Gray v TAC
[2011] VCC 970
•4 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02964
| DAVID GRAY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1, 4 and 5 April 2011 |
| DATE OF JUDGMENT: | 4 May 2011 |
| CASE MAY BE CITED AS: | Gray v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 970 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Transport Accident Act 1986 s.93(17)(c) – psychiatric condition – Post-Traumatic Stress Disorder – depression – failure to undertake treatment - leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC | Slater & Gordon Ltd |
| with Mr N Dubrow | ||
| For the Defendant | Mr PG Priest QC | Solicitor to the Transport |
| with Mr CGK Madder | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 15 November 2008.
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(c):
“Severe long-term mental or severe long-term behavioural disturbance or
disorder.”
4 The plaintiff claims a severe permanent behavioural or emotional disturbance. The body function relied upon by the plaintiff in this case is a psychiatric impairment.
5 In forming a judgment as to whether the consequences of any injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and “more than significant or marked”?[1]
[1] Humphries v Poljak [1992] 2 VR 129 at 140-1
6 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[2]
[2] (supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
7 The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[4] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[5]
[3] [1998] 3 VR 833
[4] (1995) 21 MVR 314
[5] Mobilio v Balliotis [1998] 3 VR 833 at 846
8 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of subsection (17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[6]
[6] supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
9 The plaintiff relied on five affidavits. Two affidavits were sworn by the plaintiff on 14 October 2009 and 6 October 2010. Two affidavits were sworn by Sandra Jones, the grandmother of the plaintiff, sworn 6 October 2010 and 1 April 2011. A further affidavit of Ross Fleming was sworn 22 March 2011. The plaintiff, Sandra Jones, and Drs Nathan Serry, Wong and Verhoef, were cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Issues
10 Counsel for the defendant informed the Court that it was not accepted that the major component of the plaintiff’s mental disturbance is as a result of the transport accident. Secondly, on the assumption the plaintiff does have a mental disturbance, it is not severe, because it is easily treatable. Thirdly, the mental disturbance is not longstanding because it is easily treatable.
The Plaintiff’s Evidence
11 In his first affidavit sworn on 14 October 2009, the plaintiff deposes that:
• He was born on 7 August 1984. •
On or about 15 November 2008, he was driving along the Maroondah Highway when a car pulled out in front of him and the vehicles collided. The two occupants of the other car died in the collision.
•
He had stiffness in his neck and was taken to Maroondah Hospital, where he was examined and discharged.
•
He has not suffered ongoing physical symptoms other than occasional back pain and headaches, but has had a severe psychiatric reaction.
•
The accident is constantly on his mind, which causes him great distress. He has accident-related dreams and experiences flashbacks. He becomes tearful when remembering the accident. If he recalls the accident while driving, he has to pull over. He has become extremely watchful and cautious on the road and is sensitive to accident reminders.
•
He is very stressed, anxious and tense since the accident and worries about things such as his friends and family having accidents. He is more irritable, frustrated and angry, and is less tolerant.
•
He feels depressed and struggles for motivation. His concentration is impaired and he is forgetful, distracted and preoccupied. He has disturbed sleep and low energy. He has reduced appetite and has lost 10 kilograms since the accident. He has become withdrawn and rarely goes out. His self-esteem and confidence have suffered and he has suicidal thoughts.
•
He has consulted Dr Wong, general practitioner, who prescribed an anti- depressant, Cipramil, but he has not continued with this treatment because he was concerned about the side-effects, including how it would affect his thought processes, and becoming addicted.
•
He consulted Ms Pollock, psychologist, for psychiatric treatment, but ceased because he did not feel that it was providing benefit.
•
He has recently been referred to Ms Wakefield-Semmens, psychologist specialising in Post-Traumatic Stress Disorder, but has not yet had an appointment with her. He finds it difficult to discuss the accident and may consult a general practitioner about further treatment.
•
Prior to the accident, he had not suffered from a psychological condition or required psychological treatment.
•
The accident occurred close to his grandparents’ home, where he lives, and he had to move out for a period following the accident.
•
In the months prior to the accident, he had relationship difficulties with his girlfriend, who is the mother of his two-year-old son. They were trying to address their issues but the relationship ended a few months after the accident. Previously he saw his son every day, but only sees him once a fortnight now. Since the accident, he finds it difficult to engage with his son and feels disconnected and estranged from him.
•
Prior to the accident, he sometimes used marijuana, but was attempting to reduce his usage. Since the accident, he has had a severe psychological reaction when he has drunk alcohol or used marijuana, so he no longer drinks or smokes.
•
Prior to the accident, he worked as a re-stumper. He has tried to return to work but has been unable to manage, has severe claustrophobia and sometimes becomes tearful for no reason, which he finds embarrassing.
12 In his second affidavit sworn 6 October 2010, the plaintiff adds:
•
At the time of the accident, he felt pain in his lower back, neck and chest and noticed migraine headaches with vomiting. On 17 November 2008, he consulted Dr Wong, general practitioner. He was told that he was suffering from Post-Traumatic Stress Disorder.
•
He continues to feel distressed and upset and to have trouble sleeping. He is unable to be in enclosed spaces and becomes panicky on public transport. He does not like being alone and had lost confidence and motivation. He continues to have suicidal thoughts. He has become overly protective and worries if his grandparents or son are in a car.
•
He sees Dr Verhoef, general practitioner, every few months, who provides medical certificates. He is not taking any medication at this time.
•
He has been referred to psychiatrists but has not attended because of reminders of the accident, such as medical or solicitor appointments, which cause him to become worked up to the point where he becomes physically sick and cannot cope with the consultation.
•
At the time of the accident, he had been separated from his girlfriend for six months and they had a young child. He struggled to cope with the separation, being a father and the consequences of the accident. He was smoking a lot of marijuana and was becoming addicted.
• He is currently living with his grandparents. •
He is estranged from his mother, who has addiction issues. His father was in a car accident when he was two-years-old and is in a home, so he has not been close to his father.
•
From 2002 until the time of the accident, he was employed by Fleming & Sons Pty Ltd as a housing reblocker/underpinner. He enjoyed his work. He returned to work six months after the accident, but when he attempted to go under a house he panicked, started crying uncontrollably and had to return to the car to calm himself before driving home. Other attempts to return to work have been unsuccessful.
13 Ms Sandra Jones, grandmother of the plaintiff, deposed on 6 October 2010, that:
• The plaintiff has lived with her on and off for most of his life. • She would describe the plaintiff prior to the accident as a happy, confident and stable person. He had issues with his family, particularly his mother, but was a well adjusted and responsible young man. • Since the accident, she has often seen the plaintiff crying and sobbing. • She has noticed the plaintiff now sleeps with the light on and his bedroom door open. • When the plaintiff has to attend appointments related to the accident, he is a mess for days before and after. 14 In her second affidavit sworn on 1 April 2011, Ms Sandra Jones adds:
•
The plaintiff has not been sleeping at her house for the last six weeks. When he was last sleeping at her house he was still sleeping with the light on and appeared to be having difficulty sleeping as she would hear him howling in the night and would go to see him.
•
She and her husband have tried to get the plaintiff to accept psychiatric and psychological treatment, but he has still been resistant.
•
On 24 November 2009, she attended Dr Bill Atkin, psychiatrist, with the plaintiff. Dr Atkin explained that the plaintiff needed to go to hospital. The plaintiff said he would not speak with Dr Atkin because he did not want to go to hospital.
•
She struggles to get the plaintiff to attend doctors’ appointments, including medico-legal appointments.
•
Since the accident, she has had to attend to the plaintiff’s affairs, such as paying his bills, organising doctors’ appointments, contacting the solicitors acting in this matter and arranging Centrelink appointments and payments.
•
Prior to the accident, the plaintiff was close to his cousins, but since the accident he has not attended family functions such as birthdays and Christmas dinners.
15 Mr Ross Fleming, previous employer of the plaintiff, deposed on 22 March 2011, that:
•
In about 2002, he employed the plaintiff as a housing reblocker/underpinner on a full-time basis. His job required replacing rotted and defective stumps, and he often had to work under houses.
•
The plaintiff was an excellent employee who was keen to work and was always willing to work on weekends.
•
Approximately six months after the accident, the plaintiff attempted to return to work. The plaintiff struggled at work and he found the plaintiff crying and upset. The plaintiff was not concentrating on what he was doing and was putting himself and his colleagues in danger.
• He believes the plaintiff is unable to recommence working for him. •
He would describe the plaintiff as a happy and outgoing person who was popular with his friends and family prior to the accident. After the accident, he noticed the plaintiff became angry very quickly and spent a lot of time on his own, which was out of character for him.
The Plaintiff’s Evidence in Cross-Examination
16 The plaintiff was cross-examined and gave the following pertinent evidence:
•
He smoked marijuana a few days ago. The last time he ceased smoking marijuana was about a month ago.
•
He has used speed [amphetamine] in the past. He has ingested it orally and intranasally. He feels high after taking it. He has used speed since the accident, to try to block out what happened and to try to make him feel better again.
•
He said he uses illegal drugs because he does not have to take them every day. He said he has seen his mother when she has not had her anti-depressant medication, and it scares him to rely on anti-depressants in case he did not take it and became suicidal. He has considered that taking anti-depressants might ease his unhappiness, but he does not want to rely on a pill every day to feel normal. If he takes marijuana and then ceases, it does not bother him.
•
He agreed he told Dr Wong that he was worried about being addicted to illicit drugs. He agreed that Dr Wong, Dr Serry and Dr Walton had all said he would benefit from anti-depressant medication.
•
He said prior to the accident, he had not felt anxious about going under houses. He said now he feels claustrophobic and he cannot go under houses.
•
He has tried to return to work, he thought in the middle of 2009. He has attempted to return to work on more than one occasion. He tried to go under the house and he could not. He had a panic attack, and his boss sent him home. He has worked for his boss sweeping floors and cleaning his boss’s garage. He has been to an employment agency.
•
He does not think he could work as a labourer because some days he cannot get out of bed.
• He denied that he had been experiencing anxiety prior to the accident. • He said he tried ecstasy once or twice. •
He agreed in re-examination that he had attempted to go back to work. He would just drop in every couple of months or so. He wants to go back to work.
The Plaintiff’s Medical Evidence
17 Dr Nathan Serry, psychiatrist, medically examined the plaintiff at the request of his solicitors on 22 September 2009. In September 2009, the plaintiff told Dr Serry that he previously used marijuana quite heavily, but had now stopped. It was Dr Serry’s view that the plaintiff had become quite significantly depressed, stressed, anxious, frustrated and traumatised. He said the plaintiff described symptoms consistent with a Post-Traumatic Stress Disorder, and he had developed marked anxiety in relation to confined spaces, thus impacting heavily on his work capacity. It was Dr Serry’s view that the plaintiff had sustained a serious psychiatric injury as a direct result of the accident. He thought the plaintiff’s condition had stabilised. He thought there were marked limitations in relation to the plaintiff’s work capacity, limitations which arise as a consequence of the psychiatric injury.
18 In January 2011, Dr Serry was of the view that the plaintiff’s Post-Traumatic Stress Disorder and Major Depression were of at least moderate severity, and that the plaintiff required specific and fairly urgent psychiatric treatment. He thought the plaintiff would require ongoing expert management, given the nature and severity of his psychiatric symptomatology. He thought the psychiatric condition had essentially stabilised, and he made his assessment on the basis of the persistent nature of the symptomatology and the plaintiff’s lack of responsiveness thus far to mental health treatment.
19 In a letter of 30 March 2011, Dr Serry said the plaintiff had a serious psychiatric condition which required ongoing psychiatric treatment as a matter of some urgency.
20 In cross-examination, Dr Serry said he would recommend anti-depressant medication as part of comprehensive treatment, but he could not specifically predict with any certainty what the outcome was going to be. He said taking Cipramil for three days was a manifestly inadequate period of time to trial a particular drug. He said some people with physical pain do find medicinal benefits from using marijuana, and some find it helpful for sleep. It is not a treatment that he would recommend. He said it was not infrequently the case that people who have been deeply traumatised as part of their treatment felt worse after sessions with the psychologist.
21 In re-examination, Dr Serry said that he thought the plaintiff found the treatment experience distressing, and that had contributed to his avoidance. He said the plaintiff would require ongoing regular and substantial psychiatric input. Even with that, his prognosis would be guarded, given the chronic nature and severity of his symptoms. Dr Serry said he could not guarantee a favourable outcome. He thought the plaintiff might be able to be sustained and stabilised at a slightly better level than he is currently functioning at. He doubted whether the plaintiff would be able to return to work as a re-stumper. Ideally he might be able to return to some form of menial labour type work, but he did not see that as being likely within the foreseeable future.
22 Ms Christine Steentjes, psychologist, saw the plaintiff in October and November 2010. It was her opinion that the plaintiff was suffering from severe depression and Post-Traumatic Stress Disorder. She said the very nature of his Post-Traumatic Stress Disorder had prevented him from being able to focus and maintain any ongoing therapeutic relationship. He had lost all life skills since the accident, and struggled to maintain any form of routine. He was unable to engage in and maintain a therapeutic relationship. She thought medication might help this. She said the plaintiff was not fit for employment of any type, and, unless he is able to seek help, she cannot see this changing in the near future.
23 Dr Yen Wong, general practitioner, reported in September 2009 to the plaintiff’s solicitor. The plaintiff consulted Dr Wong immediately after the accident in respect to pain in his lower back and difficulties with sleeping. His physical injuries recovered in approximately eight weeks. Dr Wong noted that the plaintiff was distressed about the fact that two people lost their lives in the accident. The plaintiff was sleeping poorly. He was having flashbacks about the accident, and was easily tearful, with feelings of depression. It was Dr Wong’s view that the plaintiff was suffering from Post-Traumatic Stress Disorder. He prescribed a course of Cipramil and referred the plaintiff to a psychologist, Ms Irene Pollock, for counselling.
24 Dr Wong was cross-examined. He said he prescribed Valium to help the plaintiff sleep and to medicate the symptoms of drug withdrawal. He said the referral to the psychologist was also because the plaintiff suffered quite a severe effect from the horrific motorcar accident. He said it was possible that he would have told the plaintiff that smoking marijuana might aggravate his anxiety, but it is not recorded. He would have told the plaintiff he could prescribe another anti-depressant. He would have discussed re-training with the plaintiff. He said if someone decides not to take medication, no amount of persuasion can change that.
25 The plaintiff sought treatment from Dr Bill Verhoef, general practitioner, nine months after the accident. Dr Verhoef said that the plaintiff had been severely suicidally depressed. He had been unable to work. He had developed claustrophobia. In cross-examination, he agreed the plaintiff was crying out for help and declined all help offered. In re-examination, he agreed that he provided a certificate of incapacity for work.
26 Ms Irene Pollock, psychologist, provided treatment to the plaintiff. She said he was unable to sleep; had flashbacks; was emotionally unstable; and was crying regularly. He kept seeing the girl hanging out of the window of the car, dead, and the dreadful silence. Ms Pollock said there was total despair and hopelessness. She said the plaintiff was very depressed. He had been prescribed anti-depressants, but he did not like the effect of the medication. She was concerned that he might be suicidal. She said the plaintiff could not return to his job since the accident. He felt afraid of being under a house. She saw this as another symptom of Post-Traumatic Stress Disorder. It was her view that the plaintiff was suffering from Post-Traumatic Stress Disorder which was ongoing. The symptoms include flashbacks, insomnia, bad dreams, fear of loss and of accidents, and emotional instability. She thought he was not ready for any permanent work.
27 In cross-examination, Ms Pollock said the drug addiction did not come up. She said the plaintiff came as a result of the feelings that he had from the accident; the Post-Traumatic Stress Disorder. That was the most pressing problem; the quicker it was treated, the quicker he could recover. She was focussed on working on the Post-Traumatic Stress Disorder. For the first four to five sessions they talked about the accident, the depression and anxiety. The drug addiction and relationship problems only came up later.
28 She said the plaintiff was adamant he could not go back onto the anti- depressants. She wrote to Dr Wong and suggested the plaintiff continue with anti-depressants. She said she suggested he use the time to retrain; he expressed a willingness to join the police force or fire brigade. She said, “The will was there but he really couldn’t do it. Everything that came up, he was unable to do.” She said he should have been in intense therapy.
29 She was asked about a file note of a psychiatrist at the Transport Accident Commission, Dr Melinda Kemp, made of a conversation with Ms Pollock. Ms Pollock said she did not tell Dr Kemp that the plaintiff had experienced feelings of anxiety under houses before the accident. She agreed she did not make a note of her conversation with Dr Kemp. She said that must have been a misunderstanding.
30 In re-examination, she said she could not force the plaintiff to take antidepressants.
The Defendant’s Medical Evidence
31 Dr Lester Walton provided medical reports dated 3 June 2009, 2 February, 21 April and 19 May 2010 and 1 March 2011. In March 2011, Dr Walton said the diagnosis was a Post-Traumatic Stress Disorder and a Depressive Disorder. He thought the Post-Traumatic Stress symptoms were substantially in remission and the prominent feature was ongoing depressive mood. His prognosis was guarded. He described the severity of the psychiatric injuries as moderate. He thought the plaintiff needed treatment for depression from a psychiatrist and required anti-depressant medication for a period of two years. He said the plaintiff’s prognosis with treatment is uncertain. The prognosis without treatment is likely unremitting depression. He thought the plaintiff had at least a partial incapacity for work on psychiatric grounds but not a total incapacity. He said the depression does impact adversely upon the social and recreational activities of the plaintiff.
Credit of the Plaintiff
32 The plaintiff gave evidence. He was very distressed, agitated and at times incoherent. He seemed to find the process of talking about the accident and its effect confronting and distressing. He did not assist his case, because his distress meant he could not articulate the consequences. He made concessions in relation to his drug use and what he had told doctors about that. He took time to answer questions. He seemed intimidated by the court process. He was neatly dressed and well mannered.
33 He said he wanted to return to his life prior to the accident; he wanted to get better and return to work.
34 I found the witness to be truthful. His demeanour in the witness box was critical. It supported the evidence given by his grandmother and the medical witnesses about his mental health and wellbeing.
Analysis
35 It was accepted that the plaintiff is suffering a severe mental or severe behavioural disturbance or disorder at the present time as a result of the accident. The defendant did not contest that the plaintiff is suffering distress, incapacity in relation to everyday activities and relationships, and incapacity for work. The defendant submitted that at least a major component of the disturbance or disorder – claustrophobia – was in existence at the time of the accident and thus the disturbance or disorder was not an injury caused by the accident.
36 The defendant relied upon the file note, made by the TAC psychiatrist, Dr Melinda Kemp, of a conversation she had with Ms Irene Pollock, the psychologist treating the plaintiff. The psychologist, Ms Pollock, said she did not tell Dr Kemp that the plaintiff had experienced feelings of anxiety under the house before the accident; she said it must have been a misunderstanding. She agreed she did not make a note of her conversation with Dr Kemp. Dr Kemp was not called to give evidence. The plaintiff denied that he was claustrophobic prior to the accident.[7] Dr Verhoef also denied he obtained such a history.[8] I accept the truth of the statement by Ms Pollock; it was supported by the plaintiff and Dr Verhoef. Accordingly, I reject the first submission of the defendant.
[7] Transcript page 53 lines 23-25
[8] Transcript page 109 lines 16-25
37 The second submission of the defendant was that any disturbance or disorder is not long-term or, if it is long-term, it is only so because of the plaintiff’s refusal to engage in appropriate treatment. The only evidence on this point was that of Dr Serry.[9] Dr Serry was asked what the likely progress would be if the plaintiff had treatment. Dr Serry said it was purely and simply an educated guess. He said the plaintiff would require ongoing regular and substantial psychiatric input. Even given that, he said his prognosis would be guarded given the chronic nature and the severity of his symptoms. He further went on to say, there would be no ability to clinically guarantee a favourable outcome. He then said it might be that the plaintiff could be sustained and stabilised at a slightly better level than he is currently functioning at, but he was unable to make any more definitive comment.
[9] Transcript page 85
38 He said even with treatment, he doubted whether the plaintiff could return to work as a re-stumper given the development of his phobic symptoms. Ideally, he might be able to return to some form of manual labouring type work, but he did not see that as being likely within the foreseeable future.
39 Dr Walton did not address the issue. He said the plaintiff needed psychiatric treatment and anti-depressant medication, which would be required for two years if there is a favourable response. He said the prognosis with treatment was uncertain. There was no medical evidence that if the plaintiff engaged in treatment on a regular basis, his condition would not be long-term.
40 I accept the submission of the plaintiff that the evidence of Dr Serry clearly describes the scenario which amounts to serious consequences for this plaintiff. That is, with treatment, the plaintiff is left with an incapacity for work, long-term ongoing psychiatric treatment and a position where, even with treatment, he might be able to be sustained and stabilised at a slightly better level than at which he is currently functioning. Dr Walton said he would require treatment for two years on the basis of a favourable response, and then his prognosis was uncertain. I accept that amounts to long-term.
41 The third argument of the defendant was that any disturbance or disorder is not severe; or, if it is severe, it is only so because of the plaintiff’s recalcitrance with respect to seeking proper treatment. The plaintiff has sought treatment; however, he has refused to continue with the treatment suggested by a number of the medical practitioners, that is, anti-depressant medication, hospitalisation and intense therapy. No medical practitioner suggested he was wilful in refusing treatment.
42 The defendant contended that the principles in relation to failure to mitigate apply to the plaintiff’s claim for serious injury. I was not taken to any case on point which involved a serious injury. It is not necessary for me to consider the point, because I accept the evidence supports the proposition that even if appropriate intervention were to take place, the plaintiff’s condition would still be severe and long-term. Dr Serry’s evidence was that the plaintiff does not appear to have sustained benefit from his treatment and struggles to tolerate such treatment. I accept that Dr Serry’s evidence supports the proposition that the plaintiff’s psychological injury makes it difficult for him to tolerate treatment. I also rely on the plaintiff’s demeanour in the witness box. He was extremely agitated, in great distress and had great difficulty in coping with questions. I accept his inability to give a good account of himself was explained by his agitation and inability to cope. Further, the plaintiff said he was reluctant to take anti-depressants because of what he had seen with his mother. This was evidence he gave to a number of the doctors. In addition, Mr Walton, in February of 2010, said it was unfortunate that the plaintiff had not been able to make use of psychiatric treatment. At this stage I doubt that further counselling will confer significant benefit.
43 Mr Walton also said that the plaintiff was loathe to rely on psychotropic medication and “I am not inclined to push that treatment option”.
44 I find that the plaintiff suffered an injury, in this case a psychiatric impairment, in the accident. This was supported by all doctors. None said it would improve. Taking into account the serious effect the plaintiff’s injury has on his earning capacity, and his pain and suffering, I am obliged to apply the definition of “serious injury” relied upon, but also to have regard to the guidance in Humphries v Poljak[10] that I should make a judgment whether the plaintiff has suffered a serious injury by comparison with other cases in the range of possible impairments or losses. I accept that the impairment is long- term.
[10] (supra) at 140
45 Taking all of the evidence into account, and considering it as a whole, I am persuaded, on the balance of probabilities, that the consequences of the injury to the plaintiff satisfy the test. I am satisfied that the plaintiff has established that the pain and suffering consequences of his injury can be reasonably described as being more than “serious” to the extent of being “severe”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of possible mental or behavioural disturbances or disorders. I accept that the injury has consequences to him that, when judged by comparison with other cases in the range of possible impairments, can fairly be described at least as being more than “significant” or “marked” and as being at least “very considerable”.
46 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injury suffered by him arising out of the transport accident on 15 November 2008.
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