Hebaiter v Transport Accident Commission
[2017] VCC 1381
•27 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04626
| Sally Hebaiter | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28-29 August 2017 | |
DATE OF JUDGMENT: | 27 September 2017 | |
CASE MAY BE CITED AS: | Hebaiter v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1381 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Katanas v Transport Accident Commission [2016] VSCA 140
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr J Valiotis | Slater & Gordon |
| For the Defendant | Mr J Gorton QC with Ms J Frederico | Transport Accident Commission |
HER HONOUR:
1 Mrs Hebaiter applies under s 93(17) of the Transport Accident Act 1986 (Vic) (“the Act”) for leave to issue proceedings for the recovery of damages in respect of a serious long-term impairment or loss of body function of the spine as well as a severe long-term mental or severe long-term behavioural disturbance or disorder resulting from a transport accident which occurred on 24 February 2015. She was driving through an intersection in Lalor when a taxi struck the rear passenger side of her car, forcing her car to spin, travel through a fence, and collide with a tree. She had to get out the passenger side of the vehicle. She suffered shock and neck and back pain. She says that her neck and back pain is constant, interferes with her sleep, and causes her to limit her social and domestic activities. She takes 6 Panadol tablets per day and Panadeine Forte “every second night or every third night” for the pain. [1] As a result of the collision, she has suffered an aggravation of her pre-existing depression, developed a Post-Traumatic Stress Disorder and now takes 225 mg per day of the antidepressant Effexor. Her anxiety and hypervigilance prevent her from travelling at all by car at night and from driving her grandchildren to and from school as she used to. She suffers nightmares and flashbacks of the accident.
[1] Transcript of Proceedings, Hebaiter v Transport Accident Commission (County Court of Victoria, CI-16-04626, Judge Davis, 28 August 2017) (‘Transcript of Proceedings’), 53
2 The defendant says that Mrs Hebaiter is not a reliable witness as to the extent of her pre-accident psychological and physical problems and as to the extent of the change in her conditions after the transport accident and that her application should be dismissed. In relation to the alleged accident-related impairment to the spine, the defendant says that the plaintiff suffered from widespread body pain before the transport accident, for which she was being prescribed Panadeine Forte, that she suffered only minor physical injury, if any, as a result of the transport accident, and that upon completing a pain management program after the transport accident, she was managing her pain well and was expected to continue improving. For this reason, the defendant says that the plaintiff has not established a transport accident-related long-term impairment of the spine which meets the narrative test. In relation to the alleged psychiatric injury, the defendant says that she had an extensive pre-accident psychiatric history requiring treatment with anti-depressants, that the fact of a change to a higher dose of antidepressants has little probative value given that it was prescribed by a psychiatrist who had not seen Mrs Hebaiter before the transport accident, and that the major consequences complained of, namely increased anxiety driving, particularly at night, are not more than serious, to the point of being severe as required by the Act.
Sub-paragraph (c) – long term mental or behavioural disturbance or disorder
Pre-accident medical and psychiatric history
3 Mrs Hebaiter[2] was born in Belize and lived in Lebanon for 10 years. She was educated to the age of 14, and married in Lebanon at the age of 16. She migrated to Australia in 1972. She has never worked but has stayed at home to care for her children, now aged 41, 39 and 31 years old, respectively. She has 4 young grandchildren.
[2] Plaintiff’s Court Book (PCB) 7-12,18-24
4 She had malignant breast cancer in 2002, for which she underwent a total left mastectomy and reconstructive surgery. That cancer is in remission and, as at 2015, no further malignancy had been detected. She suffers from hypertension and asthma. She has had osteoarthritis in her thumbs and feet for which she has received medical treatment.
5 There was little in her affidavits concerning her prior psychiatric history, apart from the statement that she had “suffered from some psychological consequences as a result of that cancer and the ensuring treatment and received psychological counselling and continued to attend a counsellor at the time of the subject transport accident”.[3] However, in cross-examination, the plaintiff repeatedly denied a past history of being anxious, depressed, being unhappy with her husband, struggling with her son’s issues, having nightmares and panic attacks, or receiving psychological treatment from Ms O’Keefe prior to the transport accident. She also denied or contradicted many of the matters noted by her general practitioner and treating psychiatrist, Dr Prasanna. Prior to re-examination, the plaintiff’s counsel indicated that they did not challenge the accuracy of the clinical notes of Ms O’Keefe or Dr Prasanna.
[3] PCB 8, para 6
6 The plaintiff stated that prior to the transport accident she used to drive everywhere, to parties and to pick up her grandchildren.[4] She said that she used to go out for coffee all the time. She used to walk and drive her grandchildren to school and loved doing this. She used to attend family and social events including weddings. Her grandchildren were her “life”.[5]
[4] Transcript of Proceedings, 28 August 2017, 25
[5] Transcript of Proceedings, 29 August 2017, 71
7 In re-examination, the plaintiff said that, to her mind, “depression” means being very unhappy, having nothing to live for, and wanting to take your own life, and that she had never been like that. She understood “anxiety” to mean “when you get scared…you feel shaky…” and “panic attack” to mean “can’t breathe…you think you’re going to have a heart attack”.[6] She said that she had been prescribed Effexor 18 years ago “to make me feel good” and was taking 75 mg per day at the time of the transport accident. She insisted that the counselling she had with Ms O’Keefe prior to the transport accident was to discuss “family issues – life, how I’m dealing with my son…” who, at the time, “used to drink and he used to smoke marijuana”.[7]
[6] Ibid, 69
[7] Ibid, 67
8 In re-examination, the plaintiff said that prior to the transport accident she had no trouble driving at night, or long distances, or driving her grandchildren to and from school, attending social functions and driving to Northland shopping centre.
9 I have perused Dr Tegelan’s clinical notes between late April 2007 and late January 2017[8] tendered by the defendant’s counsel, and the medical reports tendered, and summarise the pre-transport accident clinical picture, as best I can, as follows. In terms of anti-depressant medication prescribed from April 2007, there are repeated prescriptions of Effexor, most commonly 75 mg tablets. However, between December 2009 and August 2010, the dose prescribed was 150 mg daily. At times, such as in early December 2012, there were attempts to taper the dose, and prescriptions for 37.5 mg tablets were dispensed, but by March 2013, the 75 mg dose was restored.
[8] Exhibit 1 - Mill Park SuperClinic notes
10 A number of pre-accident entries by Dr Tegelan indicate consultations concerning “depression”, “anxiety” or “panic attacks” (14 February 2015, 6 November 2014, 9 May 2013, 21 April 2012, 15 April 2011, and November 2007). The entry of 9 May 2013 noted: “depressed, anxious, issues with son, stressed about family, has an apt with counsellor”. On 6 November 2014, the entry noted: “depressing, seeing a psychologist, needs additional sessions, mood ok, no risk of harm”.
11 Letters from Kathy O’Keefe, treating psychologist, to Dr Tegelan, in mid and late 2012[9], noted that the plaintiff had engaged well with counselling to address the “precipitating and maintaining factors relating to Sally’s experience of anxiety and depression including early family dynamics but particularly her current family difficulties with her son who has complex psychological issues including alcohol abuse and depression”. On 20 December 2012, Ms O’Keefe noted that the plaintiff had completed her counselling and had reported an improvement in her overall functioning and coping capacities.
[9] PCB 32A, 32B
12 The Mental Health (Psychology) Treatment Plan prepared by Ms O’Keefe on 10 December 2015[10] noted that she had been treating the plaintiff between May 2012 and April 2015 for “Mild Depression”.
[10] PCB 32G
13 The clinical notes of Ms O’Keefe on 6 June 2013[11] include the following entry:
Assessment & Formulation Summary
Low mood/anxiety in the context of complex family issues
Family of origin/childhood issues.
[11] PCB 32C
14 The notes of 6 September 2013[12] state, among other things:
Assessment & Formulation Summary
Client struggles with some low mood & anxiety in the context of family issues & health problems. Other issues include dealing with adult son who has alcohol + mental health problems.
[12] Defendant’s Court Book (DCB) 301
15 A similar entry on 20 February 2014[13] notes:
Presented with depressed mood & anxiety symptoms due to several factors – current family dynamics especially dealing with son who has complex psychological + physical issues.
Client has good insight + is motivated to improve but finds herself “stuck” in old patterns of thinking.
[13] DCB 306
16 A further entry on 10 September 2014[14] notes:
Client still dealing with low mood/anxiety. Client also currently dealing with chronic arthritic pain. Family issues continue to be problematic + a source of stress.
[14] DCB 318
17 A further entry on 23 December 2014[15] notes:
Client has been dealing with longstanding family difficulties both from her own childhood and now current issues. She struggles to stay positive + motivated living amid these negative influences. Stress + extreme fatigue are issues.
[15] DCB 320
18 I turn briefly to the pre-accident psychological history given to various medico-legal practitioners. In his two reports dated 9 March 2016[16] and 6 February 2017[17] Dr Nathan Serry, psychiatrist, noted a past history of mental health issues as follows:
About 20 years ago, she said that her husband returned to Lebanon to visit his family, leaving her with three children. She said that she was struggling to cope and started to experience panic attacks whenever she would go out and depression. She saw her GP who prescribed Efexor and your client has essentially been on this medication ever since although the dose has tended to fluctuate.
In the period before the accident, your client was also struggling to an extent psychologically. She said that this relates to her 31 year-old son who is at home…He has had longstanding difficulties with both alcohol and drugs. He stopped using drugs four years ago and alcohol two years ago…there are ongoing behavioural difficulties and for this reason, your client commenced seeing her psychologist about a year ago. She has continued to attend every week or two. She is continuing now to see the psychologist every two weeks post accident and remains on the antidepressant Efexor XR.
[16] PCB 84 at 88
[17] PCB 87
19 Mr Russell Miller, orthopaedic surgeon, recorded on 7 March 2016[18] that he received a past history from the plaintiff of “…depression which she stated has become worse since the accident”.
[18] PCB 70
20 Doctor Prasanna, the plaintiff’s treating psychiatrist, provided a medico-legal report dated 29 April 2017[19] which focused on responding to specific questions raised in a request made by the plaintiff’s solicitors and contained a brief past history in the following terms:
Sally reported having been on Venlafaxine XR for past 18 yrs, for anxiety. She stated that she developed anxiety when her husband travelled overseas for a few weeks leaving her and her kids behind. This was on background of longstanding marital conflict. Venlafaxine XR was prescribed by her then GP and she stated that she had never seen any psychiatrist or psychologist in past. She stated that Venlafaxine XR helped her to cope adequately when she underwent treatment for breast cancer 15 yrs ago.[20]
[19] PCB 47
[20] PCB 49
21 Dr Prasanna recorded the following psychosocial history:
Sally reported…she got married at age of 16 and had 3 kids. She has found her husband very controlling and abusive…She has never undertaken paid work at any time until now, and had always stayed home as a housewife and mother, caring for her family. She reported that she had been socializing adequately, and has been leading a calm & peaceful life. She denied any prev. D&A abuse issues.[21]
[21] PCB 49
22 Dr Brendan Hayman, psychiatrist, provided a medico-legal report dated 9 March 2017[22] in which he noted that the plaintiff “denied any past psychiatric history” but, when prompted (after he noticed the enclosures referring to past depression and use of Effexor), “she acknowledged such, but tended to minimise this”. She told him that, in 2000, she “couldn’t handle life”, was raising three children, and was having trouble dealing with her son who had alcohol and substance abuse issues. She had counselling with Ms O’Keefe fortnightly, and was taking Effexor at the time of the accident. He noted that “she feels at the time of the accident, she had no psychological issues”.[23]
[22] DCB 16
[23] DCB 17
23 As to her pre-accident lifestyle, Dr Hayman noted that she told him she was very social, enjoyed going to weddings and out with her husband at night, went out with friends for a coffee, and went to Northland and Preston for longer shopping periods. She was very house proud. Her son had been living with them for 11 years, mainly due to his alcohol and substance issues. He had recently been diagnosed with Multiple Sclerosis but did not need physical assistance.
24 The weight of the evidence is to the effect - and I therefore find - that, as at the date of the transport accident, the plaintiff suffered from mild depression for which she was being treated with psychological counselling from Ms O’Keefe on a fortnightly basis as well as taking 75 mgs daily of the anti-depressant Effexor.
Post-transport-accident psychological condition
25 In her first affidavit at paragraph 14[24], the plaintiff stated that she continues to suffer flashbacks, nightmares and recurrent thoughts of the accident. She is nervous when travelling by car and no longer drives her grandchildren at all. She limits herself to local driving during the day. She has nightmares and finds that the “bang of the accident” never quite leaves her head.[25] Her sleep is disturbed and she has become irritable and short-tempered. Her libido, self-confidence, memory and concentration have diminished.
[24] PCB 11
[25] PCB 12
26 In her second affidavit[26], the plaintiff repeated these assertions, noting, in addition, that her social life has been severely inhibited and that her anxiety outside the home makes her stay at home more. She stated that in spite of the increase in the dosage of Effexor made by Dr Prasanna after the transport accident, she continued to have “frequent panic attacks and high levels of anxiety”. She repeated these matters in her third affidavit.
[26] PCB 19
27 The plaintiff’s husband, Joseph Hebaiter, and daughter, Denise Hebaiter, swore affidavits in largely similar terms.[27]
[27] PCB 13, 15
28 In cross-examination, the plaintiff said that she no longer goes out after 6 pm by car,[28] whether as driver or as passenger[29] and therefore no longer attends family events at night. She will not drive her grandchildren around at all. She does not socialise as much with her friends during the day.
[28] Transcript of Proceedings, 63
[29] Ibid at 65
29 On 7 August 2016, the plaintiff’s treating general practitioner, Dr Kristine Tegelan, reported[30] that on several occasions the plaintiff complained to her of “recurrent distressing recollections of the accident, avoidance symptoms with fear of driving, difficulty concentrating and diminished interest in activities she would normally enjoy. She also admits to being alert all the time and unable to relax”. Dr Tegelan noted that prior to the transport accident the plaintiff was seeing Ms O’Keefe for counselling in relation to her pre-existing depression and anxiety. Dr Tegelan diagnosed PTSD arising from the transport accident and noted that the average duration of the condition for a person receiving treatment is about 3 years. Dr Tegelan expected that the plaintiff would recover within a year or two but noted that the presence of other psychiatric disorders like depression and generalised anxiety disorder, “such as in Mrs Hebaiter’s case”[31] can impact one’s recovery. She recommended regular and continuous psychological treatment for the plaintiff and stated that she would refer her to a specialist “if there is an inadequate response”.[32]
[30] PCB 55
[31] PCB 55
[32] PCB 55
30 On 19 May 2017, Dr Tegelan reported[33] that the plaintiff’s PTSD was in remission because, although “she still feels anxious when riding in a car either as a driver or passenger, she states that her symptoms have improved because of her medication”. She noted that the plaintiff could suffer a relapse of her PTSD. She considered that the pain disorder and PTSD would require regular psychotherapy and long-term use of anti-depressant medication.
[33] PCB 56
31 In his report dated 9 March 2017[34], Dr Hayman noted the plaintiff’s complaints after the transport accident as follows. She had 3 nightmares in total ever since the accident, the last of which occurred more than three months before he saw Mrs Hebaiter. Dr Hayman noted the plaintiff still experienced anxiety about driving, but returned to driving four days later, although she would only drive locally, during the day, and continued to feel anxious. She had difficulty understanding the concept of flashbacks, and he was uncertain whether she had them or simply had intrusive thoughts. She startles easily, and described some elevated heart rate, “but not clear panic attack symptomatology”.[35] However he noted that she does drive past the accident scene on a daily basis. Her anxiety driving, even as a passenger, affects her life in that she goes out less, particularly at night. Her libido was reduced. Her son’s alcohol and substance issues continue to be of concern. She was seeing Kathy O’Keefe, who recommended that she see a psychiatrist. She had seen Dr Prasanna twice, and he increased her Effexor dose to 225 mgs which “has been helpful”.[36] There was no impairment in concentration, and she reported being able to watch television, read and go on the computer.
[34] DCB 16
[35] DCB 18
[36] DCB 18
32 Dr Hayman considered that the plaintiff’s condition did not meet the criteria for PTSD and diagnosed a Chronic Adjustment Disorder with depressed and anxious mood “on a background of her prior depressive and anxiety condition”.[37] He felt that her pre-existing “depressive symptomatology has been exacerbated in the setting of her physical state. Its course relates, in some ways, to the prognosis in her physical state. The anxiety and traumatisation symptoms have occurred consequent to the motor vehicle accident. She has returned to driving but in a circumscribed way”.[38]
[37] DCB 21
[38] DCB 22
33 Dr Serry opined on 9 March 2016[39], in the context of an impairment assessment, that as a result of the transport accident the plaintiff suffered an “exacerbation of a pre-existing persistent depressive disorder with anxious distress and the development of a separate PTSD”.[40] The plaintiff complained to him of a number of symptoms following the transport accident: feeling depressed much of the time; frustrated by her restrictions; reduced concentration and memory; loss of appetite; feeling jumpy; thinking of the car accident daily; no accident-related dreams “but flashbacks occur very frequently”; driving was “terrible” and she felt nervous, hypervigilant and “too anxious” when driving.[41] He noted that her mobility had been partly compromised by her high levels of anxiety in relation to car travel, even as a passenger. The plaintiff told Dr Serry she drives to go shopping and to collect the grandchildren but tends to pray when on the road. Her social and leisure activities have been affected.
[39] PCB 84
[40] PCB 89
[41] PCB 87
34 Dr Serry saw the plaintiff a second time and reported, on 6 February 2017[42], that she had not experienced any recurrence of panic attacks, but that she continued to complain of frequent flash backs, “accident-related dreams” and hyper vigilance and anxiety whilst driving, low energy levels, deterioration in her concentration and memory and low mood “most of the time”.[43]
[42] PCB 94
[43] PCB 97
35 He noted that her premorbid “vulnerability has been substantially exacerbated by the physical and psychiatric injuries sustained in the subject accident” and concluded that the appropriate diagnosis now was that of “major depression with anxious features as well as a separate PTSD”.[44] He considered that she required ongoing psychiatric treatment, might require additional antidepressant medication and supplementary medication to alleviate her anxiety. He felt that her prognosis was “somewhat guarded given the premorbid vulnerability, the exacerbating impact of the physical and psychiatric injuries sustained in the accident and what appears to be a nexus between the physical and psychiatric aspects of her presentation”.[45]
[44] PCB 100
[45] PCB 100
36 The plaintiff’s treating psychiatrist, Dr Prasanna, who has seen the plaintiff on 4 occasions since 25 November 2016, reported on 29 April 2017[46] receiving complaints from the plaintiff of a number of symptoms since the transport accident: she was highly anxious and angry; she was becoming distressed at hearing loud sounds; she was less active; she was getting no enjoyment out of any of her activities; she was anxious when driving, particularly when driving through the accident site; she frequently experienced panic attacks triggered by loud noises and car travel when out; she was anxious when in public places; she had been reliving the accident and her sleep was disturbed.
[46] PCB 48
37 When he reviewed her on 6 January 2017[47], she was taking 225 mg of Venlafaxine (Effexor) as advised, and reported noticing some improvement in that she was driving more often, and to more places, with less anxiety and that she denied having any panic attacks. He noted:
…(After some exploration during the session, it became evident that Sally was underreporting her progress and in reality, she had been engaging in driving activities far more what she was reporting). She also reported that she often imagined a car driving on to her, or to her home.
At home, Sally stated that she felt safe although she still experienced intermittent anxiety hearing loud noises. She also acknowledged considerable avoidance behaviours (avoiding any situation that makes her anxious). Sally stated that she had been stressing about her 32yo unemployed son, with anger outbursts, who had been staying at home. She stated that engagement with him, and worries about him often contributed to her stress, anger and frustration.
Sally also reported some sleep disturbance but on exploration she stated she wakes up for a few mins twice during the latter half of her sleep cycle, which appeared to be normal/expected for her age.[48]
[47] PCB 49
[48] PCB 49
38 When Dr Prasanna reviewed the plaintiff on 17 February 2017[49] (only 11 days after her second consultation with Dr Serry), he noted that she reported that she continued to drive locally without any problems, but continued to avoid driving at night or long distances. Occasionally while driving, she would imagine being hit by a truck or car and that made her too anxious. He noted the plaintiff “denied any persistent recollections or reliving or nightmares related to the accident she had suffered. She also denied any other features of PTSD like hypervigilance and numbness. She denied having had any further panic attacks”.[50] She told him that her main issue was persistent pain in the neck, back and head.
[49] PCB 49
[50] PCB 50
39 On 19 April 2017, when Dr Prasanna reviewed the plaintiff[51], she denied any further improvement since the previous consultation, and told him she continued to feel anxious when driving, even more so if she was a passenger. She reported limited symptom panic attacks, as well as frequently remembering the accident and feeling anxious. She was still driving locally and had driven at night for the first time since the accident, and coped with this despite her anxiety. She had been socialising adequately with close family and friends. She was keen to reduce the dose of anti-depressants because of her cholesterol levels, but after discussion agreed to stay on the current dose.
[51] PCB 50
40 Dr Prasanna diagnosed the plaintiff as suffering from one of the following conditions: “PTSD with secondary depression in partial remission”, “Panic Disorder with Agoraphobia in partial remission” or “Somatic Symptom Disorder with predominant pain (DSMV)”.[52] He considered that her prognosis was guarded and recommended treatment from a clinical psychologist, a pain management program, and regular reviews every two months with a psychiatrist, along with ongoing antidepressant medication.
Findings and reasons
[52] PCB 51
41 Mrs Hebaiter was cross-examined at length. She is an unsophisticated woman, with little education, who was married at 16 and has spent her adult life raising her children. She has her own ideas about what “depression” and “anxiety” and “panic attacks” mean. I accept that, as she understands these things, she was faring reasonably well in psychological terms prior to the transport accident. However, I prefer the expert opinion that, prior to the transport accident, she was suffering mild depression and anxiety which was being managed with a low dose of anti-depressants and psychological counselling. I accept that she genuinely believes that the transport accident has seriously affected her mental state and her quality of life.
42 In the light of the expert psychiatric opinions, I consider that as a result of the transport accident, Mrs Hebaiter suffered an exacerbation of her pre-accident depressive condition, and a separate condition caused solely by the transport accident, whether characterized as a PTSD (Dr Serry) or PTSD in partial remission (Dr Tegelan and Dr Prasanna) or Adjustment Disorder with features of traumatisation (Dr Hayman). Her condition has stabilised and I consider that she has a long-term mental or behavioural disturbance or disorder.
43 The consequences of this psychological impairment have been dramatic for her. Although prior to the transport accident her life was centred around her family, she was able to socialise freely, to drive where she wanted day or night, and to ferry her grandchildren to and from school and her home. Her psychological symptoms, consistent with mild depression, did not include post-traumatic disorder symptoms, and were managed on a dose of 75mg per day of antidepressant medication. As at the date of the hearing, however, the picture is considerably different. Dr Serry noted that the plaintiff reported feeling depressed much of the time; having reduced concentration and memory; having a loss of appetite; feeling jumpy; thinking of the car accident daily; having very frequent flashbacks and feeling very nervous and hypervigilant when driving.[53] Her treating psychiatrist, Dr Prasanna, increased her antidepressant medication to 225 mgs per day. She continues to suffer PTSD related symptoms including continuing to hear the “bang” of the collision, anxiety when in a car, and features of traumatisation. She no longer travels by car at night. This limits her social life. She only drives locally during the day and is anxious when doing so. She no longer drives her grandchildren at all, which upsets her. Being away from home, and in crowded places, makes her anxious.
[53] PCB 87
44 I acknowledge that the significance of what the plaintiff has lost by virtue of her psychological injury may be informed to an extent by what has been retained.[54] I also acknowledge that many of the plaintiff’s current psychological experiences could be said to describe both symptoms and consequences of the plaintiff’s severe depression and PTSD (whether in partial remission, or not).[55] However, as set out in the previous paragraph, there are additional consequences in terms of the plaintiff’s ability to drive and the reduction in her social life, independence, and enjoyment of life. I have attempted to identify above all the relevant circumstances personal to the plaintiff. Taking the whole of the evidence into account, and making the value judgment required of me, I consider that in terms of pain and suffering, compared with other cases in the range of long-term mental or behavioural disturbances or disorders, the consequences of the plaintiff’s long-term mental disorder are “severe” and therefore meet the definition of “serious” in sub-paragraph (c) of s 93(17) of the Act.
[54]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, [27]
[55]Katanas v Transport Accident Commission [2016] VSCA 140, [11]
Sub-paragraph (a) - long-term impairment of the function of the spine
45 The plaintiff suffered pain in the neck, back and shoulders after the accident, and saw her doctor the next day. She attended physiotherapy, and, when her pain persisted, was referred to an orthopaedic surgeon, Mr Quan, who recommended conservative treatment.
46 In her affidavits[56], the plaintiff made no mention of the pre-accident state of her neck and lower back. She stated that she suffers constant variable pain in her lower back and neck which interferes with her sleep. She takes 2 Panadeine Forte tablets at night and 6 Panadol tablets per day. She attended a pain management course over 2 months from March 2012, but stated that she struggled to accomplish the goals set for her, which included: cleaning the windows of her home, driving to Northland shopping centre, and shopping more easily. The heavy domestic duties she used to perform (vacuuming, sweeping, washing dishes and hanging out clothes) are now performed by her husband and son. She cannot carry heavy shopping, walk long distances, nor sit or stand for long periods.
[56] PCB 7-12, 18-24
47 The plaintiff’s daughter stated in her affidavit that she sees her mother every day and that the plaintiff complains of pain “all over her body” including her neck, back and right leg.[57] Her mother has trouble walking long distances and takes medication for her pain.
[57] PCB 16
48 The plaintiff’s husband stated in his affidavit[58] that since the transport accident, the plaintiff limps, takes medication for her pain, and no longer is able to do the domestic cleaning, shopping and cooking duties that she used to do. The couple no longer share a bed because the plaintiff’s sleep is disturbed by her neck and back pain.
[58] PCB 13-14
49 In cross-examination, the plaintiff was taken to her general practitioner’s clinical notes which included an entry on 7 December 2012, stating “chronic neck/back pain, wants to see a physiotherapist”.[59] The plaintiff said that this was a muscular problem and only involved mild pain. She did not recall seeing the doctor on 5 November 2014 and giving a two-month history right buttock pain, nor did she recall being referred for a CT scan of the lumbar spine. She denied taking Panadeine Forte for joint pain prior to the transport accident and was taken to a number of entries indicating that Panadeine Forte had been prescribed to her.[60]
[59] Exhibit 1 – Mill Park SuperClinic notes at 28
[60] Transcript of Proceedings, 28 August 2017, 25-33
50 She agreed that during the pain management program she managed to do some housework very slowly to avoid flare-ups, and that the frequency of her pain reduced, but said that she is in pain all the time. She said that she now takes Panadeine Forte only a couple of times per week, every second or third night, and agreed that this was different to what she stated in her affidavit[61] (that she takes two Panadeine Forte tablets “at night”). She agreed that some of the goals (such as vacuuming, mopping 2 rooms per day and driving to her daughters alone at night) set during the pain management program[62] were achieved once or twice but that she no longer does those activities. She denied achieving the goals of driving to Northland shopping centre, cleaning windows at home, and shopping for 2 hours with breaks.[63]
[61] PCB 22
[62] See DCB 6
[63] DCB 11
51 The plaintiff’s treating physiotherapist, Neil Lorimer, reported on 10 November 2015[64] that he treated her from April 2015 for her neck and back pain and that, as a result of the treatment, the plaintiff “now reports less pain and is managing her symptoms more effectively”. In a further report dated 7 February 2017, Mr Lorimer reported[65] a history from the plaintiff of less pain than when he had seen her previously. The plaintiff was “managing her symptoms effectively through hydrotherapy and a home exercise program and I have advised her to continue this independently”.[66] “Due to her progress”, Mr Lorimer noted, the plaintiff no longer needed physiotherapy as regularly as before and that he would continue to monitor her and “progress her exercise program as appropriate”.[67]
[64] PCB 25
[65] PCB 26
[66] PCB 27
[67] PCB 27
52 The physiotherapists who conducted the physiotherapy part of the plaintiff’s 12-week pain management program between March and May 2017, Anne Sammells and Nick Economos, reported[68] that at initial assessment the plaintiff showed “slightly reduced range of movement in the neck and lumbar spine movements”.[69] They reported that by the end of the program although there “had not been a significant change in her pain levels compared to at initial assessment, her level of pain interference had significantly reduced (from 7.7/10 at initial to 2.8/10 at discharge) indicating increased functioning despite persistent pain”.[70] They also reported:
…Mrs Hebaiter indicated that she is doing more domestic tasks, completing some of the mopping and sweeping and she can now manage the shopping independently. Her driving capacity had increased as had her socialising.
…At discharge on the 30th May she reported that she felt confident to self manage her pain and plans to continue to use the pain management strategies she has learnt. If she continues to do this then her prognosis in the future is favourable for her continuing to increase her capacity to carry out her activities of daily living.[71]
[68] PCB 60
[69] PCB 61
[70] PCB 62
[71] PCB 62
53 Gerald Quan, orthopaedic surgeon, saw the plaintiff in August and September 2015. He reported on 10 June 2016[72] that at the first consultation she complained of “quite generalised musculoskeletal pain symptoms” with the neck pain being the most painful, as well as “radiation of pain and numbness down the entirety of both of her arms and legs” and hands.[73] On examination, he found a satisfactory range of movement of her cervical spine in all directions. Neurological examination was normal. He noted that the X-rays and CT brain scan were unremarkable. He arranged for an MRI of her cervical spine and considered that the findings showed nothing “untoward”: “no major disc protrusion, no obvious acute or old fracture, no signal inflammatory change in the posterior paraspinal musculature and no major spinal stenosis or neural compressive pathology seen at any level”.[74] He diagnosed “post-whiplash syndrome” and noted that the natural history of the syndrome “is generally very favourable” and that he had reassured her to this effect.[75] He felt that her prognosis “should be optimistic”.[76]
[72] PCB 28
[73] PCB 28
[74] PCB 29
[75] PCB 29
[76] PCB 29
54 Mr Russell Miller, orthopaedic surgeon, provided a medico-legal report dated 7 March 2016 to the plaintiff’s solicitors[77] which noted a past history of “some minor symptoms in the neck, low back and right knee prior to the accident, however these symptoms have become much worse since the accident”.[78] Mr Miller reviewed the radiology and stated that the X-ray of the spine dated 10 March 2015 revealed “degenerative changes in the lower thoracic and lower lumbar area”, while the MRI scan of the cervical span dated 24 August 2015 revealed “degenerative disease in the cervical spine and a disc bulge at the C5/6 level”.[79] Mr Miller opined that in the transport accident the plaintiff suffered a musculo-ligamentous strain to the lumbar and cervical spine and aggravation of degenerative disease in these areas. He found no radiculopathy or neurological deficit. He felt that the prognosis was “only fair”, and that ongoing conservative treatment was appropriate.[80]
[77] PCB 67
[78] PCB 70
[79] PCB 71
[80] PCB 72
55 On 30 January 2017, Mr Miller reported[81] that the plaintiff told him her neck symptoms were much the same as when he last reviewed her but that her major problem was her low back, which was more serious than her neck pain. Her back symptoms had worsened since the last review, and there was still radiation to the buttocks and down the legs. She reported ongoing problem with sleep disturbance. On examination, he noted diffuse tenderness of the cervical and lumbar spine. In relation to the cervical spine, he repeated the conclusions contained in his previous report. In relation to the lumbar spine, given the poor response to conservative measures, and the deterioration of her symptoms, he felt that the prognosis for the lumbar spine is “fair/poor”.[82] He repeated his conclusion that the transport accident aggravated the plaintiff’s pre-existing symptoms in the cervical and lumbar spine.
[81] PCB 76
[82] PCB 81
56 The plaintiff’s treating general practitioner, Dr Kristine Tegelan, reported on 7 August 2016[83] that the plaintiff’s presentation was “clearly compatible with whiplash injury”, and that, given that 16 months had passed since the accident, it was uncertain when she would fully recover. On 19 May 2017, Dr Tegelan reported that during 17 or so consultations from March 2015 the plaintiff complained of “constant neck pain and generalised body aches”[84] but that on examination her cervical range of motion was not restricted, although there was tenderness in her cervical spine. There were no obvious physical abnormalities on examination. Dr Tegelan concluded:
She is suffering from pain disorder which resulted from the road trauma. Pain disorder is, by definition, a diagnosis of exclusion in which pain is experienced for more than 6 months with no obvious physical cause and the symptoms of which have interfered in the person’s social, occupational and other areas of functioning…
…This condition may last for many years especially if the patient has had the symptoms for a long time. The prognosis for remission of symptoms is better when patients are able to continue doing previous activities even with the pain.[85]
[83] PCB 54
[84] PCB 57
[85] PCB 57
57 In her most recent report dated 19 May 2017[86], Dr Tegelan repeated this conclusion in relation to pain disorder and noted that the typical pattern for the plaintiff’s chronic pain was likely to be “occasional flare-ups alternating with periods of low to moderate pain”.
[86] PCB 58
58 Associate Professor Bruce Love, orthopaedic surgeon, reported on 16 March 2017[87] that the plaintiff complained of ongoing pain in the lower back, which is at times severe, radiates into the upper thigh, and causes her to limp. On examination he found some mild paraspinal tenderness but a near full range of movement of the neck. The lumbar spine was tender with mild restriction of motion but full straight leg raising and no abnormal neurological signs. He noted the x-ray of the lumbar spine dated 10 March 2015 revealed mild degenerative changes while the x-ray of the cervical spine dated 6 July 2013 was normal. He concluded that she suffered a soft tissue injury to the cervical and lumbar spine in the transport accident. She told him that her symptoms were worsening, and he was not able to predict whether her condition would improve or deteriorate with time. He found no inconsistencies between his examination findings and her complaints. He noted that the impact of the injuries were that they prevented her walking long distances or engaging actively in social events.
[87] DCB 25
59 Associate Professor Richard Stark, neurologist, reported to the defendant’s insurers on 7 April 2016[88] that the plaintiff complained to him, relevantly, of neck and lower back pain. She was able to wash and dress herself, and could sit and stand for about half an hour and walk for twenty to thirty minutes. She was limited in her household tasks such as vacuuming but could do a bit of mopping and hanging out the clothes. On examination, he found neck movements were all mildly restricted, being about 80% of the normal range with no associated palpable spasm, while back movements were more restricted, being about 50% of the normal range in all directions with some associated paraspinal muscle spasm. He considered that her condition was substantially stable.
Findings and reasons
[88] PCB 104
60 There appears to be consensus between doctors, and I therefore find, that the plaintiff suffered a musculo-ligamentous strain (Mr Miller and Mr Love) or whiplash-type (Dr Tegelan and Mr Quan) injury to the cervical and lumbar spine in the transport accident, which exacerbated pre-existing degenerative changes in her spine, resulting in long-term impairment of the function of the spine. I accept that in the light of Dr Tegelan’s clinical note on 5 November 2014[89] that the plaintiff complained of “two months of constant right buttock pain getting worse with walking”, for which she was prescribed Panadeine Forte and referred for a CT scan of the lumbar spine, it is likely that the plaintiff had a symptomatic lumbar spine prior to the transport accident.
[89] Exhibit 1 – Mill Park SuperClinic notes at 20
61 Unfortunately, in spite of an initially favourable prognosis for her condition, particularly from her treating physiotherapists and orthopaedic surgeon, the plaintiff continues to suffer ongoing symptoms, particularly of neck and back pain and the weight of the medical evidence is that her condition has stabilised. I am satisfied that she has sustained a long-term impairment of the function of the spine as a result of the transport accident in the form of aggravation of pre-existing degenerative and symptomatic changes in the lumbar spine and aggravation of pre-existing asymptomatic degenerative changes in the cervical spine.
62 I accept the plaintiff’s uncontradicted evidence, which is largely supported by her daughter and husband in their affidavits that as a result of transport accident she has constant back pain and to a lesser extent neck pain, which requires ingestion of substantial daily analgesic medication, that the pain affects her sleep, restricts her ability to walk long distances or sit or stand for long periods, to go shopping, do housework and cooking, and affects her physical relations with her husband.
63 In all the circumstances, I am satisfied that, in terms of pain and suffering, the consequences of the long-term impairment of the spine established as at the hearing date are more than considerable when compared with other cases in the range of long-term impairments of the spine.
Conclusion
64 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the psychological injury and the injury to the spine suffered as a result of the transport accident on 24 February 2015.
65 I reserve the question of costs.
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