Megally, Joseph v Transport Accident Commission
[2009] VCC 1480
•30 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-02790
| JOSEPH MEGALLY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 and 16 October 2009 |
| DATE OF JUDGMENT: | 30 October 2009 |
| CASE MAY BE CITED AS: | Megally, Joseph v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1480 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986, s.93(4), 93(17) (a) and (c) – plaintiff suffered multiple injuries in a transport accident – whether the consequences of an aggravation of a pre-existing psychiatric condition were severe – extent to which a pre-existing psychiatric condition and other medical conditions contributed to the consequences claimed by the plaintiff – whether an injury to the cervical spine was serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Nowicki Carbone |
| Mr A Hill | ||
| For the Defendant | Mr R Stanley with | Solicitor to the Transport |
| Mr R H Stanley | Accident Commission | |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 16 December 2005.
2 The application is brought pursuant to s.93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under sub-s.(4)(d) unless the court is satisfied that the injury is a serious injury.
3 The definitions of serious injury relied upon by the plaintiff are under sub-s.(17):
“(a) serious long-term impairment or loss of a body function;”
and:
“(c) severe long-term mental or severe long-term behavioural
disturbance or disorder.”
4 The injuries suffered by the plaintiff for which leave are sought are an injury to the cervical spine and a psychiatric injury.
5 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
• The plaintiff gave evidence and was cross-examined; • Dr Atalla, general practitioner, gave evidence and was cross-examined; •
The plaintiff tendered his Court Book (“PCB”) pages 5-10c and 15-74, and from the Defendant's Court Book ("DCB") pages 472 and 435-437: Exhibit A;
• The defendant tendered the following evidence:
ƒ
DCB pages 65-69; 75-80; 93-94; 100-101; 104-105; 112; 121; 124-125; 134; 304; 306; 311; 315; 317-324; 326; 328; 331-351; 364-366; 370; 400-401; 408; 419; 430; 443; 445; 447; 455; 458-459; 462-464 and 478: Exhibit 1;
ƒ Letter from Professor Saling, neuropsychologist, dated 23 June 2008:
Exhibit 2;ƒ Attachment to the medical report of Dr Frei, neuropsychologist, dated
11 August 2008.
The Plaintiff's Background and the Transport Accident
6 The plaintiff was born in Egypt on 8 March 1941. He is now sixty-eight years of age. The plaintiff and his wife have two adult children and three grandchildren.
7 On 16 December 2005, the plaintiff stopped at a set of red lights at the intersection of Bell Street and Banksia Street, Heidelberg. While stationary at the lights on Bell Street, a collision occurred nearby, with the result that one of the cars involved in that collision landed on top of the plaintiff’s car.
8 The plaintiff and his wife were removed from the scene of the collision by ambulance and taken to the Austin Hospital. The plaintiff was admitted as an inpatient. He was discharged on 22 December 2005. He was immediately admitted to the Olympia Private Rehabilitation Centre as an inpatient for the next two weeks.
9 The plaintiff suffered multiple injuries as a result of the transport accident. He suffered injury to his neck, shoulders, and a fracture to his sternum, an injury to his back, and from anxiety and depression.
The Plaintiff's Injuries and Medical Treatment
10 After the plaintiff was discharged from the Olympia Private Rehabilitation Centre he came under the care of Dr Attalla. Dr Attalla has treated the plaintiff since, and in fact continues to treat him.
11 After some time it became evident to the plaintiff that he was suffering persisting pain in his neck and left shoulder. Dr Attalla referred the plaintiff for physiotherapy and hydrotherapy. The plaintiff persisted with that treatment for about one year, finding it of limited value.
12 On 16 December 2005, the plaintiff had an x-ray of a number of parts of his body.[1] On the following day he had a CT scan of his neck which disclosed multilevel spondylosis, but no other abnormality. He also had a CT angiogram, no doubt because he had suffered a displaced fracture of his sternum. No abnormality was detected.[2]
[1] PCB 30
[2] PCB 30A-30B
13 The plaintiff suffered a relapse of his pre-existing psychiatric symptoms. He has had extensive treatment for that psychiatric injury. However, before turning to the nature and extent of that psychiatric injury it is necessary to examine the plaintiff's past medical history.
The Plaintiff's Past Medical History
Psychiatric Problems
14 In the mid 1980s, the plaintiff set up a mixed business which he operated through a shop in Wantirna. The plaintiff operated the business for some six years. The recession hit him very hard. The business failed. As a result the plaintiff was forced to sell his home, and he was bankrupted.[3]
[3] Transcript 50
15 The plaintiff suffered a mental breakdown. He suffered depression for a number of years. In about 1988, he was referred to Professor Tanaghow, psychiatrist, who treated him for about four years to about 2001. He was prescribed Luvox to treat depression. After ceasing his treatment with Professor Tanaghow he remained on Luvox as a precaution.[4]
[4] PCB 6
16 At an early stage in his treatment at the Olympia Private Rehabilitation Centre, the plaintiff was referred to Dr Whitehouse, psychiatrist, for treatment. He first saw her on 3 January 2006.
17 Dr Whitehouse provided a medical report dated 11 January 2008 in which she described seeing the plaintiff on three occasions before he was discharged. As a result of seeing the plaintiff, she made the following observations:
"He described at the time of the initial interview having a cough, neck pain, reduced appetite, diarrhoea, feeling cold all the time, his mood being lowered, reduced enthusiasm for things, reduced self-esteem and not caring any more.
On questioning he reported since the accident he was jumpy, was experiencing intrusive images of the accident and was intolerant of loud noises.
He also described long-standing problems with his mind going blank, and a problem recalling infrequently used words. He described [this] as happening since he turned sixty.
It was evident he had not received his antidepressant, Fluvoxamine, for 5-7 days after his accident, and his wife described increased confusion over this period."[5]
[5] PCB 46. Fluvoxamine is the same as Luvox
18 Dr Whitehouse referred quite extensively to the plaintiff’s pre-existing medical conditions, and also her observations of the plaintiff over the time she treated him. She diagnosed that the plaintiff was suffering from a major depressive disorder with a relapse following the transport accident and his hospital admission.
19 Dr Whitehouse observed that the plaintiff also suffered from cognitive symptoms which he summarised as memory, attention and word finding difficulties which she considered were likely to be secondary to an organic cause, that being epilepsy and/or delirium.
20 At the time when the plaintiff was discharged, Dr Whitehouse considered that his symptoms of depression had improved and stabilised and that no further treatment or investigation was considered necessary. However, she encouraged the plaintiff to undergo neurological assessment.[6]
[6] PCB 47-48
21 The plaintiff returned to see Professor Tanaghow on 6 October 2007. Professor Tanaghow recalled treating the plaintiff for depression. He remarked that the earlier episode of depression had been adequately treated. He referred to the fact that the plaintiff was suffering from epilepsy. He then offered the following opinion:
"In summary, Mr Megally had an episode of depression in 1998, he consulted me then at my East Malvern consulting suite. His depression was adequately treated with antidepressants and mood stabilisers. He recovered fully and by 2001 he was discharged from my service. I understand that his mood remained well until he had an accident in December 2005. Since then his mood has deteriorated and continued to deteriorate until I saw him in October 2007."
22 Professor Tanaghow diagnosed that the plaintiff was suffering from major depression. He advised him to take 300 milligrams of Luvox at night, and 5 milligrams of Diazepam at night.[7]
[7] PCB 49-50
23 The plaintiff candidly admitted that his depression persisted despite the conclusion reached by Professor Tanaghow. He was prescribed Luvox and had been taking it for many years prior to the transport accident.[8]
[8] Transcript 10-11
24 The plaintiff commenced seeing Dr Attalla from about November 2003 at the Bell Street Clinic, and from about June 2007 at the Coburg Family Medical Centre.
25 It would appear that over the time that Dr Attalla has treated the plaintiff, he persisted in prescribing him Luvox to treat his ongoing depression. According to his clinical notes, he increased the plaintiff's dosage from one tablet (100 milligrams) to three tablets (300 milligrams) nocte on 4 April 2008.9
26 Mr Stanley asked Dr Attalla why he increased the dosage of Luvox:
"Q: What was the factor that led to that change in April of last year?--- A: I don't have the notes here, but, as I explained before, when the patient was - a patient is unstable, a case of depression, and they complain about more symptoms in terms of depression, and when we - or, someone comes and gets more depression symptoms, we know about the severity from the effects of the depression on the social life and his family as well."
27 I asked Dr Attalla much the same question:
"Q: Dr Atalla, just so I can understand this, what sort of symptoms is
Luvox designed to treat?---A: Basically symptoms of the depression, and mainly for depressed moods, lack of interest and insomnia - lack of sleep. The patient could lose their appetite, and the whole thing can affect their daily life activity. Q: Well, what sort of symptoms was he showing which saw you prescribe 50 milligrams, and what sort of symptoms was he showing which saw you prescribe 300 milligrams. In other words, what was the difference?--- A: The difference, with Mr Megally, I'll speak in his case, was basically feeling depressed and at the same time affecting his marriage life. Like he starts being very aggressive and he started being frustrated and demanding."[10] [10] Transcript 89
28 Dr Attalla was referred to the clinical notes which disclose that in late 2003 the plaintiff was prescribed 50 milligrams of Luvox. On 21 October 2003, the prescription was changed to 100 milligrams. It remained at that level until he was prescribed 300 milligrams on 4 April 2008.
Other Medical Conditions
29 The plaintiff has suffered a number of quite serious medical conditions in the past which persist.
Hepatitis
30 The plaintiff contracted genotype 4 hepatitis C virus infection, resulting in fibrosis of his liver.
31 He has been treated by Dr Elliott, gastroenterologist. On examination, Dr Elliott found no clinical evidence of decompensation with regard to the plaintiff's liver disease, however, he concluded that testing demonstrated that the plaintiff probably had contracted cirrhosis of his liver secondary to his chronic viral hepatitis C infection.
32 Dr Elliott also noted that the plaintiff's liver disease had never been treated because of the plaintiff's history of depression. It became apparent that because of his co-morbidity of depression, other medical problems and his age, that Dr Elliott considered that treatment by way of medication was not appropriate.[11]
Epilepsy
[11] DCB 465
33 The plaintiff developed epilepsy which appears to have troubled him for many years. It was present well before the transport accident occurred.
34 Dr Rezk, general practitioner, was treating the plaintiff for his epilepsy in 2005. In a letter of referral to a Dr McCrory, neurologist, at the outpatient clinic at the Box Hill Hospital, she referred to the plaintiff's past history which included renal stones in 1980; depression since 1996; diabetes since 2003; epilepsy since 2003 and hypercholesterolaemia since 2004.
35 Dr Rezk also referred to a large quantity of medication which the plaintiff was taking at that time. He was taking Diabex and Epilim for epilepsy.[12]
[12] DCB 92
36 As a result of the referral, the plaintiff was seen by Professor Reutens, neurologist. He took a history from the plaintiff that he had suffered seizures due to his epilepsy since 1996, which began when the plaintiff's business began to fail. The plaintiff told him that the first sign of having a seizure was a visual hallucination.
37 The plaintiff gave Dr Reutens a history that he had suffered hallucinations lasting up to 30 seconds which involved the appearance of a family member dying; seeing a coffin. The plaintiff's wife reported to Dr Reutens that when these events occurred the plaintiff stared out blankly and would begin to chew and would be unresponsive.
38 Dr Reutens was of the opinion that the seizures which were described to him had features of mesial temporal seizures.
39 Mr Stanley cross-examined the plaintiff extensively about the occasions that he had been hospitalised as a result of an adverse reaction to a medication known as Lamotrigine on two occasions in 2005, and also on subsequent occasions due to his epilepsy.
40 The plaintiff said that he had undergone a CT scan, and probably an MRI scan, of his brain to determine whether there was a lesion which might be operable which might relieve the epileptic seizure condition which he developed.
41 The plaintiff said that he underwent the scans in 2005. He said he was advised that surgery was dangerous. If it failed it could do irreparable damage to his capacity to retain memory and speech function.[13] It was as a result of that advice that the plaintiff chose to be treated by medication.[14]
[13] Transcript 28
[14] Dr Mullen, physician, described the appearances on an MRI scan relevant to the dangers in undertaking surgery on the plaintiff's brain at DCB 462
42 The plaintiff said that he had been hospitalised for treatment for epilepsy[15] on about five occasions in 2009 due to having epileptic seizures.[16]
[15] Transcript 36-37
[16] Transcript 38-39
43 The plaintiff was seen by Dr Mullen, physician, for a review on 2 July 2008. I infer that if the plaintiff was reviewed on that day, he must have seen Dr Mullen on previous occasions.
44 The Dr Mullen wrote to Dr Attalla on 29 July 2008 outlining the plaintiff's treatment and the conclusions he had reached. Mr Stanley submitted that the conclusions reached by Dr Mullen demonstrate that the plaintiff's epilepsy was a significant cause of an emotional reaction, and more likely to have been responsible for the plaintiff’s depression than any relapse for which the transport accident was responsible.
45 The first observation Dr Mullen made regarding his treatment and the plaintiff, and its relationship with causing him depression is as follows:
"… Unfortunately, he is having ongoing complex partial seizures at the rate of two to three per month on Topamax. He is now on 150 mg and it is making him miserable. He is having sedation and feels constantly cold and tingling. He has made no improvement of efficacy with increased days and the weight loss is starting to bother him."
46 Dr Mullen then described the appearances on the MRI scan:
"Since his last review, Joseph has also had a repeat MRI which confirms an unchanged cavernoma in his right temporal lobe. This is really very posterior and medial, and is much closer to the occipital lobe than the hippocampus. How this relates to the optic tract is of considerable importance to any potential surgical treatment."
47 In relation to the plaintiff's reaction to other medication, Dr Mullen observed:
"Joseph had previously had good control on Keppra, but had such marked personality change that it is unlikely he would stay married if he went back on it. Tegretol, Epilim and Trileptal have been ineffective and Lamotrigine was complicated by a rash."[17]
[17] DCB 462
48 The plaintiff candidly admitted that his epileptic condition has led to significant problems with his capacity to function on a day-to-day basis. In answer to questions related to the degree to which the epileptic condition troubles him, he said:
"Q:
Over the last year or so, I suggest, it's become much worse. So this year you've been in hospital, as you said before, three or four times?---
A: Even five times. Q: Five times?--- A: Because they give wrong medication and that medication affect all
my worry. That's why they change it to three or four times.Q: So it's a great worry to you?--- A: Of course I'm worried about it. Even I asked the specialist, ‘What's
wrong with me?’ He said, ‘I don't know’.Q: It is a particular worry to your wife also, isn't it?--- A: Of course. Q: She has spoken to the doctors, you know, about your problem?--- A: Yes. Q: At the hospital?--- A: Yes, she told me. Q: She tells them that she's becoming increasingly concerned about the changes in the nature or the kind of seizures you're getting. They're changing, aren't they?--- A:
For example, I can't stand the big lights, the noise. I can't go to the party any more or hearing the music. Loud voices affect me badly. The voice, I can't stay, say for example we have family birthday or something like that, I can't stand the crowds, everyone talking, I can't. 10 or 15 minutes and I would like to leave. It affects me badly, till now, and people noisy or something like that, you know. I can't, I can't stand it. That's why I don't go usually to the church, because the prayers and microphones and all those things affect me badly."[18] (sic)
[18] Transcript 36-37
49 The plaintiff also said that one of the precipitants to the onset of an epileptic seizure is his mood. If it is bad news or even good news it affects him adversely straight away.[19]
Diabetes
[19] Transcript 18
50 The plaintiff was diagnosed as being diabetic in the 1990s.[20] He has been treated with medication since that time.
[20] Transcript 9
51 The plaintiff said that he has a number of adverse health problems as a result of suffering diabetes.
52 One of them is an ongoing sexual dysfunction which he considered was caused by the diabetes. As at the time of trial, he said that level of dysfunction had been present for about two years.[21] The plaintiff also said that his sexual dysfunction was due to a transurethral resection of his prostate in 2001.
[21] Transcript 43
53 Another is the impact of diabetes on his lower limbs. The plaintiff has suffered tingling in his feet. He denied having any more significant problems with his lower limbs.[22]
[22] Transcript 45-46
54 Another was the onset of tremors in the plaintiff’s hands. The plaintiff said that when his blood sugars lowered he suffers tremors.[23]
[23] Transcript 22-23
55 It would appear that the plaintiff also had urinary tract infections which he believed were associated with the onset of diabetes. He had at least one hospital admission in 2006 to treat a urinary tract infection.[24]
Memory
[24] Transcript 48-49
56 The plaintiff was referred to Ms Clausen, neuropsychologist, by Dr Kranz in 2001.[25] The purpose to be served by a neuropsychological assessment was a concern by the plaintiff and his wife that he was becoming forgetful.
[25] I understand Dr Kranz to be a neurologist. No material was tendered to demonstrate how Dr Kranz became involved in the plaintiff's treatment
57 Examples were given to Ms Clausen that the plaintiff lost his keys and glasses; was not able to recall the names of people, objects, and was forgetful during conversations; would drive up the wrong driveway, and had recently placed a ladder in the wrong place when changing a light bulb.
58 A further history was given to Ms Clausen by the plaintiff's wife that his mood fluctuated and at times he was depressed and tearful.
59 During her examination of the plaintiff, Ms Clausen noted that the plaintiff appeared anxious and quite depressed. On a number of occasions he was tearful. He expressed difficulty sleeping at night, and although vague, he appeared to be orientated.
60 Ms Clausen concluded that the plaintiff had some attentional deficits and some generalised slowing, and deficits in planning and organisation. She put that down to the effects of the plaintiff’s depressed mood.[26]
[26] PCB 34-35
61 Ms Clausen reviewed the plaintiff in September 2005. She noted that he was quite depressed at the time of the review. Her conclusions were the same as previously stated, however, she considered that the plaintiff's attentional deficits were more severe on the occasion of the review and had impacted on his memory and capacity for new learning. She did not consider him to be depressed on review, and therefore concluded that he was suffering from a non-specific sequelae of recent epileptiform activity.[27]
[27] PCB 36-37
62 The plaintiff conceded that before the transport accident occurred he was having real problems with memory which was the reason why he was referred to Ms Clausen.[28] He described having impaired concentration, and that because his memory is very bad his wife takes care of meal preparation and the management of his medication.[29]
Other Medical Conditions
[28] Transcript 23
[29] Transcript 54
63 The plaintiff also has suffered from other medical conditions of some significance, however, the real significance of them to the medical conditions claimed by the plaintiff to be serious was not readily apparent from the oral evidence of the plaintiff and Dr Attalla, nor from the material tendered in evidence.
64 In summary, those other medical conditions were/are - a history of an old infarct;[30] sleep disturbance with the plaintiff not being able to sleep much more than two hours each night;[31] the need to sleep during the day as a reaction to medication;[32] the development of an obstructive sleep apnoea disorder in about 2004 requiring active medical intervention;[33] and the onset of a rash which developed as a result of the use medication to treat the plaintiff's diabetes.[34]
[30] Transcript 72
[31] Transcript 21 and 38
[32] Transcript 50-51
[33] Transcript to 74-75
[34] Transcript 75-76, and see paragraphs 39 and 47 above
The Other Medical Evidence
The Psychiatric Injury
65 Mr McGarvie submitted that I should accept the plaintiff’s evidence that his psychiatric state deteriorated significantly as a consequence of the transport accident, and that the psychiatric injury meet the statutory test.
66 The starting point is to determine what I accept of the plaintiff’s evidence. Mr Stanley conceded that the plaintiff gave his evidence in a candid and straightforward manner. Had he not made that concession I would have reached that conclusion in any event.
67 There is little doubt in my mind that the plaintiff described all of his pre-existing medical conditions, including his pre-existing psychiatric condition, as well as he could, given that he is undoubtedly labouring under the difficulty of having problems with his concentration and memory.
68 There can be little doubt that the transport accident was a frightening event and the cause of significant physical injuries from which the plaintiff eventually made a good recovery. The measure of the impact on the plaintiff can be established by the fact that he suffered an undisplaced fracture of his sternum and required several weeks of hospitalisation to stabilise his condition.
69 I accept the plaintiff’s evidence that his psychiatric state has worsened since the transport accident occurred.
70 I accept the evidence of Dr Attalla that the plaintiff’s psychiatric state has worsened since the transport accident occurred which led him to increase the plaintiff's prescription for Luvox from 100 milligrams per day to 300 milligrams.
71 I accept the evidence of Dr Whitehouse that the plaintiff did suffer a relapse of his psychiatric state as a consequence of the transport accident. I accept that her diagnosis of major depressive disorder, as she related it to the transport accident, was complicated by what she described as fluctuating cognitive symptoms which were likely to have been secondary to an organic cause, being epilepsy and or delirium.
72 I also accept Dr Whitehouse's evidence, that at the time she last reviewed the plaintiff on 28 March 2006, that his symptoms of depression had improved and stabilised and she did not consider that the plaintiff required any further treatment or investigation. Interestingly, she encouraged him to continue to consult a neurological team for ongoing treatment, and I infer, for treatment for his epilepsy and delirium.
73 I do not accept the evidence of Dr Tanaghow nor the evidence of Mr Brown, psychologist, who diagnosed a psychiatric injury which they considered was largely due to the occurrence of the transport accident.
74 The defect in the approach taken by Dr Tanaghow is that he assumed that the plaintiff recovered fully from the psychiatric condition, for which he provided the plaintiff treatment, by 2001, and that the plaintiff's mood remained well until the transport accident.
75 Furthermore, Dr Tanaghow assumed that the plaintiff's epilepsy was well controlled.
76 It was that defective understanding, that the plaintiff was experiencing stable health, that led Dr Tanaghow, understandably perhaps, to conclude that in the absence of any other factors which contributed to the plaintiff's psychiatric injury, that it must therefore have been the transport accident.
77 Dr Tanaghow did not have a history of the very troubled time the plaintiff had leading up to the occurrence of the transport accident from all of the medical conditions which I have endeavoured to summarise in paragraphs 30 to 64 above.
78 I should observe at this point that I am not convinced that all of the medical conditions are relevant to consider as contributors to the plaintiff’s pre-existing psychiatric condition before the transport accident occurred. For example, there is insufficient evidence to suggest that the hepatitis C, the diabetes and the other medical conditions which I have grouped together and summarised in paragraph 64 have directly contributed to the plaintiff’s psychiatric injury.
79 The conclusion I have reached is that they are part of the plaintiff's background and have undoubtedly added to deterioration in the plaintiff’s physical health, and I infer, that they would have weighed the plaintiff down emotionally to some degree.
80 It occurs to me that it is the plaintiff's epilepsy that is the most problematic for the plaintiff. It has been a cause of a significant amount of treatment he has had post the transport accident.
81 It is quite apparent that the source of the epilepsy is a brain lesion for which surgery has been considered because the medication the plaintiff has been prescribed has not been adequate to control the epilepsy, and that is obvious because of the number of occasions on which the plaintiff has required inpatient hospital treatment, especially in 2009.
82 Dr Tanaghow obtained little of the foregoing history. Therefore, to conclude that the plaintiff has a major depression due to the transport accident is wrong.
83 Mr Brown treated the plaintiff in 2008. His opinion is likewise defective because of a similar absence of the history, which I have summarised in paragraphs 30 to64 above. A glaring example of where Mr Brown was misled, or misunderstood the history he was given, was his description of the plaintiff living a full and active personal, family and social life before the transport accident occurred. He described the plaintiff as having sufficient energy and enthusiasm to maintain and improve his garden and lawns and was available to assist his wife in completing household tasks.
84 The foregoing is dramatically inconsistent with the reality of the plaintiff's life since the failure of his business and the growing interference in his life of a number of medical conditions, especially depression, epilepsy and loss of concentration and memory. To describe the course of events for the plaintiff prior to the transport accident as being other than traumatic and a physical and mental drain on him is an understatement.
85 Mr Brown again was either misled or misunderstood the state of the plaintiff's previous psychiatric condition. He recorded that the plaintiff had fully recovered from his previous period of depression which is quite wrong, and on that footing, together with the other misconceptions to which I have already made reference, he concluded that the transport accident produced post traumatic stress disorder with associated anxiety and depression.[35]
[35] especially PCB 53-54
86 Dr Nathar, psychiatrist, examined the plaintiff on 10 March 2009. Likewise, Dr Nathar was either misled or misunderstood about the state of the plaintiff's previous psychiatric condition and his other medical conditions.
87 Whilst the plaintiff told Dr Nathar that he had not fully recovered from his previous psychiatric condition, he gave Dr Nathar to believe that he was still physically active, able to engage socially and perform his domestic duties and pursuits to a reasonable degree. He said he was happy except for once or twice a week when he suffered lowered moods and depression which would see him withdraw and want to be left alone.
88 The plaintiff gave Dr Nathar a description of his loss of libido as if it was due to the transport accident, but that does not appear to be the case. The plaintiff traced his loss of sexual function to prostate surgery in 2001, although he also said it was lost to him in the last two years.
89 The history of the impact upon the plaintiff of his epileptic condition appears to have been downplayed in the history recorded by Dr Nathar and inconsistent with its degree as I have summarised above. The fact that the plaintiff told Dr Nathar that he is not sure whether his epileptic condition had increased or not is simply not accurate. By 2009 it was worsening and was the subject of discussion with Dr Mullen in July 2008 regarding the place of surgery in ameliorating the occurrence of epileptic seizures.
90 Apart from the foregoing, the more serious defect in the history obtained by Dr Nathar is the flavour of the history obtained by him which does not contain the whole of the plaintiff's medical history as it existed prior to the transport accident. That led him to conclude that even though there were some conditions he knew about, that it was ultimately the transport accident which was the major event producing the aggravation of an underlying major depressive illness, post-traumatic stress disorder, and at one stage a severe anxiety/panic disorder.
91 Whilst I do not entirely reject the opinion of Dr Nathar regarding the aggravation of the plaintiff's pre-existing psychiatric condition, I do not accept the assessment he made of the gravity of the aggravation because in the absence of a more accurate history he has emphasised the role of the transport accident out of proportion to the contribution made by the plaintiff's other medical conditions, especially the plaintiff's epileptic condition.[36]
[36] PCB 55-61
92 The defendant referred the plaintiff to Dr Walton, psychiatrist, who examined him on 2 June 2008. The history obtained by Dr Walton is much like the history obtained by Dr Nathar, to the extent that it is rather superficial. However, Dr Walton appears to have understood that the plaintiff's pre- existing medical conditions were of real significance.
93 Dr Walton was of the opinion that there had been an aggravation of the plaintiff's pre-existing psychiatric condition. He made that judgment by concluding that the plaintiff had not returned to his pre transport accident level of psychiatric symptomology. He chose to describe the degree of aggravation as producing minor residual symptoms which the plaintiff would suffer for the foreseeable future. He considered that they were a relatively small component of the plaintiff's overall depressive disorder.[37]
[37] DCB 38-45
The Psychiatric Injury/Serious Injury
94 It is clear enough that the failure of the plaintiff's business was a devastating blow to him. It was the cause of the onset of a major depressive illness for which the plaintiff required medical treatment.
95 It is also clear that some years prior to the occurrence of the transport accident the plaintiff had symptoms consistent with a persistent depressive illness for which he was prescribed Luvox. According to the clinical notes, to which Dr Attalla was referred during his evidence, the plaintiff was prescribed Luvox at the least by 2003.
96 While the plaintiff endured those psychiatric symptoms he was also labouring under the increasing difficulties posed by his epileptic condition, and to a lesser extent by his other medical conditions. However, the sheer number of those conditions and the treatment which the plaintiff required in all probability reduced the quality of the plaintiff's life overall and contributed to his psychiatric state as it was prior to the occurrence of the transport accident.
97 It is very clear from the medical material which I have reviewed that the plaintiff was having very serious problems with depression, loss of concentration and memory, and an epileptic condition which also contributed to his depressive state.
98 Whilst I accept that the plaintiff suffered an aggravation of the pre-existing psychiatric condition, I do not accept that it was as significant as described by Dr Tanaghow, Mr Brown or Dr Nathar because the understanding they had of the symptoms which the plaintiff experienced from not only the pre-existing depression, but all the other medical conditions, was defective for the reasons which I have set out above.
99 It seems to me that whilst the plaintiff required an increase in Luvox from 100 milligrams to 300 milligrams per day, it was not entirely due to the aggravation of the pre-existing psychiatric condition. The plaintiff's epileptic condition was contributing to his state of depression, and so were the other medical conditions in all probability.
100 Dr Attalla was unable to adequately distinguish between the plaintiff's psychiatric condition before the transport accident and the magnitude of it resulting from the aggravation of the pre-existing psychiatric condition. In answer to questions put to him summarised in paragraph 26, Dr Attalla was only able to say that the plaintiff was more depressed and required more medication.[38]
[38] Also see Transcript 64-65
101 The plaintiff bears the onus to prove that the aggravation has brought upon him consequences which are severe.
102 I am not satisfied that the plaintiff has discharged that onus. Whilst I am satisfied that he has suffered an aggravation of the pre-existing psychiatric condition, I am not satisfied that the aggravation has increased the symptoms experienced by the plaintiff and has produced consequences that warrant the conclusion that they are severe.
103 Furthermore, the fact that there are other medical conditions which also contribute to the plaintiff's depressive illness casts an onus on the plaintiff to show that the consequences of which he complains now as part of this application are causally connected to the transport accident.
104 The additional difficulty I have with this application is the distinction between the causes of the plaintiff’s depressive illness post the transport accident. It seems to me that there are at least three causes – firstly, the plaintiff's pre- existing psychiatric condition; secondly, the transport accident; and thirdly, the contribution made by the plaintiff's other medical conditions.
105 It is for these reasons that I find that the plaintiff has suffered an aggravation of his pre-existing psychiatric condition, but that the aggravation is not productive of consequences which warrant the conclusion that they are severe.
Serious Injury/Neck Condition
106 I am satisfied that the plaintiff suffered an injury to his neck, however, I am not satisfied that the consequences suffered by him warrant the conclusion that they are serious.
107 In his first affidavit the plaintiff described the consequences which he related to the injury to his neck. He had been retired for number of years and as a consequence a lot of his time revolved around performing domestic duties such as vacuuming, mopping, cleaning windows, mowing lawns, performing home maintenance and being very house proud.
108 The plaintiff also described relying on his daughter, daughter-in-law and son to undertake tasks which he previously was able to undertake. He described that he requires assistance with shopping. He described no longer being able to play the violin.[39]
[39] PCB 8-10. There is no page numbered 9
109 However, the extent to which the plaintiff was engaged in the foregoing activities is very questionable. The aggregate effect of the plaintiff's other medical conditions led to him suffering a very considerable diminution in his capacity to engage in social, domestic and recreational activities. It occurs to me that the description given by the plaintiff of what he lost as a result of his neck injury is an overstatement.
110 The gravity of the plaintiff's neck injury is well summarised by Dr Attalla:
"Q:
The second-last entry I think? Yes. Was the Panadeine Forte persisted in or what was the situation and what has the situation been since then?--
A: The Panadeine Forte, he kept on Panadeine Forte for a while and then we advised the patient after a while that the pain is - the pain is not that much, there's no need to take heavy medication for it and we will be continuing with the exercises and with - and with the physiotherapy. Q: Does that remain the situation to this day?--- A: Yes, up to the 9 August."[40]
[40] Transcript 67
111 And later:
"Q: Doctor, when is the last time you've got any complaint from Mr
Megally as to any problem with his neck or arms?---A: A while ago. Yes, he did mention that. I'm not sure about the date, but I think about six months ago. Q: He mentioned it to you, did he?---
A: He didn't mention it to me. Q: He didn't mention it to you. Who did he mention it to?--- A: I don't know. Maybe he's seeing another service provider. Q:
Perhaps we just make sure we've got that right. When is the last time that he ever mentioned to you as his doctor any problem he has involving his neck or his shoulder or his arm?---
A: A while ago. I'm not a hundred per cent sure. Q: It is certainly not a factor that looms large in his medical picture, does it?--- A:
Okay, we agreed about the plan that he would do exercises and his wife would do massage and he can take a mild form of painkillers. Okay. I didn't get any complaint that the situation got worse during this period of time. So apparently he was managing with just massage.
Q:
So in the scheme of things, being realistic about it, here's a man who's got multiple medical issues, some of them really quite serious. In the scheme of things, any problem with his neck and arm are pretty minimal, aren't there?---
A. Yes. We were more preoccupied with other things."[41] [41] Transcript 86-87
112 The question of whether a serious injury has been incurred is to be measured by what a plaintiff has lost, and, of course, the answer to that question can be informed by what the plaintiff has retained.
113 Again, without rehearsing the summary and analysis of the evidence relevant to the plaintiff’s claim that he has suffered an aggravation of a pre-existing psychiatric condition which amounts to a serious injury, it is clear to me that to a great extent the plaintiff had lost his capacity to engage in the very social, domestic and recreational activities upon which his claim for serious injury for the neck is based.[42]
[42] For example, the plaintiff says his neck injury impairs his capacity to play the violin, but he conceded that so do the tremors he experiences, at Transcript 21
114 Furthermore, a claim that a physical injury has resulted in consequences which are said to be serious must have certain characteristics which speak of the nature and extent of the seriousness. Here, the evidence which I accept is that the plaintiff probably has levels of pain which render activities open to him more difficult, but he is having little or no treatment and is pursuing a very conservative course of treatment which I consider to be more consistent with a mild to moderate physical injury rather than one which has the characteristics of being described as “serious”.
115 Although it is a matter for my judgment, it occurs to me that the description given by Dr Attalla that the pain experienced by the plaintiff is not much is a very apt description.
116 It is for these reasons that I find that the plaintiff has suffered an injury to his neck which probably does have some consequences for the plaintiff relevant to the modest level of physical activity he was capable of before the transport accident occurred, but that the consequences fall well short of being described as “serious”.
Conclusion
117 On the basis of the foregoing reasons, findings, and conclusions, I dismiss the plaintiff's Originating Motion.
118 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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Transcript 69
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