Derengowsky v Transport Accident Commission

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-06-00745

MARLENE DERENGOWSKY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 39 January, 1, 2, 3 February 2010
DATE OF JUDGMENT:	4 June 2010
CASE MAY BE CITED AS:	Derengowsky v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2010] VCC 0494

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation – Transport accident – Multiple soft-tissue injuries – whether chronic pain disorder/fibromyalgia physical injury – psychiatric injury – adjustment disorder

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.R. Moore QC and	Henry Carus & Associates
Ms J.M. Forbes
For the Defendant	Ms K. McMillan SC and	Transport Accident Commission
Ms M. Britbart
HIS HONOUR:

Introduction
1 Eight years after a transport accident the Court is required to hear and determine an application for a serious injury certificate pursuant to s.93(4) of the Transport Accident Act (the Act).
2          The evidence upon which the matter is to be determined consisted of five affidavits in support sworn by the plaintiff, some financial records produced by the plaintiff and tendered by the defendant, video surveillance, the original claim for compensation under the Act, and a joint court book consisting of over 100 medical reports running to nearly 500 pages. Only the plaintiff was cross-examined.
The issues in the trial
3          The plaintiff opened the case on the basis of amended particulars of injury alleging injuries under s.93(17)(a) and (c) of the Act.
4          In opening, under limb (a) the plaintiff alleged a closed-head injury, injury to the jaw and to the temporomandibular joint (TMJ), and injury to the right and left knees. The plaintiff also alleged “an organically sponsored Chronic Pain
Disorder caused by injury to with sensitisation of the nerve pathways with the

consequence of heightened perception of pain in various body areas.” It was
this latter organic injury that the plaintiff ultimately relied on.
5          In addition, or in the alternative, the plaintiff relied on injury pursuant to s.93(17)(c), namely “a mental reaction to trauma which has been variously
categorised as an adjustment disorder with anxiety and depression with some features of a post-traumatic stress disorder. The non-organic injuries and consequences are essentially separately identified independent of the organic
injury consequences.”
6          The parties were able to narrow the issues for determination to some extent. The defendant put at issue whether or not the plaintiff had a closed-head injury which resulted in brain damage. The defendant accepted that the plaintiff had a TMJ disorder which at least in part was caused by the transport accident, but put in issue the consequences of the TMJ disorder. Further, the defendant disputed that the plaintiff had sustained any injury to her knee or knees as a result of the transport accident. The defendant disputed that the plaintiff suffered from an organic chronic pain disorder/syndrome.
7          In relation to s.93(17)(c), the defendant accepted that the plaintiff had an adjustment disorder with anxiety and depression, but disputed that it satisfied the test of a “severe” psychological or psychiatric disorder.
8          The defendant also put the plaintiff’s credit in issue.
The plaintiff’s evidence
9          The plaintiff has now just turned 59. She was born in South Gippsland, and grew up in Victoria. She moved to Sydney briefly, and in approximately 1977 moved to England, where she remained until she moved back to Melbourne in 1999. The plaintiff attained the equivalent of her VCE.
10        After completing school she worked at the National Australia Bank as a personal assistant, then in a stockbroking firm. Her passion was in printing, and she completed a printing apprenticeship as a compositor. She then obtained employment with a variety of newspapers, book publishers and media organisations, as well as doing freelance work. Between 1976 and 1991 she had her own graphics studio in London. She also worked as an in-house consultant with a number of British national newspapers, and became a graded journalist. In 1991 she took a break from the industry and commenced working as a taxi driver, and planned to purchase a business. She however continued to do freelance subediting work. She returned to Melbourne in 1999. She decided to pursue opening a graphic design business, but, in the meantime, to support herself, took the necessary examinations to qualify as a taxi driver.
11        The circumstances of the accident were set out by her. She was driving a taxi and was stationary at traffic lights, attempting to do a right-hand turn, when she was hit by a tram from behind. The impact spun her vehicle out of control and it travelled across four lanes of traffic before hitting a brick wall at approximately 50-60 kilometres an hour. The airbag was activated, but had deflated by the time the car hit the wall. She was unable to recall what happened at the time the car hit the wall, and she believes she lost consciousness and hit her head and chest on the steering wheel and her knee against the car. She says she injured her hands and arms during the accident, as she had them outstretched on the dashboard. She regained consciousness while still in the car, which at that stage was filling up with smoke. She was taken to the Box Hill Hospital, where she was admitted, and stayed there for approximately four hours.
12        In evidence was her original claim form which annexed the medical certificate provided by Box Hill Hospital. That certificate detailed her injuries as:
“Soft tissue injury – seat belting
– swollen/bruised (right knee)
– everywhere
– right first interdigital space
– bruised nose.”

She was given a certificate as unfit for work for two days.
13        She deposed that as a result of the injuries she sustained, “I experience
frequent headaches, numbness all around my head, pain all over my entire body, including in my neck, shoulders, arms, hands, head and eyes, blurred vision, pain and numbness in both hands, sleep disturbances, dental
problems, loss of concentration and memory, anxiety and depression.”
14        She states that at the time of the accident she experienced pain in her “arms,
neck, chest, ribs, head and face. I suffered a closed-head injury as a result of
the accident. I continue to suffer these symptoms to date.” She also says that she developed problems with her eyes, and over time began to experience severe headaches. Further, her face began feeling numb and both her upper and lower jaw began to ache.
15        She stated that she consulted her general practitioner regarding pain and depression, and was referred to a pain-management specialist, Dr Leonard Rose. Subsequently she was referred to neurologists Mr Rollinson and Mr D’Urso regarding her carpal-tunnel syndrome. She also consulted a dentist, Dr Tveosky, regarding problems with her teeth. She was referred to a psychologist, Mr Gilbert.
16        In her first affidavit she states that she has taken a variety of medications, including Tramal, Neurontin and occasional Panadeine Forte. She states that she has been diagnosed with having a carpal-tunnel syndrome. She wakes up in the night with pain in her arms, and finds difficulty using a computer. She also says that she has difficulty walking, and finds that her knees hurt when she walks long distances.
17        In the affidavit she states that her enjoyment of life has been impaired. Previously she enjoyed walking, sailing, travelling and attending art exhibitions, but since the accident she has had a significantly lowered level of interest in those recreational pursuits. She finds travelling almost impossible due to her inability to sit for, and walk for, extended periods. She finds it difficult to sit for long periods due to pain in her neck and back. She also says she has intolerance of light, causing problems looking at a computer screen for any length of time. She also has intolerance to sound, and she does not now enjoy going to operas. She finds difficulty concentrating, and her memory has been affected. She previously enjoyed books, but she has now disposed of most of her library.
18        She says in her first affidavit that she used to do paperwork and bookkeeping, but now she is unable to perform those activities and has to retain an accountant. She states she has difficulty retaining information. As a result of problems with her jaw she has difficulty eating, and now has to eat softer food. She says that she has lost her drive and interest in life’s activities, and now has a narrower circle of friends, as she no longer socialises or enjoys going out with them, and she has become reclusive.
19        She previously considered herself extremely career-driven, and enjoyed satisfaction from having her own business. She was attempting to establish a studio in Melbourne, but due to her injuries she has been unable to accomplish this. Her work involved long hours sitting in front of a computer, and that causes her too much pain in her neck, back and arms, and she now experiences severe pain if she types for more than 10 minutes, which has impacted on her ability to work.
20        Further, she states she suffers constant headaches that sometimes become debilitating migraines. Prior to the accident she was driving a taxi while developing her graphics studio, with the aim eventually to hire a driver to drive the taxi. Subsequent to the accident her ability to drive the taxi has been affected because of the pain caused by sitting for long periods of time in both her neck and back. She also experiences aching pains in her arms and wrists. She finds she cannot remember directions, and gets disoriented easily, and tries to only take local fares in the areas that she is familiar with.
21        Her domestic activities have been restricted. She cannot now change her bed linen without assistance, and has pain when putting out the laundry. Further, she has difficulty doing other domestic chores such as mopping floors and cleaning. When she does those tasks without assistance she is often in immense pain, days later.
22        She states that her mood has completely altered. Whereas previously she enjoyed all aspects of life, social, domestic and work, now she says she finds herself emotional and teary, and she gets easily irritated.
23        In her second affidavit sworn 22 July 2008 she elaborates on injuries that she sustained since the first affidavit. She is now suffering additional problems with her teeth. She was told that her teeth problems are being caused by consuming high levels of painkilling medications, and her teeth are crumbling, as well as the nerves, with the problem. She is on very substantial medication, as set out in paragraph 7 of that affidavit.
24        She outlines her business arrangements with her taxi, wherein she leased taxi plates for $2500 per month, and she met the cost by driving a number of hours to generate sufficient income to meet the costs. She indicates that in recent times she has been working 25 to 35 hours per week, as that was the extent of her ability. As at July 2008, however, she has had to reduce her hours of work because of her physical inability to drive the taxi, and her income has dropped. Around that time she says that she handed back the plates, but was hopeful of working on a limited business for other taxi owners. However, they demand a 12-hour shift, and she is unable to do that.
25        As a result of the problems driving the taxi, she indicates that she has decided to give greater attention to her future plans to operate her graphic-design business. Thus, she had upgraded the graphic equipment, purchased new computers, a modem, and an industrial embroidery machine, costing her approximately $110,000. She also received tuition in that software, but was only able to undertake two 1-hour lessons. She finances this business venture from moneys borrowed from her mother.
26        She swears that she has been caring for her elderly mother, who is aged 85, and who has a degenerative disease. She is classified as a carer by Centrelink, and receives a carer’s pension. Under cross-examination she indicated that she had not declared the pension, as she believed that it was not assessable, but her accountant has recently told her that it needs to be declared. She also states that she was retaining the services of a woman to perform household duties five or six hours per day for her mother, and also received assistance every four to six weeks from her former partner, Mr Collier, who is based in Brisbane.
27        In her further affidavit dated 27 March 2009 she confirmed that she continued to suffer pain in her neck, and pain upon movement. She states that she uses a back support when driving a taxi, and continues to suffer pain in her arms, and any jerking movement causes problems. She also gets pain in her wrists and hands. She has splints for her hands, which she wears at night. She suffers from painful teeth and jaw, and also gets earaches and pain into her sinus. She is limited in the type of food that she eats. She indicates that she continues to lease out a taxi for 12-hour periods. She pays 50 per cent of her earnings for the lease.
28        She swears that she is still having difficulty doing things around the home. She no longer has domestic assistance, and rarely vacuums. She indicates that she has put in place plans to operate her own business, purchasing a computerised machine and upgrading her own computer, and started to learn digitisation for the embroidery. She finds that a slow process. She was unable to properly operate the embroidery machine. She cannot sit for long periods to thread the machine, and has difficulty with pain in her neck and shoulders.
29        She continues to have disturbed sleep, and wakes most nights because of numbness. She is on regular medication consisting of Tramal, Topamax, and Edronax and anti-depressants. She also takes Panadeine Forte. She is seeing Dr Rose each six weeks, as well as Dr Holwill, her general practitioner, every six to eight weeks, as well as a dentist.
30        In her final affidavit she indicates that she still sees Dr Rose every six weeks. She was prescribed Edronax but has not taken that medication. She wears a splint for her jaw each night. She is also still on a diet of soft food. Her teeth are no longer causing significant pain, but she has jaw pain and associated earache. She wears splints some nights for her carpal-tunnel syndrome. She is still caring for her elderly mother. She is no longer driving her taxi, as she suffered a seizure on 29 October 2009. She also states she has given up attempting any work on the computerised embroidery machine: “I have just – feel too depressed and unmotivated.”
Cross-examination of the plaintiff
31        Under cross-examination, the plaintiff’s taxation records for the financial years (FY) 2000 to 2008 were put to her. Those records indicate that she had a net income from her taxi business of around $30,000 for FY 2001, $11,000 for FY 2002, and then losses of $10,287 and $16,706 for the two next FYs. Her losses in FY 2005 were $29,329, in FY 2006 $3,519, in FY 2007 $25,995, and in FY 2008 $26,142.
32        The plaintiff accepted that in FY 2006 she had been able to achieve revenue of $52,000, in 2007 $41,609, and in 2008 $46,239. She indicated that she was driving about 25 hours per week, but that it would only be very rarely that she would drive 30 hours per week. Prior to the collision she was driving between 60 or 70 hours a week, and possibly more than that. She denied that she had dropped her hours of work because she was on the carer’s pension, which she said she commenced in 2004.
33        Her BAS statements were put to her, which indicated that in FY 2003 she had graphic-design expenses of $21,457, in 2004 $17,430, in 2005 $24,722, in 2007 $41,710 expenses and $270,340 in capital items, and in 2008 $73,382 in expenses and $70,354 in capital. The plaintiff stated that she had not received any income from the graphic-design business, and her mother had financed that business. Her explanation as to why she felt confident enough to spend that amount of money was “Because I want to try and see that I can do it.” She conceded that she was confident enough to spend that amount of money because she thought the business was going to be a “goer”. That included spending money on an embroidery machine. She conceded that she continued to spend the money, notwithstanding that she was telling her examining doctors that she was unable to do the work for that business. She explained that she was in a lot of pain when she worked on the embroidery machine and on the graphics. She conceded that she may have done up to 10 hours a week, depending on how she felt.
34        The plaintiff was cross-examined on inconsistencies between what she had included in her TAC claim form and what she said were the injuries she had sustained in the collision. She conceded that there was no mention in the claim form of left knee, hip, neck or jaw injuries. She stated that the jaw and other problems commenced a few months afterwards.
35        Essentially, her treatment regime, once her teeth were fixed, is taking the painkiller Tramal. Although she had been recommended an exercise regime, she had been unable to do it, due to the pain. When asked to identify where she had pain, there was no part of her body that was not affected by pain. She gave evidence that she had pain in her face and it radiates through her nose, down through her neck. She also said she had pain at the back of her head, into her shoulders, arms, and hands, and in the middle of her back and her lower back. She said when she is sitting for a long period she gets pain in her hips and knees, and conceded problems started a few months after the accident. Similarly, the pain in her arms, neck, chest, ribs and face occurred a few weeks after the accident. She accepted that she currently sees three doctors, but over decent intervals. On her medication, she states that she is taking Tramal every day and takes Topamax every other day. She has a prescription for Edronax but has not commenced it.
36        Prior to the seizure she was driving 25 hours per week in the taxi, but since that time she is not driving. She is still caring for her mother without any assistance, such that she is now taking full-time care of her. Her mother is now nearly blind.
Video evidence
37        The defendant had video surveillance of the plaintiff taken on two days in August, and on three days in December 2006. It showed the plaintiff sitting in a taxi, attending to her make-up, appearing to clean the inside of the vehicle, and cleaning her shoes. She was seen walking, moving, she conceded, with no obvious sign of restriction. She was seen to exit the taxi and walk to the garden and smell the flowers, and then get into the taxi again. She was seen to open the door, go to the rear of the taxi and open the boot. She got back into the taxi and went to the back, and was seen to walk without any restriction. She agreed that on both occasions she was observed in the taxi she was walking and behaving in an unrestricted manner.
38        In the video filmed in December 2006, she was seen working or preparing to work in the taxi. At one stage she was seen to pick up a walking frame and place it into the back seat, and again on four occasions there was no restriction in the way she hopped into the taxi and hopped out of the taxi. It was put to her that she was walking without restriction, but she claimed that she was “waddling”. She conceded that she bent over to pick up things.

39        There was a further video shown, filmed on October 2009, which again she conceded showed her walking in an unrestricted, even brisk, manner. She was also seen to open the boot and lean over to put things in the boot without any restriction. She also got into the car without any restriction, refuelled the car without restriction, and at one stage when walking, stopped to smell the flowers.
40        In re-examination the plaintiff stated that her pain varies in level, depending on what she is actually doing during the day. She cannot walk quickly due to her knees and her hips. The pain is a lot worse if she gets in and out of the taxi. If she does things physically, it becomes excruciating.
Assessment
41        Before turning to consider the medical evidence, I note that the defendant made significant inroads on the plaintiff’s credibility in cross-examination and on the basis of the video evidence. The plaintiff in her affidavits complains of widespread pain, and confirmed this under cross-examination, and is recorded by medical examiners making the same complaints. At the same time, it was not in dispute, and evidenced on the footage, that she has been able to work up to 25 hours per week as a taxi driver until a recent seizure. The video also shows, as effectively conceded by the plaintiff, her walking and behaving in what appears to be a pain-free normal manner. As it emerged in her evidence, she had also in more recent times committed significant sums of money for capital items in her proposed graphics studio and in a venture in embroidery. In addition to these activities the plaintiff was also in receipt of a carer’s allowance for her elderly mother. The plaintiff was in the witness box for almost two hours and did not appear in pain.
Medical evidence
42        Despite the tens of medical reports in evidence, the Court was not taken to all of them, or in relation to some, in any detail. This was understandable, given that the plaintiff, in closing, narrowed her claims under limb (a) of the definition of “serious injury” to a physical injury not specific to any particular body part, namely “an organically sponsored Chronic Pain Disorder caused by injury to with sensitisation of the nerve pathways”. This, it was submitted, was identified by Dr Blombery and supported by other medical evidence. The issue as framed by the defendant, however, was that the chronic pain disorder/syndrome claimed by the plaintiff was not of an organic origin, and that her complaints of pain ought to be considered under her limb (c) claim. It was the defendant’s submission that whatever might have been the extent of any organic injuries suffered in the original collision they had well and truly been overtaken by a psychological/psychiatric response, and in particular a chronic pain disorder/syndrome.
43        The plaintiff’s claim under limb (a) commences with a report of Dr Jennifer Harmer, consultant physician and rheumatologist, dated 30 August 2002, to whom she was referred by her local general practitioner complaining of ongoing pain in her neck into her shoulders, associated with headaches and sleep disturbance. The plaintiff reported to the examiner that she had returned to work due to financial pressures and is finding driving difficult for any prolonged period.
44        On examination, the examiner found no focal neurological signs, but some soft-tissue tender points. The assessment was “Marlene’s ongoing pain
appears to be more of soft tissue musculotendinous origin and clinically I felt
she had some features of fibromyalgia syndrome.” Dr Harmer reported again on 21 November 2005 when she stated that the plaintiff had “continued to suffer from widespread pain with features of chronic pain syndrome” (all emphases added). The examiner noted again that she had continued trying to work as a self-employed taxi driver. She also noted that she had suffered from a carpal-tunnel syndrome.
45        Mr D’Urso reported on 6 October 2004 that x-rays performed in August 2004, of the cervical, thoracic and lumbar spine, were normal, as well as a CT scan of the lumbar spine. He noted that “Marlene has clearly been very thoroughly
investigated for her symptoms and there is no evidence of any significant injuries which have become apparent. ... In regard to a lot of her symptoms they are probably soft tissue in nature, I think Marlene probably does have an element of post-traumatic stress disorder as well as post-concussion
syndrome”. In a later report dated 22 November 2006 this neurosurgeon noted that she “has sustained soft tissue injuries as a result of the motor
vehicle accident. She has developed a widespread pain syndrome since her accident. She has also developed carpal-tunnel syndrome. It is plausible that the carpal-tunnel syndrome may be related to injuries that occurred to the wrists. It would appear that Marlene has an element of adjustment disorder
related to the accident and possible post-traumatic stress disorder”. He described that she had sustained disability, but this was of “a moderate nature”.
46        The plaintiff was referred to a staff specialist rehabilitation physician, Dr Nathan Johns. He saw her in June 2005 and reported that at that time she was under the care of the Melbourne Pain Clinic as well as a pain doctor, a clinical psychologist, and a psychiatrist. He noted that she was currently self- employed as a taxi driver. His assessment was “I feel that her main problem is
a chronic pain syndrome exacerbated by her adjustment disorder with lowered
mood, mild traumatic brain injury, and outstanding medico-legal involvement”. He also referred to her having developed a left carpal-tunnel syndrome. He suggested that she would benefit from a multi-disciplinary chronic-pain program.
47        The plaintiff was assessed by Prof S. Davis, neurologist, on 8 June 2005. She told him at that point she was not having any specific therapy, and takes analgesic therapy, including Tramal and Neurontin. He noted that the various investigations were essentially unremarkable, and his conclusion was “She
has had a significant soft tissue injury to the cervical spine and radicular type pains in the arms. There are no objective signs. She has a very diffuse chronic-pain syndrome reflecting soft tissue injuries but particularly important
magnification or amplification by psychological/psychiatric factors.” His prognosis was “Her condition is compounded by a chronic, diffuse pain
syndrome which makes precise assessment difficult. However, there is no
sign of significant brain injury.”
48        He assessed the plaintiff again on 2 March 2007. He confirmed his findings, and added that she has numbness and tingling and bilateral carpal-tunnel syndrome, as diagnosed by Mr D’Urso. He found no impairment for brain injuries, and said “Psychological or psychiatric features are dominant in her case with a very diffuse pain syndrome”. He confirmed the earlier prognosis.
49        On behalf of the defendant the plaintiff was assessed by Mr Michael Dooley, a well known orthopaedic surgeon. In his report dated 8 June 2005 he found soft-tissue injuries to the cervical and lumbar-spine region: “Most likely these
injuries have involved musculo-ligamentous damage and some aggravation of age-related degenerative disc disease. While these injuries do account for
some of Ms Derengowsky’s ongoing spinal pain, the constancy and intensity of her ongoing pain does seem to be out of proportion to the injuries sustained. She has undergone a wide range of treatment and has been extensively assessed from a rehabilitation and psychological point of view. I believe that the ongoing treatment for her in this regard is a regular low-impact
exercise and fitness program.”
50        In a later report dated 31 July 2007, prepared after he had examined a volume of medical material detailing the plaintiff’s complaints in the period immediately after the accident, he opined that if the plaintiff had sustained soft tissue damage to the lumbar spine then he would have expected her to have complained about the symptoms within twelve months after the accident. Such complaints were not mentioned in the various medical notes which had been provided. He confirmed that he was describing in his first report a chronic pain syndrome, and that that was in part responsible for restriction of motion demonstrated on clinical examination.
51        Mr Dooley examined her again on 8 October 2009 and confirmed his earlier diagnosis, and concluded that surgical intervention in relation to her knees was not appropriate, and said “This risk is especially real in a situation where
a patient has developed a chronic pain syndrome following their injuries. In my view Ms Derengowsky has developed a significant psychological reaction in response to her injury and/or pain. In my view one cannot explain the
consistency and intensity of her ongoing pain nearly eight years following the
episode on the basis of organic injuries alone.”
52        He found that she was not deliberately exaggerating her symptoms, and that she was working 25 hours per week as a taxi driver and “does some graphic design work”. He said “I believe that Ms Derengowsky will continue to note
some intermittent cervical spine, lumbar spine and bilateral knee pain. I would

not expect her symptoms to deteriorate in time.” He did not suggest any
further treatment.
53        The plaintiff was examined by A/Prof Richard Stark, neurologist, on 13 June 2006. He noted that she was complaining of pain all over her body, worse with activity, and that she had seen a psychiatrist, Dr Holwill, and a psychologist, and was working from 15 to 25 hours a week intermittently. Her main worry was “the diffuse pain”. He found that the plaintiff had suffered a blow to the head, resulting in a brief period of post-traumatic amnesia. He found in those circumstances one would not expect “significant organic brain injury, and one
would not expect ongoing symptoms arising from organic brain injury. This lady does report a number of ongoing difficulties with cognitive function, but I believe that this can be attributed to psychological factors, rather than organic brain injury. To complicate matters further, she has developed a diffuse pain syndrome of a type that might be termed a form of fibromyalgia. This symptom complex no doubt contributes to her cognitive difficulties through a number of
mechanisms, including the requirement for analgesic medication.” He suggested that her generalised pain syndrome should be treated symptomatically. He further said that “Both physical and psychological factors contribute to her current state.”
54        He examined her again on 19 June 2008 and stated that his views were unchanged. He said that the plaintiff “has developed a diffuse pain syndrome of a type that might be termed fibromyalgia.” He said, however, and the defendant relies on this: “She continues to complain of multiple symptoms.
I do not believe that there is any clear underlying diagnosis other than diffuse
pain syndrome.” He went on, “The term ‘chronic pain syndrome’ is to some
extent unhelpful as it simply describes a situation of substantial perceived pain which seems to be greater in extent than would easily be explained through direct organic injury. This situation probably reflects a combination of organic
and psychological factors.”
55        The plaintiff was seen by a veteran orthopaedic surgeon, Mr M.A. Khan. In his report dated 26 July 2006 he had access to an extensive number of reports. The plaintiff told him that she continued to have pain in her neck, headaches, and pain in the back. She also told him she had a suspected carpal-tunnel syndrome with pain in both hands. She was also working part-time as a taxi driver. She reported pain diffusely in her left leg. The examiner notes:
“Presently she continues to have pain in her neck going down to both arms. The left arm being worse than the right. She has pain in the lower part of the back, and ache and pain down the left foot and leg diffusely, not along any anatomical dermatome. She is getting intermittent attacks of pain going through the fingers, up to her neck, affecting her forearms, upper arms, shoulders, jaws and occipital region of the scalp.
This is a typical manifestation of severe whiplash-injury syndrome which is due to the multifocal nature of her injury affecting the soft tissues and intervertebral and as well as facet joints of her neck and lower back. ... She has sustained a severe psychological aspect of her injury which has been dealt with by the psychiatrist.”

56        He goes on to state: “The long-term prognosis is guarded in view of the
multifocal physical trauma and the psychological aspect of her injury with memory of the shock of the accident which still bothers her. The psychological aspect of her injury has been addressed by a psychologist and psychiatrist, and is outside my field of expertise. In my opinion she has been left with partial/permanent impairment of function on account of the residual after-
effects of her injury resulting in chronic pain.”
57        The plaintiff’s history to Mr Khan includes injury to the back. In this respect, it is inconsistent with the reports considered by Mr Dooley in his second report.
58        The plaintiff was seen by Mr Kenneth Brearley, consultant general surgeon, on 14 March 2008. He had been provided with an extensive array of medical reports. The plaintiff described her major problem as continuing constant pain in the back of the neck radiating into the jaws and to the front of the face. She also had headaches and variable pain on the top of the shoulders, and discomfort or pain in the lowermost part of the back, and similarly in the knees. She was working part-time taxi-driving.
59        His assessment was that the plaintiff had suffered, inter alia, severe soft- tissue injury of the neck, and injury to both knees. She had also suffered bilateral carpal-tunnel syndrome. He said:
“The basis of her current condition is organic injury to the various regions referred to. There are specific organic injuries and in particular injury to her neck which continues to cause severe symptoms. It is as a result of this pain, and pain in other areas as described above she has developed significant anxiety and an adjustment disorder. Her symptoms are more severe than would be expected at this time following the accident but nevertheless there has been a very reasonable organic or physical basis for her complaints. The accident was a severe one and all of the injuries she refers to are compatible with the severe impact which occurred when the taxi in acceleration mode struck the brick wall.
It has been stated that she has a chronic pain syndrome by reason of the fact that she is continuing to have symptoms at this time. Individuals vary in their response to injury, and it is my impression that her symptoms are fundamentally organically based. Had the accident not occurred, there is no likelihood that she would be in her present situation and therefore the relationship between her present state and the accident is direct.”

Consideration
60        Before moving to consider the competing reports of Drs Blombery and Thomas, I note that the reports that I referred to above are virtually unanimous in finding that there were non-serious soft-tissue injuries to the plaintiff’s cervical spine. She also complained of back injury and injury to the knees. There is a clear issue as to whether in fact she suffered any low back injury in the collision. The examiners, however, referred to the development of a chronic pain syndrome with diffuse pain. Some of the examiners referred to fibromyalgia syndrome. Mr Brearley refers to “severe soft tissue injury of the neck”. Mr Khan refers to “severe whiplash injury syndrome”. Mr Dooley is prepared to concede that while the injuries accounted for some of the plaintiff’s ongoing pain, the pain seems to be out of proportion to the injuries sustained, and his report of a chronic pain syndrome is consistent with that of Mr Khan. That is also the virtual consensus of the other examiners as set out in the emphasised passages above.
61        The various investigations such as x-rays and MRIs do not indicate any serious injuries, and that appears to be the weight of the clinical opinion of examiners other than Messrs Khan and Brearley. In relation to these latter two examiners, as submitted by Ms Britbart in reply, they premise their views on a wide range of physical injuries, not specific to any body function included in the limb (a) claim finally pressed by the plaintiff.
Reports of Dr Peter Blombery
62        The plaintiff was examined by Dr Peter Blombery, consultant physician (vascular disease), on 8 February 2007 and 26 February 2009. In the first report his opinion was that in the accident “she sustained quite severe soft
tissue injuries which have triggered the development of a chronic pain syndrome affecting the arms, neck and low back. In addition she has developed bilateral carpal-tunnel compression of the median nerve. ... Her primary problem is the generalised chronic pain syndrome that she has, or fibromyalgia. This is due to non-specific sensitisation of pain nerve pathways,
both in the periphery as well as in the brain and spinal cord, such non-painful stimuli become interpreted by the cerebral cortex as being painful. Such a chronic pain syndrome is an organic disorder and not a psychological one. There is often, however, secondary anxiety or depression which develops as

a consequence of the pain and tends to enhance the experience of pain.”
He agrees with the diagnosis of Dr Harmer made in 2002 and 2005.
63        In his second report he confirms that she has “ongoing features of a
widespread fibromyalgic disorder where there is non-specific sensitisation of
pain nerve pathways.” He found her prognosis extremely poor. He was referred to an unnamed medical reference relating to whiplash injury and fibromyalgia. He said “It is fibromyalgia which Ms Derengowsky has. Such a
chronic pain syndrome is undoubtedly an organic disorder of pain nerve pathways with sensitisation of these pathways. In regard to the psychological
component, a disorder such as depression will tend to make the experience of
pain worse but in Ms Derengowsky’s case, I do not feel this is making a
significant contribution to her overall experience of pain.”
64        He concludes, “It is unfortunate that the term chronic pain syndrome is
presented, according to some in the medical profession, as being purely a psychological disorder, as it is a term used by some psychiatrists for patients who have not pain pathway sensitisation but purely a somatoform psychiatric disorder. I therefore tend to use the term ‘non-specific pain syndrome’ or ‘myofascial pain syndrome’ rather than chronic pain syndrome to differentiate
these disorders. This, however, is a matter of semantics.”
65        In this report Dr Blombery refers to the plaintiff working one day per week driving a taxi for a few hours per day, and she has been doing this “since September 2007”. The defendant highlighted this statement, which is what the examiner appears to have recorded from a history provided by the plaintiff. The plaintiff’s evidence, however, was that she was driving around 25 hours per week. Mr Moore submitted that this must been seen as an error in the report. The defendant submitted that it undermined the report because it provided the basis for a pessimistic prognosis. Thus the report goes on: “She has a very significant ongoing disability and is only able to work one day per week, if that. It is my opinion that she will not be able to work increased hours in the future because of the ongoing and widespread pain syndrome she has.”

66        Dr Blombery was not called for cross-examination. While I accept that the other histories given by the plaintiff around that time are that she was driving a maximum of 25-30 hours per week, the misstatement in this report does distort the report in that it does provide a pessimistic conclusion, which is more pessimistic than that of Mr Brearley who opines that “in the very long term there will be some improvement,” and of Mr Dooley who is not so pessimistic.
67        The plaintiff relies on the reports of Dr Blombery as identifying an organic injury or disorder leading to pain and suffering and pecuniary loss consequences that ought meet the “at least very considerable” test required under Humphries v Poljak [1992] 2 VR 129 at 140.
Dr Clayton Thomas’ reports
68        The defendant urged the Court not to accept the reports of Dr Blombery, and relied on reports from Dr Clayton Thomas, consultant in rehabilitation and pain medicine. He had been provided with extensive information by the defendant. Upon his examination he found that the plaintiff complained of pain involving the whole of her head. She also complained of pain to the neck and jaw, shoulder, knees, and her feet, but this had subsided. The plaintiff reported to him that she was driving a taxi between 10 to 25 hours per week, and she had difficulties walking her dog for long distances, and slept poorly. He found that she had normal mobility and had “diffuse and widespread tenderness”. There was no focality to her tenderness. He reviewed reports of various imaging indicating that early x-rays were normal, an MRI showed no significant impingement, and an MRI of the lumbar spine on 10 October 2005 was normal. His conclusion must be set out in full:
“Diagnostically she complains of diffuse and widespread pain and by definition she has a diffuse and widespread pain syndrome. There does not appear to be any organic basis for the complaints that she has.
She has strong illness convictions and beliefs.
Psychological factors predominate.
She needs to be told in unambiguous terms that the nature of her condition is not sinister and that inactivity will only worsen her by the promotion of her deconditioning syndrome.
She reports she is able to perform activity but these activities aggravate her pain.
The nature of her problem is not degenerative and there is no evidence of post-traumatic degenerative changes at any level.
Conservative treatment is entirely appropriate and there is no need to consider operative intervention. Operative intervention will not be required even into the longer term.
The plaintiff continues to work. She limits her work from week to week pending her overall feeling with respect to her pain etc.
I cannot see why she cannot continue to work as a graphic designer as she tells me she continues to do.
She reports a disability which is excessive and certainly I can see no reason why she is not able to participate in all full domestic and leisure activities.
You have asked me to separate the organic and non-organic contributions to her condition and overall my response to this is to indicate that I am not able to determine what, if any, organic condition is present and therefore can only conclude that the vast majority of her condition is contributed to by non-organic factors.
This is clearly a case in which non-organic factors dominate. There is no focality to her condition.
The nature of her condition is best defined by a psychiatrist and they would normally call this a pain disorder.”

69 In a further report dated 18 March 2009 Dr Thomas had been provided with an article referring to “chronic pain after whiplash injury and in fibromyalgia”. He accepted that both conditions are in existence, and that they can be diagnosed primarily through clinical grounds and clinical assessment:
“Both of these conditions do not have investigations which confirm the diagnosis, but rather the history and examination confirms the diagnosis. ... Ms Derengowsky complains of diffuse and widespread pain. She has tenderness in all areas of her body. The diagnosis of whiplash and associated disorder and fibromyalgia is in contrast to this. In these conditions there are quite defined tender points. ... [He refers to his previous report] Her condition therefore does not meet the criteria of being a whiplash injury or being a fibromyalgic type problem.”

70 He referred to his earlier report, stating:
“I did not state that there was nothing wrong with her. I accept that she does have a pain problem. The non-organic aspects were dominating and what if any organic component was not visible as a result of the severity of the non-organic aspects. When someone presents with tenderness which is all encompassing, it is simply not possible to determine what if any underlying organic problem is present. In her case I noted that all imaging was normal. I noted that there appeared to be significant psychological problems. Although I am not an expert in psychiatry, the type of patients I treat in a clinical setting often have significant problems of a psychological nature and therefore I think I am able to straddle both organic and non-organic areas. ... Pain physicians are certainly well and truly aware of the phenomena of central sensitisation that occurs, but I do not think you can link the client Ms Derengowsky with the subjects that have been referred to in that particular article.”

71 In his final report he took a full history. The plaintiff again reported “diffuse pain symptoms”. He confirmed that the plaintiff:
“... is suffering from a diffuse and widespread pain syndrome. She has a pain disorder. The chronic pain syndrome that she does have does not fit in with any well-recognised pain syndrome. She does not suffer from carpal-tunnel syndrome.
I have no doubt that Ms Derengowsky has diffuse and widespread pain. I have no doubt that she perceives pain on a daily basis. With the information and investigations we have available currently, there is no way of determining what if any underlying organic problem contributes to her pain disorder. There are a number of diffuse and widespread pain syndromes present. Fibromyalgia is a common problem. The disability, however, varies enormously from those who have a mild disability to those who have a severe disability. The degree of disability varies therefore from individual to individual within patients who have widespread pain syndrome. She continues to work part-time doing some graphic design work. This is reasonable for her.”

Consideration
72        Before turning to consider the competing psychiatric evidence, I again pause to note the burden of the medical reports that I have referred to, and their consistency with Dr Thomas’ conclusion. First, physically, the various investigations of the plaintiff do not appear to show any serious musculoskeletal injuries. Rather, apart from a report from Prof O’Donnell, orthopaedic surgeon, suggesting further investigations and possible knee surgery, the various reports do not suggest further investigations, and refer to soft-tissue injuries.
73        Thus, the general practitioner Dr Maragoudakis, in a report dated 22 March 2004, noted that despite various investigations they have “unfortunately not disclosed any SPECIFIC diagnosis” (original capitalisation).
74        Prof Davis in a report dated 2 March 2007 noted that “There are no objective
signs. She has a very diffuse chronic pain syndrome reflecting soft tissue injuries but particularly important magnification or amplification by
psychological/psychiatric factors.” Mr D’Urso, in a report of 22 November 2006, noted that she has “no serious injuries”. A/Prof Stark, in a report dated 19 June 2008 says “She continues to complain of multiple symptoms. I do not
believe there is any clear unifying diagnosis other than a diffuse pain
syndrome.” Mr Dooley refers to her injuries as soft-tissue injuries to the cervical and lumbar spine region. He says: “While these injuries do account
for some of Ms Derengowsky’s ongoing spinal pain, the constancy and intensity of her ongoing pain does seem to be out of proportion to the injuries

sustained.” This report is thus in similar terms to that of Prof Davis, Mr D’Urso
and A/Prof Stark.
75        I have noted that Mr Khan, in his report dated 26 September 2006, refers to “severe soft tissue or musculoskeletal injury to her cervical spine”. He notes, however, that she does complain of pain to the left foot and leg diffusely, “not along any anatomical dermatome”. He says that her pain complaints are “a typical manifestation of severe whiplash injury syndrome which is due to
the multifocal nature of her injury affecting the soft tissues and intervertebral
as well as facet joints in her neck and lower back.” He goes on, however: “She
has sustained a severe psychological aspect of her injury which has been
dealt with by the psychiatrist.”
76        Mr Brearley does refer to soft-tissue injuries to the neck and both knees as well as carpal-tunnel syndrome. He does, however, state that as a result of the pain in the neck and other areas “she has developed a significant anxiety
and an adjustment disorder. Her symptoms are more severe than would be expected at this time following the accident but nevertheless there has been a very reasonable organic or physical basis for her complaint. The accident was a severe one. ... It is my impression that her symptoms are fundamentally organically based. ... I believe that her symptoms are entrenched and will
continue for the foreseeable future.”
77        Thus, while Mr Brearley and Mr Khan referred to the plaintiff having severe physical injuries, the consistent theme of the other examiners is that the physical injuries were not and are not serious, and that they are accompanied by significant amplification of the reported pain. This theme of the medical reports has been evident from early days when Dr Lester Walton, consultant psychiatrist, in his report dated 19 September 2002, said: “This woman is
currently prevented from resuming full-time work mainly because of her pain but the psychological symptoms are relevant to the extent that they may be
contributing to an amplification of her subjective experience of pain.” Similarly, an early occupation physician, Dr Gary Davison, on 27 September 2002 noted myofascial pain syndrome due to “some pain amplification”.
78        It is in this context that the weight to be attributed to the diagnosis of Dr Blombery is to be evaluated. In circumstances where the plaintiff is claiming that she is suffering diffuse pain, and where an experienced medico- legal consultant such as Dr Thomas is unable to determine “what if any underlying organic problem is present”, is it appropriate to accept that Dr Blombery has a diagnosis that others have missed? Mr Moore sought to support Dr Blombery’s conclusion with that of Dr Harmer, who in her first report states that “clinically I felt she had some features of fibromyalgia syndrome.” By 21 November 2005, the description was that of “widespread pain with features of chronic pain syndrome”. This was in the context of multiple normal investigations. I do not accept, as submitted, that this ought be inferred as a reference to her earlier assessment, particularly in circumstances where there had been multiple investigations.
79        Next, Mr Moore relied on A/Prof Stark in his report of 13 April 2006. He submitted that his diagnosis of a diffuse pain syndrome of a type that “might be termed a form of myalgia” was such that, if he was of the view that it was other than organic, “he’d be saying so”. In fact, in the same report he did say that “there are both physical and psychological factors contributing to her current condition.” In the report he said “the term chronic pain syndrome is to
some extent unhelpful as it simply describes a situation of substantial perceived pain which seems to be greater in extent than would easily be explained through direct organic injury. This situation probably reflects in most
cases a combination of organic and psychological factors.”
80        Thus, A/Prof Stark, on whom the plaintiff relies, clearly is of the view that, whatever condition the plaintiff had, there were both physical and psychological factors contributing. Indeed, Dr Blombery is, to some extent, of the same opinion, as he concedes in his report referred to above at [63], that there is often “secondary anxiety or depression which develops as a consequence of the pain and tends to enhance the experience of pain.” Thus, while Dr Blombery diagnoses an organic condition, fibromyalgia, he accepts that there are associated with it, psychological factors. This is not inconsistent with the conclusions of Dr Harmer and A/Prof Stark.
81        While Dr Blombery accepts that there are psychological factors associated with the organic condition which he alone diagnoses, he does not grapple with the significance of those psychological factors nor address the weight of the medical examiners’ conclusions on this issue. On the contrary, he asserts as a conclusion that in the plaintiff’s case, “I do not feel this (the psychological
component of depression) is making a significant contribution to her overall
experience of pain.”
82        In this respect Dr Blombery is against the weight of medical opinion. Thus, examiners such as Mr Dooley, Mr Khan, Mr Brearley, A/Prof Stark, Prof Davis and Mr D’Urso all point to the important role of psychological/psychiatric factors. In this respect, that evidence is at one with the opinion of Dr Thomas who, while not disputing that there may be some organic condition present, cannot determine what, if any, underlying organic problem contributes to her pain disorder. Mr Moore submitted that effectively Dr Thomas was sitting on the fence in relation to whether or not the plaintiff had fibromyalgia. I do not read his report that way. Rather, he is attempting to respond to the question as to what is the proper diagnosis of the complainant’s condition. In his second report noted above he did not accept that the plaintiff had fibromyalgia. His overall conclusion was, as set out above:
“The non-organic aspects were dominating and what if any organic component was not visible as a result of the severity of the non- organic aspect.”

83 His conclusion that he was unable to identify any organic component, and that non-organic aspects were dominating, is in my opinion clearly consistent with those examiners that I have referred to above who too have identified chronic pain not consistent with any organic injury. In this respect Dr Thomas is addressing an issue that Dr Blombery, who concedes that the organic condition he identifies may be associated with psychological factors, does not. In so far as Dr Blombery is of the opinion, expressed as a conclusion, that the psychological component is not making “a significant contribution to her overall experience of pain”, then in my opinion Dr Blombery is out of step with the burden of the physical medical practitioners that I have referred to above.
Application of Richards v Wylie (2000) 1 VR 79
84 Both parties accepted that the principles espoused in Richards v Wylie at [16], [17], [24] and [28], which are not applicable in relation to proceedings under the Accident Compensation Act, are applicable in this application. This requires a consideration of what was set out at [28] as follows:
“It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff’s condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered.”

85        Pausing at this stage, without considering the psychiatric medical opinion, I am satisfied that the dominant cause of the plaintiff’s condition cannot be encapsulated in the opinion of Dr Blombery. I do not accept, as submitted, that despite the three reports of Dr Thomas, this leaves “the diagnosis of fibromyalgia alone and separate.” Such a finding could only be reached after setting aside the opinions of physical examiners who, while using various descriptors in the emphasised extracts above, concluded that whatever physical injuries the plaintiff may have suffered, she was, upon examination, suffering from a chronic pain syndrome which those examiners said effectively was the dominant cause of her presentation. In this respect I find the opinion of Dr Thomas compelling, and is consistent with that of specialists such as Prof Davis, Mr D’Urso and A/Prof Stark. He is well qualified, on the basis of his experience, to express the opinion, and his opinion grapples with a dimension of Dr Blombery’s diagnosis in which Dr Blombery himself, without referring to any intermediate facts or to the opinions of the physical examiners, does not. Without addressing in detail the psychological/psychiatric dimension, he merely concludes that it is not making a significant contribution to her overall experience of pain.
The psychiatric evidence
86        Before reaching a final conclusion on the issue of the plaintiff’s limb (a) injury, I turn to consider the psychiatric evidence. I do this in the context that the plaintiff’s limb (c) condition was described as “an adjustment disorder with anxiety and depression with some features of a post-traumatic stress disorder”. The defendant did not dispute that the plaintiff had suffered a psychological reaction, but submitted that her adjustment disorder did not meet the test of “severe” imposed by the legislation.
87        The plaintiff relied on a report from a psychologist, Mr Thornton, who on 30 April 2002 diagnosed post-traumatic stress disorder, adjustment difficulties, and pain disorder associated with psychological factors and a general medical condition. Another psychologist, Mr Gilbert, in a report dated 4 March 2004, stated that her condition and the resulting limitations “is almost entirely dependent on her physical condition”. He repeated this proposition in a report dated 11 March 2008, without providing any specific diagnosis.
88        In a report dated 9 July 2004 Mr George Foenander, clinical psychologist, diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood as a reaction to her pain and closed-head injury. He also said she had a chronic pain disorder due to a medical condition.
89        At around the same time, on 13 March 2004, Dr Brendan Holwill, consultant psychiatrist, examined the plaintiff and found a presentation “with evidence of significant depression and an acquired brain injury”. His initial clinical diagnosis was of “moderately severe depression associated with an acquired
brain injury and possible frontal lobe syndrome. There are some elements of possible post-traumatic stress disorder but insufficient symptomatology to

make a formal diagnosis at the initial assessment.” He referred the plaintiff to
the Melbourne Pain Clinic and to Mr Foenander.
90        On 14 July 2006 Dr Albert Kaplan, psychiatrist, found that the plaintiff “has
developed an adjustment disorder with mixed anxiety and depressed mood (reactive depression and anxiety) as a result of her accident, her injuries, her chronic pain and the impact her pain has had upon her ability to lead her normal lifestyle. She has as a consequence, become demoralised and her

self-esteem has been damaged.” He went on, “She is likely to remain
depressed and anxious as long as she remains disabled and is unable to

resume her normal lifestyle.” Her capacity for employment “would be largely
determined by her physical condition.”
Reports of Dr Weissman
91        This psychiatrist examined the plaintiff on four occasions, and the defendant placed great reliance on his reports.
92        In his first report dated 8 June 2005 he found that the plaintiff has “relatively
mild post-traumatic stress and anxiety symptoms, and a mild post-traumatic stress and anxiety syndrome. She does not have a full blown post-traumatic stress disorder in my view. ... She has a number of depressive symptoms. Diagnostically, she has a mild to moderate (closer to moderate) Adjustment Disorder with depressed mood and mixed emotions. This is secondary or
reactive depression.” He said the main diagnosis in this case was that “of a
chronic pain syndrome. She is markedly preoccupied with her pain, pain
focused, and exhibits a degree of pain behaviour.” He described the plaintiff’s prognosis as fair, and that she was probably partially incapacitated for her pre-injury duties.
93        In his next report dated 30 November 2006, after reviewing a large volume of medical reports, he confirmed that:
“... the main diagnosis in this case, as I stated last time, is that of a chronic pain disorder/syndrome. I am not stating there is no organic basis to explain her pain. This is outside my area of expertise. I am simply stating that there are likely to be psychological and functional factors amplifying her perception, sensation and experience of pain. She appears to be very pain- focused and preoccupied. ... The claimant is still suffering from a mixed reactive depressive syndrome. As mentioned, her affect was not consistent with a Depressive or Anxiety Syndrome, but she nevertheless reported moderate reactive symptoms. It is hard to know what to make of this discrepancy. On the balance of probabilities, I am still prepared to state that she is suffering from an Adjustment Disorder with Depressed and Anxious Mood, although the exact severity is not completely clear to me.”

94        He went on to say she has some residual post-traumatic stress disorder symptoms. He went on to describe the prognosis as being “fairly good”, but the major problem seems to be her “entrenched chronic pain syndrome”.
95        In his further report dated 14 May 2008 he again confirmed the claimant’s “pain focus and preoccupation”. He also confirmed that she had a chronic pain disorder or syndrome, and found again that she had a chronic adjustment disorder with depressed and anxious mood, and again, “the exact severity of this psychiatric condition or mental injury is not completely clear to me.” He found the prognosis as “most probably one of continuing mixed depressive and anxiety symptoms and features, with an entrenched pain syndrome.”
96        In his final report dated 11 January 2010 he confirmed his May 2008 assessment that the “prominent diagnosis in this case is that of a chronic pain disorder or syndrome.” He was still unable to assess the exact severity of the chronic adjustment disorder with depressed and anxious mood. He was also of the view that he did not think that any psychological treatment or anti- depressant medication would assist her at that point in time. Further, he was of the view that, from a psychiatric position, she seemed to be able to work at least 25–30 hours per week as a taxi driver. He again confirmed a mismatch between the reported symptoms and the observed signs on examination.
97        I interpose at this point to note that over four examinations, Dr Weissman, a psychiatrist, comes to a virtually identical diagnosis to that of the pain specialist, Dr Thomas, who has seen her thrice. Both do not dispute that there may be some organic basis to explain the plaintiff’s complaints of pain, but conclude a pain disorder is predominant. Their common conclusions are similar to that of Prof Davis who in his two reports referred to above, found that “psychological or psychiatric features are dominant.”
Dr Kaplan agrees with Dr Weissman
98        In a report dated 21 December 2006 Dr Kaplan had been provided with Dr Weissman’s report dated 30 November 2006. He found that Dr Weissman’s diagnosis of adjustment disorder and some residual post- traumatic stress disorder appeared to be largely consistent with his opinion of 14 July 2006. He then quoted Dr Weissman’s conclusion that the main diagnosis was that of chronic pain disorder/syndrome, and went on: “Pain
disorder is, in part, a diagnosis of exclusion. If Ms Derengowsky’s chronic pain is deemed by the appropriate specialist, such as a rheumatologist or orthopaedic surgeon, to be partly or entirely of non-organic origin, then a diagnosis of Pain Disorder would be appropriate in addition to the other
diagnoses.”
99        I infer from this that Dr Kaplan, like Dr Weissman, is prepared to regard that disorder as a psychiatric diagnosis if it is held to be “partly or entirely of non- organic origin” by appropriate specialists.
Reports of Dr Barrie Kenny
100       This veteran medico-legal consultant psychiatrist had examined a vast amount of material for his reports to the plaintiff’s solicitors. In his first report dated 7 May 2008 he first found that the accident itself “was obviously a physically traumatic experience and a psychologically traumatic experience.” He found doubt as to whether the plaintiff suffered from actual concussive injury, but “it seems that she has suffered persistent physical symptoms since
that time; her neck; her back; her hands and headaches which cause her considerable distress; greatly reduce her stamina and her enjoyment and
quality of life”.
101       He was unable to say due to his expertise as to whether her dental problems and TMJ problem were related to the accident. He then notes that her more significant problems are psychiatric/psychological. He diagnosed her as having a “typical moderately severe post-traumatic stress disorder.” He also diagnosed her as having an “Adjustment Disorder with depressed mood at a moderately severe level.” He found that the symptoms of those two conditions were “very significant and have a great affect on her quality and enjoyment of life.”
102       Dr Kenny then sought to address the issue of Chronic Pain Syndrome. He says that he did not like using that term, and described it as simply a clustering of symptoms “which have at their essence chronic pain.” He went on:
“I am of the view that it is more appropriate under these circumstances to talk in terms of persistent pain with an adjustment disorder in response thereto.
Chronic pain disorder is a clear psychiatric syndrome in which it is considered to be clear that there are psychological factors accentuating the condition. It seems to me that people use the term ‘chronic pain syndrome’ when there is doubt about whether there is an organic basis for the symptoms.
I simply don’t think that is appropriate in this sort of situation. After all it is common experience to note that soft tissue injuries often produce quite long-term symptoms and don’t really respond well to treatment.
That does not, in my view, necessarily mean they are psychological or even significantly maintained by psychological factors.
Chronic pain syndrome is not a psychiatric diagnosis.”

103 He concluded:
“So I say this lady has persistent physical symptoms related to the soft tissue injuries that she sustained (if you like you can call it a Chronic Pain Syndrome). I see nothing to suggest that it is necessarily heightened awareness or perceptional distortion, and I think she has persistent physical symptoms which are quite severe and in themselves debilitating, and this Syndrome of a Post Traumatic Stress Disorder and Adjustment Dsorder with distressed mood.”

104 He concludes by saying:
“That is not to deny but that she has chronic pain and that it is debilitating, but I much prefer the conceptualisation of Chronic Pain with an Adjustment Disorder in reaction thereto. ... I say her organic injury is soft tissue producing persistent physical symptoms and the mental condition is a combination of Adjustment Disorder with depressed mood and Post Traumatic Stress Disorder ... I prefer to say that she suffers from chronic pain and in my view the chronic and persistent pain she has depends upon soft tissue injury and hence is organic and I do not see it in itself as a psychiatric condition.”

Assessment
105 In this report Dr Kenny seeks to address whether the proper diagnosis for the plaintiff is chronic pain syndrome, and the plaintiff submitted that his analysis might assist the Court. He finds that this is not applicable here, because the plaintiff has persistent physical symptoms. In addition he finds that she does have a psychiatric condition of Post Traumatic Stress Disorder and Adjustment Disorder with depressed mood, both of a moderate degree of severity. It is clear from this report that Dr Kenny’s conclusion that chronic pain syndrome is not the appropriate diagnosis here pivots on his acceptance that soft-tissue injuries are present and give rise to the chronic and persistent pain. In this respect Dr Kenny is straying outside his expertise in opining as to the sequelae of the accident in relation to the soft-tissue injuries sustained by the plaintiff. His position is the opposite of Dr Thomas, who as a physician and pain specialist feels able to reach effectively a psychiatric diagnosis as a result of his inability to identify any organic injuries. Dr Kenny appears to endorse the conclusions of Messrs Khan and Brearley who, despite the psychological response, still maintain that the effective cause of the plaintiff’s pain response is physical. Dr Kenny, however, does not grapple with the conclusions of other examiners such as Prof Davis, Mr Dooley, A/Prof Stark and Mr D’Urso the burden of whose reports set out above is that any physical injury has been well and truly overtaken by psychological/psychiatric manifestations.
Dr Kenny’s final report
106 In his second report Dr Kenny had before him a large number of other reports, and noted that things had not changed greatly, but that the plaintiff had become more distressed by the continuing process associated with the accident and the claim. He said this added an element to her Adjustment Disorder. Dr Kenny then noted her complaints of a deteriorating problem with her knees, symptoms of carpal-tunnel syndrome and TMJ dysfunction, and that she also had headaches and back pain. He said that:
“I accept that she has the symptoms of which she complains but of course can’t judge whether there is a physical organic basis to them but what I can say is that it is very common for people involved in significant accidents to have multiple aches and pains and often without radiologically demonstrable symptoms – but nevertheless quite incapacitating. I can only say that it is possible that there is a psychological accentuation of her physical symptoms by her psychiatric/psychological state, but I simply would not be prepared to go beyond acknowledging that there may be such a component. It is always tempting, when a patient has multiple symptoms that don’t quite fit with our expectations of symptoms of the condition that the patient may have, to dismiss or qualify those symptoms as being largely psychological or psychiatric. That may or may not be valid.”

107 He goes on to say that he thought that the component of post-traumatic stress disorder was “somewhat less obvious”, and agreed with Dr Weissman’s comment that she has some features of the disorder rather than the full-blown syndrome. He confirmed she has “quite a marked adjustment disorder with
depressed and anxious mood, being her response to persistent physical
symptoms.” He noted that the plaintiff was not having any psychiatric treatment, and feels the need for more intensive psychological treatment, but he was of the view it would not make any significant difference. He said only upon a final resolution of the matter is there any realistic possibility of significant improvement in her function and quality of life. He did regard a trial of anti-depressant medication as appropriate. He concludes:
“I can’t escape the view that be there an organic basis or not, this accident has had a dramatic effect on this lady’s life; markedly disrupting her integration in this community; markedly impairing her employment capabilities and markedly impairing her enjoyment and quality of life.”

108       He notes that, should the matter be satisfactorily resolved, “there will be some
improvement in her mood and general outlook on life and she may cope better
with her residual physical symptoms.” In relation to her likely need for ongoing medical care, he is of the view that from a psychiatric perspective she most urgently needs resolution of the matter and acceptance of her symptoms. He is also of the opinion she does need anti-depressant medication, and might benefit from seeing a psychiatrist or from a psychologist.
Assessment
109       Dr Kenny’s conclusion about the plaintiff’s condition is premised on his acceptance of the organic nature of the plaintiff’s complaints. He accepts that it is ”possible” that there may be a psychological accentuation of her physical symptoms. He then sits on the fence on this crucial issue by saying that such a conclusion “may or may not be valid”. His equivocal conclusion can be considered alongside that of Dr Thomas, who was unable to diagnose any organic condition, and who by virtue of his experience and professed expertise could be expected to make such a diagnosis. There is a cogency in his statement that many of the patients he examines for physical injuries have a psychological dimension to their presentations, and on that basis he feels able to express his conclusions.
110       Dr Weissman is unable, in his final report, to assess the severity of her chronic adjustment disorder with depressed and anxious mood. His opinion is that the prominent diagnosis is chronic pain disorder or syndrome.
111       Ultimately, the issue is to make a finding on the dominant condition here in accordance with Richards v Wylie. Is it organic/physical in the terms alleged in the limb (a) claim or non-organic and psychological or psychiatric in the terms of the limb (c) claim? The weakness in the analysis of Dr Kenny, and indeed of Messrs Khan and Brearley, is that they all proceed on the basis of a wide range of physical injuries. The Act, however, requires that there be an injury giving rise to consequences for a body function. Dr Kenny refers to the plaintiff’s complaints of pain in her knees, and carpal-tunnel syndrome, as well as TMJ pain. As pointed out by Ms Britbart by way of reply, the plaintiff does not rely on injuries or an impairment to those body parts in this claim, but rather on non-specific sensitisation of pain-nerve pathways, as identified by Dr Blombery.
112       Dr Kenny does accept that chronic pain disorder is a psychiatric syndrome “in which it is considered to be clear that there are psychological factors accentuating the condition”. He does not regard it as appropriate here, because he is of the view that there is an organic basis for the symptoms. He does not however specify with any precision what are the actual physical injuries that give rise to the plaintiff’s complaints of pain, but like Mr Brearley reasons back from the fact of a collision. Dr Thomas, however, cannot identify a physical condition, and Dr Weissman is of the view that chronic pain disorder is the predominant aspect of the presentation.
113       In so far as Dr Kenny might provide any support for the plaintiff’s claim under limb (a), I prefer the conclusions of Dr Thomas. Dr Kenny does not grapple with what I regard as the consensus of the physical examiners that psychological issues are predominating. Because I conclude that psychological/psychiatric issues are predominating, as I have already indicated, I am unable to accept that Dr Blombery has identified a physical injury or disorder that provides the basis for considering the organic consequences.
114       Further, Dr Kenny does not address the express disjunction observed by Dr Weissman of the signs shown by the plaintiff and the symptoms that she complains of. In this regard, I have also considered the video evidence. This evidence shows the plaintiff engaging to a reasonable extent in normal activities of sitting in a taxi and driving it, and walking, and, as expressed by Ms McMillan, “smelling the flowers”. The observations in the video are consistent with the signs observed by Dr Weissman in four consultations. The plaintiff does not appear depressed, nor in the video evidence does she at any time appear to be in pain. While I accept that the video evidence is only a snapshot, the fact is that the plaintiff in the various medical examinations, and indeed in her evidence complains of widespread and diffuse pain, yet did not appear at all in pain in the two hours in the witness box. She does this in circumstances where as I have noted above multiple investigations have not revealed any significant injury, and where she has been able to work for up to 30 hours per week driving a taxi, invest substantial amounts in a proposed business, work up to ten hours a week in the nascent business, and be in recent times the sole carer for her elderly mother.
115       This conclusion does not require a wholesale rejection of the credit of the plaintiff. Rather, I prefer to proceed consistently with the assessments of the examiners that the symptoms that are reported by the plaintiff are disproportionate to the physical sequelae of the accident, and are explained by psychiatric or psychological considerations.
116       In my acceptance of the conclusions of Dr Thomas and Dr Weissman over those of Dr Kenny on the dominant factor in the plaintiff’s presentation, I have also weighed the evidence of the examiners considered above, such as Mr D’Urso, A/Prof Stark, Mr Dooley and Mr Brearley, and, in so far as he refers to a syndrome, Mr Khan. Those examiners support the conclusion of Dr Thomas in so far as they refer to non-organic issues being dominant, or being out of proportion to any continuing physical injuries. They also support the opinion of Dr Kaplan, who said that if the physical specialists identify a non-organic cause, then, as discussed, he is prepared to accept the November 2006 opinion of Dr Weissman regarding chronic pain syndrome as a non-organic condition.
117       On the plaintiff’s limb (a) claim, this essentially leaves the opinion of Dr Blombery as unsupported by other opinion, except perhaps by a comment by Mr D’Urso and, on one account, Dr Harmer.
118       I have considered the authorities referred to by the plaintiff relating to the approach to claims under the Accident Compensation Act and accept that Richards v Wylie directs a different approach in that ‘stripping away’ is not required. As recognised in Jayatilake v Toyota Motor Corporation [2008] VSCA 167, the presence of a psychological response to a physical injury does not prevent the physical injury being the basis of a limb (a) claim.
119       I was referred to Grace v Elmasri [2009] VSCA 111. At [134] the following is stated:
“[134] In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis, Maxwell P noted that the only authoritative definition of the term ‘chronic pain syndrome’ (or ‘chronic pain disorder’) is that contained in the ‘Diagnostic and Statistical Manual of Mental Disorders (Text Revision)’ (’DSM’), published by the American Psychiatric Association. As his Honour noted (referring to the DSM):
The common feature of somatoform disorders is–

‘the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition ... or by another mental disorder (eg, Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational or other areas of functioning. ... [T]he physical symptoms are not intentional (ie, under voluntary control).’

DSM defines a pain disorder as follows:
‘The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. ... The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. ... Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned ... Pain Disorder is not diagnosed if the pain is better accounted for by a Mood, Anxiety or Psychotic Disorder ... .’

Functional overlay is a somatoform disorder. Physical symptoms are present but they are not explained by any organic condition.
[135] The essence of a chronic pain disorder is that the pain which is felt by the sufferer cannot fully be explained by his or her physical condition. It follows that his Honour’s finding that Mr Grace did not have a serious injury to his lumbar spine does not necessarily undermine his claim that he felt acute pain throughout his body, including in his lumbar back.
[136] His Honour was required to weigh the whole of the evidence to determine whether Mr Grace has a severe long term mental or behavioural disorder.”

120       Elmasri was a decision under the Act. Here, as noted below, the plaintiff is not alleging, for the purpose of her limb (c) claim, a chronic pain disorder. Rather, the claim is made under limb (a), relying on the opinion of Dr Blombery. I have also considered the cases wherein Dr Blombery has been relied on, namely Woods v Ross [2000] VSC 501, Todorovski v Ericsson Australia Pty Ltd [2002] VCC (5 December 2002, Judge Dyett), Aird v Trade Paint (Judge G.D. Lewis, 27 October 2000), and Henderson v Yakka Pty Ltd [2009] VCC 0538 (Judge Misso, 13 August 2009). Each of those cases turn on their own facts. I accept that in those decisions judges have accepted the opinion of Dr Blombery, and found a limb (a) injury or disorder. In this case, however, for the reasons set out above, I am not prepared to accept his opinion in identifying an organic condition or injury for the purposes of the plaintiff’s limb (a) claim, and I propose to dismiss that claim.
“Severe long-term behavioural disturbance or disorder?”
121       Turning to the claim under limb (c), the plaintiff relied on the evidence of Dr Kenny. The plaintiff did also insert a report from Dr Leonard Rose dated 3 May 2009 into the joint court book. I give that report little weight, as it confirms a diagnosis of chondromalacia patellae, which is not relied on as a physical injury. The report refers to significant pain in a number of body areas, but does not make any reference to a psychiatric diagnosis.
122       Dr Kenny, as set out above, does not accept the use of the term ‘chronic pain syndrome’, and found that a chronic pain disorder was not appropriate here. Rather, he was of the view that the plaintiff’s Adjustment Disorder with depressed mood, and Post Traumatic Stress Disorder, was the appropriate diagnosis. He described them as being of a “moderate degree of severity”. His opinion was that the organic injury was producing persisting symptoms. He noted that the depressed mood “severely restricts her recreational activities”. He said she would appear to be capable of ordinary domestic duties.
123       In his final report, Dr Kenny agrees with Dr Weissman that the plaintiff has some features of a post-traumatic stress disorder rather than a full-blown syndrome. His opinion was, however, that she “has a quite marked
Adjustment Disorder with depressed and anxious mood being in response to
her permanent physical symptoms”. He is of the view that further psychiatric treatment would not make any significant difference. Dr Kenny’s ultimate prognosis is somewhat ambivalent. First he now categorises the plaintiff’s complaint as “quite a severe Adjustment Disorder”. Then he suggests that when the matter is satisfactorily resolved there will “be some improvement”.
124       Overall I found Dr Kenny’s assessment distinctly unhelpful. It is premised on continuation of physical symptoms causing an adjustment disorder. Such a premise is inconsistent with the opinion of, for example, Mr Dooley, who notes in his final report that the plaintiff “will continue to note some intermittent
cervical spine, lumbar spine and bilateral knee pain. I would not expect her
symptoms to deteriorate in time.” As noted above, the consensus of the examiners’ is that the plaintiff’s physical injuries are not serious, and that non organic features predominate. She is not undergoing any active treatment, and effectively none is recommended, other than exercise.
125       Dr Kenny’s long-term opinion is hedged. He indicates that the plaintiff “might” benefit from seeing a psychiatrist, or anti-depressant medication, yet earlier on he states that such medication will not assist.
126       The plaintiff also relied on earlier reports from Leslie Thornton, psychologist, who provided, in April 2002, a provisional diagnosis of post-traumatic stress disorder and adjustment disorder.
127       Another psychologist, Mr Gilbert, on 4 March 2004, indicated that he was of the view that he doubts that her psychological condition will stabilise until her physical problems are adequately diagnosed and treated. In a later report from Mr Gilbert dated 11 March 2008 he is of the view that she will require ongoing support to allow her to cope with the psychological consequences of the accident. This examiner noted that the plaintiff was “in spite of her difficulties pursuing every opportunity to improve her situation”.
128       The plaintiff had earlier been examined by Dr Brendan Holwill. In his report dated 13 May 2004 he “made an initial clinical diagnosis of moderately severe
depression associated with an acquired brain injury and possible frontal lobe syndrome. There were some elements of post-traumatic stress disorder, but insufficient symptomatology to make a formal diagnosis at the initial
assessment.” He arranged for her to be referred to the Melbourne Pain Clinic.
129       The plaintiff had been seen by Mr George Foenander at that clinic, and he found that “she appears to suffer from an Adjustment Disorder with Depressed Mood as a reaction to her pain and closed head injury”. He also found she was suffering from a chronic pain disorder due to a medical condition. In a later report dated 23 December 2004 he confirmed that diagnosis. The plaintiff relied on this report, as it was premised on a physical medical condition.
130       On 14 July 2006 Dr Albert Kaplan, psychiatrist, found that the plaintiff had developed an “Adjustment Disorder with mixed anxiety and depressed mood
(reactive depression and anxiety) as a result of the accident, her injuries, her chronic pain, and the impact her pain has had upon her ability to lead her

normal lifestyle”. He determined her psychiatric disability to be of the order of
20 per cent.
131       The defendant’s argument in relation to the limb (c) claim was that while the defendant accepts that the plaintiff has an adjustment disorder with anxiety and depression, that disorder could not properly be described as ‘severe’, which it was submitted in accordance with authority is a stronger word than ‘serious’. The defendant relied on Dr Weissman’s reports wherein he had concluded that the plaintiff had no overt symptoms of depression or anxiety. Further, the defendant relied on the surveillance videos and the activities evidenced on those videos. The defendant also relied on the concessions made by the plaintiff as to her investment in the graphics business as well as driving a taxi. The defendant also relied on the fact that the plaintiff has had only psychological treatment and not psychiatric treatment, and this had ceased some time ago. Further, there was no proposed ongoing treatment for her, and she was not taking any psychotropic medication, and her medication consisted of a painkiller, Tramal, and another medication every other day.
132       In relation to the assessment by Dr Kenny, the defendant argued that his assessment of a ‘moderately severe’ level of adjustment disorder would not satisfy the test. The defendant submitted that the Court does not receive any assistance from the impairment assessment of 20 per cent psychiatric disability by Dr Kaplan.
133       The plaintiff argued that the Court ought take into account the plaintiff’s reduction in earnings from her taxi driving following the accident as a measure of the severity of her condition. It was submitted that although she had consistently stated that she worked around 25 hours per week driving, this was much less than she had previously achieved, and what she had planned. Further, the plaintiff had told examiners of the nightmarish effects of memories of the collision, and now had a very limited social life. The plaintiff thus relied on both pecuniary disadvantage and pain and suffering as the consequences of the limb (c) condition and as providing a measure of its “severity.”
Assessment
134       It was common ground that the plaintiff had an adjustment disorder. It does, however, appear from the report of a neuropsychologist, Ms Smith, that in March 2003 the assessment was essentially within normal limits, but that her difficulties seemed to be at a functional level and “may be related more to a mood disturbance than of an organic origin”.
135       The adjectival descriptions of the plaintiff’s condition cannot be determinative in the application of the limb (c) test. Although both parties submitted that the impairment assessments performed by Dr Weissman on 30 November 2006 and confirmed in his May 2008 report of a collective impairment of 16 per cent, with 4 per cent ‘primary’ impairment and 12 per cent ‘secondary’ impairment, and that of Dr Kaplan on 14 July 2006, of a 20 per cent psychiatric impairment pursuant to the Medical Panel (Psychiatry) Clinical Guidelines, were not helpful, I do find some assistance in the descriptions assigned for the individual elements of the assessments. In this respect there is force in the submission by the defendant “that there is nothing hugely severe that would be described in that impairment assessment” by Dr Kaplan.
136       The two assessments of Drs Kaplan and Weissman are essentially similar. Most significantly, the categorisation of the plaintiff’s condition by each of the examiners is in the 10 to 20 per cent range, which hardly rates as ‘severe’.
137       Mr Moore urged me to accept the assessment of Dr Kenny.
138       In assessing the severity of the plaintiff’s psychiatric condition, I regard the following as important matters.
139       First, Dr Walton on 19 September 2002 did not find a diagnosis of post- traumatic stress disorder. Rather, his opinion was that of an adjustment disorder of “at least moderate severity”. At that point he remained reasonably optimistic about the long-term prognosis.
140       Ms Smith noted on 29 March 2003 that despite the plaintiff’s complaints of pain, she was able to participate in an assessment of almost three hours without complaint. Ms Smith found the plaintiff’s performance to be essentially within normal limits, and opined that the difficulties may be related to mood disturbance rather than being of organic origin.
141       There was a difference in the qualitative assessment of the plaintiff’s condition by Dr Kenny (two examinations) and Dr Weissman (four examinations). Dr Weissman is unable to assess the seriousness of the plaintiff’s psychiatric condition due to the disjunction between the symptoms and signs. I regard that as significant, and to an extent it can be seen in the video, in that the plaintiff appears to be functioning normally, and in her presentation in the witness box, and as noted in 2003 by Ms Smith. Mr Moore, however, submits that the video should be viewed another way, as showing a depressed pain- driven woman struggling to make ends meet. I don’t accept that submission when the footage is combined with her witness box presentation, the careful observations of Dr Weissman, and the robust opinion of Dr Thomas, which I accept, that “the nature of her (physical) condition is not sinister.”
142       In assessing the severity of the plaintiff’s psychiatric condition, the fact that an experienced examiner such as Dr Weissman is unable to make that assessment is significant, because it is inconsistent with finding that the psychiatric condition ought be accorded the appellation ‘severe’. It is also consistent with the adjectival descriptions of the individual components of the two impairment assessments as “minor problem” or “slight deficit.” Further, he did opine, that “there was no actual psychiatric incapacity for work.”
143       Similarly, the assessment must also take into account the matters that emerged in evidence, bearing in mind that the plaintiff ought not be disadvantaged by her efforts to continue with her taxi driving and proposed business. As her counsel submitted, she was trying to get on with her life with limited financial resources in circumstances where she had an elderly mother to care for. As he also submitted, and which was not challenged, the plaintiff was regarded as genuine and straightforward in her presentation by examiners, other than Dr Weissman, who in a persuasive assessment, found a disjunction between signs and symptoms.
144       The plaintiff’s medication is currently Tramal, and she is seeing three doctors at “decent intervals”. Although given a prescription for an anti-depressant she has chosen not to take same. The opinions of Drs Kenny and Weissman as to whether any further psychiatric or psychological treatment would be beneficial are equivocal. For any physical injuries that the plaintiff might have, the treatment recommended by Mr Dooley is exercise, which the plaintiff has declined to undertake due to the pain it generated.
145       The fact that the plaintiff is able to function on a day to day basis without significant therapy or psychotropic medication is also relevant to an assessment of the severity of the plaintiff’s psychiatric condition.
146       The plaintiff has been able to work part-time as a taxi driver, generally at night when her mother is asleep, care for her elderly mother, invest in the proposed business, and do some work in that business. Further, the plaintiff’s incapacity for employment as assessed by medical examiners has not been substantial, as submitted by her Counsel. Thus Mr D’Urso states that she “does have
ongoing capacity for employment. She may have a diminution in her ability to perform work for long hours but at least a part-time capacity for pre-injury
duties at present.” Mr Dooley in his final report notes her work arrangements and notes that “at times” her physical injuries “will make it more difficult for her to carry out her work to completion”. Dr Thomas opines that the plaintiff can continue her work as a graphic designer and should be able to participate in full domestic and leisure activities. Both Drs Kaplan and Kenny state that the plaintiff’s capacity for employment is dependent on her physical condition.
147       I regard the degree to which the plaintiff has been able to continue with her part-time taxi driving, and her efforts to get a business off the ground, as relevant to an evaluation of her chronic adjustment disorder with anxiety and depressed mood and features some features of a post traumatic stress disorder.
148       Her domestic activities are also relevant. She is a full-time carer for her 87- year-old mother and receives a government benefit for that role. The plaintiff has had no assistance in that role for the last couple of years. The terms of the benefit entitlement restrict the plaintiff to working 25 hours per week. There was no evidence that the plaintiff limited her taxi driving to that time to maintain her entitlement, however an inference is open that it suited the plaintiff to seek to establish the business in circumstances where given it was not generating income she was able to both work at night in taxi driving, work on the business, and care for her mother. Under cross-examination as to why the plaintiff had committed substantial borrowed monies, albeit from her mother, to the proposed business, the plaintiff’s answers lacked conviction, and are consistent with an understandable choice by the plaintiff to arrange her affairs such that she was able to continue to care for her mother, generate some income from the taxi driving and also commit more and more funds to the business in the hope that at some stage it might succeed.
149       While it was not disputed that the plaintiff has a very limited social life, having regard to the matters that I have referred to, I do not consider that the plaintiff’s psychiatric condition as identified by Dr Kenny and alleged in her limb (c) application meets the requirement of a “severe long term behavioural disturbance or disorder.”
150       The plaintiff’s application for the relevant certificates is dismissed.
151       I will hear counsel on the question of costs.

[2010] VCC 494

4 June 2010