Kher-Bek v Transport Accident Commission
[2020] VCC 1364
•4 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-05805
| RIHAB KHER-BEK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2020 | |
DATE OF JUDGMENT: | 4 September 2020 | |
CASE MAY BE CITED AS: | Kher-Bek v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1364 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Serious injury application – psychiatric injury –– whether consequences severe - left upper quadrant injury - aggregation
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; 37 VR 232; Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; 1 VR 511
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C J Blanden QC with K Popova | Henry Carus & Associates |
| For the Defendant | P Rattray QC with S Pinkstone | Solicitors to the Transport Accident Commission |
HIS HONOUR:
1 Ms Kher-Bek was the front seat passenger, with her seatbelt on, when the stationary car she was in was struck by another vehicle. Her vehicle was pushed into a tree. She sustained injuries in this motor vehicle accident on 6 August 2012. She claims that the physical injuries to her neck, left shoulder, and left breast (together, the left upper quadrant) and low back satisfy the test of being serious injuries when assessed in accordance with section 93 of the Transport Accident Act 1986 (Vic) (“the Act”)[1]. In addition, she claims that the psychiatric injury suffered in the motor vehicle accident is “severe” to the extent required to satisfy that same definition of serious injury.
[1] She abandoned reliance on a right thumb injury at the outset.
2 Whether her physical injuries can be aggregated so that the impairment of a body function, being her left shoulder, has resulted in consequences which could be considered serious, formed a critical point of dispute between the parties. The Defendant also argued that the physical injuries, either in isolation or in combination, did not reach the relevant level to be considered serious. To that extent, the Defendant raised issues about credibility and exaggeration on the part of the Plaintiff. The Defendant also argued that there were issues of entanglement arising from injuries which the Plaintiff had and were also contributing to the claimed consequences.
3 The psychiatric claim was contested over reasonably narrow grounds. The parties accepted that there had been a psychiatric injury as a result of the motor vehicle accident but its severity was in dispute. Here again the Defendant raised issues of credibility and exaggeration as to the claimed consequences.
Brief Background
4 The Plaintiff was born on 8 March 1963. She completed a university education in Syria and taught English for a period. She married in 1990 and came to Australia in 1991. She and her husband had three children. She developed epilepsy and went onto lifelong medication in the early 1990s. She has been on a disability support pension since 1993 as a result of epilepsy.
5 Prior to the motor vehicle accident, she did voluntary teaching in Arabic one day a week as well as helping her husband in the family business, which was a sports store in Lalor. Otherwise she was engaged working at home caring for the children.
Claim for Physical Injury
6 It was said in Georgopoulos v Silaforts Painting Pty Ltd:
Two or more injuries may act together on a particular body function so as to cause serious impairment or loss within the meaning of the definition, but it is impermissible to aggregate impairments, one of which is not a permanent serious impairment, to separate body functions in an attempt to satisfy the requirements of the definition.[2]
[2][2012] VSCA 179; 37 VR 232 at [58]
7 This in turn referred to the discussion in Lu v Mediterranean Shoes where his Honour Chernov JA stated:
Thus if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long-term.[3]
[3]Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; 1 VR 511 at [27]
8 Here, the Plaintiff argued that at the time of the motor vehicle accident she sustained simultaneous injury to the neck, left shoulder and left breast. The evidence for this is strong. Mr Blanden QC, who appeared for the Plaintiff, identified that of impairment of the “left upper quadrant” in total. Mr Rattray QC argued that such aggregation was against the principles in Lu. When regard is had to the factual findings below this debate becomes otiose. This is because I find against the Plaintiff in regard to her claim in respect of paragraph (a) for physical injury. For clarity, I find that even if the Plaintiff could aggregate those three injuries, they would not rise to the level of being considered serious. There are other anterior findings which mean that the Plaintiff does not succeed in respect of her paragraph (a) claim. I will set those out.
9 The starting point is whether there was physical injury caused by the motor vehicle accident. To deal with each of the injuries separately, I begin with the left breast. The evidence in support of injury to the left breast occurring in the motor vehicle accident is strong. First, it is consistent with the positioning of the seat belt path for a passenger in the front seat. Then, the Royal Melbourne Hospital records that she was immediately tender along the upper left breast.[4] Her TAC claim form, lodged on 3 September 2012, contemporaneously similarly notes that she was experiencing a lump about the left breast.[5] That problem was communicated to her treating doctor, Dr Pathak, and it was arranged for her to have an ultrasound and mammogram which occurred on 12 April 2013.[6] That recorded a finding by the radiologist of a “fat necrosis after trauma”. She then came under the care of a specialist breast surgeon Dr Masters. His records and reports appear at PCB 79 onward. They record over the next year between 2013 and 2014 ongoing aspirations of oil from the left breast lump. All this is consistent with a left breast injury occurring in the accident.
[4]Plaintiff’s Court Book (“PCB”) 75
[5]PCB 23
[6]PCB 68
10 Turning to the issue of ongoing injury however it is to be noted that by 4 March 2014 Dr Masters had recorded that the prognosis was excellent.[7] In a report dated 15 May 2014 the treating doctor Dr Pathak noted the problems with the left breast had largely resolved.[8] This is confirmed by Dr Masters some months later.[9] While the Plaintiff gave evidence at trial that she had recently been referred back to Dr Masters, this was noted simply to be a follow-up appointment. While the Plaintiff then complains that the breast lump and the area surrounding is sore and painful, there is no ongoing treatment between 2014 and the date of the trial that indicates significant pain or limitation caused by that breast lump. For that reason, while I accept that there has been injury caused to the left breast, it is insufficient to constitute a serious injury when one looks at the statutory test and the relevant authorities.
[7]PCB 77
[8]PCB 83
[9]PCB 85
11 The next aspect of the Plaintiff’s claim for physical injury rests on injury to the neck and left shoulder. It is here that aspects of the accident itself must be set out, as they go to causation, and perhaps exaggeration on the Plaintiff’s behalf. The initial ambulance records show a history of the vehicle striking the Plaintiff’s car travelling at 50 km/h and that the Plaintiff sustained no loss of consciousness.[10] This is a history replicated in the report of the Royal Melbourne Hospital.[11] The report notes left shoulder pain and a bruise about the chest.
[10]PCB 35
[11]PCB 75
12 Her TAC claim form however notes that during the accident she lost consciousness and sustained injury to the left shoulder, bruising to her chest and left breast.[12] There was no mention of injury to the neck or back. Her affidavit however, dated 11 December 2019, at paragraphs [9] and [10] notes that the other vehicle was travelling at ‘high-speed’ and she felt immediate pain in her chest, left shoulder, neck and back.[13] The Defendant argued that there has been a great deal of exaggeration by the Plaintiff of her condition and this was one example. Further, the Plaintiff alleges that since the time of the accident she has experienced neck and left shoulder pain for which she has required ongoing Panadeine Forte medication. This is medication which requires a prescription. The Plaintiff repeated this claim in evidence during the trial.[14] When regard is had to the medical notes, there is real doubt about whether she was prescribed this medication. The Plaintiff was sent by her lawyers to see Mr Stapleton for a medicolegal report and he opined on 22 November 2012. He took a history of neck and back pain arising from the motor vehicle accident. He noted use of Tegretol for epilepsy but not Panadeine Forte.[15] Further, at that time treating doctor notes do not reveal any complaint of neck and back pain or prescription of Panadeine Forte. In fact, Dr Pathak in his report to the Plaintiff’s lawyers dated 15 May 2014 makes no mention of neck and left shoulder pain or back pain.[16]
[12]PCB 23
[13]PCB 11
[14]Transcript (“T”) 20
[15]PCB 102
[16]PCB 82-84
13 From the date of the accident in 2012 until 2 June 2016 there is no recording for lower back, neck or left shoulder pain. The first recording for low back pain is on 2 June 2016.[17] It is significant that at this attendance there is no recording for left shoulder or neck pain. The Plaintiff’s evidence is that she had been in constant pain and receiving Panadeine Forte during the four years since the accident to 2016. However, there is no record that Panadeine Forte had been prescribed and no evidence of complaint to the treating doctor about neck or left shoulder pain. Then on 13 July 2016 there is a recording by the treating doctor that there is pain in the neck and left shoulder, for the last two weeks, but with no cause ascribed.[18] Panadeine Forte was then prescribed. In cross-examination the Plaintiff was confronted with this. Her evidence broadly was that she had learned to cope with the pain and it was only when there was a flareup that she saw her treating doctor. Even if this was the case it appears there had been no flareups between the motor vehicle accident and June 2016. Taking a more realistic view of the evidence however I find that the Plaintiff was not suffering from symptoms of neck, low back and left shoulder pain from the time of the motor vehicle accident until mid 2016. Alternatively, if she did have such symptoms, they were so minor as to require no medication and treatment.
[17]PCB 211
[18]PCB 210-211
14 I further find consistently with the note, that on 13 July 2016 she was suffering from pain which came on within the last two weeks and was not related to the motor vehicle accident. I am bolstered in this finding by reason of the note from the Plaintiff’s attendance of 21 May 2017 where there is a discussion of her worsening psychiatric state but once again, no mention of neck or left shoulder pain.[19] To counter this, the Plaintiff called in aid the reports of Mr Stapleton who had reported in 2012 and also Associate Professor Paoletti, medicolegal psychiatrist, who had reported to the Plaintiff’s lawyers on 21 August 2014. He took a history of pain in the neck and lower back but once again there was no mention of left shoulder pain.[20] I do not accept that this assists the Plaintiff. It is simply one recording during the period of time she had a regular treating doctor who she reported to. She made no mention to him of ongoing neck and left shoulder pain. Similarly, there are no prescriptions for Panadeine Forte and Dr Paoletti did not record that she was on such medications even when he saw her.[21]
[19]PCB 208-209
[20]PCB 110
[21]He specifically says on PCB 110 that she is not taking any medications.
15 It is also to be noted that the treating doctor at no stage between the motor vehicle accident and March 2018 referred the Plaintiff for investigation of her alleged neck, low back or left shoulder problems. In fact, she was only referred for such investigations after she had suffered a fall in March 2018 by reason of an epileptic seizure. In her affidavit, the Plaintiff recorded that she “ …had an epileptic fit and fell onto my left shoulder further aggravating my condition”.[22]
[22]PCB 11 at [22]
16 The Defendant cross examined her about this statement. In cross examination she denied that she knew whether she fell onto the left shoulder, just that she hurt it in the fall. I formed the view that her evidence on this point was unsatisfactory. When regard is had to the treating doctor’s notes they record simply that she had a painful left shoulder for a few weeks and then an ultrasound was requested.[23] Once again there is no record from the treating doctor of long-standing left shoulder pain having been aggravated in a particular fall. When pressed about whether she had fallen directly onto the left shoulder as in her affidavit, the Plaintiff resiled from that, stating that she could not remember whether she fell directly onto the left shoulder. I was left with the impression that she had sought to bolster her claim of long standing left shoulder injury during cross examination by denying the further aggravation of her left shoulder condition by reason of the fall as set out in the affidavit. I formed the view that this was to deflect attention from the fact that her present left shoulder condition is more likely related to this fall than the motor vehicle accident.
[23]Defendant’s Court Book (“DCB”) 23
17 The affidavit however left the impression that the fall was directly onto the left shoulder, causing the aggravation. Her complaints in 2018 prompted her treating doctor to refer her for an ultrasound. The ultrasound performed on 26 March 2018 confirms that there was subacromial bursitis with evidence of impingement.[24] She was then referred to Mr Vinci, physiotherapist, who saw her in April 2018. His history was that she was uncertain as to the cause of the most recent exacerbation of her left shoulder pain[25]. Once again there is no history here of left shoulder pain being constant since the motor vehicle accident. In cross-examination the Plaintiff confirmed that she had constant pain since the motor vehicle accident. Mr Vinci has a history of only intermittent pain.
[24]PCB 69
[25]At DCB 31 the notes record the Plaintiff denying a previous problem with the left or right shoulder and that the pain had only been for the last month. At DCB 45 the left shoulder pain is noted as having an “insidious onset”.
18 Overall, assessing the Plaintiff’s evidence, I find that she is an unreliable witness as to the course of her neck, low back and left shoulder pain. I prefer the contemporaneous recordings from her treating doctor and the notes as to medications regarding what exactly was prescribed in the period between the motor vehicle accident and the fall in the shower in March 2018. That leads me to conclude and I find that there were minimal symptoms associated with any neck, low back and left shoulder injury that she had sustained in the course of the motor vehicle accident to at least March 2018.
19 Turning then to the medicolegal opinion about these matters, I find in accordance with Mr Menz that the Plaintiff had injury to the neck and left shoulder but that has long since resolved. I further find that there is no way to disentangle the current complaints regarding the neck, low back and left shoulder problems from those caused by the fall in March 2018. It is for the Plaintiff to disentangle the effect of the March 2018 left shoulder injury (or aggravation) from that which is said to arise from the motor vehicle accident. The evidence is simply not such as to permit such a disaggregation. To that extent, even if I was to accept Mr Chehata’s opinion, I would not be in a position to make the findings required as to the consequences caused by the motor vehicle accident to the neck and left shoulder separate from that caused by the March 2018 incident.
20 This similarly means that the evidence is not in a state where even if I was to permit the aggregation of the left breast, neck, and left shoulder injuries so as to assess the impairment of the body function, namely the left shoulder, I would not be in a position to make findings as to what consequences flow from that impairment separate to that caused by the effect of the aggravation in March 2018 to the left shoulder. The Plaintiff’s claim in relation to the low back injury is in a similar state. It is further complicated by the injury to the right thumb. The Plaintiff abandoned this aspect of her claim but the material sets out consequences said to arise from this injury.
21 I deny the Plaintiff’s paragraph (a) case.
22 Turning to the Plaintiff’s paragraph (c) case. This part of the case was much more confined. The parties’ material led them to the position where causation was essentially agreed between the relevant practitioners. They all opined that as a result of the motor vehicle accident, the Plaintiff had sustained psychiatric injury. The real issue was determining the extent of the consequences said to be caused by the psychiatric injury. While there was debate between the relevant psychiatrists as to the exact diagnosis, this falls by the wayside given the focus must be on the consequences occasioned by the injury and the determination of what constitutes a serious injury for the purposes of section 93 of the Act. I am mindful that it must be a severe long term mental or behavioural disturbance or disorder in order to satisfy the test. Something must be said about the Plaintiff’s credibility. The Defendant put the Plaintiff’s credibility in issue and argued that she was prone to exaggeration and was unreliable. For example, she was cross-examined about the fact she had told doctors that in the course of the accident the other car was travelling at up to 170 km/h,[26] when in fact it had always been listed as 50 km/h. The Plaintiff was argumentative and at times not responsive to these questions.[27] In cross-examination when faced with this discrepancy she retreated to a position that she simply didn’t know but might have suggested that the speed of the vehicle was up to 150 or 170 km/h.
[26]See the report of Mr Epstein dated 29 January 2018 at PCB 118-128, Mr Paoletti PCB 109
[27]T 29-30
23 It was also put to her that she had worked in 2014 for a period of about 10 days and received $700. She denied this. She was then shown a group certificate indicating that she had been paid by particular café. She denied any such work and payment. She denied knowing the location of the café. She did know the café owner, however. The work was small and the wages were not great. It was an event which occurred over six years ago and was of no great moment. However, the Plaintiff absolutely denied any work whatsoever. I find it likely that she did some work, it was not for a long period of time and it was likely that she had forgotten about it. However, the way that she gave evidence indicated that she was unwilling to concede when faced with fairly categorical evidence on these specific points. However, overall, I formed the view that she was an honest witness who attempted to give accurate answers.
24 Her affidavit material talks about the impact the psychiatric injury has had on her.
25 The starting point is that she complained of being shocked by the accident immediately after it occurred. This is confirmed in the claim form of September 2012.[28] It is true that her treating doctor in his report of 15 April 2014 did not mention any psychiatric problems.[29] However, shortly afterward in the report of Dr Paoletti he recorded that she had flashbacks, depressed mood, PTSD and an adjustment disorder.[30] There is then little in the treating doctor notes indicating problems or treatment. By mid 2017 her psychiatric condition was noted to be worsening.[31] In mid 2018 her treating doctor referred her to a specialist psychiatrist and began her on Efexor. That referral did not seem to immediately take effect and it was only in mid-2019 that she began seeing psychiatrist Dr Kochar. She remains under his care, seeing him once per month.
[28]PCB 26
[29]PCB 82
[30]PCB 110-111, 114
[31]PCB 208
26 Dr Kochar’s view is that she has depression and is demoralised.[32] He commenced her on Zoloft 100 mg. He considered her to have symptoms of PTSD and an adjustment disorder.[33] She remains on Efexor and Ativan. He considered she was moderately to severely incapacitated in respect of personal, social, domestic, and recreational activities. This is very similar to the opinion of Associate Professor Doherty.[34] Dr Epstein has a different diagnosis, being that of PTSD and chronic adjustment disorder with mixed anxiety and depressed mood. Arguably this is a more severe diagnosis. Given the concurrence of opinion between the treating psychiatrist and Associate Professor Doherty, I would prefer their opinions. The treating psychiatrist remains in a unique position to formulate his diagnosis and opinion given the longevity of his treatment of the Plaintiff. This is a significant factor which goes toward accepting that opinion. As mentioned earlier however, what is more critical are the consequences of that diagnosed mental or behavioural disturbance or disorder .
[32]PCB 87
[33]PCB 99
[34]PCB 187
27 I find those consequences to be almost universally accepted between the practitioners. Relevantly, there is a need for ongoing medication being Zoloft, Ativan and Temaze.[35] There is a need for ongoing psychiatric therapy provided by Dr Kochar and this need is supported by Dr Epstein. These two treatment modalities will continue for the foreseeable future. There is a long-standing history of nightmares and insomnia. Such sleep disruption over 8 years is very significant, I find. There are flashbacks and intrusive thoughts[36] occurring regularly each week. Overall, her past history gives good guidance to her likely future course. In combination with the medical opinion I find her condition is long term.
[35]PCB 181 Report of A/P Doherty
[36]PCB 158
28 The effect that these matters have had are set out by the Plaintiff in her affidavits. They note that the Plaintiff now has a much reduced capacity to socialise, or even entertain at home. She remains inside the home for 3-4 days at a time. Even going out in a car is anxiety inducing and causes her great distress. Given the limits already imposed upon her by epilepsy – inability to work – this is a significant curtailment of these pleasurable pursuits. However, this reduced capacity is partly a result of the physical situation that the Plaintiff finds herself in. Her daughter in fact seems to attribute her inability to be active around the home to her physical state.[37] She does however confirm the Plaintiff’s evidence to the extent of the insomnia and the depressed state that she is in[38]. She also confirms that the Plaintiff remains very nervous when being driven to appointments and the like.
[37]Affidavit of Sally Chaban sworn 21 January 2020 at PCB 16 at [9]
[38]Ibid at PCB 17 [13]
29 While the Plaintiff’s situation may not be as florid as some cases, the High Court in Katanas made it clear, in their approval of the Court of Appeal’s majority holding, that it is the consequences for the individual Plaintiff that must be assessed, rather than where along a spectrum of cases the Plaintiff’’s claim falls, that determines the issue.
30 There is no bright line to delineate this case from others. Each turns on its own facts and circumstances. The long term sleep deprivation, flashbacks and the confinement to the home are very significant factors to my mind. Here weighing the diagnosis, symptoms and the consequences Ms Kehr-Bek describes, accepted by medico legal practitioners and her treating psychiatrist, result in a finding that she suffers from consequences which can be described as severe. I find that she has sustained a serious injury within the meaning of paragraph (c) for the purposes of section 93 of the Act.
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