Evans v Depalo and Telstra Corporation Limited No. DCCIV-95-1352 Judgment No. D3624

[1997] SADC 3624

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge David

Hearing

21/04/97 to 24/04/97, 30/04/97.

Catchwords

Motor vehicle accident - first defendant hit plaintiff's stationary vehicle from behind - defendants admitted liability - assessment of damages - plaintiff suffered whiplash injury to her neck - physical injuries healed after 6 months but plaintiff continued to suffer pain - pain caused by plaintiff's psychiatric disorder - issue is whether the accident caused the plaintiff's psychiatric disorder - conflicting psychiatric evidence - found that the plaintiff had a pre-existing bipolar mood disorder - accident did not cause plaintiff's psychiatric disorder - damages assessed on the basis that the plaintiff suffered soft tissue damage to her neck - non economic loss - special damages - past economic loss - no award for future economic loss or future medical expenses.

Representation

Plaintiff SUZANNE KATHLEEN EVANS:
Counsel: Mr. M. Randle - Solicitors: Randle &; Taylor

Defendant FRANK DEPALO:
Counsel: Mr. A. Crocker - Solicitors: Ward &; Partners

Defendant TELSTRA CORPORATION LIMITED:
Counsel: Mr. A. Crocker - Solicitors: Ward &; Partners

DCCIV-95-1352

Judgment No. D3624

12 June 1997

(Civil)

EVANS v DEPALO & TELSTRA CORPORATION LIMITED

D3624

Criminal Jurisdiction

His Honour Judge David

The plaintiff in this action claims against the defendant for damages which she suffered as a result of a motor vehicle accident which occurred on the 17th November 1992 at 8 o'clock at night on Tapleys Hill Road at Fulham Gardens. The undisputed evidence was that her vehicle was stationary when it was hit from the rear by the defendant's vehicle.Liability is not in issue and the matter now comes before me by way of assessment of damages.There is no dispute that as a result of the accident the plaintiff suffered a whiplash injury to her neck.As far as physiological damage is concerned the opinions of Dr. Eriksen (Exhibit D2) and Dr. Jose plus the evidence of her general practitioner, Dr. James are that she suffered a restriction to the neck for some six months.From this time onwards there has been no ongoing neck injury. The plaintiff however complains that from about two weeks after the accident she was suffering extreme pain in the neck area and down the side of her back. The pain was so extreme that she started taking extensive amounts of Panadeine Forte tablets and has continued with them ever since.She says that the pain is severe and continuous, that she cannot exercise or walk and it certainly affects her ability to hold a full-time job.She gave evidence that even today she cannot carry out normal functions such as washing and drying her hair and needs to take Panadeine Forte before getting dressed.She cannot wash or iron or vacuum, she also suffers from giddiness.Because of the pain she now has no social life and any physical pursuits are impossible.She gave evidence that she used to enjoy water skiing and walking but these cannot be performed because of the pain she continues to suffer.She described it as excruciating and continuous.There was no dispute that that pain as described by the plaintiff cannot be explained by physiological factors.The reasons she suffers such pain is obviously one of a psychiatric nature.The issue before me is whether the accident has caused that psychiatric condition which causes the extreme pain she has described.

There are two bodies of evidence before me of a psychiatric nature giving two different views on the above question.In summary a psychiatrist, Dr. Koopowitz, has given an opinion that on his clinical assessment of the plaintiff as a result of the accident she is suffering from a post-traumatic stress syndrome and a post-concussion syndrome either of which is consistent with the pain that she has described.He gave evidence that there was no pre-existing psychiatric condition before the accident which could explain her present state of pain.In contrast to that opinion are the opinions of Dr. Edmund Scanlon and Professor Robert Goldney.Both gave evidence that they are of the opinion that prior to the accident the plaintiff was suffering from a bipolar disorder and it is this disorder which has caused her present psychiatric state producing the pain she is now experiencing.According to the evidence of Dr. Scanlon and Professor Goldney the accident had nothing to do with her present psychiatric state other than to hasten its deterioration due to the bipolar disorder, by something like two months.The opinions of Dr. Scanlon and Professor Goldney about her suffering from a pre-existing bipolar disorder are vigorously disputed by Dr. Koopowitz who maintains that it is the accident that has brought on her present state due to a post-traumatic stress syndrome and/or a post-concussion syndrome.There seems to be no dispute that the plaintiff is genuine when she gives evidence about her present state of pain and the issue seems to be what psychiatric opinion I should accept when explaining that pain.Before turning to the psychiatric evidence it is important to give a history of events that are relevant to the conflicting psychiatric opinions.

I observed the plaintiff very carefully.It is clear from my observations that, to use a general expression, she is a disturbed woman.She appeared to be very emotional to the point of hysteria when answering questions, she rambled excessively and appeared to have great difficulty concentrating.

The plaintiff gave evidence that she was born on the 13th January 1946 and was married on the 30th June 1965.She has three children by that marriage namely Darcy (born 1966), Rebekah (born 1970) and Ebony (born 1983).In the mid 1980's she had a history of problems with her husband.Her husband first left her in 1987 and that brought on a heavy use of alcohol and cannabis.From about 1988 onwards she had seen a range of doctors about depression and counselling in relation to her marriage difficulties.From a combination of her evidence and the hospital records that have been provided in this case, her relevant medical history both before and after the accident has been clearly presented to me.This history is set out in the report of Dr. Scanlon dated the 21st June 1996 (Exhibit D3 page 2 onwards).I find that the history set out in that report is accurate.I will not set that history out but I find that it has been accurately summarised in the above report starting from the 18th July 1990 until about the 23rd October 1995.

Dr. Koopowitz gave evidence that he is a psychiatrist working for the South Australian Mental Health Services.He practiced psychiatry in South Africa. He works at Glenside Hospital and part of his duties incorporate being a consultant psychiatrist to SAMHS.It was while in that position he was asked to evaluate the plaintiff's diagnosis which at that time was one of bipolar disorder.He gave evidence that he interviewed Mrs. Evans in mid 1996 and overall interviewed her three times.He presented three reports to the Court dated the 21st May 1996, 1st July 1996 and the 10th November 1996 (Exhibit P1). Having interviewed Mrs. Evans and having looked at her medical record he was of the opinion that her pain since the accident as described by Mrs. Evans is genuine and is consistent with being caused by either post-traumatic stress syndrome or post-concussion syndrome or both.He gave evidence that he could not accept the diagnosis of her present psychiatric state as being bipolar mood disorder.His reason for saying it was not bipolar disorder is encapsulated in the following passage of evidence:-

"Q. My learned friend asked you to take it on board with this qualification, for me to say which part of the history.I am asking you to look at the overall history, before and after the accident:what features do you say to the court mean 'I don't think it's BMD.'

A. The specific presentations both before and after the accident, in terms of her psychiatric presentations prior to the accident, they were very short lived, probably best described as adjustment disorders or adjustment reactions to stressors at that time.It was only after the accident where she had more prolonged hospitalisations, but then in the context more of non-purposeful disinhibited acute behavioural disturbance which generally settled down fairly rapidly in the context of her coming into hospital and being put into a structured environment.My experience of patients with severe bipolar disorder - bipolar disorder of the severity that it interferes with their ability to function, is that they are the ones who have the prolonged hospitalisations and regardless of the environment, take a long time before the symptoms settle. You certainly don't see their symptoms settling within one or two days.

Q. Prolong means.

A. Weeks or months.

.

HIS HONOUR

Q. What I'm getting at, is bringing it down to this case, is the suggestion is - but it might be thought that her problems were brought on by the break up of her marriage.Depending on how we describe those problems, whether it be BMD, or whatever, would you like to comment on that as far as an event like that, in a sense bringing on BMD, or bringing on the symptoms of it.

A. In here specific instance?

Q. Yes, I would like you to help me with that.

A.Because I went into that in detail with her, in terms of trying to work out what the role of the break up of the marriage - what role that played and my feeling was, as stressful as that was and that was an on-going stressor, by the time of the accident, she had been recovering from that stress; she had used again what personality strengths she had; taking into account her dependency needs and all her other personality problems, but she used whatever strengths she had to, I think, fairly successfully cope with the break up of the marriage and certainly there's nothing prior to the accident to suggest that in very strong terms that the break up of the marriage had to an uncovering of a bipolar mood disorder.

Q. I mean at worst it would not create a bipolar mood disorder, it would bring it to the surface.

A. It would uncover it, yes.

XN

Q. Assuming that the court has some evidence which it may well find credible, that lay people have been struck by feeling that Mrs. Evans, before the accident and even in some cases, quite close to before the accident and Mrs. Evans, after the accident, are, as it were, two different persons.Is that something that you should comment about.

A. That again would lay more weight on my assessment of the subjective experience of the trauma and the post-traumatic stress disorder, because a lot of people - post-traumatic stress disorder is an illness which can affect many facts of somebody's life and I've often heard that reported in people who've had severe chronic post-traumatic stress disorder, that it's like they were different people.Incidentally, I very rarely hear that with patients with bipolar mood disorder who have had it, because the patients have had that pattern for a long time and it's actually very rare that there will be that marked difference between chronic functioning, prior and post to an event. People would always have commented on the moodiness and predicability of the person with bipolar disorder."

In cross-examination Dr. Koopowitz agreed that he first came to the view that she did not have a bipolar disorder when he saw her on the 8th and 13th May 1996.On those occasions he was asked to re-assess her, he himself having given the opinion some 6 months earlier that she did have a bipolar disorder. His reason for changing his view was that when he saw her on the 13th May 1996 he went through her developmental and background history in more detail to try and see if there had been any early evidence of bipolar disorder that had not been documented previously or had not been recognized (Evidence page 210).In cross-examination he also said that at the end of the third interview after the 13th May 1996 his opinion was that prior to the vehicular accident there had been no reported pathological mood swings consistent with bipolar mood disorder.Also under cross-examination Dr. Koopowitz agreed that for there to be a post-concussion syndrome there had to be at least an altered state of consciousness.The only basis he gave for that opinion was how the plaintiff described the accident.There was no diagnosis of concussion or altered state of consciousness by any doctor after the accident.

The opinions of both Dr. Scanlon and Professor Goldney are that her bipolar disorder is a natural progression which has increased until it emerges in the condition that she has got at present.Both Dr. Scanlon and Professor Goldney are of the view that the history prior to the accident is consistent and indicative of a developing bipolar disorder.I was much impressed with Professor Goldney's evidence and when pressed on whether the accident could have in some way exacerbated her condition he says it could have effected it only in an insignificant way perhaps by accelerating the progression of deterioration by a few months.Both Dr. Scanlon and Professor Goldney reject the opinion of Dr. Koopowitz that she had no identifiable psychiatric disorder before the accident but either post-traumatic stress syndrome or post-concussion syndrome has caused her present state.Both reject Dr. Koopowitz's reasons for the cause of the pain on the basis that there is no evidence that she was in fact concussed and that is an important pre-requisite to post-concussion syndrome.As far as Dr. Koopowitz's opinion regarding post-traumatic stress disorder Professor Goldney said in evidence:-

"Q. You also noted that Dr. Koopowitz has the view that this woman presents with post-traumatic stress disorder, and in your report you say you have no doubt that that is not right.

A. Well, I think that the first criterion is just not met.

Q. The various criterion in DSM 4 -

HIS HONOUR

Q. What is the criterion you say is not met.

A. The first criterion is that the person has been ' exposed to a traumatic event in which the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injuries or a threat to the physical integrity of self or others' and the second point is the person's response involved intense fear, helplessness or horror.In addition, the trauma - it has to be exposure to an 'extreme traumatic stressor', an 'extreme traumatic stressor', and then in the explanatory notes it says 'Traumatic events that can be experienced that might cause this are severe automobile accidents'.Now, in my view, the accident just doesn't fulfil those sort of criteria and again if one adds in those other issues does this person have a pre-injury history of, you know, symptoms, treatment -

HIS HONOUR

Q. In other words, there are more likely explanations.

A. Exactly.One doesn't need to invoke something else.It's the case of Occam's razor.Don't introduce extraneous conditions to explain something which is obvious.

XN

Q. Dr Koopowitz has expressed an opinion to his Honour that the requirement that there be an extreme stressor is too rigid and he made reference to some recent work of Professor MacFarlane that the important matter to consider was the subjective perception on the part of the patient of the stressor.You are familiar with Professor MacFarlane's views on that matter.

A. I'm very familiar with them and I think he runs the risk of devaluing the currency that she has got because if one talks about a lot of these motor vehicles accidents as being severe stressors, you know it becomes a bit of a nonsense.Everyone ends up having a post-traumatic stress disorder whereas - in fact, it's a bit of cop out because people will blame that, they won't look at other issues in their lives, and it doesn't do a service to the patient because the patient is encouraged to view the accident as being of great significance when in fact there are all sorts of different issues.No wonder that sort of therapy is difficult because if they ignore the other issues, they are not going to get to first base.The other issue is, that in terms of using those diagnostic criteria, whether Professor MacFarlane likes it or not, whether Dr Koopowitz likes it or not these are the criteria that we have.One can interpret these words in different ways but in the introduction to the DSM
4 it talks about how the criteria, first of all, are not meant to be used in a cook book fashion.It also cautions about the uses of these criteria in forensic settings and it talks about the use of clinical judgment.Now, what that means is that one has to use clinical experience, that other facts that go on before the injury have to be considered as well.So, you know, you can't just use this in a cook book fashion.You can't say 'These criteria aren't broad enough, therefore I'm going to broaden them'.They have got to use what they have otherwise one runs the risk of devaluing the currency and saying that everyone who has had an accident ends up with a PTSD.

Q. They are the two diagnoses that you don't subscribe to, but you say that when you saw her she was suffering a bipolar disorder.

A. Yes."

I find that it is not insignificant that since July of 1992 Dr. Koopowitz is the only doctor who says that she does not have a bipolar disorder.I also find that Dr. Koopowitz has glossed over her medical history prior to the accident whereon more than one occasion she was diagnosed as having a manic episode typical of a bipolar disorder.These were significant factors according to Dr. Scanlon and Professor Goldney.I have also heard evidence that the medication she is on is consistent with the medication that is used for a bipolar disorders.

The plaintiff called a number of witnesses to give evidence of the contrast in her behaviour and demeanour before and after the accident.They were lay witnesses who had known the plaintiff.The evidence of these witnesses does not indicate to me that it was the accident that in fact caused this change. Their evidence, in my view, is consistent with the opinions of Dr. Scanlon and Professor Goldney that there was an identifiable deteriorating psychiatric disease before the accident which followed its natural progression after the accident to the extreme state that it is in today.I find the evidence of those witnesses merely consistent with that diagnosis.

Since the accident her psychiatric condition has deteriorated but I find consistent with the opinions of Dr. Goldney and Dr. Scanlon that this is the natural progression of the bipolar disorder.I find that the opinions of Dr. Scanlon and Professor Goldney are to be preferred to the opinion of Dr. Koopowitz on this topic and I find that the accident has had minimal effect on her psychiatric state.At the very least I find that the plaintiff has not proved on the balance of probabilities that the accident has caused her present condition consistent with Dr. Koopowitz's evidence.

I therefore assess damages on the basis that she has suffered a whiplash or soft tissue injury to her neck which has caused pain and inconvenience for something like 6 months since the time of the accident.I find that the extreme pain about which she now complains and which it is agreed has no physiological basis has not been caused by the accident.I now turn to the separate heads of damage.

In regard to non economic loss to which I am required to give a numerical value between 0 to 60 I assign a numerical value of 8 for the plaintiff's non economic loss.It is agreed that the prescribed amount under Section 35A(1)(b) of the Wrongs Act in 1992 was $1370.00.I therefore award her an amount of $10,960.00 for non economic loss.

As far as special damages are concerned on the basis of my finding I find that it is only those expenses that have been incurred for approximately 12 months after the accident and they are agreed at for that period of time $421.80.As far as past economic loss is concerned, I heard evidence that she worked with Ed Harrys in mid 1991 until approximately 1992 because at that stage she had to sought matters out concerning her husband's final separation which took place about that time.There was no attempt to go back to work since that time.The award for the type of work she could have earned in a job similar to Ed Harrys is something like $438.00 per week.However I have been supplied with a number of tax returns (Exhibits P8, P9 and P10) which indicated that when she did work for three months in 1988 and four months in 1990 she was averaging about $200.00 per week.Consistent with my finding that she may not have been able to work for something like 12 months after the accident but allowing for the contention that she did not seek work between mid 1992 and the date of the accident I allow an amount of $4,000.00 for past economic loss.Consistent with my findings I cannot award anything for future loss of earnings and for future medical expenses.I therefore award the following:-

Non economic loss$10,960.00

Past economic loss$4,000.00

Special damages$421.80

$15,381.80

I will hear the parties as to costs.

LATER IN COURT (12/6/97)

Judgment for the plaintiff in the sum of $15,381.80.

No order as to costs.