Asquith v TAC
[2014] VCC 1107
•22 July 2014
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01760
| JESSICA ASQUITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 7, 8, 9 July 2014 | |
DATE OF JUDGMENT: | 22 July 2014 | |
CASE MAY BE CITED AS: | Asquith v TAC | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1107 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Transport Accident; application for leave to bring damages claim; section 93 Transport Accident Act 1986; paragraph (a) of definition of “serious injury”; relevance of reactive depression; application dismissed.
Legislation Cited: Sections 4, 17, 93 Transport Accident Act 1986;
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Phelan v Transport Accident Commission [2013] VSCA 306
Judgment: The application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J. M. Forbes | Riordans Legal |
| For the Defendant | Mr P. Jens with Ms S. Manova | Transport Accident Commission |
HIS HONOUR:
Background
1 Ms Asquith is twenty-three years of age. She brings this proceeding seeking leave to commence a damages claim against the driver of another vehicle involved in a collision with her car on 29 January 2011.
2 On 29 January 2011, Ms Asquith was driving her car along the Ballarat-Daylesford Road. At the intersection with Bungaree-Creswick Road, she said the other vehicle failed to give way to her car. She told Dr Michael Epstein, a consultant psychiatrist who assessed her for medico-legal purposes in 2012, that she was driving at 100 kilometres per hour. She braked heavily, but the front of her car collided with the rear passenger side door of the other car. Her car was written off.
3 Ms Asquith told me in her evidence that she did not believe she lost consciousness at the scene of the accident. She was restrained by the seatbelt and the airbag inflated, leaving her pinned to her seat. She told Dr Epstein that the door of her car jammed.
4 An ambulance took Ms Asquith to the Emergency Department of the Ballarat Base Hospital. She was complaining of back pain.
5 Ms Asquith was admitted to a ward at the hospital and underwent x-rays and scans. She had been fitted with a hard collar at the scene of the accident and this was later replaced with a Philadelphia collar. She was found to have suffered a fracture of the first thoracic vertebra.
6 Ms Asquith was discharged from hospital on 1 February, wearing the Philadelphia collar and a thoraco-lumbosacral brace for her back. She received what she described as “strong analgesic medication” for her pain. This apparently included Endone. Whilst she had been living independently at the time, her injuries required her to return to her parents’ home for care and support. According to one of her affidavits, at this stage she was “unable to drive, exercise, or lift things and I needed help with most aspects of self-care such as showering, toileting and dressing.” She was treated initially by her family general practice clinic in Euroa, with the first visit on 3 February 2011. Dr Altson, one of the doctors at the Euroa Medical Family Practice, noted on 3 February 2011:
“MVA T-boned car has three months in body brace. Still a lot of pain.”
He noted:
“Fracture T1, L1 L3 fractured ribs.”
He gave her prescriptions for Endone, Panamax and Brufen.
7 Ms Asquith attended Dr Altson again on 11 February 2011, at which time the doctor noted:
“Has stopped taking all pain meds. Note compn fracture T1 and L1.”
8 On 11 February 2011, Dr Altson referred Ms Asquith to the Goulburn Valley Hospital Fracture Clinic. There was no report from the Goulburn Valley Hospital in evidence as to her assessment there. She continued under the management of the Euroa Medical Family Practice. Her braces were removed and she said she was “required to undergo x-rays every six weeks for a period of time”. She also underwent regular physiotherapy until November 2011, but she “found it was not really helping all that much”.
9 As 2011 wore on, Ms Asquith says she began to suffer panic attacks and she was referred to Ms Meighan, a psychologist, whom she saw regularly until November 2011.
10 Ms Asquith’s return to Euroa was not entirely dictated by the accident. She had been residing in Ballarat in a relationship which had come to an end (Transcript (“T”) 37, Lines (“L”)16–21).
11 Ms Asquith said that she found the analgesics prescribed for her had side effects, “such as feeling sedated and being unable to remember things”. She ceased taking that medication as a result. The only prescription medication which she now receives is Effexor, which is an anti-depressant. She has not been prescribed analgesics for years. She still has a supply of Endone which she takes when her pain is “particularly bad”. She remarked, “However I find that if I take the Endone, it wipes me out 1–2 days.” As at the date of swearing an affidavit in January 2013, she said that her symptoms included daily pain and stiffness in her neck, with neck pain “always present although it varies in severity depending upon what activities I undertake and the weather”. She said this pain was “exacerbated by activity”. The pain radiated to the front of her head and behind her eyes, and was often associated with headaches which she said she had about four times a week. These headaches might last from 20 minutes to 48 hours. She said her neck pain and headaches were aggravated by exertion and fatigue, and neck pain radiated into her shoulders.
12 Ms Asquith also complained of “upper and lower back pain”. Again, she said it was always present, though it varied depending on activity. It was also aggravated by exertion and fatigue, and sometimes there was pain in her buttocks on the left side. She said the neck and back pain affected her ability to sleep and that she woke three or four times a night due to pain “and/or worry”. Sometimes she is able to sleep for 10 to 13 hours. Other nights, she sleeps only two to three hours. In the result, she said she felt constantly fatigued and sometimes had to sleep during the day “about three times a week”. She said she has also suffered problems with memory and concentration, and that her memory is “atrocious”.
13 Ms Asquith said in her affidavit that she had good days and bad days. Her mood was often “down” and she suffered from mood swings. She was easily frustrated and irritated, but felt “flat” most of the time. She said her self-esteem and self-confidence were reduced, and she felt depressed most of the time. She said that initially after the accident, she suffered nightmares two or three times a week with frequent flashbacks. As at January 2013, she said:
“I now no longer have the nightmares but continue to experience flashbacks. I am a fearful car passenger and have experienced situations where I have had to ask the driver to pull over to the side of the road because of the anxiety I was experiencing as a passenger.”
She complained of frequent panic attacks immediately after the accident, but by January 2013, she said she only experienced them “in the car”. They involved feelings of “shakiness … choking … feeling detached and sometimes blurred vision”.
14 Ms Asquith said that she was born in Euroa and was educated to Year 12 at the FCJ College at Benalla, completing Year 12 in 2008. In 2009, she said she completed a Diploma of Beauty Therapy at the Australian College of Hair Design and Beauty.
15 Ms Asquith said her ambition always was to work in the medical field. Her parents are ambulance officers, though she denied that this played any part in the formation of her ambitions. I did not understand her to aspire to complete a medical course with a view to becoming a medical practitioner; rather, her aspiration was to be a paramedic. Her performance at VCE in 2008 was disappointing, she says, because of her lack of application to her studies. In cross-examination, she said she was unaware of what her VCE score was and could not give even an approximation of the number. She said her immediate objective was to establish herself in life by commencing earning with a view to carrying on to further studies thereafter. Her parents, she said, were not supportive of any aspiration for her to undertake university studies (T 38).
16 In August 2012, she began work as a therapist and masseur at Daylesford Day Spa. She said she was employed on a casual basis, working 20 to 40 hours per week and earning approximately $27.50 per hour. She said:
“My work required me to stand on my feet for most of the day whilst I gave my clients facials, massages and body treatments.”
17 Following the accident, she said she returned to work at the spa in late June 2012, but she conceded in cross-examination this return to work coincided with the termination of her loss of earnings benefits from the Transport Accident Commission at the 18 month mark following the subject accident. She said she was unable to continue with this work. In cross-examination, she said that in being required to put additional pressure on during a massage, she suffered stiffness in her low back as a result of prolonged standing (T50, L4–8). In her affidavit, she said:
“The car drive to work was one hour 45 minutes each way, I found that the drive was causing my back and neck pain to flare up and I also had difficulty concentrating during the drive.”
She said at the end of the working day she was “utterly exhausted and in a lot of pain”. She said that in September 2012, her general practitioner advised her to cease work.
18 A report from Euroa Medical Family Practice, however, put the date of cessation of work as November 2012. In October 2012, Ms Asquith took some weeks’ holiday in western Tasmania and Hobart, sailing from Melbourne to Devonport on the Spirit of Tasmania. In the course of 2012, she was in a relationship with a Mr Brett Lemin. She said he encouraged her to engage in a range of physical activities, including mountain bike riding and skiing, amongst other things, to counteract depression. In July 2012, Mr Lemin was working in the snowfields and had accommodation provided with his job. She stayed in that accommodation with him. In due course, that relationship also came to an end. She told me that there was a longstanding conflict with Mr Lemin which was never resolved, but she did not describe the nature of that conflict. In January 2013, she recommenced physiotherapy with Ms Libby MacWhirter. She also began studying nutrition, health and food science at Victoria University of Technology. After five weeks of study in the first semester, she deferred that course. She said that this course was her fourth preference in applying for admission to tertiary education as a mature aged student. Her first preference had been a course which would train her to be a paramedic, but she succeeded only as to her fourth option.
19 In March 2013, Ms Asquith commenced work as an ambulance community officer based at Euroa, initially working one day a month and, from May 2013, working two days per week “on call”. She was cleared for this work by the general practitioner, though with a restriction on lifting. She is confined to part-time work in this role because of a shortage of available shifts on her roster. She has not been put to the test of working full-time. This year, she commenced a pathology course which would train her to collect pathological specimens, including blood, for analysis and testing. This study was also designed for the achievement of her ultimate objective to work more fully in the medical field.
20 She said that an ambulance community officer was a helper to the paramedics in the ambulance crew. She customarily worked with one other officer who was himself or herself a paramedic. The decisions and the lead taken are by the paramedics. She said the relationship between her and the paramedic or paramedics in the relevant ambulance crew was akin to the relationship between a medical practitioner and a nurse.
21 Ms Asquith had moved, in March 2012, from Euroa to Bundoora. In December 2012 – that is, after finishing work at the spa – she returned to live with her parents in Euroa. She said:
“This was mainly because my housemates had a full and active social life and I did not. My lack of income was also a problem. They were also very messy and this meant more cleaning which was problematic for me.”
In early 2013, she took up residence somewhere in the Melbourne metropolitan area with another group of friends in a group household. Speaking of her work as an ambulance community officer, she said:
“Among other things, I find sitting in the ambulance for long periods very taxing, and the job still needs me to crouch over patients who are on the ground and also from time to time to roll them. I can control my mental symptoms enough to let me carry out my duties but it is not easy. This experience makes me think that I will not be able to sustain work as a paramedic or in similar ‘quasi medical’ fields like midwifery (or even beauty therapy) because of the need for bending, holding sustained postures and keeping mental focus.”
22 In an affidavit sworn a few weeks before trial on 10 June 2014, Ms Asquith says, “I’ve been very inactive since swearing my last affidavit. I consciously evaluate physical activities before attempting them and I am far more cautious”. She said that she had attempted mountain biking “a few times” but limited herself in that respect. In May 2012 she said, “I actually fell off my mountain bike at Mount Beauty and although I was able to laugh it off at the time, I knew I had been lucky to escape a severe worsening of my back pain”. She said for this reason she did not follow up her interest in motor cycling. She said she limited her interest in dog sledding to “a largely social involvement in the Northern Victoria Sled Dog Club”. I was not entirely clear as to her evidence about her ownership of pet dogs. She said that she has two huskies, the second of which was introduced into her household whilst she was with a former partner, Mali. The second dog was acquired on the strict understanding that it would be exercised and cared for by Mali, but when they went their separate ways, the dog stayed with Ms Asquith. She also referred to owning a Staffordshire Terrier.
23 In her first affidavit she referred to an interest in jet skiing. In the 2014 affidavit she said:
“As discussed in my earlier affidavit, I have continued to attempt jet skiing in the warmer months, but I make sure it is only for limited periods. I was fortunate that I could use my former partner’s jet ski [viz Brett Lemin’s] which was configured as a standing rather than a seated ski because this puts much less stress on my spine.”
24 She said that she continues to find long drives uncomfortable. She stated:
“Although I can still go out to venues and social events, I find them draining because of the need to focus my energies on being sociable. In general, things that take me out of my comfort zone tend to agitate and depress me.”
25 She said that following her treatment by Ms MacWhirter, she was able to establish a regime of self-exercise by the second half of 2013 which allowed her to dispense with regular physiotherapy. She still has regular consultations with psychologist, Mr Craig Wilson.
26 In cross-examination, she accepted as correct the history that is recorded by consultant psychiatrist Dr Entwisle (who examined her for medico-legal purposes on behalf of the Transport Accident Commission) that, whilst she uses Endone occasionally, her usual analgesic for relief for back and neck pain is Panadol Osteo, and over-the-counter non-prescription analgesic. She uses this “sparingly”.
27 Ms Asquith’s most recent personal relationship is with Eric, who works at Lindsay Park, the horse training complex operated by the celebrated horse trainer David Hayes. This has led to her involvement with what might be described as a “horsey” crowd and some involvement in horse riding. One of her woman friends, Morgan, takes her for regular horse riding excursions to a property owned by her de facto partner’s parents at Mansfield.
28 Ms Asquith’s general practitioner continues to provide her with prescriptions for Effexor, an anti-depressant.
Legal considerations
29 The Transport Accident Act 1986 establishes a regime whereby there is a general compensation scheme for persons injured in transport accidents in Victoria without proof of fault. Correspondingly, however, the Act restricts the entitlement which an injured person might otherwise have to claim damages for negligence. Section 93(1) excludes damages claims except in accordance with the provisions of the section. Sub-section (2) allows a person injured in a transport accident to recover damages in respect of the injury if the injury is “a serious injury”. Sub-section (17) defines serious injury as follows:
“"serious injury" means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
30 Sub-section (17A) establishes certain special provisions relative to paragraph (c) of the definition which had not come into force at the time of Ms Asquith’s accident and are therefore irrelevant.
31 Sub-section (3) provides that an injury is to be deemed a serious injury if, in accordance with the permanent impairment provisions of the Act, ss46A, 47(7) or 47(7A), the degree is determined to be 30 per cent or more. Where no such determination of impairment of 30 per cent or less has been made, the damages claim may only be brought if a court gives leave in accordance with ss(4). This requires the application of the definition of “serious injury” quoted above. This is commonly referred to as the “narrative” test.
32 In the present proceeding, the plaintiff relies solely on paragraph (a) of the definition. The classic exposition of the operation of the definition of “serious injury” which applies in this case is to be found in the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak [1992] 2 VR 129. Their Honours said:
“ … we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(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" Beyond such guidance it is, we think, not possible to go.” ([1992] 2 VR 129, 140)
33 Complications arise where, in the context of an application for leave based on paragraph (a) of the definition, elements of psychological or psychiatric impairment are in play. In Richards v Wylie (2000) 1 VR 79 the plaintiff had suffered whiplash injuries with pain and stiffness in the neck, shoulders and arms and certain other physical symptoms. The medical evidence indicated that these symptoms could not be organically accounted for and that they seemed to have been produced by psychological factors. The trial judge accepted that the plaintiff had suffered a serious injury for the purposes of paragraph (a) of the definition based upon the physical symptoms despite the evidence that they were non-organically generated. The Court of Appeal, Winneke P, Buchanan and Chernov JJA set aside the grant of leave. Chernov JA said that:
“It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment.” ((2000) 1 VR 79, 90)
34 His Honour continued, stating that, where the dominant cause was psychological, then the application for leave should be determined under paragraph (c) of the definition. In broad terms, therefore, paragraph (a) is concerned with the consequences of organic injury and paragraph (c) is concerned with injuries which are psychologically or psychiatrically driven. However, in considering the application of the definition in paragraph (a) to physical injury, one considers not only the organic consequences but, in His Honour’s words, “any mental or behavioural disturbances flowing from the physical injury, such as “functional overlay”.
35 Here, the plaintiff relies solely on the paragraph (a) definition and the success of her application must be judged by reference to the organic injuries and consequences, primarily, but also by reference to mental or behavioural disturbances flowing from the physical injury. It seems in this respect to be almost a mirror image of the operation of s46B of the Act with respect to the assessment of permanent impairment which requires the assessor to exclude from consideration psychiatric and psychological impairment which is secondary to physical injury. The effect, then, is that for impairment assessment purposes, only so-called primary psychiatric impairment may be considered. In practical terms, this means Post-Traumatic Stress Disorder or some cognate condition such as an Adjustment Disorder flowing from “the shock of the moment”. It would seem from the analysis of the Court of Appeal in Richards v Wylie that for s93 purposes, “primary” psychological factors are to be excluded from an analysis of whether an injury is serious by reference to paragraph (a) of the definition.
Expert opinion
36 Mr Michael Epstein, a consultant psychologist, assessed Ms Asquith for medico-legal purposes on 25 June 2012. He provided an impairment assessment in accordance with s46A of the Transport Accident Act. He said that she was injured in a transport accident which she described as “frightening”. He noted that following the accident, Ms Asquith was “fearful she may become quadriplegic”. He said that she has had some symptoms of Post-Traumatic Stress Disorder to a mild degree “but has been able to resume driving”. He said
“The combination of the physical and psychological effects of the accident has led on to a chronic Adjustment Disorder with depressed mood. She also had the recent breakdown of a relationship and continues to be depressed about that also”.
He assessed her permanent psychiatric impairment at 10 per cent, putting the “primary” element at five per cent. He says her condition was stable and her prognosis for improvement was limited.
37 Dr Epstein recorded that “her brother has had counselling for depression and attempted suicide in mid-2011 and has problems with alcohol”. In her own evidence, Ms Asquith denied any suicide attempt by her brother but said that he had engaged in self-harming behaviour. As at the date of the assessment, Dr Epstein recorded:
“She said she feels flat most of the time. Her self-esteem and self-confidence has dropped. She feels bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated, unmotivated and has problems with memory and concentration. She is less sociable and has less interested (sic) in her appearance. She has no libido and no sexual activity.”
38 Dr Epstein provided a supplementary report to Ms Asquith’s solicitors dated 22 August 2012. This supplementary report followed his review of a neuropsychological report prepared by Ms Sue Sloan. Dr Epstein noted that Ms Sloan had excluded any traumatic brain injury from the motor accident. The assessment found some compromise to cognitive functioning. Dr Epstein noted:
“It was thought that if her psychological symptoms improved her cognitive functioning would also improve. Her work capacity had been limited both physically and by her anxiety and depression. It was thought she would be able to return to some form of employment in the future and this would benefit her mood. It was thought she would probably only be able to work part-time at first.”
39 Dr Epstein said that this information flowing from Ms Sloan’s assessment was “consistent with the information obtained by me and her report does not lead me to altering my opinion”.
40 Around the same time, Ms Asquith was assessed by consultant orthopaedic surgeon, Mr Kevin King, who reported by letter dated 26 June 2011. Mr King noted the injury and the detection on CAT scan and MRI scan of an anterior wedge fracture at T1 with a 20 per cent loss of anterior height and an anterior wedge fracture of L1 with a loss of 20 per cent of anterior height. He said there was “no subluxation or dislocation and there were no neurological symptoms or signs”. He noted complaints of persistent neck pain and stiffness radiating to the back of the occiput with associated general headache and constant nagging thoraco lumbar back pain of moderate severity, “aggravated by exertion and fatigue and as bad as the neck pain”. He also noted occasional ache in “both buttocks”. Mr King found the wedge fractures to be “both stable and there was no cord damage or significant radiculopathy produced, although there would inevitably have been widespread damage to the cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels at the time of the accident itself”. He found a mild but definite limitation of neck movements and some spasm and discomfort in the neck. As to the thoracolumbar spine, he found no localised deformity but a mild to moderate limitation of low back movements with some spasm and discomfort. He said, “Approximately two-thirds of the normal range of all movements are present”. Mr King said that there had been a partial recovery and that Ms Asquith’s condition was stable. For impairment purposes he found a 10 per cent whole person impairment consisting of a 5 per cent impairment of the neck and a 5 per cent impairment of the low back.
41 Ms MacWhirter, who, it will be recalled, provided physiotherapy to Ms Asquith in the course of 2013, provided reports dated 2 September 2013 addressed to Ms Asquith’s solicitors and the Transport Accident Commission. She noted physiotherapy sessions with Ms Asquith commencing 3 January 2013 with the last on 26 July 2013. She said:
“The complaints were always of pain, headaches, loss of movement especially in the cervical, thoracic and lumbar spines, and then ability to sustain a fixed posture, loss of core strength, TMJ problems, increased lumbar lordosis, hip pain. Treatment consisted of passive mobilising of the spinal joints, prescription of an active exercise regime and a gym program plus posture re-education.”
42 She also recorded a complaint from Ms Asquith that she was unable to continue her university course (presumably the nutrition course at Victoria University of Technology) “due to the poor seating in the lecture theatre, the lack of opportunity to change posture frequently and the long drive to the campus”.
43 Professor Stephen Davis, neurologist, also provided a medico-legal report, dated 25 June 2012. The professor noted a complaint of “constant cervical stiffness” and “particular pain in the upper thoracic and lumbar regions of the fracture sites”, also that she told him that lifting worsens her neck and shoulder pains. He said she had –
“… chronic spinal pain which is described as throbbing, worse with prolonged sitting or standing and this makes it particularly difficult when sitting in a car. She is woken at night several times due to pain and the aching seems to be worse in cold weather and when she wakes first thing in the morning.”
44 He noted:
“She is able to do housework but all of her activities have been adversely affected by the chronic pain in her back and have restricted her return to work and enjoyment of her previous recreational pursuits. She is not currently on any medication. In addition to the pain, she still has some depressive symptoms.”
45 Professor Davis put her permanent impairment relative to the various spinal and neck injuries at 19 per cent of the whole person. He said the impairment had stabilised.
46 Dr Timothy J Entwisle assessed Ms Asquith for medico-legal purposes at the request of the Transport Accident Commission on 29 April 2014. He reported to the Commission in a letter dated 13 May 2014. He noted that Ms Asquith was determined to push forward with her career in the ambulance service. She hoped to undertake paramedic training in 2015. He said she –
“ … described a somewhat troubled childhood. Whilst she was physically active and outgoing, she felt that her grandparents, in particular treated her differently, so she cut them out at the age of 18. She is someone of black and white views with obsessional tendencies and an inclination to ruminate negatively. Her parents were never strict and raised her as a boy. She enjoyed hunting and fishing but as a teenager, her parents were over controlling in regard to the presence of boys in her life. She never felt accepted and did not think she belonged. She did not think she fitted in.
There was a sense of being on the outer. Her basic needs were cared for, however. She believed that the accident ‘shouldn’t have happened’. She was very moody for an extended period. She was referred to a psychologist because she had bottled this all up. She made some progress with that treatment. Initially there were some mild traumatising features but mostly her difficulties lie in the area of acceptance of her injuries and moving forward.”
47 After the accident she was “moody, irritable and withdrawn”. He said:
“She lost a lot of friends because she refused to attend their 21st birthday parties and graduations due to her tendency to unfavourably compare herself with their situations.”
48 He said:
“She procrastinates, tended not to make phone calls initially but that is not too bad now. There were no panic attacks. Whilst initially nervous whilst driving as a passenger, those tendencies have ceased.”
49 He noted Ms Asquith attends “Dr Wilson, psychiatrist, [in fact, Dr Wilson is a psychologist] who is encouraging her to be more actively involved in her daily life with the establishment of a routine at a psychological, social and physical level. She has benefitted from management with psychotropic medication (Effexor 75kgs (sic)). There is a family history of psychiatric illness”.
50 Dr Entwisle said that Ms Asquith presented with “an Adjustment Disorder with depressed mood and an Obsessional Personality Disorder”. He observed, “Her current psychological symptoms occur as a consequence of or secondary to her physical injury from the transport accident”.
51 Mr Michael J Dooley, orthopaedic surgeon, assessed Ms Asquith for medico-legal purposes on 26 May 2014 at the request of the Commission. He reported to the Commission in a letter of 12 June 2014. He referred to her history of pain and restrictions and noted:
“About a year ago she returned to bike riding. She said she can now ride 15km on a mountain bike and 28km on a road bike. These distances are much less than she used to undertake. She does her own exercises.”
52 He said:
“Currently she is studying a university course in nutrition. She would like to do paramedical science studies next year.”
53 In contrast to the absence of any neurological signs upon assessment by Mr King and Professor Davis, Mr Dooley noted the absence of a left knee reflex. He noted the radiological findings and said that he thought those injuries as detected were consistent with Ms Asquith sustaining the injuries in the accident. He observed, as had Mr King:
“ In association with the vertebral body fractures, there will have been some associated musculoligamentous damage. Recovery from these sorts of injuries takes in the order of three to six months. Following this period of time, most patients would note some ongoing intermittent spinal pain. Prolonged sitting and standing could aggravate lumbar spine symptoms. A lot of activity or a lot of activity at an above head level could aggravate cervicothoracic symptoms. In association with the latter symptoms, intermittent headache could be noted.
Patients often find as they improve physiological fitness, ie aerobic capacity, the tendency towards chronic musculoskeletal pain improves. Ms Asquith has found benefit from returning to bike riding and undertakes the exercises that she has received on instruction from her physiotherapist. Exercise can also be beneficial in terms of treating depression. I agree with Ms Asquith that it is important for her to try to minimise the strength of analgesic medication which she takes. I believe that her current work, study and proposed study are appropriate for her.”
54 He said her left knee reflex was definitely reduced. He could “not identify any other neurology”. He thought the left knee reflex was an after effect of wearing the back brace for a long period of time “where irritation can occur to a cutaneous nerve as it exits from the pelvis”. He said he did not believe that Ms Asquith would be able to return to all of her pre-injury “active-impact leisure pursuits” because she would continue to note “intermittent spinal pain”. She would have difficulty with heavy physical activity or with work that involved a lot of bending, lifting and twisting.
55 Mr Dooley provided a supplementary report, dated 23 June 2014, which responded to communications from the Commission, including a number of photographs taken from the social networking site Facebook and a 26 second video showing Ms Asquith bareback horse riding. The supplementary report, a letter dated 23 June 2014, refers to bungee jumping though none of the material produced at trial depicted such a thing. It remains a matter of speculation as to whether Mr Dooley was simply mistaken as to what he saw or that there was further material dealing with bungee jumping which was not produced to me. Mr Dooley said:
“Accepting that the photos shown are valid and were taken after Ms Asquith’s recovery from her injuries, they would indicate that she is carrying out a greater range of activity than suggested when seeing her in June 2014. I do not mean Ms Asquith does not experience intermittent spinal pain as outlined above, but do suggest that she is far more confident in her ability to engage in a wide range of activities than she suggested on review in June 2014.”
56 He said that engagement in the sort of activities depicted may indicate that patients in this situation “are not having significant spinal pain and they do not have significant concerns about aggravating their injury or sustained further injury to the spine”.
Conclusions
57 Like most contested serious injury matters, this proceeding is problematic and difficult to determine.
58 As Ashley JA recently noted in Phelan v Transport Accident Commission [2013] VSCA 306 [3], the burden lies on the plaintiff to satisfy the statutory test and the matter must be assessed as at the date of trial. The most obvious source of information as to a plaintiff’s pain and restrictions is the plaintiff himself or herself. Difficulties arise where it appears that a plaintiff is less than candid and forthcoming with medical assessors and in evidence before the court. Regrettably this situation obtains here.
59 Early in her cross-examination by Mr Jens, being asked about her connection with Lindsay Park, where it will be recalled her present partner, Eric, resides, she was asked, “When was the last time you were on a horse?” (T17, L30) Her reply was “Melbourne Cup 2013” (L30-31).
60 Amongst the material relied on by the Commission was a short video taken from some social media website showing Ms Asquith bareback riding with one Dane Stevens. This was exchanged during the “protocols” process with the Transport Accident Commission. The event occurred on Melbourne Cup Day 2013 and could therefore have been proven had Ms Asquith not admitted it in cross-examination. Later, Mr Jens was cross-examining Ms Asquith as to the statements in her affidavit of June 2014 where she said, “I have begun to take an increased interest in horse riding as this tends to be more sedate and poses less of a risk of worsening my injuries”. He suggested to her that she had been engaged in horse riding. He pressed her on the point, saying, “No, not lessons, riding. Where do you ride?” She replied, “I think I’ve sat a handful of times, but to ride I haven’t” (T27, L29). Pressed about her increased interest in horse riding, she said, “My interest is more on the racing side of things” (T28, L6-7). Mr Jens asked, “So does that mean watching other people ride?” (T28, L9) She replied, “Yes”.
61 Mr Jens continued to press about the interest in horse riding. She said, “Yes, I have, developed an interest in horse riding, but not to ride” (T29, L30). In answer to a question from me, “Can you explain to us how that increased interest has in practical and specific terms been manifested?” (T30, L7-8) She said, “I suppose it comes to the large group of friends that I now have after my accident being jockeys themselves and track riders” (T30, L8-11). I said, “So it entails, if you like, keeping company with a horsey crowd, have I got that right?” (T30, L12-13) She replied, “Yes”.
62 The effect of this evidence was that she has not mounted a horse since Melbourne Cup Day 2013 and had sat on a horse a few times but not engaged in riding. Her interest in riding, is it would seem, solely a vicarious one in keeping company with jockeys and trainers from Lindsay Park.
63 Later, at T39 and following, it emerged in further cross-examination that Ms Asquith goes for regular riding excursions at the property owned by her friend, Morgan Wood’s partner’s parents at Mansfield. Mr Jens, on behalf of the Commission said, “But indeed what I suggest to you is, that you go horse riding certainly over the summer months or more recently actually, about once a fortnight?” (T30, L7-9) She agreed that she went riding at the Mansfield property not quite once a fortnight. Her most previous visit and ride there was less than a fortnight before the trial. I think it likely that she made these concessions because of the specific nature of the question asked by Mr Jens which created the impression that he had some means of proof if she did not make the admission.
64 Mr Jens took Ms Asquith at length to material from Facebook which depicted her in a number of outdoor activities and social activities. Ms Forbes, in her closing submissions, correctly observed that these are just “snapshots” showing particular events but capable of creating a misleading impression as to the totality of Ms Asquith’s life. Again, Ms Asquith herself said that many of these activities were engaged in by her at the specific urging of her former partner, Mr Brett Lemin, who told her that it would be a good antidote to the depression which she was feeling. Mr Lemin’s views on this, if accurately portrayed, appear in accordance with those of the medical profession. The total effect of the material, put in cross-examination and conceded by Ms Asquith, demonstrates a much less introspective and restricted life than the one portrayed by Ms Asquith in her affidavits and in the histories which she gave to various examiners. Again, it will be recalled that, whilst she accepted that she had, after the accident, engaged in jet skiing, she said in her affidavit that this could be done only because Mr Lemin owned a jet ski which she could operate from a standing position. I must say this evidence was somewhat difficult to credit given that, upon the video evidence and her own admission, she was able to ride a horse bareback. Mr Jens put it to her (T85) that in addition to riding Mr Lemin’s jet ski in a standing position, which was depicted on Facebook, she could also ride quite satisfactorily his sister’s jet ski which was configured to be operated seated. She replied, “Possibly” (T85, L24).
65 I accept the opinion of Mr Dooley which is consistent with the opinions expressed some two years earlier by Mr King and Professor Davis that, as a result of the crush fractures and surrounding musculoligamentous injuries, Ms Asquith will continue to suffer pain and restrictions both in the neck and low back which will restrict her from overhead work, prolonged bending and stooping and maintaining positions for a prolonged period either seated or standing. These restrictions mean that she will not be able to engage in outdoor recreations with the same freedom which she could before the accident, nevertheless the totality of the evidence shows that she has retained a very considerable ability to engage in outdoor occupations such as horse riding, jet skiing and mountain bike riding. As Tennyson put it, “Tho’ much is taken much abides”.
66 In opening, Ms Forbes referred to Ms Asquith as engaging in extreme sports and being an elite athlete before the accident. On analysis this is scarcely true – she undertook one skydive on her 18th birthday and she played soccer at school but not thereafter. Her affidavit referred to her rock climbing but in cross-examination at T12 she referred to one incident of rock climbing only, at an indoor centre near Canberra.
67 On the employment front, these pains and restrictions represent something of a curb on Ms Asquith’s ambitions for a career as a paramedic. I accept that they were causative of her ceasing work as a beauty therapist at the Daylesford Day Spa. Nevertheless, she said that her work there was solely for the purpose of setting her up to pursue a career as a paramedic. Therefore, nothing in a long-term sense has been lost. She is working in an allied field to the paramedical field as an Ambulance Community Officer. She is restricted but able to carry out duties in that role. The restrictions on her hours are dictated now solely by the availability of work. She has not been able to attain the status of paramedic but her difficulties in this respect seemed to have derived from not making the quota for the course of study, not as a result of any consequence of the injury. Again, whilst her capacity to engage freely in the employment which she aspires to has been curbed, it remains substantially intact.
68 On the basis of these considerations, both as to her career and her physical ability to engage in outdoor recreation, it is less than obvious that the consequences of Ms Asquith’s injuries meet the benchmark required for success of being more than merely marked but very considerable, when considered in comparison to the range of injuries and consequences sustained by other plaintiffs in this jurisdiction. If this were where matters ended, the outcome would be clear. Leave should be refused.
69 The complicating factor is the significance of what Chernov JA, as he then was, described in Richards v Wylie as the “behavioural disturbances” resulting from the injuries which, in accordance with the Court of Appeal’s decision in Richards v Wylie, are proper for consideration in the context of an application such as this, based solely on paragraph (a) of the definition of serious injury. Upon close analysis, many of the difficulties which Ms Asquith has said she has had to struggle against, are not the direct consequences of pain and restrictions in her spine. When she was asked directly by her counsel, Ms Forbes, “… my question is what is it that makes it hard for you [to walk and care for the dogs]?” Ms Asquith’s reply was, “Depression” (T129, L29-30). I have already referred to the fact that Mr Lemin urged her to engage in many of the outdoor activities to counteract her depression.
70 Dr Entwisle took a history of a difficult family background. There is, however, no evidence of Ms Asquith having been treated for depression before the accident. She is now on continuing anti-depressant medication. Dr Entwisle diagnosed an obsessive personality disorder, which by its nature would seem to be constitutional. Nevertheless, he did accept a causal link between the psychological disorders which she diagnosed, namely depression and obsessive personality disorder, and the transport accident.
71 Ultimately, and with some hesitation, I conclude that these considerations would not lead to the success of the application. First, at least some of the psychological disturbances described would not properly be taken into account in accordance with the Richards v Wylie principles. Dr Epstein diagnosed a Post-Traumatic Stress Disorder which by its nature derives from what he described as the “frightening” aspect of the accident. It is not secondary to the injury. It must be conceded however, that with the passage of time these matters would be of diminishing significance in Ms Asquith’s total psychological presentation. I would, myself, have been inclined to say that many of her problems were by their nature constitutional; but we must allow for the operation of “the egg shell psyche” principle. If there were constitutional matters in play before the accident and she was asymptomatic, the fact that she was more vulnerable than perhaps another person to depression would not exclude her depression as being properly regarded as a consequence of the accident. This consideration, and the finding as to causation made by Dr Entwisle, means, ultimately, that on the present state of the evidence it would be wrong to discount any of the psychological consequences for lack of causal link to the accident.
72 Ultimately, what leads to the view that this application must fail is that, whilst the depression and allied matters, whatever their severity, in light of the evidence which I have reviewed, have consequences which are significant – perhaps, in terms of the hallowed Humphries v Poljak formulation, marked - but in themselves, and in association with the purely organic factors do not meet the level of `considerable’. This plaintiff remains, it seems, able to pursue her career ambitions and able to live an active, outdoor and social life.
73 The application is dismissed.
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