NIDAL HADDARA vTRANSPORT ACCIDENT COMMISSION
[2025] VCC 218
•13 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION SERIOUS INJURY LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-22-00050
| NIDAL HADDARA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PILLAY |
| WHEREHELD: | Melbourne |
| DATEOFHEARING: | 11 and 13 February 2025 |
| DATEOFJUDGMENT: | 13 March 2025 |
| CASEMAYBECITED AS: | Haddara v Transport Accident Commission |
| MEDIUMNEUTRALCITATION: | [2025] VCC 218 |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Accident compensation – transport accident – serious injury application – psychiatric injury – whether plaintiff suffered a severe long term mental disorder – whether impairment consequences sustained as a result of injury – occupational capacity – reliability of plaintiff
Legislation Cited: Transport Accident Act 1986
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Jones v Dunkel (1959) 101 CLR 298; Davidson v Transport Accident Commission [2015] VSCA 12; Rowe v Transport Accident Commission [2017] VSCA 377; Noori v Topaz [2018] VSCA 323
Judgment: Application denied
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| APPEARANCES: | Counsel | Solicitors |
Forthe Plaintiff | Mr A Ingram KC with Mr P Haddad | Karlos Law Group Pty Ltd |
FortheDefendant | Mr P Jens KC with Ms K Karadimas | Solicitor to the Transport Accident Commission |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HIS HONOUR:
1The parties agree that on 26 October 2015, Mr Nidal Haddara was involved in a transport accident. They disagree about nearly everything else in this case. As such, there is dispute as to the circumstances of the transport accident, whether any psychiatric injury was sustained, whether any impairment consequences flowed from such psychiatric injury and whether such impairment consequences could be considered severe in the setting of an application pursuant to s93 of the Transport Accident Act 1986 (“the Act”). In that application the plaintiff seeks a determination that he has sustained a serious injury pursuant to paragraph (c), having abandoned his paragraph (a) case on the day of trial. Each of those topics were informed by an overall attack on the reliability of the evidence presented by Mr Haddara. This attack began in relation to the factual recounting of the transport accident and extended to the histories taken by a variety of treating and expert medical practitioners who reported on his injury and its consequences. Implicitly it extended to finally attacking the veracity of the affidavit material as to Mr Haddara’s impairment consequences.
2For the reasons which follow, I have determined the transport accident occurred in the manner described by Mr Haddara in his affidavit. I have found he sustained psychiatric injury as a result of that transport accident, resulting in a post-traumatic stress disorder (“PTSD”) and a chronic adjustment disorder involving anxiety and depression. However, I have found the evidence does not extend to proving he has sustained a somatic symptom disorder caused by the transport accident. Overall, assessing his impairment consequences, while I have found they could be considered to be serious, they are not sufficient to meet the definition, as required by the Act, of constituting a severe long term mental or severe long term behavioural disturbance or disorder. For this reason, I have denied Mr Haddara’s claim.
Brief relevant chronology Background historical matters
3Mr Haddara was born in January 1977 in Lebanon. He was born with a
deformity of his right hand; he has only a thumb and a little finger.
4He left school at around the age of 12 in Grade six, with basic literacy skills in Arabic. He went to an Islamic school for about a year. Due to his family situation he began working almost immediately. He performed labouring and informal electrical work until about 1994, when he started work as a taxi driver. Shortly after, he and his brother bought a van which operated as a school bus and taxi.
5In about 2001, he met his wife, who is an Australian citizen. They married shortly after and in 2003 he arrived in Australia. He completed a short course in English and then began working doing odd labouring jobs. Mr Haddara has six children, born in May 2003, April 2007, July 2011, December 2013, November 2018, who sadly passed away due to a congenital heart condition about twenty-eight days later and October 2020.
6Returning to the chronology, Mr Haddara travelled to Lebanon in 2004 for about six months. When he returned to Australia in mid-2005, he obtained his taxi licence and drove taxis between November 2005 and July 2009. He deposed that such work was regular and constant, often requiring work over seven days. In July 2009, he returned to Lebanon for twelve months. He came back to Australia in 2010 and shortly thereafter obtained a licence as a heavy rigid truck driver. He started work with a skip-bin company called Bin Hire and worked there from sometime in 2010 until the end of 2011.
7In December 2011, he returned to Lebanon and spent eighteen months there, returning to Australia in September 2013.
8On his return to Australia, he went on Centrelink payments. This required him to submit job applications and to be joined with a job services provider. He was unsuccessful in obtaining work throughout 2013 and the beginning of 2014. In
April 2014, he returned to Lebanon for two months and on return to Australia in July 2014, he recommenced looking for work. In January 2015, he went to Lebanon for one to two months, as his father was sick with cancer. He returned to Australia in about March 2015 and recommenced looking for work.
9In October 2015, he deposed that he was contacted by his job services provider, who suggested he would be suitable for a position as a bus driver. As he was accredited as a taxi driver and had his heavy rigid licence, he was qualified for such position.1 It is to be noted he was never formally offered the position, nor went for a job interview, nor in fact knew who the job offer came from or whether it was suitable for him.
10The transport accident intervened on 26 October 2015 and this prospective job went no further.
The transport accident
11In his affidavit, he deposed as to the transport accident in the following terms:
“On or about 26 October 2015 at approximately 1:20 pm, I was driving along The Avenue at Spotswood, Victoria. I had my wife and two young children in the car. At that time, my wife was attending to our children, and she was leaning back giving food to one of the children. I was travelling at approximately 50 kph, just under. I recall there was a speed camera in the area, and I was careful not to speed above the legal limit.”2
He was then overtaken at speed, and in what he defined as a dangerous manner, by a Toyota Prado. He deposed to braking and swerving to the right where he mounted the island and the Prado driver continued driving to the next set of traffic lights ahead. Mr Haddara deposed that, when the Prado turned onto Melbourne Road and pulled up at the lights. He was in a vehicle with his wife about 5 metres away.3 Mr Haddara determined he would report the driver to police. He exited his vehicle, walked up to the back of the Prado, which was stationary at the lights and photographed the licence plate. He then walked to the front of the Prado, where
Plaintiff’s Further Amended Court Book (“PACB”) 18
PACB 20
PACB 21 at paragraph [46]
he photographed the licence plate, as well as taking some photographs of the driver. He then deposed in the following terms:
“When I was standing in front of the Prado, I admit I was angry, and I was shouting at him telling him that I was going to call the Police and that the Police were coming. … .”4
Then he stated:
“When I was standing in front of the Prado Driver’s vehicle, he drove suddenly striking me with the Bull-Bar and I tried to get out of the way but there no time; I recall the Bull-Bar hit my chest and right side of my body. The impact caused me to twist and fall whilst the Prado Driver continued driving forward. I recall being hit again whilst the car was driving forward. As a result, I fell heavily on the right side of my body onto the traffic island separating oncoming traffic. At this time, I was filled with adrenalin [sic] and did not feel too much pain. I did, however, feel pain to my right knee, my back and neck. I was in shock, and I was in fear that I was going to be run over, so I wanted to get up as quick as possible.”5
12It is only necessary to briefly sketch the following matters, though they occupied an enormous amount of time during cross-examination. After falling to the ground, Mr Haddara picked himself up, returned to his car and then began pursuing the Prado. He pursued the Prado onto the West Gate Bridge and eastbound into the city, during which time his wife attempted to call police. The Prado driver then exited the freeway and returned to it driving westbound from the city to Werribee. Mr Haddara continued the pursuit. His wife called the police again and was told to stop the pursuit and attend at the police station to report the matter. There is some dispute over what happened next, but Mr Haddara only exited the freeway at around Werribee and then drove back to the Footscray Police Station.
13That same afternoon, Mr Haddara went to see his treating practitioner, Dr Mohammed Al Kamil, at the Bluestone Family Medical Centre. He was noted to be anxious and upset.6 He was referred to the Williamstown Hospital Emergency Department,7 where he was then transferred to the Footscray Hospital and
PACB 22 at paragraph [48]
PACB 22 at paragraph [49]
PACB 173-175
PACB 279
admitted. He was noted to have some bruising about the right hip, but ultimately was discharged after four days with no diagnosis of injury.
14He saw Dr Al Kamil again on 4 November 2015 with what he described as nightmares, being anxious and not sleeping. He was considered for referral to a psychologist.8 On 20 November 2015, he made a police statement at Altona North Police Station.9 He was then called by police to go in to the Werribee Station, which he did so on 24 November 2015. When he attended that day, he was told the Prado driver had accused him of road rage and striking the Prado. He had an altercation with police, was arrested and placed in a small cell. He had a panic attack and an ambulance was called. He was not conveyed to hospital, but was released after four-and-a-half hours. On Mr Haddara’s evidence, he received an apology for his arrest.
15He reported these matters to Dr Al Kamil.10 He was diagnosed as having panic attacks and his treating doctor, under a general practitioner’s mental healthcare plan, referred him to a psychologist, Ms Soorah Albatat. Those sessions seem to have occurred from late 2015 to early 2016.
16At this time, he came under the care of a new treating doctor, Dr Malek Kallab, who diagnosed him with ongoing anxiety and depression. He continued his healthcare plan and had further sessions with Ms Albatat. Ms Albatat considered there were depressive and anxiety symptoms, that he was having panic attacks, occasional nightmares and had many symptoms of PTSD and potentially a pain disorder. Ms Albatat considered he was unfit to return to work.11 In 2017, Mr Haddara continued to see Ms Albatat and made an application for a disability support pension, which it appears was granted. In September 2017, as noted, he
PACB 177
PACB 25, PACB 43
PACB 28, PACB 177
left Australia and went to Lebanon, where he remained until mid-2018. It is unclear if there was any treatment during this period of 2018.
17In January 2019, Mr Haddara was examined by a joint medico-legal practitioner, Dr David Weissman, a psychiatrist. He confirmed there were no medications at the moment, and no treatment,12 but he commented that the recent death of their fifth child had contributed to his symptoms. He noted only occasional sleep disruption caused by the transport accident with the plaintiff having bad dreams about the accident one to two times per week. He did not have a history of the police station events.
18In mid-2019, Dr Al Kamil referred him onto Dr Safa Hamza.13 He was a pain physician. This was because of chronic back pain. He considered he needed a multidisciplinary pain management assessment. This was because of chronic pain and symptoms suggestive of central sensitisation. He considered that while there were anxiety symptoms, there was only a possibility of PTSD. He also wanted Mr Haddara to attend a psychiatrist and arranged such a referral. That psychiatrist was Dr Prem Chopra. However, no material from him is available. However, through Dr Hamza’s report, it can be seen that he considered there was a PTSD with intrusive thoughts and nightmares.14
19Mr Haddara returned to Lebanon briefly in 2019 before returning to Australia that same year. In February 2020, he continued to attend at the multidisciplinary pain management assessment. It was recommended he go onto antidepressants and be referred to the psychiatrist, Dr Samir Ibrahim. Dr Ibrahim diagnosed Mr Haddara with a chronic adjustment disorder and depression, and commenced him on Endep.15 He has continued to see Dr Ibrahim on and off since that time. He has had changes in his medication by both Dr Hamza and also Dr Ibrahim.
PACB 80
PACB 217
PACB 224
20His treating doctors, in 2021, considered he had significant right knee problems and referred him to an orthopaedic specialist, who recommended surgery for a meniscal tear.16 Dr Ibrahim continued to report to his treating doctor during the course of 2021 of ongoing anxiety, depression, insomnia and nightmares.17 In June 2021, he was involved in a minor motor vehicle accident which does not significantly feature in this case. He has continued to see Dr Ibrahim throughout 2022 and 2023 on a reasonably infrequent basis, perhaps once every two to three months. In 2023, he was diagnosed with chronic sleep apnoea, which was noted to be severe, by his treating doctor and given a CPAP18 machine.19
21He saw Mr Justin Lewis, a medico-legal psychiatrist, in November 2024, who diagnosed a chronic PTSD and considered Mr Haddara was totally incapacitated for work.
22He saw medico-legal practitioner, Mr Ash Moaveni, an orthopaedic specialist, in November 2024, who could not find an orthopaedic diagnosis for his ongoing injuries, which Mr Haddara alleges results in constant back and leg pain and requires him to use a walking cane. He diagnosed Mr Haddara with a chronic pain syndrome20 and considered he was totally unfit for work.
23In January 2025, he saw medico-legal practitioner, Associate Professor Peter Doherty. I will return to this consultation.
Issue 1
Were the circumstances of the transport accident as Mr Haddara described?
24For the reasons which follow, I have answered that question in the affirmative.
25By its notice of dispute, the TAC admits that a transport accident occurred on
26 October 2015. Counsel for the TAC, however, indicated that the circumstances
PACB 251
PACB 238
Continuous Positive Airway Pressure (‘CPAP’)
PACB 263
PACB 119
of the transport accident were in dispute.21 In contrast to Mr Haddara’s evidence, by reason of the evidence given in cross-examination, the TAC submitted that it could not be proved that Mr Haddara was standing in front of the Prado when it moved forward and is alleged to have struck him. Rather, the TAC contended that Mr Haddara was most probably at the side of the vehicle when it began moving.
26I would reject that submission. Primarily, this is because of the contemporaneous material. That material first comprises the emergency services call made by Mr Haddara’s wife within 10 minutes of the events.22 In that call she describes how Mr Haddara was struck and how he fell to the ground. This is contemporaneous evidence in her own voice, describing the incident largely in conformity with Mr Haddara’s version given in his affidavit. I consider this to be powerful evidence.
27Secondly, the affidavit [which exhibits her police statement] of Mrs Haddara deposes to the accident in similar terms. She was called for cross-examination on her view of the accident and what had occurred. She was firm in her evidence, and it conformed to the emergency services calls and the affidavit and police statement of Mr Haddara.
28Third, the treating doctor notes are in the following terms:
“Thank you for seeing Mr NidaI Haddara, age 38 yours, who was involved in a road rage incident (1.15pm) / MVA where another driver allegedly hit him in his tommy [sic] with the car bumper and also pushed him more than once to the ground injuired [sic] his right knee and right elbow, now sore back as well, had abrasion to his right knee and right hip area, for opinion and management. Left our clinic at 3.40pm.”23
This is reasonably contemporaneous evidence from an independent person who recorded Mr Haddara’s recounting of the incident almost immediately after it. A strike to the tummy region is also consistent with standing in front of the vehicle and not to the side.
Defendant’s Notice of Dispute dated 27 March 2024; Transcript (“T”) 80 Lines (“L”) 24-25
Exhibit P6
PACB 173
29Fourth, the hospital notes from the emergency department of the Williamstown Hospital are in the following terms:
“Other driver allegedly struck him twice with 4WD, first the bumper into Nidal’s abdomen, leaving him standing, then struck a second time with the doors of the vehicle, knocking him to the ground.”24
Once again this is broadly consistent with Mr Haddara’s version of events.
30Fifthly, the claim form filed with the TAC on 25 November 2015 records:
“Continued driving where car was stopped at red lights. Got out of the car to take a photo of the registration number and driver. As I stood in front of the vehicle, the driver started to take off, hitting me and knocking me to the ground.”25
31Sixthly, the police statement made by Mr Haddara on 20 November 2015 is in the following terms:
“Whilst I take the photos the lights turned green and the driver started moving forward. I was standing at the front of the vehicle on the driver’s side about half a metre from the car. The driver went forward reasonably fast. No way normal. A split second later he hit me. The car hit me in the stomach and made me twist around and hit the car again on the right side as he moved forward. I then fell down.”26
32That material, taken in approximately the month after the incident, all tells strongly in favour of Mr Haddara’s version of events. I accept it. There is therefore no need for any inference to be drawn as the plaintiff suggested in accordance with the principles in Ansett Australia Ltd v Taylor27 or Sepe v Club Italia Sporting Club Inc (Ruling).28 It is furthermore not necessary for me to rely on any Jones v Dunkel29 inference which arises from the failure of the TAC to call the driver of the Prado. If it were necessary I would draw such an inference, and I find that lends support to Mr Haddara’s version of events.
PACB 279
PACB 71
PACB 44, statement of Mr Haddara, 20 November 2015
[2006] VSCA 171
[2023] VSC 191
(1959) 101 CLR 298
33This is not to suggest that Mr Haddara’s evidence in respect of how the event occurred was not in some ways unreliable and inconsistent. I accept, for reasons which I will set out below, that Mr Haddara did give unreliable and inconsistent evidence in relation to the way that the incident occurred. Overall, however, the evidence points in favour of Mr Haddara’s version of events as deposed in his affidavit and in the police statement at least.
Issue 2
What injuries, if any, were caused by the transport accident?
34For the reasons which follow, I find that Mr Haddara has sustained a mild to moderate post-traumatic stress disorder and a chronic adjustment disorder featuring anxiety and depression. I do not consider that Mr Haddara has sustained a somatic symptom disorder.
35Dealing with each in turn. In this matter I consider the evidence of the treating practitioners to be the most useful. This is because they have treated Mr Haddara over a long period of time. In this case this is particularly relevant, given that Mr Haddara suffered an injury now almost 10 years ago. A singular appointment with a medico-legal practitioner over this decade is of limited use. This does not mean that I automatically disregard the medico-legal reporting; however, it means that the weight of such evidence is tempered by their limited assessment of Mr Haddara.
36The starting point is the circumstances of the accident: being struck front on by the Bull-Bar of the Prado. I accept that this is a confronting situation. The evidence supporting ongoing psychiatric injury begins with the fact that almost immediately after the transport accident Mr Haddara began complaining of anxiety, nightmares and not sleeping.30 The TAC submits that two events interrupt Mr Haddara’s treatment and displace the notion that his extant psychiatric injury flows directly
from the transport accident. Those incidents are the events at the Werribee Police Station on 24 November 2015 and also the death of his son in December 2018.
Ms Albatat
37I reject those arguments. My reasons for this begin with the evidence of the treating practitioners. The treating doctor, for example, had noted well before the confrontation at Werribee Police Station that Mr Haddara might need a referral to a psychologist.31 That referral was ultimately made on 1 December 2015, some five weeks after the transport accident and about a week after the incident at Werribee Police Station. There is no notation from Ms Albatat that the referral was only in relation to the police station incident. This can be seen in the note from Ms Albatat to the treating doctor. She wrote that the majority of the problems related to the road rage incident, and specifically noted that in addition Mr Haddara did have anxiety and confusion related to his interaction with police over his statement.32 Overall, Ms Albatat considered that there was a post-traumatic stress disorder involving flashbacks, avoidance behaviour, with significant sleep disorder, and an adjustment disorder. There was also some contemplation that he had a potential pain disorder. The TAC submitted that Ms Albatat’s opinion was compromised by her speculation that Mr Haddara had a past medical history of depression and anxiety – when Mr Haddara himself had denied such.33 However, I note that Ms Albatat firmly recorded that the majority of the symptoms that Mr Haddara presented with were related to the transport accident. So it is somewhat irrelevant if the past history was incorrect if Ms Albabtat was alive to the necessity to apportion attribution of the current symptoms between various causes. I accept this opinion from a treating practitioner who saw him in the immediate year after the incident. This opinion is also important as it appears to be the primary source of psychiatric treatment in the years between 2015 and him coming to see Dr Weissman, the medico-legal specialist, in January 2019.
PACB 177
PACB 207
Dr Hamza
38The next treating practitioner to have involvement with Mr Haddara in respect of his ongoing pain and psychiatric condition was Dr Hamza, who was the pain physician he saw in mid-2019. It is here that the unreliability of Mr Haddara’s recounting of his accident becomes important and is one of the reasons I consider Mr Haddara was an unreliable historian. Dr Hamza took a history from Mr Haddara in respect of the transport accident in 2019 in the following terms:
“Mr Haddara is a 42-year-old male who reported a motor vehicle accident on 25 October 2015. He reported no loss of consciousness. He was able to drive his car and follow the person who caused the accident, then his wife called the police who advised him to take the number plate and attend to the police station. He went to the police station and then went to his GP who referred him to Footscray Hospital, where he was kept for five days, investigated then sent home.”34
39In his second report of 2022 he recorded:
“He stated that the other driver then got out of the car and was angry with him. He then punched and kicked him. He stated that he was thrown to the ground and the other driver continued to kick him. He was assisted by members of the public and the police were contacted.”35
40With that history, Dr Hamza diagnosed Mr Haddara with an anxiety condition and possible PTSD symptoms. He then referred him on to a multi-disciplinary pain management assessment.
41Pausing there, it is obvious that this later history is vastly at odds with that which Mr Haddara deposed to and in his statement provided to police on 20 November 2015. Such a florid description is so far at odds from the versions that he had previously given some 3 and a half years previously that I consider it may well have had an impact on the conclusions that Dr Hamza ultimately drew as to the diagnosable condition. Those were PTSD-type symptoms, and clinical features indicative of high severity central sensitisation, severe levels of depression, anxiety and stress.36
42For this reason I place lesser weight on his ultimate conclusions as to diagnosis as I have done in respect of the other treating doctors who have seen him over a long period of time. In this regard I accept the TAC’s submission.
43The same can be said in respect of the pain management assessment conducted on 31 July 2019. That assessment begins with a history in the following terms:
“He reported his car had hit another car and as they pulled over, Mr Haddara took a photo of the other car’s number plate. He stated that the other driver then got out of the car and was angry with him. He then punched and kicked him. He stated that he was thrown to the ground and the other driver continued to kick him.”37
44In respect of the ultimate diagnosis, he was provisionally diagnosed with an adjustment disorder with mixed anxiety and depression and a post-traumatic stress disorder. Given his physical injuries, he was diagnosed with a persistent pain condition.38 I repeat my comments made in respect of the adoption of Dr Hamza’s ultimate opinion, and I further note that the pain management assessment was only over a brief period of time. As a result I place limited weight on the opinions expressed therein.
45I do not place any weight on the opinion said to be of Dr Chopra, the psychiatrist, who only reports peripherally through comments made by Dr Hamza39 in which it is recorded that he had diagnosed a PTSD.
Dr Ibrahim
46The most important practitioner I consider in this matter is Dr Ibrahim, a psychiatrist. This is because since about March 2020 he has been involved in the care of Mr Haddara. He initially diagnosed Mr Haddara with a chronic adjustment disorder involving depression. He placed Mr Haddara onto Endep. Though it must be said that his history is only in a very brief form of the transport accident on 25 October 2015 (the accident date was 26 October but I consider nothing turns on this) and in addition he has a history of mistreatment by some police officers.
Defendant’s Court Book (“DCB”) 52
DCB 58
Thereafter he continued to see Mr Haddara every few months. By mid-2020 Dr Ibrahim had changed his medication regime to Endep and Circadin.40 Into this, Dr Hamza added Amitriptyline in place of Endep in mid-2020.41
47Dr Ibrahim continued to consult with Mr Haddara, and by mid-2021 had noted Mr Haddara was off all medications but was notably helpless, despairing, had nightmares and chronic insomnia.42 He was once again prescribed to start Deptran and later Circadin was added.
48By late 2021 Dr Ibrahim considered his chronic adjustment disorder condition continued, and he queried whether there was the presence of a PTSD. He settled on that diagnosis by the start of 2021.43
49In his latest reporting of February 2025, Dr Ibrahim noted his firm diagnosis of PTSD with an adjustment disorder for which he was prescribing Amitriptyline and Deptran. He considered Mr Haddara had no capacity for work.44 As I have indicated, I prefer the evidence of Dr Ibrahim as the treating psychiatrist over many years. His opinion is that the transport accident was a causative factor to the extant psychiatric condition.45 The Court in Rowe v Transport Accident Commission46 made clear that it is the trial court’s role to identify the injury that occurred as a result of the transport accident and then to determine whether that injury is serious in the defined sense.
Dr Lewis
50Support for this diagnosis is found to some extent in the report of the medico-legal psychiatrist Mr Lewis.47 This is on the basis of the history involving the police
PACB 234
PACB 225
PACB 237, 238
PACB 241
PACB 287
PACB 286
[2017] VSCA 377 at [82]
PACB 99
station event and the history of the death of his young child. Neither of these matters disturbed Mr Lewis’ opinion.
Associate Professor Doherty
51Similarly, AP Doherty, medico-legal psychiatrist, in January 2025 diagnosed a post-traumatic disorder with an adjustment disorder.48 However, he did note that it was hard to make any reliable diagnosis, given the very poor history that he was able to get. He noted that it was concerning that the mental health care plan only arose after the police incident.
52Overall, while I accept that, I consider, having regard to the medical notes of the treating doctor, it was quite clearly the case that the psychological symptoms began presenting at around the time of the transport accident, in attendances both on the day and in the week after, and that it was a reasonable assumption for the doctor to wait a short period of time before writing a mental health care plan. It was in that period that the police station event occurred. However, the overall medical opinion and chronology set out above tends strongly to the view that the PTSD and chronic adjustment disorder are sheeted home to the transport accident on 26 October 2015.
Is the somatic symptom disorder caused by the transport accident?
53As to the presence of a somatic symptom disorder, I do not accept Mr Haddara’s submission that he has sustained such a condition as a result of the transport accident. This is because I accept the opinion of Dr Ibrahim. As I have noted, he is a long-term treating psychiatrist who does not diagnose such condition. Those practitioners who do, such as Dr Weissman,49 do so in circumspect terms. Dr Weissman, for example, saw Mr Haddara some six years ago. He wanted to re- examine Mr Haddara in 9−12 months’ time with up-to-date reports from all treating practitioners and other independent medical examination reports. This is
PACB 132
PACB 89
particularly important as he considered that the psychiatric prognosis was quite uncertain and guarded. He said that the psychiatric impairment evaluation was provisional and non-definitive. He was never given such materials and never asked to conduct a further assessment to finalise his opinion. I therefore do not accept that he diagnosed the plaintiff with a somatic symptom disorder.
54Next, Mr Haddara relied on Dr Lewis.50 While he firmly diagnosed a chronic post- traumatic stress disorder and an adjustment disorder with depressive symptoms, he stated: “Strong consideration should be given to a somatic symptom disorder...”51 His comments do not go so far as to express this as a definitive diagnosis.
55Next, Mr Haddara relied on AP Doherty.52 However, immediately after that diagnosis AP Doherty stated:
“There are significant difficulties in any reliable diagnosis in this case.”53
This was because of the inconsistencies and unreliabilities in the history that Mr Haddara provided to Professor Doherty and which conflicted with material he otherwise had to review. This relates to the initial complaint at the examination, where Professor Doherty noted:
“There were most unusual circumstances. The plaintiff was nearly impossible to interview, giving vague, confusing answers without detail. He gave no clear and detailed description of the transport accident.”54
56
To answer this uncertainty in part, Mr Haddara submitted orthopaedic medical opinion of both Mr O’Brien and Mr Moaveni. These were medico-legal assessments in which both orthopaedic specialists opined that there was no organic basis for the ongoing pain and functional limitation. Mr Haddara seemed to submit rhetorically: if there was no organic cause for the ongoing pain and limitation, then it must be accounted for by a psychiatric condition? I do not accept
PACB 98
PACB 98
PACB 132
PACB 133
PACB 127
this argument. It is for Mr Haddara to put and prove his case on the balance of probabilities. The evidence in support of Mr Haddara sustaining a somatic symptom disorder with predominant pain is not sufficient to discharge this burden. Further, that submission does not account for the opinion of Dr Ibrahim, the treating psychiatrist, who has not diagnosed that condition. His opinion is important not just because he is the treating specialist over many years but because he was specifically given AP Doherty’s and Dr Weissman’s report and asked to comment. Those reports had the diagnosis of somatic symptom disorder. However Dr Ibrahim did not adopt it. In these circumstances, I find that Mr Haddara has not suffered from a somatic symptom disorder with persisting pain.
57To the extent that any reliance was placed on Ms Albatat’s opinion from May 201855 that there is a pain disorder, I would not accept that opinion. It is from a psychologist some six years ago, and it is not specific as to whether the pain disorder is organically or psychiatrically based.
Issue 3
The reliability of the Plaintiff’s evidence
58Allied to this reasoning is a matter touched on earlier: that of the unreliability of the evidence of Mr Haddara. I have set out some of that inconsistency in respect of various histories given to doctors as to the circumstances of the transport accident. In addition to that were the inconsistencies given in evidence during cross examination. Overall I found that evidence confused and unreliable. For example, when asked about the position of his stationary car to the Prado, he stated it was at the point where The Avenue joined Melbourne Road. When it was pointed out this was more than five metres from where the Prado was stationary at the lights he suggested the lights shown in the photographs were closer at the time of the incident.56 He then admitted he may be confused about this.57 He also gave conflicting evidence about why the Prado drove on – saying it was to hit him and
PACB 212
PACB 21 at [46]; T41, L16
T52, L16
then also finally admitting that the traffic light turned to green so it could have been moving forward in response.58 On the point of whether he saw the lights his evidence was confused. At first he said he didn’t see the lights to then admitting he had seen the light.59 These matters in combination with the wildly different histories to various clinicians suggest a real unreliability in the evidence of Mr Haddara surrounding the occurrence of the transport accident. However, the unreliability in his evidence goes further. In relation to the Werribee Police Station events he attempted to paint a scene of police intimidation. He gave evidence of the police yelling at his wife. She however denied this.60
59He went on and described being placed in a small room, deprived of access to his wife with 4 police officers yelling at him. In that circumstance he had stated he felt like he was going to die. In cross examination he was asked if this was traumatic. He replied “In what way traumatic?”61 Given what he had just described it is clear this was traumatic. His answer could be said to be non-responsive or evasive. I accept that the language barrier and cultural difference may have resulted in some misunderstanding and so do not place great weight on this particular alleged non responsive answer. Similar matters arise in relation to the plaintiff’s evidence of being “scared” by reason of being locked in the police interrogation room.62
60Even allowing for matters of language I do record my finding that in the witness box I found Mr Haddara’s evidence difficult to follow. For example, in the attempts to explain how he could give such wildly different versions of the accident to doctors and yet still adopt his affidavit as true and correct.63 He attempted to explain this away by stating the interpreting was inadequate at various appointments. However, on most occasions there was a professional interpreter used – such as with Dr Weissman and AP Doherty. These responses indicate a
T56, L30
T58, L21
T150, L17
T98, L19
T94-95
T104, L6 - 14
real uncertainty in his evidence. I found him discursive and unreliable overall. Given these reasons I find his descriptions of pain, limitation and functional capacities to be unreliable and seriously to be questioned.
What are the impairment consequences sustained as a result of Mr Haddara’s psychiatric injury, being the chronic PTSD and adjustment disorder with depression and anxiety?
61The difficulty with assessing Mr Haddara’s case overall is that while all doctors have essentially declared him significantly impaired and totally and permanently incapacitated, this is on the basis of both his physical and psychiatric injuries.64 Furthermore, those psychiatric injuries have at times included the somatic symptom disorder. That condition is a psychiatric condition in which the mind perceives pain from an organically intact area of the body. In this way Mr Haddara seeks to explain why he has constant pain and physical limitation despite there being no physical cause appreciable on radiology or clinical examination.
62Mr Haddara here makes no claim under paragraph (a) for his physical injuries. As I have found only the PTSD and the adjustment disorder relate to the transport accident, it is necessary to ensure that only those consequences which are caused by those injuries are taken into account in the assessment of whether he has sustained a serious injury.65 I find that the evidence is not in a state to make such a finding. As an example in Dr Ibrahim’s assessment he took a history of intense pain effecting his sleep and nearly all functional activities. In that setting his comments (in which he does not find a somatic symptom disorder) as to Mr Haddara’s overall capacities encompass the effects of both physical and psychiatric causes. I will provide further reasons in support of this conclusion in my assessment of the individual categories of impairment consequences relied on by the plaintiff below.
For example Dr Ibrahim PCB 286 at Q7 and Q10
[2017] VSCA 377 at [82]
63In Noori v Topaz,66 the Court made clear that in claims made solely under paragraph (c) no question of “disentangling” physical symptoms of the psychiatric condition out from the assessment. That can be accepted. However, unlike that case where the plaintiff was found to be reliable and genuine as to his impairment consequences I have found unreliability in Mr Haddara’s evidence and non-related psychiatric injury contributing to his impairment consequences.
Loss of occupation and pecuniary disadvantage
What occupational capacity does Mr Haddara have? What financial loss has been sustained?
64Mr Haddara submits that but for the injury he would have taken up the position of a bus driver as communicated to him by his job services provider in October 2015. I do not accept that submission.
65Once again, the best guide in answer to these questions is Dr Ibrahim. He opines that “the possibility of him being engaged in gainful employment in the future looks very unlikely according to the clinical picture he has described and displayed”.67
66Given that diagnosis from the treating psychiatrist, I consider that Mr Haddara has lost the capacity to return to work. From his past history that would appear to be as a taxi driver or as a skip bin driver. It is uncertain what those occupations would entail. It is for the plaintiff to prove on the balance of probabilities the extent of the loss that he has sustained. The starting point for such an assessment must bear some (not necessarily complete) relationship to his exercisable occupational capacity. Most often the starting point is to look at what someone was earning and in what position prior to the transport accident, or to look at the earnings of jobs that they were capable of engaging in at the time immediately prior to the accident. Here there is no such evidence. There are no tax returns from taxi driving or from the period driving skip bin trucks. There are no job applications in the period from 2011 to October 2015. There are no wages of comparable employees or materials
Noori v Topaz [2018] VSCA 323
PACB 287 at Paragraph 10
from a work placement agency indicating what wages would be. To add to the uncertainty is the fact that Mr Haddara did not exercise his capacity in the four years prior to the accident either in Australia or in Lebanon. This is despite the fact that his brother continued to operate a transport business there with taxis and buses. Presumably he could have worked, but instead relied on his brother’s hospitality.
67In assessing the issue of whether he has sustained a loss of occupational opportunity or suffered from pecuniary disadvantage, Mr Haddara must satisfy the Court that the loss is more than just speculative.68 In Davidson v Transport Accident Commission69an 18 year old broke her left wrist in a transport accident in 2009. She had finished the year 11 VCAL stream of VCE in hospitality in 2007 but did not continue that in 2008. She did not obtain an apprenticeship or other employment in 2008. She then moved to Melbourne intending to find work but the accident intervened. She completed a certificate course after the accident and had intermittent work – partly because of her wrist injury and also for other reasons. In January 2013 she gave birth to a son and at the time of trial in 2014 she was not working. Her application, based in part on the loss of earnings and loss of occupation as a chef, was denied by the trial judge. The Court overturned the learned trial judge’s decision on the basis that the proper question that ought be posed was whether a consequence of the injury was the plaintiff now being deprived of the prospect of engaging in the career to which she once aspired. Where that prospect was speculative there was no relevant loss.70
68As to the prospective job Mr Haddara may have had with the bus company in 2015 there is real uncertainty surrounding this position. This is because the job was not ever offered to Mr Haddara. It was essentially the job agency indicating that it was an opportunity which Mr Haddara may be suitable for. Mr Haddara did not know the company, where it was located, the duties he would have to perform, or the
Davidson v Transport Accident Commission [2015] VSCA 12 at [30]
Ibid
Ibid [32]
hours he would have to work. This is important because it could not be said in this case that Mr Haddara has a strong work history. He had worked driving taxis between about late 2005 and some time in 2009. He had gone to Lebanon and returned after 12 months and worked in a position as a skip bin driver for about a year. This was for a short period of time before he had once again left to go to Lebanon for 18 months. It appears that he was willing to give up work in order to travel to Lebanon frequently. In that setting the conditions at the bus company might become very important as to whether he would take up the position or remain in it for any period of time. I am therefore not prepared to accept that because of the transport accident he has lost the capacity to be a bus driver.
69I have considered the issue of whether the loss of his occupation as a bus driver and taxi driver was speculative and for the reasons set out above consider that the loss of those occupations were no more than speculative. This is because of the
(i) limited work history prior to 2011, (ii) the sustained pattern of unemployment prior to the transport accident in 2015, (iii) the fact that he was unemployed in both Australia and Lebanon particularly where it could be expected he had the potential to work in the family business, (iv) the lack of any real job offers at the time of the transport accident and, (v) the general unreliability of his evidence such that I have difficulty accepting his evidence that he intended to take up a job if offered.
70For similar reasons I cannot make any finding as to what pecuniary loss, if any, he has sustained as a result of the transport accident. I find any claimed such loss to be no more than speculative.
What is his medication regime?
71His treatment consists of medication being antidepressants such as Amitriptyline and Deptran. He is also on sedative antipsychotics, Neulactil and benzodiazepines. While he sees psychologists and psychiatrists intermittently, he has done so for a considerable period of time. That speaks to the chronicity of his
problems and for a man in his late forties this is a significant period of time, and also a likely long term future of such treatment.71
What are his functional limitations?
72In terms of functional restrictions, Mr Haddara describes difficulty driving both as a result of neck pain and of regular flashbacks and intrusive thoughts in the car.72
73While Mr Haddara was not cross-examined at all about his functional limitations as set out in his affidavits, the vast majority of those relate to his physical injury claim or relate to a somatic symptom disorder. As his paragraph (a) case is not proceeded with it is difficult to isolate the functional limitations caused by the psychiatric condition. His lack of sleep for example is in part a result of nightmares but also his back and neck pain.73 Similarly, his intimate life with his wife has changed as a result of both his physical and psychiatric conditions.74
74Doing the best I can then, the psychiatric conditions that I have accepted have resulted in an incapacity to work which I accept may have resulted in some financial loss to him. What that is remains completely uncertain. I also accept that he needs ongoing treatment by a psychiatrist and medication in respect of his psychiatric condition. It is an extremely difficult assessment to make given that the way the case was prepared as both a paragraph (a) and paragraph (c) case, but then only the paragraph (c) case proceeded with. It is further complicated because not all of his psychiatric conditions I have found are related to the transport accident; specifically I have found his PTSD and anxiety and depression are related and I have found his somatic symptom disorder is not causally related. Once again, the medical material does not seek to separate out what functional limitations relate to what particular psychiatric diagnosis. Similarly, submissions from counsel were not addressed to this point other than to assert that all psychiatric conditions were related to the transport accident. On that basis, while
PACB 287
PACB 52
PACB 52
PACB 51
I have found there is some occupational incapacity arising by reason of the psychiatric condition caused by the transport accident and the need for ongoing treatment are impairment consequences, I do not consider that I can make any further findings as to impairment consequences flowing from the accepted injury.
75In summary then I will decline the Plaintiff’s application for the following reasons:
(a)The circumstances of the transport accident are as described by Mr Haddara in his affidavit : that he was standing in front of the Prado when it drove into him, striking him and forcing him to fall to the ground;
(b)Mr Haddara’s evidence was unreliable;
(c)No permanent physical serious injury was caused by the transport accident;
(d)Mr Haddara has sustained a psychiatric injury being a chronic post traumatic stress disorder and an adjustment disorder involving depression and anxiety as a result of the transport accident;
(e)Mr Haddara has not sustained a somatic symptom disorder with predominant pain as a result of the transport accident;
(f)It is almost impossible on the evidence to determine which impairment consequences relate to the chronic post traumatic stress disorder and adjustment disorder involving depression and anxiety which are caused as the transport accident: This is confused by the plethora of physical ailments which are on some materials ascribed an organic cause and on others ascribed to the somatic symptom disorder which I have found is not caused by the transport accident;
(g)Specifically I have found Mr Haddara’s claim of loss of occupation and pecuniary loss are speculative and do not count as impairment consequences caused by the transport accident;
(h)The identified chronic post traumatic stress disorder and adjustment disorder involving depression and anxiety as a result of the transport accident have resulted in impairment consequences which cannot be considered to result in a permanent severe mental or severe behavioural disturbance or disorder.
76For these reasons I decline Mr Haddara’s claim.
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