Youssef v Eckersley[2024] QSC 35

SUPREME COURT OF QUEENSLAND

Table of Contents

The claim3

The trial4

The plaintiff’s circumstances5

Academic qualifications and relevant employment history12

Spinal injury and facial injuries16

Medical records17

Previous x-rays17

The plaintiff’s account of his symptoms18

Dr Theile – plastic surgeon (called by the plaintiff)20

Dr Labrom – orthopaedic surgeon (called by the plaintiff)20

Dr Todman – neurologist (called by the plaintiff)24

Dr Dickinson – orthopaedic surgeon (called by the second defendant)26

Head injury and mental health disorder29

Dr Todman (called by the plaintiff)29

Professor Whiteford – psychiatrist (called by the plaintiff)30

Dr Lovell – forensic psychiatrist (called by the second defendant)33

Causation38

The assessment of damages45

General damages45

Past economic loss49

Interest on past economic loss58

Past loss of superannuation59

Future economic loss59

Past special damages61

Future special damages61

The claim

1. [1]
   On 22 December 2016, Graham Raymond Eckersley (the first defendant) pulled out of a shopping centre carpark and drove in front of Dr Chadi Youssef (the plaintiff) who was riding his motorcycle along Hamilton Road, McDowall. The plaintiff was knocked off his motorcycle and he was subsequently transported by ambulance to the Royal Brisbane and Women’s Hospital.
2. [2]
   At the hospital, it was noted that the plaintiff had a Glasgow Coma Scale of 15 / 15. No shortness of breath, nor loss of consciousness, was reported. The plaintiff was diagnosed with fractured nasal bones, being an open comminuted nasal bone fracture, together with a nasal breach and chin laceration. His injuries were sutured which were removed approximately five days after the accident.
3. [3]
   Approximately six months after the accident, a plastic surgeon performed a scar revision on the plaintiff’s nasal bridge.
4. [4]
   The plaintiff’s legal representatives filed a claim in this court on 11 October 2019, claiming damages in the sum of $1,056,459.55 against the first defendant and his insurer, Allianz Australia Insurance Limited (the second defendant).^[1]
5. [5]
   The second defendant accepts liability for the accident. The issue in this trial was the assessment of the plaintiff’s damages.  
6. [6]
   In the claim, the plaintiff alleges that as a result of the accident, he suffered the following injuries:

   1. a head injury including post-concussive syndrome;
   2. a cervical spine injury; and
   3. facial injuries.
7. [7]
   The plaintiff’s claim states that in consequence of the injuries and the impediment which they have caused to his working, social and recreational activities, the plaintiff has suffered a psychiatric condition diagnosed as depressive disorder (the psychiatric sequalae).
8. [8]
   The second defendant accepts that the plaintiff suffered a cervical spine injury and the facial injuries. However, the second defendant submits that the evidence does not support a finding that the plaintiff suffered a post-concussive syndrome which Dr Lovell, psychiatrist, explained as:

“A post-concussional syndrome is a broadly-based syndrome of headaches, dizziness, concentration difficulties, some difficulties with focus and emotional ability, sometimes associated with fatigue and some memory difficulties, some noise sensitivity, and usually, most of these symptoms will resolve within a month. And the post-concussional syndrome diagnosis is made when there is no clear evidence of serious head injury which is assessed by loss of consciousness, the Glasgow Coma Scale which in this case was normal, 15, the absence of any neurological evidence on MRI scan. Basically, people, if they get a blow to the head and they’re not knocked out and there’s no significant brain injury, describe some post-concussive symptoms, which may continue usually for a month.”

9. [9]
   A significant issue in this case is whether the plaintiff’s psychiatric sequelae is causally linked to the circumstances of the accident involving the first defendant or whether it is a pre-existing condition causally independent, not sounding in damages. 

The trial

10. [10]
    The plaintiff represented himself at the trial which commenced on 2 May 2023.  
11. [11]
    The plaintiff gave evidence and called the following expert witnesses at trial:^[2]

    1. Dr Stephen Yelland, general practitioner;
    2. Dr Don Todman, neurologist;
    3. Professor Harvey Whiteford, psychiatrist;
    4. Dr Robert Labrom, orthopaedic spinal surgeon; and
    5. Dr Richard Theile, plastic surgeon.
12. [12]
    The plaintiff had obtained a report from Leanne Jackson who is a clinical neuropsychologist. The contents of this report were referred to by a number of the reporting experts. However, Ms Jackson was not called as a witness and her report was not tendered as an exhibit. 
13. [13]
    The second defendant called the following expert witnesses:

    1. Dr Derek Lovell, psychiatrist; and
    2. Dr Ian Dickinson, orthopaedic surgeon.
14. [14]
    On the fourth and final day of the trial, the plaintiff experienced a medical episode and the trial was adjourned to 31 October 2023 for final submissions by the parties.  
15. [15]
    The plaintiff has sent many documents and written submissions directly to my associate, prior to, during and after the May hearing. In relation to the May hearing, the only submissions that I have taken into account are those that have been marked as exhibits.^[3]
16. [16]
    On 31 October 2023, I heard the final oral submissions from the parties. Upon my request, the parties subsequently provided further written submissions addressing a number of issues that I raised. All material received and sent by the parties since 31 October 2023 has been marked for identification.
17. [17]
    I note the plaintiff’s submissions have been prepared with the assistance of the artificial intelligence platform of Chat GPT. The plaintiff vouched for the accuracy of his submissions, however, stated that this platform assisted in their organisational structure and added a flourish to his submissions.

The plaintiff’s circumstances

18. [18]
    The plaintiff is currently 43 years old and was born on 27 June 1980 in Syria. He immigrated to Australia in 1985 with his family and was granted Australian citizenship on 11 March 1988.
19. [19]
    In relation to the plaintiff’s personal circumstances, the second defendant has placed significant weight upon two particular matters:

    1. the plaintiff’s pre-existing psychological issues; and
    2. a number of stressors that the plaintiff has experienced, prior to and after the accident.
20. [20]
    The second defendant’s ultimate submission is that the plaintiff has bipolar disorder which is causally independent of any injury suffered in the accident, largely accounting for his difficulties. Further, the second defendant submits that the plaintiff has experienced a number of stressors after the accident which have caused the severity of his mental health issues. 
21. [21]
    Accordingly, the plaintiff’s personal circumstances assumed some importance in this trial.
22. [22]
    For some years prior to the accident, the plaintiff had been treated by his general practitioner, Dr Yelland, for anxiety and stress. 
23. [23]
    Professor Whiteford helpfully summarised the plaintiff’s medical records in his report dated 30 January 2019:

“I reviewed Mr Youssef’s medical records from his general practice, where he is treated by Dr Stephen Yelland.  The consultations commence with a consultation on 3 July 1999.  At a consultation on 22 January 2003 there is reference to his brother having suicided two years earlier and Mr Youssef “having anxiety tests … concerned something wrong with his chest.”  He was referred to respiratory physician, Dr McKeon, and the general practitioner seeing him at the time, Dr Peter Norris, has made reference to the possible need for antidepressant medication or psychological counselling.

On 31 January 2003, the comment is “will see a psychologist at uni”.  On 3 March 2003 there is reference to his brother being in hospital with bipolar disorder.  Mr Youssef had not seen the psychologist but was prescribed the anti-anxiety/antidepressant medication, sertraline (Zoloft) and the anti-anxiety medication, diazepam (Valium).  It is unclear if that treatment was continued.

On 10 January 2006, there is reference to Mr Youssef being involved in a motorbike accident seven weeks earlier, sustaining multiple abrasions, especially to his knees and a painful right wrist.  There is no reference to him having sustained a head injury.

On 16 April 2007 there is reference to “stressors – recently divorced … doesn’t like supply teaching.”  There is reference to him possibly having irritable bowel syndrome or a peptic ulcer.  On 23 April 2007 the entry is “panic episodes”.  On 6 June 2007 Mr Youssef was “stressed by new relationship and relief teaching”.  He was considered to have anxiety impacting on his sexual function.  He was prescribed Viagra (sildenafil).

On 14 July 2009 there is reference to “a few anxious episodes a week”.  Dr Yelland considered these may be panic attacks.

On 12 March 2013 there is reference to “custody case over child from former partner Paula … has another girlfriend who is pregnant”.  He was prescribed the anti-anxiety medication, diazepam (Valium), at that consultation.  On 17 September 2013 he was referred to the “Your Psychology” practice under a GP Mental Health Care Plan.  He was continuing to be prescribed diazepam (Valium) at that time.  I do not have a copy of this GP Mental Health Care Plan.

On 28 October 2014 he was “smoking cigarettes and pot”.  He was also referred to urologist, Dr Peter Heathcote.  In his correspondence to Dr Stephen Yelland on 19 November 2014, Dr Heathcote notes Mr Youssef was assessed in relation to problems with his penis (paraphimosis and a tight frenulum).  Dr Heathcote recommended surgery (a frenuloplasty) but Mr Youssef “was not convinced … started becoming verbose and almost agitated during the consultation and suggested that I wasn’t the right man for the job to which I have agreed”.”

24. [24]
    Relevantly, prior to the accident, the plaintiff had been subjected to a number of stressors in his life including lack of access to his sons, and domestic violence issues. Professor Whiteford noted that the plaintiff was in a relationship with a woman between 2007 and 2011 and their son was born in 2011. As of January 2019, the plaintiff had not seen his son since 2014. 
25. [25]
    The plaintiff told Professor Whiteford that he was then in a relationship with the mother of his other two sons from 2012 until May 2016. Relevantly, the plaintiff told Professor Whiteford that at the time of the accident, he was actively trying to secure access to see his younger two sons:

“Access had been prevented by a “fake DVO” taken out by their mother.  Mr Youssef said he was “working hard to get them back till the accident”.  Mr Youssef said his inability to be able to pursue access after the accident was another stressor for him.  Mr Youssef described a further stressor arising from this after he posted photos of the children on his Facebook page.  He said these photos were seen by their mother and action was brought against him for “breaching the DVO”.”

26. [26]
    After the accident, in March 2017, he was considered by a psychiatrist, Dr Lucas Murphy, to be psychotic in the manic phase of a bipolar disorder. From 18 April 2017 to 25 April 2017, the plaintiff was an involuntary inpatient at the Prince Charles Hospital. A diagnosis of situation crisis, mixed narcissistic and paranoid personality traits and a previous mixed affective state was noted. He was prescribed antipsychotic medication.
27. [27]
    He was readmitted to the Prince Charles Hospital from 12 May 2018 to 16 May 2018 with diagnoses “suggestive of post-concussive syndrome, possible bipolar disorder and cluster B personality traits”.
28. [28]
    After the accident, the plaintiff experienced a number of stressors, arising from:

    1. domestic violence difficulties;
    2. relationship difficulties;
    3. the loss of his teaching position;
    4. his time in Syria;
    5. his time in the United States of America; and
    6. a subsequent motor vehicle accident.
29. [29]
    The plaintiff’s ongoing issues with relationships are reflected in his criminal history which spans from 1998 to 2019, thus predating and postdating the accident.
30. [30]
    The majority of the plaintiff’s criminal history is constituted by charges of breaching domestic violence orders, including:

    1. on 19 March 2012, he was sentenced to a $200 recognisance with a good behaviour period of six months for breach of a domestic violence order, although no conviction was recorded;
    2. on 22 October 2012, he was fined $200 and a conviction was recorded for breach of a domestic violence order;
    3. on 16 July 2013, he was fined $500 and a conviction was recorded for contravention of a domestic violence order;
    4. on 17 December 2015, he was sentenced to a $5,000 recognisance with a good behaviour period for two years and convictions recorded for two charges of contravention of release conditions and three charges of contravention of a domestic violence order;
    5. on 15 November 2016, the recognisance was forfeited as he was fined $1,000 and a conviction recorded for two charges of contravention of a domestic violence order;
    6. on 25 May 2017, he was fined $330 and a conviction was recorded for contravention of a domestic violence order (aggravated offence). This offence occurred on 20 November 2016, one month before the accident;
    7. on 22 September 2017, he was sentenced to two months’ imprisonment to be suspended for 15 months for a breach of bail condition;
    8. on 22 October 2018, he was sentenced to two months’ imprisonment to be suspended for 12 months for one count of contravention of a domestic violence order (aggravated offence); and
    9. on 25 March 2019, he was sentenced to one month imprisonment for two counts of contravention of a domestic violence order. This offence breached the suspended sentence imposed on 22 October 2018 and this suspended sentence was extended.
31. [31]
    I note that the plaintiff stated in his evidence at the trial that he does not acknowledge that he has a criminal history:

“You don’t acknowledge that you have a criminal history?---No, I don’t, no. No, I’m not a criminal, I’m a doctor. I’m an educator.”

32. [32]
    The plaintiff seems to link his criminal history with his Syrian nationality and emphasised in his evidence that from 2012, he suffered stress from his relationship problems and Syrian nationality:

“All of the offences that are listed in the QPS court briefs relate to domestic violence breaches that you have carried out at the time?--- Allegedly, yes. That’s all alleged. That’s right.

All alleged?---By the – by Caitlyn [indistinct] yes. And this is to do with my Syrian nationality, okay? It’s to do---

It’s to do with your Syrian nationality?---You bet it is, yeah, and all the false media that this girl was listening to on the television. Man, you’ve got no idea what I’ve been through in the last 10 years in Australia since the – because the false Western media reporting – me being Syrian, people don’t understand whether I’m a good person or a bad person, being from Syria. They don’t know if I’m an ISIS or if I support the government, if I’m a good person. They don’t know.

And that’s been a significant stressor for you---?---Yes.

---ever since you’ve been in Australia, hasn’t it?---No, no, no, no. Only from 2012.

Only from 2012?---Since the false Western media’s reporting in Australia.

So you had four and a-half years leading up to that, to the accident in December of 2016, of significant stressors because of your Syrian heritage?---No, it started – it started in 2013, because 2012, my son was born – 2011, my son Sebastian was born. In 2012 I started court application with the Family Court to get access to him, Sebastian. Then I met Caitlyn in the same year. She gave me two subsequent children the two following years after. These – both women colluded with each other. I had a lot of problems. I was teaching, doing a PhD. I finished my PhD while this terrorism was being levelled against me by these Australian women, using the police against me with malicious DVO. They’d say, “He” – but then they’d come back and live with me after. It’s crazy. They’d come to my house. They’d come to my house, these women. I didn’t go anywhere. I was always at home. They’d come to my house and terrorise me at my house, and they caused me all this problem. Where’s my defence? Where’s – who’s – you know, I’m Syrian. Who’s going to respect me in Australia? No one.”

33. [33]
    The plaintiff stated that, because of the accident, he posted regularly on Facebook in relation to issues about Syria:

“And you publish regularly on Facebook with respect to issues about Syria ---?---Sorry, say again?

---and Assad. You publish regularly and have done for a long period of time with respect---?---Since the accident. Since the accident. If it wasn’t for the accident, I would never have developed this identity on Facebook. I can confirm that. It’s just – it’s in the absence of my career and then the accidents and what happened and all that. So Facebook developed from that.

And so when we go through the – your affidavit material, that sets out comprehensively your sense of being attacked by the Australian Government and people because of your Syrian heritage?---You bet, yeah. It’s – it’s – it’s going to snow – it’s going to increase. I’m going to increase. This is going to – the sound of this is going to increase. This noise that I’m – is going to increase, I can guarantee you, in the next one or two years. I’ll be on the news. You know, so, look, there’s a lot of injustice for people like myself being – having been here in Australia. You know, prior to the accident and, of course, since the accident as well – since the accident, you know, I haven’t been able to help myself, get justice for my children, for myself. I’ve been distracted. I’ve been taken – 1 believe – there was – there was an operation from America, and it had to do with the helicopters over my house. There were heli – this is fact. This is why Dr Murphy couldn’t understand me. He couldn’t understand me, but there was a – it’s a fact, a helicopter came over my house.

Did you think that they were counterterrorism---?---They are. Listen to me. I know counterterrorism. I’m acquainted with them. I meet with them regularly.”

34. [34]
    The Queensland Fixated Threat Assessment Centre was involved in July 2017 after the plaintiff posted a video of a Syrian child beheading an adult. He was placed in the Pine Rivers watchhouse on 16 July 2017.
35. [35]
    The plaintiff’s cousin was in the Syrian army and was killed by ISIS in Syria in 2016. The plaintiff stated that in 2016, Australian planes bombed Syrian soldiers which worsened his emotional distress.  
36. [36]
    The plaintiff then went to Syria in July 2017 where he experienced dangerous and stressful conditions. He explained what occurred in Syria in one of his many documents produced to the court:

“However, my head injury changed everything. It significantly reduced my inhibitions, and I took an impulsive decision to travel to Syria, a dangerous place for an Australian citizen with Syrian roots. While in Syria, I had several close encounters with death, including a grenade mortar that landed close to my sleeping quarters, and a soldier who threatened to place me in front lines against ISIS.

Moreover, upon arrival, I was drugged by a family member, stripped of my clothes, and informed that female cousins were eager to marry me for the sole purpose of leaving Syria. I disapproved of this, and I believe this was the reason for the attack.

All in all, my experience in Syria as traumatizing, and I consider myself fortunate to have made it out alive after three months. Despite the presence of three remaining aunties, two uncles and three cousins, I have no intention of returning to Syria.” 

37. [37]
    In 2020, the plaintiff went to the United States of America where he again experienced a number of stressful events, including that he:

    1. was lured over there to go into a relationship with a woman;
    2. had a child with that woman but was denied access to that child;
    3. was imprisoned for a short period of time; and
    4. was kept over there for two and a half years because of the COVID-19 pandemic.
38. [38]
    He explained the circumstances of his time in the United States of America to Dr Lovell:

“I asked Mr Youssef why there had been a gap of almost 6½ years^[4] between assessments.  He explained that he had only just returned from the United States on 27 August 2022.  He indicated that because he had been prolific writing on matters pertaining to Syria on Facebook and through his media platform he connected with an American woman named Nadine.

With the QSuper payment he received he paid for her ticket to come to Australia and they returned to the United States.

He stated that she ‘took complete control of his life against his will’.  He had a child with Nadine.  Hosea born on 15 June 2021, as Nadine wanted a Syrian baby.

He considered that he was tricked and deceived.

When he attempted to leave the United States on 31 March 2020, he explained that she alleged false domestic violence charges and he was jailed in Oklahoma for three weeks and his passport taken and withheld until June 2021.

For a period of this time he was homeless.

He stated that he had no formal psychiatric treatment in the United States but was prescribed hydralazine for anxiety.

He stated that the charges were initially dismissed.  His passport was returned to him.

He explained that Nadine with whom he was involved was the daughter of a former judge and that her uncle was an attorney and that the sheriffs ‘vaped in the cars and were corrupt’.  Over this time he stated that his credit cards were burnt, his passport was stolen and that he was denied access to Hosea.

His lawyer paid for him to return and he came back to the country.

A disability support pension which was awarded in 2019 was reinstated in September 2022.  He receives this payment together with some financial support from his father.”

39. [39]
    Upon his return, the plaintiff learnt that his father had signed over the family home to his younger brother and the plaintiff told Dr Lovell that his brother robbed him of his inheritance.
40. [40]
    The plaintiff was involved with another accident when, on 13 September 2022, he was driving his father’s car and an unlicensed driver struck him from the rear. Impact was at a speed of 40 km/hour and both vehicles were written off. The other driver was unlicensed and left the scene. The plaintiff told Dr Lovell, that in addition to his earlier complaints, he now had stiffness, pain, and reduced range of movement.
41. [41]
    The plaintiff told Dr Dickinson that he had whiplash and aggravation of his psychiatric injuries from this subsequent vehicle accident and that he had six weeks of physiotherapy funded by the insurance company.

Academic qualifications and relevant employment history

42. [42]
    The plaintiff is highly qualified university graduate^[5] with his education culminating in a Doctor of Philosophy from the Queensland University of Technology in March 2014. The plaintiff stated that to move into academia, which he wanted to do, he had to publish his academic paper; this occurred 14 days before the accident.
43. [43]
    Prior to the accident, the plaintiff was casually employed as a relief teacher where he taught at over 63 schools on an ad hoc basis, including:

    1. between 22 January 2007 and 27 November 2009, with Dutton Park State School as a general teacher;
    2. between 23 February 2010 and 25 August 2010, with the Brisbane North Institute of TAFE, Department of Education and Training as a teacher and tutor;
    3. between 19 July 2010 and 30 November 2010, with Morningside State School as a general teacher;
    4. between 21 May 2012 and 25 May 2012, with Marsden State School as a general teacher;
    5. between 9 September 2013 and 16 October 2013 with Everton Park State School as a general teacher;
    6. between 10 February 2014 and 4 March 2014 with Woodridge North State School as a general teacher;
    7. between 14 July 2014 and 25 August 2014 with Mitchelton State High School as a general teacher;
    8. between 5 October 2015 and 2 November 2015 with Craigslea State High School as a general teacher; and
    9. between 15 May 2016 and 3 June 2016 with Kelvin Grove State High School as a general teacher.
44. [44]
    The plaintiff applied for a teaching qualification under the Education (Queensland College of Teachers) Act 2005 (Qld) on 10 December 2010, having been initially registered on 21 December 2006. The plaintiff’s registration period was 21 December 2010 to 21 December 2015. 
45. [45]
    The plaintiff brought an application to have his registration renewed on 2 December 2015 for a full five-year period, which was later refused. The plaintiff’s status after 22 December 2015 was “Full-continued” pending assessment of his renewal application.
46. [46]
    The plaintiff’s application was considered by the Suitability to Teach Committee (the Suitability Committee) of the Queensland College of Teachers on 11 December 2017. 
47. [47]
    The Suitability Committee considered the plaintiff’s criminal history and noted that since March 2012, he had been convicted of 11 offences against the Domestic Violence Family Protection Act 2012 (Qld) and one offence against the Criminal Code Act 1995 (Cth); these offences substantially related to the breaches of domestic violence orders and release conditions.
48. [48]
    The Suitability Committee ultimately determined that he was not fit to teach for the following reasons:

“1.  Your criminal history indicates that you have been convicted of substantial number of offences since 2012. Your offending is regular and ongoing;

2. The nature and requirements of the DFVPA orders/release conditions which you have contravened have been repeatedly explained to you by police and yet you continue to disregard these orders;

3. You have provided no material suggesting remorse or reflection regarding these offences, nor evidence of any attempts by you to end this pattern of behaviour;

4. Your offending behaviour includes aggressive, intimidating and threatening messages towards your former partner;

5. Your history of repeated offending shows a considerable disregard for the law;

6. Your history of repeated offending and the nature of the offences is contrary to the standard of behaviour expected of a teacher by the community and the profession and shows you unfit to continue to hold registration;

7. You failed to make a full and accurate disclosure of your criminal history in your renewal application.”

49. [49]
    The Suitability Committee determined that the following notation be made on the register of teachers regarding any future application by the plaintiff:

“‘1.    Any future application for registration by Chadi Youssef to the QCT is to be accompanied by evidence that he has successfully addressed the issues surrounding the repeated criminal offending over the period from 2012 to 2017 and which formed the basis of the QCT’s decision to refuse his renewal application for registration in December 2017.

This evidence should take the form of a report by a treating physician/psychologist/therapist informing the QCT as to the following matters:

1. Remedial action/steps taken by Dr Youssef to address the offending behaviour and to ensure more appropriate ways of dealing with such circumstances in the future;
2. Dr Youssef’s reflections on / insight into the causes, consequences and appropriateness of his behaviour;
3. The likelihood of any further similar behaviour by Dr Youssef in the future.

The cost associated with any such treatment and report is to be borne by Dr Youssef.

2. Given the decision of the STT Committee in December 2017 to find Dr Youssef not suitable to teach was substantially on the basis of his repeated criminal offending over the period from 2012 to 2017, any future assessment of his suitability to teach will take particular account of whether or not he has been convicted of any similar offences since that time.’”

50. [50]
    The plaintiff did not respond to the notices from the Queensland College of Teachers and provided the following reason during his evidence:

“You never gave them anything?---No, I haven’t – I haven’t – I’ve not yet responded to this because of my head injury and the accident. This came to me after the accident. I received this – the – my teachers – my teacher registration from Queensland College of Teachers was – I’m not too sure what – I had to give a response to them because it was suspended because of the breaches of the domestic violence orders, the false – the allegations of breaches, the false allegations that were levelled against me to do with contact. So it would involve the mother of my child contacting me by phone, which I then would respond, and she’d use that to the police and say, “Look, he’s contacting me.” So these are the – these are the bases of the breaches, firstly. And that’s what caused Queensland College of Teachers to become concerned about me, and so they – in 2017 they – my understanding is that they suspended my licence until I gave something to them by writing addressing the breach – the domestic violence breaches. So I just haven’t – since 2017, I have not pursued with it. I can do it any time, but I haven’t pursued with it. It can be resolved very easily. My registration can be reinstated very easily. I don’t want it to be. And secondly, I’m not going down this line of work in my life. I’m going to academia, to the university, to lecture; more money; better job. So my teaching, really, career, in 2017, post-accident, I would say really coincided in the accident and the after. I mean, this happened after the accident, so not before, but after the accident I received this information. I just haven’t, you know, bothered to respond back to the Queensland College of Teachers because I’m – firstly, I’m angry – very angry at what’s happened to me, the injustices I’ve experienced; very angry. So this is – I expect it all to be, you know, resolved in its own way in due course. You know, I’m not going to----"

51. [51]
    I note that that the plaintiff contends that his application was refused due to his Syrian nationality. However, in an affidavit filed with the Federal Circuit and Family Court, the plaintiff stated that his life took a turn for the worse in 2016 when his ex-partner falsely accused him of domestic violence, resulting in the loss of his teacher registration and severe damage to his reputation and career.
52. [52]
    The second defendant contends that the plaintiff’s application was refused on the basis of his criminal history which is consistent with the notation on the register that:

“Any future application for registration by Chadi Youssef to the QCT is to be accompanied by evidence that he has successfully addressed the issues surrounding the repeated criminal offending over the period from 2012 to 2017 and which formed the basis of the QCT’s decision to refuse his renewal application for registration in December 2017…”

53. [53]
    On 8 September 2017, the Professional Capacity and Teacher Committee (the Professional Committee) of the Queensland College of Teachers notified the plaintiff that it intended to conduct disciplinary proceedings against him. On 8 February 2018, the Professional Committee determined that the terms of the refusal of the plaintiff’s registration from the Suitability Committee adequately addressed its concerns and decided to take no further action against the plaintiff with respect to the disciplinary proceedings.
54. [54]
    The plaintiff cannot presently practice as a teacher as his professional registration was withdrawn and in May 2020, he was given a notice of intention to conduct disciplinary proceedings by the Professional Committee pursuant to section 118 of the Education (Queensland College of Teachers) Act 2005 (Qld).
55. [55]
    The facts and circumstances forming the basis of the ground of disciplinary action were the offences of which the plaintiff was convicted in the Brisbane Magistrates Court on 22 October 2018 and 25 March 2019. The plaintiff did not respond to this notice. He says his failure to do so was a result of the accident:

“That’s the stuff with respect to your teacher’s registration?---The – yeah, and the fact that I haven’t been able to get back – you know, resolve it because of the accident, like, my head injury, so I haven’t been able to write back to QCT and explaining simply to them what happened with these alleged breaches and they – they can reinstate my registration. That’s what they said to me that’s all I have to do. I haven’t done it.

Well, you’re hopeful that they – you’re hopeful that they will renew your registration?---No, it’s – it’s what’s written there. Read it properly yourself. Have you read all of the documents.

Thank you?---Clarify yourself. Read them.”

56. [56]
    Prior to the accident, the plaintiff also operated a used car business which involved him buying old cars and doing them up in his father’s yard. He had a licence to carry out this business, but he stated that he closed this business down in 2016 in preparation for his career in academia. 
57. [57]
    The taxation records produced by the plaintiff only deal with the three years prior to the accident and they show that he received minimal income, certainly from teaching pursuits.  

58. [58]
    Clearly, the plaintiff’s income was low for these three years. The plaintiff stated that this was because he was focussing on his studies and getting his thesis published during this time. 
59. [59]
    The statement of loss and damage, sworn by the plaintiff, shows the following in relation to his earning as a teacher prior to the accident:

    1. $2,947 for the financial year ended 30 June 2014;
    2. $1,754 for the financial year ended 30 June 2015; and
    3. $3,178 for the period 1 July 2015 to 30 August 2016. 
60. [60]
    Since the accident, the plaintiff has not worked.

Spinal injury and facial injuries

61. [61]
    Immediately after the accident, the plaintiff was taken to hospital. Dr Dickinson, in his 10 August 2018 report, conveniently summarised the plaintiff’s medical records.
62. [62]
    Dr Dickinson stated that the hospital file of 22 December 2016 recorded x-rays of the chest and pelvis with no abnormality. There were also CT scans of the face, cervical spine and head, as well as the left shoulder. The left shoulder was normal. The CT scans of the face, neck and head revealed the comminuted nasal fractures, and no cranial pathology or cervical spine fracture was identified. 
63. [63]
    The plaintiff’s facial injuries were sutured, and he was subsequently discharged. 

Medical records

64. [64]
    Dr Dickinson provided the following summary:

“The Medical Certificate of 22 February 2017 recorded the injuries as being a fractured nose and lacerations of the nose and chin. Mr Youssef was also recorded to have poor concentration, memory, decision making and motivation with other mental symptoms.

…

The provider treatment plans suggested physiotherapy for the left neck and left sided neck and chest pains.

The GP notes record that Mr Youssef had attended shortly after the accident with his facial and chin lacerations.  He had subsequently attended two months later because of neck and scapular pain on the left side.  He was referred to physiotherapy.

The clinical notes of Walton Bridge Medical Centre recorded a consultation seven days after the accident (29 December 2016).  There was pain over the left scapular region exacerbated by neck movement but not by shoulder movement.  There were also facial injuries.  His reason for the visit was “neck strain” and also removal of sutures.

Subsequent entries included left neck pain radiating posteriorly to the scapula through until late February 2017.  These had improved by late March 2017.  There were numbers of psychiatric entries.  There were no later entries in relation to orthopaedic aspects of Mr Youssef’s injuries.

There was also a note from the Arana Hills Medical Centre recording dysfunctional strain associated with the left first rib and of C4/5 causing left neck pain and tightness.  Dr Michael Yelland reported to Dr Stephen Yelland in the letter of 10 March 2017.  There were some manipulative treatment and exercises prescribed.

The referral to Q-Scan reflected potential C8 distribution pain by C6 was also suggested.  The pain and tingling was on the ulnar side of the left arm but there was also shoulder pain.

The Ambulance Report form recorded left shoulder pain but not radicular type pain (from an earlier injury 14 April 2011).

The history had been a dislocation of the left shoulder at soccer training “going for a drive” and there had been a previous left shoulder dislocation.”

(Emphasis in original).

Previous x-rays

65. [65]
    In terms of earlier radiographs, Dr Dickinson set out the following:

“The only x-rays available for review were the OPG of the jaw dated 27 June 2018.  It shows the upper cervical spine which is normal.

X-rays in the Walton Bridge medical file recorded an x-ray of the cervical spine which stated there was moderate degenerative change at C5/6.

There was also a normal x-ray of the thoracic spine and of the left shoulder.

An ultrasound of the left shoulder recorded thickening of the subdeltoid bursa up to 2.5mm in thickness.  The ultrasound was otherwise normal.

An MRI scan of the cervical spine (Q-Scan 23 March 2017) reported degenerative changes at C5/6 with left neural foramen narrowing at C6.  It was reported that this “would account for a possible left C6 radiculopathy”.

An earlier x-ray at Royal Brisbane and Women’s Hospital (04 February 2010) recorded a left shoulder dislocation.  There was also a further dislocation on 14 April 2011.”

The plaintiff’s account of his symptoms

66. [66]
    The plaintiff stated that he suffered a cervical spine injury and facial injuries from the accident which he explained in his evidence as follows:

“Does a list of issues help you to say – about what you – what you want to tell the court?---Okay. It’s whether the plaintiff suffered a head injury. Yeah, I suffered a head injury – significant head injury. I don’t understand the extent of it till this day. I’m still – still struggling with it, in identifying these issues. The extent of my injuries. But yeah, I had – I suffered a head injury and that concussive syndrome – post-concussive syndrome. Not too sure what that is. But my head’s – it feels like it’s rattling all the time. Whether the plaintiff suffered a head injury. I’ve got a scar on my chin here, and my face, my nose – broken nose. Yeah, I don’t know.

How long were you in hospital for?---I was in hospital that night and till the next morning. I – I wanted to get back home, and I insisted to the hospital that I – you know, if I can go home. I just want to be home. And they – they let me. They released me and I had to go see my doctor to take the stitches back out of my – the stitches. I saw Dr Yelland. He removed the stitches a week later, after being discharged from hospital. So Dr Yelland removed the stitches about seven days after I was released from the hospital and then I got revision on the scar six months later by Dr Theile. That was traumatic itself. Yeah. Number 2. Yeah, so I had a cervical spine issue [indistinct] when I – when I hit the – I mean, I – I’ve already got some injuries before the accident. I already had a dislocated shoulder from years and years and years before the accident. But I’ve had some issue with my neck and my shoulder and my back. I don’t know what exactly the problem is. Something to do with C6 or C7. But I have some problem with my neck and back, constantly. I have pain and I have problems with that, and I see physio constantly, every week, just to  maintain my posture, to maintain body comfort as best I can….”

67. [67]
    He also stated in his evidence that it is hard to breathe through his nose. He complained about pain in his lower back which he believes is a secondary result^[6] of the December 2016 accident.
68. [68]
    In relation to these physical injuries, the plaintiff was examined by three specialists:

    1. Dr Labrom, an orthopaedic spinal surgeon called by the plaintiff, who examined the plaintiff on 5 December 2018;
    2. Dr Todman, a neurologist called by the plaintiff, who examined the plaintiff sometime before April 2019;^[7] and,
    3. Dr Dickinson, an orthopaedic surgeon called by the second defendant, who examined the plaintiff on 27 June 2018 and 25 January 2023.
69. [69]
    To each of these specialists, the plaintiff explained the pain that he was suffering.
70. [70]
    Dr Labrom examined the plaintiff on 5 December 2018. Dr Labrom stated that the plaintiff complained of constant pain in his neck, pain that radiated into the left shoulder, biceps region, lateral elbow on the left side and also pain that radiated into the ulnar border of his forearm and little finger. The plaintiff rated his pain 10/10 where 10/10 was rated as the worst pain imaginable. The plaintiff rated his pain as very severe. 
71. [71]
    The plaintiff also told Dr Labrom that he had a reduced concentration capacity, reduced sleeping habits, a poor recreational capacity and also headaches which occurred moderately and frequently. He stated that he struggled to read because of neck pain, and he can only lift very light objects.
72. [72]
    Dr Labrom commented that the plaintiff can only care for himself at home in a minimal way. He required assistance generally and, as of December 2018, when Dr Labrom examined the plaintiff, the plaintiff rated his pain at very severe. Dr Labrom noted that, at this time, he struggled to do any work and he also struggled to work at a computer.
73. [73]
    Dr Todman’s first report is dated 24 April 2019 where he set out what the plaintiff told him about his symptoms and treatment:

“Dr Youssef has continued to suffer from symptoms following this accident.  There has been persistent neck pain.  The pain is bilateral but worse on the left side and extends to the left shoulder girdle and left upper limb.  It averages at least 5/10 but increase up to 9/10 with movements, postures and activities.  He gets pain at night with poor sleep.

Headaches were quite frequent at first but now only occur occasionally.

He gets intermittent numbness in the left forearm and hand.

He has had problems with short term memory and concentration.  He is very forgetful of details of conversations and day to day events.  He forgets names as well as where he has put things.  He has trouble organising his thoughts, concentration and with forward planning.  There has also been change in mood.  He has had secondary anxiety and depression and a psychiatrist has diagnosed bipolar disorder.

For treatment he has had physiotherapy and now has regular massage therapy for his neck.  He has taken various analgesics for the pain but is trying to avoid them now.  He is on Seroquel as well as a sleeping tablet from his psychiatrist.”

74. [74]
    Dr Dickinson was the only doctor who examined the plaintiff twice in relation to his physical injuries; once on 27 June 2018 and subsequently on 25 January 2023.
75. [75]
    When the plaintiff saw Dr Dickinson on 27 June 2018, the plaintiff said he had pain in the left side of the neck radiating down towards the left shoulder and also pain in the left shoulder. He said this pain was present all the time, and was not particularly related to any specific injury. He also said he had right leg pain at times.
76. [76]
    Dr Dickinson examined him again on 25 January 2023 and the plaintiff stated that he continued to have pain around the back of his neck and across both shoulders. The plaintiff told Dr Dickinson that he “feels lumbar pain which he relates to radiating down from his neck. He said his body feels tight and sore…”.  

Dr Theile – plastic surgeon (called by the plaintiff)

77. [77]
    Dr Theile is a plastic surgeon and did not provide an expert report at the trial. However, the plaintiff called him as a witness and he gave evidence at the hearing.
78. [78]
    Dr Theile thought that the plaintiff’s nasal laceration had significant chance of improvement with revision. Accordingly, the scar that Dr Theile revised was on the plaintiff’s nasal bridge and probably involved between 10 and 12 small stitches.
79. [79]
    The plaintiff also had a three-centimetre chin laceration. As Dr Theile did not think there was a great likelihood of improving this laceration with surgery, he did not revise this injury.
80. [80]
    Dr Theile could not comment on whether the plaintiff’s injury on his nose could potentially obstruct his airway and cause breathing difficulties. Dr Theile stated there was no formal assessment undertaken of the plaintiff’s nasal bones or nasal airway and therefore he could not make any comment about the likelihood of any nasal airway issues following the plaintiff’s accident.

Dr Labrom – orthopaedic surgeon (called by the plaintiff)

81. [81]
    Dr Labrom is a consultant orthopaedic spinal surgeon who examined the plaintiff on 5 December 2018 and set out the following findings in his report:

“Examination confirmed a fellow who complained of neck pain.  He had a forward flexion range such that he could forward flex his chin so that it almost touched his chest.  He could extend his cervical spine to 5º beyond neutral.  He could rotate his head to the right side to 40º though to the left only 30º.  He had pain in the left upper limb consistent with pain in the distribution of the C6 dermatome which included the lateral upper arm, biceps and lateral elbow as well as proximal forearm on the radial side.  He did complain of some pain along the ulnar border of his forearm into his little finger.  He had weakness of his left biceps compared to the right with a power Grade of IV over V (MRC).  He did have some muscular wasting of his left biceps which was probably more than related to non-dominance, in my opinion.

This fellow also had some muscular guarding of his posterior spinal musculature.  His thoracic and lumbar spine examinations were normal.  This fellow denied any alteration to his bladder nor bowel habit.  He said that his sexual function had become significantly reduced because of pain.”

82. [82]
    Dr Labrom then set out the plaintiff’s injuries which, in his view, were caused by the accident:

“More likely than not, this fellow describes a road traffic accident of significance where the forward ejection of his body over the motorbike handles resulting in compressive load to his neck, face and head would have seen the potential for an acute Injury at the C5/6 level.

Radiological studies from 23 March 2017 confirm the potential of chronicity and degenerate change at the C5/6 level. However, this fellow denies any significant neck pain and particularly any referred left upper limb pain before this road traffic accident.

Therefore, more likely than not, an acute injury has occurred at the C5/6 level which could be seen as an acute discal injury in the context of pre-existent degenerate change at the C5/6 level.

I would suggest that he has ongoing symptoms which are consistent with a C6 nerve root compression which weren’t present before the motorbike accident.

Accordingly, this fellow has ongoing neck pain and radicular pain in the left upper extremity which relate to the road traffic accident 22 December 2016, in my opinion.”

83. [83]
    In relation to the plaintiff’s permanent impairment, Dr Labrom concluded that the plaintiff suffered from a 10% impairment of whole person which fairly relates to the accident:

“This person does have a permanent impairment which is measurable.  Using the AMA5 and referring to Table 15.5 of the Guides which has the criteria for rating impairment due to cervical spine injury, this person is best defined using a DRE Cervical Category III descriptor. This is a patient with an impairment that is measurable between 10-13%. There is a range which relates to a radiculopathy type presentation and I would suggest that Dr Youssef fits this criteria well.

I would suggest that based upon his examination, burden of care which includes the ongoing use of analgesia, and also the effect that this has upon his working life and domestic and home life, Dr Youssef would be at the upper end of this range. Accordingly, a 12% impairment of whole person would relate and of this 12% I would suggest that 2% impairment of whole person would be fairly related to his pre-existent degenerate change seen at the C5/6 level radiologically which would explain some of his neck stiffness and the like. However, the majority of his impairment calculation, 10% of whole person, would relate fairly to the acute injury to the C5/6 level which has probably resulted in an acute disc prolapse causing compression of the C6 nerve root. This 10% impairment of whole person therefore fairly relates to the motorbike accident, 22 December 2016.”

84. [84]
    Dr Labrom stated that the plaintiff’s prognosis is uncertain in relation to his injuries and suggested that his further treatment plan may dictate his prognosis.
85. [85]
    Dr Labrom stated that the plaintiff requires further treatment:

“This person requires further medical treatment.  I would suggest that he requires careful attention from a spinal surgeon to assess the potential of any benefit that could be received from a steroid injection to the C6 nerve root which could see therapeutic and/or diagnostic benefit. Possibly, a surgical input could be seen in the form of an anterior cervical discectomy and fusion procedure at C5/6. I would suggest that the indication for this surgery would fairly reflect the resection of the acute prolapse of disc and compression of the C6 nerve root and the necessary fusion that would be required would also correlate to this. One could argue that this procedure also somewhat addresses the potential of degenerate change that was pre-existent before 22 December 2016. However, the fact remains, that this person was asymptomatic with regards any left upper limb neuralgia and it seems that the neurological examination in my office fits well with a description of a C6 radiculopathy and a somewhat inexplicable C8 type radiculopathy which refers to the ulnar border of his forearm and little finger symptoms. I do acknowledge respectfully that this differs to other reporting specialists, though I can only offer what was seen and found on the time of examination, the date that I have provided.

Alternatively, Dr Youssef could follow a non-surgical pathway. However, he requires optimisation of his chronic pain management with the potential of better pain analgesia for usage over a longer period of time. This could also be seen suitably with a careful assessment by a pain specialist.”

86. [86]
    In Dr Labrom’s view, the injuries suffered by the plaintiff will have an impact upon his future work:

“This person will have an impact upon his capacity to work into the future if his pain is not managed better. Work as an academic educational professional could be still possible though I believe that his treatment requires further clarification with reference to optimisation of his pain management either surgically, or non-surgically.

Dr Youssef is also struggling with regards home and domestic care. Any excessive work in the yard or similar would be difficult to achieve without paid assistance. It appears that he is just coping at home with regards domestic chores and personal hygiene tasks.”

87. [87]
    Dr Labrom gave evidence at the hearing and noted that the plaintiff made no complaint of any lower back pain when he was examined.
88. [88]
    All three experts had the opportunity to examine an MRI scan of the plaintiff’s cervical spine from 23 March 2017. On this radiological examination, Dr Labrom noted that:

“This fellow has had multiple imaging studies. I have been able to review imaging studies and for convenience have enclosed the relevant images from an MRI scan of this person’s cervical spine from 23 March 2017. It demonstrates clear evidence of a disc prolapse at the C5/6 level with left-sided compression of the C6 nerve root significantly. The axial study of the right hand image concerns significant compression of the exit foramen and it could be that there is a degree of osteophyte formation, though, it is also possible that the disc protrusion component could be related to a more acute injury, particularly in the context of the mechanism of injury described in the form of a severe force through the face and head after an ejection injury on a motorbike on 22 December 2016, in my opinion.

Other features of the radiology study confirm desiccation of other discs though it appears that the C5/6 disc is the most involved with endplate oedema changes seen which does suggest a degree of chronicity.”

89. [89]
    Dr Labrom stated that osteophytes are caused by the deposits of calcium over a significant period of time and the presence of osteophytes is not a consequence of the accident. 
90. [90]
    Dr Labrom agreed with Dr Dickinson’s 13 August 2023 report as to neuroforaminal narrowing, which is when a structure causes narrowing, stricture or stenosis of the exit tunnel where the C6 nerve root, in the plaintiff’s instance, is compromised or compressed in its exit from the spinal cord.
91. [91]
    Dr Labrom agreed with Dr Dickinson (and the radiologists) that there is a combination of a bone spur or osteophyte that appears degenerate in nature at the plaintiff’s C5/6 nerve root, which compromises or crowds that canal. Dr Labrom was of the belief that “there is also an acute disc protrusion of soft material that now has further compromised that”. Dr Labrom stated that he and Dr Dickinson appeared to agree that the plaintiff has significant neuroforaminal stenosis.
92. [92]
    Dr Labrom noted that between examiners there can be differing examination findings. He stated that he would be surprised, based upon his assessment undertaken in December of 2018, that the plaintiff would have made a complete resolution of his symptoms of C6 radiculopathy in the absence of any treatment.
93. [93]
    However, at the hearing, Dr Labrom confirmed in his evidence that nothing raised by Dr Dickinson changed his view in any way.

Dr Todman – neurologist (called by the plaintiff)

94. [94]
    Dr Todman is a neurologist who provided two reports and gave evidence at the hearing consistent with these reports. Dr Todman only examined the plaintiff on one occasion which was sometime before 24 April 2019. 
95. [95]
    Dr Todman’s examination of the plaintiff showed restricted cervical spine movements by 30-40º to the left.  He noted that there was tenderness in mid cervical muscles and left trapezius muscles. The plaintiff’s “strength was normal and sensation revealed only slight altered feeling in the left fifth finger”.  His left biceps and supinator reflexes were reduced.
96. [96]
    Dr Todman’s report stated that the injury to the cervical spine resulted in a left C5-6 disc protrusion and that the plaintiff has a cervical radiculopathy with involvement of the left C6 nerve root. Dr Todman also noted that “there has been ongoing pain and restricted movement which has responded poorly to conservative treatment”.
97. [97]
    Dr Todman stated that the plaintiff’s cervical spine injury is from AMA 5, Table 15.5 and is a DRE Category III injury, which is between 10-13% whole person impairment.
98. [98]
    Dr Todman estimated a 12% whole person impairment from this injury. He did not agree with Dr Labrom that there was any clinical pre-existing condition. Dr Todman stated that the plaintiff was symptom free and had only the expected age-related changes in his spine apart from this disc protrusion.
99. [99]
    Dr Todman stated that the symptoms will continue to affect Dr Youssef in day-to-day activities and employment.  In Dr Todman’s opinion, any return to the workplace would be dependent on improvement in all symptoms; both his chronic pain as well as psychological distress with appropriate treatment. This seemed likely in the foreseeable future. In the home environment, Dr Todman noted the plaintiff requires assistance for heavier domestic tasks and home maintenance of up to four hours per week.
100. [100]
     In his evidence, Dr Todman stated that the plaintiff would unlikely get back to his high level of work in education:

“Well, I – I think that because, Dr Youssef, you’ve suffered from significant symptoms, which include the pain you’ve experienced from the neck injury, as well as the psychological distress and the reported cognitive symptoms which maybe more likely related to psychological distress rather than a brain injury – all of those amount to a substantial disability and, therefore, I – I would conclude it’s unlikely that you would get back to the previous high-level work in education that you were undertaking.”

101. [101]
     With respect to the plaintiff’s cervical injury, Dr Todman agreed with Dr Labrom that a review by a spinal surgeon and consideration of the left C6 nerve root and possible cervical spine surgery would be appropriate. The nerve root block would cost $1,500. Any surgery (which he believed was likely to be required greater than a 50% probability) would cost up to $30,000.
102. [102]
     Dr Todman concurred with Dr Labrom’s diagnosis as to the aetiology of the plaintiff’s cervical spine injury.
103. [103]
     At the hearing, Dr Todman explained the relevance of the plaintiff’s MRI scan undertaken in 2017:

“Were you able to see the radiology, which I put to you showed pre-existing degeneration in the cervical spine?---Well, the – the MRI of cervical spine shows a left C5-6 disc protrusion. He also has the expected age-related changes in the spine.

Could you just repeat that, Doctor. Sorry, I missed that?---Yes. The MRI scan revealed a left C5-6 disc protrusion, which I think is most likely related to this injury in question. He also has the expected age-related changes through the spine that you would expect…

…

For the purposes of the current hypothesis, if I put to you that scan shows – these show the disc space narrowing with asymmetric disc osteophyte complexes, more on the left than the right. A disc osteophyte complex is a condition that has been present for a long period of time in a degenerate disc because it’s a deposit of calcium in the disc, isn’t it?---Well, there’s two things there. The MRI scan is showing an – an osteophyte, which is like a little bony outgrowth at one level, combined with a disc protrusion. Now, I think, on the balance of probabilities, it’s likely that he’s had some age-related changes, like the osteophytes, and then, on top of that, the injury caused the disc protrusion. That’s what a disc osteophyte complex means.

And what does “asymmetric disc osteophyte complexes” mean to you?---Well, it means it’s more marked on one side than the other.

And that could possibly account for the left C6 radiculopathy, couldn’t it? You need to have an impingement of a nerve root for – to have a radiculopathy?---Correct, yes.

And so that radiculopathy – and just for her Honour’s purposes, that means that there is referred pain in the distribution down from left C6 into the arm, isn’t it?---Well, that’s the symptom. The symptom is pain that travels or is referred into the upper limb, associated with the irritation or compression of the cervical nerve root. And there is also, on the MRI, I put to you, no cause for the left C8 radiculopathy. You would need an impingement – or some impingement upon the nerve to cause radiculopathy, as we spoke about before?---You – you’re talking about another level in the spine other than the C5-6?

Yeah, C8?---Yes. Is that what you’re asking me about? A – yes, there was not such a thing reported in the MRI scan.”

104. [104]
     Dr Todman explained at the hearing that as the plaintiff was not a sufferer of neck symptoms prior to the accident, the plaintiff’s symptoms are time-related to this accident rather than just some age-related incidental factor.
105. [105]
     In relation to the plaintiff’s lumbar spine pain, Dr Todman believes that there are causes for this pain other than the accident.

Dr Dickinson – orthopaedic surgeon (called by the second defendant)

106. [106]
     Dr Dickinson is an orthopaedic surgeon who prepared two reports after examining the plaintiff on two occasions being 27 June 2018 and 25 January 2023. His first report prepared after examining the plaintiff on 27 June 2018 is dated 10 August 2018 (the first report) and his latest report prepared after examining the plaintiff on 25 January 2023 is dated 15 February 2023 (the latest report). Dr Dickinson stated that the plaintiff’s major injuries were facial injuries and he has subsequently had neck, shoulder and occasional lumbar pain. 
107. [107]
     Dr Dickinson stated that the plaintiff’s injuries have stabilised and reached maximal medical improvement.
108. [108]
     In his latest report, Dr Dickinson recorded that the plaintiff told him that he:

     1. has pain around the back of his neck and across both shoulders;
     2. has lumbar pain which he relates to radiation down from his neck; and
     3. his body feels tight and sore.
109. [109]
     Dr Dickinson stated that there is no relationship between these symptoms and the accident.
110. [110]
     Dr Dickinson set out his clinical findings of the 27 June 2018 examination in his first report:

“He has normal musculature around the neck and shoulder girdle. There is no tenderness of the musculature. He has a full comfortable range of shoulder movement. There is no instability. Power and sensation in the upper limbs are normal.

Mr Youssef moves his neck comfortably through a full range of motion. At times there were withering movements but without pain.

The deep tendon reflexes were brisk and equal.

Mr Youssef had no muscle spasm or guarding in the lumbar spine. There was no tenderness. He was able to flex his spine such that the fingertips reached to the floor. Extension and lateral flexion were normal.

There was no restriction of straight leg raising and there were no neurological signs.” 

111. [111]
     Dr Dickinson concluded that, as of 27 June 2018, there was no objective finding in relation to the cervical spine, left shoulder, nor any neurological findings. He provided the following summary:

“There is a full range of cervical spinal movement. The movement is comfortable. At times where were withering movements but there was no pain. The shoulders had a normal range of motion and no other significant findings.

There was no sensory loss nor any loss of power. The reflexes were normal and there was no atrophy.”

112. [112]
     The second examination occurred, some four and a half years later on 25 January 2023 and Dr Dickinson again set out his clinical findings in relation to this examination in his latest report:

“He demonstrated his neck and arm movements during the course of the consultation.

On formal physical examination, there was no tenderness around the neck or shoulder girdle region.  There is prominence of the acromioclavicular joints but no tenderness.  He has a full range of shoulder movements.

Mr Youssef has a variable range of neck movement but generally reduced on formal examination, the measured ranges being:

There is normal power and sensation in the upper limbs.  Mr Youssef described subjective numbness in the left little finger.  The deep tendon reflexes are brisk and equal.

He demonstrated a full comfortable range of lumbar movement during which time he “cracked” his back.  There was normal power and sensation in the lower limbs with the deep tendon reflexes being brisk and equal.  There was subjective numbness in the left little toe.”

113. [113]
     In his latest report, Dr Dickinson summarised these clinical findings:

“Mr Youssef has prominence of the acromioclavicular joints but no other abnormality at the shoulder joints.

He has a variable range of neck movement but generally reduced on formal examination. There is a full comfortable range of lumbar spinal movement. There is no neurological finding in the arms or legs other than minor subjective numbness in the left little finger and toe.”

114. [114]
     Accordingly, Dr Dickinson found in his latest report that on 25 January 2023 there was a mild restriction of movement of the cervical spine but no restriction of movement in the shoulders. Further, Dr Dickinson found no neurological abnormality other than a minor subjective numbness in the left little finger and left little toe.
115. [115]
     In relation to pre-existing conditions, whilst Dr Dickinson referred to the plaintiff’s degenerative change in the cervical spine at C5/6 with uncovertebral disease at C5/6 and narrowing of the left C6 exit foramen, he stated in his latest report that the plaintiff does not have any pre-existing condition which has been aggravated by the injuries sustained in the accident.
116. [116]
     The plaintiff was assessed according to the requirements of the American Medical Association Guides and Dr Dickinson stated that he had no specific clinical findings in relation to these assessments. Accordingly, in the presence of symptoms without any clinical findings, Dr Dickinson assessed the plaintiff as a DRE Category I which is a 0% impairment.
117. [117]
     In his first report, Dr Dickinson stated that there is “no range of percentages assessed according to the cervical spine scale”. Hence, Dr Dickinson stated that there is a 0% impairment. 
118. [118]
     In relation to the left shoulder, Dr Dickinson stated there is a full range of motion and no other abnormality. Dr Dickinson stated that the anatomic impairment (i.e., in this case the range of motion) is the basis for this upper extremity impairment and no other impairment applies.
119. [119]
     Dr Dickinson stated that the plaintiff appears to have significant other medical issues which are complicating his current medical situation. There is no evidence of any orthopaedic condition of consequence.
120. [120]
     Dr Dickinson’s latest report accords with his first report and he maintained his view that the plaintiff has 0% impairment. He noted that whilst the plaintiff has symptoms, there are no significant clinical findings.
121. [121]
     Dr Dickinson stated that the plaintiff’s injuries did not affect the plaintiff’s employment other than for the immediate post-injury phase.
122. [122]
     Dr Dickinson did not agree with Dr Labrom’s view that the plaintiff had a DRE Category III impairment of the cervical spine:

“The changes on the cervical spine are degenerative change at C5-6. The radicular symptoms that Mr Youssef had described included pain in the C6 dermatome which is not how he presented to me. Dr Labrom also found wasting in the left biceps which he considered more than related to non-dominance.

He also commented on the “inexplicable C8 radiculopathy”. I note on my assessment that Mr Youssef had normal deep tendon reflexes in the upper limbs where the expectation would be that if C6 were involved then the deep tendon reflex would be reduced at the left elbow.

Dr Todman also found a reduced deep tendon reflex at the left sided biceps tendon.

However, such changes are related to the chronic degenerative change and are not related to the effects of injury. As well, Dr Todman noted the inconsistent finding in relation to the left little finger. Mr Youssef in his discussion with me related the left little finger and left little toe symptoms and which are not associated clinical entities.

Of importance is the fact that the contemporaneous records did not reflect an injury to the cervical spine.

There is no other readily ascertainable additional fact which would assist me in reaching a more reliable conclusion than I have.”

123. [123]
     At the hearing, Dr Dickinson stated the soft tissue injuries suffered by the plaintiff to his cervical spine and left shoulder were temporary and that they resolved over a period of time. Dr Dickinson stated that there was little evidence of any injury to the plaintiff’s lumbar spine; although, he could have had an injury to the lumbar spine at the time, which would settle.
124. [124]
     Dr Dickinson agreed that it was possible to have a head injury without the body suffering any significant trauma.

Head injury and mental health disorder

125. [125]
     The plaintiff pleads that he suffered a head injury including post-concussive syndrome. In his evidence he stated that: 

“Yeah, I suffered a head injury – significant head injury. I don’t understand the extent of it till this day. I’m still – still struggling with it, in identifying these issues. The extent of my injuries. But yeah, I had – I suffered a head injury and that concussive syndrome – post-concussive syndrome. Not too sure what that is. But my head’s – it feels like it’s rattling all the time. Whether the plaintiff suffered a head injury. I’ve got a scar on my chin here, and my face, my nose – broken nose. Yeah, I don’t know.”

Dr Todman (called by the plaintiff)

126. [126]
     Dr Todman in his reports referred to the plaintiff’s head injury and stated that there had been profound psychological distress and a diagnosis of bipolar disorder; the plaintiff also reported difficulties with concentration and short-term memory. 
127. [127]
     Dr Todman noted that it is possible that the plaintiff sustained a mild traumatic brain injury from a concussion in the accident. However, Dr Todman stated that it was difficult to separate the symptoms that may relate to the accident from his underlying psychiatric distress as well as his chronic pain and sleep disturbance. 
128. [128]
     Dr Todman’s report dated 11 June 2019 stated that, overall, a post-concussive syndrome or mild traumatic brain injury could not be completely excluded but the weight of evidence pointed more strongly to his psychological distress impacting memory and associated difficulties:

“The results from Ms Jackson were generally in accordance with my assessment.  I mentioned in page 4 of my report that it is possible he sustained a mild traumatic brain injury from a concussion in the accident but it is difficult to separate the symptoms that may relate to this underlying psychological distress as well as his chronic pain and sleep disturbance. Based on the further information from Ms Jackson I think that the latter factors, mainly the psychiatric distress with diagnosed Bipolar Disorder associated with his chronic pain and sleep deprivation, would account for the difficulties that he is experiencing with concentration and short-term memory.

As such impairment rating should be under the PIRS criteria rather than AMA5.  The Cervical spine injury is rated separately in my earlier report.”

129. [129]
     Dr Todman explained in his evidence at the trial that there may be two different elements to the plaintiff’s injury in his opinion; that there was a traumatic brain injury, but that this was difficult to separate from the psychiatric distress. 
130. [130]
     Dr Todman was of the view that the plaintiff sustained some concussion in the accident. He went on to say that a minor injury could “still lead to continuing or lingering effects of concussion, which makes the separation of psychiatric distress from a residual brain injury difficult in clinical practice”.  Dr Todman stated that a neuropsychology assessment is required to further define this.
131. [131]
     Dr Todman’s opinion was that the evidence on balance pointed towards psychological distress rather than a post-concussive syndrome.
132. [132]
     Dr Todman gave evidence that it is unlikely that the plaintiff would return to the previous high-level work in education he was previously undertaking. This conclusion was based on the physical symptoms reported from the accident, as well as the psychological distress and the reported cognitive symptoms which may be more likely related to psychological distress rather than a brain injury.
133. [133]
     Dr Todman clarified that it was for a psychiatrist to decide how much of the psychological distress was pre-existing and how much was triggered by the accident.
134. [134]
     He acknowledged that he does not directly have any expertise with respect to the diagnosis of bipolar disorder in his discipline of neurology as such diagnosis is in the discipline of psychiatry.

Professor Whiteford – psychiatrist (called by the plaintiff)

135. [135]
     Professor Whiteford is a psychiatrist who examined the plaintiff on 23 January 2019, provided two reports and gave evidence at the trial.
136. [136]
     Professor Whiteford’s report dated 30 January 2019 sets out his diagnosis of the plaintiff:

“1. Chadi Youssef meets the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM 5) diagnostic criteria for a persistent depressive disorder (dysthymia in DSM IV). There was no evidence of manic symptoms at the time I examined him. Mr Youssef also has cluster B personality traits (which would be long-standing), and it is likely there have been times when, under significant psychological stress, his thought content has included overvalued ideation and paranoid content.

In addition to his depressive disorder and personality traits, there are cognitive difficulties (both described by Mr Youssef and observed on examination). The cause of these is unclear. Determining the extent of any post-concussion syndrome arising from traumatic brain injury in the accident requires assessment by a neurologist and neuropsychologist. Cognitive deficits persisting for over two years from a traumatic brain injury in the accident is unexpected given there was no significant alteration in consciousness (e.g. when assessed by the paramedic at the scene of the accident) and the CT scan at the Royal Brisbane and Women’s Hospital was normal. However post-concussion syndrome in rare cases can persist and the cognitive deficits are much greater than expected from his depressive disorder.

Mr Youssef had anxiety and depressive symptoms that predated the accident. Specifically the records from the Walton Bridge Medical Centre confirm anxiety and depression as early as 2003 with the prescription of pharmacotherapy and recommendation he see a psychologist. Episodes of anxiety are also noted in 2007, 2009 and 2013 (when he was prescribed the anti-anxiety medication, diazepam, and referred to a psychologist under a General Practitioner Mental Health Care Plan).

Despite these pre-existing mental health problems, the history I have is that Mr Youssef was able to achieve highly at an academic level. He was also able, on self-report, to sustain remunerated employment whilst studying his various degrees. This would indicate that his functioning was at a high level despite his mental health problems, prior to the motor vehicle accident.

Since the motor vehicle accident there has been a marked deterioration in his mental health. This would be consistent with an aggravation of his pre-existing mental health problems, specifically the development of a persistent depressive disorder (with his depression prior to the accident episodic). There is also the potential contribution from a post-concussion syndrome, although the extent of this requires further assessment.

2. Mr Youssef’s prognosis in the short term is guarded (given he has not responded to psychiatric treatment since the accident). Determining the longer term prognosis needs clarification as to whether he has deficits from a traumatic brain injury sustained in the accident.”

137. [137]
     Professor Whiteford’s report dated 11 June 2019 stated that, in his opinion, it was most likely that there was a component of a chronic post-concussive state (mild neurocognitive disorder) contributing to the plaintiff’s clinical presentation:

“Having regard to the opinions of Dr Todman and Ms Jackson, it is most likely that there is a component of a chronic post concussive state (mild neurocognitive disorder) contributing to My [sic] Youssef’s clinical presentation, and this would help explain the higher level of cognitive impairment present on my assessment than expected from his depressive disorder alone.

In response to the specific question raised in your correspondent of 5 June 2019, I believe the cognitive difficulties present when I examined Mr Youssef arise from a combination of the mild traumatic brain injury and the significant aggravation of his depressive disorder.”

138. [138]
     Professor Whiteford gave evidence at the trial concurring with Dr Todman’s view that although a post-concussive syndrome or mild traumatic brain injury could not be completely excluded, the weight of evidence pointed more strongly to the plaintiff’s psychological distress impacting memory and associated difficulties.
139. [139]
     The plaintiff initially informed Professor Whiteford that he had no prior psychological difficulties. However, Professor Whiteford gave evidence that the plaintiff’s pre-existing records indicated that he had experienced and been treated for anxiety issues. 
140. [140]
     On Professor Whiteford’s analysis of the pre-existing material, the plaintiff had been diagnosed by other treating medical practitioners with bipolar disorder.
141. [141]
     When Professor Whiteford saw the plaintiff, the plaintiff had depression. Professor Whiteford did not observe the plaintiff to have an elevated mood. As it is necessary to view both depressed and elevated mood to diagnose a person with bipolar disorder, Professor Whiteford was unable to do so. However, he said that in the event the plaintiff did in fact have the elevated mood, a diagnosis of bipolar disorder would be appropriate.
142. [142]
     A diagnosis of depression, or of bipolar disorder, would fall under the umbrella of a mood disorder. Professor Whiteford ultimately stated that whether the diagnosis was bipolar disorder or depression would not make a difference to his ultimate conclusion.
143. [143]
     Professor’s Whiteford’s evidence was that the plaintiff had been subject to an inordinate number of stressors in his life over a longitudinal period of time, exclusive of the accident.
144. [144]
     Professor Whiteford’s evidence was that the following events the plaintiff allegedly experienced would, in his opinion, be “recurrent acute stressors … that would have made the bipolar disorder – if that’s what Mr Youssef has – more unstable”, including being:

     1. imprisoned in the United States of America for three and a half weeks;
     2. unable to leave the United States of America for two and a half years; and
     3. the subject of attempted assault on a number of occasions by his then partner.
145. [145]
     Professor Whiteford’s evidence was that there has been an escalation of stressors over time, and this could have a cumulative effect with respect to making a bipolar diagnosis more unstable. Professor Whiteford’s opinion is that the accident exacerbated the plaintiff’s mood disorder. In relation to how these stress events interact, Professor Whiteford said that:

“… each stress acts like another trauma to the person, and their mood becomes more unstable, and [then] it’s harder for the person, and even for their treating [indistinct] clinicians, to then stabilise the mood when that happens.”

146. [146]
     However, the cumulative stressors outside the accident were more significant in Professor Whiteford’s opinion.

Dr Lovell – forensic psychiatrist (called by the second defendant)

147. [147]
     Dr Lovell is a forensic psychiatrist who prepared two reports dated 26 July 2018 (the first report) and 7 December 2022 (the latest report) and he also gave evidence at the trial consistent with these reports.
148. [148]
     Notably, Dr Lovell examined the plaintiff twice; once on 16 July 2018 and subsequently on 28 November 2022. In relation to the plaintiff’s pleaded post-concussive syndrome, Dr Lovell was the only doctor, who gave evidence at the trial, who saw the plaintiff after he returned from Syria and also after he returned from the United States of America.
149. [149]
     Accordingly, I place weight upon Dr Lovell’s opinion as by seeing the plaintiff in 2018, and also in 2022, he provided an important longitudinal opportunity to assess the plaintiff over a substantial period of time.
150. [150]
     In the latest report, Dr Lovell set out the plaintiff’s residual complaints:

“Residual complaints related to the subject accident of 22 December 2016

He stated that he continues to experience sternal pain, left should pain radiating to his left ear and left trapezoid and scapular pain which radiates to the neck.  He takes paracetamol and Nurofen and occasional Panadol as well as medicinal cannabis and low dose quetiapine

He explained that he is irritable.  He in particular blames his father for signing the house over to George, his brother.  He considers that he may be slightly more forgetful of appointments and that he finds decision making difficult.

He attributed this problem with decision making to a Stockholm syndrome.  He stated that he was kept away from others in LeFlore County in a town called Poteau and his character was influenced.

He also described other highly unusual psychological symptoms.  He considers that he has to pick things out of the scar on his nose.  He believed that he is being surveilled at home.

He considered that the return of Isis brides to Australia had a connection with him returning into the country as a Syrian Christian.

He was uncertain whether his house was bugged.

He denied auditory hallucinations but stated in the past that he was concerned about his previous involvement with the counterterrorism unit and spoke of a helicopter flying over his house which he believed was Israeli.”

151. [151]
     Dr Lovell’s latest report also set out the following background information which incorporated a number of the stressors that the plaintiff had experienced:

“There was some deterioration in his mental state and on 20 March 2017 (error in the letter which dates 2016) he was assessed by Dr Lucas Murphy, Psychiatrist. He presented with self-referential ideas, was agitated, paranoid and was irritable in his mood. Dr Murphy identified the suicide of his brother in 2000 of the age of 19 and described another brother George being detained and treated for bipolar disorder. He noted that he had lost his licence to have a motor dealership in September 2016 and that in November 2016 he opened a Facebook paged which initially was to deal with his children because he was on his own and feeling very depressed and needed to connect to the world. His first article was published with a view to him obtaining university lectureship after obtaining his PhD in 2014 on 6 December 2016.

He was described as becoming increasingly distressed by family law matters. He was said to have a 6-year-old son to one woman and a 3-year-old son and an 18-month-old to a different partner but he had no contact with them and was very focussed on him being of Syrian origin. He considered that she was ignorant and considered him to be a terrorist. He spoke to Dr Murphy who quotes him as stating “the family law court platform has been invaded by Neo-terrorists. New forms of terrorism, deceit, hijacking, passive murder, attempting to conceal something”. The family law matter was noted to have been running since 2011. Dr Murphy made a diagnosis of a bipolar disorder, manic phase with psychosis. He gave a history of some self-referential delusions with counter-terrorism choppers over his house twice in the last week and believed that ASIO was in some way connected to his motor vehicle accident. He had lost around 10 kg in weight. There were no auditory delusions Dr Murphy strongly suggested presentation to a public hospital to seek inpatient care and made a recommendation that he should trial high dose quetiapine and a mood stabiliser such as valpronic acid.

Dr Youssef involuntarily detained at the Prince Charles Hospital on a treatment order from 18 April 2017 to 25 April 2017. There had been an argument with his father and he had threatened harm to both himself and his father.”

152. [152]
     Dr Lovell’s first report set out the relationship between the accident and the plaintiff’s diagnosis. He stated that the plaintiff likely suffers from bipolar disorder and notes that there were previous presentations for depressive symptoms in the past and his clinical presentation would be consistent with elevated and irritable or low mood:

“His many activities prior to the head injury suggest that he may well have suffered elevated mood and increased activity as he described working 15 hours a day or more in a variety of endeavours.

153. [153]
     Dr Lovell considered whether stressful life events play some role in bipolar disorder:

“Life Events Research has methodological difficulties although a number of studies suggest that stressful life events may play some role in bipolar disorder.

The evidence is stronger when there is a pre-existing bipolar disorder with life events implicated in triggering new mood episodes. (Journal of Affective Disorders volume 161, 1 June 2014 MA Koenders et al.)

There are difficulties in assessing whether the mood disorder had brought about the life event and affective symptoms would thus have occurred in any event. It would be helpful to interview his former partner to establish if this is the case.”

154. [154]
     In terms of stressors, Dr Lovell was not of the view that the accident was the major stressor. 
155. [155]
     Rather, in Dr Lovell’s view, the most significant stressor would appear to be the breakdown of the plaintiff’s relationship, the family law issues and the absence of contact with his children.
156. [156]
     Dr Lovell stated that the minor head injury may have caused some stress and transiently aggravated the plaintiff’s condition. Primarily, Dr Lovell stated that the plaintiff suffers from a constitutional disorder which has not been adequately treated to date with a mood stabilising agent.
157. [157]
     Dr Lovell noted that “organic affective disorders are described after serious head injuries”. However, in the plaintiff’s case, his head injury was minor with a brief loss of consciousness which does not explain the current clinical presentation.
158. [158]
     Dr Lovell was not of the view that the plaintiff currently fulfils the criteria for a post-concussive syndrome although he may have suffered this initially.
159. [159]
     Rather, Dr Lovell stated that the plaintiff suffers from a bipolar affective disorder and presents a history of mood fluctuation, irritability, expansive mood and disorganisation:

“He currently presents as suffering a mixed affective disorder. There were earlier periods when antidepressants were suggested by the GP. He presented to Dr Murphy in an agitated hypomanic state.

There are narcissistic traits on Axis II and very significant psychosocial stressors related to the de facto relationship ending and the loss of contact with the treatment. He alleges he was sexually assaulted in September by his de facto.”

160. [160]
     Dr Lovell noted that it is “highly likely that the separation from his three children from two separate partners and the domestic violence orders relate to the onset of his condition”.
161. [161]
     In this earlier report, Dr Lovell did not provide a psychiatric impairment rating scale (PIRS) rating for the plaintiff as he was not of the view that the accident brought about the bipolar disorder. Further, he stated that the plaintiff could not be rated on the PIRS as he had not yet received optimal treatment and the connection with affective disorder is tenuous. Dr Lovell stated that a post-concussive syndrome would not be rated under the PIRS.
162. [162]
     Dr Lovell’s latest report confirmed his opinion that the plaintiff “has a likely bipolar disorder with significant a cluster B personality disorder with narcissistic traits”.
163. [163]
     According to Dr Lovell, the plaintiff however has experienced multiple stressors with estrangement from his now four children, poor judgement and his experiences of being imprisoned, his credit cards being burned and his belief that he is a victim of Stockholm syndrome.
164. [164]
     In Dr Lovell’s opinion, the estrangement of the plaintiff from his three children from two separate partners and the domestic violence orders, and breaches, taken out against the plaintiff make a significant contribution to his distress and mood instability.
165. [165]
     Dr Lovell was of the view that the plaintiff had a pre-existing mental disorder:

“This may transiently have been aggravated but the accident effect has subsided and other more significant psychosocial stressors have now impacted such as the difficulties with the period of time in The United States.

I do not believe that he has significant cognitive impairment.”

166. [166]
     In relation to the effect of the mental disorder on the plaintiff’s employment, Dr Lovell’s opinion was that:

“The effect of the mental disorder on employment is largely a deterioration of a constitutional condition and personality difficulties.”

167. [167]
     At the hearing, Dr Lovell did not rule out that the plaintiff had bipolar disorder during his university studies as he noted that many people with bipolar disorder achieve great things, particularly when their mood is elevated. 
168. [168]
     When asked how he could be certain that the accident did not trigger or exacerbate the plaintiff’s mental health issues, Dr Lovell’s evidence was that:

“… I mean, certainly, a blow to the head can cause headache, dizziness and some difficulties with focus and concentration, but in the majority of cases, the symptoms settle of a relatively brief period of months. So I’m not of the view that that is currently relevant. With regard to dysthymia, that diagnosis cannot be made according to the DSM. There is a specific exclusion criteria that if there has been a diagnosis of a bipolar disorder or a major depressive disorder, that diagnosis cannot be made using the diagnostic manual. With regard to life events and their impact on bipolar disorder, there is some evidence in a pre-exiting bipolar disorder, that it may transiently worsen the disorder. If people have not suffered a bipolar disorder previously, it is highly unlikely that a blow to the head can cause a bipolar disorder.”

169. [169]
     By way of explanation as to why the plaintiff had not been diagnosed with bipolar disorder earlier in life, Dr Lovell stated that the plaintiff had seen general practitioners rather than psychiatrists, “and the general training of general practitioners is not to have a high level of awareness of bipolar disorder”.
170. [170]
     The plaintiff said that he had, in fact, seen a Dr Michael Theodoros, psychiatrist, for a “long period of time” in 2017. Dr Lovell’s response was that perhaps Dr Theodoros “was a little reticent to make a diagnosis of bipolar disorder because it does have significant implications in terms of people’s reactions to it, and it may be that he wanted a further episode to occur before he … was going to offer that diagnosis”.
171. [171]
     Dr Lovell gave this further evidence in support of a pre-accident diagnosis of bipolar disorder:

“… I mean, there are clear symptoms of depression previously and there is a family history in at least one first degree relative which increases the likelihood of the condition from the usual incidence of one per cent in the community to around 30 per cent, if there is one first degree relative who has bipolar disorder. Bipolar disorder frequently is initially diagnosed as a recurrent depression and it is only after a hypermanic episode occurs, for whatever reason – usually the constitutional nature and the longitudinal course of the condition – that the diagnosis can be made.”

172. [172]
     In Dr Lovell’s opinion, the plaintiff’s issues could not be explained by way of a post-concussive syndrome.
173. [173]
     Critically, when asked how he reconciled his opinion that the accident did not cause the plaintiff’s bipolar disorder with the fact that his symptoms worsened significantly following the accident, Dr Lovell replied that:

“… Well, there were significant other difficulties prior to the accident. Dr Youssef had closed his business; Dr Youssef was pursuing custody of the children; there were, as I stated, a number of charges that were brought about for breaking restraining orders and contravention of release conditions and domestic violence orders, and these played a very, very significant psychosocial role.

…

So, yes, the life events that were present. Largely, the longstanding difficulty is in obtaining access to the children, the concerns about the mothers of both children persecuting and attempting to lie and your concerns about wanting a lie detector test and the ongoing legal issues were, in my view, far more significant than a mild concussive injury as a result of the accident.

HER HONOUR: What about the other physical consequences that he suffered?---Well, the physical consequences of shoulder pain and the period of post concussive symptoms usually abate over time. And, yes, there may be some reactive adjustment symptoms – adjustment to injury symptoms, but, generally, they’re not going to trigger or significantly aggravate a bipolar disorder.”

174. [174]
     Later on in his evidence, Dr Lovell stated that:

“…Well, I think – look, I think there is fairly clear evidence that there were very, very significant stressors present prior to the road traffic accident. He had closed down his car business. There were ongoing court issues. There were legal issues related to breaking the restraining order. There were beliefs that the two women with whom he had children were acting together and trying to besmirch his reputation and stop him seeing his children, and that is a very, very, very powerful stressor, and it is an enduring stressor, and the stressors are continuing after the relationship in the United States and the difficulties that were encountered there in terms of accessing Jose, the youngest 18 month child. So I think that those psychosocial stressors are far more powerful in the aggravation of a bipolar disorder than a minor road traffic accident, without loss of consciousness and with some musculoskeletal shoulder and neck pain and a brief-lived post-concussive syndrome.”

175. [175]
     In relation to whether the plaintiff suffered post-traumatic stress disorder (PTSD) from the accident, Dr Lovell stated that PTSD implies a severe accident or threat to life; a category A stressor. In Dr Lovell’s opinion:

“… Most people in a road traffic accident do not experience a post-traumatic stress disorder unless they have been trapped in the car, the car is on fire, they’re trapped next to a dead sibling, there is a belief – a strong belief that the car’s going to catch fire and they can’t get out. And usually that is accompanied by nightmares and flashbacks, and I was not able to obtain any history of those.”

176. [176]
     In conclusion, Dr Lovell’s evidence was that the plaintiff experiences symptoms explicable by a pre-existing mental disorder. While the accident may have transiently aggravated these symptoms, far more serious and longstanding psychosocial stressors are to blame for the plaintiff’s condition rather than any enduring effects of the accident. Nor are the symptoms explicable by PTSD or a post-concussive syndrome.

Causation

177. [177]
     The onus lies on the plaintiff to prove the damages claimed in the statement of claim as stipulated through the statutory structure of the Civil Liability Act 2003 (Qld) (the CLA). 
178. [178]
     Section 11 of the CLA sets out the general principles of causation:

“11 General principles

(1)A decision that a breach of duty caused particular harm comprises the following elements—

1. the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

2. it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

2. In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

3. If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

1. the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

2. any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

4. For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.”

179. [179]
     In deciding liability for breach of duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.^[8]
180. [180]
     In relation to the issue of causation, Kiefel J (as her Honour then was) in Tabet v Gett^[9] stated:

“[111]The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. “More probable” means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.

[112] The “but for” test is regarded as having an important role in the resolution of the issue of causation, although more as a negative criterion than as a comprehensive test. The resolution of the question of causation has been said to involve the common sense idea of one matter being the cause of another. But it is also necessary to understand the purpose for making an inquiry about causation and that may require value judgments and policy choices.

[113] Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain. The purpose of proof at law, unlike science or philosophy, is to apportion legal responsibility…”

(Citations omitted).

181. [181]
     A question for this case is whether or not the negligence caused a material contribution to the development of the plaintiff’s current condition that the court is assessing damages upon. The second defendant does not accept that the plaintiff suffered a post-concussive syndrome.
182. [182]
     I note that during the trial, the expert witnesses gave evidence that that accident caused the plaintiff to suffer an exacerbation of his pre-existing mental condition. Whilst this injury was not pleaded by the plaintiff, the second defendant did not take the pleading point. 
183. [183]
     Ultimately the second defendant accepts that, for a period of time, the plaintiff suffered an exacerbation of his pre-existing condition:

“MR O'DRISCOLL: Your Honour, we accept that there was some psychological effect upon him for a period of time. How long is unknown. And to what extent it may have affected his employment amongst the other aspects of his life again is unknown.”

184. [184]
     The plaintiff submits that he sustained injuries in the accident which resulted in both cognitive deficits and psychological distress, which have been persistent and debilitating. The plaintiff states that the reports from Dr Whiteford highlight a significant post-accident decline in mental health. He says this is in stark contrast to his previous high level of functioning, including the achievement of a PhD and academic position at Queensland University of Technology. 
185. [185]
     The plaintiff submits that any argument that his psychological condition was not significantly impacted by the accident overlooks the well-documented phenomena of accident-induced psychological trauma. The plaintiff states that the medical reports from Dr Todman and Dr Labrom indicate an exacerbation of symptoms post-accident, which is consistent with the onset of post-traumatic stress, often delayed and progressively debilitating.
186. [186]
     The plaintiff states that whilst he did encounter stressors before the accident, it was the accident’s psychological aftermath that has precipitated a severe decline in his condition. To suggest otherwise, the plaintiff states, underestimates the cumulative effect of trauma and the potential for a single event to magnify pre-existing vulnerabilities to a breaking point. He states that his pre-existing conditions were under control and did not impede his professional achievements up to the accident. Then, he states, the accident occurred which significantly worsened his condition.  
187. [187]
     Further, he states that the accident inflicted profound psychological trauma and stress, leading to behaviours uncharacteristic of his previous conduct and resulting in legal entanglements.
188. [188]
     The plaintiff stated in his evidence that his ambitions and prospects regarding employment were significantly altered as a result of his head injury, thus compelling him to venture to Syria. 
189. [189]
     In relation to the issue of causation, the plaintiff submits the following:

“It is the plaintiff's position that factual causation and the scope of liability are satisfied in this case. The accident was a necessary condition for the occurrence of the harm suffered, and it is appropriate for the scope of the second defendant's liability to extend to this harm. The ongoing treatment, the evidence of cognitive impairment, and the profound alteration in life trajectory post-accident are indicative of the significant impact the accident has had on the plaintiff’s life.

In conclusion, this submission respectfully requests that the court consider the totality of the evidence presented, which illustrates a clear causal link between the accident and the plaintiff's current condition. The plaintiff's economic losses, both past and future, reflect a career that was unjustly interrupted and a life that has been irrevocably altered. It is only just and equitable for the court to recognize the full extent of the plaintiff's losses and award damages accordingly.”

190. [190]
     The plaintiff has been subject to a number of stressors since the accident, including his: 

     1. time in Syria in 2017;
     2. time in the United States of America (including imprisonment) from 6 March 2020 to August 2022;
     3. relationship difficulties and Federal Circuit and Family Court proceedings; and
     4. breaches of domestic violence orders culminating in serving actual imprisonment in 2019.
191. [191]
     These matters are causally independent from whatever stressors were operating upon the plaintiff from the accident. 
192. [192]
     McMeekin J in Love v North Goonyella Coal Mines Pty Ltd^[10] referred to the principles, as set out by Professor Luntz, concerning the impact of subsequent casually independent events:

“The impact of subsequent causally independent events 

…

[127] North Goonyella submits that the principles that apply are those summarised by Professor Luntz in his well-known text concerning the impact of subsequent causally independent events:

“The relevant rules where a plaintiff sustains further injury in a distinct subsequent accident have been conveniently restated as follows:

1. where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;

2. where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and

3. where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”

193. [193]
     In relation to the third category, the plaintiff bears the onus of showing that the damage sustained from any subsequent event came about, or is greater, because of aggravation of the earlier injury.^[11]
194. [194]
     In this case, the plaintiff has not discharged that onus in relation to his mental disorder.  
195. [195]
     I am not satisfied that the plaintiff’s mental disorder has been caused by post-concussive syndrome.  The medical evidence does not support such a conclusion.
196. [196]
     I note that whilst a post-concussive syndrome, or mild traumatic brain injury, cannot be completely excluded, the weight of evidence points more strongly to his psychological distress impacting memory and associated difficulties.
197. [197]
     As I have set out, Dr Lovell was not of the view that the plaintiff currently fulfilled the criteria for a post-concussive syndrome, although he may have suffered this initially.
198. [198]
     Dr Todman’s opinion was that the evidence, on balance, pointed towards psychological distress rather than a post-concussive syndrome.
199. [199]
     In my view, the plaintiff suffers from a mood disorder, whether that be bipolar or depression is immaterial. I accept the medical evidence that he has suffered from this mental disorder for some time predating the accident. 
200. [200]
     I accept Dr Lovell’s evidence that whilst the accident may have transiently aggravated these symptoms, the far more serious and longstanding psychosocial stressors are to blame for the plaintiff’s condition rather than any enduring effects of the accident.
201. [201]
     In his evidence, Dr Lovell explained how the accident played no role with respect to the plaintiff’s current condition:

“The other issue I was wanting to clarify – her Honour asked you a question as to whether or not the accident could have aggravated a pre-existing condition. With respect to bipolar, if a person is subject to stressors and continues to be subject to stressors, does it cause a continuation or a deterioration in the condition?---No, usually what we see is the natural history of the condition if a stressor occurs and then abates. I mean, I think the difficulty has been, in many ways, the longstanding stressors associated with access to the children and the difficulties associated with the legal system, and I think that is ongoing, and that does cause some mood instability and may aggravate the condition in the longer term. But the accident, as we said, now is six and a-half years ago, and I think what we’ve seen currently are the sort of contemporaneous symptoms of longstanding psychosocial stressors regarding previous relationships and the access to family.

And just further, another point off her Honour. Did the whatever occurred in the motor vehicle accident make him more vulnerable to the issues and the stressors you spoke about in the United States, where he was in another relationship, charged with offences and imprisoned for over a year?---No, I do not believe that that – that the accident had any bearing on that. I mean, I think what we’re looking at are issues of personality and the cluster B symptoms that lots of doctors have referred to and which Prince Charles Hospital refers to and which Leanne Jackson refers to. If people have a mixture of personality traits that might be narcissistic or borderline or histrionic or in that realm, then frequently they tend to repeat the past, and the thing that we're seeing is relationships breaking down in hostile circumstances with the loss of access to the children, and that has happened serially on three occasions. There was a broken relationship related to not having children with a woman who suffered from endometriosis, but I think what you’re seeing are the effects of personality style and, intermittently, some symptoms of mania and depression that relate very much to these longstanding psychosocial stressors, rather than any enduring effect of the road traffic accident.”

202. [202]
     The plaintiff called Professor Whiteford and, in his submissions, set out the ramifications of Professor Whiteford’s findings:

“Of particular note is the statement from Professor Harvey Whiteford, dated January 30, 2019. Professor Whiteford, a respected authority in psychiatric assessment, unequivocally determined that as of his examination, Mr. Youssef was incapable of undertaking any form of remunerated employment. This expert opinion crystallizes the grave consequences of the accident, not only on Mr. Youssef’s health but also on his ability to engage in any gainful employment – a capacity that remains the cornerstone of one’s economic independence and societal contribution.

The ramifications of Professor Whiteford’s findings are twofold. Firstly, it substantiates the claim for past economic losses. The inability to work post-accident translates directly into lost wages, lost opportunities, and a tangible decline in the quality of life. This submission posits that the court should award damages that capture the entirety of these past economic losses.

Secondly, Professor Whiteford’s professional opinion bears heavily on the projection of future economic losses. Given that Mr. Youssef’s capacity for employment was nullified at the time of examination, it is reasonable to assume – absent significant medical improvement – that his prospects for future employment in his chosen and highly specialized field of academia remain bleak. This underscores the necessity for a future economic loss calculation that extends to Mr. Youssef's expected retirement age, ensuring that the damages awarded reflect the enduring nature of his injuries.”

203. [203]
     Professor Whiteford stated that the accident aggravated the plaintiff’s pre-existing mood disorder. Ultimately, he stated that the accident was one stressor amongst many and its contribution at the time was significant. However, that contribution lessened over time and has been replaced by multiple other stressors which, in aggregate, have been much more significant and caused a severe deterioration in the plaintiff’s condition.
204. [204]
     Professor Whiteford explained in his evidence, the more proximal stressors are the ones that are maintaining the severity of the plaintiff’s mental health issues:

“MR O'DRISCOLL: Professor, it’s Gerard O'Driscoll again. In relation to questions of causation, if we strip away the motor vehicle accident, bearing in mind the history that you spoke about and the escalation in the severity and the escalation in the frequency of the stressors, the underlying condition would have manifested itself even if the motor vehicle accident had not occurred – that is, whatever contribution the motor vehicle accident made to the overall picture. Are you able to comment upon that?---Yes. I can comment on that. So I would say two things about the accident. One is the stressor of the actual accident occurred at the time the accident occurs. And as – the further you get away from the actual accident, the stressor remits, usually, unless the person is left with a ongoing severe disability arising from the accident or injuries which caused ongoing stress for them. So I’d separate those two components of the accident. And the general trend after an accident is that people recover. However, if in – and, in this case, multiple other stressors occur – some of them appear, objectively, as a clinician, to be more severe than the accident – then the contribution they make is much greater than the contribution the accident made at the time and, certainly, may be making later on.

And so – and does that lead into what I said that the frequency and severity of the stressors, as they increased in the longitudinal sense, would have caused a very significant deterioration regardless of the accident and have taken over whatever stressor - - -?---If the accident – yes. Yes. The accident was one stressor amongst many. Its – its contribution at the time that it occurred was significant. That contribution lessened over time and was – be re – was replaced by multiple other stressors which, in aggregate, have been much more significant, from what I’ve read, and have con – caused a severe deterioration in Mr Youssef’s condition.

And for her Honour assessing it now, the accident doesn’t feature as a causal contribution to the current condition, does it?---Well, I heard Mr Youssef talk about his scars and other memories that cause him to recall and recount the – the accident. So to say that it’s not playing any role, I think, would be an understatement. I think it’s one of the contributing factors, but I don’t think it’s the major factor. And the – the – the – the stressors which are more proximal and described in the affidavit are ones that are maintaining the severity of his problems now.”

205. [205]
     In accordance with the medical evidence, I find that there is no causal contribution to the plaintiff’s current mental condition relating back in a compensable way for his assessment of damages by this court.

The assessment of damages

206. [206]
     The assessment of damages proceeds by reference to the statutory provisions as set out in the CLA.   

General damages

207. [207]
     Section 51 of the CLA provides:

“general damages means damages for—

1. pain and suffering; or

2. loss of amenities of life; or

3. loss of expectation of life; or

4. disfigurement.

injury means personal injury.”

208. [208]
     Section 61 of the CLA sets out the way general damages are assessed in accordance with an injury scale value (ISV):

“(1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows—

1. the injured person’s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100;

2. the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;

3. in assessing the injury scale value, the court must—

1. assess the injury scale value under any rules provided under a regulation; and

2. have regard to the injury scale values given to similar injuries in previous proceedings…”

209. [209]
     Section 62(1) of the CLA provides:

“(1) For an injury arising after 1 December 2002, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury arose…”

210. [210]
     On the plaintiff’s pleaded case as set out in paragraph 10(a) of the statement of claim, he claims for a dominant injury being his psychiatric injury assessed within Item 11 – Serious mental disorder and ascribed an ISV of 13, which, on account of the multiple injuries suffered by the Plaintiff, will be increased to the top of Item 11 and be ascribed an ISV of 40.
211. [211]
     However, in my view, the psychiatric injury is not the dominant injury suffered by the plaintiff.
212. [212]
     The plaintiff suffers from a mood disorder, whether that be bipolar disorder or depression is immaterial. The question is whether the accident contributed to his decline in mental health. 
213. [213]
     As I have set out, Dr Lovell stated that the accident transiently aggravated the plaintiff’s pre-existing mental disorder.  However, Dr Lovell stated that the accident effect has subsided, and other subsequent more significant psychosocial stressors have now impacted the plaintiff. 
214. [214]
     Professor Whiteford stated that the accident was one stressor amongst many and would have caused contributions to the plaintiff’s mental health issues at the time. However, Professor Whiteford acknowledged that this contribution lessened over time and was replaced by multiple other stressors which, in aggregate, would have been much more significant and caused a severe deterioration in the plaintiff’s condition.
215. [215]
     Professor Whiteford concluded by stating that it would be an understatement to say that the accident did not play any role as it was one of the contributing factors. However, Professor Whiteford stated that it was not the major factor. Rather, it is the more recent stressors which are maintaining the severity of the plaintiff’s present problems.
216. [216]
     It is clear that as a result of the accident, for a period of time, there was some psychological effect upon the plaintiff’s pre-existing condition until other stressors took over. The second defendant accepts this position. Accordingly, regulations 5 to 7 of Schedule 3, Part 2, Division 1 of the Civil Liability Regulation 2014 (Qld) (the CLR) need to be considered:

“5 Adverse psychological reaction

1. This section applies if a court is assessing an ISV where an injured person has an adverse psychological reaction to a physical injury.

2. The court must treat the adverse psychological reaction merely as a feature of the injury.

6 Mental disorder

1. This section applies if—

1. a court is assessing an ISV; and

2. a PIRS rating for a mental disorder of an injured person is relevant under schedule 4.

2. The PIRS rating for the mental disorder of the injured person is the PIRS rating accepted by the court.

3. A PIRS rating is capable of being accepted by the court only if it is—

1. assessed by a medical expert as required under schedules 5 and 6; and

2. provided to the court in a PIRS report as required under schedule 5, section 12.

7 Aggravation of pre-existing condition

1. This section applies if an injured person has a pre-existing condition that is aggravated by an injury for which a court is assessing an ISV.

2. In considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been made worse by the injury.

217. [217]
     In this case, as I have set out, the plaintiff does not presently suffer from post-concussive syndrome and his present mental condition has not been caused by the accident.
218. [218]
     However, I am satisfied that the plaintiff suffered, for a period of time after the accident, an exacerbation to his pre-existing mood condition.
219. [219]
     There has been no PIRS assessment undertaken in relation to the exacerbation of the plaintiff’s pre-existing mood condition. However, assessments have been undertaken in relation to the cervical spine injury and in my view, this injury is the dominant injury.
220. [220]
     Dr Todman, neurologist, gave a 12% whole of person impairment, whilst Dr Labrom, orthopaedic surgeon gave 10% whole of person impairment and Dr Dickinson, orthopaedic surgeon, a 0% whole of person impairment.
221. [221]
     The second defendant accepts, taking into account the opinions expressed by Dr Dickinson and Dr Labrom, that an ISV of 10 is appropriate. This takes into account the multiple injuries suffered by the plaintiff as set out by regulation 3 of Schedule 3 of CLR:

“3  Multiple injuries

1. Subject to section 4, in assessing the ISV for multiple injuries, a court must consider the range of ISVs for the dominant injury of the multiple injuries.

2. To reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.”

222. [222]
     The second defendant has approached this matter by accepting that the plaintiff should be awarded damages at the top of the range provided by Dr Labrom (10%) and Dr Dickinson (0%) to take into account the multiple injuries suffered by the plaintiff.
223. [223]
     However, this seemingly ignores Dr Todman who states in his 24 April 2019 report that:

“The cervical spine injury is from AMA 5, Table 15.5 and is a DRE Category 3 injury, which is between 10-13% whole person impairment. I would estimate a 12% whole person impairment from the injury.”

224. [224]
     Pursuant to Table 7 of Schedule 7 of the CLR, the amount for an ISV of 12 is $19,770.
225. [225]
     In my view, taking into account all of the plaintiff’s multiple injuries, an ISV of 12 is inadequate to reflect the level of adverse impact of these injuries on the plaintiff. Accordingly, there should be an uplift in accordance with Schedule 3, Part 2, regulation 4 of the CLR:

“4  Multiple injuries and maximum dominant ISV inadequate

1. This section applies if a court considers the level of adverse impact of multiple injuries on an injured person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact.

2. To reflect the level of impact, the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.

3. However, the ISV for the multiple injuries—

1. must not be more than 100; and

Note—

Under section 61(1)(a) of the Act, an ISV is assessed on ascale running from 0 to 100.

2. should rarely be more than 25% higher than the maximum dominant ISV.

4. If the increase is more than 25% of the maximum dominant ISV, the court must give detailed written reasons for the increase.

5. In this section—

maximum dominant ISV, in relation to multiple injuries, means the maximum ISV in the range for the dominant injury of the multiple injuries.”

226. [226]
     In my view, there should be a 25% uplift to reflect the level of adverse impact caused by the plaintiff’s multiple injuries, including his cervical spine injury, his facial injuries and the aggravation of his mental health issues.
227. [227]
     In relation to his facial injuries, the plaintiff fractured his nose and suffered a laceration to his chin. I note that Dr Lovell recorded in his latest report that the plaintiff was distressed by the unsightly scar on his nose and he subsequently underwent a scar revision performed by Dr Theile. 
228. [228]
     I accept that, for a period of time, the accident exacerbated the plaintiff’s pre-existing mental condition. I note that the plaintiff was admitted as an involuntary patient at the Prince Charles Hospital in April 2017 where he was prescribed antipsychotic medication.
229. [229]
     As Professor Whiteford stated, the accident was one stressor amongst many and its contribution at the time was significant. However, that contribution lessened over time and has been replaced by multiple other stressors not related to the accident.
230. [230]
     The facial injuries and the aggravation of the plaintiff’s mental health issues each by themselves had a detrimental effect on the plaintiff. However, the cumulative effect of these injuries justifies a 25% uplift from the maximum. 
231. [231]
     A 25% uplift of an ISV of 12 results in an ISV of 15.
232. [232]
     Pursuant to Table 7 of Schedule 7 of the CLR an ISV of 15 is $25,800.
233. [233]
     Accordingly, general damages should be awarded at $25,800.

Past economic loss

234. [234]
     The plaintiff’s statement of claim sets out the past economic loss as:

“10.(c)for past economic loss the sum of $139,286.00 being the ongoing loss of $1,000.00 net per week for a period of 139.286 weeks since 23 January 2017 to current date.  The plaintiff has lost this income as a result of his:

1. inability to obtain and maintain employment as a lecturer at a secondary learning institute or university as a result of the injuries and psychiatric sequelae and the impediment which they have on the plaintiff’s working capacity;

2. inability to exercise his earning capacity using his multiple degrees including a Bachelor of Education majoring in psychology, a Graduate Diploma of Psychology, a Masters of Theology and a PhD in Education due to the injuries and psychiatric sequelae;

3. likely earnings as a teacher or lecturer at a learning institute but for the injuries received in the accident…”

235. [235]
     Economic loss is set out at s 54 of the CLA as follows:

“54  Damages for loss of earnings

1. In making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2).

2. The limit is an amount equal to the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings…” 

236. [236]
     Further, s 55 of the CLA provides:

“55 When earnings can not be precisely calculated

1. This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.

2. The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.

3. If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award…”

237. [237]
     The plaintiff submits that his economic loss should be calculated based on the income he could reasonably have expected to earn had the accident not occurred. He states:

“The potential earnings in his emerging academic career, given his qualifications and trajectory at the time of the accident, exceed the taxable income reflected in prior years, which were not indicative of his post-PhD earning capacity.”

238. [238]
     The plaintiff states that the loss he suffered encompasses both established and prospective earnings, substantially exceeding the taxable income from previous tax records. The plaintiff’s assessment of past (and future) economic loss is based on an annual salary of $120,000; a figure he says is justified by his academic achievements and the quality of his publication.
239. [239]
     In relation to assessing loss, in Graham v Baker,^[12] Dixon CJ, Kitto and Taylor JJ noted:

“... an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.”^[13]

240. [240]
     That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:^[14]

“A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied.  The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury.  The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute ahead [sic] of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life.  It is that ‘the diminution of ... earning capacity is or may be productive of financial loss.’”

241. [241]
     In Nichols v Curtis,^[15] Fraser JA observed, in relation to a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:

“[13]  The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that that [sic] she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.

[14]  Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity had been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.”

(Citations omitted.)

242. [242]
     Damages for economic loss are to be awarded for loss of earning capacity. The plaintiff has to prove, on the balance of probabilities, that his earning capacity has been diminished because of the injuries he suffered.^[16] 
243. [243]
     Sutton v Hunter & Anor^[17] sets out the approach to be taken with respect to the calculation of economic loss and assessment of general damages as follows:

“[111] In Paul v Rendell (1981) 34 ALR 569 at 571 (Paul), Lord  Diplock said:

“The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.”

[112] As explained by Deane, Gaudron and McHugh JJ in Malec v JC Hutton Pty Ltd (No 2) (1990) 169 CLR 638 at 643; 92 ALR 545 at 548 (Malec) in reaching a view as to hypothetical future events, a court is required to assess the degree of probability that an event might occur or might have occurred and adjust the award of damages to reflect the degree of probability.

[113] Where the court is required to engage in the double art of prophesying and adjust damages depending upon the degree of probability that an event might or might not occur or have occurred, both the prophecy and the probability adjustment are based on the evidence as accepted by the Court. As the primary judge observed at [57], the assessment is relatively easy for a plaintiff who is a stable wage-earner over many years and has suffered a total loss of work capacity or even a partial loss of work capacity. The assessment of loss for those persons who suffer business losses is notoriously far more difficult. Similarly, where a person, who has not been in receipt of remuneration from employment or business activities for a period of a decade is injured, the art of prophesying and probability adjustment is difficult. In such circumstances, a trial judge ought to be afforded considerable leeway in the trial judge’s determination of that prophecy of hypothetical future events and probability adjustment.”

(Citation omitted).

244. [244]
     At the time of the accident, the plaintiff had six university degrees including his doctorate which he gained in 2014. Two weeks prior to the accident he got his thesis published by the University of Wisconsin, which, the plaintiff submits, is the necessary step in finding employment teaching at a university.
245. [245]
     At this point in time the plaintiff had big plans as to his future:

“I would have been an established academic lecturer in the school of education, running a successful educational consultancy business and considering launching a registered training organisation as a CEO.” 

246. [246]
     However, he stated in his evidence that due to this accident he has lost seven years of work:

“I’ve lost seven years of work. I’m not able to enter – enter back into academia either, which is tragic for me spending 14 years – four years at QUT completing completing a PhD in record time. That’s what the reports say. I finished confirmation within four months of my PhD. Four months, I finished confirmation. Most people take one year to finish confirmation. So I was on a mission to conduct philo – to do research. I mean, I – I don’t – the topic’s gone out of my head. I can’t remember the topic much, but I – my – the worst part is I get depressed because every day when I look on the internet, I see my work is still being cited every – every year by academics around the world, so my work – my published paper, I’m – from the 8th of December twenty – 2016, I published my paper from my thesis two years earlier in 2014. My paper was published 2016, 8 December, published at the University of Viterbo, Wisconsin and that paper took me two years to sub – two years to publish – to prepare in order to become a lecturer. So this is all evidence. I have all this evidence here, you know, with emails from my university prof – so that’s – that’s – you know, it’s traumatised me. Seven years away from this field and work, not being able to contribute in any way, yet seeing my own work still being cited and not having – it’s – it’s – I don’t know how to deal with that – face that. Yeah [indistinct] number 10. The future economic loss. So the – what happened to my abilities before the accident was committed 15 hours a day to research – doing a lot of work – but now I can’t – I – that’s all gone. I can’t do it any more. I don’t know. I don’t even know if I can enter academia again in the future. Future economic loss. So I was expecting to be paid about $120,000 a year beginning 2017.”

247. [247]
     The plaintiff submits that the injuries sustained, and the consequent medical assessments by Dr Labrom and Dr Todman suggest, a significant and ongoing impact on his ability to perform the duties required of an academic professional. This, he submits, aligns with the nature of his work, which demands a high level of cognitive functioning, focus, and physical capability for research, teaching, and publication activities.
248. [248]
     The plaintiff submits that academic positions, especially those contingent upon recent publications and scholarly contributions, often materialise in a non-linear fashion. He states that the accident’s timing effectively stripped him of the opportunity to capitalise on his academic standing.  In his written submissions he states that:

“The academic world operates within cycles of hiring, often not publicly disclosed until contracts are finalized. Dr. Youssef's impending employment was disrupted by the accident, an assertion supported by the timing of his published work and the academic calendar.”

249. [249]
     There is evidence that the plaintiff had done doing teaching work with the Department of Education, Training and Employment. However, the court cannot act in an evidentiary vacuum to assume that this would have correlated to him being employed by some university as a lecturer.
250. [250]
     There is no evidence that the publishing of the paper by the University of Wisconsin would have then meant that there was a real job with real income for the plaintiff to embrace. The plaintiff at one time stated that he had an offer of employment to teach at universities:

“I applied at University of Princeton, Harvard, schools in Malaysia and Australia and – and I already had a job lined up at QUT with my professor. Her name was Dr – Professor Marilyn Campbell. She was my PhD supervisor from 2010 to 2014 and I had a job lined up. I had hope of many positions coming for me.”

251. [251]
     However, ultimately the plaintiff accepted that he did not receive any written offer of employment:

“Well, how many universities in Australia offered you employment?---Any university. I could have taught in any university I wanted to.

I know you could have taught. So what universities in Queensland gave you a written offer of employment?---I didn’t receive a written offer of employment.” 

252. [252]
     The plaintiff contends essentially for a loss of the chance, but there is no evidence as to the extent to which that chance existed, or whether or not as a result of causally independent factors he truly would have been employable. 
253. [253]
     There is certainly no evidence of any offer of a job at a university or as a teacher that the plaintiff could not take up due to his injuries. Neither is there any evidence of what an academic may earn.
254. [254]
     In this case, the plaintiff’s historical earnings provide no guidance as to what he might have done, what he was capable of doing, or what opportunity has been lost to him. 
255. [255]
     The plaintiff states that his teacher registration withdrawal and the inability to resume his career in teaching are directly tied to the psychological impact of the accident, which compromised his ability to address these challenges effectively. He states that the withdrawal of his teaching registration post-accident is a direct consequence of the exacerbated psychological state following the accident. This cascading effect, he states, has unfairly derailed his career, an outcome that would not have occurred but for the accident.
256. [256]
     However, the evidence does not support these submissions linking the loss of his teaching registration to the accident.  
257. [257]
     In December 2017, his teacher’s registration was not renewed. The plaintiff states this was due to the accident. However, it was not. It was due to his criminal history which began in 2012 which the Suitability Committee characterised as regular and ongoing.  The majority of the plaintiff’s offending considered by the Suitability Committee pre-dated the accident.
258. [258]
     Since the accident, the plaintiff has not earned any income. 
259. [259]
     In the three years prior to the accident, the plaintiff did very little teaching. The plaintiff states he has been casual teaching since 2007 and he rejected offers of full-time employment because it paid less than a casual teaching position and it did not give him the flexibility he required for further study. 
260. [260]
     The other income the plaintiff was earning seems to have been from buying damaged motor vehicles, repairing them at his father’s property and on-selling them. At the time of the accident, the plaintiff did not renew his car business licence and states that, prior to his paper being published, he was moving away from the car business and preparing himself for academia. 
261. [261]
     The second defendant states that the plaintiff’s pre-existing psychological difficulties, the difficulties with his pre-existing criminal history and the disregard to orders placed upon him by the court system would have mitigated against him being an attractive candidate for some tertiary institution or university to be a lecturer.  I accept this.
262. [262]
     I accept that there is no evidence, in accordance with the statutory structure of the CLA, that there was an opportunity for the plaintiff to be a lecturer that has been lost to him solely because of the injuries sustained in the motor vehicle accident. 
263. [263]
     The highest the evidence comes to is that he started with employment with the Department of Education, Training and Employment on 22 January 2007 and he last worked on 3 June 2016. 
264. [264]
     The only significant income seems to have been from a used car business he was running or perhaps a bursary. 
265. [265]
     The second defendant submits there was in fact no lecturing job for the plaintiff to go to. However, the second defendant accepts that some small global assessment is appropriate to be set at $20,000.
266. [266]
     The second defendant acknowledged that such a sum was difficult to quantify. In essence, it was calculated by using the plaintiff’s highest taxable income recorded from the three years prior to the accident which was $657.93 per week (net). This was then multiplied to take into account the amount of time from the date of the accident to July 2017 which was when the plaintiff went to Syria. The second defendant states that this is when other stressors took over the plaintiff’s mental state.
267. [267]
     There is evidence in relation to the lacerations to the plaintiff’s nose and face and the soft tissue injury to his cervical spine and to a lesser extent his shoulder.
268. [268]
     Dr Todman, further, within his report of 24 April 2019 remarked that “any return to the workplace would be dependent on improvement in all symptoms both his chronic pain as well as psychological distress with appropriate treatment”.
269. [269]
     Dr Labrom confirmed that the plaintiff would be able to work as an academic educational professional though there may be some impact if his pain is not managed better.
270. [270]
     Dr Dickinson stated the injury to the plaintiff’s cervical spine and shoulder were temporary and would have resolved over time.
271. [271]
     In relation to past economic loss (and indeed future economic loss), Dr Dickinson’s opinion is preferred over Dr Labrom and Dr Todman and the evidence from the plaintiff generally.
272. [272]
     Dr Dickinson had the benefit of examining the plaintiff on two occasions with the most recent examination occurring on 25 January 2023. Dr Labrom and Dr Todman each only examined the plaintiff on one occasion, some time ago in 2018 and 2019, respectively.
273. [273]
     Dr Dickinson set out the results of his examination of the plaintiff on 25 January 2023 in his recent report and concluded by stating that there was no physical finding related to the injury.
274. [274]
     This is the most up to date examination of the plaintiff and I place significant weight upon these findings.
275. [275]
     The evidence during cross examination of both Dr Labrom and Dr Todman confirmed difficulties with the osteophyte and degenerative conditions with respect to the plaintiff’s cervical spine. Further, I note that both of these doctors did not take into account a subsequent motor vehicle accident which occurred on 13 September 2022 where the plaintiff sustained a whiplash injury to his cervical spine.
276. [276]
     Dr Dickinson’s findings within his report confirmed that radiology demonstrated degenerative changes at the C5-6 level which were described as “the likely cause of current left sided, neck, shoulder and upper limb pain.”
277. [277]
     I prefer Dr Dickinson’s opinion as to the relationship between the accident and the plaintiff’s symptoms. In my view, his reasons as set out in his report are persuasive:

“I do not agree with Dr Labrom’s opinion of a DRE Category III impairment of the cervical spine.

The changes on the cervical spine are degenerative change at C5-6. The radicular symptoms that Mr Youssef had described included pain in the C6 dermatome which is not how he presented to me. Dr Labrom also found wasting in the left biceps which he considered more than related to non-dominance.

He also commented on the “inexplicable C8 radiculopathy”. I note on my assessment that Mr Youssef had normal deep tendon reflexes in the upper limbs where the expectation would be that if C6 were involved then the deep tendon reflex would be reduced at the left elbow.

Dr Todman also found a reduced deep tendon reflex at the left sided biceps tendon.

However, such changes are related to the chronic degenerative change and are not related to the effects of injury. As well, Dr Todman noted the inconsistent finding in relation to the left little finger. Mr Youssef in his discussion with me related the left little finger and left little toe symptoms and which are not associated clinical entities.

Of important is the fact that the contemporaneous records did not reflect an injury to the cervical spine.”

278. [278]
     I place great weight upon the fact that the contemporaneous notes at the time of the accident did not reflect an injury to the cervical spine and also the plaintiff’s medical records note chronic degenerative change in the plaintiff prior to the accident. I also place weight upon the advantage that Dr Dickinson possessed in this matter by examining the plaintiff twice; with the last examination being the most contemporaneous.
279. [279]
     In my view, other than for a brief period of time immediately following the accident, the soft tissue injury to the plaintiff’s cervical spine cannot sound an allowance for economic loss.  
280. [280]
     Dr Dickinson’s evidence in relation to the aetiology, and requirement for further treatment, of the cervical spine injury is preferred given his up-to-date examination of the plaintiff.
281. [281]
     In relation to the plaintiff’s mental health issues, the medical evidence is that prior to the accident, he had an underlying anxiety condition or mood disorder.
282. [282]
     In accordance with the medical evidence, I accept that there may have been some incapacity for a period of time as a result of the accident, but then other stressors took over which now cause his present mental condition. 
283. [283]
     It is difficult to draw a line in the sand when that occurred. However, a year after the accident, in my view, other stressors took over. By that time, the plaintiff had been to Syria and experienced distressing circumstances.
284. [284]
     The plaintiff went to Syria eight months after the accident. His cousin had died, and he went to be with his grieving family who were there. He states that if it were not for the accident and his head injury he would never have gone to Syria as his inhibitions were significantly altered as a result of the injury. Notably, he never told any doctors that he went to Syria due to his inhibitions being significantly altered. This failure was because he says that there were so many things he could not express in the short time he had with them. I do not accept this explanation from the plaintiff.
285. [285]
     Notably, it was not just one doctor he failed to tell. The plaintiff visited multiple doctors and he failed to tell any of these doctors this explanation for going to Syria. In my view, this was not due to having a short time with these doctors. Especially, since he saw Dr Lovell on more than one occasion; the first occasion after he returned from Syria and then once again after returning from the United States of America.  
286. [286]
     Once the plaintiff got to Syria, he was subjected to significant stressors. He then returned to Australia and in 2020 he went to the United States of America where he was subjected to more stressors which aggravated his mental health.
287. [287]
     I accept Dr Lovell’s opinion that the plaintiff had a pre-existing mental disorder which may have been transiently aggravated by the accident. 
288. [288]
     However, in my view, the accident effect subsided a year after the accident. By this time, the plaintiff had returned from Syria and other more significant psychological stressors impacted upon him.
289. [289]
     In my view, any aggravation of his underlying psychological condition (whatever his diagnosis) caused by the accident dissipated about a year after the accident.
290. [290]
     There is no evidence that at the date of the accident there was a job for the plaintiff to go to. Therefore, there is no opportunity lost. It was the other stressors that were the cause of the psychological problems preventing employment, not the accident.
291. [291]
     I accept that the appropriate way to assess his past financial loss is as how the second defendant approached this issue. However, I differ in one respect.
292. [292]
     The second defendant submits an award up to when the plaintiff went to Syria is appropriate. In my view, this sum should be calculated from a year after the time of the accident (up to the end of 2017) which includes the time in Syria.
293. [293]
     After a year, the stressors of what occurred in Syria and his relationship issues as reflected by his criminal history are the more significant psychological stressors impacting upon him.  Further, in December 2017, he was informed by the Suitability Committee that he was no longer suitable to teach and any further registration had to address the issues surrounding his repeated criminal offending.
294. [294]
     Accordingly, I award a global sum of $40,000 which is calculated by considering his taxable income in 2015 where the plaintiff earnt just under this.  In my view, but for the accident he could have earned around this amount of money, for example, by returning to working with cars.

Interest on past economic loss

295. [295]
     The 10-year Treasury bond rate at the beginning of the quarter was 3.999%. However, interest on past economic loss is calculated pursuant to s 60 of the CLA.^[18] Accordingly, interest on $40,000 at half the bond rate for a period of 7.23 years from the date of the accident (22 December 2016) to the date of judgment amounts to $5,782.56.

Past loss of superannuation

296. [296]
     Superannuation in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth) (the Superannuation Guarantee Act) applies to any proven economic loss.  Section 56 of the CLA provides:

“(1) The maximum amount of damages that may be awarded to an employee for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this part) for the deprivation or impairment of the earning capacity on which the entitlement to the contributions is based.

2. The relevant percentage is the percentage of earnings that is the minimum percentage required by a written law to be paid on the employee’s behalf as employer superannuation contributions.”

297. [297]
     I note that the plaintiff earnt his highest income in the preceding three years to the accident in his car restoration business. The Superannuation Guarantee Act states that if a person is self-employed then they are not entitled to superannuation. However, the evidence is that the plaintiff had shut down his car restoration business in preparation for entering academia. I am prepared to accept that the plaintiff would have been earning an income in an area (for example, by working with cars), other than being self-employed, for a year after the accident.
298. [298]
     Section 56 of the CLA sets out the method for calculating superannuation. The plaintiff has pleaded the appropriate rate is 9.5%. However, the second defendant has allowed 9.71% for the plaintiff’s past loss of superannuation as an average of the employer superannuation contribution each year since the accident. In my view, 9.71% is appropriate. The plaintiff’s past loss of income has been calculated to amount to an average of $3,884. 

Future economic loss

299. [299]
     Future economic loss is pleaded by the plaintiff in the statement of claim:

“10.(d) for future economic loss the sum of $671,415.00 being an ongoing loss of $1,000.00 net per week for a period of 27½ years on the 5% tables discounted by 15% for contingencies and vicissitudes.  This sum is calculated taking into account:

1. inability to obtain and maintain employment as a lecturer at a secondary learning institute or university as a result of the injuries and psychiatric sequelae and the impediment which they have on the plaintiff’s working capacity;
2. inability to exercise his earning capacity using his multiple degrees including a Bachelor of Education majoring in psychology, a Graduate Diploma of Psychology, a Masters of Theology and a PhD in Education due to the injuries and psychiatric sequelae;
3. likely earnings as a teacher or lecturer at a learning institute but for the injuries received in the accident;
4. the plaintiff’s current age of 39½ years and the remaining 27½ years of his working life;
5. awards in comparable cases…”

300. [300]
     The plaintiff submits that for future economic losses, considering his expected retirement age and current age, a further 24 years of economic loss at the same annual rate must be considered. This amounts to an additional $2,880,000 in future economic losses, absent the accident. 
301. [301]
     I am not satisfied that there is any evidence to support this claim, or indeed any award for future economic loss.
302. [302]
     The plaintiff’s historical earnings provide no guidance as to what he might have done or what he was capable of doing or what opportunity has been lost to him.
303. [303]
     In relation to future economic loss, the plaintiff states that the evidence provided by Dr Labrom and Dr Todman underscores the impact of his spinal injuries on his capacity for work.
304. [304]
     As I have already stated, in all of the circumstances, I prefer the evidence of Dr Dickinson. In particular, the results of his more contemporaneous examination of the plaintiff in January 2023 and his view that there was no physical finding related to the plaintiff’s injuries.
305. [305]
     Dr Dickinson confirmed that the plaintiff’s injuries did not have any effect on his employment other than for an immediate post-injury phase.
306. [306]
     In my view, the plaintiff’s evidence has not established any entitlement for any future economic loss leading from any allegation regarding difficulties with his physical injuries.
307. [307]
     I note that the plaintiff stated in his evidence that his ambitions and prospects regarding employment were significantly altered as a result of his head injury, compelling him, in his evidence, to venture to Syria.
308. [308]
     As I have already set out, the plaintiff’s present mental health issues are not attributable to the accident.
309. [309]
     I accept the medical evidence that, at the time of the accident, the plaintiff suffered a mood disorder. The accident did not cause this mood disorder. 
310. [310]
     I note Dr Todman’s evidence that overall, a post-concussive syndrome or mild traumatic brain injury could not be completely excluded. However, the weight of the evidence points more strongly to the plaintiff’s psychological distress impacting memory and associated difficulties.
311. [311]
     As Professor Whiteford states, the accident was one stressor amongst many. Whilst its contribution at the time was significant, the stressors from the accident lessened over time and were replaced by multiple other stressors. These post-accident stressors have, in aggregate, been much more significant and caused a severe deterioration in the plaintiff’s condition. Presently, the stressors that the plaintiff has experienced, which are much more proximal, are the ones maintaining the severity of his problems. 
312. [312]
     Dr Lovell states that whilst the accident transiently aggravated the plaintiff’s pre-existing mental disorder, the accident effect has subsided, and other subsequent more significant psychosocial stressors have now impacted the plaintiff. 
313. [313]
     In my view, there is no future economic loss that is attributable to the accident.

Past special damages

314. [314]
     Past special damages are claimed in the amount of $7,128.35 calculated as follows:

     1. Medicare charge - $2,483.35;
     2. pharmaceutical expenses - $2,145;
     3. medical expenses - $1,500; and
     4. travel expenses - $1,000.
315. [315]
     The plaintiff submits that he has incurred significant costs in relation to physiotherapy.  
316. [316]
     The second defendant notes that apart from the Medicare charge, there has been no documentary evidence confirming such sums.  However, the second defendant does not take issue with this and allows $5,000 for past special damages. I agree with this approach and accordingly, allow $5,000 for past special damages.

Future special damages

317. [317]
     The plaintiff asserts significant amounts for future special damages, including future physiotherapy. 
318. [318]
     The most recent examination of the plaintiff was by Dr Dickinson in January 2023. Dr Todman and Dr Labrom’s examinations of the plaintiff occurred some time ago in 2019 and 2018, respectively.
319. [319]
     As I have already stated, I place great weight on this most recent examination of Dr Dickinson.
320. [320]
     After examining the plaintiff in January 2023, Dr Dickinson reported in his latest report that:

“No other specialist opinions or investigations are required in relation to the physical aspects of this injury… No treatment will be required in the future… There is no secondary condition that will development as a result of injury sustained in this accident.”

321. [321]
     In my view, Dr Dickinson’s evidence in relation to the aetiology and requirement for further treatment of the cervical spine is preferred given his up-to-date examination of the plaintiff. That is, the plaintiff does not require any future medical treatment in relation to any alleged injury to the cervical spine. 
322. [322]
     However, in my view, some small global component for future special damages at $5,000 covering surgical revision of the scar is appropriate.
323. [323]
     Accordingly, the plaintiff’s damages are as follows:

324. [324]
     I find judgment for the plaintiff against the second defendant for $85,466.56.
325. [325]
     I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on an order for costs. 
326. [326]
     However, if this cannot occur, the parties should, within 14 days, provide written submissions and advise the court accordingly.
327. [327]
     If it is appropriate, I will then deal with the question of costs on the papers, unless either party requests a hearing. In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.