Botte v TAC
[2013] VCC 1036
•4 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01576
| MARIO BOTTE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2, 3, 4 and 19 July and 13 August 2013 | |
DATE OF JUDGMENT: | 4 September 2013 | |
CASE MAY BE CITED AS: | Botte v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1036 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Two transport accidents – causation – credit – whether mental disturbance met serious injury test
Legislation Cited: Transport Accident Act 1986
Cases Cited:Swannellv Farmer [1999] 1 VR 29, Mobiliov Balliotis [1998] 3 VR 833
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Hore Lacey S.C. with Mr J. Harris | Maurice Blackburn Lawyers |
| For the Defendant | Mr P. Rattray QC with Mr A. Newman | Transport Accident Commission |
HER HONOUR:
Introduction
1 By originating motion filed on 5 April 2012, the plaintiff sought leave to bring proceedings for damages in respect to injury suffered as a result of a transport accident on 8 January 2008. On that date, as the plaintiff attempted to execute a right-hand turn, his vehicle was struck from behind by a truck ("the accident").[1] Evidently the vehicle was written-off. According to the plaintiff, the "force of" the collision aggravated pre-existing back injury, caused pain in his neck and upper back and injured both shoulders.
[1]Exhibit P1, Joint Court Book ("JCB"), 20
2 Following the accident, the plaintiff was transported by ambulance to the Alfred Hospital where he remained until 11 January 2008. The report from general practitioner, Dr Yiap, who examined the plaintiff on 5 February 2008 suggests that the hospital undertook extensive "investigat[ion] for pain in [the plaintiff's] head, neck and shoulders and back, and numbness in his left arm and leg and left shoulder pain".[2] These investigations included CT scans of the brain and cervical spine and MRI scan of the full spine. The interim discharge report from the hospital recorded a final diagnosis of exacerbation of chronic back pain.[3]
[2]JCB 38
[3]Exhibit D1
3 In affidavits, sworn on 12 July 2011 and 20 June 2013 respectively, the plaintiff described:
· "severe and ongoing" neck, right shoulder and mid back pain,
· restricted movement of and difficulties in using his right arm and hand, which had shown some improvement following surgery to his right shoulder at the Dandenong Hospital on 17 December 2009, a procedure the Transport Accident Commission ("TAC") had declined to cover;
· difficulty looking over his right shoulder;
· difficulty bending to tie shoelaces;
· a worsening of lower back pain since the accident;
· daily headaches ("severe and frequent headaches");
· difficulties in performing house work and personal hygiene tasks;
· depression and anxiety;
· ongoing treatment by a psychologist since November 2008 and, following worsening of his depression, by a psychiatrist since April 2009;
· following the death of his wife and carer, dependency on his daughters for his care and in the performance of daily activities;
· difficulty in crowds of people and driving long distances;
· difficulty sleeping;
· terrible nightmares most nights since the accident, often depicting accidents and violence;
· waking with feelings of anxiety and fatigue;
· multiple admissions since the accident to the Delmont Psychiatric Clinic for pain management and for treatment of depression, between 7 September to 27 September 2009, between 5 September to 17 September 2010 and between 2 June and 15 June 2012;
· a medication regime consisting of Seroquel (at night as an antidepressant and to aid sleep), Cipramil (daily in the morning), Topiramate (nightly), Saphris (nightly), Frusemide (daily in the morning), paracetamol and codeine (daily as needed), Pramin (daily), Valium (nightly) and a weekly Norspan patch.[4]
[4]Ibid, 23 to 28
4 Both before and since the accident, the plaintiff has been prescribed Nexium to manage gastric problems.
5 Relevantly, during the hearing of this application, the plaintiff presented as downcast. His posture was rigid, he walked with a slow, shuffling gait and he held his right arm to the side of his body ("You're barely able to move your right arm. Is that true?…” “Yes"[5]).
[5]TN 27
6 As a number of the medical reports and cross-examination subsequently revealed, the plaintiff claimed that since the accident, his right upper limb had been significantly impaired and that pain continued to inhibit movement and use of this limb. At hearing, having stated that his right shoulder and arm were painful, the plaintiff also agreed with the proposition that these were his main problems following the accident.[6]
[6]TN 27
7 The application was complicated by the plaintiff having been involved in a second transport accident on 18 March 2010. On that occasion, the plaintiff was driving to a medical appointment with Dr Yiap. Whilst stationary, his vehicle was struck from behind ("the second accident").[7] There was no hospital attendance following the second accident. In his first affidavit, the plaintiff deposed he attended his doctor for treatment of pain in his neck, right shoulder and upper back, as well as headaches. He said that he had been informed that he had suffered soft tissue injury and was advised to continue with the same treatment regime.[8]
[7]Ibid, 28
[8]Ibid
8 The plaintiff’s claim for the accident and the second accident were accepted by the TAC.[9]
[9]TN 99
9 The application was made pursuant to section 93 of the Transport Accident Act 1986 ("the Act"). The plaintiff must satisfy me that the injury suffered in the accident is a serious injury which exists at the date of my determination of this application for leave.[10]
[10]Swannellv Farmer [1999] 1 VR 299 at 310
10 In his Particulars of Injury dated 20 March 2013, pursuant to sub-section 93(17)(a), the plaintiff alleged serious injury, namely:[11]
[11]Exhibit D10
1. Under paragraph (a):
(a) Injury to the cervical spine, including cervical spondylosis with mild foraminal stenosis, with resultant headaches and restriction of movement, and long-term impairment;
(b) Injury to the right shoulder, with resultant pain and restriction of movement, and long-term impairment;
(c) Long term impairment or loss of bodily function to the right upper limb and cervical spine.
2. Under paragraph (c):
(a) Psychological injury, including anxiety and depression.
11 In opening the plaintiff's case, senior counsel informed the Court that the application made under paragraph (a) was confined to a neck injury and associated headaches and that the application made under paragraph (c) related to a psychiatric condition and psychological sequelae, namely: "Depression, post-traumatic stress disorder and a psychological aspect,… a chronic pain syndrome, which most of the doctors say there is no organic basis for…"[12]
[12]Transcript ("TN") 5 and 6
12 However, having also informed the Court that the application made under paragraph (a) was secondary to that made under the paragraph (c), the application under paragraph (a) was abandoned before closing submissions commenced.
13 Relevantly, sub-section 93(17) defines "serious injury" under paragraph (c) as: "severe long-term mental or severe long-term behavioural disturbance or disorder." For the purpose of this paragraph, serious injury is determined by considering the consequences of injury-related mental or behavioural disturbance or disorder. These consequences must be both long-term and severe, the latter being a word which connotes something "of stronger force" than the word "serious".[13]
[13]Mobiliov Balliotis [1998] 3 VR 833, 834-5 and 846
14 Neither of the plaintiff’s affidavits directly addressed the issue of whether, and to what extent, the second accident had caused or aggravated the plaintiff's mental state. However, through both his oral and affidavit evidence, the plaintiff did attempt to address the likely contribution of another unrelated stressor, when he deposed that he had learned to manage and accept the grief he experienced following the sudden passing of his wife on 20 June 2010.
15 The defendant contested the application on a number of fronts:
· Causation. I was asked to consider the relationship, if any, between the plaintiff’s current mental state and the accident.
· Credit. There was, in senior counsel's words "a serious credit issue to be tried".[14] The plaintiff was cross-examined in detail, among other things, about his activities depicted in a segment of film obtained on 29 May 2013 and shown to the Court and about various discrepancies in the histories recorded by doctors. One consequence of these discrepancies, so the defendant submitted, was that the reliability of some of the medical opinion had been undermined. In short, the defendant submitted that, in the past, the plaintiff had and continued to exaggerate his physical and psychological symptoms.
[14]TN 21
· Disentanglement. The defendant contended that the plaintiff was required to “disentangle” the evidence of his mental condition prior to and after the accident and before and after the second accident. This was really part of the causation argument. I accept that determination of the leave application necessitated consideration of what the evidence disclosed about the plaintiff’s mental condition before and after the supervention of each accident. However, the success of the plaintiff’s application depended on the consequences of any accident-related mental disturbance satisfying the test as described, notwithstanding the occurrence of the second accident and any other unrelated stressors which may also contribute to his mental state as at the date of hearing.
· Failure to meet the test. The defendant further contended that the consequences of any accident-related injury to the plaintiff's mental health were not severe in the sense required and did not meet the serious injury test when compared with the range of possible mental or behavioural disturbance or disorders.
16 The finalisation of the hearing of this leave application was delayed because the plaintiff was involved in a further transport accident prior to the completion of closing submissions.
The evidence
17 The plaintiff deposed to the accuracy of his two affidavits. As I have already noted, he was cross-examined at length. On 12 June 2013, his daughter (and full-time paid carer), Sandra Botte, swore an affidavit attesting to the extent to which the plaintiff required assistance in the performance of his day to day activities and his physical and psychological state since the accident. She too was cross-examined. They were both shown surveillance film obtained on 29 May 2013, although Ms Botte only viewed segments of this film, which ran for some 30 minutes in toto.
18 In addition to the affidavit material, the plaintiff tendered from the Joint Court Book multiple medical reports consisting of reports prepared by treating practitioners and medico-legal experts;[15] extracts from the clinical notes and records kept by his treating psychologist, Dr Strubel;[16] a copy of a report from his treating psychiatrist, Associate Professor Damodaran addressed to TAC and dated 31 August 2009;[17] and an extract from the psychiatrist's clinical notes dated 10 April 2010.[18]
[15]Exhibit P1
[16]Exhibit P2
[17]Exhibit P3
[18]Exhibit P4
19 The defendant tendered the extract from the discharge summary of the Alfred Hospital;[19] still photographs numbered 7 and 2, taken from the surveillance film;[20] a DVD containing the surveillance film obtained on 29 May 2013;[21] a copy of an electronically generated patient care report extracted from ambulance records, dated 8 January 2008;[22] a copy of a report prepared by Mr Roth from Mardol Medical Services Pty Ltd, dated 22 September 1989;[23] extracts from the clinical records of Dr Yiap;[24] the TAC claim form, dated 10 January 2008, which, whilst denying he had completed this or provided instructions on its content, the plaintiff nonetheless agreed had been signed by him, albeit in his words: “under duress”;[25] copies of correspondence between the plaintiff's solicitors, TAC and treating orthopaedic surgeon, Mr Nguyen, dated 25 February 2009 to 7 September 2010;[26] and the plaintiff's Particulars of Injury.[27]
[19]Exhibit D1
[20]Exhibits D2 and D5
[21]Exhibit D3
[22]Exhibit D4
[23]Exhibit D6
[24]Exhibit D7
[25]Exhibit D8 and TN 82-84
[26]Exhibit D9
[27]Exhibit D10
20 As to the reports contained in Exhibit P1, I note that at hearing the defendant indicated particular reliance on the report of treating neurologist, Dr Kempster, dated 1 October 2008, addressed to the general practitioner; the report of Mr Nguyen, dated 16 December 2008, addressed to the general practitioner; the three reports submitted by Dr Strubel; and the reports of medico-legal specialists, psychiatrist, Dr Ingram and orthopaedic surgeon, Mr Simm.
Background
21 The plaintiff is 54 years of age. Since his wife's death he has continued to reside with his two daughters, who are 25 and 18 years of age respectively. As mentioned, his daughter, Sandra, is his carer.
22 The plaintiff was born in Mauritius. After completing his formal education to Year 12 level, the plaintiff worked for some years for an import/export company. Having migrated to Australia in mid-1987, the plaintiff was variously employed by the Public Transport Corporation as a tram conductor and as an industrial cleaner. During this employment, he sustained injury to his lower back in 1994 and again in 1996.
23 According to the plaintiff, despite extensive treatment and rehabilitation over several years, he never returned to employment. He has been in receipt of a disability support pension since 1996.
Pre-existing conditions and treatment
24 I note that, prior to the accident, in addition to treatment of the earlier back injury and a left shoulder injury, in 2006, the plaintiff underwent a nephrectomy to treat kidney cancer and was, he deposed, treated for other medical conditions including a peptic ulcer and diabetes.
25 In his first affidavit, the plaintiff deposed that, from time to time, prior to the accident, he had suffered from neck and shoulder pain, although investigations (a CT scan of the cervical spine in or about 2003 and an ultrasound of his left shoulder in or about November 2002) had reported normal findings in respect to both his neck and left shoulder. The plaintiff also deposed that, at the time of the accident, he had not been receiving active treatment of his lower back condition.
26 At hearing, the plaintiff indicated that he was unable to recall treatment for any neck injury in the past and, whilst acknowledging a problem with his left shoulder, denied any previous right shoulder or right arm problem or treatment for same. Moreover, he denied any treatment for his back condition or “… shoulder for a long time prior to the accident"… "Or neck prior to the accident," adding that, prior to the accident he had not been "on any painkillers or medication for a very long time".[28]
[28]TN 74
27 A medical report obtained in December 1989 in respect to the plaintiff's earlier workplace injuries[29] and the clinical records of the treating general practitioner, Dr Yiap, to which the plaintiff was taken during cross-examination,[30] paint a different picture.
[29]Exhibit D6 and TN 74
[30]Exhibit D7 and TN 74 to 81
28 Among other things, the medical report of surgeon, Mr Roth, recorded complaint of pain in the plaintiff's neck and interscapular and lumbar regions of the spine, an inability to properly elevate his right upper limb and a lack of strength in this limb. Examination apparently revealed restrictions in flexion and abduction at the right shoulder to approximately 3/4 of the normal range of movement. No abnormality was detected in the plaintiff's left shoulder.
29 This matter, the defendant submitted, was relevant to my assessment of the plaintiff's credit. Even with some real allowance for the passage of time, I have accepted the thrust of defendant’s submission,[31] that during cross-examination, the plaintiff had been selective in his recall. He readily recalled matters recorded by this doctor about his lower back injury and symptoms affecting his hands and feet yet, despite being reminded of the record concerning this, the plaintiff steadfastly resisted any suggestion that there had also been a problem with his right upper limb.
[31]TN 153-154
30 Cross-examination directed to a number of entries made between 14 June 2005 and 10 September 2010 in Dr Yiap's clinical records did, however, eventually lead to acceptance that, as recorded:
· on 14 June 2005, the plaintiff had complained of neck pain radiating to the plaintiff left hand "since 1988". This had prompted a CT investigation of the plaintiff neck and prescription of medication, including Panadeine Forte;
· in August/September 2006, the plaintiff had complained of severe lower back pain mainly in the left buttock and tenderness over the sacroiliac joint. On this occasion, it was recorded that the plaintiff was on "stronger painkillers" and that he had already attended hospital where, the plaintiff agreed, he had been given OxyContin;
· on 21 September 2006, the plaintiff had complained of right hip and severe back pain, in the treatment of which the plaintiff was prescribed Panadeine Forte and morphine; and
· on 10 September 2007, some months before the accident, the plaintiff had complained of back pain, worsened by walking, with radiation down both legs, in the treatment of which the plaintiff was taking daily doses Endone.
31 Again, it would be unrealistic to expect an individual to recall in any particular detail medical treatment received many years earlier. However, the plaintiff’s willingness to make positive and, as it turned out unsustainable, assertions about his medical status, treatment and the medications prescribed in the period prior to the accident, at the very least, indicated that his evidence and the reports given by him to doctors required very careful scrutiny.
32 The defendant also relied on the report addressed to the Accident Compensation Conciliation Service by Dr Morrissey in July 2004 which demonstrated that in the past, this doctor had recorded her concern that the plaintiff's symptoms and signs were exaggerated:
"In summary, the patient appears to be suffering from some pain and restriction of movement in the lower back and left shoulder, but it was difficult to assess to what extent, as his symptoms and signs appeared to be exaggerated during the examination.…"[32]
[32]JCB 37
33 This is not to deny that the plaintiff had suffered compensable work-related back injury in the past. However, according to his daughter, before the accident the plaintiff’s pre-existing back condition had not preventing him from enjoying his life, which included going out with friends, attending dinner parties and cooking, managing his own personal care needs unassisted and contributing to domestic duties.[33]
[33]JCB 30-32
34 As it turned out, none of the evidence before me indicated that pre-accident the plaintiff had suffered or had been treated for any primary or secondary mental health condition.
35 I will discuss the various concerns articulated in the medical reports and, where appropriate, the explanation given by the plaintiff for any apparent discrepancies, shortly.
Physical injury: Treatment and diagnoses
The accident
36 The four reports submitted by Dr Yiap, together with various attachments, provide a good overview of the plaintiff's treatment and diagnoses subsequent to his first attendance on his general practitioner on 5 February 2008.
37 According to the first of these, dated 3 February 2009,[34] since the accident, the plaintiff had complained to his general practitioner of chronic headaches, pain in his neck, shoulders and back, chronic lethargy and poor sleep and he had been treated with various medications and physiotherapy.
[34]Ibid, 38-49
38 It is convenient to discuss any physical injury diagnosed and the treatment received first.
39 As to any complaint of right shoulder symptoms or injury, Dr Yiap said that, prior to documenting this on 3 October 2008, he had found no record of pre-existing right shoulder injury relevant to the plaintiff's current injury ("The paper records documented on 26 May 1996 an isolated entry of pain in the right shoulder for 4 days with the diagnosis of rotator cuff tendinitis by Dr Glenton White with no subsequent sequelae"[35]).
[35]ibid, 55
40 However, the report from physiotherapist, Yan Zelener, by whom the plaintiff was treated over an 18 month period between 8 February 2008 and 7 December 2009,[36] indicates that, within a month of the accident, the plaintiff presented for treatment of accident-related pain. His main complaints included daily headaches, bilateral neck pain (more pronounce on the right-hand side), right upper and mid thoracic pain and right shoulder pain.
[36]Ibid, 107-109
41 It appears that the focus of concern was on symptoms of the plaintiff's neck and thoracic spine and to a lesser degree on his right arm movements ("He had nearly 3/4 available range of motion in his shoulder, painful in all directions. There was tenderness over his rotator cuff and subacromial bursa. There was tightness in his posterior cuff and pectoral muscles"[37]).
[37]Ibid 108
42 The right shoulder pain, the physiotherapist said, had worsened in the months prior to a reported diagnosis of subacromial bursitis in early October 2008. An ultrasound guided cortisone injection a week later did not improve the plaintiff's symptoms and, in June 2009, he underwent a hydrodilatation procedure after which he was weaned off physiotherapy treatment.
43 In his report, the physiotherapist indicates that, after the plaintiff's solicitors sought a report, he contacted the plaintiff and arranged to review his condition. On 20 October 2010, Mr Zelener reported that he had been advised by the plaintiff that:
· following manipulation under anaesthetic and subacromial decompression in December 2009, he had felt better;
· he had been involved in the second accident;
· his condition had "markedly deteriorated" following the second accident and he was experiencing a lot of pain in his neck and right shoulder again.
44 Reassessment of the movement in the plaintiff's neck and right shoulder had, the physiotherapist said, produced "very poor" results ("… His shoulder flexion and abduction were limited to 25°, and there was minimal external rotation and hand behind back"[38]). This evidence suggests that, despite experiencing some improvement, following the second accident, the limited range of motion in the right shoulder was probably similar to that with which the plaintiff first presented after the accident.
[38]Ibid, 109
45 This evidence also suggests that any delay in the plaintiff reporting right shoulder symptoms to Dr Yiap was probably because this condition had not been the main focus of plaintiff's complaints or treatment before 3 October 2008, after which ultrasound investigation revealed likely subacromial bursitis. The plaintiff’s evidence was that ultrasound guided steroid injection to his right shoulder on 13 October 2008 had not resolved his right shoulder symptoms.[39]
[39]Ibid, 110-111
46 Material attached to Dr Yiap's first report to TAC contained correspondence from other treating specialists, namely, from neurologist, Dr Kempster, to whom the plaintiff was referred in October 2008 for assessment of chronic pain[40] and from specialist in the treatment of shoulder injury, orthopaedic surgeon, Mr Nguyen, to whom the plaintiff was referred in December 2008 for assessment of persistent right shoulder pain.[41]
[40]Ibid, 47
[41]Ibid, 48-49
47 Dr Kempster's assessment was directed to the plaintiff's neck and right shoulder pain and the complaint of daily occipital headaches. At the time, Dr Kempster was clearly concerned about the amount of analgesic medications (these included Digesic, Panadeine Forte, Endone and OxyContin and the use of an analgesic patch) used by the plaintiff along with an anti-anxiety medication, Antenex.
48 On 21 October 2008, Dr Kempster’s advised the general practitioner that the accident had caused soft tissue injuries, which he believed had led to some chronic regional post-traumatic pain. However, the headaches reported by the plaintiff were, Dr Kempster added, probably caused by a combination of scalp muscle tension and a cervicogenic muscular component.
49 In addition to ongoing physiotherapy, the neurologist recommended that the plaintiff trial a small dose of tricyclic medication, Amitriptyline (Endep), and take steps to reduce his reliance on narcotic analgesic medication and minor tranquillisers. In short, as the defendant submitted, the neurologist had found little in the way of pathology to account for the plaintiff's symptoms.
50 In his first report to the general practitioner, dated 16 December 2008, among other things, Mr Nguyen questioned the discrepancy he found between the plaintiff's right shoulder symptoms and the suggested pathology of subacromial bursitis ("His symptoms appear to outweigh the suggested pathology of subacromial bursitis"[42]). At his request, MRI investigation was obtained on 19 December 2008. This identified "an avulsion of the glenohumeral ligaments from the humeral attachment" and "swelling of the subscapularis and supraspinatus tendons".[43]
[42]Ibid, 48
[43]Ibid, 49
51 On 12 January 2009, the surgeon again felt constrained to record his concern about an apparent discrepancy between the plaintiff's "excessive symptoms" and the "pathological findings."[44]
[44]Ibid
52 Mr Nguyen next arranged for an MRI scan to exclude any neck pathology, the results of which, as his correspondence addressed to the plaintiff's solicitors on 7 September 2010 confirmed, had not shown significant findings in respect to the cervical spine.[45]
[45]Exhibit D9
53 In summary, when the general practitioner reported to TAC on 3 February 2009, investigations additional to those undertaken by the hospital had revealed pre-existing degenerative changes in the plaintiff's neck and spine and an ultrasound of the plaintiff’s right shoulder had indicated likely subacromial bursitis. The reported right shoulder symptoms had not been improved by the steroid injection. However, the physiotherapist, the general practitioner and the examining specialists all appear to have accepted a relationship between the accident and the pathology revealed by the ultrasound, although the orthopaedic surgeon also believed that the plaintiff's symptoms (diffuse tenderness over the anterior shoulder with tenderness and muscle spasm along the medial border of the right scapula and restricted range of movement due to severe pain[46]) were disproportionate to this pathology and to the further (unrelated) pathology revealed by the MRI scan on 19 December 2008.
[46]JCB 48
54 In February 2009, Dr Yiap notified TAC that the plaintiff was suffering from chronic pain in his neck, back and right shoulder (for which the doctor said the plaintiff was awaiting surgery and a decision from TAC on funding).
55 When he reviewed the plaintiff for the last time on 22 May 2009, Mr Nguyen cautioned against surgery. He recommended that the general practitioner refer the plaintiff to a pain specialist.
56 During this period, in a report dated 29 May 2009, another physiotherapist, Mr Flanaghan, who assessed the plaintiff at the request of TAC, also emphasised the presence of non-organic causes for the plaintiff's signs and symptoms, when he informed the defendant that the plaintiff had: "… marked central pain phenomenon which has had a severe effect on his movements so much so that he refuses to move his right shoulder at all and has very little movement of the cervical spine both of which lead to limited function and inability to engage in any meaningful activities of daily living".[47]
[47]Ibid, 150
57 This was evidence on which the plaintiff nonetheless relied because, as submitted, it pointed to there being a functional and non-organic basis for the marked restriction in the plaintiff’s neck and right upper limb movements prior to the second accident.
58 It is clear from Mr Nguyen’s correspondence, addressed to either the general practitioner in May 2009 and, more recently to the plaintiff's solicitors in September 2010 (without re-examination), that in his opinion:[48]
[48]Exhibit D9, correspondence dated 22 May 2009 and 7 September 2010
· the underlying cause of the plaintiff's right shoulder symptoms, namely increased pain, had been unclear, although the surgeon could not exclude the possibility that nerve or soft tissue injury was responsible for the complaints of increasing pain in the plaintiff's shoulder, rather than pathology within the shoulder;
· the pathology revealed by MRI scan had not been caused by the accident, because the HAGL lesion injury tended to occur in people with a history of shoulder dislocations. In this case, had this injury occurred at the time of the accident, it would have been evident from the investigations performed;[49]
· the decision by TAC to deny liability for the right shoulder condition and funding for shoulder surgery, because the condition was unrelated to the accident, was justified.
[49]Orthopaedic surgeon, Mr Simm, also rejected any connection between this pathology and the accident, JCB 217
59 As we now know, notwithstanding TAC’s rejection of the claim made in respect to the plaintiff's right shoulder, on 17 December 2009, he elected to undergo a procedure at the Dandenong Hospital involving decompression, injection and manipulation of the right shoulder. It appears that Dr Yiap was also informed by the plaintiff that this procedure had improved his right shoulder pain until the occurrence of the second accident.[50] I did not, however, understand this evidence to mean that the plaintiff had been free of right shoulder pain and symptoms before the intervention of the second accident.
[50]Ibid, 51
60 In his next report dated 7 February 2011, Dr Yiap expressed his view that the pathology in the plaintiff's right shoulder, as revealed on MRI scan obtained by Mr Nguyen in December 2008, had been caused by the accident. This advice was probably, at least in part, due to a mistaken belief by the general practitioner that the orthopaedic surgeon had accepted that there was a causal relationship between this pathology and the accident.[51]
[51]Exhibit P1, 54
61 Nevertheless, having regard to the evidence summarised above, I was satisfied that the plaintiff probably suffered soft tissue injury as a result of the accident. This may also account for the subacrominal bursitis condition diagnosed in October 2008. However, based on particularly the orthopaedic surgeon’s evidence, I was not satisfied that any physical injury explained the further pathology identified by MRI scans in late December 2008 or the extensive and increasingly severe right shoulder (or neck) symptoms of which the plaintiff complained prior to undergoing the procedure at the Dandenong Hospital. Moreover, accepting as I have Mr Nguyen’s evidence, it is unlikely that the unrelated pathology fully explained the symptoms noted.
The second accident
62 On the date of the second accident, the plaintiff presented to Dr Yiap complaining of neck, right shoulder and thoracolumbar spine pain as well as headaches. As mentioned, Dr Yiap diagnosed soft tissue injury and advised the plaintiff to continue with the same treatment regime.
63 Nevertheless, his complaint of neck and shoulder pain prompted further investigation of the plaintiff’s neck, x-ray in March 2010 and CT scan in October 2010, the results of which, Dr Yiap reported, were consistent with age related changes ("The results were consistent with age related changes are not attributable to an acute injury"[52] and "This report… essentially demonstrates no significant change to the previous CT scan taken on 29 October 2010"[53]).
[52]Ibid, 51
[53]Ibid, 58
64 The defendant relied on a later report submitted by Dr Yiap to the plaintiff's solicitors, dated 24 July 2012, in which the doctor pressed a further argument in favour of TAC accepting liability for the right shoulder injury. He said:
"… it is noted that Mr Botte stated that his right shoulder pain improved after surgery in December 2009 but complained of right shoulder pain that got worse after the car accident on 18 March 2010… Liability for his right shoulder injury should be accepted on the basis of the second car accident, even if refused on the first as there is a causal relationship and was clearly documented in my records (sic)."[54]
[54]Ibid, 62
65 If, as postulated by Dr Yiap, the plaintiff’s right shoulder pain had been worsened by soft tissue injury suffered as a result of the second accident, the consequences, if any, of this further injury cannot be ascribed to the accident.
66 However, as far as I can tell, apart from the procedures performed up to and including December 2009 and radiological investigation of the plaintiff’s neck following the second accident (repeated in April 2012), the plaintiff has not been referred for or received further specialist treatment for his various physical complaints including right shoulder injury ("Since the second accident I haven't seen anybody yet. I'm sick and tired of being poked and probed and everything, you know, but I have got to go and see Mr Nguyen again for the shoulder and see what is happening in there again because…"[55]).
[55]TN 89
67 All of these matters suggest that mostly non-organic factors account for the complaints of chronic pain, particularly as it affects the right upper limb.
68 As is evident from each of the three reports submitted by Dr Yiap between 7 February 2011 and 11 June 2013, the plaintiff has continued to report chronic pain affecting predominantly his neck, right shoulder and back and headaches as well as significant psychological symptoms.
69 For instance:
· in February 2011, the general practitioner reported that: "Mr Botte has had chronic pain predominantly now in his neck, right shoulder, back and headaches… The lack of improvement in chronic pain with treatment so far indicates a poor prognosis especially with compensation and legal proceedings in process…" He diagnosed: "Chronic pain syndrome manifested by pain in the neck, back, right shoulder, right elbow and right ankle as well is headaches" and "Depression secondary to chronic pain and post traumatic stress";[56]
[56]JCB 53-55
· in July 2012 the general practitioner reported that the plaintiff had "not made any significant progress. He continues to complain of the same symptoms of chronic pain and depression…";[57]
[57]Ibid, 57
· in June 2013, the general practitioner reported as follows –
Ø ongoing complaint of chronic pain and severe depression;
Ø that following assessment at the Pain Management unit of the Victorian Rehabilitation Centre on 29 April 2013, the plaintiff had been invited to engage in an introductory pain management program;
Ø the lack of improvement in the plaintiff's chronic pain and depression continued to indicate a poor prognosis;
Ø that other factors were also contributing to the plaintiff's mental state and impeding recovery ("His depression is also contributed to by the sudden death of his wife in 2010. His overall health status is made worse by his poor diabetic control, smoking, lack of exercise and renal impairment. His dependence on his daughters and his catastrophic view of his chronic pain is a significant impediment to his recovery as all investigations do not support any significant organic pathology. This is of course complicated by compensation issues… Mr Botte will require ongoing psychiatric and medical treatment indefinitely as his condition is not likely to improve, given the lack of response to treatment over several years. Hopefully his psychiatric state will improve once compensation issues have been settled” [58]).
Medico-legal evidence relating to physical injury
[58]Ibid, 69
70 In addition to the report obtained by TAC from physiotherapist, Mr Flanagan in May 2009, to which I have already referred, the medico-legal evidence concerning the plaintiff's physical injury comprises two reports obtained on behalf of the plaintiff, namely reports from orthopaedic surgeons, Mr O'Brien and Mr Simm, dated 21 January 2011 and 16 May 2013 respectively.
71 On examination, both specialists found evidence of chronic pain syndrome, although Mr Simm did advert to the possibility that there was pathology that accounted for some of the plaintiff's symptoms, particularly those relating to his neck and spine.
72 In 2011, Mr O'Brien made the following relevant observations:[59]
[59]JCB 187-192
"In March of 2010 Mr Botte stated he was again the driver of a car wearing a seatbelt which were stationary when it was struck from behind. Indeed the patient stated at the time he was on his way to see his psychologist. The patient indicated the severity of the impact resulted in his car being written off. The patient did however state that he was not taken to hospital on this occasion, however he reported significant increase in the severity of his right shoulder pain which subsequently radiated to the right elbow. In addition the patient stated he experienced an exacerbation of neck pain associate with severe headaches over the occiput and top of his head.…
…Physical examination demonstrates extensive restriction of all movements of the cervical, thoracic and lumbar spine in addition to gross restriction of movement of the right shoulder. These subjective signs indeed are extremely variable indicating the presence of a substantial and non-organic component which is influencing the clinical course. Furthermore I could not find any clear objective evidence of major musculoskeletal pathology… Thus it would now appear that as a result of the January 2008 accident this patient has described an increasing range of symptoms without physical signs to define clear pathology but with physical signs clearly indicating the presence of a major non-organic component to the clinical course. I would therefore consider that this patient now demonstrate a chronic pain syndrome and if one is to consider further the history of this may have been adversely affected by the second described accident in March of 2010…
The prognosis here is poor as this patient now has well entrenched chronic pain which will not improve."
73 Mr O’Brien clearly viewed the accident as the trigger for and main contributor to the chronic pain syndrome.
74 Mr Simm examined the plaintiff on 16 May 2013, less than two weeks before the film was obtained. He reported as follows:[60]
[60]Ibid, 211-219
· the range of movement of the plaintiff's cervical spine was variable and observed to be better when he was distracted (this was certainly evident when filmed some 10 days later);
· there was no wasting in the right shoulder. However, the plaintiff had presented with marked restriction of right shoulder movement with complaint of severe pain on all movements;
· rotation of the right shoulder had to be assessed with the plaintiff's arm by his side as he seemed unable to lift the arm away from the body to assess rotation in the recommended way: "He resisted… attempts to gently passively move the right shoulder and complained of severe pain when the shoulder was moved. It was not possible to undertake any of the special test for stability, rotator cuff impingement, rotator cuff integrity or other pathology…";
· the accident had caused an acceleration extension injury to the plaintiff's cervical spine with the development of a whiplash syndrome with persistent pain in the cervical, thoracic and lumbar regions of the spine;
· the accident possibly caused a soft tissue injury to the right shoulder, although he too rejected any suggestion that the changes depicted in the MRI scans were related to the accident;
· the accident caused soft tissue injury to the thoracic spine with localised symptoms in this region and to the lumbar spine with aggravation of a chronic lumbar injury;
· the persistent symptoms may be related in part to unresolved aggravation of the degenerative changes revealed by the investigations of the cervical spine and lumbar spine;
· there were features of a chronic adverse pain response;
· the second accident involved an acceleration extension injury to the plaintiff's neck and spine with severe symptomatic exacerbation of his injuries;
· the plaintiff's severe pain response has been associated with withdrawal of use of his dominant right upper limb and marked limitation on his general level of activity and, as a result, the plaintiff required a high level of personal and domestic assistance currently provided by his daughters (this observation is supported by the unchallenged evidence of the plaintiff’s daughter in which she described the plaintiff’s ongoing care needs);
· the plaintiff's severe pain response and dissociated psychological disturbance have impacted greatly on social, domestic and recreational activities.
75 Based on the evidence summarised so far, significant impairment of the plaintiff's right upper limb due to pain had been evident since the accident. However, this and the level and severity of plaintiff’s pain response to any physical injury suffered in either accident was probably largely due to non-organic factors.
76 Before summarising the evidence of any mental disturbance caused by any physical injury suffered in or by the circumstances of one or both accidents, it is convenient to consider, firstly, the plaintiff’s evidence concerning the function of his right upper limb and neck and, secondly, the content of the film.
77 In his affidavits, the plaintiff variously deposed that his right shoulder was sore on extension or with elevation above shoulder height, lifting was restricted to items weighing a few kilograms, he tried to use his left hand more often because his right hand felt unstable and he had difficulties using his right hand and arm and looking over his right shoulder.[61]
[61]JCB 24 and 27
78 Preparatory to showing the film, the plaintiff was cross-examined generally about his activities and, more particularly, about his ability to move his right arm and shoulder.
79 The plaintiff agreed with a number of propositions to the effect that:
· he could barely move his right arm;[62]
[62] TN 27
· he could not reach his head or mouth with his right hand,[63] look over his right shoulder[64] or stand or walk beyond 10 or 15 minutes;[65]
[63]TN 27
[64]TN 40-41
[65]TN 28
· the strength of his grip in his right hand was considerably less than in his left hand (“Yes, as tested, yes”[66]);
[66]TN 41
· he had "very great restriction of movement" of his right shoulder and arm;[67]
[67]TN 28
· he had shown Mr Simm that he had marked restrictions of his right shoulder and severe pain on all movement and that he could not move his arm away from his side (as demonstrated in Court);[68]
[68]TN 39-40
· his right shoulder had been improved by the procedure performed in December 2009 ("Yes, it was much better than it was before");[69]
[69]TN 28
· in April 2013, he told the Victorian Rehabilitation Centre that pain limited use of his right arm and he avoided activity that might increase pain;[70]
[70]TN 29
· he told a number of doctors that he didn't garden, which in Court he indicated included mowing the lawn and trimming the edges;[71]
[71]TN 30
· ongoing problems with his right shoulder prevented him from whipper snipping and mowing the lawn, although the plaintiff also said that when visited by TAC’s occupational therapist, he and his daughters had been urged to cut the grass. Against his better judgment, he had agreed to let his daughters do this using his gardening equipment. However, the plaintiff said he had been obliged to step in when they tried and were unable to use the whipper snipper. He had also been obliged to show one daughter how to use the lawnmower to cut the edges. In short, before the film had been shown, the plaintiff claimed that when filmed he was helping and supervising his daughters, who were gardening and he was, at the time, in pain and struggling (under cross-examination[72] his daughter confirmed that the plaintiff had been “forced out of bed” that day to help her and her sister in the garden);[73]
[72]TN 107
[73]TN 34-35 and 41-44
· in February 2013, he had told the occupational therapist that he had not attempted to mow his lawn since before the accident;[74]
[74]TN 42
· 29 May 2013, the date of the film, was the first date he had performed any whipper snipping (and by inference any gardening including mowing), for which TAC had previously paid (under cross-examination[75] his daughter confirmed that the plaintiff had not performed these activities since the accident);[76]
[75]TN 106-108
[76]TN 43 and
· he owned a four-stroke rover mower, which is started with a pull string, as is the whipper snipper;[77]
· he had already seen the film (possibly two weeks prior to the hearing).
[77]TN 43-44
80 In cross-examination, before the film was shown to the Court, the following exchange occurred:[78]
[78]TN 41-42
"If what you told Mr Simm was right that you had no power in your right hand and you couldn't move your right shoulder or your right arm, it would be impossible for you to do whipper snipping, wouldn't it? – – – Not necessarily, because if you look on the video and you look at my posture and look what I was doing you would see clearly that my head was moving around, my body was rigid, I was holding the whipper snipper with my left hand, my head was close to my body and my finger only was on the trigger. So I wasn't putting any weight on my right arm or shoulder at all.
…. And the manoeuvre of the whipper snipper was done with the left hand, that clearly shows on the video. I stopped many times because I was getting tired and videos after the half an hour and that job takes only 45 minutes to do, which means I was troubling to do it, as it shows clearly on the video.
What about mowing the lawn? – – – The mowing of the lawn I did only the edge because it's quite dangerous because there's a drop because my daughter has never used the lawnmower. I did it with one hand and she did the centre of the median strip, and that was it. The more…"
81 The plaintiff denied starting the mower on 29 May 2013 (his daughter Sandra did), although he agreed that he had started the whipper snipper, albeit by pulling the rope with his left hand.[79]
The film
[79]TN 44
82 After viewing the film in Court, the plaintiff agreed that it depicted him using the whipper snipper and mowing the lawn. He also agreed that he was seen to move his right arm to his face. On this occasion, the plaintiff sought to distinguish this action from one where a person was able to move their whole arm away from their body in the process of eating.[80]
[80]TN 45-47
83 In Court, the plaintiff demonstrated that he was able to move his hand to his face by flexing his elbow but without moving his arm away from his body.
84 The plaintiff denied any voluntary movement of his shoulder, yet claimed that if he needed to scratch under his arm, he could forcibly move his right shoulder, albeit with pain.[81]
[81]TN 52-54 and 67
85 Despite his many denials, I was satisfied, among other things, that the plaintiff was seen on film (and in the stills taken from this film):
· Using his right hand (not his left hand as claimed by the plaintiff and as at first suggested by his daughter when giving her oral evidence) to start the whipper snipper and, at the time, the plaintiff’s right arm was at or above the level of his shoulder.[82] As it turned out, on the second day of cross-examination, after segments of the film were replayed, the plaintiff conceded that he had started the whipper snipper using his right arm, although he sought to avoid the implications of this concession by suggesting that the action performed really only involved a light flick or jerk of his right arm, namely his right wrist;[83]
[82]Exhibit D2 and TN 45-50
[83]TN 66
· taking the weight of the whipper snipper in both hands;[84]
[84]TN 51
· raising and moving his right elbow away from his body without evincing any sign that these movements were productive of pain;[85]
· looking over his right shoulder without, as he suggested, turning his body at the same time.[86]
[85]TN 67
[86]TN 67
86 As a witness the plaintiff was clearly reluctant to acknowledge any matters he felt could detract from his claim. The strong impression I had was that, when pressed during cross-examination about any discrepancy between movements as depicted by the film and restricted movement of particularly his right upper limb and neck, either during medical examinations or at hearing, the plaintiff tailored his evidence to avoid conceding matters he perceived may be detrimental to his claim. His evidence in this regard was unconvincing and suggested a lack of candour.
87 One particularly graphic example involved the plaintiff's evidence in which he recalled that he had raised his arm and elbow as an involuntary and painful response to being off-balance.[87] As far as I could tell, on this and any of the other occasions the plaintiff was seen moving or raising his right arm and elbow, there was no sign of loss of balance.
[87]TN 56 and 68
88 The plaintiff's actions seen on film, nonetheless depicted a man with a somewhat rigid posture who mostly moved in a very slow and guarded fashion. Moreover, his daughter had supported her father’s evidence by confirming that he had struggled that day after being pressed to help her and her sister clean up the garden.
89 This film was not shown to or commented on by any of the doctors.
90 The issue concerning the plaintiff’s credit complicated what was already a complex case, but one where there was strong evidence from both treating and medico-legal specialists suggesting a likely significant and persistent psychological sequelae to the accident, with a likely functional component affecting particularly the right upper limb.
91 Accordingly, my concern with the plaintiff's credit did not dispose of the question of whether there was other credible and reliable evidence of long-term mental disturbance triggered by the accident with consequences that are, objectively speaking, severe. As my discussion of particularly the evidence of the treating specialists and of psychiatrist, Dr Weissman demonstrates, any evidence of lack of candour or discrepancy between the use of his right upper limb in the film and the limitations with which he presented during medical examination probably does not adequately explain his long-standing mental disturbance or the severity of symptoms that have necessitated three admissions to a psychiatric facility to date and raised ongoing concern about the plaintiff’s risk of suicide.
Mental injury – Treatment and diagnoses
The accident
92 The evidence shows that, by November 2008, the general practitioner had placed the plaintiff on antidepressant medication (Cymbalta) and had referred him to psychologist, Dr Strubel, for treatment of depression secondary to chronic pain.[88]
[88]Ibid, 38-39
93 According to the plaintiff, until he retired in June 2013, this psychologist provided regular counselling and therapy, more recently on a fortnightly basis. At hearing, the plaintiff said that he continued to receive psychological treatment from another psychologist, Dr Schroeder, for which TAC also paid.
94 All of Dr Strubel’s reports addressed to the plaintiff's solicitors and dated 20 February 2011, 25 July 2012 and 17 April 2013 respectively, were written after the second accident.[89]
[89]Ibid, 113 – 128
95 Extracts taken from his handwritten clinical notes and records in the period between 18 and November 2008 and 1 February 2010 were also tendered.[90] As such, this additional material provided some better understanding of the symptoms reported by the plaintiff and any diagnosis and treatment received prior to the advent of the second accident.
[90]Exhibit P2
96 Dr Strubel obtained histories relating to both accidents. In cross-examination, the plaintiff agreed that he told Dr Strubel that the second accident had:
· involved a rear end collision;
· led to his vehicle being written-off;
· made his symptoms "infinitely worse";
· exacerbated or made worse his depression, post-traumatic stress disorder and chronic pain disorder.
97 This and other evidence of a reported worsening of the plaintiff's symptoms, coupled with the evidence of his daughter, who under cross-examination agreed that her father's care needs had increased and his condition had worsened following the second accident ("… It made it worse for him, much worse"[91]), suggest that any mental disturbance caused by the accident (or secondary to any physical injury suffered) probably had been exacerbated by the second accident.
[91]TN 103
98 In his first report dated 20 February 2011, Dr Strubel diagnosed Chronic Adjustment Disorder with mixed anxiety and major depression, Post Traumatic Stress Disorder and Chronic Pain Disorder within the context of the plaintiff's claimed injuries. As of April 2013, he noted that the plaintiff's physical and psychological/psychiatric conditions severely restricted his activities of daily living, quality and enjoyment of life, he deemed the plaintiff psychologically incapacitated for all types of work and he recommended ongoing psychological and psychiatric help.
99 In each of Dr Strubel’s reports, he attributed the plaintiff’s psychological condition to injury suffered in both accidents, although initially, the psychologist also made some allowance for an unresolved grief reaction to the unexpected death of the plaintiff's wife in June 2010.[92]
[92]JCB 116-117, 122 and 126
100 The defendant submitted, correctly as it turned out, that none of this material indicated the psychologist's opinion on the extent to which the accident or the second accident contributed to the plaintiff's current mental state.
101 If anything, the psychologist appeared to emphasise the role of the second accident by informing the plaintiff’s solicitor in February 2011 that: “The motor vehicle accidents, especially the most recent one, have completely altered Mr Botte’ life…”[93] This, however, is not the same as reporting that the mental disturbance triggered by the accident and the consequences of this had been overtaken by psychological injury suffered in the second accident.
[93]Ibid, 118
102 I have, however, accepted the defendant’s submission that the Court cannot (and should not) speculate about what this treating specialist may have said had he been asked to apportion responsibility for the plaintiff's current mental disturbance to one or other accident or as between both accidents.
103 The extracts from his clinical notes and the records, nonetheless, shed some light on this issue because they show that, until shortly prior to the second accident, the plaintiff was being treated for significant symptoms relating to depression and to post-traumatic stress. For instance, between December 2008 and 1 February 2010 the records kept by the psychologist record the following:[94]
[94]Exhibit P2
· the results of a questionnaire completed by the plaintiff on 16 December 2008 which indicated to the psychologist that the plaintiff was suffering from "severe depression";
· on 23 December 2008, the plaintiff reported post traumatic stress symptoms, namely, flashbacks, exaggerated startle response, hypervigilance, a sense of a foreshortened future, nightmares and night terrors, a reluctance to talk about the accident, avoidance of the scene of the accident. On this occasion the plaintiff apparently engaged in a "trauma focused therapy session";
· on 27 January 2009, the plaintiff had indicated that he was frustrated by doctors who told him there was nothing wrong with his neck and upper back and expressed a belief that his condition had not improved;
· on 10 February 2009, the plaintiff reported an adverse response to Endep, medication earlier prescribed by Dr Kempster. The plaintiff was next prescribed Zoloft and later Cymbalta by Dr Yiap;
· on 24 March 2009, among other things, the plaintiff complained of feeling "really down", spending a lot of time in bed and he indicated his belief that the antidepressant medication was no longer working;
· on 19 May 2009, Dr Strubel recorded that the plaintiff "looks awful, sleep deprived and depressed" and that the plaintiff "cited all the classic anxiety and depression related symptoms, PTSD… quite weepy… (the plaintiff) indicated a desire to go into a psych. hosp (sic)";
· on 2 June 2009, Dr Strubel noted that the plaintiff "looks unkempt" and, amongst other things, had expressed a belief that he was getting worse, that he would be better off living in a mental institution, that it would be better for everyone if he were dead and that he had contemplated taking his life many times;
· on 16 June 2009, Dr Strubel noted that the plaintiff looked "depressed, sleep deprived, drained…" On this occasion, the plaintiff reported recurring nightmares and participated in cognitive behavioural therapy session;
· on 1 February 2010, some six weeks before the second accident, the plaintiff "complained of a chronic lack of sleep, nightmares of the accident, I'm scared of falling asleep and having night-mares I'm just very towie (sic)…" and he again spoke of suicide. On this occasion the psychologist wrote that the plaintiff suffered from "somnolence related to depression" and made a note: "PTSD & depression".
104 As I have already said, these entries indicate the presence of significant symptoms of depression and ongoing symptoms of trauma prior to the second accident (with a marked deterioration in the plaintiff's mental state during 2009), in the treatment of which the plaintiff was prescribed various medications and underwent therapy and counselling. The reports of the psychologist also indicate a likely ongoing causal relationship between the plaintiff’s current mental state and the accident.
105 Other evidence indicative of a deterioration in the plaintiff's mental state during 2009 includes:
· Dr Yiap's evidence that “..he was getting more depressed from chronic pain. He had symptoms of insomnia, depressed mood, worthlessness, sadness, disconnection, withdrawal, forgetfulness, poor concentration, apathy, lethargy, nightmares, fleeting thoughts of self harm, a loss of self-esteem, hopelessness and anxiety about the future.…",[95] and referral of the plaintiff to psychiatrist, Professor Damodaran on 20 April 2009;
· the evidence of psychiatrist, Dr Ingram, who on 5 June 2009 assessed the plaintiff at the request of TAC. He also recommended referral to a psychiatrist.[96] This was partly because Dr Ingram was concerned about the adequacy of the plaintiff's antidepressant medication in treating his symptoms of depression. Dr Ingram clearly linked the plaintiff's psychological state to the accident when he said: "I feel that Mr Botte is mainly suffering from a chronic adjustment disorder with depressed mood, with the level of his depression being such that one could also diagnose a major depressive disorder. This is a secondary consequence of the accident and his subsequent chronic pain and loss of use of his right arm, leading to him becoming dependent on his wife. He also has some residual symptoms of Post-Traumatic Stress Disorder as well as a phobic anxiety in regard to driving and these are a primary consequence of the accident."
[95]JCB 51
[96]Ibid, 205.1-205.6
106 The plaintiff first attended Professor Damodaran on 5 August 2009. The plaintiff’s evidence was that he continues to consult Professor Damodaran on a monthly basis.
107 Other than a letter to TAC dated 31 August 2009,[97] all of Professor Damodaran’s reports (dated 5 September 2010, 23 July 2012 and 12 June 2013 respectively[98]) were submitted after the second accident.
[97]Exhibit P3
[98]JCB 86-106
108 None of the reports record the advent of the second accident or its impact, if any, on the plaintiff's mental state. However, an extract from the psychiatrist’s hand written clinical records[99] supports a finding that, on 10 April 2010, the plaintiff probably informed the psychiatrist about the second accident and had provided information about both the circumstances of the accident and his response to same. Unfortunately, without further clarification from the psychiatrist, I could not read or properly interpret most of the rest of the content of the hand written record kept for that day.
[99]Exhibit P4
109 Whether these are found in his letter dated 31 August 2009 or in his first report dated 5 September 2010,[100] Professor Damodaran made the following relevant observations:
[100]JCB 86-90
· "The major issues during the period has been his chronic pain symptoms, depressed mood, marked social withdrawal and sense of worthlessness. This was affecting his family relationship and his role function as a father and husband. His wife reported that he lost interest in almost all family activities and became quite secluded and did not show any interest in any social activities or family functions… His sleep was disturbed with periods of frequent waking up, initial insomnia and waking up with a fright and at times with nightmares";
· the plaintiff was taking opiod and hypnotic medications;
· subsequent to the initial consultations, the plaintiff's mood and pain symptoms mostly fluctuated with minimal improvement in between;
· the plaintiff had reported suicidal thoughts and preoccupation. He (Professor Damodaran) had been contacted by the treating psychologist to alert him to the psychologist’s concerns about the plaintiff's risk of suicide;
· in view of worsening depression and the risk of suicide on 31 August 2009 Professor Damodaran sought permission from TAC to admit the plaintiff to Delmont Private Hospital for three weeks to manage his depression and review his medications;
· during this admission (evidence from the plaintiff and Dr Yiap indicated that this probably took place between 7 September and 27 September 2009[101]), in addition to reviewing his medication, the plaintiff was involved in individual and group therapy programs;
[101]Ibid, 22 and 51 respectively
· during his period of treatment of the plaintiff the psychiatrist had trialled the plaintiff on various antidepressant medications and stabilised his pain medications on the same dose of opioids medications;
· there was a worsening of the plaintiff's depression and pain symptoms over June 2010, as a result of which the psychiatrist had recommended readmission to the Delmont Private Hospital. This recommendation was clearly made after the second accident and before any likely further exacerbation of the plaintiff's condition as a consequence of his wife’s sudden passing on 20 June 2010. Approval was not given by TAC until August 2010;
· the plaintiff was readmitted to the psychiatric hospital on 4 September 2010 "… with a gradual relapse of his depression and worsening of his pain. The pain symptoms are mostly in his right shoulder and inter-scapular area along with increased pain over his mid and lower back with radiation into the buttocks in thigh";
· the plaintiff was suffering from a chronic pain syndrome and a chronic adjustment disorder with depressed mood. Notably, unlike the psychologist (but in keeping with Dr Ingram’s evidence), the psychiatrist did not consider the post-traumatic symptoms described by the plaintiff as sufficient to fulfil the criteria for the further diagnosis of Post-Traumatic Stress Disorder;
· the plaintiff's psychiatric injury had been caused by a combination of the primary psychiatric trauma of the injury and was secondary to his physical injury sustained as a result of the accident. The plaintiff had commenced taking anticonvulsant medication (Lyrica) for treatment of neuropathic pain and he was taking opiods and Nitrazepam, the latter to address sleep disturbance, which was part of the plaintiff's depressive symptoms;
· the plaintiff's prognosis was poor.
110 In his next report dated 23 July 2012,[102] the psychiatrist said that the plaintiff: "… continued to attend .. on a regular monthly basis…continued to maintain a fluctuating mental state ... The major issues… were ongoing low mood, lack of motivation, poor energy and period of anxiety and occasional panic symptoms resulted in avoidance behaviour". It seems that during this period, a worsening of the plaintiff's depression led to another admission to Delmont Private Hospital for two weeks. The plaintiff deposed that this was from approximately 2 June to 15 June 2012.[103]
[102]Ibid, 100-102
[103]Ibid, 27
111 During this admission, the plaintiff's medication was reviewed, he attended group therapy and he participated in activity-based programs. In his report, Professor Damodaran said that, prior to discharge, the plaintiff's sleep had improved and his nightmares were reduced. The treating psychiatrist nonetheless reiterated his earlier diagnoses of Chronic Pain Disorder and Chronic Adjustment Disorder with mixed depressive and anxious mood.
112 In his final report in June 2013,[104] among other things, Professor Damodaran identified the plaintiff's ongoing issues as: pain, sleep difficulties, flashbacks, poor concentration and memory, low mood and motivation and anhedonia. He also reported that the plaintiff had commenced a pain management program to which he had been referred. The diagnoses reported were unchanged. Professor Damodaran clearly attributed the plaintiff's current mental state to injury suffered as a result of the accident.
[104]Ibid, 103-106
113 The defendant submitted that this treating specialist's reports and his diagnoses should be afforded less weight because, unlike some of the other doctors, Professor Damodaran failed to mention or discuss the impact of the second accident where both the plaintiff and his daughter agreed it had worsened his physical and psychological conditions. [105]
[105]TN 179
114 That Professor Damodaran probably had known about the second accident when he prepared his three reports was not, so the defendant submitted, sufficient because the treating psychiatrist had failed to consider to what extent, if any, the plaintiff's current mental state was attributable to the second accident.
115 Nevertheless, allowing for my summaries of the treating psychologist’s evidence and Dr Damodaran’s evidence, I was satisfied that, taken as a whole, his evidence was logically capable of supporting a finding that there was an ongoing causal relationship between his patient’s mental disturbance (and the level and severity of his symptoms) and the accident, which at the date of hearing had not been subsumed by any injury suffered in the second accident.
116 A number of specialist reports relating to the plaintiff’s mental state were tendered. These were additional to the earlier report of Dr Ingram and his further report, having reviewed the plaintiff on 30 April 2013.
117 Psychiatrist, Dr Weissman assessed the plaintiff at the request of his solicitors on 10 December 2010 and again on 11 April 2013. Psychologist, Dr Remenyi, assessed the plaintiff at the request of the TAC on 23 June 2011. At hearing, the defendant indicated reliance on Dr Ingram's evidence only.
118 In my view, the opinions expressed by Dr Ingram in his final report are favourable to the plaintiff's case because:
· his diagnosis is consistent with the main diagnosis proffered by all the specialists ("… Mr Botte is suffering from a chronic adjustment disorder with depressed mood. This is a secondary consequence of his chronic pain and his subsequent limitations"[106]);
[106]Ibid, 209
· having been appraised of the circumstances of the second accident which the plaintiff reported had again caused loss of functioning of his right arm, Dr Ingram apportioned the greater responsibility for the plaintiff's psychological problems to the accident ("I feel his depression is mainly related to his chronic pain, which I think is related to his two motor car accidents, the first more than the second.… I think his psychological problems are a secondary consequence of the injuries arising from his accident."[107]);
[107]Ibid, 210
· he considered the plaintiff’s prognosis to be very poor given the long-term psychotherapy undertaken, with trials of many different medications;
· he accepted that the plaintiff's depression interfered with his ability to enjoy domestic and leisure activities.
119 I found the defendant's submission that Dr Ingram had not disclosed his reasons for emphasising the relationship between the accident and the plaintiff's chronic pain syndrome, untenable. When formulating his opinion, Dr Ingram clearly took into account a number of relevant matters, including:
· the plaintiff's psychological condition following the accident, which involved a chronic adjustment disorder with depressed mood secondary to this accident and subsequent chronic pain and impaired functioning of the plaintiff's right arm;
· the plaintiff’s report that the procedure performed on his right shoulder in December 2009 had led to some improvement in the function of his right arm, until the intervention of the second accident;
· That, since the accident, the plaintiff had consistently reported symptoms of chronic pain, which he said had become "a little worse" following the second accident;
· the plaintiff's report that his depression had not improved since he was last examined by the psychiatrist in June 2009;
· the plaintiff’s concession that the second accident may have worsened his depression;
· reports made by Professor Damodaran in 2010 and Dr Strubel in 2012, as well as a report from the Delmont Hospital following the plaintiff's readmission on 5 September 2010.
120 As mentioned, Dr Weissman examined the plaintiff on 10 December 2010 and again on 11 April 2013. His reports are detailed. His conclusions were informed, among other things, by various medical reports or records kept by the treating psychiatrist, psychologist, physiotherapist and general practitioner, records of the Delmont Hospital, reports from TAC specialists, including Dr Remenyi (1 July 2011) and the first affidavit sworn by the plaintiff.
121 Dr Weissman was also privy to some material and records relating to the plaintiff's earlier back injury and he drew attention to the reference in this material to overt pain behaviours.[108]
[108]JCB 166
122 Dr Weissman had clearly understood the complexities of the plaintiff's case when, some nine months after the second accident, he opined that, as a result of the accident, the plaintiff:[109]
[109]JCB 167-168
· had mild "primary" or direct symptoms and features of traumatisation but not full-blown Post-Traumatic Stress Disorder. He noted his agreement with Professor Damodaran in this regard;
· had no separate, unrelated or new psychiatric impairment due to the second accident;
· probably had some separate psychiatric impairment related to the death of the plaintiff's wife, which, at the time, Dr Weissman thought could resolve over a two-year period;
· was suffering from a moderately severe mixed, reactive depressive syndrome as a consequence of, or secondary to, accident-related pain, injuries, disabilities, limitations and restrictions, changes and losses to his life;
· was suffering from a severe Chronic Adjustment Disorder with Depressed and Anxious Mood. This was in addition to the plaintiff's primary or direct post-traumatic stress and anxiety symptoms and features of traumatisation.
123 In 2010, Dr Weissman reported a poor and unfavourable prognosis. He also considered the plaintiff at significant risk of psychiatric re-hospitalisations at some stage in the future and at an increased risk of suicide.[110]
[110]JCB 172
124 On review in April 2013, among other things, the plaintiff apparently described: "ongoing thoughts, triggers reminders and flashbacks of the January 2008 transport accident associated with mild Post-Traumatic Stress Disorder symptoms and traumatisation features and moderately severe mixed reactive depressive and anxiety symptoms, themes and features predominantly consequential to the January 2008 transport accident. There are still some mild unresolved grief regarding his wife's death and his father also died last year in his early 90s. There is anhedonia, negative thinking, intermittent passive suicidal ideation (but no current active suicidal plan or intent), and some pain focus."[111]
[111]JCB 179-180
125 On this occasion, Dr Weissman reported that the plaintiff:[112]
[112]JCB 183-184
· was still suffering from clear, discernible, classical, mild, primary or direct post-traumatic stress and anxiety symptoms and traumatisation features directly due to the circumstances of the accident;
· probably did not have a full-blown Post-Traumatic Stress Disorder;
· was suffering from a moderately severe mixed reactive depressive syndrome with anhedonia and intermittent passive suicidal ideation predominantly as a consequence of, or secondary two, his accident-related pain in injuries, disabilities and dysfunction, limitations and restrictions, changes and losses to his lifestyle and functioning consequential to the accident;
· was suffering from a moderately severe depressive syndrome. In characterising this as moderately severe, Dr Weissman noted that he had taken into account the several psychiatric admissions to hospital, the requirement for ongoing intense psychiatric, psychological and general practitioner treatment and follow-up as well as "a solid combination of psychotropic medications";
· has sustained and developed a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderately severe intensity or severity;
· probably has also sustained symptoms and features of a Chronic Pain Disorder, associated with psychological factors and a general medical condition.
126 Dr Weissman unequivocally linked the plaintiff's current psychiatric state and its impact in all areas of the plaintiff's life to the accident ( "overwhelmingly in my view, it is the transport accident (dated 8 January 2008) that remains a significant, and the major, contributing factor to his overall psychiatric state and presentation"[113] and "it seems to me that the transport accident has led to a moderately severe group of accident-related psychiatric conditions or mental injuries with at least a moderately severe decline and deterioration in all aspects, facets and modalities of his quality of life, there now seems to be significant functional impairment and disability that is part physically-based… but part psychiatrically-based"[114]).
[113]JCB 183
[114]JCB 185
127 In my view, even after making allowance for some likely willingness on the plaintiff’s part to present his claim at its highest, the defendant's submission to the effect that this specialist had been deprived of the "full picture" was unsustainable.
128 Clinical psychologist, Dr Remenyi, is a medico-legal specialist who, on 23 June 2011 ( at the request of TAC), examined the plaintiff once, some six months after he was first seen by Dr Weissman. Judging from the questions to which this psychologist responded, I think it reasonable to accept that he was not specifically asked to apportion responsibility for the plaintiff's current mental state as between the accident and the second accident.
129 I note that reports from Dr Ingram and Dr Strubel and correspondence from the treating psychiatrist were among the materials to which Dr Remenyi referred.
130 Following assessment and testing, Dr Remenyi concluded that:[115]
[115]JCB 201-204
· from a psychological perspective, the plaintiff had reacted badly to both "car injuries" (which I took to be a reference to any physical injury suffered) and he was then suffering from considerable chronic pain and psychological adjustment problems at the same time as he was grieving over the death of his wife;
· the plaintiff suffered from depression, chronic pain and post-traumatic stress symptoms as a result of both accidents, with his adjustment problems worsened by his grief reaction to the loss of his wife;
· the psychological treatment the plaintiff was receiving was appropriate, as was ongoing psychological treatment, albeit with a program to reduce the frequency of this treatment over time.
131 At the very least, Dr Remenyi’s evidence confirms that by June 2011 (nearly 3½ years after the accident) the plaintiff presented with significant mental disturbances to which both accidents contributed, with his grief reaction to his wife’s death also contributing to his adjustment problem.
Findings
132 The treating general practitioner and specialists supported by two medico-legal psychiatrists and a psychologist have all identified mental disturbance and disorders with ongoing consequences to which the accident contributes (whether this is stated or can be inferred). None of the treating doctors or medico-legal specialists have suggested that mental injury suffered in the accident has been subsumed by any mental injury triggered by the second accident. All agree that the plaintiff’s prognosis for the foreseeable future is poor.
133 Relying on the most recent of the specialist evidence, which is notable for the consistency of the diagnoses, the disturbances or disorders identified include:
· Chronic Adjustment Disorder with mixed anxiety and major depression, Post-Traumatic Stress Disorder and Chronic Pain Disorder ( Dr Strubel, April 2013);
· Chronic Adjustment Disorder with depressed mood as a consequence of the plaintiff's chronic pain and subsequent limitations (Dr Ingram, April 2013);
· post-traumatic stress and anxiety symptoms and traumatisation features directly due to the circumstances of the accident, a moderately severe mixed reactive depressive syndrome with anhedonia and intermittent passive suicidal ideation, moderately severe depressive syndrome, a Chronic Adjustment Disorder with depressed and anxious mood of moderately severe intensity or severity and symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition (Dr Weissman, April 2013);
· Chronic Pain Syndrome and a Chronic Adjustment Disorder with depressed mood, as well as symptoms of post-traumatic stress (Professor Damodaran June 2013).
134 As mentioned, despite the occurrence of the second accident, the evidence of treating and medico-legal specialists points to a likely significant and persistent psychological sequelae to the accident, with a likely functional component affecting particularly the right upper limb.
135 The defendant conceded that for the purpose of this leave application the Chronic Pain Syndrome and symptoms were to be assessed under paragraph (c) of the definition of serious injury.
136 In this application I was affirmatively satisfied that the injury to the plaintiff's mental state caused by the accident is serious because at the date of hearing it is fairly described as both severe in its consequences for this plaintiff and as long-term because the impact, treatment and management of the mental injury will likely last for the foreseeable future.
137 In arriving at this conclusion and, without revisiting these in full, I assessed the severity of the consequences of the injury to the plaintiff's life by reference to the evidence of:
· both treating and examining specialists;
· his daughter, who in her affidavit described in some detail the restrictions since the accident on the plaintiff’s day to day activities[116] and at hearing said that her father mostly slept during the day and required physical assistance from her to get out of bed. In short she described a man who was now virtually house bound and dependant on her and her sister;[117]
[116]JCB 30-32
[117]TN 102
· chronic pain, largely driven by the plaintiff’s mental state in the treatment of which, for the foreseeable future, he requires daily doses of medication and regular specialist counselling and therapy;
· the plaintiff's ongoing psychological distress, including the increased risk of suicide and the significant risk of re-hospitalisation in a psychiatric facility;
· the loss of independence and the plaintiff's evident reliance on others, particularly his daughters, for assistance in day-to-day activities, involving personal care, domestic tasks and travelling to and from medical appointments;
· the extent to which pain and psychological distress have and continue to disable the plaintiff in all areas of his life.
Orders
138 Accordingly, pursuant to section 93 of the Act leave is granted to the plaintiff under subsection 93(17)(c) to bring proceedings for recovery of damages in respect to injury suffered in the transport accident on 8 January 2008.
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