District Court New South Wales Medium Neutral Citation: Saleh by his tutor Abusaleh v Li [2017] NSWDC 305 Hearing dates: 3 November 2017 Date of orders: 03 November 2017 Decision date: 03 November 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Matter stood over to the Infant Approval List on Friday 8 December 2017, noting the plaintiff is to obtain a further psychiatric report in response to Dr Klaas Akkerman's report. Catchwords: TORT – personal injury – application for approval of settlement pursuant to ss 75 – 77 Civil Procedure Act 2005 (NSW) – unsatisfactory medical evidence – direction for further medical evidence to be obtained Legislation Cited: Civil Liability Act 2002 (NSW), s 31 Civil Procedure Act 2005 (NSW), ss 75 - 77 Cases Cited: Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 Beyer v Gehue [2015] NSWDC 62 Farjudi v Cheng [2015] NSWDC 297 Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69 Naguib v Salesforce Australia Pty Ltd [2010] NSWWCCPD 1 O'Donnell v Ainslie Football and Social Club Ltd [2013] ACTSC 18 Quinn v Scholtz [2014] NSWDC 71 Sirikci v Hewlett Packard Australia Pty Ltd [2015] NSWWCCPD 45 Western Sydney Local Health District v Chan [2015] NSWSC 1968 Zeng v Zeng [2011] NSWDC 84 Category: Procedural and other rulings Parties: Plaintiff: Khalid Bean Saleh by his tutor Mohammed Abusaleh Defendant: Wenlong Li Representation: Counsel: Plaintiff: Mr I Todd Defendant: Ms Z Celik (solicitor) Solicitors: Plaintiff: Sanford Legal Defendant: Sparke Helmore File Number(s): 2017/300440 Publication restriction: None Judgment 1. These are my reasons for standing these proceedings over to Friday 8 December 2017, so that the plaintiff can obtain a report in response to the report of Dr Klaus Akkerman of 18 November 2015. 2. The plaintiff, who was born on 25 April 2013, was a passenger in a child support seat in a vehicle driven by his father on 18 February 2015 when the car was hit from the rear when travelling at very slow speed. There was no suggestion that the plaintiff, who was properly strapped in at the time, saw the accident or suffered any physical injury but it would appear that after the accident he developed some symptoms which were treated by the family doctor. The family doctor referred the plaintiff to a child and adolescent psychologist, Rebecca Swinbourne, who was told that the plaintiff became quite distressed when he heard loud vehicle sounds such as car horns and the like, and also to loud household noises, as well as becoming clingy at pre‑school, whereas previously he had been happy to be separated by his parents. 3. The parents took the child out of childcare for this reason but the child psychologist encouraged them to take him back; which I gather occurred. She gave them some simple advice about a method of gradual exposure such as letting the plaintiff watch YouTube clips of car horns so that he could listen to it without crying. She said at the end of her report of 21 July 2015 that she had not made any further appointments, and I note from the out‑of‑pocket expenses that these seemed to consist of one appointment with the general practitioner and one or perhaps two appointments with the child psychologist. The report from Dr Allum also states that he had not referred the plaintiff to a specialist because he did not think this was necessary (p 2 of his report attached to the affidavit of Mohammed Abusaleh). 4. However, subsequent to this a medico‑legal report was obtained from Dr Klaas Akkerman which is in stark contrast to the benign views taken by the child psychologist and the general practitioner. Dr Akkerman noted that the plaintiff was, at the time of being seen by Dr Akkerman, two and a half years old and that he inquired of the parents whether the child had "a psychological condition". He then went on to note in relation to current symptoms: "I inquired as to how he is now. He said: He is scared by loud sounds such as the car horn and vacuum cleaner. He is reluctant to get into the car. He is hypervigilant. He is a backseat driver. He used to go to childcare. After this he would have difficulty separating. He would cry. His parents have stopped taking him to day care. He has difficulty separating. He is clingy. He sleeps with his parents. He could not volunteer any other symptoms. On specific questioning he said: He wets the bed. He has never been dry. He is an only child. He is a bit disobedient now. He wasn't before. He plays on his own. He dosesn's not [sic] share toys when he is exposed to other children. He fights with other children. TREATMENT I inquired as to what treatment he has had. He has seen the psychologist called Rebecca Swinbourne twice. No further treatment was recommended. DEVELOPMENT MENTAL HISTORY He had a normal pregnancy. He had normal delivery. He was a normal baby. He had normal milestones. There were no behavioural problems. MEDICAL HISTORY Nil. SOCIAL HISTORY He went to childcare. This has now stopped. He now prefers to play on his own. He doesn't share toys. He fights with other children." 1. However, other matters noted in Dr Akkerman's report were the following: 1. "I was unable to ascertain what his short‑term memory was like." 2. A "guarded" prognosis. 3. "He is a student. He refuses to go to school. This will interfere with his education." 4. Under "Need for future treatment", Dr Akkerman states: "He would benefit from seeing a psychiatrist. He would possibly benefit from taking anti‑depressant medication. This would cost $400 per month. He needs this treatment for two years." 5. As to the need for attendant care services Dr Akkerman opined: "He has regressed. He has become more demanding. His parents would benefit from domestic assistance 8 to 12 hours per week, four years." 1. Dr Akkerman's conclusion under the heading "Whole person impairment" was: "Given his age, I do not believe that it is appropriate to calculate this. This is deferred until he is at least 4 or 5 years old." 1. It would be easy for me to dismiss this report or disregard it because parts of it seem, to be frank, hard to believe, but I must exercise real caution in this regard because from my research into previous reports of Dr Akkerman his reports have been accepted as accurate and correct in a number of other Court proceedings. 2. In Quinn v Scholtz [2014] NSWDC 71 evidence of this kind from Dr Akkerman was accepted by the Court, although Williams SC DCJ commented in passing that the report was "very light on detail" (at [90]). Williams SC DCJ accepted a finding of 20% almost entirely by reason of Dr Akkerman's report concerning this issue, although he also took into account that the plaintiff had suffered a small infection for several weeks following surgery for a particular condition. 3. His Honour went on to state at [85] to [89]: "85 The principal claim appears to be based upon a diagnosis by Dr Akkerman of major depression following his examination of the plaintiff on 30 January 2012. He recommended psychiatric consultations and anti depressant medication for two years at a cost of $400 per month. There is no evidence that the plaintiff had any such treatment or intends to have any such treatment. 86 Although the psychiatric evidence does not attribute the major depression to any alleged breach of duty, the claim seems to be based on the plaintiff's perception of the effects of delay and her understanding of what happened in the surgery. She said that she had been told by the operating surgeon "my appendix had been blown apart basically; it was in half a dozen pieces, was gangrenous, and I was made of tough stock. I was lucky to be here". She felt thankful that she was still here, she was very anxious and she thought that her children could have been left as orphans. Another version of her understanding was recorded in the report of Dr Greenberg as follows "Donna you are from tough stock. It was a mess inside and you were full of infection and you had a burst appendix and peritonitis for a couple of days". The plaintiff said she gave a similar history to Dr Parmigani, a psychiatrist who she had seen at the request of the defendants. No report from Dr Parmigani was tendered and I accept Mr Campbell's submission that a Jones v Dunkell inference is appropriate in those circumstances. However, it will be noted from the agreed findings that the plaintiff's understanding of what she was told by the treating surgeon could not have been factually accurate. 87 She said that as a result of her ordeal she was emotionally all over the place and traumatised. She was depressed and anxious up until January 2012 but things did improve and she went back to work. 88 When the plaintiff was examined by Dr Akkerman she reported nightmares about twice a week, anxiety and worries about her children getting ill. She offered other symptoms of depression in response to specific questioning. 89 As Mr Barnes submitted, the history given to Dr Akkerman was that the CT scan had shown a perforated appendix. That history was incorrect as the CT scan demonstrated an intact appendix and perforation was only noted in the post operative pathology report." 1. The plaintiff in Quinn v Scholtz failed on liability so this assessment was an alternative finding but the degree of weight that the Court gave to Dr Akkerman's reports means that I cannot lightly disregard findings of this nature, particularly since I note that in Zeng v Zeng [2011] NSWDC 84 Elkaim SC DCJ of this Court accepted Dr Akkerman's views uncritically at [45]. 2. There has been some criticism of Dr Akkerman's reports in other Courts but this is by no means universal. For example, in Sirikci v Hewlett Packard Australia Pty Ltd [2015] NSWWCCPD 45 at [85] and [92], Keating DCJ noted the Arbitrator at first instance was critical of Dr Akkerman's reports. However, Dr Akkerman's reports were accepted and endorsed in Naguib v Salesforce Australia Pty Ltd [2010] NSWWCCPD 1. In the courts in the Australian Capital Territory, I note that Sidis AJ accepted Dr Akkerman's report uncritically in O'Donnell v Ainslie Football and Social Club Ltd [2013] ACTSC 18, although expressing reservations about his reports in proceedings in this court in Farjudi v Cheng [2015] NSWDC 297. 3. On appeal, however (and this carries a great deal of weight with me), is that Dr Akkerman's reports have been considered at length in two decisions. The first of these is Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69 where those reports were accepted without criticism. In Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 the Court of Appeal dismissed an appeal where the appellant complained that the trial judge should not have placed weight on Dr Akkerman's reports. Similarly, in an appeal from the Appeal Panel to Adams J in Western Sydney Local Health District v Chan [2015] NSWSC 1968 Adams J dismissed an appeal where the appellant complained about reports of Dr Akkerman who had given a 20% whole person impairment finding. I note that Dr Akkerman's reports seem often to refer to two years of medication at $400 a month with some of these as early as 2012, and that this has been the subject of some concern by the court. In Beyer v Gehue [2015] NSWDC 62 Hatzistergos DCJ of this Court noted that such a claim had been made but noted that it was "not pursued" (at [101]). 4. As an accredited specialist his reports have been considered by this Court on many occasions. I do not feel that I can disregard Dr Akkerman's findings, however, it may be that Dr Akkerman is wrong. If he is wrong it is imperative for the plaintiff to find out straightaway because otherwise the plaintiff has on his medical record for the rest of his life that he has been diagnosed with a very serious condition, and one which he would be obliged to disclose in future claims for a variety of forms of insurance as well as employment. 5. It seems to me that the simple answer would be to obtain a second report from another psychiatrist to see if Dr Akkerman's views are in fact correct, and if not, then the application for approval can proceed. It was put to me that the reports of the child psychologist were sufficient. Unfortunately they predate Dr Akkerman's report and it is quite clear from what he says that he is aware that the child has seen a psychologist. He has made a finding that the child suffers from separation anxiety and specific phobia, both of which trigger s 31 Civil Liability Act 2002 (NSW), and if the plaintiff has a condition requiring such extensive treatment and home care then it would be remiss of me to approve the settlement. 6. I am indebted to the legal representatives of both parties for their understanding of the difficulties with the approval of infant settlements. While this Court does not have a parens patriae role as such in that it is a creature of statute, the obligations of the Court to ensure that settlements involving persons under a disability accurately reflect the quantum of a claim is an important one which is why the procedure under ss 75 - 77 Civil Procedure Act 2005 (NSW) have been set up. 7. I have had the benefit of an advice from Mr Todd, which I have read and taken into account, but it seems to me that it would be desirable if an additional report could be obtained, if only for the peace of mind of the plaintiff, and his family members as well as for the benefit of those who advise him in the event that there was some later criticism of acceptance of a sum which would be disproportionate to the very serious condition diagnosed by Dr Akkerman. 8. I have prepared this judgment for the purpose of assisting the preparer of that report, and the Court would welcome the assistance of a child psychiatrist able to respond to the issues raised by Dr Akkerman so that these proceedings can be resolved, as opposed to having to go into the Inactive List pending some form of consideration of whole person impairment of the kind considered necessary by Dr Akkerman. Orders 1. Matter stood over to the Infant Approval List on Friday 8 December 2017, noting the plaintiff is to obtain a further psychiatric report in response to Dr Klaas Akkerman's report. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2017