Emmanuel v Transport Accident Commission
[2018] VCC 245
•13 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04020
| SHAMIRAM EMMANUEL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 March 2018 | |
DATE OF JUDGMENT: | 13 March 2018 | |
CASE MAY BE CITED AS: | Emmanuel v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 245 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – permanent Severe Behavioural Disorder in the nature of Obsessive Compulsive Disorder – pre-existing psychiatric condition – nature and extent of aggravation of condition in subject transport accident – pain and suffering and economic loss consequences.
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Crennan QC with Ms S Popova | Galbally & O’Bryan |
| For the Defendant | Mr G Lewis QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Ms Emmanuel was a passenger in a vehicle involved in a frightening head-on collision on 4 December 2011. For a period, she was trapped in the vehicle until released by Emergency Service officers.
2 Up to that point, she had suffered a range of psychological symptoms, including anxiety and depression and was treated by her general practitioner and a psychologist. As a result of the transport accident, she claims that her psychological issues became far more significant, and she developed a debilitating Obsessive Compulsive Disorder (“OCD”). As a result, she has been unable to work, and suffered a reduction and loss in a range of domestic, recreational and social activities and involvements.
3 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered a transport accident on 4 December 2011.
4 Ms Emmanuel claims to have suffered a permanent severe mental disorder in the nature of OCD, together with a Major Depressive Disorder, and symptoms of a Post-Traumatic Stress Disorder (“PTSD”). The application is thus brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
5 Ms Emmanuel was the only witness called to give evidence and be cross-examined. In addition, her affidavits, medical and psychological reports and clinical notes were tendered into evidence. I shall not refer to all of that material in the course of this Judgment but, rather, those parts of the evidence and reports which appear to me to be most relevant and on which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Ms Emmanuel is now thirty-four years of age. She lives with her family in Meadow Heights.
7 She completed her VCE Certificate in 2000. She undertook a course as a nail technician, but did not pursue that as a career. She worked in various jobs on a part or full-time basis, including as a sales assistant, and worked in a pet store.
8 Over the years, her mother had become ill and in 2011, she moved home to help care for her.
9 She developed what she described as minor depression and anxiety, and saw her general practitioner around December 2010.
10 In early 2011, she went with her mother to visit relatives in the United States and resigned her pet store job to travel for three months.
11 From about July 2011, her depression and anxiety increased, and she sought treatment from her general practitioner, Dr Daniel, and a psychologist, Leanne Jackson, whom she saw on about ten occasions.
12 In August 2011, Dr Daniel certified her as being unfit to work because of her mental state. In consultations with that practitioner in September and October 2011, the prescription of medication was discussed, but she was optimistic that her problems would improve. In October 2011, Dr Daniel prescribed an antidepressant, Luvox, but Ms Emmanuel did not fill the prescription and was managing her condition without medication. She said she still socialised and had a supportive family and friends.
13 In the course of cross-examination, Ms Emmanuel accepted she had suffered from nightmares prior to the transport accident, and difficulties with sleep. She had a long history of migraines. She said that she had suffered anxiety over a long period, and since she had been diagnosed with OCD, she accepted some aspects of her psychological state prior to the transport accident showed some symptoms consistent with that disorder, although at a level far less severe than after the accident. Such symptoms included keeping things neat and tidy.
14 Prior to the transport accident, Ms Emmanuel was treated by a psychologist, Ms Leanne Jackson, over the period from July 2011 to October 2011. The notes of that practitioner prior to the transport accident referred to problems with anxiety and being able to leave her house.[1] Ms Emmanuel complained of “feeling weird if there were a lot of people around”,[2] of problems with sleep,[3] of being “obsessive compulsive” and having to neaten things in the bathroom, clean out cupboards and the washing of her hands.[4] She reported feeling sad. Ms Jackson provided strategies to deal with anxiety, depression and sleep difficulties. There was reference to suicidal ideation.
[1]Defendant’s Court Book (“DCB”) 73
[2]DCB 74
[3]DCB 75
[4]DCB 76
15 In 2010, she moved from her parents’ house to live with a friend and this caused stress and anxiety. She travelled with her mother to the United States in March 2011 to meet family. She was intermittently sad and teary while on the trip, and at one point locked herself in a cupboard.
16 According to the clinical notes of Epping Healthcare, the general practice Ms Emmanuel attended from 2003, she consulted doctors there on occasions from 2007 complaining of depression, panic attacks and occasionally suicidal thoughts. There is reference to an attendance for agoraphobia in August 2011. In October 2011, Ms Emmanuel attended a Dr Daniel at the clinic complaining of depression, and the clinical note records:
“[L]ong psychotherapy counselling re predisposing, precipitating and perpetuating factors in depression. Discussion re medications used in depression.”[5]
[5]DCB 70
17 After her return from the United States, Ms Emmanuel was certified by Dr Daniel as unable to work, given her mental state.
The transport accident and its consequences
18 On 4 December 2011, Ms Emmanuel was a front-seat passenger in a vehicle which was struck head-on. According to the police report,[6] the driver of the other vehicle lost control and crossed the centre line. Both vehicles were extensively damaged. The police report spoke of “possible excessive speed” on the part of the other vehicle. Ms Emmanuel was trapped in the vehicle and said she could smell something burning. She said she was in a state of complete panic. She was freed from the vehicle by Emergency Services officers. She was taken to the Northern Hospital with pain in her ribs, pelvis and right ankle. She was discharged and has made a good recovery from the physical injuries.
[6]Plaintiff’s Court Book (“PCB”) 79
19 According to her affidavit, she said that since the transport accident there has been a significant deterioration in her mental state and the pre-existing anxiety, depression and panic attacks became more difficult to manage. She was unable to travel as a passenger in any vehicle for eight months, and has not been able to drive a vehicle since. She has been diagnosed by all practitioners who have treated her, and those she has consulted, as having OCD.
20 Ms Emmanuel consulted Ms Jackson again after the transport accident, it would appear in July 2012. There are various entries in her clinical notes including reference to “anxiety and panic attacks – agoraphobia. Now anxiety feels more physical (like heart being squeezed)”. Ms Emmanuel said it was “really hard to be out of the house”. Further, “Mainly feel like can’t breathe – heart gets really tight”. There is reference to her memory being bad. She attended a music certificate course, but that she was “very shaky”, and concerned about the reaction to her by other students. “If something reminds me of the accident, gets strong memories.”[7] There was reference to some improvement in anxiety.
[7]Defendant’s Court Book (“DCB”) 80
21 Ms Emmanuel was referred by Dr Daniel to Associate Professor Wong, psychiatrist, for management. There is no report from that practitioner. I was urged by Mr Lewis, for the defendant, to draw an inference that his evidence would not assist the plaintiff, and that I might rely more readily on the evidence of those practitioners who examined Ms Emmanuel on behalf of the defendant, but given his clinical notes were available to each party, I do not see the failure to tender a report from Dr Wong as a matter of any particular significance.
22 Ms Emmanuel was prescribed a range of psychological medication, including Avanza, Epilim, Zyprexa and Valium. She suffered nausea as a side effect of these medications. Professor Wong recommended psychological counselling.
23 In December 2012, Dr Daniel referred Ms Emmanuel to another psychologist, Hania Gorski. She first saw Ms Gorski in April 2013, who noted she had tried other psychologists, but found them unsatisfactory. She gave a history of the transport accident and her response of prolonged shock and feeling anxious about leaving home. She described a past mental history of mild anxiety and depression with a few panic attacks, but these symptoms did not impair her social and occupational functioning.
24 Ms Gorski assessed Ms Emmanuel as suffering PTSD and OCD. Ms Emmanuel remained under Ms Gorski’s care until December 2013. The therapy included cognitive behavioural therapy and trauma processing.
25 Ms Gorski said her treatment provided some improvement of Ms Emmanuel’s function. She said Ms Emmanuel had ceased concepts of suicide, was able to better manage her panic attacks, had less distress when exposed to stimuli related to the transport accident and less frequent nightmares. However, the symptoms, in particular of OCD, had not improved to the point where Ms Emmanuel was able to function normally. She said the chronic symptoms led to significant distress and impairment of Ms Emmanuel’s social, occupational and other areas of functioning. Ms Gorski described Ms Emmanuel’s mental health condition as “chronic and severe”.[8]
[8]PCB 30
26 At the behest of the Transport Accident Commission, Ms Emmanuel ceased treatment with Ms Gorski, and saw Dr Surya Tipirneni, psychiatrist, from April 2015. To that practitioner, Ms Emmanuel gave a history of longstanding anxiety, depression and irritability going back to eight or ten years of age. The symptoms had become worse since the transport accident, with increasing flashbacks and nightmares. Ms Emmanuel described herself before the transport accident as “an introverted person with low confidence, anxiety prone social anxiety (sic), occasional perfectionist, mood swings and impulsive”.[9] There were symptoms on presentation of OCD, including repetitive washing of her hands and cleaning away germs. There was a predominant preoccupation about dirt and fear of coming into contact with faeces. Cleaning rituals had become established, with long showers. Dr Tipirneni observed Ms Emmanuel would spend more than half a day on OCD behaviours. At that point, Ms Emmanuel was taking Alprazolam, Lexapro and Zoloft, and suffering side effects.
[9]PCB 24
27 Dr Tipirneni described a complex Psychiatric Disorder with longstanding OCD with depression with panic attacks and agoraphobia. He said that this had all been complicated by PTSD since the transport accident. Dr Tipirneni noted that Ms Emmanuel had tried a range of anti-depressant medication, including an antipsychotic mood stabiliser with only partial improvement. She thought the prognosis for improvement was guarded to poor. She said the transport accident not only triggered the OCD and worsening of her depression, but also resulted in the development of PTSD which had had a significant impact upon her.
28 When provided with the clinical notes of the psychologist, Ms Jackson, Associate Professor Wong and the reports of the psychologists, Ms Gorski and Ms Nielsen, Dr Tipirneni said that Ms Emmanuel had OCD dating back to 2007 or so, but the impression she formed was that those symptoms were under control. The OCD was aggravated by the transport accident.
29 Ms Emmanuel’s general care was transferred from Dr Daniel to Dr Dabestani of the same Epping Healthcare centre in January 2013. He noted a past history of depression and anxiety going back to 2007, with referral to a psychologist. From the middle of 2011, she was seen once a month or so at the clinic with a prescription of anti-depressants, but which were not filled. From those notes, Dr Dabestani thought Ms Emmanuel’s condition had been aggravated by the transport accident and she reported to him flashbacks, feelings of helplessness and more anxiety. He observed symptoms of OCD with worsening anxiety and lowered mood. His diagnosis was –
“‘… long-standing dysthymia with obsessive compulsive disorder in the setting of cluster B & C personality traits, with panic attacks and agoraphobia and this has been complicated by her post traumatic stress disorder since her accident of 2011’.”[10]
[10]PCB 19
30 Dr Dabestani noted a history that Ms Emmanuel rarely left the house, felt estranged from family members which had affected her capacity to function on a daily basis. She was easy to anger and had lost enjoyment of most social activities. He said she was functioning at a very basic level with poor sleep and a sense of hopelessness. She became dedicated to a ritual of obsessive behaviours. He noted that she had not been able to tolerate many of the medications.
31 In his report of 29 November 2017,[11] he noted there had been little improvement since his previous report of 2016. He said that her capacity for enjoyment of life and employment were hugely impacted by her condition. He said she was unable to work or socialise and on the rare occasions she met with friends, she felt uncomfortable and it was difficult. The OCD symptoms had worsened, as had the agoraphobia, anxiety and low mood. He said she had constant fatigue with poor sleep and a sense of hopelessness about the future. She found it difficult to sit in crowded rooms, travel or leave the house.
[11]PCB 21
32 From November 2015, Ms Emmanuel was treated by Ms Deborah Nielsen, psychologist. Ms Nielsen obtained a history of prior psychological problems, including mild symptoms of OCD. Ms Emmanuel said that she spent time, before the transport accident, cleaning her parents’ house and supporting them. There was also a history of claustrophobia and depression.
33 Ms Nielsen noted Ms Emmanuel had a love of music, and had obtained training in that area in 2013 and tried out for “XFactor” in 2015.
34 Notwithstanding the prior symptoms of OCD, Ms Emmanuel gave a history that her life had changed after the transport accident and that she wished she had died in it because of how difficult her life had become. She described flashbacks and taking care about who she drove with. She attended Ms Nielsen with gloves on, careful not to let her bare skin come into contact with other peoples’ clothing or belongings. Ms Nielsen set out in detail the symptoms Ms Emmanuel was suffering in respect of depression, trauma and OCD.[12]
[12]PCB 37-38
35 In her report of November 2017, Ms Nielsen confirmed her diagnosis of OCD, PTSD, together with a Major Depressive Disorder. She noted Ms Emmanuel had been unable to drive a car following the transport accident, and it had been sold. There were symptoms of depression and hopelessness about her future, with suicidal ideation at times. She set out details of the obsessive rituals which dominated her day.[13] Her mother prepared most of her food and she ate alone in her room. She cleaned excessively, washing out the washing machine and shower before washing her clothes or herself.
[13]PCB 39
36 As to the relationship between her condition and the transport accident, Ms Nielsen said that, while Ms Emmanuel experienced minor OCD symptoms before, and had a history of depressed mood, she was able to work and function normally and had travelled overseas for a considerable period shortly before. She noted that the symptoms of OCD had spiralled out of control and to extreme levels since the accident. She noted the Disorder had been very difficult to treat, and progress under her care had been poor. She said there was no capacity for employment and it was difficult for her to have a full social life.
37 At the present time, Ms Emmanuel takes a raft of medication, including Akamin, to treat acne caused by stress, two per day; Zoloft, an anti-depressant, 100 milligrams per day; Topamax, for migraines, four per day; Clonazepam, for Anxiety and OCD symptoms, one per day; Valium, two 5-milligram tablets per day, and Stemetil for nausea. She acknowledged that she had been taking migraine medication since before the transport accident.
38 According to her affidavits and her evidence, Ms Emmanuel suffers a vast raft of psychological symptoms related, in particular, to her OCD. She says her anxiety and depression had escalated since the transport accident, and she has very low mood. She feels helpless and useless and finds it difficult to motivate herself. The medication she takes affects her cognitive powers. The panic attacks she suffered before the accident had increased. She cut herself off from any social contact with friends and relatives, except her immediate family, and usually only when she, in accordance with her culture, was required to attend some function.
39 Ms Emmanuel has not driven since the accident, and is nervous in cars. She sits in a certain position in vehicles as a passenger. She has not been able to travel past the scene of the accident.
40 Her behaviour, in particular, in relation to cleaning, has become progressively ritualistic. She perpetually checks locks and appliances. She is obsessed with cleaning and concerned about contact with germs. She says these symptoms now dominate her life. She washed her hands many times and spends a lot of time washing in the shower. She has developed a phobia about germs and faeces. She does not wish to have physical contact with any other person. She showers with slip-on shoes and does not share her personal showering products. She avoids public transport as she may come into contact with someone. She does not use public toilets. Her parents mostly accompany her when she goes shopping and wears cotton gloves to do so. She spends much of her time in her bedroom. Her family does not understand what she is going through. She cooks regularly for her family, and somewhat anomalously, does not have difficulty handling food and with food preparation. She acknowledged that she had some symptoms of OCD prior to the transport accident, that they had become very much worse since.
41 For a period in 2012 and 2013, she became the carer for her parents and received an allowance for that. However, the condition of her father improved and her father took over her mother’s care, and from January 2017, she did not receive the carer’s allowance.
42 Ms Emmanuel has always had a passion for music. Between February and December 2012, she obtained a Certificate IV in Music Technology from Victoria University. Her father drove her there so that she could avoid public transport. She hoped to pursue this area, but has not been successful. She made a music video[14] in 2014 with some friends. Her passion for music has gradually diminished.
[14]Exhibit 2
43 She last consulted Dr Tipirneni in September 2017 and did not see his treatment as being of assistance. She has been recently referred to another psychiatrist, Dr Krapivensky. She continues to see Ms Nielsen.
44 Surveillance video of the plaintiff of August 2017 was shown in the course of cross-examination, and tendered into evidence. On one occasion, Ms Emmanuel was seen in a shopping centre sitting down eating lunch in a booth with a friend. She was not wearing gloves, and did not appear distressed. She was further seen carrying a plastic bin lid, and reaching onto a supermarket shelf for items, again without gloves. She was seen in a nail salon having her nails attended to. She appeared relaxed and talking to someone. She said she knew the nail salon workers well, that they always wore gloves, kept the instruments clean and there was no skin contact.
Consultant practitioners’ reports
45 Ms Emmanuel was examined by Dr Louise Seward, psychiatrist, in 2014 and 2017. She gave a history of giving up work in 2011 to take an overseas trip, although said at the time she was having difficulty working in the pet shop because of the odours and handling raw meat. She spoke of a history of chronic symptoms of OCD. These had become significantly aggravated in the transport accident. They had been manageable beforehand, as had her depression, which she had had since primary school. She described the onset and aggravation of a range of symptoms and said she was profoundly traumatised by the accident. She had become anxious in a car, had suffered disturbed sleep and nightmares with flashbacks of the accident. Her anxiety and depression had become worse. She was sleeping only two to three hours per night. She complained of a loss of weight. She gave a litany of OCD symptoms which had developed or been severely aggravated after the transport accident.
46 Dr Seward noted a past history of OCD and treatment for depression. She said that Ms Emmanuel had developed a PTSD since the accident and an aggravation of OCD and Major Depressive Disorder. In particular, Dr Seward observed that the pre-existing symptoms of OCD had been manageable and that she had been employed for thirteen years and had been able to travel successfully overseas. She said she had not been taking any medication prior to the transport accident. Dr Seward assessed Ms Emmanuel as being totally incapacitated for work.
47 In her second report of January 2017, Dr Seward noted there had been a significant deterioration in her condition since the previous report, with an escalation of her OCD symptoms, despite psychiatric and psychological treatment. She said there was a direct relationship between her then current condition and the transport accident. She said the prognosis was guarded and she remained totally incapacitated for work.
48 Ms Emmanuel was examined by Dr Nigel Strauss, psychiatrist, in February of this year. He received an extensive history of her pre-accident psychological difficulties, including anxiety, social phobia and depression.[15] He noted she was treated by a psychologist and her general practitioner but did not take any psychotropic medication. He said she was prone to depression from an early age and with fleeting suicidal thoughts. Ms Emmanuel said that she had always been neat, although before the transport accident, was not obsessed with cleanliness or with counting. These symptoms became severe after the transport accident.
[15]PCB 69
49 Dr Strauss received a history of the various OCD symptoms from which she has suffered. He assessed her as suffering PTSD, a Major Depressive Disorder and OCD. Dr Strauss noted the transport accident was frightening and distressing for her as a vulnerable woman. He said she had developed significant OCD symptoms after the accident, her depression had worsened to the level of a chronic major depressive illness and there were ongoing PTSD symptoms, although mild at that time. He described her psychiatric problems as “severe” and that she was totally and permanently incapacitated for any form of employment. He said:
“Many of her injuries are consistent with the stated cause, that is the car accident. Her overall psychiatric state has deteriorated markedly since the accident because of the accident.
The motor vehicle accident is significantly contributing to her total and permanent incapacity and the significant reduction in her level of social, domestic and recreational functioning.
Her quality of life is poor. Her prognosis is poor.
Her current treatment is appropriate and should continue.
She will not be able to work in the foreseeable future in my opinion.”[16]
[16]PCB 75-76
50 Ms Emmanuel was examined by Dr Peter Cotton, clinical psychologist, in October 2014. He obtained a history of a pre-existing longstanding OCD, characterised by persistent contamination type thoughts and cleaning compulsions, including hand washing thirty times a day prior to the transport accident. He said the OCD was present in primary school years. It is uncertain where Dr Cotton obtained this information from. It is contrary to the evidence of the plaintiff and not referred to by any other practitioner or clinical notes.
51 Dr Cotton concluded Ms Emmanuel was suffering OCD, agoraphobic symptoms and driving phobia. He said these were pre-existing conditions but had been aggravated in the transport accident.
52 Ms Emmanuel was examined by Associate Professor Peter Doherty, consultant psychiatrist, in February 2018. He received an extensive range of reports and clinical records of other practitioners.[17] He received a history from Ms Emmanuel about her pre-existing psychological state including that she was not taking any medication before the transport accident.
[17]DCB 11
53 She told Professor Doherty of the extensive OCD symptoms, sleep disturbance and the avoidance of driving since the accident. Ms Emmanuel spoke of her routines, skin problems, lowered mood and stress. She said she had no energy and an isolated social life. Professor Doherty said Ms Emmanuel had an extensive psychiatric history before the transport accident. He said there were problems with self-esteem and self-confidence and of depression from 2007. He said she commenced medication in October 2011.[18] Professor Doherty said that Ms Emmanuel’s mental health was deteriorating prior to the transport accident. He said:
“In my opinion, there were significant anxiety-laden symptoms in the months before the transport accident, and the most appropriate diagnostic title would have been anxiety disorder. The reported symptoms of anxiety, panic, OCD are underpinned by a problem with anxiety.”[19]
[18]While it was clear she was prescribed medication, there is no evidence to suggest that she had the prescription filled. I accept her evidence in that regard.
[19]DCB 19
54 Professor Doherty said, after the transport accident, there was “an exacerbation of anxiety and mood symptoms”. He noted that the natural history of OCD is that it tends to become chronic and hard to treat. He thought that the outcome for the future was unfavourable.
55 In terms of the transport accident, he said it was reasonable to diagnose PTSD as being related. He said her pre-existing anxiety contributed to the persistence of those symptoms. He said, however, the OCD condition had overwhelmed the generalised anxiety symptoms and the predominant focus of Ms Emmanuel’s anxiety was on cleanliness. He said:
“The transport accident increased the level of anxiety in the plaintiff. However, the disabling OCD symptoms typical of a disorder of OCD did not become evident until a few years after the transport accident. The general practitioner on 11 February 2013 wrote that obsessive compulsive symptoms are getting worse. The first diagnosis of OCD was made in 2013 by the treating psychologist and confirmed in 2015 by the treating psychiatrist. In my opinion, there is nothing more than a weak association between the current OCD condition, and the worsening of anxiety and traumatisation effects of the transport accident. I disagree with the opinion expressed by the treating psychologist, in her 12 February 2014 report that the OCD appears to be secondary to PTSD symptoms. In my opinion, there is no sound clinical or theoretical basis for that opinion.”[20]
[20]DCB 24
56 Professor Doherty said, further:
“There was the presence of anxiety symptoms in 2011. The plaintiff had made no attempt to return to employment after returning to Australia in May 2011. In my opinion, it is highly unlikely that the plaintiff would have returned to gainful employment whether the transport accident occurred. The evolution into an anxiety-laden psychiatric condition was clear prior to the transport accident and continued to develop after the transport accident.”[21]
[21]DCB 24
57 Professor Doherty considered Ms Emmanuel had not had focussed OCD treatment, and suggested a two-week inpatient program at the Melbourne Clinic.
The credibility of the Plaintiff
58 Mr Lewis said I ought to have significant reservations about the plaintiff’s credibility for the following reasons:
· Ms Emmanuel had told various practitioners that she had lost weight since the transport accident. However, the weights recorded in the clinical notes of the general practitioner recorded largely consistent weight both before and after.
· Ms Emmanuel gave inconsistent descriptions of the effect upon her sleep, in particular, because of nightmares, and did not disclose significant sleep disturbance issues prior to the transport accident.
· It was clear that Ms Emmanuel had issues with migraines before the transport accident which had not been fully set out in her affidavit.
· She admitted that she had been on at least two interstate flights which Mr Lewis said was inconsistent with her evidence that she was unable to travel on public transport.
· Ms Emmanuel claimed that she was always wearing gloves, and was uncomfortable with contact with other people, yet she was observed in the surveillance video on a number of occasions without gloves, and admitted in cross-examination to having sexual intercourse on one or several occasions.
· Generally, Mr Lewis said she had not made a full disclosure of the nature and extent of her pre-existing psychological problems, either in her affidavit, or in the histories to medical practitioners.
· The images of her depicted both on her Facebook pages, and in a music video played to the Court, were inconsistent with her claims of complete social isolation, lowered mood, and spending much of her time in her bedroom.
59 Generally, I do not accept that for these reasons Ms Emmanuel’s credibility is significantly impaired. The starting point is the manner in which she gave her evidence in the course of cross-examination. I found her a truthful, straightforward and impressive witness. In answer to an early question from me about her migraine medication, she freely admitted that she had been troubled by migraines for a long period. I found her responsive to the questions she was being asked and I did not detect any attempt to exaggerate the effect upon her of the OCD. I found her an intelligent person genuinely beleaguered by her distressing psychological state.
60 Dealing with the credibility issues, I did not find her description of loss of weight, nor prior difficulties with sleep, to be of any particular significance. There may be some inconsistencies, but they were small. Likewise, her evidence about migraines. I accept it is somewhat anomalous to, on the one hand be in a cabin of a plane on a few occasions, but yet be unable to travel on public transport. However, Ms Emmanuel explained that once established in the cabin of an aeroplane, she had little contact with other people. It is true that she said she wore gloves, including to medical appointments with practitioners. However, there was no statement in her affidavit or evidence that she never went out of the house without gloves. She did appear to handle products and shop without a glove, but this was only on two occasions. The defendant admitted that there had been twenty hours of surveillance, and only a short amount shown to the Court.
61 I do not see the matter of sexual intercourse as being of any significance. Overall, I am satisfied that Ms Emmanuel has given a reasonable description of her pre-existing psychological problems in the histories to the various practitioners. The extent of that description varied, to some practitioners less fulsome than others. However, she has freely set forth in her affidavit that she was troubled by psychological symptoms. She set out details of her treatment, both by her general practitioner and psychologist, although she never took any medication. She said that after she returned from the United States in 2011, she was not able to work because of her mental state.
62 All in all, these matters do not affect my assessment of Ms Emmanuel’s credibility. She was an honest witness, and I have little trouble accepting her evidence as to the effect upon her of her psychological issues and, in particular, the nature and extent of her symptoms since the transport accident. Ms Emmanuel’s credibility is important as, in a case such as this, both myself and the doctors who have treated and interviewed her rely to a significant extent, on her description of the role the transport accident played in her current state. I have little trouble accepting what she says in that regard.
Analysis
63 It is clear Ms Emanuel suffered a range of psychological symptoms in the years leading up to the transport accident in December 2011. Those symptoms were sufficient to warrant seeking treatment from her general practitioner and a psychologist, and for the consideration of the prescription of anti-depressant medication, although I accept Ms Emmanuel’s evidence that that prescription was never filled. The pre-existing symptoms included migraines, difficulties with sleep, significant anxiety and depression. She had panic attacks, at times felt agoraphobic, and with some suicidal ideation.
64 There did not appear, from her general practitioner or psychologist who was treating her at the time, to be any concluded diagnosis made, save generally as to anxiety and depression. Ms Emmanuel has admitted that there were symptoms over the years consistent with OCD, although I am satisfied those symptoms were nothing like as severe as she currently suffers. She now identifies them as being part of or related to OCD, now that she has come to understand the disorder.
65 Thus, this application is an aggravation case and the principles of Petkovski v Galletti[22] are relevant. I must be satisfied that, as a result of the transport accident, the aggravation of the underlying psychological disorder has, of itself, caused consequences which may be determined as “severe”. The word “severe” is a word of greater strength and significance than “serious”.
[22] [1994] 1 VR 436
66 I have little difficulty in determining that the consequences to Ms Emmanuel of the aggravation to her underlying psychological condition caused in the transport accident are “severe”.
67 I am satisfied that Ms Emmanuel currently suffers from OCD, a Major Depressive Disorder and PTSD, or at least symptoms of it. That is the view of almost all of the psychologists and psychiatrists who have treated and examined her. The emphasis, in applications of this sort is not the label which is given to the disorder, but rather the consequences which flow from it.
68 I reject the opinion of Professor Doherty. His view is that, in the twelve months or so leading up to the transport accident, Ms Emmanuel’s psychological condition was deteriorating, and significantly so. He says she had longstanding OCD and absent the transport accident, she would have gone on to suffer the same full-blown condition. The only effect of the transport accident, according to Professor Doherty, is some ongoing mild PTSD symptoms. I found Professor Doherty’s conclusions, although comprehensive, rather superficial. There was an increase in Ms Emmanuel’s psychological symptoms, it would appear over 2011. That was sufficient to go to her general practitioner on occasions and for him to refer her to a psychologist for a number of sessions. It must further be said that she was certified as unfit to work in the later part of 2011. But Professor Doherty’s opinion appears to take little account of the fact that over a period of fifteen years, Ms Emmanuel had been in constant employment and, albeit at times with some difficulty, able to maintain a social life, engage with friends, drive a motor vehicle and participate in a range of activities one would expect of a woman of her years. Professor Doherty does not appear to accept Ms Emmanuel’s own assessment of the affect upon her of the transport accident. This is an important issue in this case. In fact he concludes she was taking anti-depressant medication before the accident despite her history to him to the contrary.
69 Further, the increase in her symptoms of OCD after the transport accident is so significant that it is difficult to understand the basis upon which he says she would have come to the same level of symptoms in any event. I prefer the opinions of the various other practitioners, in particular, Dr Strauss, whose recent report is comprehensive, and takes account of all of the relevant pre-transport accident material. I prefer Dr Strauss’ assessment of the effect of the transport accident as “frightening and distressing to her as a vulnerable woman ... ”.
70 The treating general practitioner, Dr Dabestani, did not treat Ms Emmanuel until 2013, but had access to the clinical notes of the practice over the previous years. Dr Tipirneni treated Ms Emmanuel over a considerable period and had access to the clinical notes of other practitioners. To the other treating practitioners, Ms Emmanuel did disclose her previous history. I accept the assessments of Ms Gorski and Ms Nielsen, the treating psychologists. I found the reports of Dr Seward comprehensive and persuasive. All of those practitioners talk of the significance of the aggravation of Ms Emmanuel’s symptoms consequent upon the transport accident.
71 I accept the extent of the aggravation as “severe” for the following reasons:
(a) Since the transport accident, Ms Emmanuel, for the first time, has been prescribed and taken a range of powerful anti-depressant, antipsychotic, and relaxant medications, and in significant doses. The prescription of those medications commenced a relatively short time after the transport accident. She has remained on this cocktail of drugs through to the present time, and it is likely to continue. She has suffered significant side-effects as a result;
(b) The nature and extent of her treatment has very substantially changed. For the first time, she was referred to a psychiatrist and has been under the care of a psychiatrist at one time or another since the transport accident. She has also been under the care of a number of psychologists, including through to the present time;
(c) I accept her evidence, without reservation, that over the years since the transport accident, the symptoms of OCD have developed, or been aggravated to the point where they now dominate her life. Her cleansing rituals and obsessions of one sort or another are so comprehensive and so invasive, that she has little time or energy to pursue any of the normal activities one would expect of a woman of her age. I accept she is deeply disabled by these symptoms;
(d) Although in the twelve months or so before the transport accident, she was not working, I am satisfied that the reason she left her last employment was to travel overseas with her mother. I accept that her symptoms were such towards the end of 2011 that she was certified as being unfit for work, but the reality was that she had been working for fifteen years. It was not until after the transport accident that her symptoms became such as to render her totally and permanently incapacitated for any form of employment;
(e) I accept her evidence that since the transport accident, she has not driven a car. I further accept that she is nervous and panicky when driving with another driver.
72 The change in her life since the transport accident has been so dramatic and disabling that she leads an isolated, helpless and sad life. I am satisfied that this has been contributed to in no insignificant manner by the transport accident.
73 I shall grant her application and make consequent orders.
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