Banks v TAC
[2012] VCC 1689
•27 June 2012
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-02893
| JENNIFER MARIA BANKS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 12 & 15 June 2012 | |
DATE OF JUDGMENT: | 27 June 2012 | |
CASE MAY BE CITED AS: | Banks v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1689 | |
REASONS FOR JUDGMENT
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Catchwords: Transport accident; claim brought under s93 Transport Accident Act 1986 for serious injury as defined under s93(17) paragraphs (a) and (c); injury to lower back and/or right torso together with psychological trauma as a result of a motor vehicle accident in 2003; principles in Richards v Wylie, Humphreys v Poljak and Petkovski v Galletti applied
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Harrison SC with Mr J. Goldberg | Robinson Gill |
| For the Defendant | Dr R. McNeil with Ms A. Wood | TAC |
HIS HONOUR:
Background
1 Ms Banks was born in Mauritius in 1967. For many years she has lived in Australia.
2 She moved to New Zealand in 2004 and resided there for some years.
3 On 25 September 2003 she was the front seat passenger in a car being driven along the Princes Highway in Pakenham when a semi-trailer collided with her vehicle. She received inpatient treatment at the Dandenong Hospital for four days and was diagnosed with a lacerated right kidney and liver, internal bleeding in her stomach cavity and injury to her sternum.
4 Following discharge, after a few days her haemoglobin levels were found to be low and internal bleeding had continued. She was re-admitted to the Dandenong Hospital where she remained for 10 days. She says:
“I developed pain to the right side of my chest and it has never really gone away. Pain can come on without warning and be excruciating. I had described it sometimes as being like a knife into my ribs. The pain can also extend below my ribs into the side of my abdomen.”
5 She said she also suffered a psychological reaction to the accident.
6 Since that time she said she has continued to suffer symptoms.
7 In December 2004, Mr Christopher Love diagnosed her with a haematoma behind her right kidney and a haematoma on the left lobe of her liver.
8 In February 2004 she and her husband moved to New Zealand where they lived in Palmerston North.
9 Further investigations, including a CT scan and an MRI, disclosed a normal liver with some low density segments. Later that year she had further investigations and in July 2005, Mr Colin Wilson, surgeon, diagnosed her as having: “Referred pain from an intercostal nerve”. He felt “the nerve had become trapped and scar tissue around the rib area”. In 2005 she was found to be suffering a bacterial infection for which she was treated.
10 Over the years that followed she has continued to be troubled by pain using various pain relief medication and suffering significant side effects.
11 In an affidavit sworn a few weeks ago she said:
“I have never been free of pain since the accident. I have pain on the right side of my torso. There is pain around my kidney and liver area and on the right side of my chest, below the breast line. There is pain which goes into the groin region on both sides. I experience cramps in my right foot and calf which cause the toes on my right foot to curve inwards whilst I am asleep.”
12 She said: “I have experienced great difficulty because of my inability to tolerate various medications. Extreme temperatures and cold weather, lack of sleep and stress all exacerbate my pain, making it difficult for me to function during the day.”
13 Ms Banks and her husband returned from New Zealand to live in Melbourne in May 2010 with their two sons. Ms Banks is now under the care of her general practitioner, Dr Melinda Humphries, who conducts her practice at “The Clinic” in Sunshine. She also attends psychologist, Ms Rebecca Kenny “for counselling”. Ms Banks suffers symptoms of depression, anxiety, upset and agitation. She said: “I experience ongoing, fluctuating pain. It really gets me down.”
14 She was referred by Dr Humphries to a pain management clinic at the Western Hospital. There were delays in obtaining a date for a consultation which ultimately occurred in May 2012. According to Ms Banks: “I understand it was difficult for the examiners to reach a firm diagnosis of the causes of the pain I experience”.
15 Ms Banks said that she has, in earlier times, used Endone, Oxycontin and Valium to cope with her pain but now she has to be “very careful with what medication [she] use(s)”. She now takes Codalgin Forte, a few tablets per day and when required during the day, and Temazepan for sleep. She continued:
“The ongoing physical problems I experience and the persisting, fluctuating pain are ready reminders of the accident. Also, I continue to experience troubling, recollections and memories of the collision between our car and the truck. These recurring thoughts are still powerful for [me]. They are intrusive, troubling and upsetting. In particular, I have these thoughts when I am in a car or when I hear about an accident.”
16 Ms Banks has been beset by misfortunes and other aspects of her life. She says that she was abused by her father in childhood. Her father denies this, and most other members of her family support her father in his denials. This has led to her being alienated from her own family. Following the disclosures of the abuse which she made in the early 1990s, she had one or two consultations with a counsellor arranged by “CASA” (Campaign Against Sexual Assault) but has not otherwise been treated. In childhood she had a frightening experience in her father’s car which had stalled in the tracks of a level crossing with a train bearing down.
17 In 1996 she was working as a graphic artist and Cromalin proofer. She said “it was well paid and I enjoyed my work”. For reasons that were not fully explained at the hearing before me, she said she came to be “out of her mind” and stole money from her employer. This led to her dismissal. She has not worked since. Some time after her dismissal she was afflicted with mastitis, a complaint generally afflicting nursing mothers though at this stage she had no children and was not nursing. She received a disability support pension which appears to have continued following the resolution of the mastitis attack in 1997.
18 Ms Banks has known her husband, Mr Kevin Raymond Banks, since 1991. They married in 2001. He suffered a number of physical and psychological disabilities, including a Post-Traumatic Stress Disorder, and has received a disability support pension since 1993. In 2003 the Commonwealth awarded Ms Banks a carer’s pension for her work in caring and supporting her husband. They have two children, sons aged 12 and 11 years. The pregnancies were close and therefore, following the birth of the second son, Ms Banks had to cope with two infants, a disabled husband and her own disabilities. The second pregnancy, in particular, was a stressful one both psychologically and physically.
Plaintiff’s case
19 Ms Banks seeks leave pursuant to s.93(17) of the Transport Accident Act 1986 to bring proceedings to recover damages for her injuries in the transport accident. She says she suffers the following injuries:
· Pain over right lateral chest wall.
· Severe neuropathic pain which is sited over the right hypochondrium, right lateral abdominal wall and right posterior renal angle extending to the leg line.
· Visceral neuropathic pain with right lateralisation.
· Touch allodynia and pinprick hyperpathia.
· Post-traumatic stress disorder including chronic hyper-arousal, panic attacks, traffic phobia, multiple allergic reactions, insomnia, general anxiety and hyper-diligence.
20 She says that for the purposes of “serious injury” in s.93 of the Transport Accident Act, she suffers “a serious impairment or loss of body function, [being]…her lower back and/or right torso”. Alternatively she says she suffers a severe long-term mental or severe long-term behavioural disturbance or disorder.
Legal considerations
21 Section 93 of the Transport Accident Act restricts the ability of a person injured in a transport accident to bring damages proceedings in respect to his or her injuries. Where a putative plaintiff has not obtained from the Transport Accident Commission an assessment of permanent impairment as a result of the accident of 30 per cent or more, then unless the Commission issues a certificate that the injury is serious or a court gives leave to bring the proceedings, the proceedings are barred (sub-s.(4)). Sub-section (6) stipulates that a court must not give leave “unless it is satisfied that the injury is a serious injury”.
22 Serious injury is defined in sub-s.(17) as follows:
“In this section-
pain and suffering damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
pecuniary loss damages means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
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.”
23 It will be recalled that in this proceeding the plaintiff relies on paragraphs (a) and (c) of that definition.
24 The application of this definition is to be guided by a seminal analysis of the majority of the Full Court of the Supreme Court of Victoria in Humphries v Poljak [1992] 2 VR 129, 140. Crockett and Southwell JJ stated:
“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 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’?”
25 In Richards & Anor v Wylie [2000] VSCA 50 the Court of Appeal dealt with the interaction between paragraphs (a) and (c) of the definition of serious injury. Winneke P, having reviewed the joint judgment in Humphries v Poljak, said:
“Thus, the judge, in making the inquiry, must be careful - particularly in cases where mental disturbances or disorders have supervened - not to lose sight of the focus which the definition in sub-paragraph (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of "impairment or loss of a body function". If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the "mental or ... behavioural disturbance or disorder" which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under sub-paragraph (c). Between the two extremes to which I have referred will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell, JJ. pointed out, "anomalous" to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c). Although the textual distinction between sub-paragraphs (a) and (c ) has been touched upon in other decisions since Humphries v. Poljak (see, for example, Turner v. Love and The Transport Accident Commission) their Honours' statement of principle remains as a seminal statement of principle governing the interpretation of the sub-section and ought, in my view, to be followed.” ((2000) 1 VR 79, 87 [16])
26 Buchanan JA delivered a short concurring judgment. Chernov JA also concurred, observing inter alia:
“I also agree that, for the reasons given by the President, the appeal should be allowed.
The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of "serious injury" in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a "serious injury".
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. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the "anomaly" to which their Honours referred in Humphries v. Poljak which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a "serious injury" fell to be determined by the provisions of para.(c) and not para.(a).” ((2000)1 VR 79, 90-21 [28])
27 Where the injury in question operates as an aggravation of a pre-existing condition, that aggravation must in itself meet the criteria of being a serious injury. It is not sufficient that the aggravation, when aggregated with the pre-existing and underlying condition, constitutes a serious injury. Petkovski v Galletti [1994] 1 VR 436, 443.
28 Where an injury or disability could arguably be the result of another accident or some cause other than the subject accident, it is necessary to consider, for the purposes of the application of the definition of serious injury, only that injury or that part of the injury which is caused by the subject accident. The issue of causation is a necessary part of the enquiry of the s.93 stage. It is not something which should simply be deferred until the hearing of the damages action should leave be granted. De Agostino v Leatch & Anor [2011] VSCA 249 [59]-[61] per Tate JA
Expert opinions
29 Dr Greg Denny was the Senior Registrar to Dr J de Groot at the rehabilitation centre conducted by Mid Central Health at Palmerston North in New Zealand. He attended Ms Banks on 1 March 2006 as Senior Registrar of the Rehabilitation Department of the Palmerston North Hospital. He reported on his attendance, treatment and assessment of Ms Banks to the Transport Accident Commission in a letter dated 6 March 2006. He noted that Ms Banks had “suffered a right nephritic haematoma and liver injury”. He noted that an unrelated haemangioma and multiple cysts on her liver were identified in a CT scan of 2004. He said that the peri-nephritic haematoma had “completely resolved”. I observe that it has not been suggested that the haemangioma or the cysts are related to the transport accident. Rather, they are accepted as being unrelated.
30 Dr Denny continued, observing that despite the resolution of the peri-nephritic haematoma, “Mrs Banks continues to experience severe neuropathic pain which is sited over the right hypochondrium, right lateral abdominal wall and right posterior renal angle extending to the mid line”. He said that this was experienced as “sharp lancinating pain continuously”. He said there was also: “an epigastric band of pain described as being similar to the abdomen being inflated with a bicycle tyre with burning dysaesthesia from the left sub costal area towards the right”. He said these things had had a profound effect on Mrs Banks’ ability to undertake anything more than light physical activities and an impact on her relationship with her husband and children: “as she is unable to allow any touch or pressure over this part of her body. As a consequence, Mrs Banks has not been able to return to work and she continues to seek medical therapy for this pain”.
31 He recited various investigations that had been carried out. One of the diagnoses that was explored was “traumatic neuroma”. Dr Denny referred to certain blocks to recovery, or barriers to recovery. He said:
“In this I would list financial stressors, an adjustment disability in respect to her persistent neurogenic pain, and her experience of significant side effects from medication utilised for her neurogenic pain in the past. The development of centrally mediated neurogenic pain would also constitute the most significant barrier to Mrs Banks recovering from the effects of the motor vehicle accident and reattaining her normal adult role and her vocational duties as she wishes to perform.”
32 He said the persistent pain which Mrs Banks experienced “constitutes a permanent impairment”. Dr Denny wrote a further report dated 3 July 2008 addressed to solicitors acting for Mrs Banks. He noted that Mrs Banks:
“…continues with visceral neuropathic pain with right lateralisation. This is experienced as a sharp, lancinating, continuous pain with a band of epigastric pain over the high abdomen and burning from the left ribs on the base of the ribs on the left towards the right.”
33 He noted clinical examination “has revealed touched allodynia and pinprick hyperpathia over these areas”. Dr Denny felt unable to give an accurate indication of what Mrs Bank’s long-term prognosis would be. He observed:
“It is certainly clinical experience that the visceral pain syndromes are some of the hardest to treat, particularly once the person has developed an element of central sensitisation, which is often accompanied with extreme reactions to analgesics and agents for neurogenic pain.”
34 He said, nevertheless, that Mrs Banks “impresses me in [that] she continues to maintain a positive attitude towards her condition and its management”.
35 Professor Ian Brand, Administrator of the Western Hospital, reported to Ms Banks’ solicitors by letter dated 12 November 2011 on Ms Banks’ attendance at Western Health’s Pain Management Clinic on 12 May 2011. He noted at that date Ms Banks’ medications included Endone (one daily), Codalgin Forte (2-4 daily) and Circadin for sleep. He observed:
“Functionally she was independent with PADL’s and her children help with some of the heavy DADL’s such as vacuuming and sweeping and her husband tried to help with the washing when he could. In terms of CADL’s she did most of the shopping and ran errands related to her husband’s medical condition. She did sleep most of the time with medication but she had problems with constipation and wanted to minimise her opioid intake.”
36 According to Professor Brand “she obviously has ongoing neuropathic pain and the doctor felt she should have a thoracic MRI to exclude any spinal cord for her persistent allodynia”.
37 A practitioner at the clinic thought that it would be reasonable to consider a Ketamine infusion to see if that would decrease the allodynia. He also considered the introduction of other medications “but given her past history this would obviously need to be done carefully with the introduction of low doses initially”.
38 Ms Banks attended The Clinic on a further occasion on 21 July 2011 following an MRI. According to the report:
“There was no obvious cause in these investigations for her pain and allodynia. The specialist had a discussion with her about her multi-disciplinary pain program and she was quite interested and she was referred for a multi-disciplinary assessment.”
There was a further attendance in October “with PR bleeding due to haemorrhoids.”
39 According to the Professor, there was no further record of attendance.
40 Dr Humphries, Ms Banks’ treating general practitioner since 19 July 2010, reported to Ms Banks’ solicitors by letter dated 11 April 2011. According to Dr Humphries, the transport accident caused the following injuries:
“(i) ruptured right kidney;
(ii) liver injury;
(iii)subsequent severe blood loss necessitating re-admittance to hospital;
(iv)chronic severe pain in the region of right hypochondrium, lateral right abdominal wall and right posterior renal angle present since that MCA of 23/9/2003;
(v)subsequent post-traumatic stress disorder as a result of the MCA;
(vi)subsequent major depression very likely a result of the MCA and the chronic pain and psychological distress it has caused.”
41 She said those injuries were suffered “both immediately following the MCA and the chronic pain and mental health problems suffered since are all severe”. She said they had disrupted Ms Banks’ normal life, including her ability to work, attend to home duties, care for her children and husband and to engage in normal community social life. She noted that Ms Banks attended a psychologist for counselling to treat depression and received physiotherapy “to help with her regional pain syndrome”. According to the report, Ms Banks’ medication was “in the form of OxyNorm capsules 5mg, one daily…Codalgin for pain and Circadin for sleeping difficulties”. She said:
“her prognosis in relation to her chronic regional pain is poor. Prognosis regarding her depression would be better but hard to gauge as she has only just began (sic) a new series of counselling sessions”.
42 She thought the “chronic pain” was most likely to remain the same and neither deteriorate nor improve. She felt Ms Banks was “incapacitated from her previous employment”. She said Ms Banks was:
“unable to exercise. She finds it difficult to sleep in the same bed with her husband due to her frequent wakings. She finds care for her two sons extremely difficult because of her chronic pain and depression.”
43 In a subsequent letter to the solicitors dated 10 October 2011, Dr Humphries reported on a review conducted by Dr P Courtney of the Pain Clinic at the Sunshine Hospital where a cervical and thoracic MRI was undertaken. The report stated: “That there [was] no obvious cause for her pain and allodynia indicated by these tests.”
44 By letter dated 4 November 2011, surgeon, Ms Merron Pitcher, reported to Dr Humphries on an assessment which she had undertaken of Ms Banks for “acutely painful haemorrhoids”. These haemorrhoids resulted, she said, from “significant constipation secondary to oral Opioids for chronic pain from a car accident 8 years ago”. Ms Pitcher said “I do think she is over the worst of her symptoms and this should largely result [sic scil resolve] over the next couple of weeks. She will certainly be left with some tags but that should be manageable”.
45 Apparently Ms Banks wrote a letter of complaint relative to Ms Pitcher’s attendance and assessment. Ms Pitcher wrote a letter dated 14 November 2011 to the “patient representative” at Western Hospital. The letter stated, inter alia:
“There is some controversy around the management of strangulated haemorrhoids. I am in the group of surgeons who will offer surgical treatment at the time, because that can rapidly improve discomfort and get rid of the haemorrhoids. The downside of early surgery is a higher rate of complications at that time, and it is still several weeks before the person is completely healed. The advocates of conservative surgery would say that this condition does get better by itself over a period of about a month.
It is not unreasonable to treat a patient conservatively, but adequate advice, explanation and pain control is essential.”
46 The same day, Ms Pitcher wrote a letter “to whom it may concern”. She said that Ms Banks had required oral narcotic medication as a result of a motor vehicle accident seven years previously which had led to constipation and straining. She continued:
“The consequence of this has been prolapsing haemorrhoids which occasionally bleed. Unfortunately several weeks ago the haemorrhoids prolapsed and were irreducible and she has developed thrombosed haemorrhoids as a result of that. This is slowly settling with conservative treatment.”
47 Ms Pitcher wrote a further letter of report to the solicitors dated 29 February 2012 covering the same ground as the earlier report. She canvassed the need for a colonoscopy and observed “(f)rom my superficial understanding of her original injury the chronic pain associated with that is stable but her requirements for analgesia means that she has an ongoing issue with constipation and haemorrhoids”.
48 Ms Rebecca Kenny, psychologist, furnished a confidential psychological evaluation of Ms Banks wherein she concluded that Ms Banks suffers Post-Traumatic Stress, depression and anxiety which Ms Kenny attributed to the transport accident. She said Ms Banks’ symptoms included “recurrent vivid dreams and thoughts, heart racing, panic attacks, difficulty sleeping and lack of appetite, intense fear and avoidance of having to catch public transport or be a passenger in a car”.
49 Ms Kenny recommended that Ms Banks have “ongoing psychological counselling to assist in her managing her anxiety, depression and post-traumatic stress, not only through general counselling but also cognitive behavioural therapy”. She reported that Ms Banks was, at the date of the report, receiving weekly counselling and that she was “on medication to assist with her chronic pain and depression”.
50 Ms Kenny diagnosed Post-Traumatic Stress Disorder, generalised anxiety, depression and chronic pain. Ms Kenny advocated continuing counselling including cognitive behaviour therapy and treatment from her general practitioner “assessing pain management and physiotherapy” to mange her chronic pain. As part of her report, Ms Kenny provided the diagnostic criteria for Post-Traumatic Stress Disorder and Generalised Anxiety Disorder in accordance with the American publication DSM-IV.
51 Neurologist, Dr John A Waterston, provided a report and assessment to Mrs Banks’ then solicitors dated 1 September 2008. At that time, Ms Banks was resident in Palmerston North in New Zealand and Dr Waterston carried out his practice at the Cabrini Medical Centre in Malvern, Victoria. He did not, it seems, conduct a face-to-face consultation. Rather, he made his assessment based on a range of reports from New Zealand practitioners.
52 Dr Waterston was critical of a report from Dr Brian Otto dated 16 May 2008 to which I will turn in due course, where Dr Otto found “no clearly identifiable organic cause for her symptom complaints”. According to Dr Waterston, this was “a rather simplistic statement to make about a complex pain syndrome”. He said this syndrome is well-recognised as having an organic base:
“It has had a number of diagnostic terms including ‘reflex sympathetic dystrophy’ and ‘causalgia’. Although the exact aetiology is unknown, it is well-documented to occur after neurological injuries and is characteristically associated with severe allodynia and sensitivity which often spreads out over areas to involve a whole limb or body part, outside dermatomal distributions. It is a recognised diagnosis in the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition.”
53 He said “(t)o say that the problems are primarily psychiatric in nature…is a gross simplification of the complexity of the problem”.
54 In similar vein, Dr Peter Blombery, consultant physician specialising in vascular disease, saw Mrs Banks for examination and assessment on 16 December 2010 at the request of her solicitors. Unfortunately, the print of Dr Blombery’s report in the court book is deficient in that it seems to cut off the last few characters on the right hand side of the text on each page. There was therefore an element of guesswork in constructing the text of the crucial portions of the report.
55 Dr Blombery said that Ms Banks “does not have features of intercostal neuralgia”. After describing her reports of pain he said:
“She has been left with ongoing pain in the right loin area and back. This is not in the distribution of a single nerve root and it is my opinion that this represents a pain syndrome the affected area where there is non-specific sensitisation of pain nerve pathways both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This is an organic disorder of pain pathways.”
56 He said the prognosis for Ms Banks’ recovery was “very poor” and her injury had stabilised.
57 Dr Blombery re-examined Ms Banks on 27 February 2012 and reported to her solicitor by letter dated 15 March 2012. Once again he found ongoing symptoms of a pain syndrome affecting Ms Banks’ right loin, back and groin area. He continued “(s)he has allodynia which is a feature of neuropathic pain. It is my opinion that this is in the nature of a pain syndrome with sensitised pain pathways, as outlined in my previous report.”
58 Mr Nigel Strauss, consultant psychiatrist, provided a report and assessment to Ms Banks’ solicitors in a letter dated 7 December 2010. He diagnosed Ms Banks as suffering a Post-Traumatic Stress Disorder, a Chronic Pain Disorder and a major depression and said that she had psychiatric problems before the accident in 2003. He said “she seems to somatize her problems and it would be hard for a psychologist to help her gain insight into her difficulties”. By “somatise” he meant that she manifested psychiatric distress by the perception of physical pain. He proceeded on the basis that the chronic pain which Ms Banks continued to suffer has no organic cause and is therefore functionally driven.
59 The Transport Accident Commission relied on an assessment by orthopaedic surgeon, Mr Brian K Otto of Auckland, New Zealand. His report is dated 16 May 2008. The precise circumstances in which Ms Banks attended him for assessment were not made it clear. It is reasonable to infer, however, that the assessment was for medico-legal purposes. Mr Otto said “I have, following this examination, satisfied myself that this woman is not at risk with any serious underlying pathology”. He said:
“I am very much aware that pain that is not explained on an organic basis, is often labelled as Chronic Regional Pain Syndrome, and that personalities and psychosocial profiles [of] an individual make that more likely to happen in certain types of patient groups. Mrs Banks was already managing a disabled husband and was on a Care Givers Benefit. She has a profile of personal abuse as a child. She is disassociated from family support, and she did appear to have been isolated in her responsibilities of initially being the breadwinner in the family, to support their two children, up until the time of the accident.”
60 He concluded: “the specific cause i.e. the underlying organic change producing her pain, has not been identified, and…the degree of disability that is being promoted, has no clear-cut ongoing organic identifiable basis.”
61 The Transport Accident Commission had Ms Banks attend consultant psychiatrist, Dr Timothy J Entwisle, on 15 April 2011. He reported and provided an assessment to the Commission in a letter dated 18 April 2011. Dr Entwisle described the history of stressors affecting Mrs Banks, including her childhood abuse. He said the accident had “aggravated Ms Banks’ pre-existing PTSD symptoms in conjunction with the development of a neuropathic pain syndrome, the combination of which has resulted in her depressive symptoms”. He diagnosed her as having Post-Traumatic Stress Disorder. He also referred to her experience of “chronic pain” though it is not clear to me whether he was making a distinct psychiatric diagnosis of some form of pain syndrome separate from the diagnosis of Post-Traumatic Stress Disorder.
62 The Commission also had Ms Banks assessed by Associate Professor Richard Stark, neurologist, who saw her on 10 March 2011 and reported in a letter of that date to the Commission. He agreed with Mr Blombery that there was no convincing features of intercostal neuralgia now. He said “this lady certainly perceives that the pain in her lower back limits her activity and I believe that her regional pain syndrome is a factor in limiting her ability to work”.
63 He found an area of:
“hyperaesthesia over the right lower back extending around the right side of the back to the side of the body and slightly onto the lateral abdomen. This extended from the area supplied by T9 to T12 nerve roots and thus extended much more widely than would be expected from involvement of a single intercostal nerve. In addition, there were some subjective reduction of pinprick and light touch sensation in the right leg below the knee.”
Conclusions
Paragraph (a) – organic injury
64 In accordance with the principles discussed above in considering whether Ms Banks’ presentation meets the requirements of paragraph (a) of the definition of serious injury in s.93, attention must be focused on organic causes. Whilst it may be appropriate, where an organic cause has been identified for the loss of a body function to judge the seriousness of the consequences in light of secondary psychological or psychiatric sequelae, in considering the operation of paragraph (a) the primary cause (or, as Chernov JA put it in Richards v Wylie, the dominant cause) must be organic.
65 In this case, a plethora of investigations have ruled out all the most obvious organic causes for the continuing pain suffered by Ms Banks.
66 The only organic cause which was relied on by Mr Harrison SC and Mr Goldberg for the plaintiff was the one identified by Dr Waterston, which has a number of diagnostic terms, including “reflex sympathetic dystrophy” and “causalgia”. This is also sometimes referred to as a regional pain syndrome or, as Dr Waterston describes it elsewhere in his report, “chronic regional pain syndrome”. According to Mr Harrison and Mr Goldberg, when Associate Professor Stark, neurologist, assessing for the Commission refers to a “regional pain syndrome”, it is this disorder that he is referring to. Dr Blombery’s report, they said, were to like effect.
67 Dr McNeil and Ms Wood on behalf of the Transport Accident Commission, invited me to reject this diagnosis. There was a failure to meet the diagnostic criteria of the relevant syndrome, they said. They conceded that if this syndrome were shown to exist and to have resulted from the transport accident, the application should be successful under paragraph (a). They submitted, however, that the diagnostic criteria of the syndrome or disorder had not been made out and therefore the diagnosis should be rejected.
68 I asked Dr McNeil where in the expert material I could find the diagnostic criteria set forth. He suggested, with apparent seriousness, that I might consult “Wikipedia”. This is, to say the least, unsatisfactory.
69 No doubt, for good reason, to deal with these interlocutory applications speedily and to moderate the cost of the conduct of their hearing, generally the medical practitioners who provide the reports supporting or opposing the contention for the serious injury that exists, do not give evidence from the witness box. This means that it is not possible to seek incidental guidance from practitioners on questions such as the diagnostic criteria for a particular disorder as one might during a full-scale trial.
70 In those circumstances, it is essential that the written reports provide all of the evidence which the court needs to make its determination. In hearing a proceeding such as this, the court is not an expert tribunal. Even expert tribunals not bound by the rules of evidence encounter serious difficulties when they undertake their own investigations or call on the member’s knowledge independently of the evidence that is put before them at hearings. See, for instance, Keller v Drainage Tribunal [1980] VR 449.
71 In these circumstances, I expressed my substantial annoyance at the situation in which I was placed. The parties were, however, agreeable to my seeking enlightenment on the subject of the relevant syndrome or disorder from the Guides to the Evaluation of Permanent Impairment, 4th Edition, as published by the American Medical Association. These Guides are given certain statutory standarding under the Transport Accident Act 1986 and the Accident Compensation Act 1985. They have no operation in determining whether, for the purposes of either Act, a serious injury has occurred in accordance with the so-called “narrative” tests.
72 Insofar as Dr Waterston specifically refers to the Guides as providing recognition for the disorder which he believes Mrs Banks suffers from, the Guides might be regarded as incorporated by reference into his report. In any event, I propose referring to the Guides for the limited purpose described and in the knowledge that they have no direct application under the Transport Accident Act to the enquiry which I am undertaking.
73 The disorder impressed is referred to at page 56, column 2 of the Guides under the heading “Causalgia and Reflex Sympathetic Dystrophy”.
“Causalgia is a term that describes the constant and intense burning pain usually seen with reflex sympathetic dystrophy (RSD) when the causative lesion involves injury to a nerve.
The term ‘major causalgia’ designates the extremely serious form of RSD produced by an injury to a major mixed nerve, usually in the proximal portion of the extremity. The term ‘minor causalgia’ designates a more common form of RSD produced by an injury to the distal part of the extremity involving the purely sensory branch of a nerve.
Other forms of RSD not associated with injury of a peripheral nerve include major traumatic dystrophy, shoulder-hand syndrome, and major traumatic dystrophy. The four cardinal signs and symptoms of RSD are pain, swelling, stiffness and discolouration. The diagnosis of RSD may be supported with a 3-phase nucleotide flow study, cold stress testing, recurrence of pain after previously successful stellate ganglion blocks, in which case Horner’s Syndrome must be present, or Bier blocks.
The impairment secondary to causalgia and RSD is derived as follows…”
74 It will be seen that according to the Guides there are four “cardinal” signs, namely, pain, swelling, stiffness and discolouration. There is ample evidence that Ms Banks suffers pain. Without combing through the copious reports of her pain and disability, I am prepared to proceed on the basis that a criterion of stiffness is also established. I see no evidence of continuing swelling or discolouration. Insofar as Dr Waterston refers to this disorder, the signs and symptoms do not appear after diagnosis based on the material in the AMA Guides. In any event, there is force in the submission made by Dr McNeil and Ms Wood that one should be slow to accept the opinion of Dr Waterston since he did not carry out any physical examination himself. Mrs Banks has been resident in Melbourne now for some years since her return from New Zealand. There is no reason why she could not have been examined by Dr Waterston to enable him to “firm up” his conclusions reached in a somewhat tentative manner based on secondary material.
75 Again, Dr Blombery’s reports are lacking in specificity as to diagnostic signs and symptoms.
76 In these circumstances, I accept the submission made by Dr McNeil and Ms Wood that I should treat the reference in Associate Professor Stark’s report to a regional pain syndrome as referring to a functionally driven one rather than the organic disorder described in the AMA Guides.
77 I should finally record how unsatisfactory I regard this situation as being. The Commission wished the court to reject the diagnosis made by Drs Waterston and Blombery. In those circumstances, it should have obtained a report or supplementary report or reports from its own neurological experts specifically confronting the diagnosis and explaining why the Commission’s experts rejected the diagnosis if, indeed, they did. Again, it is wholly unsatisfactory that I should be left as I have been to speculate on exactly what Associate Professor Stark meant by the pain syndrome to which he referred in his report.
78 The sharp distinction which the Transport Accident Act and the Accident Compensation Act draw between organically driven disorders and functionally driven ones is such that it is incomprehensible to me why a professional defendant like the Transport Accident Commission would not have properly closed off this issue by obtaining supplementary reports.
79 I reject the contention that Ms Banks suffers a serious injury as a result of a transport accident in the terms of paragraph (a) of the definition.
Psychiatric or functional injury – paragraph (c)
80 Dr McNeil and Ms Wood conceded that Ms Banks suffers Post-Traumatic Stress Disorder. They told me that I should accept the evidence of Dr Strauss (who was the plaintiff’s witness) in this respect. Dr Strauss found the pain disorder associated with the medical condition, psychological factors and Post-Traumatic Stress Disorder. He said the Post-Traumatic Stress Disorder was caused or aggravated by the accident in 2003.
81 Dr McNeil and Ms Wood submitted I should find that the plaintiff had serious psychiatric or psychological problems. She was following the termination of her employment in 1996 on a disability support pension.
82 Ms Banks said this was initially because of the mastitis which she suffered. Thereafter she agreed that she was on a sickness benefit of some sort but could not recall what sickness it was.
83 I reminded Ms Banks of an entry in her treating general practitioner’s notes about an invalid pension to be up for review in a few weeks “for depression”. She was inclined to concede on the basis of that note that she was suffering depression at the time in 1999 and this was the ground on which she was receiving the disability support pension.
84 Mr Harrison and Mr Goldberg, however, submitted that I should not treat that as an effective admission. It proceeded, they said, from a false premise, namely, that the doctor’s note indicated that she was, at the time, receiving the disability support pension for depression. The note appeared to suggest that the review (and not the person) “was for depression”. Ultimately it seems to me there is no reason why the disability support pension would be “reviewed”, that is, rendered subject to a possible cancellation because of depression. The more likely meaning is that the pension which was under review was granted because of depression, and I so find.
85 Similarly, Ms Banks was stressed and anxious and resentful by reason of her childhood abuse and her family’s refusal to accept the truth of these matters. She was stressed by the birth of her two children and by the demands of caring for them. It follows, therefore, that to the extent that her psychiatric condition has been worsened, it must be shown that the worsening or the aggravation in itself is sufficient to meet the criteria laid down by paragraph (c) of the definition of serious injury without any regard to the continuing effect of the pre-existing and underlying condition. In the case of mental or long-term behavioural disturbance, it is not sufficient to demonstrate that they are serious. They must be shown to be severe. A significantly more stringent criterion.
86 Mr Banks, under cross-examination, agreed that his wife had serious pre-accident problems psychologically. He said, however, that the disturbance of sleep from which she suffers nightmares did not pre-exist.
87 There is the further very significant disorder which she suffers with haemorrhoids. This is a side effect of the opioid painkillers which she has been taking. It is, perhaps, a perverse medical response to provide opiate or opioid painkillers for pain which, on the findings I have made, is psychologically and functionally driven and not organically driven. Nevertheless, that is what has happened and the haemorrhoids and constipation problems which Ms Banks suffers from are therefore part of the consequences of the psychiatric injury which she suffered in the 2003 accident.
88 I accept the submissions put on behalf of the Commission that even before the accident Ms Banks was suffering from depression and Post-Traumatic Stress Disorder, the latter disorder flowing from her abuse as a child. There is force, however, in the submission made by Mr Harrison and Mr Goldberg on behalf of the plaintiff that consultation of the general practitioner’s notes prior to the accident in 2003 and covering the years previous, whilst it shows a number of significant reports of depression, nevertheless shows a predominance of complaints and attendances about mundane and non-psychiatric issues.
89 Mr Banks said that before the accident his wife was not afflicted with nightmares in the manner that she is now.
90 Dr Strauss, whose evidence I was urged by the Commission to accept, specifically excluded the possibility that Ms Banks was malingering. There was a relatively half-hearted attack on Ms Banks’ credit in closing submissions referring, for instance, to the dishonesty inherently present in the theft which saw her dismissed from her employment in 1996. I accept the assessment of Dr Strauss that the pain and restrictions complained of by Ms Banks, whilst not organically caused, are genuinely felt.
91 The result then seems to be that her Post-Traumatic Stress Disorder is much worse and her life has been crucified by functionally driven pain since the accident. This has even led to significant and most unpleasant side effects to the pain relief medication which she has been taking. Accepting that Ms Banks was in a somewhat parlous situation as to her psychological or psychiatric health before the accident, it has become vastly worse since. This worsening and aggravation, in my view, merits the epithet “severe” and in itself, and without regard to the pre-existing underlying and non-accident related condition, meets the requirements of paragraph (c) of the definition of serious injury.
Disposition
92 Leave to bring a damages claim is refused in so far as it is suggested that the plaintiff has suffered a serious injury in terms of paragraph (a) of the definition of serious injury in s.93(17) of the Transport Accident Act 1986. Leave is granted in so far as it is contended that she suffered a serious injury in terms of paragraph (c) of that definition.
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