Makri v TAC
[2021] VCC 1830
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03756
| EKATERINI MAKRI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 & 24 May 2021 | |
DATE OF JUDGMENT: | 19 November 2021 | |
CASE MAY BE CITED AS: | Makri v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1830 | |
REASONS FOR JUDGMENT
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Subject:Transport accident
Catchwords: Serious injury; Spinal injury; Non-organic injuries; Extent of
consequences
Legislation Cited: Transport Accident Act 1986 s 93
Cases Cited:Richards & Anor v Wylie [2002] VSCA 50
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W.R. Middleton QC with Ms A. Ryan | Zaparas Law |
| For the Defendant | Mr P. Rattray QC with Mr S. Pinkstone | TAC Legal |
HIS HONOUR:
Introduction
1Ekaterini Makri was involved in a multi-vehicle collision on the Western Ring Road, near the Keilor exit ramp, on 11 April 2017. A vehicle had become stationary due to a mechanical fault with the vehicle travelling in front of Ms Makri’s vehicle stopping behind it. Ms Makri then collided with the rear of the stationary vehicle in what she described as an insignificant impact. Very shortly afterwards a semitrailer drove into the rear of Ms Makri’s vehicle, propelling it into the car in front. She described that impact as significant and her car was written off due to the damage caused.
2Ms Makri was taken by ambulance to the Royal Melbourne Hospital and remained overnight. Various investigations were performed and she was discharged with painkillers. Two days later she attended her normal general practitioner complaining of neck and back pain, and pain between the shoulder blades. She was also experiencing symptoms in her left knee from which she shortly recovered. She lodged a claim with the Transport Accident Commission which was accepted. In June 2017 she travelled overseas on a pre-planned trip to attend to matters concerning her late father’s estate.
3On her return to Australia she was referred by her general practitioner to a mental health nurse and in early 2018 she began attending a chiropractor. She was then referred to a psychologist, Mr Prodromidis, and later to a musculoskeletal physiotherapist, Mr Lincoln.
4She was complaining of fluctuating neck and back pain and experiencing panic attacks, which required hospital attendance on a number of occasions.
5She experienced restrictions with heavy lifting and similar activities, and had difficulty sleeping, experiencing nightmares and flashbacks. Her domestic situation required her to care for an elderly mother. She has two adult daughters residing with her.
6In the present application she seeks leave pursuant to s 93 of the Transport Accident Act 1986 (“the Act”) to claim damages for her injuries on the basis that she has suffered a serious injury within the meaning of s 93(17) of the Act. She relies upon paragraphs (a) and (c) of the serious injury definition.
7The defendant opposes a grant of leave on the basis that the consequences suffered by the plaintiff, whether assessed in accordance with paragraph (a) or paragraph (c) of the serious injury definition, do not reach the threshold required for leave to be granted.
8Ms Makri was the only witness required for cross-examination. Mr Middleton QC, who appeared with Ms Ryan on her behalf, additionally tendered a short video recording showing the aftermath of the accident scene. This had apparently been recorded by another person at the time and was tendered into evidence without objection.[1] The remaining evidence relied upon by each party was tendered in documentary form, including some surveillance material which was shown to Ms Makri during cross-examination.
[1]Exhibit A
The lay evidence
9Ms Makri swore two affidavits in support of her application, on 15 January 2020 and 23 April 2021.[2] Further affidavits in support were tendered from one of her daughters, Margaretta Papadopoulos, sworn on 17 May 2021[3] and her local priest, Father Alexandros Korlos, which was affirmed on 17 May 2021.[4]
[2]Exhibit B, pp 6-18
[3]Exhibit B pp 20-22
[4]Exhibit B pp 23-26
10Ms Makri’s first affidavit describes her living with her two adult daughters and 96 year old mother, who she had cared for at home since 2012. She had been born in Greece and came to Australia at the age of 20 in 1983. She had worked in takeaway food businesses and cafes with her ex-husband and last worked in paid employment in 2012.
11Her first affidavit deposed to receiving psychological treatment from 1990 to 2002 following domestic incidents. She had suffered panic attacks and had family therapy with her children after separating from her husband in 2002. Her affidavit deposes to this therapy ceasing in about 2005. She had also suffered from back and neck pain on occasions and referred to suffering from migraines and dizziness in the past, having an MRI scan of the brain in December 2013, some four years prior to the transport accident.
12Ms Makri’s first affidavit described the transport accident in some detail, and referred to being taken to the Royal Melbourne Hospital where she was kept overnight. She then described the treatment received from Dr Petropoulos and a number of other clinicians which included chiropractic, physiotherapy and psychological treatment. She described experiencing neck and upper back pain which was referred to as constant and fluctuating, radiating from her neck up into her skull and down into her left shoulder. She additionally suffered from panic attacks which had required her to attend hospital on a number of occasions.[5] Her first affidavit also described feelings of depression, sleep disturbance, nightmares and flashbacks.
[5]Exhibit B, pp 9-10 [19] to [20]
13The first affidavit went on to describe the impact that these ongoing symptoms had on her ability to care for her elderly mother and to engage in her pre-accident social and recreational activities. She was also pessimistic about any prospect of returning to employment in the future.
14Her second affidavit, sworn shortly prior to the hearing, described in some detail the treatment she was then receiving. She deposed in that affidavit to suffering constant neck pain, extending into the shoulder region and limited movement of her neck. She also experienced headaches and dizziness, had difficulty sleeping and found her symptoms unpredictable:
“A day never goes by without pain but the severity varies.”[6]
[6]Exhibit B, p 15 [3]
15The more recent affidavit described in considerable detail her duties caring for her elderly mother, noting that she received some assistance from carers for about 15 hours per week following the transport accident.
16Ms Makri described an intention to return to some form of employment, noting that she had worked in cafes and similar businesses following her divorce in 2002, but ultimately ceased this work to look after her mother and her children, who were then young.
17Her more recent affidavit also described performing voluntary work including work for the local church, which had lessened following the transport accident. At the time of her most recent affidavit, she described the impact of her injuries as follows:
“As a result of my injuries and restrictions upon my life, I feel down. I suffer from chronic neck and back pain and this also gets me down. I have some panic attacks. I did have them with the breakup of my marriage which was difficult but they improved when I left my marriage. I continue to have some panic attacks since my motor car accident, although they have lessened. I feel depressed.”[7]
[7]Exhibit B, p 17[10]
18When Ms Makri was cross-examined I noted the following matters as relevant to my determination:
· Ms Makri agreed she had received psychological treatment previously from about 1990 to 2002. She agreed she had suffered panic attacks which affected her a lot.[8]
[8]Transcript (“T”) 3, Line (“L”) 12-17
· She agreed she had experienced some back pain during the same period, but did not recall neck pain.[9]
[9]T 4, L 5-29
· She agreed that she had had a brain scan and an MRI of her neck in 2013, which was for “the back pain, the neck and the dizziness.”[10]
[10]T 5, L 8-29
· Ms Makri agreed she had suffered for many years with back pain, kidney stones and irritable bowel syndrome.[11]
[11]T 7, L 28 to T 8, L 3
· She agreed that following the transport accident she had complained to Dr Petropoulos about her left knee, but also maintained she had complained about headaches, her neck and her back.[12]
[12]T 9, L 1-17
· Ms Makri agreed that she had seen a psychologist in around October 2017. She had also purchased a machine known as a bioresonance device, which she believed relaxed her.[13]
[13]T 10, L 21 to T 12, L 11
· Ms Makri stated that she had travelled to Greece in June 2017 and again in 2019. She was unsure if she had gone in 2018. She agreed she had travelled to Fraser Island and also to New Zealand. She explained she had been a member of a travel club and had to cancel her membership:
“I had to get my money out. They don’t give you money, you have to use your points, otherwise you lose your money.”[14]
[14]T 14, L 22 to T 15, L 2
· At the time of the hearing, she was no longer seeing a chiropractor but continued to see a psychologist, Mr Prodromidis. She was still having physiotherapy one to three times per month.[15]
[15]T 15, L 24 to T 16, L 5
· She agreed that her panic attacks had lessened:
“Comparing to before, I feel a little bit better, not as bad as before … I would get a panic attack maybe two or three times per week. However, if I’m driving, I might get them more often.”[16]
· Ms Makri described the panic attacks as lasting for maybe 40 minutes:
“But they cripple you for the rest of the day.”[17]
· She stated she experienced flashbacks approximately twice per month:
“They have improved a little bit, yes.”[18]
· She had commenced antidepressant medication over the last four months. She was otherwise taking non-prescription medication when she needed it, and had also recently started taking Endep.[19]
· She described constant pain in her neck and limited movement “when it flares up”:
“After I’ll do an activity and it flares up, then I start getting all the symptoms like I can’t move my neck, I can’t put my neck back, I can’t put my neck forward, I get the dizziness, I get – so I get those symptoms when I’ve done something that has aggravated my neck.”[20]
· She did not trust herself to get back to work with her condition.[21]
[16]T 18, L 17-22
[17]T 19, L 9-11
[18]T 19, L 12-15
[19]T 19, L 30 to T 20, L 30
[20]T 22, L 15-30
[21]T 24, L 28 to T 25, L 20
19During cross-examination Ms Makri was shown surveillance video taken on 17 November 2020 and 19 November 2020. She agreed that she was the person featured in the surveillance video. It showed her in the small front yard area of her home using a garden hose to water, and lifting a chair with her right hand. She remained seated talking to her brother in that area for approximately 20 minutes. The video also showed her bending to approximately 90 degrees and apparently picking something from the ground. The surveillance video was tendered in evidence.[22]
[22]Exhibit 1
20When further cross-examined Ms Makri agreed that she could drive her car for up to an hour and her walking distance was limited to one to two kilometres before she would experience discomfort between her shoulder blades. She agreed that she did some housework and enjoyed cooking.[23]
[23]T 21, L 1-22
21In re-examination Mr Middleton QC directed Ms Makri to the sequence of various investigations commencing with a CT brain scan on 4 April 2013 and concluding with a CT scan of her cervical spine in September 2020. Details of these various investigations were contained in medical reports which were later tendered during the hearing.
22The two supporting affidavits from Margareta Papadopoulos and Father Alexandros Korlos were tendered into evidence. Neither deponent was required for cross-examination.
The plaintiff’s medical evidence
23Mr Middleton QC, on behalf of the plaintiff, tendered into evidence reports from the plaintiff’s general practitioner, Dr Diana Petropoulos; her psychologist, Mr Andy Prodromidis; a physiotherapist, Mr Rodney Lincoln, and a chiropractor, Dr Sam Liveriadis.
24There were also medico legal reports provided from Dr Nicholas Ingram, psychiatrist, Mr Tony Menz, orthopaedic surgeon, Dr David Freilich, neurologist, Mr Ash Chehata, orthopaedic surgeon, Professor Richard Bittar, neurosurgeon, and Dr Symon McCallum, pain physician and specialist anaesthetist.
25Dr Prodromidis had first seen Ms Makri on 13 April 2017, two days following the transport accident. She noted Ms Makri’s presenting symptoms as follows:
“… she attended in severe distress with back, shoulder and neck pain as well as generalised body weakness. Katerina was crying most of the consult due to the shock reaction related to the accident. She was seeing the same scene over and over again multiple times during the day.
Ekaterini developed Post-traumatic stress disorder with severe panic attacks and required referral to psychologist Andy Prodromidis who continues to provide psychological support.”[24]
[24]Report of Dr Petropoulos dated 8/03/2019 – Exhibit B, p 33
26Dr Petropoulos provided a report to Ms Makri’s solicitors dated 2 February 2021. In that report she noted:
“Since my last report Ekaterini has attended my rooms for ongoing headaches, dizziness and neck pain that has been so severe that she needed to stop and pull over her car; otherwise, she has been avoiding driving. The dizzy spells can cause severe panic attacks and flashbacks from the accident. She is depressed and anxious most of the time.
…
Ekaterini has ongoing neck pain – due to Cervical spine degenerative disc disease, Left should pain with L arm weakness, chronic headaches and severe dizziness, PTSD with Depression and Panic attacks.
The accident on 11 April 2017 was the cause of current cervical injury as Ekaterini never suffered from neck pain or headaches. It caused the PTSD with depression and Panic attacks.”[25]
[25]Exhibit B, p 35
27Dr Petropoulos had referred Ms Makri to a neurologist in relation to the ongoing dizziness and neck pain. As to prognosis she stated:
“Ekaterini’s injury has stabilised but she still has not recovered complete to live a normal life, there are many reasons, her age is one of them, Depression is another.
It is difficult to provide her prognosis that depends on her receiving the necessary medical treatment, psychological support, physiotherapy and self-management.”[26]
[26]Exhibit B, p 35
28The psychologist, Mr Prodromidis, initially saw Ms Makri on 23 March 2018 and continued to see her for treatment on numerous occasions up until at least 13 August 2020, as recorded in his most recent report dated 30 November 2020.[27]
[27]Exhibit B, pp 45-48
29In that report he described her condition as follows:
“Ms Makri continues to experience a constellation of symptoms consistent with a diagnoses of post-traumatic stress disorder and adjustment disorder with mixed depression and anxiety. As a follow up measure to previous evaluations, Ms Makri completed the Depression, Anxiety and Stress Scale (DASS21) on the 10/05/2019 (a self report psychometric instrument which provides an indication of the severity of her condition) which indicates an extremely severe rating of anxiety and stress and moderate rating of depression, which is commensurate with previous measures undertaken on the 08/05/2018 and my past and recent clinical observations.
It remains my opinion that Ms Makri’s psychiatric diagnosis/disorder has been predominantly caused by the transport accident she was involved in on the 11/04/2017. Although Ms Makri has a past history of anxiety related to domestic violence and marital problems, she has been well for over twelve years before the onset of her current psychiatric problems. It is clear that she is predisposed to anxiety but it is my opinion that the transport accident has been the dominant cause of her current psychiatric condition. … Ms Makri’s symptoms and psychiatric condition is consistent with the injury she sustained from the transport accident.
…
Ms Makri’s condition is stable, unlikely to improve with further treatment and I therefore assess her prognosis as poor. … Ms Makri’s condition is complicated by her ongoing physical pain which is a trigger for her psychological symptoms and would only suggest that further funding is provided to enable her ongoing medical and psychological treatment in order to prevent any deterioration in her condition.”[28]
[28]Exhibit B, pp 47-48
30The physiotherapist, Mr Lincoln, first saw Ms Makri on 27 November 2018. She was complaining of problems with her left cervical spine and scapula. Mr Lincoln commented that she was suffering left cervical spine facet joint impingement and nerve root irritation. He noted her symptoms had tended to fluctuate from almost pain free to quite debilitating, usually activity dependent.[29]
[29]Exhibit B, p 49
31In his more recent report dated 3 August 2019 Mr Lincoln considered the symptoms had become chronic and noted that she was on a “when necessary active physiotherapy program, with encouragement to be able to cope with self‑management protocols.”[30]
[30]Exhibit B, pp 51-52
32The chiropractor, Dr Sam Liveriadis, first saw Ms Makri on 16 February 2018 and continued to treat her up until 30 September 2020. His three reports dated 14 July 2018, 26 April 2019 and 12 May 2021 were tendered into evidence.[31]
[31]Exhibit B, pp 53-63
33Mr Liveriadis essentially diagnosed a whiplash-type injury affecting the cervical/thoracic shoulder region and lumbar spine. He commented that her symptoms:
“… have improved from the initial acute stage of the injury, but they have persisted to a constant subacute level that doesn’t improve any further.”[32]
[32]Exhibit B, p 61
34The medico legal opinions relied upon by the plaintiff are both extensive and comprehensive. From an organic point of view Mr Menz, orthopaedic surgeon, who saw Ms Makri on one occasion in July 2019 diagnosed her as suffering from an aggravation of pre-existing cervical spondylosis and soft tissue injury to her cervical thoracic muscles. He had noted some degenerative changes on plain x‑rays, but no evidence of nerve root impingement and his neurological examination was normal. Mr Menz noted a history of Ms Makri experiencing left shoulder symptoms as a result of using a power drill and did not attribute this condition to the transport accident. He noted some impact in terms of her activities of daily living as a result of the symptoms impacting on her cervical spine and described this as adversely affecting Ms Makri “to a mild-to-moderate degree.”[33]
[33]Exhibit B, p 76
35Dr Freilich, neurologist, saw Ms Makri on one occasion on 15 October 2019. He described his neurological examination findings as normal, and in particular noted:
“… there were no signs of damage to the cervical cord or nerve roots.”[34]
[34]Exhibit B, p 81
36His opinion as to her injury was as follows:
“The history indicates that she had a neck injury. She has ongoing symptoms of neck pain, headache and limitation of movement of the left arm at the shoulder. She also has other symptoms which are more consistent with a psychological disturbance and she is experiencing frequent panic attacks and anxiety for which she sees a psychologist.
…
My diagnosis is that of a neck injury without neurological complications.”[35]
[35]Exhibit B, p 81
37Dr Ash Chehata, orthopaedic surgeon, saw Ms Makri on 9 December 2020 for the purposes of conducting a medico legal examination. He noted some history of intermittent neck and back symptoms, which had completely resolved:
“It was only after the severe motor vehicle accidents that these were severely aggravated.”[36]
[36]Exhibit B, p 84
38Dr Chehata diagnosed Ms Makri as having suffered an aggravation of cervical spondylosis, thoracic spondylosis and a myofascial style soft tissue injury coupled with bursitis to the left shoulder. He described the effects of the transport accident as having caused:
“… a significant whiplash style injury and myofascial/soft tissue injury to the cervical spine, thoracic spine and left shoulder.”[37]
[37]Exhibit B, p 85
39Dr Chehata also commented more generally on the consequences of Ms Makri’s injury:
“The injury has affected her capacity to interact and she has become socially isolated. Her anxiety and depression, as well as panic attacks have been compounded and she no long performs her normal activities of daily living in a standard fashion. She has ongoing issues with insomnia and struggles to perform her normal household tasks.”[38]
[38]Exhibit B, p 86
40In addition to recommending supports such as physiotherapy, Dr Chehata noted Ms Makri was likely to require some psychological or psychiatric treatment in order to maintain her ongoing physical activity.
41Professor Richard Bittar, neurosurgeon, saw Ms Makri on 19 December 2020 and provided a report of the same date.[39] He noted little significance in the radiology, save for a small disc protrusion at C5/6 without any nerve root compression. His examination did reveal what he described as moderate restriction of cervical spine flexion and rotation, particularly to the right, and paravertebral tenderness and muscle spasm more prominent on the left hand side. He diagnosed Ms Makri as suffering from an aggravation of cervical spondylosis and cervicogenic headaches. He did recommend review by a pain specialist and consideration of diagnostic blocks or steroidal injection in the left C6 nerve sheath. He was the only consultant to make reference to possible surgery.
[39]Exhibit B, pp 88-93
42Professor Bittar essentially described Ms Makri as suffering from an aggravation of a pre-existing but minimally symptomatic cervical spine condition.[40]
[40]Exhibit B, p 92
43The most recent medico legal opinion relied upon was that from Dr Symon McCallum, pain physician and specialist anaesthetist, dated 15 February 2021.[41] He had interviewed Ms Makri via a Zoom link, which is not uncommon during the current pandemic. He noted some slight decrease in shoulder movements and also recorded pain on all movements of the cervical spine:
“She feels like there is an elastic band in the neck and she has got a decreased range of movement.”[42]
[41]Exhibit B, pp 94-99
[42]Exhibit B, p 97
44Dr McCallum believed Ms Makri had suffered a cervical whiplash which was causing a cervicogenic headache. He also noted:
“She is depressed and anxious. She has been diagnosed with PTSD. This seems to be on a background of PTSD from which she recovered and had no problems from after around 2005.
She has got a very poor level of function. She is extremely disabled by her pain and psychological state.”[43]
[43]Exhibit B, p 97
45Ms Makri was seen on two occasions by Dr Nicholas Ingram, psychiatrist. He first saw her on 2 August 2019 and prepared a report of the same date, which was tendered into evidence.[44] His diagnosis at that time was of a panic disorder and a post traumatic stress disorder. He recommended that she continue with antidepressants and continue to see a psychologist at that stage. On a more cautionary note he stated:
“I do not feel Ms Makri needs to see a psychiatrist at this stage, though if there were no improvement in the panic attacks over the next six months if she were treated with antidepressants I think this would be appropriate.”[45]
[44]Exhibit B, p 64-68
[45]Exhibit B, p 68
46Dr Ingram believed her prognosis was reasonably good at that stage, assuming that she had appropriate treatment.
47Dr Ingram saw Ms Makri again in December 2020. His report dated 4 December 2020 was also tendered in evidence.[46] On that occasion he noted:
“Ms Makri’s symptoms have not improved in the last year, though I would still not consider her condition stable as I think there may be some response to antidepressants.”[47]
[46]Exhibit B, p 69-73.
[47]Exhibit B, p 73
48He did believe it appropriate at that stage for her to see a psychiatrist. He essentially provided the same diagnosis in his second report, although he commented that she was also suffering from an adjustment disorder with depressed mood and anxiety as a secondary consequence of the accident and her chronic pain and panic symptoms, which had made her more fearful of going out.
The defendant’s medical material
49The defendant relied upon reports from Mr Gary Speck, neurosurgeon, Associate Professor Mark Taylor, psychiatrist, together with clinical notes from both the Tristar Medical Group and the Epping Medical Centre, which had been put to Ms Makri during cross-examination.
50Mr Speck examined Ms Makri on 17 February 2021 and prepared a very detailed report dated 22 February 2021.[48] He diagnosed Ms Makri as suffering from soft tissue injuries to the chest, neck, left knee and back as a result of the transport accident. He expressed the following opinion at that time:
“The physical injuries have resolved and her ongoing complaints of pain and restriction related to the neck and referred to the head, interscapular region and left shoulder are consistent with a chronic pain syndrome rather than ongoing physical injury.”[49]
[48]Exhibit 2, pp 4-25
[49]Exhibit 2, p 22
51Mr Speck did not believe Ms Makri required any active treatment, although he suggested that a multidisciplinary functional restoration/chronic pain program may be of benefit. He additionally commented that her chronic pain syndrome or somatic symptom disorder provides ongoing restrictions in terms of any return to work. He believed her lengthy absence from the workforce whilst caring for her elderly mother was also significant.[50]
[50]Exhibit 2, p 23
52Mr Speck provided a supplementary report dated 27 April 2021 after being provided with the surveillance video, which was tendered in evidence during the hearing. He commented that the activities he observed were consistent with his diagnosis of resolved soft tissue problems with Ms Makri undertaking most normal domestic activities. He believed the surveillance material confirmed that Ms Makri was suffering a minimal degree of restriction.[51]
[51]Exhibit 2, p 29
53The final report tendered on behalf of the defendant was from Associate Professor Mark Taylor, psychiatrist, who conducted an audio/visual examination of Ms Makri on 4 March 2021 and prepared a report addressed to the defendant’s solicitors on 17 March 2021.[52]
[52]Exhibit 2, pp 31-48
54Associate Professor Taylor noted a detailed history, including a history of panic attacks requiring hospital attendance. He noted that she had first had such problems in 1997 and had been referred to a psychiatrist at that time. His history noted that Ms Makri had not had any specialist mental health services between 2005 and 2018.[53] Associate Professor Taylor also noted that Ms Makri had been a long term carer for her elderly mother, up to her mother’s death in early 2020.
[53]Exhibit 2, p 38
55In terms of diagnosis Associate Professor Taylor believed Ms Makri satisfied the criteria for a generalised anxiety disorder, but did not meet the criteria to satisfy a diagnosis for a depressive illness or a post traumatic stress disorder. He did accept that a diagnosis of an adjustment disorder similar to a post traumatic stress disorder may have been evident during 2018 as diagnosed by the psychologist, Mr Prodromidis. He did express the opinion that Ms Makri was predisposed to the development of such a disorder due to her pre-existing panic disorder:
“… which she had before the accident as well as the underlying anxious personality traits.”[54]
[54]Exhibit 2, p 45
56He regarded her prognosis as reasonable:
“… given the healthy lifestyle and the psychiatric symptoms theoretically should not stop Ms Makri from working.”[55]
[55]Exhibit 2, p 45
57He also recommended continuing psychological therapy and continuation of her current medication.
Analysis
58There was general agreement between the parties that Ms Makri had suffered a soft tissue flexion extension injury of her cervical and thoracic spine in the transport accident in April 2017. Ultimately there was no reliance by the plaintiff on any consequences said to flow from the left shoulder injury. Additionally, the medical material, both from Ms Makri’s treating practitioners and all of the medico legal opinions, point to a conclusion that the initial organic injury has been significantly complicated by the development of non-organic consequences which, in my view, require assessment in accordance with paragraph (c) of the serious injury definition in s 93(17) of the Act.
59Longstanding authority in Richards & Anor v Wylie[56] provides guidance to the evaluation of a relatively minor organic injury which leads to consequences which are truly the product of some supervening mental or behavioural disturbance or disorder. Such consequences must satisfy the higher threshold of severity in order for leave to be granted.
[56][2000] VSCA 50
60In Ms Makri’s case I am satisfied that the ongoing symptoms of neck pain and cervicogenic headache described by her are, on balance, the product not of the original organic injury, but most probably due to some supervening non‑organic cause.
61Additionally, I am satisfied that she has suffered a recurrence of additional mental or behavioural disorders, including flashbacks, panic attacks and symptoms of anxiety which have been variously described as post traumatic stress disorder or adjustment disorder. It is not necessary for a precise psychiatric or psychological descriptor to be applied to these symptom complexes, but rather the accepted consequences be evaluated as mental or behavioural disturbances or disorders in order to make an assessment of whether they satisfy the statutory requirement, both for severity and long-term duration.
62Mr Rattray QC made reference to the surveillance material in his closing address to attack the plaintiff’s credit as to the severity of her ongoing symptoms, and also to caution against reliance upon the medical opinions from doctors who had not had the opportunity to view the surveillance material. In my view such criticism is not warranted. I accept that the surveillance material did not display Ms Makri demonstrating any particular restriction of movement or obvious display of pain or other discomfort. Conversely the activities observed did not in my view constitute any particularly strenuous activity or movement, which would contradict the plaintiff’s evidence given at the hearing or in her affidavits.
63I accept that the plaintiff in general did not overly exaggerate her symptom complex during her evidence, and I regarded her as a truthful witness whose evidence could generally be relied upon. I accept that she was mistaken as to the onset of her left shoulder symptoms, and I accept that these did not commence until 2018. I note Mr Middleton QC placed no reliance upon this injury or its consequences in terms of the present application.
64The supporting affidavits from Ms Makri’s daughter, Margarita Papadopoulos, and her local priest, Father Korlos, provide independent evidence to support Ms Makri’s application. It is clear from the material in both affidavits that the voluntary work which Ms Makri had performed in her local church community in Yarravile has been dramatically curtailed following the transport accident. Ms Makri’s daughter makes reference to the care that her mother had provided for her grandmother during the last years of her life, but notes that she eventually needed to seek help from the local council in relation to the heavier activities involved in that care.[57]
[57]Exhibit B, p 21[8]
65Father Korlos’ affidavit exhibits a letter recognising Ms Makri’s contribution to the church community for nearly 20 years prior to the transport accident. It goes on to state:
“Ekaterini, due to her accident in 2017 is no longer able to participate in the church activities and carry on her voluntary role as before. She is however, still attending church for her spiritual needs.”[58]
[58]Exhibit B, p 26
66The transport accident occurred when Ms Makri was approaching her 54th birthday. At that time she had been caring for her invalid mother for some five years. She clearly had a history of psychological or psychiatric difficulties as a result of a difficult marriage involving domestic violence. She had received psychological support from about 1990 until approximately 2005. I accept that her past history of psychological problems involved panic attacks of considerable severity.
67I accept the opinion of the treating psychologist, Mr Prodromidis, to the extent that Ms Makri continues to experience “a constellation of symptoms consistent with a diagnosis of post traumatic stress disorder and adjustment disorder with mixed anxiety and depression.” I further accept the severity of this constellation of symptoms is fairly described by him in his report as indicative of “an extremely severe rating of anxiety and stress and a moderate rating of depression.”[59]
[59]Exhibit B, p 47
68The opinion expressed by Mr Prodromidis is essentially consistent with the medico legal opinion expressed by Dr Ingram, noting the presence of both post traumatic stress disorder and a panic disorder as a direct consequence of the accident. I further accept from Dr Ingram’s opinion that her PTSD and panic symptoms have become less prominent, leaving more evidence of depression related to the secondary adjustment disorder which was also diagnosed by him.[60]
[60]Exhibit B, p 72
69Essentially the opinions expressed by Mr Prodromidis and Dr Ingram are consistent with the opinion expressed by Associate Professor Taylor in his report dated 17 March 2021. Associate Professor Taylor also notes that Ms Makri was predisposed to the development of such a disorder:
“… due to her pre-existing panic disorder which she had before the accident as well as the underlying anxious personality traits.”[61]
[61]Exhibit 2, p 45
70I am satisfied that the mental or behavioural disturbance or disorder as variously diagnosed is likely to persist into the foreseeable future. In any event the persistence of symptoms for some four years following the transport accident would satisfy the statutory requirement that such consequences be regarded as “long-term”.
71A qualitative assessment of the consequences must involve an objective comparison of those consequences with a range of possible consequences in order to properly assess whether the plaintiff’s circumstances satisfy the statutory definition of consequences.
72Of some significance is the circumstances in which the transport accident occurred. Unusually there was evidence provided by the plaintiff of video footage recorded shortly after the accident had occurred. There can be no real dispute that this was a very frightening event for the plaintiff. Additionally her past history of emotional difficulties, including panic attacks, leads to a conclusion that she was to some extent predisposed to that type of emotional trauma. I accept her consequences have been fairly described by her treating psychologist.
73Notwithstanding the thorough and detailed cross-examination by Mr Rattray QC, I accept that Ms Makri had largely been symptom-free for a number of years pre‑dating the transport accident. There is no challenge to the fact that Ms Makri had been the primary carer for her invalid mother from approximately 2012. Although she continued in that role following the transport accident, I accept on the basis of the unchallenged evidence from her daughter, that she did require support from the local council with the heavier aspects of that care following the transport accident.
74I note the opinion of Associate Professor Taylor that:
“… the psychiatric symptoms theoretically should not stop Ms Makri from working.”[62]
[62]Exhibit 2, p 45
75I conclude that the unpredictable nature of the panic attacks, the perception of pain and restriction which I find is largely of a non-organic nature, together with the increased evidence of depression, must effectively preclude Ms Makri from any re‑entry into the workforce. Additionally, I should comment that her daily use of home treatments involving both a TENS machine and a bioresonance frequency device, are in my assessment suggestive of a behavioural disturbance which would be quite inconsistent with any return to employment.
76Further, Ms Makri had played a very active role in her local church community, and the loss of this activity must be of very considerable significance to her. I further accept that the impact on her recreational activities of swimming and social activities including participation in Greek dancing and even reading, has been impacted as a consequence of the transport accident.
77I do note the matters raised in cross-examination concerning Ms Makri travelling overseas to Greece in June 2017 and on at least one further occasion in 2019. She admitted that she had been a member of a travel club and had travelled to Fraser Island and also New Zealand. She also stated that she eventually had to cancel her membership. It was also clear from the cross-examination that she had travelled quite extensively prior to the transport accident.
78In making a qualitative assessment of the consequences for the purposes of paragraph (c) of the serious injury definition I am satisfied that the effective loss of any prospect of returning to meaningful employment in the foreseeable future, a significant reduction in her pre-accident cultural, social and recreational activities, the loss of her more meaningful role within her church community, together with her perception of pain and loss of function and the ongoing treatment, both self‑administered and given by her general practitioner and psychologist, can fairly be assessed as severe as required for leave to be granted in accordance with paragraph (c) of the statutory definition.
Conclusion
79I am satisfied that Ms Makri has made out her application for leave. I propose to grant her leave to claim damages at common law in respect of the injuries sustained in the transport accident occurring on 11 April 2017 on the basis that she has suffered a serious injury as defined by s 93(17)(c) of the Act.
80I will hear the parties in respect of the formal orders sought and on the question of costs.
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