Krueger, Najah v TAC

[2009] VCC 1764

De

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-09-01319

NAJAH KRUEGER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K.L. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	9 and 10 December 2009
DATE OF JUDGMENT:	16 December 2009
CASE MAY BE CITED AS:	Krueger, Najah v TAC
MEDIUM NEUTRAL CITATION:	[2009] VCC 1764

REASONS FOR JUDGMENT

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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment of the lumbar spine – impairment of the cervical spine – chronic pain syndrome – post traumatic stress disorder - psychiatric impairment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie SC with	Hounslow & Associates
Mr M Walsh
For the Defendant	Mr W R Middleton SC with	Solicitor for TAC
Ms A Ryan
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 29 March 2006 (“the accident”).

2 Section 94(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied

that the injury is a serious injury.”

3          The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a):

“Serious long term impairment or loss of a body function.”

4          The enquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

5          The serious injury defined by sub paragraph (a) can 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: see Richards v Wylie (2000) 1 VR 79.

6          The plaintiff further relies upon a psychiatric impairment pursuant to sub- paragraph (c):

“Severe long term mental or severe long term behavioural disturbance or

disorder.”

7          The body functions relied upon by the plaintiff in this case are the cervical spine, lumbar spine and psychiatric impairment.

8          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked?”: see Humphries v Poljak [1992] 2 VR, at 140-1.

9          The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

10        The plaintiff is presently aged 52, having been born on 10 November 1957 in Lebanon. The plaintiff attended high school in Lebanon until Year 9 and married in 1974 at the age of 17. She migrated to Australia in 1977.

11        Between 1977 and 1978, the plaintiff was employed as a process worker/packer at Koala Shoes. She had children in 1978 and 1979.

12        In 1979, the plaintiff and her husband opened a milk bar which they operated for two years. Throughout the 1980s and into the 1990s, the plaintiff had a variety of jobs, including working in a nut shop, fruit and vegetable market and a fish and chip shop.

13        In 2000, the plaintiff’s marriage broke down. She commenced a relationship with her current husband in 2001 and they married in 2004. They are presently separated but live under the same roof.

14        Prior to the said date, the plaintiff had surgery for a hiatus hernia in 1979. In 1992, she had a hysterectomy and an oophorectomy performed. In 1998, she underwent surgery to her left foot and had six months off work after surgery.

15        The following year the plaintiff was granted a Disability Support Pension. She continued to have problems with her left foot over the next several years caused by the screws and pins in the foot.

16        The plaintiff underwent nasal surgery in 2002. In October 2005, the pins in her left foot were removed and she was in plaster for six weeks.

17        The plaintiff deposed that other than one session of counselling following her father’s death in 1993, she has not sought or obtained any psychological or psychiatric treatment, and was not on any medication immediately prior to the accident.

18        In examination in chief, the plaintiff said that she had some stressful circumstances in her life for which she had seen her general practitioner for counselling and treatment from time to time.

19        The plaintiff deposed that prior to the said date she suffered low back pain and saw a chiropractor in the late 1980s and early 1990s.

20        In examination in chief, the plaintiff said that she did have a bit of problem with her back fifteen years ago.

21        The plaintiff was cross examined at some length in this regard. She said she had probably had chiropractic treatment a handful of times before the said date. She had x-rays and probably a CT scan on her back and foot.

22        The plaintiff attended the Plaza Clinic in Lalor (“the Clinic”) from as early as 1988. The plaintiff went through her file with her lawyer prior to giving evidence.

23        From about 1994, the plaintiff started to get problems with her right foot. In May, 1996 she complained of one week of left shoulder pain for which she was prescribed Brufen.

24        The plaintiff had a left tennis elbow problem and total left arm pain in October 1996. She had numbness of the left side of her body in December 1997 which she explained was because her husband hit her. She was prescribed Temaze at that time because of her marital problems. She was suffering from anxiety neurosis in January 1998 and given Prozac. She could not recall two days of back soreness in February 1998.

25        In October 1999, she fell injuring her shoulder and upper back. It was noted that two months earlier she had complained of neck pain again after a domestic dispute.

26        On 12 October 1999 she complained of left shoulder and left hip pain but could not recall being prescribed MS Contin as was noted. She could not remember complaining of low back pain in October 1999 but could remember doing so in November.

27        The plaintiff had left arm pains in late 1999. In early 2000 and she was seeing a chiropractor. She had frequent headaches whilst going through divorce in May 2001.

28        The plaintiff had dizziness, nausea, ongoing neck, and back pain in October 2001. She underwent a CT scan of her lumbar spine at that time but could not recall undergoing a lumbar puncture. In November 2001 she was assaulted when her bag was grabbed, injuring her back, left thigh and knee.

29        In January 2002, she had left knee pain and still suffers from this problem. It got worse in the accident and now it is only when she walks. Before the accident, her problem was with varicose veins.

30        The plaintiff agreed that in June 2002 she was having ongoing low back and sciatica which she explained was because her foot was always swollen up. She was referred to Mr Tran orthopaedic surgeon because of her back but as he could not see her, she was referred to Mr Dooley.

31        She agreed she had been having low back pain for two years prior to the referral in mid 2002. Her pain was getting worse and she had foot problems.

32        The plaintiff agreed she complained of back pain when she saw a kidney specialist in 2000 but denied it was really very severe pain.

33        The plaintiff could not recall taking painkillers before the accident but may have taken them for a bit of aching. She probably had a bit of a sore back every six or seven months probably.

34        The plaintiff attended the Hospital in February 2001 after she collapsed following left sided weakness after being robbed by her ex husband.

35        The plaintiff said that on one occasion prior to the said date she may have attended the Clinic complaining of neck stiffness.

36        The plaintiff and her husband opened a pawn broking business Treasures and Pleasures (“the business”) in Wallan in April 2005.

37        The plaintiff deposed that she helped out in the business for about two to three hours a day, three days a week. The plaintiff had some time off work when she underwent foot surgery in October 2005. She then returned to work in February 2006 when her plate was removed. The foot surgery gave her great relief and by about March 2006 she had started increasing her work in the business.

38        On the said date whilst a passenger in a car driven by her husband, their car was struck by another car that suddenly pulled out across the Hume Highway from the service station and into the path of their car. They were travelling at about 100 kilometres per hour and their car T-boned the other car and spun a few times (‘the accident”).

39        It was an extremely traumatic accident. The plaintiff does not believe she lost consciousness, but her memory of the impact is vague and she does not know if she hit her head on something. She could recall her husband screaming, “You’ve killed my wife, I’m going to kill you”.

40        The plaintiff felt in a state of shock and felt she could not breathe.

41        An ambulance arrived, but the plaintiff refused to go with it to hospital and she just wanted to be home and safe with her family. She later explained the ambulance reminded her of her father’s death.

42        The plaintiff was short of breath, anxious and crying. Her husband was also injured.

43        When the plaintiff got home that night, she could not sleep and early the next morning she started to vomit blood. She spent the next day at home and started to feel pain and dizziness and like she was going to collapse.

44        The plaintiff attended the Wallan Family Practice (“the Practice”) on 31 March 2006 where she saw Dr Fang, a colleague of her normal practitioner, Dr Saeed.

45        Dr Fang referred the plaintiff to the Northern Hospital (“the Hospital”) for x- rays and prescribed Panadeine.

46        The plaintiff remained in the Hospital from 1 April until 6 April 2006. During that time, she underwent various investigations on her neck and back and was given analgesics.

47        The plaintiff was discharged with a hard collar into the care of Dr Saeed who prescribed various medications including Voltaren, Antenex, OxyNorm and Panamax.

48        The plaintiff returned to the Hospital for a further x-ray to her neck and later to have the collar removed. She was sent for physiotherapy with Christian Barton in Kilmore.

49        By May 2006, the plaintiff started feeling depressed and had trouble sleeping because of anxiety. She was too scared to get into the car, even as a passenger, and was having flashbacks of the accident and having nightmares about being in the accident again.

50        She became irritable and disinterested in doing anything and spent her time at home. She started to feel worthless and was crying all the time and her doctor prescribed her anti-depressants.

51        The plaintiff’s pain, particularly in her neck and back, continued. She had a CT scan of her neck on 14 June 2006 and of her back on 16 August 2006. About that time, she was referred to an orthopaedic surgeon, Mr Wilde. He recommended she undergo a nerve root block with local anaesthetic and steroids.

52        The plaintiff had a CT guided injection at the Hospital but it gave her no benefit whatsoever.

53        The plaintiff’s back pain continued and Dr Saeed prescribed Digesics. The plaintiff also returned to see Mr Wilde who advised her to have a further MRI of the lumbar spine which was performed in October 2006. Mr Wilde advised the plaintiff he could not offer surgery and he referred her to Dr Clayton Thomas for pain management. By this time, the plaintiff was feeling increasingly depressed and, in early October 2006, she took four Panadeine Forte tablets and was looking for sleeping tablets to take when her husband found her. He stopped her taking an overdose.

54        The plaintiff was again admitted to the Hospital on 22 October 2006 when her back pain and leg symptoms flared after she tried to do some vacuuming. She was then an inpatient for about two days and given morphine for pain.

55        After this episode of bad back pain, the plaintiff’s doctor gave her a certificate to have home help. The plaintiff became very upset at the attitude of a claims officer from the TAC with whom she had discussed her home help claim. Following this conversation, she began to cry and that night felt terrible. She felt worthless and not wanting to live any more, took a few sleeping tablets. Her husband woke her up. She vomited and did not get out of bed for some days.

56        The plaintiff continued to feel a lot of pain. A repeat MRI of her lumbar spine was carried out in December 2006.

57        In February 2007, the plaintiff was referred to Ms Dale, a psychologist. Ms Dale commenced treating the plaintiff every one to two weeks and taught her how to relax and travel as a car passenger.

58        The plaintiff was also sent to Dr Thomas for pain management treatment.

59        The plaintiff was referred to Dr Bassily for treatment of abdominal problems and urinary incontinence. The plaintiff had developed constipation and stomach bloating. Dr Bassily did various tests and told the plaintiff her symptoms were probably from taking medication.

60        The plaintiff attended Dorset Hospital for rehabilitation assessment in March 2007 and then attended a three month pain management program commencing in May 2007 (“the program”).

61        During the program, the plaintiff learnt how to manage some light tasks around the house by pacing herself and having regular breaks. She was reviewed further at Dorset Hospital in September 2007 and a further MRI of her lumbar spine was carried out in October of that year.

62        The plaintiff started to see another general practitioner, Dr Anne Porter, in February 2007 as she felt she was not getting any better and wanted to see if a different doctor could help her.

63        In November 2007, the plaintiff went to the Hospital with left ear, neck and face pain and also left-sided headaches and loss of balance. She had a CT scan (neck). She saw Dr Sdralis, who said she had hearing loss and problems with her jaw, which he thought were unrelated to the accident.

64        Because of continuing neck pain, headaches and bad back pain, the plaintiff was sent to an acupuncture clinic. However, as her problems continued, she spent Christmas 2007 in bed.

65        In about February 2008, the plaintiff suffered chest pain which at times radiated to her neck and left arm. She was referred to a general surgeon, Mr Danne, who performed various tests including a barium swallow and endoscopy.

66        The plaintiff was also admitted to the Hospital with a suspected heart attack. She was an inpatient for four days but then was readmitted several more times between February and June 2008 as a result of further chest and neck pain.

67        During that time, the plaintiff was given various cardiac tests and the Hospital was not sure whether her “heart attack” was due to coronary artery disease or some other condition related to her back injury. The plaintiff was given a clearance and does not require further treatment for her cardiac symptoms.

68        In around July 2008, the plaintiff was referred to Dr Karlov, a consultant physician who arranged a further cervical MRI. He thought the plaintiff may need nerve root injections and surgery.

69        In around September 2008, the plaintiff returned to see Mr Wilde with the results of the further MRI and he told her there was no surgical solution.

70        The plaintiff continues to consult her general practitioner, Dr Greculescu, in Wallan about every week or two as required.

71        As well as her neck, shoulder and chest pain, the plaintiff has also developed facial numbness which she gets on a regular basis. She was referred to Professor Chambers neurologist who indicated he could not specifically help her and recommended a further MRI scan.

72        The plaintiff’s symptoms have also included uncontrollable tearfulness and inability to sleep.

73        Dr Greculescu arranged a CT scan of the plaintiff's thoracic spine on 20 April 2009 which did not show any damage.

74        The plaintiff understood Dr Greculescu had tried to refer her to a number of specialists who would not do TAC work.

75        The plaintiff was advised in July of this year of an appointment with the orthopaedic unit at the Hospital in November next year. Correspondence from Austin Health dated July 2009 advising of new appointments in 2010 was tendered.

76        The plaintiff was very concerned at the delay in receiving treatment and, accordingly, rang Mr Wilde who saw her on 27 October 2009 and told her he would arrange for another appointment next year as a private patient.

77        In addition, the plaintiff was referred by Dr Greculescu to the Hospital for a facet joint injection in her upper back on 9 November 2009. On attendance at the Hospital, the plaintiff’s blood pressure had risen and the doctor told her he could not do the procedure and sent her home.

78        The plaintiff continues to consult Christian Barton, physiotherapist, every two to three weeks for her neck and back problems. She has been told to continue walking and she tries to do this on a daily basis but she is restricted in the distances she can walk.

79        The plaintiff still consults Ms Dale every two weeks and she has recommended the plaintiff try and do things, including recreational activities.

80        The plaintiff continues to take Panadeine Forte, Tramal, Panamax, Endep, Nexium, Coversyl, Cardizem, Anginine spray, Cartia, Crestor, Temaze, Ceina and Movicol.

81        The plaintiff also takes Provasol for blood pressure. Nexium is for gastric problems and she also takes medication for cholesterol.

82        The Panadeine Forte is for pain that she has “in every inch of her body” and on average, she takes four tablets a day. She takes two Panamax tablets every four hours for shoulder, leg and back pain. She takes Tramal at night when required, Temaze to sleep and also Endep. A new anti-depressant was suggested by the TAC psychiatrist.

83        The plaintiff is still having physiotherapy funded by TAC, sometimes weekly and at other times monthly.

84        The plaintiff deposed that after the accident, the business was operating on and off for several months. There were no new loans to clients because the plaintiff and her husband were both injured and could not cope with the business. They were trying to tie up loose ends and close up. They occasionally opened the shop to service those loans until the shop shut completely in November 2006 and the plaintiff has not returned to any work since.

85        The plaintiff has not been offered any vocational retraining or rehabilitation and cannot think of any work she could do, given her current symptoms.

86        Had it not been for the accident, the plaintiff intended to keep learning the business and to work her way up to full time, but that opportunity was now completely gone.

87        The plaintiff was cross-examined at length about the business. At the time of the accident the plaintiff agreed she was not working. She was on a disability pension because of her foot and had not worked since 1998. She was not on a full pension because her husband had opened the shop. When she attended the shop before the accident, she was not being paid. Her husband was still training her in the job to learn the nature of the business so she could run it after her operation.

88        The plaintiff agreed that histories given to doctors which described her working in a clothing shop or running a retail business were wrong.

89        At the time of the accident the plaintiff’s husband was working in the shop and he also was working in his renovation business

90        In her work before 1998, the plaintiff was paid in cash and she did not lodge tax returns. The plaintiff was asked about her 2005-2006 tax return which included income of $5432 from the business. She did not know anything about it as she was never paid wages. She thought her accountant may have drawn up the return.

91        The plaintiff agreed that she was currently repaying the Department of Social Security (“DSS”) fifteen dollars per week. After the accident, her husband applied for TAC benefits. Whilst his claim was being considered, DSS increased the plaintiff’s payment but when his claim was finally accepted the plaintiff had to repay DSS the amount she had been overpaid.

92        Centrelink wrote to the plaintiff on 4 July 2007. The plaintiff was advised that the correct amount of her husband’s weekly payments were not taken into account when payments were made to her and therefore she had to repay $26,612.00 by way of payments of $15 per week.

93        The main reason the plaintiff cannot go back to work is because of her physical injuries from the accident.

94        The plaintiff presently receives a disability pension of $500 per fortnight together with an allowance for her utilities. This is twice the amount she was receiving at the time of the accident.

95        The plaintiff was cross examined about the TAC claim form signed by her on 1 May 2006 before her solicitor Mr Hounslow. She agreed she provided the information which was set out in the form. She could not remember why she had not included her back in her list of injuries nor why she had answered “NO” in answer to the question whether she had received chiropractic treatment before the accident. She agreed her answer “NO” to the question about pre accident back or neck pain was not correct but said before the accident she “suffered just a little bit. It was not like what she has now”. Also sometimes when she is taking heavy medication she cannot remember what she is doing.

96        The plaintiff deposed that as a result of the accident she believes her life has changed completely and she feels like a different person. She has put on 25 kilograms in weight from being inactive.

97        The plaintiff thought prior to the accident her weight raged from 49 to 58 kilograms. Last time she had weighed herself would have been about 79 kilograms. She did not realise that she had weighed as much as much as 66.2 kilograms when seen at the Hospital in October 2005 nor that she weighed 64 kilograms in 1992 or 1997.

98        The plaintiff is upset all the time and she “cracks it” for no good reason. She and her husband separated because of all the arguments and because she started to feel useless as a wife. She felt she was a burden on him when she should have been helping him as he was also injured in the accident.

99        Prior to the accident, the plaintiff used to enjoy spending time with her family and took a lot of pride in cooking for them and having visitors. She now does not like having guests because she feels upset a lot of the time and feels pressure when having other people in the house.

100       The house is a mess all the time and she cannot do the gardening like she used to. She is embarrassed having people seeing her in that condition and seeing her house and garden in a mess. She is told by her friends that she has changed and she is not a traditional Lebanese woman any more which makes her feel sad and guilty.

101       The plaintiff still sees her sisters from time to time, but not like she used to. The three of them used to go away for weekends about every six weeks or so before the accident, but since that time she has avoided these breaks. They had a terrible time when they went away in November last year for the plaintiff’s birthday. They were supposed to be away for two weeks, but she felt awful and they went home after only three or four days. The plaintiff felt bad because they lost the money for the house rental and came home just because of her.

102       The plaintiff used to enjoy fishing greatly. Since the accident she has tried to go fishing on a few occasions. A few weeks ago, she went to Airey’s Inlet with her husband to try fishing. After a few casts, she realised she could not do it and had to stop. Even driving to Airey’s both she and her husband had to stop from time to time to get out of the car to walk because of their injuries.

103       The plaintiff is still nervous in the car, particularly at intersections, and she does not drive any more and has to rely on others to take her shopping or for appointments. She is a very nervous passenger. She avoids going past the accident scene and she feels sick if she sees any TAC advertisements on the television.

104       The plaintiff explained in cross examination that she had taken the blame for numerous speeding tickets and other traffic infringement notices received by her son, her sister and her husband. She knew it was a lie but she took the points and the fines because her son needed his licence for work.

105       The plaintiff was cross examined about a history given to Ms Dale that she no longer has sex. The plaintiff denied any relationship problems prior to the accident. She could not recall seeing Dr Sophie Liu at the Clinic on two occasions in May 2005 discussing her lack of interest in sex with her present husband.

106       The plaintiff denied that on 29 October 2004 she told a doctor at the Practice that she found it difficult to be sexually aroused and stated that she had never discussed her sex life with a doctor before the accident. The plaintiff agreed that she was blaming the accident for her sexual difficulties.

107       The plaintiff denied having separated from her present husband before the accident as was noted on the Hospital file 5 April 2006. The plaintiff explained the arrangement was she would continue to live with her sons until they were married and then she would move in with her husband.

108       The plaintiff has constant neck pain, usually a dull ache but a sharp stabbing pain if she moves a bit fast or the wrong way, or is not sitting comfortably. She has left arm pain going from her neck down into her fingers which sometimes makes her drop things and sometimes she uses a brace on her left forearm to help with this pain. She gets pins and needles and numbness in the left arm and frequent headaches, particularly on the left side.

109       The plaintiff suffers constant low back pain which usually goes down her left leg and, on a bad day, she feels a burning pain. She also feels a really heavy pressure on her back, like someone is pressing or stepping hard on her back. She experiences a sharp stabbing pain in the chest which goes into the left side of her chest and ribs around her left shoulder blade area. She has to take medication and lie down in the middle of the day. On bad days she cannot get out of bed at all. She also has stomach problems and constipation. Her pain varies in intensity but remains constant.

110       In cross examination she said that she had not got better at all in terms of her back and neck pain since the accident and that she was deteriorating.

111       She denied exaggerating her pain when she last saw Mr Wilde and Professor Chambers.

112       Her present concerns are her heart and her spine. She gets a lot of pain down her neck and on her shoulder and does not know if it is her heart, her shoulder or her neck that causes pain. She gets pains in the arms and down both legs into the feet particularly in the left. She underwent a CT scan of her thoracic spine in April 2009

113       The plaintiff believes that her current chest problems and her stomach problems are related to the accident.

114       The plaintiff does not carry things in her right hand because doing so puts pressure on her back. She is limited to carrying weights not exceeding one kilogram with her left hand.

115       The plaintiff often cannot get to sleep, even with sleeping tablets, and feels exhausted during the day. In cross examination she agreed she had a bit of a problem sleeping when her father died and throughout the divorce.

116       The plaintiff also finds it hard to concentrate and remember things because of her medication and her son has to write things down to remind her what to do.

Plaintiff’s Medical Evidence

117       A number of reports have been provided by the plaintiff’s treating doctors at the Wallan Family Practice (“the Practice”).

118       The plaintiff’s first post accident consultation at the Practice was on 31 March 2006. The plaintiff presented with neck pain, stiffness, spasms in her back and both shoulders, some nausea and left hip pain radiating into her left leg.

119       It was noted throughout various reports provided by doctors at the Practice that the plaintiff did not suffer from any pre-existing illness.

120       In June 2006, it was noted that the plaintiff had problems sleeping and with some depressive symptoms. Accordingly, she had been prescribed anti- depressants and sleeping tablets. At that time the plaintiff seemed to be coping well and was helping out her husband with his business by doing some hours in the shop.

121       In a subsequent report it was noted that the plaintiff did have arthritic changes in her spine before the accident, but they were not causing any discomfort and disability.

122       Dr Saeed noted that before the accident the plaintiff was actually managing her own business without problems and performing home duties. In February 2007 she had had to give up her business as she could not cope with the amount of pain she was getting.

123       At that early stage Dr Saeed thought the plaintiff’s condition was complicated by chronic pain and depression and it was noted, due to loss of income, the closure of her business, her inability to carry out day to day duties, she had developed depression and she had been referred to Dominie Dale, psychologist.

124       Dr Saeed thought the plaintiff suffered from chronic pain syndrome and that the injuries sustained would not lead to permanent physical impairment.

125       Dr Porter reported that during July 2007 the plaintiff was having ongoing neck pain, her chest tenderness had resolved and her left sided sciatica was getting worse.

126       Dr Porter noted the plaintiff was hospitalised in November 2006 with an acute exacerbation of her back pain.

127       Dr Porter further reported in July 2007 that after the Dorset program, psychologically the plaintiff had made some significant gains and her distress had settled slightly. However, there was still ongoing post traumatic stress symptoms and, as it was felt the plaintiff would benefit from individual counselling, Dr Porter requested funding from the TAC.

128       At that stage, she also noted the plaintiff was having problems with headaches and left side face and neck pain which appeared to be musculoskeletal in origin and requested the plaintiff be sent for some myotherapy and acupuncture.

129       Dr Porter was also involved in chasing up funding for a gym membership in August 2007 and requested an MRI in September 2007. In an undated report, which appears to be later in 2007, she noted the plaintiff continued to complain of neck problems and the MRI had been received.

130       Psychologically, the plaintiff’s post traumatic stress symptoms continued unchanged and it was noted there were a number of stressors that had contributed to this - the failure of their fledgling business because she could not do the physical work required, the death of a close relative earlier this year and, most significantly, separation from her husband.

131       It was noted the plaintiff had in fact not driven herself since the accident. Dr Porter considered the plaintiff required ongoing assistance with home help and also ongoing acupuncture, physiotherapy and counselling to overcome her physical and mental injuries.

132       In a report of February 2008, Dr Porter noted the plaintiff had degenerative disc disease which would continue to deteriorate with time. She noted the exact relationship to the motor vehicle accident was unclear, and she suspected it pre-dated the accident but that the accident triggered the pain.

133       In Dr Porter’s view, clearly, the plaintiff’s neck problem pre-dated the accident although there were no complaints of neck pain prior to the accident.

134       Dr Porter considered that the plaintiff’s biggest problem was psychological. She noted that, with time, the plaintiff’s post traumatic stress disorder symptoms were improving.

135       The Hospital Emergency Department wrote to Dr Porter on 7 July 2008, on which date the plaintiff presented with angina pain and left shoulder pain and palpation associated with a pulling sensation in the chest.

136       Dr Porter has provided no further reports.

137       The plaintiff attended the Hospital Emergency Department on 1 April 2006 complaining of being involved in the accident three days previously.

138       The plaintiff reported vomiting on the accident date and thereafter. She had pain in her neck, left shoulder and left ear. There was numbness of her left lower leg and pain in the lower abdomen.

139       The plaintiff was admitted because of chest and back pain. It was thought to be musculoskeletal. However, DVT prophylaxis was begun on 2 April 2006. X-rays and a CT scan were taken, as was an MRI on 3 April 2006.

140       On 4 April the plaintiff was seen by a physiotherapist and taught to mobilise to and from bed, and she was discharged on 6 April 2006.

141       On 13 September 2006 the plaintiff had a CT guided L3-4 nerve root injection and further MRIs were carried out on 3 October 2006 and 7 December 2006. She had outpatient attendances on 11 April and 16 May 2006. On 22 November 2007 the plaintiff attended the acupuncture clinic because of pain in her neck and constant left sided headache.

142       The plaintiff was referred to orthopaedic surgeon, Mr Wilde, by Dr Porter. She attended him on 5 September, 16 November and 14 December 2006 and 14 August and 3 September 2008.

143       The plaintiff gave an initial history to Mr Wilde of running a family retail business with her husband and she told him her husband used to do extra part-time work in the building industry, mostly renovations, and that she worked six days and had Sunday off. Fifteen years previously, she had experienced occasional lumbar back pain but, despite this, was fit and well prior to the accident.

144       On the first attendance, the plaintiff told him her pain was improving slowly, especially in relation to her neck. Her low back pain remained troublesome with pain into the left leg down to the knee, and she rated pain levels at seven to eight out of ten on the visual analogue scale. She denied neurological symptoms in her upper limbs, although she described experiencing intermittent tingling in her left hand and left hand weakness.

145       On physical examination, the plaintiff displayed normal spinal and cervical posture. Lumbar and cervical movements were restricted because of pain and he was unable to detect any neurological deficit affecting the upper or lower limbs.

146       Mr Wilde had available to him the June 2006 CT scan and further CT scans on 16 August 2006, 27 October 2006, an MRI of the lumbar spine taken 7 December 2006 and an MRI of the cervical spine dated 21 August 2008.

147       In terms of the cervical spine, he noted that the CT scan did not show a fracture or dislocation. There was a small left sided C5-6 paracentral disc protrusion which, in his view, may have been compromising the left C6 nerve. In regard to the low back, there was a left L3-4 foraminal disc protrusion which was irritating the left L3 nerve.

148       Mr Wilde explained to the plaintiff there was no easy solution or quick fix. On the first examination, Mr Wilde felt the plaintiff’s main complaint was mostly her low back and left leg which he felt was caused by irritation of the left L3 nerve root from the mid lumbar prolapse.

149       He suggested the plaintiff undergo a left L3-4 nerve root block. An MRI of her low back had been discussed, but she was not keen to have this as she was quite claustrophobic.

150       The plaintiff returned for review on 16 November 2006 and unfortunately the nerve root block performed on 13 September 2006 provided no benefit whatsoever. Her new CT scan was identical to the previous one and she continued to complain of non-specific back pain with referral into her left leg to the knee and again he advised an MRI.

151       The plaintiff returned to discuss the results of that scan with Mr Wilde on 14 December 2006. He considered the scan showed minor disc dislocation at L2-3, L3-4 and L4-5. At L3-4, the facet joints were enlarged and the disc was bulging more on the left than the right. This was causing mild mass effect on the traversing left L4 nerve root and the L3 nerve root in the exit foramen was also compromised slightly and he thought that was the likely source of her pain.

152       Mr Wilde noted the plaintiff seemed to be very unhappy and described her symptoms in exaggerated terms. As there was a non-organic component, he was reluctant to contemplate surgical treatment and he told her he had nothing to offer her surgically.

153       Mr Wilde noted he took the liberty of writing to Dr Thomas to assist in pain management, but he suspected Dr Thomas would not be able to help her greatly and unfortunately, in the end, the plaintiff would have to battle on and do the best she could. The plaintiff then attended the Dorset Rehabilitation Centre (“the program”).

154       Following the program, Mr Wilde reviewed the plaintiff on 14 August 2007 when she reported non-specific pain everywhere. The pain was in her back and radiated to her thoracic spine and neck and down both her legs into her feet, especially on her left side. She told Mr Wilde she felt the program was not particularly helpful.

155       Mr Wilde noted that examination in August 2007 demonstrated an anxious patient who was difficult to examine. Her posture was flexed, lumbar movements were restricted because of her pain and there were no neurological findings in the lower limbs.

156       Mr Wilde told the plaintiff he was not able to assist her with surgery or other procedures such as epidurals or facet joint injections. The plaintiff told him she could no longer continue with pain and he suggested a pain management service.

157       Mr Wilde did not make any routine follow-up appointments to see the plaintiff as there was no further treatment he could offer.

158       Mr Wilde noted correspondence from Dr Thomas in November 2007 advising that the plaintiff had undergone a repeat lumbar MRI which did not adequately explain why she had developed some incontinence problems.

159       The plaintiff returned to see Mr Wilde on 3 September 2008 with a new cervical MRI which showed a disc bulge at C5-6 which was producing a slight narrowing of the exit foramen at that level. There was no central cord compression and the other motion segments of the cervical spine were mildly degenerate.

160       Mr Wilde confirmed his earlier advice that the plaintiff would not benefit from surgery and he noted it was difficult to be certain exactly which anatomical structure was causing her pain and that was why he did not recommend surgery. Furthermore, he did not believe injections would be useful.

161       Again, he suggested a return appointment with Dr Thomas for pain management.

162       Mr Wilde noted subsequent correspondence from Dr Thomas informed him that he had reviewed the plaintiff on 10 November 2008 when she was suffering from diffuse widespread pain syndrome and he had advised her to trial patches for better pain relief and to avoid her being readmitted frequently to the Hospital.

163       In summary, Mr Wilde noted that prior to the injury, the plaintiff denied significant lumbar symptoms. He diagnosed aggravation of cervical and lumbar spondylosis without radiculopathy.

164       He considered in the future treatment should remain along conservative lines.

165       He noted it was difficult to explain the stated ongoing symptoms and stated lack of improvement over a period of two years on the basis of purely physical organic pathology.

166       In his view, the reason for the severity of the plaintiff’s persistent pain was that she had developed a complex pain syndrome due to an abnormal neurological response with a psychological overlay which further aggravated the symptoms.

167       He considered the prognoses in relation to her back and neck were poor and that she would always suffer with low grade symptoms of chronic spinal pain and stiffness and that she would have to modify personal and work activities to accommodate her symptoms to avoid further deterioration.

168       The plaintiff attended Christian Barton at the Kilmore Physiotherapy Centre and continues to do so. There is one undated report available from this physiotherapist which appears to have been written in late 2006.

169       It was noted it was difficult to maintain regular outcomes due to the inconsistency of the plaintiff’s treatment attendance.

170       It was noted the plaintiff’s neck condition had worsened and that her lumbar spine injuries had been variable over the course of rehabilitation. She frequently complained of referred pain as far as distal as the knee however no complaints of radiculopathy type pain were voiced. It was noted that the plaintiff had not reacted favourably to any cervical based treatment.

171       It was noted at the time of the accident that the plaintiff and her husband were attempting to establish a small business selling clothing, giftware and jewellery. Due to this the plaintiff was previously under pressure to work at the business, serving customers, stocking shelves and completing office related work. That had impacted upon her recovery dramatically in two ways:

(1)	being limitation to time available to complete rehabilitation, and
(2)	being the impact of the actual work on the condition of her injuries.

172       It was noted the plaintiff had recently succumbed to pressure and closed the business. Mr Barton noted, however, due to the chronic pain cycle which had developed in her back and neck, he feared that even consistent treatment now may fail, but he did note the plaintiff was positive about consistent attendance in the coming months.

173       Dr Clayton Thomas saw the plaintiff on 9 February 2007 on referral from Mr Wilde. On examination, she complained of diffuse and widespread pain syndromes. She complained of neck pain, lower back pain, headaches and she felt her left arm was getting worse.

174       The plaintiff told Dr Thomas that by way of treatment she was having physiotherapy which helped her for two hours before she returned to her “crippled” state.

175       On examination, she had diffuse and widespread tenderness, which was fairly non-specific, but did seem to correlate with the usual tender point sites for fibromyalgia.

176       Dr Thomas noted spinal movements were fairly significant and limited in all domains in both her neck and lower back to about 70 to 80 per cent or normal. Neurologically, upper and lower limb reflexes were present and symmetrical, power and sensation intact, straight leg raising unremarkable and shoulder movements were good.

177       On examination, Dr Thomas felt the plaintiff’s diagnosis was indeed of diffuse and widespread pain syndrome, possibly fibromyalgic in origin. He did note nevertheless the impact in the accident was significant.

178       He considered an emotional response had occurred and that was significantly acting as a pain magnifier and contributing quite significantly to her disability and unhappiness.

179       At that time, Dr Thomas thought a pain management program would be the most appropriate form of intervention and he advised the plaintiff he would refer her to Dorset Rehabilitation.

180       On 14 September 2007, Dr Thomas wrote to the TAC requesting funding for an up to date MRI because on examination the plaintiff had reported she had developed episodes of incontinence, constipation unrelated to medication and worsening of leg pain.

181       There was no report available relating to Dr Thomas’ examination of the plaintiff in 2008.

182       A number of documents were tendered relating to the 2007 Dorset Rehabilitation Centre program.

183       It was noted that the plaintiff and her husband had a jewellery and homeware shop in Wallan which was closed on 2 December 2006 as they could not manage the business since the accident. There was also mention that in October 2006 the plaintiff was re-admitted to the hospital following an episode of vacuuming and was an in-patient for four days.

184       The initial assessment at the Dorset Rehabilitation Centre was carried out on 16 March 2007.

185       On the discharge summary at the end of the program, which had gone from 1 May to 21 June 2007, the plaintiff’s average pain perception had increased from seven to eight out of ten and her ability to sit had decreased from an hour to 30 minutes, while her standing tolerance had increased from 15 minutes to an hour. It was noted she was not driving since the accident.

186       It was noted that the plaintiff’s attendance at physiotherapy was interrupted by an ankle strain during the program.

187       In terms of the occupational therapy program, the plaintiff reported the sessions had enabled her to attempt household tasks which she was not doing previously. She was slowly learning to think more positively and it was noted her stress came from her financial difficulties and her social isolation. Further it was noted she was still struggling with post traumatic stress in regard to car travel and she had not re-commenced driving.

188       On discharge, the plaintiff was independent with personal care but struggling to do her hair. At that time she was receiving one hour home help for heavy cleaning and she was able to prepare simple meals and took care of light tidy- up tasks.

189       It was noted by the psychology department that the plaintiff had gained awareness through the program, but reported ongoing post traumatic stress syndromes which could not be adequately addressed in a group context and she would benefit from individual psychological counselling.

190       There was a follow-up summary in September 2007.

191       The plaintiff reported a significant exacerbation in her back pain in July 2007, following which she had to revert to regular massage, but had minimal relief.

192       It was noted that she reported learning valuable strategies to cope with daily tasks. However, emotionally she was still struggling with depression since the exacerbation and she had been able to resume a pool program and a daily walk program.

193       It was noted that the plaintiff’s outcome measures had remained largely unchanged on the completion of the program. Her distress measures and depression remained high, as did her neck disability index, along with poor physical function. Medication intake remained high with all outcomes reflecting the current exacerbation.

194       The plaintiff reported a number of stressors in the past two months, including the death of a relative, and, most significantly, she had separated from her husband. She had also had difficulty linking in with a psychologist. As a result, her post traumatic stress symptoms continued unchanged, but it was noted that, despite those stressors, her psychometric score suggested she had maintained the small gains made during the pain management program.

195       Dr Sdralis, ear, nose and throat surgeon, has treated the plaintiff for the last seven years.

196       The plaintiff underwent nasal surgery in 2002 with a good outcome and was not seen again until 19 December 2007.

197       Subsequent to the car accident, she was seen by him on 19 December 2007 and 9 and 24 January 2008. Her symptoms included a blocked and occasionally sore left ear and also a feeling of congestion in the nose.

198       Dr Sdralis diagnosed a small sinus polyp, mild age-related hearing loss in both ears and a TNJ problem which was probably longstanding and unrelated to the accident and which would benefit from a dental consultation. He noted that the problems for which she consulted him were incidental to and unrelated to the accident.

199       The plaintiff was referred to Professor Danne by Dr Greculescu on 30 April 2008 with respect to lower chest pain and abdominal trouble, with the plaintiff having reported severe oesophagitis.

200       The plaintiff first attended Professor Danne on 15 May 2008 with a complaint of recurring severe lower chest pain radiating into her neck and left arm.

201       Professor Danne organised an upper GI endoscopy and only minor changes of brief lux oesophagitis were found with a very small hiatus hernia.

202       Professor Danne reviewed the plaintiff on 12 June 2008 and, although the barium swallow and endoscopy had shown no significant abnormalities in the oesophagus and stomach, the symptoms indicated to him the possibility that a esophageal dysmotility with spasm was underlying the retrosternal and epigastric symptoms.

203       Professor Danne recommended that the plaintiff may benefit from being treated with patches or spray regularly to try to prevent episodes of pain.

204       Professor Danne believed that the symptom complex being complained of by the plaintiff was complex as he perceived that she and her husband were quite fixated in the belief that all their current life problems related to the car accident. He did not believe the plaintiff’s current chest pains and epigastric problems were in any way related to the accident and he emphasised that to the plaintiff.

205       The plaintiff first saw Dominie Dale, psychologist, on 9 February 2007, at which time the plaintiff was very depressed as a result of physical, emotional and financial stressors caused by the accident. It was noted that in October 2006 she had taken an overdose of medication in a suicide attempt because of the stress.

206       Further it was noted that the plaintiff and her husband had experienced severe chronic financial stress with many crises. Since the accident the plaintiff was not eligible for an income from the TAC because at the time of the accident she was running a clothing shop, a new business, and had not taken a wage. As Mr Krueger was self-employed, he did not receive an income from TAC until a year after the accident and then only because he had legal assistance.

207       As of April 2008, Ms Dale thought the plaintiff was suffering from major depressive disorder, moderate to severe without psychotic features, and post traumatic stress disorder.

208       Ms Dale recently reported on 30 November 2009.

209       Ms Dale noted after the plaintiff’s second foot operation, she began working in her husband’s shop but she did not draw a wage as the business was being established. After the accident, due to her injuries, she was unable to work and the couple had to close the shop.

210       Ms Dale noted that when the plaintiff first saw her she was relying on alcohol to help her sleep and manage her depression. Ms Dale was told that at that time the plaintiff was taking Panadeine Forte and Panamax to control the pain, and she also took a sleeping tablet, Temaze, at bedtime.

211       Ms Dale noted that since the accident, the plaintiff and her husband had not had a sex life and that had been the major reason for their current separation under the same roof.

212       In Ms Dale’s view, it was primarily the plaintiff’s physical condition preventing her from being able to return to work.

213       Ms Dale noted that earlier this year, the plaintiff’s husband was diagnosed with prostate cancer and subsequently underwent surgery and is making a slow recovery.

214       It was noted that the plaintiff’s current clinical symptoms were depression on most days, lack of enjoyment, significant weight gain, chronic insomnia, fatigue and feelings of worthlessness, great difficulty concentrating and suicidal ideation.

215       It was noted by Ms Dale that due to her inability to concentrate, the plaintiff had decided to stop taking anti-depressant medication and morphine. Treatment in the last 12 months had involved assisting the plaintiff understand the nature of her physical illness and to increase her activity level and in this it was noted she had made modest gains.

216       Ms Dale thought it would be of benefit to the plaintiff to be reviewed by a psychiatrist to determine whether some anti-depressant medication would be of assistance.

217       She considered the plaintiff was suffering from major depressive disorder, moderate to severe without psychotic features, and also suffering post traumatic stress disorder.

218       It was concluded the plaintiff’s psychological condition was related to the physical injuries and subsequent life stresses due to the accident. The plaintiff would require ongoing psychological support for her condition and, unless she was able to recover sufficiently from her physical injury, that condition was likely to remain chronic.

219       The plaintiff is currently under the care of Dr Greculescu at the Practice.

220       Dr Greculescu wrote to Professor Chambers on 1 September 2009 arranging for him to see her.

221       Having given a history of the accident and the subsequent treatment, Dr Greculescu advised that the plaintiff was understandably fed up with the pain and that she had been referred to a rheumatologist because it was thought she may have a component of fibromyalgia syndrome.

222       She noted the plaintiff’s last big problem, which was impeding on her sleep and daily routine, was sudden onset of pain over the left thoracic region and neck with severe lacrimation that was uncontrollable and left facial paresthesia. It was noted a CT scan did not show significant changes on the thoracic spine.

223       Dr Greculescu concluded it was hard to explain what impact all this persistent pain had had on the plaintiff who, she noted, was a very determined Lebanese lady who had been able to raise her two children by herself after walking out of a very abusive relationship and had provided for her family by managing her personal business.

224       Dr Greculescu noted that she exhausted all possibilities to help the plaintiff and her neuro-vegetative symptoms were new and their severity was the cause of her poor functionality. She asked Professor Chambers for any suggestion from his experience or assessment which would be welcome.

225       The plaintiff has seen Mr Paul Steedman on two occasions for medico-legal purposes. He first examined the plaintiff in May 2008 and, more recently, in December 2009.

226       On initial examination, the plaintiff complained of a lot of headaches and constant neck aches radiating to the left shoulder and down her left arm. She had lower lumbar back aches, reasonably severe, but not constant and they radiated down the back of her left leg.

227       She told Mr Steedman that at the time of the accident, she was helping her husband in his business as a pawnbroker.

228       She told him that her weight had increased 28 kilograms to a maximum of 85 kilograms. Initially, her weight was 52 kilograms pre-accident and now it is 72.

229       On clinical examination of her head and neck, there was stiffness and soreness in the neck. The movements of her neck were limited by at least 20 per cent of her expected normal range by apparent pain and stiffness, especially flexion and extension.

230       Examination of her lower back revealed stiffness and soreness and limited movements. Flexion was limited to 30 degrees, extension to 20 degrees, lateral extension to 30 degrees and lateral rotation to 45 degrees.

231       Straight leg raising was limited to 45 degrees on both sides actively and to that extent on the left and 60 degrees on the right passively. Power of active straight leg raising was limited on both sides and lower limb reflexes were sluggish.

232       Mr Steedman read the reports of all investigations noting that the CT and MRI scans indicated disc bulges in the lower two or three spaces of the cervical spine and at also at that level in the lumbar spine with degenerative changes.

233       On re-examination, the plaintiff told him, if anything, her condition was going backwards. Her weight was 53 kilograms before the car accident and it was now close to 80 kilograms.

234       Examination of her neck revealed marked stiffness, and all movements of her neck were down to 15 degrees or less.

235       Examination of her lower back revealed stiffness, and movements of her back were limited to 30 degrees. Straight leg raising was limited to 45 degrees on the left and 60 degrees on the right, both actively and passively. Again, lower limb reflexes were sluggish, particularly on the left hand side. He noted she was able to sit up from the horizontal to the vertical on the couch.

236       Mr Steedman concluded that the neck and back injuries were still related to the car accident and that they would preclude the plaintiff from employment. He thought she would have to continue physiotherapy every week or two for at least another six months and that the consequences of her injuries were long term.

237       Dr Karlov, consultant physician, first saw the plaintiff on 22 July 2008, when she complained of pain in the upper chest radiating to the shoulder blades, down the left arm and into the side of the neck.

238       Dr Karlov thought the diagnosis was one of cervical radiculopathy and possibly a costochondritis – an inflammation of the junctions where the upper ribs join with the cartilage that holds them to the breastbone- and he arranged for an MRI scan of her neck.

239       He thought that her current state was unsatisfactory and she certainly needed more treatment and may need nerve root injections. He noted some of the MRI findings were quite severe and the possibility of needing cervical intervention could not be ruled out. He thought the plaintiff’s prognosis was poor.

240       Mr Brendan Dooley examined the plaintiff on behalf of the defendant on 9 April 2008.

241       The plaintiff told Mr Dooley that she had been in good general health and very active prior to the accident.

242       The plaintiff complained of having put on a good deal of weight since the accident. She had persisting neck ache radiating to the left shoulder and persisting low back pain radiating to the left thigh with some numbness in the thigh.

243       On examination of the cervicothoracic spine, there was minor limitation of movements with mild muscle spasm. The plaintiff had normal neck posture. Flexion and extension were to 35 degrees, lateral flexion to the right was at 30 degrees and to the left 25 degrees, and rotation to the left was 60 degrees and to the right 70 degrees.

244       Examination of her lumbosacral spine revealed limited movements in all directions with flexion to 50 degrees, extension to 10 degrees, lateral flexion to the left at 15 degrees and to the right at 20 degrees. Moderate muscle spasm was noted with these movements.

245       There was no evidence of any muscle wasting in the left leg compared to the right and there was no sensory loss in the left leg. Knee and ankle reflexes were equal and active.

246       Mr Dooley considered, as a result of the accident, the plaintiff had suffered severe soft tissue injuries to her neck and back, resulting in the onset of neck pain radiating to the left shoulder and lumbosacral spinal pain referred to the left leg as far as the knee with associated numbness.

247       He considered her injuries to her neck and low back had stabilised.

248       Mr Dooley noted the plaintiff continued to be markedly disabled following the accident and, as far as could be determined, her physical injuries were confined to her neck and back with aggravation of degenerative changes and referred pain to her left shoulder and at times down her left arm, also with continuing severe back and left thigh pain.

249       Mr Dooley considered the plaintiff’s major problem was a psychological reaction to the accident. In addition, she appeared to have suffered from two heart attacks. She was still troubled by continuing anxiety, depression and a diffuse chronic pain syndrome.

250       Mr Dooley considered her prognosis for recovery was guarded. He thought surgery was not indicated for her spinal injuries and noted, in the case of her low back, her left femoral neuralgia probably did stem from the low back injury at L3-4, but she had no physical signs of radiculopathy affecting her left leg.

251       The plaintiff was referred to Associate Professor Brian Chambers, neurologist, in April 2008 and, more recently, in October 2009.

252       He noted that the initial examination revealed a healthy looking woman who seemed to be quite comfortable and moving fluently until the time came to examine her. She complained of exquisite tenderness on palpation of the cervical spine, particularly on the left. She was also tender in the left lumbar region and the mid thoracic region. She had normal straight leg raising bilaterally. There were no abnormal neurological signs in the upper limbs. In particular, all tendon jerks were intact. In the lower limbs there was loss of right ankle jerk, but this was the only subjective finding. The plaintiff reported subjective reduction of sensation involving the left lower leg and foot, but he noted she seemed unrestricted in her walking.

253       On this first examination, Associate Professor Chambers concluded there were some inconsistencies about the case and he was not sure there would be much he could do to help the plaintiff as he suspected there may well be a strong psychological component to her problem.

254       The plaintiff was seen again in October 2009. On examination, she presented with exaggerated illness behaviour. There was apparent exquisite sensitivity to touching the left upper chest region. There was apparent limitation of cervical and thoracolumbar spinal movement. There was apparent weakness of left upper and lower limb movements characterised by incomplete effort and giving way. There was apparent left hemi-corporeal sensory loss and all upper limb and lower limb tendon jerks were present and symmetrical.

255       He had viewed the latest MRI of the cervical spine, noting loss of cervical lordosis, multi-level disc degeneration, no spinal cord compression and no significant nerve root compression. He noted he had seen MRI scans of the plaintiff’s lumbar spine previously and was not convinced there was any significant nerve root compression.

256       In summary, it was his view the plaintiff had chronic pain syndrome. Whilst undoubtedly she has had neck and lower back injuries from the accident, in his opinion, she did not have clinical evidence of neurological complications, thus the problem has become one essentially of chronic pain management. He suggested referring her back to Dr Clayton Thomas as he considered that she would benefit from the resumption of a multi-disciplinary approach and he had no simple solution to her ongoing problems.

257       Psychiatrist, Dr Ingram, examined the plaintiff on behalf of the defendant on 9 April 2008.

258       On mental status examination, there was no evidence of any psychomotor retardation or of the plaintiff being in pain during the interview.

259       Her affect was depressed and she was tearful on numerous occasions, but there was also good reactivity and she engaged well.

260       Dr Ingram noted there was a preoccupation with depressive themes, although there was no formal thought disorder or perceptual abnormality. Her memory, concentration and intelligence seemed normal.

261       In Dr Ingram’s view, the plaintiff was suffering from two lots of psychiatric problems. Firstly, a chronic adjustment disorder with depressed mood and, secondly, residual symptoms of a post traumatic stress disorder associated with the pain disorder and secondary agoraphobia.

262       Dr Ingram considered that the plaintiff had significant psychiatric problems that had developed since the accident and it was quite possible those symptoms were severe enough that they worsened her prognosis in regard to her physical symptoms.

263       He thought the plaintiff would find it harder to deal with her chronic pain because of the level of depression and anxiety.

264       Dr Ingram felt, given the severity of the plaintiff’s symptoms, she needed more active treatment with anti-depressants, suggesting Zoloft be increased to 300 milligrams from 200 per day. Until she had had adequate trials of anti- depressants, he would not say her condition had stabilised.

265       Dr Ingram anticipated a good response to adequate treatment and thought it would probably be appropriate to review the plaintiff again in a year’s time, assuming she had the treatment.

266       On re examination on 23 November 2009 the plaintiff told Dr Ingram there had been some improvement in her psychological symptoms when she was prescribed a new antidepressant in Hospital but she had later stopped taking it because someone had told her she seemed to be acting like a zombie. Having stopped the medication her condition had deteriorated and returned to the state in which he last assessed her.

267       On mental state examination there was no evidence of her being in pain in the interview. Her affect was depressed and she was tearful on several occasions although she engaged well with normal reactivity. There was a preoccupation with her pain and depressive themes although there was no formal thought disorder or perceptual abnormality.

268       Noting the plaintiff’s improvement whilst taking anti depressants he noted that suggested the plaintiff’s symptoms would respond to appropriate treatment and he felt it all the more imperative that she discuss medication with her doctor. He considered her prognosis reasonable assuming she had the appropriate treatment.

269       Dr Ingram felt that the plaintiff was suffering from a chronic adjustment disorder with depressed mood as well as a post Traumatic Stress Disorder with panic disorder and fear of driving.

270       Ms Sandra Hacker, psychiatrist, examined the plaintiff on 29 April 2008 and, more recently, on 17 November 2009.

271       The plaintiff told her that she and her husband were living apart at the time of the accident because he was working on a house for them to live in. The plaintiff gave the version of the accident contained in her affidavit and reported to her anxiety travelling in cars.

272       On initial examination, the plaintiff’s physical symptoms included headache, left shoulder and back pain, neck and knee pain.

273       The plaintiff told her that after the accident she remained on a frame from her waist to her neck but found it difficult to work in the shop as she felt people were constantly looking at her. She stated she was unable to help her husband, especially with the display. She felt she was irritable and rude. She had to return to live in Wallan with her husband as she was unable to drive herself anywhere.

274       The plaintiff told Ms Hacker that since the accident she had gained approximately 29 kilograms in weight as she was not working and undertook no activity.

275       In terms of past history, the plaintiff told Ms Hacker that her only prior psychological assistance was when she attended a counsellor on one occasion following the death of her father.

276       The plaintiff told her that her medical conditions included a hiatus hernia, a hysterectomy and a bunion operation.

277       On the initial mental status examination, the plaintiff was intermittently tearful, but she was able to resume her composure readily and provided a cooperative logical history. Her overall mood was mildly depressed and anxious, but there were no psychotic or organic features noted.

278       It was Ms Hacker’s opinion that the plaintiff was suffering from moderately severe post traumatic stress disorder, depression and a panic disorder.

279       She considered the plaintiff would continue to require anti-depressant medication and noted it was unclear why that had been lowered. She thought referral to a psychiatrist may be beneficial. In the absence of a physical examination and opinion, she was unable to state whether the plaintiff’s chronic pain was of organic or functional origin and she thought psychological treatment should continue.

280       On re-examination, the plaintiff told Ms Hacker that her health had deteriorated since last seen, noting myocardial infarct and ongoing angina.

281       She told Ms Hacker that she currently managed to cook her own meals and could undertake housework, except vacuuming and mopping, provided she paced herself. She could not iron or hang washing on the line and she did not drive a car at all.

282       She complained of ongoing car-related anxiety and sleep disturbance, and that she had put on 27 kilograms in the last seven months.

283       She told Ms Hacker that after she saw a medico-legal psychiatrist in May 2008, she was prescribed Zoloft, but ceased taking it earlier this year because it made her feel too drowsy.

284       On mental state examination there were no cognitive abnormalities detected, the rate, volume and tone of the plaintiff’s speech was unremarkable and there were no abnormalities of the form and stream of her thought. The content of her thought was very pain focussed and was also permeated with themes of irritation and anger about her perception of the treatment she had received from the TAC. Her mood was mildly depressed and her affect was quite variable and labile. She was occasionally tearful but she retained her sense of humour.

285       Ms Hacker had available to her Dr Ingram’s report of April 2008, the report of Mr Wilde of 1 December 2008 and the report of Ms Dale, psychologist, dated 6 April 2008.

286       Ms Hacker concluded the plaintiff was suffering from a chronic adjustment disorder with depressed mood, a chronic pain syndrome associated with her medical condition and psychological factors and a resolving post traumatic stress disorder associated with panic and secondary agoraphobia.

287       She thought the plaintiff’s psychological injuries continued to be related to the accident. She noted the plaintiff’s psychological injuries had been complicated by the occurrence of a mild cardial infarct and it would appear that some of the episodes of chest pain were related to anxiety about her cardiac status.

288       In her view, the plaintiff’s post traumatic stress disorder symptoms were gradually resolving. However, her chronic pain syndrome continued to pre- occupy the plaintiff considerably and this was compounded by a view that she had an ongoing physical injury which required treatment and that she was not having it because she is a TAC client.

289       Ms Hacker noted the possibility of the plaintiff being referred for pain management to a multi-disciplinary pain clinic may be helpful but, in her view, the plaintiff’s chronic pain syndrome had become quite entrenched and the prognosis in relation to that could not be optimistic.

290       In Ms Hacker’s opinion, the plaintiff’s psychological injuries contributed to her incapacity for employment.

Investigations

291       A CT of the lumbosacral spine was carried out at Dr Damigo’s request on 26 October 2001.

292       At L3-4 there was a minimal disc herniation causing slight indentation of the dural sac. At L4-5 there was a moderate diffuse disc herniation causing some compromise of the dural sac. At L4-5 no disc herniation was seen.

293       A CT of the lumbosacral spine was carried out on 16 August 2006. At L3-4 there was a slight generalised disc bulge with a moderate sized left-sided posterior prolapse involving the neural exit foramen. There was slight thecal compression and narrowing of the canal. There was also a slight disc bulge into the lower portion of the right neural exit foramen.

294       At L4-5 there was mild facet arthropathy. There was a slight generalised disc bulge with slight thecal compression and bulging to the lower portions of the neural foramina. At L5-S1 there was a mild facet hypertrophy with slight narrowing of the neural foramina.

295       A CT of the cervical spine was carried out on 14 June 2006. At C4-5 there was mild broad-based disc bulging causing mild impingement of the thecal sac without evidence of effect on the cervical cord.

296       At C4-5 there was a larger disc herniation with central and bilateral paracentral components causing impingement of the thecal sac with suggestion of compromising the left side exiting C5 nerve root.

297       At C5-6, once again, there was a broad-based disc herniation with central and bilateral paracentral components – more in the left side causing impingement of the thecal sac with high suggestion of comprising the exiting left side C6 nerve root.

298       There was moderate degeneration involving both sides unco-vertebral joints with prominent osteophyte formation causing moderate narrowing of both sides neural exit foramina.

299       It was concluded, following an MRI of the lumbar spine taken 7 December 2006, that there was multi-level disc degeneration and short pedicles were identified.

300       At L2-3, there was mild mass effect upon the exiting left L2 nerve root. At L3- 4, there was bilateral subarticular recess canal stenosis (worse on the left than the right) with mild mass effect upon the traversing left L4 nerve root. There was mild bilateral neural foraminal stenosis with mild mass effect upon the exiting left L3 nerve root and there was mild central canal stenosis present.

301       At L4-5, there was mild bilateral neural foraminal stenosis without neural compromise.

302       An MRI of the lumbar spine was carried out on 3 October 2007.

303       It was concluded there was multi-level degenerative disc disease and congenitally short pedicles. A left posterolateral disc protrusion at L2-3 had slightly increased in size since the previous series on 7 December 2006 with evidence of increased mass effect upon the exiting left L2 nerve root. There was mild central canal stenosis at that level.

304       At L3-4, there was a broad-based disc bulge, more pronounced on the left, producing a mild central canal and left lateral recess stenosis as well as a moderate left foraminal stenosis with mild impingement upon the exiting the left L3 nerve root. Mild bilateral foraminal narrowing was noted at L4-5.

305       A CT of the cervical spine was performed on 26 November 2007.

306       At C2-3, there was minor lipping of the neuro central joints and a small posterior disc bulge, slightly more prominent to the left of the midline with slight thecal compression. There was also minor lipping at the neuro central joints at C3-4 and a small posterior central disc bulge with slight impression on the theca.

307       At C4-5, there was minor lipping at the right neuro central joint and there was mild posterior disc bulge with a small central protrusion with slight thecal compression.

308       At C5-6, there was mild degenerative change at the right facet joint and also at the left neuro central joint. There was a small posterior disc bulge, more prominent to the right of the midline with slight thecal compression.

309       Compared to the previous examination eighteen months ago, the appearance of the discs at C3-4, C4-5 and C5-6 had not markedly altered.

310       There was a left shoulder ultrasound carried out on 4 June 2008 which had findings suggestive of common extensive calcific tendonosis with some mild calcific tendonosis of the common flexor tendons.

311       An MRI of the cervical spine was carried out on 21 August 2008. It was concluded there was multi-level degenerative disc disease. There were disc bulges at C4-5 and C5-6 producing minor indentation of the anterior surface of this cord. Multi-level foraminal stenosis were noted as described above secondary to unco-vertebral osteophytes. This was moderate to marked in degree at C5-6 and moderate in degree bilaterally at C7-T1.

312       A CT of the thoracic spine was carried out on 20 April 2009. It was concluded there were no definite diagnostic features. Mild degenerative changes were noted in the mid thoracic region, particularly involving facet joints, and there was no overt fracture.

Other evidence

313       The plaintiff’s personal tax return for the financial year 2005-2006 set out a taxable income of $5,432 being the net profit from Pleasures and Treasures, the pawn broking business which had income of $21,016 and expenses of $15,584.

Defendant’s Medical Evidence

314       The defendant relied upon correspondence from Mr Wilde to Dr Porter dated 20 August 2007.

315       Mr Wilde noted seeing the plaintiff on 14 August 2007, at which time she complained of non-specific pain everywhere.

316       Mr Wilde advised Dr Porter that the physical examination on that day demonstrated an anxious patient who he considered was “hamming it up.” He noted the plaintiff’s posture was flexed, lumbar movements were restricted because of pain and there were no neurological findings in the lower limbs.

317       Mr Wilde noted that he told the plaintiff that he was not able to assist her with surgery or other procedures and he suggested a referral to a pain management service.

318       The defendant also relied upon the reports of Associate Professor Chambers which were tendered by the plaintiff.

319       A number of entries in the Hospital file were relied upon by the defendant.

320       On an attendance at the Hospital on either 23 June 1992 or 1997 it was noted the plaintiff weighed 64 kilograms.

321       An Emergency Department Record from the Hospital dated 19 February 2001 set out the plaintiff attended on that date post collapse and following left sided weakness. On examination there was left sided neck tenderness.

322       The plaintiff’s weight was noted as 66.2 kilograms when she attended the Hospital for surgery to her left foot in October 2005.

323        A Post Acute Care Referral Form from the Hospital dated 5 April 2006 set out that the plaintiff was a 48 year old lady who lived with her husband. “Recently moved back in after ? separation.” The reason for admission was cervical spine injury post motor vehicle accident.

324       As part of her cardiac rehabilitation the plaintiff attended the Social Work department at the Hospital in July 2008. At that time the plaintiff identified her issues as being health, especially pain in the chest, intimacy issues, and finances – “awaiting payout from TAC.”

325       The plaintiff attended Dr Sophie Liu at the Practice on 10 and 12 May 2005 complaining of lack of libido.

326       The plaintiff was referred to Mr Tran orthopaedic surgeon by Dr Damigos on 17 June 2002 regarding her low back pain and left sciatica that had been getting worse over the previous tow years. In the referral letter, Dr Damigos noted the CT of the lumbar spine taken the previous year showed some bulging discs. At that time the plaintiff was being prescribed inter alia Panamax and Mersyndol.

327       Mr Dooley saw the plaintiff on referral from Dr Damigos in July 2002. He noted the plaintiff had been complaining of left sciatica with numbness extending into the dorsal aspect of the left toe for about two years.

328       On examination Mr Dooley found full straight leg raising and no abnormal neurology. He noted that x-rays including a CT scan however showed an L4- 5 prolapse, which was mild but definite, and probably the cause of her left sciatica. He thought that she would benefit from an exercise program. In his view she certainly did not require an operation nor would she benefit from an epidural injection.

Other evidence

329       The defendant tendered the plaintiff’s claim for compensation signed by her on 1 May 2006.

330       Also tendered was correspondence from Centrelink to the plaintiff detailing her disability support benefits and money owed by her to Centrelink which appeared to be in excess of the amount referred to in correspondence relied upon by the plaintiff.

Overview

331       Whilst there seems to be a lack of a consistent firm diagnosis by medical practitioners in this case, I accept that the plaintiff suffered a soft tissue injury or an aggravation of pre existing degenerative changes to her spine resulting from the accident.

332       I accept that it is relatively established that the use of the spine can be regarded as a single body function and that damage to vertebral levels in a single incident can be aggregated - see Josevski v Chiquitta Mushrooms P/L & VWA (2007) VCC 1653, Trajkovska v Prentice & TAC (2008) VCC 479.

333       In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and long term.

334       In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”

335       Obviously when considering the extent of any pre existing condition, the plaintiff’s evidence is particularly relevant. In this case a considerable attack was made on the plaintiff’s credit by counsel for the defendant.

336       In her affidavits, the plaintiff clearly understated the level of her back problem prior to the accident. It became apparent from Dr Damigos’ notes at the Clinic that the plaintiff complained of back pain initially in 1998 and then with increasing frequency, between 2000 to 2002 during which time she was prescribed medication, sent for specialist referral and also investigations including a CT scan were arranged.

337       Of significance the plaintiff’s problems during that time were left sided - a problem of which she still complains.

338       Mr Dooley who saw the plaintiff in mid 2002 thought the CT scan showed a prolapse at L4-5 which he thought was mild but definite and probably the cause of her left sciatica. Whilst the plaintiff only mentioned neck problems to Dr Damigos on a few occasions before the accident, she did complain on a number of visits from 1996 to 2000 of left sided pain particularly in the left upper limb.

339       Clearly given this history the plaintiff’s answers on her claim form dated 1 May 2006 to various questions relating to her pre accident history were inaccurate.

340       However it does not appear that these pre accident spinal problems were ongoing as of the said date with no mention of treatment specifically for her spine following the visit to Mr. Dooley in mid 2002.

341       This history however is relevant as it goes to the issue of the plaintiff’s credit. Other issues in relation to which I had concern as to the plaintiff’s credit were her apparent willingness to tell doctors she was working at the time of the accident and had not since the accident because of her injuries and her failure to disclose she was in fact on a disability support pension at the time of the accident and had so been since 1998 because of a foot problem.

342       These matters were of more concern to me than the fact that the plaintiff was prepared to falsely declare that she was the driver of the car involved in a number of traffic infringements so her family, her son in particular would not lose his licence.

343       Further, I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

344       Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.

345       Whilst impairment not injury is the relevant consideration, I must be satisfied that the impairment to the plaintiff’s spine is organically based when dealing with the claim pursuant to sub-paragraph (a). I am, however, entitled to take into account the expected mental consequences of a physical injury as Winneke P held in Richards v Wylie (2000) 1 VR 79.

346       It was submitted by counsel for the defendant that any impairment the plaintiff has in relation to her neck or back does not have an ongoing organic basis.

347       I accept that most of the plaintiff’s treating doctors did not find an ongoing organic basis for the plaintiff’s complaints and considered that non organic factors had overtaken her presentation.

348       It is clear from Mr Wilde’s latest report that Dr Thomas saw the plaintiff as recently as 10 November 2008 at which time Dr Thomas opined that the plaintiff was suffering from diffusive widespread pain syndrome.

349       The last report from Dr Thomas followed his February 2007 examination when he diagnosed a diffuse and widespread pain syndrome possibly fibromyalgic in origin.

350       A similar view was apparent from Mr Wilde’s report relating to his examination of the plaintiff in August 2007 but not to the extent of the comments made by him in correspondence to Dr Porter that it was his view the plaintiff was “hamming it up”. He had simply noted in the report to the plaintiff’s solicitors following this examination that there were no neurological findings in the lower limbs and that the plaintiff was an anxious patient who was difficult to examine.

351       Following a further examination in September 2008 and having seen the most recent MRI of the cervical spine, Mr Wilde noted it was difficult to be certain exactly what anatomical structure was causing the plaintiff’s pain. He thought the reason for the severity of her persistent pain was that she had developed a complex regional pain syndrome due to an abnormal neurological response with further psychological overlay which further aggravated her symptoms.

352       Mr Wilde came to this view having seen all the investigations which had been carried out.

353       It appears from the plaintiff’s affidavit that she again saw Mr. Wilde on 27 October 2009. There is no report from Mr. Wilde relating to that attendance.

354       Another treating doctor who is not supportive of the plaintiff’s claim that there is an ongoing organic basis for her complaints is Associate Professor Chambers whose correspondence to the plaintiff’s current general practitioner is relied upon by the defendant.

355       Following two examinations, the most recent in October 2009 and having viewed all the investigations, Professor Chambers concluded that whilst the plaintiff undoubtedly had spinal injuries from the accident she did not have clinical evidence of neurological complications. He considered her presentation on examination was one of a woman with exaggerated illness behaviour who he considered was suffering from chronic pain syndrome.

356       The plaintiff’s general practitioners at the Practice also are not of much assistance to her claim. None were aware of the plaintiff having any spinal problems before the accident, the plaintiff having attended the Clinic in relation thereto.

357       Dr Saeed who last reported in February 2007 thought at that time that there were no such injuries sustained in the accident that may lead to permanent physical impairment.

358       When Dr Porter last reported in February 2008 she thought the plaintiff’s biggest problem was psychological and that with time the plaintiff’s post traumatic stress disorder symptoms were improving.

359       The only evidence from the plaintiff’s current doctor, Dr Greculescu was her referral of the plaintiff to Professor Chambers in October 2009 when she expressed concern she had exhausted all possibilities to help the plaintiff. Dr Greculescu noted the plaintiff’s neurovegative symptoms – symptoms caused by changes in the nervous system that occur during depression - were new and were the cause of the plaintiff’s poor functionality.

360       Dr Greculescu also mentioned in that referral that the plaintiff had been referred to a rheumatologist. No report is before the Court from that specialist.

361       Dr Karlov whom the plaintiff saw once in mid 2008 at the plaintiff’s instigation was told by the plaintiff of pain beginning in the infra mammary area extending to the upper chest, radiating to the shoulder blades and down the left arm and up the side of her neck which that started two years ago and had become more troublesome over the past seven months. He is the only medical practitioner who considered the recent cervical MRI of relevance to the plaintiff’s complaints. He diagnosed cervical radiculopathy and costo chondritis. He considered some of the findings on MRI were severe and the possibility of the plaintiff needing surgical intervention could not be ruled out.

362       Mr Steedman who examined the plaintiff on a medico legal basis on two occasions provided no diagnosis nor any real analysis of any accident related spinal condition.

363       In this case Mr Dooley is the most supportive of the plaintiff’s claim finding she suffered a severe soft tissue injury in the accident from which she continued to be severely disabled. Mr Dooley thought the problems with her lumbar spine related to the L3-4 level – a level at which counsel for the plaintiff submitted changes were apparent after the accident. However Mr Wilde injected this level in September 2006 and the plaintiff obtained no relief from that procedure.

364       Mr Dooley did not appear to be aware he had treated the plaintiff in 2002 at which time he diagnosed an L4-5 prolapse with left sciatic pain.

365       Mr Dooley did note however that the plaintiff’s major problem was her psychological reaction to the accident, noting that she was still troubled by continuing anxiety, depression and a diffuse chronic pain syndrome.

366       The plaintiff is focussed on the accident as the cause of her pain and her other problems, as her answers in cross examination indicated as did her histories to various doctors indicated.

367       As Mr Danne noted the plaintiff and her husband were quite fixated in the belief that all of their current life problems were related to the accident

368       The plaintiff herself blames her problems with weight and sex on the accident when she clearly had problems in respect of both issues prior thereto. Further she attributes her stomach and heart problems to the accident when medical opinion is that they are not related.

369       The plaintiff’s complaints in recent times have included facial numbness and she explained in cross examination that she takes regular Panadeine Forte for pain in “every inch of her body.”

370       Whilst I agree with the submission of counsel for the plaintiff that if there is an ongoing organic basis for an impairment the presence of non organic factors does not preclude a finding of serious injury, I do not accept that this is the situation in this case.

371       Further I do not accept that it is permissible to add a chronic pain syndrome to an organic impairment to establish an impairment under sub paragraph (a).

372       If the impairment is not the result of organic damage but rather a mental or behavioural reaction to past damage or trauma, the condition producing the loss or impairment – in this case a chronic pain syndrome - is to be assessed according to the criteria found in sub paragraph (c) not (a) – Buchanan JA in Richards v Wylie at page 89.

373        In my view, at present the basis or genesis of the plaintiff’s pain is not her spinal condition but a condition that is psychogenic or psychosomatic in nature.

374       In these circumstances, the plaintiff has failed to establish that the injuries suffered in the accident have at the time of the hearing produced an ongoing organic impairment.

375       As her pain is psychogenic in its basis, the impairment is not now organic and the injury cannot be properly characterised as one falling within paragraph (a) and her application brought pursuant thereto is dismissed.

376       The issue is then whether the plaintiff’s chronic pain syndrome or any other accident related mental condition from which she is presently suffering is severe and long term.

377       I accept that a chronic pain syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.

378       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.

379       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

380       Whilst dealing with the Accident Compensation Act in the Second Reading Speech on the Bill the Government recognised it was proper to maintain a higher threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a condition.

381       Prior to the accident, the plaintiff had experienced some psychological trauma particularly in the context of her difficulties with her ex husband but I do not find that such problems resulted in a problem of any significance immediately prior to the accident.

382       Following the accident the plaintiff has been diagnosed as suffering from psychiatric disorders by her treating psychologist and two medico legal examiners. Ms Dale thought the plaintiff was suffering from a major depressive disorder moderate to severe without psychotic features together with a post traumatic stress disorder. Dr Ingram diagnosed a chronic adjustment disorder with depressed mood and post traumatic stress disorder and Dr Hacker diagnosed a chronic pain syndrome associated with a medical condition and post traumatic stress.

383       Ms Dale and Dr Hacker’s diagnosis were based to a large extent on acceptance of the presence of ongoing organic pain.

384       Ms Dale thought unless there was recovery sufficiently from the physical injuries and the plaintiff can find work her major depressive disorder was likely to remain. She considered the plaintiff’s psychological condition was related to the physical injuries and subsequent life stressors the plaintiff incurred due to the accident. Dr Hacker thought the plaintiff’s chronic pain syndrome continued to pre occupy her considerably.

385       Having found on the medical evidence that there is no ongoing organic basis for the plaintiff’s spinal complaints I do not accept Ms Dale and Dr Hacker’s diagnosis.

386       In terms of the other diagnosis of post traumatic stress disorder, whilst Dr Ingram considered the condition continued, Dr Hacker thought the symptoms had now essentially resolved. An improvement in this condition was noted by Dr Porter when she last reported in February 2008.

387       Whether any psychiatric condition is long term, it is of note that following a recent examination in November 2009 Dr Ingram noted that there had been some improvement when the plaintiff was taking an anti depressant in the past. He considered if she resumed this treatment her prognosis was reasonable.

388       Whilst the plaintiff complains of what could be described as severe consequences relating to her psychiatric condition, given my views as to the plaintiff’s credit I do not accept her evidence as to her present situation.

389       Further there is no lay evidence relied upon supporting the plaintiff’s claimed level of disability.

390       Since the accident, the plaintiff has not undergone any psychiatric treatment. She has been under the care of a psychologist since February 2007 and at times she has been prescribed anti depressant medication but is not taking it at present.

391       Whilst she describes a suicide attempt in 2006 when she took four Panadeine Forte tablets, the plaintiff did not seek medical attention at that time.

392       Taking into account all the evidence, I am not satisfied that the plaintiff has suffered a severe mental disorder in the accident.

393       Accordingly, the plaintiff’s application pursuant to sub paragraph (a) and (c) is dismissed.

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