Cozzolino v TAC
[2012] VCC 922
•9 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03713
| NADIA COZZOLINO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| MULTICARE PTY LTD | Second Defendant |
| and | |
| AUSTALIAN HOME CARE SERVICES PTY LTD | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 July 2012 | |
DATE OF JUDGMENT: | 9 July 2012 | |
CASE MAY BE CITED AS: | Cozzolino v TAC & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 922 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.135A Accident Compensation Act 1985 – s.135AC Accident Compensation Act – whether the serious injury consequences were known by the plaintiff within three years of issue of the application – R Morris & Joan Rawlings Buildings and Contractors v Rawlings [2010] VSCA 306; Papercorp Pty Ltd v Nicolaou [2006] VSCA 143; AEP Industries Australia Pty Ltd v Mahmoud [2007] VSCA 203.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr G Worth | Clark Toop & Taylor |
| For the First Defendant | Mr I McDonald | Solicitor for the Transport Accident Commission |
| For the Second Defendant | Mr J A O’Brien | Wisewould Mahony |
| For the Third Defendant | No appearance | Thomsons Lawyers |
HIS HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the second defendant from 1996. The plaintiff’s application was not issued until 28 April 2008. Thus, prima facie, the plaintiff’s application is statute barred by reason of s.135AC(a) of the Act. However, the plaintiff claims that her “serious injury” incapacity arising from injury did not occur until after 28 April 2005. As such, she claims to fall within the exception prescribed by s.135AC(b).
2 The plaintiff has suffered an autoimmune disease known as pemphigus vulgaris (“pemphigus”) arising out of her employment. The body function said to be lost or impaired is the immune system.
3 In addition, the plaintiff claims to have suffered a permanent severe mental disorder in the nature of anxiety and depression. The application is thus brought under sub-ss.(a) and (c) of the definition of “serious injury” as referred to in s.135A(19) of the Act.
4 The plaintiff, her treating dermatologist, Dr Belinda Welsh, and her treating general practitioner, Dr Hana Balvin, were called to give evidence and be cross-examined. In addition, various medical and psychological reports, clinical notes and radiological reports were tendered into evidence. I have read all the tendered material. I shall not refer to all this material in the course of this Judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issue in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of her evidence which I have relied upon in coming to the conclusions referred to in this Judgment.
5 The statutory scheme set forth in the Act, which prescribes and regulates applications of this nature, is well-known and it is unnecessary for me to revisit the various relevant sections, save for s.134AC.
Background and Injury
6 The plaintiff’s father suffered a serious motor vehicle accident in July 1986, as a result of which he had multiple debilitating injuries, including a severe brain injury. At the time the plaintiff was fifteen years of age and a student at University High School. She had strong academic results, an interest in music and drama, and a wide circle of friends. As a result of his injuries, the plaintiff’s father required extensive care. That care was provided by the plaintiff and, to a lesser extent, her mother and other paid carers.
7 In 1988, her father was involved in another motor vehicle accident and his care needs became more extensive. It is accepted the plaintiff’s father was severely physically and psychologically incapacitated. The care was funded by the Transport Accident Commission (“the TAC”) and implemented through the defendant.
8 By 1988, the plaintiff was absent from school regularly to look after her father. Her enrolment was terminated that year. She was paid by the defendant as her father’s carer, initially 25 hours per week, then 35 hours per week and eventually 40 hours per week. By the late 1990s, she was the sole paid carer. There is no issue she was, for the purposes of the Act, an employee of the defendant.
9 It is clear that, at such a young age, the plaintiff was placed in a role which was physically demanding and very stressful.
10 The plaintiff’s father died in November 2005. This was a particularly distressing event in the plaintiff’s life, in particular, given his death was caused by pneumonia related to the aspiration of food. Some time previously, his dentures had become broken and there was a delay in the provision of new dentures by the TAC. She is of the view that this failure was causally connected to her father’s death.
11 According to her affidavit,[1] after some years of caring for her father she began to develop symptoms of both physical and psychological disorders. She began to suffer skin disorders, and in 1994 saw a dermatologist, Dr Philip Lane, with alopecia. This was treated with scalp injections. In the 1990s she consulted a general practitioner, Dr Bosch, with alopecia and stress-related psoriasis. She was commenced on an anti-depressant, Prozac, over a period of approximately twelve months. Both her stress and her skin condition worsened and, according to a report of The Royal Melbourne Hospital,[2] she attended the Dermatology Clinic on 24 November 2003. She had extensive physical complaints, including ulcers, blisters over her trunk and other areas, and a diagnosis of pemphigus was made. This condition is described in the report of Dr Welsh, her treating dermatologist,[3] and is rare and severe autoimmune disease. If untreated and widespread, there is a significant mortality rate. Its exact cause is unknown but stress is known to be a significant trigger and exacerbating factor. There is no issue in this application that this disorder is causatively related to the plaintiff’s employment with the first defendant.
[1]PCB 7
[2]PCB 120
[3]PCB 118a
12 At The Royal Melbourne Hospital the plaintiff was placed on significant doses of Prednisolone and a range of other drugs.[4] Her treatment at the hospital was set forth in its report.[5] The medication, in particular, the Prednisolone, was reduced to some extent over the next year or so. Because of the use of Prednisolone, she developed a Cushingoid appearance that is, swelling to the face and other areas of the body.
[4]PCB 120
[5]PCB 120-121
13 Despite the very significant symptoms the plaintiff was suffering, as a result of the disease, she remained in full-time care of her father.
14 In March 2007, the plaintiff prepared a document known as “Nadia’s Story”.[6] She prepared it to set out the effect upon her of the disease and to provide it to various doctors she saw for the purpose of treatment and consultation relating to legal proceedings, to avoid having to regularly repeat the history. She affirmed the contents as accurate. She described the situation in 2003 and 2004 as follows:
“Since my father’s accident in 1986 I had lived at home and worked day and night non-stop 24 hours a day. I was looking after my father and helping my mum, even though I was only ever paid 40 hours of work. I had never been on holiday and had a day off or taken even one day sick in the whole time which was almost twenty years in total. In 2004 I could not take any more stress and started to feel very ill. I was still caring for my father one Sunday afternoon and noticed two small blisters appeared on my chest. I just thought it was the same rash like bumps I had experienced before, until I noticed they would not heal. I went to the local medical centre in Coburg [Harding Street Medical Centre] and they had absolutely no idea what I had so on 24 November 2003 they sent me to The Royal Melbourne Hospital Special Dermatologist Department to get a biopsy from my armpit as by this time it had spread quite dramatically and was all over my torso, back and affecting my mucous membranes to the point where I could not eat, have sex or go to the toilet without excruciating pain. I still can’t have sex as the disease affects the mucous membrane. Eating is still a major issue and I can only have soups, no hard foods such as toast, biscuits or crackers. I will never forget the day that the dermatologist, Dr Dolanitis, called me at home on 27 November 2003, he told me I had a bad disease that could not be cured and to come in for a meeting with Dr George Varagos. I was diagnosed with a rare potentially fatal stress-related autoimmune disease called ‘pemphigus vulgaris’. I was told by doctors and the head of the Dermatologist Department at The Royal Melbourne Hospital, Dr George Varagos, that it was incurable and that he was quite shocked to see this disease in such a young person like myself. He also went on to inform me that it was commonly found in people in the seventies and eighties age group. I proceeded to explain my home and life situation and he then understood why I had the insidious disease. Dr Varagos told me that the best thing to do was to move out of my parents’ house which was a definite stress-causing factor and creating the pemphigus flare-ups and dramatic spreading all over my body. By this time I was covered in blisters that were spreading rapidly. Dr Varagos told me that I needed to take Prednisolone but I had heard about how damaging and bad side effects of cortisone were and refused this treatment for a few days. I then went back to see him and he told me that if I did not start taking the Prednisolone tablets that I would die. The doctors put me on extremely high doses of cortisone and immune suppressing drugs to try and shut down my immune system. While I tried to recover from my horrible skin eruptions, I did in fact move out of my childhood home, but it had put too much pressure on my mother so even though I had just bought a house with my partner in Kealba, I’d spend most of my time helping my mum while struggling with my own potentially fatal illness. Dr Varagos asked me to see a psychiatrist and put me onto Royal Melbourne Hospital social worker, Miss Silvana Petrevski … She tried to help me with the stress but to no avail … She was unable to offer assistance and she was not qualified to help. There were times when pemphigus got so bad that I thought I was going to die. I still feel like that to this day … .”
[6]DCB 99-107
15 It would appear that the course of the disease waxed and waned over the period 2003 to 2005, but was always present. On 12 April 2005, the plaintiff attended for the first time upon her current treating general practitioner, Dr Balvin. According to the clinical notes,[7] there was reference to the diagnosis of pemphigus and to the plaintiff feeling depressed. Dr Balvin discussed seeing a psychologist. She attended again on 10 May 2005 and a prescription for various medications provided and it was noted that she had reactive depression and was referred to a psychologist for counselling. At this time, she was referred to Dr Welsh, whom she saw on 11 May 2005. In her evidence, Dr Welsh described the plaintiff as being very unwell at the time. She presented with extensive symptoms including crustings and erosions covering all of her scalp, 70 per cent of her trunk and 50 per cent of her limbs. According to Dr Welsh, these physical symptoms would have built up over months. The dose of Prednisolone was immediately and substantially increased. Eventually, Dr Welsh arranged for the plaintiff to be treated by Professor Prince at St Vincent’s Hospital with a drug used in the course of chemotherapeutic treatment, Rituximab, which affected the immune system. According to the evidence of Dr Welsh, this treatment was successful and by September of that year, the disease was brought under some control. That situation has been maintained at the present time, with flare-ups from time to time.
[7]Exhibit C
16 According to a letter written by Dr Welsh to a general practitioner of 11 May 2005, she described the plaintiff as “very well-educated about her disease”.[8] According to a clinical note of The Royal Melbourne Hospital of 26 February 2004,[9] the plaintiff at that time was taking a significant range of medication, including Prednisolone, Imuran, Nicotinamide and Erythromycin. According to the evidence of Dr Welsh, this would indicate that at the time her condition was substantial.[10]
[8]Exhibit 1
[9]part of Exhibit 1
[10]T 71, L15
17 In the course of her evidence, the plaintiff said that had her father lived, she would have continued working in the capacity of his carer in the months, even years after his death. She said up until the time of her father’s death, whilst he was not happy and suffering significantly from the symptoms of the disease, she did not think that she would be unable to work into the future.[11]
[11]T 16
18 In cross-examination, she said the following:
Q:“Now at the present time do you consider that you would be able to work in let’s say to start with, a carer’s job?---
A: No.
Q:Or any other job which would be available in the community, either on a casual, part-time or full-time basis that is open to any member of the community to apply for?---
A:I don’t think I’m ready for anything at the moment.
Q:That has been the situation now for a long time hasn’t it?---
A:Yes.
Q:At least since you were diagnosed with your condition in 2003 is that right?
A:Yes.”[12]
[12]T 54, L15-24
19 In the course of her re-examination, the following exchange took place:
Q: “And then when he [the plaintiff’s father] died, what effect did that have on your psychological state?---
A: I spiralled downward and I got very very low, very – I was extremely unwell.
Q: And what effect on your capacity to work do you say of that experience of being in hospital watching your father in the week before his death, and then in his actual death? What effect did that have on you psychologically in terms of your capacity to work?---
A: I was still working at the time.
Q: And once he died what effect did the – I think you described your word as trauma, or traumatised – what effect did the fact of your father’s death – in the week before his death – what if any effect did that have on you psychologically in terms of your capacity to work after that time?---
A: I was still working but after that – I couldn’t. I mean …
Q: Why couldn’t you work after your father’s death?---
A: Well I went to see the doctor, and she put me on Lexapro and I was – I was – you know, very depressed.
Q: And in fact you were put on Lexapro the day after your father’s death?---
A: Yes.
Q: And since that time have you been able to work?--- (no audible response).
Q: Since your father’s death?---
A: Yes I – I could – I could work, but I haven’t.
Q: When did you first realise that you were going to be unable to work?---
A: When all the doctors told me I was not capable for that. I didn’t even think about not being [able] to work.
Q: Do you remember which was the first psychiatrist you saw that gave you that information?---
A: The first psychiatrist I spoke to was – I think his name was Entwisle, John Entwisle or something, I think he was in Richmond. He was the first psychiatrist I spoke to and he told me at that point that I wasn’t well and not – and not fit to work … .”[13]
[13]T 55-56 – the plaintiff first saw Dr Entwisle in June 2006
20 The plaintiff was certified by Dr Balvin, her general practitioner, as being unfit for all employment from January 2006 and through to the present time.
21 According to her affidavit sworn 27 August 2009, the plaintiff said:
“I reiterate that it was not until there had been a failure to achieve progress through the use of further treatments and in particular the failure of the chemotherapy Rituximab treatment to lead to remission of my pemphigus vulgaris condition that it became evident to me that the ongoing symptoms to which I have referred would remain with me in the longer term and most likely permanently.”[14]
[14]PCB 22
22 I was informed by the parties that in respect of her employment after October 1999, a “deemed serious injury certificate” was granted pursuant to s.134AB(15) of the Act. There is no issue in this application that the symptoms suffered by the plaintiff do meet the definition of “serious injury” as prescribed by s.135A, but the real question is whether the plaintiff’s application pursuant to s.135A was issued within three years after the date that that incapacity became known.
Medical Evidence
23 I have in part referred to the evidence of various of the medical practitioners. I shall not refer to all of the medical evidence, which is substantial, but rather those aspects of the reports which are relevant to the matter in issue.
24 According to the various reports of Dr Stella Kwong, the plaintiff’s treating psychiatrist, she said that the plaintiff had developed a severe panic illness as a result of her caring for her father over the period 1988 to 2005. She concluded that the plaintiff could not be employed in any meaningful manner because of her physical and psychological restraints, although in her report of 13 July 2009 she said that the plaintiff’s mental state had improved somewhat after the birth of her daughter in December 2008. In her final report of 16 September 2011, she was of the opinion the plaintiff suffered an Adjustment Disorder with Mixed Anxiety and Depression as a result of her employment as a carer for her father. She thought the illness was stabilised.
25 According to the various reports of the plaintiff’s treating practitioner, Dr Balvin, she first saw the plaintiff on 12 April 2005. I have already referred to the findings in the first examination. She said:
“The injury sustained on 22 November 2005 caused deterioration in her depression and she could not perform any duties at this stage and has not been able to return to any form of work until now.”[15]
[15]Report of 10 April 2006, PCB 78
26 The “injury” referred to is said by Mr Richards to be the death of her father.
27 In a report of 25 March 2008,[16] she said that over the last two years there had not been any significant improvement in the plaintiff’s psychological wellbeing. She had continued to experience “severe anxiety, panic attacks, depression, insomnia, tiredness and difficulty to [sic] concentration, sustained tasks, lack of motivation”. She said that the plaintiff was not ready to return to the workforce and that she was not psychologically well enough to deal with stresses of daily life, and especially those of a workplace. She said the severity and chronic nature of her depression and anxiety indicated that her prognosis for a return to work was poor. In her last report of 25 June 2002,[17] she noted the plaintiff continued to report the same psychological symptoms as previously and that she was receiving ongoing psychotherapy from Dr David Morell, her current treating psychologist. She thought the situation was unlikely to change.
[16]PCB 81
[17]PCB 86b
28 In the course of her evidence, she said that in November 2005 she prescribed Lexapro, an anti-depressant, within several days of the death of her father, because her depression was getting worse. She said that by January 2006 the plaintiff was unable to work as her condition was severe. She said she discussed this with the plaintiff in January 2006 but that that was not an issue in the previous consultations. She said when she first saw the plaintiff on 12 April 2005 she was depressed.
29 The plaintiff first saw Ms Bridget Curran, psychologist, at the referral of her general practitioner in May 2005. In her report of 9 March 2006,[18] she noted the plaintiff was diagnosed with pemphigus in 2004 and that in July 2004, the plaintiff moved from the family home in an attempt to minimise the stress associated with caring for her father. At the initial consultation, the plaintiff was tearful and upset and reported symptoms of anxiety and depression. She further said she had been experiencing panic attacks. She said that she had experienced these attacks when dealing with the TAC. She said:
“Since the diagnosis of her condition,[19] Nadia reports that she is constantly fearful and preoccupied with the thought that she will experience another flare-up in her condition and she will once again break out in large ulcers. Nadia is also concerned that her inability to manage her anxiety will exacerbate her condition. The impact on her health the treatments she receives for the condition also cause her to be anxious regarding her health in the future. At times, Nadia reports that she experiences a sense of hopelessness that her physical condition will improve.”
[18]PCB 94
[19]The condition was first diagnosed in 2003
30 Ms Curran diagnosed the plaintiff as suffering an Adjustment Disorder with Mixed Anxiety and Depression.
31 Subsequently, the plaintiff’s psychological treatment was continued by Dr David Morrell. In his report of 18 November 2007,[20] he said:
“Nadia provided care to her father 24 hours a day, seven days a week. Nadia first acknowledged the physical and emotional signs of her workplace injuries in 2004 when she attended the Harding Street Medical Centre and was subsequently referred to The Royal Melbourne Hospital, describing symptoms of stress, panic attacks, depression and skin blisters.”
[20]PCB 103
32 He diagnosed the plaintiff as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said that he did not believe that the plaintiff had any current work capacity and was unable to return to work as a carer.
33 According to the evidence and reports of Dr Belinda Welsh, the treating dermatologist, after the infusion of the drug Rituximab, the plaintiff’s condition stabilised. As a result, there was a reduction in her need for Prednisolone, and the substantial Cushingoid side effects, which had been present when she first saw the plaintiff, had subsided. In addition, because of the long-term use of Prednisolone, the plaintiff had developed osteopaenia and osteoporosis in her lumbar spine and femoral neck. She was at risk of declining bone density and of fractures in those areas. Dr Welsh said the condition was likely to wax and wane, but was under significant control after the infusion of Rituximab. She said the plaintiff had a partial capacity for work.
34 According to a report of Professor Lorraine Dennerstein, consultant psychiatrist, of 24 June 2009,[21] she referred to the plaintiff and her now husband moving away from the family home in 2004. She said:
“Prior to leaving the family home she said she was aware of being stressed, depressed and tearful. She had anxiety attacks. She had been aware of panic attacks by the mid-1990s. She was tearful a lot and would be in her room crying for days at a time and not leave her room except to do the tasks needed for her father. She said she felt suicidal while she was living at home. She said she didn’t carry this into action out of concern for her mother. She said a lot of her stress came from her difficulties of dealing with the TAC. She had low appetite and was only 43 kilograms because of the stress. She had early and middle insomnia. These symptoms continued in the year after her skin condition was diagnosed. She continued to be anxious about her parents and very anxious about her illness. She was also very ill physically.”
[21]PCB 128
35 Professor Dennerstein noted that the plaintiff’s mental health deteriorated after her father’s death.
36 Professor Dennerstein concluded:[22]
“Your client was employed from late 1998 as an attendant/personal carer to her father by TAC. She has documented that by 1990 she developed burning skin rashes, loss of clumps of hair, anxiety, depression, constipation and stress-related psoriasis. By 1994 she was receiving cortisone injections by dermatologist, Dr Phillip Lane, for alopecia. In the 1990s, she was being treated by Dr Bosch for depression and was prescribed Prozac. Thus this would indicate the onset of psychiatric disorders and associated psychosomatic skin disorders and alopecia associated with the stress of looking after her brain-damaged father. She had no history of any psychiatric disorder prior to her father’s injury.”
[22]PCB 138
37 A similar history was provided to Dr Epstein, psychiatrist, in 2009.[23] He said further:[24]
“After being under reasonable control for a twelve-month period her symptoms flared-up around Christmas 2004 when she cut her finger and contracted a cutaneous infection. After this occurred the disease became more difficult to control and she required Prednisolone, 60 mg. By this time she was suffering from anxiety and depression, often crying for days at a time. She did not leave the house as she did not want to be seen in public. She felt disfigured by her disease and the weight gain associated with the Cortisone usage … .”
[23]PCB 146-147
[24]PCB 148
38 He said the death of her father in November 2005 exacerbated her depression. When he saw the plaintiff in 2009, he said she was suffering from a Panic Disorder with agoraphobia and a Chronic Adjustment Disorder with Depressed Mood.
39 On behalf of the defendants, the plaintiff was examined by Dr Timothy Entwisle, psychiatrist, in 2006 and 2007. He concluded the plaintiff had an Adjustment Disorder with Depressed Mood and Anxiety. He said that she was unfit for all work when he saw her due to the combination of physical and emotional psychiatric factors. He said she was depressed, highly vulnerable and prone to recurrence of her symptoms. According to the plaintiff’s evidence, it was not until she saw Dr Entwisle that she was first told that she was not fit for work.[25]
[25]T 56, L 26
Authorities
40 The onus lies upon the plaintiff to establish that her application was made within three years after the date the “serious injury” incapacity became known.[26] The plaintiff’s application is barred if the incapacity arising from injury was known before 28 April 2005.
[26]Morris & Joan Rawlings Buildings and Contractors v Rawlings [2010] VSCA 306 at [31]
41 In Morris & Joan Rawlings Buildings and Contractors v Rawlings,[27] the Court of Appeal said:
“… It is sufficient to bar the claim if the respondent knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that the applicant/worker (in this case the respondent) does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.”[28]
(emphasis added)
[27](supra) at [36]
[28]see further, Papercorp Pty Ltd v Nicolaou [2006] VSCA 143 at [6]
42 In AEP Industries Australia Pty Ltd v Mahmoud,[29] the Court said:
“… The fact that a worker does not subjectively appreciate that the injury is serious until after the relevant date will not matter if the worker knew of facts that, viewed objectively, constituted serious injury incapacity. And the fact that the worker acquired the necessary knowledge of one consequence after the relevant date will not bring the worker within s 135AC(b) if the worker had knowledge of another consequence prior to the relevant date that, viewed objectively, constituted serious injury incapacity.”[30]
[29][2007] VSCA 203
[30]at [28]
43 In the present case, the plaintiff’s knowledge of the consequence, both of her physical disorder and psychological state, is relevant. It is not determinative. It is the facts of which the plaintiff was aware, prior to April 2005, viewed objectively which must be considered.
44 The regime under s.135A does not require an assessment, on the one hand of pain and suffering consequences, and on the other hand economic loss consequences. That distinction applies in respect of applications brought under s.134AB of the Act. As was said in Mahmoud,[31] a worker with the knowledge of one consequence after the relevant date will not come within s.135AC(b) if that worker had knowledge of another consequence before the relevant date, that, viewed objectively, constituted serious injury incapacity. This is a relevant factor to consider given that the plaintiff continued to work as her father’s carer, working at least 40 hours per week both before and after the relevant date.
[31]at [28]
45 It is clear that “the incapacity” referred to in s.135AC(b) means the “serious injury” incapacity. That requires an assessment of the consequences of injury, which must be at least very considerable, and more than significant or marked.
Conclusions as to the Physical Injury
46 Pemphigus is a serious and rare autoimmune disease. It has very significant physical symptoms. It is well-described in the report of Dr Welsh.[32] It requires aggressive treatment with various medications, in particular, Prednisolone, a steroid with significant side-effects.
[32]PCB 118a
47 It is clear the plaintiff developed the disease at some time prior to 2003. I accept the evidence of Dr Welsh, whom I found an impressive witness, that the course of the disease waxes and wanes. It is clear the plaintiff had a significant aggravation in 2003 when she attended The Royal Melbourne Hospital. The condition and its symptoms continued thereafter notwithstanding treatment by the dermatologists of that hospital over the next several years. The course of that treatment is well-described in the report from The Royal Melbourne Hospital.[33]
[33]PCB 120-121
48 There was a significant exacerbation again in the months leading up to April 2005 when the plaintiff attended her general practitioner, Dr Balvin, and was referred to Dr Welsh. The symptoms at that time were dramatic and grave. Both doctors conceded that the symptoms had been present for months before their respective treatment.
49 The knowledge of the plaintiff of these symptoms, and their effect upon her, is clear, not only from the reports of the various treating doctors at the time but, in particular, from the plaintiff’s “story”. It is clear from that document[34] that at and from November 2003 she was extremely debilitated by the symptoms of the disease. She described the blisters and lesions had spread all over her body to the point “where I could not eat, have sex or go to the toilet without excruciating pain …”. She said she was told by one of the doctors that the disease was potentially fatal and incurable. She was put on high doses of Prednisolone, without which she was told that she would die.
[34]DCB 102
50 I have little difficulty in concluding that the plaintiff had the requisite knowledge in 2003 at the time of this exacerbation. The symptoms were significant, severe and ongoing. On any objective view, the consequences of the disease would be regarded as very considerable. Notwithstanding these symptoms, the plaintiff maintained her employment, working long hours caring for her father. This was no doubt undertaken because of the strong familial tie. However, notwithstanding such work capacity, in my view, it was clear, on any objective view, that the symptoms reached the serious injury level.
Conclusions as to Psychological Injury
51 The question as to whether the plaintiff was aware of the injury consequences of psychological injury is more complex.
52 Mr Richards argued that it was not until the death of her father in November 2005 that the plaintiff became aware of the serious injury consequences of a psychological injury. He submitted:
· The death of her father had a significant impact upon her.
· It was not until later in 2005 that she commenced regular psychological treatment with Ms Curran and was prescribed anti-depressant medication.
· Her treatment for psychological problems before that time was modest.
· It was not until she was assessed by Dr Entwisle, psychiatrist, that she was advised that she had little, if any, work capacity because of her psychological problems.
· According to the evidence and reports of her general practitioner, Dr Balvin, her psychological disorder has caused the most substantial consequences given her physical disease is under reasonable control with medication.
· The evidence of Dr Welsh is to the effect that with appropriate medication, the control of pemphigus has been achieved and in respect of physical injury, she has a partial work capacity.
53 Again, it is necessary to consider the nature and extent of the psychological symptoms and consequences suffered by the plaintiff prior to April 2005.
54 It is clear from the reports of the various physical practitioners, that although the precise aetiology of the disease is unknown, stress is a significant contributing factor. In my view, the plaintiff was under significant stress during the years over which she looked after her father. On any view, for a person of her years to have the full-time carer of a significantly disabled parent, to the exclusion of most of the aspects of life that a young person should enjoy, is extremely stressful. She was forced to terminate her schooling, she had no social life, and was unable to pursue sporting and theatrical interests which she had previously enjoyed. Her life leading up to the death of her father in 2005 was isolated, insular and demanding. Her world revolved around her disabled father and included regular disputes with the TAC about the appropriate funding of services.
55 In accordance with her “story”:[35]
“In 2004 I could not take any more stress and started to feel very ill …”.
[35]PCB 102
56 The stress was not only related to the need to care for her father, but also as the result of the development of the physical symptoms of pemphigus in 2003. Such was the stress that she was under, even in the 1990s that she saw a local general practitioner, Dr Bosch, who, according to the history provided to Dr Epstein,[36] placed her upon Prozac for a period of twelve months. According to that history, she found dealings with TAC upsetting and anxiety-provoking. Stress symptoms were exacerbated by her dealings with the TAC to the point that in 2003 (or 2004) her partner insisted that she move out of the house and they obtained accommodation nearby. At Christmas 2004 she cut her finger, which became infected, and according to the history provided to Dr Epstein, she was suffering from anxiety and depression, often crying for days at a time. She said that she did not want to leave the house, felt disfigured by her disease and the weight gain because of the use of Cortisone.
[36]PCB 146
57 In 2003, she was advised by the doctors at The Royal Melbourne Hospital to see a psychiatrist. Instead saw a social worker over a short period, whose treatment she found ineffective. A measure of the stress that the plaintiff was under over the years 2003 to 2005 is the very fact that the physical disease commenced and the symptoms in 2005 were very substantial.
58 The passages from the plaintiff’s “story” to which I have referred, are revealing.[37] They reflect a person suffering significant, even severe, psychological symptoms as a result of the stress she was under. The histories given to Professor Dennerstein[38] and Dr Epstein also show the extent of the effect of psychological symptoms upon her.
[37]PCB 101
[38]PCB 128
59 It is clear it was not until 2006 that the plaintiff’s psychological symptoms obtained a formal diagnosis, either by Ms Curran, the psychologist, or Dr Entwisle. I further accept that it was not until then that she was told that she had limited, if any, work capacity because of psychological problems. However, in my view, and in accordance with her evidence in cross-examination (which I prefer to that given in re-examination), that had been the situation since the diagnosis of her disease in 2003. Although she did not receive extensive and ongoing psychological treatment until later in 2005, it is clear from the histories provided to the doctors and from the plaintiff’s own statement, that her psychological condition before 2005, in particular, from 2003 onwards, was sufficiently severe to warrant such treatment.
60 Again, the plaintiff was able to maintain her role as a carer for her father notwithstanding her psychological symptoms. That, however, does not preclude a finding that, objectively viewed, the plaintiff had the requisite knowledge before April 2005. It is that objective assessment, rather than what the plaintiff was told by medical practitioners, which is to be considered.
61 Bearing in mind all the matters to which I have referred, I am of the view that, when viewed objectively, the plaintiff had the requisite knowledge of her incapacity prior to April 2005. It is clear that her psychological symptoms were very substantial and any objective assessment at the time would indicate the effect upon her of the consequences was very considerable. In particular, she was living in very stressful circumstances, both because of the need to care for her father and because of her dealings with the TAC. That stress itself was sufficient to cause the physical disease. It affected her sleep, appetite and left her tearful for long periods of time, even suicidal.
62 For all these reasons, the plaintiff’s application in respect of psychological injury fails.
63 The plaintiff’s application is dismissed.
64 I shall make appropriate orders as to costs.
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