Rajput v TAC

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04281

Souraj Rajput	Plaintiff
v
Transport Accident Commission	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF JUDGMENT:	20 March 2024
CASE MAY BE CITED AS:	Rajput v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 304

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Motor vehicle accident – severe long term mental or severe long term behavioural disturbance or disorder – causation – omissions in expert opinions
Legislation Cited:      Transport Accident Act 1986
Cases Cited:Anthony Rowe v Transport Accident Commission [2017] VSCA 377; Humphries & Anor v Poljak [1992] 2 VR 129; Jose Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Robert Steven James Lexa v Transport Accident Commission [2019] VSCA 123; Skye Taylor v Transport Accident Commission [2022] VSCA 269; Transport Accident Commission v Maria Katanas [2017] HCA 32.
Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. McNab SC Mr S.G Smith	Slater & Gordon
For the Defendant	Mr A. Moulds KC Mr S. Pinkstone	Russell Kennedy

HIS HONOUR:

Introduction
1The plaintiff seeks leave to commence a proceeding at common law to recover damages for injuries he suffered in a transport accident on 3 May 2019. He makes his application pursuant to the provisions of the Transport Accident Act 1986 (“the Act”) relying on sub-paragraphs (a) and (c) of the definition of ‘serious injury’ contained in section 93(17) of the Act.
2At the commencement of proceedings Mr McNab of Senior Counsel, who with Mr Smith of junior counsel appeared for the plaintiff, said reliance would only be placed on sub-paragraph (c), that is, a severe long term mental or severe long term behavioural disturbance or disorder.
3The defendant was represented by Mr Moulds of King’s Counsel, together with Mr Pinkstone of junior counsel.
4The plaintiff by agreement appeared by video link from Iowa in the United States, where he has been living since May 2022.
5The plaintiff was in Australia when he suffered a transport accident. He had come to Australia in 2016. At time of the accident he was a student at Melbourne Polytechnic, studying Information Technology. He was also working part time as a cleaner in a factory.
6The plaintiff has been beset by a series of unfortunate events. He travelled to the USA whereupon he contracted Covid, and he missed a required deadline to further extend his student visa to remain in Australia. Although he said he had the services of an immigration agent, there is some doubt if the agent acted with dispatch to preserve the plaintiff’s immigration status. In any event, the plaintiff was stranded in the USA, and given the stringencies of the American social security system and a largely privatised health system, the plaintiff explained that he has been unable to obtain any medical care since travelling to the United States in May 2022; he lacks insurance or funds to obtain private care.
7There is a consensus of medical opinion that the plaintiff is suffering from a mental disturbance.
8The plaintiff relies on the opinion and reports of Dr Serry by way of his prognosis, and in support of the contention that his condition satisfies the requisite test under sub-paragraph (c) of the definition of a ‘serious injury’.
9Mr Moulds outlined that the Commission opposes the grant of a serious injury certificate. The Commission argued that the prospect of treatment is relevant to a determination of whether the consequences the plaintiff experiences are permanent, and whether in the medium term, treatment may be available in America to ameliorate his symptoms. Accordingly, the Commission argued that permanence is speculative.
10For the reasons that will follow, I do not accept the Commission’s submissions and I am satisfied that the plaintiff has proved his entitlement to the grant of a serious injury certificate.

Relevant Legal Principles – Serious Injury
11The meaning of ‘serious’ expressed in section 97(17) of the Act has been addressed in the following way in Humphries & Anor v Poljak:[1]
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[2]
[1] [1992] 2 VR 129 (‘Humphries’).
[2] Ibid 140.
12As explained in the extract from Humphries,[3] a determination of the seriousness of any pecuniary disadvantage the plaintiff has suffered as a result of a transport accident is to be assessed in combination with, and not separately from any pain and suffering consequences.
[3] Ibid.

The Documentary Evidence
13The plaintiff relied on the following evidence:
(a)   Three affidavits of the plaintiff dated 25 August 2020, 27 January 2023 and 1 September 2023;[4]
(b)   Report of Dr Kanishka Muruththettuwegama dated 21 September 2020;[5]
(c)   Report of Ms Celeste Whiteman dated 14 December 2020;[6]
(d)   Two reports of Dr Navid Hamedani dated 16 November 2020 and 10 March 2021;[7]
(e)   Three reports of Advance HealthCare dated 18 November 2020, 24 May 2021 and 23 November 2021;[8]
(f)    Two reports of Dr Kavitha Shankar dated 13 April 2021 and 9 August 2021;[9]
(g)   Five reports of Ms Emma Dumble dated 4 March 2021, 14 April 2021, 23 June 2021, 23 January 2022 and 19 October 2023;[10]
(h)   Two reports of Dr Kenneth Loh dated 5 July 2020 and 17 November 2022;[11]
(i)    Five reports of Dr Nathan Serry dated 22 June 2020, 9 August 2021, 24 January 2023, 15 June 2023 and 13 September 2023;[12] and
(j)    Tax summary.[13]
[4]Exhibit P1, Plaintiff Court book (“PCB”) 8-24.
[5]Exhibit P2, PCB 35.
[6]Exhibit P3, PCB 36-38.
[7]Exhibit P4, PCB 42-44.
[8]Exhibit P5, PCB 45-58.
[9]Exhibit P6, PCB 59-66.
[10]Exhibit P7, PCB 67-75.
[11]Exhibit P8, PCB 76-81.
[12]Exhibit P9, PCB 82-124.
[13]Exhibit P10, PCB 163.
14The defendant relied on the following evidence:
(a)   Report of Dr Joseph Slesenger dated 6 March 2023;[14]
(b)   Report of Dr Natalie Krapivensky dated 1 March 2023;[15]
(c)   Academic transcript from Melbourne Polytechnic;[16]
(d)   Driver’s licence search;[17]
(e)   Clinical records of Ms Emma Dumble;[18] and
(f)    Handwritten note of Dr Kavitha Shankar dated 8 June 2021.[19]
[14]Exhibit D1, Defendant Court book (“DCB”) 8-21.
[15]Exhibit D2, DCB 29-37.
[16]Exhibit D3, DCB 38-39.
[17]Exhibit D4, DCB 40-44.
[18]Exhibit D5, DCB 48-58.
[19]Exhibit D6.
15I have read and had regard to all of the lay and medical evidence relied on by the parties as well the affidavit evidence and the cross-examination and re-examination of the plaintiff, together with the final addresses of counsel. In the reasons that follow, I have referred to such of the medical evidence that has proved necessary to explain the decision I have reached.

The Plaintiff’s Affidavit Evidence
16The following narrative is derived from the plaintiff’s three affidavits, focussing however, on the claimed psychiatric injury that is the subject of this application.[20] The plaintiff of course deposed to the nature and consequences of the physical injuries he sustained in the accident, but I have put these to one side in assessing the claim under sub-paragraph (c) of the definition of serious injury.
[20]Exhibit P1, PCB 8-24.
17The plaintiff is 26 years old. He was born in the Punjab region of India and is the eldest of two siblings. He arrived in Australia in 2016 on a student visa. At the time of the accident, he was working part-time as a cleaner at a Mr Donut factory and was also studying a Bachelor of Information Technology at Melbourne Polytechnic.
Pre-Accident Family Issues
18In 2018 whilst the plaintiff was studying in Australia, he discovered that his father had a second family in India with whom he had decided to live. This revelation and its effects on the plaintiff emotionally, adversely impacted his studies during the 2018 academic year. However, he said that he returned to India for his sister’s wedding in early 2019, and whilst there, had discussions with his father, such that he gained a better perspective on the situation that had transpired.
19The plaintiff said that when he returned to Melbourne after the wedding, he was going very well with his study and work, and “threw himself into it” and was very positive.[21] He deposed that he had been in good physical and mental health at the time of the accident, and that he had not required treatment or medication for any psychological issues prior to the accident.
[21] Exhibit P1, PCB 21, paragraph 15.
The Transport Accident
20On 3 May 2019, the plaintiff was a pedestrian and was crossing the intersection of Springvale and Cheltenham Road, Keysborough when he was struck by a vehicle. He was taken by ambulance to Dandenong Hospital. Scans revealed that he had sustained a fractured left shoulder (proximal humerus) and soft tissue injury to the left leg. He was an inpatient for two days.
Treatment
21Following the accident, the plaintiff came under the care of his General Practitioner (“GP”) Dr Kenneth Loh.
22The plaintiff has received treatment from Mr Patrick Byrne, orthopaedic surgeon, as well as physiotherapy for the left upper limb injuries.
23Regarding his psychological injuries, in June 2019 Dr Loh referred the plaintiff to a psychologist after he had reported feeling stressed and anxious, and having difficulty sleeping, however, the plaintiff did not take up the referral at that time.
24Around late 2019, the plaintiff deposed that he continued feeling anxious, became withdrawn and was struggling to keep up with his studies. Dr Loh referred him to Dr Kanishka Muruththettuwegama, a psychiatrist at Pine Lodge Clinic.
25The plaintiff was treated by Dr Muruththettuwegama in 2020, who prescribed Lexapro and Mirtazapine. The plaintiff also received treatment from Celeste Whiteman, a psychologist at the Pine Lodge Clinic.
26In 2021, the plaintiff completed an eight week pain management program with Advance Healthcare. This involved physiotherapy, psychology and pain management treatment. The plaintiff’s treating psychologist at this time was Emma Dumble. When the pain management program finished, the plaintiff continued to receive treatment form Ms Dumble, until he travelled to the USA in May 2022. The plaintiff had also come under the care of psychiatrist Dr Kavitha Shankar in 2021, and who the plaintiff said, made changes to his medication regime.
Post-Accident Study and Employment
27The plaintiff deposed that “due to his symptoms” after the accident, he struggled with his IT studies, and failed his subjects for the 2020 academic year.
28The plaintiff said he was unable to return to the factory doing cleaning work, due to the left shoulder and arm injury he sustained in the accident. However, he was able to obtain lighter car detailing work which did not require heavy lifting and for which he mainly used his right arm and, in December 2020, he commenced working part-time as a car-detailer.
29The plaintiff deposed that in the 2021 academic year he passed only one of his three subjects. He took a break from his studies in 2022, but he continued to work part-time as a car-detailer until May 2022, when he departed Australia for America.
The Plaintiff’s Immigration Status and Move to America
30The plaintiff has lived in Iowa since May 2022. He deposed that he travelled to the United States to visit his aunt and uncle, contracted coronavirus and was delayed returning to Australia, and his Australian visa was cancelled. He initially lived with his aunt and uncle in Iowa.
31He deposed that he does not want to return to India, because he is embarrassed and ashamed of the person that he has become since the accident. He said that he has not told his family in India about the accident and the problems he has encountered since then, as it would put them through too much stress.
32The plaintiff cannot work in the USA and neither has he undertaken any study there.
33The plaintiff deposed that in late 2022 he met an American citizen, Lisa Smith, who is a single mother and a social worker. Initially their relationship was platonic but they made a “quick joint decision to get married” which occurred at a local courthouse on 28 August 2023.[22] His wife moved in with the plaintiff, his aunt and uncle.
[22]Exhibit P1, PCB 18, paragraph 2.
34The plaintiff has not received treatment since living in the USA. He is unable to access the American health system and any treatment is far too expensive for him as a non-citizen. He deposed that his condition has deteriorated and that it has been difficult for him to manage his mental problems without treatment, such that at times he has been suicidal.
Consequences
35The plaintiff deposed that before the accident, he enjoyed drinking on social occasions but now drinks more frequently with the specific aim of getting drunk. He uses drinking as a “form of release” and he says it helps with his pain and discomfort.[23] However, he said that his alcohol use decreased since arriving in the USA.
[23]Exhibit P1, PCB 9.
36The plaintiff said he used to enjoy dancing and, as he described it, “just letting go to the music.”[24] He says that he has struggled to dance since the accident, because he is not motivated to go out and his left shoulder pain gets too much to tolerate. He says that he has become more withdrawn and has lost friends. He feels fortunate that Lisa has come into his life. She tries to lift his mood; however, he still feels lonely and withdrawn.
[24]Exhibit P1, PCB 9.
37The plaintiff said that he used to be a calm person, but has become short tempered since the accident.
38The plaintiff said that since the accident his ability to remember and to concentrate is “very poor.”[25] He is absent minded and at times struggles to express himself, as he finds that he lacks the words to do so. He also described sometimes stuttering, which he was not afflicted with prior to the accident.
[25]Exhibit P1, PCB 19.
39The plaintiff deposed that he struggles to sleep and experiences bad nightmares most nights. He deposed to dreams that are very distressing. A recurring dream is that he commits suicide in front of his family. He also has dreams of the accident and dreams in which he said he can feel pain. He says that he does not enjoy a restful sleep and feels tried throughout the day.
40He deposed to suffering from flashbacks of the accident whilst he is awake. He says that he is hyper-alert when he is on roads and struggles with loud noises. At times, he suffers from panic attacks where his heart races and he shakes and sweats. He said that he is hesitant to cross the road at pedestrian crossings, and traverses quickly across the road for fear of being hit by a car again.
41The plaintiff deposed that suicidal thoughts can occur at random times, but usually when going through difficult periods. He said that he has not been able to stop these thoughts.
42The plaintiff said he was scheduled to have completed his study by 2020, but felt he could not cope with academia after the accident, as he was anxious, absent minded and lacked concentration, and he feels that his opportunity for a better life has been taken away because of the accident.
43The plaintiff deposed that he struggles to derive enjoyment out of life. He doesn’t want to go out and participate in activities such as camping and hiking, which he said he used to enjoy before the accident.

Plaintiff Medicals
Dr Loh
44Dr Loh was the plaintiff’s treating GP and the plaintiff relied on two reports from Dr Loh dated 5 July 2020 and 17 November 2022.[26]
[26]        Exhibit P8, PCB 76-81.
45Much of Dr Loh’s reporting focused on the physical injuries the plaintiff sustained in the accident. He noted in regard to the claimed psychiatric injuries that the plaintiff had received treatment from a psychologist and psychiatrist and had been prescribed Lexapro 10 mg daily and in his second report, he recommended that treatment continue.
Dr Kanishka Muruththettuwegama
46The plaintiff relied on a letter sent to Dr Loh dated 21 September 2020[27] from his treating psychiatrist Dr Muruththettuwegama, who wrote that he had consulted with the plaintiff who was experiencing depressive symptoms following the accident, but there was no suicidal ideation or other risky thought. He prescribed the plaintiff Lexapro 20 mg and Mirtazapine 7.5 mg, and recommended that the plaintiff see a psychologist regularly.
[27]        Exhibit P2, PCB 35.
Ms Whiteman
47The plaintiff had an initial consultation with Celeste Whiteman, psychologist on 27 August 2020. Ms Whiteman completed a TAC Mental Health (Psychology) Treatment.[28] Ms Whiteman recorded that the plaintiff was suffering from major depression related to the transport accident. He had described being withdrawn from friends, and she noted a reduced capacity by him to engage with study and an inability to work. In response to having been asked to ‘identify risk factors for recovery’ Ms Whiteman recorded that:
As noted in previous report,[29] barrier's impeding Mr Rajput's return to study, work and connection with friends apprear [sic] mood related. instability of mood to engage and sustain engagement in study: fear associated with driving long distance, lack of energy and financial distress. Financially Mr Rajput has limited opportunities for employment due to limited skill and education.[30]
[28]Exhibit P3, PCB 36-38.
[29]        Ms Whiteman’s previous report was not tendered.
[30]Exhibit P3, PCB 37.
Advance Healthcare
48In November 2020, the plaintiff was assessed for multi-disciplinary pain management at Advance Healthcare. The plaintiff relied on three reports produced by that clinic.[31]
[31]        Exhibit P5, PCB 45-58.
49At the initial assessment on 18 November 2020, the plaintiff was assessed by Dr Hamedani (pain specialist), Dr Surkitt (pain physiotherapist) and Ms Emma Dumble (psychologist). Regarding the plaintiff’s mental health, his pain symptoms were reviewed from a psychological perspective. The plaintiff reported:
·High levels of pain catastrophising as measured by Pain Catastrophising Scale and clinical assessment
·Moderate levels of self-efficacy related to pain as indicated by the Pain Self Efficacy Questionnaire and clinical assessment
·Moderate level beliefs, which could impact on pain management including a strong focus on symptoms and a strong cure focus
·Unclear level of readiness for change based on clinical assessment[32]
[32]        Exhibit P5, PCB 51.

50Based on the psychological symptoms the plaintiff reported, he was considered to be suffering from:

·Extremely severe levels of depression based on DASS-21 score
·Extremely severe levels of anxiety based on DASS-21 score
·Severe levels of stress based on DASS~21 score
·PTSD type symptoms as measured by the Post Traumatic Stress Disorder Checklist - Civilian pedestrian accident.[33]
[33] Exhibit P5, PCB 51.

51The plaintiff completed the multi-disciplinary pain management program over a period of eight to twelve weeks in 2021.[34] He was discharged from the program on 24 May 2021. A letter from physiotherapist Dr Campbell Hogan to the plaintiff’s physiotherapist Mr Pundir at Parkmore Physiotherapy Centre recorded that the plaintiff had “made good progress following his program.”[35] No further information was provided in these reports as to the plaintiff’s psychological health following the completion of his pain management program. Further light is shed on the plaintiff’s treatment during the pain management program from the reports of treating practitioner’s Dr Hamedani and Ms Dumble tendered by the plaintiff.
[34]        Exhibit P5, PCB 54.
[35]        Exhibit P5, PCB 54.
Dr Hamedani
52The plaintiff relied on two reports dated 16 November 2020 and 10 March 2021 from pain specialist Dr Hamedani,[36] who treated the plaintiff at Advance Healthcare.
[36]Exhibit P4, PCB 42-44.
53The first report was prepared following an initial assessment of the plaintiff as part of the pain management program in November 2020. Dr Hamedani recorded that the plaintiff’s mental health had been significantly affected by the accident:
He feels down, anxious, frustrated, and hopeless. He thinks about his future obsessively and ruminates the thoughts [sic] about his accident. His sleeping has boon [sic] affected and he has repeated nightmares with the accident subject.[37]
[37]Exhibit P4, PCB 43.
54He further reported that the plaintiff had started to drink to calm down, but otherwise there was “no history of significant stress in the past” and the plaintiff related all of his mental health symptoms to the accident.[38]
[38]        Exhibit P4, PCB 43.
55Dr Hamedani diagnosed the plaintiff with:
(a)   chronic post-traumatic pain (after musculoskeletal injury to the left humerus and calf muscle) of moderate-marked severity; and
(b)   adjustment disorder with mixed anxiety and depressed mood in the context of depression and PTSD, in the context of his injury and persistent pain conditions.
56The second report of Dr Hamedani tendered by the plaintiff is a referral letter to psychiatrist Dr Shankar requesting that he manage the plaintiff’s “probable post-traumatic stress disorder.”[39] He recorded that the plaintiff was suffering from symptoms of anxiety including hypervigilance, abnormal sleeping, nightmares, and flashbacks and probable post-traumatic stress disorder.
[39]        Exhibit P4, PCB 44.
57Dr Hamedani recorded that the plaintiff’s medications included:
Mirtazapine 30mg nocte
Escitalopram 20mg daily
Paracetamol/ibuprofen
Gabapentin 100mg and
Celebrex 200mg daily.[40]
[40]Exhibit P4, PCB 44.
Ms Dumble
58The plaintiff first received treatment from psychologist Ms Dumble through Advance Healthcare’s pain management program in November 2020. The plaintiff continued seeing Ms Dumble for psychology sessions when that program ceased, until April 2022 and just before he left for America. The plaintiff tendered five reports of Ms Dumble’s reported dated 4 March 2021, 14 April 2021, 23 June 2021, 23 January 2022 and 19 October 2023.[41]
[41]        Exhibit P7, PCB 67-75.
59In her report of 14 April 2021:
(a)   Ms Dumble noted that the plaintiff’s presentation was consistent with post-traumatic stress disorder following the accident, with a co-morbid diagnosis of adjustment disorder with mixed anxiety and depressed mood as a result of his injuries and pain condition.
(b)   she opined regarding causation that the plaintiff’s psychological presentation appeared to be predominantly related to the plaintiff’s injury and pain condition sustained in the accident. She said, “there is no evidence of mental health issues or psychological symptoms prior to the injury.”[42]
(c)   Ms Dumble considered that the plaintiff’s function was presently impaired by his psychological symptoms, but she anticipated that he would improve over the next 6-12 months. She as well thought that he would benefit from continued psychological support and treatment.
[42]        Exhibit P7, PCB 69.
60Three of Ms Dumble’s reports dated 4 March 2021, 23 June 2021 and 23 January 2022, were directed to Melbourne Polytechnic requesting change to the plaintiff’s part-time studies and deferral of his exams, extra time to complete his assignments and lastly a deferral of his studies altogether as a result of his psychological symptoms attributed to the accident.
61In her most recent report dated 19 October 2023 addressed to the plaintiff’s solicitors, Ms Dumble:
(a)   commented that she had not seen the plaintiff since April 2022. She noted that he had initially presented with symptoms of low mood, hopelessness, reduced motivation, emotional dysregulation and depressive cognition as a result of the accident. He had described ongoing avoidance behaviour, feeling uncomfortable and anxious when walking near motor vehicles, hyper vigilance and episodes of flashbacks and nightmares related to the accident.
(b)   opined that the plaintiff was likely to benefit from continued psychological support and psychiatric treatment to assist with his psychological difficulties in the long-term, to address his PTSD symptomology and general psychological symptoms.
Dr Shankar
62The plaintiff consulted Dr Shankar, psychiatrist, on referral from Dr Hamedani. The plaintiff relied on two reports of Dr Shankar dated 13 April 2021 and 9 August 2021.[43]
[43]Exhibit P6, PCB 59-66.
63Following his initial consultation with the plaintiff on 30 March 2021, Dr Shankar proffered a diagnosis of:
-     PTSD
-     Adjustment disorder with depressed mood
-     Alcohol use disorder
-     Chronic pain syndrome[44]
[44]Exhibit P6, PCB 62.

64Dr Shankar altered the plaintiff’s medication, increasing his doses of the antidepressant Efexor to 225 mg per day in combination with Mirtazapine 30 mg and Prazosin 3 mg. The plaintiff reported an overall improvement in his mental state, but was keen to reduce his dose of Efexor due to erectile dysfunction.
65Dr Shankar last reviewed the plaintiff on 8 June 2021. At that time, the plaintiff reported ongoing alcohol binges and on one occasion experiencing visual hallucinations. The plaintiff reported that his mood was 4-6 out of 10, and he was complaining about problems with his concentration and ability to study.
66At that time the plaintiff’s medications were: Efexor 150 mg, mirtazapine 30 mg, Gabapentin 100 mg, Prazosin 3 mg and Celebrex 200 mg daily.
67In his second report, Dr Shankar opined that one of the barriers to an effective treatment response was the plaintiff’s lack of engagement. Dr Shankar noted that the plaintiff had been making gradual progress in terms of his overall mood and anxiety symptoms.
Dr Serry
68Psychiatrist Dr Serry, provided five reports at the request of the plaintiff’s solicitor.[45]
[45]Exhibit P9, PCB 82-124.
The first report
69His first report of 22 June 2020,[46] was for the purposes of conducting a psychiatric impairment assessment of the plaintiff and he noted an absence of pre-existing psychiatric illness. He said:
In terms of the psychiatric illness arising from the subject accident, the claimant in my opinion has developed a moderately severe adjustment disorder with anxious and depressed mood and with features of traumatisation.[47]
[46]Exhibit P9, PCB 82-90
[47]Exhibit P9, PCB 87.
70Dr Serry noted that following the transport accident the plaintiff had remained “somewhat physically symptomatic” although he appeared to have suffered “a more significant psychiatric reaction.”[48]
[48]        Exhibit P9, PCB 87.
71Dr Serry assessed the plaintiff as having a 15% collective impairment which was in the mid-range. He considered that 9% of that impairment was direct in nature and that 6% was secondary to the plaintiff’s physical injuries.
72He noted that the plaintiff had just started seeing a psychiatrist and had commenced on the anti-depressant Escitalopram and considered that this treatment was appropriate.
The second report
73Dr Serry in his second report dated 9 August 2021 undertook an impairment assessment. Again he noted an absence of any apparent pre-existing psychiatric illness. The plaintiff reported that he was struggling emotionally and had started failing in his studies, such that he needed to reduce his course load. He had also started drinking heavily on weekends,
74Dr Serry said that as a result of the accident, the plaintiff had developed “moderately severe chronic adjustment disorder with anxious and depressed mood Comorbid features of traumatisation consistent with a PTSD Substance use disorder in relation to alcohol with binge-drinking pattern.”[49]
[49]Exhibit P9, PCB 97.
75Dr Serry assessed the plaintiff as having a slightly higher collective impairment of 17% being in the mid to upper range. He apportioned 11% of that impairment as direct or non-secondary in nature, and considered that the remaining 6% of that impairment was secondary to the plaintiff’s physical injuries.
76Dr Serry considered that the plaintiff’s prognosis was guarded based on his lack of improvement over time, despite being under the care of a psychiatrist and psychologist, and having been treated with appropriate psychotropic medications. He considered that the plaintiff required further ongoing intervention from both his psychiatrist and psychologist, and that he required assistance to address his reported pattern of increased alcohol use.
The third report
77Dr Serry’s third report dated 24 January 2023 comprised a medicolegal examination. Dr Serry was provided with clinical records from the plaintiff’s treating GP Dr Loh, psychiatrist Dr Shankar and psychologist Ms Dumble. Dr Serry examined the plaintiff via video link from America for the purposes of the report.
78The plaintiff reported to Dr Serry that he had been taken in by his aunt and uncle in Iowa, and that he had neither studied nor worked since being there, and performed “very little” by way of domestic duties. The plaintiff said, “I just exist”.[50]
[50]        Exhibit P9, PCB 104.
79Dr Serry commented that since the plaintiff has been in America, he has been uninsured and not had access to any form of treatment for either his physical or mental health. He noted that the plaintiff was not attending a psychiatrist or psychologist, and was no longer taking his previously prescribed psychotropic medications, namely Efexor XR, mirtazapine and prazosin.
80The plaintiff reported that his social life is non-existent. Dr Serry wrote:
His social and recreational life was said to be virtually non-existent. He said he does not feel like going out and he cannot cope with camping or hiking. He does not make contact with friends who live nearby and he said that he is reluctant to engage in any activities as he fears that his leg pain will flare up and he will be left limping.
He said that he used to love dancing and was quite social.
After the accident he was drinking to excess and becoming rather volatile.
He is not drinking as much now as he is with family.[51]
[51]        Exhibit P9, PCB 104.

81The plaintiff told Dr Serry that since the initial assessment he had not been in a good place. Dr Serry recorded:
He said that he is constantly low in mood and on a visual analogue scale for mood where 0 is the worst the claimant has ever felt and 10 the best, he rated himself as between 2-3/10.
He said that he is somewhat motivated in theory but he knows that he cannot do anything, the claimant feeling as though everything is now out of his control.
He said that his interests are unable to be pursued.
He struggles to enjoy himself and he said that he spends much of his day shut-in in his room, lying down.
His energy level is low. He said that he tries to exercise but he said that he feels sluggish.

He said that his concentration and memory have both been poor. He is forgetful, distracted and much less well organised than he used to be in his thoughts. He said that even in the company of others he is physically present but mentally absent.
His sleep was said to be very interrupted by distressing nightmares both of the accident and also of the claimant attempting suicide in front of his family. He said that such dreams occur either every night or every second night and leave him feeling very unsettled.
In terms of appetite, the claimant was stress-eating prior to leaving Australia but now eats somewhat less and has lost about 6 kg in weight.
His confidence and self-esteem levels were said to be very low. He tends not to mingle with others and he described feeling as though the life that he had has been snatched away from him by the driver of the vehicle which struck him.
The claimant has had not infrequent suicidal thoughts and has made plans but has not made an attempt. When he was still in Australia and attending Advance Healthcare, he was given advice on a suicide hotline.
The claimant stated that he feels stressed and anxious, worrying a great deal about his health and the future. He said that when he is stressed, he experiences pain in his chest.
He also worries about the fact that he feels out of control in terms of his life.

He said that he cannot let his family in India know about his accident or about what has happened to him since the· accident, the claimant stating that there is no point and nothing good will come from it.
He said that he had to work very hard to create his own life and to leave India and he said that the sense of shame and humiliation at losing what he had achieved would be devastating.[52]
[52] Exhibit P9, PCB 105.
82Dr Serry proffered a diagnosis of:
1. Major depression with anxious features

2. Comorbid PTSD

3. Alcohol use disorder (now in partial abeyance)[53]
[53]Exhibit P9, PCB 104-105.

83On the need for plaintiff to obtain treatment, Dr Serry said “The claimant in my opinion is particularly unwell from a psychiatric perspective and urgently needs to be under the care of a consultant psychiatrist. Organising such treatment may well require coordination from Australia given the claimant's uninsured status in America.”[54]
[54]Exhibit P9, PCB 109.
The fourth report
84Dr Serry conducted a further medicolegal examination and provided a report dated 15 June 2023. He examined the plaintiff via-video link from the United States. He had been provided with a copy of psychiatrist, Dr Krapivensky’s medicolegal report dated 1 May 2023.
85Dr Serry said that he questioned the plaintiff about any pre-existing psychiatric issues. The plaintiff reported to Dr Serry that in 2018 there was a “major family scandal”, when he was advised that his father in India was having an affair and had gone to live with a new family.[55] The plaintiff reported that he was devastated by the news, however, in February 2019 he had returned to India for his sister’s wedding, and during that time had spoken to his father and felt that he was able to move on, at least in part from feelings of devastation. He said that on his return to Australia, he had been able to return to his study and work.
[55] Exhibit P9, PCB 116.
86Under the heading past psychiatric history, Dr Serry recorded that, “the claimant denied any formal mental health intervention however acknowledged that he did feel quite devastated by the family scandal involving his father in 2018.”[56]
[56] Exhibit P9, PCB 117.
87Dr Serry maintained his earlier diagnosis of major depression with anxious features, comorbid PTSD and alcohol use disorder (although now in abeyance). Addressing causality, Dr Serry said that:
I would suggest that the claimant most likely had a degree of premorbid vulnerability given the major family issue which he became aware of in 2018.
He appears to have struggled psychologically but according to self-report had come to a level of acceptance and was working and studying in ·the period leading up to the accident.
The transport accident of 3 May 2019 does in my opinion remain a cause of the claimant's current psychiatric injury and impairment. He has persistent pain, functional limitations, is depressed and anxious and remains traumatised by the experience of the accident.[57]
[57]Exhibit P9, PCB 120.
88Dr Serry considered that the plaintiff was precluded from performing pre-injury duties for the foreseeable future based on his psychiatric injuries alone. He otherwise maintained his opinion that the plaintiff urgently required the care of a psychiatrist but had not received any treatment since travelling to America.
The fifth report
89In preparation of his report of 13 September 2023, Dr Serry was provided with the plaintiff’s second further affidavit made 1 September 2023. He did not conduct a further examination of the plaintiff. The plaintiff’s second further affidavit outlined the plaintiff’s recent marriage.
90Dr Serry was asked by the plaintiff’s solicitors to comment on whether any of the material in the plaintiff’s second further affidavit, caused him to in any way change his previous opinion.
91Dr Serry said that he considered the transport accident to be a “significant contributing cause of the claimant’s current psychiatric injury and impairment”.[58] He considered that travel from the United States to Melbourne for the purposes of the hearing, could be determinantal to the plaintiff’s mental health and that giving evidence via video link would be less distressing for the plaintiff.
[58]Exhibit P9, PCB 122.

Defendant Medicals
Dr Slesenger
92Dr Slesenger is an occupational physician who examined the plaintiff via telehealth and prepared a report for the defendant solicitors dated 6 March 2023.[59] Dr Slesenger noted that the examination occurred in unusual circumstances, as the plaintiff was in a vehicle travelling to collect some groceries and food for his animals.
[59]Exhibit D1, DCB 8-21.
93Dr Slesenger’s report is of limited probative worth in this sub-paragraph (c) application, his speciality relating to the plaintiff’s physical injuries.
94The plaintiff told Dr Slesenger that his symptoms consisted of:
(a)   ongoing severe pain over the anterior and posterior aspects of the left shoulder and restricted range of movement in the left arm;
(b)   residual pain in the posterior aspect of the left knee that radiated into his calf; and
(c)   cognitive impairment including difficulty recalling information and concentrating, as well that he had developed a stammer.
95The plaintiff told Dr Slesenger that he had developed severe depression and anxiety and that his symptoms were managed by a psychiatrist and psychologist, but he had been unable to access treatment since moving to the United States. The plaintiff also told Dr Slesenger that he had developed a medication side effect known as serotonin syndrome, which had adversely affected his response to treatment. The plaintiff said he was managing his physical symptoms with ibuprofen.
96Regarding the plaintiff’s function, Dr Slesenger recorded:
Mr Rajput advised that he has difficulty forward reaching and laterally raising on the left side. He has difficulty weight bearing on the left side, difficulty climbing up and down stairs, difficulty walking over uneven ground and is unable to walk, stand or sit for more than 10-15 minutes.[60]

[60]Exhibit D1, DCB 12.
97Considering the plaintiff’s reporting symptoms and the reports of his treaters, Dr Slesenger considered that there was a significant functional element to the plaintiff’s presentation.
98Dr Slesenger recommended that the plaintiff return to work four hours a day, four days a week graduating to his pre-injury hours over six to eight week.
99With respect to work capacity Dr Slesenger wrote:
I am of the opinion that based on Mr Rajput’s residual left shoulder organic physical impairment alone, he could not return to his pre-injury role as the job demands would lie outside his capacity limits. Nevertheless, I am of the opinion that he retains capacity for work with restrictions, namely:
·No push, pull, carry or lift over 10 kg on an occasional basis and 5 kg on a repetitive basis.
·Avoid sustained forward reaching.
·Avoid over shoulder reaching.[61]
[61] Exhibit D2, DCB 20.

Dr Krapivensky
100Dr Krapivensky is a psychiatrist who prepared a report for the defendant insurer dated 1 May 2023, following examination of the plaintiff via zoom.[62]
[62]        Exhibit D2, DCB 29-37.
101The plaintiff told Dr Krapivensky that in the preceding 12 months whilst living in Iowa, he had stopped all physical and psychological treatment as he was unable to afford it. He had not taken any medication, not consulted any healthcare professionals, and had discontinued his studies. The plaintiff told Dr Krapivensky that he would like to “get back to Australia but has no money to start the immigration process.”[63]
[63]        Exhibit D2, DCB 31.
102Dr Krapivensky proffered a diagnosis of untreated major depression. She noted concern that the plaintiff was a “fairly high suicidal risk”.[64] Dr Krapivensky observed that it was concerning that the plaintiff was not receiving any psychiatric treatment.
[64]        Exhibit D2, DCB 35.
103Dr Krapivensky thought that the plaintiff had psychiatric capacity to return to suitable employment, and that he would be able to perform his pre-injury duties. She considered in fact that it would be therapeutic for the plaintiff to do so. Dr Krapivensky further considered that the plaintiff had capacity to work, for example, as a sales assistant in a supermarket or in either of the repetitive manual jobs identified in a vocational assessment report dated 29 May 2020.[65]
[65]        The vocational assessment report was not tendered by either party.
104Addressing causation Dr Krapivensky noted:
He told me that in 2018 there were significant family issues which affected his study.
Mr Rajput found out about this in early 2018 when his uncle told him about his father's second family and his half siblings.

He was involved in a motor vehicle accident in which he was a pedestrian hit by a car and he continues to have symptoms of traumatisation relevant to that.
After the accident in 2019, his already fragile mental state was significantly aggravated and he developed mood disorder which was diagnosed as adjustment disorder with anxiety and depressed mood and features of traumatisation as well as alcohol use disorder.
There is no doubt that the motor vehicle accident was a cause of aggravation of his underlying fragile mental state. However, this has since been replaced by further significant events in his life as described.
105Dr Krapivensky considered that the accident initially and materially contributed to the plaintiff’s mood disorder, but that it was no longer a significant materially contributing factor to his current psychiatric condition. She thought that the plaintiff’s financial, social and family situations were far more significant factors having an impact on his mental health and depression, than his physical functioning.

The Plaintiff’s Academic Records
106The defendant tendered the plaintiff’s statement of results from his course of study for the Bachelor of Information Technology degree he undertook at Melbourne Polytechnic from 2017 - 2022.[66] The statement revealed:
(a)   in 2017, when the plaintiff enrolled in the course he completed four subjects. His best mark obtained was a 74 or “D” for distinction in the subject called ‘IT Project Management’. He otherwise achieved two pass marks of 50, and a credit mark of 66 for his other subjects.
(b)   in 2018, the plaintiff was enrolled in six subjects. His results were an “N” for fail in each subject. In two subjects he achieved finals marks of 3 and 39 respectively, but in the remaining four subjects the final mark was recorded as a 0.
(c)   in 2019, the plaintiff enrolled in four subjects and he received two credit marks of 65, a fail mark of 10 in ‘System Analysis and Design’ and a distinction of 72 in the same subject, presumably the second time he completed it.
(d)   in 2020, the plaintiff was enrolled in four subjects and failed them all. In two subjects, he achieved final marks of 0 and it seems that he attempted the assessment in the other two subjects achieving final marks of 11 and 14 respectively.
(e)   in 2021 the plaintiff enrolled in three subjects. He achieved a pass mark of 52 in ‘Network Security’, having that year failed the same subject. He as well failed the subject ‘Network Design’ achieving a final mark of 7.
(f)    in 2022, the plaintiff enrolled in two subjects. However, he withdrew from both.
[66]        Exhibit D3, DCB 38-39.

The Plaintiff Examined
107In accordance with usual practice in such applications, the plaintiff confirmed that he had sworn three affidavits dated 25 August 2020, 27 January 2023 and 1 September 2023 the contents of which he adopted as true and correct.

The Plaintiff Cross-Examined
108The plaintiff confirmed that he came to Australia in 2016 on a three year student visa, which he renewed for a further three years when the visa expired in 2019. In the 2016 academic year, the plaintiff was enrolled in an arts/commerce/ accounting bachelor’s degree at Deakin University. The plaintiff said he believed he had passed his subjects that year.
109The plaintiff said that in late 2016 he decided to change courses to study Information Technology at Melbourne Polytechnic.
110The plaintiff confirmed that he commenced at Melbourne Polytechnic undertaking four subjects in the second half of the 2017 academic year. He explained that there was some delay occasioned from when he ceased at Deakin University in late 2016, and commenced at Melbourne Polytechnic because he needed to obtain a “release letter” from Deakin and so only commenced at the Polytechnic with a later student intake.
111Before he commenced at Melbourne Polytechnic, the plaintiff said that he was working part time at Dual Foods. He was working there when the transport accident occurred and was returning home from work on the night of the accident. The plaintiff said he had not worked elsewhere in Australia prior to the accident.
112The plaintiff said that in 2018 he was a full time student at Melbourne Polytechnic. Early that year he discovered the problems with his family in India. The plaintiff said, “one of my family members reached out to me regarding my father's guilty [sic], and I was told he had another family.”[67]
[67]        T 8, L 3-5.
113Mr Moulds took the plaintiff to his academic results for 2018 in the wake of the family ructions, and the following evidence is distilled from their exchange. The plaintiff:
(a)   failed a subject called ‘Effective Business Enquiry and Communication’ having achieved a final mark of 39. He said that his mark of 39 was based on an assignment and an exam;
(b)   achieved nought in a subject called ‘Mathematics for Information Technology’, because he did not submit an assignment, nor attend the examination. The same was true of his results for a subject called ‘Systems Analysis 3’;
(c)   achieved nought final marks in ‘IT in Business Crime and Security Management and Governance’ because he had, in Mr Moulds words, “barely attended” his course at Melbourne Polytechnic during 2018; and
(d)   received three credit transfers for electives that he had completed at Deakin University.
114Mr Moulds asked the plaintiff what he was doing with himself in 2018, and the plaintiff replied, “nothing.”[68] The plaintiff agreed that he was “shattered by what had happened at home” with his father.[69] The plaintiff agreed that he had described the situation to Dr Serry as “…like a bomb exploding”.[70]
[68]        T 9, L 16.
[69]        T 9, L 17.
[70]        T 9, L 20-21.
115The plaintiff said that in 2017, he was living with three housemates in a share house in Keysborough. He moved to another share house with the same housemates in Tarneit in 2022.
116The plaintiff has told his aunt and uncle with whom he lives in Iowa about the transport accident. His aunt is on his mother’s side. However, the plaintiff’s mother and his only sibling, a younger sister, remain in India and he has not told them about the transport accident. He refuted Mr Mould’s the suggestion that this secrecy has caused any difficulties in the relationship between his mother and his aunt, whom he said, was happy to maintain his confidence.
117In 2019, the plaintiff travelled to India for his younger sister’s wedding. He said he spoke to his father. Mr Moulds suggested to the plaintiff that at that time he was still “somewhat devastated” about the situation with his father.[71] The plaintiff said “my father made his decision. I made mine.”[72] He added that he had decided “to move on.”[73]
[71]        T 12, L 10.
[72]        T 12, L 11-12.
[73]        T 12, L 13.
118The plaintiff confirmed that he had been treated by psychiatrist Dr Muruththettuwegama in 2020, having been referred by his GP Dr Loh. He said that he did not tell Dr Muruththettuwegama about the problems with his family.
119The plaintiff was treated between March and June 2021 by Dr Shankar, a psychiatrist, who prescribed the plaintiff medications for the consequences of the transport accident. The plaintiff agreed that he did not tell Dr Shankar about the problems with his family in India, about which he had become aware of in the year before the transport accident.
120The plaintiff agreed that from November 2020 to April 2022, he was treated by Ms Dumble. He agreed that he did not mention the fact that his family had “ruptured” to Ms Dumble during the course of her treatment.[74]
[74]        T 15, L 8.
121The plaintiff agreed with Mr Moulds that he received loss of earnings payments from the TAC for a period of about 18 months, from 11 May 2018 until 2 November 2020 of between about $500 or $600 a week. When the payments ceased, and with the assistance of an organisation called Work Focus, he agreed that he commenced work as a car detailer and worked in that job for around 25 hours per week, until he travelled to the United States in May 2022. He said that his job involved him attending various sites at the request of his employer to provide car detailing.
122Mr Moulds referred to the examinations conducted by Dr Serry at the request of the plaintiff’s solicitors. Mr Moulds put to the plaintiff the contents of Dr Serry’s first report dated 22 June 2020 in which, under the heading “Past History” he recorded, “He said that there were no major traumas or upheavals apart from the ordinary ‘family stuff.’”[75] Mr Moulds noted that this was in the context of the plaintiff having provided Dr Serry with an outline of his family situation in India and which account included that he was the eldest of two siblings, that he grew up within a large extended family environment and “his parents are alive and together and have a family business with other extended family members.”[76] The plaintiff agreed he gave such an account to Dr Serry.
[75]        Exhibit P9, PCB 85.
[76]        Exhibit P9, PCB 85.
123Mr Moulds suggested to the plaintiff that the idea his parents were together as of June 2020 was a lie, but the plaintiff disagreed and said that at that time:
My parents officially on paper, they are still together. My father has left our family but they are still together. They are still in the business and the line you referred to: "No major traumas or upheaval apart from the ordinary family stuff", it's in regard to 2019 when I went back for my sister's wedding. We had a chat, a proper chat, I will say that - more than that, actually - and we buried the hatchet. We understood the environment that created the situation and it did not have any effect on me after that talk and the time that I spent with my family, as you can see - as I stated earlier, that I flew [sic] what I had to do. I had to move on. Hence, when I came back I threw myself in studying and making better choices.[77]
[77]        T 16-17, L 23-5.
124Mr Moulds put to the plaintiff that the picture he had painted to Dr Serry was that nothing in the past of any substance had occurred bar ordinary family issues. The plaintiff said, “it is ordinary, yes, sir.”[78] He said that “cheating is normal but, again, I can't stress enough that it had no effect on me because it can be shown in my study results. I was getting better grades. He made his choices. I can't do anything about it. I had to focus on myself, I had to focus on my future.”[79]
[78]        T 17, L 11.
[79]        T 18, L 11-15.
125The plaintiff said that when he returned to Melbourne after his sister’s wedding in 2019 he undertook two subjects at Melbourne Polytechnic and passed both. The plaintiff said that he failed the subject System Analysis and Design because he could not attempt the examination due to the consequences of the accident.
126Mr Moulds suggested to the plaintiff that he was still struggling significantly with his studies in the first semester of 2019 due to his family situation. The plaintiff said that in 2018 he failed the subject ‘Effective Business Enquiry and Communication’ and obtained a final mark of 39, and this was because his family situation had adversely affected him emotionally. However, he said that he repeated the subject in the first semester of 2019 and achieved a credit score of 65. Likewise, he said that although he failed the subject ‘Network Communication Concepts’ in 2018 and scored a nought, he attempted the subject again in the second semester of 2019 after the accident and achieved a credit mark of 65. Similarly, he said that he re-sat the subject, ‘System Analysis and Design’ after the accident and in the second semester of 2019, and achieved a distinction mark of 72.
127Mr Moulds again suggested to the plaintiff that he was still struggling to a considerable degree with his academic work in the first semester of 2019, to which the plaintiff answered, “but I was improving myself too.”[80]
[80]        T 21, L 24.
128The plaintiff agreed with Mr Moulds that he lost his driver’s licence for the period from 29 March 2021 to 28 May 2022 for driving with a blood alcohol reading of .14. The plaintiff denied that the loss of his licence had contributed to his depression. He said that he managed to get around during the period of his suspension using public transport.
129The plaintiff agreed with Mr Moulds that the loss of the plaintiff’s licence was a “wake-up call” for him in regard to his alcohol consumption.[81] Asked if he started reducing his alcohol consumption after the loss of his licence the plaintiff said, “sometimes, yes. Sometimes I was not able to control it.”[82]
[81]        T 22, L 9.
[82]        T 22, L 11-12.
130Mr Moulds returned to the plaintiff’s studies at Melbourne Polytechnic in the 2020 academic year. The plaintiff agreed that in the 2020 academic year he had enrolled in four subjects, however, he did not attend any of the examinations.
131In the 2021 academic year, the plaintiff failed the two subjects in which he was enrolled in semester one. In semester two he undertook one subject, it being one of the two he had failed in semester one, and he obtained a pass mark.
132The plaintiff enrolled in two subjects for the 2022 academic year, but he did not attend classes, nor did he enrol in any further subjects. The plaintiff ultimately deferred his studies from Melbourne Polytechnic in 2022, the same year that his student visa was set to expire.
133Mr Moulds referred to a “to whom it may concern” letter from the plaintiff’s psychologist Ms Dumble written in January 2022, the plaintiff agreed he had supplied to Melbourne Polytechnic. The letter said that the plaintiff’s psychological distress levels following the accident had continued to act as a significant barrier to him completing his studies and he would benefit from having a break from his studies and returning to studies in semester two.
134Mr Moulds suggested to the plaintiff that he did not tell Ms Dumble that prior to the transport accident in 2019 he had failed every subject, to which the plaintiff said he guessed so.
135The plaintiff said that when he deferred his studies from Melbourne Polytechnic his intention had been to travel to North America for a break. He agreed that he knew that at some time in 2022, he had to apply to extend his Australian Visa, but he said he could not remember precisely when that would have been required.
136The plaintiff agreed that he attended psychologist Ms Dumble in January, March and April 2022, and that he last attended Dr Shankar, psychiatrist, on 8 June 2021, approximately one year before he travelled to the United States in May 2022. The plaintiff agreed that Dr Shankar had prescribed him Efexor and Mirtazapine for his emotional state.
137Mr Moulds put to the plaintiff that he would have run out of his medication soon after his last attendance on Dr Shankar, and that the explanation for him not having returned to Dr Shankar was that he no longer needed the medication. The plaintiff disagreed and said that Dr Shankar had given him sufficient repeats, and that he had enough to almost see him through the duration of his anticipated travels to the United States, and he only realised subsequently that he was likely to have exhausted the repeats three to four days before his scheduled return to Australia.
138Mr Moulds next took the plaintiff to a clinical note of the plaintiffs last attendance on Dr Shankar dated 8 June 2021.[83] The note recorded that Dr Shankar wanted to see the plaintiff a month later to review his medication dosages. When asked by Mr Moulds why he had not returned to see Dr Shankar before he departed to the United States, the plaintiff said it was because he had his medication with him. He said that he only went to see Dr Shankar when he needed medication.
[83]        Exhibit D6.
139Mr Moulds suggested to the plaintiff that his explanation that he only attended on Dr Shankar when he required medication was problematic, given that he had attended Dr Shankar five times between 30 March and 8 June 2021. The plaintiff said that he went not only for his medication, but also to alter the dosages of his medication. The plaintiff said that at the time of his last attendance on Dr Shankar on 8 June 2021, he had five repeats of Effexor. He said he was taking one each of Effexor and Mirtazapine a day. He said that he did not realise it at the time, that had his travel proceeded as scheduled, he would have arrived back in Melbourne on 8 July 2022 and some three or four days after he would have exhausted his medication.
140Mr Moulds calculated that the plaintiff would have required around 390 Effexor pills to see him through a daily dose from time of his last attendance on Dr Shankar in June 2021 to his return from America in July 2022. The plaintiff estimated that each packet of Effexor contained approximately 40 to 50 Effexor tablets.

141The plaintiff was taken to Ms Dumble’s clinical records. An entry dated 20 December 2021 read:
No acute issues or concerns presented at check in.
Update: went and celebrated passing uni exams +units – working full time to save money for trip away
– need to book flights – need more clarity r.e. rules
– expensive flights - return way
- started gym – 4 days per week, hoping to join class to gain strength
[84]Exhibit D5, DCB 49.
- significant reduction in alcohol – no binge drinking[84]

142The plaintiff agreed that the note accurately recorded his condition at the time. When it was suggested to him that the note recorded him giving Ms Dumble an account of considerable improvement in his level of functioning and life generally, the plaintiff said, “I was making progress.”[85]
[85] T 33, L 22-23.
143The plaintiff was taken to a clinical note by Ms Dumble dated 16 March 2022, which was the plaintiff’s last attendance on her. It read:
- lodged visa + wants to go to Canada road trip, needs VISA
- preparing for US – needs to save, hoping to go in April
- issues w/ emotions and regulating emotions was noted
[86] Exhibit D5, DCB 45.
- issues w/ rental – having to move, moving to West, to Tarneit[86]

144The plaintiff explained that he did not ultimately apply for a visa to visit Canada, because he had been granted a tourist visa for entry into the United States which gave him an initial six month entry, although he was not permitted to work whilst there.
145Mr Moulds referred to documents that the plaintiff’s solicitors had produced to the defendant relating to any application for, or the granting of, a visa to enter Australia. Mr Moulds asked the plaintiff whether it would have been correct that he lodged an application for a student visa on 9 March 2022. The plaintiff said he guessed so. He said the visa would have permitted him to stay in Australia for at least another two years. He agreed that he needed to undertake a medical assessment as part of his visa application. He said he was informed of the requirement on 27 May 2022, five days after he had travelled to the USA. He said that there was a waiting period for appointments and so he booked whatever date was available for a medical exam in Australia, which turned out to be 29 July 2022.
146The plaintiff was unable to undertake the required medical assessment and so did not meet the requirements for the grant of a visa. He was unable to return to Australia because he contracted Covid whilst in the United States. The plaintiff said that he texted his immigration agent to advise him of the situation, and then received notification from the Department of Home affairs that his application for an extension of his student visa had been refused. He said that he did not understand that he had a right to appeal the delegate’s decision from outside of Australia.
147The plaintiff confirmed that he had been living rent-free with his aunt and uncle in Iowa since 2022. He said that he had looked into getting an appointment with an American psychologist or psychiatrist “but every place required insurance and an out of pocket expense that was just too expensive because the health care system doesn't work like it works in Australia.”[87]
[87]T 39, L 18-20.
148Mr Moulds asked the plaintiff to list the practitioners in America of whom he had made enquiries and the plaintiff said, “I did not get in touch with but I looked it up on internet and the first thing they would ask is whether you have insurance.”[88]
[88] T 39, L 23-25.
149The plaintiff said that he would require a prescription to obtain the medicines he was previously on as they are not available over the counter. Mr Moulds asked the plaintiff if his evidence was that it’s “virtually impossible” to resume any sort of treatment for his emotional state whether from a GP, psychologist, psychiatrist or otherwise in the United States. The plaintiff said that “unless I have a lot of money then no.”[89]
[89] T 40, L 7.
150Mr Moulds directed the plaintiff to his examination by Dr Slesenger conducted in March 2023. Under the heading activities of daily living, Dr Slesenger wrote that the plaintiff:
…can dress, wash, shower and toilet himself.

His family attend to most domestic duties including shopping, cooking, cleaning and laundry. He will assist with light domestic duties. He has no particular pattern to his sleep-wake cycle. He wakes during the night and he spends the day in bed. He rarely ventures out of his room. He will use the Internet and watch TV.[90]
[90]        Exhibit D1, DCB 13,
151The plaintiff agreed with the account attributed to him by Dr Slesenger that his family attended to most domestic duties. Mr Moulds asked the plaintiff what domestic duties he helped with and the plaintiff replied, “I would just help them with the bins and maybe chopping the vegetables for my aunt.”[91] He said he mostly does light work.
[91]T 40, L 30-31.
152Mr Moulds asked the plaintiff about his relationship with his wife. The plaintiff said that that they married on 28 August 2023 having met in late 2022. She is an American citizen who has lived in Iowa all her life and has a four year old child. He said that they met at a bar, close to the plaintiff’s residence. He had gone there with some of his aunt and uncle’s friends. He said, “they have kids and they wanted to show me around and I wanted to get drunk.”[92]
[92]T 42, L 20-21.
153The plaintiff agreed with Mr Moulds that he had taken on the responsibility of being a husband and stepfather because he believed that he was capable of doing so. The plaintiff said “I am trying my best, I would say that. My wife does most of the heavy lifting at the moment but I am trying my best.”[93]
[93]        T 43, L 14-16.
154The plaintiff said that he was living with his wife and her child at a place about a 20 minute drive from his aunt and uncle’s house. He said that he did not see his aunt and uncle regularly.
155When asked whether he dated Lisa before they married, the plaintiff said “I wouldn't call it a date. We had a very strange relationship which evolved into something that you are seeing currently.”[94]
[94]        T 43, L 26-28.
156Mr Moulds directed the plaintiff to that part of Dr Slesenger’s report that the plaintiff had said that he spent the day in bed and rarely ventured out. The plaintiff confirmed that this was the case at the time that his “strange relationship” with Lisa was evolving.
157The plaintiff agreed with Mr Moulds who suggested to him that it was rare for him not to spend all day in bed, before he met Lisa.
158Mr Moulds asked the plaintiff whether since moving in with Lisa in August 2023, he still spent all day in bed and he said, “Yes. I will do some work around the house. As I stated, I am trying my best, but she does the heavy lifting, yes.”[95]
[95]        T 44, L 16-18.
159When Mr Moulds asked the plaintiff if any discussion had occurred that Lisa could fund some medical treatment for the plaintiff, he remained adamant that he would need to become a permanent resident or citizen to receive any treatment.

Plaintiff Re-Examined
160Mr McNab asked the plaintiff some questions about the American public health system. The plaintiff said that the system was very different to Australia and that he needed a lot of money to access treatment in the USA. The plaintiff explained that since marrying Lisa, he has started the process to apply for permanent residency, and that it in part requires an expensive medical assessment. The plaintiff said he understood that once he obtained either permanent residency or American citizenship, he would be entitled to the Medicaid system.
161The plaintiff was asked why he thought he needed the break when he embarked on his solo trip to the United States and he said:
Because I needed a break from the constant that had become my life at that point, stressing about not finishing my studies, anxious, nightmares, having no support from my family because no-one else in my family knows except my aunty and uncle so these are the only people I can turn to for support. Taking a break so that I could have some comfort, knowing there is someone in my corner.[96]
[96] T 50-51, L 25-2.
162Mr McNab asked the plaintiff why he had not told his treating doctors about the situation with his family in India. The plaintiff said that he didn’t mention it because it did not affect him after he had visited India in 2019 and had a lengthy discussion with his father. He said that it made him understand his father’s choice and after which he accepted it, such that when he returned to Australia in 2019 his mental health was better than before.
163The plaintiff confirmed that he had not sought any treatment from a psychologist or a psychiatrist prior to the transport accident, nor had he had any suicidal thoughts. The plaintiff explained that he still experiences nightmares in which he commits suicide in front of his friends and family, and nightmares in which the transport accident is re-enacted worse than in reality. He said that this type of nightmare occurs “almost every other day.”[97]
[97] T 52, L 6.

Defendant’s Submissions
164Mr Moulds submitted that the plaintiff having experienced significant difficulties with his immigration status and his family was important. He submitted that in order to find for the plaintiff, I would need to be satisfied that the motor vehicle accident of itself, had caused the serious and severe consequences from which the plaintiff suffers.
165Mr Moulds referred to Anthony Rowe v Transport Accident Commission,[98] and in particular paragraph 86 of the decision, in which the Court of Appeal said:
The applicant’s contention that the judge should have asked himself, as a determinative question whether, but for the 2007 collision, the applicant would have gone on to develop his present psychiatric condition, must also be rejected. To pose such a question would be to fall into the error identified in the authorities to which we have already referred. Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.[99]
[98] [2017] VSCA 377 (“Rowe v TAC”).
[99]Ibid, [86].
166In essence Mr Moulds’ argument was that there were other contributing factors to the cause of the plaintiff’s mental condition, and this is a case where the total condition if serious has been made so only because of a contribution by the transport accident. Mr Moulds submitted that I should not be satisfied that the plaintiff had moved on from the travails of his family circumstances prior to the transport accident, and that as well, the difficulties with respect to his immigration status and incapacity to obtain medical treatment are contributing to his present mental condition.
167Mr Moulds submitted that it would be necessary for me to be satisfied that the plaintiff’s family situation and immigration status have no part to play in the plaintiff’s mental condition and the sole cause had been and is the transport accident.
The Plaintiff’s Family Matters
168Mr Moulds addressed the pre-existing family history and:
(a)   said that none of the treating doctors had the benefit of that history, as the plaintiff had not volunteered the same and that the fact his family history was not mentioned at all to treaters was a matter of some importance.
(b)   noted that the family revelation had taken the plaintiff out of his studies for a full academic year, which was an important consideration, bearing in mind that the plaintiff had come to Australia to study at some expense to his family.
(c)   submitted that because the plaintiff had not reported the history involving his father to any treating doctor, the Court does not have the benefit of any treating doctor’s assessment about whether or not the plaintiff’s symptoms had resolved prior to the accident as the plaintiff would have it. There was no contemporaneous evidence as to whether or not the plaintiff’s psychiatric symptoms following his family difficulties had in fact resolved.
(d)   pointed out that the plaintiff’s first two affidavits had not made any comment on the family situation.
(e)   contended that the extent of psychiatric evidence is that gleaned from retrospective reasoning contained in the report of Dr Krapivensky and Dr Serry’s final report.
(f)    argued that the only factual basis on which I could find that the plaintiff’s family issues were no longer affecting him was if I accepted the plaintiff’s evidence, but that the plaintiff had an incentive to claim that he had made his peace with his father and had moved on before the transport accident.
(g)   urged me to find that the plaintiff’s family problems remain a significant contributing factor to his present condition.
169Mr Moulds submitted that the objective evidence of how the plaintiff was coping in 2018 when his family difficulties surfaced was that of his academic record, and with him having failed each subject he was enrolled in at the Melbourne Polytechnic that year.
170Mr Moulds submitted that the subsequent development of the plaintiff’s severe mental condition would not have occurred but for the plaintiff’s pre-existing vulnerability caused by his family trauma such that both events were causative of the plaintiff’s present condition.
171Mr Moulds submitted that support for the submission that both the family disruption and the transport accident were causative of the plaintiff’s condition is expressed in the opinion of Dr Krapivensky who said “there is no doubt that the motor vehicle accident was a cause of aggravation of his underlying fragile mental state. However, this has since been replaced by further significant events in his life as described.”[100]
[100]      Exhibit D2, DCB 35.
172Mr Moulds referred to the plaintiff’s evidence that in 2019, on his return to Australia from India, and where he had cleared the air with his father, that he threw himself into his studies. Mr Moulds submitted that the plaintiff’s academic transcript was not consistent with the plaintiff’s evidence, with him having achieved two credit marks with one of the grades in ‘Network Communication Concepts’ having been obtained in the second semester of 2019 following the accident, and in the same semester the plaintiff having achieved a distinction mark in ‘System Analysis and Design’. Mr Moulds submitted that such relatively good marks did not bespeak the severe psychiatric problem following the accident that the plaintiff has sought to establish. Equally, it does not bespeak of the previous family disturbance continuing to prevail on the plaintiff.
173Mr Moulds submitted that I could not be satisfied which occurrence, whether it be the family dynamic or the subsequent transport accident, as the cause of the plaintiff’s severe mental condition. I could not be satisfied, as required by Rowe v TAC[101] that the plaintiff’s severe mental condition was caused by the transport accident, because the plaintiff’s family issues were still at the time of the accident causing the plaintiff emotional distress.
[101] [2017] VSCA 377.
174Mr Moulds further addressed the medical evidence. He noted that the plaintiff had not reported his pre-existing family issues to Dr Serry whom he attended for examination at the request of his solicitors. It was not until Dr Krapivensky obtained a history from the plaintiff about his family that Dr Serry had reason to comment on the same in the fourth of his five reports dated 15 June 2023 as opposed to the plaintiff’s attendance on Dr Serry on 24 January 2023 when he recounted a positive pre-existing medical history with no family problems.
175Mr Moulds submitted that Dr Serry had been provided with a fundamental misunderstanding of the plaintiff’s history, noting also that he was under the misapprehension that the plaintiff had travelled to the USA because his Australian visa was not extended.[102]
[102]      Exhibit P9, PCB 102.
176Mr Moulds observed that in Dr Serry’s report dated 24 January 2023, and prior to him having come into knowledge of the plaintiff’s family difficulties, he considered that the plaintiff had suffered “a very significant psychiatric reaction” to the accident.[103] Dr Serry was concerned about the plaintiff writing:
The claimant in my opinion is particularly unwell from a psychiatric perspective and urgently needs to be under the care of a consultant psychiatrist. Organising such treatment may well require coordination from Australia given the claimant's uninsured status in America.
The claimant's background reveals a claimed non-traumatic upbringing within a large extended family environment in India, no acknowledged family history or past history of mental health issues and at least according to self-report, a sound premorbid adjustment.[104]
[103]Exhibit P9, PCB 108.
[104]      Exhibit P9, PCB 109.
177When Dr Serry obtained a history of the plaintiff’s family difficulties in June 2023, following the Krapivensky report, all he was privy to was the plaintiff’s self-report that whilst in India in early 2019 for the plaintiff’s sister’s wedding, he had spoken with his father and “felt that he was able to move on at least in part from feelings of devastation.”[105] Mr Moulds submitted that it was a tight timeframe in which for the plaintiff to assert that he had recovered, noting in particular, that he had admitted to Dr Serry that his studies had been “affected” by the drama that had occurred, when in fact, he had failed his studies in the 2018 academic year. Mr Moulds relied on an absence of informed medical opinion to support the proposition that the plaintiff had moved on in a meaningful sense from what had happened with his father.
[105]      Exhibit P9, PCB 116.
178Mr Moulds pointed out that Dr Serry following disclosure of the plaintiff’s family history said that:
The transport accident of 3 May 2019 does in my opinion remain a cause of the claimant's current psychiatric injury and impairment. He has persistent pain, functional limitations, is depressed and anxious and remains traumatised by the experience of the accident.[106]
[106]Exhibit P9, PCB 120.
179Mr Moulds argued that although Dr Serry wrote that the transport accident was a relevant factor to the plaintiff’s presentation, the use of the words “a cause” did not suggest that the family history about which he had become aware was not a relevant matter. Mr Moulds also relied on Dr Krapivensky who recorded the plaintiff as having said “that the whole situation was ‘a huge bombshell… still a mess.’”’[107]
[107]Exhibit D2, DCB 31.
180Mr Moulds submitted that the plaintiff had still struggled through his academic work in the first semester of 2019.
181Mr Moulds said that the singular fact to assist the plaintiff is that he was not in receipt of any medical or psychiatric assistance prior to the transport accident.
182Mr Moulds submitted that it is a matter of some importance that the plaintiff’s wife, an English speaking American citizen, was not put on affidavit in support of the plaintiff’s application.
183Mr Moulds submitted that Dr Krapivensky’s report was to the effect that the plaintiff was in severe trouble and yet, she had no knowledge of the plaintiff’s relationship with Lisa and neither did Dr Serry. In fact Dr Serry did. Mr Moulds argued that the level of dysfunction the plaintiff had reported to Dr Serry and others, was incompatible with the plaintiff’s evolving romantic relationship and subsequent marriage and the taking on by him of the duties of a husband and stepparent to her child.

184Next Mr Moulds addressed the issue of permanency of the plaintiff’s mental condition. He submitted that the test was as espoused in Jose Cardoso v Staff Australia Payroll Services Pty Ltd that, "That task remains 'to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future’."[108] Mr Moulds submitted that the defendant did not dispute stability of the plaintiff’s condition, but that the plaintiff’s condition had deteriorated because he was not receiving any treatment in the United States but that the plaintiff’s evidence included that he was in the process of applying for permanent residency in the United States, such that he could eventually obtain treatment under its health system. Implicit in Mr Moulds submission is that the plaintiff in the future might be able to obtain treatment which might improve his condition.
[108] [2019] VSCA 139, [47] (citation omitted).

Plaintiff Submissions
185Mr McNab addressed causation. He submitted that the plaintiff gave his evidence in a credible and reliable manner and had made appropriate concessions with respect to his family events occurring in 2018. The plaintiff’s evidence was that he had spoken to his father on a number of occasions at his sister’s wedding in India in 2019, and had made the decision to move on with his life.
186As to Dr Krapivensky’s opinion, that at the time of the accident the plaintiff was still dealing with his family issues, Mr McNab submitted that when read in the context of the entirety of the report, Dr Krapivensky’s reporting should be read that the family issues were not necessarily still prevailing upon his mental state at the time of the accident. More importantly, Mr McNab submitted that there was no evidence or signs that the plaintiff was psychiatrically impaired in the lead up to the accident.
187Mr McNab submitted that the defendant’s case almost entirely depends on the plaintiff’s academic record. However, Mr McNab observed that the plaintiff to his credit conceded that he had dropped the ball in relation to his studies in 2018 as a result of his family circumstances. However, as Mr McNab pointed out, at the same time the plaintiff continued to work through 2018 earning approximately $38,000. Mr McNab contended that the supposed evidentiary worth of the deterioration in the plaintiff’s academic record warranted moderation when regard is had to the fact that the plaintiff’s earnings had not decreased in 2018.
188Mr McNab urged me to be satisfied that there is a lack of evidence to conclude that the plaintiff’s family dysfunction from 2018 was a cause of the plaintiff’s mental disorder. Mr McNab submitted that there is an absence of evidence of any attendance by the plaintiff on any doctor before the transport accident, or of treatment for any mental health issue, and obviously enough, no reported suicidal ideation or the like disturbances related by the plaintiff and not meaningfully challenged.

Analysis and Findings
189The primary issue to be resolved in this proceeding is the identification of ongoing psychiatric injury and impairment consequences of the transport accident on the plaintiff, who has had other life stressors occurring prior to and subsequent to the transport accident.
190The relevant legal principles are well-known. The plaintiff must establish that the transport accident was a cause of his psychiatric injury.[109] Next, he must identify the impairment consequences referable to the identified compensable psychiatric injury, and establish that such consequences are ‘serious’, in the sense of ‘severe’.[110] Also, in an assessment of whether the identified compensable injury is ‘serious’, it is impermissible to ask if the total condition from which the plaintiff suffers is ‘serious’ and to then work backwards to determine that the identified injury is ‘serious’ because of the overall condition.[111] In an application such as this under sub-paragraph (c) of the definition of serious injury, it is not enough for a plaintiff to prove that the transport accident was a contributing factor, among other factors, to his current psychiatric condition. Rather, a plaintiff must prove that the condition that results from the transport accident itself satisfies the statutory definition.[112] I must be satisfied that the plaintiff has a severe psychological impairment that was caused by the transport accident.
[109]     SkyeTaylor v Transport Accident Commission [2022] VSCA 269.
[110]Transport Accident Commission v Maria Katanas [2017] HCA 32.
[111]      Rowe v TAC [2017] VSCA 377, [82]-[86].
[112]Ibid [82]– [83],[86] (Osborn, Priest and Beach JJA); Lexa v Transport Accident Commission [2019] VSCA 123, [59] (Kyrou, Kaye and Emerton JJA).
191The defendant submitted that the plaintiff’s evidence that he suffers from a severe psychological impairment is unreliable, because of his failure to refer to the family rupture occasioned by his father’s conduct in the psychiatric reporting referred to and relied on by him.
192The defendant did not claim that the plaintiff was dishonest but rather that his emphasis on the transport accident, and the assertion that the family issue had resolved as an issue affecting his mental wellbeing by the time of the transport accident, was at least unreliable, and as well, that an acceptance that it had resolved depended entirely on the plaintiff’s say so, and without the benefit of the opinion of those who had assessed the plaintiff’s wellbeing having been made privy to those events in order to enable them to make comment.
193My assessment of the plaintiff in the witness box was of a man who appeared to me to be carrying with him considerable psychological affect but that state of affairs of itself cannot answer the primary question in issue.
194I agree with Mr McNab that the plaintiff made appropriate concessions. I consider that the plaintiff was frank about the sense of shame and shock he experienced when he became aware that his father had a second and secret family, and forthcoming of its effect on his frame of mind, and his application to study in 2018.
195I have paid careful attention to Mr Moulds’ submissions that the reporting by the plaintiff is unsatisfactory, because it is incomplete due to his omission to a number of examiners to the fact of the family scandal. Almost all of the reporting is incomplete on that history. However, despite that failure, the expert opinions are not entirely unhelpful. Some of the reporting identifies the transport accident injury as the cause of the mental disorder and of that impairment affecting the plaintiff in his everyday functioning. However, had the plaintiff disclosed the matter pertaining to his father, and had he disclosed the anguish and shame and effect the revelation had on him in its aftermath, then those who examined the plaintiff for reporting purposes would have been able to opine if it was the cause of his mental condition, such that he would not have developed the injury without it, or whether the effects on him of it had resolved by May 2019, such that the transport accident injury alone accounted for the injury and the consequences that are relied on as being severe.
196At first blush the defendant’s submission is attractive. There is no shortage of entreaties in Court decisions of the importance of the provision by a plaintiff of accurate histories to those who are charged with examining a plaintiff and offering opinions as to the origin of and causes of a presenting condition or conditions. Sometimes the omissions in histories occur because of a deliberate decision by a plaintiff to avoid the disclosure of other “causes” or “contributors” to their mental or physical state. I am not satisfied that is so in this instance. Here I am satisfied that the absence of reference to it is because the plaintiff held the genuine belief that he had addressed the family dynamic relating to his father, and had determined to move on from it after thrashing it out at his sister’s wedding in 2019, and before the transport accident. His omission was not intended or designed to obfuscate.
197Unquestionably, the circumstances that came to light concerning the plaintiff’s father were very upsetting for him. He acknowledged that it adversely affected his studies in the 2018 academic year. But by the same token, the controversy did not interfere with his work or earnings based on the evidence. Neither did the revelation bring with it a need by him for medication, or counselling, or treatment of any kind, and these are matters that stand in stark contrast to the plaintiff’s response following the trauma of the transport accident. Neither did it bring suicidal ideation as followed in the wake of the deterioration of the plaintiff’s mental state since the accident.
198Mr Moulds contended that there is a dubiousness with the plaintiff’s efforts at front loading the cause of his injury as the transport accident, and him not taking account of his pre-accident emotional state as a contribution to it.
199Mr Moulds argued that the defendant’s defence to the question of causation, depends on the view that is formed about the plaintiff’s academic record. He submitted that:
Let's put it favourably to the plaintiff. His evidence is that it was effectively resolved in February 2019 and the accident is in May. So one needs to look very carefully, your Honour, at that 18-month-odd period or a bit more than that, between February 2018 and the day of the accident in May 2019. There's not much around. All we can go by, your Honour, is really the academic transcript and the cross-examination of the plaintiff about the academic transcript.[113]
[113]      T 65, L 5-14.
200Although in the course of the cross-examination about the plaintiff’s academic record, there was a good amount of to and fro between the plaintiff and Mr Moulds, I prefer and accept the plaintiff’s evidence that after having come to a resolution with his father and prior to the transport accident in 2019 that impacted his capacity to study, including sitting an examination, he had turned the corner.
201In final address, Mr Moulds perhaps best summed up the defendant’s position in this way:
We say, your Honour, that's one layperson's evidence who has a direct incentive to say these things about an incident that occurred of momentous proportions to him years ago that he is now giving evidence about, having not spoken to any treating doctors about it at all. [114]
[114]      T 64, L 19-24.
202I do not think that the defendant’s submission can be adopted as an absolute proposition. Although her report came later than others, Dr Krapivensky obtained an account of the earlier emotional upset, and Dr Serry having then been advised of the same, was asked to offer his further opinion. Hence I do have expressions about the effect of the same as opposed to reliance only on the plaintiff and, as well, I have other objective features that portray the plaintiff before the accident and since covering such matters as his application to work and study, his post-accident need for treatment and medications that was not a feature of his life even in the midst of the family upset.
203Dr Krapivensky reported that:
He told me that in 2018 there were significant family issues which affected his study… Mr Rajput found out about this in early 2018 when his uncle told him about his father's second family and his half siblings… He also told me that in the aftermath of this event he effectively became the head of the family being the eldest (and a son) of two children with a younger sister. He told me that his family was ‘okay’ financially but everyone was reeling from the shock.
Mr Rajput’s family situation is further complicated by the fact that he had to convince his parents and had to put up a long fight for their approval for him to come to Melbourne rather than stay in Punjab and possibly taking over the family business which was a garage and workshop. In the end his parents agreed to pay for first semester and his ticket and he was pretty much supporting himself since coming to Australia as described.
…

On 3^rd May 2019, he was involved in a motor vehicle accident in which he was a pedestrian hit by a car and he continues to have symptoms of traumatisation relevant to that. However, significantly his reported dreams and nightmares are no longer of the accident but they are actually of committing suicide in front of his family.
…

After the accident in 2019, his already fragile mental state was significantly aggravated and he developed mood disorder which was diagnosed as adjustment disorder with anxiety and depressed mood and features of traumatisation as well as alcohol use disorder.
…

There is no doubt that the motor vehicle accident was a cause of aggravation of his underlying fragile mental state. However, this has since been replaced by further significant events in his life as described.[115]
[115]      Exhibit D2, DCB 31-32, 34-35.
204I am not persuaded by Dr Krapivensky’s opinion that at the time of the transport accident the plaintiff was suffering from an already fragile mental state. Shamed, embarrassed, and even, as the plaintiff accepted, devastated and disrupted in his studies following the family revelation by all means, but I do not accept that at the date of the transport accident, the plaintiff had a fragile mental state. Neither am I satisfied of the basis on which Dr Krapivensky determined that the contribution of the transport accident to the fragile mental state “has since been replaced by further significant events in his life as described.”[116] In particular, there is no analysis of how, or when, or what, of these other events replaced the trauma of the transport accident.
[116]      Exhibit D2, DCB 35.
205I prefer the plaintiff’s account that he confronted his father and an accord and an acceptance was reached between them and the plaintiff determined to get on with his life. I agree with Mr McNab, that the reference by Dr Krapivensky to the situation with the plaintiff’s father as something that he was “still dealing with” and he had effectively become the head of the family,[117] is a statement of fact, but I do not accept that is should be elevated to have the status of a cause of injury, or that the transport accident had been replaced by this or other events as the driver of the plaintiff’s mental state.
[117]      Exhibit D2, DCB 31.
206The plaintiff determined to return to his studies in 2019 and he had maintained his work ethic throughout the family disruption. Although the plaintiff’s return to his academic pursuits after the resolution of the matter with his father, and prior to the accident in May 2019, was not such as to suggest that he was on course for first class honours, that is not the test. I am satisfied that the plaintiff was, as he said, on the turn for the better from the parlous academic year that was wasted in 2018, until the transport accident occurred in May 2019.
207I have taken into account that because of the plaintiff not making the disclosure concerning his father, that I am excluded from having the benefit of the insights of some experts who examined him of that fact as a cause of his injury such that without it, he would not have developed the condition from which he suffers. The question, therefore, seems to me to be, if the omission in reporting necessarily excludes my ability to form a proper decision on the question, having regard to such other evidence that I have before me. I have had particular regard to the proposition that a “the opinion of any particular expert opinion in a case like the present is only as good as the underlying history upon which it is based”.[118] Having assessed the entirety of the evidence, and for the reasons that I have endeavoured to express, I am satisfied that the plaintiff has discharged his burden of proof and my finding is not precluded because of the omissions of the plaintiff’s 2018 family revelation to a number of those whom he saw.
[118]      Rowe v TAC [2017] VSCA 377, [89].
208I am satisfied the transport accident amounted to a new and independent cause of the onset of the plaintiff’s psychological injury and of the impairment consequences relied upon. I do not assess it as, for example some minor contribution to an already existing mental condition the sum total of which condition is only as a result serious. The other matters of the confusion about his visa extension and loss of licence were addressed by the plaintiff. The plaintiff said he managed the period of suspension of driving by the use of public transport and although he has been stranded in a foreign land, he has managed to form a relationship.
209Contrary to the primary contention of the defendant, after a consideration of the whole of the evidence, I am satisfied that the plaintiff has suffered “severe” impairment consequences from the compensable transport injury. I adopt and accept the account of the impositions that beset the plaintiff and I have earlier set out. There was no meaningful challenge to their manifestation in the plaintiff’s life.
210On the question of whether the plaintiff’s condition is long term, I am satisfied that his psychological impairment is one that is not easily treated. I note that the plaintiff was in receipt of treatment and medications prior to travelling to the United States and despite the same, he continued to experience symptomology that included terrifying nightmares of the accident and of him engaging in self-harm, and the same beset him regularly despite treatment and since he has been untreated. I am not dissuaded from finding that the plaintiff suffers a severe long-term mental or behavioural disturbance or disorder because of the lack of treatment that the plaintiff can access. The lack of a universal health care system such as exists in Australia but that is an alien concept in the United States, although only anecdotally canvassed in the hearing and not the subject of evidence, is I venture to say, one that is broadly understood, and it accords with the plaintiff’s evidence of his encounters with it, and of his unsuccessful endeavours to connect with medical care whilst he has been domiciled there.
211Although there is a possibility that the plaintiff may be able to obtain psychological help in the United States at a future time, or resume treatment in the event he was to return to Australia, and re-engage with professional care and hopefully reduce his risk him of self-harm, I am not satisfied that the evidence should lead me to find that such reductions if they eventuated, would be of such an order as to ameliorate the balance of the consequences from which the plaintiff is suffering, such that I should be satisfied that his psychological impairment cannot be said to be severe and long-term.
Consequences
212I do not think the plaintiff has much of a retained capacity for day-to-day activity.
213Although I appreciate Mr Moulds’ submission that the plaintiff has been capable enough to take on the responsibilities of marriage and of being a stepfather, just what those responsibilities entail were not the subject of much evidence and the impression I gained from the plaintiff’s answers to matters put to him is that his wife does the heavy lifting, which evidence struck me as applying literally as well as figuratively. Perhaps an affidavit made by the plaintiff’s wife could have shed specific detail on the issue, but the absence of the same by her, has not prevented me from making findings based on the plaintiff’s account that I accept and seems to me to be very consistent with his day to life described elsewhere in the evidence. The fact of the marriage did not change, for example, the opinion expressed by Dr Serry.

214Having excluded the plaintiff's family dynamic and by preferring the plaintiff’s evidence that he had effectively had it out with his father, and came to an acceptance of those actions, and then made his own decision that he needed to get on with his life, and because of the complete absence of any earlier manifestation of a disorder as opposed to an understandable and significant upset, then I am left with a diagnosis of what is an extreme psychiatric disorder with corresponding symptomatology and presentation that I find has been caused by the transport accident and not any other stressor.
215As part of the consequences of his transport injury the plaintiff suffers a pecuniary disadvantage and because of the severe disorder he has I consider he would be precluded from work even if he was permitted to do so under American law but also if he was resident in Australia.
216I am satisfied that the plaintiff’s injury is very considerable.
217The plaintiff is entitled to the relief sought. I will hear the parties on the form of final orders.

[2024] VCC 304

20 March 2024