Seymour v Transport Accident Commission
[2022] VCC 434
•11 March 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-19-03561
| DEAN SEYMOUR (by his Litigation Guardian ROSEMARY SEYMOUR) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 June and 23 June 2021 | |
DATE OF JUDGMENT: | 11 March 2022 | |
CASE MAY BE CITED AS: | Seymour v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 12 December 2022] | [2022] VCC 434 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – TRANSPORT ACCIDENT – LIMITATION OF ACTIONS
Catchwords: Serious injury acquired brain injury – post-traumatic stress disorder psychiatric injury – disentanglement – application extension of time – delay – prejudice to the defendant – synthesis of the applicable considerations in s23A(3) Limitation of Actions Act 1958
Legislation Cited: Transport Accident Act 1986; Limitation of Actions Act 1958, s23A; County Court Civil Procedure Rules 2018, r 15.03(4)
Cases Cited:Azzam v Commonwealth of Australian [2019] VSC 484; Humphries and Anor v Poljak [1992] 2 VR 129; Ninkovic v Pajvancek [1991] 2 VR 427; Baker v Transport Accident Commission & D’Alberto [1997] 1 VR 662; Transport Accident Commission v Garcia [2015] VSCA 225; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSCA 517; Davies v Nilsen [2015] VSC 584; Holcombe v Hunt [2018] VSC 55; WCB v Roman Catholic Trusts Corp for Diocese of Sale (No 2) [2020] VSC 639
Judgment: Order that the period within which an action may be brought be extended until 1 May 2022. Leave granted to commence proceedings for personal injury arising out of motor vehicle accident that occurred on or about 2 October 1995.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC with Ms G-J Cooper | Henry Carus & Associates |
| For the Defendant | Mr C Blanden QC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1There are two applications before me raising three distinct issues.
2First, the plaintiff makes application pursuant to s93 of the Transport Accident Act 1986 (“the TAA”) for leave to commence common law proceedings in respect of injury suffered in a motor vehicle accident that occurred on 2 October 1995 (“the MVA”).
3In this application, plaintiff’s counsel submits that, since the date of the MVA, the plaintiff has continued to be a person under a disability, such that the limitation period has not begun to run, and time has therefore not expired. In such circumstances, no extension of time pursuant to s23A of the Limitation of Actions Act 1958 (“LAA”) is necessary (s23(1) of the LAA).
4In the event that the limitation period has in fact expired, an extension of time to bring the claim is sought pursuant to separate Summons pursuant to s23A of the LAA.
5In the first application, the plaintiff alleges that he has suffered a “serious injury” pursuant to the definitions in sub-paragraphs (a), (b) and (c) of the definition contained in s93(17) of the TAA.
6The defendant submits the plaintiff is out of time in which to bring his claim on the basis that time began to run on his eighteenth birthday[1] and expired on 26 November 2004. The defendant also contends that he has not suffered a “serious injury” within the meaning of the TAA.
[1]November 1998
7On the first day of hearing, a Consent Order was made appointing the plaintiff’s mother, Rosemary Seymour, to act as his litigation guardian in this proceeding, pursuant to Order 15.03(4) of the County Court Civil Procedure Rules 2018 on the basis that the plaintiff is a person under a disability, and it is in his interest to do so.
8Despite that appointment, the defendant submits that:
“… there is no cogent evidence before the Court to support the Plaintiff’s submission that he has been under a disability since he turned 18 in November 1998 … .”[2]
[2]Defendant’s Submissions, dated 8 July 2021 at paragraph 2A.(a); see also Defendant’s Court Book (“DCB”) 133
9In particular, the defendant relies on contemporaneous medical evidence from:
(a) The Maroondah Hospital medical report dated 3 October 1995 – Emergency Department resident:
“[No] significant chest or abdominal/pelvic injury has been identified and he is in a stable condition. Neurologically intact.”[3]
[3]ibid
(b) The Alfred hospital notes dated 3 October 1995 – neurosurgery registrar – “minor head injury – CT Brain NAD.”[4]
[4]Defendant’s Submissions, dated 8 July 2021 at paragraph 2A.(b); see also DCB 141
(c) The Alfred Inpatient Progress Note dated 4 October 1995 ꟷ occupational therapy:
“He had LOC for brief period. CT brain NAD … Orientation – Fully orientated … Attention – Maintained attention over 20-minute period. Able to attend to two tasks simultaneously. Memory – immediate recall – good. Short-term – Recalled 5/6 items on list, 6/6 on second trial. Prospective – followed through on task after 50 minute delay. Episodic – good. Money management – recognition good. Difficulty noted with simple calculation (most likely premorbid). Safety and judgement – gave appropriate responses. Summary – No high Er cognitive deficits observed.”[5]
[5]Defendant’s Submissions, dated 8 July 2021 at paragraph 2A.(c); see also DCB 141
(d) Report of Dr Shane Fennessy, general practitioner, dated 15 September 1998:
“It has been my pleasure to see Mr. Seymour again recently when he came for a check up. He decided, I think at his mother[’]s urging, finally to ‘ban the bong’ and felt much better for not having used marijuana for the preceding month. On physical examination he was well, if a little overweight, his large irregular scar across his forehead was still evident, but not nearly as evident as it had been back in 1997. Mr. Seymour seemed positive in his outlook and any suggestion of permanent neurological impairment or permanent brain dysfunction was not evident. He was articulate, attentive, was responsive and normal in every regard … As far as Mr. Seymour's fractured Patella, I do not think that impairs him at all, he rides his bicycle, has begun some pre-season football training with the local football club and plans to play football next season.”[6]
(sic)
(e) Report of Mr Peter Scott, surgeon, dated 24 August 1999:
“I examined Mr. Dean Bradley Seymour, an 18 year old casually employed musician … I understand he was treated for the following injuries: (1) Mild concussion from which an apparent rapid and uneventful recovery occurred without active intervention … Since this time (leaving school in late 1996) he has worked as a house painter and decorator, as a demolition worker and as a sales person at the Footscray Fruit & Vegetable Market. He last worked 5 months ago. He hopes to pursue a course in music at a TAFE College in the year 2000 … In 1997 he played for the Olinda Bloods, an Australian Rules team in the Yarra Ranges. (He played at full forward). In 1998 he played two games for his football team until he injured his right acromioclavicular joint. He is very interested in music and he is a drummer in a band and writes music … EXAMINATION - A pleasant and communicative person. There was no detectable abnormality of the central nervous system (vision not tested) … OPINION – The claimant has made a good recovery from any right knee injury and appears to have made a substantial recovery from any associated psychosomatic problem. He still has minor problems with his facial scars. I believe the small elevated areas of the forehead scar could be improved with minor reconstructive surgery.”[7]
[6]Defendant’s Submissions, dated 8 July 2021 at paragraph 2A.(d); see also Plaintiff’s Court Book (“PCB”) 82
[7]Defendant’s Submissions, dated 8 July 2021 at paragraph 2A.(e); see also PCB 116-118
10The defendant thus submits that the contemporaneous medical evidence establishes no more than:
· The plaintiff left school as a matter of choice.
· The plaintiff sustained a very mild concussion and not a brain injury in the accident.
· After leaving school the plaintiff continued, at least initially, with normal work and activities.
· In mid-1999, he had planned to pursue a TAFE course in 2000.
11The defendant also submits the evidence demonstrates that since 1998 the plaintiff has had the capacity to engage with the legal system and other life activities. The following examples are given:
(a) On 2 May 2001, the plaintiff was placed on an Adjourned Undertaking by the Ringwood Magistrates’ Court to be of good behaviour for twelve months.[8] There is no evidence that he failed to comply with this court order;
[8]DCB 276
(b) While in custody, he had the capacity to work a full week;[9]
[9]See report of Dr Igor Jakubowicz at PCB 87
(c) While in custody in 2003, he was part of the “prison band”;[10]
[10]See report of Associate Professor Khalid at PCB 195
(d) On 10 November 2004, it was noted by the Knoxfield Medical Centre that he was working full time;[11]
(e) The plaintiff was released on parole for a period of two years. There is no evidence he breached his parole or failed to comply with the conditions;
(f) On 30 June 2006, it was noted by the Knoxfield Medical Centre that he was working full time – “brought in invoice book”;[12]
(g) The plaintiff committed various driving offences on 31 October 2007.[13] On 4 June 2008, the Ringwood Magistrates’ Court placed the plaintiff on a Community Based Order for a period of nine months with the condition that he complete fifty hours of unpaid community work over six months.[14] There is no evidence he failed to comply with this court order and perform the unpaid community work. He was in fact doing community service in February 2009;[15]
(h) On 8 September 2011, the plaintiff appeared before the Melbourne Magistrates’ Court for driving offences;[16]
(i) He last used heroin in either May 2008[17] or 2012;[18]
(j) In April/May 2013, the plaintiff was in Queensland. He had the capacity to make arrangements with his treating general practitioner in Melbourne to send Methadone prescriptions to medical practitioners in Queensland;[19]
(k) On 26 August 2013, the plaintiff attended the rooms of his treating general practitioner, Dr Robert Graeme Oliver, and obtained a medical report addressed to the Ringwood Magistrates’ Court.[20] It is reasonably assumed that this report was obtained by the plaintiff to assist him in a pending Court proceeding, in fact, the clinical note of Dr Oliver states:
“Has Court tomorrow at Ringwood. Wants a certificate relating to his hand injury, to see if he can have it adjourned. States that his lawyer advised him to have the court case adjourned for another month so that he can apply for legal aid.”[21]
[11]DCB 118
[12]DCB 114
[13]DCB 166. Extract of the Victoria Police Summary of Offence: “At approximately 4:45pm on Tuesday the 30th of October, 2007, the defendant [the Plaintiff] was driving a motor vehicle … On Jolimont Road, Forest Hill … The defendant turned left at the intersection with Longbrae Avenue at a fast rate of speed causing the tyres to screech, when he collided with a white Mazda 6 … Which was stationary and legally parked opposite the owner[’]s address. There was moderate damage to both vehicles. The defendant didn’t stop or attempt to locate the owner – instead he drove home and parked his car in the rear of his property and covered it with a tarpaulin. He did not report the collision to the nearest police station.”
[14]DCB 271
[15]PCB 87
[16]DCB 255
[17]PCB 97
[18]PCB 169
[19]DCB 121, 123-124 and PCB 105, 107-108
[20]PCB 109 and DCB 125-126
[21]DCB 126
(l) On 10 September 2013, the plaintiff appeared before the Ringwood Magistrates’ Court for driving offences;[22]
(m) On or about 25 November 2015, the plaintiff attended the rooms of his treating general practitioner, Dr Robert Graeme Oliver, and obtained a medical report addressed to the Ringwood Magistrates’ Court.[23] Again, it is reasonably assumed that this report was obtained by the plaintiff to assist him in a pending court proceeding;
(n) On 17 March 2016, the plaintiff appeared before the Ringwood Magistrates’ Court for driving offences;[24]
(o) On 20 December 2017, the plaintiff appeared in the Melbourne Magistrates’ Court for driving offences;[25]
(p) Prior to 15 February 2017, the plaintiff had the capacity to locate and engage expert personal injury lawyers to explore compensation for the injuries he sustained on an escalator at the Eastland Shopping Centre on or about 18 February 2014.[26] There is no evidence that he received any assistance (that is, from his mother or a friend) to do this;
(q) In about May 2017, the plaintiff had the capacity to lodge his own Victims of Crime compensation claim and then make enquires through the Helpline, which put him in touch with Your Lawyers, Mr Grant Hutchinson;[27]
(r) On or about 5 June 2017, the plaintiff had the capacity to engage with medical practitioners at Your Family Doctors to obtain assistance with his Victims of Crime compensation claim;[28]
(s) On or about 3 July 2017, the plaintiff had the capacity to engage with a solicitor, Shaynee Barnett, in relation to his potential VOCAT compensation claim;[29]
(t) Between 26 November 2019 and 13 January 2020, the plaintiff had the capacity to receive, understand and act on the advice he received from Arnold Thomas & Becker Lawyers. There is no evidence that he received any assistance (that is, from his mother or a friend) to do this; and
(u) Between 26 November 2019 and 13 January 2020, the plaintiff had the capacity to locate and engage Henry Carus & Associates Lawyers to act in relation to his Transport Accident Compensation claim. There is no evidence that he received any assistance (that is, from his mother or a friend) to do this.
[22]DCB 255
[23]PCB 111
[24]DCB 255
[25]DCB 235
[26]DCB 151-154
[27]DCB 100-101
[28]DCB 98-107
[29]DCB 99
12Accordingly, that although the plaintiff’s current general treating practitioner, Dr Peter Drake, certified on 17 June 2021 that he was of the opinion the plaintiff did not have the capacity to manage his legal affairs and that it was in the plaintiff’s best interest to have a litigation guardian appointed,[30] this evidence really only relates to the three last years, during which time Dr Drake had been treating the plaintiff.
[30]Exhibit “B”
13It is further submitted that no medical practitioner has undertaken the exercise of reviewing the totality of the plaintiff’s medical history to provide “a cogent opinion as to his capacity in the past from November 1998 to date”.[31]
[31]Defendant’s Submissions at paragraph [6]
14In support of the overall submission, defence counsel submitted as follows:
“In the matter of Azzam v Commonwealth of Australian [2019] VSC 484, the Plaintiff claimed that the limitation period had been suspended from the time he suffered psychiatric injuries in immigration detention and thereafter due to his legal incapacity. The Honourable Justice Zammit rejected this submission and stated at paragraphs 102 to 103:
‘The starting point is that the plaintiff must adduce evidence that he has been under a legal incapacity for a continuous period of 28 days or more since the time of the alleged injuries. In practical terms the plaintiff must establish, on the balance of probabilities, that for 28 days or more he has been incapable of, or substantially impeded in, the management of his affairs in relation to the cause of action.
This is a stringent test and difficult to make good. The fact that a person has diminished capacity by reason of a physical or mental condition will not be enough. Section 27J directs attention to either a complete absence of ability, i.e. an incapacity, or else a very significant disability, i.e. a substantial impediment, both of which must make themselves felt legally. To use the language of Hoeben J in Plowman, the provision’s focus is a ‘highly vulnerable’ group of persons.’
(Emphasis added).”[32]
[32]Defendant’s Submissions at paragraph [7]
15Accordingly, the defendant submits that the medical evidence fails to demonstrate that the plaintiff was under a disability, being of an “unsound mind” from 27 November 1998 to 17 June 2021.
16In my view, the submission by the defendant should be accepted, and I consider that such a finding would not be inconsistent with the plaintiff establishing that, at the date of the hearing, he is suffering from a serious injury as a result of a motor vehicle accident, as long as he can demonstrate the chain of causation to the requisite standard, being the balance of probabilities.
Has the Plaintiff suffered a serious injury?
17The plaintiff relies upon the following injuries in support of his application:
(a) closed-head injury leading to cognitive impairment;
(b) facial scarring and disfigurement; and
(c) Persistent Depressive Disorder and Substance Abuse Disorder.
Sub-paragraph (a) closed head injury leading to cognitive impairment
18In his first affidavit, sworn 27 May 2021, the plaintiff exhibited a copy of the Police Collision Report[33]and his statement made to the police at the time of the MVA.[34] In the first exhibit, a name and address, and date of birth of the driver, was recorded, together with the Particulars relating to the plaintiff, with the addition “Seat Belt Not Worn”[35] and a notation that the level of damage to the vehicle was “Extensive - Unrepairable”.
[33]DS-1
[34]DS-2
[35]PCB 17
19In the second exhibit, which was signed by the plaintiff on 4 January 1996, he stated, inter alia:
“… I was sitting in the front passenger side of a Holden Torana … I did not have my seat belt on at the time. I wasn’t wearing it because it was jammed under the seat so I couldn’t get to it … I was trying to get to my seatbelt because I was a bit worried about his driving. As we were driving along Dickins road, I looked at the speedometer and saw that he was going 100 KPH. At that time my sister Jacqui told Brett to slow down but he didn’t … When we left the shops, Brett was going very fast and that scared me but when we hit Dickens Road we were flying, that’s my words, flying. I was very scared. I was in fear of my life.
As a result of the accident I received an 8 cm cut to my forehead, an 8 cm cut to my chin, a fractured right kneecap and my left eye has lost some vision. In all I received 61 stitches.”[36]
[36]PCB 20
20Also tendered in evidence were photographs of the plaintiff taken shortly after the accident,[37] which, to the layperson, suggest significant trauma to his head.
[37]PCB 52-53
21Further, the referral letter from the Maroondah Hospital to The Alfred hospital, dated 3 October 1995, states:
“Thank you for admitting Dean who sustained mostly soft tissue injuries to his face and neck in a high speed MCA–
His problems are:
…
5 concussion
…
Jeremy L Freeman
E.D. Resident.”[38]
[38]PCB 77
22Further, in the report of the general practitioner, Dr Shane Fennessy, dated 15 September 1998, he recorded that he first saw the plaintiff in relation to his “motor bike accident of 2nd October 1995”[39] on 29 January 1997. He stated:
“… At that time he was, to say the least, a morose, withdrawn boy, who had a livid full length scar across his forehead, that was jagged and unsightly and had problems associated with his left eye.”[40]
[39]PCB 81
[40]PCB 81
23Dr Fennessy also stated:
“Mr. Seymour also gave a history that was consistent with him having had a significant closed head injury at the time, with changes in mood and difficulties in relationships and difficulties in progressing normally with his schooling. He was referred to Head Start, an organisation to help with the resolution of closed head injuries and the psychological and social affects (sic) that they have and was also referred to Dr. David Mackey, an Ophthalmologist at Blackburn, to reassess his visual problem.
At that time, 15 months after the accident, Mr. Seymour's problems were predominantly the psycho-social problems occasioned in part by head injuries and the disfigurement caused by the accident. He [also] admitted at that time to fairly heavy and regular marijuana use, which he conceded probably did not help his mood overall.”[41]
[41]PCB 82
24Thereafter, Dr Fennessy stated he was more optimistic, having seen the plaintiff again recently. He stated:
“It has been my pleasure to see Mr. Seymour again recently when he came for a checkup. He decided, I think at his mother[’]s urging, finally to ‘ban the bong’ and felt much better for not having used marijuana for the preceding month. On physical examination he was well, if a little overweight, his large irregular scar across his forehead was still evident, but not nearly as evident as it had been back in 1997. Mr. Seymour seemed positive in his outlook and any suggestion of permanent neurological impairment or permanent brain dysfunction was not evident. He was articulate, attentive, was responsive and normal in every regard.”[42]
(sic)
[42]PCB 82
25Finally, Dr Fennessy stated:
“… I believe that Mr. Seymour developed a significant and disruptive depression occasioned by his closed head injury and the disfiguring and alienating affects of his scar and that it is only now two and a half years after those events that he has actually begun to get his life back on track. I am encouraged by his present state of mind and his present resolved to put all these problems behind him.”[43]
(sic)
[43]PCB 83
26Having consulted solicitors, Salinger Brown, regarding TAC benefits, he was referred to general surgeon, Mr Peter Scott, who reported on 24 August 1999.[44] Mr Scott confirmed a history that the plaintiff was not wearing a seatbelt and “his head shattered the windscreen and he was dazed momentarily”.[45] Mr Scott stated:
“… I understand he was treated for the following injuries:
1. Mild concussion from which an apparent rapid and uneventful recovery occurred without active intervention.
2. Lacerations to the forehead, eyebrows, eyelids and chin which required suturing.
3. … .”[46]
[44]PCB 115
[45]PCB 115
[46]PCB 116
27On returning to school in 1996, Mr Scott took a history:
“He stated however that he found great difficulty in concentration and difficulty with vision in his left eye because of a suspected left cornial (sic) laceration which occurred at the time of the injury. In addition, he had become anxious and depressed and he was taking marijuana, which may or may not have been of benefit to his developed psychosomatic symptoms.
It appears however that he was unhappy at the Penbroke Secondary College and ceased schooling at that Institute later in 1996.”[47]
[47]PCB 116
28As to work capacity, Dr Scott stated:
“Since this time he has worked as a house painter and decorator, as a demolition worker and as a sales person at the Footscray Fruit & Vegetable Market. He last worked 5 months ago.”[48]
[48]PCB 116
29As to his present complaints, he relevantly recorded:
“1.…
2.Facial Scars. Forehead scar presents a cosmetic embarrassment to him and is associated with a reduced appreciation of pin prick and touch over the forehead extending back to the vertex of the scalp. .
With regards to the chin scar, he states that this is associated with a funny subcutaneous lump in its central portion.
3.…
4.Occasional depression which is not requiring medication at this point in time or consultation with a psychiatrist.”[49]
[49]PCB 117
30It was also recorded that in 1997 he played for the Olinda Bloods, an Australian Rules football team in the Yarra Ranges, as full forward and in 1998, he played two games for his football team, until he injured his right shoulder.[50]
[50]PCB 117
31Finally, in assessing the whole person impairment for the right knee, facial scars and sensory deficits to the forehead, Mr Scott commented:
“It should be noted that no allowance has been made for visual and psychosomatic disturbances which in tum require an opinion from the relevant specialists.”[51]
[51]PCB 119
32Approximately two weeks later, the plaintiff was referred to consultant psychiatrist, Dr Gibney, who reported on 7 September 1999. He took a history:
“… Mr. Seymour does not remember the actual impact. He became aware of his surroundings trapped in the car ‘an absolute mess’. He was in a confused mental state. ‘I did not know what was going on’. He could not get out of the car. On[e] of his friends opened the door and pulled him out. He has been told that he was screaming out at the accident scene but he does not remember that.
…
… he was in a state of shock and he was experiencing pain. He believes that he was lapsing in and out of consciousness.
…
He had plastic surgery to repair a large laceration of his forehead and the laceration on his chin. There were multiple small lacerations under the chin as well and he is due to have a revision of the scar on his forehead soon.”[52]
[52]PCB 123
33The plaintiff gave a further history that he tried to keep thoughts about the accident out of his mind, but they intend to intrude on his consciousness. He told me that:
“… he had sat a written examination for a learner’s permit some time ago but he got confused in the test and failed it. He would like to be able to drive himself because he is extremely nervous as a car passenger now. He breaks into a sweat and if the car jolts around he has some flashbacks. He shouts warnings to his friends in the car, He becomes startled and upset if other vehicles come up close beside the car in which he is travelling.
He finds it hard to tolerate a lot of noise. He does not have the confidence to go into very crowded situations.
He does not drink much alcohol but he told me that he began smoking marijuana heavily after this accident. He had been an occasional smoker before the accident and confined his smoking to week-ends. After the accident he was smoking marijuana in a pipe and he would have ‘a fair few’ smokes every day. However, he ceased smoking marijuana six or seven months ago.
He told me that he still feels depressed and still gets to the point of tears ‘when reality sinks in’. He becomes distressed every morning when he looks at his scarred face in the mirror.
He told me that he had gone to a job interview for a job in the upholstery yesterday and he has been promised he will get that job.
When I asked about the way that he spends his days he told me that he watches a good deal of television … .
He tries to read but he has continuing difficulties with concentration and he also has his eye trouble. His main recreation is practicing (sic) as a drummer with a band, He loves music but I gather his playing is not a commercial proposition although he has ambitions.
…
… He has not had depression or other nervous trouble in the past.”[53]
(sic)
[53]PCB 123-124
34It was Dr Gibney’s opinion:
“This man is suffering from symptoms of a post-traumatic stress disorder made manifest by bad dreams about the accident, flashbacks of the accident scene and intrusive thoughts. All of those experiences reliving the accident distress.
I note that he suffered from irritability, headaches and difficulties with concentration after this accident. They are features of a post-concussion syndrome which would have arisen as a primary consequence of the accident and the symptoms are persisting to some extent. If I believe that his depression, which is mild and which is mainly associated with a loss of self-confidence, is predominantly a secondary reaction to the physical injuries that he suffered, particularly the scarring around his face and his left injury.
I would assess this man as having a permanent psychiatric impairment of 15%. Of this 10% would be a consequence of his post-traumatic stress disorder and his post-concussion syndrome and they would be primary responses to the accident scene. The remaining 5% is, in my opinion, secondary to his physical injuries … .”[54]
(sic)
[54]PCB 125
35The plaintiff then came under the care of Dr Igor Jakubowicz, a general practitioner at Knoxfield Medical Centre. Apparently Dr Jakubowicz first encountered the plaintiff while he was in prison in 2001 and had begun to treat him for heroin withdrawal in 2004. On 9 February 2009, he wrote to ophthalmologist, Dr Ron Stasiuk, with a recorded medical history as follows:
“PHx severe MVA aged 14 … Saw psychologist from age 14 to 18.
He has not worked a full week in 7 years, except while in jail. Now doing community service.”[55]
[55]PCB 87
36Further, on 9 February 2009, Dr Jakubowicz issued a medical certificate as follows:
“To whom it may concern:
This is to certify that, in my opinion, the patient described above has anxiety-depressive illness with substance dependency and aprosexia and has trouble doing a sit-down course. I am arranging neuropsych evaluation.”[56]
[56]PCB 89
37Then, on 31 March 2009, Dr Jakubowicz completed a medical report in support of a disability support pension.[57] The diagnosis was recorded as “head injury with resultant depression, substance abuse”, with date of onset being 2 October 1995.[58] The history of the injury was given as “motor vehicle accident with head trauma”.[59] The current symptoms were described as:
“Depression, substance dependency, poor vision [left] eye, anxiety disorder, numb scalp, PTSD.”[60]
[57]PCB 91
[58]PCB 92
[59]PCB 92
[60]PCB 92
38The current treatment was recorded as “Buprenorphine, diazepam, alprazolam”.[61] Past treatment was recorded as “various antidepressants” and future treatment was recorded as “medications, psychotherapy”.[62] As to details about how this condition currently affects the plaintiff’s ability to function, he recorded:
“Impaired cognitive function, aprosexia, panic attacks, substance dependency”[63]
[61]PCB 93
[62]PCB 93
[63]PCB 93
39Dr Jakubowicz also certified the plaintiff had been a patient since 2004.[64]
[64]PCB 95
40On 1 April 2009, a Job Capacity Assessment Report completed by Centrelink noted the plaintiff had an acquired brain injury, depression and drug dependence, and that he had cognitive/neurological impairment and concentration limitations. It was noted that the plaintiff had anxiety attacks every day, especially when leaving the house, and a limited concentration span of only ten minutes, as well as suicidal ideation.[65]
[65]PCB 296-301
41On 11 June 2010, Dr Jakubowicz provided a medical certificate as follows:
“To whom it may concern:
This is to certify that the patient described above has had a long history of substance dependency. I first met him in my capacity as a police surgeon in 2001 while he was in custody. He started on a pharmacotherapy program with me in April 2004. He had a stormy course for the first few years, with frequent relapses.
Since about May 2008 he has stabilised on buprenorphine with regular collection from the pharmacy and no evidence of ongoing heroin use. He has been occupying himself by doing some physical training in his home gym and drumming. All seems well. Prognosis is good.”[66]
[66]PCB 97
42Further, on 16 March 2011, Dr Jakubowicz provided a further medical certificate, which repeated the above history and added:
“… He attributes the longstanding anxiety & depression to a car accident in 1995 from which he also has residual symptoms with nerve damage although he has learned to live with these and doesn’t complain. He is on a daily dose of 20mg diazepam. I understand he has a stable home situation.”[67]
[67]PCB 99
43In September 2012, Dr Oliver took over as the plaintiff’s treating medical practitioner and continued the heroin-withdrawal treatment.[68] Dr Oliver wrote to a pharmacy in Surfer’s Paradise on 19 April 2013 for the purposes of continuing the treatment.[69] He also wrote to a medical practitioner, Dr Wayne Herdy, on 22 May 2013 for the purposes of continuing the treatment. The history included that the patient was a disability pensioner and there had been a loss of consciousness at the time of the accident and:
“… he believes that he suffered a degree of brain injury - he states that from that time he has had difficulty with decision-making. He saw a psychiatrist at the time, but without resolution of the issues.”[70]
[68]PCB 101
[69]PCB 105
[70]PCB 107
44Dr Oliver then wrote to the Ringwood Magistrates’ Court on 25 November 2015, which included:
“Dean has been attending me at this Clinic on a regular basis since December 2013, and prior to that at the Clayton Mediclinic, 1381 Centre Road, Clayton since early 2012.
His medical history includes his involvement as a passenger in a serious motor vehicle accident in October 1995, shortly before his fifteenth birthday, which resulted in significant facial and head injuries, and a subsequent diagnosis of Acquired Brain Injury.
…
Symptoms attributed to the Acquired Brain Injury include impairment of short-term memory, impulsivity, and difficulties with decision-making.
Problems with coping with these restrictions on his lifestyle have led to depressive features, anxiety, and from time to time the inappropriate use of alcohol and other drugs.
Dean was granted a Disability Benefit some years ago.
Currently, | prescribe Suboxone, Diazepam and Dothiepine (sic) as part of the management of his various problems.”[71]
[71]PCB 111
45Following an application to the Transport Accident Commission (“TAC”) in 2016 for a serious injury certificate, a joint neuropsychological report was commissioned from clinical neuropsychologist, Nola Ross, dated 2 July 2018, following examinations on 12 June and 20 June 2018.[72]
[72]PCB 129
46In her report, Ms Ross stated that she had twenty-three years’ experience in assessing the effects of neurodevelopmental disorders and acquired brain damage. She reviewed all relevant documents provided, both by the plaintiff’s solicitors (then Arnold Thomas & Becker) and the TAC.
47Ms Ross took a relevant history that:
“On the 3rd October 1995 … [the plaintiff] then aged 14 was a front seat passenger when the car in which he was traveling crashed into a tree at high speed. He was removed from the car and carried to a house in a fluctuating, conscious state. He was later … admitted to Maroondah Hospital with lacerations and concussion and then was transferred to the Alfred Hospital where he reportedly presented as alert and orientated. He was treated for a mild concussion, and lacerations to the forehead, eyebrows, eyelids and chin ... A CT brain scan dated 3rd October 1995 was reported as normal … .”[73]
[73]PCB 132
48Ms Ross recorded her role to be:
“To examine the extent of and consequence of … [the plaintiff’s] acquired brain injury … .”[74]
[74]PCB 132
49Ms Ross further stated that:
“… the reports supplied by the TAC and by Arnold Thomas & Becker were read thoroughly and a clinical interview was conducted with [the plaintiff] to gain an understanding of the effect the accident had on his life. A neuropsychological examination via tests and observation was also conducted.”[75]
[75]PCB 132
50In particular, Ms Ross referred to the medical reports referred to above from Dr Shane Fennessy, Dr David Mackey, Dr Gibney and Dr Oliver.[76]
[76]PCB 133
51Ms Ross took a history from the plaintiff to the effect:
“… Prior to the accident he believed that he did not have any learning problems although his main interests were music and sports. After the MVA he said that he had difficulty concentrating and had problems with vision in his left eye, and in addition was embarrassed in relation to his facial scaring. He did not return to school the year of the accident and the following year he transferred to Lenbrook Secondary School where he continued to experience anxiety and depression and began to self-medicate with marijuana. He played football in 1997 but he injured his right [shoulder] in 1998 and could not continue playing. He finished his schooling in year 10. He has had a variety of jobs including a house painter, a demolition worker, an upholsterer and has worked as a salesperson. He has been unable to work since 2008 and currently has a disability pension.”[77]
[77]PCB 133
52Ms Ross further stated:
“At the first consultation [the plaintiff] presented as disheveled and anxious. His discourse was characterized by circumstantiality - an inability to answer a question without giving excessive, unnecessary detail. He became distressed when recalling a specific incident that occurred during his admission to hospital … In view of his distress some relaxation techniques (controlled breathing) were introduced to. the session to which [the plaintiff] responded. It was suggested that he practice these techniques at home. At the second consultation he was mote settled and was well groomed. At both sessions he was cooperative although he was more alert at the second session. He frequently had to be bought back to the task as his thoughts wandered and he wanted to talk (at length) about his issues. [The plaintiff] admitted to a long history of substance and alcohol abuse, and antisocial behavior dating from his MVA. When asked if he had any rehabilitation in relation to his TBI he said that he was referred to HeadStart, an organization for people with acquired brain injury. No information in regards to his treatment/support at Headstart, however, was available at the time of writing this report although [the plaintiff] recalled ‘a lot of counselling’ and said ‘I struggled in those years adjusting and did become very troubled’.”[78]
(sic)
[78]PCB 134
53Thereafter, a number of neuropsychological tests were administered, which measured, inter alia, general intelligence, short-term memory, verbal memory and new learning, attention and executive function.[79]
[79]PCB 134-135
54Ms Ross’s summary of findings were as follows:
“… [The plaintiff] performed at a Low Average level on tests of verbal and nonverbal reasoning, working memory and speed of processing. During the assessment he displayed some significant attentional deficits associated with poor cognitive control His executive impairments are consistent with a TBI (see following paragraph) and the results of a long history of drug and alcohol use. … [The plaintiff] also displayed a high level of anxiety and moderate depression symptoms at this assessment.
Sequelae of a TBI
A TBI can be mild or severe, and the impairment suffered can be temporary, long term or permanent. The skull does not have to be fractured for a TBI to occur, nor does the person have to suffer a loss of consciousness. A single concussion can disrupt the neurological mechanisms underlying cognition.[80] Cognitive problems are associated with a TBF include impairment in executive function (cognitive control mechanism) learning and memory, attention and processing speed, among others.[81] Along with these impaired cognitive functions, TBI also causes an array of symptoms, most notably headaches, fatigue, depression, anxiety and irritability. … [The plaintiff] has suffered all of these cognitive and behavioral problems.
Summary and Opinion
… [The plaintiff] is a 37 year old man of Low Average Intelligence who sustained a traumatic brain injury in a motor vehicle accident on 2nd October 1995. He suffered fluctuating consciousness following the accident in which his head made contact with the windscreen which shattered causing facial lacerations. A CT brain scan following his admission to hospital was reviewed as normal although there is a self-report that a haemorrhage was evident on a later scan. Since the accident he has experienced problems with memory, concentration, fatigue and irritability, and has been anxious and depressed.
… [The plaintiff’s] brain injury and significant facial scarring occurred when he was 14 years old when he was in the first stage of adolescence; a sensitive developmental stage particularly for the growth of self-esteem and sense of self. It is a period where adolescents begin to have concerns about their physical appearance. Hence the impact of [the plaintiff’s] disfigurement was significant. In the period following the MVA [the plaintiff] exhibited changes in mood; irritability, and difficulties in relationships. He had difficulty sleeping, had nightmares about the accident, flashbacks of the accident scene and intrusive thoughts, all reliving the accident; distress symptoms consistent with Post Traumatic Stress Disorder. He withdrew from schooling and began to self-medicate with illicit drugs and alcohol and engaged in anti-social behavior.
… [The plaintiff’s] current level of cognitive impairment may be attributed in part to his chronic use of drugs and alcohol. There is, however, evidence suggesting that executive dysfunction (poor impulse and behavioural control) subsequent to a TBI contributes to the development of substance use disorders.[82]”[83]
(sic)
[80]Footnote provided
[81]Footnote provided
[82]Footnote provided
[83]PCB 136
55In response to various questions, Ms Ross stated:
“As it is now almost 23 years since the injury took place recovery from the head injury is likely to have stabilised. … [The plaintiff’s] mental condition is unstable and his mental issues require ongoing psychiatric treatment.
…
It is likely that his mental condition will deteriorate if he continues with self-medication.
…
The consequences of … [the plaintiff’s] cognitive and mental condition have and will continue to impact on his activities of daily life including his domestic, social and recreational activities.
…
At the time of this assessment It is most unlikely that [the plaintiff] would be capable of employment.”[84]
[84]PCB 137
56In my view, this neuropsychological assessment is consistent with the histories and opinions referred to above and is prima facie evidence that the plaintiff had suffered an acquired brain injury (TBI) as a result of the MVA, which has had a marked effect on the plaintiff’s life, including leading to drug addiction and marked interference with his employability. In the seminal case of Humphries and Anor v Poljak,[85] the majority quoted the dicta of Marks J in the case of Ninkovic v Pajvancek[86] at 429 to the following effect:
“… I think that for an impairment to be serious, it must have consequences which are serious for the plaintiff, and having regard to the context of the statute in which this definition appears, I am of the opinion that a serious impairment which is long-term is one which has a serious consequence for the plaintiff in the form of disablement from work or interference with enjoyment of life.”
[85][1992] 2 VR 129
[86][1991] 2 VR 427
57I am thus satisfied that on the basis of Ms Ross’s report, there was prima facie evidence of a serious injury being caused by the MVA.
58Nonetheless, the defendant ultimately rejected the application on 14 May 2019. Accordingly, on 1 August 2019, the plaintiff’s then solicitors issued an Originating Motion in respect of the MVA. However, on 26 November 2019, the solicitors advised him that he could no longer continue to act for him and provided him with advice regarding the expiry of limitation period. Less than a month later, on 20 December 2019, the plaintiff attended the office of Henry Carus Lawyers, which now has the conduct of this proceeding.
59The plaintiff’s solicitors than requested a follow up neuropsychological report from Ms Ross, which was provided on 13 October 2020.[87] At clinical interview:
“… [The plaintiff] presented as a dishevelled middled aged man who required reminding to disinfect his hands prior to the assessment. His hair was long and unwashed. He appeared morose and at times was tearful. He tired easily and requested a break for smoking. He constantly apologised and was self-demeaning. He was late to both consultations.
… [The plaintiff] said that he has been unable to work and has a disability pension … His discourse was characterized by poorly regulated, self-referenced, thoughts about his unhappy circumstances that distracted from the assessment tasks. This rambling style of communication extended the time of the consultations. He became distressed several times during the assessment. He could not draw the Complex Figure of Rey as his hands were trembling. He interrupted many tests with comments such as ‘I’m fed up’ and ‘sick of doing these tests’ and talked about how his life has been ruined by the MVA. He drew attention to the lack of sensation in his forehead and how his vision was failing. He was most concerned in regard to his memory and said that his mother complained that he forgot what she told him.”[88]
[87]PCB 141
[88]PCB 148
60Further, Ms Ross reported:
“As … [the plaintiff] had been a drug user for some years including IV narcotics and amphetamines as well as marijuana, he was asked about his current medications. He said that he has successfully rehabilitated himself away from narcotics and amphetamines and that he was on a Suboxone detoxification Program. He takes prescribed diazepam for anxiety.”[89]
[89]PCB 148
61A number of neuropsychological tests were administered to determine the plaintiff’s current level of cognitive function. Included was the National Adult Reading Test (“NART”) which is a:
“… widely accepted and commonly used method for estimating premorbid intelligence; that is prior to brain injury tests are called hold tests as these abilities are thought to be spared, or ‘held’ following neurological injury or decline. On this test, … [the plaintiff’s] premorbid level of intellectual functioning was estimated to fall within the Average range. He produced appropriately motivated performances on the Rey 15 item test; a test of performance validity.”[90]
[90]PCB 149
62Otherwise, the testing, in my view, was similar to that conducted on the first occasion and, once again, Ms Ross reported:
“… [The plaintiff’s] current level of cognitive impairment may be attributed in part to his chronic use of drugs and alcohol. There is, however, evidence suggesting that executive dysfunction (poor impulse and behavioural control) subsequent to his TBI contributed to the development of his substance use disorder.[91]”.[92]
[91]Footnote provided
[92]PCB 153
63Shortly prior to the commencement of this proceeding, the defendant had the plaintiff examined again for neuropsychological assessment, this time by Dr Andrew Gibbs, clinical neuropsychologist, who reported on 13 May 2001.[93] In addition to the medical reports referred to above, on this occasion, the TAC provided medical information dated 23 August 2005 and 7 November 2005 from a Dr Raymond Carne, addressed to Dr Samuel Battaglia and Professor Peer Gibson respectively. These reports are not in evidence before me. Dr Gibbs took a history similar to that of Ms Ross and also commented on the medical reports referred to above. Dr Gibbs also referred to the neuropsychological report of Ms Ross, dated 2 July 2018, and the tests administered by her. In particular, he noted:
“It is concluded that … [the plaintiff’s] impairments, particularly executive impairments, are consistent with a traumatic brain injury, and results of a long history of drug and alcohol abuse. He was also said to present with moderate depressive symptoms, and a high level of agitation/ anxiety. IT was considered that whilst his cognitive impairment may in part be contributed to by his drug and alcohol chronic use, that there os evidence that executive dysfunction due to his traumatic brain injury contributed to the development of his substance use disorder… .”[94]
(sic)
[93]PCB 210
[94]PCB 216
64Dr Gibbs also took account of a psychiatric report from Dr David Weissman, dated 15 October 2018 and a neurosurgical report from Mr Paul D’Urso, dated 13 October 2020.[95] Dr Gibbs also had various clinical records ranging from 2001 to 2020. Dr Gibbs then performed a number of objective psychological tests, which are set out at PCB 226-228. In his opinion section, he was asked as follows:
[95]PCB 216-217
“1.In your view, did … [The plaintiff] sustain a neuropsychological injury in the transport accident?
Yes.
1.1.If so, what is your diagnosis of the neuropsychological condition?
… [The plaintiff] sustained a Closed Head/ Acquired Brain Injury of likely mild, to at most moderate severity, with post-concussional features.
… [The plaintiff] also has features of a Depressive disorder with anxiety, and a Substance Use Disorder (with it unclear as to whether the latter is an exacerbation of prior pre-disposition, or new onset post-injury).
1.2Has the neuropsychological condition since resolved, or is the neuropsychological condition ongoing?
… [The plaintiff’s] condition is likely not resolved, and ongoing.
2.If you consider … [the plaintiff] is presently suffering from a neuropsychological condition sustained in the transport accident, please detail;
2.(a) The diagnosis of any neuropsychological condition.
As above – … [The plaintiff] sustained a closed head/ acquired brain injury of likely mild, to at most moderate severity, with post-concussional features.
… [The plaintiff] also has features of a Depressive disorder with anxiety, and a Substance Use Disorder (with it unclear as to whether the latter is an exacerbation of prior pre-disposition, or new onset post-injury).
2.(b) The symptoms of any neuropsychological condition.
… [The plaintiff] has;
• Reduced auditory attention/ concentration
• Poor verbal learning and retention
•Executive deficit - with reduced spatial organisation, susceptibility to interference (or inflexibility), and features of impulsive intrusive errors.
• Variable slowing of processing speed.
• Self report of susceptibility to fatigue, sensitivity to noise and light, and headaches.
• Self report (and appearance) of irritability and lowered frustration tolerance.
• Self report of symptoms of depression and anxiety;
• Self report of symptoms of post-traumatic nature (dreams; intrusive thoughts; hyperarousal, vigilance).
2.(c)The prognosis for the neuropsychological condition.
… [The plaintiff’s] neuropsychological condition due to an acquired brain injury related to the car accident in October 1995 would be regarded as stable, and not likely to deteriorate.”[96]
[96]PCB 229
65When asked about the impact of any neuropsychological condition on the plaintiff’s work capacity, Dr Gibbs replied:
“Due to the 1995 head injury alone (of likely mild to ay most moderate severity), … [the plaintiff’s] condition would be likely to be associated with symptoms of requiring need to manage fatigue and sensitivity to environmental factors such as noise and light levels; as well as potentially managing headache.
He appears likely to have sustained a mild to moderate acquired brain injury, where there is potential his attention and memory is reduced, and so he likely requires 1. increased use of aids as reminders (eg diaries; alarms; notes), 2. A degree of routine and structure, and 3. A level of supervision and assistance to provide feedback and prompts.
Factors related to irritability also has the potential to impact interpersonal interactions, and so there is potential that work relationships would require and informed and sympathetic employer.
I note that Dr Gibney in 1999 referred to severe headaches and self consciousness (re scarring being looked at) were said to have adversely impacted work function at the time.
There is potential that … [he] had some potential work capacity in the year or so post accident, though his emotional state and subsequent substance use appears likely to have played a more prominent role with respect to the failure to enter the workforce on a stable and durable manner.”[97]
(sic)
[97]PCB 230
66Next, Dr Gibbs was asked:
“Do you consider that … [the plaintiff] is presently suffering from any other neuropsychological condition which is pre-existing or related to the transport accident? If so, please detail;
3.(a) The diagnosis of any neuropsychological condition.”
to, which he responded:
“… [The plaintiff] has a Substance Use Disorder (polysubstance) where it is unclear as to the extent of any pre-existing use and/ or pre-disposition.
None-the-less, he has a Substance use Disorder where the effects of the transport accident of 3.10.1995, including an organic acquired brain injury with postconcussional features, and the social and emotional effects of the injury likely contributed either to the onset and/ or exacerbation of any prior pre-disposition.”[98]
(sic)
[98]PCB 230
67In my view, this opinion corroborates that of neuropsychologist, Ms Ross, to the effect that the relevant head injury has produced an organic acquired brain injury with post-concussional features, which has had the effects referred to above, including contributing to a substance use disorder, such that the requirements of serious injury are made out.
68I am fortified in this view by other factors, including Dr Gibney referring to a “post concussion syndrome in 1999; neurologist, Mr Michael Tan, on 13 May 2021, diagnosing a “very mild traumatic brain injury”[99] arising out of the MVA, and psychiatrists, Dr Weissman and Associate Professor Khalid diagnosing the plaintiff with a “mild neurocognitive disorder”.
[99]PCB 240
Sub-paragraph (b) – permanent serious disfigurement
69As a consequence of the MVA, the plaintiff suffered a number of lacerations to his face and neck when his head hit the windscreen. Photographs of the lacerations taken shortly after the accident are corroborative of this assertion.
70In company with counsel, I took the opportunity to view the scarring on 23 June 2021. In determining whether a permanent serious disfigurement is a serious injury under s93(17)(b) of the TAA, regard should be had to the location, size and degree of obviousness of the scar, in addition to any other consequences, including the mental consequences of the disfigurement to the applicant.[100]
[100]See Baker v Transport Accident Commission & D’Alberto [1997] 1 VR 662, 664-665; Transport Accident Commission v Garcia [2015] VSCA 225, paragraphs [27]-[29] and paragraph [35]
71The plaintiff does have scarring across his forehead, both eyelids, and under his chin. The plaintiff has stated that the scar on his chin causes him difficulties with shaving.[101]
[101]PCB 43
72Further, many practitioners refer to the scarring occurring when the plaintiff was in the first stage of adolescence, which is a sensitive developmental stage, particularly “for the growth of self-esteem and sense of self”.[102] Further, Ms Ross notes that this is a period when adolescents begin to have concerns about their physical appearance, such that the impact of the plaintiff’s disfigurement was significant for him.[103]
[102]Ms Ross at PCB 136
[103]PCB 136
73However, I have no doubt that the scars have faded over time and, in my view, are really only obvious once one looks for same. I accept the plaintiff continues to be embarrassed by the scars and dislikes it when people ask about their source. I do accept the defendant’s submission that the scars are now faint and faded. I also accept that there is no evidence the plaintiff has required targeted and/or recent psychological treatment for the scarring. Finally, I accept the submission that the scarring and disfigurement in this case is not “serious” when compared to like cases and, in the circumstances, the application in respect of his sub-paragraph (b) claim is dismissed.
Sub-paragraph (c) – severe long-term mental or behavioural disorder
74I am persuaded by the relatively contemporaneous opinion of psychiatrist, Dr Gibney, in 1999, to the effect that the MVA caused a post-traumatic stress disorder, as well as a post-concussional syndrome.
75In addition, the plaintiff has been diagnosed with the following psychological conditions arising out of the MVA:
(a) persistent depressive disorder with traumatisation features;[104]
(b) substance abuse disorder (currently in remission);[105] and
(c) personality change due to another medical condition (traumatic brain injury).[106]
[104]Dr Weissman at PCB 161; Associate Professor Khalid at PCB 201
[105]Associate Professor Khalid at PCB 201; Associate Professor Doherty at DCB 66
[106]Associate Professor Khalid at PCB 200
76Counsel for the plaintiff submit as follows:
“Dr Weissman considers that there is a significant amount of day-to-day functional impairment that is psychiatrically/psychologically based in terms of his marked anxiety, as well as his depression, lowered frustration tolerance and irritability, social withdrawal, lowered self-esteem and confidence, the effects of his sleep disturbance and the side effects of his medication regime (P176). He notes that the plaintiff has some bad dreams regarding the accident (P171).
A/Prof Khalid believes that the plaintiff’s ability to attend to his recreational activities is significantly affected by his psychological condition (P202) and that from a psychological perspective he has no capacity for employment (P202).
A/Prof Doherty saw the plaintiff on 15 December 2020 (D58). He considered that there is no persistent depressive disorder diagnosable, but there is some suggestion of an anxiety-laden psychiatric problem. A/Prof Doherty’s opinion is in contradiction to that of Weissman and Khalid, and is inconsistent with the plaintiff’s Affidavit evidence, as well as that of his mother and brother (both on affidavit P23 and P57), regarding his mood and day to day life.
The plaintiff deposes that he continues to suffer from flashback memories and nightmares about the MVA (P13), and that he continues to have panic attacks at times (P43 [23]). The plaintiff deposes that he struggles to get out of bed most mornings (P43[24]) and that there are times when he will stay in his room for days (P43[25]).
At times, the plaintiff feels lonely, isolated and desperate and he self-medicates with alcohol (Plaintiff’s Further Affidavit, P44 [25]).
The plaintiff currently takes Valium 5mg, 4 tablets per day, Stillnox (sic) 10mg at night as required and Suboxone (heroin replacement) 20mg daily (Plaintiff’s Further Affidavit, P44 [26]).
The plaintiff therefore submits that he is suffering from a severe long-term mental or behavioural disturbance or disorder arising out of the MVA.” [107]
[107]Plaintiff’s Submissions dated 2 July 2021, paragraphs [82]-[88]
77In essence, I accept this submission.
78Predominantly, I consider that the plaintiff has proved he has suffered an organic acquired brain injury with a consequential cognitive deficit and depression, which in turn contributed to a substance abuse disorder, such that any purely psychological consequences have not subsumed the sequelae of the organic injury.
79There is clearly the potential for an overlap of symptoms between the organic and psychological injuries. However, once again, I accept the contemporaneous opinion of Dr Gibney that the plaintiff suffered from a separate post-traumatic stress disorder involving flashbacks and avoidance behaviour (for example while travelling in motor vehicles). As to whether those consequences could be characterised as “severe” as distinct from “serious” is a difficult question. However, I accept the plaintiff’s submission that this condition leaves the plaintiff feeling lonely, isolated and desperate, and contributes to self-medication with alcohol. I also consider the prescriptions of Valium and Stilnox are sequelae to this condition and, accordingly, although I regard the symptoms as borderline, on balance, I consider the condition is “severe” and leave will be granted under this head in addition.
Section 23A – Limitation of Actions Act 1958
80The plaintiff made an application by Summons for an extension of time pursuant to s23A of the LAA on 14 December 2020. I consider the defendant was put on notice about the potential for common law proceedings when application was made for a serious injury certificate in 2016, some twenty-one years after the transport accident occurred.
81The plaintiff turned eighteen years of age in November 1998, such that the limitation period expired on 27 November 2004, some twelve years prior to the application being made for a serious injury certificate.
82The plaintiff bears the onus to persuade the Court that in all the circumstances of his case, it is just and reasonable for the Court to extend time for him to issue proceedings against the driver of the relevant vehicle.
83In this regard, defence counsel submit:
“In the matter of Prince Alfred College Incorporated v ADC, the High Court stated that an extension of time cannot be a presumptive entitlement. The reason is because where there is delay the whole quality of justice deteriorates.[108]
[108][2016] HCA 37 at paragraph [99]
In the matter of Brisbane South Regional Health Authority v Taylor,[109] McHugh J made the following points:
• a limitation provision is the general rule;
• an extension of time is the exception to the rule; • the applicant is to show that their case is a justifiable exception; and
• the applicant has a positive burden of demonstrating that the justice of the case requires an extension.
The Defendant submits that there is good reason for time limits in litigation. In Brisbane South Regional Health, McHugh J set out the four broad rationales in relation to same. He stated:
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period…. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible. (Emphasis added).”[110]
[109](1996) 186 CLR 541 at 553
[110]Defendant’s submissions dated 8 July 2021, paragraphs [13]-[15]
84The plaintiff seeks an extension of time pursuant to s23A of the LAA on the basis that such extension is just and reasonable.[111]
[111]Section 23A(2) LAA
85Pursuant to s23A(3) of the LAA:
“(3) In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
(a) The length of and reasons for the delay on the part of the Plaintiff
86The plaintiff submits the reasons set out in his affidavit and include:
(a) a failure by the solicitors initially seen by the plaintiff between 1997 (when he was a minor) and 2000 to advise him that he had any common law rights;
(b) serious drug addiction from at least age sixteen until 2008;
(c) a period of imprisonment between 2000 and 2004, following the commission of an armed robbery;
(d) ongoing difficulties with concentration, memory and decision making as a consequence of an acquired brain injury caused by the MVA.
87Defence counsel also point out that he engaged a second lawyer, Salinger Brown, in February 2000, and received benefits from the TAC in about 2001, before the limitation period expired. However, it is not specifically alleged that the plaintiff engaged either firm to advise him about common law rights as distinct from no-fault benefits pursuant to statute. The plaintiff also submits that he had not made a deliberate decision not to commence proceedings, compared to the facts in the Prince Alfred College Inc v ADC[112] case. The plaintiff’s mother also swore:
“I do not recall Salinger Brown providing us with any advice regarding common law damages or a limitation period in respect of the accident, and I do not believe they did so.”[113]
[112](2016) 258 CLR 134 at 144-5
[113]PCB 24
88Neither proponent was cross-examined about this or any other matter.
89Defence counsel also submit, the fact the plaintiff engaged a lawyer in August 2013 for a matter before the Ringwood Magistrates’ Court and another solicitor, Grant Hutchinson, in May 2017, and then, once again, another solicitor in July 2017 in relation to his victim of crimes case, is relevant information. However, it is clear to me, on the evidence, that at these material times, the plaintiff was suffering from a cognitive disability consequential upon the MVA and there is insufficient evidence before me to infer an onus on any of these solicitors to advise the plaintiff regarding his common law rights with respect to the accident.
90Defence counsel also submit that once the plaintiff engaged with Arnold, Thomas & Becker on or about 20 October 2016, there is no explanation why no Summons was issued prior to 2019. Nonetheless, it has been submitted without objection, that Arnold, Thomas & Becker applied for a serious injury certificate in 2016 and I have not been advised as to why the TAC and the plaintiff jointly applied for a neuropsychological report in 2018. Certainly, the defendant has not asserted that the plaintiff delayed proceedings, having made the application for the Serious Injury Certificate.
91Further, defence counsel submits:
“To the extent that the Plaintiff in his written submissions relies on his ‘serious drug addiction’, period of imprisonment and ongoing difficulties with concentration, memory and decision making, none of these matters are in evidence. This is not in the Plaintiff’s affidavit. Likewise, it is not in the affidavit of his mother, his brother or his aunty. In these circumstances, they cannot be relied upon by the Court. It is respectfully submitted that these matters have been recently invented to ‘patch-up’ deficiencies the Plaintiff’s affidavit material and should not be allowed.”[114]
[114]Defendant’s Submissions dated 8 July 2021, paragraph [24]
92However, as already indicated, I am satisfied that the plaintiff has proved a chain of causation which connects those elements to the MVA by way of the medical evidence referred to.
(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the Defendant
93Defence counsel fairly submit:
“Although the delay is lengthy, the mere duration of the time is not determinative of the issue. The question for the Court is whether the delay is likely to cause prejudice to the proposed defendant and if so, how significant is the prejudice?”[115]
[115]Defendant’s Submissions dated 8 July 2021, paragraph [25]
94Further, defence counsel submit, and I accept:
“The starting point is the presumptive prejudice recognised in Brisbane South Regional Health Authority.[116] Delay in any case is prima facie prejudicial. In cases where there is delay, the whole quality of justice deteriorates.[117] The passage of time inevitably means that memories fade and the best evidence is lost, often permanently (true in this case).”[118]
[116]See Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSCA 517 at paragraph [89]
[117]Gordon v Norwegian Capricorn Line (Aust) Pty Ltd (ibid) at paragraph [1]
[118]Defendant’s Submissions dated 8 July 2021, paragraph [25]
95Accordingly, the affidavit of defence solicitor, Belinda Celi, sworn 3 June 2021, refers to and relies on general prejudice due to the efflux of time.[119] Additionally, Ms Celi outlines the matters that would cause the defendant actual or specific prejudice:
· The destruction of the 1997 and 2000 legal files.[120]
· The unavailability of medical records – Ambulance Victoria – Dandenong District Hospital (21 October 2008 and 1 September 2009) – Home Doctor Service (19 October 2012) ꟷ Ekera Urgent Care (19 February 2014).[121]
· The unavailability of the plaintiff’s school records/reports[122] to ascertain the nature and extent of the plaintiff’s pre-injury capacities and properly assess a claim for loss of chance and/or pecuniary loss.
· The unavailability of medical records in relation to treatment for subsequent injuries, in particular 2014 and 2017, to ascertain the nature and extent of the injury, loss and damage caused by these further incidents.[123] For example, it is submitted, the Statement of Claim in relation to the plaintiff’s escalator accident[124] claimed a psychiatric injury and chronic pain disorder.
· The unavailability of financial and/or business records to ascertain the nature and extent of the plaintiff’s claim for pecuniary loss.
[119]DCB 7
[120]DCB 8
[121]DCB 10
[122]DCB 12
[123]DCB 14
[124]DCB 156
96The defendant also alleges that contributory negligence will be a difficult issue with respect to whether the plaintiff was affected by alcohol and whether he was in fact wearing a seatbelt in the accident. In this regard, it is submitted that a significant question at trial will be why was not the plaintiff wearing a seatbelt.
97As against this, the plaintiff’s evidence is that the driver is still alive[125] and the defendant does not assert he is unavailable. Further, the circumstances of the collision, as revealed in the collision report and the plaintiff’s original statement, would lead to the inference that negligence will not be a difficult matter to prove. Further, the question of whether or not a seatbelt buckle was already available has already been referred to in the plaintiff’s contemporaneous statement. The driver has not placed any evidence before the Court as to his knowledge of this issue.
[125]PCB 12
98As to issues with respect to general damages and economic loss, it can be anticipated that the plaintiff’s evidence will be that there is significant financial loss due to cognitive impairment, as outlined in the medical evidence above. In this regard, the defendant has already obtained two separate reports from one neuropsychologist and one report from a second neuropsychologist, about the plaintiff’s employability. Further, the neuropsychological evidence obtained by the defendant to date corroborates the chain of causation attested to a closed head injury leading to cognitive impairment and in turn substance abuse such that, unless further evidence is later adduced, the evidence with respect to causation is clearly in frame. I further accept that the plaintiff has provided extensive Centrelink records which date back to 1998 and, it would appear, has been in receipt of a disability support pension since 2008.
99Defence counsel further submits that if the plaintiff had issued proceedings in time, that is, before November 2004, it would be able to arrange for medical examinations at a crucial point when determining the causation of the plaintiff’s alleged injuries. Once again, there is no suggestion in the neuropsychological reports that delays since 2004 have hampered them in providing opinions with respect to the causation issue.
(c) The extent, if any, to which the Defendant had taken steps to make available to the plaintiff means of ascertaining facts which were, or might be, relevant to the cause of action of the Plaintiff against the Defendant
100The plaintiff submits that the TAC did not, at any time, advise the plaintiff that he may have common law rights in respect of the MVA, despite corresponding with him regarding his entitlement to impairment benefits.[126] However, I am not so sure that Parliament intended, under this head, that the TAC had some sort of obligation to advise a putative plaintiff about common law rights. The defendant, at all material times, knew that the plaintiff was legally represented and would have reasonably anticipated that this issue would be raised in that forum.
(d) The duration of any disability of the Plaintiff arising on or after the date of the accrual of the cause of action
[126]DCB 20-21
101Under this head, I have already indicated that I am satisfied that the plaintiff has suffered a “serious injury” disability which has subsisted at all material times since the MVA. The defendant’s claim in this proceeding that the plaintiff suffered a mild head injury from which he recovered, has been rejected.
(e) The extent to which the Plaintiff acted promptly and reasonably when once he knew the act or omission of the Defendant to which the injury of the Plaintiff was attributable, might be capable, at that time, of giving rise to an action for damages
102The plaintiff has sworn that it was not until he was advised by Arnold, Thomas & Becker, when he sought advice about an escalator accident in 2014, that he became aware that he may have a common law claim arising out of the MVA. This firm requested a serious injury certificate on 20 October 2016.[127] It was not until 14 May 2019 that this application was rejected by the defendant, notwithstanding the possession of medical evidence, that included the report of Ms Ross, referred to above.
[127]DCB 30
103There is no allegation before me that there was untoward delay between 14 May 2019 and the issuing of an Originating Motion on 1 August 2019 in respect of a serious injury certificate.
(f) The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice and the nature of any advice he may have received
104On this point, the defendant submits that there is no evidence that the plaintiff took any steps whatever to make any enquiries of his solicitors to consult with them from time to time or to take any real interest in protecting or pursuing his rights. As against this, there is before me the uncontradicted evidence of both the plaintiff and the mother, that no advice was provided to him or to his parents regarding any common law entitlements that he may have, prior to attending Arnold, Thomas & Becker.
Other relevant factors
105In this regard, the defendant submits the nature and extent of the plaintiff’s injury, loss and damage caused by the transport accident, is much less significant once the chronology of events and medical evidence are carefully examined. It was submitted that, on the medical evidence, the transport accident was not a cause of any “serious injury to the plaintiff”. However, I am satisfied the plaintiff has proved the chain of causation, as is required, and that these consequences have had a very significant effect on his life, causing him to cease his schooling early, engage in high levels of drug use and be unemployed for the majority of his life.
106Further, as to whether the plaintiff’s former solicitors, Salinger Brown, could be reregistered by the purposes of litigation, is a moot point between the parties. In any event, it appears the file has been destroyed and, on the evidence before me, I could not be satisfied that they were retained in order to advise with respect to common law rights.
107Ultimately, in considering the factors referred to above, I am satisfied that in the terms of the legislation, the plaintiff can conduct a “fair trial”, which does not mean an ideal trial, but one that is “acceptably fair”.[128] Accordingly, in Holcombe v Hunt,[129] Dixon J stated that:
“The conclusion that … the defendants will receive a fair trial … is a powerful consideration in the exercise of synthesis of … considerations.”[130]
[128]Davies v Nilsen [2015] VSC 584 at paragraphs [107]-[108]
[129][2018] VSC 55
[130]Holcombe v Hunt (ibid) at paragraph [45]
108Finally, in WCB v Roman Catholic Trusts Corp for Diocese of Sale (No 2),[131] Keogh J held that:
“A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted.”
(Footnote omitted.)
[131][2020] VSC 639 at paragraph [204]
109In my view, it is just and reasonable for an extension of time to be granted and I will order accordingly.
110I will hear the parties as to any consequential orders.
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