Campbell v Transport Accident Commission
[2016] VCC 934
•12 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-00345
| JANE ELIZABETH CAMPBELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 March 2016 | |
DATE OF JUDGMENT: | 12 July 2016 | |
CASE MAY BE CITED AS: | Campbell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 934 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – credit – soft-tissue injuries which led to development of mental disturbance and disorder.
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Campbell v Transport Accident Commission [2014] VCC 1390; Transport Accident Commission v Campbell [2015] VSCA 7; Mobilio v Balliotis [1998] 3 VR 833; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Woolworths Ltd v Warfe [2013] VSCA 22; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages in relation the transport accident on 30 May 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J Purcell with Mr M Fogarty | Slater & Gordon |
| For the Defendant | Mr P Y Rattray QC with Mr P J Gates | Solicitor for the Transport Accident Commission |
HER HONOUR:
Historical background
1 This is a rehearing of 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 the plaintiff arising out of a transport accident which occurred on 30 May 2009 (“the transport accident”).
2 This proceeding was heard by a County Court judge in September 2013. On 28 August 2014, his Honour gave judgment[1] for the plaintiff and ordered that leave be granted to the plaintiff to bring a proceeding at common law for damages in respect of the injuries that she suffered in the accident pursuant to s93 of the Act. The defendant appealed his Honour’s decision. On 12 February 2015, the Court of Appeal delivered its reasons[2] and allowed the appeal, remitting the matter for a re-hearing by a different County Court judge.
[1]Campbell v Transport Accident Commission [2014] VCC 1390
[2]Transport Accident Commission v Campbell [2015] VSCA 7
3 To avoid wasting time and money by calling witnesses to give evidence again, it was agreed between the parties that I should rely upon the evidence given in the first trial and that the plaintiff would be cross-examined about matters that have arisen since the previous trial. In fact, cross-examination of the plaintiff was not limited to matters that have arisen since the new trial. No objection was taken by counsel for the plaintiff. As such, I have considered the plaintiff’s evidence in the previous trial and the trial before me.
The law
4 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.”
5 The plaintiff brings this application pursuant to paragraph (c) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury means—
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
6 The plaintiff relies upon a severe long-term mental or severe long-term behavioural disturbance or disorder in the nature of a Post-Traumatic Stress Disorder (“PTSD”) and a depressive condition.
7 The plaintiff seeks leave to issue proceedings at common law.
8 The plaintiff relied upon four affidavits sworn 4 August 2011, 18 December 2012, 6 September 2013 and 5 February 2016. Additionally, the plaintiff relied upon the following affidavits of:
· Mr Clayton Deegan, the plaintiff’s team supervisor at Shell Company of Australia Ltd (“Shell”), sworn 30 August 2012;
· Ms Carmel Arklay, the plaintiff’s mother, sworn 20 January 2012;
· Ms Sarah Hutton, the plaintiff’s friend, sworn 28 February 2012; and
· Ms Stephanie Jones, the plaintiff’s supervisor at DBM Consultants Pty Ltd (“DBM”), sworn 20 February 2016.
9 In addition, both parties relied on medical reports and other material which was tendered in evidence, including the transcript of the previous County Court hearing, pages 29 to 242.[3] I have read all of the tendered material.
[3]For convenience, I will refer to transcript references in the previous trial as “old trial” transcript or “OT”.
The issues
10 Counsel for the defendant informed the Court that the credibility of the plaintiff was a “full-frontal” issue[4] and it emerged as the focus of counsel’s cross-examination of the plaintiff. In particular, counsel asserted that the issue of credit was critical in relation to:
·First, the reliability of medical opinions tendered, given that these opinions were based on inaccurate histories given by the plaintiff. As the plaintiff did not disclose her full employment history to the medical witnesses, Counsel questioned the accuracy and diagnoses that the various doctors ascribed to the plaintiff;[5] and
·Second, whether the consequences of any long-term mental disturbance or disorder suffered by the plaintiff meets the “severe” test.[6] In particular, counsel tendered surveillance material that sought to undermine the plaintiff’s evidence of her injuries.
[4]Transcript (“T”) 13 Lines (“L”) 23
[5]T97, L5-7
[6]T2, L23-27
11 As a result, counsel submitted that the plaintiff was not suffering from a permanent severe mental or permanent severe behavioural disturbance or disorder as a result of the transport accident.
Surveillance
12 The plaintiff was under surveillance for 36 days for a total of 154.5 hours between 29 October 2012 and 19 November 2015. The duration of the film obtained and shown totalled 69 minutes and 9 seconds. As agreed between the parties, the dates of the surveillance film played to the Court were as follows:
· the morning and afternoon of 29 October 2012
· 30 and 31 October 2012
· 2 and 3 November 2012
· 10, 14, 15 and 17 December 2012
· 12 and 14 January 2013
· 24 June 2013
· 2, 15 and 17 July 2013
· 26, 28 and 31 August 2013; and
· 6 August 2015.
13 In cross-examination, the plaintiff was shown the abovementioned surveillance and counsel for the defendant questioned her on its contents. I have summarised the surveillance material and the plaintiff’s evidence below.
29 October 2012
14 In this film, the plaintiff is seen leaving work at Shell, walking with bags in both of her hands towards her car. She bends over on the driver’s side of the car and opens the boot of the car. Then, she gets into the driver’s seat and lifts one of the bags over and across her body in order to place it on the passenger seat next to her. She leans forward and twists her back to put her seatbelt on. The surveillance records that the plaintiff leaves Shell at 5.00pm. In cross-examination, the plaintiff agreed that the film showed her leave Shell to drive to DBM.
15 Counsel for the defendant put to the plaintiff that the film showed a lady moving in an unrestricted manner. The plaintiff conceded that counsel was correct and acknowledged it did not show a lady in outward pain.[7] However, the plaintiff qualified her answer and said:
“… just because I’m walking like that doesn’t mean I’m not in pain. You see me and you don’t see me in pain but it doesn’t mean I’m not in pain.”[8]
[7]T35, L14
[8]T35 L4-7
16 This qualification was a common theme throughout the plaintiff’s cross-examination. The plaintiff agreed with counsel that her restrictions are 24/7 constant.[9] The plaintiff said that at 8.00am, she is not relatively fresh because she does not sleep for the whole night. She tosses and turns every night in pain.[10] The plaintiff told the Court that if she had been filmed at night, then it would show a “different story”.[11]
[9]T36, L6
[10]T37, 23-29
[11]T38 L2-3
17 In fact, further surveillance recorded the plaintiff on the same day, but later in the evening. The film showed the plaintiff leave Shell at 5.00pm in her car. She agreed with counsel for the defendant that the film did not show the “slightest exhibition of restricted movement or pain”.[12] The plaintiff agreed that the film, in the morning, showed a person moving normally and showing no outward sign of pain, and a lady, that same evening, moving normally and showing no outward sign of pain.[13] She also conceded that the film showed her doing all the things she says she cannot do.[14]
[12]T38, L22-28
[13]T39 L3
[14]T39,11-12
31 October 2012
18 Film was shown in Court but counsel for the defendant chose not to cross-examine the plaintiff on it.
2 November 2012
19 In this film, the plaintiff walks to her car with a bag in her hand and a handbag on her other shoulder. She lifts the car boot and places the bags into the boot. She lifts a handbag over her head with ease. She drives away in her car and disappears from view.
20 Counsel for the defendant put again to the plaintiff that the film did not show a lady in any sort of difficulty or with any restriction, to which she agreed.[15] However, the plaintiff again re-asserted that she was in some form of pain every day, which increases throughout the day.[16]
[15]T40, L16-17
[16]T40, L20-3
3 November 2012
21 In this film, the plaintiff is shown getting out of the car with a bag in one hand and coat or handbag in the other hand. She lifts the car boot to retrieve another bag, closes the car boot and walks away from the car. She is filmed walking down a pathway with several bags, then walking down a busy street, arms swinging by her sides. She raises an arm, which appears to be in an attempt to brush her hair away from her face. She converses with someone by parked cars and then walks back down a pathway.
22 In cross-examination, the plaintiff agreed that the surveillance was filmed on a Saturday where she worked from 10.00am to 2.30pm at DBM, her second job.[17] The film showed her on an afternoon break in her shift and then return to DBM. The plaintiff agreed that her Saturday shifts at DBM were five hours in duration.[18]
[17]T41 L8
[18]T41, L15-16
10 December 2012
23 The plaintiff’s evidence is that she is seen to leave Shell in the evening at about 5.17pm after a full day’s work.[19] In the film, the plaintiff is shown to place items into the boot of her car by bending over and leaning forward. There does not appear to be any outward sign of pain or restricted movements from the plaintiff. She leaves in her car to drive to DBM at about 5.29pm. She is carrying a number of items in her left hand. She seems to move freely.
[19]T47
24 The surveillance records the plaintiff driving away at 9.00pm in her car. The plaintiff told the Court that this film showed her leaving after a shift at DBM.[20] Although the surveillance is dark, as it was filmed in the evening, the plaintiff is seen to raise her hand to her lower back for a brief moment.
[20]T48
25 In cross-examination, counsel for the defendant again suggested to the plaintiff that the film did not show her to be in any restriction when she left Shell or arrived at DBM. The plaintiff agreed.[21] She said that when she worked at Shell from 9.00am to 5.00pm and then went to DBM, she worked a twelve-hour day.[22]
[21]T48 L18-27
[22]T51, L19-22
26 However, in cross-examination, the plaintiff volunteered to the Court that the film showed her hand rubbing her back, which was due to restriction and pain.[23] Counsel for the defendant asked the plaintiff to identify where in the surveillance she was rubbing her back. Counsel suggested it was a mere scratch or touch of the back and nothing more.[24] In my view, although the film was dark, the surveillance showed the plaintiff touch her back for a brief moment.
[23]T48 L29-31
[24]T50
27 I note that the plaintiff even suggested the videos were edited by the Transport Accident Commission;[25] however, counsel for the plaintiff did not make this submission.
[25]T50, L26-7 and 31
14 December 2012
28 In the film, the plaintiff is shown to leave Shell at 6.12pm and drive to a bar, where she stays for two hours. The plaintiff gave evidence that she attended Beer DeLuxe for Shell’s Christmas party. She agreed with counsel for the defendant that the film showed no signs of any restriction in her movements, either before she went to Beer DeLuxe or when she came out, and notwithstanding, it was after a full day of work at Shell.[26]
[26]T49, L12-15
12 January 2013
29 In this film, recorded at about midday, the plaintiff is shown at her house talking with a man who she identifies as her brother-in-law.[27] Her brother-in-law appears to be carrying a large, white box while the plaintiff is shown to bend over to pick up a large bag of items using her left hand. The plaintiff walks with the bag just in her left hand, then swings the bag into her right hand in order to open up the passenger car door.
[27]T52 L22
30 The plaintiff is seen to give a firm embrace to a woman who she identifies as her sister.[28] The film shows her sister use her arm to lean around the plaintiff and touch the plaintiff’s upper back and shoulders. The film does not appear to show the plaintiff in pain from being touched by her sister. Once her sister is in the car, the plaintiff raises her left arm upwards, pointing in a different direction. The plaintiff walks away and starts to rub her lower back. The plaintiff is then shown getting in and out of her car.
[28]T53 L5
31 In cross-examination, after being asked several times by counsel, the plaintiff finally agreed that she carried rubbish out of the house and placed it into the bin. The plaintiff gave evidence that the large bag of items she picked up contained plastic bags. Counsel for the defendant raised the fact that the plaintiff’s sister put her arms around the plaintiff’s shoulders and neck without her flinching. The plaintiff disagreed. She told the Court that she did flinch and it was impossible to see otherwise in the film.[29]
[29]T55
14 January 2013
32 In the film, recorded at 5.54pm, the plaintiff is shown in a supermarket, later identified by the plaintiff as the Coles supermarket located in Balwyn.[30] She is seen holding milk in her left hand and her handbag over her right shoulder. She then selects vegetables to put in a plastic bag.
[30]T55, L27-29
33 Counsel for the defendant put to the plaintiff that her back and neck movements were good in the film, to which she agreed.[31] She said the second part of the film showed her leaving Shell at 5.30pm.[32] She told counsel for the defendant that she had to buy food to live and eat.[33]
[31]T56, L1-2
[32]T56, L5-7
[33]T56, L13-14
24 June 2013
34 In the film, recorded at around 10.35am, the plaintiff is seen getting into, and reversing her car. She gets out of her car, walks over, bends down and leaves something, then gets back into the car and drives away. The plaintiff is shown getting out of her car and using her left arm to swing the car door shut. She then looks up and walks past several cars. She turns around to walk back to her car. She bends her right arm behind her lower back, which appears to be in order to touch her back.
35 Counsel for the defendant contended that the plaintiff was merely scratching her back.[34] Again, the plaintiff insisted that she was rubbing her back in pain instead. In my view, it is unclear what she was doing in the surveillance.
[34]T59 L3
36 In the same film, the plaintiff is shown getting out of her car again. She carries her handbag with her. She walks around her car to a building before fully tilting her head upwards to the sky and then turning her neck to one side, which appears to be in order to read a parking sign. In cross-examination, the plaintiff agreed she had good neck movements in the film and got into her car freely but that she did not look happy.[35]
[35]T58, L24-6
15 and 17 July 2013
37 In the film, whilst it is dark, it appears to show the plaintiff getting into her car at DBM at 8.30pm.
38 In cross-examination, the plaintiff again conceded that the film showed no restriction in her movement and she was able to get into her car freely.[36]
[36]T57, L20-23
31 August 2013
39 Counsel for the defendant asked the plaintiff whether there was an occasion when she thought she was being followed. The plaintiff agreed that when she believed she was being followed she reported it to her instructing solicitor, who told her it was likely that she was being filmed for the purposes of this proceeding.[37]
[37]T60, L3-8
40 Subsequently, the Court was played the film of 31 August 2013. The plaintiff is seen rubbing her back several times with both hands and using exaggerated movements. The plaintiff agreed that she thought she was being followed on this day in the film.[38] She gave evidence that she had been to Chemist Warehouse and then drove her car to the supermarket. While watching the video, counsel commented that the plaintiff was seen to “feverishly” move her neck to nod her head when she saw herself rub her back in the film.[39] In reply, the plaintiff said it did not mean that she was not in pain.[40] The plaintiff said that after she completed her shopping in this film, she had an anxiety attack and rushed out of the store to drive her car home.[41] However, there was no further film tendered to confirm the plaintiff’s assertion.
[38]T61, L8-15
[39]T61, L31 – T62, L5
[40]T62 L12-5
[41]T62, L11-21
6 August 2015
41 The defendant tendered three discs of surveillance recorded on 6 August 2015.
42 In the first film, the plaintiff was shown walking down a street carrying something in her hands.
43 In the second film, the plaintiff is seen leaving a building carrying items in her right hand with a handbag over her shoulder. She is seen in a store and then walking down the street carrying a shopping bag with the handbag over her shoulder. She is seen crossing an intersection and then enters a fish and chip store. She is seated at a table, lifting her neck to see a television mounted on the wall above her head height. She is shown crossing the same intersection with a bag in her hand and handbag over her shoulder. She waits for the pedestrian crosswalk. The plaintiff is shown bending forward to put things into to the boot of her car and then drives away. She is seen getting out of the car with a large bag in her left hand and a handbag over her shoulder.
44 In the third film, the plaintiff is seen using one hand to close her car boot. She walks along the street with a bag in her hand and a handbag over her right shoulder. She uses large circular motions with her arms to wrap a scarf around her neck without apparent difficulty in her movements.
45 In cross-examination, the plaintiff agreed that the three films depicted her moving freely and in an unrestricted manner.[42] She agreed with counsel that the film showed that there was no restriction in her spine or difficulty in her walking, sitting or standing.[43]
[42]T69 L21
[43]T69 L22-26
46 Towards the end of cross-examination, counsel for the defendant asked the plaintiff whether, apart from the times where she claimed to be rubbing her back because she was in pain, the films throughout the entire period from 2012 to 2015 showed a lady moving in an unrestricted manner.[44] Initially, the plaintiff said it depended on how much the films had been edited by the Transport Accident Commission. Finally, after counsel pressed her for an answer, the plaintiff agreed that the films showed a lady moving in an unrestricted manner apart from the time she rubbed her back.[45]
[44]T70 L2-6
[45]T70, L2-12
Medical witnesses – surveillance
47 Some of the medical witnesses who gave evidence in the first hearing viewed the surveillance either before or during cross-examination and were asked to comment on its contents. Some of the medical witnesses have viewed more recent surveillance. I will summarise their opinions below.
48 At the first hearing, Dr Chan, general practitioner, viewed the surveillance dated 10, 14, 15 and 17 December 2012. In cross-examination, he agreed with counsel for the defendant that the plaintiff was moving freely without any restriction of her neck. Dr Chan accepted that, in general, that was how she presented to him.[46] He told the Court that he was reliant upon what the plaintiff had told him in her visits to him.[47]
[46]OT 70, L11-14
[47]OT 70 L29
49 Prior to the first hearing, Dr Serry, psychiatrist, was provided with five discs of surveillance material dated from October 2012 through to January 2013 as well as the plaintiff’s affidavit. Counsel for the plaintiff tendered Dr Serry’s report dated 29 January 2013, where he addressed the plaintiff’s behaviour on the surveillance.[48] Dr Serry’s view was that the plaintiff appeared “by and large” to move in a relatively unrestricted fashion. He did not think her walking was significantly compromised. He noted that, on occasions, the plaintiff was carrying bags and bent forward into the boot of a car but she was not involved in any activities that he would consider to be heavy duties. He also noted that she appeared to be driving a car in the film in an unrestricted fashion.
[48]Plaintiff’s Amended Court Book PACB 214-215
50 In his report, Dr Serry opined that the surveillance material revealed the plaintiff to be undertaking activities which were not inconsistent with anything that she described to him at her most recent presentation. He reiterated this opinion in cross-examination at the first hearing.[49] Counsel for the defendant took issue with Dr Serry’s opinion on this issue and queried whether the film helped him one way or the other in his position as a psychiatrist.[50] In response, Dr Serry explained that:
“It’s very difficult to get surveillance material which will, in a sufficiently convincing way, change one’s opinion about the presence or absence of complaint about pain.”[51]
[49]OT168, L19-21
[50]OT169, L10-11
[51]OT169, L22-5
51 Further, Dr Serry said that there are many variables that are involved in the assessment of surveillance material and that he is careful and conservative about coming to any conclusions. He explained, in cross-examination, as follows:
“There’s a very big aspect that’s missing from surveillance material, and that is, how did the individual fee on that particular day? How did they feel at that time on that day? Were the tasks that were being undertaken essential tasks that were being undertaken even with the presence of pain? So there are so many variables that are involved in the assessment material that I am very careful and conservative about coming to any conclusions. So the most that I will say – it would have to be extraordinarily at odds with what I had seen in my rooms for me to make a definitive comment that it was at odds, which is why I carefully choose my words and say; ‘not inconsistent with’.”[52]
[52]OT170, L17-21
52 In addition, Dr Serry agreed with Dr Walton’s view that “at this stage the physical injury has relatively little relevance”. Dr Serry was asked a question by counsel for the defendant:
Q:“And if the subjective complaint is a restriction of movement and that’s disproved, then you look at the subjective complaint as to pain with some doubt. Or you look at it carefully anyway?---
A:No, I don’t – I disagree with you because you’re actually talking about the issue of restriction of movement when there is an understandable underlying organic cause which is producing a restriction of movement that that is found to be at odds with the physical examination. Then that’s a matter of considerable significance. In a pain disorder there is a subjective experience of pain which could be no different than excruciating pain that is organically mediated. There is also the subjective experience of physical limitations of weakness, of impaired concentration, of trouble coping with a day-to-day basis. These are subjective things which go to the very heart of the diagnosis of a pain disorder.”[53]
[53]OT177, L12-28
53 Dr Serry expanded on this further where he said:
“The sense of restriction of movement is just as subjective as the experience of pain. So that goes to the core of the diagnosis of a pain disorder.”[54]
[54]OT178, L11-14
54 Ultimately, in regards to the surveillance material, Dr Serry told the Court that, “I’m telling you here and now it doesn’t help one way or another”.[55]
[55]OT170, L22-23
55 I note that Dr Serry, in his report, described the plaintiff as “a circumstantial and discursive historian”.[56]
[56]PCB 220
56 Prior to the first hearing, Dr Naomi Elliot, treating psychiatrist, was provided with the surveillance material of the plaintiff. In Dr Elliot’s report dated 1 February 2013, she stated that the “surveillance provided neither proves nor disproves that Jane Campbell suffers from chronic pain”.[57] Further, she commented that patients who undergo the pain management program at the North Eastern Rehabilitation Centre, like the plaintiff, were instructed to perform “as many ordinary tasks of daily life as possible, and are particularly encouraged to exercise and socialise with others”.[58]
[57]PACB 114
[58]PACB 114
57 In the first hearing, counsel for the defendant cross-examined Dr Elliot on her opinions contained in her report. Dr Elliot agreed with counsel and said that, for the short period of time that the plaintiff was viewed on surveillance, she moved in an unrestricted manner.[59] However, she said the film showed the plaintiff moving slowly and in what she interpreted as needing a rest at one point. In cross-examination, she was asked whether the surveillance was consistent with what she had seen in the clinical setting. She responded that:
“I guess her having a rest in the supermarket; that would be what I would expect. Other than that, no.”[60]
[59]OT202 L27-29
[60]OT204, L2-6
58 However, in re-examination, Dr Elliot said that the plaintiff:
“… presented as a proud person who was always very independent and single, so her regular role would be shopping for herself, and I think she would have experience it as humiliating to ask for help, so I don’t think she saw she had options or saw that she had options.”[61]
[61]OT204, L26-30
59 Prior to the second hearing, Mr Guy Coffey, treating clinical psychologist, was provided with the surveillance reports and seven surveillance discs from the defendant. He noted that two of the seven DVDs which were provided to him could not be played on his devices and therefore he could not review them. He made no specific mention of the surveillance in his report dated 8 February 2016.[62] In my view, this is not surprising, given his evidence in cross-examination at the first hearing, which was as follows
Q:“… If you saw film of her moving in an unrestricted and free manner, that would cast doubt on the history that you took or the history that you were given, wouldn’t it?---
A:Look, I’m a psychologist. I’m not qualified to observe a person’s physical movements and make inferences about what medical implications that has, whether the condition that’s been diagnosed is inconsistent with that. My job has been to focus on her psychological state and how that affects her chronic pain condition.... .”[63]
[62]PACB 100-102
[63]OT226, L19-28
60 The defendant’s medical witnesses who expressed a view as to the surveillance were Dr Walton, psychiatrist, Mr Simm, orthopaedic surgeon and Dr Fraser, rheumatologist. I will now summarise their views.
61 Dr Lester Walton, psychiatrist, examined the plaintiff at the request of the defendant. In January 2016, he was asked to review eleven discs containing surveillance of the plaintiff and provided a subsequent report dated 16 February 2016.[64] In particular, Dr Walton was asked to consider whether, in his opinion, the surveillance suggested the plaintiff was in pain or not. Dr Walton said that he was inclined to concur with other observers, which was that that the surveillance material did not confirm the plaintiff was significantly restricted by pain. Nonetheless, he said that the material also did not exclude the proposition that she may be suffering from pain.[65] He said the fact that there was no readily observable restrictions upon movement and the like and that she continues to apply herself to driving, shopping and other activities, indicates that she cannot be suffering from severe disabling pain but he noted that is not what she asserts, for example, she continues to work.
[64]DCB 61-70
[65]DCB 64
62 Dr Walton described the contrast between the plaintiff on the surveillance and her medical examinations as follows:
“There certainly does seem to be a contrast between the behaviour which Ms Campbell demonstrates to her treating doctors and other examiners compared with that captured on the video and that is a source of some concern, raising the proposition that there may be wilful exaggeration of disability. While it might be anticipated that there will be at least some fluctuation in the severity of pain and associated psychiatric symptoms, which may be reflected in some variation of activities, by and large a genuinely painful condition, whether organically based, psychological, or a combination of the two, ought to be fairly consistently displayed across all contexts.”[66]
[66]DCB67
63 Whilst Dr Walton noted it was most unusual for a person who was engaged in malingering to persist in any type of work, he said it was also well recognised that wilful and conscious exaggeration may coexist with genuine psychopathology.
64 In regards to the plaintiff being an accurate historian, Dr Walton opined that the inconsistencies between her behaviour in the surveillance and upon examination does “raise a doubt” as to how accurate she is as an information provider, both about her pain and difficulties, and to the extent that the diagnostic conclusions rest upon that information, then over those conclusions too.[67] Consequently, Dr Walton stated that, in trying to determine the plaintiff’s behaviour, he would place greater reliance on the information which has been obtained discreetly without her knowledge, compared with situations where she is aware that she is being observed, in particular, medical examination. However, the situation was far from simply black and white.[68]
[67]DCB 67
[68]DCB 68
65 Mr Simm, orthopaedic surgeon, examined the plaintiff on one occasion in October 2012 and formed the view that her condition seemed to be “largely, if not entirely, due to psychological or psychiatric factors” and that she had some form of Chronic Pain Disorder or Chronic Pain Syndrome.
66 In January 2012, Mr Simm viewed surveillance dated 10, 14, 15 and 17 December 2012 and provided a report dated 23 January 2012 to address the material.[69] Mr Simm formed the view that the plaintiff displayed normal pain-free movement of the neck and back despite not moving her back, head or neck to extremes. He found there was no hesitation when moving the neck and no indication that movements were associated with pain. Further, Mr Simm considered that the plaintiff as shown on the film moved differently from the plaintiff when he examined her in October 2012. At that time, he said that she displayed frequent overt signs of pain when demonstrating only moderate movements of the cervical spine, which included facial grimacing and puffing, which was not evident on the surveillance.[70] Consequently, Mr Simm came to the conclusion that there was a distinct possibility the plaintiff was exaggerating the degree of disability when formally medically examined. However, he acknowledged that the plaintiff did not undertake any heaving lifting, move to extremes or undertake any strenuous physical activities on the surveillance that were incompatible with the history provided by the plaintiff to him.[71]
[69]DCB 53-54
[70]Defendants Court Book (“DCB”) 53
[71]DCB 54
67 Dr Kevin Fraser, rheumatologist, examined the plaintiff on two occasions in August 2012 and again in February 2016. He viewed the surveillance film dated 10, 14, 15 and 17 December 2012 and provided a subsequent report dated 25 January 2013.[72] Upon review, he found that the plaintiff displayed no restrictions of neck, back or arm movements and was able to get in and out of the car without apparent difficulty. The apparent normal range of neck and back movements without apparent discomfort was at variance to his findings on formal examination, as detailed in his report of 16 August 2012. In light of reviewing the surveillance evidence, Dr Fraser suggested that there was voluntary overreaction by the plaintiff on physical examination. As a result, he no longer considered a psychologically-based Chronic Pain Syndrome was responsible for her symptoms and signs and considered that the plaintiff was consciously exaggerating both.[73]
[72]DCB 55-56
[73]DCB 55
68 In February 2016, Dr Fraser examined the plaintiff and described her as physically and emotionally distraught. He was subsequently provided with surveillance dated 6 and 14 August 2015. He said the surveillance showed the plaintiff as moving quite briskly and with an apparently normal demeanour.[74] He stated that the surveillance reinforced the views he expressed in his previous report, which was that the plaintiff was consciously exaggerating her symptoms and signs. He said that, from a physical point of view, he did not consider there were any ongoing transport accident injuries. Due to the difference between the presentation at medical examinations and that exhibited in day-to-day activities, Dr Fraser questioned the suggestion that she has a Chronic Pain Syndrome secondary to “central sensitisation”.
[74]DCB 57-60
Conclusion
69 Based on the medical evidence before me, I accept that the surveillance material tendered by the defendant showed the plaintiff moving freely in a relatively unrestricted manner. The plaintiff agreed with this proposition in her cross-examination, and all of the medical witnesses who were questioned on this aspect formed the same view.
70 In summary, the physical doctors, Mr Simm and Dr Fraser, expressed their views as follows.
· Mr Simm examined the plaintiff on one occasion in October 2012 and found that the overt pain signs such as facial grimacing and puffing, which she exhibited at examination, was not evident on the surveillance he reviewed. He noted the plaintiff did not undertake activities which were incompatible with the history she provided to him. As the report of Mr Simm is not current, he did not review the more recent surveillance and is an orthopaedic surgeon (that is, not a psychologist or psychiatrist), I place less reliance on his views than the other treaters.
· Dr Fraser, after reviewing the surveillance, said he no longer considered a psychologically-based Chronic Pain Syndrome was responsible for the plaintiff’s symptoms and signs as she moved quite briskly with an apparent normal demeanour in the film. Dr Fraser concluded the plaintiff was consciously exaggerating her symptoms and signs.
71 I note that Mr Simm examined the plaintiff on one occasion and Dr Fraser on two occasions.
72 However, the psychiatrists and psychologists generally expressed a different view of the surveillance compared to the physical doctors.
· Dr Walton said that it was well recognised that wilful and conscious exaggeration may coexist with genuine psychopathology. He was more concerned by inconsistencies between the plaintiff’s behaviour captured on film and what the plaintiff routinely demonstrated to medical witnesses when examined. Dr Walton concluded his report by stating the plaintiff’s situation was far from clear.
· Dr Serry said he was careful and conservative about coming to any conclusions based on surveillance material and ultimately concluded that it did not help him to form an opinion of the plaintiff either way.
· Dr Elliot formed the view that the surveillance neither proved nor disproved that the plaintiff suffers from chronic pain. She noted that the plaintiff, through the pain management program, was encouraged to perform ordinary tasks of daily living. She noted that that there was nothing in her consultations that would indicate the plaintiff was being calculating or deceptive.
· Mr Coffey said, as a psychologist, he was not qualified to observe patients’ physical movements and make inferences regarding the plaintiff’s medical implications.
73 Given the plaintiff’s claim is for a severe long-term mental or behavioural disturbance or disorder, I give more weight to the views expressed by the psychiatrists and psychologists than those of the physical doctors. Further, I am more influenced by those medical witnesses who examined the plaintiff on a number of occasions.
74 On the basis of the psychiatrist and psychologists’ opinions, that is that the surveillance did not undermine the plaintiff’s evidence, I conclude that the surveillance does not, of itself, destroy the plaintiff’s credibility and it does not assist the defendant’s case.
Credit of the Plaintiff
75 The plaintiff is aged fifty-four. On 3 July 2000, prior to the transport accident, the plaintiff commenced employment as a customer operator at Shell. At the time of the accident, she had been employed at Shell for eleven years.[75] The evidence is that, since April 2004,[76] in addition to her job at Shell, she also worked in a casual position at DBM. The plaintiff told the Court that she took work with DBM as well as full-time work at Shell to financially support herself.[77]
[75]PCB 4, paragraph [28]
[76]PCB 12, paragraph [15] cf: T74, L21 where the plaintiff said she started the job in 2006 or 2008
[77]T75, L3-4
76 The plaintiff’s casual role at DBM entailed working six to nine hours per week. However, the plaintiff limited her working hours to two to three hours each time she attended during the week. The plaintiff told the Court that her role at DBM was not demanding and she performed data entry seated at her desk.
77 Following the transport accident, the plaintiff was absent from work for two-and-a-half weeks by reason of the injuries she suffered. She returned to work in the same position at Shell. In September 2010, her position at Shell ceased to exist. The plaintiff applied for another position within Shell but was unsuccessful. Instead, she obtained a limited tenure position as a specialist pricing analyst, which replaced a colleague on maternity leave who later returned to work at the end of 2011.
78 In August 2011, the plaintiff commenced inpatient treatment at North Eastern Rehabilitation.
79 In December 2011, the plaintiff applied and obtained another position within Shell as a shipping supply operations administrator.[78] The plaintiff’s evidence was that she found the new position difficult as the demands of the new position required one-and-a-half people to complete her work. By May 2012, the plaintiff’s workload was reduced by 30 per cent due to medical reasons. By February 2013, the plaintiff was made medically redundant at Shell.
[78]T74, 21
80 Throughout this period of 2009 to 2013, the plaintiff was working at DBM in a casual position as well as at Shell.
81 In March 2013, the plaintiff underwent a ten-week PTSD outpatient program at Austin Repatriation Hospital.
82 After being made redundant by Shell in 2013, the plaintiff sought alternative suitable full-time employment without success. She continued her casual employment at DBM. In addition, the plaintiff obtained casual market research work with I-view in June 2013, where she was paid $24 per hour.
83 After the first hearing in September 2013, the plaintiff relocated from Melbourne to Warrnambool to live with her mother.
84 In January 2015, she returned to Melbourne to live. Currently, the plaintiff works between 16 and 24 hours per week at DBM. She is also in receipt of a Disability Support Pension.
85 Counsel for the defendant submitted to the Court that to satisfy the severe mental or behavioural disorder involves having to accept the plaintiff as a witness of credit, particularly where there is no objective evidence of the plaintiff’s disorder. In this case, the evidence is subjective, that is, what the plaintiff would have the medical witnesses and the Court believe.
86 Counsel for the defendant focused on two main issues in its attack on the plaintiff’s credit, namely, that she used her medical problems to engineer a medical redundancy payment from Shell and that she failed to disclose her second job at DBM to medical witnesses when it was relevant to their evaluation. I shall address each issue in turn.
87 In respect of the first issue, Counsel for the defendant submitted that the plaintiff’s medical problems did not arise until she worked as a shipping supply operations administrator where she did not have the requisite Excel training and found this position difficult. Counsel submitted that the plaintiff utilised her health problems to engineer a medical redundancy payment from Shell in 2013.
88 However, the medical evidence does not support the defendant’s submission. The plaintiff was reporting to her treating medical practitioners, complaints which were investigated as a possible cardiac condition, shortness of breath and chest pains. The medical evidence is that she was receiving treatment for whiplash and suffering a complete Regional Pain Syndrome for her injuries from the transport accident.[79] She returned to work. In June 2009, her chiropractor reported she had symptoms. In July 2010, the plaintiff was referred to Dr Lim, pain management specialist, who diagnosed the plaintiff with chronic pain. By September 2010, Dr Lim said the plaintiff suffered a complex condition of symptoms consistent with severe PTSD and widespread chronic pain as a result of the transport accident in May 2009. The plaintiff was referred by Dr Lim to a psychiatrist, Dr Elliot, who said the plaintiff consistently presented with symptoms of Major Depression and PTSD.
[79]PCB 91
89 In August 2011, the plaintiff was an inpatient at North Eastern Rehabilitation Centre for a pain rehabilitation program for a period of two weeks. By September 2011, at the time the plaintiff was working as a specialist pricing analyst, both Dr Serry and Dr Walton, psychiatrists, diagnosed the plaintiff with PTSD as a result of the transport accident.
90 The independent evidence is that the quality of her work at this time was good. Mr Clayton Deegan, the plaintiff’s supervisor at Shell, described her as a “hard worker who took pride in her work despite her quite apparent health issues” in his affidavit sworn 30 August 2012.[80]
[80]Clayton Deegan, PCB 23 at paragraph [6]
91 In December 2011, the plaintiff took on a new role at Shell as Shipping Supply Operations Administrator working full-time hours but on reduced duties. She returned to normal duties but was not coping. By August 2012, Dr Elliot was recommending the plaintiff’s hours of work be reduced to a maximum of 15 hours per week.[81] In November 2012, Dr Elliot reported to the Shell occupational physician the plaintiff’s motivation to continue working. This was supported by the evidence of Dr Lim and Dr Chan. The plaintiff’s evidence was that before the accident, her intention was to further her career and continue employment with Shell.[82] Accordingly, due to the lack of medical evidence to support it, I reject the defendant’s submission that the plaintiff used her medical problems to engineer a medical redundancy payment at Shell.
[81]PCB 112
[82]T75, L11-12
92 In respect of the second issue, it was not in dispute between the parties that the plaintiff failed to disclose her casual job with DBM to the medical witnesses. The defendant’s submission was that this was important evidence given the plaintiff was reporting to medical witnesses at the time that she was exhausted with the work she was performing at Shell.
93 The plaintiff’s evidence was she did not think it was relevant at the time as it was not her main source of income or employment.[83]
[83]T23, L10-11, L15
94 During cross-examination in the first hearing, Dr Serry agreed with counsel for the defendant that the second job at DBM was important information.[84] In re-examination, he said the plaintiff’s description of the job at DBM was that she found it easy to manage, was not under pressure and could perform the work at her own pace in a comfortable environment. Dr Serry considered her role at DBM was significantly fewer hours and far less demanding, which was in contrast to the plaintiff’s job at Shell.
[84]OT151
95 Importantly, Dr Serry stated that his knowledge of the plaintiff’s employment at DBM did not cause him to alter his view about her condition and its relationship to the transport accident.[85] In respect to the reliability of the plaintiff, he said that based on his three examinations of the plaintiff, he did not conclude that she was malingering, feigning or exaggerating her symptoms.[86]
[85]OT182
[86]OT178, L14-19
96 In cross-examination, Dr Elliot, treating psychiatrist, said she was not aware that the plaintiff worked a second job at DBM while working at Shell.[87] Dr Elliot told the Court that she was aware the plaintiff started working as a telemarketer from around March 2013 after she ceased employment with Shell. Dr Elliot agreed with counsel for the defendant that it was odd that when she suggested to the plaintiff to reduce her work hours to a maximum of 15 hours per week, the plaintiff did not disclose she was working part time at DBM as well as full time at Shell.[88]
[87]OT193
[88]OT199
97 Nevertheless, Dr Elliot said she accepted the plaintiff’s objective complaints of pain. She saw the plaintiff was uncomfortable during the interviews in having to stand and move around the room.[89] She agreed the plaintiff grimaced, which she said was fairly constant.[90] In re-examination, Dr Elliot said she did not see anything that made her wary of the plaintiff being calculating or deceptive.[91]
[89]OT195
[90]OT203, L16
[91]OT205, L17-19
98 During the first hearing, Mr Coffey, treating psychologist, told the Court that his assumption, whilst he treated the plaintiff in 2012, was that she was employed at Shell and nowhere else.[92] In cross-examination, counsel for the defendant questioned Mr Coffey on whether it would be an important matter for him to consider. Mr Coffey agreed that he would be interested in how she was coping with that work and agreed that it would be important to know.[93]
[92]OT218
[93]OT219
99 Mr Coffey opined that there was no evidence of the plaintiff having a personality of a kind that leads her “to somaticize, to have hypochondrial problems”.[94] When counsel for the defendant asked whether the plaintiff was “putting it on or exaggerating”, he said it was possible but contrary to all his observations.[95]
[94]OT236, L3-5
[95]OT236, L17-18
100 In re-examination, in respect of the plaintiff’s second job, Mr Coffey said:
“It was a matter of some significance that I became aware of it. It’s not infrequent, in a psychiatric examination – in an independent psychiatric examination – where not all information is provided, things are missed, and unless there’s a sustained pattern which appears to be designed to mislead, I wouldn’t place a great deal of weight on not being informed about that prior to my third assessment.”[96]
[96]OT183, L8-14
101 In summary, Dr Serry, Dr Elliot and Mr Coffey expressly stated that they did not form the view the plaintiff was malingering, feigning, exaggerating or being deceptive in regards to her medical condition. Although all of the doctors cross-examined in the first trial considered it was useful information for the plaintiff to have told them,[97] none of the medical witnesses who addressed the plaintiff’s psychiatric or psychological issues changed their medical opinions of the plaintiff once informed of the plaintiff’s second job at DBM. Further, those medical witnesses provided updated reports, which supported the plaintiff for the hearing before me.
[97]Dr Chan, OT72-79
102 Dr Walton said the plaintiff did not inform him that she was working a second job. He did say:
“The fact that she highlighted the difficulty she was having in her principal employment and marked constriction of her social and recreational life are comments which do not sit well with pursing such additional employment. There would appear to be grounds for questioning at least the severity of Ms Campbell’s pain.”[98]
[98]DCB 66
103 Dr Walton also added:
“In my experience, it is most unusual for a person who is engaging in malingering simpliciter to persist in any type of work. Assessing precisely what may be occurring is additionally difficult because it is also well recognised that wilful and conscious exaggeration may co-exist with genuine psychopathology.”[99]
[99]DCB 67
104 However, I do note that the physical doctors, Mr Simm and Dr Fraser, did change their opinion. However, Mr Simm saw the plaintiff on one occasion and Dr Fraser on two occasions. As the plaintiff relies upon a severe long-term mental or severe long-term behavioural disturbance or disorder in the nature of a PTSD and a depressive condition, I place greater reliance on the psychological and psychiatric opinions, particularly those witnesses who treated the plaintiff on multiple occasions. Accordingly, I do not accept that the plaintiff’s failure to disclose her position at DBM to medical witnesses as fatal to her reliability and creditworthiness.
105 I now turn to discuss my observations of the plaintiff’s performance as a witness in Court, which was an issue that counsel for the defendant raised in its closing submission.[100]
[100]T136, L30
106 Throughout cross-examination, I observed the plaintiff as an evasive and argumentative witness who was reluctant to directly answer questions. Counsel for the defendant was forced to put a question several times before the plaintiff would answer the question.[101] One such example is as follows:
[101]T18, L14-19
Q:“But you didn’t have the level of Excel that they wanted, did you?---
A:Well I had basic Excel, otherwise I wouldn’t have got the job.
Q:You keep saying ‘basic’, but you didn’t have the level that they wanted you to have?---
A:No, because they train people in it.
Q:I’ll just ask the question one more time and see if you can answer it correctly with a yes or no: you did not have the level of Excel that they wanted, did you?---
A:No, because I was trained in that role.
Q:No, it’s just a ‘yes’ or ‘no’?---
A:No.” [102]
[102]T18, L22
107 On such occasions, the plaintiff answered a question with a “no” but then repeatedly qualified the answer with further irrelevant information, which I concluded she thought would help her case.
108 A further example of the plaintiff’s apparent argumentativeness was when counsel for the defendant questioned the plaintiff on the surveillance film dated 12 January 2013, where the plaintiff was clearing up rubbish at her house:
Q:Ms Campbell, the video of 12 January shows you at about 12 midday and you there are at home clearing up rubbish, clearing out your house. Correct?---
A:I was talking to my brother-in-law at the side of the house. I wasn’t moving rubbish.
Q:But you carried material out of the house?---
A:There was a bag with plastic bags inside.
Q:We saw you putting something into the wheelie bin?---
A:In the bin, in a bin, yes. Well that was rubbish, yes.”[103]
[103]T51, L19-27
109 Another example where the plaintiff was evasive in answering questions and used the opportunity to present her own case was when counsel questioned her in regards to the surveillance material dated 10 December 2012.[104] In cross-examination, the following occurred:
[104]T47
Q:“The first one, if I tell you, is taken on a Monday, that’s Monday, 10 December. It shows you leaving Shell at about 5.17pm?---
A:Yes
Q:After a full day’s work?---
A:Yes, and I had my medication, pain relief at 4pm which I do every day. I had four – my medication four times.
Q:Yes, we’ll just see if we can---?---
A:Every day.
Q:Just see if we can stick to answering the questions?---
A:Yes but that’s important.”
110 Of particular significance was the plaintiff’s behaviour in the witness box. I observed the plaintiff constantly rubbing her back and audibly sighing in response to counsel’s questions during cross-examination. Counsel for the defendant raised the fact this was in direct contrast to her demeanour in the first hearing and as captured on surveillance. Counsel said:
Q: “And you haven’t done anything?---
A:I’m moving around in my seat, constantly rubbing my back, which I do regularly.
Q:Did you do it last time in 2013?---
A:I’ve been doing it since the car accident.
Q:Did you do it last time in 2013?---
A:Do what, sorry?
Q:Move around in your chair and rub your back?---
A:Yes, I did.
Q:Well, I suggest to you that you didn’t?---
A:I did. I recall doing it.”[105]
[105]T34, L4-11
111 Put simply, I was not overly impressed with the plaintiff as a witness. In my view, in cross-examination, the plaintiff gave evidence to advance her own case and, as a result, she was unwilling to answer simple questions put to her from counsel for the defendant. However, I must acknowledge that she made appropriate concessions at times and also the difficulties lay persons face when giving evidence in cross-examination in a court environment. Apart from the above-mentioned matters, the evidence the plaintiff gave in the hearing before me was consistent with the evidence she gave in the earlier hearing. Further, her complaints about the effects of her conditions to medical witnesses were largely consistent. Other than Mr Simm and Dr Fraser, no medical witnesses suggested the plaintiff was unreliable.
112 In considering the credit of the plaintiff, I must consider the evidence as a whole.
113 The credit of a plaintiff can often be critically important. In Mobilio v Balliotis,[106] Brooking JA, at page 836, stated:
“… Further, where, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant’s credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.”
[106][1998] 3 VR 833
114 The authorities dealing with the issue of credit have stated the following propositions:
(a) Medical opinions based on reports by plaintiffs about their symptoms may be of significantly reduced weight if the plaintiff is shown to be an inaccurate historian, or prone to exaggeration.[107] However, despite the importance of credibility, care must be taken not to disregard reliable medical evidence merely due to concerns about the plaintiff’s credibility. The case must be decided on the whole of the evidence, including objective evidence of diagnostic tests which are unaffected by the plaintiff’s credit;[108]
[107]See Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91] and Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]
[108]See Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]
(b) The demeanor of a plaintiff or her tone of voice and manner of speech and the spontaneity in answering questions are all relevant in determining questions of credit;[109]
(c) Furthermore, an assessment of credit is generally a matter of value judgment, although, of course, a judge must provide some reasons to explain the basis for conclusions regarding credit where credit is a significant issue.[110]
[109]See Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [114]
[110]See Woolworths Ltd v Warfe (op cit) at paragraph [139]
115 In particular, the credit and reliability of a plaintiff become critical issues when dealing with psychological injuries as there must be significant reliance on what that person tells you as to the history of the condition and the nature and extent of symptoms suffered by the person.
116 Nevertheless, in assessing the credit of the plaintiff, I must consider the evidence as a whole. I take into account the following.
117 First, the medical witnesses accepted the plaintiff’s medical problems result from the transport accident.
118 Second, the plaintiff had never required psychological or psychiatric treatment before the transport accident.
119 Third, in so far as any pre-existing problem with her neck was concerned, the plaintiff did not require medication. Her treatment consisted of monthly chiropractic adjustments. She was able to engage in full time employment.
120 Fourth, the plaintiff had been engaged in full time employment with Shell for many years.
121 Fifth, although indicating the plaintiff’s second job would have been relevant evidence to disclose to them upon examination, the psychiatric and psychological doctors did not change their opinions on the plaintiff’s condition as a result. Further, the current medical evidence supports the plaintiff. Accordingly, the plaintiff’s omission to medical witnesses is not fatal to her creditworthiness.
122 Sixth, the medical witnesses, Dr Coffey, Dr Elliot and Dr Serry, who were specifically asked about the plaintiff’s credit, said they did not form the view that the plaintiff was malingering, feigning, exaggerating or being deceptive in regards to her medical condition. This was reinforced by Dr Walton, who said it is well recognised that wilful and conscious exaggeration may co-exist with genuine psychopathology. He concluded by stating the plaintiff’s situation was far from clear.
123 Seventh, a number of the medical witnesses commented favourably upon the plaintiff’s continuation in the workforce.
124 Eighth, the plaintiff’s complaints of her symptoms to medical witnesses were consistent.
125 Ninth, the plaintiff provided an accurate history of her pre-injury medical history when completing the Transport Accident Commission Claim Form.
126 Whilst I was not overly impressed with the plaintiff as a witness in Court, my reservations were largely due to her presentation in Court, rather than the substance of her evidence. Based upon the evidence as a whole, I find that she is a reliable witness.
Analysis of the evidence
(a) Pre-accident mental state
127 The plaintiff gave evidence that she was bullied at Shell, which she described as stressful.[111] However, in re-examination, the plaintiff made clear that she did not require medical treatment, time off from work or medication as a result.[112]
[111]T43
[112]T74, L8-14
128 As the plaintiff had never required psychological or psychiatric treatment before the transport accident, I accept that, at the time of the transport accident, the plaintiff’s mental condition was not in issue.
(b) Post-transport accident events
129 It was not in dispute between the parties that the plaintiff was involved in a transport accident on 30 May 2009. The plaintiff was absent from work for approximately two-and-a-half weeks before she returned to her full-time employment at Shell.
130 The evidence is that, by August 2010, the plaintiff was diagnosed by Dr Chan, general practitioner, with a Chronic Pain Syndrome related to soft-tissue injury following the transport accident. This was prior to her commencing her job at Shell as a specialist pricing analyst, which was a job that she handled well. The evidence was that she ceased that job in about December 2011. While Dr Chan’s notes referred to the plaintiff experiencing stress at work prior to December 2011, these were isolated events. Accordingly, I accept that, by December 2011, work was not causing the plaintiff stress. Rather, her evidence was that stress was related to the transport accident.
131 After December 2011, the plaintiff commenced a position for which she was not appropriately skilled. It was at that time she reported stress associated with work. Accordingly, as I have addressed more fully above, I reject the submission of the defendant that the plaintiff used her health problems to obtain a medical redundancy payment, as this is not supported by the medical evidence.
(c) Current mental state
132 The current psychiatrists and psychologists’ evidence as to the plaintiff’s mental state is expressed as follows:
·Major Depressive Disorder – Moderate severity[113]
[113]Dr N Elliot, treating psychiatrist, PCB 119
·Psychiatric illness as a combination of the following:
(i)Chronic PTSD;
(ii)Moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood;
(iii)Somatic Symptom Disorder with predominant pain, persistent and of moderate severity (previously termed a Chronic Pain Disorder associated with psychological factors and a general medication condition);[114]
·PTSD, Pain Disorder.[115]
[114]Dr Serry, psychiatrist, PCB 232
[115]Dr Lester A Walton, psychiatrist, DCB 65
133 Mr Coffey, treating psychologist, formed the view that there had been a definite improvement in the plaintiff’s conditioning and functioning. He opined that:
“Her pain continues to be restricting and discomforting; however she is less anxious and fearful of her pain; and the experience of it is much less shaped by post-traumatic anxiety. Post-traumatic anxiety directly derived from the index motor vehicle accident is not now a prominent feature of her condition. Her mood is still often depressed, but not to a debilitating degree most of the time.”[116]
[116]Mr G Coffey, clinical psychologist, PCB 101
134 As far as the physical doctors, the following have expressed a view on the plaintiff’s mental condition:
·Chronic Pain Syndrome, which is related to soft-tissue injury and possible pericarditis, which occurred following the transport accident. Major Depression and PTSD, as diagnosed by Dr Lim and Dr Elliot;[117]
·Symptoms consistent with severe PTSD; and
·Widespread chronic pain.[118]
[117]Dr Chan, general practitioner, PCB 44
[118]Dr T Lim, consultant in rehabilitation and pain management, PCB 140
135 In his report dated 16 August 2012, Dr Fraser, rheumatologist, said that from a physical point of view, he did not consider there were any ongoing transport accident-related injuries. He said there was a difference between her presentation and medical examination and that exhibited in day-to-day activities. He questioned any suggestion that she suffered a Chronic Pain Syndrome secondary to “central sensitisation” as proposed by Dr Lim.[119]
[119]DCB 28
136 In October 2012, Mr Simm, orthopaedic surgeon, said the plaintiff had an established pattern of chronic pain, which will persist. He said her condition was largely, if not entirely, due to psychological and psychiatric concerns.[120]
[120]DCB 50
137 I accept that, on the basis of the psychiatric evidence, the plaintiff suffers a mental condition described as Chronic PTSD, Pain Disorder and Major Depression – moderate severity with a Pain Disorder where it is the perception of pain that is driving her condition.
138 I shall now consider the consequences the plaintiff asserts she has suffered due to the transport accident and whether those consequences amount to a “serious injury” pursuant to the Act.
Treatment
139 In respect to treatment, the evidence is that the plaintiff has required regular, ongoing psychiatric and psychological treatment. Initially, the plaintiff was treated for a number of physical complaints due to the transport accident. In December 2009, the plaintiff was referred to a rheumatologist, Dr A Gibson, who treated the plaintiff for chest and back pain. He diagnosed a Chronic Pain Syndrome and referred the plaintiff to Dr Lim.
140 In September 2010, Dr Lim diagnosed symptoms consistent with severe PTSD and widespread chronic pain. Initially the plaintiff saw Dr Lim weekly and then monthly until February 2012. In August 2011, under Dr Lim’s care, she attended a two-and-a-half week inpatient program at the North Eastern Rehabilitation Centre. After the program, she continued with Dr Lim and Dr Elliot, and until January 2012, with a psychologist from the program.
141 Dr Lim referred the plaintiff to Dr Elliot, psychiatrist, due to concerns he had as to the plaintiff’s mental state. The plaintiff has since received psychiatric treatment from Dr Elliot since November 2010 and on a monthly basis since May 2012. Dr Elliot referred the plaintiff to Mr Guy Coffey, clinical psychologist.
142 In March 2013, the plaintiff attended a ten-week PTSD outpatient program at Austin Repatriation Hospital.
143 Currently, the plaintiff receives monthly psychiatric and psychological counselling from both Dr Elliot and Mr Coffey. Both Dr Elliot and Mr Coffey formed the view that the plaintiff required continual treatment into the future, which was supported by Dr Serry. Dr Serry said the plaintiff needs expert mental health treatment for the foreseeable future.[121] Dr Walton said the plaintiff’s progression was guarded; however, he did not comment upon the regularity of her treatment.
[121]PCB 233
144 The plaintiff’s general practitioner, Dr Chan, said the plaintiff consults Dr Lim for management of her Chronic Pain Syndrome, Dr Elliot for management of her mental health issues and Mr Coffey for the management of her PTSD. He recorded that the plaintiff has an ongoing review with the team at North Eastern Rehabilitation Centre, which includes Dr Lim, Dr Elliot and Mr Coffey. She consults her general practitioner on a monthly basis.
145 I accept the plaintiff receives psychological and psychiatric treatment on a monthly basis and also attends her general practitioner monthly. The evidence is that the treatment is appropriate and will continue into the future. I accept that the plaintiff receives considerable treatment. I accept that this is a consequence which I can take into account, which is one at the high end of the scale.
Medication
146 The evidence is the plaintiff has been taking medication for her psychiatric condition since the transport accident. Currently, she takes –
§ Lyrica, 300 milligrams per day
§ Cymbalta, 60 milligrams per day
§ Panadeine Forte, one tablet (to be taken three times per day)
§ Mersyndol (when necessary)
§ Diazepam, 2 milligrams; and
§ Alprazolam, .5 milligrams, as required.
147 The plaintiff told the Court that the Diazepam is prescribed for muscle relaxation and sleep, and Alprazolam is prescribed for intense anxiety.[122] The plaintiff’s evidence was that she takes Diazepam and Alprazolam, on average, twice per week depending on if she is having an anxiety attack or suffering back spasms.[123]
[122]T84
[123]T83-84
148 The level of medication the plaintiff takes is a consequence I can take into account, which was opined by Dodds-Streeton J in Kelso v Tatiara Meat Co Pty Ltd,[124] where she said:
“The 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.”
[124](2007) 17 VR 592 at paragraph [199]
149 This proposition was endorsed by Tate JA in Sutton v Laminex Group Pty Ltd.[125]
[125](Supra) at paragraph [91]
150 I accept that the plaintiff continues to suffer as a result of the injuries from the transport accident and takes an appropriate level of medication. There is no suggestion by the doctors that her treatment will vary. I accept that the level of medication the plaintiff takes is a consequence I can take into account and it is at the high end of the scale.
Work
151 To the plaintiff’s credit, she has continued to maintain part-time employment. The current evidence is that the plaintiff is employed part time with DBM in a telemarketing role. The plaintiff told treaters that she regarded her job at DBM as of far less importance than the job she held at Shell.[126] Dr Elliot said the plaintiff considered her job at Shell as very important at a corporate level of work, which she has lost. She did not consider her casual work at all important.
[126]Dr N Elliot, OT206, L5
152 Currently, the plaintiff works 16 to 24 hours per week at DBM but finds it difficult to complete her longer shifts. Dr Lim said the plaintiff has a maximum capacity of four hours per day, five days per week. He noted that:
“Ms Campbell is one of the few patients I know who has consistently wanted to and importantly, effected a return to some form of employment, rather than remaining completely reliant on the welfare system.”[127]
[127]PCB 146
153 Dr Lim’s opinion is consistent with the view expressed by Dr Walton, who said:
“In my experience it is most unusual for a person who is engaging in malingering simpliciter to persist in any type of work.”[128]
[128]DCB 67
154 Dr Chan said the plaintiff’s capacity to continue to work is likely to be significantly limited into the future.
155 Dr Elliot formed the view that the plaintiff does not have a capacity to work more than she is currently and that her current capacity reflects her future capacity. That is, working 16 to 20 hours per week.[129]
[129]PCB 118
156 Dr Lim opined that work up to 20 hours is likely to be the plaintiff’s future employment capacity.
157 Dr Serry was aware the plaintiff was working, but did not express a view on her future working capacity other than to say her prognosis was extremely guarded.
158 Mr Coffey noted that her current level of work is compatible with her present psychological capacity in his recent report dated 6 February 2016.[130]
[130]PCB 101
159 Counsel for the defendant submitted that the plaintiff was tailoring her hours of work for some financial advantage because she received Centrelink payments.[131] However, I reject the defendant’s submission on the basis it is not supported by medical evidence. As such, I accept the plaintiff’s submission that the plaintiff did not tailor her hours for some financial advantage.[132] The evidence of the medical witnesses supported the fact that the plaintiff cannot increase her hours of work, and the hours of work she undertakes are appropriate.
[131]T108, L10-15
[132]T151, L8-10
160 I accept that, prior to the transport accident, the plaintiff was employed with Shell in an administrative position from which she gained considerable enjoyment and satisfaction. She was proud of her work achievements. Whilst she was employed with Shell, she worked in a casual telemarketing role with DBM. The evidence is the plaintiff’s position at Shell no longer exists. She unsuccessfully applied for another position with Shell but was then offered a short-term contract, which ended when the former employee returned from maternity leave. The evidence of her superior was that she was good at that job. She was later moved to another position within Shell, which she found difficult. She ceased that position on medical grounds.
161 Apart from twelve months when the plaintiff was living at Warrnambool with her mother and unable to obtain employment, the plaintiff has continued to work part time at DBM. The medical evidence is that she can continue to work part time, up to 20 hours per week, for the foreseeable future.
162 I accept that a consequence of the transport accident is that, because of her mental condition, the plaintiff can only work up to 20 hours per week, working in a position which is considerably less demanding than the employment she had at Shell at the time of the transport accident. I accept this is a considerable consequence to the plaintiff, which is at the middle to high end of the range.
Relationships
163 The plaintiff’s evidence is that she has formed relationships which do not last and she believes that the transport accident has contributed to this. She has reported these failed relationships to medical witnesses. In her second affidavit, the plaintiff commented on the devastating affect her break-ups have had on her self-esteem. She believes her injuries are interfering with personal relationships and the prospects of meeting a partner.[133]
[133]PCB 10
164 I accept that this is a consequence I can take into account; however, it is at the low end of the scale.
Sleep
165 The plaintiff told the Court that her sleep pattern is affected by her injuries resulting from the transport accident. She said that she does not sleep at night due to pain.[134] Her evidence was that she gets stabbing pains in the back of her neck and as a result has discomfort sleeping. She reported her lack of sleep to medical witnesses. In her second affidavit, the plaintiff said that the lack of sleep causes tiredness and lethargy at work on occasions.[135] In her most recent affidavit, she confirmed that she her sleep has not improved at all.[136] The plaintiff told the Court that she is prescribed Diazepam for muscle relaxant and sleep.
[134]T37
[135]PCB 11
[136]PCB 20
166 I accept disturbed sleep is a consequence I can take into account. There is no evidence that sleep was an issue prior to the transport accident. I accept this is a consequence in the medium level of the range.
Quality of life
167 The plaintiff’s evidence is that she feels hopeless and has a bleak outlook on her future. Ms Arklay, the plaintiff’s mother, described in her affidavit that the plaintiff used to be a positive and bubbly person but now appears to have no motivation or stamina.[137]
[137]PCB 26
168 In the plaintiff’s most recent affidavit, she summarised her quality of life following the transport accident as follows:
“I feel like I have lost control of my life. I can’t get my old life back and I want it back. I feel hopeless, depressed, sad and anxious and the pain just won’t go away. It affects my social life, my working life and my relationships. I continue to have pain through my back, neck and shoulders. The pain is aggravated by day to day activity. I struggle to do housework. I frequently feel tired, exhausted, irritable, forgetful and depressed. I don’t sleep well. At times I get stressed and when I get stressed, I often get an increase in pain. I hate what I have become and how my life now is. I have had suicidal thoughts. At times I feel like I would be better off dead, particularly when I am stressed and not thinking clearly. At times I have been stressed and I have needed to leave work early. I am much less active and I have put on weight. I feel like my whole life has been impacted on by the transport accident.”[138]
[138]PCB 20-21
169 Medical witnesses also referred to the plaintiff’s reduced quality of life. Dr Elliot said her chronic pain condition will continue indefinitely and continue to result in major restrictions and greatly reduce her quality of life. Dr Elliot believed there would be some degree of mood disturbance secondary to this, which would continue indefinitely.
170 The plaintiff reported these matters to Dr Serry, who made the following observations of the plaintiff:
“There has been a fairly dramatic change to your client’s lifestyle. Mobility is restricted by physical factors and further still, given anxiety when on the road.
Personal relationships have been markedly compromised. Your client described being unable to sustain a relationship since the accident and she also described having become somewhat reclusive. Further still, there appears to have been a falling out with her mother.
…
Her leisure activities are still very much restricted.”[139]
[139]PCB 233
171 I accept that, as a consequence of the transport accident, the plaintiff’s quality of life has been affected. The plaintiff has reported this to many of the medical witnesses who have observed this consequence to her. The medical witnesses have described this consequence as having “fairly dramatically” and greatly reduced her quality of life. I accept this is a consequence at the high end of the scale, which I can take into account.
Conclusion
172 I accept that the plaintiff has suffered the above-mentioned consequences, which are supported by the plaintiff’s evidence and the medical evidence.
173 Taking all of the evidence into account, I am satisfied the plaintiff was involved in a transport accident which, to this plaintiff, resulted in her experiencing a psychiatric condition. The plaintiff has suffered since the time of the accident in May 2009. I accept the medical evidence is that the plaintiff’s mental condition is long term and constant. The medical evidence is that her condition is guarded and there is no suggestion that there will be any improvement in her condition. Accordingly, I accept the condition is permanent.
174 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her mental condition can reasonably be described as “severe”. The word “severe” in the definition of the Act has been said to be a word of “stronger force” than the word “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications relating to a mental or behavioural disturbance or disorder where plaintiffs have been successful. The evidence does disclose symptoms and consequences seen in mental disturbances at the more severe end of the spectrum, including hospitalisation, significant psychiatric and psychological treatment, medication at significant levels and symptoms, including suicidal ideation. The plaintiff has lost her capacity to work in a corporate job at which she worked successfully and in a position from which she derived enormous satisfaction and self esteem. Now she is limited to part-time work, no more than 20 hours per week, performing work which she finds considerably less demanding and not at all important. She is left performing her extra work she did prior to the transport accident. She no longer can perform her main work. In considering the consequences, I have not treated each consequence as equal but rather attributed appropriate weight to each consequence in light of the evidence.
175 I accept that the mental condition has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, can be fairly described, as at the date of hearing, as “at least very considerable” and certainly “more than significant or marked.”[140]
[140]Humphries & Anor v Poljak [1992] 2 VR 129
176 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages in relation the transport accident on 30 May 2009.
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