Dougherty v Transport Accident Commission
[2014] VCC 459
•8 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05973
| DIANE DOUGHERTY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13, 19, 20, 21 and 24 February 2014 | |
DATE OF JUDGMENT: | 8 May 2014 | |
CASE MAY BE CITED AS: | Dougherty v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 459 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Transport Accident Act s93(17) – Transport Accident Act 1986 – serious injury – spinal injury and/or post-traumatic stress disorder, major depression, adjustment disorder and chronic pain syndrome – credit and reliability of lay evidence
Legislation Cited: Transport Accident Act 1986 s93(4)(d) and s93(17)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Richards & Anor v Wylie (2000) 1 VR 79; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Ms N Wolski | Nowicki Cabone |
| For the Defendant | Ms R Annesley SC with Mr A Newman (later Ms A Wood) | Solicitors to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Diane Dougherty seeks leave from the court pursuant to s93 Transport Accident Act 1986 to commence common law proceedings to recover damages for injuries she received in a transport accident in which she was involved on 11 November 2009. On that day at about 8am she was driving her car in High Street, Laverton, near the entrance ramp to the Princes Freeway. When she was stationary in traffic another car collided with the right rear corner of her car in what is described by the plaintiff as a high-speed collision. As a result the plaintiff sustained injuries. She telephoned a friend from the scene and was then driven to the Werribee Mercy Hospital where she was examined, x‑rayed, and discharged into the care of Dr John Fotakis, her general practitioner. Dr Fotakis has continued to manage the plaintiff up to the date of this application.
2 The plaintiff has been unable to return to work, and claims leave pursuant to paragraph (a) of the definition of serious injury set out in s93(17) of the Transport Accident Act 1986. The principles relating to such applications are well established, and in essence the onus rests with the plaintiff to prove her entitlement to leave, in this case on the basis that the consequences of an injury to her lower back can be regarded, “when judged by comparison with other cases in the range of possible impairments or losses, as being fairly described at least as very considerable and certainly more than significant or marked”.[1]
[1]Humphries v Poljak [1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
3 Alternatively the plaintiff seeks leave on the basis that she has suffered severe mental or behavioural disturbance or disorder as described in paragraph (c) of the serious injury definition. Specifically, the plaintiff relies upon major depression, post-traumatic stress disorder (PTSD) or symptoms thereof, and chronic pain disorder as evidencing her entitlement to leave under paragraph (c).
4 It is common ground that the plaintiff has not returned to work. She is presently fifty-three years of age. The accident occurred shortly before she turned forty-nine. In addition to her inability to return to work, the plaintiff has set out in three supporting affidavits details of quite extensive conservative treatment, a comprehensive description of her experiences of pain and restriction of movement, and detailed examples of consequences said to result from the transport accident affecting her social, recreational and domestic activities.
5 The defendant identified the plaintiff’s credit as the principal area of dispute, and sought to cross-examine the plaintiff, her daughter Grainne, and Ms Dorothy Reed, a friend of the plaintiff’s, in this application.
6 The hearing proceeded over six sitting days, albeit with an interruption of just over a week to enable inspection by the defendant’s solicitors of the plaintiff’s Facebook material, which was ordered on the second morning of the hearing. Whilst it is unfortunate, costly, and inconvenient to all parties that an application of this type occupy so much court time, I am not critical of the legal practitioners for either party in relation to the manner in which this case was litigated. Ultimately the credit of the plaintiff was critical to my determination of this proceeding.
The Evidence
7 The defendant did not seek to cross-examine any of the plaintiff’s treating doctors or medico-legal experts. The medical evidence was tendered by each party, without objection, from the court books prepared in this matter. The medical evidence relied upon by the plaintiff is set out in Exhibits D and E; that relied upon by the defendant is contained in Exhibits 2 and 3.
8 As the central issue in this case turned upon the credit of the plaintiff and the lay witnesses supporting her, there is little point in restating in summary form the contents of the various medical reports at this stage. The extent to which a court may rely on the opinion given in medical reports is based, to a large extent, upon the assessment of the plaintiff and other lay witnesses as witnesses of truth, and the reliability of histories received by medical practitioners.[2]
[2]Mobilio v Balliotis [1998] 3 VR 833 at 843 per Brooking JA.
9 I therefore propose to deal initially with the lay evidence before the court.
The Plaintiff’s evidence
10 The plaintiff swore three affidavits in support of her application, the first being on 20 December 2010. In summary form, that affidavit deposes as follows:
· After finishing secondary school the plaintiff worked as an instrument technician in Ireland until about 1982. After arriving in Australia the plaintiff worked generally as an instrument technician and/or patient services assistant up to the date of the collision.
· Apart from a wrist injury requiring a couple of weeks off work, the plaintiff had been healthy and injury-free.
· Following the transport accident and after initial treatment in the form of physiotherapy the plaintiff was referred to Mr De la Harpe, orthopaedic surgeon, but continued with conservative treatment.
· The plaintiff commenced to see Dr Evers, psychologist, in mid-2010.
· She continued to experience restriction of movement and pain in the lower back following the accident, radiating upwards towards the shoulder blades and downwards into her legs and hips. She was suffering cramps and spasms in the legs. She had similar neck pain and some restriction in the right shoulder.
· She has restriction in walking more than a couple of hundred metres without pain and tends to use a walking frame.
· She has similar difficulties standing or sitting for lengthy periods of time, and avoids driving.
· She has difficulty sleeping and with activities such as carrying items of shopping.
· In terms of recreational and social activities she tends to avoid riding a bicycle, prefers to wear slip-on shoes, avoids going camping, and does not attend social events such as Irish festivals.
· She deposed that it was difficult and painful for her to engage in physical intimacy with her partner due to the pain in the lower back, neck, right wrist and right shoulder.
· She does not socialise as often as she previously did, partly because of pain and partly because of feelings of depression. She feels frustrated and angry.
· She has been unable to return to work, and claims a loss that could be approximately $1,000 gross per week.
11 The plaintiff swore a second affidavit on 27 February 2013 which was largely confirmatory of the material deposed to in 2010. Specifically, the second affidavit confirmed the plaintiff’s complaints as follows:
· The plaintiff still had constant lower back pain, often extending into the buttocks and down the legs. She got spasms and jerking sensations and sometimes cramps in the legs, which sometimes give way. The pain extends into the middle of the back.
· Walking, sitting and standing were still restricted, and the plaintiff continued to wear slip-on shoes. She still tended to use a walking frame and was very unstable on her feet. She sometimes wore a back brace as recommended by Mr de la Harpe.
· On one occasion, shortly prior to the second affidavit, the plaintiff fell after her legs gave way when getting out of bed. She suffered a fractured right arm as a consequence.
· She was still being treated by Dr Fotakis. Her medications were Tramadol 150 mgs SR morning and night, and sometimes Tramadol 50 mgs together with Panadeine Forte and anti-depressant medication.
· She remained significantly depressed, being frustrated and upset with the pain and limitations on her. She was prone to crying and had thoughts of self-harm.
· Having previously seen Dr Evers, psychologist, she had more recently been seeing Ms Palmer, psychologist, approximately once per fortnight.
· She was still having physiotherapy through the pain management unit at Geelong Hospital. She had seen Dr Thomas, consultant in rehabilitation and pain management, in late 2011, but had been under the care of Dr McCoy at the Geelong Hospital pain management unit. She had one nerve block injection into her spine, which was not of benefit to her.
· Modifications had been made to her home to assist her going up and down stairs and using the shower. Her daughter resided at home with her, as had a carer who was a friend’s son. Her ability to attend to day-to-day activities was such that she required a carer.
· The plaintiff could do very little in the way of assisting with domestic chores. She had two dogs, but was very limited in her ability to walk them.
· She had attempted to drive a couple of times but had ceased driving. She felt very anxious as a passenger and did not feel safe when driving.
12 A third affidavit was sworn by the plaintiff on 5 February 2014 just prior to the hearing. This affidavit contained considerable detail concerning the plaintiff’s condition immediately prior to the trial. I noted in particular:
· The plaintiff deposed to continuing to suffer ongoing severe and disabling pain affecting her spine and particularly the lower back, extending particularly down the left lower limb.
· The plaintiff affirmed suffering a fracture of the right forearm after a fall in January 2013 due to lower limb weakness.
· Nerve blocks performed by Dr McCoy at Geelong Pain Clinic were beneficial in reducing the symptoms of spasm and jerking in the legs and improving the plaintiff’s ability to walk.
· Notwithstanding, the plaintiff continues to use a walker frequently, particularly outside her home environment.
· The plaintiff continues to have a live-in carer, who is the son of one of the plaintiff’s friends and was at one time in a relationship with the plaintiff’s daughter.
· The plaintiff continues to attend Dr Fotakis and is prescribed 375 mgs Lyrica per day, Tramadol SR 50 mgs, and up to 50 mgs of Tramal together with Panadeine Forte up to four tablets a day. Additionally the plaintiff takes anti-depressants which were at the time of the affidavit Fluoxetine 200 mgs per day and Diazepam 5 mgs per day.
· The plaintiff continues to attend a psychological counsellor, Ms Palmer, on a fortnightly basis, and had in recent times contemplated suicide.
· The plaintiff’s carer assists in domestic tasks including operating the washing machine, taking clothes out of the machine, driving the plaintiff on the majority of occasions, and assisting with other domestic tasks.
· The plaintiff might be assisted to social outings, such as having a friend who takes her to a poker machine venue once or twice per week.
· The plaintiff believes she is no longer able to continue in any form of employment in the future. Her sleep is disturbed on a chronic basis, and she has suffered a substantial interference with the enjoyment of her life.
13 On the basis of the material set out in affidavit form, the plaintiff prima facie describes consequences flowing from the injury to her lower back which appear consistent with a finding that she has suffered a serious injury as defined. Following cross-examination a very different picture emerged. Cross-examination ranged over two sitting days and was extensive. I noted in particular the following matters as being relevant to my determination:
· The plaintiff had fully recovered from a wrist injury sustained in April 2009 at the time of the transport accident.[3]
[3]Transcript (“T”) 22, Line (“L”) 20 to T23, L11.
· Some past history of medical conditions predating the transport accident was not included in the affidavits or mentioned to medico-legal examiners.[4]
[4]T28, L9–T29, L7.
· The plaintiff had suffered depression between October 2001 and December 2003 in the context of relationship difficulties.[5]
[5]T33, L29–31.
· The plaintiff had fairly regular anti-depressant medication between 2001 and 2006 and did not give that history to doctors.[6]
[6]T35, L3–7.
· The plaintiff was only working part-time and her income was not consistent with income of $1,000 gross per week she had previously deposed to.[7]
[7]T38, L18–20 and T39, L22–T40, L4.
· The plaintiff generally confirmed the persistence of symptoms affecting her back in particular at the time of swearing her second and third affidavits, whilst conceding the spasming in her legs had improved after the nerve block in February 2013.[8]
[8]T64, L22–26.
· The plaintiff confirmed ongoing use of a walking frame on many occasions: “I have started to try and walk to my appointments”.[9]
· In 2011 the plaintiff was very debilitated, had stopped socialising, stopped doing any household activities, stopped driving, and was unable to go back to work.[10]
· The plaintiff started to go out socially just before Christmas 2012 as her friend Dot (often referred to as ‘Sis’) “would force me to”. This involved going to the plaza in Werribee maybe every second day.[11]
[9]T64, L16-18.
[10]T79, L25–31.
[11]T78, L10–22.
14 So far as the cross-examination had then proceeded, the plaintiff had given every indication to the court that the consequences of her back injury following the transport accident had been quite debilitating for her in terms of any ability to return to work, participate in activities of daily living, or to enjoy herself socially. She was then further cross-examined, largely in relation to extracts from her social media ‘Facebook’ account which had been accessed by the defendant’s solicitors with the consent of the plaintiff after some discussion in court.
15 The plaintiff’s Facebook material formed the basis for extensive cross-examination with the clear intent of contradicting the plaintiff’s position previously sworn on affidavit and concentrating largely on aspects of her social and recreational activity. In making an assessment of this material, I have taken into account the submission made on behalf of the plaintiff to the effect that the attack based on the Facebook material was a scattergun rather than focussed attack on the plaintiff. I am mindful of the need to determine this application on the basis of the whole of the evidence and in this case I must weigh the credit material carefully and indeed regard the Facebook material with a degree of caution, bearing in mind that the very nature of social media communications seems to have as its principal tenet the need to impress readers as to the wonderful life being enjoyed by the author of the various postings. Even making such an allowance in favour of the plaintiff, I found several aspects of the Facebook material very troubling.
16 I have also noted the matters contained in Exhibit C tendered on behalf of the plaintiff which detail Facebook postings between 8 November 2010 and 12 January 2013 which are generally supportive of the plaintiff’s complaints of ongoing pain and difficulty with aspects of her daily activities.
17 I do not believe it is necessary or useful to laboriously set out each and every contradictory matter that was the subject of cross-examination in this application. It is however prudent to point out the principal matters which have influenced me in the determination of this aspect of the claim.
·The material relating to the plaintiff’s daughter’s 16th birthday party held on 22 April 2010 showed the plaintiff dressed as the Queen of Hearts, smiling, wearing what appeared to be high heeled shoes, standing with Ms Reed and her daughter, Grainne apparently drinking a glass of wine and no indication of any noticeable distress or reliance upon walking frames, walking sticks or similar devices.[12]
[12]Exhibit 2, 83-88.
·The plaintiff’s 50th birthday party on 13 November 2010 which was described as a 50s/60s night by the plaintiff in communications with a potential disc jockey. Communications in the few weeks preceding that event included the plaintiff posting the following material:
“I'm fine since car accident on the mend and 13th Nov is party night are you gonna do DJ for me. I have all the CDs and records LOL Also if you are, have you got lights and do I have to pay you ha ha ha x o x”
This was followed a few days later with the following:
“You haven’t missed it. It’s on the 13th. No address for you. It’s 50s/60s night. Hey maybe as a B/day pressie you can do my DJ. Can’t get a hold of my friend so far to do it. It’s also dress up or character. Let me know. Would love to catch up. Bring some friends if you like. x"
A further posting was made about a week later:
“High babe, you email??? Please babe, I'm a little stressed I just want my 50th to go off with a bang. LOL Are you doing my DJ lights, music etc etc and do I have to pay you??? I am a poor Irish woman but I will feed ya and if you feel like a drink I can get that too and you sleep where you drop. You know me ha ha and if mates come plenty of tents and sleeping bags ha ha love D xoxox”[13]
[13]Exhibit 2, 174.
·The plaintiff travelled to Perth in November 2010 and remained approximately one month. I accept the purpose of the trip was to give comfort and support to the son and daughter-in-law of her friend, Dot, who had a gravely ill child, although the material recorded in the plaintiff’s Facebook entries are inconsistent with the plaintiff making such a trip in circumstances where her ability to enjoy normal recreation was compromised:
“I've done a bit of sightseeing as we aren’t allowed in the hospital every day and I've got a bit burnt … I went to a place called Mandurah yesterday and took a trip to see the dolphins, it was great.”[14]
[14]Exhibit 2, 189.
·A series of Facebook messages between the plaintiff and her then partner, “John”, between November 2010 and June 2001 is quite inconsistent with the plaintiff’s allegations of experiencing difficulty and pain engaging in physical intimacy with her partner as deposed to in her first affidavit.[15]
[15]Exhibit 2, 191 and 206 and Exhibit D, 25 esp [40] and [41].
·The plaintiff’s reference to celebrating St Patrick’s Day in Perth in 2011 was noted in a posting on 18 March 2011:
“Oh boy what a day/night. Had fantastic time in Perth for St Pat’s Day they didn’t know what hit them when I arrived LOL great memories to keep.”[16]
[16]Exhibit 2, 194.
This was followed by another person’s comment:
“Hope you R not causing to much trouble Diane! LOL xo”
To which the plaintiff replied:
“Me cause trouble, Kimmie NEVER LOL yeah Leanne we had a ball. Best night in a long time, you would have love it. x"[17]
[17]Exhibit 2, 194.
When cross-examined about this exchange the plaintiff responded that she had only gone out during the day. She maintained this position in cross-examination.[18]
[18]T138, L28 – T139, L30.
·A difficulty in reconciling the Facebook material with the plaintiff’s other evidence is highlighted by the fact that when she was examined by Mr Dickens on behalf of the defendant on 18 July 2011, the history record by the doctor in relation to the severity of her back pain was as follows:
“The severity of her back pain on a visual analogue scale is 10 out 10. On good days it can be 8 ½ out of 10.”[19]
[19]Exhibit 2, 8.
The plaintiff’s claims of her difficulties and/or inability to clean and perform domestic activities are contradicted by entries in Facebook in the early months of 2012. In one message posted on 2 February 2012, the plaintiff states:
“Now lovely lady, please don’t take this the wrong way but you are worrying me. I have never seen you that tired or drawn out like I did today/night … I could come to your place and give the house a once over for you once a week and please it’s not that I want the money that’s not it. I wanna help you and me too I guess as it will keep me going.”[20]
[20]Exhibit 2, 274.
·The plaintiff again returned to Perth in April 2012 and posted:
“I am keeping busy cleaning car, cleaning, walking … I'm bloody bored … been cooking and freezing the meals …”[21]
[21]Exhibit 2, 276.
·Throughout mid to late 2012, recorded the plaintiff as having attended social functions including 18th, 21st, 30th and 50th birthday parties, clubbing, attending music and comedy performances and other events described as “nights out”. I noted thirteen such attendances recorded between 12 June and 25 December 2012.[22] This is in stark contrast to the plaintiff’s evidence and history to medical practitioners:
[22]Exhibit 2, 243-264.
“When you saw Mr Hayman in January of 2013 … did you tell him … you were “isolated at home and does not go out” … Yes.[23]
[23]T81, L6-11.
·I regard it as particularly significant the plaintiff’s account relating to an alleged jewellery sale in 2012. The plaintiff was cross-examined about the following entry recorded by her on Facebook on 11 June 2012:
“Ha ha, listen quick question. Can you still get rid of ???? as I have about $1,000 worth and you can have a good cut. LOVEYA HEAPS XXX”
When this passage was put to the plaintiff, she replied:
“That was jewellery a friend dropped off for me.”
The entry in Facebook was followed immediately by a response from another person:
“I need C what’s there and what peep’s want.”
To which the plaintiff replied:
“Tramadol 50 mg, Panadine Forte 500 mg and Diazepam 5 mg xxxx.”
The person receiving the communication then responded:
“I will come C U through the wk.”[24]
[24]Exhibit 2, 277 and T309, L14 – T310, L24.
18 Video surveillance was also shown to the plaintiff in cross-examination. This showed the plaintiff attending a medical appointment shortly before 10.30am on 18 December 2012. She is using a walking frame and walking slowly. At 13.35 on the same day, the plaintiff is shown walking unaided with apparently no restriction carrying a small box back to the vehicle driven by her carer. She enters the vehicle without any apparent restriction or concern.[25]
[25]Exhibit 1, video surveillance taken 18 December 2012.
19 Despite the valiant efforts of Mr Ingram, who appeared with Ms Wolski for the plaintiff to redeem these matters in re-examination, I was left at the conclusion of the plaintiff’s evidence there were simply too many inconsistencies and contradictions to permit me to form a view that I could rely on the plaintiff’s evidence.
20 The plaintiff’s daughter, Grainne Dougherty, had sworn an affidavit in support of the application in February 2013. She was also required for cross-examination. Ms Dougherty was fifteen years of age at the time the transport accident occurred. Her affidavit deposed in general to difficulties she had observed with her mother attending to household activities and personal care. When cross-examined, she confirmed the following matters:
·Her mother could shower herself now, having had a chair and stuff in the shower. … She was a bit more motivated.[26]
·Her mother does socialise a lot more than what she did. … But still she pulls herself back a lot.[27]
·For about 2 ½ years she did very little, minimum socialising. Since that time she has improved a lot more.[28]
·When the accident first happened (I'm talking about the first year or two) she did need a lot of help.[29]
·The witness said that her mother would only drink alcohol on very few, special occasions.[30] When attending social functions with the plaintiff she tried to avoid crowded places.[31]
[26]T231, L5-11.
[27]T231, L12-15.
[28]T232, L15-20.
[29]T233, L16-22.
[30]T239, L4-8.
[31]T244, L28 – T245, L8.
21 Ms Dougherty was cross-examined about numerous other social functions to which reference had been made in the Facebook material and about which the plaintiff herself had been cross-examined. In general terms, her responses were supportive of her mother, although to a number of questions the witness was simply not in a position to offer any useful comment. The witness has not resided with the plaintiff some months prior to the trial. Although the witness stated that she had not left because of conflict with her former boyfriend, I note that the witness and the plaintiff’s carer had been in a relationship which finished some time in 2013.
22 I concluded that the plaintiff’s daughter was doing her best to give truthful answers to the Court but was in a limited position to comment on relevant matters occurring at least during the latter part of 2013 and the early months of 2014.
23 The final witness to give viva voce evidence was a friend of the plaintiff, Ms Dorothy Marie Reed, who had sworn an affidavit in support of the plaintiff’s application on 27 February 2013. Ms Reed had known the plaintiff for over ten years and had initially met her when they were both working as patient services assistants at St Vincent’s Hospital. It was clear from Ms Reed’s affidavit that she had a considerable amount of social contact with the plaintiff prior to the transport accident and had tried to assist the plaintiff by “dragging her out” in order to get her to socialise at least once per month.[32]
[32]Exhibit D, 37 at [12] and [14].
24 At the time of swearing her affidavit, Ms Reed resided in Werribee, quite close to the plaintiff’s address. She was residing in Mandurah in Western Australia at the time this application proceeded. She had resided in Perth since May 2013 and had communicated with the plaintiff on Facebook until the plaintiff informed her that “she was advised to get off Facebook”.[33]
[33]T347, L23-24.
25 In relation to social activities, the witness described the post-accident change as the plaintiff becoming far less sociable:
“We would go out nearly every weekend, after the accident we would go if something was prior arranged or yeah it pretty much had to be prior arranged … well going from once a week, once a fortnight, it would have maybe dropped down to once a month.”[34]
[34]T357, L26 – T357, L30.
26 Ms Reed agreed that from December 2012 she was at least able to get the plaintiff out of her house more often.[35] She later conceded this type of activity could have occurred in 2011 rather than 2012.[36]
[35]T366, L14-16.
[36]T368, L23 – T369, L1.
27 Ms Reed was quite extensively cross-examined as to her observations of the plaintiff at various social occasions including a camping trip to the Hamilton area in April/May 2012. In relation to this, she was cross-examined about an entry from the plaintiff’s Facebook stating:
“Another trip off my bucket list, a road trip. Thanks sis, but the best of all got a second surprise off my list. South Australia. My sis is full of surprises. Loved every minute of it. xoxo”[37]
[37]Exhibit 2, 237.
28 I accepted Ms Reed as a witness who endeavoured to give truthful answers and noted her difficulty in giving evidence about the plaintiff’s current condition since she has relocated to Western Australia in 2013. In general, I accepted the evidence of Ms Reed as establishing that there had been for a considerable time after the transport accident a very significant decrease in the plaintiff’s ability to engage in social and other activities and an apparent change in her emotional outlook. I regarded it as appropriate that Ms Reed made concessions in cross-examination including accepting that there have been other stressors in the plaintiff’s life since the transport accident including a relationship breakup and some issues concerning her son and her daughter and the relationship breakup between the plaintiff’s daughter and the plaintiff’s current carer.[38]
[38]T399, L17-30.
Analysis
29 In general terms, I found the plaintiff to be an unsatisfactory witness. I am not prepared to accept her description of the consequences of her injuries, either physical or emotional impacting on her in the manner described in her three affidavits and reaffirmed in viva voce evidence before me. I do accept as a matter of probability that the plaintiff has sustained quite significant injuries which caused considerable restriction particularly in the first twelve to eighteen months following the transport accident. I do not accept that those injuries have produced consequences since that time which are anywhere near the extent described by the plaintiff.
30 I accept the evidence of the plaintiff’s daughter, Grainne, and her friend, Dorothy Reed, as generally being truthful and indicative of a belief that the plaintiff has to their respective observations suffered a noticeable change in her general level of activity and outlook. In each case, however, the ability these two witnesses have had to make observation of the plaintiff over the last year or several months prior to the hearing of this application has been limited.
31 The medical evidence may in some cases be sufficient to discharge the burden of proof faced by the plaintiff even where the supporting lay evidence is unreliable.[39] There may in certain cases be objective findings made by the medical practitioners which lead to the probable conclusion that the consequences of an injury will satisfy the serious injury test. Additionally there may be cases where the failure to cross examine medical witnesses permits the Court to draw an adverse inference against the party failing to cross examine. Such a submission was put to me by Mr Ingram in this case. In particular, the plaintiff’s treating general practitioner, Dr Fotakis, is supportive of the plaintiff’s condition. He states in his most recent report of 6 December 2013:
“Diane was involved in a car accident on 11/11/09 and as a result has been left with chronic lower back pain and left sided sciatica secondary to L4/5 and L5/S1 disc bulges as well as severe depression. I feel her physical and psychological injuries are lifelong. I feel she is incapable of her pre-injury employment because of the injuries suffered in the accident.”[40]
[39]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104.
[40]Exhibit D, 68(k).
32 In my view Dr Fotakis has responded to the plaintiff’s reported complaints and provided treatment on the basis of such complaints. Where I have found the plaintiff to be unreliable as a witness and medical historian, it would not be appropriate to draw an adverse inference against the defendant for failing to cross-examine him.
33 The plaintiff was referred to Mr de la Harpe, orthopaedic surgeon, in 2010 and 2011. On 6 September 2011, Mr de la Harpe reported as follows:
“Diane’s physical limitations on presentation seem to be quite extreme and she is having difficulty even with activities of daily living such as self caring and showering. … After appropriate treatment I feel that she should be capable of at least returning to sedentary work. … I believe the long term prognosis for Diane in general is quite good. … I don’t believe she is totally and permanently disabled. … At present her incapacity seems to be in excess of her MRI findings.”[41]
[41]Exhibit 2, 52B.
34 The plaintiff’s most recent medico‑legal opinion in terms of physical injury is that obtained from Mr Rodney Simm who reported on three occasions between 1 November 2012 and 31 January 2014.[42] In Mr Simm’s most recent report, he was provided with an opinion expressed by another orthopaedic surgeon, Mr Dickens, and stated:
“I largely concur with the opinions expressed by Mr Dickens that she has had a soft tissue injury to the lumbosacral spine in the presence of underlying degenerative pathology which has been aggravated. He chose to describe her clinical presentation as an abnormal illness response with an illness focus. I have described this aspect of her condition as a chronic adverse pain response, which has led to her living as a dependent spinal invalid with a dependency upon a four wheeled walker and the assistance of a carer and her daughter.”[43]
This opinion is consistent with my findings.
[42]Exhibit D, 75-83j.
[43]Exhibit D, 83j.
35 The defendant obtained the opinion of Dr Michael Baynes, occupational physician, in August 2011. At that time he regarded the plaintiff’s condition as an acute onset of lower back pain associated with an L4-5 and L5-S1 disc prolapse. He commented also that there was some evidence of abnormal illness behaviour.[44]
[44]Exhibit 2, 3.
36 Later opinions were obtained from Mr Robert Dickens, orthopaedic surgeon, who first examined the plaintiff on 18 July 2011 and again on 18 December 2012. When Mr Dickens reported after his second examination he diagnosed an aggravation of underlying degenerative change as the likely injury sustained in the transport accident. He did, however, comment as follows:
“I believe under normal circumstances the prognosis should have been more satisfactory and I think now that there are psycho-social issues which have impacted on her recovery and resulted in her ongoing incapacity. … It is apparent that the injuries do continue to interfere with her ability to work. In a well motivated fit person, the type of injury that this lady sustained would almost certainly have improved, if not resolved and would have allowed her to return to her original employment over a period of three to six months. I believe there are other psycho-social issues which have impacted on her capacity to recover. They are now dominant in her apparent inability to work.”[45]
[45]Exhibit 2, 22-3.
37 The operation of s93 of the Act enables a plaintiff who sustains a physical injury to satisfy the serious injury test under paragraph (a) of the definition in circumstances where non-organic issues have complicated and/or enlarged the serious consequences flowing from such an injury. [46]
[46]Richards & Anor v Wylie (2000) 1 VR 79.
38 I have taken into account the passage in Fokas v Staff Australia Pty Ltd[47] to which I was referred in final submissions by Mr Ingram. I accept that I should not disregard in particular the strong views expressed by the treating general practitioner, Dr Fotakis, particularly expressed in his report to the plaintiff’s solicitors dated 13 March 2013.[48] I have stopped short in these reasons from making a finding that the plaintiff has deliberately set out to mislead both medical practitioners and the Court in relation to the extent of her symptom complex. It is clear that Dr Fotakis has continued to supply the plaintiff with significant prescriptions of analgesic and anti-anxiolytic medication. In view of the findings I have made in relation to the plaintiff’s credibility and particularly noting the Facebook entry concerning the alleged “jewellery sale” of November 2011, I do not believe the ongoing provision of a high level of medication in this case is sufficient to persuade me that the plaintiff has an ongoing organic symptom complex sufficient to satisfy the serious injury threshold.
[47][2013] VSCA 230 at [43].
[48]Exhibit D, 68a and 68b.
39 Finally in relation to the organic consequences of injury, it was submitted on behalf of the plaintiff that in accordance with the findings in Petkovski v Galleti,[49] where it was found that a reduction of a plaintiff’s ability to work from 30 hours a week to 20 hours a week would of itself warrant a finding of a serious injury consequence, I cannot accept in this case that the physical injuries have prevented the plaintiff from returning to employment. I am simply unable to rely sufficiently on the plaintiff’s evidence to make such a finding. I prefer the opinion expressed by Mr Dickens as to the physical consequences in terms of employment which I find not to be long term nor serious.
[49][1994] 1 VR 436 at [443].
40 In the present case I am not satisfied that the plaintiff has made out an entitlement for leave in accordance with paragraph (a) of the definition. I am not satisfied that the physical injury is of itself sufficient to warrant the descriptor of “at least very considerable” when compared to a range of possible impairments or losses of a body function. I do not believe the application of the Richards v Wylie principle elevates the plaintiff’s case to the required level in this application.
41 In relation to the claim made by the plaintiff for leave in accordance with paragraph (c) of the definition, in that she suffers a severe long term mental or severe long term behavioural disturbance or disorder, I am again unable to accept the plaintiff as a reliable witness in support of such an application. I accept the opinion of Dr Hayman who reported to the defendant’s impairment team on 24 January 2013. He concludes that the best descriptor of the plaintiff’s symptom complex would be:
“Chronic pain disorder associated with both psychological factors and a general medical condition” and “Chronic adjustment disorder with depressed and anxious mood with features of traumatisation”.[50]
He regarded the plaintiff has having significant depressive symptoms at that time:
“She also has ongoing anxiety and avoidance phenomena with regards to driving.”[51]
[50]Exhibit 2, 49.
[51]Exhibit 2, 49.
42 Dr Hayman regarded the plaintiff as “appearing genuine in her attempts to try and move on as best she can”. He stated she: “was increasingly reliant on her carer and assistance at home.”[52] I cannot make a similar assessment of the plaintiff on the whole of the evidence I have received in this case.
[52]Exhibit 2, 51.
43 The plaintiff’s solicitors obtained opinions from Dr David Weissman, consultant psychiatrist, who reported on three occasions, most recently on 30 January 2014. He concludes that on purely psychiatric grounds alone, the plaintiff remains totally incapacitated for work.[53] Dr Weissman’s three reports are all prepared on the basis of very detailed information being provided to him by the plaintiff. On the first occasion he saw the plaintiff in November 2012, he was given this history:
“I asked her about her leisure activities and hobbies and she replied, ‘nothing’. … She told me that she has lost all of her friends except for Dot (who attended the interview).”[54]
[53]Exhibit D, 98(s).
[54]Exhibit D, 87.
44 On a second interview in November 2013, Dr Weissman was given the following new history:
“At this stage of the interview she appeared to be quite concerned about TAC’s alleged surveillance of her and investigations of her activities. She told me that her rehabilitation specialist had encouraged her to try and walk without a walking stick. … She told me that the other day she did some weeding, on the side pathway, on her bottom. She told me that she has started to socialise a little bit more.”[55]
[55]Exhibit D, 98(d).
45 He again noted that at that stage the plaintiff was using a four wheel walker frame.[56] He concluded at that time that the plaintiff was most probably totally incapacitated for all work, including so called “suitable duties” and that she was not a candidate for paid employment on the open labour marketplace. This was based on purely psychiatric grounds alone.[57] Dr Weissman restated that same opinion in a supplementary report to the plaintiff’s solicitors dated 30 January 2014.
[56]Exhibit D, 98(f).
[57]Exhibit D, 98(m).
46 The plaintiff is having ongoing fortnightly psychological counselling from a Ms Vicki Palmer. Extracts of her clinical notes are placed before the Court.[58] There is no formal report from her. The plaintiff had previously seen Ms Kayleen Evers, who expressed an opinion that:
“The effects of her injuries both physically and psychologically impact negatively on other areas of her life rather than the reverse being true.”[59]
[58]Exhibit D, 163(a) to 163(l).
[59]Exhibit D, 53.
47 There are no dates recorded for the treatment but it would appear from her first report that she was the first psychologist to whom the plaintiff was referred and predated the current treater.
48 In relation to my conclusions concerning the mental or behavioural disturbance or dysfunction, I accept that the plaintiff has suffered some level of emotional reaction which initially produced quite serious consequences for her, at least in terms of an inability to work and a disinclination to engage in social or recreational activities. As a matter of probability, I find that Dr Weissman was given an incorrect history by the plaintiff as to her level of engagement in social and recreational factors at least from about the middle of 2011 or early 2012. I do not accept that the opinion of Dr Weissman based on an erroneous history is of great assistance to me. I am prepared to accept the opinion from Dr Eavers, initial treating psychologist, to the extent that:
“Ms Dougherty’s psychological deterioration is consistent with the accident and with the sequelae of the effects of her physical condition resultant from the accident.”[60]
[60]Exhibit D, 53.
49 Having found that the plaintiff’s level of activity at least in social and domestic areas has improved from about mid-2011 or at the very latest early 2012, I am unable to be satisfied that any ongoing mental or behavioural disturbance or disorder could properly be described as severe.
Conclusion
50 Given the unsatisfactory evidentiary basis underlying the medical opinions in this case, and my reluctance to accept the plaintiff as a reliable witness, I am not satisfied that the plaintiff has proved on the balance of probabilities that she has suffered a serious injury in terms of either paragraph (a) or paragraph (c) of the relevant definition as a result of injuries received in the transport accident occurring on 11 November 2009. The application will therefore be dismissed.
51 I will hear the parties on the formal orders and the question of costs.
- - -
0
3
0