McDowall v Transport Accident Commission
[2020] VCC 2042
•21 December 2020
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01768
| DAWN RUTH McDOWALL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 24 and 30 November 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 21 December 2020 | |
CASE MAY BE CITED AS: | McDowall v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2042 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles – paragraph (c) case
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Mobilio v Balliotis [1998] 3 VR 833; Noonan v State of Victoria [2013] VSCA 289; Katanas v Transport Accident Commission [2016] VSCA 140; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr G Pierorazio | SLM Law |
| For the Defendant | Mr A D Clements QC with Ms F Ryan | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”), for injury suffered as a result of a motor vehicle accident in which the plaintiff’s daughter was injured on 4 May 2014 (“the transport accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘Serious injury’ means –
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The application was brought pursuant to sub-paragraph (c) of the definition of “serious injury”.
5 The plaintiff’s case is that by reason of the motor vehicle accident, she suffered a psychiatric injury in the nature of a Major Depressive Disorder, an Anxiety Disorder and Post-Traumatic Stress Disorder (“PTSD”).
6 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
7 In relation to an application concerning sub-paragraph (c) of the definition of “serious injury”, the judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of the word “severe”. In that case, without suggesting the use of any particular adjective to mark the distinction, Brooking JA held that the word “severe” as used in the definition, is stronger than the word “serious”.[4] Winneke P agreed with Brooking JA’s reasons and further agreed that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious”.[5] Phillips JA[6] and Charles JA[7] made comments to similar effect.
[3][1998] 3 VR 833
[4]Mobilio v Balliotis [1998] 3 VR 833 (“Mobilio”) at 846
[5]Mobilio (ibid) at 834-5
[6] Mobilio (ibid) at 858
[7]Mobilio (ibid) at 860-861
8 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder is “severe”, I must conclude that those consequences are more than “very considerable” to the plaintiff.[8] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[9]
[8]See Noonan v State of Victoria [2013] VSCA 289; Mobilio (ibid); Katanas v Transport Accident Commission [2016] VSCA 140
[9](Supra) at 140, per Crockett and Southwell JJ
9 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[10] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[11] The task of assessing the pain and suffering consequences of an injury has been held largely to be a question of impression or value judgment.[12]
[10]See s93(6) of the Act, which states that leave must not be given by a court unless the court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard”, a serious injury for the purposes of the Act
[11]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at paragraph[52]
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
10 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[13]
[13]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
11 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[14]
[14]PetkovskivGalletti (ibid)
12 Applying the principles set out in Petkovski v Galletti,[15] in an application like this where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury or the consequences of the additional injury, which must be assessed. To undertake this task, the plaintiff must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[16] If I am satisfied that the additional impairment is “serious” and long-term, then the plaintiff will have demonstrated that she is suffering from a “serious injury” under the Act.[17]
[15](Supra) at 443
[16](Supra) at 444
[17]Supra
13 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from her husband, Mr Leigh McDowall. Mr McDowall was not required to attend for cross-examination.
14 In addition, both parties relied upon medical reports and other material which was contained within Court Books tendered in evidence.[18] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[18]The plaintiff’s Court Book was marked as exhibit (“Ex”) P1; the defendant’s Court Book was marked as Ex D1
15 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background
16 The plaintiff was born in March 1957 in Hamilton. She commenced her secondary education at Hawkesdale Secondary College and then went to Brauer College, where she completed Year 11.[19]
[19]Ex P1, p8
17 Following this, she worked at a business called Sacks Jewellers (“Sacks”) in Warrnambool. She remained in Warrnambool until 1981, when she married her husband and moved to Hamilton. She then commenced working at the local radio station, in administration. Her husband then moved to Geelong and she relocated with him, working at Thomas Jewellers.[20]
[20]Ex P1, pp8-9
18 After this, she gained employment at Windsor Jewels at the Block Arcade in Melbourne, and then at a restaurant, part time. After a time, the plaintiff and her husband relocated back to Warrnambool, where the plaintiff returned to work at Sacks.[21]
[21]Ex P1, p9
19 The plaintiff’s daughter, Lucie, was born in July 1995. After that, the plaintiff worked part time at Sacks.[22]
[22]Ex P1, p9
20 In the mid 2000s, the plaintiff did a Certificate III in Aged and Community Care and then commenced working part time for Barry Wilson & Associates, Civil Engineers in Warrnambool (“Barry Wilson”), doing administration. She continued in that employment until December 2013, when her employer decided to retire. She had a lot of accrued long service leave and annual leave and was taking this leave at the time of her daughter’s transport accident on 4 May 2014.[23]
[23]Ex P1, p9
Employment intentions
21 The plaintiff studied Bowen therapy through the Border College of Natural Therapies at Albury/Wodonga. She had received all the appropriate training and completed the bookwork and administration. To engage in the necessary hands-on training, she attended an instructor, who conducted monthly workshops and training weekends at Koroit. Through that process, the plaintiff obtained her Certificate IV in Bowen Therapy over a period of about twelve months. She then did anatomy and physiology via government-accredited workbooks. She became a member of the Bowen Association of Australia in 2010, while she was still working for Barry Wilson and doing part-time reception and filing.[24]
[24]Ex P1, p10
22 After she was advised that her employer at Barry Wilson was going to retire, the plaintiff decided to increase her workload performing Bowen therapy. She intended to go full time in that occupation, and at the time of the transport accident on 4 May 2014, she had commenced to develop that practice. At that stage, she was treating her clients at home. She had not then registered her business. She was fielding calls from people for treatment, but she wished to build up the business slowly. The clients came via word of mouth as she had not yet needed to commence advertising.[25]
[25]Ex P1, p10
23 The plaintiff had no concern about building up sufficient client numbers to become full time, as she was well trained and people liked the treatment she was providing. Once she had obtained enough clients, her intention was to rent premises (which later did occur).[26]
[26]Ex P1, pp10-11
The accident
24 On 4 May 2014, the plaintiff’s daughter was a passenger in a car on the Hume Highway near Seymour, returning to Ballarat from Wangaratta. The passenger side of the car hit a tree and began rolling and hit another tree. Her daughter suffered multiple fractures on the left side of her ribcage, and left lung contusions, with multiple fractures of her pelvis. She was flown to The Alfred hospital and admitted to the Intensive Care Unit (“ICU”).[27]
[27]Ex P1, p11
25 At the time that the plaintiff received the phone call about her daughter’s accident, she had been attending a service at her local church and was returning home. She was told that Lucie had been in a serious accident, but was conscious, and that she should go to the hospital urgently. Her husband and she drove to Melbourne and arrived at about 2.00am or 3.00am.[28]
[28]Ex P1, p11
26 Following her arrival in Melbourne, the plaintiff was with her daughter every day until she was discharged in late May 2014.[29]
[29]Ex P1, p12
27 The plaintiff first realised that she was having psychological symptoms as a consequence of her daughter’s accident, soon after her daughter was discharged from hospital.
28 On 8 July 2014, the plaintiff attended Dr Yvonne Robinson, a general practitioner at the Warrnambool Medical Clinic. She was suffering from flashbacks of seeing her daughter in the ICU and had become constantly angry and frustrated. She was referred at this time to a clinical psychologist, Dr Jennette Robinson. Dr Jennette Robinson advised the plaintiff that she was going to need more help, but that Dr Robinson was closing her practice.[30]
[30]Ex P1, p12
29 The plaintiff’s psychological problems continued and worsened when her daughter returned to university campus to live in 2015. She became depressed, stressed and anxious, and suffered regular panic attacks and flashbacks. She attended Dr Saini at the Warrnambool Medical Clinic on 8 September 2015. At that time, she was struggling to sleep and was regularly tearful. She could not get her daughter’s accident out of her head.[31]
[31]Ex P1, p12
30 On 9 December 2015, she was referred to Mr Murray Kinsgley, psychologist, of Warrnambool. The plaintiff commenced seeing Mr Kingsley on 13 July 2016. By that stage, she was constantly teary and in panic. She felt awkward and embarrassed in public. Mr Kingsley prescribed Aropax, 20 milligrams, and Avanza, 15 milligrams. She continued treatment with Mr Kingsley under Medicare until 30 June 2016, when the Transport Accident Commission took over funding of her treatment.[32]
[32]Ex P1, pp12-13
Evidence of the Plaintiff
31 As referred to above, the plaintiff swore two affidavits, the first dated 19 October 2019 and the second dated 23 July 2020. She gave a short amount of viva voce evidence-in-chief and was cross-examined and also re-examined.
32 The relevant evidence as to the pain and suffering consequences to which the plaintiff deposed that she suffers as a result of the transport accident, is as follows:
Day-to-day effects of the injury
(a) She suffers from constant anxiety and some panic attacks. The panic attacks are signified by shortness of breath, light-headedness and heart palpitations. The panic attacks can be triggered by thinking about what could have happened to her daughter;[33]
[33]Ex P1, p15
(b) She experiences flashbacks of seeing her daughter in the ICU. These occur about two to three times per week and cause her distress;[34]
[34]Ex P1, p13
(c) She continues to be upset and distressed at loud noises, including ambulance sirens and helicopters. She prefers to avoid going to hospitals.[35] At times when helicopters fly over her house, she suffers a reaction. When her daughter was in the trauma unit in her room in the hospital in Melbourne, the plaintiff could see the helicopters outside;[36]
[35]Ex P1, p14
[36]Ex P1, p14
(d) When the plaintiff’s husband recently suffered appendicitis and was advised that he needed surgery in Warrnambool, the plaintiff became extremely anxious, distracted, and panicked when she needed to accompany him to the hospital and while she was at the hospital;[37]
[37]Ex P1, p27
(e) Whenever there is any screaming around her she gets upset. In April this year, her daughter rang her parents and started screaming on the phone. The plaintiff was unable to speak and became paralysed with anxiety. The plaintiff could not tell why her daughter was screaming;[38]
[38]Ex P1, p14
(f) She continues to suffer anxiety and upset if she hears arguments or raised voices. She regularly wants to make sure that people are okay, even if they are strangers having a normal domestic dispute;[39]
[39]Ex P1, p14
(g) Cultural pastimes which she used to enjoy, including listening to music and reading, are no longer possible for her to enjoy. She finds that these activities trigger anxiety reactions in her. She feels a sense of loss that she no longer has the ability to enjoy music and reading, as these were important parts of her life before she suffered from her current injuries;[40]
[40]Ex P1, p28
(h) Her constant anxiety worsens when she knows that her daughter will be driving. Her daughter used to drive regularly from Ballarat to Geelong for work. At the times when the plaintiff knew that this trip was taking place, she became extremely stressed and anxious. She constantly asked her daughter to tell her the exact time of her shifts. She was generally at home when her daughter was travelling and was unable to focus on other things;[41]
[41]Ex P1, pp13-14
(i) In addition to general anxiety, the plaintiff would perform actions such as going onto the VicRoads’ internet site to check if there had been any car accidents near to her daughter’s route, even though she knew this to be irrational;[42]
[42]Ex P1, p14
(j) She continues to suffer anxiety and feelings of panic when she perceives that her daughter might be driving a motor vehicle. Her daughter now lives and works in Ballarat, and as a result, is no longer required to take the long trip between Ballarat and Geelong. The plaintiff still spends time each day suffering anxiety at the thought that her daughter may be involved in a transport accident. Recently, her daughter and her boyfriend advised the plaintiff that they were travelling to Wangaratta and the plaintiff was constantly hyperalert, stressed and anxious until she was informed that they had arrived safely;[43]
[43]Ex P1, p27
Treatment
(k) She continues to attend Mr Kingsley on a fortnightly basis. She also attends her general practitioner, Dr Campbell McKellar at the Middle Island Clinic. She is currently prescribed Sertraline (Zoloft), 50 milligrams each morning;[44]
[44]Ex P1, p15
(l) She is worried about the future. She has undergone all the treatment which has been recommended to her. She takes the medication which is prescribed for her. She undertakes psychological treatment. Despite this, her condition continues to have a profound impact upon her life;[45]
[45]Ex P1, p16
(m) A locum at her general practice recently recommended that she increase her dose of medication. At this stage, she prefers to remain on 50 milligrams of Sertraline, as she already suffers side effects from that dose of the medication. Her ability to function is impaired as a result;[46]
[46]Ex P1, p26
(n) During a period when she was not seeing Mr Kingsley, she continued taking her medication, and also continued to practise the techniques that Mr Kingsley had taught her for managing her panic attacks. She never stopped taking her medication during that time and she continued to use the techniques constantly during that time “to help me through very stressful situations and just to manage myself”;[47]
[47]T13, L9-23
Sleep
(o) She has great difficulty getting to sleep. She frequently wakes up feeling anxious and panicky during the night and then has difficulty returning to sleep. She gets frustrated and angry at being unable to sleep. She used to go to sleep easily and enjoy eight to nine hours’ sleep.[48] When she awakes in the morning, she is in a state of anxiety; [49]
[48]Ex P1, p13
[49]Ex P1, p28
(p) She continues to suffer nightmares where she feels an experience of being out of control. [50] When she has these nightmares, she wakes up feeling restless and distracted. As a consequence, she constantly feels tired and exhausted during the day.[51] Although she had occasional nightmares before her daughter’s accident, they have now become frequent and intense. The nightmares now occur every two to three weeks;[52]
[50]Ex P1, p13
[51]Ex P1, p28
[52]Ex P1, p13
Ability to socialise
(q) Her injuries have greatly impacted on her sociability and her previous recreational and domestic life;[53]
[53]Ex P1, pp15-16
(r) Before the accident, the plaintiff and her husband would often go out to dinner, but she now prefers to stay home, where she feels safe;[54]
[54]Ex P1, p16
(s) She continues to attend events when she feels greatly obliged, such as church on Sundays. Many other activities she now avoids. Her husband likes watching ALF matches involving Geelong. Prior to the transport accident, she would regularly accompany him. Although he continues to ask her to come with him, particularly when there are special friends going with him, she prefers mostly to avoid this activity;[55]
[55]Ex P1, pp15-16
Memory and concentration
(t) She no longer enjoys things which were once a normal part of her life. In particular, she no longer enjoys watching television because she finds that she can lose concentration easily;[56]
[56]Ex P1, p16
Sexual activity and libido
(u) The intimate side of her relationship with her husband has been greatly impacted by the transport accident. Since the accident, she feels a lack of motivation and interest, even though she still loves her husband. It upsets her greatly that this aspect of her life has been so altered;[57]
[57]Ex P1, p16
Ability to work
(v) Prior to the COVID-19 virus, she had continued her Bowen therapy business on a reduced basis. She would treat four to five clients per week, sometimes up to eight or nine at the most. The latter number was quite unusual. She now avoids taking new clients; [58]
[58]Ex P1, p15
(w) As a result of the COVID-19 virus, she has reduced her Bowen therapy work to a small number of very urgent clients. Even before the COVID‑19 virus, she was having difficulty coping and keeping her anxiety under control, in order to provide a treatment The additional anxiety of the presence of the virus caused her to suspend her work;[59]
[59]Ex P1, p28
(x) Before clients arrive, she becomes anxious. She tries to go for a walk near to where her rooms are located. If there is no gap between her clients, she tries to get a moment to breathe deeply to calm herself and takes breaks during the treatment. In these breaks, she works hard on calming herself;[60]
[60]Ex P1, p15
(y) The plaintiff currently volunteers at an opportunity shop one day a week for four-hour shifts. She accepted this position in order to receive the Centrelink benefit. Although she is pleased that she has been able to continue in this position, she finds it extremely hard to get to the opportunity shop for her shift, as she feels panicked and anxious beforehand. She regularly arrives at the opportunity shop late, due to her feelings of anxiety and panic;[61]
(z) Prior to suffering her injuries, the plaintiff had no difficulty getting to places on time and was a very organised and methodical person. She now feels overwhelmed by the need to perform even simple tasks, such as getting to her shift at the opportunity shop. At the end of her shift, she is exhausted and drained.[62]
[61]Ex P1, p27
[62]Ex P1, pp27-28
33 Under cross-examination, the plaintiff gave the following evidence:
(a) She developed post-natal depression shortly after her daughter, Lucie, was born in July 1995. That lasted for about two years. During that time, she was crying a lot and had low mood. She also had thoughts about what would happen if she went to the breakwater in Warrnambool and jumped off;[63]
[63]T14, L5-19
(b) Her mood began to improve from when her daughter was about twelve months’ old, to the point where within two or three years she would not have classed herself as having any problem at all;[64]
[64]T14, L20-25
(c) She did not receive any medical treatment for her post-natal depression. She did not recall seeing a psychologist in mid 1996 for some cognitive behaviour therapy;[65]
[65]T14, L28-31
(d) The post-natal depression was the first time in her life that the plaintiff had experienced depression that affected how she functioned;[66]
[66]T15, L26-29
(e) She would not have said that she felt depressed earlier in her life. She experienced anxiety as a child and adolescent, but not depression;[67]
[67]T16, L1-6
(f) She agreed that she had suffered a lot of anxiety as a child. She disagreed that she had suffered a lot of anxiety ever since her childhood;[68]
[68]T16, L7-11
(g) From the time that she was a “mid-aged” teenager, she stopped suffering from anxiety and led “a very normal, happy, every day life”;[69]
[69]T16, L12-14
(h) In her twenties and thirties, she had a very normal, happy adulthood: “I just really enjoyed life;”[70]
[70]T16, L23-28
(i) She did not recall still being upset in connection with the post-natal depression in about 2005. She denied feeling depressed when Lucie was ten years of age;[71]
[71]T17, L20-23
(j) She recalled being referred to see counsellor, Cathy Culkin, in about 2005. She said she did not actually go and see Ms Culkin, as Ms Culkin’s daughter was a friend of Lucie’s. She did not see any other counsellor or psychologist at that time;[72]
[72]T18, L5-20
(k) Between 2005 up until 2012, her mental health was good. She denied having any problems with depression or anxiety;[73]
[73]T18, L21-24
(l) She agreed that she became anxious towards the end of 2012, when Lucie was doing her VCE. At this time, Lucie became withdrawn and irritable and began cutting herself. She agreed that she was concerned about that and got in touch with the school counsellor. She agreed that the counsellor referred Lucie to a psychologist at the Warrnambool Hospital;[74]
[74]TT18-19
(m) She found out at this time that Lucie had been sexually assaulted by an adolescent who lived in the neighbourhood when she was much younger. That made her feel very anxious for her daughter’s safety;[75]
[75]T19, L24-30
(n) At about this time, she also found out that Lucie had been cutting herself due to the pressure of VCE. She and her husband went to see the psychologist at the Warrnambool Hospital with their daughter. The plaintiff went on another couple of occasions by herself to see the psychologist;[76]
[76]T20, L1-11
(o) She went to see the psychologist at the Warrnambool Hospital because she “needed strategies where I could help … [Lucie] and because … [Lucie] had opened up to them, I needed them to guide me in what would be best for … [Lucie]”;[77]
[77]T20, L17-21
(p) She denied that these events in around November 2012 took a “heavy toll” on her mental health;[78]
[78]T20, L29-31
(q) She denied that as a result of her daughter’s psychological symptoms and disclosure that she had been sexually assaulted, that she had herself become depressed at the end of 2012 and into 2013;[79]
[79]T21, L1-6
(r) She denied that she went to see Dr Dina Elhalawani at the Warrnambool Medical Centre in May 2013 because she was not coping with her daughter’s depression and she was feeling “broken-hearted by it”. She agreed that Dr Elhalawani provided her with a mental health care plan and a referral to a psychologist, Dr Jennnette Robinson. She said that the reason she was referred to see Dr Jennette Robinson was “so that I would be able to help my daughter deal with her issues”. She said that she did not recall feeling depressed at that time;[80]
[80]TT21-22
(s) She could not recall being told that she had been diagnosed as suffering from an Adjustment Disorder with Depressed Mood. She did not read the letter of referral addressed to Dr Jennette Robinson which contained that diagnosis. She confirmed that she took the letter of referral to the psychologist;[81]
[81]TT22-23
(t) She was shown the mental health care plan which was prepared at that time. She said that she thought she had told the general practitioner that her daughter was suffering from “‘situational depression’.” That is what she had been told her daughter was struggling with when she saw the psychologist at the hospital;[82]
[82]T24, L1-10
(u) She denied that she was feeling depressed and struggling to cope at this time;[83]
[83]T24, L22-31
(v) She said she thought what the doctor was referring to was that she and her husband were trying to obtain strategies to help them cope with their daughter’s situation. “We were seeking help for our daughter … I was looking for strategies to help our daughter deal with her problems;”[84]
[84]T25, L2-30
(w) It was suggested to the plaintiff that in May 2013, she was suffering from “low mood”. To this, she replied “I’m not actually sure what low mood means”. It was suggested to her that at this time, she was feeling unhappy, miserable and teary. To this, she explained that she was feeling unhappy with the situation that her daughter had found herself in. She thought that she probably, at times, had tears in her eyes when she was talking to Dr Elhalawani. She said that may have been how she was presenting, but she is “not responsible” for what the doctor writes in her notes. She denied that she was teary most of the time, and said “No, because I was functioning. I was working, I was doing everything that I normally would do. I was going to work, I was functioning;”[85]
[85]T26, L6-19
(x) When pressed in relation to this matter, the plaintiff denied again that she was feeling depressed at this time:
“I went to see my doctor to see about getting some help – getting strategies to help our daughter who was suffering from situational depression and we needed to help her and the GP couldn’t help.”[86]
[86]T26, L20-30
(y) It was suggested that at this time, she had feelings of anger and guilt. She said that she was feeling angry about her daughter’s situation and how she had got there. She denied that she was feeling guilty:
“No.I said to her that we needed strategies, we needed to be able to help our daughter, our daughter was struggling. We needed help so that we could help our daughter … our family was [not] functioning. There was stress because our daughter … had the situational depression and our strategy was to get as much help as we could to guide us to help [Lucie].”[87]
[87]T27, L4-25
(z) She said that the goal of the therapy was to help her and her husband to help their daughter’s situation and to be able to guide their daughter through what she was going through. She said that she attended counselling with Dr Jennette Robinson for this purpose: “This was about me reaching out and trying to help my daughter;”[88]
[88]T28, L12-21
(aa) She denied that the real reason she went to see Dr Jennette Robinson is that she personally had low mood, tearfulness, anger and guilt and that she needed help with her own mental-health symptoms;[89]
[89]T28, L22-26
(bb) She agreed that shortly after the mental health care plan was prepared, she commenced seeing Dr Jennette Robinson. She said that she thought the number of appointments was about eight. When it was put to her that she attended on twelve occasions, she thought that may have been “approximately correct”;[90]
[90]TT28-29
(cc) She said that the reason she saw Dr Jennette Robinson was “so that I could get strategies for helping me. She was going to educate me in helping me to help my daughter through her issues.” She confirmed that she attended all of the sessions with Dr Robinson for this purpose. She again denied that she attended Dr Robinson because of her own mental-health symptoms;[91]
[91]T31, L2-14
(dd) She agreed that she had disclosed to Dr Jennette Robinson that she had been a victim of child sexual abuse. She said that Dr Robinson had asked about her family history and the disclosure was made in that context;[92]
[92]T31, L15-29
(ee) She denied that the trauma that she had been exposed to as a child had become a substantial focus of her sessions with Dr Jennette Robinson;[93]
[93]T34, L22-24
(ff) She agreed that she had made no mention in either of her affidavits of ever having suffered any psychiatric or psychological problems prior to the transport accident;[94]
[94]T34, L27-31
(gg) She agreed that she had not put in her affidavits anything about suffering post-natal depression, seeing a general practitioner for cognitive behaviour therapy in around 1996, nor being referred to see Ms Culkin for counselling in 2005;[95]
[95]T35, L4-13
(hh) She agreed that she had not mentioned in her affidavits that in May 2013, she had been diagnosed with an Adjustment Disorder with Depressed Mood. She qualified this answer by saying “Well, I don’t think I was diagnosed”;[96]
[96]T35, L14-17
(ii) She agreed that she had not mentioned in her affidavits that she had been to see Dr Elhalawani in May 2013 and had a mental health care plan prepared for her at that time;[97]
[97]T35, L18-26
(jj) She agreed that she had not mentioned in her affidavits that in the twelve months prior to the transport accident, she had attended approximately twelve sessions with a psychologist;[98]
[98]T35, L27-30
(kk) She denied that she had left all of these matters out of her affidavits because she wanted to create a false impression that before her daughter’s transport accident, she had never suffered any mental health symptoms or problems;[99]
[99]T36, L1-11
(ll) She was asked why she did not say in her affidavits that in the twelve months prior to Lucie’s car accident, she had been feeling “low and teary” in connection with her daughter’s depression. She said that she did not include those things because she did not think that she had been feeling that way;[100]
[100]T36, L12-20
(mm) When asked if she had “just decided” to leave her attendances on the psychologist out of her affidavit, she replied: “It didn’t have any relation to my situation;”[101]
[101]T36, L21-27; see also T37, L2-17
(nn) She was asked why, in her first affidavit, she had not stated that she had been suffering from feelings of anger in the year prior to Lucie’s accident, and replied: “I don’t’ recall discussing anger with … [the psychologist] in other appointments. I was getting help for my daughter;”[102]
[102]T37, L18-25
(oo) She denied that it was a misleading omission not to explain in that affidavit that she had been seeing Dr Jennette Robinson in the twelve months prior to Lucie’s accident. She denied that she left that out of the affidavit because she did not want the reader of the affidavit to know that in the twelve months prior to Lucie’s transport accident, she had already seen Dr Jennette Robinson on numerous occasions. In response to this, she replied: “That’s not true;”[103]
[103]TT37-38
(pp) She denied that she had left these matters out of her affidavits because she thought it would weaken her prospects of establishing that she had suffered a severe psychiatric injury because of the transport accident;[104]
[104]T38, L18-21
(qq) She was asked why there was no reference in her affidavits to the fact that she had experienced symptoms of depression and anxiety prior to the transport accident. In response to this question, she replied: “There was no depression, there was anxiety but I was not depressed;”[105]
[105]T38, L22-26
(rr) She confirmed that she did not know at any time that she had been diagnosed with an Adjustment Disorder with Depressed Mood;[106]
[106]T39, L20-23
(ss) She agreed that since the birth of her daughter in 1995, she has only ever worked part time;[107]
[107]T40, L15-19
(tt) By the time she finished working part time for Barry Wilson, she was doing about twenty-eight hours a week;[108]
[108]T40, L24-29
(uu) She agreed that in 2014, she was not going into work, because she was taking her long service leave and annual leave that had been owing to her at the conclusion of her job with Barry Wilson;[109]
[109]T41, L5-12
(vv) She agreed that her Bowen therapy practice was in its infancy at the time that the transport accident occurred;[110]
[110]T42, L1-5
(ww) She had been hoping to slowly build up the Bowen therapy business. It was put to her that she was not intending to work in the business full time, to which she replied: “Well, I was, yes;”[111]
[111]T42, L3-7
(xx) It was put to her that she simply did not know whether there was a sufficient demand for Bowen therapy services in Warrnambool to support a Bowen therapist full time, to which she replied: “No, incorrect;”[112]
[112]T42, L11-14
(yy) She agreed that she may have gone to see Dr Jennette Robinson in July 2014 and also in October 2014;[113]
[113]T43, L10-15
(zz) She said it was “technically correct” that she had seen Dr Jennette Robinson a lot less in the nine months after Lucie’s car accident than in the nine months before that event;[114]
[114]T43, L23-31
(aaa) She did not recall telling Dr Jennette Robinson in about 2015 that her business was going well, that she was managing her mood and stress well, and that she was ready to conclude her treatment. She said that she did not recall the last visit with Dr Jennette Robinson;[115]
[115]T44, L5-31
(bbb) She agreed that she may have seen Mr Kingsley from December 2015 until September 2016 and then not again until April 2019. She said she knew there had been a gap in the treatment but she was surprised that the gap was “quite as big as that;”[116]
[116]TT45-46
(ccc) She agreed that she discussed “lots of different things” with Mr Kingsley in the first ten months that she saw him. She agreed that one of the topics was Lucie’s accident and her recovery from her injuries. She also discussed the traumas that she had been subjected to in her childhood. She was asked whether or not Mr Kingsley’s therapy was helpful, to which she replied: “He provided me with strategies, coping mechanisms … He was good;”[117]
[117]T46, L14-28
(ddd) It was suggested to the plaintiff that Mr Kingsley’s treatment led to a “significant improvement” in her mood and daily functioning. To this, the plaintiff replied: “What it did was it gave me the ability to get through situations. I still found things stressful but I was able to manage myself;”[118]
[118]TT46-47
(eee) It was suggested that by July 2016, she had recovered to a significant extent from the distress and anxiety that the transport accident had caused her. To this, she replied:
“No, I was managing … how I was feeling but I still felt all those things, I was just managing it better … I was much better able to manage myself and I continued to take my medication, and so I didn’t need to see him at that point;”[119]
[119]T48, L6-16
(fff) She agreed that in 2016 and 2017, she built up her Bowen therapy business;[120]
[120]T48, L20-21
(ggg) She agreed that when she returned to see Mr Kingsley in April 2019, it was following an incident where her daughter had been on the phone screaming. She said that her daughter’s screaming had triggered the event, because she did not know at the time what the screaming was about and “it just took me straight back”;[121]
[121]T50, L5-21
(hhh) An incident with a client who had mentioned a school teacher who the plaintiff had seen beating a child when she was a little girl, was put to the plaintiff for comment. It was suggested that this encounter with her Bowen therapy client made her angry and anxious. The plaintiff denied this, and said: “Actually, I felt confused;”[122]
[122]T51, L12-31
(iii) It was put to her that this incident set her back “a bit”. To this, she replied: “No, I just needed to sort it out in my head … It came up in the appointment [with Mr Kingsley] but it wasn’t the focus of the appointment;”[123]
[123]T52, L13-22
(jjj) It was suggested to her that these days, her mood is “even” most of the time. To this, she replied: “It’s even because I manage … my emotions;”[124]
[124]T53, L7-13
(kkk) She denied that her depression has been “largely alleviated” by the antidepressant medication that she takes: “No, that’s not true;”[125]
[125]T53, L14-16
(lll) She denied telling Professor Dennerstein that her depression had been “largely alleviated” by the medication. In response to this proposition, the plaintiff replied: “I said it’s been controlled. It hasn’t gone away, it’s controlled by the medication … The medication allows me to function at a level.” The plaintiff was then pressed about the fact that she had told Professor Dennerstein that her symptoms of depression are “largely alleviated” by the medication. Again, she replied: “Well, I would say that’s not true … It controls my moods;”[126]
[126]T54, L1-21
(mmm) The plaintiff said that her mood remains affected by any stress;[127]
[127]T55, L10-12
(nnn) The plaintiff agreed that she had told Professor Dennerstein that “with [her] therapy, [her] mood is even most of the time but is affected by any stress”;[128]
[128]T55, L18-20
(ooo) She agreed that she sees her general practitioner when she needs to get a referral to go and see Mr Kingsley and also to obtain prescriptions for her medication. She agreed that she could go for many months without seeing her general practitioner in connection with mental-health symptoms. She said that this would be “six months at the most”;[129]
[129]TT55-56
(ppp) She is still seeing Mr Kingsley on average every two weeks and occasionally it is every four weeks. It was put to her that it would be more accurate to say that she sees Mr Kingsley roughly monthly. She denied this proposition;[130]
[130]T56, L10-18
(qqq) She agreed that she does not see a treating psychiatrist;[131]
[131]T56, L22-24
(rrr) She agreed that Zoloft is the only medication that she takes for her psychiatric symptoms;[132]
[132]T56, L29-30
(sss) It was suggested to her that for a period of time following the car accident, she had nightmares. She agreed with this proposition. It was suggested to her that the nightmares have now stopped. She disagreed with this proposition. She agreed that she had told Dr Epstein in August 2019 that she had no nightmares at that time She explained that in her view, the nightmares had not stopped. She said:
“What happened was … the nightmares were disturbed sleep … things that I wouldn’t have necessarily associated with … [Lucie’s] accident but they were disturbing dreams, that sort of thing … I’m still having disturbed sleep, I’m having bad dreams.”[133]
[133]T61, L6-29
(ttt) She agreed that the bad dreams are in relation to subjects other than the transport accident;[134]
[134]TT61-62
(uuu) She agreed that when her husband had to go to hospital recently, she found that stressful and anxiety-provoking in the extreme;[135]
[135]T62, L2-7
(vvv) She agreed that by August 2019, she had built up her Bowen therapy practice to the point where she was seeing up to eight clients per week for sixty to ninety minutes each, over three to four days. When asked whether or not it was sometimes more than eight clients a week, she said “I think there might have been one week when there was nine. I didn’t really cope very well with – it just pushed things a bit too far for me;”[136]
[136]T62, L18-26
(www) She agreed that it is normal during Bowen therapy for a therapist to pause the treatment to allow the client’s body to “reset”. She said that during this time, the therapist can either stay in the room with the client or can leave the room. She agreed that it is not uncommon for a therapist to leave the room;[137]
[137]T63, L16-29
(xxx) She agreed that the COVID-19 pandemic had significantly disrupted her Bowen therapy practice and business;[138]
[138]T64, L3-5
(yyy) She has started practising her Bowen therapy again now that the COVID restrictions have lifted. She has had to start her business from “zero” again. Last week, she saw three clients. This week is about the same. She does not work from home anymore. She rents a room at the church;[139]
[139]T65, L4-22
(zzz) She enjoys performing Bowen therapy. She continues working as a volunteer in an opportunity shop one afternoon per week, when she does a four-hour shift. She enjoys that “when I’m there”;[140]
[140]TT65-66
(aaaa) In order to distract herself, in 2019, she began going to opportunity shops most days to look for items;[141]
[141]T67, L3-8
(bbbb) She now only goes to church on a Sunday. She no longer goes to any church-organised social events;[142]
[142]T67, L15-29
(cccc) She did not start accompanying her husband to the football until after 2014. It is something she has done from time to time since 2014, after her husband became an MCC member;[143]
[143]TT68-69
(dddd) In the evenings at home she cooks the dinner. Her husband tends to watch television, but she finds she cannot follow the program due to lack of concentration. When he is watching television, she just “potters” around. They used to watch television together after dinner and had their favourite shows;[144]
[144]T69, L2-14
(eeee) She does not really read magazines, newspapers or books in the evening anymore. She might flick through the local newspaper but does not really read it much. She does not do much reading at all. She does not do much in the way of participating in social media;[145]
[145]T69, L15-26
(ffff) She tries not to listen to music. She turns the radio off if music comes on. She does not listen to music in the evenings;[146]
[146]TT69-70
(gggg) She can do the administration involved with her Bowen therapy business;[147]
(hhhh) At home her husband does the washing. She vacuums the floor “when it gets embarrassing” and she washes the dishes after dinner at night. She has tried to get out and do some walking but other times she does not walk for weeks and weeks at a time.[148]
[147]T70, L29-31
[148]T71, L1-11
34 Under re-examination, the plaintiff gave the following further evidence:
(a) She was asked about her evidence that she enjoys being at the opportunity shop once she gets there. In relation to this, she explained:
“I find it very hard to get myself organised to a point where I can walk out the door and go to my workplace … I always seem to be … not organised at the point when I need to be leaving … I was never like that, I never used to be like that.”[149]
[149]TT71-72
(b) She has described herself in the past as being careful and methodical:
“It was a military organisation, I’d have shopping lists, I’d have the aisles, I’d have everything written down … I don’t do proper shopping trips … I don’t use lists anymore. If I write a list, I’m just as likely as to forget it and lose it at home.”[150]
[150]T72, L9-21
(c) She said that this has been going on since the transport accident but that it is “extreme now”. She used to try to get a “semblance of doing things properly”. She said that she used to try but “now I don’t … it’s just very hit and miss now”;[151]
[151]T72, L22-28
(d) She was asked about the fact that she had described enjoying going to opportunity shops in a “perverse sort of way”. She explained:
“… it was very soothing going into the op shop and wandering around and having an activity where I didn’t actually have to even think about anything but I could kind of look like I was and it was very soothing to just do it.”[152]
[152]T73, L7-15
(e) She explained that what stops her from going out walking is that she just does not think that she can face the world:
“… and I just don’t want to go out and I’ll think of reasons why I can’t go out, like I’ve got to do stuff at home and then I won’t do stuff at home, I’ll be at home but I won’t do stuff, I’ll just be there but I can’t go out and go for a walk … .[153]
[153]TT73-74
(f) Prior to the transport accident, in terms of her reading:
“I’d consume all the newspapers … I used to just read them from cover to cover and … then I would read books. I used to probably read at least one or two a week … and probably have a third one on the go, reading bits and pieces as I was reading the other ones.”[154]
[154]T74, L5-17
(g) Prior to the transport accident, she enjoyed having music playing while she was working around the house:
“I’d put … the music on that was joyous and uplifting and positive … I used to enjoy how it made me feel … [now] I don’t want to listen to it.”[155]
[155]TT74-75
(h) Prior to the transport accident, church was “most of [my] life … I’d go to church morning and evening on Sundays”;[156]
[156]T75, L9-12
(i) Prior to the transport accident, the plaintiff and her husband used to participate heavily in church social activities on Friday nights and Tuesday nights;[157]
[157]T75, L16-22
(j) Her involvement in the church now is “extremely minimal. There’s no social side to it. I go to the morning service … and … nothing else;”[158]
[158]T76, L6-11
(k) She is unable to sit through a one-hour television program. The problem is her concentration. She finds that she cannot focus on the storyline and she just does not feel interested in that anymore;[159]
[159]T76, L12-19
(l) She said that when her daughter is driving, her “anxiety just goes through the roof”;[160]
[160]T77, L24-28
(m) She confirmed that she still gets flashbacks related to her daughter’s accident a few times a week;[161]
[161]T78, L14-17
(n) She was asked about questions in cross-examination concerning the statement that her mood is “even” most of the time, but is affected by any stress. In relation to this, she explained:
“So, if everything in my world is going well and smoothly, then I cope, and I manage. But as soon as something happens that is out of left field, or not in my usual routine, anything that involves my daughter, my stress levels just go straight through the roof, and then I just don’t function properly at all.”[162]
[162]TT78-79
(o) She said that her stress levels when she is working with the Bowen therapy clients can vary: “If I’ve had too many people in the one day, my stress levels will go through the roof, because I just don’t have time to manage myself … so my stress levels can vary with my work.” She said the way she manages this, if she has a client in the room and she is feeling stressed:
“… then I’ll leave the room. And I can do that because I always explain to my clients that that’s how Bowen therapy [works] … So if I have to leave the room and re-ground myself, or just take some deep breaths, go for a quick walk out in the sunshine, something like that … .”
She said that she would have to resort to this type of mechanism a couple of times a week. Sometimes a couple of times a day. “It’s very variable. A lot depends on what’s happening in my life;”[163]
[163]T79, L3-23
(p) When asked about the description of her mood being “even” with therapy, she explained that she manages her mood or variations in mood by:
“… as soon as possible, I’ll leave the room. I’ll use my breathing techniques; I’ll do the deep breathing. I’ll ground myself. I’ll just look around and remind myself of where I am, think about my surroundings, and just … try and bring myself back into the here and now, instead of letting my mind go off to things to do with my daughter … .”[164]
[164]TT79-80
(q) She was asked about the four episodes of trauma that had occurred in her past and the fact that she had not mentioned these in her affidavit. She explained:
“… because that actually didn’t have any bearing on what’s happening now … they’re in my history, they’re past … they have no bearing on now.”[165]
[165]T80, L7-15
(r) She explained further that it had not even occurred to her to mention those matters when she was swearing her affidavits:
“… because I don’t think about them all the time. They’re things that are just put away in my past … I didn’t think about them at all … they were just in my past … I just got on with my life. I was living my life. They weren’t part of … living my life … prior to the accident.”[166]
[166]TT80-81
Additional evidence in support of the Plaintiff
35 In addition to her own evidence, the plaintiff relied upon an affidavit from her husband, Leigh McDowall. The substance of the affidavit provided by the plaintiff’s husband was as follows:
(a) Mr McDowall and the plaintiff have been together since they were eighteen years old;[167]
[167]Ex P1, p18
(b) When Lucie was involved in the transport accident in May 2014, it was a very difficult time for the family;[168]
[168]Ex P1, p18
(c) Lucie’s accident happened at a time when the plaintiff was in the process of growing her Bowen therapy business. Lucie had gone off to university and he and the plaintiff had started to plan for themselves, for their future;[169]
[169]Ex P1, p19
(d) the plaintiff and her husband were confident that the plaintiff would be able to grow her Bowen therapy business and were happily planning for success at the time of the accident;[170]
[170]Ex P1, p19
(e) the plaintiff had started some advertising and had an advertising schedule ready in respect of her business. She had also been investing in getting her own website up and running. Mr McDowall saw his wife researching this on their computer and listening to seminars about how to undertake this task;[171]
[171]Ex P1, p19
(f) When Lucie was involved in the transport accident, everything was put on hold. The plaintiff had to care for Lucie for twenty-five days in Melbourne. The plaintiff was incredibly strong at a time which was “horrific”. The injuries that Lucie had and the pain that she was in, was horrible. Lucie would scream in pain. It was horrible seeing her so injured and yet being aware that they were lucky to still have her;[172]
[172]Ex P1, p20
(g) When Lucie was well enough to go back to university, Mr McDowall noticed that his wife was struggling. She took a few jobs in Bowen therapy, but it certainly did not look like she was going to grow her business in the way that she had planned;[173]
[173]Ex P1, p20
(h) Following the transport accident, Mr McDowall noticed that the plaintiff was anxious about the phone ringing, but desperate to answer it to see if it was Lucie. Lucie is their only child. The plaintiff was a devoted mother. Mr McDowall knew that the plaintiff was not herself following the transport accident, but thought that she would be okay. In hindsight he realises that the plaintiff was functioning but probably just doing what she had to do, to “get through the day”;[174]
[174]Ex P1, p20
(i) His wife has become hypervigilant about where Lucie is at any time. It is difficult to cope with because it is not rational, but he can see the plaintiff has to do it;[175]
[175]Ex P1, pp20-21
(j) On one occasion there was a phone call from Lucie where Lucie was screaming on the phone. Mr McDowall noticed his wife’s reaction when she heard the screaming and he saw her “crumble”. It was like “she just melted down to the floor”. While Mr McDowall was trying to talk to his daughter and to tell his wife that everything was alright, his wife got up and “bolted”;[176]
[176]Ex P1, p21
(k) Following this incident, the plaintiff was a “mess” for days;[177]
[177]Ex P1, p21
(l) Since the transport accident, and particularly since that phone call, Mr McDowall has noticed that his wife is very fragile. She is now easily upset and he has found himself watching her. They have been together a very long time. They are best friends as well as husband and wife and know each other very well. Sometimes he can see that she is just about to crumble, even though she does not tell him;[178]
[178]Ex P1, p22
(m) Mr McDowall has noticed that the plaintiff is reluctant to go out much at all. As a result, he feels that they have become isolated. Prior to the accident, he and his wife would regularly go to a church study group on a Tuesday night, to church on Sunday and then worship on Friday nights. Since the plaintiff has been struggling to cope, they have only gone to the Sunday service at church and very irregularly on the other days;[179]
[179]Ex P1, p22
(n) Mr McDowall and the plaintiff would also dine out every few weeks at their favourite local restaurants. They used to go out for tea at the suggestion of either one of them. Now it seems they only go out when Mr McDowall suggests it because it gets to a point where they have not been out for months. Prior to the transport accident, the plaintiff would regularly suggest that they go out;[180]
[180]Ex P1, p22
(o) Mr McDowall and his wife used to also go to a local café for coffee all the time prior to the transport accident. They now have a coffee machine so do not tend to go out for a coffee regularly. He feels like the coffee machine has become a “good excuse” for the plaintiff to go out less. The plaintiff has a small group of friends that she continues to see once a month, but she no longer sees friends from church and from her old workplace regularly;[181]
[181]Ex P1, p23
(p) The plaintiff always enjoyed reading prior to the transport accident and Mr McDowall and the plaintiff would often read books at the same time. He has now noticed that the plaintiff only reads a few pages and then stops;[182]
[182]Ex P1, p23
(q) The plaintiff now stays up late and does not come to bed until Mr McDowall is asleep or just drifting off. Prior to the accident, it was always the plaintiff that was ready for bed first. Mr McDowall has noticed that the plaintiff does not fall asleep during the evening anymore and does not come to bed with him. He finds this upsetting as it is a big change from what was a long-time habit of going to bed at the same time. He worries that this may in part be because she does not want to be intimate with him. For a time after the phone call from Lucie, Mr McDowall and his wife had no sexual relationship. Their intimate relationship has resumed, but with much less frequency. He worries that it is only for his benefit that the plaintiff participates, because she feels that she should, rather than she actually wants and enjoys their intimate relationship. He has noticed a change in her libido;[183]
[183]Ex P1, pp23-24
(r) Mr McDowall has noticed that the plaintiff’s sleep pattern “is all over the place” and that she will be awake during the night. They still get up together at the same time, but he has noticed that the plaintiff “gets by on a lot less sleep” than she used to;[184]
[184]Ex P1, p24
(s) Mr McDowall has noticed that the plaintiff does not talk about how she is feeling because she knows that the transport accident was and is hard for him too. Even though she does not talk about it, he sees that she is struggling. He thinks that she “keeps her cards close to her chest”, especially regarding how she is coping with providing Bowen therapy to clients. He has heard her on the phone to two customers wanting to see if they could get appointments and she has tried to put them off for a while. He thought it was extraordinary to turn people away, because she has always loved to help people;[185]
[185]Ex P1, pp24-25
(t) Mr McDowall thinks that it is sad that the plaintiff is so unwell and she is unable to help people, because that is what drove her in the past. He asked her why she had turned customers away and she said that she felt she could not do it. This is very different to the way that the plaintiff was before the accident. She used to get excited to get a new client or new referral source. Mr McDowall does not hear that excitement from her now;[186]
(u) Mr McDowall feels like the plaintiff is “just treading water. Just poking along.” In his view, she does a good job at presenting her best face to the world when they are at church or with their daughter. He can see that this is exhausting for her when they get home.[187]
[186]Ex P1, p25
[187]Ex P1, p25
Medical evidence
36 There were numerous medical reports contained in the tendered material.
37 Both sides filed reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
38 The plaintiff relied on two reports from her psychologist, Mr Murray Kingsley, the first dated 17 August 2016 and the second dated 30 April 2020. In the first report, Mr Kingsley noted that the plaintiff presented to him in an extremely anxious state on 9 December 2015. He noted that on her intake form she wrote:
“I am here because … I need help to resolve my problem. My daughter (20) was involved in a near fatal MV accident 18 months ago. I spent a month in Melbourne with her first in the Alfred IC unit and then in a rehab hospital. We then came home and I thought everything was OK but now at times I have memories of things that happened and I get teary and panicy (sic) and sometimes it can be very awkward and embarrising (sic). Sometimes I feel that my brain is ambushing me …”[188]
[188]Ex P1, p31
39 At that time, Mr Kingsley thought that the plaintiff met the criteria for Chronic PTSD, previously in remission.[189] He thought that her prognosis was improving and that she was responding well to treatment.[190]
[189]Ex P1, p33
[190]Ex P1, p33
40 In the second report, Mr Kingsley noted that the plaintiff had presented on 24 April 2019 with “crisis care needs” in response to an exacerbation of her pre-existing PTSD. He reported that she had been practising strategies to “make spaces” in her relationship with her daughter and that this was resulting in a gradual reduction in her hyperarousal.[191] At that time, Mr Kingsley noted that the plaintiff exhibited ”hand-wringing, some mental confusion, memory loss and labile emotional responsiveness”.[192]
[191]Ex P1, p51
[192]Ex P1, p53
41 Mr Kingsley was of the view that the plaintiff was then suffering from Chronic Complex PTSD, periodically in remission. He explained that the term “complex” describes a more severe and long-term condition that can occur after prolonged and repeated trauma, particularly in childhood. Mr Kingsley thought that while the plaintiff was at that time making good progress, her prognosis remained “mixed”. He said that the plaintiff was working steadily towards further periods of remission, but that the scientific literature on complex PTSD indicates that a sufferer may remain susceptible to further exacerbation of the underlying Anxiety Disorder. He noted that the plaintiff had withdrawn from some of her former engagement in community and church activities. Her recreational interests are very constrained and she has more recently had periods where she has been unable to manage triggerpoints for her own suffering in the stories of her patients.[193] The symptoms from which the plaintiff suffers as recorded by Mr Kingsley are:[194]
[193]Ex P1, p59
[194]Ex D1, pp44,45, 55 and 56
(a) re-experiencing of the traumatic events involved with her daughter’s hospitalisation including persistent rumination and flashbacks, which are unable to simply be blocked out once they have started. Her apprehension for her daughter’s safety can become periodically debilitating;
(b) disturbed sleep;
(c) constantly attempting to keep busy to avoid reminders of the trauma, leading to exhaustion;
(d) experiencing a state of anxious arousal in the form of feeling “twitchy” and “shaky” and like “time has become distorted, usually slowing down”;
(e) hypervigilance manifest in clenching her teeth;
(f) feeling distressed and agitated and being easily startled with feelings of heart pumping unpleasantly and experiencing shortness of breath;
(g) avoidance of social situations.
42 The plaintiff relied upon a report dated 17 March 2020 from her general practitioner, Dr Campbell McKellar. In that report, Dr McKellar said that the plaintiff had previously been diagnosed with PTSD and that she is currently treated with the antidepressant, Zoloft, 50 milligrams daily. He thought that the plaintiff would be likely to require ongoing review by her psychologist, Mr Kingsley, as well as continuing to take the antidepressant medication. He thought that the plaintiff would be likely to find it difficult to manage a high-stress and high-pressure job with long hours, as that may exacerbate her PTSD. He also thought it was not advisable for her to be participating in recreational pursuits that increase her risk of being in a car accident.[195]
[195]P1, p49
43 The plaintiff was reviewed for medico-legal purposes by Dr Michael Epstein, psychiatrist, on 21 August 2019. In a report of the same date, Dr Epstein was of the opinion that the plaintiff has a chronic PTSD arising from her daughter’s accident on 4 May 2014. He noted that the plaintiff thought her daughter was going to die and that thought has remained with her. He said that she spent the first month or so supporting her daughter and it was only after that time that she began dealing with her own mental state. He noted that since that time, the plaintiff has had recurrent intrusive thoughts about seeing her daughter in hospital, distressing thoughts about what could happen, increased concerns with regard to her daughter’s safety and that she is hypervigilant, emotionally withdrawn and has a sense of bleakness. He noted that she had also developed panic attacks that occur frequently. Dr Epstein was of the view that the combination of these matters had led to the development of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said that while the plaintiff had experienced previous traumatic events, she believed that they did not play a part in her current situation. Dr Epstein could see no evidence that they did. He said that she is now working on a part-time basis as a Bowen therapist and probably working to her maximum capacity given her current mental state. He said that her quality of life has diminished significantly as a result of the accident. He thought that she should continue psychological counselling for at least the next twelve months, possibly longer, and would need to continue taking the antidepressant medication over this period of time.[196] Dr Epstein was of the opinion that the plaintiff’s condition is “stable” and that her prognosis for improvement is “very limited as it is now more than five years since this accident”.[197]
[196]Ex P1, p46
[197]Ex P1, p47
44 The symptoms from which the plaintiff suffers as recorded by Dr Epstein are:[198]
[198]Ex P1, pp42-43
(a) difficulty getting to sleep and sometimes, difficulty staying asleep. This is experienced approximately three to four times per week;
(b) intrusive thoughts and flashbacks two or three times per week, which she finds distressing;
(c) mild panic attacks most days and severe panic attacks at least every two weeks. These attacks are manifest in palpitations, shortness of breath, light-headedness, “spinning out”, and high levels of anxiety;
(d) becoming upset by hearing ambulance sirens and helicopters. She avoids going to hospitals. She avoids television news, police and medical shows on television and is upset when she hears of disasters or tragedies;
(e) continual worrying about her daughter’s safety;
(f) she feels “flat” 60 to 70 per cent of the time;
(g) a loss of self-esteem and confidence;
(h) feelings of boredom, restlessness, frustration, isolation and irritability;
(i) feelings of exhaustion, agitation and loss of motivation;
(j) a reduction in social activity;
(k) problems with memory and concentration;
(l) loss of interest in her grooming; and
(m) reduction in sexual libido.
45 The plaintiff was reviewed for medico-legal purposes by Professor Lorraine Dennerstein, specialist psychiatrist, on 29 October 2020. In a report dated 3 November 2020, Professor Dennerstein said that as a result of the transport accident on 4 May 2014, the plaintiff developed a relapse of a Major Depressive Disorder (now in remission with treatment) and had also developed PTSD. She thought that the plaintiff had suffered from a Generalised Anxiety Disorder since the traumas of her childhood, but that this was at a milder level other than when increased by stressors. She thought that the motor accident had exacerbated the Generalised Anxiety Disorder and triggered memories of previous traumas which then also contributed to the PTSD. Professor Dennerstein thought that the plaintiff required ongoing psychological treatment and should continue taking her antidepressant medication, which is presently prescribed by her general practitioner. She thought that the plaintiff’s symptoms had largely stabilised and she did not expect any further improvement in the plaintiff’s condition.[199]
[199]Ex P1, p81
46 The symptoms from which the plaintiff suffers as recorded by Professor Dennerstein are:[200]
[200]Ex P1, p72
(a) continuing to have flashbacks to her daughter screaming after the accident. This occurs a few times per week. She tries to distract herself by using breathing techniques;
(b) continual feelings of anxiety in relation to her daughter, especially when her daughter is travelling long distances. The accident remains in the “forefront” of her mind;
(c) feelings of self-blame for her daughter’s accident;
(d) interrupted sleep, with dreams where she feels that she is “not in control”. These dreams occur two to three times per week and make her feel anxious, teary and unsettled;
(e) managing her work duties by modifying the manner in which she performs that work. Sometimes she will need to leave the room when she has a Bowen therapy client so that she can walk outside and “get herself grounded;”
(f) feeling easily stressed by small things;
(g) easily feeling angry if things “go wrong”;
(h) having clenched teeth and feeling tense most of the time;
(i) experiencing a loss of control over the anxiety she feels about traumas which occurred earlier in her life, leading to panic, anxiety and increased heartrate;
(j) experiencing social withdrawal;
(k) experiencing difficulties with concentration.[201]
[201]Ex P1, p74
The Defendant’s medical evidence
47 The plaintiff was examined for medico-legal purposes by Associate Professor Peter Doherty, consult psychiatrist, on 7 August 2020. Associate Professor Doherty provided three reports in the Defendant’s Court Book, the first dated 4 October 2020, the second dated 27 October 2020 and the third dated 9 November 2020.
48 In the report dated 4 October 2020, Associate Professor Doherty expressed the opinion that the plaintiff was suffering from a Major Depressive Disorder that developed in the context of the transport accident and its consequences. He said that the plaintiff was a psychologically-vulnerable person before the transport accident. He noticed that she had suffered a Depressive Disorder after the birth of her child and that there was a persistent anxiousness thereafter. He said that the plaintiff was and is an anxious person, often feeling depressed, concerned about her daughter before the transport accident and was easily stressed. He said that the transport accident was a sufficient psychological stressor to cause her to develop a Depressive Disorder. He said that disorder has persisted in “a mild form”.[202]
[202]Ex D1, p20
49 Associate Professor Doherty was of the opinion that immediately prior to the transport accident, there was no fully diagnosable Major Depressive Disorder. He said that “[t]here is in the … [plaintiff] a propensity to deteriorate under stressful circumstances and that occurred following and as a result of the transport accident”.[203] He said that the plaintiff’s current psychiatric condition is not resolved. He noted that the plaintiff was suffering from “the potential to deteriorate with depression before the transport accident”.[204] Associate Professor Doherty was of the opinion that in the future, the plaintiff would continue to suffer from her psychological vulnerabilities and will be prone to be easily stressed, mildly dysthymic or an unhappy person, forever worried about her daughter’s welfare. He thought that the persistent downturn in mood which the plaintiff now suffers does interfere with her capacity to work. He thought that the plaintiff’s maximum hours of work would be no more than half time, based on her pre-existing vulnerabilities, anxieties, depressive feelings and psychological fragilities. He expressed the opinion that if the transport accident had never happened, the plaintiff’s maximum hours of work as a Bowen therapist would have been half-time hours. He did not provide any reasoning for this opinion.[205]
[203]Ex D1, p20
[204]Ex D1, p21
[205]Ex D1, p21
50 In his two supplementary reports, Associate Professor Doherty commented on additional material that had been supplied to him. This material did not lead him to change his ultimate diagnosis.[206] On the basis of the material supplied, Associate Professor Doherty concluded that prior to the transport accident, the plaintiff was suffering from an Adjustment Disorder.[207]
[206]Ex D1, pp26-33
[207]Ex D1, p32
51 The symptoms from which the plaintiff suffers as recorded by Professor Doherty are:[208]
[208]Ex D1, p16 and 17
(a) disturbed sleep and loss of quality of sleep;
(b) dreams of feeling a loss of control;
(c) a feeling that she “muddles her way through the day” and that “stuff does not get done”, even though she is responsible for the household chores. She used to be “orderly and methodical, like a military operation …”;
(d) a loss of joy in life and in relation to activities that she used to enjoy, such as reading and listening to music;
(e) a loss of interest in socialising;
(f) feelings of being “drained and exhausted” after engaging in daily life;
(g) feeling “sad all the time”;
(h) experiencing high levels of anxiety and stress, manifest in an increase in heart rate, sweaty hands and a feeling that her throat is closing up. She also clenches her teeth;
(i) constant feelings of anxiety about her daughter’s safety;
(j) panic episodes which can be frightening and are difficult to deal with when she is working;
(k) reduced concentration and variable memory. A feeling that she “cannot think things through properly”;
(l) a loss of focus and a loss of her listening skills.
52 The defendant relied upon a letter from Dr Dina Elhalawani, general practitioner, dated 30 May 2013 and a GP Mental Health Care Plan that had been prepared by Dr Elhalawani of the same date. In her letter, Dr Elhalawani stated that she had diagnosed the plaintiff as suffering from an “adjustment disorder with depressed mood due to her only daughter going through some depression”.[209] In the Mental Health Care Plan, Dr Elhalawani noted that the plaintiff’s daughter was struggling with depression –
“… and that is making it hard for both … [the plaintiff] and her husband to cope, they are both very supportive [of] each other and … their daughter but finding that coping with their daughter[’]s (sic) condition is slightly starting to affect their relationship together.”[210]
[209]Ex D1, p4
[210]Ex D1, p5
53 The plaintiff’s mood was described as “… low teary m[o]st of times (sic), lots of feeling of anger/guilt”.
54 The plaintiff’s sleep was described as poor, as was her appetite. Her motivation and energy levels were described as being “normal”, as was her judgement. Under a heading “Anxiety Symptoms”, Dr Elhalawani recorded that the plaintiff’s symptoms were “Normal lots of anger feeling towards her girls school and maybe towards self for not realising what her daughter is going through earlier”.[211] Dr Elhalawani recorded that the plaintiff’s goal for seeking assistance was “better coping with the family stress and looking after herself”.[212]
[211]Ex D1, p7
[212]Ex D1, p8
55 The defendant relied upon a letter from Dr Jennette Robinson, psychologist, to Dr Yvonne Robinson, dated 6 February 2015. In that letter, Dr Jennette Robinson stated:
“Thank you for referring [the plaintiff] for the treatment of chronic stress/trauma in relation to a motor vehicle accident involving her daughter. … [The plaintiff] presented with feelings of being defeated, low confidence to manage life situations, anxiety regarding daughter travelling in cars and how she was coping with stress, and her daughter’s risk taking about her psychological health and progress after the accident … .
… [The plaintiff] had indicated that she has developed strategies for dealing with stressful situations (e.g. removing self from stressor, self-regulation–a better sense of control, awareness of threshold for stress), she knows herself better now … [The plaintiff] feels more confident about her daughter’s health and situation. Overall … [the plaintiff] states she has gained a better understanding of herself, has developed a respectful relationship with herself [as] opposed to being critical and somewhat harsh in her self-talk. Through the use of strategies provided (assertive communication) has gained an inner strength and more assertive. … [The plaintiff] has indicated she is ready to conclude her treatment … .”[213]
[213]EX D1, p10
The issues
The Plaintiff’s credit
56 The Plaintiff’s credit was tested thoroughly during the hearing of this matter.
57 For example, as set out above, the plaintiff was extensively cross examined in relation to her previous psychological history, including post-natal depression which she suffered for a number of years following the birth of her daughter. She was further cross-examined about an adjustment disorder with depressed mood, from which the notes indicated that she suffered in the wake of learning of problems her daughter was experiencing during her VCE year. She was pressed in relation to the effect of other significant life stressors, including having been a victim of sexual abuse when she was a child. It was suggested to her that prior to the transport accident, she had neither the intention to nor the prospect of working full-time as a Bowen Therapist.
58 The plaintiff’s responses to these matters have been set out in detail above.
59 The defendant argued that I should find that prior to the transport accident on 4 May 2014 and leading up to that time, the plaintiff was suffering from a psychiatric condition, either in the form of a depressive condition and/or an intermittent PTSD. The defendant criticised the plaintiff’s refusal under cross-examination to acknowledge that she was suffering from any psychological symptoms in May 2013, despite the fact that she acknowledged that a mental health care plan had been prepared for her at that time, and that she had subsequently attended on Dr Jennette Robinson, psychologist. The defendant submitted that the plaintiff’s failure to disclose in her affidavits her psychiatric and/or psychological symptoms in and from May 2013 and her attendance at approximately twelve sessions with Dr Robinson over six to nine months, commencing around May 2013, is –
“… particularly significant because of how close in time it is to the transport accident in May 2014 as well as the large number of attendances on the psychologist in the 12 months before the transport accident.”[214]
[214]Defendant’s written outline of closing submissions, paragraph 10
60 I find that prior to the transport accident, the plaintiff was suffering from a pre-existing psychological condition in the form of an Adjustment Disorder with Depressed Mood, together with a Generalised Anxiety Disorder, mild in nature. However, I do not accept that the plaintiff lacked credibility, merely because in her evidence, she had a different interpretation of the significance to her of the attendances on Dr Elhalawani and Dr Jennette Robinson in and after May 2013. The plaintiff’s clear and consistent evidence about these events is summed up in the following answer which she gave under cross-examination in relation to this issue:
“… I said to … [Dr Elhalawani] that we needed strategies, we needed to be able to help our daughter, our daughter was struggling. We needed help so that we could help our daughter … our family was [not] functioning. There was stress because our daughter…had the situational depression and our strategy was to get as much help as we could to guide us to help [Lucie] … .”
61 As set out above, the plaintiff repeated evidence to this effect on numerous occasions during cross-examination. She could not be shaken from this position. She said that the reason she attended Dr Jennette Robinson was “so that I could get strategies for helping me. She was going to educate me in helping me to help my daughter through her issues … .” She said that she attended all of the session with Dr Robinson for this purpose. Dr Jennette Robinson was not required to attend for cross-examination. No evidence to the contrary was led by the defendant.
62 The content of the mental health care plan to an extent corroborates the plaintiff’s evidence, where it states, under the heading “Personal History:”
“… daughter seems to struggle with depression and that is making it hard for both … [the plaintiff] and her husband to cope … .”
63 Under the heading “Goal,” the following information is recorded:
“… Better coping with the family stress … .”
64 The plaintiff consistently maintained that she was unaware that any diagnosis of a psychological nature had been made in May 2013. She said that she did not read the letter of referral from Dr Elhalawani to Dr Jennette Ms Robinson. When asked under cross-examination why she had failed to refer to this diagnosis in her affidavit material, she replied: “Well, I don’t think I was diagnosed”.
65 I note that Dr Epstein specifically considered the impact of the early trauma from which the plaintiff had suffered. He recorded that the plaintiff told him that she believed that these events played no part in her current situation. Dr Epstein’s opinion was that he could see no evidence to the contrary.
66 As to her prospects and intention prior to the transport accident in relation to developing her Bowen therapy practice, the plaintiff’s evidence, as corroborated by her husband, was that she had intended to work full time in this area. She rejected the suggestion that there was insufficient demand for Bowen therapists in Warrnambool to support a full-time practice. The plaintiff and her husband both described the fact that since the transport accident, the plaintiff has refused to take on clients who were trying to make appointments with her. No evidence to the contrary of any of these matters was led by the defendant.
67 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that while there were some inaccuracies and inconsistencies in her evidence, she was, overall, a cooperative witness who did her best within her present psychiatric presentation, to give accurate responses to the questions asked of her.
68 I find that the plaintiff’s account of events has remained constant throughout the period during which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to the Court. I also find that the plaintiff’s account of events is largely corroborated by the evidence of her husband, who was not cross-examined.
69 I have considered the omissions from the plaintiff’s affidavits in relation both to her pre-existing psychological condition and the previous trauma she had experienced in her life, together with her evidence in relation to these matters as it emerged under cross-examination. The manner in which the evidence in relation to these issues emerged during the hearing was most unsatisfactory.
70 Despite these difficulties, I am unable to conclude that the plaintiff deliberately misled the Court in relation to these or any other matters. After a consideration of all of the evidence and, in particular, the evidence of the plaintiff as corroborated by the affidavit of her husband and the medical notes and reports, I consider that overall, she was a credible witness, in the sense of being a truthful person.
Stoic Plaintiff
71 Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff is somewhat stoic in relation to her condition.
72 Despite the issues that she has suffered constantly since the accident, she has continued to work on developing her Bowen therapy practice and also volunteers one afternoon per week in an opportunity shop. I accept that this has occurred, even though in performing this work, the plaintiff is often unable to avoid activities which cause her increased stress and anxiety.
Compensable injury
73 The details of the occurrence of the accident and its aftermath for the plaintiff are not in dispute.
74 Having regard to all of the relevant evidence, as set out above, I find that prior to the transport accident, the plaintiff suffered from an Adjustment Disorder with Depressed Mood,[215] together with a Generalised Anxiety Disorder, mild in nature.[216] These issues necessitated an initial visit to her treating general practitioner, followed by up to twelve sessions with a psychologist, but no prescription of medication. It is clear from the content of the mental health care plan prepared on 30 May 2013, that at that time, the plaintiff was experiencing low mood and anger and/or guilt about not realising what her daughter had been going through. Her sleep was described as “poor”. Her anxiety symptoms were described as “normal”. Her appearance was described as “normal, well presented and groomed”. Her thinking, perception, cognition, concentration, memory, insight, orientation, judgment, motivation and energy levels were all described as “normal”. When pressed about an entry which indicated that the plaintiff may have been “teary [most of the time],” the plaintiff agreed that while she may have had tears in her eyes, she was not teary “most of the time”. As set out above, in response to this line of questioning, she said “No … I was functioning. I was working, I was doing everything that I would normally do ...”. Taking account of this evidence, I find that the plaintiff’s pre-existing psychological issues did not result in any adverse impact upon the plaintiff’s ability to work, her activities of daily living or her enjoyment of life in any permanent way.
[215]Ex D1, Mental Health Care Plan (p6); Report of Associate Professor Doherty dated 9 November 2020 (p32)
[216]Ex P1, Report of Profession Dennerstein (p81)
75 Having considered all of the medical evidence from both treating professional and medico-legal experts from both sides, the weight of the evidence satisfies me that as a result of the transport accident, the plaintiff developed a Major Depressive Disorder, together with PTSD. These conditions constitute a relevant “mental disturbance or disorder” for the purposes of the Act.
Is the compensable injury permanent for the purposes of the Act?
76 Having considered the relevant reports, in particular those from Mr Kingsley,[217] Dr Epstein,[218] Dr McKellar,[219] Professor Dennerstein[220] and Associate Professor Doherty,[221] I find that the plaintiff is likely to continue to suffer from the injuries as set out above, which were sustained as a result of the transport accident, for the foreseeable future. Given this, I find that those injuries are permanent for the purposes of the Act.
[217]Ex P1, p59
[218]Ex P1, p47
[219]Ex P1, p49
[220]Ex P1, p81
[221]Ex D1, p21
Are the consequences to the Plaintiff of the transport accident “serious”?
77 Having considered all of the evidence, I find that by reason of the transport accident alone, the plaintiff has suffered an exacerbation of a pre-existing mental disturbance or disorder, which exacerbation has resulted in the plaintiff suffering from the following consequences:
(a) constant feelings of high levels of anxiety and stress, manifest in an increase in heart rate, sweaty hands and a feeling that her throat is closing up;
(b) constant feelings of anxiety about her daughter’s safety, especially when she knows that her daughter will be driving long distances;
(c) mild panic attacks most days and severe panic attacks at least every two weeks. These attacks are manifest in palpitations, shortness of breath, light-headedness, “spinning out”, and high levels of anxiety. She finds these panic attacks frightening and difficult to deal with when she is working;
(d) flashbacks of seeing her daughter in the ICU. These occur about two to three times per week and cause her feelings of distress and agitation;
(e) increased difficulties with her sleep. As set out above, prior to the transport accident, the plaintiff’s sleep was described as “poor”. However, since the transport accident, I find that the plaintiff has difficulty in getting to sleep, frequently wakes up feeling anxious and panicky during the night and then has difficulty returning to sleep. She gets frustrated and angry at being unable to sleep. When she awakes in the morning, she is in a state of anxiety
(f) experiencing hypervigilance, leading to teeth clenching and feeling tense most of the time;
(g) the need to continue seeing a psychologist on a fortnightly basis;
(h) the need to take 50-milligram Sertraline on a daily basis, leading to side effects from taking that medication;
(i) the need to utilise breathing techniques to control her feelings of panic and anxiety.
(j) being easily startled with feelings of her heart pumping unpleasantly and experiencing shortness of breath;
(k) continuing to be upset and distressed at loud noises, including ambulance sirens and helicopters. She avoids going to hospitals;
(l) a loss of self-esteem and confidence;
(m) suffering from anxiety and upset if she hears arguments or raised voices.
(n) feelings of exhaustion, agitation and loss of motivation;
(o) reduced concentration and variable memory. A feeling that she “cannot think things through properly”;
(p) a loss of interest in socialising;
(q) feelings of boredom, restlessness, frustration, isolation and irritability;
(r) feeling that she “muddles her way through the day” and that “stuff does not get done”, even though she is responsible for the household chores. She used to be “orderly and methodical, like a military operation …;”
(s) feeling “drained and exhausted” after engaging in daily life;
(t) feeling “sad all the time”;
(u) loss of interest in her grooming;
(v) loss of interest in going out to dinner with her husband. She now prefers to stay home where she “feels safe”;
(w) reduced sexual libido;
(x) needing to manage her work duties by modifying the manner in which she performs that work. Sometimes she will need to leave the room when she has a Bowen therapy client, so that she can walk outside and “get herself grounded”. Before clients arrive, she becomes anxious. She tries to go for a walk near to where her rooms are located. If there is no gap between her clients, she tries to get a moment to breathe deeply to calm herself and takes breaks during the treatment. In these breaks, she works hard on calming herself. She now avoids taking new clients;
(y) difficulty getting to appointments and other commitments on time, as she feels panicked and anxious beforehand. She now feels overwhelmed at the need to perform even simple tasks, such as getting to her shift at the opportunity shop. She regularly arrives at the opportunity shop late, due to her feelings of anxiety and panic. At the end of her shift, she is exhausted and drained;
(z) experiencing a loss of control over the anxiety she feels about traumas which occurred earlier in her life, leading to panic, anxiety and increased heartrate;
(aa) a loss of joy in life and in relation to activities that used to enjoy, such as reading and listening to music. She feels a sense of loss that she no longer has the ability to enjoy music and reading, as these were important parts of her life before she suffered from her current injuries;
(bb) a loss of focus and a loss of her listening skills.
78 In Haden Engineering Pty Ltd v McKinnon,[222] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[223] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[224]
[222](2010) 31 VR 1
[223](Supra) at paragraph [9]
[224](Supra) at paragraph [12]
79 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness.
80 An analysis of the evidence clearly demonstrates that by reason of the consequences of her mental disturbance or disorder, many aspects of the plaintiff’s life have been adversely affected, including her activities of daily living, her ability to sleep, her ability to socialise, her ability to manage her domestic chores, her ability to organise herself, her ability to concentrate and her ability to engage in activities which she previously used to enjoy. In addition, her injury has adversely impacted on her relationship with her husband.
81 Because of her mental disturbance or disorder, her ability to work has been adversely impacted on a daily and continuing basis. She has had to change the manner in which she performs her work. Even with these modifications, she endures panic attacks, stress and anxiety at work and experiences exhaustion at the end of the working day. All of the medical experts agree that the plaintiff does not have the capacity to engage in this work on a full-time basis. Thus, her desire to develop her Bowen therapy business into a full-time practice, has been permanently and adversely affected.
82 In Kelso v Tatiara Meat Co Pty Ltd,[225] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[226]
[225][2007] VR 592
[226] (ibid) at paragraph [199]
83 Although that case was concerned with a physical injury, the observation as to what constitutes a “very considerable” consequence has application in this case. Thus I find that similar to the endurance of chronic pain, as a result of the transport accident, the plaintiff presently endures symptoms of the mental disturbance or disorder which impact every aspect of her life each day, from her ability to socialise to her ability to run her household. Her anxiety is best described as impacting every aspect of her functioning to the point where she no longer enjoys day-to-day activities such as watching television or listening to music. These symptoms were a prominent feature of the plaintiff’s case before this Court. She deposed to those matters in each of her affidavits and was cross-examined about them. Further, in order to control her symptoms, the plaintiff is required to take daily medication in the form of Sertraline 50 milligrams, which medication has side effects significant enough that the plaintiff has declined to increase her dosage, even though that has been recommended due to the persistence and severity of her symptoms. I find that these symptoms alone constitute consequences which are “very considerable”.
84 In addition, as set out above, the plaintiff endures permanently interrupted sleep, constant tension and teeth clenching, a loss of self-esteem and confidence and a decrease in her sexual libido, which has adversely affected her relationship with her husband.
85 The fact that since the transport accident the plaintiff has been prepared to keep working, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[227]
“… it would be unfortunate, and in [our] view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned … [her]self to … [her] injury.”
[227][2008] VSCA 260 at paragraph [3]
86 Indeed, I find that for the plaintiff, who is a woman who prior to the transport accident had a desire to develop her own full-time Bowen therapy practice after expending a considerable amount of effort to become qualified, the prospect of being unable to pursue more than part-time work in the future due to injury, is a very significant consequence in and of itself.
87 Taking into account all of the evidence, I am satisfied that the constellation of pain and suffering consequences of the aggravation of the plaintiff’s pre-existing mental disturbance or disorder, which aggravation occurred as a result of the transport accident, are “severe” and thus satisfy the relevant test for “serious injury” as set out in the Act.
Conclusion
88 As set out above, I am satisfied that as a consequence of the transport accident which occurred on 4 May 2014, the plaintiff has suffered a “serious injury” in the form of a severe psychiatric injury, as that term is defined in the Act. The application is granted.
89 I will hear the parties on the question of costs.
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