Brown v Transport Accident Commission
[2016] VCC 673
•31 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-12-05011
| JOANNE BROWN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 December 2015 | |
DATE OF JUDGMENT: | 31 May 2016 | |
CASE MAY BE CITED AS: | Brown v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 673 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – serious long-term impairment or loss of a body function – injury to the neck and shoulder – serious long-term mental or behavioural disturbance or disorder – Post-Traumatic Stress Disorder – as a result of transport accident
Legislation Cited: Transport Accident Act 1986, s93(17)(a) and (c)
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Richards & Anor v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors. [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Ms B A Myers | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave, pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring a proceeding to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 10 July 2009 (“the transport accident”).
2 The plaintiff was self-represented. The proceeding was managed by Judge Saccardo. The plaintiff confirmed that Judge Saccardo provided her with a document entitled “Serious Injury Applications Seeking Leave to Commence a Claim for Damages Under the Provisions of the Transport Accident Act 1986”, a copy of which is annexed to this Judgment. A combined Court Book was prepared by the solicitors for the defendant.[1]
[1]Joint Court Book (“JCB”)
3 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
4 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There —
“‘Serious injury’ means —
(a)serious long-term impairment or loss of a body function; or
...
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 The loss of body functions relied upon in this application in respect of the physical injury are the neck and the right shoulder. The mental or behavioural disturbance or disorder is Post-Traumatic Stress Disorder (“PTSD”).
6 The plaintiff seeks leave to issue proceedings at common law.
7 The plaintiff relied upon five affidavits, namely, four affidavits sworn by the plaintiff dated 31 May 2011, 18 September 2013, 6 October 2015 and 14 October 2015[2] and one affidavit sworn by the plaintiff’s daughter, Ms Shannon Brown Doyle, dated 18 September 2013.
[2]The affidavits of 6 and 14 October 2015 were in identical form
8 The plaintiff and her daughter, Shannon Doyle, were cross-examined. I have not summarised the evidence of the plaintiff and Ms Doyle; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
9 Counsel for the defendant informed the Court that, in respect to the physical injury, the following issues arose:
(a) whether the pain and suffering consequences of the physical injuries have a predominant organic basis;
(b) the extent of the aggravation to the pre-existing injury to the plaintiff’s right shoulder;
(c) disentangling the consequences referrable to the neck from the right shoulder and the psychological condition;
(d) the plaintiff’s credit; and
(e) whether the plaintiff’s impairment of the neck and right shoulder separately is “serious”.
10 Further, in respect to the mental or behavioural disturbance or disorder, the following issues arose:
(a) the nature and extent of the disentangling and aggravation to the plaintiff’s pre-existing psychological condition;
(b) the plaintiff’s credit; and
(c) whether the plaintiff’s mental disturbance or disorder is “severe”.[3]
[3]Section 93(17)(c) of the Act
Relevant legal principles
11 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[4]
[4]Section 93(17)(a) and (c) of the Act
12 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)that the injury suffered by her was as a result of the transport accident;
(b)that the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
13 In considering a physical injury, the enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[5] where the majority of the Court of Appeal said:
“To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think “long term” is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[6]
[5][1992] 2 VR 129
[6] Humphries & Anor v Poljak (supra) at 140
14 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function for the purposes of sub-paragraph (a) of the definition of “serious injury”.[7]
[7]Richards & Anor v Wylie (2000) 1 VR 79
15 The judgment of the Court of Appeal in Mobilio v Balliotis[8] resolved the legal meaning of “severe”. In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[9]
[8][1998] 3 VR 833
[9]Per Brooking AJ in Mobilio v Balliotis (supra)
16 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[10]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[10][1998] 1 VR 702
17 The wrongdoer must take the plaintiff as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[11] an analysis must be made of the extent of impairment of the body function or mental or behavioural disturbance or disorder before and after the relevant injury, and any additional impairment must involve serious long-term impairment of body function, or severe long-term mental or behavioural disturbance or disorder.
[11][1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
18 In determining the application, the Court must make the assessment of serious injury at the time the application is heard.[12]
[12] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
The credit of the Plaintiff
19 The plaintiff is aged sixty-three. She was self represented and I take into consideration the difficulties she had in running her own case. I found her pleasant in Court and that was how she was described by a number of the medical witnesses. Some said she was helpful and co-operative.[13]
[13]Dr Strauss at JCB 122; Mr Simm at JCB 140; Dr Scamps at JCB 158D – “very pleasant but somewhat distressed woman”; Dr Mendelson at JCB 190
20 The plaintiff worked as a legal secretary for “some twenty years”[14] at the Victorian Government Solicitor’s office (“VGS”). She ceased that work in 2007. The plaintiff gave contradictory evidence as to whether she accepted a redundancy or resigned from VGS. The evidence was that, around the time she ceased employment, her work was stressful, which she reported to her general practitioner.
[14]JCB 22
21 The plaintiff was cross-examined about her medical history dating back to the early 2000s. She reported to a number of the current medical witnesses that she was suffering memory loss and lack of concentration. I accept that the plaintiff could not reasonably recall in any detail what she was reporting to a doctor and what medication her doctor was prescribing for her seven or eight years ago. I take this into account when considering the credit of the plaintiff.
22 Of central importance is the credibility of the plaintiff as a witness and as an historian of her symptoms to medical practitioners. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[15] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[16]
[15]For example Mobilio v Balliotis (supra); Barwon Spinners Pty Ltd v Podolak (supra) at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14] and [19]
[16]Dordev v Cowan & Ors (ibid) at paragraph [19]
23 In Franklin v Ubaldi Foods Pty Ltd,[17] Ashley JA said:
“Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, … it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”[18]
[17][2005] VSCA 317
[18]Franklin v Ubaldi Foods Pty Ltd (ibid) at paragraph [5]
24 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded. In Cakir v Arnott’s Biscuits Pty Ltd,[19] the Court of Appeal said that an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Further, that regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[20]
[19][2007] VSCA 104 at paragraphs [49] – [58]
[20]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
25 Counsel for the defendant submitted that the plaintiff was not a reliable witness for the following reasons:
(i) The plaintiff exaggerated the level of her impairment and the pain and suffering consequences;
(ii) The plaintiff failed to give an accurate history of her health conditions, both physical and mental, to many of the medical witnesses, including both treaters and medico-legal witnesses;
(iii) The plaintiff failed to give truthful answers in her TAC Claim Form;
(iv) The plaintiff’s affidavit failed to properly disclose her pre-existing circumstances, in particular the nature and extent of her daughter’s problems, difficulties with Mr Brendan Yin (her daughter’s former partner), her psychological condition, her level of medication, her pre-existing shoulder injury and her psychological history;
(v) The plaintiff was an evasive witness in the evidence she gave in Court. On occasions during cross-examination, she gave definitive answers but, when challenged by Counsel for the defendant, she retreated to a position of not being able to remember;
(vi) The plaintiff underwent a neuro-psychological assessment by Dr Scamps, clinical neuropsychologist, in October 2015. The plaintiff failed every validity test. The defendant submitted that these results support its submissions regarding the plaintiff’s credit.
26 In support of its argument regarding the plaintiff’s credibility as a witness, Counsel for the defendant raised the following four issues in cross-examination of the plaintiff and in its closing submissions.
(i) The Plaintiff’s evidence as to her ingestion of Panadeine Forte
27 The plaintiff’s evidence was that she currently she takes nine Panadeine Forte tablets per day.[21] In June 2013, the plaintiff reported to Dr Clayton Thomas that she was taking six Panadeine Forte tablets per day. Her general practitioner, Dr Vanderzeil, was provided with a report from Dr Clayton Thomas. Dr Vanderzeil confirmed that in June 2013, he prescribed Panadeine Forte at a rate of 1.31 tablets per day. Dr Vanderzeil said he did not know the reason for the significant discrepancy but if it is an exaggeration, deliberate or otherwise, this could be related to her psychological condition.[22]
[21]T10, L21–26
[22]JCB 51
28 I accept the evidence is that, in 2013, the plaintiff was being prescribed Panadeine Forte at a rate of 1.31 tablets per day, although she told Dr Thomas she was taking six Panadeine Forte tablets per day at that time. In cross-examination, the plaintiff’s evidence was, at that time in 2013, on some days she took six Panadeine Forte tablets per day, exhausting her supply, so that on other days she took no Panadeine Forte and her ingestion was variable. The plaintiff’s evidence was that her current general practitioner prescribes three Panadeine Forte tablets per day. She takes nine Panadeine Forte tablets per day on some days and on other days, she takes no Panadeine Forte. The plaintiff’s evidence was that she adopted the same practice with Endone. It was only when she was further questioned that it became apparent what she meant. While it could be said that she was answering questions literally, I concluded that the plaintiff exaggerated her consumption of Panadeine Forte to Dr Thomas and what she told the Court as to her current consumption. In light of Dr Vanderzeil’s comments above, I accept this could be related to her psychological condition.
(ii) The Plaintiff’s evidence as to incontinence
29 The plaintiff’s evidence was that she suffers from incontinence[23] every five or six weeks — it could be every two months — and it is urinary incontinence.[24] Initially, the plaintiff said she was too embarrassed to report it to her general practitioner.[25] Then, she agreed that she could have told him.[26] She agreed she would expect it to be reported in his notes. When Counsel for the defendant suggested to her that Dr Vanderzeil’s records did not contain any such complaint, she ultimately retreated from her earlier position and said “Well, I don’t remember, sorry”. Dr Vanderzeil’s notes recorded that she had complained of diarrhoea, urinary tract infection, dysuria and urinary urgency. I accept that if she had complained of urinary and/or faecal incontinence, it would be recorded in Dr Vanderzeil’s notes. I accept that this is another example of the plaintiff exaggerating the consequences of the transport accident.
(iii)The Plaintiff’s evidence as to medication prior to the transport accident
[23]T15, L17
[24]T15, L27
[25]T16, L21
[26]T16, L26
30 Initially, the plaintiff’s evidence was that between August 2007, when she ceased working with VGS, and October 2008, when she was subject to a home invasion, she did not take, nor was she prescribed, any medication.[27] When pressed by Counsel for the defendant, she said she would only have taken medication in January 2008, she did not remember taking it and that it was seven years ago.[28]
[27]T40, L10‒14
[28]T40, L20
31 The medical records confirm that the plaintiff was prescribed medication of Temaze, Panadeine Forte and Valium in January, March, May and July 2008, and she was reporting insomnia and anxiety. First, she said that would have been about it, in terms of the medication at that time, and she did not need it after that. She then agreed she could not remember. She agreed she received another prescription for Temaze on 15 March 2008 but said she could not remember. She agreed that she received another prescription for Temaze in May 2008.[29]
[29]T41, L3
32 This was another example where the plaintiff denied taking any medication, then said she could not remember, but then did seem to remember some details. I accept that the plaintiff was being cross-examined about the medication she received seven years ago and that she could not reasonably be expected to recall in detail what she was prescribed.
(iv)The Plaintiff’s evidence as to panic attacks post the home invasion
– “prior history”
33 It was not in dispute that the plaintiff’s daughters’ ex-boyfriend, Mr Brendan Yin, threatened the plaintiff and damaged her property in October 2008 (“the home invasion”). When Counsel for the defendant cross-examined the plaintiff on whether she suffered panic attacks as a result of the home invasion, her evidence to the Court was as follows:
Q:“Were you suffering from panic attacks as a result of that incident?---
A:No, not panic attacks, just – well, it [w]as frightening for a while – it was a very frightening time.
Q:You didn’t suffer from panic attacks as a result of that incident?---
A:No, no I didn’t. I got through it – that’s what I’m trying to say.
Q:You’ve said in your affidavit, Your Honour, court book p.23, paragraph 8 …
…
Q:‘This incident was quite frightening for me and I also suffered some panic attacks thereafter’?---
A:M’mm.
Q:You’re (sic) just said the complete opposite?---
A:Yeah but I can’t remember that long – you know, I mean, you ask---
Q:You’ve just denied it?---
A:I didn’t deny it I said to you it was – I was very frightening. It was – I said to you I was frightened. You’re trying to confuse you (scil me].”[30]
[30]T43, L10–27
34 The plaintiff’s viva voce evidence as set out above directly contradicts paragraph 8 of her first affidavit. I accept that this was one example of the plaintiff being evasive in the evidence she gave to the Court.
35 In summary, as a result of the plaintiff’s evidence as to her ingestion of Panadeine Forte, incontinence, medication and panic attacks post home invasion, I conclude that, on occasions, she exaggerated and was evasive in the evidence she gave on these topics. I also take into account the fact that she reported memory loss and lack of concentration. Accordingly, I place greater weight on the independent evidence of what the medical practitioners recorded at the time, than on the plaintiff’s recollection of these matters.
The Plaintiff’s prior medical history
36 In addition, Counsel for the defendant submitted that the plaintiff failed to give an accurate history of her health conditions, both physical and mental, to treaters and medico-legal witnesses. The plaintiff’s evidence was that she did not tell her doctors of her previous medical history unless specifically asked.[31] Later, she said the doctors did not ask for a medical history from her.[32] I accept this submission depends upon the questions asked by the medical witnesses. However, many of the medical witnesses commented upon the plaintiff’s failure to disclose her prior history either at the time of examination or when they later became aware of the history. I accept that it is more than likely that the medical witnesses did ask her about her prior history.
[31]T60
[32]T74
(a) Mental state
37 In 1996, the plaintiff made application to the Victims of Crime Assistance Tribunal (“VOCAT”) in relation to an incident in which she was assaulted in front of her home by adolescents, as a result of which she suffered a severe PTSD.
38 Prior to the transport accident, the plaintiff was treated for her mental state by Dr Khoo, general practitioner. In 2010, he confirmed that since 2003, the plaintiff was treated for anxiety issues with medication and, since 2007, she was treated for pre-existing insomnia with medication. Further, she had a PTSD and an exacerbation of her Anxiety Disorder related to a home invasion in October 2008.
39 Dr Khoo’s medical records confirm that she was diagnosed with anxiety as a result of a problem at home on 15 February 2005. There is evidence of repeats of Valium for anxiety in April, June, July and October 2005. On 10 April 2007, she described stress at work. The evidence was that she was made redundant at work in August 2007. On 2 July 2008, she was diagnosed with anxiety regarding a court case for her daughter and consequently prescribed medication. The evidence was that she made application to VOCAT in relation to the home invasion of October 2008 and received psychological treatment as a result. She was housebound and unable to work. In January, March, April and June 2009, she was treated by Dr Khoo, who prescribed medication for her PTSD, anxiety and insomnia.
40 Based on the above evidence, I accept that the plaintiff had a long history of anxiety, depression, PTSD and related medication.
(b) Right shoulder pain
41 In January 2009, the plaintiff reported right shoulder pain as a result of falling off her pushbike to Dr Khoo. The medical records confirmed that the plaintiff reported right shoulder pain in April and June 2009. The plaintiff underwent an x-ray and ultrasound of the right shoulder and in June 2009, she was prescribed Voltaren and exercise for her right shoulder.
42 I accept that, prior to the transport accident, the plaintiff reported right shoulder pain for which she was treated immediately prior to the transport accident.
43 A number of the medical practitioners who treated or were consulted for medico-legal purposes responded that they did not obtain an accurate history of her physical and/or mental condition from the plaintiff, for example:
Dr T R Vanderzeil
44 In September 2009, Dr Vanderzeil reported on the plaintiff’s physical and mental condition and said:
“I know of no pre-existing injuries or conditions which are likely to impact on her transport accident injuries.” [33]
[33]JCB 50
45 In his report of 30 September 2013, Dr Vanderzeil said:
“I believe Ms Brown had a pre-existing significant anxiety state for which I had not treated her. …”[34]
[34]JCB 51
Dr Lionel Schachna
46 Dr Schachna, treating rheumatologist, obtained a history of the home invasion, but no history of the plaintiff’s anxiety state, insomnia and the pre-existing shoulder injury.
Mr Tim Galbally
47 Mr Galbally, treating psychologist, obtained a history of the home invasion but not her longstanding history of anxiety and insomnia.
Dr V Pasan Manawadu
48 Dr Manawadu, treating psychiatrist, obtained a history that the plaintiff was “a high functioning woman until 2009” and that she had been traumatised by the home invasion in 2009.[35]
Dr Lanka Cooray
Dr Cooray, treating psychiatrist, diagnosed a Panic Disorder with agoraphobia as a result of the transport accident. In a supplementary report of June 2013, Dr Cooray reported that she assessed the plaintiff in May 2011 and that the plaintiff did not report the home invasion. In her report of July 2013, she acknowledged receipt of Dr Strauss’ report of June 2013 which referred to the assault of 1996 by adolescents which resulted in the plaintiff suffering PTSD.[36]
[35]JCB 61
[36]JCB 78
Dr Stephen Stern
49 In June 2010, Dr Stern, psychiatrist, examined the plaintiff at the request of the defendant. He obtained a past history of an Anxiety Disorder in October 2008 as a result of the home invasion. In September 2010, Dr Stern was provided with the plaintiff’s medical records from 2002 until 2010. He concluded that the plaintiff did not disclose her –
“… long past history of anxiety and medication (Valium and Temaze), which throws some doubt on the accuracy of the whole history she gave me.”[37]
[37]JCB 165
Dr Bruce Hocking
50 In July 2010, Dr Hocking, specialist in occupational medicine, did not obtain an accurate history of the plaintiff’s pre-existing conditions and reviewed his opinion in the light of further information.
Mr Rodney Simm
51 In July 2010, Mr Simm, medico-legal orthopaedic surgeon, obtained a history that prior to the transport accident, the plaintiff was previously physically well. He did not obtain a pre-existing history of her shoulder injury. In a report of February 2011, he concluded that the records of the general practitioner did not alter his opinion expressed in his previous report.
Dr Nigel Strauss
52 In February 2011, Dr Strauss, consultant and occupational psychiatrist, reported having examined the plaintiff on two occasions in 2010, when he was told that the plaintiff had no past psychiatric history other than the home invasion in 2008.
53 In February 2011, he was provided with a report from Dr Stern and clinical records from the treating general practitioner, Dr Khoo. He concluded that factors apart from the transport accident in 2009 are more significant than he first believed.
54 In April 2013, the plaintiff informed Dr Strauss that there had been a serious fire at her home, and that she was living in an apartment. She was upset by the fire.
55 In June 2013, Dr Strauss was provided with the VOCAT files from 1996 to 2009. He became aware of an incident in 1996 when the plaintiff was assaulted by adolescents in front of her house and developed PTSD.
Dr Nicholas Ingram
56 In 2012, Dr Ingram, psychiatrist, examined the plaintiff at the request of the defendant. He reported that she initially denied any previous history of psychiatric problems. When told that her local doctor referred to her previous problems with anxiety and depression, she admitted her previous problems, but said that she had “fully” recovered from the home invasion by the time of the transport accident.
Associate George Professor Mendelson
57 In April 2013, Associate Professor Mendelson, psychiatrist, examined the plaintiff at the request of the defendant. He obtained a history of the plaintiff being “treated for an Anxiety Disorder with diazepam since 2003”.[38] She reported an earlier injury of her shoulder. He did not obtain a history of her being housebound for almost six months following the home invasion in 2008.
[38]JCB 197
Dr Clayton Thomas
58 In November 2014, Dr Thomas said of the plaintiff:
“… When I previously saw her, I thought that she was a credible witness but I am not convinced that this is the case now and I am unclear as to whether this is due to a cognitive decline in the interim since I last saw her and I think this needs to be further explored.”[39]
[39]JCB 151
Dr Gordon Morrison
59 In January 2015, Mr Morrison, orthopaedic surgeon, examined the plaintiff at the request of the defendant. He obtained a history of the plaintiff injuring her right shoulder, which improved prior to the transport accident.
Dr Emma Scamps
60 In October 2015, Dr Scamps, clinical neuropsychologist, assessed the plaintiff. The plaintiff responded that she had no psychiatric history and she was a victim of a home invasion. Dr Scamps reported that –
“… She did not pass any of the tasks of effort administered, and given the consistency and nature of her performance, it was concluded that the neuropsychological test results were not a valid representation of her current level of cognitive functioning and could not be used for diagnostic purposes. The results therefore could not be interpreted.”[40]
[40]JCB 158G
61 Dr Scamps concluded that it is highly unlikely that the plaintiff is continuing to experience cognitive impairment as the result of a brain injury from the transport accident. She noted that the plaintiff appeared to be functioning relatively well within the community but is affected by her depression, and psychiatric state.[41]
[41]JCB 158G – H
Dr Zsolt Lukacs
62 In November 2015, Dr Lukacs, psychiatrist, examined the plaintiff but only obtained a history of the home invasion in 2008.[42]
[42]JCB 158I – K
63 Further, the plaintiff reported her injury to her right shoulder and the home invasion to Mr O’Brien.[43]
[43]JCB 48
64 I accept that the plaintiff failed to provide her medical history, including her psychological history and her pre-existing shoulder injury, to many of the medical witnesses. This must be balanced against the fact she reported memory problems to a number of medical witnesses.[44] Some medical witnesses commented on a substance misuse problem[45] and a cognitive decline.[46]
[44]Mr Galbally – JCB 58; Dr Strauss – JCB 85; Dr Thomas – JCB 145; Dr Scamps – JCB 158B; Dr Lukacs – JCB 158J; Dr Simm – JCB 161; Associate Professor Mendelson – JCB 194
[45]Dr Thomas - JCB 147; Dr Hocking – JCB 170
[46]Dr Thomas – JCB 151; Dr Scamps – JCB 158D; Associate Professor Mendelson – JCB 216
65 In her final submission, the plaintiff told the Court that she did not tell doctors about the home invasion and being made redundant as she did not consider they amounted to a mental impairment. However, the plaintiff told a number of the medical witnesses about the home invasion but not about her treatment for and diagnosis of PTSD, anxiety and insomnia and her complaints of right shoulder pain prior to the transport accident.
66 These are matters I take into account when considering the plaintiff’s credit and when considering the respective opinions of the medical witnesses and when analysing their evidence. However, I do note that ultimately some of the medical witnesses were provided with a reasonably accurate history of the plaintiff’s medical condition. I will discuss this further when considering their opinions.
The TAC Claim Form
67 Counsel for the defendant also raised the fact that the plaintiff did not provide truthful answers in her TAC Claim Form (“the form”) regarding her mental and physical state prior to the accident. In completing the form, the plaintiff denied receiving treatment from a psychiatrist, taking more than four weeks off for a medical condition and never suffering from any condition or problem from her shoulders. When pressed by the defendant in cross-examination, the plaintiff explained the mistake by saying that she probably took the question the wrong way,[47] she was not thinking,[48] she misunderstood[49] and that she did not think that the shoulder injury was that bad so she would not have considered it a pre-existing shoulder problem.[50] The plaintiff gave evidence that she was assisted in completing the form by Mr James Spencer, her solicitor.[51]
[47]T55, L24
[48]T55, L26
[49]T56, L4
[50]T56, L37–41
[51]T55
68 Whilst I acknowledge that the plaintiff was assisted by Mr Spencer, I conclude that she was not truthful in her answers in the form and that this was another example of the plaintiff being evasive in her evidence.
The Plaintiff’s affidavits
69 The plaintiff was criticised for failing to properly disclose her pre-existing circumstances in her affidavits. In particular, the nature and extent of her daughter’s problems, the plaintiff’s difficulties over many years with Brendan Yin, her psychological condition, the medicine she was taking and her pre-existing shoulder injury.
70 In the plaintiff’s first and second affidavits, she disclosed that she was a victim of crime in October 2008, the treatment she received and that she was off work for approximately six months. She disclosed that she was assaulted in May 1996, was referred to counselling, had a week off work and recovered. In her second affidavit, she disclosed that prior to the transport accident, she had difficulties with anxiety and depression and sought treatment from her general practitioner.
71 I accept that the plaintiff did not disclose her pre-existing shoulder injury. Otherwise, I accept that the disclosure in the plaintiff’s affidavits were appropriate.
Conclusion as to the credit of the Plaintiff
72 In assessing the credit of the plaintiff, I must consider the evidence as a whole.
73 There are factors that support the credibility of the plaintiff.
74 First, I take into account the fact that the plaintiff was being questioned about her mental and physical state as far back as 1996, but more particularly in 2008, which was seven years ago. I accept that the plaintiff may not have remembered the evidence in great detail.
75 Second, I take into account there was evidence in the plaintiff’s affidavits that was not challenged by the defendant.
76 Third, I also have regard to the fact that the defendant had the plaintiff under surveillance for 71 hours and 68.15 minutes of video was obtained. I was not shown any of the surveillance and, as a result, I can only conclude that it did not assist the defendant’s position.
77 Fourth, I am also aware of the difficulties that the plaintiff confronted in representing herself.
78 However, I accept that there are strong factors that undermine the credibility of the plaintiff.
79 First, the plaintiff was prone to exaggerate her evidence, such as her level of medication and panic attacks prior to the transport accident and incontinence following the accident. I accept the plaintiff is less reliable about the history of her shoulder pain and her mental state prior to the transport accident.
80 Second, on occasions, she was an evasive witness in the evidence she gave in Court and in the form.
81 Ultimately, I conclude that the plaintiff is an unreliable witness. Due to the difficulties with the plaintiff’s evidence, I place greater weight on her evidence when it is supported by independent evidence. Where there is conflict between the objective evidence and the plaintiff’s evidence upon a particular aspect, I am more inclined to accept the objective evidence.
82 I note that the plaintiff’s daughter, Shannon, was cross-examined. She was asked about events that extended beyond ten years, of which she had little memory. She confirmed her mother had been hardworking; however, she had difficulty with time lines. Shannon had significant medical health issues and had suffered distressing events in her life. Her evidence was of limited assistance to me.
Analysis of the evidence
The physical injuries
83 Within days of the transport accident, the plaintiff reported to medical witnesses, pain to her neck and right shoulder as a result of the transport accident. In respect of the physical injury, I must consider each body part separately, namely, the neck and the right shoulder.
84 All of the medical witnesses who addressed the physical injuries accepted that the plaintiff suffered a neck injury and a right shoulder injury as a result of the transport accident.
85 The neck injury was variously described as a soft tissue injury, whiplash injury[52] and cervical spondylosis.[53]
[52]Mr Turner, physiotherapist; Ms Bogatek, physiotherapist; Mr Simm, orthopaedic surgeon; Dr C Thomas, consultant in rehabilitation and pain medicine, and Mr Steedman, surgeon
[53]Mr Morrison, orthopaedic surgeon
86 In relation to the right shoulder injury, the plaintiff did not disclose her complaints of pre-injury pain to the right shoulder to the medical witnesses she consulted. Dr Khoo treated the plaintiff for pre-injury right shoulder pain by prescribing medication and referral for x-ray and ultrasound. He examined the plaintiff following the transport accident on two occasions in July 2009 and April 2010. He accepted that it was possible she suffered a worsening of a pre-existing supraspinatus tear/subdeltoid bursitis. He was the only medical witness who addressed the shoulder injury who was aware of the pre-accident shoulder injury. The medical witnesses that had access to the radiology reported it disclosed common age-related changes[54] or changes that predated the transport accident.[55] Mr Morrison, orthopaedic surgeon, accepted that the transport accident would have caused some aggravation to the shoulder injury but said that her ongoing symptoms could only be partially attributed to the accident.[56]
[54]Mr Simm – JCB 131
[55]Mr Morrison – JCB 222
[56]JCB 226B
87 The assessment that I must make of the plaintiff must be undertaken at the time of hearing the application. Accordingly, I will be assisted by the up-to-date medical evidence relating to the neck and right shoulder injuries.
88 The majority of the most recent of the medical witnesses who addressed the physical injuries expressed the view that the plaintiff now presents with a Chronic Pain Syndrome. This was the diagnosis expressed by Dr Vanderzeil, general practitioner.[57]
[57]JCB 51
89 Dr Thomas, consultant in rehabilitation and pain medicine, thought the plaintiff’s primary injury was a whiplash associated disorder with a chronic pain stemming from that.[58] Dr Thomas said the plaintiff presented in “a chaotic manner”, which makes interpretation of the history problematic. His impression was that non-organic factors were contributing heavily to her poor participation in the cognitive screening tests he attempted.
[58]JCB 150
90 Mr Simm, orthopaedic surgeon, said it was not possible to determine the nature and extent of any underlying physical condition of the cervical spine, right shoulder and the lumbar spine. He said her clinical presentation has deteriorated and she presents with a more extreme clinical picture of an illness with non-organic physical signs. He said the apparent deterioration in her condition almost certainly related to non-organic and/or psychological factors. He further said the sequelae of the injuries has been the development of a severe adverse pain response and an associated emotional condition.[59]
[59]JCB 143
91 Mr O’Brien, orthopaedic surgeon, said the plaintiff presented with a Chronic Pain Syndrome.[60] These medical witnesses saw the plaintiff on more than one occasion.
[60]JCB 187
92 In contrast, Mr Steedman, surgeon, examined the plaintiff on one occasion in 2014. He obtained a history of headaches and both neck and right shoulder aches which radiate down the right arm. He said the plaintiff’s injuries involved headache and whiplash injury to the neck. He did not form an opinion about the right shoulder. He obtained no history of the pre-existing physical or psychological problems. He acknowledged receipt of extensive medical material which included the plaintiff’s treaters’ reports, medico-legal reports of both the plaintiff and defendant, radiology both pre and post the transport accident and copies of clinical records of medical practitioners. He made no mention of any of the material forwarded to him in his report. The report of Mr Steedman is superficial and does not disclose his path of reasoning. Accordingly, his opinion does not assist me in the analysis I must undertake.
93 In 2015, Mr Morrison, orthopaedic surgeon, examined the plaintiff. The plaintiff reported immediate pain in her neck and right shoulder following the transport accident. Mr Morrison had access to the results of the x-ray of the cervical spine and right shoulder of 24 July 2009 and the CT scan of the cervical spine of 25 January 2010. He concluded that the pathology revealed slight multi-level spondylosis with a slight spondylolisthesis at C4-5 of the cervical spine and some arthritis of the AC joint of the right shoulder. The ultrasound of the shoulder suggested a partial defect of the supraspinatus tendon. He concluded that these features predated the transport accident. He recorded that the plaintiff reported a fall from her pushbike, from which she suffered right shoulder pain that she recovered from prior to the transport accident.
94 Mr Morrison was also aware that the plaintiff had significant health problems including psychiatric disorder which has been diagnosed variously as a PTSD, Depression, Anxiety and agoraphobia. He said her features of right hip pathology were unrelated to the transport accident. He noted that her musculoskeletal problems are present in the context of significant psychological disturbance and abnormal pain behaviour which he noted were not within his area of expertise to comment further. He said, in relation to the physical injuries, her prognosis for improvement was poor.
95 Mr Morrison was aware of the plaintiff’s shoulder injury, which he said predated the transport accident. He accepted that that there would have been some aggravation by the transport accident but her ongoing symptoms can only be partially attributed to the transport accident. He said she could not return to work because of the shoulder and neck condition combined. I am not permitted to combine the two injuries. Accordingly, Mr Morrison’s report does not assist me in the analysis I have to undertake.
96 Given the state of the medical evidence in relation to the physical injuries, I accept that the current view of the majority of the physical doctors is that the plaintiff no longer suffers a physical injury in relation to her neck or her right shoulder. The medical evidence expressed by the physical doctors is variously described as a Chronic Pain Syndrome;[61] a Whiplash Associated Disorder with a chronic pain stemming from that,[62] and a severe adverse pain response and an associated emotional condition.[63] Accordingly, I am satisfied that the plaintiff no longer suffers a physical injury to her neck or her right shoulder and instead, she suffers a Chronic Pain Syndrome, which must be considered as a mental or behavioural disturbance or disorder.
[61]Dr Vanderzeil and Mr Simm
[62]Dt Thomas
[63]Mr Simm
Mental or behavioural disturbance or disorder
Pre-accident mental state
97 It was not in issue that, prior to the transport accident, the plaintiff had been treated for her mental state.
98 In 1996, the plaintiff was treated by a psychologist, Dr Gallichio, who reported that the plaintiff was assaulted by adolescents in front of her home. She suffered a severe PTSD and thereafter commenced an application to the VOCAT. There was no evidence as to the effects of the PTSD. The evidence was that the plaintiff was employed in full-time work up until 2007. Accordingly, I consider this incident too long ago to have much relevance on her present condition.
99 Dr Khoo, general practitioner, confirmed that the plaintiff was treated with Diazepam for anxiety issues since 2003. She had pre-existing insomnia since 2007 and used Temazepam on an intermittent basis since then. She had a PTSD and an exacerbation of her Anxiety Disorder related to the home invasion in October 2008.
100 Dr Khoo’s medical records confirm that the plaintiff was prescribed medication for these conditions up until June 2009.[64] On 10 April 2007, she reported stress at work, and in May 2007, she was prescribed Temazepam for insomnia. The comment “work stress issues not better” is noted by Dr Khoo. On 22 June 2007, there was reference to stress at work (as previous – “Temaz”).
[64]JCB 70
101 The plaintiff’s evidence was that she was under pressure at work at VGS and, after many years working at VGS, she was made redundant in August 2007. After she left VGS, she commenced working as a freelance legal secretary in the private sector. The plaintiff’s evidence was that she worked for a number of law firms for various periods totalling 33 weeks up until the home invasion in October 2008. Dr Khoo’s records noted in January 2008, “Now in new job”. There was no independent evidence to confirm how often the plaintiff worked after accepting a redundancy from VGS.
102 The plaintiff’s evidence was that the home invasion occurred in October 2008,[65] although there was objective evidence that the incident occurred in early 2008.[66] The plaintiff’s evidence was that she became very anxious as a result. She brought a claim at VOCAT and was provided with psychological treatment, including ten sessions with a psychologist. She was off work for approximately six months. She said she recovered from this episode and had returned to work at the time of the transport accident.
[65]JCB 118 – report of Dr Stauss of June 2013; VOCAT files. The letter from Ms Porter of the Merri Community Health Services refers to the plaintiff being involved with the Centre since early 2008 after experiencing a traumatic incident involving her daughter’s partner.
[66]Dr Strauss
103 I accept that since 2003, prior to the transport accident, the plaintiff was being treated for anxiety issues and prescribed medication. Since 2007, she suffered insomnia, for which she was prescribed Temazepam on an intermittent basis. In early 2008, she was being prescribed medication and receiving treatment for insomnia. In July 2008, she was diagnosed with Anxiety regarding a court case for her daughter and was prescribed Valium and Temazepam. In 2008, she reported suffering anxiety as a result of the home invasion. As a result, she was off work for six months. She sought treatment from Dr Khoo in relation to Anxiety and PTSD on 14 January 2009, 14 March, 22 April and 5 June 2009. Immediately prior to the transport accident, Dr Khoo’s records confirm that she was receiving psychological counselling. Throughout the above period, she was being treated with Valium and Temazepam.
104 The plaintiff’s evidence as to work was that, just prior to the transport accident, she worked for two legal firms for two weeks each but this was not supported by independent evidence.
105 Further, at the time of the transport accident, she was well and had returned to work as a legal secretary three days prior to the transport accident, which was supported by independent evidence.
106 I accept the evidence is that the plaintiff performed some work after leaving VGS, which was temporary and in short-term contract roles. There was no independent evidence that it was sustained employment. After the home invasion, she was off work for six months because of her mental condition. At the time of the transport accident, she was attempting to work as a casual secretary.
Post transport accident events
107 The evidence was that, following the transport accident, the plaintiff’s house was damaged by a fire. She moved into an apartment with her daughter for a period while the house was repaired. She then moved back into the house. Ultimately, the house was sold due to financial pressures. She purchased a property in South Australia where she was living with her daughter.
108 In 2014, her long-term lodger, the father of one of her daughters and her former husband, suffered cancer and was found dead on the beach, while she was attending Melbourne in preparation for her case. Most of the medical practitioners were unaware of these events. Those that were aware made no comment on its effect upon the plaintiff’s current medical condition. The plaintiff gave evidence that the events were stressful. I accept that at the time, these events were stressful. However, there was no evidence, medical or lay, that this was currently affecting the plaintiff. Accordingly, I do not take these incidents into account in my assessment.
Current mental state
109 The current psychiatric medical evidence as to the plaintiff’s mental state was expressed by Dr Lukacs, Dr Strauss and Associate Professor Mendelson, psychiatrists, and Dr Scamps, neuropsychologist.
110 Dr Lukacs examined the plaintiff on one occasion in November 2015. He had a limited history of the plaintiff’s pre-accident mental state, namely, that she had been a victim of a home invasion in the late 2000s. He noted that she got better (recovered by self). He said the plaintiff had an Adjustment Disorder, which is associated with moderate (45-per cent level compatible with some but not all useful functioning) psychiatric impairment and on the basis of the established chronicity, the plaintiff’s psychological prognosis is generally guarded.[67] I accept that Dr Lukacs’ opinion is of limited use, as he saw the plaintiff on one occasion and had a limited history of the plaintiff’s pre-accident mental state and an inaccurate history of her recovery from the home invasion. The evidence was that she obtained ten sessions of psychological counselling after the home invasion.
[67]JCB 158K
111 Based on the majority of the current psychological/psychiatric reports, the plaintiff’s current condition was variously described as:
(i) Post-traumatic stress symptoms: the plaintiff was prone to Depression and Anxiety;[68]
[68]Dr Strauss
(ii) Adjustment Disorder associated with moderate psychiatric impairment;[69] and
(ii) Chronic Anxiety Disorder.[70]
[69]Dr Lukacs
[70]Associate Professor Mendelson
112 Associate Professor Mendelson said the plaintiff did not have specific symptoms of a diagnosable mental disorder due to the transport accident, such as a significantly clinically depressive illness or any specific type of accident-related Anxiety Disorder. He accepted that the plaintiff had a Chronic Anxiety Disorder for which she was initially prescribed tranquiliser mediation in 2003. He accepted there had been an aggravation of her condition following the home invasion in 2008. He thought she presented as having a degree of cognitive impairment that appeared to be more marked since he last examined her in March 2013. He recommended formal neuropsychological testing.[71] That testing was conducted by Dr Scamps in October 2015. The report of Dr Scamps, who conducted a neuropsychological assessment of the plaintiff in 2015, did not require him to change or modify his opinion expressed in his earlier report, namely that the plaintiff has no specific diagnosable mental disorder arising from the transport accident.
[71]In November 2014, Dr Thomas expressed a similar view
113 Dr Strauss examined the plaintiff on four occasions between June 2010 and November 2014. He ultimately obtained a detailed history of the plaintiff’s pre-accident mental state. He reviewed the VOCAT file from 1996 to 2009. He reviewed the clinical records of Dr Khoo, the plaintiff’s general practitioner. He was aware the plaintiff moved to South Australia because she had family there.
114 Dr Strauss diagnosed post-traumatic stress symptoms and said she was prone to Depression and Anxiety. He said the plaintiff had longstanding psychiatric problems involving anxiety and depression. He said the transport accident is contributing to her psychiatric problems but he did not explain his reasoning. He was provided with a report from Associate Professor Mendelson, who stated that her psychiatric problems are now not due to the transport accident. Dr Strauss did not agree with Associate Professor Mendelson’s opinion. Dr Strauss said he still believed the plaintiff had a psychiatric impairment but half was unrelated to the transport accident and half related to the transport accident. He concluded that the plaintiff would never work again and her prognosis was guarded.
115 In October 2015, the plaintiff was referred by her general practitioner to Dr Emma Scamps for neuropsychological review and for possibly early dementia or other neuropsychological issues. Dr Scamps obtained a history from the plaintiff that, as a result of the transport accident, she was diagnosed with concussion and reported a blackout. Since then, she has been diagnosed with a PTSD, Anxiety/Depression and agoraphobia. The plaintiff reported to Dr Scamps that she did not have any significant medical history other than concussion, and she did not have any previous psychiatric history. She also reported that she was a victim of the home invasion where she was not physically injured but took time off work to recover.
116 Dr Scamps reported the plaintiff did not pass any of the validity tests (“effort tasks”) and concluded that this was a very unusual result. She suggested that the scores could not be used as a measure of the plaintiff’s level of functioning. Dr Scamps said that based on the plaintiff’s description of the transport accident, it is difficult to determine whether there was any loss of consciousness given there was no medical assistance at the scene. Further, it was difficult to explain her claimed “blackout”, other than she may have suffered post-traumatic amnesia as the result of a mild Traumatic Brain Injury (TBI)/concussion, which resolved a few hours later. Dr Scamps said the majority of cases of mild TBI recover within a three to twelve-month period. Studies have shown that deficits generally persist if a patient sustains a psychological disorder in conjunction with a mild TBI.[72] Dr Scamps said it was highly unlikely that the plaintiff is continuing to experience cognitive impairments as the result of a brain injury from the transport accident.
[72]JCB 158H
117 Dr Scamps concluded that the plaintiff appears to be functioning relatively well within the community, although she is impacted by her depression and psychiatric state. She stated that the results of the assessment are not consistent with her relatively high level of functioning of the plaintiff at home and in the community. I accept that Dr Scamps did not have an accurate psychiatric history of the plaintiff and her report made no reference to prescribed medication for any type of diagnosed psychiatric illness.
118 I accept that the state of the current psychiatric evidence is that one psychiatrist says the plaintiff has a Chronic Anxiety Disorder for which she was initially treated in 2003 and for which she has currently no diagnosable mental disorder due to the transport accident. The other view is that she currently has PTSD symptoms and is prone to Depression and Anxiety but only half of her current psychiatric impairment is related to the transport accident. At best, the psychiatric evidence is that only 50 per cent of her current consequences are related to the transport accident.
119 As opposed to the psychiatric evidence, the physical doctors[73] expressed a view that the plaintiff presented with a Chronic Pain Disorder, which was psychologically based. The difficulty with this view is that it is not supported by a current psychiatrist and some of the opinions of the physical doctors are not current. In particular, Mr Simm last reviewed the plaintiff in August 2013 and Dr Vanderzeil in September 2013. I consider these views to be too outdated to be of any relevance, given that I must make my assessment of the plaintiff at the time of the hearing.
[73]Dr Vanderzeil, Dr Thomas, Mr Simm, Mr O’Brien and Mr Morrison
120 The most recent of those views is that of Dr Thomas in November 2014, where he said the plaintiff presented “in a chaotic manner”, which makes the interpretation of the history problematic.[74] He said:
“… When I previously saw her, I thought that she was a credible witness but I am not convinced that this is the case now and I am unclear as to whether this is due to a cognitive decline in the interim since I last saw her and I think this needs to be further explored.”[75]
[74]JCB 150
[75]JCB 151
121 Dr Thomas was not made aware of the findings of the neuropsychologist, Dr Scamps’ assessment, where she discounted that the plaintiff was experiencing cognitive impairment as a result of the transport accident. She said the results were inconsistent with the plaintiff’s relatively high level of functioning in the community.
122 In this case, the onus is upon the plaintiff to satisfy the Court, on the balance of probabilities, that her current mental state is as a result of the transport accident.
123 Based on the state of the current medical evidence, at best, the plaintiff’s position is that she has limited support from Dr Strauss, in that he considers her current mental condition of post-traumatic stress symptoms and proneness to Depression and Anxiety can be attributable to the transport accident to the extent of 50 per cent.
124 Even if I were to accept Dr Strauss’ view, the issue would be the extent to which the plaintiff’s current mental condition was related to the transport accident and whether the consequences were “severe”.
125 The evidence is that the plaintiff suffered a pre-existing mental condition.
Aggravation injury
126 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJ, in Petkovski v Galletti,[76] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[77]
“… A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment ….”
[76][1994] 1 VR 436
[77](Supra) at 443
127 Where the injury for which compensation claimed is an aggravation injury, the additional impairment must itself involve a permanent severe mental or permanent severe behavioural disturbance or disorder.
128 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident was “severe”.
Pre-transport accident state
129 The medical evidence is that, prior to the transport accident, the plaintiff suffered from longstanding anxiety, insomnia and PTSD, which she was being treated for by her general practitioner from 2003 for anxiety issues with medication and since 2007, she was treated for pre-existing insomnia. Further, she had a PTSD and an exacerbation of her Anxiety Disorder related to a home invasion in October 2008. In addition, in 2008, the plaintiff made application to VOCAT and had been provided with ten sessions of psychological counselling. She was housebound and unable to work for six months. In the six months prior to the transport accident, Dr Khoo was prescribing medication for the plaintiff’s PTSD, Anxiety and insomnia.
130 I accept that the plaintiff suffered Anxiety, insomnia and PTSD prior to the transport accident, for which she received treatment and was unable to work for periods.
131 It is now necessary for me to consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the transport accident is “severe”. I turn now to consider the consequences to this particular plaintiff.
Work
132 In respect to employment, it was not in issue that the plaintiff had been in sustained full-time employment with the VGS for many years until she ceased work with VGS in 2007. The plaintiff reported to a number of the medical witnesses that she was a conscientious employee who worked as a legal secretary and derived great satisfaction from her work. The plaintiff’s evidence to the Court, and to some of the medical witnesses, was that she misses work terribly and that she now feels hopeless and helpless.
133 The evidence was unclear as to the extent the plaintiff worked after she accepted a redundancy from VGS in 2007. The plaintiff’s evidence was that she worked for different legal firms: DLA Phillips Fox, Wisewoulds, Russell Kennedy and Middletons. They were short-term contracts, ranging from two weeks up to four months. She usually worked for three months or longer.
134 The evidence was that the plaintiff had been off work for at least six months following the home invasion in October 2008 due to her mental condition. The plaintiff’s evidence was that she returned to casual work after the six months off. In May 2009, she said she worked with Nowicki Carbone for “a couple of weeks”.[78] In June 2009, she reported working with Trindale Farr & Pill for “two weeks or so”[79] and from 7 July 2009, she was employed with Velos & Velos. There was no independent evidence to confirm the plaintiff’s evidence as to the contract work and periods for which she worked, other than the period with Velos & Velos.
[78]JCB 237
[79]JCB 237
135 I accept that the plaintiff had worked three days prior to the transport accident as a legal secretary on a casual basis with Velos & Velos. The evidence was that, within a few days of her commencing work at Velos & Velos, her then employer formed the view that she was not suitable for the position because of fundamental mistakes. Ms Velos, manager, believed her skills were not like those as set out in her résumé.[80]
[80]Affidavit of Angela Velos – JCB 42
136 I accept the evidence is that the plaintiff performed some work after leaving VGS, which was temporary and in short-term contract roles. There was no independent evidence that it was sustained employment. After the home invasion, she was off work for six months because of her mental condition. While the plaintiff reported to a number of medical witnesses and to the Court that she was committed to her work as a legal secretary, that her work was challenging and that she was highly motivated to return to work,[81] I consider that was not the position before the transport accident. I accept that at the time of the transport accident, her work capacity was at best an attempt to return to work as a casual secretary.
[81]JCB 57
137 The current evidence as to the plaintiff’s mental condition is that she cannot return to employment. This view was expressed by Dr Thomas and Dr Strauss. Dr Lukacs was aware the plaintiff was not working and of the grief and loss she reported due to loss of employment. He did not specifically say that she could not return to work but noted her psychiatric prognosis was generally guarded. The evidence was that she had not been in full-time work since she left VGS in 2007, which was in large part a result of her mental health condition prior to the transport accident.
138 I accept that as a result of the transport accident, the plaintiff has suffered the difference between a capacity to attempt to return to work as a casual secretary and no capacity for employment. This is a consequence at the middle end of the scale, which I can take into account.
Medication
139 I accept that since 2003, prior to the transport accident, the plaintiff was being treated for anxiety issues and prescribed medication. Since 2007, she suffered insomnia, for which she was prescribed Temazepam on an intermittent basis. In early 2008, she was being prescribed medication and receiving treatment for insomnia. In July 2008, she was diagnosed with Anxiety regarding a court case for her daughter and was prescribed Valium and Temazepam. In 2008, she reported suffering Anxiety as a result of the home invasion. She sought treatment from Dr Khoo in relation to Anxiety and PTSD on 14 January, 14 March, 22 April and 5 June 2009. Throughout the above period, she was being treated with Valium and Temazepam.
140 The current evidence relating to medication in respect to the plaintiff’s mental condition is vague. In 2014, she reported to Dr Strauss that she was taking five Panadeine Forte per day, as well as Lyrica, one Valium per day, Zoloft in therapeutic dosages and sometimes sedatives.
141 In November 2014, the plaintiff reported to Associate Professor Mendelson that she was taking Zoloft, 100 milligrams, and Valium, 5 milligrams in the afternoon. She took one Stilnox at night to help her sleep, and Lyrica, 75 milligrams at night for pain relief.
142 In 2015, Dr Morrison reported that the plaintiff was taking medication for PTSD and Depression but did not provide details.
143 The medical records of the Dyson Family Practice at Christie’s Beach Medical Centre confirm that until September 2015, the plaintiff was prescribed Zoloft, 100 milligrams, Panadeine Forte and Temazepam.
144 In October 2015, the plaintiff reported to Dr Scamps that she was taking Panadeine Forte but was not being prescribed Stilnox or Endone.
145 In November 2015, Dr Lukacs reported that the plaintiff was taking Cymbalta, 30 milligrams, with the option to further adjust the dosage in combination with the use of Panadeine Forte, Temazepam and Stilnox. He suggested that there was an option to adjust her anti-depressant medication.
146 In the plaintiff’s most recent affidavit dated 14 October 2015, she deposed she was taking sleeping tablets at night. In cross-examination, the plaintiff agreed that she was being prescribed three Panadeine Forte per day. I accept that the Lyrica and Panadeine Forte are more likely to be for her physical condition and not her mental condition. I accept that Zoloft and Cymbalta are antidepressant medication for her mental condition.
147 I accept that the plaintiff is currently taking medication of Cymbalta, 30 milligrams, with the option to further adjust the dosage in combination with the use of Temazepam and Stilnox. The medical records confirm that, prior to the transport accident, the plaintiff was prescribed Diazepam for Anxiety issues and Temazepam for insomnia. Since the transport accident, she has been prescribed antidepressant medication, as well as Diazepam. I accept there was an increase in the levels of medication as a result of the transport accident. Based on the current evidence, I am satisfied that there is a change in the level of medication, together with a requirement to use antidepressant medication. I accept the change is at the in the medium to higher end of the scale. This is a consequence which I take into account.
Treatment
148 Immediately prior to the transport accident, Dr Khoo’s records confirm that the plaintiff was receiving psychological counselling. The plaintiff was consulting her general practitioner intermittently for her mental condition.
149 As a result of the transport accident, the plaintiff received treatment from psychiatrists, psychologists and her general practitioner.
150 However, there is no evidence that the plaintiff is currently receiving psychiatric or psychological treatment. The plaintiff’s evidence was that she saw Dr Lukacs once in November 2015. Whilst she did express an intention in Court to see him upon her return to South Australia, she conceded that she had not yet made another appointment.[82] Dr Lukacs said that he made available further psychiatric assistance on an “as and if needed basis”.
[82]T8, L10–13
151 Associate Professor Mendelson said she did not require any psychiatric or psychological treatment. Most of the other witnesses suggested that she would benefit from treatment.
152 Dr Strauss suggested she would benefit from consulting a psychiatrist or psychologist every month or two. Mr Simm recommended treatment for her chronic pain illness and psychological disturbance. Currently, the treatment the plaintiff receives is limited to monthly attendances with her general practitioner. This seems to be similar to the treatment she was receiving at the time of the transport accident. Accordingly, I accept that there is little change in the plaintiff’s treatment, which I take into account.
Cognitive impairment
153 Associate Professor Mendelson took the view that the plaintiff might have developed cognitive impairment, which required further assessment. However, he did not relate this to the transport accident.
154 Dr Scamps conducted a neuropsychological assessment and reported that the plaintiff did not pass any of the validity tests and that the scores could not be used as a measure of her level of cognitive functioning.[83]
[83]Dr Scamps concluded that it was highly unlikely that the plaintiff is continuing to experience cognitive impairment as the result of a brain injury from the transport accident.
155 The plaintiff’s evidence was that she failed the tests because her “brain is going”, she cannot do things anymore and that she had concussion.[84]
[84]T78
156 As a result of Dr Scamps’ assessment of the validity testing, I do not consider cognitive impairment as a consequence of the transport accident.
Activities of daily living
157 The plaintiff’s evidence was that she is unable to do much heavy housework but is able to cook and perform some of the lighter housework. She finds it difficult to manage tasks around the house, such as vacuuming and cleaning. The plaintiff told the Court that she often relies on her daughters to do the cooking, washing and gardening.[85] She still drives since the transport accident but quietly, and she keeps to the left.[86] She can shop as long as she is careful in the way she lifts things off the shelves. However, the plaintiff reported to Dr Lukacs that these consequences related to her physical injuries. As I am considering the consequences of her mental condition, I cannot take these consequences into account.
[85]T80
[86]T80
158 A number of the medical witnesses commented upon the plaintiff’s ability to function relatively well within the community and her ability to drive without incident. The plaintiff reported to medical witnesses that she was a “very careful driver” and “some panic attacks” mainly as a passenger. She is independent with all her activities of daily living. She and her daughter take turns with the cooking and she does some shopping.
159 I am not satisfied that there has been a change in the plaintiff’s activities of daily living as a result of the transport accident, which are a consequence of her mental condition.
Sleep
160 The plaintiff’s evidence is that her sleep pattern is affected by the transport accident. Currently, she takes Stilnox to assist with sleep. The plaintiff reported this consequence to a number of the medical witnesses. In November 2015, Dr Lukacs suggested that she be trialled with Neulactil, 2.5 milligrams to 10 milligrams at night, adjusted depending on response/tolerance to attempts to settle her sleep pattern and conveyed emotional agitation. However, the evidence is that, prior to the transport accident in 2007, the plaintiff was reporting insomnia to Dr Khoo and was being prescribed medication on an intermittent basis. I accept that the plaintiff may be requiring sleep medication on a more regular basis and I take this into account as a consequence.
Loss of memory/loss of concentration
161 The plaintiff reported to a number of the medical practitioners complaints about loss of memory and loss of the ability to concentrate. However, there was no medical evidence to suggest that this was related to the transport accident. Accordingly, this is not a consequence which I can take into account.
Conclusion
162 Based on my above assessment, I accept that, as a result of the transport accident, there have been some consequences to this plaintiff of a mental and behavioural disorder. However, the word “severe” in the definition of the Act has been said to be a word of “stronger force” than the word “serious”. The evidence does not disclose symptoms and consequences seen in mental disturbances at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication or symptoms, including suicidal ideation or attempts and psychotic symptoms.[87]
[87]As stated by Judge O’Neill in Papamanos v Commonwealth Bank of Australia [2013] VCC 1491, and adopted by the Court of Appeal
163 Taking all of the evidence into account, I am not satisfied that the plaintiff has established that the consequences of her mental and behavioural disorders could be reasonably described as more than “serious” to the extent of being “severe” as defined in s93(7)(c) of the Act. In my experience, the consequences to this plaintiff do not meet the test of “severe”. I accept that the plaintiff has suffered a mental and behavioural disorder as a result of the transport accident. I accept the injury has had consequences to her which are significant or marked. I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
164 Accordingly, I dismiss the plaintiff’s application in respect to the mental or behavioural disturbance or disorder.
165 As I have rejected the plaintiff’s application in respect to the physical injury and the mental or behavioural disturbance or disorders, I will dismiss the application.
- - -
Serious injury applications seeking leave to commence a claim for damages under the provisions of the Transport Accident Act 1986
1 Applications of this type are governed by the provisions of s93(4)(d) of the Transport Accident Act 1986 (as amended) (the Act).
2 Self-represented applicants seeking leave to commence a proceeding claiming damages pursuant to the provisions of s93 of the Act must ensure that they are familiar with the content of that section of the Act including the relevant definitions to be found in s3 of the Act.
3 An application for leave to commence a claim to compensate for the pain and suffering and loss of enjoyment of life aspects of:
· A physical injury is governed by the obligation of the applicant to establish that she/he has suffered a serious injury in accordance with the definition of “serious injury[88] which requires the plaintiff to prove that she/he has suffered a “serious long term impairment or loss of a body function”; or alternatively;
[88]Subsection (37)(a)
· A disfigurement is governed by the obligation of the applicant to establish that she/he has suffered permanent serious disfigurement; or alternatively;
· An emotional or psychiatric injury is governed by the obligation of the applicant to establish that she/he has suffered severe long term mental or severe long term behavioural disturbance or disorder; or alternatively
4 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she/he has suffered an injury as the result of a transport accident;
(b) The impairment of body function arising from the injury must be long term;
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) The impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) The Act provides that the assessment of serious injury is to be made at the time of the hearing of the application.
5 In such an application the applicant must adduce evidence to the Court which satisfies the Court on the balance of probabilities as to the following:
· The injury and the impairment said to be the product of the injury;
· That the impairment is long term;
· That the consequences for the plaintiff are such as to satisfy the description of being more than “significant” or “marked” and as being at least “very considerable”;
· If an injury was occasioned by the relevant transport accident to more than a single body function, the plaintiff must adduce evidence which establishes on the balance of probabilities the effect of the transport accident upon each separate body function;
· If the injury occasioned by the relevant transport accident involves merely the making worse of a pre-existing condition, the plaintiff must adduce evidence which establishes on the balance of probabilities the nature of the consequences and disability associated with the pre-existing condition and the effect which the injury occasioned by the relevant transport has had upon the pre-existing condition.
· If the applicant seeks leave to commence a proceeding in respect of injuries sustained in more than one transport accident, the applicant must satisfy the court that the effect of each individual transport accident, when considered separately from any other transport accident, is such that it is responsible for causing a serious injury to the applicant.
The nature and management of a serious injury hearing
6 A serious injury hearing is commenced by the applicant filing an originating motion under the provisions of Order 45 of the County Court Civil Procedure Rules.[89]
[89]The Rules may be accessed by visiting the County Court website
7 By reason of the operation of Order 45.02, the evidence to be relied upon by the applicant in a serious injury proceeding must be set out in an affidavit sworn by the applicant which sets out the facts which the applicant relies upon asserting that her/his position that the court should grant the leave which the applicant seeks in the application.
8 It is essential that any affidavit relied upon by an applicant in a serious injury application sets out the consequences to the applicant of each impairment of body function the subject of the application and identifies those consequences as they affect the applicant’s lifestyle (and if relevant, earning capacity), as at the date of the hearing of the application.
9 In preparing the affidavit to be relied upon the applicant should address all the consequences of each impairment of body function the subject of the application on the applicant’s life, topics such as the effect which the relevant impairment has upon the applicant’s:
· capacity to work and level of income
· levels of pain
· need to employ medication to manage symptoms
· need for medical treatment to manage symptoms
· pattern of sleep
· general mobility
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication)
· capacity for self-care and self-management
· ability to perform household and family duties
· ability to engage in recreational activities, hobbies or other pastimes
· ability to participate in social activities
· sexual life; and
· general enjoyment of life
should be described insofar as they are relevant.[90]
[90]This list is presented to assist an applicant in the preparation of an affidavit. It is not meant in any sense to be an exhaustive statement of the topics which should be dealt with in an affidavit. The applicant should ensure that all the consequences associated with the relevant impairment of body function which are relevant to the applicant are set out in the affidavit.
10 In preparing such an affidavit, the applicant must ensure that each aspect of the various proofs necessary for the applicant to establish her/his entitlement to leave to commence a proceeding claiming damages for:
(i) the pain and suffering consequences; and
(ii) the loss of earning capacity consequences (if relevant)
are set out in sufficient detail to comply with the obligation of the applicant to satisfy the Court on the balance of probabilities that the Court should grant the leave the subject of the application.
11 Medical evidence as to the nature and consequences of the injury or medical condition which gives rise to each impairment of body function the subject of the application must be set out in medical reports authored by the medical practitioners whose evidence is sought to be relied upon by the applicant.
12 It is essential the content of medical reports relied upon by the applicant is such that it establishes:
· the nature of each impairment of body function relied upon by the applicant
· the relevant consequences of each such impairment of body function as at the time of the hearing
· the permanence of the condition resulting from each such impairment of body function
so as to make good the obligation of the applicant to establish on the balance of probabilities her/his entitlement to the leave which is sought.
13 Subject to:
· the author of any medical report relied upon by the applicant being qualified to express the opinion the subject of the report; and
· the respondent to the application failing to give notice that the author of the report attend the Court for cross examination
the report will be admitted as evidence in the application.
14 A self-represented litigant managing a serious injury application should be aware of the relevant provisions of:
· The Damages and Compensation List (the Application, Defamation, Family Property, General and Serious Injury Divisions) Practice Note No PNCI 6-2013.[91]
[91]The Practice Note is available by accessing the County Court website.
· Order 33 of the Rules of the Court which applies to the arrangement of medical examinations for the attendance of an applicant in a serious injury application and the service and admissibility of medical and hospital reports in such an application.[92]
[92]The Rules of the Court, including the provision of Order 33, are available by accessing the County Court website.
15 In order to allow the Court access to the most recent evidence as to the consequences of each impairment relied upon by the applicant[93] for leave, the practice note provides as follows:
[93]See the Damages and Compensation List (the Application, Defamation, Family Property, General and Serious Injury Divisions) Practice Note No PNCI 6-2013, the content of which may be accessed on the County Court website.
“In the course of evidence-in-chief, the plaintiff will be permitted to give brief evidence as to the consequences of injury from the date of the last affidavit to the date of the hearing, and as to any other matters in respect of which leave is given by the trial judge. In granting leave, the trial judge will consider whether any additional evidence would change the nature of the application to be met by the defendant and whether the defendant would thereby be required to call evidence in response.”
16 It is essential that the applicant appreciates that it is her/his obligation to provide the respondent to a serious injury application with sufficient notice of the facts being relied upon by the applicant so as to allow the respondent the opportunity to challenge such facts by:
· Cross-examining the maker of any affidavit which is relied upon by the applicant
·Cross-examining the author of any medical report which is relied upon by the applicant
·Adducing evidence in response to that relied upon by the applicant
17 Any failure to do so by an applicant may result in the Court making an order:
·That the applicant not be entitled to rely on the evidence
·The hearing be adjourned with or without a costs order being made against the applicant.
18 If the Court has made an order fixing a time table for the service of material to be relied upon by the parties in the course of a serious injury application it is essential that the time table be complied with. The failure to do so may result in an order for costs being made against the party in default and or the adjournment of the hearing of the application.
The role of the Judge in managing a proceeding conducted by a self-represented litigant
· The judge has a duty to ensure the trial is fair;
· The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties.
19 Most self-represented persons lack two qualities that competent lawyers possess – legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance in order to ensure the litigant is treated equally before the law and has equal access to justice.
20 The scope of the assistance which a Judge should provide to a self-represented litigant depends on the particular litigant and the nature of the case. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.
21 The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate.
22 Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented.
23 The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.
24 Once a proceeding has been commenced the court will fix a timetable setting out the dates for the completion of any pre-trial procedures.
25 All litigation which is being managed by a self-represented litigant will be the subject of a number of pre-trial directions the purpose of ensuring that the proceeding is being prepared such that it will be ready to proceed on trial date fixed for the hearing. These directions hearings will be managed by a Judge. The parties will be notified as to the date upon which a direction hearing is to be held and each party must attend the hearing on the appointed date and time. A repeated and unexplained failure by a party to attend a directions hearing may result in the proceeding being dismissed.
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