Howser-Sherwell v Transport Accident Commission
[2017] VCC 1461
•13 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00592
| AMY HOWSER-SHERWELL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 25, 26 and 27 September 2017 | |
DATE OF JUDGMENT: | 13 October 2017 | |
CASE MAY BE CITED AS: | Howser-Sherwell v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1461 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – non-physical injuries alleged to have been suffered as a consequence to death of plaintiff’s brother in a transport accident – where plaintiff not involved in and not a witness to the transport accident – where plaintiff had suffered from mental health problems prior to the transport accident – whether the plaintiff’s injuries were a severe long-term mental or severe long-term behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas [2017] HCA 32; (2017) 91 ALJR 865; Katanas v Transport Accident Commission [2016] VSCA 140; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr G Clark | Ryan Legal |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On 23 July 2013, the plaintiff’s brother, Jake, was killed in a motorcycle accident in Mildura (“the accident”). The plaintiff was not personally involved in the accident nor a witness to it. She was informed by her mother of the accident and her brother’s death some hours after its occurrence.
2 The plaintiff alleges that she has suffered psychological or psychiatric injuries as a consequence of her brother’s death in that accident. She seeks the leave of this Court to issue a proceeding to recover damages in respect of her injuries.
3 The plaintiff’s right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, the plaintiff must satisfy the Court, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application, as:
“… severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 In order to succeed in her application, the plaintiff must satisfy the Court that the consequences of her injury are “serious”. In order that an injury be considered to be “serious”:
(a)The consequences of the injury must be serious to the particular applicant;
(b)Those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)The question to be asked is whether the consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as being “severe”.[2]
[2] Humphries & Anor v Poljak & Ors [1992] 2 VR 129 at 140
6 While the word “serious” as appearing in the definition of “serious injury” has been interpreted by courts as being more than “marked” or “significant “ and as being at least “very considerable”, the word “severe” is of stronger force than “serious”.[3]
[3]Humphries & Anor v Poljak & Ors (supra); Mobilio v Balliotis [1998] 3 VR 833 at 846, 834-5, 854, 858, 860-61; Transport Accident Commission v Katanas (2017) 91 ALJR 865
7 In this matter, it is conceded by the plaintiff that she had suffered from mental health issues prior to the date of the accident. I consider that those prior issues bore some similarities to the current mental or behavioural disorders from which she alleges she is currently suffering and which form the basis of her application.
8 The plaintiff alleges that, notwithstanding her pre-accident problems, her mental health issues have been aggravated as a consequence of the accident.
9 Where there has been an aggravation of a pre-existing mental or behavioural disorder as a consequence of an accident, the plaintiff bears the onus of establishing, on the balance of probabilities, that the aggravation constitutes a serious injury as defined. It is not enough for her to merely establish that she currently suffers from a serious injury.
10 In Petkovski v Galletti,[4] it was held by the majority that where a case is one of aggravation of a pre-existing condition, the Court must consider what the evidence discloses as to the prior condition of the claimant. An analysis must be made of the extent of that condition before and after the relevant injury. It is the extent of the aggravation of the condition which must amount to a serious injury and must amount to a severe long-term mental or severe long-term behavioural disturbance or disorder.
[4][1994] 1 VR 436 at 443-44
11 In order for leave to be given to the plaintiff in this matter, I must be affirmatively satisfied (the burden of proof being borne by the plaintiff), that the injury complained of is, in fact, a serious injury. That is, that the aggravation amounts to a severe, long-term mental or severe, long-term behavioural disturbance or disorder.
12 The issues associated with a Judge’s consideration as to whether a plaintiff’s condition is “severe” was considered recently in the High Court.
13 In Transport Accident Commission v Katanas,[5] the High Court said:
[5][2017] HCA 32; (2017) 91 ALJR 865
“Contrary to the appellant’s final submission, the majority’s observation that a judge would be assisted by his or her personal experience of cases which have fallen ‘on one side of the line or the other’ did not introduce a new and unexplained concept. What their Honours said was:
‘We do not doubt that the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be accounted as severe. But in our view the spectrum which the judge described was only one amongst a number of ways in which the question of severity might be approached, each of them being incomplete in itself. For instance, one might frame a spectrum, in a particular case, by reference to the accepted frequency and severity of the claimant’s symptoms (or consequences) such as flashbacks or nightmares, or by reference to the extent of inhibitions upon the claimant’s daily activities, or by reference to the extent of inhibitions upon the claimant’s occupation or further education. In each instance, a spectrum could be set up, ranging from zero to very great. But whilst each spectrum would be relevant to determination whether the statutory test was satisfied in the particular case, no one of them, by itself, would answer the critical question. In our opinion, the correct thing to do, in each case, is to first identify and next bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage [from Humphries v Poljak] cited … above. In making that value judgment, a judge must give to each identified relevant circumstance the weight which appears to be appropriate. He or she will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other.’
(emphasis added)
The point of the observation was evidently to emphasise, in previously sanctioned language, the long-recognised reality that the application of the narrative test is in the end likely to turn ‘on the opinion of a judge familiar with a range of conditions within which the instant condition occurs’ and thus upon the judge’s conclusion as to the “side of the line” on which the case may fall.”
(footnotes omitted)
14 I consider that the identification of relevant circumstances as referred to by the High Court is equally applicable to a consideration of an aggravation of a claimant’s psychiatric or mental health disorder. This will involve a comparison of the plaintiff’s pre-accident and post-accident conditions. It is for the plaintiff to put before the Court appropriate evidence as to the pre and post-accident conditions so as to satisfy the Court as to the degree or extent to which her condition has been aggravated by the accident.
15 The principal evidence regarding the plaintiff’s pre-accident condition consists of:
· The records of the Mildura Base Hospital.
· The records of the Tristar Medical Group.
· A report of Nola Cupper dated 17 July 2015.
· A report of Dr Alan Wragg dated 25 June 2015.
· Two affidavits sworn by the plaintiff on 25 November 2016 and 7 September 2017 respectively, and her viva voce evidence.
· An affidavit sworn by the plaintiff’s mother, Deborah Howser, on 15 September 2017.
16 A report from Dr Alan Wragg, a specialist consultant child psychiatrist, dated 25 June 2015, was tendered.[6] He made the following points:
[6]Exhibit “A”
(a)The plaintiff was referred to the Child and Youth Mental Health Service (“CYMHS”) at Mildura Base Hospital (“MBH”) in March 2011 (about two years before the accident) by Ms Barb O’Hara, her school counsellor. The plaintiff was then aged thirteen. Ms O’Hara had reported that the plaintiff had presented to her with:
·low mood
·suicidal ideation
·social withdrawal
·anxiety
There was no evidence from Ms O’Hara;
(b)An Intake Assessment at that time was made by mental health clinician, Tom Sutcliffe;
(c)A case review was made by a psychiatrist, Dr Alex Caracatsanis, who was director of psychiatry at the MBH;
(d)The plaintiff was diagnosed as having Generalised Anxiety and she was subsequently case-managed by a mental health nurse, Ms Nola Cupper.
(e)In April 2011, the plaintiff was noted to have physical symptoms of anxiety, and referred to Dr Wragg. Her anxiety symptoms were noted to occur when she was in crowds, and in the context of fears as to what other people might be thinking of her.
(f)Dr Wragg reviewed the plaintiff in May 2011 and diagnosed her as having Generalised Anxiety and Depression. He had a discussion with the plaintiff’s parents at that time regarding the use of anti-depressant/anti-anxiety medication. The plaintiff’s father was against the prescription of anti-depressant medication for his daughter. Notwithstanding, soon after, she was prescribed Fluoxetine (an anti-depressant and anti-anxiety medication also known by its trade name, Lovan) by Dr Caracatsanis for her Depression and Anxiety. Dr Wragg noted from the plaintiff’s clinical file that this medication had a good effect on the plaintiff’s symptoms and it was, therefore, continued indefinitely as maintenance. She was commenced on 10 milligrams of Lovan. The dosage was later increased to 20 milligrams.
17 The MBH records disclose that:
·In 2011, the plaintiff had a difficult and troubled relationship with her mother.
·Between 2011 and the accident in July 2013, the plaintiff complained on many occasions to her case manager of:
(i)Poor sleep
(ii)Poor appetite
(iii)Lack of concentration
(iv)Pessimistic thoughts
(v)Suicidal ideas
(vi)Marked academic deterioration
(vii)Labile moods and irritability at times
(viii)That she was pre-occupied and teary
(ix)That she had similar traits to her brother Jeremy who had had longstanding behavioural and emotional issues
(x)She often felt like running away from home and, on occasions, had done so. In mid-May 2011 she absconded from home and did not return for some weeks
(xi)She had, on occasions, self-harmed by cutting herself
(xii)Her moods fluctuated often, depending upon whether she had ceased to take her medication. She advised that she would cease medication because she was feeling better.
18 I consider that one indicator of her mental health immediately prior to the accident would be the medication and treatment she was receiving at that time.
19 In her first affidavit sworn on 23 November 2016, the plaintiff deposed:
“Leading up to the time of Jake’s death during 2013, I was still taking Lovan and seeing Nola Cupper, but I believe that I was going well. I had a substantial gap in treatment from Nola because she was unwell for a few months. I was going well because I finally had my own flat, I had bought a car, and I had a job.”[7]
(emphasis added).
[7]Plaintiff’s Court Book (“PCB”) 9-10
20 The plaintiff was aged fifteen at the time of the accident in July 2013.
21 In September 2016, Dr Weissman took a history from her that she had not seen Nola Cupper for a few months before Jake died and had ceased Lovan medication.[8]
[8]PCB 30-31
22 In fact, the MBH records show that the plaintiff saw Ms Cupper on:
· 19 June 2013
· 21 June 2013
· 25 June 2013
· 27 June 2013
· 3 July 2013
· 8 July 2013 (approximately two weeks before the accident).
23 Under cross-examination, the plaintiff conceded that the advice she had given to Dr Weissman that she had ceased Lovan some months before the accident was incorrect.[9]
[9]Transcript (“T”) 22
24 I consider that it is important that Ms Cupper’s clinical notes for 8 July 2013 state that the plaintiff wanted to discuss the possibility of increasing her medication because she remained anxious, although better than previously.[10]
[10]Exhibit “B”, see entry on 8 July 2013
25 I find that the plaintiff had in fact seen Ms Cupper on six occasions between mid-June and the accident on 23 July 2013. Rather than having ceased her medication in the lead up to the accident, I find that it was continuing and that the plaintiff was enquiring about increasing it.
26 The plaintiff had attended regularly at the Tristar Medical Group in Mildura from October 2012 until early 2017, at which time she moved from Mildura to Adelaide. She saw various general practitioners at that clinic. Prior to the accident, she was seen in relation to a variety of general health matters and other matters, including:
· suicidal thoughts
· panic attacks
· depression
· dizziness
· lack of sleep
· stress.
27 The records of the MBH (CYMHS) disclose numerous attendances by the plaintiff upon Ms Cupper and others between March 2011 and the accident, and afterwards, until May 2014 when she ceased attending CYMHS.
28 In 2014, Ms Cupper transferred from CYMHS to the Tristar Medical Group and has continued to see the plaintiff regularly on a private basis from then until this year. Her report dated 17 July 2015 was tendered. For reasons unexplained, she was not requested to provide a report dealing with her progress or condition between July 2015 to 2017.
29 The plaintiff continued to attend the MBH after the accident until about May 2014, after which she continued to see Ms Cupper at Tristar. The plaintiff has continued to consult with Ms Cupper until at least February 2017, when she moved to Adelaide.
30 It is not practicable or necessary for me to set out each of the clinical notes relating to those attendances by the plaintiff at the MBH or Tristar before and after the accident.
31 It is sufficient to state that I consider that the histories recorded on those attendances do not demonstrate any significant deterioration in her level of Depression, Anxiety or any other mental health problems after the accident of July 2013.
32 Rather, in my opinion, the records, when looked at as a whole, are indicative of a young person with significant mental health issues from a young age, well before July 2013. I consider that they do not point to any aggravation of the plaintiff’s mental health after the accident the consequences of which could be fairly described as “severe”.
33 I take note of the plaintiff’s affidavits and her oral evidence in Court.
34 The plaintiff’s evidence, in summary, was that she had suffered from severe symptoms of Depression and Anxiety after the accident when compared with those suffered by her before it.
35 However, there are a number of matters which cause me to be unconvinced as to the extent of the aggravation or deterioration in her condition.
36 Firstly, there are the numerous clinical notes referred to above. In particular:
· The plaintiff had had significant long-term mental health issues prior to the accident.
· The plaintiff had twice overdosed on drugs before the accident.[11]
· The plaintiff was still prescribed antidepressant medication at the time of the accident, and enquiring of Ms Cupper in relation to increasing that medication.[12]
[11]Exhibit “B”, see entry on 18 August 2011
[12]Exhibit “B”, see entry on 8 July 2013
37 Further, I consider Ms Cupper, who treated the plaintiff for some two years before the accident and for some four years after it, was a professional ideally placed to opine as to any changes in her condition and the extent of them, until 2017. Her report of July 2015 reflected her views at a time more than two years ago. It does not contain any detailed opinion addressing the decisive question in this application – namely, how did the plaintiff’s mental health condition at the current time compare with her condition before the accident? Even if she included such an opinion in her report, that opinion would have been based on findings more than two years’ old. To the extent that she did address relevant issues in her report, she opined that:
(a)The plaintiff initially had contact with the CYMHS at MBH in 2011 due to concerns expressed by her school regarding suicidal ideation and self-harm behaviours in the context of family relationship difficulties, along with her own issues with self-esteem, development of sense of self and peer relationships.
(b)The plaintiff was initially assessed by Dr Alan Wragg and Dr Santhusha Wijekoon, and she was commenced on antidepressant medication, with some benefit.
(c)Unfortunately, the plaintiff would often self-cease her medication when feeling better and then have a relapse of low mood requiring further treatment.
(d)The plaintiff’s brother had died during the period of case management with CYMHS.
(e)The passing of her brother had contributed to a major depressive episode and recommencement of medication to manage the plaintiff’s low mood.
(f)The plaintiff had described a close relationship with her brother, reporting that he was a caring and protective figure in her life, particularly as a young child, and that she had since struggled to come to terms with her loss.
(g)The plaintiff reported that she had, at times, developed suicidal thinking, although her family and her current relationship were protective factors. Her report contains no reference to any actual suicide attempts, post-accident. If there were any such attempts up to July 2015, it appears that Ms Cupper did not know of them.
(h)The plaintiff had mental health issues prior to the passing of her brother. Her main issue had been the difficulty with developing and sustaining important relationships and attachment figures.
(i)The loss of her brother had significant consequences upon the plaintiff. Her attachment to him, and her subsequent loss of that attachment, had led to further issues and complications with her ability to trust and form close relationships with others.
(j)As at the date of her report, the plaintiff had difficulties with Dysthymia and a Generalised Anxiety Disorder, which were pre-existing issues, but were exacerbated by the passing of her brother.
(k)As at July 2015, the plaintiff was generally coping well on a day-to-day basis, however continued to have fears of abandonment, anxieties about attachment, and days where her mood would deteriorate without any identifiable trigger.
(l)As at July 2015, the plaintiff was then working in full-time employment as the manager of a café and, although she was thriving in this environment, she could still become distracted with past thoughts and have difficult days.
(m)As at July 2015, Ms Cupper considered the plaintiff’s prognosis was “generally good”.[13]
[13]PCB 24
38 The plaintiff was seen by Ms Cupper on seventeen occasions after the date of her report – between July 2015 and February 2017. On most occasions, Ms Cupper reported that the plaintiff presented as bright, reactive, stable and settled in mood, and denying any suicidal thoughts or self-harm behaviours. She reported no panic attacks, delusions or hallucinations. On a number of occasions, the plaintiff had reported to Ms Cupper that she had ceased her antidepressant medication. Many of the notes referred to discussions concerning her relationships with boyfriends and problems she was having with them.
39 There was no evidence that Ms Cupper was not available to provide an up-to-date report dealing with her current condition, or with any changes relating to the views expressed in her 2015 report. I infer that she was not asked to do so.
40 On the basis of Ms Cupper’s report, I consider the aggravations referred to by her fall well short of constituting a “serious injury” as defined in the Act.
41 Further, I note that Dr Wragg, in his report of 25 June 2015, states that his last contact with the plaintiff was more than a year before the date of his report.[14] That is consistent with the notes in the MBH records indicating that Dr Wragg had seen the plaintiff on 27 March 2014 – some nine months after the accident. Dr Wragg stated that he had been told nothing about the accident at that time.[15] It follows that Dr Wragg, a specialist psychiatrist, had seen the plaintiff both before and after the accident. The plaintiff’s evidence was that she attended on him three or four times in all, but that she had not attended upon him since the accident. However, I consider the hospital records and Dr Wragg’s recollection are likely to be more accurate. Dr Wragg was apparently not requested to provide a report as to differences in her condition over that period – before and after the accident. It is surprising that, if the accident and its consequences had been thought to have been of any significance or relevance, he would not have been told of them.
[14]DCB 2
[15](Supra)
42 Further, I have noted a number of omissions of matters of relevance from the plaintiff’s affidavits and evidence-in-chief. In a claim involving her allegations of struggling every day, regular panic attacks, and avoidance of going out and mixing with people including family situations, I consider these to be of relevance. For example:
· The plaintiff failed to refer to a number of holidays taken by her in the post-accident period. In late 2015, she embarked on a two-week cruise to New Zealand with her mother, which she said she enjoyed. Also in 2015, she went on a two-week holiday to Darwin. In April 2017, she went to Victor Harbour in South Australia on holiday.
· The plaintiff failed to mention that she has owned two dogs for about a year and derives pleasure from them.
· The plaintiff has been able to attend social occasions. Her Facebook page was produced in cross-examination. It contained a photograph of her attending a wedding.
· The plaintiff failed to mention that, at midnight on 7 May 2015, she injured her foot whilst at a nightclub in Mildura and required hospital treatment.[16]
[16]Exhibit “E”, see entry on 10 May 2016
· The plaintiff has told some doctors recently of suicide attempts after the accident. The most recent of these was two years ago. She failed to tell any doctor seen in relation to this case that she had made actual attempts on her life as far back as July and also August 2011.[17]
· The plaintiff has played competitive 8-Ball (a form of billiards) since well before the accident. She has continued to play since. Post-accident, she played competitions weekly between August 2016 and January 2017, when she left Mildura, often involving considerable travel. A photograph on her Facebook page showed her in Broken Hill to where she had travelled for a weekly 8-Ball competition.
[17]Exhibit “B”, see entry on 18 August 2011
43 In 2017, the plaintiff enrolled in a business administration course, although she believes she has not done well and may not finish it. No other evidence concerning her progress or lack of progress were tendered.
44 The plaintiff has complained of sleeping problems. However, I note similar complaints were made by her prior to the accident.
45 At no time since March 2014, when I find she was seen by Dr Wragg at the MBH, has the plaintiff been referred to a psychiatrist with regard to her mental health problems. Although she has apparently been seen by Nola Cupper on many occasions up to early 2017, and on one occasion recently by a general practitioner in Adelaide (whose surname the plaintiff could not recall), there is no evidence before the Court as to the views of either concerning her current mental health state.
46 The plaintiff moved to Adelaide in early 2017 with her current partner, Brad Kooper. She lives there with him and his sister.
47 Since residing in Adelaide, the plaintiff has applied for a number of jobs and partaken in a number of job interviews. She has yet to be successful in obtaining work in Adelaide. Regrettably there are many young persons in this country in a similar position. Nevertheless, she has applied for a number of jobs, and I infer that she considers she would be able to perform them.
48 The plaintiff is currently in receipt of Centrelink benefits. There was no evidence that any doctor had certified her as being unfit to work.
49 The plaintiff has alleged she had difficulty forming and maintaining relationships. I note from the medical records and evidence that when she left school in early 2013 as a fifteen-year-old, she commenced living with her then partner, Mason, with whom she remained until late 2013. In late 2014, she formed a relationship with Dustin, with whom she remained until November 2016. Later that month, she formed a relationship with Brad, and she is still currently living with him in Adelaide. The circumstances in which the first and second of those relationships ended was not disclosed in the evidence. Although probably not central to the issues to be determined in this matter, it does not appear to me that the plaintiff has had too much difficulty forming romantic relationships of some substance. The fact that two of them have not endured would not appear to be particularly unusual in the case of a young person of her age.
50 Further, I note the plaintiff’s denial of ongoing treatment and medication up to the date of the accident notwithstanding the content of her first affidavit. As referred to above, I do not accept her oral evidence on this issue for the reasons to which I have referred.
51 In support of her case, the plaintiff principally relied on the reports of two psychiatrists who saw her on a medico-legal basis – Dr Weissman and Dr Walton.
52 Dr Weissman saw the plaintiff in September 2016 and August 2017. His reports dated 23 September 2016 and 1 August 2017 were tendered.[18]
[18]Exhibit “A”
53 At the date of his first report, Dr Weissman had been provided with the records of the MBH and of the Tristar Medical Group. He had not been provided with the 2015 reports of Ms Cupper or Dr Wragg. He was provided with Ms Cupper’s report before his second examination in August 2017.
54 In matters relating to claims based on aggravation of mental health issues, the history provided by the plaintiff, or those acting for her, is, in my opinion, crucial. Having read Dr Weissman’s reports, I am of the view that the history obtained by him is inaccurate in a number of respects.
55 In a letter from the plaintiff’s solicitors dated 12 September 2016 addressed to Dr Weissman (before his first consultation with the plaintiff), the solicitors advised him that
“[The plaintiff] has a pre-existing history of depression however in the six months prior to Jake’s death her condition was regarded as stable and she was not taking any anti-depressant medication.”[19]
(emphasis added).
[19]Exhibit “F”
56 In his first report, Dr Weissman adopts this advice, stating that “she had completely ceased anti-depressant medication at the time of [Jake’s] accident and death”.[20]
[20]PCB 32
57 I consider that this is a very important part of the history. It is particularly relevant to the analysis of the pre and post-accident condition of the plaintiff that I am required to conduct. I consider it to be an incorrect statement for the reasons stated above.
58 The solicitors further advised Dr Weissman that the plaintiff “now has difficulty dealing with customers at work preferring to assist the chef”.[21]
[21]Exhibit “F”
59 There was no evidence to this effect before the Court and I consider it is inconsistent with the report of Ms Cupper in which she opines that the plaintiff “thrives” in the environment of her work as manager of the El Pronto Café. The plaintiff was still working at the same café when she saw Dr Weissman on the first occasion.
60 The employment history obtained by Dr Weissman is not entirely correct. He recorded that she had commenced working at Coward’s Cakes two days after Jake’s death and had “buried” herself in work.[22] In fact, her evidence was that whilst at Cowards, she worked as a casual between two and five hours per day, and only a few days per week. She said her hours per week varied between ten and fifteen, or maybe twenty on occasions. She said she could have worked more hours, but extra work hours were not available.[23]
[22]PCB 28
[23]T14
61 The plaintiff’s evidence was that it was only when she commenced working for the El Pronto Café in late 2014 (nearly one and a half years after the accident) that she worked longer hours – forty to fifty hours per week.[24] She continued to do so for another two years, when she was offered a job at the Two Black Sheep Café. It appears that Dr Weissman was not told that, while working at El Pronto Cafe, she was promoted to the position of manager in charge of four to five staff members. This, I consider, was an important part of the history. It was consistent with the view of Ms Cupper that she was indeed thriving in her work.
[24]T16
62 In August 2017, Dr Weissman concluded that the plaintiff had deteriorated since he had seen her the previous year – there had been:
· an increase in her depression and emotional distress
· an increase in her passive suicidal ideation
· a loss of her work and study capacity
· a resumption in heavy alcohol use
· an increase in social isolation
· marked reduction in her interests, energy levels, motivation and drive.
63 Dr Weissman’s diagnosis was that of:
· Chronic Major Depressive Disorder, with Anxiety and agitation of severe intensity.
· Prolonged protracted, unresolved, abnormal and pathological grief reaction and complicated bereavement process.
· Chronic Post-Traumatic Stress and Anxiety Syndrome associated with traumatisation features.
· Heavy alcohol abuse, Cannabis abuse and Ecstasy abuse.[25]
[25]PCB 55
64 Dr Weissman considered these were caused directly by the accident.
65 I have noted and accept the evidence that before the accident, the plaintiff’s condition varied, and that this in large part depended upon whether she was taking her antidepressant medication. She often ceased that medication when she was feeling better, perceiving there to be no need for it.
66 When she saw Dr Weissman in August, the plaintiff was taking no medication, so it may not be surprising that her condition had deteriorated. She told him on that occasion that she was considering resuming antidepressant medication.[26]
[26]PCB 47
67 In his first report, Dr Weissman commented on her alleged overdoses post-accident.[27] His reference to them is not in the least surprising, as such overdoses would be obvious indicators of mental health problems. What is surprising is his failure to note or comment upon her pre-accident overdoses referred to in the MBH records. They refer to two overdoses of medication in the space of a fortnight, plus numerous incidents of suicidal ideation.[28] Dr Weissman made no reference to these.
[27]PCB 29
[28]Exhibit “B”, see entry on 18 August 2011
68 The same MBH records refer to complaints made by the plaintiff pre-accident of:
· poor sleep
· poor appetite
· lack of concentration
· feelings of Depression
· marked academic deterioration
· teariness
· self-inflicted wounding
· her comment that, for as long as she can remember, she has been prone to Anxiety and Depression.[29]
[29]Defendant’s Court Book (“DCB”) 9
69 These are similar to the plaintiff’s complaints of symptoms in the post-accident period. Dr Weissman made no reference to these.
70 Dr Weissman noted in August 2017 that she was drinking more alcohol than when previously seen by him – she told him she drinks two bottles of “white wine” most days of the week.[30] This is in marked contrast to her history to Dr Walton that she was consuming two to three bottles of “spirits” most nights. In any event, there are many reasons why some people turn to alcohol, and I am not satisfied that the plaintiff’s alcohol consumption is a consequence of the accident or a symptom of an aggravation of her prior condition caused by the accident. Dr Walton was told by the plaintiff that she commenced drinking alcohol when aged fourteen. Binge drinking amongst young persons is regrettably common in our community.
[30]PCB 47
71 Dr Weissman opined in September 2016 that it is possible that the plaintiff had chronic liver disease and a degree of failure “but this would need to be confirmed”. There was no evidence that she had such condition, and I consider the suggestion to be mere speculation.
72 In his first report, Dr Weissman stated that it was not clear who the plaintiff sees as a general practitioner and that this would be important to establish. In fact, he was in possession of the records of the Tristar Medical Group. Those records make it clear that from 2012 to 2017, the plaintiff had seen general practitioners from that practice on many occasions in relation to a large number of health issues including Anxiety and Depression. It is not clear to me why Dr Weissman was unaware of this. From 13 May 2014, those records also include attendances upon Nola Cupper who, by that time, was seeing the plaintiff on a private basis at that clinic. Dr Weissman appears to have been unaware of these records.
73 In his recent report, Dr Weissman states that he read all the enclosures provided to him “thoroughly”.[31] He comments on Ms Cupper’s report of 17 July 2015, noting that she is from the Tristar Medical Group. However, he makes no reference to her clinical notes relating to the numerous attendances of the plaintiff upon her at the Tristar Medical Group from May 2014 to 2017, nor to the clinical notes relating to the numerous attendances of the plaintiff upon her and others at CYMHS between 2011 and 2014.
[31]PCB 52
74 I regard Ms Cupper as being in the strongest position to express a view as to the nature and extent of any deterioration in the plaintiff’s mental health state following the accident. For reasons unexplained, she was not called upon to express such views.
75 Dr Walton saw the plaintiff in May 2016 and July 2017. He prepared four reports which were tendered.[32] Those dated 31 May 2016 and 26 July 2017 contained his more detailed opinions.
[32]Exhibit 1
76 In his report of 31 May 2016, Dr Walton sets out his understanding of the plaintiff’s pre-accident psychiatric history. It reads, in total, as follows:
“[The plaintiff] stated that for as long as she can recall she has been prone to anxiety and depression. She was inclined to attribute that to the breakdown of her parental marriage when she was four or five years old and later she found it difficult to make friends and she was bullied at school.
By the time she was in year 7 or 8 she was expressing distress by way of self-inflicted wounding and she was referred to a school counsellor.
By 2011 she had been commenced on antidepressant medication and that is an ongoing treatment, albeit with a different antidepressant.”[33]
[33]DCB 9
77 I consider that that pre-accident history grossly understates the events relevant to the plaintiff’s mental health condition prior to the accident. I appreciate that he was provided with records of the MBH (apparently up to July 2015) and of the Tristar Medical Group (apparently up to July 2015) at that time. Later, prior to his second examination in July 2017, he was also provided by the defendant with further clinical records of the Tristar Medical Group (up to 9 November 2016), and the MBH records (possibly up to July 2016).
78 Dr Walton has recently diagnosed the plaintiff as having a Major Depressive Disorder. His prognosis is now guarded. He considers the indications are that she will be left with chronic psychiatric symptoms.
79 Dr Walton made virtually no comments concerning the multiple mental health problems experienced by the plaintiff pre-accident. He has made no reference to the plaintiff’s pre-accident suicide attempts/overdoses or suicidal ideation. More particularly, he has made no reference to the various clinical notes of Ms Cupper, pre-accident or post-accident, and, in particular, to her recent clinical notes relating to attendances by the plaintiff in 2016 and 2017 which, in my view, have significant relevance to her current condition.
80 Accordingly, I consider the reports of Dr Walton are of very limited assistance to me in making the analysis and comparison required of me.
81 I consider that the clinical notes of the Tristar Medical Group (Ms Cupper and other practitioners) in recent times – 2016 and 2017 – have obvious relevance to the plaintiff’s current condition.
82 Recent clinical notes of the Tristar Medical Group read as follows:
“November 22 2016 …
Mental Health Consultation
Reports mood as agitated due to current circumstances. Has issues with relationship and reports decision to end relationship with partner. This will cause considerable personal upheaval for Amy due to accommodation issues and future plans. Discussed changes and problem solved how to manage these. Explored various options and what Amy would consider her best choices. Has ongoing issues with legal procedures following brothers [sic] death and hoping this will be dealt with soon. Despite agitation and uncertainty, Amy making future decisions and able to be proactive in supporting self.”
“January 17 2017 …
Mental Health Consultation
Presents bright and reactive in mood. States plans to move to Adelaide next Tuesday and while has some anxiety also excited about same. Reports new relationship has been going well and although is having to adjust to some differences to previous relationships reports being positive about this. Plans to continue with career in Adelaide and hopefully complete further courses and gain employment. Amy intends to travel back to Mildura regularly for family and will make appointments for when back in the area. Not currently taking medications as feels she does not need same.”
“Tuesday February 14 2017…
Mental health consultation
Reports mood as euthymic, affect reactive and congruent to conversation. Speech normal rate, tone and rhythm. Conversation logical and sequential. Has moved to Adelaide and settling into new environment. Has commenced Cert III in Business administration while not currently working. Relationships with family and friends settled and in Mildura for brief visit. Not currently taking medications and managing moods well. Left script for contraceptive pill in Adelaide and discussed with B. McKinnon who provided further script. Plans to follow up with GP on return to Adelaide for health check.”[34]
[34]Exhibit “E”
83 The reference in those notes to Mr McKinnon is to a nurse practitioner at the Tristar Medical Group who had seen the plaintiff on several occasions for a variety of reasons, including the prescription for her of antidepressant medication.
84 The Tristar Medical Group’ records disclose what I consider to be a history from 2012 (pre-accident) to 2017 of mixed reports of Depression and Anxiety, very often accompanied by disclosure that the plaintiff had ceased her antidepressant medication. Neither Dr Weissman nor Dr Walton referred to these clinical notes. I find it difficult to understand how they would not be of considerable relevance to the plaintiff’s current mental health status and to the required comparison of her pre and post-accident conditions.
85 The plaintiff submits that I should accept the diagnoses of Dr Weissman and Dr Walton as being indicative of an aggravation of her pre-accident mental health condition, which does amount to a “serious injury” as defined. I am not able to accept that submission.
86 I, of course, take into account that the reports of Dr Weissman were tendered by the plaintiff, and that he was not requested by the defendant to be available for cross-examination. Similarly, the reports of Dr Walton were tendered by the defendant. He was not required by the plaintiff to be available for cross-examination.
87 However, I am not obliged to accept the opinions of doctors merely because they were not cross-examined about their opinions.
88 This is especially so in a case like the present where I consider that the two doctors do not appear to have conducted a proper analysis as to the extent of the aggravation in the plaintiff’s mental health condition brought about by the accident. Such an analysis would inevitably require a detailed examination of her pre-accident condition, and comparison with her current condition. It would inevitably require consideration of clinical notes of past treating practitioners, clinical notes of current treating practitioners, and past and current symptoms and treatment of them. I do not consider that either Dr Weissman or Dr Walton have done so.
89 Further, I do not consider that the history provided to Dr Weissman and Dr Walton to the effect the plaintiff was barely able to leave her home in Mildura is consistent with her leaving Mildura and moving to live in Adelaide with her new partner in January 2017.
90 I note that at no time since May 2014 has the plaintiff been referred to any psychiatrist for treatment and that Ms Cupper, the person most likely to be able to draw an informed comparison between her pre and post-accident states, has not prepared a report since July 2015. Dr Wragg’s report of June 2015 is not supportive of the proposition that the death of the plaintiff’s brother had had any impact upon her pre-accident condition.
91 Affidavits sworn by Deborah Howser and Jessie Kooper were tendered by the plaintiff.[35]
[35]Exhibit “A”
92 In summary, Mrs Howser, the plaintiff’s mother, deposed that after the accident, the plaintiff’s mental state deteriorated within a few months and that she has struggled to cope.[36] There are some aspects of her affidavit which cause me some concern:
[36]PCB 18
· She deposed that, by the time of the accident, “her situation had improved a lot”.[37] I do not consider that this is consistent with the MBH clinical notes, or with the plaintiff’s request for her medication to be increased shortly prior to the accident.
[37](Supra)
· She provide scant detail of the plaintiff’s pre-accident condition. She makes no reference to the two pre-accident overdoses. It may be that Mrs Howser was not aware of them, but I think it unlikely that hospital staff would not have advised her of them. If she was unaware of them, I consider this would indicate that she had scant knowledge of the extent of the plaintiff’s problems at the time.
· She deposed that she is aware that the plaintiff had attempted suicide a few times since Jake’s death.[38] In her evidence, the plaintiff was clear that at no time had she told her mother, Ms Cupper, the hospital staff, or her fellow residents of those unsuccessful attempts.
· She made no reference to the cruise to New Zealand that she took with the plaintiff in late 2015, but described her as having become more and more like a hermit.
[38]PCB 19
93 I am not persuaded that Mrs Howser’s affidavit assists me to any large extent with the pre and post-accident comparison required of me.
94 Ms Jessie Kooper is the sister of Brad, the plaintiff’s current partner. In her affidavit, she deposed as to the differences in the plaintiff’s personality pre and post-accident.[39] Her description of the plaintiff’s condition pre-accident contains no reference to any depression or anxiety issues, to any school problems, nor any CYMHS treatment, or any suicide attempts. Her relationship appears to have been largely limited to her contact in connection with competitive 8-Ball.
[39]PCB 20-21
95 In contrast to the plaintiff’s evidence, Ms Kooper made no reference to the plaintiff continuing to play competitive 8-Ball after the accident, or to the plaintiff’s lifestyle or relationship with either Mason or Dustin, her partners prior to Brad.
96 I do not consider Ms Kooper’s evidence assists me to any large extent with the pre and post-accident comparison required of me.
97 There was no evidence from the plaintiff’s partner, Brad Kooper. He would be expected to have a closer current relationship with the plaintiff than anyone else. I consider that, in the circumstances, I am able to draw the inference that his evidence would not have assisted the plaintiff’s case.[40]
[40]Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
Conclusion
98 I have little doubt that the plaintiff has been deeply upset by the death of her brother and has been through a genuine and difficult grieving process. However, I am not satisfied that his death has been a cause of an aggravation of her pre-existing condition to the required degree. That is, I am not satisfied that the extent of such aggravation could be considered to amount to a severe long-term mental or severe long-term behavioural disturbance or disorder so as to satisfy the test laid down in Petkovski.
99 Senior Counsel for the plaintiff submitted the principles espoused in Watts v Rake[41] and Purkess v Crittenden[42] applied in these circumstances. I do not agree. I consider that the plaintiff carries the onus of establishing that there has been an aggravation in her mental health condition which, in itself, amounts to a “serious injury” as that term is defined in the Act.
[41](1960) 108 CLR 158
[42](1965) 114 CLR 164
100 I am not satisfied that the plaintiff has discharged that onus.
101 It follows that I am not satisfied that the plaintiff has suffered a “serious injury” as required under ss(6) of s93 of the Act. Accordingly, her application is dismissed.
102 I shall hear the parties in respect of costs or other ancillary orders sought.
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