Hoang v Transport Accident Commission
[2010] VCC 575
•28 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01064
| KIM HOANG | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14, 15 and 16 April 2010 |
| DATE OF JUDGMENT: | 28 May 2010 |
| CASE MAY BE CITED AS: | Hoang v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0575 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – serious injury application pursuant to s.93 Transport Accident Act1986 – serious injury claimed for severe long-term mental or severe long-term behavioural disturbance or disorder – leave granted to the plaintiff to commence proceedings.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with | Maurice Blackburn Pty Ltd |
| Ms J Forbes | ||
| For the Defendant | Ms J Dixon SC with | Solicitor to Transport |
| Ms A Magee | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.93(4)(d) of Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of a transport accident which occurred on 14 March 2002 (“the accident”).
2 Sub-section (6) of the Act provides that a court must not grant leave under sub-section (4)(d) unless the court is satisfied that the injury is a serious injury.
3 The definition of “serious injury” relied upon by the plaintiff is under sub- section (17)(c):
“(c) severe long-term mental or severe long term behavioural
disturbance or disorder.”
4 The injury relied upon in the present application is a Major Depressive Disorder, Anxiety, Post-Traumatic Stress Disorder, shock, stress and Post- Traumatic Anxiety.
5 In considering the effect of the plaintiff’s injuries and related impairment, I am required to consider whether the consequences of the impairment upon the plaintiff are both serious and long-term. The plaintiff must satisfy me, on the balance of probabilities, that the consequences of her injuries in terms of impairment or loss, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as being at least “very considerable” and certainly more than “significant” or “marked”.
6 The plaintiff relied upon the following evidence:
• Her two affidavits, sworn 23 December 2008 and 2 March 2010. • An affidavit of her husband, Anh Tuan Pham, sworn 31 March 2010. • The plaintiff’s Court Book, pages 5-44 and 50-79. • The police report.
7 The plaintiff and her husband were cross-examined.
8 The defendant relied upon the following evidence:
• The defendant’s Court Book, pages 19-25; 29-52; 70-82; 245; 247; and 353-59. • A letter from the Transport Accident Commission to Dr Serry dated 29 July 2009. • Film taken of the plaintiff. 9 Ms Stephanie Fletcher, the driver of the vehicle in the first accident, was cross-examined. The plaintiff was involved in a second rear-end accident in October 2003. The defendant conceded that it would be difficult to identify any real difference after the second accident to the plaintiff’s condition.
10 Counsel for the defendant submitted that:
(1)
The plaintiff has not satisfied the Court that she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder.
(2) The plaintiff’s credit was in issue. (3) There is no longer a causal link between the plaintiff’s psychological state and the consequences of the accident.
The Evidence
11 In her first affidavit, the plaintiff deposed that:
•
She was born in Vietnam on 4 April 1961 and is now aged forty-nine. She is married with four children (aged from twelve to twenty years). She studied English after coming to live in Australia. She commenced a computer studies course at Chisholm Institute of TAFE, which she stopped when she became pregnant with her first child.
•
She suffered injuries in the accident on 14 March 2002. She was stationary in Manning Drive, Noble Park, when a vehicle driven by Ms Fletcher collided with the rear of her vehicle.
•
She has not worked since the accident. Prior to the accident, she planned to complete her computer studies’ course and work in a job appropriate for her qualifications, once her youngest child commenced school in 2002.
•
The day after the accident, she attended the St James Avenue Medical Centre, where she was treated with medication and told to rest. She was suffering from neck and back pain, headaches and pain going down her left shoulder and arm. Her symptoms did not improve.
•
She suffers from the following symptoms and disabilities as a result of the injuries suffered in the accident: neck pain; pain from her head down to her left arm and leg; weakness of her left side; difficulty sleeping; anxiety; nightmares; depression; irritability; problems with family relationships; difficulty concentrating; impaired memory; suicidal thoughts; fatigue; a lack of energy; dizziness; a loss of interest in life; difficulty with having sexual intercourse; an inability to handle stress, and an inability to undertake housework.
•
She has undergone the following treatment of her physical injuries: ongoing consultations with Dr Chan, her general practitioner; on 6 June 2002, she commenced seeing Dr Yvonne Pun, a rheumatologist, who provided injections every several months in her neck; on 14 June 2002, she commenced seeing Dr Richard Clements, a rehabilitation specialist at the Victorian Rehabilitation Centre, where she underwent hydrotherapy, physiotherapy and counselling.
•
She has undergone the following treatment of her psychological symptoms: in mid-2002, Dr Chan prescribed anti-depressant medication; on 8 November 2002, she commenced seeing Dr Geoffrey Hogan, a psychiatrist, who treated her with various medications. She is currently not taking any medication and has not taken any for a sustained period because of side-effects. She was referred to Ms Colleen Crutchfield, a psychologist, who she saw for some time.
•
In October 2003, she was involved in another motor vehicle accident (“the second accident”) which exacerbated her existing symptoms. She believes, and it was conceded, that the major causes of her symptoms are the injuries suffered in the first accident.
•
She has been unable to commence her intended course or work because of her injuries.
12 In the plaintiff’s second affidavit, she deposed that:
•
The vehicle she was driving in the accident was a solid Mercedes-Benz, which was written-off in the accident. The day after the accident, she visited Dr Chan and complained of pain and stiffness in her neck, a headache which would not go away, and a heavy and “achy feeling”. The neck pain was worse on the left side and extended into her left shoulder, arm and leg. The neck pain and headache continued.
•
During her rehabilitation program with Dr Clements between June 2002 and April 2003, she was struggling to cope with her pain and to manage her ordinary activities. Dr Clements encouraged her to take anti- depressants, which she was reluctant to do. She did start taking Zoloft, but found that her mood became lower. In the end, Dr Clements suggested rehabilitation was impossible because of her inability to cope emotionally and psychologically.
•
Since the accident, she finds driving difficult because of neck and left arm pain, and is fearful when in the car. However, she had to continue driving in order to care for her children. After a VicRoads’ assessment, it was recommended that she should have a spinner knob on the steering wheel to assist with her left arm.
•
She ceased taking pain medication because of stomach problems. In 2003, she underwent a gastroscopy for her stomach problems and was prescribed Pariet, Nexium and Norspan patches, but she experienced side-effects.
•
She currently receives home help from the Transport Accident Commission of one-and-a-half hours per fortnight (it was agreed it was two hours per fortnight).
•
She always feels like she is tired and lacks energy. She is constantly cross and shouting at her family. Her relationship with her husband and children has been negatively affected. She is no longer able to assist her elderly parents. She feels sad and unwell.
•
She is currently having no treatment but wishes to find some medication to reduce her pain which does not cause side-effects.
13 The plaintiff’s husband, Anh Tuan Pham, deposed in his affidavit that:
•
He came to Australia from Vietnam in 1981 and met and married the plaintiff in Australia. He trained as an engineer in Vietnam. When he arrived in Australia, he commenced studying Engineering at Monash University. His wife became pregnant with their first child whilst he was undertaking a PhD in engineering and the plaintiff was studying computers at Chisholm Institute. As a result, he converted his PhD to a Masters and the plaintiff deferred her studies. He now runs his own small business as a conveyancer and mortgage broker.
•
While the children were young it was important for the plaintiff to remain at home full-time. They planned for the plaintiff to return to study or work once the children were all of school age.
•
Before the accident, the plaintiff was a happy and energetic person who coped well with a busy lifestyle – she ran a clean and organised house, was houseproud and enjoyed spending time with friends and family.
•
Since the accident, he has noticed a significant change in the plaintiff – she is withdrawn, moody, angry, becomes easily upset and teary. The plaintiff is unable to complete household tasks; the home is messy and disorganised. These changes have had a drastic effect on him and the children.
•
He is troubled that he is unable to help her and that the doctors do not seem to be able to offer further treatment.
14 The plaintiff’s husband was cross-examined. He said he could cope with the untidy, disorganised and messy house but the most difficult issue was the plaintiff’s mood changes. He said the household was very stressful for all members of the family and in his culture there is a reluctance to seek professional counselling. He said his children were lazy. He has asked them to assist their mother but any assistance was short-term. He agreed that earlier this year he had been the subject of a finding of dishonest conduct in relation to his business affairs. He had not discussed these problems with his wife. He presented as a concerned husband and father who was at a loss to understand how he could further assist his family other than by working long hours to financially support the family unit. I formed the opinion that he was a credible witness due to the concessions he made in cross-examination.
The Plaintiff’s Medical Evidence
15 Dr Chan, the plaintiff’s general practitioner, was required for cross- examination. He had provided three reports, dated 28 May 2004, 12 April 2006 and 29 November 2009. He sees the plaintiff regularly.
16 The plaintiff first consulted Dr Chan the day after the accident complaining of a headache and neck pain. She was prescribed Voltaren Rapid and Panadeine Forte, and advised to rest.
17 By May 2004, the plaintiff had received the following treatments: acupuncture; analgesia; a rehabilitation program; anti-inflammatories; psychological counselling and cortisone injections. She was currently taking Digesic, Zantac and Zoloft. Dr Chan said that she had increasing depression with low effect, was crying all the time, and complained of lack of energy despite anti- depressants and psychological counselling.
18 In 2006, Dr Chan noted that, despite treatment, the plaintiff’s pain gradually deteriorated. He considered she was not fit for any duties and was unlikely to be so in the near future. He considered her condition had stabilised. He considered her prognosis was poor due to the nature of the injuries.
19 It was his view that the plaintiff was depressed and suffering from depressive symptoms, such as tiredness, lethargy, loss of interest, sleep disturbance and crying for no reason. He said that she had tried various anti-depressants and, most recently, Lexapro, but had failed to comply with treatment due to various side-effects, such as skin rashes and heartburn. He considered she was unfit for any employment duties and was likely to remain so in the future. He considered her prognosis was poor due to the chronic nature of the injuries and lack of improvement despite treatment. His diagnosis was Chronic Pain Syndrome and depression.
20 In cross-examination, Dr Chan said the plaintiff had been a patient of his practice since 1991 and had not complained of depression prior to the accident. He conceded that as she had not attended the practice for a couple of years prior to the accident, he was not able to say anything about her mental state immediately prior to the accident. However, I accept that if the plaintiff was suffering from depression prior to the accident, she would have consulted her general practitioner, particularly in view of the regular attendances she made following the accident.
21 Dr Chan agreed that the plaintiff was only just running her home.
22 Dr Chan was shown a video taken of the plaintiff by the defendant. It showed her driving a vehicle, which she identified as her husband’s, to a Bob Jane business where the tyres on the vehicle were changed and she was removing objects from the backseat of the vehicle. Dr Chan conceded that the plaintiff’s presentation at his surgery in terms of stiffness and slowness was different to the way she presented in the video. He agreed that in the video, the plaintiff did not undertake any activities that were inconsistent with what he would expect her to go through in attending court, nor did the video disclose any activity by the plaintiff that was inconsistent with the level of capacity she described to him.
23 Dr Chan said he had seen the plaintiff regularly since 2002 and had formed the view that she was truthful. He conceded that she was being investigated for skin rashes and that the reports of Dr Sharp did not attribute the skin rashes to the anti-depressant medication.
24 Dr Richard Clements, a rehabilitation physician, saw the plaintiff at the Victorian Rehabilitation Centre from 14 June 2002 until April 2003. The plaintiff had been referred by her general practitioner, Dr Chan, for pain management rehabilitation.
25 Dr Clements formed the view that the plaintiff had a major psychological problem from the accident. He said she complained that she was anxious in cars, tearful and depressed, and was very irritable. She was unable to perform her household activities, which made her very depressed. She complained that part of the reason she felt so down was that her youngest of four children was finally going off to school and she felt this would be the year when she would start doing something for herself, and complained that the accident had taken that opportunity away from her.
26 Dr Clements reviewed the plaintiff in August 2002, when she was engaged in a pain management rehabilitation program. She was reviewed again on 15 October 2002 and her condition was unchanged. Dr Clements referred her to a psychiatrist, Dr Hogan, to review her anti-depressant medication.
27 Dr Hogan reported that he changed the plaintiff’s anti-depressant medication to Surmontil and considered she had a depressive illness. In December 2002, she was unable to tolerate the anti-depressants due to side-effects.
28 In February 2003, in a letter to Dr Hogan regarding the plaintiff’s progress, Dr Clements said that he was suspending her outpatient rehabilitation as she was not making any significant progress, which he considered to be due to her significant depressive disorder.
29 In April 2003, when Dr Clements reviewed the plaintiff, he stated that she had a full-blown Chronic Pain Syndrome resulting from a soft tissue injury obtained from the accident. She was suffering consequent depression from the Chronic Pain Syndrome and had not responded to any pain management rehabilitation. At that time she was about to consult a psychologist.
30 The plaintiff was treated by Dr Hogan, a psychiatrist, in November 2002 until February 2003. It was his view that she had developed a Chronic Pain Syndrome. She was markedly impaired with respect to household duties and would not be capable of employment due to her marked depressive symptomatology. He thought her injuries were consistent with the accident.
31 Dr Yvonne Pun, a rheumatologist, saw the plaintiff on 6 June 2002. She noted that the plaintiff cried during the consultation. It was her view that the plaintiff had suffered a physical injury, most likely whiplash, and was receiving the appropriate treatment for the physical aspects of it. She was also suffering from secondary effects of pain and loss of functional ability and pain amplification. She noted that the plaintiff was taking Zoloft and was receiving treatment from the Victorian Rehabilitation Centre.
32 In August 2002, when Dr Pun reviewed the plaintiff, she commented on the psychological issues, the fact that the plaintiff cried a lot, complained of nightmares about the accident and tablets sticking in her throat.
33 Dr Pun reviewed the plaintiff in March 2003. It was her view that she had developed a chronic generalised pain and that she was emotionally distressed.
34 The plaintiff was reviewed again in December 2003 and said that she was taking Zoloft. Dr Pun’s assessment was that the plaintiff had chronic pain and depression after a whiplash injury to the neck.
35 In September 2005, the plaintiff was seen by Dr Pun, complaining of pain and an inability to cope. Dr Pun explained that she had a pain syndrome that developed after the motor vehicle accident. She was seen on a number of occasions in 2005.
36 Dr Pun reported in 2009 that she had last seen the plaintiff in May and August of 2007. She reported that the plaintiff had chronic pain, that her physical symptoms and emotional distress were interfering with her capacity as a housewife and mother, and she considered that the prognosis was poor.
37 Dr Simone Fisher, a psychologist, prepared a Discharge Summary from the Victorian Rehabilitation Centre which was dated 26 March 2003. She said the plaintiff’s severe depression and her high level of distress appeared to be significant factors in her difficulty to take on self-management strategies to deal with pain. She indicated that if the plaintiff’s depression improved, that she may be appropriate for a re-assessment and further rehabilitation.
38 Ms Colleen Crutchfield, a psychologist, treated the plaintiff for a period in September 2005. Ms Crutchfield diagnosed depression and Pain Disorder associated with psychological factors and her general medical condition.
39 The plaintiff was examined by Dr Glazer, a psychiatrist, in June of 2006. Dr Glazer said the plaintiff was suffering from a mild to moderately severe Major Depressive Disorder with fairly prominent anxiety symptoms present, particularly with respect to encounters with reminders of the accident. The plaintiff had provided him with a history that she was planning to take up some form of work or study when her youngest child commenced school. She was not able to do this because of the accident. Dr Glazer stated:
“Psychiatric factors are currently playing a significant part in restricting her work capacity. In particular, as already explained, they are influencing her perception of her physical problems to a considerable extent. Her anxiety regarding car travel represents at least a slight restriction on her mobility. Her depressed moods, loss of self- confidence and feelings of rejection have almost certainly played their part in disrupting relationships with her family and with others. She also experiences some concentration difficulties which make it difficult (e.g.) for her to follow conversations.”
40 Dr Glazer recommended that the plaintiff resume anti-depressant treatment and counselling with a clinical psychologist or psychiatrist. However, he considered her psychiatric state had stabilised. He considered her psychiatric problems were likely to be a feature of her life for a considerable period.
41 In December 2009, the plaintiff was examined by Dr David Weissman, a psychiatrist, at the request of her solicitors. He was cross-examined.
42 It was his view that the plaintiff was suffering a severe Chronic Pain Disorder with psychological factors. In addition, she was suffering from symptoms and features of a Post-Traumatic Stress Disorder which he described as “mild”. He said she had adapted, adjusted and coped in a relatively poor and dysfunctional manner consequent to the accidents, which were not really traumatic, frightening or terrifying. He considered her psychiatric prognosis was poor and unfavourable: she had no capacity for paid employment in the open market and that she had suffered a severe decline and deterioration in her quality of life, level of function and activity since the accident.
43 In cross-examination, Dr Weissman said the plaintiff’s presentation to different doctors complaining of pain and depression and presenting as tearful was consistent with his diagnosis of Chronic Pain Disorder or Syndrome and a Chronic Major Depressive Disorder.
44 When asked whether the plaintiff had exaggerated her symptoms, Dr Weissman said he had no reason to doubt her validity, veracity or credit. He said that he diagnosed symptoms and features of a Post-Traumatic Stress Disorder; he did not diagnosis a Post-Traumatic Stress Disorder.
45 He agreed that medication for depression, such as Effexor, needed to be taken for a period to be effective but said he had a number of patients who were reluctant to take anti-depressants.
46 Dr Weissman was asked whether part of the reason for the plaintiff’s chronic pain presentation was for secondary gain, in that she was completely overwhelmed by her family’s lifestyle and part of the chronic pain presentation was trying to get help from her family. He thought that doubtful. He was asked why, and said what was being put to him was too hypothetical, as the plaintiff was active and functioning well before the accident; she was not depressed before the accident; but since the accident she is no longer functioning. Further, he said that behaviour only persists if the patient is obtaining results. This was not occurring for this plaintiff.
The Defendant’s Medical Evidence
47 The plaintiff was medically examined by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 11 January 2005, and again on 17 September 2009.
48 In 2005, Dr Thomas diagnosed a diffuse and widespread persistent pain syndrome. He stated that the plaintiff’s emotional situation was poor and was driving her pain presentation. He considered the emotional situation was the dominant issue and overrode any physical pain. He thought it appropriate that the plaintiff have two hours of home help every alternate week and he considered that the requirement for domestic assistance is “almost more determined by her emotional state”.
49 In 2009, Dr Thomas noted that occasionally, fairly trivial injuries can lead to significant emotional responses. He considered the problem was dominant. He considered ongoing psychological support would be appropriate, but that physical therapies would be inappropriate. He accepted that the plaintiff would have difficulty performing full domestic care duties in view of her persisting presentation. He stated that the prognosis for non-organic emotional aspects would be best determined by other specialists.
50 In 2007, the plaintiff was seen by Dr Nathan Serry, a psychiatrist. Dr Serry said that she appeared depressed, despondent and worn out. She conveyed a sense of desperation in relation to her desire to be helped. There were prominent post-traumatic anxiety and phobic features. He thought her insight was restricted. His prognosis was extremely guarded. He considered she had an entrenched pain syndrome with a nexus between physical and psychological aspects of her presentation. He considered she should be prescribed anti-depressant medication and that she should be managed by a psychiatrist.
51 Dr Serry saw the plaintiff again in 2009 and noted that her level of physical symptomatology was out of proportion to the severity of the accident and that this was consistent with a Pain Disorder diagnosis. He considered that her psychiatric condition affected her capacity to perform normal day-to-day activities and that the extent of such incapacity would be considered moderate. His prognosis was guarded.
52 I accept that the medical evidence of the defendant is similar to that relied upon by the plaintiff. The defendant’s doctors said fairly trivial injuries can lead to significant emotional responses. Dr Thomas and Dr Serry accepted that given the plaintiff’s presentation, she would have difficulty performing her normal day-to-day activities. Dr Serry assessed her incapacity as moderate and his prognosis was guarded.
The Credit of the Plaintiff
53 I formed the view that the plaintiff was a credible witness. She presented as tearful. She often repeated herself. She was keen to ensure the Court understood the consequences of the injury to her and how her day-to-day life and relationships had been affected. She portrayed to the Court her frustration that she had attended all medical referrals and undertaken physiotherapy, hydrotherapy, massage, and taken prescribed medication despite side-effects, with limited success. She said she dealt internally with her issues, that she was unable to talk to her children and husband and that she put on a brave front at home, and only spoke to doctors about her problems. She presented as a very genuine woman who felt she was letting her family down because she could not provide the meals that the family enjoyed, and maintain the house to the standard that she attained prior to the accident.
54 Further, it had been her plan, when her youngest child started school, that she would complete her computer studies’ course and work in a job appropriate to her qualifications. The plaintiff informed the Court that she was one of nine children and her sisters were in paid employment while caring for their families. Her evidence was supported by her husband. Further, she had told a number of the doctors that she had consulted that this was an issue for her, that because of the injuries she suffered, she could not return to study and work. I accept the plaintiff’s evidence that she intended to return to study and work when her youngest child started school. I accept that her husband downplayed the consequences of her condition upon their relationship to protect the relationship. He agreed that they did not talk regularly. She made concessions: she said the police report was inaccurate and that the car had not been towed away. She said that she had speeded and paid fines. Her answers to questions were consistent with the histories she had provided to the doctors. She did not readily accept what was put to her by counsel for the defendant. I accept her evidence, not only on the circumstances of the accident but also as to the consequences of the accident upon her lifestyle and her family.
Has the Plaintiff established her Entitlement to Commence Proceedings with respect to the Pain and Suffering Consequences of the Injury?
55 In order to establish the plaintiff’s entitlement to commence proceedings seeking damages for pain and suffering and loss of enjoyment of life, she must establish, on the balance of probabilities, that she has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder. The pain and suffering consequences of which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may be fairly described as being more than “serious” to the extent of being “severe”. The assessment of the plaintiff’s condition is to be undertaken as at the date of the application.
Analysis of the Defendant’s Submissions
56 Counsel for the defendant submitted that if things were as bad as the plaintiff claimed then the plaintiff should have been more co-operative with treatment options, in particular, counselling and persisting with anti-depressants. For a number of years she had not received psychiatric treatment, or psychological counselling, whilst in recent times the evidence was that she had seen many doctors. I accept the plaintiff had not received treatment from psychiatrists and psychologists. Dr Chan agreed that the plaintiff had attended all doctors to whom she had been referred. She consulted Dr Chan regularly and is still seeing him.
57 Counsel for the plaintiff referred to the Discharge Summary of Allied Health prepared by Dr Simone Fisher, where it was noted:
“If Kim’s depression improves she may be appropriate for a re-
assessment and further rehabilitation.”
58 I accept Dr Weissman’s evidence that some patients are reluctant to take anti- depressants.
59 A further submission by the defendant was that the conduct of the plaintiff’s husband in continuing to work long hours and not taking active steps to offer more support to the plaintiff was an indication that things were not as bad as portrayed by the plaintiff. I do not accept that submission. I refer to my comments about the plaintiff’s husband in paragraph 13. I accept the plaintiff’s evidence that she tried to put on a brave face at home and did not talk much about the pain that she was suffering. I accept that the consequences to this plaintiff are that she has had a decline in her family relationships, that she does have difficulties communicating with her family and that they are the direct result of the accident. I refer to the comments made by the plaintiff’s husband in his affidavit and in evidence, and also the evidence given by the plaintiff’s general practitioner that she has seen him regularly since the accident. Furthermore, the plaintiff has given a consistent history to other doctors about the decline in her family relationships.
60 Counsel for the defendant submitted that there had not been adequate explanation for the ongoing Chronic Pain Disorder that the plaintiff had suffered as a result of the minor accident in 2002. I do not accept this submission. I rely upon the medical evidence of Dr Chan, Dr Weissman and the defendant’s medical evidence of Dr Clayton Thomas and Dr Serry. All said that minor injuries can lead to significant responses.
61 A further submission of the defendant was that the description of the pain which the plaintiff has suffered cannot be answered by the organic pathology. The psychological and psychiatric evidence of all doctors confirm that this plaintiff has had a significant response of a psychological/psychiatric nature to the motor vehicle accident.
62 Counsel for the defendant submitted that the impact of the accident was not great and relied on the evidence of Ms Fletcher, the driver of the other vehicle in the first accident.
63 I accept the evidence of Ms Fletcher, who agreed that the plaintiff was emotionally upset at the time of the accident. However, the general practitioner and all doctors have noted that the accident was low-impact. None have suggested her consequences are exaggerated, and Dr Chan said that she was a truthful witness.
64 The defendant was critical of the plaintiff for failing to call evidence of the family and friends whom she said had assisted in providing meals or assistance at the home. I accept that the husband’s evidence supported the plaintiff on this point and these matters were raised in cross-examination. I am further aware that the Transport Accident Commission has provided two hours per fortnight of home help for the past eight years.
Findings
65 I accept that the plaintiff’s complaints to the doctors were consistent. The medical reports show an emergence of a depressive condition at a very early stage which was described by medical practitioners as a Depressive Disorder, chronic pain, depression, severe Chronic Pain Disorder with psychological factors, Chronic Pain Disorder or Syndrome and a Chronic Major Depressive Disorder. All doctors accepted that she had a mental disorder and that her prognosis was guarded. Dr Thomas was the only doctor who said there was a slightly greater range of movement of the lumbar spine on casual observance as distinct from examination.
66 I accept that the plaintiff proposed to resume her studies and seek employment once her youngest child commenced school. That evidence was supported by the plaintiff’s husband and the plaintiff told a number of the doctors to whom she was referred of her plans. I note that a number of the doctors who saw the plaintiff considered she would be unable to work because of her emotional state.
67 I am satisfied that the plaintiff was involved in a transport accident which, to the plaintiff, resulted in her experiencing symptoms of a psychological nature which has required counselling for many years. The consequences to her are dramatic and impact upon nearly every aspect of her life as she knew it before she suffered the psychological/psychiatric disorder.
68 For the foregoing reasons, I am satisfied that the plaintiff has established that the pain and suffering consequences of her injury can be reasonably described as being more than “serious” to the extent of being “severe”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of possible mental or behavioural disturbances or disorders.
69 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injury suffered by her arising out of the transport accident on 14 March 2002.
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