Kaya v TAC
[2011] VCC 855
•5 July, 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-01108
| SERAP KAYA | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | Cohen |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 - 14 April 2011 |
| DATE OF JUDGMENT: | 5 July, 2011 |
| CASE MAY BE CITED AS: | Kaya v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 855 |
REASONS FOR JUDGMENT
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Catchwords: Serous Injury application; whether plaintiff satisfies test for “severe long-term mental or behavioural disturbance or disorder”; subsequent distressing event; whether transport accident continues to be material cause of ongoing psychological condition; s 93 Transport Accident Act 1986.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Riordan | Zaparas Lawyers |
| Ms N Wolski | ||
| For the Defendant | Mr D Brookes SC | TAC |
| Ms D Galbally | ||
| HER HONOUR: |
1 On 1 March 2006, Mrs Serap Kaya was hit by a motorcycle when alighting from a tram. She cannot bring a claim for damages in respect of injuries resulting from that transport accident unless she establishes pursuant to section 93 of the Transport Accident Act 1986 (“the Act”) that she suffered a serious injury. She applies to the court for leave under s 93(4)(d) to bring such a claim.
2 Mrs Kaya relies on part (c) of the definition of “serious injury”, claiming to have suffered a severe long-term mental or behavioural disturbance or disorder. To satisfy that part of the definition, she must prove that the consequences of the injury to her, when judged by comparison with other cases, must be able fairly to be described as “severe”, which is a stronger word than and connotes something more than “serious”[1], when “serious” means what can fairly be described at least as “very considerable” and certainly more than “significant” or “marked”[2].
[1] Mobilio v Balliotis [1998] 3 VR 833, 846.
[2] Humphries v Poljak [1992] 2 VR 129 at 140.
3 The defendant argues:
(i) That the plaintiff is not suffering from a severe long-term mental or behavioural disturbance or disorder; (ii) Alternatively, if it is found that she is suffering from a severe long-term mental or behavioural disturbance or disorder: (x) that condition does not result from the transport accident, but from other stressors in her life, in particular a still birth in 2007; and
(y)
in any event, the plaintiff is not psychologically incapacitated for work.
4 The evidence consisted of the documents set out in the attached schedule, and the oral evidence of seven witnesses required by the defendant to attend for cross-examination, and one more. These were the plaintiff, her husband, her current and former treating psychologists, Ms Serpil Ozturk and Ms Semra Durmaz, her general practitioner, Dr Baglar, and consultant psychiatrists, Dr Nigel Strauss and Dr Paul Kornan, who had provided medico-legal opinions on her condition for this case. Further, during the course of the hearing an application was made, and granted, to recall the plaintiff, which led to the calling as a witness of Ms Claudia Boca, who was the interpreter for Mrs Kaya when she gave her evidence, and had accompanied her from the court. That evidence will be discussed later in this judgment.
5 As in most applications of this type, the credibility and reliability of the plaintiff’s own evidence is very important because not only the Court, but also doctors whose opinions form part of the evidence, are heavily dependant upon the plaintiff’s account of the timing and extent of symptoms and their impact on the plaintiff’s life.
6 In this case my assessment of the plaintiff’s credibility and reliability as a witness takes into account the inevitable difficulties of assessing these aspects when assessing evidence of a witness through an interpreter[3]. It was my impression that the plaintiff was genuinely trying to give accurate and truthful answers to the questions asked. She made concessions where appropriate and did not appear to deliberately exaggerate her symptoms.
[3] Although attending a total of 520 hours of English classes before and after the accident, Mrs Kaya remained heavily reliant on an interpreter to give evidence and follow the proceedings in her case.
Plaintiff’s Background
7 Mrs Kaya is now aged 31. She lives with her husband and their two year old son. Her older sister and her family live nearby, but the rest of their extended family lives in Turkey.
8 Mrs Kaya was born in Turkey where she attended school until age 13. She then helped her family tobacco-growing. In 2003 she married Mr Duran Kaya who was visiting Turkey from Melbourne. She moved to Melbourne in September 2003 after their marriage. Her husband is Turkish-born, had lived in Australia for some 10 years, and was a friend of her older sister and her husband who lived in Melbourne.
9 For the first year after arriving in Australia, Mrs Kaya and her husband lived with her sister’s family. They then set up their own home nearby, and enjoyed selecting furniture and making plans for their home. Although both expected her to perform a traditional role of wife and home maker, and to have and raise children, they did not intend her to be housebound, and she had set about establishing herself as able to go out and operate in the community independently from her husband.
10 Mr Kaya has worked for many years in a carpark in the city, and the plaintiff used to visit him there to bring him lunch. She would travel by public transport, and was learning her way around the city. Apparently his employer offered her work there if she learnt English. She started English classes in 2005.
11 Both she and her husband say that they had hoped that she would be able to work where he did, and that would assist with income to pay off their home, and release him from such long hours to be able to spend more time with his family. As they intended her to have children as soon as possible, I am not satisfied that she was likely to be engaged in paid employment for income for any significant time since the accident, or for the next few years, but I accept that it was a possibility.
12 Mr and Mrs Kaya had planned to have children, and when that did not happen promptly she commenced on an IVF program. This commenced before the transport accident, and she subsequently became pregnant, but the baby was stillborn at 37 weeks in June 2007. About a year later she became pregnant again, and gave birth to a healthy son in January 2009.
13 Mrs Kaya had commenced English classes in 2005, attending four days per week for three hours. As a new immigrant she was entitled to 520 hours of English classes which she was taking at AMES in Coburg[4]. She had completed approximately 190 hours prior to the accident. She had made at least one friend, Ayisha, at the English classes, and that friendship has continued.
[4]
14 She would catch a tram to attend the English classes, and it was whilst she was on her way to English classes that the transport accident occurred.[5]
[5]
15 Mrs Kaya describes[6] taking great pride in keeping a spotless home prior to the accident, and enjoying maintaining the garden, cooking complicated traditional meals, entertaining friends, preparing cakes and making coffee, and enjoying going on occasional picnics with her husband and sister.
[6] Exhibit A.
16 The plaintiff’s husband, Mr Duran Kaya gave evidence and expressed his discontent at the plaintiff’s inability to perform the tasks she was capable of prior to the transport accident, in particular that the house is no longer kept spotless, she does not do the heavier tasks and he must when he comes home from work, and that she now lacks goals. He misses the enjoyment of her entertaining and cooking for friends and family. He regards as a burden that she needs him to accompany her out, such as for shopping. There is clearly now friction and tension in their marriage.
The transport accident
17 On 1 March 2006, as she stepped of a tram the plaintiff was struck by a motor cycle and fell to the ground. An ambulance was called and she was taken to the Royal Melbourne Hospital, where her immediate injuries were assessed, and she was discharged later that day. Her initial complaints included bruising to her upper left thigh, right calf, right ankle, right foot, bruised right fourth toe, neck and low back pain and bilateral knee pain. The bruising all resolved and although there have been diverse complaints of pain continuing, the case concedes that there are not ongoing serious consequences of any physical injury.
18 The first mention of any psychological injury was in a statement on the plaintiff’s claim form under the Act dated 3 August 2006.[7]
[7] Exhibit G.
Plaintiff’s evidence
19 Mrs Kaya says that before the accident she was a happy, calm and confident person. She says that a result of the accident she has suffered pain in her left thigh which reaches down her leg especially when standing for long periods. She also claims to still suffer pain in her right leg, both knees and her low back. She has difficulty sleeping. She initially had dreams about the accident, but not as frequently now. She also says that she is now more anxious, becomes angry and irritable, and has lost confidence. She is afraid to leave the house alone, and in particular to drive a car or even travel as a passenger – although she does go out with her sister or husband driving or walking with her. She if frustrated that she feels that she has lost her independence.
20 She did continue driving lessons and obtain her driver’s licence within months after the accident, but has rarely driven alone because of fear of traffic.
21 In 2008, between April and September, she did attend a further 330 hours of English classes. She says that she was driven there and collected afterwards by her sister because of her fear of travelling alone. She still has very limited grasp of English, and I am unable to say whether her injuries from the accident impacted that learning at all.
22 In August 2010 the plaintiff visited Turkey with her husband and son, her husband returning earlier and the plaintiff returning with her son in January 2011.
23 During cross examination she described her days as consisting of watching television in the morning with her son, having breakfast, supervising her son whilst he is outside in the back garden, preparing lunch and dinner. In the afternoon, if the weather is nice she will again supervise her son playing outside and whilst he sleeps she will do the laundry. The heavier cleaning and housework is left for her husband to do. She can walk alone (with her son) to her sister’s house but that is only a block away. Otherwise she relies on her sister to accompany her even to the shops or a local park to allow her son an outing.
24 She said that she hates being at home; it feels like a prison, but she does not have the courage to go outside. I accept that this is consistent with her psychological condition, but I also take into account that the care of a young child can be isolating and limit activities outside the house. It can also contribute to a decline in tidiness and the “spotless” house.
25 She says that her plans for the future have changed as a result of the accident, in that she was thinking of having more than one child, but now does not make plans for that, and wonders if she is going to be helpful to her son.
Medical Evidence
26 The plaintiff attended her general practitioner, Dr Ildiri shortly after the accident and Dr Erjiay also in the week after the accident. I accept that she did not continue to see either of these doctors for her injuries because both doctors advised that they did not consult with motor vehicle accident patients.
27 On 16 March 2006 she attended Dr Baglar, complaining of bruising on her left thigh and buttocks, trauma to her right foot including the 4th toe, and that she had developed a neck spasm, and had been waking during the night with pain. On examination he confirmed an ovoid shaped bruise on the left upper thigh, tenderness on the lateral surface of the right calf, tenderness on the right ankle and a bruised right 4th toe with the nail loose and about to drop off. Mrs Kaya was given analgesics and referred for ultrasound which did not indicate any tears.
28 On 17 July 2006 she attended Dr Baglar again, complaining of pain, but as she was on the IVF program and attempting to conceive, he prescribed simple analgesics for her pain only. She did not attend again until 3 September 2008 when she was 20 weeks pregnant, told him she afraid of vehicles and unable to use public transport, but due to the intervening history of her first pregnancy, no medication was prescribed.
29 Dr Baglar saw the plaintiff again on 22 January 2009, 23 February 2009, 25 May 2009 and 6 October 2009, the last occasion when a referral was written for her plaintiff to attend a Turkish-speaking psychologist, Ms Durmaz. He acknowledged that she had not attended regularly and that it was difficult for him to assess and diagnose her physical or psychological condition.
30 In cross examination Dr Baglar admitted that there was no evidence conveyed to him of fear of vehicles before September 2008. However, as he had written in his last report, he explained that although he spoke Turkish with her, he thought that there were significant cultural barriers to her communicating openly with him as a male therapist[8], explaining at least in part her reluctance to attend or tell him of her psychological problems. He also accepted her explanation for not attending him more often as due to her own reluctance to drive or otherwise travel alone and her not wishing to impose on others to bring her to his clinic.
[8] T89 L11-18.
31 Ms Semra Durmaz, a clinical psychologist who practises from Dr Baglar’s clinic, saw the plaintiff for five sessions from 6 October to 15 December 2009, on a referral for “Reactive Depression, Adjustment Disorder due to MCA.”[9] Ms Durmaz diagnosed Adjustment disorder (chronic) with mixed anxiety and depressed mood.
[9] Exhibit 2. Referral dated 6/10/09.
32 Ms Durmaz had a history of the plaintiff being struck as she stepped off a tram. She knew that Mrs Kaya had lost a first baby, but was not aware that she had been on the IVF program, and was not aware of any medical condition relating to either pregnancy or the still birth. Mrs Kaya had told her that she had finished her grieving for the first baby, and was enjoying having her son born in January 2009, but felt she was not able to enjoy him as much as she would have because of her mood since the accident, of feeling frustrated that she cannot do things, such as heavy housework, or taking the child out without someone else with them, and felt she became agitated and irritable as a result. On her attendances she complained of not sleeping due to her left leg, and pain in her back, and pointed to her left thigh being painful. She understood that her sister was bringing her to the appointments, and taking her to do shopping and driving her. She felt that she had lost her motivation, lost her confidence, and was told she did not look at the mirror, and that these problems were attributable to depression. She considered that anxiety was responsible for her being scared to drive.
33 Ms Durmaz said that her account of the plaintiff’s physical pain or restrictions was what she was told by Mrs Kaya and not from her own observation. During their sessions Mrs Kaya sat throughout in a chair and they talked of her difficulties and feelings.
34 Dr Nigel Strauss, consultant psychiatrist examined the plaintiff in June 2009 and again in February 2011 for medico-legal and impairment assessment. After his first consultation he diagnosed that she was suffering from post traumatic stress symptoms and an adjustment disorder with anxious mood. He thought that a proportion of her psychiatric impairment was unrelated to the accident, but related to the loss of her first baby. He thought that there was both a primary and secondary component of her psychiatric impairment from the accident. At that stage he was not prepared to state that she has a pain disorder, although he did consider that there was an element of psychologically based pain of which she continued to complain.
35 On examination in February 2011, Dr Strauss’s opinion was that she has a pain disorder, associated with both medical condition and psychological grounds, and that most if not all of her pain can now be explained on psychological grounds. He emphasized that her presentation did not suggest deliberate over-exaggeration of her problems. He reported that she has a mild adjustment disorder related to the 2006 accident, and that the most appropriate diagnosis is an adjustment disorder with depression and anxiety. She also has some post-traumatic stress symptoms related to the 2006 accident. He believed the accident to be a major cause of her psychiatric condition. He did not expect treatment to make any difference, and felt her condition to be stable and her prognosis guarded.
36 Dr Strauss was cross-examined. When asked about the degree of her incapacity if she was able to do a further 330 hours of English classes during 2008, he said that he did not ask how she went but recalled she could not speak much English when she saw him and commented that English classes can be considered as occupational therapy. He was told that she had been driven to and from the classes by her sister and found that consistent with her agoraphobic symptoms. When asked whether the plaintiff undergoing driving lessons and subsequently obtaining her drivers licence was in conflict with the psychiatric opinion, in particular the agoraphobic features, Dr Strauss’s view was that when driving with an instructor it is very different from going alone and more readily able to be dealt with.[10] He did not consider it likely that the grief from the stillbirth would be responsible for agoraphobic features, but confirmed that the loss of the child was distressing and would probably always affect her. He concluded that the accident was the major cause of her psychiatric problems.
[10] T104.
37 In discussing her prognosis, Dr Strauss said:
“ She wasn’t in Australia for very long, her family predominantly are in Europe or overseas and she was just establishing herself here without much command of language, dependent upon her husband and the accident happened and I think it’s been a big setback for her. It hasn’t given her the chance to become autonomous, to go out, possibly to get work and it’s really restricted her lifestyle.”[11]
[11] T110 L31 – T111 L8.
38 Dr Paul Kornan, consultant psychiatrist, examined the plaintiff for medico-legal assessments in October 2008, March 2010, and February 2011[12], and was cross-examined. On first examination (during her second pregnancy), he assessed her as of a personality type of rather self-contained somewhat rigid temperament, and her behaviour showed someone who was insecure and lacking in confidence and having heightened anxiety features. He diagnosed specific phobia (fear of further accidents leading to agoraphobic features), and a generalised anxiety disorder, and in overall terms found her psychiatric state of moderate intensity. He felt she had found inability to travel quite disabling and causing considerable distress but that it was slowly settling. He felt she needed psychiatric treatment and wrote to Dr Baglar suggesting anti- depressant medication and referral to a psychologist or psychiatrist.
[12] Exhibit F
39 On the second assessment he commented about the effect of the loss of the first baby, and considered that there was some grief still over that. He diagnosed panic disorder with agoraphobia, and adjustment disorder with depression, a grief reaction due to the loss of a stillborn child, and a specific phobia about further accidents, and thought her prognosis less favourable given that her symptoms had persisted, and he considered her incapacitated for employment for the significant foreseeable future. He did not consider that she had a post traumatic stress disorder, and did not understand Dr Strauss to have diagnosed that either. On his most recent examination he still found her presentation as showing a tense, anxious woman who was having difficulties in coping and who had problems with confidence and self-esteem, and still some grief over the first pregnancy. He thought she had some probems with memory and concentration. His diagnosis was of a pain disorder with agoraphobia, but otherwise unchanged, and he felt her psychiatric condition was significantly florid, and there was still effectively significant difficulty in going outside her home on her own.
40 On cross-examination he described her type of condition as not responding well to treatment, and being very disabling, and in her case moderately disabling, and that she has a lot of nervous symptoms. He agreed that her travelling back to Australia from Turkey alone was encouraging. He said that the agoraphobia has come out “down the track”, having been masked by others accompanying her out. He said the hallmark of agoraphobia is its persistence, and he thought her unlikely to improve when the case is over, and that she is unlikely to be able to travel alone, and notes that families get irritated by it and the person suffering the condition remains a house bound invalid unless accompanied on outings.
41 Ms Sirpil Ozturk, clinical psychologist, provided reports[13] and was cross- examined. She has been treating the plaintiff, speaking Turkish, on referral from Dr Baglar, since February 2010, a total of six sessions up to the date of Hearing (interrupted by the plaintiff being overseas from late August 2010 until late January 2011). She understood that the plaintiff was referred to her because it was too far to travel to continue to see Ms Durmaz. Ms Ozturk diagnosed post-traumatic stress disorder which has become chronic, chronic pain disorder, and chronic adjustment disorder with mixed anxiety and depressed mood.
[13] Exhibit J
42 Her treatment involved counselling to assist with acceptance and adjustment to injury and consequent changes in daily life, pain management, educational information about the factors involved in development of depression and anxiety, and cognitive and behavioural strategies to reduce depressive and anxious symptoms. She recommended further sessions, to deal with other issues, including strategies to improve sleep, relaxation training to reduce anxiety, imaginal exposure to driving and boarding public transport, goal setting and activity scheduling, and relapse prevention. She first gave the prognosis as positive, but following one session after her return from four months visiting family in Turkey, Ms Ozturk considered the prognosis guarded, as Mrs Kaya remains very distressed about her physical pain and its restrictions on her activities. She attributes the psychological conditions to the transport accident, and on cross-examination confirmed that she knew about the first pregnancy. She understood that Mrs Kaya had taken some anti- depressants before going to Turkey, and she had herself recommended that to Dr Baglar in March 2010.
43 Dr Timothy Entwistle, consultant psychiatrist, assessed the plaintiff on 14 February 2011 for the defendant[14]. He noted complaint of diffuse areas of pain. He also noted marital issues since her accident , concerning her non- completion of housework, that she felt unloved, and that she must be careful what she said, and felt that there was considerable tension in the marriage, indicated that she was not generally lonely or isolated, but felt lack of confidence, does not drive or go out without another adult. She felt frustrated, and gets angry and upset and irritable, but has not felt so hopeless as to be suicidal. She said she cannot relax, her sleep is not good, and she has dreams of falling down and of the accident. She felt that the psychologists’ sessions had helped.
[14] Exhibit 10.
44 Dr Entwistle found her affect preoccupied and anxious but not distressed or agitated, and she related well through the interpreter. Her speech showed normal speed and flow, and her account was cogent. His opinion was that against a background of being vulnerable and isolated, she had developed a pain disorder which he believed was in the context of her accident and the loss of a baby. He noted that marital friction was significant and that no counselling had been undertaken and felt psychological treatment focused only on her would not achieve much improvement. He thought her prognosis uncertain given her vulnerability and “the present state of affairs”.
45 The defendant also tendered a report of Mr Michael Shannon, consultant orthopaedic surgeon, who examined the plaintiff for the defendant in February 2011[15]. He examined her clothed, for cultural reasons. He found no evidence of impairment of her back with a virtually normal range of movement. His diagnosis was of soft tissue injury to her left thigh and right leg, which resolved within weeks or months, and although she was still describing pain in both legs and ankles and her low back, he believed there was no physical injury influencing her work capacity or daily living.
[15] Exhibit 11, report dated 21/2/11
Has the plaintiff suffered a severe long-term mental or behavioural disturbance or disorder?
46 I am satisfied that as a result of the transport accident Mrs Kaya has suffered a psychological injury, being at least an adjustment disorder with anxiety features. I am satisfied that within months after the accident she experienced anxiety about being exposed to traffic, whether within a car or on public transport, fearing a further accident, and that she experienced dreams about the accident. I note that despite the views of the present treating psychologist, Doctors Kornan and Strauss do not diagnose a post-traumatic stress disorder, but find some similar symptoms, and both find that she suffers agoraphobic symptoms, and a largely now psychologically based pain disorder. They, and Dr Entwistle, also diagnose an adjustment disorder with anxiety symptoms.
47 I am satisfied that the symptoms of anxiety about use of public transport, and driving, emerged within months of the accident, as reported on her claim form to the TAC five months after the accident. I am satisfied that they were caused by it, as confirmed by Doctors Kornan, Strauss, and Entwistle. I make this finding despite no report to a treating doctor of such symptoms until 2008, by which time the defendant argues the grief of the loss of her first baby was a more likely cause. I am satisfied that the nature of her symptoms was more consistent with the transport accident being the cause. I am also satisfied that she had not reported these symptoms earlier to Dr Baglar because she did not visit him in the meantime (between July 2006 and September 2008), was reticent about talking openly with him as a male, and that she was pre- occupied with the doctors seeing her during the intervening IVF treatments and her first pregnancy, and then its tragic end.
48 Dr Entwistle considers the loss of her first baby a significant complication of her psychological condition. Clearly it would have very significantly impacted on her psychologically, and her psychologists and doctors Kornan and Strauss confirm that. However it did not occur until some fifteen months after the transport accident, by which time I am satisfied that the plaintiff already had psychological symptoms from the accident, at least to the extent described in her TAC claim form in August 2006[16], in that she was afraid to travel by tram, and was “under stress”.
[16] Exhibit G
49 The still-birth of her first baby came unexpectedly and as a shock to her, and undoubtedly was a very distressing event which would have had impact on her mental state and on her life in general. Both Doctors Kornan and Strauss agreed that in their experience as psychiatrists no woman who loses a baby ever fully recovers from such a loss. Nevertheless, and consistent with the views of both of those psychiatrists, as well as the treating psychologists, who both knew of it, I am satisfied that the effect of the transport accident on her psychological state has continued to be a significant material cause of her psychological problems, in particular the fear of going out alone and using transport.
50 The critical question in this case is the extent of the consequences to her of her psychological condition to which the transport accident continues to be a contributing cause, and whether those meet the description “severe” and “long-term”. The plaintiff has told her current treating psychologist, Ms Ozturk, that there has been some reduction in frequency of nightmares, although she remains distressed by her difficulty sleeping. Ms Ozturk believes that further treatment could assist in teaching her strategies to assist with her ongoing symptoms including sleep, relaxation, and strategies to go out of the home. I must assess the current level of symptoms, but taking into account the degree to which they are likely to continue long-term. I find that there may yet be some improvement, in particular if she can learn more stategies from Ms Ozturk to work around her problems to cope with them, but I am also satisfied from the evidence of doctors Kornan and Strauss that it is difficult to treat agoraphobic symptoms which can be insidious in the long term.
51 The defendant challenged that the plaintiff does not go out alone or drive. It relied on a recorded fine for speeding (exceeding the speed limit by less than 10kph on 11/7/09)[17]. This was sent to her as registered owner of the car. I accept her and her husband’s evidence that she was not driving at that time and the car was registered in her name when purchased, before the transport accident and before she had a driver’s licence, to make her feel settled in Melbourne.
[17] Exhibit 1
52 The defendant also challenged that the plaintiff was not capable of walking alone in the city, by putting to her that she had walked alone from the intersection outside the court building to her husband’s workplace several city blocks away, after the second day of the hearing. She agreed that she had done so, because she had no choice, and had been frightened doing so fearing that cars would not stop at traffic lights. She said that her sister and brother-in law had brought her to court but had to leave earlier, and left her son with her husband who was at work, and the lawyers were not with her and she had expected the interpreter to be able to walk with her to her husband’s workplace in Market Street, but when she asked the interpreter had said she could not that day. The defendant called the interpreter, Ms Boca, who confirmed that she had accompanied the plaintiff leaving the court building on the day in question, that the plaintiff had asked her to walk her to her husband’s workplace but she had declined because she was in a hurry and her car was in the opposite direction. I found Ms Boca’s evidence consistent with the plaintiff’s version of those events, and accept that Mrs Kaya did not choose to walk alone, but found herself in a position where the interpreter was not free to accompany her some blocks out of her way, and she was already outside the building with no other support, and her husband when telephoned was unable to leave work immediately to come to collect her. I accept that she did not want to walk alone and felt some fear and distress at doing so, but found some support by looking for people nearby, and was able to manage to walk where she needed to go because it was necessary. I also note and accept Dr Strauss’ evidence when he was required to be recalled about this, that this information did not change his opinion about her agoraphobia because in the scenario put to him she had no option but to walk down William Street alone. Only if she were not frightened by doing so would it indicate that she did not have that condition.
53 I accept that she is fearful of traffic, and lacks the confidence to go out of the house much, without being accompanied by another adult, whether this is a walk to shops or a children’s playground, or travelling by public transport, or driving without another adult in the car. These have all become barriers to her independence, especially driving, because she was learning to drive at the time, managed to take her driving test as she had an instructor beside her, but having a young child she is and will remain significantly hindered in not feeling able to drive without another adult in the car.
54 She did travel with her husband and son to Turkey in August 2010, and was able to see her parents, other siblings and extended family. She and her son stayed longer than her husband could as he needed to return to Melbourne to work, and she travelled with the baby back to Melbourne. I note Dr Strauss’s evidence that sitting in an aeroplane with other people around would provide some support to overcome the agoraphobic feelings, but I do take into account that even if family took her to the airport and she was collected by her husband on arrival in Melbourne, she was apparently able to navigate and cope with airports with a baby and no immediate adult company, indicating that she retains the ability to concentrate on finding her way to where she needs to be, with a baby, and without direct adult assistance.
55 She was able to take further driving lessons and obtain her driver’s licence after the accident, albeit with a driving instructor beside her. I accept that she does not drive without her husband in the car, and that is not often.
56 I also take into account that following the transport accident, she was able to continue with her IVF treatment, become pregnant within months, and despite the tragedy of the loss of that baby, was able to conceive another baby and give birth to a healthy child. Notwithstanding that I accept that she feels isolated and unable to take him on outings without other adult company, she manages on a daily basis to care for this child and take pleasure in raising him, despite feeling limited and concerned about how she will handle him as he grows older and needs to be taken to school and other activities.
57 She still has social interaction, even if more limited than she might have hoped, in that she still sees her sister virtually daily, and still sees and spends time with her friend Ayisha, even if Ayisha comes mainly to the plaintiff’s home, with her child and Mrs Kaya’s.
58 I accept that Mrs Kaya continues to perceive herself as being in pain, especially in her legs and back, and that this is predominantly now a symptom of her psychological condition. However, even with her ongoing perception of pain she is undergoing only limited treatment by way of pain relief, and while the IVF treatment and pregnancy was a reason to avoid much medication for the first couple of years, she does not seem to have needed more since the birth of her child. For her psychological condition she was not prescribed medication until a recommendation from Dr Kornan to her GP, and again while it may have been avoided until the birth of her child in January 2009, even since Dr Baglar has only given two such prescriptions, and she has not been taking such medication regularly.
59 She now attends an appropriate psychologist, who may well be able to help her further. I accept that as there has been only one Turkish–speaking psychiatrist in Melbourne, who is male, it is understandable that she has not been referred to a psychiatrist for treatment. I also take into account that her ability to travel to Ms Durmaz and even Ms Ozturk has been limited by having to be taken there. However, in comparison with many other sufferers of psychiatric conditions who come before this court, I regard her treatment as not having been extensive.
60 Taking both the pain and the anxiety and phobic symptoms into account, all as consequences of her psychological condition, I am satisfied that the ongoing and likely long-term impact of these on the plaintiff can fairly be described as more than significant and “very considerable” to her in her circumstances. As described by Dr Strauss, the impact was to prevent her from becoming autonomous – she lost the momentum to gain the skills and confidence she needed for independence in her new country. On the other hand, she did complete the formal gaining of some of those skills – her driver’s licence and English classes. Further, she appeared able to maintain her poise and concentration during her time in the witness-box, even under the stress of giving evidence in a court. I am not satisfied that there is any significant problem with her being able to think calmly and to concentrate for concerted periods when necessary. That is consistent with her completing the classes and driver’s licence test.
61 To meet the test for a serious injury from a mental or behavioural disorder, a plaintiff must establish that the consequences are something more than very considerable, and when compared with the range of other possible mental or behavioural disorders. The test under the Transport Accident Act allows me to take into account both pain and suffering consequences, and any loss of earning capacity, as distinct from the test under the Accident Compensation Act, but as already stated I am not satisfied that that impact has been more than nominal in her circumstances at least to date and for the next few years, as I am not satisfied that she was likely to be accessing paid employment in that time. Taking all of these matters into account, I am not satisfied that the consequences to Mrs Kaya can fairly be described as more than very considerable, or “severe”, in comparison with the symptoms and consequences of other psychological injuries that come before this court.
Conclusion
62 While satisfied that the transport accident continues to materially contribute to an adjustment disorder with anxiety symptoms, agoraphobic symptoms, and to a pain disorder of psychological basis, I am not satisfied that the consequences of those conditions to plaintiff can fairly be described as “severe”. Her application will therefore be dismissed.
Court Ref: CI-10-01108
LIST OF EXHIBITS
Serap Kaya v TAC
Number
and Short Description of Exhibit Tendered Date tendered
Identifying by… Mark on Exhibit
A Affidavits of Plaintiff dated 17/02/10 and 01/04/11 Plaintiff 11/04/11 B Report of Ms Semra Durmaz dated 07/01/10 Plaintiff 11/04/11 C Affidavit of Duran Kaya sworn 01/04/11 Plaintiff 11/04/11
D Reports of Dr Hakan Baglar dated 22/05/07, Plaintiff 12/04/11 25/05/09, 15/02/10 and 01/11/10
E Reports of Dr Nigel Strauss dated 02/06/09 and Plaintiff 12/04/11 02/02/11 F Reports of Dr Paul Kornan dated 15/10/08, 10/03/10 Plaintiff 12/04/11 and 16/02/11 together with letter to Dr Baglar dated
15/10/08G Plaintiff’s claim form under the Transport Accident Plaintiff 12/04/11 Act dated 03/08/06 H Referral from Dr Baglar dated 16/02/10 Plaintiff 12/04/11 J Reports of Ms Serpil Ozturk dated 09/08/10 and Plaintiff 12/04/11 28/03/11 1 Computer generated document showing demerit Defence 11/04/11 points accrued to plaintiff in relation to 23/07/09 2 Clinical file of Ms Semra Durmaz relating to the Defence 11/04/11 plaintiff 3 Dr Baglar’s patient assessment form for Medicare to Defence 12/04/11 pay Psychologist dated 27/10/09
4 Letter from Dr Helen Savoia (Consultant Defence 12/04/11 Haematologist) from the Royal Women’s Hospital to Dr Sibel Ildiri at Sydney Road Medical Centre dictated 04/08/08
5 Letter from the Diabetes Clinic at Royal Women’s Defence 12/04/11 Hospital dated 15/08/07 to Dr Sibel Ildiri 6 Extracts from records from the Royal Women’s Defence 12/04/11 Hospital (Antenatal clinic) for 15/08/08 and 17/11/08
(2 pages)
7 Royal Women’s Hospital Elective Surgery Defence 12/04/11 Assessment of plaintiff dated 05/07/05
8 Letter from Dr Helen Savoia dictated 22/12/08 Defence 12/04/11 addressed to Dr Baglar 9 2 page extract from NMIT records of plaintiff’s Defence 12/04/11 attendance in certificate in spoken and written
English 16/04/08-15/12/0810 Report of Dr Timothy Entwisle dated 14/02/11 Defence 12/04/11
11 Page 1 of Report of Mr Michael Shannon dated Defence 12/04/11 21/02/11
12 Letter from Royal Women’s Hospital to plaintiff dated Defence 12/04/11 25/07/07
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