Smith v Transport Accident Commission
[2012] VCC 1164
•4 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00190
| KEVIN SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17, 20 August 2012 | |
DATE OF JUDGMENT: | 4 September 2012 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1164 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Severe long-term Mental/Behavioural Disorder – Post-Traumatic Stress Disorder – Personality Disorder – temporal link between onset of symptoms and transport accident
LEGISLATION CITED – Transport Accident Act 1986, s93
JUDGMENT – Leave to the plaintiff to bring proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M R Titshall QC with Ms M Pilipasidis | Slater & Gordon Ltd |
| For the Defendant | Ms J A Dixon SC with Mr R W Taylor | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 At about 3 am on a foggy morning of 2 July 2004, the plaintiff was the driver of a semitrailer on a highway near Nhill in country Victoria. As he rounded a bend, a large truck coming in the opposite direction and attempting to overtake another vehicle, came onto the side of the road upon which he was travelling, causing him to quickly swerve. The vehicles sideswiped, although the damage was minor, including to the plaintiff’s vehicle’s mirror and lights. According to his affidavit, he found the experience terrifying, and as a result developed a severe Post-Traumatic Stress Disorder (“PTSD”). He says that as a result, his whole behaviour changed, he lost his employment and he is very significantly disabled by the disorder.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident on 2 July 2004.
3 The plaintiff claims to have suffered a permanent severe mental or permanent severe behavioural disorder in the nature of a PTSD; alternatively, an Adjustment Disorder with disturbance of emotion and conduct (“the Adjustment Disorder”); alternatively, an aggravation of an underling Personality Disorder. The application is thus brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff, his son, Benjamin Smith, and a consultant psychiatrist, Dr Nathan Serry, were called to give evidence and be cross-examined. I was informed by Senior Counsel for the defendant, Ms Dixon, that the plaintiff’s former treating psychiatrist, Dr Sylvia Jones, was to be cross-examined, but her current whereabouts are unknown. Thus, I accept her evidence, but bear in mind that the defendant did not have the ability to challenge her views in cross-examination.
5 In addition, medical reports, reports of the incident, various clinical notes and other material was tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff and his son, but rather those parts which I have relied upon in coming to the conclusions in this judgment.
6 The statutory scheme set forth in the Act, which prescribes and regulates applications of this nature, is well known and it is unnecessary for me to revisit the various relevant sections.
7 The issue in dispute in this application is confined. Quite appropriately in my view, Ms Dixon did not seek to challenge that the plaintiff’s mental or behavioural condition, as at the date of the application, was “severe”, as that expression is defined. The issue is, rather, whether, and to what extent, that condition was caused or contributed to by the transport accident. In essence, the defendant says that over many years up to the time of the transport accident, there were a range of issues in the plaintiff’s life which caused or contributed to his current condition, and while it was accepted by the defendant that the plaintiff did suffer a PTSD, the effects of that were modest, and were not significantly responsible for the plaintiff’s current condition.
Relevant Background
8 The plaintiff was born in 1960, and is currently fifty-two years of age. He was married and has three children. Before detailing various significant crises in the plaintiff’s life, I should say something about the plaintiff’s presentation and credibility.
9 The plaintiff was cross-examined by Ms Dixon. In response to relatively innocuous questions, he was explosive, aggressive and irascible. That was particularly so in respect of questions where Ms Dixon attempted to challenge him, quite appropriately, about the causative relationship between the transport accident, and his current psychological symptoms. He was, in short, almost impossible to cross-examine.
10 It is clear from the reports of many of the practitioners, in particular the consultant practitioners who have examined the plaintiff, that he has given quite inconsistent histories. For example, he has, to some practitioners, denied there was any trauma in his early childhood. I shall refer to that trauma shortly. Further, he denied there was any stress upon his relationship with his wife around the time of the transport accident, despite him having an affair with another woman who was pregnant at the time. There are other examples of inconsistencies in his histories to the doctors. As a result, I have concluded that I should have very grave reservations about accepting the evidence of the plaintiff and should, wherever possible, seek objective verification of the claims that he makes.
11 The first issue which is significant in the plaintiff’s background is his early childhood. In evidence, he said that his father was an armed robber, a strict disciplinarian, and was regularly violent towards his mother. According to his affidavit,[1] his parents were divorced when he was ten or twelve. He was bullied while he was younger. He moved out of home in his early teens and was in juvenile detention for a period.
[1]Plaintiff’s Court Book (“PCB”) 8
12 According to a report of Ms Lechner, psychologist,[2] the plaintiff claimed that he was on the streets at age thirteen and spent time in a boys’ home. His departure from home was precipitated by a poor relationship with his stepfather. He told Dr Churven, consultant psychiatrist for the defendant,[3] that he had learned to box at an early age, and got into a lot of fights. In answer to a question by me, he said that he had seen people killed.
[2]PCB 63
[3]Defendant’s Court Book (“DCB”) 289
13 There was, however, no evidence of any psychiatric treatment nor psychiatric symptoms in his youth.
14 In contrast, he gave no history of these events to a number of psychiatrists, including Dr Serry. It is difficult to know how accurate the reporting of the plaintiff’s early life is. Generally, I accept the plaintiff had a traumatic early life, and was subject to the strict discipline of his father, and saw his mother subjected to violence. I accept that he did not get along with his stepfather, and left home at an early age to commence work.
15 Thereafter, there appeared to be relative stability in the plaintiff’s life. He worked in various areas of employment, including as a shearer for approximately ten years. He then worked as an interstate truck driver for ten to fifteen years and owned his own truck for a portion of that time. He was involved in long distance haulage to Sydney and Brisbane and according to the affidavit and evidence of his son, Benjamin, was very often away from home. By the time of the transport accident, he had been married to Helen for eighteen years and had three children.
16 I had the opportunity to assess the credibility of Benjamin in the course of his evidence. I found him a straightforward and credible witness, giving a fair account of his family life before the transport accident, and his father’s psychological state thereafter. I accept his evidence. He described his father as a good person who, although away a great deal, was loving and supportive when home. He said when his father was on the road, he, his mother and his brother and sister would speak to his father every night as to the day’s events. He described him as a skilled handyman and mechanic. He said the transition after the transport accident was dramatic. Generally, he described family life as solid and supportive prior to the transport accident, and afterwards his father became aggressive, paranoid and jumpy.[4] Further, he was not a “drinker” before the accident and that developed subsequently.[5]
[4]Transcript 83
[5]Transcript 93
17 It is well known that long-distance truck drivers use amphetamines. The plaintiff accepted in evidence that he used them from time to time, but that it did not affect his ability to drive trucks nor did it have any significant affect upon his personality. There is reference in the various histories, particularly in the hospital notes, where the plaintiff subsequently attended, to amphetamine use. According to the report of Dr Churven,[6] he said that the use of amphetamines before the transport accident by the plaintiff was highly relevant and may explain the plaintiff’s altered state after, including anger, impulsivity and violent behaviour.
[6]DCB 292
18 However, there is no evidence to say that the plaintiff’s employment, or family life was affected in any way by amphetamine use, even accepting the plaintiff used amphetamines from time to time. I am not satisfied the plaintiff’s amphetamine use was significant, or caused any interference with his domestic, employment or recreational activities. Had that been so, I would have expected there to be some reference to it through prior criminal offending, or other investigation. Further, Dr Serry, in his evidence, said the following:
“… despite the vulnerability that I have been talking about, I didn’t get any history that Mr Smith had received any form of psychiatric or psychological treatment prior to the accident. Now, that to me is of some significance, that despite the use of amphetamines in the course of his work as a long distance truck driver, that hadn’t caused him to become so unwell as to come to need treatment, and anybody who develops an amphetamine associated psychiatric condition is going to require treatment; it’s unavoidable.”[7]
[7]T 131, L9-18. However, see T 105, L29 – amphetamine use may lead to problems with mood control
19 As stated, the plaintiff’s employment and domestic life appears stable until around the time of the transport accident. However, there were two matters which arose which are of significance. The first is that at some time prior to the transport accident, the plaintiff had an affair with another woman who became pregnant. On any view, this had the potential to be a very destabilising influence in the plaintiff’s life. It no doubt played a role in the breakdown of the plaintiff’s marriage which occurred in 2004, subsequent to the transport accident. The plaintiff afterwards went to live with the woman, Ms Christine Davies, although they subsequently separated because of his violence and aggression.
20 The other matter of significance is that the plaintiff had only just commenced working for the defendant truck company one day or so before the transport accident. In May 2004, some two months before the transport accident, the plaintiff was stopped by police in a motorcar, apparently for speeding, and refused to accompany the police to the police station. As a result, it would appear he suffered a mandatory two-year licence cancellation. It is unclear as to when that cancellation came into effect, or whether the plaintiff was driving without a licence at the time of the transport accident. He may have determined to challenge the allegations. In any event, he faced the real prospect of being unable to earn his living as a truck driver for a considerable period. Further, it was put to him that that reason he ceased driving for himself, and became an employee for the defendant, was that his own trucking business was suffering financial difficulties which caused him to abandon that business, carrying debt. That would, of itself, be a significant stressor. However, I accept the evidence of the plaintiff’s son, who said that the reason the plaintiff entered employment was because work for him was slow, although he kept the truck and had planned to do extra work in his own truck. If there was financial pressure, it could be a significant stressor, but I prefer the evidence of the plaintiff’s son, that he was able to keep the truck, and there was no significant disharmony in the family because of his change of work duties.
The Transport Accident, its Consequences and Medical Opinions
21 On 2 July 2004, having commenced employment with the defendant only the previous day, the plaintiff was driving a truck on a country highway near Nhill in Victoria. He described in his affidavit and evidence that, travelling at approximately 100 kilometres an hour in the early hours of a foggy morning, another truck came round a bend attempting to pass another vehicle. That other truck “side swiped” the plaintiff’s vehicle, causing damage to the mirror and lights along the side. He, undertstandably, found the incident terrifying. It was only his swerve at the last moment that a more serious collision was averted. He continued driving into a parking bay and eventually the police attended. He was taken to Nhill Hospital and remained overnight. According to the notes of the Nhill Hospital,[8] the physical injuries were minor, but the plaintiff was noted to be in shock and having flashbacks. He was said to be very distressed. Oral Valium was prescribed. He described to various practitioners that he had a sensation that he was viewing the accident scene from above, or that his ‘spirit had left his body’.
[8]PCB 158 and following
22 According to the evidence of his son, he kept driving the truck for a period, and his employment was terminated on 20 August 2004. He said this was because he had become so scared driving a truck, that he was unable to continue. This is confirmed by a report of Dr Gune,[9] who said that when he saw the plaintiff on 20 September 2004, he “experienced a lack of confidence in himself and was very afraid of driving”. That doctor referred to a diagnosis of PTSD, although it is unclear from his report whether that was his diagnosis, or that of other practitioners.
[9]Defendant’s Court Book (“DCB”) 38
23 A number of practitioners who examined and treated the plaintiff at an early time diagnosed him as suffering a PTSD. In fact, he was certified as unfit for work in October 2004 by Dr Robert Kruk.[10] For the purpose of a WorkCover claim, he was examined by Dr Monica O’Kelly, psychologist, over January and February 2005.[11] She noted symptoms of increasing distress, agitation, anger and violence, problems with sleep, being depressed and with heightened arousal. She diagnosed PTSD. She noted it was not unusual for there to be a delay in reporting PTSD symptoms.
[10]DCB 10
[11]PCB 57
24 Over a number of years commencing from 2005, the plaintiff was admitted both to Maroondah Hospital and the associated Chandler House Community Mental Health Centre. In particular in 2006 and 2007, he came under the care of Dr Sylvia Jones, psychiatrist. She noted the plaintiff was suffering a number of serious psychological health issues and that he had been treated by the Outer Eastern Area Mental Health Services. I shall not detail all of the symptoms and findings of Dr Jones, nor of the various other treating practitioners over this period. She found the plaintiff suffering from symptoms of PTSD, including anxiety, nightmares, recollections, depression and hypervigilance. She also noted difficulty with sleep, irritability and angry outbursts leading to violence. The violence led to criminal charges and she said it damaged his relationships. She noted a labile mood with fearfulness, rage and anger. She had noted the plaintiff had taken an overdose of medication with suicidal intent and was assessed by the CAT Team and was admitted as a voluntary inpatient to the Maroondah Hospital in December 2006. She noted that he had been verbally aggressive and threatening, including while admitted to the Maroondah Hospital. She thought that the early events of the plaintiff’s life had traumatised him. At that time he was on a range of significant medication, including mood stabilisers, anti-depressants and tranquilisers. She believed the plaintiff was suffering from a brain injury caused by the transport accident, and also in an assault which she said occurred in November 2005 where the plaintiff was struck to the head with a large piece of wood. Further investigations indicated that he in fact had not suffered any brain damage from either of the incidents. She thought that the plaintiff’s life had changed dramatically following the transport accident, in particular, when regard was had to his stable family and work life prior to it. She had noted that he had used alcohol and marijuana and in 2004, was involved in a long siege with the police. She thought the plaintiff would never be able to return to either full or part-time employment and that his “symptom repertoire” was entirely consistent with PTSD.
25 A Psychiatric Discharge Summary from Eastern Health[12] noted that the plaintiff had used marijuana, cocaine, heroin, morphine and amphetamines, and abusing alcohol. The diagnosis was:
“Depression, PTSD, ?psychosis, ?ABI, anti-social borderline personality traits, substance abuse.”
[12]PCB 53
26 The plaintiff was examined by Ms Carla Lechner, forensic psychologist, for the purpose of criminal charges before the Court in 2006.[13] She noted a range of symptoms consistent with PTSD and extreme depression, aggressive and abusive behaviour. She said that there appeared to be a significant deterioration in his overall functioning subsequent to his involvement in the transport accident. She diagnosed PTSD and clinical depression. In the course of the history, the plaintiff was assisted by his former wife, who gave a history:
“The couple had separated just prior to the accident. She indicated that he is ‘progressively getting worse. … He used to have a temper but not like this’. She further stated that they were married seventeen years during which he ‘never had a criminal record’. His drug and alcohol use is increasing of late, according to Mrs Smith[14].”
[13]PCB 62
[14]PCB 66
27 The plaintiff was examined by Dr Norman Rose, consultant psychiatrist, at the request of his solicitors in March 2007. He provided a report subsequent to that examination, and a supplementary report of 13 August 2012.[15] He took a history of the trauma of the transport accident and the plaintiff’s subsequent behaviour, including a police siege in October 2004, acts of violence against his wife and girlfriend and attempts at suicide. There was a further episode where the plaintiff went to a McDonalds’ restaurant and threatened people with a large knife. The plaintiff described periods of severe agitation, restlessness, anger, flashbacks, erratic sleep, use of alcohol and marijuana and gross irrational rage. He noted the very severe symptoms of PTSD, including nightmares, flashbacks and intrusive memories, together with an avoidance of the area where the collision occurred, and hyperarousal. Dr Rose said he was in no doubt the plaintiff suffered PTSD as a direct result of the transport accident.
[15]PCB 68, 76A
28 When provided with further information in 2012 about the plaintiff’s pre-accident criminal and psychological history, he said that even without such a history, he believed it was likely the plaintiff would have developed PTSD given the gravity and seriousness of the transport accident.
29 For the purposes of a WorkCover medical assessment, Dr Julian Parmegiani, psychiatrist, assessed the plaintiff as suffering symptoms of PTSD[16], although he said it was not altogether clear whether he was also suffering a psychotic illness, a drug-induced psychosis or an organic psychosis caused by head injury. He noted that usually PTSD did not require high doses of anti-psychotic medication.
[16]PCB 77
30 The plaintiff was examined by a number of consultant psychiatrists on behalf of the defendant. Dr Ian Jackson examined the plaintiff in February 2005 and August 2007.[17] Dr Jackson noted the plaintiff was a difficult historian and in 2005 noted the plaintiff was involved in episodes of escalating violence, including an eight-hour siege involving a knife. The plaintiff had reported that he had “bashed” his girlfriend. He gave the following opinion:
“On the basis of my examination I am basically at a loss. However I must comment that his manner of describing his recollection of the road traffic accident in a measured way that amounts to absolutely classic account of 1 particular diagnostic subjective phenomenon in PTSD, raises questions as to this diagnosis. That is on the basis of the information available to me I cannot make a diagnosis of PTSD. I must point out that the authors of DSM-IV specifically caution that ‘not all psychopathology that occurs in individuals exposed to an extreme stressor should necessarily be attributed to PTSD’ and that other causes of apparently classic symptoms ‘should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role’.”[18]
[17]DCB 301, 309
[18]DCB 305
31 He thought it was important to rule out whether the plaintiff had suffered a head injury.
32 In his subsequent report he noted that there was a marked change in the plaintiff’s presentation, in that he was composed, thoughtful and spoke in a slightly slowed monotonal voice which he said was consistent with antipsychotic medication. His opinion was that the plaintiff remained difficult to assess. He said that while the plaintiff presented with “text book” symptoms of PTSD, there was much inconsistent information and considerable uncertainty about whether the plaintiff was affected by PTSD. In particular, he noted that the plaintiff’s reported abuse of alcohol and cannabis, repetitive acts of violence and anti-social behaviour and other symptoms of a psychotic illness which pointed towards a diagnosis of Manic Depression or schizophrenic-type illness. He remained uncertain of the plaintiff’s formal diagnosis.
33 The plaintiff was examined by Dr Brendan Hayman, psychiatrist, in June 2012. He, like others, found him a difficult historian and noted a range of inconsistencies. At the time of examination, he noted the plaintiff was living alone and leading an isolated lifestyle. There was report of escalated use of alcohol, although the plaintiff denied any drug use. The plaintiff was on a range of medication, including Valium, Fluoxetine, Largactil (an anti-psychotic), Sodium Valproate and Zyprexa. He denied an abusive childhood to Dr Hayman. Dr Hayman doubted whether the plaintiff’s psychological symptoms could be accounted for by the transport accident. He noted significant anti-social personality pathology, hostility and aggression. Despite the history obtained, he was provided with information which showed the plaintiff had a dysfunctional childhood marked by his father’s violence and imprisonment. While he accepted there were symptoms of PTSD, he doubted whether that diagnosis could explain the psychiatric pathology. He noted, however, that the transport accident “appears to have been relatively minor”. I have difficulties with this assessment given the size of the vehicles involved, the speed at which they were travelling and, although the damage to the vehicles was not substantial, I accept without reservation that it would have been a terrifying event for the plaintiff.
34 Dr Hayman concluded the following:
“I thus suspect that while he did develop some Post-Traumatic Stress Disorder symptomatology and an Adjustment Disorder with depressed and anxious mood consequent to the accident, this was very much coloured by his underlying personality issues. By his own admission today, his PTSD symptomatology has greatly improved and he has no significant re-experiencing phenomena. Taken at face value he says he no longer drives. His main complaints currently are of depressed mood and ongoing volatility. He has benefitted from psychotropic medication.”[19]
[19]DCB 326
35 Dr Hayman noted that the plaintiff had returned to driving shortly after the transport accident and drove to Sydney. He said this warranted further investigation. He said that the plaintiff’s incapacity for work related more to anti-social personality issues and interpersonal aggression.
36 Dr Peter Churven, consultant psychiatrist, examined the plaintiff in November 2010 and provided a comprehensive report.[20] He was critical of the plaintiff’s differing versions of the circumstances of the transport accident.[21] In my view, I did not see any significant inconsistency and found the criticism inappropriate. He obtained a history of ongoing violence, the contraction of Hepatitis C, substance abuse, an early dysfunctional family life and various episodes of involvement in the criminal justice system. He diagnosed the plaintiff as suffering PTSD, Depression and a Personality Disorder with borderline and anti-social traits. He noted the major inconsistencies in the history he received from the plaintiff. He was of the view that the plaintiff’s history of amphetamine use before the transport accident was highly relevant and may explain the plaintiff’s altered mental state, anger, impulsivity and violent behaviour. By the time of his examination, he thought that the plaintiff’s PTSD symptoms had resolved to a mild to moderate level. He did not think that diagnosis accounted for the plaintiff’s major problems of alcohol and substance abuse, his violent behaviour and anti-social personality traits. He said that there were numerous indications that the plaintiff had very longstanding difficulties, including abuse by his father, the fact that he did not get on with his stepfather and finding himself in fights at an early age. Further, he determined that there had been “significant use of amphetamines during his many years working as a truck driver”. He appears to have taken the view that the discharge summary from Maroondah Hospital, in which the plaintiff gave an account of using opioid substances, amphetamines and injecting drugs, was related to the time before the transport accident. This is not borne out by the relevant discharge summary and it would appear is a reference to the time after the accident. He further noted that the plaintiff had separated from his wife and taken up a relationship with Ms Davis which he said involved them “both drinking, by his own account and in an assault and an associated police siege”.[22] Again, Dr Churven appears to relate this to a period before the transport accident. These matters, said Dr Churven, suggested a diagnosis of a significant Personality Disorder both before and following the accident. He appeared to play down the seriousness of the transport accident and said:
“While Mr Smith may well have momentarily been faced with another vehicle approaching him head-on on the curve, to describe this as a terrible life-threatening head-on collision in light of the known facts seems excessive and yet these reporters seem to accept it in an uncritical fashion.”
[20]DCB 279
[21]DCB 281
[22]DCB 294
37 Finally, the plaintiff was examined on behalf of his solicitors by Dr Nathan Serry, psychiatrist, in February 2011 and June 2012.[23] He provided a further supplementary report of 6 August 2012.[24] I also had the benefit of hearing Dr Serry in evidence. He had similar difficulties to other examiners in obtaining an accurate history. He read the reports of the other consultant practitioners and noted that prior to the transport accident the plaintiff was functioning adequately in terms of his work and marriage and determined the most appropriate diagnosis was PTSD together with a Chronic Adjustment Disorder with disturbances in emotion and conduct, which he said explained the plaintiff’s aggression and violence.
[23]PCB 87
[24]PCB 87-105C
38 In his final report, he noted that there was inaccuracy as to the history earlier provided by the plaintiff and he received details of the plaintiff’s early life. Having obtained this additional information, he said:
“With the information now provided, I do feel that it would be reasonable and appropriate to apportion a degree of your client’s psychiatric impairment to pre-existing and unrelated factors. … I would suggest that the majority of his presentation does relate to the motor vehicle accident but that some of his presentation does reflect pre-existing factors. I would suggest that between 15 and 20 per cent of his psychiatric impairment, say 17.5 per cent, should be considered direct or non-secondary and between 5 and 10 per cent, say 7.5 per cent, should be considered pre-existing and/or unrelated.”
39 Significantly, in my view, he gave evidence about whether the plaintiff’s pre-accident amphetamine use could have resulted in some psychiatric or psychotic injury. He said had that been so, the psychiatric symptoms would have been contemporaneous and would have required treatment. He said there was no doubt his family would have known about such matters.
40 Dr Serry acknowledged that the plaintiff exhibited features of a Personality Disorder, including narcissistic, borderline and anti-social features. He acknowledged that a Personality Disorder would be a reasonable diagnosis, but it would require for him to see the plaintiff over a longer period. He went on to acknowledge it was likely that the plaintiff was suffering a Personality Disorder of some type, but that did not negate the other psychiatric diagnosis, including PTSD, which he considered was more prominent. In answer to a question of mine,[25] he said the following:
“I thought that Mr Smith was a very damaged individual. I thought that he had carried with him a significant level of pre-morbid vulnerability, a vulnerability which was there before the actual accident, and that subsequent to the accident, that vulnerability had been enacted and further complicated by the effects of the accident. I did not have the sense that that very vulnerability beforehand was anywhere near as apparent in his day to day life as it has been since the accident. … .”
[25]Transcript 119, line 12
41 All in all, I found the evidence of Dr Serry impressive.
42 It is not necessary for the purpose of this judgment for me to detail all of the symptoms and consequences which are apparent in the plaintiff’s behaviour and personality to the present time. As Dr Serry said, he is a very damaged individual. There is no issue that whatever the mental or behavioural disorder with which the plaintiff is diagnosed, it reaches the “severe” level as the legislation and the authorities require. The real issue is whether and to what extent his current presentation is related to the transport accident.
Conclusions
43 This is a complex and difficult application. The issues, as I see them, may be summarised as follows:
· The extent to which the plaintiff’s early life was dysfunctional at the hands either of his father, or stepfather, including the apparent violence within the household, his father’s incarceration, whether he witnessed criminal acts and the fact that he left home at an early age;
· His use of amphetamines while truck driving prior to the transport accident;
· The breakup of his marriage and the affair with Ms Davis before or around the time of the transport accident;
· The loss of his trucking business and financial stress at around the time of the transport accident;
· The prospect of the loss of his licence and livelihood in 2004;
· Whether indeed the transport accident was a terrifying and life-threatening event;
· The accuracy of the plaintiff as an historian;
· Whether the plaintiff suffered an underlying Personality Disorder, both before and after the transport accident, and the extent to which that Disorder explains his current symptomatology;
· Whether and to what extent PTSD explains his current symptomatology;
· Whether and to what extent Adjustment Disorder with disturbances in emotion and conduct explains his current symptomatology;
· Generally, the role played by the transport accident in the plaintiff’s current presentation.
44 I accept that the plaintiff had a somewhat dysfunctional life and that he observed and even was subjected to acts of violence. I further accept that the plaintiff did use amphetamines in the course of his truck driving prior to the transport accident. However, what is significant is that the plaintiff had a stable marriage and strong employment over many years before the transport accident. There is no evidence either of an underlying Personality Disorder, or a drug-induced psychiatric disorder as a result of amphetamine use. I accept Dr Serry’s explanation that the plaintiff was a vulnerable individual, but I am not satisfied from the evidence that if he did suffer some underlying Personality Disorder, the manifestation of the symptoms presented any significant problem to him prior to the transport accident.
45 No doubt, the prospective loss of the plaintiff’s marriage because of his affair with Ms Davis, and the prospect of spending two years off the road if he lost his licence would be very significant events in anyone’s life, and no doubt in the plaintiff’s. However, again, I am not satisfied that either event, or the two in combination, could be responsible for the extraordinary change in the plaintiff’s behaviour, which occurred after the transport accident. Either event could be a significant stressor, but there is no medical practitioner levelling responsibility at those two incidents.
46 A more difficult undertaking is determining which of the various psychiatric opinions to accept. The only psychiatrist I had the benefit of hearing in evidence was Dr Serry. Any assessment in a complex case is made more difficult without hearing from the respective practitioners.
47 I have concluded that I prefer the opinion of Dr Serry and to a lesser extent, Dr Rose, and Dr Jones, the plaintiff’s treating psychiatrist.
48 I was impressed by Dr Serry’s evidence. He made concessions I would expect of an independent witness. An important aspect of his evidence, in my view, was that the plaintiff’s life had taken a dramatic turn after the transport accident and there was a strong temporal link between the accident and the onset of very severe symptoms, including not only PTSD, but also symptoms of violence, aggression and anti-social behaviour. Those later symptoms, said Dr Serry, could be accounted for by the Adjustment Disorder, which was a prominent part of the plaintiff’s presentation.
49 I was unimpressed by those practitioners who determined that the transport accident was not a life-threatening event. Given the speed at which the trucks were travelling, the fact that it was dark and foggy and the fact that there was contact between the vehicles all indicate that the plaintiff was feet, if not inches, away from a very serious head-on collision. I can well accept that he was terrified as a result.
50 I was unimpressed by the criticism by Dr Hayman of the different versions of the transport accident that the plaintiff gave, and of his attributing some of the plaintiff’s symptoms, including drug use and anti-social behaviour, to the period before the transport accident.
51 I am not critical of Dr Jackson nor Dr Hayman for the difficulty they found in coming to a diagnosis. That difficulty is understandable in the circumstances.
52 As stated, in my assessment, the plaintiff’s behaviour, conduct, employment, and family life were all stable before the transport accident. He may well have had stressors, including the breakdown of his marriage and the potential loss of his livelihood affecting him. I accept Dr Serry’s opinion that he was a vulnerable individual, and may well have had a Personality Disorder; however, his life was in control and he was able to function normally in the community. The contrast from that time through to the present is striking. He has become a violent, aggressive, suicidal and very damaged individual. All of this points to the transport accident having a very significant effect upon his current presentation. I accept Dr Serry’s assessment as to the percentage attribution between transport accident and non-transport-accident-related factors.
53 Bearing in mind all these matters, I am satisfied that the plaintiff’s current presentation is substantially related to the transport accident. Thus the plaintiff’s application succeeds. I shall make the appropriate orders.
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