Hatzis v Transport Accident Commission
[2020] VCC 1709
•29 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05794
| FOTINI EFFIE HATZIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2019 (the Court directed that those acting for the defendant file and deliver to those acting for the plaintiff written submissions by the close of business on 4 September 2019 and further, that those acting for the plaintiff file and serve on those acting for the defendant written submissions by the close of business on 6 September 2019) and 10 September 2019 | |
DATE OF JUDGMENT: | 29 October 2020 | |
CASE MAY BE CITED AS: | Hatzis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1709 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – TransportAccident Act 1986 – s93 – serious injury – paragraph (a) of the definition of serious injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie (2001) 1 VR 79; Dressing v Porter & Anor [2006] VSCA 215; Peak Engineering Pty Ltd and Anor v McKenzie [2014] VSCA 67; Purkess v Crittenden (1965) 114 CLR 164; Watts v Rake (1960) 108 CLR 158; Jones v Dunkel (1959) 101 CLR 298
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell SC with Mr C A Sidebottom | Nowicki Carbone Lawyers |
| For the Defendant | Mr S A Smith QC with Ms A L Wood | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By way of Originating Motion, Fontini Hatzis (“the plaintiff”), seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 as amended (“the Act”) to bring common law proceedings to bring damages for an injury to her spine and, in particular, her neck (“the injury”), suffered by her arising out of a transport accident which occurred on 17 July 2013 (“the transport accident”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]The Joint Court Book (“JCB”) of the parties was tendered and marked as exhibit 1. Any reference to any documents will be by the index numbers which are referred to in the Court Book.
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“‘serious injury’ means–
(a) serious long-term impairment or loss of a body function; or
(b) …
(c) …
(d) … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the spine and, in particular, the neck of the plaintiff.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) that “the injury” suffered by her was the result of the transport accident;
(b)the requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[3] wherein a majority of the then Full Court of Victoria stated:
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. 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 judgment as to 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 or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[4]
(b)“serious injury”, as defined in subparagraph (a), can have its seriousness in part by a mental response to a physical impairment; however, a mental disorder cannot of itself constitute or be the producer of the impairment of a body function.[5]
[3][1992] 2 VR 129
[4](op cit) at 140. See also Mobilio v Balliotis [1998] 3 VR 833
[5]See Richards & Anor v Wylie (2001) 1 VR 79
The issues
7 Senior Counsel for the defendant, although accepting that there is some form of abnormality in the cervical spine, submitted that the probability is that such abnormality is “simply age related” or, of course, something more significant. It was submitted that the weight of evidence is there is nothing of particular significance in the pathology of the cervical spine. Significantly, the plaintiff has been diagnosed – seemingly universally – of suffering schizophrenia with associated psychosis and some of the treating practitioners have diagnosed a Schizoaffective Disorder. In this respect, the case of the defendant was that “a large sweep”, if not all of the plaintiff’s pain, “is psychogenically driven rather than organic”. If there is some organically-based pain condition, that it has been “subsumed or submerged” within the psychotic schizophrenic condition.
The background of the Plaintiff, her “injury” and medical treatment
8 The plaintiff relies on two affidavits: the initial affidavit sworn on 27 January 2016[6] and a further affidavit sworn on 2 August 2019.[7] The plaintiff gave evidence that she had read both affidavits the night before and that the contents were true and correct.[8]
[6]Exhibit 1 at pages 5-18 JCB
[7]Exhibit 1 at pages 19-28 JCB
[8]Transcript (“T”) 16, Line (“L”) 2-5
9 By way of her first affidavit, the plaintiff deposes that she was born in October 1965 (making her now fifty-five years old) and she resided with her husband and three children (who, in 2016, were aged six, ten and fifteen).
10 The plaintiff completed Year 12 at Thornbury Secondary School in around 1983 and in around 1987, she graduated from Monash University with a Bachelor of Science. After graduation, she commenced employment with the Royal Melbourne Hospital as a research assistant for the University of Melbourne and remained there for about eighteen months. Since then she has been employed in the following capacities:
(a)from in or around 1989, she commenced employment at the Royal Children’s Hospital for the Murdoch Institute, working in the capacity of a research assistant, where she remained for approximately seven years;
(b)in or around 1995, she commenced employment with Amrad as a research assistant, where she remained in that capacity for approximately nine years;
(c)in or around 2004, she commenced employment at the Walter and Eliza Hall Institute as a research assistant, where she remained in that capacity for approximately four-and-a-half years;
(d)in around 2011, she obtained part-time employment as a research assistant at Monash University, researching Type 2 Diabetes and obesity. She was working approximately sixteen hours per week – three days a week for five hours a day – although sometimes more. Her main role was to provide scientific support to research staff. Her main duties included undertaking research activities such as setting up and maintaining sampling equipment, extracting and processing samples, maintaining an inventory of sampling equipment, and preparing scientific reports including calculations and data entry. She was working in this capacity at the time of the transport accident.
11 The plaintiff describes the following health issues occurring prior to the transport accident:
(a)in her late twenties, she suffered from depression in the context of family issues and consulted the psychiatrist, Associate Professor David Horgan, for a few months and was prescribed antidepressant medication;
(b)when in her thirties, she suffered from another bout of depression. At the time she was struggling to fall pregnant with her second child and she was also under a lot of pressure at work. She again consulted Professor Horgan on about two or three occasions and was prescribed antidepressant medication which was taken for about six months. She made a good recovery from that depression, which was resolved years prior to the transport accident;
(c)in around 2000 and 2004, she underwent gynaecological and laparoscopy procedures, which both went without complication, and she regained good recovery.
12 Prior to her transport accident, the plaintiff describes herself as an active, independent person who took great pride and joy in remaining active and healthy. She describes how she completed household tasks and shopping independently, and also completing housework which would involve vacuuming and dusting the whole house in one day, and was also responsible for completing the grocery shopping for the week and preparing food for her family, and washing duties for her growing family.
13 The plaintiff also used to enjoy spending time with her children and exercising with them in the park. Some of the activities involved kicking a football and playing tennis in public tennis courts with her children, and there was much interaction with her children.
14 Again, prior to the transport accident, the plaintiff enjoyed maintaining an active lifestyle, in that she would go to the Contours Gym in Ivanhoe about twice a week, where she would lift weights and do cardiovascular exercises. She would also attend group classes at the Contours Gym and undertake rumba and dance lessons.
15 The plaintiff would also visit her retired parents and assist with their shopping and banking, and take them to medical appointments. Frequently she would go away for weekends with her family, particularly to Lorne, and on occasion, longer trips to Queensland or rural Victoria.
16 Again, prior to the transport accident, the plaintiff described herself as a social person, taking great pride and enjoyment in entertaining her friends and family. She would often host large family dinners and would complete all the cooking and cleaning independently.
17 In particular, the plaintiff enjoyed keeping up to date with new scientific research and developments and would spend time reading journal articles and scientific publications prior to the transport accident.
18 On 17 July 2013, the plaintiff was rear-ended by a vehicle when she was stationary, waiting in traffic. Her car consequently hit a taxi in front of her as a result of the collision. Following the transport accident, she drove her car home and her husband drove her to hospital later that night. As a result of the transport accident, the plaintiff alleges that she suffered the following injuries:
(a) injury to her neck;
(b) injury to her right shoulder;
(c) injury to her upper back;
(d) injury to her lower back; and
(e)psychological injury including, but not limited to, stress, anxiety and depression.
19 The plaintiff has consulted and received treatment from the following doctors:
(a)on the day of the transport accident, she attended the Austin Hospital and was subsequently discharged from hospital later that night;
(b)on 18 July 2013, she consulted Dr Virendra Berera, a general practitioner, at the Victoria Road Medical Centre. Dr Berera arranged for her to undergo an x-ray of her cervical spine and right shoulder later that day;
(c)on about 19 July 2013, she consulted Dr Berera for the result of those examinations and was given Voltaren for her pain;
(d)on 23 July 2013, she consulted her local general treating practitioner, Dr Chris Clifopoulos, at the Croxton Medical Centre, in relation to her neck pain, restriction and stiffness following the transport accident. Dr Clifopoulos arranged for an MRI scan to be taken of her cervical spine and an ultrasound of her right shoulder. He also prescribed the plaintiff with Norgesic, 35 milligrams-450 milligrams, for the relief of pain symptoms, and thereafter, a number of medications have been prescribed;
(e)on about 25 July 2013, she underwent an MRI scan of her cervical spine. On 30 July 2013, Dr Clifopoulos referred her for physiotherapy treatment, and she commenced physiotherapy with Mr Rodney Lincoln at the Plenty Road Physiotherapy Clinic on 1 August 2013. The plaintiff deposes that she was told by Mr Lincoln she was suffering from “cervical disc and nerve root irritation and he advised me to commence a program of physiotherapy”.[9] She attended physiotherapy on a weekly basis;
[9]Exhibit 1 at page 8 JCB
(f)on about 16 August 2013, she consulted Dr Clifopoulos, who prescribed her with Panadol, 500 milligrams, and she was referred to the neurosurgeon, Mr Patrick Chan;
(g)the plaintiff began to experience symptoms of anxiety and depression following the transport accident, causing Dr Clifopoulos to refer her to a psychologist, Dr Thomas Clifopoulos, at Energia Counselling;
(h)following the transport accident, she received regular acupuncture treatment and massages at Chinan Chinese Medicine in Northcote;
(i)on about 11 December 2013, she consulted the pain specialist, Dr Terence Lim, who found that her right brachioradialis triggerpoint had caused pain to radiate to her thumb. She was advised by Dr Lim that she should attend the North Eastern Rehabilitation Centre to be assessed for suitability for a rehabilitation program and she was also prescribed Lyrica. Dr Lim also referred the plaintiff to a psychiatrist, Dr Naomi Elliot;
(j)on or about 31 January 2014, she underwent a CT scan on her lumbosacral spine on referral from Dr Clifopoulos and on 18 February 2014, she consulted the neurosurgeon, Mr Patrick Chan, who advised her to continue with conservative treatment;
(k)she commenced a pain rehabilitation program at the North Eastern Rehabilitation Centre on 17 June 2014, attending twice-weekly sessions for about eight weeks, and her treatment included physiotherapy, hydrotherapy, psychological treatment and occupational therapy. Following the initial eight-week program, she attended three fortnightly reviews and then three-monthly reviews. She was discharged from the program in or about December 2014, and she comments that although the program did not succeed in lessening her pain, it was beneficial in providing education with regards to her injuries and techniques to manage them;
(l)on or about 9 September 2014, she underwent an MRI scan of her cervical spine, again on the referral of Dr Clifopoulos, and again consulted the neurosurgeon, Mr Chan, on 12 November 2014. At that time, Mr Chan explained that surgical intervention was not appropriate and advised her to return to Dr Lim for advice on how to complete exercises to improve her core muscles. She ceased consulting Mr Chan at that time;
(j)on or about 9 December 2014, she attended a review appointment with Dr Lim and he discharged her from the pain rehabilitation program;
(k)on or about 27 February 2015, she commenced physiotherapy with Mr Nando Giovannucci at Thornbury Physiotherapy, and consulted with him one to three times per week until about June 2015;
(l)in August 2015, she went on a trip to Greece with her family. Prior to leaving, she obtained advice from her general practitioner as to the best way to manage her injuries. Although over the 20-hour flight she stood and walked around the cabin as much as possible, the plane trip did exacerbate her injuries. When in Greece, she did her best to ignore the pain which was present throughout her time overseas;
(m)at the time of swearing her first affidavit, she continued to consult the psychologist, Mr Thomas Clifopoulos, approximately every three weeks (ceasing in July 2015) and also continued to consult her general practitioner, Dr Chris Clifopoulos, once or twice a month. She continues to take three to eight Panadol 500-milligram tablets a day, and uses Difflam Gel. She has also been prescribed Valpam at night, and uses this when required. In particular, she described the frequency and intensity of pain in her neck, right shoulder and low back in the following terms:
“45) Since the transport accident, I have suffered and continue to suffer from pain, discomfort and restriction of movement in my neck and upper back. The pain is worse on the right side of my neck. The pain in my neck feels sharp and I experience stiffness in my neck on a regular basis. The pain in my neck is present nearly all the time but fluctuates and is aggravated by simple activities. For example, leaning forward or prolonged sitting down with my neck in a static position causes my neck pain to increase. I have trouble getting up from a couch and other furniture which is low to the ground. I struggle to attend at the hair dressers, as holding my head and neck in the position leaves me in exacerbated pain throughout the two days following an appointment. I now avoid going as much as possible. Turning my head from side to side also causes me to experience exacerbated pain in my neck, dizziness and ringing in the ears. I also find that lifting objects over my head, causes pain in my neck and upper back. I find that if I do exacerbate my neck pain, I will often suffer for days afterwards.
46) The pain in my neck radiates upwards and I have experienced frequent headaches and migraines since the transport accident. I find it difficult to concentrate and participate in activities when I am experiencing a particularly bad headache or a migraine. I often have to take Panadol when I have a headache or go lie down.
47) The pain in my neck also radiates downwards and I frequently experience referred pain, discomfort and restriction of movement in my right shoulder. When this happens my right shoulder and back feel achy and tense. Due to the restriction of movement in my neck I have difficulty looking up and reaching for things off shelves and as a result I depend on others to assist me. This makes shopping feel like it’s a burden when in the past it was a very enjoyable chore and pastime for me. If things are higher than eye level I often have to step back to view it and find this very frustrating. If I try to force movements beyond my restriction I feel a lot of prolonged pain in my neck.
48) As a result of the transport accident I suffer pain and restriction in my right shoulder. This pain is often exacerbated by repetitive movement of my right arm. I have experienced a restricted range of movement in my right shoulder since the transport accident and I now find it difficult to raise my right arm at or above shoulder height because this causes an increase in pain. The pain and restriction in my right arm makes lifting objects extremely difficult. The pain can often extend into my hands and fingers in the form of pins and needles and I also suffer from numbness and weakness. In particular, I notice weakness in my right hand when I am writing, clenching my fist or opening up a jar or bottle. When I do force my hand to clench to do other activities, pain radiates to [my] arm and shoulder. I struggle to lift heavy items. I depend on others to lift and push heavy things such as the washing basket full of wet clothes, otherwise I will suffer from severe pain in my neck, arm, shoulder, upper neck and lower back for several days. These symptoms are particularly difficult for me to manage because I am right handed.
49) Since the transport accident, I suffer from regular pain, discomfort and restriction of movement in my upper and lower back. The pain is often exacerbated by performing simple tasks. For example, bending over to pick up my children’s toys or clothes causes an aggravation of my pain symptoms in my lower back. Bending or leaning forward when performing activities including mopping, vacuuming or cooking also causes my shoulder, upper and lower back pain and discomfort to increase. I find the pain in my back also prevents me from walking or standing for long periods of time. If I do overdo it trying to complete the household tasks, for example, and aggravate the pain symptoms in my back, I often suffer for days afterwards. The pain in my lower back often radiates into my tailbone, buttocks and legs and at times these symptoms make it difficult for me to sit for prolonged periods at a time.
50) I fear that my gait has shortened since the accident, I can only walk shorter distances. Walking longer distances causes pain in my lower back, hips, legs and my big toe on my right leg. In the past I would walk five kilometres with friends 3-4 times a week. It made me feel good and it was a good opportunity to catch up with my friends. Unfortunately I now avoid this activity due to pain. I find it difficult climbing up stairs as this causes me more pain and sometimes brings on nausea.
… .”[10]
[10]See exhibit 1 at pages 10-12 JCB
20 Since the transport accident, the plaintiff deposes that:
(a)she has difficulty getting out of bed in the mornings and has to move slowly out of bed;
(b)the pain in her neck, right shoulder, upper back and lower back is also triggered by colder temperatures so she tries to avoid air‑conditioned places or keep visits in air‑conditioned places minimal;
(c)since sustaining her transport accident injuries, she experiences difficulty completing cleaning tasks.
21 Prior to the transport accident, the plaintiff would complete the whole family’s washing and ironing, including scrubbing stains, hanging out the washing on the clothesline and ironing. Due to the pain and restriction of movement in her right shoulder, she has difficulty raising her right arm after hanging out the washing. Using an iron is another difficult task and she finds repetitive movement of her right arm when ironing, and the prolonged standing involved, causes the pain and discomfort in her right arm and shoulder, and her right upper and lower back, to increase. Her husband has to assist.
22 Since suffering the injuries in the transport accident, the plaintiff has had:
(a)difficulty completing the shopping for the household each week and regularly needs the help of her husband to do shopping after work as some objects are too heavy for her as a result of her injuries. For example the plaintiff asserts that 3-litre cartons of milk or tins of oil are too heavy for her to carry because of the pain which is caused in her shoulder;
(b)she has difficulty washing and styling her hair and finds it difficult to raise her right arm to wash her hair when having a shower. She also finds it difficult to hold a hair dryer in her right arm for long periods of time, and move her right arm around when she is drying and styling her hair;
(c)she experiences difficulty driving a motor vehicle and experiences an increase in pain when performing a head check through irritation of her neck. Her pain in the lower back is also exacerbated when entering and exiting the vehicle, as well as sitting in the vehicle for long periods of time. As a result, she sold her vehicle and bought an SUV which has a high seat that is more suited to her injuries. Her right shoulder and arm pain is exacerbated when holding the steering wheel for long periods;
(d)she finds it difficult to actively play with her children as she used to – for example she finds it difficult to play tennis with her children due to her upper limb and neck injuries. Swimming in the family pool is also difficult for her due to pain in her neck, and consequently she is less active and involved as a mother due to the injuries that she now suffers causing her pain;
(e)she has not returned to Contours Gym or attended gym classes, as she believes that undertaking exercise may exacerbate the pain associated with her upper back, shoulder, neck and lower back injuries so has avoided it;
(f)she has not hosted or entertained as often as she did prior to sustaining the transport accident injury. The cooking and cleaning involved when hosting a dinner exacerbates the pain in her upper arm, shoulder and neck, which has lowered her confidence and motivation in entertaining family and friends. As a result, she does not see her close friends and some family members as often as she would like, and consequently feels isolated and lazy;
(g)she has difficulty in assisting her parents with their shopping, banking and driving them to medical appointments and struggles to assist them with the shopping on her own;
(h)she has not enjoyed time away as much as she used to, and she and her husband limit travel to much more local destinations instead of longer trips due to her difficulty remaining seated in the car for a long period. As a consequence, she has had less time alone with her husband, and her husband has become more stressed because he has more pressure at home now and this has put strain on their relationship;
(i)she has difficulty in performing research and reading online articles in her leisure time because sitting at her computer for extended periods of time exacerbates the pain in her lower back, right shoulder and neck. If she pushes through the pain and works for longer, after about 30 minutes the pain will be back with her all day;
(j)she experiences tension in the family relationships and she has become more frustrated with her husband and children. When she experiences severe pain symptoms out of her home and she is with her children, she will often hurry them into the car whilst becoming angry with them. She does not have the patience to listen to them when the pain is severe, and as a result, her children get upset and question why they often leave things early. Her husband will often get frustrated that upon coming home from work, he is required to clean and undertake household duties that she has not been able to manage that day. This has affected their relationship;
(k)she has experienced a loss of libido and the pain in her neck, lower back, upper back and shoulder makes engaging in physical intimacy extremely difficult. This in turn affected her relationship with her husband significantly;
(l)she has experienced difficulty sleeping each night as the pain in her neck, right shoulder and lower back make finding a comfortable sleeping position quite difficult. She often wakes multiple times throughout the night due to pain in those areas. Sometimes she also gets woken up by breathlessness during the night, or leg pain. She was admitted to hospital in May 2015 due to difficulty with breathing, which caused a lot of distress to her family and friends. She also has difficulty getting to sleep some nights because her mind races while she thinks about whether her symptoms will ever improve, the deteriorating relationship with her family, including her extended family, and their lack of understanding of her injuries, thinking that she is lazy and not trying hard enough;
(m)she has experienced symptoms of depression and has experienced lowered mood on a regular basis, and this is particularly bad when she experiences a flareup of pain;
(n)she has also experienced anxiety and has become an anxious driver since the transport accident. In particular, she frequently becomes anxious when approaching stopped traffic as she re-lives the circumstances of the transport accident;
(o)she has also experienced difficulty concentrating and maintaining focus – these issues are particularly bad when experiencing a lot of pain. Generally, when the pains are at their worst, she has difficulty breathing and experiences chest pains as well as suffering from stomach pain.
23 The plaintiff deposes that she considers that the transport accident injuries have “robbed me of my identity and my independence”.[11] Whereas she was a happy, cheerful individual, she is now anxious and depressed and generally pessimistic about life.
[11]See exhibit 1 at page 17 JCB
24 The plaintiff returned to work as a part-time research assistant two weeks after the transport accident, but only lasted one day. She found it very difficult to manage due to her injuries – for example she found the repeated use of her right hand whilst using a pipette and frequent neck flexion bending down while conducting experiments caused her neck and upper and lower back symptoms to increase. Furthermore, using a computer for data entry caused symptoms in her neck, right shoulder and arm, and right lower back to increase. Furthermore, the standing and leaning forward required whilst conducting experiments also aggravated her low-back pain – “I was unable to continue and stopped working the same day I returned to work. My contract was not renewed and I have not returned to work since.” She worries about her ability to return to work in the future and believes she will experience difficulty performing research assistant tasks due to her ongoing symptoms from her transport accident injury.
25 In her second affidavit, the plaintiff deposes that there―
“… has been little change in the nature of my neck and back conditions. I continue to experience constant pain and discomfort in both regions of my spine on a daily basis. In order to manage my symptoms, I have had quite a lot of treatment and medication over the past few years and I have also undergone further radiological investigation.”[12]
[12]See exhibit 1 at page 20 JCB
26 The plaintiff also describes her psychological state has “deteriorated further” and, as a result, she has –
“… really struggled with my mental health these past few years and have experienced episodes of psychosis which led me to be hospitalised on a couple of occasions.”[13]
[13]See exhibit 1 at page 20 JCB
27 Although the plaintiff has not returned to any paid employment since her first affidavit, she has undertaken some volunteer work at a local St Vincent’s store as a shop assistant. She commenced this activity in April 2019 and attended twice a week for three hours at a time. Although she found it beneficial for her mental state by being out of the house and volunteering, she found it physically taxing, and at the end of her three-hour shift, she was typically quite fatigued and her neck and back pain was worse. In particular, she struggled hanging up suits, dresses and other clothing items on racks and shelves, and found that serving customers in busy times wore her down. In May 2019, she suffered a flareup of her pain and ceased the volunteer work.
28 On 12 March 2016, shortly after her first affidavit, the plaintiff suffered a flareup of neck and back pain and also experienced chest pain. She was taken by ambulance to the Epworth Hospital, where she underwent a CT scan on her neck and brain, before being discharged later that day.
29 Over the next few weeks, her pain levels were hard to control and this caused her mental health to begin to “unravel”. She was troubled by severe depression and fluctuating mood, and became increasingly anxious and on edge. She was overwhelmed by the pain that she experienced and began to suffer dark thoughts and suicidal thinking, and became quite irritable and prone to angry outbursts. She felt increasing periods of paranoia, culminating in her attending the Epworth Hospital on or about 8 May 2016, where she was assessed but discharged home once more later that day. The following day, feeling no better, the plaintiff was taken by ambulance to St Vincent’s Hospital, where she was admitted as a psychiatric patient. She subsequently remained there and received psychiatric inpatient counselling and treatment over the next six weeks. She was eventually discharged on 20 June 2016.
30 After that discharge, the plaintiff attended her psychiatrist, Professor David Horgan, on 24 June 2016. She notes at that time, her mental state was poor and she was battling extreme insomnia. Professor Horgan prescribed the plaintiff 100 milligrams of Seroquel which seemed to help with her mood. Over the following months, he trialled her on several other medications, including antidepressants and anti-anxiety medication.
31 The plaintiff was referred for a further MRI scan of her spine, which was undertaken on 7 July 2016. The plaintiff understood that such report revealed a focal disc protrusion at C4-5 and a disc bulge at C5-6 levels. She deposes that she also understood that disc desiccation was also reported at L4-5 and L5-S1 in her back, with some right paracentral annular tearing at the L5-S1 level.
32 Later that year, on 23 November 2016, the plaintiff underwent a further MRI scan on her lumbar spine, which she understands confirms the presence of the disc bulge at the L4-5 level in her lower back. In order to treat her ongoing neck and back pain, she has been attending the Premier Sports and Spinal Clinic from about April 2017, where she commenced dry needling sessions which focused on her neck and lower-back problems.
33 During 2017, the plaintiff’s neck was “quite troublesome”[14] and she experienced persistent pain, stiffness and restricted movements. Because of this she was referred to a neurologist, Mr Janaka Seneviratne, who examined the plaintiff on 26 May 2017. He recommended that the plaintiff have further scans and see a pain specialist.
[14]See exhibit 1, paragraph [14] at page 22 JCB
34 On or about 1 June 2017, the plaintiff experienced a significant flareup with her neck when undertaking some postural exercises that her doctors had instructed her to perform. She became troubled by numbness in her arms and hands, causing her to be taken to the Epworth Hospital, where she was admitted as an inpatient for three days. While an inpatient at the hospital, she underwent a further MRI scan of her neck on 2 June 2017 and she understands that such scan confirmed the presence of disc bulges at C4-5 and C5-6. She was prescribed strong painkillers to control the pain and was monitored at the Epworth Hospital, before being discharged on 3 June 2017.
35 The plaintiff was then referred to the neurosurgeon, Ms Caroline Tan, for review, and initially consulted that doctor on 8 June 2017, at which time a recommendation was made that she undergo nerve-conduction studies, which were undertaken on 22 June 2017.
36 After the nerve-conduction studies, the plaintiff was referred back to Dr Tan on 30 June 2017 and the plaintiff deposes that at such consultation, Dr Tan explained to her that she had a disc problem in her neck, which was causing the referred symptoms into the right arm and hand. Dr Tan recommended that the plaintiff undergo an anterior cervical decompression fusion operation.
37 The plaintiff deposes that she was extremely alarmed about the nature of such surgery and fearful of undergoing an operation that will result in a steel cage being inserted into her neck and, accordingly, declined to have that operation.
38 The plaintiff deposes that not long after, her mental health deteriorated, once more due to the extreme pain she was experiencing. Her dark thoughts, depression, anxiety and paranoia got worse, culminating in a further episode of psychosis which required a further psychiatric admission at St Vincent’s Hospital from 23 September 2017 to 20 October 2017. At that time, she was placed on a six-month Community Treatment Order. After her discharge from hospital, the plaintiff notes that she worked hard on her rehabilitation and in particular, commenced attending Mr Ben Leonard, a physiotherapist at Premier Sports and Spinal Clinic, for ongoing treatment for her neck and back pain. She undertook exercises that the physiotherapist taught her and also took regular painkillers to stay on top of her pain.
39 During 2018, the plaintiff attempted to wean herself off painkilling medication as she disliked the side effects of the tablets and the drowsiness and abdominal issues they caused her. Rather, she became reliant on heat packs, Voltaren Gel and moderating her level of activity. She had found that the more active she was, the more she suffered pain in her neck and back, and as a result she withdrew into “[her] shell and spent most of [her] time resting at home”.[15]
[15]See exhibit 1, paragraph [22] at page 24 JCB
40 Throughout 2018, the plaintiff continued to attend her general practitioner, Dr Clifopoulos, regularly, but ceased treatment with Professor Horgan and commenced treatment with the psychiatrist, Dr Kokkinias. She also had psychiatric treatment at the Hawthorn Community Mental Health Centre, but she did not require any further inpatient admissions to hospital.
41 At the time of swearing her second affidavit, the plaintiff continued to struggle with chronic pain in her neck, which is present every day and fluctuating in severity, depending on her level of activity. Her neck remains extremely stiff and rigid and she experiences regular episodes of muscle spasms through her neck, where she feels like the muscles are pulsating and cramping on her.
42 The pain in the plaintiff’s neck continues to radiate into her upper back and right shoulder and this referred pain is more of a “sharper, electric nerve type pain and occurs off and on most days”. She also experiences intermittent pins and needles and numbness in her right hand. In particular, she lacks strength in her right arm.
43 In her lower back the plaintiff experiences “a deep, dull ache around [her] central low back region”.[16] The plaintiff comments that she frequently feels stiff, and the stiffness is exacerbated by remaining seated in one position for extended periods. She often needs to get up and stretch her legs and walk around after being seated for much more than an hour at a time.
[16]See exhibit 1, paragraph [27] at page 25 JCB
44 The plaintiff’s range of movement in her back is “limited” and she struggles to bend fully forward. However, since her earlier affidavit, there has been some improvement in the referred symptoms to her legs and buttock and she no longer experiences any sciatic-type pain.
45 In addition to her physical condition, the plaintiff describes her emotional state as being a major concern, although she has not experienced any further episodes of psychosis since 2017 and that condition is well managed by medication. However, she continues to struggle with lengthy and prolonged bouts of depression and anxiety and her mood fluctuates considerably from day to day. In particular, she describes feeling “sad, miserable and upset much of the time … flat, down and disillusioned because of the persistent pain in [her] spine and the limitations that this imposes upon [her] life”. [17]
[17]See exhibit 1, paragraph [30] at page 25 JCB
46 The plaintiff deposes that she struggles with “anxiety” and constantly feels worried about her family, her future and her ability to get back to work.
47 The plaintiff’s domestic, recreational and social activities remain heavily restricted as set out in her earlier affidavit, whereas she goes to church on average once per month, she has very few other interests and only occasionally attends the local shops, but rarely goes out to social events and other occasions.
48 The plaintiff deposes that she continues to be restricted in her ability to interact with her children and is not the “active mum” she would like to be. She cannot run around with her children and join in many of their sporting activities and games and she misses a lot of her son’s soccer and tennis matches, and instead relies on her husband to take her son most weeks.
49 In order to manage her psychiatric state, the plaintiff has monthly injections of paliperidone and now sees Dr Kokkinias, not at the Hawthorn Clinic, but privately. Up until approximately May 2019, she was taking quetiapine, 100 milligrams, to help with her anxiety and interrupted sleep. In May 2019, she experienced a bad flareup of pain and Dr Kokkinias increased the daily dose of quetiapine to 300 milligrams a day, as he feared the pain would trigger psychosis.
50 In June 2019, the plaintiff commenced physiotherapy treatment with North Balwyn Physiotherapy, where she attends on a weekly basis. She continues to apply heat packs and wheat bags to her back and neck several times per week and sometimes more during cold weather. She continues to use Voltaren Emulgel to help with flareups of pain.
51 In particular, the plaintiff deposes that had the transport accident not occurred, she would have little doubt she would be back working full time by now. It had been her intention to resume full-time employment once her son, Gabriel, had started and settled into primary school.
52 The plaintiff’s inability to return to her career as a research assistant has been most upsetting for her. She had worked hard to establish a meaningful career and found her work both fulfilling and rewarding. She misses being able to work and misses her former lifestyle.
Radiology
53 Before referring to the treating doctors of the plaintiff, I set out the extensive radiology undertaken by the plaintiff over the years since her transport accident:
(a)One of the initial treating general practitioners, Dr Virendra Berera, arranged for the plaintiff to have plain x-rays undertaken of her cervical spine and right shoulder on 18 July 2013 (the day after the transport accident). In relation to the cervical spine, the radiologist concluded:
“… Mild C4-C5 and moderate C5-C6 disc degeneration with uncovertebral osteophytic encroachment into the adjacent exit foramina.”[18]
[18]See exhibit 1 at page 114 JCB
The radiologist also reported, in relation to the right shoulder, that it was a “normal examination”;[19]
[19]See exhibit 1 at page 114 JCB
(b)The main treating general practitioner, Dr Clifopoulos, arranged for the plaintiff to undergo an MRI scan of her cervical spine and an ultrasound of her right shoulder on 25 July 2013.
In relation to the MRI scan of her neck, the radiologist concluded:
“1.Disc osteophyte complex at C4/5 results in mild central canal and mild right neural exit foraminal stenosis with mass effect upon the exiting right C5 nerve.
2.Disc osteophyte complex at C5/6 results in mild central canal, mild right and mild to moderate left neural exit foraminal stenosis with mass effect therefore upon the existing right C6 nerve.
Depending on the dermatomal distribution of the patient’s symptoms further CT guided right C5 and/or right C6 selective nerve root block may be of benefit.”[20]
[20]See exhibit 1 at page 87 JCB
In relation to the right shoulder, the radiologist reported:
“Mild supraspinatus and tendinosis and mild subacromial bursitis, without features of impingement on dynamic assessment. No rotator cuff tendon tear.”[21]
[21]See exhibit 1 at page 87 JCB
(c)The treating general practitioner, Dr Clifopoulos, arranged for the plaintiff to have a CT scan of her lumbosacral spine on 31 January 2014. The radiologist reported “No abnormality is noted”;[22]
[22]See exhibit 1 at page 83 JCB
(d)An MRI scan of the cervical spine, arranged by Dr Clifopoulos on 9 September 2014. The radiologist concluded:
“Degenerative changes as described above most pronounced at C4/5 and C5/6 with neural foraminal narrowing most pronounced at G5/6 on the left, recommend correlation with patient’s signs and symptoms for significance.”[23]
[23]See exhibit 1 at page 90 JCB
(e)An MRI scan of the whole spine, organised by Dr Clifopoulos on 21 May 2015. The radiologist concluded:
“Disc osteophyte complexes at C4/5 and C5/6 level resulting in impingement of the exiting left C5 and C6 nerve roots.
No further cause of radiculopathy identified.”[24]
[24]See exhibit 1 at page 93 JCB
(f)A CT scan of the brain and cervical spine arranged by Dr Jack Bergman (Emergency Department of the Epworth Hospital), on 12 March 2016. The radiologist concluded:
“1.No intracranial abnormality.
2.Lower cervical spondylosis resulting in C5/6 mild spinal canal stenosis and severe left C5/6 foraminal stenosis.
3.Incidental bone lesion right frontal bone supraorbital rim without aggressive features is non specific. Differentials include epidermoid, haemangioma, with less likely differential of metastasis. If there is prior cross-sectional imaging in this position, review for its interval stability would be advised in the first instance.”[25]
[25]See exhibit 1 at pages 81-82 JCB
(g)An MRI scan of the whole spine undertaken on 7 July 2016. The radiologist concluded:
“There is no convincing high grade central canal or foraminal stenosis in the spinal axis.”[26]
[26]See exhibit 1 at pages 95-96 JCB
(h)An MRI scan of the lumbar spine organised by Dr Clifopoulos and undertaken on 3 July 2016. The radiologist concluded:
“1.No neural compressive pathology.
2.Minimal disc bulge at L4/5 and mild bilateral L4/5 facet joint arthropathy.
3. L5/S1 disc osteophyte complex eccentric to the right is non neural compressive.”[27]
(i)An MRI scan of the cervical spine arranged by Dr Ken Ooi (Emergency Department of the Epworth Hospital) and undertaken by the plaintiff on 1 August 2017. The radiologist concludes:
“Disc bulges noted at C4/5 and C5/6 causing mild to moderate canal stenosis. The buldgin [sic] disc is touching the cord anteriorly. There is no myelomalacia. There is bilateral foraminal stenosis at C4/5 and C5/6 as described.”[28]
[27]See exhibit 1 at pages 110-111 JCB
[28]See exhibit 1 at pages 84-85 JCB
54 I now refer to the treatment and opinions of the various doctors and health professionals who have treated the plaintiff.
Attendance at the Austin Hospital on the day of the transport accident
55 The plaintiff relies on the Discharge Summary of the Austin Hospital dated 17 July 2013.[29] The plaintiff attended the Emergency Department of the Austin Hospital with her husband on the day of the transport accident. The Discharge Summary records that she attended the hospital at 6.42pm, and the following history was recorded:
[29]See exhibit 1 at page 71 JCB
“47yo
Stationary in car, someone bumped into her from behind & then she collided with car in front
Nil headstrike/LOC [loss of consciousness]
Wearing seatbelt
Now has shoulder & neck pain
Paracetamol with nil result
Nil weakness/sensory loss
o/e
GCS 15 nil distress
Nil midline tenderness
Palpable paraspinal & traps tenderness
Upper limb (power tone sensory) N neuro exam
Good result w ibuprofen & heat pack.”[30]
[30]See exhibit 1 at page 71 JCB
56 On discharge, the plaintiff was diagnosed with “whiplash” and her discharge plan involved outpatient physiotherapy, together with regular paracetamol and NSAID. All this information was set out in the Discharge Summary addressed to her then treating general practitioner, Dr Virendra Kumar Berera.
Dr Virendra Berera
57 The evidence of the plaintiff is that she attended Dr Berera on 18 July 2013 at the Victoria Road Medical Centre and that doctor arranged for her to undergo an x-ray of the cervical spine and right shoulder later that day. I have already made reference to that radiology.[31] The radiologist reported mild C4-5 and moderate C5-6 disc degeneration with uncovertebral osteophytic encroachment into the adjacent exit foramina and also recorded that the study of the right shoulder was “normal”.
[31]See exhibit 1 at page 114 JCB
58 Although there was no report from Dr Berera, the plaintiff gave evidence that she re-attended him on 19 July 2013, at which time she obtained the results of those radiological examinations and was given Voltaren for the pain.
59 Under cross-examination, the plaintiff accepted that Dr Berera also gave her some days off work and after approximately five days she went back to him, complaining that she was still in pain. At that time, Dr Berera purportedly put his hands in the air and said “what do you want me to do?”. At that time, the plaintiff was given five more days off work. In particular, the following evidence was given:
Q:“For how long had Dr Berera been your GP before this car accident?---
A:Several years. Prior to that Dr Clifopoulos was our family doctor. When I was single I would see Dr Clifopoulos but Dr Berera bulk billed so I saw Dr Berera but I wasn’t a regular at the GP because I didn’t have any issues, health issues.
Q:I understand but you got married when you were 32, is that correct?---
A:Correct.
Q:So in 1997?---
A:1997?
Q:Yes, is when you got married?---
A:1998.
Q:Was Dr Berera your family doctor from that time onwards?---
A:Yes.
Q:So he had been your family GP for 15 years by the time of this car accident, is that right?---
A:That’s right.
Q:Is this correct: you were concerned about the manner in which he was dealing with your symptoms from this car accident and that’s why you went and saw Dr Clifopoulos?---
A:Well, I was in diabolical pain and there was nothing more he could do for me so I thought I would get another opinion.
Q:The hospital had not suggested to you that there was any problem of significance with you, did they, when you went and saw them?---
A:No.”[32]
[32]T18, L21 – T19, L17
The evidence of Dr Chris Clifopoulos
60 The plaintiff relies on the reports of Dr Clifopoulos, dated 21 December 2015,[33] 20 March 2017[34] and 4 February 2015.[35]
[33]See exhibit 1 at pages 29-31 JCB
[34]See exhibit 1 at pages 32-34 JCB
[35]See exhibit 1 at pages 77-79 JCB
61 Dr Clifopoulos reports that the plaintiff attended his practice (post the transport accident) on 23 July 2013 and gave a history that she was the driver of the vehicle that had been involved in an accident when she had been rear-ended suddenly by a taxi, sustained significant damage to her car and been pushed quite a distance.
62 The plaintiff gave a history that she remembered suffering severe neck pain and right shoulder injuries. At the time of the transport accident, she was wearing a lap/sash-type seatbelt, the airbag did not deploy, and she had not been drinking prior to the accident. No ambulance or police attended the accident.
63 At the time of the first consultation, Dr Clifopoulos made an examination and formed the opinion that the plaintiff had suffered a C5-6 and C4-5 disc injury and musculoligamentous injury to her neck, shoulder and right arm. Dr Clifopoulos noted that such a presentation would be classified as a “whiplash type syndrome as well as right shoulder and arm radicular pain”.[36] Also, Dr Clifopoulos considered the plaintiff had suffered significant post-traumatic anxiety and was quite shocked with flashbacks of the transport accident.
[36]See exhibit 1 at page 30 JCB
64 Again, as already recorded, Dr Clifopoulos arranged for the plaintiff to undergo an MRI scan of her cervical spine and an ultrasound of her right shoulder on 25 July 2013.[37] Such findings are set out in paragraph 53(b) of these Reasons for Judgment.
[37]See exhibit 1 at page 87 JCB
65 Dr Clifopoulos records that the plaintiff was managed “expectantly” with referral to physiotherapy, analgesia, topical anti-inflammatories and a program of home exercises. Dr Clifopoulos certified the plaintiff to be unfit to return to work, which involved pipetting and general labour duties where she would use her right-dominant arm. He notes the plaintiff continued to complain of pain in her neck and shoulder, and stiffness and disability over the ensuing months, despite adequate return-to-work assessment with the Healthe Work Group.
66 Dr Clifopoulos also notes he arranged for referral to a neurologist,[38] Mr Patrick Chan, and a chronic pain management specialist, Dr Terence Lim, for pain management and a program of exercises, acupuncture and also referral to the North Eastern Rehabilitation Centre Pain Management Program. Dr Clifopoulos notes that such activities had limited impact on her prognosis and her return to work. Dr Clifopoulos also arranged for the plaintiff to undertake physiotherapy at the Plenty Road Physiotherapy Clinic and such physiotherapy involved gentle graduated cervical and shoulder mobilisation, stretches, Deep Heat, progressive home exercises and postural re-education.
[38]The material suggested Mr Chan was a neurosurgeon
67 During this time, the plaintiff became depressed and anxious and had manifested symptoms of “a Chronic Pain Syndrome with possible Post-Traumatic Stress Disorder”, so she was referred by Dr Clifopoulos to a psychologist, Mr Thomas Clifopoulos, for assessment and management.
68 At the time of Dr Clifopoulos’ first report, the plaintiff had been unable to return to gainful employment and continued to suffer significant chronic pain, anxiety and mobility, to perform most home duties (for example ironing).
69 In his second report, Dr Clifopoulos again noted that the plaintiff had had significant whiplash injuries to her cervical and thoracic spines. Furthermore, Dr Clifopoulos noted that the plaintiff had a Post-Traumatic Myofascial Pain Syndrome and Chronic Pain Syndrome, and had extensive follow up and treatment by him, her leading physiotherapist, Mr Nandu Giovannucci, her psychologist, Mr Thomas Clifopoulos, her orthopaedic specialist, Mr John Cunningham, and a variety of other medical professionals.
70 Furthermore, the plaintiff had had extensive WorkCover rehabilitation instigated, commenced by the Healthe Work Group in 2014 and 2015, and functional capacity assessments were performed and sent to Dr Clifopoulos. The plaintiff had made an attempt to return to light duties and rapidly failed, with increasing pain and disability, and this was combined with increasing post-traumatic anxiety and depression.
71 In particular, Dr Clifopoulos noted that “with time” the plaintiff began to deteriorate and develop a classical Pain Syndrome and she began to develop features of paranoid psychosis which has been managed at present by her treating psychiatrist, Professor Horgan. At that time, she was managed on antipsychotic therapy and antidepressants in the form of Seroquel and Zyban, but had had very little in the way of physiotherapy treatment. This includes home exercises, home help and assistance, as well as managed care by her husband and children.
72 In this report, Dr Clifopoulos considered that the transport accident aggravated pre-existing degeneration in the plaintiff’s cervical and thoracic spines and resolving into a Chronic Myofascial Pain Syndrome, which has been complicated by secondary anxiety and depression. Dr Clifopoulos considered that both physical and psychological issues prevented the plaintiff from performing gainful employment.
73 In his final report, Dr Clifopoulos again reported that he considered the plaintiff had suffered “significant post traumatic injuries” to her neck and right shoulder. Furthermore, he considered the plaintiff had suffered significant post-traumatic anxiety and depression, to the extent that it would constitute a Post-Traumatic Stress Disorder. At the time of that report, Dr Clifopoulos considered that the plaintiff was definitely incapacitated for her pre-employment, but maybe suitable for some light work not involving repetitive use of her shoulders and arms, or flexion of her neck.
The evidence of the psychologist, Mr Thomas Clifopoulos
74 The plaintiff relies on a report from Mr Thomas Clifopoulos dated 16 January 2015.[39] Mr Clifopoulos reports that the plaintiff was referred to him in 2013 by her general practitioner – Dr Chris Clifopoulos – for counselling following the motor vehicle accident in July 2013. The plaintiff gave a history of tension in her relationships with her mother-in-law and her husband. The couple have apparently attended marital counselling and the plaintiff added that her relationship with her family members and her friends has deteriorated considerably as a result of the physical pain and psychological condition following her transport accident.
[39]See exhibit 1 at page 61 JCB
75 In particular, Mr Clifopoulos noted that the plaintiff presented with sadness, pessimism, lowered self-esteem, irritability, physical pain in her neck and arms, loss of motivation, phobia, periods of low mood and exhaustion. He diagnosed her as suffering from a Major Depressive Disorder, recurrent and mild, and noted that she had vitamin D deficiency, gastroesophageal reflux disease, social isolation and relationship difficulties. As at the date of the report, the plaintiff had been attending for psychological counselling on a three-weekly to monthly basis, during which time the focus has been specifically on cognitive behavioural strategies, including relaxation skills and behavioural activation.
76 Mr Clifopoulos notes that while the plaintiff is not completely psychologically incapacitated, she struggles to communicate with those around her, frequently due to her level of irritability. Mr Clifopoulos was of the opinion that the plaintiff would struggle to psychologically cope with her pre-injury employment role as a research assistant, but may be able to return to lighter duties – her flare-ups of physical pain would likely to cause her psychological distress.
77 Ultimately, Mr Clifopoulos was of the view that the deterioration of the plaintiff’s psychological condition since 2013 has resulted from the transport accident.
The evidence of the physiotherapist, Mr Nando Giovannucci
78 The plaintiff relies on a report from the physiotherapist, Mr Nando Giovannucci dated 11 April 2015.[40] The plaintiff presented for physiotherapy treatment at the Thornbury Physiotherapy & Sports Medicine Centre (Mr Nando Giovannucci) and was later referred there by her general practitioner, Dr Clifopoulos, on 17 March 2015. The plaintiff gave a history that she suffered injury to her cervical spine and right shoulder joint due to a motor vehicle accident on 17 July 2013. She had attended her general practitioner and had been referred to physiotherapy management for her physical injuries and also for psychological counselling for Post-Traumatic Stress Disorder.
[40]See exhibit 1 at page 55 JCB
79 The plaintiff reported cervical spinal pain and stiffness which radiated to the right medial border of the scapulae. She also complained of right anterior shoulder pain which radiates into the anterior deltoid area. At that time, she also reported lumbar spinal pain radiating to her posterior, buttock and thigh.
80 At the time of his report, Mr Giovannucci had available various radiological studies of both the neck and shoulder (MRI scan of the cervical spine dated 25 July 2013; the ultrasound of the right shoulder dated 25 July 2013 and the MRI scan of the cervical spine dated 10 September 2014). Furthermore, Mr Giovannucci had available the CT scan of the lumbosacral spine dated 31 January 2014.[41] As already reported, such CT scan was reported as “[n]o abnormality is noted”. In particular, the radiologist reported that:
“The thecal sac appears normal as do all the emerging lumbar and sacral nerve roots.
There is no disc protrusion or central spinal canal stenosis.”[42]
[41]See exhibit 1 at page 83 JCB
[42]See exhibit 1 at page 83 JCB
81 Mr Giovannucci was of the opinion that the plaintiff had suffered injury to her cervical spine and right shoulder joint due to the transport accident on 17 July 2013. In particular, he was of the opinion that the plaintiff sustained a musculoligamentous, discogenic and neural strain affecting her cervical spine, with the exacerbation of pre-existing degenerative changes. Furthermore, she had sustained a musculoligamentous strain affecting the supraspinatus muscles and subacromial bursa (supraspinatus tendinosis and subacromial bursitis) and also injury to the lumbar spine of a musculoligamentous nature.[43]
[43]See exhibit 1 at page 59 JCB
82 Mr Giovannucci was of the opinion that the plaintiff was totally incapacitated for her pre-injury duties due to the above injuries sustained as a result of the transport accident on 17 July 2013.
The evidence of the neurosurgeon, Mr Patrick Chan
83 The plaintiff relies on reports from the neurosurgeon, Mr Patrick Chan, dated 18 February 2014,[44] 12 November 2014[45] and 19 January 2015.[46] The plaintiff was referred to Mr Chan by her treating general practitioner, Dr Clifopoulos. Mr Chan initially obtained a history of the plaintiff being the driver of a stationary car which was behind a taxi, when she was rear-ended by another car, causing her car to crash into the taxi in front. As a result of the collision, she suffered neck pain which subsequently progressed along her upper back to her mid back, and also there was associated right shoulder pain which radiated along her right upper limb. Although this was mainly in her right arm, it also intermittently extended into her right forearm to her thumb and index finger.
[44]See exhibit 1 at page 48 JCB
[45]See exhibit 2 at page 80 JCB
[46]See exhibit 1 at page 50 JCB
84 Examination revealed mild tenderness into her lower back and mild to moderate restriction of range of motion. Spurling’s test and Hoffman’s signs were negative. Upper limb neurological examination revealed a mild weakness of right triceps extension of C4-5. There was normal tone, reflexes and sensation. There were no long tract signs.
85 At that time, Mr Chan had available the MRI scan dated 25 July 2013,[47] which Mr Chan considered showed C4-5 disc and C5-6 disc desiccation, with right-sided C4-5 and C5-6 mild foraminal stenosis.
[47]See exhibit 1 at page 87 JCB
86 Mr Chan considered that the plaintiff had mechanical neck pain with left cervical brachialgia after the transport accident. It was considered it be appropriate she try, for a period, conservative measures with Dr Lim, the pain and rehabilitation physician.
87 The plaintiff was again referred to the neurosurgeon, Mr Chan, on 12 November 2014.[48] At that time, the plaintiff still had right neck, right shoulder, right half of her back and right gluteal to right groin pain. There was no neurological deficit and no history of brachialgia. Mr Chan had available the updated MRI scan of the cervical spine dated 9 September 2014,[49] which he considered showed C4-5 mild canal stenosis and C5-6 mild to moderate stenosis, with slight anterior indentation of the cord. There was no intramedullary signal change.
[48]See exhibit 1, report dated 19 January 2015 from Mr Chan at page 50 JCB
[49]See exhibit 1 at page 90 JCB
88 Mr Chan was of the opinion that the plaintiff had “mainly chronic diffuse axial neck and back pain”.[50] However, given her clinical presentation and radiological appearance, she did not require neurosurgical intervention and she was advised to continue on with her exercise to improve her core intrinsic and extrinsic muscles for her neck and back.
[50]See exhibit 1 at page 52 JCB
89 Mr Chan did not consider the plaintiff to be incapacitated for her pre-injury employment. In particular, Mr Chan stated that her symptoms onset was consistent with the transport accident, in that the underlying cervical spondylosis was mainly degenerative in nature and her symptoms appeared to be initiated after the transport accident and perpetuated with circumstances of her employment. In this respect, Mr Chan either obtained a wrong history or made a mistake in assuming the plaintiff had five days off work after the transport accident, but subsequently returned to work and was working at the time of his examinations. This is inconsistent with the history of the plaintiff, who only returned to work for a very short time and was unable to cope.
The evidence of the orthopaedic surgeon, Mr John Cunningham
90 The plaintiff relies on the reports from the orthopaedic surgeon, Mr John Cunningham, dated 16 June 2015 and 3 February 2016.[51] The plaintiff was referred by her general practitioner, Dr Clifopoulos, to Mr Cunningham, who examined the plaintiff on or about 16 June 2015.
[51]See exhibit 1 at pages 74-76 JCB
91 Mr Cunningham obtained a history that immediately following the transport accident, the plaintiff complained of neck pain. He also records that the plaintiff was complaining of coccygeal pain which radiates up the back to her neck, complaints of neck pain which radiates down to the thoracic region, complaints of pain in her right arm, with tingling in the thumb and index finger, and also pain around her right loin with an “acid” sensation in the stomach. Furthermore, the plaintiff complained of gait disturbance and also that her neck pain was worse with sitting, but such activity does not make her coccygeal pain worse. The plaintiff also complained of mild left-sided symptoms.
92 On examination, Mr Cunningham noted that the plaintiff walked with a slow but normal gait and had Grade V power of all groups of the upper and lower limbs and her reflexes were intact and symmetrical. She had no clonus and no signs of myelopathy.
93 Mr Cunningham noted that the plaintiff presented with imaging of her spine which, according to him, revealed some mild foraminal stenosis on the left at C4-5 and C5-6, and the right side, the side of her arm symptoms, was fairly normal.
94 In his report dated 3 February 2016, Mr Cunningham stated, in part:
“1. I believe that your client is suffering from pain which may or not may not have an organic cause. It is therefore impossible for me to provide a diagnosis.
2. Your client tells me that she is incapacitated for pre-injury employment. Without being able to establish a diagnosis for all of her complaints it is impossible for me to concur with that or not.
3. …
4. …
5. It is likely that your client will require a multi-disciplinary rehabilitation programme.
6. It would be unusual for an accident as reported to cause such widespread symptoms and complaints of pain over multiple different areas.”[52]
[52]See exhibit 1 at page 76 JCB
The evidence of the initial treating psychiatrist, Clinical Associate Professor David Horgan
95 The plaintiff relies on the reports of Clinical Associate Professor David Horgan dated 19 July 2016,[53] 25 October 2016, 13 December 2016 and 20 June 2017. The first of the documents relied on by the plaintiff is a letter from Professor Horgan to the Transport Accident Commission dated 19 July 2016. In that letter, Professor Horgan notes that he saw the plaintiff as an emergency consultation on 24 June 2016, when she presented as actively psychotic and extremely distressed by severe insomnia.
[53]See exhibit 1 at pages 72-73 JCB
96 The plaintiff had been discharged four days earlier from the Psychiatric Ward at St Vincent’s Hospital after an inpatient stay of six weeks, but was still very ill. At that time, she was on a Community Treatment Order and receiving depot injections for antipsychotic medication due to her reluctance to take oral medication voluntarily. Professor Horgan intervened in the form of prescribing another antipsychotic, Seroquel, and her psychiatric symptoms disappeared, presumably due to a combination of the depot agent and the Seroquel.
97 Following the subsidence of her psychotic symptoms, the plaintiff became very anxious and depressed which, according to Professor Horgan, was causing great difficulty as she had three children to care for, and he was “extremely concerned” that she wanted to “throw herself under a train”.
98 Professor Horgan does note that, at the time of the writing of the letter to the Transport Accident Commission, she was “much better” with the addition of the antidepressant, Allegron, in low dose.
99 Professor Horgan notes that the Transport Accident Commission requested information on the relationship between her symptoms and the transport accident.
100 Professor Horgan noted that the plaintiff and her husband informed him that the plaintiff had been in continuous pain and had had ongoing treatment from a psychologist and her general practitioner since the transport accident, that such was confirmation that she had some form of psychiatric illness.
101 Professor Horgan then stated:
“We therefore enter the area of precise diagnosis in psychiatry. One possibility, with the wisdom of hindsight, is that she had low level psychotic symptoms precipitated by the accident, manifesting themselves in her as some degree of anxiety and depression.
The other significant element is that Fotini reports marked increase in her pain for some weeks before the eruption of her overt psychotic symptoms, and psychosis is indeed a stress-induced phenomenon, with it being academically accepted that stressful events in the preceding three weeks are pivotal in the onset or relapse of psychotic illness.
Accordingly, based on the above paragraph, I do believe there is an association between her car accident, ongoing psychiatric symptoms since, exacerbation of pain and eventual precipitation of a further manifestation of psychiatric illness.”[54]
[54]See exhibit 1 at pages 35-36 JCB
102 In a report dated 25 October 2016 addressed the solicitors acting on behalf of the plaintiff, Professor Horgan refers to his letter dated 19 July 2016, in which he states:
“… summarises the clearly tenuous relationship between this lady’s car accident, the development of pain and the subsequent development of psychosis, followed by depression with suicidal ideas. … .”[55]
[55]See exhibit 1 at page 72 JCB
103 However, as Professor Horgan notes, the Transport Accident Commission had accepted liability for her ongoing psychiatric treatment. Professor Horgan describes that since that letter to the Transport Accident Commission, the plaintiff continued to have quite incapacitating depression for most of the time and spent a lot of time bedridden, barely able to function or in any way care for her children as before.
104 About a month prior to his letter dated 25 October 2016, the plaintiff was taken off her antidepressant medication, Cymbalta, due to lack of effectiveness, which caused some improvement in her symptoms for a two-week period and then there was a relapse in symptoms.
105 When seen on 25 October 2016, Professor Horgan describes the plaintiff as being depressed, nervous and agitated. She had lost her appetite, was tearful, was coping less well and lost her interest and motivation, and her concentration was impaired. Professor Horgan commenced the plaintiff with a new antidepressant called Brintellix, and he notes it will take some time to see whether such drug is effective. At that time, she continued on the antipsychotic, anti-anxiety and mood stabilising medication, Seroquel, and her psychotic symptoms were “at bay”.
106 In that letter dated 25 October 2016, Professor Horgan notes that the ease of relapse of her depressive illness is a “bad prognostic sign” and significantly increases statistically the risk that she will continue to have recurrent episodes of depression, requiring long-term antidepressants, with or without specialist care.
107 In his final report dated 20 June 2017 to the solicitors acting on behalf of the plaintiff, Professor Horgan notes that in January 2017, after a trial of about seven different antidepressant agents, the plaintiff described herself as “very well”.
108 Professor Horgan goes on to say in that report:
“However, matters have deteriorated considerably, with Fotini now describing a number of effectively impossible physical symptoms, together with disabling pain, a subjective symptom also.
For example, Fotini describes that if she simply rubs her hands through her hair, either during the day or when having a shower, both her hands go into spasm so that she is no longer able to close her hands. She puts this down to disturbance of nerve function. However, a minute or two later, the condition resolves itself. This happens repeatedly. There is no physical condition that does this.
Fotini goes on to describe a range of other physical symptoms and disabilities. For example, her most recent symptom is that she gets too weak to lift food to her mouth during a meal, requiring that her husband feeds her.
I believe the fundamental diagnosis now is that Fotini is developing hysterical conversion symptoms, i.e. a phenomenon whereby psychological distress is converted into unusual physical symptoms.
Unfortunately, I understand that Fotini is pursuing numerous therapies ranging from laser therapy to physiotherapy to neurosurgery opinions, determined to find a practitioner who can effectively diagnose and treat what she is convinced is a physical symptom. I am trying to get her to see the problem from a different perspective.
Fotini denies being anxious, depressed or having any psychotic symptoms, but she currently is receiving a range of psychiatric medications and weekly therapy from me. I am on the verge of referring her to a specialist in Conversion Disorder.
Meantime, I am advocating ignoring Fotini’s symptoms as much as possible, as intensive support for Fotini and her disabilities in such a scenario runs the risk of leaving her entrenched in abnormal illness behaviour.
Clearly her condition has not stabilised, she is unfit for work, and the prognosis is most unclear.”[56]
[56]See exhibit 1 at pages 38-39 JCB
The evidence of the psychiatrist, Professor Dennis Velakoulis
109 The plaintiff relies on reports from the psychiatrist, Professor Dennis Velakoulis, dated 15 November 2016[57] and 5 February 2018.[58]
[57]See exhibit 1 at page 40 JCB
[58]See exhibit 1 at page 43A JCB
110 The treating general practitioner, Dr Clifopoulos, referred the plaintiff to Professor Velakoulis, who consulted with her on 14 November 2016.
111 Professor Velakoulis obtained a history from the plaintiff, including her symptoms and difficulties since the transport accident and in particular, her symptoms leading up to her admission to St Vincent’s Hospital in late May 2016 where she remained for five or six weeks and was treated for a psychotic episode.
112 At the time of his consultation, the plaintiff described feeling very sad and unhappy and she cannot cry. She had trouble sleeping without Seroquel, had a very poor appetite and had lost 10 kilograms in weight. She had a lack of enjoyment and no libido, her concentration was poor and in July 2016, she had suicidal ideation. The plaintiff described herself as being “punished” but that she did not deserve this.
113 Professor Velakoulis noted there were no current psychotic symptoms evident.
114 Ultimately, Professor Velakoulis opined:
“The current presentation is consistent with that of major depression on the background of a more florid psychotic illness earlier this year. The best formulation for the current situation is that Fotini has had longstanding neck pain following the car accident which has led to frustration and depression. This has had a psychosocial impact on her relationship with her husband and particularly with her mother-in-law. In the context of this ongoing stress, she [had] a paranoid psychotic illness that has now been treated effectively. In the aftermath of this, however, she has developed a significant depressive syndrome … .”[59]
[59]See exhibit 1 at pages 42-43 JCB
115 Dr Clifopoulos referred the plaintiff back to Professor Velakoulis in early 2018.
116 Professor Velakoulis obtained a history that the plaintiff had been well until February 2017, when she developed another episode of neck and upper back pain. She was in severe pain on and off until August or September 2017, when she developed a psychosis, and the pain disappeared. At that time, the plaintiff became very spiritual, talked to her children about God and told them to learn the Ten Commandments. The plaintiff denied any other psychotic symptoms.
117 At that consultation, the husband of the plaintiff stated that the main issues were that the plaintiff had a “foggy brain, dizziness and lack of motivation”.[60] Her husband noted that the family had to push her into doing things and he was concerned that she seemed to be deteriorating, although acknowledging that her psychiatric symptoms had resolved.
[60]See exhibit 1 at page 43A JCB
118 At that time, Professor Velakoulis stated:
“My overall sense is that Fotini is presenting with a history of psychotic illness that has responded to antipsychotic medication Paliperidone. While on Paliperidone Fotini has developed extrapyramidal,[61] cognitive and affective symptoms possibly all related to Paliperidone including possible akathisia. In this context, a review of the medication is warranted. I have discussed with her the main reason she has been put on the Depo is likely that she has been non compliant with her medication.”[62]
[61]The dictionary describes such symptoms as being drug-induced movement disorders which include involuntary and uncontrollable movements, tremors and muscle contractions
[62]See exhibit 1 at pages 43A-43B JCB
The evidence of the neurologist, Ms Janaka Seneviratne
119 The neurologist, Ms Janaka Seneviratne, examined the plaintiff on 28 May 2017 at the request of her local general practitioner, Dr Clifopoulos.
120 Ms Seneviratne obtained a history of the transport accident on 17 July 2013 and noted that there was no loss of consciousness, that she may have had some whiplash injuries consequent to that accident. Dr Seneviratne also obtained a history that the plaintiff had been experiencing ongoing right arm pain and paresthesia since then. She had tried different treatment measures, including physiotherapy and pain relief, without much benefit. She had also attended a vascular surgeon for possible thoracic outlet syndrome but ultrasound studies of the blood vessels came back as normal and she was told that thoracic outlet syndrome was unlikely.
121 The plaintiff informed Dr Seneviratne that she had a history of depression before the transport accident and that her current symptom medications were Seroquel, Zyban and Valium.
122 On examination, the plaintiff appeared alert but quite anxious and did not seem to be in any significant discomfort or pain. Cranial nerve examination was normal.
The plaintiff did not take up the suggested treatment.
Dr Tan stated that there is unequivocal C4-5 and C5-6 disc pathology and this “could well be the pain generator but there is no investigations that would be able to confirm this” (bearing in mind this was undertaken by Professor Lyn Kiers);
(xiii) it is to be noted, of course, that the plaintiff attended the Epworth Hospital on 2 June 2017 (shortly prior to being referred to Dr Caroline Tan) complaining of neck, right shoulder and upper back pain, initially intermittent but had now been constant since December 2016. At that time, she gave the history she was lying on a bed doing extension exercises with her arms, and then got up and did her normal activities. One hour later, she noted gradual weakness of the right arm, then of the left arm, and at the time of presentation at the hospital, was “totally unable to move both arms”. The pain had initially improved when the arms became paralysed, but now has returned, but the plaintiff did not appear distressed about arm paralysis.
Examination at that time revealed that the plaintiff was initially unable to shrug her shoulders, but now can, and had no movement in any muscle group from shoulder to fingertips on examination, but was noted to move the left arm on being sat up, with sensation intact.
The plaintiff was admitted to the ward and it was explained that ulnar nerve problems do not explain such extensive bilateral paralysis. The plaintiff was later discharged from the hospital on 2 June 2017 at 10.41pm, there being no organic aetiology to cause her restrictions;
(xiv) During the period that the plaintiff was consulting with the neurosurgeon, Dr Caroline Tan, Dr Susanne Hoggarth also referred her to the neurologist, Mr Jack Wodak, who reviewed the plaintiff on 14 June 2017. At that time, the plaintiff complained of a four-year history of pain and weakness of both upper limbs, commencing after she suffered a whiplash injury in the transport accident. She also complained of pain in her neck, the shoulders and arms, and weakness of both limbs and found “even writing is difficult”.
The plaintiff had been seeing a psychiatrist weekly at that time but Dr Wodak was asked by the plaintiff not to write to him, and also she had been seeing a vascular surgeon, Mr William Campbell.
On examination, Dr Wodak found a non-organic weakness of the muscles of the hands, forearms and arms. The power in her shoulders seemed intact. Her performance in co-ordination was impaired in a non-organic fashion and she appeared to be “fighting her way through treacle”. All of the tendon reflexes were present and symmetrical. There were no sensory signs and the remainder of the neurological examination was normal. As Dr Wodak noted:
“Mrs Hatzis came expecting to have an EMG. She clearly has her heart set on one. I agreed to order an EMG though I told her I did not feel it would be productive. The reports of the MRI you provided me with show nothing that could account for her symptoms. There are certainly no features to suggest she has thoracic outlet syndrome (or any other neurological condition). Mrs Hatzis is strongly resistent [sic] to the idea that her symptoms are functional in nature. Nonetheless, I told her that that was my belief.”[163]
[163]See exhibit 1, report dated 15 June 2017, at page 257 JCB
Later that year, the plaintiff was admitted to St Vincent’s Hospital on 23 September 2017 to 20 October 2017, during which time she was experiencing significant psychotic symptoms, ultimately which was diagnosed to be Paranoid Schizophrenia;
(xv) The plaintiff was medico-legally examined by the orthopaedic surgeon, Mr Peter Moran, on 29 May 2019, at which time the plaintiff complained of ongoing persistent pain in her neck and also experiencing frequent “flare ups” which largely immobilise her. Movements of the neck were inhibited, although neurological examination of the upper limits were considered normal, in that her reflexes were symmetrical and there was no evidence of muscle wasting or specific weakness. Neurological examination of the lower limbs was considered normal. Mr Moran had various radiology available to him.
Mr Moran considered the essential diagnosis to be one of pain provoked by a violent trauma on a background of asymptomatic degenerative change in the neck.[164]
[164]See exhibit 1, report dated 25 July 2019, at pages 173-177 JCB
241 I now turn to the report (and subsequent letter) from the neurosurgeon, Mr Myron Rogers, who examined the plaintiff on 29 May 2019. In that report, and accompanying letter, Mr Rogers expresses the opinion that the plaintiff suffers from a “Chronic Pain Syndrome, without structural neural compressive pathology in the cervical spine”.[165] In the subsequent letter, he confirmed that the “Chronic Pain Syndrome” suffered by the plaintiff does not have an organic basis.
[165]See exhibit 1, report dated 29 May 2009 at page 244 JCB
242 I adopt the opinion of Mr Myron Rogers as it tends to reflect the evidence – although not all of it – that has emerged during the course of the plaintiff’s treatment. More particularly, I consider that his report is very “thorough”, in that Mr Rogers obtained clear histories of the accident, employment and in particular, the current symptoms suffered by the plaintiff. At the time of examination, there was said to be pain which radiates along the right side of the posterior aspect of her neck, across the top of the right shoulder girdle into the mid-portion of the right scapula, and also along the medial border of the scapula. The plaintiff also described a low-grade discomfort radiating down the posterior aspect of her right upper arm (triceps region) and told Mr Rogers that it had no impact on her quality of life. The plaintiff scored the base level of her neck and scapula symptoms at 5 to 6 out of 10. The plaintiff also told Mr Rogers that she had significant Depression and had been at home for the last nine months, spending a great deal of the day lying down, as she found this helps to control the pain.
243 The plaintiff informed Mr Rogers that her current treatment consists of attending a physiotherapist once a week, seeing her general practitioner once a month and her psychiatrist every two months. She is prescribed Paliperidone, an antipsychotic medication, and receives that monthly, and was not using any form of medication to control the pain, as she told Mr Rogers that those painkillers do not work and she developed side effects from them.
244 Mr Rogers obtained a social and personal history. He made an examination and found that on inspection of the neck, she had normal posture, there was mild restriction of neck movement in all directions, but there was no dysmetria. On palpation of the neck and her shoulder girdles and scapula, the plaintiff was tender over the right side of the neck extending over the region of the rhomboid muscles on the right and over the posterior aspect of the majority of the scapula. There was no associated muscle spasm.
245 On inspection of the low back, the plaintiff had retained lordosis, there was no tenderness, there was no muscle spasm and she had a full range of unrestricted movements.
246 On inspection of the upper limbs, there was no muscle wasting, there were no fasciculations, reflexes were all depressed, but present with reinforcement. Mr Rogers could not detect any weakness in the arms or hands and the plaintiff had a normal sensation to pin prick and light touch in the arms and hands.
247 In the lower limbs there were no fasciculations, there was no muscle wasting, the reflexes were all present, the plantars were downgoing, there was no clonus and there was no weakness in the legs or feet.
248 Mr Rogers had available the following radiology:
(a) MRI scan of the cervical spine undertaken on 25 July 2013;
(b) MRI scan of cervical spine undertaken on 19 September 2014;
(c) MRI scan of cervical and lumbar spine undertaken on 21 May 2015;
(d) MRI scan of the lumbar spine undertaken on 23 November 2016; and
(e) An MRI scan of the cervical spine dated 2 June 2017.
249 Mr Rogers opined that in relation to the cervical and lumbar spines, the transport accident did not result in any direct identifiable trauma to the cervical spine or lumbar spine; it may have aggravated in an aggravation of pre-existing mild degenerative change. However, the pain she currently complains of in the neck and right shoulder does not conform to a dermatomal distribution. He noted that the plaintiff had undergone an electromyography and nerve conductions that were performed on 22 June 2017 and which were entirely normal.
250 Mr Rogers was of the opinion the plaintiff had significant psychiatric and psychosocial issues which are comprehensively documented in the notes and she has Depression, together with a Psychotic Syndrome, and these conditions will impact on her current presentation.
251 Mr Rogers also commented that in relation to the cervical and lumbar spine, aside from mild degenerative changes which are age-related (in both regions) there is no significant restriction in her range of movement; that is, she has no dysmetria, there is also no clinical evidence of radiculopathy (clinically or electrically).
252 The opinion of Mr Rogers was given about three to four months prior to the hearing of this matter. Of course, such an opinion is also consistent with the opinion of the neurologist, Dr Jack Wodak, who consulted with the plaintiff on 14 June 2017.
253 I also briefly want to refer to the medico-legal psychiatrists involved in this matter. I have already referred to two treating psychiatrists – Professor Horgan and Professor Velakoulis.
254 Associate Professor David Horgan, who had treated the plaintiff prior to the transport accident in respect of two bouts of Depression, but more particularly, treated her after her discharge from hospital in June 2016 after experiencing a psychotic episode. It was during this period that Professor Horgan came to the view that the plaintiff experienced a very significant post-psychotic Depression and that the fundamental diagnosis was that she was developing hysterical conversion symptoms; that is, a phenomenon where psychological distress is converted into unusual physical symptoms.
255 The other treating psychiatrist to which reference has been made was Professor Dennis Velakoulis, who commenced treating the plaintiff in October 2017. He was of the opinion that the plaintiff suffered from Major Depression on the background of more florid psychiatric illness earlier that year, in 2016. Professor Velakoulis obtained a history that the plaintiff had had longstanding neck pain from the transport accident but, of course, makes no comment as to the aetiology of such pain. He also notes there was an ongoing psychosocial impact on her relationship with her husband and particularly her mother-in-law.
256 In relation to the medico-legal psychiatrists, I initially refer to the report of Associate Professor Nick Paoletti dated 9 April 2015.[166] Professor Paoletti consulted with the plaintiff on 9 April 2015 (prior to her admission for any psychotic illness). In his report, Professor Paoletti assumed that the plaintiff had suffered injury to her right shoulder and cervical spine and ultimately diagnosed her to be suffering from an Unspecified Anxiety Disorder with traffic anxiety/phobia and some features of Post-Traumatic Stress Disorder, Chronic Adjustment Disorder with Depressed Mood and relationship distress with spouse or intimate partner.
[166]See exhibit 1 at pages 115-126 JCB
257 Dr David Weissman, psychiatrist, consulted with the plaintiff initially on 13 June 2017 and later, on 5 June 2019.[167] Such consultations were on behalf of the solicitors acting for the plaintiff.
[167]See exhibit 1, reports of Dr Weissman dated 13 June 2017 and 5 June 2019 at pages 136-172 JCB
258 Associate Professor Peter Doherty consulted with the plaintiff on 23 November 2017 and on 31 July 2019.[168]
[168]See exhibit 1, reports dated 15 January 2018 and 4 August 2019, together with supplementary letters dated 15 January 2018 and 4 August 2019 at pages 201-240 JCB
259 When Dr Weissman initially examined the plaintiff it was after her first bout of psychotic illness and at the time she gave a history that her physical pain, “over time” had been “getting worse”. In particular, she had pain in her neck, her headaches had resolved, she had pain in both shoulders and both shoulder girdles, as well as pain in both upper limbs, together with pain and weakness in both forearms and weakness in her hands. She had experienced “electrical zaps” in the second, fourth and fifth digits of the right hand and fourth digit of her left hand, and also experienced ringing in both ears. At that time, she was not experiencing any low-back pain.
260 Dr Weissman noted at the time of that consultation, the plaintiff presented with a “not-insignificant amount of pain – and symptoms focussed and preoccupation, as well as elevated health concerns”. Ultimately, his diagnosis was that the plaintiff was suffering from –
“… at least a moderate, Chronic Major Depressive Disorder, with anxiety consequential to the subject transport accident.
On the balance of probabilities, she is also suffering from symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition (DSM-IV), also known as a Somatic Symptom Disorder (DSM-V).
… .”[169]
[169]See exhibit 1, report of Dr Weissman dated 13 June 2017 at page 149 JCB
261 When later reviewed on 5 June 2019, the plaintiff corrected the history read back to her by Dr Weissman from the first occasion and maintained that there had been no pain in her left upper limb at that time. However, the plaintiff did inform Dr Weissman that as of eight weeks ago, her pain had “come back again”.
262 Also, the plaintiff informed Dr Weissman that she had a relapse of psychosis in September to October 2017.
263 After that consultation, Dr Weissman considered the diagnosis at that time to be:
“1. chronic paranoid schizophrenia - no acute active psychotic symptoms or features, so called chronic ‘negative or defect’ state impacting motivation, drive, volition and cognition - unrelated to the subject transport accident;
2. aggravation or recurrence of previously remitted chronic Major Depressive Disorder with anxious distress of mild to moderate intensity or severity overall - half transport accident-related in a secondary, reactive or consequential manner, half in the context of her (unrelated) chronic paranoid schizophrenia diagnosis/ condition;
3. some possible symptoms and features of a Somatic Symptom Disorder with persistent pain - if so, only part transport accident-related and part due to the ‘stress’ of her schizophrenia;
4. no PTSD.”[170]
[emphasis in original.]
[170]See exhibit 1, report of Dr Weissman dated 5 June 2019 at page 170 JCB
264 When Professor Peter Doherty initially examined the plaintiff on 23 November 2017 she also gave a history, amongst other things, of her inpatient treatment for her psychotic condition in 2016.
265 At that time, Professor Doherty considered that the appropriate diagnosis was that in 2016, the plaintiff became psychotic and –
“… developed a fulminating psychotic condition requiring involuntary care under the Mental Health Act. She is currently on a community treatment order under the Mental Health Act and has compulsory care provided to Hawthorn CMHS. … The appropriate diagnosis of the psychotic condition is that of schizophrenia, treated with antipsychotic medication. That antipsychotic medication given in depot injectable form causes significant side effects and contributes significantly to the plaintiff's lack of energy, lack of motivation, restlessness of muscles, and restriction in emotional response. The plaintiff also comments about brain fog, which may also be a side effect of the depot injectable medication. The psychotic symptoms typical of schizophrenia are under control and she is in remission from the acute features of psychosis.”[171]
[171]See exhibit 1, report of Professor Doherty dated 15 January 2018 at page 208 JCB
266 Professor Doherty also noted that from the records, the general practitioner had treated the plaintiff from February 2013 with the antidepressant medication, Escitalopram. Professor Doherty considered it unclear from the history obtained from the plaintiff or review of the general practitioner’s clinical notes, that there were significant mood-related symptoms of anxiety and depression in 2013 and 2014. He notes the predominant symptom is one of pain and functional limitations which is complex and stressed the plaintiff. He also notes that there is the potential that there could have been diagnosed at that time a pain-related psychiatric condition now titled “Somatic Symptom Disorder with predominant pain …”. However, Professor Doherty noted there was not much confirmation from the history obtained or his review of the clinical notes.
267 When later seen by Professor Doherty on 31 July 2019, at that time, the plaintiff informed Professor Doherty that since September 2018, she attends the psychiatrist, Dr Arthur Kokkinias. The plaintiff told Professor Doherty that she commenced seeing Dr Kokkinias because she was suicidal and there had been a flareup of pain and she had been referred earlier to the psychiatrist, Professor Velakoulis, who in turn referred her to Dr Kokkinias.
268 The plaintiff also gave a history of a second bout of psychosis requiring hospitalisation in late 2017.
269 At the time of the second consultation, Professor Doherty was of the opinion that the plaintiff was suffering from Schizophrenia of the paranoid type. He noted that she had had two acute episodes of psychosis and, following the first, a significant downturn in mood and a clinical presentation of post-psychotic Depression after the first episode, and maybe after the second episode. After the second episode of psychosis, there had been a significant problem with motivation and energy, compounded by side effects of the Depot antipsychotic medication used. He noted that she is now treated only for Schizophrenia and the medication used is antipsychotic medication only. She does not take pain-relieving medication or medication to improve her mood.
270 Again, Professor Doherty noted that the plaintiff gave a history of being bedridden for some weeks recently due to excruciating pain and that the treatment given to her was an increase in antipsychotic medication, not analgesic medication. Although he noted it is difficult to be certain now, the sudden increase of excruciating pain causing her to be bedridden may be reflective of Depression or the psychosis rather than a flareup of physically-caused pain. Ultimately, he said there is no other appropriate psychiatric diagnosis that can possibly be made now, although there could be debate whether or not there is a schizoaffective condition, which is Schizophrenia and an Affective Disorder interwoven together. Professor Doherty thought this was not the case, as her delusions, which are grandiose and religious, are features typical of a paranoid Schizophrenia.
271 Both Dr Weissman and Professor Doherty were of the opinion that the transport accident had no relationship to the development of the plaintiff’s paranoid Schizophrenia – that is, it was a standalone condition.
272 As noted, Dr Kokkinias has been the treating psychiatrist of the plaintiff for some period of time. During the course of the serious injury application, no evidence was called from him or explanation as to why he was not called to give evidence. Those acting for the defendant seek that an inference be drawn in respect of a failure to call such evidence pursuant to the principles of the well-known case of Jones v Dunkel.[172] I accept such submission.
[172](1959) 101 CLR 298
273 As it has been pointed out frequently in this case, it is for the plaintiff to discharge her onus to prove, on the balance of probabilities, that she suffered an organic injury as a result of the transport accident which has given rise to an organic impairment with consequences to satisfy the narrative test. After a consideration of all of the evidence – and appreciating that there is some evidence to suggest that she has organically-mediated neck symptoms – I consider that the preponderance of evidence is that if the plaintiff does suffer any pain or restriction in her neck movements (although these are variable – see report of Mr Haw), such are mediated by psychological mechanisms rather than any organic basis.
274 I am not satisfied that the plaintiff has discharged her onus.
275 The application must be dismissed.
276 I will hear the parties of the question of costs.
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