Damages
106 The plaintiff claims to have been very badly affected by the collision. He puts his case this way. He fell onto the track and came to rest on the grass. He lost consciousness for a few minutes. When he came to he found himself lying near Mr Benedet, who was unconscious, bleeding profusely and having difficulty breathing. The plaintiff suffered some injuries. He grazed an arm and had a sore knee and hip and a bad headache. His neck and back were sore. He got up and walked to the top of the track. Mr Taylor, who had returned in the meantime to the velodrome, took him home. His headache had gone the next day. Within a day or so he attended the Cumberland Institute of Sport for physiotherapy and after a few weeks recovered from his physical injuries. However, he was having difficulty sleeping, a thing that had not previously troubled him, and always felt tired. He was having nightmares and shaking all the time. He had a bad dream every night or almost every night in which the subjects were violent and bloody. The frequency of those nightmares did not decline between June 1990 and November 1999, when he gave his evidence.
107 He became terribly depressed at the thought of Mr Benedet's death and suffered frequent panic attacks. It was scarcely possible to communicate with him because he cried whenever he was spoken to. He was given counselling, which had been arranged by officials at the Coroner's Court. He would not talk about the incident to anyone, even Mr Taylor.
108 Between two weeks and one month after the collision he went to the railway station and put his head on the tracks. He was frightened by a train coming in the opposite direction and abandoned the attempt at suicide.
109 He found himself unable to remain in any place where there were a lot of people and consequently saw less of his friends. He became more irritable and on occasions punched the wall or the window. On one occasion he punched Mr Taylor.
110 Although the plaintiff had substantial academic potential, he was underachieving in high school before the collision because of his love for cycling and the time he was devoting to it. After the collision his capacity to concentrate on homework was almost negligible. His parents tried in vain in get him to study. He completed the higher school certificate in 1990 and gained a Tertiary Entrance Rank of 41.3. But for the collision he would have done significantly better.
111 He enrolled at Charles Sturt University, Wagga Wagga, in a course which would have led to an associate diploma of applied science in viticulture. He arrived there in February and stayed with cycling friends of Mr Taylor's in Wagga Wagga. He was drinking to excess because of the effects of the collision upon him: the nightmares and thoughts of death, blood and violence and the increased incidence of panic attacks. He used marijuana. He satisfactorily completed one subject but failed the others. He left in March. In September he applied to withdraw from another subject on the ground of what was called serious misadventure, saying that he had suffered from an asthma attack. He began studying at home but fell behind because the panic attacks were continuing and he was still drinking to excess. His application to withdraw from the subject was refused and he was registered as having failed. In the same month Mr Taylor persuaded him to withdraw from the course sent him to work on a property he had purchased in the Hunter Valley on which he intended to grow wine grapes. In October the applicant applied to withdraw from his studies at the university, stating that if he continued in the course he might lose his job.
112 The university excluded him as a student and he appealed. In February 1992 he was told that his appeal had been upheld and he was re-enrolled on probation. He attended the university for one or two weeks in July 1992.
113 At about the same time he was accepted into a traineeship in viticulture and entered a course at Kurri Kurri TAFE. He withdrew from his course at Charles Sturt University for that purpose and finished the TAFE course in May 1993. He completed a period of on-job training and obtained a certificate under the Industrial and Commercial Training Act to the effect that he had reached the required standard in Rural Operations.
114 The plaintiff remained living and ostensibly working on his father's property but continued to be unable to cope. He continued to drink heavily. He was afraid to sleep because of nightmares. He stayed up late, and became tired and unable to work.
115 He joined the local bushfire brigade. During 1993 there was an occasion when he was called out to attend an emergency and he came upon the scene of a murder. He was so upset that he drank heavily and attempted suicide by shooting. During 1994 or 1995 his father took a shotgun from him when he threatened to harm himself.
116 During 1994 Mr Taylor was experiencing financial difficulties and asked him to return to Sydney. He did so and took a job at St Vincent's Hospital. However, he left the job after six months for fear of having to attend the mortuary.
117 The plaintiff attempted to ride a bicycle again after the collision but found that he was shaky and very uncomfortable. Mr Taylor and another cycling colleague persuaded Mr Lionel Cox, a former Olympic cyclist who had coached the plaintiff in 1989, to devise routines and exercises for him. However, although he tried for about six to eight months, he was never able to reach the standard he had previously held. He has not ridden competitively since the collision and any aim he had of being a professional cyclist has now been abandoned.
118 The plaintiff's most recent job was on the sales staff of a retail rural business. He lasted there only a couple of weeks and left because he suffered a panic attack.
119 His case is that he is unemployable and that but for the collision he would have earned wages appropriate to a viticulturist.
120 It is the plaintiff's case that he is affected by three independent conditions. The first is that he is prone to suffer from panic attacks. The second is that he is epileptic and that his seizures have been made worse by the collision. The third is that he has a post traumatic stress disorder, or an adjustment order with depressed and anxious mood.
121 The plaintiff maintained a distinction in his evidence between epileptic activity and panic attacks. He said that since the collision he had suffered panic attacks at an average rate of two per week, compared to a handful per year before the collision. Before the collision he did not suffer nightmares. After the collision he had a nightmare every night.
122 In order to understand what effect if any the collision has had upon the plaintiff it is necessary to enquire into his pre-accident history and to gain some idea of what his course of development might have entailed but for the collision. That will require consideration of his state of health at the time of the collision.
123 The plaintiff suffered a number of symptoms during childhood which attracted medical intervention. He began suffering asthma before he was four years old. He is reported to have been shy, and as having had temper tantrums. He feared going to sleep. He was said to suffer from attention deficit syndrome and was prescribed a diet which excluded preservatives, flavours and colourings. He did not fare badly at school, however, and was only occasionally reported for misbehaviour. During 1981, when he was eight and a half years old, psychological tests were carried out, showing that his IQ was in the high average to above average range. It does not appear why it was necessary for those tests to be done.
124 There were tensions in the family in which he grew up. Mr and Mrs Taylor were both practising psychologists. Both did professional work at the college which the plaintiff attended upon his entry into high school. The plaintiff's maternal grandmother was by all accounts a difficult person and called him evil. His mother called him naughty and uncontrollable. His parents had serious disagreements which manifested themselves in the presence of the plaintiff and his sisters and which eventually resulted in the marriage coming to an end in an unpleasant way in the early 1990s. His mother attempted or threatened to commit suicide on a number of occasions in the presence of members of the family, including the plaintiff. The plaintiff believed at the time that his mother was serious. She accused Mr Taylor of having had an affair with a patient. Mr Taylor later told the plaintiff that the marriage had been over for sixteen years and that his mother had had an affair with a Christian brother at the plaintiff's college. These events must, I think, have had a significant effect on a young man who had already manifested fragility of temperament and health sufficient to justify his being referred to a number of medical practitioners.
125 During his study, training and the practice of his profession, Mr Taylor had come to know a number of medical and other practitioners specialising in various disciplines. He was understandably very concerned about the health of the plaintiff and I think that it must have been he who saw to it that the plaintiff was seen professionally by a substantial number of such practitioners over the years. Among others, the plaintiff was referred to a series of neurologists and psychiatrists.
126 When he was ten or eleven years old the plaintiff began to experience what came to be called panic attacks. They do not seem to have been precipitated by any particular event. His hands would begin to shake and his heart rate would increase. He would hyperventilate. There was no loss of consciousness.
127 During 1985 the plaintiff entered Year 7 in high school. During the school holidays, when he was twelve years old, he suffered a nasty collision. He lost control of his bicycle at sixty kilometres per hour and ran into a rock face.
128 The plaintiff's shaking, hyperventilating attacks continued. An electroencephalogram carried out during 1985 showed epileptic activity, though Dr Corbett, neurologist, thought that the plaintiff's symptoms were likely to prove to be due to a combination of anxiety attacks and hyperventilation. At least part of the reason for Dr Corbett's opinion appears to have been that the plaintiff was able to continue cycling during these attacks.
129 On 17 February 1986 the plaintiff had what was described as an episode and was late for school. A week later another EEG was carried out and there was, according to Dr Corbett, no suggestion of epilepsy. By the following month the hyperventilation attacks had ceased.
130 In January or February 1987 the plaintiff experienced shaking prior to the commencement of a championship race at the velodrome. He recovered and took part in the race.
131 In March 1987 Dr Surgeon, the plaintiff's general practitioner, referred him to Dr Hansen, psychiatrist, who remarked on the plaintiff's mother's phobic anxiety with panic and observed that that might be a familial disorder. He mentioned that the plaintiff had a mild degree of dyslexia and that that "as well as a few difficulties" had set him back at school. He thought the plaintiff ambitious in the work he was undertaking and noted that a recent cycling accident of Mr Taylor's seemed to have triggered an exacerbation of the plaintiff's panic disorder.
132 In August 1987 the plaintiff was found in the toilet, with his pants down. The significance of that is that the plaintiff has told practitioners that one of the feelings he has with the onset of an episode of shaking is of a need to empty his bowels. He was shaking and saliva and blood were coming from the mouth. Presumably he had bitten his tongue. He was initially incoherent and confused and a had a lump on the head. He was referred to Dr Terenty, neurologist, who thought that he had had an unequivocal generalised epileptic seizure and commenced him on Tegretol.
133 In July 1988 the plaintiff's general practitioner, Dr Surgeon, noted that he had suffered drowsiness and dizziness off and on for five weeks, but thought that that might have been due to the Tegretol.
134 Dr Terenty saw the plaintiff again in August 1988. His EEG showed bilateral spike and wave complexes and sharp wave activity in the right frontal region. She felt that the shaking turns might be epileptic.
135 She saw him again in February 1989. He had been under stress in the preceding week because of his selection for the National Cycling trials and because of some disagreements at home and he told Dr Terenty that his behaviour had been abnormal in a way he was not able to define well. He had awoken that morning with a twitching of his body and felt anxious and slightly nauseated. His parents had given him Valium orally but that had produced no effect. He had been admitted to hospital and had suffered an epileptic attack lasting seventeen hours.
136 On examination he was anxious and "rather inaccessible". He had tachycardia and there was a fine twitching that shifted from side to side. An EEG showed almost continuous generalised fast spike and wave activity and Dr Terenty and her neurologist partner Dr Cant agreed that this indicated that he was in petit mal status. He was given intravenous Valium and his twitching stopped and the epileptiform activity disappeared from the EEG. When he awoke the next morning his symptoms had abated and his EEG was normal. He was commenced on Epilim. Dr Terenty thought it possible that there had been a severe panic attack which had induced hyperventilation which had precipitated petit mal status.
137 In a letter to Dr Surgeon written on 27 February 1989 Dr Cant said that it was apparent that psychological factors were playing a significant role in the control of the plaintiff's epilepsy and that that had been discussed with his parents.
138 The plaintiff continued generally under the care of Dr Terenty or Dr Cant and continued to take Epilim. Dr Cant wrote on 24 August 1989 that he had been free of all seizures since the one of February that year.
139 The plaintiff wanted to obtain a driver's licence but Dr Cant advised him to wait at least a year.
140 Notes of Dr Surgeon, probably made in about January 1990, record that up to that time the plaintiff had suffered four falls from his bicycle during road work but that the plaintiff did not think that he had lost consciousness in any of them.
141 Between 1990 and 1994 the plaintiff continued on Epilim. For most of the time he was living on Mr Taylor's farm. I am satisfied that he was drinking heavily during that time, one result of which was that his epilepsy was poorly controlled. Not surprisingly, he suffered epileptic symptoms, including one apparently serious seizure in April 1993.
142 In March 1994 Dr Barclay, psychiatrist, saw the plaintiff at Mr Taylor's request. In July Dr Barclay referred him to Dr Warren Kidson, an endocrinologist, who noted his long history of complex epilepsy and that he had been off alcohol for eight months. He concluded after tests that the plaintiff had mild diabetes with reactive hypoglycaemia. The plaintiff was grossly overweight at one hundred and seventeen kilograms.
143 In August 1994 the plaintiff started seeing Dr Robert Hampshire, psychiatrist. Dr Hampshire diagnosed his epileptic episodes as panic attacks and took him off Epilim. He treated him with Valium regularly and with EMDR.
144 The plaintiff took an overdose of Valium whilst under Dr Hampshire's treatment. In October 1994, having returned to Mr Taylor's farm, he went to Singleton hospital with his old symptoms, including shaking. In December 1994 he was taken to the same hospital with a panic attack and there suffered a major tonic/clonic seizure with loss of consciousness.
145 In January 1995 he began seeing Dr Kevin Vaughan, psychiatrist, and spoke about severe episodes of intense discomfort, characterised by sudden palpitations and shaking in arms and legs, associated with feelings through his body "like an electric shock". He was getting these feelings up to ten times a day. He complained of nightmares as well.
146 On 9 February 1995 Dr O'Sullivan saw the plaintiff and thought it unlikely that he had true epilepsy. He thought the history more consistent with panic attacks.
147 Early in 1995 the plaintiff began riding a motorcycle.
148 In March 1995 Dr Terenty again put the plaintiff on Epilim and expressed the view that there was no doubt that the plaintiff had epilepsy.
149 In March 1995 the plaintiff was admitted to Hornsby hospital having punched through a glass window after an argument.
150 In May 1995 the plaintiff was taken to Hornsby hospital after "fitting". Mr Taylor told staff that he had drunk three-quarters of a bottle of vodka. The seizures were described as "generalised" with tremors in all limbs and eyes rolling back, followed by stiffness.
151 In August 1995 the plaintiff was admitted to Hornsby hospital and was discharged following forty-eight hours of acute anxiety, pulling his hair, pinching himself and being generally greatly distressed. The only trigger that could be identified was his having ceased smoking three days earlier.
152 By February 1996 the plaintiff was still complaining to Dr Vaughan of periods of anxiety, but said that his distressing dreams had become less intense. Dr Vaughan thought that the plaintiff had suffered from post traumatic stress disorder but that treatment and antidepressant medication had improved him to the extent that he no longer satisfied the criteria for that diagnosis.
153 In June 1996 the plaintiff consulted another psychiatrist, Dr Canaris, and gave a history and range of symptoms, including descriptions of flashbacks and episodes of the same anxiety and dissociation. In September 1996 Dr Canaris recorded the recurrence of nightmares and depressed mood. The plaintiff was then under pressure from his father about his performance in the vineyard and was subject to the additional stress which his forthcoming marriage had placed upon him. Dr Canaris noted marked mood swings.
154 He last saw the plaintiff in October 1996 after he had been on his honeymoon. He was again becoming anxious and depressed, with episodes of flashbacks and unpleasant thoughts and Dr Canaris formed the view that the major stressor was the approaching litigation. The plaintiff was facing the prospect of not only of this case but was being sued by Mr Benedet's family.
155 Dr Canaris was of the firm view that the plaintiff had post traumatic stress disorder and thought that the mood swings were characteristic of that disorder.
156 The plaintiff has been treated by a psychologist, Dr Walker, since April 1996. Dr Walker is acquainted with the plaintiff's parents and first saw him, I think, at the request of Mr Taylor. She has seen him once per month or more frequently ever since April 1996, in sessions ranging between one and one and a half hours. She has administered psychological tests. She has treated the plaintiff with hypnosis. She has made extensive notes of their conversations.
157 She said that in April 1996 the plaintiff fulfilled all the criteria for post traumatic stress disorder. She thought that the plaintiff was also suffering from panic disorder, and that was the problem she first addressed in therapy. He was concurrently suffering major depression with sporadic very strong suicidal impulse.
158 In a report dated 27 October 1997 Dr Walker expressed the opinion that the plaintiff had shown significant improvement, though he still experienced some of the symptoms of post traumatic stress disorder when confronting the prospect of the court hearing. She thought that although he had made significant headway he still suffered significant vulnerability, depression and panic proneness as a direct result of the collision.
159 When the plaintiff commenced this action in 1998 the latest neurological opinion was that of Dr O'Sullivan, who had seen and advised the plaintiff from 1995 onwards. He was aware that the opinion had been expressed that the plaintiff had epilepsy but concluded after further investigations and assessment that he did not. In a report of 29 April 1997 he expressed that conclusion to have been confirmed by the fact that the plaintiff was not on anti-convulsants, had had no turns and that his panic attacks were being controlled by drugs not ordinarily administered for epilepsy.
160 Dr Walker has always held the view that the plaintiff has suffered from epilepsy, having witnessed him during a major seizure. She is also of the view, however, that the shaking which affects the plaintiff on more frequent occasions is not epileptic in origin but is associated with high levels of anxiety. She and the plaintiff agree that the occasions of that shaking may properly be called panic attacks.
161 According to Dr Walker, the plaintiff's anxiety levels and frequency of panic attacks increased during the second half of 1998. The approach of his court case contributed. His drinking continued.
162 In December there was a fight at his wife's parents' house and she left him. She obtained an Apprehended Violence Order. He decided to commit suicide and told Dr Walker so on the telephone. Dr Walker managed to have a message sent to Mr Taylor and police and an ambulance were sent to the plaintiff. He was admitted to Maitland hospital overnight, having apparently overdosed on Xanax and alcohol. He was allowed to leave on the following day but again became very drunk. Somehow the house on the Hunter Valley property burned down. Again the plaintiff was admitted to Maitland hospital and during the next five days underwent numerous seizures. Their precipitation was put down to withdrawal from Valium and alcohol.
163 The plaintiff attended Dr Walker's rooms at the end of January 1999, suffering what she called panic attacks. Whilst Dr Walker was out of the room for a moment the plaintiff fitted and was found semi-conscious under a table. Dr Walker doubted the correctness of the diagnosis made at Maitland and observed that the plaintiff's drinking was sporadic rather than continuous.
164 Dr Walker's opinion is that the plaintiff suffers from post traumatic stress disorder and has suffered variable depression, at times severe with strong suicidal impulse, panic disorder and epilepsy. She draws attention to the seriousness of the collision itself and to the plaintiff's feelings of fear, helplessness and horror on regaining consciousness, to the recurrent recollections with dissociative symptoms, disturbing dreams, distress at recurring memories and reminders, to his persistent avoidance of stimulated associated with trauma, particularly his resistance to treatment, his inability to express loving feelings, his low libido and his feeling of having no personal future, to his difficulty in sleeping and to the long time the symptoms have persisted since the collision.
165 Dr Andrew Bleasel, a neurologist specialising in epilepsy, saw the plaintiff for treatment in December 1998. The plaintiff told him that since the collision his panic attacks had become worse and that there were two types. The new one was associated with confusion and lasted for some hours or days, always ending with a generalised convulsive seizure and loss of consciousness. He suffered two or three of those attacks per year. The usual type of attack, without confusion, continued to occur weekly. The EEG confirmed a non-convulsive status epilepticus with a right frontal prominence of the epileptiform activity. The plaintiff improved on Valium and Dilantin. It was not clear to Dr Bleasel or to his colleague Dr Schultze whether the longstanding panic attacks also represented partial seizures or whether they were a symptom of an independent psychiatric disorder.
166 A further EEG was done on 23 March 1999. There was bi-frontal epileptiform activity but no sign of the non-convulsive status seen in the previous EEG. Dr Bleasel diagnosed frontal lobe epilepsy, with the possibility of a partially treated idiopathic generalised epilepsy.
167 In a report of 17 April 1999 Dr Bleasel recorded that he had again seen the plaintiff on that day. He had not had any of his typical "panic attacks" but over the past two months had experienced what he described as the beginning of a panic attack. He had a sense of his heart beating and of a desire to open his bowels but it did not progress further and disappeared. Dr Bleasel came to the view that it was likely that the plaintiff had frontal lobe epilepsy, which had begun in adolescence, and that the so-called "panic attacks" were in fact frontal lobe seizures. Their duration was an unusual feature, but since Dr Bleasel had recorded an episode of non-convulsive status epilepticus he thought it possible that the prolonged episodes reported by the plaintiff were in fact the same thing.
168 Dr Bleasel was unsure why they should have become worse after the collision. He thought it intriguing. It was possible, he said, that the plaintiff had suffered some minor head trauma that had worsened the epilepsy. Another possibility was that his excessive alcohol consumption in the months and years following the accident had worsened the control of his seizures.
169 Dr Bleasel thinks that the plaintiff had had epilepsy since the age of eleven or twelve and that the chances of a remission to a point where he no longer needed to take medicine was extremely unlikely. He thinks that the chances of the plaintiff's becoming seizure-free was relatively small, less than ten or twenty per cent, and that the plaintiff would probably require different medications. He thinks that reduction in stress and an abstinence from alcohol might lead to a fifty per cent chance of improvement. It is possible that the incidence of attacks might increase with sleep deprivation, stress or overindulgence in alcohol. He observes that the plaintiff has quite an unusual epilepsy to be mistaken as panic attacks. These manifestations that have been so described could, he said, go on for some days without ending in a convulsion. They seem to last hours in a day.
170 Dr Bleasel was asked about the opinion of Dr Terenty that a panic attack might have induced hyperventilation which in turn led to petit mal status. Dr Bleasel disagreed with that reasoning and suggested that there was one problem only, that of epilepsy. The panic attacks had been misdiagnosed as panic attacks and were epileptic seizures. However, he conceded that it was possible for an anxiety attack and an epileptic seizure to happen at the same time.
171 Dr O'Sullivan has changed his opinion and now agrees with Dr Bleasel.
172 I think that the opinions of Dr Bleasel and Dr O'Sullivan should be preferred to that of Dr Walker. I am satisfied that the plaintiff has been epileptic from the age of ten or eleven years and that the symptoms of periodic or occasional attacks which I have summarised, including those which he calls "panic attacks", result from his frontal lobe epilepsy.
173 The plaintiff asserts that he has been and will continue to be more seriously affected by his epileptic condition because of the direct and indirect effects of the collision upon him. Dr Bleasel and the other neurological experts who have given evidence appear to agree that stress which leads to sleep deprivation will in turn lead to an increased susceptibility to epileptic seizures and that alcohol taken in excess may inhibit the effect of anti-convulsive drugs and render the patient likely to an increased frequency of seizures. Head injury might have the same effect.
174 It is the plaintiff's case that his epilepsy has been worse since the collision for these reasons. His grand mal seizures have been few in number and are well documented. The difficulty lies in knowing whether the lesser seizures, during any of which the plaintiff would have remained conscious and able to function to some degree, have increased in frequency.
175 It was put on behalf of the defendants that the plaintiff had exaggerated his symptoms. The case was put by counsel for Mr Keogh and the Touch Association in the following passage of cross-examination of Dr Walker, the psychologist who has been treating the plaintiff since 1996 -
Q. Isn't it a most reasonable analysis of what has happened to the plaintiff that following the accident he has gone along satisfactorily from 1990 through until sometime in the latter half of 1994 and then has been taken off Epilim by Dr Hampshire and having ceased anti-epileptic medications, has succumbed again to the effects of that disease and that his subsequent anxiety and distress are associated with that mistreatment of his underlying organic problem?
A. The problem is that I thought the history didn't show that he coped adequately after leaving school.
Q. When you refer to the history for that, Doctor, you are talking about what he told you?
A. What he told me yes.
Q. As recorded in those notes?
A. Yes, that's right.
176 The reference to "those notes" is to extensive notes taken by Dr Walker during many consultations with the plaintiff.
177 Dr Bleasel refers to the plaintiff's "panic attacks" as a prodrome, an epileptic stupor which, notwithstanding the suggestion in the name itself, may not lead on to any other form of epileptic activity. Symptoms often stop there. There is no objective sign by which the frequency of occurrence of such epileptic activity can be measured. None of the expert witnesses has been in a position to observe the plaintiff for long enough to draw any conclusion about that. The evidence for increased frequency comes only from the plaintiff himself and, to a more limited extent, from Mr Taylor.
178 The plaintiff was attacked as being an unreliable witness. It was put that following the treatment of the plaintiff by Dr Terenty and Dr Cant in 1989 and the administration of Tegretol and then Epilim it was quite obvious to the plaintiff and Mr Taylor that the plaintiff was suffering from and was being treated for epilepsy. Yet, it was submitted, the plaintiff had been at pains to put across to experts who were likely to give evidence that there was some doubt about that. According to Dr Westmore, a psychiatrist called on his behalf, the plaintiff told him that in October 1999 that epilepsy had only recently been diagnosed. The plaintiff's explanation was to say that what he had said to Dr Westmore was that it had only recently been confirmed, leaving the impression that Dr Westmore had made a mistake. It will be recalled, however, that the plaintiff personally has always believed that his panic attacks are not epileptic in origin.
179 It was submitted that, against Dr Cant's advice, the plaintiff had applied for a learner driver's permit. Records produced by the Roads and Traffic Authority show that a learner's permit was issued to the plaintiff on 1 June 1990 and that a provisional licence was issued on 2 July 1990. An unrestricted licence followed on 4 June 1991. The plaintiff was asked about this and said that Dr Surgeon had given him a letter to give to the Authority. The records of the Authority were produced to the Court on subpoena but no letter was contained in or referred to in them. The first mention in the records of epilepsy is an entry on 14 May 1991. The first mention of any nervous disorder is on 26 September 1994.
180 It was put that the plaintiff had not been frank with the authorities at Charles Sturt University. When applying to withdraw from a subject in September 1991 he said that he had suffered from an asthma attack. In fact that was not the reason at all and, as he told Dr Walker, he had been drinking excessively during his time in Wagga Wagga. His father had removed him from the university at the end of the first term, having travelled to Wagga and found him drunk, having vomited into a bucket in his room. It was put that his use of alcohol had not materially changed during the intervening months and it was not because of asthma but because of the plaintiff's continued excessive use of alcohol that he desired to withdraw from the subject again in September.
181 Secondly, in October 1991 he wrote a letter to the university stating that he had been requested by his employer to withdraw from his then current study of viticulture because the work on the vineyard had become rather intense and that he was needed to work, and that if he could not do so his job would be terminated. That, it was submitted, was untrue.
182 It was submitted that there was a conflict between the evidence of the plaintiff and Mr Taylor about the reason why the plaintiff returned to Sydney from his work at the vineyard. The plaintiff told the Court that it was because Mr Taylor was in financial difficulties whereas Mr Taylor said that the plaintiff could not do the work.
183 Then it was submitted that the plaintiff had failed to seek treatment following the asserted dramatic increase in the incidence of attacks. It was pointed out that there was no remarkable seizure until the plaintiff was taken off Epilim in 1994.
184 A letter was written by Dr Surgeon on 29 October 1990, stating that the plaintiff had been under Dr Surgeon's care for five years and referring to the collision on 6 May 1990. It said that since then the plaintiff had refused to talk to his family about the incident and had refused all professional counselling offers. His relationships at home and school had suffered severely and that that would certainly have greatly affected his ability to study and to do his higher school certificate. The letter concluded with the observation that the fact that the plaintiff could not bring himself to talk about the matter underlined the distress it had caused him.
185 It was submitted that the remarkable omission from the letter was any mention of increased frequency of shaking attacks. Neither was there any mention of symptoms of anxiety or of panic attacks in Dr Surgeon's notes from July to December 1990.
186 On 2 November 1990 Mr Khoury, the Year 12 co-ordinator of the plaintiff's college, wrote -
Earlier in the year I was informed by Roy's father that Roy was involved in an accident while on his bicycle and that a man died. Since that accident, in my capacity as Year 12 co-ordinator, I have observed a change in Roy's overall manner. Immediately following the accident, Roy was visibly quiet and withdrawn. He became unusually inactive and did not involve himself a great deal in classroom or discussion. He seemed lethargic and disinterested (sic).
There has been some progress and improvement in Roy's attitude in the past months. However, I have no doubt that his studies and his overall academic development were greatly disadvantaged by the bicycle accident. This is compounded by the fact that Roy is a competitive cyclist and loves the sport. He has been adversely affected both academically and socially.
187 The implied criticism was that the omission from that report of any mention of shaking was remarkable.
188 Mr Taylor was asked about the condition of the plaintiff after the collision. He said that he screamed and had bad nightmares every night and could not talk about the accident. He rejected the idea of treatment. He tried to avoid sleep and was always tired. Mr Taylor was asked how often after the accident he would see the plaintiff with an anxiety attack, as it was termed, and said that such attacks were ten times as frequent as before, were very much more severe and would last longer. One would occasionally run into another. He said that by two or three months after the collision it seemed as though they were happening almost every week.
189 It was submitted on behalf of the defendants that Mr Taylor should not be accepted in this evidence.
190 Of course, the plaintiff has an interest in exaggerating his symptoms, and I think that some of the criticisms of him that I have summarised show that he is not always truthful in describing important events and may be inaccurate. I am not prepared to accept on his evidence alone that the panic attacks, which I think are epileptic in origin, occur as frequently or last as long or are as debilitating as he would have the Court accept. On the other hand, I think that the evidence of Mr Taylor is reliable in this respect. I am satisfied on his evidence that there was a substantial increase in the incidence of shaking and in the intensity and duration of attacks after the collision.
191 I do not think that the plaintiff's fall can itself account for the increase in epileptic symptoms. It is said that after he fell to the track he lay unconscious for about ten minutes, but all the accounts of the period of unconsciousness come from medical reports, which must in turn have derived from whatever the plaintiff himself said about the matter. He cannot have known how long he was unconscious and must have been relying on what somebody else told him. When he came to, the plaintiff began, with help, to walk on the track and although he complained of a bad headache his main concern was to get his sore muscles moving again. When his father returned he did not complain of head injury. He had been wearing a helmet, of course. As a trained psychologist having a detailed knowledge of the plaintiff's medical history, including Dr Terenty's diagnosis of epilepsy and prescription of anti-convulsant drugs, Mr Taylor would, I think, have been alert for signs of head injury and any possible epileptic signs. In deciding to take the plaintiff home rather than to hospital he must have had no concerns in that regard. This may be said with some confidence in view of the readiness with which Mr Taylor has been prepared over the years to refer the plaintiff to medical practitioners when appropriate. In view of this and in the absence of evidence of head injury or of unconsciousness for any substantial period I think it unlikely that head trauma had any part to play in the exacerbation of epileptic symptoms.
192 I accept the evidence of Mr Taylor that for a substantial time after the collision the plaintiff slept badly, either because he stayed awake so as to avoid nightmares or because he was woken by them, and I think that such a serious interference with his sleep must have led to increased frequency, intensity and duration of his epileptic seizures. However, I do not think that those effects of the collision have lasted indefinitely. I find it difficult to accept the plaintiff's evidence that the frequency of his nightmares has not declined in the ten years since the collision. Although he may well still have nightmares, I do not think that after this length of time they can be attributed to the collision. The plaintiff's pre-accident history shows that from an early age he suffered indifferent health and was subject to psychological upsets. For reasons which I shall explain, I think that the various effects of the collision on the plaintiff have by now been subsumed by the effects of other events and activities in the life of the plaintiff.
193 The management of the plaintiff's epilepsy has been attended by a number of difficulties, first because his symptoms are so unusual that for some time treating practitioners doubted whether the plaintiff was epileptic. An important feature of the plaintiff's medical history has been the recurrence or exacerbation of what are now known to be epileptic symptoms under the influence of temporary stress. After he was put onto Tegretol he continued to experience epileptic symptoms under the stresses of his forthcoming selection for the National Cycling trials and of the unpleasant atmosphere at home.
194 After the collision but before sitting for the Higher School Certificate the plaintiff began to drink alcohol to excess. Since then he has regularly resorted to the abuse of alcohol. On some occasions his drinking has been a reaction to the stress he has been under, but there is no reason to think that that is the only reason why he drinks to excess, and I think that he is prone to the overuse of alcohol independently of stress. I do not think, however, that his use of marijuana at Wagga Wagga was significant.
195 There is no doubt that the plaintiff was badly affected by the collision. The very fact that he could not seriously apply himself again to cycling demonstrates that. I accept that the collision was responsible for the exacerbation of the plaintiff's epileptic symptoms in that the plaintiff responded by drinking to excess, so inhibiting effects of the anti-convulsive drugs he was taking, but I think that that effect, like the deprivation of sleep, has by now run its course.
196 Because of his fragile personality the plaintiff was liable to react badly to stress. It seems possible that stress produced whatever symptoms caused Mr Taylor to have the plaintiff seen by medical specialists when he was very young. The stress of imminent trials, selection and races was likely to exacerbate his symptoms. I do not doubt that the approach of the higher school certificate examinations would have had the same effect.
197 Since the collision there have been numerous substantial occasions of stress. The plaintiff has responded by resorting to the use of alcohol and, whether because of its effects upon his drug regime or because he was deprived of sleep or for other reasons, he suffered epileptic symptoms of the greater or the lesser kind. Whilst he was living in the Hunter Valley from June 1991 onwards he made two and perhaps three suicide attempts in response to stressful situations. He was concerned when police executed a search warrant at the vineyard, suggesting some impropriety on the part of Mr Taylor. His parents' marriage came to a bitter end in the early 1990s. He gave up football because of the stress of seeing a colleague injured in a tackle.
198 He married in September 1996. He was still drinking and trying to hide the fact from his wife. He continued to drink to excess until the end of 1998. In April 1998 he had to be admitted to Maitland hospital having witnessed a fatal semi trailer accident. In December 1998 there was a fight at the home of his wife's parents and his wife took out an apprehended violence order against him.
199 Individually and in combination these circumstances were serious. The plaintiff's personality was such that they would have had the same effect upon him whether or not he had been involved in the collision.
200 A further independent exacerbation of his condition took place late in 1994 when Dr Hampshire took him off Epilim and he began to suffer grand mal seizures.
201 Dr Vaughan and Dr Canaris, who saw the plaintiff in 1995 and 1996 respectively, noted a history of periodic nightmares, anxiety, depression and mood swings and considered him to be suffering from post traumatic stress disorder. However, Dr Vaughan also considered that he suffered from panic disorder, a diagnosis that must be doubted in the face of Dr Bleasel's evidence.
202 Dr Vaughan thought that by March 1996, after treatment and anti-depressant medication, the plaintiff's symptoms had improved to the extent that he no longer satisfied the criteria for post traumatic stress disorder. The plaintiff saw Dr Canaris, who does not appear to have been informed of the part played by Dr Vaughan or of his opinion. Dr Canaris saw the plaintiff seven times between June and October 1996. The plaintiff told him of flashbacks, visualising the deceased under his wheel and of episodes of severe anxiety and dissociation. Dr Canaris noted a recurrence of nightmares with depressed mood when he saw him again at the end of September 1996. That had occurred in the context of some pressure from Mr Taylor, whose expectations the plaintiff was having trouble in meeting. There was the additional stress of the plaintiff's impending marriage. Dr Canaris came to the view that he was suffering from post traumatic stress disorder.
203 Dr Westmore, psychiatrist, has not treated the plaintiff but has provided reports for the Court and has given evidence. He was supplied with a copy of Dr Walker's report in which she stated that she had been treating the plaintiff for chronic post traumatic stress disorder, depression and panic disorder. Dr Walker considers the post traumatic stress disorder chronic and is not confident about the prognosis for his other conditions. She observes that they continue despite anti-depressant and anti-epileptic medication and the fact that the plaintiff has given up benzodiazapines and alcohol, substances proved by experience to exacerbate his symptoms.
204 Dr Westmore is of the view that the plaintiff's problems were becoming worse and observed what to him appeared to be a progressive decline in his level of functioning, psychologically, socially and occupationally.
205 He believes that the plaintiff suffered an adjustment disorder with depression and anxiety as a result of the collision and that that disorder has in turn adversely affected his marriage, his family relationships, his career and his abuse of alcohol. He thought that although there might be some genetic vulnerability to misuse of drugs and alcohol it was more likely that the plaintiff's depression was linked to his alcohol and drug abuse.
206 Two very extensive reports were written by Dr Smith, psychiatrist, who gave evidence on behalf of the Council. Dr Smith conducted a wide ranging review of the many medical reports and notes and his principal concern appears to have been to gather evidence and draw conclusions as to the lack of candour of the plaintiff, resulting in a tentative conclusion that he was feigning his symptoms, rather than to offer a psychiatric diagnosis based upon assumed facts. I am ultimately unable to place much weight on Dr Smith's opinion because I disagree with his contention that by and large the plaintiff is feigning his symptoms. The reason why he lacks reliability is that he attributes to the collision symptoms that are explicable in other ways.
207 The plaintiff has given many accounts to many medical practitioners and psychologists over many years. It would be surprising if he were universally consistent in his histories. Dr Smith gives the plaintiff no credit for the countless times he has given consistent accounts but draws attention to every occasion upon which he can find that the plaintiff has given an apparently inconsistent account. On some of those Dr Smith is mistaken. For example, he makes much of a report by Dr O'Sullivan to the effect that the plaintiff told him that he started drinking in 1989, that is, before the collision. Dr Smith places some weight on that report, because if true it would bear upon the aetiology of the plaintiff's post-collision symptoms and might show that the plaintiff was putting forward at the hearing a version about his drinking which was false and which he knew or believed favoured his case. The plaintiff was asked about this and denied telling Dr O'Sullivan any such thing. The implication was that Dr O'Sullivan had made a simple misrecording of fact. That is what I think must have happened.
208 Dr Smith is of the view that the documentary evidence suggests that at the most the plaintiff suffered an adjustment reaction to the collision, with social withdrawal, that was resolving within six months of the event. He placed some weight on the fact that Dr Surgeon saw the plaintiff on six occasions between 27 July and 9 December 1990, yet made no mention in his notes of any anxiety symptoms, stress symptoms or panic attacks associated with any of the visits. In fact, although the notes commence in 1985 they make very little reference to shaking. A possible innocent explanation for the absence of any relevant note after May 1990 is that, as Mr Taylor says, the plaintiff was resisting all attempts to have him treated for the effects the collision was having upon him.
209 Dr Roldan, a clinical psychologist, provided a lengthy report and gave evidence also on behalf of the Council. Like Dr Smith, Dr Roldan took the view that the plaintiff was intent on distorting his history so as to play down non-compensable aspects, including pre-accident interpersonal problems at school and at home, a high level of instability within the home environment and family conflict and psychosocial disruption. The plaintiff was also intent on denying any post-accident history of unrelated stressors, such as unresolved issues about his disrupted upbringing, ongoing family conflict and other issues. He thinks that the plaintiff exhibits characteristics consistent with a diagnosis of personality disorder of the borderline type. He notes that it might be argued that that disorder may have arisen as a consequence of allegedly chronic post-traumatic stress disorder, but he doubts whether the plaintiff suffers from that disorder.
210 He thinks that a diagnosis of post traumatic stress disorder does not fully explain the plaintiff's presentation and history and that the plaintiff is likely to have a longstanding and unrelated history of personality disorder, and that that may go a long way towards explaining his life difficulties, including, at least in part, alcohol abuse, episodic depression and suicidal gestures. He is also of the view that there is a longstanding and accident-unrelated history of frontal lobe epilepsy as well as a form of panic attacks.
211 It is not unusual to find a difference of expert opinion, but the dichotomy of view about what I might call the plaintiff's psychological condition and the extent of any contribution to it by the collision is remarkable. I have found none of the expert witnesses in this field acceptable in every respect.
212 I am unable to accept unreservedly the opinion of Dr Walker, though she is the professional who knows the plaintiff best. The plaintiff plainly believes that all his symptoms stem from the collision and that if it had not happened he would have had a normal progression through tertiary education, leading to a satisfying life as a viticulturist and would have become a champion cyclist. Dr Walker has become convinced that the plaintiff's view is correct. She has observed that the plaintiff was "clearly heading for Olympic standards" and that at school his grades were improving and that he had a secure concept of his future. This notwithstanding that the plaintiff told Dr Vaughan that he was struggling at school. She observed that "somewhat incredibly, Roy himself was not taken to hospital" after the collision. These statements and implications do not, I think, necessarily stand up to examination, and the impression that I have received having read Dr Walker's reports and having seen and heard her examined and cross-examined at length is that she has to some degree made herself an advocate for the plaintiff.
213 I think that at the time of the collision the plaintiff was probably suffering from a personality disorder of the borderline type. I accept the evidence of Dr Roldan that such disorder is normally associated with inherent factors such as a dysfunctional early psychosocial environment affecting emotional and personality development and that it is known to become salient in late adolescence or early adulthood. Persons with personality disorder are known to have a lifelong pattern of emotional instability, detrimentally affecting relationships and general functioning. From his early years the plaintiff has exhibited hyperactivity and has been exposed to distressing behaviour on the part of his mother. He has also been exposed to substantial psychosocial tension and I think that the description of his family as dysfunctional is not inapt. His personality disorder may also have inherited elements, and a description of his mother's behaviour suggests that there may be a genetic origin. It is possible also that the plaintiff's frontal lobe epilepsy has played a role in the emergence of personality disorder.
214 I am satisfied that the plaintiff has suffered from post traumatic stress disorder and that its symptoms may have aggravated the plaintiff's personality disorder.
215 I also think that at the time of the collision the plaintiff suffered a depressive illness which had a biological component. I think that the effect upon the plaintiff of the collision, particular the post traumatic disorder, has been to make his depression worse.
216 I think that he is still suffering from post traumatic stress disorder and depression. The post traumatic stress disorder is due to the collision. The duration and intensity of the plaintiff's depression may also be said, though with less confidence, to have resulted from the collision.
217 The stressors which have affected the plaintiff since the collision have likewise had a significant effect upon the psychological health of the plaintiff. Most of them were unrelated to the collision and, I think, not made worse in their effect by the prior fact of the collision. I am thinking particularly about the suicide attempts, especially the recent one which followed the plaintiff's wife's leaving him, and a return to excessive consumption of alcohol.
218 If the collision had not occurred, the plaintiff would now be in better psychological health than he is, but he would not have been in good psychological health. By 1990 his psychological condition predisposed him to serious consequences from traumata which might not affect a psychologically healthy person. I think that his psychological health would probably have deteriorated if he had not been involved in the collision.
219 The prognosis for his post traumatic stress disorder is poor and I think that he will probably suffer from its symptoms for many years into the future. I think that the symptoms will not always be as bad as they are at present, however, provided he can follow a rehabilitation programme and get back into the work force and begin to lead a life which he himself regards as worthwhile.
220 The plaintiff's achievement at school until Year 12 was average. At eight and a half years old his IQ was found to be in the high average to above average range, which has been said without challenge to indicate 110. In the school certificate he obtained grade 3 in English - the middle 40 per cent of performers from the thirtieth to the seventieth percentile - and grade A in intermediate mathematics. According to Associate Professor Athanasou those results indicate a pupil of average achievement.
221 In a Year 12 report of 27 April 1990, just before the collision, the summary comment was -
Roy is an affable young man. If he wishes to attain which reflect his ability, he will need to approach school and study more seriously than he is at present …
222 Following the collision the plaintiff returned to school and received this report in September -
Roy is a congenial young man who has made satisfactory progress this year. If he continues to apply himself to his studies before the HSC he should attain results which reflect his potential.
223 The plaintiff's results in April and September 1990 were as follows -
Subject April September