Dankha v Transport Accident Commission
[2020] VCC 77
•14 February 2020
vc
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04847
| ADORINA DANKHA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 August 2019 | |
DATE OF JUDGMENT: | 14 February 2020 | |
CASE MAY BE CITED AS: | Dankha v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 77 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury– whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles – paragraph (c) case
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Katanas v Transport Accident Commission [2016] VSCA 140; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Haden Engineering v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr G Worth | Slater and Gordon |
| For the Defendant | Ms A M Magee QC with Ms A Bannon | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a motor vehicle accident on 22 October 2013 (“the accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘Serious injury’ means –
(a) serious long-term impairment or loss of a body function;
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The application was brought pursuant to ss(a) and ss(c) of the definition of “serious injury”.
5 The plaintiff’s case is that by reason of the motor vehicle accident, she suffered an injury to her spine, as well as a psychiatric injury in the nature of Post-Traumatic Stress Disorder (“PTSD”), Major Depressive Disorder, an Anxiety Disorder and/or a Pain Disorder which is psychiatrically based.
6 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (supra); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
7 In relation to an application concerning paragraph (c) of the definition of “serious injury”, the judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of the word “severe”. In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition, is stronger than the word “serious”.[4] Winneke P agreed with Brooking JA’s reasons and further agreed 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”.[5] Phillips JA[6] and Charles JA[7] made comments to similar effect.
[3][1998] 3 VR 833
[4]Mobilio v Balliotis [1998] 3 VR 833 (“Mobilio”) at 846
[5]Mobilio (ibid) at 834-5
[6] Mobilio (ibid) at 858
[7]Mobilio (ibid) at 860-861
8 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder is “severe”, I must conclude that those consequences are more than “very considerable” to the plaintiff.[8] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[9]
[8]See Noonan v State of Victoria [2013] VSCA 289; Mobilio (supra); Katanas v Transport Accident Commission [2016] VSCA 140
[9](Supra) at 140, per Crockett and Southwell JJ
9 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[10] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[11] The task of assessing the pain and suffering consequences of an injury has been held largely to be a question of impression and value judgment.[12]
[10]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[11]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at paragraph[52]
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[13]
[13]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[14]
[14]PetkovskivGalletti (ibid)
12 Applying the principles set out in Petkovski v Galletti,[15] in an application like this where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[16] If I am satisfied that the additional impairment is “serious” and long-term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[17]
[15](Supra) at 443
[16](Supra) at 444
[17]Supra
13 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon affidavits from her sister, Ramina Dankha, and her mother, Lyda Dankha. Both the plaintiff’s sister and her mother were required to attend for cross-examination and to be out of Court during the plaintiff’s evidence. Ultimately, neither deponent was called upon to give evidence.
14 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[18] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[18]The plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the defendant’s Court Book was marked as Ex D1
15 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
16 The plaintiff was born in October 1991. She is presently twenty-eight years of age. She lives with her husband, who she married in 2019.[19]
[19]Ex P1, page (“p”) 8
17 The plaintiff completed schooling at seventeen years of age to Year 12 level at Swinburne Senior School. After completing her schooling, she undertook a nine-month travel course through Jetset Travel Centre in Melbourne. While she was employed, she was also working as a retail assistant for Valley Girl Clothing, initially at the Melbourne Central store and subsequently, at the Highpoint store. She was employed in these positions at the time of the transport accident.[20]
[20]Ex P1, p 8
18 The plaintiff deposed that prior to the transport accident, she had not suffered any injury similar in nature to that which she suffered as a result of the collision.[21]
[21]Ex P1, p 8
The accident
19 The plaintiff described the accident in the following terms:
“The subject accident occurred on 22 October 2013 when I was travelling on a green light through the intersection of the Hume Highway and Cooper Street, Epping. As I did so, a car travelling in the opposite direction on the Hume Highway suddenly executed a right hand turn across the path of my vehicle causing a collision. My vehicle was sufficiently damaged that it was required to be written off …
As a result of the injuries sustained in the subject incident, I was transferred by ambulance to the Northern Hospital. I was particularly suffering from pain in my upper chest, left foot, left wrist and neck stiffness. I understand that I was diagnosed with soft tissue injuries and musculoskeletal chest wall pain. I was detained for examination over a number of hours and thereafter discharged with ongoing analgesia and for referral to my GP. I was subjected to a number of x-rays. An x-ray of my chest disclosed no rib fracture. An x-ray of my left shoulder disclosed no major abnormality. An ultrasound of my left shoulder showed that the rotator cuff was intact. I understand that reports show that cervical flexion [was] also identified to be restricted in CT2-3 …
I did attend my local practitioner. I was referred for physiotherapy treatment and attended Central Brunswick Physiotherapy and Sports Medicine Centre suffering from neck, mid-thoracic and lower back pain. I received massage and mobilisation on a number of occasions. I also received chiropractic treatment but my symptoms did not resolve. I was diagnosed by the chiropractor with chronic whiplash and myofascial pain syndrome … .”[22]
[22]Ex P1, pp 8-9
Evidence of the Plaintiff
20 As referred to above, the plaintiff swore three affidavits. She was cross-examined and also re-examined.
21 The relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the transport accident, is as follows:
Experience of pain and treatment
(a)she is considerably disabled by pain throughout her neck, extending into her shoulders and between her shoulder blades. The neck pain also contributes to migraines, which she suffers weekly;
(b)she suffers from lower back pain. The pain throughout her spine is constant but variable in severity;[23]
[23]Ex P1, pp11-12
(c)she is never completely free of pain and finds that the best measures she can utilise to try and limit the severity of the pain is to protect her spine as much as possible;[24]
[24]Ex P1, p12
(d)her spinal pain, particularly in the lower back, is aggravated by sitting or standing for extended periods. She suffers from intermittent pins and needles and numbness in her calves. She also suffers from some right lower limb symptoms because her right lower limb was jammed under the pedal at the time of the transport accident;[25]
[25]Ex P1, p12
(e)she finds that there is ongoing pain in her wrists, which is aggravated by typing and moving a mouse;[26]
[26]Ex P1, p12
(f)she continues to see her general practitioner, Dr Ghassan Markabawi, as required. Dr Markabawi has diagnosed a whiplash injury affecting her spine, in particular, her cervical and lumbar spine, as well as soft-tissue injuries affecting her right foot and left shoulder;[27]
[27]Ex P1, p11
(g)she was assessed by an orthopaedic surgeon, Mr David de la Harpe, who reviewed her on 8 January 2016. At this time, she was continuing to use both Tramal and Panadol medications for partial pain relief. Mr de la Harpe advised her against any surgical treatment for her spine;[28]
[28]Ex P1, p9
(h)she has continued with other conservative treatments. She attends the Central Brunswick Physiotherapy and Sports Medicine Centre with neck and mid-thoracic pain. A local practitioner referred her for massage and mobilisation;[29]
[29]Ex P1, p10
(i)at the time of the transport accident, the air bag deployed and her face struck that device with force. She found that the shape of her nose was adversely impacted and she had some difficulties with nasal function as a result. She returned to visit family in Lebanon and a practitioner over there recommended nasal surgery, which ultimately was performed on 20 July 2015;[30]
[30]Ex P1, p10
(j)in addition, she consults her physiotherapist, Mr Vincent Russo, on a fortnightly basis. She finds her physiotherapy treatment beneficial in helping temporarily to relieve the pain. Mr Russo recommended referral to a pain specialist, Dr David Vivian, for nerve-block injections;[31]
[31]Ex P1, p14
(k)she was assessed and approved for a three-month rehabilitation program, which she undertook at the Dorset Rehabilitation Centre between August and October 2017. That program was multidisciplinary, involving further physiotherapy, occupational therapy and psychology treatment. She found that program beneficial in helping her to deal with her persisting pain, particularly throughout her spine and referred symptoms;[32]
[32]Ex P1, p10
(l)she is concerned that at a point almost five-and-a-half years after the subject accident, she continues to be troubled by so much constant pain throughout her spine and the psychological condition which that pain has brought about. Given the period of time over which the symptoms have persisted and the resistance of her symptoms to treatment and medication, she is concerned that the symptoms will persist into the future;[33]
[33]Ex P1, pp14-15
Medication
(m)the types of medication which she is able to use has been restricted by reason of reflux symptoms from which she suffers. She is presently taking Nuromol medication (Panadol and Nurofen), but in the past has been prescribed a variety of more potent medications;[34]
[34]Ex P1, pp10-11
Effect on sleep
(n)the pain in her shoulder blades interferes with her sleep, even though she takes medication to help her sleep and also to relieve her pain;[35]
[35]Ex P1, p12
Activities of daily living
(o)she has been forced to drop out of social, recreational and sporting activities which she used to enjoy on a regular basis, including a social kick of soccer, gym, boxing and going out socially;[36]
[36]Ex P1, p12
(p)she finds that her sitting and standing tolerance tends to be limited by pain. She finds that the medication which she takes for pain relief is only marginally beneficial in assisting her with sleep;[37]
[37]Ex P1, p15
(q)her social, domestic and recreational activities continue to be significantly and adversely affected. She used to enjoy going to the gym about three times per week. She used to enjoy gym boxing, but no longer goes to the gym for that activity;
(r)she and her husband are limited in their social outings. They no longer go out clubbing or engage in activities of that nature. They have a group of friends who they visit and have a meal with from time to time, but not nearly at the level of the plaintiff’s social activities before she sustained the injuries in the transport accident;[38]
[38]Ex P1, p15
(s)she was married on 16 March 2019. She was shown a video of her wedding and Facebook photographs of both her wedding and other friends’ weddings, and associated events which she has attended over a number of years during a conference with the Transport Accident Commission;[39]
[39]Ex P1, pp17-18
(t)she deposed to the fact that during each of these events, she was troubled by persisting spinal pain, particularly affecting her lower back, upper back and lower neck regions. She gives as an example that on her wedding day, it was necessary for her to use both Nurofen and Nuromol medications, and a numbing cream, Rapigel, in order to try and deal with the pain so she could enjoy her special day;[40]
[40]Ex P1, p18
(u)the measures which she had to engage in on her wedding day would be unnecessary, save for the persisting nature of her pain and disability arising from the transport accident. She deals with the pain as best she can so she can continue to participate in daily activities, including attending and enjoying her own wedding;[41]
Psychological effects of the transport accident
(v)by reason of the chronic nature of the pain from which the plaintiff suffers, she has developed some psychological symptoms. In respect of these symptoms, she has attended a clinical psychologist, Mr David Warmington, at Seed Psychology in Brunswick East. Mr Warmington diagnosed her as suffering from symptoms of Depression, Anxiety and Post-Traumatic Stress Disorder (“PTSD”). She has found his treatments beneficial in assisting her to deal with those symptoms. Despite these treatments, she has continued to suffer from a chronic psychiatric injury which, in itself, poses significant limitations on her lifestyle;[42]
(w)at the suggestion of Mr Warmington, she has been prescribed a low dose of antidepressants, Cymbalta and Circadin, to sleep. She has avoided taking that medication because she had concerns about dependency. She has recently started to take the medication;[43]
(x)she continues to consult her psychologist, Mr Warmington, on approximately a monthly basis. Her sessions with Mr Warmington involve extensive counselling and pain-management techniques including strategies for dealing with the secondary consequences of her pain, being anxiety and depression.[44] He has expressed to her the need for ongoing use of antidepressant and relaxant medication. He also said that she should really be pursuing part-time work because of her psychological condition;[45]
(y)when undergoing a recent MRI scan, the plaintiff needed to use Valium to assist with her anxiety;[46]
(z)she believes, having regard to the persisting nature of her anxiety and depression, that if she were to undertake part-time work rather than her present full-time hours, this might be of assistance in enabling a better level of control of her psychological symptoms;[47]
[41]Ex P1, p18
[42]Ex P1, p11
[43]Ex P1, p14
[44]Ex P1, p14
[45]Ex P1, p19
[46]Ex P1, p19
[47]Ex P1, p19
Pecuniary disadvantage
(aa)she has been able to hold down employment with her current employer, Red Energy. She has required some time off work, perhaps a day or two a month, which is frowned upon in her area of work, where daily attendance is required. She relies on medication to get through her days at work;[48]
(bb)she believes that if her working hours were restricted in the way recommended by occupational physician, Dr Joseph Slesenger (for example five hours a day, four days a week), that might assist in alleviating some of the pain which she continues to experience in her full-time employment with Red Energy. This employment involves her being seated for extended periods and undertaking data entry for billing and accounts.[49]
[48]Ex P1, p15
[49]Ex P1, p18
22 Under cross-examination, the plaintiff gave the following evidence:
(a)she understood, when swearing her affidavits, that she needed to be truthful. She understood that the purpose of the affidavits was to set out a complete picture of her position. She was also aware that when she saw her doctors, both for treatment and for the purposes of care, it was important to be truthful and accurate. She agreed that at all times she has endeavoured to be truthful and accurate with her doctors;[50]
[50]Transcript (“T”) 18, Lines (“L”) 1-14
(b)she said that there was no exaggeration in her affidavit;[51]
[51]T20, L4
(c)she agreed that after being taken to hospital, there was a delay and she did not wish to wait any longer for further investigations. In those circumstances, she discharged herself. Before she left, she was told that the investigations that had been undertaken were essentially normal;[52]
[52]T21, L4-12
(d)she agreed that when she attended at the Northern Hospital, she did not make any complaint of facial injury;[53]
[53]T22, L13-15
(e)she agreed that when she returned to the hospital three days later, she did not make any complaint about facial injuries. She agreed that she had problems with her nose prior to the transport accident;[54]
[54]T21, L16-31
(f)she agreed that she had rhinoplasty for her nose in Beirut in 2011. She agreed that she was unhappy with the result at that time and was referred to a plastic surgeon in the middle of 2012 to re-assess her nose;[55]
[55]T22, L1-7
(g)she agreed that at the time of the accident she continued to be dissatisfied with the shape of her nose and the outcome of the original rhinoplasty. She agreed that she had always intended to have further treatment to fix it. She denied that she was intending to have another operation;[56]
[56]T23, L13-20
(h)she agreed that she did not tell her general practitioner about any injury to her nose following the transport accident;[57]
[57]T23-24
(i)she maintained that during the accident the air bag deployed into her face;[58]
[58]T24, L7-11
(j)she agreed that as at 28 June 2019, she was not living in Brunswick, as she had deposed. She agreed that she had not been living at the family home since she got married in March 2019. She agreed that in her affidavit sworn 28 June 2019, she had not mentioned the fact of her marriage at all;[59]
[59]T24, L18-28
(k)she agreed that she had made no mention in her affidavits that she had had a reception, honeymoon and participated in dancing at her wedding. She said that she did not intentionally leave these matters out of her affidavit;[60]
[60]T35-36
(l)she agreed that where she had referred to her husband as her fiancé, that was incorrect;[61]
[61]T25, L2-13
(m)she denied that she had omitted reference to her wedding in her affidavits because she thought that this may detract from the strength of her case. She maintained that this was an oversight and was not intentional. She said this despite then agreeing that she was aware that part of her case is about how well she is able to cope with her life and what things have been going on in her life;[62]
[62]T34-35
(n)she said that when she had given a different address to the one where she was living now in her affidavit, “it wasn’t intentional”.[63] In response to questioning about why she had described her husband as her fiancé, she replied, “all the practitioners knew I was married”.[64]
[63]T26, L25 and 26
[64]T26, L13-27
(o)she agreed that it was misleading in the context of giving affidavit evidence about her social, domestic and recreational activities, not to mention either her marriage or her wedding ceremony;[65]
[65]T26-27
(p)she said that despite a recommendation from Mr Russo that she consult Dr Vivian, she had not taken any steps to see Dr Vivian.[66] Later, she said “I made a call to the reception, asking the procedure, and they said I need a referral and I never went through with the referral”;[67]
[66]T25-26
[67]T29, L5-7
(q)she agreed that she has been on numerous overseas trips and trips interstate requiring plane travel since the transport accident. That included her honeymoon in Bali for five nights; a trip to Beirut in 2015, where she had further surgery to her nose; trips to Queensland in 2016 and 2017 (for a couple of days each time) and a trip to Lebanon in 2018;[68]
[68]T29-30
(r)she agreed upon being taken through the record of her consultations with Mr Russo, that if she had told practitioners she was seeing him either weekly or fortnightly, that was not a true history. She agreed that at times she had had breaks from seeing Mr Russo of six months and, on one occasion, eleven months. The records demonstrated that, at best, her attendance on Mr Russo was erratic and sporadic. She agreed that she had not had any physiotherapy at all with Mr Russo in 2017. She said that she had attended alternate physiotherapy through the Pain Management Program at the Dorset Rehabilitation Centre during this time. According to a report in relation to this program, there were six visits for physiotherapy in 2017 through that centre.[69] She agreed that in 2018 she only saw Dr Russo twice in the whole year;[70]
[69]T38-39
[70]T39, L25-31
(s)she refused to acknowledge that she had exaggerated the frequency of her physiotherapy visits in her affidavits. She denied that she had been intentionally lying to the doctors who she had seen either for treatment or medico-legal purposes.[71] She said that the information she had given was not “correct in terms of timings”;[72]
[71]T41, L1-13
[72]T40, L4-5
(t)she agreed that in 2019, she had not seen the physiotherapist at all until 1 May 2019: “I took a break … this year.”[73] She said she was “not sure” why she had told Associate Professor Peter Doherty, on 3 April 2019, that she was having monthly physiotherapy at that time: “I don’t know my exact visits;”[74]
[73]T40, L10
[74]T40, L15
(u)she agreed that at no time has anyone referred her to a psychiatrist for treatment;[75]
[75]T41, L14-17
(v)she agreed, in relation to her visits to Dr Warmington, that she had incorrectly told Dr Paul Kierce, orthopaedic surgeon, that she was seeing a psychologist once a week. She also agreed that she had incorrectly told Dr Nathan Serry, psychiatrist, that she had been seeing a psychologist every two weeks. She acknowledged that she had told Associate Professor Doherty that she had been attending a treating psychologist for four years on a monthly basis and that this was not true. She agreed that in 2015, she had ten visits to her psychologist, that in 2016, she attended five times during that year, that in 2017, there were three visits for the whole year and that in 2018, there were seven visits for the year. She agreed that there was a six-month gap between the last consultation in 2018 and recommencing attendances with the psychologist on 29 May 2019. She agreed that she had also given incorrect histories to Mr Russell Miller, orthopaedic surgeon and Mr Gary Speck, orthopaedic surgeon;[76]
[76]T43-45
(w)she agreed that she is now seeing Dr Warmington reasonably frequently “we are back to five to six weeks, yes”.[77] She agreed that this frequency is different to the frequency with which she had been seeing him in the past. She agreed that Dr Warmington had told her that unless she commits to treatment and starts attending him regularly, that he will not be able to treat her properly;[78]
[77]T45, L18-19
[78]T45, L15-25
(x)she did not recall attending her general practitioner prior to the transport accident for anxiety. She did not recall being described as “an anxious person”. She said that if the note records those things “I’m sure it’s there. I just don’t remember it.”[79] When asked if she recalled suffering from anxiety prior to the transport accident, she replied “[b]eing that age I'm sure I would have had experiences that have made me anxious”.[80] When pressed, she replied “[p]robably on occasions, yes. I just don't remember it. It was a long time ago.”[81] She later said in relation to the doctor’s notes “I just don't know why he would say that”;[82]
[79]T46, L18-19
[80]T46, L21-22
[81]T46, L25-27
[82]T46, L30-31
(y)she agreed that when she had said in her affidavit that she was seeing her general practitioner every three to four weeks, that included attendances upon him for medical issues other than those arising from the transport accident;[83]
[83]T54
(z)she agreed that in 2009, which was her VCE year, she had attended at St Vincent’s Hospital Emergency Department on a number of occasions with gastroesophageal issues: “I had a lot of stomach pain, yes … I have GORDs so it varies, yeah;”[84]
[84]T54, L25-28
(aa)she did not dispute that she had attended at St Vincent’s Hospital on 10 September 2010, presenting with hyperventilation;[85]
(bb)she agreed that she had hoped to work as an air hostess, or train for work as an air hostess. She said she had applied for a job, but did not go through with it. She said “I was shortlisted for Emirates. I found out after the accident that I was shortlisted.”[86] She agreed that she did not return to work at Valley Girl clothing store following the transport accident;[87]
(cc)she agreed that six weeks after the accident she obtained the job that she is presently in. She agreed that she is now earning significantly more than she ever did when she was at Valley Girl. When asked if she had ever been informally warned by her employer for taking time off work, she replied “… we have had discussions. They are understanding;”[88]
(dd)she maintains that she takes off one to two days per month from her current job. She agrees that she can do her job. When it was put to her that her general practitioner had described her as “occasionally” taking time off work, she replied “I feel like it’s more than occasional”;[89]
(ee)she agreed that the reason her work ability is impacted is because she is in pain;[90]
(ff)she agreed that in her latest affidavit she had sworn to the fact that there are now psychological reasons why she cannot work. She says that is how she feels at the moment. She denied that this change had come about because she thought it would make her case stronger;[91]
(gg)she agreed that she had been prescribed Tramadol in November 2015 and August 2016. Her explanation for having told medical practitioners that prior to these dates she was taking Tramadol, was that she was given a box of this medication when she had her wisdom teeth out;[92]
(hh)she agreed that there was no other prescribed painkilling medication that she is presently taking;[93]
(ii)she agreed that the first prescription that she had received for Cymbalta, was from Dr Markabawi on 14 October 2018.[94]
[85]T55, L2-31
[86]T56, L29-30
[87]T56-57
[88]T57, L3-18
[89]T59, L7
[90]T59-60
[91]T61-62
[92]T66-68
[93]T69, L1-23
[94]T71, L21-29
23 Under re-examination, the plaintiff gave the following further evidence:
(a) she finds working full-time hours very hard, physically and mentally “it's exhausting, the commute and sitting there. It's just a really big day and it takes it out of me physically and then I don't have time to commit to anything to make me feel better;”[95]
[95]T78, L19-23
(b) she said that she had discussed with Dr Warmington that her difficulty with working is because of the pain, anxiety and depression;[96]
(c)she said that the reason she has not returned to the gym is that she did not feel physically able to do it. That was the same with soccer: “It’s very strenuous … I don’t physically think I would be able to do that again.”[97] She said that she had coped with travelling on long-haul flights by using painkillers and heat patches. She said that she is unable to sleep on long-haul flights;[98]
(d)in the Claim for Compensation dated 28 October 2013, the plaintiff noted that she had sustained injuries, including a “nose injury.” When asked why she had put that in the Claim Form, she replied “[b]ecause my nose was sore from getting smacked with the airbag”.[99]
[96]T81, L6-7
[97]T82, L22-25
[98]T82-83
[99]T86, L14-15
Additional evidence in support of the Plaintiff
24 In addition to her own evidence, the plaintiff relied upon affidavits from her sister, Ramina Dankha,[100] and her mother, Lyda Dankha.[101] The substance of the affidavits provided by each of these deponents was as follows:
[100]Ex P1, p20
[101]Ex P1, p23
(a)the plaintiff’s sister resides at the family home, where the plaintiff lived up until shortly before the hearing. She has had constant access to the plaintiff and is aware from their discussions that she continues to suffer from constant variable levels of pain in her spine and some referred pain, particularly into her shoulder;[102]
(b)her sister is aware that the plaintiff takes a variety of medications to relieve some of the pain, but to her observation, the medication has largely been unsuccessful;[103]
(c)her sister has observed that the plaintiff has lost her social life to a large extent and spends much more time at home than she used to. Her sister confirms that the plaintiff used to be keen on going to the gym a few days a week, but that she no longer attends the gym. Her sister confirms that the plaintiff also played both indoor and outdoor soccer, but no longer plays this sport;[104]
(d)her sister has observed that the plaintiff suffers some symptoms of anxiety and depression and seems more irritable and easily upset than she used to be. She has observed that the plaintiff has required psychological counselling over an extended period of time. The plaintiff and her sister were formerly very close to each other, but their relationship has “drifted” since the transport accident, as the plaintiff has become increasingly irritable and snappy. The plaintiff’s sister feels that this irritability and snappiness is directed at her. Another thing which the plaintiff’s sister has noticed is that if they are going out together, then the plaintiff avoids driving where it is possible for her to do so;[105]
(e)the plaintiff’s mother has similarly noticed that while the plaintiff was living at home her pain has been constant and that her complaints seem to be present, most significantly, in her lower neck and upper back and across the shoulders, and also in her lower back. Her mother has observed that the plaintiff has been complaining of pain on and off over the years since the accident, despite extensive medical treatment. She confirms that the plaintiff has used medication over an extended period of time;[106]
(f)to her mother’s observation, the plaintiff’s activities have been very significantly and adversely impacted since the transport accident. Her mother confirms that the plaintiff has been able to continue to hold down her job at Red Energy, but observes that this is “at a cost of increased pain ...”.[107] Her mother observes that the plaintiff seems to have difficulty with extended periods of sitting and standing. The plaintiff has complained to her mother of difficulty sleeping, particularly by reason of her shoulder symptoms;[108]
(g)her mother confirms that the plaintiff used to be active, going to the gym regularly during the week, but that she no longer pursues this activity. Her mother confirms that the plaintiff also used to play social soccer, both indoor and outdoor, but no longer plays this sport. Her mother says that socially, the plaintiff goes out with her fiancé and her friends, but she is not nearly as socially active as she was before the transport accident. The plaintiff seems to be more housebound than she was in her earlier years. Her mother observed that the plaintiff used to involve herself in housework tasks, but is no longer nearly as involved in the performance of those tasks because of the additional pain that activities, such as vacuuming, cleaning the bathroom, washing clothes and the like causes for the plaintiff;[109]
(h)her mother has noticed that the plaintiff is much more ill-tempered and inclined to be snappy, which was not a feature of her character before suffering the injuries. Her mother attributes these reactions to the pain that the plaintiff is suffering. Her mother confirms that the symptoms from which the plaintiff has suffered have persisted for a number of years without remission and seem to be a permanent feature for her at this time.[110]
[102]Ex P1, p21
[103]Ex P1, p21
[104]Ex P1, p21
[105]Ex P1, pp21-22
[106]Ex P1, p24
[107]Ex P1, p24
[108]Ex P1, p24
[109]Ex P1, p24
[110]Ex P1, p25
Medical evidence
25 There were numerous medical reports contained in the tendered material.
26 Both sides filed reports from medico-legal experts. A précis of the relevant medical materials is set out below.
The Plaintiff’s medical evidence
27 The plaintiff has seen physiotherapist, Mr Vincent Russo, on numerous occasions since the transport accident. He has provided four reports in relation to the plaintiff, the latest of which is dated 8 July 2019. In that report, he described the plaintiff as presenting on 1 May 2019, having suffered “an acute bout of pain affecting the left side of the cervical spine radiating into the middle of the trapezius muscle. Muscle spasm was present.”[111] The plaintiff reported that since she had previously attended she had managed the chronic pain with analgesia, the occasional massage and chiropractic treatment. Mr Russo reported that since that date, the plaintiff had attended him on a further three occasions. He said that on each occasion, the plaintiff had described the pain she experienced in the cervical and thoracic spine as gradually increasing over time, despite performing the exercises prescribed and taking analgesia. He said that physiotherapy treatment improved mobility at the cervical and thoracic spine and relieved the pain, however the plaintiff reported that the relief lasts only a few days.[112]
[111]Ex P1, p60
[112]Ex P1, p60
28 Mr David de la Harpe, orthopaedic surgeon, reviewed the plaintiff on 8 January 2016. On that occasion, he diagnosed her condition as being that of a soft-tissue injury only. The was no indication for surgery. He suggested at that time that she “continue conservative management in the form of physiotherapy”.[113]
[113]Ex P1, pp62-63
29 The plaintiff’s general practitioner, Dr Markabawi, has seen the plaintiff for many years and managed her injuries since the transport accident. Four reports from Dr Markabawi were included in the Plaintiff’s Court Book, the most recent was dated 28 June 2019. In that report he noted that he had examined the plaintiff and found:
“… muscle tension [in the] neck and between [the] shoulder plate and lower back with stiffness feeling in the paravertebral muscles. In addition to signs [of] PTSD symptoms, anxiety, tense (sic) and lack of motivation … .”[114]
[114]Ex P1, p95
30 Dr Markabawi also noted that while the plaintiff is still doing her current office job, some days she is “affected by pain [and] had to take time off (occasionally)”.[115]
[115]Ex P1, pp95-96
31 The plaintiff was seen by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 12 May 2017. Dr Thomas facilitated the plaintiff’s attendance at the Dorset Rehabilitation Centre for pain management. When Dr Thomas saw the plaintiff, he formed the impression that “she had a chronic pain syndrome”.[116] He noted that when she was assessed at the Dorset Rehabilitation Centre, the plaintiff’s depression, anxiety and stress-scale readings were extremely high in all three domains. He further noted that the plaintiff attended nine individual psychology sessions as part of the Pain Management Program. He reported that she engaged well with the education provided on pain and trauma. He said that there was:
“… [a] significant improvement in her confidence to actively self-manage her pain and distress. Symptoms of depression had reduced however, symptoms of anxiety and stress remained extremely severe. Catastrophic thinking was noted to remain high. It was recommended that she continued to have psychological support post discharge.”[117]
[116]Ex P1, p99
[117]Ex P1, pp99-100
32 Mr Warmington, clinical psychologist, has seen the plaintiff on numerous occasions. He has provided five reports in relation to his treatment of the plaintiff, the most recent being dated 1 August 2019. In that report, Mr Warmington notes that the plaintiff had reported:
“… becoming considerably more restricted in her work capacity by her mental health condition in recent months. Her work performance is hampered by loss of motivation, impaired concentration, depressed mood and fatigue … her chronic insomnia, due to pain, anxiety and nightmares, is also adversely impacting her levels of concentration and motivation. She feels that she has been pushing herself to the point where she is now completely exhausted at work … [the plaintiff] currently maintains full time work hours, despite considerable difficulty due to her constant back pain. As previously noted, the level of discomfort that she endures during her work would be enough to force many people to give up work completely and it is now mainly through her determination to stay at work that she is able to continue … .”[118]
[118]Ex P1, pp83-84
33 In Mr Warmington’s opinion, the plaintiff’s future work capacity is now in doubt. He stated:
“Her symptoms of anxiety, depression and PTSD are impinging on her ability to perform her duties, to the extent that full time work hours now appear to be unsustainable for her …
At this stage, for [the plaintiff] to improve her psychological functioning would require an extended period of reduced working hours. This would enable her to focus on her treatment, enabling her to attend appointments, and also to set achievable activity goals, both at work and in her home life.”[119]
[119]Ex P1, p84
34 The plaintiff has seen Dr Serry, consultant psychiatrist, on two occasions. Three reports from Dr Serry were included in the Plaintiff’s Court Book, the most recent dated 23 July 2019. In that report, Dr Serry made the following observations:
“… At the time of my second assessment, I concluded that your client presented with a combination of a PTSD and a chronic adjustment disorder with anxious and depressed mood, a condition of moderate severity and intensity and one which had arisen as a result of the accident related physical injuries and the impact thereof.
In relation to these diagnoses, I noted that your client experienced a sense of losing control of her life and feeling down in mood most of the time.
I also note that she described feeling anxious every day, tended to sweat excessively and uncharacteristically, and had a sense of anticipatory dread that something terrible was going to happen to either herself or her loved ones. She described worst case scenario thinking. She said that she was feeling insecure, jumpy and easily startled …
I … noted that your client thought of the accident and its consequences on a regular basis. In addition, she described accident related nightmares, trigger sensitive flashbacks on the road and she described feeling scared when driving. I noted that she avoided driving in unfamiliar areas.
I … noted that your client was fearful on returning to the accident site and avoided that area. In addition, I noted that your client became panicky and distressed upon exposure to reminders of other accidents.
The symptom profile that I elicited at the time of my second assessment, in essence confirming the symptoms identified at the time of my first assessment, is in my opinion consistent with a diagnosis of PTSD and further still, a chronic adjustment disorder with anxious and depressed mood.
I stand by the conclusions reached in my two reports and whilst there are some points of agreement in terms of my own conclusions and those reached by Associate Professor Doherty, I am of the opinion that the conclusions reached in my reports are consistent with your client’s clinical state … .”[120]
[120]Ex P1, pp119-120
35 The plaintiff was assessed for medico-legal purposes by Mr Russell Miller, most recently on 27 November 2018. Mr Miller provided four medical reports which are included in the Plaintiff’s Court Book. In a report dated 3 December 2018, Mr Miller made the following observations:
“Spine
The client suffered a musculo-ligamentous strain to the spine and thoracolumbar spine … It is likely that the client has also developed a chronic pain syndrome which influences her current clinical presentation …
Shoulders
The client has some symptoms in both shoulders. I believe this is likely to reflect referred pain from the lumbar spine and manifestation of a chronic pain syndrome and possibly rotator cuff pathology …
Mental state
The client has developed an adverse mental state reaction with problems with anxiety and depression and probable development of a chronic pain syndrome which influences her current clinical presentation and requires separate assessment by a psychiatrist …
Capacity for work
[The plaintiff] … has returned to work in office-based duties.
From the point of view of spinal injury, she will have difficulty with work that involves repetitive bending, repetitive lifting, lifting of weights more than 5 kilograms and will have a requirement to shift her posture on a regular basis.
It is unlikely that the shoulder will impose specific work restrictions … .”[121]
[121]Ex P1, pp135-136
36 The plaintiff was seen by Dr Slesenger, specialist occupational physician, for medico-legal purposes, on 7 January 2019. In a report dated 25 January 2019, Dr Slesenger noted that in addition to the physical injuries sustained in the transport accident, the plaintiff had developed depression and anxiety. He noted that she had difficulty motivating herself and had lost her enjoyment of life and enjoyment of many activities.[122] Dr Slesenger noted that the plaintiff had remained in work on a full-time basis working up to forty hours per week, but she had advised that her attendance at work had been affected by ongoing physical and psychological impairment. He noted that her productivity had been affected by her psychological impairment. Dr Slesenger was of the opinion that the plaintiff would be unlikely to sustain her current level of activity within an administrative role and was of the opinion that the plaintiff would have difficulty securing employment in another role, given her current difficulties with attendance at work. He was of the view that the plaintiff retained a capacity for work with restriction, namely:
[122]Ex P1, p142
“• no push, pull, carry or lift over 5 kilograms.
• no repetitive bending or twisting.
• no exposure to whole body vibration.
• no sustained forward reaching or over shoulder reaching.
• 5 hours a day, 4 days a week (Monday, Tuesday, Thursday and Friday).”[123]
[123]Ex P1, pp149-150
37 The plaintiff was examined for medico-legal purposes by Dr Peter Blombery, a consultant physician specialising in vascular disease and pain medicine. Dr Blombery examined the plaintiff on 17 January 2019. He provided a report in relation to this consultation on 8 March 2019. In Dr Blombery’s opinion, the transport accident resulted in soft-tissue injuries to the muscles, ligaments and discs of the cervical, thoracic and lumbar spines which triggered the development of a pain syndrome in the affected area. It was Dr Blombery’s opinion that the Pain Syndrome involved sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. He noted that this process can be termed “central sensitisation”. He was of the view that the origin of the disorder was organic in nature.[124]
[124]Ex P1, p154
The Defendant’s medical evidence
38 The plaintiff was examined by Mr Gary Speck, orthopaedic surgeon, on 15 May 2019. In a report dated 20 May 2019, Mr Speck diagnosed the plaintiff as suffering from soft-tissue injuries to the right elbow, left ankle and neck from the transport accident on 22 October 2013. Mr Speck noted that the plaintiff had no evidence of neurological involvement or structural changes in the spinal column, or other areas investigated that were troublesome at that time. He thought, as a result of his assessment of the plaintiff, that her situation is one of:
“… a chronic pain syndrome rather than ongoing organic injury from the transport accident … ongoing management of her chronic pain syndrome is appropriately dealt with by a psychologist or psychiatrist, appropriate medication, encouragement to physical activity and maintaining good aerobic fitness. Interventions in general are not appropriate …”[125]
[125]Ex D1, p13
39 The plaintiff was assessed for medico-legal purposes on behalf of the defendant by Associate Professor Doherty, consultant psychiatrist, on 3 April 2019. Following that assessment, Associate Professor Doherty was of the following view:
“… [The plaintiff] has features of a pain-related psychiatric condition, as one of the predominant symptoms complained about by [the plaintiff] is of pain, and her concern about such is disproportionate to the known physical pathology and is excessive and such concern about pain interferes with her daily and social activities. Thus, there is possibly a diagnosis of a somatic symptom disorder with predominant pain, persisting. It is mild in severity.
As well, there are features of anxiety disorder with high levels of anxiety, insecurity, uncertainty and a lack of confidence … .
I gave consideration as to whether or not there is a PTSD condition present. In my opinion, there is not. There are some features of traumatisation, well documented. She…goes over the transport accident and is wary when driving now. There is no significant interference with her daily activities or significant distress by the traumatisation symptoms. The full picture of her PTSD condition is not present. The features of a trauma-based anxiety can be subsumed into the anxiety condition … .
Prognosis
… with regard to the natural history, [the plaintiff] has an uncertain clinical prognosis. She is psychologically fragile, has insecurity and lacks confidence. She is unhappy in her current employment position and would rather be working part-time. There is potential that she finds the work too difficult for her and cuts down her hours. There is currently a persistent anxiety-laden lack of confidence which is likely to continue ….”[126]
[126]Ex D1, pp24-25
The issues
The Plaintiff’s credit
40 The plaintiff’s credit was tested thoroughly during the hearing of this matter.
41 For example as set out above, questions were put to the plaintiff during cross-examination that suggested she had been less than open and honest with the Court in relation to her current presentation, especially as that related to her activities of daily living and enjoyment of life. It was suggested that the plaintiff had deliberately left matters out of her affidavit material and had only filed a third affidavit in an effort to correct the record, when it became apparent to her that the TAC were aware of certain facts, including her recent marriage and her overseas honeymoon.
42 In addition, it was suggested to the plaintiff that it was significant that she had deposed to living at her family’s home address, when she had for many months now, lived out of home at a different address and location. Finally, it was suggested to the plaintiff that she neither consulted her medical practitioners as frequently as she had suggested, nor had as much time off work as she had deposed to, or told her doctors.
43 A DVD of the plaintiff’s wedding was played to the Court and marked as exhibit D2. The plaintiff agreed that on the DVD she was depicted as participating happily in the wedding activities and also depicted dancing prior to and during the wedding.
44 The plaintiff’s responses to these matters have been set out in detail above.
45 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that while there were numerous inaccuracies and inconsistencies in her evidence, she was overall, a cooperative witness, who did her best within her present psychiatric presentation, to give accurate responses to the questions asked of her.
46 Having observed the DVD which was played to the Court, I formed the view that the activities depicted therein did not demonstrate any level of physical capacity or mobility which differed greatly from that which the plaintiff acknowledged that she possessed.
47 Furthermore, I find that the plaintiff’s account of events has remained fairly constant throughout the period during which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to the Court.
48 I have considered the omissions from the plaintiff’s affidavits in relation to the present place of residence, the fact of her marriage and subsequent honeymoon, as that related to her activities of daily living and loss of enjoyment of life, and her evidence in relation to these matters as it emerged under cross-examination. Further, I have considered the inaccurate histories given to the various doctors, and the explanation given for this by the plaintiff under cross examination. The manner in which the evidence in relation to these issues emerged during the running of the trial was most unsatisfactory.
49 Despite these difficulties, I am unable to conclude that the plaintiff deliberately misled the Court in relation to these or any other matters. After a consideration of all of the evidence and, in particular, the evidence of the plaintiff, as corroborated by the affidavits of her sister and mother, I consider that, overall, she was a credible witness in the sense of being a truthful person. Furthermore, I am unable to conclude that any inaccuracy in the history which she gave to any treating medical professional or medico-legal expert, has materially impacted upon the opinions which those professionals ultimately expressed.
Stoic Plaintiff
50 Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff is somewhat stoic in relation to her condition.
51 Despite the pain that she has suffered constantly since the accident, she has continued to work full-time hours. I accept that this has occurred, even though the plaintiff is often unable to avoid activities which cause her pain.
Compensable injury
52 The details and occurrence of the accident are not in dispute.
53 Having regard to all of the relevant evidence, I find that prior to the transport accident, the plaintiff suffered from various medical problems and some intermittent anxiety from time to time. These issues necessitated visits to her treating general practitioner, but no prescription of medication, and did not result in any adverse impact upon her ability to work, her activities of daily living, or her enjoyment of life.
54 I find that prior to the transport accident, the plaintiff did not suffer from any spinal, neck or shoulder injuries which caused her any adverse symptoms or other consequences.
55 It is self-evident from the analysis of the medical reports set out above, that following the transport accident, there has been a less than consistent diagnosis of the cause of the plaintiff’s neck and other spinal symptoms. However, this factor alone is not fatal to the plaintiff’s application, if it can be established that the plaintiff has suffered, as a result of the transport accident, an injury which is organically based and which results in serious consequences, or a mental disturbance or disorder, the nature of which is severe.
56 Having considered all of the medical evidence from both treating professional and medico-legal experts from both sides, the weight of the evidence satisfies me:
(a) that the plaintiff suffered numerous injuries in the transport accident, including, initially, soft-tissue injuries to her spine and shoulders; and
(b) since that time, the plaintiff has developed and continues presently to suffer from, a chronic pain syndrome, which is psychiatric in nature and which was directly caused by the transport accident. This constitutes a relevant mental disturbance or disorder for the purposes of the Act.
57 I am also satisfied to the requisite standard that as a result of the transport accident, the plaintiff has suffered symptoms of PTSD, as well as Depression and significant Anxiety.
Is the compensable injury permanent for the purpose of the Act?
58 Having considered the relevant reports, in particular those from Dr Warmington,[127] Dr Thomas,[128] Dr Serry,[129] Mr Miller,[130] Dr Slesenger,[131] and Dr Blombery,[132] I find that the plaintiff is likely to continue to suffer from the injuries as set out above, which were sustained in the transport accident, for the foreseeable future. Given this, I find that those injuries are permanent for the purposes of the Act.
[127]Ex P1, p84
[128]Ex P1, p100
[129]Ex P1, p117
[130]Ex P1, p136
[131]Ex P1, p151
[132]Ex P1, p155
Are the consequences to the Plaintiff of the transport accident “serious”?
59 Having considered all of the evidence, I find that as a result of the plaintiff’s mental disturbance or disorder alone, she presently suffers from consequences including the following:
(a)constant pain throughout her spine which is variable in severity;
(b)pain in the lower back which is aggravated by sitting or standing for extended periods;
(c)the need to use pain-relieving medication and attend her physiotherapist regularly;
(d)interrupted sleep due to pain around her upper back and shoulder blades;
(e)an inability to participate in social, recreational and sporting activities which she used to enjoy, including a social kick of soccer, gym, boxing. She also experiences significant limitations in her ability to participate in social occasions;
(f)the need for regular and frequent attendances on her clinical psychologist;
(g)the need to take antidepressant medication, as well as Circadin, to assist with sleep;
(h)a diminution in her ability to engage in full time employment. While she has been able to maintain her current employment to date, she relies on medication to get through her days at work. It has been recommended that she undertake part time hours (five hours per day, four days per week) to enable a better level of control of her psychological symptoms.
60 In Haden Engineering Pty Ltd v McKinnon,[133] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[134] Part of the process for the Court is to assess the intensity of pain which the plaintiff experiences, together with the frequency of pain and episodes. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act is one of impression of value judgment.
[133](2010) 31 VR 1 (“Haden”)
[134]Haden (supra) at paragraph [9]
61 The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[135]
[135]Haden (supra) at paragraph [12]
62 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful witness.
63 An analysis of the evidence clearly demonstrates that numerous aspects of the plaintiff’s life have been adversely affected by the consequences of the mental disturbance or disorder from which she now suffers as a result of the transport accident.
64 The fact that since the transport accident the plaintiff was prepared to keep working, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[136]
“… it would be unfortunate, and in [our] view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned … [her]self to … [her] injury.”
[136][2008] VSCA 260 at paragraph [3]
65 Indeed, I find that for the plaintiff, who is a very young woman, the prospect of being unable to continue full-time work in the future is a very significant consequence in and of itself.
66 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s mental disturbance or disorder are “severe” and thus satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
67 As set out above, I am satisfied that as a consequence of the transport accident which occurred on 22 October 2013, the plaintiff has suffered a “serious injury” in the form of a severe psychiatric injury, as that term is defined in the Act. The application is granted.
68 I will hear the parties on the question of costs.
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