Lunari v Transport Accident Commission
[2020] VCC 576
•12 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05073
| PAOLA (PAULA) LUNARI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2020 | |
DATE OF JUDGMENT: | 12 May 2020 | |
CASE MAY BE CITED AS: | Lunari v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 576 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – plaintiff developed psychological disorder after transport accident – whether related to transport accident – development of a post-traumatic stress disorder – nature and extent of that disorder – other physical conditions and issues and whether they are related to the psychological disorder – whether related disorder “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Leave granted to the plaintiff to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr G Smith | Polaris Lawyers |
| For the Defendant | Mr C J Blanden QC with Ms A L Wood | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 4 March 2013, Ms Lunari was involved in a significant transport accident when a vehicle she was driving was struck head-on. She described the experience as “terrifying”.
2 Ms Lunari was taken to and then discharged from hospital that day and subsequently went to see her general practitioner. She had a range of physical injuries, including a soft tissue injury to her right shoulder and intermittent neck and hip pain. These largely resolved, although the shoulder injury required treatment.
3 At the time of the accident, she was employed in the retail fashion industry. She returned to work within weeks. She had several further jobs. She left these jobs largely because of the financial state of the businesses which employed her.
4 After the accident, she developed a range of psychological symptoms including anxiety, depression, panic attacks, nightmares and avoidance behaviour. She has been diagnosed by most of her treating practitioners with a Post-Traumatic Stress Disorder (“PTSD”).
5 Earlier, in about 2006, she had been diagnosed with Meniere’s disease.[1] She has had treatment from time to time for that condition, although presently it does not give her any particular problems.
[1]Also known as Cochlear Hydrops
6 Ms Lunari has had disruptions in her life, including the death of her husband at an early age, the breakdown of a three-year relationship, the onset of menopause and the symptoms of Meniere’s disease. She says the symptoms of the PTSD are severe and debilitating. They restrict her in a range of domestic, recreational and social activities and affect her capacity for employment.
The application
7 This is a “serious injury” application. The plaintiff alleges she has suffered a “severe long-term mental … disorder”, in the nature of a PTSD. The issues to be determined in this application are:
·What is the nature and extent of the psychological disorder Ms Lunari has suffered?
·Whatever the disorder, to what extent does it arise from the transport accident and is it contributed to by other conditions and life events? Do payments made by the Transport Accident Commission (“TAC”) to the plaintiff, under the provisions of the Act, constitute an admission as to the causative relationship between the disorder and the transport accident?[2]
·To the extent the disorder is related to the transport accident, does it meet the “severe” test as required by s93(17)(c) of the Transport Accident Act 1986 (“the Act”)?
What is the nature and extent of the disorder suffered by the Plaintiff and does it arise from the transport accident?
[2]In accordance with the principles established in Ansett Australia Ltd v Taylor [2006] VSCA 171
8 After the collision, Ms Lunari was taken to the Royal Melbourne Hospital, and after several hours, was discharged home.
9 On 13 March 2013, she went to see her general practitioner at the Somerton Medical Centre. There is no report from this clinic. The clinical notes[3] record some pain in the sternum, but no reference to any psychological symptoms.
[3]Defendant’s Court Book (“DCB”) 42
10 There are several further attendances at the clinic that year, but there is no reference to psychological symptoms.
11 Ms Lunari moved to the Greenvale Medical Centre for treatment, and an entry of 12 October 2013 noted stress as a result of an accident, together with anxiety. There was further reference to a relationship breakup, menopause and feeling depressed.
12 A further consultation on 13 October 2013 referred to Ms Lunari’s daughter leaving home, the breakup of a three-year relationship, menopause, being unhappy in her current work, as well as the transport accident.
13 On 16 November 2013, a panic attack was recorded, with feelings of claustrophobia, shortness of breath and sweatiness. The notes also refer to a panic attack a month earlier.
14 In 2014, there is reference in the clinical notes to PTSD symptoms, including flashbacks, agoraphobia, panic and stress. For a period, Ms Lunari was again off work. A report from the Greenvale Medical Centre of 14 July 2014[4] makes a diagnosis of “PTSD, anxiety, depression”.
[4]Plaintiff’s Court Book (“PCB”) 26-27
15 There is an issue as to Ms Lunari’s employment after the transport accident, in particular the extent to which her loss of work on a number of occasions was related to her psychological symptoms.
16 Since coming to Australia in 2002, she has worked largely in the fashion industry, although for a period worked as the manager of a bed and breakfast venue. According to a report of Mr John Kennedy, ear, nose and throat specialist, of January 2016, he had been treating her for some time for Meniere’s disease. He said because of problems with balance and turning her body, she “finds it impossible to work”.[5]
[5]DCB 13
17 From about January 2012 until about the time of the accident, she worked for a retail clothes outlet, Mario Fontini in a sales role; however, the shop was closed and her employment ceased.
18 In February 2013, she commenced work for Olga Berg, another fashion outlet. She had several weeks off work after the transport accident. She said, upon return, that she suffered panic attacks while driving, and felt anxious, fatigued and ruminated about the accident. She said, as a result of this, she was unable to continue in that work and travelled to Italy in 2013 to visit her family. She was made redundant from this employment as the shop was closed due to financial problems.
19 Around April 2014, she started in a sales position with Montique, although says she was continuing to suffer symptoms, including panic attacks, anxiety and depression. She said she stopped working for that company as a result of a dispute about superannuation.
20 In March 2015, she commenced with a fashion store, Anthea Crawford. She said:
“... However, due to my ongoing depression, anxiety and PTSD, I stopped working there in around September 2015.”[6]
[6]PCB 13, paragraph 12
21 This statement stands in contrast to a statement of Ms Monika Glavic, her manager at Anthea Crawford.[7] She says Ms Lunari was dismissed from employment for various disciplinary reasons, including that she was constantly late. She was terminated in her probation period and was said to have taken the termination “very badly”. Ms Glavic said she did not observe Ms Lunari suffering any psychological symptoms.
[7]DCB 4-12
22 On balance, I prefer the evidence of Ms Glavic.
23 Around October 2017, Ms Lunari said she was offered a job as a manager for Cinori Shoes, on a part-time basis. She said she only lasted about two weeks because of problems with concentration, fatigue and anxiety. She has not worked since this time.
24 In 2016, she formed a relationship with her current partner, Mr Giuseppe Biancotto, and at his suggestion, in early 2018, they moved to the Gold Coast in Queensland. She has a daughter and granddaughter there.
25 In July 2019, she again travelled to Italy, but said she felt unwell and was taken to a local hospital on one occasion, suffering panic attacks and anxiety.
26 Ms Lunari’s complaints of psychological symptoms since the time of the transport accident, are supported by affidavits of her daughter, Alessandra Silvioli, and her partner.
27 In October 2015, Ms Lunari was referred by her general practitioner, to a psychiatrist, Dr Ravindra Srinivasaraju. According to that practitioner’s report,[8] he treated her over a period in 2015 and 2016. He obtained a history of a range of symptoms since the transport accident, including fear and anxiety while driving a car, panic attacks, nightmares and flashbacks of the accident, although did not report depressive symptoms nor evidence of major anxiety. Dr Srinivasaraju considered Ms Lunari was suffering a Chronic PTSD, precipitated by the transport accident. This, he said, led to chronic stress, with anxiety features, affected her self-esteem and restricted her driving and social outlets. He prescribed anti-depressant medication and thought there had been some gradual improvement after six months of treatment.
[8]PCB 33
28 In a letter from Ms Anna Manolopoulos, orthopaedic surgeon, of August 2016,[9] that practitioner set out details of the treatment of Ms Lunari’s right shoulder and said she had provided a letter to Centrelink, given the right shoulder contributed to Ms Lunari’s difficulties in finding work.
[9]PCB 32
29 In May 2018, after her move to the Gold Coast, Ms Lunari consulted a general practitioner, Dr Olga Missiouris. She received a history of anxiety, low mood and symptoms of PTSD. She referred to Ms Lunari to a psychologist, Ms Kym Henricksen, and psychiatrist, Dr Asha Sadasivan. Dr Missiouris received a history of social isolation, difficulties with concentration and avoidance behaviour. Ms Lunari described flashbacks to the accident with severe panic attacks, insomnia and lowered mood. These symptoms affected her self esteem and confidence. Treatment progressed with this practitioner until October 2019, with some improvement in symptoms. According to her report:
“According to Psychiatrist and Psychologist reports, Ms Lunari has a long history of mental illness, which is a chronic condition with phases of remission and exacerbation of the symptoms.”[10]
[10]PCB 30
30 However, it is uncertain whether “a long history” means going back to the accident or going back before it.
31 Medications prescribed included Abilify (an antipsychotic, although used to treat depression) and Cymbalta (an anti-depressant).
32 While in Queensland, from August 2018, Ms Lunari has been treated by a psychiatrist, Dr Asha Sadasivan. In her report,[11] she received an extensive history, including of the Meniere’s disease, dizziness and tinnitus. She noted that the fear of falling had improved significantly with medications and that Ms Lunari’s anxiety relating to being in a car had diminished. According to the report:
“On her last review Paula reported no major symptoms of anxiety or panic attacks. Her mood was euthymic and fairly stable.”[12]
[11]PCB 38
[12]PCB 40
33 Dr Sadasivan also noted that symptoms of nightmares and flashbacks were not reported during her treatment. At the present time, Cymbalta and Abilify are being prescribed, albeit in low doses.
34 Dr Sadasivan said:
“Paula was diagnosed with Post traumatic stress disorder after the accident. She has seen me 5 years after the injury, while under my care, trauma related symptoms were no longer the predominant morbidity, she was suffering from major depressive disorder. When she presented in 2018, she had lost a lot of confidence in herself, she was withdrawn, had low energy levels, and had a fear of falling over. She would get anxious when she had to function outside of her basic activities. She did not report any current nightmares or flashbacks.
…
Major depressive disorder was caused by the transport accident. Anxiety symptoms were caused by both, the accident as well as by the Meniere’s disease, particularly the unsteadiness on her feet, vertigo and fear of falls.
…
Paula reports relatively stable mental state. She is on Cymbalta 30 mg, and Ability 2.5 mg mane. Both medications are at a very low dose. She responded better to smaller dose.
…
In my opinion, her prognosis is good, she has been a lot more functional, she is more independent, she is now driving short distances, especially for her doctor’s appointments and grocery shopping.
…
… Paula will require long term treatment, she has been adhering to her treatment … it’s difficult to predict the duration of the required treatment.
…
Paula has a limited social life in Gold Coast, most of her family are in Melbourne. She is fairly independent with her activities of daily living. Until the accident, Paula worked mostly in retail. Paula has not worked for a long time. It is likely that she would require a very gradual transition to any employment. She would benefit from occupational rehabilitation.”[13]
[13]PCB 41-43
35 In addition to psychiatric treatment, Ms Lunari has been treated by Kym Henricksen, psychologist, from June 2018 to the present, and attended thirty counselling sessions. Initially, Ms Henricksen said Ms Lunari reported severe depressive symptoms, anxiety, including panic attacks, stress and trauma-related symptoms with low self-esteem and self-confidence. She noted that in September 2019, Ms Lunari had increased her driving and as a result, reported reduced symptoms and had become somewhat more confident. She thought Ms Lunari could possibly work in the future, on a part-time basis.
36 Ms Henricksen set out in detail Ms Lunari’s symptoms as at March 2020. She said:
“… Symptoms of depression experienced ‘some of the time’ reportedly included low mood, lack of positive feeling, lack of initiative, lack of enthusiasm, feelings of worthlessness, feelings of hopelessness, and feeling that life is meaningless. Symptoms of anxiety experienced ‘most of the time’ were reported to include difficulty breathing, feelings of panic, and racing heart. Anxiety symptoms experienced ‘a good part of the time’ reportedly included dry mouth and feeling scared without good reason. Trembling was reported to occur ‘some of the time’ . Symptoms of stress reportedly included difficulty relaxing, a tendency to overreact to situations, agitation, irritability, nervous energy and impatience, and were reportedly experienced ‘some’ to ‘a good part’ of the time.
Ms Lunari also completed the PTSD Checklist on the 18th March 2020, with scores indicative of a severe level of symptoms. Trauma-related symptoms reported included intrusion symptoms (including flashbacks, memories, thoughts, images, nightmares re MVA), avoidance symptoms (including avoiding thinking or talking about the MVA and avoidance of feelings related to it), arousal/reactivity symptoms (including irritability, overreactiveness, difficulty concentrating, hyper-vigilance, jumpy in the car, physical tension, heart pounding, trouble breathing), and negative mood and cognitions (including feeling distant from others, emotionally numb, loss of interest in previously enjoyed activities, feeling as though her future will somehow be cut short).”[14]
[14]PCB 50
37 Ms Henricksen said the prognosis was difficult to determine. She said the described symptoms continued to impede Ms Lunari’s ability to function in her day-to-day activities and in any work. She thought there was hope for progression in the long term, as Ms Lunari was motivated and willing to engage in ongoing treatment. Ms Henricksen concluded:
“Ms Lunari’s symptoms appear to impede her ability to engage in vocational, social, domestic and recreational activities, at the present time. Restrictions to activities due to her symptoms and the impact of these include:
• Inability to work due to impact of symptoms, low confidence in ability to cope with work in the future
• Feeling disconnected from family and friends, decreased interest, enjoyment, and ability to participate fully in family events and social activities, reduced interaction and participation in conversation
• Difficulty coping with being in crowded places
• Lack of energy and reduced motivation for daily household tasks or recreational activities
These difficulties remain ongoing at this time and it is thought unlikely they will abate in the near future.”[15]
[15]PCB 51-52
38 Ms Lunari was examined in 2014 and 2020 by Dr Albert Kaplan, consultant psychiatrist. In his first report, he concluded she was suffering from some features of PTSD but was uncertain as to the long-term prognosis. In his further report of March 2020, having obtained a history of the symptoms from which she was suffering, including intrusive thoughts and flashbacks of the transport accident, Dr Kaplan considered that Ms Lunari’s psychiatric condition had not improved and that she satisfied the diagnosis for PTSD. He thought it would be necessary for her to continue psychiatric and psychological treatment for twelve to twenty-four months, and said the prognosis generally was unfavourable. He said she had no capacity to perform her pre-injury duties nor other suitable employment, and that incapacity was likely to persist.
39 Dr David Weissman, psychiatrist, examined Ms Lunari in March 2020. He received a history of symptoms, including anxiety in a car, bad dreams and an aversion to the accident site. She told him of occasional flashbacks and that her personality had completely changed. She slept through the night with medication but her interests, energy and motivation were affected. She lacked self-esteem and confidence.
40 Dr Weissman considered that the transport accident was still emotionally distressing and traumatic for Ms Lunari. He examined other issues in her life, including the death of her husband and sadness following a relationship breakdown in 2013, although described her personality before the transport accident as independent, self-reliant and industrious.
41 Dr Weissman concluded Ms Lunari suffered an Acute Distress Disorder and an Adjustment Disorder as a result of the accident. He said this evolved into a Chronic PTSD from which she was still suffering. He also thought she had developed a Panic Disorder with avoidance, some agoraphobia and social withdrawal. He said there was also generalised anxiety and features of moderate mixed depressive symptoms. He concluded:
“Ms Lunari is suffering from at least a moderate group of accident-related psychiatric conditions and mental injuries as detailed. When one considers the nature, severity, extent and chronicity of her panic attacks, generalised anxiety, depressed mood, loss of self-esteem and confidence, and psychiatrically based cognitive dysfunction (evident during today’s interview), I genuinely believe that she would be totally incapacitated for all work. But for the subject transport accident on the balance of probabilities, she would have continued to work full-time as a retail manager. Furthermore, her psychiatric incapacity for work would be further entrenched and reinforced by her advancing age (almost 63) and time out of employment (at least three years if not five years in terms of regular employment).”[16]
[16]PCB 106
42 Dr Weissman thought the prognosis for the future was guarded and relatively poor.
43 According to a letter of 11 September 2018 from Dr Brent McMonagle, a specialist ear, nose and throat surgeon, he noted that, at that time, Ms Lunari was suffering hearing loss, worse in the left ear than the right, with constant bilateral ringing tinnitus, which has fluctuated over the last twenty years. Ms Lunari also complained of rotational vertigo, lasting weeks at a time.
44 Ms Lunari was examined by Associate Professor Peter Doherty, consultant psychiatrist, in April 2020. He received a history of the circumstances of the transport accident. Ms Lunari described panicking and the vehicle in which she was travelling being pushed backwards. She further said she could not feel her spine, nor leg. She could not get out of the vehicle and was assisted by a bystander who rang an ambulance.
45 Associate Professor Doherty received a history, including of the death of her husband, the diagnosis and symptoms relating to Meniere’s disease and tinnitus, together with panic attacks and nightmares relating to the transport accident. She said she needed medication to fall asleep, was able to do a range of domestic duties, was restricted in driving a car, suffered loss of concentration and had “tension in her body”. Her mood was reported as fluctuating, with reduced outside interests and symptoms of anxiety, including feeling tense and nervy.
46 Associate Professor Doherty described the transport accident as “minor”, despite the history provided by Ms Lunari. In relation to panic attacks, he said they arose because of her wariness of driving and not the traumatic experience related to the transport accident. He said the panic attacks were thus unrelated. He said Ms Lunari had a worsening of mental health in 2018, but that was unrelated to the transport accident. He said there were no psychological symptoms initially after the accident. These only developed towards the end of 2013, with a report of depression and panic episodes.
47 He said he found no strong evidence to support a diagnosis of PTSD. He said the “nature and circumstances” of the transport accident did not lend itself to that diagnosis. He said the first symptoms of traumatisation were not until October 2013 and were in the context of other stressful life events. He said:
“… there is nothing more than a mild adjustment reaction in consequence to the transport accident. There was the development of an unrelated panic disorder in late 2013 and that panic disorder has fluctuated in intensity as has the claimant’s life circumstances since October 2013.”[17]
[17]DCB 25
48 He thought overall the prognosis was good and that Ms Lunari had a capacity for work.
49 I do not accept the opinion of Associate Professor Doherty. He is the only practitioner who has concluded that Ms Lunari’s psychological disorder is mild and unrelated to the transport accident. Further, I was unimpressed with his opinion that the circumstances of the collision were “mild” and “minor”. That does not accord with the history in the various medical reports that were provided to him nor the history given to him by Ms Lunari.
50 While the reports of Dr Kaplan and Dr Weissman are of assistance, as they are recent and each contain a comprehensive history, the practitioners who, in my view, are in the best position to assess Ms Lunari’s current psychological state, and its relationship to the transport accident, are the current treating practitioners, Dr Missiouris, the general practitioner, Ms Henricksen, psychologist, and the treating psychiatrist, Dr Asha Sadasivan. They have treated Ms Lunari over the last several years and seen her on many occasions. I was impressed with the reports of Ms Henricksen and Dr Sadasivan. They were informed, balanced and thorough.
51 The earlier treating psychiatrist, Dr Ravindra Srinivasaraju, diagnosed chronic PTSD, precipitated by the transport accident.
52 Ms Henricksen has seen Ms Lunari on thirty or so occasions. She set out in extensive detail all of the various symptoms she had observed, or obtained a history of relating to Ms Lunari’s depression, anxiety and PTSD. These, she said, impeded Ms Lunari’s vocational, social, domestic and recreational activities, although, with treatment, there was the prospect of further improvement.
53 Dr Sadasivan, diagnosed a Major Depressive Disorder related to the transport accident. The anxiety symptoms, she said, were related both to the accident and the Meniere’s disease; however, the trauma-related symptoms were no longer significant in Dr Sadasivan’s view. Further, she thought that was a good prognosis as Ms Lunari was becoming more independent, driving short distances and undertaking her shopping. She said Ms Lunari would require long-term treatment and a gradual transition to employment.
54 Mr Blanden, counsel for the defendant, points to the lack of recorded psychological symptoms until panic attacks in October and November 2013. He emphasised that there was no report from the practitioner who treated Ms Lunari after the accident. However, the clinical notes of that practice are available. Further, Ms Lunari explained that she felt “tension over her body” and was unable to identify what was wrong with her in the months after the accident. It is not uncommon for there to be a delay in the onset of post-traumatic symptoms and for those symptoms to fluctuate. I do not accept the defendant’s proposition that the delay in recorded symptoms between March and October 2013 is of significant consequence. By the end of 2013, the symptoms were being clearly recorded, and a diagnosis of PTSD made in early 2014.
55 From the reports of the treating practitioners, I am satisfied Ms Lunari suffers either PTSD or a Major Depressive Disorder with a range of symptoms, particularly depressive symptoms, which affect her in the various ways as described by the treating practitioners. I accept these symptoms are related to the transport accident.
56 I do not find it necessary to determine whether the payments made by the TAC give rise to an admission as to the causative relationship between the condition and the transport accident.
Does the disorder achieve the “severe” level?
57 In relation to Ms Lunari’s employment, I am not satisfied that her psychological state led to the loss of the various jobs she held in retail outlets after the transport accident. The loss of the employment is more related to the financial status of the business or for disciplinary reasons. Further, I accept the view of Dr Sadasivan and Ms Henricksen that there is the prospect of employment in the future, should she determine to seek it, albeit on a staged basis. However, I do accept that her work capacity at the present time is affected and the likelihood is that any employment would be part time.
58 In considering whether the disorder achieves the “severe” level, I accept Ms Lunari suffers the following consequences, which are related to the transport accident:
·Over the years she has suffered panic attacks, although there have been less recently with treatment. She has suffered nightmares and flashbacks, and other trauma-type symptoms which are referable to the transport accident. However, with treatment over the last several years, these have abated to a significant extent.
·She suffers depressive symptoms, including low mood, lack of initiative and enthusiasm, with feelings of worthlessness and hopelessness. There is also an effect upon her confidence and self-esteem.
·While there may be some contribution towards these symptoms because of Ms Lunari’s Meniere’s disease, I am satisfied they are largely transport-accident related and the contribution of the disease is minor only.
·These symptoms have led to a restriction in Ms Lunari’s recreational activities and her ability to socialise. There is some impact upon her driving, although she has been able to return to driving, albeit for shorter distances.
·There is some impact upon her capacity to return to work, although again this has improved of recent years, and, with continued treatment, she will have the capacity to return to staged employment at least on a part-time basis
·Most significantly in my view, her condition has required ongoing and significant treatment by not only her general practitioner, but with regular visits to a psychiatrist and psychologist. Further, there is the prescription of anti-depressant and anti-psychotic medication, albeit in low doses.
59 In considering these symptoms and consequences, “severe” is a word of stronger force than “serious”. Thus the consequences to Ms Lunari are at a higher level than would be the case had she suffered a physical injury.
60 I am satisfied that the symptoms and consequences do achieve the “severe” level. The transport accident and the things which have flowed have had a very marked effect upon Ms Lunari’s life, in particular the need for psychiatric and psychological treatment and medication. The practitioners currently treating her are of the view that will continue into the foreseeable future.
61 I shall grant leave to bring common law proceedings and make other appropriate orders.
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