Dunston v Transport Accident Commission
[2017] VCC 839
•26 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-05972
| BRONWYN TRACEY DUNSTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 April 2017 | |
DATE OF JUDGMENT: | 26 June 2017 | |
CASE MAY BE CITED AS: | Dunston v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 839 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) and paragraph (c) of the definition of “serious injury” – serious long-term impairment or loss of a body function, being the spine – severe long-term mental or severe long-term behavioural disturbance or disorder – credit of the plaintiff
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie [2000] VSCA 50; Philippiadis v Transport Accident Commission [2016] VSCA 1; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application in relation to paragraph (a) dismissed. Application in relation to paragraph (c) granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms J Zhu | Slater & Gordon Ltd |
| For the Defendant | Mr D Myers with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Bronwyn Dunston seeks leave or permission to start a proceeding for damages under s93(4)(d) of the Transport Accident Act 1986 (“the Act). She says she was injured in a transport accident on 2 December 2008. She says she suffered a serious injury, being:
(a)a serious long-term impairment or loss of a body function, being the spine;
(b)a severe long-term mental or severe long-term behavioural disturbance or disorder.
2 As one might expect with an accident occurring so many years ago, the parties have gathered many documents. There are hundreds of pages of medical and psychological reports. I heard from Ms Dunston. She swore five affidavits: the first in 2010; and the last in April 2017. There are three other affidavits. There are many other documents. I was not invited to read all of them.
Circumstances
3 Ms Dunston is forty-nine. In her first affidavit, she described the accident:[1]
“On or about 2 December 2008, I was involved in a transport accident. I was the driver of my vehicle and was driving along the Western Highway in the left lane. An adjacent truck in the right lane changed into my lane and connected with my car. The truck then swerved back into its lane, causing me and my car to spin. I recall my car spun across the lane that the truck was travelling in and the truck then impacted directly with my car, causing it to roll.
The impact of the accident was a significant one. I thought I was going to be killed. I recall feeling shocked and confused. After the impact, my vehicle was upside down and many people were around. I believe someone opened my car rear passenger door, and I managed to get out of the car in that way.”
[1]Affidavit sworn 26 May 2010 at paragraphs [3] and [4] (Plaintiff’s Court Book (“PCB”) 6)
4 Her neck, back and head were injured.[2] She was taken to the Royal Melbourne Hospital by ambulance and discharged the same day after various tests.
[2]At paragraph [5]
5 Before the accident, Ms Dunston had had a significant involvement with doctors, psychiatrists and psychologists.
Early life
6 Ms Dunston was born in Footscray. She lived in Deer Park and St Albans before moving to Rubyvale in Queensland. Her father was an alcoholic. He separated from her mother when she was eight or nine years old, and died in 1997. After separation, her mother formed many relationships and the family moved from place to place, often in Queensland and New South Wales. Her mother abused her physically and emotionally. Ms Dunston attended many primary schools, some more than once. She always had a weight problem and was bullied at school. At ten, she went to Perth. At thirteen, she entered an accelerated program at high school because of her intelligence. Her brother left the family and returned to Melbourne to live with his father. Her brother had problems with drugs and the police. A number of times he attempted suicide. Ultimately, he was diagnosed with a Bipolar Disorder. Even though living in Melbourne now, she sees little of him or their father.
7 Ms Dunston completed Year 12 in 1985 and attended the University of Western Australia. She started a Bachelor of Business degree but left it in the first year. She then started a course in rural journalism at Curtin University, but left after a year-and-a-half of part-time study.
8 While at Curtin University, she was employed by the Department of Planning and Urban Development, which lasted for more than four years. She then worked for a superannuation company, Excelsior Management, for a year. In 1994, she returned to Victoria and worked for a year as a unit trust advocate for Norwich Financial Services. She then worked for the State Government for a year before starting a Bachelor of Dramatic Art Production. She completed this degree in 1997. She went to Canada for three months for a work study program and a two-month internship in the United States.
1990
9 Ms Dunston injured her lower back in a car accident. She recovered but had six sessions with a psychologist dealing with pain management.
2000‒2006
10 Between September 2000 and December 2002, Ms Dunston worked for the Victorian Arts Centre as a sound technician. It was casual employment and she worked about 30 hours each week. She was subjected to bullying there and needed psychiatric help. This came from a psychiatrist, Dr Norman Lewis. He first saw her on 12 December 2002. She resigned from the Arts Centre on 31 December 2002.
11 In September 2002, Ms Dunston started work for the Box Hill TAFE as a lecturer in sound for live entertainment. This involved 30 hours each week. The employment lasted until January 2006. Overlapping part of this period, between 2003 and 2005, she worked casually for the National Theatre as a theatre technician.
12 In February 2005, she worked as a stage manager on “Madame Butterfly” for the Melbourne Opera Company and, in April, as a venue manager for the Castlemaine State Festival.
2003
13 In his first report, Dr Lewis records her history of the events at the Arts Centre.[3] Between their first meeting and the date of the report, Dr Lewis saw her five times. He diagnosed post-traumatic stress of an anxious and depressed type. She had the capacity to work at what she was then doing, but not her work at the Arts Centre. She was then teaching at Box Hill TAFE, three-and-a-half days or 26 hours. He prescribed Prothiaden, 25 milligrams, to be taken at night.
[3]Report dated 3 April 2003 at pages 1-2 (PCB 438-448)
14 On 27 February, Dr Nitin Dharwadkar, a psychiatrist, examined Ms Dunston on behalf of an authorised agent. He records in some detail her version of the events at the Arts Centre under the heading “Incident details”.[4] He diagnosed an Adjustment Disorder with Anxiety and Depressive symptoms. He saw four real and one possible “contributing stressor” to her condition: childhood history suggestive of emotional deprivation; vulnerable personality traits; family history of depression and drug dependence, and not being given a contract despite being promised one and despite her assumption she was the most suitable person. The possibility was a past history suggestive of psychiatric symptoms. Dr Dharwadkar considered she had a partial incapacity for work.
[4]Report dated 27 February 2003 at pages 4-6 (PCB 403-413)
15 On 10 March, Dr Adrian Feiglin, a general practitioner, wrote to an authorised agent.[5] He practised at a clinic called Medi 7. Ms Dunston had been a patient of the clinic since 1994 and his patient since 1996. He diagnosed depression, which was caused by her employment. She could work outside the Arts Centre without restriction. She should recover from the depression, but it would take up to twelve months of psychotherapy and anti-depressant therapy.
[5]Report dated 10 March 2003 (PCB 431-432)
2004
16 On 29 March and on 1 April, Dr Dharwadkar saw Ms Dunston again.[6] She said she was significantly better than when she saw him in 2003. However, some interesting matters arose. She said she binged once every two weeks (Bulimia). She had not purged that year. Since their last meeting, she had cut herself with a scalpel four times, not to kill herself but to feel the pain. She had thought of dying. Dr Dharwadkar maintained his diagnosis. He added sexual harassment from “hirers” to his list of contributing stressors. He now considered she had no incapacity for work, adding “from a real life perspective Ms Dunstan will return to work at the Arts Centre only after some of the stated issues are resolved”.[7]
[6]Report dated 29 March 2004 (PCB 414-422)
[7]At page 8
17 On 4 May, Dr Feiglin wrote again to the authorised agent.[8] Owing to matters raised in the authorised agent’s letter to him, Ms Dunston told Dr Feiglin of three incidents in 2000 and 2001. His diagnosis changed to post-traumatic stress with depression and anxiety, which was the diagnosis of Dr Lewis. More importantly, “in the light of my awareness of her current condition and factors precipitating it” he felt she would require at least two years of additional treatment.
[8]Report dated 4 May 2004 (PCB 433-434)
18 Evelyn Field is a psychologist. On 31 May, she wrote to Ms Dunston’s trade union.[9] By then, she had seen Ms Dunston seven times. She diagnosed Ms Dunston as suffering from Depression and Post-Traumatic Stress Disorder. She took issue with Dr Dharwadkar’s diagnosis of an Adjustment Disorder. Ms Field said Ms Dunston had the capacity to work at the Box Hill TAFE, but not the Arts Centre. It would take a few years for Ms Dunston to totally recover from the abuse experienced at the Arts Centre, and recommended she receives medical treatment and counselling for the next three years.
[9]Report dated 31 May 2004 (PCB 471-478)
19 On 3 June, somewhat surprisingly, Dr Lewis saw Ms Dunston at the request of the authorised insurer and reported to it.[10] He set out in great detail her version of events at the Arts Centre. She was still taking Prothiaden, 25 milligrams at night, which helped her sleep. He noted her teaching at Box Hill TAFE, teaching 26 hours each week and was “just coping”. He also noted she had worked at the Arts Centre for about 30 hours each week and before that she did freelance work up to 40 hours each week, and now she does not know whether she has the competence to work on shows anymore. His diagnosis altered to post traumatic stress, anxiety and depression, with panic attacks. She lacked the capacity to perform her pre-injury duties as a sound technician but is able to undertake her present work.
[10]Report dated 4 June 2004 (PCB 449-461)
2005
20 On 9 August, Ms Field wrote again.[11] Although saying Ms Dunston is coping better, Ms Field noted:
“She cuts herself when very stressed, she had difficulties with bulimia, sleep difficulties, flashbacks, irritability, memory difficulties, claustrophobia, panic attacks, her social life has deteriorated, she is not keen on going out. She gets teary and is deeply affected when events remind her of the bullying.”
[11]Report dated 9 August 2005 (PCB 479-483)
21 Ms Field maintained her diagnoses, saying Ms Dunston was partially incapacitated for work. She commented:
“Bronwyn is currently working although she is feeling very unhappy there. She has not had any rehabilitation but does require counselling to cope with what she experienced at the VAC and to cope with the difficulties and bullying she is experiencing in her current position.”
22 Ms Field recommended another twelve months of counselling, covering about 24 sessions. Ms Dunston stopped seeing Ms Field one or two years before the accident on 2 December 2008.
23 On 24 August, Dr Lewis saw Ms Dunston at the request of her then solicitors. In response to his questions, Ms Dunston told him: she often becomes irritable and bad-tempered; her anger with students had improved; she does not recall information as she once did; she loses items easily; she is fearful of driving; she has panic attacks every two weeks; she is depressed with lowered mood, loss of interest, motivation and energy; she feels helpless, hopeless and worthless, and occasionally she feels suicidal.
24 His diagnosis was now Post-Traumatic Neurosis to a moderate degree. She had the capacity to teach. As to her pre-injury work, he said: “She has retained her technical skills but when in the company of other sound technicians she shuts down and feels incompetent.” He felt, in the short- term, her prognosis for pre-injury duties was poor, but with psychiatric treatment there could be improvement.
25 On 28 September, Dr Feiglin wrote to Ms Dunston’s then solicitors.[12] He maintained his diagnosis. As to prognosis, he said:
“Ms Dunston’s prognosis is guarded. Initially in reports to the insurer I expected she would require 1-2 years of treatment. She has now been receiving treatment for almost 3 years from a psychiatrist with little obvious improvement and I expect she will require several more years of regular psychotherapy and/or anti depressant therapy. Even at the end of this the psychological damage suffered from her work experiences will affect her forever.”
[12]Report dated 28 September 2005 (PCB 435-437)
26 During this year, Ms Dunston completed a Diploma of Training and Assessment Systems and a Diploma of Entertainment.
2006
27 From 2 December until 28 May 2007, Ms Dunston received a Newstart allowance. However, for most of the year she worked in one capacity or another:
· January and ongoing: casual theatre technician with the National Theatre, Melbourne;
· 3 to 30 January: stage manager for “La Traviata” for the Melbourne Opera Company;
· 26 January: stage manager for “Australia Day Parade” for Explosive Media;
· 15 March: stage manager for “Covent Gardens National Opera Studio Scholarships Awards” for Opera Foundation Australia;
· 27 May to 1 December: audio-visual lecturer and technician for the Victorian College of the Arts;
· 20 to 27 June: stage manager for “Monumental”;
· 10 September to 15 October: stage manager for “Monumental”;
· 3 to 4 December: stage manager for “End of Year Show” for the Swinburne Institute of Technology; and
· at various times during December as a radio microphone technician for Guy Carrison Productions.
2007
28 During this year, Ms Dunston worked with various employers in two States:
· January ongoing: casual theatre technician for the National Theatre, Melbourne;
· January to March: casual theatre worker for the Melbourne University Students’ Union;
· 15 February to 15 April: lecturer in technical co-ordination at Holmesglen Institute;
· 15 March to 15 April: technical stage manager at the Melbourne International Comedy Festival;
· 8 May to 9 August: head stage manager and assistant technical manager at Ogden AEG (Perth Concert Hall);
· 13 August to 25 September: stage manager for “Crossing Live” by the Chamber Made Opera;
· October to December: casual theatre technician for the National Theatre, Melbourne;
· November to December: radio microphone technician with Guy Carrison Productions; and
· 20 November to 20 December: casual sound technician with the Princess Theatre, Melbourne.
29 As can be seen, Ms Dunston moved back to Perth, working at the Perth Concert Hall as an assistant technical manager and then head of stage management. Despite wanting to stay in Perth, she returned to Melbourne.
2008
30 During this year, Ms Dunston worked for various employers:
· 4 February to 4 April: consultant to Chamber Made Opera;
· 15 March to 15 April: technical stage manager to the Melbourne International Comedy Festival;
· 16 to 22 April: stage manager to “Monumental”;
· 1 May to 14 June: production manager for “The Children’s Bach” with Chamber Made Opera;
· 15 June: stage manager for “Monumental”;
· 24 July to 24 August: stage manager for “Gods & Sinners” for Pacific Opera in Sydney;
· 3 to 19 October: stage manager for “The Lower Depths” for Ariette Taylor Productions in Melbourne;
· early November: theatre technician for the National Theatre in Melbourne; and
· 26 November to 1 December: production manager for “The Impossible Zoo” for the Polyglot Puppet Theatre in Melbourne.
31 On 21 February, Nellie Lucas, a psychologist, saw Ms Dunston, on referral from Dr Lewis. Ms Lucas saw her weekly or fortnightly.
32 After leaving the Chamber Made Opera, Ms Dunston went to Sydney and worked for Pacific Opera as a stage manager between June and August. Returning to Melbourne, she worked on short-term contracts.
33 On 2 December, the transport accident occurred. At the time, she was employed as a production manager by the Polyglot Puppet Theatre on a short-term contract. The accident brought this contract to an end.
34 On 9 December, she saw Dr Fisher, part of whose note reads:
“MVA last week on morning of 2/12/08 – sideswiped by truck / car spun, was hit & rolled over.
Still has back pain / headaches / nausea / sore buttocks / L leg weak - almost giving way - pain upper thigh - esp going upstairs /uphill. Getting worse.
Taken by ambulance to RMH ED - had CXR / R knee Xray - no #. Sent home after observation
LOC - able to get herself out of the car. No recollection of period from then until in ambulance.
O/E No tenderness over spine.
Full ROM all levels - pain c neck ant flexion / lateral spinal rotation / flexion.
SLR 90 deg L=R.
Mild reduction L hip abduction.
Anxious / tearful during consultation.
… .”[13]
[13]Defendant’s Court Book (“DCB”) 3
35 X-rays taken on 11 December show no abnormalities of the spine and left hip due to the accident.[14]
[14]PCB 250
2009
36 From 18 December 2008 until 18 September, Ms Dunston received income benefits from the defendant. At much the same time, she continued to work:
· January: stage manager for Chamber Made Opera;
· 16 to 22 February: stage manager for “Monumental” (Moriarty’s Project) in Sydney;
· 30 March to 4 April: tour preparation for Moriarty’s Project;
· April to May: stage manager for “Monumental” in the United States;
· June: director in “Great Leap Forward”;
· 24 August to 6 May 2010: market co-ordinator for the Melbourne University Student’s Union. This involved about 28 hours each week.
37 On 11 February, she attended the Melbourne Physiotherapy Group for the first time. For more than two years, she attended for 68 sessions of physiotherapy, hydrotherapy and clinical Pilates until 14 June 2011.[15]
[15]Reports dated 17, 22 September 2009 and 24 April 2012 (PCB 164-168 and 209-211)
38 From 7 April to 3 May, Ms Dunston toured the United States as a stage manager for Moriarty’s Project Inc. It performed a work called “Monumental”. Over there, she contracted a severe respiratory infection. In the years following, she was engaged for short periods as a stage manager for this work.
39 Dr Helen Fisher is a general practitioner. She took over the care of Ms Dunston from Dr Feiglin. On 24 March, she wrote to the defendant.[16] In relation to the accident, she first saw Ms Dunston on 9 December 2008. She noted the Post-Traumatic Stress Disorder, which existed before the accident, and the increased anxiety since with the experience of flashbacks. Physically, she noted headaches and dizziness, neck and back pain, and weakness in the left hip. The headaches and dizziness continued. The neck and back pains were improving with physiotherapy and Pilates. The hip problem resolved after two weeks. Dr Fisher thought Ms Dunston could return to work on reduced hours and modified duties because of pain in the upper back and shoulder and the dizziness.
[16]Report dated 24 March 2009 (PCB 150-151)
40 In October, Ms Dunston saw Dr Fisher, complaining of memory loss, difficulty in doing calculations, errors with language and writing and co-ordination problems. A CT scan of the brain was normal.[17]
[17]Report of Dr Fisher dated 24 May 2011 (PCB 154-156). The report of the CT scan appears at PCB 252
41 On 26 October, Dr Lucas wrote to Ms Dunston’s solicitors. As I said earlier, Dr Lucas started treating Ms Dunston on 21 February 2008 and saw her regularly afterwards. At the time of the transport accident, Ms Dunston was experiencing mild symptoms of a Post-Traumatic Stress Disorder related to the bullying at the Arts Centre. However, the accident had increased some of the mood symptoms (which had partially resolved) and created new ones.
42 The starting point is that Ms Dunston thought she would die in the accident. For a number of weeks she had recurrent and intrusive recollections of the accident. Only in the second half of 2009 did she start driving again. Her fear of another accident had reduced. She can now return to the accident scene and drive along the same section of the road. She has difficulty recalling the names of colleagues. She overlooks steps in calculating, say, the cost of hiring microphones. She has difficulty following sequenced actions. She has difficulty organising things at her home. She is somewhat disoriented.
43 In her report, Dr Lucas discussed those existing symptoms which were made worse by the accident. For a time after the accident, Ms Dunston was emotionally numb and uninterested in engaging in pleasurable activities. During 2009, she increasingly thought of suicide to such an extent that Dr Lucas referred her back to Dr Lewis. He increased her anti-depressant medicine and she so improved that the issue disappeared. At the time of writing, Dr Lucas said Ms Dunston was not experiencing mood problems and she was slightly less angry and irritable.
44 Dr Lucas was positive. She expected the majority of Ms Dunston’s psychological symptoms to resolve. Psychologically, she could return to her pre-accident employment.
45 On 12 November, Dr Lewis wrote to Ms Dunston’s solicitors.[18] He diagnosed a recurrence of a Mild Depression as a result of the accident. She stopped seeing Dr Lewis, accusing him of cruelty to her. She was seeing a psychologist who thought Dothep, 100 milligrams, sufficient to keep her stable. Dr Lewis felt she had stabilised. There was little chance of deterioration provided she kept on high dosages of anti-depressants. She remained unfit for her pre-accident employment.
[18]Report dated 12 November 2009 (PCB 176-183)
46 On 1 December, Dr Nathan Serry, a psychiatrist, saw Ms Dunston on behalf of her solicitors.[19] The results of Dr Serry’s “mental state examination” are interesting:
“Your client was a pleasant and cooperative, neatly attired woman of very solid build and who appeared her stated age. She was a reasonably clear, intense and somewhat labile historian who was quite anxious and apprehensive. There were prominent residual post-traumatic anxiety features. There was a reduced affective range with underlying depressive themes. There was no abnormality of thought stream or form but thought content revealed a marked and ongoing preoccupation with the accident and its impact. There were no first-rank psychotic features but your client did describe some depersonalization and previous disassociation on the road. Cognitive assessment revealed subjective complaints but no gross abnormality. Insight was reasonably well-maintained.”
[19]Report dated 6 January 2010 (PCB 254-261)
47 Before the accident, Dr Serry thought Ms Dunston suffered from a Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation secondary to workplace bullying and harassment. Following the accident, she suffered from Major Depression with anxious, including post-traumatic anxiety, features. His prognosis was “somewhat” guarded because of her premorbid vulnerability. This vulnerability came from the strong family history of psychiatric illness, dysfunctional childhood and a past history of psychiatric disturbance secondary to workplace issues.
48 On 16 December, Mr Kevin King, an orthopaedic surgeon, examined Ms Dunston at the request of her solicitors.[20] Based on her version of the accident, his examination and what he believed x-rays showed, Mr King diagnosed a chronic impairment of the neck and back of mild to moderate severity. The impairment came from persistent neck and low back pain and stiffness. He considered the pain and stiffness was the result of generalised trauma to the cervical, thoracic and lumbar discs and associated ligamentous structures. There was possible trauma to the articular surface of the right hip joint.
[20]Report dated 16 December 2009 (PCB 297-303)
2010
49 Ms Dunston remained employed by the Melbourne University Student Union until 6 May. She did other work during and after that employment. However, there were three periods in which she was unemployed and received the Newstart Allowance (7 to 28 May; 14 June to 18 October; and 25 October to 23 May the following year). The other employment, paid and unpaid, was:
· January to February: director in “3 Steps Forward”;
· 20 April to 28 May: tour preparation for Moriarty’s Project;
· 1 June to 5 June: stage manager for “Monumental” in Italy;
· 28 June to 29 October: tour, stage and production manager with the Ilbijerri Theatre Company;
· August: director in “Glass Clouds”;
· 13 to 15 October: tour preparation for Moriarty’s Project; and
· 19 to 24 October: stage manager in “Monumental” in London.
50 From 28 June to 29 October, the Ilbijerri Theatre Company hired her as the tour manager and stage manager for a play called “Body Armour” and production manager for another play called “Jack Charles v The Crown”. Her position was full-time, 40 hours each week. The second play was planned to open on 12 October and close on 17 October even though the contract ran to 29 October. From 13 to 15 October, Ms Dunston prepared for a tour of “Monumental” for Moriarty’s Project Inc. It was performed in London between 19 and 24 October with her as the stage manager.
51 On 14 January, Mr Richard Stark, a neurologist, examined Ms Dunston at the request of her solicitors.[21] Instead of a diagnosis, he said, in answer to a question from the solicitors:[22]
“This lady has evidence of right median nerve dysfunction in the hand, right lateral cutaneous nerve of thigh dysfunction and reports symptoms consistent with soft tissue injuries to the neck and lower back without evidence of radiculopathy.”
[21]Report dated 14 January 2010 (PCB 308-311)
[22]At page 311
52 Dr Fisher referred Ms Dunston to another psychologist, Ms Hettie Dubow, who saw her for the first time on 24 June. Ms Dubow treated her depression, anxiety and Post-Traumatic Stress Disorder. Ms Dubow continues to treat her. Below I refer to her report dated 20 February 2011. In it, Ms Dubow records Ms Dunston’s experiences with the Ilbijerri Theatre Company:[23]
“Her last contract, as Stage and Production Manager ended in December 2010. She completed this contract with great difficulty and felt that she was unreliable in her duties (eg ‘I directed the show differently each time’; could not remember previous discussions with colleagues regarding specific issues; found it very difficult to make split second complex decisions during a performance). Ms Dunston expressed that she can no longer work effectively in a role as Stage and Production Manager.”
[23]At page 187
53 My attention was drawn to Ms Dunston’s attendance on Dr Fisher on 12 October. The latter’s note reads, in part:
“Flying to London next week - working.
Requests script for analgesia / a’biotic - precautionary. Often gets chest infections when travelling.
Away 6/7.
Maculopapular rash upper chest wall - using Sigmacort.”[24]
[24]DCB 14
54 Despite the narrative, Dr Fisher wrote two prescriptions: one for Klacid; the other for Panadeine Forte, 500 milligrams, 30-milligram tablet, one to two tablets every four to six hours, with a maximum of eight per day.
55 The month before, on 16 September, Dr Fisher noted, in part:
“Recent short regional tour for 4/52 - increased arm paraesthesia L>R, numb area R thumb / needed to constantly use walking stick after 1st week - always tired despite it being a ‘small’ show.”[25]
[25]DCB 14
56 The “small show” must be a reference to the play “Body Armour” which toured between 2 and 27 August.
57 On 16 November, Dr Ian Stuart, neuropsychologist, examined Ms Dunston at the defendant’s request.[26] Dr Stuart was given certain documents, two of which I have not seen but sound interesting.[27] On page 4 of the report, he sets out a list of what she said were problems. After tests, he concluded:
“Overall, my impression is that Ms Dunston does not suffer from an organic impairment in her memory or executive functioning, but she does suffer from an attentional disorder which affects her performance on a range of tests. In my opinion this problem causes a severe slowing in the speed of information processing and severe problems in managing complex information. This situation is consistent with the traumatic nature of the events which occurred in the accident; although she may have suffered a mild traumatic brain injury, the overwhelming impression is of a severe reaction to the trauma and stress of the accident.”[28]
[26]Report dated 17 December 2010 (DCB 54-63)
[27]He refers to a letter of Ms Dubow dated 16 August 2010 and a TAC Clinical Panel Consultant Review dated 21 September 2010
[28]DCB 62
58 After noting comments from Dr Serry and Ms Dubow, Dr Stuart continued:
“In other words it is clear that Ms Dunston’s speed of information processing and concentration have been severely affected by her experiences in the accident and, in my opinion, form part of the post-traumatic stress disorder. This type of problem can have a major impact on the ability to perform complex tasks. Activities that are normally automatic are affected by the poor concentration and slow speed of information processing so that simple tasks become effortful. This means that tasks which are performed frequently throughout a normal day’s activities such as concentrating, warding off distractions, monitoring ongoing performances, planning the day’s activities and conversing with background noise become effortful and can lead to errors and to a severe degree of fatigue. The fatigue then exacerbates the problems so that the patient becomes more distractible and may make mistakes when speaking etc.
This leads to a chronic anxiety disorder which pervades her daily performance and adds to her stress. The was seen on the Post Concessional Syndrome Scale where she endorsed six items as severe problems including dizziness, nausea, noise sensitivity, irritability, poor concentration and taking longer to think. She identified sleep disturbance, feeling depressed, poor memory and restlessness as moderate problems.”[29]
[29]DCB 62
59 On 22 November, Dr Timothy Entwisle, psychiatrist, saw Ms Dunston at the request of the defendant.[30] This interview occurred shortly after finishing with the Ilbijerri Theatre Company. Dr Entwisle was given a number of documents including reports from Dr Lucas and Dr Lewis. Her affect was anxious. Her thoughts contained various themes related to her upbringing, workplace bullying and the accident. Her memory and concentration were intact. He diagnosed an Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation. He added:
“Ms Dunston has a vulnerable personality due to her unstable developmental experiences. There is a family history of psychiatric illness also. She has been significantly impacted by her early childhood experiences and has never formed a long term relationship. She impresses as a suggestible person.”
[30]Report dated 30 November 2010 (DCB 47-51)
2011
60 As with the previous year, the Newstart Allowance was the main source of her income. It went to 23 May, ceased, restarted in July and continued until June the following year. During August and September, Ms Dunston did some work:
· 1 to 6 August and 8 to 13 August: pre-production and stage management in “Curse of the Ring” for More Than Opera;
· 7 to 19 August, 20 to 30 August and 30 August to 12 September: tour preparation, rehearsals and stage manager for “Monumental”; and
· 1 to 21 September: director in “Self Contained Spaces” for Second Skin.
61 On 20 February, Ms Dubow wrote to Ms Dunston’s solicitors.[31] She did so in response to their request. By then, she had seen Ms Dunston on 23 occasions. In writing her report, Ms Dubow was aware of the reports of a number of other doctors. As a result of the accident, she thought there had been a worsening of her psychiatric symptoms and the development of cognitive impairments:
(a)impaired concentration and slowing in information processing: in this, Ms Dubow relied on the report of a neuro-psychologist, Dr Ian Stuart;
(b)the development of more severe depressive and anxiety symptoms.
[31]Report dated 20 February 2011 (PCB 185-191)
62 Ms Dubow observed improvement of her mood and anxiety symptoms during treatment and expected further improvement. However, there had been no improvement in her cognitive functioning. “Ms Dunston is unfit for work as a stage or production manager and other employment requiring the ability to concentrate, process information quickly, multi-task and problem solving.”
63 On 1 March, Dr Clive Kenna, a physician, examined Ms Dunston at the defendant’s request.[32] The defendant’s request was narrow. It sought his view on the continued need for physiotherapy and supervised Pilates. Nevertheless, Dr Kenna went about his task in some detail. Ms Dunston spoke of neck pain, radiating across the lower neck and into the interscapular region. She had pain radiating from the back into the right hip, sometimes with numbness in the right anterior thigh.
[32]Report dated 3 March 2011 (DCB 65-70)
64 On his examination, Dr Kenna noted Ms Dunston’s obesity was causing no muscle tone and postural deformity. She had good functional mobility of the cervical spine and an ability to lift her arms well above shoulder height. Her gait was slightly antalgic. The main area of complaint was in upper dorsal area. There was a loss of thoracic kyphosis and almost reverse lordosis. Flexing of her cervical spine reproduced her interscapular symptoms.
65 Overall, Dr Kenna thought the soft tissue impact of the accident was waning and substantially, the overall clinical presentation was fundamentally intrinsic to Ms Dunston rather than any extrinsic factors.[33]
[33]At page 69
66 Dr David Tofler is a psychiatrist. He treated Ms Dunston on four occasions between 27 September and 6 December 2010.[34] Between those dates, Dr Tofler considered she had improved. She still had fluctuating mood, variable sleep, recurrent memories of the accident, and difficulties in concentration, focus and motivation. She still had shoulder and neck pain with improvement in the pain in her right leg, buttock and thigh. Her mobility had improved.
[34]Report dated 17 March 2011 (PCB 205-208)
67 When writing his report, Dr Tofler had reports from various specialists, Dr Fisher and the psychologist, Ms Dubow. His following comment is interesting for I suppose it is a synthesis of sources of information including his own attendances upon Ms Dunston:[35]
“When first seen Miss Dunston was considered to have a long-standing dysthymic disorder associated with fluctuations, a moderate degree of anxiety and depressive symptoms and an associated PTSD which had arisen in relation to the motor vehicle accident in 2008. There was a significant improvement in her depressive symptoms and anxiety symptoms but she continued to have posttraumatic stress symptoms although of reduced intensity. She continued to have residual dissociative symptoms which would have existed prior to the accident and been accentuated by the accident and the worsening anxiety and depression. These symptoms should continue to improve with ongoing counselling with Ms Hettie Dubow, continuing work at her Pilates, relaxation and meditation techniques and successful return to the work force.”
[35]PCB 207
68 At his last session, Dr Tofler gained insight into Ms Dunston’s childhood years:[36]
“On review on the 6th December 2010 she was able to speak more about the traumatic events of her child[hood] with her mother moving around a lot, having to either run away because of an inappropriate partner [or] run away with a partner because of ‘something else chasing them’. Bronwyn was a particularly gifted student but her mother was very changeable and would often try [to] control her children. She would punish them all if one of them had misbehaved and Bronwyn remembered being beaten with various implements at different times and troubled by the rule she would be beaten more if she continued crying. She reported her awareness that she coped with a lot of these traumatic experiences with dissociation. The dissociative symptoms could have contributed to her difficulty with attention and concentration and she noted that this and a lack of focus were part of the reason she dropped out of first year uni at the UWA.”
[36]PCB 207
69 One supposes the Dysthymic Disorder was, in part, a product of her childhood.
70 On 24 May, Dr Fisher wrote to Ms Dunston’s solicitors.[37] By then, she had seen Ms Dunston about her injuries on twenty-eight occasions. She noted that Dr Lewis had increased Ms Dunston’s anti-depressant medication, Dothep, from 25 milligrams to 50 milligrams and then to 100 milligrams in May 2009. In October 2009, the results of a CT scan of her brain were normal. She saw psychiatrist, Dr David Tofler, who changed her anti-depressant medicine from Dothep to Lexapro in October 2010.
[37]Report dated 24 May 2011 (PCB 154-156)
71 Dr Fisher saw the need for treatment for another twelve to twenty-four months involving physiotherapy, hydrotherapy, Pilates and psychotherapy; the first three for Ms Dunston’s back and left leg. She was capable of some work “but needs to modify the work done according to both her physical capacity and cognitive impairment”.
2012
72 During the entirety of 2012, Ms Dunston received a Newstart Allowance. She did other work:
· 6 to 27 February: stage manager in “Tower Suites” for Moriarty’s Project;
· 28 February to 15 May: director of “Glengarry Glen Ross” for the Trinity College Drama Society; and
· 19 September: production consultant on “The Ring” for More Than Opera.
73 In addition, between 6 June and 4 November 2012, she worked as an administrator for Aesthetic Pty Ltd. This was a part-time position for which she was paid $13,382 for a period of about seventeen months.
74 On 24 April, Samantha Wilson, physiotherapist, wrote to Ms Dunston’s solicitors setting out the involvement of the Melbourne Physiotherapy Group between March 2009 and June 2011. When asked about “pre work capacity”, Ms Wilson could not comment, adding:[38]
“... but she has just completed a 3 week contract working as a stage manager. She was fortunate to negotiate terms of her employment to include nil lifting, minimal walking and rest periods 1-2 times a day where she was able to lie down and rest.”
[38]Report dated 24 April 2012 (PCB 211)
75 On 10 July, Dr Fisher wrote to Ms Dunston’s solicitors.[39] By then, Ms Dunston had seen her thirty-seven times. Among other things, she noted Ms Dunston had restarted using a walking stick. She also noted that in January 2012, Ms Dunston was more anxious because of a threatening, hostile housemate, resulting in her obtaining a personal safety intervention order. This lessened her anxiety, along with treatment and medicine.
[39]Report dated 10 July 2012 (PCB 157-159). See also clinical notes appearing at DCB 20
76 Dr Fisher said her progress was positive. It was slow regarding her mental health issues and she would need one to two years of psychotherapy. She needed therapy for her musculoskeletal problems if there was to be improvement. As to capacity for work, she thought excessive fatigue limited Ms Dunston to 20 hours each week. There was difficulty with her short-term memory and cognition, especially with the sequencing of complex tasks.
2013
77 Again, Ms Dunston received a Newstart Allowance for the entire year. She did six pieces of work, four of which were paid:
· 9 February: production consultancy in “The Ring” for More Than Opera;
· March to April: director of “The Gentleman & Thief” for the Melbourne University Student Union Theatre;
· 6 to 18 May and 19 to 23 May: tour preparation and stage manager for “Monumental”; and
· September: director/producer of “Othello: Death Poll” for the Melbourne Fringe Festival.
78 Between April and November, Aimee Turner, physiotherapist, treated Ms Dunston weekly. Two years later, she wrote to Ms Dunston’s solicitors.[40] Ms Turner treated her for longstanding neck, upper and lower back pain, pelvic instability and weakness in the upper limbs. These problems caused difficulties in standing, sitting, driving and managing stairs. Her level of pain varied according to what she had done between visits. With Ms Turner’s treatment, she progressed well but would have benefited from more treatment.
[40]Report dated 13 April 2015 (PCB 229-230)
2014
79 Between February and November, Ms Dunston held an “Artist in Residence” position at Victoria University. She received Austudy. The Newstart Allowance restarted in November and continued into the next year. She did other work, all of which was unpaid: February: director of “Exception and the Rule” for Übermensch Theatre; March to May: stage manager and publicity for Bone Marrow Theatre; and November: creative development for Second Skin. In November, she started contributing and sub-editing articles for a website called “Melbourne.Arts.Fashion”. This has continued. She is not paid for her work. Her work as a stage manager with the Bone Marrow Theatre was voluntary, enabling her to control her workload.
80 The defendant copied 156 pages of her entries on “Melbourne.Arts.Fashion” between 17 July 2014 and 16 January 2015. Many of the entries just announce a play or performance with some biographical detail. They are akin to advertising. The majority of the others actually review the work. Each entry has an image. Sometimes they are photographs taken by Ms Dunston.
81 On 19 January, Mr Russell Miller, an orthopaedic surgeon, examined Ms Dunston at the request of her solicitors.[41] His examination revealed diffuse tenderness in the cervical and lumbar spines and right shoulder. There was marked restriction of movement in the lumbar spine but not elsewhere. He saw the reports from four x-rays in 2008. He considered she sustained in the accident, musculo-ligamentous strains and aggravation of degenerative disease in the cervical and lumbar spines. The pain in the right arm and right leg was referred from the cervical spine.
[41]Report dated 20 January 2014 (PCB 334-341)
82 On 11 February, Mr Miller wrote to Ms Dunston’s solicitors.[42] They had given him x-rays of the spine and pelvis and an ultrasound of the right shoulder. He maintained his diagnosis of the injury to the cervical spine. He conceded the possibility of mild adhesive capsulitis in the right shoulder but felt the majority of her symptoms in that shoulder and the arm came from the cervical spine.
[42]Report dated 11 February 2015 (PCB 342-343)
83 On 20 November, x-rays and an ultrasound of her right shoulder showed minor supraspinatus tendinopathy and, perhaps, adhesive capsulitis.[43]
[43]PCB 241
84 On 1 December, Dr Serry saw Ms Dunston again.[44] He previously saw her in 2009. He noted mild physical injuries in the accident and the receipt of physiotherapy, hydrotherapy and clinical Pilates. He said:[45]
“Since my previous assessment some five years ago, your client has unfortunately struggled with ongoing pain from her upper back downwards, bilateral shoulder blade pain and right hip pain. Pain is relatively constant but worse with activity.”
[44]Report dated 1 December 2014 (PCB 263-272)
[45]PCB 264
85 Again, the results of his mental state examination are worth quoting:[46]
[46]PCB 267-268
“Your client was a pleasant and cooperative, casually attired and well-presented woman of solid build and who appeared her stated age. Her speech was of normal rate, volume and fluency.
Your client was a very anxious and fidgety historian. She maintained eye contact and developed good rapport. She demonstrated a normal affective range but with not insignificant underlying depressive themes. There were also residual and quite prominent post-traumatic anxiety features regarding the direct accident circumstances.
There was no abnormality of thought stream or form but thought content revealed an ongoing preoccupation with the accident and with its impact. There were also some negative themes.
There were no psychotic features but your client did describe some detachment-type features in relation to exposure to certain accident reminders and on passing the accident site. In terms of perception, there was no suggestion of any hallucinations but your client described persistent but intermittent flashbacks.
Cognitive assessment revealed your client to be alert and oriented. Mentation was somewhat slow and there was quite prominent residual subjective complaints in relation to concentration and memory. Insight was reasonably well-maintained.”
86 His diagnosis had shifted. He saw the accident exacerbating her pre-existing issues, leaving a partially controlled Chronic Major Depression with anxious features; these features including those of traumatisation consistent with a Post-Traumatic Stress Disorder. The accident had left her with an additional problem: a Somatic Symptom Disorder with pain predominating. The pain was persistent and moderately severe. His prognosis remained guarded.
87 On 23 December, Dr Fisher wrote again to Ms Dunston’s solicitors.[47] By then she had seen Ms Dunston on sixty-one occasions. She noted chronic back and hip pain, particularly after prolonged walking. She still has anxiety and panic attacks. She stressed the need for physical and psychological therapies. She can work only part time because her back pain increases with a full day’s work if her tasks are physical. She has difficulty with memory and concentration. She could not work as a stage manager.
[47]Report dated 23 December 2014 (PCB 160-163)
2015
88 In January, Ms Dunston started as an audio describer with Vision Australia. This is an unpaid position as was the work she did in February for “The Owl & the Pussycat”. During the year, she held a residency at Victoria University. She did research and wrote two plays, theatre reviews and articles. This was unpaid.
89 On 5 January, Associate Professor Stark re-examined Ms Dunston.[48] Neurologically, he identified two main issues: sensory disturbance in the right thigh; and intermittent sensory symptoms in the right hand. Neither was a major interference with her day-to-day activities. He was non-committal about the musculoskeletal pains and the psychological issues.
[48]Report dated 5 January 2015 (PCB 312-314)
90 On 10 January, Ms Dubow wrote to the defendant.[49] She diagnosed Depression and Post-Traumatic Stress Disorder, and said:
“Though her capacity to manage stress has improved over the period of treatment, she remains highly vulnerable to re-experiencing high levels of stress, anxiety and depression during times of uncertainty or increased stress. Therapeutic intervention has proven effective in reducing her distress and improving her functioning during these times by attending to strengthening her coping mechanisms. Further support and intervention, especially during these times, is essential for her to retain her level of functioning and prevent her mood from deteriorating even further … .”
[49]Report dated 10 January 2015 (PCB 192-194)
91 Five days later, Ms Dubow wrote to Ms Dunston’s solicitors. She noted symptoms of depression, anxiety and stress as well as the Post-Traumatic Stress Disorder. Turning to her capacity for work, Ms Dubow said:[50]
“In summary, as I understand it, a Stage Manager is required to function as ‘executive memory’ for the whole production, needing to know who needs to be where at exactly which moment: giving cues to the actors, overseeing sound and lighting, remembering last minute changes, problems (sic) solving in the moment when the unexpected takes place. There is no space for loss of concentration or forgetfulness, as the Stage / Production Manager holds the show together. Since the accident Bronwyn has experienced compromised attention, concentration, memory, multi-tasking and have (sic) great difficulty with problems (sic) solving, especially under stress when she is prone to a panic reaction. It is my impression that her employment history prior to the accident shows that she must have been able to fulfil these tasks until the time of the accident.”
[50]PCB 195-196
92 On 12 February, Dr Robyn Horsley, an occupational physician, examined Ms Dunston at the request of her solicitors.[51] The solicitors provided Dr Horsley with a wide-range of medical and other reports, some of which she discussed. She was aware of the results of x-rays and a CT scan of the cervical spine, thoracic spine, lumbar spine, left hip, skull and head.
[51]Report dated 12 February 2015 (PCB 353-360)
93 Ms Dunston complained of chronic neck and right shoulder pain, increasing on activity. She had numbness in the hands. She has discomfort in her right hip and numbness in the thighs and decreased power in the right leg.
94 Dr Horsley’s examination showed diffuse tenderness throughout the lower cervical spine and into the shoulder girdles, particularly the right girdle, without specific trigger points. There were reasonably good movements of the cervical and lumbar spines, the shoulders and hips. Other tests were largely normal: straight leg raising; slump; walking, and squatting.
95 Owing to Ms Dunston’s diffuse musculo-skeletal symptoms in the cervical spine, the shoulder girdles and right hip and the views of psychiatrists, Dr Horsley diagnosed “a fibromyalgic type picture, with poor sleep pattern and fatigue”. She noted cognitive impairments due to her psychological state and her fatigue being related to it. Dr Horsley believed the musculo-skeletal symptoms do not have a significant impact upon her capacity for work; the impact coming from her psychological condition. The symptoms were likely to persist.
96 On 17 February, Mr Paul Kierce, an orthopaedic surgeon, examined Ms Dunston on behalf of the defendant. She complained of pain in the neck, right shoulder, right hip, low back, each buttock and right groin. On examination, he did not find any significant tenderness in her cervical spine or “real” muscle spasm. Movements of the cervical spine were normal with slight limits on lateral flexion and rotation. There was a good range of movement of the lumbar spine without “definite” muscle spasm. Such restrictions were more due to her size than anything else. There was marked tenderness over both great trochanters but with a good range of movement. There was a good range of movement of the right shoulder with tenderness over the AC joint, bicipital groove and rotator cuff. She was tender over the lateral joint line of the right knee. Everything else was normal.
97 Mr Kierce saw no organic reason for her complaints of pain to the neck, back and right knee. Based on x-rays, there were organic explanations for right hip (gluteal tendinopathy and trochanteric bursitis) and the right shoulder. These were not due to the accident. Since he had been given a collection of psychological and other reports, he suggested she was suffering from a Chronic Pain Syndrome or even a Chronic Pain Disorder, the diagnosis of the latter being outside his expertise. Any soft tissue injuries sustained in the accident would have resolved by the time of his examination.
98 On 2 March, Dr Entwisle saw Ms Dunston again.[52] He had various reports including the recent one of Mr Kierce. She no longer suffered from an Adjustment Disorder with Depressed and Anxious Mood, which was his previous diagnosis. Not that he diagnosed it, she also no longer had a diagnosis of Post Traumatic Stress Disorder. He diagnosed a Pain Disorder, with these comments:[53]
“Ms Dunston’s pain disorder (psychologically mediated pain) needs to be understood through the prism of Ms Dunston’s previous developmental history and early trauma together with a previous history of workplace bullying and traumatisation. Given that Ms Dunston no longer reports symptoms of traumatisation in regard to the accident and her mood symptoms (depression) have resolved Ms Dunston’s presentation now needs to be understood essentially as relating to her pre-existing history rather than the accident when taking into account Dr Paul Kierce’s assessment of this lady.”
[52]Report dated 12 March 2015 (DCB 100-107)
[53]DCB 107
99 Psychiatrically, she could work as a stage manager because she performed at a high level cognitively, wrote plays and made numerous blog entries. The levels of pain had little impact on her daily and work activities. The contribution then of the accident to her psychiatric condition was minimal after noting “the number, nature and content of the internet blogs and website articles enclosed”.[54]
[54]DCB 107. The defendant gave Dr Entwisle three categories of documents, which he described as “Samsara blog downloads”, “The players blog download” and “Articles variously dated from the Melbourne Arts Fashion Website”
100 On 13 April, Sarah Ernst swore an affidavit. She is a long-standing friend of Ms Dunston: their friendship starting many years before the accident. Before the accident, she knew Ms Dunston as organised, confident, a problem-solver who enjoyed her work. They walked a lot together. Since the accident, she is no longer organised, confident or a problem-solver. They do not walk together, certainly not any distance. They travel by tram or other means. Ms Dunston struggles with the steps when leaving a tram. She lacks confidence. She is a nervous passenger in a car. She struggles to lift things or bend. She no longer vacuums or does heavy chores about the house. She no longer dances.
101 On 11 June, a MRI scan of Ms Dunston’s right hip found prominent tearing of the tendon origin and intra-muscular tendon of the semimembranosus and associated bleeding and oedema at the musculotendinous junction. The radiologist commented these injuries are often slow to heal and prone to recurrence[55].
[55]PCB 242
102 In mid-December, Ms Dunston left her accommodation in South Yarra and moved into shared arrangement with two others in Kensington. She clashed with a co-tenant. She left Kensington in early 2017 because the landlord needed the premises for refurbishments.
2016
103 On 25 January, Dr Serry saw Ms Dunston again.[56] As with the previous time, Dr Serry noted widespread areas of pain. The results of the mental state examination were mainly the same as in 2014. His diagnoses and prognosis remained. As to capacity for work, he said:[57]
“… Whilst she may be able to undertake certain studies, it is difficult to imagine that your client would be able to cope with the ordinary stresses and strains of the work environment.”
[56]Report dated 25 January 2016 (PCB 279-289)
[57]PCB 287
104 On 2 February, Ms Dubow wrote again to Ms Dunston’s solicitors.[58] Her report covered the period April 2015 and February 2016 and involved ten attendances. She reiterated her views as to Ms Dunston’s condition, noting her inability to return as a Stage Manager, and adding:[59]
“… her inability to perform this previous role is primarily related to changed cognitive functioning - decreased memory and concentration skills - since post accident.
My impression is based on her consistent account over the period of time of meeting with her. It is my clinical impression that her cognitive skills (memory, concentration and multi tasking) do not change significantly during periods of markedly improved mood; i.e. remains impaired. … .”
[58]Report dated 2 February 2016 (PCB 200-201)
[59]PCB 200
105 On 3 February, Mr Miller re-examined Ms Dunston.[60] Her main complaint was low back pain and discomfort radiating into the buttocks and further down the legs. She had numbness and tingling in the right leg: that leg feels weak and does not move properly. She walks with a limp. It was difficult for her to sit or stand for prolonged periods, bend or lift repeatedly. Her sleep was disturbed significantly. She still had neck pain and discomfort. They radiated into her shoulders and into her right arm. She felt numbness and tingling in this arm and occasionally headaches. However, there had been a significant improvement in these symptoms since she saw him last in January 2014.
[60]Report dated 5 February 2016 (PCB 344-352)
106 Mr Miller maintained his diagnoses of the cervical and lumbar spines. The cervical spine referred pain into the right arm and the lumbar spine into the right leg. He changed his position on the right shoulder. Its symptoms were a mixture of rotator cuff dysfunction and capsulitis and referred pain from the cervical spine.
107 On 12 February, Mr James Drury, a neuropsychologist, saw Ms Dunston at the request of her solicitors.[61] Mr Drury saw Dr Stuart’s 2010 report. He tested her cognitive functions: language processing (superior to very superior on four aspects); visuo-spatial and non-verbal processing (average to high average on three aspects); immediate recall, attention, concentration and numeracy (average to high average). Under the heading of “memory and new learning” he tested auditory-verbal memory (superior) and visual-spatial memory (average). In effect, he found she had not sustained any significant residual brain damage as a result of the accident. He said:[62]
“From a cognitive perspective alone (i.e. with no reference to her pain, fatigue or psychological symptoms), she remains capable of undertaking the type of work she managed pre and post-accident. However, when taking into account her chronic pain, the constant fatigue and residual psychological symptoms, it is unlikely that she could undertake employment on a consistent and reliable basis when dealing with high-level cognitive demands. While these various symptoms persist, it is unlikely that her cognitive efficiency will improve, but by the same token if she is able to gain some improvement in the symptoms it would be reasonable to anticipate a corresponding improvement in aspects of cognitive efficiency. The fact that these symptoms have persisted for over seven years suggested they have become chronic, and potential for further improvement would seem doubtful. … .”
[61]Report dated 12 February 2016 (PCB 361-374).
[62]PCB 372
108 In late February, Ms Dunston started a Master’s degree in Writing for Performance at the Victorian College of the Arts:[63]
“… with a view to in future writing play[s] or scrip[t]s for films or as a drama turg where a writer comes to assist directors and performers with scripts. I believe that if I can move into that sort of work I would avoid the physical strains of my previous work but allow me to continue to work in a field where my name has been known over the years and where I believe I would have opportunities for employment available to me.”
[63]Affidavit of the plaintiff sworn 30 March 2016 at paragraph [17] (PCB 130-137)
109 She attended five days each week for a total of 24 hours. She spent another 20 to 30 hours working on her course. In the first semester, she completed four units, achieving marks between 70 and 74 per cent, which is the Honours 2B level. She completed the degree in November. She told Dr Epstein she found the work exhausting and had more pain. I return to the course when dealing with Dr Entwisle’s last report in April 2017.
110 On 25 February, Dr Serry wrote to Ms Dunston’s solicitors.[64] They had given him fourteen reports and sought his comments. Although briefly commenting on the reports, he focussed on his last report and the 2010 and 2015 reports of Dr Entwisle. To explain his disagreement with Dr Entwisle, Dr Serry set out again Ms Dunston’s symptoms: feeling depressed; low mood; frequently imagined ways of killing herself; restricted interests; low energy; not insignificant stress, anxiety and apprehension; intermittent panic attacks; the accident coming to her mind frequently; flashbacks at a “somewhat reduced intensity”; stopped driving; anxious and fearful passenger; most reluctant to return to the accident site; and very sensitive upon exposure to accident reminders. He concluded:[65]
“… it is clear that your client does have a not insignificant past psychiatric history and in some respects a degree of pre-morbid vulnerability over all.
She was then involved in the subject accident and whilst there appears to have been some fluctuation in intensity of her symptoms post accident, I respectfully disagree at least in part with the conclusions reached by Dr Entwisle.
I do agree that your client does have a pain disorder (somatic symptoms disorder) but I remain of the opinion that she continues to demonstrate symptoms and features of a major depression and residual symptoms and features of a PTSD.”
[64]Report dated 25 February 2016 (PCB 290-293)
[65]PCB 292
111 On 2 March, Ms Dubow wrote again to Ms Dunston’s solicitors.[66] She noted a marked improvement in the symptoms of depression and anxiety, with Ms Dunston reporting then only mild symptoms. These symptoms do increase when she is stressed. She repeated the static position of her cognitive difficulties with the ability to compensate for these losses.
[66]Report dated 2 March 2016 (PCB 202-204)
112 The bulk of Ms Dubow’s report dealt with Dr Entwisle’s report dated 12 February 2016. She disagreed with the view that Ms Dunston’s symptoms were significantly related to the previous history of workplace bullying and traumatisation. She pointed to her employment as a Stage Manager at Polyglot Puppet Theatre and her post-accident inability to return to that role.
113 Ms Dubow also disagreed with his view that Ms Dunston was not unfit to work as a stage manager. Dr Entwisle pointed to her enrolling for a Master’s degree, writing plays and many blogs. She maintained these activities required different cognitive and physical skills: lifting and moving heavy objects; keeping track of many things at a time; and solving a wide variety of problems quickly. Lapses in attention, concentration and slowness in solving problems are important with stage management but not so with creative writing.
114 Starting in June 2015, Dr Richard Young took over from Dr Fisher as Ms Dunston’s doctor. On 29 March, he wrote to her solicitors.[67] His examinations showed generalised pain in several body areas. He did not say where exactly. His note of a visit on 13 March 2015 records chronic pain in the right arm, shoulder and back. He diagnosed a Complex Pain Syndrome, treated by physiotherapy and analgesics. The syndrome represented generalised pain in several body areas and resulted from the accident. Her capacity for work was limited and the future was uncertain.
[67]Report dated 29 March 2016 (PCB 236-238, with the solicitors’ letter at PCB 239-240)
115 On 30 March, Ms Dunston swore her fourth affidavit. She spoke of her experience of pain:[68]
“The chronic pain which I suffer is centred upon my spine. I suffer problems with both my lower back and my upper back and neck. My lower back pain is constant but variable and I suffer referred symptoms into my hips, buttocks and down my right leg where I suffer from numbness and tingling. … As I have said, my lower back is constantly in pain, and my right leg has a feeling of weakness and I walk with a slight limp. I find that prolonged sitting or standing causes me to suffer increased lower back pain. My ability to lift and bend is quite restricted by lower back pain. I suffer from constant variable symptoms of pain in my upper back and neck. This pain radiates down to my shoulders, particularly the right shoulder, and down through my right arm and I suffer from pins and needles in my right hand. My sleep is disturbed by this pain which likewise restricts me in terms of physical activity.”
[68]At paragraph [11] (PCB 134)
116 On 16 June, Dr Peter Blombery examined Ms Dunston at the request of her solicitors.[69] Dr Blombery is a physician, specialising in vascular disease. Her complaints were of pain in the neck, mid back, low back, right hip and right arm. The lower back pain once radiated into both legs but now did so only in the right leg. She felt pins and needles and numbness in her right arm and over her shoulders. Both arms were weak and she often dropped things. She had occasional numbness and pins and needles in her right thigh.
[69]Report dated 16 June 2016 (PCB 375-380)
117 His examination did not reveal tenderness in the neck, right shoulder girdle or right arm. There was a full range of movement of the cervical spine and minor reduction in the right shoulder. There was tenderness over the mid-thoracic and lumbar spines and right hip. The lumbar spine had a full range of movement.
118 As to diagnosis:[70]
“Ms Dunston was involved in a motor vehicle [accident] on 2 December 2008 in which she suffered musculoligamentous strains to the cervical spine and the thoracolumbar spine. This is in the nature of a whiplash type injury which is an organic disorder of pain nerve pathways. In such a disorder, there is sensitisation of path nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. The process is also termed central sensitisation.”
[70]PCB 379
119 Dr Blombery explained the source of pain in the right shoulder and right hip. In each of these areas, he explained her experience of pain as also due to a process of central sensitisation. It is an organic disorder of pain nerve pathways:
“… In such a disorder, there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. … .”
120 Without MRI or CT scans, he could not say whether the accident aggravated existing degenerative changes in the spine by creating symptoms where none existed before.
121 The disabilities in the back, right shoulder and right hip were organic, not psychological. Overall, there would be no significant change for the foreseeable future.
122 On 29 June, Dr Michael Epstein, psychiatrist, saw Ms Dunston at the request of her solicitors.[71] As is usual with Dr Epstein, he took a detailed history and reviewed a large number of reports.
[71]Report dated 4 July 2016 (PCB 381-399)
123 Under the heading “Opinion”, Dr Epstein said:[72]
[72]PCB 395-396
“From a diagnostic point of view she has a chronic Post Traumatic Stress Disorder that has improved but is still present mainly manifested by ongoing anxiety about her safety and recurrent intrusive thoughts about the accident with avoidance of being in a similar situation.
She also has ongoing physical symptoms, mainly of pain, apparently arising from the accident and the combination of the physical and psychological effects of the accident has led on to a chronic Major Depressive Disorder with features of anxiety and some manifestations of a Somatic Symptom Disorder with predominant pain.
She did come from a dysfunctional family and there is a significant history of mental health issues in the family involving her siblings and parents. Prior to the accident she did have some level of depression and anxiety.
The accident has led to a significant reduction in her capacity for work however, mainly due to her complaints of pain and her apparent cognitive difficulties.
… .”
124 In November, she completed the work required for her Master’s degree.
125 During the year, Ms Dunston wrote three one-act plays and a full two-act play.
2017
126 On 23 January, Ms Dunston obtained a job with the National Disability Insurance Scheme as a project administration assistant. She enters data into a computer system for 22.8 hours over five days.
127 On 30 March, Dr Entwisle saw Ms Dunston again.[73] She continued to describe pain in her upper and lower back, legs, right hip and arm and numbness down her arms and legs. She took Panadeine Forte, two to four tablets, two to three times a week. He diagnosed a Pain Disorder. It was chronic. He thought its degree was mild because of the various activities she did: work, rehearsals, theatre reviews, blogs, social media activities and the improvement in her mood due to a change in her anti-depressant medicine.
[73]Report dated 7 April 2017 (DCB 107.1–107.8)
128 In various places in his report, Dr Entwisle described her psychological symptoms: some memory problems but managed with a whiteboard; feelings of melancholia related to a “struggle to affect the world and to be seen”; improved in her mood due to a change in medicine (Venlafaxine, 150 milligrams) in October 2016 and it is generally stable; not tearful; no plans of suicide; interest and enjoyment levels are fine but also feelings of sadness, confusion and, at times, loneliness; anxiety in unfamiliar situations; fears of being late; nervous anger on the road; interrupted sleep; quite energetic; struggles with recall at times but otherwise normal memory.
129 He thought there was little connection between the development of her pain condition and the accident because it is explained by other factors. When commenting on the report of Dr Kierce, he said:[74]
“In response, my assessment of Ms Dunston shows little in the way of posttraumatic-type symptoms. Her symptoms of anxiety relate to attachment issues and insecurities, and it is those symptoms together with her vulnerability and attachment issues from childhood which drive her Pain Disorder.
…
When taken in all, I consider Ms Dunston’s current psychiatric symptoms do not relate to the accident and her continuing experience of pain is explained by factors within herself, consistent with her difficult developmental history, dysfunctional family history, workplace conflict, and ongoing anxiety and depressed mood.”
[74]DCB 107.7 and 107.8
130 Under the heading “Treatment”, Dr Entwisle devoted a paragraph to her experiences undertaking the Master’s degree:[75]
“Ms Dunston described an improvement in mood since ceasing her previous antidepressant (Lexapro) and being prescribed Venlafaxine 150mgs in October 2016 after her difficult and troubling experiences whilst completing her Masters with the VCA through 2016 relating to the physical state of the building which was undergoing renovations with an absence of tables and chairs, and many students often had to sit on the floor. She described the class room atmosphere as a toxic environment. She said she was more experienced and further on in her development than the other students and was seen to be outspoken in her views and having an overwhelming effect on less experienced and younger students in the class, and comments from staff that she was being difficult. Ms Dunston said that whilst the issue of the lack of furniture was no longer relevant from the first semester onwards, she did not feel ‘emotionally safe’ in the class and ‘muted’, resulting in an intervention and meetings with fellow students, Lecturers and the Deputy Dean. ‘I made it a big deal. I kept escalating the issues’. She was seen as being disruptive.”
[75]DCB 107.3
131 On 19 April, Dr Serry saw Ms Dunston for the last time.[76] The areas of pain were the same as in 2016. The results of the mental state examination were mainly the same: struggles emotionally with fluctuations; mood is generally down; she enjoys herself occasionally; concentration and memory are erratic but can concentrate if she has to; motivation had improved and interests maintained; energy level is low; sleep is broken and overall, reduced; appetite fluctuates; confidence and self-esteem are low; intermittent suicidal thoughts but less so now because of her new dwelling; anxious from time to time; panic attacks, once or twice a week and lasting up to an hour; jumpy and easily startled; more irritable and short tempered; thinks about the accident, more its consequences than the accident itself; flashbacks usually responding to triggers; will not drive; is a nervous, hypervigilant passenger; even anxious in a bus; avoids the accident site.
[76]Report dated 19 April 2017 (PCB 399A-399J)
132 His diagnoses and prognosis were the same as before, with the need for continued psychological treatment and psychotropic medication. In contrast with Dr Entwisle, Dr Serry recorded nothing about her 2016 experiences with her Master’s degree except that she completed it.
133 Two days later, Dr Serry wrote to Ms Dunston’s solicitors.[77] They had given him a copy of Dr Entwisle’s recent report for comment. As he did previously, he repeated her symptoms as justifying his position. He agreed with the diagnosis of a Pain or Somatic Symptom Disorder but disagreed over the other diagnosis and, implicitly, its cause. He maintained she “had residual symptoms and features of Chronic Major Depression with anxious features and with features of panic and traumatisation, consistent with a partially resolved PTSD.”[78]
[77]Report dated 21 April 2017 (PCB 399K-399L)
[78]PCB 399L
134 On 19 April, Ms Dunston swore her fifth and last affidavit. She repeated her complaints of pain, saying:[79]
“The physical symptoms from which I suffer are constantly with me. I am never free of pain and the pain increases with activity. My sleep is disturbed by pain on an ongoing basis. My ability to move freely is limited. Sitting for extended periods leads to increasing pain particularly in my lower back and so too does standing. … .”
[79]At paragraph [16] (PCB 148-149)
135 On 24 April, Ms Dubow wrote to Ms Dunston’s solicitors for the last time.[80] She noted between 24 June 2010 and January 2017, she had seen Ms Dunston on eight-six occasions for treatment. Between 3 February 2016 and 31 March 2017, she saw her seventeen times. The frequency increased compared to 2014 and 2015 because of the requirements of her studies for a Master’s degree:[81]
“... she experienced significantly increased stress, increased anxiety and deterioration in mood. She had difficulties with negotiating the academic and practical demands of the course. Her cognitive difficulties with multi tasking, attention, concentration and memory were evident and adversely affected her performance … .”
[80]Report dated 24 April 2017 (PCB 204A-204D)
[81]PCB 204A
136 Overall:[82]
“Over the almost 7 years of psychological treatment, [Ms Dunston’s] presentation has been consistent in terms of her reported difficulties. She continues to present with ongoing reports of impaired memory, difficulties with concentration, multi tasking and problem solving as these present in her everyday life. She presents with fluctuating levels of anxiety and depression. She reports a difference in cognitive capacity pre and post accident.
… Her levels of distress, anxiety and depression fluctuated over time, related to stress.”
[82]PCB 204B
137 Faced with new situations requiring solutions, she has acute distress, panics and cannot think clearly. Anxiety is always present. Even when it is mild, she has difficulty in problem solving, memory and multi-tasking.
138 Ms Dunston studied for the Master’s degree because she wants financial independence. She completed it despite “great stress and significant depression”.
139 Ms Dunston engages well with Ms Dubow. She has made good progress but needs ongoing psychological help, especially when stressed. She is at her best now. She does not have significant symptoms of anxiety or depression. Her capacity for work will not change. Her present job involves 22.8 hours over five days: she cannot concentrate for a full day. She cannot return to stage managing because her ability to remember, multi-task and solve problems has been reduced by the accident. Nor did she expect her capacity to work to improve. Without psychological treatment, her mood and anxiety will worsen.
140 Ms Dubow ended her report more or less as she started it:[83]
“… It is my understanding from meeting with her over a period of almost 7 years, that there has been a definite change in her cognitive functioning as manifesting in executing everyday tasks requiring problem solving, memory and multi tasking, since the accident in 2008. … .”
[83]PCB 204D
141 Ms Dunston is still treated by a general practitioner. She now sees Dr Obeyesekere at a clinic in Kensington. She sees Ms Dubow monthly. She takes several medicines. Apart from those concerning her asthma, she takes Venlafaxine, Valium, Temazepam and Panadeine Forte. The last when her pain is severe because it clashes with her other medicines.
Legal considerations
142 To give leave, Ms Dunston must prove:
(a)she suffered an “injury” as a result of a “transport accident”. There was a transport accident and it occurred in the way Ms Dunston described. Further, she was injured in the accident;
(b)the “injury” is a “serious injury” as defined by s 93(17) of the Act. She relies on paragraphs (a) and (c) – serious long-term impairment or loss of a body function being the spine; and severe long-term mental or severe long-term behavioural disturbance or disorder respectively;
(c)in paragraph (a), what is “serious” is set out in Humphries & Anor v Poljak:[84]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question is to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
(d)in paragraph (c), the word “severe” is used in the definition as a stronger word than “serious”;[85]
(e)Section 93(17) divides injuries with physical consequences from those with mental consequences. The former comes within paragraph (a), the latter paragraph(c). Under (a), seriousness can be partly measured by a mental response to a physical impairment. However (a) will not recognise that the mental disorder can itself constitute or be the producer of the impairment of a body function[86];
(f)there are elements of Ms Dunston’s “injury” which are an aggravation of her pre-existing injury stemming from the 2002 events at the Arts Centre. If I accept that view, then I must avoid taking into account the cumulative effect of the pre-existing injury and the aggravation. I must look at the aggravation only.[87]
[84][1992] 2 VR 129 at 140
[85]Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA.
[86]Richards & Anor v Wylie [2000] VSCA 50 at paragraph [16] and paragraph [17] per Winneke P
[87]Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [27]. See also Petkovski v Galletti [1994] 1 VR 436, especially at 443-444
Discussion
Credit
143 The defendant attacked Ms Dunston’s credibility.
144 Its counsel asked about her full-time work as a stage manager with Iljiberri. Initially, she said by the time her contract ended she was on a walking stick full time and had to go into “recovery”.[88] On the second day of the hearing, counsel returned to these answers. He queried what she meant by “recovery”, pointing out she went to London not long afterwards. She defined “recovery” by saying: “I don’t call going on the flight the recovery, I call the week where I was bedridden prior to leaving, recovery”.[89] Counsel came back with reading her doctor’s entry for her attendance on 12 October 2010 where there is no mention of being bed-ridden for a week. What the doctor prescribed concerned precautionary medicines but not to avoid pain. She queried the completeness of the notes of doctors.
[88]Transcript at page 50
[89]Transcript at page 101
145 In October 2010, Ms Dunston’s work with Ilbijerri overlapped with her preparation for London and being in London. Ilbijerri ended on 29 October. The London trip was between 19 and 24 October and the preparation for the trip between 13 and 15 October. There was no further work that year. From 25 October until the following May she received a Newstart Allowance.
146 In February 2011, Ms Dubow wrote:[90]
“Her last contract, as Stage and Production Manager ended in December 2010. She completed this contract with great difficulty and felt that she was unreliable in her duties. (e.g. ‘I directed the show differently each time’; could not remember previous discussions with colleagues regarding specific issues; found it very difficult to make split second complex decisions during a performance). Ms Dunston expressed that she can no longer work effectively in a role as Stage and Production Manager.”
[90]Report dated 20 February 2011 (PCB 187)
147 December is incorrect. Literally, the last contract is London but Ms Dunston is referring to Ilbijerri. There is no mention of being bedridden. The failure to tell Dr Fisher or Ms Dubow of that matter suggests Ms Dunston exaggerated her disability. In light of what she was telling Dr Fisher in September, it may be she was bed-ridden but not for a week in the period shortly prior to leaving for London.
148 When asked about her failure to mention her “weak and sore” legs in her first affidavit, Ms Dunston said:[91]
“I don’t understand the legal world, I assume anything that is in the medical reports is automatically part of the history of the case. So when I did these affidavits I did not know or understand that I would have to be doing this for a legal case. I didn’t even think we would be here eight and a half years later.”
[91]See Transcript at page 67
149 The defendant submits this reason “I did not know or understand that I would have to be doing this for a legal case” cannot be true, for Ms Dunston is an intelligent person. She must know the purpose of an affidavit. Her answer has two parts: First, she assumed the contents of her medical reports would be part of the case. In this, she is correct. The second part is ambiguous. The first affidavit was sworn three years before the Originating Motion was filed; I can only speculate why it was prepared so early. In the context, her use of the words “legal case” may have the meant the hearing before me rather than the proceeding, which is the sense understood by the defendant’s counsel. This answer is an unsound basis to doubt her truthfulness.
150 During cross-examination, Ms Dunston gave these answers:[92]
[92]Transcript at page 104
A:“… Now, also, the bit that you read out actually just makes my point, that with the physiotherapy I was improving and in fact the reason we’re really here is because the TAC decided to stop my physiotherapy.
Q:That’s why we’re here, is it?---
A:Well, it’s what began this.
Q:Are you serious again, that you think we’re here because TAC stopped your physiotherapy?---
A:From my perspective that is part of the equation.
Q:We’re not here because you’re looking for a significant pay-out?---
A:No.
Q:No, okay?---
A:In fact, I have been told there is no significant pay-out.
Q:Really?---
A:Yes, from my very, very first meeting with my – I mean, I don’t know what you call significant.”
151 Although she is careless, again her answers are an unsound basis to doubt her credibility. I understood her reference to the TAC’s action as the triggering event to her seeing a solicitor. In my experience, that happens. Her denial of a significant payout and then asking what he meant by “significant” means she speaks without thinking.
152 Ms Dunston does not raise her work with Ilbijerri in her affidavits after the first. Those affidavits were sworn in 2015, 2016 and 2017. Looking at their contents, it would be surprising if there was a reference to that work in them.
153 It is incorrect to say Ms Dunston did not tell her practitioners about her work with Ilbijerri. As I said above, she told Ms Dubow, for it is referred to in her report dated 20 February 2011.
154 Ms Dunston said she cannot go to dinner with friends because she could not walk that far. When queried, she said they go to bars afterwards. The need for qualification is no reason to doubt her credit. She gave an incomplete answer.
155 When asked whether she wanted to be recognised as an artist, Ms Dunston said she was already recognised as one. She then referred to artist’s passes dating back to about 2004 as the reason for saying she was recognised as an artist before the accident.
156 Ms Dunston denied interest in the results of Mr Drury’s neuropsychological testing. There were several questions about this, culminating in:[93]
Q:“And then he puts out a report and you’re telling me that you with your intelligence didn’t even look at his report?---
A:Yes, because I didn’t go to my psychologist and say oh, I’ve got an organic brain injury. My psychologist made the recommendation on her own without – I didn’t know she was doing it, I did not suggest it, I did not recommend it …I haven’t seen any medical reports if that has anything to do with this case because they are not about me, they are not for me. And I did not instigate any of them. I don’t care what other people say about me, all I care about is my lived experience … .”
[93]Transcript at pages 88-89
157 Shortly afterwards, she admitted knowing the contents of reports prepared by her doctor and sent to the defendant. Among other things, these reports mentioned the injury to her hip. She explained the apparent conflict with the passage just quoted:
Q:“So you did read the reports?---
A:Yes, I did see the monthly medical reports. I’m talking about the reports that have been commissioned by the specialists for this case. I apologise, I omitted that, it can’t be real.”
158 Overall, an instance of exaggeration and instances of carelessness in answering questions is insufficient to doubt her evidence generally. It makes me cautious. As will become clear from my latter findings, Ms Dunston suffers from very significant psychological issues. When looking at her answers I must caution myself that the answers may be affected by the underlining psychological issues.
Pre and post accident
159 I am fortunate to have a good deal of information about the treatment of Ms Dunston before and after the accident. There were two persons who treated Ms Dunston for her psychological problems before and after the accident: the psychiatrist, Dr Lewis; and the psychologist, Dr Lucas.
160 Dr Lewis first saw her in December 2002 about her problems at the Arts Centre. He saw her after the accident in December 2008. His last report before the accident was written in August 2005. His diagnosis had moved to post-traumatic Neurosis to a moderate degree. Following the accident, and after six visits, his diagnosis was a recurrence of a Mild Depression due to the accident with 100 milligrams of Dothep daily sufficient to stabilise her. Taking this high dose of an anti-depressant, there was little chance of deterioration.
161 According to the psychologist, Dr Lucas, Ms Dunston’s experiences at VCA left her with a recognised psychiatric disorder: Post-Traumatic Stress Disorder. Dr Lucas started seeing Ms Dunston in February 2008, almost nine months short of the accident. By the time of the accident, Dr Lucas says the symptoms of this disorder were mild. She was in an excellent position to say how the accident affected Ms Dunston psychologically. It did two things. It aggravated some existing mood symptoms and created other symptoms. With the former, there was emotional numbing. Ms Dunston felt a greater need to do something dangerous to experience an emotion. She did not carry out her urges. Some time in 2009, this urge disappeared. She thought about suicide. So much so that Dr Lucas referred her Dr Lewis, who increased her anti-depressant medicine. Her mood problems left quickly. Her anger and irritability declined only slightly. In the latter, there were recurrent and intrusive thoughts of the accident. By October 2009, these had gone. There was avoidance of the scene of the accident and fear of traffic: by October 2009, these had receded. However, Ms Dunston had cognitive difficulties: remembering names; doing arithmetic calculations; following sequenced actions; forgetfulness; making decisions, and organising at home. These remained.
162 There were several others who treated Ms Dunston before the accident. Ms Field last saw her one or two years before the accident. Her last report was written in August 2005 where she diagnosed Severe Depression and a Post-Traumatic Stress Disorder and recommended another twelve months of counselling. Ms Field was more optimistic if Ms Dunston could be employed where she was not bullied and was supported by management once difficulties arise.
163 A feature of this case is the frequent underestimation by psychiatrists, psychologists and doctors of the time it will take to resolve Ms Dunston’s psychological problems. For example, despite early optimism, by September 2005, Dr Feiglin noted three years of psychiatric treatment with “little obvious improvement”. He foresaw several more years, adding that the damage will affect her forever. This underestimation was true after the issues at the Arts Centre, it is true now. By April 2017, Ms Dunston was experiencing significant depression, anxiety and panic. She remained frustrated, irritable and traumatised by the circumstances of the accident. Dr Serry diagnosed Major Depression, which was chronic. He diagnosed a Post-Traumatic Stress Disorder with panic and traumatisation to the forefront, which was partially resolved, and a Somatic Symptom Disorder.
164 Also by April 2017, Ms Dubow found that stress controls the levels of Ms Dunston’s distress, anxiety and depression. The stress fluctuates, as do the others. Her stress changes because the accident has struck at her cognitive functions. Despite the results of neuropsychological testing, Ms Dubow concludes there is impairment of memory, concentration, multi-tasking and problem solving. These are not at a high level but affect her everyday life. I accept these findings.
165 At a work level, Ms Dunston believes she cannot do professional stage management. The defendant says not.
166 Ms Dunston described the work of a stage manager in a blog entitled “A Day In The Life Of A Stage Manager” and dated 18 December 2014.[94] The day starts at 6.00am and finishes at 6.30pm. However, there may be work to do after dinner from 7.30pm. Although there are morning and afternoon tea breaks and a lunch break, the stage manager apparently works through each of them: it is a non-stop job. Even though describing the first day of a show called “Crossing Lives”, performed at the Merlin Theatre in 2007, she agreed it described the “kind of things for every job as a stage manager”.[95]
[94]Amended Defendant’s Court Book, appendix 1 at pages 112-113
[95]Transcript at page 51
167 The defendant pointed to Ms Dunston’s employment as a production, stage and tour manager with Iljiberri Theatre Company. Her contract ran between 28 June and 29 October 2010. It was full time, 40 hours each week. She completed the contract. Despite the contract finishing on 29 October 2010, she prepared for and travelled with Moriarty’s Project Inc. between 13 and 24 October 2010. The work “Monumental” was performed in London.
168 When questioned, Ms Dunston said she spent a week bed-ridden after the end of the contract. Earlier, I quoted from Dr Fisher’s notes of her attendance on 12 October 2010. There is no mention of being bed-ridden for a week. It is unlikely she could not have been bed-ridden after the attendance as she was involved in preparing for and then travelling on tour. However, there is Dr Fisher’s entry for 16 September 2010 where Ms Dunston says she was using a walking stick after the first of four weeks of a regional tour and was always tired despite it being a “small show”. A week in bed is an exaggeration. More likely, she struggled and needed frequent rest.
169 Between 27 September and 6 December 2010, she saw Dr Tofler four times. In his report written in March 2011, he does not mention her current work, let alone the Iljiberri work. He does say her mental state improved between the first visit in September and the last in December.
170 In her February 2011 report, Ms Dubow records Ms Dunston’s view of her performance with Iljiberri and her inability to work effectively as a stage manager again. Despite this view, she returned as a stage manager between 18 and 24 May 2013 for performances of “Monumental” at the Dublin Dance Festival. But “Monumental” is a consistent theme in her career. Presumably, she knows the work well. It is easier to deal with a known work than a new one.
171 Between March and May 2014, Ms Dunston worked as a stage manager for the Bone Marrow Theatre. This was voluntary work where she could control her workload. What she meant by controlling her workload was not explained. She may have done some things and not others. Whether there was a “lot involved” is unknown. In her report to the defendant dated 10 January 2015, Ms Dubow says her psychological treatment focusses on four things, including finding and maintaining employment. Referring to 2014, she mentions only the honorary position of “Artist in Residence” at Victoria University, adding Ms Dunston had been unable to return to a position as a stage manager. There is no mention of her work with the Bone Marrow Theatre or the other voluntary work for the Übermensch Theatre or for “Second Skin”. In her report five days later to her solicitors, Ms Dubow sets out the essential functions of a stage manager, pointing out Ms Dunston’s deficiencies.
172 I accept Ms Dunston’s work with the Ilbijerri Theatre Group showed her that she could not continue as a stage manager professionally. I do not see her work there as evidence of the incorrectness of the view, rather it provided the evidence. Afterwards, she did short stints in stage management, mostly unpaid. With that realisation, it is easy to accept Ms Dubow’s assessment. It is based on long experience treating Ms Dunston. She cannot return to stage management in a paid capacity.
What is Ms Dunston’s capacity for work?
173 Between February and November 2016, Ms Dunston undertook and completed a Master’s degree by coursework. She could not cope with aspects of the building. There were no desks and chairs. She could not sit on the floor for three hours. She could not manage the stairs. She did not get on with some of her fellow students and teachers. Nevertheless, she completed the degree. It was a lot of work. She told Dr Epstein of 24 hours of contact and 20 to 30 hours of other work each week. In fact, 2016 was a difficult year for Ms Dunston. She described it as “a year of hell”.[96]
[96]Transcript at page 56
174 In her last report, Ms Dubow spoke of Ms Dunston’s determination to work and be financially and socially independent. She saw a clever woman seeking to achieve in a family which achieved little. She saw studying for the Master’s degree as central to those aims after the realisation that paid stage management was no longer possible. To date, her degree has not opened up opportunities but perhaps it will.
175 Based on extracts, Ms Dunston is an active blogger. She is not paid. She does not think it work. It is an interest and gives her a sense that someone will hear her. She attends rehearsals of three hours each day for a play she is involved with. She attends the theatre two or three times each week and writes reviews on her blog. She is active on social media.
176 Ms Dunston finds her current job satisfactory. Her current job gives her an ability to live alone and not in shared accommodation. It does not stress her. It is part time (4.56 hours) for she cannot work a full day. She has a sympathetic employer who makes allowances for her. Her job is undemanding. She says there is a lot of data entry work “which is somewhat tedious but at least I have some work now”.[97] “Somewhat tedious” means her job lacks stress where stress increases her anxiety and depression.
[97]Affidavit sworn 19 April 2017 at paragraph [4] (PCB 146)
177 Ms Dunston’s recent degree, skills and intelligence may enable her to write plays of scripts for films or as a dramaturge. This will be more satisfactory for her. Whether it gives her a livelihood remains to be seen. What seems clear is she cannot cope with stress. She must seek employment where there is little or none. Her position now is the best it has been for some time. She relies on medicine, counselling and a low stress environment, at home and at work. She remains vulnerable.
178 The defendant denies Ms Dunston’s assertion she has lost the ability to do full-time work. It says she never worked full time as a stage manager before the accident. The defendant denies she worked full time at the Polyglot Puppet Theatre. Part of her court book consists of copies of her invoices to various employers. An invoice, dated 15 December 2008, seeks payment for work done on 26, 27 and 28 November and 1 December 2008. It says she worked between one and fours on each of those days.[98] At least, for those days, it is not full-time work.
[98]PCB 60
179 From her records, I have set out Ms Dunston’s jobs in 2006, 2007 and 2008. She had many jobs in those years. Their frequency and duration are usual for persons working in that area of the economy. They tell me nothing about her capacity to work a “full day”.
180 I have dealt with the psychological and cognitive issues. I now turn to the physical.
181 When Ms Dunston saw Dr Fisher seven days after the accident, she complained of back pain as well as headaches, nausea, sore buttocks, a weak left leg and pain in the cervical spine on certain movements. Since that visit, her painful areas have changed.
182 In April 2013, her painful areas were to the neck, upper and lower back. These were described as long-standing. On 13 March 2015, Dr Young records chronic pain in right arm, shoulder and back. On 16 June 2016, Dr Blombery recorded complaints of pain in five areas: neck; mid back; low back; right hip; right arm; and right leg. On 5 February 2016, she complained to Mr Miller of low back pain with discomfort radiating into the buttocks and into the right leg. Less significant was neck pain and discomfort radiating into the shoulders and right arm. On 30 March 2017, she told Dr Entwisle of pain in the upper and lower back, legs, right hip and right arm and numbness down her arms and legs.
183 In December 2014, Dr Serry was the first psychiatrist to diagnose a Somatic Symptom Disorder with pain predominating. It was persistent and of moderate severity. He maintained this diagnosis after reading reports from Mr Miller and Mr Kierce. In 2016, the physician, Dr Blombery diagnosed changes to the pain nerve pathways. These were physical changes. In the same year, Dr Epstein, psychiatrist, detected some manifestations of Somatic Symptom Disorder with predominant pain. He did not diagnose it. In 2017, Dr Entwisle, diagnosed a Pain Disorder. This is the Somatic Symptom Disorder by another name.
184 Despite the seriousness of the accident, Ms Dunston sustained limited injuries. She stayed at the hospital for a few hours only. In 2011, Dr Kenna was suggesting a non-organic explanation of her physical symptoms. Mr Miller examined her twice over three years. He maintained his diagnoses about the cervical and lumbar spines. He noted diffuse tenderness for both areas of the spine. Dr Horsley noted diffuse musculo-skeletal symptoms in the neck, shoulder girdles and right hip area. She gave the vague diagnosis of “fibromyalgic picture”. Mr Kierce saw no organic basis for her complaints. Dr Serry and Dr Entwisle identify a Somatic Symptom Disorder. Dr Serry and Dr Entwisle differ on the severity of the disorder and its cause. Dr Epstein spoke of the existence of features of this disorder without diagnosing it.
185 The effects of the physical injuries suffered by Ms Dunston are now minor. There are organic bases for her complaints about her right shoulder and right hip but neither is likely to be caused by the accident. The views of the medico-legal specialists had reached a Somatic Symptom Disorder or were heading in that direction. Even Mr Miller was thinking about the development of a Chronic Pain Syndrome in January 2014. Dr Horsley’s diagnosis is really a shrugging of her shoulders from an organic perspective. In March 2016, Dr Young was speaking of a “Complex Pain Syndrome” and nothing else. Ms Dunston’s experience of pain or discomfort is mostly due to the Somatic Symptom Disorder. She experiences widespread pain and discomfort in the upper and low back, hips, buttocks, right leg, neck, right shoulder with numbness in the arms and legs. She takes Panadeine Forte. The pain and discomfort, perceived and real, affect her ability to function and adds to the restrictions on her hours of work. They restrict bending and lifting. She does not move freely. Her sleep is disturbed. They restrict sitting or standing for long periods. They do not stop her doing minor domestic chores, now that she lives alone. This experience of pain and discomfort is significant.
186 In his April 2017 report, Dr Entwisle said the cause of the disorder “though experienced by her as resulting from the accident, is explained by other factors within herself”. He had said as much in March 2015. He was influenced by Mr Kierce’s opinion. In his January 2016 report, Dr Serry saw the accident causing an exacerbation of existing symptoms resulting in three recognised disorders, including the Somatic Symptom Disorder. Their difference is Dr Entwisle saw no disorder present other than the Pain Disorder, while Dr Serry saw three. The weight of psychological evidence favours the existence of several disorders. Even, the general practitioner, Richard Young, spoke of a Complex Pain Syndrome in March 2016. Ms Dunston believes the pain she suffers came from the accident. She has the same view in relation to her Pain Disorder.[99]
[99]Affidavit sworn 30 March 2016 at paragraph [10] (PCB 134)
187 I prefer Dr Serry’s opinion: there is more than one disorder in existence. It gains weight from the views of Ms Dubow. If anyone can voice an opinion about her, she can, after seven years of regular treatment. Dr Serry first diagnosed the disorder. His description of it shows he is using the Diagnostic and Statistical Manual of Disorders. He maintains the diagnosis, knowing there was once, and possibly still is, a partial organic basis. He has consistently said it is persistent and of moderate severity. I accept the Somatic Symptom Disorder is caused by the accident and is not better explained by “factors within herself”.
With regard to paragraph (a), what does this mean?
188 First, there is little of a physical or organic nature in Ms Dunston’s complaints of pain and discomfort. Her claim under paragraph (a) cannot succeed: she does not have a serious long-term impairment or loss of a body function, being the spine.
189 Second, these complaints of pain and discomfort are largely somatic. They have reached the stage of a recognised disorder. They are persistent and of moderate severity.
190 Third, the combination of these psychological issues results in Ms Dunston experiencing widespread pain and discomfort, which limit her activities to an extent. She remains vulnerable to anxiety and depression moderated through stress. She suffers from Chronic Major Depression and a Post-Traumatic Stress Disorder, partially resolved. The symptoms of which have been fully described by Dr Serry and Ms Dubow. Her cognitive functions have been impaired. These are described by Ms Dubow and Mr Drury (in the context of chronic pain, constant fatigue and residual psychological symptoms). Bearing in mind, the meaning of the word “severe” in this context and the extent to which some of these symptoms represent an aggravation of symptoms existing immediately before the accident, I am satisfied Ms Dunston has a severe long-term mental or severe long-term behavioural disturbance or disorder. She succeeds under paragraph (c). In speaking of aggravation, I rely on the assessment of Dr Lucas, who started treating Ms Dunston in early 2008. I prefer her assessment to that of Dr Lewis even though his treatment started much earlier. There is something in Ms Dunston’s loss of confidence in him. I would not go as far as say it is “cruelty” but she perceived a lack of sympathy with her condition.
191 I should comment on two other matters. First, Ms Dunston has thought about suicide since the accident. She did so before the accident. She did so in 2016. The existence of such thoughts after the accident adds nothing to the resolution of this case.
192 Second, in 2011, Ms Dunston was prescribed the anti-depressant, Lexapro 20 milligrams. In 2012, the dose was doubled due to conflict with a co-tenant.[100] She had had a twenty-minute panic attack and obtained a personal safety intervention order. In October 2016, the medicine was changed to another anti-depressant, Venlafaxine 150 milligrams. Dr Young made the change. He did so because of the adjournment of the case and the difficulties of her degree course. Dr Entwisle linked the change to her “difficult and troubling experiences” while undertaking her Master’s degree. She had had suicidal thoughts at the time. The change to Venlafaxine is due to her experience of stress. Her vulnerability stems from the accident. Indirectly, the increase in Lexapro and the change to Venlafaxine are due to the effects of the accident.
[100]At times, there are references to Prozac. Lexapro and Prozac are not the same drug although both are anti-depressants.
Conclusion
193 Ms Dunston succeeds in her claim under paragraph (c). She fails under paragraph (a).
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