Ramsay v De Wet[2022] QDC 287

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   At about 1.30 am on 18 February 2012, the applicant was a passenger in a car driven by his then girlfriend.  She lost control when it left the road and entered a low-flowing creek.  The vehicle was written off.  The driver suffered significant head injuries that would have been terrible to witness.  The applicant did not suffer any physical injuries.  He was then 19 years old.  His girlfriend was 17 years old.
2. [2]
   The applicant claims to have a right of action arising from the incident.  This application is for an order that the period of limitation for the claim - filed on 10 August 2021 - be extended.
3. [3]
   The question is whether a material fact of a decisive character was not within the applicant’s means of knowledge until after 10 August 2020 (as an extension may be ordered up to one year after the date the fact was within the applicant’s means of knowledge).  It is conceded by the respondent that there is evidence to establish the right of action apart from a defence founded on the expiration of the limitation period.^[1]
4. [4]
   Relevantly to this application, material facts include the nature and extent of the personal injury caused by the negligence of the driver.^[2] 
5. [5]
   A material fact may be decisive only if a reasonable person knowing it and having taken appropriate advice would regard an action to have reasonable prospects of success, resulting in an award of damages sufficient to justify bringing the action, and he ought in his own interests bring the action.^[3]
6. [6]
   The applicant must prove that he did not know the fact at the relevant time and that, as far as he could discover the fact, he had taken all reasonable steps to find it out before that time.^[4]
7. [7]
   The two facts the plaintiff argues were material and outside his knowledge were:

1. The accident caused him to suffer from post-traumatic stress disorder; and
2. He suffered a permanent impairment and his working capacity had been significantly impaired.

Evidence

8. [8]
   The applicant swore two affidavits and gave evidence at the hearing.
9. [9]
   Before the incident, the applicant had a history of alcohol use, including binge drinking, and drug use since his final year at school.  In 2010 he commenced a degree in psychology but deferred after 6 months.  He worked full-time as a waiter for about 12 months before the accident in February 2012.  He says he reduced his alcohol intake and was drug free for about 6 months before the incident, after consulting General Practitioner, Dr Andrew Smith and receiving treatment from psychologist, Dr Brad Johnson.
10. [10]
    Dr Smith saw the applicant on 28 February 2012.  Dr Smith’s notes include:

Home Visit 27.2.12

……………

Recently involved in car accident.  William was a passenger and was not hurt. Girlfriend received severe head injuries.  William had to attend to her while waiting for ambulance. 

Girlfriend remains critical in ICU.  Subsequent problems with “flash backs” to accident and helping girlfriend. c/w PTSD.  Grief reaction (girlfriend’s prognosis is poor). Adjustment disorder with depression. Needs trauma counselling.  GPMHCP Review.  Referred to psychologist.

11. [11]
    Under cross-examination, the applicant did not remember a visit from Dr Smith.  He said he did not have much memory of the weeks and months after the incident.  Asked whether he experienced flashbacks, he answered: I will say no.
12. [12]
    The next day, the applicant saw psychiatrist, Dr Anna Cooksley.  She noted:

19 year old male with ASD (interpreted as acute stress disorder).   Following motor vehicle accident that left [his girlfriend] seriously injured.  Emotionally intelligent, using supports effectively.  Nil evidence pathological guilt or sense of helplessness to suggest high risk for chronic PTSD.

13. [13]
    Under cross examination, the applicant did not remember whether Dr Cooksley told him he had an acute stress disorder.
14. [14]
    Dr Cooksley’s records include an attendance on 22 March 2012, the notes include:

Doing really well.

..

Relatively optimistic re future.

15. [15]
    On 23 July 2012, Dr Cooksley wrote to the University of Queensland:

William has been a patient of mine since he was involved in a motor vehicle accident in February 2012 in which his girlfriend was critically injured.  He has struggled with post traumatic stress symptoms and the marked stress of supporting his girlfriend who remains severely disabled.

16. [16]
    The applicant deposes that Dr Cooksley listened to his history but did not tell him he suffered from post-traumatic stress disorder.  At the hearing, the applicant said he did not recall the letter.  He accepted he suffered marked stress from supporting his girlfriend.  Asked whether it was true that he suffered post-traumatic stress symptoms, he replied: Not to my knowledge.
17. [17]
    The applicant deposes to commencing drinking about 6 months after the accident, which progressively increased, to alleviate feelings of depression and anxiety arising from the incident, and guilt and anger over his girlfriend’s circumstances.
18. [18]
    In 2014, the applicant started a new university course.  He deposes to experiencing changing moods and consistent drinking through 2015 to 2017.  He also studied, held part-time employment, travelled to the USA for study – but continued drinking heavily.
19. [19]
    His continued serious drinking upon return to Australia eventually led the applicant to consult Dr Smith in November 2017.  Dr Smith noted:

...William had significant PTSD symptoms after [the accident] that have never been properly addressed.  Currently he gets significant anxiety and has been self medicating with alcohol.  Binge drinking.  Some suicidal thoughts when drinking.  ….. No alcohol for 2/52 and feels better.  No cravings.  No problems staying abstinent at the moment. Currently finishing his Uni exams.

20. [20]
    The applicant deposes that his purpose in consulting Dr Smith was to treat the alcohol use.  Dr Smith referred him to Dr Johnson.
21. [21]
    On 6 November 2017, Dr Smith wrote “To whom it may concern” that the applicant “has suffered from Post Traumatic Stress Disorder for most of 2017 which has significantly affected his ability to study.”
22. [22]
    Under cross examination, the applicant did not accept he had significant PTSD symptoms as at November 2017 but confirmed that he had been self-medicating with alcohol: “That’s why I went to see Andrew Smith.”
23. [23]
    Consultant Psychiatrist Dr Ghazala Watt, in her report dated 8 October 2021, refers to a letter from Dr Johnson dated 21 November 2017 which included:

Because he felt fine, he would become a little withdrawn. William told me that others were concerned, that his difficulties were arising from his involvement in a serious motor vehicle five years. William denied any clear symptoms of PTSD. He denied experiencing any flashbacks or intrusive memories. He feels a little anxious at times. He said he feels some guilt that he saved his girlfriend’s life. William was quite vague as to what he was hoping to achieve from seeing me. I could elicit no clear indication of PTSD at this time and I do not feel it would be appropriate to begin a treatment program for this given his apparent lack of symptoms.

24. [24]
    On 6 December 2018 Dr Louise Wilson referred the applicant to psychiatrist, Dr Milad.  The referral was for ‘opinion and management’ of the applicant’s ‘drinking problem over the last few years’.  The referral letter informs of the applicant’s desire to take part in the Overcoming Addiction programme at the Cooinda Mental Health Service.
25. [25]
    Dr Milad referred the applicant to the program.  The applicant deposes that he attended one day a week for three months; that his referral to Dr Milad was for the treatment of his alcohol intake and that Dr Milad did not tell him he suffered from PTSD.
26. [26]
    Dr Milad wrote to Dr Wilson on 18 December 2018.  As the applicant was cross examined in some detail on the contents of the letter, I set out a significant part of it.

Thank you for referring William who was seen on the 13/12/2018 accompanied by his father and mother.  He is a twenty-six year of age male who has been suffering from significant alcohol dependence syndrome.  He has been experiencing significant alcohol binge disorder in the context of alcohol dependence since he was twenty years of age.

At age twenty he was involved in a motor vehicle accident with his previous girlfriend who suffered significant traumatic brain injury as a result of the accident.  He recalls having symptoms of PTSD at the time as a result of the accident.  He waited forty-five minutes holding his girlfriend’s brain, which had been split up and was coming out until the ambulance arrived.  That night he was also drinking excessively and may have also altered his memory in relation to the trauma and as a result the motor vehicle accident may not have affected him, as it should.

Since then he has been drinking excessively to deal with the after stress of that accident, the injury suffered by his girlfriend who has been left with severe acquired brain damage.  The relationship was terminated, as he was not able to deal with the trauma of seeing his girlfriend suffering from severe brain injury.

He became involved in excessive alcohol drinking where he can drink up to a bottle of spirits and one or two bottles of wine per night. He drinks to get intoxicated.  He drinks very quickly, aimlessly, achieving alcohol intoxication and paralysis rather than gradual sipping and enjoyment of alcohol.  As a result, his life has not progressed and cannot thrive in education or work or have a relationship.  There is marked arrest of progression in his development.  His family are worried about him and find it difficult to help him.

William himself has a good insight and has been trying to stop drinking on his own.  The longest he has ever achieved would be three to four weeks at a time.  He tends to have significant binges, which would be followed by abstinence ranging from a few days to weeks.  He stated that the last time he drank was the weekend before.  He is keen to come off alcohol and keen to stay sober and keen to deal with his alcoholism.

27. [27]
    The applicant said he did not tell Dr Milad he recalled “having symptoms of PTSD at the time as a result of the accident”.  His evidence was that at the time he did not understand or have a concept of PTSD.  The applicant did not accept he told Dr Milad he had “been drinking excessively to deal with the after stress of that accident” although he allowed that the doctor may have drawn the inference.  Indeed, the applicant deposes in his second affidavit, affirmed 17 February 2022: I was drinking in order to relieve stress caused from the motor vehicle collision and using it as a coping mechanism.
28. [28]
    The applicant denied he told Dr Milad his life had not progressed and disagreed with the assertion, because he had graduated and had had relationships.  He also denied that he told Dr Milad, “There is a marked arrest of progression in his development” but allowed that the doctor might have reached that conclusion.
29. [29]
    The applicant deposes that after completing the Overcoming Addiction program he was sober for 8 months then lapsed monthly.  In 2020, he consulted Dr Wilson again for help in reducing his drinking.  She referred him to psychologist, Mr Beckley.  After six sessions, Mr Beckley wrote to Dr Wilson: The purpose of treatment was to provide strategies for PTSD and a substance abuse disorder.

William has engaged well in treatment. The main factor contributing to William’s PTSD symptoms appears to be a car accident he had around seven years ago. William reported he has had difficulty processing the accident and events after the fact which has contributed to bouts of emotional dysregulation. William’s main coping strategy has been to use alcohol. William has responded well to a combination of cognitive behaviour therapy and acceptance and commitment therapy. Specific strategies have included mindfulness of [h]is emotional state and grounding exercises. Cognitive restructuring has also been helpful to target core beliefs William has developed about himself regarding the accident.

30. [30]
    Under cross examination, the applicant did not remember Mr Beckley using the terms ‘post-traumatic stress disorder” or ‘PTSD’.  He agreed he told Mr Beckley he had difficulty processing the accident and events after it.  As to his use of alcohol, the applicant said:  I didn’t know I was using alcohol for the accident, but it was a coping strategy to manage life.
31. [31]
    A letter from Mr Beckley dated 21 April 2021 reveals the applicant attended 9 sessions with him from 27 March 2020 to 5 June 2020.
32. [32]
    Mr Beckley was called at the hearing.  He did not recall whether he used the term ‘PTSD’ when speaking to the applicant.  He said he did not diagnose PTSD.  He explained that the PTSD symptoms were: Mainly significant bouts of anxiety and .. emotional dysregulation by alcohol use … Negative thoughts about himself ….his perception of the world. Anger.

The applicant’s university studies also caused stress.

33. [33]
    In September 2020, after drinking heavily at his parents’ home, the applicant went to the Story Bridge intending to suicide by jumping.  Another person interceded and encouraged him to go to the Gold Coast and obtain drugs.  The applicant says the other person robbed him on the way.  The applicant was taken to the Robina Emergency room and then transferred to the Gold Coast University Hospital.  At this hospital the applicant was told he had post-traumatic stress disorder.  This, he deposes, was the first time he had been so advised and at this time he linked the diagnosis to the February 2012 incident.
34. [34]
    The applicant was discharged to the Buderim Private Hospital.  In a letter to Dr Milad, Dr Nushaty Faizal wrote:

Background:

-Diagnosed PTSD few years after MVA

Was involved in a serious motor vehicle accident some years ago where his ex-girlfriend at the time sustained serious head injuries enough to cause significant cognitive impairment.  He was diagnosed with PTSD at Buderim.  Saw him for three months after the accident for his PTSD symptoms.  Treated with Pristiq and psychological intervention (CBT and ACT).  William stayed involved in his ex-girlfriend’s care for the last two years but has had to back away due to his lowering of mood and unpredictable behaviour eg not turning up to feed her on time.  His current girlfriend is a psychologist and has been urging him to get help over the last few months.  He has been seeing a psychologist, J. Beckly on the Sunshine Coast.

- Started on Desvenlafaxine and was on 100 mg in community.

- Studying and working at the same time.

- Lives with girlfriend and some flatmates.

- Parents live closely to him and very supportive.

History of presenting illness:

William self-presented to Robina Hospital on 18/09/20 to seek help after his recent attempt of jumping off bridge on the same day.  He was on the bridge when a bystander saw him and interrupted his plan and he was talked into going to Gold Coast with him, however that individual ended up robbing him of his cash and upon arrival to GC William came straight to the ED.  He admitted to being intoxicated during event and is remorseful of his action.  He had no plan prior to this event and stated that it was possibly triggered by his conversation with his brother earlier.  He admitted to chronic fleeting suicidal ideation ever since the MVA occurred with nil attempt in the past.

He describes periods of low mood and PTSD symptoms including flashbacks, nightmares and avoidance past 8 years.  He noted to experience further deterioration in mood past few weeks.  His coping mechanism has always been 3-4 weekly alcohol binging.  Admitted to increasing drinking frequency past few weeks and he is still active in AA.

On review, William shows good insight and understanding of his illness.  He is happy to seek further help in psychological intervention and to manage his alcohol dependency.  He is keen to get further treatment in Buderim under your care.

35. [35]
    At the hearing, it was put to the applicant that he told the doctors on 18 September 2020 that he had been diagnosed with PTSD a few years after the accident.  The applicant replied, “I don’t believe so” and went on to deny he had told the doctors he was diagnosed at Buderim because he had never been given such diagnosis.
36. [36]
    In late 2020, the applicant was treated for PTSD over a 12 week course from 1 December 2020 to 4 March 2021, 
37. [37]
    He contacted a lawyer in December 2020.  The solicitor’s affidavit reveals the firm lodged a Notice of Accident Claim form on 22 December 2020.  It records, under the heading Excuse for Delay:

The Claimant did not appreciate the impact of his injuries from the accident upon him until he was diagnosed with PTSD in June 2020.  This diagnosis is a material fact of a decisive character as the claimant was not previously aware that he had ongoing injuries from the accident.

38. [38]
    After some correspondence, the applicant filed the originating application 22 June 2021.  The application was adjourned, by agreement, upon the respondent’s solicitor requesting, among other things, that the applicant be examined by an independent doctor.  Thus, Dr Watt examined the applicant on 23 September 2021.
39. [39]
    In her report dated 8 October 2021, Dr Watt confirmed the diagnosis of PTSD arising from the incident:

“This gentleman has a prolonged period of untreated posttraumatic stress disorder symptomatology which has resulted in comorbid alcohol dependence … [which] … has had significant impact on his functioning …”

40. [40]
    The report includes the applicant’s description of the horrific experience of the crash.  Afterwards, when he left the hospital, he was ‘a changed person’.  To Dr Watt he explained this meant he was aware his life was not going to be the same.
41. [41]
    Under cross examination at the hearing, the applicant accepted he was suggesting to Dr Watt that his life would change in a bad way – “Yeah. But I didn’t know how.”
42. [42]
    The applicant confirmed his deposition that he was drinking “in order to relieve stress caused from the motor vehicle collision and using it as a coping mechanism”.  He accepted propositions that drinking has been a serious problem for much of the past 9 and a half years; it has interfered with his studies and relationships and has cost him a lot of money.  While accepting this, the applicant said he kept regular employment and study and had progressed through his life.
43. [43]
    Dr Watt’s assessment of the applicant in the categories ‘Self-Care and Personal Hygiene’ and ‘Adaptation/Employability’ was 3.  The applicant had suffered a total whole person impairment of 7%.
44. [44]
    Dr Watt provided a supplementary report on 16 February 2022.  Dr Watt opined that the applicant’s use of alcohol as a self-medicant was likely to have led to “masking” of his PTSD symptoms which affected his judgment in relation to treatment required and the long-term impact of his symptoms on his functioning.
45. [45]
    Dr Watt considered the applicant’s prognosis to be-

“significantly guarded due to prolonged exposure to the traumatic event where he not only has witnessed the accident but had stayed with his partner for a period of time prior to this partner getting medical attention. He has also attended to his partner, Charmaine, at the time in the hospital for a further two years. In addition, his symptoms seem to have developed gradually, there is prolonged period of untreated illness and comorbid Alcohol Abuse Disorder/ Dependence. All these factors are highly likely to result in poor prognosis.

In other words, it is very likely that Mr Ramsay will continue to experience Posttraumatic Stress Disorder for a long period of time.”

46. [46]
    Dr Watt concluded: The whole person permanent impairment set out in the first report should be considered as “permanent impairment final score.”

Conclusions

47. [47]
    Taking into account the evidence and the submissions of the parties and authorities referred to, I am satisfied the applicant described symptoms of PTSD soon after the incident and continued to do so periodically since.  That the term is peppered throughout the letters and reports passing among practitioners or written to the university does not lead to the conclusion that the applicant was aware he suffered from a condition of that name.  On the other hand, as McGill SC DCJ wrote in Hopkins v State of Queensland [2004] QDC 21,

“what matters is whether the applicant is aware of [his] symptoms, not whether [he] is aware of the particular psychiatric condition that they represent, and whether [he] connects those symptoms with the relevant incident in the past, or whether that connection is only ascertained with the benefit of medical expert advice.”

48. [48]
    The applicant’s claim that he was not aware he suffered PTSD until told so at the Gold Coast hospital in September 2020 bears scrutiny and is reasonable.  I accept it.  It is reasonable that he would not remember the detail of consultations in the aftermath of the terrible experience of February 2012.  Compelling though Dr Watt’s assessment is of long-untreated PTSD caused by the incident, there were significant periods of capacity, where the applicant studied, worked and conducted relationships.  In particular, it is not difficult to accept that he was not aware of the nature and extent of his injury – and that all of his symptoms were caused by the incident - given the history of alcohol abuse and mental ill-health before the incident.  Such finding is not inconsistent with the applicant’s opinion expressed in February 2022, referred to by the respondent, that he drank excessively to relieve stress caused by the incident and used it as a coping mechanism. 
49. [49]
    On balance - though it is finely balanced - accepting the applicant’s evidence that no clinician told him of the link between the condition and the incident, I conclude that he took such steps as could reasonably be expected to treat his symptoms and thereby to find out the material fact.
50. [50]
    The assessment of the injury by Dr Watt was a second decisive material fact, available to the applicant only in October 2021, after the Claim had been filed.  Upon receipt of Dr Watt’s assessment the applicant may be said to have had a cause of action with reasonable prospects of success, which could result in an award of damages sufficient to justify bringing the action, and that he ought in his own interests to bring it.
51. [51]
    This is not, in my opinion, a case where:

“a reasonable man, appropriately advised, would have brought the action on the facts already in his possession and the newly discovered facts merely go to an enlargement of his prospective damages beyond a level which, without the newly discovered facts, would be sufficient to justify the brining of the action.”^[5]

52. [52]
    The material facts relied on go to the nature and extent of the personal injury caused by the negligence of the driver.  In the circumstances, the applicant should be granted the extension of time sought.
53. [53]
    Subject to any further written submission, limited to two pages, as to the form of order and the costs of the application, the orders will be:

1. The period of limitation for filing the claim is extended to 10 August 2021;
2. The applicant’s costs of the application will be costs in the proceeding.