Katanas v Transport Accident Commission
[2015] VCC 1156
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-01870
| MARIA KATANAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 August 2015 | |
DATE OF JUDGMENT: | 28 August 2015 | |
CASE MAY BE CITED AS: | Katanas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1156 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – various physical injuries – psychological injury in the nature of Adjustment Disorder/Major Depressive Disorder/Post-Traumatic Stress Disorder – credibility of the plaintiff – disentanglement – whether consequences “severe”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Ms M Lang | Zaparas Lawyers |
| For the Defendant | Ms R Annesley QC with Ms F Spencer | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered various physical injuries in a transport accident on 10 July 2010 (“the accident”). Initially, the application was brought in respect of both physical injury, and a psychological disorder, but at the outset of the application, Mr Morfuni, for the plaintiff, advised the matter was to proceed only in respect of psychological injury.
2 The plaintiff has been variously diagnosed with an Adjustment Disorder, Major Depressive Disorder and Post-Traumatic Stress Disorder. She claims a range of social, recreational and domestic pastimes and activities have been lost or restricted as a result of the psychological injury. She has had a range of treatment, including anti-depressant medication, together with treatment from psychologists and a psychiatrist, which has continued to date.
3 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in the accident on 10 July 2010. The application is brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff, Mrs Katanas, was the only witness called to give evidence and be cross-examined. In addition, various affidavits of herself and her daughter, medical reports and clinical notes were tendered into evidence. I shall not refer to all of the material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions set forth later in this Judgment. In particular, many of the medical reports relate to physical injury, and it is unnecessary to consider those reports in detail. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to re-visit the various relevant sections and those authorities.
Relevant background
5 Mrs Katanas was born in Greece in 1945. She was educated to Year 6 level and thereafter worked on her family’s farm until she immigrated to Australia in 1962. She married in 1964 and has two sons and a daughter, now all adults. Her husband died in 2005 from illness. She has a number of grandchildren.
6 Mrs Katanas worked as a sewing machinist over a considerable period from 1962, with time off for the birth of her children. From 1995, she looked after various of her grandchildren on a regular basis.
7 In 1998, Mrs Katanas obtained her VCE after studying part time over four years. In 2001, she completed a Diploma of Modern Greek Language. Between 2002 and 2009, she completed an arts degree. In 2004, she completed a course so that she could operate a taxi licence.
8 Mrs Katanas has an extensive medical history. In 1995, she was diagnosed with an overactive thyroid gland (Graves’ disease).[1] At various times, her symptoms have fluctuated such that she has required medication adjustment and careful monitoring. From time to time, she has received treatment from an endocrinologist. Mrs Katanas said she currently has no symptoms from her thyroid condition.[2] She continues to take the medication Neo-Mercazole.
[1]Plaintiff’s Court Book (“PCB”) 74
[2]PCB 24
9 Mrs Katanas has longstanding issues with dizziness. The first documented complaint was made in 1998 when she saw her then general practitioner, Dr Moll. Since that time, she has had several bouts of vertiginous dizziness, resulting in falls.[3] In 2012, Mrs Katanas consulted Mr Roy Taylor, an ear nose and throat specialist. Over the years, she has taken various medications.
[3]PCB 12
10 Mrs Katanas has had considerable issues with urinary tract infections and urinary incontinence. Prior to the accident, she would wear an incontinence pad when she went out.[4] In late 2012, she underwent surgery on her bladder.[5]
[4]PCB 33
[5]PCB 64
11 In 2011, Mrs Katanas was diagnosed with diverticulitis following a gastroscopy and colonoscopy.
12 More than thirty years earlier, Mrs Katanas was involved in another car accident and suffered some minor bruising. In 2001, there was a further accident. This caused some neck pain, for which she was treated by a general practitioner, Dr Nguyen.[6] There would appear to be no significant ongoing health issues from these incidents. There was another accident in 2014, when Mrs Katanas drove into the back of a caravan after her brakes failed. This would appear fairly minor.
[6]PCB 75
The accident and its consequences
13 At approximately 7:00pm on 10 July 2010, Mrs Katanas was driving on Princess Highway, Mulgrave, on her way home from her son’s house. As she entered the intersection with Springvale Road, after having stopped at a red light, another vehicle struck the driver’s side of her vehicle.
14 After the collision, she remained sitting in her vehicle in shock. She said she had severe chest pain.[7] It is unclear whether she lost consciousness. In her first affidavit, she said “everything seemed to go dark for a second”[8] and in cross-examination, she said “I don't know whether I los[t] consciousness or not … All I know is when I got hit everything went black and I thought I was gone”.[9]
[7]PCB 9
[8]PCB 9
[9]Transcript (“T”) 55, L6
15 Mrs Katanas was conveyed by ambulance to The Alfred hospital. A number of x-rays were carried out in relation to pain in her neck, chest, abdomen and left ribs. She suffered multiple rib fractures on her left side, seatbelt bruising, laceration to her left knee[10] and damage to some teeth on her lower jaw.[11] She was ultimately discharged on 14 July 2010.
[10]PCB 30
[11]PCB 9
16 The following day, Mrs Katanas attended her general practitioner, Dr Chan. She was prescribed pain medication and referred for physiotherapy. In the weeks that followed, she returned to Dr Chan on several occasions complaining variously of pain and lowered mood.[12] Significantly, on 26 October 2010, Mrs Katanas reported to Dr Chan that she had returned to 70 per cent of her pre-accident function and had resumed driving, but did so infrequently. She told Dr Chan that she wanted to wait another month before seeing a psychologist.[13]
[12]21, 26 and 27 July and 3 and 21 August 2010
[13]PCB 57
17 On 16 November 2010, Mrs Katanas told Dr Chan that she lacked confidence and felt anxious about driving. She also complained that she still had nightmares, albeit less frequently than before, and daytime thoughts of the accident.[14] She was referred to psychologist, Dr Marlies Alvarenga, whom she saw approximately monthly in 2011. At some stage, exactly when is unclear, the Transport Accident Commission (“TAC”) stopped funding sessions with Dr Alvarenga, so Mrs Katanas continued treatment privately up until mid 2014. In re-examination, she said she had resumed treatment with Dr Alvarenga approximately a month and a half ago.[15]
[14]PCB 57
[15]T135, L23
18 At an early stage in Dr Alvarenga’s treatment of Mrs Katanas, she referred her for Eye Movement Desensitization and Reprocessing (EMDR) with clinical psychologist, Dr Antony Raj. In a letter to the TAC dated 1 December 2011, Dr Alvarenga said Mrs Katanas continued to be “plagued by flashbacks of a distressing memory of being trapped in her car”[16] and she was, at that time, unable to minimise these flashbacks using cognitive behavioural therapy. Mrs Katanas attended five sessions with Dr Raj. Dr Alvarenga reported that “after seeing [Dr] Raj, Mrs Katanas expressed relief from her intrusive memory”.[17]
[16]PCB 33
[17]PCB 33
19 Throughout 2011 and 2012, Mrs Katanas continued to attend Dr Chan for a variety of neck, back, hand and knee pain associated with the accident. She underwent physiotherapy for those symptoms but stopped treatment of her neck and back as she felt it was no longer helping.[18] She also attended Dr Chan on numerous occasions for urological and urogenital issues and various other non-accident related symptoms.
[18]PCB 10
20 According to Dr Chan, on 25 July 2011, Mrs Katanas described experiencing intermittent flashbacks and an accident “de ja vu” sensation.[19] Dr Chan offered anti-depressant/anxiolytic treatment; however, she declined. During cross-examination, Mrs Katanas said she was too scared to take medication.[20] Dr Chan also referred her to Dr Zoltan Okalyi, psychiatrist, for evaluation. In cross-examination, when asked why she did not attend Dr Okalyi, Mrs Katanas said “I was terrified of psychiatrists, I was scared I was going to lose myself and end up in an asylum”.[21]
[19]PCB 60
[20]T102, L24
[21]T103, L5
21 During a consultation with Dr Chan on 11 April 2013, Mrs Katanas said she felt she needed more psychological treatment as she had developed recurrent flashbacks. She also reported that Dr Raj’s treatment had reduced the severity of her flashbacks but they returned when she drove or thought of the accident.[22] A week later, Mrs Katanas commenced taking the anti-depressant, Lovan, 20 milligrams, prescribed by Dr Chan.[23]
[22]PCB 67
[23]PCB 68
22 In 2013, Mrs Katanas commenced treatment with Associate Professor Mazumdar, psychiatrist. Mrs Katanas has seen him regularly from that time to the present. He prescribed Ativan and Pristiq, anti-depressants.[24] Mrs Katanas continues to take these medications.
[24]PCB 71
23 According to Mr Mazumdar’s report:
“Maria reported that since the accident, she has become extremely anxious, jittery, nervy and easily startled. She felt very unsafe, stopped going out altogether and became a social recluse. She became fearful of almost everything and experienced repeated flashbacks of the accident and reliving the experience with panic attacks. She also experienced nightmares of the accident of car headlights coming close to her face, looking at herself in [a] casket, etc. She was scared to even go anywhere in a car and could not attend to her household chores. Maria also reported feeling down, depressed, teary, irritable, ‘short’, losing interest in the surrounding with disturbed sleep and appetite and reduced energy, motivation and concentration.”[25]
[25]PCB 138a
24 On 15 February 2014, Mrs Katanas presented to the Emergency Department at Monash Medical Centre. A psychiatric nurse taught Mrs Katanas breathing techniques.[26] A Discharge Summary of the same date recorded:
[26]PCB 20
“Presenting problem: Worsening Nightmares since on Prestique [sic], for the last couple of months
…
History of Presenting Complaint: Worsening nightmares for the last couple of months since started on Pristiq and Lorazepam. Very upset with the nightmares as she started se[e]ing dead people in her dream, touching her with is [sic] very stressful.
…
Mental Status / Psychiatric Examination: Alert. Oriented. Very pleasant lady, mood 6/10, teary, anxious when talking about her medical problems post the accident, denies any visual/auditory hallucination. Denies any suicidal thought/ideation. Has good insight.
…
Diagnosis Post traumatic stress disorder.”[27]
[27]PCB 142
25 In October 2013, Mrs Katanas was examined by Dr David Vivian, pain specialist, in relation to her physical injuries. Dr Vivian recommended that she undertake a pain management program.[28] He noted that Mrs Katanas “was studying and doing well in subjects such as archaeology and history, before the accident. She has tried reading since, but has great trouble with this.” With regard to exercise, he said: “She goes for a walk for an hour per day, as well as cycling.”[29]
[28]PCB 129
[29]PCB 129
26 In 2014, Mrs Katanas came under the care of clinical psychologist, Dr Jane D’Abbs, as part of a pain management program. According to Dr D’Abbs’ final report:
“Mrs Katanas presented with the following stressors:
· Severe depression levels (DASS)
· Extremely severe anxiety levels (DASS)
· Moderate stress levels (DASS)
· Symptoms of PTSD including nightmares and flashbacks
· A moderate to high report persistent pain (BPI)
· Moderate levels of poor coping and acceptance
· Sleep difficulties – pain and nightmares
· Unresolved grief issues associated with her MVA and subsequent persistent pain
· Decrease in community activities of daily living (socialising) which she attributed to her fear of driving leading to reduced social support
· A decrease in her self-confidence and self esteem.”[30]
[30]PCB 154
27 Mrs Katanas attended at least seventeen counselling sessions with Dr D’Abbs. In addition, she participated in a number of group therapy sessions.[31] In terms of the effectiveness of therapy, Dr D’Abbs wrote:
“Mrs Katanas reports that the psychological input has been helpful in both understanding her persistent pain and learning new skills to help her manage her pain and resulting stressors.”[32]
[31]PCB 153
[32]PCB 155
28 Mrs Katanas said she continues to see Dr D’Abbs once a month.[33]
[33]PCB 19
29 According to Mrs Katanas’ affidavits and her evidence, she currently suffers the following psychological consequences as a result of the injuries she sustained in the accident:
· She requires continuing treatment from Dr Chan, Dr Alvarenga, Associate Professor Mazumdar and Dr D’Abbs on a regular basis
· She takes Pristiq, 150 milligrams, and Ativan, 2 milligrams daily[34]
[34]PCB 46
· She has intermittent nightmares about the accident
· She has flashbacks of the accident
· She has difficulty relaxing and feels unsafe
· She is able to drive a car, but only for short distances
· She is unable to look after her grandchildren as she did before the accident
· She has difficulty with concentration such that she is unable to read or study
· She has difficulty “organising her thoughts” and often feels confused[35]
[35]PCB 23
· Her sleep is interrupted
· She is restricted in her social pursuits and prefers to stay at home.
30 Mrs Katanas gave evidence that, before the accident, she did not have nightmares. In re-examination, she said she continues to experience nightmares relating to the accident with varying intensity, depending on how anxious she felt at the time.[36] As for the number of nightmares, she said it varies. She told the Court “… sometimes I might have two times a week, sometimes it’s one time a week, it varies, it’s not patterned”.[37] The nightmares wake her up.[38]
[36]T138 – 139
[37]PCB 139
[38]T139, L6
31 As for flashbacks of the accident, Mrs Katanas said:
“…I have many flashbacks of the accident, especially at night when I wake up and it’s me and my thoughts and it’s dark and it’s quiet, I relive the things and [it] make[s] me very anxious.”[39]
[39]T128, L28
32 Mrs Katanas gave evidence that she drove regularly before the accident and did not have a fear of driving.[40] She was unable to recall the distances she drove but said “wherever I wanted to go, I used to go”.[41] Presently, she drives “about half to 40 minutes”.[42] Mrs Katanas said she is scared of having another accident[43] and does not want to drive.[44] She drives out of necessity.[45]
[40]T138, L9
[41]T138, L6-7
[42]T138, L12 – 13
[43]T138, L18
[44]T133, L30
[45]T138, L16
33 In terms of socialising, Mrs Katanas said in cross-examination that she sees friends “every now and then”.[46] She later said:
“… [I] spend most weekends at home because I have no friends. I lost many friends because I’m too depressed to call them, too frightened to drive to see them … there are many things that I want to do and I can’t because I’m depressed, and I don’t feel like going out.”[47]
[46]T125, L3
[47]T126, L6
34 In cross-examination, Mrs Katanas said she meets her friend, Mercina, for coffee every four or five weeks[48] or thereabouts.
[48]T120, L8
35 Mrs Katanas gave evidence that she walks for approximately 45 minutes with her neighbours about four days a week. During cross-examination, she said she has been to the Greek Club “a few times”[49] since the accident. During re-examination, she said she had attended the Greek Club three times since the accident whereas before she used to go to almost every function.[50] She said:
“I was on the Committee for about ten years and I had to drop out because I just can’t socialise – haven’t got the strength to do the work.”[51]
[49]T125, L27
[50]T132, L22
[51]T132, L17-20
36 She said after the accident, the quality of her relationship with her grandchildren changed, as well as the frequency in which she sees them. She said she cannot look after her grandchildren for very long because she cannot concentrate and she gets very tired.[52]
[52]T115
37 Prior to the accident, Mrs Katanas looked after one grandchild daily.[53] Presently, she looks after Lucas, aged eleven, after school most Thursdays. He stays overnight to keep her company.[54] The other grandchildren drop by from time to time. On occasion, Mrs Katanas will mind some of the grandchildren for a few hours while the others go to soccer practice. She said that does not occur very often.[55] She only drives the grandchildren locally.[56]
[53]T134, L12
[54]T115, L25
[55]T116, L18
[56]T23, L5
38 Three of the grandchildren participate in Greek dancing. With assistance over three months, Mrs Katanas made costumes for them to wear at Greek dancing.[57] She found this activity difficult because of her neck and an issue with concentration.[58] Once a year, there is a Greek dancing concert held at Moorabbin. She attends these concerts when her grandchildren are performing.[59] Mrs Katanas has attended school assemblies once or twice[60] and watches her granddaughters attend Greek dancing “a couple times a year”.[61]
[57]T117
[58]T117, L17
[59]T117, L25
[60]T117, L1
[61]T117, L29
39 On approximately ten or twelve occasions in 2014, Mrs Katanas attended her grandson’s school class to listen to the children practice reading. She would stay for 40 to 45 minutes. In summary, she did not have the time for this activity with all her doctors’ appointments and did not always feel like going.[62] In 2015, she attended around four or five times.[63]
[62]T99, L21 – 27
[63]T99, L16
40 Ms Annesley submitted that the alleged changes in Mrs Katanas’ involvement with her grandchildren is reflective of a normal picture of a grandmother and growing children.
41 Mrs Katanas lives independently. She does her own shopping,[64] basic chores and gardening.[65] She cooks simple things.[66] She relies on her children to assist with the more strenuous tasks such as vacuuming, cleaning windows, mopping and bathroom cleaning.[67]
[64]T114, L18
[65]PCB 22, paragraph 21
[66]PCB 22, paragraph 21
[67]PCB 22, paragraph 21
42 Mrs Katanas says she has difficulty reading, concentrating and consolidating her thoughts. In relation to reading, she said she used to read “lots”[68] prior to the accident. In cross-examination, she conceded that part of her difficulty with reading is from neck pain. She went on to say:
“… I can’t concentrate on the words. I read but not for very long … I can’t comprehend … what I read.”[69]
[68]T137, L16
[69]T137, L22-27
43 Mrs Katanas claims to have difficulty with cooking because of concentration. It was put to her that her difficulty with cooking was because of her physical conditions. Mrs Katanas explained:
“My mind is not altogether – it’s not the same since the accident. My mind – my concentration, my memory is not the same.”[70]
[70]T84, L21-24
44 In her final affidavit, Mrs Katanas said:
“One of the worst consequences of the accident to me is losing the ability to organise my thoughts. I often feel confused about where I am and what I am doing. … .”[71]
[71]PCB 23, paragraph 25
45 Mrs Katanas owns residential investment properties – two houses and two units in Chelsea which are managed by an agent. From time to time, she visits those properties. She said, “I don’t go very often”.[72] Before the accident, Mrs Katanas said she managed the properties herself, “… I used to go down and rent them and all that but after [the accident] I gave up”.[73] If there are issues with the properties, Mrs Katanas deals with the agent over the telephone.[74]
[72]T130, L5
[73]T131, L11 – 13
[74]T130, L7
46 Mrs Katanas still owns a taxi licence. The taxi is managed by Black Cabs. In relation to her degree of involvement in the taxi, Mrs Katanas said:
“[Black Cabs] do all the work, they do all the contracts, everything, and they put the money in my account in the bank. Every month I check whether [the money is] in, that’s all I do. There’s no responsibility whatsoever.”[75]
[75]T130, L22 – 26
47 Mrs Katanas’ daughter swore an affidavit which generally supported Mrs Katanas as to the consequences she claims to have suffered.
Medical opinions
48 Dr Chan, Mrs Katanas’ long-term general practitioner, provided a comprehensively detailed report of her extensive medical history.[76] I found this report helpful, particularly with respect to Mrs Katanas’ physical injuries from the accident and other health conditions. I note that Dr Chan considered Mrs Katanas to be “an intelligent, diligent lady with good insight and communication skills”.[77]
[76]PCB 84
[77]PCB 84
49 In a letter to the TAC dated 17 June 2014, Dr Chan opined that Mrs Katanas suffers Post-Traumatic Stress Disorder following the accident.[78] She considered that Mrs Katanas recovered well after the passing of her husband.
[78]PCB 120
50 With regard to anxiety in 1993 and 1995, Dr Chan attributed those symptoms to Mrs Katanas’ thyroid condition, and remarked her “anxiety was overwhelming and dysfunctional following her [motorcar accident]”.[79]
[79]PCB 120
51 Of significance, Dr Chan wrote:
“It is difficult for me to accurately evaluate the significance of her multitude of symptoms with respect to both her car accidents, even after studying her almost 3 decades of medical history, which date back to 2nd March 1984 when she first attended as a patient of Dr Ching Sing Ling.”[80]
[80]PCB 84
52 In terms of prognosis, Dr Chan wrote:
“I do not think her symptoms have stabilized and I cannot predict when or if these will stabilize. Nor am I able to predict her prognosis or anticipated period of incapacity. Given the chronicity and worsening of her symptoms, I do not anticipate any improvement soon.”[81]
[81]PCB 84
53 In a letter dated 21 April 2015 to Zaparas Lawyers, Dr Chan confirmed that her clinical impressions and opinions remained the same since her earlier report which I have referred to above.[82]
[82]PCB 36
54 Dr Alvarenga, the treating psychologist, provided three reports. In a report dated 16 March 2012, Dr Alvarenga noted that Mrs Katanas described shock and horror at being trapped in the wreckage of her car. At the initial consultation, Mrs Katanas stated she was fearful of driving and emotionally debilitated by her physical injuries. She also described experiencing flashbacks of the accident on a daily basis, and nightmares from time to time.[83]
[83]PCB 36
55 Dr Alvarenga said she suffered Post-Traumatic Stress Disorder. She observed that Mrs Katanas also met the criteria for a Major Depressive Disorder.[84]
[84]PCB 39
56 Dr Alvarenga made the following further comments:
“Mrs Katanas responded well to therapy. She dealt with most of her anxiety and depressive symptoms with me; however, she had to see an EMDR specialist to deal with completely extinguishing her traumatic flashbacks. Psychologically, Mrs Katanas is now back to pretty much a normal life. … .[85]
…
Psychologically, Mrs Katanas underwent severe distress for a period of twelve months as a result of her accident and injuries. She demonstrated a tenacious attitude to assist herself to overcome many of her issues. What complicated her recovery was the association of the feelings she experienced in the accident causing a re-emergence of the feelings she endured when her husband passed away. Mrs Katanas might need further assistance to deal with her husband’s death and her feelings associated with it.
…
Mrs Katanas has responded very well to treatment. As time goes on, it is expected that she will make a complete psychological recovery from her experience. … .”[86]
[85]PCB 40
[86]PCB 40
57 Dr Alvarenga provided the same diagnosis of Post-Traumatic Stress Disorder in a report dated 24 February 2014. She noted that Mrs Katanas’ psychological symptoms “have not improved markedly”.[87]
[87]PCB 50
58 With regard to prognosis, Dr Alvarenga concluded:
“… it seems unlikely that Mrs Katanas will ever regain her pre-injury level of functioning. However, with psychotherapy her mood, sense of safety and stress management is likely to improve. I also believe that, in time, she will be able to overcome her trauma. … .”[88]
[88]PCB 51
59 There is a significant discrepancy between the reports of Dr Alvarenga of 16 March 2012 and 24 February 2014. As can be seen above, in the first report, Dr Alvarenga noted Mrs Katanas had responded well to treatment, had returned to pretty much a normal life, had been treated such that her traumatic flashbacks were reduced and the remnants of her anxiety were managed by counselling. The second report is significantly more pessimistic. Although stating that in time, Dr Alvarenga thought Mrs Katanas would overcome her trauma, she noted Mrs Katanas was still suffering from moderate to severe depression and anxiety, increasing mental anguish and diminished quality of life. She said she would never return to her pre-injury level of functioning. There is little explanation as to the reason for this change of view. It may possibly be explained by the fact that Mrs Katanas’ symptoms did not resolve as predicted, but I have some reservations about the opinion of Dr Alvarenga given the real absence of a comprehensive explanation as to her change of views.
60 Dr Raj provided a brief report dated 27 July 2012. He diagnosed Mrs Katanas with Post-Traumatic Stress Disorder.[89] With regard to her quality of life, he said:
“… Maria’s quality of life has diminished due to injuries sustained as a result of the transport accident: she reported, ‘I lost my independence’ and felt fragile and insecure and had decreased self-confidence.”[90]
[89]PCB 53c
[90]PCB 53c
61 I found Dr Raj’s report to be of limited assistance due to its brevity, the short period of treatment and the age of the report.
62 Associate Professor Mazumdar, psychiatrist, furnished two almost identical reports.[91] Under the heading ‘Diagnosis’, he concluded that Mrs Katanas suffers Major Depressive Disorder and Post-Traumatic Disorder. In terms of prognosis, he said:
[91]First report dated 12 February 2014 (PCB 135) and second report dated 13 April 2015 (PCB 138)
“I am guarded about Maria’s prognosis for the following reasons:
1. The condition has reached a chronic state of approximately 4 years duration.
2. The treatment response is luke warm and her condition is becoming treatment resistant.
3. Inadequate resolution of her PTSD symptoms.
4. Gradual reducing psychological plasticity with aging was reducing copying [sic] skills.
5. Widow status and consequent loneliness.”
63 Ms Annesley submitted that the identical nature of the reports suggests there has been no updating of Mrs Katanas’ condition. I infer that to mean that the view expressed by Associate Professor Mazumdar should not therefore be taken as current. To some extent, I agree with that proposition, although the first report was written in only February 2014.
64 Associate Professor Mazumdar said Mrs Katanas’ symptoms included a perpetual state of sadness and depression, inability to enjoy life, inability to drive a car without anxiety and severe anxiety. He said she could not attend her household chores as before. He said:
“The injury has not stabilised as yet and is going to take a long time due to the chronicity of her illness. The anticipated date of stabilisation cannot be commented upon at this stage of treatment and it may go for an indefinite period of time.”[92]
[92]PCB 140 – 141
65 Dr D’Abbs, clinical psychologist, diagnosed Mrs Katanas with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and symptoms of Post-Traumatic Stress Disorder.[93] Dr D’Abbs considered that:
“… it is likely that she will continue to experience ongoing depression, anxiety as well as symptoms of PTSD (images, dreams and flashbacks of her accident, avoidance of cues which act as reminders of her accident, social withdrawal, concentration and memory issues, disturbed sleep and hypervigilance) to some degree indefinitely. Hopefully the intensity of these symptoms will be ameliorated somewhat when the ligation process is complete and she is no longer faced with having to revisit and narrate her account of the accident and subsequent trauma again and again as she is currently having to do.”[94]
[93]PCB 156
[94]PCB 155
66 At the request of her solicitors, Mrs Katanas attended Dr Paul Kornan, psychiatrist, in 2012, 2014 and 2015 for medico-legal assessments.
67In Dr Kornan’s first report of 2012, under the heading ‘Daily Activities’, he recorded:
“I used to get up at nine, but now three times a week I am getting up at seven thirty, and going for a walk with the neighbours. I have breakfast. I look after the house, and the garden. I go shopping. I help the children. I do the cooking, and go to the supermarket. … .”[95]
[95]PCB 160
68 In Dr Kornan’s second report of 2014, under the same heading, he recorded:
“I would get up at seven thirty. By the end of this month, I will be going for a walk for an hour with these two ladies. I have breakfast. I feed the bird. There can be s doctor’s appointment, and I drive the car local, slowly. I do the shopping, but I can’t manage a full trolley ... I can’t do the vacuum cleaning … I clean the windows, and blinds. I sweep the floor with a broom … I want to be independent. My children come very often … .”[96]
[96]PCB 170
69 In Dr Kornan’s final report of 2015, he recorded:
“Ms Katanas would get up at half past seven in the morning, and go for a walk for three-quarters of an hour. She would come back, and do some exercises. After that, Ms Katanas would go into the garden, and try and do what she could. It would then be time for lunch. On Tuesdays, her nine year old grandson liked to come to her place, and stay with her. Sometimes, Ms Katanas would go shopping, and because she was slow, it took a long time to get everything ready. Sometimes, she would go to visit a friend in Clayton, which was about a ten minute drive away.”[97]
[97]PCB 179
70 Mrs Katanas was cross-examined on the daily activities recorded by Dr Kornan. Ms Annesley submitted that they consistently record a picture of a woman who is active, has maintained her home and her independence and who keeps a routine. I agree with that proposition generally.
71 Dr Kornan diagnosed Mrs Katanas with Post-Traumatic Stress Disorder, Adjustment Disorder with Mixed Anxiety and Depressed Mood and a specific phobia of being involved in another car accident.[98] He concluded that her prognosis is poor.[99]
[98]PCB 181
[99]PCB 183
72 Mrs Katanas was examined in 2013 by Associate Professor George Mendelson, consultant psychiatrist, at the request of the solicitors for the TAC. He expressed the following opinion:
“Based on the history given to me by Mrs Katanas, her account of her current symptoms, the information in the documents that I received from your office, and my observations on mental status examination I consider that in retrospect the most appropriate psychiatric diagnosis is that of an Adjustment disorder: Mixed anxiety and depressive reaction … This has been secondary to the ongoing physical complaints she attributes to physical injuries sustained at the time of the motor vehicle accident on 10 July 2010, in association with the pre-existing and ongoing medical problems as described in the documents that I received from your office. I have also commented that in my view Mrs Katanas has experienced manifestations of posttraumatic anxiety albeit in my opinion these symptoms were due to an understandable psychological reaction to having been involved in such an accident that did cause physical injuries and that there has been no indication of a specific diagnosable mental disorder, such as Posttraumatic Stress Disorder, arising as the direct result of the accident.”[100]
[100]DCB 14
73 Dr Natalie Krapivensky, consultant psychiatrist, examined Mrs Katanas for the TAC in March 2015. She diagnosed Mrs Katanas with a Major Depressive Disorder. Having reviewed Associate Professor Mendelson’s report, Dr Krapivensky agreed with his comments, and said:
“… I do not see sufficient clinical basis for the diagnosis of a posttraumatic stress disorder.”[101]
[101]DCB 38
74 Dr Krapivensky reported that Mrs Katanas requires ongoing treatment with antidepressant medication.
75 In terms of causation, Dr Krapivensky said:
“… her current psychiatric illness is partly contributed to by the accident …”.[102]
[102]DCB 40
The credibility of the Plaintiff
76 Ms Annesley submitted I ought to have significant reservations about the plaintiff’s credibility. She submitted Ms Katanas was non-responsive in answers to questions in cross-examination and prevaricated in the course of her evidence. Largely, I accept this submission.
77 I found Mrs Katanas to be an unsatisfactory witness. She did refuse to answer questions directly put in cross-examination. She regularly denied the history given to various doctors and then sought to explain them away when presented with what the reports recorded. Examples of this include:
· In cross-examination, Mrs Katanas said that she was in very good physical and mental health prior to the accident.[103] There was passing reference in her affidavits to a number of physical problems. However, a careful reading of the report of the general practitioner, Dr Chan, shows Mrs Katanas had a very extensive history of, in particular, physical health issues. The physical conditions included dizziness, for which she received considerable treatment and specialist referral; vertigo; neck pain; amenorrhoea; chest pain; hypertension; Graves’ disease, with relapses in 1990 and 2005, requiring treatment and medication; dyspnoea; adverse reaction to various medication; diverticulitis; bladder problems, with repeated urinary tract infections and incontinence. There is also reference in the general practitioner’s report to complaints of stress and anxiety.[104]
[103]T20, L1 – 11
[104]PCB 73 – 79
· The evidence as to the extent to which she was able to continue driving was evasive.[105]
[105]T22 – 23
· In evidence, a motor vehicle accident of 2001 was put to Mrs Katanas and it was suggested she hurt her neck. She said she could not recall hurting her neck, nor going to see her general practitioner. She said she had forgotten about that accident. According to the report of Dr Chan, she complained to another doctor at the clinic of a sore neck. X-rays were arranged. Four months later, she again attended the clinic saying that her neck pain had improved but was not resolved. While I accept that accident did not result in significant symptoms, it is difficult to understand that she could not recall seeing a doctor nor receiving any treatment.
· Her evidence about whether she lost consciousness in the accident, and whether she was trapped in the wreckage, and needed emergency services to free her, was unimpressive.[106]
[106]T60 – 61
· She said that in August 2010, it was “impossible” that she could have gone shopping with her daughter for three hours,[107] yet that is the clear history given to Dr Chan.[108]
[107]T68, L15
[108]PCB 56
· She denied that by October 2010 she was back to 70 per cent of her capacities as before the accident,[109] yet that is the history again given to Dr Chan.[110]
[109]T70, L30
[110]PCB 57
· Her evidence about whether she was able to drive by herself to Oakleigh and Chelsea was evasive.[111] Again, that was the history provided to Dr Chan.[112]
[111]T71
[112]PCB 57
· According to a clinical note from a physiotherapist,[113] by January 2011, she is recorded as saying that she was then able to cook and clean for herself and able to return to driving one to two days per week, although still scared. Her evidence to explain this was unsatisfactory.[114]
[113]DCB 62
[114]T73
· Likewise, her evidence about the extent to which she was able to walk with friends.[115]
· In addresses, Ms Annesley referred to the plaintiff’s unresponsiveness and prevarication in the course of various aspects of her cross-examination. Generally, I accept those submissions.[116]
[115]T75 – 76
[116]T145 – 146
78 None of these matters looked at individually or together lead me to the view that I should reject Mrs Katanas’ evidence about the effect upon her of the accident, but it does cause me to have reservations about the extent to which her psychological symptoms have impacted upon her life. She did not answer questions in the manner I would expect of an honest witness. She sought to argue and prevaricate regularly when matters were clearly put to her.
Conclusions
79 Dr Chan, the general practitioner, Dr Alvarenga, the treating psychologist, and Associate Professor Mazumdar are all treating practitioners. Their opinions need to be considered carefully, and taken into account as to the impact of the accident upon Mrs Katanas’ psychological health. I accept their opinions that Mrs Katanas suffered Post-Traumatic Stress Disorder and either a Major Depressive Disorder, or an Adjustment Disorder, following the accident. Their reports refer to a range psychological symptoms of which the plaintiff complained.
80 It was put by Ms Annesley that as a result of Mrs Katanas’ various physical health issues and the protracted illness and then death of her husband, that these, of themselves, caused psychological problems and in part at least, are causally related to her current symptoms. Thus a disentangling exercise is required.
81 While, as Dr Chan said, it is difficult to precisely evaluate the cause of Mrs Katanas’ current psychological state given her multitude of physical symptoms, the various motor vehicle accidents and the death of her husband, nonetheless, in my view, the transport accident of July 2010 is primarily responsible for her current state. In particular, many of the symptoms relate to the happening of the event, including nightmares and flashbacks. Further, as was pointed out by Mr Morfuni, Mrs Katanas was able to function well before the transport accident, including undertake a range of studies and care for herself and her grandchildren. That situation changed after 2010. I do not see that there is any significant disentangling exercise to be undertaken. I am satisfied that the plaintiff’s current psychological symptoms are substantially related to the accident.[117]
[117]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs 20 – 23
82 The real issue to be determined in this application is, given the psychological symptoms and consequences which I am satisfied (given the reservations I have in respect of Mrs Katanas’ credibility) she suffered as a result of the accident, do they meet the test for “severe” injury as prescribed by the Act. The word “severe” is a word of greater force and indicates a more significant injury and consequences are required to meet the test under sub-paragraph (c) as compared to sub-paragraph (a).[118] In order to satisfy the test posed in ss(c), the consequences arising from a transport accident must be more substantial than the test posed under ss(a); that is, that they must be more than “very considerable” when a comparison is made with other cases in the possible range of impairments. Thus, consideration must be given to the vast array of mental disorders which may be encountered following a transport accident. At one end of the spectrum is mild anxiety as a result of trauma, easily overcome without medical intervention. At the other end of the spectrum are those disorders which provoke the most extreme symptoms and consequences, including psychoses, admission to psychiatric hospitals as an inpatient, delusional beliefs and thoughts, suicidal ideation and suicide attempts. Such conditions require extensive treatment and medication. It follows that for a mental disorder to be described as being “severe”, it is at the upper echelon of those disorders in the possible range.
[118]See Noonan v State of Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833
83 I accept Ms Katanas suffers a range of symptoms arising out of the accident. These symptoms include flashbacks and nightmares – although these seem to have been, in part at least, effectively treated – fear of driving, loss of confidence, stress and anxiety and an inability to concentrate and order her thoughts. Of significance to Mrs Katanas is that all of this has prevented her undertaking any ongoing studies which she was successfully able to do prior to the accident. I accept this is a consequence which is lost to her.
84 I further accept that, to some extent, she has difficulty sleeping and is not able to look after her grandchildren as she did before. All of these symptoms have required considerable psychological treatment from the general practitioner, Dr Alvarenga, and more recently, Associate Professor Mazumdar, and the prescription of antidepressant medication. From the reports, it is likely Mrs Katanas will require ongoing treatment and medication into the foreseeable future.
85 However, as earlier stated, I have some reservations about Mrs Katanas’ description of her symptoms and the effect upon her of the diagnosed psychological condition. I do not accept her condition is as extreme as she would have it. Of importance, in my view, is that Mrs Katanas has retained the following capacities notwithstanding her symptoms:
· She lives independently and is able to undertake most of her usual domestic tasks, including cooking, lighter cleaning and shopping.
· She is able to drive a car, albeit for short distances, and with some fear.
· She is able to look after her grandchildren, in particular, has a grandchild who stays overnight once a week, although not to the extent as before.
· She is involved with her grandchildren and their activities, including Greek dancing and costume making, and helping at their school, although not as often as before.
· While her social life is more restricted, she still walks several days a week with friends and has some involvement in other activities, including a Greek social club.
· She is able to manage, with the assistance of agents, a number of investment properties, and a taxi licence. While I accept that most of the day-to-day administrative work is conducted by those agents, nonetheless, many of the major decisions are made by her.
· While she has received considerable treatment and medication, she has not been an inpatient in any psychiatric institution (save for one attendance at an Emergency Department) nor suffered the more extreme symptoms of psychological trauma as described above.
86 Balancing on the one hand, the extent to which I accept Mrs Katanas has suffered psychological consequences, and on the other, the extent to which she has been able to maintain her involvement in social, recreational and domestic matters, I am not satisfied that she meets the requisite statutory test. In essence, I am not satisfied the mental disorder from which she suffers may be described are “severe”.
87 As a result, her application fails.
88 I shall make consequent orders and orders as to costs.
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