Appelbee v Transport Accident Commission
[2012] VCC 9
•3 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-05056
| DENISE VERONICA APPELBEE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24 and 25 November 2011 | |
DATE OF JUDGMENT: | 3 February 2012 | |
CASE MAY BE CITED AS: | Appelbee v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 9 | |
REASONS FOR JUDGMENT
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Catchwords: s.93 Transport Accident Act 1986 – serious injury – concussive head injury and psychological sequelae – insufficient evidence of ongoing underlying brain pathology as a cause of cognitive deficits – application under paragraph (c) of the definition of serious injury – whether other major life stressors were responsible for the plaintiff’s current mental state – whether consequences of impaired mental functioning could be described as “severe”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Fiona Ryan | Holding Redlich |
| For the Defendant | Mr Rod McNeil Mr Clive Madder | Solicitor to TAC |
HER HONOUR:
INTRODUCTION
1 By originating motion filed on 8 November 2010, the plaintiff seeks leave to bring proceedings for damages for injury suffered by her as result of a transport accident on 13 December 2004. On this date, so the plaintiff said, another vehicle facing in the wrong direction entered the lane in which she was driving and collided with the right front side of her vehicle ("the accident”).
2 According to the plaintiff she “felt the impact through (her) arms and right leg and felt (her) neck and jerk forward as (her) body lifted from the seat and fell sideways." The plaintiff believes that she knocked her head and face on the window. Moreover, the plaintiff said that she had no memory of events for a few minutes following the accident.[1]
[1]The Plaintiff's first Affidavit at paragraph 8 and Plaintiff’s Court Book ("PCB") 7
3 The plaintiff alleged a number of injuries resulting from the accident: concussive head injury with cognitive impairment, injury to the cervical and lumbar spines, bilateral carpal tunnel syndrome, Chronic Major Depressive Disorder with somatisation features and anxiety disorder with avoidance behaviour.[2]
[2]PCB 5 and Transcript (“TN”) 1
4 As to her physical injuries, at hearing, without also addressing any injury to any other body functions resulting from the accident, the plaintiff submitted that the accident had caused a mild concussion, in association with a loss of consciousness for a few seconds. The defendant conceded a likely bump to the plaintiff’s head causing a mild concussive injury.[3]
[3]TN 16-18 and 172
5 The application is made pursuant to s.93 of the Transport Accident Act 1986 (“the Act”). Sub-section 93(6) prohibits me from giving leave unless I am satisfied that the injury in relation to the accident is a serious injury which exists at the date of my determination of this application for leave. [4]
[4]Swannell v Farmer [1999] 1 VR 299 at 310
6 Relevantly, sub-s.93(17) defines “serious injury” under paragraphs (a) and (c) as:
“(a) serious long-term impairment or loss of a body function; or
(b) … ; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder ” ("the definition")
7 Serious injury is determined by considering the consequences of an injury-related loss of body function or mental or behavioural disturbance or disorder.
8 Where, as in this application, the injury suffered likely involved both an injury to the plaintiff’s head and mental consequences, sub-s. 93(17) requires that I determine whether the appropriate test arises pursuant to paragraph (a) or (c) of the definition.
9 Having previously expressed the view that the plaintiff suffered permanent and irreversible brain damage as a result of the impact of the collision[5] in his final report dated 21 November 2011, the treating psychologist, Mr Stapleton, clearly accepted that the accident had caused the plaintiff's impaired functioning. This was his opinion irrespective of whether the plaintiff's impaired functioning was predominantly due to organic brain damage or the psychological sequelae ("Denise continues to function at the highest levels of depression, anxiety and stress").[6]
[5]PCB 119
[6]PCB 129
10 Relevantly, there has been no detailed brain imaging. The results of neuropsychological testing for ongoing brain pathology following the accident and the accompanying specialist evidence are not conclusive of this issue. For instance, the plaintiff was first referred for testing by treating neurologist, Dr Hjorth. Following an assessment on 24 February 2006, neuropsychologist, Dr Kotzmann relevantly reported to Dr Hjorth that:[7]
[7]PCB 185 (b)-(c)
Test results reveal marginal lowering in recent memory and working memory ability together with slowing in information processing. This occurs in the presence of otherwise intact performances across a range of measures reflected in an overall pro-rated IQ of 119. The reason for the changes noted is not apparent. Whilst there is a history of Ms Appelbee having hit her head in a motor vehicle accident in December 2004, the details reported would be consistent with a minor injury in which there was no period of retrograde amnesia or post-traumatic amnesia nor a significant period of loss of consciousness, if at all. Ms Appelbee was observed but not admitted to hospital at the time and later CT of brain reportedly did not reveal abnormality.
While she may have sustained a mild concussive head injury, this would not be expected to result in ongoing organically based cognitive sequalae. I do not have independent documentation of her reports cerebral episode and I have relied on a history provided by Ms Appelbee. It is possible that she sustained a post-traumatic stress disorder although she did not exhibit the consternation of signs and symptoms which characterises condition. She does however, demonstrate mildly reduced concentration and, I suspect, anxiety associated with a reported accident which may well be contributing to her memory deficits and slower mental processing. Overall, I consider her prognosis to be favourable and I think she may be reassured that she is unlikely to sustain permanent organic changes associated with that event.
11 The results of subsequent evaluation by neuropsychologist, Prof Anderson, who assessed the plaintiff at the request of her solicitors in February 2009, were, she said, consistent with some cognitive impairment due to mild brain injury,[8] although she too emphasised the likely role of psychological factors in producing ongoing cognitive sequelae.
[8]PCB 147
12 Notably, Prof Anderson's testing also revealed deficits in the plaintiff's working memory, a slowing in the speed at which she processed information and a reduction in her new memory and learning skills which impacted on the plaintiff's ability to retrieve information from memory efficiently.
13 Neurologist, Dr Waterston, examined the plaintiff at the request of her solicitors on 11 December 2008 and on 14 July 2011. Relevantly, testing of the plaintiff's cognitive functioning (by using the Montréal cognitive assessment) in December 2008 produced a borderline result some of which Dr Waterston believed was related to the plaintiff's attentional problems.[9] In any event, by July 2011, having also received copies of psychological and psychiatric opinions as well as the results of the tests performed by Dr Kotzmann and Prof Anderson, Dr Waterston, without excluding the possibility of some underlying cognitive impairment due to a mild brain injury, nevertheless concluded that the plaintiff's cognitive difficulties ("she seems to have deteriorated during the last couple of years"[10]) were likely due to psychological dysfunction.[11]
[9]PCB 132
[10]PCB 140
[11]PCB 143
14 When clinical neuropsychologist, Dr Stuart, assessed the plaintiff at the request of the defendant in October 2011, he had the benefit of Dr Kotzmann's report and the test results to which both Dr Waterston and Prof Anderson had referred in their reports.
15 Dr Stuart found no evidence of accident-related organic impairment of the plaintiff's neuropsychological functioning, although Dr Stuart's testing nevertheless revealed severe attentional difficulties, a marked lowering in the span of the plaintiff's working memory as well as a marked slowing in the speed of her information process, deficits he attributed to a severe emotional reaction to the accident, aggravated by other stressors such as the deaths of the plaintiff's parents and the breakup of her marriage.[12]
[12]DCB 49
16 Relevantly, Dr Stuart stated that his results, obtained more than five and a half years later, were consistent with Dr Kotzmann's results save for the fact that his tests revealed "marked" deficits in the plaintiff's working memory and the speed at which she processed information.[13]
[13]DCB 49
17 Notably, the psychiatrists Drs Neill and Weissman (who assessed the plaintiff at the request of her solicitors on 17 June 2008 and on 7 June 2010 respectively) and Dr Stern (who assessed the plaintiff twice, on 20 February 2009 and on 4 October 2011 at the request of the TAC) all had regard to Dr Kotzmannn's report, although Dr Weissman also had the opportunity to consider reports submitted by Dr Waterston and Prof Anderson, which no doubt helped inform his opinion that there remained a possibility that underlying brain pathology continued to contribute to the plaintiff's cognitive problems.[14]
[14]TN 104
18 The psychiatric evidence, nevertheless indicates that cognitive deficits identified on neuropsychological testing and those manifested by the plaintiff during psychiatric assessment were mediated either solely or predominantly by mental factors.[15]
[15]See Dr Neill's report at PCB 40, Dr Weissman's report at PCB 179 and Dr Stern's reports at DCB 25 and 40
19 The plaintiff has consistently attributed any deficits in her functioning to organic factors rather than to any psychological or psychiatric sequalae to the accident.[16] Nevertheless, based on the available evidence I could not be satisfied that underlying brain pathology continued to contribute to the cognitive deficits of which the plaintiff complained.
[16]See for example the report of Doctor Neill at PCB 37 and TN 61
20 Irrespective of whether the deficits identified are driven in part by any ongoing underlying brain pathology or solely by the plaintiff's mental reaction to her injury, the results of the sequence of specialist neuropsychological investigation and their reports (including the conclusions reached by at least Drs Neill and Weissman) support a finding that the plaintiff's cognitive functioning has deteriorated between the first testing date and October 2011 when Dr Stuart undertook the most recent evaluation.
21 Allowing for the specialist evidence I have summarised, at hearing, not surprisingly, through her counsel the plaintiff relied solely on paragraph (c) of the definition[17] and on her psychiatric reaction to a minor head injury that in its consequences she submitted were both long-term and severe.[18]
[17]PCB 5 and TN 1
[18]TN 8-9, 19 -20 and 196
22 Under paragraph (c) the consequences of the mental or behavioural disturbance or disorders to the plaintiff must be both long-term and “severe”, the latter being a word which connotes something “of stronger force” than the word “serious”.[19]
[19]Mobilio v Balliotis [1998] 3 VR 833, 834-5 and 846
23 As Appeals Justice Chernov explained in Richards v Wylie,[20] where the dominant cause of the plaintiff's condition consists of mental or psychological factors, any accompanying physical incapacity (in this case, her impaired cognitive function) may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long-term.
[20][2000] VSCA 50 at paragraph 28
24 As to the nature of the injury to her psyche, the plaintiff relied particularly on the diagnoses of psychiatrists, Drs Neill and Weissman.
25 Both through his report and evidence at hearing, Dr Weissman substantially adopted Dr Neill's opinion that whilst the plaintiff's mental state had stabilised:
· as a result of the accident the plaintiff had suffered and continues to suffer from a Chronic Major Depressive Disorder with somatisation features and prominent cognitive symptoms and from an anxiety disorder with avoidance behaviour;
· the plaintiff's psychiatric prognosis was uncertain and guarded.[21]
[21]PCB 40 and 179
26 Dr Stern, on the other hand, diagnosed chronic adjustment disorder with mixed anxiety and depressed mood. Amongst the matters I took into account in preferring Dr Weissman's diagnosis were:
· Dr Weissman's opinion offered during cross-examination, that the symptoms with which the plaintiff presented fulfilled the criteria for a more severe form of depression, Chronic Major Depressive Disorder rather than "merely" an adjustment disorder,[22] a conclusion no doubt also reached by Dr Neill in 2008. Moreover, a finding that the plaintiff is likely suffering from a more severe form of depression generally accords with the treating psychologist's diagnosis and the most recent neuropsychological evaluation;
· as also noted by Dr Weissman during cross-examination, the unexplained failure of Dr Stern in his final report to offer a diagnosis in respect to the cognitive and post traumatic stress symptoms to which each of his reports referred.
The defendant’s contentions
[22]TN 110-111
27 Essentially, the defendant defended the application on two bases. The first was that major life stressors occurring subsequent to the accident were responsible for the plaintiff's current mental state.[23] These included her involvement in further motor vehicle accidents, the deaths of the plaintiff's parents,[24] her daughter having been diagnosed in 2009 with Asperger's syndrome, her separation (also in 2009) from her husband, her failed business ventures, her financial difficulties and her other health issues.
[23]TN 3-4
[24]Apparently the plaintiff's mother died just before Christmas 2005 (TN 67), whereas her father probably died in 2007
28 Depending on their knowledge of these matters, generally speaking, each of the treating and medico-legal doctors concluded that the occurrence of some or all of the events summarised above had exacerbated/aggravated the plaintiff's mental state. There was, however, some conflict in the evidence about whether the plaintiff's mental state following the accident had caused or was a cause of events such as the failure of her marriage. Two questions emerged from this evidence. The first was the extent to which, if any, other psycho-social stressors arising since the accident had impacted and continued to impact on the plaintiff's mental state? The second was which, if any, of these stressors were directly or indirectly caused by the accident?
29 For instance, in 2008 prior to the breakdown of the plaintiff's marriage, Dr Neill appeared to accept that there was a causative relationship between the changes to the plaintiff's behaviour following the accident and the strained relationship reported by the plaintiff in a hitherto good marriage.[25]
[25]PCB 39
30 The plaintiff’s case is put at its highest by the psychologist, Mr Stapleton, who agreed with the plaintiff's statement that her marriage breakdown was a long-term consequence of the injuries suffered in the accident. I think it reasonable to accept that over the long course of a therapeutic relationship, Mr Stapleton had gained considerable insight into the factors impacting on the plaintiff's daily activities and on her relationships, particularly with her husband and daughter and, it follows, that he was very well-placed to draw this conclusion.
31 Dr Weissman likewise saw a causal nexus when he reported that this event was in part caused by the accident, although he also characterised the husband's departure from the marriage as an unrelated event.[26]
[26]PCB 179
32 In any event, it follows from Dr Weissman's responses during re-examination that even if other stressors (such as the plaintiff's concern over her daughter's diagnosis) were excluded from consideration, in his opinion the accident "was certainly" the major cause of the plaintiff's ongoing psychiatric condition.[27]
[27]TN 114
33 Dr Stern, on the other hand, without any further explanation, in February 2009 categorised the plaintiff's past history of depression, the two subsequent motor vehicle accidents and what he described as "her daughter's problems" as unrelated events, which were nonetheless relevant to the plaintiff's current psychiatric state.[28] However, by October 2011 the only so-called unrelated factors on which Dr Stern focused were the daughter's Asperger's condition and the greater responsibility for the care of her daughter assumed by the plaintiff since the departure of the plaintiff's husband.[29]
[28]DCB 24
[29]DCB 40-41
34 Other than its likely role in the breakdown of the plaintiff's marriage, there is no evidence to suggest that the accident directly caused the events to which Dr Stern referred. However, I must still decide whether, for example, the plaintiff's mental reaction to her injury (and her related cognitive deficits) compromised her ability or, as her counsel submitted, left the plaintiff vulnerable when dealing with these and future life stressors.[30] If the plaintiff's mental state and attentional deficits made it harder for her to deal with a child with behavioural and learning difficulties (more so since the child was diagnosed and the absence of the father) there is a cause and effect which is relevant to determining the true impact of the plaintiff's impaired mental functioning following the accident.
[30]TN 213-214
35 Secondly, the defendant submitted that even were the Court to find that the plaintiff's current mental state was accident-related, the consequences described and taken as a whole were not on the evidence severe.[31] In this regard the defendant relied on the plaintiff's failure to seek active psychiatric treatment and, despite specialist recommendations for pharmacological intervention (for instance, Dr Weissman felt that this may help control the plaintiff's worst symptoms and prevent deterioration in the future[32]) her ongoing preference for natural remedies over a therapeutic trial of antidepressant medication.[33]
[31]TN 181 and 193-195
[32]PCB 182
[33]TN 61 and see the reports of Drs Neill and Weissman at PCB 42 and 182 respectively
36 Whilst I accept that the necessity for treatment, including the need for antidepressant medication and any side-effects of medication are relevant to assessing the severity of the consequences of a mental reaction to the head injury,[34] for the reasons explained throughout this judgment, in this case I have treated the failure to seek and undergo psychiatric treatment as a neutral factor. It neither advanced nor detracted from the submission that any accident-related impairment of plaintiff's mental functioning was serious in the sense required by the Act. This was because, whilst the plaintiff could not rely on any history of psychiatric treatment, she could nevertheless, and did, rely on ongoing therapies and counselling with her treating psychologist[35] and on the recommendations for psychiatric assessment and/or pharmacological intervention made by specialists, Drs Neill, Weissman, Waterston and Stuart.
The evidence called and tendered
[34]See Hunter v Transport Accident Commission and another [2005] VSCA 1, the third last paragraph
[35]TN 125
37 Subject to amending one minor matter in paragraph 4 of her first affidavit, the plaintiff deposed to the accuracy of her three affidavits sworn on 13 May 2010, 25 March 2011 and 21 November 2011 respectively.[36] She was cross-examined at length.
[36]TN 26-27
38 The material tendered by the plaintiff consisted of her Court Book from which a number of documents had been removed and to which the report addressed to Dr Hjorth by Dr Kotzmann and dated 14 March 2006 was added.[37] The plaintiff also tendered the report prepared by the defendant's specialist, Dr Stuart and dated 9 November 2011.[38]
[37]Exhibit P1.
[38]Exhibit P2
39 The plaintiff's friend, kinesiologist, Margaret Kaye Howden, and the plaintiff's brother, retired secondary school teacher, John Joseph George Appelbee both swore their affidavits in support of the application on 18 November 2011. By agreement, the two sentences in paragraph 9 of Ms Howden’s affidavit to which the defendant objected were excluded from the evidence tendered. These witnesses were cross-examined, as was Dr Weissman. The affidavits of other friends, who were not required for cross-examination, Robyn Robertson and Karen Doyle were sworn on 18 and 19 November 2011 respectively were also included in the tendered materials.
40 The defendant tendered its Court Book, from which a number of documents had been removed.[39] In addition, the defendant tendered extracts from the medical records of the Cranbourne Medical Centre, pages 63, 112 and 116 of the plaintiff's Court Book,[40] a copy of the TAC claim for compensation form,[41] letters from the plaintiff to TAC dated 11 April 2005 and 20 May 2009,[42] a copy letter from Centrelink to the plaintiff dated 17 November 2011[43] and six pages extracted from the Peninsular Health record.[44]
[39]Exhibit D2
[40]Exhibit D1
[41]Exhibit D3
[42]Exhibit D4
[43]Exhibit D5
[44]Exhibit D6
41 The plaintiff's credit was not put in issue. I assessed her as a straightforward and credible witness. I found no evidence of embellishment. If anything, consistent with the test results to which I have referred the plaintiff presented as an intelligent woman who appeared genuinely anxious and who at times during the hearing was upset by her inability to recall even recent events and who also at times struggled to maintain her level of concentration.
The plaintiff’s background
42 Much of the evidence concerning the plaintiff's background was contained in her three affidavits.
43 The plaintiff is 55 years of age. She separated from her husband in 2009. They have a 12-year-old daughter, who was diagnosed with Asperger's syndrome during 2009.
44 The plaintiff completed her HSC but not the various university courses or studies for a certificate in horticulture commenced subsequent to this.
45 There followed some 20 years working as an administrator in the Commonwealth public service, which she left in 1995 after being sexually harassed by a manager.
46 In the four years preceding the birth of her daughter in October 1999, the plaintiff worked as a manager in private health organisations and as an employment consultant whilst at the same time establishing a tai chi business with her husband, the latter apparently endorsed by the Golden Lion Academy.
47 In about 1983 and again in about 1995 the plaintiff underwent limited periods of psychological counselling. The first period of counselling followed a brother's sudden death. The second involved treatment for anxiety and depression after she had been sexually harassed at work.
48 In any event, consistent with the unchallenged evidence of another brother ("She was bright, happy and on top of a very busy life"[45]) and the friends who deposed to having known at the plaintiff prior to the accident, the plaintiff was, as claimed by her, a highly organised person who led an active and dynamic life as a mother, wife, friend and businesswoman. Indeed, based on all the evidence, prior to the accident the plaintiff was likely a high functioning and intelligent individual (and, as she emphasised at one stage in response to cross-examination, currently there is nothing wrong with her intelligence[46]).
[45]PCB 24
[46]TN 80
49 According to the plaintiff prior to the accident, she:
· ran a well ordered household;
· spent 30 hours per week working in the business, commenced with her husband in 1996, and also managed its paperwork without difficulties;
· had a good relationship with her husband and child. I was not satisfied that of itself the medical record made in 2000 to the effect that there had been earlier “domestic disharmony (not depressed),”[47] should be read as indicating to the contrary;
[47]Exhibit D1 at page 116
· had a good memory, above average communication skills and was a confident (and by all accounts a very competent) tai chi instructor who, as she said during cross examination, had no difficulty in staying ahead of her students;[48]
[48]TN 94
· was a confident and motivated person;
· enjoyed reading, creative writing and painting in her leisure time.
50 This represents the starting point for measuring the plaintiff's losses. By all accounts the plaintiff's intellect remains intact. However, she now suffers from depressive and anxiety disorders with related functional deficits which appear to impact on all aspects of her life.
51 In Dwyer v Calco Timbers Pty Ltd (No 2 )[49] Appeals Justice Ashley relevantly explained that the significance of what the plaintiff claims to have lost by reason of her mental response to head injury may be informed to some extent by what she has retained.
[49]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph 27
52 During cross-examination the plaintiff clearly showed that, amongst other things, she had:
· retained some ability to recall and explain her personal and business affairs and the running of the business operated in partnership with her husband. Although accepting as I have the truthfulness of the responses given by the plaintiff I was struck by how often throughout the course of cross-examination and re-examination the plaintiff said she could not recall even recent events;
· continued to hold offices in and sign annual statements (prepared by their mutual accountant) for a corporate entity due to be wound up as part of the plaintiff's settlement with her husband;
· driven to places such as Meriumbula and Echuca and continued to drive the 10 to 35 minutes required to attend halls (at Mt Eliza, Balnarring and Kooratang) to teach students on Tuesday and Wednesday of each week. However, the plaintiff said that as a consequence of her impaired functioning she no longer accepted new students and that she was winding down the business with a view to dissolving it;
· made some decisions (albeit poor ones) at the instigation of her husband and friends to invest in nightclub and tattoo parlour businesses;
· substantially completed the TAC claim for compensation form[50] witnessed by her husband on 17 March 2005 and directed correspondence to the TAC, although as she also advised the TAC her correspondence had taken much longer to write due to her ongoing deficits;[51]
· in 2011 taken on the task of home-schooling her daughter who has learning difficulties and had been distressed by harassment and bullying.[52] This, the plaintiff said, involved accepting responsibility for her daughter's educational needs, including some teaching as well as arranging her daughter's sporting and recreational activities. However, the plaintiff also explained that on the advice of her treating psychologist (an educational psychologist), who expressed a preference for leaving her daughter in the school system, the plaintiff had enrolled her daughter in Distance Education, which means that a curriculum is posted to her and she has access to a teacher.[53] Moreover, during re-examination the plaintiff explained at some length that she often slipped behind and was recently reminded that she had not returned an adequate amount of work for her daughter for the year. This was something the plaintiff attributed to being unable to find the ability to get around to sitting down with her daughter to help her through the curriculum.[54]
[50]Exhibit D3
[51]Exhibit D4 and TN 78
[52]TN 69
[53]TN 71
[54]TN 92-93
53 In my view, allowing for the matters summarised above and on a fair reading of all of the evidence (discussed in greater detail below), there was no substance to the defendant's submission that the plaintiff's evidence during cross-examination, in which she described the level of her functioning ("...having faced this tsunami of additional life events... (the plaintiff) gave extraordinary testimony yesterday about how she has coped with all of these various life stressors that have come her way, including the extraordinary situation of her daughter"[55]) conflicted with her affidavit evidence in which she described her losses.
[55]TN 145
54 Ultimately, as the defendant appeared to concede in final submissions, the task for the Court is to identify long-term consequences, if any, which the plaintiff's accident-related impaired mental state (and related cognitive deficits) continued to contribute and whether, when considered as a whole, these can be appropriately characterised as severe ("I think we would certainly concede that they are significant -- may be very considerable, but we say that they are not more than very considerable for the purposes of the statutory test"[56]) .
Treatment following the accident
[56]TN 146
55 Following the accident the plaintiff attended emergency at the Frankston Hospital, where x-rays taken of her neck were said to have been normal. However, the clinical records kept by the plaintiff's treating general practitioner Dr Van Andel and her reports[57] are instructive in that these indicate that:
[57]PCB 45-62
· on 15 December 2004, the general practitioner initially diagnosed a whiplash-type injury to the plaintiff's neck. She took a history of a brief period of unconsciousness as a result of the plaintiff hitting her head;
· both on 15 December and the plaintiff's next attendance for treatment on 22 December 2004, the general practitioner noted a range of cognitive and organisational deficits reported by the plaintiff, including feeling "foggy, some words not coming out properly a bit slower with thoughts organisation and planning ..." and "not quite right, speech a little better, still jumbles words and cannot make decisions, not driving yet, can manage activities at home, not teaching. Short-term memory foggy, feels in a haze. Not deteriorating, husband notices she looks depressed, but no energy, has been back in car...(sic.)";
· CT scans of the plaintiff's brain and cervical spine on 23 December 2004 returned normal results;
· notwithstanding "progressive but very slow improvement", on 16 March 2005 she referred the plaintiff for cognitive assessment by psychologist, Mr Stapleton;
· on 15 July 2005 the results of an EMG Study indicated mild to moderate compression of sensory fibres of the median nerve in the carpal tunnel on the left side. As we now know, despite the TAC rejecting this injury, subject to viewing these results, Dr Waterston subsequently appeared to accept that organic injury, likely bilateral carpal tunnel syndrome, was due to physical trauma to the plaintiff's wrists as a result of the accident;[58]
[58]PCB 133 and 142
· by letter dated 25 August 2005, Mr Stapleton informed the general practitioner that after nine sessions the plaintiff had made "excellent progress" and that she was "far less concerned or anxious about her medical condition and her confidence has improved in most situations. She still struggles with some aspects of memory but is very productive with her work and coping well with most situations that do not require overloading her immediate memory reserves." However, as my earlier comments reveal, with the passage of time the optimism expressed in this earlier report has since been overtaken by the treating psychologist's concern that the plaintiff, in his words, "continues to function at the highest levels of depression, anxiety and stress";
· consistent with there being ongoing functional deficits and notwithstanding "a lot of improvement over time", on 31 October 2005 she referred the plaintiff to neurologist, Dr Hjorth. This was because the plaintiff continued to report deficits in her memory and cognitive functioning including a reported reduction in her sense of smell and taste and recurrent biting of the left side of the plaintiff's tongue;
· received a preliminary report from Dr Hjorth dated 8 February 2006. He arranged for the first round of neuropsychological testing in February 2006 to which I have already referred. Allowing for the results of this testing had he also been asked to report on these results I think it unlikely that Dr Hjorth would have deviated from his initial opinion, to the effect that the physical and cognitive symptoms reported were likely mediated by psychological factors following a minor head injury;
· the transport accidents in which the plaintiff had been involved in August 2006 and February 2007 were likely minor and, notwithstanding some exacerbation of physical symptoms such as neck pain, as the plaintiff deposed in her first affidavit, these symptoms settled after a short time to around the same level as following the accident.[59] These further accidents are mentioned in reports submitted by Drs Neill and Stern.[60] However, based on their evidence it is unlikely that any exacerbation/aggravation of the plaintiff’s anxiety caused by these unrelated events relevantly impact on the plaintiff's current psychological state;
[59]PCB 8
[60]PCB 41 and DCB 22
· a referral on 20 June 2007 for physiotherapy assessment and/or massage for treatment of chronic thoracic and cervical pain with some tingling in the hands, the latter symptom attributed by the doctor to the “known” carpal tunnel syndrome. Relevantly, the clinical notes reveal that, during this period, other stressors arising from the illness of her father and from her business were also impacting on the plaintiff’s likely compromised ability to cope;
· between the date of the accident and submission of the doctor’s final report to the plaintiff's solicitors on 22 November 2011, the plaintiff had also been treated at the Mornington Medical Group clinic for a number of other unrelated medical problems, as for example, cardiovascular issues, sinus problems, skin conditions. However, the material tendered shows that there were also a number of stressors reported by her that impacted on the plaintiff's ability to cope, including the death of her mother (clinical note, 8 March 2006), her marital separation, her daughter's learning difficulties as well as the plaintiff's ongoing struggle with "memory and structure of the day/organisational skills since MVA" (clinical note, 25 November 2009);
· in April 2010, consistent with the results of the neuropsychological testing and the psychiatric evidence to which I have already referred, the general practitioner reported having "noticed cognitive deficits becoming more and more prominent over the past few years." Notably, Dr Van Andel could not envisage further improvement in what she considered to be substantial deficits in the plaintiff's memory, organisational skills, planning and decision-making and in her ability to run her household and to parent her daughter.
· in November 2011, in addition to confirming that the plaintiff's condition was unchanged and that the plaintiff continued to describe significant day-to-day difficulties, the general practitioner also noted that the plaintiff's attempts to home-school her “autistic” daughter were hampered by her cognitive and psychological problems.
56 The last two reports from the treating general practitioner, with whom the plaintiff has a long-standing therapeutic relationship indicate that, in Dr Van Andel's opinion the plaintiff’s psychological state (and related cognitive deficits) is likely long-term and to continue to have a significant impact on the plaintiff's ability to cope with other stressors, such as her marital breakdown and her daughter's disabilities.
57 The plaintiff regularly attends psychological counselling. Mr Stapleton's three reports, submitted between September 2008 and November 2011 indicate that, in the nearly six years over which the plaintiff has regularly attended for psychological treatment through specific therapies and counselling, he has sought to ameliorate the effects of the plaintiff's memory difficulties and confusion, including her avoidance of social situations, her depression and anxiety, her anger and frustration, her inability to cope with a child with behavioural and learning difficulties, all at a time when the plaintiff's coping skills are significantly compromised, her personality has changed and her psychological state has deteriorated following the separation from her husband.[61]
[61]PCB 125 and 128
58 As I have noted, the plaintiff has an aversion to medication other than natural remedies. Currently she takes vitamins and applies linament externally in addition to following an exercise and massage routine. The plaintiff agreed that she has not taken antidepressant or anti-anxiety medication to treat her symptoms following the accident.[62] Relevantly the plaintiff attributed her refusal to consider even short-term use particularly of antidepressant medication to both her sensitivity to medication and to the suicide in 1983 of her brother, a few weeks after he commenced taking antidepressant medication.[63]
The consequences ascribed to ongoing mental impairment
[62]TN 63 and 77
[63]TN 89
59 Amongst the numerous ongoing changes since the accident identified by the plaintiff's brother and/or the three other witnesses are a change in the plaintiff's personality, forgetfulness, organisational problems, conversational problems, loss of train of thought/concentration, a loss of contact with her family and reduced participation in social activity, an emotional presentation with frequent breakdowns, an inability to maintain her home to the "immaculate" standard kept by the plaintiff in the past, an evident loss of confidence, poor judgment and confusion which has also impacted her ability to work effectively as a tai chi instructor and in her business, an evident high level of anxiety and frustration in respect to her problems and an inability to complete tasks such as bookwork.
60 For her part, the plaintiff generally explained and illustrated the accident-related consequences of ongoing mental impairment in paragraphs 22 to 32 of her first affidavit,[64] in paragraphs 3 to 24, 26 to 27 and 30 to 34 of her second affidavit,[65] in paragraphs 2 to 4 of her final affidavit[66] and through her responses either during cross-examination or in re-examination.
[64]PCB 10-12
[65]PCB 13-19
[66]PCB 20-21
61 As I have already mentioned in this application, the plaintiff's credit was not challenged. I do not propose to repeat her account of the consequences of her impaired mental functioning in great detail. However, her interpretation of the relationship between any losses and her mental response to the accident requires consideration.
62 In the final analysis (if any contribution from pain/physical limitations affecting other body functions such as the plaintiff spine and wrists are put to one side), any fair evaluation of the consequences to which the plaintiff and her witnesses referred (and consistent with the medical evidence) demonstrates that the plaintiff’s psychological reaction to a minor head injury has probably left her with a Chronic Major Depressive Disorder, an anxiety disorder and what Dr Weissman collectively called "prominent cognitive symptoms". In the seven years since the accident the cognitive deficits have been consistently identified as affecting the plaintiff's working memory and her ability to process information and they have produced, as Dr Stuart recently opined a "severe attentional disorder".
63 Based on all of the evidence I was satisfied that the plaintiff psychological reaction to the accident was a likely cause of the consequences enumerated by the plaintiff and summarised below. Later occurring and unrelated stressors (in the sense that they were stressors not directly caused by the accident) such as the deaths of her parents, no doubt also impacted on the plaintiff's already compromised psychological state. The accident nevertheless remains a primary cause of the plaintiff's psychological condition now and for the foreseeable future. Indeed, all of the doctors envisage (and I infer that this is likely for the long-term) ongoing specialist treatment (even if this does not also involve the prescription of medication). However, as far as I can tell Dr Stern was the only medico-legal specialist who did not also recommend psychiatric assessment and/or treatment. For the reasons I have already mentioned I have given less weight to his opinions and, it follows, to his view that the plaintiff remains psychologically fit to continue teaching tai chi.
64 The plaintiff's capacity to engage in her pre-injury occupation or other suitable employment in the foreseeable future was not directly addressed in the reports submitted by the plaintiff's general practitioner and her psychologist. However, the recent evidence of particularly Dr Weissman that the plaintiff has "a partial and limited" capacity for suitable duties[67] and Dr Stuart's view that the plaintiff’s psychiatric condition made it difficult for her to continue working as a tai chi instructor[68] indicate significant and likely ongoing injury-related pecuniary disadvantage.
[67]PCB 182
[68]DCB 50
65 Clearly there is some overlap in the consequences reported. For the sake of completeness they are summarised as follows:
· ongoing deficits in the plaintiff's memory and reduced alertness with confusion and slurred speech when tired;
· “organisational” problems (this is clearly the plaintiff's way of describing of the effects of the attentional deficits identified through neuropsychological evaluation) which impact on the running of her home and business (more so since the plaintiff's separation from her husband in 2009, as she now requires paid domestic help and has not coped with the increased workload/classes since her husband left). Further examples of this problem to which the plaintiff alluded involved her inability, notwithstanding assistance from a social worker, to finalise an application for a carer’s payment in respect to her care of her disabled daughter because she felt overwhelmed by the paperwork and, despite funding for treatment of her daughter by a child psychologist, her inability to arrange an appointment with a paediatrician;
· an inability to follow group conversations;
· difficulty in engaging in earlier leisure activities such as reading books which the plaintiff said she now has to re-read in order to absorb and recall the information;
· anger and irritability due to her limitations. This had, so the plaintiff said, impacted on her relationship with her husband, culminating in their separation from January 2009. According to the plaintiff her inability to manage the family's financial affairs and bill payments, her forgetfulness and the additional responsibilities assumed by her husband were all critical factors in the failure of their marriage. The plaintiff also said that her relationship with her daughter was impacted. The plaintiff was clearly ashamed to admit that she had lashed out at her daughter and hit her a few times after the breakup of the marriage, uncharacteristic behaviour the plaintiff attributed to her inability to control her moods;
· a loss of social activity and a loss of contact other than by e-mail with friends and family;
· an inability to work effectively as a tai chi instructor and, as she did in the past, handle the business accounts, organise and plan for her lessons, recall the sequence of movements she was required to teach, learn and retain new routines and, having attained her black belt more than 10 years ago, her inability progress to a higher qualification. As it turns out in July 2011 the plaintiff lost the endorsement of the Golden Lion Academy following a complaint from a student after the plaintiff left a class unattended, behaviour the plaintiff offered as a recent example of her poor judgment. However, putting to one side any physical restrictions on the plaintiff's performance of tai chi movements, as I have already mentioned the plaintiff also blamed her functional deficits for her decision to wind down and, by March 2012, close the business which she currently describes as "really just a hobby";[69] and
· financial pressures because of impulse buying on the Internet and bad decision-making in respect of investments in businesses operated by friends and in taking out a loan with her husband following their separation.
[69]PCB 20
66 Based on all of the evidence I was affirmatively satisfied that the mental state for which the plaintiff requires ongoing treatment and therapeutic interventions is a serious injury because at the date of the hearing it is fairly described as both severe (in part measured by the accompanying cognitive deficits) in its consequences for this plaintiff and it is long-term because the condition will last for the foreseeable future.
Orders
67 Accordingly, pursuant to section 93 of the Act leave is granted to the plaintiff under sub-s 93(17)(c) to bring proceedings for recovery of damages in respect of injury suffered in the transport accident on 13 December 2004.
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