Camilleri v Transport Accident Commission
[2016] VCC 1914
•14 December 2016
methadone–
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04988
| NATALIE ANN CAMILLERI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 September and 3 and 4 October 2016 | |
DATE OF JUDGMENT: | 14 December 2016 | |
CASE MAY BE CITED AS: | Camilleri v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1914 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the spine – Post-Traumatic Stress Disorder and Adjustment Disorder – credit – pre-existing substance use and personality disorders
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Richards v Wylie (2000) 1 VR 79; Guppy v Victorian WorkCover Authority [2010] VSCA 164 (25 June 2010) Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors [2006] VSCA 254; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; O’Donnell v Reichard [1975] VR 916
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr P Gates | Verduci Lawyers |
| For the Defendant | Mr M Ruddle | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the transport accident, which occurred on 3 May 2010 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
(a) serious long-term impairment or loss of a body function; or
…
(c) severe long-term mental or severe long term behavioural disturbance or disorder.”
4 The loss of body function relied upon in this application is the spine.
5 The mental or behavioural disturbance or disorder relied upon is Post-Traumatic Stress Disorder and Adjustment Disorder.[1]
[1]Transcript (“T”) 216, Lines (“L”) 25-27
6 The plaintiff seeks leave to issue proceedings at common law.
7 The plaintiff relied upon four affidavits: three sworn by the plaintiff on 16 July 2014, 7 March and 27 September 2016 and an affidavit of her mother, Ms Ann Camilleri, sworn 24 August 2016.
8 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
Relevant legal principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]Section 93(17)(a) and (c) of the Act
10 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by her was as a result of the transport accident;
(b)the injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
11 In considering a physical injury, the enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[3] where the majority of the Court of Appeal said:
“To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think “long term” is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[4]
[3][1992] 2 VR 129
[4] Humphries & Anor v Poljak (supra) at 140
12 The serious injury defined by sub-paragraph (a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of, the impairment of a body function for the purposes of sub-paragraph (a) of the definition of “serious injury”.[5]
[5]Richards & Anor v Wylie (2000) 1 VR 79
13 The judgment of the Court of Appeal in Mobilio v Balliotis[6] resolved the legal meaning of “severe”. In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[7]
[6][1998] 3 VR 833
[7]Per Brooking AJ in Mobilio v Balliotis (supra)
14 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[8]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. … .”
[8][1998] 1 VR 702
15 The wrongdoer must take the plaintiff as he finds him or her; he must compensate only for the damage he has caused. Based on Petkovski v Galletti,[9] an analysis must be made of the extent of impairment of the body function or mental or behavioural disturbance or disorder before and after the relevant injury, and any additional impairment must involve serious long-term impairment of body function, or severe long-term mental or behavioural disturbance or disorder.
[9][1994] 1 VR 436 and affirmed in Guppy v Victorian WorkCover Authority [2010] VSCA 164
16 In determining the application, the Court must make the assessment of serious injury at the time the application is heard.[10]
[10] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
The issues
17 Counsel for the defendant informed the Court that the following issues arose in this case:
·the plaintiff’s evidence was unreliable and her credibility was in issue;
·there was no evidence of any significant physical condition or injury affecting the spine related to the transport accident;
·the plaintiff’s psychiatric condition was in dispute; and
·the plaintiff had pre-existing substance use and personality disorders and, accordingly, there is no psychiatric condition caused by the transport accident.
The Plaintiff’s background
18 The plaintiff is aged thirty-eight. The plaintiff’s evidence was that she left school at the age of seventeen or eighteen after completing her VCE. She undertook a computer course at Williamstown Community Centre. Her son was born on 15 December 1996 and she was at home caring for him for about twelve months before commencing work.[11]
[11]PCB 11
19 Between 1993 and 2001, the plaintiff’s evidence was that she worked part time as a sales assistant at Toy Kingdom, Delta Music and Tyrell’s Pharmacy and as a part-time receptionist and cleaner at a physiotherapy clinic. In 2002, she operated a switchboard at The Age newspaper for approximately six months. In 2006, she worked full time as a sales assistant for approximately six months at Cash Converters in Yarraville. In 2007, she worked for three months at Harvey Norman in Highpoint as a clerk. Between 2007 and 2010, the plaintiff’s evidence was that she was caring for her son.[12]
[12]PCB 12
20 On 3 May 2010, the plaintiff was involved in a transport accident, the subject of her claim. On the day after the transport accident, she was due to start a Traffic Control course (Red Card).[13] Following the transport accident, she obtained a Certificate III and IV in Aged Care and said she planned to return to work.
[13]PCB 13
21 It was not in dispute that the plaintiff has a history of heroin, cannabis and benzodiazepine abuse. The independent evidence, being the medical records of treating doctors and admission notes from hospitals and rehabilitation providers, was that the plaintiff had been using drugs since about 2000 when she met Rodney, the driver of the car at the time of the transport accident, at age twenty-one.[14] The relationship became abusive and she sought an intervention order against him. The relationship was “off and on”.
[14]Defendant’s Court Book (“DCB”) 113
22 The plaintiff was cross-examined about her medical history dating back to the mid-2000s. She reported to a number of the current medical witnesses that she was suffering memory loss and/or lack of concentration. I accept that the plaintiff could not reasonably recall, in any detail, what she was reporting to a doctor and what medication her doctors were prescribing for her from the mid-2000s. I take this into account when considering the credit of the plaintiff.
Credit of the Plaintiff
23 Of central importance is the credibility of the plaintiff as a witness and as a historian of her symptoms to medical practitioners. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[15] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[16]
[15]For example Mobilio v Balliotis (supra); Barwon Spinners Pty Ltd & Ors v (supra) at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14] and [19]
[16]Dordev v Cowan & Ors (supra) at paragraph [19]
24 The fact that a court determines that a plaintiff is not a reliable witness, either in general or in respect of particular matters, does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded. In Cakir v Arnott’s Biscuits Pty Ltd,[17] the Court of Appeal said that an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Further, that regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[18]
[17][2007] VSCA 104 at paragraphs [49]-[58]
[18]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
25 Counsel for the defendant submitted that the plaintiff was not a reliable witness for the following reasons:
·Firstly, Dr Aufgang’s observations of the character of the plaintiff as her treating general practitioner before and after the transport accident;
·Secondly, the plaintiff failed to fully disclose or was incorrect in what she did disclose of her personal circumstances in her three affidavits, including pre-existing depression, anxiety, drug-induced psychosis and her drug use at the time of the transport accident;
·Thirdly, the plaintiff failed to acknowledge the extent of her drug use. The plaintiff gave contradictory evidence both in affidavits and her evidence to the Court as to her drug habit prior to the accident, her involvement with caring for her child and her ability to work as at the date of the accident. The plaintiff gave confused evidence about her heroin use, her problems with her knee and drinking alcohol; and
·Fourthly, the plaintiff failed to give an accurate history of her health condition, both physical and mental, to many of the medical witnesses, including both treaters and medico-legal witnesses.
26 In response, counsel for the plaintiff submitted that just because the plaintiff was a drug addict and might have “told some lies”, that it did not preclude the Court from finding that she had suffered a physical injury to her neck and back and aggravation of her depression.[19]
[19]T194-195
27 I shall address each issue raised by counsel for the defendant in turn.
(a) The Plaintiff failed to properly disclose material issues in her affidavits
28 As indicated, the plaintiff filed three affidavits during the course of the proceedings.
29 The plaintiff’s first affidavit was sworn on 16 July 2014. In that affidavit, the plaintiff makes no reference to her medical history prior to the transport accident, including any reference to pre-existing problems with depression, anxiety or drugs, which the plaintiff acknowledged in Court.[20]
[20]T131
30 As to the plaintiff’s employment, at paragraph 11 of her first affidavit, she said that she was a “single mother caring for my child” between 2007 and 2010. However, counsel for the defendant, in closing submissions, said that this was a misrepresentation and “manifestly untrue”.[21] I agree with counsel for the defendant, as the objective evidence was that between 2006 and 2007, the plaintiff’s son had commenced living with the plaintiff’s parents, who became his guardians and remained so for many years, and that the plaintiff had weekly contact on weekends.[22]
[21]T130 -131
[22]DCB 113
31 Following the transport accident, the plaintiff deposed that she had been treated for her transport accident injuries by a chiropractor, which was confirmed by, Dr John Irinyi, general practitioner. She also said that she had received psychological treatment from Ms Malini Singh, psychologist, who confirmed that she had treated the plaintiff for depression and anxiety on a background of chronic narcotic use.[23] However, there was no acknowledgement by Ms Singh that the plaintiff had received psychological treatment as a result of the transport accident injuries. The plaintiff said she had attended upon Dr Clive Kenna, musculoskeletal pain management specialist. However, the plaintiff consulted Dr Kenna at the request of the defendant for the purposes of assessment and he did not treat the plaintiff.
[23]DCB 3
32 In the plaintiff’s second affidavit, sworn 7 March 2016, the plaintiff deposed, at paragraph 7, that she previously had a heroin addiction and was on a Methadone program but had been clean for four years prior to the transport accident on 3 May 2010. This is inconsistent with the records of Dr Michael Aufgang, general practitioner, the admission records of the Emergency Department at Werribee Mercy Hospital in May 2007 and April 2008 and the records of DAS WEST of September 2009, where the plaintiff attended for six days’ detoxification from heroin, cannabis and alcohol. The plaintiff’s evidence was that, at earlier points in her life, she had a heroin addiction but that she had been “clean for four years”.[24] In cross-examination, counsel for the defendant queried whether this was true:
[24]PCB 16
Q: It is not true, is it?---
A: Yes, it is true. I was clean, but I’d relapsed – a relapse is like one day or two days messing up and then back to normal.
Q: One day or two days, every second day, every week, every month, every year?---
A: Of like a fortnight, probably. One day a fortnight, I think.[25]
[25]T25-26
33 Further, the plaintiff said in her second affidavit that as a result of the accident, she relapsed into heroin use for a period of three years on an “on-and-off” basis. She subsequently continued with the Methadone program. She referred to the treatment she had received after the transport accident from Dr Irinyi and Dr Steve Stojkovski, general practitioners. She said that she was treated by Dr Rainsford, general practitioner, for her drug addiction, namely, that she was on a Methadone program to try and wean her off heroin which, to date, had been reasonably successful, although she had a relapse following the transport accident, because of the severe pain she was suffering at the time. The plaintiff omitted to refer to her treatment from Dr Aufgang from 2005 to 20 December 2011. Further, the plaintiff’s evidence in relation to her drug addiction was not supported by the medical records of Dr Aufgang and Dr Rainsford. Dr Rainsford did not provide a medical report. In the absence of a report from Dr Rainsford or her being called to give evidence, in accordance with the case of O’Donnell v Reichard,[26] I conclude that it is unlikely that Dr Rainsford would have supported the plaintiff’s evidence. Counsel for the defendant also asserted that a “relapse” of three years was not a relapse but a “continuation of previous narcotic usage”.[27] I accept that the plaintiff did not fully disclose her history of drug use in her affidavit.
[26][1975] VR 916
[27]T131-132
34 In addition to the pain and suffering, the plaintiff deposed that she had become anxious and depressed, was withdrawn and stayed at home and watches television. She said she had suffered from a loss of self confidence and self-esteem, her sleep was unsettled and she was often awake at night. The plaintiff attributed these psychological injuries as a consequence of her physical injuries. However, I note these are complaints that the plaintiff was reporting to her treating medical practitioners prior to the transport accident.
35 In the third affidavit sworn by the plaintiff on 27 September 2016, she deposed that, prior to the transport accident, she had suffered depression, for which she had taken medication. At the time of the transport accident, she was able to cope with everyday matters and was fit enough to start a full-time job as a traffic controller with the Global Group of Companies. The plaintiff’s evidence was that she was to start a Traffic Control course (Red Card) at the time of the accident. Dr Aufgang confirmed that she reported this to him on the day of the transport accident. The plaintiff’s evidence was that she later passed the test, but due to her physical and psychological injuries suffered from the accident, she was unable to perform the work. Conversely, the medical records of Dr Aufgang confirm that on the day of the transport accident, she was still using drugs and was requiring an increase in Methadone. The Ambulance Report and Hospital records confirm that approximately two hours after she saw Dr Aufgang at the time of the accident, both she and the driver were drug affected. However, she did report that she had a job and would be doing traffic management, even though she had, for the first time, not completed the training.
36 Further, the plaintiff referred to suffering nightmares, panic attacks and flashbacks. The medical records pre-accident confirmed the plaintiff reported complaints prior to the transport accident but that they centred on Rodney and his reappearance in her life. Further, these complaints were not reported to treaters following the transport accident. In addition, the plaintiff referred to inflicting cuts on her arms for which she required sutures. The objective evidence is that this occurred prior to the transport accident.
37 Ultimately, I find that a significant portion of the plaintiff’s material in three of the affidavits was shown to be incorrect or not fully disclosed when compared to the objective evidence.
(b) The evidence of Dr Aufgang as to the Plaintiff prior to and after the transport accident
38 In his reported dated 29 April 2016, Dr Aufgang, general practitioner, at Meadows Medical Centre, confirmed that he treated the plaintiff intermittently between 2005 until December 2011. Counsel for the defendant told the Court that he was the only treater who saw the plaintiff before and after the transport accident.[28]
[28]T129-130
39 Dr Aufgang reported that he treated the plaintiff for a number of problems including poly-substance misuse, Borderline Personality Disorder, drug-induced psychosis, and underlying Thought Disorder and Depression.
40 Dr Aufgang said her psychological disorders were not assisted when she was involved in a motor vehicle accident on 3 May 2010. He understood her injuries to be a mild head injury and a back injury. He said that following the transport accident, she escalated her poly-substance misuse, seeing other doctors to obtain multiple benzodiazepine and opiates, despite being on an opiate treatment program. He referred her to a specialist Methadone service at DAS WEST so that she could receive case management and total integration care.
41 Dr Aufgang reported that both before and after the accident, he attempted to centralise her care but said she persisted in “doctor shopping”.[29] Further, he said that the plaintiff continued to misuse amphetamines, and he questioned whether it was as infrequently as she admitted to. He said there was little evidence to support the use of the drugs that she was previously addicted to, after the accident from a medical management point of view. He recommended that all information from treaters, medical and psychiatric, and from hospitals, be obtained both prior to the accident, in order that her baseline could be assessed.[30] He said that:
“It is highly relevant to note that chaos was a feature of Natalie’s life prior to her accident. The circumstances of her accident cause me to question how stable she really was when it occurred; Natalie told me that the driver of the car was under the influence of Heroin when he fell asleep at the wheel.”[31]
[29]PCB 131
[30]PCB 131
[31]PCB 130
42 Further, he commented:
“I feel it would be prudent for you to receive all correspondence from all treaters medically, psychiatrically, & from hospitals. Availing all assessments would be wise. These should include information from prior to the accident so that you can understand what her baseline was.”
43 Counsel for the defendant submitted that this suggestion by Dr Aufgang was not undertaken by the plaintiff’s solicitors.[32]
[32]T130, L18-19
44 Dr Aufgang’s observations of the plaintiff serve to undermine the plaintiff as a credible and reliable witness.
(c) The Plaintiff’s failure to acknowledge the extent of her drug use
45 The records of Dr Aufgang from November 2005 to December 2011 were tendered before the Court. The records were detailed and confirmed that the plaintiff was being treated by him for a drug habit both prior to and post the transport accident.
46 Dr Aufgang’s records confirm that the plaintiff reported obtaining medication from other medical practices, including Dr Irinyi, who prescribed buprenorphine,[33] Diazepam,[34] Seroquel, Luvox and Xanax.[35]
[33]DCB 92
[34]DCB 89
[35]DCB 88
47 In May 2007, she was admitted to the Werribee Mercy Hospital Emergency Department, Werribee Mercy Mental Health Program,[36] following an attempted assault on a member of the public and expressing suicidal ideations, with a history of poly-substance abuse. She responded well to anti-psychotic treatment.
[36]DCB 92, 120, 132 and 153
48 In April 2008, she was admitted to the Werribee Mercy Hospital Emergency Department with an accidental laceration to her left forearm after taking heroin.[37]
[37]DCB 152
49 In September 2009, she referred herself to DAS West for six days’ detoxification from heroin, cannabis and alcohol.[38]
[38]DCB 108
50 Dr Aufgang’s records included Mental Health Care Plans conducted in November and December 2009. In cross-examination, counsel for the defendant asked the plaintiff about her responses to the November 2009 examination. She confirmed that in the past four weeks leading up to the test, she responded, for all of the questions, that she felt tired for no good reason, she felt nervous and hopeless. She was told that she rated 40 out of a maximum of 50, which meant she rated pretty highly. She agreed she was told that these are the complaints she makes now. Counsel for the defendant said that the plaintiff rated highly in areas where her complaint is much the same as her current complaint. In reply, the plaintiff said it was a different situation and the reasons why she answered those questions the way she did in 2009 were different to now.[39]
[39]T92
51 The plaintiff was cross-examined about her drug use during the course of her life. As to her drug use before the transport accident, counsel for the defendant asked the plaintiff:
Q: “What about before the accident?---
A: That was, yeah - - -
Q: Why were you taking opiates once a week or two or three times a week then? That wasn’t because of pain, was it?---
A: Sorry?
Q: That wasn’t because of any pain, was it?---
A: No, back then it was just to deal with the situation I was dealing with.
Q: The psychological issues?---
A: Yes, Rodney assaulting me and stuff like that which I dealt with at the psych ward. I had to get help, yes.
Q: You were treated for depression before this motor car accident, weren’t you?---
A: Yes, I was treated, yes, and I got better. Everything was going okay.
A: So - what - everything gets better so that by 3 May 2010, you are better, you don’t have any problems?---
Q: Sorry [witness distressed].
… .
Q: So that by 3 May 2010, you have dealt with all the problems and you’re better?---
A: Yes, that’s correct.
Q: And you don’t need to use opiates or anything of that description?---
A: Now the only reason I use opiates is for the pain because I can’t deal with pain and no-one seems to be helping me. Before I used to always reach out for help and I had all the help I needed, but now it just seems like the last five years no-one is helping.
Q: But before the accident, you might have reduced your narcotic intake, but you kept relapsing again. You know what that word means?---
A: Yes, but I got my life together and mum didn’t have cancer, I was happy and I got a job and everything was falling into place and then everything just fell apart again.
Q: How do you explain then the heroin use on the day of the accident?---
A: Well, I can’t explain that. I don’t - unless - if you’ve got doctor reports saying that I obviously had it in my system, I don’t understand, because I don’t think Rodney was – it’s confusing what you’re saying to me. I don’t know what you’re saying. It seems different to what happened.”[40]
[40]T53, L25 – T54, L7 and T54, L10-T54, L30
52 Further, counsel for the defendant asked the plaintiff whether she had used drugs on the night of the transport accident. The following exchange took place:
Q: How do you explain the ambulance report which details that there were fresh track marks in your arm?---
A. Well, I don’t believe that.
Q: So they got it wrong, did they?---
A: Was that written on the – was that actually written down to say that I- - -
Q: Yes, it was?---
A: Well, did – maybe the blood test? Was there a blood test done?---
Q: I am reading from the ambulance report. How do you explain the ambulance people reporting fresh track marks on your arm?---
A: I can’t – I – I can’t remember. May have been – I don’t know.
Q: They spoke to you at the scene and they’ve recorded you saying this. ‘Stated she had a hit of heroin at approximately 1900 hours this evening at 7 o'clock’?---
A: I don’t think that came from my mouth.”[41]
[41]T26, L23 – T27, L6
53 While consulting Dr Aufgang, the plaintiff also consulted Dr Irinyi, general practitioner at the Williamstown Medical Centre, until he retired in December 2010. Dr Steve Stojkovski at the Williamstown Medical Centre took over the care of the plaintiff and is currently treating the plaintiff. There were limited records of the Williamstown Medical Centre before the Court. However, there were medical reports of Dr Irinyi and Dr Stojkovski. The only report from Dr Irinyi was dated 16 December 2010. He confirmed that as a result of the transport accident of May 2010, the plaintiff suffered a laceration to the forehead: some concussion, headaches and pain in the neck and back. The symptoms persisted with emotional upset requiring sedatives and counselling by a psychologist, consistent with Post-Traumatic Stress Disorder. He said the predisposing factors were the plaintiff was on a Methadone program, suffered Anxiety/Depressive Disorder and emotional instability.[42]
[42]PCB 27
54 I accept that, in the period leading up to the transport accident, the plaintiff had a drug problem for which she was receiving medical treatment with limited success and required hospitalisation on occasions. I also accept that on the night of the transport accident, she was drug affected.
55 The reports of Dr Stojkovski related to the injuries the plaintiff suffered in the transport accident. Whilst Dr Stojkovski did not comment on the plaintiff’s drug dependency, he was aware that the plaintiff’s Methadone treatment was provided by another general practitioner, Dr Aufgang.[43] He prescribed medications, including Cymbalta, Diazepam, Endone, Panadeine Forte and Xanax, and noted that, in April 2011, the plaintiff was on multiple medications, which he was not comfortable with. In June 2011, Dr Stojkovski reported that there were concerns about the plaintiff being on benzodiazepines and Methadone and this was managed via DAS WEST. He continued to prescribe Diazepam, Panadeine Forte and Cymbalta.
[43]PCB 32
56 Following the transport accident in 2010, the medical records of Dr Aufgang disclose the plaintiff was obtaining medication from friends, Dr Irinyi and the Williamstown Hospital, who gave her Diazepam and Endone because she “claimed she was in a great deal of pain”,[44] off the street and getting take-aways from the pharmacy and, on occasions, “without authority”.[45] Dr Aufgang was suggesting she attend DASWEST to sort through her medication.
[44]PCB 80
[45]PCB 81
57 The records of 2011 of Dr Aufgang disclose a similar pattern; however, the plaintiff was admitted to DAS WEST in February 2011 due to a suspected overdose. The diagnosis was drug-induced psychosis, poly-substance abuse, and it was noted that she responded well to treatment with antipsychotic medications. The ambulance records of 18 February 2011 noted that her pre-existing history included panic attacks, depression, Acquired Brain Injury (“ABI”) caused by the motor vehicle accident, Schizophrenia and back problems post motor vehicle accident.
58 It was accepted by Mr Ruddle, counsel for the plaintiff, that Dr Aufgang treated the plaintiff for her drug-related problems, and Dr Stojkovski treated the plaintiff for her physical problems, but was aware of her psychological issues.
59 Ultimately, the plaintiff agreed that she was required to provide urine samples for drug screening and that, on many occasions, her samples were contaminated.[46]
[46]T42, L25-28 and T43, L1-19
60 The evidence was that, in December 2011, Dr Kathryn Rainsford, general practitioner of the Joslin Clinic, took over from Dr Aufgang in the treatment of the plaintiff’s drug condition. There was no medical report from Dr Rainsford; however, her records confirm the plaintiff consulted her clinic on 9 August 2007, on one occasion for an unrelated matter, and recommenced at that clinic on 23 November 2011 through to June 2016. She saw the plaintiff regularly on a monthly basis. Her records were detailed and confirmed that the plaintiff was being treated by her for her drug habit and for a range of other medical conditions. Dr Rainsford’s notes confirm that she was provided with the records of Dr Aufgang.[47] The plaintiff continued to consult the Williamstown Medical Centre, and Dr Stojkovski in particular, in relation to the transport accident injury.
[47]DCB 178
61 The plaintiff was cross-examined about telling Dr Rainsford about her drug use in December 2013 as follows:
Q: T192 (scil DCB 192). This is for you and this is talking to Dr Rainsford in 2014, that you were using once a fortnight when you get paid?---
A: On my own, yes.
Q:Yes?---
A:I would use $50 a fortnight when I had bad pain, yes, I did.
Q:Yes?---
A:I told you, yes.
Q:You were smoking marijuana at that time?---
A:What – sorry?
Q: 2014?---
A: Yes, I would have been smoking a little bit of marijuana.
Q: Yes, and you had smoke[d] it before 2010, hadn’t you?---
A: Yes, yes, Your Honour. Yes.”[48]
[48]T47, L6-16
62 And again in June 2015:
Q: Page 198, Your Honour, of the defendant’s court book. I suggest to you that you saw Dr Rainsford on 9 June 2015 and this was after you’ve had your seizure. Does that help you? About the time you had your seizure?---
A: Yes.
Q: I suggest to you that you told Dr Rain[s]ford that your partner, Tony, was using a lot?---
A: No, well, I don’t think he was using, but he was probably smoking maybe Marijuana because he seemed tired sometimes. But I don’t - I can't say that he was. It’s not - - -
Q: If you couldn’t say, why would you tell Dr Rain[s]ford? In fact, let me read to you all of what she has recorded you as having said?---
A: Yes, okay.
Q: This is under the heading of, ‘Opiate Dependence’: ‘Has relapsed.’ That’s you. ‘Currently using three to four times a week.’ Got any comment to make on that?---
A: I don’t think I could have. I couldn’t have been using three to four times a week and keep my life going the way - no.
Q: ‘Partner, Tony, using a lot’?---
A: Yes, probably Marijuana because he, I think - - -
Q: No, did you tell the doctor that?---
A: I don't know what I told the doctor, Your Honour.
Q: You knew that Tony - and you still know that Tony is a user?---
A: I don’t know what Tony does. I don't know what Tony does.
Q: The next note is: ‘Trying to get both’ - and that's both you and Tony, presumably – ‘into detox’. This is in 2015?---
A: Not at all.
Q: No?---
A: No, not him. He doesn’t need detox. If anyone, maybe myself, yes, but not him. But I don’t need detox at this point because I’m not - no, I’m not using, like, every day and stuff, so I don’t - I haven’t got a habit.”[49]
[49]T50, L22 – T51, L21
63 The plaintiff was cross-examined about Dr Rainsford’s records in July 2015 as follows:
Q: “Yes?---
A: I only see her once every three months, Kathryn Rainsford, to get a script once every three months.
Q Let’s go back to p.200. 10 July 2015, you saw her and the reason for visit as recorded was opiate abuse?---
A: She prescribes my Methadone, Your Honour. She is my prescriber. She has been my prescriber for five years now.
Q: 10 July 2015, you had a problem with accessing the Methadone due to recent fits and you had lost your licence because of that?---
A: No, I never, no.
Q: Come on. They took your licence away from you or they told you not to drive?---
A: For having the seizures, that’s correct, yes.
Q: That created a problem for you because you couldn’t access your Methadone?---
A: That’s correct, yes, yes, I had Tony driving.
Q: Tell me, when you go to the - or do you need to or have you ever needed to go to the chemist every day to get the Methadone?---
A: Basically, yes, that’s how it works, but I get take aways now, three take aways a week.
Q: TA’s are take aways, aren’t they?---
A: TA’s, yes, yes.
Q: One of the reasons for only allowing one dose at a time, this is so you don’t abuse the prescription drug that you’re getting; correct?---
A: Well, you don’t abuse - you wouldn’t.
Q: You don’t stack up on your take aways and take them all at once?---
A: You take them daily. No, you take them daily because you need to. Your body needs that.
Q: Didn’t you have a problem in July 2015 that you talked to - this is Dr Wayland at the same clinic?---
A: Yes, because she wasn’t there, that’s right.
Q: ‘Problem accessing Methadone now. Due to recent fits has lost licence.’ That’s correct, isn’t it? You had a problem getting up there because you didn’t have your licence?---
A: No, I had Tony as my carer, so Tony took me in there.
Q: She also noted or it’s also noted: ‘Due to heroin use shown in urine has lost take aways’?---
A: Yes, that’s correct.
Q: So they don’t trust you with - - -?---
A: That’s correct, yes, I did lose all my - I lost my - I was at one stage getting five take aways a week because I was doing my course, I was getting better, and then I had one dirty urine and she pulled them all back, that’s correct, yes, yes.
Q: You had more than one?---
A: I had five a week, yes.
Q: One dirty urine, though, didn’t you?---
A: I had a few dirty urines, I think.”[50]
[50]T52, L7 – T53, L19
64 The plaintiff was cross-examined about her drug dependence over the period 2005 to 2016 and what she told medical witnesses, in particular, Dr Aufgang and Dr Rainsford.. I took the view that she could not possibly remember the details of what she was reporting to doctors over that period. Much of the plaintiff’s evidence was inconsistent and confusing with what she was reporting to her general practitioners at the relevant examinations. In my view, the plaintiff failed to acknowledge the true nature and extent of her drug use prior to and after the transport accident. Accordingly, I rely heavily on the objective evidence, in particular the medical records of Dr Aufgang and Dr Rainsford.
(d) The Plaintiff’s failure to give an accurate history of her medical condition to the medical witnesses
65 Given my comments above, I concluded that much of the information the plaintiff provided to medical witnesses was inaccurate. I will deal with this further below when I consider the medical records in detail in my reasons. This is another factor that I take into account in considering the plaintiff’s credit.
Conclusion on credit
66 In considering the credit of the plaintiff, I must consider the evidence as a whole.
67 In my view, the plaintiff’s presentation and her evidence in Court reflected the comments made of the plaintiff by her treating general practitioner, Dr Aufgang, as outlined above. I accept that a significant portion of material in the plaintiff’s three affidavits was inconsistent with the objective evidence, namely the records of medical practitioners and records of hospitals and rehabilitation providers. In addition, the plaintiff failed to acknowledge the true extent of her drug use and give accurate histories of her health condition to medical witnesses. However, I accept that the plaintiff reported to a number of the current medical witnesses that she could not recall her consultants and prescriptions from treaters. I concluded that the plaintiff was a poor historian.
68 Accordingly, as there are issues with the reliability of the plaintiff’s evidence, I rely heavily upon the objective evidence.
Analysis of the evidence
The physical injury – the spine
(a) Pre-accident injuries to the Plaintiff
69 There was some suggestion by counsel for the defendant that the plaintiff had suffered injuries to her neck, back and right knee prior to the transport accident.
70 In respect to the right knee, the evidence was that the plaintiff reported right knee pain to Dr Aufgang in December 2008. In February 2009, the plaintiff was referred for x-ray of her knee. As a result of the x-rays, Dr Aufgang referred the plaintiff to Mr Jonathan Hooper, orthopaedic surgeon.[51] The evidence is that the plaintiff did not consult Mr Hooper. I accept that the plaintiff reported right knee pain prior to the transport accident for which she sought medical attention and x-ray but failed to seek specialist attention. The body function relied upon in this application is the spine. The plaintiff reported right knee pain to Dr Stojkovski in April 2013. An x-ray was ordered, which showed no abnormality. The plaintiff made no further complaints of right knee pain to Dr Stojkovski. Accordingly, I consider it unrelated to the transport accident and forms no part of her claim.
[51]The medical records of Dr Aufgang – DCB 87 and 88
71 In May 2008, the medical records of Western Health disclosed that the plaintiff complained of back pain; however, there is no evidence that the plaintiff sought medical treatment. Accordingly, I accept that any back pain the plaintiff suffered prior to the transport accident was minimal. I accept that any complaints of the spine are in large part related to the transport accident.
(b) Transport accident injury
72 The assessment that I must make of the plaintiff must be undertaken at the time of hearing the application. Accordingly, I will be assisted by the up-to-date medical evidence relating to the spinal injury.
73 In 2016, Dr Stojkovski, treating general practitioner, said the plaintiff presented with a flare-up of her lower back in May 2015. There was no sciatica. In October 2015, she reported right-sided lumbar pain. An MRI scan of the lumbar spine was undertaken in December 2015. He said there was no significant MRI finding. He reported a mechanical lower lumbar back pain remained the differential diagnosis. An MRI scan of the neck performed in March 2016 reported degenerative changes at C4-5, C5-6 and C6-7 with significant C6 foraminal narrowing bilaterally. He concluded that the diagnosis of the lumbar pain remains as mechanical back pain. He said she would benefit from physiotherapy/chiropractic treatment/pool/hydrotherapy. She would need ongoing analgesia. He said she required a detox program, as she has a benzodiazepine and codeine dependence. He said there had been no report of lower back pain in the past known to him. He confirmed that he was prescribing Panadeine Forte and Valium. The plaintiff had been weaned off Xanax.
74 In 2014, Dr Stojkovski said of the transport accident:
“As far as I am aware, on the basis of probability rather than possibility it may have had some effect on her capacity for work, and the lower back pain may have affected her social and domestic lifestyle. She also has other bio psychosocial issues, (see clinical notes) which makes it difficult for me to comment about her social and domestic life. I do not have the expertise to answer this question adequately with any authority.
The medical treatment has been described above which mainly consists of pain management. She had chiropractic treatment prior to my management … .”[52]
[52]PCB 33
75 I note that Dr Stojkovski did not refer the plaintiff to a specialist in relation to her physical injury of neck and low back pain.
76 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in October 2013 and April 2016 at the request of the plaintiff’s solicitors. In 2013, Mr Shannon said, of the plaintiff, that she was somewhat vague and confused but that this may be the effects of medication. She has a belief that she has an ABI. In April 2016, he said there was no significant pathology of the thoracic and lumbar spine. There is no significant degenerative change or disc bulging and this is consistent with an absence of any objective neurological abnormality.
77 Mr Shannon reviewed the MRI scan of the neck and said there was some evidence of disc degeneration, although the changes were quite mild. There was no significant disc protrusion, although there is some foraminal stenosis. He said she had no evidence of radiculopathy, and while the transport accident may have aggravated the degenerative change, there does not appear to be any significant long-term sequelae from the accident. He said she had a normal, or near normal range of movements of the cervical spine; however, physical findings did fluctuate during the examination.
78 Mr Shannon accepted that the plaintiff may have some ongoing discomfort in her neck and back and that she is likely to be limited in domestic and work activities of a heavy nature. She may not be ideally suited to work as a carer where there is significant bending and lifting involved. He noted that her work capacity was influenced by the significant requirement for medication and by her development of epilepsy, which was unrelated to the transport accident. He said, from an orthopaedic point of view, her prognosis was favourable, as there was no major pathology identified in her neck or back.
79 Mr Steedman, general surgeon, examined the plaintiff in September 2011 and February 2016 at the request of the plaintiff’s solicitors. He was provided with a history of significant neck aches every two days, lower lumbar backache every day, radiating down both legs. The plaintiff also reported that she did not get out of bed at all or until mid-afternoon. She did not provide this history to any other doctor, nor were there such complaints in the records of the general practitioners whom the plaintiff was consulting. Further, the plaintiff reported that, in the past, she was on heroin at the age of twenty-one, for six to eight years, which is up until 2007. He described the plaintiff as having suffered injuries to the head, neck and lower back.
80 When re-examined, the plaintiff reported back pain which was reasonably constant, right-sided sciatica and pain in her neck almost every day, which radiates to both arms, right worse than the left, and numbness in her fingers. On examination, the movements of her neck and lower back were limited. He said he did not think she was capable of any significant work, but provided no path of reasoning. He thought that her prognosis was probably for continuing trouble at the current level because it is now more than five years since the accident and she has not shown much improvement.
81 I consider the reports of Mr Steedman are of limited assistance for a number of reasons. First, he did not obtain an accurate history of the plaintiff’s injury. Second, he relied on what he was informed by the plaintiff. He did not have the detailed medical records of the general practitioners who had been treating the plaintiff both prior to and after the transport accident. He provided no path of reasoning in the conclusions which he reached. Third, the reports of Dr Stojkovski, the general practitioner who was treating the plaintiff for her physical injury, in February and March 2016, make no reference to daily neck pain radiating to both arms, right worse than the left.
82 Associate Professor Goldwasser, orthopaedic surgeon, examined the plaintiff in June 2015 and March 2016 at the request of the plaintiff’s solicitors. Associate Professor Goldwasser was provided with a report of Dr Stojkovski dated 9 November 2014. It was his opinion that the plaintiff probably suffered a soft-tissue injury to her lower back. He also concluded that she probably suffered soft-tissue injuries to her neck, and he noted that imaging showed evidence of degenerative changes in the neck, which were probably pre-existing conditions before the transport accident. He said there had been no major change in her condition since June 2015 and he considered her condition was likely to remain much the same for the foreseeable future. He noted that she attended the examination in March 2016 with a single point stick in her right hand but was able to walk independently without it.
83 It was Associate Professor Goldwasser’s view that her lower-back injury is most likely to affect her ability to work because she needed to alter her posture frequently during the consultation in June 2015. She interrupted the consultation so that she could have medication to ease her lower-back pain. He said, because of the symptoms with her lower back and because she needs to alter her posture frequently, she is unlikely to manage activities placing a heavy stress on her back, such as heavy lifting or repeated bending or stooping. He concluded that the plaintiff’s capacity for work is limited and the most likely work she would be able to do would be reception-type work where she could alter her posture from time to time and not be required to do heavy or strenuous activity. He thought she would not manage this on a full-time basis and more likely on a part-time or half-time basis.
84 In respect to Associate Professor Goldwasser’s comments, I note that the plaintiff sat in the witness box with no obvious signs of pain in her body. On one occasion she stood for a short period. She sat in Court for two days without standing. However, I note that, on the final day during submissions, she stood on a number of occasions. Further, Associate Professor Goldwasser was not provided with the medical records of Dr Aufgang and Dr Rainsford.
85 In March 2016, Dr James Rowe, specialist occupational physician, examined the plaintiff at the request of the plaintiff’s solicitor. He said the plaintiff currently still suffers with some neck and lower back pain. The neck pain sometimes radiates to the right arm and sometimes she has tingling there but it is not there all the time. The lower back pain radiates to the right leg and sometimes she has pain in the right knee, for which she wears and elastic bandage as a support of the right knee. She gets numbness from time to time in her arms and feet, which is not constant. On physical examination, there was some stiffness in movements of the neck. There was no real sign of radiculopathy in her arms. She had a good range of movement of her thoracolumbar spine and no signs of radiculopathy in the legs. He reported that she needs assistance at home from a carer and her mother, and that she is limited in what she can do. The evidence is that the plaintiff lives with a friend and former partner who is in receipt of a Carer’s Pension.[53] There was no evidence from the carer. The plaintiff’s mother swore an affidavit, but she did not depose to assisting her daughter with activities.
[53]I note that in the report of Dr Doherty the carer was described as Tony, DCB 63
86 Dr Rowe said she could work limited, part-time work in the disability field or in an office setting and that should be on a part-time and graduated basis. Restrictions would be necessary. She would be limited in her capacity to lift 5 kilograms at the outset. She would require the ability to sit and stand at will. Her initial return to work would need to be monitored and will be a long process. He described her prognosis as “somewhat guarded”. He was aware that the plaintiff had been on a Disability Pension “for years” and that she is a former heroin user. She has a history of having had treatment with Methadone for drug addiction and that continues under supervision. Dr Rowe was provided with limited material. He was not provided with the medical records of Dr Aufgang and Dr Rainsford.
87 In January 2016, Dr Chris Baker, specialist in occupational medicine, examined the plaintiff at the request of the defendant’s solicitor. It was his view that the complainant complained of neck, middle and upper back symptoms, which he considered are of a soft-tissue nature, with no evidence of radiculopathy. He would consider that after the period of time since the transport accident, the soft-tissue injuries to the neck and upper back have settled. He noted that the plaintiff had a history of previous drug abuse and said that whether there is any pre-existing neuropsychological condition should be determined by the appropriate specialist. From a physical perspective, he said he did not consider the plaintiff was suffering any significant physical problems. He said her complaints of anxiety and problems with thought and recall should be addressed by a neuropsychologist. He said the only way the transport accident could be a contributing factor would be that she suffered an ABI as a result of the head injury from the transport accident.
88 In July 2016, Dr Boys, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors. When examined, the plaintiff had limited active movements of the neck in all planes. There was no accompanying muscle spasm, and shoulder movements were free, full and painless. Neurological examination of the upper limbs showed intact muscle power, normal sensation and symmetrical deep tendon reflexes. The plaintiff stood without spinal deformity. Straight leg raising was 90 degrees bilaterally. Neurological examination of the lower limbs showed intact muscle power, normal sensation and symmetrical deep tendon reflexes. There is no measured muscle wasting of the thighs or calves. Examination of the right knee showed no abnormality.
89 Dr Boys said the plaintiff’s radiological findings in the cervical and lumbar spines are consistent with her age. He said the degree to which the plaintiff experiences pain is disproportionate to any objective evidence of dysfunction. The plaintiff has manifested, self-limited movement of the neck and manifested general muscular deconditioning with ongoing inappropriate use of a walking aid and lumbosacral support. He could find no evidence of any significant musculoskeletal condition specific to the transport accident. He said the plaintiff’s longstanding narcotic dependence and enhanced perception of disability are major factors in the plaintiff’s presentation at this time. He believed that non-organic factors predominate in this case. He said there was no ongoing, accident-related orthopaedic injury. He could find no evidence of a musculoskeletal condition which would, in the normal course of events, limit employment.
90 Dr Boys, who examined the plaintiff on behalf of the defendant, was the only medical witness who addressed the physical injury and was provided with the medical records and report of Dr Aufgang. He was also provided with the reports of Malini Singh, Dr Baker, Mr Shannon and the clinical notes of Werribee Mercy Hospital, together with the recent radiological reports. It was unclear what records were provided to the medical witnesses who examined the plaintiff at the request of the plaintiff’s solicitors, what was clear is that many of the plaintiff’s medical witnesses relied upon what the plaintiff was reporting to them, rather than what she was reporting to her general practitioner. Given my findings that I accept the plaintiff as an unreliable witness, I rely upon the medical reports of those witnesses who had been provided with the medical records of Dr Aufgang, namely, Dr Boys and, to a lesser extent, Dr Stojkovski.
91 The evidence was that there are a number of unrelated issues which have affected the plaintiff’s life. The plaintiff’s evidence was that, in 2015, she was diagnosed with epilepsy, she had three seizures and is currently taking medication, Keppra, for this condition. For a period, she was unable to drive. The plaintiff reported to Dr Stojkovski that she had her gall bladder removed. Her mother developed cancer but is now in remission and has returned to work. Her parents separated after many years. The plaintiff’s son, Jake, has been involved with drugs, which has been of great concern to the plaintiff.
92 Based on the up-to-date medical evidence, I accept that the plaintiff suffered a soft-tissue injury to her spine as a result of the transport accident. I am more influenced by the opinions of Dr Baker and Dr Boys that there is no ongoing accident-related physical injury attributable to the accident and as such, that the plaintiff’s application in respect of the physical injury should be dismissed.
93 However, some of the medical witnesses considered that the plaintiff was currently suffering a soft-tissue injury. For completeness, I will now consider the consequences of the plaintiff’s spinal soft-tissue injury and whether those consequences amount to a “serious injury”.
Medication
94 The current medical evidence of the plaintiff’s general practitioner, Dr Stojkovski, is that he prescribed Panadeine Forte and Valium in August 2016. He said that she is benzodiazepine and codeine dependent but did not say that this was due to the transport accident.
95 However, the medical evidence is that, prior to the transport accident, the plaintiff was being prescribed benzodiazepines. Dr Aufgang was concerned by her benzodiazepine input.
96 In 2006, an assessment outcome conducted by Justine Ruolle[54] noted the plaintiff was withdrawing from crystal methamphetamine, heroin, and benzodiazepines.
[54]Exhibit Book, page 11
97 In April 2007, the plaintiff reported to the Western Hospital Footscray Emergency that, on alternative days, she used amphetamines, Temazepam and takes Luvox and Xanax for depression and anxiety.
98 In July 2008, ambulance records reported responding to seizures and concussions. Pre-existing drug abuse. Heroin at 1800 hours. Medications: Luvox, Diazepam and Seroquel. The DASWEST Assessment dated 7 February 2009 recorded “med (18)”.
99 Dr Irinyi said, in 2010, that the plaintiff suffered predisposing factors, namely, she was in a Methadone program, Anxiety/Depressive Disorder, emotional instability. Based on the evidence, I accept that the plaintiff was using benzodiazepines regularly prior to the transport accident. The onus is upon the plaintiff to establish benzodiazepine dependence is due to the transport accident. I am not satisfied that the plaintiff has established the dependence is due to the transport accident.
100 Accordingly, I take into account that she is currently taking Panadeine Forte for her soft-tissue injury to the spine. I consider that this is a consequence that I can take into account. I accept that the medication the plaintiff takes for the transport accident is at the low end of the scale.
Treatment
101 Dr Stojkovski, the plaintiff’s general practitioner, said the plaintiff would benefit from physiotherapy/chiropractic treatment/pool/hydrotherapy. This was supported by Mr Steedman. I accept that the plaintiff consults her general practitioner monthly on average and in relation to her physical injury.
102 Associate Professor Goldwasser was aware that she had an elastic back support, an elastic knee support, and also thermal knee support. In addition, she uses a special chair which automatically helps her up, so she is lifted up. She reported that she still uses a walking stick, particularly when outside the house, for security, as she is fearful of falling. She reported performing daily exercises for her whole body, including her neck, back, arms and legs for about ten minutes each day. She has been doing exercises for six to eight months and finds them helpful. Associate Professor Goldwasser noted that the plaintiff was able to walk independently without the single-point stick. He made no further comments about future treatment.
103 Dr Chris Baker, specialist in occupational medicine, was asked to comment on the plaintiff’s medication. He was not confident the list was accurate or up-to-date, but said there was nothing particularly toxic. As he did not consider the plaintiff currently suffered a physical injury, he did not express a view on her future treatment.
104 Dr Peter Boys, consultant orthopaedic surgeon, said he could find no evidence of any significant musculoskeletal condition specific to the transport accident. Accordingly, he expressed no view as to her need for treatment.
105 Mr Michael Shannon, orthopaedic surgeon, said the plaintiff did not require any future orthopaedic treatment.
106 Based on the medical evidence, at best, the plaintiff requires physiotherapy/chiropractic treatment. However, I note no medical witness suggested a time limit for such treatment. I accept that the treatment the plaintiff currently has, and is likely to require in the future, is at the low end of the scale. All witnesses accepted that there was unlikely to be any deterioration in the plaintiff’s current condition.
Restrictions and limitations on activities of daily living
107 The plaintiff’s evidence was that, prior to the transport accident, she would go out socially, see friends, go to the gym and liked to power walk. In cross-examination, she agreed that it was many years since she had been to the gym or had power walked. Accordingly, I accept that these activities had ceased prior to the transport accident. The plaintiff’s evidence was that she now has difficulties in walking any distance. Because of the medical evidence, I do not accept that this is a consequence I need consider. None of the medical reports suggested that her walking was affected.
108 The plaintiff’s evidence is that she has great difficulty looking after herself or performing household duties and that her mother had to assist her before her mother suffered from cancer. She is also assisted by a carer, who is an ex-partner, with whom she lives. The plaintiff’s mother swore an affidavit. The plaintiff’s mother did not depose to assisting the plaintiff with housework but did say that she drove her, on occasions, to the doctor and the chiropractor. There was no evidence from the plaintiff’s carer as to the level of assistance he provides. The medical reports of Dr Stojkovski make no reference to the plaintiff requiring a carer. Dr Stojkovski was reviewing the plaintiff on a monthly basis up until August 2016. Dr Rainsford’s records were current to May 2016. While her records on occasions referred to Tony, the plaintiff’s partner, they did not refer to him as her carer. However, the current medico-legal reports refer to the plaintiff’s carer attending appointments with the plaintiff.
109 Mr Shannon said, accepting that the plaintiff does have some ongoing discomfort in her neck and back, she is likely to be limited in domestic activities of a heavy nature. He was also aware of her requirement for medication and by the subsequent development of epilepsy, which may limit her in her domestic activities.
110 The plaintiff reported to Associate Professor Goldwasser that her activities of daily living were affected, in that she was able to do light activities, namely, ironing and tidying, at bench height. She reported that her carer does the sweeping of floors and other heavy housework. She reported she was not active in the garden, yet, she reported to Mr Steedman that she is unable to do any gardening activities. Associate Professor Goldwasser accepted that she could not place heavy stress on her back, such as heavy lifting or repeated bending and stooping. She reported to Associate Professor Goldwasser that she no longer goes out as much socially and this has become more difficult because of the development of epileptic seizures, and she is unable to drive. She told Associate Professor Goldwasser that her domestic life has been affected, in that she cannot do the regular housework and cleaning and, for this reason she stays, most of the time, nearly all of the time, with her partner, who is her carer.
111 Dr Baker and Dr Boys did not comment on the plaintiff’s domestic work, because both considered there was no significant physical problem.
112 I accept that because of the state of the medical evidence in relation to the plaintiff’s domestic and social activities, that any limitation upon these activities would be limited to domestic activities of a heavy nature, which, given the lack of evidence, would be at the very low end of the scale. I accept that any restrictions imposed upon the plaintiff by her epilepsy and its effects upon her domestic and daily living activities are unrelated to the transport accident.
Work
113 The plaintiff’s evidence was that prior to the transport accident, she worked part-time. In her first affidavit, the plaintiff deposed to her employment history, which was, in large part, part time and was work that she would have been doing as a school student. There was no objective evidence to support the plaintiff’s work history. I concluded that, at best, her employment history was intermittent and part time and ceased in 2007.
114 The plaintiff’s evidence was, on the day following the transport accident, she planned to attend a job interview for traffic control. As a result of the transport accident, she was unable to obtain employment. The evidence was that, at the time of the transport accident, she was reporting to Dr Aufgang, still using drugs in April 2010 and on the day of the transport accident. The most recent evidence as to the plaintiff’s drug use is April 2016, when she reported to Dr Rainsford she had not used for ten days.[55]
[55]Dr Rainsford’s records end in June 2016
115 The medical evidence varied as to the plaintiff’s capacity for future employment. Mr Shannon said that, accepting her complaint that she has ongoing discomfort in her neck and back, work activities of a heavy nature would be limited. He thought she would not be ideally suited to work in aged care as there is significant bending and lifting involved. He noted that the plaintiff accepted that work in this area is unsuitable for her as she requires the assistance of a carer herself. He also said her work capacity was affected by her requirement for medication and her epilepsy, again unrelated to the transport accident.
116 Mr Steedman said he did not think she could work, but did not explain why.
117 Associate Professor Goldwasser said that her work capacity is limited and the most likely work she could do would be reception-type work where she could alter her position from time to time and not be required to do heavy or strenuous activity. He thought she could manage this on a part-time basis, or half time.
118 Dr Baker and Dr Boys did not express an opinion on work capacity, because they considered the plaintiff had not suffered a physical injury.
119 Given the state of the medical evidence and the plaintiff’s capacity for employment prior to the transport accident, I consider any incapacity for work that the plaintiff has suffered is at the low end of the range.
Sleep
120 The plaintiff told a number of the witnesses that her sleep is affected by her injuries. The evidence is that the plaintiff reported poor sleep to a number of the medical witnesses prior to the transport accident.
121 Accordingly, I am not satisfied that the plaintiff’s sleep has been affected by the physical injury and, accordingly, is not a consequence I take into account.
Limitations in sexual relations
122 The plaintiff’s evidence is that, as a result of the physical injury suffered in the transport accident, her ability to engage in sexual relations is limited by spinal pain. The medical records of Dr Rainsford record that the plaintiff consulted her in relation to a range of gynaecological and personal issues, including termination and birth control. There was no reference to complaints of limitations in sexual relations. In August 2016 she reported to Dr Doherty that with regard to functional limitations and reduced intolerances she has lost interest in sex and does not bother. She is too scared in any case. The plaintiff reported to Dr Kaplan in March 2015 low libido and that she has not been involved in a relationship “because I’m ashamed” and in April 2016 she had no libido and no interest in forming a relationship. Neither medical witness expressed an opinion in relation to this consequence, and whether it was as a result of the physical injury.
123 Accordingly, I do not consider this is a consequence I can take into account.
Heroin addiction post the transport accident
124 The plaintiff’s evidence is that, as a consequence of the transport accident, she continues to suffer ongoing, but variable levels of pain in her spine. In her lower back, the pain extends down through her right leg, and she suffers numbness in her right foot. She is never free of pain. The plaintiff’s evidence was that after the transport accident, she went on heroin, then she ceased. However, in 2015 and into early-2016, because of the severe pain, she started to take heroin again. She has now ceased heroin and is still on the Methadone treatment. The medical records confirm that the plaintiff was on heroin before and after the transport accident. There was no independent evidence to suggest that the physical injury pain caused by the transport accident resulted in the plaintiff’s addiction to heroin.
125 I do not accept that the pain from the physical injuries resulted in the plaintiff becoming addicted to heroin as there was no medical evidence to support this.
Ms Ann Camilleri’s affidavit
126 The plaintiff’s mother, Ms Camilleri, detailed some of the consequences that the plaintiff suffered as a result of the transport accident in her affidavit. This included the fact that the plaintiff now complains of pain and restriction of movement in her shoulders and neck and that her emotional state has worsened. Ms Camilleri said that, prior to the accident, the plaintiff was very active, going for walks, searching for employment and enjoyed hobbies in glass mosaic artwork.[56]
[56]PCB 20-22
127 Counsel for the defendant commented on how “remarkable it is for its lack of information”,[57] including detail on the plaintiff’s drug habit, difficulties at home, difficulties with her son and the fact that she was caring for the plaintiff’s son.
[57]T135-136
128 I am inclined to agree with counsel, in that Ms Camilleri’s affidavit does not assist me in my assessment of the consequences of the plaintiff’s injuries.
Conclusion
129 What was in issue was the consequences of the plaintiff’s physical injuries and whether they meet the test of seriousness, in that they could be considered “more than significant or marked”, and as being “at least very considerable” when compared with other cases in the range.
130 In considering whether the plaintiff’s impairment is “at least very considerable”, weight must be given to the adverb “very”. As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[58]
“… many disturbances are considerable, in the sense that they are important or substantial, without being very considerable.”
[58]Supra
131 Section 93 of the Act was intended to restrict the availability of common law damages to plaintiffs whose impairments were of “very considerable” magnitude.
132 In determining the application, it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgement.
133 Assuming the plaintiff continues to suffer a soft-tissue injury and taking into account all of the evidence outlined above, I find that the plaintiff has an increased level of pain in her spine and from which she requires Panadeine Forte and physiotherapy/chiropractic treatment. I accept that she may be limited in her domestic activities of a heavy nature. In relation to work, I accept that any consequence of the physical injury upon the plaintiff’s ability to work is at the low end of the range. This is because the state of the medical evidence and the plaintiff’s intermittent work capacity prior to the transport accident. I accept that the injury has had consequences to the plaintiff but I am not satisfied, when judged by a comparison with other cases in the range of possible impairments, that the injury can be fairly described as being “more than significant or marked” and as being “at least very considerable”. Accordingly, I dismiss the plaintiff’s application in respect of the physical injury, being the spine.
134 I will now consider the plaintiff’s mental, behavioural disturbance or disorder.
Mental or behavioural disturbance or disorder
(a) Pre-accident mental state
135 It was not in issue that, prior to the transport accident, the plaintiff had been treated for her mental state.
136 In 2007, the plaintiff was admitted to Werribee Mercy Hospital for a psychiatric admission as a result of a drug overdose. The plaintiff reported psychiatric problems occurring over four years of Psychosis, Panic Disorder, Depression, Anxiety, self-harm, drug abuse and back pain.
137 In May 2007, the evidence was that the plaintiff was admitted to the Emergency Department of the Werribee Mercy Hospital as drug affected on a background of poly-substance abuse, threatening the public with a baseball bat, stating that her boyfriend was after her. The plaintiff admitted to using marijuana, heroin and speed the day before.
138 In April 2008, the plaintiff was admitted to the Werribee Mercy Hospital with a laceration on her left forearm, and reported taking heroin that night.
139 Dr Aufgang, general practitioner to the plaintiff between 2005 and 2011, said the plaintiff had been treated for Borderline Personality Disorder, drug-induced Psychosis, underlying Thought Disorder, and Depression and that her deep psychological disorders were not assisted when she was involved in the transport accident of 3 May 2010.
140 Dr Irinyi, general practitioner, of Williamstown Medical Centre, said, in December 2010, that as a result of the transport accident, the plaintiff suffered emotional upset, needing sedatives and counselling by a psychologist, consistent with Post-Traumatic Stress Disorder. He was aware that she had predisposing factors; namely she was on a Methadone program; Anxiety/Depressive Disorder; emotional instability. Dr Irinyi retired in December 2010 and the plaintiff’s care was taken over by Dr Stojkovski. His notes refer to anxiety and panic attacks.
141 In June 2010, the evidence is that whilst the plaintiff was referred by Dr Irinyi to a psychologist, Malini Singh, Ms Singh reported that she treated the plaintiff for Depression and Anxiety on a background of chronic narcotic use. The plaintiff attended on three occasions. The evidence is that the plaintiff was referred to Dr Manog Kumar, psychiatrist, by Dr Stojkovski. Dr Kumar reported that he saw the plaintiff in 2011 in relation to her history of substance-induced psychosis, poly-substance abuse and benzodiazepine dependence. Neither practitioners referred to the transport accident in their reports.
142 The evidence is that the plaintiff is not receiving any psychiatric or psychological counselling.
143 I accept that, prior to the transport accident, the plaintiff was being treated for anxiety issues and Depression and was prescribed medication for those conditions. I also accept that at the time of the transport accident, the plaintiff was being treated for poly-substance abuse, as well as depression and anxiety issues.
(b) Current mental state
144 The current psychiatric medical evidence as to the plaintiff’s mental state was expressed by Dr Kaplan and Professor Doherty, psychiatrists, and Dr Walters, Dr Borg and Arbias, reports of neuropsychologists.
145 Dr Kaplan, psychiatrist, examined the plaintiff at the request of the plaintiff’s solicitors on three occasions. Dr Kaplan obtained a limited history of the plaintiff’s mental condition prior to the transport accident. He obtained an inaccurate history of the plaintiff’s drug dependency; namely that she used heroin intermittently between 1998 and 2008. She used the drug intravenously over a period of six months; however, on other occasions, she inhaled the drug. She had been on a Methadone program for some years. I accept that Dr Kaplan did not have a proper history of the plaintiff’s pre-accident condition. He did not obtain a history that the plaintiff was using drugs on a regular basis up to and at the time of the transport accident, nor did he have a proper history post-accident.
146 The plaintiff reported that her son stayed with her parents because of the injury she suffered in the transport accident. The evidence is that her son commenced living with her parents in 2006-2007 and continued to live with them post transport accident because of the plaintiff’s drug dependency. She reported nightmares which wake her most nights and where she dreams that she is involved in a car accident. The plaintiff has not reported this to her general practitioners. She did not report the level of her drug dependency at the time of the accident.
147 In March 2015, Dr Kaplan re-examined the plaintiff. The plaintiff reported that she suffered nightmares, which revolve around the themes of being in an abusive situation, being in an accident and about the driver of the car. She reported low libido. This was not reported to any of her general practitioners. She also reported that she had not used illicit drugs since she was last examined by Dr Kaplan. This is inconsistent with the general practitioner’s records.
148 In March 2015, Dr Kaplan said the plaintiff continues to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood relating to her chronic pain and the physical limitations imposed upon her by the pain. He went on to say that the plaintiff’s Post-Traumatic Stress Disorder symptoms have not improved since he last examined her.
149 Dr Kaplan re-examined the plaintiff in 2016. She reported that she is using heroin intravenously to relieve her pain, which is severe. On average, she uses heroin twice per week. She said she had not revealed this drug usage when she was last examined, because she felt ashamed. Dr Kaplan said the plaintiff’s Adjustment Disorder with Mixed Anxiety and Depressed Mood has not improved. Her Post-Traumatic Stress Disorder symptoms appear largely unchanged and she continues to suffer from a Panic Disorder associated with agoraphobia.
150 In August 2016, Professor Doherty examined the plaintiff at the request of the defendant. The plaintiff reported that prior to the transport accident, her mental health was “really good”. She reported, at the time of the accident, a narcotic substitution program and was prescribed Methadone (partly true, but not mentioned: heroin, speed or alcohol). She reported smoking about 0.5 grams of marijuana and usually has a couple of joints each night. She reported falling to sleep and being told she snores and screams in her sleep. She could not tell Professor Doherty what her nightmares were about. She wakes up crying.
151 Professor Doherty was forwarded the medical records of Dr Aufgang and Dr Rainsford. He said that the remarkable feature of the plaintiff’s psychiatric history is the long history of poly-substance drug abuse which predated the transport accident. It was his opinion that there had been an abuse of, and dependence on, prescribed medication including narcotics and benzodiazepine medication. There had also been abuse and dependence on illegal substances including amphetamines and heroin, and that there has been an ongoing program or narcotic substitution using Methadone. He said the plaintiff meets the criteria of Substance Use Disorders. He said, from a psychiatric point of view, there had been a longstanding difficulty in interpersonal relationships. She presented as a highly histrionic person.
152 Professor Doherty said that prior to the transport accident, the plaintiff had significant psychological and personality vulnerabilities and she may well meet the criteria for a Personality Disorder, marked by borderline and histrionic traits. He said, following the transport accident, there was no significant psychological or psychiatric sequelae. She complained of pain at one point in time and mentioned nightmares, flashbacks and avoidance, suggestive of features of traumatisation. He said such features are no longer present. He said there was no diagnosable psychiatric condition present in the plaintiff apart from pre-existing substance use disorders and the pre-existing disorder of personality. He said there was no psychiatric condition directly caused, aggravated or attributed to by the transport accident.
153 Professor Doherty concluded as follows:
(i) The plaintiff has a pre-existing and unrelated psychiatric condition of Substance Use Disorder and a Personality Disorder. The Personality Disorder is marked by histrionic and borderline features;
(ii) He agreed with the comments of Dr Baker and Dr Boys that there are significant psychological and non-organic aspects to the plaintiff’s presentation. In his opinion, they are picking up the plaintiff’s histrionic, superficial and exuberant presentation of symptoms. She tends to focus attention on herself and her presentation of physical symptoms. That is a personality trait that was present prior to the transport accident and continues after it.
154 In April 2016, Dr Isabella Walters, neuropsychologist, assessed the plaintiff at the request of the plaintiff’s solicitor. It was her opinion the plaintiff suffered a mild head injury in the transport accident. After conducting tests, it was her opinion that the impact of the accident was mainly psychiatric, with no appreciable evidence of organic cognitive impairment. She said the plaintiff’s complaints of low memory functioning and problems with concentration are likely due to her significant Anxiety, Depression and stress, and to symptoms of Post-Traumatic Stress Disorder. As far as the plaintiff’s capacity for work is concerned, she said it is limited by factors such as her psychiatric functioning, back pain and substance abuse.
155 Dr Walters considered a report of Ms Rhiannon Nicholls, ABICISP case manager, dated 11 December 2012. Ms Nicholls stated that the plaintiff suffered from cognitive impairment due to the accident and that this was severe and impacted significantly on her daily life. Dr Walters said that the cognitive difficulty scale consists only of self-report items and does not include any cognitive testing. She said it was a good measure of subjective complaints but is not an objective measure of cognitive performance.
156 In April 2016, Ms Elaine Chong, psychologist, and Dr Melissa Slayo, neuropsychologist, conducted a neuropsychological assessment at the request of the plaintiff’s general practitioner to clarify the plaintiff’s level of cognitive functioning and ascertain the presence of an ABI. The assessment concluded that her current neuropsychological profile is not consistent with an ABI as a result of the transport accident, and unlikely to be a result of hypoxic brain injury related to her previous overdoses. It was stated that while her current cognitive profile is not consistent with a substance related brain injury; she has a long-standing history of poly-substance abuse, which places her at a very high risk of developing an ABI if she re-commences previous patterns of substance abuse.
157 In July 2016, the plaintiff was examined by Dr Linda Borg, neuropsychologist, at the request of the plaintiff’s solicitor. Dr Borg said the plaintiff underwent neuropsychological assessment in 2013 which revealed the inefficiency in high order attention and aspects of the executive functioning which at the time was deemed consistent with her degree of psychiatric disturbance as well as her medication regime which included analgesics, benzodiazepines and Methadone. Dr Borg said the plaintiff’s cognitive profile does not indicate an ABI but rather, cognitive inefficiency secondary to ongoing psychiatric factors including mood disturbance and Cluster B personality traits. While these appear to pre-date her accident in 2010, it is possible that the accident has led to exacerbation of her underlying psychological distress. She noted that the plaintiff’s psychiatric and drug use have all predated her accident in 2010. She said the plaintiff does not demonstrate a medical condition which has been materially contributed to by the accident.
158 I rely upon the report of Professor Doherty for several reasons:
· First, he was provided with the clinical notes of Meadows Medical Centre which predate the transport accident, the Saltwater Clinic, Werribee Mercy Hospital, the chiropractor and Jocelyn Clinic.
· Second, he was provided with reports of treaters, Dr Malini Singh, Dr Manoj Kumar, Ms Melissa Viojo, Dr Michael Aufgang and Ms Elaine Mei San Chong.
· Third, he also had access to the MRI scan of the cervical spine and the thoracic and lumbar spines, which is particularly important given the inaccurate histories that were provided by the plaintiff to Dr Kaplan.
159 Based on Professor Doherty’s opinion, I accept there is no accident-related psychiatric condition present. I am also influenced by the reports of Dr Borg and Dr Walters, neuropsychologists, who concluded that the plaintiff does not demonstrate a medical condition which has been materially contributed to by the transport accident.
160 Accordingly, I dismiss the plaintiff’s application in respect to the mental or behavioural disturbance or disorder.
161 As I have rejected the plaintiff’s application in respect to the physical injury and the mental or behavioural disturbance or disorder, I will dismiss the application.
162 I will hear the parties on costs.
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