Yigiter v TAC
[2020] VCC 510
•1 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03340
| SUKRIYE YIGITER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 19 and 20 August, and 9 September 2019 | |
DATE OF JUDGMENT: | 1 May 2020 | |
CASE MAY BE CITED AS: | Yigiter v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 510 | |
REASONS FOR JUDGMENT
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Subject: SERIOUS INJURY APPLICATION
Catchwords: Traumatic brain injury and psychiatric injury; whether organic brain injury meets test for serious injury under part (a); whether PTSD and/or Adjustment Disorder meets test for serious injury under part (c); some cognitive functions impaired and mood and behavioural changes; plaintiff unable to return to pre-injury occupation as self-employed driving instructor; credibility and reliability of plaintiff’s accounts.
Legislation Cited: Transport Accident Act 1987, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie [2000] VSCA 50; AG Staff v Filipowicz [2012] VSCA 60
Judgment: For plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr P Haddad | Slater and Gordon |
| For the Defendant | Mr S Smith QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 Mrs Sukriye Yigiter was injured in a transport accident on 5 September 2013. She applies for leave to bring proceedings for damages in respect of her injuries, and to obtain leave must satisfy the Court that she suffered a “serious injury” within the meaning and requirements of section 93 of the Transport Accident Act 1987 (“the Act”).
2 The application was based on either or both parts (a) and (c) of the definition of “serious injury”[1], but by the outset of the hearing, the plaintiff relied primarily on part (c), conceding that psychological or behavioural conditions had “eclipsed” the original physical injury.
[1]Section 93(17) Transport Accident Act 1997
3 Therefore, the main emphasis of the plaintiff’s case is that she has suffered a serious injury under part (c), having as a result of the transport accident suffered a Post-Traumatic Stress Disorder (“PTSD”), or an Adjustment Disorder with Depressed and Anxious Mood, and features of traumatisation, or both. To satisfy this part of the definition, she must satisfy the court, on the balance of probabilities, that she suffered a long-term mental or long-term behavioural disturbance or disorder, the consequences of which, when compared with other possible mental or behavioural disturbances or disorders, can fairly be described as “severe”. “Severe” means worse than “serious”[2], where “serious” means “more than significant or marked” and “at least very considerable”.[3]
[2]Mobilio v Balliotis [1998] 3 VR 833
[3]Humphries & Anor v Poljak [1992] 2 VR 129
4 Alternatively, relying on part (a) of the definition, she claims to have suffered an organic injury including right frontal lobe haemorrhage. To satisfy that part of the definition, she must satisfy the Court, on the balance of probabilities, that this injury has caused impairment of a body function, the consequences of which to her which can fairly be described as “more than significant or marked” and “at least very considerable” when compared with other possible impairments of body function.[4]
[4]Humphries & Anor v Poljak [1992] 2 VR 129
5 The defendant disputes her case, arguing:
(i) The plaintiff’s credit is in issue, and her account of her symptoms and their impact on her life should not be found reliable enough to discharge the burden of proof.
(ii) Any symptoms from an initial organic injury to her head or brain have long since resolved, and would not satisfy the description “serious” and “long-term”.
(iii) If any ongoing symptoms result from an organic injury, they must be disregarded when assessing the consequences of her non-organic condition.
(iv) There was an upsetting and traumatic event subsequent to the transport accident which is more likely to be the main current contributor to her mental or behavioural disturbance or disorder.
(v) If she has suffered a mental or behavioural disturbance or disorder as a result of the transport accident, the consequences are not of sufficient severity to satisfy the test under part (c) of the definition.
6 There is no real dispute that the plaintiff did suffer a physical head injury in the transport accident, although its extent, duration, symptoms and consequences are in issue. There is also no real dispute that as a result of the transport accident the plaintiff has suffered one or more mental or behavioural disturbance or disorder, although the extent, duration, symptoms and consequences of that or those conditions are also in issue.
7 It is well established that the law on this type of application is intended to maintain a division between injuries with physical consequences and those with mental or behavioural consequences[5]. It is also well established that where there are both physical and non-organic conditions, the court must identify each injury that has been suffered and determine whether the symptoms and consequences of which a plaintiff is found to be suffering result predominantly from physical or mental or behavioural conditions. If predominantly physical, the court then assesses whether part (a) of the definition is satisfied. If predominantly mental or non-organic, the court proceeds to assess whether the definition under part (c) is satisfied.
[5]Humphries v Poljak, op cit
8 In the present case, that approach is complicated by the nature of the claimed physical or organic injury, which as a brain injury has not produced much[6] impairment of physical body function[7] in the sense usually given to part (a) of the definition. If the organic brain injury relied upon is found to continue to be causing symptoms, then those symptoms are impairment of cognitive functions and possible behavioural disturbances.
[6]Except for claimed reduced sense of taste, and a bad taste in mouth
[7]Contrast if a brain injury had caused loss of sensation or paralysis, or loss of sight.
9
The key issues to be decided are:
(i) Whether the plaintiff’s evidence is sufficiently reliable for her to satisfy the burden of proof as to her symptoms and their consequences;
(ii) Whether the plaintiff’s accounts to medical and like practitioners have been unreliable in any respect that undermines the weight to be given to those opinions;
(iii) Whether or not the plaintiff suffered any mental or behavioural disturbance or disorder as a result of the accident, which has caused any long-term symptoms and consequences.
(iv) If she has suffered long-term consequences of a mental or behavioural disturbance or disorder which results from the transport accident, whether the extent of those consequences satisfies the definition as “severe”.
(v) Alternatively, whether an organic brain injury has resulted in long term impairment of body function to the extent that the consequences to plaintiff meet the test for “serious” in part (a) of the definition.
Evidence
10 The evidence before the Court included affidavits and medical reports, as set out in the attached Schedule. In addition, four witnesses gave oral testimony. As well as the plaintiff, other witnesses called for cross-examination during the hearing were one of her sons, Mr Kemal Yigiter, her treating psychiatrist, Dr Sam Asadi[8], and her treating psychologist, Dr Nadja Berberovic.
[8]Dr Seyed Assadi, as he was when he started treating the plaintiff, changed his name to Sam Asadi, as he is now known.
11 As in most applications of this nature, the credibility and reliability of the plaintiff as a witness is very important because, not only the Court, but also doctors whose opinions are in evidence, are dependent upon the plaintiff’s history of the occurrence, timing, extent and duration of symptoms, and their impact on the plaintiff’s life. As the defendant maintained a concerted attack on her credit and reliability, I shall deal with those arguments and the issue of her reliability in some detail.
12 I was impressed with both Dr Asadi and Dr Berberovic as witnesses, and as well-qualified and sensible practitioners. Both had treated the plaintiff for extended periods. Each was prepared to concede matters against the patient’s interests in this case in order to be truthful, and neither appeared to approach their role as advocating their patient’s legal case. I regarded both as well qualified to give the opinions they did, and accepted their explanations for their opinions. Their opinions differ on what the defendant argues is the key issue this case, namely whether the plaintiff’s ongoing symptoms are predominantly due to an organic brain injury or a mental or behavioural disorder. That did not leave me unable to make relevant findings on the balance of probabilities. I shall explain later my findings on that issue.
13 The plaintiff’s son appeared to be a generally credible and reliable witness, and not deliberately embellishing. It was obvious that there is considerable emotional tension within the family, including between him and his mother, and I accept that much of that has arisen from marked changes in the plaintiff’s behaviour and moods over the last few years, and its impact on her, her household and family dynamics.
14 Due to the regrettable delay in my completing this decision, I have not only re-read all documents tendered, and written submissions, and parts of the transcript, but have also refreshed my memory of the presentation of witnesses by watching portions of the recording of the oral evidence.
Credibility and Reliability of Plaintiff’s evidence
15 Mrs Yigiter made three Affidavits in English without an interpreter. She gave oral evidence in English, and I was satisfied that although English is not her first language, she speaks and understands it well, at a conversational level, and did not require an interpreter[9]. However, early in her oral evidence, I had the impression that she had not understood some of the questions[10], and I asked that questioning be in more straightforward form, by excluding questions containing multiple propositions, multiple negatives, or asserting a proposition with the word “correct?” at the end[11].
[9]T 25, lines 5-20
[10]Starting T 21, line 7 & ff
[11]Eg at T28,l 10
16 My impression of her having some limitations in understanding complicated English, was reinforced by reading that three of four neuropsychologists who assessed her stated that they could not use the usual method of estimating her pre-morbid cognitive functioning because it is not a valid method as English is her second language [12].
[12]Mr Jackson – Exhibit J at p8; Ms Mullaly Exh L at p 8; Mr Drury -Exhibit N at top p 6.
17 In final submissions, the plaintiff’s counsel put forward a number of examples of where they submitted the plaintiff had not understood what she was being asked. In the end I do not consider it is not necessary for me to make a finding on each of those.
18 Another issue which I have taken into account in assessing both her credibility and reliability is the nature of what are alleged to be consequences of her injuries the subject of this application, namely impact on some of her cognitive capacities. In particular, her ability to take in and remember recent information, and concentration generally, inevitably play some role when a plaintiff is cross-examined for a sustained and extended period, as Mrs Yigiter was[13], especially in the unfamiliar environment of a courtroom. Although the defendant disputes that she has any significant cognitive impairment from her injuries, defence counsel raised that if she did not comprehend questions there should be assessment of whether she required a litigation guardian, based on comments of psychiatric examiner Dr Weissman. That was resisted, and for reasons debated at that stage I did not consider it necessary for an assessment of her litigation capacity to be undertaken[14]. I do not find that that the plaintiff is intellectually impaired to the extent that she requires a litigation guardian, nor that she generally was unable to sufficiently understand to answer questions. However, I have made allowance in assessing the reliability of her answers for there being a degree of reduced concentration and short-term recall.
[13]I gave leave for the cross-examination to last longer than the time limited under the Practice Note.
[14]T 29, line 7- T36
19 The defendant’s challenges to the plaintiff’s credibility and reliability, underly its case on each issue. I shall deal with the matters raised, but ultimately, I consider that only one is of significance – that is, what I am satisfied was considerable downplaying of the extent of her involvement in attending and assisting as her son’s kebab shop.
20 The defendant argues that she has been at least inconsistent if not deliberately embellishing her account of her symptoms immediately following the transport accident, to the extent that diagnoses based on her subsequent descriptions should be discounted or given limited weight. These arguments centre around what is recorded in the notes taken at the Northern Hospital, a couple of hours after the accident. There is no mention of some symptoms she subsequently described, particularly feeling water-like liquid running from her nose, or vomiting as she was getting out of the car or at home afterwards, or of feeling numbness before she got out of the car, or to her face while waiting to be seen in Emergency. There was also no record of liquid from the nose or vomiting to Dr Kurnaz four days later. Further, the hospital notes record “no LOC”, whereas she has told most doctors, and deposed in her first affidavit, that she believed she lost consciousness.
21 I am not persuaded that the discrepancies in account of precise symptoms recorded in the hospital Emergency Department notes, or her general practitioner’s notes a few days later, compared with the fuller account she gave later of symptoms, are of significance in this case, either to her reliability as a witness or to the diagnoses.
22 First, there was clearly some doubt from the start as to whether she actually lost consciousness, as in the hospital notes it was also recorded “?no LOC, but vague for a time”, and her GP’s notes of 12 September record “whether she sustained LOC during the accident however is not very clear”. There was no doubt that she had knocked her head on the right side, and felt vague for a time afterwards, and if she actually lost consciousness it was for a very brief period. It is unsurprising, and in my view in no way diminishes her credibility or reliability, that she has told a number of doctors that she believes she lost consciousness. Many people do not know whether in a medical sense they actually lost consciousness if it was for a very short period, and both sets of records leave a query about whether or not she did.
23 Further, I am not persuaded that whether she technically lost consciousness, nor whether she felt fluid from her nose or vomited, undermines the general consensus of professional opinion that she did suffer a traumatic brain injury. The first CT scan was reported as showing a haemorrhage albeit described as “tiny”, and I read the neurological and neuropsychological reports as all accepting that there was such evidence of a very small bleed, confirming a traumatic brain injury. The real area of disagreement is whether it continued to cause symptoms in the long term.
24 Further evidence supporting that there were symptoms soon afterwards indicating a brain injury of significance, as opposed to a “simple” headache or neck strain, were the steps taken by her long-time GP. Dr Kurnaz was aware of her history including migraines (or stress induced headache). He saw fit to immediately order a CT scan, seek neurological opinion as to whether urgent treatment was needed, and when told not, thought the condition warranted referral to a neurologist, and that she should not continue to drive. He had not taken those steps in response to previous complaints of bad migraine symptoms. In my view this supports her description of her symptoms as being very different from previous migraines or episodes of stress.
25 I do not overlook that neurologists and neuropsychologists told of fluid coming from her nose and vomiting will have taken those into account as indicative of the type or possible degree of traumatic brain injury she may have sustained, and Dr Berberovic agreed that it was of that relevance to her. However, in my view the clear and consistent evidence that she had struck the right side of her head on the window or pillar, and the CT scan of her brain on 11 September 2013, and Dr Kurnaz’s referral of her for the scan and then to a neurologist, support the diagnoses and her credit.
26 The defendant also points to the plaintiff’s failure in her first affidavit to make any reference to the incident of January 2014, when, during a camping trip at Portland, the plaintiff spilt boiling tea over her niece causing severe burns, requiring air-lifting to the Alfred Hospital. This incident was described in detail to Mr Martin Jackson who conducted a neuropsychological assessment of her on 30 January 2014. It is clear that it was fresh in her memory and of concern when she saw Mr Jackson about three weeks later, and equally clear that she did not attempt to hide it from him. It was also mentioned to Dr Asadi who had commenced treating her before this incident.
27 She says that after a time this incident ceased to be a cause of stress or concern to her because her niece fully recovered, and her relationship with her sister and niece was restored. Dr Asadi confirms that that was also his impression. I note that she had not mentioned it to her treating psychologist, Dr Berberavic, who first saw her in September 2015, and Dr Berberavic confirmed that if it was not mentioned to her initially or over the following three years of consultations, it was unlikely still to be causing her concern. The plaintiff’s first affidavit was not sworn until March 2016, covered much detail about many events and issues, and I accept that if not still causing her distress this Portland incident was not something that would necessarily have occurred to her as requiring mention to her lawyers preparing the affidavit. I am not persuaded that failure to mention it in the affidavit some years later, or to medical examiners after that, was intended to mislead the defendant or the court, nor even that it was, objectively, misleading.
28 As to the defendant’s argument that this incident is more likely to be the cause of any ongoing symptoms of post-traumatic stress type, it is only Mr Jackson who supports that view, and his opinion was formed at a time only 3 weeks after the incident when it was clearing still occupying the plaintiff’s thoughts. Mr Jackson has not assessed her again. Dr Asadi has treated her ever since, is of the opinion that while she told him of the incident after it occurred, it has ceased to occupy her thoughts as being of concern. Further, symptoms of depression as well as post-traumatic stress, were established and required treatment before the Portland incident occurred[15] .
[15]Although there is no report from Dr Kwan, this aspect of his first report of late September 2013 is repeated in several other reports. Referral for psychiatric treatment to Dr Assadi occurred in November 2015.
29
The defendant relies on Mr Jackson noting that Mrs Yigiter told him that she had slept better for several nights before this incident, and was feeling less depressed, but felt worse again after it. I accept that she told Mr Jackson that, and those were her immediate feelings. However, he saw her less than a month after this incident, and I am satisfied that with the full recovery of her niece and repair of family relationships with her sister and niece, that incident has receded in her memory and when she recounts any nightmares they do not involve that incident. I am also satisfied from the details of consultations with Dr Berberovic, commencing September 2015, that if the incident of scalding her niece had continued to be a significant traumatic memory for her, she would have discussed it with Dr Berberovic.
30 The defendant also argues that the plaintiff has misrepresented her injuries by failing to disclose a history of migraines or headaches, as appear in her GP’s progress notes. There is a history in Dr Kurnaz’s notes, of migraines treated with medication, but not frequently, and also of headache for which she visited twice in one week, suspected of being stress-related rather than due to high blood pressure from which she has been known to suffer. She did not disclose these in her affidavits, and as headache is an ongoing symptom of which she has complained since the transport accident, they are relevant. She explains that the headaches she has experienced since the accident are in a different part of her head – the top –and she did not think they were the same. I do not consider that this omission is significant to her credit, as Dr Kurnaz who knew of her history, did not treat the post-accident symptoms in the same way as prior migraines or headaches – indeed he immediately ordered a CT of the brain, and then referred her for neurological opinion, which had not occurred on presentations for migraine or headaches in the previous six years.
31 The only issue on which I consider the plaintiff’s credibility and reliability was materially affected was in relation to the extent of her involvement in her son’s kebab-shop. That business had not commenced at the time of her first affidavit, so there can be no complaint about it not being mentioned there. It was mentioned in her second affidavit, sworn 18 December 2018, where she set out that because she becomes very bored at home, she often goes to her son’s kebab shop and sometimes does things such as collecting the bread for him and opening the door for his employees, but that she is not very productive at the shop. She said sometimes she just hangs around to see what is happening or just goes and rests in the bedroom that is at the shop. She did mention that she often gets into arguments with her at the shop as she frustrates him, and tells of throwing a chair at him at work on one occasion and that as a result of her outbursts her son often tells her to go home in anger and she is aware she embarrasses him by her behaviour when it is in front of his staff.
32 This affidavit was sworn shortly after the defendant’s video surveillance shows that she had been attending on successive days and some until late at night.
33 In her affidavit of 12 August 2019, shortly before the hearing was to start, and after she had apparently seen the surveillance with her solicitors, she explained how the kebab business had been established, and said that in order to assist her son she worked there most usually on Fridays and Saturdays in the late afternoons and evenings and this was until about May 2019. She said she assisted by collecting the bread for the business. She acknowledged that surveillance showed various occasions when she was present at the business during October, November and December 2018. She said generally she assisted with preparing of food and some serving of customers but the bulk of the serving of customers was undertaken by her son and an employee, Mr Altun, and other employees assisted in the evenings and she was present as a backup. She repeated that there were a number of occasions where she had violent outbursts against her son in anger at the shop.
34 My impression of what was on the video surveillance was that it showed Mrs Yigiter present at the shop more often and for longer periods than she had disclosed in her second affidavit, or led those treating her to believe. However, she was filmed for relatively short periods, and sometimes not seen for hours although she had apparently been followed and remained there. She was not shown actively and consistently working for the 10 or 11 hours a day that the defendant’s surveillance implies. Also, I did not consider that it showed her engaging with great energy nor any control over others. She was shown in a back room, using some cooking equipment, at a relatively slow pace. She was seen to be assisting to assemble kebabs behind the counter, but appeared to need prompting by Mr Altun as to the next step, and not taking the orders or payments. Her movements on that occasion and others, were not reflective of a person with the confidence or energy to be a main participant in the running of such a business.
35 The high point for the defendant in the surveillance material in my view is that she was shown alone at the shop, late at night, cleaning up and then locking up the shop, and leaving alone and driving herself home. Although not serving customers or being a driving force at that point, I do consider that it shows her more in control of her own activities, as well as being trusted by her son with responsibility to a greater degree than she had presented to the Court in her own evidence.
36 There is no evidence to suggest that she was untruthful when she said in the affidavit that she was not paid for her attendance or assistance at her son’s kebab shop.
37 My conclusions about the evidence of her participation in the kebab shop have caused me to approach her descriptions of her current and ongoing level of disability with more caution than I would otherwise have done. However, in light of the overall evidence, I am not persuaded that it should lead me to reject much of her evidence, nor to discount its reliability significantly.
38 Further, insofar as the evidence about her involvement at the kebab shop being for longer periods and more extensive than she had originally disclosed, impacts the issue of her incapacity for work, it does not persuade me that she is capable of engaging in sustained alternative income-earning employment. It is not disputed that ultimately she was ordered by her son to stay away as she could not control her anger or frustrations, and although present for longer periods than she had disclosed, she still seems to have used the bedroom for rest, to have gone out to relieve her tensions when she wanted, and her activities as shown there do not appear immediately useful to employers on the open market. While she has only become violent in anger towards family members, I am not satisfied that her level of activity as shown in the surveillance at the kebab shop would transfer into productive income earning work for an employer to whom she was not related, nor that workplaces of minimal pressure and stress are likely to be available other than where controlled by close friends or family.
39 My impression of the plaintiff as a witness was that she was generally trying to answer questions truthfully, including when those answers could be taken to be against her interests in this case. Her counsel submitted that she was guileless in this regard. I did not regard her evidence about the circumstances of the accident as lacking credibility or reliability, and inconsistency with the Northern Hospital records was understandable and did not in my view make her version less likely. However, on the issue of the extent of her attendance and participation in her son’s kebab business from about January 2018 until about May 2019, I did regard her affidavit accounts as having significantly understated her involvement, and that she had also understated it to doctors including those treating her. This finding caused me to approach her account of those activities, and some other matters, with more caution than I otherwise would have done. However, there was other evidence which in my view supported most of what she said.
Findings as to Plaintiff’s background and pre-injury circumstances
40 Mrs Yigiter is now aged 56. She was born in Turkey, where she commenced primary school, but only for a few months before first moving to Australia with her parents and siblings. She completed her primary education and started secondary school in Australia, but during her first year of secondary school, her family decided to return to Turkey. She completed three more years of secondary school in Turkey. She left school at age 16, married at 17, and soon afterwards she and her husband moved to Melbourne.
41 Back in Australia, Mrs Yigiter worked as a labourer for a sewing company, then as a machinist. After the birth of her first child, she returned to the sewing factory, but after the birth of her second child, she began to sew piecework at home. In about 1988, her family returned to Turkey for about a year, then returned to Australia in about 1989, and she resumed working as a machinist from home until about 1993.
42 In the early 1990s, Mrs Yigiter decided she could improve her lot, and undertook and completed several business studies courses, and to qualify herself to run a driving-instructor business. She became licensed to do so, and from about 1995 she started her own business as a driving instructor, which she was still running at the time of the transport accident.
43 From 2008, she also worked in a sheet metal fabrication business operated by her husband and two of her sons. She did the administration, book-keeping, advertising, and job-seeking, and this occupied about one day a week of her time. She worked as a driving instructor about four days a week.
44 She was also performing the traditional role of homemaker, as a wife and mother of four sons, three of whom were still living at home at the time of the transport accident, and the youngest still at school. She did most of the cleaning and cooking, including dinners for which she expected the family to gather. She also engaged actively with extended family, especially her two sisters and their families, and there were often family outings of various types, and a tradition of a yearly summer camping trip with her sisters’ families to Portland.
45 Mrs Yigiter had also been active in the Turkish Association in Broadmeadows, as its original Secretary, doing volunteer religious teaching, and regularly attending events organised by that Association. Some people came to her for advice in setting up a business, and she enjoyed and took pride in having established her own business and helping manage her husband’s.
46 She had kept fit by walking in her spare time. She was observant in her religion. She was a keen reader of books.
47 She had some longstanding health issues, but I am satisfied] that none of them interfered with her work or general activities at the time of the transport accident. Apart from surgery in 1983 and 2002, from which she had fully recovered, she developed Diabetes during her last pregnancy, and in about 2008 was diagnosed with Type 2 Diabetes. This was controlled with medication. In 2011 she was diagnosed with Hypertension. This also was controlled with medication, and monitored by her GP, and these conditions did not restrict her day-to-day activities.
48 As already mentioned, she had a history of suffering migraines, and headache attributed to stress, with attendances for these recorded in her general practitioner’s records of consultations since 2006[16]. Attendances for migraines occurred once in 2006, once in 2007, and the next mentioning migraine in mid 2011 when it was noted she had used particular medication in the past with good results, and that was prescribed. Three days later, the notes record her headache persisting but improved compared with previous attendance, and she was stressed and anxious, being under a lot of stress recently due to variety of reasons including her husband’s health problems. The next report of headaches was almost a year later, in June 2012, and it was noted her blood pressure was much better and the possible cause was underlying other stressors. In March 2013 she requested Valium for nerves at night. A small dosage was prescribed to be taken at night, and it was noted she was aware of impairment for driving. The last attendance before the transport accident for a migraine was in May 2013 when the same medication was prescribed.
[16]Exhibit 8
49 On cross-examination about this she agreed she had suffered migraines and taken medication, at times daily as a preventative. She described the migraine pain as different from, and in different parts of her head than, the post- accident headaches which she describes as being at the top of her head. She accepted that she had had a bad migraine episode since the accident, and accepted that what was in Dr Kurnaz’s notes would be correct.
50 Although she had not disclosed these previous symptoms in her affidavits, nor it seems to doctors who first saw her after the accident, I am satisfied that they did not prevent her from an active life domestically, socially, and working as a driving instructor, before the transport accident. I am also not convinced that she was deliberately lying or misleading by not mentioning migraines, as I accept that she regards them as being different from the headaches she claims started after the accident and have continued frequently and to be debilitating ever since.
51 I am satisfied that prior to the transport accident in question, Mrs Yigiter was leading a busy and active life running her household and family, engaging in wider social activities with extended family and through the Turkish Association, running her own driving-instructor business, and also performing the administration and bookkeeping work for the business being run by her husband and older sons.
Transport accident
52 On 5 September 2013, Mrs Yigiter was driving her instructor’s car to collect her next driving student, when it was hit from behind while stationary. The impact was to the left side of the rear of her car, and sufficiently forceful to cause her car to be “a write off”. On impact, she hit the right side of her head on the driver’s side window or pillar. It is unclear whether she actually lost consciousness, but she became aware that there was someone trying to help her out of her vehicle, which she resisted. She claims to have felt a sense of numbness all over, but then to have regained feeling, to have felt “water-like liquid” coming from her nose, and that she vomited as she got herself out of the car.
53 I am satisfied that there were people who observed the collision and came to her aid, and that she was told by someone that an ambulance had been called. I see nothing surprising or undermining of her account that she did not try to ring an ambulance or police herself. Similarly, it is not surprising that she did ring family members, and when her son arrived and an ambulance had not, she let him drive her home.
54 I am also satisfied from her evidence that at her home she continued to experience headache, and was vomiting, and felt some numbness on the side of her face, resulting in a decision that her husband should drive her to the Northern Hospital. That hospital records her being seen about 5.45pm – whether that is the time entered by the triage nurse or the doctor who examined her does not seem to me at all inconsistent with her account. She concedes that at that stage she did not think she had been seriously injured, but I infer that whether it was ultimately her or her husband’s decision, her ongoing symptoms were of enough concern to them to warrant her going to the hospital, and waiting there some time to be medically examined, despite this disrupting the family arrangements for her youngest son.
55 The hospital recorded her presenting problem as “injury - head (face/skull/head) as the driver of a car involved in an MVA that day”, and “hit right side of head on window; no loc ”. The diagnosis was sprain or strain of her neck. However, as part of the history, it was recorded “ ?no loc, but vague for a while after striking her head”. She had right ongoing head pain, abdo chest pain had settled, her GCS was normal, she had reasonable range of movement of her neck, although pain on the right side neck into the scalp. She was discharged with recommendations for rest, icepacks for 20 minutes, as often as needed over the next two to three days, and prescribed Panadeine and Ibuprofen for pain, and told to take care with sleeping position and use a rolled towel to support the neck.
56 As symptoms persisted, four days later she visited her regular general practitioner, Dr Kurnaz, who, due to ongoing complaint of headache, referred her for a CT scan of the brain. This was performed on 9 or 11 September and apparently reported as showing a tiny haemorrhagic area involving the grey matter of the right upper frontal region measuring 2.9 millimetres in diameter[17]. Dr Kurnaz reports discussion with the local neurosurgical unit, and no active treatment being recommended. Mrs Yigiter says that she was told it was a “complicated” haemorrhage. A second CT scan some days later did not report any haemorrhage, and an MRI of the brain conducted 30 September 2013 at the request of neurologist Dr Kwan, was reported as being within normal limits with no signs of previous intracranial haemorrhage or trauma identified.[18]
[17]As quoted by Dr Stark
[18]Exhibit 3
57 Dr Kurnaz prescribed medication to assist her with sleeping, and for pain. He referred her in mid-September for neurological opinion, and a more urgent appointment for that was arranged with Professor Patrick Kwan. Dr Kwan saw her between late September and November 2013[19]. He is quoted by other doctors who have seen his reports, as describing her as depressed, and advised psychiatric opinion. He apparently diagnosed post concussive syndrome following a head injury. Apparently on Dr Kwan’s recommendation, Dr Kurnaz referred her in November 2013 for neuropsychological assessment by Mr Martin Jackson[20]. Dr Kurnaz also referred her to a psychologist, and in November 2013, for psychiatric opinion and treatment to Dr Sam Assadi[21], who has treated her, intermittently, ever since. Mrs Yigiter did not find the initial psychologist helpful[22].
[19]No reports from Dr Kwan were tendered, but four were referred to and partially quoted in reports that were tendered.
[20]Assessment carried out 30 January 2014
[21]Dr Asadi was at that time called Seyed Assadi but has since changed his name to Sam Asadi.
[22]More than one psychologist’s name is mentioned during the first year or so after the transport accident.
58 In 2015 she was referred for psychological treatment to Dr Berberovic, who is qualified not only as a clinical psychologist, in which role she has been treating Mrs Yigiter, but also as a neuropsychologist, and has brought both skills to bear on her treatment of Mrs Yigiter. Mrs Yigiter has been attending Dr Berberovic, at varying intervals, up to the time of the hearing in August 2019, but it was anticipated that those consultations would soon cease.
Consequences
59 Mrs Yigiter describes that although she initially thought she would buy a replacement car and notified her clients that she would resume teaching driving in about two weeks, she suffered bad headaches, became very forgetful, and disorientated as to where she was while driving, such that she got lost driving in a familiar area, and could not find her house. She was aware that her concentration and judgement had become poor, felt unable to enter into negotiations to purchase another car, and she discussed with her general practitioner her fitness to drive. As a result, Dr Kurnaz wrote to VicRoads on her behalf to temporarily suspend her driver’s licence, and she handed in her licence for about 10 months. Dr Kurnaz’s records confirm these discussions on 17 September 2013.
60 She continued to report headaches, which occur suddenly and sharply at times, and also in the form of an ache that increases over time. At times, these are accompanied by dizziness and/or nausea. She said in her first affidavit she experiences headaches about twice per week and when they are particularly bad she cannot do much and tends to take medication and lie down in a dark room until the pain subsides.
61 From early treatment by Dr Kwan, she has been described as having signs of disinhibition, such as becoming “too talkative”, or reacting inappropriately in public. At times she is described as withdrawn, of subdued mood, and tearful.
62 Dr Seyed (now “Sam”) Assadi, whose first consultation with her was in December 2013, diagnosed Post Traumatic Stress Disorder, as well as a brain haemorrhage. He prescribed antidepressant medication, varied over the intervening years in type and dosage, and has continued to treat her, although the frequency of consultations has varied.
63 She complains that her sense of smell and taste has deteriorated since the accident and has a bitter taste in her mouth since then. She reacts badly to loud noises, which remind her of the transport accident. She has difficulty sleeping, finding it difficult to get to sleep because her mind is not relaxed, and also waking up throughout the night, sometimes jumping up in a panicked state. As a result of this restless sleep, her husband and she now sleep in different bedrooms, and this has created tension in the marriage. She feels tired and lethargic during the day and tends to rely on medication to get her to sleep.
64 She has difficulties with memory and concentration, including struggling to write down instructions correctly because of almost instantaneous forgetfulness. This has undermined her ability to do the administration work for the family’s business, and also impacted her ability to work in her son’s kebab shop. She also struggles with decision making, both at the family level and business level.
65 She describes, and is supported in this by her husband’s affidavit, and her son’s evidence, that she becomes extremely frustrated, and angry to the extent that she loses her temper and lashes out physically against family members. In particular, in the context of being present at her son’s shop, she is described as having thrown a chair at him, and on several occasions throwing or striking at him with knives. She describes these as like having an out-of-body experience. I accept that she is deeply ashamed of acting in this way, especially when it has occurred in front of staff at her son’s shop.
66 She says, and not only her husband and son confirm but also her long-time general practitioner, that she has changed as a person, as angry physical outbursts were not part of her behaviour or patterns before the accident.
67 Within the household, she is able to do much less, feeling fatigued and less able to organise things, and one of her sons has taken over most of the cooking. The household is no longer run to her standards, and it is clear that there is much tension now in her household, which used to rely on her energy and organisation of family members.
68 Although Mrs Yigiter regained her driver’s licence in mid-2014, she has only been driving locally and for short periods, as she finds she gets fatigued, and lost. She becomes hypervigilant and anxious when riding as a passenger. She has not resumed her own business, nor engaged in any way as a driving instructor. I am satisfied that it is not only her opinion but that of every professional examiner who has treated or assessed her, that she has remained totally unfit to resume driving instructing, due not only to problems with concentration, and the need to think and react calmly and quickly, but with hypervigilance as a passenger, and that she has lost the ability to interact calmly and patiently with students when under the stress.
69 She says she becomes nauseous and has vomited as a result of being a passenger in a car. Her psychologist had given her breathing exercises and other techniques which assisted her in the car, however they were not sufficient to enable her to do extensive driving, including teaching others to drive, as she used to do.
70 I also accept that she has socialised much less than she used to do, becoming worried she will forget people’s names or commitments made to them, and self-conscious about what others know about her behaviour after the transport accident. She has also lost her sense of self-esteem within the Turkish Association in Broadmeadows.
71 She has also suffered depressive symptoms and says she has contemplated suicide. Although those thoughts ceased with medication, she feels ongoing guilt for ever having such thoughts.
72 She says she has lost both concentration and her judgment when dealing with business affairs, and has made unwise loans – one in particular soon after the accident for about $18,000[23] – which caused her husband to become angry with her, and which they had great trouble recovering although they eventually did. She no longer is trusted by her husband and son to do the administration and book-keeping for the family business, and her husband says an accountant now does this work.
[23]Some mentions of $22,000
73 In January 2018, her son Kemal opened a Kebab-shop business, for which she and her husband provided very considerable funds. From about the time it opened, until May 2019, she used to go to the shop, and although unpaid, would be present and assist with some tasks. She has said that she would go there to overcome being bored at home, and as she wanted to assist him, and as she and her husband were keen to help this son succeed in this business. The extent of her role there became the central focus of attacks on her credit as a witness. I am satisfied that in about May 2019 she ceased attending there, because such tension had developed between her son and her about her behaviour and role in the shop, that another employee was to be provided with a car to do her main task of collecting bread, and that her son ordered her not to attend from May 2019. Her psychologist noted the positive side of her no longer attending the shop.
74 She has not engaged in any other work since the transport accident.
Medical evidence
75 Numerous medical reports from practitioners in a range of specialities – both treating and medico-legal examiners – were tendered, and I have recently re-read them all to consider this decision. I shall not summarise each in detail. I have reached the view that much of the analysis of differences undertaken in the hearing and submissions is ultimately only marginally relevant to deciding the real issues this case.
76 The plaintiff’s long-standing general practitioner, Dr Kurnaz, reported[24] in July 2019, that in the almost 6 years since the motor vehicle accident, his patient has been to multiple neurological, psychological, psychiatric and neuropsychiatric assessments and consultations, remained on Escitalopram daily, and continued to access psychiatric and psychological therapy. She has remained constantly troubled by memory problems, mood disorders consisting of anxiety, depression and irritability, and concentration difficulties, which have affected her relationship with her family, children and friends, and she has been unable to resume her job as a driving instructor, which she loved “so much”. Dr Kurnaz noted that prior to the accident, there were no obvious such neurological symptoms or diagnoses, and she had not been referred previously to any neurological or psychiatric assessments. Dr Kurnaz believed it would be unrealistic to expect any significant improvement in the foreseeable future as there had not been any over almost 6 years. Dr Kurnaz did not give an opinion on whether organic or non-organic conditions were the main contributor to her ongoing symptoms.
[24]Exhibit H – 25 July 2019
Neurologists
77 Mrs Yigiter was referred for neurological opinion and treatment by Dr Kurnaz in September 2013, to Professor Patrick Kwan. No report from Dr Kwan was tendered, but his reports are quoted in other medical reports[25]. He ordered an MRI of her brain, performed 30 September 2013, which was reported as within normal limits, with no signs of previous intracranial haemorrhage or trauma[26]. Dr Kwan apparently diagnosed post-concussive syndrome. On first presentation he noted symptoms of depression, then on next occasion she was “too talkative”, then on next consultation she was withdrawn, of reduced mood and self-esteem, tearful and suffering poor concentration. He recommended referral for psychiatric treatment[27].
[25]In particular, 5 reports are quoted by Dr Gibbs, covering September to late Nov 2013
[26]Exhibit 3
[27]These details contained in report of Dr Gibbs. Most consultants make reference to Dr Gibbs noting depressive symptoms, and diagnosing post-concussive syndrome.
78 Professor Mark Cook, neurologist, examined the plaintiff initially for a joint medico‑legal assessment in September 2015, and examined her again in 2019 and provided further reports. He did not have available any of the radiological scans but noted what they were reported as showing. His opinion was that Mrs Yigiter was involved in a serious motor vehicle accident in which she sustained a closed head injury, and that although the reported radiological features suggested petechial haemorrhage in the frontal lobe, she possibly incurred a more significant injury than the mild features indicated. He noted differing opinions between neuropsychologists as to whether cognitive impairment resulted from that injury. He concluded that she probably did suffer a mild head injury in the accident and that some of her complaints were organic in nature and related to that injury, however, most of her disability when he saw her in 2015, and again in 2019, related to the psychiatric aspects of her response to the motor vehicle collision and the head injury suffered in it. From a neurological point of view, Professor Cook considered there was unlikely to be significant change, and the plaintiff would be suitable for alternative occupations, but her psychiatric condition might be more relevant to such capacity.
79 On review in 2019, Professor Cook noted the further neuropsychological report of Mr Drury, and the reports of ongoing treating neuropsychologist/psychologist, Dr Berberavic. He thought it most probable that Mrs Yigiter she did suffer a significant head injury in the accident and that some of her complaints are likely to have an organic basis, although the bulk of her problems relate to a psychological reaction. He thought there was no question that she has become significantly restricted on account of these changes which clearly relate to the motor vehicle accident, and thought she would require ongoing psychiatric support but the prognosis for further significant improvement was poor. He was asked to review the surveillance material, and the affidavits, and said they did not change his earlier opinion. He noted the evidence that she did attend and assist in some of the activities of her son’s kebab business up to May 2019, noted that Mr Altun said in his affidavit that, while she was attending work, it was difficult because of marked changes in mood and behaviour, particularly with aggression towards her son and that her attendance had diminished after May 2019. He confirmed that the fact she was engaged in some work in the kebab shop did not really affect his interpretations significantly.
80 Associate Professor Richard Stark examined the plaintiff in June 2019[28] for the defendant. He took a history of the circumstances of the accident and the immediate aftermath, that she was first taken home then feeling worse, was taken later that day to the Northern Hospital where the history is recorded of no loss of consciousness, but she was vague for a while immediately after the incident, was able to self-extricate, and that at hospital her GCS was 15. Due to ongoing symptoms she saw her general practitioner and was referred for a CT scan of the brain done on 11 September 2013. Although he did not see the films, the report referred to a tiny haemorrhagic area involving the grey matter of the right upper frontal region measuring 2.9 millimetres in diameter. Dr Stark was provided with further reports including from Professor Patrick Kwan who observed that a CT scan three days later, and subsequent MRI ordered by Dr Kwan were to be normal, and the latter that there was no sign of previous intra-cranial haemorrhage or trauma. Dr Stark outlined the symptoms of which she complained over the intervening period and at the time she saw him. He concluded that she would be regarded as having suffered a minor, but not entirely trivial, head injury of a type which typically would not lead to ongoing cognitive impairment of organic type. He saw a discrepancy between the severe cognitive difficulties she describes and an organic type head injury. He concluded that the ongoing cognitive difficulties that she describes are unlikely to reflect organic brain injury and are much more likely to be a consequence of psychiatric reaction to the accident. He noted depressive symptoms, and indeed that she had been treated on an ongoing basis by Dr Assadi. The prognosis for any organically based neurological issues should be excellent.
[28]Exhibit 6
Neuropsychologists
81 Mr Martin Jackson undertook a neuropsychological assessment on the plaintiff on 30 January 2014, on referral from her treating general practitioner[29]. He described her as providing a highly detailed account of what had occurred in the transport accident and since, including her perceptions of her ongoing problems. By the time he saw her, she had been referred to Professor Kwan for neurological opinion, but no further neurological treatment was recommended by him. She had also been referred the previous month to Dr Assadi for psychiatric treatment.
[29]Exhibit J
82 She recounted to him two upsetting occurrences since her accident. The first was that she made an inappropriate loan of more than $20,000, feeling she had been “fooled” by a particular man, and this had heightened tension between her and her husband, and undermined her confidence in her previously sound judgment about business decisions. Further, on a regular family camping trip to Portland that January, on which her sister had encouraged her to go, there had been an incident in which she was passing a very hot cup of tea over her niece and the cup broke and her niece suffered scalding burns, serious enough to require her to be taken to the Warrnambool Hospital and then air lifted to the Royal Children’s Hospital. Her sister blamed her and pointed out that she was usually careful and safe, causing the plaintiff to feel awful and her anxiety to rise. By the time she saw Mr Jackson, her niece had recovered well, and the plaintiff was able to look at the incident as occurring after she had begun to feel better and sleep better. Mr Jackson also recorded her saying that she had been sleeping at nights and feeling better in the days leading up to this incident.
83 Mr Jackson carried out various cognitive testing. Certain functions were much lower than others, however he concluded that because most were within the low-average to average range, there had been no ongoing impairment suffered as a result of any injury in the transport accident. This was because he estimated her pre-morbid likely intellectual skills as in the low-average to average range, because of her limited schooling and occupational history. He did find weakness in the area of attention to visual detail, in basic language skills (vocabulary and reading) and her verbal intellectual skills (vocabulary, general knowledge and verbal abstract reasoning) were within the extremely low to borderline range.
84 Overall, Mr Jackson noted that clinically she presented as quite distressed about the effect that the accident has had on her and he felt there was clear evidence of a mood disorder (depression) and ongoing stress related to the accident and subsequent events. She reported symptoms suggestive of severe depression and anxiety as well as moderate stress on self-report questionnaires. He considered she presented clinically with appropriate test‑taking behaviour, so considered her neuropsychological profile to be valid and reliable.
85 He concluded that there is no doubt that she suffered a very mild (complicated) TBI in the accident, however, could be expected to have recovered well if not fully within three months. As her cognitive difficulties had “grown” over the time, going against the general expectation that they would improve, he felt that the ongoing difficulties were more likely due to her mood disorder, namely a psychological condition, and not to the TBI. He recommended treatment focus on her mental health disorder(s), noting she was receiving medication for depression and he recommended continued treatment and reviews by her psychiatrist and also that she commence therapy with a clinical psychologist. He considered that her mental health problems were clearly accident-related.
86 Ms Elizabeth Mullaly, clinical neuropsychologist, assessed the plaintiff for the defendant in May 2015.[30] Ms Mullaly had a copy of Mr Jackson’s assessment of 15 months earlier, and carried out her own testing and noted that the range of results on the same tests were very similar to Mr Jackson’s findings. However, her analysis differed. First, she noted that there were inconsistencies through his report as to whether his findings on testing were within the low-average to average range, or rather borderline range, and she put more in the borderline range. She disagreed with his assumption that Ms Yigiter’s premorbid intellectual functioning was in the low-average to average range, and concluded that based on the plaintiff’s educational achievements, occupational background and relevant test scores, Ms Yigiter’s premorbid functioning was likely to have been conservatively soundly in the “average” range. There was a caveat that lower scores were considered to be acceptable on verbally-based tasks due to English not being her first language. Finding as she did a likely higher pre-accident capacity, meant that she concluded that there was more impairment following the accident than Mr Jackson had.
[30]Exhibit L
87 Based on the WAIS‑IV, her full scale IQ was 74 which is in the borderline range and below expectations. Overall Ms Mullaly summarised the neuropsychological results as highly variable. She found Ms Yigiter demonstrated significant difficulties with immediate memory span, mental arithmetic and word definitions, suggesting the possibility of some left hemisphere parietal dysfunction, even allowing for her language background. Further, she found that various difficulties suggested impairment of the right frontal lobe, namely problems with non-verbal planning, visual processing speed, divided attention, and complex visual processing. Performances on tests of memory and new learning were variable but suggested mild difficulties with registration of both verbal and non-verbal information into memory. She concluded that, based on clinical history and the two sets of neuropsychological findings (hers and Mr Jackson’s) Ms Yigiter was definitely symptomatic for right frontal lobe damage (and possibly bilateral frontal damage) following the accident and that she had remained partly symptomatic. She demonstrated subtle impairment of planning, attention to detail and complex non-verbal processing on both occasions of neuropsychological assessment. Also, she was verbally disinhibited which is a symptom of right frontal damage. That assessment was mentioned by Dr Kwan,[31] Mr Jackson and Dr Walton.[32]
[31]A report not tendered in this application
[32]Psychiatrist, whose report was not tendered in this application
88 Ms Mullaly noted that Ms Yigiter had reported high levels of stress, depressed mood and frustration arising from the accident and its aftermath. She agreed with Dr Walton’s diagnosis of an adjustment disorder with mixed anxiety and depression[33] and agreed with Mr Jackson’s opinion that Ms Yigiter’s psychiatric difficulties have impaired aspects of her cognitive functioning and have contributed to her subject experiences of memory impairment and poor concentration. However, she disagreed with Mr Jackson that the plaintiff’s abnormal results and symptoms can be explained primarily by her mental health problems. In her opinion, in particular, symptoms such as verbal disinhibition, and topographical disorientation were more likely to have an organic basis and to have arisen as a result of her traumatic brain injury. She considered that Ms Yigiter’s emotional disturbance has come about because of the distressing nature of her neurological symptoms and their ongoing impact on her ability to resume her normal life, despite treatment. In relation to Mr Jackson’s conclusions, she noted that she had used a test called the Porteus Mazes which was highly sensitive to lesions in the right frontal area.
[33]An opinion not part of the evidence in this application
89 She understood one of Ms Yigiter’s biggest problems has been her irritability and her inability to control her anger in her interactions with family and friends, and considered this symptom to have both organic and psychiatric origins. Finally, although she agreed with Mr Jackson’s underlying contention that organic symptoms do not worsen over time, she noted that genuine organic symptoms can appear to become worse once a person becomes psychologically distressed as their depression and anxiety begins to compound the cognitive impairment.
90 Ms Mullaly considered the prognosis poor given the time that had elapsed when she saw Ms Yigiter since the injury was sustained. She considered the neuropsychological impairment to be a stabilised condition. She considered that Ms Yigiter would be precluded from returning to work as a driving instructor as that occupation needed excellent attention to visual details, divided attention, multitasking and behavioural and emotional control, and required rapid decision making, judgment, planning and confidence.
91 Mr James Drury carried out a neuropsychological assessment in December 2018.[34] He was provided with psychiatric reports and the reports of Dr Cook and Ms Berberavic dated September 2017 and 28 October 2018, but not with either of the previous neuropsychological reports[35] although he noted some excerpts from Mr Jackson’s report in Dr Weissman’s report dated 24 March 2015.
[34]Exhibit N
[35]Mr Jackson or Ms Mullaly
92 Mr Drury estimated that pre-accident, the plaintiff was likely to have been of Average intellectual ability. On testing many of her capacities were in the low average range. As seven of eight measures of symptom validity were performed satisfactorily, he concluded that there was no obvious attempt to feign her results. His opinion was that she had sustained a head injury that is to be categorised as a mild traumatic brain injury, and consequently studies have demonstrated that no long-term cognitive abnormalities result from mild traumatic brain injury. He concluded that it is unlikely that there were any residual cognitive deficits caused by organic injury, and he agreed with Mr Jackson that there is a non-organic basis to her ongoing condition. He supported continuation of psychological treatment, but on the basis that her psychologist work towards enabling her to accept that her limitations are not due to organic damage. He did not comment on her ability to resume driving instruction, but thought her capable of resuming duties in her husband’s business but only if she could minimise her psychological symptoms. He accepted that her lifestyle has diminished since the accident.
93 In November 2018 the TAC obtained a further neuropsychological assessment Dr Andrew Gibbs. He took very detailed accounts from her of the accident, of her symptoms and family circumstances and reaction. He also had an extensive number of reports including five from Professor Patrick Kwan from September to late November 2013. He administered a number of psychometric tests the results of which it is unnecessary for me to set out or compare with those other neuropsychologists. He estimated her premorbid general intellect was at least average. There were areas of reduction on tasks of auditory attention, mental special construction and verbal and special memory. He noted this was in the context of her reporting severe levels of depressive symptomatology and her mood was apparently depressed, and also that there was anxiety and post-traumatic features of avoidance of working as a driving instructor. There was also concurrent stress within her family as described by her in that she believed her family were non-supportive of the impact of the transport accident on her.
94 Dr Gibbs’ opinion was that it was likely that she had sustained a closed head injury in the transport accident but that any loss of consciousness was brief, if at all, and any potential closed head injury appears likely to have been mild and at most moderate. He noted she also presented as significantly depressed and anxious and described stress and conflict with her family in no longer being her former self as provider and central figure in her family. He noted complaint of changes in personality in that she was described as more irritably prone to temper and engaging in interpersonal conflict such as throwing knives. This can be a reflection of an acquired brain injury in acute settings though more recently her depressive disorder was likely to have been overriding this. He considered the predominant contribution to her presentation and condition was likely related to non-organic factors, particularly depressive disorder in the context of the transport accident injury and family responses to it. He considered her mood state of depression, anxiety and post-traumatic features appeared to likely to impact her domestic function and her loss of her previous strong central role in the family as a primary earner in her own business as well as running the household as wife and mother, and accepted that her enjoyment and engagement in life including family, social and recreational activities appeared to be presently markedly impacted particularly by her depressive disorder. That was also impacting her avoidance of acting as a driving instructor and also her assistance in the family kabab shop.
95 Dr Gibbs considered her potentially capable of alternative forms of work, though the efficiency and stability of this was impacted by her mental/emotional state and to a likely lesser degree by any mild to moderate closed head injury. He did consider there was potential mild to moderate contribution from her closed head injury with respect to work function.
Psychiatric opinion
96 Dr Sam Asadi [36], consultant psychiatrist, has been treating Mrs Yigiter since referral by her general practitioner, Dr Kurnaz, in late November 2018. On first consultation, she reported that since the motor vehicle accident she had experienced depressed mood, free floating anxiety, forgetfulness, insomnia, frequent nightmares such as theft and getting killed. She was worried and felt tense while in a car. She felt nervous when the phone was ringing. She felt hopeless and occasionally wished to “go away and leave everything behind”. She felt that she could not get words out and could not communicate as well as before. She had become impatient, felt irritable at home and tended to get angry at family especially her husband. She also felt she was not sharp in her thinking any more, and an example was that she had loaned a sum of money in circumstances she would not have been persuaded to do previously.
[36]previous name: Seyed Assadi
97 Dr Asadi diagnosed Mrs Yigiter with Post-traumatic Stress Disorder using DSM‑5 diagnostic criteria. He considered this condition occurred secondary to the motor vehicle accident. On cross-examination, the later diagnoses of an Adjustment disorder were put to him. He maintained his diagnosis of PTSD, explaining that Adjustment Disorder is a reaction to stressors, but that the DSM-5 says this should not be used if a more precise diagnosis would fit, and in his view, PTSD is more specific and indeed a more serious diagnosis. Even though her condition has improved since he first assessed and diagnosed her condition, that is not a reason to change the diagnosis.
98 In his first report to solicitors in February 2015, he also mentioned that her current clinical presentation might be partly due to post-concussive syndrome, noting the small intracranial haemorrhage that was found after the accident but he deferred on that diagnosis to a neurologist.
99 His treatment involved psycho-education, and prescription of medication which he adjusted according to her reactions over the years. She continued to report anxiety, irritability, poor concentration and forgetfulness. She continued to feel anxious in a car, whether as a passenger or driving. She showed difficulty in coping with stresses, characterised by an exaggerated emotional reaction. This included to her niece having been burned in early 2014, and also interpersonal tension with her older sons from time to time.
100 During 2014 Mrs Yigiter had been seeing a private psychologist who tried to encourage graded exposure and return to work, but Mrs Yigiter found the plan very stressful and finally ceased seeing that psychologist.
101 In August 2017, Dr Asadi reported that Mrs Yigiter had shown partial response to treatment but reported significant residual symptoms. He thought her condition had stabilised at that stage and she was unlikely to show a complete recovery in the foreseeable future. He considered her totally incapacitated for her pre-accident work as a driving instructor due to her psychiatric condition, as sitting in a car with an inexperienced driver would be highly stressful for her and would trigger her traumatic memories of the motor vehicle accident.
102 In a report of June 2019, Dr Asadi noted he had seen Mrs Yigiter only twice since his report of October 2018. When he saw her on 1 March 2019, she did not report significant change in her mental state and complained of anxiety, irritability, and forgetfulness. She had had an argument with her husband recently. She was working in her son’s shop, but said that was to supervise the workers until 6.00pm when her son would come and take over. She said she tried to avoid arguments with her son. She sometimes picked up her younger son but other times he would take the bus. She was still prescribed medication and not reporting significant side effects. She had missed her appointment in May 2019. He confirmed his diagnosis had not changed and that her condition was stabilised, and he did not expect significant change in her mental state, with residual symptoms likely for the foreseeable future. He considered she did not have a capacity for the pre‑injury duties as a driving instructor due to her psychiatric condition but does have a capacity for alternative duties if the jobs are relatively simple and non-hectic but her capacity was limited by psychological symptoms including irritability, forgetfulness and low frustration tolerance.
103 In a supplementary report in August 2019, Dr Asadi had been asked to view video surveillance and affidavits by the plaintiff and others. He maintained his view that she was incapable of working in pre‑injury employment. In relation to the surveillance showing her working in the kebab shop on different dates from September through to December 2018, he noted that she was apparently preparing food, serving customers, cleaning the shop on a few occasions and as late as 11.53pm on 3 November 2018. He also noted the descriptions in affidavits of her frequently getting angry at work and ceasing work in May 2019. He noted what she had told him in March 2019 of what she typically did at the shop. He noted that the surveillance film materials were in line with his previously stated view that she does have a capacity for alternative employment but would not be able to perform work reliably in a hectic or conflictual work environment.
104 During cross-examination, Dr Asadi confirmed that he had seen the plaintiff less frequently in recent years, but when he had seen her the last time in July 2019 there had not been a significant change in her presentation and he regarded her condition as having stabilised. Over time, the dosage of her medication had been increased because she complained of irritability and mood swings and wanted better control of her moods, but when last seen on 20 July 2019, there was no significant change from the increased dosage and no change to the prognosis. He confirmed that there had been some improvement over time, but that there were residual symptoms. After the change in medication to Escitalopram there was significant improvement, but there had not been much improvement since then, and the improvement she has undergone is relative and not a complete recovery. He had not seen a major improvement since early 2018. Since then he had only seen her five times.
105 Cross-examined about what the surveillance showed in comparison with what he had been told, he agreed that if she were working for up to 10 to 12 hours every day doing activities he saw, that would be a significant discrepancy from the description he had been given. He agreed that over a particular 11-day period in late 2018, the times of surveillance were much longer periods at the shop than he had understood, but he had not believed her capacity to work was limited to two to three hours a day. He had understood that she had had to leave the kebab shop because of anger and altercations with her son. He knew she knew to use deep breathing and medication to control her anger if serving customers, but said that depended on how hectic and how stressful the demands were in the shop, and the difference between her working in her son’s shop or any other take-away shop would be that she had more control, and was used to controlling family, and there could be a significant difference if working for others.
106 Dr Assadi disagreed that he was entirely dependent for his diagnosis on what Mrs Yigiter said to him, as in every assessment he conducts a mental state assessment, even though he does not mention it in each report. He gave details of the most recent mental state assessment, including that she came across as mildly irritable, significantly pre-occupied about court proceedings, dissatisfied about tension in the whole family, and she complained of forgetfulness. She was visibly upset, which was reflected in gestures and she got louder and louder and talked faster than usual, moving her hands, not smiling before coming into the room, and showed lack of consistent eye contact.
107 He agreed that for a diagnosis of PTSD there needs to be enough to show that the person feared or expected at least serious injury, and he agreed that his diagnosis was based on a description of very significant impact or trauma to her at the time, and that he would not diagnose PTSD if there were just impact from behind and some neck pain. On having the Northern Hospital record read, he agreed that there was nothing in it indicating any neurological abnormality, and would have expected notes if told of vomiting or fluid from the nose. However, when a person is in a state of chaos or panic it is not certain that the person will state all symptoms. He disagreed that this hospital note only reflected a whiplash. He did not agree that from what was in the hospital note he would not be able to diagnose PTSD as it could still be life threatening enough if she had hit her head on the pillar and she would be in a state of panic and complete loss of control. DSM-5 gives examples that can justify diagnosis of PTSD and those include being in a car accident.
108 Dr Assadi was aware of the incident of her niece being scalded by tea which she spilt, and that the incident was in 2014. The proposition was put to him that the incident of scalding her niece, as described to Mr Jackson, was much more likely to be the cause of PTSD. Dr Asadi disagreed, as he was seeing her before the scalding incident, as well as after it. He said PTSD is waxing and waning all the time, and just because she felt better on the trip for a few days and then regressed after her return was consistent, and many people with PTSD show symptoms again. That also occurs with Adjustment Disorder with temporary improvement and then a setback. He agreed that scalding her niece could be a stress and so could a motor vehicle accident. It was put that her entire symptomatic presentation now cannot separate what is due to the motor vehicle accident and what is due to the scalding accident. Dr Assadi’s answer was that at the time she was upset she was not the same careful, organised person as before the motor vehicle accident, and was blaming herself for that, and that previously she would not have taken a scalding hot cup over the head of someone else.
109 As to whether her symptoms could be due to a mild organic injury, he noted it was not just irritability she was suffering, but other symptoms of PTSD, including nightmares, flashbacks, panic as a passenger, and still hypervigilance as a passenger, and those are due to a car accident and a psychological condition as opposed to an organic brain injury. His understanding was that it would depend how significant the brain injury is, and if significant and localised to the front part of the brain, it would not explain the full extent of her mood symptoms.
110 In re-examination, examples of her behaviour were put to him, such as throwing a chair of throwing a knife at her son that hit him in the forehead, and her erratic and aggressive behaviour. From his perspective as a psychiatrist, he said that this is seen in many PTSD sufferers. He volunteered that poor memory and concentration can happen in PTSD and can also happen in organic brain injury.
111 He maintained that she cannot return to being a driving instructor, as she would be a passenger and giving control to someone else. She had a high base line and is a very resourceful and intelligent woman and in his view still able to work, but would need support, and it could not be in complex or pressured environments. He also believed, given the IQ testing, that there has been some cognitive impairment and that she will not be able to process complex jobs and that is attributable to a problem with memory.
112 As for the scalding incident injuring her niece, that incident resolved favourably and she ceased to be pre-occupied or to raise it during consultations in the last three to four years, so he did not believe it was still contributing at this stage.
113 Dr Timothy Entwisle, consultant psychiatrist, assessed the plaintiff for the TAC in December 2018. He does not set out the documents that were provided to him, but from what he describes in his report it seems that he was provided with the Northern Hospital attendance notes, reports of Dr Patrick Kwan,[37] early reports of Dr Assadi,t and the report of Mr Jackson. It does not appear that other neuropsychological reports were provided because Dr Entwisle refers to Mrs Yigiter as being of low-average intellectual functioning pre-accident, whereas Mr Jackson was the only neuropsychologist to make that low assessment of her premorbid intellectual capacity and thus to conclude that there had been little cognitive impairment as a result of the transport accident. Dr Entwisle’s account of her employment history also omits her doing sewing work from home for many years, noting only that she remained at home after the birth of her three children before beginning the driving-school business.
[40]T193, L5-14
[41]T193, L15-17
[42]T194, L26-27
139 As to neuropsychological assessments, Dr Berberovic believes Mrs Yigiter’s premorbid cognitive capacity was average as she was quite capable, and although not highly educated, had picked up skills. She believed there was a reduction in cognitive capacity from that level, but agreed it can happen with depression. She considered there were extremely low results for aspects related to frontal lobe, although agreed that the degree of inconsistency on one test between Dr Gibbs’ and Ms Mullaly’s results were unusual.
140 In relation to working with her son, Dr Berberovic, they had discussed it, but not planned together how to proceed as a paced return to work, and Mrs Yigiter did it herself. Dr Berberovic’s impression was that she was going too much. Her notes from therapeutic sessions in 2018, mention yelling and hitting her son with a metal chair, being so angry with him he kicked something and broke his toe, that in June she felt helping out was going well and was quite proud, but was calling food the wrong names and made mistakes with the til, giving away the wrong change, and could not multitask and got angry. In August 2018, when workers had left, it was just her son and her, and she had an argument and cut her son’s forehead, and a new worker expressed interest and she would like to pull away. In October 2018, she was feeling stressed at the kebab shop, but her son needed her there. She would go in in the mornings and go out at 1.00pm and go and have a massage, and her son says she should go. Therapy included talking about pre-emptive breaks before she gets angry. She wanted to see her son succeed. In November 2018, she was stressed at a time her husband was hospitalised and needed heart surgery, and they mainly talked about the husband. In February 2019, it was noted she was two to three days at the kebab shop, opening at 10.00am and leaving when workers came, and she would come back when her son came. She would go to bed at the back of the shop at times and be lying down and praying. She was not taking any orders. She got sleepy and fatigued. In April 2019, they talked about goals and making more time for herself. She had argued with her son, who had been poking her at work, saying “you, you, you”, and she told him not to touch her, and she took a knife but did not touch him, and she said she ended up in the freezer crying. She told her son to hire someone else and waivered between thinking she would leave or will not leave.
141 Dr Berberovic thought that Mrs Yigiter recognised that her son was also stressed, and that this is a family business with cultural aspects to these interactions, but the behaviour did not seem appropriate, the running of the business was new to all of them, and based on what she had been told, they were all stressed in the situation. The violence had been with her son, except for one incident where she had bought a dress and threw it in front of a shop worker.
142 She agreed that the surveillance material reflected much more extensive hours at the kebab shop than she had been told, but queried whether there was evidence of her coping. She agreed that the level of hours suggested of 10 to 11 hours a day would be stressful and overload, but it depended on how much of the time she was working, or resting, or sleeping. Dr Berberovic considered that she would benefit from structure in a workplace, and this workplace did not seem to have structure, but it was a situation where she really wanted to succeed, as her primary desire is to help her family, which is great motivation to continue, and on the other hand, increases the stress.
143 Dr Berberovic had not had the history of the incident of scalding her niece by spilling tea, but noted that if it were that significant to her, it would have been raised and recorded in the notes. She agreed it is likely to be very stressful at the time. She could not discount totally that it contributed, at the time, to Mrs Yigiter’s mental state, but she did not have that impression. When Mrs Yigiter came to her, she was stressed over an incident with a shop not prepared to give a refund, and that was traumatic to her in a way, and she could not control herself, and spent two sessions talking about it. As the scalding incident had not been mentioned to her, she did not think it was impacting on Mrs Yigiter’s mental health throughout her sessions with her, and does not believe it is contributing at this stage.
144 On re-examination, Dr Berberovic said she does not have the impression that Mrs Yigiter will get much better at this stage. Her understanding of the Escitalopram medication is that it reduces the reactivity to emotions. Mrs Yigiter is not reactive all the time, but there are incidents. Her impression was that when she stopped working in the kebab shop a couple of months earlier, she had a look of relief, and that she was looking after herself more, but as at August 2019, she was really fragile. She had discussed as a general goal a return to work, but engaging with people would be stressful. She enjoys helping people, but to feel worthy and worthwhile, it will be a struggle for her.
145 Dr Berberovic considered that the organic brain injury alone causes behaviours that would impact on her ability to engage in other employment, and an employer would need to know of her history of this injury and of some risky behaviours, and to put in place something, such as a support person to speak to when these stressful situations arise. The emotional management is tricky for her due to both brain injury and emotional or psychological injury, so when she is stressed Mrs Yigiter will have even more difficulty managing her own behaviour. Recurrent episodes of inability to manage stress put her at risk of having difficulty sustaining her work, and putting her own mental health at even greater risk of deterioration.
Applicable Law
146 As already stated, it is well established that the definition of “serious injury” is intended to maintain a division between injuries with physical consequences and those with mental or behavioural consequences[43]. A different descriptive test, and different degree of consequences is set for each. Part (a) is recognised as applying to injuries of physical or organic nature, and deals with consequences of physical impairment of a body function. Part (c) applies where the injury or condition is non-organic, and does not deal with impairment of body function, but with consequences of mental or behavioural disturbances or disorders[44].
[43]Humphries v Poljak, op cit
[44] Eg Richards v Wylie [2000] VSCA 50; per Winneke P at [16-17]
147 It is also well established that where a transport accident has caused both physical and mental consequences for a plaintiff, “which test is appropriate will fall to be determined by consideration of what is the dominant cause of the plaintiff’s condition.”[45] The court must approach this by identifying each injury or disorder the subject of the application, and deciding whether the plaintiff’s relevant disabilities and their consequences have been brought about predominantly by physical or organic injury, or by mental or behavioural disturbance or disorder.
[45]Richards v Wylie [2000] VSCA 50 at [28] per Chernov JA
148 In cases arising from workplace injuries, there are statutory provisions[46], and case law[47], requiring the court to disregard any contribution from psychological or psychiatric consequences when considering an injury under part(a), and to disregard any physical consequences of a mental or behavioural disturbance or disorder when considering a condition under part (c).
[46]ACC s134AB (3)(h) & (i); WIRCA s 325(2)(h) and (i)
[47]Eg AG Staff v Filipowicz [2012] VSCA 60 relied on by defendant
149 However, for cases such as this which fall under s 93 of the Transport Accident Act, the applicable law remains as stated in Richards v Wylie[48] .
[48][2000] VSCA 50
150 As stated in that case, if it is decided in a relevant case that para (a) is appropriate because the plaintiff’s relevant impairment has been brought about predominantly by physical injury, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental and behavioural disturbances flowing from the physical injury. The same applies where the dominant cause of the plaintiff’s condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff’s mental or behavioural disabilities are [severe] and long-term[49]. In other words, just as physical consequences of a mental or behavioural disorder may have a bearing on the severity of the disorder, a mental or behavioural condition can affect the consequences of a physical incapacity or impairment[50].
[49] per Chernov JA at [28];
[50]at [24] per Buchanan JA
151 I therefore do not accept the defendant’s submission that if I find any consequences have continued to be caused by an organic brain injury, I should “strip them away” from consideration of the claim under part (c), because for a transport accident, Richards v Wylie is the applicable law and specifically enables them to be taken into account in such circumstances.
Findings and Reasoning
152 The defendant’s case was, first, that the plaintiff’s reliability as a witness was so compromised that the court could not sufficiently rely on her account, or medical opinions based on her account, to find her case proven.
153 It further argued that there was conflicting medical opinion as to whether, if she is genuinely suffering cognitive or behavioural symptoms and restrictions, they are predominantly caused by an organic brain injury or a psychiatric disorder, and that meant that neither basis of the application could be satisfied.
154 As previously discussed, although I find that the plaintiff understated her involvement during 2018 and up to May 2019 in her son’s kebab shop, in her second affidavit, and to doctors and neuropsychologists, overall I found her evidence reliable in describing the impact on her of the effects of the accident, and what she has experienced since.
155 I am reinforced in this finding by the views of all professionals whose opinions are in evidence. None gave the opinion that she was deliberately feigning or exaggerating her symptoms, and most accepted as genuine her descriptions of her symptoms and their impact on her, even if some disagreed that an organic brain injury would still be the cause. Further, the Neuropsychologists administered tests which have embedded indicators of symptom validity, or genuineness, and Mr Jackson[51], Ms Mullaly[52] and Mr Drury[53] all specifically noted that she performed these satisfactorily. Professors Cook and Stark accepted the genuineness of her symptoms, as did her treating psychiatrist and psychologist, and as did Dr Entwisle. While some commented on her being convinced that she suffered from the effects of a more serious or brain injury than they believed she had, and which they considered had fully or almost fully resolved, none expressed the view that she was deliberately feigning her symptoms.
[51]At p 11 – overall impression was of “appropriate test taking behaviour, but some illness behaviour and negative thinking
[52]At p 8 – embedded and non-embedded tests of symptom validity were performed at satisfactory level and no qualitative features suggestive of inadequate effort
[53]7 of 8 measures of symptom validity performed satisfactorily; no obvious attempt to feign her results.
156 I am satisfied that it was the transport accident that caused and has remained the predominant contributor to the plaintiff’s current condition and consequences of her injuries. I am satisfied that other stressful events have concerned her from time to time since, and may have temporarily exacerbated some of her symptoms especially of anxiety, low self-esteem and difficulty sleeping, have not contributed long-term to her condition, and am reinforced about that by the opinions of both Dr Asadi who has treated her before and ever since the scalding incident, and by Dr Berberovic with whom that incident had never been raised in five years of therapy.
Did the plaintiff suffer a “serious injury” within part (a) of definition?
157 I am satisfied that the plaintiff suffered a closed head injury including a traumatic brain injury in the collision. Apart from the Northern Hospital notes [54], all medical and neuropsychological opinion supports that such an injury was sustained. The issue on which opinions diverge is whether that injury continued to be a cause of ongoing symptoms beyond the first few months.
[54]in which only neck strain was diagnosed
158 Mr Jackson who assessed her less than five months later, was of the view it did not, and that any ongoing symptoms at that stage resulted from a psychiatric reaction which had superseded a mild brain injury. Ms Mullaly reporting in 2015 disagreed, and related signs of disinhibition and topographical confusion to right frontal lobe damage, and difficulty taking in information possibly reflective of left side damage. She agreed that post accident psychiatric difficulties had contributed to impairment of cognitive functioning, but disagreed with Mr Jackson that all of the plaintiff’s symptoms could be explained by psychiatric disorder. Mr Drury assessed her in December 2018, and was of the view that her neurological signs from the accident were not sufficient to indicate the likelihood of any residual cognitive deficits caused by organic damage, and thought that if she had sustained a post-concussion syndrome the symptoms typically resolve within weeks or months of the trauma, and if they persist beyond that period, then the cause of the residual symptoms is likely to be non-organic. He did not doubt that she has cognitive lapses at times, but thought these likely to be due to psychological non-organic cause. Dr Gibbs agreed with Mr Jackson’s view that as the plaintiff’s brain injury was properly classified as “mild”, it would not be expected to be the cause of ongoing symptoms or deficits, which he agreed were likely to be due to non-organic psychiatric causes. Dr Berberovic, who has treated her since September 2015, maintains that the organic brain injury is still contributing, and indeed believes it is now the greater contributor, but also acknowledged that psychological reaction is present and contributing. Both neurologists, Professor Cook and Professor Stark, considered there had been a mild (but not insignificant) brain injury, but that her ongoing symptoms were likely to be due to psychiatric disorders even if there was some lingering contribution from the traumatic brain injury.
159
Apart from Dr Weissman, whose attribution of 50% contribution from the organic injury stands alone and in my view is not adequately explained, other psychiatric opinion ascribes her ongoing complaints to psychiatric disorders. Dr Asadi notes that there was a likely brain injury suffered in the accident which might still be a residual cause of some features. Dr Entwisle does not specifically comment on this issue but by implication does not believe she has ongoing consequences of a brain injury.
160 Based on the majority of opinion, therefore, I am satisfied that the dominant contributor to the plaintiff’s residual symptoms and their consequences is a mental or behavioural disturbance or disorder. Therefore, I am not satisfied that consequences from any residual contribution from the organic brain injury could be found to meet the level of being “at least very considerable”.
Did the plaintiff suffer a “serious injury” within part (c) of definition?
161 I am satisfied that as a result of the transport accident, the plaintiff has suffered both direct and secondary mental or behavioural disorders. I am satisfied that as a direct result of the accident she has suffered post-traumatic stress symptoms, and that within a couple of weeks afterwards she was suffering symptoms of depression and anxiety. Dr Assadi, her long-standing treating psychiatrist, diagnosed a Post Traumatic Stress Disorder, and has maintained that diagnosis notwithstanding some improvement in the post-traumatic symptoms. Much later, Dr Entwisle diagnosed an Adjustment Disorder with Anxious and Depressed Mood and features of Traumatisation in partial remission. Dr Weissman who first assessed her in 2015, did not agree that she has a full-blown chronic PTSD, and preferred a diagnosis of chronic Adjustment Disorder with anxious and depressed mood and traumatisation features. I found Dr Asadi’s explanation of why he maintained his original diagnosis of PTSD, convincing, but whether the current diagnosis should be PTSD or an Adjustment disorder, I am satisfied that all psychiatric opinions confirm a range of symptoms of one or more DSM-V mental state disorders, and none of the neurological or neuropsychological opinion was inconsistent with these opinions.
162 I find on the balance of probabilities that the mental and behavioural disorders suffered as a result of the transport accident have caused long-term changes in her behaviour, her moods, and some of her cognitive functioning including concentration. I find that these have significantly impacted on her family life and interactions with her sons and husband, her extended family and community connections, and have seriously restricted her domestic and social activities and enjoyment of life.
163 Although her symptoms have not been psychotic, and have not necessitated hospitalization in psychiatric units, she has undergone considerable psychological counselling and psychiatric treatment, has been prescribed differing medications and dosages, and continues to need and take daily medication. Her mental and behavioural disturbances were noted within weeks of the transport accident, and have continued and been treated for more than six years. Although both psychology and psychiatry sessions have been less frequent over the last couple of years, her GP Dr Kurnaz was of the opinion she would continue to need treatment of this nature, and Dr Berberovic’s view that her counselling could not be justified to continue was attributable to what she understood were funding decisions. Mr Drury in late December 2018 recommended ongoing psychological counselling, focused on trying to convince Mrs Yigiter that she is not suffering a serious brain injury. Although some opinions indicate that there might be some improvement after the stress of court proceedings finishes, all confirm that she is likely to continue to suffer significant mood and behavioural disturbances for the foreseeable future.
164 I am also satisfied that as a result of her hypervigilance and anxiety when a passenger in a car, and also as a result of her mood and personality changes undermining her ability to stay calm, and causing her to become easily frustrated and angry, she has been totally incapacitated from resuming her pre-injury occupation as a driving instructor. All professional opinion supports[55] that she is unlikely ever to be capable of returning to that occupation. Even if lack of quick absorption of information, or lack of concentration, might still be partly caused by the original organic brain injury, as opined by Dr Berberovic, I consider that the hypervigilance and anxiety as a passenger are clearly attributable to her post-traumatic symptoms, and her loss of patience and easy frustration due to mood or personality changes. I am therefore satisfied that her incapacity for resuming driving instructing is predominantly caused by her psychiatric or behavioural disorders. In any event, if an organic brain injury still contributes to her incapacity to resume work as a driving instructor, those consequences can also be taken into account[56].
[55]Except Mr Jackson who has not seen her since four months after the accident when he expected improvement but she was not then regarded as capable of driving at all and her licence had been surrendered.
[56]Richards v Wylie
165 The adverse impact on the plaintiff of being unable to resume her driving instructor business is both financial and diminishes her enjoyment of life. The defendant argues that her tax returns for the preceding years do not disclose high enough income to be significant if lost. I disagree. In the last full financial year before the transport accident her income from her driving school business was just over $18,000. I am satisfied that loss of this income was real pecuniary loss to her. Further, she not only generated some income for her family from it, but I am satisfied that it was a source of pride and self-esteem to her to be able to generate income for the family, and also to be capable of and known in her community as having established and operated her own business. In the social and cultural context of a woman not born or fully educated in Australia, who had left school at 16, married and borne and raised 4 sons, who had undertaken studies to run a business and raise herself from piecework sewing at home and then achieved what she did, this was of much more significance than purely pecuniary earnings. The loss of both the pecuniary and emotional achievement that her driving instructor’s business held for her in my view is “more than very considerable”.
166 In addition, I find that she has lost her capacity to do the book-keeping and administration for her husband’s business, making too many mistakes and lacking her previous business judgment, such that she is no longer trusted by the family with that role and her husband says they now use an accountant. Again I am satisfied that her inability to concentrate and exercise her previously sound judgment for the family business has led to loss of self-esteem as well as a pecuniary cost to the family business.
167 It is not necessary for me to decide whether she is likely to be capable of working at any alternative occupation in the long-term, but on the evidence I have seen, the prospect of her being able to sustain paid employment for even a very flexible and understanding employer would seem very limited.
168 When the pecuniary losses and her loss of self-esteem and sense of achievement, from loss of her driving instructor business, are taken together with the limitations on her capacity to run her home and family and social arrangements as she used to do, and her shame at being unable to control her frustration and anger at times, I am satisfied that the consequences to her from the mental or behavioural disorders she has suffered, can fairly be described as “severe” when compared with other possible mental or behavioural disturbances or disorders.
Conclusion
169 For the reasons outlined, I am satisfied that as a result of a transport accident on 5 September 2013, Mrs Sukriye Yigiter has suffered one or more mental or behavioural disturbance or disorder, the consequences of which can fairly be described as “severe”. I therefore find that she has suffered a “serious injury”, within the meaning of part (c) of the definition, and propose to grant her leave to bring proceedings for damages for her injuries suffered as a result of that transport accident.
Court Refs: CI-18-03340
IN THE COUNTY COURT
AT MELBOURNE
SITTING BEFORE HER HONOUR JUDGE COHEN
LIST OF EXHIBITS
Serious Injury Application – 16, 17, 18 August 2019, 9 September 2019
YIGITER
-v-
TAC
| Number and identifying mark on Exhibit | Short description of Exhibit |
| A | Plaintiffs affidavits dated:
|
| B | Affidavits of Kemal Yigiter dated:
|
| C | Affidavit of Cemal Yigiter 21 March 2019 |
| D | Affidavit of Kerim Yigiter dated 21 March 2019 |
| E | Affidavit of Muztaffer Altun dated 12 August 2019 |
| F | Reports of Dr Sam Assadi dated:
|
| G | Reports of Dr Beberovic dated:
|
| H | Report of Dr Selim Kunrnaz dated 25 July 2019 |
| J | Report of Dr Martin Jackson dated 7 February 2014 |
| K | Reports of psychiatrist Dr David Weissman dated:
|
| L | Report of Elizabeth Mullaly dated 15 May 2015 |
| M | Reports of Professor Mark Cook dated:
|
| N | Report of James Drury dated 10 December 2018 |
| O | Summary from Taxation Returns |
| P | Plaintiff’s summary of surveillance footage |
| 1 | 3x discs showing surveillance footage of the Plaintiff
|
| 2 | Northern Health Discharge Summary dated 5 September 2013 |
| 3 | MRI Brain Scan dated 30 September 2013 |
| 4 | Report of Dr Timothy Entwisle dated 21 December 2018 |
| 5 | Report of Dr Andrew Gibbs dated 30 January 2019 |
| 6 | Report of Associate Professor Richard Stark dated 6 June |
| 7 | Extract of Northern Health Discharge summary, and page 15 of clinical records |
| 8 | Extracts from Plaintiff’s clinical notes of Dr Selim Kurnaz |
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