Al-Maousawai v Transport Accident Commission
[2013] VCC 1246
•16 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02693
| ZAYNAB AL-MAOUSAWI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12 and 13 September 2013 | |
DATE OF JUDGMENT: | 16 September 2013 | |
CASE MAY BE CITED AS: | Al-Maousawai v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1246 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – permanent severe mental disturbance – subsequent motor vehicle accident
Legislation Cited: Transport Accident Act 1986, s93(17)(c)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Petkovski v Galletti [1994] 1 VR 436; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment: Leave granted to the plaintiff to bring common law proceedings in respect to injuries suffered arising out of a transport accident on 25 December 2006.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M J Lang | Slater & Gordon Ltd |
| For the Defendant | Mr A J Moulds SC with Mr C S O’Sulllivan | Lander & Rogers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4)(6) of the Transport Accident Act 1986 (“the Act”) for injuries suffered by the plaintiff arising out of a transport accident on 25 December 2006 (“the first accident”).
2 The plaintiff relies upon s93(17)(c) of the Act, claiming to have suffered a permanent severe mental, or permanent severe behavioural disturbance, or disorder.
3 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held,[2] having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1]Mobilio v Balliotis [1998] 3 VR 833
[2]at 846
[3](1995) 21 MVR 314
4 Winneke P in Mobilio, agreed with Brooking JA’s reasons, and further agreed with him that the word “severe” where used in sub-paragraph (c) of s93(17) of the Act, was a word of stronger force than the word “serious” when used in that Act.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross-examined. Further, she tendered in evidence two affidavits, one from her sister-in-law, Gufram Mustafa, sworn 10 September 2013, and a friend, Amal Mohsen, sworn 10 September 2013.[4] Ms Mohsen gave viva voce evidence and was cross-examined, as was the treating psychiatrist, Dr Al Humrany.
[4]exhibits B and C respectively
Outline of Section 93(17) of the Act
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. Secondly, the impairment must have consequences in relation to pain and suffering and loss of enjoyment of life, which when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing, as being “more than significant or marked, and as being at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments, or losses of body functions, mental, or behavioural disturbances or disorders.
8 The Transport Accident Commission accepted liability for medical consequences of the injury, but challenges this application on various grounds. The matter is complicated by the fact of a second motor vehicle accident on 8 March 2009 which, it would appear, had the effect of aggravating the plaintiff’s mental condition, then extant (“the second accident”).
9 It would appear that it is common ground that the physical injury suffered by the plaintiff in the first accident led to a Chronic Pain Disorder, various features of which, I will refer to later. It is further common ground that the physical injuries suffered in the second accident produced either a temporary aggravation, or a permanent aggravation of that Chronic Pain Disorder, such that, at the date of hearing, it was not seriously contested that the plaintiff was now suffering from a severe mental disorder in terms of the Act.[5]
[5]Transcript (“T”) 141, L5
10 The main area of contention between the parties was whether the plaintiff was able to prove that the first accident relevantly caused a permanent severe mental condition as existing as at the date of hearing.
The first accident: 26 December 2006 to 6 February 2009
11 The ambulance report tendered in evidence and dated 25 December 2006[6] revealed that the plaintiff was a female front-seat passenger in a four-door sedan with her husband driving, and three boys, aged three, five and seven, in the rear seats. A taxi had “T-boned” the passenger side of the sedan at approximately 60 to 70 kilometres per hour with enough force to spin the sedan 180 degrees, and push the car onto the median strip. The plaintiff was unable to exit due to damage to the door, and the impact was mostly on the side pillar – front and rear passenger door, with a 30-centimetre intrusion. The ambulance officers applied spinal immobilisation by way of a cervical collar-type for a stiff neck.
[6]exhibit D
12 Thereafter, the plaintiff was seen by her general practitioner, principally Dr Marcus. In his report dated 14 May 2007,[7] Dr Marcus related how a partner of his practice had referred the plaintiff to a psychologist, Ms Juliette Hooper, for counselling and support due to persistent shaking and anxiety symptoms after the accident.
[7]exhibit F
13 Further, the plaintiff complained of increasing pain in the left arm and lower back, with pins and needles in the left middle finger and left thigh. Accordingly, she was referred for a CT scan of the cervical spine. The CT scan, in turn performed on 8 February 2007, concluded:
“There is evidence of bony foraminal narrowing at the level of C3-4 bilaterally with minor narrowing of the right C5-7 intervertebral foramen. A potential compromise of the exiting C4 nerve roots bilaterally is noted.”
14 A subsequent MRI scan of the cervical spine reported:
“Mild multi level neural foraminal stenosis and cervical spondylitis.”
15 An MRI scan was performed on the lumbar spine on 30 March 2007 which reported:
“Mild disc desiccation at L4-5. Mild bilateral facet joint arthropathy at L5‑S1.”
16 Treatment at that time was Endep, 10 milligrams at night, on a regular basis for chronic pain, and to help the plaintiff’s psychological condition. The plaintiff also underwent physiotherapy treatment for her neck, back and left knee two to three times a week regularly.
17 The Transport Accident Commission provided home help because of the injuries for two hours a day, twice a week, initially for two months, but later for a period of at least five years.
18 Dr Hooper, who apparently treated the plaintiff in 2007, reported as follows:[8]
“Following the accident Zaynab was in a sense of shock and disbelief. She reported a number of physical aches and pain, including pain in her left arm, back and left knee pain. At the time that she was last seen she was using painkillers and attending physiotherapy.
The plaintiff reported that she felt very fearful of travelling in a car following the accident. She described experiencing flashbacks, ruminating about the accident and avoided going out. She was very tearful, distressed and had thoughts about death and dying, and experienced poor sleep, nightmares, impaired appetite and became socially withdrawn. She described a loss of pleasure/interest in activities and fatigue which prevented her functioning to the same level as before. When her husband went out she would call him to check if he was safe.
In addition the plaintiff’s functioning and capacity to care for her family, and perform household chores was impaired. She cooked and cleaned less frequently, and at times felt guilty about this as it placed more pressure on her husband to help out. In addition she was not able to interact with her children as before, and her intimate relationship with her husband was impaired.”
[8]exhibit G
19 It was Dr Hooper's opinion that the plaintiff, at that stage, was experiencing Post-Traumatic Stress Disorder following the car accident in which she thought she was going to die, and felt afraid that her family was seriously injured. She had been seen a few times in the months after the accident, but had not been seen thereafter.
20 Dr Marcus reported on 8 October 2008[9] that in 2007, the plaintiff continued to suffer from neck pain radiating to the left arm, and associated with pins and needles in the left fingers; lower back pain, left knee and left ankle. She had been referred to a neurosurgeon for her neck pain, and an orthopaedic surgeon for her shoulder and was referred to Mr Brendan Dooley, orthopaedic surgeon, for chronic ongoing neck pain, the latter suggesting that she had suffered a soft-tissue injury of the neck.
[9]exhibit F
21 Another orthopaedic surgeon, Mr Kiellerup, had, on reviewing an MRI scan of the left knee, considered that there was a possible mild injury to the medial meniscus and left ankle. A repeat left knee MRI scan was apparently reported as normal, and the plaintiff was referred to Dr Terrence Lim, pain management consultant, in August of 2008, but had to await assessment.
22 Dr Marcus recorded at that time that the physical injuries and lack of progress led to the plaintiff becoming anxious, frustrated and depressed, and he referred her to Dr Al Humrany, an Arabic-speaking psychiatrist, who first saw the plaintiff on or about 25 March 2008.
23 Dr Marcus recorded that Dr Al Humrany’s assessment was that the plaintiff suffered from a Chronic Pain Syndrome with an Adjustment Disorder with secondary anxiety and episode of depression. He had commenced her on Lexapro tablets (an anti-depressant). As at October 2008, the plaintiff was on 10 milligrams of Lexapro a day and was continuing to Dr Al Humrany every couple of weeks for ongoing management and psychotherapy.
24 It was Dr Marcus’s opinion at that stage (October 2008) that the plaintiff had developed a Chronic Pain Syndrome, in that she had failed to respond to intense and regular conservative treatment. He agreed with the psychiatrist’s assessment that she had developed an Adjustment Disorder with Mixed Anxiety and Depression. At that stage, he stated:
“Her short-term prognosis is not encouraging. As explained, she has not made any progress with her physical injuries despite regular physiotherapy treatment, TENS machine at home and taking painkillers. It is always difficult to treat patients who develop Chronic Pain Syndrome and sensitisation, even when managed by a pain management consultant. However, we hope that she will make some progress with [a] pain management program with Dr Lim. Her long-term prognosis is to be determined following her pain management program and will be measured by the degree of improvement and better understanding of her situation. It is also important to mention again that [the plaintiff], with her husband and three sons, were all affected by the accident and they all required treatment as a family. This had a negative impact on the family with a lot of interruption to their daily routines and social life.”
25 Dr Al Humrany reported to the Transport Accident Commission on 18 April 2008. He recited the events of the accident, and then stated:
“From the time of her accident until now, she described ongoing deterioration in her mental state due to severe recurrent chronic pain. She described all her activities being slowed down and unable to achieve and perform as before. She told me she had guilty feelings towards her family, husband, due to her inability to provide them with adequate support as before. … In regards to her moods she described on and off low, depressed and touchy feelings, becoming a bit teary in response to any demands or difficulties with on and off anger and bad temper due to her inability to perform as before. … On the other hand she described ongoing worries about her children who were with her during that accident that caused a trauma on their behaviour and attitude as she alleged. She mentioned her sleeping was severely erratic due to her children most of the time crying at night following the accident.”
26 At that stage, following his first interview, Dr Al Humrany’s diagnosis was one of Chronic Pain Syndrome, with Adjustment Disorder and Mixed Anxiety and episodes of Depression. His recommendations at that stage were to commence Lexapro medication on 10 milligrams for a short term of three to six months. He considered that the plaintiff was in need of ongoing pain management in order to deal with her physical disability and alleged chronic pain.
27 At that stage, the plaintiff had a desire to resume her driving lessons; however, she had a strong fear to drive alone. She was in need of support to enhance that matter. At that stage, it was his plan to look after the plaintiff for the next three to six months and possibly to discharge her and send her back to her general practitioner for ongoing support.[10]
[10]exhibit H
28 Further, in his report dated 13 May 2010, Dr Al Humrany recorded that the plaintiff had also described a vivid flashback phenomenon about the previous accident, vivid dreams and a strong fear to use the car as before. Under cross-examination, he said that she told him that the issue continued for a few months and then it was slowly improving and she was able to resume some activities with respect to using the car; however, she still had ongoing startled reflexes in response to any issue that might happen on the road.
29 After the first occasion, the plaintiff attended Dr Al Humrany’s clinic on a regular basis and he noticed some improvement in her mental state, mainly in regards to her depression and anxiety symptoms, and severity of the level of the pain she was suffering from. Also, she described some improvement in her social interaction, communication and ability to perform her daily house duties with the aid and support from housekeepers who attended her house on a regular basis at that time and helped with house duties. She had described however, some side effects from the medication, that included sedation, drowsiness and lethargy, which partially affected her ability to perform her duties in an adequate way. At that stage, he decided to cut down her medication of Lexapro, from 15 milligrams to 10 milligrams and then 5 milligrams. However, because of the ongoing constant neck and low-back pain with ongoing difficulty to walk, it had an impact on her ability to perform and achieve her goals in an adequate way. Apparently she had been booked in to see a pain specialist in approximately January 2009. Dr Al Humrany recorded that the pain specialist, Dr Lim, had planned to give her a trial of Lyrica, 75 milligrams, as a way of dealing with her pain problems.
30 Dr Al Humrany then records that on 19 March 2009, the plaintiff attended his clinic and related the fact of the second accident which happened on 8 March 2009. She gave a history of extreme, severe pain in her neck and back, as well as her knee. Following that accident, Dr Al Humrany noticed a deterioration in the plaintiff’s mental state, mainly in regard to her anxiety and depressive element. She was becoming extremely dependent and unable to perform, or achieve any goals around her. She described the pain as being constant, regular and continuous and dramatically interfered with her sleeping. Also, with the result of increasing her weight, which in turn increased her frustration, anxiety and pain problems.
31 As at May 2010, the plaintiff was still seeing the pain specialist, Dr Lim, on a regular basis, and being accepted as part of the program and being involved on that issue. Dr Lim considered the diagnosis to still be one of Chronic Pain Syndrome, Adjustment Disorder with secondary Anxiety, and episodes of Depression. At that stage, he believed that the plaintiff was in need of ongoing follow-up and management from his service in order to ensure, and keep her mental state stable, and to continue on her medication that included anti-depressant medication, Lexapro, 10 milligrams, as well as Lyrica, 75 milligrams, one to two tablets at night, to support her pain problems.
32 The plaintiff was examined by consultant psychiatrist, Dr Nathan Serry, on 21 April 2008.[11] He took a history of the physical injuries arising out of the first accident. He noted that the ongoing physical problems have related to persistent pain in the left side of her neck, and extending down the left arm. She had left knee pain and left ankle pain and swelling, and also experienced low-back pain. She was undertaking physiotherapy using a TENS machine, and taking Panadol and an anti-depressant.
[11]exhibit J
33 Since the accident, the plaintiff has been quite restricted and she has some home help. She specifically mentioned that she felt unable to look after the children as she previously did. At the time of the accident, the plaintiff was on L plates, but since the accident, she has been “too scared to drive and has made no progress with this”. She is a nervous and intense passenger and will tell her husband to be careful. She finds that when she is scared in the car her pain is more marked. She has not returned to the accident site and doubts that she could.
34 The plaintiff is scared by other reminders, and described going blank and being unable to talk. The accident itself often comes to mind. Thoughts are easily triggered and cause her to become tearful. She described feeling as though “death is presenting itself”. She has occasional accident-related dreams, but tends to dream more of death, something that she did not previously do. She also experiences flashbacks, which tend to occur when she is alone.
35 Whilst she is motivated, she feels limited in what she can do. Sleep has been poor but has improved with medication. On psychiatric examination, Dr Serry related that the plaintiff was a clear historian; however, demonstrated a reduced range of effect with prominent underlying depressive themes. She was anxious, apprehensive and distressed. There were prominent residual post-traumatic anxiety features. There was no abnormality to thought stream or form, but thought content reflected a pre-occupation with pain and life changes.
36 Dr Serry’s diagnosis at that stage was:
“A combination of a PTSD, Pain Disorder associated with psychological factors and a general medical condition, and a Chronic Adjustment Disorder with Anxiety and Depression.”
37 The plaintiff recorded that she felt she was deteriorating. Dr Serry considered that the plaintiff experienced:
“… quite significant post-traumatic anxiety features with nightmares, flashbacks, intrusive thoughts, anxiety on the road as a passenger and avoidance of learning to drive, avoidance of the site and marked sensitivity to reminders.”
38 Dr Serry conducted an assessment under the relevant tables, and opined that the plaintiff had a permanent psychological impairment of 20 per cent. As to prognosis, he said:
“I would be somewhat concerned in relation to your client’s prognosis. She appears to be developing an entrenched Pain Syndrome with significant impact on day to day functioning. … It appears as though your client will require ongoing psychiatric treatment, and she may well require referral to a multidisciplinary pain management program to assist her in coming to terms with the impact of the accident.”
39 On 4 June 2008, the Transport Accident Commission had the plaintiff assessed by consultant forensic psychiatrist, Dr Carol Newlands.[12] She had a number of documents to consider, including a report from Dr Al Humrany dated 18 April 2008. She noted that she was:
“… to provide a psychiatric report so as to assess this lady’s degree of permanent psychiatric impairment.”
[12]exhibit M
40 The history recorded included:
“She did many of the household chores but had been unable to do some since the motor vehicle accident. Sometimes she would cook a meal. She tried to do the laundry, maintain the household in a tidy fashion, and to bathe the children. She used to [do] gardening but was now unable to do so. … Previously she had some sporting interests and had joined a local gym. She also enjoyed swimming. She now did not attempt these activities. Prior to the motor vehicle accident she had been driving on L plates and was hoping to sit her test. However, she has not driven since the accident. She had other hobbies listening to music and would sometimes read. Socially she used to visit family and friends, but now felt she was too tired to do so, and was also often in pain and thus less inclined to wish to do so.”
41 The plaintiff further stated she had previously been a relaxed person who was always happy. The background details included the fact that she had ceased schooling around ten years of age and had migrated in 1966 to Australia with her mother and brother from Iraq through Syria. Following her arrival in Australia, she met her husband and they married in 1997.
42 The plaintiff described a number of physical injuries which have already been recorded.
43 Dr Newlands also recited a report from Dr Judith McKenzie dated 9 July 2007, who had opined that the MRI had indicated early degenerative change affecting the cervical spine, with mild multi-level neural foraminal stenosis and degenerative change at L4-5 and L5-S1. She believed these to be consequences of the accident. She felt there was a possibility of a left rotator cuff injury also. Dr Newlands also recorded that Mr Kiellerup had diagnosed a mild chondromalacia patella of the left knee.
44 Dr Newlands recorded a number of psychological changes as a result of the accident, including:
·At the time of the accident, the plaintiff thought that the family were going to die and she could not bear to look into the rear seat to check on her children;
·She now does not want to go anywhere near the site again as she hates it and does not like to think of the accident;
·Sometimes thoughts of the accident play on her mind and she sees it, or visualises it, as if it were something playing in front her from the beginning to the end, usually occurring when attempting to sleep;
·In addition, she thinks of it by day but tries to refocus, but finds she is unable to do so until the whole scene is played through;
·She notices an increasing heart rate if she sees another accident and her whole head feels like it is flashing;
·She is now too scared to drive, whereas she had previously enjoyed that activity;
·As a passenger with her husband driving, she puts her hands close to her face and covers her eyes, despite her husband trying to reassure her;
·She feels frightened if there is a car driving next to theirs and travelling at high speed;
·Upon being reminded of the accident, she sees herself back there and hears her husband and the children screaming. Occasionally she will dream of the accident, though it is not exactly as it was but is somehow different;
·She also has other dreams related to death, the frequency of which is approximately once a month;
·She had difficulty doing things around the house and became easily upset if she failed to manage them;
·She feels herself to be nervous and tearful much of the time and was less tolerant of noise made by the children;
·She would often cry when she was alone so no one would see, as she perceived herself to be limited now in what she could do, even for her children;
·Her sleep pattern had altered such that she saw herself as having very little sleep, waking several times during the night;
·Of significance to the plaintiff was a loss of her organising skills, in that, for example, she did not organise herself to prepare lunchboxes for the children, who had to take orders for the canteen.
45 Her medication at that stage included Lexapro, 10 milligrams a day. Dr Newlands’ diagnosis was as follows:
“(1) Post-Traumatic Stress Disorder.
(2) Adjustment Disorder with Mixed Anxiety and Depressed Mood, secondary to her pain and ongoing limitations.”
46 Significantly, she stated:
“With regard to the former, that is the Post-Traumatic Stress Disorder, I believe she fulfils requirements of this condition in that:
(a)She was exposed to a perceived traumatic event in which she was faced with a situation in which she could have suffered serious injury or death. There was also a similar threat to her husband and children. She responded to this by believing that they could all die, she felt horrified and could not look into the back seat to see her children.
(b) She persistently re-experiences that traumatic event in the following ways, these being the one or more as required:
(i) she has recurrent thoughts of it during the day and has to try and refocus and thing of other things;
(ii) she recalls the event like a movie, such that she hears the sounds as well as views the pictures. This would appear to be a flashback. At such times as this she hears the children screaming again;
(iii) she experiences intense psychological distress when exposed to views which resemble the trauma, for example viewing scenes of accidents on the television. Her response at such times is to have her heart racing and her head as if it is flashing. She reacts by switching off the television and not wishing to view it.
(c)She described persistent avoidance of stimuli associated with the trauma and a numbing of general responsiveness which was not previously present. This is indicated by the following factors, these being the three or more as required:
(i) she tries to avoid thinking or conversing about the accident and her pain;
(ii)she avoids the site of the accident and always takes another route;
(iii) she now describes a markedly diminished interest and participation in significant activities, such as attending her gym and going swimming. She also does less housework;
(iv)the claimant describes feeling detached and wishing not to have contact with others;
(v) she describes having difficulty showing positive feelings;
(d) The claimant describes persistent symptoms of increased arousal which were not present prior to the accident. These are indicated by the following factors, these being the two or more as required:
(i)difficulty with staying asleep: She wakes several times which she associates with pain;
(ii) markedly irritable;
(iii)poor concentration;
(iv)a heightened startled response;
(v)increased vigilance which is noticed by her need to telephone her husband frequently to ensure he is well and to warn him about driving. She is also markedly more vigilant when in a vehicle;
(e) The duration of the disturbance now exceeds a month.
(f)The disturbance causes clinically significant distress and impairment in her household functioning. Since the duration has exceeded three months, the condition is now chronic.’
47 In addition, Dr Newlands considered the plaintiff exhibited a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, relevant to her ongoing pain and limitations. This is evidenced by her feelings of frustration that she cannot undertake the tasks that she once did, her poor organising skills, lack of energy and motivation. She also describes depressive features, such as constantly feeling sad and often tearful. She sees herself as limited and less able to do things for her family. At times she has wished to die but has not been actively suicidal.
48 Finally, Dr Newlands considered the plaintiff had a psychiatric impairment according to the relevant tables of 25 per cent, consisting of a Post-Traumatic Stress Disorder and an Adjustment Disorder. At that stage, she believed the impairment rating to be permanent.
49 Given that the second accident occurred on 8 March 2009, it is significant that the treating psychiatrist assessed the plaintiff approximately a month before, on 3 February 2009. On that date, Dr Al Humrany increased the plaintiff’s medication from 5 milligrams of Lexapro to 10 milligrams. The history he took on that occasion was that:
“She feels more tense and she has sound (sic) irritable and her sleeping is very erratic with ongoing racing thoughts due to increased problems with the pain and she is unable to feel relaxed and comfortable and her pain threshold had become less in regard to the increasing pain in the neck and shoulder and her leg.”[13]
[13]T100, L21-31
50 In re-examination, Dr Al Humrany was asked whether the situation as at 3 February 2009 also included the feelings of guilt, and aspects that he had referred to about her cultural background, and he replied:
“Yes. Still ongoing. It is still ongoing because the situation is not resolved with her chronic pain interfering with her life.”[14]
[14]T102, L5-11
51 The cultural background Dr Al Humrany had referred to was related as follows:[15]
Q: “What are the racing thoughts about, do we know?---
A:“Mainly her ongoing concern about her commitment, achievement, unable to achieve her goals in an adequate way. Something to add, because this lady from her culture, her main duty is how to deal with her house duty commitment, cleaning, cooking, caring for her kids, her husband. That is her main job, that’s … it has been reduced dramatically and that has caused a lot of distress for her. That is her main job. She had no other job other than caring for three sons. All of them they are growing up and they need a lot of care, a lot of support, in which the wife is doing mainly the most duty because the husband is working, although there is some sharing but that is the main job of the house duty. So she lost that kind of duty and of course she’s got ongoing concern and guilty feelings … about her inability to achieve her goals in an adequate way and being very touchy about that.”
[15]T101, L17 et seq
52 As recorded earlier, the plaintiff tendered an affidavit from her sister-in-law, Ms Mustafa, who was not cross-examined. She swore that she holds a Certificate III in Child Care Service and plans to undertake a Diploma in Child Care Services in 2014. She came to Australia in about 2000. When she came to Australia, the plaintiff was married and Ms Mustafa could see that –
“… she had a happy life. She was a happy, healthy woman. The plaintiff and I would go to the gym and pool together, we would go out socially and have a nice time.”[16]
Further, the plaintiff managed her household well. She would cook and clean the home. At the end of Ramadan the plaintiff would prepare a pastry for Eid. This would be distributed to many families. The plaintiff would host big birthday parties for her boys and many people would be invited. As we are family we would be invited and would attend those events.”
[16]exhibit B, paragraph 4
53 Since her transport accident, the deponent noticed a big change in the plaintiff. The plaintiff now appeared anxious and tearful, she complained of pain and not being able to complete tasks around the home. The deponent tries to help the plaintiff as much as she can. She still provides meals for her family on occasions. She speaks to the plaintiff quite often. She sounds down and still gets tearful. Further, she relates that since the accident, the plaintiff does not host parties for her boys at her home like she used to. Prior to this accident, she was described as “ambitious, happy girl and is now tearful and anxious”.[17]
[17]exhibit B, paragraph 5-8
54 The plaintiff also tendered an affidavit from Ms Mohsen, who met the plaintiff in or about 2004. Pre-accident, she noticed that she was a happy woman and fit and healthy. She would attend to her home duties with no problems. Her home was neat and tidy.[18] She recalls the accident in 2006 and visiting the plaintiff soon after. She would visit the plaintiff often. She was often tearful, she would appear to be anxious and would complain of pain. There would be unwashed dishes in the sink. She would help the plaintiff out and wash them. This was not something that she would normally see when she would visit the plaintiff prior to the accident. She related that the plaintiff still gets tearful, especially when she sees things that have to be done at home and she feels she cannot do them.
[18]exhibit C, paragraph 4
55 Ms Mohsen relates how the plaintiff appears quite anxious in the car, she would use “pretend brakes and startle easily”.[19] The plaintiff would often say to her that she worried about her children and about something happening to them in the car. Further, she states that on some days, if the plaintiff has been unable to cook, she takes the children for some “takeout”.[20] She has noticed a big change in the plaintiff, which is most obvious in the car. “She appears very anxious on the road”.
[19]exhibit C, paragraph 7
[20]exhibit C, paragraph 8
56 In my view, the evidence adduced by the plaintiff prior to the second accident, is such that the consequences at that time would amount to a severe behavioural disturbance or disorder as a result of the first accident. The defendant’s contention, however, is that the condition immediately prior to the second accident was such that, but for the second accident, there was likely to be an improvement in the prognosis, such that the severity of the behavioural disturbance would not be proved to exist to the required standard, as at today, as a result of the first accident. In particular, the defendant points to the evidence of the treating psychiatrist to the effect that as at 6 February 2009, he is unable to be certain about the prognosis of the mental disorder without a trial of a pain management program, which would hopefully improve the situation. It is common ground that his opinion was that with a Chronic Pain Syndrome that then existed, the success rate of such a pain management program was still probably less than 50 per cent.
57 Senior counsel for the defendant concedes that the treating psychiatrist has given his evidence in a straightforward way and he quite properly and reasonably concedes that his evidence is preferable to that of Dr Mendelson because of his experience with the plaintiff over a long period of time. I note that the treating psychiatrist’s opinions are substantially corroborated by Dr Newlands, Dr Serry and Dr Hooper, as already referred to above. I accept that the treating psychiatrist was hopeful rather than optimistic as at February of 2009, but also consider that the evidence of the other three professionals who had seen the plaintiff prior to the second accident, and their opinions as to the permanency of the mental disorder that was then extant, probably carries the day that, as at that time, that is February 2009, the plaintiff was suffering from a severe mental disorder which was likely to be permanent.
The second accident
58 Senior Counsel for the defendant submits that the plaintiff’s contention that the second accident was only a temporary aggravation of her mental condition, ought not to be accepted in light of all of the evidence. I propose to accept this submission to the extent that it is likely, in my view, that the second accident has produced a permanent aggravation of the condition relating to the first accident. This is consistent with the opinions of the consultant psychiatrist for the Transport Accident Commission, Dr Ingram,[21] and the reports of Dr Serry dated 22 August 2012, 11 June 2013 and 27 August 2013.[22] In passing, I note that the latter report disagrees with the opinion of Dr Mendelson to the extent that the latter opines that the plaintiff exhibits learned pain behaviour. It is to Senior Counsel’s credit that he concedes that on balance, the treating psychiatrist’s opinions are to be preferred.
[21]exhibit N
[22]exhibit J
59 Intuitively, one would consider that both accidents had contributed to the plaintiff’s present mental state as recorded by the psychiatrists referred to above, but I accept Senior Counsel for the defendant’s submission that the analysis must be properly conducted as stipulated by the authorities of Petkovski v Galletti[23] and Altona Bus Lines v Lococo.[24] The latter authority permits compensation for –
“… the additional effects [those which became manifest in 1998] are consequences of the original injury.”[25]
[23][1994] 1 VR 436
[24][2002] VSCA 159
[25]Altona Bus Lines v Lococo (supra) at paragraph [12]
60 I accept counsel’s submission that it is speculative as to whether the first accident rendered the plaintiff vulnerable to the second accident’s effects, such that it could be properly said that both accidents materially contributed to the subsequent impairment and although, as I have stated, intuitively one would expect that there are additional effects which can be attributed to the first accident occurring after the second accident, it appears to me unnecessary to make such a decision, having found that the first accident had severe consequences as at February 2009, such that the chain of causation has not been broken with respect to those consequences, as a result of the second accident and, accordingly, the impairment with respect to the first accident can be considered to now be long term.
61 I would also consider that the consequences that existed as at February 2009 probably satisfied the definition of “long term” at that stage and I consider, on balance, that those consequences were likely to subsist for the foreseeable future after February 2009, without the supervening effect of the second accident. In particular, I am persuaded by the history taken by Dr Al Humrany in February 2009 and the subsequent need to increase the medication at that stage.
62 In all the circumstances, I consider that the plaintiff has proved on balance that she is suffering from a severe long-term mental or severe long-term behavioural disturbance or disorder as a result of the first accident, pursuant to s93(17) of the Act, and leave will be granted to issue proceedings in respect thereto.
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