Ersunar v Transport Accident Commission
[2014] VCC 366
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03102
| YURDAGUL ERSUNAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26 and 26 March 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | Ersunar v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 366 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport Accident – serious injury – consequences of injury – whether the consequences of the plaintiff’s organic or non-organic injuries were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Ms R Annesley SC with Ms B Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On or about 3 May 2009, Ms Yurdagul Ersunar was a passenger in a motor vehicle involved in a transport accident (“the collision”). She alleges that she suffered multiple injuries as a consequence of the collision.
2 She seeks the leave of this Court to issue a proceeding to recover damages in respect of those injuries.
3 Her right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Ms Ersunar must satisfy the Court that she has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act (insofar as is relevant to this application) as:
(a) serious long-term impairment or loss of a body function; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.
5 At the commencement of the hearing, Senior Counsel for Ms Ersunar advised the Court that insofar as her injuries fell under part (a) of the definition, it was alleged that she had suffered a fractured sternum and an aggravation of degenerative changes to her neck that now manifested as a Chronic Pain Syndrome with an organic base.
6 With regard to part (c) of the definition, Ms Ersunar alleges that she suffered from Post-Traumatic Stress Disorder, an aggravation of a depressive condition, and a specific phobia concerning riding in motor vehicles.
7 In order to succeed in her application, Ms Ersunar must satisfy the Court that the consequences of one or more of the physical and/or non-physical injuries relied upon are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering (although here no allegation of pecuniary loss is made);
(c)the question to be asked is whether the consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
8 Where the physical injury for which compensation is claimed is an aggravation of a prior injury, that aggravation or additional impairment must itself involve serious and permanent impairment or loss of body function. The pain and suffering consequences of aggravation must be at least very considerable. The applicant must establish what injury was caused by the collision. An analysis must be made of the extent of the impairment of the body function before and after the relevant injury.[3]
[3]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraph [11]
9 Likewise, in an application involving part (c) of the definition of “serious injury”, an analysis of the before and after consequences of the condition must be made. The additional elements of the disturbance or disorder must be severe and permanent.
10 Ms Ersunar alleges that the consequences of her injuries satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so.
11 For the reasons that follow I am not satisfied that she has suffered a serious injury as that term is defined in paragraphs (a) or (c), as a consequence of the collision.
Background
12 Ms Ersunar is aged sixty-three. She was born in Turkey and came to Australia in 1977 when aged about twenty-seven.
13 In about 1979, she suffered an injury to her low back in the course of her employment. She has not worked in the thirty five years since.
14 In about 1985, she applied for and received a Disability Pension. She has been in receipt of that pension for nearly thirty years. As I understand the evidence, that pension was granted on the basis of her low-back injury and depression associated with it.
15 Ms Ersunar has had a difficult family life since her arrival in Australia. She has been married twice. Both marriages failed. She has four children from the two marriages. Her first husband was an alcoholic and left her. Her second husband would not accept the children from the first marriage and left her in about 2001.
16 Her eldest son was diagnosed some twenty years ago with schizophrenia and still suffers from that condition. His marriage broke down and he has lived from time to time with Ms Ersunar. He has used illicit drugs.
17 Her second son has had a heroin addiction for more than fifteen years. He has spent time in prison as a consequence. He is unable to look after his affairs and Ms Ersunar states that she is his guardian. No documents confirming her appointment as his guardian were tendered.
18 Her third son, from her second marriage, was diagnosed with a form of cancer in 2013.
19 Her daughter’s marriage also failed and for a time her daughter resided in a women’s refuge.
20 On any view, her children have been the cause of considerable stress and worry over many years.
Pre- collision issues
21 I find that Ms Ersunar has suffered from debilitating low-back pain from 1979 until the present. Although her initial evidence was that her low-back pain was worse after the collision, she later conceded that that condition had not been affected by it.[4] I am not satisfied that her longstanding low-back pain was exacerbated in the collision.
[4]Transcript (“T”) 129
22 Ms Ersunar suffered from neck pain, headaches and depression well prior to May 2009. She made complaints of such symptoms to numerous doctors – Dr Marazita in March 1987;[5] Dr Strang in March 1987;[6] Dr Babacan in May 1992;[7] Dr McCartney in January 1993;[8] Dr Findeisen in May 1994;[9] Dr Enten in March 2001 and on a number occasions in September 2002, July 2003, June 2006, March 2007, November 2007, March 2008; January 2009[10] and Dr Petkovic in June 2005.[11]
[5]Defendant’s Court Book (“DCB”) 160-161
[6]DCB 149-152
[7]DCB 123
[8]DCB 121
[9]DCB 132
[10]DCB 27-28
[11]DCB 80
23 In July 2002, she was seen in the Emergency Department of the Sandringham Hospital with complaints of neck and upper back pain.[12]
[12]DCB 95A-C
24 On 28 October 2002, Dr Enten had provided a letter “To Whom It May Concern” stating that –
“Mrs Yurdagul Ersunar suffers from aches and pains as well as from a depressive illness. She would benefit from the help her daughter in law Fatama Allaoui could provide when she arrives to the country.”[13]
[13]DCB 27
25 Although Ms Ersunar maintained in evidence[14] that she had not seen the letter and that it was untrue that, at that time, she required help from anyone, I accept that the letter was written by the doctor at her request and that it reflected his views at that time.
[14]T85
26 I find that for more than twenty years before the collision, Ms Ersunar had suffered from regular neck pain and, on occasions, upper back pain.
27 In addition, it is fair to say Ms Ersunar complained to doctors of a wide range of symptoms of pain affecting numerous other parts of her body. Notwithstanding these complaints, no investigations disclosed any obvious cause for them.
28 In the lead up to this hearing, Ms Ersunar has been examined by a number of medical practitioners. Each appears to have asked her about injuries or physical problems experienced by her before the collision.
29 In September 2010, Dr Flanc obtained a history from her (through a Turkish interpreter) that she had had no pain in her neck prior to the collision.[15]
[15]Plaintiff’s Court Book (“PCB”) 116
30 In February 2013, Mr Kossmann obtained a history of only a fractured arm many years before.[16] That past history was repeated to him in November 2013.[17]
[16]PCB 154
[17]PCB 160
31 In March 2014, Dr Blombery obtained a past history only of high blood pressure and back pain dating back to 1983.[18]
[18]PCB 171
32 In January 2012, Dr Kostos was told only of prior low-back pain. Ms Ersunar denied having any other musculoskeletal complaints.[19]
[19]DCB 3
33 In May 2013, Mr Simm obtained a history of prior injuries to her low back, left knee and left wrist but none concerning her neck.[20]
[20]DCB 11
34 In May 2013, Mr Fraser obtained a history of prior low-back pain but none regarding her neck.[21]
[21]DCB 17
35 Insofar as doctors’ opinions concerning the contribution of the collision to her symptoms of neck pain are based upon a history of Ms Ersunar having had no neck symptoms prior to the collision, I find that such opinions are based upon an incorrect history.
36 Ms Ersunar alleges that prior to the collision, she lead a happy and active lifestyle. Having examined numerous medical and other records relating to the period from the mid 1980s until May 2009, I do not accept that this was the case.
37 In 1992, Dr Sari (a Turkish doctor) obtained a history form Ms Ersunar that she had suffered from anxiety for the previous seven to eight years.[22]
[22]DCB 133
38 The clinical notes of three general practitioners who have treated Ms Ersunar in the years leading up to 2009 were tendered.
39 Between 2000 and 2003, Ms Ersunar was seen on many occasions by Dr Enten (Southland Medical Centre) for depression and was prescribed anti-depressive medication (Effexor). The doctor’s notes contain a number of references to her unhappiness and her problems with her children.
40 From mid 2005 to November 2007, Ms Ersunar attended upon Dr de Jong as her general practitioner. Her clinical notes contain numerous references to Ms Ersunar being depressed, having tension headaches and being stressed out.[23] At various times she was prescribed the anti-depressants, Effexor and Zoloft.
[23]DCB 67 – 68
41 In 2006, Ms Ersunar attended upon a team of practitioners at Southern Health, including physiotherapists and social workers. On several occasions she was noted to be stressed out by family issues and a lack of sleep as a consequence of stress.[24]
[24]DCB 88 - 92
42 From December 2007 until the present, her general practitioner has been Dr Selleck at the Medical One Clinic. Soon after commencing to treat her, Dr Selleck recorded complaints of widespread muscular pain. She continued to be upset about her sons and sought help concerning family issues.[25] Notwithstanding, between December 2007 and May 2009, she does not appear to have been prescribed anti-depressant medication.
[25]DCB 60 - 64
43 On the whole of the evidence before me, I find that from about the mid 1980s, Ms Ersunar has suffered from persisting depression and anxiety. She has seen a number of doctors in relation to those conditions and has been treated from time to time with anti-depressant medication.[26]
[26]Department of Human Services’ notes referring to the opinion of Dr Stella Kwong, psychiatrist, in April 1986 (DCB 131) and her report of 23 December 1986; Dr David Sime’s report of 2 March 1987 (DCB 153); report of Dr M Marazita of 3 March 1987 (DCB 160); report of a Turkish doctor, Dr C Babacan, dated 28 May 1992 (DCB 124); her complaints of psychological disturbance to Dr P McCartney in January 1993 (DCB 121); diagnosis of depression by Dr M Balint of 13 September 1994 (DCB 137); letters of Dr P Enten of 28 October 2002 (DCB 27) and 24 September 2003 ( DCB 28); letter from Dr M Muhlmann, cardiologist, of 28 October 2003 (DCB 28A)
Aftermath of the collision
44 Following the transport accident of 3 May 2009, Ms Ersunar was taken to Dandenong Hospital, where she remained for three days. She complained of chest pain. An initial x-ray showed no fracture of the sternum.[27] However, a later CT scan of the chest was reported as showing a healing, undisplaced fracture of the sternum.[28]
[27]PCB 68
[28]PCB 71
45 Later, in May 2009, Ms Ersunar travelled to Turkey on holiday. This trip had been arranged before the collision. She returned to Melbourne towards the end of June 2009. She made no mention of that journey in either of her affidavits. Evidence of it emerged only in cross-examination.[29]
[29]T111
Diagnosis of injury
46 I accept that, in the collision, Ms Ersunar suffered an undisplaced fracture of her sternum.
47 With regard to Ms Ersunar’s cervical spine, a number of radiological investigations were conducted:
(a) On 3 May 2009, the day of the collision, a plain x-ray disclosed no abnormality;
(b) On 14 December 2009, a CT scan showed mild degenerative changes at a number of levels with no neural compression;
(c) In March 2012, an MRI scan showed multi-level disc desiccation. No disc lesion or neural abnormality was reported;
(d) In January 2014, a bone scan did not disclose any abnormality with her cervical spine.
48 In July 2011, Dr Selleck reported that Ms Ersunar was suffering from post-traumatic chronic pain and “post-traumatic distressed syndrome”.[30] The latter term is one with which I am not familiar. The evidence did not include any explanation of it. In an undated report apparently written in 2014, Dr Selleck stated that Ms Ersunar had chronic pain in the chest, particularly around the sternum, neck and right shoulder. She considered that her “background musculoskeletal problems” were aggravated by the sternal fracture. It is not clear as to precisely what background problems she was referring. In any event, no other doctor suggested that the fracture of the sternum had contributed to any spinal symptoms or to any other specific injury.
[30]PCB 56
49 Mr Flanc, a general surgeon, saw Ms Ersunar in September 2010, June 2011, April 2013 and December 2013. Initially he was told by her that she had had no neck pain prior to the collision. This history was not corrected in either the second or third examinations. Prior to his final examination, Ms Ersunar’s solicitors provided Mr Flanc with “a very extensive file of medical reports, clinical notes and other information”.[31] These were not identified. There is no reference in his report of him having made any further enquiries of her concerning the nature of her earlier cervical symptoms. Nevertheless, he opined that the collision had “severely aggravated” her neck condition.[32] It is unclear how he came to the conclusion that there had been an aggravation or as to the extent of it. He thought the tenderness of her sternum was probably not of an organic nature.
[31]PCB 138
[32]PCB 143
50 Mr Kossmann, an orthopaedic surgeon, saw Ms Ersunar in February and November 2013. He considered she had “chronic pain issues in her cervical spine” and “chronic pain issues upper extremities”.[33] He had been given no history of prior cervical symptoms.
[33]PCB 156, 163
51 Likewise, Dr Blombery initially obtained no history of prior cervical symptoms. He considered that the ongoing chest pain of which she complained was caused by a non-specific pain syndrome with sensitisation of pain nerve pathways. This diagnosis was made because there was “no other obvious reason for the ongoing pain …”.[34]
[34]PCB 172
52 Dr Blombery further considered that previously “asymptomatic degenerative changes” in her neck had been rendered symptomatic by the collision also with a component of pain sensitisation. Later, when Ms Ersunar’s solicitors advised Dr Blombery of pre-collision complaints of neck pain, Dr Blombery perused reports of Dr Sime, Dr Strang, Dr Marazita and Dr Balint and reached the conclusion that Ms Ersunar’s neck pain had essentially resolved prior to the collision.[35]
[35]PCB 174-5
53 In February 2014, Dr Robert Gassin, a musculoskeletal and pain physician, reported that Ms Ersunar suffered from chronic widespread musculoskeletal pain, at least some of which arose from her right sternoclavicular joint and mid-thoracic spine. He thought the most likely source of pain was a thoracic disc. There was no radiological evidence of damage or abnormality of any disc. No other doctor shared his views.
54 In January 2012, Dr Kostos, rheumatologist, considered that there was no evidence of any injury to Ms Ersunar save for the fracture to her sternum. He considered she had a Chronic Pain Syndrome.
55 In May 2013, Mr Simm, orthopaedic surgeon, examined Ms Ersunar. She denied any previous neck symptoms. He considered she had features of a Chronic Pain Syndrome. He also noted that protracted cervical pain after a motor vehicle accident is a common clinical situation. He could not establish a clinical diagnosis for her shoulder pain.
56 In May 2013, Mr Fraser, rheumatologist, considered that, in addition to the fracture of the sternum, Ms Ersunar had most likely sustained soft-tissue injuries to her neck, chest and right shoulder in the collision but that such injuries had long since resolved. He thought she was exaggerating her symptoms and signs.
57 The opinion of any doctor regarding the cause of physical symptoms is likely to depend to a large extent upon the history given to them. This is especially so in relation to opinions regarding causation of symptoms or the extent to which a particular event has caused injury or aggravated a prior injury.
58 I do not accept the views of Dr Blombery concerning Ms Ersunar’s sternum pain or neck pain. Effectively, Dr Blombery was stating that he could find no organic explanation for her symptoms and therefore it must be pain sensitisation. No other doctor came to such a diagnosis. His views were in contrast to those of Dr Kostos, who considered she had markedly exaggerated tenderness to light touch on her sternum, even when her clothing was touched. Similar findings on examination by Mr Fraser led him to conclude that she was exaggerating her symptoms.[36] Dr Blombery’s views concerning the apparent resolution of Ms Ersunar’s neck problems before the collision do not, in my opinion, have due regard to Dr De Jong’s request for a CT scan of her cervical spine in March 2007 with advice to the radiologist that she was complaining of cervical pain with radiation down the left hand, or to Dr Selleck’s request in January 2009 for a CT scan of Ms Ersunar’s cervical and thoracic spine.[37] I consider that those requests would not have been made by those doctors in the absence of complaints by her of significant neck pain at those times.
[36]DCB 19
[37]PCB 82.2; 82.5
59 The fact that those scans showed nothing of significance that would explain neck pain does not, in my view, advance her claim. Radiological examinations since the collision similarly do not explain the symptoms currently alleged by her.
60 On the basis of the evidence before me, I think it likely that Ms Ersunar suffered an undisplaced fracture of her sternum. It has healed. Further, I am satisfied that she suffered a soft-tissue injury to her neck and shoulder. Her pre-existing, symptomatic, degenerative changes to her cervical spine were aggravated to a degree.
61 Insofar as there was reference to Ms Ersunar suffering from a Chronic Pain Syndrome, I am not satisfied this is an organic condition. Rather, I consider, at least in her case, that it is largely a psychological condition.
62 With regard to non-organic symptoms, Ms Ersunar was referred by Dr Selleck to a psychologist, Ms Semra Durmaz, in early 2010. Her clinical notes were tendered along with three reports. She considered that Ms Ersunar fulfilled the criteria for an Adjustment Disorder with Mixed Anxiety and Depression and also a Post-Traumatic Stress Disorder. She considered that her anxiety and depressive symptoms had been exacerbated after the collision.
63 At no time did Dr Selleck or Ms Durmaz recommend a referral to a treating psychiatrist. However, Ms Ersunar was seen on a medico-legal basis by psychiatrists, Dr Kornan and Dr Entwistle.
64 Dr Kornan saw Ms Ersunar on four occasions between August 2010 and November 2013 at the request of her solicitors. He considered that she has suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood, features of traumatisation (but not a full Post-Traumatic Stress Syndrome), and a specific anxiety phobia concerning riding in cars as a passenger.
65 In July 2013, Dr Entwisle examined Ms Ersunar at the request of the defendant. He concluded that she had developed symptoms of a chronic pain condition which was likely to have pre-existed the collision. He thought there had been an aggravation of her previous medical and psychological matters. He did not consider she had a Post-Traumatic Stress Disorder. His diagnosis was of Chronic Pain Syndrome and a Chronic Adjustment Disorder with Depressed and Anxious Mood. These conditions, he thought, had been aggravated by the collision.
66 Although a number of other doctors referred to her suffering from a Chronic Pain Syndrome, it is my view that these references were, in the main, made in the context of opinions that there was no physical or organic explanation for the wide range of symptoms complained of by her. Such wide ranging symptoms had been noted well before the collision.
67 Although it is clear that Ms Ersunar suffered pre-collision depression and anxiety, I consider it likely that that condition was aggravated as a result of the collision to a degree.
Consequences of injury
68 Senior Counsel for Ms Ersunar conceded during his opening address that the injury to both her sternum and her neck would not, on their own, fulfil the relevant test.[38] The test to which he was referring must have been whether the consequences of either of those injuries could, when judged by comparison with other cases in the range of possible impairments or losses, fairly be described as more than significant or marked and at least very considerable. That concession was sensibly made.
[38]T8
69 On all of the evidence before me, Ms Ersunar has not satisfied me that the physical injuries from which I have found she suffered in the collision have produced physical consequences which satisfy that test.
70 Likewise, I am not satisfied that she has established that any pre-existing physical injury from which she suffered has been exacerbated to the extent that such exacerbation itself would satisfy the “at least very considerable” test.
71 The psychological or psychiatric consequences of a physical injury are only to be taken into account for the purposes of paragraph (c) of the definition not for the purposes of paragraph (a) of that definition.[39]
[39]Section 134AB(38)(h)
72 It remains to be considered as to whether Ms Ersunar has a permanent severe mental or a permanent severe behavioural disturbance or disorder arising out of the collision, the pain and suffering consequences of which are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than “serious” to the extent of being “severe”.[40] The onus lies on Ms Ersunar to establish that such is the case.
[40]Section 134AB(38)(d)
73 An attempt by an applicant to satisfy the before and after test referred to in Petkovski and De Agostino is inevitably made more difficult where the applicant fails to give a frank and full account of her pre-accident symptoms and difficulties. Without reliable evidence concerning the full extent of prior problems, a meaningful before and after comparison can rarely be made.
74 Insofar as the claim is made in respect of a Chronic Pain Syndrome, I am not satisfied that the level of Ms Ersunar’s alleged symptoms of pain are significantly greater than the wide range of symptoms experienced by her for many years before the collision.
75 I accept that she may have suffered an aggravation of her anxiety, especially in travelling in motor vehicles. However, I note that in the thirty-two years since she arrived in Australia, she has never held a driver’s licence. Whether this was a result of some earlier lack of confidence associated with cars is unclear. I consider that I am able to infer that travel by car was not a very important part of her life. I note that by May 2013, she was able to visit her son at the Port Phillip Prison on a weekly basis, a considerable distance from her home in Hampton.[41] I also note the history obtained by Dr Entwisle that she could travel by car and taxi although she could be nervous when doing so.[42] He further noted she had no panic attacks and no dreams about the collision.[43]
[41]PCB 101
[42]DCB 24
[43]T85; DCB 27
76 There were a number of aspects of Ms Ersunar’s evidence that caused me to conclude that, in a number of instances, her evidence was not reliable:
(a) I consider that she was, generally, an argumentative witness who, on many occasions, was reluctant to provide what seemed to be simple answers to questions put her when she perceived that such answers might not advance her case. An example was her reluctance to answer a question as to the current whereabouts of her daughter.[44] Further, her evidence concerning her lack of knowledge of Dr Enten’s letter of 28 October 2002 was not, in my opinion, credible.
[44]T131
(b) Her evidence that she was active and physically capable of performing her household duties before the collision is not consistent with her application to the Bayside City Council for home help in 2006.[45]
[45]DCB 169
(c) Contrary to her evidence, she told Dr Entwisle that she had no panic attacks nor dreams concerning the collision.[46]
[46]DCB 24
(d) The history she gave to Ms Durmaz that she had been unable to drive since the accident due to a high level of anxiety and fear was misleading. She had never had a driver’s licence.
(e) Her evidence that prior to the collision she was happy and active belies the fact that she had been in receipt of a Disability Support Pension for more than thirty years before, and had been quite unable to perform any work throughout that period.
(f) In her affidavit sworn in February 2014, she stated that she was unable to cook meals and that this was something she used to love doing before the collision. In her oral evidence, she stated that she did in fact still do the cooking for herself and her second son.[47]
[47]T128
(g) She did, on occasions, demonstrate that she believed that some of her symptoms were consequences of the collision, even when that was inherently unlikely. For instance, she said that an injection into her sternum had led to vaginal bleeding.[48] There was no medical evidence linking the two events.
[48]DCB 6
(h) Despite the level of symptoms of which she complained, she had been able to travel to Turkey in May 2009, in October 2011, and again in 2013. Her two affidavits contained no reference to the first two trips, notwithstanding that her first affidavit was sworn in November 2011, barely a month after the second of those trips to Turkey. In her second affidavit, she made reference only to the third trip.
(i) Her failure to mention the full extent of her overseas trips following the accident were never adequately explained by her.
77 I consider that the evidence discloses that Ms Ersunar had a troubled life for many years prior to May 2009 and, in many respects, continues to have one. I note the comment of Dr Kornan in his report of May 2013:
“There is an aggravation to her psychiatric state from the motor vehicle accident, but, as time goes on, unrelated matters within the family are becoming more marked.”[49]
[49]PCB 105
78 I note that there was no supporting evidence from others concerning changes in her lifestyle after the collision. Whilst the health of her sons might have constituted a reason why they could not have sworn an affidavit in support, there was no specific evidence to this effect. There was no evidence as to why her daughter could not have provided supporting evidence and I consider that I am entitled to draw the inference that her evidence would not have advanced Ms Ersunar’s case.
79 I accept that the collision and the physical injuries suffered by her in it would probably have exacerbated her pre-existing depression and anxiety to an extent and may have caused a degree of traumatisation as described by Dr Kornan. However, I am not satisfied that the consequences of those exacerbations could fairly be described as permanent or more than serious to the extent of being severe.
Conclusion
80 For the reasons expressed above, I am not satisfied that Ms Ersunar has suffered a “serious injury” as that term is defined.
81 Accordingly, her application is dismissed.
82 I shall hear the parties in with regard to consequential orders sought.
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