Uluc by his tutor Uluc v Cakir

[2018] NSWDC 3

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Uluc by his tutor Uluc v Cakir [2018] NSWDC 3
Hearing dates:	28 September 2017
Date of orders:	18 January 2018
Decision date:	18 January 2018
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	(a)   judgment for the plaintiff in the sum of $84.60; (b)   the question of costs is reserved both as to scope and as to by whom they ought to be paid (if anyone); (c)   any party wishing to make an application in respect of costs is to file and serve a Notice of Motion and an Affidavit in support within 28 days. The Motion should reference the legislative or other provisions (if any) upon which the order is sought. A copy of the filed Motion(s) and Affidavit(s) are to be emailed to my Associate. The parties should also indicate whether they are content for the Motion(s) to be dealt with in Chambers or wish a further date to be set for the hearing of the Motion(s); (d)   order (c) is to be dispensed with in the event that the order for costs is agreed between the parties. If agreement is reached then Short Minutes of Order can be sent by email to my Associate within 28 days and the orders will thereafter be made in Chambers; (e)   in the event that an application for a costs order is not made and agreement not reached then the default order will be no order as to costs; (f)   Exhibits to be returned.
Catchwords:	MOTOR ACCIDENT – damages for personal injury – mental harm – where plaintiff was 3½ months of age and has no memory of the accident MENTAL HARM – meaning of – whether suffered by plaintiff CAUSATION – where plaintiff’s condition (if any) caused by mother’s reaction to motor accident
Legislation Cited:	Civil Liability Act 2002 Evidence Act 1995 Motor Accidents Compensation Act 1999
Texts Cited:	Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5)
Category:	Principal judgment
Parties:	Atiligan Uluc by his tutor Tayfun Uluc (Plaintiff) Ahu Cakir (Defendant)
Representation:	Counsel:   Mr H Marshall SC (Plaintiff)       Mr B Hull (Defendant)     Solicitors:    AJB Stevens Lawyers (Plaintiff)       Mallos Davis Lawyers (Defendant)
File Number(s):	2016/204281
Publication restriction:	None

Introduction - paragraph 1

The issues - paragraph 4

Circumstances of the accident - paragraph 8

Plaintiff’s medical case - paragraph 28

Defendant’s medical case - paragraph 56

The joint experts’ report - paragraph 76

Analysis of the evidence and findings - paragraph 84

Damages - paragraph 95

Orders - paragraph 102

Judgment

INTRODUCTION

1. The plaintiff claims to have suffered a psychological injury or mental harm as a result of a motor vehicle accident which occurred on 6 May 2014.

2. At that time, her mother was the driver of a vehicle in which the plaintiff, then aged three and a half months, was travelling wrapped in a blanket and restrained in a car capsule. The plaintiff was asleep at the time of the accident but awoke as a result of the collision. It was agreed between the experts that he would have no memory of the accident.

3. Breach of duty of care has been admitted and contributory negligence does not arise.

THE ISSUES

4. Although the claim is, not substantial in terms of damages, it raises a number of legal issues relating to claims for mental harm arising from motor vehicle accidents. For claims of damages in respect of mental harm suffered in a motor accident, the relevant provision of the Civil Liability Act 2002 (“CLA”) apply (s3B(2)(e) CLA). Some of the questions which arise by reason of the concurrent application of the CLA and the Motor Accidents Compensation Act 1999 (“MACA”) are:

1. whether the plaintiff suffered an impairment of his mental condition (“mental harm”, s27, Civil Liability Act 2002 (CLA));

2. if so, whether plaintiff suffered consequential or pure mental harm (s27 CLA);

3. if pure mental harm, whether the statutory limitations on recovery for pure mental harm arising from shock means that the plaintiff’s claim fails (s30 CLA);

4. if pure mental harm, whether the harm suffered by the plaintiff consists of a recognised psychiatric illness (s31 CLA);

5. if mental harm was suffered, whether that injury was caused by the fault of the defendant in the use or operation of the vehicle (Motor Accidents Compensation Act 1999);

6. if so, whether the mental harm is a result of and is caused during the driving of the vehicle (s3A MACA);

7. whether the negligence was a necessary condition of the occurrence of the harm (s5D CLA).

5. Before making findings concerning those issues (some of which will not arise by reason of the manner in which the case was pleaded and run), it is necessary to undertake an analysis of the evidence. The hearing proceeded on documentary evidence only as the plaintiff was too young to give evidence and his mother (the defendant) was not called. The fact that the plaintiff’s mother was also the defendant and the chief informant to doctors about the plaintiff’s condition did not preclude a party calling the mother to give evidence, especially as there were no known issues concerning liability. The defence was conducted by the insurer subrogated to the defendant’s rights.

6. The medical evidence contains numerous representations made by the plaintiff’s mother which ordinarily would be limited in use under s136 of the Evidence Act 1995. An application was not made by the defendant to that effect and the representations were, therefore, admitted for all purposes (s60 Evidence Act 1995).

7. Nevertheless, as the representations were not tested in cross-examination, I approach them with caution, particularly, as in most respects, there was no other evidence which corroborated the mother’s account. One option for the plaintiff would have been to call the father who presumably had been a witness to the plaintiff’s behaviour and could have corroborated his wife’s observations so as to firmly lay the foundation in evidence for the medical experts’ opinions.

CIRCUMSTANCES OF THE ACCIDENT

8. I have not been provided with the police material nor had the advantage of hearing evidence from any witness concerning the circumstances of the accident. The only source of information as to that matter is the documentary evidence relied upon by the parties.

9. The plaintiff’s Personal Injury Claim Form (part of Exhibit A, the “Claim Form”) confirmed that the plaintiff was approximately three and a half months of age at the time of the accident.

10. It is unclear who completed the Claim Form as most of it is type-written, signed by the plaintiff’s father and witnessed by Mary Gibbons of City West Medical Centre at Auburn. In answer to question 16, the following description of the accident was provided:

I was a passenger in a motor vehicle registration xxx x8R (NSW) travelling along Robyn Street, Revesby, NSW.

Whilst at the intersection of Robyn Street and Wilberforce Road, a collision occurred with motor vehicle registration xxx94 (ACT).

As a result of the collision, I sustained serious injuries.

(Exhibit A, page 70).

11. The last sentence is plainly an embellishment.

12. In answer to question 25 as to what injuries were sustained in the accident, the following appears:

Injury to neck;

Injury to right eye;

Injury to left eye;

Psychological sequelae;

Further particulars to be provided as per Rules of Discoverability.

(Exhibit A, page 74).

13. When asked how the injuries affected the plaintiff at the time the Claim Form was signed (9 October 2014) the following appears:

Nightmares;

Crying bouts;

Disturbed sleep pattern;

Further particulars to be provided as per Rules of Discoverability.

14. The Claim Form confirms that the plaintiff did not require an ambulance or attend hospital.

15. Also forming part of Exhibit A (page 79) is a photograph of a silver vehicle depicting damage to the front passenger side door, consistent with the collision described in the Claim Form. I assume without knowing for certain, that the vehicle depicted in the photograph is the vehicle in which the plaintiff was travelling.

16. The clinical notes from City West Medical Centre (Exhibit A, pages 3 – 22) include an entry for Wednesday May 7 2014 (Exhibit A, page 11). The entry reads as follows:

Dr Yasar Oner

He was involved in a MVA

Mother was the driver and the car was hit from the passenger side

OE: NAD

Reassure his mother

17. The only interpretation open on this note is that the plaintiff showed no signs of injury but the mother needed reassurance.

18. The next relevant event which may shed some light upon the occurrence of the accident is the plaintiff’s attendance with his mother upon Dr Habiboglu. Dr Habiboglu completed the Medical Certificate. He referred to the date of examination as 8 May 2014 but is plainly 18 June 2014, about six weeks after the accident. When asked for a medical diagnosis or description of injury, Dr Habiboglu stated:

Motor vehicle accident occurred on 6th May 2014. Normal examination findings at the presentation. Mother stated that there were broken glass (unclear) on his facial area.

(Exhibit A, page 19).

19. Again, the only interpretation open on this record is that there was no indication that the plaintiff was injured.

20. As for clinical findings, Dr Habiboglu recorded:

Normal physical examination findings today. An optometrist assessment of eyes recommended.

(Exhibit A, page 19).

21. The contemporaneous Medical Certificate issued 18 June 2014 is somewhat at odds with Dr Habiboglu’s report to the plaintiff’s solicitor dated 11 February 2015. Whilst the latter recorded the presence of glass particles, it contained the following additional statement which is not in any way reflected in the earlier document dated 18 June 2014:

His mother also stated he got agitated in the car following the accident. However, he appears to have now settled. He does not seem to be affected by any functional, hysterical or psychosomatic condition.

(Exhibit A, page 24, emphasis added).

22. It is unclear from the material in the evidence whether those observations attributed to the Doctor were made by him on 18 June 2014 or on subsequent occasions. It was most probably the mother, as the Doctor’s observations were limited. In any event, it is plain that whatever agitation the plaintiff suffered following the car accident settled by the time of the report of 11 February 2015. The only person who could have provided this information was the mother.

23. I also note that, on examination, Dr Habiboglu noted “he looked well and was happy and interactive on presentation” (Exhibit A, page 24).

24. On examining the medical evidence further in order to identify the circumstances of the accident, I note the description provided to Ms Tzoumacas, Psychologist, in which, by reference to the mother, it is recorded that “she reported that Atiligan had been securely restrained in his baby seat at the time of the accident and had not been physically injured” (Exhibit A, page 33).

25. The mother provided a further history to Mr Glancey, Psychologist, (seen at the request of his solicitor). In a report dated 11 October 2016, Mr Glancey recorded that “the mother said Atiligan was asleep at the time of the collision. He woke from the collision crying” (Exhibit A, page 43).

26. That is the extent of the material evidence in the plaintiff’s case going to the circumstances of the accident. It is plain from the above that the plaintiff was restrained in a baby capsule, asleep at the time of the accident. He may, as the mother suggests, have been woken by the accident, which is hardly surprising given that a collision had occurred. It is also clear that the plaintiff and his mother were sprayed with the glass as a result of the collision. Despite the allegation of injury to the neck, right eye, left eye and psychological sequelae referred to in the Personal Injury Claim Form (Exhibit A, page 74) the only injury for which compensation is sought is in respect of the psychological injury, identified by the Statement of Particulars filed 6 July 2016. In those circumstances, it would seem that the mental harm cannot be consequential mental harm as there was no personal injury of any other kind[1] .

    1. Consequential mental harm is defined in s27 of the CLA as meaning “mental harm that is a consequence of a personal injury of another kind”.

27. “Personal injury” is defined in s27 as, relevantly, including “impairment of a person’s physical or mental condition”. In the event that the plaintiff did not suffer any such impairment then he fails to meet the definition of consequential mental harm.

PLAINTIFF’S MEDICAL CASE

28. As noted, the plaintiff’s medical case is reliant upon documents contained in Exhibit A which include opinions based largely upon untested representations or statements made by the plaintiff’s mother to the examining doctor. Given the exaggeration contained in the Claim Form, albeit signed by the plaintiff’s father, I approach the statements made by others about the plaintiff with great caution. The reference I make to the Claim Form is in particular to the allegation that the plaintiff “sustained serious injuries” (Exhibit A, page 70) and the plaintiff suffered an injury to his neck, right eye and left eye (Exhibit A, page 74). None of those allegations have any merit and are not supported by any of the medical evidence.

29. Much of the evidence relied upon in the plaintiff’s case comprises reports from a treating doctor, Dr Habiboglu, and a treating psychologist, Ms Tzoumacas.

30. In relation to Dr Habiboglu, I have already referred to the first consultation which took place on 18 June 2014, resulting in a clinical note of that day and also a report dated 11 February 2015. In between those two dates, the plaintiff did not consult Dr Habiboglu in relation to the accident. In fact it was not until the 7 April 2015, almost 12 months after the accident that the plaintiff was taken back to Dr Habiboglu with any complaints made by his mother of a psychological nature. The clinical note for that attendance reads:

Mother informed me that he has been anxious whenever entering in a vehicle, he wakes up, some nights, cries and takes time to settle him. Discussed about possible psychological disturbance since the accident. Recommendde [sic] to bring him in for an assessment. A psychological assessment recommended if no improvement.

31. On 9 April 2015, two days later, the plaintiff saw Dr Habiboglu to take his 12 month vaccinations. Dr Habiboglu recorded that the plaintiff’s mother stated:

That even this morning he was anxious when they got in to their car. Tis [sic] has been happening since the accident.

32. Notwithstanding that statement by the mother, the doctor’s own observations were that the plaintiff was a very happy and interactive child (Exhibit A, page 8).

33. The next complaint to Dr Habiboglu was also incidental to an attendance for another purpose. On 3 November 2015, the plaintiff saw a GP with an upper respiratory tract infection and mild conjunctivitis. The mother took the opportunity to again state “that he gets irritable and unsettled in the car”. I do not intend to continue recording the entries in the clinical notes kept by Dr Habiboglu, GP, save for on 19 September 2016, two and a half years after the accident. At that time, the plaintiff’s mother requested that Dr Habiboglu refer the plaintiff for psychological assessment.

34. That referral resulted in a GP Mental Health Treatment Plan (Exhibit A, page 13) which identified the plaintiff’s problem or diagnosis as being “generalised anxiety”. Of course, to the extent that this is a psychiatric diagnosis, there is no evidence to establish Dr Habiboglu’s expertise to make such a finding.

35. As for the main problems/diagnosis, Dr Habiboglu recorded:

Mother describes symptoms of anxiety started after MVA. Since the accident he gets irritable whenever gets into a car, unsettled some nights.

(Exhibit A, page 14).

36. The only evidence of any anxiety and irritation was the hearsay evidence of the mother. It is significant that nowhere in the notes of the GP, was there any record made by him of observing anxiety-related symptoms. In any event, I take the view, in the absence of evidence to the contrary, that Dr Habiboglu lacks the requisite expertise to make that diagnosis. I place no weight on his opinion as to psychiatric matters.

37. The plaintiff and his mother came under the care of Maria Tzoumacas, Psychologist.

38. In a letter dated 29 March 2017, Ms Tzoumacas reported to the plaintiff’s solicitor. At that time, she had completed three treatment consultations with the plaintiff, two with the plaintiff’s mother alone and six family therapy consultations with both. Of significance, was the history provided by the plaintiff’s mother to Ms Tzoumacas that she had previously attended a psychological assessment on 22 June 2016, “for depression, anxiety, car phobia and chronic insomnia related to a motor vehicle accident (MVA) on 6 May 2014 in which Atiligan had been a passenger as a four month old baby” (Exhibit A, page 33).

39. The report by Ms Tzoumacas dated 29 March 2017 contained a number of statements and representations by the plaintiff’s mother as to the plaintiff’s behaviour in the period post-accident almost three years earlier. Of most significance, was the following extract from the report:

As a result of her own traumatic response since the MVA, Mrs Cakir reported an inability to parent effectively. She reported struggling with chronic pain in her wrists, neck, upper back and lower back that fluctuated in severity but was typically intense and severe. She stated that because of the pain, she was restricted in her ability to complete household chores like cooking and cleaning and was concerned she neglected his developmental needs. She further reported difficulties planning and organising her family’s daily routine, frequently forgetting things and becoming confused. Ms Cakir described her mood as highly agitated, low and her energy and motivation as depleted.

(Exhibit A, page 33, emphasis added).

40. Consistently with those observations, Ms Tzoumacas stated:

Mrs Cakir presented with significant distress and was completely disengaged with Atiligan. She was able to recognise her behaviour as unhelpful and contributing to his emotional distress but reported an inability to control it or engage appropriately due to her own physical and emotional intolerances.

(Exhibit A, page 34, emphasis added).

41. Despite the plaintiff’s age at the time of the accident (three and a half months) Ms Tzoumacas diagnosed the condition Post Traumatic Stress Disorder (Pre-school sub-type), by reference to DSM-5. That diagnosis seemed curious for a person of the plaintiff’s age.

42. Given the joint opinion of Mr Glancey and Dr Rikard-Bell that the plaintiff would not remember the accident, it is difficult to understand how a diagnosis for PTSD can be made out. I prefer the opinions of those experts to the opinion of Ms Tzoumacas, particularly as she did not even attempt to identify the criteria which are met in order to reach that diagnosis.

43. Ms Tzoumacas’ opinion was that the plaintiff’s traumatic experience “coupled with the lack of supportive parenting required to help him resolve his distress and process the traumatic experience, resulted in his current diagnosis of PTSD. … Unfortunately, his mother Mrs Cakir was also not provided with early support and hence her ability to provide Atiligan with effective parenting had also declined by the time she attended psychological therapy” (Exhibit A, page 35, emphasis added).

44. The fundamental flaw this diagnosis is that, as a matter of common sense and according to the experts on both sides, the plaintiff would not be affected by the trauma or stress of an event of which he had no recollection.

45. The substantive evidence relied upon by the plaintiff in his claim are the reports by Mr Gerard Glancey, Consultant Psychologist (commencing at page 42, Exhibit A). Mr Glancey prepared three reports (11 October 2016 (x 2) and 31 August 2017) and as participated in a conclave to prepare a Joint Report with Dr Rikard-Bell, Psychiatrist, retained by the defendant. In the “Summary and Opinion” section of his report, Mr Glancey recorded a number of circumstances which were traumatic for the plaintiff’s mother after recording that the plaintiff’s mother expected that the motor cyclist involved in the collision had died. Mr Glancey stated:

The mother reported to have endured frequent mental activity and frequent intrusive memories associated with the motor vehicle accident. Thoughts that the motor cyclist could have died as a consequence of the collision frequently intruded. She also reported having entertained catastrophic speculation associated with Atiligan’s involvement in the motor vehicle accident. She considered that he could have died. She experienced guilt associated with her role in the motor vehicle accident. She reported persisting emotional disturbance to be generated with the motor vehicle accident. She spontaneously reported to experience anxiety associated with car travel at the time of the consultation. The mother reported having spoken with her doctor regarding issues associated with the motor vehicle accident. She had been prescribed anti-depressant medication”.

(Exhibit A, page 45).

46. In the paragraph which followed, Mr Glancey described how the mother’s condition affected the plaintiff. It is plain from what is contained in that part of the report that their relationship became dysfunctional by reason of the multiple conditions suffered by the plaintiff’s mother.

47. That observation is reflected in the opinion of Mr Glancey where he stated:

Following consultation with mother and child, I formed the view that behavioural disturbance as was clearly evident with the child during the consultation was a direct consequence of the mother’s mismanagement. The mother’s mismanagement appeared as a consequence of her emotional disturbance attributable to the motor vehicle accident. Management of the child as demonstrated by the mother at consultation was considered likely to cultivate behavioural disturbance on the part of the child.

(Exhibit A, page 46, emphasis added).

48. Mr Glancey went on to diagnose Oppositional Defiant Disorder but stated that the behavioural disturbance of the mother was considered to be “an indirect consequence of the motor vehicle accident”. He went on to suggest treatment for the plaintiff’s mother with a view to educating her as to how to manage the child.

49. In his second substantive report (dated 31 August 2017, Exhibit A, page 51) Mr Glancey went to some effort to set out his observations of the inter-relationship between the plaintiff and his mother. It is clear that some of the oppositional traits referred to in the first report persisted during the second examination. He stated:

The relationship between the mother and child also appears to have been significantly stressed as a consequence of the mother’s pain condition and in all probability, depression.

(Exhibit A, page 59, emphasis added).

50. Mr Glancey then considered the report of Ms Tzoumacas and in particular her diagnosis of PTSD. He stated:

In considering this diagnosis, maternal deprivation is the trauma of concern not the child’s experience of motor vehicle accident.

(Exhibit A, page 59).

51. Further, he stated:

In my view the child was stressed and likely traumatised as a consequence of the mother’s disturbance following the motor vehicle accident. I agree with Dr Rikard-Bell that the child has no memory of the accident in view of his age at the time of the accident.

(Exhibit A, page 59).

52. In the end, Mr Glancey maintained his view that “Oppositional Defiant Behaviour with the child has been greatly encouraged by compromised nurturing and subsequent mismanagement by the mother. Initially the mother’s anxieties regarding the accident and the child’s involvement in the accident, together with her guilt, generated compensatory functioning. Compensatory functioning invites demanding behaviour and defiance of normal expectations by the child” (Exhibit A, page 60, emphasis added).

53. In answer to a specific question relating to causation, Mr Glancey stated:

As discussed in the report, there is evidence that the mother’s ability to nurture the child was significantly compromised following the subject accident. Loss of nurture likely disrupted the child’s functioning. Behavioural disturbance was likely generated by the altered mother/child relationship. Behavioural disturbance was subsequently reinforced by compensatory functioning on the part of the mother. The mother’s management of the child remained ineffective at the time of consultation. Behavioural disturbance is a result of the motor vehicle accident.

(Exhibit A, page 61, emphasis added).

54. That comprises the plaintiff’s medical evidence, save for the joint report between Mr Glancey and Dr Rikard-Bell which will be discussed in the reasons which follow.

55. It would appear to me that, even on the plaintiff’s own case, his action is difficult to sustain. As the plaintiff did not suffer consequential mental harm (as defined) he needs to meet the restrictive criteria under the CLA for pure mental harm. This will be considered further below.

DEFENDANT’S MEDICAL CASE

56. The defendant relied upon three reports by Dr Rikard-Bell (dated 22 June 2017, 15 September 2017 and 20 September 2017, part of Exhibit 1).

57. Dr Rikard-Bell reviewed all material provided to him in respect of the plaintiff and performed a medical examination (Exhibit 1, page 7). As expected, the plaintiff himself was unable to report anything about the accident. He had no memory of the accident. The Doctor noted that the plaintiff was quite forceful and appeared difficult for the mother to manage.

58. In his first report, Dr Rikard-Bell provided a description of the accident together with the plaintiff’s short history prior to the accident. He noted that the plaintiff’s mother reported that the plaintiff had been a normal healthy baby and appeared to be developing well. “Following the accident the mother has wondered whether he hasn’t developed as well as he should have” (Exhibit 1, page 8). When asked about his developmental history, the plaintiff’s mother told the Doctor that “he won’t sit still”. She also said “I smothered him since the accident”. She admitted that she spoils him and is overly considerate towards him. She stated “I think I smother him a lot” and “I baby and protect him”.

59. Self-care, hygiene and socialisation were normal for the plaintiff’s age. Dr Rikard-Bell noted that he can travel in a car without any major problems although at times he does not co-operate and is irritable.

60. The plaintiff’s mother told Dr Rikard-Bell that she consulted had a psychologist between five and 10 occasions “to get advice about how to manage him”.

61. In relation to the expert’s opinion, he stated:

Atiligan appears to be bright and developing well cognitively as his language is quite developed. He is an active inquisitive child. The mother has mollycoddled him and has been over-protective because of her guilt regarding the motor vehicle accident and so this has made it difficult for her to set appropriate boundaries for him.

(Exhibit 1, page 10).

62. And,

Overall I formed the view that Atiligan was a normal healthy 3-year-old child who may have features of ADHD although he is too young to make this diagnosis. I don’t believe that his problems such as being clingy at night or his hyperactive and irritable behaviour are related to the motor vehicle accident.

(Exhibit 1, page 10).

63. In Dr Rikard-Bell’s opinion the only injury suffered by the plaintiff in the accident was a small cut over his eye which healed without incident. He otherwise demonstrated normal behaviour for a three year old child. Specifically, in relation to psychiatric conditions, Dr Rikard-Bell stated:

I don’t believe that there are any diagnoses relevant to the motor vehicle accident. I don’t believe that the child at this age can be diagnosed with a psychiatric disorder …

(Exhibit 1, page 12).

64. In the opinion of Dr Rikard-Bell, the plaintiff does not require any treatment in relation to the motor vehicle accident.

65. Dr Rikard-Bell provided a supplementary report dated 15 September 2017, after being provided with a number of additional documents. He noted the diagnosis of Oppositional Defiant Disorder made by Mr Glancey, Psychologist, and commented:

The primary difference in opinion is that of how to and whether to attribute causation to the mother for the complaints of the mother about the child.

However, in my view firstly I believe that the child was too young to confidently diagnose a disorder and secondly even if a disorder existed there is no direct causal connection dating from the accident causing the disturbance in the child. In addition, in my view, poor parenting cannot be regarded as a cause from injury as parenting is a complex multifaceted experience for children. There is no evidence or objective measure of parenting apart from self-report and observation in the consulting room to assist whether the mother is neglecting the child’s needs.

(Exhibit 1, page 18).

66. In relation to the diagnosis of PTSD made by Ms Tzoumacas, Psychologist, Dr Rikard-Bell responded:

Unfortunately the child was only 4 months old when the accident occurred and so it is not possible for a child of that age to form traumatic memories and therefore be able to suffer from PTSD. An infant who is not easy to manage, in addition, does not necessarily have a diagnosable psychological disorder.

(Exhibit 1, page 18).

67. I adopt and prefer that opinion.

68. Dr Rikard-Bell grappled with the conflict in opinions between himself and Mr Glancey. He suggested one of two options which might explain the situation. The first is that the mother is not coping with the child and the second is the child does have a degree of behavioural disorder which is due to the mother not being able to cope well as a parent. In relation to both situations, Dr Rikard-Bell commented:

However in both scenarios it is my view that even if the mother suffers from a psychological injury from the accident that her poor parenting cannot be regarded as the cause of the child’s problems. In essence the core problem as I determine it to be is that the mother perceives that she has difficulty coping as a parent but this is not a diagnosable condition in the child.

(Exhibit 1, page 19).

69. I accept Dr Rikard-Bell’s opinion in this regard.

70. In a supplementary report dated 20 September 2017, Dr Rikard-Bell addressed a number of specific questions put to him by the solicitor for the defendant.

71. In answer to the first question he comprehensively refutes the suggestion the plaintiff can be diagnosed as suffering from PTSD. I accept that conclusion and his reasoning for same.

72. In answer to the second question, Dr Rikard-Bell rejected the suggestion the plaintiff had suffered any experience or event outside normal life experiences which would rule out any traumatic event. I accept that opinion.

73. The third question related to the appropriateness of a psychologist making a psychiatric diagnosis. Dr Rikard-Bell fairly made the point that he was unaware of Ms Tzoumacas’ training in relation to trauma.

74. Dealing with that last question, I note that Dr Rikard-Bell is an experienced psychiatrist who specialises in child, family and adult psychiatry. His qualifications are set out in his reports.

75. It is clear that of the three medical experts who have expressed opinions concerning this plaintiff, Dr Rikard-Bell is by far the most experienced and best qualified. Indeed, it should also be noted that, of the three, he is the only psychiatrist who specialises in child and family psychiatry.

THE JOINT EXPERTs’ REPORT

76. The Joint Report forms part of Exhibit A, commencing at page 64 and Exhibit 1, commencing at page 27.

77. The report commences with a short analysis of the injuries to the plaintiff. Both Mr Glancey and Dr Rikard-Bell agree that:

… the child has no memory of the accident. In view of the child’s age at the time of the motor vehicle accident both parties agree that the child suffered no psychological injury as a consequence of his experience of the motor vehicle accident.

78. That may be a complete answer to the plaintiff’s claim. The experts then go on to consider the question of causation. It was agreed between the experts that the mother likely suffered chronic pain, trauma-related anxiety and depression as a consequence of her involvement in the accident. They noted that the mother increasingly reported difficulty managing the child’s behaviour “both parties agreed that the mother experienced guilt as a consequence of the child’s presence in the motor vehicle accident”.

79. Senior counsel for the plaintiff sought to make much of the following extract in the Joint Report:

Both parties agreed that the impact of the motor vehicle accident on the mother greatly compromised her capacity to appropriately manage the child. Both parties agreed that the child’s functioning evolved in part as a consequence of mismanagement by the mother. Both parties agreed that the mother’s mismanagement of the child was a consequence of the subject motor vehicle accident.

80. Senior counsel for the plaintiff relied upon the use of the words “in part” in that extract and suggested that it was amplified by what followed two paragraphs later which reads as follows:

In considering other factors which likely contributed to the onset of disturbance with the child, Mr Glancey considered that the mother’s injuries following the subject accident compromised her capacity to nurture the child and likely stressed the child.

81. In my view, the second paragraph extracted does not dilute the forcefulness of the first paragraph. The experts agreed that the mother’s injuries and response to the motor vehicle accident have been factors in the child’s development. Neither expert suggests that the child suffered any psychiatric injury in the accident.

82. As for treatment, both experts agreed that the mother required treatment for psychological disturbance.

83. In my opinion, there is little difference between the opinions of Dr Rikard-Bell and Mr Glancey.

ANALYSIS OF THE EVIDENCE AND FINDINGS

84. To the extent that there is any material difference between the opinions of the two primary experts, I prefer the opinion of Dr Rikard-Bell. That is not only because of his experience as a child psychiatrist but also reference to the rational non-argumentative reasoning provided in his reports, particularly those responding to other experts.

85. In relation to Ms Tzoumacas I respectfully reject her opinion. There is no need to speculate as to the reason for her inappropriately making a psychiatric diagnosis in respect of a young child, however, in my opinion, the diagnosis simply cannot stand even on the most superficial analysis.

86. The effect of accepting the opinion of Dr Rikard-Bell and to the extent to which it is consistent with the opinion of Mr Glancey, is that I find that the plaintiff did not suffer a psychiatric injury or mental harm as a consequence of the accident, or otherwise. For completeness, I repeat and answer the issues identified at the commencement of these reasons:

(a)   whether the plaintiff suffered an impairment of his mental condition (“mental harm”, s27, Civil Liability Act 2002 (CLA));

87. I find that the plaintiff did not suffer any impairment of his mental condition as a result of the accident and does not suffer any impairment of his mental condition, in any event.

(b) if so, whether plaintiff suffered consequential or pure mental harm (s27 CLA);

88. It is unnecessary to determine this issue in light of the previous finding. As explained above, however, the absence of a “personal injury of another kind” removes the plaintiff from the class of persons who may suffer consequential mental ham. To be clear, I find that the plaintiff does not suffer from a “recognised psychiatric illness” (s31 CLA). This has the effect of relieving the defendant of any liability to pay damages even if pure mental harm was suffered.

(c) if pure mental harm, whether the statutory limitation on recovery for pure mental harm arising from shock means that the plaintiff’s claim fails (s30 CLA);

89. Given the plaintiff’s age at the time of the accident and his inability to recall what occurred, I find that even if pure mental harm existed, the statutory limitations would prevent recovery of damages. That is, it cannot be said that the plaintiff witnessed any of the maters referred to in s30(2)(a).

(d) if pure mental harm, whether the harm suffered by the plaintiff consists of a recognised psychiatric injury (s31 CLA);

90. As stated, I find that the plaintiff does not suffer from a recognisable psychiatric injury.

(e)   if mental harm was suffered, whether that injury was caused by the fault of the defendant in the use or operation of the vehicle (Motor            Accidents Compensation Act 1999 (MACA));

91. In view of my previous findings, it is not necessary to answer this question. If it was necessary to make a finding, however, it would be that any harm suffered by the plaintiff was not caused by the fault of the defendant in the manner required under the MACA. I find that any irregularities in the plaintiff’s behaviour were the result of his relationship with his mother. I rely upon Mr Glancey and Dr Rickard-Bell in making this finding.

(f) if so, whether the mental harm is a result of and is caused during the driving of the vehicle (s3A MACA);

92. In light of my previous findings, again it is unnecessary to answer this question, however, I note that any behavioural difficulties experienced by the plaintiff were not a result of or caused during the driving of the vehicle. If the plaintiff suffered from any behavioural difficulties it may be the result of the mother’s parenting methods.

93. Further, I find that the plaintiff fails to satisfy both the causal and temporal requirements. Whatever behavioural problem the plaintiff may have, developed over time in response to the sub-standard parenting provided by his mother.

(g) whether the negligence was a necessary condition of the occurrence of the harm (s5D CLA).

94. In relation to causation, I find that the test under s5D of CLA has not been met. Even if the plaintiff did suffer from a psychological injury, it was not due to the accident. In respect of this finding, I rely upon the opinions of Dr Rikard-Bell and Mr Glancey.

DAMAGES

95. That leaves for determination what damages (if any) ought to be awarded to the plaintiff. The plaintiff’s Amended Schedule of Damages claims the following:

1. past out-of-pocket expenses in an amount just under $2,400.00; and

2. future out-of-pocket expenses – treatment by a psychologist, Trauma Based Therapy, Parenting Attachment Skills Training and GP. The last item alone is valued at $84,000.00.

96. The total claim made on behalf of the plaintiff is $95,322.80. I find that the only possible injury suffered by the plaintiff in the motor vehicle accident was a small cut above an eyelid which healed without difficulty. I note that the plaintiff’s eyes were normal when first examined by his doctor after the accident.

97. That finding gives rise only to a claim for past treatment expenses.

98. I find that the following past treatment expenses were reasonably incurred and relate to injuries or suspected injuries suffered by the plaintiff caused by the fault of the defendant in the use or operation of the vehicle as a result of and caused during the driving of the vehicle:

1. consultation with Dr Oner of City West Medical Centre on 7 May 2014, the day after the accident;

2. consultation with Dr Habiboglu, GP, of City West Medical Centre on 18 June 2014 in which the plaintiff’s mother reported glass in the plaintiff’s eye;

3. consultation with Dr Ibraham Anmak, Optometrist, on 18 June 2014.

99. The cost of the attendances upon the GP total $84.60 and were bulk billed to Medicare.

100. Whilst I have a report from Mr Anmak, Optometrist, dated 18 June 2014 in which he indicated that there was no problem with the plaintiff’s eye, I have not been provided with any evidence as to the cost of that consultation. It is likely that it was charged to Medicare but, without evidence, I would be engaging in speculation.

101. I propose to enter judgment for the plaintiff in the sum of $84.60.

ORDERS

102. Accordingly, I order:

1. judgment for the plaintiff in the sum of $84.60;

2. the question of costs is reserved both as to scope and as to by whom they ought to be paid (if anyone);

3. any party wishing to make an application in respect of costs is to file and serve a Notice of Motion and an Affidavit in support within 28 days. The Motion should reference the legislative or other provisions (if any) upon which the order is sought. A copy of the filed Motion(s) and Affidavit(s) are to be emailed to my Associate. The parties should also indicate whether they are content for the Motion(s) to be dealt with in Chambers or wish a further date to be set for the hearing of the Motion(s);

4. order (c) is to be dispensed with in the event that the order for costs is agreed between the parties. If agreement is reached then Short Minutes of Order can be sent by email to my Associate within 28 days and the orders will thereafter be made in Chambers;

5. in the event that an application for a costs order is not made and agreement not reached then the default order will be no order as to costs;

6. Exhibits to be returned.

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Endnote

Amendments

26 July 2019 - coversheet - removed first names from case name

paragraph [10] - anonymised motor vehicle registration numbers

Decision last updated: 26 July 2019