Hunter v TAC
[2010] VCC 469
•3 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-09-05702
| KERRY HUNTER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 April 2010 |
| DATE OF JUDGMENT: | 3 May 2010 |
| CASE MAY BE CITED AS: | Hunter v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0469 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – psychiatric impairment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC and | Ryan Legal Services Pty Ltd |
| Mr B Anderson | ||
| For the Defendant | Mr W R Middleton SC and | Solicitor to Transport Accident |
| Ms A Ryan | Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for nervous shock suffered by her arising out of a transport accident which occurred on 8 November 2005 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under section 93(17)(c) claiming “a severe long term mental or severe long term behavioural disturbance or disorder”.
4 The body function relied upon by the plaintiff in this case is a psychiatric impairment.
5 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
6 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
7 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
8 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Act, was a word of stronger force than the word “serious” where used in the Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
9 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross examined. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
10 The plaintiff is presently aged forty four, having been born on 6 August 1965. She attended Mildura Technical School until leaving during Year 9. She worked in a dry cleaning business and then found work as a seasonal fruit packer.
11 As at the said date, the plaintiff had been in a relationship with Marcus Martin (“Marcus”) for about twenty three years having met him at work. They were engaged in February 2000.
12 They were both employed by SDS Foods (“the company”). The plaintiff worked as a fruit packer, forklift driver and machine operator. She was a fulltime casual, earning $15.33 per hour. Marcus was her foreman.
13 On the said date Marcus was driving a forklift inside the company premises. The plaintiff was working with him that morning. Whilst in the shed packing avocadoes, the plaintiff remembers looking up and seeing the forklift Marcus was driving roll over (“the accident”).
14 The plaintiff thought Marcus had hit one of the supporting poles within the shed, causing his forklift to tip over. She screamed and started running towards him but a workmate, Kerry, grabbed her and walked her away from the scene.
15 Kerry rang the plaintiff’s parents, who came to be with her at the shed. The plaintiff was in shock and she needed an oxygen mask. She was told by the ambulance officer who attended the accident scene that Marcus had died.
16 At the time of his death the plaintiff and Marcus had been looking for a house to buy. Prior thereto they had not been able to live together because he was caring for his parents who were both very unwell. The plaintiff and Marcus were hoping to have a child together and she had discussed pregnancy issues with her general practitioner. Unknown to the plaintiff, Marcus had in fact arranged for them to buy a particular property and surprise her with the news.
17 Since the accident the plaintiff has struggled to cope with Marcus’ death. She misses him. She suffers from Depression, Anxiety, panic attacks and fatigue.
18 The plaintiff deposed that prior to the accident she was in a good state mentally. She had had some Depression back in 2001 and was on and off anti-depressant medication for about three years but she had completely recovered and had ceased all medication. At the time of the accident she was happy in her relationship and work. Before that time she had not received any psychological counselling or treatment.
19 In cross-examination, the plaintiff agreed that she was having some problems with her relationship with Marcus before the accident but they resolved and they were not the reason for her going to the doctor or getting tablets. She conceded that she was not in a good state mentally before the accident because of the sexual abuse by her brother at the age of twelve (“the abuse”).
20 In examination-in-chief, the plaintiff said she had nightmares every night of the accident which wake her up and make her feel really depressed, after which she starts crying. She has trouble sleeping.
21 Since the accident, the plaintiff has flashbacks two or three times a day of the accident, after which she feels terrible and then starts getting a really bad headache. She had normal headaches, not migraines before the accident.
22 The plaintiff has flashbacks to the forklift tipping over and becomes upset if she hears about other accidents. She has the sensation of Marcus lying beside her in bed and coming through her body as well. She can still hear his voice.
23 The plaintiff also suffers panic attacks, about once a week on average. When they occur, she gets really sweaty and gets a sharp chest pain. Her heart goes flat out and she has trouble breathing. On these occasions she takes Inderal medication. She has to slow down a bit and try and get rid of them.
24 The plaintiff relates her chest pain and panic to the accident. She just feels so hurt and wishes Marcus was with her every day. She gets “gut wrenched” and starts getting really tight in the chest. She has been to hospital for an ECG after experiencing chest pain.
25 In cross-examination, the plaintiff said she had not had any trouble with dizziness before the accident and she had not seen an ear, nose and throat specialist. The plaintiff was asked about a prescription of Sandomigran before the accident. The plaintiff agreed that she had dizziness a little bit before the accident but it happened only on one day.
26 The plaintiff then agreed she was sent to Mr Smith, ear, nose and throat specialist, in January 2006 with a complaint of dizziness but denied she had had many years of dizziness. She agreed she suffered with some eye symptoms but she denied she had a long history of dizziness associated with headache and eye symptoms before the accident.
27 The plaintiff said she saw Dr Eade only once about dizziness before the accident. She could not recall complaining to Dr McEvedy at the same clinic on 22 June 2005 of four episodes of dizziness, nausea, ataxia in the last two months but then said that could be right and agreed she had been prescribed Augmentin Duo Forte and Seretide.
28 The plaintiff has a poor appetite. She lacks motivation and zest for life and feels she needs counselling and medication to keep going. She has had suicidal thoughts in the past but not any more, but she still cries most nights.
29 The plaintiff continues to suffer migraines and takes Sandomigran medication every night. She occasionally suffers dizzy spells for which she takes Stemetil.
30 In cross-examination, the plaintiff said that she was not troubled by panic attacks before the accident. When asked about an attendance with Dr Eade on 25 February 2003 where he noted the plaintiff was being treated for panic attacks, the plaintiff said that she had only had a few before the accident but not as many as now. She could not explain why she had denied having panic attacks before the accident when asked earlier, and said sometimes she has a bit of a loss of memory.
31 Her pre-accident panic attacks were because of the abuse. However, she was having no problems in that regard in the time shortly before the accident.
32 The plaintiff agreed it was not true when she told Dr Walton in 2007 that she had no psychiatric history and said sometimes she forgets. She then agreed she had more than a little bit of a problem before the accident.
33 Prior to attending Dr Eade’s practice, the plaintiff had never been treated by a psychiatrist nor had ever taken anti-depressant medication.
34 Immediately after the accident the plaintiff saw Dr Eade. She also received counselling from Peter Hunt, whom she continues to see on a weekly basis. He has been helpful for her. Mainly they talk about the accident and the abuse. The plaintiff confirmed the abuse remained an issue for her and that she spends a lot of time with Mr Hunt talking about it.
35 The plaintiff feels as if she needs to continue seeing Mr Hunt weekly mainly because of the forklift accident and the sexual abuse.
36 The plaintiff was also referred to a psychiatrist, Dr Pollock, in early 2007 for further treatment, last seeing her in July 2009.
37 When asked why she started seeing Dr Pollock in 2007, the plaintiff said sometimes she felt like she wanted to end her life and she then agreed that she saw a psychiatrist on the suggestion of her solicitors. Dr Pollock helps her and she trusts her.
38 The plaintiff agreed with Dr Pollock’s comment in her recent report that the plaintiff’s symptoms had modified over time and were limited to some minor sleep disturbances, periods of sadness and distress. The plaintiff denied there had been a substantial improvement in her condition and said it was not her intention to go off anti-depressant medication.
39 The plaintiff denied she had told Dr Pollock she was proud of getting on the forklift that one day but said it was pretty confronting. She denied she was also back to driving a forklift.
40 The plaintiff misses Marcus and all the things they used to do together. They particularly enjoyed going to the horse races and on holidays together. Prior to the accident, Marcus had been a licensed bookmaker for about four years and she had worked with him on the track holding a clerk’s licence. On most weekends they went to the races in Mildura and surrounding areas, either working or watching. Their weekends were busy because Marcus loved the races and she loved being there with him.
41 The plaintiff has not been to the races recently. It has been a long time since she last went, perhaps 2008 in Mildura. She probably went to the trots once last year.
42 The plaintiff and Marcus also went on weekend social trips to Melbourne or Adelaide and went on holidays to places such as Sydney and Canberra. He had a boat and they enjoyed going boating on the river together. They also had an active social life and they did a lot of ballroom dancing together.
43 The plaintiff does not consider herself ready as yet for a further relationship. Whilst she has not met someone else, if she does she would probably not be as loving as she was to Marcus.
44 The plaintiff continues to attend weekly Salvation Army meetings and she helps with a children’s group on a Monday night and also with Sunday school. At the Salvation Army the plaintiff has been talking to her call officer about her feelings. She is not as involved in the church as she was prior to the accident.
45 In cross-examination, the plaintiff agreed she was excited about being a bridesmaid. However, she had some problems with the bridesmaid role because she wishes Marcus was still there helping her and coming to the wedding with her. It made her feel very sad and at times she cannot help her friend with wedding preparations. She and her friend then just talk and the plaintiff usually starts crying.
46 The plaintiff returned to work about a month after the accident and built up her hours on a gradual basis, getting back to fulltime work after about six to eight weeks. The company was then bought out by Sandalwood in 2006. As a result thereof, less work was available to casual workers so the plaintiff left that firm and found work at Littore Packers (“Littore”) as a casual packer on the process line.
47 The plaintiff has had periods of time off work when work at Littore has not been available. At times she has worked an eight hour a day. She gets tired and lacks energy and has problems concentrating and remembering things when she tries to work. Her ability to work is also affected by medication.
48 When she does go to work sometimes the plaintiff has a lot of feelings connected with the accident but these feelings are not enough to stop her going to work.
49 The plaintiff has not performed any work as a casual packer for Littore Packers since December 2009 because work has not been available. In July 2009 she missed some time from work when she underwent a knee replacement.
50 If there was work available at present the plaintiff would be doing it and there is nothing about her reaction to the accident that precludes her from working. She explained however, that whilst she resumed normal duties after the accident, sometimes she only lasted probably half a day and that continued for months. Sometimes she still could not work a full day.
51 Since the accident, the plaintiff has only resumed forklift driving on one day for a little while. Her supervisor asked her to drive the forklift as there was no one around. It was really hard for the plaintiff and she started crying, as did her supervisor. The plaintiff has renewed her forklift driver’s licence recently but it is not her intention to drive. She was asked to renew it just in case.
52 Besides having problems herself when driving a forklift, the plaintiff has a reaction when she sees other people driving. She gets “gut wrenched “ when she sees people driving fast and thinks that they will probably have an accident.
53 The plaintiff’s parents, with whom she lives, are dependent on her at the moment. Both parents are not really healthy. She has to help a fair bit. She sometimes cooks and she helps with the housework. She sees herself in a caring role for them.
54 The plaintiff’s father was badly injured in a car accident in September 2008. His injuries and the accident affected the plaintiff a little bit but she denied they had any effect on her accident related symptoms.
55 The plaintiff agreed that she felt a little bit better but not much. She presently takes Luvox 125 milligrams, an anti-migraine, Inderal for anxiety, and she also takes a sleeping tablet.
The Plaintiff’s Medical Evidence
56 Since April 2004, the plaintiff has been under the care of Dr Eade. She has been a patient at his practice since 1994 (“the practice’).
57 Dr Eade’s clinical notes predating August 2005 were tendered.
58 On 2 March 2001, Depression was noted and Effexor was prescribed, with a repeat prescription in April 2001, at which time Luvox was also prescribed. The prescription of Luvox was halved in September 2001 and further prescribed in November 2001 and September 2002.
59 It was noted that Depression was “ok” on 7 January 2003 and Luvox was again prescribed. On 25 February 2003, panic attacks were noted and Kalma was prescribed for anxiety. There were further prescriptions of Luvox on 20 March 2003 and in October 2003, fifty milligrams per day was prescribed.
60 Pregnancy issues were discussed on 9 February 2004. Kalma was prescribed. The plaintiff was stable on the dosage of Luvox.
61 On 2 April 2004, there was a query about the plaintiff getting married in 2005. At that stage she was on Luvox. On 24 May 2004, it was noted the plaintiff was taking Luvox one half daily:
“Did have depression and anxiety attacks. Was obvious triggers relationship and home problems which are better now and no longer depressed. Taking Luvox by taking a half on alternate days.”
62 Luvox was ceased on that examination.
63 On 19 August 2004, the plaintiff was off Luvox and quite happy. It was noted her mood was okay when off Luvox in September 2004.
64 On 22 June 2005, four episodes of dizziness, nausea and ataxia when changing direction in the last two months were noted. The plaintiff’s condition was described as normal between episodes and the reason for the visit was vertigo.
65 The plaintiff next consulted the practice on 9 November 2005, advising she had witnessed the accident the preceding day.
66 Dr Eade treated the plaintiff’s anxiety symptoms with Diazepam and Luvox and treated her sleep disturbance with Temazepan. Diazepam and Temazepan were initially prescribed in November 2005 and Luvox was commenced on 12 February 2007 and the dosage doubled on 16 April 2007.
67 Dr Eade certified the plaintiff incapable of work from 8 November to 28 November 2005 and noted despite her difficulties, to her credit, she had continued working since that time.
68 The plaintiff attended the practice twice in May, once in June and once in July 2007 complaining of low mood. She was certified as unfit for work as a consequence of Depression and Post-Traumatic Stress Disorder (“PTSD”) for three weeks in May 2007. In June, it was noted her mood was improving but still low and she was advised she could return to work from a depression and a PTSD viewpoint. The plaintiff also had back pain for which Voltaren was prescribed.
69 On attendance in July 2007, it was noted the plaintiff was stressed and under pressure because she was going to a court case arising out of her fiancé’s death.
70 Dr Eade noted an improvement in the plaintiff’s psychiatric condition since the early months of 2007 but the problems were still evident, significantly impacting on her day-to-day life and requiring ongoing treatment. He thought her condition had stabilised as of March 2008 and that she would require ongoing medication, counselling and specialist psychiatric input for the short term at least.
71 On 3 April 2008, the plaintiff reported occasional thoughts of deliberate self- harm. On 17 April 2008, there were ongoing spectrum anxiety symptoms (palpitations, shaky, short of breath) and headaches. There were still some anxiety symptoms on 8 May 2008.
72 On 19 June 2008, the plaintiff’s mood was still low and she had anxiety and panic attacks, having bad dreams about the accident.
73 On 29 September 2008, the plaintiff had an exacerbation of P.T.S.D with bad dreams and intrusive memories triggered by her father’s car accident. On 27 October 2008, the plaintiff had some anxiety exacerbation provoked by a car accident in which she was involved
74 On 12 February 2009, the plaintiff complained of palpitations. On 15 July, 2009 ongoing referral to Dr Pollock was noted. In October 2009, the plaintiff reported anxiety and chest tightness. In December 2009 and February 2010, Propranolol was prescribed for palpitations.
75 In Dr Eade’s view, the plaintiff suffered PTSD, Anxiety and Depression related to the accident. He considered there was avoidance phenomena, the plaintiff had lost interest in her usual activities and had difficulties with concentration and also sleep disturbance. She was hypervigilant in certain circumstances.
76 The plaintiff first received counselling after the accident on 8 November 2005 from Peter Hunt. He noted that she was not coping with Marcus’ death and on return to work she was reminded daily of the tragedy, her loss and grief and the trauma.
77 He noted that during the initial counselling sessions the plaintiff was clearly shaken and traumatised by the accident. Some of her initial reactions included anxiety, hopelessness, depression and a feeling of panic from the loss of her long term partner.
78 Mr Hunt noted that the plaintiff had constantly struggled to cope with work and even as of June 2007 she became panicky and scared and occasionally had nightmares that revolved around the accident. Before the accident, she had coped well with personal life and at work. As of mid 2007, the plaintiff had at times stated she was suicidal and she displayed ongoing depressive symptoms.
79 At that time, Mr Hunt thought that the plaintiff scored on the high end of severe depression and he referred her to a psychiatrist for an initial diagnosis. At times since the accident he had had grave concerns for her wellbeing and safety. The plaintiff then continued to work minimum hours even though she was in a depressive state with regard to her work, and continued to suffer with the loss.
80 Mr Hunt last reported on 30 January 2010. At that time the plaintiff still occasionally found herself panicky, scared and experiencing nightmares that revolved around the accident. These were so vivid and realistic that they woke her up. The plaintiff displayed ongoing depressive symptoms and presented with a lack of direction in her life and felt she did not cope well with ordinary issues. She had at times stated that she was suicidal but no longer had those thoughts.
81 Counselling sessions focussed around the plaintiff coping with the loss of Marcus. Mr Hunt noted that the plaintiff had lost interest in many things after the accident and therefore felt stressed working in the same environment. She had changed her workplace but continued to struggle working normal hours. He again conducted the Beck Depression Inventory with the plaintiff where she continued to score at the high end of severe depression.
82 Mr Hunt concluded that the plaintiff had begun to “feel more normal” over the time she had been attending regular counselling sessions, however she still had many times when she did not cope and needed additional support.
83 Dr Pollock, psychiatrist, first saw the plaintiff in April 2007 on referral from Dr Eade. Dr Pollock most recently reported in April 2010, having last seen the plaintiff in August 2008 and on 15 July 2009.
84 Dr Pollock noted at the last appointment the plaintiff’s symptoms appeared to have further modified over time and were limited to some minor sleep disturbance and periodic sadness and distress when reminded of the trauma and loss. The plaintiff had continued to find counselling helpful.
85 Dr Pollock noted the plaintiff was being managed by Dr Eade, who continued to prescribe anti-depressant medication and Dr Pollock advised Dr Eade this medication could be withdrawn in the future when appropriate.
86 Dr Pollock noted that correspondence from Dr Eade did not indicate the plaintiff’s improvement had been maintained in the interim period since she last saw her.
87 When she reported in March 2009, Dr Pollock noted the plaintiff had made reasonable progress over the last eight months considering the still relative acuteness of her trauma and the recent necessity of her involvement in legal proceedings against her former employer.
88 Dr Pollock considered at that time the plaintiff continued to experience some symptoms of PTSD and major depression and grief but they were tending to modify over time. Dr Pollock thought the process was likely to be ongoing for some further period of time. In her view, the plaintiff’s general outward level of function continued to be reasonable. She was able to work as a process worker depending on the availability of work. Further, she was quite engaged at her local church.
89 Dr Lester Walton, psychiatrist, first examined the plaintiff for medico-legal purposes in April 2007.
90 The plaintiff told him of the abuse but she denied having any other psychiatric history.
91 On mental status evaluation, Dr Walton thought it apparent the plaintiff attempted to present a brave face to the world. She struggled to orient herself correctly in time. Gross memorising was intact. There was no evidence of any psychotic disturbance.
92 In Dr Walton’s view, the plaintiff was suffering from what might be described as a pathological grief reaction in clinical terms, PTSD and a depressive disorder. There was a full hand of incident specific anxiety, re-experiencing phenomena and avoidance behaviour in relation to the PTSD and the depressive condition had been of suicidal intensity at times.
93 Dr Walton noted an attempt to reduce the frequency of psychological sessions had proved unsuccessful. He noted the appropriate and reasonable regime of anti-depressant medication which had not, at that stage, produced decisive benefits.
94 Dr Walton thought the plaintiff was suffering from a significant partial incapacity for work on psychiatric grounds which had been reflected in her repeated absences from work.
95 Dr Walton re-examined the plaintiff on 30 October 2008, at which time he was provided with details of the plaintiff’s psychiatric history from 2001.
96 On mental status examination, Dr Walton noted there had been no change in the plaintiff’s cognitive profile and his diagnosis remained the same. He considered her condition was stable and that further counselling and the prescription of psychotropic medication was indicated.
97 Dr Walton noted he had anticipated the plaintiff’s work capacity might improve and that that seemed to have been the case although it remained early days in terms of sustaining work as a forklift driver, which he noted was a challenging exercise for her, to say the least.
98 Dr Walton most recently examined the plaintiff on 18 March 2010. He noted that since the last examination the plaintiff had ceased treatment with Dr Pollock in August 2009 but she continued weekly counselling with Mr Hunt. Further, she continued to take Luvox.
99 Whilst the plaintiff reported ongoing anxiety, that had eased back from the intensity of panic. There was a continuing pattern of disrupted sleep of variable severity, but the nightmares continued on a close to nightly basis. The plaintiff reported an actual increase in intrusive recapitulation memories of the accident, these having been occurring twice daily. There were continuing regular headaches which occurred every few days.
100 Whilst she had not been working because work was not available, the plaintiff told Dr Walton she had been deliberately avoiding forklift driving which she found too anxiety provoking.
101 Dr Walton noted it remained the case the plaintiff had entered no new relationship and continued to reside with her parents with no contact with her brother.
102 On mental status examination, Dr Walton found there was persisting minor cognitive impairment but, again, no evidence of psychotic disturbance. He continued to diagnose the plaintiff as suffering from what was now becoming an increasingly chronic PTSD and Chronic Depressive Disorder.
103 He agreed there had been some improvement in her condition but having had the opportunity to see her on multiple occasions, it was his view such improvement had been of quite modest proportions only and her condition remained fundamentally stable.
104 Dr Walton considered the probability was that the plaintiff would be effectively unfit for duties involving forklift driving for the foreseeable future, but she was capable of alternative duties surrounding food processing.
105 Dr Epstein, psychiatrist, examined the plaintiff on 23 April 2008. The plaintiff told him of the abuse and also of her psychiatric history between 2001 and 2004.
106 On mental status examination, the plaintiff appeared well orientated to time, place and person. Her affect was restricted and she appeared depressed and mildly anxious. She had problems with perception and delusions with regard to Marcus. Her intellectual functioning and speech appeared normal and she had no obvious problems with memory or concentration. She had problems with recurrent intrusive thoughts which interfered with her capacity to deal with day-to-day matters. There was no evidence of thought disorder, delusions or hallucinations.
107 In Dr Epstein’s view, the plaintiff had developed a PTSD characterized by recurrent intrusive thoughts about the accident. She had also developed a major depressive disorder with suicidal ideation.
108 Dr Nigel Strauss, psychiatrist, examined the plaintiff on 7 January 2009. The plaintiff told him of the abuse and also that between 2001 and 2004 she had been prescribed anti-depressants by her general practitioner. She said at that time she was having some issues with her parents and she was having some problems with Marcus because he was unable to settle down. These problems improved and the plaintiff was off anti-depressants for about a year before the accident. She told Dr Strauss, whilst taking anti-depressants before the accident, she was depressed and tearful but never suicidal.
109 On mental status examination, Dr Strauss noted the plaintiff was nervous, tense and mildly depressed. She was orientated in time, place and person and memory and concentration were good. There was no evidence of any psychosis, delusions or thought disorder.
110 In Dr Strauss’s opinion, the plaintiff had improved with the elapse of time and with treatment but he noted she still required regular anti-depressants and those should continue.
111 Dr Strauss disagreed with Dr Walton’s view that the plaintiff had a significant psychiatric impairment. He thought she had mild to moderate psychiatric symptoms. He noted that she was working fulltime, could drive a forklift and saw friends and could cope with social and financial activities. He considered that at interview the plaintiff presented as someone who was mildly affected by psychiatric symptoms.
112 Dr Strauss thought the plaintiff had an unresolved grief reaction, mild chronic PTSD and that she suffered from secondary symptoms of Depression and some general anxiety symptoms. He thought she had no psychiatric incapacity for employment.
113 Dr Strauss considered that the plaintiff’s current treatment was appropriate but it might be advisable to consider less frequent visits to a psychologist, down to a fortnightly basis. However, he thought the plaintiff would need ongoing psychological treatment for another few years.
114 Dr Strauss concluded the plaintiff would be left with residual psychiatric symptoms and he thought her condition had stabilised. In his view, her prognosis must be guarded. He noted that she would never overcome her ongoing psychiatric disabilities predominantly caused by the accident. Further, the accident significantly reduced her quality of life, and he thought she should continue taking anti-depressants for at least another year or two.
Vocational Assessment
115 Margaret Leitch of Evidex carried out a vocational assessment of the plaintiff on 22 March 2010.
116 Having seen the medical reports, Ms Leitch thought the plaintiff should, for the foreseeable future, avoid work and work tasks involving a requirement for sustained concentration, mental endurance, persisting with and staying engaged with work tasks and sustained concentration.
117 Ms Leitch considered due to the effects of the plaintiff’s injury, the plaintiff did not have the capacity to return to work as a citrus processing worker and perform all of the tasks usually expected or to work consistently at the pace and level of accuracy required in a production environment.
118 Analysis of the plaintiff’s most recent employment in that regard found that whilst she may be offered opportunities to work in the occupation in the future, the plaintiff required a supportive environment where mistakes and working at a slower speed than is usual was tolerated.
119 In Ms Leitch’s view, due to the effect of her injury, the plaintiff no longer had a capacity to perform the usual duties of any other occupation for which she was qualified or had work experience.
The Defendant’s Medical Evidence
120 The plaintiff was examined by Dr Grant, psychiatrist, in April 2007.
121 The plaintiff described longstanding recurrent episodes of depression since her mid twenties. There was the abuse and a background of frustration at not being able to consummate the relationship in the way she had hoped to prior to Marcus’ death. She told Dr Grant that she had been on anti-depressants on and off since the age of twenty five because it was taking so long for she and Marcus to get married.
122 On mental status examination, affect was restricted and had a shallow quality. Thought content was normal.
123 Dr Grant did not discern any other psychiatric phenomena other than the re- experiencing of Marcus’ presence, typically at night for brief periods, which he was not keen to put too much weight on diagnostically. He considered there was no gross cognitive difficulty.
124 Dr Grant thought the plaintiff had some symptoms of PTSD in addition to recurrent symptoms of a major depressive episode. He thought the decision to refer the plaintiff to Dr Pollock was prudent and that more vigorous biological treatment would be of use to the plaintiff. He considered fortnightly psychology sessions would be adequate to support and contain her symptoms.
125 Dr Grant considered the plaintiff was clearly capable of employment in her chosen industry and prolonged breaks from work were of no service to her health. He considered the sooner she could be redeployed, the better.
126 The plaintiff was examined by Professor Ball, psychiatrist, on two occasions: initially in October 2007, and most recently in November 2008.
127 The plaintiff told Professor Ball on the initial examination of the abuse and also some relationship problems with Marcus prior to his death because time was running out for her to have children.
128 On initial examination, Professor Ball noted the plaintiff had the presentation of PTSD and there was a Major Depression and associated Anxiety.
129 On mental state examination, thought form was normal and content was morbid. The plaintiff showed some depression but was responsive. There was no pathological lability or incongruity. There was no abnormality with perception and no indication of any cognitive problems.
130 Professor Ball hesitated to say that the plaintiff’s condition had stabilised at that time. He noted there had been some improvement, especially since the early stages, and in some ways the plaintiff still rated herself severely disturbed but it had improved. He noted that although the plaintiff was somewhat vulnerable by virtue of her personal history, she had been deprived of what, although unusual in some respects, was a very supportive relationship.
131 Professor Ball re-examined the plaintiff on 30 October 2008.
132 The plaintiff told Professor Ball she was working and had managed to get back to driving the forklift but was struggling with it and had told the boss she did not like it as it reminded her too much of the accident. When asked to use the forklift she had broken down in tears and her boss tried to talk her into driving it to give her confidence.
133 Psychiatric examination was essentially the same as on the earlier occasion. With regard to perception, in a formal sense there was no abnormality but the plaintiff still had heightened arousal in associated circumstances. He noted her forgetfulness at times could be understood as related to pre-occupation and inattention.
134 Professor Ball again diagnosed PTSD with associated depression and anxiety.
135 Professor Ball thought the plaintiff’s situation had been complicated by the recent severe accident and multiple injuries her father had suffered in a car accident, which to some extent reactivated some of her symptoms.
136 The defendant tendered a number of letters from Dr Pollock to Dr Eade.
137 On 9 April 2007, Dr Pollock thanked Dr Eade for the referral of the plaintiff. At that time she thought the plaintiff had symptoms of depression and PTSD but under the circumstances was doing reasonably well and to her credit had returned to work. At that stage the plaintiff was taking one hundred milligrams of Luvox.
138 Dr Pollock wrote to Mr Hunt on 10 October 2007, when she advised that the plaintiff seemed to be proceeding through her grieving in an appropriate way. She noted the plaintiff unfortunately seemed to run into a few interpersonal problems at the church group. She anticipated the plaintiff would cope okay with Mr Hunt’s support. At that time she did not need to see the plaintiff again until early in the next year and make a decision whether the plaintiff might be able to go off anti-depressant medication.
139 Dr Pollock wrote to Ryan Maloney Anderson, solicitors, on 15 March 2008, noting a previous report to them in May 2007. Dr Pollock advised that the plaintiff had made reasonable progress over the past eight months considering the still relative acuteness of her trauma and the recent necessity of her involvement in legal proceedings. She was continuing to experience some symptoms of PTSD and major depression and grief but they were tending to modify over time. Dr Pollock thought at that stage the process was likely to be ongoing for some further period of time. In her view, the plaintiff’s general outward level of function continued to be reasonable, working and engaged at a local church. Dr Pollock found it difficult to predict how long the plaintiff would need anti-depressants.
140 On 22 August 2008, Dr Pollock wrote to Dr Eade. At that stage the plaintiff was working five to six days each week, which Dr Pollock noted the plaintiff was really enjoying. Dr Pollock mentioned that the plaintiff was also back to driving a forklift which she was very proud of as it was confronting at first. She still had some ongoing symptoms of trauma and grief but they were not severe, and she did complain of some sleep disturbance.
141 In a letter to Dr Eade dated 20 July 2009, Dr Pollock advised that from a point of view of grief and trauma, the plaintiff appeared to be continuing to improve. She noted the plaintiff even considered herself possibly ready for a new relationship. Dr Pollock made no further arrangements to see the plaintiff as things seemed to be going “okay”.
142 The defendant also tendered Dr Eade’s note of an attendance on 9 March 2007 where the plaintiff complained of poor sleep, low mood and irritability sometimes. It was noted her solicitor wanted her to see a psychiatrist.
143 Mr Smith, ear, nose and throat surgeon, wrote to Dr Eade on 17 January 2006, having seen the plaintiff whom he noted had many years of dizziness, taking the form of vertigo and associated with headache and eye symptoms. He noted her clinical picture was very typical of vestibular migraines and if she had regular attacks then he thought that she should go on some Sandomigran.
Overview
144 I found the plaintiff to be quite an unsophisticated witness who in this case was required to give evidence in relation to other particularly disturbing matters in addition to the horrifying accident itself. The plaintiff has not had an easy life and I accept that giving evidence was a stressful experience for her. Her evidence was confused at times and she in fact downplayed matters which would have assisted her case such as the effect of her father’s car accident injuries which clearly aggravated her condition as noted by Dr Eade at the time.
145 Whilst the plaintiff denied a past psychiatric history to Dr Walton, she told him of the abuse. She deposed to and informed all other examiners of her psychiatric history from 2001. Her denial of pre accident panic attacks was not in my view a significant credit issue. These had settled down prior to the accident and no medication was being prescribed in relation thereto.
146 I am satisfied that the plaintiff suffered a psychiatric injury as a result of the accident which has been diagnosed by all medical practitioners as a PTSD and by Dr Epstein and Dr Pollock as Major Depression. Dr Walton diagnosed a Chronic Depressive Disorder and Professor Ball and Dr Strauss diagnosed Depression and some general Anxiety.
147 There is no medical support for a diagnosis of a normal grief reaction not meeting a psychiatric diagnosis.
148 The plaintiff witnessed a terrifying event resulting in the death of her fiancé Marcus. From the time of the accident the plaintiff has suffered flashbacks, nightmares and panic attacks which Dr Eade noted had had a significant impact on her day to day life and required ongoing treatment.
149 Whilst the plaintiff had some psychiatric problems prior to the accident, I am satisfied that in so far as they related to her relationship with Marcus they were settled and not subject of any treatment in the year before the accident and that at the time thereof the plaintiff was not suffering any psychiatric illness. Further, she did not require any treatment for any ongoing difficulties she experienced as a result of the abuse.
150 At the time of the accident, the plaintiff was leading a full life at work and in her relationship with Marcus enjoying a range of activities such as going to the races, going on holidays and ball room dancing.
151 This life has effectively ceased since the accident. The plaintiff has not continued these activities she shared with Marcus. The plaintiff does not feel she could cope with another relationship yet and she has concerns as to how it would work out in any event. Whilst she has derived some pleasure from her bridesmaid role it is a constant reminder of the life she has missed out on and at times she is too upset to assist the bride in making preparations for the wedding.
152 Since the accident the plaintiff has had regular frightening flashbacks and nightmares. I accept the plaintiff’s evidence that these nightmares occur nightly despite her agreement in cross-examination with Dr Pollock’s description of a minor sleep disturbance.
153 The plaintiff has vivid flashbacks two to three times a week of the accident circumstances. She also has weekly panic attacks, having experienced attacks to a much more limited extent pre accident.
154 Since the accident the plaintiff has required continuing treatment in the form of counselling and anti depressant medication.
155 Whilst psychiatric treatment with Dr Pollock may have been initiated by the plaintiff’s solicitors, clearly in Dr Pollock’s view the plaintiff required this treatment and it was a course supported by Dr Eade, Dr Grant and Dr Epstein.
156 The plaintiff remains under Dr Eade’s care. He has increased the prescription of Luvox from fifty to one hundred to one hundred and twenty five milligrams and also prescribed Inderal to deal with the plaintiff’s anxiety symptoms. The plaintiff continues to undergo counselling from Mr Hunt which she finds beneficial.
157 These supportive treaters were not cross examined.
158 Whilst able to continue working after the accident, the plaintiff has experienced some difficulties. I accept that she has problems driving a forklift, a task she is required to do at times working in the fruit processing industry. She has maintained a forklift licence because she is required to. She is reminded of the accident whilst at work and when she sees others driving and has concerns as to their welfare if they are driving too fast.
159 Although Dr Pollock appeared somewhat optimistic about the plaintiff’s prognosis on most recent examination in July 2009, having been provided with recent reports from her treaters Dr Pollock in April 2010 that unfortunately those reports did not indicate that the plaintiff’s improvement had been maintained since she last saw her.
160 I accept that the plaintiff’s psychiatric condition is long term with her suffering ongoing problems for over four years,
161 Taking into account all the evidence, I am satisfied that the plaintiff has a psychiatric impairment which meets the test of “severe” as set out in Mobilio.
162 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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