Best v Transport Accident Commission
[2020] VCC 1094
•27 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03369
| REBECCA BEST | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2020 | |
DATE OF JUDGMENT: | 27 July 2020 | |
CASE MAY BE CITED AS: | Best v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1094 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – the plaintiff, a pedestrian, struck by a vehicle – reliance upon paragraph (a) of the definition in relation to back injury – reliance upon paragraph (c) in relation to Post-traumatic Stress Disorder and the like – credit of the plaintiff – plaintiff has engaged in a large amount of international travel since the accident – other complicating background matters and credit issues – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab with Mr C Sidebottom | Maurice Blackburn Lawyers |
| For the Defendant | Mr P Elliott QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
(a) General background
1 This matter comes before me by way of an application pursuant to s93(4)(b) of the Transport Accident Act 1986, (hereinafter referred to as “the Act”). On 21 June 2013, the plaintiff was a pedestrian when struck by a vehicle that went through a red light. This shall hereinafter be referred to as “the accident”. There is no dispute concerning the occurrence of the accident or its circumstances. In bringing her application, the plaintiff relies upon paragraph (a) of the definition of “serious injury”. In this regard, the injury relied upon is one to the low back. It shall hereinafter be referred to as “the back injury”. The plaintiff also relies upon paragraph (c) of the definition. The injuries involved are Post-traumatic Stress Disorder, anxiety disorder and/or a chronic pain disorder. This shall hereinafter be referred to as “the mental injury”. In relation to the back injury, it is submitted that depression, anxiety and frustration secondary to the back pain can be taken into account in accordance with what was stated in Richards v Wylie (2000) 1 VR 79.
2 Mr A McNab of Counsel with Mr C Sidebottom of Counsel appeared on behalf of the plaintiff. Mr P Elliott QC with Ms D Manova of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence, including video material, was documentary in nature and was tendered either by consent or without objection. It should be said that the accident occurred whilst the plaintiff was in the course of her employment with Redfig Consulting (hereinafter referred to as “Redfig”). The video material apparently was obtained in relation to the plaintiff’s WorkCover claim against Redfig. I would refer to Transcript (hereinafter referred to as “T”) 3 and following pages. Due to time constraints, it was decided that closing submissions would be written and a timetable was fixed. I thank all counsel involved for their cooperation in this regard and for the very thorough and well researched written submissions that were provided.
(b)The plaintiff’s background, education and employment prior to the accident
3 The plaintiff is aged 28 years, she having been born in February 1992. She received a full secondary education, completing her VCE in 2010. She worked for some months for a publishing company before travelling overseas, where she remained for some six months. She returned to Australia in February 2012. She then commenced employment with Redfig, working as a project coordinator, commencing such work in March 2012 and was still so employed as at the date of the accident.
(c) The plaintiff as a witness
4 A considerable attack was launched upon the credit of the plaintiff. Before turning to her credit generally, I shall deal with the video material. It is to be remembered that these videos were taken in the context of the plaintiff’s claim for statutory benefits pursuant to the Accident Compensation Act 1985, bearing in mind that the accident occurred in the course of the plaintiff’s employment. Of associated relevance is the fact that the plaintiff was examined a number of times at the request of the WorkCover insurer by Dr Natalie Krapivensky, consultant psychiatrist, whose reports were put in the Joint Court Book by the defendant.
5 It is apparent that one occasion on which the plaintiff saw Dr Krapivensky was 31 August 2015. The examination took place at Dr Krapivensky’s rooms in Inkerman Road, North Caulfield. The plaintiff’s activities in that street, both before and after the examination, were the subject of a surveillance video, as was her subsequent conduct on that and the following day. These were shown to the Court. It is apparent from the letters of Dr Krapivensky of 23 November 2015 and 15 December 2015 that she viewed all the relevant video material, including that taken outside her rooms on 31 August 2015. Dr Krapivensky had recorded in the report following that examination that the plaintiff became very distressed fairly on in the interview and cried pretty much throughout. Subsequently, she was sent additional documentation, including three episodes of surveillance video, one of these being on 31 August 2015. According to her, such video showed the plaintiff leaving Dr Krapivensky’s rooms while chatting on a mobile phone and appearing to be in a good mood. Dr Krapivensky pointed out that, not only had the plaintiff been very distressed at the examination, but subsequently a phone call had been received from the plaintiff’s mother, this occurring shortly after the plaintiff left the rooms, to say that the plaintiff was very distressed. In addition, the plaintiff told Dr Krapivensky that her mother was waiting for her outside in order to drive her home.
6 In a further supplementary report of 15 December 2015, Dr Krapivensky stated that she had been provided with information that, after leaving the examination of 31 August 2015 in what appeared to have been a very distressed state, the plaintiff was not only observed smiling while talking on her mobile phone and getting into her car (after telling Dr Krapivensky that her mother was waiting outside as she could not drive herself), but that she then proceeded to drive to Peninsula Hot Springs with a friend whom she picked up on the way. Dr Krapivensky thought that there appeared to be significant inconsistencies in the plaintiff’s presentation, historical account and observed behaviour and such inconsistencies shed a degree of doubt upon her credibility as an historian. She could no longer rely upon the plaintiff’s presentation as being an accurate reflection of her actual mental state. The plaintiff was more active and outgoing than had been reported and had been untruthful on at least one occasion.
7 The video was shown to the plaintiff and the Court during cross-examination. I would refer to T57 and following pages.
8 The plaintiff agreed that the video showed that her mother was not outside waiting to drive her home. She could not recall telling Dr Krapivensky that such was the case. She was not aware as to whether her mother had telephoned Dr Krapivensky’s rooms. It was put to the plaintiff that the video showed her coming out from the medical appointment whilst conversing on her mobile phone. It was put to her that she was smiling whilst so conversing. The plaintiff’s response was that she was in fact crying. She was adamant that she saw herself crying in the video. I would refer to T61. She agreed with many other aspects of the video material, even if she could not recall them.
9 Because of the dispute as to whether the plaintiff was crying or laughing when walking in the street and in her car following the appointment with Dr Krapivensky, relevant parts of the video were shown again. She was again adamant that it showed her crying. I would refer to T69. In re-examination, the plaintiff again stated that the video showed her crying, referring to the fact that she had lifted her hand to her nose and her eyes and that she had her sunglasses on. She had not been wearing her sunglasses when she arrived, but wore them when leaving to cover her tears – see T86.
10 Having viewed the video, I cannot be satisfied that it shows the plaintiff smiling while talking on the mobile phone, whether it be when she was walking on the footpath or seated in her car. Certainly she was wearing sunglasses when leaving the appointment and walking to her car. When she got into the car, she remained seated for quite a little while before driving off. The video of her face at that time consists of what can be seen by way of reflection in the driver’s side wing mirror. It is particularly difficult to see whether she is crying or smiling in the mirror sequence. When she is walking on the footpath, I find it impossible to be satisfied as to whether she is crying or smiling. In short, I am not of the view that this particular sequence of video material damages the plaintiff’s credit. I have spent some time discussing it because of the emphasis placed upon it.
11 The plaintiff readily admitted that the balance of the video material on 31 August 2015 and the following day shows her driving, picking up her then partner, Eleni, and driving further to the Mornington Peninsula. She and her partner went to a coffee shop and to Peninsula Hot Springs. Apparently they stayed the night at the plaintiff’s parents’ holiday house in Portsea. There is further video of them attending at a coffee shop on the following morning. It was put that the plaintiff then drove her partner back to her house in Footscray, before driving to her parents’ home via the city and Tooronga Shopping Centre. The plaintiff could not remember some of these events. Basically, she did not dispute that it was an accurate account of her driving and essentially I accept that what was shown on the video corresponds with the description that was put to the plaintiff. During these sequences, the plaintiff does not show any particular signs of disability, but nor does she engage in any particularly vigorous or demanding activity, other than, potentially, the driving. Neither does she show any signs of distress or restriction. Further, I would add that the amount of driving performed does not sit particularly comfortably with the plaintiff telling Dr Simone Luscombe that she is frightened to drive a motor vehicle – see Dr Luscombe’s report of 19 October 2015.
12 I note that Dr Timothy Entwisle, consultant psychiatrist, who examined the plaintiff at the request of the defendant, described her as being pleasant and vulnerable. He also described her as a cogent detailed historian. I note that she described herself as being happy in her current circumstances, the interview being conducted on 2 May 2019. Dr Justin Lewis, consultant psychiatrist, who examined the plaintiff at the request of her solicitors on 1 May 2019, described her as presenting as an open, honest and reflective individual. Mr Gary Speck, orthopaedic surgeon, examining the plaintiff at the request of the defendant, found her to be cooperative, whilst Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who examined the plaintiff at the request of her solicitors, described her as being cooperative and earnest. Dr Jill Harding, clinical neuropsychologist, who assessed the plaintiff at the request of her treating general practitioner, Dr Hamilton, reported to that doctor that the plaintiff presented as being pleasant and cooperative. Certainly the plaintiff presented well, but whether she gave a full account of her movements and activities to some examiners is another matter and one which shall be discussed subsequently.
13 As shall be discussed, the plaintiff has had a somewhat complicated life and has seen a lot of doctors. In their written submissions, counsel for the defendant described the plaintiff’s reliability and credibility as being a central issue in the case. Such matters are usually important. I also appreciate that the plaintiff has been treated by a multitude of doctors and has been examined many times for medico‑legal purposes. I would not expect histories and presentation to be exactly the same in every case. The bottom line is that I am of the view that there has been some damage to the credit of the plaintiff and particularly as to whether some medical examiners obtained a complete history of her post-accident activities. On the other hand, she had been quite open about some aspects of her life and the activities in which she has engaged. An important issue seems to me to be whether, in the light of her complaints and what is known about the activities in which she has participated, the statutory test has been satisfied.
(d) The state of the plaintiff’s health prior to the accident
14 There is nothing of significance in the plaintiff’s medical history prior to the accident. It would appear that she did have an x‑ray of her back in 2005, this apparently being at the request of a chiropractor. Thoracolumbar scoliosis was noted, but disc spaces and the like were well preserved throughout. The plaintiff’s recollection of this was vague, to put it mildly. I attach no great significance to it. I would refer to the cross-examination at T72 ‑ 74.
15 it would appear that, during adolescence, the plaintiff had some input from a psychiatrist, Dr Melinda Kemp, in relation to depression and anxiety.
16 Against that background, I shall now deal separately with the injuries upon which reliance is placed.
(A)The injury to the back
(i) The injury, its treatment and diagnosis
17 Given the very large number of medical reports put before me – namely 49, along with six radiological reports – I shall not set out the contents of each in great detail. I shall attempt to condense them, particularly those which I consider to be of lesser significance.
18 As stated, the injury occurred on 21 June 2013 when the plaintiff was struck by a truck when crossing the road as a pedestrian. She believed that it may have been the wing mirror of the vehicle that struck her in the head. It would seem that she was unconscious for a brief period. She was conveyed to the Royal Melbourne Hospital by ambulance and was given a CT scan, which seems to have concentrated largely upon the head and neck areas. Effectively, no findings of note were detected. A chest x‑ray was also carried out, as was an x‑ray of the pelvis, which revealed no fracture or subluxation. The plaintiff’s immediate symptoms essentially involved fractured teeth and an unusual sensation, apparently consistent with Post-traumatic Stress Disorder, in relation to her left arm. She also had severe shoulder pain.
19 She returned to work after some 10 days, but developed back pain. In relation to a work-related matter, she went to the Netherlands for approximately a fortnight, this being within about two months of her return to work. She had some physiotherapy, but then attended upon Dr Tara Thyagarajan in Hawthorn East. That doctor sent her for an MRI scan of her lumbar spine, which was carried out on 14 November 2013. The findings of the radiologist were that there was mild L4/5 lumbar canal stenosis secondary to a central and left L4/5 disc prolapse with impingement of the left L5 nerve root within the left lateral recess. In addition, at the L5/S1 level there were almost identical findings in relation to lumbar canal stenosis and a disc prolapse, these being the subtle impingement of both S1 nerve roots within both lateral recesses. There was also mild lower lumbar spondylosis. A further MRI scan involving degeneration protocol seems to have been carried out on 13 December 2013. This revealed degenerative changes at L4/5 and L5/S1, including foraminal disc material abutting the exiting left L5 nerve root. However, the conclusion was that there were degenerative changes, but no definite cause found for right sided symptoms.
20 Whilst dealing with radiology, at a later date, namely 25 September 2019, the plaintiff underwent an MRI of the lumbar spine. The conclusion of the radiologist was that there was a disc bulge at L4/5, which resulted in mild central canal and mild bilateral neural exit foraminal stenosis. I have left to one side an MRI of the brain and one of the cervical and thoracic spine performed on 31 March 2014 as these are of no great relevance, other than that they effectively reveal no abnormalities.
21 In 2014 the plaintiff saw a number of specialist medical practitioners. She saw Dr Karen McKertich, urologist, in relation to bladder problems. She was also referred to Dr Malcolm Hogg, specialist in anaesthesia and pain medicine. This referral was by Dr Avinash Kamale, who was the plaintiff’s treating general practitioner at the time. I shall discuss material from Dr Kamale subsequently. Dr Hogg described the plaintiff’s pain as being musculoskeletal, in the low lumbar region extending up the thoracic and bilateral scapular region. In his report of 5 November 2014 to Dr Kamale, there is an emphasis upon appropriate medication and also the need to control anxiety. In a further report to Dr Kamale of 3 June 2015, there is considerable reference to psychological features, but it is stated that back pain remains her issue. The plaintiff was not keen on more aggressive pharmacological management. A report of 6 August 2015 to the plaintiff’s then solicitor refers to variable levels of disability and psychological distress. There is also mention of the plaintiff’s symptoms being stable, with ongoing back pain exacerbated by physical activity, but with no radicular component or evidence of neural impingement. Dr Hogg thought that ongoing concerns would remain with a variable but moderate degree of disability.
22 It is apparent that Dr Hogg did not see the plaintiff between November 2015 and 8 August 2018, he reporting to Dr Kamale after seeing the plaintiff on that day. As stated, he had not seen her since November 2015. He referred to her as having made an excellent recovery, referring to her return to employment and her relationship structure. She still had periods of pain exacerbation, but was maintaining occupational and social activity, as well as a low-grade physical activity program. There was no regular physiotherapy or psychology input. The plaintiff was 20 weeks pregnant at this time. The plaintiff was concerned in relation to back pain, as well as pain associated with the delivery of a baby. There was a suggested use of low-dose non-steroidal medication or the judicious use of opioids.
23 Professor Stephen Davis, neurologist, reported to Dr Kamale on four occasions between 28 January 2014 and 26 August of that year. He also reported to the plaintiff’s then solicitor on 18 May 2015. In his earliest report of 28 January 2014, Professor Davis took a history which included that the plaintiff had a deal of back pain following the accident. She got back to work, ultimately on a full-time basis, but two or three months later experienced the onset of severe back pain radiating to one or both legs. It is apparent that the plaintiff had seen Professor Andrew Kaye, who apparently considered that the plaintiff’s radiological changes, as seen on MRI scans, would explain her symptoms. Professor Davis’ findings on examination were described as unremarkable with retained power, reflexes and sensation. Essentially he suggested ongoing physiotherapy, and a small dose of Lyrica, Mobic and Panadeine Forte as needed. Professor Davis reported to Dr Kamale on 3 March 2014, a further review having been suggested. On this occasion the plaintiff’s pain had improved to some extent in her lumbar spine and legs, although she had some upper back problems. Professor Davis did not think that the changes in the lumbar spine were sufficient to account for her diffuse symptoms and recommended an MRI of the brain, cervical and thoracic spine. This was performed, but essentially no abnormalities were identified.
24 Professor Davis reported again to Dr Kamale some six weeks later on 14 April 2014. He thought that the plaintiff was doing quite well. Whilst she had had a break from various analgesics, Mobic was restarted and Panadol continued. A urinary tract ultrasound was normal. Professor Davis reported again on 26 May 2014. He described the neurological examination carried out as being “reassuringly normal”, suggesting a review in three months. A report of 26 August 2014 refers to the fact that there were no definable neurological abnormalities.
25 Professor Davis reported to the plaintiff’s then solicitor on 18 May 2015. This report covers much of the ground previously contained in reports to Dr Kamale, but also includes a summary of a review in February 2015. Professor Davis described the plaintiff’s trajectory as seemingly one of improvement. Her pain was restricted to the low back and there was no sciatica. There were no continence issues and she was using Panadeine Forte only as required. She seemed to be stable. The opinion of Professor Davis was that the plaintiff had suffered soft tissue injuries to the back with chronic pain problems, including variable sciatic type pain radiation and “perplexing neurological symptoms”. Professor Davis observed that the investigations were reassuring, stating that the plaintiff was markedly improved when last seen in February 2015 and had a good prognosis. Professor Davis also pointed out that the pain management program had been supported by Dr Pia Brous, psychiatrist. The conclusion of Professor Davis was the that the plaintiff had a good prognosis, but that low back pain may be an enduring problem, along with psychiatric consequences.
26 Three reports from Professor Andrew Kaye to Dr Kamale were also placed in evidence. The earliest of these is of 29 November 2013. Professor Kaye expressed the opinion that the MRI of 14 November 2013 showed a minor disc bulge at the L4/5 level, as well as a moderate sized disc bulge at L5/S1, which did cause some nerve root and thecal compression. There was a scoliosis. Professor Kaye thought that the radiological findings would certainly be the basis for her symptoms, and advised continuing with conservative treatment. This included walking, swimming, gentle physiotherapy and the avoidance of excessively stressful exercise. He organised for her to be seen by a specialist physiotherapist. Professor Kaye further stated that he would review the plaintiff in two months’ time. A brief letter from Professor Kaye to Dr Kamale of 13 December 2013 was also put in evidence. Apart from increasingly severe back pain, what seems to have precipitated this letter related to a number of episodes of incontinence. Professor Kaye could find no overt objective neurological findings and thought it unlikely that there was a direct organic spinal basis for the incontinence. However, he organised an urgent MRI and would report further. He reported again to Dr Kamale on 23 December 2013. He again referred to the degenerative changes shown on the MRI. There had been some problem with incontinence, but Professor Kaye could find nothing on the radiological investigations to account for this. Further conservative treatment, including the suggested physiotherapy program, was recommended. He also thought that it was reasonable that the plaintiff see Dr Hogg and was going to forward a copy of the letter to him.
27 Turning to the material from the plaintiff’s general practitioner, Dr Kamale reported to the plaintiff’s then solicitor on 15 June 2015. Dr Kamale first saw the plaintiff on 24 June 2013, three days after the accident. The immediate concerns of the plaintiff were of a concussion, teeth fracture, laceration of the lip and bruising of the left eyebrow. It would seem that she started getting severe back pain a couple of weeks after returning to work on a part-time basis. It is not mentioned that such employment apparently took her to the Netherlands for a fortnight. In any event, Dr Kamale has recorded the referral to Professor Andrew Kaye and to Dr Hogg. He noted that the plaintiff stopped working due to severe back pain in November 2013. She had since seen a physiotherapist, a chiropractor and a urologist, in addition to Professor Davis. She was further seeing a psychologist, Ms Holms, and a psychiatrist, Dr Kemp. Dr Kemp had found that the plaintiff was suffering high anxiety, insomnia and anorexia. Whilst medications had been prescribed, the plaintiff was not happy to take them and they had some side effects. Dr Kamale described the plaintiff as suffering from low back pain, Post-traumatic Stress Disorder, anxiety and obsessive compulsive disorder. He thought that there were physical signs suggestive of a functional illness disorder. There was also reference to non-compliance with psychiatric medications. He was of the view that the plaintiff needed appropriate medication (antidepressant) and a self-management program. Her prognosis at the time was guarded, due to her resistance to treatment with appropriate medication and to engaging with the psychiatrist.
28 The only other reports from someone who has treated the plaintiff for physical injuries are from Dr Rosie Hamilton of Mullumbimby, New South Wales (near Byron Bay). There is a brief letter of 15 May 2019 from Dr Hamilton to Dr Hogg. The purpose of the letter was to seek Dr Hogg’s recommendations in relation to pain management. By this time, the plaintiff had given birth to her son. The plaintiff had suffered a couple of episodes of severe back pain and, as she was breastfeeding, she was concerned in relation to analgesia.
29 Dr Hamilton reported to the plaintiff’s solicitors on 23 December 2019. In it, she referred to the accident and stated that the plaintiff had had a complex recovery, complicated by the development of PTSD/anxiety/depression and chronic pain. She had been under the care of a pain medicine specialist (presumably Dr Hogg) and had been referred by Dr Hamilton for psychiatric input. Interestingly, she states that the plaintiff had not been able to work since the accident, which is incorrect on a couple of counts. In fact, the plaintiff resumed work after the accident and has since worked in the Byron Bay area. In any event, Dr Hamilton stated that the plaintiff would not currently be fit to work and that her prognosis remained guarded. There is no reference to the birth of the plaintiff’s child, which seems to have occurred in approximately January 2019, or to the correspondence with Dr Hogg. I would also point out that Dr Hamilton observed that the plaintiff was a relatively new patient and that the file of her original treating doctor was not with her.
30 The plaintiff has also been seen for medico‑legal purposes. The plaintiff was seen by Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, who reported to her solicitors on 29 April 2019. He reviewed a considerable number of medical reports from treaters and from medico‑legal examiners, including some who had examined at the request of the employer in the accident compensation claim. To Dr Aliashkevich, the plaintiff was complaining of constant, electric pain in her entire lower back area, mainly on the left side in the past week. She had difficulty in picking up her baby from the cot. She was doing some household duties, including mopping and vacuuming on alternate days. She could walk comfortably for 30 minutes every day and could sit without pain, but was only able to stand for less than 10 minutes. The diagnosis of Dr Aliashkevich was of chronic back and bilateral leg pain, the aggravation of lumbosacral spondylosis and a suspected left sacroiliac joint injury. He also referred to a chronic pain syndrome. He thought that there was a substantial overlay of psychosocial problems. Considering her lumbar spine condition only, he thought the plaintiff to be theoretically capable of administrative part-time work, starting at 12 to 16 hours per week. Whether or not he was aware that, prior to the birth of her baby, the plaintiff had actually been working in the Byron Bay area is not clear. Essentially he agreed with the conclusions of Dr Andrew Miller, occupational health consultant, who had examined the plaintiff at the request of Redfig’s insurer, to the effect that there were various employment options (marketing coordinator, business development officer and the like) which would be suitable from a physical point of view. Dr Aliashkevich considered the plaintiff’s condition to be essentially stabilised and the prognosis to be guarded. He was uncertain as to whether she would be able to achieve full functional recovery in the foreseeable future. She had a reduced capacity in relation to physical repetitive work involving prolonged or sustained bending and the like.
31 Dr Aliashkevich provided to the plaintiff’s solicitors a brief supplementary report of 14 February 2020. It would not seem that he saw the plaintiff again. He was provided with the report of the MRI of 25 September 2019. He compared the radiologist’s findings with those of the earlier MRI of 15 December 2013. Essentially he thought that the finding on the more recent MRI could be consistent with the gradual progression of the degenerative changes over the years. However, at the L5/S1 level, there was an indication of some improvement, in that L5/S1 disc material abutting the exiting L5 nerve root was no longer described. Essentially, his opinion remained unchanged.
32 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, reported to the plaintiff’s solicitors on 7 May 2019. The plaintiff informed Dr Thomas that she had suffered a recent flare up of some severity, but that this had settled. She indicated that her pain levels were 3/10, but could occasionally get up to 6/10. There was some interference with her sleep, but she was breastfeeding. Dr Thomas seems to have been provided with a review of the MRI of 14 November 2013, but at no stage that of 25 September 2019. In any event, he diagnosed ongoing chronic pain, but stated that it was hard to know what the underlying cause was in the first instance. However, he implicated the accident. He also referred to a clear emotional dimension to the plaintiff’s presentation. Dr Thomas thought that there had been a profound impact on the plaintiff’s ability to function socially, domestically and recreationally and that this would remain the situation into the foreseeable future. He does not seem to have obtained a history of the plaintiff’s travels and the like since the accident. He thought that she did have a work capacity purely from a physical perspective, but that she could not be tethered to one position. He considered the prognosis to be for ongoing pain and disability, also stating that the plaintiff was very much aware of her emotional state and the effects of that.
33 The defendant also placed in evidence some medico‑legal reports, the earliest of these being from Mr Greg Etherington, spine surgeon, who had reported to Redfig’s insurer on 11 August 2014. The plaintiff told Mr Etherington that her principal pain was in the low lumbar spine, initially on the left side but now affecting the right side as well. It was made worse with trying to drive. Mr Etherington stated that his impression was that the plaintiff had persistent lumbar spine pain and some neurological symptoms which have not been able to be explained. He did refer to degenerative changes at L5/S1, which would have been present before the accident, but been asymptomatic. He referred to her as having been in continuing lumbar spine pain and needing treatment, but neurological symptoms were more difficult to quantify. He also referred to psychological and psychiatric factors. He put restrictions upon her employment options. Whilst he could understand the onset of the lumbar spine symptoms, the neurological features were considered by him to be totally unexplained and it was possible that the onset of such symptoms occurred six months after the accident.
34 Mr Clive Jones, orthopaedic surgeon, saw the plaintiff at the request of Redfig’s insurer and his report was also placed in evidence by the defendant. It is dated 1 May 2015. The history taken by Mr Jones included that initially there was pain in both legs. This had now “more or less” completely disappeared, but the plaintiff still had low back pain and stiffness. Mr Jones found it difficult to explain the plaintiff’s current symptoms in physical terms, noting that a diagnosis of traumatic stress disorder of significant degree had also been made. He thought that a physical assessment did not suggest that any severe spinal disorder was present, but that there were physical signs suggestive of a functional illness and disorder. He noted that the most important aspect of her treatment at the present time was psychiatric in nature and would need to continue. He described the plaintiff as being able to drive a motor vehicle, noting that she had not returned to work. He could not provide a diagnosis in physical terms. Mr Jones suspected that psychological, rather than physical, factors appeared prominent in her presentation.
35 Dr Andrew Miller, occupational health consultant, saw the plaintiff at the request of Redfig’s insurer, reporting on 6 November 2015. The plaintiff described the accident and her history of treatment, concluding that by saying that her condition had not improved either physically or emotionally. She told Dr Miller that she did not socialise or go for walks and that only in the last few months had she been able to resume driving. Dr Miller thought that the plaintiff may have sustained acute soft tissue injuries to her neck, back and upper limbs. His impression was that it was now her emotional state which was the major impediment to her achieving a successful rehabilitation. He placed considerable emphasis upon this. From the physical point of view, he thought that she could undertake her normal duties, whilst thinking that she would be incapacitated from an emotional point of view.
36 Dr David Szmulewicz, neurologist, saw the plaintiff at the request of the defendant, reporting on the day of the appointment, namely 10 May 2019. Whilst an extensive number of documents and reports had been provided to him for this examination, the subsequent MRI of 25 September 2019 was not forwarded to him. The pains which the plaintiff described to Dr Szmulewicz were in the upper thoracic region and the left or bilateral lumbar region. She assessed each as being in the range of 2/10 to 8/10. She stated that her back pain flares up approximately two-monthly and requires her to lay flat for between one and seven days. She was not on regular medication, because she was breastfeeding. She described herself as being far less active than she had been before the accident, with her social life also being limited by back pain. She is able to sit comfortably, but cannot stand comfortably for more than 10 minutes. Her husband assists with domestic tasks and driving the car. She felt that, in addition to her back pain, her current work capacity was limited by mental health issues experienced since the accident.
37 The diagnosis of Dr Szmulewicz was of thoracic and lumbar spine pain in the context of a musculoskeletal pain syndrome. Because his examination was limited by the plaintiff’s pain and tenderness, he could not identify a specific structural neurological component. He also thought that there was cognitive impairment in the context of a possible traumatic brain injury. Neuropsychological assessment may aid in this regard. He thought that it was reasonable to expect that there would be further improvements in relation to her back pain with ongoing treatment. Dr Szmulewicz also recorded that the plaintiff acknowledged that her back pain might be aggravated by intense emotional circumstances or stress.
38 Mr Gary Speck, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 23 April 2019, reporting on 13 May. Mr Speck recorded that the plaintiff suffered from left sided low back pain with left leg pain, but had not had any leg pain in a very long time. I note that the plaintiff told Mr Speck that she was seeing Dr Hogg approximately every six months and Dr Kamale about every two months. Neither of these propositions would appear to be particularly accurate as at April 2019. She also told Mr Speck that she had made a conscious decision to shift to Byron Bay and self-manage with the use of heat and paracetamol and with the intention of avoiding medication as much as possible. She further informed Mr Speck that she had periods when she takes no analgesics now and manages many of the household activities without analgesics. Her episodes of severe pain are becoming less frequent. Her current symptoms were in the left low back and extend upwards. She was using Panadol only, because she was breastfeeding. There is a reference to ongoing physiotherapy, although the second affidavit of the plaintiff describes this in the context of her pregnancy. She described various household and personal care activities in which she is able to engage. Flare ups do occur, although they are becoming less frequent. The examination of Mr Speck pre-dated the recent MRI scan. He noted that, from the contemporaneous records of the Royal Melbourne Hospital, there was no record of pain other than in the facial area. He considered that the development of the back pain approximately three months after the accident made it unlikely that there was a soft tissue injury to the low back in that accident. His diagnosis was currently that the plaintiff had a chronic pain syndrome without specific organic pathology being identified. He did not believe that there was an underlying organic explanation for her ongoing pain and thought that her current treatment was appropriate. He thought that she had no physical restriction as a result of the accident.
39 On balance, I accept that the plaintiff did suffer a soft tissue injury to her back in the accident. In that regard, I prefer and accept the opinion of her treating neurologist, Professor Davis, who has specifically stated that the plaintiff suffered soft tissue injuries to the low back as a result of the accident. Dr Miller, examining on behalf of Redfig, referred to acute soft tissue injuries to the neck, back and upper limbs, whilst also referring to the plaintiff’s emotional state. Mr Etherington, spinal surgeon, similarly examining, referred to ongoing lumbar spine pain, the cause of which is unclear, although also referring to degenerative changes noticed at the L5/S1 segment. Dr Aliashkevich, neurosurgeon, referred to aggravation of the lumbosacral spondylosis and the subsequent evolution of a chronic pain syndrome. Of course, Mr Speck is of the view that the plaintiff has a chronic pain syndrome without specific organic pathology having been identified. Thus, opinions are not unanimous, but the most recent MRI of 25 September 2019 revealed what the radiologist describes as a disc bulge at L4/5 resulting in mild central canal and mild bilateral neural exit foraminal stenosis. This is perhaps not greatly removed from the conclusion of the radiologist in 2013. This referred to degenerative changes at L4/5 and L5/S1 and no definite cause for right sided symptoms. Professor Davis was aware of these radiological findings. As the treating neurosurgeon who saw the plaintiff several times, his opinion seems to me to be well based and I accept it.
40 Whilst the plaintiff had undergone an x‑ray of the spine in 2005, I accept that she had no symptoms of note prior to the accident and suffered no restrictions emanating from the spine.
41 I also accept that the physical consequences that have occurred are long-term within the meaning of the Act. Dr Thomas has stated that the prognosis is for ongoing pain and disability. Dr Aliashkevich referred to the prognosis as being guarded. Some consequences have now been present for a period approaching seven years.
42 The psychological and psychiatric consequences of the accident shall now be discussed. That such consequences do exist is something of which I am satisfied. It is also to be remembered that the plaintiff is specifically relying upon paragraph (c) of the definition, in addition to Richards v Wylie. I shall now deal with those aspects of the case.
(ii)The psychological and psychiatric consequences
43 Inevitably, in a case such as this there is some potential overlapping between consequences of a physical nature and those of a psychological or psychiatric nature. The situation is further complicated by the differing tests involved – “serious” in respect of impairment or loss of a body function as opposed to “severe” in respect of mental or behavioural disturbances or disorders (see s93(17) of the Act). I shall return to this topic after having dealt with the opinions in the reports which are clearly directed towards mental or behavioural disturbances or disorders.
44 Dr Melinda Kemp, consultant psychiatrist, saw the plaintiff on referral from Dr Kamale. As at the date of her report of 26 February 2014 to Dr Kamale, she had seen the plaintiff on four occasions. The plaintiff described to her flashbacks, insomnia, nightmares, becoming socially isolated, lowered mood and marked anxiety. Dr Kemp discussed with her Post-traumatic Stress Disorder and depression and prescribed medication. Slight improvement in mood had occurred, although there were still significant features of Post-traumatic Stress Disorder. There are no more recent reports from that doctor in evidence.
45 Dr Pia Brous, psychiatrist, apparently saw the plaintiff on referral for a second opinion from Dr Kamale. Her initial report is dated 6 July 2014. She had seen the plaintiff six times. She had been provided with a number of reports, including that of Dr Kemp and also a report from Dr Sophie Holmes, psychologist. An interesting observation of Dr Brous is that the plaintiff was consulting 11 professionals (12 including Dr Brous). I note that Dr Brous recorded that the plaintiff was particularly concerned about her physical health. She was convinced that there was something seriously wrong in her body that no doctor had yet detected. Dr Brous also listed some eight relevant stressors, several of which had no relationship to the accident. The diagnosis of Dr Brous was of Post-traumatic Stress Disorder with secondary depression and generalised anxiety disorder. She thought that the plaintiff’s vulnerable personality style and ways of coping were a component of her presentation. She recommended a case conference involving current clinicians and ongoing treatment by the psychologist.
46 Dr Brous reported to Dr Kamale again on 12 August 2014. I gather that there had been no success in attempting to set up a case conference. Dr Brous had reviewed the plaintiff again on the day of the report. The plaintiff was now looking after four children for whom she had cared in conjunction with her then partner. Her domestic situation had been somewhat complicated, her partner having been a woman who seems to have had custody of the four young children. In any event, the plaintiff had been looking after them, which had caused her to be very busy and had “pushed the pain right to the back of her mind”. Her mood was better, panic attacks had ceased, she was sleeping better and her functioning was much improved. She had dropped all regular appointments with the physiotherapist, the acupuncturist, the art therapist and the hydrotherapist. Dr Brous commented that the plaintiff was still very anxious, with somatic, obsessional, hypochondriacal and post-traumatic symptoms. In the opinion of Dr Brous, it was not possible to implement any further treatment plan until the crisis regarding the children, which the plaintiff considered as her own, had been resolved.
47 The plaintiff was then referred to a third psychiatrist, Dr Simone Luscombe, who first saw her on 2 December 2014, reporting to Dr Kamale on 15 December. The plaintiff had reduced the number of doctors who were treating her, this group including her psychotherapist, Dr Sophie Holmes. It is of interest that the plaintiff continued to believe that the true cause of her pain had been missed by doctors. Dr Luscombe described the plaintiff as suffering from very high levels of anxiety, insomnia, flashbacks, depressed mood and the like. Dr Luscombe trialled her on different medications, stating that the “mainstay” of treatment was the work with Dr Holmes. She was aware that the plaintiff had pre-existing issues in terms of difficulty with conflict, asserting her needs and setting limits on the demands of others. However, Dr Luscombe did not yet have a full understanding of the plaintiff’s pre‑existing personality function.
48 Dr Luscombe provided what she described as a medico‑legal report (to whom it is not clear) on 19 October 2015. Dr Luscombe expressed the opinion that the plaintiff suffered from Post-traumatic Stress Disorder, chronic pain syndrome and Obsessive Compulsive Disorder. It is interesting to note that, in this brief report, Dr Luscombe recorded that the plaintiff was frightened to drive or be a passenger in a motor vehicle and remained virtually bedridden for days on end. Exactly when Dr Luscombe last saw the plaintiff is not clear, although she concluded her opinion with the comment that the plaintiff had made no significant or sustained improvement over the last year and at times had deteriorated. She also stated that she was reviewing the plaintiff on a fortnightly basis. Dr Luscombe listed various medications that had been tried. She would probably never make a full recovery and Dr Luscombe was uncertain as to what degree of recovery could be achieved. A subsequent report of Dr Luscombe of 25 January 2016 makes it clear that the previous report of 19 October 2015 covered assessment and treatment up until 8 September 2015, which was the last occasion upon which she saw the plaintiff. She expressed the opinion that the plaintiff had a poor prognosis in relation to her return to suitable employment and, when last seen, had in fact deteriorated in her mental state.
49 Dr Sophie Holmes has been the plaintiff’s treating psychologist. She has provided a very lengthy undated report, which is a summary of treatment sessions between 18 February 2014 and 28 August 2015. It is of interest that she gave an initial history, on a date which is not entirely clear but probably in early 2014, of feeling too terrified to drive and being driven by one of her parents, mostly her mother, to appointments with her medical specialists. She regarded her mother’s presence at medical appointments as being essential and reassuring. The plaintiff was upset that no one seemed to know what was wrong with her. The plaintiff stated that her body and mind were out of control and she was powerless and overwhelmed by medical issues and chronic pain. She was living with her partner, her partner’s mentally ill mother and four younger siblings. She was contributing heavily to the support of this group. However, in January 2014, she had returned to live with her own family. Dr Holmes described the plaintiff as being a highly vulnerable person, suffering from anxiety and panic attacks. She described chronic pain, poor sleep and was very thin. Between April and June 2014, there were stresses associated with the police deciding to charge the driver of the truck. Further, the plaintiff’s father had received a serious diagnosis. She was also unable to be in a relationship with her partner and was very sad that she was no longer able to care for her partner’s younger siblings. In May and June of 2014, she improved considerably and went on a two-week trip with her mother. There was further improvement between July and September 2014 and she was communicating better with her parents. There was still some disruption of sleep, although there had been improvements. It seems to be at this time that Dr Holmes suggested a referral to Dr Bruce.
50 Dr Holmes reported that, in September 2014, the plaintiff improved after the police case against the driver involved in the accident was over. At her request, at the end of September Dr Holmes wrote a letter of support for special entry to university for 2015.
51 From the end of September to early November 2014, the plaintiff went away with her mother, her partner and the younger siblings. She returned with less pain and was sleeping better. She had started to drive again, initially for short trips around familiar areas and slowly expanding. She could not go very far or very long as her back and neck pain would return, but the pain was not as strong or as constant as before. She had taken on more responsibility in relation to the lives of her partner’s siblings. Just after New Year, she had gone on holidays with her father, although spending long periods of time with her friends and following her own agenda. In relation to the period of February to May 2015, she was clear in her thinking. Her pain was still present, but less intrusive. Her weight and sleeping had continued to improve. She had problems in relation to things such as deadlines for essays. She was described as approaching tasks with determination and optimism and had established herself in a challenging job. University assignments could be a problem. Turning to the period June to August 2015, the plaintiff had decided not to complete the semester because of the stresses involved. She and her partner were united in managing the stresses associated with the mental illness of her partner’s mother and were working together in relation to child protection. Attention was focussed on her understanding and improving the quality of communication with her partner.
52 Ms Annabel McLisky, psychologist, is based in Bangalow, New South Wales, and saw the plaintiff on six occasions between 5 June and 30 October 2019. She diagnosed Post-traumatic Stress Disorder. She considered the plaintiff to have no present capacity for work. The plaintiff claimed that, because of her injuries, she had been unable to study at university. She was anxious about her future and her capabilities. Ms McLisky stated that the physical and psychological trauma that the plaintiff had experienced seemed to have damaged her life irrevocably. She would require long-term medical, physiological and psychological support.
53 Dr Hamilton at Mullumbimby referred the plaintiff to Ms Jill Harding, clinical neuro-psychologist, who reported back on 25 January 2020. I note that the plaintiff told Ms Harding that she had been unable to drive for two years after the accident due to anxiety. Things had improved after she met her now husband, although she told Ms Harding that she was still vulnerable. She reported that she had disturbed sleep due to her child waking and could not recall if her sleep was disturbed before she had the baby. She also had difficulty concentrating and with her short-term memory. She was anxious when driving and tries not to leave her home town. Her depression was improving. Flashbacks had largely resolved, although she reported some nightmares. On the day of assessment, testing indicated that she had moderate levels of stress, anxiety and depressive symptomatology. In conclusion, Ms Harding referred to the plaintiff as having some cognitive difficulties likely to be accounted for by her psychological state, rather than any residual deficits caused by a concussion injury. Ms Harding recommended the continuation of clinical psychology intervention, also expressing the view the plaintiff may benefit from psychiatric assessment and management, given her presenting anxiety symptoms. There was a discussion about her returning to a less taxing course of study until her psychological symptoms are better managed. There was some discussion of enrolling at a larger university. Various cognitive strategies that may be beneficial were suggested, including prompts, cues, the removal of distractions and the like.
54 Dr Justin Lewis, consultant psychiatrist, saw the plaintiff at the request of her solicitors and reported on 2 May 2019. Dr Lewis obtained a comprehensive history. The plaintiff stated that there had been progressive improvement in her Post-traumatic Stress Disorder symptoms and her current mood was “relatively good”. However, her motivation remained low. She had made friends in the Mullumbimby area and was coping in a domestic sense, albeit in a slightly reduced capacity. She said that she did not drive for the first two years following the accident and was “hypervigilant” when driving. Whilst she had resumed driving, she preferred to drive locally. Nightmares were much less frequent. She rated her average pain as 2/10, whereas previously it had been 4/10. It could increase to 8/10 during a flare-up. She indicated that she had worked full-time at a clothing store in 2017, but had ceased that in order to travel to South America over a two-month period. She had gained entry into law school, but had decided to defer her studies due to poor motivation and decreased resilience. She had also withdrawn from a primary school teaching course. Her role as a mother had given her some focus and purpose. She was continuing with psychological support from Ms Holmes and said that she had made good progress with the passage of time. Dr Lewis thought that, whilst there had been a progressive trend of improvement in relation to traumatisation symptoms, the plaintiff still had significant psychiatric disability characterised by impaired confidence, poor resilience, low stress tolerance and the like. He noted that she had not received psychotropic medication for the past few years.
55 The diagnosis of Dr Lewis was of a partially remitted Post-traumatic Stress Disorder. In the earlier stages of her illness, the plaintiff may have satisfied the criteria for a Major Depressive Disorder. However, the major depression had almost fully remitted. She would also meet the criteria for a chronic pain syndrome due to both medical and possibly psychological factors. She believed that she could work two days per week in a retail job and Dr Lewis concurred with that assessment. (I would point out that Dr Lewis had recorded that the plaintiff had worked full-time at a clothing store in 2017, ceasing in order to travel to South America. As shall be discussed, later she worked some three to four hours per day in a candle factory.) Dr Lewis thought that the plaintiff required ongoing psychological treatment for her residual Post-traumatic Stress Disorder. She would also benefit from coping strategies. Her psychiatric condition could be regarded as having stabilised. She continued to enjoy social contact, although being considerably reserved in comparison with her pre‑injury social functioning. Dr Lewis thought that the plaintiff may benefit from referral to a consultant psychiatrist.
56 As stated, Dr Natalie Krapivensky, consultant psychiatrist, saw the plaintiff at the request of Redfig’s insurer on several occasions. It is to be borne in mind that ultimately she had doubts about the truthfulness of the plaintiff. In any event, she first saw the plaintiff on 28 August 2014. Dr Krapivensky diagnosed Post-traumatic Stress Disorder and major depressive illness, with incapacity resulting from the injury in question. She referred to the Post‑traumatic Stress Disorder as being virtually untreated. She anticipated that, with appropriate treatment, the plaintiff might have a work capacity within 12 months. She saw the plaintiff for a second time on 2 March 2015. It is of interest that the plaintiff stated that she generally experienced pain assessed at 5/10 throughout the spine and no longer had any sciatica. The diagnosis was of continuing Post-traumatic Stress Disorder and depressive illness resulting from the accident. Dr Krapivensky also referred to the plaintiff’s non-compliance with suggested treatment and her desire to control medication. She stated that the plaintiff seemed to be virtually entirely housebound and had significant issues interacting with the outside world, amongst other problems. Dr Krapivensky thought that the plaintiff had not commenced adequate treatment.
57 As earlier mentioned, Dr Krapivensky saw the plaintiff again on 31 August 2015. On this occasion, the plaintiff presented in a manner very similar to the previous presentation. She had ongoing significant symptoms of Post-traumatic Stress Disorder, including nightmares, flashbacks, heightened level of anxiety, widespread fears and panic attacks. There appeared to have been virtually no improvement in her mental state. Dr Krapivensky also noted that the plaintiff was actually refusing appropriate treatment. She emphasised the plaintiff’s non-compliance with recommended treatment, and Dr Krapivensky anticipated that the plaintiff would recover her work capacity with appropriate treatment for her psychiatric condition. However, her non-compliance with treatment was an obstacle that prevented her return to work.
58 It was following this appointment that the surveillance was conducted and the DVDs apparently forwarded to Dr Krapivensky. I note that, in the report of 31 August 2015, Dr Krapivensky recorded that the plaintiff had said that she was now able to drive, whereas in her supplementary report of 15 December 2015, there is reference to the plaintiff telling the doctor that her mother was waiting outside as she could not drive herself. Whether that meant on the day or at all is not clear. In any event, Dr Krapivensky stated that the plaintiff was certainly much more active and outgoing than she had reported.
59 Dr Timothy Entwisle, consultant psychiatrist, reported to the defendant on 3 May 2019. Amongst the history taken by Dr Entwisle there is reference to the fact that, prior to giving birth to her daughter, the plaintiff started work in early 2017 at a clothing store in Byron Bay, having moved there with her now husband. He also noted that she had travelled with her husband to South America and at one stage went to Mexico on her own for two months. The history of the birth of the child was also taken. In relation to her emotional state, the plaintiff told Dr Entwisle that her mood was good. She had strongly bonded with her child and had social contact with a number of people whom she had met in Byron Bay. She described her life as being happy, saying that she was now not generally depressed. She remained physically active, although requiring assistance in relation to bathing the baby. She remained anxious. She had not required treatment with medication for her back for some months and, whilst her symptoms were continuing, they were more manageable. Her sleep was disturbed essentially by the need to attend to the baby. The diagnosis of Dr Entwisle was one of Post-traumatic Stress Disorder in partial remission. There was a pain syndrome in partial remission and a somatic symptom disorder in remission. In more recent times, the plaintiff had been able to travel internationally and had given birth to the baby, who was progressing well. She described herself as currently happy, albeit with some remnants of her accident-related symptoms and some pain. This does not prevent her from caring for the baby and completing various household tasks, having previously worked full-time in a clothing store in Byron Bay.
60 In relation to the plaintiff’s prognosis, Dr Entwisle said that there had been significant improvement from 2015/16 onwards. She remained apprehensive as a result of the accident, but had bonded closely with her child. Her relationship with her husband was progressing well. Overall, given her previous work record and above-average intelligence and determination, the prognosis was regarded as more than reasonable at this point of time. She had a capacity for full-time employment, bearing in mind she had been so working prior to the birth of the child. The injuries in regard to chronic pain and psychiatric symptoms of depressed and anxious mood had severely interfered with her domestic and leisure activities for a period, but do not do so currently.
61 Throughout this discussion of mental injury, I have left to one side the treatment and opinions of Dr Hogg. The area of pain medicine is one which can provoke discussion as to how much of it is organic and how much relates to matters of psychology or psychiatry. Certainly in his initial report to Dr Kamale, Dr Hogg assessed the plaintiff as having non-specific low back pain with subsequent psychosocial distress and disability, also referring to a distant past history of anxiety. In relation to pharmacological management, he mentioned anti-depressants. He also thought that referral to the plaintiff’s previous psychiatrist should be considered. In his report to the plaintiff’s then solicitor of 6 August 2015, Dr Hogg stated that the plaintiff presented with persistent pain of unclear aetiology, along with psychological features including anxiety, stress and the like. He referred to a long term treatment plan requiring a supportive therapeutic relationship with both a general practitioner and a psychologist, along with a low grade exercise regime. Whether the diagnosis of Dr Hogg falls under the definition of a loss of a body function or of a mental or behavioural disturbance or disorder or both becomes of reduced significance because of his last report of 8 August 2018. In that, whilst he refers to widespread somatic pain/sensitisation, as well as an underlying anxiety disorder and the like, he stated that the plaintiff has made an excellent recovery since last seen in November 2015. She did report periods of pain exacerbation, but was maintaining occupational and social activity and a low grade physical activity program. A considerable part of this report was taken up with the discussion as to potential treatment during her pregnancy. Thus, however the injury is categorised, in the opinion of Dr Hogg the plaintiff has made an excellent recovery.
62 The diagnoses of Dr Lewis and Dr Entwisle are the most recent in relation to the plaintiff’s mental health. Dr Lewis diagnosed a partially remitted Post-traumatic Stress Disorder. This is very similar to Dr Entwisle’s diagnosis of a Post-traumatic Stress Disorder in partial remission, pain syndrome in partial remission and a somatic symptom disorder in remission. I accept that the plaintiff has had a Post-traumatic Stress Disorder, which is in partial remission. I appreciate that there is an even more recent report from Ms Jill Harding, clinical psychologist, who assessed the plaintiff at the request of Dr Hamilton. A specific diagnosis is not set out by Ms Harding, although she refers to some significant anxiety symptoms and some depressive symptomatology. Further, Ms Harding has stated that, once the plaintiff’s anxiety has been effectively managed, then, if she continues to experience cognitive difficulties, it would be worthwhile to reassess her. Save for the reference to anxiety, this does not take matters a great deal further. All in all, I prefer and accept the diagnosis of the injury given by Dr Lewis, examining on behalf of the plaintiff, which is quite similar to the diagnosis of Dr Entwisle, examining on behalf of the defendant.
63 The plaintiff had received some treatment from the psychologist, Ms Holmes, prior to the accident. This was during her adolescence, but whether the psychological or psychiatric state which she developed after the accident could be said to be an aggravation or acceleration of a pre-existing condition is another matter. On the basis of the available material, I am of the opinion that it is not. The plaintiff’s underlying personality and lifestyle may have rendered her more susceptible to the development of the condition now diagnosed, but that is a different matter. I am not satisfied that any anxiety state of note existed at the time of the accident and, in any event, the diagnosis which I accept is one of Post-traumatic Stress Disorder.
64 Dr Lewis expressed the opinion that the plaintiff’s psychiatric condition had stabilised. Dr Entwisle described the Post-traumatic Stress Disorder as being in partial remission. Her current treating psychologist, Ms McLisky, has stated that it is likely that she will require long-term medical, physiological and psychological support. On balance, I am prepared to accept that the plaintiff’s mental condition has stabilised and that such consequences as she does have are long-term within the meaning of the Act.
Other developments since the accident
65 The plaintiff returned to her employment with Redfig 10 days after the accident, but appears to have ceased work in November 2013. During this period, she went to the Netherlands in the course of her employment. She enrolled in a Bachelor of Arts (Psychology) course at Swinburne University in Semester 1 of 2015, undertaking a single subject. Subsequently she terminated her enrolment, as she was not able to manage the work. In late 2015 she was accepted into a Bachelor of Arts and Bachelor of Law course at Victoria University, being due to commence in early 2016, but did not undertake that course due to her poor mental health at the time.
66 The plaintiff decided to move and join her partner in New South Wales in approximately May 2016, this partner being the person whom she subsequently married and who is the father of her child. In August 2016, the plaintiff obtained a position working at a clothing store in Robina. Because of the amount of travel involved, she transferred to their new store in Byron Bay and continued to so work until September 2017. Whilst working at the clothing store, she applied for entry into a course of Bachelor of Primary Education, with a view to obtaining a qualification as a teacher. She was accepted into a course at Southern Cross University, commencing in early 2018. She travelled overseas for a period and I shall return to her travels shortly. She attempted to start her teaching degree course in early 2018, apparently doing this on-line, but found it difficult to focus and withdrew from that course after a few weeks. During mid-2018, she did some work at a candle factory, such work being on a casual basis. She worked there on and off for approximately four months during her pregnancy. Her son was born on 15 December 2018. Whilst it is not entirely clear, it would seem that, whilst working at the clothing store in Byron Bay, from June 2018 the plaintiff was also working part-time at the Northern Lights candle factory. I would refer to T24.
67 In September 2019, the plaintiff married. Her husband, who is the father of her son, works as a barista in Byron Bay. The plaintiff still sees two of the children who are the half-sisters of her former female partner and visits them when she comes to Melbourne. She no longer sees that former partner.
68 A considerable number of social media photographs, including some of the plaintiff’s wedding and travels, were placed in evidence as part of the Joint Court Book. I turn now to the plaintiff’s travels since the accident. Whilst in her affidavit of 9 August 2015 she had sworn that she went to the Netherlands for a work project prior to the accident, this was corrected in her oral evidence. She in fact went to the Netherlands for work after the accident – see T18. Whilst it is a little hard to work out from the photocopies of her passport, this trip to the Netherlands would appear to have been made in September 2013, approximately three months after the accident.
69 Thereafter, the plaintiff has been on the following post-accident overseas trips:
Bali – October 2014. The history taken by Dr Holmes was of this trip being from the end of September to early November 2014, but the plaintiff’s recollection was that it was only for a week or “a bit longer” – see T49.
India – 16 January 2015 to 13 February 2015. This seems to have been via the United Arab Emirates.
United States of America – several visits, but one appears to be from September 2014 until 13 December 2014.
United States of America – 18 April 2016 to 16 July 2016.
Lengthy trip to numerous places – 1 October 2017 to 1 February 2018. For part of the time on this trip the plaintiff was with her partner, now her husband. At other times she seems to have been on her own or with her mother. What seems to be clear from her passport is that on 30 October 2017 she was in the Bahamas. Prior to going to Peru, she spent a fortnight in Mexico from16 October 2017, apparently travelling with her mother. From 6 November to 17 November 2017, she was in Peru. She went from Peru to Costa Rica on 17 November 2017. Afterwards she was in the United States of America up to 23 November 2017 and was at least in California and New Mexico. In fact, whilst it is not entirely clear, it would seem that the plaintiff was also in the United States of America for a large part of the month of December 2017. The sequence of events whilst the plaintiff was travelling during this period is not easy to follow. From material placed on social media, it is clear that the plaintiff and her now husband were at a location in the snow on 11 December 2017. This would appear to be in California. It is also apparent that she travelled on various aeroplanes and on buses, in addition to being in a four-wheel drive vehicle at times and apparently sleeping in same. I accept that she did not visit Machu Picchu in Peru because she did not feel she could participate in the lengthy train trip and hiking which would have been involved. In summary, the travelling in late 2017 and possibly early 2018 was extensive indeed.
Indonesia (presumably Bali) – 23 October 2018 to 13 November 2018. At this stage, the plaintiff would have been in a reasonably advanced state of pregnancy.
70 As stated, in approximately May 2016 the plaintiff moved to the Byron Bay area where she lived with her partner, later marrying him, their child having been born in December 2018.
71 The plaintiff worked for the Camilla clothing store, commencing work in Robina on 1 August 2016 and then in the Byron Bay shop. In June 2018 she commenced work at Northern Lights candle factory in Alstonville in the Byron Bay area. Essentially she was putting wicks into tea lights and putting tea lights into boxes. As earlier stated, it may be that, at least for a period, the plaintiff was working part-time at the candle factory whilst also working in the clothing store. The candle factory work seems to have been for three or four hours per day and ultimately ceased before the baby was born. The plaintiff married her partner in September 2019 and there seems to have been an outdoor ceremony in Byron Bay associated with it. As at this point in time, she has not returned to work and is looking after her son.
Ruling
(a)The back injury
72 I am of the opinion that the plaintiff has failed to discharge the burden of proof in relation to her back injury. I am not persuaded that the consequences of the injury could fairly be described as being more than significant or marked and as being at least very considerable. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(i)Firstly, since the accident, the plaintiff has engaged in a particularly substantial amount of international travel. The consequences of her injury have not been of such magnitude as to prevent her from engaging in long flights, travelling by bus and driving (and sleeping) in cars. These trips commenced within three months of the accident and ended approximately five years later, when the plaintiff was well advanced in pregnancy.
(ii)The issue of the plaintiff’s credibility or the amount of information given to medical examiners also arises in relation to the issue of international travel. It may be that it was not something concerning which such examiners asked many questions, but the impression conveyed is that examiners were not provided with anything like comprehensive details. For example, Dr Entwisle, who took what was otherwise a comprehensive history, has recorded that the plaintiff had a summer holiday in 2015 and that in 2017 she travelled to South America with her now husband and at one stage travelled to Mexico on her own for two months. Dr Lewis, who provided an otherwise comprehensive history and report, has recorded that the plaintiff ceased employment at a clothing store in 2017 in order to travel to South America over a two-month period. Mr Speck, also in 2019, simply recorded that the plaintiff ceased work at Byron Bay because she and her partner wished to travel. Dr Aliashkevich has taken a history of the plaintiff working at the clothing store and then quitting to travel overseas, living in South America for two months and returning to New South Wales. Her treating psychologist, Ms McLisky, reporting in November 2019, described the plaintiff as having no present capacity for work, and also stated that the plaintiff had not been able to study at university. However, there seems to be no reference to travel. Ms Harding, who provided a clinical neuropsychological report to Dr Hamilton and having seen the plaintiff for that purpose in January 2020, has noted that the plaintiff stated that she tries not to leave her home town. This is another lengthy report, but there seems to be no reference to extensive international travel. The regime of travel in which the plaintiff has engaged appears to be inconsistent with her statement that she tries not to leave her home town. In his report of 8 August 2018, Dr Hogg, who has treated the plaintiff for several years, has recorded her move to Northern New South Wales. Admittedly, his is a comparatively brief report, but there is no reference to international travel.
The bottom line is that medical examiners do not have an accurate picture of the extent of the plaintiff’s travels and this has the capacity to interfere with the accuracy of their assessments, whether this be in relation to the plaintiff’s back injury or to her psychological or psychiatric state. A question mark as to the plaintiff’s reliability as an historian arises in this regard.
(iii)Whether or not the plaintiff’s alleged difficulties in relation to driving relate to her back injury, her mental condition or a combination of both, I am not satisfied that this is a factor of any great significance. It is also a matter in which the plaintiff’s credibility is involved. Problems with driving are referred to in both affidavits of the plaintiff. I note that she told Mr Speck that she found it difficult to continue with the original work at the clothing store because of the 45 minute drive. Dr Entwisle was told that she could drive locally. As is evidenced by the surveillance, on 31 August 2015 and 1 September 2015, she was then certainly capable of driving. On 31 August 2015, having left the rooms of Dr Krapivensky in North Caulfield, she drove to Balaclava Railway Station, picked up her then partner (whether or not she can drive is not known), then drove to her address in Hawthorn. She then drove with her partner to Camberwell shopping centre. From there she drove to a McDonald’s restaurant in Frankston and from there to Peninsula Hot Springs in Fingal, which is close to Rye. After spending some time there, she drove to a restaurant in Sorrento. Subsequently, from there she drove to a house apparently owned by her parents in Portsea. Mid-morning on 1 September, she drove to a café in the Portsea area. She then drove to Footscray West and from there to an office in Footscray. She then drove into the city area of Melbourne, where she dropped off her partner. From there she drove to Tooronga Village Shopping Centre and ultimately from there to her address in Hawthorn. What this indicates is that, by August and September 2015 the plaintiff was capable of engaging in quite an amount of driving. I would add that, on the video material, the plaintiff is seen outside the vehicle and, having driven, showing no signs of limitation of movement or distress.
(iv)Dr Hogg saw the plaintiff on several occasions in 2014 and 2015. He treated her at that time. Dr Kamale sent the plaintiff to Dr Hogg for a review on 8 August 2018. Dr Hogg, who is a specialist in anaesthesia and pain medicine, stated in his report to Dr Kamale that, “I was pleased to note an excellent recovery in the intervening period (since November 2015) …”. Dr Hogg went on to refer to a return to employment and relationship structure, and medication weaning to infrequent use of paracetamol. The plaintiff was essentially off opioids and anti-anxiety/anti-depression medication. There were periods of pain exacerbation, but no regular physiotherapy. The balance of Dr Hogg’s report is concentrated largely upon the plaintiff’s pregnancy, which, at that time, had reached the 20‑week mark. I appreciate that, in his report of 6 August 2015 and being the last report prior to that of 5 August 2018, Dr Hogg referred to the nature of the symptoms as having both somatic and psychological aspects. However, it seems to me that his observation concerning the “excellent recovery” would appear to be applicable to both.
(v)The plaintiff’s level of treatment for her organic injury, whilst quite intense for the first couple of years, seems to have dropped away quite considerably since 2015. Professor Davis, who had treated the plaintiff and seen her on a number of occasions in 2014, last saw her in February 2015. When reporting on 18 May 2015 to the plaintiff’s then solicitor, he expressed the opinion that the plaintiff had markedly improved when last seen. Professor Davis thought that she had a good prognosis, although low back pain may be an enduring problem. He has not seen her since.
In the wealth of medical material supplied, it would appear that the only reports from medical practitioners who have treated the plaintiff since 2015 are that of Dr Hogg of 8 August 2018, to which reference has been made, the brief letter of referral to him from Dr Rosie Hamilton, the plaintiff’s treating general practitioner at Mullumbimby, and her short report of 23 December 2019. The letter of referral to Dr Hogg refers to the plaintiff having had a couple of severe episodes of back pain for which she did not seek medical review and she was concerned about taking medication whilst breast feeding. The comparatively brief report from Dr Hamilton, this being dated 23 December 2019, contains a very short history of the accident. It states that the plaintiff had been a patient of Dr Hamilton since February 2018. There is a reference to the fact that the plaintiff had a complex recovery complicated by the development of Post-traumatic Stress Disorder, anxiety, depression and chronic pain. It is stated that her recovery had continued with better and worse periods and that she recently experienced a significant relapse. Dr Hamilton had referred her for “psychiatry input”. The report also contains the observation that the plaintiff has not been able to work since her accident and would not currently be fit to do so. Of course, the observation that the plaintiff has not been able to work since the accident is incorrect, as the plaintiff had two employments prior to the birth of her baby. In any event, it would seem that the plaintiff has had very little treatment of an organic nature since 2015.
Whilst treatment is not necessarily a conclusive indication as to the weight to be attached to the amount of pain being suffered, it can be of assistance. In the present case, after the accident the plaintiff commenced undergoing considerable treatment and investigation for her organic injury, but, on the available evidence, such treatment would appear to have virtually ceased. There is little or no mention of treatment during her overseas holidays and the level of treatment in Australia seems to have been very low. In his report of 8 August 2018, Dr Hogg referred to the infrequent use of paracetamol. He also noted that the plaintiff had no regular physiotherapy. In short, the level of treatment and medication in relation to the organic back condition would appear to have been very low in the last four to five years.
(vi)The plaintiff is well educated and obviously intelligent. At the time of the accident, she was employed as a project coordinator. Her work, as described to Dr Miller, occupational health consultant, involved liaising with clients, attending meetings, monitoring key performance indicators and formulating projects. He suggested that, from a physical perspective, she could work as a marketing coordinator, business development officer, project administrator and the like. In relation to these proposed occupations, Dr Aliashkevich, neurosurgeon and spinal surgeon, suggested that they appeared to be relatively sedentary options, bearing in mind their physical requirements, and would fit within the physical restriction which he considered to be necessary. Of course, the plaintiff did return to work in a clothing store and in a candle factory prior to the birth of her child. These occupations followed her move to the Byron Bay area with her new partner and a change in her lifestyle. As I understand it, she worked at the clothing store for something in the order of a year or longer. Her cessation of employment seems to have almost coincided with her lengthy overseas tour. In short, I do not accept that the organic injury to the back has rendered the plaintiff incapable of performing the type of work which she did prior to the accident.
(vii)It is also to be remembered that, for at least a period after the accident, the plaintiff seems to have looked after the four half-siblings of her former partner, Eleni. As Dr Brous reported to Dr Kamale on 12 August 2014:
“The four neglected children who are her girlfriend’s siblings have been placed in her care by DHS pending a decision regarding where they are to live …”
Dr Brous went on to say:
“Rebecca told me she had been so busy looking after them currently, that she has pushed the pain right to the back of her mind. Her mood is better … She is functioning much better overall. However she has dropped all her regular appointments with the physiotherapist, the acupuncturist, the art therapist and also the hydrotherapy.”
The plaintiff said either that she did not remember or that she disagreed with some of these statements, but they were recorded contemporaneously and in some detail by Dr Brous. Essentially, I accept them. Two of the children are twins and the plaintiff told Dr Entwisle that she often occupied the role of mother to them.
(viii)Whilst on 2 May 2019 Dr Entwisle was assessing the plaintiff from a psychiatric viewpoint, a couple of the matters recorded by him are relevant to the plaintiff’s condition generally. In relation to her mood, he quoted her as saying “I’m good”, also referring to the fact that she had strongly bonded with her child and had social contact with a number of people whom she had met in Byron Bay. He also quoted her as saying “My life is happy”. She remained physically active. She required assistance to bathe her child, but could dress and drive locally. She could vacuum and shop in small amounts. This seems to be consistent with benefits resulting from the change of lifestyle and with the observation of Dr Hogg that the plaintiff had made “an excellent recovery” and was maintaining occupational and social activity.
73 When all of the above is taken into account, it seems to me that, in regard to the back injury, the plaintiff has not satisfied the requirements of the test set out in Humphries & Anor v Poljak [1992] 2 VR 129.
(b)Severe long term mental or behavioural disturbance or disorder
74 Many of the matters discussed above in relation to the plaintiff’s impairment or loss of body function apply with equal force to the application in so far as reliance is placed upon paragraph (c) of the definition. For example, I would refer to the comment of Dr Hogg that the plaintiff had made “an excellent recovery” as at 8 August 2018. It is apparent in the sentence prior to that that Dr Hogg was referring to widespread somatic pain, but also to an underlying anxiety disorder, along with occupational, personal and social dysfunction. He also referred to her weaning to infrequent use of opioids and anti-anxiety/anti-depressant medication. In addition, he stated that the plaintiff was maintaining occupational and social activity and a low-grade physical program, but no regular physiotherapy or “psychology input”.
75 I would also refer to the observations of the two consulting psychiatrists who have seen the plaintiff in recent times for medico‑legal purposes. Dr Lewis, reporting to the plaintiff’s solicitors, diagnosed a partially remitted Post-traumatic Stress Disorder, referring to the fact that major depression had “near fully remitted”. He also referred to the fact that the plaintiff had a chronic pain syndrome. He reported the plaintiff as stating that, at Mullumbimby, she had a nice community of friends and was coping in a domestic sense, “albeit in a slightly reduced capacity”. She had a significant reduction in transport-related nightmares and had no flashbacks or intrusive memories of the accident. She was seeing a psychologist, Ms Holmes, and had made “good progress”. As earlier mentioned, her outline of her travelling seems not to have gone beyond reference to going to South America over a two-month period. It does not appear to me that Dr Lewis obtained anything like a complete description of the international travelling. It is also interesting that the plaintiff apparently stated that she believed that she could work two days per week in a retail job, a proposition with which Dr Lewis concurred. He seems to have overlooked the fact that the plaintiff had worked full-time in a clothing store for a year, although this was mentioned earlier in the report.
76 Dr Entwisle, examining on behalf of the defendant, arrived at the conclusion that the plaintiff suffered from a Post-traumatic Stress Disorder in partial remission, a pain syndrome in partial remission and a somatic symptom disorder in remission. He referred to the plaintiff as having described to him a settled life. Her Post-traumatic Stress Disorder symptoms had reduced significantly. She was not depressed at the time of the assessment. Her memory and concentration were intact. His knowledge of the plaintiff’s international travelling seems to have been confined to the plaintiff’s trip to South America with her partner, and that she had travelled to Mexico on her own for two months. The plaintiff has denied the accuracy of that latter statement, claiming that she travelled with her mother. In any event, Dr Entwisle does not seem to have obtained anything like the full history of international travel. Dr Entwisle regarded the plaintiff’s prognosis as “more than reasonable”. He concluded that the plaintiff’s accident-related injuries, being chronic pain and psychiatric symptoms with depressed and anxious mood, had severely interfered with her domestic and leisure activities for a period, but do not do so currently. He was aware that she had worked full-time in a clothing store.
77 In relation to treatment from psychologists, the plaintiff saw Ms McLisky six times between 5 June 2019 and 30 October of that year. Four of these consultations were during a period of approximately five weeks between 5 June and 9 July. Whilst stating that the plaintiff had no present capacity for work, Ms McLisky stated that she was hopeful that the plaintiff’s condition would improve and that she would continue to attend health professionals. She also observed that the plaintiff’s anxiety was exacerbated by reason of her court case. She did not know whether the plaintiff was receiving appropriate treatment. The plaintiff described various reasons for anxiety to her, including a fear that she would never be able to go to university.
78 Ms Jill Harding-Clark, clinical psychologist, reviewed the plaintiff on 11 January 2020. Whilst she took a reasonably detailed history, she does not seem to have been given any information concerning the plaintiff’s international travel, her looking after her former partner’s half-siblings, her return to work and the like. Ms Harding-Clark recommended that the plaintiff continue with clinical psychology intervention and suggested that it may be best for the plaintiff to seek a course of study until her psychological symptoms were better managed. That may help build her confidence, so that she can eventually return to university. She also suggested that the plaintiff find a university that has an excellent student support service. She also suggested that the plaintiff do such things as remove distractions, take a break from complex tasks, use memory aids and the like.
79 When all of the above is taken into account, it does not seem to me that the plaintiff has discharged the burden of proof in relation to a severe long-term mental or behavioural disturbance or disorder. Further, again matters of credit and the providing of a complete or accurate history play a role and are of significance. In addition, I would refer to the assessments made by the examining psychiatrists and the comparatively limited amount of treatment obtained in recent years. I would again refer to the very substantial amount of international travel in which the plaintiff has been able to engage.
80 In summary, the plaintiff has failed to discharge the burden of proof in relation to her application based upon paragraph (c) of the definition.
Conclusion
81 The plaintiff has failed to discharge the burden of proof. The application is dismissed. I shall hear the parties as to any further orders that are required.
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