Joldzic (bht Joldzic) v Patrick

INJURIES AND DISABILITIES

1. By her Amended Statement of Claim (filed 15 August 2017), the plaintiff alleged that the defendant's negligence caused her the injury, loss and damage in accordance with her Statement of Particulars. By her Statement of Particulars (filed 7 May 2014), insofar as her case on injuries was referable to mental illness is concerned, the plaintiff particularised a case of 'Generalised Anxiety Disorder' ('GAD') and identified, as the disabilities associated with that disorder, anxiety, panic attacks, shortness of breath, agoraphobia, social phobia, and depressive symptoms (including sleep disturbance, reduced energy, tiring more easily, reduced motivation, variable appetite and difficulties with concentration).
2. The plaintiff did not give evidence. It was not disputed that the nature of the condition of her mental health was such that the process of giving evidence would have been deleterious to it. There were suggestions in medical evidence that she was not even properly fit for medico-legal assessments. The defendant did not invite the Court to draw any adverse inference, or even to discount evidence adduced on the plaintiff's behalf, by the circumstance that she did not give evidence in the hearing.

Evidence of Mrs Ilanka Joldzic

1. Mrs Joldzic is the plaintiff's mother. She gave evidence through an interpreter. The purport of her evidence was to compare and contrast the plaintiff's behaviour before and after the accident.
2. Owing to the passage of time since the accident, much of what she said in her evidence in chief amounted to conclusory statements and opinions which, themselves, were expressed in very general terms.
3. The preponderant part of her evidence under cross-examination was what she said to the medical practitioners who treated her daughter, and what she heard her daughter say to them. I made a limiting order that her account in her evidence as to what the plaintiff said to the practitioners was not admitted as to the truth of what was (or may have been) intended by the plaintiff.

Prior family history

1. Mrs Joldzic was asked if she was aware that the plaintiff's father (and her husband), apparently of Serbian extraction, had had a history of anxiety and alcoholism in his family. Mrs Joldzic denied that this was so, and indicated that the only mental illnesses she was aware about in her family concerned the plaintiff.

Plaintiff's behaviour prior to the motor vehicle accident

1. Mrs Joldzic described her daughter, prior to the accident as "perfect" and did not identify any behavioural problems. She acknowledged that her daughter experienced stress during Year 12 (in 2010) and, apparently, only belatedly learned that she had gone to see a psychiatrist later that year. But prior to the accident in January 2012, Mrs Joldzic had never received psychiatric medication, never been scheduled into a mental health facility, and never required an ambulance to take her to hospital - all these events only occurred after the motor vehicle accident.
2. Mrs Joldzic was vigorously challenged upon the accuracy of her evidence of her daughter's behavioural issues prior to the accident, and during her school years in particular. She was referred to behavioural issues concerning the plaintiff when she was in Years 10 and 11 at school (she being at different schools in those years), featuring: acts of truancy; and a diagnosis of an anxiety disorder that the plaintiff had received from Dr Rogers when she was in Year 10, and her suffering from panic attacks. It was suggested that in Year 10, the plaintiff had reported to a practitioner about an altered state of consciousness. It was suggested to Mrs Joldzic that, in late 2010, when the plaintiff was just finishing Year 12, that Dr Barnard had diagnosed the plaintiff with a GAD, with episodes of anxiety and panic attacks, and had recommended that she have her brain investigated by an EEG, by Dr Presgrove in Bankstown. Mrs Joldzic denied recollection of these matters. Mrs Joldzic's response that she only became aware of stress of the kind typically suffered by students in their final year at school, in Year 12. It was put to Mrs Joldzic, but she denied, that her stated absence of recollection was attributed to her wishing to deny that the facts did not fit with her image of her daughter being 'perfectly' behaved prior to the subject motor vehicle accident.
3. Mrs Joldzic was specifically challenged that she did not attend Dr Barnard with the plaintiff in 2010. She adhered to her evidence.
4. The plaintiff's father, Mr Joldzic, was subsequently called to give evidence that he did not accompany the plaintiff to see Dr Barnard in 2010, either. He was unaware that the plaintiff saw that mental health professional.
5. Mrs Joldzic gave evidence, in her examination in chief, which indicated that prior to the accident, the plaintiff was physically very active, partaking in running and swimming and also yoga. After the subject accident, however, Mrs Joldzic recalled that she had stopped running and only found exercise in occasional walks along the sand on the beach and had not been able to form other recreational hobbies, as she was unable to concentrate.
6. Under cross-examination, Mrs Joldzic was challenged upon her evidence of these restrictions. It was put that at least until 2015, she was continuing her drama studies and had even enrolled in a law degree and was able to participate, early in 2015, in two drama productions with the Genesian Performing Arts Theatre in connection with the drama studies. It was suggested that by early 2016, the plaintiff had in fact been complaining of 'excessive' exercise, and had reached the point when in 2016 and 2017 she was 'regularly running', had mentioned playing beach volleyball; and had even tried kick boxing and other forms of martial arts. It was further suggested that Mrs Joldzic herself had taken the plaintiff to cooking classes, and had encouraged her with guitar and singing lessons. A recurring answer by Mrs Joldzic was that although the plaintiff may have tried these things, she was unable to persevere with these activities at any length because of her illness.
7. Generally, Mrs Joldzic contrasted a pre-accident happy young woman with a post-accident young woman who did not want to socialise. However, under cross-examination, it was pointed out that the plaintiff had approximately 15 friends over who provided company, provided presents and ate food in celebration of her birthday in 2016. (Mrs Joldzic baulked at characterising it as a birthday party).

Participation and involvement in post-accident treatment consultations with mental health professionals

1. Mrs Joldzic gave evidence that early one morning in February 2012, at about 3:00am, she heard the plaintiff crying, yelling and screaming; and saying words to the effect that she "couldn't handle this". It appears, from the chronology (Exhibit A) that this might have been shortly before 5 February 2012, the date that she attended the Dee Why Medical Centre and received a referral to see a psychologist.
2. Mrs Joldzic opined that after this, she recalled that her daughter had difficulties with her concentration.
3. Mrs Joldzic gave evidence about an event in 2014. She had heard that the plaintiff had to be picked up by an ambulance and taken to Ryde Hospital. Mrs Joldzic saw her there. She opined that the plaintiff had appeared "lost" and did not look well.
4. Under cross-examination, it was suggested that the plaintiff's admission to hospital arose from circumstances in which she had attended a concert with her boyfriend, Joel, with whom she had recently started a relationship; and that the plaintiff had told hospital staff that she had not been sleeping for the last 4 or 5 days; that she had had a fight with Joel, was worried that he might hurt or manipulate her, and was worried about dying. Mrs Joldzic stated that this was not true. As to the reputed concern about what her boyfriend might do, Mrs Joldzic explained that sometimes her daughter 'wasn't focussed' and 'got lost' in the accounts she gave to people. It was also suggested to Mrs Joldzic that she was aware that the plaintiff might have attributed her seeing a psychiatrist in Year 12 (2010) as a result of bullying. Mrs Joldzic did not think that was true either.
5. The plaintiff was able to complete a Bachelor of Arts with a major in Theatre by 2015. Mrs Joldzic said that the plaintiff has not been able to return to her past exercise routine.
6. Mrs Joldzic gave evidence in 2016 of the plaintiff crying constantly for 4 days and her being taken to hospital, but because of her wish to return home, she was discharged; but subsequently, she needed to return to the hospital. Upon her return, on one occasion, she was restrained by police for a long time on what was an abnormally hot day. The plaintiff was escorted by police car to the hospital where she stayed, not continuously, for about 100 days; apparently, from February 2016.
7. Under cross-examination, Mrs Joldzic was probed for her understanding as to how the plaintiff came to be at the hospital. It was suggested to her that the plaintiff had indicated to hospital staff in early 2016 that she had low self-esteem because her ex-boyfriend, Joel, had learnt about an affair that the plaintiff had had with a drama teacher. Mrs Joldzic denied that this was what was troubling the plaintiff. It was suggested that she had found a photograph of her drama teacher on Mrs Joldzic's laptop computer; resulting in her anxiety. Mrs Joldzic denied knowledge of this.
8. It was suggested that on 4 April 2016, the plaintiff, her sister (Juliana), and Mrs Joldzic attended a family meeting with Dr Keane during which there was discussion about the plaintiff's concerns about sending a text message to her drama teacher and that this might have been a trigger for psychotic behaviour. Mrs Joldzic denied this. It was also suggested that the plaintiff may have self-diagnosed schizophrenia or a schizoaffective disorder. Mrs Joldzic was unaware of this.
9. In July 2016, the plaintiff and Mrs Joldzic attended Dr Grant Sara. It was suggested that the plaintiff had given a history to Dr Sara of increasing anxiety since Year 10 at school; a gradual loss of self-esteem and a sense of becoming self-conscious (relating to braces on her teeth); that from Year 12, the plaintiff starting to hang out with people she would not normally hang out with; that after her first year of university studies, she started to become more anxious and less confident; and that she felt increasingly stressed at exam time at University. Mrs Joldzic did not recall any of these things being said by her daughter. She did, however, recall informing Dr Sara herself that the plaintiff was a sunny and popular girl at school, but that she felt that a major change had come over the plaintiff after the motor vehicle accident. She denied telling Dr Sara that she understood (from the plaintiff) that the plaintiff had lost consciousness. She also denied hearing her daughter express the opinion that her problems had pre-dated the accident.
10. It was also suggested that on 1 December 2016, the plaintiff attended Manly Hospital. She was there for virtually two months. Counsel for the defendant put to Mrs Joldzic his instructions of the account that the plaintiff had provided to the hospital: that she was experiencing intense feelings of being alive; sudden feelings of heaviness in her legs; feelings of sexual excitement; that her thoughts were racing and she had trouble catching hold of her thoughts; that her mother's and sister's eyes looked demonic; and that she felt jerky and experienced sudden movements in her limbs. Mrs Joldzic did not recall her saying any of these things. She did however recall her daughter complaining that her tongue felt too large for her mouth. Mrs Joldzic herself did not recall informing hospital staff that her daughter was anxious and might faint or lose consciousness.
11. There was also a great deal of cross-examination of Mrs Joldzic regarding her awareness of the plaintiff's condition and treatment from 2017 to 2019; in which period, it is common ground, her psychotic condition developed.
12. In cross-examination, it was suggested that she was not truthful in the plaintiff's history conveyed to Dr Allnut in March 2019, as she had not referred that expert to a report that she had received from Dr Barnard, a psychiatrist, whom the plaintiff saw in 2010 (in Year 12 - her HSC year) and had informed Dr Allnut, generally, that her daughter had had no psychiatric issues prior to the motor vehicle accident.
13. It was also suggested to Mrs Joldzic that when she was present when the plaintiff saw Domenica Anderson, a case manager of the Beaches Early Intervention Centre, in May 2016, and reported undertaking certain activities, such as cooking and her attempts to work, she was less than forthcoming. As I understood the effect of her evidence, Mrs Joldzic did not disagree, but justified this on the basis that she had to be very careful what she said in her daughter's presence for fear of aggravating her problems.
14. Mrs Joldzic acknowledged her understanding that the treating professionals who cared for the plaintiff required up to date information as to the plaintiff's progress; in order for the correct medication (with appropriate dosage) to be prescribed and the general importance of telling the practitioners the truth. She stated in her evidence that if she heard something said by the plaintiff which was incorrect, she would try to correct it if the opportunity presented itself.

Credit

1. I did not find Mrs Joldzic to be a very reliable correspondent. In fairness to her, she was giving testimonial evidence many years after the event - in some cases, up to 12 years. I also make allowance for the circumstance that it must be a terribly confronting experience for a parent to learn of the daughter's development of a mental illness, irrespective of the cause, or causes, of that illness. My impression is Mrs Joldzic feels not only a fear for her daughter's future, but also that Mrs Joldzic has felt a real sense of shame about her daughter's condition - she described it herself as being "worse than cancer" and it has generally not been discussed outside the family.
2. I regret to say, however, that I formed the impression that Mrs Joldzic has developed an entrenched view that it was the subject accident in January 2012 which was the sole, or root cause of her daughter's mental illness; and this led to the position that she was incapable of grappling with facts that might indicate that the position was not as simple as she had persuaded herself that it was. Her evidence was unconvincing when, for example, she denied any awareness of, or perhaps distanced herself from, messages she received from the plaintiff's school, indicating behavioural problems with the plaintiff when she was in Year 10. Her denial that she was aware of the plaintiff seeing Dr Barnard in October 2010 was implausible. I consider that she was invested in a narrative as to the causal significance of the motor vehicle accident, which made it difficult for her to accept facts inconsistent with that narrative.
3. She often gave non-responsive answers or defensive explanations to straightforward questions. Sometimes she went on the offensive, querying the relevance of questions or sparring with the cross-examiner. I sometimes formed the impression that when she gave evidence, Mrs Joldzic either did not understand her role as being a witness .or viewed her role as acting as an advocate for the plaintiff.
4. Despite these matters, on the whole, I find that Mrs Joldzic was trying to tell the truth. She was taken in cross-examination, in chapter and verse, on a litigious excursion through a large number of treatment consultations concerning her daughter from 2012 through to 2019. It was no surprise that she could not recall the detail of these. She was distressed during cross-examination and it was no surprise that she was distressed when asked her recollection about details of her daughter's expressed "thoughts" to various medical practitioners, having regard to their content, particularly from the years 2016 to 2019: they defied rationality. Episodes of screaming and yelling by the plaintiff, which were serially reported, over a protracted period, would test the resources of the most phlegmatic, philosophical or tolerant of parents.
5. There is also a level of intrinsic plausibility in what she said. It might be thought to be something of a tension for cross-examination of her to proceed on the basis that the plaintiff was capable of many things after the accident that she was capable of doing before the accident, whilst on the other hand indicating that prior to the accident there were latent indications of the schizoaffective disorder which developed and afflicted her after the accident. In any event, much of what Mrs Joldzic said about her daughter being 'lost', or not 'knowing' what she said to mental health professionals, was supported to a substantial degree by expert evidence of mental health professionals.
6. This being said, however, I am cautious about accepting at face value any disputed aspects of her evidence unless it is corroborated or is consistent with the objectively provable facts.

Claim form

1. In her personal injury claim form completed on 26 April 2012, nearly 3 months after the accident, the plaintiff described her injuries as consisting of headaches, lower and upper back pain, the aches, dizziness, anxiety, problems sleeping and neck strain. In response to question as to how these injuries currently affected her, the plaintiff wrote that she had to reduce exercise due to physical pain, insomnia and that she had not been able to focus on the university studies. Amongst the treatment providers that she recorded in the claim form, she identified a psychologist, Ms Julia Eveck, who was reported as practising at Dee Why. She indicated that she was still receiving treatment from her at the time she completed the claim form.
2. Attached to the personal injury claim form was a medical certificate prepared by Dr Parmar (signed 10 May 2012), a general practitioner of the Dee Why Family Medical Centre, following his examination of the plaintiff on 27 January 2012. Dr Parmar diagnosed injuries to the cervical and lumbar spine, with hyperflexion, and a soft tissue knows injury. He prescribed physiotherapy in excess of 12 weeks.
3. Another medical certificate, from Dr Raju, another general practitioner at Dee Why, was in evidence. This follows an examination of the plaintiff on 23 May 2012. The doctor diagnosed cervical and lumbosacral spine strain, nasal swelling and post-traumatic syndrome, with the plaintiff being tender on her neck, nose, and lower back. He regarded the plaintiff as being 'weak and tired'. He anticipated that she would require specialist treatment from a psychologist, physiotherapy and radiologist.

Clinical records

1. The defendant put into evidence a tender bundle comprising no less than five lever arch folders, which predominantly comprised clinical notes from hospitals and health clinics where the plaintiff received treatment for her mental health after the motor vehicle accident. I supplied an indication to the defendant's Counsel early in the hearing that no assumption could be made that all of that material would be considered unless my attention was specifically referred to it (T7).

Pre-accident

1. By 2008, when the plaintiff was virtually at the beginning of Year 10 at secondary school, a note was taken of the plaintiff's attendance at a general medical practice at Brookvale which indicated anxiety, or stress as well as panic attacks.
2. Another note of a consultation at the same medical practice recorded that in April 2011, not long after her commencement at university, she was feeling stress from university and was also concerned about getting pregnant. It appears, at this point, that she had just had her first sexual encounter and it was unprotected sex.

Post-accident

1. After the accident, on 23 January 2012, the plaintiff attended the Royal North Shore Hospital. In the chronology tendered on behalf of the plaintiff (Exhibit A), express reference was made to the following other matters; some of which were later elaborated in the defendant's case.
2. On 24 January 2012, the plaintiff initially attended the Dee Why Family Medical Centre.
3. She attended that centre again on 5 February 2012 when she was referred to a psychologist. At an initial attendance with a psychologist at the medical centre she was diagnosed with Post-Traumatic Stress Disorder ('PTSD') on 15 March 2012.
4. On 12 July 2012, she attended Dr Ball, a neurosurgeon.
5. On 5 December 2012, she initially attended Dr Guirgis, an orthopaedic surgeon.
6. On 22 January 2013, she had an initial attendance with a psychiatrist, Dr Protulipac.
7. On 13 July 2013, the plaintiff was seen by Dr Vincent Chang. He recorded the plaintiff's concerns about constant worries, sweats, a heavy head, periodical anger and low mood. The plaintiff had reported to him that she needed to work hard to get good marks. She was put on the Effexor medication.
8. The plaintiff had several attendances at Mona Vale Hospital on 14 July 2013 and 12 December 2013.
9. She attended Macquarie Hospital on 27 February 2014 and Manly Hospital the next day.
10. She attended Manly Hospital on 10 and 11 February 2016 and she remained in the east wing of the hospital until 29 February 2016.
11. On 2 March 2016, she had an initial attendance with the Northern Beaches Community Mental Health Service.
12. She resumed attendance at the east wing at Manly Hospital between 24 March and 15 April 2016.
13. She had further periods of attendance at Manly Hospital between 1 December 2016 and 27 January 2017 and between 13 and 21 November 2017.
14. She also had attendances at the Northern Beaches Hospital on 15 January 2019 and 16 May 2019.
15. From March 2020, the plaintiff has seen Dr Ng, a general practitioner, at the Dee Why Medical Centre.

Plaintiff's expert evidence

1. The plaintiff relied upon the report of Dr Medhat Guirgis, a consultant orthopaedic surgeon, dated 7 January 2014. Dr Guirgis met the plaintiff on 5 December 2012, virtually 10 months after the accident, and examined her on 9 September 2013. At the time that the plaintiff saw Dr Guirgis, she complained of residual neck pain and stiffness affecting the upper half of her neck and the back of her head, with a persistent occipital headache attacks. She had explained to the surgeon that she also had lower back pain and stiffness with attacks of extension down the outer border of her right and left thighs. She explained that in the course of the accident, she hit the back of her upper neck and head on the headrest and suffered from a pain in her nose and the adjoining area of her forehead after jolting forward and striking the steering wheel.
2. Dr Guirgis diagnosed post-traumatic occipital headache attacks as a component of her neck injury; an injury to the upper half of the neck in the form of a sprain or strain with possible intervertebral disc involvement; an injury to the lower back in the form of a strain or sprain with possible intervertebral disc involvement; and post-traumatic symptoms in the right and left knee joints. He thought that the plaintiff had obtained maximum medical improvement and that her condition had stabilised for the previous 3 months and was unlikely to change. Using the MAA guidelines and the 4th edition of the American Medical Association's ('AMA') Guides to the Evaluation of Permanent Impairment, he assessed a 5% whole person impairment of the spinal nerves affecting the plaintiff's head and neck region. He also assessed a 5% whole person impairment in the lumbosacral spinal region, and a 2% impairment of the each of the left knee and right knee. All up, this constituted a 14% whole person impairment.
3. Dr Guirgis was not required to attend for cross-examination.
4. The plaintiff also relied upon the report of Dr Lorraine Jones, who is a consultant in Rehabilitation Medicine, dated 20 June 2013. That was the date that Dr Jones consulted with the plaintiff; which was 18 months after the accident.
5. On examination, Dr Jones considered that the plaintiff presented as a clear historian. She had a full range of movement of the neck and in the lower back, although she did indicate pain in the back. Dr Jones reviewed a CT of the lumber spine and MRI of the plaintiff's left knee. She diagnosed whiplash injury to the plaintiff's neck and soft tissue injuries to her back and both of her knees. Her condition had stabilised and Dr Jones was unable to ascribe any assessable impairment of the neck or lumbar spine or knee from the accident. The physiotherapy treatment that the plaintiff had received to that point was reasonable.

Defendant's expert evidence

1. The defendant relied upon a report, and an addendum to that report, of Dr Richard Sekel, a consultant in occupational medicine, both dated 18 September 2013. In the report, Dr Sekel reported on his examination of the plaintiff on that same day - approximately 8 months after the subject accident. He regarded the plaintiff as only sustaining a soft tissue strain of her neck, and local soft tissue trauma of her nose, which he would have expected to have healed within 6 weeks. He did not discern any ongoing abnormality. He did not consider that she suffered any injury to her back, either knee or any other part of her musculoskeletal system.
2. In the addendum to the report, he opined that the physical injuries had stabilised. Any impairment was unlikely to substantially change and not by more than 3% in the next year.
3. In applying MAA Guidelines and the American Medical Association's Guides to the Evaluation of Permanent Impairment to each of the allegedly affected areas of the plaintiff's body - her neck, her thoracic spine, her back, and both of her knees - he found zero whole person permanent impairment.
4. In a supplementary report (19 October 2018), Dr Sekel examined the plaintiff again. This was after reading reports from Dr Sara and Dr Protulipac and discharge summaries from Manly Hospital from 2017.
5. This was generally uneventful, although Dr Sekel did identify moderate constitutional kyphosis (increased backward angulation) of her thoracic spine, which he thought might explain the plaintiff's complaint of intermittent back ache. Interestingly, Dr Sekel noted that on the examination of the back, the plaintiff's mother signalled to him not to mention increased angulation and, according to Dr Sekel's understanding, this was because of the plaintiff's hypervigilance.
6. Dr Sekel opined that the subject motor vehicle accident was not of a major kind and maintained his view that any soft tissue injury to her neck and/or back would have resolved within 6 weeks. The kyphosis was not related to the subject accident.
7. An addendum to Dr Sekel's supplementary report produced the same result as the addendum to his first report: he did not assess any whole person permanent impairment of any of her neck, thoracic spine, lumbar spine, or both of her knees.

Dr Barnard

1. The plaintiff tendered a report by Dr Richard Barnard, a consultant psychiatrist practising in Manly, dated 27 October 2010. Self-evidently, this report preceded the subject motor vehicle accident. Dr Barnard prepared this report upon referral from Dr Verma, a general practitioner from the family's general practice, being the Dee Why Family Medical Centre.
2. He saw the plaintiff at a time when she was coming towards the end of her HSC exams, in Year 12. She reported to him what he described as a 'three-year history of emotional disturbance', which had commenced in Year 10. She reported to him episodes of an altered state of consciousness and a 'dream like state of not being in a body and feeling distance from reality'. When she was in Year 10 she had been taken to Serbia for a holiday and noticed that she was frightened of flying. She reported to Dr Barnard that whilst in Serbia she was thinking about "supernatural stuff" and felt that she 'saw' things.
3. Dr Barnard recorded her reporting that upon her return to Australia, as she was progressing through her HSC year, she was feeling anxious, disconnected, lacking in confidence and worrying about things she would not normally think about, including fears about death. She could only manage four or five hours sleep and felt exhausted the next day.
4. Dr Barnard also recorded that the plaintiff had reported having tried a range of remedies, although she had been given no prescribed medications and was not keen to take any.
5. Dr Barnard recorded that she had described her personality as "outgoing, loud and confident but given to aggressive outbursts." She reported to him that she was unaware of any psychiatric or drug or alcohol problems with her eldest brother; that is sister was prone to depression and anxiety but had received no formal treatment and that the father was at that point experiencing some stress because of his unemployment.
6. Dr Barnard diagnosed a GAD, with episodes of panic and phobic anxiety. She also described symptoms which he interpreted as dissociation.

Dr Allnutt

1. Following the accident, the plaintiff relied upon opinion evidence from a clinical psychologist, Dr Zoran Protulipac, and a forensic psychiatrist, Dr Stephen Allnutt. Dr Allnutt prepared three separate reports (1 July 2013, 16 March 2015 and 22 March 2019). Dr Protulipac prepared three separate reports (5 May 2015, 11 October 2016 and 14 April 2020).
2. Dr Allnutt has been a formally trained forensic psychiatrist for over 25 years, having studied and practised in South Africa, Canada and Australia. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. He is also currently a member of the New South Wales Forensic Mental Health Review Tribunal. He is also a Conjoint Senior Lecturer at the University of New South Wales.
3. Dr Allnutt conducted a clinical evaluation of the plaintiff on 27 June 2013. At that stage, the plaintiff was studying at University, was taking Panadeine Forte for pain; was not (currently) seeing any other psychiatrist but had already seen a psychologist, Dr Protulipac.
4. Dr Allnutt consulted with the plaintiff, apparently without her mother or anyone else in company. He recorded that the plaintiff had indicated that she had not been previously been diagnosed with a mental condition; and was unaware of any family history of mental illness. The defendant later submitted that the plaintiff must have known that these statements were false and that, accordingly, the weight of Dr Allnutt's diagnosis (at that or even later times) was impaired. In my view, however, if there was any falsity, it was not a dishonest kind. Elsewhere, the defendant has relied upon the plaintiff's giving honest accounts or reports to the mental health professionals. I do not see why she would be different with Dr Allnutt. Dr Protulipac considered that she was honest with him. In any event, Dr Allnutt had already factored into his first report Dr Barnard's opinion from October 2010. There was no suggestion - and it was not put to Dr Allnutt - that he was deceived into reading an incorrect diagnosis in 2013. Notwithstanding this, in his second report, Dr Allnutt formed his own view that, at the date of the accident, the plaintiff did not suffer from any diagnosable psychiatric disorder. Thus any false statements made by the plaintiff to Dr Allnutt in 2013 had no material effect.
5. She indicated that she had started to see a psychologist 3-4 months before seeing Dr Allnutt. This would have been in February or March 2013 and was seeing the psychologist to help her focus on breathing techniques and to 'reset' her body. She explained to Dr Allnutt that she felt a persistent sense of being 'keyed up' and anxious; manifested by a sensation of heaviness in her chest, light headedness, shakiness and shortness of breath. She felt these symptoms manifesting in 10-15 minute episodes and they were likely to occur in crowded places. Her response was to try to avoid crowds and generally withdraw. She explained that she had difficulty in sleeping; of experiencing nightmares for the first 4 to 5 months following the accident, although they were no longer occurring. She complained about diminished motivation and poor concentration. She complained of experiencing tension and a sense of vulnerability contributing to an avoidance of social situations and other pursuits (such as debating and public speaking) where she might be subjected to scrutiny.
6. Dr Allnutt had regard to an email form the plaintiff to Lauren Farrar, dated 10 February 2012 - just over 2 weeks after the accident - complaining, amongst other things, about headaches, and her worry about poor concentration. He also noted a report by Dr Barnard dated 27 October 2010 noting GAD with episodes of phobic anxiety and panic.
7. In his first report, Dr Allnutt diagnosed a GAD, with a constellation of anxiety symptoms. This was generally supportive of what Dr Barnard had diagnosed, but to this, Dr Allnutt added symptoms of post-traumatic stress and panic attacks, as well as agoraphobia and some social phobia; with some depressive symptoms. In this report, he felt that her condition had stabilised; that her prognosis was guardedly positive in the longer term; and she would require ongoing psychological consultation and a referral to a psychiatrist for antidepressant medication.
8. Dr Allnutt conducted a second clinical evaluation of the plaintiff on 27 February 2015. This was over 3 years since the subject accident. Dr Allnutt altered his diagnosis from his first report. He considered it more likely that the plaintiff had PTSD, with associated panic attacks, agoraphobia and social phobia; with a differential diagnosis of GAD.
9. The detail of what he identified as 'PTSD' symptoms was set out under the sub-heading 'Clinical issues' (pages 2 & 3 of his second report). These included:

• panic attacks (occurring on a daily basis and managed through breathing exercises);
• nightmares (but no flashbacks);
• little or broken sleep;
• diminished appetite;
• fluctuating energy levels;
• feelings of anxiety and tremor;
• poor motivation and self-esteem;
• loss of interest in recreational activities;
• susceptibility to being startled and being 'on edge' (such as when in class, or being a passenger on busses);
• emotional distancing from others;
• variable focus and concentration;
• recurrent headaches; and
• social withdrawal.

1. He summarised her symptoms in section 2 of the opinion to this report. Her symptoms manifested both anxiety and depression. The symptoms of anxiety were indicated by a prior history of nightmares, avoidance of triggers and cues reminding her of the accident, increased distress and panic attacks, hypervigilance, and emotional distancing from others. The depressive symptoms were manifested in variable sleep, reduced energy and motivation, difficulties with concentration, and loss of self-esteem. Dr Allnutt considered that the depressive symptoms arose secondarily from an anxiety disorder.
2. Dr Allnutt was concerned about what might have been indicated by her admission to hospital in February 2014 in terms of psychosis; but he interpreted this as manifesting anxiety: he did not detect symptoms of delusion, hallucinations, and referential ideas of thoughts of external control. He indicated that, at least at that stage, he did not conclude any psychotic disorder.
3. In his second report, Dr Allnutt opined that she was not suffering from any diagnosable psychiatric disorder at the date of the accident, that there was no evidence of functional impairment or evidence of significant stressors. He considered that soon after the accident, she was exhibiting PTSD symptoms. He also considered that, given the duration of the condition to the accident, her condition would have stabilised.
4. In his third report, Dr Allnutt reported on his consultation with the plaintiff in March 2019. This time, Mrs Joldzic and her husband were present in the interview to support the plaintiff. Dr Allnutt also had regard to Dr Protulipac's report of 5 May 2015, clinical notes from the Beaches Early Intervention Centre, and his earlier reports.
5. The report indicated Dr Allnutt receiving an initial account from the plaintiff and that, apparently separately, he received an account from Mrs Joldzic on 12 March 2019.
6. The plaintiff had reported to her that she had a combination of anxiety and depression. She reported nightly nightmares, reduced sleep, low energy levels, reduced motivation and concentration. She reported panic attacks three times a day, which she indicated had been triggered by thoughts of the accident. She said she felt paranoid in the car and confined her driving to local places. She said to Dr Allnutt that "My life has changed extremely after the accident. I never thought I could live so badly. Things have changed dramatically."
7. During a break that the plaintiff was taking, the plaintiff's parents continued to speak with Dr Allnutt. He reported that a sound recording of the plaintiff screaming had been played. Mrs Joldzic provided other information.
8. Dr Allnutt separately conducted an interview with Mrs Joldzic on 12 March 2019. She had indicated to Dr Allnutt that the plaintiff had never had difficulties until the motor vehicle accident, no behavioural problems at school, or difficulties socialising and that she was a bright promising student. Mrs Joldzic was reported as 'adamant' that her daughter's problems had not started at school and had observed problems starting only within a few weeks of the accident, when the plaintiff called from her bed, stating that she was unwell and unable to sleep, that she felt unwell but was unable to explain why.

Dr Grant Sara

1. Dr Sara is a psychiatrist who works with the Beaches Early Intervention Centre. He is a Clinical Associate Professor of the Northern Clinical School at the University of Sydney.
2. He provided a short report to the plaintiff's then solicitors dated 8 February 2017. He reported that over the last nine months, the plaintiff has continued to experience a significant ongoing mental health condition, featuring severe anxiety, disorganisation depression and problems functioning independently. He diagnosed her as suffering from a psychotic disorder.
3. He noted that the treatment was complicated by her marked sensitivity to receiving medication, because of side-effects which of the act to worsen her anxiety and stress. He recorded that the unusual step was taken to commence a period where she had no medication in light of the ineffectiveness of previous medications, and noted that although there had been some improvement, she remained anxious and disorganised. He recorded that the plaintiff requires a high level of supervision from her family in most tasks and her concentration and attention were poor. He found it difficult to predict whether and when her condition would ever improve and found that there was a chance of ongoing disability.

Dr Protulipac

1. Dr Protulipac conducted his first examination of the plaintiff on 22 January 2013, about a year after the accident, using clinical evaluation and psychometric testing. In his first report, dated 5 May 2015, he had regard to the results of that examination an interview with the plaintiff, the history that the plaintiff had supplied him and also the reports of Dr Guirgis (24 November 2014) and Dr Allnutt (16 March 2015). Between his initial consultation with the plaintiff on 22 January 2013, and his last consultation with her on 8 August 2013, he administered treatment. He added, and his reports plainly bear this out, that he was kept informed of further developments affecting the plaintiff's mental health, including contacts from the plaintiff's parents.
2. In that first report, Dr Protulipac recorded that following the accident the plaintiff started to develop severe headaches in addition to pain in her neck back and knees. For this she was prescribed painkillers by her general practitioner (Dr Parmar) and received physiotherapy. But this conservative treatment did not leave her of the pain which caused her to develop psychological problems, being fear and apprehensiveness towards driving, recurring flashbacks, panic or anxiety attacks, hypervigilance, insomnia, stress, anxiety and depression. Dr Parmar therefore referred the plaintiff to Charlotte Leung, initially; and subsequently referred her to Dr Protulipac.
3. The results of Dr Protulipac's initial assessment was that the plaintiff exhibited symptoms of trauma, stress, anxiety, depression, loss of concentration and impairments to short-term memory. She did not (at that stage) fulfil the criteria of PTSD, but Dr Protulipac did diagnose her with an Adjustment Disorder with Mixed Depression and Anxiety, and she received 21 sessions of therapy, which terminated on 8 August 2013. Dr Protulipac recorded that although her condition has improved to an extent - the symptoms of trauma had reduced - the plaintiff continues to experience nightmares and exhibited avoidant behaviours relating to driving. She continued to experience problems with initiating and maintaining sleep. Dr Protulipac also reported that the plaintiff had developed a psychological reaction to the changes in lifestyle associated with her physical injuries, her pain and psychological symptoms. This caused significant disturbance to a personal relationships, she reduced her working hours at Swarovski, and her academic performance at university significantly dropped. Her inability to drive forced a change of university to one which was closer to her.
4. Dr Protulipac then noted that on 14 July 2013, the plaintiff was at home and was transported to Mona Vale Hospital. She was diagnosed with an anxiety disorder and prescribed an antidepressant (Venlafaxine) on discharge. But on 26 February 2014, after another episode of anxiety, she was hospitalised at the Royal North Shore hospital overnight. She was discharged under a diagnosis of GAD with agoraphobia and a panic disorder. She was prescribed Valium. He also noted that from 2012 through to December 2014, the ambulance service attended her home four or five times, for matters relating to elevated anxiety or panic attacks. He noted that the plaintiff was very reluctant to talk about her accident and despite her poor psychological conditions, she was not keen on receiving further psychiatric treatment.
5. In his assessment, Dr Protulipac recorded that the plaintiff was "a good historian". She was polite, quiet and very cooperative throughout the assessment and treatment and answered all questions in an apparently truthful manner without giving an impression of someone who was exaggerating symptoms or trying to present herself in a more favourable light. He noted that the plaintiff had reported being of very good general health prior to the accident and had not reported to him that she has suffered from any chronic illness or disease and had denied any previous psychiatric history in her family.
6. The application of psychometric assessment indicated the presence of depression and anxiety. Dr Protulipac diagnosed her as having an Adjustment Disorder, with Mixed Anxiety and Depressed Mood, using the DSM-4 criteria (then applicable). In his first report, Dr Protulipac noted that the critical criterion for a diagnosis of post-traumatic stress - recurring flashbacks of the accident - was missing. Nevertheless, it sufficed that she suffered from trauma. A severe anxiety disorder had been triggered by trauma and was perpetuated by pain, limitations, dramatic change to the lifestyle, social isolation and serious damage to the academic pursuits. She developed significant depression.
7. Under cross-examination, Dr Protulipac was invited to reconsider his diagnosis on the assumption that, contrary to his finding of the plaintiff's pain being 'perpetuated', she had been able to engage in physical activity such as running, engaging in kick boxing, yoga and beach volleyball. It was suggested that if she engaged in those activities, there must be doubt about the pain she complained of. But Dr Protulipac said his diagnosis was not based upon her physical capacity, but upon her psychological symptoms, as reported to him, and his own psychometric testing. He disagreed with the proposition that if her pain levels decreased, her condition would ameliorate.
8. He was also referred to some other factors he had raised as affecting his diagnosis. In relation to the plaintiff's academic progress, he had believed that the plaintiff had to relocate from one university to another. He was asked to assume, however, that the plaintiff changed university in 2013 in order to change courses and asked to assume that she was able to complete a Bachelor of Arts degree by 2014 and had enrolled to commence a law degree in 2015. Dr Protulipac acknowledged that these matters would indicate little to no damage to her academic career. He said this new information would not affect his diagnosis, but it might affect his prognosis.
9. He was then referred to some other matters concerning the plaintiff's 'changed lifestyle'. Dr Protulipac indicated that although in his first report he had received a report that the plaintiff had stopped having nightmares about the accident, this matter had surfaced during the therapy he administered through 2013. He was referred to Dr Allnutt's indication that the plaintiff had not completely stopped driving, but was able to drive short local distances. Dr Protulipac indicated that social isolation was not really a function brought about by restrictions in her driving, but was the result of her mood.
10. Having regard to his receipt of a history of the plaintiff being healthy, both physically and psychologically prior to the accident, and comparing that with the problems experienced after the accident, Dr Protulipac opines that there was a causal connection between her current symptoms and the trauma sustained in the motor vehicle accident. The physical pain that she sustained in various parts of the body resulted in an inability to work and deterioration in her academic performance. Her anxiety was severely elevated and she encountered panic attacks and suffered from depression affecting almost every domain of her life, making her lethargic and unmotivated and causing 'psychomotor retardation'.
11. A significant matter, however, concerned Dr Protulipac's assumption of no prior psychiatric history. He was referred to Dr Barnard's report of 27 October 2010, whose features I referred to earlier in these reasons. It was suggested to Dr Protulipac that the features Dr Barnard referred to were very similar to what he had observed throughout 2013 and that they were all indicia of a psychiatric illness. Dr Protulipac differentiated the notions of psychiatric illness from psychological disorder or mental illness. He accepted that the circumstance, which he was asked to assume, that the plaintiff's father had a history of anxiety, depression and alcoholism, would be a significant matter to be weighed, but said that even if he had been aware of this matter, the diagnosis he provided in his 2015 report would probably have remained the same: it was his understanding of the underlying causes that would have been altered. Dr Protulipac explained that anxiety disorders may be 'endemic' or 'reactive'. If he was aware of a pre-existing anxiety, he probably would have been swayed to opine that it was an interplay of a pre-existing vulnerability and psychological shock received from the motor vehicle accident which had caused the development of the plaintiff's presenting problems. In response to this it was suggested that without knowing of the 'baseline', Dr Protulipac could not express a view whether an aggravation of that pre-existing anxiety disorder had occurred. Dr Protulipac accepted this, and said that he assumed that the baseline was 'zero', i.e. that there had been no pre-existing anxiety. Nevertheless, he said that although he had an enhanced understanding of her causes, the information indicative of an altered 'baseline' would not have changed his diagnosis and treatment. He did not agree with the proposition put to him that, in light of Dr Barnard's report, his prognosis was very shaky. I note that, in re-examination, when Dr Protulipac was asked to substantially explain in what way Dr Barnard's report would not have altered his prognosis, objection was taken (and sustained) on the basis that it was open for the plaintiff (who relied upon Dr Barnard's report) to have supplied Dr Protulipac with it and have Dr Protulipac supply a supplementary report.
12. He accepted however, that awareness of the father's history might have led to a change in prognosis. As to whether awareness of this matter might have altered her treatment, Dr Protulipac indicated that it might have, but only to a minor degree.
13. In his second report, dated 11 October 2016, Dr Protulipac noted that he had had only very limited contact with the plaintiff during 2016. He became aware however, of the hospitalisation during March and April that year and had read a letter written by Dr Grant Sara, dated 11 May 2016. After having conducted a brief assessment of the plaintiff, his findings coincided with those described by Dr Sara in the latter's letter. He noted that the plaintiff was not dealing very well with the treatment for her mental health that she was receiving in terms of timely attendance at appointments; and that she exhibited discomfort at discussing her court case, and she was reported as being very sensitive to the use of the word 'accident'. She even became aggravated at the mention of medical assessments. It appears that the purpose of the letter of instructions to Dr Protulipac (Exhibit 1), which prompted this report, was to ask the psychologist to assist as a 'support person' at medico-legal assessments. This Dr Protulipac declined to do. Indeed, Dr Protulipac went even further and opined that any further exposure of her to medico-legal assessments would most likely cause further deterioration in her mental health.
14. Under cross-examination, it was suggested that by his second report, Dr Protulipac was indicating that he had not seen the large volume of clinical notes concerning the plaintiff since his dealings with her in 2013. Whilst he did not disagree with the circumstance that he did not expressly refer to them, Dr Protulipac said that he had 'seen a tonne' of such notes.
15. In Dr Protulipac's last report, dated 14 April 2020, the psychologist recapped on his understanding of developments since his last assessment of the plaintiff in May 2015. He noted her hospitalisation, her serial attendances and assessments by a number of psychiatrists, psychologists and other mental health professionals, her inconclusive reaction to various types of psychotic to medication and her inconsistent adherence to treatment.
16. He noted that there was confusion in terms of the proper diagnosis of the plaintiff and the breadth of disagreement amongst almost all of the diagnosing doctors. He referred to Dr Allnutt's findings in his report of 22 March 2019, and the latter's diagnosis of severe PTSD which developed as a result of her involvement in the subject of a vehicle accident. Having reviewed the history as evidenced in the large body of reports, Dr Protulipac expressed support for Dr Allnutt's diagnosis of PTSD. He also observed the possibility that she may have suffered some brain damage due to the impairment of her executive function; however he agreed with Dr Allnutt that neuropsychological testing was not possible due to the plaintiff's incapacity to participate in such testing.
17. Under cross-examination, it was put to Dr Protulipac that his endorsement of Dr Allnutt's opinion of severe PTSD was contrary to the diagnosis provided in his 2015 report. Dr Protulipac accepted that this was so. One of the matters which dissuaded Dr Protulipac from a diagnosis of PTSD in his 2015 report was the absence of reported flashbacks in the plaintiff. Dr Protulipac said he understood that flashbacks were not so intense by the time he saw her in August 2013. He distinguished 'flashbacks', which he defined as dissociation and a feeling of events reoccurring and a loss of the present; with 'nightmares' which he argued may or may not be attributable to the accident. Dr Protulipac was challenged on this last aspect. It was suggested that it would be important to a diagnosis of PTSD that the nightmares relate to the incident in question; whereas under the current DSM-5 definition of the criteria, it only requires the nightmares to relate to traumatic events. He accepted, though, that not all sufferers of GAD have nightmares, and not all sufferers of PTSD would have nightmares either.
18. Dr Protulipac was referred to his last report where, at paragraph 11, he referred to the plaintiff's 'hyper-vigilance' as being one of many reasons why neuropsychological assessment for her as a diagnostic tool was not viable. It was suggested that he did not state the facts sustaining that symptom. Dr Protulipac defined this term as an 'exaggerated startled response'. In that connection, Dr Protulipac was referred to his reference in his original report (p 3) where he referred to the plaintiff's 'jumpiness'. It was suggested to Dr Protulipac that to the extent that hypervigilance was a criteria of PTSD, it would need to be triggered, or aroused, by a reference to the 'index event' (here the motor vehicle accident). I queried Dr Protulipac whether he thought that the plaintiff's reputed unwillingness to want to discuss the accident might satisfy that requirement, but Dr Protulipac said that this symptom was only illustrative of 'avoidance'. In re-examination, Dr Protulipac said that 'avoidance', manifested by a sensitivity to discussion about the accident, could be a symptom of PTSD. It was suggested that a fuller consideration of how references made to the plaintiff about the accident from a person who had a pre-accident diagnosis of GAD might have been made by him if he had seen Dr Barnard's report from 2010. Dr Protulipac agreed with that.
19. Generally, in relation to his last report, Dr Protulipac accepted in cross-examination that he had agreed with Dr Allnutt's diagnosis. He accepted that his opinion was 'derivative', to a degree, but also partly based upon his own dealings with the plaintiff; as modified by his understanding of developments subsequent to 2013.
20. Dr Protulipac was asked about his endorsement of Dr Allnutt's indication that it was possible that she might have had brain damage and that, accordingly, neuropsychological testing would have been desirable (though it would present difficulties for this plaintiff). He was challenged on this, by reference to the absence of certain matters, such as the omission of any recorded loss of consciousness and radiological investigations of the brain which were uneventful. However, whilst accepting that, theoretically, the likelihood of brain damage was low on the basis of these objective matters, Dr Protulipac indicated that damage to the brain can be indicated by matters which imaging may not identify.

School records & early symptomatology in 2008

1. The defendant relied upon a note prepared by Dr Caroline Rogers, of the Warringah Mall medical practice on 20 March 2008 (when the plaintiff was in Year 10). This consultation was soon after the plaintiff had commenced the school year and she had reported on having lots of anxious thoughts and panic attacks.
2. On 26 May 2008, the School's Deputy Principal spoke with the plaintiff about truancy and her lack of application to some areas of study. The next morning, the Deputy Principal spoke with the plaintiff's mother and informed her that the plaintiff was getting worse with suspected anxiety attacks, with an inability to focus or concentrate upon schoolwork.
3. By August 2008, the school's 'student attendance' record revealed that for year 10, there were 15 instances where the plaintiff's absences from school were not explained.
4. On 20 October 2008, after what appeared to be a disciplinary sanction imposed for breach of a rule, the plaintiff's mother was reported as asserting that the school's officers had no right to criticize the plaintiff or make negative comments to her because of medical mental health issues.

Dr Barnard's report in 2010

1. Reference has already been made to Dr Barnard's report of October 2010, when the plaintiff was on the verge of completing Year 12. But the defendant also referred to Dr Barnard's letter to the general practitioner (Dr Verma) who had referred the plaintiff to him. That letter noted that Dr Barnard had spoken with the plaintiff's mother in the course of reporting the results of the EEG. The mother had said that the plaintiff had greatly improved since the HSC was out of the way, but the defendant emphasised that the significance of the letter was to falsify Mrs Joldzic's evidence denying knowledge of the plaintiff's consultation with Dr Barnard in October 2010.

Dr Chang

1. On 13 July 2013, the plaintiff consulted with Dr Vincent Chang, of the Mona Vale Medical Practice, in Brookvale. The defendant relied upon the plaintiff's reporting to Dr Chang that she had been diagnosed with anxiety attacks when she was aged between 16 and 17 years as well as some panic attacks she had experienced.

Dr Kneebone

1. The plaintiff consulted with Dr Kneebone in November 2013. At this time, he identified the symptoms that the plaintiff presented as having as follows:

• shakiness (a tremor affecting her entire body), sweating and dry mouth exacerbated by large social gatherings;
• worry about the future and health;
• low stress tolerance;
• feelings of being nervous and 'on edge';
• initial insomnia followed by broken sleep;
• avoidance of socialising;
• aching in her lower back and knees;
• pains in her neck and forehead;
• pins and needles in the fingers; and
• muscle twitching.

1. Dr Kneebone said that she presented with a 12 month history of symptoms of anxiety and depressed mood consistent with an adjustment disorder, occurring in the context of the experience of pain and physical discomfort following the motor vehicle accident. He thought that her adjustment disorder would have resolved but had been replaced by probable malingering. He interpreted her psychological and physical symptoms as being driven by 'intentional gross exaggeration motivated by external incentives such as obtaining financial compensation or avoiding work.'
2. I note that no part of Dr Kneebone's opinions was raised by the defendant's Counsel with the plaintiff's experts, Dr Protulipac and Allnutt, during their evidence. It did not appear that Dr Cocks, whose opinions I will now turn to, had much regard to them either. I regard Dr Kneebone's report of some weight for what it indicated about an adjustment disorder - the adjustment indicating that some mental disturbance was caused by the motor accident - but subsequent information and events have otherwise falsified his diagnosis and prognosis and otherwise I accord little weight to his opinions.

2014 hospitalisation

1. The defendant put into evidence a veritable truck load of hospital records, beginning with the plaintiff's attendance at the Royal North Shore Hospital on 26 and 27 February 2014 and extending through 2018; and also records of the plaintiff's serial attendances at health clinics since 2016.
2. The February 2014 admission was said to have resulted from her not having slept for four days. Reference was made to thoughts of her boyfriend, 'referential ideas, unusual body sensations together with instances of depersonalization and the realisation with disorganised thought processing.' The defendant noted that what were omitted from the records were references to nightmares, flashbacks or intrusive thoughts arising from the motor vehicle accident.

2016 hospitalisation & attendances at mental health centres

1. The plaintiff had extensive admissions to Manly Hospital in February, March-April, November and December 2016. The plaintiff's admission in December spanned a period of virtually 2 months until late January 2017. Thereafter there were further admissions to Manly Hospital in March, September and November 2017.
2. The February 2016 admissions were said to be precipitated by relationship conflicts, involving an ex-boyfriend (Joel) and a drama teacher (Matthew). The admission in March, according to a note made by Dominica Anderson, was ostensibly concerned with a text to Matthew. A note made by Dr Grant Sara on 9 March 2016 explained the circumstances leading to her admission, referable to her sexual liaison and emotional attachment with the drama teacher. The plaintiff described to Dr Sara her feelings of restlessness, disconnection, anxiety and commentary on two hypnagogic experiences. In terms of her past history, the plaintiff described to Dr Grant somatic anxiety since year 10, worries that she might die in her sleep, intense social anxiety, depersonalisation and derealisation. She reported a family history of anxiety, depression and alcohol problems, though no known family history of psychosis.
3. The 3 week period of admission between 24 March and 15 April 2016 was attributed to agitation caused by one of the plaintiff's medications. When she was admitted for the lengthy (almost 2 month) period to Manly Hospital in December 2017, the staff received reports from the plaintiff about sexual tension, a sense of demonic eyes and energy in others, and a feeling that her tongue was too big for her mouth.
4. The main point sought to be drawn from the records, as explained by Counsel for the defendant, was to show the absence of any indication that admissions or attendances were caused by symptoms referable to the subject motor vehicle accident, but were rather attributable to other events, such as relationship difficulties or issues. To the contrary, the defendant emphasised that (a) in certain instances, the plaintiff had made statements about her heath which rejected any attribution of her symptoms to the subject accident; and (b) in other instances, symptoms apparent to the mental health professionals were evident prior to the accident.
5. An example of the latter was a note prepared by Ms Anna Bollinger of the Beaches Early Interventions Centre, dated 12 February 2016, which recorded a call received from the plaintiff's parents that morning. With Juliana acting as their interpreter, they reported that the plaintiff had been screaming at them all morning, with the plaintiff's father, in particular, reporting that she had been 'violent and aggressive'. The defendant's Counsel drew attention to the reference in the note to Juliana observing that the plaintiff had always been an emotionally labile person and had screamed at her family since her teens when things did not go 'perfectly'.
6. An example of the former was a note prepared by the Registrar of Manly Hospital, Dr Greta Hug, dated 22 February 2016, referring to her interview with the plaintiff, in which she said she felt "good, but tired". The main point taken by the defendant was the plaintiff's statements about the condition of her health. The plaintiff had opined that her stress and anxiety were contributors to her admission. More pertinently, they discussed the motor vehicle accident. Dr Hug's note was as follows: "Discussed MVA, no flashbacks, no longer distressed, no avoidance."
7. The note also recorded the plaintiff saying that panic attacks were no longer occurring.
8. Another example of the former was that on 29 July 2016, Dr Grant Sara, the Senior Medical officer of the Beaches Early Intervention Centre, recorded a note of an interview with the plaintiff not long before her intended return to university. In it, the plaintiff discussed her past history. The material part of the note was in the following terms: "Danka reports increase in acniety (sic) since Year 10, gradual loss of self-esteem, self-conscious about removal of teeth/braces in Year 10. "I started to hang out with people I wouldn't normally see". Didn't attend her high school graduation. Felt ok in first year uni but increasingly anxious and less confident as uni has gone on. Parents describe sunny, outgoing girl, popular, primary school captain. Feel major change happened with MVA - Danka hit car which maerged (sic); Danka not at fault; no loss of consciousness but some facilla/forehead bruising - hit head on steering wheel (no airbags). Danka says she feels her problems predated this." (emphasis supplied)

License renewal applications

1. The defendant relied upon copies of license renewal applications subsequent to the accident to show that, notwithstanding the plaintiff's expressed fears or concerns about driving, they did not stop her from renewing her driver's license and that, in the course of doing so, she represented that, relevantly, she had no mental disability which may affect her driving.

Assessor Matthew Jones

1. Whilst acknowledging that caution should be exercised in evaluating it, since it was prepared for a statutory purpose and its content was immune from testing [2] , the defendant placed some reliance upon the opinion of the MAS Assessor Dr Matthew Jones, who believed that the plaintiff's symptomatology was unrelated to the motor vehicle accident and would likely have occurred even if the accident had not occurred.

Dr Cocks

1. The defendant relied upon two reports of Dr Christopher Cocks, who is a forensic psychiatrist, respectively dated 15 February 2019 and 17 July 2019.
2. In his first report, Dr Cocks reported on an assessment of the plaintiff conducted at the plaintiff's home on 15 February 2019, which was conducted in the presence of both of her parents. He acknowledged that this presented a potential limitation in the openness with which the plaintiff answered questions.
3. Dr Cocks also had regard to a significant volume of material, which included the reports of Dr Sara, Dr Barnard, Dr Allnutt (excluding his report of 22 March 2019) and Dr Protulipac (excluding his reports of 11 October 2016 and 14 April 2020).
4. Dr Cocks' recorded clinical symptoms indicated the plaintiff describing a sense of hopelessness and worthlessness, sleep disturbance, persistent anxiety and panic attacks (two or three times a day), impaired concentration, limited exercise and persistent flashbacks in relation to the motor vehicle accident. The plaintiff had indicated that she did not wish to engage in psychological treatment as it was too overwhelming for her. She also stated that the prescribed medications she had received had not yielded any sustained benefit.
5. On examination, Dr Cocks found that she presented with a depressed mood, but no thought disorder; nor any cognitive impairment. He considered that she displayed limited insight, with reference to her opinion that her psychological difficulties were solely referable to the injury from the motor vehicle accident.
6. Dr Cocks reviewed the documentation, including the reports of Dr Barnard, Dr Sara and the two expert witnesses called by the plaintiff, as well as the discharge summaries from hospitals and reports from the mental health centres attended by the plaintiff through 2016 and 2017.
7. His opinion was that she suffered from a severe and chronic mental illness, which he regarded as complex. No clear diagnosis had been made. Dr Cocks placed significance on Dr Barnard's opinion (from 2010, when the plaintiff was in Year 12) as indicating psychological symptoms pre-dating the accident. He thought that the plaintiff had suffered recurrent and severe episodes of psychosis, evident initially from 2014 and he noted Dr Sara's view, based upon observable community treatment of her between 2014 and 2017, that the plaintiff suffered from a psychotic disorder. He also noted the plaintiff's presentation of an array of depressive symptoms.
8. Diagnostically, he considered that the plaintiff met the criteria of having a 'schizoaffective disorder'. This was justified on the basis of her repeated episodes of psychotic illness characterised by delusions, hallucinations, disorganised speech and disorganised behaviour. During those psychotic episodes, she displayed symptoms of a major mood disorder, being depression, mania and hypomania.
9. Dr Cocks disagreed with the notion that she might suffer from an Adjustment Disorder, on the basis of her symptoms pre-dating the accident. He also disagreed with the notion that she had PTSD. This was substantially because although the plaintiff had reported to him symptoms associated with PTSD, this was not reflected in the clinical documentation.
10. Having regard to her pre-existing psychological difficulties and his assessment of her as suffering from a psychotic illness, Dr Cocks did not consider that the motor vehicle injury was a 'significant' event, or had any 'substantial' impact on the trajectory of her psychological or psychiatric difficulties. To reduce all of them to the single event, that is the motor vehicle accident, was to neglect the complexity of her condition. The genesis of her condition was 'multifactorial'. The severity of her condition could not be attributed to the accident.
11. Dr Cocks considered that her mental condition had not stabilised. She required on-going psychiatric and psychological treatment. She had a poor prognosis.
12. In his second report, dated 17 July 2019, Dr Cocks responded to Dr Allnutt's last report of 22 March 2019 and reviewed the opinions from his first report after being supplied with documents produced by certain medical centres, and mental health practitioners. The notes included commentaries about the plaintiff's mental health condition by Dr Hug, Lucinda Bratby, Dr James Baee and Dr Bruja supplied in 2018 and 2019. Some of these practitioners' views presented a focus for part of the cross-examination of the plaintiff's mother, referred to earlier in these reasons.
13. Dr Cocks said that his opinion was unchanged in the light of these further documents. This was that she suffered from a chronic psychotic illness with an associated component of mood instability. This fitted the criteria of a schizoaffective disorder. He emphasised that the plaintiff continued to experience mood instability.
14. Although he disagreed with Dr Allnutt's diagnosis, Dr Cocks did, however, note his agreement with Dr Allnutt's description of the plaintiff's symptoms. Nevertheless, Dr Cocks elaborated the bases for his disagreement that the symptoms were consistent with PTSD. First, in his experience, persons with PTSD did not present with the psychotic symptoms the plaintiff displayed. Dr Cocks explained PTSD-related symptoms in the following terms: "Individuals with PTSD suffer trauma-related psychological symptoms such as recurrent, involuntary or intrusive memories of trauma. This can include nightmares and flashbacks of trauma. They can experience dissociative reactions in which the individual feels or acts as if the trauma event is recurring. Psychological distress is experienced with any cue associated with the trauma. Avoidance behaviour, hyper-vigilance and negative alterations in cognition and mood emerge as consequence of the trauma."
15. Secondly, he repeated the significance he placed on Dr Barnard's report from 2010, in that the symptoms he identified had persisted to date.
16. Unlike Dr Allnutt, Dr Cocks was not called to give evidence. That was a pity. In the light of the evidence Dr Allnutt gave during the hearing, it appeared to me that there appeared to be a developing convergence between those experts' respective views, certainly in relation to the description of the symptoms experienced by the plaintiff. The Court would have benefitted from the exchange of their differences on the questions of diagnosis and causal attribution of the accident to the plaintiff's current mental condition.

Defendant's submissions

1. On the more minor matter of physical injuries, the defendant submitted that there was a dearth of solid contemporaneous evidence for it. The plaintiff's case was too reliant upon medico-legal opinions. The plaintiff's case in this regard was particularly dependent upon the plaintiff's histories to the medico-legal experts and she was unreliable in certain ways. As an example, she did not tell Dr Protulipac that she had anxiety before the motor vehicle accident.
2. More generally, with reference to the notes of what the plaintiff told treating psychiatrists, a few matters were evident. She had (unlike her parents, or at least her mother) an insight into having had psychological problems prior to the motor vehicle accident. She had applied for and renewed her driver's license having represented, among other things, that she had no disabilities preventing her from driving. If, as her experts appeared to place some reliance upon the matter, she had nightmares referable to the motor vehicle accident, she did not mention this to the treating psychiatrists or other mental health professionals who she saw between 2014 and 2016.
3. The defendant submits that the plaintiff suffers from a schizoaffective disorder. She submitted that the evidence did not reach the level of sustaining a diagnosis of PTSD of the kind (eventually) identified by Dr Allnutt, which was also (eventually) adopted by Dr Protulipac. To the extent that the plaintiff was subsequently hospitalised, there were no indications that they were attributable to PTSD symptoms, but were, rather, attributable to her pre-existing psychotic disorder. Emphasis was placed upon a practical test for whether a symptom could be referable to PTSD by whether the symptom could be referable to the 'index event', i.e. the subject motor vehicle accident. Dr Allnut (and Dr Protulipac) could not be found to have sufficient evidence to sustain a PTSD analysis.

Plaintiff's submissions

1. The plaintiff submits that there were early independent indications after the accident occurred which supported the histories supplied by the plaintiff and her mother to medico-legal experts. Dr Kneebone (whose opinions were otherwise not favourable to the plaintiff) himself accepted, not long after the accident, that she might have an adjustment disorder flowing from physical symptomology attributable to the motor vehicle accident for a period of 12 months. The personal injury claim form was supported by a view of Dr Raju, 4 months after the date of the subject accident, that she had suffered post traumatic syndrome which would require psychological treatment.
2. The plaintiff's Counsel submitted that the plaintiff's mother's evidence should be accepted when she said that in early February 2012, in the early hours, when she was expected to be asleep, she heard her daughter 'yelling and screaming' and indicating that she 'could not handle this'. This, he submitted was not the sort of event identified by Dr Barnard in his report from October 2010. That report referred, among other things to some 'aggressive outbursts', but this evidence from the plaintiff's mother was in the altogether different nature of histrionics. It might be added that Mrs Joldzic gave other evidence after the event of her daughter screaming and yelling, some of which was cited in the medico-legal reports.
3. Thus, the plaintiff submitted that there were early indications, in lay and medical evidence of a psychological reaction, of some kind, which occurred after the accident and had features not present in the plaintiff before the accident. In relation to Dr Barnard's report from 2010, this did not evidence any developed psychiatric condition. All it revealed was that the plaintiff had exhibited anxiety and that she might have been psychologically vulnerable, or susceptible, to stressors.
4. The plaintiff's Counsel said that it was not necessary, and indeed improper, for the Court to conjure for itself a diagnosis in circumstances where none of the psychiatrists were able to definitively fix upon a diagnosis.
5. Dr Allnutt's evidence that she had on-going PTSD symptoms should be accepted, and preferred to Dr Cocks' evidence (at the medico-legal level). He had comprehensively reviewed documentation affecting the plaintiff from 2014 and 2016 and had consulted with the plaintiff in 2019. Dr Cocks saw the plaintiff for the first time only in 2019, by which time her psychotic condition was already well advanced. He was not well placed to opine on the efficacy, if there be any, on post-traumatic stress associated with the accident in January 2012. Dr Allnutt had seen the plaintiff on 2 previous occasions throughout the significant period of time: in 2013, 2015, and with the benefit of that information, he tweaked his opinion to diagnose PTSD with psychotic features. He was, as Counsel for the defendant acknowledged, an impressive expert witness who had genuinely tried to assist the Court without partiality.

Physical injuries and disabilities

1. I accept that the plaintiff suffered soft tissue injuries, at least, to her nose and her neck in the accident. She also sustained headaches as a result of the accident. That finding is supported by the evidence in the medical certificates supplied in support of the claim form, as well as the consistent reports that the plaintiff gave to Dr Protilupac and Dr Allnutt within a year of the accident.
2. For all but the headaches, there is no question that these physical injuries have healed; although I accept that there may be a constitutional issue in the plaintiff's back that has produced occasional pain; but that was unrelated to the accident. For the reasons submitted by the plaintiff, it is unnecessary to form conclusions of what other physical injuries were suffered at the time of the accident. They have since healed and a finding about the extent of the physical injuries will not affect recovery for the heads of damages claimed.

Impressions of the plaintiff's expert witnesses

1. Only Dr Protulipac and Dr Allnutt gave evidence at the hearing. The defendant's experts were not required to attend for cross-examination.
2. I regarded Dr Protulipac as a good witness who tried to express his opinions honestly and without any evident bias. However, to some extent, without fault on his part, his evidence was limited in three respects. First, there was a long passage of time since he last saw the plaintiff, during which significant developments had occurred which affected the plaintiff's mental health. His commentary about those developments after the first of his reports was sparse, to say the least. Second, and related to the first point, his last report substantially adopted Dr Allnutt's diagnosis of chronic PTSD. Accepting the fluidity with which diagnoses have been made about the plaintiff's mental health by an assortment of mental health professionals, it was a little difficult to credit his adoption of this diagnosis when he avowedly had rejected it in his first report in circumstances where he had not had the benefit of any personal consultation with the plaintiff in the interim. Thirdly, it was evident that Dr Protulipac was handicapped by his ignorance of Dr Barnard's report of October 2010, prior to the motor vehicle accident. As he accepted, this was material information which he had not had the opportunity to take into account.
3. All this being said, Dr Protulipac's evidence was valuable to the extent that it recorded his observations and clinical impressions of the plaintiff in the period of time most proximate to when the accident occurred. This provided a degree of corroboration and, to some extent, consistency between the plaintiff's reports in 2013 and her reports in 2019.
4. Dr Allnutt impressed me as an expert witness. He listened to every question raised for his consideration attentively and responded without prevarication. He made appropriate concessions. Appropriately enough for his field of expertise, he was not so convinced of the correctness of a diagnosis he had supplied (which had in fact altered) as to deny the validity of the diagnosis of the defendant's expert psychiatrist, but he firmly but courteously held his ground when challenged as to his views.

The plaintiff's symptoms

1. I accept Dr Allnutt's description of the plaintiff's psychotic symptoms as detailed in his March 2019 report. Dr Cocks (and Dr Protulipac) agreed with the description. It is also consistent with Dr Sara's report. That is, I find that the plaintiff has the psychotic symptoms of being: "significantly disturbed in her mental state, with symptoms of derealisation, depersonalisation, rapid thoughts, thought disorder, pressured speech, increased sexual behaviour, increased energy, poor judgement and somatic preoccupation"
2. But this is only a partial description, relating to the psychosis. It does not account for the symptoms which Dr Allnutt identified in the earlier section of his March 2019 report, which substantially reproduced his description of the plaintiff's symptoms in his report of 16 March 2015. Indeed, during his evidence in the hearing, in answer to a question by me, it was the March 2015 report which Dr Allnutt identified as being his 'best' description of the symptoms. As indicated earlier, in the March 2015, Dr Allnutt identified the plaintiff's:

• panic attacks and nightmares (but no flashbacks);
• little sleep;
• diminished appetite;
• anxiety, her 'edginess';
• variable focus and concentration;
• recurrent headaches;
• sense of social withdrawal; and
• being prone to startle.

1. I accept that the plaintiff has these symptoms. Virtually all of them had also been identified by Dr Allnutt in his June 2013 report as well. In his July 2013 and March 2019 reports, Dr Allnutt also referred to her depression. Dr Cocks also referred to the plaintiff's depression and nightmares regarding the motor vehicle accident in his February 2019 report. By January 2013, Dr Protulipac also identified symptoms of depression, loss of concentration and impairment to short term memory; in addition to stress and anxiety.

Diagnoses

1. Notwithstanding a speculative suggestion from Dr Allnutt (supported by Dr Protulipac) to the contrary, there is no evidence of brain damage. I consider that it is more probable than not that radiography conducted of the plaintiff's brain after the accident and the reported absence of a loss of consciousness on her part as a result of the accident militate against such finding.
2. After inquiry with the parties, no objection was taken to the Court having regard to the definitions of 'Post-Traumatic Stress Disorder', 'Generalised Anxiety Order' and 'Schizoaffective Disorder' contained in the DSM-5.
3. The disorders are said to have the following features: 1. 'Post-Traumatic Stress Disorder' is featured by: 1. exposure to an event involving (inter alia) actual or threatened injury; 2. intrusive symptoms associated with the traumatic event (including memories, dreams, flashbacks, distress or bodily reactions); 3. avoidance of reminders associated with the traumatic event (including, inter alia, thoughts, feelings or sensations, or people, places or situations); 4. negative changes in thoughts and mood following the experience of the traumatic event (including, inter alia, negative self-evaluation, negative emotional state, loss of interest in activities, detachment from others, inability to experience positive emotions); 5. changes in arousal which started or worsened after the traumatic event (including, inter alia, difficulty in concentrating, hypervigilance, heightened started response, irritability or aggressive behaviour, problems with sleeping); 6. symptoms lasting for more than a month; 7. symptoms bringing considerable distress and/or interference with different areas of one's life; and 8. symptoms not due to a medical addition or some form of substance use. 1. 'Generalised Anxiety Order' is featured by: 1. excessive anxiety and worry, occurring more days than not, for at least 6 months, about a number of events or activities; 2. difficulty in controlling the anxiety; 3. anxiety and worry associated with 3 or more of the following 6 symptoms (with at least some symptoms being present more days than not for the past 6 months): restlessness, being easily fatigued, difficulty concentrating, irritability, muscle tension, sleep disturbance; 4. anxiety, worry or physical symptoms causing clinically significant distress or impairment in social, occupational or other important areas of functioning; 5. the disturbance is not attributed to the physiological effects of a substance; and 6. the disturbance is not better explained by another medical disorder. 1. 'Schizoaffective disorder' is featured by: 1. an uninterrupted duration of illness during which there is a major mood episode (manic or depressive) in addition to the criterion for schizophrenia (being two or more presentations for a significant amount of time during a 1 month period, being delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behaviour and negative symptoms); 2. hallucinations and delusions for two or more weeks in the absence of a major mood episode (manic or depressive), during the entire lifetime duration of the illness; 3. symptoms meeting the criteria for a major mood episode being present for the majority of the total duration of the active as well as residual portions of the illness; and 4. the disturbance is not the result of the effects of a substance or another underlying medical condition.
4. As indicated, neither Dr Allnut nor Dr Cocks were definitive about a diagnosis. In view of the history of the plaintiff's mental decline, especially from 2016, I find that the plaintiff has a psychotic condition. All of Doctors Allnutt, Cocks and Sara agreed with that. A question, however, is whether that is a sufficiently complete diagnosis for the plaintiff's symptoms. I do not consider that it is.
5. I consider that there are weaknesses with all of the diagnoses proffered to the Court as providing a singular explanation for the plaintiff's condition.
6. It seems to me that a weakness of the PTSD diagnosis is that there are inconsistent references in the evidence to nightmares associated with driving, and no references to flashbacks. Dr Allnutt found that the nightmares had ceased after 3 or 4 months from the accident; however, Dr Cocks reported that he had been informed by the plaintiff in 2019 about nightmares in which the plaintiff re-experienced the accident. Dr Allnutt (and Dr Protulipac) received no report of flashbacks at all.
7. It seems to me that a weakness of the GAD diagnosis is that it does not appear to account for the repeated references made to the plaintiff's panic attacks; and does not account for the mood disorder, or depressive symptoms identified only after the subject motor vehicle accident.
8. It seems to me that the weakness of the Schizoaffective Disorder is that it does not readily accommodate the plaintiff's consistent anxiety and hypervigilance. Another difficulty, referred to by Dr Allnutt, is whether the psychotic symptoms are of sufficient regularity. This is one instance which might have generated productive discussion had Dr Cocks given evidence concurrently with Dr Allnutt.
9. Prior to closing addresses, I asked the parties' Counsel to give consideration to the possibility of comorbidity, as between any of these disorders. That topic had not, of course, been addressed by Doctors Allnutt or Cocks. Counsel did not embrace the notion that the Court could find comorbidities in diagnosis.
10. In my opinion, it is unnecessary for the Court to be too prescriptive in identifying any single psychiatric condition. Dr Allnutt agreed with the proposition put to him by Counsel for the defendant that there was a real likelihood that the plaintiff's presentation defied a single discrete psychiatric diagnosis (T 168.45). I accept that evidence. The plaintiff may have a psychotic disorder, meeting the definition of a Schizoaffective Disorder, which combines features of anxiety, mood disorder and PTSD symptoms. A consequence is that I find it difficult to accept Dr Cocks' somewhat exclusive preference for a Schizoaffective Disorder in preference to post-traumatic stress disorder. It appeared to me that Dr Cocks was presenting a binary and arbitrary choice (psychotic disorder, as distinct from PTSD symptoms) which is too rigid to account for the plaintiff's atypical presentation, in circumstances where the plaintiff's symptoms may be explicable by reference to a contribution, and to some extent, overlap between different diagnoses. I consider that Dr Cocks was placed at a comparative disadvantage to Dr Allnutt by not having had the benefit of seeing the plaintiff earlier than he did in 2019. Dr Allnutt, by contrast, was in a more advantageous position, when conducting a retrospective consideration of the plaintiff's 'journey' (T 190) by seeing the plaintiff in 2013 and 2015. I also found persuasive Dr Allnutt's view (T 186) that symptoms can compound, and also fluctuate (T 184). The PTSD symptoms which he identified were part of the 'mix' (T 170). I do not consider that it is decisive against the notion that the plaintiff has PTSD symptoms that a particular symptom (nightmares about the motor vehicle accident) was reported in 2013, was not reported in the clinical notes from the hospitals and clinics between 2014 and 2016, but was reported again in 2019. That reflects the not unusual degree of fluctuation in symptoms. Having regard to the nature of PTSD, I do not consider that circumstance to be inherently implausible. What the plaintiff reported to Drs Allnutt and Protulipac in 2013 was consistent with her reporting again in 2019. I do not find that what was reported in 2019 was fabricated or influenced by the exigencies of pending litigation. Nor do I place significant weight upon comparisons ventured by the plaintiff before and after the accident - expressed to mental health professionals in 2016, when her episodes of psychosis were really starting to take hold of her - apportioning causal significance to the effects of the motor vehicle accident. Statements of fact as to how she was actually feeling carried more weight.
11. I am persuaded by Dr Allnutt's view that the plaintiff has an atypical psychotic disorder, which meets the definition of a Schizoaffective Disorder, but which combines features of anxiety, mood disorder and PTSD (T181). I will elaborate further on the issue concerning the continued subsistence of PTSD symptoms in the next section on causation.

CAUSATION

1. There is no serious dispute that the plaintiff sustained some soft tissue physical injuries in the accident, and that they were caused by the motor vehicle accident. There is however, a dispute about which particular physical injuries were caused: the defendant concedes no more than that soft tissue injuries were caused to the plaintiff's nose and neck which had resolved within 6 weeks. The plaintiff argues that there were other physical injuries caused, being to her lower back and both knees, but accepts that there is no permanent impairment. Ultimately, however, the dispute is not real because in the absence of any claim for non-economic loss and the absence of any suggestion that (beyond a certain point) substantial economic loss was caused or future earning capacity diminished on account of physical restrictions, the question of what physical injuries was suffered is irrelevant.
2. The primary question is whether it was the plaintiff's involvement in a motor vehicle accident that caused her compensable mental harm in a way which satisfies the test for causation in s 5D of the Civil Liability Act 2002 (NSW).

Defendant's submissions

1. The defendant submitted that the plaintiff did not suffer any psychiatric injury which was distinguishable from a pre-existing GAD.
2. The defendant submitted that in a case where experts could not be definitive, the Court could be 'robust' with the inferences that it draws [3] . But, having regard to the plaintiff's ultimate onus of proof, where symptoms could equally be referable to PTSD, to anxiety or to other elements which made up the psychotic disorder, then the plaintiff could not discharge its onus [4] .
3. The defendant further submitted that on the premise that the Court accepted Dr Allnutt's modified view - which I have accepted - that the plaintiff had a psychotic condition with features of PTSD, that condition would have occurred in any event and, as Dr Allnutt accepted, other conditions of that psychotic disorder would have overborne the material effect of PTSD conditions.

Plaintiff's submissions

1. The plaintiff submitted that factual causation was established, by comparing the plaintiff's condition before and after the accident. It was not the case that the features after the accident reflected the GAD found by Dr Barnard before the accident.
2. The difficulty, which really went to the ultimate question of assessment of damages, and not so much to causation, was to consider to what extent the marked deterioration in the plaintiff's mental condition (since 2016, in particular) may have been influenced by the PTSD symptoms generated by the motor vehicle accident.

Statutory provisions and principles

1. By s 5D of the Civil Liability Act, the plaintiff must satisfy the two limbs of the test for causation, being both factual causation and also that the harm falls within the scope of the defendant's liability. By s 5E, the plaintiff bears the burden of proof on both those aspects and all other questions concerning causation.
2. By s 5D(1)(a), the plaintiff must establish that the defendant's negligence was a necessary condition of the occurrence of her psychiatric injury which was a consequence of her physical injury. This is a condition that must be present for the occurrence of that type of injury or, put another way, that the harm would not have occurred without it. This, as the High Court indicated in Wallace v Kam (2013) 250 CLR 375, involves the application of the 'but for' test.
3. If factual causation cannot be established, the Court may consider causation established in the 'exceptional cases' (under s 5D(2)), but that provision cannot be utilised merely to make up for an insufficiency in evidence of proof of factual causation [5] . The plaintiff did not submit that the Court should do so in this case.
4. If s 5D(1)(a) is satisfied, the plaintiff must then also establish the normative determination that the scope of the defendant's liability in negligence extends to the harm the risk of which it was the duty of the defendant, exercising reasonable care and skill, to avoid. This requires a normative assessment and is influenced by precedent, where that is available [6] . Put in practical terms, under s 5D(1)(b), a Court will consider a range of circumstances that were taken into account under the common law, including intervening and supervening causes and remoteness [7] .
5. On this last aspect of remoteness, a tortfeasor's liability will not extend beyond harm which was foreseeable at the time of the breach of duty [8] . At general law, an injury or damage suffered as a consequence of the defendant's negligence is not too remote where the same kind of injury or damage was reasonably foreseeable [9] .
6. This principle was illustrated in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, where a plaintiff's attempt to rescue workmates, who were badly burnt when a switchboard was tested, caused him to develop schizophrenia. The trial judge held that although this particular manifestation of psychiatric injury could not have been foreseen, it fell within the broad category of psychiatric damage which was foreseeable. Ultimately, the High Court determined that all that the defendant had to foresee was the occurrence of the class of injury, being mental disorder, and not the particular illness. It matters not, at the remoteness question at the causation (scope of liability) stage, whether the plaintiff had a particular susceptibility - that aspect is a factor considered at the duty stage [10] .
7. But a victim's particular susceptibility is also relevant in the assessment of damages, once causation is established. It is trite that tortfeasors must take their victims as they find them. This is an illustration of the principle relating to foreseeability of harm [11] . There is no distinction between a person predisposed to a psychiatric illness and an egg-shell skull case [12] .

Onus of proof on causation

1. Although s 5E clarified that the ultimate onus of proof on causation, in respect to both elements of causation, it did not alter the common law principles relating to the standard of proof for causation in actions for damages for personal injury. In that connection, in a claim for damages for personal injury caused by negligence, as was said by Kiefel J (as her Honour then was) in Tabet v Gett (2010) 240 CLR 537: "[111] All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. "More probable" means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty".
2. Although s 5E casts the onus of proof upon the plaintiff on any fact relevant to causation, that is a legal onus. When faced with the possibility of a pre-existing condition, under the common law, an evidentiary onus may be cast upon the defendant who contends that it is the pre-existing condition that has caused the harm subsequent to its negligence. The common law may, to this extent, carry over to causation enquiries under s 5E. On the causation question, in terms of onus of proof, and whether that onus may be discharged, in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, Ipp JA (Mason P agreeing) said: "[104] What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the "disentangling" evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition. [105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it."

Factual causation

1. It is true to say that the plaintiff's hallucinations, anxiety and panic attacks were evident prior to the accident, but it is equally true to say that following the motor vehicle accident there were signs of depression, loss of memory, nightmares associated with the accident, recollection of the pain and physical injuries she sustained in the accident, an avoidance of any desire to talk about the accident, a self-imposed limit upon driving, and difficulties with taking public transport. These post-accident symptoms might, collectively, be called symptoms commonly associated with PTSD. I will call them "PTSD symptoms". To this list, I also find that the accident intensified or, as Dr Allnutt intended to suggest, exacerbated or aggravated her anxiety and panic attacks (T 169, 173-174).
2. The motor accident generated an edginess in the plaintiff and a heightened state of alertness in relation to motor vehicles. I acknowledge that the plaintiff has continually renewed her driver's license but that does not militate against a finding of serious anxiety about driving: first, to find so would be to confuse functioning with symptomology. Secondly, there was no contradiction to the proposition that, in terms of her functioning, she is limited to driving short distances.
3. In my view, these PTSD symptoms were factually caused by the motor vehicle accident. Dr Barnard's report of 2010 did not refer to them and there were no other signs of depressive symptoms prior to the accident. Anxiety and panic attacks were referred to by Dr Barnard, but they were aggravated by the accident.
4. In particular, the onset of depressive symptoms only after the motor vehicle accident is important. They were remarked upon by Drs Protulipac and Allnutt in 2013. Their respective observations were substantiated by reports of difficulties in the plaintiff being able to concentrate and reduced motivation for physical activity and extra difficulty in reading and her university studies generally. I would not associate the depressive symptoms with a pre-existing GAD. Whilst depressive symptoms (betokening a 'mood disorder') are an important part of a psychotic disorder, such as Schizoaffective Disorder, they were not evident in the plaintiff prior to 23 January 2012. In the absence of any indication of depression prior to the subject motor vehicle accident, I find that the plaintiff would not have suffered those particular symptoms but for the accident having occurred.
5. That being so, I also find that far from simply being a trigger event for Schizoaffective Disorder, it was the motor vehicle accident which created the depressive symptoms which are a feature of the plaintiff's atypical psychiatric disorder. The defendant's negligence was also a necessary condition to the plaintiff suffering from Schizoaffective Disorder.
6. Further, the other PTSD symptoms which I have identified were thrown into the 'mix' of an atypical psychotic condition overall and, in that sense, with the aggravated anxiety and panic attacks, have more probably than not been a necessary condition of the subsequent psychotic episodes, which have so debilitated and impaired the quality of the plaintiff's life. I accept Dr Allnutt's evidence that they made the plaintiff more vulnerable than she would otherwise have been, but for the accident, to subsequent stressors in her life (T 177).
7. In this sense, factual causation for the purposes of s 5D(1)(a) of the Civil Liability Act is made out.

Scope of liability

1. In view of the authorities I have referred to, it is not necessary to find that the defendant foresaw that the plaintiff might suffer from Affective Disorder or any other specific psychotic disorder. It is sufficient, for the purposes of s 5D(1)(b) that it was foreseeable that as a result of the defendant's negligent driving, the plaintiff might suffer a psychiatric illness consequential from physical injury. This makes it appropriate, for the purposes of s 5D(1)(b), for the plaintiff's liability to extend to the psychiatric illness that it has caused, an atypical psychotic disorder, whether or not that particular disorder was reasonably foreseeable.
2. I do not accept the defendant's submission that the motor vehicle accident did no more than cause the same symptoms of a GAD diagnosed by Dr Barnard in 2010. There is, however, force in the defendant's submissions that many of the symptoms of that psychotic condition apparent in 2016 were previously alluded to by Dr Barnard in 2010. Those symptoms went beyond a mere GAD.
3. There is also force to the defendant's submission that upon the times of her admission to hospitals for psychotic episodes, in 2014 and (especially) 2016 there have been other events that have precipitated the decline in the plaintiff's mental harm.
4. In my view, it is not possible and, indeed, would be artificial to try to sever the effect of the PTSD symptoms, and contribution, to the plaintiff's atypical psychotic condition which has seriously deteriorated from February 2016. Once thrown into 'the mix', it is difficult to see how they can be 'disentangled'. As I elaborate below, the issue, in my view, relates more to the assessment of damages, where the effects of other events or circumstances for which a defendant is not responsible can be taken into account on the assessment rather than the causation requirement. I accept Dr Allnutt's views that, to some degree, symptoms may be attributable to PTSD or psychosis, or anxiety. To take a practical example, the depressive symptoms would likely have a very material effect upon the plaintiff's capacity to concentrate, and upon her motivation to study, and consequently incapacitate her in her capacity to learn. There was, as the plaintiff's Counsel indicated, a discernible falling off in the plaintiff's results in her university examinations in the semester in which the accident occurred, in comparison with the semester immediately prior to the motor vehicle accident. The circumstance that depressive symptoms developed only after the accident might, for example, have left the plaintiff more vulnerable to the effects of guilt she expressed in relation to her personal relationships in 2016. Another example, or examples, are the panic attacks and anxiety which, I have found, were exacerbated by the motor vehicle accident are, as Dr Cocks considered, also likely to be a severe impediment to her capacity to earn.
5. I accept Dr Allnutt's evidence that the PTSD symptoms have remained. Dr Allnutt agreed with the suggestion that they may have been 'overborne' by psychosis symptoms. By that, I interpret Dr Allnutt to mean that the PTSD symptoms have been reduced in their severity to ongoing psychosis in terms of their direct incapacitating effect; although as has fairly been pointed out, he made it clear that he did not think it possible to specifically apportion a level of contribution to the PTSD symptoms over other elements making up the psychotic condition (T 190, 191). In my view, however, where the plaintiff has proven that symptoms arising from a defendant's negligence are an 'ingredient' of an overall psychotic condition which is, by its nature, incapacitating, the plaintiff does not need to identify any hierarchy of symptoms, and where within that hierarchy, that ingredient, or element, fits in relation to other elements of the condition, in order to establish causation.
6. I do not interpret Dr Allnutt's reference (at T 189.40) to PTSD symptoms as being 'overborne' by psychosis, or other facets of the psychotic disorder which developed, as amounting to a concession that the PTSD symptoms no longer had any effect. That would be inconsistent with the balance of his answer to the question which prompted his 'overborne' comment, when he indicated (at T 189.49 & 190.8) that her PTSD symptoms "lingered on". What he was saying was that the other elements (which were 'in the mix') that made up the psychotic condition have 'clouded' the question of what role the PTSD symptoms play in contributing to the incapacities about which the plaintiff complains.
7. Contrary to the defendant's submission, at the level of causation, I do not find it necessary for the plaintiff to specifically identify which part of the psychotic condition which has produced the relevant incapacity is attributable to the PTSD symptoms. The defendant referred to the High Court's decision in Luxton v Vines (1952) 85 CLR 352 where, in the context of the civil standard of proof, it was said that there must be more than "conflicting inferences of equal degree of probability so that choice between them is a mere matter of conjecture". But it is the psychotic condition which has produced the incapacity to work (and other facets of life) and I regard it as being impossible to divide up the constituent components that make for that condition. Some analogy may, I consider, be drawn with a claimant who says that she entered into a loss-making transaction as a result of a misrepresentation. In that context, it is well understood that a range of considerations, including, but not limited to, the influence on the state of mind of the misrepresentation have contributed to the decision to enter the transaction; and it is unnecessary to ascribe primacy to the effects of the wrongful conduct. To concentrate only, as the defendant does, upon the plaintiff's fear or avoidance of driving is to neglect, for example, the role that the motor vehicle accident had in generating depressive symptoms which partly made up and continue to contribute to the psychotic condition.
8. I place only limited weight on the plaintiff's opinion as to what was causing her trouble; as distinct from statements of fact regarding her feelings and sensations. To return to an example previously supplied, she may have attributed her problems to guilt about something she had done affecting her ex-boyfriend. But the sensation of guilt may itself have been a manifestation of depression which, unbeknown to the plaintiff at the time she expressed the sensation about guilt, was itself attributable to the motor accident. This was the point, I take it, that Dr Allnutt was making about a short term attribution of a state of mind to an event masking a deeper event producing the state of mind (T 177.40).
9. Causation is accordingly made out. However, the significance of a pre-existing vulnerability, or susceptibility, in the plaintiff to a psychotic disorder and the probability that such disorder may have occurred in any event are matters to be considered on the assessment of damages, to which I now turn to.

The defendant's submissions

1. The defendant submits, generally, that if I was to accept that the PTSD symptoms were caused by the accident, they were so overborne by the other psychotic symptoms making up the Schizoaffective Disorder that they only modestly accelerated the onset of the illness by a very brief period, which she says was until February 2014, when the plaintiff started to become hospitalised for psychotic episodes stemming from her psychotic condition unrelated to the PTSD symptoms. Implicit in this submission is the contention (on the premise I have stated above) that the PTSD symptoms can be regarded as disentangled from her psychotic condition.
2. Although the defendant accepted that the plaintiff suffers from an 'incredibly serious mental condition', the PTSD elements, or part of, her psychotic condition were not likely to have lingered beyond February 2016. Her psychotic episodes after that have had nothing to do with her PTSD symptoms. If there has been any "remnant" of the PTSD symptoms which have lingered, it is only a fear of, limitation or avoidance of driving.

Plaintiff's submissions

1. The plaintiff's Counsel acknowledged Dr Allnutt's view that it was almost impossible to quantify how much of the plaintiff's psychotic condition may be attributed to the post-traumatic stress associated with the motor vehicle accident. He did not seek to distance himself from Dr Allnutt's view that the post-traumatic stress symptoms have been overborne by other aspects of her mental condition. As to the latter aspect, however, the plaintiff's Counsel submitted that it should not be found that the effects of the PTSD have been entirely removed, as the defendant would have it. The history of the plaintiff's mental health since 2016 has seen fluctuating symptoms. But the plaintiff still has the symptoms which could, more probably than not, be regarded as referable to PTSD: mood changes, sleep disturbance, fear of driving, exacerbation of anxiety, impairment of concentration.
2. Importantly, opinions expressed by the plaintiff as to the extent to which the accident has contributed to her state of health, as distinct from factual statements of how she is feeling, would have to be treated with circumspection. Dr Allnutt supplied a good analogy in a patient who has suffered grief from the loss of her spouse, thereafter loses her employment and thereafter suffers depression and who may express an opinion that the depression is attributable only to the loss of employment, when the depression might truly have originated from the death of her spouse. Further, although it would be speculative to ascertain any conscious or deliberate motivation in the plaintiff when stating her observations about her health (which is a subjective matter), any opinion might actually betray the symptom of avoidance (an objective sign) which the plaintiff's experts have identified as being one of the PTSD symptoms; illustrated when the plaintiff terminated her interview with Dr Allnutt in 2019 in response to the mention of the motor vehicle accident.
3. Counsel accepted that if it is appropriate to find that the accident only accelerated the onset of a psychotic condition, then damages would reduce very significantly. But he submitted that in circumstances where the PTSD symptoms endure, or put another way, remain operative, then under Malec v Hutton principles, damages should be ordered on the basis of the possibility that the forms of loss she has suffered and will in the future suffer are partly attributable to the motor vehicle accident.

Principles

1. In a context where the defendant contends that the plaintiff suffered from the development of a psychiatric condition, caused by a defendant's negligence, when she had a pre-existing vulnerability or susceptibility to a psychotic disorder, the position is generally described by Professor Luntz in his seminal text, Assessment of Damages for Personal Injury and Death (2016) at [2.2.1], as involving any one of the following types of situation: 1. where the plaintiff was almost certain to have gone through life unaffected by her 'thin skull' (or might also be called her 'pre-existing condition'), the defendant is liable for the total effect of its wrongful conduct on the plaintiff; 2. where the pre-existing condition was of a type that would ultimately have affected the plaintiff anyway, the defendant is liable only for the acceleration brought about by the wrongful conduct [13] ; or 3. where although there was a fair chance that some precipitating cause other than the defendant's conduct would have brought the plaintiff to the same state, but would not necessarily have occurred, the Court must evaluate that chance and discount damages accordingly [14] .
2. As to the last of these categories of situation, in Wilson v Peisley Barwick CJ explained that: "…whilst the (tortfeasor) must pay for bringing out that condition what he must pay must... justly reflect the fact that that condition was not merely latent (in the claimant) but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the (tortfeasor's) negligence intervened..."
3. In Seltsam v Ghaleb, Ipp JA (Mason P agreeing) said (at [103]-[109]): "[103] Therefore, according to Malec: (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities. …. [105] Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities. [106] Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition. [107] Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation. [108] As was pointed out in Newell v Lucas [1964-5] NSWR 1597 (at 1601 per Walsh J, with whose judgment Hardie and Asprey JJ agreed), the court must determine whether a comparison may be made between the plaintiff's condition prior to the injuries sustained by the defendant's negligence (including the plaintiff's economic and other prospects in that condition) and the plaintiff's condition and prospects after the injuries. Nothing in Watts v Rake and Purkess v Crittenden precludes the judge from carrying out this exercise. [109] Of course, if the evidence does not adequately establish the pre-existing condition or its possible consequences (as was the case in Purkess v Crittenden), it would not be possible to carry out such a comparison and assessment. In regard to the possible consequences, a scintilla of evidence would not suffice. The evidence must be such that a reasonable person could draw from it the inference that the possible consequences contended for by the defendant existed (see McCormick, Evidence, 5th ed, para 338, p511)."
4. In my opinion, the question of the approach to assessing damages turns upon whether the case falls within the second or third categories of Professor Luntz's formulation.
5. Consistent with the High Court's views in Malec v Hutton and the Court of Appeal's view in Seltsam v Ghaleb, although I have found that the motor accident generated PTSD symptoms which contributed to the atypical psychotic condition, the possibilities that: (a) a psychotic condition, albeit one that might, to some degree, have been different to that which is currently being experienced, would still have occurred had it not been for that accident; and, further, (b) that such psychotic condition would produce the same incapacitating effects as the plaintiff's psychiatric condition, specifically her earning capacity, needs to be reckoned with in the assessment of damages.
6. In my opinion, the plaintiff's case falls within the second category of Professor Luntz's formulation. The PTSD symptoms have facilitated the onset of the plaintiff's atypical psychotic disorder, but even without the accident, a psychotic disorder of some highly disabling kind, relevantly, affecting the plaintiff's earning capacity, would still have occurred. In that sense, the motor accident may be seen as accelerating a psychotic condition, of some kind, that would have happened anyway.
7. Dr Allnutt acknowledged this (T 187.36 & 191.30). He also had found that although they were not eliminated, the PTSD symptoms had been overborne by psychotic symptoms unrelated to the motor vehicle accident (T 180.15). The symptoms identified in 2014 through to 2016 may be viewed as the plaintiff's "prodromal state", whose symptoms were first identified by Dr Barnard in 2010. Histories reported to the plaintiff's treating mental health staff contain pre-accident references to the plaintiff's yelling and screaming, violence and aggression; as well as anxiety and panic attacks. Other events, particularly concerning issues associated with the plaintiff's personal relationships to Joel and Matthew, having nothing to do with the accident, have also been very substantial stressors.
8. But contrary to the defendant's submission, I do not trace the moment where the psychotic condition could be said to be truly apparent to February 2014. True it was that she was hospitalised for two days, but in the context of her history, that was a relatively isolated occasion. I consider that the psychotic condition may be said to have been more established by the end of February 2016, after a protracted period of hospitalisation in Manly Hospital, followed by extended care with the Beaches Early Intervention Centre.
9. In short, I find that the defendant's negligence accelerated the development of a psychotic condition by 4 years, up to February 2016 which the plaintiff would have suffered in any event. The damages award she may recover relating to the incapacity to earn caused by the psychotic disorder against the defendant need to reflect that finding.

Past out of pocket expenses

1. Back in June 2013, Dr Jones, the consultant in rehabilitation medicine, had indicated, relevantly, that the plaintiff could use physiotherapy for weekly visits for 3 months; and also Panadeine Forte tablets (once or twice a day). That opinion was not the subject of any more recent report.
2. Judgment in this matter was reserved at the completion of the hearing on 20 November 2020, subject to leave being granted to the parties to adduce further evidence on out of pocket expenses. The plaintiff subsequently obtained a Medicare Notice of Charge dated 1 February 2021. The plaintiff did not seek to reopen her case to tender a copy of that document to the Court. Be that as it may, on the basis of that charge the plaintiff claims out of pocket expenses in the amount of $6,612.65. The defendant does not dispute the content of the notice.
3. Rather, the defendant submits that on the premise that her physical injuries healed and her current psychiatric condition is unrelated to the accident, she is entitled to no more than $224.95. As indicated, however, I reject the premise that the accident did not contribute to her mental condition. The defendant's secondary submission is that any treatment that the plaintiff received after 26 February 2014 was for psychiatric treatment unrelated to the motor vehicle accident and, on that basis her out of pocket expenses would amount to $924.60.
4. Consistently however, with the hypothesis that the causal impact of the accident upon the plaintiff's psychiatric condition ceased from February 2016, the plaintiff submitted, in the alternative, that the past out of pocket expenses are $3,547.70.
5. For reasons indicated, that hypothesis is correct. I award $3,547.70 for this head of damages.

Future out of pocket expenses

1. Earlier I noted my finding that the plaintiff's PTSD symptoms still linger and are part of the mix in relation to her atypical psychotic condition overall, without it being possible to isolate precisely what part those symptoms contributed to her condition.
2. Dr Allnutt's latest report (22 March 2019) suggested consultations with both a psychologist and psychiatrist, and general practitioners, both for period beyond a year. The cost of consultations with the psychologist and psychiatrist was $225-350 per hour. The cost of antidepressant medication and antipsychotic medication was between $30-$60 per month and up to $100 each month if adjunct medication was required.
3. In my view, it is appropriate to distinguish this head of damage from the head of damage relating to loss of earning capacity. For the latter, as will be shown, the psychotic condition, which has destroyed her earning capacity, took hold even without the PTSD symptoms caused by the accident by the end of February 2016. But the need for any ongoing future medical expenses remains, in principle, partly associated with the "ongoing" PTSD symptoms. However, a very substantial discount should be imposed on recovery of loss under the this head, on account of the high likelihood that other symptoms, which make up the plaintiff's condition and which are unrelated to the motor accident, as well as a possible reduction in PTSD symptoms, will cause the expenditure on future treatment to deal with her psychotic condition.
4. At a factual level, the defendant says that the plaintiff has not proven what particular medication the plaintiff would take to deal with specifically only with the PTSD component of her psychotic disorder. For much the same reason as I consider it unnecessary to identify what part of the plaintiff's psychotic condition has been contributed to by her PTSD symptoms, so too, by parity of reasoning, it is unnecessary to establish the need for medication to such level of refinement. Suffice it to say, that the plaintiff has been taking prescribed medication for a long time now, and will require on-going consultations with general practitioners, a psychologist and a psychiatrist to assess what her needs are, in terms of ongoing medication. Although there are indications that the plaintiff is reluctant to receive counselling and assessment, I am satisfied that she will undergo necessary assessment in the future, at least to the extent of identifying appropriate medication.
5. The plaintiff submits that a buffer sum of $40,000 will be required as a combined sum for psychiatric treatment and for medication. I propose to allow it. Having regard, however, to the probabilities of other matters affecting her need for prescribed medication for her condition, I consider that the appropriate discount is 80%. That yields an allowance of $8,000.00 for this head of damages.

Loss of income (including loss of superannuation)

1. The plaintiff was 19 years of age at the date of the accident. She graduated from high school in 2010 and achieved an ATAR score of 75. Whilst undertaking her high school studies, she also completed a TAFE course in Media and Journalism, completing that qualification in 2009. Whilst still at school, she also undertook casual employment, working in a jeweller and also a chemist.
2. In 2011, she commenced undergraduate studies at the University of Western Sydney. She transferred after her first year to commence a combined Bachelor of Business and Commerce, which she commenced in 2012. That year, she also commenced employment at the retailer, Swarovski, on a casual basis.
3. The transcripts of the plaintiff's academic performance in 2011 and 2012 were in evidence. I accept the submission of the plaintiff's Counsel that a comparison of the performance in the semester immediately before and the semester immediately after the accident in January 2012 indicated an overall deterioration in her academic performance.
4. As at the date of the accident, as an adjunct to her university studies, the plaintiff was working for Swarovski.
5. In a personal injury claim form, completed on 26 April 2012, the plaintiff recorded that she had to quit her casual job as a shop assistant at Swarovski since she was unable to continue working for more than four days after the accident because of her back pain when standing and also her anxiety. She did however record that she had tried to return to work, for 4 non-continuous days, the first time being about two weeks after the accident (for 2 days) and then another week later she had tried on two further days. But this was "to no avail".
6. She had indicated in her personal injury claim form that, prior to the accident, her work arrangements were such that she whilst she was studying at university, during semester time, she planned to work approximately 25 hours per week, working Thursday nights, Saturdays and Sundays.
7. The defendant relied upon a spreadsheet produced on subpoena by Swarovski indicating that in the period just up to the date of the accident, the plaintiff had only worked 4 shifts. However, the defendant's Counsel acknowledged that, due to the nature of casual work, some weeks a person may work more or less shifts than planned, and that casual workers "take work as and when you can get it".
8. Mrs Joldzic said in her evidence that although she tried to work in a 'Shoes & Sox' shop, the plaintiff was only able to do so for about 3 days. Mrs Joldzic recalled that her daughter had tried returning to university, but found that difficult.
9. Between 2013 and 2015, the plaintiff attended Notre Dame University, undertaking a Bachelor of Arts degree with a major in Theatre Studies. In 2015, she commenced a Bachelor of Laws degree but she only completed one term. Counsel for the defendant frankly acknowledged that in the light of her past academic performance and the symptoms of her condition evident throughout 2014, to a reasonable bystander, it appeared to be optimistic in the extreme for the plaintiff to think that she could cope with the rigours of a law degree.
10. It was put to Mrs Joldzic that the only reason that the plaintiff ceased her university studies was because the plaintiff's father had expressed concern about the pressure on the plaintiff and recommended that she not subject herself to that pressure. It was also suggested that Mrs Joldzic had told the plaintiff that she should not work or study until she had come off the drug, 'Seroquel', after two years. Mrs Joldzic denied both propositions.
11. Since the accident, the plaintiff has not been able to return to work. This has been attributed to a combination of physical pain and restriction from her physical injuries but also the inability, since her accident, of being able to manage the stress associated with balancing university studies and paid work. She did, however, try to return to work as a child care worker, but it has been said that she was unable to work with any consistency.
12. The plaintiff was granted a disability support pension on 14 November 2019.
13. Dr Protulipac (5 May 2015 & 14 April 2020) and Dr Allnutt (22 March 2019) opined that the plaintiff is totally and permanently incapacitated for any type of paid employment. Dr Allnutt elaborated that the barriers to return to work included severe social withdrawal and social anxiety, reclusiveness, lack of resilience for concentration reduced motivation, distractibility, 'emotion vanity', and irritability. Her prognosis for her residual disability and capacity for work was poor, given the persistence of the symptoms and lack of effective responsiveness to treatment - if not an apparent decline in her condition despite that treatment.
14. Despite forming a different opinion as to the role of the motor vehicle accident in causing her difficulties, in his report of 15 February 2019, Dr Cocks agreed that the plaintiff was not fit for employment; lacking "any" capacity to return to the workforce. He expected that to remain the case for the foreseeable future.
15. The plaintiff claims the sum of $193,806 (including loss of superannuation). This claim (and the similar claim as to the future) has been calculated on the basis of average weekly earnings, for the 194 weeks up to trial (factoring in also lost superannuation in that period from 2017). It is notorious that in cases dealing with young people, it is difficult to quantify the value of the lost earning capacity [15] .
16. The defendant says that from as early as 2014 but no later than early February 2016, her earning capacity was destroyed by her atypical psychotic illness. But consistent with my earlier finding, she became fully incapacitated from employment from February 2016. From 2012 to 2016, because of her university studies, the plaintiff was not in a position to undertake anything more than casual retail employment. Contrary to the defendant's submission, in this period, it was not just a case of the plaintiff being physically restricted in working. The stress that she experienced, amplified by the accident, impeded her studies and had a knock-on effect on her capacity to engage in causal employment.
17. The plaintiff's original schedule of damages posited an allowance of $20,000 per year, an amount for quantum that Counsel for the defendant described as not unreasonable. However, this calculation chose, as its starting point, February 2017, when, it was suggested, she would have commenced full time paid employment. By February 2017, as I have found, the plaintiff's psychotic condition was such that, even in the absence of the motor vehicle accident, she would have been incapacitated. The defendant is not liable for loss or damage cause by psychotic disorder beyond the point which its negligence had brought forward.
18. The Parties were invited to make supplementary submissions based upon loss of income, or lost capacity, from the date of the accident through to February 2016, after judgment was reserved. In this period, the plaintiff worked would, but for the motor vehicle accident, likely have continued to work only as a casual.
19. The defendant submitted that the plaintiff did not lose any time from her employment by Swarovski until the employment ceased following her last shift on 3 March 2012. It submitted that she was unlikely that she would be able to work for more than one or two shifts whilst concurrently pursuing her studies, being between about 6-9 hours a week. It submits that following her psychiatric admission in February 2014, for reasons unrelated to the subject accident, any further loss of earning capacity beyond the end of February 2014 was not related to the accident. The defendant submits that she should only recover allowance for the 103 week period from 3 March 2012 to 27 February 2014 which at the alternative rates of $102 or $153 per week would yield the sums of $10,506 and $15,759.
20. The plaintiff submitted that as at the date of the accident, as a student, she had a casual job earning $17 an hour. After missing two weeks of work after the accident, after working for a single week, the plaintiff could no longer work. Her claim is made for: (a) 2 weeks at $153 per week ($306); and (b) 210 weeks, from 15 February 2012 to 29 February 2016 (at the same rate), being $32,130. This yields a total sum of $32,436. This, the plaintiff's Counsel submits, is a conservative calculation as it does not provide for any increase in pay; although it does assume regularity in work.
21. As indicated, I do not accept the defendant's submission that her earning capacity was destroyed for reasons unrelated to the motor accident by the end of February 2014, but rather it occurred by the end of February 2016. I accept also the weekly rate as being conservative. I therefore accept the plaintiff's claim for this head, being the sum of $32,436.

Loss of future earning capacity (including loss of superannuation)

1. There is no disagreement between the experts that on the evidence before the Court, the plaintiff has no residual capacity to work because of her psychotic condition.
2. However, since I have found that (a) it is the psychotic condition which has destroyed the plaintiff's earning capacity; and (b) the defendant's negligence only accelerated (to February 2016) a psychotic condition that would have been sustained anyway, even without the defendant's negligence, there is no basis for making an award under this head.

Future paid care and assistance

1. In closing address, Counsel for the plaintiff did not press this claim. No claim was made for past care.

Summary of heads of damages

1. I would award damages according to the following heads of damages as follows: Past out of pocket expenses $3,547.70 Future out of pocket expenses: $8,000.00 Past loss of earning capacity $32,436.00
2. This yields a total sum for damages of $43,983.70.

Contributory negligence

1. This defence was pleaded by the defendant, but the defendant made no submissions about it. As Counsel for the defendant noted in his submissions, there was precious little evidence at hearing about the circumstances of the accident. This defence is not made out.

Funds management

1. The plaintiff is no longer a minor. Counsel for the defendant noted that a consequence of findings about the plaintiff's psychotic disorder is that she is incapable of managing her own affairs. At the conclusion of the hearing, the plaintiff was given leave to provide a supplementary submission to address that matter.
2. Subsequently, Counsel for the plaintiff said, from the Bar table that he has received no instructions from the tutor regarding management, other than to note that an independent third party may be available to assist in the management.
3. Counsel for the defendant submitted that the judgment sum should be paid into Court. In view of my findings as to the nature and extent of her psychiatric condition, I accept the defendant's submission. Ultimately, Counsel for the plaintiff agreed that such order should be made.

ORDERS

1. I make the following orders: 1. I order Judgment for the plaintiff in the sum of $43,983.70. 2. Pursuant to s 77(1)(a) and (2) of the Civil Procedure Act 2005 (NSW), the judgment sum is to be paid into Court, pending the appointment of a manager of the plaintiff's estate. 3. The defendant is to pay the plaintiff's costs of the proceeding as agreed or assessed. 4. I grant liberty to apply to vary the orders made within 7 days. 5. Exhibits are to be returned within 28 days.

Endnotes

1. McLoughlin v O'Brien [1983] 1 AC 410 at 432.
2. Pham v Shui [2006] NSWCA 373 at [97]; Brown v Lewis [2006] NSWCA 87 at [90].
3. Wilsher v Essex Area Health Authority [1988] AC 1074 per Lord Bridge at 1090D.
4. Luxton v Vines (1952) 85 CLR 352.
5. Carangelo v State of New South Wales [2016] NSWCA 126 at [81].
6. Wallace v Kam at [22].
7. Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94 per Basten JA at [70].
8. Wallace v Kam at [24].
9. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 per Barwick CJ at 390, per Windeyer J at 402; H Luntz, Assessment of Damages for Personal Injury and Death (revised 4th ed, LexisNexis Butterworths, 2016).
10. Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 at [79]-[84]; N Mullany & P Handford, Tort Liability for Mental Harm (3rd ed, Thomson Reuters, 2016) [7.680].
11. Watts v Rake (1960) 108 CLR 158 per Menzies J (Dixon CJ and Windeyer J agreeing) at 164; Neall v Watson (1960) 34 ALJR 364.
12. Parker v Commonwealth of Australia (1975) 49 ALJR 221 at 222; also Commonwealth v McLean (1996) 41 NSWLR 389 per Handley JA and Beazley JA at 404E.
13. Luntz at [2.2.1], citing (inter alia) Watts v Rake (1960) 108 CLR 158, per Menzies J at 165; also Newell v Lucas [1964-5] NSWR 1597 per Walsh J (Hardie J and Asprey J agreeing) at 1605.
14. Luntz at [2.2.1], citing Wilson v Peisley (1975) 7 ALR 571 per Barwick CJ at 574 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, amongst other authorities, for this proposition.
15. Husher v Husher (1999) 197 CLR 138 at 8. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2021