Campbell v Transport Accident Commission
[2014] VCC 1390
•28 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00345
| JANE ELIZABETH CAMPBELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 16, 17, 18, 19 and 20 September 2013 | |
DATE OF JUDGMENT: | 28 August 2014 | |
CASE MAY BE CITED AS: | Campbell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1390 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Permanent severe mental disturbance
Legislation Cited: Transport Accident Act 1986, s93(17)(c)
Cases Cited:Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Li v Toyota Motor Corp Australia Limited [2010] VSC 458; Dordev v Cowan & Ors [2006] VSCA 254; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314
Judgment: Leave granted to the plaintiff to issue proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis QC with Mr B J McCullagh | Slater & Gordon Ltd |
| For the Defendant | Mr P Y Rattray QC with Mr P J Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered by the plaintiff arising out of a transport accident on 30 May 2009. On that occasion, the plaintiff was a passenger in a vehicle driven by her mother when that vehicle was struck by another vehicle that had failed to stop at a red traffic light. The impact of the collision caused the plaintiff’s car to flip over and to be simultaneously spun round 180 degrees. The plaintiff was thrown sideways, backwards and forwards within the car, and airbags were deployed.
2 As a result of the accident, it is common ground that the plaintiff suffered soft-tissue injuries, at least to her neck and back, and that these soft-tissue injuries were causally related to the development of a mental or behavioural disturbance or disorder in accordance with the principles laid down in Veljanovska v Socobell Oem Pty Ltd.[1]
[1][2005] VSCA 227
3 At the conclusion of the hearing, it would appear that the issues in the case revolved around the following matters:
(a) The plaintiff’s credit was called into question, such that it was submitted that the supporting medical practitioners’ opinions were rendered unreliable because the doctors had been misled;[2]
[2]Li v Toyota Motor Corp Australia Limited [2010] VSC 458
(b) Alternatively, the histories provided by the plaintiff had, in any event, sufficiently misled the medical practitioners such that their supporting opinions were unreliable;[3]
(c) Even accepting the supporting diagnoses, the level of impairment is not such that it could be described as “severe” within the meaning of the legislation.
[3]Dordev v Cowan & Ors [2006] VSCA 254
4 The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[5] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[4][1998] 3 VR 833
[5](1995) 21 MVR 314
5 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
6 The plaintiff relied upon three affidavits, sworn 4 August 2011, 18 December 2012 and 6 December 2013.[6] She also relied on affidavits by her mother, Carmel Arklay, sworn 20 January 2012,[7] her daughter, Sarah Hutton, sworn 28 February 2012,[8] and a former supervisor of her employer, Mr Mark Deegan, sworn 30 August 2012.[9]
[6]Exhibit C
[7]Exhibit E
[8]Exhibit F
[9]Exhibit D
7 The plaintiff gave viva voce evidence and was cross-examined. The plaintiff’s treating psychiatrist, Dr N Elliott, and treating psychologist, Mr G Coffey, together with medico-legal psychiatrist, Dr N Serry, were all cross-examined.
Credit/Histories
8 Defence Counsel concentrated on the following matters:
(a) The plaintiff was not forthcoming about stressors and demands of her job prior to injury, and in particular, that she was being bullied by a supervisor;
(b) The plaintiff was not forthcoming about the frequency of chiropractic treatment for her neck prior to the injury;
(c) The plaintiff had not given an adequate history to her treating practitioners that she was in fact employed in a second job as a market research assistant after ceasing her regular job with Shell;
(d) DVD film taken of the plaintiff demonstrated a range of movement which was inconsistent with her presentation to various medical practitioners.
Medical treatment
9 It would appear that prior to the accident, the plaintiff had no need for medication for pain, anxiety or depression.[10]
[10]Transcript (“T”) 78
10 Following the accident, the plaintiff was taken to Warrnambool Base Hospital and kept for observation overnight. Her neck was put in a hard collar for two weeks and then changed to a soft collar, which continued for three months.
11 Following her discharge from hospital, she attended her local doctor at the Riversdale Medical Centre and was referred for chiropractic treatment. Initially, she received such treatment several times per week from Dr Mark Navin.[11]
[11]Exhibit K
12 Thereafter, the plaintiff developed more frequent episodes of chest wall pain and was admitted to St Vincent’s Private Hospital on 18 September 2009, 2 October 2009 and 23 October 2009. She also attended the Box Hill Hospital due to breathlessness and chest pain in September and October 2009 and January and February of 2010.
13 By 24 March 2010, the treating general practitioner, Dr Chan, had recorded that the treating physiotherapist considered there was tightness and spasm in the back muscles, and recommended a muscle relaxant. The plaintiff was commenced on a small dose of Diazepam at night.[12]
[12]Exhibit G – Plaintiff’s Court Book (“PCB”) 48
14 By 23 July 2010, Dr Chan accepted a recommendation that the plaintiff was developing a Chronic Pain Syndrome, and referred the plaintiff to Dr Terrance Lim, a consultant in rehabilitation and pain medicine.[13] At that time, Dr Chan considered the plaintiff was suffering from a Chronic Pain Syndrome which was related to soft-tissue injury and possible pericarditis which occurred following her transport accident. The diagnosis of Chronic Pain Syndrome was based on the fact that she continued to suffer symptoms, but extensive investigations had not been able to reveal any specific organic cause of these symptoms.[14]
[13]PCB 48
[14]PCB 48
15 Dr Terrance Lim took over the clinical management of the plaintiff at the Boston Health Chronic Pain Clinic. He reported on 20 July 2013 and recited that he had reviewed and treated the plaintiff on a number of occasions between 30 September 2010 and 16 July 2013. At that stage, he was managing, in particular, her “persistent severe backache”.[15]
[15]Exhibit Q – PCB 127.6
16 When first seen in September 2010, she was complaining of persistent mainly thoracic level pain. However, he believed that she was emotionally “significantly affected by symptoms consistent with PTSD, a consequence of the motor vehicle accident in May 2009”.[16] He took a history that she had apparently suffered soft-tissue injuries affecting her neck/shoulder girdles and thoracic spine, and had been treated by a chiropractor, as well as a physiotherapist whom she was continuing to attend on a fortnightly basis, as well as an acupuncturist.[17]
[16]Exhibit Q – PCB 127.7
[17]Exhibit Q – PCB 127.7
17 At that stage, the plaintiff was continuing to work for Shell Oil in an administrative position on a full-time basis. Previously, she had been a passionate golfer but her persistent severe pain determined that she was unable to pursue her normal recreation. She was also experiencing fitful sleep. Part of the history consisted of constant flashbacks to the accident and a complaint of increasing difficulty breathing with the passage of each day. Her medications at that time included Panadeine Forte, Mersyndol, valium and Lyrica. Overall, he considered her symptoms were consistent with severe Post-Traumatic Stress Disorder (“PTSD”) and widespread chronic pain due to the development of central sensitisation as reflected by her symptoms. Dr Lim explained that “central sensitisation” is due to scientifically-proven organic changes that occur in the pain pathways of the central nervous system, a consequence of having suffered an episode of acute or nociceptive pain caused by an initial injury.[18]
[18]Exhibit Q – PCB 127.8
18 Dr Lim considered the plaintiff would benefit from attending a rehabilitation program but before she was ready, he would refer her to Dr Naomi Elliott, a rehabilitation psychiatrist, to commence the process. In the meantime, he increased the dose of Lyrica.[19]
[19]Exhibit Q – PCB 127.10
19 Following referral to Dr Elliott, Dr Lim noted the plaintiff was commenced on an anti-depressant, Lexapro, and thereafter, was admitted as a two-week inpatient to “kick-start” the program before continuing as an outpatient to consolidate.[20]
[20]Exhibit Q – PCB 127.11
20 When Dr Lim reviewed the plaintiff on 9 June 2011, he advised her to wean herself off Panadeine Forte because she was taking six per day and there was a concern with abnormal liver function tests, most likely due to excessive paracetamol intake.[21]
[21]Exhibit Q – PCB 127.11
21 Thereafter, the plaintiff was admitted as an inpatient to the rehabilitation facility on 16 August 2011 for two weeks.
22 Dr Lim noted that the plaintiff was working on a graduated return to work program in the first week of September 2011, working two-and-a-half days per week and then reporting being overwhelmed by the volume of work on her return.
23 On 29 November 2012, Dr Lim wrote to the Senior Occupational Physician at Shell Australia Limited, Dr Arthur Stratigopoulos.[22] In essence, he stated that the plaintiff was not fit to resume the 30 per cent of job tasks that had been temporarily redirected to others over the last five months. Further, he considered that she would require job modifications on a longer term basis. Finally, he recommended that she be recognised as suffering from serious medical conditions, which might be physically “invisible” but still evident and severe, requiring highly specialised care.[23] He thought it was important for her to continue in her current duties as the work was therapeutic.
[22]Exhibit Q – PCB 132.1
[23]Exhibit Q – PCB 132.1
24 By 20 December 2011, Dr Lim considered that it was the “physical symptoms of PTSD that were more significant than her pain condition”.[24] His strategy at that time was for the plaintiff to self-treat the physical manifestations of her centrally sensitised pain state, which would concentrate on the physical manifestations of PTSD, whilst Dr Naomi Elliott would continue to address the emotional aspects of the condition.[25]
[24]Exhibit Q – PCB 127.12
[25]Exhibit Q – PCB 127.12
25 Thereafter, the plaintiff commenced attending a ten-week PTSD Outpatient Program at the Austin Repatriation Hospital on 14 February 2013. By this time, the plaintiff had lost her job at Shell, “being made medically redundant”.[26]
[26]Exhibit Q – PCB 127.12
26 Following that course, the plaintiff reported that she enjoyed same and was continuing to attend one of the counsellors weekly. She was also continuing to attend her treating psychiatrist, Dr Elliott, fortnightly.
27 At that stage, the plaintiff had been working casually in market research for up to 16 to 20 hours per week, depending on availability. Her current medications included, at that time, Panadeine, Mersyndol, diazepam, Lyrica and alprazolam, as well as an antidepressant. She was still complaining of severe and persistent backache as a major problem.[27]
[27]Exhibit Q – PCB 127.13
28 As at July 2013, Dr Lim recommended that the plaintiff should continue to attend both himself and Dr Elliott. He considered that:
“… Unless her emotional state settles further, her pain levels will continue to trouble and disable her well into the future i.e. many, many years. However, she is currently doing the best that she can – 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.”[28]
[28]Exhibit Q – PCB 127.14
29 Dr Lim considered that the plaintiff had the capacity to work 20 hours per week in office-based duties which ideally –
“… should allow her to change position and self-treat as required and with minimal repetitive duties.”[29]
[29]Exhibit Q – PCB 127.14
30 He considered this would be the limit of her capacity for the future as he expected –
“… her present problems of still being significantly affected emotionally by the memory of the MVA and the chronic pain condition to continue in a similar vain (sic) for many more years.”[30]
[30]Exhibit Q – PCB 127.14
31 The treating psychiatrist, Dr Elliott, reported to the Court[31] and was cross-examined. She had seen the plaintiff on a total of thirty four occasions up until 3 September 2013. She noted, as at 26 February 2013, that the plaintiff had accepted a medical redundancy at Shell and that she was renting a house in Balwyn North and had a housemate to help her with bills. She was also seeing a psychologist, Mr Guy Coffey, regularly.
[31]Exhibit M
32 As at March 2013, the plaintiff was continuing on Lyrica, 75 milligrams bd, 150 milligrams at night; Cymbalta, 60 milligrams mane; Xanax, 0.5 milligrams every few days; “Dry eyes no worse on Cymbalta than Lexapro”.[32]
[32]Exhibit M – PCB 119.1
33 The history at that stage was the plaintiff was complaining of headaches and feeling tired all the time. She had found some work doing market research on 3-hour shifts but found she was not as quick as the other workers.
34 Further, on 30 April 2013, Dr Elliott recorded:
“… Sleep continues to be poor due to pain. Episodes of intense anxiety or panic attacks once per week.”[33]
[33]Exhibit M – PCB 119.1-2
35 Further, she noted:
“… Finding it difficult to meet people. People do not accept her chronic pain. Casual work only. Wants to avoid going to Centrelink. Lost contact with friends, feels ashamed that has no job. Suggested getting in touch with friends by email.”[34]
[34]Exhibit M – PCB 119.2
36 Further, on 3 September 2013, it is recorded:
“Has decided to move back to mother’s house. Hates telemarketing job at call centre. Hours vary a lot. Feels she is not fast or efficient enough. Housemate is moody and introverted. Huge anxiety attack at the weekend. … .”[35]
[35]Exhibit M – PCB 119.2
37 The prognosis at that stage was:
“It is likely that Jane’s chronic pain condition will continue indefinitely. … .”[36]
[36]Exhibit M – PCB 119.2
38 Further, her current capacity for work was described as:
“… a work capacity of 10 hours per week currently and it is likely that this will continue into the future. … .”[37]
[37]Exhibit M – PCB 119.3
39 Dr Elliott had also written to Dr Stratigopoulos on 20 November 2012 to the effect that with the 30 per cent reduction in workload, that this represented her maximum capacity. Her then current status was that she was likely to require her medications on a permanent basis due to her chronic pain.[38]
[38]Exhibit M – PCB 119.4
40 Dr Elliott’s diagnosis is one of Major Depression and PTSD.[39]
[39]Exhibit M – PCB 114
41 Dr Elliott also referred the plaintiff to psychologist, Mr Guy Coffey, on 28 May 2012.[40] Thereafter, he saw her with a frequency between weekly and monthly, including treatment from his services, Post-Traumatic Stress Disorder Group Treatment Program, which was conducted for two days a week for eight weeks in March and April of 2013.[41]
[40]Exhibit P
[41]Exhibit P – PCB 127.1
42 On the first occasion, the plaintiff gave a history of pain along the full length of her back, her neck and her sternum, which she said was painful to touch. The pain became progressively worse during the day.[42]
[42]Exhibit P – PCB 127.3
43 Whilst working at Shell, the plaintiff was very stressed and had been assessed as not performing as well as previously. Mr Coffey considered she was approaching a major depressive episode and noted that she experienced post-traumatic anxiety symptoms without a full picture of PTSD.[43]
[43]Exhibit P – PCB 127.4
44 Mr Coffey noted that in late February 2013, the plaintiff received a medical redundancy from her employer and she hoped to find alternative employment using her administrative and software skills in a part-time position.
45 Mr Guy recorded:
“… A few times a week, she was experiencing panic symptoms when feeling overwhelmed by her pain and her situation. At such times she felt a compression on her chest, breathlessness, increased heart rate and agitation. She feared she was going mad, and that she might scream out. Sometimes she saw an image from the MVA in which she was a skeleton being thrown around like a ‘rag doll’. She was often beset by many worries about her prospects of finding suitable work, her parents’ health, fears that her pain would become even worse, and that she was ‘at the end of the road’. Quite uncharacteristically on a number of occasions in the past few months she has drunk alcohol to excess and felt quite hopeless about her prospects. She reported a diminished social life. She said she has attempted to form relationships but that potential partners were put off by the extent of her life revolved around her medical care and the restrictions on what she could participate in.”[44]
[44]Exhibit P – PCB 127.4
Is the mental disorder “severe”?
46 Defence Counsel calls into question the reliability of diagnoses and in turn, the severity of the mental disorder, principally for the following reasons:
(a) Surveillance taken of the plaintiff on thirteen different occasions between 29 October 2012 and 31 August 2013 purportedly shows a range of movement by the plaintiff which suggests that she is relatively pain free and able to carry out such domestic tasks as shopping, driving and bending from the waist into the boot of her car;
(b) The plaintiff has not been forthcoming about her ability to form a relationship with members of the opposite sex and in particular, with respect to two recent relationships, one of which lasted for six months;
(c) The plaintiff was not forthcoming to her treating doctors about the fact of attending to a second job after hours when she had completed her daily employment with Shell;
(d) The plaintiff had not been forthcoming about the extent of her pre-existing neck condition.
47 Factors (a), (c) and (d) were considered by orthopaedic surgeon, Mr Rodney Simm, following an examination on 17 October 2012.[45] He was retained by the defendant. He took a history that the plaintiff –
“… had been a longstanding patient of a chiropractor for recurrent symptoms of neck stiffness, and prior to … [the motor vehicle] accident she was having ‘normal adjustments’ of the cervical spine every four to six weeks over a period of eight or nine years.”[46]
[45]Exhibit 10 – Defendant’s Court Book (“DCB”)
[46]Exhibit 10 – DCB 45
48 Mr Simm further noted the wide range of treatment following the accident, referred to above.[47] He further noted that she was still employed with Shell at that time but there had been a 30 per cent reduction in her workload because of the pain in her spine. Relevantly, he noted:
“… She co-operated fully with the medical examination.”[48]
[47]Exhibit 10 – DCB 45
[48]Exhibit 10 – DCB 47
49 On examination, he noted:
“Movements of the cervical spine were moderately restricted in all directions and movements were associated with some pain behaviour, which included facial grimacing and puffing. … .”[49]
[49]Exhibit 10 – DCB 48
50 There was also pain behaviour on movements of the thoracolumbar spine with facial grimacing and some puffing.[50]
[50]Exhibit 10 – DCB 48
51 Mr Simm’s diagnosis was that of a soft-tissue injury to the neck with aggravation of pre-existing non-specific mechanical neck pain for which she had had chiropractic treatment for a number of years prior to the accident. There was also a possible soft-tissue injury to the thoracic region of the back. He thought her back symptoms were probably part of the symptom complex of a Pain Syndrome rather than an indication of an ongoing physical condition of the back.[51]
[51]Exhibit 10 – DCB 49
52 Although she had been involved in another motor vehicle accident in September 2012, he thought the effects of that accident had been temporary.[52]
[52]Exhibit 10 – DCB 49
53 Mr Simm’s prognosis was that the plaintiff had an established pattern of chronic pain which would persist:
“… She has had a very extensive programme of pain management with multiple interventions from multiple practitioners, all without success. … .”[53]
[53]Exhibit 10 – DCB 50
54 Further, he thought that she would continue to prove most resistant to treatment. He also considered that:
“Protracted spinal pain, in association with a psychological disturbance is a common clinical syndrome seen after road trauma.”[54]
[54]Exhibit 10 – DCB 50
55 Although he was unable to identify a physical injury that required ongoing medication, he acknowledged that she suffered from some form of chronic pain illness associated with the transport accident and such patients do require medication which includes analgesic medication and neuropathic pain medication such as Lyrica. He thought that her future treatment should be determined by specialists in the management of chronic pain and psychiatry. Finally, he stated:
“… Her complaint of pain cannot be ignored and I accept that pain does interfere with her ability to work.”[55]
[55]Exhibit 10 – DCB 51
56 In a further report dated 23 January 2013, Mr Simm commented on some of the films shown to the plaintiff in cross-examination, being 10, 14, 15 and 17 December 2012, which included 22.39 minutes of film. He stated:
“The subject of the film was seen walking, accessing the boot of a vehicle and accessing the driver’s seat of the vehicle. Although she did not move her back or head and neck to extremes, she otherwise displayed normal pain-free movement of the neck and back. There was no hesitation when moving the neck and no indication that the movements were associated with pain. The subject of the film moved differently from Ms Campbell when examined on 17 October 2012. I observed her to display frequent overt signs of pain when demonstrating only moderate movements of the cervical spine. The overt pain signs included facial grimacing and puffing, which was not evident on the DVD.”[56]
[56]Exhibit 10 – DCB 53
57 Mr Simm considered, therefore, there was a distinct possibility that the plaintiff was exaggerating the degree of disability compared to when formally medically examined. However, he said the plaintiff was not shown to undertake any heavy lifting, move to extremes or undertake strenuous physical activities that were incompatible with the history provided by her.[57]
[57]Exhibit 10 – DCB 54
58 Mr Simm further stated the fact that the plaintiff had omitted to tell him about a second job working for the market research company would again suggest that –
“… there may be some amplification of the affects (sic) of her injuries when formally medically assessed.”[58]
[58]Exhibit 10 – DCB 54
59 Dr Kevin J Fraser, rheumatologist, retained by the defendant, also observed the same surveillance film. He had previously opined that the plaintiff was suffering from a psychologically-based Chronic Pain Syndrome, secondary to a trauma sustained in the motor vehicle accident. He also noted she was being treated for Major Depression and PTSD.[59] He also considered there were no restrictions of neck, back or arm movements and the plaintiff was able to get in and out of her car without apparent difficulty. He also considered that –
“… Despite her claim that she doesn’t ‘socialise’ as much as before the accident, she obviously mixes with work colleagues and was observed entering and leaving a bar/pub.”[60]
[59]Exhibit 9 – DCB 55-56
[60]Exhibit 10 – DCB 55
60 Dr Fraser therefore considered there was voluntary overreaction on his physical examination, and his opinion was that he –
“… no longer consider that a psychologically based chronic pain syndrome is responsible for her symptoms and signs. It seems that she was consciously exaggerating both.”[61]
[61]Exhibit 10 – DCB 55
61 Further, he stated:
“… It also seems particularly odd that she is able to work a second job when she said that ‘the volume of work is too much for me and I can’t do it …’, in referring to her job at Shell.”[62]
[62]Exhibit 10 – DCB 55
62 Although the defendant chose to show some of the film to the “physical” medical practitioners, they did not show any film to their consulting psychiatrist, Dr Lester A Walton. He reported on 8 September 2011, 3 September 2012 and 20 September 2012.[63]
[63]Exhibit V
63 In his first report, Dr Walton considered that the plaintiff –
“… does exhibit incident-specific anxiety, mild avoidance behaviour, replay, nightmares and flashback memories, such that she would qualify for a diagnosis of a post-traumatic stress disorder but that particular component of her symptoms is reasonably mild.”[64]
[64]Exhibit V – PCB 175
64 He considered that continuing psychiatric treatment was required and the prescription of anti-depressant medication was indicated.[65]
[65]Exhibit V – PCB 177
65 On the second occasion, being 21 August 2012, Dr Walton noted that the plaintiff’s medication currently was Panadeine Forte, three daily; Lyrica, 300 milligrams daily; Alprax, 0.5 milligrams daily as necessary, typically two to three times a week; Nexium, 20 milligrams daily; Cymbalta, 60 milligrams daily and valium, 2 milligrams as necessary for muscle spasm.[66]
[66]Exhibit V – PCB 182
66 On this occasion, the plaintiff gave a history that she had been struggling with the volume of work at Shell and that over the previous three months, her duties had been decreased. She said that she tended to lose concentration and made mistakes and had received a poor mid-year work evaluation. She was worried that she would be retrenched.[67]
[67]Exhibit V – PCB 183
67 Dr Walton’s diagnosis was still one of PTSD and Pain Disorder,[68] and he considered that the overall prognosis was guarded.
[68]Exhibit V – PCB 184
68 As to her treatment, he considered that she was in receipt of reasonably intensive psychiatric treatment from both a psychiatrist and a psychologist. He stated he could describe that as excessive, and he believed it was important that she participate in the PTSD Course –
“… if there is to be any hope of reversing her symptoms, although I regard that prospect as reasonably remote.”[69]
[69]Exhibit V – PCB 185
69 Although she was in full-time work at that stage, he considered that it was –
“… highly likely that her depressed mood and the poor motivation associated with that, as well as the specific difficulties with memory and concentration, will impact adversely upon her work capacity. … .”[70]
[70]Exhibit V – PCB 186
70 Dr Walton stated:
“… Her social life is limited but not non-existent. … .”[71]
[71]Exhibit V – PCB 186
71 Finally, he stated:
“I would have to state that I am not especially optimistic that the proposed future psychiatric treatment for Ms Campbell will produce a favourable outcome but it is clinically indicated and should be attempted. I believe that you do have liability for that intervention.”[72]
[72]Exhibit V – PCB 186
72 It is not clear to me why the defendant chose to show the surveillance film to the physical doctors but not to their retained psychiatrist when all practitioners agree that the diagnosis and treatment lay in the area of psychiatry.
73 The plaintiff, for her own part, in her original Claim for Compensation under the Act dated 31 May 2009, disclosed that Dr Mark Navin had been her pre-accident treating chiropractor and that she had been having monthly adjustments from him.[73]
[73]Exhibit A
74 Further, in her first affidavit sworn 4 August 2011, the plaintiff swore that she had been previously suffering from occasional neck pain for which she had received chiropractic treatment. This treatment was said to be for maintenance of her neck and the pain was mild. She reported that the pain and stiffness had now considerably worsened since the accident and was now constant. She was taking no medication prior to the accident and was now taking a raft of medication.[74] Further, she stated:
“I used to be an outgoing person. I do not go out as much any more and I have reduced my contact with my friends. If I go, it is only for dinner or for a movie. On the occasion I go to the movies, I take a cushion with me but I feel uncomfortable and keep moving in my seat, which does not make the outings enjoyable.”[75]
[74]Exhibit C – PCB 7, paragraph 15
[75]Exhibit C – PCB 10, paragraph 44
75 Further, she said:
“I have lost interest and motivation. I have no libido and feel anxious most of the time.”[76]
[76]Exhibit C – PCB 10, paragraph 48
76 In her second affidavit sworn 18 December 2012, the plaintiff stated:
“My social interaction has also been affected as I am now am (sic) limited to going to the movies or out for dinner with friends perhaps once or twice a month. I used to enjoy dancing which I have not been able to do since the transport accident. When I do go out, I always take a pillow with me and wheat bag which I find embarrassing. I am single and I have recently attended singles dinners. I met a man at the beginning of this year and we dated for approximately six months. During this time, he became aware of my transport accident related injuries and after being intimate on two occasions, it aggravated my back pain. Our relationship ended soon after. I recently met another man at a singles dinner and since been on a couple of dates. This relationship has ended when I told him about my transport accident injuries. These two break-ups have been devastating for my self esteem as I feel that my injuries are interfering with my personal relationships and prospects of meeting a partner.”[77]
[77]Exhibit C – PCB 14, paragraph 10
77 Further in this affidavit, she stated:
“… I augment my income at Shell with a casual job at DBM Market Research in Hawthorn, doing data entry, which job I performed before the transport accident, since April 2008. I work six to nine hours per week and the days I work vary during the week. The work is not demanding and I perform the data entry seated at a desk. I take my pillow and heat bag with me. I limit my working hours to two to three hours each time I attend during the week.”[78]
[78]Exhibit C – PCB 16, paragraph 15
78 In her third affidavit sworn 6 September 2013, the plaintiff stated she had been made medically redundant from her job at Shell Australia effective from 15 February 2013. She was also paid an “ill health benefit” from her employer’s superannuation fund. She stated she believed this was on the basis of the impact of her accident-related injuries which had, and were continuing to have, an effect on her employment capacity. Since her redundancy, she had been trying to find alternative suitable employment in light of her neck, back and psychological injuries.[79]
[79]Exhibit C – PCB 17.1
79 At this time, she was currently taking Panadeine Forte, one tablet three times a day, as well as two Mersyndol tablets when she experienced severe exacerbations of pain. She also was taking Cymbalta, 60 milligrams a day, which created a side-effect of dry eyes. She continued to take Lyrica, 300 milligrams per day, and two tablets of diazepam at night. Depending on her anxiety levels, she will take Alprax, 5 milligram-tablets, two to three times per week, and she was also taking Nexium due to gastric problems from the medication.[80]
[80]Exhibit C – PCB 17.2, paragraph 7
Cross-examination by defence Counsel
80 The plaintiff agreed that she did not mention her second job in the first affidavit sworn 4 August 2011, although she had been in that position since 2008 and she was attending two to three nights a week.[81] The plaintiff replied that she paced herself over the whole week, although she was mentally and physically exhausted after work with Shell. She also stated that she mentioned the second job in her second affidavit.[82]
[81]Transcript (“T”) 43, L17-20
[82]T44, L2
81 The plaintiff further agreed that when she asked her employer at Shell to reduce her workload, she was not telling them about her second job at DBM as she did not think it was relevant.[83]
[83]T50, L19
82 When cross-examined about the film taken on 29 October 2012, she agreed that it showed her moving in an unrestricted manner. Further, on Monday, 17 December 2012, she agreed that it showed her leaving Shell at 5.17pm and then working at DBM from 5.31pm until 8.37pm. She agreed it was after a day where she was physically and mentally exhausted after working at Shell and that she was working in pain.[84]
[84]T103, L20-29
83 On further cross-examination, the plaintiff agreed that she did not think it relevant to put the fact of the second job in her first affidavit and it was not relevant to tell her doctors. She stated “Nobody asked me”,[85] although she had actually told Slater & Gordon, when she first went there, the fact that she had a second job.[86]
[85]T110, L21
[86]T110, L14-23
84 When asked about film taken on 12 January 2013, the plaintiff suggested that she had been rubbing her back and that her back “jumps when people touch my back”.[87]
[87]T115, L1-11
85 When questioned about her social life and a relationship she had with a man for six months commencing at the beginning of 2012, she stated that her injuries had affected her sex life and her libido, and she stated:
“I haven’t been able to sustain a personal relationship with anybody since the car accident. Nobody wants to take me on. I’ve got a bad back, neck, depression. I find it very difficult and very distressing that I can’t meet anybody. I don’t want to be by myself. I’m sick of being by myself, and nobody wants to take me on.”[88]
[88]T131, L24 – T142, L4
86 Thereafter, defence Counsel cross-examined the treating general practitioner, Dr Chan, to the effect that he was not aware the plaintiff had a second job until after her redundancy from Shell.[89]
[89]T69, L24
87 Thereafter, Dr Chan was shown videos taken on 10 December 2012, 14 December 2012, 15 December 2012 and 17 December 2012. He agreed that it showed the plaintiff moving freely and did not show any restriction of neck pain at all. When asked if that is how the plaintiff presented to him, he replied “In general, yes”.[90] When asked whether she was physically capable of full-time employment, he stated:
“No, I don’t necessarily agreed with that.
… There’s a number of factors. I guess one is the fact that she does experience pain … .”[91]
[90]T70, L14
[91]T70, :23-28
88 In addition, he considered that stress and anxiety were factors affecting her employability.[92] He agreed it would have been useful information to know that after finishing work at 5.00pm, she went straight off to another job two to three nights a week.[93]
[92]T71, L4
[93]T72, L9
89 In re-examination, Dr Chan stated that prior to the accident, there had been no regular complaints about work stress.[94] He also stated that her coping capacities had been substantially affected since the car accident and would fit with the clinical picture that he had seen.[95] He was then asked whether he regarded the plaintiff as having an unimpaired earning capacity, to which he replied he did not feel that she had an unimpaired earning capacity.[96]
[94]T79, L15
[95]T79, L25
[96]T81, L15
90 Defence Counsel then cross-examined medico-legal consultant psychiatrist, Dr Nathan Serry.
91 Dr Serry agreed that he was reliant on the accuracy of what he was told.[97] He also agreed that at no point did the plaintiff tell him she had a second job, and that it would have been very useful information to know.[98] However, he did not agree necessarily that she was being less than honest; however, he did agree that it was a possibility.[99]
[97]T150, L6-9
[98]T151, L16
[99]T151, L18-26
92 Dr Serry took a history that the plaintiff “continues to struggle with work and said she’s not coping”.[100] He did not know that therefore he could draw the inference that she was mentally and physically exhausted by 3.00pm.[101]
[100]T152, L8
[101]T152, L24
93 Dr Serry also agreed that matters such as ability to go out and enjoy oneself were important.[102] He also agreed that he did not have a history that the plaintiff was being bullied by an overbearing supervisor prior to the injury, and that such information would have been useful.[103] Dr Serry agreed that without the extra information that he described as having been valuable, that she was, nonetheless, intermittently depressed ever since the accident and had symptoms consistent with a moderately severe PTSD.[104]
[102]T154, L24
[103]T158, L25-31
[104]T159, L8-12
94 Dr Serry also agreed that if surveillance film was at odds with examinations conducted by medical practitioners, that that would also be useful information.[105]
[105]T161, L8-17
95 Dr Serry also stated that the plaintiff said there had been no relationships since a broken engagement in the 1990s.[106] Dr Serry then stated that some of the things that were being put to him were particularly important and some of the things were essentially neither “here nor there” in terms of their relevance.[107]
[106]T163, L6-9
[107]T163, L22-24
96 By way of explanation, he said:
“… Whether they’re able to go out for dinner and have unrestricted fun would be important to know. If they go out for dinner and it’s a painful experience but they go out because they feel compelled to or they’re trying to overcome some isolation, that’s an entirely different story.”[108]
[108]T163, L27 – T164, L1
97 Dr Serry was then asked specifically:
“What about the two boyfriends since the motor car accident?”
He replied:
“No, that would have been useful information to know. I can’t make any specific comment about that because I don’t know about the duration or the success of those relationships. I don’t know what she understood by my questioning about the relationships that she’d had. Perhaps she was talking about serious and longer-term relationships and not shorter-term relationships. So I can’t make any definitive comment there.”[109]
[109]T164, L12-20
98 When asked whether it was a picture of somebody who is exhausted at the end of the day, and goes home and puts heat packs on their neck or back, he replied:
“… It depends on the level of engagement, enthusiasm and pleasure obtained from the experience, and I can’t make any more comment than that because I don’t have specific information about it.”[110]
[110]T164, L24-30
99 Dr Serry then commented on a number of DVD video-surveillance films which he had looked at, being five separate DVDs of film covering dates from October 2012 until January 2013.[111] He noted that:
“… your client appears by and large to move in a relatively unrestricted fashion. Her walking did not appear to be significantly compromised and whilst she was on occasion carrying bags and on one occasion bending forward into the boot of a car, she was not involved in any activities which I would consider to be heavy duties.”[112]
[111]Exhibit U – PCB 168.1
[112]Exhibit U – PCB 168.1
100 Dr Serry also noted that the plaintiff appeared to be driving a car in an unrestricted fashion.
101 Dr Serry also noted, in this report dated 29 January 2013, that the plaintiff’s supplementary affidavit, in paragraph 15, described the casual job at DMB Market Research doing data entry. She described the work as undemanding, and she performed the work seated and takes a pillow and heat bag with her. He considered that this information was not inconsistent with the information provided to him at his most recent assessment.
102 Finally, Dr Serry stated that the surveillance material, in his opinion, reveals the plaintiff to be undertaking activities which are not inconsistent with anything that she described to him at her most recent presentation and, as such, he maintained the opinion and diagnosis previously expressed in his reports.[113]
[113]Exhibit U – PCB 168.2 and T167, L17
103 Finally, in cross-examination, Dr Serry stated that the film did not help him in his position as a psychiatrist one way or the other.[114]
[114]T169, L12
104 By way of explanation, Dr Serry stated:
“The key issue – the key complaint that was made to me was in fact of pain. 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.”[115]
[115]T169, L21-25
105 In re-examination, with respect to the second job, he stated:
“Her description of the second job, when it did come up, was that it was essentially something that was easy to manage. She wasn’t under a great deal of pressure. She could essentially do it at her own pace. I think she said something about being to sit in a comfortable environment. In comparison to the job that I understand that she had at Shell previously, it was significantly fewer hours and far less demanding.”[116]
[116]T182, L21-29
106 Defence Counsel then cross-examined the treating psychiatrist, Dr Naomi Elliott. Dr Elliott agreed that she did not become aware that the plaintiff had a second job when she was writing to Shell to get a reduction in workload.[117] It was Dr Elliott’s belief that the plaintiff had started working as a telemarketer after ceasing work with Shell.[118] Further, she agreed that the claim that the plaintiff was physically and mentally exhausted by 3.00pm in the afternoon whilst working with Shell was consistent with what she was telling Dr Elliott. Not only was she physically and mentally exhausted by 3.00pm, her pain levels were another big factor.[119] She agreed it would have been important to know about the second job.[120]
[117]T192, L27
[118]T193, L8
[119]T194, L13-17
[120]T195, L12
107 Dr Elliott also agreed that when the plaintiff had been sitting in front of her at consultations, she had grimaced[121] and if the doctor saw her performing movements that effectively contradicted her description of restriction of movement, that would be important, and it would throw in doubt the extent of her problem.[122]
[121]T196, L26
[122]T197, L1-7
108 Dr Elliott agreed she had been told by the plaintiff she had met a gentleman through a single’s club and had spoken about a brief relationship she had had through that club. When Dr Elliott related about social restrictions with the plaintiff’s group of girlfriends, she asked whether Counsel wanted further information about the relationship she had formed, and the reply was “no”.[123]
[123]T197, L30 – T198, L2
109 Further, Dr Elliott agreed that in her report of 21 August 2012 when she recommended that the plaintiff only be working a maximum of fifteen hours a week, it was not in the context where she knew she was working full-time at Shell and probably another twenty hours in a part-time job.[124]
[124]T199, L17-30
110 Dr Elliott further agreed that she had seen 45 minutes of DVD surveillance film, and in her letter of 1 February 2013, she had stated:
“In my opinion this surveillance provided neither proves nor disproves that … [the plaintiff] suffers from chronic pain.”[125]
[125]T200, L21-27
111 Further, she stated:
“I wouldn’t agree that it was unrestricted movement. From what I recall of the video, she was seen to be moving not particularly quickly, sort of perhaps – I would say more on the slow side and filmed in a supermarket having a rest, resting her basket at one stage, you know, perhaps due to pain and fatigue – hard to know – and again that footage was from behind, not really showing her face.”[126]
[126]T201, L4-11
112 In re-examination, Dr Elliott recited the fact that the plaintiff had indicated on one occasion that she was working in a casual job but she had a perception that she had no job. By way of explanation, Dr Elliott stated:
“Well, I guess she doesn’t really consider it a job. She considered her job at Shell very important and thought of herself as being at sort of a corporate level of work and that she had lost that, so she’d lost her job and didn’t consider her casual work at all important … .”[127]
[127]T206, L5-212
113 Finally, Dr Elliott was asked:
“Taking the total picture, from your professional standpoint, what is your view about her earning capacity?”
to which Dr Elliott replied:
“Well, as I understand it she’s working varying sort of hours in her telemarketing job. She struggles to work more than 10 hours a week. [She] [e]xperiences more pain. [It] flares, so more severe pain, which affects her mood. My perception is that she can work about 10 hours a week. More than that is worse for her physically which has consequences emotionally. And I think that’s unlikely to change because of her diagnosis of central sensitisation.”[128]
[128]T207, L23 – T208, L2
114 Thereafter, defence Counsel cross-examined the treating psychologist, Mr Guy Coffey. Mr Coffey considered that the plaintiff’s ability to cope at work was important because a psychologist needed to understand how a condition affected a person’s functioning. It’s a very concrete measure of how they are.[129]
[129]T116, L25-29
115 Mr Coffey agreed that the plaintiff had not told him prior to being retrenched at Shell that she was working two jobs.[130] He agreed he would be interested in how she would have been coping with that work.[131]
[130]T218, L21
[131]T219, L3-4
116 Mr Coffey was then taken to his clinical notes to the following effect:
“Said at the time of the motor vehicle accident was stressed at work. Supervisor was putting pressure on her and bullying her. This woman was later moved due to the behaviour.”[132]
[132]T220, L29 – T221, L1
117 When it was put to Mr Coffey that this history was not part of his ultimate conclusion, he stated:
“My conclusions are based on this: that she was coping adequately at work at the time – so she was working productively at the time of the accident; that she wasn’t suffering from the kind of psychological problems that she presented to me with; that she’s basically a capable worker, and subsequent to the accident she ceased to be able to work at the same level of productivity and that she developed a range of psychological problems.”[133]
[133]T221, L13-21
118 Mr Coffey also agreed that he had not been told about the second job of two to three days a week, two to three hours a night.[134]
[134]T224, L2
119 When pressed on the history of the second job, Mr Coffey stated:
“… I would want to say that it’s certainly true I would have liked to have known that she had that second job and the period over which she had it, but before I drew significant conclusions from that, I would need to know a little bit about how she’s actually coping in that job and the nature of the work. So she could have been – if for example she’s going to this job full of high spirits and with plenty of energy and accomplishing it very easily then that would be contrary to what my assumptions have been. … [135]
[135]T233, L28 – T234, L6
… I’d need to know how she is functioning in this other work that I didn’t know about. I mean, obviously I give considerable weight to what I directly observe when I’m with her. I’ve spent a lot of time with her now.”[136]
[136]T233, L16-20
The sessions would take one to one-and-a-half hours and –
“… it was a constant feature of her presentation. She’d be moving around in apparent discomfort throughout the sessions … .”[137]
[137]T233, L24-26
120 Further, Mr Coffey stated he did not see any evidence of the plaintiff having a personality of a kind that leads her to somaticise, to have hypochondriacal problems.[138] When it was put to him that perhaps her condition is not as severe as she is presenting to the clinicians and that the plaintiff wants the clinician to accept that she is in a lot of pain, Mr Coffey replied:
“… it’s possible, I suppose, but it would go contrary to all my observations.”[139]
[138]T236, L3-5
[139]T236, L17-018
121 When it was put to him that the second job is a piece of information that is lacking, he stated:
“… I don’t have any real doubt she’s suffering from depression and post-traumatic anxiety. … .
… and if she was in fact very capably performing a second job without any of the features that I’ve assumed have been affecting her first job, then I would have to modify my conclusions, not about her psychiatric state but the functional consequences of that state.
…
… [and] her prognosis for returning to work would be probably better and maybe I’ve achieved a bit more than I thought I had.”[140]
[140]T237, L11-13; L15-20; L22-24
122 Overall, Mr Coffey stated:
“The sense I got was – and this is often what we see – is a kind of snowballing effect. So her pain starts to affect her ability at work. She gets anxious about that. She is experiencing pain at work. That affects her mood. We know that depressed people feel pain more intensely. So as her mood deteriorates, so her pain becomes more intense. So you get this – typically what one sees is this kind of cascading effect over time, and even if her work wasn’t significantly compromised immediately after the accident, that’s not inconsistent with the accident leading to the subsequent problems.”[141]
[141]T238, L3-13
123 In re-examination, Mr Coffey was taken to his diagnosis of approximately one month prior. He stated:
“She currently suffers from post-traumatic anxiety and, insofar as it’s possible to separate the two, more generalised anxiety relating to the chronic pain and uncertainty surrounding steady employment and lowered mood often approaching major depressive episode.”[142]
[142]T239, L24-29
124 At that stage, he saw the need for continuing treatment of the type that has already been documented.
Conclusions
125 Having seen the plaintiff in the witness box and being cross-examined by experienced counsel, I consider that she was doing the best to tell the truth. I do, however, think there is some inconsistency with the surveillance shown and her presentation to the various clinicians, which I find hard to reconcile. However, I also find that prior to the accident, she was a well-motivated individual who was proud of her corporate life with Shell and made every effort to remain in that employment subsequent to her injury. I also find that her injuries were a significant element in her being retrenched from Shell and have had a marked effect on her ongoing employability.
126 Finally, the ultimate opinion of Mr Coffey I find the most acceptable, given the persistent and experienced cross-examination of the psychological witnesses. It was put to him in re-examination as follows:
“… Assuming that the two relationships that were mentioned to you have been described by her as both failing, in her perception because of the consequences upon her of the car accident – assuming that she was, in her words, a passionate golfer with her own custom-made clubs and has been unable, because of this accident, to resume that golf – assuming, thirdly, that prior to this accident there had been no medication at all for either pain or any anxiety-driven symptoms and that she’d had no treatment, psychological or psychiatric, and that before the accident she had complained to the doctor on some occasions regarding work stress but has told this court that if uninjured she would have gone on coping with those stressors at work – assuming also that since the accident the general practitioner tells us there’s been a raft of ongoing medication for pain and anxiety-driven symptoms, that the psychiatrist has told us that she’s on Cymbalta 60 milligrams per day, diazepam two to four per day by two milligrams, Xanax .5 of a milligram, Lyrica 75 milligrams twice per day and 150 at night. I’d like you also to assume for the moment that the second job involved, according to the evidence, her sitting at a telephone interviewing and ticking boxes doing market research where she could stand, still with the headset on, and stretch and move and resume her sitting – and she’s doing that for perhaps a couple of hours at the most. Assuming that she’s doing that work but there’s no evidence that she likes the work, but the evidence rather that she’s doing that for perhaps a couple of hours at the most. Assuming that she’s doing that work but there’s no evidence that she likes the work, but the evidence rather that she’s given us is that she does that work out of economic necessity and that’s why she’s done it. I’d also ask you to assume on this topic that there’s evidence that she’s told her psychiatrist that she’s doing casual work only and that she feels ashamed that she has no job, that she described her casual work in those terms to the psychiatrist. On those assumptions and if they are correct, do any of the matters to which your attention has been drawn today affect the diagnosis that I took you to or your prognosis for her further treatment?”
To which Mr Coffey replied:
“If all those assumptions are correct, no, I think my report is accurate.”[143]
[143]T240, L21- T241, L30
127 In my view, the factual bases put to Mr Coffey in re-examination have been proved to my satisfaction by the plaintiff and, accordingly, I find that she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder by way of a Chronic Pain Syndrome; alternatively, PTSD and/or post-traumatic anxiety, and the consequences, in my view, satisfy the meaning of “severe” as defined in Mobilio.[144]
[144]Supra
128 Leave will be granted to the plaintiff to issue proceedings at common law for damages arising out of the motor vehicle accident on 30 May 2009.
129 I will hear the parties as to any consequential orders.
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