Mason v TAC
[2013] VCC 1461
•23 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
DAMAGES & COMPENSATION LIST
Case No. CI-11-00148
| KATHLEEN MASON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 18-23 & 25 February 2013 | |
DATE OF JUDGMENT: | 23 October 2013 | |
CASE MAY BE CITED AS: | Mason v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1461 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Application pursuant to s93 of the Transport Accident Act 1986 seeking leave to bring proceedings for damages for severe long-term mental or severe long-term behavioural disturbance or disorder caused by 2006 transport accident – causation held not to be proven.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Mobilo v Balliotis & Others [1998] 3 VR 833; Petkovski v Galletti [1994] VR 346; AG Staff Pty Limited v Filipowicz [2012] VSCA 60; Jones v Dunkel (1959) 101 CLR 298;
Judgment: Plaintiff’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr E Makowski | Clark Toop & Taylor (now Slater & Gordon) |
| For the Defendant | Ms M Hartley with Ms L Glass | Wisewould Mahony |
HER HONOUR:
1 The plaintiff, Kathleen Mason, makes application pursuant to s93 of the Transport Accident Act 1986 (“the Act”) for leave to bring proceedings to recover damages. She alleges that she has suffered a “serious injury” within the meaning of paragraph (c) of the definition of serious injury in s93(17) of the Act.
2 In a transport accident which occurred on 7 October 2006, (“the 2006 transport accident”) the plaintiff’s mother suffered injuries which rendered her a quadriplegic and necessitated her being sustained by a life support system. Subsequently, pursuant to her wishes, the plaintiff’s mother was removed from such life support system and died on 13 October 2006. The plaintiff claims that, as a consequence of the 2006 transport accident and her mother’s injuries and death, she has suffered severe long-term mental or severe long-term behavioural disturbance or disorder by way of Post-Traumatic Stress Disorder and/or a chronic Major Depressive Disorder. It is claimed that the pain and suffering consequences of these conditions meet the definition of “serious injury” in paragraph (c) of s93(17).
Issues
3 The defendant does not dispute that the plaintiff presently suffers some psychological/psychiatric symptoms. However, the issues are:
(i) the nature and extent of the plaintiff’s psychological/psychiatric symptoms prior to the 2006 transport accident and death of the plaintiff’s mother;
(ii) the nature and extent of any mental injury and consequences which flow from the 2006 transport accident and death of the plaintiff’s mother;
(iii) the extent to which any psychological or psychiatric consequences flowing from the 2006 transport accident and death of the plaintiff’s mother contribute to the plaintiff’s current symptoms, particularly having regard to the fact that the plaintiff was involved in a transport accident herself on 2 January 2010 (“the 2010 transport accident”);
(iv) whether the consequences of any mental or behavioural disturbance or disorder caused by the 2006 transport accident and death of the plaintiff’s mother meet the test in paragraph (c) of “severe long-term mental or severe long-term behavioural disturbance or disorder”, particularly having regard to the limitation on the plaintiff’s activities prior to October 2006, resulting from her diagnosed conditions of Multiple Chemical Sensitivity Syndrome (“MCSS”) and Chronic Fatigue Syndrome (“CFS”).
The essence of the plaintiff’s claim of injury and consequences flowing from the 2006 transport accident and death of her mother
4 In an affidavit sworn on 15 December 2010 (“the plaintiff’s first affidavit”), the plaintiff states that on Saturday, 7 October 2006 she received a telephone call from her sister, who expressed concern that her mother had not arrived at a friend’s place, to which she was driving herself in order to have lunch. The plaintiff discovered that there had been an accident in the area where her mother would have been driving and that police were directing traffic. The plaintiff rang acquaintances at Maroondah Towing, who told her that her mother had been in a car accident and had been taken to the Alfred Hospital. The plaintiff states:
“I immediately went to see my mother in the Emergency Department at the Alfred Hospital. She was wearing a neck brace, and was barely recognisable. Her face was all puffy and swollen. She had broken her C1 and C2, and mum was dependent on a ventilator. She was pale and lifeless and to me, she just wasn’t my mum. She couldn’t talk; all she could do was blink and shed tears. I was in shock and distressed seeing her. When I saw her she seemed distressed and in pain, I know this because she’d cry.”[1]
[1]Plaintiff’s Court Book (“PCB”) 16, paragraph 27
5 In the plaintiff’s first affidavit, she described having to call friends and family to notify them of her mother’s accident. On 11 October 2006, her mother was transferred to the Austin Hospital’s Spinal Unit and doctors advised the family that, if she survived, she would be a complete quadriplegic. Her mother was still on a ventilator. The plaintiff, who had lived with her mother for almost her whole life, was aware that her mother had expressed in her Will, and also verbally, that, in these circumstances, she would wish the ventilator to be switched off. Her mother apparently also signalled this wish to medical staff using her eyes.[2] The plaintiff said she fought with her brother, John, and sister, Susan, because they did not want to switch off the machine. However, it was eventually switched off on 13 October 2006, and her mother died on that date.
[2]Affidavit sworn by the plaintiff on 18 February 2013 (“the plaintiff’s second affidavit”), PCB 21B
6 The plaintiff stated that she was told by a policeman, Senior Constable David Christie of Knox Traffic Management Unit, that her mother had been stationary in her car, ready to do a right hand turn, when another vehicle came up behind her and collided with her car on the left, causing her car to mount a kerb and to be propelled into a property on Scoresby Road, Boronia.[3] The plaintiff stated:
“When I saw the condition of mum’s car after the accident at Maroondah Towing and the photos of the accident scene by Senior Constable David Christie I was horrified and in shock. I had to deal with the police, the insurance company and the TAC with no help from my siblings and also the packing up of the house and mum’s belongings.”[4]
[3]PCB 15, paragraph 24
[4]PCB 17, paragraph 32
7 In the plaintiff’s first affidavit, she stated that, while working at a panel beating business, Super Finish, in 2001, she began to experience migraines, nausea and fatigue. These symptoms continued and, in 2005, she was diagnosed with MCSS and CFS by an allergy specialist, Dr Colin Little. Her symptoms had been provoked by exposure to solvents, and vehicle exhausts. Testing had shown her to be sensitive to a range of chemicals. In everyday life, low levels of exposure to such chemicals could trigger her symptoms.[5] She takes Panadeine Forte, Stemetil and Maxolon for these conditions and, because of them, has not worked since 2005. She has been receiving a disability pension since 2005.[6] However, she stated that, despite the MCSS and CFS, she had “coped with living with the limitations of these conditions and been able to function to a point”.[7]
[5]Report of Dr Little dated 26 February 2008, PCB 79
[6]Transcript (“T”) 49
[7]PCB 18, paragraph 34
8 In the plaintiff’s first affidavit, she claims that the consequences of the 2006 transport accident and her mother’s death are as follows:
· Her feelings of anxiety and depression have greatly increased.
· She has become extremely cautious when driving and is nervous and panics, especially when waiting to do a right hand turn. She avoids driving where possible.
· She avoids Scoresby Road, where her mother’s accident occurred, and is frightened when driving in that vicinity. She often has flashbacks when driving.
· She and her mother had lived together and her mother would drive her to medical appointments for her MCSS and CFS and generally look after her. The trauma of her mother’s accident caused her to move house because she was constantly reminded of her mother and the accident. The house was sold in December 2007 because her siblings did not want to keep it, and she thereby lost her home.
· She has flashbacks to and nightmares of her mother’s appearance in hospital and her wrecked car almost every day. She cannot stop the images of her mother after the accident coming into her head, especially at night.
· She has had trouble sleeping since her mother’s accident and takes Temazepam. Several times a night she wakes up extremely anxious, panicking and upset and often crying.
· She had been taking the anti-depressant, Zoloft, prior to her mother’s accident, but her general practitioner, Dr Wong, increased her dosage soon after the accident and she presently takes 200 milligrams. In April 2008 she seriously thought of taking her own life.
· She has become “unsocial” (sic) and avoids leaving the house. Her anxiety has become debilitating and she is frequently on edge, teary and feeling hopeless and lost. She spends most of her days watching television and reading.[8]
[8]PCB 20, paragraph 40-41
· She is badly affected when she sees something on television about an accident or catastrophe.
· After moving from her mother’s home after it was sold in December 2007, she stayed with friends. In mid-2008 she moved to Gerangamete to live with her best friend, Craig Bakes. One reason for moving to a rural area was “to get away from a lot of bad memories and reminders of how life had been”.[9]
· Due to her mother’s accident, there were many arguments with her siblings relating to issues of her mother’s life support, the lack of amount of time she spent with her mother at the hospital, and the funeral. She and her siblings are no longer close and are not good friends, as they once had been. She felt as though they had been “broken” by the accident and “are no longer a family without mum”. However, in the plaintiff’s second affidavit, the plaintiff stated that subsequently “those difficulties have gradually dissipated and we now enjoy good sibling relations”.[10]
[9]PCB 20, paragraph 42
[10]PCB 21C, paragraph 6
9 In the plaintiff’s second affidavit, she also states:
· Her self-esteem, confidence, memory, concentration and interest in life remain at very low levels.
· Her lifestyle has been dramatically affected. Her social, recreational and domestic activities remain decimated.
· Although she shares a house with Craig Bakes, and they previously had been in a relationship, there is no longer a physical relationship, and she has no interest in a physical relationship.
The state of the plaintiff’s health prior to the 2006 transport accident and her mother’s death
10 The plaintiff is 46 years old, having been born on 26 December 1966. She left school part-way through Year 12 in 1983 and, during 1984, worked as a shop assistant with Target. From 1985 to 1992 she worked doing office work and administration for Sheen Panel Service, a panel beating business. From 1992 to 1995 she worked for Donnington Body Repair Centre, also doing office work and administration. In 1995 she began to suffer migraine headaches. In 1995 she went to work for RG Ladd Pty Ltd, electrical engineers, doing office work and administration. The migraine headaches persisted and, towards the end of 1996, she went off work for a couple of months on sickness benefits. It seems that she lived at her parents’ home from 1996 onwards, except for a year and a half, during 1997 and until the middle of 1998, when she was studying a Bachelor of Nursing Degree at Ballarat University. She gave up that course in order to look after her father who became terminally ill. He died on 22 December 1998. She continued to live with her mother at the family home right up until the 2006 transport accident and, after her mother’s death, remained living there until the home was sold in December 2007.
11 In 1999 the plaintiff completed two massage courses, each of two or three months duration, at Chisholm Institute. She then completed a 13 week aged care course at Moorabbin TAFE.
12 In 1999 the plaintiff returned to work at Sheen Panel Services until 2001. Then, in 2001 she moved to an associated panel beating business called Super Finish, where she remained until June 2002. As already stated, whilst at Super Finish, the plaintiff began to experience migraines, nausea and fatigue. She took some time off towards the end of 2001. In 2002 she ceased working at Super Finish and, for a couple of months, received Centrelink benefits, before moving to work for Maroondah Towing Service in 2003. She suffered ongoing problems with migraines, nausea and fatigue. As previously mentioned, she was ultimately diagnosed with MCSS and CFS by Dr Little in 2005 and she ceased working because of these conditions and has been in receipt of a disability pension ever since.
13 Since 2000, the plaintiff’s treating general practitioner has been Dr Wong of the Family Medical Centre in Boronia. Dr Wong’s records reveal that he referred the plaintiff to a gastroenterologist, Dr Wayne Friedman, in 2001 because of her headaches, nausea, fatigue and weight loss, and Dr Friedman considered that her ill-health may be related to toxic exposure to inhaled automotive paint fumes. In a letter to Dr Wong from Dr Friedman dated 15 October 2001, he stated that the plaintiff, “Seemed quite moody, tearful and depressed. She tells me she has had a previous history of post-traumatic stress disorder and I wonder whether she may benefit from an opinion from a psychologist.”[11]
[11]Defendant’s Court Book (“DCB”) 124
14 In a subsequent letter from Dr Friedman to Dr Wong dated 8 November 2001, he noted that the plaintiff, “Still suffers mild sleep disturbance, moderate lowering of her mood and chronic idiopathic fatigue”. He went on to reiterate that the plaintiff, “Has a history of previous post-traumatic stress disorder and Ros West may be able to help (her) with coping strategies for her digestive and somatic complaints.”[12]
[12]DCB 122
15 It would appear that Dr Friedman referred the plaintiff to a psychologist, Roslyn West, who reported back to Dr Friedman on 19 November 2001 stating, “I have now met Kathie once and have taken an emotional history. She has gone off with some homework for this week. She says she is quite used to keeping a diary.”[13]
[13]DCB 121
16 Under cross-examination, the plaintiff stated that she did not think that any doctor had ever diagnosed her with depression and nor had she been diagnosed with Post-Traumatic Stress Disorder prior to the 2006 transport accident.[14] Although she recollected seeing Dr Friedman, she said she had no recollection of giving a history of Post-Traumatic Stress Disorder to Dr Friedman[15] and no memory of seeing the psychologist, Roslyn West.[16]
[14]T 72
[15]T 77
[16]T 72 and 77
17 Dr Wong’s clinical records on 4 March 2004 make reference to him prescribing Zoloft to the plaintiff. His handwritten note states, “Feeling sad, teary, no energy for a few months. Has been depressed before and was on Zoloft for one year.” Dr Wong noted that he restarted Zoloft at a 50 milligram dose and was to review the plaintiff in two weeks.[17]
[17]DCB 64A
18 Under cross-examination, the plaintiff stated that she had been prescribed Zoloft prior to being diagnosed with MCSS and CFS because nobody could find out what was wrong with her and she was not coping. She stated, “I was down because of my illness and not being able to work, but not like now”.[18] She agreed that she had suffered several miscarriages requiring D&C treatment, the last of which was about seven years ago.[19] She denied that she had been depressed before she started to suffer from MCSS symptoms.[20] This would appear to be at odds with the history recorded by Dr Wong on 4 March 2004. It is also at odds with a certificate by Dr Little, the allergist who treated the plaintiff for MCSS and CFS. This certificate dated 20 May 2005, was provided in support of the plaintiff’s application for Centrelink benefits. It noted, amongst other things, that the plaintiff was on anti-depressants, Zoloft “before current illness”.[21]
[18]T 72
[19]T 54
[20]T 53-54, 68, 86
[21]DCB 94
19 On 18 March 2004, Dr Wong’s computerised note states, “Put on Zoloft two weeks ago. Back for review today. No side effect working slowly not as weepy as before. Tablet does not keep her awake. Warn her about reduced sexual libido.” He prescribed Zoloft in a dose of 50 milligrams daily.[22] In oral evidence Dr Wong stated that this was because of mild depression from her multiple allergies and chronic fatigue.[23] Dr Wong’s oral evidence was that he gave “only two scripts written for 60 days” and that, as the Zoloft had been sitting on his record for two years, he though he should update it so he “closed it off” on 14 March 2006.[24]
[22]DCB 54, PCB 83aa
[23]T 159. Note: this is erroneously stated to be 40 milligrams.
[24]T 179-180 and DCB 58
20 Dr Little wrote to Dr Wong on 21 April 2006. He stated that, based on history and extensive testing, the plaintiff had been found to be sensitive to airborne chemicals. She was continuing to experience symptoms, the major ones being nausea, abdominal pain, musculoskeletal pain, fatigue, headaches and postnasal drip. He stated, “I have suggested a trial of Zoloft at low dose to see if this will help relieve some of her symptoms”.[25]
[25]DCB 80
21 Dr Little’s clinical notes on 14 March 2006 confirm that the plaintiff was to have a Zoloft trial. Then, on 14 April 2006, he records, “On Zoloft. Has helped somewhat. Less emotionally up and down. Still fatigue … headache … ”. He noted that Zoloft was to be increased to 100 milligrams per day.[26]
[26]DCB 96 and 96B
22 On 25 July 2006, Dr Wong’s notes state that the plaintiff was prescribed 100 milligrams of Zoloft in the morning and five milligrams of sleeping medication, Alodorm, to be taken at night as required.[27] This is the last occasion prior to the 2006 transport accident on which Dr Wong records giving a prescription for anti-depressants or sleeping medication to the plaintiff. However, Dr Little’s notes, on 15 August 2006, record “much of the same. On Zoloft 100 milligrams a day”.
[27]DCB 59
23 Craig Anthony Bakes, swore an affidavit on 5 January 2012 in support of the plaintiff’s application. He stated that he has known the plaintiff since 1999 and they formed a relationship, although she was still living with her mother. He stated that he was aware of the plaintiff’s chemical sensitivity problem and that she “for a short period started taking Zoloft prior to her mother’s death”. He said she “had difficulty coming to terms with her condition and not earning an income. At that time, she was in receipt of a pension”.[28]
[28]PCB 26-27, paragraphs 2 and 3
24 Angela Maria Jones swore an affidavit on 5 January 2012 in support of the plaintiff’s application. She has known the plaintiff for 40 years, since she was five years old. She described the plaintiff, prior to the 2006 transport accident, as being a confident, outgoing person. She was aware of the plaintiff’s allergy problem associated with chemicals and that she was having treatment for it and had been living on a government benefit prior to her mother’s death.[29]
[29]PCB 22-24
The state of the plaintiff’s health after the 2006 transport accident and her mother’s death
25 In paragraphs 8 and 9 of this judgment, I have already outlined the consequences of the 2006 transport accident and her mother’s death claimed by the plaintiff. I have also referred previously to the plaintiff’s evidence under cross-examination in which she stated that, prior to the 2006 transport accident, she did not think that she had been diagnosed with depression and had no recollection of being diagnosed with Post-Traumatic Stress Disorder.
26 Under cross-examination, the plaintiff agreed that the MCSS had caused her to have problems with memory and concentration “a little bit”[30] but stated that these problems had got worse since the 2006 transport accident.[31] She believed that, following the 2006 transport accident, her Zoloft had been increased from 100 to 200 milligrams per day. She stated that, since that accident, she had told Dr Wong that she was not coping and that she was in tears every time she saw him.[32] She claimed that ultimately she had moved from Melbourne, not because of her MCSS alone, but, rather, because she needed to get out of Melbourne because of the reminders of her mother, the church and all the people. She stated that that had been a big part of the reason for the move.[33]
[30]T 51
[31]T 146
[32]T 97-99 and 250
[33]T 271
27 She also stated that, although there had been a dispute amongst her family about turning off her mother’s life support, that had not continued. She stated that, now, she and her siblings “don’t always agree on the same thing, but it doesn’t mean we hate each other’s guts or anything”.[34] However, she stated that, after her mother’s death, it felt like her family “wasn’t a family anymore because my mother was not there to keep us all together”.[35] She stated that, despite moving to Gerangamete, “I just kept dwelling on mum and the accident, what I’ve lost and what I’m missing out on…I’m more scared and cautious and still am…I just keep reliving all the stuff of mum’s accident and I lie in bed at night and I just picture her laying in the hospital room and just – I just can’t get the things out of my head.”[36]
[34]T 291
[35]T 274
[36]T 297
28 Following the 2006 transport accident, the plaintiff continued to be a patient of Dr Wong until 30 July 2008. Save for returning for a pap smear on 23 February 2009, the plaintiff has not consulted Dr Wong again. It would appear that from 19 February 2009, the plaintiff attended the Birregurra Community Health Centre, where she initially consulted Dr McKenzie, and, from 19 January 2010, saw Dr Sarkis.
29 Dr Wong was the author of a number of reports tendered into evidence by the plaintiff[37] and by the defendant.[38] He gave oral evidence at the hearing of this application. His clinical notes were also tendered into evidence.[39]
[37]These were dated 13 February 2002, 19 February 2008 and 30 July 2008, PCB 83Y, 83Z and 83AA.
[38]These were reports to Dr Colin Little dated 8 February 2005, 14 March 2006, 27 August 2007 and 23 February 2009, DCB 75-78.
[39]DCB 49-64L
30 Following the 2006 transport accident, Dr Wong first saw the plaintiff three days after the plaintiff’s mother had died on 13 October 2006. At that consultation, on 16 October 2006, Dr Wong makes no note of the death of the plaintiff’s mother. The recorded reason for the presentation is an inflamed throat and a few days loss of voice. On that occasion, the sleeping medication, Alodorm, was ceased and replaced with Temaze.
31 On 10 November 2006, the plaintiff’s prescription of Zoloft was increased from 100 to 200 milligrams per day. However, Dr Wong was unable to say from his notes why this had occurred. The Temaze sleeping medication of 10 milligrams at night was again prescribed.
32 On 22 November 2006, Dr Wong made a note that the plaintiff “has trouble sleeping” and insomnia was the reason for presentation. The Temaze was ceased and he prescribed Stilnox, 12.5 milligrams as required.
33 On 15 December 2006, the Stilnox was ceased and Alepam, 30 milligrams at night as required, was prescribed to help with sleep. Dr Wong said he reduced Zoloft to 150 milligrams in order to accommodate the new prescription of Alepam.
34 It was not until almost 18 months later, on 27 July 2007, that Dr Wong again prescribed a sleeping medication, Temaze, 10 milligrams daily. Dr Wong’s notes make no mention of Zoloft or any other anti-depressant at this time. A further 18 months passed before Dr Wong’s notes mention a prescription of anti-depressant medication or sleeping medication, although Dr Little’s clinical notes on 19 January 2007 record that her Zoloft was increased from 100 to 200 and then reduced to 150 milligrams.[40]
[40]DCB 966
35 On 1 February 2008 the plaintiff saw Dr Wong, after having consulted her solicitor, Ms Patsy Toop of Clark, Toop & Taylor. Dr Wong recorded on that day, “can’t sleep also wants letter to whoever saying that her life has changed since mum died 13/10/08 (sic). Sleeping problem & requires double amount of Zoloft and transport”.[41] On that day, Dr Wong noted that the prescription of Zoloft, 100 milligrams, ceased and a new anti-depressant, Deptran, 25 milligrams at night, was prescribed, along with a sleeping tablet, Imovan, 7.5 milligrams at night, as required.
[41]DCB 62
36 In response to the plaintiff’s request for a letter, Dr Wong wrote a handwritten letter dated 19 February 2008 as follows:
“Kathleen wants me to write something about her mum’s death that has affected her, and her life has changed. As a GP and a person not living with her I can only write about her scripts and the things she tells me. I noticed she asked to be put on anti-depressant medications because of depression. She is often sad looking and sometimes teary. I also noticed that she is getting more scripts for sleeping pills due to insomnia. In past she has often been punctual for her appointments – not so much now as she says she has lost her mum’s taxi-service. Above all I think she misses her mum a lot, mum’s love, care, companion and just doing things with mum.”[42]
[42]PCB 83Z
37 In his oral evidence, Dr Wong stated that this was his first note of the impact of the 2006 transport accident and the death of her mother upon the plaintiff. He stated that his letter was incorrect insofar as it attributed her need for sleeping pills to the 2006 transport accident, because she had been receiving prescriptions for sleeping medication prior to that time. Under cross-examination, after consulting his clinical notes, he stated that her prescriptions for medication for insomnia were no different after the 2006 transport accident to what they had been before the accident.[43] Indeed, there was a gap in the prescriptions between 10 December 2006 and July 2007. He also confirmed that the plaintiff’s use of Zoloft was irregular and she was not compliant with that medication between 2007 and 2008.[44] He noted that on 1 April 2008, and in June 2008, he had prescribed 50 milligrams of Zoloft, but was unable to say why it had been increased to 150 milligrams in July 2008. He agreed that it did not appear to be “because she was travelling badly from an emotional viewpoint” on that day and that, as at July 2008, his view was “that she was coping all right with things in her life”.[45] He agreed that he had written a letter to the plaintiff’s solicitors, dated 30 July 2008, stating, “When her mum died she did not show much emotion about it, she just kept it inside. As for prognosis I believe she is coping ok”.[46]
[43]T 181-184
[44]T 185
[45]T 188
[46]PCB 83AA
38 Under cross-examination, Dr Wong confirmed that, after the plaintiff’s mother had died, they did not talk much about her mother’s death, and she did not show much emotion in relation to it.[47] He had formed the view, as at 2008, that her prognosis from a psychological point of view was satisfactory. He confirmed that, on 10 June 2008, he had seen the plaintiff and recorded, “just wants scripts. She is feeling good and moving out of Melbourne soon”. On that occasion, he had prescribed Zoloft, 50 milligrams per day. On 16 July 2008 he had recorded, “wants Zoloft script. Happy and things are well”. On that occasion he had written a prescription for 150 milligrams of Zoloft.[48] He had not seen the plaintiff again until 23 February 2009, on which occasion he again wrote a script for 150 milligrams of Zoloft.
[47]T 186
[48]T 186
39 Under cross-examination Dr Wong stated that, in the letter to the plaintiff’s solicitors dated 30 July 2008, he had stated that the plaintiff’s main problem was her multiple chemical syndrome. His view was that, under treatment from Dr Little, her symptoms had improved because she knew what to avoid, and then she moved to the country to be away from all the environmental antigens.[49] He said he was unable to say whether her psychological injuries were secondary to or of less significance than her chemical sensitivity syndrome, “because I do not know the full impact of how the accident affected her after 2006”. He went on to say, “I wasn’t treating her much after the accident for depression. I just wrote her the scripts that she asked for”. He was asked, “Does it not follow that, as far as you were concerned, there was nothing to suggest that she was suffering from a Major Depressive Disorder over that period?” To which he answered, “That’s correct. As far as I was concerned, I wasn’t sensitive to that”.[50]
[49]T 189
[50]T 189-190
40 In re-examination, Dr Wong said, “I believe I was not sensitive to her emotional needs inside her and I did not have the wisdom to refer her on to a psychiatrist because I did not feel that she needed to see a psychiatrist”.[51] As far as the prescriptions for Zoloft were concerned, he stated that he had read his notes, and there was a time when she was on 200 milligrams of Zoloft and she came back and said it was too high, and they reduced it to 150 milligrams, so he was unable to explain why, following the 2006 transport accident, he had increased it from 100 to 200 milligrams a day.[52]
[51]T 193
[52]T 193
41 Dr Wong stated that he could not say that the plaintiff’s sleeping medication had increased following the death of her mother. He noted that, between October 2006 and July 2007, there were just two prescriptions for sleeping tablets. After the prescription of Temaze on 27 July 2007, there had been no prescriptions until February 2008. From February 2008 to February 2009, there were no prescriptions for sleeping pills.[53]
[53]T 194
42 Also in re-examination, he stated that, prior to the 2006 transport accident, there was not any aspect of the plaintiff’s emotional state that was kept from him, but, after her mother’s death she kept her emotional state “inside her”. He stated, “She lost her mum. She didn’t talk to me much about it.”[54] This evidence is in stark contrast to the plaintiff’s claim that, from the time of her mother’s death until she ceased seeing Dr Wong, she spoke to him about the impact of the death of her mother upon her, that she had been as teary and upset with him as she had been in court when mentioning her mother’s death, and she could “distinctly remember telling him” she was not coping and that “I didn’t want to live any more”.[55]
[54]T 195
[55]T 97-99
43 From 19 February 2009 the plaintiff began to attend the Birregurra Community Health Centre in Birregurra. This was because she had moved from Melbourne to Gerangamete. A report from that clinic, authored by Dr Sarkis, to the Transport Accident Commission dated 22 September 2010 was tendered into evidence[56], as were the clinical notes from that practice.[57] Dr Sarkis also gave oral evidence on the hearing of the application.
[56]DCB 103 and PCB 83AB
[57]DCB 97-102
44 At Birregurra Clinic the plaintiff was treated from 19 February 2009 until 17 December 2009 by Dr McKenzie. Prior to September 2009 the consultations appear to relate primarily to gynaecological matters. On 3 September 2009 the clinical notes record, “Not going well, insomnia, not coping, very down. Recently advised by Dr Little that no more to be done. Also recent GA for endometrial ablation”. Dr McKenzie increased the plaintiff’s Zoloft form 150 milligrams per day to 200 milligrams. On 10 September 2009 another prescription of 200 milligrams per day of Zoloft was given. The prescription was for 60 tablets with five repeats. On 12 November 2009 there is reference to some gynaecological matters, as well as the fact that the plaintiff was not sleeping and “ruminating over events of the past”. On 17 December 2009 there is a note of the plaintiff’s history of toxic exposure as well as gynaecological matters.
45 Dr Sarkis first saw the plaintiff on 19 January 2010. The history he took on that occasion was that the plaintiff had been involved in a motor vehicle collision on 2 January 2010 when she had rolled the car in order to miss a kangaroo. She suffered five fractured ribs, a fractured scapular, a pneumothorax, and a fractured right fourth finger, which required pinning, and multiple bruises to the arms and trunk and jaw. She had been an inpatient of Geelong Hospital for 9 days before being discharged to Dr Sarkis’ care. At that stage, she was on Oxycontin and Endone for pain relief. Also, she was subsequently found to have suffered a right rotator cuff tear.
46 In his oral evidence, Dr Sarkis confirmed that his consultations with the plaintiff throughout 2010 primarily related to the sequelae of the 2010 transport accident. He noted that, in September 2011, Dr McKenzie had seen the plaintiff and noted “struggling to cope, tearful, needing further support” and that a referral had been made for counselling. There was a later note by Dr McKenzie on 20 September 2011 that the plaintiff was “struggling to sleep, anxious + +”. He stated that he had assumed that the plaintiff’s depression was from her multiple chemical sensitivities and chronic fatigue, as well as due to recurrent gynaecological problems.[58] However, in the 2010 transport accident she had suffered significant physical injuries, for which she required Oxycontin for 14 months.[59] He recalled that, by the end of each consultation with him, the plaintiff would be in tears and crying and very flat and he just accepted it as her norm and did not record it each time.[60] He thought she was “a very sad melancholic personality”.[61]
[58]T 215
[59]T 228
[60]T 224
[61]T 209
47 Dr Sarkis stated that he never heard anything about the plaintiff’s mother’s accident until September 2011. His notes on 2 September 2011 indicate that he had seen the plaintiff in relation to a TAC enquiry relating to her treatment following the 2010 transport accident. He then saw her on 7 September 2011 and had made a note, “Now also claiming TAC for post-traumatic stress related to mother’s MCA 7-10-06”. He noted the plaintiff’s mother’s injuries and that life support had been turned off and had recorded “since then unresolved grief, family problems – needs counselling!”.[62]
[62]DCB 101
48 Dr Sarkis believed that, in between the consultations of 2 and 7 September, a letter had arrived from the plaintiff’s solicitors, Clark Toop & Taylor, requesting information concerning the 2006 transport accident and the plaintiff’s mother’s death.[63] He stated that it was only after he received that letter that the plaintiff had discussed the accident and her mother’s death with him to the first time.[64] Dr Sarkis stated that the plaintiff had been seen by a TAC psychiatrist, who had advised that she be referred to a clinical psychologist. Accordingly, he initiated a Mental Health Plan and a referral to Andrew Winter, clinical psychologist, for ongoing counselling and therapy. In addition, she also began to see a psychiatrist, a Dr McConnell in Geelong.[65]
[63]Dr Sarkis stated that the letter form the plaintiff’s solicitors appeared to have been erroneously dated 28 July 2008 because it was accompanied by an authority signed by the plaintiff, which was dated 11 August 2011. T 230-1
[64]T 207 and 230-1
[65]T 208
49 Dr Sarkis said that much of the plaintiff’s treatment following the 2010 transport accident took place at Geelong Hospital Outpatient’s Department, however, she had been seen at his practice for a number of other issues. On 10 January 2011 she had developed hyperprolactinemia. This involved her pituitary gland producing excessive amounts of prolactin hormone and she was literally squirting milk out of her right breast uncontrollably. He stated that his first thought was that she had a cerebral or pituitary tumour, which required urgent treatment and assessment by way of a CT scan of the brain, and this would probably have compounded her anxiety. In fact, she did not have a pituitary tumour, but was referred to a gynaecologist for management.[66] She also had ongoing problems of symptoms from MCSS and CFS.[67] In addition, she had major problems with medications from the beginning of 2011. She had suffered some infections, but, also, had several changes of anti-depressants, with side-effects, and, then, in February 2012, began to get menopausal symptoms by way of hot flushes, and her anti-depressants had to be changed again back to Zoloft.[68]
[66]T 228-229
[67]T 232
[68]T 232-3, T 239
50 As previously stated, Dr Sarkis had assumed that the plaintiff’s multiple chemical sensitivities and quite extensive gynaecological problems and recurrent surgeries had contributed to her depression. However, in retrospect, he stated that he could see that the 2006 transport accident and her mother’s death had contributed to her depressive state. He also mentioned that the 2010 transport accident would have increased her depression and grief. He stated that she appeared to suffer some “survivor guilt syndrome”, and had told him on several occasions, “I should have died and not my mother”. He said that he had not recorded this in his notes, but he remembered her saying it to him frequently after the 2010 transport accident.[69]
[69]T 210
The evidence of opinions of specialists on the issue of causation
51 Following the request by the plaintiff to Dr Wong for a letter about the impact of her mother’s death upon her (which resulted in the handwritten letter by Dr Wong dated 19 February 2008[70]), no referral was made for the plaintiff to be treated by a psychologist or psychiatrist. However, the plaintiff’s solicitors requested that she undergo a medico-legal assessment by Dr Epstein, psychiatrist, which took place on 5 December 2008. Based on the plaintiff’s history to him, Dr Epstein formed the opinion that the plaintiff had developed symptoms of Post-Traumatic Stress Disorder following the death of her mother as a result of the 2006 transport accident. This was characterised by recurrent intrusive thoughts about the accident and her mother’s appearance, together with nightmares and flashbacks to events surrounding the accident, concerns about her own safety, hypervigilance and a sense of bleakness. He also considered that the plaintiff had developed a Major Depressive Disorder contributed to by a perception that there had been a breakdown in the relationship with her siblings arising from events surrounding her mother’s death. Dr Epstein considered that these relationship problems appear to have arisen as a result of the accident and its aftermath. He considered that she needed psychiatric or psychological treatment.
[70]PCB 83Z
52 Dr Epstein reviewed the plaintiff on 22 November 2011. On this occasion, he remained of the view that the plaintiff had suffered a Major Depressive Disorder and Post-Traumatic Stress Disorder as a consequence of her mother’s death following the 2006 transport accident and the subsequent breakdown in the relationship with the plaintiff’s siblings. He considered that, in her own transport accident on 2 January 2010, there had been an exacerbation of her Post-Traumatic Stress Disorder and this had added to her depressive symptoms.
53 Dr Epstein reviewed the plaintiff again on 10 December 2012. His opinion was unchanged. He noted ongoing insomnia, also nightmares about her mother’s death, as well as her own accident, flashbacks to her mother’s accident, as well as her own accident, and frequent thoughts about her mother’s death and the breakdown of the family. He considered that the plaintiff appeared significantly depressed and anxious and told him that she would never get over the effects of her mother’s death, and that this had been exacerbated by her own accident and physical symptoms. Dr Epstein considered that she still had a Major Depressive Disorder and Post-Traumatic Stress Disorder as a consequence of her mother’s death and the breakdown in the relationships with her siblings. He thought both these conditions had been exacerbated by her own accident.
54 The plaintiff saw Dr Weissman, consultant psychiatrist, on behalf of the defendant, on 16 February 2010. On the basis of the history given to him by the plaintiff, he concluded that the plaintiff’s grief following the death of her mother had “turned into an abnormal or pathological grief reaction or complicated bereavement”. He said this was due to “the nature, severity and extent of the claimant’s grief and depression, the impact upon her quality of life and level of function and the associated guilt and self-blame”. He went on to state that her condition had “been complicated by the development of a chronic Major Depressive Disorder of moderate intensity or severity, associated with symptoms and features of traumatisation”. At that stage, he did not consider that her symptoms and psychiatric state had stabilised. He considered that she required expert treatment from a consultant psychiatrist or an experienced clinical psychologist, involving grief therapy.
55 Dr Weissman reviewed the plaintiff again on 18 July 2012. He noted “even though the claimant was still intermittently tearful and distressed, and grief-stricken to a certain degree, she was clearly less tearful, distressed, distraught, grief-stricken and depressed compared with last time”.[71]He took a history that the plaintiff had commenced seeing a psychiatrist, Dr Stephen McConnell in January 2012 and, in February 2012, had started seeing a psychologist, Mr Andrew Winter. He noted that she was currently on 200 milligrams of Zoloft daily and thought she should remain on this indefinitely. He considered that she should continue to see a consultant psychiatrist twice a year for three years and the psychologist on a two to three weekly basis for the next 9 to 12 months. After that time, he thought she would require four to six termination sessions with a psychologist, and then be able to progress onto self-management. He considered that there had been mild improvement of her psychiatric state compared to when he had last seen her in February 2010 and that her prognosis was fair, describing it as “a little more positive, optimistic and favourable than last time”.[72] He described her as suffering from a chronic Major Depressive Disorder of mild to moderate intensity or severity, associated with traumatisation features, an unresolved grief reaction and complicated bereavement.
[71]DCB 40
[72]DCB 48
56 As previously mentioned, the plaintiff’s consultation with Dr McConnell, psychiatrist, in January 2012 was the first occasion upon which she was referred for specialist treatment for any psychological or psychiatric condition alleged to flow from the 2006 transport accident and her mother’s death. Dr McConnell diagnosed a Post-Traumatic Stress Disorder and chronic Major Depressive Disorder, both at severe levels, and ongoing complicated/unresolved grief. He considered these conditions were caused by the death of the plaintiff’s mother in the 2006 transport accident and that she was severely disabled by ongoing psychiatric and psychological impacts of this, as well as associated family discord with her siblings since the fatal accident. He saw the plaintiff again in July 2012 and expressed the view that she needed ongoing counselling and he was guarded about the possibility of medication having any major impact on her psychiatric symptoms. He considered the prognosis of a full recovery functionally to be poor.
57 Apart from one session of grief counselling in January 2007[73], the plaintiff did not see anyone for counselling about the impact of her mother’s death until she consulted the psychologist, Mr Andrew Winter, on 22 March 2012. He considered that she clearly met the criteria for Post-Traumatic Stress Disorder (severe level) and also had severe levels of anxiety, together with levels of depression, which fluctuate from moderate to severe. He thought the plaintiff’s condition was very problematic and that she would need ongoing support and therapy for the foreseeable future. He made reference to “a complex background prior to her mother’s death”[74], which may have lead to greater vulnerability to the impact of her mother’s death, but the extreme closeness of the relationship she had with her mother was of more significance. He considered this, together with the days she spent in hospital with her mother, her role in the decision to turn off life support, the conflict with other family members, subsequent nightmares, flashbacks and ruminations, all to be central to the diagnosis of Post-Traumatic Stress Disorder, which he attributed primarily to the death of her mother following the 2006 transport accident.
[73]PCB 18, paragraph 35 of the plaintiff’s first affidavit. (The plaintiff apparently was not able to recall the identity of the counsellor.)
[74]Mr Winter referred to a back injury in the early 1990s, an abusive partner in the 1990s, caring for her father leading up to his death in 1998 and increasing ill-health during the 2000s due to MCSS and CFS, which caused her to stop work in 2005.
58 The plaintiff’s solicitor obtained a medico-legal opinion from Dr Paoletti, psychiatrist, who saw the plaintiff in or about November 2012 and embodied his opinion in a report dated 8 November 2012. He considered that the plaintiff had a probable background Dysthymic Disorder associated with her allergies. He diagnosed her as suffering a Post-Traumatic Stress Disorder, with traffic anxiety and panic attacks, relating to the circumstances of her mother’s death and exposure to her dying process, and possibly reinforced by her own subsequent motor vehicle accident in 2010. He also considered that she had a bereavement disorder due to the death of her mother with unresolved grief, noting that she was very close to her mother and that a loss generally has more adverse impact if it is outside one’s control. He considered that her mother’s accident and death and exposure to her mother’s dying process were significant contributing factors to her current illness and the sole factors in the precipitation of the Post-Traumatic Stress Disorder and bereavement. He stated, “The role of her own motor vehicle accident is not entirely clear but her symptoms were well established prior to that”.[75]
[75]PCB 66
59 A further medico-legal report was obtained by the plaintiff’s solicitors from Dr Athey, psychiatrist. He saw the plaintiff on 18 December 2012. He considered that the plaintiff had never overcome the loss of her mother and had progressed to develop a severe anxiety disorder commonly known as Post-Traumatic Stress Disorder and a Major Depressive Disorder. He considered that using the DSM-IV multiaxial format, a current global assessment of functioning placed her at the lower end of the moderate symptom scale with significant disruption of occupational and social functioning. This took into account possible dependent traits, as well as her multiple chemical sensitivity or multiple allergy syndrome, along with the Post-Traumatic Stress Disorder and Major Depressive Disorder and loss of her mother.
Analysis
60 In order for the plaintiff to succeed in this application it is necessary for her to establish on the balance of probabilities that at the time of the hearing:
(a)The 2006 transport accident and subsequent death of her mother is a cause of a current mental or behavioural disturbance or disorder, which, in this case, is alleged to be Post-Traumatic Stress Disorder and/or Major Depressive Disorder.
(b)That the plaintiff’s mental or behavioural disturbance or disorder is severe and long-term.
It is well established that the word “severe” in paragraph (c) of s93(17) of the Act is a stronger word than “serious” in paragraphs (a) and (b) and that the word “serious” means a degree of gravity or significance beyond the trivial (or “minor”) and the moderate.[76]
It is also clear that in a case such as this (where there is evidence of some pre-existing psychological or psychiatric condition or conditions and, also, a subsequent event, such as the 2010 transport accident, which, also, has had some psychological or psychiatric impact), it is not sufficient to find that the plaintiff’s current condition is severe and long-term and then simply assert that the 2006 transport accident plays a part or materially contributes to that condition. The plaintiff must satisfy the Court that the 2006 transport accident has given rise to an injury. She must prove the nature and extent of that injury and any impairment and consequences flowing from it. This must be achieved by comparing the plaintiff’s pre-2006 transport accident psychological or psychiatric state with her post-2006 transport accident state and proving that the 2006 transport accident is a cause of her current claimed severe mental or behavioural disturbance or disorder and that such disturbance or disorder is long-term.[77]
[76]Mobilo v Balliotis & Others [1998] 3 VR 833.
[77]Petkovski v Galletti [1994] VR 346; AG Staff Pty Limited v Filipowicz [2012] VSCA 60
61 Mr Ingram, on behalf of the plaintiff, submitted that the plaintiff should be accepted as a witness of credit concerning her pre- and post-2006 transport accident mental status. He urged that the Court should find that Dr Wong had failed to diagnose the plaintiff’s post-2006 transport accident condition and that the Court should accept the diagnosis of Post-Traumatic Stress Disorder and Major Depressive Disorder made by Dr Epstein in 2008, that is, prior to the occurrence of the 2010 transport accident.
62 The plaintiff has a complex medical history and multiple attacks were made upon her credit on behalf of the defendant. Ms Hartley of Senior Counsel submitted that the plaintiff was motivated to tell untruths in support of her case. She alleged that the plaintiff had deliberately omitted details of relevant history and had been “less than frank” with her own treating doctors and, also, specialists who examined her for medico-legal purposes. Further, she had signed claim forms which were misleading and, also, had given evidence to the court on a number of matters which was inaccurate and unreliable. Ms Hartley’s submissions were extremely detailed. They ran to 35 pages of written submissions, to which Ms Hartley spoke for approximately four hours. While diligence is to be commended, counsel need to be aware that there is a balance to be struck between giving sufficient detail and prolix submissions, which unnecessarily consume valuable court time. I do not propose to reiterate all of those submissions, or those presented on behalf of the plaintiff.
63 I wish to make it clear that I do consider that the plaintiff is mentally unwell and that this impacted upon her capacity to give accurate and reliable evidence. I do not consider that the plaintiff was endeavouring to deliberately mislead doctors or the Court. She is a vulnerable person and, in my view, has suffered a number of afflictions, both physical and mental, which may well have contributed to her current state of mental ill health. She was very close to her mother and she seems to have been heavily dependent upon her. Her mother died in circumstances that were deeply distressing for the plaintiff. She obviously misses her very much. These matters flowing from the 2006 transport accident are possibly a cause of some of her current psychological or psychiatric symptoms, but the plaintiff must prove more than this. Upon analysing all of the evidence, I am unable to be satisfied on the balance of probabilities that, as at the time of the hearing, the 2006 transport accident and the death of her mother is a cause of an injury by way of an actual mental or behavioural disturbance or disorder, whether that injury be Post-Traumatic Stress Disorder, Major Depressive Disorder or Bereavement Disorder. My reasons are as follows:
(i)It is trite to say that grief is a deeply personal and potentially isolating experience. Not everyone would feel comfortable discussing her distress flowing from the death of a much loved relative with others, particularly a stranger, even if that stranger happened to be a treating medical practitioner. However, I find that I am unable to reconcile the conflict of the plaintiff’s evidence, that she regularly discussed her feelings regarding the loss of her mother with Dr Wong and was tearful and distressed when doing so, with the evidence of Dr Wong, that the first occasion upon which the plaintiff brought up the impact of the 2006 transport accident was approximately 16 months after the occurrence of the accident, namely on 1 February 2008. This was after the plaintiff had recently consulted her solicitor. Contrary to the plaintiff’s evidence, Dr Wong states that he has no note of the plaintiff talking about her mother’s accident prior to this day. His recollection is that she did not talk about it. He also stated in a letter to her solicitors, dated 30 July 2008, “When her mum died she did not show much emotion about it. She just kept it inside”.[78] Given that Dr Wong had made a note prior to the plaintiff’s mother’s death on 4 March 2004, that the plaintiff was “feeling sad, teary, no energy for a few months …”[79], it makes no sense that he repeatedly would have failed to note that the plaintiff was showing significant ongoing emotional distress following her mother’s death.
[78]PCB 83AA
[79]DCB 64A
(ii)Even if the plaintiff felt unable to confide her feelings concerning the loss of her mother to Dr Wong because “he wasn’t the most talkative doctor, didn’t have the best bedside manner”[80] (and that is inconsistent with the plaintiff’s assertion that she did bring up with him that she was not coping after her mother’s death), it is difficult to understand how her next treating general practitioners, Dr McKenzie and Dr Sarkis, also, repeatedly could have failed to note her ongoing psychological symptoms flowing from her mother’s death, if the plaintiff had told them about such symptoms.
[80]T 102
The plaintiff gave an explanation that she did not tell the doctors at the Birregurra Clinic, at first, because they were strangers and she assumed that it would be in her medical history that was sent to the clinic by Dr Wong.[81] However, when it was put to her that there was no reference to the 2006 transport accident in the Birregurra clinical notes until September 2011, the plaintiff denied that that was the first occasion that she had spoken about it at that clinic. She claimed, “Most visits I went there I was upset, not coping” albeit that she was unable to give a precise date. She stated that she certainly spoke a lot about it after the 2010 transport accident, including guilt issues concerning her still being alive, whilst her mother was dead. She believed that she spoke about it to both Dr Sarkis and Dr McKenzie.[82] This contrasts with Dr Sarkis’ evidence that it was not until he had received a letter from the plaintiff’s solicitors that he learned of her mother’s death. He then discussed the matter with her on 7 September 2011 and that was the first time that she had discussed it with him.[83] There is no note in the Birregurra clinical record that Dr McKenzie had discussed it during any consultation prior to this date.
[81]T 108-109
[82]T 112-113
[83]T 207
Dr Sarkis’ letter to the Transport Accident Commission dated 22 September 2010[84], makes mention of the plaintiff’s pre-accident Chronic Fatigue Syndrome, multiple chemical sensitivities and depression for which she had been on Zoloft for some five years. The fact that it makes no mention of any psychological or psychiatric conditions referrable to her mother’s death in 2006, supports my conclusion that neither Dr Sarkis or Dr McKenzie had any knowledge of any psychological sequelae relating to her mother’s death at that time.
[84]DCB 103
Dr Sarkis stated in oral evidence that, in retrospect, he could see that the plaintiff’s mother’s death had contributed to her depressive state. However, he considered that the 2010 transport accident would have increased her depression because of Survivor Guilt Syndrome. He said that he recalled her frequently saying, after her own accident, that she should have died, not her mother.[85] He noted that the clinical records before he started treating the plaintiff recorded an increase in her dosage of Zoloft from 150 to 200 milligrams on 9 September 2009 and there were references to her “not going well, insomnia, not coping, very down. Recently advised by Dr Little that there is no more to be done”. He said there was nothing on the face of the record to indicate her problems were referrable to her mother’s death. Further, a comparison of the number of prescriptions for Zoloft with the period of time over which it was prescribed, reveal that there were months which would not be covered with medication, and that possibly indicates an intermittent use of Zoloft.[86]
[85]T 210
[86]T 227
(iii)Following the plaintiff’s request to Dr Wong for a letter detailing the impact of her mother’s death upon her, Dr Wong produced the aforementioned handwritten letter dated 19 February 2008. This was an opportunity for the plaintiff to give to Dr Wong full details of how her mother’s death had affected her. The letter mentions that the plaintiff asked to be put on anti-depressant medication because of depression. It noted that she is often sad-looking and sometimes teary. Also, Dr Wong mentioned that he had noticed that she was getting more scripts for sleeping pills due to insomnia (although, as previously mentioned, he resiled from this in his oral evidence after examining his clinical records). He noted that she was not so punctual for appointments anymore as she said that she had lost her mum’s taxi service, that she misses her mum a lot, her love and care and companionship, and doing things with her mother.
I appreciate that Dr Wong is not a psychiatrist, but he had been the plaintiff’s treating general practitioner since approximately 2000. The details in this brief, one-page letter are scant and in no way suggest a mental disorder or disturbance requiring a referral for specialist treatment. Unlike the history given to Dr Epstein, to whom the plaintiff’s solicitors sent her for a medico-legal report eight months later, on 5 December 2008, Dr Wong’s letter contains no mention that “she states that as a result of her mother’s death she has developed significant symptoms”.[87] Nor does it mention that her mother’s car had been extensively damaged and was written off, her deep distress on viewing her mother in the hospital, her criticism by her siblings for not being with her mother as much as she could (despite her protests about her own illness), her horror at the appearance of the car, nightmares and flashbacks to visions of the 2006 transport accident and her mother’s condition, her feeling shattered over the family dispute about turning off her mother’s life support system and ongoing difficulty with family members, her having to move to get away from reminders of the 2006 transport accident, feeling suicidal, feeling uneasy as a driver and avoiding remainders of the 2006 transport accident, or having significant problems with memory and concentration.
[87]PCB 30
Mr Ingram, on behalf of the plaintiff, invited the Court to find that Dr Wong had failed to grasp the severity of the plaintiff’s symptoms because he was focussed upon her depression being associated with her MCSS and CFS. He submitted that Dr Wong had failed to correctly diagnose her mental condition flowing from the 2006 transport accident and to refer her for specialist treatment. It seems to me that this is answered by Dr Wong’s own evidence: “I’m not very sensitive to people’s depression unless they tell me”[88] and that there was nothing to suggest to him that she was suffering from a Major Depressive Disorder over the period that he treated her.[89] He also stated, “I’ve treated a lot of people with depression, but, if they are very depressed, I will send them out to a psychiatrist.”[90]
[88]T 187
[89]T 190
[90]T 192
(iv)Mr Ingram submitted that the Court should prefer the opinion expressed by Dr Epstein to that of Dr Wong, because he is a highly experienced psychiatrist, who is trained to elicit relevant information from a patient in order to make a psychiatric diagnosis. Obviously, the opinion of any medical practitioner is reliant upon, not only clinical signs and symptoms apparent to that practitioner, but also the history given by the patient. Dr Epstein is certainly a very experienced psychiatrist and he seems to have endeavoured to obtain as full a history as possible from the plaintiff when he first saw her on 5 December 2008. He notes, “There are some indications that she was experiencing depression prior to her mother’s death”, and goes on to note the diagnosis of MCSS and CFS, the fact that she last worked in July 2005 and that “she had been placed on anti-depressant medication during 2005”.[91] However, Dr Epstein does not appear to be aware of the following matters of history:
[91]PCB 36
· In the mid-1990s the plaintiff suffered migraine headaches which were of sufficient severity to require time off work and receipt of sickness benefits.[92] Although in paragraph 12 of the plaintiff’s first affidavit, she stated that her migraines subsided in 1997 whilst she was enrolled in a Bachelor of Nursing at Ballarat University, Dr Wong’s handwritten notes, which commence on 10 February 2000, have very regular notations of ongoing migraine headaches. Yet paragraph 17 of the plaintiff’s first affidavit, conveys the impression that her migraines started up again when she commenced work at Super Finish in 2001.
[92]T 49 and PCB 12
· In 2001, in the context of seeing Dr Friedman, gastroenterologist, the plaintiff was described as “quite moody, tearful and depressed” and gave a previous history of Post-Traumatic Stress Disorder which caused him to suggest a referral to a psychologist, Ros West.[93] Further, in November 2001 the plaintiff saw Ros West, who took “an emotional history” and gave her some “homework”.[94] No further evidence is before the Court concerning her consultations with Ms West. However, on 4 March 2004, Dr Wong’s notes record “has been depressed before and was on Zoloft for one year”. He then restarted her on Zoloft at a dosage of 50 milligrams per day.[95] Further, on 20 May 2005, Dr Little signed a medical certificate in support of the plaintiff’s application for a disability pension relating to her Chronic Fatigue Syndrome associated with chemical sensitivity in which he noted that the plaintiff was on “anti-depressants (Zoloft)” and that this was “before current illness”.[96] In addition, Dr Epstein does not seem to be aware that in a TAC claim form relating to the 2006 transport accident, signed by the plaintiff on 19 March 2008, the plaintiff acknowledged that before that accident she had required treatment by a psychologist or psychiatrist.[97]
[93]DCB 122 and 124: Mr Ingram submitted that the Court should place no weight upon the alleged history of Post-Traumatic Stress Disorder as the plaintiff had denied any knowledge of such diagnosis (T 72). However, it seems that by the end of her evidence the plaintiff was really saying she had no recollection of such a diagnosis (T 74, 85 and 298). He further submitted that, as the defendant had not adduced evidence from Dr Friedman about it or given a reason for failing to do so, the Court should infer that Dr Friedman’s evidence would not have assisted the defendant and more readily accept the plaintiff’s evidence, pursuant to the principles in Jones v Dunkel (1959) 101 CLR 298. In this case, I consider that such an inference is not warranted, particularly as the plaintiff’s final position was that she had no memory of the diagnosis (as distinct from disputing that it had ever been made). Moreover, as it was contained in not one, but two, of Dr Friedman’s reports (DCB 122 and 124). I do not consider it appropriate to draw an inference that further evidence from Dr Friedman would be unlikely to assist the defendant’s case.
[94]DCB 121
[95]DCB 64A
[96]DCB 94
[97]See paragraph 22 of the form DCB 5. In this paragraph, the words have been added “WorkCover claim sent by insurer”. This would appear to be a reference to her claim with respect to MCSS because a later claim for impairment benefits (signed by the plaintiff on 29 March 2011) notes “psychologist upset” and “anxiety and depression” amongst the conditions claimed (paragraphs 3 and 4). It also notes that the plaintiff first became aware of the condition in “02” (paragraph 6) DCB 65.
· Dr Epstein relied upon the plaintiff telling him that her dose of Zoloft, which had been prescribed in 2005 in the context of her CFS and MCSS, was increased after her mother’s death to 200 milligrams per day. He does not seem to be aware that, after Dr Wong prescribed 50 milligrams of Zoloft on 14 March 2004, there is no further prescription of Zoloft mentioned until 14 March 2006, when Dr Little’s clinical notes record “Zoloft trial”. Then, on 11 April 2006 Dr Little made a notation that her Zoloft was to be increased to 100 milligrams per day. On 15 August 2006 Dr Little’s notes record “much the same. On Zoloft ® on 100 milligrams/day”. This is only two months before her mother’s death.[98] Certainly, shortly after the plaintiff’s mother’s death, Dr Wong, on 10 November 2006, did increase the plaintiff’s dosage of Zoloft to 200 milligrams per day[99], however, this was not an enduring situation. On 15 December 2006 it was reduced to 150 milligrams per day.[100]
[98]DCB 96B
[99]DCB 60
[100]DCB 60
Dr Wong did not prescribe any further anti-depressant medication until the plaintiff attended on 1 February 2008, after having seen her solicitor, requesting the letter from Dr Wong stating how her life had changed since her mother died and also requesting double the amount of Zoloft. Dr Little’s clinical records on 19 January 2007 refer to a history of Zoloft having been increased from 100 to 200 and then reduced to 150 milligrams per night. Again, on 27 August 2007 Dr Little’s notes refer to the plaintiff being “on Zoloft 150 milligrams”. These records do not note that Dr Little was prescribing Zoloft but, rather, seem to be a reference to the prescriptions given by Dr Wong. In any event, in his oral evidence, Dr Wong stated that, on comparing the number of prescriptions for anti-depressants with the time over which they had been prescribed, the plaintiff had not been compliant with her anti-depressant medication.[101]
[101]T 185
· Dr Epstein took a history that the plaintiff’s sleep pattern had deteriorated after her mother’s death. However, he does not seem to have a history that she suffered problems with sleep beforehand. It was clear from Dr Wong’s evidence that the plaintiff had been prescribed sleeping medication prior to the death of her mother, and, in particular, on 25 July 2006 (Alodorm 5 milligrams at night[102]). Also, Dr Friedman, gastroenterologist, had noticed “mild sleep disturbance” in a letter to Dr Wong as early as 8 November 2001.[103] In any event, Dr Wong’s oral evidence was that the plaintiff had often complained of insomnia and he had tried various types of sleeping pills for her and that these complaints had occurred both before and after her mother’s death. He stated that his prescriptions for Temazepam, in November 2006, and Serepax, in December 2006, were in response to the plaintiff’s ongoing requests for sleeping medication. Moreover, the position in relation to her complaints of insomnia and medication prescribed for it by him, were no different after the 2006 transport accident than beforehand. Further, after Dr Wong gave the plaintiff a prescription for sleeping medication on 15 December 2006, there was not another prescription until July 2007, and then a gap until February 2008 before any more sleeping medication (Imovane) was prescribed.[104]
[102]DCB 59
[103]DCB 122
[104]T 181-183
· Dr Epstein noted that the plaintiff “saw the car where it had been stored. She was horrified by the appearance of the car and horrified by the photographs that had been taken at the accident scene and was experiencing nightmares and flashbacks to visions of the accident and to her mother’s condition”.[105] However, the affidavit by Angela Maria Jones, states that the plaintiff told her “that her mother’s vehicle hardly had any damage on it”[106] and the affidavit by Craig Anthony Bakes states “her mother had an accident which left her vehicle with virtually no marks on”.[107]
[105]PCB 33
[106]PCB 24
[107]PCB 28
· Dr Epstein took a history from the plaintiff that she had been suicidal in April 2008. There is no reference to this in Dr Wong’s clinical notes. In fact, his records indicate that on 1 April 2008 her dosage of Zoloft was 50 milligrams per day and that another anti-depressant, Deptran, which he had prescribed in February, was no longer prescribed. Moreover, on 10 June 2008 his clinical note is that the plaintiff is “feeling good” and on 16 July 2008 that she is “happy and things are well”.[108]
[108]DCB 63
(v)It is evident from the history which the plaintiff gave to Dr Epstein when he saw her for a second time on 22 November 2011 and for a third time on 10 December 2012 that the plaintiff’s psychiatric/psychological condition has been impacted upon by events subsequent to her mother’s death, particularly the 2010 transport accident. He noted that the plaintiff told him that her accident was in some ways similar to that of her mother. He noted the various injuries, and that a chest tube was inserted in the plaintiff at the Colac Hospital, but she needed to be transferred to Geelong Hospital for management, where she suffered complications by way of surgical emphysema. He noted that she had nightmares and flashbacks to her mother’s accident, as well as her own accident, and stated that during 2010 she had contact with Life Line and Beyond Blue with regard to both accidents.
The plaintiff told Dr Epstein that she was referred to a psychiatrist mainly because of symptoms from her mother’s accident, but also from her own accident. She continued to have nightmares about both accidents and avoided reminders of either accident. She also gave a history that, in July 2011, a friend’s sister was killed in a car accident and this had made her own distress even worse. Further, one of the plaintiff’s brothers developed a pulmonary cyst and was admitted to The Alfred Hospital in May 2012. She described the progress of his condition as being “much too close to what had happened with her mother and she found it very distressing. Her mother had been taken to the same hospital after her accident and her brother was also on life support as her mother had been.”[109]
[109]PCB 48
Dr Epstein’s conclusion remained that, as a consequence of her mother’s death following the 2006 transport accident, the plaintiff still has a Major Depressive Disorder and Post-Traumatic Stress Disorder. In subparagraph (iv) above, I have referred to the deficiencies in history which, in my opinion, erode the validity of this opinion. Dr Epstein also concluded that her symptoms of depression and anxiety were exacerbated by her own transport accident on 2 January 2010. He stated that there had been an exacerbation of her Post-Traumatic Stress Disorder and this has added to her depressive symptoms. He considered that the plaintiff had a psychiatric impairment of 30 per cent, of which 15 per cent was attributable to her mother’s accident in October 2006, 10 per cent to her own accident in January 2010 and 5 per cent related to her ongoing physical symptoms from her CFS and MCSS. Although these percentages are not relevant for the purposes of this application, they do indicate that Dr Epstein considers half of her present psychiatric impairment to be attributable to factors other than the 2006 transport accident.
I note that the plaintiff’s close friend, Mr Bakes, in his affidavit states that, “After the 2010 accident the horror of her mother’s accident became even more apparent” and he goes on to describe the plaintiff’s guilt because she survived her accident but her mother did not.[110] The same concept of survivor guilt following the plaintiff’s 2010 accident is referred to by Ms Jones in her affidavit.[111]
[110]PCB 28, paragraph 11
[111]PCB 24, paragraph 10
(vi) The plaintiff relied upon the affidavit of Mr Bakes, who has known her since 1999, to corroborate the effects that the 2006 transport accident and her mother’s death had upon her. However, much of Mr Bakes’ evidence as to the impact of the plaintiff’s mother’s death does not accord with other material before the Court.
·He states that he was aware that she was taking Zoloft for a short period prior to her mother’s death, whereas the history, according to Dr Wong’s notes predates March 2004.
·He comments on a “massive difference in her demeanour” after her mother’s death and that she “required increase (sic) dosages of her medication”, and that “she transformed from a confident to a worthless individual”.[112] However, earlier in his affidavit he had described how the plaintiff had difficulty coming to terms with her chemical sensitivity problem and not being able to work.[113]
[112]PCB 27, paragraph 5
[113]ibid, paragraph 3
One does not get the impression of a confident individual from the medical reports of her condition prior to her mother’s death. It is clear that she suffered years of nausea, vomiting, headaches and lethargy, along with abdominal pain and musculoskeletal pain/fibromyalgia associated with her symptoms of CFS and MCSS. Dr Little’s reports, as recently as 26 February 2009, contain references to her feeling constantly tired and claiming reduction in efficiency of memory and concentration. He has described her as “a thin, rather anxious woman”[114] Also, as previously mentioned, it is apparent from Dr Wong’s notes that the plaintiff had presented on 4 March 2004 as “sad and teary” with a history of no energy for a few months and stating that she had been depressed before and had been on Zoloft for one year.[115]
[114]PCB 83
[115]DCB 64A
·In paragraph 6 of his affidavit, Mr Bakes referred to the plaintiff having suffered “a dramatic weight loss” after her mother’s accident. Although there is material to indicate that she suffered very substantial weight loss prior to being diagnosed with MCSS, Dr Wong gave evidence that there had been no report of weight loss since her mother’s death.[116] This accords with the history taken in December 2008 by Dr Epstein that “her weight has remained unchanged since her mother’s death”,[117] and his subsequent reports in November 2012 and December 2012 note that her weight has remained unchanged since she was last seen.[118] The plaintiff made no mention of weight loss in either of her affidavits, but under cross-examination claimed that after her mother’s accident she “lost a lot of weight and regained a little”. In February 2010, Dr Weissman had recorded that she lost about 15 kilograms immediately after her mother’s death, but had since gained a couple of kilograms.[119] However, the plaintiff was unable to explain the history recorded by Dr Epstein and stated that she was not saying that he had it wrong.[120] In the light of the inconsistent evidence to which I have referred, I am unable to be satisfied on the balance of probabilities that the plaintiff did suffer a substantial loss of weight following her mother’s death, as distinct from losing approximately 20 kilograms some time prior to that related to her MCSS.
[116]T 173
[117]PCB 34
[118]PCB 41 and 49
[119]DCB 30
[120]T 145
·Mr Bakes referred to the plaintiff having “a terrible memory. She seems to be off with the fairies.”[121] However, as already mentioned, the plaintiff’s complaints of impaired concentration and memory are well documented for many years prior to her mother’s death, particularly in the reports of Dr Little. The plaintiff under cross-examination claimed these problems worsened after her mother’s death.[122] However, Dr Epstein found “no obvious problems with memory or concentration”.[123] Dr Paoletti found concentration a little reduced, but no apparent memory deficits,[124] and Dr Athey found her memory intact and that her concentration varied with her distress levels, which was a normal finding.[125] In the light of this evidence, I am not satisfied on the balance of probabilities that the 2006 transport accident is responsible for any appreciable impairment of the plaintiff’s memory or concentration.
[121]PCB 27, paragraph 7
[122]T 146
[123]PCB 35, 42, 50
[124]PCB 65
[125]PCB 75
·Mr Bakes stated that, since the 2006 transport accident, the plaintiff “wakes up in night sweats”.[126] However, under cross‑examination the plaintiff acknowledged that she suffers night sweats in association with her MCSS condition and that that has been the case since a couple of years prior to the 2006 transport accident. She stated that Mr Bakes was not correct on this point and that he did not know her entire medical history.[127]
[126]PCB 28, paragraph 7
[127]T 272
·Mr Bakes stated that the plaintiff had, not only a “death picture” of her mother in the accident, but also “She has nightmares about her family”.[128] The plaintiff does not claim to have nightmares about her family. She stated that, over the years since her mother’s death, difficulties with the family relations had dissipated.[129]
[128]ibid
[129]PCB 21C, paragraph 6
Although Mr Bakes is obviously a close friend, who is concerned about the plaintiff’s welfare, I consider that the abovementioned matters in his affidavit are inaccurate. I consider that some of these same matters referred to in the affidavit of Ms Jones[130] are also inaccurate, although, I accept that it is true, as Ms Jones and Mr Bakes say, that the plaintiff did have a very close relationship with her mother, who was very supportive to her, and that the death of her mother was a very significant loss for the plaintiff.
[130]PCB 22 and following
(vii)The plaintiff’s solicitors sought a medico-legal opinion from Associate Professor Paoletti, consultant psychiatrist. This was provided in a report dated 8 November 2012. He considered that the plaintiff had a probable background dysthymic disorder associated with her allergies, that she suffered a Post-Traumatic Stress Disorder with traffic anxiety and panic attacks relating to the circumstances of her mother’s death and exposure to her dying process (and possibly reinforced by her own subsequent motor vehicle accident) and that she also has a Bereavement Disorder due to the death of her mother, in relation to which she has unresolved grief. He considered that her mother’s accident and death and dying process was a significant contributing factor her to her current illness and the sole factor in relation to the Post-Traumatic Stress Disorder and Bereavement Disorder. He concluded “The role of her own motor vehicle accident is not entirely clear, but her symptoms were well established prior to that.”
I have difficulty with Dr Paoletti’s opinion in relation to the following matters:
·He has a history of the plaintiff being on antidepressant medication prior to her mother’s death relating to her chemical sensitivities but is unaware that the plaintiff had reported suffering Post-Traumatic Stress Disorder to Dr Friedman in 2001, as well as having reported to Dr Wong in 2004 that she had been depressed before and had been on Zoloft for one year. He is also unaware that she had been prescribed similar levels of sleeping medication prior to and subsequent to her mother’s death.
·The history obtained by Dr Paoletti relating to the 2010 transport accident is very different form that given to Dr Epstein in that she claims that “she is probably a little bit worse in cars now”.[131] However, Dr Paoletti was not aware that she did not drive for approximately 18 months following the 2010 transport accident. Further, in oral evidence the plaintiff said that her “driving dysfunctionalability (sic)” was now worse.[132] She told Dr Paoletti that her nightmares and flashbacks are not worse and that she does not really think of her own accident much, whereas she had told Dr Epstein in December 2012 that her nightmares and flashbacks were to both accidents, albeit somewhat worse relating to her mother’s accident.[133] Also, in her oral evidence she mentioned that, following her own accident, she had a heightened sense of survivor guilt[134] (which is also referred to in the affidavits of Mr Bakes and Ms Jones, as previously mentioned).
[131]PCB 63
[132]T 148, 268
[133]PCB 49
[134]T 269
·In relation to the plaintiff’s driving, Dr Paoletti took a history that the plaintiff was “already so affected that she had already moved to the country, because she was not coping with the traffic”.[135] I have already found that she moved to the country in 2008 primarily because of her MCSS.
[135]PCB 63
·Dr Paoletti stated that the plaintiff’s alleged psychological/ psychiatric symptoms relating to her mother’s death were well established prior to the plaintiff’s own transport accident. However, he seems to be unaware that they were not the subject of discussion with, or treatment by, her general practitioners. He seems unaware that the first occasion upon which specific symptoms (as distinct from missing her mother) were mentioned was when she was sent by her solicitors to see Dr Epstein. This was over two years after the 2006 transport accident, on 8 December 2008. He also seems unaware that the first specialist psychological or psychiatric treatment was not until over five years after the 2006 transport accident, namely, in early 2012.
(viii)The plaintiff’s solicitors obtained a further medico-legal opinion from Dr Athey, consultant psychiatrist, on 18 December 2012. He considered that “Mental status examination shows high levels of anxiety and depression, which are very compatible with the diagnosis of major depressive disorder and Post-Traumatic Stress Disorder.”He considered that the anxiety problem fulfilled the criteria for Post-Traumatic Stress Disorder and that “The death of her mother technically would not be the triggering factor, but seeing her mother in a seriously injured condition at The Alfred Hospital may well have precipitated the disease.” He also considered that she had a Major Depressive Disorder as she had five of the nine criteria for a major depressive episode.
I consider there to be deficiencies in the history taken by Dr Athey which impact upon the validity of his opinion. Those matters are as follows:
·He was aware of the plaintiff’s pre-existing history of MCSS and CFS, but stated “These are not recognised psychiatric conditions, and she gave no history suggestive of anxiety and depression prior to her mother’s death.”[136] The lack of history of anxiety or depression is clearly inaccurate if one has regard to references in reports by Dr Friedman to Post-Traumatic Stress Disorder and his referral to psychologist, Ros West, in 2001, Dr Wong’s history that the plaintiff had been depressed before and had been on Zoloft for a year prior to him prescribing it in 2004, and Dr Little’s certificate dated 20 May 2005 that the plaintiff had been on antidepressants prior to her illness of MCSS and CFS. Dr Athey was also unaware of the reference to the plaintiff having required treatment by a psychologist or psychiatrist in the TAC claim form dated 19 March 2008.[137] He also seems to have no knowledge of the “psychological upset” and “anxiety and depression” claimed by the plaintiff to be related to her MCSS impairment.[138]
[136]T 76
[137]DCB 5
[138]DCB 65
·He is unaware that the plaintiff had a history of insomnia requiring medication prescribed at similar levels both before and after her mother’s death.
·Under the heading ”Current Problems”, he noted “There has been a significant degree of family tension over her mother’s death”[139] and also “She does have some resentment of the family over disagreements about her mother’s memories.”[140] As mentioned previously, this is contrary to the plaintiff’s oral evidence and the contents of the plaintiff’s second affidavit that family conflicts have dissipated.
[139]PCB 71
[140]PCB 72
·Dr Athey took a history that “She avoids stimuli associated with the trauma involving moving home to half way across Victoria to avoid reminders.”[141] It is clear that, as early as 16 May 2005, Dr Little reported to Dr Wong that the plaintiff was “considering renting for a time in a home close to the sea, away from a range of everyday chemical pollutants.”[142] On 26 February 2009, Dr Little reported to Dr McKenzie at the Birregurra Clinic that the plaintiff “has made numerous changes to minimise exposure to those chemicals to which she is sensitive. This has culminated in moving to her current home, which has been modified to meet her needs. She is noticeably improved although symptoms are still present to some extent.”[143] As previously mentioned, I am satisfied on the balance of probabilities that the primary reason for the plaintiff moving to a rural area was because of her MCSS, rather than because of the consequences of her mother’s death.
[141]PCB 78
[142]DCB 81
[143]DCB 79
·It would appear from Dr Athey’s report that the only information he had concerning the circumstances of the 2010 transport accident has come from the affidavits of Mr Bakes and Ms Jones. Although he had the plaintiff’s first affidavit, it made no mention of this accident. Paragraph 11 of Mr Bakes’ affidavit states that “she hit a kangaroo whilst driving”[144], and Ms Jones, in paragraph 10 of her affidavit refers to Ms Jones being “very worried about her because she had quit (sic) significant injuries”.[145] Ms Jones then states that the plaintiff “expressed her distress that her mother’s vehicle hardly had any damage on it and Kathleen’s car was rolled, yet her mother died and she didn’t and she had expressed feeling (sic) of guilt about that to me”. Although it is not mentioned by Ms Jones, Dr Athey reports “Ms Mason recovered uneventfully”.[146]
[144]PCB 28
[145]PCB 24
[146]PCB 76
Dr Athey does not appear to appreciate that the 2010 transport accident involved the plaintiff losing control and the car rolling a number of times (five times according to the history given by the plaintiff to Associate Professor Paoletti[147]). His report does not reveal that he had any specific knowledge of the plaintiff’s injuries which were substantial and life threatening and required nine days hospitalisation, with complications following surgery, and a need for narcotic medication for 14 months. He was aware from Mr Bakes’ affidavit that, following this accident “she ceased driving for about a two year period, and when she resumed driving she very rarely did so” and “after the 2010 accident the horror of her mother’s accident became even more apparent and I observe that Kathleen was emotionally distraught and distressed about the fact that she wrote off her car and she lived, whereas her mother had an accident which left her vehicle with virtually no marks on it and she died of the after effects of the injury”.[148]Notwithstanding this, and the aforementioned remarks of Ms Jones to a similar effect, Dr Athey has not explored either the trauma of the 2010 transport accident or the resurfacing “in a very substantial way” of emotional disturbance relating to her mother’s death as described by Mr Bakes[149], other than stating, “In 2010 Ms Mason had a car accident herself which reinforced her fear”. This is clearly an inadequate appraisal of the events of the 2010 transport accident and its aftermath.
[147]PCB 63
[148]PCB 28, paragraph 11
[149]ibid, paragraph 12
(viii)When the plaintiff saw Dr Weissman at the request of the Transport Accident Commission on 16 February 2010, he took a history of sleeping problems, having lost about 15 kilograms in weight immediately after her mother’s death, low energy and motivation and self-esteem, intrusive thoughts about her mother’s accident and what happened in hospital, feelings of guilt and frequent bad dreams about her mother. He considered that “there is possibly a small amount of pre-existing or unrelated psychiatric or psychological impairment”,[150] but she had an abnormal or pathological grief reaction or complicated bereavement which had been complicated by the development of a chronic Major Depressive Disorder of moderate intensity or severity associated with symptoms of traumatisation. The difficulties I have with Dr Weissman’s opinion are as follows:
[150]DCB 33
·Dr Weissman has no knowledge of Dr Friedman’s 2001 history that the plaintiff had suffered Post-Traumatic Stress Disorder and the plaintiff’s subsequent visit to psychologist, Ros West. He does not acknowledge being aware of Dr Wong’s history taken on 4 March 2004 that the plaintiff had been depressed before and had been on Zoloft for one year. He is unaware that the plaintiff in her TAC claim form for the 2006 transport accident acknowledged hat she had previously had psychological or psychiatric treatment. He is also unaware that in her claim for permanent impairment benefit for her MCCS the plaintiff claimed “psychological upset” and “anxiety and depression” as part of that claim. In these circumstances, Dr Weissman’s conclusion of a possible small amount of pre-existing psychiatric or psychological impairment would appear to be an uninformed conclusion.
·Dr Weissman does not appear to recognise that, apart from the contents of Dr Wong’s handwritten letter dated 19 February 2008, the plaintiff had not mentioned psychological or psychiatric sequelae to the 2006 transport accident and her mother’s death to any of her treating general practitioners until September 2011. Nor does he appear to know anything of the plaintiff’s history of many miscarriages or more recent gynaecological problems.
·He does not seem to be aware that the plaintiff suffered insomnia requiring medication at the same level both prior to and after her mother’s death.
·He does not appear to be aware that the increase in the amount of Zoloft prescribed for the plaintiff following her mother’s death has not been continuously maintained. Indeed, when it was increased from 150 milligrams to 200 milligrams per day by Dr McKenzie on 3 September 2009 this appears to have been in the context of her having been advised by Dr Little, who was managing her MCSS and CFS, that there was no more that he could do for her.[151]
[151]DCB 98A
·Dr Weissman is unaware that the plaintiff was involved in the 2010 transport accident, and received substantial injuries for which she was still taking narcotic medication when she saw him.[152] The plaintiff believed that she did tell Dr Weissman of her accident, or thought that it would have been apparent because her arm was in a sling. As I have already stated, I do not consider that the plaintiff was deliberately trying to mislead any of the doctors, including Dr Weissman. She is a vulnerable person with multiple physical and psychological issues and a long documented history of problems with memory and concentration. I consider it likely that her recollection is faulty. However, Dr Weissman’s absence of any history of the 2010 transport accident is a matter which erodes the validity of his opinion. This is particularly so in the light of the plaintiff’s own admission that, following that accident, her problems with driving were a lot worse and she did have some flashbacks relating to her own accident.[153] She stated that, “It’s just the same things go through my mind, between mum dying and then I thought I was going to die”. She said that her accident had increased her feeling of the fragility of life, she was still getting counselling in relation to driving, and that she had ongoing feelings of guilt.[154] She stated that, although there were multiple facets to her feelings of guilt, “most of them arise from her mother’s accident” but “the fact that I’m still alive and she’s dead … is the thing that arises from my accident”.[155]
(ix)Following a visit to her solicitors the plaintiff first mentioned missing her mother to Dr Wong in February 2008, which was the reason for his handwritten letter dated 19 February 2008. However, it was not until early 2012 that she ever sought any professional assistance for her alleged ongoing psychological and psychiatric problems flowing from the 2006 transport accident and her mother’s death. There appears to be some criticism levelled at the Transport Accident Commission for delaying authorisation of such treatment but, it seems to me, that if the plaintiff’s alleged symptoms had been impressed upon her treating general practitioners by her then they would have devised a mental health treatment plan to deal with them at an earlier time. None of her three treating practitioners – Dr Wong, Dr McKenzie or Dr Sarkis did this and it is plain that they did not know of the alleged severity of the plaintiff’s symptoms. Hence, it is not until over five years after the 2006 transport accident that the plaintiff first saw a psychologist or psychiatrist.
Dr McConnell, psychiatrist, saw the plaintiff in January 2012 and in July 2012. In a very brief report he states that he has diagnosed the plaintiff with Post-Traumatic Stress Disorder and chronic Major Depressive Disorder, both at severe levels, and ongoing complicated/unresolved grief, all of which have been caused by the death of her mother in the 2006 transport accident. He states that she continues to be severely disabled by these conditions, as well as associated family discord since the fatal accident.
Mr Andrew Winter, psychologist, first saw the plaintiff on 22 March 2012 and in his report, dated 27 November 2011, (sic) states that he had been seeing her for support and limited therapy about once every three or four weeks since March 2012. He opines that the plaintiff clearly meets the DSM criteria for Post-Traumatic Stress Disorder at severe levels, as well as suffering severe levels of anxiety and depression which fluctuates from moderate to severe. He notes briefly some background matters involving a back injury, an abusive partner during the 1990s, caring for her dying father, and increasing ill-health relating to chemical sensitivities and Chronic Fatigue Syndrome. He considers that all of these matters may have led the plaintiff to have a greater vulnerability to the impact of her mother’s death, but her close relationship with her mother, the time she spent in hospital with her after the accident, her own role in turning off the life support and the conflict with other family members are the primary content of her subsequent nightmares, flashbacks and ruminations which are essential to the diagnosis of Post-Traumatic Stress Disorder, which he attributes primarily to the death of the plaintiff’s mother following the 2006 transport accident. The difficulty with the reports of both Dr McConnell and Mr Winter are as follows:
· Neither have a history of the plaintiff apparently suffering Post-Traumatic Stress Disorder in 2001 and being referred to a psychologist, or her history of depression requiring anti-depressants prior in time to being diagnosed with MCCS and CFS, nor are they aware of her long history of insomnia with medication at approximately the same level prior to and after her mother’s death. Further, they are unaware that the plaintiff has attributed psychological distress and depression and anxiety to her MCSS claim[156] and acknowledged that she had psychiatric or psychological treatment prior to the 2006 transport accident.[157]
· Neither practitioner appears to be aware of her history of many miscarriages and gynaecological problems.
· Neither practitioner has any history relating to the 2010 transport accident, the very traumatic circumstances of its occurrence with her vehicle having rolled several times, her unconsciousness, and substantial injuries requiring narcotic medication for some 14 months. In particular, they appear to be unaware of the plaintiff’s problems with driving following this accident and the increase in flashbacks, particularly concerning her own accident, as well as the enhanced difficulty with survivor’s guilt. Moreover, both practitioners appear to place some emphasis on the conflict the plaintiff had with other family members over the decision to turn off her mother’s life support. Mr Winter describes this as being part of the primary content of her subsequent nightmares, flashbacks and ruminations, and Dr McConnell describes the family discord as continuing since the fatal accident. This emphasis is contrary to the plaintiff’s own evidence that “over the years since those difficulties have gradually dissipated and we now enjoy good sibling relations”.[158]
[152]DCB 48A-48H
[153]T 148
[154]T 268
[155]T 269
[156]DCB 65
[157]DCB 5, 18 and 24
[158]PCB 21C, paragraph 6 of the plaintiff’s second affidavit
Conclusion
64 It will be evident from the above analysis that I feel hampered in deciding this matter by the inadequate material placed before me concerning the plaintiff’s psychological/psychiatric condition and treatment prior to the commencement of Dr Wong’s handwritten clinical notes on 4 March 2004. The plaintiff clearly has a poor recollection of these matters, for which I do not criticise her, as she has been subjected to many physical and emotional traumas throughout her life. These apparently include:
· suffering migraine headaches of sufficient severity to cause her to cease work towards the end of 1996 and go on sickness benefits[159];
[159]PCB 12, paragraph 11 of the plaintiff’s first affidavit
· nursing her father in the second-half of 1998 prior to his death on 22 December 1998 due to cancer[160];
[160]PCB 12-13, paragraphs 12 and 13 of plaintiff’s first affidavit
· having to deal with the termination of life support for her father[161];
[161]DCB 30, history given to Dr Weissman on 16 February 2010
· enduring an abusive relationship with a drug-using partner for some years during the 1990s (until shortly after her father’s death). This person apparently became threatening and violent and continued to harass her for 12 months after the relationship ended to such an extent that her brother, who was a police officer, was required to provide her with some protection[162];
[162]PCB 30-31, history given to Dr Epstein on 5 December 2008
· suffering deteriorating health from 2001 onwards which resulted in her losing about 20 kilograms in weight and experiencing fevers. This resulted in her ceasing work to go on sickness benefits for about 12 months in March 2002[163];
[163]PCB 31, history given to Dr Epstein on 5 December 2008
· suffering ongoing nausea, vomiting, progressive right upper quadrant pain the subject of investigations by Dr Friedman, who, on 28 August 2001, reported to Dr Wong, “Kathy continues to complain of unintentional weight loss which I believe is probably secondary to anorexia and food aversion”.[164] It is unclear whether this weight loss was subsequently attributed to the MCSS;
[164]DCB 126
· a history, as recorded by Dr Friedman on 15 October 2001, that she seemed quite moody, tearful and depressed and that she had told him that she had a previous history of Post-Traumatic Stress Disorder.[165] This presentation resulted in a referral to the psychologist, Ros West[166], whom she saw on at least one occasion in or about November 2001[167];
[165]DCB 124
[166]DCB 122 and 124
[167]DCB 121
· experiencing seven miscarriages between approximately 2003 and 2005, each of which required her to undergo a dilatation and curettage procedure. She also underwent three hysteroscopies[168];
· experiencing ongoing distressing symptoms of nausea and vomiting, abdominal pain, musculoskeletal pains, headaches and lethargy between 2001 and 2005 culminating in her being diagnosed with MCSS and CFS by Dr Little in 2005. This necessitated ongoing prescriptions of Zoloft, Stemitil and Panadeine Forte.[169] It also resulted in her ceasing work in 2005, at the age of 39 years, and she has been in receipt of a disability pension since that time[170];
· suffering from depression prior to 4 March 2004, requiring Zoloft for one year, and presenting to Dr Wong on that day feeling sad, teary and having no energy, which required a renewed prescription of Zoloft. (A similar history of anti-depressant medication, Zoloft, prior to MCSS and CFS was apparently given to Dr Little[171]).
[168]PCB 31, history given to Dr Epstein
[169]DCB 79-83, Dr Little’s reports
[170]PCB 14, paragraph 20 of the plaintiff’s first affidavit
[171]DCB 94, certificate dated 20 May 2005
65 The lack of clarity concerning the plaintiff’s mental health status is compounded by the claim form she completed for an impairment benefit for the MCSS alleging “psychological upset” and “anxiety and depression” as part of that claim. Insomnia is also included as part of the impairment relating to that condition. This form was signed by the plaintiff as recently as 29 March 2011.[172] Under cross-examination, the plaintiff was unable to give an explanation for these matters, except that her solicitor had prepared the form.
[172]DCB 65-66
66 Unfortunately, there is no analysis by a medical practitioner or psychologist, who had full cognisance of all of these matters of history, to assist the Court to determine with clarity the state of the plaintiff’s psychological or psychiatric functioning prior to her mother’s death. This makes the assessment of the impact of the 2006 transport accident and the plaintiff’s mother’s death upon her psychological state an extremely difficult exercise. That difficulty is compounded by the following factors which have occurred subsequent to the 2006 transport accident and the plaintiff’s mother’s death:
(a)The plaintiff suffered constant menstrual bleeding in early 2007 which resulted in her being given a hormone implant. She suffered a further miscarriage and underwent another dilatation and curettage procedure in early 2007.[173]
[173]PCB 33, history given to Dr Epstein
(b)In 2008 the plaintiff was found to have a pre-cancerous ovarian cyst, which she described as “a big health scare”. This necessitated the plaintiff undergoing surgery by way of tubal ligation and also to have her ovaries removed. The plaintiff stated that the surgery took place at Angliss Hospital and her sister helped look after her when she came out of hospital.[174]
(c)Over 2009 the plaintiff suffered recurrent gynaecological problems. These involved bleeding, abdominal discomfort and a small lump in the left breast. In May 2010 she was found to have a large cystic structure within the uterine cavity for which she was referred to a gynaecologist, Dr Michael Bardsley in Ballarat on 27 March 2009.[175]
(d)Throughout 2009 the plaintiff experienced ongoing pain and aching associated with her MCSS, particularly in her hands and forearm. This was worse at night and associated with ongoing problems of insomnia. In September 2009, Dr Sarkis said that Dr McKenzie had recorded that she was very down after having recently been advised by Dr Little that there was little more he could do for her in relation to treatment of her chemical sensitivities. In this context her prescription of Zoloft was increased from 150 milligrams per day to 200 milligrams per day.
(e)On 2 January 2010 the plaintiff had her own serious transport accident. I have already referred to the very frightening and life threatening nature of the accident itself and the substantial injuries arising from it. In particular, the plaintiff suffered the onset of nightmares and flashbacks concerning her own car accident and a resurfacing or exacerbation of nightmares and flashbacks referrable to the 2006 transport accident, as well as a fear of driving and survivor guilt. The plaintiff’s injuries received in that accident required powerful narcotic analgesics for approximately 14 months afterwards, in addition to the Panadeine Forte, Maxalon and Zoloft which she had been prescribed in relation to her MCSS and CFS. She did not drive a car for 18 months and her fear of driving was worse after the 2010 transport accident.
(f)In January 2011 the plaintiff developed hyperprolactinemia which resulted in her right breast literally “squirting milk” uncontrollably. Dr Sarkis considered that she may have a cerebral or pituitary tumour and required urgent treatment. In fact, a CT scan within two or three days showed that she did not have a tumour, but she, again, required a referral to a gynaecologist in order to treat this condition.[176]
(g)In July 2011 a friend’s sister was killed in a car accident which, according to the history given by the plaintiff to Dr Epstein “made her own distress even worse”.[177]
(h)In late 2011, according to Dr Sarkis’ oral evidence, the plaintiff had a lot of other medical problems, including infections and major problems with changes in different medications, in particular her anti-depressant medication.[178]
(i)In February 2012, according to Dr Sarkis’ oral evidence, the plaintiff began to experience new gynaecological issues with the onset of menopausal symptoms, particularly hot flushes.[179]
(j)In May 2012 one of the plaintiff’s brothers was hospitalised at the Alfred Hospital and placed on life support. Although he recovered, the plaintiff described the situation as being “much too close to what had happened with her mother and said she found it very distressing”.[180]
[174]T 107
[175]T 215-217, Dr Sarkis’ evidence
[176]T 228-299
[177]PCB 41
[178]T 233
[179]T 232
[180]PCB 48, history given to Dr Epstein
67 One could not help but have compassion for the plaintiff on the loss of her mother following the 2006 transport accident. The evidence indicates that she had a particularly close relationship with her and seems to have been quite dependent upon her for support and assistance, particularly with transport, because of her problems arising from her conditions of MCSS and CFS. It is entirely understandable that the death of her mother would have been an enormous blow to her. However, the lack of clarification of the plaintiff’s mental health issues which have surfaced in the material before me relating to the period prior to her mother’s death, and the complicating factors to which I have referred following her mother’s death, cause me to conclude that I cannot be satisfied on the balance of probabilities as to what psychological or psychiatric symptoms flow from the 2006 transport accident and her mother’s death and to what extent they contribute to her current mental state.
68 The plaintiff’s current mental state may well be severe and, as I have said, it is possible that, currently, she does suffer some symptoms flowing from the 2006 accident and her mother’s death. She was psychologically vulnerable before her mother’s death and she is likely to have been rendered more vulnerable after it. However, the plaintiff bears the onus of proving that the 2006 transport accident is a cause of a severe long-term mental or severe long-term behavioural disturbance or disorder. The plaintiff appears to have an entrenched belief that she has a severely impaired psychological or psychiatric state due to the events surrounding the 2006 transport accident and her mother’s subsequent death. Although that belief may well be a genuine one, I find that the evidence cannot satisfy me on the balance of probabilities on the issue of causation. Accordingly, I find that the plaintiff has not discharged the onus of proof and her application must fail.
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