in 2011, Mr Mateos received unwelcome publicity from a television program entitled “A Current Affair” (“ACA”).  He perceived that he had been accused in the ACA program of having defrauded Centrelink, an allegation which he denied was correct.

42      For nearly nine years – from 2006 until the present – he appears to have been deeply upset by those allegations and heavily involved in a campaign to clear his name for the benefit of his children and also for his own benefit.  The importance of the issue to him is borne out by a number of documents tendered.

43      In the records of The Alfred hospital tendered, there is a “Psych CATT Short Assessment, Final Report” by Gary Dodd dated 3 March 2014.  In that report, Mr Dodd states:

“Self presented to ED today seeking help in the context of recent decline in mood related primarily to ruling by the privacy commissioner 24/2.  Since says has been feeling increasingly overwhelmed, distressed, lowered mood, tearful, poor sleep & appetite, no energy.  Some suicidal thoughts but no actual intent on Ax.  Some thoughts to ‘blow up’ channel 9 as feels deeply victimised and unfairly portraid [sic] by ACA but again nil actual intent to do so.  Wanting help and willing to engage with community psych services.  Denies any current ETOH/illicit drug use … .

Reports he has a Hx Depression and PSTD dating back to 2000 when had MCA.  Had been treated on efexor for years but changed to Pristiq about two years ago.  Says he has managed generally but is feeling overwhelmed now related to ‘ongoing harassment and victimisation’ by channel 9 current affairs program.  Miguel says that the whole saga has been going on for 8 years.  Reports that in 2006 ‘A current affair’ (ACA) in Sydney on channel 9 ran a story about him reporting that he and his family were Centrelink cheats.  Miguel adamant that the story was unfounded and says he ‘begged them’ not to televise the peace [sic], but nevertheless did. Subsequently he was investigated by Centrelink and as a result of stress had several admissions to Werribee Psych

07 - 09.  Says more recently in 2011 ACA ran another two peices [sic] on him accusing him of further Centrelink fraud, which he again denied, and says has been trying to clear his name and obtain some sort of apology since.  Miguel says the exposure on national television has had a huge impact as he is not seen to be trustworthy etc.  Says children were also impacted severley [sic] when they were at school as were bullied and taunted.  Says his youngest son (now 18) subsequently dropped out of school as a result and spiralled downhill, currently using drugs.  Denies any criminal charges have ever been laid in relation to supposed Centrelink fraud etc.

Over the last 2-3 years Miguel has made formal compliants [sic] to the media authority for breach of code and says channel 9 were found guilty of unfair identification, privacy breach pertaining to himself and child.  He then took matters further to have channel 9 accept responsibility for what he perceives they have done to him, and reported Centrelink and ACA to the privacy commissioner.

Trigger to todays [sic] presentation is that on 24/2/14 the Privacy commissioner found that neither ACA nor Centrelink behaved outside the law and were within their rights to run the story, and for Centrelink to investigate him.

Says the decision has deeply distressed him.  Says over the past 1/52 or so since his mood has worsened, has been sleeping very poorly, no energy, feeling dejected and victimised.  Reports increasing thoughts to take OD although nil intent to do so.  Also says he has fantazising [sic] about blowing the channel 9 building up although again quick to say he had no actual intent to do so.

Says he just wants some sort of apology from channel 9 to clear his name.  Said until that happens everybody will continue to think he is a fraud and not to be trusted.  Says the ruling by the privacy commissioner was the last straw saying ‘do I have to kill myself to make my point… It’s unfair to do this to somebody…I don’t know what to do’.”[10]

[10]Exhibit 4, pages 233-234

44      Progress notes dated 6 March 2014 written by Ms Carolyn Breadon include the following:

“… 52-year old divorced father of 2 adult children seen initially in ED by CATT in crisis.  Miguel is highly distressed because his most recent attempt to achieve “justice”’ from Channel 9 has ended with the Privacy Commissioner closing his complaint.

Miguel feels he has been unfairly targeted by A Current Affair who ran a segment exposing welfare cheats featuring him and his ex-partner, whom they alleged were living together in contravention of the rules surrounding the single parent’s benefit.  This segment was run in 2006.  Miguel successfully challenged the airing of this segment by making a claim to the relevant body governing voluntary self-regulation of the media, which ruled that his privacy and that of his children was breached by filming them all without his consent.

However, there were no penalties arising from this ruling.

Miguel was featured once again in 2011.  He feels this was “payback” by the ACA, whom he thinks are still keeping him under surveillance by cameras posted on the shorefront in front of his home.

Miguel feels that his life has been ruined by ACA, and to a lesser extent by DHS which he thinks provided ACA with information about him.  He thinks that his son left school early and got involved with drug use because of the teasing at school around this issue, and also feels that he himself is more withdrawn and less sociable since the airing of the television segment.  He feels that his integrity has been challenged in public and he thinks that his children want him to clear the family name.  He has been trying to do this but feels quite powerless after this feedback from the Privacy Commissioner.  All he wants is an apology.

He then has idle thoughts about how he could take matters into his own hands and suicide or blow up a building.  However, he knows that this would not achieve anything really.  He doesn’t want to go back to jail and after expressing these thoughts and getting up and pacing around the room came back to the table and apologised for getting so worked up.

Miguel’s partner feels that the anti-depressant has been making him agitated and irritable in the past month.  She wonders if he is on the right medication.  She thinks that the diazepam is helpful for him as it calms him down.  Miguel himself is undecided as to whether or not the anti-depressant is having a positive effect on him.

Past psychiatric history: 6 past admissions to The Alfred Hospital Psychiatric Inpatient Unit and Werribee Mercy Psychiatric Inpatient Unit in the context of distress, threats and agitation regarding the above issue.  Past diagnoses include Major Depressive Disorder, PTSD (after a motor vehicle accident in 2006).

Medical history: MVA 2006.

Drugs/alcohol: not significant at present.

Forensic: armed robbery; convicted 2001, released from prison 2005.

Personal history: Both children are grown up and were taken from his care in 2006 (unclear what the reason for this was).  He is in telephone contact with his daughter whom he has not seen since that time …

Content as above; ruminating about the injustice in his life and his sense of powerlessness.  Voicing threats to kill himself and others without any weight behind these; alternating these threats with a more realistic assessment of his situation and his option.

Impression; 52-year old man with limited social supports and contacts presents [sic] now with increased distress after finding another legal avenue of appeal against the exposure of his privacy closed.  Miguel has a histrionic interpersonal style which involves quite theatrical behaviour and demonstration of his frustration.  He is well used to obtaining help and support from mental health services and is appropriately seeking this at this time.  There is no evidence of any emotional disturbance aside from anger and his current presentation.  There is no evidence of any other mental health disorder such as psychosis.  Miguel is well able to reason his way through a chain of events and consequences, and his ability to make decisions and judgements is not impaired.  He does not meet the criteria for any kind of involuntary detention.  His very low dose anti-depressant is not likely to be helping his mood to any significant extent and similarly ceasing it would not be a significant benefit either.  He does seem to be less agitated and angry when he takes diazepam. 

Risk/issues:  Miguel appears to be extremely frustrated by the course of recent events and this frustration may cause him to act in an aggressive or violent manner.  It does not appear that this behaviour would be influenced by any mental health disturbance at this current time, and hence he is no more at risk of acting inappropriately or destructively at present than he would be at any other time.”

The first and third motor vehicle accidents

45      I find that, in addition to the subject collision which occurred on 13 June 2000, Mr Mateos was also involved in motor vehicle accidents before and after that collision, in July 1999 and October 2000.

46      I find that on or about 24 July 1999, Mr Mateos injured his neck, lower back, right wrist, right ankle, and cracked his dentures in a motor vehicle accident, the details of which are not disclosed in the evidence.[11]

[11]See PCB 62

47      Further, I find that Mr Mateos was the driver of a car involved in a motor vehicle accident on 19 October 2000, about four months after the subject accident.  Senior Counsel for Mr Mateos conceded that the third accident occurred in Jennings Street, Laverton.  Police records[12] record the details of that accident.  It is recorded that it occurred on that date at 5.25pm.  Police attended.  Mr Mateos is recorded as being the left front-seat passenger.  His son, Dillan, then aged seven, is recorded as being a left rear-seat passenger.  Elicia Duncan is recorded as being the driver of the vehicle.

[12]Exhibit 1

48      The evidence concerning this third accident is confusing, to say the least.  In his oral evidence, Mr Mateos denied he had been in any such accident. Rather, he said that, as a pedestrian, he had observed the accident.

49      In February 2006, Mr Jonathan Rush (orthopaedic surgeon) took a history form Mr Mateos that, in a subsequent accident, probably some time in the year 2002, he had been a passenger in a car which apparently rolled.  Later in his report, he records the history as being that the subsequent accident probably occurred in the year 2000 and that the car got out of control and rolled.

50      In The Alfred hospital records of 11 July 2001, the following is recorded in the Inpatient Progress Notes relating to Mr Mateos:

“Disclosed that he was the driver in his second car accident, not his wife as he had previously stated. Reports that he asked his wife to collude with him for fear that he would get into trouble – Also the reality of ‘reckless behaviour’ hit him – he was speeding & he recognised he could have killed his son. This event coupled with the first car accident in which one person was killed, the other was paralysed has reacted in in gradual decompensation & PTSD.”[13]

[13]Exhibit 4, page 515

51      Although there is a possibility that there was a fourth accident in 2002, I consider it more likely that the accident referred to in the history given to Mr Rush is the same as the accident recorded by police as having occurred on 19 October 2000.  I consider that it is likely that this is the accident referred to in the history provided by Mr Mateos to hospital staff at The Alfred hospital on 11 July 2001.  Mr Mateos made no mention of either the 1999 or October 2000 accidents in either of his two affidavits.

52      In his oral evidence, Mr Mateos denied being a passenger in the car in the October 2000 accident and said his former partner (Ms Duncan) had been the driver and that he had observed the accident occur as a pedestrian.

53      Mr Mateos’ evidence concerning the October 2000 accident was unimpressive.  I consider that it would be extremely unlikely that hospital staff would make up the content of the note referred to above.  I consider that the source of the information contained in the note was Mr Mateos.  I consider it probable that he was telling hospital staff the truth at that time.

54      I am not able to say what injuries were suffered by Mr Mateos in that accident. However, I do find that it was an accident of substance; that he was likely to have been the driver of the only vehicle involved in it; that he had reached an agreement with his former partner that she would be held out to police as the driver; that he had, perhaps somewhat belatedly, realised that his reckless behaviour could have killed his son, who was a passenger in the vehicle at the time.

Diagnosis of injury and consequences thereof

55      Reports from a number of psychiatrists were tendered by one or other of the parties. It was common ground that diagnoses concerning mental or behavioural disturbances and the cause of them were reliant to a significant extent upon the histories provided to the doctors.  This was especially so here, where the relevant motor vehicle accident occurred more than fifteen years ago.  Many of the doctors examined Mr Mateos in recent times only.  Others had seen him many years ago and not recently.

56      Mr Mateos was, in my opinion, an unreliable witness and historian in many respects.

57      By way of example:

·        In his first affidavit, Mr Mateos professed to have a vivid and detailed memory of the subject collision of June 2000, yet, surprisingly, he had little recollection of the October accident which was significant and which would have been frightening, and which was accompanied by plans of collusion with his former partner concerning who was driving at the time, and involved an acknowledged threat of injury or even death regarding his young son.

·        Likewise, his oral evidence initially was that he did not recall the 1999 accident at all, notwithstanding a considerable range of claimed injuries.[14]  His evidence was that he only remembered accidents that he “made”, presumably meaning that accidents that were not his making he did not recall.  Later in his evidence, he did recall an accident about a year before the subject collision in Anderson Street, Sunshine and was able to describe that the other driver passed through a ‘give way’ sign and collided with his vehicle.

[14]Transcript (“T”) 35; T107

·        Notwithstanding the history recorded by Mr Rush and the history taken by The Alfred hospital staff on 11 July 2001, Mr Mateos denied that he had been involved in any third accident. I do not accept that that evidence was truthful.

·        Mr Mateos was reluctant to admit that he had been driving a car as part of the armed robbery he committed in August 2002.  Initially, he denied driving a car on the day of the armed robbery and only later admitted that he had driven a stolen car to the convenience store where the robbery had occurred, that he was attempting to drive the car away from the robbery scene but that it had stalled, thus preventing his escape.[15]

[15]T206-7

·        In February 2006, Mr Mateos told Dr Weissman that he had not used illicit drugs. This is, in my view, not consistent with the evidence of his injection of amphetamine in February 2006; with his oral evidence that he had used heroin in 2002;[16] with Mr Rush’s evidence that, in February 2006, he had observed bruising over veins in the cubital fossae of both elbows, suggestive of ongoing and recent use of intravenous drugs,[17] or with his history to Dr Epstein in October 2013 that, in September 2010, he had used cannabis and possibly methamphetamine (Ice).[18]

[16]T139-140

[17]DCB 46

[18]PCB 35

·        Mr Mateos stated in his first affidavit sworn (in October 2012) that he had learned the day after the subject collision that the driver of the other vehicle had died.[19] He has persisted with this history to numerous doctors who have examined him on occasions between early 2002 and late 2014.[20]  It is clear from the statement signed by Mr Mateos in 13 February 2001[21] that, by that date, he knew the other driver had not died in the accident and was still alive at that date.  It is difficult to understand why he persisted in stating that the other driver had died.  I conclude that he perceived that his case might, in some way, be stronger if such death had occurred.

[19]PCB 13

[20]The Alfred hospital, in July 2001 – Exhibit 4; Dr Ingram, in January 2002 at DCB 20; Dr Schrueder at PCB 88 and 94; Dr Weissman, in February 2006, at PCB 55-67; Dr Freyer, in November 2009, at PCB 68; Dr Akinbiyi, in November 2014, at PCB 73

[21]DCB 114

·        In his first affidavit, Mr Mateos stated that he had a vivid memory of the scene in the aftermath of the collision.  He described the other driver being a large man, the scene of “carnage” and the Jaws of Life being used to free the other driver, who had blood all over him.[22]  In contrast, in his statement made on 13 February 2001, he stated “I lost consciousness at the scene and as a result did not observe anything at the scene”.[23]  That statement was read to him in cross-examination.  He was asked whether he had a clear recollection.  He answered “Not clear but I – what I saw is what I said”.  When asked about his affidavit, he said that it had been made by a Mr Ingram (who I assume was his barrister at that time).  His further answers on pages 101 to 102 of the transcript were, in my opinion, far from clear as to what he observed at the accident scene, if anything of relevance.

·        In January 2002, Dr Ingram (psychiatrist), saw Mr Mateos at the request of the Transport Accident Commission.  He obtained a history that, at the time of the June 2000 accident, Mr Mateos had been living with his de facto and three children, and that the relationship was reasonably happy. He had become more irritable and anxious after the accident and had lost confidence and became less interested in doing things with the family and contributing around the house.  He said his de facto eventually got sick of this and this contributed to the separation in 2001. This history is quite inconsistent with Mr Mateos’ evidence that he had separated from his de facto partner in about 1996 and before leaving Sydney for Melbourne.[24]

[22]PCB 13

[23]DCB 114

[24]

58      These matters did not reflect well on his credit.

59      In summary, I did not find him to be a reliable witness.  I am of the view that when he perceived that particular matters were unhelpful to his case, he would deny they occurred or would claim to have no recollection of them.  In particular, I found his denial of the history taken at The Alfred hospital on 11 July 2001 was untruthful.

60      A number of medical reports were tendered in support of Mr Mateos’ application.  In addition, a psychiatrist, Dr Epstein, gave oral evidence and was cross-examined. 

61      Reports were tendered from treating practitioners – The Alfred hospital (Dr Elliott), Dr Schrueder, Dr Freyer (general practitioner), and Dr Akinbiyi.

62      In July 2001 (soon after Mr Mateos was admitted to The Alfred hospital after suffering what he referred to as a nervous breakdown), Dr Elliott reported that he was suffering from Post-Traumatic Stress Disorder and associated depression.  She was of the view that the illness related to the car accident in June 2000.  She made no mention of the first or third accidents and I infer that she did not know of them.  She appears to have had no contact with Mr Mateos since July 2001.

63      In March 2002, Dr Schrueder made a diagnosis of Post-Traumatic Stress Disorder and Major Depression.  At that time, his condition appeared to be improving and Dr Schrueder thought that he needed only a few more weeks to recover “almost completely”.  He said:

“Hopefully there are no psychiatric conditions which would lead to permanent impairment.”[25]

[25]PCB 92

64      Dr Schrueder saw Mr Mateos once in February 2002, again in April 2002 and last saw him on 12 June 2002.  In a report dated 15 October 2002, Dr Schrueder referred to Mr Mateos’ abuse of heroin, the problems he had with his “wife”, the problems he had with her new boyfriend, who had physically threatened him, and to his apparently erratic compliance with treatment.  He said:

“The marital separation and attendant problems have I think contributed to a delay in his recovery.  The use of heroin as well as his apparently erratic compliance with his treatment also worsened his condition.  He needed additional help to desensitise him to traffic of which he had become phobic.  …

The prospects for future treatment, and his prognosis are very guarded.  His erratic attendance for treatment and compliance with medication and his heroin abuse are poor indications of success in the future.”[26]

[26]PCB 98

65      Dr Schrueder saw Mr Mateos once more, on 27 November 2014, for medico-legal purposes in order to prepare a further report.  On this occasion, the history given by Mr Mateos was that following the subject accident, he was unconscious for six to seven hours and had been trapped in his car for six hours.  I note that this is not consistent with his affidavit or oral evidence.

66      In that later report, Dr Schrueder diagnosed Mr Mateos as having residual features of Major Depressive Disorder and Post-Traumatic Stress Disorder.  He had noted that Mr Mateos had not had a partner for over fourteen years (quite inconsistent with his oral evidence) and continued to have physical pain resulting from the subject accident, mostly at the level of 5 out of 10.  There was no other evidence of him suffering from any physical pain except possibly at the time of the accident itself.

67      Dr Schrueder opined that Mr Mateos was currently severely impaired and unable to work or to maintain interpersonal relationships.  He considered that “the motor vehicle accident of 2000” was a major trigger to his psychiatric illness.  Specifically he noted:

“The idea in Mr Mateos’ mind that a person died played a role in the production of these conditions.  Whether there was an actual death or not is less important than this ‘idea’ that there was a death.”[27]

[27]PCB 103

68      Dr Schrueder did not have any history of the first or third motor vehicle accidents and obviously had an inaccurate history concerning his relationship with his former partner, Ms Duncan, and his long-term current partner, Ms Gatt.  He had not seen Mr Mateos for treatment since June 2002.

69      Dr Freyer (general practitioner) saw Mr Mateos on occasions between November 2009 and October 2012.  He noted that Mr Mateos had stated to him that he had become depressed and anxious after the subject accident in June 2000.  He recorded no history of other accidents, drug abuse or of any criminal offending or time in jail.  On the basis of the history given to him, he accepted that the accident had caused or contributed to anxiety and depression.  He referred Mr Mateos to Dr Akinbiyi in January 2012.

70      As best I can determine, Dr Akinbiyi saw Mr Mateos twice – in January 2012 and November 2014.  On the first occasion, Mr Mateos had told him that, in 2000, he had been involved in a head-on car accident and that this had affected him psychologically, emotionally and physically.  He had mentioned anxiety to him and said he had had panic attacks since September 2010.  He obtained a history concerning the ACA television show and how it had affected him and his children. He diagnosed him with a Mixed Anxiety-Depressive Disorder and queried anti-social personality traits.

71      In his later report, Dr Akinbiyi described the diagnosis as PTSD, Generalised Anxiety Disorder, and Major Depressive Disorder.  He thought the prognosis was poor due to chronicity of the anxiety, depression and PTSD illness, poor response to medication and poor social support. He believed the psychological condition was a result of the subject accident.  By then, he was aware of Mr Mateos’ jail sentence but not of any other car accidents.  He was told by Mr Mateos that the Department of Human Services had taken his children away whilst he was in jail.  Mr Mateos had denied the use of recreational drugs like speed or heroin.[28]  Dr Akinbiyi appears to be unaware of any relationship problems with either Ms Duncan or Ms Gatt, or any problems in seeing his children before and after the subject accident.

[28]PCB 71

72      In addition to those of treating doctors, I have read the reports tendered from doctors who have seen Mr Mateos on a medico-legal basis – Dr Ingram (referred to above), Dr Epstein, Dr Weissman and Dr Entwisle (all psychiatrists) in addition to Mr Rush and Dr Elder.

73      Dr Ingram saw Mr Mateos in January 2002 at the request of the Transport Accident Commission.  He obtained an incorrect history that, at the time of the June 2000 accident, Mr Mateos had been living with his de facto and three children and that the relationship was reasonably happy.  Dr Ingram opined that PTSD had caused behavioural problems leading to difficulties managing at work and also a deterioration in his relationship and eventual breakdown of it with loss of contact with his children.

74      Plainly, the history obtained by Dr Ingram was incorrect, in that the subject accident had nothing to do with the deterioration of his relationship or his loss of contact with his children.  They had separated in 1996.  The fact that his former partner had formed a new relationship with a man who had threatened him physically and made it difficult for him to see his children would no doubt have been distressing for him.

75      As Dr Entwisle pointed out, any psychiatric opinion depends upon the accuracy of the history provided.  In my view, this is especially so in the case of assessment of a person’s condition some fifteen years after the subject accident.

76      In February 2006, Dr Weissman described the history provided to him as “incomplete” and “poor”. He described Mr Mateos as being guarded and evasive on several key points.  He also referred to “significant forensic history” that occurred since the accident and to the lack of details provided to him.  He concluded that it was impossible for him to know Mr Mateos’ mental state at the time of the alleged events.[29]

[29]PCB 62

77      Dr Entwisle also found Mr Mateos to be an unsatisfactory and evasive historian.[30]

[30]DCB 61

78      In July 2014, Dr Entwisle noted that Mr Mateos’ description of his then current psycho-social stressors and difficulties contained little or no mention of the accident.  He opined that Mr Mateos’ symptoms were explained by factors which lay within himself and his personality and resultant ongoing psycho-social stressors.

79      I have noted the views of Dr Epstein.  He considers that the subject accident has had a profound effect upon Mr Mateos’ life and that, since then, he had developed high levels of depression and anxiety.  He diagnosed him with a Major Depressive Disorder and PTSD that had improved.[31] Dr Epstein appeared to have no knowledge of the October 2000 car accident.  He did obtain a history of the July 1999 accident but Mr Mateos told him he had no memory of it notwithstanding injuries to the neck, low back, right wrist, right ankle and cracked dentures.

[31]PCB 43

80      Looking at the evidence as a whole, I have concluded that I am unable to be satisfied as to what mental or behavioural disturbance or disorder Mr Mateos suffered as a consequence of the subject accident, or that any such disturbance or disorder was long-term or severe.

81      In particular, I find as follows:

·        Although the accident involved head-on contact, Mr Mateos’ physical injuries were minor. He was taken to hospital but discharged the following morning, apparently without further treatment.

·        He returned to his normal occupation within one week or, at the most, two weeks.  I do not accept that he was absent for about one month as he deposed in his first affidavit.

·        He remained in employment with GBM Logic for another year before he was made redundant.  In the early part of 2001, his problems at work revolved around the alteration to his shift and reduction in allowances paid as a consequence.  I do not accept that his redundancy was as a consequence of any reduction in the quality of his work resulting from the subject accident.

·        Within about four months of the subject accident, Mr Mateos was involved in another car accident in which the car in which he was travelling left the carriageway, struck a fence and possibly rolled.  Again, any physical injuries suffered by him appear to have been minor. Notwithstanding, I consider his statements to staff at The Alfred hospital on 11 July 2001 amount to an admission by him that he was the driver at the time, that he had been speeding, that he had colluded with his former partner to mislead police by advising them that she had been the driver, that his young son had been a passenger in that vehicle, and that he, at least by then, realised that his son could have been killed in that accident.

·        Mr Mateos consciously feigned a loss of memory of his role in the October 2000 accident.  I reject his evidence that, upon later purporting to recollect that accident, that he had observed it as a pedestrian and was not in the vehicle at all.

·        The nature of the October 2000 accident was such as to make that accident just as likely as the subject accident (or perhaps more so) to be a cause of any mental or behavioural disorder that occurred over the years that followed. 

·        In the period between 2001 and the present time, there have been a number forensically relevant events in Mr Mateos’ life.  These include:

§    the problems with his former partner and her new partner, and with obtaining access to his children;

§    the apparent involvement of the Department of Human Services in denying him access to his children;

§    his ongoing problems with his current friend (Ms Gatt), including her allegations of violence on his part, and her applications for intervention orders;

§    his use of heroin and other recreational drugs;

§    his involvement in an armed robbery and his conviction and incarceration in relation to it; and

§    his probable continued use of intravenously-administered drugs since his release from jail.

·        In addition, I find that the ACA television programs of 2006 and 2011 have led to very significant levels of stress, anxiety and depression.  In more recent times, his admissions to psychiatric wards appear to have been related to issues connected to what he perceived were false allegations made on those programs, his determination to obtain what he perceived as justice in relation to them, and his disappointments in failing to obtain what he considered was justice.

82      No evidence was presented in support of Mr Mateos’ claim from Ms Gatt, with whom he has lived for some years, or from his brother and his nephew, both of whom he also lived with.  No evidence was produced from any person with whom he was employed in the period between 1996 and 2002 to support his claim that there had been a deterioration in the quality of his work in that time or that he was made redundant because of his reduced performance in 2002.

83      In addition, no evidence was produced from his general practitioner in 2001, Dr Julia Sison.[32]  This is a significant time. 

[32]PCB 88; Exhibit 4, page 243

84      Mr Mateos’ case is, in short, that in the twelve months between the date of the subject accident in which he suffered very minor injuries, he had suffered a severe, long-term behavioural disturbance in the form of PTSD, depression and anxiety as a consequence of that accident.  In that context, I note the history given by Mr Mateos to The Alfred hospital staff in July 2001 that his general practitioner (who I infer was Dr Sison) had suggested that he may be entitled to WorkCover benefits as a consequence of his work-related stress.

85      Finally, there was no evidence from Mr Mateos’ current general practitioner, Dr Simon Rose, or the Inner South Community Mental Health, from where he apparently receives his current mental healthcare.

86      I am able to draw the inference that such persons, if they had given evidence, would not have advanced Mr Mateos’ claim.  I do not otherwise speculate as to what they might have said.

87      Mr Mateos bears the onus of establishing what injuries were suffered in the subject accident and the consequences of them.  In addition, he bears the onus of establishing that those consequences are “serious” in the sense described at the commencement of these reasons.  I am not satisfied he has discharged that onus.

88      I am not satisfied that Mr Mateos has established that any mental or behavioural disturbance or disorder suffered by him as a consequence of the subject accident was long term or severe.  I am not satisfied that any injury (physical or non-physical) suffered in the subject accident has made a material contribution to any such disturbance or disorder from which he currently suffers.  In particular, I find that it is likely that his current psycho-social stressors more likely relate to his perceived injustice at the hands of ACA, and his unsuccessful battles to achieve justice in relation to that, rather than to injuries suffered in the subject accident. 

89 Accordingly, I am not satisfied that Mr Mateos has suffered a “serious injury” as defined in the Act in or as a consequence of the subject accident.

90      I shall make the following Order:

·    The plaintiff’s application for leave to commence a proceeding to recover damages in respect of injuries sustained in a transport accident on or about 13 June 2000 is dismissed.

91      In relation to costs, I shall to order that:

·     The plaintiff pay the defendant’s costs of the application, such costs to be determined by the Costs Court in default of agreement.

92      Should either party seek alternative Orders regarding costs, they should contact my associate by 10.00am on Friday, 21 August 2015, whereupon I shall hear submissions on that date at a time to be notified to the parties.   

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