Houssein v Transport Accident Commission
[2019] VCC 536
•23 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05151
| MELAHAT HOUSSEIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 April 2019 | |
DATE OF JUDGMENT: | 23 May 2019 | |
CASE MAY BE CITED AS: | Houssein v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 536 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – prior medical conditions – aggravation – development of a psychiatric injury – whether the consequences of the psychiatric injury causally related to the transport accident – whether the claimed consequences are serious – reliability of the plaintiff’s evidence
Legislation Cited: Transport Accident Act 1986
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Noori v Topaz Fine Foods Pty Ltd[2018] VSCA 323
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Mr L Allan | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr G Lewis QC with Mr P Bourke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff suffered injury in a transport accident which occurred on 5 August 2010. She brought her car to a halt at traffic lights on Ballarat Road, Sunshine. Her car was struck from behind.[1] As a result of the transport accident, the plaintiff initially suffered physical injuries, which evolved into a psychiatric injury.
[1]The parties prepared a joint Court Book (“CB”). CB 11
2 The plaintiff’s application for serious injury is limited to paragraph (c). She submitted that she has suffered a psychiatric condition which meets the statutory test of seriousness.
3 Mr D Purcell SC appeared with Mr L Allan of counsel for the plaintiff. Mr G Lewis QC appeared with Mr P Bourke of counsel for the defendant.
The Plaintiff pre-transport accident
4 The defendant submitted that the plaintiff had sought treatment for her neck, lower back and shoulders, arms, legs and a psychiatric condition prior to the transport accident. It submitted that the plaintiff could not demonstrate any, or no significant, relationship between the psychiatric injury said to be serious and any physical injuries which she suffered in the transport accident. Whatever physical condition was at the seat of the production of the plaintiff’s psychiatric injury, it was more likely to be related to her prior medical problems.
5 The plaintiff submitted that even though she sought and obtained treatment for those prior problems, that she was coping well. She said as much in her first affidavit, as did her husband and one of her daughters in their affidavits. She submitted that she suffered significant physical injuries which, when traced through the relevant medical evidence, demonstrate a relationship with the emerging and ultimate psychiatric injury.
6 The plaintiff referred to her prior medical history in her first affidavit. She described suffering back pain after a fall in 1997 for which she had occasional chiropractic treatment about six times per year.[2] She suffered a worsening of pain in her spine after a chiropractor manipulated her lower back on 1 April 2010. It resulted in pain spreading from her middle back around her chest, shoulders and shoulder blades. She subsequently experienced a settling of that pain, leaving her with occasional chest pain. She continued to experience occasional lower back pain. She experienced neck pain which she described as being rare. Her preferred treatment was chiropractic, osteopathic and Pilates treatment.[3]
[2]CB 10
[3]CB 10-11
7 Following the plaintiff’s account of her prior physical problems, she then referred to the extensive medical treatment she has had principally for her neck and lower back. She also referred to the onset of other physical problems, and emerging psychiatric problems which she elaborated on in her second and third affidavits.
8 The impression I was left with after reading the plaintiff’s affidavits is that she was functioning tolerably well before the transport accident, but since has suffered a dramatic and serious deterioration in her physical and mental health.
9 The plaintiff’s husband understood that the plaintiff had some lower back pain before the transport accident which worsened subsequently. He said that she was able to drive their children to school and do the shopping. Following that account, he described the dramatic deterioration in her overall health.[4] The plaintiff’s daughter described the plaintiff in much the same way.[5]
[4]CB 23-26
[5]CB 27-32
10 The defendant submitted that its analysis of subpoenaed clinical records demonstrates a very different picture:
· 4 September 2004 - Dr Stockman, rheumatologist – a history of recurrent lower back pain over seven or eight years.[6]
[6]CB 270
· 11 May 2007 – Dr Navani, general practitioner – headache.[7]
[7]CB 204
· 20 August 2007 – Dr Navani – x-ray lower back.[8]
[8]CB 202
· 24 August 2007 – Dr Navani – sore back.[9]
[9]CB 202
· 6 April 2008 – Dr Navani – depression.[10]
[10]CB 200
· 16 May 2008 – Dr Navani – headache.[11]
[11]CB 200
· 19 June 2008 – Dr Navani – headache and sore neck.[12]
[12]CB 200
· 3 October 2008 – Dr Janus, physician – complaints of difficulty walking because of sore ankles, wrists and elbows.[13]
[13]CB 217
· 4 February 2009 – Dr Navani – painful elbows and sore back.[14]
[14]CB 199
· 10 February 2009 – Dr Navani – note of chronic longstanding back pain.[15]
[15]CB 281
· 13 February 2009 – Dr Mitrevski, chiropractor – note of pain in arms/hands, legs/foot, low back, neck and headache and stress.[16]
[16]CB 268
· 20 April 2009 – Dr Navani – neck x-ray.[17]
[17]CB 180
· 27 February 2009 – x-ray of the spine.[18]
[18]CB 116
· 20 April 2009 – x-ray of the neck and left shoulder.[19]
[19]CB 180
· 5 June 2009 – Dr Navani – headache and sore bones.[20]
[20]CB 197
· 9 July 2009 – Dr Navani – sore neck.[21]
[21]CB 197
· 25 July 2009 – Dr Mitrevski – back and neck problems.[22]
[22]CB 271
· 25 July 2009 – Dr Georgiou – multiple consultations between 25 July 2009 and 30 July 2010.[23]
[23]CB 185-186
· 4 October 2009 – Dr Navani – sore upper chest wall.[24]
[24]CB 196
· 12 February 2010 – Dr Navani – note of chronic back pain.[25]
[25]CB 278
· 15 March 2010 – Dr Navani – sore back and neck.[26]
[26]CB 195
· 22 March 2010 – Dr Georgiou – lower back and left shoulder pain.[27]
[27]CB 184
· 29 March 2010 – Dr Georgiou – lower back, leg and arm pain.[28]
[28]CB 184
· 1 April 2010 – Dr Georgiou, chiropractor – shoulders and neck worsening.[29]
[29]CB 184
· 13 April 2010 – Dr Georgiou – pain in the shoulders, left arm, leg and headaches, and problems with sleep.[30]
[30]CB 222
· 13 April 2010 – Platinum Health and Pilates – note of back and neck problems.[31]
[31]CB 273
· 21 April 2010 – Dr Georgiou – pain in the left shoulder, left leg and arms.[32]
[32]CB 222
· 23 April 2010 – Dr Navani – burning pain in the chest.[33]
[33]CB 195
· 30 April 2010 – Dr Georgiou – constant burning pain in the left leg.[34]
[34]CB 181 and 184
· 1 July 2010 – Dr Navani – headache, pain in the left shoulder, upper back and lower back.[35]
· 29 July 2010 – Dr Bonanno, chiropractor – pain in the lower back, right hip and leg and neck.[36]
[35]CB 194
[36]CB 200
11 The clinical notes comprise a very brief cryptic reference to medical conditions for which the plaintiff sought treatment. Standing alone, the clinical notes make it almost impossible to determine the nature and extent of the pain and disablement caused by any of the conditions for which she sought treatment on the many occasions which I have set out above; however, there may be something in the submission made by the defendant that the frequency of her visits to treaters with complaints of pain in her neck, shoulders, arms, chest, lower back and legs potentially demonstrates that the plaintiff was suffering from conditions which required medical and chiropractic treatment.
12 Caution must always be exercised in making too much of clinical notes of the quality of the notes which the defendant submitted are of real significance. That caution was sounded in Woolworths Ltd v Warfe,[37] and in Philippiadis v Transport Accident Commission.[38] Clinical notes tend to be a selective summary of what the attending treater was told about by the patient and for that reason may have significant limitations on what can be made of the notes.
[37][2013] VSCA 22 at paragraph [112]
[38][2016] VSCA 1 at paragraphs [105]-[106]
13 The plaintiff submitted that the key to understanding the plaintiff’s state of health prior to the transport accident and the key to putting the clinical notes into their proper context is Dr Navani.
The Plaintiff post transport accident
14 The plaintiff first saw Dr Navani the day after the transport accident on 6 August 2010. The plaintiff informed him that she had been involved in a transport accident the previous day. The relevant part of his clinical note of that day records her complaints of injury as follows:
“feels pain-mid back and right sci[a]tica and Pain as well
couldn’t sleep/worrying with pain +
headache ++.”[39]
[39]CB 193
15 Dr Navani provided a medical report dated 25 August 2016[40] in which he was asked to answer some relevant questions. In answering those questions, he referred to her “Past History of significance”. He referred to the plaintiff having a longstanding problem with lower back pain with occasional flare-ups. He referred to the flare-ups as having occurred “since 2014”. I assume he meant 2004 because, according to the defendant’s analysis of the subpoenaed clinical records, that was the first occasion that the plaintiff saw Dr Navani for treatment for lower back pain. He also referred to the plaintiff having upper back pain localised to the left chest wall since February 2009.
[40]CB 38-41
16 Dr Navani described the plaintiff’s presenting complaints as pain in her neck, mid and lower back, with pain radiating into her right leg. He considered that the transport accident had resulted in worsening of her lower back pain with right leg pain, and the development of neck pain and chronic pain. He added that those injuries were “consistent with stated”, being the transport accident.
17 Dr Navani also considered that the plaintiff was “fully” incapacitated, and that since the transport accident had become “extremely limited” in managing her basic daily living activities and was struggling. He had little doubt that her quality of life had been adversely impacted upon by the transport accident.
18 Lastly, he considered that her prognosis was poor, and that the degree of disability was produced by persistent lower back pain, right leg pain and chronic neck pain which he related to the transport accident.
19 Dr Navani provided a further report dated 6 February 2018.[41] It would appear that after reconsidering the plaintiff’s complaints and the history of his treatment of her since the transport accident, that he considered that the plaintiff had suffered an aggravation of cervical and lumbar degeneration with non-impinging right leg radiculopathy, and a Chronic Pain Disorder with an Adjustment Disorder with Major Depression. He was asked about the relationship between the plaintiff’s injuries and the transport accident, and in answer, he said:
“I believe the transport accident has caused the exacerbation of cervical and lumbar spine and deteriorated her mental health leading to somatic symptoms disorder with predominant pain with associated adjustment disorder with generalised anxiety and major depression.”
[41]CB 46-49
20 It is an opinion that is difficult to challenge given that Dr Navani has treated the plaintiff since at least 2004. Between 2004 and the occurrence of the transport accident, he treated her often enough to have obtained a reasonable understanding of the medical problems troubling the plaintiff. With that background he was able to clinically discern the change in her symptoms and the cause of that change. I think his opinion is a compelling one which leads me to conclude that the plaintiff suffered an exacerbation of pre-existing symptoms, and probably pathology, affecting her neck, lower back and mental state, resulting in the diagnosis which I have set out above.
21 In addition, Dr Navani was convinced that as a result of her poor mental state and fragility causing anxiety, poor confidence and general lack of enjoyment of life, that her social, interpersonal relationships and family activities have been adversely impacted upon. He concluded that her prognosis was poor and that the plaintiff would require long-term medical and family support.
22 The plaintiff submitted that if I accept Dr Navani’s evidence, then there is little evidence to contradict the proposition that she has suffered a serious injury. The plaintiff submitted that the opinions of the many psychiatrists who have examined the plaintiff is nearly unanimous in concluding that the plaintiff has a major psychiatric injury. I think that is in fact so.
23 Despite my preliminary conclusion, there is other evidence which I must analyse, and in particular, a number of submissions made by the defendant relevant to the plaintiff’s reliability.
24 The attack on the plaintiff’s reliability was based upon the defendant’s analysis of the plaintiff’s evidence, and that recorded by medical practitioners. I am not convinced that they have the impact upon the plaintiff’s reliability contended for by the defendant.
25 The defendant first referred to the plaintiff’s evidence of the frequency of prior neck problems when compared with the clinical notes, and histories recorded by a number of medical practitioners.
26 The starting point is what the plaintiff said in her affidavit sworn 25 January 2017. She said that she had occasional neck pain prior to the transport accident, but the occasions when that occurred were rare. She described having occasional chiropractic treatment, on average of about six times per year. The defendant submitted that the clinical notes demonstrate a frequency in medical treatment for a neck problem which was more significant than the plaintiff was prepared to admit to.
27 Furthermore, the defendant pointed to histories in which the plaintiff told two medical practitioners that she had not experienced neck pain prior to the transport accident.[42]
[42]Dr Tan, neurologist, at CB 86 and Dr Entwisle, psychiatrist, at CB 257
28 I am not convinced that the first submission is sustainable. The plaintiff’s evidence of the frequency of episodes of neck pain and her resort to treatment appears to broadly be reflected in the clinical notes and the evidence of Dr Navani. As to the second submission – what the plaintiff told those two medical practitioners is clearly wrong.
29 The defendant next referred to the plaintiff’s evidence that she had occasional chest and back pain, but was otherwise able to carry out her usual social and domestic activities prior to the transport accident. The defendant submitted that it was a history which she repeated when examined by a number of medical practitioners.[43] The defendant submitted that I should not accept the plaintiff’s evidence, because the clinical notes demonstrate that she complained of lower back pain on up to twenty two occasions in the three years prior to the transport accident. The frequency of the complaints, and the treatment she obtained, was said by the defendant to be inconsistent with only occasional lower back pain.[44]
[43]The defendant referred to Dr Hayman, psychiatrist, as an example. She told him that she had some pre-existing lower back pain.
[44]The estimate of twenty-two occasions was not contested by the plaintiff
30 The defendant next referred to the plaintiff’s evidence and the histories recorded by some medical practitioners suggesting that she was attending for chiropractic treatment infrequently. I have referred to this to some extent above when dealing with the defendant’s submission regarding the frequency of chiropractic treatment for the plaintiff’s neck. The defendant added to that submission that she told a number of medical practitioners that she was in fact having chiropractic treatment far less than six times per year.[45]
[45]For example Dr Tan, one to two times per year, at CB 88, and Dr Hayman, twice per year, at CB 75
31 The defendant submitted that the plaintiff understated the nature and extent of her prior medical history which was likely to have misled the medical practitioners who obtained those apparently wrong histories, resulting in their opinions being less reliable.
32 On the same theme, the defendant next referred to the plaintiff’s evidence that one of the consequences of her injuries is her inability to tend a vegetable patch.[46] A number of medical practitioners recorded histories that the plaintiff had a love of gardening.[47] The defendant said that is to be contrasted with histories recorded by other medical practitioners that the plaintiff had not engaged in any level of gardening for some years prior to the transport accident.[48]
[46]CB 18
[47]For example Dr Kaplan, psychiatrist – a passion for gardening at CB 234; Dr Entwisle – enjoyment of gardening at CB 266, and Dr Jayaram, psychiatrist – an interest in gardening at CB 297
[48]For example Dr Tan – not engage in gardening since 2006 at CB 91, and Dr Stockman – no gardening for years (prior to the transport accident) at CB 188
33 The defendant collected together its analyses of these aspects of the evidence to submit that I cannot be satisfied that the plaintiff is a reliable witness. Whilst the submission hinted at the plaintiff lacking creditworthiness, I did not apprehend that the defendant placed as much significance on that as it did on reliability.
34 I am not convinced that there is sufficient in the submissions made by the defendant for me to conclude that the issue of reliability is so overwhelming that the plaintiff must fail. I propose to deal with it first before turning to the relevant psychiatric evidence.
35 The fact that the plaintiff is as unreliable as is demonstrated thus far must be seen in the context of two critically important pieces of evidence – the first is her own evidence corroborated by her husband and her daughter who attest to what the plaintiff was like before the transport accident and what she has come to. I do not accept, if this was consistent with the submission made by the defendant, that finding that the plaintiff is unreliable in some way tarnishes the evidence of her husband and her daughter.
36 I accept the plaintiff’s evidence that she was functioning at a reasonable level before the transport accident. I also accept that her neck, shoulders, arms, chest, back and legs were at various times symptomatic. The fact that she saw Dr Navani and chiropractors for treatment demonstrates that they were of sufficient concern to the plaintiff to seek active treatment. However, the fact that she sought that treatment is not of itself enough to say that she was otherwise not able to function reasonably. The obligation of the trial judges to take into account all of the evidence, not to isolate pieces of evidence from the whole.[49]
[49]Davies v Nilsen & Transport Accident Commission [2014] VSCA 278
37 In the process of reviewing all of the evidence, and in particular, the evidence on which the defendant has placed emphasis, I am satisfied of the following. The plaintiff was the victim of a rear end collision which caused the bodily pain and shock which she complained about to Dr Navani on 6 August 2010 and which she has reasonably accurately recounted in her affidavit sworn 25 January 2017. There is little doubt that the plaintiff suffered from prior physical and psychiatric problems prior to the transport accident, but that must be seen in the context of her evidence about how she was coping corroborated by that of her husband and her daughter, and most importantly the opinion Dr Navani which is absent any observation that she was in a parlous state of health before the transport accident leaving an inference to be drawn that she was functioning reasonably.
The psychiatric evidence
38 The plaintiff submitted that whether the examining psychiatrists were given a reasonably accurate account of what the plaintiff was like before the transport accident and about aspects of her claimed consequences, that does not interfere with the basis upon which they reached a diagnosis. The inaccuracies of account rather more go to the question of causation, that is, whether there were physical injuries resulting from the transport accident which are at the seat of the development of a more potent psychiatric injury which the psychiatrists went on to diagnose.
39 I will now turn to the psychiatric evidence. My overall impression is that there is really nothing much between any of the psychiatrists.
40 The first in time was Dr Hayman who examined the plaintiff on a medico-legal basis on 20 October 2016,[50] 7 June 2018,[51] and 13 December 2018.[52] Dr Hayman compared what the plaintiff was like on each occasion that he subsequently examined her. He concluded on the last occasion he examined her, that she continued to have evidence of a significant somatic symptoms disorder with predominant pain and a chronic adjustment disorder with depressed and anxious mood. He considered that her main issue related to a somatic symptoms disorder with predominant pain.
[50]CB 74-83
[51]CB 241-253
[52]CB 313-323
41 The next in time is Dr Ingram, psychiatrist, who examined the plaintiff on a medico-legal basis on 9 August 2017.[53] He concluded that she had suffered a Major Depressive Disorder secondary to her pain and the consequent limitations caused by her injuries and pain.
[53]CB 124-131
42 The next in time is Dr Kaplan, psychiatrist, who examined the plaintiff on a medico-legal basis on 4 June 2018. He concluded that she was suffering from depression and anxiety characterised as an Adjustment Disorder with Mixed Anxiety and Depressed Mood, with associated panic attacks. He was aware that others had diagnosed a Pain Disorder. He was also aware that there was some controversy about whether the plaintiff had suffered physically-based injuries, and in that context, he said that the diagnosis for Pain Disorder can only be invoked once a physical cause for the pain has been excluded or partially excluded. If she had suffered a Pain Disorder, then her prognosis would be unfavourable.
43 The next in time is Dr Entwisle, who examined the plaintiff on a medico-legal basis on 27 August 2018.[54] Despite the doubts expressed that the plaintiff’s presentation could be explained by any injuries she suffered in the transport accident, Dr Entwisle concluded that the plaintiff presented with an Adjustment Disorder with Depressed and Anxious Mood. He added that her presentation involved marked functional overlay and abnormal illness behaviour.
[54]CB 253-264
44 Lastly, Dr Navani referred the plaintiff to Dr Jayaram, psychiatrist, for treatment. The plaintiff saw him on 16 July 2018. He provided three reports dated 16 July 2018,[55] 27 September 2018[56] and 19 March 2019.[57] In his last report, he referred to the dates on which he more recently treated the plaintiff, the last occasion being 8 January 2019. He concluded that the plaintiff was suffering from a Major Depressive Disorder and comorbid anxiety symptoms. He provided her with antidepressant medication, and referral to a psychologist, whose treatment she declined. He noted that her treatment had reached something of an impasse, which appears to have occurred because the treatment was not effective and the plaintiff and her husband had a belief that her problems were physically based, not psychiatrically based. He considered her prognosis to be poor.
[55]CB 265-267
[56]CB 295
[57]CB 296-307
45 On my reading of the opinions of the psychiatrists, it is evident that they were aware, to varying degrees, that the plaintiff had a past history of relevant medical problems. They were aware that she suffered essentially soft tissue injuries to her spine. They were aware that she was complaining of significant physical problems following the transport accident. It is clear enough to me that they all placed different emphases in arriving at their opinions where they considered that to be appropriate, and a comparison between the attacks they made on reaching a diagnosis demonstrates that difference in emphases.
46 One example of that is the opinion of Dr Jayaram, who was told by the plaintiff and her husband that she was well adjusted. I assume that to have been recorded by him in the context of her mental state. That is to be compared with the opinion of Dr Entwisle, who noted what he describes a longstanding history of pain in various parts of her body and her own assessment that she was normal before the accident. He considered that she had grossly understated her pre-existing chronic pain and associated depression.
47 One of the very serious difficulties of this application is endeavouring to create a rational summary of the psychiatric evidence because of the different emphases which the psychiatrists developed, and the different attack they made on reaching a diagnosis. Despite that difficulty, there is a consistency in the complaints made by the plaintiff to each of them. In saying that, there is also an inconsistency in what they recorded in the emphases they placed on the evidence put before them. Despite all of this, there was also a consistency in diagnosing a significant psychiatric disorder, variously described, but on my close analysis of the complaints made by the plaintiff and the techniques of examination, it would appear that the various diagnoses are based upon similar psychiatric symptoms.
48 I return to the critically important position occupied by Dr Navani. Although, Dr Navani is obviously not a psychiatrist, his close understanding of the plaintiff both before and after the transport accident enabled him to arrive at a diagnosis which is consistent with the preponderance of the opinions expressed by the psychiatrists. He was no doubt assisted in arriving at that opinion by the treatment provided by Dr Jayaram, of which he was no doubt made aware through the report of Dr Jayaram dated 16 July 2018 which was addressed to him. At the risk of being duly repetitious, I think the plaintiff’s submission that Dr Navani is the key to understanding what injuries the plaintiff suffered and the transport accident and the evolution of the psychiatric condition is true.
The Plaintiff’s consequences
49 Initially, Dr Navani considered that the plaintiff had suffered physical injuries which could be treated accordingly. He referred the plaintiff to Dr Stockman,[58] and to Dr Laska, rheumatologist.[59] Their involvement in the plaintiff’s treatment appears to have ceased in 2012. Subsequently, the plaintiff was treated by a pain specialist at the Sunshine Hospital, by physiotherapy and chiropractic treatment, and through an assessment for pain management in late 2014. She undertook a pain management course between April and September 2015.[60] The plaintiff was prescribed painkilling medication. It would appear that she continues to be treated by Dr Navani, Dr Jayaram and Dr Sharma, acupuncturist and occupational therapist. She uses Panadol Osteo, Pariet and Celebrex.[61] She is no longer using any medication to treat her psychiatric state.[62]
[58]CB 187-190
[59]CB 11-12
[60]CB 13
[61]I understand that Panadol Osteo is an analgesic and Celebrex is an anti-inflammatory. I understand that Pariet is used to reduce stomach acid.
[62]CB 325-326
50 The plaintiff swore three affidavits, on 25 January 2017,[63] 15 December 2017[64] and 26 March 2019.[65] In her last affidavit, she summarised, and brought up to date, the consequences which have plagued her since the transport accident and the evolution of her psychiatric injury:
[63]CB 9-19
[64]CB 20-22
[65]CB 324-328
· Persisting severe pain in her neck, shoulders, right arm and hand, lower back, right leg and hips.
· Her mobility is affected to the extent that she finds it difficult to sit, stand and walk for long periods of time and needs the use of a walking stick.
· She suffers other problems which are probably unrelated to the transport accident, but perhaps more related to the onset of her psychiatric injury, being discolouration of her right hand and rashes across her chest, abdomen and neck.
· Her sleep is bad.
· She has difficulty engaging in domestic activities such as chopping vegetables, cooking and cleaning, and hanging clothes on a clothes horse.
· She has difficulty undertaking self-care.
· She has lost interest in activities such as cooking and socialising with family and friends.
· She feels irritable; has a low mood; has difficulty concentrating; experiences anxiety and sometimes panic attacks; gets upset easily and is often teary; lacks motivation, and lacks interest in things which were previously part of her daily life.
· She spends a lot of time thinking about her pain and worrying.
51 Additionally, the plaintiff described her psychiatric symptoms to each of the examining psychiatrists and, of course, to Dr Navani. The short summary I have reduced from the plaintiff’s three affidavits includes much of what those psychiatrists recorded, although, some recorded the symptoms in elaborate detail and others in a shorter form.
52 Before returning to the conclusions I have reached based upon my appraisal of all of the evidence and the issues which the parties raised for my consideration, I should refer to the plaintiff’s submission that when dealing with serious injury applications under paragraph (c), the need for disentangling is not called for the reasons set out in Noori v Topaz Fine Foods Pty Ltd.[66]
[66][2018] VSCA 323
53 I am satisfied that the plaintiff suffered physical injuries in the transport accident. I am satisfied that they are the injuries which she complained about to Dr Navani when she saw him on 6 August 2010 and thereafter, on the occasions on which she sought treatment from him.
54 I am satisfied that Dr Navani is the key to understanding the nature and extent of the plaintiff’s medical problems prior to the transport accident. I have said enough about that thus far and simply repeat what I have said above.
55 I am satisfied that the diagnosis made by Dr Navani is the most persuasive of all of the medical opinions relevant to the evolution of the psychiatric injury.
56 I am satisfied that the plaintiff has suffered a major psychiatric injury which has been variously described by the medical practitioners who have been called upon to provide a diagnosis. Despite the variation in the diagnoses, I am satisfied that the plaintiff has suffered a mental or behavioural disturbance or disorder.
57 I accept the plaintiff’s evidence that she has suffered each of the consequences referred to in her affidavits and in the histories provided to the examining psychiatrists. I am satisfied that she has required treatment by Dr Navani and others for not only the physical injuries, but also the evolving psychiatric injury. I am satisfied that the psychiatric injury is a major injury with dramatic, very significant consequences for the plaintiff. I am fortified in reaching that conclusion because of the preponderance of the opinions of the examining psychiatrists of the nature, extent and gravity of the plaintiff’s psychiatric injury. I should add at this point that I reject the opinion of Dr Entwisle that the plaintiff’s presentation can be explained by a marked functional overlay and abnormal illness behaviour.
58 Lastly, I am satisfied, for all of the reasons referred to above, that the plaintiff has suffered a severe mental or severe behavioural disturbance or disorder after making the relevant comparison with like impairments, as I am required to do.
59 I will grant the plaintiff leave to commence a proceeding at common law to recover damages for the injuries that she suffered in the transport accident.
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