Hamidi v Transport Accident Commission
[2022] VCC 1263
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-03608
| TAHEREH HAMIDI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 May 2022 | |
DATE OF JUDGMENT: | 11 August 2022 | |
CASE MAY BE CITED AS: | Hamidi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1263 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious long-term impairment or loss of a body function – function of the spine and right shoulder – mental or behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Browne v Dunn (1893] 6 R 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald QC with Ms Y Al-Azzawi | Henry Carus and Associates |
| For the Defendant | Mr S Pinkstone | Lander and Rogers |
HER HONOUR:
Introduction
1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Tahereh Hamidi, in respect of injuries to the spine and a mental or behavioural disturbance or disorder sustained in a transport accident on 24 July 2018.
2Firstly, the plaintiff alleges she has a “serious injury” as defined by s93(17)(a) of the Act; namely, a serious long-term impairment or loss of a body function, being the function of the spine and her right shoulder.
3The onus of proof is on the plaintiff. In Humphries and Anor v Poljak,[1] Crockett and Southwell JJ stated, in respect of the definition of “serious injury” in paragraph (a):
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/ or pain and suffering. In forming a judgement whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[1][1992] 2 VR 129 at 140
4Secondly, the plaintiff alleges she has a severe long-term mental or severe behavioural disturbance or disorder as defined in s93(17)(c).
5With respect to sub-paragraph (c), it is put the plaintiff has an aggravation of a pre-existing post-traumatic stress disorder with anxiety and depression. In an aggravation case, the principles of Petkovski v Galletti[2] need to be followed, namely where the injuries are an aggravation of a pre-existing condition, there must be consideration of what the evidence discloses of the prior condition and the extent of impairment before and after the relevant injury. Further, any aggravation of the pre-existing psychiatric injury must be “severe”. The aggravation requires a causal connection between the alleged aggravation injury and the transport accident.
[2] [1994] 1 VR 436
6The application proceeded in the usual manner. The plaintiff gave evidence and was cross-examined. She provided two affidavits in support of her application dated 17 November 2021 and 4 May 2022.
Background
7The plaintiff is 53 years old and is married with five adult children, two of whom still live at home. She was born in Afghanistan and did not attend school. When she was 12, Russia invaded Afghanistan, and aged 14 she and her family fled to Iran as refugees. She worked as a tailor and dressmaker for 10 years and received some basic education at the age of 25.
8In September 2005, her family moved to Australia, initially residing in Adelaide. In February 2018, the plaintiff moved to Melbourne.
Income support
9The plaintiff has not worked in the paid workforce in Australia. She had been receiving the disability support pension, “for my pre-existing medical conditions, in particular my mental health problems”[3] for many years. At the time of the transport accident, she was receiving a Newstart allowance, as her disability pension was ceased when she went to Iran for a number of months. She is now receiving the disability support pension.
[3] Plaintiff’s Court Book (“PCB”) 24
Previous health issues
10The plaintiff has lupus which is treated with methotrexate injections, and she sees a rheumatologist.
11She also had a long history of suffering from migraines and attended Royal Adelaide Hospital and Modbury Hospital.
12In 2011, she experienced back and neck pain. This was treated with a steroid injection in the right shoulder. Her counsel submitted: “Significantly, it will be our case that she hadn’t any significant problems with her spine, specifically her neck or low back, prior to this accident.”[4]
[4] Transcript (“T”) 6
13She had a pre-existing constitutional condition of spondylosis of the spine, which was asymptomatic.
14She has been diagnosed with a brain tumour, which is a benign meningioma, described by her counsel as not “clinically significant”.[5]
[5] T7
15She has seen a psychiatrist and a psychologist for anxiety, Major Depression and Post-Traumatic Stress Disorder. In 2012, this was exacerbated by a “family crisis”.[6] She was diagnosed with Severe Depression, stress and anxiety, and this was the basis of her receipt of a disability support pension in 2007 or 2008.[7] She was prescribed Allegron for depression.
[6]This was referred to in evidence variously, as a “family issue” which was serious in nature but not explained further
[7] T16
Transport accident
16On 24 July 2018, she was a passenger sitting in the back driver’s side seat of a car her brother was driving on St Kilda Road, Melbourne. He attempted to make a U-turn and the car collided with a tram, with the tram colliding with the passenger side of the car where the plaintiff was sitting.
Physical injuries
17The plaintiff was taken to hospital and admitted for three nights. She had conservative treatment and was discharged on 27 July 2018 with a neck brace, which she wore for approximately six weeks.
18She sustained the following injuries: minimally displaced fractures of the posterior first ribs bilaterally and right third rib;[8] right C7 transverse process fracture extending to the right transversarium foramina; T1 and T2 right transverse process undisplaced fracture and left pneumothorax.[9]
[8] PCB 63
[9] PCB 64
19Whilst she had pre-existing constitutional condition of spondylosis of the spine, it was asymptomatic, and the accident has aggravated her cervical and lumbar spondylosis and right shoulder.
Psychological injuries
20The plaintiff has been diagnosed with Post-Traumatic Stress Disorder, depression and anxiety due to the transport accident, and a Chronic Pain Disorder.
Section 93(17)(a) of the Act: a serious long-term impairment or loss of a body function, being the function of the spine and right shoulder
What is the injury?
21The medical evidence confirms the plaintiff suffered physical injuries as a result of the transport accident on 24 July 2018. Dr Gajera from The Alfred hospital detailed the physical injuries as the right C7, T1 and T2 transverse process fractures.[10] Dr Gassin, pain specialist, diagnosed the plaintiff’s right shoulder pain as largely arising from the right AC joint and from the subacromial structures, and her low back and neck pain as almost certainly contributed to by aggravation of cervical and lumbar spondylosis.[11]
[10] PCB 68
[11] PCB 73
Did the injuries arise from the transport accident?
22The medical evidence supports that the plaintiff’s injuries were caused by the transport accident. Mr Russell Miller, orthopaedic surgeon, in a report dated 4 November 2021, diagnosed the plaintiff as suffering a musculo-ligamentous strain and aggravation of degenerative disease in the cervicothoracic and lumbar spine. He regarded the status of her spine and shoulders as substantially accident-related.[12]
[12] PCB 146
23Professor Richard Bittar, consultant neurosurgeon, diagnosed the plaintiff with persistent neck and upper back pain related to her transverse process fractures affecting the lower cervical and upper thoracic spine, as well as the probable aggravation of cervical spondylosis and probable aggravation of lumbar spondylosis. In his opinion, the transport accident has been a significant contributing factor.[13] He also diagnosed the plaintiff as having chronic pain syndrome.
[13] PCB 97
24In contrast, Mr Speck, orthopaedic surgeon, commissioned by the defendant for a medico-legal report, described the plaintiff as having been involved in a “low velocity” transport accident. He noted she sustained fractures at the cervicothoracic junction with minimally displaced fractures of both first ribs, right third rib and undisplaced fractures of the right C7-T2 transverse processes.[14] Mr Speck described her current presentation as one of Chronic Pain Syndrome or Somatic Symptom Disorder with her limitations related not to ongoing structural injury but psychological factors.
[14] Defendant’s Court Book (“DCB”) 27
25Further, Mr Speck was of the opinion her injuries have stabilised and her prognosis for the soft tissue injury to her neck as “excellent”, and that he considered any symptoms in the low back are “unrelated to the transport accident”. He believed her current presentation with a Chronic Pain Syndrome/Somatic Symptom Disorder is likely to remain.[15]
[15] PCB 48
26In his report dated 5 May 2022, Mr Miller stated he did not accept Mr Speck’s opinion the transport accident as being low velocity. He stated:
“There has been major trauma to the region of the cervicothoracic junction involving the spine and chest and it is highly unlikely that the client would have fully recovered from such an injury and that ongoing symptoms are likely due to the spinal and chest injury.”[16]
[16] PCB 151
27Further, he stated:
“Furthermore, it is well known that chronic pain, by definition a condition in which pain persists beyond the healing of the inciting injury, can also be involved. Either way, Ms Hamidi’s ongoing pain and associated disability, should be considered a consequence of the original injury.”[17]
[17] PCB 108
28In his final report, Mr Speck concluded, following a brief examination of the plaintiff on 12 April 2022, that her presentation is consistent with a Somatic Disorder and confirmed the conclusions of his previous reports.[18]
[18] DCB 56
29I prefer the opinions of Professor Bittar and Mr Miller. In my view, Mr Speck minimised the nature of the collision when he described it as “low velocity” and I do not accept his assessment. Whilst fractures to the back and ribs might heal in three months, I do not accept there would not be any residual symptoms, and this is supported by Professor Bittar and Mr Miller.
30I am satisfied the medical evidence supports the injuries arose from the transport accident.
What are the consequences of the injury?
31In respect of her back and neck, the plaintiff reported constant pain and discomfort in her lower back as well as a throbbing sensation. It is stiff in the morning when she awakes. Long periods of sitting and standing increases the pain, as does bending, twisting, lifting and carrying things. The pain radiates to her legs, and she gets pins and needles. She has difficulty standing up and getting into bed and requires help from her children.
32She has pain in her neck as well as restriction of movement. The pain increases when sitting or standing in the same position, or when holding it in the one position when watching TV. She cannot move her head quickly. Her headaches and migraines are worse since the transport accident and neck pain radiates to her head. Pain from her neck radiates to her shoulders and arms, particularly her right arm, which feels weak, and she struggles to lift and grip things. She now uses her left hand but is right hand dominant.
33The pain is worse in the cold, and she uses heat packs on her neck and back, and keeps the heater on at home.
34The plaintiff has ongoing pain in her chest from fractured ribs, which is worse when she sneezes or places pressure on it.
35She has great trouble sleeping due to the pain in her neck. Since the transport accident, she has nightmares most nights and only sleeps for a few hours.
36The plaintiff no longer attends her mosque, and she is socially isolated. She used to go out and socialise with her friends and family, such as for weddings and birthdays. Prior to the transport accident, although she relied on her daughter, Fatemeh, who was her carer, she “would cook most nights and do some cleaning such as sweeping and vacuuming”.[19] She has now stopped cooking and relies on Fatemeh to do all the household chores. Her house was her “pride and joy” and she has difficulties with cooking and cleaning. She does not go to the shops much and struggles to carry her shopping. Prior to the transport accident she would trim plants and trees in her backyard and clean the yard. The neck pain now makes gardening difficult, and she cannot push a broom or reach out to cut plants.
[19] PCB 27
37Prior to the accident she would walk as much as possible in her local area. This now aggravates her back pain, and she is less active.
38Her hygiene has suffered as the water pressure from the shower is too painful on her neck and back. Prior to the transport accident she did not require help with washing herself and getting dressed. She now needs assistance from her daughter to shower once a week and help to get dressed in the morning.
39Her relationship with her husband is strained because she cannot do things around the house, and they are separated under the same roof.
40She stated that prior to the transport accident “I was trying to get on with my life, I now feel sad and depressed every day”.[20]
[20] PCB 28
Are the consequences at least very considerable or more than significant or marked?
41Although the plaintiff did not have pre-existing injuries for her neck or back, she was on a disability support pension for 13 years prior to the transport accident, as a result of her serious mental health diagnosis of Post-Traumatic Stress Disorder, depression and anxiety.
42It was submitted by the plaintiff’s counsel that her lupus was, at the date of the transport accident, “reasonably well controlled with regular injections…and wasn’t affecting her to the extent that she couldn’t live a reasonably normal life”.[21] It was also put in submissions that this was not a case of aggravation, but related to fresh injuries caused by the transport accident which have an organic basis, supported by Professor Bittar and Mr Miller. According to Mr Miller, there are also some psychological consequences.
[21] T5
43With respect to the plaintiff’s claim under (a), the plaintiff’s counsel submits her spinal injury is serious. Further, there is psychological impairment directly referable to the transport accident borne out in the medical reports, particularly from the treating psychiatrist and treating psychologist.
44The plaintiff’s general practitioner, Dr Jaber, did not provide a statement regarding her physical health prior to the transport accident on 24 July 2018. This was described by the defendant’s counsel as a “significant omission”. Further, as there is no affidavit material from her daughter, Fatemeh, who has been her carer both before and since the transport accident, the defendant’s counsel urged me to draw an adverse inference against the plaintiff.
45The defendant’s counsel attacked the plaintiff’s credit and submitted she was an evasive and unreliable witness. It was put she was argumentative and foresaw questions requiring answers which would not suit her claim. Although she was unsophisticated in the formal sense, it was put she was a witness of guile. The defendant’s counsel urged me to reject the plaintiff’s self-report on the extent of her symptoms “prior” to the accident. It was submitted her credit goes to the heart of her case, namely her subjective report of her pain levels with respect to her claim pursuant to paragraph (a) of the definition of serious injury.
46In her evidence, the plaintiff explained in 2013/2014 her daughter, Fatemeh, became her carer and helped her to maintain the house. She stated:
“She would help [me] with some minor things but it wasn’t like the way after the accident that she would be completely helping me with everything.”[22]
[22] T30
47The plaintiff distinguished pre and post-transport accident stating:
“… but it wasn’t like the way after the accident that she became 24 hours helping me and after the accident, she is completely doing all the work, I’d become so much worse.”[23]
[23] T30-31
48The plaintiff conceded she did have difficulties prior to the accident but that she could look after herself physically and that she had difficulty sleeping, some difficulties walking, some pain in her hands and feet which was intermittent, some fatigue, and difficulties getting out of bed. She could still clean the yard and clean at home although she would get tired.
49The only medical material in the Court Books that pre-dates the transport accident is in the Defendant’s Court Book from when the plaintiff lived in Adelaide. The handwritten notes by Mr Damien McInerney, clinical psychologist from a consultation dated 23 June 2015 includes the note: “Hard to do physical ex/work. Daughters do housework”.[24] A further entry dated 16 January 2017 states, “Her abilities are reducing, ie, self care & grooming”.[25]
[24] DCB 59
[25] DCB 60
50In cross-examination, the plaintiff was asked about her lupus which was diagnosed in 2013. She reported lupus caused swelling and joint pain:
“Yes, I got swelling in the face and my joints were hurting but then I went to the doctor and took medication, and I got better.”[26]
[26] T26-27
51Further, she stated:
“… it wasn’t that I stopped doing housework or looking after myself., it wasn’t like the accident that affected me and made difficult, everything a problem. I was taking medication and it was under control.”[27]
[27] T27
52A letter that her clinical psychologist wrote dated 25 June 2015 to Centrelink in support of the continuation of her disability support pension was put to the plaintiff is cross-examination:
“Clinical assessment indicates that she suffers a severe depressive condition and high levels of stress and anxiety. Tahereh has also been diagnosed with lupus, an auto-immune disease without cure. This impacts on her emotional distress as well as having its own impacts on her physical well-being and energy levels. Her condition is characterised by persistent negative moods: depressed sad, tearful and withdrawn. She suffers severe sleep deprivation, related both to her emotional distress and the experience of chronic pain. ... She has significant experience of chronic pain, a somatic expression of her emotional distress and also a symptom of lupus.
Tahereh is not able to engage in everyday activities including such household tasks as cooking and cleaning. ...
It is my clinical opinion that Tahereh suffers medical conditions of an intensity and of an enduring nature, that she would continue to meet the criteria for the grant of the Disability Support Pension.”[28]
[28] DCB 64
53On 11 November 2016, Dr Jaber wrote to Centrelink recording “Mrs Hamidi has been suffering from multiple permanent severe physical and mental illnesses”.[29]
[29] DCB 187
54Further, on 1 February 2017, Dr Jaber again wrote to Centrelink stating she was suffering from close “multiple permanent severe physical and mental illnesses”.[30] The plaintiff agreed this was true.[31]
[30] DCB 184
[31] T50
55When questioned about the contents of her psychologist’s letter dated 25 June 2015, the plaintiff stated this was caused by the lupus. It was very sudden, caused a lot of distress, she was very frightened, and there was a great amount of pressure.[32]
[32] T42
56There is a contrast in her evidence between the way she explained the effect of the lupus diagnosis in 2013 to the court, as compared with the effects of lupus reported by her psychologist in 2015 and by her general practitioner in 2016 and 2017 in support of the disability support pension. The plaintiff appeared to minimise her symptoms depending on the case. Neither the letters from Dr McInerney nor by Dr Jaber state she had medication for her lupus and “got better” or that it “was under control”.
57Further, despite the pain levels reported by the plaintiff, she has not undergone treatment such as physiotherapy, engaged in a pain management program, or had other therapy aside from medication, namely Panadol Osteo and Nurofen. Dr Gassin suggested physiotherapy and hydrotherapy as treatment, as well as Cortisone injections. However, the plaintiff was not keen to consider these options.
58The plaintiff reported to Professor Bittar that her domestic activities post-accident such as shopping, cleaning, cooking and gardening are severely limited, and she relies on her family for those activities. She did not clarify to Professor Bittar that prior to the transport accident her psychologist had reported in support of her disability pension that she was “not able to engage in everyday activities including such household tasks as cooking and cleaning” and had difficulty sleeping. She explained that she may not have been able to express herself correctly but “in the past I have had mental health issues but I wasn’t an injured person and I’m a very, very different person now”.[33]
[33] T83
59I have doubts about the plaintiff’s credit. She was not an impressive witness, and I found her meandering and non-responsive. Her counsel submitted she was disadvantaged by her language difficulties and her incredibly disadvantaged background growing up uneducated and illiterate in war-torn Afghanistan. He noted whilst she was loquacious and push backed some questions, her pain and discomfort was obvious. I take those considerations into account. However, that said, she was inclined not to answer even simple questions. For example, she struggled to answer a number of questions about her anti-depressant medication, and when it was put to the plaintiff she was on antidepressant medication from 2005-2015 she was equivocal.
60The plaintiff’s credit in this case is important as, aside from the medical materials in Defendant’s Court Book, there is no medical or lay evidence other than the plaintiff’s evidence about her pre-accident health. The medical reports, including those of her treating doctors, rely entirely on her reportage.
61The plaintiff has described her pain levels in her neck and back after the accident on 28 July 2018 in her affidavits and evidence to the court. I do not doubt she suffers pain to her neck and back and accept the injuries occurred as a result of the transport accident. However, the letters from 2015 by her psychologist and letters from her general practitioner in 2016 and 2017 report her as suffering a significant “experience of chronic pain”, as well as “medical conditions of an intensity and of an enduring nature”, and “multiple permanent severe physical and mental illnesses”. They report conditions that affected her ability to sleep and perform household tasks such as cooking and cleaning. This reportage contrasts with the plaintiff’s evidence that prior to the transport accident her daughter would help her with “minor things”.
62The plaintiff’s counsel submitted Professor Bittar’s diagnosis is one of probable aggravation of thoracic spondylosis. This diagnosis is entirely consistent with the mechanics of the accident itself. He notes that, given her symptoms continue three years after the transport accident, it is unlikely there will be any curative treatment options.
63In his second report, Professor Bittar notes the injury is likely associated with development of chronic pain syndrome leading to overall prognosis. The plaintiff’s counsel submitted this “falls within the ambit of Wylie v Richard’s formulation”.[34] He stated, “the plaintiff’s ongoing pain and associated disabilities should be considered consequences of the original injury”. The report by Mr McInerney states in 2015 she already suffered from chronic pain, which he considered a somatic expression of her emotional distress and her lupus.
[34] T133
64There is a conflict between the reports of the psychologist and general practitioner and the plaintiff’s evidence regarding her pre-accident health and the consequences of her conditions. I note that, other than over-the-counter medication, the plaintiff is not receiving any other treatment for her pain. There is no ongoing treatment to support the plaintiff’s claims. In evaluating pain and suffering Haden Engineering Pty Ltd v McKinnon[35] is authority for the proposition that in addition to what the plaintiff says about the pain, the court can have regard to evidence of what the plaintiff does about the pain.
[35] (2010) 31 VR 1 at paragraph [11]
65I note there is no statement from her general practitioner regarding her pre-accident health status nor a statement from her daughter who has been her carer pre and post-accident. I draw the inference that this evidence would not have assisted the plaintiff’s case.
66There are clearly margins around how incapacitated the plaintiff was prior to the transport accident and the extent to which they have worsened since the accident. The plaintiff also has psychological consequences flowing from it, as submitted by plaintiff’s counsel.[36] However, as noted in the report by Mr McInerney, there is evidence of the plaintiff having a chronic pain condition prior to the transport accident.
[36] T124 Counsel relied on Mr Miller’s diagnosis of Chronic Pain Syndrome at PCB 146
67In light of the conflicting evidence regarding her pre-accident physical health and the impact of her inconsistent evidence on her credit, I am not satisfied the plaintiff has discharged the onus borne by her that the consequences of either injury to her spine or to her right shoulder following the transport accident constitutes a “serious injury”, in that it is at least ‘very considerable,’ and certainly more than ‘significant’ or ‘marked.’
Section 93(17)(c) of the Act: severe long-term mental or severe long-term behavioural disturbance or disorder
What is the injury and does it arise from the transport accident?
68The plaintiff suffered from anxiety, major depression, and Post-Traumatic Stress Disorder since around the time of her arrival in Australia in 2005. In 2012, the plaintiff had a “family issue” which caused a lot of stress, and which she agreed made her psychological problems worse.[37]
[37] T25
69It was put by the plaintiff’s counsel her Post-Traumatic Stress Disorder was “relatively stable”[38] at the date of the transport accident.
[38] T5
70As noted in aggravation cases such as this, the plaintiff must show the injury arose from the transport accident and is severe and permanent.[39]
[39] AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
71On 7 November 2019, the plaintiff’s psychiatrist, Sargeeta Raghav, Dandenong Neurology, wrote a report in support of her application for a disability support pension. Dr Raghav treated the plaintiff between November 2018 and October 2021. She stated the plaintiff had “a long history of symptoms suggestive of generalised anxiety disorder for more than 20 years”. Further, “She also developed post-traumatic stress disorder after a motor vehicle accident on 24 July 2018”. Dr Raghav concluded: ‘In my opinion, her diagnosis is generalised anxiety disorder with post-traumatic stress disorder which she developed after the motor vehicle accident.”[40]
[40] DCB 240
72In her report dated 16 March 2022, she noted the plaintiff is now prescribed Cymbalta daily, 90 milligrams. She described the plaintiff as now scared of traffic, having nightmares about the accident and feeling more anxious and depressed, irritable with poor sleep, poor appetite and hypervigilant, fearful and unable to use public transport on her own. She confirmed her earlier diagnosis.
73The plaintiff’s treating psychologist, Dr Hoda Barazandeh, in a report in support of her application for the disability support pension dated 24 November 2019, noted she is diagnosed with Dysthymia and Post-Traumatic Stress Disorder, and that her mental health conditions arose from the context of her experiences in Afghanistan and Iran. Also, that her mental disorders have been exacerbated following her car accident.[41]
[41] PCB 71
74Dr Brendan Hayman, an independent consultant psychiatrist commissioned by the plaintiff, prepared a report dated 6 November 2019. Following the accident, in his opinion, there has been a worsening in her psychological state, and he diagnosed Post-Traumatic Stress Disorder due to the transport accident. He described her suffering “nightmares, flashbacks, anxiety and avoidance behaviour”.[42] He noted a worsened depressive state in the setting of her pain, and now is isolated at home when previously she tended to socialise.
[42] PCB 90
75Dr Tim Entwistle, consultant psychiatrist commissioned by the defendant for a medico-legal report, diagnosed the plaintiff as having an aggravation of the Post-Traumatic Stress Disorder with a pain-related impact upon her mental state consistent with an Adjustment Disorder with anxious and depressed mood of mild severity. Dr Entwistle detailed the plaintiff’s pre-accident past psychiatric history of depression and Generalised Anxiety Disorder. Dr Entwistle was of the view the plaintiff “was inclined to minimise aspects of her earlier pre-existing psychiatric and medical health issues in favour of the motor vehicle accident in compensable circumstances”.[43] In his view, “the degree of incapacity is largely driven by pre-existing factors together with her current symptoms …”.[44]
[43] DCB 13
[44] DCB 13
76Her orthopaedic surgeon, Mr Miller, noted the plaintiff had long-standing mental health issues which have deteriorated since the accident. He opined it likely she had developed a Chronic Regional Pain Syndrome which requires additional review by a psychiatrist.
77I accept the medical evidence reports that the plaintiff has sustained an aggravation injury of her psychiatric condition arising from the transport accident, however for the reasons which follow I do not accept the premise the opinions are based on.
What are the consequences of the injury and is the injury severe?
78Since the transport accident, the plaintiff states she is now scared to be a passenger in the car. She states her mental state is worse and she is more depressed because of her pain and limitations. She continues to have flashbacks and nightmares about the transport accident.
79She feels worthless because she cannot contribute at home, has no hope for the future, feels like her life is over, and feels very restricted as a result of her injuries.
80Prior to the transport accident she was trying to get on with her life:
“I now feel sad and depressed every day. I do not see the good in things. … I have been through a lot of trauma in my life and feel like the transport accident has made everything worse.”[45]
[45] PCB 28
81Her treating psychologist, Dr Hoda Barazandeh, in a report dated 24 November 2019, stated the plaintiff has a history of pre-existing injury issues being distinct Dysthymia and Post-Traumatic Stress Disorder related to her experience in Afghanistan and other conditions including migraines, lupus and chronic pain. In respect of her diagnosis post the transport accident, she noted exacerbation of mental disorders and symptoms, including severely depressed mood for most of the day nearly every day, diminished interest, insomnia, nightmares almost daily, excessive anxiety, recurrent thoughts of death and severe migraines.[46]
[46] PCB 71
82Psychiatrist Dr Weissman, commissioned by the plaintiff for a medico-legal report, states in his report dated 22 October 2021:
“I initially asked her ‘Did you have any psychiatric problems at all before the accident?’ …
I then asked her ‘Did you suffer from any depression or anxiety at all before the accident?’ She replied, ‘No anxiety, no depression. I was suffering from migraines, then I saw a doctor, then they were okay as well’.”’[47]
[47] PCB 122-3
83In his diagnosis, Dr Weissman states:
“in addition to the subject transport accident (which seems to have resulted in a severe group of accident-related psychiatric conditions and mental injuries …), the claimant appears to have at least a certain degree (if not a significant degree) of pre-existing and/or unrelated psychiatric and psychosocial issues.”[48]
[48] PCB 128
84Based on the experiences she has recounted, Dr Weissman goes on to say she had and has symptoms of a complex chronic Post-Traumatic Stress Disorder due to her experiences in Afghanistan and Iran.[49] In his view, the plaintiff had “moderately severe classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features directly due to the … accident itself”. [50]
[49] PCB 131
[50]PCB 131
85Dr Weissman noted the plaintiff reported:
“She still has thoughts and flashbacks, bad dreams and nightmares as well as sadness regarding the bombings in Afghanistan during the Russian invasion and also thoughts, flashbacks and sadness about the reported mistreatment of her and her children in Iran.”[51]
[51] PCB 124
86Dr Weissman diagnosed her with chronic Post-Traumatic Stress Disorder and anxiety symptoms and traumatisation features directly due to the circumstances of the accident itself. This amounts to moderately severe Post-Traumatic Stress Disorder and Chronic Major Depressive Disorder with anxious distress of moderate severity. He also diagnosed a Chronic Pain Disorder or Somatic Disorder with predominant pain.[52]
[52] PCB 131
87I have reservations with Dr Weissman’s assessment which he stated the quality of which was “heavily dependent on the quality of the claimant’s … account”.[53] The plaintiff is noted to have denied a psychiatric history to Dr Weissman. The plaintiff’s counsel objected that this was not put to the plaintiff in cross-examination citing Browne v Dunn.[54] I note Dr Weissman, the independent expert organised by the plaintiff, was not asked to review this or correct this history in his detailed second report dated 6 May 2022. Nor is the given history corrected in the plaintiff’s second affidavit dated 4 May 2022.[55] However, in my view, the plaintiff’s account of her psychiatric history is not so relevant, as Dr Weismann had plenty of other medical reports such as from Dr Barazandeh and Dr Raghav for this information.
[53] PCB 128
[54] (1893) 6 R 67
[55] PCB 24
88More importantly is the reservation I have regarding the information the plaintiff reportedly stated to Dr Weissman about her quality of life prior to the accident which he describes as:
“… good, if not very good, quality of life, level of enjoyment and pleasure, level of activity and socialisation, and physical independence. …
… mentioned that she was hopeful, optimistic and positive of being able to find some work as a designer or tailor with the assistance of Job Seeker prior to the accident.”[56]
[56] PCB 131
89My reservations are two-fold: the only evidence about her quality of life pre-accident comes from the plaintiff. Secondly, this description with the reference to her “enjoyment and pleasure” is at odds with the DASS 21 Depression Anxiety and Stress Scale assessment by Mr McInerney, her psychologist, dated 16 January 2017, in which she answers “3” being the response “Almost Always” to questions such as: “I couldn’t seem to experience any positive feeling at all”, “I felt I had nothing to look forward to”, “I felt down-hearted and blue”, and “I was unable to become enthusiastic about anything”.[57]
[57] DCB 62
90Dr Weissman’s diagnosis was of accident-related Post-Traumatic Stress Disorder and accident-related Chronic Major Depressive Disorder which represented, cross-sectionally, a moderately severe aggravation of pre-existing conditions. In his second report following his review of Dr Raghav, Dr Speck and Dr Entwistle’s reports, he is of the opinion the “egg-shell skull hypothesis” applies to the plaintiff and he confirms she has significant and moderately severe accident-related psychiatric symptoms.[58]
[58] PCB 155
91Dr Hayman, consultant psychiatrist, provided a report dated 6 November 2019. Following the transport accident, he diagnosed a worsening in her psychological state, detailing fear, nightmares and flashbacks. He stated she has developed significant features of “post traumatic stress disorder consequent to the motor vehicle accident”. He noted she had prior Post-Traumatic Stress Disorder relating to her time in Afghanistan and Iran. As well as the further features of Post-Traumatic Stress Disorder, she has developed a Chronic Adjustment Disorder with Depressed and Anxious Mood.[59]
[59] PCB 90
92The authorities make it clear that in an aggravation case such as this I am required to analyse the extent of the impairment of the body function before and after the relevant injury.[60] This is particularly relevant to this case as it is argued the plaintiff has an eggshell skull in the following passage:
“The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”[61]
[60] Petkovski v Galletti (supra)
[61] (Ibid) at 444
93The plaintiff suffered Post-Traumatic Stress Disorder, depression and anxiety prior to the transport accident. In my opinion, she has exaggerated her quality of life prior to the transport accident which is not supported in the only medical material that pre-dates her transport accident, namely medical material in support of her application for a disability support pension. For example, there is no evidence she was realistically or actively seeking work as a designer or tailor through Job Seeker prior to the transport accident, although she reported this “hope” to Dr Weissman. Her answers in cross-examination reflected her desire not to have to do the types of jobs proposed by Job seeker.
94Further, the psychiatric reports of Dr Weissman and Dr Hayman note she previously suffered flashbacks, nightmares and sadness as a result of her tragic experiences in Afghanistan and Iran, which she is now reported to suffer post transport accident. Dr Barazandeh reports she now suffers from insomnia, however Mr McInerney reported in 2015 she suffered severe sleep deprivation. I do note one difference is that the plaintiff is now on the anti-depressant medication Cymbalta.
95There is no independent evidence of the plaintiff’s condition pre-accident aside from that recorded by Mr McInerney and Dr Jaber.
96I am not of the view the plaintiff has disentangled the consequences of her prior existing condition of Post-Traumatic Stress Disorder, depression and anxiety from the consequences she now suffers from the injury arising from the transport accident. As she has not discharged that burden, I am unable to find on the evidence that her injury under s93(17)(c) is “severe” as required by the Act.
97Accordingly, for the reasons given, the proceeding is dismissed.
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