Bryan v Transport Accident Commission

[2014] VCC 102

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-12-06093

MELISSA MARY BRYAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 February 2014
DATE OF JUDGMENT:	18 February 2014
CASE MAY BE CITED AS:	Bryan v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 102

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:             Damages – transport accident – serious injury – impairment of jaw and psychiatric impairment

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:            Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; West v Pac-Rim Printing Pty Ltd [2003] VSCA 68; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267

Judgment:                 Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Wolski	Nowicki Carbone
For the Defendant	Mr S Smith with Mr C Sullivan	Hall & Wilcox

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 25 May 2009 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the jaw.

4       Application was also made pursuant to subparagraph (c) in relation to a psychiatric impairment. 

5       The enquiry under subparagraph (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.

6       The serious injury defined by subparagraph (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: see Richards v Wylie.[1]

[1](2000) 1 VR 79

7       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak.[2]

[2](1992) 2 VR 129 at 140-1

8       The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[3][1998] 3 VR 833

[4](1995) 21 MVR 314

9       Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

[5]Supra

10      I accept that a Chronic Pain Syndrome can result in impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[6]

[6][2005] VSCA 227

11      The plaintiff relied on two affidavits and gave viva voce evidence.  She was cross-examined.  The plaintiff’s general practitioner from 2010 to 2012, Dr Chai, was required for cross-examination, as was her treating psychiatrist, Dr Rigby.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

12      The plaintiff is presently aged twenty six, having been born in December 1987.

13      After Year 12, the plaintiff commenced part time work as a pharmacy assistant and, at the time of the accident, was working full time in that role.

14      On the said date, the plaintiff was travelling in a vehicle as a backseat passenger on the passenger side with her father and cousin, when a vehicle turning right failed to give way to their vehicle (“the accident”).

15      The plaintiff was thrown around in the back seat and her face collided with the seat in front of her.  When she recovered from shock, she was experiencing acute pain in her jaw and face.

16      The plaintiff checked what had happened to her father and cousin.  She was experiencing horrific pain in her jaw and face; however, she called an ambulance, which arrived a short time later, followed by the police.

17      The plaintiff was taken to hospital in her brother’s vehicle, while her father was taken by ambulance.  She underwent a number of scans at The Royal Melbourne Hospital.  Whilst in Emergency for a couple of hours, the plaintiff was given various analgesics.  She was told x-rays were all clear and she was discharged and returned home to rest.[7]

[7]Transcript “T”47

18      The plaintiff consulted her dentist, who examined her mouth and teeth and advised her she needed to see a specialist for jaw pain.

19      The plaintiff was referred to a facial specialist, Dr Marvan.  She fitted the plaintiff’s mouth with a facial splint, which she has been using since October 2009 and wears every night when she sleeps.

20      The plaintiff was referred by her general practitioner to a psychologist, Mr Boultadakis, whom she first saw in November 2009, and ceased seeing in 2010. 

21      The plaintiff was also referred by her general practitioner to a physiotherapist, Ms Scott, who massaged both sides of her face and jawline with a machine.  The physiotherapist also worked on the plaintiff’s neck with gentle massage.  As the physiotherapist thought her treatment was not helping, she suggested the plaintiff be referred to a chiropractor.

22      As of her first affidavit in July 2010, the plaintiff was taking Avanza, Stilnox, Xanax, Paxam, Axit 30, Valium, Temazepam, Indocid, Mersyndol, Nurofen, Panadeine Forte and Digesic.

23      The plaintiff then had poor movement in her jaw on opening and closing, and lateral side to side movements.  In particular, she had difficulty and pain when she breathed, yawned, sneezed and ate.  Chewing food and gum had become almost impossible.  The plaintiff had difficulty biting into solid foods due to restricted movement and jaw pain.  It took her a lot longer to eat than it did prior to the accident.

24      The plaintiff found, as a result of her jaw restriction, she clenched and grinded the muscles as they would become more rigid and tight.  The clenching tended to cause her great discomfort and pain in her teeth and along the jawline.  Her teeth had become more sensitive.

25      As a result of her jaw and facial injuries, the plaintiff suffered from headaches, which were aggravated by the tension and clenching of her jaw.  Pain seemed to radiate into her temples and down into the right side of her neck.

26      The plaintiff had difficulty talking since the accident as she found it difficult opening her mouth to talk, and avoided doing so.

27      The plaintiff was cross-examined for in excess of two hours.  She described then experiencing the usual jaw pain.  She was a little more anxious and was grinding her teeth.[8]

[8]T69

28      Prior to the accident, the plaintiff walked everyday; however, since then, she had found it difficult to get motivated to go walking as she used to.  She previously walked the dogs for at least thirty minutes a day.  The plaintiff’s jaw pain does not put her in a very good mood which stops her from doing things she enjoys in life such as walking.[9]

[9]T70

29      Since the accident, the plaintiff had sensed a change in her personality, being generally much more angry, depressed and irritable.  She had been diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and was regularly reminded of the accident by daily occurrences.  She was at times quite anxious and nervous and experienced psychological attacks since the frightful accident.  She had tried to use relaxation techniques to control her fear and help her to remain calm.

30      Since the accident, the plaintiff had suffered depression and consulted a psychologist regularly.  She was generally sadder and more upset, and at times felt worthless and was generally uninterested in leaving the confines of her house.

31      In her first affidavit, the plaintiff deposed to having gained a significant amount of weight since the accident and was self conscious about her appearance and the way she looked.  She had gained about 10 kilograms and that made her depressed. 

32      The plaintiff had difficulty maintaining a high level of oral and personal hygiene as prior to the accident.  Daily activities such as brushing her teeth and using a mouthwash were almost impossible due to the lack of movement in her mouth and jaw.  She often experienced pain while attempting to do those tasks and had developed ulcers on her gums and in her mouth as she had been unable to properly attend to hygiene.

33      Prior to the accident, the plaintiff helped her parents around the house.  Since the accident, her mother needed more help as her father was also injured; however, the plaintiff found it difficult to help as a result of her own injuries.

34      The plaintiff had difficulty getting a good night’s sleep since the accident.  She had poor sleep patterns due to the mouth splint that she had not adapted to and found it very uncomfortable when she lay her cheek on the pillow.  She had difficulties sleeping on her side and woke at least three to four times every night.  She found she needed to take medication to help her with pain and to help her sleep.

35      During the night, the plaintiff often woke up, having had flashbacks of the accident.  She remembered the accident moment for moment and that haunted her almost every day.  Those flashbacks made it difficult for her to get back to sleep and she often lay awake for hours, unable to get back to sleep.

36      As a result of poor sleep patterns, the plaintiff tended to wake up in the morning after only a few hours’ sleep, feeling tired and sleep deprived, and found it hard to concentrate throughout the following day.

37      Prior to the accident, the plaintiff loved playing tennis but had lacked the motivation to play even a single game since.  Due to her depression, she could not be bothered trying as she knew she would suffer pain and discomfort while playing, whether it be psychological or physical.

38      The plaintiff no longer enjoyed going shopping or being out and socialising with people.  She now does not have a coffee with a friend as being in pain makes her very angry and aggressive and she would have problems talking.[10]

[10]T70

39      Since the accident, the plaintiff generally avoided most social occasions with family or friends as she had become more embarrassed by her appearance and become antisocial due to depression, anxiety and anger.  She found that she sweated profusely which was embarrassing.

40      The plaintiff avoided social situations because of her anxiety, her depression and her constant jaw pain.[11]

[11]T98

41      Prior to the accident, the plaintiff often went camping around Kinglake.  However, since the accident, she had not been camping, and that upset her, because she knew her lifestyle had changed considerably since her injuries.

42      The plaintiff was dating before the accident and had been in a relationship for four years and was satisfied with that area of her life.  However, due to her accident, she was embarrassed and had little desire to go out on dates.  She lacked self esteem and confidence since gaining weight and being involved in the accident. 

43      The plaintiff had been reluctant to get a drivers licence and lacked confidence in her own ability, at that stage only being prepared to be a passenger in her mother’s vehicle and even then she was nervous and uncontrollably alert.  She was not sure then whether she would get her licence in the future.

44      As a result of taking medication, the plaintiff often suffered with constipation, abdominal discomfort and pain, vomiting and drowsiness.  She relied on painkilling and psychologically balancing medication since her injury.

45      When at work, the plaintiff required more flexibility, as she found it difficult to talk to customers for prolonged periods due to her mouth and jaw pain and she was also generally depressed and not in the mood to talk.

46      The plaintiff commenced employment with Jenny Macklin Pharmacy in about 2006; however, her capacity for work had been ruined by her physical and psychological accident injuries.  She was off work for about three weeks after the accident, before returning on modified duties. 

47      Before the accident, the plaintiff was employed part time, working on average 88 hours a fortnight.  Due to her injuries, her work hours had been reduced to about 50 hours a fortnight, which had significantly reduced her fortnightly wage.

48      Post and pre accident, the plaintiff earned $17.00 an hour; however, her overall income had diminished due to the reduction of work hours.  In the year of the accident, she earned about $45,000 gross.

49      In cross-examination, the plaintiff agreed until the year of the accident she worked less hours as she was young, living at home and did not need to work long hours.  She was enjoying her social life.

50      However, in the year of the accident, the plaintiff was working full time, about 40 to 44 hours per week and being paid as an adult, whereas in earlier years, she was paid junior rates.[12]

[12]T20

51      In the year of the accident, the plaintiff’s job at the pharmacy involved serving customers, stocking shelves, answering the telephones and giving customers information.  Her accident injury limited her ability to use her jaw for a period of time, which posed a challenge, as she was required to answer telephones and speak to customers, and, as a result, her injury had significantly affected her ability to be successful at work.

52      In her second affidavit sworn in December 2013, the plaintiff confirmed she continued to suffer her earlier problems.

53      In cross-examination, the plaintiff agreed she did not mention in that affidavit that she had lost weight and had been able to get her drivers licence since swearing her first affidavit.  She did not think about these issues when swearing her affidavit.  The plaintiff denied she was intending to create an impression her condition was worse by not referring to these improvements.

54      The plaintiff thought the affidavit process was very overwhelming.  She did not think of everything.  “It was nerve wracking.”[13]

[13]T82

55      Whilst having obtained her licence, the plaintiff was still very nervous driving.[14] She still felt self conscious about her appearance even though her appearance had not changed.[15]

[14]T13

[15]T10

56      The plaintiff has been camping four or five times since she swore her first affidavit, whereas before the accident she went camping all the time.  She denied her recent camping indicated an improvement in her mental state since 2010.  It was just she had had some better days and she wanted to attempt it.  When she has depression, “nothing feels the same”.[16]

[16]T80

57      Before the accident, the plaintiff stopped attending counselling in late 2010 because there was nothing further that could be done and the counsellor suggested the plaintiff see a psychiatrist, which she did.

58      The plaintiff deposed she has not had any real improvement in her symptoms since swearing her first affidavit.

59      The plaintiff agreed that in 2010 she started to feel like the counselling and treatment was helping but that improvement had not necessarily continued.  However, she felt constantly the same every day.  She has become accustomed to it.[17]

[17]T44

60      In early 2011, there was a concern the plaintiff’s father may have had MS.  He had not required neck surgery.  He was becoming very depressed as a result of his injuries.  The plaintiff and other family members assisted him around the home.  This impacted on the plaintiff but it was not a significant part of her depression – “It adds to it but it’s not significantly the main reason”.[18] 

[18]T39

61      The plaintiff continues to attend Dr Rees, general practitioner, on an ‘as needs’ basis and she prescribes pain medication.  The plaintiff also sees Dr Rigby, psychiatrist, every two to three weeks, and Dr Marvan, specialist in oral medicine, every three months.  She has acupuncture once a month.

62      Before she attended Dr Rees, the plaintiff saw Dr Chai.  She stopped seeing him because he thought she was a “drug seeker” as she wanted benzodiazepines which he would not prescribe.  He also told her she should still not be in this kind of pain and she felt he did not believe her.[19]

[19]T36

63      The plaintiff was then in desperate need and she was very upset by her “chronic pain, depression, anxiety, her whole thing”.  It was about her, not about her father necessarily.  She was suicidal.[20]

[20]T37

64      The plaintiff now also sees Dr Alatan, who practises next door to the chemist where the plaintiff works.  She prescribes the occasional sleeping tablet and the plaintiff sees her once or twice a month.

65      The plaintiff first saw Dr Tomlinson for severe migraines and headaches about a year ago.  He prescribed Sandomigran which the plaintiff took for a limited times, as it did not seem to be making any difference.

66      The plaintiff currently takes up to two Panadeine Forte a day and four on a bad day; Endep, 50 to 100 milligrams at night; Seroquel XR, 50 milligrams in the morning and between 25 and 75 milligrams of Seroquel at night.  Occasionally she also takes valium or Murelax.  About twice a week, she also takes Imovane or Temazepam, a sleeping tablet.

67      The plaintiff has a severe or bad day probably three times a week.  On those days she takes more medication.  If she is not in pain, she does not take Panadeine Forte.[21]

[21]T72

68      Dr Rigby treats the plaintiff for her depression, anxiety and PTSD.  He has also trialled her on various psychotropic medications in an attempt to manage her post-accident behavioural problems such as controlling her anger and irritability.

69      Dr Marvan has regularly adjusted the plaintiff’s bite splint which she continues to wear every night.  It is like a mouthguard which she wears on her lower teeth.  Dr Marvan prescribes anti-inflammatories, opiate and non opiate medication in conjunction with the plaintiff’s general practitioner.

70      The plaintiff continues to have pain on the right side of her face and bilateral jaw pain, worse on the right, which at times is also associated with severe headaches, migraines and nausea.

71      Sometimes the plaintiff’s pain radiates into her neck and lower back and it is exacerbated by stress and fatigue.  She continues to experience pain on eating, yawning, sneezing and breathing.

72      The plaintiff’s right-sided jaw pain radiates up into her head and then it radiates to the other side.  The site of the accident impact is the main sore area.[22]

[22]T36

73      At its worst, the plaintiff’s jaw pain is 10 out of 10, at least three days a week.

74      The plaintiff continues to feel depressed and anxious.  She is often tearful, withdrawn and has lost interest in activities that she previously enjoyed.  She is much less motivated than she used to be. 

75      The plaintiff has mild and severe panic attacks, with a severe attack about twice a week, during which she experiences palpitations, a sense of suffocation and feels sweaty and overwhelmed, lasting from two to three minutes to half a day.

76      The plaintiff continues to get headaches weekly and migraines every two to three weeks which last from a period of hours to days.  With a bad migraine, she needs to put herself to bed in a dark room or take Panadeine Forte or other medication.  She has had to stay home from work or leave work when she has experienced such a migraine.

77      The plaintiff has found her maximum mouth opening has decreased since swearing her earlier affidavit.  Her pain-free mouth opening has also decreased and, as a result, it is even harder to sneeze, eat or talk for long periods.

78      The plaintiff’s sleep remains disrupted as a result of ongoing pain, worry and depression.  She grinds her teeth during sleep.  She has bad dreams about four times a week, waking virtually every hour, and has difficulty getting back to sleep.  She consequently feels very lethargic and fatigued the next day.

79      Since the accident, the plaintiff has become irritable and short tempered, not having been so before.  Those traits have resulted in significant problems in her personal relationships with her boyfriend and family.  She broke up with a longstanding partner for six months because she was not the girlfriend or person she was before the accident.  She was not fun or nice to be around.  They had reunited since, but the relationship remained rocky.

80      Until about two and a half years ago, the plaintiff stayed overnight with her boyfriend at his house.  She does not really still stay at his house as she agreed she felt the need to be at home with her parents to assist with her father’s care.[23] She does not stay with him at all.[24]

[23]T21

[24]T24

81      The plaintiff did not mention she no longer stayed with her boyfriend in her second affidavit as she did not really think it was of great significance.[25]

[25]T30

82      The plaintiff disagreed, if not for her father’s care she would be able to stay with her boyfriend overnight.  Her self consciousness, confidence, self esteem, depression, anxiety and chronic pain stopped her from staying with him.  She is not a fun person to be around.  She remains with her boyfriend and has a good relationship with him.  He is loving, supportive and tolerant.[26]

[26]T27-28

83      The arrest of the plaintiff’s boyfriend on a very serious assault charge, being held on remand and then missing his best friend’s funeral who had suicided, was a very traumatic experience for him.  The plaintiff was disappointed and sad for him but not necessarily for her.  It was an issue on the day which she mentioned it to Dr Rigby.  The plaintiff denied this issue prompted the change in her living arrangements, no longer staying with her boyfriend.[27]

[27]T44

84      The plaintiff did not mention this issue in her affidavit as she did not feel that was as important as the way she was feeling in general.  [28] She was not trying to downplay anything.[29]

[28]T42

[29]T43

85      The plaintiff agreed that in about mid 2011, a customer threatened to kill the pharmacist whilst she was at work.  She disagreed this was a distressing event.  It happened on a frequent basis and she was used to it.  Unlike the accident, she was not injured.  She had similar experiences at work too many times to keep count.[30]

[30]T46

86      The plaintiff agreed that in 2012, her father’s sister wanted him to go to Tasmania and live with her to help her pay her mortgage.  The plaintiff was concerned her aunt was trying to take advantage of her father.  That issue did not cause the plaintiff’s depression to become worse.[31]

[31]T48

87      The arrest of her boyfriend, the incidents at work and the issue with her aunt were really not severe enough for the plaintiff “to be a mess over them”.[32]

[32]T49

88      The plaintiff was severely depressed before these incidents – “It was just life.  It was not often that you are injured in a car accident where this happens to you and you are severely affected every day.”[33]

[33]T50

89      The plaintiff denied there was sustained improvement until her father’s worsening health in 2011.  Her condition was just stabilised and the same and when things happened, like to her father, they were a trigger that made her a lot worse on those days.[34]

[34]T56

90      The improvement noted by Dr Ingram in the six months before the examination on 17 January 2011 was probably due to the medication the plaintiff was then taking.[35]

[35]T59

91      The plaintiff agreed she told Dr Alatan in February 2012 that her father’s condition had had a huge impact on her.  It made her sad.  He nearly died.  The plaintiff agreed that was one of the reasons why Dr Alatan mentioned she was getting worse.  The plaintiff agreed she had then recently become more and more nervous and the trigger was the worsening of her father’s condition.[36]

[36]T55

92      The plaintiff has generally become less social since the accident and is relatively isolated socially and sees very little of her previous friends, essentially socialising with only family and her boyfriend.  The plaintiff had only socialised with her family.  She does not have any friends.  When she is in pain she is not any fun to be around.[37]

[37]T77

93      The plaintiff recently travelled to Fiji, using a plane ticket her brother could not take up.  She required Xanax on the trip and would probably not travel overseas again based on that experience.[38]

[38]T68

94      When the plaintiff returned to work at Priceline after the accident, she had to reduce her hours from six days a week, 7.5 to 8 hours a day, to four days a week, 4.5 hours a day, as a result of a number of factors, including pain, the effect of medication and her altered attitude and behaviour towards customers. 

95      As a result of a change in personality and sharpness with others, the plaintiff has had issues at work.  She is no longer friendly to customers and is intolerant of rude customers.  She is unable to stop herself even though she knows it is unprofessional.  She has found it harder to concentrate since the accident.  Her rudeness has led to her being taken off the register and the pharmacy floor and moved out the back to do unpacking.

96      In about November 2009, the plaintiff ceased work with Priceline because she was having too many difficulties with staff and customers.

97      In January 2010, the plaintiff obtained employment with Chemmart as a sales assistant, working 20 hours a week for the first year.  She felt that was the most she could cope with, and later increased to 30 hours a week.  The plaintiff explained this increase was partly because of the medication.[39]

[39]T60

98      The plaintiff continues in that role as a sales assistant in a relatively small and low-key community pharmacy managed by her mother.  She cannot cope with longer hours.  Working longer hours made her feel very tired and lethargic and she is very lucky her mother manages the pharmacy, which enables the plaintiff to have greater flexibility than she would have elsewhere.  Her mother also tailors work duties taking into account the plaintiff’s behavioural issues. 

99      The plaintiff calls in sick a lot and there are days when she does not go to work.  She can never work more than 7 hours a day.  When she has tried, she feels lethargic and very unmotivated and her pain is a lot worse and she finds her talking is affected.[40]  She works Sundays to make up for the days she cannot work during the week.  She would prefer to work normal 9.00 to 5.00 hours, five days a week, but she is unable to do so.[41]

[40]T72

[41]T63

100     There are some days the plaintiff cannot even get out of bed and the medication also makes her feel drowsy.  She could not hold down a job elsewhere.  If the plaintiff has bad days, her mother is very accommodating.[42]

[42]T65

101     The plaintiff no longer really enjoys her work any more and is unhappy she cannot work her pre-injury hours.  She is unable to take on extra shifts.  When she gets home at the end of a working day she is exhausted, which further compounds her irritability.

102     The plaintiff denied she only works as much as she needs to enable her to fund her lifestyle.  She can no longer work as much as she wants to.[43]

[43]T22

103     Prior to the accident, the plaintiff had planned to do further studies to become a social worker.  She had not planned on her current job forever.  There is no way now she could do those studies due to a combination of her pain, her reduced ability to concentrate, her medication and her post-accident aggression.  Those factors would also stop her from working in community services.  She is only twenty five and had envisaged a much more fulfilling professional life than the one she now has.

104     In re-examination, the plaintiff described her current depression as stable.  She cannot shake it.  She is very unmotivated, very unenthusiastic, very unfriendly, quite snappy and not very social.[44] Her anxiety is very bad and her PTSD is still the same, with frequent flashbacks.

[44]T84

105     The plaintiff’s jaw pain is stable but always there.  It has been constant.  On days like when in the witness box, she found herself grinding her teeth more.  Three days a week the jaw pain is worse.

106     The plaintiff’s father’s condition makes her sad that he will never be the same again.  It is a constant reminder, seeing him everyday, that he nearly died.  It does not help her emotional state.  Her attitude to this issue has remained the same.[45]

[45]T86

107     The plaintiff mentioned her boyfriend has been in jail since March 2004 and is to be released in May this year.  This situation does not affect her day to day.[46]

[46]T88

The Plaintiff’s taxation summary

Financial Year	Total Gross Earnings
2005	$4,334
2006	$10,389
2007	$14,592
2008	$32,210
2009	$44,756
2010	$39,143
2011	$31,618
2012	$34,494

Lay evidence

108     The plaintiff’s brother, Luke Bryan, Senior Detective with Victoria Police, presently aged twenty eight, swore an affidavit in December 2013.

109     Mr Bryan confirmed that pre-accident, the plaintiff was confident with a positive attitude, very self reliant and had an active social life.  Now she is a completely different person.

110     Since the accident, the plaintiff has become irritable and short tempered and she is often aggressive and moody and much less social, ostracising herself from others, her family and her boyfriend.  She is often tearful and withdrawn and has lost the motivation to do even simple tasks.  She has panic attacks and just is not coping, unlike before the accident.

111     Mr Bryan has observed the plaintiff having trouble eating and knows it is hard for her to eat or talk for long periods of time and she has frequent headaches and migraines.

112     The plaintiff’s mother, Shona, swore an affidavit in December 2013 confirming she manages the pharmacy where the plaintiff currently works.

113     Mrs Bryan confirmed the plaintiff’s current medication regime and is very concerned about the amount of medication the plaintiff has taken since the accident which she considers has had an adverse impact upon the plaintiff’s personality.

114     Mrs Bryan confirmed the plaintiff was happy, fun loving and caring before the accident, but since had become a completely different person, describing the same matters mentioned by her son.

115     Mrs Bryan confirmed the plaintiff’s sleep is often disrupted, she has bad dreams and is constantly lethargic and fatigued.

116     Mrs Bryan has observed the plaintiff experiencing pain in her face and jaw.  It is hard for the plaintiff to sneeze, eat or talk for long periods of time.  She has frequent severe headaches, migraines, often with accompanying nausea.

117     The plaintiff has had to stay home from work or leave work early when she has had a migraine.  The plaintiff has panic attacks, is depressed and anxious and is often tearful and withdrawn.

118     The plaintiff is very fortunate that Mrs Bryan manages the pharmacy and she can provide her with a degree of support and protection not available in the open marketplace.  Without that degree of flexibility, the plaintiff could not work her current hours and as she is now at the limit to which she can cope.  Mrs Bryan has observed when the plaintiff gets home at night she is exhausted.

119     Mrs Bryan confirmed the plaintiff experiences many issues in the workplace as a result of her post-accident change in her personality, often being snappy, rude and argumentative towards customers and staff.  She has tried to take the plaintiff away from that situation, but the plaintiff has to deal with those people naturally in her role as a sales assistant.

120     Mrs Bryan confirmed the plaintiff’s pre-accident plan of being a social worker and her inability to carry out that plan because of pain, reduced ability to concentrate, her medication and her post accident behavioural changes.

The Plaintiff’s medical evidence

Treaters

121     Ms Shand, oral and maxillofacial surgeon, reported to the plaintiff’s general practitioner in September 2009, thanking her for the referral.

122     On examination of the plaintiff, Ms Shand found a normal range of mouth opening and normal lateral jaw movement range.  There was no palpable muscle spasm.  An intermittent click was present in both the left and right temporomandibular joints (“TMJ”) on opening and closure.

123     Ms Shand discussed the nature of TMJs with the plaintiff, and that that was usually managed conservatively.  Having diagnosed Temporo Mandibular Joint Disorder (“TMJD”), Ms Shand referred the plaintiff to Dr Marvan, oral medicine specialist.

124     Dr Marvan first saw the plaintiff in September 2009 when the plaintiff reported bilateral facial pain involving the jaw masseter muscle and the temporal regional and tension like headaches. 

125     On initial examination, there was no limitation of mouth opening but it was painful.  There was an audible click in the right TMJ, tenderness on palpation of the temporalis, masseter, lateral pterygoid and supra hyoid muscles bilaterally and also of the TMJs.

126     Dr Marvan thought the plaintiff was suffering from TMJD, which she described as a benign condition which usually resolves spontaneously or with minimal, conservative treatment.  She noted in a small percentage of cases, an interocclusal appliance or splint may need to be worn at night:  the response to that usually excellent.  However, duration of treatment varied markedly and recurrences were common.  Other medication, such as anxiolytics, or antidepressants may sometimes be prescribed in very rare instances. 

127     At that stage, Dr Marvan anticipated the plaintiff’s symptoms would resolve over time with the use of a splint.  However, she would be prone to recurrence of her symptoms.

128     Dr Marvan noted the plaintiff’s response to the treatment would be influenced by her ability to rest the TMJ and also by the levels of her stress.  At that stage, she did not think the plaintiff’s capacity to work would be affected in the long term.  She noted the splint, which was to be inserted in December 2009, needed to be regularly adjusted over a period of at least a year and the plaintiff’s progress monitored.  She did not anticipate then the plaintiff would require further active treatment other than the medication suggested.

129     Dr Marvan noted the delay in treatment led to a delay in resolution and that healing of the TMJ and associated musculature had also been delayed by daily activities such as eating, yawning and grinding, clenching, stress over injuries her father sustained in the accident and the need to talk for periods of time at home and at work. 

130     Dr Marvan further reported in January 2012, noting she had inserted the interocclusal appliance in December 2009 and adjusted it regularly since.  During that period the plaintiff had also required non steroidal anti-inflammatory drugs prescribed by her and the plaintiff’s general practitioner.

131     Dr Marvan thought the plaintiff continued to suffer from TMJD which had not responded to the usual conservative management strategy and in her opinion there was now a significant psychological component.  She noted that on a number of reviews, the plaintiff expressed significant distress with the pain and also about the consequences of the accident; namely, injuries to her father, financial concerns and the effect on her family.

132     Dr Marvan noted chronic pain (pain of more than three months’ duration) could also result in central and peripheral sensitisation – a condition in which there was a change in neural activity in the brain and spinal cord leading to altered, inappropriate and exaggerated pain sensitisation, making management and prognosis more problematic.

133     Dr Marvan noted the plaintiff’s TMDJ improved somewhat following insertion of the appliance.  However, since March 2010, the plaintiff had reported fluctuations in her symptoms, leading to an overall deterioration.  She described pain in and around both jaw joints, stiffness and fatigue of the facial muscles, headaches and limitation of mouth opening.  The plaintiff’s maximum mouth opening had decreased from 55 millimetres interincisal in September 2009 to 35 millimetres in late November 2011.  Her pain-free mouth opening had decreased from 30 to 20 millimetres interincisal distance on 25 January 2012 (a pain-free 40 millimetre-distance was considered reasonable).

134     The plaintiff had associated increased pain with periods of stress including concerns over her father’s condition and financial difficulties.

135     Dr Marvan noted once pain had been chronic, any other factors including neurological, psychological and muscular came into play to maintain and escalate the symptoms.  She thought it appropriate, therefore, for these conditions to be managed in a specialist multidisciplinary pain clinic and thought the plaintiff would benefit from that approach.  As other external factors, such as financial difficulties, were causing stress, these needed also to be addressed. 

136     Dr Marvan noted the plaintiff’s existing appliance was also low and a new interocclusal appliance with an increased vertical dimension was indicated.  Whilst no soft tissue pathology had been demonstrated on testing, further testing may be necessary in the future.  In Dr Marvan’s opinion the plaintiff’s injuries were consistent with the accident circumstances and the progression of her symptoms was consistent with continued stress and anxiety.

137     Dr Marvan last reported in February 2014.  She had seen the plaintiff a number of times since December 2012.  Signs and symptoms of the plaintiff’s TMJD had waxed and waned, as was consistent with the natural history of the condition but there was an exacerbation of her symptoms when she is anxious or stressed.

138     When most recently seen on 6 November 2013, the plaintiff reported an increase in tooth sensitivity and headaches, both of which Dr Marvan thought were consistent with an increase of parafunctional activities such as grinding and clenching.  Overall the symptoms of the plaintiff’s chronic TMDJ escalated during 2013 and she had continued to require conservative multidisciplinary management of complex TMJD.

139     Dr Chai first saw the plaintiff on 4 November 2009.  She had initially been seen at his clinic in January that year.

140     In his 2010 report, Dr Chai noted the plaintiff had been getting frequent jaw and facial pain since the accident which fit the diagnosis of TMJD.  The pains were there almost daily to weekly and, due to anxiety, she tended to grind her teeth in her sleep.  The plaintiff required moderate to strong painkillers and was seeing a specialist.

141     The plaintiff was also suffering PTSD and depression.  He noted in the last three months, her depression and anxiety had improved with Xanax and Mirtazapine.

142     In cross-examination, Dr Chai explained that each patient is different with TMJD.  Sometimes it is prolonged and sometimes it can get better by itself.  He agreed the response was usually excellent to conservative treatment.[47]

[47]T100

143     Dr Chai agreed that the stress, anxiety and depressive condition were playing a significant role in the perpetuation of the plaintiff’s TMJD.[48]  He agreed, according to the literature, one would expect the usual course of the condition was spontaneous improvement.  Five years down the track, Dr Chai agreed a psychological problem was manifesting in physical symptoms and that was psychosomatic.[49]

[48]T103

[49]T104

144     Dr Chai noted in May 2012 that the plaintiff’s mental health was stable.  He agreed that from 2009 there was a significant psychological component in her complaints of jaw pain and that psychological issues were the main driver of her jaw symptoms.[50]

[50]T107

145     Dr Chai initially prescribed Digesic for the plaintiff’s jaw pain then changed over to Tramadol.

146     Dr Chai explained his reluctance to prescribe benzodiazepines because of its addictive qualities and he steers away from it in a less significant or severe condition.[51] The plaintiff was not, however, insistent about that sort of prescription.  He could not remember telling her that she should be better and “it was all in her head”.[52]

[51]T108

[52]T109

147     Dr Chai confirmed that his diagnosis of PTSD could overlap with symptoms of depression.

148     Dr Chai agreed that with a typically benign condition of TMJD, he would have anticipated it would have resolved within a year or so.  He agreed the condition had been perpetuated significantly by psychological problems.  It was hard to say what those were and it could be a combination of both the plaintiff’s response to her father’s illness and the fact she was in the accident herself.

149     Dr Chai confirmed he had not seen the plaintiff for over two years.  When he saw the plaintiff on 25 May 2009, he noted the car accident.  The plaintiff’s jaw was bruised and swollen and she had attended The Royal Melbourne Hospital.  Her jaw was inflamed with TMJD.  She was on Mersyndol Forte. 

150     Dr Chai agreed that delay in diagnosis and treatment may result in a delay of resolution of symptoms.

151     Based on the fact there has been really no substantial improvement in the plaintiff’s jaw pain and she had been treated with multiple modalities, Dr Chai agreed TMJD was an organic condition.[53]

[53]T117

152     Dr Chai referred the plaintiff to Dr Rigby, psychiatrist, in April 2011.

153     In his 2012 detailed report, Dr Rigby noted the plaintiff described her own pain symptoms as well as those of her father, who suffered fractures of the cervical vertebra.

154     The plaintiff was profoundly distressed at the magnitude and extent of the disruption the accident had wrought in her life, and in particular at the effect that anxiety, irritability and depression had had and continued to have on her relationships and happiness. 

155     Recently the plaintiff’s father had been found to suffer from possibly MS.  The plaintiff told Dr Rigby she had been with a partner who is a few years older and seemed devoted to her since eighteen, and had been a steady support throughout the period since the accident.  Dr Rigby noted it was highly fortunate that the plaintiff had a faithful partner.

156     The plaintiff reported that she gained then lost a substantial amount of weight after the accident, and she had become markedly anti-social.

157     Dr Rigby thought pain had clearly played, and continued then to play, a major role in the maintenance of the plaintiff’s psychiatric symptoms.  He noted she reported that discomfort was ever present, and there was considerable stress with her jaw owing to the instability of the joint.  Sleep remained disrupted owing to both pain and depression.

158     Dr Rigby thought it clear there had been added stresses during the past several years that had compounded the plaintiff’s distress, including her father’s illness, the visit of an acquisitive aunt and her boyfriend’s loss of a close friend who had suicided.  Dr Rigby noted all the charges brought against the plaintiff’s boyfriend had been withdrawn.

159     While the other above difficulties had added to the stress load for the plaintiff, Dr Rigby thought it remained clearly apparent the major sustaining factor in her anxiety, anger and depressive symptoms had been the continued pain associated with her injury, together with the post-traumatic impact of the accident itself and her witnessing her father’s injury.

160     Other effects of the accident included grinding of her teeth, both at night and during the day, sore teeth, and chest pain with anxiety.

161     Dr Rigby concluded the plaintiff had sustained severe and longstanding psychiatric injuries as a consequence of the accident. 

162     The plaintiff’s disability included chronic and treatment resistant depression; severe anxiety, partly responsive to Quetiapine; sleep disturbance; Panic Disorder; chronic and enduring PTSD, unresponsive to treatment; involuntary movement disorders including bruxism and leg movement; impact on her relationship, including the progress of her relationship with a partner; chronic pain in the neck and jaw; instability of the right TMJ and other physical injuries described by Dr Marvan and Associate Professor Gerschman; loss of her social nexus and continued and at times, uncontrollable anger.  He thought the prognosis was not favourable and the plaintiff’s present degree of disability would remain for the foreseeable future.

163     Dr Rigby then thought the prognosis was not favourable.  The chronic pain of the duration experienced by the plaintiff has a very poor prognosis indeed, often does not respond to treatment, and is not psychological or psychogenic in nature, noting the mechanisms of such pain syndromes are not understood, but in most cases, and certainly in the plaintiff’s, there existed no primary or secondary gains or any other psychiatric motivation for the persistence of her extremely distressing symptoms. 

164     Dr Rigby thought Major Depression secondary to pain had a poor prognosis, noting the plaintiff had not responded to treatment.  In his view the profound effect of the accident on the plaintiff’s father had been a further severe stressor, and PTSD had become chronic and severely limited the plaintiff’s activity in life.

165     In his February 2014 report, Dr Rigby noted the plaintiff had continued to see him over the past two years, mostly fortnightly.

166     Even with ongoing treatment, the plaintiff remained anxious and unstable in mood.  Dr Rigby thought a continuing precipitant for both the plaintiff’s depressed mood and her attacks of anxiety and deepening of depression was her pain, disability and altered psychiatric health and personal adjustment.  She remained unsociable.

167     On the other hand, previous disruptions to the plaintiff’s family life by her father’s involvement in the accident had levelled off, and now play a constant rather than acute part in her distress.  In spite of this, her mood and her psychiatric health had not significantly improved in the past two years.

168     Pain and discomfort in the plaintiff’s jaw continues to be reported as distressing, rendering ordinary interaction with others difficult, owing to distraction by the symptoms.  Irrational anger and irritability related to the prevalence of pain and jaw symptoms, as well as her depression and anxiety, continue to provide a major stressor for the plaintiff, her partner and her family.  She continues to report grinding of her teeth and dental pain.

169     Dr Rigby noted the plaintiff’s condition had not improved over two years, and there was no doubt that the psychiatric injury related to the accident was likely to be permanent.

170     Dr Rigby again emphasised the plaintiff’s pain symptoms were in no way psychological or psychogenic.  There exists no primary or secondary gain or any other motivations for persistent pain.  PTSD remained unchanged and was permanent.

171     Dr Rigby noted that while the plaintiff was a likeable and friendly person, her humility and desire to please had in many ways prevented her from securing the help she needed.  At the same time, her straightforwardness had misled some to underestimate the severity of her loss of capacity.

172     In cross-examination, Dr Rigby was asked about an entry in 2011 where he noted the plaintiff missed last week when her boyfriend’s friend shot himself and her boyfriend got locked up two days later but would not be charged.[54]

[54]T130

173     That was the extent of any history given by the plaintiff of any criminal activity on her boyfriend’s part.  Dr Rigby then said he knew the boyfriend was committed to prison subsequently.  He noted on 28 July 2011 the boyfriend was out of jail. 

174     Dr Rigby was going to be talking to the plaintiff about her reaction to “all of that”.  He had no idea how long her boyfriend was in jail.  He did not have any record about the sentence.  That should have been recorded.[55]

[55]T132

175     It was possible incarceration of the plaintiff’s boyfriend for two years may have caused her depression.[56]  That jail situation may worsen the already existing depressive disorder, but Dr Rigby noted the plaintiff was quite resilient and his notes did not reflect a massive worsening of her depression at that time.[57]

[56]T133

[57]T134

176     Dr Rigby disagreed that a full history was essential as mental state examination was also important.  He would not say history would not have any bearing on his opinion, but it would not necessarily sway a diagnosis.

177     Subsequent to 23 June 2011, the plaintiff’s main preoccupation was her pain, depression and its management.  If the depressive symptoms occurred after the accident and before the plaintiff’s boyfriend was incarcerated, there can be no retrospective causation of depression.[58]

[58]T134

178     Dr Rigby noted that the effects of incidents like the hold up at work died down quickly.  The plaintiff settled very well after her father’s suspected diagnosis of MS.[59] Dr Rigby thought her father’s illness would play a small part in the plaintiff’s presentation, but did not consider it to be the cause of her depression.[60]

[59]T136

[60]T137

179     Dr Rigby agreed that the plaintiff’s depression was multi factorial.  Firstly, there was the immediate impact of the accident and the fear her father was dead.  Secondly, there was depression precipitated by ongoing pain which was difficult to treat.  Thirdly, it was intermittent, namely various crises that have occurred in relation to the plaintiff’s father, boyfriend, events in the pharmacy and a pernicious aunt.[61]

[61]T137

180     A picture of improvement in 2010 and 2011 was put to Dr Rigby with the plaintiff being able to get her licence, decrease her weight and increase her work hours to 30 hours a week.  He was told of Dr Alatan’s note in February 2012 of the plaintiff’s significant concern about her father’s physical wellbeing.

181     On a background of these issues, Dr Rigby thought the basic nature of the plaintiff’s problems did not seem to have disappeared in that time.[62]  There may have been improvement in the past, but since he started to see the plaintiff in April 2011, he had not seen either deterioration or improvement, except for fluctuations relating to crises.[63]

[62]T139

[63]T140

182     Dr Rigby had the impression that there had been some deterioration in relation to both the experience of TMJD pain and also the plaintiff’s despair at not improving.  There was some deterioration based partly on her loss of social amenity due to the pain and due to her mental state and anxiety.  On average, there were fluctuations.[64]

[64]T141

183     Whilst he conceded he did not have any expertise in the field, Dr Rigby would imagine the presence of trauma would make a difference to TMJD.  He agreed the literature was for an optimistic prognosis, but he thought that related to non traumatic causes.

184     “Of course” Dr Rigby would not defer to Dr Chai’s view that the psychological component was a significant sponsor of the plaintiff’s TMJD.  There was no evidence whatsoever from Dr Rigby’s extensive experience that that was so with the plaintiff or that there was any motivation for it to be, and it seemed very far fetched to him.  She did not have the personality for that to be the case.[65] 

[65]T142

185     Dr Rigby did not defer to psychiatric statements made by unqualified people which he thought were usually a consequence of them not being able to produce some resolution, so the patient’s condition “goes into the rubbish bin category of a psychogenic cause.  Most psychiatrists object very strongly to that kind of misuse of non-qualified opinion.”[66]

[66]T143

186     The absence of a physiological cause does not mean that by default, there is a psychogenic cause.[67] In the absence of physiological cause, it is not psychological, it could be neurological and probably falls in the gap between surgeons, psychiatrists and neurologists and it is “very well known in this field of accidents”.[68]  Ongoing experience of pain in the absence of radiological evidence does not automatically mean a condition is psychogenic at all.[69]

[67]T144

[68]T145

[69]T146

187     When a number of other stressors were put to Dr Rigby, he thought that by far the majority of the condition for which he treated the plaintiff arose either directly from the accident or through, particularly, her pain, and somewhat through the loss of amenity resulting from her ongoing traumatic and other symptoms.  He noted that the other matters had been, to a surprising extent, adventitious for a person who seemed vulnerable in some ways. 

188     Dr Rigby noted the plaintiff had certainly responded to quite a great degree to the other matters but their resolution had been very gratifying to him in terms of therapy.  What he found difficult to shift was the main depressive and PTSD arising from her accident itself and her pain and its effect on her life.

189     Dr Rigby explained he was prescribing three types of medication for the plaintiff: Endep, an antidepressant with an anti-pain capacity, increased from 50 to 150 milligrams; Seroquel, an antipsychotic that could be described as a major tranquiliser with an anxiety reducing effect and also had an augmenting effect for depression and assisted in sleep; and the thirdly, benzodiazepines for acute exacerbations of anxiety.   

190     Dr Rigby thought the plaintiff’s depression had not improved, as it was seldom the case it did so secondary to pain.[70]

[70]T155

191     Dr Rigby thought the plaintiff was very preoccupied with her father’s situation but she had had a lot of work to do there.  He accepted all things contributed to her current presentation, particularly when they were acute.[71] He considered her stable ongoing state may involve some percentage response to those things but it is not the major part of it.[72]

[71]T157

[72]T158

192     Having been told of the scenario of improvement in 2010 to 2011 and then the incarceration of the plaintiff’s boyfriend in 2011, the suspected MS in 2012 and the reported worsening to Dr Alatan in early 2012, Dr Rigby responded that the plaintiff’s condition when he first met her was not significantly different from now.[73]

[73]T159

193     Dr Rigby did not really agree with Dr Ingram’s comments about a pathological relationship in the family.  The plaintiff’s response was appropriate and protective.  She might have been preoccupied in 2012 but that had lightened up considerably without unfortunately eliminating the core symptoms.[74]

[74]T161

194     The plaintiff has told Dr Rigby that her jaw pain is ongoing, fairly constant, with exacerbations radiating up to the head and being associated with headaches and down the right side of the neck.[75] 

[75]T164

195     Dr Rigby confirmed the plaintiff’s evidence about personality change and increased anger.  He repeated his views about the tendency of non-psychiatrists sometimes to attribute things to psychological sources.[76]

[76]T166

196     The other stressors mostly played a residual role, with one exception, that was her father’s actual implication in the accident, which remained a PTSD trigger.

197     Mr Boultadakis, psychologist, reported in April 2010 that the plaintiff suffered persistent symptoms of increased arousal, mainly in difficulty falling or staying asleep, irritability and outbursts of anger and poor concentration but continued progress was being made mainly through anxiety management, relaxation techniques and cognitive therapy.

198     Dr Alatan reported in January 2013.  She commenced seeing the plaintiff in February 2011 for chronic insomnia.

199     Dr Alatan noted the plaintiff was seen and assessed by a list of specialists and was diagnosed with PTSD and TMJD, depression with anxiety and chronic insomnia.

200     Dr Alatan noted the plaintiff saw Dr Rigby fortnightly and that she had been assessed by Dr Marvan, a private specialist who diagnosed her with TMJD.  She was fitted with a splint she wore every night like a mouthguard and the splint was adjusted from time to time and the specialist advised the plaintiff her TMJD would be a permanent condition and could not be dealt with otherwise. 

201     Dr Alatan thought the plaintiff’s conditions had been ongoing and had not improved significantly since the accident and they had become chronic medical conditions.

202     Dr Alatan believed the plaintiff was incapacitated for her pre-injury work due to the accident, having to reduce her working hours to no more than 30 hours a week and having to work in a less public environment due to her increased irritability and problems dealing with the public.  She noted the plaintiff was impaired physically and emotionally as a result of her motor vehicle accident injuries.

203     Dr Alatan thought the plaintiff’s medical conditions had not been getting better but had stabilised.  She noted that the plaintiff had previously had physiotherapy and acupuncture which had not helped.  She was not a candidate for surgical procedures.

204     Dr Alatan thought the plaintiff’s medical conditions had stabilised.  However, she considered the plaintiff would need her front teeth to be assessed and she needed further treatment for her dental condition.  She noted the plaintiff was presently taking Imovane for chronic ongoing insomnia and she also applied other sleep hygiene techniques such as relaxation.  The plaintiff took Panadeine Forte, up to four per day at night, mainly for her migraine jaw pain, TMJD and neck pain and she also took Murelax occasionally for anxiety with panic symptoms. 

205     In March 2013, Dr Tomlinson, senior neurologist at Northern Health, reported to Dr Alatan, noting the plaintiff had not had any headaches until the car accident.  The plaintiff described her headaches as beginning in the frontal region on one or other side as a dull ache and then a throbbing sensation.

206     Dr Tomlinson wrote again to Dr Alatan on 16 October 2013, having seen the plaintiff that day.

207     Dr Tomlinson reported the plaintiff found beta blockers made her feel unwell so she ceased them, although they perhaps improved her headaches a little.  She still, however, got a headache about once a week, largely in the left frontal region as a throbbing sensation which lasted from hours to a day and a half.  Since the blockers, the plaintiff had been started on Sandomigran, with increasing dosage.

208     Review in two months time was planned.

The Plaintiff’s medico-legal evidence

209     The plaintiff was examined by Associate Professor Paoletti, psychiatrist, initially in August 2010 and re-examined in October 2013.

210     On initial mental state examination, the plaintiff was not visibly depressed and she had good reactivity.  She was anxious and she described quite heightened anxiety in traffic.  Thought stream was normal and form was coherent.  Content revealed concern about her situation, she reported anxious phobic ideation in traffic. 

211     There were no classic obsessions but the plaintiff ruminated constantly about the accident and she reported traumatic dreams.  There were no delusions.  She reported frequent flashbacks of the accident.  Her concentration was reasonable and there were no apparent deficits in orientation.  She had reasonable insight into her illness.

212     From a psychiatric point of view, Professor Paoletti thought the plaintiff suffered from an Anxiety Disorder Not Otherwise Specified with features of PTSD, although she would not meet the “entrance criterion” for that condition.  He noted this was a direct or non consequential effect of the circumstances of the accident. 

213     The plaintiff also suffered from an Adjustment Disorder unspecified.  In Professor Paoletti’s view that was manifested by dysphoria and irritability and was in part a consequential effect of the physical symptoms but in part derived from the Anxiety Disorder.

214     Professor Paoletti noted, as of the August 2010 examination, the accident affected the plaintiff’s lifestyle and quality of life.  In particular her relationship with her boyfriend was tested but that had been improving.

215     Professor Paoletti noted the plaintiff was doing reduced work duties due to irritability.  In relation to treatment, she had significant residual symptoms and affective and post-traumatic type.  He thought a psychiatrist should ideally be involved in her care.  Treatment by a psychologist was indicated with an aim to move to self management which would be more possible if pharmacotherapy was organised.  The prognosis was then uncertain.

216     On re-examination in August 2013, Professor Paoletti had available Dr Rigby’s reports and also reports from Dr Ingram and reports relating to the plaintiff’s TMJD.

217     The plaintiff advised that since seen previously she was virtually just the same and she had tried to shake it.  She wanted to get better but she did not seem to be able to do so.  She still felt depressed. 

218     The plaintiff told Professor Paoletti she was still with the same boyfriend but it was then a bit rocky because she was short fused and he was closest to her and it was easier to blame him.  She complained of flashbacks, waking in the night, bad dreams, anxiety as a passenger and being snappy and “aggro” at work.  She reported not really enjoying things and she no longer socialises.

219     The plaintiff told Professor Paoletti she could not work more than 30 hours a week.  She told him her father was disabled from the same accident.

220     On mental state examination, Professor Paoletti noted the plaintiff’s speech was of mildly pressured rate, soft in volume and anxious tone with a little repetition.  Affect was dysthymic, she was anxious and described quite heightened anxiety in traffic and reported severe irritability but it was not evident in this setting.

221     Stream of thinking was pressured.  Form was coherent and revealed depressive ideation and anxiety in traffic.  The plaintiff reported traumatic disturbing dreams.  She ruminated about the accident and there were concerns about her situation.  There were no delusions.

222     The plaintiff was hypervigilant and reported ongoing flashbacks.  Concentration was reasonable and there were no apparent defects of memory and concentration.  Her insight into the illness was reasonable and she had normal awareness of social norms and no impulsivity.

223     From a psychiatric point of view Professor Paoletti thought the plaintiff suffered from:

(i)     Anxiety with Disorder Not Otherwise Specified with features of PTSD;

(ii)    Adjustment Disorder unspecified manifested by dysthymia and irritability and is in part a consequential effect of the physical symptoms but in part derives from the Anxiety Disorder; therefore it has a direct or non consequential element.

224     Professor Paoletti’s opinion remained that the plaintiff’s psychiatric impairment depended more on the accident circumstances than on her reaction to physical injury based on the marked symptom of PTSD dominating her psychic life.  The awareness of residual physical symptoms also contribute. 

225     Professor Paoletti noted the accident had affected the plaintiff’s lifestyle and quality of life.  In particular her relationship with her boyfriend remained stressed by her irritability and she had grossly withdrawn socially. 

226     Professor Paoletti noted the plaintiff was working reduced duties due to her irritability and other symptoms.  From a psychiatric point of view, she did not have a capacity for full duties but considering her young age, that should be an aim. 

227     In conclusion, Professor Paoletti thought the plaintiff had significant residual symptoms and effective and post-traumatic type.  He noted she was now seeing a psychiatrist and that should continue for the foreseeable future as a reasonable treatment.

228     Professor Gerschman, specialist in myofascial pain and TMJDs, examined the plaintiff for medico-legal purposes in January 2011.  He noted that in the accident, the plaintiff struck an object near the back seat window, sustaining right facial pain. 

229     On examination, the plaintiff complained of persistent painful clicking of the right TMJ on eating, talking and night bruxism.  There was pain on chewing of hard chewy foods such as apples, carrots, nuts, raw vegetables or meat, which limited her diet to soft and semi solid food and there were ongoing right-sided headaches.

230     On examination, the range of motion showed maximum interincisal opening 42 millimetres with the range 42 to 52 millimetres.  Lateral motion was 10 millimetres to the right and 9 to the left with the range being 8 to 12 millimetres.

231     There was moderate bilateral, mainly right-sided, pain on muscle palpation.  There was moderate, mainly right-sided pain, on TMJ palpation.  There was intermittent reciprocal right-sided clicking.  There was mild bruxofacets (tooth attrition) due to bruxism (grinding and clenching) present in the pre molar area.  The oral hygiene was good with only minor plaque calculus present. 

232     Professor Gerschman noted the full extent of the injuries suffered in the accident included head injury; facial injuries including a black eye; injuries to the jaw, face and teeth; hip injury; injury to the lower back; psychiatric and psychological injury.  There was a TMJD with a primarily myogenous (muscle related) component and a minor arthrogenous (internal derangement, clicking) component.

233     Professor Gerschman noted there was a lapse of about three months before the TMJD was diagnosed and further time before it was treated, worsening the prognosis.

234     Professor Gerschman suggested treatment with myogenous (muscle related) and arthrogenous (internal derangement, clicking) components with the use of an inter occlusal night splint, targeted physiotherapy and muscle relaxants, noting those treatments had been provided.

235     Professor Gerschman thought ongoing psychiatric problems may aggravate tooth grinding and clenching and would negatively affect the progress prognosis for the TMJD.  He noted antidepressant and anxiolytic medication had been prescribed.  He thought the prognosis was guarded.

236     Professor Gerschman commented, as expected the plaintiff’s response to treatment had been very poor with ongoing clicking, jaw pain, neck pain, severe headaches and dizziness.  He noted at times she was in so much pain she could not get out of bed and she rated her maximum daily pain severity at eight and a half out of ten. 

237     Professor Gerschman thought the various interacting physical and psychological factors appeared to be preventing resolution of her orofacial and craniofacial pain.  He thought stabilisation had occurred.

238     Professor Gerschman considered the TMJD alone did not impair mobility.  That, and the interacting headaches and physiological issues affected personal relationships and the injuries could affect any work situation.  He noted eating – dining in social situations – had been compromised.

239     Dr Aldred, specialist in oral medicine and oral pathology, examined the plaintiff on behalf of the defendant’s solicitors in March 2013.

240     In clinical examination, the plaintiff had limitation of opening at 1.5 finger breadths which she only achieved with some hesitation.  There was tenderness over the right and left TMJs (TMJD), right and left temporalis muscles, right and left occipital and trapezius regions, right and left masseter muscles and in the right and left lateral pterygoid muscles, especially the right lateral muscle.  Occlusion was unremarkable.

241     In Dr Aldred’s view there was no doubt the plaintiff had a TMJD which was a consequence of her accident injury.  He noted there had been no improvement in her pain and in many respects, her symptoms had deteriorated.  He noted she was currently using a splint and taking Amitriptyline, strong analgesics, and Quetiapine.  The plaintiff had had physiotherapy in the past which helped in the short term and she also found some benefit with laser acupuncture which she had monthly.  That helped particularly with migraines in reducing their frequency and duration.

242     Dr Aldred thought the plaintiff’s main problem at the moment was jaw pain which was quite severe and affected her ability to eat, particularly any food requiring chewing.  She also had neck pain and pain which predominantly affected the right side and she also suffered from migraines.

243     Dr Aldred noted the plaintiff’s reduced work hours because of aggression to customers and also because of pain and the allowances made by her mother who managed the chemist.

244     Dr Aldred noted Dr Marvan was hopeful the plaintiff’s condition would be improved with treatment but that had not been the case.

245     Dr Aldred was not at all optimistic about the plaintiff’s progress, noting the lack of improvement since the accident was discouraging.  As some of her symptoms had worsened; there was no guarantee that deterioration would not continue into the future and he thought it likely she would suffer the symptoms for the rest of her life.

246     Dr Aldred thought the splint treatment seemed to be helping and the plaintiff’s doctor and psychiatrist were working with her in relation to pain medication and for her moods.  He suggested physiotherapy be considered for future treatment given some past benefit and that laser acupuncture should be continued.  He noted in the past the plaintiff had had a course of Clonazepam and had to stop because of side effects.  He thought there might be some benefit to be gained from a trial of other anticonvulsants.

247     Dr Aldred considered the plaintiff was able to continue working in her pre accident job.  However, she was not capable of working a full time week, being limited because of aggression and difficulties concentrating and physical limitations in terms of bending and lifting.  He noted she had not been able to pursue further studies with problems with concentration and motivation.  He thought the nature of her incapacity was both physical and psychological.

Investigations

248     On 15 August 2009, Bundoora Radiology reported that the TMJs were enlocated.  There was no acute bone or joint abnormalities.  No destructive bony lesions or non-periodontal erosion.  In theory, the plaintiff’s maxillary sinuses were clear.  Dentition and periodontal bone was as demonstrated.

The Defendant’s medical evidence 

249     In a letter of 6 February 2012, Dr Alatan noted the plaintiff’s condition seemed to improve for a while until recently, when she had become more and more anxious and nervous.  She said that she kind of felt the urge to talk quickly because she had so many thoughts at the same time and if she could not express herself thoroughly she feared that she would not be taken seriously.  Her sleeping pattern had also deteriorated. 

250     On examination that day, the plaintiff complained to Dr Alatan of nervousness, fine tremor of the hands and [… ?] pressured speech.  Dr Alatan noted the triggers had been her father’s medical conditions had been progressively getting worse.

251     Dr Alatan advised her concern was that the plaintiff might need a proper psychiatric assessment and to have her diagnosis and management reviewed.  She noted the plaintiff was not very keen to have her antidepressants increased due to previous weight gain.

The Defendant’s medico-legal evidence

252     Dr Ingram, psychiatrist, examined the plaintiff initially in 2011 and more recently in April 2013. 

253     The plaintiff told him on initial examination the main physical problem had been one of constant pain in the right jaw since the accident, worse with eating.

254     The plaintiff described a number of psychological problems, the main being that she had become depressed, related initially to her fear her father was dead, and she had become depressed and distressed at the thought that he might have died.  She thought the other major reason that her depression had not resolved, the main one, had been her chronic pain which led her to think about the accident and its effects all the time. 

255     Associated with the depression, the plaintiff reported a loss of motivation and interest and that she had also become significantly socially withdrawn.  She slept poorly, in part because of the pain but also because of bad dreams about the accident.  As well as depressive symptoms, she had also started getting panic attacks.  She also had flashbacks regularly.

256     The plaintiff felt there had been some improvement in her symptoms over the last six months, though she still considered herself less than 50 per cent back to her normal self.

257     Dr Ingram had available a report from the treating psychologist and also Dr Chai’s report of April 2010.

258     Dr Ingram thought the plaintiff’s behaviour was appropriate and there was no evidence of her being in pain during the interview.  Her affect was depressed and she was tearful on occasions, especially when talking about her father.  There was some preoccupation with depressive themes and her pain but there was no formal thought disorder or perceptual abnormality.  Memory, concentration and intelligence seemed normal.

259     After that initial assessment, Dr Ingram thought the plaintiff was mainly suffering from a depressive illness associated with panic symptoms.  She was also suffering residual symptoms of a PTSD.

260     Dr Ingram noted the plaintiff continued to have chronic pain as a result of the accident and it seemed unclear what the exact diagnosis was.  He thought it may well be that psychological factors were contributing to her chronic pain, although he did not think that was conscious.

261     Dr Ingram then suggested a review of the plaintiff’s antidepressant medication with an increase in Avanza.  Until there had been trials of several different antidepressants on maximum dosages, he did not feel one could say her condition was stable.  He thought there was always going to be some barrier to total improvement if the plaintiff’s father continued to be unwell, so the prognosis for a complete recovery at that stage was uncertain. 

262     Dr Ingram thought the plaintiff’s ability to return to part time work at that stage was in part related to her chronic pain and in part to her depression and lack of motivation.  If her depression improved, he thought that she would be able to increase her work hours.

263     On re-examination, the plaintiff stated there had been little improvement in her physical symptoms. 

264     The plaintiff reported she lived at home with her parents and for a lot of time sat in her room watching television and had become much more withdrawn than previously and no longer saw friends.  She reported the atmosphere had changed significantly at home and her father had subsequently become severely depressed and incapable of doing a lot for himself; thus, he became extremely dependent on the plaintiff and relied on her to drive him around or do housework, which she found difficult as it brought back memories of the accident.  Her mother had also become depressed because of these changes. 

265     The plaintiff felt she would not have been able to move out; firstly, because she could not afford to; and secondly, because she felt she could not let her father down. 

266     The plaintiff told Dr Ingram she had a boyfriend whom she had seen three times a week and they had a sexual relationship, although she said she obtained less pleasure from this than previously and there had been some loss of libido and when she had been moody, she took things out on him.

267     The plaintiff described two sets of psychological symptoms.  Firstly, she had continued to feel depressed.  She slept poorly because of pain and because of negative thoughts and nightmares.  She related the depression to her difficulty accepting the numerous losses that occurred since the accident, particularly the loss of her previous family life and her father’s depression, but also her own pain and limitations. 

268     As well as the depressive symptoms, the plaintiff also felt very anxious a lot of the time and had mild panic attacks most days, as well as more severe attacks once a week characterised by palpitations, a sense of suffocation, feeling sweaty and overwhelmed, and needing to get out of the situation she was in.  She also had negative thoughts during the day, particularly worrying about her father and she still had flashbacks.  She felt very angry about what had happened and how her life had changed so much.

269     On examination, the plaintiff’s affect was again depressed with a decrease in reactivity and she was tearful on several occasions, though she engaged well.  There was a preoccupation with depressive themes and concerns about her father but there was no formal thought disorder or perceptual abnormality.  Her memory, concentration and intelligence seemed normal and she had partial insight.

270     Dr Ingram noted the plaintiff had chronic jaw pain which had not responded to analgesia and which became worse with eating and was now associated with migraine like headaches.  He noted the plaintiff’s father’s severe injuries, his chronic pain and dependence on family members.

271     Dr Ingram mentioned that psychologically the plaintiff found the accident very distressing, having thought her father may have died at the scene.  She continued to have nightmares and flashbacks and had also become significantly depressed.  Related to her chronic pain and also the loss of her previous life, concerns for her father, associated with depression, had been frequent panic attacks.

272     Dr Ingram felt the plaintiff was mainly suffering from a Chronic Adjustment Disorder with Depressed Mood associated with panic symptoms. 

273     Dr Ingram noted the plaintiff continued to have chronic pain which still caused problems for her although she seemed to have become more accepting of it and was learning to live with it.  However, she continued to have significant depression associated with panic attacks as well as residual PTSD symptoms.  He thought those psychological symptoms were totally as a result of the accident, the PTSD symptoms being primary and the depressive symptoms secondary, related to her chronic pain and also her father’s depression and dependence on her and changes in the whole family and loss of the family she had before.

274     Dr Ingram thought one of the reasons there had been so little progress in the plaintiff’s depression is the fact there now seemed to have developed a pathological relationship in the family whereby her father had become very dependent on the plaintiff for support, relying on her more than his wife for any help.  That had left the plaintiff in the position where she now felt, if she tried to get on with her own life, she would be letting her father down. 

275     In those circumstances, Dr Ingram thought the possibility of some kind of family therapy should be explored.  At the same time he thought it could be appropriate for the plaintiff to change her antidepressants as there had been little response to Endep.  He thought it appropriate she continue to see her psychiatrist on a regular basis.  He again thought the prognosis was uncertain and that unless there was some shift in the dynamics at home, it was quite possible the plaintiff would continue to be depressed.

276     In Dr Ingram’s view, the plaintiff’s chronic pain was one of the factors that made it difficult for her work long hours, but he also thought depression and anxiety would contribute to the difficulties she had focussing at work and unless there was an improvement in her depression she was unlikely to work full time, noting that even the current time she was working was probably due to the allowances made for her by her mother.

277     Although he thought the plaintiff’s psychological symptoms were entirely related to the accident, Dr Ingram thought they were being perpetuated by some kind of dynamics at home and he therefore thought it important to consider some kind of family therapy.

Overview

TMJD

278     The plaintiff’s primary case is there is an organic physical impairment of the jaw which is serious.[77]

[77]T189

279     There is no dispute the plaintiff suffers from TMJD as a result of the accident.  The defendant accepted liability for her claim and continues to fund medical treatment.

280     However, counsel for the defendant submitted that the application pursuant to subparagraph (a) in relation to TMJD should be dealt with under subparagraph (c) if the primary cause of the plaintiff’s jaw pain is non-organic.[78]

[78]T179

281     In Richards v Wylie,[79] Winneke P observed that when (as here) the plaintiff is relying upon paragraph (a) of the definition of “serious injury”, the following must occur:

“The inquiry which the judge must make under para (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is ‘serious’ and ‘long –term’:  see Humphries v Poljak at 138 and 140, per Crockett and Southwell JJ. The ‘division’ to which their Honours referred emphasises the nature of the injury which a judge is called upon to make under para (a) and to caution judges against succumbing to the temptation of equating ‘impairment of body function’ with ‘injury’ … Thus, the judge, when in making the inquiry, must be careful – particularly in cases where mental disturbances or disorders have supervened – not to lose sight of the focus which the definition in para (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of mental disturbance or disorder to govern, or even intrude into, a finding or ‘impairment or loss of a body function’.”

[79]Supra

282     This proposition was followed by the Court of Appeal in West v Pac-Rim Printing Pty Ltd.[80]

[80][2003] VSCA 68

283     Whilst Dr Marvan commented in her 2012 report that there was now a significant psychological component to the plaintiff’s TMJD, she did not repeat this view in her 2014 report and she continues to treat the plaintiff for the ongoing organic condition.

284     Dr Aldred, specialist in oral medicine, who examined the plaintiff on the defendant’s behalf in March 2013, had no doubt the plaintiff was suffering TMJD related to the accident.  He made no mention of any non organic factors in the plaintiff’s presentation at that time.  Neither did Professor Gerschman, specialist in oral medicine, who reached a similar diagnosis following examination of the plaintiff in 2011.

285     Whilst Dr Ingram thought there may be psychological factors contributing to the plaintiff’s chronic pain, Dr Rigby in his reports and confirmed in cross-examination that he does not consider the plaintiff’s current TMJD is psychologically based. 

286     Taking into account this expert medical opinion and the plaintiff’s ongoing requirement to wear a splint, take painkilling medication for jaw and facial pain and her continued need for specialist treatment, I am satisfied that the her present TMJD is organically based, although its severity is influenced at times by her level of stress as most practitioners have commented.

Credit

287     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[81]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[81](2010) 31 VR 1 at paragraph [12]

288     Counsel for the defendant attacked the plaintiff’s credit in two main areas.  Firstly, whilst deposing in her second affidavit that her psychiatric condition had not changed since she swore her first affidavit, in the interim, the plaintiff had in fact obtained her drivers licence and lost the weight she had earlier put on.  [82]

[82]T171

289     Secondly, it was submitted the “most glaring example” was the plaintiff’s failure to reveal the incarceration of her boyfriend until re-examination.  Further, the plaintiff had not disclosed this information to any treating doctor or medico-legal examiner.[83]  Repeatedly in her evidence, and histories to doctors, the plaintiff gave no indication that her boyfriend was in jail, describing other problems in their relationship with her short temper and taking things out on him because of her accident-related injuries.

[83]T170

290     I accept this is the major concern when considering the plaintiff’s credit.  I accept that her embarrassment and shame relating to this issue goes some way to explaining her conduct but her lack of candour does cause me some hesitation in accepting her various complaints in the absence of corroboration.

291     Of note however, there was no film or other evidence challenging the plaintiff’s evidence as to her facial and jaw pain and resultant restrictions.  No doctor thought that the plaintiff was exaggerating or embellishing her symptoms on examination.  Further, there was no challenge to the supportive affidavits of the plaintiff’s mother and brother which confirmed various problems experienced by the plaintiff. 

292     The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about her pain both in court and to doctors.[84]

[84]Per Maxwell P in Haden Engineering v McKinnon (supra) at paragraph [11]

293     The plaintiff has experienced constant face and jaw pain since the accident.  About three days a week, this pain is very severe.

294     The plaintiff continues to have problems with eating, having difficulty chewing harder foods.  Her pain-free mouth opening has also decreased and, as a result, it is ever harder to sneeze, eat or talk for long periods.

295     Although there was no apparent difficulty talking whilst being cross-examined for over two hours, the plaintiff described experiencing pain during that time and increased teeth grinding.

296     There was no challenge to the plaintiff’s evidence as to her experience of pain and restriction.  Her complaints of this nature were mentioned throughout to treating doctors and medico-legal examiners who accepted they were related to her accident TMJD. 

297     It was conceded by the defendant the plaintiff has jaw pain which causes discomfort.[85]

[85]T186

298     The plaintiff has continued to require painkillers for ongoing facial and jaw pain, presently taking Panadeine Forte on a regular basis.

299     As Dodds Streeton noted in Kelso v Tatiara Meat Company Pty Ltd,[86] where chronic pain was a prominent feature of the appellant’s case –

“… the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.”

[86][2007] VSCA 267 at paragraph [199]

300     Since the accident, the plaintiff has suffered headaches of some severity and was recently referred to Dr Tomlinson in this regard.  Whilst he does not explain the cause of these headaches, Professor Gerschman described them as interacting with the plaintiff’s TMJD. Dr Marvan thought the plaintiff’s headaches were consistent with an increase of parafunctional activities such as grinding and clenching.

301     In addition to medication and wearing a splint at night, the plaintiff has also undergone physiotherapy including ultrasound treatment which gave her short-term benefit.  She also found some benefit with laser acupuncture.

302     The plaintiff’s facial pain impacts on her social life with reduced motivation to go out with friends or engage in other sporting or recreational activities such as tennis, long walks and camping.

303     The plaintiff is unable to work the full-time hours she would like both as a result of both her facial pain and her psychiatric condition.  Her mother confirmed the plaintiff’s problems at work due to her pain and migraines and the arrangements she made as manager of the pharmacy to cope with these problems.  

304     The plaintiff’s sleep is uncomfortable, having to wear the splint, but is predominantly affected by her PTSD symptoms and depressive condition.

305     The plaintiff is still a relatively young woman, aged only twenty six.

306     In Stijepic v One Force Group Aust Pty Ltd,[87] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[87][2009] VSCA 181 at para 43

307     The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

308     I am also permitted to take into account the expected mental consequences of the plaintiff’s TMJD when considering pain and suffering consequences.[88]  Included in this category is the plaintiff’s frustration and upset at her facial pain and the restrictions it places on her daily activities. 

[88]Richards v Wylie (supra) per Winneke P at paragraph [17]

309     Although Dr Marvan may have been optimistic at an early stage as to resolution of the plaintiff’s TMJD, clearly this has not occurred and the plaintiff continues to suffer a range of problems due to that condition.  As the TMJD has persisted for nearly five years with no improvement, I am satisfied the impairment is long term.

310     Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s TMJD, when judged by comparison with other cases in the range of possible impairments, can be fairly described as at least “very considerable” and more that “significant” or “marked” – see Humphries v Poljak.[89]

[89](Supra) at 140-1

311     Having made that finding, I am not required to consider the application pursuant to paragraph (c).

312     Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.

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