Bellas v Harkin and Transport Accident Commission
[2009] VCC 638
•9 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-02395
| SARAH BELLAS | Plaintiff |
| v | |
| M Harkin | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 May 2009 |
| DATE OF JUDGMENT: | 9 June 2009 |
| CASE MAY BE CITED AS: | Bellas v Harkin & Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0638 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Transport Accident Act 1986 - application for leave to bring common law proceedings – serious injury – severe long-term mental or severe long-term behavioural disturbance or disorder – meaning of "severe" – Mobilio v Balliotis – leave granted – Transport Accident Act 1986: s.93(4), 93(17)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | J N Zigouras & Co |
| Mr J Goldberg | ||
| For the Defendants | Mr D Myers with | Solicitor to the Transport |
| Mr P Gates | Accident Commission | |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 19 June 2007 by which the plaintiff applies for leave pursuant to s.93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 20 June 2002.
2 The application is brought pursuant to s.93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under sub-s.(4)(d) unless the court is satisfied that the injury is a serious injury.
3 The definition of serious injury relied upon by the plaintiff is under sub-s.(17):
“(c) severe long-term mental or severe long-term behavioural
disturbance or disorder.”
4 The injuries suffered by the plaintiff for which leave is sought are Post- Traumatic Stress Disorder; Major Depressive Disorder and anxiety and depression.
5 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
• The plaintiff gave evidence and was cross-examined • The plaintiff tendered:
ƒ the Plaintiff’s Court Book (“PCB”) pages 1-9H and 15-130: Exhibit A ƒ the medical report of Dr Serry, psychiatrist, dated 31 May 2005:
Exhibit B
• The defendants tendered the following evidence:
ƒ film taken of the plaintiff on 30 October 2007 and 2 November 2000:
Exhibit 1ƒ the Defendants’ Court Book (“DCB”) pages 5-55; 59-60; 86-88; 123-
125; 140; 154; 263; 265; 282; 292; 369; 376; 382; 395; 445; 491;
526 and 538: Exhibit 2.
The Plaintiff's Background and the Transport Accident
6 The plaintiff was born on 26 August 1961. She is now forty-seven years of age. She lives with her partner, Angelo Vyrres. They have two children who are adult and independent.
7 On 20 June 2002, the plaintiff was driving her motor vehicle along Deakin Avenue, Mildura when she was struck from behind by a four-wheel-drive motor vehicle. The plaintiff described the moment of impact as sounding like an explosion, with her motor vehicle being hurled forwards.[1]
[1] PCB 2
The Plaintiff's Injuries and Medical Treatment
8 Initially the plaintiff was not aware of having suffered an injury, but within a short time, and while she was still at the scene of the transport accident, she became aware of pain in her neck, left shoulder and arm, the left side of her chest, left knee and in her spine.
9 The plaintiff contacted her partner, who collected her and took her to their home. The next day, the plaintiff experienced severe pain to those parts of her body where she first experienced pain. She attended the Mildura Base Hospital where she was attended by medical practitioners who referred her to have scans which revealed bruising, but no serious abnormality.
10 The plaintiff then saw Dr Webster, general practitioner, who examined her and found no serious abnormality; however, it appears that because of the plaintiff's complaints of pain to her neck and shooting pains down her left arm, she was referred for a CT scan which showed no acute abnormality. Dr Webster treated the plaintiff by prescribing her analgesics.
11 Dr Webster provided a medical report dated 21 February 2005[2] in which he described the complaints which the plaintiff made to him and the treatment he provided her. He concluded that the plaintiff had suffered soft tissue injuries, and he forecast that she would make a complete recovery.[3]
[2] PCB 90-92
[3] PCB 90-92
12 As part of her treatment, Dr Webster referred the plaintiff to Ms Boulton, physiotherapist, who provided the plaintiff with general physiotherapy treatment and also pelvic floor exercises.[4]
[4] PCB 85-88
13 Dr Webster also referred the plaintiff to Dr Bowditch, gynaecologist. The plaintiff first saw him on 17 September 2002 because of pain in her right iliac fossa and left flank and the development of a weak bladder. Dr Bowditch treated the plaintiff by the prescription of Pro-Banthine, and what he described as a “bladder drill”. The aggregate effect of the use of medication and the bladder drill was to improve the plaintiff's urgency of micturition.
14 Dr Bowditch received correspondence from the plaintiff's solicitors which seemed to irritate him to the point where he described the receipt of correspondence as demands by those solicitors for a report relevant to the plaintiff's injuries. In a report which he provided to the defendants, he referred to the following, which was presumably taken from his clinical notes:
"I noted on the visit on 6/12/04 the following ‘she is still totally obsessed with compensation neurosis and she is trying once again to get me to write to Zigouras and perjure myself into saying that I believed her incontinence was due to the motor accident. Unfortunately I don't believe any such thing and I am not prepared to perjure myself’.”[5]
[5] PCB 12
15 Mr Myers cross-examined the plaintiff on those entries in Dr Bowditch’s report. She denied making any effort to have Dr Bowditch provide an opinion which was untrue.[6]
[6] PCB 9D-9E and Transcript 49-50
16 It is very difficult to understand what Dr Bowditch was getting at. The fact that the plaintiff might have approached him on the issue of whether her bladder incontinence was caused by the transport accident or not is not, of itself, offensive, nor an attempt on her part to convince him that a relationship of causation existed. To describe that as an attempt on her part to have him perjure himself is ridiculous.
17 Despite Dr Bowditch’s stated irritation, he nonetheless referred to the plaintiff becoming stressed and that the added stress would worsen her bladder function and make it more difficult to control.[7]
[7] PCB 12
18 Dr Bowditch referred the plaintiff to Dr Gibson, gynaecologist, who saw the plaintiff for treatment some time in September 2004.
19 Dr Webster referred the plaintiff to Mr Schmidt, orthopaedic surgeon, in relation to the appearance of “a loose body” in her left elbow. Mr Schmidt advised the plaintiff to undertake fitness and strength training.[8]
[8] PCB 91. No evidence was provided from Mr Schmidt
20 Dr Webster also referred the plaintiff to Mr Thien,[9] neurosurgeon, in about March 2004, to investigate the plaintiff’s persisting left arm symptoms. The plaintiff said that Mr Thien advised her to continue with her exercise programme.[10]
[9] No evidence was provided from Mr Thien
[10] PCB 5 and DCB 5-7
21 The plaintiff was referred to Ms Shaul, psychologist, by Dr Webster. The plaintiff first saw her on 14 October 2003 when it became apparent she was suffering from an emerging psychological/psychiatric disorder. The plaintiff saw Ms Shaul on seven occasions. Ms Shaul diagnosed the plaintiff as suffering from an adjustment disorder with anxiety and depressed mood and also a pain disorder and with a general medical condition. She believed the plaintiff would benefit from further psychological treatment which she thought might take years to see her realise any benefit.[11]
[11] PCB 82-83
22 The plaintiff was referred to Dr Papasava, psychologist, by Dr Webster. She first saw him on 20 October 2005. It would appear that he saw the plaintiff on that occasion and again in a two-hour session on 25 November 2005, and not thereafter. He was of the opinion that the plaintiff was suffering from Post- Traumatic Stress Disorder, a Major Depressive Disorder and Panic Disorder and chronic pain. He believed that the plaintiff required psychological treatment.
23 It was at about the time when the plaintiff was referred to Dr Papasava that she commenced seeing Ms Needham, psychologist, on referral by Dr Webster. She first saw her on 11 November 2005. She was of the opinion that the plaintiff was suffering from a Post-Traumatic Stress Disorder.[12]
[12] PCB 74-77
24 Ms Needham continued treating the plaintiff until about January 2007 when she took maternity leave. The plaintiff's treatment was then taken over by Ms French, psychologist, who practised from the same clinic as Ms Needham. The plaintiff first saw Ms French in January 2007. She was of the opinion that the plaintiff no longer met the criteria for a diagnosis of Post-Traumatic Stress Disorder, however, she was of the opinion that she met the criteria for Anxiety Disorder not otherwise specified.[13]
[13] PCB 72
25 Ms French noted that the plaintiff continued to be significantly affected by the transport accident. She also noted that the plaintiff's mood and pain management through exposure to therapy had improved. She noted that the plaintiff continued to demonstrate cognitive dysfunction and that the experience of the transport accident was a source of significant anxiety which she believed would impact on the plaintiff's ability and motivation to fulfil her previous social and occupational functioning.[14]
[14] PCB 73
26 At present the plaintiff continues to see Ms Needham. The plaintiff now sees her about every six weeks.[15] Ms Needham is of the opinion that the plaintiff is suffering from a Major Depressive Disorder and a Pain Disorder associated with a general medical condition.[16] Ms Needham noted that the plaintiff was struggling with limitations on her physical mobility and a capacity to undertake physical tasks; her incontinence; her chronic pain and associated mood disturbance; adjustment in her relationship with her partner and adjustment to changes due to her injuries.[17] She considered that the difficulties experienced by the plaintiff would continue.
[15] Transcript 8 and PCB 16-18
[16] The diagnosis is based upon Ms Needham's reference to the Diagnostic and Statistical Manual of Mental Health Disorders (4th Ed, American Psychiatric Association, Washington: 2000). It is probably the same source of the diagnosis made by Ms French.
[17] PCB 18
27 The plaintiff continues to see Dr Webster. He prescribes her medication. At present the plaintiff is prescribed Panadeine Forte for pain-relief. The plaintiff said she takes one or two each day. She is prescribed Tramadol for pain- relief which she uses when she is in severe pain. The plaintiff said that she uses it about three times per week, usually at night. She is prescribed Endep for relaxation and to assist her to sleep. She takes two at night. She is prescribed Ditropan to assist with bladder control. She said she takes two each day. She is prescribed Duralux for constipation. She said she takes two each day.[18]
[18] Transcript 7-8
The Other Medical Evidence
28 The plaintiff was referred to a number of medical practitioners for the purpose of determining the nature and extent of her physical injuries.
29 Mr Scott, general surgeon, examined the plaintiff on 27 January 2005[19] and 13 September 2007.[20] Mr Shannon, orthopaedic surgeon, examined the plaintiff on 13 June 2008,[21] and Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 13 June 2008.[22] The findings made by each of them were unremarkable, insofar as the plaintiff's complaints of physical injury were concerned.
[19] PCB 57
[20] PCB 51
[21] DCB 14
[22] PCB 24
30 Dr Serry, psychiatrist, examined the plaintiff for the defendants on 31 May 2005.[23] He was of the opinion that the plaintiff was suffering from a pain disorder associated with a general medical condition and psychological factors, and an adjustment disorder with anxiety, depression and features of traumatisation. He considered at that stage the plaintiff's prognosis was somewhat guarded and that a more aggressive management of her pain and psychological state was warranted.
[23] Exhibit B
31 Dr Entwisle, psychiatrist, examined the plaintiff for the defendants on 12 June 2008.[24] He was of the opinion that the plaintiff had suffered a Post-Traumatic Stress Disorder and a pain syndrome. He was also of the opinion that the plaintiff's anxiety was affecting her bladder function and memory; was something which would go against her in terms of pursuing work options; would interfere with her domestic and leisure activities and made her avoid driving, and created nervousness when she did drive and that she required ongoing psychiatric/psychological treatment.[25]
[24] DCB 20
[25] DCB 23
32 Dr Entwisle made one observation about the connection between the plaintiff's incontinence and her anxiety when he was asked to review his opinion in the context of the report of Dr Bowditch. In a supplementary report dated 15 January 2009, he qualified his opinion by saying that the plaintiff's incontinence was due to the litigation process. He added that he expected that the medication which Dr Bowditch prescribed could be expected to assist in bladder control.[26]
[26] DCB 46-47
33 Dr Farnbach, psychiatrist, examined the plaintiff on 5 October 2008. He was of the opinion that she presented with symptoms of depression, lowered mood, poor sleeping, negative thoughts and other typical symptoms, and Post-Traumatic Stress Disorder with intrusive recollections and phobic avoidance. He was of the opinion that she had not had an adequate trial of an anti-depressant therapy which would provide her with modest improvement in her depression and anxiety.[27]
[27] PCB 46-48
34 Dr Temelcos, urological surgeon, examined the plaintiff on 11 February 2009,[28] and Dr White, gynaecologist, examined the plaintiff on 11 February 2009.[29] Both examined the plaintiff for the purposes of expressing an opinion on the relationship between the plaintiff's incontinence and the transport accident. Both concluded that the plaintiff's anxiety was exacerbating her incontinence, but was not the cause of the plaintiff's bladder problems.
[28] PCB 19-20
[29] PCB 21-26
Serious Injury
35 I find that the plaintiff suffered multiple soft tissue injuries in the transport accident which resulted in her suffering an ensuing psychological/psychiatric disorder, and in turn the psychological/psychiatric disorder has exacerbated the plaintiff's incontinence.
36 I find that the psychological/psychiatric disorder, whether it be a Post- Traumatic Stress Disorder or depression or anxiety or a pain disorder, amounts to a mental disturbance or disorder consistent with the definition under section 93(17)(c) of the Act.
37 I also find that the impairment caused by the psychological/psychiatric disorder is long-term.
38 The plaintiff is now forty-seven years of age. She lives in a small hamlet known as Koorlong, which is some distance from Mildura. She lives with her husband who is a retired farmer and who is in receipt of a disability pension.[30]
[30] Transcript 11
39 The plaintiff last worked in about 1998. She performed about 10 hours’ work per week in merchandising. She suffered a knee injury which required surgery in 1998, then again in 2000. It was the knee injury and the necessity for surgery that prevented the plaintiff from resuming any work, and indeed, she was on a disability pension as a consequence of the knee injury and remained on that pension up until the time of the transport accident.[31]
[31] Transcript 8
40 The plaintiff said that if the transport accident had not occurred she intended to return to some work.[32]
[32] Transcript 9-10
41 In her first affidavit sworn 18 May 2007,[33] the plaintiff said that she still experiences a number of consequences of her physical injuries which impair her ability to undertake various postures and to undertake the manual activities involved in domestic tasks, and suffers an inability to engage in social and recreational pursuits.[34]
[33] PCB 1-9
[34] PCB 6-8
42 The plaintiff set out the treatment which she had obtained since the occurrence of the transport accident, a large part of which was for her psychological/psychiatric disorder, from the medical practitioners whose evidence I have summarised above.[35]
[35] PCB 2-6
43 The plaintiff gave a graphic account of what she referred to as her psychological symptoms:
"I also continue to suffer from the following psychological symptoms: panic attacks in response to thoughts and physical and psychological reminders of the incident, especially in the car, previously uncharacteristic feelings of anxiety, sadness, anger, confusion, lack of confidence and self-esteem, and embarrassment; belief in my lack of control, failure, helplessness, hopelessness, uselessness, worthless loss, and isolation, amotivation, intrusive thoughts, avoidance behaviours relating to both people and places, especially in the car, emotionally lability, significant family relationship upheaval including financial hardship making previous family plans and goals impossible and resulting in feelings of guilt and shame."[36]
[36] PCB 8
44 The plaintiff also described suffering interference with her sleep, suffering nightmares and feeling fatigued, which also adds to her anxiety and depression. She described becoming very frustrated by her level of pain; being given to outbursts of anger; finding it difficult to concentrate; being forgetful and experiencing a lowered mood.[37]
[37] PCB 8
45 In her second affidavit sworn 10 December 2008,[38] the plaintiff described similar symptoms. She added that there were particular activities in which she had lost interest and no longer participates in, such as going out to dinner, fishing trips, interstate trips, and she again described her psychological symptoms in graphic detail, adding that she has significant difficulty with comprehension and forgetfulness.
[38] PCB 9A-9H
46 Mr Myers cross-examined the plaintiff on whether she had made any effort to return to work. The plaintiff gave a history to Dr Entwisle that she started work with Avon, but that she considered herself to be unreliable. She was embarrassed by her bladder problems and she needed someone to drive her, presumably to see clients.
47 When the plaintiff was cross-examined, she said that she had not been able to work since the transport accident, however, when the history she gave to Dr Entwisle was put to her, she recalled that she had in fact obtained work with Avon. The job involved contacting clients by telephone and attending on clients.[39] The strong impression I obtained from the plaintiff's evidence was that she was not able to undertake the simple tasks involved in being an Avon lady, which seem to have been limited to obtaining the materials be sold to clients, making telephone appointments and attending upon clients.
[39] Transcript 37-38
48 The other matter of significance on which Mr Myers cross-examined the plaintiff was her capacity to drive a motor vehicle. The plaintiff described a phobia with driving a motor vehicle in her affidavits, and repeated the same in her oral evidence.[40]
[40] Transcript 28-37 and 53
49 Mr Myers showed film taken of the plaintiff on 30 October 2007 and 2 November 2007.[41] The only portion of the films which bore any relevance to the attack made by Mr Myers on the plaintiff's evidence and her credit was at about 13.27 pm on 30 October 2007 when the plaintiff was shown entering the driver’s position of a station wagon at the same time as her husband entered the passenger seat. She then reversed the motor vehicle out of a 90 degree parking bay and drove off.
[41] Exhibit 1
50 The plaintiff said that she had worked with the psychologist who tried to develop more confidence in the plaintiff to drive a motor vehicle. The plaintiff said that she has been able to drive, but rarely.
51 I observed the plaintiff giving her evidence. She appeared to be very nervous and very ill at ease. I gained the impression that she was struggling to maintain composure.
52 A trial judge must be very cautious in giving too much weight to the conduct of witnesses in the witness box because of the potential for that conduct to mislead, however, in the plaintiff's case, I consider that my observations of her were accurate because of a supplementary report provided by Dr Entwisle in which he described her behaviour when he examined her as follows:
"I found her to be a simple natured woman who was frequently flustered
and had problems providing a cogent account."[42][42] DCB 46
53 I prefer the opinions of the psychiatrists to the opinions of the psychologists relevant to a diagnosis of the plaintiff’s psychological/psychiatric disorder. Whilst I do not discount the opinions of the psychologists in that regard, it seems to me that psychiatrists by training and experience have superior training and knowledge in diagnosing and treating psychological/psychiatric conditions.
54 The opinions expressed by Dr Serry, Dr Entwisle and Dr Farnbach differ in the diagnostic terminology they use, but what is very apparent to me is that the diagnosis they each made was based upon what they consider to be a major traumatic incident which gave rise to physical injuries and a probable Post- Traumatic Stress Disorder (in the opinion of Dr Entwisle) and certainly symptoms of anxiety and depression.
55 The measure of the seriousness of the psychological/psychiatric disorder and the consequences of it to the plaintiff can be measured not only by the diagnoses made by Dr Serry, Dr Entwisle and Dr Farnbach, but also by the fact that they agree that the plaintiff requires psychiatric treatment, and in the case of Dr Entwisle and Dr Farnbach, they expressed those opinions relatively recently.
56 Furthermore, the plaintiff has undergone a significant amount of psychological counselling and continues to have that, albeit on a reducing frequency, and she requires significant amounts of medication for her physical injuries and Endep to assist her in obtaining restful sleep.
57 I accept the plaintiff’s evidence, both in her affidavits and in her oral evidence, that she has suffered, and continues to suffer, very significant symptoms directly related to the shock she experienced as a result of the transport accident.
58 I do not accept that the plaintiff’s incontinence was caused by the transport accident; however, I do accept the evidence of Dr Bowditch, Dr Temelcos and Dr Wyatt, that anxiety can exacerbate a pre-existing condition of incontinence. I find that to be the case here.
59 I do not accept the fact that the plaintiff may be able to drive a motor vehicle occasionally or that she was able to obtain a job as an Avon lady, such as it was, are matters of great significance.
60 I do not accept the plaintiff's initial evidence that she was working significant hours in merchandising, but rather about 10 hours per week;[43] however, had it not been for her knee injury, it is probable that she would have continued that work at least consistently with those hours.
[43] Transcript 15
61 In Mobilio v Balliotis,[44] Brooking JA considered that the word “severe” in paragraph (c) is a word stronger than “serious”. Winneke P agreed.[45]
[44] [1998] 3 VR 833, at 846
[45] at 834-835
62 I am obliged to apply the definition of “serious injury” relied upon, but also to have regard to the guidance in Humphries v Poljak[46] that I should make a judgment whether the plaintiff has suffered a serious injury by comparison with other cases in the range of possible impairments or losses.
[46] [1992] 2 VR 129, at 140
63 The conclusion I have reached is that the plaintiff was involved in a transport accident which, to the plaintiff, was a major traumatic incident. Not long after it occurred she began experiencing symptoms of a psychological/psychiatric disorder for which she has obtained a considerable amount of psychological counselling, and according to Dr Entwisle and Dr Farnbach, inadequate psychiatric treatment.
64 The consequences to her are dramatic and impact upon nearly every aspect of her life as she knew it before she suffered the psychological/psychiatric disorder.
65 I have no doubt that the consequences to the plaintiff deserve the description “severe”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of psychological/psychiatric injury.
Conclusion
66 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries she suffered as a result of the transport accident which occurred on 20 June 2002.
67 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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