Elias v TAC
[2012] VCC 342
•16 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-03745
| MOUNTAHA ELIAS | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 December 2011 | |
DATE OF JUDGMENT: | 16 February 2012 | |
CASE MAY BE CITED AS: | Elias v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 342 | |
REASONS FOR JUDGMENT
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Catchwords: serious injury application pursuant to s.93(4)(d) of the Transport Accident Act 1986 (Vic)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.P. Gorton QC Mr T.J. Ryan | Nowicki Carbone |
| For the Defendant | Mr D.E. Curtain QC Ms S. Manova | Wisewould Mahony Lawyers |
HIS HONOUR:
1 In this claim, Case Reference No. CI-10-03745, the plaintiff Mountaha Elias applied for a certification as to serious injury to sue for damages from the relevant insurer on the 3 February 2010. Such application was refused, see Exhibit N.
2 On 25 August 2010, an Originating Motion was issued seeking leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages.
3 Mr Gorton of Her Majesty's counsel, with Mr Ryan, appeared for the plaintiff and Mr Curtain of Her Majesty's counsel, with Ms Manova, appeared for the defendant.
4 In opening on 7 December 2011 Mr Gorton said the injury claimed to have occurred in the motor vehicle accident of 7 June 2008 was to the right shoulder and right arm with bodily function thereof impaired by way of injury to the rotator cuff and the cervical spine.
5 The above forms the basis for a claim for a serious injury as defined firstly in part (a) of the definition in s.93(17) being a serious long term impairment of a bodily function and secondly a claim under part (c) of the definition of serious injury being a severe long-term mental or severe behavioural disturbance or disorder.
6 The plaintiff seeks leave to issue proceedings for both pain and suffering and pecuniary loss damages.
7 As to the law relevant to such an application the Court is now assisted by sub-s.(6) of s.93 of the Act and of course the decision of the Appeal Division of the Supreme Court, as it then was, in Humphreys v Poljak [1992] 2 VR129, 140 and by Cropp v TAC & Anor [1998] 3 VR 357.
8 It is also important in an application where you have both a part (a) and part (c) application that Richards & Anor v Wylie (2000) 1 VR 79, 86- 88 is taken into account, where the Court talks of the textual division and the task for a Judge in such applications.
9 In this case of course involving the part (c) application the relevant law is set out by the Court of Appeal in Mobilio v Balliotis & Ors [1998] 3 VR 883, 836 & 846 where Brooking AJ said, without suggesting the use of any particular adjective to mark the distinction, “I would say that 'severe' is used in the definition as a stronger word than 'serious'”.
10 Also relevant of course to part (c) applications, albeit that the majority were incorrect as to the appropriate test, is Turner v Love & TAC (1995) 21 MVR 314, the principles set out therein are still relevant in assessing such injuries. In particular as to the need for a Court to look at the consequences of a psychiatric injury, insofar as they include the need for treatment, when such occurred, its frequency, any past and future potential side-effect s and the principal long-term consequences.
11 In final address Mr Curtain submitted that the part (c) injury claim fell short of the Mobilio test and further that the claim as to part (a) insofar as the neck and shoulder was concerned also fell short of the narrative test.
12 In Mr Gorton's address he submitted the evidence disclosed an organic injury to the neck and right shoulder which has caused loss of function to the right arm to the extent that such consequences suffered were not only permanent but were of such a degree as to satisfy the narrative test. He also submitted that the part (c) injury suffered as a result of this motor vehicle accident also satisfied the test in Mobilio.
13 As to the shoulder injury, the plaintiff relies on material set out in her affidavit sworn May 2009 (Exhibit B1) at p.8 of the plaintiff's Court book, and her more recent affidavit sworn on 19 July 2011 (Exhibit B2) at p.16 of the plaintiff's Court book.
14 In Exhibit B1 the injury is described, at [9], as occurring on 7 June 2008 following a rear end motor vehicle collision in which the plaintiff says that she hit her shoulder. She was thereafter taken by her son to the Williamstown Hospital two days later on 9 June 2008. I will come back to the reports as to that.
15 As to the impact of such injury and her pain and suffering, such are set out in particular, at pp.13 and 14 of the plaintiff's affidavit, Exhibit B1, and essentially as to her right shoulder the complaint is severe and continued pain.
16 Ms Elias talks, at [41], of restriction of movement to her shoulder making it difficult for her to sleep, being woken up frequently at night, being affected by lack of sleep. She submits that since the accident she has experienced pain and restriction of movement in her cervical spine. She goes on to talk to other parts of her body. She says, at [49]:
"The pain and restriction of movement in my shoulder back and wrist have also restricted my ability to play any music on the piano."
17 Ms Elias’ injuries have not improved and she was feeling anxious about such injuries. She talks about her lack of earnings and inability to work, at [53] through to [55]. She submits that she was expecting to work in Australia, albeit that she had never done so, and was taking language lessons in order to be able to do so.
18 In the further affidavit, Exhibit B2, in particular at pp.19 and 20, Ms Elias provided the Court with an up to date as to her symptomatology. She talks of the ongoing symptoms which limit her moving her right shoulder in regard to all movements, at [13]. She says she experiences severe right sided axial neck and right shoulder pain symptoms, and talks of the difficulties in carrying out normal everyday tasks and the aggravation to her shoulder from such, at [16] and [17].
19 Interestingly, given her evidence in cross-examination, she identifies the types of tablets that she takes for pain relief, at [21], and she talks of the permanence of the symptomatology and the development of anxiety and depression because of such persistence, at [22].
20 Ms Elias said, "I have been unable to engage in all range of social, recreational and domestic activities" and she talks of experiencing symptoms of anxiety, particularly when travelling by car, poor sleep patterns, nightmares and high levels of fatigue.
21 As I said, she was as a result of the accident, ultimately taken by her son to the Williamstown Hospital. Exhibit X is a report from that hospital. Albeit that there was no reference to specific shoulder pain, she was referred for neck pain.
22 Ms Elias underwent a series of x-rays. The right clavicle and the right wrist were x-rayed. There was no bony injury found. There was found on that plain x-ray calcification present in her shoulder, indicating tendonitis.
23 The next day, that is 10 June 2008, she went to Dr Hamdan. Dr Handam's letter is Exhibit G, at p.56 of the plaintiff's Court book.
24 Ms Elias was complaining to Dr Hamdan of back and right shoulder pain. She was prescribed conservative treatment. She returned again on 13 June 2008 and had complained of continuing pain.
25 A further x-ray was ordered, which is found at Exhibit F at p.41 of the plaintiff's Court book. Again there is no bony injury shown, but calcification is demonstrated at the point of the rotator cuff.
26 On reference from the general practitioner Ms Elias saw a physiotherapist and underwent a series of soft tissue massages. A CAT Scan was organised by the physiotherapist on 1 August 2008, see Exhibit F at p.43 of the plaintiff's Court book. It showed calcific tendonitis at the point of the insertion of the supraspinatus tendon in the right shoulder.
27 Ms Elias then changed her GP to a Dr Al-Mulla. There is no report from the doctor but there is a letter from him (Exhibit L). The initial complaint to the doctor was of right shoulder and neck pain, and tenderness was noted on examination and she was referred off for a CAT scan on 19 September, which is Exhibit F(g), which reported multi-level degenerative disc disease.
28 An ultra scan ordered by Dr Al-Mulla reported a partial tear of the supraspinatus tendon and suggested tendonopathy of the tendon (Exhibit F(h). It is interesting that in the doctor's letter that in March 2009 he noted depression. He referred her to Mr Westh, orthopaedic surgeon, who saw her in February 2009 and recommended cortisone injections under ultra-sound (Exhibit M), which did not eventuate.
29 There was some difficulty about applying for a Disability Pension and apparently in or about May 2009 she ceased going to Dr Al-Mulla as she had been refused a disability pension.
30 Ms Elias was referred by Dr Al-Mulla to a psychologist, Ms Kardaras, and saw her for some five months. Ms Elias reported to that specialist with right shoulder pain, neck, and with severe limitation of movement.
31 Ms Elias then in March 2009 also went at the same practice to see a Dr Georgy. That is the same practice as Dr Al-Mulla. Insofar as her attendances with Dr Georgy, who is still her GP, the clinical notes of Dr Georgy were tendered (Exhibit W). The plaintiff was cross-examined about such attendances.
32 The notes of Dr Georgy show that the plaintiff first attended for treatment generally for osteoarthritis on 31 December 2008. Ms Elias said in evidence that she was reporting continuous shoulder problems to her right shoulder, and this is certainly confirmed by Dr Al-Mulla (Exhibit L).
33 However, in cross-examination for the period December 2008 through to February 2010, it was put to the plaintiff that Dr Georgy’s clinical notes showed that she certainly complained of multiple joint pains throughout her body, but that insofar as there was any complaint of shoulder pain it was in the context of shoulders plural, and that was specifically done on three occasions only. That is a reference to the shoulders plural.
34 Ms Elias was referred for what was described as right shoulder capsulitis to a Dr Tellas in February 2010, although there was no report tendered in regard to what was the outcome.
35 In cross-examination medical attendances were further put, specifically in regard to 2010, that is from 3 March 2010 through to the 10 October 2010, when it was put that there was no shoulder complaint at all throughout that period. There were some 12 appointments during that period.
36 In cross-examination the plaintiff answered that she at all times told the doctor, despite there being no mention in the Dr Georgy’s clinical notes of specific right shoulder pain, that she was suffering right shoulder pain.
37 There was an MRI of the right shoulder undertaken on 18 October 2010, Exhibit F(i) in the plaintiff's Court book. This in fact showed that the earlier suspected tear had not occurred, it disclosed infraspinatus tendonosis, but without any tear.
38 The records show that on 5 February 2011 discussion took place between the plaintiff and her doctor in regards to the shoulder CAT scan.
39 Ms Elias was then taken to her attendances upon Dr Georgy throughout 2011. It was put that at no stage did she state that she had a problem specifically with her right shoulder, and at all times that her complaints were in the context of bilateral shoulder pain, within a much broader context of problems throughout her body.
40 In cross-examination the plaintiff said that she disagreed that she ever went for treatment in regard to both her shoulders, and it was also always in regard to her right shoulder. It was then put that for the balance of 2011, through to 17 November 2011, that there was no further complaints in regard to her shoulder, being 12 visits.
41 The plaintiff was further cross-examined as to the types of prescriptions she utilised. This compared to her reference in Exhibit B1 at p.13, and in particular in Exhibit B2 in paragraph 21, p.20 where she details the types of prescriptions undertaken.
42 In cross-examination the plaintiff was unsure as to what tablets she was taking, and for what purpose. She could not nominate precisely what she was using the tablets for.
43 As to Nexium, Celebrex, or Endep Ms Elias was unable to tell the Court when she had last taken, or utilised such tablets. She said that in regard to Mobic, which she had utilised for inflammation pain, she was unable to say when she last took it. She believed some time last year, that is 2010 and it had been prescribed by Dr Georgy.
44 In re-examination the plaintiff said that due to the severity of her shoulder pain she always told the general practitioner, despite what the clinical notes indicate, throughout that period of right shoulder pain on every occasion she visited Dr Georgy.
45 I have closely examined the notes. It seems to me that they are meticulous, they set out precisely patient reports of history. They set out the type of treatment and any prescriptions made. I cannot accept the plaintiff's evidence as to her reporting specific right shoulder pain. I do not say she is deliberately lying, however, I simply do not accept her evidence. This evidence may come about in the context of the totality of her supposed injuries, and concentration now upon the right shoulder for these proceedings. Certainly with Dr Al-Mulla in the first 5 months of 2009 she had complained specifically of right shoulder and neck pain.
46 It should also be pointed out that Exhibit E was tendered in support of the plaintiff's case, that is her son's affidavit. It supports the mother's claim, to the extent that it can, in the sense that the son attested to having observed her constant and frequent daily pain in regard to her right shoulder, her arm, her neck and her lower back.
47 Insofar as treating practitioners the only treater tendered, apart from the letters of the general practitioners and Mr Westh that I have referred to, is the rheumatologist, Dr Roland Ebringer. His report is Exhibit H at p.54 of the Court book. Ms Elias attended this rheumatologist on one occasion only. Apart from that there has been no treating specialist for the physical injuries.
48 Ms Elias was referred by her general practitioner Dr Georgy for right shoulder, right arm, leg and hip pain to the rheumatologist. When seen by Dr Ebringer in December 2009, she complained of pain and restriction of shoulder movement. She also complained of chronic pain in the neck and right shoulder.
49 Dr Ebringer diagnosed that there had been aggravation of a pre-existing calcification of the superspinatus tendon, and that such had occurred within a context, or history of arthritis affecting her whole lower body.
50 Coming then to the medico legal reports in support of the plaintiff. I should make the point that it is very difficult for the Court, where we have a series of single reports, that is, there are no follow-up reports but simply separated reports on each occasion. It makes it very difficult to get a clear picture. At any rate, that is the position and that is what was tendered.
51 The first three medical practitioners give strong support to the plaintiff's claim for her part (a) injury.
52 The first of these medical practitioners was the general surgeon, Mr Mangos, whose report was made on 28 August of 2009, and is Exhibit P at p.64 of the Court book. The major complaint to Mr Mangos was to the right shoulder. He noted given the calcification, that such calcification indicated that the plaintiff must have had previous problems in regard to that shoulder.
53 Mr Mangos recommended that the plaintiff had continuing physiotherapy and cortisone injections, at p.67. He said, at [11], "I think this lady's injuries preclude her from returning to any regular, or part time employment" as a consequence of what he said was a serious injury.
54 Mr Mangos, at [14], said, "I think her injuries also restrict her in relation to other aspects of life, such as domestic, social and recreational." He thought that long term prognosis was very poor, and as she was in chronic pain she will have reduced capacity for further studies with regard to her English. Mr Mangos’ final determination was that she has a permanent loss of use of the right shoulder, neck and back, at [21].
55 The next report given on 16 February 2010 was that of orthopaedic surgeon, Mr Kudelka, Exhibit Q at p.83 of the Court book.
56 At p.84, Mr Kudelka noted that examination of the right shoulder was not possible, because it was completely frozen, that was a similar observation made by Mr Mangos. His diagnosis was one of rotator cuff injury of the right shoulder. He noted that that was an aggravation of pre-existing degenerative change in that complex.
57 Mr Kudelka noted that, being now aged 53, while treatment could be given it was unlikely to restore normal function to the right shoulder. He thought that Ms Elias required referral to an orthopaedic surgeon specialising in shoulder injuries. He pessimistically said, however, "I believe, however, there will be an accident related impairment to the right shoulder which will persist indefinitely despite any treatment."
58 Mr Kudelka’s recommendations appear not to have been carried through insofar as treatment was concerned. However, almost a year later a report was sought by the plaintiff’s lawyers of a shoulder specialist surgeon, being Mr Hunt.
59 Mr Hunt gave a report on 7 February 2011 and is Exhibit R1, in particular at p.90 starting at 86 of the plaintiff’s Court book. At p.90 of such report he noted muscle wasting around the right shoulder girdle. He noticed on examination restriction of motion. He noted a give way weakness of the muscles around the right shoulder, and provocative tests for impingement syndrome were positive.
60 At p.91, asked to describe the precise nature of the injury, Mr Hunt said that Ms Elias was suffering from axial neck and right upper limb pain symptoms. "Her clinical presentation was consistent with symptomatic cervical spondylosis, and associated right arm radicular pain. She required further imaging in the sense of an MRI scan of her cervical spine." He said she had right shoulder calcific tendonitis, and then went on to talk about lumbar issues which are not of relevance.
61 As to the scans, Mr Hunt thought that the calcific deposits around the right shoulder were likely ongoing reasons for her shoulder pain symptoms. He noted the MRI of the 15 October 2010 (Exhibit F(i)) showing tendonitis.
62 Mr Hunt thought that those changes fitted with her symptoms, and went on to talk about pathology on imaging of the cervical spine supporting a diagnosis of symptomatic cervical spondylosis. He was asked, "If there is pathology is it likely to be of clinical significance?" He replied, on p.93, "Pathology to the right shoulder, cervical spine and lumbar spine is of clinical significance."
63 Mr Hunt postulated further treatment would be required, at 94, as to the causative connection, he said:
"On the basis of the information provided Ms Elias's actual neck and right shoulder symptoms appear to be causally connected, and that it would be likely that such symptoms would continue into the foreseeable future."
64 At (n) on p.94, Mr Hunt opined that the plaintiff is likely to continue to be restricted in the terms that I have already remarked, and all activities such as recreational and social would be likely restricted.
65 He concluded, that is Mr Hunt, orthopaedic surgeon specialising in shoulders at (p) on p.95 that Ms Elias had a profound loss of function in her right upper limb.
66 Ms Elias was then sent to a pain clinician, a Dr Muir. Dr Muir is a consultant in pain management, and his report of 3 March 2011 is Exhibit S, at p.96 of the plaintiff’s Court book.
67 Dr Muir, at p.99 said:
"The worker is suffering from a primary myofascial pain syndrome. The patient has underlying calcinosis, an inflammatory irritation of the right shoulder. There is an aggravation of pre-existing spondylosis of the lumbar spine."
At p.100, he said:
"In my opinion the patient is suffering from myofascial pain syndrome [that is muscle inflammation] affecting the right shoulder as the dominant injury. This has triggered a moderate to severe secondary psychological reaction which is driving her principal disability. The patient also suffers widespread pain over the axial pain, and this in large part is aggravated by a secondary psychological response to her situation."
68 Dr Muir was then asked:
"Do the radiological films demonstrate an organic basis for your client's complaints?"
His answer was:
"There is a radiological basis for your client's complaints. In my opinion the major driver of her disability is chronic pain driven by secondary psychological reaction, as well as the secondary myofascial factors."
Dr Muir was then asked:
"If there is pathology is it likely to be clinical significance?"
His reply was:
"This aggravation has triggered secondary physical, and psychological components that are driving the ongoing disability."
69 Finally, at p.101, Dr Muir said the injuries, or structural and physical injuries are stable, "With respect to the disability flowing from these I hope they will be tractable to change." As to the future he said, "Failing significant treatment", which does not seem to be indicated by anyone, “your client’s injury will restrict her significantly in all of the abovenamed activities”.
70 Ms Elias was also sent for a medico legal opinion to Mr Simm, an orthopaedic surgeon, whose report of November of 2011 is Exhibit T, at p.109 of the plaintiff’s Court book.
71 On physical examination, at p.111, Mr Simm said:
"She presented as a stressed unhappy person who seemed to be in constant and severe pain.”
As to her right shoulder upper limb, he said:
"She held her right arm close to her body, and avoided all spontaneous movements."
Then as to the cervical spine, at p.113, Mr Simm said:
"She suffered an acceleration hyper extension injury to her cervical spine which has been that of a whiplash syndrome with an associated psychological disturbance. She has right upper limb symptoms, but no objective clinical signs of radiculopathy."
72 In regard to the right shoulder Mr Simm said that the physical injury is now obscured by the development of a severe pain syndrome with a focus of symptoms in the region of the right shoulder.
73 Mr Simm was asked:
"Do the radiological films demonstrate an organic basis for our client's complaints?"
He said this:
"The X-rays show some pre-existing degenerative change… The CT of the cervical spine showed degenerative change, therefore it's possible there is an organic contribution to the ongoing complaints, but her clinical presentation indicates that the physical condition is now largely overwhelmed by very severe chronic pain response with functional features."
He finally said, at p.114, as follows:
"The pain response seems to be greatly amplified by non organic and/or psychological factors."
74 Mr Simm was asked as to the future:
"Future treatment should be directed to her chronic and severe pain response. I was unable to identify a persistent physical condition that required formal treatment. I would not recommend any invasive treatment to the right shoulder."
As to activities he said at the bottom of p.114:
"Chronic pain will continue to confine her to virtually no physical activities in relation to social, domestic and recreational pursuits."
75 Then finally at p.115 as to general prognosis he said:
"My general prognosis is that your client is likely to continue to suffer from severe pain response and associated emotional disturbance, and that she will be extremely difficult to treat."
76 The defendant in regard to the physical injury tendered a number of reports, three of a rheumatologist, Associate Professor Littlejohn (Exhibits 2(a), 2(b) and 2(c) and three of Mr Dickens, orthopaedic surgeon (Exhibits 1(a), 1(b) and 1(c)).
77 Mr Dickens, at p.19 of Exhibit 1(a), noted that Ms Elias said before the accident she had never had any neck, right arm, right leg pain. In the cervical spine he noted gross restriction to all movements as to formal testing. In regard to the right upper limb he noted internal and an external rotation grossly restricted.
78 Mr Dickens’ overall impression was there was a significant degree of what he called abnormal illness response. He noted the ultrasounds. As to diagnosis he said this:
"The injury resulting from the accident are almost impossible to determine."
At p.21 he said:
"In view of the investigation findings which are essentially normal I believe she did have calcification in the rotator cuff in the right shoulder which is a pre-existing condition and that may have been aggravated by the accident. That would suggest there was some aggravation resulting from the accident. All the other arm symptoms I find impossible to interpret."
Finally, at p.22, as to prognosis he said:
"I would have to say there's very little evidence that this lady sustained serious structural injuries as a result of the accident, but the response to the accident is of such a abnormal nature that I doubt she's ever going to become symptom free."
As to his final comments under the section of serious injury he said:
"… this lady has adopted an illness role… I cannot imagine that she would improve in any way in the future, but all of this is due to non organic factors rather than the injuries she sustained in the accident."
79 Mr Dickens saw the plaintiff again in November 2011, and the report to that effect is tendered as Exhibit 1B, and is located at p.10 of the defendant’s Court book.
80 As to the right arm pain, Mr Dickens noted Ms Elias continued to complain of right arm pain going down into the elbow, having restricted movements, and was unable to sleep on the right side. He examined her. He noted current treatment.
81 Mr Dickens noted Ms Elias was depressed, not taking any medication at that time. He says that all of her medication was stopped, because of constipation, in evidence Ms Elias confirmed that and explained somewhat graphically the difficulties that she's had.
82 Mr Dickens, at p.13, noted that neurology in the upper limbs demonstrated normal reflexes, sensation which was of global loss of feeling involving the whole of her right arm when compared to the left, and attempts at assessing power resulted in virtually no motor function effort. Specifically as to the right shoulder he said:
"It was impossible to assess the range of movement of the shoulder, because the patient complained of pain and would not move the shoulder to any significant degree. She was tender everywhere I palpated."
83 Finally as to his diagnosis at p.14 he said Ms Elias:
"… did sustain soft tissue injuries to the cervical and lumbar sacral spine, and to the right shoulder [as a result of the accident]… there were certainly some pathology to the right shoulder. I believe the accident caused a temporary exacerbation of symptoms in those areas. I believe that there is a significant abnormal illness response to her current symptoms. ANALYSIS OF FINDINGS I have indicated I believe the injuries were minor, and temporary aggravation of underlying pathology in the cervical spine, lumbar spine and right shoulder. There is an abnormal illness response which makes assessment virtually impossible. I believe the pre-existing pathology was aggravated, but only temporarily as a result of the accident."
84 Mr Dickens was then asked to provide a further report which he did, Exhibit 1(c), because he did not have the MRI (Exhibit F(i)), which showed there was no tear to the shoulder. This further report was an additional document located at p.9A of the defendant's Court book.
85 Mr Dickens also was in receipt of the report of Mr Kudelka dated 16 February 2010 (Exhibit Q), and noted Mr Kudelka's reference to observing at the time of frozen shoulder, which he said he noted was according to his interpretation. He said, "I am interested that Mr Kudelka believes that this is the only significant accident related problem [that is the rotator cuff]”.
86 In fact, Mr Dickens makes the point in his last paragraph that he accepts there may be other soft tissue injuries to her back, and knees but doubts there will be any long term impairment.
"As I indicated in my report there was such an abnormal illness response it was extremely difficult to assess any of her orthopaedic conditions appropriately... I believe there was significant amplification of her symptoms... I would agree with Mr Kudelka's opinion that the spinal problems were soft tissue injuries, which one would have expected to have substantially improved if not completely resolved, and were a temporary exacerbation of what was in effect, underlying pathology."
87 Mr Dickens, however, disagrees in regard to the shoulder and maintains his opinion where he said:
"I believe the same is true for the right shoulder problem, and that many of the manifestations demonstrated when I examined her, on the most recent and on the previous occasion, are indicative of an abnormal illness response."
88 The further reports of the defendant are from Mr Littlejohn, rheumatologist. Mr Littlejohn's reports are firstly located at Exhibit 2(a) at p.30 of the plaintiff’s Court book, that is a report of 16 April 2010. At p.36, he said:
"Ms Elias has clinical features of right upper quadrant regional pain syndrome… She has significant abnormal tenderness to gentle pressure through this region as well as unusual sensations of discomfort."
89 Mr Littlejohn diagnosed chronic pain syndromes. He said that it was likely that the psychological consequences of the accident had triggered the chronic pain syndrome as described. He said:
"On top of this pain syndrome she exhibits significant abnormal pain behaviour. "
90 Mr Littlejohn’s comments as to serious injury on p.38 were:
“[That she had] a significant chronic pain syndrome… she requires a pain management program focusing on psychological rehabilitative… strategies, [and that] her pain syndrome does interfere with her ability to work, and her inability to work will continue as long as she has her current level of disability”.
91 Mr Littlejohn saw the plaintiff again on 20 September 2011, and that report is Exhibit 2(b), at p.24 of the defendant’s Court book. At p.26 he noted that she said she was not seeing a psychologist, or having any interventional treatment such as injections, or surgery. At p.27 Ms Elias almost total loss of function, and an inability to cope with normal activity. At p.28 Mr Littlejohn said, under OPINION, as follows, she:
"… continues to have clinical features of right quadrant regional pain syndrome as her dominant problem… In addition she has abnormal tenderness and pain in other regions… Her presenting condition in my opinion is fibromyalgia… I would expect slow improvement over time… A psychiatric opinion on that matter would be important. I detect the significant presence of functional component… I think this is the main driver of her chronic pain syndrome."
He finally concluded:
"I believe if there was no psychological input into her pain problem she would have near normal social and occupational function."
92 In assessing all of the medical evidence I find that the opinion of Mr Dickens as confirmed by Dr Muir, Mr Simm and Mr Littlejohn is to be preferred to that of Mr Mangos, Mr Kudelka and Mr Hunt, and that such finding is consistent with the limited complaints made to Dr Georgy from December 2008 through to November 2011, being that such complaints in regard to the shoulder were generally in the context of general complaint as to pain all over her body, and as to bilateral shoulder pain, albeit that more specific complaints had been made to Dr Al-Mulla in early 2009.
93 I find, in the terms of the focus required as detailed by the Court of Appeal in Richards & Anor v Wylie, that I am not satisfied the injuries to the cervical spine, or the right shoulder of the applicant, which on the evidence could have been organic injuries are, as at this date, that is the date that I make the determination, either now in existence as a fact, or if they are I find that the impairment of bodily function and physical consequence there from are not long-term or serious. I therefore dismiss the application in regard to the alleged part (a) injury.
94 Given my findings in regard to the part (a) application it is clear that the focus as to the alleged impairment of bodily function is the product, or appears to be the product, or largely the product of mental, or behavioural disturbance, or disorder. As Mr Robert Dickens called it, "An abnormal illness response", or as Dr Muir suggested the major driver of her chronic pain was her moderately severe secondary psychological reaction .
95 Coming then to the part (c) application. In cross-examination the plaintiff said she was depressed. Yet again it was put to her from an analysis of the general practitioner's records, that is Dr Georgy and his clinical notes from the period December 2008 through to November 2011 that there was only one reference to depression being in April 2009, when there was a prescription at that time of the prescription medicine Zoloft, see Exhibit W.
96 However, as I have already remarked, the plaintiff was at the same surgery at or about the same time seeing Dr Al-Mulla. In looking at his notes it is clear that in January 2009 the doctor has prescribed the plaintiff Endep apparently for depression and Temaze for sleep issues. Further, Dr Al-Mulla noted that he specifically treated her for depression on 27 February 2009.
97 Ultimately, Dr Al-Mulla referred her to the psychologist, Ms Claudia Kardaras, who treated the plaintiff for the period May 2009 through to January 2010. Indeed, there was a report tendered by such treating psychologist, which is Exhibit O, dated 28 September 2011 located at p.58 of the plaintiff’s Court book.
98 The diagnosis made by the psychologist was of a post traumatic stress disorder, which is reported at p.60 of the plaintiff’s Court book. Consistent with such a disorder are reported symptoms of anxiety, sleeplessness, migraines, depression and phobia in regard to cars.
99 At p.61 it was Ms Kardaras’ professional opinion that Ms Elias was suffering from post traumatic stress disorder, that it was a direct result of the motor car accident and that the symptoms of such disorder and chronic pain were quite severe.
100 At p.62, Ms Kardaras stated that the plaintiff could not go back to employment, because of such conditions that alternate work was not an option for her.
"During our sessions, I do not believe that Ms Elias would have any residual capacity for employment."
101 Ms Kardaras had not seen Ms Elias since January 2010, and although this report was sought by the plaintiff’s solicitors and provided in September 2011, Ms Kardaras obviously based her opinions in this report upon her observations prior to January 2010.
102 It is important to make the point that indeed since January 2010 the plaintiff appears to have had no other treatment at all for psychological, or psychiatric conditions, nor for any pain conditions. She could not, as I have already said, advise the Court what medication she has had, and specifically whether she has had any medication for depression, or any mental condition.
103 The type of treatment, its frequency and the manner in which a person is treated for such conditions are of course particularly relevant considerations in a part (c) assessment, see Turner v Love & TAC.
104 The plaintiff tendered in support of this application two medico legal reports. The first was Exhibit D, the report of Associate Professor Paoletti, located at p.70 of the plaintiff’s Court book. The report is dated 19 November 2009.
105 At the time of seeing Ms Elias she was not attending a psychologist, apparently because she was undergoing physiotherapy. At pp.75 through to 76 Ms Elias reports the symptomatology that she was suffering, which is consistent with what I have already described.
106 Ms Elias confirmed, at p.74, that she was no longer taking Mobic and is now only taking Panadol. At p.75, it was noted that the plaintiff was on Endep, apparently for pain management, but it can also be of course an antidepressant. Although it does not appear as a prescription from her general practitioner, however, consistent with what Ms Elias said in Court, she could not remember what size tablets, but at that stage she said that she was taking them twice a day.
107 Professor Paoletti made a diagnoses as follows, at p.78:
"An anxiety disorder not otherwise specified, a chronic adjustment disorder with depressed mood and amnestic disorder with memory difficulties, which is probably emotional associated with the previous two diagnoses.”
And he thought the accident was a contributing factor to each of those.
108 As to her future, Professor Paoletti thought Ms Elias wouldn't have any work capacity at present, even on psychiatric and psychological grounds alone, and that she was in need of treatment to produce, to use his words, "self management."
109 It is noted of course that there was no diagnosis by Professor Paoletti of post traumatic stress disorder. As I said, he was cross-examined. In such cross-examination he said that he had no reason to doubt the presentation of the plaintiff. He thought that the anxiety and depression produced by the accident was significant in clinical terms. He said that Ms Elias’ symptoms did not satisfy the criteria for a diagnosis of post traumatic stress disorder.
110 Insofar as Professor Paoletti’s conclusions that she had lost her capacity for work, he said that he had not been given a history, but assumed that she had been working prior to, and was surprised to be told the reality was that at no stage had she ever worked in Australia.
111 Professor Paoletti was asked to classify the diagnosis that he made at p.78, that is in regard to the three disorders. He said that over the whole range and based upon the symptoms he would classify the disorders as moderate, and their impact would be moderate. Indeed, each of the diagnoses as set out would be classified as a mild disorder, and that there is no major depression condition, or no major pain condition as far as he was concerned.
112 Professor Paoletti was re-examined and said that he thought the major problem that she suffered from was anxiety. As to the psychiatric impact, he thought it was very significant "in Court speak", to use his words, "but not so in a clinical setting." I am not quite certain of the differentiation there, but the Court is only interested in what is the clinical diagnosis, not particularly about Court speak.
113 The next report is Exhibit C, at p.103 of the plaintiff's Court book, Associate Professor Eng-Seong Tan. This report was dated June of 2011. The Professor made the assessment of the plaintiff and saw her in February 2011.
114 The diagnosis of Associate Professor Tan, as set out at p.105, was of post traumatic stress disorder, which he related to the accident and which based upon the symptomology he assessed as severe. The Professor saw the symptoms that she suffered as justifying the fact that she could not carry out her usual lifestyle activities, and that she could not work.
115 At p.106, in regard to (g) and (h), the Professor made conclusions that seemed to me designed more for the law Courts than a independent medical opinion. I repeat them for emphasis.
116 In (g), the Professor said that as a consequence the psychiatric condition was a direct result of the accident, which had a marked, and significant impact on Ms Elias's ability to engage in her usual social recreational and domestic pursuits, and following on in the same legal phraseology in (h), "In view of the long lasting nature of the post traumatic stress disorder it is likely that these restrictions maybe long term." Then the Professor referred to her incapacities.
117 Associate Professor Tan was then cross-examined. He said that the pain that she was suffering, in his opinion, was largely due to her physical complainants, but that such impacts on her ability to recover from her post traumatic stress disorder.
118 The Professor was cross-examined forcefully by Mr Curtain as to how he came to the diagnosis of post traumatic stress disorder, and what criteria led him to such diagnosis. It was specifically put to him the criteria set out in DSM4, and in particular paragraph 3.3.
119 Professor Tan said despite not recording the clinical features in his notes necessary for such diagnosis he had made the diagnosis and was satisfied with such. He specifically disagreed with Associate Professor Paoletti’s diagnosis, that is of the three conditions, three conditions not including post traumatic stress disorder.
120 The Professor was then re-examined, he maintained the integrity of his diagnosis especially when one, as he said, looked at the presentation of the plaintiff. He certainly excluded the diagnosis, which I will come to in due of another psychiatrist, Dr Entwisle, of a major depressive illness and/or pain disorder. In this regard he was at one with the opinion of Associate Professor Paoletti.
121 The plaintiff also tendered the reports of the consultant psychiatrist, Dr Entwisle, which had been obtained by the defendant. They are in the defendant's Court book, Exhibit Y(1) at p.5 being a report of 18 January 2010, and Exhibit Y(2) at p.1 being a report of 9 November 2011.
122 The diagnosis of Dr Entwisle in January 2010 was, at p.8 of Exhibit Y(1), of an adjustment disorder with depressed and anxious mood, and a pain disorder. It appears to be secondary to a pain disorder. As to serious injury he said at p.8 as follows:
"The prognosis for her condition is difficult to determine. Her presentation and account was strewn with various illness behaviours and Ms Elias presents herself as incapacitated despite what appears to be a minor injury. "
123 Dr Entwisle then saw the plaintiff two years later in November 2011. As to his diagnosis, at p.2 of Exhibit Y2, he noted that her affect was depressed and tearful, and that she has a major depressive illness and pain disorder. At p.4[2] he noted as follows:
"She has no capacity for work, and her domestic and social activities are extremely limited due to the combination of the pain disorder, and major depressive illness. She's not having any psychiatric treatment."
At [4] he said:
"It was difficult to obtain an accurate history from Ms Elias in regard to her previous life, but what details I did gather indicate she was part of a long and unhappy marriage, that her son had bought her to Australia since she completed her teaching career. There is little support available to her in regard to her social network. These factors represent fertile ground for the development of her pain disorder, and resultant depressive condition. She's not undertaking appropriate psychiatric treatment, and in the absence of treatment her depressive illness continues."
124 In the final address of Mr Curtain he submitted to the Court that of the four experts. Ms Kardaras and Associate Professor Tan had diagnosed a post traumatic stress disorder, Dr Entwisle a major depressive illness and major pain disorder, and Associate Professor Paoletti three specific disorders, all of a mild degree.
125 Mr Curtain submitted that the onus is on the plaintiff, and he submitted that given the evidence in this case the Court should accept the opinion of Associate Professor Paoletti as the correct assessment, albeit, in each instance mild. And Mr Curtain submitted that such did not satisfy the required test.
126 Mr Gorton in submission, in regard to this aspect, said that at all times, which is quite correct, the Court must look not so much at classifying the injury, but to the consequences. He submitted the Court should find ongoing anxiety, depression and an exacerbation of those injuries by way of chronic pain, and a pain response to such pain.
127 Mr Gorton submitted that Mr Curtain's obsession with labels was totally irrelevant to this Court, and that what this Court is interested is the consequences of the injuries.
128 Mr Gorton submitted, and reminded the Court, that there had been no issue insofar as the credit of the plaintiff was concerned. He noted that there had been surveillance tapes, and nothing was put to Ms Elias in cross-examination on that matter. He submitted in this regard that the defendant had never challenged her son's total support for her as set out in Exhibit E.
129 I take into account all of those reports and the submissions of counsel.
130 I am required to assess the evidence to see if the plaintiff has met the burden. TAC v Kamel [2011] VSCA 110 was referred to me by Mr Gorton, a determination of Kyrou AJA, which related to a part (a) injury, and the impact of pain insofar as a part (a) injury, but I was referred to the comment of the Judge in the particular circumstances of that case:
"The endurance of permanent pain requiring two Nurofen Plus tablets about three times a week can be regarded as a very considerable physical consequence of the lumbosacral spine."
131 However, the test in regard to this injury is that as set out in Mobilio, and that is of severe long term mental or severe behavioural disturbance or disorder.
132 In considering all of the evidence I have formed the conclusion that the lack of reporting, and the lack of treatment as demonstrated in Exhibit W, being Dr Georgy's clinical notes, and the failure to undergo any treatment after ceasing with Ms Kardaras in January 2010, or to partake of any pharmaceutical treatment by way of prescription is indicative of the true condition of Ms Elias. In so concluding I do not disregard the treatment from Dr Al-Mulla and Ms Kardaras in 2009.
133 I reject Associate Professor Tan's evidence, as I say, his report has more of a tone of trying to comply with s.93(17) rather than provide the Court with a probative and independent analysis as required from a medical physician.
134 I have concluded that the analysis of the condition, as best I can comprehend in conformity with my observation of the plaintiff and in particular, the observation of the clinical records of Dr Georgy, is as diagnosed by Associate Professor Paoletti, that is that in regard to each such diagnoses, each of them is moderate. Despite the diagnoses made by Dr Entwisle, I am not satisfied that Ms Elias meets the test of serious injury.
135 Indeed, the social factors that I refer to mentioned in Exhibit Y(2) at p.4[4] of Dr Entwisle's report provide alternate fertile ground for this pain disorder, and depressive condition. Irrespective of its cause, however, I am not satisfied to the required degree that the plaintiff has proved her case.
136 In assessing the mental, or behavioural disturbance impairment objectively and in accordance with s.93(17) part (c) of the definition of serious injury, I do not find that the consequences of her pain and suffering and impairment of her lifestyle to be severe, or to be long term and I therefore dismiss the application.
I therefore dismiss both the part (a) and part (c) applications.
MS MANOVA: If Your Honour pleases, there are no further orders that are sought by the parties, Your Honour.
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