Elyas v Transport Accident Commission
[2020] VCC 1862
•2 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04250
| SALWA ELYAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 November 2020 (via Zoom) | |
DATE OF JUDGMENT: | 2 December 2020 | |
CASE MAY BE CITED AS: | Elyas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1862 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – somatic pain disorder
Legislation Cited: Transport Accident Act 1986, s93(c)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr T Nathanielsz | Slater & Gordon |
| For the Defendant | Mr D Masel QC with Mr S Pinkstone | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction and background
1 The plaintiff, Salwa Elyas, was born in Iraq in 1974. She married her husband in Baghdad in 2006. In 2008, her eldest son was born. Another son was born in 2010. The family migrated to Australia in 2013 and settled in Melbourne. The plaintiff has never been in paid employment in Iraq or in Australia.
2 On 5 February 2014, the plaintiff was a passenger in a vehicle driven by her cousin, with her four-year-old son also in the rear. A collision occurred at an intersection at Epping, and as a result the car in which the plaintiff was travelling rolled over and came to rest on its roof, with the plaintiff suspended upside down. If that was not frightening enough, at the time of the accident the plaintiff was eight months pregnant and understandably she was concerned for her unborn child. She was taken by ambulance to the Royal Melbourne Hospital. Foetal distress was noted and an emergency Caesarean section was performed. Thankfully her third son was born alive and well.
3 After the birth of her third son, the plaintiff was discharged home on 9 February 2014. Soon after she was referred back to the Royal Women’s Hospital and was seen at the psychiatric clinic at the hospital on 28 February 2014.[1] At hospital she was found clinically to have symptoms consistent with post-traumatic stress secondary to the motor vehicle accident. She was referred back to her general practitioner with a request to be referred to a psychologist. The plaintiff was reviewed at the Royal Women’s Hospital on 28 March 2014, where the diagnosis of Post-Traumatic Stress Disorder (“PTSD”) with Comorbid Depression was confirmed. At that stage she was still awaiting a referral to a psychologist.
[1]Plaintiff’s Court Book (“PCB”) 35
4 Thereafter, the plaintiff describes widespread pain in her neck, lower back, left arm, right leg and an ongoing psychological reaction. She has been treated by the general practitioner, Dr Basim Francis,[2] the chiropractor, Dr Daniel Chatfield,[3] and rheumatologists, Dr Victor Karlov[4] and Dr Talib Tahir.[5]
[2]PCB 36
[3]PCB 32
[4]PCB 41
[5]PCB 63
5 The plaintiff has had limited conservative treatment. Despite her ongoing complaints of pain, the plaintiff has managed to return to engage in a wide range of day to day and domestic activity. Her fourth child, a daughter, was born in 2016. More recently she has been prescribed medication and has had treatment with a psychologist, Stevie Marcus, to manage her psychological symptoms.
6 It is clear on the totality of the medical material, that the plaintiff’s complaints are best understood on the basis of a psychological reaction to the accident.
7 This is a serious injury application pursuant to the Transport Accident Act 1986 (“TAA”). Mr McGarvie QC and Mr Nathanielsz appeared on behalf of the plaintiff. Mr Masel QC and Mr Pinkstone appeared on behalf of the defendant. The plaintiff gave evidence and relied on three affidavits. She also relied on two affidavits from her husband. Otherwise, as is the usual course, the parties tendered medical reports from their Court Books. In addition, the defendant tendered and played video surveillance obtained of the plaintiff on 11 December 2019. Much of the cross-examination of the plaintiff was by reference to the video surveillance.
8 I have taken all of the tendered material, the video surveillance and the transcript of evidence (which was not available when counsel made final submissions) into account, but shall only refer to the material in these reasons to the extent necessary.
9 The plaintiff’s case was opened on the basis that she relied upon the definition of “serious injury” contained in both s93(a) and s93(c) of the TAA. Ultimately the application for “serious injury” was only pursued on the basis of the definition contained in s93(c). In order to satisfy that definition the plaintiff must demonstrate that she has suffered a “severe long-term mental or severe long-term behavioural disturbance or disorder”.
10 The issues in this case to be decided are:
(a) the reliability and credit of the plaintiff (the “reliability issue”);
(b)whether the plaintiff’s condition is sufficiently stable so as to enable a finding of “serious injury” (“the stability issue”); and
(c)whether the impairment and impairment consequences suffered by the plaintiff by reason of the claimed psychiatric condition meet the test of “severe” (the “range” issue).
The reliability issue – the unreliable affidavit material
11 In a serious injury application the reliability of and credit of the plaintiff is often critical to the determination of the application.[6] This is perhaps even more so in an application relying upon psychiatric injury where there may not be the otherwise objective indicators of serious injury there might be in an application based on a physical injury, such as radiology or] surgical investigations.
[6]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph [87]
12 The plaintiff is a lady with limited education and limited English-language skills. She gave evidence via an interpreter. She has no formal training or qualification, has never been in paid employment and has language barriers. I take those factors into account to make some allowance for the inconsistencies in her affidavit evidence. But, in the witness box, with the benefit of an interpreter, she appeared to understand questions and gave sensible answers. She made appropriate concessions and gave answers that were against her interest. If the only credit or reliability issue was how she presented in the witness box, then that issue would quickly fall away.
13 The reliability issue arises because the plaintiff’s evidence in the witness box is not consistent with her affidavit evidence, or the histories obtained by doctors. Further, her affidavit evidence and some of the histories to doctors, in my view, is inconsistent with what was seen on the video surveillance.
14 It is sufficient for these reasons to highlight a few examples of the inconsistencies in the plaintiff’s evidence.
15 In her first affidavit, sworn 23 May 2018, the plaintiff said “I continue to suffer constant pain and stiffness in my spine, in particular, in and around my neck and lower back”. She described such pain as “severe” at times and described difficulty with various movements such as bending, lifting, twisting and pushing and pulling movements.[7]
[7]PCB 10, paragraphs [22]-[26]
16 In her second affidavit, sworn 29 April 2019, she says that if anything, her condition had deteriorated. She described “constant pain and stiffness in my spine”.[8]
[8]PCB 15, paragraph [4]
17 In her most recent affidavit, sworn on 17 November 2020 and after she had seen and had knowledge of the video surveillance, the plaintiff said that she continues to be troubled by a persisting spinal pain and stiffness, more so in her neck and lower back. She goes on to say that the activities depicted in the video surveillance are activities which “all serve to increase the level of pain that I am in”.[9]
[9]PCB 20, paragraph [8]
18 It is convenient now to say something about the video surveillance. It was obtained over a nearly two-hour period, although there were periods when no video was obtained. In the video, the plaintiff is shown to engage in a range of ordinary daily activity, such as shopping and lifting her then three-year-old daughter. She is seen to engage with her husband and daughter. The video shows no obvious restriction, or any obvious signs of stiffness, or of the plaintiff in any way being limited by pain. There is nothing in the video that would suggest the plaintiff avoided any activity because it would provoke an increase in pain.
19 Video surveillance must, of course, be taken in context and is only a snapshot of a particular point in time. However, the video surveillance is, in my opinion, inconsistent with the picture painted in the affidavit material, namely of constant pain, severe at times, with associated stiffness and difficulty with various movements. Indeed, if this was an application based on a claimed physical injury, then I would consider the video surveillance to be determinative of the application. But this is not an application that now relies on a physical injury. In the circumstances, I agree with the comments of Dr Lewis, psychiatrist, in his last report of 15 November 2020, obtained at the request of the defendant, insofar as he says that “My experience is that surveillance footage is notoriously unreliable in extrapolating an individual’s psychological state. It is simply not possible to know what an individual is thinking or feeling via surveillance footage”.[10]
[10]Defendant’s Court Book (“DCB”) 33
20 The video surveillance does not destroy the plaintiff’s case but equally it demonstrates her as being able to engage in a range of day-to-day activity, with no obvious restriction and indeed in circumstances which are inconsistent with the affidavit material. I accept that via the video we cannot tell what the plaintiff was thinking. But we can see what she is physically capable of.
21 The major ‘problem’ in respect to the “reliability issue” is her own viva voce evidence. The only way we can assess what the plaintiff might have been thinking on a particular day is for her to be asked about the events depicted in the video. As mentioned earlier, she struck me as candid when in the witness box. In the witness box she did not seek to paint anywhere near as bleak a picture as has been painted in the affidavits. Mr McGarvie sought to justify that in final submission when he submitted:
“albeit that the reliability of the witness is to be judged by what has been said in affidavits, it is to be borne in mind that these affidavits are not prepared by the clients themselves. They’re filtered by lawyers and different lawyers take different approaches. So, we say in that regard that the plaintiff has given us good account herself as she can, and that her evidence ought to be accepted … .”[11]
[11]Transcript (“T”) 98, Lines (“L”) 14-21
22 Further in final submission and on this topic, Mr McGarvie submitted that “all the more reason not to put too much weight in an affidavit in circumstances where Your Honour has had the advantage of seeing the plaintiff cross-examined and having the subject explored extensively.”[12]
[12]T100, L16-20
23 I am not attracted to a submission that I should ignore unhelpful aspects of the plaintiff’s affidavit because it has been filtered by a lawyer. At the end of the day it is sworn by her as accurate and it is no secret that these applications are brought by affidavit and that there is close scrutiny of the affidavit material at the hearing of the application. She could have been asked, for example in re-examination, whether her affidavits had been filtered or were inaccurate. But in any event, if the submission is accepted that I should not put “too much weight” on the plaintiff’s affidavit, then we return to her viva voce evidence.
24 In cross-examination, the plaintiff gave evidence that on the day the video was taken she was “comfortable”[13] she accepted that she was able to engage in the activities depicted in the video, including shopping for shoes and food, lifting her daughter into a shopping trolley and out of an amusement ride. Mr Masel put to her:
[13]T58, L28
Q:“Can I suggest to you that what we’re seeing in this video is someone who is moving completely fluid by themselves, no need for assistance from someone else. That’s what we’re seeing, isn’t it?---
A: Yes, correct, on this day I was feeling okay, correct.
Q:And if it was the case that repeated physical activity caused you pain you would have avoided the activities that we are seeing here, wouldn’t you?---
A: Correct.”[14]
[14]T55, L4-11
25 The plaintiff was cross-examined about her affidavits. The effect of her answers in cross-examination was that she has good days and bad days. She said “the pain is there all the time, but sometimes because psychologically I am able to maintain it, so I’m able to handle it”.[15]
[15]T70, L1-3
26 The plaintiff was cross-examined about the recent treatment with Stevie Marcus, psychologist, noting that there is no mention of that treatment in her affidavits or in her husband’s affidavits. It was put to her that with such psychological treatment she was making improvement and she agreed.[16] She also accepted that with the assistance of Stevie Marcus, she was now able to better engage in a range of day-to-day activity. She agreed that there had been “a bit of improvement”.[17]
[16]T34, L12
[17]T72, L30
27 Further, regarding the treatment with Stevie Marcus, in re-examination she said that with assistance from Stevie Marcus she was better able to handle panic attacks.[18] Next, in re-examination the plaintiff was asked:
Q:“So when your mood is good, you find you have a greater physical ability, is that what you are saying?
A:Yes”.[19]
[18]T78, L24
[19]T78 L10
28 In re-examination, the plaintiff was asked:
Q:“And in any week, what number of good days and what number of bad days do you say you would have?---
A:Four days I’m okay, four days I’m not. Five days I’m okay, two days I’m not. It depends.”[20]
[20]T76, L5-8
29 The plaintiff’s oral evidence that four days out of eight, or five days out of seven, she feels good is at odds with her affidavit material. The question then is if I accept that evidence – that is four days out of eight or five days out of seven, she has good days and is able to function at least at the level shown in the video, then is that serious? The answer to that question involves attempting to ascertain what it is that the plaintiff has lost or cannot do on a bad day, and what her level of pain is.
30 The answer to that question is more difficult in circumstances where, as her own counsel accepts, the affidavit evidence is unreliable. Notwithstanding that concession, Mr McGarvie did attempt to place some reliance on the pain and suffering consequences as set out in the affidavit material. I do not accept the submission that the plaintiff can rely on the helpful parts of the affidavits and ignore the unhelpful. She cannot have it both ways.
31 I am not satisfied that even on a bad day the plaintiff has pain and suffering or pecuniary loss consequences (in combination) so as to meet the test of “severe”. Indeed, it is difficult to extrapolate from the objective evidence what, if anything, the plaintiff has lost or what her pain levels are on a bad day. Since the accident she has obtained her driver’s licence. She is able to drive, to go shopping, to look after her home and engage with her family. At its highest, she may require some assistance with some tasks, such as bathing the youngest child[21] or looking after the house.[22] In the modern world it is no surprise that her husband might help manage four children and the house, particularly when he does not work. In any event, leaving aside comments about the modern world, the fact is the plaintiff is able to engage in all of the things that she did before the accident, perhaps at times with some limited assistance from family. She has gone on to have two more children. She is actively involved in the care of the children. She presents as a caring and devoted mother to her children. But when looking at the impairment consequences, I am simply not satisfied that her psychological condition meets the test of “severe”.
[21]T80 L4
[22]T79 L16
The stability issue
32 For completeness, I will next deal with the stability issue. That issue arises in part from the plaintiff’s oral evidence and because of the reports from Stevie Marcus, the plaintiff’s treating psychologist. Notwithstanding the early diagnosis of an evolving psychiatric condition at the Royal Women’s Hospital, it seems to have taken some time for the plaintiff to undergo appropriate psychological treatment. Stevie Marcus consulted with the plaintiff on 3 June 2019. In a report of 23 January 2020, Ms Marcus provided her opinion that the plaintiff had developed Major Depressive Disorder and Generalised Anxiety Disorder.[23] She also noted that the plaintiff had chronic pain symptoms and has experienced panic symptoms, including; difficulty breathing, chest pain and palpitations. In a further report of 31 August 2020 Ms Marcus noted ongoing treatment up to 27 August 2020.[24] Ms Marcus records the plaintiff - in regards to her pain experience - reporting that:
“… she could cope with her pain without medication, and tried to live a normal lifestyle for her ‘family and children’s sake’ despite her pain at times. Furthermore, Salwa has reported that she has gradually become more active, despite the pain, which has helped her to build her confidence to still accomplish her goals.
Salwa also reported that after being prescribed anti-depressants by her GP, her sleep has improved (sleeps 6-7 hours straight) and has noticed gradual and slight improvement in her mood. Salwa’s panic symptoms have decreased, and now experiences about one panic attack every two weeks.[25]
[23]PCB 66
[24]PCB 69
[25]PCB 70
33 In respect to further treatment, Ms Marcus recommended approximately ten sessions over the following eight-month period to help the plaintiff to develop skills to manage her symptoms and improve her low mood and anxiety. At that point Ms Marcus notes that the plaintiff was not working and was a full-time house worker. She says that “Based on her current symptoms and ongoing stressors, she cannot cope with more than this”.[26] She states that she could not comment on the plaintiff’s future capacity to work “as her psychological and pain symptoms have not yet stabilised”.[27]
[26]PCB 72
[27]PCB 72
34 The thrust of the reports from Ms Marcus is of improvement over the last twelve months, which is the first period in which the plaintiff has had any real psychological treatment and medication. The plaintiff is apparently on the waiting list for a pain management program. Even without such a program, Ms Marcus is hopeful of further improvement. At the risk of repetition, the plaintiff, in her oral evidence, accepts that the treatment from Ms Marcus had encouraged her (to engage in domestic activities) and as a result she feels better.[28]
[28]T79 L25
35 It could be said that the discrepancies in the affidavit material are explained because the plaintiff’s condition has improved over the last twelve months with the treatment from Dr Marcus (the treatment that is not referred to in affidavits). That makes little difference to the ultimate resolution of this proceeding, because with such improvement her condition and consequences are simply “not severe” at present. I do not consider the stability issue to be a major issue in the resolution of this application. The plaintiff may experience some slight improvement in the future but that is immaterial, as on my assessment her condition is not “severe” at present. Therefore, even if there is no further improvement, the result is the same.
The range issue
36 In my opinion, whatever symptoms and restrictions the plaintiff currently experiences, they are not “severe”. I have already dealt with this issue to some extent in these reasons.
37 When the case was opened the plaintiff, through her counsel, indicated reliance would be placed on both pain and suffering and pecuniary loss consequences. The plaintiff’s affidavit material is wholly silent as to any pecuniary loss consequences. The plaintiff has never been in paid employment, either in Iraq or in Australia. That is not meant to sound as if I am critical of her. It is clear that she has been engaged in unpaid domestic work as the homemaker and raising her children. The evidence of any intention to look for work is extremely limited. As mentioned, it is not found in her affidavit material. The plaintiff has limited English-language skills. She has no formal qualifications. She has never looked for work. She told Dr Slesenger when he examined her on 2 April 2019, that “she was not in employment, but anticipated that once her children had started full-time education, she aspired to enter the workforce, perhaps in childcare”.[29]
[29]PCB 157
38 I gave leave to Mr McGarvie to lead some evidence on the issue of pecuniary-loss consequences. She gave evidence that she had an intention to go into the workforce. She was asked “When did you plan to [go into] the workforce if you were able to?” She said “Straight after pregnancy, but I had the accident”.[30] In cross-examination she was asked: “The question I’m putting to you is this, I suggest to you that in truth you had no plan to look for work in Australia, did you? In answer she said, “After having the baby I was thinking and I like to have to work in Australia”.[31]
[30]T25, L8-9
[31]T28, L2-6
39 Firstly, I am not persuaded that the plaintiff’s condition is such that it would prevent her from working. Secondly, at its highest the plaintiff’s evidence is that after having her third baby she was thinking that she would like to have work in Australia, which of course is a much different thing to actually having a plan to seek work, or an ability to find work. Whatever pecuniary-loss consequences might flow from the accident I am not satisfied that either alone or in combination with the pain and suffering consequences, such elevates the plaintiff’s condition to “severe”. Indeed, the introduction of pecuniary-loss consequences in circumstances where there was no mention of same in any affidavit and the only history was as recorded by Dr Slesenger, must raise a very real doubt as to whether the plaintiff did have any intention of looking for work.
40 Next, I also note that the two affidavits from the plaintiff’s husband are also silent as to any suggestion that the plaintiff had any intention of thinking about or seeking paid employment. The tenor of his affidavits is that before the accident the plaintiff was the home maker and primary care giver to the children. His affidavit does not support an argument in support of pecuniary loss consequences. I have already mentioned that his affidavit is silent as to the treatment with Ms Marcus. Mr Elyas’ affidavits suffer from the same vice as the plaintiff’s affidavit, namely by painting a picture that is inconsistent with the objective evidence of the video surveillance, the opinion of Ms Marcus and the plaintiff’s oral evidence. I do not accept the evidence of Mr Elyas in his first affidavit that the accident has had a “disastrous affect”[32] upon his wife, or the evidence in his most recent affidavit that he has observed his wife to be suffering from increasing symptoms of anxiety and depression.[33]
[32] PCB 26
[33] PCB 29
41 A final word about the medical evidence.
42 I have not dealt with the medical evidence in detail. The evidence of psychiatric injury is essentially non-controversial. The plaintiff has seen psychiatrists at the request of her solicitors, namely Dr Hayman and Dr Weissman. She has also seen Dr Lewis at the request of the defendant. The psychiatrists are essentially in agreement as to the diagnosis of the plaintiff’s condition. In a report dated 2 September 2020, Dr Lewis, consultant psychiatrist, stated that his diagnosis remained unchanged from his earlier assessment, that is:
“… Ms Elyas continues to meet criteria for a Chronic Adjustment Disorder with mixed anxiety, depressive and traumatisation features.
Ms Elyas continues to meet criteria for a Somatic Symptoms Disorder (with predominant pain).”[34]
[34]DCB 28
43 Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, provided a report to the defendant. In his report of 20 October 2020 he expressed the opinion that he was not satisfied that the plaintiff had suffered any substantial significant physical organic injury and that non-organic components of her presentation were primarily driving her pain complaints.[35]
[35]DCB 38
44 I accept that the accident was distressing and frightening for the plaintiff, particularly as she was heavily pregnant. I accept that it has led to the development of a psychiatric/psychological condition as described by the treating psychologist and by medico-legal examiners. However, I do not accept that the consequences from the compensable injury are “severe”.
45 The application is dismissed.
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