Maangi v Transport Accident Commission
[2020] VCC 1247
•25 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00398
| LEONIE JUDITH MAANGI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 August 2020 | |
DATE OF JUDGMENT: | 25 August 2020 | |
CASE MAY BE CITED AS: | Maangi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1247 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – no issue road rage incident constituted a transport accident – nature and extent of physical and psychiatric injury – Chronic Pain Syndrome
Legislation Cited: Transport Accident Act 1986, s94(3)(d)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109
Judgment: Application in relation to psychiatric injury under sub-paragraph (c) dismissed. Leave to the plaintiff to bring common-law proceedings under sub-paragraph (a) for “pain and suffering” damages in respect of physical injury in respect to the incident of 25 March 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab with Dr A D Newman | Maurice Blackburn |
| For the Defendant | Mr P Y Rattray QC with Ms J L Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction, background, pre-existing health issues
1The Oxford Dictionary defines ‘road rage’ as ‘sudden violent anger provoked in a motorist by the actions of another driver’. On 25 March 2015, Leonie Maangi, the plaintiff, was subjected to a road rage incident. A car in front of her at traffic lights failed to move off when the lights changed to green, so she tooted her horn and drove around that car. This provoked sudden violent anger in the driver of the other car. There was then a scenario where the plaintiff was pursued by the other driver in that car, driving in an aggressive and threatening manner towards the plaintiff, with a minor collision at one stage between the two cars. The whole event lasted for a period of approximately 30 minutes (“the incident”).[1]
[1]Affidavit of plaintiff sworn 10 April 2019, Plaintiff’s Court Book (“PCB”) 3, paragraph 12
2Pausing, there is no issue that the incident is a “transport accident” for the purposes of the Transport Accident Act 1986 (“the Act”).
3The plaintiff was born in 1985. She is married, but separated from her husband, with four small children. As at the date of the incident, she was employed in an administrative position for Quench Natural Spring Water in Carrum Downs, working 29 hours per week, spread over four days, with Wednesday off for the noble aim of work/life balance.[2]
[2]Transcript (“T”) 47, Line (“L”) 23
4The plaintiff has a range of unrelated health issues. Several years before the incident, she developed neck pain, bad enough to require referral to the neurosurgeon Mr Nair, in June 2013. He then noted chronic neck pain thought to be secondary to a left paracentral C4-5 disc protrusion as shown on a CT scan.[3] At review in August 2013, he suggested ongoing conservative treatment and referral to a pain clinic.[4] Despite such referral, it seems the plaintiff did not actually attend a pain clinic and her neck pain resolved. She did not have any neck symptoms in the twelve to eighteen months leading up to the incident.
[3]PCB 38
[4]PCB 40
5The plaintiff has also had episodes of pelvic instability and pain associated with each of her pregnancies,[5] but such pain and instability also resolved post pregnancies.
[5]PCB 53
6The other relevant pre-existing medical condition is a depressive/anxiety condition, made worse in the post-natal period[6] and requiring the prescription of anti-depressant medication to treat it. However, once again this condition had effectively resolved by the time of the incident.
[6]PCB 35
7The plaintiff does not claim that any of her unrelated medical conditions were aggravated in the incident. The pre-existing conditions were of sufficient significance to the plaintiff that she was granted and remained in receipt of a disability support pension from approximately 2009 through until about the time of the incident.[7]
[7]T34, L1-13
8Following the incident, the plaintiff again developed pain in her neck. She complains of ongoing pain in her neck ever since and attributes it to the incident. Her “primary submission”,[8] is that she has suffered a serious physical injury by way of impairment to the neck and/or the nervous system, and in particular the nerve pathways, with central sensitisation and neuropathic pain.[9] In addition, but really in the alternative to close the gate on the defendant, the plaintiff claims to have suffered a severe psychiatric injury as a consequence of the incident.
[8]T97, L20-21
[9]T2, L28
9In reply, the defendant’s position is that the plaintiff has not suffered either a serious physical injury or a severe psychiatric condition. The defendant submits that if there is an ongoing explanation for the plaintiff’s complaints of neck pain, then the best explanation for that is a psychological reaction, but regardless, that condition does not meet the serious/severe test. In addition, the defendant submits that the plaintiff has failed to take up the option of a pain management program and so issues arise as to whether any injury is long-term and serious with the prospect of improvement with further treatment.
10In addition, the defendant raises the credit of the plaintiff insofar as the ‘unreliability’ of her history of her unrelated medical conditions, as set out in her affidavit material, and what she has told the doctors, so as to impugn the doctors’ opinions.
The application
11This is a serious injury application. The broad issues to be determined in this application are to what extent the plaintiff’s current symptoms relate to the transport accident and whether such symptoms meet the serious test, as required in s93(17)(a) of the Act, or the severe test, as required by s93(17)(c) of the Act.
12The principles in respect to such an application are well-known and, in this case, they are not in dispute.
13Sharpening the focus reveals the main issues that arise for determination in this case can be narrowed to:
·the credit of the plaintiff;
·the nature and extent of any physical injury suffered by the plaintiff;
·the nature and extent of any psychological or psychiatric disorder suffered by the plaintiff;
·whether the plaintiff’s condition is ‘long-term’ or sufficiently permanent to determine the serious injury issue.
Was the Plaintiff a credible witness?
14As has been said many times before, in cases of the present kind, the credit of the applicant will often be critically important.[10]
[10]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph [87]
15The defendant does not make a direct attack on the credit of the plaintiff in this case. It does not suggest that she was anything other than an honest witness in her oral evidence. Indeed, my impression of her when giving evidence was that of an honest witness doing her best to recall events that had occurred over her life and as a consequence of the incident, without exaggeration or embellishment.
16The defendant’s credit attack is more subtle. The defendant submits that the plaintiff is, for whatever reason, an unreliable historian, both in her affidavits and in the histories given to doctors, and that her unreliability impugns her credit. Having been impressed by the straightforward manner in which she gave evidence, I do not accept that submission. I do accept that, at times, she has not given a full and complete history. For example her affidavit material does not fully set out her past medical history; however, in the witness box, she did not seek to downplay any of her previous medical conditions. Neither did she seek to exaggerate the nature of the collision that occurred between her vehicle and the vehicle driven by the road rage driver. I have available her medical records. I have available considerable medical material in addition to her own affidavit and viva voce evidence. I am satisfied that I have sufficient reliable evidence to determine the application.
17Therefore, when the whole of the evidence is looked at, I do not accept that the evidence is so unreliable so as to defeat her serious injury application. I do, however, accept that where a medical practitioner has an incomplete history, it is necessary to examine the objective evidence to see whether it supports the opinion expressed by the medical practitioner.
Should the Plaintiff undergo a pain management program?
18Before dealing with the medical material, it is convenient to deal with the issue that arose when the case was opened, namely whether the plaintiff needs to undergo a pain management program and whether or not her decision to not undergo such a program means that her condition is not ‘long term’ and/or is not sufficiently stable so as to determine the serious injury issue.
19As part of her treatment, the plaintiff was referred to a specialist pain medicine physician, Dr Barry Slon. By letter dated 19 March 2019,[11] Dr Slon reports to the plaintiff’s treating general practitioner, Dr Morrison, that he had assessed her following the road rage incident. At that stage, Dr Slon reported that the plaintiff had –
“… quite evident posttraumatic stress disorder and to my mind she also has some features of cervicogenic headache with whiplash syndrome. …”[12]
[11]PCB 244
[12]PCB 244
20Dr Slon further reported that he did not necessarily agree that she had central sensitisation, but noted an independent medical examiner had suggested the plaintiff go down the pain management path. On that basis, he states to the general practitioner “I suppose we will have to comply for now”, and seemingly reluctantly, Dr Slon wrote for approval for the plaintiff to undergo an initial assessment for a pain management program. That assessment in fact occurred at the Victorian Rehabilitation Centre on 9 May 2019.[13]
[13]PCB 72
21As part of the pain management assessment report, it is stated that the recommendation was for a 12-week program and that the plaintiff would need taxi transport to and from the pain management centre given her reduced driving capacity. It appears the summary goal from that program was for her to be able to comprehend pain management education and implement pain management strategies. The program goals included increasing her work hours, functional tolerances and decrease her levels of psychological distress. The assessment report makes it clear that the goal was to improve the plaintiff’s ability to manage her pain and not to seek to cure it.
22In evidence-in-chief, the plaintiff explained her reasons for not taking up the option of a pain management course. She said:
“I just felt, for starters it – I’ve pretty much done everything that they would do with me in that course: so I’ve done the psychology, I’ve done the physiotherapy, and that’s basically what they were going to do as well; and then also the fact that it’s going to aggravate my pain as well, getting to and from the facility twice a week, every week for anywhere between 8 to 12 weeks I think they said it runs for.”[14]
[14]T17, L14-23
23The plaintiff also said in evidence-in-chief that she had continued with pain management with her treating psychologist and has no intention otherwise of completing a pain management program.
24In cross-examination, the plaintiff confirmed that she had in fact received a letter from the Transport Accident Commission accepting her into a pain management course and also offering her taxi travel to the clinic and back to her home.[15] She agreed that she had not made any further contact with the Transport Accident Commission after receiving the letter accepting her into the pain management course. She was asked why she would not take up the offer of the pain clinic and said:
“Umm, because I felt I had tried all of those things: I have tried everything that they were mentioning for so long, so many years, every week I have another appointment, another person to go to, another thing to try; I’ve tried all of that, that’s the thing, that’s why I was really hoping that those injections would be the answer instead of more physio that I had already attended, yeah, and more psychology or, yeah.”[16]
[15]T38, L20-21
[16]T40, L25 – T41, L2
25As discussed earlier in these reasons, the plaintiff’s treating pain specialist, Dr Slon, never seemed particularly enthusiastic that pain management was a useful form of treatment for the plaintiff. It does appear that she has had effectively the type of treatment she would get from a pain management program, namely physiotherapy, occupational therapy assessment and psychological input, albeit without the formal setting of a pain management program. The treatment via pain management is not such that it is absolutely essential to the plaintiff’s wellbeing.
26I accept the plaintiff’s evidence regarding pain management when she said “I really don’t see that it would make much difference because I’ve already gone and seen the same people that that would involve seeing”.[17] It is also relevant, in my opinion, that she is a single mother. Her children were born in December 2006, April 2009, March 2011 and May 2018. Two of her children have health issues. In addition to raising her children, the plaintiff also continues to work part-time. The author, Amy Westervelt, in her book “Forget Having It All”, sums up the working mum dilemma, where she wrote “We expect women to work like they don’t have children, and raise children like they don’t work”. In the present case, bearing in mind that the plaintiff has essentially undergone the types of treatment proposed in a formal pain management program, the defendant expects the plaintiff to be able to engage in a pain management program as if she does not have children or work commitments.
[17]T43, L12-15
27I reject the submission that her failure to undergo the pain management program is effectively unreasonable. I also reject the submission that, more than five years after the incident, the plaintiff’s condition is not “long-term” or sufficiently stable to assess the question of “serious injury” because she has not undergone pain management. I reject those submissions for the simple basis that I accept the evidence that she has already effectively had the type of treatment proposed via a pain management program without any benefit.
28In addition, it is now more five years since the incident. The general thrust of the medical material is that the plaintiff’s prognosis is guarded. Even if she was to undergo a pain management program, the outcomes of the pain management program itself, as recorded in the Victorian Rehabilitation Centre Interdisciplinary Assessment Report,[18] were quite modest. For example, in respect to driving, the plan from the program was to increase the plaintiff’s driving tolerance from five minutes to 15 minutes.[19] Aims of the program included the plaintiff engaging in regular, gentle, physical activity and participation in low level, enjoyable or achievement-based activities, and to increase her capacity for domestic tasks (meal preparation, washing and cleaning).
[18]PCB 72
[19]PCB 74
29Dr Clayton Thomas, rehabilitation physician, in a report of 2 October 2018, stated that a multidisciplinary pain management program may “assist her in understanding the nature of her pain and getting her to take control of management of this is really the next step for her”. In his further report of 7 May 2020, he stated again that a multidisciplinary pain rehabilitation program would now be appropriate. However, in the same report he also notes that the plaintiff’s ongoing neck pain with associated headache and associated disability is “likely to continue into the foreseeable future”.
30Dr Timothy Wood, a sport and exercise medicine physician, examined the plaintiff at the request of the defendant. In his report of 27 May 2020, he concurs with the opinion of Dr Thomas that a comprehensive biopsychosocial approach needs to be undertaken and suitable pain literacy education provided to the plaintiff. I interpret that opinion again to mean that the goal of pain management is just that, namely to give the plaintiff a better insight into her pain so as to manage it, but not to cure it. My conclusion is consistent with Dr Wood’s opinion that the plaintiff’s “prognosis must be considered guarded as it is over five years since her accident and she still reports ongoing significant neck and pelvic pain”.[20]
[20]PCB 129
31Accordingly, I conclude that the fact the plaintiff has not undergone a pain management program and does not intend to undergo a pain management program is not relevant to the determination of this application.
Evidence of physical injury
32As mentioned earlier, the incident was effectively a road rage incident with some contact between the plaintiff’s vehicle and the other vehicle. Whatever contact took place between the two vehicles, it was only minor. In cross-examination, the plaintiff gave evidence that:
“… he came very, very close to me, so it wasn’t a huge, you know, bang to notice he actually hit my car, but yeah, I thought he came quite close but he actually had scraped it.”[21]
[21]T36, L18-22
33Notwithstanding the minor force involved in the collision during the incident, the plaintiff sets out in her affidavit that within two weeks or so she began to develop severe neck pain.[22] Then, on 26 May 2015, she attended her general practitioner, Dr Morrison. He noted the initial symptoms consistent with post-traumatic stress, neck strain – chronic neuropathic pain post-injury, and pelvic strain.[23] In a report dated 8 November 2017, Dr Morrison states that the plaintiff’s injuries are consistent with the stated cause, namely the incident.[24]
[22]PCB 5
[23]PCB 56
[24]PCB 57
34Thereafter, the plaintiff has attended various specialists for purposes of treatment and also for medico-legal assessment.
35On 13 April 2016, the plaintiff attended Dr Juan Aw, rheumatologist. Dr Aw noted that the plaintiff had struggled with chronic neck and shoulder girdle pain since the road rage incident. His impression was of chronic muscle tightness and that the plaintiff should continue to see an exercise physiologist.[25]
[25]PCB 45
36The plaintiff underwent occupational therapy assessment with Melanie Rossato on 20 April 2016. In a report of 28 April 2016,[26] Ms Rossato made various recommendations for ongoing domestic services and assistance and noted that many domestic activities were causing an increase in the plaintiff’s neck pain.[27]
[26]PCB 47
[27]PCB 48
37The plaintiff was referred by Dr Morrison to see Dr McKernan at the Metro Pain Group. Dr McKernan examined the plaintiff on 18 May 2016 and reported that same day to Dr Morrison.[28] Dr McKernan states that his impression was that the plaintiff had evidence of both cervical facet joint pathology and disc pathology and, at that stage, recommended ongoing conservative treatment.[29]
[28]PCB 49
[29]PCB 50
38The plaintiff then attended Dr du Toit at Metro Pain Group in March 2017. Dr du Toit reported clinical signs of facet joint and third occipital mediated upper cervical pain and occipital pain, such that he wrote to TAC for approval to perform bilateral medial branch blocks.[30] In a letter to Dr Morrison dated 8 March 2017, Dr du Toit reported that the plaintiff’s:
“… neck pain started following a traumatic road rage incident …
…
In my opinion, Leonie today presented with mostly whiplash type neck pain, most likely mediated from the upper cervical facet joints and a third occipital nerve contribution.”[31]
[30]PCB 54
[31]PCB 55
39Dr du Toit also wrote that:
“Given the traumatic onset of her pain, there is no doubt that there is underlying psychological amplifiers making her pain worse.”[32]
[32]PCB 55
40Dr du Toit noted his recommendation for medial branch blocks, and that it was important for her to continue with physiotherapy.[33]
[33]PCB 55
41In a report to the plaintiff’s solicitors dated 22 January 2018,[34] Dr du Toit repeats his clinical diagnosis of a whiplash-type neck injury. He notes
atthat by that stage the request for diagnostic blocks had been refused and that the plaintiff had quite severe neck pain and associated headaches. In respect to prognosis, he described it as guarded, as the plaintiff –“… now has developed overriding neuropathic type symptoms causing pain across wider areas as well as fear avoidance with neck flexion and extension.”[35]
[34]PCB 61
[35]PCB 62
42The plaintiff attended Pilates with Michelle Crowther. In a report dated 27 August 2019,[36] Ms Crowther notes that physiotherapy had assisted the plaintiff to manage exacerbations but had not eliminated her symptoms. Ms Crowther suggested a referral of the plaintiff to the Metro Pain Group and had encouraged her to participate in group physiotherapy classes.
[36]PCB 75
43Ms Crowther says that the standard protocol for clients attending a pain management program was not to be allowed individual hands-on physiotherapy[37] whilst attending the program. With increased exercise capacity following such a program, she was hopeful the plaintiff would be able to continue with independent exercise and reduce her need for hands-on physiotherapy. She describes the plaintiff as having a chronic condition, prone to exacerbations and may require individual physiotherapy intermittently to manage flare-ups. She notes that if the pain management program was not to proceed, then ongoing hands-on exercise and group physiotherapy classes would be required.[38]
[37]PCB 76
[38]PCB 76
44The opinions as discussed from treating practitioners tend to a conclusion that the forces in the incident were sufficient to cause a whiplash-type injury to the plaintiff’s neck, with a neuropathic-type pain response developing thereafter possibly amplified by the plaintiff’s underlying psychological reaction.
45Dr James Rowe, specialist occupational physician, examined the plaintiff at the request of her solicitors on 8 July 2020. In a report of that date,[39] Dr Rowe states that the diagnosis is “most likely a cervical disc derangement at the C5/6 level, causing some radiculopathy in the right arm”. Dr Rowe noted some weakness in the arms and some numbness and tingling into the plaintiff’s right hand. Clearly, his opinion is supportive of the plaintiff’s primary claim of suffering physical injury to her neck. However, his report is at the extreme end of opinions in this application insofar as he has diagnosed cervical disc derangement and, as such, I do not place much weight on his opinion. His opinion is, however, consistent with the argument that the plaintiff has an ongoing physical injury to her neck.
[39]PCB 125
46The plaintiff was examined at the request of the defendant by Dr Timothy Wood, sports and exercise medicine physician. In a report dated 27 May 2020,[40] he obtained a comprehensive history of the accident circumstances and the plaintiff’s pre-accident health, amongst other matters. He took a history that the plaintiff was then still suffering neck pain “… around 6/10 and at worst 8/9/10” and that she gets “occipital headaches which radiate to the frontal and temporal regions”.[41]
[40]Defendant’s Court Book (“DCB”) 125
[41]DCB 127
47His clinical examination demonstrated neck movements within normal limits with mild limitation of rotation to the right side. There was discomfort in the upper more than lower cervical spine with flexion and extension. There was tenderness from the sub-occipital region on both sides to the cervicothoracic junction and across into both trapezii. Neurological assessment of both arms was within normal limits.[42]
[42]DCB 128
48As mentioned earlier, Dr Wood’s prognosis for the plaintiff was “guarded as it is over five years since her accident and she still reports ongoing significant neck more than pelvic pain”. In respect to diagnosis, he notes that the plaintiff became aware of neck and symphysis pubis pain on the days following the incident and that they arose as a result of the half hour that she was chased by the driver of the other car.[43] He summarises by saying that:
“… although Ms Maangi had a pre-existing history of neck and symphysis pubis discomfort both appeared to have fully recovered by the time of the accident in March 2015. This would appear to be supported by her GP records with no entry for either condition from August 2013 … .”[44]
[43]DCB 129
[44]DCB 130
49Dr Wood goes on to comment that the plaintiff’s –
“… symptoms of pain in her neck and pelvis are real but not related to any ongoing structural damage. Neural adaptations can occur to produce this situation. … .”[45]
[45]DCB 132
50Therefore, Dr Wood, in summary, discounts the plaintiff’s past history of neck symptoms and accepts that the symptoms came on after the road rage incident. Unhelpfully, under the specific question of diagnosis,[46] he does not give a clear diagnosis. However, his comment regarding neural adaptations must, on a plain reading, mean that the plaintiff’s ongoing pain is related to a nerve or the nervous system and, as such, is a physical condition, consistent with the opinions from the treating practitioners.
[46]DCB 129
51Dr Wood concludes by noting the potential “holistic biopsychosocial treatment approaches”, which I interpret as a complicated way of expressing the option of pain management, but does not suggest a cure or that the plaintiff will not have ongoing symptoms.
The Clayton Thomas conundrum
52Dealing with the diagnosis of physical injury, the only other medico-legal witness relied on by the parties was Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. He has provided reports dated 2 October 2018[47] and 7 May 2020.[48]
[47]PCB 99
[48]PCB 120
53In the first of his reports, Dr Thomas states:
“I accept that the road rage incident was emotionally distressing. I accept that emotional distress predisposes to pain. … .”[49]
[49]PCB 102
54Dr Thomas further states that:
“The pain that she has is not mechanical in origin. The pain is not nociceptive … .
I do not think that the mechanism of her pain is related to any jarring or the like that occurred. The pain processing is a balance between descending inhibition and ascending noxious input. She had significant pre-existing pain. The descending system is very controlled by her emotional state and therefore when this was not working the ascending system overwhelmed her pain processing. This caused worsening sensitisation. This has remained.”[50]
[50]PCB 103
55Ultimately, Dr Thomas provided a diagnosis of:
“… diffusive widespread pain and therefore a diffusive widespread pain syndrome with significant central sensitisation.”[51]
[51]PCB 103
56In his second report, Dr Thomas repeats his opinion that the plaintiff has a “chronic pain syndrome involving her cervical spine”.[52] He states that “I would accept that this is very much a nociplastic pain problem with central sensitisation”.[53]
[52]PCB 122
[53]PCB 122
57Dr Thomas further states that he had –
“… gone through my previous assessment of the psychological aspects of why this has occurred and there is nothing in that previous assessment that I would differ on this occasion.”[54]
[54]PCB 122
58Dr Thomas states that he accepts that the plaintiff’s conditions stem from the incident of 25 March 2015. With respect to ongoing treatment, he did recommend a pain management program, but otherwise recommended domestic support to assist the plaintiff with tasks such as washing the wet areas and vacuuming, and that the nature of her pain syndrome affects her ability to function vocationally, and that was likely to be an ongoing issue for her.[55]
[55]PCB 122
59Dr Thomas’ ultimate opinion is that the plaintiff’s condition impacts on her domestic and vocational functioning, and that there is a need for ongoing treatment. The conundrum posed by his report is whether or not he is diagnosing an ongoing physical condition or a psychologically driven condition, in circumstances where he opines that the emotional distress of the incident predisposed the plaintiff to pain,[56] and that the mechanism of the pain was not, in his opinion, related to any jarring or the like that occurred.
[56]PCB 102
60This conundrum is highlighted by the final submissions made by counsel. Mr McNab and Dr Newman, on behalf of the plaintiff, submitted that Dr Thomas was describing an ongoing physical (organic) injury,[57] notwithstanding what was conceded to be an “unusual aspect to his position”, in that “he says that the psychological injury gives rise to the physical injury”.[58]
[57]T88, L16
[58]T88, L17-19
61On the other hand, Mr Rattray QC and Ms Clark, on behalf of the defendant, submit that Dr Thomas is diagnosing a psychological condition/pain syndrome.[59] This is a critical submission to the resolution of this application. The defendant, through its counsel, accepts that the incident was “such as might have caused the psychological reaction”.[60] However, the defendant does not accept there was any collision or force on the plaintiff’s vehicle so as to cause the physical injuries of which she complains.[61] The submission on behalf of the defendant is that Dr Thomas correctly identified that the frightening road-rage incident could have caused a psychological reaction in the plaintiff, and that is really what he is talking about in his report. This becomes relevant, because the defendant’s ultimate submission is that the plaintiff’s condition is best understood on the basis of a psychological condition that does not meet the test of “severe”.
[59]T69, L24-27
[60]T70, L22-23
[61]T70, L24-26
62There seems to be no doubt that Dr Thomas considers the trigger for the plaintiff’s current symptoms to have been a psychological reaction. However, doing the best I can with the limitation of only the written word to try and understand his opinion, I conclude that his diagnosis of a “chronic pain syndrome involving her cervical spine” in the context of his further opinion that he “would accept that this is very much a nociplastic problem with central sensitisation”,[62] is in fact a physically-based condition.
[62]PCB 122
63As such, I prefer the interpretation of his report as submitted on behalf of the plaintiff as containing a diagnosis of a physical condition. That opinion fits with the other medical opinions already discussed, albeit he has a different mechanism of injury. In other words, my interpretation of Dr Thomas’ reports is that he is diagnosing the plaintiff, now, with an ongoing physical condition and that fits with the other medical opinions, but in circumstances whereby he does describe what I consider to be an unusual, or at least unfamiliar to me, trigger for the central sensitisation, I place greater weight on the medical reports I have already discussed than I do on Dr Thomas’ opinion.
The consequences of the physical injury
64Having concluded that the plaintiff has suffered an ongoing physical injury which, from an analysis of the medical reports I conclude to be neck pain triggered by a whiplash-type injury as a consequence of the incident with subsequent organically-based central sensitisation involving the neck, I make the following findings in respect to consequences from such injury, bearing in mind that I found the plaintiff to be a credible witness. I accept her evidence in her affidavits and in the witness box as to the ongoing consequences. In particular, I accept her evidence that the neck injury has reduced her work capacity.[63] Before the incident, the plaintiff worked twenty-nine hours a week, four days a week, sensibly taking a day off for work/life balance and to assist in the care of her children, two of whom needed assistance with medical conditions. I accept her evidence that she has continued to work, but that her neck pain now limits her to approximately thirteen hours a week. I accept her evidence that she is restricted in a range of day-to-day activities such as driving, caring for her children, undertaking domestic tasks, driving and impacting upon her personal and social relationships.[64]
[63]PCB 7, paragraph [28]
[64]Plaintiff’s affidavit, PCB 7-9; Plaintiff’s second affidavit, PCB 13-15
65In addition to the plaintiff’s evidence, I also have the affidavit evidence of the plaintiff’s mother, Gillian Abbott,[65] and the plaintiff’s ex-husband, Duke Maangi.[66] Those affidavits corroborate the restrictions that the plaintiff has described.
[65]PCB 17
[66]PCB 24
66The plaintiff is still a young woman at thirty-five years of age. She requires ongoing conservative treatment and painkillers. There is no suggestion of a cure for her pain and restrictions. She will be forced to endure the pain, restrictions and consequences for many years, given her young age. When all of the evidence is analysed, I conclude that the interference with the plaintiff’s work (the pecuniary disadvantage), in combination with her pain, inability to fully care for her children, inability to engage in pleasurable social, recreational and domestic activities, are such so as to produce a “very considerable” consequence for her and meet the “serious injury” test in respect to physical injury.
The psychiatric injury of the Plaintiff
67Dr David Weissman, consultant psychiatrist, has seen the plaintiff on two occasions and has provided reports dated 14 September 2018[67] and 12 May 2012.[68] In his reports, he obtains a consistent history, examination finding and opinion and so it is convenient to briefly refer only to his second report. In that report, he stated that the plaintiff “continues to experience and suffer from mild, chronic post-traumatic stress and anxiety symptoms and traumatisation features directly due to the circumstances of the subject accident”. He further states that the plaintiff is now suffering from a “mild chronic PTSD” and a “mild to moderate mixed reactive depressive and anxiety syndrome with more anxiety than depression as a consequence of, or secondary to, her accident-related pain, injuries, disabilities, limitations and restrictions”.[69]
[67]PCB 81
[68]PCB 107
[69]PCB 117
68Dr Weissman further went on to state that “after careful consideration, I am still of the opinion that there is probably no actual psychiatric incapacity for work in this particular case”.[70] He further offered a prognosis of “a little uncertain and guarded overall”.[71]
[70]PCB 118
[71]PCB 119
69The opinions expressed by Dr Weissman would not, of themselves, demonstrate that the plaintiff has suffered a “severe” psychiatric condition.
70The only other psychiatric report is the report obtained by the defendant from Associate Professor Doherty. In a report dated 26 June 2020,[72] Associate Professor Doherty stated that he did not consider there was a clear-cut psychiatric diagnosis.[73]
[72]DCB 4
[73]DCB 14
71Further, in respect to diagnosis, Associate Professor Doherty states:
“I have not diagnosed a pain related psychiatric condition, and there is no psychiatric condition that limits the plaintiff’s capacity to work.
There is not much evidence of a significant interference in domestic or leisure activities due to the psychological reaction to the transport accident. … .”[74]
[74]DCB 16
72Associate Professor Doherty’s report is a little more optimistic than the opinions expressed by Dr Weissman, but ultimately their opinions are not dissimilar and Associate Professor Doherty’s report also would not support a finding that the plaintiff has suffered a “severe” psychiatric/psychological reaction to the incident.
73Therefore, I conclude that the plaintiff may have developed a psychological condition following the incident, but that it does not meet the test of “severe”.
74Finally, the opinions of Dr Weissman and Associate Professor Doherty are illuminating and useful in the task of interpreting the opinion of Dr Thomas. Neither Dr Weissman nor Associate Professor Doherty consider the plaintiff to have a psychiatrically-based Pain Syndrome, bearing in mind that as psychiatrists they are experts qualified in the diagnosis. It is not a major point but by the same token it is relevant in the interpretation of the opinion of Dr Thomas that the psychiatrists to do not consider the ongoing pain symptoms to relate to a psychiatrically-based condition.
Conclusions
75I am satisfied that the plaintiff has suffered a physically-based injury to her neck with the development of an organically/physically-based Chronic Pain Syndrome in the nature of a neuropathic pain response. For the reasons set out, I am satisfied that the physical injury is “serious” and I grant leave to the plaintiff to commence a common law proceeding in respect to the incident of 25 March 2015.
76I further conclude that the plaintiff has not satisfied the test of “severe” in respect to the claimed psychiatric condition.
77I will hear the parties as to the form of orders.
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