Alievska v Transport Accident Commission
[2013] VCC 769
•1 August 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-08-00191
| MAZES ALIEVSKA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4, 5 and 6 June 2013 | |
DATE OF JUDGMENT: | 1 August 2013 | |
CASE MAY BE CITED AS: | Alievska v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 769 | |
REASONS FOR JUDGMENT
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Subject:LIMITATION OF ACTIONS – ACCIDENT COMPENSATION
Catchwords: Application for an extension of time in which to issue proceedings – where plaintiff’s solicitors failed to issue proceedings within time allowed – where plaintiff’s solicitors failed to advise the plaintiff of limitation period – serious injury – consequences of injury where plaintiff involved in two transport accidents in 1996 – whether the consequences of injuries suffered in either accident were “at least very considerable” – where injuries consisted of physical injury to the spine, and mental or behavioural disorder
Legislation Cited: Limitation of Actions Act 1958; Transport Accident Act 1986
Cases Cited:Brisbane SouthRegional Health Authority v Taylor (1996) 186 CLR 541; Bourke v Kecskes [1967] VR 894; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Damman v Peninsula Health [2012] VSC 572; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application for extension of time to issue proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton SC with Ms M Fitzgerald | Richmond and Bennison |
| For the Defendant | Mr G Lewis SC with Mr S Martin | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 Ms Mazes Alievska was involved in two transport accidents which occurred on 9 February 1996 (“the first accident”) and 26 September 1996 (“the second accident”). Both accidents occurred in Melbourne.
2 Initially, Ms Alievska sought the leave of this Court to issue proceedings to recover damages in respect of injuries suffered by her in both accidents. In written submissions delivered following the hearing of the application, Senior Counsel appearing for Ms Alievska advised that she no longer pursued her claim in respect of injuries suffered in the second accident.
3 Ms Alievska seeks leave to bring a claim for damages in respect of injuries suffered only in the first accident. Ms Alievska’s right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the TAA”). In order to obtain such leave, she must satisfy the Court that she has suffered a “serious injury” in the first accident.[1]
[1]Section 96(6) of the TAA
4 On 18 January 2008, solicitors acting for Ms Alievska issued an Originating Motion on her behalf seeking the following relief:
“The plaintiff seeks leave to commence proceedings for the loss of earnings and pain and suffering damages under section 93(17)(a) and (c) of the Transport Act 1986.”
5 It can be seen that no transport accident was identified. The reference to s93(17) appears to be a reference to the definition of “serious injury” contained in the subsection. I assume it was intended to refer to an application brought pursuant to s93(4)(d) of the TAA.
6 The application was listed for hearing on a number of occasions and adjourned on each of those occasions on application by Ms Alievska for a variety of reasons.
7 On 15 April 2013, the matter came before me for directions. Discussion occurred concerning whether it was appropriate for the Court to hear an application brought pursuant to s93(4)(d) of the TAA when, in the event that the application was successful, the defendant was likely to plead that such an action was issued out of time.
8 On the application then brought by Ms Alievska, I gave leave to the plaintiff to file and serve an Amended Originating Motion.
9 The relief sought in the Amended Originating Motion issued on 15 April 2013 was as follows:
“1The plaintiff makes application for leave to bring proceedings for the recovery of damages in respect of injuries sustained in transport accidents on 9 February 1996 and 26 September 1996, pursuant to the provisions of s93(4)(d) of the Transport Accident Act 1986.
2The plaintiff makes application for leave for an extension of time to bring proceedings for the recovery of damages in respect of injuries sustained in transport accidents on 9 February 1996 and 26 September 1996, pursuant to the provisions of s23A of the Limitation of Actions Act 1958.”
10 These applications are to be determined by the Court. I shall deal with them separately.
Background
11 Ms Alievska was born in Macedonia. She is aged forty-two. She immigrated to Australia with her family at the age of one. She attended school in Australia, completing Year 7. She and her family returned for a time to Macedonia, where she completed an additional year at school, before returning to Australia.
12 Ms Alievska worked for a number of employers including Kmart, a newsagency, a bakery, a jewellery store, and at a plant nursery. She was unemployed for a time.
13 When aged nineteen, she returned to Macedonia, where she married and gave birth to her first child. She returned to Australia with her husband and daughter in early 1991. Her second daughter was born in 1993.
14 In late 1994 or early 1995, she commenced a full-time traineeship with the Department of Employment, Education and Training (“DEET”). She was employed by DEET at the time of the accident in February 1996. Her duties there included reception, typing, preparation of documents, photocopying and mail work. The traineeship involved some attendances at a business college. She passed her subjects.
15 She enjoyed her work at DEET. Although it was not assured, she felt confident that she would be able to secure permanent employment with the public service.
Application to extend time
16 The first accident occurred when another vehicle drove into the rear of Ms Alievska’s stationary vehicle. She alleges that she suffered from pain in her lower back, right shoulder and neck. She consulted a general practitioner, Dr Thornton, at the Langton Medical Centre in Dandenong. Later that evening, on the advice of her father, she reported the first accident to the local police station. She made a statement to police and provided the name of the driver of the other vehicle involved.
17 Over the next few days her back pain became worse and soon after she saw a different general practitioner, Dr Turlakow, who she continued to see for a considerable time thereafter. She did not return to work because she was in pain.
18 Ms Alievska had trouble sleeping because of the pain, and suffered nightmares about the first accident. She became irritable with her husband and they had many arguments. Their relationship deteriorated. She continued to suffer from headaches regularly, back pain, neck pain, tingling in her hands, and weakness in her legs. Her concentration was poor. She attended a physiotherapist, Ms Rhodes, three times per week, and did hydrotherapy.
19 Dr Turlakow referred Ms Alievska to two specialists: Mr Khan, an orthopaedic surgeon, in early March 1996, and Dr Billimoria, a neurologist, in June 1996.
20 Ms Alievska underwent a number of investigations consisting of x‑rays, a CT scan, a bone scan and an MRI scan of her lumbar spine.
21 Soon after the first accident, Ms Alievska completed a claim for Transport Accident Commission (“TAC”) benefits. On 4 March 1996, the TAC advised her that she was not entitled to TAC benefits in relation to the first accident because she was entitled to ComCare benefits, the first accident having occurred in the course of her employment with the Commonwealth Government. She claimed benefits from ComCare.
22 ComCare arranged for examinations in May and June of 1996 by a rheumatologist, Dr Lewis, and a physician, Dr Stephenson. They provided reports, which were made available to the parties in this matter. Likewise, reports of Mr Khan and Dr Billimoria prepared in that period were available.
23 On 26 September 1996, the second accident occurred in similar circumstances to the first accident. Another vehicle collided with the rear of Ms Alievska’s stationary vehicle. Her car was pushed forward and at the time, she was concerned that a truck might collide with her vehicle. In the event, this did not occur.
24 Following the second accident, Ms Alievska alleges that she suffered further pain, flashbacks and nightmares.
25 It appears that she initially consulted solicitors, Ryan Carlisle Thomas, in or before November 1996, about two months after the second accident. That firm arranged for her to be seen by a surgeon, Mr Ritchie, on a medico-legal basis on 13 November 1996.[2]
[2]Plaintiff’s Court Book (“PCB”) 122
26 In early 1997, the TAC arranged for Ms Alievska to be examined by an orthopaedic surgeon, Mr Byrne, and by a psychiatrist, Dr Nathar.
27 In February 1998, Ms Alievska retained new solicitors, C V Kay, to act on her behalf. She stated that she was unhappy with Ryan Carlisle Thomas, because that firm had settled her ComCare claim without her instructions. Ms Alievska stated that C V Kay later advised her that their office in Richmond had burnt down and that her file was now unavailable.
28 It appears that in April 2000, Ms Alievska retained Macpherson & Kelley to act on her behalf. The solicitor at that firm handling her matter was Paul Simon. From that date until December 2012, Mr Simon continued to act as her solicitor in relation to her rights arising from the two accidents. It appears that Mr Simon left Macpherson & Kelley and practised for a time with M W Law, and later, with Simon Legal, until December 2012.
29 In December 2012, Ms Alievska retained her current solicitors, Richmond and Bennison, to act on her behalf. By that time, it was apparent that there was a prospect of her having legal rights against Mr Simon relating to a breach of the duty of care owed by him to her in failing to issue proceedings within the limitation period.
30 Ms Alievska’s cause of action in relation to the first accident arose in February 1996. Accordingly, the period in which she could commence a common law claim for damages expired in February 2002.
31 No application for an extension of time under s23A of the Limitation of Actions Act 1958 (“the LAA”) to bring proceedings for the recovery of damages in respect of injuries suffered in either accident was made until the Amended Originating Motion was filed on 15 April 2013. This date was a little over seventeen years after the accident.
32 The parties were in agreement that by reason of s40 of the LAA, the application falls to be determined pursuant to s23A thereof.
33 Section 23A(2) and (3) of the LAA provides as follows:
“(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
34 It is my view that subparagraphs (3)(c) and (d) are not relevant to this application. The remaining sub-paragraphs require consideration. The meaning of the word “disability” in subparagraph (d) is a reference to legal disability. There is no suggestion that Ms Alievska has at any time been under any relevant legal disability.
35 I note that the fundamental question to be determined is whether or not it is just and reasonable to order that the period within which an action for damages relating to the accident ought to be extended. The matters set out in s23A(3) of the LAA are not exhaustive but are plainly matters that the Court is directed to have regard to.
36 Between 1996 and 2012, the matter had a lengthy and somewhat confusing path to the current hearing:
(a) At some time before 13 November 1996, Ms Alievska consulted solicitors, Ryan Carlisle Thomas.[3] Thereafter, at virtually all times there was a solicitor acting for her generally in relation to her rights arising out of injuries sustained by her in one or both of the accidents.
[3]Defendant’s Court Book (“DCB”) 122
(b) The plaintiff had rights to ComCare benefits arising from the first accident and statutory rights to benefits under the TAA relating to the second accident. Her rights to ComCare benefits, or at least some of them, appear to have been resolved during the time Ryan Carlisle Thomas were acting for her.
(c) Ms Alievska’s statutory rights pursuant to the TAA were likely to have consisted of a claim for ‘no fault’ benefits such as weekly payments relating to loss of earnings, a claim for medical and like expenses, and a possible claim for lump sum compensation depending upon the extent of her impairment. In addition, there was the potential for a common law claim for damages in respect of both accidents. Both accidents occurred in circumstances where there was a likely finding that there had been negligence on the part of the other driver in colliding with the rear of her stationary vehicle.
(d) In order to bring a common law damages claim, it was necessary for Ms Alievska to establish that she had suffered a “serious injury” in one or both of the accidents in accordance with s93 of the Act.
(e) I accept that Ms Alievska had little knowledge of her legal rights, save for what she was advised by one or another of her solicitors. I further accept that the nature of those rights, even if explained wholly or partially to her, would have been somewhat confusing. Her rights at common law would have consisted of a lump sum award of damages made up of pain and suffering damages and loss of earning capacity damages. A reference to a lump sum claim or to a claim in respect of loss of earnings might arguably have been a reference to either her statutory rights or her common law rights.
(f) The correspondence between the TAC and various solicitors acting for Ms Alievska was also confusing, in that the TAC, at times, referred to the TAC claim number relating to the first accident when corresponding in relation to the second accident, and visa versa.
(g) At various times during 1999, 2000 and 2001, there was correspondence between the TAC and solicitors acting for Ms Alievska in relation to impairment assessments performed by the TAC. Between 1996 and 2002, most of the correspondence related to Ms Alievska’s claim for statutory benefits.
(h) Little consideration appears to have been given by any of those solicitors to her common law rights.
(i) On 28 September 2000, Macpherson & Kelley wrote to the TAC requesting it to determine Ms Alievska’s degree of impairment and to grant a serious injury certificate in respect of injuries sustained by her in “the [first] accident”.[4]
[4]PCB 233
(j) On 2 November 2000 (within the limitation period), the TAC wrote to Macpherson & Kelley about the request for an assessment of permanent impairment in respect of the first accident, noting that the request was not for ‘no fault’ benefits but rather with a view to potential common law proceedings.[5] The TAC requested the provision of medical evidence in support of the application.
[5]PCB 234
(k) On 15 January 2001, Macpherson & Kelley wrote to the TAC asking it to arrange medical appointments in order to assess Ms Alievska’s degree of impairment.
(l) On 14 February 2001, the TAC wrote to Macpherson & Kelley repeating its request for information relating to the requested impairment assessment of injuries sustained in the first accident.[6]
[6]PCB 240
(m) On 2 March 2001, the TAC wrote to Macpherson & Kelley advising that the file had been referred to a TAC impairment officer for consideration, and noted that the material relating to her earlier impairment assessment might be sufficient to make a determination in regards to the first accident.
(n) On 30 March 2001, the TAC wrote to Macpherson & Kelley advising that it had finalised Ms Alievska’s impairment determination relating to the first accident at 28 per cent. It pointed out that the impairment was below 30 per cent, and it followed that Ms Alievska’s injuries arising from the first accident were not deemed a “serious injury” pursuant to s93 of the Act.
(o) A serious injury application was not brought until January 2008.
(p) The six-year limitation period relating to a claim for damages arising out of the first accident expired on 9 February 2002. No application was made for an extension of time to bring an action for damages relating to injuries sustained in either accident until 15 April 2013.
(q) By letter dated 10 April 2007, M W Law (Paul Simon) wrote to the TAC enclosing documents relating to Ms Alievska’s request for a serious injury certificate. The letter does not identify to which of the two accidents the documents relate.[7]
[7]DCB 152
(r) However, on 16 May 2007, the TAC replied to M W Law, referring to the application for a serious injury certificate in relation to injuries sustained in both accidents. It pointed out that the application was a joint application and the injuries sustained in each accident had not been documented separately. The TAC advised that it was necessary that the application clearly specify the injury or injuries relied on by the applicant for each accident, noting that the TAC was required to make a separate decision in relation to each.[8]
[8]DCB 153
(s) On 18 January 2008, the Originating Motion referred to above was issued.
(t) On 30 January 2008, the TAC wrote to M W Law, advising that it had not received a response to its letter of 16 May 2007; that is, a request for identification of the injuries suffered in each of the two accidents.[9]
[9]DCB 155
(u) On 19 February 2008, the TAC wrote to M W Law, asking whether the Originating Motion related to the first or second accident, and noting that no serious injury decision had in fact been made by it in respect of the second accident.[10]
[10]PCB 247.2
(v) On 1 April 2008, M W Law wrote to the TAC, advising that the serious injury application (which I presume refers to the Originating Motion) related to the first accident only.[11]
[11]PCB 247.4
(w) Also, on 1 April 2008, M W Law advised Ms Alievska by letter that the TAC had indicated that they would make an assessment as to her degree of permanent impairment and serious injury within the next one to two months, and that if they accepted that her injury was a “serious injury”, the matter would not need to go to court but would be referred for a settlement conference.[12] That letter was inaccurate and, on any view, optimistic. It contained no reference to the fact that her application to the Court related solely to the first accident. It made no mention of the fact that the TAC had requested additional information as to the injuries sustained in each accident as far back as May 2007 to which no reply had been provided. Further, the letter made no reference to the fact that the limitation period in respect of damages claims for either accident expired some six years previously and that, on any view, it was likely or at least possible that an application for an extension of time would have to be made before any claim for damages could be made.
[12]PCB 247.3
(x) On 8 April 2009, M W Law served a number of medical reports and a letter from DEET on the TAC.[13]
[13]PCB 247.5
(y) On 15 May 2009, the TAC wrote again to M W Law, requesting a response to its letter of 16 May 2007 and requesting up-to-date medical evidence, particularly from treating doctors.[14]
[14]DCB 158
(z) On 5 June 2009, M W Law wrote to the TAC, enclosing an affidavit sworn by Ms Alievska (presumably the unsworn affidavit appearing at page 18 of her Court Book). [15]
[15]DCB 160
(aa) On 17 August 2009, the TAC wrote to M W Law, advising that it was considering Ms Alievska’s request for a serious injury certificate.[16]
[16]PCB 247.6
(bb) On 27 October 2009, the TAC wrote to M W Law, advising that it would not grant a serious injury certificate for the injuries sustained in either accident.[17]
[17]DCB 162
(cc) An inspection of Orders made by this Court reveals that the matter was listed for administrative mention on eight occasions between April 2008 and November 2009. On most of those occasions the mention was adjourned by consent.
(dd) On 11 January 2010, the matter was set down for hearing on 23 August 2010. The hearing date was vacated and the matter re-fixed for hearing on five occasions between November 2011 and September 2012; all, bar one, on application of Ms Alievska. The adjournments were sought and granted to enable her to obtain and serve further material in support of her claim.
37 The matter finally came on for hearing of the Amended Originating Motion on 3 June 2013.
38 The period of delay to which I am required to have regard commences on the date upon which the cause of action arose, rather than the date upon which the limitation period expired. In the case of the first accident, this is February 1996 to January 2008.
39 I shall turn to the matters to which I am required to have regard pursuant to s23A(2) and (3).
Reasons for delay
40 Mr Simon swore an affidavit on 15 October 2012. In it he set out details of a small portion of the correspondence referred to above. He stated that by reason of the correspondence with the TAC, he assumed that it did not intend to raise any limitation defence and that, acting upon that assumption, he continued to incur costs on behalf of Ms Alievska. He provided no reasons for the delay in bringing applications pursuant to s93(4) prior to the expiration of the limitation periods in 2002 or at any time before January 2008. In his oral evidence, he stated that Ms Alievska had always responded promptly to his requests of her for information. He did not suggest that the delays in the matter coming on for hearing lay at her feet.
41 Ms Alievska’s evidence was that she had frequently asked Mr Simon how the case was going and that he repeatedly assured her, in effect, that all was progressing well. He assured her that she did have a case. It was unclear as to which “case” he was referring.
42 Mr Simon drafted no fewer than six affidavits for Ms Alievska to swear or affirm between April 2006 and September 2012. Soon after the final application for adjournment was granted in September 2012, at a time she was represented by Gerald Nash QC, a seventh affidavit was prepared. It was sworn by her on 15 October 2012. Shortly thereafter, Ms Alievska retained new solicitors, Richmond and Bennison, to act for her. An eighth affidavit was affirmed by her on 13 May 2013.[18]
[18]PCB 39
43 I accept that Ms Alievska was at no time advised by any of the solicitors who acted for her of the full extent of her common law rights, her ability to challenge the decision of the TAC regarding its decision that she did not have a serious injury, or the relevance of or existence of any limitation period applicable to a claim for damages in respect of injuries suffered by her in either accident.
44 In the affidavit purportedly affirmed by her on 25 April 2012, Ms Alievska stated:
“I was not aware of the limitations period until advised by Paul Simon, my solicitor … .
I was not aware of my legal rights to claim against the Transport Accident Commission and subsequent claim for damages until advised by Paul Simon my solicitor in about October 2006 when I swore an affidavit in support of my Serious Injury Application to the Transport Accident Commission.”[19]
[19]PCB 25, paragraph 4; PCB 27, paragraph 11
45 Ms Alievska’s oral evidence was that, on the occasions when she signed documents relating to the case, Mr Simon would call at her home with the document for her to sign. She said he was always in a hurry; he asked her to sign them and she did so; she was not given the opportunity to read them. She said that she was never provided with a bible and not asked to say any particular words concerning the truth of the contents of the documents. I note that most of the affidavits tendered were said to have been sworn by her in the presence of Mr Simon.
46 She denied that Mr Simon had given her advice concerning limitation periods or common law rights to damages and did not know of such rights until September 2012 when she was provided with such advice by the barristers then acting for her. Those barristers advised her to make contact with the Law Institute of Victoria to find a new lawyer.[20]
[20]PCB 57, paragraph 107
47 In his affidavit sworn on 15 October 2012, Mr Simon made no reference to any advice given by him to Ms Alievska concerning these matters. He also gave oral evidence and was cross-examined. He said he had had discussions with Ms Alievska regarding issues of permanent impairment, a possible serious injury application and her entitlements. When asked questions relating to the circumstances in which she was asked to swear affidavits, he refused to answer such questions on the grounds that such answers might incriminate him.
48 I accept that Ms Alievska signed those documents in the circumstances deposed to in her oral evidence.
49 I accept her evidence that those parts of the affidavit said to have been sworn by her on 25 April 2012 were not correct and that she did not receive that advice from Mr Simon. I consider it likely that Mr Simon drafted paragraphs 4 and 11 of the affidavit in an attempt to protect his own interests.
50 I find that the delay in issuing an Originating Motion between 1996 and 2000 was probably not unreasonable in the circumstances. It is unclear as to exactly what Ryan Carlisle Thomas and C V Kay did in that period, but it seems likely that the former were actively engaged in the claim for ComCare rights. C V Kay may not have achieved much before it appears that their file was destroyed in an office fire. Ms Alievska’s injuries, it would seem, took some time to be identified and to stabilise. It would not appear that the delay should be laid at her feet. The defendant’s counsel did not make such a submission in cross-examination of her or in his final address.
51 I find the delay from 2000 in issuing an Originating Motion in respect of an application for an extension of time to commence proceedings in respect of her injuries was the fault of Mr Simon. By the time the limitation period expired in 2002, he had been acting for her for some two years. There is no evidence that such delay was attributable to Ms Alievska.
52 I also find the delay that ensued between 2000 and January 2008 in issuing a serious injury application in respect of injuries suffered by her in the first accident was the fault of Mr Simon.
53 Mr Simon did not appear to grasp the significance of the expiration of the limitation period or the principles relating to an application for an extension of time pursuant to s23A of the LAA. Further, he did not appear to understand the significance of the two separate accidents and the necessity to lead evidence as to what injuries had been suffered by her in each.
54 The defendant submitted that Ms Alievska was also to blame for the delay over this period. The delay of eight years from the time when Mr Simon commenced to act on her behalf (at Macpherson & Kelley) and twelve years from the date of the first accident should, it is argued, have caused Ms Alievska to make more determined enquiries as to what was going on and as to why the delay was as long as it was. I accept that many persons would have made such enquiries and, if necessary, sought a second opinion. It was pointed out that Ms Alievska had previously sacked Ryan Carlisle Thomas when she perceived it had not acted in her interests.
55 I find that Ms Alievska was a person with a basic education and that she was regularly reassured by Mr Simon that she had a case. I consider that, whilst Ms Alievska might have been wise to make further enquiries, this is probably much clearer in retrospect than it was to her at the time. In any event, I consider that any blame attaching to her was minor when compared to that of Mr Simon.
56 The issue as to the extent of Ms Alievska’s knowledge is clouded, to some degree, by the confusing range of rights arising pursuant to the ComCare legislation, the ‘no fault’ transport accident legislation and the common law (which would require her to pass through the s93 TAA gateway).
Prejudice to the Defendant
57 The defendant submits that, given the delay period of sixteen years, prejudice is inevitable.
58 It is correct to say that the period of delay is at the extreme end of the range.
59 The defendant submits that it has suffered both general and specific prejudice as a consequence of the delay in the issuing of proceedings with regard to injuries suffered in both accidents.
60 In relation to general prejudice, it relies on the comments of McHugh J in Brisbane SouthRegional Health Authority v Taylor.[21] I accept that the longer the period of delay, the more likely it is that a defendant will suffer some prejudice. The four broad rationales identified by McHugh J were:
[21](1996) 186 CLR 541 at 553-4
(a) As time goes by, relevant evidence is likely to be lost;
(b) It is oppressive and even cruel to a defendant to allow an action to be brought so long after the circumstances which gave rise to it have passed;
(c) People should be allowed to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them;
(d) Public interest requires that disputes be settled as quickly as possible.
61 The defendant submits, and I accept, that there were numerous instances in the course of evidence when Ms Alievska said she could not remember things that she was asked about. Examples were that she could not recall being prescribed migraine medication before the first accident; the reason for attendances upon Dr Ng in 1997; her reported lack of co-operation when examined by Dr Ratnayake in 2003; as to whether Dr Ratnayake had recommended certain treatment for her at that time, and the extent of damage to her car after the first accident compared with damage after the second accident. There were many times when, unsurprisingly, given the passage of time, she had difficulty recalling events dating back to the late 1990s and early 2000s.
62 I accept that it would be difficult for the defendant to investigate Ms Alievska’s prospects for continued employment with DEET or other Commonwealth departments, although the weight I give to that submission is reduced in the absence of evidence that the defendant has attempted to obtain such information since January 2008, when her Originating Motion was issued.
63 I accept that the defendant has unsuccessfully attempted to locate Dr Turkalow. He is, I consider, a relatively important medical witness who is unlikely to be available at a future trial.
64 Also relevant is the fact that between the dates of the respective accidents, the TAC appear to have scarcely been involved in investigating Ms Alievska’s injuries. This is because her claim for ‘no fault’ benefits was properly made to ComCare rather than under the TAA. Unsurprisingly, the TAC did not arrange for any examinations or reports concerning Ms Alievska until March 1997, when it arranged for her to be seen by Mr Byrne (orthopaedic surgeon) and May 1997, when it arranged for her to be seen by Dr Nathar (psychiatrist).
65 In short, I consider that there is likely to be both general and specific prejudice to the defendant caused by the delay in question.
Prospect of a suit against solicitor
66 There are a number of cases where the delay in bringing proceedings has been found to be largely or entirely due to the negligence of the plaintiff’s solicitor.[22] The prospect of the plaintiff having a cause of action against the solicitor is one matter to be taken into account in determining whether or not to grant an extension of time in which to issue a proceeding. I consider that it is relevant that there is a genuine prospect of such a suit; however, it is not conclusive. In this case, Ms Alievska had limited education, no independent knowledge of the law relating to her rights under the TAA, no knowledge of any limitation period or the consequences of such period expiring.
[22]Bourke v Kecskes [1967] VR 894; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Damman v Peninsula Health [2012] VSC 572 at [27]
67 I consider that there is no apparent bar or complication regarding a suit against Mr Simon. However, such an action is likely, in my opinion, to be a more complicated and lengthy hearing than a claim brought against the driver of the other vehicle. I note that Mr Simon, in giving evidence at the hearing, made no criticism of Ms Alievska’s conduct in the period in which he acted for her. Nevertheless, it is possible that he may, in due course, present a different version of events, thus making the outcome of such a claim more difficult to predict.
Did the Plaintiff act promptly and efficiently?
68 Ms Alievska plainly left the pursuance of her rights arising out of the two accidents to her solicitors. In a case such as this, I consider the remarks of Starke J in Anisiena[23] to be apposite. Ms Alievska had no knowledge of the relevant law or civil procedure. She relied, unsurprisingly, on her legal advisors. This is not a case where she was slow in responding to requests for information or action. She appears to be a victim of inadequate legal services.
[23]Supra
69 I do not consider that Ms Alievska’s actions, once she knew that the defendant’s acts or omissions might be capable of giving rise to an action for damages, were unreasonable.
The Plaintiff’s steps to obtain medical or legal advice
70 In the paragraphs above I have set out much of the history relating to the nature of legal advice received by Ms Alievska and its inadequacies.
71 I do not consider that Ms Alievska delayed in seeking medical advice, nor that she ignored advice received.
Conclusion with regard to extension
72 A number of authorities referred to me stand for the proposition that the trial judge in such an application must “synthesise” a number of competing considerations in arriving at a conclusion as to whether it is just and reasonable to grant the extension sought.
73 Looking at all of the circumstances of the application and at the matters set out in s23A(2) and (3), there are three aspects that stand out.
74 Firstly, on any view, the period of delay is very long and, in my view, and for the reasons described above, likely to give rise to general and specific prejudice to the defendant.
75 Secondly, I consider that Ms Alievska appears to have a strong cause of action against the solicitor who acted for her during the period from about 2000 to late 2012 – from before the expiration of the limitation period until some years after.
76 Thirdly, Ms Alievska took no steps to obtain further legal advice concerning her common law rights until about eight years after consulting Mr Simon in 2000. I appreciate that she had no legal training but eight years is a very long time during which, effectively, nothing had been achieved by Mr Simon. I considered she should have, at some stage over that period, demanded from Mr Simon full details of what was going on, or should have sought a second opinion.
77 In all of the circumstances, Ms Alievska has not satisfied me that it would be just and reasonable to grant the extension in respect of the proposed claim for damages in respect of injuries suffered in the first accident.
78 Although, strictly speaking, it is unnecessary to consider the remaining issue as to whether or not Ms Alievska has suffered a serious injury in the first accident, it is preferable that I do so in case my decision on the extension application is reversed on appeal.
Serious injury application
79 The term “serious injury” is defined in s93(17) of the TAA (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
80 In April 2012, Particulars of Injury relating to both accidents were filed on behalf of Ms Alievska. It was alleged that, in each of the first and second accidents, she suffered injuries as follows:
(a) Spine/lower back;
(b) Respiratory function;
(c) Right shoulder and arm;
(d) Psychiatric Disorder;
(e) Aneurism;
(f) Cardiovascular injury.
81 At the commencement of the hearing, Senior Counsel for Ms Alievska advised the Court that the relevant body function alleged by Ms Alievska to be lost or impaired was that of the spine (back and neck) and that, in addition, she claimed to have suffered a mental or behavioural disturbance or disorder that fell within part (c) of the definition.
82 In order that an injury be considered to be “serious”:
(a)the consequences of a physical injury must be serious to the particular applicant and, in the case of the alleged mental or behavioural disorder, must be severe;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[24]
[24] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
83 Ms Alievska alleges that the consequences of her injuries satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so. It is this issue which falls to be determined.
84 In order to succeed in her application, Ms Alievska must satisfy the Court that she suffered a serious injury in the first accident. It is not permissible to aggregate the injuries suffered in the two accidents in order to determine if one or more amount to a “serious injury” as defined. Insofar as Ms Alievska suffered further injuries in the second accident or suffered an aggravation of injuries suffered in the first accident, I should ignore them. This is a difficult process, in that I am required to assess what injuries were suffered in the first accident and what the current consequences of those injuries are.
85 Before February 1996, Ms Alievska had suffered from some migraines.[25] A CT scan of her brain was performed in October 1995 (about six months before the first accident) and was reported as normal.[26] A screen was fitted to her computer monitor which helped reduce her headaches.
[25]PCB 153; Dr Thornton.
[26]PCB 85
86 Otherwise, it would appear that she generally enjoyed good health. She had no problems with depression or anxiety.
87 Some 54 medical reports from 27 practitioners were tendered by the parties. Of these, only four related to examinations of Ms Alievska in 2012 or 2013; most related to examinations dating back many years. It is Ms Alievska’s current condition to which I must have regard in determining whether or not she has a serious injury.
Treatment between the accident and September 1996
88 In this period, Dr Thornton, Dr Turlakow, Dr Billimoria, Mr Khan and Dr Lewis saw the plaintiff for treatment. Dr Ritchie saw her on a medico-legal basis.
89 Dr Thornton had been her regular general practitioner. He diagnosed a hyperextension neck injury (whiplash) and lower back strain. He prescribed Codral Forte, Brufen and Valium for her neck and back, and told her to rest. He considered that, when he saw her on the day of the first accident, she was not in great distress. He noted that other unrelated problems were discussed at the consultation. He certified her unfit for work for four days.[27] It appears that she changed to Dr Turlakow as her general practitioner soon after. Dr Thornton reported that he did not see her again until about March 1999, but did not indicate what he saw her for at that time.[28]
[27]PCB 153
[28]PCB 153
90 In the period following the first accident, a number of radiological investigations were performed.
91 X-Rays of the spine in February 1996 showed some mid-thoracic scoliosis but nothing more.[29]
[29]PCB 98
92 A CT scan of the lumbar spine in March 1996 was reported as normal.[30] An isotope bone scan on the same date showed no abnormal activity. An ultrasound of the right shoulder on the same date was reported as normal.
[30]PCB 100
93 Ms Alievska states that her pain persisted and she saw Dr Turlakow. Four reports were tendered from him. The earliest, dated 19 June 1997, makes reference to an earlier report by him but this was not tendered. However, it is clear from other documents tendered that Dr Turkalow must have commenced seeing her by March 1996, when he referred her to an orthopaedic surgeon, Mr Khan, in March 1996, and to a physician, Dr Billimoria, in June 1996.
94 Dr Turlakov’s opinion as to what injuries had been suffered by Ms Alievska in the first accident is unknown. In June1997, he stated that she was hardly any better, if at all, since his previous letter (which is not in evidence). He noted additional complaints after the second accident as being left knee pain, right wrist pain, and more severe and more frequent head and neck pain.[31]
[31]PCB 125-6
95 In his report of 7 September 2000, Dr Turlakow states that he saw Ms Alievska after the first accident in relation to complaints of headache, neck pain, right chest pain, pain along the vertebral column from the atlas (by which I assume he means the first cervical vertebrae) to the sacrum. He stated that CT scans of relevant areas ordered by Mr Khan were normal save for a disc prolapse at L5-S1.[32] No CT scan report was tendered demonstrating any prolapse at that level. Reports from Mr Khan of a CT scan of her lumbar spine performed on 13 March 1996 and an MRI scan performed on 19 June 1996 were reported as a “normal scan”[33] and a “normal MRI lumbar spine” respectively.[34]
[32]PCB 127
[33]PCB 87
[34]PCB 89
96 Dr Turlakow appears to be relying on a letter to him from Mr Khan dated 4 April 1996 in which the latter refers to a CT scan as showing a small prolapse on the left side at the L5-S1 level. At that time Mr Khan considered no surgery was indicated.
97 Mr Khan had seen Ms Alievska in March and July of 1996. When seen in July 1996, he reported that she had sustained a soft-tissue or musculoskeletal jarring injury to her neck, low back and right shoulder girdle area. He considered that the long-term prognosis was guarded, as there was an element of functional overlay affecting her symptoms, and that she seemed to be suffering from a post-traumatic anxiety state and depression which might affect her rate of recovery. He thought it was highly likely that she would be left with a “partial, permanent impairment of function”[35] although he did not indicate whether this was likely to be the result of any physical injury. He next saw her in January 1997, some three months after the second accident. At that time she was limping badly and using a stick.
[35]PCB 116
98 No other doctor has indicated that there is evidence of a disc prolapse at the L5-S1 level. In his report of 7 October 2000, Mr Khan makes no mention of a disc prolapse relevant to her spine.[36] In his report of 2 June 2003, Mr Khan stated she had a mild discogenic problem in her lower back which did not require operative treatment. Even then he considered that her main problems were non-organic in nature and best dealt with by a psychiatrist or sympathetic general practitioner.
[36]PCB 118
99 A CT scan performed in February 1997 was reported as showing a very mild posterior disc bulge at L5-S1 and no evidence of focal disc herniation.[37]
[37]PCB 93
100 In May 1996, a rheumatologist, Dr Lewis, saw Ms Alievska on referral from Mr Khan. She presented to him in a seemingly disabled state. He considered she demonstrated significant pain behaviour. He described her as having a very complex problem. No definite pathological diagnosis could be made. He recommended that she continue with physiotherapy and be referred to a psychologist.[38] He considered there was no evidence of permanent physical disability but there was a significant possibility that she would develop a chronic pain syndrome.
[38]PCB 149
101 In May 1996, Dr Stevenson, a physician, examined Ms Alievska at the request of ComCare. She again presented in a disabled manner with a walking stick. He considered she displayed quite marked illness behaviours. She displayed gross limitation of movement of her spine. He conducted tests which showed non-organic reactions. Physical tests produced inconsistent results. He was unable to diagnose any physical injury. He thought the major factors in her presentation were psychosocially based.
102 At the time of her referral to Dr Billimoria in June 1996, her complaints were of pain in her neck and low back with tingling in her hands, more so on the left. EMG and nerve conduction studies were normal. Dr Billimoria considered that her hand symptoms were probably related to soft-tissue injuries to her neck. He reviewed her in July 1996 and came to the same conclusion. He did not consider that she had suffered any permanent impairment or that she was permanently incapacitated.[39]
[39]PCB 100, 101 and 103
103 Dr Turkalow referred Ms Alievska back to Dr Billimoria six years later, in January 2003. It is clear from his report of 30 January 2003 that he considered her condition then to be of a psychiatric nature.[40] She was again referred to him in November 2004, at which time she presented in a very disabled manner with a walking stick and demonstrating weakness of her lower limbs that Dr Billimoria considered pointed to a very significant functional or hysterical component. He advised her to get rid of her walking stick and to try and carry out normal everyday activities. He stated:
“The longer she plays the sick role, the more difficult it is going to be to get her back to any normal level of function.”[41]
[40]PCB 105
[41]PCB 106-7
104 Dr Billimoria stated that Ms Alievska did not suffer from any significant physical deficit.[42]
[42]PCB 109
105 The reports referred to above, as best I can determine, represent the views of those doctors who examined Ms Alievska at various times between the date of the first accident in February 1996 and the second accident in September 1996.
106 In summary, most of the opinions relating to that period were that Ms Alievska had suffered a soft-tissue injury to her neck, back and possibly her right shoulder that was not likely to be permanent or responsible for the disabled manner in which she presented to those doctors.
107 Although a referral to a psychologist had been recommended, it does not appear that she had been referred to any psychologist or psychiatrist before the second accident.
108 Ms Alievska did not return to work after the first accident.
The second accident
109 Dr Turlakow reported that the second accident set Ms Alievska back in her recovery from injuries sustained in the first accident. He reported that there were additional complaints after the second accident:
(a) pain in the left knee;
(b) pain in the right wrist;
(c) pains in the head and neck became much more severe and frequent.[43]
[43]PCB 125-6
110 The problems with the knee and wrist are not relevant to this application.
111 In May 2003, an MRI scan of Ms Alievska’s low back was reported as showing mild degenerative facet joint disease and very mild posterior disc bulges at the L4-5 and L5-S1 levels. The radiologist considered there were no significant changes from the MRI scan taken in June 1996.[44]
[44]PCB 96
112 A CT scan taken in June 2008 showed a mild broad-based posterior disc bulge at L3-4.
113 An MRI scan of her cervical, thoracic and lumbar spine in October 2011 was reported as showing:
(a) With regard to her cervical spine, a central disc protrusion at C4-5 which contacts and mildly indents the cord without cord signal change; at C5-6, a moderate broad-based disc bulge contacting the exiting left C6 nerve root.
(b) With regard to the thoracic spine, no abnormality.
(c) With regard to the lumbar spine, a mild disc protrusion at L1-2; a broad disc bulge at L2-3 with mild canal stenosis; a mild to moderate disc bulge at L3-4, worse to the right, with likely contact with the traversing right L4 nerve root; and at L4-5, a disc bulge likely to be displacing the transversing left L5 nerve root.[45]
[45]PCB 98
114 In her affidavit sworn on 21 September 2012, Ms Alievska stated that she was scheduled to have an MRI scan of her neck, spine and head on 5 October 2012. That MRI, if it was performed, was not tendered.
115 As previously indicated, Ms Alievska has been examined by many doctors between 1996 and 2013. I do not consider it necessary to repeat the contents of the many reports produced.
116 The opinions of those doctors who reported with respect to any physical injuries suffered by her can be summarised as findings of a likely soft-tissue injury, with no explanation for her ongoing symptoms.
117 Dr Billimoria saw Ms Alievska last in November 2004, after which he reported that she did not suffer from any physical deficit.[46]
[46]PCB 109
118 Mr Khan saw Ms Alievska last in June 2003 and reported that she had a mild discogenic problem in the lower back but that her main problems were non-organic.[47]
[47]PCB 121
119 Dr Ng, Ms Alievska’s general practitioner from October 2007 to August 2010, saw her on nine occasions over that period of nearly three years. Only one such consultation was for matters related to this application. In June 2008, she presented with complaints of acute low-back pain. He has not seen her since 2010.[48]
[48]PCB 155A-155J
120 Dr Ma, neurologist, has seen Ms Alievska on a number of occasions from October 2011. The history obtained by him was one of headache; chronic back and neck pain; right arm sensory symptoms; memory and cognitive deficit; peripheral vestibular dysfunction, and anxiety.[49] He arranged for cognitive assessment by Associate Professor Srikanth at the Cognitive Clinic at Monash Neurology, who reported no deficit.
[49]PCB 161
121 It appears that Dr Ma arranged a further MRI scan of Ms Alievska’s spine, which he considered showed:
(a) Disc herniation at L4-5, worse on the left, and at L3-4, worse on the right, which appeared to contact and displace the traversing respective nerve roots;
(b) Degenerative disc herniation in the cervical spine.
122 Dr Ma expressed the view that, on the basis of the history provided by Ms Alievska, her symptoms of vertigo, neck and back pain were “possibly related to the transport accident”.[50]
[50]PCB 162
123 During Dr Ma’s investigations, two intra-cranial aneurysms were found on an MRI scan of Ms Alievska’s brain. He reported that it was difficult to determine if this had been pre-existing or had developed over a period of time. He stated that it would be very difficult to link the existence of the aneurysms with the motor vehicle accidents of February or September 1996.[51]
[51]PCB 163
124 Dr Ma did not express a view as to what, if any symptoms complained of by Ms Alievska might be related to the existence of the aneurysms.
125 Dr Karantonis became Ms Alievska’s general practitioner in October 2011. He appears to have made the referral to Dr Ma. The only comment made by Dr Karantonis in his report concerning physical injuries was that:
“Ms Alievska has ongoing back injuries and chronic pain which she has attributed to her car accident.”[52]
[52]PCB 167
126 The medico-legal reports of Mr Kevin King;[53] Mr Schofield;[54] Mr Ritchie;[55] Dr Grinwald;[56] Dr Kostos;[57] Dr Ramage[58] and Professor McGrath[59] all date back more than ten years. I do not consider that they assist in a determination of the current consequences of any physical injury suffered by Ms Alievska in the first accident. In any event, I note that Mr Schofield, Dr Kostos and Dr Ramage found no physical injury or disability.
[53]PCB 172
[54]DCB 96A-C
[55]PCB 122
[56]DCB 82-85
[57]DCB 36-39
[58]DCB 67-72
[59]DCB 86-89
127 The strongest pointer to some organic explanation for Ms Alievska’s complaints of spinal pain is the report concerning the MRI scan performed in October 2011 apparently at the request of Dr Ma. However, he does not express an opinion that such findings relate to the first accident. Further, the CT and MRI scans performed in 1996, 1997, 2003 and 2008 are reported as showing no such findings. I do not consider that, in the absence of supporting evidence, I should infer that the changes noted in the 2011 scan can be attributed to injury sustained in the first accident.
128 I am not satisfied that Ms Alievska has discharged the onus upon her to establish she has suffered a serious injury as defined in sub-paragraph (a) of the definition of “serious injury” in s93(17) of the Act. I am not satisfied that she has established that any of the pain and suffering or pecuniary loss consequences alleged by her are consequences of any physical injury or that the consequences of any physical injury suffered by her could, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least very considerable and more than merely significant or marked.
129 Ms Alievska also claims to have suffered a “serious injury” as defined in sub-paragraph (c) of the definition, set out earlier in these reasons.
130 She has been treated or examined on a medico-legal basis by eight psychiatrists – in chronological order – Dr Nathar, Dr Conron, Dr Ratnayake, Dr Cole, Dr John King, Dr Manawadu, Dr Vadasseri, and Dr Epstein.
131 Dr Nathar examined Ms Alievska three times between May 1997 and July 2000 at the request of the TAC. Four reports were tendered.
132 The first examination occurred in May 1997. Although Dr Nathar’s report refers to an examination of five minutes, the content of it indicates this is likely to be a misprint. He concluded Ms Alievska was depressed with a somatoform pain disorder,[60] and that psychological factors explained her pre-occupation with pain on top of minor, if any, physical problems. He considered that these disturbances arose after the first accident and were then aggravated by the second accident.[61]
[60]I understand this to be a reference to a psychiatric disorder where there is a history of repeated physical complaints with no physical basis.
[61]DCB 12
133 Dr Nathar’s views appear similar following his second examination in September 1999.[62] He thought then that the prognosis looked poor, although with treatment there was a faint hope of improvement.[63]
[62]DCB 18
[63]DCB 19
134 Following his third examination in July 2000, he again expressed those views.[64] He was at a loss to suggest alternative treatment. Only disengagement with the legal profession offered any hope. He considered Ms Alievska was unemployable.[65] He thought she would need to continue psychiatric treatment, perhaps indefinitely.[66]
[64]DCB 30
[65]DCB 31
[66]DCB 34
135 In February 1998, Ms Alievska was referred by Dr Turlakow to a psychiatrist, Dr Conron. He took a history in which she could only remember one accident about a year earlier, following which she was taken to a casualty department.[67] Ms Alievska’s evidence was that, after the first accident, she drove her car home. After the second accident in September 1996, she was taken to a hospital where she was checked out.[68] The history taken indicates that the only accident about which she told Dr Conron was the September 1996 accident.
[67]PCB 132
[68]PCB 48
136 By the time of his report of May 1999, Dr Conron was aware of the two accidents, although he described Ms Alievska as a vague historian. At that time he considered that she suffered from a Post-Traumatic Stress Disorder and depression secondary to “her accident”. He prescribed the anti-depressant Zoloft, and Valium. He recommended assessment by a psychologist at the Pinelodge Clinic at Dandenong but she was reluctant to attend at that time. In his report of July 1999, he expressed the same diagnosis but, on that occasion, he attributed (without explanation) her condition to both accidents, particularly the first.[69] In his report of March 2000, he referred to her having taken a small overdose and having gone to Dandenong Hospital. There was no other evidence relating to this incident. Ms Alievska did not refer to it.
[69]PCB 137
137 In November 2004, Dr Conron considered Ms Alievska had no capacity for work outside the home. His diagnosis was unchanged.[70]
[70]PCB 144
138 In September 2003, Dr Ratnayake considered that Ms Alievska suffered from a Major Depressive Disorder. However, he thought that, with treatment, she was likely to recover completely from that condition and within six months be able to return to gainful employment. He noted her refusal of Dr Conron’s offer for treatment (at Pinewood) but noted that, once patients are firmly entrenched in a sick role, the gains from that sick role tend to prevent them from seeking appropriate treatment. The support provided by her family had perpetuated her sick role. I do not interpret that statement as suggesting that she was, at that time, malingering. Rather, that her condition made it difficult to become motivated to obtain treatment.
139 Dr Cole examined Ms Alievska in October 2004. She was un-cooperative and left before the session concluded. Dr Cole thought she was attention seeking and histrionic, and that he had reservations about her. However, he thought that if she was accepted, she was suffering from chronic depression and a mild Post-Traumatic Stress Disorder. He considered her unemployable should she present to a prospective employer as she did to him.[71]
[71]DCB 95
140 In September 2011, Dr John King considered Ms Alievska suffered from a Somatoform Disorder and an Adjustment Disorder with Mixed Anxiety, depression, and traumatic anxiety.[72] He considered that there was little prospect of change and expected that, whatever was done, her state would slowly deteriorate.[73]
[72]PCB 182
[73]PCB 183
141 After some initial reluctance, Ms Alievska was assessed at the Pinewood Clinic in February 2012 by Dr Manawadu. She presented to him with multiple somatic complaints – sleep disturbance; irritability; crying episodes; inability to perform domestic duties, and fear of travelling in a vehicle. He thought she had symptoms of depression and anxiety. He was then uncertain as to whether she had any other underlying psychiatric issues.
142 In April 2013, Dr Vadasseri considered Ms Alievska to be suffering from chronic Post-Traumatic Stress Disorder, Major Depression, and chronic persisting pain. By then she was prescribed the anti-depressant, Pristiq, which he increased. He further prescribed Seroquel at night. He thought she required ongoing psychological support. He thought the condition was directly related to the two accidents in 1996. He did not otherwise apportion the contributions of the two accidents to her current condition.
143 In April 2013, Dr Epstein considered the first accident had led to a Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the first accident, distress with reminders of it, increased concerns with regards to her safety and security, hypervigilance, emotional withdrawal and a sense of bleakness. The second accident had exacerbated her symptoms, both physical and mental. She had a Major Depressive Disorder of moderate severity. He thought her symptoms were permanent. He thought her inability to work after the first accident was mainly because of her physical symptoms but also because of her mental state.[74]
[74]PCB 197
144 Notwithstanding Ms Alievska’s somewhat unusual and widespread symptoms and her somewhat histrionic behaviour at times, no doctor expressed a view that she was malingering. I formed the view that she was an honest witness. Looking at all of the psychiatric evidence, I accept that it is probable she suffers from a Somatoform Disorder, Post-Traumatic Stress Disorder with a Major Depressive Disorder.
145 I further take into account that many of the specialist neurologists and surgeons referred to above also considered that she suffered from psychiatric disorders.
146 In determining the consequences of such disorders, Ms Alievska’s credit needs to be considered. Counsel for the defendant pointed to various inconsistencies in her evidence but I do not regard these as being of great moment. Her lack of cooperation with some examiners is consistent with her irritability and mood swings referred to by psychiatrists. Criticism was made of her lack of memory of events that took place many years ago. I do not regard this as surprising or indicative of dishonesty or evasiveness. I accept she has a fear of car travel. I do not regard this as being inconsistent with driving a car for short trips or with her travelling as a passenger from Melbourne to destinations such as Eildon or Phillip Island on isolated occasions.
147 On balance, I consider that the consequences to Ms Alievska of that injury are:
(a) A perception of severe and debilitating pain experienced by her;
(b) Depression and Anxiety;
(c) Difficulties with memory;
(d) An inability to work for more than sixteen years;
(e) Insomnia
(f) Nightmares and flashbacks;
(g) Mood swings;
(h) Reduced social life; and
(i) The need to take anti-depressant medication over many years.
148 I have taken into account that Ms Alievska did travel to Macedonia by plane in 2009 and again in 2012 to visit her family. She was accompanied on these trips by one or more family members. Whilst such trips might tell against her pain and limitations being physically based, I do not consider that such activity is necessarily inconsistent with the psychiatric disorders from which I have found she suffers.
149 I also take into account that Ms Alievska has suffered from unrelated conditions which would have been disturbing for her. These include Deep Vein Thrombosis, pulmonary embolism, a skin problem and high blood pressure. I do not consider these issues have been of significance.
150 The evidence of the psychiatrists referred to is strong, that Ms Alievska is and has been unable to work for many years. I accept that Ms Alievska’s psychiatric disorders have prevented her from working for more than sixteen years. I consider that this factor and the other consequences of injury referred to above lead me to conclude that her mental or behavioural disorder is both severe and long term.
151 The defendant submitted that, even if that were the case, Ms Alievska had not established that her disorder was a consequence of the first accident and that it was the second accident that was a more important cause.
152 I accept that Ms Alievska’s condition was aggravated in the second accident. Further, it has become more difficult to determine the degree of contribution of each of the accidents as time has passed. However, I consider it is important that Ms Alievska showed symptoms of mental or behavioural disorder soon after the first accident. She was prescribed Valium and Zoloft as early as April 1996.[75] By July 1996, Mr Khan considered that there was an element of functional overlay affecting her symptoms and that she was suffering from a post-traumatic anxiety state and depression.[76] It should be noted that Mr Khan expressed this view in his report of 27 November 1996 (after the second accident) but that, at that date, he had not seen Ms Alievska since the previous July.[77]
[75]PCB 113
[76]PCB 115
[77]PCB 114
153 Although the second accident probably did aggravate her disorder, I am satisfied that the injuries sustained in the first accident are a significant cause of her current disorders referred to above. The evidence of Dr Nathar,[78] Dr Ratnayake[79] and Dr Conron supports that conclusion. Other psychiatrists did not address the issue of contribution between the two.
[78]DCB 30
[79]DCB 64
Conclusion
154 With regard to the application under s23A of the LAA, Ms Alievska has not satisfied me that it would be just and reasonable to grant the extension sought. That application is dismissed.
155 Had I reached a different view regarding the application under s23A of the LAA, I would have found that Ms Alievska had suffered a “serious injury” within the meaning of that term as defined in part (c) of the definition in s93 (17) of the TAA.
156 I shall hear the parties in respect of costs and other consequential orders, if any.
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