J v D

LEEMING JA: I agree with White JA that the appeal should be dismissed with costs. I agree with his Honour’s reasons, and add the following by way of further explanation.

Following a five day hearing on damages, liability having been admitted, the primary judge delivered judgment in the sum of $43,983.70, comprising past out of pocket expenses of $3,547.70, future out of pocket expenses of $8,000 and past loss of earning capacity of $32,436.00. The grounds in the amended notice of appeal that were pressed (ground 1 was general, and grounds 2, 3 and 4 were abandoned) were focussed upon language used throughout the judgment that the plaintiff’s psychological disorder was “accelerated” by the motor vehicle accident which occurred in January 2012. As White JA points out, when the judgment is read as a whole, what his Honour must have meant was that, sadly, by February 2016, the appellant would, even in the absence of a motor vehicle accident, have suffered a psychotic disorder which was destructive of her earning capacity. Thus no damages for future economic loss (or for any past economic loss after February 2016) were permitted, on the basis that the inevitable psychotic condition would have occurred after February 2016 in any event. It is true that earlier in the reasons there are apparently unqualified findings favourable to the plaintiff based on causation, which extended to statements that the schizo-affective disorder were attributable to the motor vehicle accident, notably at [209]-[211]. But those passages must be read with the latter portions of the judgment, and the orders actually made, and when that is done the sense of the judgment is clear, as White JA explains.

Those conclusions were well founded in the evidence. None of the defendant’s experts was required to attend for cross-examination, and the principal witness for the plaintiff, Dr Allnutt, accepted that the psychotic condition was going to occur in any event. Once that is observed, all that remains is a complaint about the absence of reasons for the identification of 4 years as the period of acceleration. But this is a case where the primary judge was entitled to do the best he could on the basis of conflicting expert evidence, bearing in mind that the issue for resolution was defendant’s contentions that all of the mental injury was either unrelated to the accident or had developed earlier, by early February 2014.

WHITE JA: The appellant (J) is a young woman now aged 29. It is common ground that she suffers from an atypical psychotic disorder such that, according to the primary judge, her prospects of employment in the short and medium term are “very clouded” (J [1]).

Because of J’s mental illness a financial manager has been appointed to manage her estate. Accordingly in these reasons I will anonymise the parties’ names.

The question at trial was whether J’s psychiatric condition was caused by the negligence of the respondent (D) in driving her motor vehicle so as to cause an accident in which J suffered physical injury. That accident occurred on 23 January 2012. The circumstances of the accident are immaterial. D, through her insurer, admitted liability. J commenced proceedings in the District Court on 7 May 2014. The particulars of her injury filed with the statement of claim included injury to her spine, to both knees, and also Generalised Anxiety Disorder resulting in continuing disabilities of anxiety, panic attacks, shortness of breath, agoraphobia, social phobia, depressive symptoms including sleep disturbance, reduced energy, tiredness, reduced motivation, variable appetite and difficulties with concentration and loss of enjoyment of social life and interaction with friends.

D admitted that she owed a duty of care to J to take care not to cause her mental harm. D did not contend that she ought not to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care in the driving of her motor vehicle were not taken (Civil Liability Act 2002 (NSW) s 3B(2)(e), s 32(1)).

There were indications before the motor vehicle accident of issues concerning J’s mental health. In October 2010 J was referred by a doctor from the Dee Why Family Medical Centre to a psychiatrist, Dr Richard Barnard. J was then 18 years of age, in Year 12, and embarking on her HSC. Dr Barnard reported to J’s general practitioner that:

A psychiatrist, Dr Stephen Allnutt, provided three medico-legal reports after the motor vehicle accident in relation to J’s mental state. The first was provided on 1 July 2013. The particulars of J’s psychiatric injury and continuing disabilities referred to above were substantially based upon Dr Allnutt’s first report of 1 July 2013. Dr Allnutt provided further reports on 16 March 2015 and 22 March 2019. His views changed as J’s mental health deteriorated. It does not appear that the particulars of J’s injuries were updated accordingly, but no issue is taken about that.

In his report of 1 July 2013, Dr Allnutt opined that J’s

After the accident, J attended hospital and was discharged on the same day. On 24 January 2012 she attended the Dee Why Family Medical Centre (J [46]). She consulted a general practitioner who prescribed painkillers and physiotherapy and referred her to an orthopaedic surgeon. A psychologist, Dr Zoran Protulipac, stated in his report of 5 May 2015 that that treatment failed to relieve her of pain and the pain caused her to develop psychological problems, namely fear and apprehensiveness towards driving, recurrent flashbacks of the accident, panic or anxiety attacks, hypervigilance, insomnia, stress, anxiety and depression. J reported that her sleep pattern was disturbed by frequent nightmares. Her general practitioner referred her to a psychologist who provided her with initial treatment. That was of no avail and she was subsequently referred to Dr Protulipac who initially assessed her on 22 January 2013. He concluded that J did not fulfil the criteria for diagnosis of post-traumatic stress disorder but diagnosed her with adjustment disorder with mixed depression and anxiety. She received 21 sessions of therapy and her treatment was terminated on 8 August 2013. Her condition had improved to some extent.

At the time of the accident J was a university student with part-time employment. After the accident she continued to study at university. The primary judge found that the accident impeded her studies and had a knock-on effect on her capacity to engage in casual employment ([261]). Dr Protulipac advised in his report of 5 May 2015 that, following the accident, J reported elevation of anxiety and depressed mood on days when her pain was stronger and minor relief from psychological symptoms when her pain was more tolerable. He said that some of the very prominent features of trauma continued following treatment which he attributed to her elevated anxiety following the accident.

J was admitted to Mona Vale Hospital on 14 July 2013 and was there diagnosed with an anxiety disorder. On 26 February 2014 she was admitted to Royal North Shore Hospital where she was brought by ambulance. The admission note stated that she was “Found in city hyperventilating feeling as though going to die. Appears anxious ?delirious, states had not slept for 4/7 – unable to say why – rambling speech, feels anxious about going to sleep, denies drugs”. On examination by a psychiatrist it was noted that she had tangential answers to questions, depersonalisation, derealisation, and disorganised thought processing. It was concluded that she needed hospitalisation to stabilise her mental state and protect her reputation. She was transferred as an involuntary patient to a mental health facility at Macquarie Hospital. The transfer in fact seems to have been made to the Manly Hospital which recorded her admission on 27 February 2014 and discharge on the same day. The hospital records reported no evidence of an acute psychosis or major disorder of mood but concern was expressed that this might be a prodromal phase of a psychotic illness with possible differential diagnoses of BPAD (bipolar affective disorder) and schizoaffective disorders.

Dr Allnutt provided a further report on 16 March 2015. He advised that, on further review of J, he considered she probably had chronic post traumatic stress disorder with associated panic attacks, agoraphobia and social phobia with a differential diagnosis of generalised anxiety disorder. Overall she had an anxiety disorder. He said:

J had further attendances at the mental health unit of the Manly Hospital on 10 and 11 February 2016 and then for an extended period between 12 February and 29 February 2016. She had an initial attendance at the Northern Beaches Community Health Centre on 2 March 2016.

The report of her admission to and discharge from Manly Hospital on 10 February 2016 noted that J had been known to the mental health team for anxiety and depression since her teenage years. The admission seems to have been precipitated by relationship conflicts with two men. These events precipitated four days of crying, screaming and yelling such that the neighbours called the police who attended and recommended that she be transported to hospital. It was noted that her hysterical behaviour followed the relationship difficulties and sexual issues with an ex boyfriend and a new friend.

There was a further lengthy stay at the Manly Hospital mental health facility between 24 March and 15 April 2016. The mental health discharge transfer summary for that admission was summarised by a psychiatrist, Dr Christopher Cocks, who provided a report tendered by D, as follows:

Dr Cocks summarised her further treatment and admissions in 2016 as follows:

Dr Grant Sara, a psychiatrist with the Beaches Early Intervention Centre, provided a report on 8 February 2017 in which he stated:

J had further attendances at Manly Hospital and the Northern Beaches Hospital in 2017 and 2019. In his report of 15 February 2019 Dr Cocks stated:

Dr Allnutt provided his third report on 22 March 2019. He said:

Both Dr Cocks and Dr Allnutt saw J but when Dr Allnutt asked about driving and J said that she felt tired when driving and would get panic attacks, at that stage of the interview, she said she was getting tired and wanted a break and he stopped the interview with her and continued with her parents.

In a later report of 17 July 2019, Dr Cocks considered additional material, including documentation from the Northern Beaches Hospital file as well as Dr Allnutt’s opinion of 22 March 2019. Dr Cocks stated:

Dr Cocks was not required for cross-examination. Dr Allnutt was.

In cross-examination, Dr Allnutt said that he had no difficulty with a diagnosis of schizoaffective disorder but said that there was evidence of ongoing symptoms of post traumatic stress relating back to the motor vehicle injury. That had probably now been overborne by her psychotic disorder but elements of post-traumatic stress had been evident throughout. He accepted that it would be correct to say that “…at least from 2016 onwards, the schizo-affective disorder is the predominant cause for the decline in function that has been seen since”.

He agreed that the schizo-affective disorder was highly likely, if not certain, to have occurred in any event.

He gave the following evidence:

He also said that

The primary judge found that J became fully incapacitated from employment from February 2016 ([261]). He also found that:

His Honour found that J’s earning capacity was destroyed for reasons unrelated to the motor accident by the end of February 2016 ([266]). He assessed damages on the basis that D was responsible for J’s post traumatic stress disorder caused by the accident that adversely affected her earning capacity and contributed to her incurring medical expenses up to, but not beyond, 2016.

D did not file a cross-appeal against that assessment.

The primary judge found, consistently with the opinion of Dr Allnutt, that after the accident, J suffered symptoms of post traumatic stress disorder. Properly read, his Honour’s reasons were that those symptoms which were referable to the accident continued up to 2016 until they were overborne by the psychosis that was not referable to the accident. That was the basis upon which his Honour’s orders were made. However, in describing the orders, the judge said that “…the defendant’s negligence only accelerated (to February 2016) a psychotic condition that would have been sustained anyway, even without the defendant’s negligence” (at [268]).

Earlier in his reasons, the judge said:

The judge’s description of the psychotic condition as having been “accelerated” by the defendant’s negligence was an unfortunate choice of words.

J’s grounds of appeal against the assessment of quantum of damages were:

The reference to “acceleration” of the psychotic condition suggests, as the grounds of appeal assert, that the judge found that, but for the motor vehicle accident, J’s psychotic condition which manifested itself in 2016, would rather have been manifested in 2020. There was no evidence to support such a conclusion. Hence J submitted that the evidence left open the possibility that it could have been many years before the psychotic disorder would have developed in the absence of the motor vehicle accident.

But reading the reasons of the primary judge as a whole against the evidence of Dr Cocks and Dr Allnutt, including his Honour’s findings referred to above, it is clear that by “acceleration” the primary judge did not mean that J’s psychotic condition had been brought forward by four years from when it would otherwise have occurred. Rather he meant that the symptoms of post traumatic stress disorder only persisted for four years after the accident up to 2016, after which she would have been incapacitated by reason of her underlying psychotic condition. His Honour found (at [243]):

There was no error in his Honour’s reaching that conclusion. It is consistent with the opinion of Dr Cocks, given his Honour’s unchallenged finding that J suffered post-traumatic stress disorder as a result of the accident (although Dr Cocks disputed this and his opinion was unchallenged). It is also consistent with the opinion of Dr Allnutt.

For these reasons I would dismiss the appeal with costs.

BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by White JA, with which I agree.

The basis of the primary judge’s finding is clear, if imperfectly expressed. It is that, by February 2016, J would have been disabled by the psychosis from which she suffered for other causes, regardless of the motor vehicle accident the subject of her claim. Unhappily, prior to the motor vehicle accident, J was already predisposed to schizo-affective disorder, which would become disabling. The motor vehicle accident did not cause her schizo-affective disorder, but at the time of the accident that disorder was not yet disabling. The overlay of post-traumatic stress disorder following the accident had the consequence that during the period 2012 to 2016 she was more disabled than would otherwise have been the case, during that period. But by 2016, she would have been disabled regardless; any remaining effects of her PTSD were “overborne” by those of her schizo-affective disorder.

This was not a finding that the psychosis was accelerated from 2020 to 2016. The four years to which his Honour referred is the four-year period 2012 to 2016. Submissions complaining of an inadequacy of reasons and failure to have regard to the period 2016 to 2020 proceeded on the misconceived basis that his Honour was referring to the period 20126 to 2020, and are untenable.

I agree with the orders proposed by White JA.