Craig v Transport Accident Commission
[2013] VCC 1038
•30 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00624
| LEANNE CRAIG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 August 2013 | |
DATE OF JUDGMENT: | 30 August 2013 | |
CASE MAY BE CITED AS: | Craig v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1038 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – serious injury – consequences of injury – whether injuries to the plaintiff’s spine were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable” – relevance of and extent of injuries sustained to the plaintiff’s spine in a later transport accident
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr G Worth | Slater & Gordon Ltd |
| For the Defendant | Mr J D Philbrick SC with Ms S Gladman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On or about 13 December 2004, Ms Leanne Craig was a passenger in a motor vehicle involved in a transport accident (“the collision”). She alleges that as a consequence of the collision, she suffered an injury to her low back and a resultant depressive illness.
2 She seeks the leave of the Court to issue a proceeding to recover damages in respect of those injuries.
3 Her right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Ms Craig must satisfy the Court that she has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application as:
“(a) serious long-term impairment or loss of a body function; or
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder”
5 In order to succeed in her application, Ms Craig must satisfy the Court that the consequences of her physical injury and/or her non-physical injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable and more than merely significant or marked”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 Ms Craig alleges that the consequences of her injury satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so. It is this issue which falls to be determined.
7 The matter is complicated somewhat because, on 8 March 2007 (a little over two years after the collision), Ms Craig suffered further injuries when she was a passenger in a second motor vehicle accident (“the second accident”).
8 In this proceeding, Ms Craig’s initial claim was that she had suffered a serious injury in both of the collision and the second accident. In the Particulars of Injury relating to both accidents filed with the Court, she identified injuries she claimed to be serious injuries as being those relating to her spine (neck and back) and a mental or behavioural disturbance or disorder.
9 About one month before the hearing, the defendant issued to Ms Craig a Certificate pursuant to s93(4)(c)(ii) of the Act whereby it certified that it was satisfied that she had suffered a serious injury in the second accident and consented to the bringing of proceedings for the recovery of damages in respect of those injuries suffered by her, but only in the second accident.
10 Accordingly, the current proceeding related only as to whether Ms Craig had suffered a serious injury in the collision.
Background
11 Ms Craig is aged forty-three. She was educated to Year 10 level, when aged fifteen.
12 After leaving school, she was employed at a local supermarket and later, in a childcare facility and in various hotels, where she worked as a cook and barmaid. She worked for more than ten years at the Royal Talbot facility caring for disabled people and attained the position of operations manager there.
13 More recently, she worked as a case plan manager and carer with an organisation known as CAST, which provided accommodation for persons with intellectual disabilities. She ceased that employment in early 2004.
14 At that time, she took over the care of her stepsister’s young baby. The mother of the child had problems regarding drugs and was unable to care for the child. Ms Craig cared for the child for a period of about eleven months.
15 Prior to the collision, Ms Craig had been diagnosed with depression. In 2003, her general practitioner was Dr Harry Hemley of the Northcote Plaza Medical Centre. His clinical notes disclose that Ms Craig was seen in relation to depression in August 2003 (at which time she was prescribed anti-depressant medication), early December 2003 and in February and March of 2004. He appears to have ceased seeing her at that time.
16 On 30 January 2004 (about eleven months before the collision), Ms Craig was admitted to The Austin Hospital. The hospital records[3] disclose that she attended at the Emergency Department with a friend after an overdose of eighteen 75-milligram Effexor tablets. The history of the presenting illness was:
“Has felt depressed for past four months. Had been seeing a counsellor and was prescribed Effexor, helped but ceased at Xmas. Family stressors, breakup of long term r/ship and loss of employment due to redundancy 4/12 ago … .
Details of history – became depressed four months ago – had multiple losses. Paternal grandmother suicide four years ago. Separated from long term partner and took redundancy package from job. Sleep disturbance, tearful and ruminates … .
Good insight into depression and need for ongoing treatment with medication. Recognises relapse caused by non compliance with anti depressants … .
Leanne able to identify stressors and factors leading to impulsive OD. Will visit her GP tomorrow and recommence on anti depressants and see her counsellor … .”[4]
[3]Defendant’s Court Book (“DCB”) 87 – 96; DCB 138 – 139
[4]DCB 88 - 92
17 The notes make a further reference to Ms Craig seeing a counsellor as well as her general practitioner at that time.[5] No evidence was led from her GP or any counsellor concerning her condition around that time.
[5]DCB 94
18 In cross-examination, Ms Craig stated she had no memory of the incident. She denied she had ever taken an overdose. She said she was not able to recall if she had seen a counsellor before late January 2004. When the details of those hospital notes were put to her in cross-examination, her only explanation was that hospital staff must have been told of these matters by her ex-partner, who was a controlling person and whose motive for providing this untrue history was to demonstrate his control over her. I do not accept that evidence. I consider it inherently unlikely. The hospital notes record that at the time, she was still good friends with her ex-partner and still shared a home with him and another friend. Those notes do not indicate that the history was obtained from any person other Ms Craig.
19 On balance, I accept that the history obtained by The Austin Hospital staff and recorded in the hospital records is likely to be correct.
20 Dr Sherman of the Barkly Street Medical Clinic saw Ms Craig in July 2004 (about five months before the collision) on two occasions. His notes are scant but it is clear that he provided a referral for Ms Craig to see Dr W Orchard, who the parties agreed was a practising psychiatrist at that time. Shortly after, she was referred to a Winsome Thomas, who the parties agreed was a psychologist.
21 In October 2004 (about two months before the collision), there was another referral given by Dr Sherman for Ms Craig to see Dr Orchard in relation to depression.
22 It was not alleged by the defendant that Ms Craig had any problems of note with her low back prior to December 2004. Rather, the defendant alleged that the first objective evidence of low-back pain was when noted in Dr Sherman’s clinical notes for 5 April 2006, some seventeen months after the collision.
The collision
23 The collision occurred on 13 December 2004. Ms Craig was a passenger in a car driven by her new partner. At that time, she and her partner were in the process of driving to Wallan in order to return the child she had been caring for to his natural mother who, by that time, had recovered from her earlier drug problems.
24 In the collision, the vehicle in which Ms Craig was travelling rolled a number of times. She was partially thrown from the vehicle and her legs had been dragged along the road. The car came to rest on its roof. Ms Craig’s partner pulled her out of the wreck. At the time she feared for her own life and also the lives of her partner and the young child.
Post-collision events
25 Ms Craig was taken by ambulance to the Northern Hospital in Epping. She had a number of lacerations and grazes to her head, knees, left leg and foot.
26 The Northern Hospital reported that she complained of marked bilateral lower leg pain and left foot pain, with a decreased range of movement of the left foot, left shoulder and upper arm. The hospital records contain no reference to any complaint of back pain.[6] In her affidavit sworn in November 2011, Ms Craig states, at that time, she also had pain in her back at that time.[7]
[6]Plaintiff’s Court Book (“PCB”) 17
[7]PCB 9
27 The plaintiff subsequently attended a Dr Ryanberg at the Plenty Road Clinic.[8] There was no evidence from him.
[8]PCB 9
28 On 15 February 2005, Ms Craig again consulted Dr Sherman at the Barkly Street Medical Centre. In his report of 18 December 2006, he stated that she complained to him at that time of knee problems and other unidentified injuries.[9] This is consistent with his clinical notes.[10] There was no note of any back pain.
[9]PCB 16
[10]DCB 718
29 At that time, Dr Sherman noted that Ms Craig was depressed, and it would seem from his notes that he referred her to a local psychological unit. His notes refer to “Darebin CHS” which I assume refers to the local community health service. There was no evidence from any person associated with that service.
30 Dr Sherman referred Ms Craig to an orthopaedic surgeon, Mr Michael Fogarty, who she saw on one occasion. No evidence was presented from Mr Fogarty although it appears that he advised Dr Sherman that continuing activity and exercises should lead to a good recovery.[11]
[11]See Dr Leder’s report – PCB 40
31 Dr Sherman continued to see Ms Craig from time to time from early 2005 until April 2007. Most of these attendances were for matters unrelated to the collision. On 16 June 2005, she complained to Dr Sherman that she still had pain from the accident, namely in her left foot, right hand and left shoulder. Again, on that occasion, no reference to the back was recorded.
32 On 3 November 2005, Ms Craig consulted Dr Sherman in relation to her Transport Accident Commission claim. It is not clear from Dr Sherman’s report or his clinical notes as to what aspect of the injuries suffered in the collision that consultation referred. On that date, she was prescribed Panadeine Forte (analgesia) medication with Somac (for gastric problems).
33 On 13 February 2006, Ms Craig requested Dr Sherman to provide her with a referral for a second opinion with regard to the injuries suffered in the collision. She was referred to a Mr Stuart Popper. No evidence was presented from Mr Popper. It is unclear as to whether she attended upon him.
34 On 5 April 2006, Dr Sherman noted that Ms Craig complained to him of lower back pain. This is the first specific reference to back pain in his clinical notes following the date of the collision. The notes indicate that the pain was referred into the buttock and the back of the thighs with leg ache.[12] He ordered a CT scan of her lumbar spine which was reported as being normal.[13]
[12]DCB 716
[13]PCB 90
35 In April 2006, Ms Craig was referred to Mr Barry Richardson for physiotherapy treatment. The referral was in respect of back, neck and shoulder pain.[14] It appears that she only saw him on one or two occasions.
[14]PCB 47
36 Dr Sherman retired from medical practice soon after. Ms Craig then saw Dr Elizabeth Leder of the same clinic from time to time until about May 2007.
The second accident
37 On 8 March 2007 (some 26 months after the collision), Ms Craig was involved in the second accident. She was again a passenger in a car driven by her partner which was involved in an accident on the Westgate Freeway near the Point Cook turn-off.
38 Ms Craig’s partner suffered injuries in the second accident, from which he died shortly after.
39 Ms Craig states that she sustained significant injuries in the second accident including injuries to her neck, back, shoulders, and fractured ribs. She also suffered a significant psychological reaction.
40 Following the second accident, Ms Craig went through a distressing series of events involving her deceased partner’s family who, she says, initially refused to accept that she was his partner and who have never involved her in any events that followed his death. At one point relations between her and the family were such that police were involved. These were in addition to her natural grief following the death of her partner. I accept that Ms Craig was very close to him prior to his death. In evidence, she described him as her “soul mate”.
41 Ms Craig consulted another general practitioner, Dr Rattray-Wood from May 2007 (about two months after the second accident), and has continued to see him up until the present time. Five reports from Dr Rattray-Wood were tendered. He recommended further physiotherapy treatment. Ms Craig was apparently resistant and took approximately twelve months to act on that advice. She had some limited physiotherapy from early 2010 but not at present. In approximately 2009, Dr Rattray-Wood referred her to a psychologist, who she saw apparently with good benefit. This appears to be Mr Steven Marchese. She ceased seeing him. The doctor reported:
“Despite my repeated requests and her verbal acceptance of my advice, she has not seen this psychologist again.”[15]
[15]PCB 55
42 In April 2010, Dr Rattray-Wood referred Ms Craig to a psychiatrist, Dr Tobie Sacks. Dr Sacks’ report of 5 November 2010 was tendered.[16] It is not clear from the evidence as to whether she has continued to see Dr Sacks since that time.
[16]PCB 28
43 Dr Sacks referred Ms Craig to Dr Terence Lim, a consultant in rehabilitation and pain medicine. Dr Lim assessed her with a view to determining her psychological readiness to actively participate in a pain rehabilitation program and recommended that she was. It appears that she was admitted to Ivanhoe Rehabilitation Hospital for one month for inpatient pain management. There was no further report from Dr Lim tendered. In Dr Rattray-Wood’s final reports of March 2011, June 2012 and July 2013, he does not refer to such inpatient treatment. There is no evidence as to how she progressed in that program.
44 In her affidavit of November 2011, Ms Craig stated that she was still an outpatient at that facility attending monthly, and had found her treatment there helpful.
45 At the time she swore her second affidavit in July 2013, Ms Craig was taking Lyrica (medication for neural pain), Cymbalta (anti-depressant) and Imovane (to help her sleep).
Diagnoses of injuries
46 Ms Craig alleges that, as a consequence of the collision, she suffered a physical or organic injury to her low back, which is a serious long-term impairment or loss of body function. Further, she alleges that she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder. I should first determine what injuries (physical or non-physical) she has suffered in the collision.
47 Radiology reported was as follows: [17]
(a)CT scan of the lumbar spine 5 April 2006 – normal CT scan of the lumbar spine;
(b)CT scan of the lumbar spine 3 September 2007 – minimal L5-S1 diffuse disc bulge which is of doubtful clinical significance. No canal stenosis, no foraminal stenosis;
(c)MRI scan of the lumbar spine 30 March 2011 – mild L5-S1 annular tear and disc bulge without overt neuro impingement;
(d)MRI scan of the lumbar spine 18 September 2012 – relatively mild lumbar degenerative disease. The most affected level is L5-S1 where a small right paracentral disc protrusion extending inferiorly contacts but does not definitely compress the traversing right S1 nerve root in the subarticular/lateral recesses.
[17]PCB 90-91A
48 Dr Sherman, who treated the plaintiff before and after the collision, recorded the first complaint of lower back pain in April 2006. The one report that was tendered from him is unhelpful. It provides no diagnosis relating to her back complaint and no opinion as to whether it related to the collision.
49 Dr Leder took over treatment from Dr Sherman in October 2006, and took a history from Ms Craig of depression, with a nervous breakdown some three to four years previously, and back pain, which Ms Craig dated back to the collision in 2004. Two medical reports from Dr Leder were tendered.[18] They, too, are unhelpful. Dr Leder provided no details of her findings on her examinations of Ms Craig’s back, and no diagnosis or prognosis regarding the back injury. She provided no opinion concerning its cause
[18]29 June 2009 at PCB 39 and 22 November 2010 at PCB 42
50 Mr Richardson, physiotherapist, saw Ms Craig in April 2006. He noted it was difficult to assess the full extent of the problem on one visit and said it was hard to work out exactly the extent of her pain. He noted she possibly had general facet joint dysfunction, and raised the possibility of some neural involvement.[19] She saw him once or twice but did not continue treatment from him.
[19]PCB 47
51 Dr Rattray-Wood did not see Ms Craig until May 2007, after the second accident. He stated, in answer to a specific question from Ms Craig’s solicitors, that as he did not treat her prior to the second accident, he could not resolve clearly which injuries were due to the first accident (the collision) and which were due to the second accident. Further, he was unable in August 2009 to resolve what injuries she had at that time.[20] In April 2010, Dr Rattray-Wood noted Ms Craig’s complaints of increasing pain in her back and legs, noted that she walked with a limp and noted that she was clearly depressed despite medication.[21] He considered that Ms Craig’s management of her physical injuries, emotional trauma and rehabilitation had been poor.[22]
[20]PCB 51
[21]PCB 55
[22]PCB 56
52 In his more recent reports, Dr Rattray-Wood opined that:
(a)she had signs of sciatica, worse on the right side, possibly contributing to leg weakness and a tendency now to increasing falls; and
(b)substantial psychological problems.[23]
[23]PCB 60
53 Dr Rattray-Wood has not expressed a view as to what injuries were suffered in the respective transport accidents.
54 Dr Terrence Lim saw Ms Craig in 2011 and considered that there had been a development of central sensitisation which he believed, at that time, had become the major driver of her chronic and persistent pain condition. He thought her poor posture was due to a significant increase in the anterior tilt of her pelvis, resulting in an increase in the lumbar lordosis and causing a mechanical contribution to her low-back pain. He expressed no view as to which motor vehicle accident (if either) had caused or contributed to her symptoms. He merely noted that, on the history obtained by him, she had had an extremely difficult period in her life since the motor vehicle accidents in December 2004 and March 2007.[24]
[24]PCB 45
55 Dr Peter Blombery, consultant physician (specialising in vascular disease), saw Ms Craig on a medico-legal basis in February 2011 (more than six years after the collision and about four years after the second accident). The history obtained by him was that following the collision, Ms Craig had no feeling in her legs, and pain in her back, together with other symptoms unrelated to her back injury. He took a history that, after the second accident, she had ongoing problems with pain.[25] When Dr Blombery saw Ms Craig, she complained of ongoing pain in the mid-back, as well as in the legs. On examination, he found moderate tenderness on pressure over the back diffusely from the neck to the lumbar region as well as over the shoulder girdle. He thought that she had sustained soft-tissue injuries to her back, shoulders and knees in the collision. He accepted that she had had ongoing pain in those areas, which was exacerbated by the second accident. Since then, he accepted that she had ongoing pain in her back, legs, neck and shoulders. He considered that the pain in these areas was caused partly by previous asymptomatic degenerative changes becoming symptomatic and partly by the development of a Pain Syndrome in the affected areas where there had been a non-specific sensitisation of pain pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. Dr Blombery examined Ms Craig for a second time in July 2013. His opinions were unchanged.[26]
[25]PCB 62
[26]PCB 67
56 Mr Chris Haw, orthopaedic surgeon, examined Ms Craig in May 2010 at the request of her solicitors. The history taken by Mr Haw was of complaints of low-back pain following the collision, which continued right through until their exacerbation in the second accident. She complained to him of pain from the neck all the way down to her feet. He considered that Ms Craig was primarily suffering from a Post-Traumatic Stress Disorder (“PTSD”) relating to the tragic loss of her partner in the second accident, aggravated by problems within the immediate family at that time. He considered that she had normal lumbar lordosis and no neurological deficits. He noted that her movements were significantly restricted but considered that this was not due to any physical impairment and that there was no muscle spasm, no evidence of any scoliosis and no nerve tension signs. He could find no organic injury explaining her low-back symptoms.[27]
[27]PCB 88 – 89
57 Mr Haw said it may well be that there was some pathological process as a result of the accident (he did not identify which accident) which initiated pain, but it was not clear where such damage resided. He thought there was no sign of physical injury to the cervical or lumbar spine. It was possible that she had sustained a disc disruption at the T10-11 level (thoracic spine) but that this would not result in the degree of disability that she presents with.[28]
[28]PCB 89
58 Ms Craig was examined by Dr Tony Kostos, rheumatologist, at the request of the defendant in April 2011. On examination, he noted that her movements while sitting and standing were virtually non-existent, with pain in all directions; axial compression and simulated rotation produced pain; there was diffuse tenderness to light touch along the entire thoracolumbar spine, paravertebral areas and buttocks; the hips and knees could not be examined due to pain; foraminal nerve stretch tests were negative bilaterally; straight leg raising was zero degrees bilaterally; she had a marked weakness in all muscle groups tested in all four limbs, and her reflexes were normal.
59 Dr Kostos could only diagnose that Ms Craig had a Chronic Pain Syndrome. He was unable to determine whether she had any localised physical abnormality, but this seemed unlikely on the basis of the history and the examination findings. He referred to a Chronic Pain Syndrome as being the persistence of pain in the absence of any identifiable physical abnormality.
60 I regard Dr Kostos’s report as indicating that he could find no physical abnormality with Ms Craig – with regard to her low-back or anywhere else. He was unable to diagnose any physical or organic injury.
61 Ms Craig was examined by another rheumatologist, Dr Kevin Fraser, in April 2013 at the request of the defendant. He considered that she had no ongoing injuries of a physical nature. He considered that any putative (supposed) soft-issue injuries and the fracture to her rib that had occurred had long since ceased. Ongoing symptoms, he considered, were due to non-organic factors.[29]
[29]DCB 61
62 In a Transport Accident Commission Claim Form signed by Ms Craig on 12 January 2005 (about one month after the collision), she listed her injuries from the collision as being:
·head injury (minor)
·leg laceration – left and right sides
·lacerations to foot, left and right sides
·knee injury – left side.
She made no reference to back symptoms at that time.[30]
[30]DCB 5
63 In a similar Transport Accident Commission Claim Form signed by Ms Craig on 1 May 2007 (shortly after the second accident), she listed her injuries as including back pain.[31]
[31]PCB 113
64 On the basis of the medical and other evidence referred to above, and taking into account Ms Craig’s evidence:
(a) I am not satisfied that she has established that she is currently suffering from symptoms related to any physical injury resulting from the collision.
(b) I am not satisfied as to the extent to which she injured her spine in the collision. I note her first complaint of any back pain after the collision was to Dr Sherman in February 2006, some seventeen months after the collision. I note the evidence of Dr Lim regarding what he describes as central sensitisation being a scientifically proven, organic change in the central nerve system pain pathways meaning, effectively, that there had been a lowering of Ms Craig’s pain threshold resulting in the amplification of existing pain, the generation of spontaneous pain and the recruitment of other parts of the body not previously injured, to experience pain.[32] Whilst Dr Lim was at pains to describe such changes as organic, I am not convinced that this is so. In any event, I do not consider that Dr Lim would be in a position to attribute the development of such condition to the injuries sustained by Ms Craig in the collision, as opposed to those suffered by her in the second accident. I do not consider that Ms Craig has discharged the onus of establishing that her injury, insofar as it relates to the pain sensitisation described by Dr Lim, is related to the collision.
[32]PCB 46
65 With respect to Ms Craig’s claim that she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder, I note that there were medical opinions expressed in this regard by a number of general practitioners and psychiatrists.
66 Dr Sherman noted that Ms Craig was very depressed on 15 February 2005, the first time he had seen her after the collision. On that day, he had contacted her local psychiatric service and sought urgent treatment. He recorded no note and expressed no opinion as to the cause of that depression or its likely prognosis.[33] Dr Sherman referred Ms Craig to the local psychiatric service in April 2005 but there was no evidence that she actually attended there.
[33]PCB 16
67 Dr Sherman had treated Ms Craig for depression both before and after the collision. He provided no opinion as to the extent of any deterioration in her condition post-collision.
68 Mr Marchese had taken a history from Ms Craig relating to her pre-collision condition. He was told that prior to the collision, her life was progressing appropriately with usual ups and downs and that she was working with persons with disabilities and had plans for the future including travelling overseas. Mr Marchese was not given any history relating to pre-collision depression, treatment or the overdose incident. The history provided to him was plainly incomplete.
69 In his report of April 2011, Mr Marchese noted the history obtained from Ms Craig that, in both accidents, she feared for her life. In addition, in the first accident, she feared for the lives of both her partner and the young child travelling with them.
70 Mr Marchese noted that since the second accident, Ms Craig had struggled with a number of psychological symptoms suggestive of PTSD. These included intrusive, distressing recollections of the event; distressing dreams; at times she felt she was reliving the event; psychological distress upon exposure to both internal and external cues symbolising the accident, as well as clear physiological reactions upon exposure to internal or external cues and other symptoms set out in his report.[34] It is clear that he regarded these as being caused by the second accident.
[34]PCB 20
71 The psychiatrist, Dr Sacks, had obtained a history from Ms Craig of her becoming quite severely depressed after the breakup of her first de facto relationship in 2003. That history was that she had been successfully treated with antidepressant medication. He obtained no history of any overdose attempt or ongoing reports of depression.
72 In April 2010, Dr Sacks took a history that following the collision and before the second accident, Ms Craig and her partner became increasingly anxious, depressed and socially withdrawn and that her partner also began abusing alcohol.[35] Ms Craig reported to Dr Sacks that since the first accident, and more so after the second, she had become increasingly anxious and depressed.[36]
[35]PCB 34
[36]PCB 34
73 The history taken by Dr Sacks included that, following the second accident, Ms Craig had become involved with a group of friends who were engaged in a variety of minor criminal activities. She began using speed, ostensibly to cope with pain and the feelings of loss and abandonment following her partner’s death. She was charged with a number of unidentified offences. In 2009, she ceased using such stimulants. She complained of severe, generalised body pains, palpitations, hot and cold flushes with heavy sweating, churning of her bowels, and urgency and frequency of micturition. She had intense feelings of anxiety and apprehension which could be precipitated by crowded places, travelling in a car or attending appointments. I accept that the history taken by him is likely to be substantially true.
74 Dr Sacks diagnosed Ms Craig as suffering from a Chronic Pain Disorder associated with both psychological factors and a “general medical condition” (which term he did not explain). Dr Sacks concluded that her history of increasing severe and intractable generalised body pains affecting her neck, shoulders, lower back and legs was consistent with injuries that she sustained as a direct result of the transport accident in 2004. He considered that the second accident in which she sustained similar injuries, both physically and, more significantly, emotionally, exacerbated her problems. This increased her levels of sensitisation which had then become further compounded by her non-compliance with appropriate rehabilitation after each of the accidents. Further, as a direct result of both accidents, he considered that Ms Craig had developed symptoms of chronic PTSD. Symptoms consisted of ongoing nightmares, distressing thoughts about the accidents, anxiety in cars and crowds, and the tendency to avoid people (including doctors) that provoked thoughts and memories of the accident. She also had reported feelings of alienation and detachment from others and thoughts that she, too, should have died in the accident.[37]
[37]PCB 36 – 37
75 Further, Dr Sacks considered that, as an indirect result of the persistent and seemingly intractable pain and its associated disability, Ms Craig developed a Chronic Adjustment Disorder.
76 Dr Michael Epstein, psychiatrist, examined Ms Craig in November 2009 and June 2013 at the request of her solicitors.
77 In November 2009, Dr Epstein considered that, as a consequence of the collision, Ms Craig was left with ongoing physical symptoms, together with a PTSD, and the combination of both of these had led to a mild Chronic Adjustment Disorder with Depressed Mood. She did not appear to have had any treatment in respect of her psychological symptoms after the collision. She was injured in the second accident with some slight aggravation of her physical symptoms.
78 Dr Epstein considered that the major impact of that second accident was an exacerbation of her pre-existing PTSD and intense grief as a result of the death of her partner. Since then (that is, the second accident), Dr Epstein considered that her quality of life had diminished markedly, affecting her work capacity, her relationships and her recreational enjoyment.
79 In June 2013, Dr Epstein considered that the plaintiff had suffered from a PTSD as a consequence of the collision that had also left her with ongoing physical problems. The combination of these led to a mild Chronic Adjustment Disorder with Depressed Mood. He considered that the major cause of distress was from the death of her partner in the second accident and her worsening pain. He thought that she continued to have symptoms of a PTSD arising from the collision that was exacerbated by the second accident, and continues to have symptoms of depression with a Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood and chronic pain that has exacerbated her level of depression. He noted that her quality of life had diminished markedly affecting her work capacity, her relationships and her recreational enjoyment. He thought her prognosis for improvement was poor.
80 In May 2010, Mr Haw, orthopaedic surgeon, opined that Ms Craig was primarily suffering a PTSD relating to the tragic loss of her partner in circumstances that were aggravated by family problems that followed.
81 Ms Craig was examined at the request of the defendant by Dr Timothy Entwisle, psychiatrist, in April 2011 and April 2013. After the first of those examinations, Dr Entwisle considered that Ms Craig was suffering from PTSD in the context of chronic pain. He noted specifically that the second accident involved the loss of her partner to whom she was obviously very close. Following the second accident, Ms Craig had told him that she had subsequently “run off the rails” and had become addicted to heroin. Dr Entwisle appeared to apportion Ms Craig’s PTSD approximately equally between the two transport accidents.
82 In June 2013, Dr Entwisle again concluded that Ms Craig had suffered from PTSD. He considered that the depressive component of her condition had by then resolved, although she continued to suffer from the symptoms of PTSD. She was a nervous passenger and had dreams and nightmares of the accident. She tended to become hyper-aroused and irritable. He noted that she had clearly benefited from her attendance at Dr Lim’s pain management clinic and described the management of her pain as having improved.
83 I consider the medical evidence and the evidence of Ms Craig supports the conclusion that as a result of the collision, Ms Craig suffered a PTSD from which she had not recovered by the time of the second accident. I find that the condition was exacerbated by the second accident and in particular, by the death of her partner.
84 That PTSD has, at some time, led to a Chronic Adjustment Disorder with Anxiety and Depression.
Consequences of injury
85 Ms Craig carries the onus of establishing the consequences of injuries suffered by her in the collision.
86 Senior Counsel for the defendant submitted that Ms Craig had been treated for depression before the collision and that I should not be satisfied that any additional consequences relating to the collision should be considered to be at least very considerable. He submitted, and I agree, that I should apply the test laid down in Petkovski v Galletti[38] and compare Ms Craig’s condition prior to the collision with her condition (or so much of it as can be attributed to the collision) at the present time.
[38][1994] 1 VR 436 at 444
87 A meaningful comparison of pre and post-accident conditions of a plaintiff requires a plaintiff to put sufficient material before the Court to enable such a comparison to be made. A level of frankness on the part of the plaintiff is required. Where a plaintiff simply ignores pre-accident problems or seeks to deliberately play them down, such a comparison will be difficult and often impossible. It should be kept in mind that it is the plaintiff who carries the onus of establishing that the extent of exacerbation of a pre-existing condition amounts to a serious injury in itself. It is not enough to demonstrate merely that the plaintiff’s current condition is one that amounts to a serious injury and that the relevant accident made a contribution to, or was a cause of, that condition.
88 In this case, there was a paucity of evidence as to the extent of Ms Craig’s psychiatric and/or psychological state prior to the collision. Ms Craig’s evidence that she had no recollection of prior treatment or the overdose a short time before the collision was unconvincing. Dr Sherman had treated her before and after the collision and one would presume that he would have been able to have given an opinion concerning the extent of any exacerbation of her condition following the collision. He did not do so.
89 Senior Counsel for Ms Craig submitted that whilst there was evidence of pre-collision depression, there was no evidence of prior PTSD. However, the evidence of symptoms of depression or of symptoms of PTSD in the period between the collision and the second accident is scant save for the attendance in February 2005 when Dr Sherman referred her to the local community health centre. She appears not to have attended there on that referral.
90 There was no diagnosis of PTSD by those who treated her during the period between the collision and the second accident.
91 I accept that following the second accident, there were significant symptoms indicative of PTSD and note that she still suffers from such symptoms currently. It may be the case that she suffered from a degree of PTSD, depression and/or anxiety following the collision which had not fully resolved by the time of the second accident. It may also be the case that that unresolved state may have resulted in her being more vulnerable to exacerbation of that condition in the event of further trauma.
92 On balance of probabilities I consider that the major portion of her current PTSD and her depression and anxiety was a consequence of the second accident rather than the collision.
93 Taken as a whole, the evidence does not enable me to be satisfied:
(a) as to the degree of exacerbation of Ms Craig’s depression resulting from the collision when compared with those in existence beforehand; or
(b) that the consequences of any mental or behavioural disturbance or disorder sustained in the collision (as opposed to those in existence prior to it or those sustained as a result of the second accident) when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable and more than merely significant or marked”.
Conclusion
94 For the reasons expressed above, I am not satisfied that Ms Craig has suffered a serious injury as a consequence of the transport accident of 13 December 2004.
95 The application shall be dismissed.
96 I shall hear the parties as to any consequential orders sought.
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