Khmelevsky v TAC
[2009] VCC 21
•5 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-04041
| BELLA KHMELEVSKY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15, 16, 27 & 28 October 2008 |
| DATE OF JUDGMENT: | 5 February 2009 |
| CASE MAY BE CITED AS: | Khmelevsky v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0021 |
REASONS FOR JUDGMENT
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Catchwords: s.93 Transport Accident Act 1986 – multiple accidents – serious injury – brain
injury
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr I Freckelton SC | Henry Carus & Associates |
| Ms J M Forbes | ||
| For the Defendant | Mr C Blanden SC | Solicitor to TAC |
| Mr B Anderson | ||
| HER HONOUR: |
INTRODUCTION
1 By originating motion filed on 12 October 2007, the plaintiff seeks leave to bring proceedings for damages in respect to the injury suffered by her as result of a transport accident on 18 October 2001 (“the first accident”).
2 The application before me is complicated by the fact that the plaintiff suffered further and extensive injuries (which apparently included head injury, skeletal and soft-tissue injuries and Post-Traumatic Stress Disorder) as a result of another transport accident on 13 July 2004 (“the second accident”). In respect to these injuries, the Transport Accident Commission determined that the plaintiff’s degree of impairment was less than 30 per centum but was nevertheless satisfied that her injury was a “serious injury” and pursuant to sub-s.93(4) of the Act on 30 August 2007 it granted a serious injury certificate.
3 The application is made pursuant to s.93 of the Transport Accident Act 1986 (“the Act”). Sub-section 93(6) prohibits me from giving leave unless I am satisfied that the injury in relation to the first accident is a serious injury which exists at the date of my determination of this application for leave (see Swannell v Farmer [1999] 1 VR 299 at 310).
4 Relevantly, sub-s.93(17) defines “serious injury” as:
“(a) serious long-term impairment or loss of a body function; or (b) …; or (c)
severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) …”
5 Serious injury is determined by considering the consequences of an injury- related impairment or loss of body function or mental or behavioural disturbance or disorder.
6 In opening the plaintiff’s case in accordance with sub-s.93(17) of the Act, her Counsel described the serious injury on which the plaintiff relies as arising under –
(i) paragraph (a), that is, serious long-term impairment or loss of function of the brain; and (ii) paragraph (c), that is, severe long-term mental or severe long-term behavioural disturbance or disorder comprising depression, anxiety, Post-Traumatic Stress Disorder and phobias. 7 Nevertheless, allowing for the way in which the plaintiff ran her case and Senior Counsel’s closing submissions, it became apparent that the plaintiff’s primary submission was that the consequences of brain injury (that is probable nerve cell injury) suffered in the first accident (including some allowance for her mental response to her physical impairment) fell to be determined under paragraph (a) of the definition or, alternatively under paragraph (c) if the plaintiff’s mental response was the dominant cause of these consequences. On either approach it was submitted that the plaintiff had met the appropriate test.
8 Relevantly, as far as I can tell should she succeed under paragraph (a) of the definition, no part of Counsel’s closing submissions addressed any further application under paragraph (c) in respect to any discrete non-secondary mental impairment from, for instance, Post-Traumatic Stress Disorder. In part I expect that this was because if the plaintiff’s brain injury is “serious” in accordance with the test under paragraph (a), until the intervention of the significant mental trauma caused by the second accident objectively speaking the consequences of for instance any Post-Traumatic Stress Disorder could not fairly be described as ‘severe’. I will say more about this aspect of the application in due course.
9 Under paragraph (a) the consequences relating to pain and suffering and pecuniary disadvantage of any brain injury must be both long-term and serious to the plaintiff, that is, when regard is had to these consequences the brain injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked” (see Humphries v Poljak [1992] 2 VR 129, 140).
10 Whereas under paragraph (c) the consequences of the mental or behavioural disturbance or disorders to the plaintiff must be both long-term and “severe”, the latter being a word which connotes something “of stronger force” than the word “serious” (see Mobilio v Balliotis [1998] 3 VR 833, 834-5 and 846).
11 In this case where the injury suffered has produced physical and mental consequences, sub-s.93(17) requires me to determine whether the appropriate test arises pursuant to paragraph (a) or (c) of the definition of “serious injury”.
12 The relationship between paragraphs (a) and (c) of the definition of serious injury has been explained by the Court of Appeal in Richards v Wylie (2000) 1 VR 79 where it was found that the principal cause of the plaintiff’s symptoms was not physical impairment from whiplash injury rather it was the plaintiff’s mental disturbance or disorder suffered as a result of a transport accident.
13 Relevantly, the Court of Appeal said:
(a) per Winneke P at pages 87-88 – “…Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”; and
(b) per Chernov JA at page 90 – “It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff’s condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para. (a) is appropriate because the plaintiff’s relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long-term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’ to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff’s condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff’s or mental behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff’s condition falls to be determined by reference to the criteria in para.(a) or (c)…”
14 It follows that if the consequences of brain injury are predominantly mediated by mental factors rather than any organic impairment from the injury suffered in the first accident, the application must be determined under paragraph (c) of the definition (see also West v Pac-Rim Printing Pty Ltd [2003] VSCA 68 at paragraphs 26 and 27).
15 At hearing the defendant’s Counsel conceded that the plaintiff probably suffered a “minor” brain injury and a “minor” psychiatric reaction following the first accident but argued that neither of these injuries are responsible for the predominantly psychiatrically or psychologically mediated consequences of brain and psychiatric injury of which the plaintiff currently complains.
16 It follows from this that consideration must be given to what the evidence discloses about the plaintiff’s condition before and after the supervention of each accident, and the injury and consequences caused by each accident must also be identified.
17 According to the plaintiff, in the three and a half years between the first accident and the second accident the symptoms of her brain injury and any injury to her psyche endured and were temporarily exacerbated (or aggravated) by the second accident. In other words, injury suffered in the first accident was a cause of consequences that included for example cognitive deficits and symptoms of Post-Traumatic Stress Disorder which were temporarily aggravated by the second accident and (without differentiating between the injuries suffered) the Transport Accident Commission attributes these consequences to the second accident in respect to which it has granted a serious injury certificate.
The evidence called and tendered
18 At hearing, subject to some points of clarification, the plaintiff adopted the content of two affidavits sworn by her on 7 July 2008 and on 10 October 2008 respectively. These were tendered and the plaintiff was cross examined. She also tendered an affidavit sworn on 29 July 2008 by a former Unit Manager at the Montefiore Jewish Care Centre, Svetlana Polianskaia, who was also cross-examined by the defendant.
19 In addition to these affidavits, the plaintiff tendered from the Joint Court Book, medical reports of Dr Lebedev, Dr Goloub, Professor Krapivensky, Dr Walton, Mr Grossbard, Dr Frei, Dr Hjorth and Mr Fogarty. Other documents tendered by the plaintiff from the Joint Court Book included extracts from the records of The Alfred Hospital, Montefiore Homes – Jewish Care and St Kilda South Medical Clinic Pty Ltd, a ‘Claim for Compensation’ form, a Transport Accident Commission Payment Summary Report, letters of instruction to Dr Hjorth, a copy document titled ‘Wage Records’ and an ‘Outline of Plaintiff’s Submissions’.
20 From the Joint Court Book, the defendant tendered medical reports of Dr Lebedev, Dr Walton, Dr Kaplan, Dr Hjorth, Dr Gibbs, Professor Davis, and extracts from the records of Montefiore Homes – Jewish Care and St Kilda South Medical Clinic Pty Ltd. Extracts from a report by LKA Group Investigations, a Transport Accident Commission ‘Payments Summary’ report, and letters of instruction to Dr Hjorth were also tendered alongwith a bundle of documents from the Mayfield Education Centre, bundle of Tax Returns, ‘General claim for compensation’ form, ‘Forensic Accounting Advice to TAX lawyer’ document and a letter of instruction to Dr Kaplan. The defendant called no evidence.
21 The plaintiff said that through study and work she had become fluent in Russian, English and Hebrew (which included fluency in Hebrew medical terminology) but that soon after the first accident (and this was corroborated by Ms Polianskaia) her facility to communicate in languages such as English deteriorated. Consequently despite demonstrating, both through her affidavits and her responses in cross-examination, an understanding of English, the plaintiff gave evidence and was cross-examined with the assistance of a Russian speaking interpreter.
22 The plaintiff impressed me as a witness of truth who made an earnest and apparently sincere effort to recall events and facts relevant to the determination of this application. However, as the application relates to a brain injury, the consequences of which include impaired memory and powers of concentration, in the absence of corroboration from, for instance, family members or friends, the defendant questioned the reliability of the plaintiff’s evidence generally.
23 Nevertheless, one of the unusual features of the plaintiff’s presentation was the fact that despite her limitations which, as I have already said, apparently include a reduced facility to communicate in English (a language in which the plaintiff comfortably communicated prior to the first accident) the plaintiff, a hitherto high functioning and accomplished individual, provided a detailed and mostly consistent account to treating and examining doctors of her history and symptoms before and after both accidents. This, the independent evidence from Ms Polianskaia, and the plaintiff’s earliest hospital and medical records, have persuaded me that despite deficits in the plaintiff’s memory her evidence was generally credible and reliable.
24 In circumstances where close family members and a number of treating doctors did not provide evidence, I was invited to infer that had it been available, their evidence would not have assisted the plaintiff’s application. I did not accede to this request for the following reasons:
(a)
the defendant failed to cross-examine the plaintiff about these omissions;
(b)
the evidence that progressively in the years since the first accident the plaintiff has become estranged from her close family members;
(c)
some of the treating doctors to whom the defendant referred in passing did not treat the plaintiff in respect to any injury suffered in the first accident (as for example, Professor Storey and the doctors who treated the plaintiff for diplopia);
(d)
having regard to the material from the Alfred Hospital which clearly establishes the nature and extent of the symptoms reported, the diagnoses and the course the investigations and treatment took between October and late December 2007 I was not persuaded that the failure to obtain a report from General Practitioner Dr Levanda (whom at hearing the plaintiff confirmed had been consulted by her during the period she was also treated as an outpatient at the hospital) related to any concern that his evidence would not advance her case; and
(e)
Neurosurgeon, Mr D’Urso’s reports concerning the limited period over which he investigated the plaintiff’s complaints are contained in the Alfred Hospital materials.
The plaintiff’s background
25 The relevant content of the plaintiff’s first and very detailed affidavit is summarised in the following paragraphs.
26 The plaintiff is 64 years of age having been born in the former USSR on 18 November 1944. The USSR was her home until the plaintiff migrated first to Israel in 1990 and then, at the age of 54, in 1999 to Australia.
27 The plaintiff, who now lives alone, is married with a son and two grandchildren having, she said, since the first accident, become separated from her husband of some 40 years and alienated from the other members of her immediate family including it seems her aging mother.
28 Whilst living in Russia the plaintiff qualified in ophthalmology and worked in her profession before she migrated to Israel where she studied Hebrew and undertook further training which led to recognition of her specialist qualification and she worked in her profession until she and her husband (whom she met whilst they were both studying medicine and married at the age of 22) followed their only son to Australia because they wanted to be close to their grandchildren.
29 That she was previously a central member of a close-knit and functional family unit is also evident from the fact that the plaintiff’s elderly mother followed them to Australia where, prior to the first accident, she was cared for and assisted by the plaintiff in the plaintiff’s own home.
30 Amongst other things the plaintiff presented as a highly intelligent woman who was justifiably proud of her history of achievements both in her education and in her medical career, the latter of which she said she changed after her arrival in Australia. That is to say, consistent with her desire to spend time with her family, the plaintiff decided not to undertake the “significant level of further study and training” required for recognition of her specialist qualification in Australia. Instead she opted for a TAFE course in leisure activities for the elderly at the Mayfield Education Centre and, from 1999, obtained a permanent position as an activities co-ordinator at the Montefiore Jewish Care Nursing Home where (although in her first affidavit the plaintiff claimed to have resigned in April 2004) on the evidence before me the plaintiff remained working until she was injured in the second accident.
31 Apart from her intellectual achievements, her linguistic skills and her close family relationships, in her first affidavit the plaintiff described diverse pre- accident interests such as sewing, knitting, reading (in part to enhance her English language skills in which during cross-examination she said she was least fluent) and listening to classical music and opera (and regular attendances at performances).
The first accident
32 On 18 October 2001 the plaintiff was a rear seat passenger in a vehicle driven by her husband. To avoid a collision with another vehicle travelling in the wrong direction at a roundabout, their vehicle swerved suddenly which caused the plaintiff’s head to bump the window, an impact she described as “very strong” and which left her with a bleeding laceration to her head.
33 In paragraphs 42, 43 and 44 the plaintiff explained the events immediately following the first accident stating:
“42 … I did not feel well and my husband wanted to take me to the hospital. I did not want to go to hospital and instead asked that my husband just take me back home. I felt nauseas that evening and vomited.
43. I did not feel well the next morning either, but nonetheless I attempted to go to work. I felt quite unwell and was not coping well. I fainted at work and was then taken to the Alfred Hospital.
44. I stayed at the hospital emergency department for approximately 12 hours and underwent numerous tests. I was eventually told that I had sustained a concussion and whiplash injury. I was placed in a collar and sent home.”
34 In paragraphs 45, 46 and 54, supplemented by paragraphs 2 and 4-7 inclusive of her second affidavit, the plaintiff described her post-first accident physical and psychiatric symptoms in the following words:
“45. As a result of the accident on 18 October 2001, I now suffer the following physical symptoms:
a) Neck stiffness b) Pain in the neck c) headaches d) Pain in the right upper limb (including the hand); e) Weakness in the right upper limb (including the hand); f) Dizziness and vertigo; g) Problems with balance and body awareness; h) Reduced concentration span; and i) Reduced memory.
… 46. As a result of the accident on 18 October 2001, I suffered the following psychiatric symptoms:
a) Depression b) Anxiety c) Fatigue; d) Irritability; e) Post-traumatic Stress Disorder; f) Road and driving phobia; and g) Sleep disturbance.
And in her further affidavit:
2. I refer to paragraph 45 of my previous affidavit dated 7 July 2008 (July Affidavit). where I depose that as a result of the first accident I suffered physical symptoms of: (f) dizziness and vertigo; and (g) problems with problems and body awareness (Symptoms)
…
4. After the second accident these symptoms got worse but eventually returned to the same level as it was before the second accident. I continue to experience these symptoms around 1 to 2 times a week, where sometimes I fall and other times I do not.
5. This problem has stayed constant until recently where over a period of 2 weeks it occurred 4 times a week.
6. I felt that my dizziness is getting worse and I went to see my General Practitioner, Dr Valisy Lebedev to address the issue. Dr Lebedev referred me to see Mr Simon McCaulay, physiotherapist, and I have gone to see him.
7. Over these last 2 weeks, my dizziness has only occurred 1 to 2 times a week, with a fall occurring once a week.” [sic]
35 As to the impact of the injury following the first accident on the various facets of her life, the plaintiff described:
(a)
difficulty in managing household tasks which included an inability whilst using her right upper limb to complete “precise tasks” as for instance in meal preparation, cleaning and personal hygiene with frequent spills, knocking objects over, dropping “things” and bumping or cutting herself;
(b)
being irritable and depressed about her situation and future as part of which she commenced arguing with her husband, son and mother;
(c) a sense of failure and anger because she required others to help her; (d)
an inability to the extent and in the manner she had previously done to assist her elderly mother and a loss of tolerance which caused arguments. Following the second accident this has apparently led to her mother’s removal to live with the plaintiff’s son and his family;
(e)
her loss of physical and personal independence within her family which was a source of frustration and anger and led to a deterioration in her marriage and at first a tense and hostile separation in the same home;
(f)
grief, loneliness and loss of self-esteem associated with the plaintiff’s loss of family life and support;
(g)
a phobic reaction to using roads and driving which increased the plaintiff’s dependence on her son and husband for transport;
(h)
as a consequence of her poor balance, unease and vulnerability in public places which led to a lonely and isolated life at home;
(i) a reduced level of mental functioning in that “she found it difficult to learn new things and understand new or complex concepts. It was harder for me to engage in intellectual conversation and my concentration span had reduced. I previously used to enjoy reading and learning English but I stopped this because I could not maintain the concentration. I also stopped reading any literature in Russian.”
(paragraph 57);
(j) an inability to engage in her regular pre-accident hobbies such as sewing, knitting and completing Russian crosswords; and (k) difficulty in critiquing and identifying classical music. 36 Ms Polianskaia presented as a credible independent witness who described herself as a former colleague with no ongoing relationship with the plaintiff. In her affidavit and her responses to cross-examination Ms Polianskaia made very clear that in the workplace the plaintiff was valued, loved and admired and that one of her strengths was her ability to speak with residents who hailed from Israel and Russia. In describing the difference she noted in the plaintiff following the first accident and prior to the second accident (and subject to objection to some aspects of her affidavit on the grounds of hearsay), Ms Polianskaia relevantly said:
“12. When Bella eventually cam back to wok after her motor vehicle accident in October 2001 she was still recovering and I noticed quite a few changes in her ability to perform her duties. Bella tried to do her best however she was unable to complete all of her normal duties and tasks. [sic]
13. I know that Bella complained of feeling dizzy and once she fell over in the carpark. I had to wash and dress her scratched knees and elbows. I asked her what happened and she said that she had lost her balance and just fallen over.
14. I noticed also that Bella appeared to have trouble with speaking languages and she sometimes mixed her languages. For example she may speak Russian to a resident who could not understand this language.
15. Bella also appeared to be quite tired and because of her
dizzy spells she was unable to transport the elderly from one
floor to another. We worked around this and other staff helped.
16. I also remember that Bella had some problems dropping
items on occasions, I think she had some problem with her right
hand.
17. Bella is a perfectionist and it was very hard to her not to be able to complete all of her normal duties and tasks at work. I know that she was frustrated with herself and on occasions I saw her upset, emotional and crying at work. It just seemed to be too much for her. Bella was noticeably different after her accident in her mood also and she became less cheerful. Bella had none of these symptoms before the car accident in 2001.
18. …
19. I would say after the car accident in 2001 Bella was able
to complete her basic tasks at work but at a reduced level and for
less hours per week…
20. We did change some of Bella’s duties so that she could keep working. We would organise other staff to assist her with transporting the residents, the activities were changed to more quiet activities instead of dancing or physically demanding activities and we also allowed staff to assist her from other floors or units.
21. When Bella became dizzy we would have to tell her to sit down and rest. She told me that she had fallen over a few times due to lack of balance and feeling dizzy. This was a major problem for her.
22. Bella also had a major problem with her right arm and she
could not grip items firmly or carry things in her right hand. We
had to limit her with lifting items and completing physical duties.
23. It was obvious to me that Bella required support to complete her duties and as I have mentioned staff from other floors would come and help with activities. Due to the fact that Bella was so popular with the residents it was very important to many residents that she was able to work.
…”
37 Allowing for the witness and documentary evidence (which includes the Alfred Hospital records, copy tax returns, the employer’s records, the analysis of the plaintiff’s wages and sick leave records tendered by both the plaintiff and the defendant and the responses given in cross-examination), it is likely that after some weeks off work the plaintiff returned to her pre-accident employment without ongoing injury-related loss of income or reduction in her working hours. Indeed, it is possible that from about July 2002 there was an increase in the part-time hours worked by the plaintiff because notwithstanding her belief that she stopped working on Fridays, the plaintiff appears to have continued working on Fridays, as well working an additional Sunday each fortnight.
38 Nevertheless, as the plaintiff said in paragraphs 70 and 71 of her first affidavit (and this account is generally corroborated by Ms Polianskaia’s evidence), when she eventually returned to work:
“70. … I was suffering from extensive pain (arising both from the car accident and also from frequent fall subsequent to that), poor co-ordination, depression and a reduced concentration span. [sic]
71. I began to find that going to work was a real struggle from both a mental and physical point of view. This caused me distress as I had previously enjoyed my job and had previously considered the nature of the work to be low pressure and relatively easy and relaxing, in contrast to my previous work as a medical specialist in the field of Ophthalmology.”
39 Therefore, apart from the impact her injury had on other facets of her life, the plaintiff also suffered a loss of earning capacity which, had she not worked in a protected environment where her Unit Manager and other staff proactively accommodated her needs, may also have translated into a loss of earnings.
40 According to the plaintiff’s affidavit evidence (para. 83) currently she remains under the care of her treating General Practitioner, Dr Lebedev, psychologist, Dr Goloub, psychiatrist Professor Krapivensky, physiotherapist Mr McCauley and podiatrist Mr Carracher., and (based on particularly the medical reports obtained since 2007) pain relief, anti-depressant and anti-anxiety medications are prescribed for her use, the psychotropic medication having been first prescribed following the second accident.
The second accident
41 I will comment on the plaintiff’s medical treatment and rehabilitation issues following each accident shortly. However, according to the plaintiff, the circumstances (which I took to mean the consequences) she described in her affidavits were all current at the date of the second accident on 13 July 2004 when, whilst attempting to cross the road to catch a bus to work, she was struck by a large four-wheel drive vehicle.
42 Apparently, there was a period of unconsciousness and a journey by ambulance to hospital where the following physical injuries were diagnosed:
“a) Broken left wrist; b) Fractures pelvis; c) Fracture ribs; d) Injury to the mouth and teeth; e) Lumbar spine fracture; f) Hip injury; and g) Broken bone in the right ankle.”
43 According to paragraphs 77 and 78 of the plaintiff’s first affidavit, the physical and psychiatric symptoms she attributes to the second accident are:
“j) Aggravation of my neck pain and stiffness; k) Aggravation of the headaches; l) Pain and stiffness in her left shoulder and wrist; m) Pain and discomfort in the lower back; n) Pain in the right foot; … o) sleep apnoea… … a) Aggravation of all of my previous psychiatric symptoms; b) Binge eating disorder; c) Panic attacks; d) Further lowered self-esteem; and e) Tearfulness”
44 As a sequel to the second accident the plaintiff described:
(a)
increased difficulty in coping with her pre-existing social and family problems;
(b)
an escalation in her interpersonal problems causing both her and her mother to leave the home shared with her husband and a loss of contact between the plaintiff and her son;
(c) being very lonely; (d) an inability to work; (e)
a loss of self-esteem and an escalation in her depression and withdrawal from society.
The cross-examination of the plaintiff and Ms Polianskaia
45 To accommodate Ms Polianskaia she was cross-examined first. However, insofar as it has not already been canvassed, I propose to mention her evidence as part of my summary of the plaintiff’s responses.
46 In addition to explaining why she now required the assistance of a Russian interpreter to give evidence, as part of a lengthy cross-examination the plaintiff was taken to a number of matters which are summarised in the following paragraphs.
47 As to the plaintiff’s income and hours of work, I have already accepted that in the period between the first accident and the second accident it is unlikely that the plaintiff suffered a reduction in her working hours or in her income. However, on the evidence the plaintiff submitted, I think correctly, that the injury suffered as a result of the first accident significantly affected her capacity to work. This much is evident from Ms Polianskaia’s affidavit and her responses during cross-examination which, as I have already noted, indicated that until the second accident she and other staff created a protected work environment to accommodate the plaintiff’s difficulties.
48 Nevertheless, this state of affairs was not reflected in the employer’s records. Indeed, the plaintiff was cross-examined in some detail about her performance appraisal and a self-assessment form completed in July 2007. The first of these praises the plaintiff’s approach to residents and staff and her language and people skills whilst the second (a document apparently completed by the plaintiff), within numerous categories of performance, variously rated the plaintiff as being “excellent” or “good”.
49 When she was taken to these documents the plaintiff clearly had trouble recalling the appraisal process or having completed the self-assessment document. This notwithstanding (and consistent with the evidence from Ms Polianskaia) the plaintiff made the point that because she was valued by other staff in her workplace they sought to assist her with a favourable appraisal and by advising her to indicate that all was “right”. Indeed, fearing that she might lose her job, this was advice the plaintiff said she followed both during the appraisal process and when she completed the self-assessment.
50 As to a 10-day course of TAFE study for a certificate in Leisure and Activities (Aged Services) commenced by the plaintiff at the Mayfield Educational Centre, the plaintiff agreed that following the first accident on 29 and 30 October 2001, she attended this course having, on 25 October 2001, submitted two written assignments which helped her achieve distinctions in the three units she completed.
51 However, in re-examination the plaintiff explained that on the dates she attended the Mayfield Educational Centre following the first accident, she felt “very bad” and “dizzy”, she was “fatigued”, she suffered from “nausea” and that believing she might pass out, she was placed lying down “on some surface”.
52 So far as the two assignments were concerned the plaintiff very plausibly explained that the work for these assignments, was time consuming and had been completed by her prior to the first accident. In these circumstances and allowing for the hospital records for the period October to December 2001, I think the plaintiff’s early attempt to return to her work activities bespeaks a real determination to resume a normal lifestyle rather than evidencing significant improvement in the symptoms of which the plaintiff continued to complain following the first accident.
53 In cross-examination the plaintiff was also questioned about the events and any treatment received by her following the first accident. I will discuss the hospital records in more detail shortly. However, amongst other things, the plaintiff:
(a) said “I think I passed out for a short while”; (b)
said “…I remember that this collar was put and I was sent home and I was wearing it for a few weeks, I think”;
(c) said that she “…was on sick leave for [a] few weeks”; (d)
stated that she saw Dr Levanda at a different surgery before she started seeing general practitioner, Dr Lebedev;
(e) recalled having hydrotherapy and physiotherapy; (f)
stated that her doctor and physiotherapist both recommended that the Transport Accident Commission continued her treatment but to no avail;
(g) agreed that Dr Lebedev referred her to psychologist, Dr Goloub; (h)
agreed that her physiotherapy, hydrotherapy and psychological treatments all ceased by July/August 2002 and blamed this on the Transport Accident Commission’s refusal to continue payments;
(i)
agreed that from August 2002 until July 2004 the only medical treatment received was from Dr Lebedev from whom she said she sought treatment following “…many falls at work outside, at home, I had headaches and neck pain so, yes, I would turn to Dr Lebedev”;
(j)
stated that despite the fact that there was one recorded incident of a fall at work (that is in a carpark on 17 December 2003 which gave rise to a claim for sick leave for 1.5 days) she in fact fell “very often” (evidence which derives indirect support from Dr Lebedev’s written reports and from the clinical notes kept at his surgery at the St Kilda Street Medical Clinic recording, as they do, falls at work on 22 February 2002 and on 10 March 2002);
(k)
agreed that she suffered from a left sixth nerve palsy diagnosed in December 2002 which led to some three months off work. Whilst I note that the plaintiff also said that she received conflicting medical opinion as to whether this condition was related to the first accident, in this application the plaintiff does not assert that this condition arose out of any injury suffered in the first accident;
(l)
agreed that she returned to work from early 2002 and remained working until the second accident;
(m)
was taken through a list of skeletal injuries and agreed that she suffered significant injury as a result of the second accident;
(n)
agreed that following the second accident she was an inpatient at the Alfred Hospital until 19 July 2004 when she commenced a rehabilitation program at Cedar Court until her discharge on 18 September 2004.
54 As to the extent of any physical incapacity prior to the second accident, the plaintiff was taken to the Cedar Court Inpatient Discharge Report dated 18 October 2004 in which it was recorded that prior to the second accident the plaintiff was “…independent in all personal care tasks, domestic and
community activities of daily living. She was driving and was employed in the
educational department of a St. Kilda nursing home on a part time basis.”55 Having regard to her medical history, which included treatment for dizziness, vertigo and falls at work, not to mention Ms Polianskaia’s evidence, I found credible both the plaintiff’s denial of the truth of this report and her explanation, that because of the dangers associated with her medical condition, following the first accident, she had not driven prior to the second accident.
56 The plaintiff was also taken to a copy of a “Claim for Compensation under the Transport Accident Act 1986” form dated 15 July 2004, apparently signed by the plaintiff and a witness, Dora Papatheodorou, whose identity is unknown. The plaintiff, who said her son “was handling the matter”, acknowledged that she signed this document although she also said that it had been completed by others who were presumably responsible for some of the entries which were typed and others which were handwritten.
57 Clearly some of the information provided in the form (in for instance items 33 and 34 where the form asked for information about earlier conditions and treatment for previous injuries and conditions) is wrong. However, allowing for the context in which the document is said to have been completed, I was not satisfied that the plaintiff was responsible for providing, particularly, the responses which are inconsistent with her having suffered and having been treated for injury relating to the first accident some three and a half years prior to the second accident.
The medical evidence from treating doctors
58 As I have already mentioned, following the first accident the plaintiff chose to go home. Nevertheless, the Alfred Hospital material confirms that the next day she attended the hospital reporting, amongst other things, a loss of consciousness “for minutes”, vomiting three times overnight, “mild numbing” and “weakness” of her right hand, “headache+++”, “nausea”, “dizziness” and “neck pain”.
59 The record also shows that on 19 October 2001 the hospital conducted a number of investigations which included a cervical spine x-ray, CT brain and cervical and upper thoracic spine scans. The results of these examinations were all reported as being normal, as was the result of an MRI scan of the plaintiff’s cervical spine which reported:
“1. No evidence of acute cervical spine injury. 2. Degenerative changes at C3-4 disc level result in a mild
kyphos with no significant spinal canal or neural foraminal
narrowing.”
60 Doing the best I can with the records tendered, it appears that the hospital fitted the plaintiff with a “Phili Collar”, prescribed pain relief and anti-nausea medication and referred the plaintiff to the Paul D’Urso Neurosurgery Outpatient Clinic for review on 31 October 2001.
61 The notes made on 19 October 2001 and the copy correspondence forwarded to the plaintiff’s general practitioner, Dr Levanda, between 31 October and 5 December 2001 by both Fellow of the Department of Neurosurgery, Saman Wadanamby, and Consultant Neurosurgeon, Mr D’Urso, indicate that after 19 October 2001 their focus shifted from investigation of any brain injury to management and further investigation of the plaintiff’s right arm symptoms and any spinal injury. During this period further formal investigations included investigation of the functional use of the plaintiff’s cervical spine (lateral flexion/extension) on 14 November 2001 from which it was concluded that “Fracture/dislocation or functional instability has been demonstrated” and a nerve conduction study on 3 December 2001. Relevantly, this reported
“Normal study. There was decreased activity of motor units concommitant [sic] with the decrease in power on EMG testing suggesting a
supraspinal/supratentorial cause for decreased power”.
62 The word “supratentorial” is a handwritten insertion in the last mentioned report which, together with the reference to “supraspinal”, indicates that the doctors who undertook this study thought that the cause of the decreased power in the plaintiff’s right limb was probably from an area above the plaintiff’s spine and, as my summary of psychiatrist Professor Krapivensky’s report reveals shortly, this report was one of a number of factors on which she relied to conclude that the plaintiff suffered a severe head injury as a result of the first accident.
63 In any event, on 5 December 2001, Mr D’Urso reported having “thoroughly
investigated her cervical spine with CT and MRI scans which showed no evidence of any abnormality. She has also had nerve conduction studies on the right upper limb which again showed no abnormalities. She is quite tender in the wrist extensors in her forearm. This appears to be more a muscular tenderness type of pain. I have x-rayed her forearm today and this does not reveal any underlying bony pathology.”
64 In this, his final report, Mr D’Urso recommended that the plaintiff receive orthopaedic assessment if her neck and right arm pain persisted. Otherwise he anticipated a gradual improvement and advised a return to light duties from 15 December 2001. Indeed, relying on the Alfred Hospital material (including this doctor’s reports) and the Transport Accident Commission’s record of payments, it is probable that in the period between the date of the first accident and 14 December 2001, the plaintiff was off work for no less than four weeks.
No obvious abnormality. uncertain significance.
65 I note that there are no further reports from Mr D’Urso although allowing for later Alfred Hospital records and other medical reports, it seems that the plaintiff was next treated by him at the Alfred Hospital when in late 2002 she developed what was diagnosed as a left sixth nerve palsy.
66 As it happens, on this occasion the radiologist reporting on a brain scan conducted on 30 November 2002 appears to have compared this study with the earlier study on 19 October 2001 and concluded that:
“Ventricular system and sulcal pattern is within normal limits.
There is no intracranial hemorrhage, mass lesion or collection.
There is a 2mm to 3mm slightly hyperdense focus adjacent to the frontal horn of the left lateral ventricle, but this is present on the previous study of 19.10.01 and its significance is unclear.
There is no cerebral or cerebellar infarct.
The brain stem is difficult to assess on CT due to artefact from the adjacent skull base.
There is a subtle 4mm to 5mm hypodense focus in the region of the left cerebral peduncle, which is only evidenced on 1 slice.
The significance of this is uncertain, as there does appear to be a smaller similar region on the contralateral side.
…
Conclusion:
This area is best assessed with MRI.”
67 MRI and MRA (magnetic resonance angiogram) scans reported on by another radiologist on 5 December 2002 reported “[n]ormal MRI brain and orbits” and “[n]ormal MRA with no evidence of aneurysm”, although, allowing for the focus of this further investigation, it is unlikely that much, if any, attention was paid to the fact that the CT scan results obtained in both October 2001 and in November 2002 pointed to a probable area of brain injury present following the first accident.
68 In any event, following the second accident, in amongst the many investigations of the extensive injury suffered by the plaintiff, a further CT scan of her brain provides evidence of brain injury which the defendant initially argued was caused by the second accident. Unfortunately, only the first page of the radiologist’s report was tendered. However, it relevantly reported damage to the nerve fibres stating:
“Unenhanced scans performed from skull base to vertex and reviewed on brain subdural bone windows. Sulci ventricles and cisterns appear normal. Subtle 4x2mm hypodensity adjacent to the superior aspect of the left frontal horn most likely represents diffuse axonal injury. No cortical contusion or extra-axial haematoma seen. No calvarial or skull base fracture seen…” (CB165N)
69 Accordingly, as my summary of the medial material reveals shortly, some specialists have now accepted that the radiological evidence points to probably brain damage as a result of the first accident. This is so notwithstanding the absence of specialist treatment or further investigation of, for instance, the persistence of the right arm symptoms in the interval between the two transport accidents.
70 This material also shows that, after her discharge as an outpatient of the Alfred Hospital’s neurosurgery clinic, from January 2002 the plaintiff was treated at the St Kilda South Medical Clinic for injuries suffered following the first accident. Indeed, the record tendered from this Clinic demonstrates that from January 2002 the plaintiff made the first of a number of complaints of “vertigo”. This record also indicates that from January 2002 Dr Lebedev (who on 20 March 2003 responded to the Transport Accident Commission’s request for a medial report) was one of the doctors consulted by the plaintiff at this clinic. His report is one of only two reports obtained prior to the second accident.
71 Reporting in 2003 Dr Lebedev informed the Transport Accident Commission, amongst other things, that:
(a) the plaintiff sustained “head injuries to the left side of her head, loss of consciousness, whiplash, concussion”; (b) the plaintiff suffered “from severe and almost daily headaches; severe, frequent dizziness; nausea and neck aches”; (c) when, from 31 July 2002, the Transport Accident Commission stopped paying for hydrotherapy and physiotherapy treatment this treatment ceased; (d) after her hydrotherapy and physiotherapy treatment ceased the plaintiff reported feeling “reasonably well for approximately two months…” before her condition deteriorated. In my view this was a clear indication to the Transport Accident Commission that the general practitioner believed that the plaintiff’s symptoms still warranted treatment; (e) in March 2003 the plaintiff reported “daily neck ache, almost daily headaches, slight dizziness, and occasional nausea. Her blood pressure is higher than normal since the accident and she suffers from
insomnia” (CB34);
(f)
the plaintiff’s treatment consisted of painkilling medication (Panadol and Panadeine Forte), medication to control her blood pressure (a condition the plaintiff did not seek to relate to the first accident) and she reported using a herbal tincture to relax and help her sleep and aromatherapy for relaxation;
(g) the plaintiff’s prognosis was “fair”; and (h)
the plaintiff intended to resume her employment on a part-time basis as of April 2003. However, based on the evidence before me that both before and after the first accident the plaintiff was employed in a part- time capacity, I think that this observation probably relates to the plaintiff’s return to work after treatment for her sixth nerve palsy condition.
72 When Dr Lebedev next reported to the Transport Accident Commission on 15 September 2005 his report was almost entirely directed to the physical and mental injuries suffered and the treatment received following the second accident.
73 Apart from its emphasis on the plaintiff “regaining her pre-accident level of functioning in the community” from my reading of this report it is unlikely that Dr Lebedev intended to address any or the level of any pre-existing symptoms (as for instance the plaintiff’s complaints of vertigo, dizziness or weakness in her right arm) or that he then understood that there was radiological evidence of probable brain damage as a consequence of the first accident.
74 In any event, this report demonstrates that in September 2005, apart from her very significant physical injuries, specialist treatment was sought from psychiatrist, Professor Krapivensky, to address concern about the plaintiff’s mental state and the escalation of “symptoms of depression, anxiety (with
mood liability) and post traumatic stress disorder. It became obvious, that these symptoms had escalated to the point that they have an impact on her day-to-day life, functioning within family and community.”
75 Nevertheless, Dr Lebedev’s last report addressed to the Transport Accident Commission and dated 22 February 2007 establishes that following the first accident the plaintiff continued to report injury-related symptoms, that is:
“The first MVA on 18.10.2001 involved head and whiplash injuries and injuries to Mrs Khmelevsky [sic] right hand. Three months after the accident she returned to work. However she still retained difficulties with balance, which resulted in multiple and frequent falls (some of them were documented in work incident reports, as they happened at her work). Also, Bella’s use and coordination of the right hand remained significantly impaired. She developed a delayed onset of 6th cranial nerve palsy with diplopia on the left side (few months after the accident). Same partially settled after four months.”
76 As her treating general practitioner in this report Dr Lebedev listed her “current” physical and psychological problems as:
“- Frequent headaches.
– Pain in cervical, thoracic and lumbar areas of her spine.
– Significant weakness in both hands (compared to the premorbid functioning), especially her right hand: frequently drops china, cutlery and various objects; cuts fingers on her left hand while cooking; reports a significant loss of fine movement.
- Intercostal neuralgia making it difficult for Bella to lie on her left side
and impossible to sleep on it.
- Sleeping apnoea while sleeping on her right side.
- Dry nasal epithelium with associated frequent nasal bleeding
(especially from her left nostril).- Numbness and pain in Bella’s left thigh after 8-10 minutes walk. Because of this, Bella finds it very difficult to walk even short distances, despite constantly using her walking stick.
- Pain and developing oedema of her right ankle while walking.
- Frequent episodes of drowsiness with occasional falls (both in and outdoors). I frequently observed haematomas and lacerations from these falls while examining Bella.
- Significant deterioration of her memory
- Sleeplessness.
- Frequent tearfulness (with little or no reason at all).
- Total loss of interest in sex.- Constant irritability towards people close to her, including the members of immediate family (relationship with husband and older granddaughter, who is 11 years old, being particular [sic] badly affected).
- Bella still suffers from flashbacks from her second accident and nightmares that wake her up from her sleep (2-3 times per week on average). She finds it impossible to cross the roads on her own and needs someone to hold her hand while doing so. Bella is still scared to use public transport on her own and cannot sit on a front passenger seat while in a car. Even while travelling at the back seat, she frequently visualises the car hitting a pedestrian, which causes her to panic and cry.
- Despite Bella’s best efforts to try and spend more time with people, she’d lost most of her old friends over the last two years. She admits not getting much pleasure from spending time with people and often feels exhausted after trying to do so. Loneliness remains a problem for Bella.”
77 As is evident from the report, Dr Lebedev did not seek to differentiate between the contribution of either accident to the symptoms and consequences described in his report although he clearly accepted that the plaintiff “sustained a very significant trauma with a range of physical and psychological sequelae” after “two major MVAs”.
78 Dr Lebedev’s reports omit any reference to the psychologist, Dr Goloub, to whom the plaintiff was referred for treatment from January 2002. Dr Goloub’s report to the Transport Accident Commission dated 15 May 2003 is the only other report submitted by a treating doctor in the period pre-dating the second accident. Notably, the content of this report is substantially reiterated in Dr Goloub’s last report dated 29 September 2005 in which he also said that following the second accident he saw the plaintiff on only two occasions, because the Transport Accident Commission declined to fund his treatment of the plaintiff whilst she was already receiving psychological treatment from Katerina Mallin at Cedar Court.
79 Dr Goloub’s reports are significant because despite his treatment of the plaintiff being limited to the period between January and August 2002 (that is until the Transport Accident Commission ceased funding ongoing psychological treatment) these reports recorded and unequivocally ascribed complaints and symptoms to pre-existing head, right hand and neck injury, as well as Post-Traumatic Stress Disorder suffered as a result of the first accident. There was also mention of back injury and pain although unlike the plaintiff’s other injuries this was not a condition that appears to have been specifically investigated and treated following the first accident.
80 In respect to the first accident Dr Goloub:
(a)
took a history of head injury and loss of consciousness, a deterioration in the plaintiff’s health, severe dizziness which became so hazardous she could no longer care for herself “in the way that she was accustomed to” and lowered reflexes particularly in the plaintiff’s right hand;
(b) initially recorded complaints of –
• Severe Headaches due to the closed head injury. • Dizziness.
• Depression.
• Road phobia. • Fatigue.
• Sleep Disorder (3-4 hours per night). • Severe Backache. • Concentration Problems. • Memory Problems. • Irritability.
• Relationship problems with relatives due to irritability. • Anxiety.
(c)
diagnosed Post-Traumatic Stress Disorder and in doing so clearly distinguished this from the plaintiff’s “physical disorder” to which he ascribed “[d]izziness, lowered reflexes in right hand, neck aches, headaches, backache, head injury (medical certificates)”;
(d)
established a treatment regime with goals which were designed to, amongst other things, improve the plaintiff’s mental functioning, concentration and memory; and
(e) noted that the plaintiff “experienced some difficulties in performing certain tasks due to her memory and concentration problems as well as lack of self-confidence. It is obvious that the patient had serious difficulties where her concentration and memory were concerned. Bella suffered greatly from fatigue caused by her insomnia and produced complaints about dizziness and severe headaches.”
81 In his 2003 report Dr Goloub also provided the Transport Accident Commission with his opinion as to the plaintiff’s “present state” (I took this to mean as at the time he last treated the plaintiff in August 2002) reporting that:
“At present Ms Khmelevsky’s psychological condition can be described as stabilised. Bella has become able to control her anxiety attacks. Ms Khmelevsky still fears being driven in a car, and has become very distrustful of other motorists. Ms Khmelevsky’s phobia to travel in a motor vehicle has greatly hindered her ability to communicate and socialise with friends and family. It is obvious now that the accident has seriously affected both Ms Khmelevsky’s physical and psychological well- being. Ms Khmelevsky has found it difficult to accomplish everyday activities as her movements are still somewhat restricted and her reflexes lowered.
Ms Khmelevsky often feels lonely and depressed. She has always been an independent self-sufficient woman and fears greatly to lose these aspects of her personality. Bella also experiences guilt when she is unable to complete her housework, which prior to the accident she was able to complete with relative ease. She does not feel as confident as she used to be anymore. She also feels isolated, as she has lost touch with many of her friends due to her irritability and depressive mood…”
82 That Dr Goloub did not then also recommend resumption of treatment probably had more to do with his understanding that funding had ceased than, as submitted by the defendant, a belief that the plaintiff no longer required professional psychological support.
83 Whilst Dr Goloub does not mention any impact the plaintiff’s symptoms had on her employment during the period over which she was treated, in my view the complaints and symptoms recorded by him (and by Dr Lebedev) are consistent with the evidence given by the independent witness, Ms Polianskaia about the deterioration in the plaintiff’s physical functioning, her memory and her level of concentration in the workplace after returning to work in early 2002.
84 Accordingly, whilst Dr Goloub did not have the opportunity to treat the plaintiff after the second accident, having seen her on two occasions his assessment in 2005 that the plaintiff had not recovered from her earlier injuries, and that the second accident “has aggravated her psychological condition, significantly reducing the level of psychological functioning” should be afforded due weight.
Post-second accident treatment and medico-legal reports
85 The other medical evidence tendered on behalf of both the plaintiff and the defendant in this application all relates to treatment or medico-legal assessments obtained following the second accident.
86 Dealing with these in chronological order I note that from December 2004 psychiatrist, Professor Krapivensky, treated the plaintiff on referral from her rehabilitation physician at Cedar Court, Dr Adams.
87 Professor Krapivensky was not required for cross-examination although her reports (only one of which was tendered) were the subject of considerable criticism by the defendant. However, much of this criticism fell away after the plaintiff was permitted to tender further extracts from the Alfred Hospital’s records to which the psychiatrist said she had regard in determining the severity of the head injury suffered by the plaintiff in the first accident.
88 The attack on Professor Krapivensky’s qualification to provide her opinion was not as readily resolved because the report from her contained only a very brief curriculum vitae stating that Professor Krapivensky was an “Accredited impairment assessor”, “Consultant psychiatrist” and “Medical Director, International Institute of Psychopharmacology”. However, the doctor’s letterhead (“Melbourne MediBrain Centre”), the content of the report, the fact that the plaintiff was referred to this specialist by a rehabilitation specialist from Cedar Court, and the consensus amongst the other specialists (including the neuropsychologist who deferred to Professor Krapivensky’s opinion as to the severity of the brain injury suffered) who have administered tests that the plaintiff currently presents with brain-injury-related cognitive deficits, are matters which have helped persuade me that Professor Krapivensky’s expert evidence should also be afforded due weight.
89 The report tendered is dated 23 September 2005, although at page 4 Professor Krapivensky mentions previous reports and speaks of performing a further assessment of cognitive deficits in 2006, which suggests that either the report was made after tests conducted in 2006 or these further tests were conducted before the date of the report. In any event, in this report Professor Krapivensky:
(a)
noted that the plaintiff at first presented to her “with predominant problem of anxiety related to” the second accident;
(b) found that “there were a number of features of (the plaintiff’s) presentation that were more likely related to the first car accident in
2001 when she sustained a closed head injury”;
(c)
based on her interpretation of Alfred Hospital notes sighted by her (an interpretation that is consistent with the extracts tendered from these notes) concluded that the plaintiff suffered “quite a severe concussion”;
(d)
drew support for her conclusions from the reports of “severe headaches, dizziness, vomiting, nausea, vertigo in the short term” and from her neuropsychological evaluation of the plaintiff which established “significant cognitive deficits … in the long term”;
(e)
summarised and explained some of the Alfred Hospital findings on which she relied, as for instance the EMG study (to which I have already referred) which Professor Krapivensky felt was consistent with “severe head injury”;
(f)
accepted (apparently without having had the benefit of the reports made in 2003 by the treating general practitioner and psychologist to which I have already referred) that the plaintiff returned to work notwithstanding her residual difficulties;
(g)
noted the results of the CT brain scan following the second accident reporting likely “diffuse axonal injury”;
(h)
said that when she first examined the plaintiff in 2004 she identified symptoms of “… significant chronic Post Traumatic Stress Disorder; …
heightened generalised anxiety; … lowered mood and features of depression; … significant cognitive deficits; … features of post-
concussion syndrome”. As submitted by the plaintiff’s Counsel, this list generally accords with and suggests a worsening of the symptoms exhibited and noted particularly by Dr Goloub prior to the second accident;
(i) determined (by testing the plaintiff’s neuro-cognitive deficits using Cantab battery of tests and measuring her reading fluency and frontal lobe dysfunction and by testing her spatial memory, her abstract behaviour and her visual memory – tests in which the plaintiff performed at the 30th percentile or lower) that the plaintiff had “very
significant global cognitive deficits, consistent with historical accounts
of two severe head injuries and consistent with symptoms described”;
(j)
confirmed the presence of global cognitive deficits by further testing using Cantab computerised battery of cognitive tests;
(k)
opined that the second accident aggravated the trauma and injury suffered in the first accident leaving the plaintiff with “severe post
traumatic stress disorder, chronic pain syndrome and neurological
deficits”, the latter being “directly attributable to the head injury”. Allowing for the fact that chronic pain syndrome was not amongst the “features” of the plaintiff’s presentation Professor Krapivensky thought were related to the first accident, I understood this to be a probable description of the plaintiff’s condition resulting from the extensive physical injury suffered by her in the second accident.
90 Accordingly, whilst Professor Krapivensky did not specifically differentiate between consequences attributable to head injury and psychological trauma suffered in the first accident or in the second accident, it is plain that she felt that the plaintiff’s history and the investigations undertaken prior to the second accident were consistent with a severe concussion injury. Had she also been given the opportunity to comment on radiological material including the CT scan report obtained during the investigation of the sixth nerve palsy condition in late 2002 (that is, the report in which the radiologist compared the film obtained in October 2001 with that obtained in November 2002) I expect that Professor Krapivensky (as did the defendant’s neuropsychologist, Dr Gibbs, in 2007) may have also accepted that the lesion which was thought to represent “diffuse axonal injury” in the 2004 film had been present from at least the date of the severe concussion injury suffered in October 2001.
91 In these circumstances, it is submitted on behalf of the plaintiff that this brain injury and the plaintiff’s cognitive deficits probably resulted from the first accident, not the second accident.
92 Psychiatrist, Dr Walton, submitted three medico-legal reports to the defendant. The first and last of which (dated 10 October 2005 and 3 May 2007) were tendered.
93 I note that when Dr Walton first examined the plaintiff in October 2005 the reports from doctors treating the plaintiff prior to the second accident were not made available to him. This notwithstanding and no doubt based on the history received, Dr Walton stated:
“This woman has been involved in two incidents where she sustained closed head injuries and it would seem likely that she developed a post-traumatic stress disorder following the first accident, which has been aggravated by the second. Her widespread residual pain at present is also a significant driver of persisting psychological symptoms.”
94 Dr Walton also recommended a neuropsychiatric impairment assessment which was undertaken on behalf of the plaintiff by Professor Krapivensky in 2005 and by neuropsychologist, Dr Frei, in April 2007 and at the request of the defendant by Dr Gibbs in May 2007.
95 Nevertheless, when in May 2007 Dr Walton re-examined the plaintiff, relevantly his reference material comprised two of Professor Krapivensky’s reports, reports made by Drs Lebedev and Goloub and extracts from the Alfred Hospital records, but not reports from Drs Frei and Gibbs.
96 During this examination Dr Walton noted that the plaintiff appeared “more distressed than at the time of” his original assessment, a change he attributed to “the estrangement from her husband, son and grandchildren, although that phenomenon is not entirely independent of the transport accident”.
97 Relevantly, having reviewed the additional medical material and, in particular, Dr Goloub’s report, Dr Walton diagnosed “closed head injury, chronic post traumatic stress disorder” and expressed his opinion that “it is highly probable
that Ms Khmelevsky’s mental state remained much the same as described
above (that is by Dr Goloub in his May 2003 report) immediately preceding the
second motor vehicle accident.”
98 Therefore, from a psychiatric point of view, in May 2007 Dr Walton believed that the plaintiff’s mental state had stabilised and (as submitted on behalf of the plaintiff) he accepted the likelihood that psychologically the plaintiff had returned to the level of mental functioning she had achieved with treatment by Dr Goloub. Nevertheless, without opinions from a neuropsychologist and neurologist, Dr Walton refrained from offering any impairment assessment of the consequences of any brain injury. Rather (excluding any organic contribution) he confined this part of his opinion to an assessment of the plaintiff’s current non-secondary psychiatric impairment (attributing more to the second accident) by stating:
“The relative apportionment of impairment is a difficult exercise in this case due to the multiple contributions to impairment. As best I can judge as far as non-secondary impairment is concerned, there is somewhat more impairment attributable to the second accident due to some protection associated with loss of consciousness at the time of the first accident, the fact that the first accident is now more distant in time and being struck down as a pedestrian as opposed to being involved in a motor vehicle collision likely is more psychologically traumatic. Thus my apportionment is 5% non-secondary impairment attributable to the first accident and 7% non-secondary impairment attributable to the second accident.”
99 Psychiatrist, Dr Kaplan, provided five reports having, at the request of the plaintiff’s solicitors, assessed her between June 2006 and June 2008. I cannot ascertain from his first report the nature of the enclosures received by him from the solicitors and whether when he assessed the plaintiff he was cognisant of Dr Goloub’s earlier diagnosis of Post-Traumatic Stress Disorder following the first accident. This is an important omission because, having taken from the plaintiff a generally consistent history as to both accidents and her symptoms following the first accident, Dr Kaplan opined:
“Mrs Khmelevsky is suffering from a Post-Traumatic Stress Disorder and this condition was probably caused by her second accident and she was probably rendered vulnerable by her first accident. As part of her condition, she experiences intrusive thoughts, flashbacks and recurring nightmares, and she describes avoidance symptoms and hyper-vigilance. She also suffers from symptoms of depression and anxiety which are probably features of her Post-Traumatic Stress Disorder. She experiences phobic anxiety regarding crossing roads and of driving, and has become an intensely anxious passenger. Given the long duration of her psychiatric condition, it is likely to persist for a prolonged and, to some extent, indefinite period of time.
Mrs Khmelevsky’s depression and anxiety are probably also partly related to her physical injuries and resultant disabilities, and these injuries are likely to continue to contribute to her depression and anxiety. The formal diagnosis of her condition would be that of an Adjustment Disorder with mixed anxiety and depressed mood. She describes a range of physical symptoms and if some of the symptoms are deemed by the appropriate medical specialist to not have an organic basis, it would be likely that they would be somatic expressions of her underlying anxiety and depression… I would estimate her psychiatric disability to be of the order of 40% to 50%.”
100 When he re-examined the plaintiff on 23 April 2007, Dr Kaplan apparently had a copy of a report made by Professor Krapivensky in 2006. However, on this occasion Dr Kaplan did not revisit his earlier diagnoses other than to reiterate that the plaintiff continued to suffer from an Adjustment Disorder with mixed anxiety and depressed mood and features of Post-Traumatic Stress Disorder.
101 In correspondence sent in May and July 2007, Dr Kaplan appears to have responded to requests from the plaintiff’s solicitors to comment on Professor Krapivensky’s diagnoses in her reports made in 2005 and 2006 and on Dr Frei’s neuropsychological assessment of the plaintiff in April 2007.
102 As to Professor Krapivensky’s reports, Dr Kaplan said:
“If she does suffer from ‘severe cognitive deficits’, this would be a contributing factor to her depression. With regard to the diagnosis of ‘chronic pain syndrome’ the basis of this diagnosis is unclear from Professor Krapivensky’s report.”
103 Perhaps more significantly, in response to Dr Frei’s diagnoses which I will discuss shortly, Dr Kaplan said:
“Dr. Frei appears to be indicating that Mrs. Khmelevsky’s cognitive impairment is partly related to organic brain damage and partly to her psychiatric condition. Concentration and memory impairment are common symptoms in depression and anxiety and Post-Traumatic Stress Disorder. This appears to be consistent with the history I obtained from Mrs. Khmelevsky when I examined her.” (CB104)
104 Having re-examined the plaintiff on 16 June 2008, Dr Kaplan:
(a) reported that her psychiatric condition had not improved since his last examination “... and she continues to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to her physical injuries and alienation from her family, and her Post-Traumatic
Stress Disorder related to her two traffic accidents ...”;
(b) considered the contribution of each accident and said: “It is difficult to isolate the contribution that Mrs. Khmelevsky’s first accident on 18th October, 2001 has made to her psychiatric condition. With regard to her Adjustment Disorder, the contribution to her psychiatric condition will be directly proportional to the contribution that accident has made to her physical injuries, and an opinion regarding this matter would need to be obtained from the appropriate medical specialists. With regard to her Post-Traumatic Stress Disorder, she probably did not develop this condition until after her second accident in 2004, however, she was probably sensitized by her first accident and as a result of that first accident developed phobic anxiety regarding driving and had difficulty with her concentration. In addition, she became depressed and was referred to a psychologist. In addition, she reports that she was only able to return to work because she received considerable support and was given leeway by her employers because of her physical and psychological state.”
105 Therefore, in the absence of evidence of the contribution made by the first accident to any physical injury (which we know from a comparison of the brain studies made probably included brain damage), not surprisingly Dr Kaplan refrained from commenting on the extent to which the plaintiff’s mental response to physical injury contributed to her psychiatric condition.
106 However without the benefit of particularly Dr Goloub’s earliest report (in which amongst other things in 2003 he proffered a diagnosis of post traumatic stress disorder) I formed the view that Dr Kaplan’s opinion that this disorder first developed following the second accident was probably not well-founded.
107 It is common ground that as a result of the second accident the plaintiff suffered multiple skeletal and soft-tissue injuries. The medical material includes orthopaedic assessments made by Mr Grossbard in February 2007 (at the request of the plaintiff’s solicitors) and Mr Fogarty in June 2007 (at the request of the defendant). In relation to the first accident, these doctors’ reports generally disclose a consistent description of the plaintiff’s symptoms. Both specialists proceeded on the basis that the plaintiff suffered a head injury and cervical spine injury as a result of the first accident, but neither had regard to the possibility that the plaintiff also suffered brain damage. Indeed, drawing on Dr Goloub’s report, Dr Grossbard determined that:
“As a result of the first motor accident in October 2001, this lady suffered an injury to her cervical spine as well as a minor head injury. This left her with ongoing neck pain and headache which has persisted since that time, although it may have been somewhat aggravated by the second accident. Irrespectively, I believe that most of the neck problem does arise as a result of the initial accident. I also note from Dr. Boris Goloub’s report that this lady did suffer with dizziness and vertigo as well as memory problems and nervousness and irritability prior to the second incident. He also refers to depression, problems with concentration and back ache at that stage. The neck pain has persisted and is probably largely the result of the first accident.
…
This lady has had multiple injuries of a bony and soft tissue nature. There is a host of diagnoses as listed in the reports but my concern relates to her left upper limb, left thigh and pelvis, lumbar spine, cervical spine and right ankle. Despite this number of injuries, I believe many of this lady’s ongoing problems relate to her loss of balance and her associated psychological disturbances. These are best dealt with by a specialist in psychiatry…”
108 In Mr Fogarty’s report, whilst he treats the plaintiff’s physical injuries as significant he clearly believes that “the chief cause” for the plaintiff’s inability to return to work is her “significant psychological stress reaction”. However, Mr Fogarty also said that the plaintiff’s:
“1. ...
2. Pre-existing head and neck injuries sustained in the first accident (18/10/01) may have influenced the course of the current injury resulting from the accident of 14 July 2004.
3. The post-traumatic syndrome arising since the second
accident does influence the course of the current injury state.
4. ...”
109 In all, allowing for his specialty, my Mr Fogarty’s position is best described as favouring the view that impairment from any orthopaedic or soft-tissue injuries suffered in either accident is probably not the main cause of the plaintiff’s loss of mobility or the reduction in her domestic and leisure activities. In these circumstances, notwithstanding the defendant’s submission to the contrary, his evidence (and indeed the evidence of the orthopaedic specialists in general) does not provide meaningful support for opinions expressed by other specialists, such as Professor Davis, who argue that psychological factors are predominantly responsible for the assessed cognitive deficits.
110 Two reports made by Dr Frei at the request of the plaintiff’s solicitors in April and in May 2007 were tendered. The first includes a history taken from the plaintiff (which generally accords with that obtained by Dr Goloub) and the results of the tests administered by Dr Frei to investigate the plaintiff’s cognitive functioning.
111 Having administered a number of tests, which produced a performance IQ that indicates that about 96 percent of people the plaintiff’s age would expect to obtain a higher score, Dr Frei opined:
“Bella Khmelevsky suffered two closed head injuries, one in each accident, both head injuries being s mild in degree as characterised by the duration of amnesia that she reported. [sic]
A CT brain scan is mentioned in reports and this appears to have been carried out following her second accident and is said to have revealed an irregularity of the cortex on the right side and hypodensity adjacent to superior aspect of the frontal horn, most likely to represent diffuse axonal injury…
After the first accident she was said to have a wide range of symptoms… including memory and concentration difficulties. She returned to work part time a few months after this accident. In Dr Goloub’s view the second accident aggravated her psychological condition. Her son voiced the opinion that her condition had been deteriorating since 2004.
Given her background as a medical specialist Mrs Khmelevsky would have functioned well above average level pre-accident. I did not assess her verbal skills as she was not sufficiently fluent in English and I have no Russian. On non-verbal tests, slowness was the main feature of her performances. Her span of attention was grossly reduced also.
The extent of the deficits that she demonstrated was far greater than could be explained by her head injuries alone. By virtue of her head injuries, that is in terms of damage to her brain, she probably has incurred mild to moderate reduction in her general cognitive efficiency. This can be regarded as stable and permanent. The psychological component of her condition – depression, anxiety, post traumatic stress disorder, road phobia – is further reducing her cognitive efficiency. Her prognosis in terms of these symptoms I will leave to your psychiatric experts; but considering her condition as I saw it almost three years post accident, I would not expect her to work again. Her personal relationships have been badly damaged and all facets of her life affected.”
112 It seems that in May 2007 the plaintiff’s solicitor forwarded for comment reports from Professor Krapivensky which drew Dr Frei’s attention to both the EMG findings after the plaintiff’s first head injury and, having seen these findings Professor Krapivensky’s conclusions, in response to which Dr Frei said:
“…I note that in the Summary and Opinion section of my report I have concluded that this head injury was mild in degree as judged by duration of the attendant amnesia. I was also influenced by the report that she went home after the accident and that she returned to work after a time. However, having reviewed these reports, I bow to the judgment of the Alfred Hospital and Prof Krapivensky that the head injury that Mrs Khmelevsky suffered in the first accident is more correctly categorised as severe.”
113 From my reading of her reports I think it unlikely that Dr Frei accessed the Alfred Hospital materials independently of Professor Krapivensky’s report and because of this Dr Frei may not have understood that Professor Krapivensky’s opinion that the plaintiff’s head injury was severe in part represented her interpretation of the content of the notes she sighted, rather than an opinion expressed in these notes. In any event, as with a number of the other specialists, it is unlikely that Dr Frei was given to understand that there was evidence that the brain lesion identified in the study in 2004 had already been noted in earlier studies and was probably present in October 2001.
114 However, as to the current cause of the plaintiff’s cognitive impairments seen on formal testing (that is the results of tests conducted by Professor Krapivensky and Dr Frei, which Dr Frei said represented “a massive drop in ability for a person of above-average premorbid intellect…”), Dr Frei also said:
“I remain of the opinion that some, probably most, of the cognitive impairment seen on formal tests is attributable to Mrs Khmelevsky’s nervous condition. This does not alter my opinion that Mrs Khmelevsky is cognitively impaired and most unlikely ever to work again; and I agree with Prof Krapivensky in her opinion that Mrs Khmelevsky’s complaints and condition are genuine.”
115 The difference therefore between the treating psychiatrist and the examining psychologist is that Professor Krapivensky views the dominant cause of the significant cognitive deficits shown on her testing as organic in origin whereas the neuropsychologist, who assessed the plaintiff on one occasion (probably without accessing the Alfred Hospital materials or reports of historical radiological studies) believes these deficits are mostly caused by psychological factors.
116 The test in relation to the consequences of any Post-Traumatic Stress Disorder diagnosed following the first accident has always been under paragraph (c) of the definition of “serious injury”. However, if this neuropsychologist’s opinion is accepted, the defendant submits (and this is accepted by the plaintiff) that the test to determine whether any brain injury is a serious injury must also arise under paragraph (c) of the definition.
117 Nevertheless, allowing in this application for Professor Krapivensky’s access to and consideration of a far greater range of relevant material and her role as a treating psychiatrist, I think her opinion should be preferred because it probably has a more solid foundation.
118 Three reports prepared by neurologist, Mr Hjorth, in April and May 2007 and in August 2008 (as well as letters of instruction written by the plaintiff’s solicitors dated 12 June and 14 August 2008) were tendered.
119 The May 2007 report again demonstrates an account generally consistent with the histories given by the plaintiff to both treating and medico-legal experts. In this report (and apparently without the benefit of background materials) Mr Hjorth concluded, amongst other things, that the plaintiff had suffered brain damage, and expressed his opinion that: “90% of her current disability relates to accident 2 and 10% relates to accident 1”.
120 However, of the reports tendered, his last report dated 25 August 2008 (accompanied as it was by the letters of instruction which identify the extensive background material supplied, that included Ms Polianskaia’s affidavit dated 29 July 2008 and reports from Drs Goloub, Lebedev and Frei) is probably the most reliable indication of his opinion both because of the background information available to him and because of Mr Hjorth’s analysis of this material so as to disaggregate the consequences of the accidents, each of which he accepted had caused head injuries and stress.
121 Clearly, in addition to the background information Mr Hjorth gleaned from the reports and Ms Polianskaia’s affidavit, contextual matters such as the plaintiff’s history of hard work, high achievement, and her linguistic accomplishments were factors which helped persuade Mr Hjorth that following the first accident “... a variety of symptoms including headache, dizziness, balance disturbance, poor memory and difficulty in concentrating” had
“a largely organic or physical basis and I think that these were due to the first accident. Of course she has more disabling symptoms due to the second accident but I think that most people looking at the first accident would conclude that she had suffered a severe injury in this first accident of
18 October 2001.” In other words, in the context of this application objectively speaking her physical problems and cognitive deficits following the first closed head injury make it likely that the consequences were “very considerable” and the brain injury was “serious”.
122 Whilst it is evident from particularly his final report that Mr Hjorth was impressed by the plaintiff’s background, within his area of expertise I think his conclusion that the plaintiff’s earlier symptoms were organically mediated, grounded as it is in the material I have already mentioned, is defensible.
123 I have already mentioned in passing the report of the neuropsychologist retained by the defendant, Dr Gibbs. He also administered a raft of tests (which similarly demonstrated a low level of functional IQ) as well as providing a very detailed (and in parts repetitive) report dated 4 June 2007, demonstrating as it does that Dr Gibbs had access to a wide selection of reports and materials which included Alfred Hospital materials but not, it seems, Dr Frei’s reports. Having read his report, notwithstanding its omission from his list of enclosures, I am nevertheless satisfied that he also had access to Dr Goloub’s May 2003 report (but not Dr Lebedev’s March 2003 report or Dr Walton’s May 2007 report).
124 However, much of Dr Gibbs’ report is devoted to discussion of the content of the material with which he was provided and his report of the outcome of the tests he performed. Relevantly, Dr Gibbs appears to have understood from the earlier radiological reports that the brain lesion (described following the second accident “as most likely representing diffuse axonal injury”) was probably also present in the earlier scans without its significance being deliberated upon. Arguably this occurred because when this area of concern was identified in the 2002 study the focus of particularly the MRI investigation that followed was on determining the significance of a different area of concern identified by this study, in relation to the plaintiff’s diplopia.
125 As to his opinion, Dr Gibbs:
(a) accepted that the plaintiff sustained head injuries in successive accidents with a “limited period of loss of consciousness, post-traumatic amnesia, or of reduced Glasgow Coma Score ...”; (b) noted the claim of loss of consciousness (of about five minutes); (c) without differentiating between accidents, noted the development of Post-Traumatic Stress Disorder, physical symptoms and what he described as a decline “into a Depression”; (d) reported “marked deficits in auditory attention, mental tracking and general performance speed. Moderate deficits in higher-level spatial/constructional skills were observed. There was moderate deficit in abstract spatial reasoning. Mental arithmetic appeared adequate but at a lower than expected level. There was an ability to learn new verbal and spatial material, but this appeared prone to forgetting and attentional lapse over time. Memory and learning for grammatically sequenced information was poor - and likely to reflect language background. She was able to learn verbal material at a moderately reduced level, and without gross perseverative or intrusive errors. Mrs Khmelevsky did not appear to be grossly emotionally or behaviourally disinhibitted and her insight appeared adequate. She reports irritability and increased
arguments in the context of lowered mood and physical symptoms.” [sic];
(e)
determined (without differentiating between the head injuries suffered) that the plaintiff probably suffered “relatively mild to moderate head injury
but she has deteriorated over the years with post-traumatic stress disorder, depression and physical discomfort/ pain. I consider that her psychological state, and Depressive features in particular, is likely to be contributing a component towards her present cognitive function. As such, with amelioration in her anxiety spectrum (PTSD) and depressive disorder, there is potential for improvement in her cognitive test
performance.”;
(f) recommended intensive psychological treatment which should also take into account concurrent psychological stresses resulting from the plaintiff’s changed life circumstances (these stresses were also identified by Drs Walton and Kaplan). 126 Dr Gibbs summarised his conclusions by also saying:
“any cognitive deficit due to head injury/ organic brain impairment appears likely to be of a mild to moderate nature- with her mental state (ie: PTSD, Depression ...) likely to be exerting a significant impact at present where the history with respect to the latter appears one of decline rather than recovery following the acute accidents ...”
127 Relevantly Dr Gibbs’ conclusions confirm probable brain injury in the first accident (that is diffuse axonal injury) with what he characterises as “mild to moderate” cognitive deficits due to a head injury/organic brain injury. This of course represents his description of the cognitive deficits/impairment without measuring, as I am required to, the significance of for instance even mild or moderate memory loss to the plaintiff. Moreover, Dr Gibbs appears to accept that, following the first accident, the plaintiff also suffered symptoms of Post- Traumatic Stress Disorder, depression, and the like, conditions that have worsened, and, in his opinion if more intensively treated, may lead to improvement in the plaintiff’s cognitive test results.
128 Having read Dr Gibbs’ report I am unable to discern what he meant by “more” intensive treatment. Currently the plaintiff’s treatment regime involves the care of a psychiatrist (who appears to specialise in brain injury cases) and her long-standing treating psychologist as well as the use of psychotropic medication prescribed since 2004. No doubt these were all matters Dr Walton considered when in May 2007 he noted that the plaintiff’s mental state had stabilised at the level described by Dr Goloub prior to the intervention of the second accident (that is before the plaintiff had the benefit of psychiatric treatment and appropriate medication).
129 In these circumstances I am not persuaded that undertreatment of symptoms of Post-Traumatic Stress Disorder, depression and the like (rather than brain damage) has allowed non-organic factors to inflate the consequences of the earlier organic brain damage.
130 The last of the defendant’s medico-legal reports is a short report submitted by neurologist Professor Davis dated 23 July 2007. It apparently follows an earlier assessment and report (which was not tendered), Professor Davis having by then sighted reports from both Drs Walton and Gibbs.
131 However, I cannot tell from the report tendered whether Professor Davis had access to the earliest reports from treating doctors, although I expect he gained some knowledge of their content from the parts of their reports summarised in supplementary reports to which Professor Davis said he had regard.
132 Whilst noting that Drs Walton and Gibbs both considered that the plaintiff “had sustained some degree of brain injury” in the first accident, Professor Davis was clearly unconvinced that the plaintiff’s “impaired neuropsychological
performance reflects organic brain injury, rather than psychiatric factors and particularly a pain syndrome. Nonetheless, I cannot exclude a very minimal component of organic injury and think it would be reasonable to accord a 3% impairment from Table 4.2, probably related to the first accident of 2001.”
133 Nevertheless, I did not find Professor Davis’ report as helpful as it might otherwise have been due to:
(a) its brevity; (b)
the fact that he did not sight Dr Walton’s earlier report and appeared to believe (I think wrongly) that, prior to the receipt of particularly a neuropsychiatric assessment, Dr Walton had formed any view about the degree of brain injury suffered in the first accident;
(c)
its tendency to further minimise even Dr Gibbs’ findings (and by inference Dr Frei’s findings) in relation to any organically mediated deficits; and
(d)
its incompatibility with the evidence of the treating psychiatrist and Mr Hjorth.
The injury suffered in the first accident
134 In accordance with the submissions made on behalf of the plaintiff, having heard the evidence, I accept that the picture that emerges of the plaintiff in the period between the accidents is of a woman who had suffered a dramatic and immediate impact on her baseline functioning, whose personality altered and who was not functioning particularly well in most areas of her life, but who nevertheless persevered in her attempts to maintain particularly her place with her employer.
135 With the benefit of hindsight, particularly through Professor Krapivensky’s work with her patient and relevant to this application, I think it very clear that the plaintiff probably suffered:
(i)
long-term organic brain damage as a result of the first accident, but not necessarily as a consequence of the second accident; and
(ii)
as a result of the first accident, Post-Traumatic Stress Disorder, depression and anxiety, for symptoms of which she was initially treated by Dr Goloub without, it seems, the prescription of psychotropic medication or psychiatric intervention.
136 However, as is apparent from Dr Goloub’s May 2003 report, by at least August 2002 the plaintiff’s psychological condition was stabilised and as her treating psychologist he was in a good position to delineate between symptoms of any mental disorders and the symptoms associated with the plaintiff’s physical injuries (which included a probable whiplash/neck injury).
137 Indeed, had the plaintiff’s brain injury related impairment (with consequences which included the impact on the plaintiff’s earning capacity and in part measured by her response to her physical impairment) been assessed for a serious injury certificate prior to the second accident, I think it likely that the plaintiff would have met the test for serious injury under paragraph (a) of the definition (that is, the consequences of impaired brain function were predominantly mediated by organic injury and they were very considerable and long-term in the sense that they were enduring consequences).
138 In reaching this conclusion I have given particular weight to:
(a) Dr Lebedev’s observation that within 2 months of the Transport Accident Commission ceasing payment for hydrotherapy and physiotherapy treatments the plaintiff’s physical condition deteriorated; (b) Dr Goloub’s evidence that by August 2002 the plaintiff’s mental state had stabilised (that is, without medication and psychiatric intervention). 139 On the evidence before me, the second accident complicated the picture, both because through particularly skeletal and soft-tissue injury it caused ongoing physical impairment and it probably also aggravated the plaintiff’s Post- Traumatic Stress Disorder as well as producing an Adjustment Disorder secondary to her further, and extensive, physical injuries.
140 However, as to the physical symptoms and impairment consequences of probable brain damage suffered in the first accident (temporarily exacerbated by the second accident and in part measured by her response to her physical impairment) the plaintiff has satisfied me that these are fairly described as very considerable and long-term.
141 As to any further application under paragraph (c) in respect to any mental condition such as Post-Traumatic Stress Disorder and depression caused by the first accident, based on the medical evidence prior to the second accident, I am not satisfied that the consequences of any Post-Traumatic Stress Disorder or depressive symptoms for which the plaintiff was treated until August 2002 can be fairly described as being stronger than “serious”, that is “severe”.
142 On the other hand, had this also been an issue at hearing, the aggravation of the plaintiff’s Post-Traumatic Stress Disorder caused by the second accident probably currently fulfils the requirements of the definition under paragraph (c).
Orders 143 Accordingly, pursuant to s.93 of the Act leave is granted to the plaintiff under sub-s.93(17)(a) to bring proceedings for the recovery of damages in respect to injury suffered in the transport accident on 18 October 2001.
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