Aslan v Transport Accident Commission
[2020] VCC 388
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04173
| SEVGI ASLAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19 and 20 March 2020 | |
DATE OF JUDGMENT: | 8 April 2020 | |
CASE MAY BE CITED AS: | Aslan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 388 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychiatric injury – major depression –somatic symptom disorder with pain persisting and of moderate severity – whether the consequences are “severe” for the plaintiff – physical injury to the spine – chronic pain syndrome – whether the consequences for the plaintiff are “serious” – credit of the plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566; Richards v Wylie (2001) 1 VR 79
Judgment: The application for serious injury certification in respect of the psychiatric injury as a result of the transport accident which occurred on 4 September 2017 is dismissed. The application for serious injury certification in respect of the physical injury to the plaintiff’s back as a result of the transport accident on 4 September 2017 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Ms L Burke | Carbone Lawyers |
| For the Defendant | Mr P B Jens QC with Mr J Valiotis | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 4 September 2019. The plaintiff applies 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 the transport accident which occurred on 4 September 2017 (“the said date”).
2 Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied that the injury suffered by the plaintiff is a “serious injury”. In this application the definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(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”
3 In this application, the plaintiff in effect has two separate applications for serious injury. Under s93(17) of the Act the plaintiff seeks serious injury certification by the Court for:
(i)loss of body function of the spine, in particular the low back; and
(ii) long-term severe mental or behavioural disturbance or disorder.
4 The enquiry under s93(17)(a) of the Act 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, determine whether it is serious and long term.
5 The serious injury defined by ss(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 an impairment of the body function.[1]
[1]Richards v Wylie (2001) 1 VR 79
6 The serious injury in respect of s93(17)(c) requires the level of impairment to be “severe”.[2] In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is: Can the injury, when judged by comparison with other cases in a range of possible impairments, be fairly described as at least “very considerable” and more than “significant or marked”?[3]
[2]Mobilio v Balliotis [1998] 3 VR 833
[3]Humphries & Anor v Poljak [1992] 2 VR 129
7 The plaintiff swore and relied upon two affidavits, dated 25 March 2019 and 12 February 2020. The plaintiff gave evidence and was extensively and intensively cross-examined. The plaintiff also relied upon an affidavit of her husband, Mehmet Aslan, dated 12 February 2020. Mr Aslan was also cross-examined.
8 In addition to the affidavits referred to above and the evidence given by the plaintiff and her husband, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all the relevant tendered medical material.
9 The tendered evidence in this proceeding was as follows:
10 The plaintiff tendered the following documentation:
·Exhibit “A” – DVD surveillance film taken by the defendant of the plaintiff on 24 January 2020.
·Exhibit “B” – Plaintiff’s Court Book (“PCB”) pages 11 to 26 inclusive; pages 31 to 153 inclusive.
·Exhibit “C” – a report of Dr Roy Nallaratnam, psychiatrist, dated 29 June 2015.
·Exhibit “D” – individual taxation returns of the plaintiff for the years ending 30 June 2015 and 30 June 2016.
·Exhibit “E” – report of Dr A Firestone, psychiatrist, dated 6 March 2020.
11 The defendant tendered the following documentation.
·Exhibit 1 - Defendant’s Court Book (“DCB”) pages 4 to 26 inclusive.
·Exhibit 2 – medical records of the plaintiff from TLC Medical Practice between 29 October 2010 and 17 April 2019.
·Exhibit 3 – PAYG payment summary for the year ending 30 June 2017 in respect of the plaintiff.
12 The issues in this application by the plaintiff were set out by Mr Jens QC, Counsel for the Transport Accident Commission. The issues are as follows:
(a)the accuracy of the histories given to the doctors by the plaintiff in respect of:
(i)medical treatment; and
(ii)the activities and lifestyle of the plaintiff
(b)the credit of the plaintiff; and
(c)whether the psychiatric injury and condition complained of by the plaintiff is sufficient to reach the “severe” test; and
(d)what basis is there for the chronic pain syndrome claimed by the plaintiff in respect of her low back injury.
The Plaintiff’s background
13 The plaintiff was born in 1991 and is currently twenty-nine years of age. She lives with her husband and her young child.
14 The plaintiff was educated at Noble Park Secondary College. In approximately 2007, she commenced a hairdressing course at the Dandenong TAFE. Subsequent to that, she completed an apprenticeship in hairdressing at a salon in Parkmore Shopping Centre. The plaintiff worked in the hairdressing industry on a full-time basis from the time of the completion of her apprenticeship until 2013.
15 In 2013, the plaintiff travelled to Turkey with her family and remained there for approximately one year. The plaintiff married her first husband and returned to Australia in 2014.
16 The plaintiff, upon returning to Australia, remained living with her parents and her new husband. She then was working at Hair Express in Glen Waverley and Cuts and Colours group. In 2016, the plaintiff transferred her employment to Hairhouse Warehouse in Forrest Hill.
17 In 2017, the plaintiff took some time off work to look after her ill mother. At the time of the transport accident the subject of this proceeding, the plaintiff was not working. The plaintiff was engaged to be married to her now husband. The plaintiff has given birth to their only child in April 2018. The plaintiff has not returned to paid employment since the time of the accident on the said date.
The transport accident
18 The plaintiff described the transport accident in the following terms:
“I was returning from visiting my mother at Dandenong Hospital. As I was stationary at traffic lights on Cleeland Street in Dandenong when I was rear ended. As the other car stopped suddenly, the car behind her hit her too. This caused the car behind me to hit me from the rear end for a second time.”[4]
[4]PCB 13, paragraph 7
19 After the accident, the plaintiff was able to drive her car back to her parents’ home where she was then living. The plaintiff contacted her father by telephone. Her father had been at work. The plaintiff’s father then returned home and took her to the Dandenong Private Hospital. The plaintiff was treated at the Valley Private Hospital and allowed to go home on that day. The plaintiff’s major concern at that time was that she was six weeks’ pregnant with her child and was concerned about the effect of the accident on her pregnancy.[5]
[5]PCB 150-151
Medical treatment of the Plaintiff as a result of the transport accident
20 The plaintiff first presented at the Valley Private Hospital on 4 September 2017 at approximately 5.00pm. The observations of the plaintiff at the Emergency Department of the hospital stated:
“… Now has lumbar back pain 7/10 & clo[sed] chest pain 3/10. Chest strike to steering wheel. … .”[6]
[6]PCB 152
21 The plaintiff was assessed at the Valley Private Hospital and the following observations were made relevant to this case:
·The plaintiff did not lose consciousness as a result of the collision.
·Mild left-sided muscular pain in the neck.
·No midline tenderness and no abdominal pain.
·No pelvic pain.
·Does have some low back pain consistent with soft tissue muscular origin. No sciatica and no restriction of movement.
·As the plaintiff was pregnant, no x‑rays were taken.[7]
[7]PCB 50
22 On 8 September 2017, the plaintiff attended at her general practitioner, Dr Shameem Jahan, at the Craigieburn Super Clinic. At that consultation, the plaintiff complained of being involved in a motor vehicle collision three days earlier. The doctor noted that there was nil obvious injury. On that occasion, the plaintiff’s main concern was some discharge that may have been related to her pregnancy.
23 On 21 March 2018, the plaintiff contacted the Northern Health and received telephone advice from an antenatal section of the hospital. On that occasion, the plaintiff was complaining of back pain since the morning.[8] It is unclear from the hospital record whether or not the reporting of back complaint by the plaintiff related to her pregnancy, which was in its latter stages, or related to the transport accident.
[8]PCB 142
24 The next attendance by the plaintiff on her general practitioner was on 11 September 2018 in respect of back pain. At that consultation, Dr Jahan took a history from the plaintiff that she had suffered back, and neck pain off and on since the transport accident in September the year before. Dr Jahan took a history that the pain was radiating towards the plaintiff’s right leg and that her right leg was numb at night. Dr Jahan ordered a CT scan of the cervical and lumbar spine.[9]
[9]PCB 131
25 On 21 September 2018, the plaintiff was reviewed by Dr Abu Rahman at the Craigieburn Super Clinic. On that occasion, the plaintiff attended complaining of neck pain and back pain to the lumbosacral area and including radiculopathy. Dr Rahman’s examination revealed mild diffuse cervical and lumbar paraspinal tenderness. Dr Rahman noted limited flexion at the lumbar spine. Dr Rahman referred the plaintiff to physiotherapy treatment by Keep in Motion Physiotherapy.
26 On 5 October 2018, the plaintiff returned to be examined by Dr Abu Rahman at the Craigieburn Super Clinic. The plaintiff was complaining of back pain with radiculopathy at that consultation. The plaintiff was taking Tramadol PRN at that time. Dr Rahman placed the plaintiff on Lyrica, one tablet twice a day.
27 On 18 October 2018, the plaintiff again returned to Dr Abu Rahman at the Craigieburn Super Clinic. On this occasion, Dr Rahman referred the plaintiff to a psychologist and also a request by the plaintiff to be referred to a spinal surgeon. The plaintiff was prescribed Tramadol, 50 milligram capsules, one before bed.[10]
[10]PCB 133
28 In subsequent visits in November 2018, the plaintiff was requesting referrals to orthopaedic and spinal clinics either at St Vincent’s or Monash Hospital as advised by her lawyer.
29 On 21 November 2018, the plaintiff was prescribed Effexor and Panadeine Forte, together with a cessation of the Tramadol medication.
30 On 3 December 2018, Dr Jahan examined the plaintiff and found tenderness in the lower cervical spine and mildly restricted flexion. Dr Jahan also noted that there was restricted movement in the low back but no tenderness.
31 The plaintiff was referred to Dr Ali Klan Mehr, a rehabilitation specialist and neurophysiologist. The plaintiff was seen by Dr Mehr on 21 January 2019. The referral was for the management of chronic pain. Dr Mehr noted his clinical examination as follows:
“Her gait was normal. She could not toe walk and heel walk due to pain. She could not single-leg stand. Range of motion of her lumbar spine was globally limited. Quadrant test was positive. There was tenderness in the right buttock and upper lumbar spine up to lower thoracic spine in the midline and paraspinal region, especially in the right side. Range of motion of the hip joints were normal and pain-free. Neurologic exam[ination] of lower limbs did not show any significant neurological deficit.”[11]
[11]PCB 52
32 Dr Mehr commenced the plaintiff on 100 milligrams of Norflex,, and also Circadin SR, 2 milligrams nocte, for her sleep.[12] Dr Mehr ordered an MRI scan of the plaintiff’s lumbosacral spine. He noted that the MRI examination displayed a lumbosacral L5-S1 annular tear. At that time, Dr Mehr’s opinion was that it was appropriate for the plaintiff to attend a pain management program, and he recommended the continuation of the already existing psychological management.
[12]PCB 52
33 On 25 June 2019, the plaintiff was first reviewed by Dr Gavin Weekes, pain specialist, upon a referral from Dr Mehr. Dr Weekes noted on examination that the plaintiff’s flexion and extension of her lumbar spine aggravated her pain, extension more so. Dr Weekes recommended that medial branch blocks be used as a diagnostic procedure, but such procedure was rejected by the Transport Accident Commission. Dr Weekes noted that the MRI scan conducted on the lumbar spine on 7 August 2019 revealed no obvious abnormality.[13] Dr Weekes is no longer involved in the ongoing treatment of the plaintiff.
[13]PCB 62
34 The plaintiff is undergoing treatment from Dr Leonardo Congiu, a psychiatrist. Dr Congiu has described the plaintiff as suffering Major Depression in addition to a Chronic Pain Syndrome. He has prescribed the plaintiff Duloxetine and Lyrica. He noted that the plaintiff’s last attendance upon him was on 29 January 2020 and that she had made little progress during the course of his treatment of her.
35 The plaintiff has also received treatment from Ms Prue Gilligan, a psychologist. The psychological treatment has been taking place since July 2019. Ms Gilligan has diagnosed the plaintiff with Depression and noted that the plaintiff is becoming more disillusioned and hopeless as there has been little improvement in her health since she has been receiving medical treatment.[14]
[14]PCB 61
The psychological and psychiatric claim for serious injury
Credit of the Plaintiff
36 In this proceeding, the credit and reliability of the plaintiff was seriously challenged by Mr Jens QC on behalf of the defendant. The plaintiff was intensively and extensively cross-examined over the course of two days. At the commencement of the second day of evidence, the plaintiff stated that she had taken medications of Cymbalta and Panadeine Forte prior to giving her evidence. She also stated that she had taken Lyrica to assist her with sleep the night before. Despite taking that medication, the plaintiff was able to properly answer questions and follow the evidence as the matter proceeded.
37 In making an assessment of the plaintiff’s credibility, the starting point in this case was the DVD surveillance film showing the plaintiff which was taken on 24 January 2020. The first part of that surveillance film showed the plaintiff attending upon a childcare centre and seeking the assistance of an elderly lady to extricate her child from the car and take the child into the childcare centre. When she was walking, the plaintiff displayed a limp and clearly was not prepared to lift her child out of the car. The plaintiff stated that the child had been placed in the car by her husband before she drove to the childcare centre.
38 At a later time on the same day, the plaintiff is observed in the company of her husband walking down Lonsdale Street outside the Supreme Court building. The plaintiff again was limping, or appearing to limp, as she walked along the street. She then was observed to be standing in the street smoking a cigarette in the company of her husband. On several occasions she would rub or place her hand on her back in an action that appeared to be a response to pain. The plaintiff’s physical movement was, or appeared to be, guarded.
39 In the surveillance film on that day in respect to both locations, there was no indication that the plaintiff had any idea that she was being observed and filmed. I accept that the film clearly showed how the plaintiff walked and/or behaved in a physical sense on a normal routine day. The plaintiff, in her attendance at various medical appointments or assessments, has displayed the same physical disabilities or signs of experiencing pain.
40 The plaintiff was challenged about her statement in her affidavit about where she was living prior to the transport accident. The plaintiff insisted that she was living with her parents at Noble Park. In her history to Dr Firestone, psychiatrist, she had stated that she had moved to Craigieburn prior to the transport accident. The plaintiff, in her evidence when confronted with this statement, insisted that she moved to the Craigieburn address after her wedding, which was in October 2017. I accept that the plaintiff may have on occasions stayed with her husband to be in Craigieburn prior to the transport accident. Clearly, they were intimate prior to the transport accident.
41 I do not accept that the plaintiff had moved from her parents’ address in Noble Park on a full-time basis to live at Craigieburn with her husband until after they were married in October 2017. I do not accept that the history given to Dr Firestone by the plaintiff about her moving to the Craigieburn home prior to the transport accident being the explanation for why she ceased employment impacts upon her credibility. It may be that there was some confusion of communication between herself and Dr Firestone at the time of interview for a psychiatric assessment.
42 The plaintiff, in her first affidavit, stated that she was working full time prior to the transport accident.[15] It is clear on the evidence that prior to the transport accident, the plaintiff was not working full time. The plaintiff’s own evidence is that in the early part of 2017, she did not work for a period of approximately four months because she was looking after her mother who had become very ill and had been hospitalised.
[15]PCB 12, paragraph 4
43 The plaintiff’s taxation returns for the years 2015 and 2016 were part of exhibit “D”. It was clear from the 2015 taxation return that the plaintiff was working approximately full time for two separate employers. In the subsequent year of 2016, the plaintiff’s taxation return revealed no income. The plaintiff, in her evidence, stated that that was not correct and she could not explain why the taxation return for the year ending 2016 showed no income.
44 Exhibit 3 was tendered and this clearly showed the plaintiff had been in receipt of part-time employment at Hairhouse Warehouse in Forrest Hill. Between the dates of 29 August 2016 until 5 February 2017, the weekly pay sheets indicate that the plaintiff was working on a part-time basis at 10 hours per week. The plaintiff’s evidence was that her mother became ill and hospitalised in February of 2017.
45 On the state of the evidence, it is unclear exactly what the plaintiff’s employment situation was immediately before the transport accident in September 2017. I accept that the plaintiff may have been engaged in looking after her mother and the family home in Noble Park in the period immediately prior to the transport accident. In that case, she was not working in paid employment as a hairdresser.
46 I accept that the plaintiff did have a capacity to work as a hairdresser prior to the transport accident in a full-time capacity if the employment was available to her. I do not accept that the unclear manner in which the plaintiff has given her evidence about her employment immediately prior to the transport accident is an indicator of her dishonesty.
47 The plaintiff was also challenged about her ceasing to go to the gymnasium (“gym”) due to her injuries received in the transport accident. On the evidence, the plaintiff had stopped attending at the gym in the manner in which she had described herself as a “gym junkie” prior to the transport accident. The engagement by her with the care for her mother and father, and brother clearly interfered with her ability to attend the gym. Further, the plaintiff was pregnant at the time of the transport accident and had been so for approximately six weeks. I do not accept that the plaintiff’s inaccurate description of her gym attendance immediately prior to the transport accident amounted to a proper attack on her credibility.
48 The most significant issue in respect of the plaintiff’s credibility was her failure to state in her first affidavit and also to her psychiatrist, Dr Congiu, that she had previously been a recipient of psychiatric treatment as a result of the break-up of her first marriage in the 2014-2015 period. The plaintiff’s explanation for this failure to tell those doctors and/or mention it in her first affidavit is that she had got over it and put it all behind her. In a case where the plaintiff was seeking further psychiatric treatment after the transport accident, it is difficult to understand how she could leave that part of her prior treatment out of the histories to treaters, both psychologist and psychiatrist, or, more particularly, her affidavit. I note that in her second affidavit, the plaintiff refers to the difficulties she had with her former husband, and their marriage breakdown.
49 The plaintiff was also challenged about attending at the Craigieburn Super Clinic in the four-day period immediately after the transport accident. This challenge was based on the plaintiff saying that she had continued to live in Noble Park at the time of the transport accident. I note that the plaintiff had attended at the Craigieburn Super Clinic in relation to matters to do with her pregnancy prior to the transport accident. The plaintiff’s evidence about this attendance at the Craigieburn Super Clinic was that she had asked her husband who would be a good doctor to go and see once she moved to the Craigieburn area and was preparing to have her baby. I accept the plaintiff had gone to the Craigieburn Super Clinic in preparation for her movement from the Noble Park area to the Craigieburn area to live with her husband later on that year. Further, I note that the general practitioner at Noble Park had been the family doctor for a very long time and that the plaintiff did not want her parents to know that she was pregnant. The way to ensure that, was for the plaintiff to engage a different general practitioner to look after her during the course of her pregnancy and she did that at the Craigieburn Super Clinic.
50 The final point of attack on the plaintiff’s credibility, was there were no immediate complaints of pain and difficulty with her back, in particular as a result of the transport accident. I have previously noted that the plaintiff attended upon the Valley Private Hospital on the day of the accident after being taken there by her father. Part of her complaint on that day was that she did have pain in her back. The other immediate notation that involved the plaintiff’s complaint of a back injury arising from the transport accident was a text message setting out to one of the parties involved in the transport accident that she had a very sore back. That is in a text message dated 5 September 2017.[16]
[16]PCB 147
51 I accept that the plaintiff did complain of low back pain immediately around the time of the transport accident, including her attendance to the Valley Private Hospital, her text message to the other party involved in the accident and her attendance upon the general practitioner at the Craigieburn Super Clinic on 8 September 2017.
52 I conclude that the plaintiff is a credible and honest witness, although on occasions it is appropriate to acknowledge that she may have been confused about some detail of events and the sequencing of them. I have had the advantage of observing the plaintiff give evidence over two days in the witness box and it was clear to me that she has attempted to give a true and accurate description of her complaints and the evidence around her current condition. I would describe her as a person who has, for reasons which will be further explored in this judgment, decompensated as a result of the transport accident. The decompensation I refer to does not amount to illness behaviour and I do not accept that she is displaying illness behaviour in that sense.
Psychiatric and psychological or behavioural disturbance or disorder
53 In this proceeding, the plaintiff claims to have suffered a severe long-term mental or severe long-term behavioural disturbance or disorder as a result of the transport accident. The law in respect of this head of serious injury application is that the consequences are to be “severe” in order to satisfy the test.
54 I dismiss the plaintiff’s application for serious injury certification on the basis of a severe long-term mental or severe long-term behavioural disturbance or disorder for the reasons outlined below.
55 The plaintiff has suffered two periods or episodes of psychiatric or mental disorder prior to the transport accident in this proceeding. In the history given by the plaintiff to Dr Firestone, who examined the plaintiff on behalf of the defendant in this matter, she sets out the two episodes. In respect of the episode where she was attending to her general practitioner at the age of nineteen and was referred to counselling for her behavioural volatility, the plaintiff said she had no memory of that treatment. She accepted though that the general practitioner’s notes set out that treatment at the time.
56 More particularly, the plaintiff acknowledged that she had used the services of psychologists and a psychiatrist, Dr Nallaratnam, during the stressful divorce of her husband. She also acknowledged that she had been prescribed antidepressant medication at that time. Her history to Dr Firestone was that she never took the antidepressant medication in 2015.
57 In June 2015, Dr Nallaratnam, psychiatrist, wrote to the plaintiff’s general practitioner setting out how her condition had settled and that the plaintiff had returned to work as a hairdresser.[17] The plaintiff had been prescribed Lexapro in April of 2015.[18] In relation to this proceeding, the plaintiff has been treated by Ms Prue Gilligan, psychologist, and Dr Leonardo Congiu, psychiatrist. She has also been assessed by Dr Turnbull, psychiatrist, and Dr Firestone for the purposes of this litigation.
[17]Exhibit C
[18]Exhibit 2
Ms Prue Gilligan
58 Ms Gilligan, psychologist, prepared three reports dated 7 August 2019, 15 August 2019 and 5 March 2020. It appears from Ms Gilligan’s initial report that she commenced treating the plaintiff in July of 2019.[19] At that time, Ms Gilligan diagnosed the plaintiff as suffering from symptoms of Depression. Ms Gilligan’s treatment was cognitive behaviour strategies, together with mindfulness.
[19]PCB 58
59 In her second report, Ms Gilligan, noted that she had not been told about the previous psychiatric treatment that the plaintiff had received in 2015. The explanation given was as follows:
“At the time she said she was seeing a psychiatrist but Sevgi reported not remembering being given a mental health diagnosis and she refused medication as she felt she didn’t need it. She sought mental health support from this psychiatrist for a few sessions before feeling better. … . [20]
[20]PCB 60
60 In her final report, Ms Gilligan stated that:
“… However over time I have noticed that Sevgi is becoming more and more disillusioned and hopeless that there will be any change or any improvement in her health or in the support she is receiving. …
Sevgi’s symptoms are in line with a diagnosis of Depression which she has received. … .”[21]
[21]PCB 61
Dr Leonardo Congiu
61 Dr Congiu, psychiatrist, prepared a report in respect to this proceeding dated 17 February 2020 and noted that the plaintiff had no previous history of psychiatric illness. It is clear from his report that he was not given any history of the two prior psychiatric events when the plaintiff was nineteen or, more relevantly, in 2014-2015. In his report, Dr Congiu gave the following opinion:
“At consultation she presented as a profoundly depressed young woman. Her mood was unvarying through the consultation. There were no psychotic features. Her self-esteem was low. She was apprehensive about her future and her health.
I concluded that Mrs Aslan was suffering from Major Depression in addition to a chronic pain syndrome. … .”[22]
[22]PCB 66
62 Dr Congiu noted that the plaintiff was highly likely to need hospital treatment if the outpatient management of her depression failed. In Dr Congiu’s opinion, the plaintiff was totally incapacitated from work from a psychological point of view and that her prognosis was guarded.[23]
[23]PCB 67
Dr Leon Turnbull
63 Dr Turnbull, psychiatrist, prepared a report dated 12 February 2019. This report is prior to any treatment by Ms Gilligan or Dr Congiu. Dr Turnbull took a history that the plaintiff had no psychiatric history. He diagnosed the plaintiff as suffering from a Major Depressive Disorder which required active treatment. He also noted there were Post-traumatic Stress Disorder features including nightmares in respect of the motor vehicle accident.
64 Dr Turnbull then reassessed the plaintiff on 19 August 2019. At that stage, the plaintiff had been receiving treatment from Ms Gilligan, psychologist. In this report, Dr Turnbull noted as follows:
“I think I failed to cover it in my previous report, but Ms Aslan did confirm that her previous marriage was tainted by domestic violence and she did consult a psychiatrist back in around 2011 or 2012, was provided some medications, never took them, and the marriage dissolved in 2013, and she does not feel that has a current bearing on her mental state.”[24]
[24]PCB 78
65 Dr Turnbull noted his diagnosis as follows:
“The diagnosis remains unchanged of a major depressive disorder with some features of traumatisation. Part of her condition, in terms of the post-traumatic phenomena, is directly psychologically related to the motor vehicle accident, and part of her condition is secondary to her ongoing physical condition and that of pain.”[25]
[25]PCB 80
66 Dr Turnbull also noted that he had not previously obtained a psychiatric history from the plaintiff, but having knowledge of it at this stage did not alter his previous opinion. Dr Turnbull was of the opinion that the plaintiff did not have any suitable employment that she could engage in given her presentation and condition to him.[26]
[26]PCB 81
67 Most significantly, Dr Turnbull states as follows:
“… If she undertakes treatments that improve her physical condition, then there is the prospect of her psychiatric status improving significantly. However, if her physical state does not improve, then her psychological state is likely to remain quite damaged.”[27]
[27]PCB 81
68 I note this part of Dr Turnbull’s opinion is more relevant to an assessment of the plaintiff’s consequences in respect of the physical injury to her back.
Dr A Firestone
69 Dr Firestone, psychiatrist, prepared a report dated 6 March 2020. He examined the plaintiff on behalf of the defendant. He took a history from the plaintiff that she was currently on the following medications:
(a)antidepressant, Cymbalta, 60 milligrams taken twice daily;
(b)pain medication, Lyrica, 150 milligrams taken at night to assist the plaintiff’s sleep; and
(c)that the plaintiff’s ingestion of Panadeine Forte was two to three tablets a day.
70 Dr Firestone noted that in the past the plaintiff had taken as many as eight to ten Panadeine Forte tablets a day. Dr Firestone noted his mental state examination as follows:
“Over sedation made her mood difficult to assess. It appeared reactive, and she shed tears appropriately to the subject matter on one occasion only, expressing sadness that she was no longer hairdressing. However, her description of her lifestyle was consistent with chronic depression, and she is on a high dose of antidepressant medication. … .”[28]
[28]Exhibit E, page 6
71 Dr Firestone expressed the opinion that on the information available to him, that the plaintiff displayed some illness behaviour combined with a functional neurological syndrome.[29] Dr Firestone also stated, in his opinion, the primary psychiatric diagnosis is as follows:
“1. Somatic symptom disorder with moderately severe persistent predominant pain (DSM-5), i.e. a chronic pain syndrome.
2. Opiate dependence …
3. Chronic pain and opiate oversedation have resulted in major depression of moderate severity with anxious features.”[30]
[29]Exhibit E, page 11
[30]Exhibit E, page 11
72 Ultimately, Dr Firestone’s opinion was that the plaintiff required a pain management program from a pain physician in order to enhance her chances of managing the pain.[31] He noted that the plaintiff could describe no pleasure in her life whatsoever and that she merely existed.
[31]Exhibit E, page 12
73 In any assessment of a psychiatric injury, a large part of it is dependent upon an accurate description by the plaintiff of, first of all, her psychiatric history and, secondly, of the symptoms that she currently suffers. In this case, whilst I accept the plaintiff has given an as accurate description of her symptoms as she is able to, the combination of the medical opinions is that a large part of her symptomology in a psychiatric sense is based on the pain that she experiences. The pain that the plaintiff is experiencing is a physically-based or organically-based pain rather than a psychiatrically-based one.
74 I conclude that the psychiatric symptoms and diagnosis of Depression and Chronic Pain Syndrome on a psychiatric basis do not amount to the level of “severe” as required under the Act.
75 The application for Part C certification for serious injury is dismissed.
Injury to the Plaintiff’s back as a result of the transport accident
76 I have previously set out the medical treatment the plaintiff has received in respect of her symptoms to her lower back as a result of the transport accident injuries. I will not repeat them here. For the sake of completeness, however, it is necessary to outline the results of radiological examinations of the plaintiff taken as a result of her transport accident.
77 In respect of the plaintiff’s back, there have been three separate radiological examinations performed. The first examination was a CT scan of the lumbar spine which was performed on 19 September 2018. The conclusion of that CT scan was that there was no acute bony injury detected.[32]
[32]PCB 32
78 The second radiological examination of the plaintiff was ordered by Dr Ali Mehr. On 25 January 2019, the plaintiff underwent an MRI scan of the lumbar spine. On that occasion, she was complaining of right-sided lower back pain with radiation into the right lower left leg. The findings of that MRI scan are as follows:
“Findings: Normal alignment and disc heights. Midline annular tear at L5-S1 which can be associated with radicular type symptoms in the absence of nerve root compression. Remaining discs unremarkable. No herniation, central canal stenosis, cord or nerve rood compression and the intervertebral foramina are all widely patent. Conus and cauda equina are unremarkable. No spinal neoplasm or abnormality in the paravertebral soft tissues. No discitis, fracture or pars stress response.
Conclusion: L5-S1 annular tear otherwise normal.”[33]
[33]PCB 34
79 The final radiological examination of the plaintiff was ordered by Dr Weekes. An MRI scan of the plaintiff’s lumbar spine was performed on 7 August 2019. On that occasion, the plaintiff was complaining of low back pain radiating to the left leg.
“Conclusion:
1. Normal MRI exam of the lumbar spine.
2. Minimal fluid noted in pelvis ? of significance.”[34]
[34]PCB 37
80 The two MRI examinations of the plaintiff’s lumbar spine conducted some seven months apart reaches different conclusions. The preponderance of the medical opinions is that the plaintiff has suffered some soft tissue injury to her lumbar spine as a result of the transport accident. In part, this is confirmed by the findings of the MRI scan conducted in January 2019.
Medical opinions in relation to the Plaintiff’s lumbar spine
Dr Abu Rahman
81 Dr Rahman is the general practitioner for the plaintiff. He prepared two reports dated 16 March 2019 and 6 February 2020.
82 In relation to the complaints made by the plaintiff in respect of her lower back pain, Dr Rahman’s opinion is as follows:
“… Chronic lower back pain with tingling/numbness in the legs, Anxiety/Depression secondary to chronic pain.”[35]
[35]PCB 47
83 Dr Rahman’s opinion was the plaintiff was incapacitated from work for the foreseeable future. He was unable to specifically set out the degree of incapacity for work.[36]
[36]PCB 47
Dr Ali Mehr
84 Dr Mehr, rehabilitation medicine and neurophysiologist, prepared two reports dated 21 January 2019 and 30 March 2019. The plaintiff had been referred to Dr Mehr by the general practitioner for pain management. Initially, Dr Mehr prescribed Norflex, 100 milligrams per day, and also Circadin SR, 2 milligrams nocte, to assist the plaintiff with her sleep.
85 Dr Mehr gave his opinion as follows:
“Chronic lumbosacral spine pain and thoracolumbar spine pain with radiation to the right buttock and lower limb. This is aggravation of a lumbar and thoracolumbar spondylosis.
… .”[37]
[37]PCB 53
86 Dr Mehr stated that the plaintiff did not have any capacity to return to employment at that stage. He also stated as follows:
“The chronic pain condition and associated disability has affected her participation in different recreational activities, minimised her capability to socialise and her parenting capability. I think this condition will continue for [the] foreseeable future.”[38]
[38]PCB 54
Dr Gavin Weekes
87 Dr Weekes, pain specialist, prepared a report dated 29 November 2019. The plaintiff was referred to Dr Weekes for treatment by Dr Mehr. Dr Weekes was the treating practitioner who referred the plaintiff for the MRI scan which was conducted in August of 2019. Dr Weekes expressed his opinion as follows:
“Ms Aslan’s diagnosis is most likely a combination of lumbar spondylosis, myofascial pain and central sensitisation driving her ongoing chronic pain issues. It is possible that some of her pain may be arising from her lower lumbar facet joints or sacroiliac joints despite having normal radiological investigations of these structures and hence my application to proceed with the diagnostic procedures as detailed above.
…
It is my opinion especially considering her ongoing pain and disability has been present since 2017. It is likely that this incapacity will continue for the foreseeable future.”[39]
[39]PCB 63
88 In respect of the plaintiff’s ability to return to employment, Dr Weekes stated as follows:
“In my opinion, considering her presentation to me and considering the levels of pain reported, it is highly unlikely she would be able to obtain and maintain employment on a reliable and consistent basis on the open market.”[40]
[40]PCB 64
Dr Leon Turnbull
89 Dr Leon Turnbull is a psychiatrist who prepared a report dated 19 August 2019.
90 In relation to the plaintiff’s low back injury, Dr Turnbull’s opinion concerning the plaintiff’s pain was as follows:
“My diagnosis remains unchanged, that is of a major depressive disorder with features of traumatisation, and in my opinion, that is mostly due to her ongoing physical condition and is partly due to the recollection of the car accident itself.”[41]
[41]PCB 87
91 This opinion of Dr Turnbull is supportive of the proposition relied upon by the plaintiff that the physical pain is causing, or a cause, of her ongoing depressed state. The fact that the plaintiff is suffering from a depressed state due in part to a response to her physical pain is a matter that is relevant to a consideration of the injury to the plaintiff’s lower back in this case.
Dr David Kennedy
92 Dr Kennedy, sports and industrial physician, prepared a report dated 29 March 2019 for the purposes of this application. Dr Kennedy noted the plaintiff was taking Panadeine Forte to treat her pain symptoms. On examination, Dr Kennedy made the following observations:
“On examining the lumbosacral spine there was tightness and tenderness over the erector spinae and paravertebral musculature, worse on the right side, with some muscle guarding and spasm. There was tenderness over the intervertebral disc spaces and posterior facet joints at L4/5 and L5/S1, worse on the right side. There was tenderness over the right sacroiliac joint. … There were diminished deep reflexes, particularly the deep ankle reflexes, bilaterally. The plantar reflexes were down going. There were no signs of any significant motor or sensory loss.[42]
[42]PCB 93
93 Dr Kennedy noted the MRI scan of 25 January 2019 findings.
94 Dr Kennedy expressed his opinion as follows:
“The physical injuries sustained to her spine have substantially stabilised and Mrs Aslan has continuing problems in her spine, particularly her lumbosacral spine, with restrictions in relation to her physical capacities and capabilities following the injury sustained to her spine at the time of the transport accident on 4 September 2017.”[43]
[43]PCB 94
Dr Ales Aliashkevich
95 Dr Aliashkevich, neurosurgeon and spinal surgeon, prepared two reports dated 2 August 2019 and 16 January 2020 for the purposes of this application. In the main, Dr Aliashkevich’s reports are summaries of the other medical practitioners that have prepared reports in respect of the plaintiff’s condition. In the latter report, Dr Aliashkevich stated the opinion as follows:
“As outlined in my previous report, the nature of your client’s injury and incapacity is consistent with the musculoskeletal whiplash injury and small midline L5/S1 annular tear likely sustained during the motor vehicle accident on 4/9/2017. Although I’m not a qualified pain specialist or rheumatologist, but based on the character of your client’s symptoms with widespread pain distribution and presence of muscular trigger points on examination, I had an impression that the incident on 4/9/2017 has started a cascade of chronic pain syndrome, typical for central sensitisation and likely subsequent evolution of a myofascial pain syndrome/fibromyalgia syndrome. In my opinion, your client is experiencing the pain amplification/distortion from the development of central sensitisation on a background of organic musculoskeletal injury.”[44]
[44]PCB 117
Dr Peter Blombery
96 Dr Blombery, consultant physician, vascular disease and pain medicine, prepared a report dated 15 February 2020 in respect of this application. In Dr Blombery’s opinion, speaking collectively in respect of the pain experienced by the plaintiff in her neck, low back and right shoulder, he states as follows:
“It is my opinion that the accident resulted in those previously asymptomatic degenerative changes in the lumbar spine being rendered symptomatic. It is my opinion also that the pain in the affected area had been accentuated because of the development of a pain syndrome with pain pathway sensitisation in the affected area.”[45]
[45]PCB 123
97 Dr Blombery noted that there were significant psychological factors playing a role in the plaintiff’s case which would enhance the experience of pain that are not under her conscious control.
98 Dr Blombery, when asked about an organic basis for the plaintiff’s injury to her lower back, stated his opinion as follows:
“The investigations which were primarily radiological demonstrated minor degenerative changes in the lumbar spine but otherwise no major abnormality. This by no means precludes an organic basis to her injuries and it is my opinion that there is an organic basis but this is because of pain pathway sensitisation which is difficult to demonstrate without invasive and expensive investigations using techniques such a functional MRI.”[46]
[46]PCB 124
99 In Dr Blombery’s opinion, the plaintiff did not have any work capacity due to the severity of her ongoing pain and need for medication to control that pain.[47]
[47]PCB 125
The Defendant’s medical opinions
Dr John Owen
100 Dr John Owen, consultant orthopaedic surgeon, prepared a report in respect of this matter on 29 January 2020. Dr Owen noted the plaintiff was taking Cymbalta, Panadeine Forte and Lyrica.[48] After an examination of the CT and MRI scans of the plaintiff’s lumbar spine, Dr Owen noted as follows:
“The findings on the imaging do show some anomalies, particularly at the L5/S1 level but her symptoms and signs are not really indicative of that sort of pathology. In other words, her presentation is one of showing a significant psychosocial disorder rather than an organic one.”[49]
[48]DCB 7
[49]DCB 9
101 Dr Owen summarised his opinion of the plaintiff’s condition as follows:
“As I say the issues from her transport accident are mainly chronic pain and psychosocial problems, not an organic problem. … .”[50]
[50]DCB 11
102 Dr Owen’s opinion is that the plaintiff is suffering from a Chronic Pain Syndrome which is entirely psychologically based. I note that this opinion is different from the majority of other medical opinions which state there is a physical basis for the plaintiff’s experience of pain and relate that pain to an organic injury from the transport accident.
Dr Majid Rahgozar
103 Dr Rahgozar, consultant occupational physician, prepared a report dated 7 January 2020 for the purposes of this application. Dr Rahgozar noted that the plaintiff walked slowly with a limp, favouring her right lower limb. I note here that that was consistent with the images on exhibit A, the DVD surveillance film of the plaintiff which was shown at the commencement of the proceeding. In Dr Rahgozar’s opinion, the finding of the lumbosacral MRI scan in January 2019 is not regarded as a significant finding and is not related to the plaintiff’s current presentation. Dr Rahgozar noted as follows:
“… The most likely diagnosis of her condition is likely to have been a musculoligamentous injury to the cervical spine or lumbosacral spine and otherwise known as whiplash-type injury. These injuries tended to resolve within 8 to 16 weeks in a woman of her age and constitution. ….”[51]
[51]DCB 20
104 Dr Rahgozar expressed the following opinion:
“There are psychosocial stressors in the presentation which have been detailed above along with a degree of non-organic component of her presentation and illness behaviour.”[52]
[52]DCB 22
105 Dr Rahgozar went on to say:
“In my opinion and from her physical health point of view she does not have any pathology arising from her spine, shoulder girdle or pelvic girdle. She does not require any treatment and the prognosis is good. … .”[53]
[53]DCB 23
106 Dr Rahgozar’s final statement on the plaintiff’s condition is as follows:
“Ms Aslan’s presentation is rather complex. The initial injuries likely musculoligamentous nature are likely to have resolved by now however her pain has become chronic in a context of a complex set of psychosocial circumstances which have been detailed above. Her presentation also had elements suggestive of non-organic component to her presentation and illness behaviour. In my opinion assessment by a psychiatrist is reasonable.”[54]
[54]DCB 24
107 Dr Rahgozar and Dr Firestone are the only medical practitioners or examiner who have stated that the plaintiff was showing signs of illness behaviour.
108 The preponderance of the medical opinions in this case is that the plaintiff has initially suffered a physical injury to her lumbar spine which was in part demonstrated by the MRI scan examination in January of 2019. I accept the opinions of the doctors that state, as a result of that initial physical insult to the plaintiff’s lower spine, she has suffered from a sensitisation of the soft tissue injuries around her lower spine, causing her pain. The pain has an organic basis.
Consequences to the Plaintiff of the lumbar spine pain
109 The plaintiff relies upon her affidavits dated 25 March 2019 and 12 February 2020, together with her husband’s affidavit dated 12 February 2020 to outline the consequences of the low back injury to her.
Sleep
110 The plaintiff states that her sleep is disturbed due to her physical injuries. She states that she often wakes during the middle of the night because of pain.[55] The plaintiff has been prescribed Lyrica to assist her in obtaining a good night’s sleep. In the past she has been prescribed Circadin. I consider that the interruption to the plaintiff’s sleep is a considerable consequence for the plaintiff.
[55]PCB 15, paragraph 20
Pain
111 The plaintiff has set out in her affidavit that her back pain is worse than her neck pain. She states that the lower back pain radiates into her hip and down her right leg. On occasions, she experiences tingling and numbness. She states that she walked with a limp.[56]
[56]PCB 15, paragraph 18
112 The plaintiff has consistently complained to doctors about these same symptoms to her lower back and right leg. I accept that the plaintiff has experienced pain in her lower back and into right leg. Over the course of treatment, the plaintiff has been prescribed a number of medications to deal with her pain. She has been given Panadeine Forte, Norflex and Lyrica.
Medication
113 I accept that the plaintiff is currently medicated using an antidepressant, Cymbalta, Panadeine Forte and Lyrica.[57] These medications are significant. The plaintiff stated in her evidence that she had cut back on the amount of Panadeine Forte that she had previously taken. It is to be noted that the medical practitioners were concerned about the codeine dependency which has been referred to earlier in these reasons. In the course of her evidence, the plaintiff stated that she self medicates with alcohol. She stated that she drank a glass of scotch before going to bed in order to assist her with her sleep and to make her “numb”.[58]
[57]PCB 85 and 86
[58]Transcript (“T”) 95
Activities of daily living
114 The plaintiff has a limited ability to engage in the activities of daily living. I accept the plaintiff’s husband’s evidence that the plaintiff is not interested in visiting family and friends and is frequently crying and really depressed.[59]
[59]PCB 25 and 26
115 The plaintiff is unable to engage fully in housework as she suffers from pain. Her husband deposes to the limited activities that the plaintiff performs around the house. Mr Aslan described the plaintiff as being able to do light, basic housework and cooking.[60]
[60]PCB 25
Sport
116 The plaintiff had described herself as being a “gym junkie”. I accept that immediately prior to the transport accident, the plaintiff had reduced her attendance at the gymnasium and training with a personal trainer due to her mother’s illness and requirement for support. The plaintiff, in her affidavit, states that she seldom goes to the gymnasium now because of pain.[61] I accept the plaintiff’s evidence in this regard.
[61]PCB 15
117 The plaintiff was challenged about cancelling her gym membership prior to the transport accident. In the course of evidence, she stated that she did not cancel the gym membership prior to the transport accident but did so after it.[62] I regard the plaintiff’s inability to be able to engage in fitness activity, and particularly her gym work, as a considerable consequence for her. The plaintiff was clearly someone who engaged in physical activity and sought the assistance of medical advice and the prescription of Duromine to control her weight prior to the transport accident.
[62]T72
Work
118 The fact that the plaintiff can no longer work as a hairdresser is the most significant consequence for the plaintiff. Her initial plan was to obtain employment in the Craigieburn area once she was married. The alternative position was that she would set up a home hairdressing business in the garage at the family home. Due to her injury, that is the pain and suffering to her lumbar spine and the consequential psychological reaction to the pain, the plaintiff has been unable to engage in either of those forms of employment. The medical evidence is that this position appears to be for the long term, and I accept that to be the case. The fact that the plaintiff is unable to engage and pursue a career or work as a hairdresser is a very significant consequence for her.
119 I accept that in the years leading up to the transport accident, the plaintiff had had periods where she was not working. The explanation for some of the time off work was either her trip to Turkey, where she married her first husband. The other period of time that is clearly documented was that the plaintiff had ceased employment in order to look after her mother in the early part of 2017. It was clear up until February 2017 that the plaintiff was at least working part time. She had the capacity to work full time if it was necessary. The diminution in her ability to be gainfully employed is a very significant consequence for the plaintiff.
Paul Simon, solicitor
120 A significant attack on the plaintiff’s credit was based on the fact that she had not sought any direct medical treatment for her low back injury or psychiatric injury prior to seeing a Mr Paul Simon, solicitor. The evidence around this issue was that the plaintiff stated that she “needed help”. Through the intervention of one her aunties the plaintiff was introduced to Mr Paul Simon, solicitor. In the course of evidence, the plaintiff stated that Mr Paul Simon had recommended that she see a specialist in relation to her injuries.[63] On this issue, the following evidence was given:
[63]T66
Q: “Now you say that your solicitor became Mr Paul Simon?---
A: Yes.
Q:And when was it that you – or how did you meet up with – how did you find him?---
A: How did I find him?
Q: Yes?---
A: Through a family – through a family friend.
Q: Which family friend was that?---
A: My auntie.
Q: Your auntie?---
A: M’mm.
Q: And where was it that you saw him?---
A: At her house.
Q: At your auntie’s house?---
A: Yeah.
Q: In what suburb?---
A: Cranbourne. Cranbourne.
Q: Cranbourne?---
A: Yep.
Q:How long did it take you to get from Craigieburn to 20 Cranbourne?---
A: I went with um, my mum.”[64]
[64]T123, L10-21
121 The fact that the plaintiff did not seek any direct medical intervention in respect to her lower back and/or psychiatric injuries prior to September 2018 does not take away from the fact that she has suffered the pain and injuries as described in these reasons for judgment. The plaintiff delivered her child in April of 2018. For a period between April and September 2018, the plaintiff was undoubtedly involved in the rearing of her newborn child. When the pain to her spine and consequential impact upon her mental wellbeing did not abate, she, in her words, “needed help”. The plaintiff’s aunty was able to put her in contact with a solicitor, Mr Paul Simon. Mr Paul Simon has recommended that she obtain specialist medical opinions about the condition of her back and other medical complaints.
122 The plaintiff is entitled to seek legal advice about matters, and if those matters then direct her to further medical assistance, it is all part of her treatment and the exercise of her legal rights.
123 Whilst another Paul Simon wrote and sang the song called “A Bridge Over Troubled Waters”, the attack on the plaintiff for engaging Paul Simon, the solicitor, to advise her is a “bridge too far”.
Conclusion
124 I find that the plaintiff has failed to establish that her psychiatric and psychological condition as a result of the transport accident has satisfied the level of “severe” which is required under the Act.
125 On the basis of the medical evidence in this case and the evidence that I accept from the plaintiff, the plaintiff has satisfied the statutory test that the consequences arising from the physical injury to the plaintiff’s spine, and in particular lower back, are at least very considerable and more than significant or marked.
126 I order as follows:
(1)Leave is granted to the plaintiff pursuant to s93(17)(a) of the Act to bring proceedings for damages in respect of a physical injury to the plaintiff’s lumbar spine incurred as a result of a transport accident which occurred on 4 September 2017.
(2)The plaintiff’s application pursuant to s93(17)(c) of the Act to bring proceedings for psychological and psychiatric injury arising from a transport accident on 4 September 2017 is dismissed.
Cost Orders
127 I propose to make the following order in respect of costs:
(1) The defendant is to pay the plaintiff’s costs to be assessed by the Costs Court including any reserved costs to be taxed on the County Court Scale in default of agreement.
(2) Certify for two Counsel:
(a)Certify for Senior Counsel at $6,000 per day for three days and two hours of special conference at $600 per hour;
(b)Certify for Junior Counsel at $3,000 per day for three days and two hours of special conference at $300 per hour.
(3) Liberty to apply.
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