Salma v Transport Accident Commission
[2024] VCC 2014
•17 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-01497
| OMRAN SALMA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2024 | |
DATE OF JUDGMENT: | 17 December 2024 | |
CASE MAY BE CITED AS: | Salma v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2014 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – severe mental condition – whether condition long term – lack of treatment by psychiatrist
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Tavares v Tavares (2003) 6 VR 577; Humphries and Anor v Poljak [1992] 2 VR 129; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; Transport Accident Commission v Katanas [2017] HCA 32
Judgment: Leave granted to commence common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti KC with Ms K L Bradey | National Compensation Lawyers |
| For the Defendant | Mr J Valiotis with Ms S Fernando | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1On 30 June 2021, the plaintiff, Omran Salma, witnessed a fatal transport accident at Melbourne Airport. Mr Salma was between 30 and 50 metres away from the accident, which involved a passenger vehicle colliding with a trailer on a truck.
2In the course of his duties as a security manager at the Airport, Mr Salma then coordinated the emergency response, including repeatedly watching CCTV footage of the accident over many hours.
3Mr Salma was very distressed by what he had seen. When he consulted his treating general practitioner, Dr Syed Hussain, on 6 July 2021, he met the criteria for a Major Depressive Disorder. Although Mr Salma returned to work with a physical clearance, he ceased work on 28 August 2021 due to his psychological condition and has not worked since.
4By his application filed on 21 March 2024, Mr Salma seeks leave pursuant to s93 of the Transport Accident Act 1986 (“Act”) to commence proceedings to recover damages with respect to injury suffered as a result of the transport accident. The injury he relies upon is a severe long-term mental or severe long-term behavioural disturbance or disorder.[1]
[1]Section 93(17) of the Act.
5The application followed the usual course, in that Mr Salma gave evidence, adopted his two affidavits sworn 10 July 2023 and 3 June 2024, and was cross-examined. The parties tendered a number of documents.
6At the conclusion of the hearing, the Transport Accident Commission (“the TAC”) made a number of concessions as follows:[2]
(a) Mr Salma did not suffer from any pre-existing psychiatric condition;
(b) the transport accident caused his mental condition of a Major Depressive Disorder;[3]
(c) the consequences of that condition, as at the date of the hearing, satisfy the definition of “serious injury”. In other words, his psychiatric injury is “severe”;[4] and
(d) Mr Salma’s credit was not in issue.[5]
[2] Transcript (“T”) 59.
[3] T54 and T59.
[4] Mobilio v Balliotis [1998] 3 VR 833; T61.
[5] T60.
7The issue for determination in the application is whether Mr Salma’s severe mental disorder is “long term”. The TAC submits that, because of a lack of treatment, his condition is not stable.
8For the reasons that follow, I am satisfied that Mr Salma’s mental condition is both severe and long term and accordingly I grant him leave to commence proceedings.
Background
9Mr Salma was born in June 1992 in Australia. He is married to his wife, Niveen, with whom he has a son and daughter, with a third child on the way. Ms Salma was diagnosed with multiple sclerosis (“MS”) in early 2021, which was a stressful period for them, before her symptoms were controlled with various treatments. Mr Salma’s evidence included that his wife has been well since around June 2021.
10After completing Year 12 at Ilim College, Mr Salma worked in various construction and sheet-metal engineering jobs, then as a furniture-delivery truckdriver.
11Mr Salma completed Certificates II and III in Security Operations, then commenced working as a security guard with TGS at Melbourne Airport on or about January 2017. TGS merged with Wilson Security Pty Ltd on or about 31 March 2017.
12Mr Salma worked full-time shift work, approximately eighty hours a fortnight. He enjoyed his work and progressed quickly to the role of shift/duty manager in 2018.[6]
[6]Affidavit of the plaintiff sworn 10 July 2023, paragraph[ [7] at Plaintiff’s Amended Court Book (“PCB”) 7.
The transport accident and its aftermath
13Mr Salma’s account of the transport accident is set out in his first affidavit:
“At that time, I was outside of the office, having a smoke on changeover, when I was an eyewitness to the fatal vehicle collision. At the time, I was with my duty manager, the changeover supervisor and another colleague. I was facing the traffic as I was having a smoke. I saw a flash of something white disappear into a truck. The truck came to a stop, and I remember the horrible, gut-wrenching sound of the truck colliding with the white thing at the time.
It was my job as the Landside Operation Control Room Officer to go back to the office to write up the fatal transport accident. I therefore made notes about what I had seen. The duty manager took those notes and used them as the basis of an Incident Report that he prepared.
It was also my job to co-ordinate the emergency response to the fatal transport accident. I stayed at work beyond the end of my shift to do so. I called various organisations, such as Vic Roads, Victoria Police, and the Melbourne Airport Communications Centre. I closed down the road on which the fatal transport accident had occurred. I spoke with a staff member at Melbourne Airport. I contacted other Wilson Security staff members to ask them to come in to work early to help deal with the aftermath of [the] fatal transport accident. All in all, it felt like I was involved in organising the response to the fatal transport accident for about three to four hours.
Both Victoria Police & the Australian Federal Police asked me to provide further details about the fatal transport accident, together with timeframes, and so I had to review the CCTV footage to get the information they wanted.
Vic Roads and Melbourne Airport Communications made similar requests of me, which meant I had to watch the footage again and again to get the information they required as well. I had to share information about the fatal transport accident, including the CCTV footage, with the duty manager. There was no way to do so using the system in place in the control room, so I had to record the footage on my phone and then send it from my phone to my duty manager. This meant I had to watch the fatal transport accident yet again.
I was also in charge of the CCTV footage, which meant that it was my job to extract the footage, extract the exact timeframes, ensure that the CCTV had a proper resolution, save it and then review it to see if it saved properly. This meant that I had to watch the CCTV again, many, many times.
Not only did I personally have to review the CCTV as set out above, but other staff members in the office had access to the CCTV software. They were watching the CCTV in my presence, and I could see them playing in from where I was working.
I found witnessing the fatal transport accident and having to re-watch it many times to be extremely upsetting and distressing, and I found myself crying at times whilst co-ordinating the response to the fatal transport accident.
The day after the fatal vehicle collision I woke up with a massive headache.”[7]
[7] Affidavit of the plaintiff sworn 10 July 2023, paragraphs[18]-[26] at PCB 9-10.
14Following the accident, Mr Salma was told by Wilson Security that he needed a medical certificate, clearing him to return to work. On 6 July 2021, he saw his treating general practitioner at the time, Dr Hussain, who provided a clearance certificate, stating that Mr Salma was physically fit to return to work.
15Affected by guilt, anxiety and depression, Mr Salma struggled when he returned to work, vomiting every morning.
16Experiencing flashbacks to the transport accident, panic attacks and suicidal ideation, he ceased work on 28 August 2021.
17Mr Salma submitted a claim with Wilson Security for a mental injury resulting from the transport accident, which was accepted on a limited basis. All of his treatment has been self-funded.
18Dr Hussain referred Mr Salma to a psychiatrist on 4 August 2021. The referral letter stated that Mr Salma presented with a six-week history of depressive symptoms following the workplace incident; that he had been having flashbacks, nightmares, reduced sleep, intrusive thoughts, reduced function and avoidant behaviour, and that his symptoms were not related to other illnesses.[8] In Dr Hussain’s opinion, Mr Salma had suffered a significant mental health injury as a result of his employment.[9]
[8] PCB 42.
[9] Report of Dr Hussain dated 19 September 2022 at PCB 57.
19In February 2022, Mr Salma was prescribed Fluoxetine, however, he ceased taking this medication in mid-July 2022 due to side effects, including increased suicidal ideation and feeling lethargic.[10]
[10]T33, Line (“L”) 21-28; PACB 93, history to Dr Epstein at PCB 93.
20On 18 February 2022, Mr Salma commenced his ongoing treatment with psychologist Ms Edanur Baskocak,[11] who diagnosed Post-Traumatic Stress Disorder (“PTSD”) in 2022;[12] PTSD and a Major Depressive Disorder in April 2023,[13] with a further deterioration in June 2023 involving reported paranoia, delusions and auditory hallucinations.[14]
[11] PCB 52.
[12] PCB 53.
[13] PCB 61.
[14] PCB 63.
21In her most recent report, Ms Baskocak states her opinion that Mr Salma meets the diagnostic criteria for PTSD, Major Depressive Disorder, Generalised Anxiety Disorder and paranoid thoughts.[15] Despite his “severe symptoms”, she felt his strong familial support and willingness to engage in therapeutic interventions were positive indicators for recovery, noting the need to manage his financial stress due to not working and the birth of his second child needed to be managed concurrently. She recommended “possible consideration of medication in consultation with a psychiatrist” to manage his paranoia and hallucination.
[15] PCB 82.
22Mr Salma’s current general practitioner, Dr Abdulaziz Ali, diagnosed a Major Depressive Disorder, Generalised Anxiety Disorder and PTSD.[16] Dr Ali is “cautiously optimistic” regarding his prognosis.
[16] Report dated 27 August 2024 at PCB 84.
23Mr Salma’s current treatment regime includes regular attendances on his current treating general practitioner, Dr Ali, and counselling every two or so months with his psychologist. He takes CBD oil, Ashwagandha and various other homeopathic and natural remedies to curb his anxiety and depression in order to avoid the side effects associated with psychotropic medication.[17]
[17]Affidavit of the plaintiff sworn 3 June 2024, paragraph [12] at PCB 28-29.
24Despite Dr Hussain’s referral to another psychiatrist later in 2022, Mr Salma did not attend due to his financial situation, and because he did not want to take psychotropic medication.
25Mr Salma’s current general practitioner, Dr Ali, has not apparently recommended he see a psychiatrist.
26Mr Salma was robustly cross-examined in relation to his mental health condition. Mr Valiotis established that his symptoms were worsening, including auditory hallucinations; and that although he had been referred for psychiatric treatment, he had not received that treatment.
27Mr Salma stated he had not received this treatment because:
(a) his general practitioner prescribed Fluoxetine, and he had a gross reaction to it involving suicidal ideation. On the basis of that experience, he was not prepared to take further psychotropic medication;
(b) he could not afford psychiatric treatment; and
(c) he was not ready to undergo such treatment in any event as he was comfortable with his current regime of treatment. [18]
[18]T33.
Medico-legal evidence
28Psychiatrist, Dr Michael Epstein, examined Mr Salma in July 2022 and July 2024. As at 2022, Dr Epstein diagnosed:
“… a chronic Post Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the accident on 30 June 2021, distress with reminders of it, increased concerns with regard to safety for himself and his family, hypervigilance, emotional withdrawal and a sense of bleakness. He has also had panic attacks.”[19]
[19]Report of Dr Epstein dated 21 July 2022 at PCB 98.
29In his opinion, the combination of these, together with his perception that Mr Salma was not treated well by his employer, led on to the development of a Major Depressive Disorder with passive suicidal ideation.
30In Dr Epstein’s view, Mr Salma may benefit from psychiatric treatment and possibly a period of hospitalisation to “sort out what medication would be beneficial to him”.[20] The condition was not then stable due to the recommendation for further treatment.
[20] Report of Dr Epstein dated 21 July 2022 at PCB 98.
31Following his re-examination in July 2024, Dr Epstein stated Mr Salma’s affect remained restricted, and that he appeared “even more depressed and anxious during the course of this interview than when he was last seen”.[21] In confirming his previous diagnosis and need for treatment – consistent with the opinions of the treating practitioners of a worsening picture – Dr Epstein set out his opinion that Mr Salma had developed a Major Depressive Disorder with suicidal ideation, associated with some psychotic features, including auditory hallucinations that are non-persecutory and paranoid delusions. In his view:
“At present there appears to have been a deterioration in his condition since he was last seen and this situation may get worse unless he does receive appropriate psychiatric treatment. His prognosis for improvement is now poor. His quality-of-life has diminished markedly effecting (sic) his work capacity, his relationships and his recreational enjoyment and there is little prospect of any improvement in the foreseeable future. He has no current work capacity either in his preinjury employment or any other employment and this situation is unlikely to change in the absence of appropriate treatment. … .”[22]
[21] Report of Dr Epstein dated 16 July 2024 at PCB 114.
[22] Report of Dr Epstein dated 16 July 2024 at PCB 114.
32Dr Epstein supported ongoing psychological treatment.[23]
[23] Report of Dr Epstein dated 17 January 2023 at PCB 104.
33Although the TAC tendered the reports of Associate Professor George Mendelson and Associate Professor Peter Doherty, they were not relied upon in relation to causation, which was not in issue in this application.
34Associate Professor Mendelson’s report from 2022 stated there was no diagnosable psychiatric condition, however the TAC conceded this opinion had limited utility, as it was not up to date.[24]
[24] T73.
35Associate Professor Doherty is of the view that:
“… there is a diagnosable psychiatric condition. The level of symptomatology, especially persistent anxiety, change to demeanour, daily activities, and social activities, are significant and warrant the making of a psychiatric diagnosis. There are persistent anxiety-laden symptoms and some panicky feelings as well.”[25]
[25]Report of Associate Professor Doherty dated 4 October 2024, Defendant’s Court Book (“DCB”) 14 and DCB 4.
36In his opinion, however, the transport accident did not directly cause Mr Salma’s Major Depressive Disorder and is not a significant contributor to persistent reported symptoms. He is critical of Mr Salma’s treating doctors, and says, “… considerable clinical effects should have been made in enhancing his coping strategies”.[26]
[26] DCB 18.
37Associate Professor Doherty does not express any view as to the long-term nature of Mr Salma’s condition, merely stating it has not resolved and he has “problems in returning to work”.[27] Notwithstanding his opinion that a Major Depressive Disorder is treatable, Associate Professor Doherty reports that Mr Salma’s prognosis “should be considered guarded”.[28]
[27] DCB 19.
[28] DCB 14.
38Associate Professor Doherty expresses no view about the prognosis for PTSD, because Mr Salma’s:
“… involvement in the transport accident was at such a distance that his actual involvement in the horror of the transport accident is negligible or non-existent and insufficient to meet the essential criteria for PTSD. … .”[29]
[29] DCB 14.
39Associate Professor Doherty does not recognise the work-related exposure to the CCTV images.
40I accept Mr Salma’s evidence as to the nature and extent of his exposure to trauma, including the work-related exposure to the CCTV images, and therefore prefer the opinion of Dr Epstein and Dr Hussain that Mr Salma suffers from PTSD.[30]
[30]See Dr Hussain’s report dated 23 June 2022 at PCB 55 and Dr Epstein’s report dated 31 July 2022 at PCB 98.
What is the meaning of the term “long term”?
41Section 93(17) of the Act provides:
“‘serious injury’ means—
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; … .”
42The application will be determined on the basis of the following principles:
(a) an injury is “permanent” if it will probably persist and there will be no significant improvement over time;[31]
(b) in accordance with the Act, Mr Salma’s psychological condition must be “long term”;
(c) although little guidance is available on the meaning of a “long-term” injury, an appropriate synonym is “far reaching”;[32]
(d) no particular number of years as constituting the period which must pass before an impairment can be regarded as “long term”;[33]
(e) the Court must assess all the evidence and consider whether Mr Salma has established that the injury will likely remain a serious injury through the foreseeable future. This may take into account evidence about the likelihood of success of further treatment, and the likely extent of any improvement the treatment may produce;[34] and
(f) all of the relevant circumstances must be considered.
[31] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at 633, paragraph [19].
[32] Tavares v Tavares (2003) 6 VR 577 at 596, paragraph [71].
[33] Humphries and Anor v Poljak[1992] 2 VR 129 at 154.
[34] Applying Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139 at paragraphs [55]-[61].
43The question is: will there be any significant improvement to his condition over time, such that its consequences will not be “far reaching”?
44The answer to this question is no. I am satisfied that the injury is long term.
45Mr Salma was an experienced security guard who had attained a number of promotions at work from security guard, to taxi-rank supervisor, to general supervisor, to acting manager. I find he derived significant satisfaction from his work. There is no explanation as to why Mr Salma, who was supporting his wife and two children with a third on the way, would not work, other than because of a severe mental condition.
46The evidence of Dr Epstein, Dr Ali and Ms Baskocak establishes that, as at the date of the hearing, Mr Salma's psychiatric injury is persisting and has deteriorated over time.
47There is no dispute Mr Salma is permanently unfit to return to work in his pre-injury employment.
48There is evidence that, without treatment, there will be no improvement, and further deterioration is likely. There is no evidence as to the level of any likely improvement if Mr Salma engaged in treatment with a psychiatrist, or over what period of time.
49I accept Dr Epstein’s opinion in terms of prognosis:
“At present there appears to have been a deterioration in his condition since he was last seen and this situation may get worse unless he does receive appropriate psychiatric treatment. His prognosis for improvement is now poor. … .”[35]
[35] PCB 116.
50I accept Mr Salma’s evidence that his previous experience of taking Fluoxetine means he will not, due to its side effects, countenance psychotropic medication.
51During cross-examination, Mr Salma stated he was reluctant to be hospitalised for his deteriorating mental health as he could not imagine himself being strapped to a hospital bed.[36] I accept his evidence he is not prepared to be admitted to an inpatient psychiatric hospital on a voluntary basis; and there is no evidence that he should be admitted on an involuntary basis.
[36]T38, L4-6.
52Mr Salma’s condition has persisted for over three years. He has engaged in treatment including:
(a) regular treatment from his general practitioner;
(b) continuous treatment from his psychologist since February 2022, initially every two or three weeks, now every two months or so;
(c) a trial of Fluoxetine from February to July 2022, prescribed by Dr Hussain; and
(d) self-treatment involving a suite of homeopathic, over-the-counter and other alternative therapies.
53While there is evidence there are positive indicators for recovery, and his general practitioner is cautiously optimistic, these are ambiguous statements and inconsistent with the evidence as a whole. His strong family support and engagement in therapy has been evident from the outset, and yet not only has there been no improvement, Mr Salma’s condition has deteriorated over time.
54Mr Salma will never return to his pre-injury employment and this, on its own, supports a finding of severe consequence. I make this finding even if, as Dr Epstein commented, some type of work might possibly be available in the future. The TAC conceded that not working is a severe consequence for Mr Salma.[37]
[37] T78.
55Mr Valiotis, for the TAC, submitted:
(a) Mr Salma’s condition was “untreated”;
(b) Mr Salma had made zero effort since August 2021 to return to work or improve his mental condition; and
(c) he had “surrendered”.
56I reject those submissions.
57Since 28 August 2021, I find that Mr Salma has been incapacitated for his previous employment, and all forms of employment.
58The suggestion that Mr Salma is untreated is incorrect. The history of Mr Salma’s treatment is set out, for example, in Associate Professor Doherty’s report.[38] Mr Salma was diagnosed by Dr Hussain with depression within a week of the incident, and PTSD within five weeks, and referred for treatment.[39] A summary of his treatment is set out in Dr Hussain’s 2022 report[40] and Ms Baskocak’s 2024 report.[41]
[38]DCB 17.
[39]PCB 42.
[40]PCB 53.
[41]PCB 82.
59Dr Epstein’s view that Mr Salma is “essentially untreated at the moment” must, in context, be a reference to treatment by a psychiatrist. Dr Epstein’s diagnosis of chronic PTSD and a Major Depressive Disorder was based in part on Mr Salma having sought treatment for his symptoms.[42]
[42]PCB 104; see also PCB 115.
60Mr Salma conceded that, once all avenues have been explored with his psychologist, and if it is the only option, then he may see a psychiatrist in the future, but not now. Based on what is known to Mr Salma and his experience, this is not an unreasonable refusal of treatment.[43] His reluctance to undergo this treatment relates to medication. Mr Salma trialled psychotropic medication in the past, and is unlikely to agree to further medication because of the overwhelming side effects he experienced, including suicidal ideation.
[43] Fazlic v Milingimbi Community Inc (1982) 150 CLR 345.
61Associate Professor Doherty acknowledged that, “… being anxious and worried about bodily symptoms will cause … [Mr Salma] to be sensitive to the medication side effects”.[44]
[44] DCB 17.
62Although Mr Salma is not interested in prescription medication, the cannabis oil helps him and he has also tried other alternative remedies; without these, he thinks he would be worse off. Importantly, he has elected to undertake very significant treatment from a psychologist since early 2022, as set out in Ms Baskacak’s reports.
63Although one of the relevant circumstances is that Mr Salma is presently untreated by a psychiatrist, I accept that:
(a) further psychotropic medication is not an option for him; and
(b) he will need, and continue with, his current regime on a long-term basis.
64He is also on Centrelink benefits and cannot afford psychiatric treatment.
65Accepting Mr Salma’s current treatment regime is reasonable in his particular circumstances, I find Mr Salma’s psychiatric condition will have a far-reaching effect, because his symptoms, now entrenched, are unlikely to improve in the long term, and in accordance with Dr Epstein’s opinion that, without treatment, Mr Salma’s condition may deteriorate further.
66Although both parties referred me to Transport Accident Commission v Katanas,[45] that case concerned “range” and the significance of psychiatric treatment in determining the question of “serious injury”. While the High Court emphasised the correct approach in an application of this type to first identify and next bring to account all relevant circumstances personal to the claimant, and then to apply the statutory test, the issue in this case is whether Mr Salma’s presently severe condition is “long term”.
[45][2017] HCA 32.
Conclusion
67I find that Mr Salma has a severe long-term mental disturbance or disorder within the meaning of s93 of the Act and leave is granted to Mr Salma to commence a proceeding for damages.
68I will hear the parties on the question of costs.
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