Gangemi v Transport Accident Commission
[2013] VCC 1209
•16 September 2013
| 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-11-05085
| DEANNA DOMENICA GANGEMI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 August 2013 | |
DATE OF JUDGMENT: | 16 September 2013 | |
CASE MAY BE CITED AS: | Gangemi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1209 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – injury to the neck – primary and secondary psychiatric injury – creditworthiness and reliability – misleading evidence given by the plaintiff in her affidavits – extent to which the misleading nature of the plaintiff’s evidence adversely affects her creditworthiness and reliability
Legislation Cited: Transport Accident Act 1986, 93(4)(b)
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr P Johnstone | Shine Lawyers Limited |
| For the Defendant | Mr D Masel SC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 25 October 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 6 April 2004.
2 Mr R McGarvie SC appeared with Mr P Johnstone of Counsel for the plaintiff and Mr D Masel SC appeared with Ms P Gates of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 The injury suffered by the plaintiff for which leave is sought is a psychiatric injury. The plaintiff initially sought leave with respect to a neck injury, but that was abandoned during the trial.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 5 – 145: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 9 – 276: Exhibit 1.
The Plaintiff’s background
7 The plaintiff was born in 1980 in Perth. She is now 32 years of age. She lives in a domestic partnership with her male partner.
8 The plaintiff completed Year 12 in Western Australia. She commenced a university course, which she abandoned. She subsequently commenced a course in multi media design. She left Perth, arriving in Melbourne in January 2004. She intended to enrol in a course to gain a qualification in entertainment make-up.
9 The plaintiff successfully enrolled in such a course in February 2004. Upon its completion, she anticipated having a Diploma of Entertainment Make-up conferred. The course was run by Napoleon Perdis. The duration of the course was one calendar year.
The transport accident
10 On 6 April 2004, the plaintiff was involved in the transport accident. She was removed from the scene of the transport accident by ambulance. She was taken to the Box Hill Hospital. She suffered injuries to her neck, with pain radiating into both shoulders. The plaintiff was subsequently discharged. She claims that she has been troubled by persisting pain in her neck since the transport accident which has affected, as she put it in her first affidavit sworn 7 September 2011, “almost every facet of my life”.
11 Despite claiming that she suffered interference with almost every facet of her life, and deposing in significant detail to those facets of her life which have resulted in impairment consequences, the plaintiff abandoned her application for serious injury based on the injury to her neck.
12 The application proceeded on the footing that the impairment consequences of the psychiatric injury were severe.
The Plaintiff’s medical treatment
13 At the time when the plaintiff was discharged from the Box Hill Hospital, she was provided with a medical certificate that she was suffering from a medical condition and would be unfit for work between 6 and11 April 2004.[1]
[1]DCB 134
14 The plaintiff then saw Dr Foong, general practitioner, on 13 April 2004. She told him she had been involved in a transport accident. His clinical note discloses the following:
“no head injury
initially very sore neck and top of back
still having a sore back and neck
no other symptoms.”
15 Dr Foong examined the plaintiff and found a restricted range of movement due to pain, stiffness and tenderness of her neck and the muscles of her neck when palpated. The plaintiff was prescribed Voltaren Rapid for pain relief and was referred to physiotherapy.
16 The plaintiff next attended Dr Foong on 20 April 2004. He recorded that the plaintiff’s neck was slowly getting better, and that she had an improved range of movement.
17 The plaintiff next attended Dr Shao, general practitioner, at the same clinic, on 9 December 2004 complaining of mid and lower back pain. There is no reference to neck pain in the clinical notes. The plaintiff was prescribed Panadeine Forte.
18 The plaintiff next attended Dr Foong on 15 January 2005 complaining of persistent pain in her neck, shoulders and along her spine to the base of her spine. Dr Foong recorded that the plaintiff was being treated by a physiotherapist at that time.[2]
[2]PCB 45
19 The plaintiff next attended Dr Milton, general practitioner at the same clinic, on 3 May 2005. He recorded that the plaintiff was continuing to have neck pain, and was having physiotherapy treatment. As far as I can ascertain from the clinical notes, the plaintiff attended for treatment for neck pain on 2 June 2005, 9 June 2005, 29 June 2005, 15 August 2005, 23 August 2005, 2 September 2005, 12 December 2005, 19 April 2006, 21 April 2006, 10 July 2006, 20 February 2007, 10 June 2008, and 12 June 2008.[3]
[3]The notes are cryptic. There may be other attendances which are relevant to complaints of neck pain. The relevant clinical notes are at DCB 242-253.
20 The clinical notes also reveal:
· The plaintiff was having physiotherapy, but the last mention of physiotherapy in the clinical notes is 9 June 2005.[4] On that occasion, the plaintiff was prescribed Mobic, which I understand is an anti-inflammatory.
[4]DCB 245
· The plaintiff was prescribed Tryptanol on 29 June 2005. The plaintiff stopped using Tryptanol by 2 September 2005. My impression is that it was prescribed as an analgesic.[5]
[5]DCB 246
· On 19 April 2006, the plaintiff complained of jaw pain, which Dr Milton considered to be a temporomandibular joint dysfunction. He wrote to the defendant on 21 April 2006 seeking payment for medical assistance to treat that condition.[6]
[6]DCB 247
· On 10 July 2006, Dr Milton provided the plaintiff with a letter of referral to Dr Moran, rheumatologist.[7]
[7]DCB 248
· On 10 August 2007, Dr Milton made a note that the plaintiff was working two days a week, and “will need mental care plan”. It is the first reference to any psychiatric problems experienced by the plaintiff.[8]
· On 10 June 2008, Dr Drinkwater, general practitioner at the same clinic, was asked by the plaintiff for a referral to an osteopath or a myotherapist. Dr Drinkwater referred the plaintiff back to Dr Milton on 12 June 2008. He refused to provide the plaintiff with a referral for alternative medical treatment. He noted that she either had, or intended to attend one privately. Dr Milton referred the plaintiff to St Vincent’s Hospital for a rehabilitation assessment in the following week.[9]
[8]DCB 249
[9]DCB 250
21 A number of reports and letters of Dr Milton have been reproduced in the Plaintiff’s Court Book. The only one which describes the conditions, for which she sought treatment from Dr Milton and others at his clinic, is dated 3 October 2011. It is very short and not overly informative. It, and his other letters, say little more than I have summarised from the clinical notes.[10]
[10]PCB 27-29b
22 The plaintiff attended Dr Moran in September 2006. Dr Moran examined the plaintiff. She found tenderness through the plaintiff’s neck and upper back which was not localised, and that there was quite a good range of movement, but some spasm at times in the trapezius muscles bilaterally. Neurologically, the examination was normal. She recommended that the plaintiff attend for pain management. Dr Moran suggested that the plaintiff use analgesics, but the plaintiff’s reaction to that advice was to state adamantly that she would not take drugs.[11]
[11]PCB 33-34
23 The plaintiff saw Dr Walker, general practitioner, at a different medical clinic some time in 2007. She referred the plaintiff to Dr Mitchell, physician, who saw the plaintiff in March 2007.[12] He obtained a history from the plaintiff that she was suffering from chronic bilateral neck pain which he considered to be at the C4-5 and C5-6 joint distribution. The results of his examination of the plaintiff were essentially normal. However, he considered that the plaintiff was suffering from facet joint pain. He considered that she was a candidate for radio-frequency neurotomy. He applied to the defendant for funding for treatment. It is not clear whether the defendant agreed to provide funding, but what is clear is that the plaintiff refused to have the treatment. She described the treatment as “very invasive” and an “unnatural treatment”. She preferred to manage her neck pain by using over-the-counter medication, such as Panadol, Nurofen, anti-inflammatory creams, heat packs and massage, and also by a avoiding activities which might provoke more neck pain.[13]
[12]PCB 30
[13]PCB 9
24 The next level of treatment which the plaintiff undertook was through a service provided by Mikado Pty Ltd, which is a company through which a support service is conducted. She was referred to it by Centrelink. The purpose of the referral was to provide the plaintiff with a personal support program to overcome barriers to employment. The plaintiff attended monthly from 10 September 2007 to 30 June 2009, but did not receive full psychological services, but case management and referral. Mr J Heanue, psychologist, wrote a letter on behalf of the company dated 29 June 2011 in which he said that the company did not keep a clinical file on the plaintiff, and he was therefore unable to provide a diagnosis or prognosis of the treatment of the plaintiff.[14]
[14]PCB 46
25 The next level of treatment which the plaintiff undertook was at the Epworth Rehabilitation Centre in Camberwell, to which she had been referred by Dr Milton. She underwent an assessment on 14 July 2008 conducted by Ms V Carr, psychologist. Ms Carr considered that because the plaintiff was experiencing significant mood, motivation, energy and sleep issues, that it might result in a poor response to rehabilitation. She recommended a four-week pre-program consisting of medical and psychological reviews.[15]
[15]PCB 44e
26 The plaintiff said that she engaged in a pre-program. She was seen by physicians and psychologists. Part of the treatment was the prescription of anti-depressants. At the end of the pre-program, the plaintiff said that she was told that she was not ready to undertake the full program because of her psychological condition, and that she required psychological treatment.[16]
[16]Transcript 23-24
27 However, the plaintiff’s description of having engaged in the pre-program is not borne out by correspondence from the Epworth Rehabilitation Centre. Dr Bala, physician, wrote to Dr Milton by letter dated 29 July 2008, noting that the plaintiff complained of increased pain after an initial physiotherapy session, and that she was not keen on taking the Cipramil which he wanted to prescribe her to contain her anxiety.[17]
[17]PCB 41 and DCB 14
28 Ms D Presser, psychologist, wrote to the plaintiff by letter dated 19 December 2008 reminding the plaintiff that she had not attended several psychology sessions which had been scheduled for her following an initial psychology session on 21 November 2008. Ms Presser recommended that the plaintiff return to her general practitioner for management of her psychological condition.[18]
[18]PCB 38
29 The plaintiff saw Mr Hedger, physiotherapist, on 15 November 2010 and underwent six sessions of physiotherapy treatment which resulted in an improved range of movement in her neck and reduction in the frequency and severity of the pain she was experiencing. It would appear that it was thought that the plaintiff would be better treated through a pain management program. Mr Hedger’s treatment then ceased.[19]
[19]PCB 35-36
30 The cessation of the physiotherapy treatment came about as a result of the intervention of Professor Helme, neurologist, who assessed the plaintiff on 17 March 2010 and 7 February 2012 at the Epworth Centre in Richmond. It would appear that Professor Helme was engaged on a medico-legal basis by the solicitors for the plaintiff, but it was his findings which were used by the defendant to review the management plan of Mr Hedger.
31 In any event, Professor Helme took a reasonably long history from the plaintiff. He provided a report dated 7 February 2012 following his examination of the plaintiff on that day. He considered that the plaintiff was suffering from a cervicogenic pain syndrome which had ameliorated somewhat since he first saw her. He considered that she demonstrated elements of Post-Traumatic Stress Disorder and some mild temporomandibular disorder. In the end, he considered that the consequences of her injury in terms of disability were relatively minor, and he considered her Post-Traumatic Stress Disorder to be more relevant for treatment purposes than any physical injury to her spine. He saw no impediment to the plaintiff resuming employment, but deferred to the opinion of a psychologist regarding whether her psychological condition had any impact upon her capacity for work.[20]
[20]PCB 69-72
32 The plaintiff obtained some further psychological treatment. She was referred to Ms Wilson by Dr Crawford, general practitioner. The plaintiff saw Ms Wilson, psychologist, on 16 May 2011. She considered that the plaintiff was suffering from chronic Anxiety and Depressed Mood.[21] Ms Wilson obtained a history from the plaintiff that she had become disengaged and socially withdrawn; irritable; angry and resentful; had experienced changes with her energy; her mood levels were often quite low; suffered interference with attention and concentration; had a disturbed sleeping pattern; had difficulty making decisions and remaining positive, and was pessimistic. Ms Wilson had the plaintiff undertake a Beck’s Depression Inventory, which demonstrated that the plaintiff had signs and symptoms of Depression and a sense of hopelessness; worthlessness; interrupted sleeping patterns; loss of energy and interest in activities, and a prevailing level of sadness. Ms Wilson considered that the plaintiff required regular psychological counselling sessions to support her.[22] The plaintiff saw Ms Wilson only three times.[23]
[21]PCB 47-48
[22]PCB 47-48
[23]PCB 12
33 Dr Crawford referred the plaintiff to Dr Muir, chronic pain specialist, for further management in about July 2011. The plaintiff did not keep the appointment. It would appear that Dr Crawford referred the plaintiff again more recently, but she did not follow up that second referral. Dr Crawford also referred the plaintiff to Dr Coleman, osteopath. It would appear that he was concerned about the plaintiff sufficiently to want the plaintiff to obtain specialist input to control her pain, to obtain further psychological assessment and support, and to obtain an opinion from a psychiatrist.[24]
[24]PCB 50a
34 The plaintiff saw Dr Coleman on 25 May 2012. The plaintiff did not refer to the treatment provided by Dr Coleman in her affidavits. It is unclear to me what treatment she obtained from Dr Coleman.
35 It would appear that what I have summarised is the sum total of the treatment which the plaintiff has obtained for her neck injury and her psychiatric injury.
The medico-legal reports
36 This is an unusual case in many respects. The substance of the plaintiff’s case is made through the clinical notes and reports of treating medical practitioners and para-medical practitioners. However, the clinical notes and reports I have reviewed in paragraphs 13 to 33 are not very edifying. The plaintiff has seen a number of medical practitioners and para-medical practitioners for treatment, but none of them have provided a current opinion regarding the nature and extent of the plaintiff’s neck injury or her psychiatric injury.
37 It is for that reason that it is necessary to now look closely at the medico-legal reports because it is there that the plaintiff says is the medical evidence which supports the conclusion that the impairment consequences of psychiatric injury are severe.
38 The first psychiatrist the plaintiff saw was Dr Strauss. She saw him on 17 June 2008. On examination, Dr Strauss found the plaintiff to be an extremely withdrawn, emotional young woman. Her thinking was negative. She was depressed and anxious. Her eye contact was not good. He considered that she had suffered from Post-Traumatic Stress Disorder symptoms with Mixed Anxiety and Depressed Mood. Dr Strauss considered that the plaintiff had suffered a five per cent primary psychiatric impairment based upon his diagnosis of post-traumatic stress symptoms, and a fifteen percent secondary psychiatric impairment based upon his diagnosis of an Adjustment Disorder.
39 Dr Strauss considered that the plaintiff needed to do a pain management course with intensive psychological assistance, and that she needed to learn relaxation therapy. He thought that she would probably benefit from the use of anti-depressants. He noted that she refused to use medication.[25]
[25]PCB 60-61
40 Dr Kaplan, psychiatrist, examined the plaintiff on 21 September 2010, 1 February 2012 and 11 July 2013. His last report is representative of his overall opinion of the plaintiff’s psychiatric condition. On examination, he considered that the plaintiff was pre-occupied with her injuries; she had intrusive thoughts and flashbacks of the transport accident; she was behaving compulsively; she appeared depressed and withdrawn, and was tearful, on occasions expressing despair regarding her condition and her future.
41 Dr Kaplan considered that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to chronic pain and the physical limitations imposed upon her by her pain. He referred to the plaintiff having lost her libido; lacking drive; being prone to fatigue; being socially withdrawn; having episodes of panic; suffering low self-esteem, and having thoughts of suicide.
42 Dr Kaplan considered that the plaintiff’s Obsessive-Compulsive Disorder which she described to him was probably triggered, but not caused, by the transport accident. He considered that it had a major impact on her lifestyle because it was interfering with her ability to venture out and was an additional burden for her to carry.[26]
[26]PCB 107-112
43 In his second report, he considered that it was appropriate for the plaintiff to be referred to a psychiatrist for treatment, which would involve cognitive behaviour therapy for her Obsessive-Compulsive Disorder and panic attacks, and supportive psychotherapy and psychotropic medication.[27] He confirmed that opinion in his third report.
[27]PCB 105
44 The plaintiff has had very little treatment for her psychiatric condition despite encouragement given to her by a number of medical practitioners to pursue treatment to ameliorate the symptoms which she says she experiences. It was a criticism which Mr Masel made of the plaintiff, that she had ignored the advice she had been given to have treatment. I will return to that subject when I summarise Mr Masel's cross-examination of the plaintiff.
45 Dr Hayman, psychiatrist, examined the plaintiff on 14 September 2012 for the defendant. On examination, he found that the plaintiff’s affect was depressed, but reactive, appropriate and she was communicative. He found her thoughts were centred on her physical pains and the impact which her pains had on her day-to-day life. He noted that she had felt that life was not worth living, but had no active suicidality. He considered that her insight was poor, that she had little clear understanding of her psychological issues, and was disinclined to have psychological or psychiatric treatment, preferring to have what she described as natural treatment driven by her fear of dependence on mind-altering drugs.
46 Dr Hayman was of the opinion that the plaintiff was suffering from a Chronic Pain Disorder associated with both psychological factors and a general medical condition, and also a Chronic Adjustment Disorder with Depressed and Anxious Mood. He considered that she had evidence of significant depressive symptomatology. He considered that with aggressive treatment of her mood disorder, that there was significant scope for improvement, and that she also needed to engage in treatment at a well regarded multidisciplinary pain clinic. He was apprehensive that the plaintiff might become entrenched in a sick role given the effluxion of time since the occurrence of the transport accident.[28]
[28]DCB 22-29
47 The plaintiff was also examined by Mr Khan, orthopaedic surgeon, on 7 July 2008[29] and 8 May 2013; [30] Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 23 August 2011,[31] 26 September 2012[32] and 2 July 2013;[33] Dr Blombery, physician, on 4 August 2011,[34] and Dr Fraser, rheumatologist, on 7 September 2012.[35] I will not summarise their evidence, because they were engaged to examine the plaintiff and to provide opinions relevant to her neck injury, although there are aspects of their opinions which are somewhat relevant to the cross-examination conducted by Mr Masel which I shall make comment on.
[29]PCB 73-81
[30]PCB 82-90
[31]PCB 114-117
[32]PCB 118-120
[33]PCB 121-122
[34]PCB 123-126
[35]PCB 18-21
48 Mr Khan noted that the plaintiff had non-organic features which she described as Depression and Anxiety.[36] As early as his first examination of the plaintiff, Dr Thomas considered that the plaintiff needed concerted psychotherapy to give her a sense of self and to treat her underlying emotional problems. He also described her approach to medical treatment as “chaotic” and “inadequate”.[37] Dr Thomas was of the opinion that the plaintiff was fit for limited work of 20 to 24 hours per week, in office work in a sedentary or ergonomically well set up position. I assume he expressed that opinion based upon the plaintiff’s clinical presentation of an actively symptomatic and disabling neck injury.[38]
[36]PCB 79 and 88
[37]PCB 116, 120 and 122
[38]PCB 119-122
49 Dr Blombery’s opinion is not dissimilar to that of Dr Thomas. His attention was directed to the plaintiff’s neck injury. He was of the opinion that the plaintiff had suffered a whiplash injury to her neck which he considered to be an organic pain disorder of nerve pathways, but he also was of the opinion that the plaintiff had developed Depression and Anxiety. He considered that the plaintiff required treatment through multidisciplinary therapy for chronic pain; the use of analgesic, anti-depressant and anti-convulsant drugs; physiotherapy; behavioural therapy, occupational therapy and other treatment techniques. He considered that her capacity for employment was significantly reduced because of the pain in her neck and shoulder.[39]
[39]PCB 125-126
50 Dr Fraser was of the opinion that the plaintiff did not have an ongoing injury of a physical nature which he could detect. He considered that the residual pain which the plaintiff reported to him was largely due to non-organic factors. He considered that the plaintiff might have an Adjustment Disorder with Anxiety and Depression and/or a Post-Traumatic Stress Disorder secondary to the original injury, and that loss of earning capacity was due to a psychologically-based Chronic Pain Syndrome.[40]
[40]DCB 20
The Plaintiff’s evidence
51 The plaintiff swore two affidavits on 7 September 2011 and 23 August 2013 in which she described the impairment consequences of her neck injury and the impairment consequences of the psychiatric injury in significant detail.
52 In her first affidavit, the plaintiff described her neck injury as having a profound impact on almost every facet of her life. It is an extreme statement of the impairment consequences of her neck injury. She described that everyday activities are painful and difficult for her, and on my reading of her affidavit, it would appear that there was no aspect of her social, domestic and recreational life left unaffected. More particularly, the plaintiff described an impact upon her capacity to pursue work and study, a subject on which Mr Masel concentrated his cross-examination, and a subject I will return to later in these reasons.
53 In a similar manner, the plaintiff painted a picture of herself as a “bright and happy person” before the transport accident, and as a consequence of it, she said “I had become severely depressed and anxious”. The plaintiff described some of the treatment which she was provided for her psychiatric injury. She described feeling suicidal at times and that her “depression has had a profound effect on my life”. Further, she referred to herself as being happy, social, involved in a long-term relationship and excited and energetic about her career change, and that the transport accident had left “a dark cloud over almost every aspect” of her life.
54 The curious nature of the plaintiff’s claim that the psychiatric injury has resulted in consequences which are severe, is based almost entirely upon medico-legal opinions. There is very little in the opinions of those who treated the plaintiff which supports the conclusion that the psychiatric injury has had the consequences described by the plaintiff, and to the degree described by her.
55 The initial treatment provided by Dr Foong, Dr Shao and Dr Milton was treatment directed to the plaintiff’s neck injury. Dr Milton prescribed the plaintiff Tryptanol on 29 June 2005, but having regard to the context in which it was prescribed, it would appear to have been prescribed for treatment for the plaintiff’s neck injury and not for a psychiatric injury.
56 In her first affidavit, the plaintiff referred to being prescribed Tryptanol by Dr Milton. Such reference was made in the part of the affidavit devoted to the onset of the psychiatric injury, as if to say that it was prescribed to treat symptoms of an emerging psychiatric injury. By August 2005, the plaintiff was suffering from symptoms of a psychiatric injury because Dr Milton wrote a short report dated 23 August 2005 to the defendant describing the plaintiff as having suffered Depression, loss of self-esteem and a Post-Traumatic Stress Disorder. Despite the emergence of those of symptoms, the plaintiff discontinued using Tryptanol some time in August 2005. She has not been prescribed or taken any form of medication to treat the degree of symptoms of psychiatric injury which she alleges in her affidavits and in her oral evidence.
57 Dr Milton, and the other medical practitioners at his clinic, ceased treating the plaintiff altogether by 12 June 2008. The plaintiff attended for treatment of her neck injury, but my reading of the clinical notes between August 2005 and 12 June 2008 reveal very little regarding complaints made by the plaintiff of symptoms of a psychiatric injury.
58 The next treatment the plaintiff says she was provided for her psychiatric injury was from Mr Heanue. The description she has given of the involvement of Mr Heanue gives the impression that he treated her, but the only report from him gives a very different complexion of his involvement with the plaintiff. He said:
“ Deanna did not receive a full psychological service from our organisation, but rather a case management and referral service.”
59 The plaintiff saw Mr Heanue from 10 September 2007 to 30 June 2009 in his role as a case manager. Mr Heanue was unable to give a report outlining a diagnosis, prognosis or treatment of the plaintiff’s injury because of the limited nature of his relationship with her, which I take to mean a relationship of a case manager undertaking a referral service for her benefit, not as a treating psychologist. In any event, there is nothing in the material in Mr Heanue’s report to verify the plaintiff’s statement in her first affidavit that she received treatment from him.
60 The next treatment the plaintiff says she obtained was from Ms Wilson, psychologist. The plaintiff saw her on three occasions. The only other exposure the plaintiff had to a psychologist was at the Epworth Rehabilitation Centre commencing with an assessment on 14 July 2008.
61 Despite the plaintiff being given the benefit of opinions that she has a psychiatric injury and should pursue appropriate treatment, she has not done so, and indeed, refuses to do so. That became very evident during cross-examination.
62 During cross-examination, the plaintiff said that she had explored a lot of avenues of treatment. She referred to seeing medical practitioners, physiotherapists, rheumatologists and doing pain management. She said that her treating medical practitioners had told her that “this is kind of the end” and that there was essentially nothing else that could be offered to her. It was that reason given by the plaintiff, that she said prompted her to seek osteopathic, acupuncture and physiotherapy treatment.[41] However, it appears to me that the plaintiff did not pursue the treatment she was offered. That is evident from the letter written to her by Ms Presser on 19 December 2008 reminding the plaintiff that she had not attended several psychology sessions.
[41]Transcript 22-23
63 The same appears to have occurred with Ms Wilson. The plaintiff said that after three psychology sessions with her, it was something of a mutual decision between herself and Ms Wilson that she not to have any further psychology sessions with her.[42] The plaintiff appeared to consider that the psychological sessions were pointless. She said:
“So I saw Mrs Shirley Wilson for a few times and I just feel like I talk and they listen but they don’t help me, give me any suggestions to get around the problems that I have. And my depression, it’s just they listen and I cry and get it out. It’s confronting for me, it’s very draining and confronting and it’s been difficult for me to talk openly about my depression and that kind of thing because it just brings it to the surface, but I just don’t have any solutions to solve it and I haven’t found that with – maybe other psychologists, different psychologists could help. I don’t know.”[43]
[42]Transcript 25
[43]Transcript 24-25
64 In her second affidavit sworn 23 August 2013, the plaintiff said that she has not had any psychological sessions since leaving the care of Ms Wilson, and that she has avoided having psychological treatment. Furthermore, she said that she has refused to take anti-depressant medication because the thought of having her mind altered by drugs scares her, and that she has heard that anti-depressant medication only numbs feelings and can make a psychiatric condition worse.[44]
[44]PCB 14c
65 In both of her affidavits, the plaintiff described the consequences of her psychiatric injury as follows:
· Difficulty sleeping. Lying awake thinking about the transport accident
· No longer being happy and sociable
· Serious strain on her relationship with her partner, David Shirley, and in particular, the loss of her sexual relationship with him and a loss of libido
· An incapacity for work
· Frequently feeling down, suicidal and moody
· Difficulty leaving her house
· Suffering anxiety and panic attacks
· Impairment of memory and concentration because of depression
· Unable to travel as she hoped she would, and not enjoying a recent trip to America with her partner.[45]
[45]PCB 13 and 14c-14e. This summary of the plaintiff’s consequences is also to be found in the histories taken by the examining medical practitioners who commented on the plaintiff’s psychiatric condition.
The cross-examination
66 During cross-examination, Mr Masel challenged some of the substantial aspects of what the plaintiff represented are the impairment consequences of the psychiatric injury. One such challenge was the plaintiff’s evidence that she has suffered serious strain on her relationship with her partner, David Shirley, and in particular, the loss of her sexual relationship with him and a loss of libido. In that respect, she said, in her first affidavit:
“Our sex life has been greatly affected by both the pain of my physical injuries from the car crash and by my loss of libido which I believe is a result of the depression from the car crash. Whereas before we had had a satisfying sex life, now we engage in sexual activity very infrequently.”[46]
[46]PCB 13
67 The plaintiff was given a copy of the clinical notes of Ms Wilson. The principal part of the clinical notes which the plaintiff’s attention was directed to are notes taken by Ms Wilson on 30 May 2011 which the plaintiff accepted as the history she gave.[47] The relevant parts of that history are that although the plaintiff shares the same bed as her partner, they do not have sexual intercourse. It is as if there is an invisible pillow between them. The notes also reveal that the plaintiff has not had intercourse and is a virgin.[48] The plaintiff admitted that she said much the same to Dr Foong, that she has never been sexually active.[49]
[47]Transcript 41
[48]DCB 177
[49]DCB 243
68 The plaintiff sought to explain what she meant by her reference to the detrimental effect upon her sex life and libido. She said:
“ Well, we’ve never had sex ever, but we have sexual interactions, so whatever, foreplay, whatever you want to call that. Before the accident, there was a lot of that going on, after the accident there’s just nothing, so there’s not, maybe once or twice a year there’s some kind of sexual interaction. There’s no kissing or hugging or affection or foreplay or anything like that.”[50]
[50]Transcript 42 and earlier at 32
69 The plaintiff said that the sexual relationship she had with her partner was as I have just quoted from her evidence. However, that is not what a fair reading of the affidavit discloses. It is not what she conveyed to a number of psychiatrists who examined her.
70 Dr Strauss recorded that the plaintiff told him that her relationship with her partner had suffered after the transport accident, and she told him she “does not have a sexual relationship”. It appears to me that it was said by her to mean that it was as a consequence of the psychiatric injury.[51] Although, admittedly taken on its own, what the plaintiff said to Dr Strauss may be equivocal.
[51]Transcript 59
71 Dr Kaplan recorded that the plaintiff told him that her libido had diminished and that she had become less sexually active when compared to what she was like previously. It was something which he considered relevant in the formulation of his opinion of the plaintiff’s psychiatric state because he referred to the plaintiff’s loss of libido as part of the evidence in support of the opinion he ultimately expressed.[52]
[52]PCB 95, 97, 103, 104, 109 and 111
72 Dr Hayman recorded that the plaintiff had been in three relationships, with the present one being of nine years’ duration. He asked the plaintiff about her libido, but she refused to make any comment about it.[53]
[53]DCB 24 and 25
73 The next challenge was the plaintiff’s evidence that she was absent for two to three months from a course she commenced in February 2004 with Napoleon Perdis. It was a part-time course conducted over Thursdays and Fridays from 10:00am until 4:30pm.[54]
[54]Transcript 26
74 Mr Masel took the plaintiff through a number of documents for the purpose of demonstrating that she was not absent from the course for two to three months. In summary, he referred her firstly to a number of late passes which the plaintiff was required to submit if she was late:
· 14 May 2004, late due to traffic and parking
· 20 May 2004, late because she was waiting for furniture to be delivered
· 1 June 2004, late because she was stuck behind many trams and trains
· An undated late pass that she was late because of unpredictable traffic
· 9 July 2004, late because she was tired
· 23 July 2004, late because she was held up by a physiotherapist
· 26 August 2004, late because she attended a job interview
· 10 September 2004, late because of traffic
· Two late passes dated 28 October 2004. She was late in the morning due to an emergency, and late back from lunch because she was held up at a shop
· An undated late pass that she was late because she was held up by a physiotherapist
· 19 November 2004, late because of an appointment.[55]
[55]DCB 134-138
75 Mr Masel then referred the plaintiff to a schedule which set out unexplained absences by the plaintiff from the course on 13 and 28 May; 3, 23 and 30 September; 7, 8, 10, 22, 28 and 29 October; 5, 11, 25 and 26 November, and 2, 9 and 10 December 2004. The total number of days the plaintiff was absent according to the schedule was 18 days.
76 The plaintiff questioned the accuracy of the schedule and the competency of the people running the course. She said that there were “long months” when she did not attend the course. The plaintiff was also critical of the medical practitioners who she was seeing who would not give her long certificates, for example for six months straight, but required her to attend and would only give her certificates for a few days at a time.[56] It would appear that the plaintiff attributed her absences from the course to her neck injury.[57]
[56]Transcript 29-31
[57]Transcript 39
77 Mr Masel then referred the plaintiff to some medical certificates which she obtained in 2004:
· 6 April 2004 – the Box Hill Hospital certifying that she was unfit to work from 6 to 11 April 2004
· 13 April 2004 – Dr Foong certifying that she was unfit for work from 13 to 17 April 2004
· 20 April 2004 – Dr Foong certifying that she was unfit for work from 20 to 23 April 2004
· 11 August 2004 – Dr Foong certifying that she was unfit for work/study from 12 to 13 August 2004.[58]
[58]DCB 134-135
78 It would appear that the certificate from the Box Hill Hospital resulted in the plaintiff being absent for one day of the course, being 8 April 2004, which was a Thursday. 9 April 2004 was Good Friday and was likely to have been a public holiday.
79 The certificate dated 11 August 2004 was provided to the plaintiff because she had a problem with alcohol, believing that a drink she had consumed had been spiked.[59] It had nothing to do with her injuries.
[59]Transcript 28
80 Mr Masel took the plaintiff to the policy of the course which required the plaintiff to provide a medical certificate to verify reasons for an absence if it was due to ill health. Apart from medical certificates referred to above, no other medical certificates were produced by the plaintiff to Napoleon Perdis to explain the absences recorded in the schedule.
81 The plaintiff was very critical of the people who conducted the course. She said they were ill-equipped to deal with people with medical problems; they were unsympathetic to her; they did not understand that her neck injury made it difficult for her to hand in assignments; that the course was not a professional course when compared with the university; that the people running the course acted unfairly, demanding that she hand in an assignment in two days which was an assignment she had not handed in on time; that she was struggling because of her neck injury and that she felt that she was beaten down.[60]
[60]Transcript 37-39
82 However, the allegations made by the plaintiff did not appear to me to be borne out by the correspondence I was taken to. The course coordinator wrote to the plaintiff on 17 May 2004, bringing to her attention that she had failed to attend a class on 13 May 2004, and that it was compulsory that a medical certificate be provided, otherwise the absence would be noted as an unexplained absence.[61]
[61]DCB 130
83 The plaintiff received a further letter dated 18 October 2004 informing her that the maximum allowance for unexplained absences from the course was 10 days, and that she had reached the maximum allowable absences. She was warned that further absence would not be tolerated. She was referred to the student handbook which provided that absence due to illness had to be supported by a medical certificate.[62]
[62]DCB 131
84 The plaintiff was telephoned by an administrator of the course on 15 December 2004, who recorded the substance of the conversation she had with the plaintiff regarding her failure to submit remaining practical assignments, and unless she did so she would not have her diploma conferred. The notes of the interview reveal that the plaintiff said that the attitude of the people running the course was unfair and that she intended to contact a lawyer.[63]
[63]DCB 133
85 The plaintiff received a further letter dated 11 January 2005 informing her of her failure to submit remaining practical assignments, and her failure to attend classes. She was warned that unless she rectified those problems, that she would be deemed to have dropped out of the course.[64]
[64]DCB 132
86 Mr Masel referred the plaintiff to a discharge letter of The Alfred hospital Emergency Department where the plaintiff was treated on 8 August 2004. The attending medical practitioner noted that she did not enjoy her course and was out of work.[65] The foregoing was put to the plaintiff. She said that she did not enjoy the course following the transport accident because the practical exercises then became hard for her to undertake, and she had difficulty focussing on the course.[66]
[65]DCB 16
[66]Transcript 34-35
87 The next challenge was to the plaintiff’s evidence that she was an “avid artist”. In her first affidavit, she described the great enjoyment she obtained in creating art. She then said that since the transport accident, and because of the neck injury, she was forced to give up drawing, and that the pain she experiences from her neck injury “has generally ruined all enjoyment I have in this activity”.
88 However, when the plaintiff was cross-examined, her evidence was remarkably different. She said that she was not doing any artwork at the time the transport accident occurred. She only started doing it to find something to motivate her after the occurrence of the transport accident. She has produced four or five drawings. She has not been able to complete artwork which made her very upset and depressed. Furthermore, it was put to her that her oral evidence was in contrast to what she said to Dr Strauss, who recorded that at the time when he examined her, he asked her what she did “all day” and he recorded that she said she did some drawing.[67]
[67]PCB 58
89 The plaintiff has engaged in some work since the transport accident occurred:
· In September 2004, she did some part-time work as a make-up promoter with Myer and David Jones, working one or two four-hour shifts per week over a one-month period.
· In 2006, she worked for a retail clothing store known as “Liquid” two or three days a week from 10:00am to 6:00pm. It would appear that the plaintiff worked for that employer for two or three months.
· In late 2006, the plaintiff obtained work as an administrative assistant for a packaging company one or two days a week, eight hours each day of work.
· In 2010, the plaintiff undertook contract workers as an extra in film and TV. The hours are varied. The longest she worked in any one week was 22 hours.[68]
[68]PCB 11
· In 2012, the plaintiff obtained work in an administrative position with Einhell Australia Pty Ltd. She worked up to three days per week. The job finished in September 2012, although she undertook some casual work for that company until January 2013.
· The plaintiff set up an online internet business selling photographs, which is something she has done over many years. She has made about $50 from a business over the last five years.[69]
[69]PCB 14c-14d
90 The plaintiff has undertaken some travel since the transport accident occurred. She has travelled to Tasmania, Perth[70] and to the United States of America. She travelled to the United States recently with her partner.[71] The plaintiff said that she travelled to Tasmania by ship. It was not a restful journey. She found it uncomfortable to sleep, which I assume means because of neck injury. She described the plane trip to the United States as being incredibly tough and painful, in that sitting in one position for so long was excruciating. The impression I have from her descriptions of the travel she has undertaken, is that it was the pain presumably from her neck injury, which substantially interfered with what enjoyment she was able to obtain from those trips.
[70]Transcript 44
[71]PCB 14d-14e
91 At present, the plaintiff is occupied doing very little. It would appear that she spends most of her time at home. She enjoys playing computer games.[72] She is not having any medical treatment for her psychiatric injury. The only medication she now takes are muscle relaxants and anti-inflammatory medication. She said she uses a medication known as Norgesic.[73] In her second affidavit, she referred to using Celebrex, which she did not find helpful. The medication the plaintiff presently takes appears to be directed to treatment of the neck injury.
[72]Transcript 44
[73]Transcript 44. Norgesic is used a muscle relaxant and for pain relief
The Issues
92 The issues raised by Mr Masel can be summarised as follows:
· The plaintiff has suffered a psychiatric injury
· The psychiatric injury does not meet the statutory test under s93(17) (c)
· The plaintiff is neither a creditworthy or reliable witness.
Findings
93 I will firstly deal with the issue of whether the plaintiff is a creditworthy and reliable witness.
94 The plaintiff’s first affidavit is drawn in rather extravagant terms. To describe the neck injury as having a profound impact on almost every facet of her life appears to me to be excessive. If that were so, and I accepted the descriptions given by the plaintiff of the impairment consequences of the neck injury, it would be difficult to conclude otherwise than those impairment consequences are serious.
95 However, there are features of the plaintiff’s evidence relevant to her neck injury which I consider to be misleading. For example, in her first affidavit, the plaintiff went to the extent of describing driving a car; self-care, such as showering and brushing her teeth; washing her hair, and even carrying a handbag over her shoulder, as enough to provoke disabling pain in her neck. Furthermore, she described a dramatic impact upon her capacity to maintain a level of fitness; attend a gymnasium; undertake domestic tasks, and even small amounts of house work; undertake cooking; undertake shopping; obtain a restful night’s sleep, and pursue her course of study and work for which she is qualified by training and experience.[74]
[74]PCB 7-8,10-12 and 14b
96 However, there is very little support in the medical evidence to verify that the plaintiff has a neck injury of such magnitude to cause her such a significant degree of disablement which justifies the extravagant manner in which the impairment consequences of the neck injury are described in her affidavits.
97 There are aspects of the plaintiff’s claim that she has suffered impairment consequences of her psychiatric injury which I consider to be misleading. The first of those is her description of the treatment she has obtained for her psychiatric injury. The manner of its description gives the impression that she obtained significant treatment, but when what she said in her first affidavit is examined closely and carefully, a very different picture emerges.
98 I have dealt with that in some detail in a summary I have given of the treatment afforded by Dr Milton, Mr Heanue, Ms Wilson and the Epworth Rehabilitation Centre.
99 The treatment provided by Dr Milton appears to me to be very modest. The only evidence adduced from Dr Milton are some extremely short and cryptic reports which are barely edifying, and his clinical notes, which are likewise not very edifying. They do not give the impression that the plaintiff was labouring under impairment consequences of the psychiatric injury which deserve the description “severe”.
100 The plaintiff intended to represent to the reader of her first affidavit that she had suffered a dramatic and severe psychiatric injury which required treatment of significance. The vice, however, is that the description given by the plaintiff of her treatment is misleading. It is quite clear that her treatment at the hands of Dr Milton was modest, and it is unclear to me whether his prescription of Tryptanol was as a muscle relaxant or to treat an emerging psychiatric injury. It is quite clear that Mr Heanue did not treat the plaintiff, but rather provided her with vocational advice. It is also quite clear that Ms Wilson’s treatment of the plaintiff was modest and fleeting.
101 Similarly, the plaintiff’s evidence that she obtained psychological treatment through the Epworth Rehabilitation Centre falls dramatically short of an accurate description of her involvement with it, and is misleading. The letter from Ms Presser demonstrates that the plaintiff was offered psychological counselling, but simply did not attend as required.
102 The plaintiff’s description of the interference by her injuries with her sex life is also misleading. Although, Mr McGarvie attempted to have me interpret what the plaintiff said in her first affidavit consistently with what the plaintiff ultimately said about the interference with her sex life, I am left with what she said in her first affidavit. Which was intended by her to represent that she engaged in sexual activity with her partner in the fullest sense, not just limited to what the plaintiff described as something like foreplay.
103 The plaintiff’s description of the interference by her injuries with her capacity to engage in the course is also misleading. The documents tendered from the file of Napoleon Perdis do not support the plaintiff’s evidence that she was absent from the course for two to three months because of her injuries. It appears to me that on some occasions when the plaintiff was absent from the course or was late, she provided medical certificates and late passes, but the unexplained absences referred to in the correspondence demonstrate that she was absent and was not meeting the requirements of the course often. It also appears to me that the plaintiff was probably not interested in completing the course. I think there is something in the history given to the medical practitioner at The Alfred hospital that she was not enjoying the course seems to be the only other explanation for why she failed to attend, as she was required to, and failed to submit coursework she was required to.
104 I do not accept the plaintiff’s evidence that the people running the course were as amateurish a she describes them, and that the course was an unsophisticated ‘fly by night’ course. I have carefully read all of the course materials which were tendered,[75] and it appears to me that the course was far from amateurish and appears to me to be sophisticated, and in particular, in its course advice to students of their obligations relevant to attendance and submission of coursework.
[75]DCB 88-167
105 The plaintiff’s evidence that she was an avid artist was intended to represent to the reader that it was a significant part of her life prior to the occurrence of the transport accident, and was all but destroyed because by her injuries. That is also misleading. She resorted to art after the occurrence of the transport accident.
106 Each of these matters are significant, in that they seriously affect my impressions of the plaintiff as being a creditworthy and reliable witness. The plaintiff’s evidence of the medical treatment she has obtained is misleading because of what it does not say. The truth emerged during the course of her cross-examination, and after I had the opportunity to read the clinical notes and reports, particularly of Dr Milton, Mr Heanue, Ms Wilson and the correspondence and reports of the Epworth Rehabilitation Centre. They do not demonstrate the nature and extent of the treatment which the plaintiff represented she was having in response to what she described as severe Depression and Anxiety and a Post-Traumatic Stress Disorder.
107 It appears to me that the plaintiff has represented that she has suffered consequences of the psychiatric injury of significant magnitude. Her purpose in describing medical treatment; her loss of sex life; her alleged failure to be able to undertake the course, and being an avid artist, were intended to convey to the reader the manifestations or that they were impairment consequences of the psychiatric injury.
108 The question I need to ask now is whether the misleading nature of that evidence is of such seriousness that I can have little or no confidence in accepting the plaintiff’s evidence overall of the magnitude of the impairment consequences of the psychiatric injury.
109 The approach I believe I must take is to look at all of the evidence, and in doing so, to try to put into some context the misleading nature of the plaintiff’s evidence rather than simply discounting the whole of the plaintiff’s evidence because of the findings I have made about her creditworthiness and reliability.
110 The real difficulty I have in accepting much of the medical evidence is basically twofold. Firstly, the evidence of the persons who treated the plaintiff is very modest, and I must say, unedifying. Secondly, the evidence upon which the plaintiff relies comes from medico-legal examinations. Whilst I do not suggest that a case based only on medico-legal examinations inevitably fails, it may well fail where the medico-legal examinations are based upon the histories given by a plaintiff which are misleading. Inevitably Dr Strauss, Mr Khan, Dr Kaplan, Dr Thomas and Dr Blombery have relied upon the histories given to them by the plaintiff of impairment consequences of her psychiatric injury. To the extent that those histories are misleading in some respects, or that the thrust of the plaintiff’s evidence overall has a feeling of being misleading, then it is an impossible task for the trial judge to divine where the plaintiff might be creditworthy and reliable, as opposed to where she is not.
111 I accept that the plaintiff suffered a neck injury. However, I do not accept that it is as serious as the plaintiff represents it is. I accept that the plaintiff suffered a psychiatric injury which may well have components of both a secondary psychiatric injury based on the development of Depression and Anxiety, and a primary component of Post-Traumatic Stress Disorder; however, I do not accept that it is as serious as the plaintiff represents it is.
112 In summary, it seems to me that having reached the conclusion that I cannot accept the plaintiff as being creditworthy and reliable, that it must impinge upon whether I can consequently accept the thrust of the opinions of the medico-legal medical practitioners who are of the opinion that the plaintiff has a psychiatric injury of some magnitude. When I have drilled down into the evidence, what becomes so very evident is that the plaintiff has had very little treatment. She is not taking any medication and represents that the reason why she is not is because she has some fear of the effects of the medication, and that otherwise, having psychological counselling is just engaging in talk which she seems to believe goes nowhere and is of no benefit.
113 The conclusions I have reached regarding the plaintiff’s creditworthiness and reliability, together with the fact that she is having no medical treatment, make it difficult for me to accept that the impairment consequences can be fairly described as “severe”.
114 I have not discounted the affidavits of Mr Shirley sworn 23 October 2012;[76] Mr L McGregor sworn 7 November 2012,[77] and Mr C O’Neill sworn 15 November 2012.[78] They do not cure the conclusions I have reached regarding the plaintiff’s creditworthiness and reliability. Certainly the affidavits of Mr MacGregor and Mr O’Neill refer to observations of the plaintiff’s impairment consequences of her psychiatric injury and her neck injury, which I accept they have observed. Mr Shirley’s affidavit paints a similar picture of impairment consequences of the psychiatric injury and the neck injury. Again, I accept that what he deposes to is what he has observed at close range.
[76]PCB 15-17
[77]PCB 18-20
[78]PCB 21-22
Conclusion
115 In the end, and for the reasons which I have referred to above, I am not satisfied that the impairment consequences of the psychiatric injury are “severe” and do not meet the statutory test.
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