Mason v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0164

KATHLEEN MASON	Applicant
	v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	WARREN CJ, ASHLEY and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2014
DATE OF JUDGMENT:	24 October 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 267
JUDGMENT APPEALED FROM:	Mason v Transport Accident Commission [2013] VCC 1461 (Judge Hogan)

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ACCIDENT COMPENSATION — Application for leave to appeal — Transport Accident Act 1986, s 93(4)(d) — ‘Serious injury’ — Whether pre-existing psychiatric or psychological injury — Whether causation established — Sufficiency of trial judge’s reasons — Applicant did not provide full history to psychiatric and psychological experts— Reasons sufficiently revealed applicant’s claim failed because trial judge not satisfied of reliability of applicant’s account of symptoms to psychiatric and psychological experts — Trial judge correct in finding causation not established on the evidence — Application for leave granted — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D B Ingram with Mr E Makowski	Slater & Gordon Ltd
For the Respondent	Mr J Ruskin QC with Ms K E Foley	Wisewould Mahony

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of both Ashley and Whelan JJA. I agree with their Honours that the appeal should be dismissed. Both of their Honours found that the trial judge did not err in her assessment of the applicant’s medical history and causes of her various injuries and conditions. While there is some divergence between their Honours regarding the relevance of the applicant’s reporting of Post-Traumatic Stress Disorder (PTSD) it is unnecessary for me to decide this point. Either way the applicant cannot succeed. I would make orders as proposed by Whelan JA.

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Whelan JA. They explain the way in which the judge below approached the matter, and, in doing so, they discuss much of the evidence which was before her Honour. I am thus able to express my conclusions without any lengthy recapitulation of the evidence.

The issues for determination

What was under challenge in this Court was the order dismissing the application by Ms Mason (conveniently, ‘the applicant’) for leave to bring a proceeding for damages pursuant to s 93 of the Transport Accident Act1986. There were two parts to the attack.

First, the applicant contended that the trial judge had erred in failing to be satisfied that the applicant had established that any psychiatric injury from which she was suffering at time of hearing had as a cause the events of, and associated with, the road traffic accident involving her mother in 2006 and her mother’s death thereafter (conveniently, ‘the 2006 events’). As explained in Phelan v TAC,[1] in a

passage cited by Whelan JA, that raises an issue for determination by this Court by way of rehearing. This Court must give the judgment which, in its opinion, ought to have been given at first instance. If the Court concludes, by reason of what it holds to have been a wrong decision on a question of fact, that the decision appealed from was wrong, the decision will not be saved because it could be said that the wrong decision was reasonably open. This Court’s conclusion, based upon its own consideration of the evidence, that the judge made a wrong decision on a question of fact, would demonstrate error. Although the trial judge had the advantage of seeing and hearing the witnesses, which imposes a natural limitation on this Court’s ability to review factual findings, it may nonetheless reach a conclusion contrary to that of the trial judge, even in the case of a finding apparently dependent upon the credibility of witnesses — for example, where it concludes that the decision at trial was ‘glaringly improbable’ or ‘contrary to compelling inferences’.[2]

[1][2013] VSCA 306.

[2]Fox v Percy (2003) 214 CLR 118, 128 [28]–[29] (Gleeson CJ, Gummow and Kirby JJ).

Second, the applicant contended that the reasons given by the judge for dismissing her application were insufficient. Reasons must sufficiently disclose a path of reasoning which culminates in the decision which is reflected by the impugned order. It has repeatedly been said that, in considering the sufficiency of reasons, ‘[p]erfection is not required’.[3] An appeal court should not examine a judge’s reasons too critically, seeking, as it were, to discern a want of explanation. ‘What will be sufficient in a particular case will be influenced by the ambit of dispute at trial’.[4] But what is necessary is that an examination of the reasons should enable the losing party to know why he or she lost.[5]
[3]Dressing v Porter [2006] VSCA 215 [26] (Ashley JA).
[4]Ibid.
[5]Paraphrasing Dressing v Porter [2006] VSCA 215 [26] (Ashley JA). See also Hunter v Transport Accident Commission [2005] VSCA 1 [21]–[22] (Nettle JA) and Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [38] (Ashley JA).

The applicant’s claim

The applicant relied below upon a mental or behavioural disturbance or disorder constituted by (1) post-traumatic stress disorder (‘PTSD’) caused by the 2006 events, and (2) a major depressive disorder which, at worst from her standpoint, was constituted by the aggravation, by reason of those events, of a pre-existing depressive disorder.

The depressive disorder

In my opinion, the judge sufficiently explained why she was not satisfied, whatever the extent of the depressive disorder from which the applicant suffered at time of hearing, that it was caused or aggravated by the 2006 events. I consider also that the totality of the evidence leads to that conclusion. In combination —

(1) the absence of a relevant history given to any general practitioner for a lengthy period after the happening of the 2006 events;

(2) the fact that the applicant was treated with anti-depressants before and after those events; and

(3) the multiple traumas which the applicant encountered in her life — all of which had the obvious potential to play a part in any depressive illness from which she suffered at time of hearing,

make it near impossible for a fact-finder to be satisfied, on consideration of all the evidence, that the applicant had made out her claim that the 2006 events had caused her serious injury constituted by a major depressive illness or the aggravation thereof.

PTSD

Then one comes to the claim in respect of PTSD. It is necessary at the outset to recognise that the judge needed to determine two different issues. The first was whether the applicant’s evidence describing the presence of any symptoms which could sustain a diagnosis of PTSD was reliable. The second was whether, if such a diagnosis was available, and was made, the PTSD was caused by the 2006 events.[6]
[6]Of course, if those two issues had been resolved favourably to the applicant, the question whether such injury constituted serious injury would have fallen for consideration.

The judge’s failure to be satisfied that the 2006 events were ‘a cause of an injury by way of an actual mental or behavioural disturbance’[7] is compatible with the applicant failing upon either the first or the second of those issues. So a question arises as to the point at which, as the judge reasoned, the applicant failed. A supposed error in fact-finding requires identification of the fact which was erroneously found. If a judge’s reasons are opaque as to the facts found, they are unlikely to be sufficient.
[7]Mason v Transport Accident Commission [2013] VCC 1461 [63] (‘Reasons’).

Resolution

Not without considerable hesitation, I have come to the conclusion that —

(1) the judge’s reasons disclose that the applicant failed because her Honour was not satisfied of the reliability of the applicant’s account of symptoms which could have supported a diagnosis of PTSD; and

(2) such a finding accords with the evidence.

I therefore agree with Whelan JA that the applicant should have leave to appeal, but that the appeal should be dismissed.

The symptoms which could have supported a diagnosis of PTSD were described by the applicant in her affidavit sworn 15 December 2010 as follows:

36.Prior to my mother’s accident I had no problems or hesitation driving. Since the transport accident I have had difficulty driving and I am nervous and panic especially waiting to do a right hand turn. I now avoid driving where possible and I avoid driving on Scoresby Road. I often have flashbacks when driving. I am frightened driving on Scoresby Road, particularly in the vicinity of where the accident occurred.
37.The trauma of the transport accident caused me to move house because I was constantly reminded of mum and the accident. The house was sold in December 2007. However, moving did not really help because I still have flashbacks and nightmares of mum’s appearance in hospital and her wrecked car almost every day. I picture mum lying in a hospital bed, especially at night. My siblings did not want to keep the house and because I could not stay there I had to move out and stay with friends. It was my home.
38.Since my mum’s accident I have trouble sleeping, and take Temazepam each night. It was first prescribed by my general practitioner at the time, Dr Sze Wong. I have tried different types of sleeping tablets but they have not agreed with me, such as Stilnox and Alodorm. I also regularly have flashbacks and nightmares of the [sic] mum’s state after the accident and the appearance of her car. I can’t stop the images of her after the accident coming into my head. I wake up several times a night, and each time wake up extremely anxious, panicking and upset often crying.

But compare with paragraph 37, extracted above —
42.we live in Gerangamete. One reason I moved to a rural area was to get away from a lot of bad memories and reminders of how life had been. …

In her later affidavit, sworn 18 February 2013, the plaintiff deposed as follows:

9.With time I did realise that there had been a number of symptoms related to [the 2010] accident. I did have some recurrent thought and flashbacks relating to that accident. I do say however that the currency of those thoughts and flashbacks pales in significance to those which I had experienced over many years prior to that time and which I continue to experience subsequent to that time which related to the events of my mother’s death. Another thing which I have noted has been that I was a cautious driver after my mother’s accident and have been even more cautious since my own accident and for about 18 months or so thereafter I was reluctant to drive at all although more recently I have been driving with greater frequency and have for medical appointments driven down to Melbourne on my own. Nonetheless, I do have a fear of cars and the damage that cars can do to people and that stems mainly from my mother’s injuries and I do avoid driving as much as I can and generally limit the distances over which I do drive.

In deciding whether or not to accept that account, it was very largely irrelevant whether or not the applicant told Dr Friedman in 2001 that she had a previous history of PTSD. At the end of the applicant’s evidence, according to the judge’s reasons, the applicant was really saying ‘that she had no memory of the diagnosis’.[8] On the other hand, Dr Friedman’s report to Dr Wong dated 15 October 2001 recounted that the applicant had told him of ‘a previous history of post-traumatic stress disorder’. It may be inferred that the applicant would not have given the doctor such a history without then being aware that a pertinent diagnosis had been made.
[8]Ibid n 93.

There was thus a possible unreliability in the applicant’s account of events which had occurred in 2001 and earlier. But one thing which a report by the applicant to Dr Friedman that she had a previous history of PTSD (or even the fact — if it was the fact — that she had suffered PTSD before 2001) could not do was answer the question whether the applicant suffered onset of the symptoms of which she deposed following the 2006 events. That is so because PTSD necessarily relates to a particular traumatic event. Symptoms centre upon that traumatic event. If the applicant had suffered PTSD at an earlier time, it was PTSD unrelated to the trauma which the applicant sought to implicate in her present application. Logically, any earlier PTSD could not have produced the symptoms which the applicant described in her affidavits, and which Dr Epstein summarised in his report of 3 December 2008 as follows:

Her Post Traumatic Stress Disorder has been characterised by recurrent intrusive thoughts about the accident and her mother’s appearance together with nightmares and flashbacks to events surrounding the accident. She has become more concerned about her own safety and security and is hypervigilant and feels a sense of bleakness.

What, then, did the judge relevantly say in her reasons?

Her Honour concluded that the applicant was ‘mentally unwell’ and that this ‘impacted upon her capacity to give accurate and reliable evidence’.[9] In that connection, her Honour observed that there were conflicts in the evidence of the applicant and the treating general practitioners. Her Honour was unable to reconcile the applicant’s account of having discussed ‘her feelings regarding the loss of her mother with Dr Wong’ with that doctor’s evidence.[10] She found it ‘difficult to understand’ how Drs McKenzie and Sarkis could have repeatedly failed to note, before late 2011, the applicant’s ongoing psychological symptoms attributable to the 2006 events if the applicant had given any account of such symptoms — particularly if, as she claimed, she had been upset and not coping on most visits to those doctors before the first relevant note in their records.
[9]Ibid [63].
[10]Ibid [63](i).

What her Honour there said explained her difficulty in accepting aspects of the applicant’s account generally. It did not, however, directly address the question of the reliability or otherwise of the applicant’s description of the onset of symptoms relevant to a diagnosis of PTSD associated with the 2006 events.

But then her Honour referred to a letter dated 19 February 2008 written by Dr Wong. She said this:

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”. 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 [sic] of the 2006 transport accident, or having significant problems with memory and concentration.[11]

[11]Ibid [63](iii) (citations omitted).

It appears to me that the judge was saying, in substance, that she did not accept the reliability of the history given to Dr Epstein; and, by extension, the reliability of the applicant’s account of her symptoms in her affidavits in the passages cited at [11]–[12] above.

The judge then gave reasons why she considered the opinions of the various specialist psychiatrists to be adversely affected by their not having been given a full history. Some matters which her Honour mentioned did not bear upon the reliability or otherwise of the applicant’s account of symptoms potentially referable to a diagnosis of PTSD attributable to the 2006 events. Particularly, her Honour noted that none of Dr Epstein, Associate Professor Paoletti, Dr Athey, Dr Weissman, Dr McConnell and Mr Winter was aware that the applicant, in 2001, had reported a prior history of PTSD. With respect to the reliability or otherwise of the applicant’s description of symptoms consistent with PTSD and potentially attributable to the 2006 events, for reasons already given, that was a red herring.

Of relevance, however, was the judge’s analysis of certain inaccuracies in the histories given to the various examining psychiatrists which were revealed either by the applicant’s own evidence or by contemporaneous medical records. Those inaccuracies included (1) the pattern of the applicant’s insomnia before the 2006 traffic accident and (2) the reason why the applicant moved to country Victoria to live. The judge also noted variant histories given by the applicant to psychiatrists and other witnesses with respect to (1) the extent of damage to her mother’s motor vehicle in the 2006 accident and (2) the impact of her 2010 motor vehicle accident upon the frequency and severity of her nightmares and flashbacks.

Those parts of her Honour’s reasons have dual significance. First, they bear upon the question whether the reasons sufficiently reveal that her Honour did not accept the reliability of the applicant’s account with respect to the symptoms which she recounted in her affidavits bearing upon the diagnosis of PTSD, and the history which she gave to specialist psychiatrists such as Dr Epstein. Second, they point up difficulties in making findings favourable to the applicant upon a re-hearing in the event that the judge’s reasons do sufficiently reveal the point of fact-finding at which the applicant failed.

In my opinion, there were definitely disquieting features about the way in which the judge dealt with the applicant’s claim that she suffered from PTSD referable to the 2006 events. First, nowhere did her Honour in express terms decline to accept the applicant’s account of the presence of such symptoms from a time proximate to that incident. Second, the judge appears to have treated the applicant’s report (as noted by Dr Friedman in 2001) that she had previously suffered PTSD as being more than a matter of a faulty history which might bear upon credibility. Whelan JA has accepted the submission for the respondent that it was the psychiatrists’ ignorance of what had been reported which the judge saw as relevant, not ignorance of a proved diagnosis. Even if that conclusion was correct, for the reasons discussed at [14] above, in substance it would have led the judge nowhere.

It is very evident that the judge was sympathetic to the applicant’s many difficulties. Her Honour said that she did not consider that the plaintiff had endeavoured to deliberately mislead doctors or the Court. She was a vulnerable person and, in the judge’s view, had suffered a number of afflictions both physical and mental, which might well have contributed to her current state of mental ill-health. So also, her Honour said that —

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 … It is entirely understandable that the death of her mother would have been an enormous blow to her.[12]

[12]Ibid [67].

In the event, as it appears to me, her Honour was not as forthright as she might have been in concluding that she was unable to accept the applicant’s account of the symptoms which are critical for present purposes. But obliquely in her reasons, and sufficiently in my judgment, her Honour did not accept the applicant’s account, this undermining the history given by the applicant to the doctors upon which they based their diagnosis of PTSD. That was enough to doom the claim to failure.

I am not persuaded that the applicant’s account of symptoms referable to a diagnosis of PTSD potentially attributable to the 2006 events should be accepted. I accept that specialist psychiatrists, by direct enquiry, would be more likely than a general practitioner to have elicited an account of pertinent symptoms from the applicant. I consider it significant also that Dr Epstein obtained a history of symptoms of PTSD before the applicant first consulted Drs McKenzie and Sarkis. His doing so blunts the significance that might otherwise attach to those doctors having obtained no relevant history early in the piece. On the other hand —

(1) the applicant appears to have given no history to Dr Wong — even sparse — of relevant difficulties;

(2) the applicant’s reported horror as to the circumstances of the 2006 traffic accident was on shaky ground in that she gave very different accounts to different people of the extent of damage to her mother’s vehicle;

(3) the applicant gave divergent accounts as to the extent of disputation with her siblings arising out of her mother’s injuries and the decision to turn off life support;

(4) the judge found, and I agree with the finding, that the applicant did not move to country Victoria as an avoidance mechanism;

(5) the judge found, and I agree, that by reason of multiple traumas in her life, and a multiplicity of physical ailments, the applicant suffered mental illness which provided a likely explanation for a good deal of the unreliability in her evidence and in histories which she provided to psychiatrists; and

(6) the opinions of the psychiatrists were impugned because each of them assumed the reliability of a history which in more than one respect should not be accepted as having been reliable.[13]

[13]Whether by misstatement, by omission, or by a combination of both.

There is one matter to add. If I had concluded that the applicant did suffer PTSD referable to the 2006 events, I have great doubt that such injury should have been held to be serious in its consequences. The evidence of the applicant and the entirety of the medical material shows that any PTSD from which the applicant may suffer is but a small part of her multiple physical and psychiatric problems.

Acknowledging that whether injury is serious in its consequences must be considered by reference to the particular individual, I nonetheless have great doubt whether the symptoms of PTSD described by the applicant and the psychiatrists could meet the bar which is set in the case of a psychiatric disturbance or disorder.

WHELAN JA:

On 7 October 2006 Kathleen Mason’s mother suffered serious injuries in a motor vehicle accident. She died as a result of those injuries in hospital on 13 October 2006 when life support systems were removed. Ms Mason did not witness the accident but she learned of it not long after it happened. She saw her injured mother in hospital and was involved, with her siblings, in the decision to withdraw life support. Ms Mason claims to have suffered a severe long term mental disorder as a result of this accident, variously diagnosed as post-traumatic stress disorder, major oppressive disorder and bereavement disorder.[14]
[14]These expressions are derived from the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. In this proceeding reference was invariably made to the fourth edition, referred to as ‘DSM-IV’. Major depressive disorder is described in DSM-IV at pp 369–76. Post-traumatic stress disorder is described at pp 463–8. Bereavement is not described as a mental disorder but rather as a condition that may be the focus of clinical attention at pp 740–1 (and see p 5 description of the use of code ‘v’).

Pursuant to s 93 of the Transport Accident Act 1986 (the ‘Act’), Ms Mason cannot bring proceedings to recover damages in respect of the injury which she claims she has suffered unless given leave to bring the proceedings by a court under s 93(4)(d). Pursuant to s 93(6), a court must not give leave unless satisfied the injury is a serious injury. For present purposes, pursuant to s 93(17) of the Act, ‘serious injury’ means a ‘severe long-term mental or severe long-term behavioural disturbance or disorder’.

Ms Mason sought leave from the County Court. A judge of the County Court heard that application over a number of days and on 23 October 2013 delivered reasons for judgment.[15] The application was dismissed.

[15]Mason v Transport Accident Commission [2013] VCC 1461 (‘Reasons’).

The application was dismissed because the judge was not satisfied on the balance of probabilities that the 2006 accident and the death of the applicant’s mother was a cause of an injury by way of a mental or behavioural disturbance or disorder.[16] In other words, the applicant failed to establish causation.
[16]Reasons [63].

The applicant, Ms Mason, now applies for leave to appeal from the order dismissing her application for leave. A proposed notice of appeal dated 6 November 2013 has been filed on her behalf. The hearing of the application for leave addressed all of the matters upon which the applicant would rely in an appeal. The hearing of the leave application was conducted on the basis that if leave were granted this Court should then decide the appeal instanter.

In order to obtain leave to appeal an applicant must satisfy the Court that the decision in question is attended by sufficient doubt to warrant its being reconsidered and that substantial injustice would result if leave were refused supposing the decision to be wrong.[17]
[17]Niemann v Electronic Industries Ltd [1978] VR 431, 441–2; Phelan v Transcript Accident Commission [2013] VSCA 306 [2].

As to the substantive appeal if leave is granted, in this case the matter in issue is not the ultimate determination of whether an injury is or is not a ‘serious injury’ as defined. An appeal on that issue is governed by the principles set out by this Court in Mobilio v Balliotis (‘Mobilio’), whereby, in the absence of specific error, the judgment at trial will be interfered with only if it is shown to be plainly wrong or wholly erroneous.[18] In this case the issue is whether the trial judge’s finding on causation was erroneous.
[18]Mobilio v Balliotis [1998] 3 VR 833. Brooking JA considered that this was because the decision is a discretionary judgment. Ormiston JA preferred to describe the decision as ‘akin’ to a discretionary judgment. Phillips JA based his conclusion resulting in the same outcome on the terms of the statutory provision. Charles JA agreed with Phillips JA. Winneke P did not decide this issue.

In Phelan v Transport Accident Commission, after referring to the test for leave to appeal, this Court described the applicable principles as follows:

In considering the application of that test, a number of matters need to be borne in mind. First, the applicant bore the burden of persuasion below, and she failed to discharge it. Second, her application required findings of fact to be made. In considering whether it has been demonstrated that a finding was erroneous (a matter which can be relevant to ‘specific error’ – see below), the ordinary appellate process is engaged. It is informed, where applicable, by consideration of credit in accordance with Fox v Percy. Of course, the question whether there was an error in fact finding is to be determined by consideration of all the pertinent evidence, not just medical opinion evidence. Third, once the facts were found, the judge was required to decide whether the applicant had established that her injury was, in the statutory context, ‘serious injury’. It is that ultimate finding which must be displaced if the applicant is to succeed in this Court. Fourth, the ultimate finding was one which involved elements of ‘fact, degree and value judgment’. A decision that injury was or was not serious injury will only be set aside for specific error, or if it was plainly wrong or wholly erroneous. Fifth, specific error may lie in an erroneous finding of fact, or in a wrong expression of legal principle. Sixth, not every fact-finding error, or misstatement or misapplication of legal principle, will result in grant of leave to appeal and the success of the appeal. An error, on analysis, may not have been
material to the decision ultimately arrived at by the judge or to have vitiated that decision in the sense that the outcome of the case might have been different if the error had not occurred.[19]

[19][2013] VSCA 306 [3] (citations omitted).

The trial judge’s reasons are thorough and very detailed. I will not review all of the factual matters which were canvassed in the material before the trial judge or with which the trial judge dealt in her judgment. It is, however, necessary to review relevant aspects of that factual material.

Review of relevant factual material

The applicant has been subjected to many physical and emotional traumas throughout her life, both before and after the death of her mother as a result of the accident in 2006. These physical and emotional traumas include the following:[20]
[20]The trial judge dealt with these matters in her reasons for judgment and summarised them: Reasons [64]–[66].

·Towards the end of 1996 she suffered migraine headaches of sufficient severity to cause her to cease work and to go on sickness benefits.
·In the second half of 1998 she assisted in nursing her father who was dying of cancer.
·She was involved in the decision to terminate life support for her father who died on 22 December 1998.
·She was in an abusive relationship with a drug using partner for some years during the 1990s, which involved her being threatened and subjected to violence during the relationship and being harassed for approximately 12 months after the relationship ended.
·From 2001 she suffered ill health as a result of which she lost 20 kg in weight and ceased work to go on sickness benefits for about 12 months in March 2002.
·She suffered ongoing nausea, vomiting and other symptoms during the early 2000s for which she received medical treatment from a specialist gastroenterologist, Dr Wayne Friedman, as well as from her general practitioner at that time, Dr Wong.
·In 2001 she presented to Dr Friedman in a moody, tearful and depressed state and he recorded her as having told him she had a previous history of post-traumatic stress disorder. He referred her to a psychologist, Roslyn J West.
·Between approximately 2003 and 2005 she experienced seven miscarriages requiring a number of gynaecological procedures.
·She had been prescribed an anti-depressant by Dr Wong after presenting with symptoms of depression in March 2004.
·In 2005 a specialist physician, Dr Colin Little, diagnosed her as suffering from multiple chemical sensitivity syndrome (referred to as MCSS) and chronic fatigue syndrome.
·As a consequence of her MCSS and her chronic fatigue syndrome she was prescribed anti-depressants.
·In 2005, at the age of 39 years, she ceased work. She has been in receipt of a disability pension and has not worked since that time.
·According to a worker’s compensation form she submitted in 2011 she suffered psychological upset, anxiety and depression, and insomnia as a result of her MCSS.
·Her mother was killed in the accident in 2006.
·She suffered gynaecological problems in 2007 and had another miscarriage.
·In 2008 she had what she described as a ‘big health scare’ when a pre-cancerous ovarian cyst was discovered as a result of which she underwent an operation.
·In 2009 she suffered further gynaecological problems requiring gynaecological treatment.
·She continued to suffer symptoms associated with her MCSS throughout 2009 for which she was treated by her then general practitioner, Dr Sarkis.
·On 2 January 2010 the applicant was involved in a serious motor vehicle accident and suffered significant injuries as a result.
·In January 2011 the applicant suffered a condition known as hyperprolactinemia (uncontrolled expression of milk from the breast) raising concerns as to the possibility of a tumour, which were eliminated after testing, but which again required the applicant to undergo gynaecological treatment.
·In July 2011 the sister of a friend was killed in a car accident.
·In late 2011 the applicant suffered from a number of medical conditions requiring treatment by her then general practitioner Dr Sarkis.
·In February 2012 the applicant experienced further gynaecological problems.
·In May 2012 one of the applicant’s brothers was hospitalised and placed on life support. He recovered.

In her first affidavit in support of her application sworn 15 December 2010, the applicant described her relationship with her mother and the circumstances of her death. The applicant and her mother were very close. The two women lived together and had done so for some years prior to her mother’s death. The applicant was heavily reliant upon her mother to assist her in dealing with her various medical conditions. As indicated, on the day of the accident she became aware that her mother had been involved in an accident at a relatively early point in time. She saw photographs of the accident scene and, according to her affidavit, saw the condition of her mother’s car. When she visited her mother in hospital she found her to be in a state which shocked and distressed her. Thereafter, in accordance with what the applicant says were her mother’s wishes, she supported the decision to withdraw life support. This caused conflict between her and her siblings.

The conditions from which the applicant has suffered over the years, the medical treatment she has received, and the diagnoses made, were the subject of a number of medical reports and records tendered before the trial judge. Oral evidence was given by the applicant’s two principal general practitioners, Dr Wong and Dr Sarkis.

Dr Wong is a general practitioner who was practicing at the relevant time in Boronia. He was the applicant’s treating general practitioner between 2000 and 2008.

In 2000 the significant issue for which Dr Wong was treating the applicant was migraine headaches. In 2001 she presented with significant weight loss and Dr Wong could not determine the cause. She lost 20 kg between April 2001 and October 2001 and Dr Wong referred her to the gastroenterologist, Dr Friedman.

On 15 October 2001 Dr Friedman wrote to Dr Wong reporting to him on what he described as slow improvement of ‘Kathie’s idiopathic gastroparesis symptoms’. The letter contained the following passage:

More concerningly Kathie seemed quite moody, tearful and depressed. She tells me that she has had a previous history of post-traumatic stress disorder and I wonder whether she may benefit from an opinion from a psychologist.

The letter referred to the possibility that fatigue from which she was suffering might be related to her work environment. She was at that stage working in an environment where she was exposed to chemicals.

Dr Friedman repeated what he said was ‘a history of previous post traumatic stress disorder’ in a further letter to Dr Wong of 8 November 2001. He copied that letter to a consulting psychologist, Roslyn West.

By a letter dated 19 November 2001 from Ms West to Dr Friedman Ms West stated:

Thank you for referring Kathie to me, and for the copies of the letters summarising your work with her.
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!

The applicant herself in her evidence said that she did not think that any doctor had ever diagnosed her with depression nor had she been diagnosed with post-traumatic stress disorder prior to the 2006 accident. She recollected seeing Dr Friedman but said she had no recollection of giving a history of post-traumatic stress disorder and no memory of seeing the psychologist Ms West.

The applicant made a WorkCover claim in 2002 related to the conditions for which she was being treated by Dr Wong and Dr Friedman. Dr Wong wrote a report to the insurer dated 13 February 2002 and Dr Friedman wrote two reports, one dated 15 February 2002 and another dated 4 March 2002. Dr Wong’s report referred to the weight loss issue and to Dr Friedman’s diagnosis that her ill health may be related to toxic exposure to chemicals at her place of employment. Dr Friedman’s first report, amongst other things, described her condition as including ‘psychological complaints’.

On 4 March 2004 Dr Wong saw the applicant and made the following hand-written notation:

Feeling sad, teary, no energy for a few months. Has been depressed before and was on Zoloft for one year.

Dr Wong restarted Zoloft as a result of that consultation.

The applicant was referred to the physician, Dr Little, in 2005. In a report to Dr Wong of 7 April 2005 he referred to the fact that she had been unwell for four years, suffering numerous symptoms including nausea, vomiting, headache, marked weight loss and lethargy. He referred to the fact that she had had several miscarriages. He described her as ‘rather anxious’. His opinion was that the history strongly suggested sensitivity to chemicals and, whilst he observed that testing procedures were limited, he would evaluate sensitivity with tests. In a report of 16 May 2005 he advised Dr Wong that the testing had indicated sensitivity to a variety of chemicals. At that stage, in 2005, Dr Little reported that she was considering moving out of the city away from chemical pollutants. In a letter in April of the following year (2006) Dr Little discussed the possibility of such a move in terms which suggested that in his view this would be desirable as avoidance methods are ‘far and away’ the most effective form of management and there are limitations on the benefits to be derived from medication. He said he had suggested what he described as ‘a trial of Zoloft’ to see if that would relieve her symptoms.

The applicant’s mother’s accident occurred on 7 October 2006 and she died on 13 October 2006. I have already referred to the circumstances insofar as they concerned the applicant herself.

The applicant saw Dr Wong on 16 October 2006 and she saw him many times thereafter until 1 February 2008. The trial judge analysed Dr Wong‘s treatment during this period, in particular his prescriptions, but the matter which the trial judge eventually saw as being especially significant was that Dr Wong made no note of the applicant ever referring to her mother’s death, and the records reveal he himself never addressed the possibility of that event being related to the problems for which he was treating the applicant during this period. He confirmed that that was the position in his oral evidence.

The significance of 1 February 2008 is that on that day the applicant, after having consulted her solicitors, saw Dr Wong and requested a letter from him saying how her life had changed since her mother had died.

Dr Wong wrote a hand-written letter, as requested, dated 19 February 2008. In that letter he began by referring to the request that had been made to him and observing that as her GP he could ‘only write about her scripts and the things she tells me’. In relation to her scripts he said that she had asked to be put on anti-depressant medications because of depression. He said that she often looked sad and sometimes teary. He said that she was getting more scripts for sleeping pills due to insomnia.

In his oral evidence Dr Wong said his letter was incorrect insofar as he had attributed the applicant’s need for sleeping pills to her mother’s death because she had been receiving prescriptions for sleeping medication prior to her death. He agreed that the medications for insomnia were no different after the 2006 accident to what they had been before. He also confirmed that the applicant’s use of Zoloft, the anti-depressant, was irregular and that on a review of this records it seemed to him that she had not been ‘compliant’ with the medication between 2007 and 2008. He agreed that notes he had made in 2008, and a letter he wrote in July 2008 to the applicant’s solicitors, suggested that she was coping.

The trial judge dealt with Dr Wong’s oral evidence at length.[21] The matter which the trial judge emphasised as being significant was his evidence that the applicant had not talked to Dr Wong much about the loss of her mother. The trial judge observed that his evidence in this respect was ‘in stark contrast’ to the applicant’s evidence that she had spoken to him about the impact of the death of her mother upon her in terms suggesting that as a result she was not coping and had lost the will to live.[22]
[21]Reasons [37]–[42].
[22]Reasons [42].

A Transport Accident Commission (‘TAC’) claim form in relation to the applicant’s mother’s accident was submitted on behalf of the applicant on 19 March 2008. In answer to questions about previous injuries or conditions on that form the applicant referred to her MCSS condition. She marked the box ‘yes’ in response to a question as to whether she had ever been treated by a psychologist or psychiatrist, adding the hand-written notation ‘WorkCover claim sent by insurer’.

Dr Wong wrote a letter to the applicant’s solicitors on 30 July 2008. In relation to the MCSS the letter set out a brief history of the treatment referring to the prescriptions of Zoloft in particular. As to the effect of the accident Dr Wong wrote:

Unfortunately I can’t report much about the mental condition of Kathleen because I don’t remember treating her for psychological injuries. On 16/10/08 [clearly a misprint, intended to be 16/10/06] 3 days after the car accident I saw Kathleen for an upper respiratory tract infection. I believe on this day she told me about the car accident but I treated for a viral illness. She looked okay as she spoke about the accident. She did not look depressed.

After dealing with the MCSS and Zoloft prescriptions, Dr Wong reported that the applicant said she misses her mother very much. Dr Wong concluded:

As for mental injury that Kathleen sustained I think it is just a huge loss to her personal support especially she is close to her mum. As for depression Kathleen takes Zoloft since 4/3/06 7 months before her mum died. She is irregular with the use of her medication. 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 okay.

Apart from Ms West, and whatever psychologist or psychiatrist was referred to in the TAC claim form of 19 March 2008, the first psychologist or psychiatrist to see the applicant was Dr Michael Epstein. He saw her for a medico-legal report at the request of her solicitors on 5 December 2008.

In a report of 8 December 2008 Mr Epstein set out the history as it had been related to him by the applicant. The judge found that there were a number of shortcomings in that history and the existence of those shortcomings was a significant factor in her conclusion that the applicant’s claim failed. I will return to those shortcomings. The opinion expressed by Dr Epstein was as follows:

Kathleen Mason appears to have developed symptoms of a Post Traumatic Stress Disorder following the death of her mother on 13 October 2006 as a result of a transport accident on 7 October 2006. Her Post Traumatic Stress Disorder has been characterised by her current intrusive thoughts about the accident and her mother’s appearance together with nightmares and flashbacks to events surrounding the accident. She has become more concerned about her own safety and security and is hypervigilant and feels a sense of bleakness.
She has also developed a Major Depressive Disorder. Her condition has been contributed to by a perception that there has been a breakdown in the relationship with her siblings arising from events surrounding her mother’s death. These relationship problems appear to have arisen as a result of the accident and its aftermath.
There are some indications that she was experiencing depression prior to her mother’s death. She had been diagnosed with multiple chemical sensitivities and chronic fatigue syndrome with symptoms in about 2001 leading to her ceasing work for over 12 months in 2002. She returned to work but had difficulty coping even working part-time and last worked in July 2005. She had been placed on anti-depressant medication during 2005.
She has not had any psychiatric or psychological treatment and in my view could well benefit from such treatment.

In mid-2008 the applicant moved to the country town of Gerangamete. From 19 February 2009 the applicant began attending Birregurra Community Health Centre. At first she was treated by a Dr McKenzie. From 19 January 2010 she was treated by Dr Sakis.

On 2 January 2010 the applicant was involved in a serious motor vehicle accident of her own. She suffered significant physical injuries which required hospitalisation for nine days.

Dr Sakis saw the applicant many times. According to Dr Sakis’ evidence, he never heard anything about the applicant’s mother’s accident until September 2011 when he was contacted by the applicant’s solicitors. This prompted him to discuss the accident and her mother’s death with the applicant for the first time.

On 16 February 2010 the applicant was seen by Dr David Weissman, consultant psychiatrist. Dr Weissman saw the applicant for the purpose of preparing a medico-legal report for the TAC in relation to the claim which the applicant had submitted dated 19 March 2008.

Dr Weissman took a history from the applicant. Again, the trial judge identified shortcomings in that history which were significant in her eventual decision to dismiss the applicant’s claim. I will return to those shortcomings, but it is necessary at this point to refer to the most striking shortcoming: the absence of any reference to the motor vehicle accident the applicant had had a short time before the consultation with Dr Weissman on 16 February 2010. In a supplementary report which was tendered on the hearing Dr Weissman confirmed that he had not been told of that accident. The applicant in her evidence said that she believed she did tell Dr Weissman of her accident or that she thought that it would have been apparent because her arm was still in a sling. The trial judge found that the applicant’s recollection in this respect was likely to be faulty.[23]
[23]Reasons [63] at p 48.

Dr Weissman’s opinion in his report of 16 February 2010 was that the applicant’s understandable grief at her mother’s death had turned into ‘an abnormal or pathological grief reaction or complicated bereavement’.[24] He continued:

This has been complicated by the development of a chronic Major Depressive Disorder of moderate intensity or severity, associated with symptoms and features of traumatisation.[25]

[24]Emphasis in the original.

[25]Emphasis in the original.

He observed that there was ‘possibly’ a small amount of pre-existing or unrelated psychiatric or psychosocial impairment.’[26]
[26]Emphasis in the original.

Dr Sakis wrote a report to the TAC on 22 September 2010 in relation to a claim by the applicant concerning her own motor vehicle accident in January 2010. Amongst other things, he referred to her as being fearful and panicky as a result. He referred to her earlier conditions of MCSS, chronic fatigue syndrome and depression. The letter made no reference to any issues as a result of the mother’s accident. At that time Dr Sakis’ evidence was that he had never been told of the mother’s accident by the applicant.

By a Worker’s Claim for Impairment Benefits form dated 29 March 2011, the applicant claimed for work related injuries concerning the MCSS. Amongst other things, she claimed for psychological upset, insomnia, anxiety and depression and said that the injury had been sustained or she had become aware of it in 2002.

Dr Epstein reviewed the applicant in November 2011 and wrote an updated report dated 25 November 2011. He included in his history the accident the applicant had had on 2 January 2010. Relevantly, his diagnosis remained unchanged.

The first occasion upon which the applicant had any psychological or psychiatric treatment in relation to the 2006 accident and her mother’s death was in January 2012 when she saw Dr Stephen McConnell, consultant psychiatrist, at The Geelong Clinic. In a report dated 27 November 2012 Dr McConnell said:

I diagnosed Ms Mason with Post Traumatic Stress Disorder, Chronic Major Depressive Disorder (both at severe levels) and on-going complicated/unresolved grief. These conditions have been caused by the death of Kathie’s mother in a car accident in 2006.
Kathie continues to be severely disabled by the ongoing psychiatric and psychological impacts of the above issues related to her mother’s death as well as associated family discord with Kathie’s siblings since the fatal accident. The latter can be directly related to her mother’s death also.

Dr McConnell referred the applicant for counselling to a psychologist, Mr Andrew Winter. With the exception of one session of grief counselling in January 2007, the counselling with Mr Winter which began on 20 March 2012 was the first counselling she received in relation to her mother’s death. In a report dated 27 November 2011 (but clearly intended to be dated 27 November 2012), Mr Winter said:

When I started seeing Ms Mason I conducted an extensive range of assessments with her which showed that she clearly met the DSM criteria for Post-traumatic Stress Disorder (“severe” levels on the PTSD Symptom Scale and on the Impact of Events Scale Revised) as well as having “severe” levels of anxiety (Beck Anxiety Scale) and levels of depression which fluctuate from “moderate” to “severe” (Beck Depression Scale).

Mr Winter referred to Ms Mason’s ‘complex background prior to her mother’s death’ including her previous health problems, her abusive partner, her dying father, the MCSS and chronic fatigue syndrome. He suggested that all of these matters may have led to greater vulnerability but what he saw as being of more significance was the close relationship she had had with her mother and the significance of the events in hospital when her mother was critically ill. He said these events were the primary content of her nightmares, ‘flashbacks’ and ruminations, and he continued:

These features are central to the diagnosis of PTSD (and differentiate from a complicated grief reaction) and it is the content of these features that is the main reason why this PTSD can be attributed primarily to the death of Ms Mason’s mother following the motor vehicle accident on 7^th October 2006.

Dr Weissman reviewed the applicant in July 2012. He reported some improvement and otherwise his conclusions were substantially unchanged.

The applicant’s solicitors arranged for her to be seen by another consultant psychiatrist, Associate Professor Nick Paoletti, on 8 November 2012. In his report dated the same day he set out the history he had been given and the symptoms the applicant described to him. Relevantly, his opinion was that Ms Mason suffers from:

Post-Traumatic Stress Disorder (DSM-IV 309.81), with traffic anxiety and panic attacks, related to the circumstances of her mother’s death and exposure to her dying process, and possibly reinforced by her own subsequent motor vehicle accident.
Bereavement (DSM-IV V62.82), due to the death of her mother, with unresolved grief.

A little later he reported:

Ms Mason’s mother’s accident and death, and her exposure to the mother’s dying process, would be a ‘significant contributing factor’ to her current illness and the sole factors in the precipitation of the post-traumatic stress disorder and bereavement. The role of her own motor vehicle accident is not entirely clear, but her symptoms were well established prior to that.

Again, the trial judge found that there were deficiencies in the history he had been given which were significant. I will return to them.

Dr Epstein reviewed the applicant in December 2012. His diagnosis was unchanged.

Another consultant psychiatrist, Dr Robert Athey, saw the applicant at the request of her solicitors in December 2012. He took a history from the applicant. Again, the trial judge identified shortcomings in that history which she found to be significant. I will return to them.

Dr Athey set out the DSM-IV criteria for post-traumatic stress disorder and addressed each of those criteria in turn reporting that the applicant met them. He also said that she met the criteria for a major depressive disorder. In assessing the level of impairment he made the observation that there was no ‘psychiatric impairment’ prior to the injury as chronic fatigue syndrome and MCSS are not ‘psychiatric illnesses’. His relevant conclusion was as follows:

On the evidence that I can glean, both from the reports provided and from Ms Mason herself, I do not consider that she had a significant psychiatric diagnosis prior to her mother’s death. The only possible diagnosis could be strong dependency traits on her mother.
Since then, she has had symptoms of high levels of anxiety and of depression. The anxiety problem, I think, fulfils the criteria for post-traumatic stress disorder which is a problem of excessive anxiety following a traumatic event. 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.
I think, on the balance of probability, had she not seen her mother in a distressed and injured state, she probably would have gone on to develop some other anxiety disorder, possibly panic disorder with agoraphobia which would have been equally disabling.

The reasons for judgment

At the outset of her reasons for judgment the trial judge articulated the issues as follows:

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”).[27]

[27]Reasons [3].

At the commencement of her analysis of the merits of the application and the various submissions made the judge described the principles to be applied as follows:

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 s 93(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.
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.[28]

[28]Reasons [60]. The trial judge cited: Mobilio [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; AG Staff v Filipowicz (2012) 34 VR 309.

The applicant failed on issue (a). It was not suggested that the trial judge had erred in her statement of the applicable legal principles.

The trial judge reviewed the applicant’s evidence concerning the traumatic experience of seeing her mother seriously injured in hospital, and the circumstances of the decision to terminate her life support. She set out the applicant’s evidence as to the consequences of her mother’s accident in detail.[29]
[29]Reasons [4]–[9].

The trial judge then reviewed the applicant’s work history and medical problems before the 2006 accident.[30] She similarly reviewed the applicant’s health problems and treatment after the 2006 accident.[31] It is clear from that review that the trial judge considered it to be significant that neither Dr Wong nor Dr Sakis (or, on the records, Dr Sakis’ partner Dr McKenzie) had ever treated the applicant for any psychological consequence referable, or apparently referable, to her mother’s death. Indeed, Dr Sakis had been unaware of the incident until contacted by the applicant’s solicitors in 2011.
[30]Reasons [10]–[24].
[31]Reasons [25]–[50].

The trial judge reviewed and set out the evidence of each of the psychiatrists and the psychologist.[32]
[32]Reasons [51], [53] (Dr Epstein); [54]–[55] (Dr Weissman); [56] (Dr McConnell); [57] (Mr Winter); [58] (A/Prof Paoletti); [59] (Dr Athey).

The trial judge referred to the submissions made, and in particular submissions made on behalf of the respondent as to the applicant’s credibility. The trial judge’s conclusion was that she did consider the applicant to be mentally unwell and that that had impacted upon her capacity to give accurate and reliable evidence.[33] One significant consequence of that conclusion was that the trial judge preferred the evidence of Dr Wong and Dr Sakis on the issues of whether, when, and how the applicant had raised her mother’s death with them to that of the applicant.[34]
[33]Reasons [63], at p 26.
[34]Reasons [63], at pp 27–8.

The trial judge accepted that the applicant was very close to her mother, seems to have been dependent upon her, was deeply distressed by the circumstances of her death and misses her very much.

The trial judge’s critical conclusion was in these terms:

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.[35]

[35]Reasons [63], at p 26.

The trial judge set out 10 reasons why she had reached that conclusion.[36] Without reproducing the full detail of the trial judge’s 10 reasons, they are as follows:
[36]Reasons [63]. The reasons are numbered (i) to (ix), but there are two (viii).

(1)The evidence of Dr Wong, which the trial judge accepted, that the first occasion upon which the applicant brought up the impact of the 2006 accident with him was approximately 16 months after its occurrence, and after the applicant had recently consulted her solicitors;
(2)The finding, preferring the evidence of Dr Sakis and the medical notes to the evidence of the applicant herself, that the applicant never mentioned the 2006 accident to her treating general practitioners after Dr Wong until September 2011;
(3)Dr Wong’s assessment of the applicant’s condition and reaction to her mother’s death as at early 2008 as set out in his hand-written letter of 19 February 2008;
(4)Dr Epstein’s opinion and diagnosis was reliant upon the history he had been given, and he was unaware of the following matters:
·the migraine headaches requiring time off work and receipt of sickness benefits in the mid-1990s;
·the matters Dr Friedman had reported in 2001, Dr Wong’s medical notes of 2004, Dr Little’s medical certificate of 2005 or the applicant’s TAC claim of 19 March 2008;
·the correct history of the applicant’s prescriptions for Zoloft commencing in 2005, and the accurate history of the prescriptions after the accident in 2006;
·the correct history of the applicant’s problems with sleep;
·the conflicting evidence as to what the applicant had seen when she had inspected her mother’s car; and
·the conflict between Dr Epstein’s history suggesting the applicant had been suicidal in April 2008 and Dr Wong’s clinical notes at that time and shortly thereafter.

(5)The impact upon the applicant of her own serious accident in 2010 as described in the second and third reports of Dr Epstein;
(6)Inaccuracies in an affidavit sworn by the applicant’s former housemate and current partner;
(7)Shortcomings in the history upon which Associate Professor Paoletti had relied, in particular:
·unawareness of the matters recorded by Dr Freidman in 2001, and by Dr Wong in 2004 and her full history of sleeping medication prescriptions;
·inconsistency between the history obtained in relation to the 2010 accident and that given to Dr Epstein;
·the fact that he was told the move to the country had been a result of the impact of the mother’s accident when the trial judge found that it had been primarily motivated by the MCSS; and
·unawareness of the applicant’s failure to raise the issue of her mother’s death with her general practitioners and of the fact that no specialist psychological or psychiatric treatment was given in relation to the 2006 accident until early 2012.

(8)Similar deficiencies in the history taken by Dr Athey, in particular:
·he was given no history suggestive of prior anxiety or depression, which was clearly inaccurate when regard was had to the documentary record including Dr Freidman’s letters in 2001, Dr Wong’s records, and the certificates and claim form referable to the MCSS impairment;
·he was unaware of the history of insomnia;
·the history he gave of family tension over the mother’s death was inconsistent with the applicant’s oral evidence that the conflicts had dissipated;
·the assumption that the move to Victoria was to avoid reminders of her mother’s death when the primary reason was the MCSS; and
·he did not appear to appreciate the severity of the 2010 accident and his appraisal of the effect of that accident was clearly inadequate.

(9)There were ‘difficulties’ with Dr Weissman’s opinion as:
·he was unaware of the matters referred to in Dr Freidman’s 2001 letters, Dr Wong’s history of depression in 2004, and of the claim for psychological upset and anxiety in relation to the MCSS;
·he did not appear to recognise that apart from Dr Wong’s hand-written letter of 19 February 2008, the applicant had not mentioned psychological or psychiatric reaction to the 2006 accident until September 2011. Nor did he appear to know anything of the applicant’s history of many miscarriages and other gynaecological problems;
·he did not seem to be aware of the applicant’s history of insomnia;
·he did not appear to be aware of the true history in relation to Zoloft prescriptions; and
·he was not aware of the 2010 accident at all.

(10)There had been no psychological or psychiatric intervention referable to the 2006 accident until early 2012. If the applicant’s alleged symptoms had been impressed upon her treating general practitioners by her they would have devised a mental health plan to deal with them at an earlier time. The treating psychiatrist and psychologist, Dr McConnell and Mr Winter, formed their opinions on the basis of a history which was deficient in the following respects:
·neither practitioner had a history of the matters reported by Dr Freidman in his letters of 2001, the history of depression requiring anti-depressants and the long history of insomnia, the claims of psychological distress, depression and anxiety referable to the MCSS or any other psychiatric and psychological treatment received prior to the 2006 accident;
·neither practitioner seemed to be aware of the applicant’s many miscarriages and other gynaecological problems; and
·neither practitioner had any history relating to the 2010 accident, and gave a history of conflict with family members over termination of the mother’s life support which was inconsistent with the applicant’s own evidence.

Proposed grounds of appeal and submissions

The proposed grounds of appeal are the following:

1The trial judge erred in accepting that the plaintiff had suffered from PTSD in 2001 in circumstances where:
(a)there was no evidence of any causative factor which would satisfy the diagnostic criteria for a diagnosis of PTSD prior to or during 2001;
(b)what was recorded by a gastroenterologist Dr Friedman as a previous history of PTSD in 2001 otherwise lacked evidentiary support of a diagnosis of PTSD relevant to the history said to have been given;
(c)there was no evidence of any diagnosis of PTSD prior to or during 2001 by any medical practitioner qualified to make such a diagnosis; and
(d)the Appellant denied that she had been diagnosed with any condition of PTSD prior to or during 2001.

2The trial judge erred in failing to place adequate weight upon and/or to demonstrate a sufficient path of reasoning for not accepting the opinions of psychiatrists including –
(a)       Dr Epstein;
(b)       Dr McConnell;
(c)        Dr Paoletti;
(d)       Dr Athey and
(e)       Dr Weissman –
who variously diagnosed the applicant as suffering from PTSD, Major Depressive Disorder and Bereavement Disorder.

3In rejecting the opinions of all psychiatrists who provided reports as to any psychiatric condition from which the Appellant was suffering, the trial judge failed to have any or any adequate regard to opinions formed on the basis of –
(a)the Appellant’s presentation to such psychiatrists;
(b)clinical examinations formed by practitioners qualified in the discipline of psychiatric diagnosis;
(c)the application of the diagnostic criteria for PTSD and/or Major Depressive Disorder and/or Bereavement Disorder by practitioners qualified in the discipline of psychiatric diagnosis;
(d)those aspects of the history provided which were relevant to the making of diagnoses using the diagnostic criteria applicable to each diagnosis.

4The reasons for decision of the trial judge are inadequate in that they fail to adequately deal with a body of psychiatric evidence to the effect that the transport accident was a cause of psychiatric injury whether diagnosed as PTSD and/or Major Depressive Disorder and/or Bereavement Disorder which the Appellant was suffering as at the date of trial.
5The reasons for decision of the trial judge are inadequate in that there was no evidence from practitioners qualified in the discipline of psychiatric diagnosis to support a conclusion that the transport accident was not a cause of the Appellant’s psychiatric condition whether diagnosed as PTSD and/or Major Depressive Disorder and/or Bereavement Disorder present as at the date of trial.
6The trial judge misinterpreted and/or misapplied the evidence adduced at trial in finding at [63] that the Appellant had failed to prove that she suffered from any psychiatric condition to which the transport accident on 7 October 2006 and the consequent death of the Appellant’s mother on 13 October 2006 were a cause.
7The trial judge erred in her reasoning at [64], [65] and [66] (other than [66](e)) in identifying a series of medical conditions which were not relevant to a diagnosis of PTSD to which the transport accident on 7 October 2006 and the consequent death of the Appellant’s mother on 13 October 2006 were a cause.
8The trial judge erred in her reasoning at [66](e) in failing to determine that the further transport accident in which the Appellant was involved on 2 January 2010 aggravated the applicant’s PTSD condition caused by the transport accident on 7 October 2006 and the consequent death of the Appellant’s mother on 13 October 2006, and that it was the earlier accident which gave rise to the “survivor guilt” identified.

The applicant’s submissions dealt with proposed ground 1 as a discrete complaint. Otherwise, proposed grounds 2 to 8 were dealt with together, the substance of the submissions made being that the trial judge had no proper basis for rejecting what was said to be the unanimous opinion of the psychiatrists.[37]
[37]I do not interpret Dr Weissman as having made a conclusive diagnosis of PTSD.

In relation to proposed ground 1 it was submitted that there was no basis for a conclusion that the applicant had suffered from post-traumatic stress disorder in or prior to 2001. There was no evidence that such a condition had ever been diagnosed and, it was submitted, there was no evidence the applicant had ever been exposed to an event which might satisfy the criteria for such a condition or be capable of giving rise to such a condition. It was submitted that the references to Dr Friedman’s letters in 2001, and to what he had said about post-traumatic stress disorder, were so pervasive throughout the reasons for judgment that they undermined the entire reasoning process of the trial judge.

The respondent submitted in relation to proposed ground 1 that the judge had relied upon the fact that the applicant had reported having suffered from post-traumatic stress disorder, not that a diagnosis had been made of that condition, and upon the fact that the psychiatrists did not know of that fact. The opinions they expressed were based upon a history which was deficient to that extent. That deficiency, combined with all of the others to which the trial judge referred, meant that their opinions had not been based upon a sound foundation.

In reply, it was submitted on behalf of the applicant that the trial judge had gone beyond simply relying upon the applicant’s report of having suffered post-traumatic stress disorder in 2001 and in that respect the applicant referred to what the trial judge had said when dealing with the reports of Dr McConnell and Mr Winter, as follows:

Neither have a history of the plaintiff apparently suffering Post-Traumatic Stress Disorder in 2001 and being referred to a psychologist...[38]

[38]Reasons [63], at p 50.

In relation to the grounds (proposed grounds 2 to 8) concerning the trial judge’s failure to adopt the conclusions expressed by the psychiatrists, it was submitted on behalf of the applicant that those opinions had been well founded as they were based upon a history consistent with the applicant’s evidence which had not been contradicted ‘in its fundamentals’. It was stressed that the psychiatrists were specialists and were addressing specific DSM-IV criteria in relation to the post-traumatic stress diagnosis. As to Dr Wong, it was submitted that he had failed to appreciate the severity of the applicant’s symptoms and the true nature of her condition. It was submitted that the trial judge ought to have determined that Dr Wong had failed to diagnose the real problem and had failed to refer her for treatment for that reason. The applicant submitted that what the trial judge identified as errors in the history were in large part irrelevant to the application of the DSM-IV diagnostic criteria for post-traumatic stress disorder.

The applicant particularly relied upon the report of Dr Epstein in 2008. It was submitted that the ‘criticism of greatest potential relevance’ in relation to that report was what was said to be inconsistencies in the evidence concerning the condition of the mother’s car. In that respect the condition of the car was, it was submitted, the subject of unchallenged evidence by the applicant. Dr Epstein’s report was submitted to be particularly important because his diagnosis was made before the 2010 accident. In any event, it was submitted, ‘correctly viewed’ the consequences of the 2010 accident were a further response to the 2006 accident. It was submitted that inadequate knowledge of the 2010 accident did not render nugatory the psychiatric opinions which had been expressed about the effect of the 2006 accident.

It was submitted that the matters of medical history which were relied upon by the trial judge were ‘peripheral’ to the case, particularly to the diagnosis of post-traumatic stress disorder.

It was submitted on behalf of the applicant that there was no evidence that the 2006 accident was not ‘a cause’ of the applicant’s mental condition and that the judge should have determined what component of that mental condition was referable to the 2006 accident and then determine whether or not that was ‘severe’.

The respondent supported the trial judge’s conclusion for the reasons she gave. The respondent emphasised the importance of the history in a diagnosis. The respondent submitted that the applicant cannot point to any errors made by the trial judge in detailing the many deficiencies in the histories upon which the psychiatrists respectively based their opinions. It was submitted that the applicant effectively seeks to invert the onus of proof in submitting that there was no evidence the 2006 accident was not ‘a cause’ of her current mental condition. It was submitted that given the deficiencies which the trial judge had identified, it was simply not possible on the material for the trial judge to conclude that any identifiable injury had been caused by the 2006 accident, and that a comparison of her pre-2006 and post-2006 mental condition was also impossible.

Analysis

In Mobilio Brooking JA observed:

[W]here, as is often the case when personal injuries are in question, the opinions of medical experts are to a considerable extent dependent upon the accuracy of the claimant as historian, the advantage which the primary judge has in assessing the claimant’s credibility assumes an importance that is, so to speak, both direct and indirect, when the judge comes to evaluate the lay and expert evidence that has been given.[39]

[39][1998] 3 VR 833, 836.

The reliability of the claimant’s history is likely to be especially important when what is in issue is psychiatric opinion on a condition where the diagnostic criteria depend upon the claimant’s report of subjective feelings.[40]
[40]Tame v New South Wales (2002) 211 CLR 317, 416 [293] (Hayne J).

The task of assessing a claimant’s credibility and reliability is that of the court.[41]
[41]HG v The Queen (1999) 197 CLR 414, 428 [42] (‘HG’); Cavenett v Commonwealth of Australia [2007] VSCA 88 [80] (‘Cavenett’); Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104 [27] (‘Gjorgovska’). Where appropriate, a court ought to pay proper regard to the relevant expertise of psychiatrists in the assessment a claimant’s history: Devaney v The Queen [2012] NSWCCA 285 [88] (Allsop P, with whom Price J agreed) and Campbell J’s dissent at [144]. Campbell J’s approach may be seen as more consistent with HG. It is unnecessary to resolve that conflict.

If the history is found to be unreliable a court may properly reject medical opinions founded upon it.[42]
[42]Whisprun Pty Ltd v Dixon (2003) ALR 447, 450 [8] and 463 [60] (Gleeson CJ, McHugh and Gummow JJ).

Of course, a court is not bound to simply reject psychiatric opinions founded upon an unreliable history. The court may be able to reach a conclusion as to the existence or non-existence of a particular condition, such as PTSD, notwithstanding the fact that the psychiatric opinions were based upon facts in conflict with the facts found by the court.[43]
[43]As was done in Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and in Gjorgovska [2006] VSCA 104.

In the particular context of PTSD and the application of DSM-IV, many of these considerations were brought together by Hayne J in Tame v New South Wales.[44] After addressing the importance given to the distinction between psychiatric injury and mental distress, in the context of the approach taken by treating psychiatrists, he said:

That importance can be illustrated by considering post-traumatic stress disorder.The revised fourth edition of the Diagnostic and Statistical Manual of Mental Disorders(commonly referred to as “DSM-IV-TR”) gives six diagnostic criteria for identifying post-traumatic stress disorder. Of those, the last is that “[t]he disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning”. The diagnostic criteria also include criteria whose application depends upon the patient's report of subjective feelings of helplessness, fear, horror and the like. It is at these points, of capacity to participate in ordinary activities, and reports of subjective feelings, that the intersection between law and medicine may be thought to present difficulties. No doubt it is the difficulty of identifying that intersection which explains why the introduction to DSM-IV-TR saysthat: “[W]hen the DSM-IV categories, criteria, and textual descriptions are employed for forensic purposes, there are significant risks that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis.” (Emphasis added).
The problem is not just a problem of articulating appropriate and relevant criteria for distinguishing compensable conditions from the non-compensable. Once it is recognised that capacity to participate in ordinary activities is, not surprisingly, an important consideration for a psychiatrist treating a patient, and that the psychiatrist, again not surprisingly, is concerned to deal with the patient according to that patient's history and presentation rather than by reference to some objective inquiry into the truth of that history and presentation, it is clear that there truly is an “imperfect fit” between the questions of ultimate concern to the law and those of concern to the clinician. The psychiatrist treating a patient is concerned to look backwards only for the purpose of identifying present and future treatment. In particular, determining the cause of an existing condition is important to the discipline of psychiatry only for the light it sheds on future treatment. But for a legal system which assigns responsibility only if there is fault, the focus on cause is critical to that task of assigning responsibility.[45]

[44](2002) 211 CLR 317.

[45](2002) 211 CLR 317, 416–7 [293]–[294] (citations omitted) (emphasis in the original). See also New South Wales v Seedsman (2000) 270 ALR 583, 604 [114] (Spigelman CJ) cited with approval in Cavenett v Commonwealth of Australia [2007] VSCA 88 [78]–[80].

The trial judge was not precluded from, and was indeed bound to, form her own conclusions as to the factual basis for the psychiatric opinions expressed, and to then determine the weight, if any, to be accorded to those psychiatric opinions. She set out the shortcomings she had identified. With the exception of what was said to be the PTSD diagnosis in 2001 and the issue of the condition of the mother’s car, the applicant did not submit that the matters relied upon by the judge were inaccurate. Rather, it was submitted that they were irrelevant. In the absence of psychiatric opinion to that effect, I would not accept that the matters the trial judge catalogued were irrelevant.

The trial judge did not find as a fact that the applicant had not suffered a mental or behavioural disturbance or disorder caused by the mother’s accident, she found that, on the evidence presented, she was unable to conclude the applicant had proved that she had.

The applicant’s submissions, in my view, do not confront the most important factors which led the judge to conclude that the applicant had not established what she needed to prove in order to obtain leave.

The factors of greatest significance to the trial judge, it seems to me, were the applicant’s interactions with Dr Wong during the period in which he treated her between the mother’s accident and the end of 2008, and the applicant’s interactions with Dr Sakis and his colleague until Dr Sakis was first told of the applicant’s mother’s accident in 2011. Those matters seem to me to be the ones the trial judge found most concerning, and which most undermined the psychiatric opinions in her view. As to those matters the trial judge accepted the doctors’ evidence in preference to the evidence of the applicant. She gave reasons why. She had the considerable advantage of having observed the two doctors and the applicant in the witness box. I do not think that this Court can, or should, reach a contrary conclusion.

It is true that the trial judge also referred to other matters including the reported PTSD in 2001 and inconsistencies as to how the applicant had described the condition of the mother’s car. The applicant’s counsel focused on those two matters. But it seems to me that they were merely two amongst many other circumstances of which the judge found the psychiatrists were unaware and which led the trial judge to conclude that she could not act on their opinions. I do not accept the submission that those particular matters are crucial to her process of reasoning. In any event, it seems to me that there was a report of the applicant having suffered from PTSD in 2001. In my view the respondent’s submission is correct in that it was ignorance of what had been reported which the judge saw as relevant, not ignorance of a proved diagnosis. I do not think the issue about the state of the car had any material significance, and in any event it never advanced beyond an unresolved inconsistency. The issue for the judge was, it seems to me, the inconsistency itself.

Many of the submissions made on behalf of the applicant, in particular the submission made that the trial judge ought to have found that Dr Wong had failed to appreciate the nature of the applicant’s condition, and the submission that (in effect) the judge ought to have treated the deficiencies in the histories as being of no significance, amounted, in my view, to a submission that psychiatric or medical conclusions should have been drawn by the judge herself. The judge was in no position to make an alternative medical assessment to that which Dr Wong had made at the relevant time on the applicant’s presentation to him. If the expert opinions were deficient, the judge was not bound to attempt to re-construct a diagnosis according to her own lay assessment of what the opinion would have been if all the relevant facts had been known and taken into account.

It does seem a surprising conclusion that the (almost) unanimous opinions of the psychiatrists were not adopted. But, as the trial judge made clear, this applicant’s history is extraordinarily complex. Given that none of the psychiatrists had an accurate history, I do not consider that the judge was in error in concluding that she was unable to adopt their opinions.

Conclusion

The applicant met the requirements for the granting of leave to appeal. There was sufficient doubt to warrant an appeal and substantial injustice would have resulted had the decision been wrong. The appeal, however, should be dismissed.

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Citations

Mason v Transport Accident Commission [2014] VSCA 267

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[2014] VSCA 267

24 October 2014