Siham Allouche v TAC
[2020] VCC 508
•30 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02405
| SIHAM ALLOUCHE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE P GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 and 22 November 2019 | |
DATE OF JUDGMENT: | 30 April 2020 | |
CASE MAY BE CITED AS: | Siham Allouche v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 508 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious Injury Application – Whether plaintiff suffered severe long term mental disorder – whether plaintiff suffered long term mental or severe long term behavioural disturbance or disorder as a result of a transport accident where plaintiff’s son died when a passenger ion car – plaintiff not passenger – whether occasions of plaintiff’s dishonesty undermined plaintiff’s evidence of severe consequences - plaintiff’s evidence sufficiently reliable – consequences severe
Legislation Cited: Transport Accident Act 1986;
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592; Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSC 260; Katanas v Transport Accident Commission [2016] VSCA 140;
Judgment: Leave Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC | Antony, Sdrinis & Co |
| For the Defendant | Mr J Ruskin QC | Solicitor for the Transport Accident Commission |
HIS HONOUR:
The plaintiff
The plaintiff is a mother and wife. She is a stepmother to her husband’s children from his first marriage and has had six children with him. On 30 November 2015, her 15 year old son, Yousef, from her marriage to her husband, was involved in a high-speed motor vehicle accident. His injuries were severe. He was placed on life support, but it was turned off on 1 December 2015 and he died shortly afterwards. She seeks an order that she has suffered a serious injury in the form of a severe mental disturbance or disorder with consequences that are severe and long term.
The definition of “serious injury” in s 93(17) of the Transport Accident Act 1986 (Vic) (“the TAA”) intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c).
The allied other serious injury application
The plaintiff’s husband also has made an application to the Court for the grant of a serious injury certificate. He relied as well on paragraph (c) of the definition of serious injury under the TAA claimed to have been caused by the transport accident that resulted in the death of his son. For reasons published in his application I was satisfied of his claim for a serious injury certificate. Of course, the favourable determination of his application is not dispositive of the plaintiff’s application.
The application[1]
[1]No question of jurisdiction was relied on by the defendant.
Section 3(1) of the TAA defines transport accident as “an incident directly caused by the driving of a motorcar or motor vehicle…” Section 93(1) provides that:
“[a] person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident… except in accordance with this section.”
Conduct of the proceedings
Both applications were listed to be heard together. When they were allocated to me and came on for hearing, and no other orders had been made for the conduct of the proceedings, I asked the parties if they agreed to evidence in one being able to be used in the other. The parties agreed to this course.
I heard the evidence in each application consecutively, and I told the parties I would publish separate reasons for both matters. The application by Khaled Allouche proceeded first. At the conclusion of the evidence in his application, the application by his wife was heard. At the conclusion of her evidentiary case, closing addresses were made relevant to the respective application.
The evidence
The plaintiff supported her application by relying on two affidavits made by her and sworn 17 January 2019[2] and 19 September 2019.[3]
[2]Exhibit P1, Plaintiff’s Court Book (“PCB”) 8-13.
[3]Exhibit P2, PCB 14-17.
Medical evidence
The plaintiff also relied on medical records relating to Yousef Allouche:
The Royal Melbourne Hospital - ED Medical e-notes relating to Yousef Allouche, undated, Ambulance Victoria Electronic Patient Care Report (Hospital Copy) relating to Yousef Allouche dated 30 November 2015, and The Royal Melbourne Hospital - ICU Nursing Discharge relating to Yousef Allouche dated 4 December 2015[4]
[4]Exhibit P3, PCB 18-28.
The plaintiff relied on the following medical reports concerning herself:
Medical Reports/Records relating to the Plaintiff's treatment:
Progress notes of Dr Michael Yacoub dated 11 December 2015, 19 January 2016 and 18 May 2016, Medical reports of: Dr Michael Yacoub to Dr Raid Al Humrany dated 19 January 2016, Dr Michael Yacoub to Ms Shireen Francis dated 18 May 2016, Dr Michael Yacoub to Antony, Sdrinis & Co dated 27 February 2018, 4 October 2018, 15 February 2019 and 16 October 2019[5]
Report of Ms Shireen Francis dated 30 November 2016, 30 June 2017 and 22 February 2017[6]
Report of Dr Raid Al Humrany dated 24 March 2016[7]
Report of Dr Byron Rigby dated 7 October 2019[8]
Report of Dr Nathan Serry dated 22 February 2018[9]
Report of Dr Michael Epstein dated 17 October 2018[10][5]Exhibit P4, PCB 29-42.
[6]Exhibit P5, PCB 43-45.
[7]Exhibit P6, PCB 46-47.
[8]Exhibit P7, PCB 48-52.
[9]Exhibit P8, PCB 53-61.
[10]Exhibit P9, PCB 62-74.
2019 clinical notes of Ms Shireen Francis.[11]
[11]Exhibit P10, PCB 45A-45D.
10. The defendant relied on the following evidence:
Report of Associate Professor Peter Doherty dated 20 May 2018 and 31 October 2019[12]
[12]Exhibit D1, Defendant’s Court Book (“DCB”) 4-19.
Extracts of clinical notes of My Doctor Coburg.[13]
[13]Exhibit D2, DCB 20-47.
The plaintiff
11. The plaintiff was born in Lebanon. She received a very basic primary school education. She was married in July 2003 and later, in the course of that year, arrived in Australia and has lived in her home in Coburg ever since. Her husband had six children from his first marriage who lived at home. Her husband’s first wife died from cancer.
12.
The first of her children with her husband was born on 18 November 1995 and subsequently daughters were born in 1997, 1998 and 1999. Yousef was born on
21 July 2000. The youngest of her children, a boy, was born in 2009.
13. The plaintiff’s husband ceased work before the death of his first wife and never returned to work.
The plaintiff’s prior medical history
14. The plaintiff has a medical history including occasions of chronic back pain going back many years with investigations having identified a narrowing of disc space at L5 and S1. She continues to have low back pain and is treated with physiotherapy and massage. In August 2007, she was diagnosed with Diabetes Mellitus Type II for which she is prescribed medication. It was not argued by the defendant that these physical ailments need to be considered as part of the plaintiff’s reliance on a severe mental disturbance or disorder resulting from the transport accident.
Medical attendances following death of son in transport accident
15.
The plaintiff and her husband share the same treating general practitioner,
Dr Michael Yacoub. The plaintiff attended on Dr Yacoub on 11 December 2015, some three weeks after Yousef’s death. His clinical notes refer to her presenting as a mother who was devastated, crying and very upset by the death of her young son. Although she was offered counselling, she apparently did not then feel up to it.
Dr Yacoub continued to see her, and on each consultation, he reported her presentation as one of hopelessness and helplessness, of being pale, not sleeping or eating and very emotional with poor concentration.[14] He noted that she was frequently attending her son’s grave in Fawkner.
[14]Senior counsel for the defendant made note in the course of final address that the language used by Dr Yacoub to describe the plaintiff was very similar to the language he adopted in his assessment of the plaintiff’s husband. I have had regard to it, but any lack of originality in language, may be not much more than that, or that the author regarded the presentation of each parent as substantially the same because of the traumatic effect of the death of their son.
16. On 19 January 2016, the plaintiff was referred to Dr Al Humrany, a psychiatrist. Her husband had come under his care many years before due to depression as a result of the death of his first wife from cancer in 1991. Her husband was also referred back to Dr Al Humrany by Dr Yacoub in April 2016.
17. In a report back to Dr Yacoub dated 24 March 2016,[15] Dr Al Humrany diagnosed the plaintiff as suffering from an adjustment disorder with a mixture of anxiety and depression following the death of her son. He reported that Yousef’s death had inflicted a devastating effect on her mental health and that she was emotional, worried and overthinking. She was also tired, lethargic and lacked motivation. Although she continued to manage the household for her large family, she needed to push herself to do so. She was initially prescribed Zoloft 25 milligrams daily for a week with the dosage increasing to 50 milligrams per day.
[15]Exhibit P6, PCB 46.
18. Dr Al Humrany also referred the plaintiff on to Ms Francis, a social worker and counsellor. Ms Francis also conducted counselling sessions with the plaintiff’s husband. She provided six counselling sessions to the plaintiff pursuant to a Medicare funded Mental Health Plan.
19. Ms Francis wrote to Dr Yacoub on 30 November 2016[16] following the completion of the sessions. She assessed the plaintiff as suffering from mixed anxiety and depression, grief and loss. She pointed to symptoms including depressed mood, low motivation, social withdrawal, poor concentration, sleep disturbance together with fatigue and having expressed desperation and helplessness regarding her situation.
[16]Exhibit P5, PCB 43.
20. Ms Francis supported an immigration visa application to enable the plaintiff’s brother, with whom she was particularly close, to come to Australia to support her emotionally as a part of her psychological well-being.
21. The offender who stole the vehicle in which Yousef had been travelling as a rear seat passenger subsequently pleaded guilty to culpable driving causing death and other charges. In April 2017, he was sentenced in the County Court to six and a half years’ imprisonment with a minimum period of four years.
22. In a later report dated 30 June 2017,[17] Ms Francis recorded that the plaintiff had shown very limited improvement, something she attributed to chronic grief and the challenges associated with the loss of her son, and that she had become socially isolated.
[17]Exhibit P5, PCB 44.
23. The plaintiff was last seen by Ms Francis in July 2019.[18] The records of the consultations show they concentrated on instructing the plaintiff on the potential advantage of cognitive behavioural therapies, a mode of treatment Ms Francis had also adopted with the plaintiff’s husband.
[18]Exhibit P9, PCB 67.
24. Dr Nathan Serry, psychiatrist, assessed the plaintiff on 22 February 2018 and he prepared a report of that date.[19] He diagnosed the plaintiff with a chronic major depression with features of anxiety and of traumatisation related to the loss of her son.
[19]Exhibit P8.
25. Dr Serry noted that the plaintiff was the first in the family to be made aware of the accident involving Yousef when the police arrived at her home. He wrote too that the plaintiff was unable to be present in the room when her son’s life support was turned off. She later saw her son’s body in the mosque and prior to his funeral.
The plaintiff’s presentation following her son’s death
26. The plaintiff said her home life had been made difficult, and that although she undertakes the domestic duties and is helped by her children, she derives no pleasure from home activities. She described having experienced a “beautiful life before the accident, being active, social and engaged now she said that her life has been turned upside down.”[20]
[20]Ibid, PCB 55.
27. She described a daily preoccupation with her son in which she grieves for him and misses him terribly. She explained how he had appeared to her in her dreams on three separate occasions. She experiences intrusive memories and flashbacks seeing him unconscious at the hospital and seeing his body at the mosque. She said her other children have to stop her from her wanting to visit the Fawkner Cemetery each day to visit her son’s grave. Nonetheless she still attends the cemetery twice a week and becomes very emotional. She explained that birthdays, anniversaries are reminders of her loss and trigger severe distress. She said that her son’s clothes and belongings had been shared among siblings and friends following his death and when she sees them worn by others it is difficult for her. She says she does not have any good days. She said she has lost some interest in religious festivals. She described going through life and attending to the necessities because she has to. She feels weak and lethargic. She said she is forgetful, less well-organised in her thoughts and preoccupied by grief. She described a reduction in her appetite.
28. In response to specific questions asked of him by the plaintiff’s solicitors, Dr Serry expressed the opinion that the plaintiff suffers from a chronic major depression with anxious features and with features of traumatisation. He regarded the condition as directly related to the transport accident. He recommended that the plaintiff not only undertake counselling but that she should be under the care of a consultant psychiatrist. He recommended a review of her antidepressant and medication.
29. Dr Byron Rigby is a consultant psychiatrist whom the plaintiff attended for an independent medical examination at the request of her solicitors. His report was prepared following two consultations.[21] The plaintiff and her husband presented together. In a report prepared on behalf of the plaintiff’s husband Dr Rigby noted that the plaintiff appeared to be the more outwardly distressed of the two. Dr Rigby had reports by the plaintiff’s general practitioner, her psychiatrist and Ms Francis, as well as an independent medical examination report by Dr Serry. He reviewed Dr Serry’s report and noted that based on his analysis the plaintiff was the same as she had been when she had presented to Dr Serry in the previous twelve months, suggesting to him that the plaintiff’s condition had stabilised.
[21]Exhibit P7.
30. Dr Rigby conducted a mental state examination of the plaintiff. He noted that she became tearful while describing her loss and exhibited a depressed demeanour. His assessment of the indicia of her depressive symptoms indicated the presence of “Major Depressive Disorder of severe degree”.[22] The plaintiff told Dr Rigby that her antidepressant medication (Sertraline 50 milligrams) was assisting her.
[22]Exhibit P7, PCB 50.
31. Dr Rigby thought there was no precipitating reason for her condition other than the transport accident. He did not refer to either an incident of family violence that involved the plaintiff’s stepson, Mohammad, in the months preceding the transport accident or to the arrest on a charge of murder of the plaintiff’s son, Osama, in about March 2019.
32. Dr Rigby did not regard it as “usual for depression following a loss to continue on unabated for such a prolonged period. For this reason, the formulation is likely to be Major Depressive Disorder in relation to aberrant grieving.”[23]
[23]Exhibit P7, PCB 51.
33. The plaintiff was examined at the request of the plaintiff’s solicitors by Dr Epstein, psychiatrist, on 17 October 2019. He produced a report of that same date.[24] He identified the substantial suite of materials that had been made available to him for the purposes of his reporting.
[24]Exhibit P9.
34. The plaintiff explained to Dr Epstein the circumstances involving Mohammed. He was her husband’s youngest son from his first marriage. In the middle of 2015, he came to the family home and demanded his share of the house. She explained how her husband told him that the property would be shared between the 12 children. Mohammad then became very upset and smashed the windows and slashed the tyres of her car. She explained that a friend’s car was also damaged. She added that he had “pulled a knife on me”.[25] Police were called but, by the time they arrived, Mohammad had run away. He later returned “and raided the house and wanted to stab her and her husband with the knife. The police were called again and arrested him.”[26] The plaintiff said that she took out a five-year intervention order and as well, that Mohammed had been charged and imprisoned.
[25]Ibid, PCB 64.
[26]Exhibit P9, PCB 64.
35. Dr Epstein recorded that the plaintiff had seen Dr Yacoub on 29 July 2015, and that she had been very upset because Mohammed was in jail, although Dr Epstein wrote “her distress appears to have been about his behaviour towards her and her husband”.[27] He added that “she was offered counselling and saw a psychologist four times and took sertraline. She said that she has had no further contact with Mohamad since then.”[28] The plaintiff also told Dr Epstein that immediately prior to Yousef’s death she had continued to see her psychologist and took Sertraline, but that her distress caused by Mohammed’s violent behaviour towards her over his share of the family home had settled.
[27]Ibid.
[28]Ibid.
36. Dr Einstein reported that the plaintiff does all the housework and shopping, although a little of it appears to be done by her husband at the Victoria Market which he frequents. She and her husband share the driving of their children to and from school. Her evidence on these everyday domestic activities largely correspond with the account given by her husband in his proceeding.
37. Dr Epstein referred to the report from Associate Professor Doherty dated 20 May 2018, and his opinion that the plaintiff’s condition consists of a major depressive disorder, but whose mood symptoms were able to be included in the diagnosis of an adjustment disorder with depressed and anxious mood.
38. Dr Epstein also reported on the circumstances surrounding the plaintiff’s eldest son, Osama, and reports of his arrest and remand in custody on a charge of murder.
39. As to the manifestation of her current condition, Dr Epstein described the plaintiff as experiencing difficulty with sleep, both in falling asleep and then waking during the night and subsequently encountering difficulty getting back to sleep. He noted that her low back pain causes disturbance with her sleep as well as racing thoughts of Yousef and of Osama. She said her dreams of Yousef are pleasant but when she wakes and realises she has been dreaming, she becomes distressed. She will rise between 5.00am and 5:30am for morning prayers and she will prepare lunch for her son. She is less interested in housework, although she still does the shopping and mainly does the cooking at home. She said she visits her son’s grave at least weekly but sometimes daily and she does not socialise as much as she did. She is concerned about the safety of her children. She said she has been even more distressed after her eldest son was imprisoned but she is optimistic that he will be released after his trial.
40. She said she sees Dr Yacoub every two weeks and has three other doctors, although she cannot remember their names. She believes one of them is a psychiatrist and the other two are psychologists, whom she sees every month or two.
41. Dr Epstein wrote that the plaintiff was understandably grief stricken by the death of her son but also had developed a Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts about what occurred, distress with reminders of it, increased concerns with regard to safety and security issues for her surviving children, hypervigilance and emotional withdrawal.
42. Dr Epstein recorded that the plaintiff has had long-term problems with her low back pain and other physical health issues, but that these “do not appear to be of much significance with regard to her mental state.”[29]
[29]Exhibit P9, PCB 72.
43. In addressing the domestic disturbance and threatened violence by her stepson, whom the plaintiff said she had not seen since and against whom she obtained a five year intervention order, Dr Epstein wrote that although she was understandably distressed by what occurred, he thought that the incident does not appear to be on her mind and probably plays little part in her current situation.
44. Dr Epstein wrote that the combination of the very slow resolution of her grief, together with her PTSD, has led to a Major Depressive Disorder of moderate severity with some suicidal ideation. The condition has been exacerbated by the recent incarceration of her eldest son, Osama, but for whom, despite facing serious charges, she remained optimistic that he will be found not guilty.
45. Dr Yacoub prepared a report dated 27 February 2018,[30] noting that the plaintiff’s condition was not stable and expressed doubt it ever would be, and that she continued to think about the accident and the death of her son every night. He wrote that her depression and anxiety warranted continued treatment.
[30]Exhibit P4.
46.
Dr Yacoub wrote on several more occasions to the plaintiff’s solicitors. On 19 February 2019, he confirmed his earlier reporting and his record of referral to
Dr Al Humrany and to Ms Francis for counselling. He said that during 2017 and 2018 he continued to see the plaintiff at approximately three-monthly intervals to monitor her and to provide prescriptions for both her diabetes and her depression (Zoloft). He said on each occasion he asked after her emotional state, and her response was one of upset, depression, unhappiness, and that she was missing Yousef and “that his death has affected the relationship of the family, and that they do not communicate with each other like before”.[31]
[31]Ibid, PCB 39.
47. In reporting to the plaintiff’s solicitors on 16 October 2019, Dr Yacoub, after having reiterated the plaintiff’s clinical history, said that he had continued to see the plaintiff following on from his February 2019 report, “on a regular basis for her diabetes and other medical problems, as well as for her depression and anxiety.”[32]
[32]Ibid, PCB 42.
The defendant’s IME
48. As Dr Epstein noted, the plaintiff was seen by Associate Professor Doherty at the request of the defendant on 21 March 2018 and who prepared a report dated 20 May 2018.[33] The plaintiff told him that the death of her son was the biggest loss she had encountered in her life and that she would never be the same again, and that the pain of the loss would never go away. She said she did not like leaving home and was anxious whenever she did.
[33]Exhibit D1, PCB 4-14.
49. Associate Professor Doherty noted that the plaintiff experienced a significant and immediate reaction to her son’s death that was typical grief, however, in her case, the grief had persisted and had developed to the point that he identified features of an adjustment disorder including anger, anxiety and tension with reduced mood and motivation and a loss of competency in self. He thought that the plaintiff suffered from a Major Depressive Disorder, but that overall her mood symptoms could be adequately incorporated into a diagnosis of an adjustment disorder with depressed and anxious mood.
The legal test
50. I have gone about assessing seriousness, by considering the consequences of the injury being serious to the plaintiff, and also whether when judged by comparison with other cases in the range or spectrum of possible impairments, it is capable of being fairly described as severe. In substance, therefore, in order to satisfy the statutory test, the consequences arising from the transport accident must, in the case of the plaintiff’s mental disorder, be severe. In my view, this test conforms with what Crockett and Southwell JJ said in Humphries & Anor v Poljak [1992] 2 VR 129.
51. The Judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 provided guidance as to the meaning of “severe”. In that case, without suggesting the use of any adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition is a stronger word than “serious.” Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe”, where used was a word of stronger force than the word “serious”. Phillips JA and Charles JA made comments to like effect.
52. Accordingly, and by applying the above observations, in order for me to be satisfied that the consequences of a mental disturbance or disorder are severe, I must be able to conclude that those consequences are more than very considerable to the plaintiff: see Noonan v State of Victoria [2013] VSCA 289. In performing this analysis, it is necessary for me first, to identify and, second, to bring to account all relevant circumstances personal to the plaintiff. I must then make a value judgement in accordance with the principles enunciated in Humphries & Anor v Poljak [1992] 2 VR 129 (at 140, per Crockett and Southwell JJ) giving to each identified relevant circumstance the weight which appears to me to be appropriate. The task of assessing the pain and suffering consequences of an injury, has been held to be largely a question of impression and value judgement: Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR 592 at 628.
53. Section 93(17) of the TAA is also important because, in addition to being serious, I must be able to conclude that the relevant injury is “long-term.” I am satisfied the medical opinions support this requirement having been established.
54. I have also undertaken my task based on the requirement that my assessment as to whether the plaintiff’s injury is “serious” is to be undertaken at the time the application is heard. Section 93(6) of the TAA, states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury “is at the time at which the application is heard”, a serious injury for the purposes of the TAA.
The plaintiff before and after her son’s death
55. It is proper to note that the plaintiff’s affidavit gave only broad insights into her life before the death of her son. The fact that a person’s life may not be full of activities outside the everyday ephemera and routine obligations of life and family is not to suggest that such a life was not otherwise attendant with happiness and enjoyment, only perhaps, that in such a case, it might prove more difficult to assess the loss that has been occasioned by an injury such as this. In that sense, therefore, the view I have formed of the plaintiff including her credibility can be important. In her affidavit made 17 January 2019,[34] the plaintiff said that the quality of life that she once enjoyed has been taken away from her due to her son’s death. She struggles daily to maintain a quality of life. She thinks of her son every day and misses him terribly. He will appear in her dreams and, on some occasions, she sees herself able to speak to him, something that provides only fleeting comfort. She said that she suffers intrusive memories and flashbacks each day and sees her son’s face as it was when she saw him in hospital following the accident and prior to his burial at the mosque. That must be an awful memory to carry daily.
[34]Exhibit P1.
56. She deposed to family events including birthdays and anniversaries or larger gatherings of her extended family as triggering reminders of her son’s absence. She sees others wearing his clothing and belongings that had been shared among other family members following his death and this, too, acts a reminder of her loss. She says she is constantly depressed and never experiences good days. She has lost interest in attending religious festivals and avoids occasions where she may expect others present to be happy. She is worried about her remaining children. She is nervous when she drives.
57. She deposed that upon the recent engagement of her daughter and at a function held to celebrate the occasion, she experienced distress at Yousef’s absence.
58. In his report dated 15 February 2019,[35] Dr Yacoub wrote that when the plaintiff attended on him in January 2019, she was upset, depressed and crying and not coping well due to her daughter’s engagement.
[35]Exhibit P4.
59. In her second affidavit made 19 September 2019,[36] the plaintiff deposed that she still suffers from regular dreams in which she is able to communicate with her son. She said she has daytime memories and flashbacks of him.
[36]Exhibit P2.
60. She says that, together with her husband and a daughter, she visits Yousef’s grave site twice a week where she will become distressed and cry and pray to him.
61. She continues to see a psychologist with the aid of an interpreter, although she had not seen Dr Al Humrany recently. She continues the use of antidepressant medication.
Other stressors
62. The defendant contended that the plaintiff’s mental state was affected by the arrest of her eldest son on a murder charge. I accept, as Dr Epstein has mentioned, that it has caused her distress.
63. Osama was remanded in custody in April 2019, and the plaintiff has been visiting him weekly. She has expressed a belief in his eventual acquittal and, therefore, she has an ultimately brighter outlook for him (whether justified or not) as opposed to the ongoing and unrecoverable situation caused by the death of her son. I am satisfied that even should her optimism be misplaced, the consequences of an ongoing period of imprisonment is of a different category to the death of Yousef. She will still be able to have contact with Osama and he would be released from imprisonment at some point. Furthermore, I am satisfied that the transport accident had by the time of Osama’s predicament well caused the plaintiff’s injury, and that in all probability the matter of Osama amounted to no greater than an exacerbation by way of some increased stress to what I am satisfied was her already severe injury.
64. Dr Epstein addressed the plaintiff’s long-term problems associated with her low back pain as well as her need to treat her diabetes, but he did not think these appeared to be of much significance in terms of her mental health. In short, he separated out any organic ailments by way of cause to her mental condition to such extent as may be required.
The plaintiff is cross-examined
65. The plaintiff gave an account of her stepson’s violence at the family home. She said that prior to this particular incident “he was a very agitated person and that he had been violent before this occasion”.[37] She described previous incidents as including when he did not have money for cigarettes, he would kick the refrigerator in the kitchen and would slam kitchen cabinet doors and he “used to be a little bit violent with his brothers and sisters, and with us as well”,[38] which she clarified through the interpreter as having intended to say that he was “aggressive” and not “violent”.[39]
[37]Transcript (“T”) 56-57.
[38]T57.
[39]T57.
66. The plaintiff agreed that on the occasion in question Mohammed had used a knife. She said he had a knife in his hand “and he wanted to put it through me”.[40] She said her husband was inside “and he was coming out of where he was, he saw someone coming to see us”.[41] She said he put the knife to her chest.[42] She said her husband was inside when the incident began to happen and she was standing “out of the main door”.[43] When asked if she told her husband that his son had put the knife to her she said, “yeah, of course (foreign language spoken). (Through interpreter) Yes, as the police even saw the knife on the floor”.[44] She confirmed that Mohammad had run away but had returned.[45] She said she could not remember whether this happened the next day or a few days later but she said she went “and hid at my neighbour’s house in order for him not to see me.”[46] She said he did not have a knife when he returned. She then denied she had said that he wanted to stab her.[47]
[40]T57.
[41]T57.
[42]T57.
[43]T57.
[44]T58.
[45]T58.
[46]T58.
[47] T58.
67.
It was put to her by Mr Ruskin that Dr Epstein had recorded that she told him that Mohammed had returned, raided the house and wanted to stab her and her husband. When asked if she recalled telling Dr Epstein that, she said “I can’t remember that; but he came only once. I can’t remember.”[48] She explained that she obtained an intervention order.[49] She was asked if, following the incident, she was upset and saw her doctor but denied that she was upset.[50] She said she was not upset “because I got the-the intervention order against him.”[51] She was asked if she went to Dr Yacoub to obtain some tablets to help her because of the incident with Mohammad but she denied that occurred. Her denial is contrary to the report of
[48]T58.
[49]T59.
[50]T59.
[51]T59.
Dr Yacoub.[52] She also denied telling Dr Epstein that she had been offered counselling and saw a psychologist four times and took tablets because of the incident involving Mohammed. She denied the accuracy of the note put to her that recorded Dr Yacoub having written of her being very upset as a result of the jailing of Mohammad and of being given tablets. She once again, when asked by Mr Ruskin denied telling Dr Epstein that she had attended counselling or seeing a psychologist in respect of the incident involving Mohammed.[53]
[52]Exhibit D2, DCB 20.
[53]T60.
68. The plaintiff was also questioned by Mr Ruskin about the arrest of Osama and the effect of it on her. She agreed that she told Dr Epstein that she was very distressed about Osama saying, “I have been even more distressed after my eldest son was in prison.”[54] However, she retained her optimism that he would be released.[55]
[54]T74.
[55]T74.
Methodology of proof
69. An assessment whether a mental disorder is severe must involve and require taking into account the nature and severity of the disorder, its symptoms and consequences. In the case of a mental disorder, any differentiation between symptoms and consequences can be problematic and the utility of differentiation likely to be less. It has been observed in other cases, that the diagnosis of a mental disorder will almost certainly be heavily informed by the history, which is given, so far as it is accepted, of symptoms and consequences. It follows that an assessment of the severity of the disorder will almost certainly be significantly informed by what is accepted as being the extent of those symptoms and consequences.
70. There may well be cases where the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be counted as severe. I accept as a matter of principle that a psychiatric disorder may have severe consequences even though the sufferer has not undergone much treatment. Equally, the mere fact that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms and consequences of the disorder properly called for that level of treatment.
71. As a matter both of logic and authority, it is clear that, in determining whether the consequences of a mental injury are severe, I am required to take into account both what the plaintiff has been precluded from doing and also the retained capacity of the plaintiff to carry out tasks and functions performed before the injury. See Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSC 260 and Katanas v Transport Accident Commission [2016] VSCA 140.
The defendant’s submissions
72. Mr Ruskin understandably directed attention at two apparent aspects of vulnerability in the plaintiff’s application. The first of these is the defendant’s denial that she told Dr Epstein of having been very anxious and of having experienced depression following the incident involving Mohammad in 2015 and of her state of mind being affected to such an extent that she received some counselling and took Sertraline. I prefer the account by Dr Epstein in preference to the plaintiff’s denial. I am satisfied that it is more probable than not that the plaintiff attempted to diminish any adverse effect on her application by reason of the episode of domestic violence directed at her and her husband by Mohammad in the period prior to Yousef’s death. However, I am not satisfied that her evidence is of such a magnitude to diminish the other evidence I heard and neither has it dissuaded me that on the balance of probabilities, the plaintiff’s current mental condition is caused by the effects on her of the transport accident as opposed to these other circumstances.
73. I am satisfied that the objective evidence is that the plaintiff’s diagnosis is one of a Major Depressive Disorder and of PTSD as identified by Dr Epstein. I regard the opinion of Dr Epstein better accounts for and distinguishes the ongoing effect of the other stressors the plaintiff presented with, both before and after Yousef’s death, and their importance in the cause of her current mental state. Professor Doherty, of course, has not rejected the plaintiff as suffering from a mental disorder as a result of the transport accident but, instead, has assessed her condition as more readily explained as an adjustment disorder. Having regard to all of the evidence and observing the plaintiff, on balance, I do not agree. Furthermore, an overly acute attention to diagnosis of a specific type of mental disorder or disturbance of the mind can disguise the importance of the impact of the consequences on the functioning of a plaintiff.
74. On balance, and despite being satisfied that the plaintiff’s denials to Mr Ruskin about the effects on her from the matter involving Mohammed were made knowingly, I have also taken into account that Dr Epstein had to hand the plaintiff’s account that she required counselling because of the distress it occasioned her, but nonetheless he assessed the transport accident as the cause of her injury. I am also satisfied that the intervention required after the incident involving Mohammed that occurred approximately four and a half years before Yousef’s death did not have a long-lasting effect on her or adversely impacted her or brought serious consequences to her in her life.
75.
I am satisfied that the transport accident did not cause the plaintiff to experience merely a slow resolution of her grief from the death of her son but instead, not only did her grief not abate, it worsened. It has worsened to the extent of manifesting itself as PTSD and a major depressive disorder of moderate severity as diagnosed by
Dr Epstein. I do not think it is necessary for me to parse the meaning of the plaintiff’s depressive disorder when labelled as of “moderate severity” by Dr Epstein or to consider if there are gradations of severity. If there is some merit in doing so, I do not regard the determination of this application calls for it.
76. In answer to the submission made on behalf of the defendant that the evidence is lacking of a qualitative difference in those activities the plaintiff could engage in before the transport accident and after it by way of consequences, the criticism, whilst not lacking some merit, is I think, adequately addressed by the plaintiff’s evidence, which I have accepted, that although much of what she did beforehand she can still do and does do, it is now driven of necessity as a mother to a large family but from which activities no joy is derived.
77.
I am satisfied that the consequences of the injury to her are of a much greater invasive effect than a mere intrusion to her everyday functionality or by reason of a lack of pleasure that she is able to derive from her previous everyday activities.
Dr Epstein’s assessment is that over the entirety of her everyday life all of her activities have been very considerably adversely impacted. She thinks about Yousef constantly and there are weeks when she attends his grave every day. She continues to be prescribed Zoloft and takes it every day. Her other children are compelled on occasions to turn off videos that they may be watching that show Yousef in earlier times so as not to upset their mother. In other words, her character as a parent to her surviving children, has been adversely affected by the death of Yousef and it has had a ripple effect throughout her family. She said she is never happy or experiences periods of time akin to life before the death of her son. She is lonely and feels isolated and becomes irritable. She has lost interest in her own appearance. She experiences frequent passive thoughts of suicide, and of not waking up, and although there is no evident intent to carry through with such thoughts, the contemplation of suicide is significant. In substance the pain and suffering consequences that have been caused to her by the mental injury suffered by reason of the transport accident are severe.
Conclusion
78. For the reasons expressed, I am satisfied that the plaintiff has established on the balance of probabilities that the consequences are both severe to her and long term and I am also satisfied that when they are judged according to the range as required by me that they meet the requisite standard such that the plaintiff is entitled to the grant of a serious injury certificate in accordance with her Originating Motion.
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