Naimyar v Transport Accident Commission
[2025] VCC 1354
•18 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-25-00589
| SAUHILA NAIMYAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 August 2025 | |
DATE OF JUDGMENT: | 18 September 2025 | |
CASE MAY BE CITED AS: | Naimyar v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1354 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric injury – spine injury – impairment consequences – reliability
Legislation Cited: Transport Accident Act 1986 (Vic), s93
Cases Cited:Popal v Transport Accident Commission [2023] VSCA 222
Judgment: Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards KC with Ms C Shambrook | Arnold Thomas & Becker |
| For the Defendant | Mr W R Middleton KC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Before the Court is a claim for “serious injury” arising out of a motor vehicle accident.
2As an observation, a relatively small number of “serious injury” applications come before the courts, but of those that do, many have characteristics involving the accuracy of evidence in affidavits, the reliability of witnesses, complex medical histories and the accuracy of what was said to medico-legal examiners.
3This proceeding has all those characteristics.
4Sauhila Naimyar (“the plaintiff”) is a now 43-year-old married mother of three children. She was born in Afghanistan and migrated to Australia when she was about 15 years of age, where she completed her education. Since leaving school, she has a history of retail work, including in a jewellery store.
5The plaintiff had the misfortune to be involved in two motor vehicle accidents within the space of a few months in early 2021. First, on 28 January 2021 she was involved in an accident when she collided with the rear of a vehicle in front of her (“the first accident”). Next, she was involved in a motor vehicle accident on 27 March 2021, when a car collided with the front left passenger side of her car, on the South Gippsland Highway (“the second accident”).
6In this proceeding, the plaintiff alleges that she suffered a “serious injury” because of the second accident.
7Specifically, because of the second accident, the plaintiff claimed to have suffered a “serious injury” within the meaning of either s93(17) of the Transport Accident Act 1986 (“the Act”), because of either:
· a “serious long-term impairment or loss of a body function”; or
· a “severe long-term mental or severe long-term behavioural disturbance or disorder”.
8About the claim based on a physical injury, the plaintiff relied upon injury to the spine, described as substantially the low back and being the aggravation or previously asymptomatic lumbar spondylosis.[1]
[1] Transcript (“T”) 11, Line (“L”) 8-20
9About the claim based on psychiatric injury, the plaintiff relied upon the development or aggravation of an underlying major depressive disorder as well as the development of post-traumatic stress disorder (“PTSD”). She contended that the PTSD was a ‘new’ condition.
10Broadly, the plaintiff claimed to have suffered pecuniary loss and pain and suffering consequences that either separately or collectively amounted to a “very considerable” consequence to her.
11On the other hand, the defendant contended that the plaintiff had a range of unrelated medical conditions, including significant pre-existing mental health issues, before the second accident, which were the cause of any ongoing impairment consequences. Alternatively, in the context of the defendant contending that the plaintiff was not a credible or reliable witness, it submitted that any impairment consequences flowing from any injury suffered in the second accident did not meet the “very considerable” test.
12The proceeding was conducted in the usual manner. The parties tendered documents from court books. The plaintiff presented for cross-examination. The parties made submissions. I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence and the parties’ submissions. I shall refer to that material to the extent necessary.
13Otherwise, the legal principles are well-known and mostly not in dispute. What is really in dispute in this proceeding is whether the plaintiff has put forward a sufficiently reliable body of evidence to discharge her onus to establish either a serious physical or psychiatric injury from the second accident.
14Finally, by way of introduction, while the plaintiff persisted with an application based on both a physical injury and psychiatric injury, she acknowledged that the emphasis of her application was on the alleged psychiatric injury she said she had suffered because of the second accident.
The plaintiff’s affidavit evidence
15In support of her application for “serious injury”, the plaintiff swore an affidavit on 10 October 2024[2] (“the first affidavit”).
[2]Plaintiff’s Court Book (“PCB”) 3
16In the first affidavit, the plaintiff said that because of the injuries and impairment she suffered in the accident, her capacity for work and enjoyment of life had been affected very considerably.
17Next, about her background, work history and medical history, in the first affidavit the plaintiff said:
“4. I was born in Afghanistan [in] September 1981 and am age 43 years. I am separated and live with my 18-year-old daughter and 4-year-old daughter. I moved to Australia with my family when I was a young child. I completed my schooling in Australia, to year 12. When I finished my schooling, I worked in retail, in various roles on a full-time basis. When I had my first daughter, I had 6 months maternity leave and returned to full time work. When I had my second daughter, I had 12 months maternity leave but returned early and worked part time because there were less hours due to the covid-19 pandemic.
5. I have had prior medical conditions including anxiety and depression stemming back to what I witnessed when my family were in Pakistan. I have had postnatal depression after the birth of my first children. I have had anxiety and depression in the context of the death of my mother. I have been prescribed Zoloft 50 mg for my anxiety and depression, on and off in the past.
6. I have had a prior neck injury in the course of my employment in about 2010. I attended Monash Emergency Department on 1 February 2010. I had a CT scan of my neck on 5 February 2010 that revealed a normal appearance. I experienced neck pain on and off over the years and have been prescribed pain medication including Mobic and Panamax. I do not recall but I understand that I was given a referral to Mr Brazenor in 2019 in relation to my neck pain.
7. In February 2018, I started exercise physiology for my right hip pain at Endeavour Hills Medical Centre. I was given a home exercise programme to do.
8. Following the birth of my second child I experienced headaches and vertigo. At times the vertigo was very debilitating and impact on my ability to sleep lying down. As a result, I slept in a seated position. My neck pain worsened. On 14 January 2021 I was prescribed Nurofen, Panadol Osteo, Aropax for my neck pain and anxiety and depression. In early 2021, I experienced right hip pain.”[3]
[3]PCB 4-5
18Next, the plaintiff described the first accident (on 28 January 2021), as follows:
“10. On 28 January 2021, I was in a transport accident when the car in front of me braked suddenly causing me to drive into the back of the car. I experienced immediate neck pain. I underwent an X-Ray of my cervical spine which did not reveal any issues with my neck. My GP recommended that I monitor the neck.
11. I was referred for psychology but struggled to find a psychologist. I was prescribed Zoloft 50mg.”[4]
[4]PCB 5
19Then about the second accident (on 27 March 2021), the plaintiff said:
“12. On 27 March 2021, I was involved in a second transport accident when another car was driving erratically and hit the side of my vehicle. The incident was very frightening for me because the driver of the other car exited his vehicle and was threatening me as I sat in my car. My two children were very upset by the incident also.
13. I experienced worsened neck pain and also low back pain and left hip pain after the second transport accident. I experienced worsened anxiety as a result of the accident. I was picked up by my sister and taken home. I hoped that the pain would improve but it got worse. I experienced severe left hip pain in the weeks afterwards. I attended my GP who referred me for scans and prescribed Panadol and Voltaren. Following this, to the best of my recollection, I also consulted a psychologist at Rowville Health.
14. In April 2021 the Zoloft was increased to 100mg, 4 times a day. I was struggling significantly with my mental health. I kept thinking about the accident and having nightmares. I was very scared of being outside of the home, and especially driving. I was referred to Dr Kishor, psychiatrist.
15. In May 2021, I was experiencing left arm altered sensation. I was struggling significantly with anxiety and depression. In mid 2021, my relationship with my husband ended. He was very unsupportive of my mental health issues. I experienced suicidal thoughts at the time.
16. I continued to experience difficulties with my neck pain. I started having physiotherapy at Endeavour Hills Physiotherapy. It was a very difficult time for me due to the neck and back pain and my mental health.
17. On 4 October 2021, I consulted with Dr Seneviratne, neurologist. I was experiencing ongoing neck and low back pain, and left arm and left leg altered sensation. I was also having migraine type headaches. I was very depressed as a result of the pain and also a trauma of the second transport accident. He did not recommend ongoing treatment and discharged me from his care.
18. In October 2021 I consulted with Dr Kishore, psychiatrist. I understand that he diagnosed me with major depressive disorder, post-traumatic stress disorder and comorbid chronic pain. He prescribed sertraline and duloxetine as well as mirtazapine. I trialled the ECT on 18 October 2021 and I was admitted to Pinelodge Clinic. I had 6 sessions in total but was unable to stay as long as was recommended due to having to care for my children. After the ECT my memory and concentration were severely affected. I have lost a lot of my memories after the ECT and in particular details relating to the birth of my second child.
19. I started seeing Dr Khattak, psychiatrist on 6 December 2021. I was in a bad place. I was not coping at home, having nightmares, and feeling very unwell. I recalled a history to Dr Khattak of witnessing traumatic incidents in Pakistan while my family was travelling to Australia. I also recalled an event where I witnessed a stabbing at Fountain Gate Shopping centre. I was replaying the events after the transport accident of March 2021. Dr Khattak commenced me on Venlafaxine and Prazosin. She discussed the prospect of TMS therapy.
20. I came close to attempting suicide by medication overdose on two occasions in early 2022. After that time, my medication was locked in a safe and my 16 year old daughter had to unlock the safe to give me my medication.
21. I continued to have physiotherapy, psychology and psychiatry in 2022. I completed a 2-day program at Southeastern Private Hospital. My medication was regularly changed to try and address the anxiety, depression and nightmares. I felt exhausted and in pain all the time but also struggled with my sleep at night due to the pain and nightmares.
22. In early 2023, the TAC stopped funding the psychology, psychiatry and physiotherapy treatment. It was a very difficult time for me. I was experiencing headaches that I believe were coming from my neck pain. I trialled Endep for the headaches, but it did not help.
23. In mid 2023, I experienced right hip pain that was affecting my sleep. My GP told me to take stronger pain medication.
24. In September 2023, I started seeing Dr Suzanne Herter, psychologist in relation to my anxiety and depression.
25. I understand that my physiotherapist has noted in November 2023 that I was in hospital due to overdosing on medication. I do not recall this incident.
26. Earlier this year my mental health worsened significantly again. I was finding my home and family life difficult with my pain and mental health issues. Dr Khattak called the CAT team. After that incident I asked my husband to come home to take care of the kids. He has since returned to the home, sleeping in a different room. We are trying to make the marriage work for the sake of the kids.
27. In April 2024 Dr Khattak prescribed me Olanzapine morning and night, Prazosin at night for my nightmares, Venlafaxine 300mg and Mirtazapine 45mg. She also arranged for a community mental health team to manage me during my pregnancy and attempt at reconciliation with my husband. She also recommended prenatal psychiatric care.
28. I currently see my GP every fortnight, the physiotherapist at Endeavour Hills Physiotherapy every fortnight, Suzanne Herter every 2-4 weeks depending on her availability. I am due to see a new psychiatrist in the coming weeks, Dr Chawla.
29. I currently take Diazepam, Melatonin, Olanzapine, Prazosin, Venlafaxine, Mirtazapine for my mental health. The medication makes me feel spaced out all the time. I feel numb most of the time. I experience forgetfulness and difficulty concentrating. I take Nurofen and Paracetamol 665 mg, at least 2 and up to 8 each, daily.”[5]
[5]PCB 5-9
20About her then symptoms, the plaintiff said:
“30. I suffer from constant neck and lower back pain. The neck is worse during the day, and the back is worse when sleeping. I experience left hand numbness at all times. The neck pain feels like a sharp stabbing pain and goes into both shoulders. I have a flare up of the neck pain every second day. When the flare up occurs, I take more pain medication and use a heat pack. I do the exercise that the physiotherapist has given me and try to change my position.
31. The flare ups in my back pain as less often, and generally occur when I have had a bad night's sleep. I experience headaches on a daily basis. Sometimes they are at the base of my head and other times they are on either side of my temple. Sometimes when I have the headaches, my vertigo occurs and affects my balance. This occurs about 3 times a week and cause me to be unable to move for a few hours. I take Stimatol tablets when the vertigo occurs and attend my GP for an injection, on average every few months.
32. My neck pain is worsened with looking right to left and up and down. It also worsens with activities that require me to reach above shoulder height and when picking items up of the floor.
33. My low back pain is worsened if I sit for too long and with vacuuming and heavier housework. I avoid lifting heavy items and taking heavier items up the stairs at home.
34. I suffer from constant depression and anxiety. Every day is a dark day for me. I struggle to feel happiness these days. I become emotional and teary every day. I feel lifeless since the transport accident and injuries. I have panic attacks a few times a week. I am scared to leave the house. I drive only short distances and am worried about an accident when I drive these days. I am very fearful about my safety and the safety of my daughters.
35. My sleep is interrupted on a nightly basis. I struggle to get comfortable enough to fall asleep because of the neck and the back. I wake up with nightmares most nights of the week. I wake up with neck pain a few times a week. I feel very tired on a daily basis. I nap during the day when I can.
36. Prior to my injuries I was very into wearing makeup. I took pride in my appearance. I did makeup for friends and family as a hobby. I never left the house without my makeup and nice clothing on. These days I have abandoned all of those self-care activities. There have been times when I have not showered or washed my hair for days. Some days I struggle to shower and get myself dressed. If I do my makeup, it is a struggle to be motivated. Sometimes my 18-year-old daughter does my makeup and even then, I feel no joy in it.
37. I have lost all of my friends since the accident. People do not understand me anymore. I do not feel like explaining myself to people. I no longer go on social media.
38. I am pregnant and due to give birth to my third child in November. I feel blessed that I am having another baby given the issues that I have had with my mental and physical health. I consult with a perinatal psychiatrist when I have my antenatal appointments.
39. The worst part about the injuries is the kids seeing the way that I am these days. My daughter has had to grow up a lot quicker than she should have, because of my injuries. She has had to be responsible for me, and the household. She uses her earnings from her part time job to pay for petrol and groceries and bills. As a result, her schooling and mental health have been affected.” [6]
[6]PCB 5-9
21Then about her ability to work before the second accident, the plaintiff said:
“40. I was very proud of my ability to work full time. I had previously managed the Salera’s fountain gate store. At the time of the accident, I was a second in charge at Atelier Jewellers fountain gate. I loved working and working in jewellery. I do not believe that I could work because of my mental health. If I could work now I would. I am struggling financially as a result of not being able to work.”[7]
[7]PCB 12
22The plaintiff swore a further affidavit on 25 July 2025.[8] Much of that affidavit simply updated the plaintiff’s life since her previous affidavit, including the fact that by then she had an eight-month old son. She described ongoing back and neck pain, restrictions for day-to-day activity and ongoing mental health issues.
[8] PCB 13
23About some of the day-to-day restrictions and treatment, in the further affidavit the plaintiff said:
“4. I refer to paragraph 28 of my first affidavit and say that I continue to see the GP every fortnight. I see a physiotherapist at Rowville Health but can only go when I receive funding approval from the TAC, which is provided to me in 4 session blocks. I have not seen the physiotherapist, Susan, for the last 7 months, because she will not see me until funding from the TAC is more consistent. I now see Dr Chawla on average once a month, because I need regular reviews due to changes in my medication. The delays in my treatment have made coping with my psychiatric injury very difficult.
5. I refer to paragraph 29 of my first affidavit and say that I currently take Diazepam, Melatonin, Olanzapine, Prazosin, Venlafaxine, Mirtazapine, Zopiclone. The medication makes me dizzy, fatigued, affects my concentration, bowels and gives me regular vertigo. I accept the side effects because I need something to help me with my psychiatric symptoms. I take Nurofen and worsened stomach ulcers from the medication.
6. I refer to paragraphs 30 and 31 of my first affidavit and further say that the back and neck pain are of the same severity.
7. I refer to paragraph 33 and 34 of my first affidavit and further say that my back and neck pain remained the same during my pregnancy. Following the birth of my son I struggled with worsened neck and back pain when lifting, holding, and carrying him. I was unable to care for him on my own and relied on other people to help me. I still avoid lifting, carrying, changing, and bathing him. It gets worse as he grows. I have dropped items when carrying them due to left hand numbness and I worry that I will drop him also
8. I refer to paragraph 34 of my first affidavit and say that it remains the same. I understand that I have been diagnosed with post-traumatic stress disorder and major depressive disorder. I continue to have suicidal thoughts. I struggle to care for myself in that I do not shower on a daily basis and rely on my sister to prompt me.
9. I am struggling significantly to care for my infant son. His care is shared between my 19-year-old daughter, my husband, and my sister. I assist only when I need. I was unable to breastfeed because of the medication. It affected me greatly psychologically and impacted on my ability to connect with him. It has also been very costly to buy formula. I grieve every day for the loss of connection with my son. I see my 19-year-old and feel immense guilt that she is taken away from her law studies to help care for her brother. I see my husband caring for the baby while working full time, and I again feel very guilty. I feel like a burden, and a bad mother and wife. My medication was increased to try and help me cope with how I have been feeling.
10. I refer to paragraph 35 of my first affidavit and say that I sleep in a separate room from my husband and my son. I do not wake up to care for the baby, because when I get up out of bed quickly, I experience vertigo. I am constantly exhausted. I tried to do a few nights, and the neck and back pain worsened, and I was in a bad way. My husband then agreed to take over waking up for him, and he shares a room with the baby. My injuries continue to affect my relationship with my husband. I feel disconnected with him. He acts like I am not a wife or a partner, but rather only the mother of his children. We do not have a physical relationship.
11. I refer to paragraph 30 of my first affidavit and say that I am receiving Centrelink family benefits and am reliant on my husband’s income. I do not believe that I would cope with work due to my physical injuries and also my psychiatric injuries.”[9]
[9]PCB 14-16
The plaintiff’s oral evidence
Evidence in chief
24At the commencement of the plaintiff’s oral evidence, she sought to correct three errors in her affidavits.
25First, she said that the reference in her first affidavit to 6 ECT sessions was wrong, and she only had one session.[10]
[10] T 24, L 17-18
26Second, about her work history, she said that the evidence in her first affidavit that she had been working at the time of the accident was wrong. She said she had left Atelier Jewellers on 6 December 2020. She said that she left because of the pandemic and they did not have many hours and so her employment was terminated.[11]
[11] T 24, L 19-31; T 25, L 1-2
27Third, about her second affidavit where she described how she still avoided lifting her baby son, she said that what she meant was that she tries to avoid lifting him but sometimes lifted him when she had to, and when carrying her son, she used a harness or a pram.[12]
[12] T 25, L 3-14
28With those three corrections, the plaintiff adopted her affidavits as true and correct.
Cross-examination
29The cross-examination commenced by probing the plaintiff about the second of her corrections, namely, the fact that she was not working at the time of either the first or second accidents. It was put to her that she knew what was said in paragraph 40 of her first affidavit was wrong and she agreed with that. She was then asked:
“Q:Yes. Yet less than a year ago, you swore it to be true and correct, because you gave instructions in accordance with paragraph 40, did you not?---
A:I suffer from memory loss after my ECT.”[13]
[13]T 26, L 6-9
30This was followed up as follows:
“Q:You positively stated, have you not, that you were working at the time of the collision, that’s the first collision, full-time and you're in second - second in charge. That’s what you said?---
A:That’s what I said on my affidavit. That’s correct. But at the same time, I did not know - because of my memory lost (sic), I wasn’t aware until this was brought to my attention that no, I was terminated. Then I accepted that I was terminated.
Q: When was it brought to your attention?---
A: Um when I read my affidavit when it was in writing.
Q: When?---
A: I don’t recall the date.
Q: Yesterday, the day before?---
A: No, no, no. No. Ah approximately a month ago or so.
Q: And who was with you when the correction was pointed out to you?---
A: Ah myself, when I read the affidavit, that’s when I corrected myself.
Q:So let me just grapple with what you’ve sworn as at 15 October 2024. You said you were working full-time at the time of the accident?---
A: That’s what I said on the affidavit.
Q: Yes. Which accident did you refer that to? The second or the first?---
A: The second.”[14]
[14]T 26, L 27 – T 27, L 16
31The plaintiff was then asked about her evidence that she did not believe she could now work and said that she cannot now work because of both her physical and psychological injuries.[15] She expanded upon that as follows:
“Yes, I do believe I had existing – pre-existing psychological and physical problems, but not to this extent. I was still working full-time until my second – until my first and second accident. After my first accident, when I got dismissed from work, I started looking for jobs straight away, and having that type of an experience, I knew that I was going to find a job straight away, but due to pandemics, I couldn’t find the job straight away, and then my second accident happened. After my second accident, my symptoms got worse and worse every day. That’s why I haven’t been back to work since my second accident. I have worked all my life since I’ve left school. I’ve never been without work. I’ve always been independent and wanted and loved to work.”[16]
[15]T 28, L 8
[16]T 28, L 23–T 29, L 6
32The plaintiff was then cross-examined about what she had said to doctors about her work capacity.
33I will come to the medical evidence in a moment, but broadly in cross-examination the plaintiff accepted that what was written in medico-legal reports was reflective of what she had said to each medico-legal examiner, including the provision of an inaccurate history to some medical examiners. The plaintiff said she could not recall why she had made some of those inaccurate comments but said that if they were in the notes, then she must have said it. She said, “I had a lot of hallucination after starting the high dosage of um psychological medication.”[17]
[17]T 34, L 6-12
34The plaintiff was then cross-examined about making some form of superannuation or income protection claim on her last employer. She accepted that she proceeded with an income protection claim. She was asked:
“Q:All right. Did you pursue an income protection claim for total disability?---
A: Yes, I did.
Q: And what was the basis of your total disability?---
A: What does that mean? I'm sorry.
Q:What was it? Physical? Was it mental? What was the basis of your ‑ ‑ ‑?---
A: Psychological.
Q:Yes. And it occurred because of your pre-existing, that is before the motor accidents, condition; is it not the case?---
A: Ah yes and no. I have pre-existing symptoms which got worsened after the second accident and that’s why the reports are after the second accident, not before the first accident.
Q: What reports are you referring to?---
A:I am referring to the reports that the solicitors um had from the psychiatrist, um I believe, and psychologist.
Q: Which set of solicitors?---
A: Monaco Solicitors.
Q:Well, they say in this letter, which is at 197, and we’ll provide Your Honour with it, ‘We advise that our client previously worked as a jewellery assistant and due to their condition, she has not been able to work since approximately 6 December 2020’. That’s what they say in this letter. What condition caused you to stop work on 6 December 2020?---
A:Depression and anxiety, because I lost my mum in pandemic, I had a severe pregnancy, and the lockdowns, which I was struggling financially and I lost my job at the same time.
Q: And these things you remember well?---
A:They’ve brought it to my attention over and over again, so yes, I have.”[18]
[18]T 35, L 17 – T 36, L 13
35The plaintiff was then asked whether before the second accident she had ever had any suicidal ideation and she said that she had, and that she had been admitted to hospital for suicide attempts.[19] She agreed that shortly before the first accident she had been referred to a psychologist. She was cross-examined about the related evidence from her treating practitioners, and she broadly accepted the notes as accurately recording what she had said, or what the doctors understood about her history and presenting complaints.
[19]T 36, L 14-17
36Next, the plaintiff was cross-examined about a Casey Hospital Emergency Department discharge summary dated 20 September 2011 following an attendance at hospital after an apparent overdose. The plaintiff accepted those records as accurate and that she had attended hospital because of a suicide attempt.[20]
[20]T 51, L 28
37The plaintiff was further cross-examined about problems that she had in her marriage, including a period of separation and periods of post-natal depression.
38The plaintiff was then asked about pre-accident medication as follows:
“Q:Prior to the first motor accident you were on a lot of medication; were you not?---
A:I wouldn’t call it a lot of medication. I was taking antidepressant tablets on and off. Not on regular basis, not on repeated prescriptions.
Q: What else?---
A: Paracetamol, on and off.
Q: What for?---
A: Ah migraine, neck pain, muscle pain as I gave birth.”[21]
[21]T 54, L 8-15
Video surveillance
39At this point in the cross-examination, the defendant played in Court and tendered covert video surveillance of the plaintiff obtained at various times on 18 and 19 June 2025. Before the video surveillance was tendered and played in Court, the plaintiff was asked a series of questions about it as follows:
“Q:Then over the page, at p42, down the bottom under ‘Progress’, second paragraph, ‘Slowly her mood improved slightly and when I reviewed her in June’ – and this is you first see this doctor on 26 September 2024 so it’s June of 2025. This is what’s recorded. ‘Mood was quite depressed, her daughter was helping with chores and she was having significant pain in the neck and back so she could not even go for a walk. Did you tell this doctor that?
A:Yes, I did, in June.
Q: And that’s not true; is it?---
A: Ah when I made that statement, yes, it was. I was in a lot of pain.
Q: Have you seen the video surveillance film?---
A: Yes, I have.
Q: And you know that it shows you on 18 June?---
A: That’s correct.
Q: Yes, and it shows you walking; doesn’t it?---
A: That is correct
Q: Around a lake?---
A: That is correct.
Q:And you also saw in the same time a report – sorry, a doctor at the request of your solicitors, a doctor, Clayton Thomas, who saw you on 16 June ‑ ‑ ‑?---
A:That’s correct.
Q: 2025 and reported at p143 on 17 June. Correct?---
A: That is correct.
Q:And you told him, amongst other things, that you spent most of your time either on the couch or in bed, correct?---
A:That is correct.
Q:That you had had no past history of any physical pain; tell him that?---
A:If it’s on the notes, yes, I have.
Q: And so far as walking was concerned you lost motivation?---
A: Yes, that’s correct.
Q:And 20 minute walk described like a feeling as if you're doing a marathon?---
A:That is correct.”[22]
[22]T 54, L 28 – T 55, L 25
40The video surveillance is notable for several reasons, one of which being that it was obtained approximately two days after the plaintiff attended a medico-legal examination with Dr Clayton Thomas. Second, it showed the plaintiff to walk, carry her baby, push a pram and drive a car without any apparent restriction.
41On 18 June 2025, the video surveillance commenced at approximately 11.08am. Around 12 noon, the plaintiff was seen with her adult daughter and her daughter’s boyfriend. The plaintiff was seen to lift her infant son and place him in a harness. She was seen to walk in a brisk manner carrying her son in the harness. While there were some gaps in the video surveillance, the inference from it was that the plaintiff walked for at least an hour carrying her son, without any restriction. There were then further periods of surveillance when the plaintiff was tending to her son, driving the car, pushing him in a pram and sitting in a cafeteria for an extended period. Later in the surveillance obtained on 18 June 2025, the plaintiff drove to her sister’s home and collected her daughter. The surveillance ceased at approximately 4.03pm.
42When cross-examined about that section of surveillance and the fact that there was no apparent restriction, the plaintiff said that any restriction depends on the day, “some days are worse, some days aren’t”.[23] When it was put to her that she had no difficulty lifting her baby, she said: “I had an Endone the night before. That was a special day for me”.[24] Later, she said she didn’t take Endone on 19 June 2025.[25] About the source of the Endone, the plaintiff said she believed she had Endone at Hospital “when I had my baby”.[26] About the “special day”, she explained that it was because her daughter arranged for her to “meet her boyfriend for the very first time”.[27]
[23]T 58, L 20-23
[24]T 59, L 11-12
[25] T 65, L 7
[26] T 60, L 25-26
[27] T 60, L 31 – T 61, L 1
43Pausing, the plaintiff’s explanation about the use and source of Endone was not convincing and was not referred to her in her affidavits, where she had been provided with the video surveillance in advance of the hearing. Her explanation for placing the baby in a harness and walking around a lake or park area because she was meeting her daughter’s boyfriend for the first time, lacked credibility. I pose the rhetorical question why a person who needed Endone for an outing because of a bad back, would decide to meet her daughter’s boyfriend in a scenario of a physical walk around a park? I consider that her explanation lacked credibility.
44It was put to the plaintiff that she had corrected her affidavit evidence only because she had seen the video. She said she had made the correction because she was wrong in that content and did not mean what she had said in the affidavit.[28]
[28]T 59, L 29-31
45The plaintiff was asked when she had seen the film of the video surveillance and said about two weeks ago.
46Next, the video surveillance of 19 June 2025 showed the plaintiff leave her home at approximately 9.18am, pushing her son in the pram and completing laps of a neighbouring park. She returned home at approximately 10.39am. Later on at 11.54am, she was observed driving her car.
47The plaintiff was then cross-examined about attendances on her treating psychiatrist, Dr Aparna Chawla. She described a phone attendance on Dr Chawla on 19 June 2025, after she had been walking with her baby in the pram that morning. She accepted that she told Dr Chawla that she had significant pain in the neck and back such that she could not even go for a walk. It was put to her that was plainly incorrect and she said:
“A:No. It’s not. I said I could not, but it’s not that I never tried. It – I am in pain when I go for a walk, but I don’t refuse to go for a walk because it’s part of my treatment.
Q:The doctor has recorded, ‘She could not even go for a walk’, which indicates that you’re telling the doctor that you couldn’t walk?---
A: That’s correct.
Q: But we just saw you walk from 9.18 to 10.38 around Banjo Paterson Reserve for two hours?---
A: That’s correct.
Q: I beg your pardon. An hour and 10?---
A: That’s correct.
Q: I put to you you’re exaggerating your physical symptoms?---
A: No. I’m not, sir.”[29]
[29]T 64, L 25 –T 65, L 5
48About her ability to walk, the plaintiff eventually said that she could walk for an hour but struggled. She said she pushed herself to get better and with strong painkillers could walk longer. She said, “I struggle to walk, but I can walk”.[30]
[30]T 66, L 1-7
49Having observed the video, it appeared to show the plaintiff able to engage in a range of normal and pleasurable activities without any obvious restriction or any obvious sign of pain. In fact, she appeared to demonstrate a reasonable aerobic and physical capacity, to carry her son in a harness whilst walking for about an hour on 18 June 2025. Because of my observations about the video surveillance, I informed the plaintiff that on my assessment she did not appear to struggle to walk in the video. She responded by saying the surveillance did not show pain and “if you have a look at my face expressions in the video, it – it – it shows that I am in pain”.[31]
[31]T 66, L 16-20
50Pausing, because of the plaintiff’s assertion that her facial expressions in the video were consistent with displaying signs of pain, I have watched the video again. For much of the video, the plaintiff is filmed walking away from the camera so her facial expressions cannot be seen. At other times, the video is taken from a position where it is difficult to make out any facial expressions. However, doing the best I can, on my observation, the plaintiff did not display any obvious facial expression suggesting that she was in pain. In fact, on several occasions she could be seen clearly talking, using a mobile phone and drinking coffee, without any obvious facial expression to suggest she was in pain.
Further cross-examination
51The cross-examination then continued and turned to issues around the plaintiff’s income protection claim and assistance with that claim by her treating general practitioner, Dr Formoso. The plaintiff was asked the following:
“Q:So this is a document signed by your doctor on 21 March 2022. That is about a year after the second accident. And then he says over on p167 that, ‘You’ve got PTSD 2021; anxiety, depression, from 2010, severe from 2019; postnatal depression 2007; cervical, spine, foraminal stenosis August 2021, with left brachial neuralgia.’ And then he’s asked this, ‘On what date did the patient first experience symptoms attributable to the condition?’ He says ‘2010’. Do you see that?---
A: Yes.
Q: Do you agree with that?---
A: Yes.
Q:‘On what date did the patient first unable to work due to their condition?’ He says ‘December 2020’. Do you agree with that?---
A:Yes.
Q:And then, ‘When did you first consult with the patient in relation to their condition?’ ‘4 August 09’. Do you agree with that?---
A:Yes.
Q:‘And what date was the condition first diagnosed?’ He says ‘2007’. Do you agree with that?---
A:Yes.
Q:Then this one. ‘On what date did the patient first become totally and permanently disabled causing them to become unfit for all work?’ And he records ‘December 2020’. Do you agree with that?---
A:Yes, I do.
Q: That’s contrary to your first affidavit, is it not?---
A: Ah no, it’s not.
Q:Yes, well, you corrected it. But originally you said you were working at the time of the second motor car accident?---
A:Like I said earlier, I was taking a lot of medication, and I – when I was – at the time of the affidavit, um I didn’t remember a lot of things.
Q:So it is incorrect what you’ve said in your first affidavit?---
A:It’s not correct, no.
Q:Thank you. ‘Why do you consider this to be the date upon which they became totally and permanently disabled?’ ‘Severe mood disorder, major depression and post-trauma stress, multiple complex symptoms, suicidal ideation, neck and left arm pains.’ Do you see that?---
A:Yes, I can see that.
Q: And you agree with that, don’t you?---
A: Yes, I do.
Q:‘Supportive counselling, Medazepam, Zoloft and lifestyle modification management, physical therapy, analgesia.’ And over the page at 169, he’s got at the bottom of the page, ‘Severe psych symptoms, chronicity and poor response to interventions and therapy.’ Do you agree with that?---
A:Yes, I do.”[32]
[32]T 68, L 8 – T 69, L 19
52Next, the plaintiff was asked whether she could recall ever being diagnosed as having a psychosis. She said that she could recall that but could not recall a date. She was then taken to a clinical entry of Dr Formoso of 20 June 2011 where a diagnosis of psychosis was mentioned. She said she accepted the note but could not recall why she had been psychotic.
53Next, the plaintiff was cross-examined about a document created by Dr Formoso on 18 January 2021; that is, two days before the first accident including four problems with anxiety and depression. The plaintiff accepted the accuracy of what was recorded in Dr Formoso’s certificate, which led to a question about the fact that she had told doctors she had no pre-existing mental issues. The plaintiff said “I’ve always told them that I had pre-existing issues. That’s why they’ve – I’ve always been prescribed medication.”[33]
[33]T 72, L 8-10
54The plaintiff was then asked to confirm a referral to a psychologist before the first accident, which she said was correct. It was then put to her that was because she was in trouble emotionally and she said that was correct.[34] It was put to her then that it was not because of a motor accident that she was put off work, it was because of her pre-existing mental state, and she said that was correct.[35]
[34]T 72, L 28-29
[35]T 73, L 4
55The plaintiff was cross-examined about treatment in the months leading up to the first accident and referrals for psychological assistance.
56Next, the plaintiff was cross-examined about her ongoing income protection payments. Then, finally, various entries in clinical records were put to her, in which broadly she accepted that the clinical record was an accurate note of what the doctor had recorded.
Summary of the plaintiff’s oral evidence
57There was no re-examination of the plaintiff and so I have set out the substance of the plaintiff’s oral evidence.
58As noted, the plaintiff’s oral evidence commenced with corrections to her affidavits. About the corrections to her work history and her capacity to care for her son, it became clear during the cross-examination that the corrections did not adequately correct the deficiencies in the affidavit.
59It became clear that the plaintiff had been certified by Dr Formoso before the first accident as incapacitated for work, because of a significant pre-existing psychiatric condition. That condition appears to have been florid and waxed and waned, but at times was serious enough for the plaintiff to be considered psychotic, admitted to hospital when suicidal and to be put off work by Dr Formoso on 6 December 2020.
60The plaintiff’s explanation that she had only recently realised the error in her first affidavit about her work history because of some cognitive deficits caused by ECT was unimpressive. The plaintiff presented as an intelligent and alert person in the witness box, with no obvious cognitive deficits. She appeared to have a good recall of events. I also note that to at least one medical practitioner in 2024 (which I will get to), the plaintiff had given a history of having ceased work in December 2020. It also defies belief that the plaintiff could have forgotten that she had been put off work by Dr Formoso in circumstances where she continues to receive income protection benefits.
61In short, the plaintiff was proven to be an unreliable witness about her pre-accident work situation.
62Further, the suggestion by the plaintiff in her affidavits and in histories given to doctors of significant restrictions for domestic activity or for a simple activity such as walking, in my view, is proven false by the video surveillance.
63I am conscious that video surveillance must be seen for both time and context. It is a relevant consideration whether the video surveillance has been provided to medical examiners for comment. But having said that, the plaintiff’s ability to engage in moderately physical activity without any obvious restriction stands in stark contrast to what she has said to the doctors.
64Indeed, for the claim based on a physical injury, the video surveillance is particularly damning for any claimed impairment consequences.
65Overall, I found the plaintiff to be an unimpressive and unreliable witness.
66The unreliability of the plaintiff, both about her work history, past psychiatric difficulties and current ability for physical activity, is a relevant consideration for not only the assessment of her evidence but also the assessment of the opinions from medical experts, particularly as the opinion of medico-legal experts is often only as good as the history provided.[36]
[36] Popal v Transport Accident Commission [2023] VSCA 222 at [60]
Ruhullah Naimyar
67In addition to her affidavits, the plaintiff relied on an affidavit from her husband, Ruhullah Naimyar, sworn on 30 July 2025.[37]
[37] PCB 18
68The plaintiff’s husband described a picture of how he had known the plaintiff for a long time, she had been doing well and had a full life, working, cooking and looking after the family. He compared that with her situation after the second accident and described her incapacity for looking after their baby son, and how their eldest daughter had to help around the house.
69I do not attach much weight to the affidavit evidence of the plaintiff’s husband. His evidence needs to be seen considering the conclusions I have made about the unreliability of the plaintiff. He also says nothing useful about her pre-accident psychiatric condition and the fact his wife had been put off work and onto income protection payments. Further, his description of impairment consequences is unreliable in consideration of the video surveillance.
70I also note evidence in Dr Formoso’s clinical records that casts doubt on Mr Naimyar’s evidence that they had a good marriage before the second accident. I also note that the plaintiff’s husband said nothing about how the first accident affected his wife.
Medical evidence
71In the context of the unreliability of the plaintiff and her husband, I now turn to consider the medical evidence.
The evidence from treaters
Dr John Formoso, general practitioner
72As mentioned, Dr John Formoso is the plaintiff’s treating general practitioner.
73The evidence from Dr Formoso included the clinical records from his clinic, which record that the plaintiff first attended on 11 June 2009. Much of the relevant clinical injuries were put to the plaintiff during her oral evidence and broadly have already been discussed.
74But relevantly, on 18 January 2021, Dr Formoso provided a Centrelink medical certificate describing the plaintiff as having low mood and severe anxiety. The treatment recommendation was counselling, and he certified the plaintiff unfit for work from 14 January 2021 to 14 April 2021.
75Next, on 3 February 2022, the plaintiff’s solicitors for her superannuation insurance benefit claim wrote to Dr Formoso seeking a report and noting that the plaintiff had previously worked as a jewellery assistant, and due to their condition, had not been able to work since approximately 6 December 2020.[38] In response to that letter, Dr Formoso wrote a letter to Medrex Pty Ltd on 1 February 2023.[39] Dr Formoso diagnosed post-natal depression, depression with anxiety and suicidal ideation, post-trauma stress disorder. He then said that other factors included severe pain related to cervical spine dysfunction related to the motor vehicle accident.
[38] Defendant’s Court Book (“DCB”) 197
[39]DCB 190
76The reference by Dr Formoso to “the motor vehicle accident” is vague and may be a reference to the first accident, in which the plaintiff claimed that her main injury had been to her neck, or it may be a reference to the second accident? It would have been a simple exercise for the plaintiff to seek clarification about which accident Dr Formoso was referring to.
77In any event, in the letter to Medrex, Dr Formoso said that the plaintiff was currently not fit to return to work even on a graduated basis.
78Next, Dr Formoso provided reports at the request of the plaintiff’s solicitors in this proceeding. The first of those reports is dated 14 February 2024.[40] Relevantly, Dr Formoso answered questions asked of him, but provided no useful evidence of the plaintiff’s medical treatment and incapacity before the first accident. He said:
[40]PCB 23
“1. Date of initial consultation with our client and date of your most recent consultation with our client.
Ms Naimyar was first seen with respect to the motor vehicle accident on the 20th January by Dr Richard Weston who consulted her on the day of the accident, Wednesday the 20th January 2021. She was seen by me approximately 1 week later, on Thursday 28th January 2021. With respect to the second accident on the 27th March 2021, she was first seen by me on the 7th April 2021. The most recent consultation was on Wednesday 31st January 2024.
2. Diagnosis and prognosis of our client’s injuries.
Major depressive disorder with severe anxiety and depression, post traumatic stress disorder related to the motor vehicle accidents, chronic pain syndrome involving the back and neck with symptoms in the upper limbs.
3. The results of specialist medical and diagnostic investigations such as x-rays, CT scans, EMG studies etc (Please enclosed (sic) copies of same)
See attached.
4. Whether our client’s injuries have stabilised or substantially stabilised.
I believe that Ms Naimyer’s [sic] condition has stabilised or substantially stabilised.”[41]
[41]PCB 23
79In that report, Dr Formoso went on to say that the plaintiff’s mental health and chronic pain symptoms had significantly affected her ability to perform normal occupation and her ability to carry out social, recreational and domestic activities.[42]
[42]PCB 35
80Dr Formoso reported again on 21 July 2025. In a relatively brief report, he essentially dealt with the plaintiff’s situation since the first accident as follows:
“1. Date of initial consultation with our client and date of most recent consultation with your client.
Ms Naimyar was first seen in relation to the motor vehicle accident on 20 January 2021 by another practitioner on the day of the accident (Wednesday, 20 January 2021). She was first seen by me on Thursday, 28 January 2021.
Regarding the second motor vehicle accident on 27 March 2021, I first consulted with Ms Naimyar on 7 April 2021. The most recent consultation was on Monday, 7 July 2025.
2. Diagnosis and prognosis of our client’s injuries.
Ms Naimyar has been diagnosed with the following:
·Major depressive disorder with severe anxiety and depressive symptoms
·Post-traumatic stress disorder related to the motor vehicle accidents
·Chronic pain syndrome involving the cervical and thoracic spine, with referred symptoms into the upper limbs
In view of the persistence and severity of her symptoms, the overall prognosis is guarded.
3. The results of specialist medical and diagnostic investigations such as x-rays, CT scans, EMG studies etc (Please enclosed (sic) copies of same)
Relevant specialist reports and diagnostic investigations – including imaging (X-rays, CT scans) and other medical documentation – are enclosed for your review.
4. Whether the injuries have stabilised or substantially stabilised.
I believe that Ms Naimyar’s condition has now stabilised or substantially stabilised.
5. If the condition is not stable, the estimated time until the condition is likely to be stable.
Not applicable.
6. Are the injuries likely to be permanent, if not, which injuries do you envisage will be of a permanent nature.
Given the chronic nature of her symptoms and functional impairments, I believe that her injuries are likely to be permanent.
7. Whether you would recommend further treatment or investigations. If so, what is the nature of further treatment or investigations that are required?
In my opinion, no further treatment or investigations are likely to provide significant additional benefit in her ongoing management.
8. Whether our client’s injuries have affected her ability to perform her normal occupation and her ability to carry out social, recreational and domestic activities.
Ms Naimyar’s mental health condition and chronic pain symptoms have significantly impacted her capacity to work in her usual occupation. She has also experienced substantial impairments in her ability to engage in social, recreational, and domestic activities. These symptoms affect most aspects of her daily life.
9. Whether our client’s injuries are consistent with the incident circumstances.
I believe that her current injuries and symptoms are consistent with the nature and circumstances of the reported motor vehicle accidents.[43]
[43]PCB 36-37
81Two things are clear from Dr Formoso’s report. First, he did not set out any relevant matters of history, including no mention the plaintiff’s previous incapacity for work. Second, Dr Formoso set out a history of the first and second accidents and then provided global opinions about his diagnosis and prognosis, without attributing impairment consequences to one or other of the accidents. Where the plaintiff has the overall onus to identify the claimed impairment and impairment consequences from the second accident, Dr Formoso’s evidence is of limited assistance.
Dr Aparna Chawla, consultant psychiatrist
82Dr Aparna Chawla is a consultant psychiatrist who has treated the plaintiff since 26 September 2024. Dr Chawla provided a detailed medical report to the plaintiff’s solicitors on 15 June 2025.[44]
[44]PCB 41
83Dr Chawla had a limited history of the plaintiff having post-natal depression after the birth of her first daughter, being on Zoloft for three months and recovering quickly and going back to work. He then took a history of the first accident and then three months later, the second accident. He described difficulties around the recent birth of her son because of medication and issues with her mood. He obtained a history of the plaintiff having pain in the neck and lower back.
84Dr Chawla then said the plaintiff had a diagnosis of PTSD and major depressive disorder.[45] He then made further treatment recommendations and said that the plaintiff’s depression and PTSD are consistent with the incident circumstances.[46]
[45]PCB 43
[46]PCB 45
85Pausing here, it is unclear what Dr Chawla meant by the incident circumstances. Perhaps that is a reference to the second accident, but that is unclear. In any event, Dr Chawla had an incomplete picture of the plaintiff’s mental health before either accident.
Dr Sadaf Khattak, psychiatrist
86Dr Sadaf Khattak is a psychiatrist to whom the plaintiff was referred by Dr Formoso. On 6 December 2021, Dr Khattak wrote to Dr Formoso setting out a history as follows:
“She presented today for the review and further management of her mental state. Saihila [sic] presented today that she has been under the care of Dr Kishore; however, she felt that she was not having any improvement in her mental state despite receiving multiple treatments. Saihila [sic] reported that prior to this year, she has been working full-time as a jewelry store manager; however, earlier in this year she had a car accident in January, as a result of which she sustained injuries and her airbags were deflated and she developed significant PTSD after her recent car accident. She describes that her symptoms of PTSD were severe earlier in the year but with the passage of time, they were decreasing in intensity but she describes that there are remnants of her PTSD in the form of ongoing flashbacks and her avoidance to go back and drive on South Gippsland Highway and she reports that when she is stressed, she becomes extremely hypervigilant and describes having panic-like symptoms but denies having discrete panic attacks.
She reports that she remains always on the edge and is becoming extremely forgetful. She reported that recently she is developing depressive symptoms; however, she also describes having a pre-existing postnatal depression after the birth of her second child in 2019. She reported that in the same year after the birth of her daughter, her mother passed away due to COVID-19 and describes that her mother died in her arms. After that, she had a motor vehicle accident. She reported that at home she is extremely distressed because her husband does not stay a lot at home because he is anti-mental health and he does not believe in mental illness, which makes it hard for Saihila [sic] because she becomes extremely critical of herself and pushes herself to get better despite knowing that it is not in her control.
Saihila [sic] reported having lowered mood with increased tearfulness. She describes having ongoing poor energy and concentration and states that she does not have motivation at all. She struggles to sleep at night with consistently having nightmares and feels that mostly in the nightmares she feels that she is being followed by someone.
She reported that those nightmares are extremely vivid and increasingly affect her mood. She tries to be connected to her 2-year-old child but because of her depression and ongoing PTSD, she sometimes struggles to maintain that connection with her daughter.”[47]
[47]PCB 46-47
87Dr Khattak obtained some relevant matters and past history and said:
“Saihila [sic] reported that after her initial car accident in January, she had another car accident in which her kids were also involved in March of this year; however, the children did not sustain any injuries.”[48]
[48]PCB 47
88Dr Khattak then provided a report dated 17 November 2023.[49] Relevantly, Dr Khattak reported:
“Sauhila, a 40 year old mother of two children aged 15 and 2, was initially consulted for a review and further management of her mental state on 6th December 2021. She lived independently with her husband at the time. During the assessment, Sauhila disclosed that she had previously been under the care of Dr Kishore but had felt no improvement in her mental state despite multiple treatments.
She recounted experiencing a car accident in January of the current year, resulting in injuries and significant post-traumatic stress disorder (PTSD) due to the deflation of her airbags. Initially the symptoms were severe, however later on PTSD symptoms gradually reduced in intensity. But the residual symptoms persisted, manifesting as ongoing flashbacks and avoidance behaviours related to driving on the South Gippsland Highway. Sauhila noted heightened hypervigilance during times of stress but denied discrete panic attacks, though she acknowledged experiencing panic-like symptoms.”
[49]PCB 51
89Dr Khattak is another example of a medical practitioner who does not have an adequate history. In addition, Dr Khattak does not delineate any injury, impairment, or impairment consequences, from the first accident, from those that may be related to the second accident. Indeed, the emphasis in Dr Khattak’s evidence is on consequences from the first accident.
Dr Brij Kishore, consultant psychiatrist
90Dr Brij Kishore is a consultant psychiatrist to whom the plaintiff was referred by Dr Formoso.
91Dr Kishore wrote to Dr Formoso by letter dated 14 April 2021.[50] Regarding the past history and the accidents, Dr Kishore obtained the following history:
“As you are aware, Sauhila is a 39-year-old female, married and lives with a 14-year-old daughter and 14-month-old another daughter and her husband. She is currently not working. She reported she was on maternity leave and after returning from maternity leave, she lost her job in December 2020 as sales assistant in a jewelry shop. She also reported that in 2017, her father died after a stroke. She had an unplanned pregnancy and delivered baby in 2019, through caesarean section. And when her new born baby was 15 days old, her mother died as well who had dementia. In 2019, she reported she suffered postnatal depression.
And in January 2021, she was involved in a car accident, when she sustained neck injury. Another accident happened on 27 March 2021, which was particularly traumatic for her as her children were in the car. During the second accident, another car while taking an exit swiped on a car which caused her a lot of trauma.
After that accident she has reported experiencing recurrent nightmares and flashbacks. She has been worrying about her children's safety, and gets very anxious when he hears the car horns. It has also affected her mood as well with significant depressive symptoms in terms of feeling low in mood, anhedonia, poor sleep, poor appetite and has not been socialising like before. She reported occasional suicidal thoughts and at one point, she thought of taking an overdose of Endone but changed her mind because of her kids. She reported that she struggling to do the day-to-day things but tried to push herself. She denied any psychotic symptoms or manic symptoms.”[51]
[50]PCB 73
[51]PCB 73
92Dr Kishore reached a provisional diagnosis of major depressive disorder and PTSD, and set out a treatment plan.
93Dr Kishore then wrote a “To Whomsoever It May Concern” letter dated 25 May 2021,[52] as follows:
“This is to certify that Sauhila is a 39-year-old female, who has been following up with me since 7 April 2021, here at SJOG Pinelodge Clinic.
She has reported history consistent with a diagnosis of Major Depressive Disorder and Post-Traumatic Stress Disorder. She was involved two car accidents in January and March 2021. During the second accident she had her two children in the car which was particularly traumatic for her. She has been started on anti-depressant Sertraline 100 mg which was recently increased to 200 mg/day.
There is some improvement in her depressive and anxiety symptoms but not fully recovered. She needs regular follow up with me and also to see a psychologist for CBT cognitive behaviour therapy) for her recovery.”
[52]PCB 76
94Dr Kishore wrote again to Dr Formoso on 10 November 2021, setting out the treatment to that point, and suggesting ongoing treatment. Dr Kishore said the plaintiff had been diagnosed with major depressive disorder, PTSD with comorbid chronic pain.
95Dr Kishore is another example of a practitioner who seemingly was given an inaccurate work history. Dr Kishore also to some extent blends the first accident and second accident, although admittedly with some inference that the second accident was particularly traumatic.
Susan Haertel, psychologist
96Ms Susan Haertel is a psychologist who treated the plaintiff and provided a report to the plaintiff’s solicitors dated 23 October 2023.[53]
[53]PCB 87
97Ms Haertel obtained an incomplete past psychiatric history of the plaintiff reporting post-natal depression after her first daughter in 2006, and depression in 2019 after the death of her mother. She said the plaintiff met the diagnosis of PTSD, generalised anxiety disorder, major depression, and psychotic disorder with some hallucinations.
98Ms Haertel then noted the plaintiff’s treatment, before setting out the history as follows:
“Ms Naimyar had reported to me on her first session on 29.6.23 that she had two auto accidents in 2021, the second one with her children in the car. She reported the other driver who hit her got out of the car was verbally abusive and was bashing on her window to open up until the police intervened. She had worked in retail industry in a Jewellery shop in Fountain Gate shopping centre. She had to leave work due to physical and psychological injuries sustained post accidents. Ms Naimyar reported a back injury and hip pain from her first accident and neck and shoulder injuries from the second accident. Ms Naimyar has experienced high anxiety, PTSD symptoms since these accidents with somatic and psychological symptoms of excessive fatigue, nightmares, and reduced functionality.
Ms Naimyar reports limited family support with one sister and brother-in-law, as both parents are deceased, and she has no grandparents in Australia. Her husband Mr Ruhullah Naimyar left the marriage in 2022, saying he does not recognise or support mental illness, leaving her a single parent.”[54]
[54]PCB 88
99Ms Haertel then expressed opinions about the plaintiff’s prognosis, saying it was uncertain when her mental health would be stable enough to transition back to work or commence new employment. She said the plaintiff had not been able to perform any occupational duties since her last accident. Then overall she said:
“I believe that given all the circumstances that have occurred for Ms Naimyar over the past 3 years, with sustaining 2 accidents three months apart, together with losing her major supports through her mother and husband. I believe that her psychological injuries are consistent with the incident circumstances.”[55]
[55]PCB 89
100As should be evident, Ms Haertel obtained an incomplete history and then blended the two accidents together, and so her evidence is of limited assistance to how the plaintiff presented her case.
101Ms Haertel reported again to the plaintiff’s solicitors on 17 April 2025. That report set out ongoing treatment, including two counselling sessions in 2024 and one in 2025. It also suffers from the deficiencies of the earlier report. In any event, amongst other things, Ms Haertel obtained a history that the plaintiff reported being isolated at home, and barely functional, which is inconsistent with the video surveillance.
102Overall, Ms Haertel said:
“I believe that her PTSD symptoms are consistent with the traffic incident circumstances, that have been exacerbated with added stresses over the last four years. Ms Naimyar appears to be still suffering from her initial physical injuries.”[56]
[56]PCB 102
Cameron Chapman, physiotherapist
103Cameron Chapman is a physiotherapist at Endeavour Hills Physiotherapy who has treated the plaintiff and provided a report dated 15 October 2023.[57]
[57]PCB 106
104About the accidents, Mr Chapman obtained the following history:
“Mrs Naimyer [sic] was involved in a motor vehicle accident on the 20th of January 2021. Her vehicle was written off in the impact and she sustained injuries to both her lower back and neck.
She first presented to Endeavour Hills Physiotherapy on the 1st of March 2021 with complaints of cervical pain, bilateral paresthesia in hands, severe cervicogenic headache and mild pain in her lumbar spine.
She was involved in a second motor vehicle accident on the 27th of March 2021, where a speeding car side swiped Mrs Naimyer [sic]. The driver of the other vehicle proceeded to verbally abuse Mrs Naimyer [sic] resulting in police being called to scene. This accident resulted in left lower back pain with referred neuropathic pain down the left lower limb.”[58]
[58]PCB 106
105Mr Chapman then went on to diagnose the following conditions:
“Based on Mrs Naimyer’s [sic] clinical presentation she is suspected to have the following diagnoses;
-Cervical whiplash
-C5/6 disc protrusion with associated upper limb paresthesia
-Cervicogenic Dizziness
-Cervicogenic Headaches
-L4/5 lumbar disc protrusion with associated lower limb paresthesia
-Possible depression/anxiety/adjustment disorder (Clarify this with managing psychologist).”[59]
[59]PCB 107
106About the plaintiff’s ability to perform various daily activities, Mr Chapman said:
“At the time of her last assessment, Mrs Naimyer [sic] was suffering from functional incapacities stemming from both cervical and lumbar injuries. She was unable to stand more than 30 minutes, sit for more than 25 minutes, bend repetitively, reach above shoulder height, bend down to reach the floor and lift more than 2kg. Her sleeping ability was significantly impacted by her injuries which added to the severity of her symptoms. On top of this, frequent headaches and dizziness impacted her ability to concentrate and focus on tasks.
To my understanding, Mrs Naimyer [sic] was on maternity leave at the time of her accident. Prior to this she was working as a jeweler. Her job involved prolonged standing and bending when speaking with clients. She was not able to resume this work post her accidents. Mrs Naimyer [sic] also struggled to perform house hold duties and relied on her sister and eldest daughter to assist with cooking, cleaning and other physical household duties. Due to her pain and mental health status, she ceased most social and recreational activities.”[60]
[60]PCB 108
107Then, Mr Chapman was asked a question about the incident circumstances, and said:
“The initial accident on the 20th of January 2021 was described as a high-speed forward impact collision, resulting in her vehicle being considered a write off. It is reasonable that an accident in this manner would result in rapid loading to the cervical spine resulting in a whiplash injury and possibly causing a bulging disc.
The second accident on the 27th of March 2021 was described as a high-speed side impact. This mechanism of injury would result in lateral forces being subjected to the spine. This corresponds with the reported lateral lumber pain and associated referred pain into the lower limbs.
Mrs Naimyer [sic] had no reports of neck or lower back pain prior to the events which took place on the 20th of January and the 27th of March 2021. It is reasonable to believe that her injuries are a direct result of the incidents circumstances.”[61]
[61]PCB 109
108A couple of things are apparent from Mr Chapman’s report. First, his description of restriction for daily activity appears at odds with what was shown on the video surveillance. Second, he too blends the two accidents together, and so that impacts the weight to attach to his reports.
Ms Giang Vo, physiotherapist
109Giang Vo is another physiotherapist who treated the plaintiff, and provided a report dated 8 February 2024.[62] Ms Vo noted the plaintiff had five physiotherapy sessions up to 28 November 2023. As at the last treatment in 2023, Ms Vo said the plaintiff’s chronic cervicogenic symptoms were not yet stable. The physiotherapist went on to say that the plaintiff’s injury and whiplash symptoms are directly related to the MVA, and that prior to the MVA the plaintiff worked as a retail assistant at The Body Shop.
[62] PCB 112
110Once again, Ms Vo is a practitioner with an incomplete history, and in fact appeared only to be aware of one accident.
Plaintiff’s medico-legal reports
Dr Justin Lewis, psychiatrist
111The plaintiff tendered a report by Dr Justin Lewis, psychiatrist, which was prepared after a joint independent medical examination.
112In a report dated 4 June 2024, Dr Lewis was provided much of the medical evidence I have already set out. He then obtained a history of the first accident and the development of neck pain. He obtained a history that the plaintiff was on maternity leave at the time of that accident. He said the plaintiff acknowledged some pre-existing psychological difficulties.
113Dr Lewis then obtained a history of the second accident. He recorded the plaintiff’s description of that accident as “very frightening”, and that the plaintiff sustained a lower back injury from the second accident, together with an acute deterioration in her psychological health.[63]
[63]PCB 117
114Having then obtained a history of the plaintiff’s treatment and current symptoms, after conducting a mental state examination and considering various reports provided to him, Dr Lewis said the plaintiff presented with a chronic PTSD largely consequent to the second accident, together with the aggravation of a pre-existing chronic major depressive disorder. He noted the history was relevant for likely psychotic episodes.[64]
[64]PCB 126
115Dr Lewis said the plaintiff’s prognosis was guarded. About the diagnosis, he said:
“The transport accident on 20 January 2021 contributed to an aggravation of a pre-existing chronic depressive disorder.
The transport accident on 27 March 2021 contributed to an aggravation of a pre-existing major depressive disorder in addition to a new-onset post-traumatic stress disorder.”[65]
[65]PCB 129
116Dr Lewis went on to describe that the plaintiff’s quality of life had been significantly impacted and how she was then heavily reliant upon her sister for domestic duties and shopping, although, if that was accurate at that time, that no longer seems to be the case, based on the video surveillance.
117Dr Lewis obtained a reasonable pre-accident history, but like the other examiners appears to have proceeded on the basis that the plaintiff was in work before one or the other of the accidents. In addition, he has attempted to apportion the plaintiff’s psychological consequences from the first and second accidents, which I accept must be something of an artificial exercise. But overall, the weight to attach to his report is lessened in circumstances where the picture painted to him by the plaintiff was one of extreme isolation and restriction for day-to-day activity, which is inconsistent with the video surveillance.
Dr Hazem Akil, neurosurgeon
118Dr Hazem Akil is a neurosurgeon who examined the plaintiff and reported to her solicitors on 5 June 2024. He obtained a history of the two accidents as follows:
“Ms Neymar [sic] was involved in two road traffic accidents.
First accident, 20 January 2021: She was driving along Gippsland Highway when another car abruptly stopped right in front of her, and she did not have time to break and she ended up rear-ending the car. She told me that she possibly lost consciousness for a few seconds. Airbags were deployed in her car. At the time, she called her husband who came to the accident scene and drove her home.
She told me that at the time she was complaining of mild neck discomfort, but she went to see her general practitioner who recommended an x-ray. Two weeks later, the neck pain worsened and she found herself unable to sleep and she went to see her general practitioner who recommended analgesia and an enrolment in a community centre for pain management.
Second accident 27 March 2021: She was driving along South Gippsland Highway when a car swerved into her lane and collided with her car from the left side. She told me that she was driving with her two daughters and the driver of the other car was abusive and he started banging on the car and on the windows. She was feeling very scared. She told me that after this accident, she was experiencing flashbacks and nightmares after that and she was worried about being attacked in public.
She, however, also developed worsening of her pre-existing neck pain and also developed lower back pain with hand numbness affecting the left side. She noticed also that she was dropping objects off her hand.
She was referred to see a neurologist Dr Janaka Seneviratne who did a nerve conduction study and recommended a pain specialist review.
She told me that she saw a pain specialist and she was also referred to see psychiatrist. She did undergo an ECT treatment. She told me that during this time, she had two suicide attempts.”[66]
[66]PCB 136-137
119With respect to the plaintiff’s work history, Dr Akil recorded that the plaintiff was due to return from maternity leave at the time that the accident happened, but the plaintiff had been unable to return to employment.
120About the diagnosis, Dr Akil said:
“Setting aside the psychological impact of particularly the second accident on her, the neck and lower back pain are manifestations of aggravation of lumbar and cervical spondylosis and the accidents are the main causes. The first accident caused the aggravation of the cervical spondylosis that is worsened by the second accident. The second accident caused aggravation of lumbar spondylosis.”[67]
[67]PCB 138
121Dr Akil obtained a history that the plaintiff struggled with everyday activities and required assistance from her sister and her 18-year-old daughter. He went on to note limitations from the accidents to include prolonged sitting, standing, or walking, and overhead activities, as well as repetitive pushing and pulling and lifting of objects heavier than 2-5 kilograms.[68]
[68]PCB 140
122Dr Akil described the prognosis as poor.
123Yet again, Dr Akil is an example of a medico-legal examiner with an incomplete history and a likely unreliable description of symptoms, based on the video surveillance. In addition, he also blends the two accidents together.
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
124Dr Clayton Thomas is a consultant in rehabilitation and pain medicine who examined the plaintiff on 16 June 2025 and provided a report.[69]
[69]PCB 143
125Dr Thomas obtained a history of the first accident and the onset of severe neck pain. He then obtained a history of the second accident and the development of severe low back pain.[70]
[70]PCB 143
126Dr Thomas was provided with a history of ongoing symptoms including the plaintiff saying how a 20-minute walk felt like a marathon. He obtained a history that the plaintiff could not be left with her youngest son “because she cannot look after him”.[71]
[71]PCB 144
127Pausing here, the video surveillance is in stark contrast to what the plaintiff told Dr Thomas, and casts doubt on her reliability.
128Dr Thomas then answered specific questions as follows:
“1. Diagnosis of your client’s injuries as a result of the transport accident on 27 March 2021.
Your client was involved in two motor vehicle accidents. The first one on 20 January 2021 was frightening for her. Developed leg pain after that. She remained reasonably functional.
The more traumatic accident was on 27 March 2021. It was after this that she developed severe trauma symptoms which have remained intrusive for her with anxiety, depression, psychotic episodes and recurrent nightmares.
I note the pre-existing history of anxiety and depression as outlined in the documents from her treating doctor. At the time of the accident she was vulnerable. Acute pain with acute distress, second accident more so than the first accident has left her with a chronic pain syndrome which is diffuse and widespread.
The current presentation is a diffuse and widespread pain syndrome. She meets the criteria for fibromyalgia. In accordance to the diagnostic criteria for fibromyalgia from the American College of Rheumatology she has widespread pain. She would score 14/16 for pain diffuseness.
In the symptom severity scale for fibromyalgia she scores 3/3 for fatigue, 3/3 for waking up unrefreshed and 3/3 for cognitive symptoms.
She therefore meets the diagnosis of posttraumatic fibromyalgia. She does not have any hard abnormal neurological examination findings. Although the MRI does show some subtle abnormalities, there is no concordance between these and the examination findings. The electrophysiological studies were also normal. She therefore has posttraumatic fibromyalgia in the setting of significant emotional distress which remains highly intrusive for her.
2. The diagnosis of fibromyalgia should be considered an organic pain syndrome. Her normal pain defences have been overwhelmed. The underlying problem is one of central sensitisation. The normal sensory nerves which would relay soft touch and normal sensation have become sensitised so they are relaying pain. This accounts for the widespread nature of her pain symptoms.
3. My opinion as to whether the injury is consistent with the stated cause.
The injuries are consistent with the stated cause, vis a vis an emotionally traumatic motor vehicle accident.
4. Whether the diagnosis injury is a new condition or aggravation of pre-existing condition.
The development of pain only occurred subsequent to the first accident with neck pain and subsequent to the second accident with an aggravation of neck pain and new development of low back pain. It was only with time that her condition transformed to a fibromyalgic picture.”[72]
[72]PCB 145
129Dr Thomas then said that absent the second accident in particular, the plaintiff’s condition may not have evolved to its current state.[73]
[73]PCB 146
130I note Dr Thomas’s diagnosis of a diffuse and widespread pain syndrome (fibromyalgia) which he said was an organic condition. Dr Thomas appears to ascribe that condition to both accidents, although primarily the second. However, the problem with his opinion is that it is inevitably weakened by the quality of what he was told about the plaintiff’s restriction for day-to-day activity. At the risk of repetition, the video surveillance is objective evidence, and I prefer that evidence to the plaintiff’s subjective description of symptoms that she gave to Dr Thomas.
Dr Nardine Elzahaby, consultant psychiatrist
131Dr Nardine Elzahaby is a consultant psychiatrist to whom the plaintiff was referred. She provided a report to the plaintiff’s solicitors following an assessment on 5 June 2025.[74]
[74]PCB 148
132For that report, Dr Elzahaby was provided with much (if not all) of the evidence that was ultimately tendered.
133Dr Elzahaby obtained a history of the first and second accidents. She said the plaintiff sustained injuries to multiple parts of her body, including her neck, shoulders, lower back and left hip, because of the accidents. She said, “The two transport accidents have significantly impacted her, particularly the latter.”[75]
[75]PCB 152
134About the plaintiff’s current level of functioning, Dr Elzahaby obtained a history of significant impairment because of both accidents. She also obtained a history of significant ongoing psychological symptoms. Relevantly, she obtained a history that the plaintiff was then “currently unable to engage in activities such as walking, running and certain domestic duties”.[76]
[76]PCB 156
135Dr Elzahaby then summarised the plaintiff’s past psychiatric history, describing it as “complex”. She noted the plaintiff had what she described as a significant psychological burden but said that the plaintiff’s mental health deteriorated further in 2021 “following the two motor vehicle accidents”.[77]
[77]PCB 157
136Dr Elzahaby then said the plaintiff met the criteria for a diagnosis of PTSD “directly related to the January and March 2021 motor vehicle accidents”.[78]
[78]PCB 160
137Dr Elzahaby said further that following the 2021 accidents, the plaintiff developed a major depressive episode that represented a significant deterioration from her pre-accident functioning.[79]
[79]PCB 160
138Dr Elzahaby also noted a diagnosis of borderline personality disorder, that pre-dated the accidents.
139Dr Elzahaby then set out her review of the various reports and clinical records provided to her, before providing her opinion and formulation. Having done so, Dr Elzahaby then provided an opinion that the second accident represents a psychological trauma that fundamentally altered the plaintiff’s mental health trajectory and precipitated severe psychiatric injuries.[80]
[80]PCB 165
140In support of the opinion about the plaintiff’s mental health trajectory, Dr Elzahaby then set out what she understood to be the immediate psychological consequences from the second accident and the impact on the plaintiff. About occupational consequences, she noted that the plaintiff had maintained consistent employment in retail throughout her adult life,[81] although based on the objective evidence, that is a statement I do not accept.
[81]PCB 167
141Dr Elzahaby provided a lengthy report. Without wishing to be critical, there is considerable repetition in it. The level of repetition almost ascends to advocacy. In any event, Dr Elzahaby said that the plaintiff’s current major depressive disorder represented a substantial aggravation of her pre-existing condition, transforming from manageable episodic depression to a severe, treatment-resistant, chronic depressive state with suicidal ideation requiring ECT intervention. She said:
“The complete functional collapse across occupational, social, and familial domains represents a new level of disability that far exceeds any previous impairment.”[82]
[82]PCB 170
142Pausing here, I wonder whether Dr Elzahaby would revisit her opinion about “complete functional collapse” if she had the benefit of the video surveillance.
143Much of the balance of Dr Elzahaby’s report is dedicated to a description of profound restrictions as reported to her, including the plaintiff being currently unable to engage in walking, running, or other physical exercise due to the combination of her physical injuries and psychiatric symptoms.
144Dr Elzahaby provided a comprehensive report, but I do not accept her opinions. In my view she has relied on a false narrative both as to the plaintiff’s level of function before one or the other of the accidents, as well as her level of restriction after the second accident.
Defendant’s medical evidence
Dr Brij Kishore, consultant psychiatrist
145In addition to the evidence from Dr Kishore that was tendered by the plaintiff, the defendant tendered a report from Dr Kishore dated 16 September 2021, obtained by the plaintiff’s solicitors in her income protection claim.
146In that report, Dr Kishore diagnosed major depressive disorder, PTSD, and comorbid chronic pain.
147But more relevantly about the issues in this proceeding, Dr Kishore was asked whether he believed the plaintiff ceased work on 6 December 2020 because of her conditions. He said:
“As per history reported to me by Ms Naimyar, she did not recover from possible post-natal depression when she returned to work after the birth of her daughter. She found meeting workplace sales targets very difficult, and she was given notices by her employer. Subsequently she was terminated from her job after three warnings.
I am unable to comment on the severity of her depression back then as I did not review her in December 2020. However, based on Ms Naimyar’s report it appears she was still experiencing symptoms of depression which were moderate to severe in intensity. Her depressive symptoms seem to have contributed to her not being able to function as per her baseline abilities, in her work as a sales assistant in the jewellery shop.”[83]
[83]DCB 8-9
148The short point from this further evidence from Dr Kishore was to implicate the plaintiff’s pre-accident psychiatric condition as the cause of her ongoing incapacity for work.
Mr Peter Wilde, orthopaedic surgeon
149Mr Peter Wilde is an orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 2 July 2025.
150Mr Wilde obtained a history including that the plaintiff had not worked since January 2021, after a motor vehicle accident, but had worked full-time in a jewellery store business before then. He said that the plaintiff advised him that “the store is now closed; it was a family business, and she has no job to return to”.[84]
[84]DCB 19
151Mr Wilde obtained a history of back complaints before the first accident, described as episodes that were only brief. He then obtained a history of the first accident and of her vehicle being rear-ended from behind.
152Pausing here, the plaintiff accepted in her oral evidence that contrary to what Mr Wilde recorded, the first accident occurred when she rear-ended the vehicle in front of her.
153About the first accident, Mr Wilde obtained a history of the plaintiff recalling injury to her neck and back, more so the neck.
154Then Mr Wilde obtained a history of the second accident. He recorded the plaintiff describing increasing symptoms in her neck and low back, and psychological treatment.
155About the plaintiff’s current symptoms, he recorded the plaintiff telling him that she hardly drove because of neck symptoms and of being terrified about having another accident. He recorded the plaintiff saying that “If she does drive, it is on the local streets very slowly (which upsets other drivers); she never drives on the freeway.”[85]
[85]DCB 14
156Pausing here, true it is that the video surveillance did not show her driving on the freeway; but insofar as it did depict the plaintiff driving a car, she appeared to be driving in a normal manner, and not “very slowly”.
157About restrictions from the lumbar spine, Mr Wilde obtained a history of pain levels as 5 or 6 out of 10 on a good day, and 9 out of 10 on a bad day. He recorded the plaintiff saying she could walk for 15 minutes and sit for 30 minutes. He obtained a history of the plaintiff getting assistance from family with domestic activity and the like.
158In summary, Mr Wilde said:
“Sauhila Naimyar is a 43-year-old woman with pre-existing complaints of neck pain, back pain, migraines, insomnia, and psychiatric issues. Nevertheless, she told me that she was working full-time in jewelry retail leading up to her two motor vehicle accidents. It seems that during the first motor vehicle accident, she sustained injuries to her neck and back (the neck more than the back). The second accident, which occurred at a higher speed, was psychologically more traumatic, and she re-injured her lower back.
She has ongoing back and neck pain and reactive depression with suicidal ideation. She has not been able to return to work in retail jewelry.”[86]
[86]DCB 16
159Mr Wilde then said the plaintiff sustained the aggravation of pre-existing cervical spondylosis without radiculopathy, and aggravation of lumbar spondylosis without radiculopathy. He said, in his opinion, the two motor vehicle accidents had contributed to aggravation of the injuries described.[87]
[87]DCB 16
160Mr Wilde said that from a physical perspective, the prognosis for the injury should be good. Having considered the video surveillance, I accept that opinion. In that regard, he said that non-organic features had overtaken physical injuries. I also accept that opinion.
Dr Nigel Strauss, consultant psychiatrist
161Dr Nigel Strauss is a consultant psychiatrist who examined the plaintiff at the request of the defendant and provided a report dated 17 July 2025.[88]
[88]DCB 28
162Dr Strauss obtained a history of the first accident. He recorded the plaintiff telling him that at the time of that accident, COVID restrictions were in place and she was working part time in a jewellery store. He recorded how the plaintiff had a few days off work following that accident and then returned to work. He said the plaintiff said that at the time of the second accident, she still had neck pain but she was coping.
163Pausing, Dr Strauss also was given an incorrect history about the plaintiff’s work before the first accident.
164Dr Strauss then obtained a history of the second accident and how the plaintiff began to develop pain in the middle of her back after that accident but was unsure whether it aggravated her neck pain.
165Dr Strauss then obtained a history of the plaintiff’s ongoing psychiatric symptoms and general restrictions. He recorded the plaintiff spending a good deal of time in bed. He recorded the plaintiff saying she drove her five-year-old to school and to pick her up but otherwise, “drives rarely”. He recorded the plaintiff saying she did not do any shopping, did very little cooking, felt isolated and rarely went out.
166After obtaining a history about the plaintiff’s background and conducting a mental state examination, Dr Strauss said:
“Cases like this are difficult to comment upon because on the one hand I have medical information suggesting that this woman had significant past medical and psychiatric problems before her accidents that occurred in 2021, but on the other hand this woman denied any significant past history.”[89]
[89]DCB 34
167Dr Strauss then said:
“It was my impression however when all facts are considered in this case that at the time of her accidents in 2021, particularly her second accident, she was a very vulnerable woman with a long past psychiatric history in an unhappy marriage.
I note that the situation was complicated last year when she fell pregnant and I note that she has not been able to manage the care of her youngest child and she has become increasingly dependent upon her older two children, her husband and her sister.
This woman suffers from a major depression and a post traumatic stress disorder and I accept that her accidents particularly the second accident in 2021 are contributing to her problems. Obviously marital problems continue to trouble her as well. I note her past history.
I believe that the accident that occurred in March 2021 is much more significant than the accident that occurred in January 2021 in relation to contribution.
I accept that the accident in 2021 in March is significantly contributing to her post traumatic stress disorder and contributing to her major depression.
However this woman has suffered from significant anxiety and depression for many years manifesting in headaches and aches and pains.
I suspect that much of her pain now is due to emotional distress and therefore she has a somatic symptom disorder as well as a major depression and a post traumatic stress disorder.
Whether her early years including her childhood are contributing to her vulnerability is difficult for me to assess because of this woman’s lack of awareness of her early childhood and developmental period.
Be that as it may I believe that significant factors apart from her accidents are contributing to her current psychiatric problems.
In answer to your specific questions this woman is suffering from a major depression, a post traumatic stress disorder and a somatoform disorder partly as a result of the accident in March 2021 but other factors are significant and I would state that that accident actually exacerbated pre-existing psychiatric problems.”[90]
[90]DCB 34
168Overall, Dr Strauss said:
“In other words before the accident in March 2021 she had suffered from a post traumatic stress disorder and a major depression as well as a tendency to somatise emotional distress.
Therefore the accident in March 2021 aggravated her pre-existing problems to a significant extent.
She will always suffer from psychiatric problems related to the accident in March 2021 and in relation to that accident her prognosis must be guarded.
She has not worked since the second accident and therefore that accident is contributing to her total incapacity but other factors remain relevant.
Taken in isolation the accident in March 2021 does not only interfere with her ability to work to a significant extent but also affects her ability to engage in domestic and leisure activities as well as social activities.
Her pre-existing mental health issues are also significantly and adversely affecting her domestic and leisure activities currently.
I believe that currently fifty percent of her psychiatric problems are due to the accident in March 2021 and fifty percent of her problems are due to other factors as detailed.
At this stage her prognosis is not good and she will require ongoing treatment psychologically at the current frequency and she should continue to take psychotropic medication.”[91]
[91]DCB 35
169The plaintiff placed some reliance on Dr Strauss’s opinion in her closing submissions.
170Dr Strauss sensibly tried to grapple with the incomplete history presented to him, in the setting of other objective evidence that he had available. But even so, he was unable to obtain a correct history about the plaintiff’s incapacity for work before the first accident.
171I also conclude that the plaintiff exaggerated the true extent of any restrictions for day-to-day and domestic activity in her description to Dr Strauss.
172I am again left to speculate what Dr Strauss may have had to say about his assessment that currently 50 per cent of the plaintiff’s psychiatric problems are due to the second accident and the remaining 50 per cent are due to other factors, had he been provided with an acceptably accurate history.
173Overall, I do not accept that any impairment consequences from the second accident are at the level as understood by Dr Strauss, or are “very considerable”.
Analysis
174First, I accept that the plaintiff’s credit was impugned. He affidavit evidence and what she said to the doctors was false in two critical aspects.
175The plaintiff had been put off work for an unrelated psychiatric condition before either accident. I do not accept her explanation about why that had been omitted from her affidavits, where she is clearly aware that she receives ongoing income protection payments because of that earlier incapacity, and because of medical support provided by Dr Formoso.
176Further, the video surveillance proved that she had a better capacity for daily activity than what she had described to the doctors.
177Therefore, I do not accept her subjective complaints of impairment or impairment consequences. I do not accept her submission that while there may have been some variations in her histories to doctors[92] her credit was not impugned. In my view, she was shown to be a deliberately unreliable witness on several key issues.
[92] T 109, L 21-27
178Second, in the context of her credit being impugned, the fact is that most of the medical examiners were misled about her work before the accidents and as to her true level of incapacity after the accidents.
179Much of the medical evidence is of little assistance to the plaintiff’s claim for serious injury because, in addition to an inaccurate history, the doctors also blend any claimed impairment consequences from the first and second accidents, so that the evidence is of no assistance to identify any impairment consequences referrable to the second accident.
180For the reasons already expressed, I do not accept the plaintiff’s submission that any credit issues are overcome by the opinion from Dr Elzahaby, who she contended had, apart from the correct work history, all the relevant evidence, and the general thrust of the report was of a serious psychiatric effect to the plaintiff because of the second accident.[93] As mentioned, the description of almost catastrophic disablement for daily activity as given to Dr Elzahaby sits uncomfortably with what was shown by the video surveillance.
[93] T 121, L 23-28
181Fourth, the plaintiff’s incapacity for work before the first accident, cannot be brushed away as the plaintiff attempted to do as perhaps some temporary incapacity for work.
182In this regard, the plaintiff relied on reports from her long-term general practitioner, Dr Formoso, that did not properly deal with the incapacity for work before the accidents. I am not critical of Dr Formoso. He answered the specific questions that the plaintiff asked him, and those questions ignored the evidence in his clinical records and did not ask about relevant pre-accident matters.
183The fact is that in early December 2020 the plaintiff was psychiatrically unwell to the point that Dr Formoso put her off work. He then provided support for an income protection claim against her last employer, for which the plaintiff continues to receive payments. For the plaintiff to establish any pecuniary loss consequences from the second accident, she bore the onus to provide acceptably accurate evidence about her pre-accident impairment for work, which she simply failed to do.
184Fifth, overall, by reference to the video surveillance, the plaintiff can engage in a range of daily activity. Contrary to what she said in her affidavits and to doctors, she can drive, carry her son, walk for significant periods without restriction, interact with her children and family without any apparent restriction.
185In addition, I do not accept the evidence from her husband that she is as disabled for caring for their son, or for home duties, as he said in his affidavit.
186Sixth, where the plaintiff bears the overall evidentiary onus, she failed to discharge that onus. Apart from the lack of reliable evidence, much of the medical evidence combined the first and second accidents to arrive at cumulative impairment consequences from those accidents. Leaving to one side the issue of her reliability, regardless the plaintiff cannot combine impairment consequences from the two accidents to establish a “serious injury”.
187Therefore, I do not accept that the plaintiff has established a serious physical or a serious psychiatric injury because of the second accident.
188The proceeding is therefore dismissed, with consequential cost orders.
- - -
0