Etem v Transport Accident Commission
[2018] VCC 933
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04685
| LEJLA ETEM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May and 1 June 2018 | |
DATE OF JUDGMENT: | 29 June 2018 | |
CASE MAY BE CITED AS: | Etem v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 933 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychiatric injury – chronic Post-Traumatic Stress Disorder, Chronic Major Depression with anxious features – Somatic Symptom Disorder with predominant pain persistent and of moderate severity – whether the consequences are “severe” for the plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Ansett Australia Ltd v Taylor [2006] VSCA 171; Transport Accident Commission v Florrimell [2013] VSCA 247
Judgment: Application for serious injury certification in respect of psychiatric injury as the result of a transport accident on 27 July 2007 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Hayes QC with Mr D Dealehr | Simon Legal |
| For the Defendant | Mr W R Middleton QC with Mr P Gates | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 1 October 2015. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of a transport accident which occurred on 27 July 2007 (“the said date”).
2 Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied that the injury suffered by the plaintiff is a “serious injury”. In this application, the relevant definition of “serious injury” relied upon by the plaintiff is under s93(17)(c):
“Severe long-term mental or severe long-term behavioural disturbance or disorder.”
3 At the commencement of this application, Mr Hayes, on behalf of the plaintiff, abandoned an application made by the plaintiff for serious injury certification in respect of physical injuries that she received in the transport accident on the said date. The plaintiff’s application for serious injury in this proceeding is based on a serious long-term severe mental or behavioural disturbance or disorder.
4 A serious injury under s93(17)(c) requires the level of permanence to be “severe”.[1] In forming a judgment as to whether the consequences and the injury are “serious”, the question to be asked is: Can the injury, when judged by a comparison with other cases in a range of possible impairments, be fairly described as “at least very considerable” and certainly “more than significant or marked?”[2]
[1]Mobilio v Balliotis [1998] 3 VR 833
[2]Humphries & Anor v Poljak [1992] 2 VR 129
5 The plaintiff swore and relied upon a total of three affidavits dated 3 January 2011, 29 July 2016 and 25 May 2018. The plaintiff gave evidence and was cross-examined in this application. The plaintiff was the only witness to give evidence in this case. In the course of the plaintiff giving evidence in this proceeding, she became very distressed, which necessitated a brief adjournment. The plaintiff’s evidence was then resumed and completed.
6 In addition to the evidence of the plaintiff, both parties tendered documents, including medical reports and other materials in support of the application. I have read all the tendered medical reports.
7 The evidence tendered in this proceeding was as follows.
· The plaintiff tendered the following documents:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 5 to 86, pages 120 to 141, pages 144 to 146B, pages 147 to 153, pages 157 to 159 and pages 171 to 196.
§Exhibit “B”, the Defendant’s Court Book (“DCB”), pages 1 to 36 and pages 43 to 50.
· The defendant tendered the following documentation:
§Exhibit 1, the Defendant’s Court Book, pages 37 to 42 and 51 to 52
§Exhibit 2, a photocopy of the plaintiff’s passport
§Exhibit 3, Year 8 school records for Semester 1.
8 At the commencement of the proceeding, Mr Hayes, for the plaintiff, sought a subpoena to obtain the notes of Dr Timothy Entwisle, psychiatrist. Dr Entwisle had examined the plaintiff on behalf of the defendant and had prepared three reports dated 30 August 2016, 16 November 2017 and 7 December 2017. The subpoenaed documents were returned to the Court on the second day of the hearing, 1June 2018. Mr Hayes indicated that he wished to cross-examine Dr Entwisle. Ultimately, there was no application to cross-examine Dr Entwisle and consequently that did not occur.
9 In the course of the proceeding, the following matters were identified as being the main issues in this case:
(i)the plaintiff did not suffer from a severe psychiatric or psychological condition. The defendant relied on the fact that the plaintiff had not been receiving any psychological support since July 2011. In short, no treatment speaks for itself;
(ii)the plaintiff’s current psychiatric condition was a result of inherent factors operating within her family, and that the family dynamics in which she lived explained her current regression and return to psychiatric symptoms;
(iii)the credibility of the plaintiff was in question; and
(iv)the fact that the Transport Accident Commission had paid for treatment by a psychologist, and her current medication and general practitioner’s treatment, is not an admission of acceptance of liability by the Transport Accident Commission (Ansett Australia Ltd v Taylor[3] and Transport Accident Commission v Florrimell).[4]
[3][2006] VSCA 171
[4][2013] VSCA 247
The Plaintiff’s background
10 The plaintiff was born in 1993 and is now twenty-four years old. The plaintiff is a married woman and has one child, who was born in 2016. Her husband, child and herself live in her family’s home with her parents and all of her siblings.
11 At the age of thirteen, the plaintiff was involved in the transport accident on the said date. Subsequent to the accident, the plaintiff continued with her education and completed Year 12 in 2011.[5] The plaintiff obtained an ATAR score of 83.9 in her final year. In respect of three of the subjects in her VCE year, the plaintiff was given a Derived Examination Score (“DES”) for three of the subjects.
[5]PCB 137
12 Between the years of 2012 and 2014, the plaintiff completed a Bachelor of Arts (Criminal Justice Administration) with distinction.[6] The plaintiff then had employment on a student-trial basis at the Supreme Court of Victoria between July 2014 and September 2014. The plaintiff returned as an employee of the Supreme Court of Victoria on 17 November 2014, and continued employment there until 30 June 2015.
[6]DCB 45-46
13 In July 2015, the plaintiff travelled to Turkey.[7] The plaintiff was married in Turkey and gave birth to her son in July 2016. The plaintiff has not worked since.
[7]Transcript (“T”) 70
The transport accident
14 The transport accident occurred on the said date. The plaintiff was a front-seat passenger in a van driven by her mother. In the van with them were four other siblings at the time of the collision. The plaintiff recalls the headlights of the other vehicle involved in the accident coming from the left, and then the collision occurred. She recalls the van spinning around. The plaintiff saw one of her sisters ejected from the vehicle onto the roadway.
15 The plaintiff remembers both the police and ambulance officers arriving at the scene of the accident. The accident was clearly a very frightening and significant event in the life of the plaintiff.[8]
[8]PCB 46
16 The plaintiff was taken to the Royal Children’s Hospital by ambulance. The plaintiff was discharged home from the Royal Children’s Hospital on 29 July 2007.[9]
[9]PCB 22
17 In a report dated 22 November 2007, Dr George Chalkiadis, a consultant anaesthetist and pain medicine specialist, stated that the plaintiff was suffering from Post-Traumatic Stress Disorder symptoms and was significantly depressed. Dr Chalkiadis opined that the plaintiff should be treated by a psychiatrist and psychologist at that time.[10]
[10]PCB 23
Treatment of the Plaintiff as a result of the transport accident
18 The plaintiff was initially treated for physical injuries arising from the transport accident. These treatments are not relevant or part of the claim made by the plaintiff now for serious injury on the basis of psychiatric injury.
19 The plaintiff was initially treated by Dr Roy Nallaratnam, consultant psychiatrist, on 3 August 2007.[11] Dr Nallaratnam remained the plaintiff’s treating psychiatrist from that time until his retirement in 2017. In the time under treatment by Dr Nallaratnam, the plaintiff was prescribed antidepressants and anti-anxiety medications. She also received supportive therapy from him.
[11]PCB 57
20 The plaintiff was also treated by psychologist, Carley McGauran, between 5 September 2007 and 23 October 2007.[12]
[12]PCB 21 and 181
21 In November 2007, the plaintiff changed her psychological treatment to Ms Emel Ahmet, on the recommendation of the plaintiff’s general practitioner, Dr Mohan Doss. Ms Ahmet was treating the plaintiff for severe symptoms of Post-Traumatic Stress Disorder and Major Depression. Ms Ahmet continued to treat the plaintiff until 19 July 2011.[13]
[13]PCB 177–181 and 80
22 The plaintiff was initially sent to psychiatrist, Dr Alan Gallogly, for medico-legal reporting in June 2016. Dr Gallogly became the plaintiff’s treating psychiatrist after the retirement of Dr Nallaratnam. Dr Gallogly has been treating the plaintiff for symptoms of Post-Traumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder over the period of his treatment. The plaintiff’s current combination of medications is the antidepressant, Pristiq, and a sedative, Diazepam. These are prescribed for her by Dr Gallogly.
23 In his report dated 17 October 2017, Dr Gallogly stated that he had prescribed the plaintiff a combination of Pristiq and Mirtazapine, which is described as “Californian Rocket Fuel”. The combination of drugs was 30 milligrams of Mirtazapine and 150 milligrams of Pristiq. The plaintiff was also prescribed Diazepam. By March 2018, Dr Gallogly had changed the plaintiff’s medication regime to the antidepressant, Pristiq, and the sedative, Diazepam, alone.
Medical opinions
The Plaintiff’s doctors
General practitioners, Doveton Medical Clinic
24 The plaintiff has attended at the Doveton Medical Clinic from the time of the transport accident until the time of this hearing. Her initial general practitioner was Dr Mohan Doss. Dr Doss prepared four reports dated 30 June 2008, 17 May 2010, 16 April 2013 and 25 October 2013. In his first report dated 30 June 2008, Dr Doss diagnosed the plaintiff as suffering from Severe Depression, Anxiety, panic attacks and severe Post-Traumatic Stress Disorder.[14] Dr Doss confirmed that the plaintiff was, at that time, receiving treatment from Dr Nallaratnam, psychiatrist, Ms Emel Ahmet, psychologist, and a pain management clinic at the Royal Children’s Hospital.[15]
[14]PCB 59
[15]PCB 59
25 In his report dated 17 May 2010, Dr Doss stated as follows:
“… Lejla is the most affected psychologically from the accident. She is attending recurring Cognitive Therapy, Counselling from her treating psychologist. Her psychiatrist is treating her for depression and anxiety. At present I am not sure how long it is going to be there (P.T.S.D).”[16]
[16]PCB 60
26 Dr Doss noted that the psychiatrist had prescribed the plaintiff Luvox for her psychiatric condition.
27 In his report dated 16 April 2013, Dr Doss noted that the plaintiff had greatly improved in relation to her physical condition as a result of the transport accident. However, the plaintiff still had residual Post-Traumatic Stress Disorder symptoms. He noted that the plaintiff, at that time, was still receiving treatment from a psychologist as well as a psychiatrist.[17]
[17]PCB 61
28 More recently, the plaintiff has been seen by Dr Ravi Wijesekara, general practitioner, at the Doveton Medical Centre. In a report dated 28 May 2018, Dr Wijesekara stated as follows:
“Lejla had a motor vehicle accident on 27/07/2007. Since then, she has been having a major depressive disorder with suicidal ideations. She has been on specialist psychiatric treatment and on medications as well. She was treated with ECT. As she has been severl[e]y depressed, she is not in a position to work in any capacity. Lejla has be cared continually by her family. Her prognosis is very unclear.”[18]
(sic)
[18]PCB 86
Carley McGauran, psychologist
29 Ms Carley McGauran, psychologist, initially saw the plaintiff on 11 September 2007. The plaintiff was treated by Ms McGauran from September until 23 October 2007.[19]
[19]PCB 181
30 In her report dated 11 September 2007, Ms McGauran stated that the plaintiff was struggling to cope with the symptoms of Post-Traumatic Stress Disorder. In her report, she stated:
“… Lejla discussed having back and chest pains, neck pain, difficulty breathing, stomach pains, headaches, uncontrollable crying and shaking, intrusive flashbacks, nightmares, physical and emotional distress when confronted with triggers of accident, difficulty eating at all, withdrawal from peers and family, non-attendance at school and some suicidal ideation.”[20]
[20]PCB 21
Ms Emel Ahmet, psychologist
31 The plaintiff was treated by Ms Emel Ahmet, psychologist, between 14 November 2007 and 19 July 2011.[21] In her first report dated 14 December 2007, Ms Ahmet stated that the plaintiff was suffering from severe symptoms of Post-Traumatic Stress Disorder and Major Depression.[22]
[21]PCB 80
[22]PCB 63
32 In her final report, dated 1 May 2013, Ms Ahmet stated as follows:
“Diagnostically Lejla was assessed at the time to be suffering from a Major Depressive Disorder, Anxiety and Panic Disorder as well as Post Traumatic Stress Disorder.”[23]
[23]PCB 81
33 I note that the plaintiff ceased attending upon Ms Ahmet after the defendant, the Transport Accident Commission, stopped payments for that treatment. The last of the treatments was 19 July 2011.
Dr Roy Nallaratnam, psychiatrist
34 The plaintiff was originally seen by Dr Nallaratnam on 3 August 2007, and continued to be treated by him until his retirement in the middle of 2017. In his report dated 20 April 2017, Dr Nallaratnam noted that he had prescribed various medications to the plaintiff, including antidepressants and anti-anxiety medication.
35 In his report, Dr Nallaratnam acknowledged that the plaintiff had successfully completed her studies, both at school and at RMIT University. He then went on to say as follows:
“However she felt that her original zest for living was not there. Unconsciously she kept blaming herself for the accident. She even went overseas to try forget the accident in the hope that a change of scenery would overcome the inward directed aggression. This too did not help. As a last resort she fell pregnant in the hope that a change of life-pattern could make her forget the accident.
While the baby is keeping her busy, the depression seem to have affected her physiological function in that she is unable to secrete milk and the baby has to be bottle-fed. This lack of milk secretion is totally beyond her control and would appear as a result of the Depression.
She is still suffering from Post-traumatic Stress.”[24]
(sic)
[24]PCB 57
Dr Alan Gallogly, psychiatrist
36 The plaintiff was originally introduced to Dr Gallogly for the purpose of medico-legal reporting in June 2016. Upon the retirement of Dr Nallaratnam, Dr Gallogly became the plaintiff’s treating psychiatrist.
37 In his final report dated 27 April 2018, Dr Gallogly noted that when he saw the plaintiff on 15 March 2018, she told him that she had ceased all medication except for the antidepressant, Pristiq, and the sedative, Diazepam. He noted the plaintiff stated the medications were making her worse and that she felt better off them.[25] Dr Gallogly had diagnosed the plaintiff as suffering from a Major Depressive Disorder (Severe) and a Post-Traumatic Stress Disorder.[26]
[25]PCB 41
[26]PCB 41
38 In the final part of his report, Dr Gallogly dealt with the prognosis for the plaintiff. He stated as follows:
“In my view the prognosis with Miss Etem is quite guarded. By that I mean the symptoms are severe, they have been going on for a prolonged period of time and she is struggling significantly.
It is my opinion that psychotropic medications will have little impact on this young woman’s mental health.
With respect to brain stimulation, Electroconvulsive Therapy (ECT) and Transcranial Magnetic Stimulation (TMS) are both indicated for depression but not indicated for post-traumatic stress disorder. If she were to have these treatments, they might improve her depression to some degree – they will not have any major impact on the posttraumatic stress disorder symptoms.
With respect to post-traumatic stress disorder, the gold standard treatment is EMDR (Eye Movement Desensitising Reprocessing). Given how severely depressed Miss Etem is she is unlikely to respond to EMDR treatment.
I do note in the report provided by Dr Enwistle dated 16 November 2017, he strongly recommends a family approach. Dr Robert Chazen also has indicated family therapy.
I certainly agree that this is an important aspect of the treatment and ultimately a family approach, I think, will be part of the recovery plan. Again, I remain guarded about how successful such an approach would be.
Regrading prognosis, while I have made recommendations around carious treatments; my clinical impression in this case is that the prognosis is guarded. I would not be surprised if Miss Etem did not make any significant progress despite a full course of ECT treatment and a full course of TMS treatment.
This seems to be quite a tragic case and unfortunately it certainly looks like Miss Etem will continue to suffer from significant psychiatric symptoms for the foreseeable future.”[27]
[27]PCB 43-44
39 I note that Dr Gallogly refers to the family therapy proposed by both Dr Entwisle and Dr Robert Chazan, who have seen the plaintiff on behalf of the defendant. I accept Dr Gallogly’s opinion that while a family approach to the treatment and recovery for the plaintiff may be appropriate, the chances of it being successful are unlikely, given the length of time that the plaintiff has suffered from the conditions of Major Depression and Post-Traumatic Stress Disorder. The plaintiff has been suffering from these conditions for in excess of ten years.
Dr Nathan Serry, consultant psychiatrist
40 Dr Serry examined the plaintiff for the purpose of medico-legal reporting. He prepared a report dated 24 April 2017. Dr Serry’s diagnosis of the plaintiff was:
“1. Chronic PTSD
2. Chronic major depression with anxious features
3. Somatic symptom disorder with predominant pain, persistent and of moderate severity.”[28]
[28]PCB 51-52
41 Dr Serry also expressed an opinion in relation to the plaintiff’s prognosis. He stated as follows:
“Your client’s prognosis is in my opinion quite guarded. Your client has struggled for many years post accident, her struggle having been exacerbated by the impact of the subject accident on her younger sister Ajla and also on your client’s mother. There appears to be a pattern of family pathology which reinforces and exacerbates your client’s condition and as well as ongoing individual psychiatric treatment, I would be inclined to recommend expert family therapy.”[29]
[29]PCB 52
The Defendant’s Doctors
Dr Robert Chazan, psychiatrist
42 Dr Chazan examined the plaintiff on behalf of the defendant for medico-legal purposes. He prepared three reports dated 30 June 2009, 11 April 2012 and 21 July 2012.
43 In his first report of June 2009, Dr Chazan noted:
“Lejla has had a traumatic response to her experience of the accident. Her PTSD has strong features of anxiety, insecurity and there is a depressive aspect to her adaptation. Lejla’s presentation is in line with her family’s way of coping.”[30]
[30]DCB 5
44 Dr Chazan stated that the symptoms and signs of Post-Traumatic Stress Disorder are often intractable and require prolonged treatment, often fraught with regressions and unpredictable reactions.[31] This statement made by Dr Chazan in 2009, unfortunately for the plaintiff, has turned out to be very prophetic.
[31]DCB 6
45 Dr Chazan’s prognosis for the plaintiff in June 2009 was as follows:
“The prognosis is not good, as core symptoms and signs of PTSD are notoriously difficult to shift, and there has not been a promising response to initial treatment. In favour of beneficial change is a past history of personal success and well-functioning, absence of prior pathology, and the family factor, which is potentially capable of change.”[32]
[32]DCB 9
46 Dr Chazan was asked to re-assess the plaintiff on 11 April 2012. In his report dated the same date, he noted that the plaintiff, at that stage, was prescribed Fluvoxamine, 100 milligrams at night. He stated that the plaintiff was receiving treatment from Dr Doss, and psychiatrist, Dr Nallaratnam, and her treating psychologist was Ms Emel Ahmet, who she had not seen for about a year.[33] This history of treatment is accurate, as Ms Ahmet had ceased seeing the plaintiff in the middle of 2011.
[33]DCB 13
47 Dr Chazan diagnosed the plaintiff as suffering from a Post-Traumatic Stress Disorder and Major Depression at that time.[34] He went on to state:
“Some cases of PTSD become chronic and remain active for long periods and even for life. Some lead to the evolution of a Major Depression. This seems to be happening with Lejla.”[35]
[34]DCB 14
[35]DCB 15
48 In April 2012, Dr Chazan thought the plaintiff’s prognosis was poor.[36]
[36]DCB 17
49 Dr Chazan was then sent the study results of the plaintiff for Year 12, Semester 1. He noted in his report that the plaintiff stated she had missed three exams. This is consistent with her derived scores obtained for three of the subjects she did sit in VCE. Dr Chazan stated:
“I cannot explain the discrepancy that these reports highlight, but there is a discrepancy in the degree of disability implied by the school reports and that implied by my examination.”[37]
[37]DCB 20
Dr Timothy Entwisle, psychiatrist
50 Dr Entwisle has examined the plaintiff on two occasions, being 29 July 2016 and 30 October 2017, for medico-legal reporting. In total, Dr Entwisle has prepared three reports, dated 30 August 2016, 16 November 2017 and 7 December 2017.
51 At the commencement of this proceeding, the production of the report by Dr Entwisle dated 7 December 2017 produced some excitement and concern for the plaintiff’s counsel. Initially, Mr Hayes wanted to cross-examine Dr Entwisle about the reason for the production of the final report dated 7 December 2017. By the end of the proceeding, the concern over Dr Entwisle’s third report dissipated to little more than a murmur.
52 In his report dated 30 August 2016, Dr Entwisle took a history from the plaintiff that she continued to see a psychiatrist at that time. She stated that she had ceased taking Luvox at the time of her pregnancy, and remained off it. He noted that she appears to have managed well in the absence of that medication.[38]
[38]DCB 23
53 In the summary section of his first report, Dr Entwisle noted the plaintiff’s affect was, at times, light and smiling, almost in a self-conscious way. She would then tell him that this was not really so and that underneath she was dying and losing herself.[39] Dr Entwisle noted the discrepancy between the plaintiff’s description of her academic study and results with the reality of high achievement. He went on to say:
“As such, there is a dichotomy involving Ms Etem involving aspects of her subjective experience of life as a struggle contrasting with her achievement of various educational and professional goals and a successful marriage and motherhood. It is as if Ms Etem lives on two planes, and whilst her inner experiences involve trauma and distress, these have not prevented her from succeeding in those areas of her life.”[40]
[39]DCB 26
[40]DCB 26
54 Dr Entwisle diagnosed the plaintiff as suffering from a Post-Traumatic Stress Disorder and Chronic Pain Syndrome at that time.
55 Dr Entwisle stated:
“Ms Etem’s impairment can be understood as a traumatised response as a result of a direct consequence of the accident and equally her experience of chronic pain which occurs secondary to soft tissue injuries and the development of a pain syndrome from the accident.”[41]
[41]DCB 27
56 In his report dated 16 November 2017, Dr Entwisle took a history from the plaintiff that she was getting up as late as 11 and 12 o’clock in the morning.
57 In this second report, Dr Entwisle noted that the plaintiff’s presentation was qualitatively and quantitatively quite different. He noted that the plaintiff had regressed more significantly than on the first occasions, when she seemed more positive about her life, and had just been married and given birth to her child, Omer.[42]
[42]DCB 32
58 Dr Entwisle stated:
“There was no suggestion from myself or for that matter Dr Robert Chazan suggesting that Ms Etem was either malingering or exaggerating her psychological symptoms for secondary gain. Her issues go far deeper than that in Ms Etem’s case and involve shared feelings of guilt with her mother as to the accident itself, as detailed previously and that level of role diffusion continues to this day with Ms Etem sharing the role of Omer between them. As such, cultural, familial factors are significant in her case. It is my view that Ms Etem is not likely to respond to intervention such as EMDR or various forms of psychotropic medication. Where more deep-seated psychological factors are at play it is well-known that guilt drives the symptoms of PTSD in many cases and as Dr Chazan has indicated, family therapy, the one treatment modality which may be of assistance to Ms Etem and her family has not been undertaken.”[43]
[43]DCB 33
59 In November 2017, Dr Entwisle diagnosed the plaintiff as suffering from the chronic psychiatric conditions of Post-Traumatic Stress Disorder, major depressive illness and Chronic Pain Syndrome. He noted that the plaintiff’s psychiatric condition had deteriorated from the first time when he had seen the plaintiff. He stated that the plaintiff required ongoing individual psychiatric and psychological treatment for her condition.[44]
[44]DCB 34
60 In his final report dated 7 December 2017, Dr Entwisle was asked to comment on the family-related complications in the plaintiff’s psychiatric presentation. Dr Entwisle noted the history from Dr Gallogly and a Dr Schultz, stating that they did not deal with the family factors in their opinions. I note that Dr Gallogly did report on the family factors in relation to the plaintiff’s presentation and in the formation of his opinions. This was an error on behalf of Dr Entwisle.
61 Dr Entwisle, in his final report, expanded on his previously stated opinion that the family factors at play in the plaintiff’s life are an explanation for the regression and return of the plaintiff’s psychiatric symptoms. He noted that the plaintiff’s current relapse into illness behaviours are not explained by the accident itself but, rather, factors operating within the family.[45]
[45]DCB 36
62 While I accept that the family factors referred to by the various psychiatrists make a contribution, in part, to the plaintiff’s psychiatric condition, I do not accept the opinion of Dr Entwisle that those factors are the sole reason for the plaintiff’s relapse. As was predicted by Dr Chazan, the plaintiff has relapsed to the initial reaction by her to the trauma of the transport accident. I find that the severe nature of the plaintiff’s Post-Traumatic Stress Disorder and Major Depression with elements of Anxiety are due to the transport accident.
63 It is clear from the evidence of the plaintiff, herself, but more significantly from the trained psychiatrists that have reported on the plaintiff’s condition, that her condition and symptoms are severe and have a debilitating effect on the plaintiff’s life in every aspect. I also accept that given the length of time since the accident until this proceeding, the plaintiff’s condition has fluctuated, in part, but predominantly by, the conditions of Post-Traumatic Stress Disorder and Major Depression, which have been consistent and longstanding. The professional medical opinions are that the plaintiff’s psychiatric condition is for the foreseeable future, and longlasting.
The credit of the Plaintiff
64 Mr Middleton, on behalf of the defendant, challenged the credibility of the plaintiff in the course of this proceeding.
65 The first topic of challenge to the plaintiff’s credibility was her academic results. The plaintiff obtained an ATAR score of 83.9 at the end of 2011. This was some three-and-a-half years after the accident. The following evidence was given in relation to this matter:
Q:“Can I put to you that you got good marks in the period upon your return to school after the motor accident?---
A:I had a lot of help from all my teachers. Everyone knew about what was happening. I was able to leave class when I needed to. I had the extensions. I needed them. I had after-school classes with my teachers, and that was what helped me get through my schooling. The same thing happened with university.”[46]
[46]T55, Lines (“L”) 15-22
66 The plaintiff also obtained very good results in her RMIT University course. The plaintiff’s RMIT University academic transcript reports that she obtained her Bachelor of Arts (Criminal Justice Administration) with Distinction.[47] It is clear that the plaintiff did very well as a student at RMIT. The plaintiff was challenged about these academic results on the basis that it did not show that she was suffering any psychiatric problems at the time of her study. The following evidence was given:
[47]DCB 45-46
Q:“The fact is the content of your results is a reflection of your ability with that special consideration, that is sitting alone and extra time?---
A:And extra help. I had people sitting with me. I had extra class time. It wasn't just those two factors. I had a lot of extra support.
Q: You are talking about school?---
A: School and university.
Q:So you were functioning in the normal day and then you were getting extra classes after school, were you?---
A:During lunchtime.
Q: So you were working harder than the normal student?---
A: Because I needed the help, yes.
Q:And in the context of the RMIT results no-one gave you extra assistance there, did they?---
A:No, they gave me extra assistance there too.
Q: When were you getting that assistance and how?---
A: In between breaks.
Q: In between breaks?---
A: Yes.”[48]
[48]T64, L14–19
67 I accept the plaintiff’s explanation that she received special consideration and assistance during the course of her study, both at school and university, and that she was anxious and keen to make something of herself by being successful with her studies.
68 The plaintiff was challenged about her reason for ceasing to work at the Supreme Court being due to her inability to continue that work because of her psychological and psychiatric condition. The plaintiff’s evidence was that she was hiding her symptoms at the time she was working at the Supreme Court and putting on a happy face for those that she worked with. I note that the reference from the Honourable Justice Robson dated 25 September 2014, describes the plaintiff as being extremely engaging and a person who was very helpful in her role at the Court.[49] I accept the plaintiff’s evidence that she was able to cover up her symptoms and concerns while she was at work at the Supreme Court, and that this was for a short period of time prior to her being married.
[49]PCB 141
69 The plaintiff was also challenged about documents she completed in relation to her employment at the Supreme Court. In particular, the plaintiff completed a pre-existing illness declaration form dated 5 June 2014, where she said she had nil injuries or diseases.[50] In a later document dated 23 September 2014, the plaintiff left the answer to that question blank.[51] In her evidence, the plaintiff was cross-examined about making these false declarations. The evidence was as follows:
[50]DCB 47
[51]DCB 49
Q: “And is that your handwriting?---
A: Yes.
Q:And at the very foot of page 47 it says, ‘I acknowledge that any non-disclosure or false or misleading information on my part may result in section 82(8) of the Accident Compensation Act 1985 being applied. This may disentitle me or my dependants from receiving workers compensation,’ et cetera, et cetera, ‘Pre-existing injury or disease which I may have’; did you read that?---
A:Yes.
Q: At this point in time you are just about to complete your course?---
A: Mm-hm.
Q:And, having done a Bachelor of Arts with a criminal justice administration component or major, you knew full well the impact of swearing a false declaration, did you not?---
A:Yes.
Q:And you have got there your name and, ‘I acknowledge that I'm’ - this is (2), ‘I acknowledge that I'm required to disclose all pre-existing injuries or diseases which I believe may be affected by my undertaking the role of registry officer, and I've suffered the following,’ and you put ‘nil ’?---
A:Yes.
Q: So you knowingly signed a false declaration?---
A: Yes.
Q: How do you explain that?---
A:I explain that because I wanted a fair go just like everyone else, and I felt like if I was to disclose what I was going through I wouldn't have been given that chance.
Q:You then see the one at 49. This is when your second period of employment kicks in; is that so?---
A:It could be.
Q: And here you've just left it blank; is that so?---
A: Yes.
Q: And, again, you knowingly left it blank?---
A: Yes.
Q: Deliberately?---
A: Yes.
Q:And you knew that you were falsely or misleadingly providing information to the employer?---
A: Yes.
Q:Is it the case that you will state falsehoods for the purposes of gain whenever it's necessary?---
A:If you're meaning for today, no, I have nothing to lose today. Here I felt like I was losing everything I had worked so hard for.
Q:That's the point, isn't it? You were able to successfully complete your secondary schooling with an excellent ATAR score; correct?---
A:Yes, with a lot of help.”[52]
[52]T63, L1 – T64, L8
70 I accept the plaintiff’s explanation that she admitted to making two false declarations in respect of the pre-existing illness declaration forms. I accept that she did so in an effort to “make something of herself” after having successfully completed Year 12 and the Art’s course at the RMIT University. At the time of making the first declaration, the plaintiff was still a student at the university. While clearly those declarations are false, I do not accept that those two instances attack the whole of the credibility of the plaintiff in this case. There are ample other sources of information, including her parents, on affidavit, together with the medical practitioners who have assessed and given opinions on the plaintiff’s condition, which confirm her overall evidence about her condition and symptoms.
71 The plaintiff was also challenged about the topic of her overseas travel. She gave evidence that she had been overseas on three occasions since the accident. She stated she was overseas in 2013, 2014 and 2015.[53] The evidence from the plaintiff was that on one occasion she was overseas for a period of six to seven weeks and that during that time she did not have her medication. The plaintiff’s evidence was that she was not coping. I do not accept that the fact that the plaintiff travelled overseas on three separate occasions is indicative that her symptoms are not ongoing. In respect of the medication running out, the plaintiff has, on another occasion, that is, when she was pregnant with her son, ceased taking the medications.
[53]T88
72 In conclusion, I accept the plaintiff was a credible witness and doing the best she could to give an accurate description of her symptoms and condition. Her presentation in Court was, initially, one of tearfulness and putting on a brave face. I have previously noted in these Reasons, the plaintiff had to call for a break during the course of her cross-examination. This break was for genuine reasons of upset, and it was similar to those described by medical practitioners who have interviewed and seen the plaintiff during the course of this whole proceeding.
The consequences of the psychiatric injury for the Plaintiff
Medication
73 The plaintiff continues to be prescribed Pristiq and Diazepam by her psychiatrist. The plaintiff takes these medications. Over the time since the transport accident, the plaintiff has consistently been prescribed psychiatric and psychotropic drugs to deal with her psychiatric symptoms. It is now some ten years since the time of the transport accident, and the plaintiff will continue to be prescribed medication into the future. I note that some of the treating psychiatrists, over time, have stated that the medications will not necessarily deal with the plaintiff’s symptoms, but they continue to prescribe it.
74 I find the need for the plaintiff to be prescribed and take medications for the foreseeable future is a very considerable consequence for her.
Activities of daily living
75 I accept the plaintiff’s evidence that she is now, effectively, housebound. She has a young child and a husband. Her own mother provides most of the childcare for her son. The plaintiff is unable to engage in the activities of the house or family until late morning. On occasion, she remains in her pyjamas for the whole day. While the family structure and accommodation, in effect, enables the plaintiff to continue to be supported by the other members of the family, it impacts upon her day-to-day life in a very significant way. I find that the plaintiff’s life is miserable.
76 The plaintiff has been, and is, unable to take advantage of her successful studies at the RMIT University and engage fully in the workforce. I accept that this is a very considerable consequence for her.
Sleep
77 While the plaintiff has given evidence, and I accept, that she remains in bed or asleep until sometimes midday, the plaintiff requires the prescription of Diazepam to assist her in getting to sleep. The plaintiff’s sleeping patterns have been so disturbed by the psychological symptoms that this is a very considerable consequence to her.
Matrimonial relations
78 The plaintiff has given evidence that her husband does not know of her psychiatric condition. She has not told him about it. There was no evidence in this case from her husband, either on affidavit or viva voce evidence. While I find that it is unusual that her husband would not know of her psychiatric condition, and the cause of it, it is possible that her husband just accepts the plaintiff as she presents to him. The reality is that there are other members of the family who live with the plaintiff and her husband who are affected by the transport accident.
79 I accept the plaintiff’s evidence that her intimate relationships with her husband have been affected as a result of her psychiatric symptoms.[54]
[54]T76
80 I also accept that the plaintiff’s inability or reluctance to communicate directly with her husband about her psychiatric symptoms as a result of the transport accident is a significant matter for her. It is significant because she maintains, and I accept, that culturally, for her to have a psychiatric difficulty would lessen her in the eyes of her husband.
81 I find that the matrimonial relationship with her husband has been considerably affected by her psychiatric symptoms and that this is a very considerable consequence for her.
Ansett Australia Ltd v Taylor[55]and Transport Accident Commission v Florrimell[56]
[55]Supra
[56]Supra
82 The plaintiff relies upon the fact that the Transport Accident Commission has paid for her psychological treatment, visits to her general practitioner, and her medications. The plaintiff submitted that this amounted to an admission by the defendant as to the level of injury, and the causation of the injury to the plaintiff.
83 In particular, the Transport Accident Commission has continued to pay for the plaintiff’s medications, including Pristiq and Diazepam, up until May 2018.[57] I do not accept that this amounts to a concession or admission on behalf of the Transport Accident Commission.
[57]PCB 190
84 The real strength in the plaintiff’s case is her own evidence and her credibility. It is clear that none of the doctors in this case are saying that she is a malingerer or putting this on for secondary gain. In particular, Dr Entwisle said that she is not malingering or behaving for secondary-gain motivation.
85 On the issue of whether payments for medications or physical treatments for plaintiffs can be used as an admission by the authority, in this case, the Transport Accident Commission, to prove causation, has been considered in the case of the Transport Accident Commission v Florrimell.[58] In particular, the Court of Appeal stated:
[58]Supra
“Furthermore, Florrimell submitted, the evidence of Mr Kierce was not unreasonably rejected because:
(1) he made no attempt to analyse the opinion of Mr Dooley;
(2) he failed to comment on the new findings in the post-accident ultrasound and to this extent his Honour was correct in his criticism of the limited reference made by Mr Kierce to the radiological material;
(3) the instructions to Mr Kierce failed to mention the efficacious aspect ongoing shoulder symptoms recorded by Dr Stobart post-accident and the injections he administered for tendon damage;
(4) there were shortcomings in the history taken by Mr Kierce, which his Honour remarked upon, to the effect that the only medication he thought Florrimell was taking was an anti-depressant and that he reported that Florrimell’s wife helped him shower and dress when the evidence was the other way.”[59]
[59](Supra) at paragraph [41]
86 The plaintiff has had ongoing medical treatment, either by way of a psychiatrist or a psychologist, from the time of the transport accident until this hearing. The plaintiff has been prescribed various psychotropic medications for most of that time. She is currently taking Pristiq and Diazepam.
87 On the basis of the medical evidence in this case, it is clear that the Post-Traumatic Stress Disorder symptoms and the Major Depression symptoms suffered by the plaintiff have been caused by the transport accident on the said date.
88 The plaintiff’s psychiatric condition can only be described as being “severe”. The plaintiff’s life has, and will for the foreseeable future, be miserable, and one of great dependency for support from her family. She has been unable to engage in the workforce after the birth of her child. She has been unable to properly look after her child, and requires ongoing support from her mother. I accept that the plaintiff’s psychiatric condition will remain in this severe state for the foreseeable future. The medical opinions as set out in these Reasons for Judgment state that the plaintiff’s condition is unlikely to improve in the future. I accept that the family factors may have some ongoing input into the plaintiff’s psychiatric condition, but the significant contributor to the plaintiff’s condition is the transport accident.
89 I find that the plaintiff has suffered a severe long-term mental disorder and severe behavioural disturbance as a result of the transport accident which occurred on the said date.
90 I grant the plaintiff leave to bring proceedings for damages arising from the transport accident on the said date.
91 I will hear the parties on costs.
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