Arzanas v Transport Accident Commission
[2012] VCC 1459
•5 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05869
| KATHERINE ARZANAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 17 September 2012 | |
DATE OF JUDGMENT: | 5 October 2012 | |
CASE MAY BE CITED AS: | Arzanas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1459 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport accident – psychiatric injury – injury to the low back – credit of the plaintiff
LEGISLATION CITED – Transport Accident Act 1986, s93(17)(a) and (c)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis (2000) 30 MVR 441
JUDGMENT – leave granted to bring proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Ms H Donmez | Zaparas Lawyers |
| For the Defendant | Mr C W R Harrison SC with Mr C S O’Sullivan | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 4 December 2007 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found s93(17) of the Act. There:
“serious injury means—
(a) serious long-term impairment or loss of a body function;
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The body function relied upon in this application under s93(17)(a) of the Act is the neck and the low back, which must be considered separately. In addition, the plaintiff relies upon a psychiatric impairment under s93(17)(c), being a Post-Traumatic Stress Disorder (“PTSD”) with Anxiety and Depression.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits sworn 4 June 2010, 6 February 2012 and 19 July 2012.
7 The plaintiff and Dr Wahr, psychiatrist, were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17).
9 The enquiry under sub-paragraph (a) of the definition focuses attention, first upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
[1][1992] 2 VR 129
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under paragraph (a) and the latter under paragraph (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
10 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie (2000) 1 VR 79
11 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[4]
[4](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
12 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraphs (a) and (b) of s93(17).[5]
[5]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
13 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[7] were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[8]
[6][1998] 3 VR 833
[7](1995) 21 MVR 314
[8]Mobilio v Balliotis [1998] 3 VR 833 at 846
14 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of subsection (17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[9]
[9]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
The Issues
15 Counsel for the defendant informed the Court that in relation to the physical injuries, they are not within the range and are not serious. Further, there is doubt about permanence.
16 In relation to the psychiatric injury, Counsel for the defendant said the plaintiff’s credit was in question, which affects what she has told the medical practitioners whom she has seen.
The Plaintiff’s Evidence
17 In her affidavits sworn on 4 June 2010, 6 February and 16 July 2012, the plaintiff deposed that:
· On 4 December 2012, she was the front seat passenger in a vehicle which was struck on the passenger side by another motor vehicle. She was taken by ambulance to The Alfred Hospital, where radiological investigations were performed and she was discharged.
· She attended her general practitioner, Dr Gouras, a few days after the accident and saw him three or four more times before 23 December 2007, when she went to Greece.
· While in Greece, she had physiotherapy treatment and consulted a local general practitioner, who prescribed painkillers and anti-inflammatory medication.
· In November 2008, she returned to Australia and resumed treatment with Dr Gouras. Dr Gouras prescribed medication and arranged radiological examinations and referrals to specialists.
· On 7 July 2009, she saw Dr Wahr, psychiatrist, who prescribed medication and provided psychiatric treatment.
· She is constantly anxious and depressed. She has regular panic attacks, during which time she has butterflies in her stomach. She becomes agitated and irritable. She continues to have flashbacks and dreams of the accident, and is often fatigued. She feels helpless and useless. She cries a lot.
· She suffers constant neck pain and has a reduced range of movement in her neck. The pain radiates into her shoulders and interferes with her sleep. The pain in her shoulders varies in intensity and is worse on the right side. She experiences numbness in her shoulder down to her fingers and has a restricted range of movement.
· She suffers ongoing low and mid back pain, which is aggravated by activities, including standing, sitting and walking for significant periods of time.
· She has daily headaches and dizziness.
· She has problems with concentration and memory, and finds it hard to make decisions.
· She continues to consult her general practitioner and psychiatrist and takes medication for pain and her psychiatric symptoms.
· In late 2008, she commenced teaching Greek for four hours, one day per week. She did this for approximately three months, but could not cope as she was having panic attacks in the classroom. She has not worked since. She would like to work and is concerned about her financial future.
· Prior to the accident, she was an outgoing person who enjoyed socialising, including going to the movies and restaurants. She does this far less now.
· Before the accident, she went to the gym regularly, but has tried to go to the gym once or twice but could not continue because of pain in her shoulder, knee, neck and back. She lost patience being in a small room.
· She has not driven a car since the accident because she is an anxious driver.
· Her depression has affected her relationship with her children. She struggled to communicate with them and was very forgetful.
· She is not confident and has lost self-esteem.
The Plaintiff’s Evidence in Cross-Examination
18 The plaintiff gave the following pertinent evidence:
· She said the medication she took when her mother was ill and died was not like the medications she takes now.
· She said when she is not in Court she tries to be happy but she cannot be. She says she hides her distress when she is around friends.
· She said she was not troubled by traffic when she is having a coffee on the footpath; in Greece, that is how cafés are.
· She agreed she chose not to resume her relationship when she returned from Greece. She said she does not feel confident enough to continue in a relationship. She said sometimes she makes an effort with her grooming when she goes out. She said she does not want a relationship and does not think of being in a relationship.
· She enjoyed talking to Saudi Arabian student pilots who were residents at Ridges where she was living. She talked to them so that their language skills would improve.
· She said when she taught at the Greek School for a short period, she lacked concentration and had panic attacks. She said she was not coping and was struggling to attend.
· She agreed she had not been driving since the accident.
· She said she found out yesterday from her barrister that her licence had been suspended on two occasions. She said she handed her licence in before she went to Greece, she thought, when she was living at Ridges.
· She said she gave her licence details to a friend because she was not driving. She did not know that she was not allowed to give her licence to someone else to use.
· She said her relationship with her children now is very good.
· She said she had difficulty with sleeping. She does not get a full night’s sleep, it is interrupted and it affects her.
· She said she had forgotten about some of the matters in the affidavit that she swore in another proceeding.
· She said prior to the accident, she was concerned about her breathing.
· She said the reference to lots of social stressors in the Austin Hospital report may have related to the work she was doing with Foxtel, which was stressful.
· She said the flashbacks started after the accident. She cannot specifically recall when.
· She said Dr Gouras never asked her about flashbacks. She said she suffered them while she was in Greece. She was unable to recall when they ceased.
19 In re-examination, the plaintiff gave the following pertinent evidence:
· She was unable to remember if she handed in her licence on 1 July 2009. She remembers it was a long time ago.
· She agreed there had been a mistake made by Centrelink in the payments she received. She has not heard anything further from Centrelink.
· She said when she was teaching the panic attacks involved her being late to school. She would walk into a classroom and could not respond and lacked patience. She would sweat and be nervous and lacked concentration. She had to sit down most of the time and was unable to control the class. She said after the three-month period, she was not contacted again and asked to return to teach.
· She said she was concerned as to whether her children would ultimately accept her medical condition, which they have. She has doubts about herself, not her children, and whether she has been a good mother.
The Defendant’s Evidence
20 In his affidavits sworn on 12 January 2012, Mr Costa Markos deposed that:
· He is the director and company secretary of The Greek Orthodox Community of Melbourne and Victoria, which runs after-school and Saturday Greek language classes.
· The plaintiff was a casual assistant teacher employed for three months from 1 April 2009. The plaintiff was a teacher’s aide and required a fully qualified teacher to take the class while she assisted.
· The plaintiff was employed to fill a short-term vacancy for three months.
Investigations
21 On 7 November 2008, an x-ray of the plaintiff’s cervical spine reported:
“Vertebral alignment is normal. Decreased intervertebral disc space height is seen at C5/6, in association with end plate osteophytes. Uncovertebral osteophytes produce moderate bilateral foraminal stenosis at C5-6. There is no evidence of cervical rib. The paravertebral soft tissues are normal in appearance.
Left Shoulder
The glenohumeral and acromioclavicular joints are normal in appearance. No focal bone lesions are seen. There is no evidence of calcification within the subacromial space.”
22 On 27 March 2009, an x-ray of the plaintiff’s right hand and wrist was normal. An x-ray of the lumbar spine was normal.
23 On 29 September 2009, an ultrasound of the plaintiff’s right shoulder showed:
“Subacromial bursa is mildly thickened and mildly impinges.”
24 No other abnormality was seen.
25 On 30 September 2009, an MRI scan of the plaintiff’s cervical spine showed:
“Posterior osteochondral bridging at C4/5, C5/6 and C6/7 in addition to foraminal narrowing. Small central disc protrusion at C3-4. No other abnormality. Normal facet joints.”
26 On 20 July 2012, an MRI of the plaintiff’s lumbar spine showed:
“Right L2-3 paracentral disc protrusion causing minor thecal sac indentation. No canal or foraminal stenosis. No nerve impingement.
Mild posterior central L5-S1 disc protrusion with chronic annular fissure causing minor anterior epidural fat indentation. No canal or foraminal stenosis. No nerve impingement. Disc is mildly desiccated.”
The Plaintiff’s Medical Evidence
The Alfred Hospital Medical Records
27 The records confirm that the plaintiff was admitted to The Alfred Hospital on 4 December 2007 as a result of a motor vehicle accident. She was discharged on the same day.
Ms Olga Katelas
28 Ms Katelas, physiotherapist in Leptokaria, Greece, treated the plaintiff on 19 March 2008. She diagnosed symptoms of cervical syndrome associated with dizziness, neck stiffness in turning, bending and stretching, numbness in the upper limbs, with painful extensor and flexor muscles of the palm zone. The plaintiff also had severe back pain and lumbago, with muscle spasm in the area of the back. She treated the plaintiff with a physiotherapy program.
Dr A Gouras
29 Dr Gouras, general practitioner, treated the plaintiff for injuries she suffered in a transport accident on 4 December 2007. He provided medical reports dated 17 October 2009, 19 August 2010 and 10 August 2012.
30 Dr Gouras had treated the plaintiff since 1998. He treated her for symptoms of migraine and mild depression following her mother being diagnosed with a serious medical condition. He prescribed Mersyndol (anti-migraine) and Antenex (diazepam) medication. The plaintiff made a full recovery.
31 In August 2012, Dr Gouras said he first saw the plaintiff in relation to the transport accident on 6 December 2007. He could not locate his notes with regard to the history he took and the treatment prescribed. Soon after, the plaintiff left for Greece to be with her children. While overseas, she received treatment from a local doctor, which consisted of painkillers and physiotherapy.
32 In November 2008, she complained of persistent neck pain, worse on the left side, pain in her left shoulder joint and left arm, occasional left chest pain and complained of pain in her lower back region, radiating down to her legs. She said that since the accident, she had developed headaches, irritability, dizziness, panic attacks and depression. She had been unable to return to her work as a teacher.
33 Dr Gouras said the plaintiff had a pain-free history in relation to her neck, shoulder and low-back. On 4 December 2007, she suffered the following injuries:
· Aggravation of her pre-existing, but symptomless spondylosis in her cervical spine with a possible disc lesion at C3-4 level;
· Soft-tissue injuries over both her shoulder areas and over the lateral aspect of her left chest cage;
· Soft-tissue injuries in her right shoulder joint;
· Aggravation and possible disc lesions in her lumbosacral spine with a paracentral disc protrusion at L2-3 level and a posterior central disc protrusion at L5-S1 level.
34 He said the plaintiff had developed a severe post-traumatic anxiety and depression which has persisted and become chronic. Her prognosis for full recovery is very guarded. She is still incapacitated for her employment. She needs further medical follow up and treatment. He thought her condition had stabilised and he said she had been incapacitated and will be incapacitated in the near future until she improves further.
Dr George P Wahr
35 Dr Wahr, psychiatrist, treated the plaintiff at the request of her general practitioner from July 2009. Dr Wahr provided medical reports dated 17 July and 20 August 2009, 12 February, 23 April and 16 June 2010 and 11 May 2012.
36 In May 2012, Dr Wahr said he was treating the plaintiff on a fortnightly basis. She continued to have problems in the following areas: anxiety, depression, flashbacks, sleep disturbance, reduced concentration and memory. He diagnosed PTSD, which has become chronic and firmly established. He said her prognosis was poor, that she is totally incapacitated for any employment, which he thought was permanent due to the severity of her condition. He said she requires ongoing psychiatric treatment consisting of supportive psychiatric psychotherapy and monitoring of psychotropic medications.
37 Dr Wahr gave evidence to the Court. He said he saw the plaintiff at approximately two to three-weekly intervals. He confirmed the diagnosis of PTSD of a significant severity. He said she is currently receiving medication of Avanza SolTab, 45 milligrams, one at night, and Xanax, 1 milligram, one-and-a-half at night. He thought she was likely to require medication into the future. He thought the prognosis for her resolution was poor but with psychiatric treatment, containment was possible.
38 In cross-examination, Dr Wahr did not agree with Associate Professor Mendelson’s opinion that the plaintiff was not suffering from any psychiatric illness. He said the plaintiff had been a patient for a long time, her symptoms had been severe and significant and she presents in a very distressed, anxious and quite depressed manner. He said that the plaintiff had a psychiatric condition. He was aware that Associate Professor Mendelson said the plaintiff did not qualify for a diagnosis of PTSD. Dr Wahr thought her condition was best described as PTSD but he said you could describe her condition as “agitated depression”, but as she had flashbacks and dreams about the accident, he thought PTSD was an appropriate description.
39 Dr Wahr agreed the plaintiff had not told him that she presented with symptoms of migraine and mild depression after her mother was diagnosed with a serious medical condition in 1998. He agreed that he was very dependent on what he was told by a patient and the measurement of the affect on mental status examination.
40 Dr Wahr said the plaintiff had told him there were no psychiatric stressors prior to the accident. He said that depressed people tend not to form relationships. He said the plaintiff had given him a history of fairly consistently sleep difficulties occurring, worse than described to him in court. He said that would mean that her sleep habits are better at the moment than previously. He said that chest pains and shortness of breath are very characteristic of people with severe anxiety. He said he had only ever talked to the plaintiff of being afraid of being in a car as a passenger or as a driver. He never asked patients whether they are scared of sitting on the footpath and having a coffee.
41 Dr Wahr said, in forming the opinion that the plaintiff will never be able to work again, he is reliant upon what she tells him and what he observes. He said her presentation to him was such that he did not think she could work. He said the medication he prescribed would not affect her concentration; in fact it would improve it, if anything. He said there was no great difference in describing her condition as PTSD or agitated depression with flashbacks.
42 In re-examination, Dr Wahr said the fact that the plaintiff made a full recovery in relation to the treatment she was receiving at the time of her mother’s illness had no relation to her present condition. He said interrupted sleep is of significance as it is a distressing symptom. He thought the night she attended at the Austin Hospital and the fact that the hospital could find nothing wrong with her, suggested she probably suffered some level of anxiety. He said the other medication she takes for her symptoms may affect her concentration. He said he formed the opinion she had memory and concentration problems.
Dr Alex Stockman
43 In August 2009, Dr Stockman, rheumatologist, saw the plaintiff on referral from her general practitioner. He was unsure of whether the plaintiff had a Pain Syndrome or pathology in her neck which was causing headaches and pain in the right arm. He suggested an MRI scan of the cervical spine with ultrasound of the right shoulder. He said that depression was a major problem.
44 After conducting an MRI scan, Dr Stockman said the plaintiff was likely to have pre-existing cervical spondylolisthesis (that is, prior to the motor vehicle accident in 2007) which has been aggravated by the transport accident. The bursitis in the right shoulder had probably been caused by the accident. He was unable to find any significant abnormality clinically to explain the lumbar back pain and pain in the left leg. He thought her condition had probably stabilised and that she should continue with medication but would also benefit from a steroid injection into the right shoulder. He thought she was fit to return to part-time work in her previous capacity. He was unable to comment on her psychological state.
Medical Report – Mental Health Centre of Katerini
45 On 25 October 2011, Ms Triantafillia Giannikis, psychologist, certified that the plaintiff was examined at the Mental Health Centre on 25 October 2011. A psychometric assessment reported that the plaintiff presented with symptoms of severe depression (score of 46) with a level of severity of stress significantly higher than the average (20).
Medical Report – Patient Department, Psychiatric Hospital of Petra
46 A report of a psychiatrist, Constantinos Papanicolaou, certified on 25 October 2011 that the plaintiff suffered from a Major Depressive Disorder. She had been monitored in the last four months at the hospital and she was taking medication.
Mr K A Myers
47 In March 2010, Mr Myers, surgeon, saw the plaintiff at the request of her solicitor. He diagnosed:
“1 Aggravation of pre-existing, previously asymptomatic degenerative intervertebral disc disease and spondylitic in the cervical spine.
2 Capsulitis of both shoulders.
3 Fibromyalgia in both upper limbs.”
48 It was his view that the plaintiff’s physical and mental state at that time prevented her returning to former employment. He said she needed conservative management. He thought there was no reason to expect any improvement in her condition in the foreseeable future. He suspected she had become a chronic invalid from a combination of physical and psychiatric disabilities.
Dr Paul Kornan
49 Dr Kornan, psychiatrist, saw the plaintiff in April 2010, January and June 2012. He diagnosed PTSD, Panic Disorder without agoraphobia, specific anxiety phobia about cars and travelling; and an Adjustment Disorder with Depression.
50 In June 2012, he said she remained incapacitated for employment for a considerable period of time as a result of the transport accident. Her treatment is appropriate. He noted that Dr Wahr had increased her medication. He did not see her changing in the foreseeable future. He said her condition had become chronic and it is likely to persist. He thought she had slipped backwards since he last saw her and said that it is well recognised that a PTSD can, even at times, last in a variable way indefinitely.
Mr Charles Flanc
51 Mr Flanc, vascular and general surgeon, saw the plaintiff in January and June 2012 at the request of the plaintiff’s solicitor.
52 In relation to the cervical spine, Mr Flanc said the plaintiff probably sustained a whiplash injury of the neck which has caused a significant aggravation of pre-existing disc degeneration and osteoarthritis of the cervical spine, in the sense it became symptomatic and has remained so. He said she suffers pain in her cervical spine which radiates down to both shoulder girdles. He thought that on the balance of probabilities the pain over her shoulder region is referred from the condition of her cervical spine, rather than to any actual pathology in the shoulders.
53 In respect to the lumbosacral spine, he said the lower back pain is not as severe as that affecting her cervical spine but is significant. The circumstances of the accident are consistent with an aggravation of a pre-existing degenerative condition of the lumbar spine which became symptomatic and it is for this reason that he suggested she undergo an MRI scan. It was his view that the plaintiff could not cope with work involving prolonged standing or repeated bending or heavy lifting. She could probably cope with light, part-time sedentary duties provided she could get up and walk around whenever her discomfort became more severe and provided she could move her head around if her neck pain increased in severity. Theoretically, he considered she could probably cope with two to three hours per day on alternate days initially, and this could be gradually increased if she was coping well.
Dr Nigel Strauss
54 In May 2012, Dr Strauss, psychiatrist, saw the plaintiff at the request of the plaintiff’s solicitors. He diagnosed a mild PTSD and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought she probably had a mild Pain Disorder associated with a medical condition and psychological factors. He noted that she had not worked for some years and was doubtful that she would be able to cope with employment in the foreseeable future. He believed that she was totally and permanently incapacitated for work.
Dr Lester A Walton
55 In December 2009, Dr Walton, psychiatrist, saw the plaintiff at the request of the Transport Accident Commission. It was his opinion the plaintiff was suffering from PTSD as a result of the motor vehicle accident. He said she required ongoing psychiatric treatment consisting of supportive psychiatric psychotherapy and monitoring of psychotropic medication.
The Defendant’s Medical Evidence
Mr Jonathan Hooper
56 Mr Hooper, orthopaedic surgeon, saw the plaintiff at the request of her general practitioner. He diagnosed ligamentous problems in her neck, early triggering in her right thumb and said she may have early carpal tunnel syndrome. He recommended a gymnasium course which would then lead into a self-exercise program.
Dr Chris Baker
57 In November 2009 and 2011, Dr Baker, specialist in occupational medicine and public health, examined the plaintiff at the request of the defendant’s solicitor. It was his view that the plaintiff suffered soft-tissue injury to the cervicothoracic spine and to the lumbosacral spine. He said on both occasions there was a significant non-physical component. He considered she had a capacity for employment within the type of occupations she had undertaken previously. He said there was a lack of objective evidence of physical pathology and there was a significant non-physical component to her presentation. He thought she needed painkillers. He thought she had a work capacity and could undertake occupations in line with the type of work she was undertaking previously. He said she remains fit from a physical perspective to undertake employment in the occupations in which she had previously worked.
Mr Michael Shannon
58 In July 2010, Mr Shannon, orthopaedic surgeon, saw the plaintiff at the request of the Transport Accident Commission. He diagnosed a soft-tissue injury to the cervical and lumbar spine. He said the prognosis for her physical injuries was satisfactory. He said there was no objective evidence of ongoing disability, although x-rays have shown pre-existing cervical disc degeneration. He suspected the effects of aggravation of cervical disc degeneration had ceased. He said she seemed to have some genuine restriction of movement and some minor spasm in the lumbar spine. He said her condition was stable and he could see no reason why she could not return to work either as a teacher or in customer service.
Mr Robert Dickens
59 In January 2012, Mr Dickens, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He diagnosed a soft-tissue injury to the cervical spine in the presence of preceding degenerative changes, a soft-tissue injury to the lumbosacral spine, almost certainly in the presence of constitutional preceding degenerative changes and soft-tissue injuries to both shoulders, with no particular evidence of disruption of the rotator cuffs. He thought she had developed a Pain Disorder as a consequence of the accident, with generalised aches and pains. He said the problems that are impacting on her capacity to work are her ongoing symptoms in her cervical spine, her lumbar spine and in both shoulders. He believed that physically she could undertake her previous occupations. He said there were probably issues with concentration and reliability and other factors which prevent her from working. He said he was not qualified to make any comment on that, except to note that in the absence of the forgetfulness and difficulty with concentration, the plaintiff did agreed that physically she would probably be able to do the work that she did before.
Dr Nicholas Ingram
60 In August 2010, Dr Ingram, psychiatrist, saw the plaintiff at the request of the Transport Accident Commission. He said psychologically she had become moderately severely depressed in association with frequent panic attacks which related to her chronic pain and her physical limitations and the loss of her previous life. She reported occasional flashbacks and nightmares of the accident and had become anxious travelling in a car as a passenger, and has avoided driving. He diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood in association with Panic Disorder. He noted that she had phobic symptoms in regard to driving and minimal residual PTSD symptoms. He took issue with Dr Wahr’s diagnosis of PTSD. First, he thought the plaintiff was moderately depressed; and secondly, he felt her PTSD is only a minor component of her present complaint and that most of her symptoms are related to her depression and panic. He thought the prognosis for these was relatively good.
Associate Professor George Mendelson
61 In March 2012, Associate Professor Mendelson, psychiatrist, examined the plaintiff at the request of the defendant’s solicitors. It was his opinion that there was no indication that the plaintiff had any loss of work capacity due to a current psychiatric disorder or psychiatric impairment. He thought it was not inappropriate that she continue with her treatment from her psychiatrist but thought the frequency of the consultations should gradually be reduced to every four to six weeks. He did not think the plaintiff had experienced the type of traumatic stressor that could be considered as capable of causing PTSD. He thought she had emotional symptoms which are secondary. He did not consider the plaintiff had any loss of work capacity as the result of any psychiatric illness or psychiatric impairment.
Credit of the Plaintiff
62 The plaintiff had an excellent grasp of English, even though it was her second language. On occasions, in response to questions, she offered irrelevant and confusing information which did not assist her case. At other times she made sensible concessions. Sometimes she struggled to give a clear chronology. On occasions she became frustrated with the process and became emotional and required breaks. I concluded that she found the process difficult.
63 When asked about driving offences which involved her licence, the plaintiff said that she did not know that her licence was suspended in January 2008 and that she had been disqualified from driving in June 2009 until the day before the proceeding commenced, when she was informed by her barrister. She agreed she had sworn an affidavit on 11 August 2010 in another proceeding in which she attempted to explain the use of her drivers licence. Ultimately, I accept that she was naïve in respect to this matter.
64 There was no suggestion by any medical witness that the plaintiff exaggerated her position.
65 I accept that she was a truthful witness.
Video Surveillance
66 The plaintiff was shown video surveillance taken on 23 August 2012, which showed the plaintiff sitting at a table with friends outside a café drinking coffee, smoking and talking. The plaintiff said that she could enjoy herself on occasions. I took the view that the film did not assist the defendant.
Analysis of the Evidence
67 I am satisfied that the plaintiff suffered a compensable injury arising out of the transport accident. In respect to the psychiatric injury, the majority of the medical witnesses accepted that the plaintiff suffered a PTSD, most accepted the condition was chronic.
68 Dr Gouras, the plaintiff’s general practitioner, described the plaintiff’s condition as a severe PTSD Anxiety and Depression which has persisted and become chronic. Dr Wahr, treating psychiatrist, said the plaintiff suffered a PTSD which had become chronic and firmly established. He later said it was PTSD of a significant character.
69 Dr Kornan diagnosed a PTSD, Panic Disorder without agoraphobia, specific anxiety phobia about cars and travelling and an Adjustment Disorder with Depression. Dr Strauss diagnosed a mild PTSD and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Walton, psychiatrist, said the plaintiff was suffering from PTSD.
70 Dr Ingram diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood in association with Panic Disorder. Associate Professor Mendelson disagreed that the plaintiff had a PTSD but accepted the plaintiff should continue her treatment with Dr Wahr.
71 Counsel for the defendant submitted that it was necessary to determine whether the plaintiff suffered an aggravation to her psychiatric condition following the transport accident. Dr Gouras, the general practitioner, said in 1998 he treated the plaintiff for mild depression and migraine following her mother being diagnosed with a serious medical condition from which she died at age fifty-seven. Dr Gouras said the plaintiff made a full recovery.
72 The defendant relied upon a report from the Austin Hospital of an attendance by the plaintiff prior to the transport accident. The plaintiff attended because of chest wall tenderness. The report noted:
“Lots of social stressors at the moment.”
73 Counsel for the defendant suggested that her attendance at the Austin Hospital was indicative of her psychiatric condition before the transport accident. There is no evidence of this. The report was shown to the plaintiff’s treating psychiatrist. He said it did not alter his view.
74 Accordingly, I am satisfied that there is no evidence that the plaintiff had a psychiatric condition before the transport accident. Accordingly, I reject the submission that the psychiatric condition is to be treated as an aggravation.
75 I must consider the plaintiff’s injury at the time of the application. Accordingly, I place greater weight upon the more up-to-date medical evidence, in particular, Dr Gouras, Dr Wahr, Dr Kornan, Dr Strauss and Associate Professor Mendelson. However, I note that Dr Ingram and Dr Walton described the plaintiff’s condition as a minor/mild PTSD.
76 The medical evidence of Dr Wahr is that he has been treating the plaintiff since July 2009. He currently sees the plaintiff on a fortnightly basis and her PTSD is chronic and firmly established. He said she is totally incapacitated for work and will not be able to work in the future because of her condition. He agreed he was reliant on what the plaintiff told him and what he observed. Recently, he has increased her medication which she takes daily. He said the plaintiff had complained of sleep difficulties. He said interrupted sleep is a distressing symptom. He said he had only ever talked to the plaintiff of being in a car as a passenger or driver.
77 Dr Kornan saw the plaintiff on three occasions. His views were consistent with those expressed by Dr Wahr, as was Dr Strauss, who only saw the plaintiff on one occasion.
78 Associate Professor Mendelson saw the plaintiff on one occasion. He said she described emotional symptoms that were secondary to the complaint of pain. He did not think that was any indication of a diagnosable mental disorder such as a clinically significant depressive illness or any specific type of an Anxiety Disorder. However, he thought she should continue her treatment with Dr Wahr and gradually reduce the frequency. Also, he said she had not experienced the type of traumatic stressors capable of causing PTSD and did not describe the symptoms to meet the diagnostic criteria of the condition. Dr Wahr was told of Associate Professor Mendelson’s opinion. Dr Wahr said the plaintiff volunteered that she suffered flashbacks and frequency of sleep disturbance. He said you could diagnose her condition as PTSD with depression being significant or you can call it an agitated depression with flashbacks. He said psychiatrically there is no difference between those two terminologies. He felt PTSD was correct but he was happy to call it agitated depression with flashbacks.[10]
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79 I accept Dr Wahr’s opinion. He has treated the plaintiff regularly for more than three years. His evidence is supported by Dr Kornan and Dr Strauss. Further, Dr Wahr was cross-examined and I formed the view that he was a most impressive witness.
80 Most of the psychiatric opinion was that the plaintiff’s condition was chronic and long term. I accept that the plaintiff’s condition is long term. She has been living with the condition for almost five years.
81 The plaintiff said the consequences of the psychiatric condition are that she is constantly anxious and depressed; she has panic attacks and becomes agitated. This was consistent with what she told doctors and the evidence of Dr Wahr.
82 The plaintiff told the Court that she had attempted to work part-time for three months teaching in a Greek school, but she was not happy with her performance. She said she suffered panic attacks, which meant she was late to work. She was nervous and lacked concentration and control of the classroom. She accepted her employer was satisfied with her performance, but she felt she was unable to cope in the role. The majority of the doctors considered the plaintiff was totally incapacitated for employment due to her psychiatric impairment. I formed the opinion upon her presentation in Court that she would have considerable difficulty in managing and controlling a class of students.
83 The plaintiff said she suffers interrupted sleep, including flashbacks, which she has reported to the doctors whom she has seen. Dr Wahr said that interrupted sleep is of significance as it is a distressing symptom. She complained of experiencing problems with her concentration and memory. She gave examples of being unable to recall telephone numbers or names and has difficulty reading magazines or newspapers. She complained of these problems to the doctors whom she saw. In fact, she was most distressed after she saw Associate Professor Mendelson, which she reported to Dr Wahr. Dr Wahr’s evidence was that he formed the opinion she had memory and concentration problems.
84 The plaintiff sees Dr Wahr every two to three weeks and he prescribes anti-anxiety medication, which he increased recently. No doctors suggested that her treatment was inappropriate. Even Associate Professor Mendelson, who did not think she had a psychiatric condition, considered she should continue seeing Dr Wahr on a less regular basis.
85 The plaintiff’s evidence was that she was not interested in a relationship. Dr Wahr said depressed people do not tend to form relationships. The plaintiff’s evidence was that she could not work because of her lack of concentration and memory and panic attacks. This was supported by Dr Wahr, Dr Kornan, Dr Strauss and Dr Gouras, who considered such consequence long term.
86 I accept that the plaintiff has suffered the above mentioned consequences. Those consequences are supported by the medical evidence. I accept that to lose one’s ability to work is a very significant consequence. In addition, the plaintiff described consequences of anxiety, depression, panic attacks, sweating, and difficulty with sleeping, flashbacks and nightmares. She requires treatment on a regular basis from a psychiatrist and medication. There is no indication that her condition is likely to improve. I consider those consequences are severe.
87 I am satisfied that the plaintiff was involved in a transport accident which to this plaintiff, resulted in her experiencing symptoms of a psychological nature, which has resulted in a psychiatric impairment. The consequences of her psychiatric impairment to her are dramatic and impact upon nearly all aspects of her life, as she knew it before the accident. She has suffered for five years and the medical evidence is guarded as to the future. I accept that the plaintiff’s psychiatric impairment is long term.
88 I accept that the psychiatric impairment has consequences to the plaintiff, when judged by comparison with the other cases in the range of possible impairments, that may be fairly described at the date of hearing as being “at least very considerable” and “more than significant or marked”.
89 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her impairment can be reasonably described as being more than “serious” to the extent of being “severe” as defined in s93(17)(c) of the Act. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of possible mental or behavioural disturbances or disorders.
90 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered in the transport accident on 4 December 2007.
91 In view of my finding, it is not necessary for me to consider whether the low back and neck impairments constitute a “serious injury” under s93(17)(a).
92 I will hear the parties on costs.
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