Middlin v Transport Accident Commission
[2012] VCC 1332
•17 September 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03500
| DENISE MIDDLIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 27 August 2012 | |
DATE OF JUDGMENT: | 17 September 2012 | |
CASE MAY BE CITED AS: | Middlin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1332 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT – Damages
CATCHWORDS – Serious injury – psychiatric impairment
LEGISLATION CITED – Transport Accident Act 1986, s93 – serious injury – paragraph (a)
CASES CITED – Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 883; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis (2000) 30 MVR 441
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with Mr M Nightingale | Saines & Partners Pty Ltd |
| For the Defendant | Mr P Jens with Mr M Hooper | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 24 February 2005 (“the said date”).
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 plaintiff brings this application pursuant to paragraph (c) of the definition of “serious injury” to be found s93(17) of the Act. There:
“Serious injury means—
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 The plaintiff claims a severe long-term behavioural disturbance or disorder. The body function relied upon by the plaintiff is a psychiatric impairment.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon two affidavits, sworn 17 February 2011 and 17 August 2012.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)That the injury suffered by the plaintiff was as a result of the transport accident.
(b)That the injury is a serious injury within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
9 The requirements of the test under sub-paragraph (a) are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said the task of a judge:
“… is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be 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’.”[2]
[1][1992] 2 VR 129
[2] ibid at [140]
10 In respect to paragraph (c) of s93(17), the word “severe” was used as a stronger word than “serious” in paragraph (a) of s93(17).[3]
[3]Per Brooking AJ in Mobilio v Balliotis [1998] 3 VR 883
11 The judgment of the Court of Appeal in Mobilio v Balliotis[4] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[5] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[6]
[4][1998] 3 VR 833
[5](1995) 21 MVR 314
[6]Mobilio v Balliotis (ibid) at 846
12 Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[7]
[7]ibid. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
The Issues
13 Counsel for the defendant informed the Court that her current state does not meet the test of “severe”.
14 Secondly, the defendant anticipates that the plaintiff’s case is an aggravation case which requires a comparison of the plaintiff’s mental state before the accident with her current state, which does not meet the test of “severe”.
15 Thirdly, the plaintiff’s credit is in issue.
The Plaintiff’s Evidence
16 In her affidavits sworn on 17 February 2011 and 17 August 2012, the plaintiff deposes that:
· On 24 February 2005, she was a passenger in a motor vehicle when a backhoe collided with the front left side of the vehicle. Her husband was taken to hospital and she took her children (who were also in the vehicle) home.
· The day after the accident, she attended the Gillies Street Medical Centre. She had neck pain, general bruising, lacerations and an injury to her left foot. In the days following the accident, she had panic attacks, nervous tension, shaking, irritability and tearfulness, and felt unable to leave the house. She had two weeks off work.
· When she returned to work, she had difficulty coping, both physically and emotionally. She began cutting back her hours, and in March 2006, stopped work for three months. She is now working 20 hours per week, which is about half the number of hours she worked prior to the accident.
· She felt depressed and had nightmares and flashbacks and could not sleep. She developed severe abdominal pains and Irritable Bowel Syndrome (“IBS”). She has suffered an increase in the frequency of migraine headaches with blurred vision. She continues to have these conditions.
· She consulted a psychologist and a psychiatrist. She was diagnosed with Depression, Anxiety and Post-Traumatic Stress Disorder (“PTSD”) and IBS. She presently sees Dr Hand, general practitioner, and takes medication, including Zoloft, Somac, Colofac, Panadeine Forte, Imigran, Temazepam and Valium.
· She currently receives counselling from Dr Hand but does not consult a psychologist or psychiatrist.
· She was previously happy and outgoing and enjoyed bushwalking, yabbying, swimming and gardening. She was involved in her children’s school activities and socialised with the mothers. She had a good relationship with her husband.
· Since the accident, she has stopped participating in those activities. She does not like going out and spends a lot of time at home in bed when she is not at work. She struggles at work and with the activities of daily living. She is socially withdrawn and if she goes out she avoids crowds and likes to be accompanied by somebody. Her relationship with her husband has suffered badly. She started consuming too much alcohol and coffee. She is more emotionally affected by her patients.
· She previously had a work-related back injury in 1991 and was off work for about eighteen months. As a result of her injury, she suffered depression and anxiety that required treatment. She coped with these matters over time and after treatment. She resumed work in 1993 and at the time of the accident, was working nearly full-time shiftwork.
The Plaintiff’s Evidence in Cross-Examination
17 The plaintiff gave the following pertinent evidence.
· As a result of the 1991 incident, she was advised not to return to nursing duties which involved any bending or lifting. She agreed the common law claim included a permanent incapacity for her back. She agreed she required psychological counselling as a result of the back injury.
· When she returned to work in 1993, she worked part-time and was a casual. At the time of the motor vehicle accident, she was working nearly full-time shiftwork for two employers, Ballarat Health Services and Nazareth House. She worked at Nazareth House one weekend a fortnight; occasionally she would be asked to work an extra shift. She worked at Ballarat Health twenty hours a week with the option to work extra hours. She did not remember having a discussion about working full-time, thirty-five hours a week in April 2002.
· The plaintiff ceased working at Nazareth House in December 2004 because she was rostered for both jobs over the Christmas period and she had to make a choice.
· The plaintiff agreed Mrs Beverley Adams was the unit manager at the Bill Crawford Lodge and was her supervisor. She agreed she never requested that her hours be reduced and that she worked in excess of the contracted twenty hours per week.
· The plaintiff said she did not confide in her manager about her physical or psychological issues and the struggles she was having.
· The plaintiff had not done any extra work for approximately two and a half years because she had been unable to do so. She had tried to do extra hours but each time it had caused her a setback in her mental condition. She needed to work but she was struggling with her job.
· The plaintiff agreed she first experienced migraines at the age of twenty, after the motor vehicle accident they were more frequent and severe. She denied that she had suffered severe migraines on a regular basis for many years. She said in 2000, she would have reported to her doctor that she had a cluster of headaches over a few days, but that did not mean every day of her life. She said on one occasion she sought a certificate because she could not go to work because of the severity of her migraine.
· The plaintiff said she had no serious problems before the accident of a psychological nature. She told Dr Walton that she had minor problems. She did not think a psychological disturbance was the same as a psychiatric history.
· The plaintiff agreed she had minor problems of depression with symptoms of poor sleep, tearfulness and social isolation before the accident, but the symptoms were not to the extent that she had suffered since the accident. She described the depression as some minor depression, not major depression as she suffers now.
· The plaintiff agreed her husband had suffered an injury before she married him. He had poor memory and injury to his brain and physical injury which affected his knee, hand and back.
· The plaintiff said prior to February 2005, her relationship with her husband had the normal ups and downs of any relationship. She agreed that since the accident, there had been strains on their relationship. She agreed she and her husband had a 49-acre hobby farm. In the last few months she has been visiting the farm regularly rather than staying in bed. She goes there to feed the animals, which include two pet horses and some sheep, which have been put on the farm to eat the grass.
· The plaintiff said she did not want to return to Nazareth House. She would like to move on to new challenges and different situations.
18 In re-examination:
· The plaintiff agreed that she recently had time off to support her daughter.
· The plaintiff said before the accident, she did not have nightmares. She has nightmares now about murdering people on a nightly basis, or that her youngest daughter is drowning, and about glass as a result of the smashed windscreen. She keeps remembering the silence after impact when she thought her children were dead.
· Whilst she drives locally, she finds it scary. She is terrified when she sees vehicles like the frontend loader with which they collided. She had no such consequences before the accident.
· The plaintiff is the major breadwinner of the family and her husband has not worked in the time she has lived with him. She had three months off when her first child was born and a couple of months off when her second daughter was born. She proposes continuing working for 20 hours per week into the future if she is able. She has not worked with Beverley Adams for years as they work different shifts.
The Plaintiff’s Medical Evidence
Dr Joanne Love
19 In April 2006, Dr Love, general practitioner, provided a medical report in relation to the plaintiff.
20 Dr Love treated the plaintiff on four occasions following the transport accident. The plaintiff provided her with a history of having suffered severe bruising and lacerated left ankle which had become infected. The plaintiff provided a history of depressive symptoms with poor sleep, tearfulness and social isolation. Following the accident, those symptoms had been exacerbated.
21 Dr Love diagnosed Depression/Anxiety Disorder and PTSD and referred the plaintiff for psychiatric assessment to Dr Green. The plaintiff was commenced on Zoloft. The plaintiff was already seeing a psychologist, Ms Lorensini.
Ms Sandra Lorensini
22 On 20 December 2005, Dr Lorensini, psychologist, provided a report to the Transport Accident Commission requesting approval of a further twelve counselling sessions for the plaintiff.
23 Ms Lorensini was treating the plaintiff, who she said continued to suffer from depression and symptoms of PTSD that related to the road traffic accident in February 2005. The plaintiff was having difficulty carrying out her job as a nurse. She said the plaintiff was re-experiencing the accident through disturbing nightmares. She suffered psychological distress and reactivity when she passed the scene of the accident. She complained of sleeping problems, irritability and difficulty in concentration. Ms Lorensini provided cognitive behavioural therapy and relaxation therapy.
Dr Ruth Hand
24 Dr Ruth Hand, general practitioner, provided medical reports dated July, September and December 2006, July and December 2007, October 2010 and August 2012.
25 Dr Hand had been treating the plaintiff since 21 March 2006 after her previous general practitioner retired. At that stage, the plaintiff was being treated by a psychiatrist, Dr Dominic Green, and a psychologist, Ms Sandra Lorensini.
26 Dr Hand diagnosed PTSD and IBS. The plaintiff was referred to a further psychologist, Ms Frances McPhee-Alan, and psychiatrist, Dr Mani Rajagopalan. The plaintiff complained of bowel symptoms, of dragging pain, flatulence, diarrhoea, constipation and was referred to a gastroenterologist, Dr Ian Hamilton.
27 In October 2010, Dr Hand said the plaintiff was still suffering from intermittent migraine headaches and IBS, both of which were substantially exacerbated by the transport accident. She was suffering anxiety and PTSD directly caused by the accident. She had been stable for the last twelve months and Dr Hand could see little improvement in the foreseeable future.
28 In August 2012, Dr Hand said the plaintiff had been seeing her regarding continuing treatment for migraine headaches, gastro oesophageal reflux, irritable bowel and depression. Her treatment had included medications for gastro oesophageal reflux, migraines, insomnia, irritable bowel and anxiety/depression. She said the plaintiff’s condition was unchanged from her previous report in 2010 and there was no significant improvement.
Ms Frances McPhee-Alan
29 In April 2012 Ms McPhee-Alan, psychologist, provided a report in relation to her treatment of the plaintiff in 2006 and 2007.
30 Ms McPhee-Alan diagnosed depression and PTSD. It was her view that the plaintiff’s poor sleep and nightmares were strongly linked to the transport accident and subsequent events. The flashbacks to the image of the backhoe in front of her car windscreen were irrefutably linked to the accident. She said the plaintiff complained of feelings of guilt as a mother and a sense of worthlessness as a parent. She said the plaintiff suffered depression, her sleep was broken with nightmares, she suffered flashbacks, she was unmotivated and extremely fatigued. She had not seen the plaintiff since May 2007.
Dr Mani Rajagopalan
31 Dr Rajagopalan, psychiatrist, provided reports dated 15 June and 18 December 2007. She had seen the plaintiff on referral from the plaintiff’s general practitioner on 16 occasions between January and October 2007.
32 Dr Rajagopalan said that following the accident, the plaintiff had consumed alcohol to excess up to a bottle of port at night for several months, which had reduced to half a bottle of port per night when first treated. By May 2007, she had reduced to two drinks per week.
33 The plaintiff had not reported any significant past psychiatric history. She reported poor sleep for which she was taking medication.
34 Dr Rajagopalan diagnosed a major depressive episode occurring in the context of PTSD.
35 When last seen in October 2007, the plaintiff had been working approximately two shifts a week and was functioning adequately at work. She had taken one week of long service leave in the previous four weeks to help cope with being at work.
Dr Ian Hamilton
36 Dr Hamilton, gastroenterologist, provided reports dated June 2009 and July 2010. He had treated since July 2007.
37 Dr Hamilton said the plaintiff had a history of PTSD relating to the transport accident. He said her abdominal symptoms contributed to her distress and were exacerbated by her underlying PTSD. It was his view that the plaintiff would have symptoms until her psychological state improved. He said there was a clear link between psychosocial stress and the symptoms of IBS.
Dr William Glaser
38 In March 2008 Dr Glaser, psychiatrist, saw the plaintiff at the request of the plaintiff’s solicitor.
39 Dr Glaser said the plaintiff was continuing to experience major repercussions as a result of the accident. She had developed quite severe symptoms, including abdominal pain, and irrational fears of leaving her house. She had seen numerous psychiatrists and psychologists and their overall intervention appeared to have been of limited benefit to her. He said the plaintiff was suffering from PTSD, which had been complicated by a Major Depressive Disorder. He described the plaintiff’s depressive symptoms as moderately severe. He said her consumption of alcohol, which he described as “alcohol abuse”, would compromise her future physical and mental health.
40 It was Dr Glaser’s view that the major contribution to the development and persistence of the plaintiff’s psychiatric problems was the 2005 accident. He estimated the contribution at ninety per cent of her current psychiatric impairment. It was his view that the plaintiff’s mental state had fluctuated over the years but overall there had not been any significant improvement despite her receiving multiple mental health interventions. He said that the plaintiff had extensive depressive symptoms, a considerable component of her physical problems was the physical manifestation of her psychological distress; for example, the worsening of her pre-existing headaches and the development of the IBS symptoms. He said the physical problems were secondary to her psychiatric problems, which he regarded as the prime component of her impairment. He thought it unlikely that more intensive treatment will result in any substantial improvement of her psychiatric problems.
41 He said the plaintiff had extensive depressive symptoms. He considered that her physical problems were a manifestation of her psychological distress.
Dr Michael Epstein
42 Dr Epstein, psychiatrist, saw the plaintiff in October 2010 and April 2012 at the request of the plaintiff’s solicitors.
43 It was Dr Epstein’s view that the plaintiff had a PTSD, Panic Disorder with agoraphobia and a Major Depressive Disorder as a consequence of ongoing pain and discomfort and the development of an IBS following the transport accident. He said her quality of life had diminished significantly, affecting her work capacity, her relationships and her recreational enjoyment. It was his view that she was struggling to work 20 hours per week and may not be able to do so indefinitely.
Professor Geoffrey Metz
44 Professor Metz, gastroenterologist, saw the plaintiff in January 2011 and February 2012 at the request of the plaintiff’s solicitor.
45 It was Professor Metz’ view that the plaintiff’s major issue was depression. He said she struggled with her job, and suffered migraine headaches and IBS. He described the irritable bowel symptoms as moderately severe. He said the IBS and the gastro-oesophageal reflux should be considered in the context of her psychiatric illness.
Dr James Cannon
46 The clinical notes of Dr Cannon, the plaintiff’s general practitioner, for the period 1986 to 2003 were produced to the Court. Dr Cannon had retired.
47 A review of Dr Cannon’s notes between 1986 to 2004 indicates that the plaintiff consulted him on four occasions in respect to migraine and/or headaches[8] and on three occasions in respect to depression.[9]
[8]5 August 1986, October 1986, May 2000 and 5 December 2001
[9]“16 November 1989 – stress reaction. Doing extra studies while working full-time; 29 May 1990 – depressed. Relationship and work problems; and June 1990 – depressed. Relationship broke up. Moving out of home. Job problems.”
The Defendant’s Medical Reports
Dr Robert Marshall
48 In March 2006, Dr Robert Marshall, surgeon, examined the plaintiff at the request of the defendant’s insurer.
49 It was Dr Marshall’s view the plaintiff had almost entirely recovered from the physical injuries she suffered in the transport accident in 2005. He said psychological factors were making it impossible for the plaintiff to resume her normal pre-accident duties. He said her present unfitness was the result of her psychological condition.
Dr Lester A Walton
50 Dr Walton, consultant psychiatrist, examined the plaintiff in April and October 2006, August 2007, September 2009, January 2011 and August 2012 at the request of the defendant.
51 He considered Dr Glaser’s earlier report. Dr Glaser commented that the depressive component of the syndrome ought be classified as primary or non-secondary exclusively. Dr Walton thought there would be at least a component of the depression which is reactive to pain. (However, the plaintiff did not complain of this to any doctors who examined her).
52 Dr Walton thought there were post-accident factors unrelated to the accident which had produced relevant exacerbations. In particular, gynaecological and gastrointestinal problems, which seem not to be accident induced. He accepted that he was a psychiatrist, not a gastroenterologist or gynaecologist.
53 In 2012, Dr Walton said the plaintiff appeared rather tense. He diagnosed PTSD and Major Depressive Disorder. He said there had been little change since he last saw the plaintiff. He thought the original post-traumatic symptoms were in relative abeyance and mood disturbance was more prominent. He said her psychiatric condition was stable. He thought there was no sensible prospect of further recovery and that her current psychiatric symptoms were likely to persist for the foreseeable future. He said the plaintiff’s tiredness and depression detract from her enjoyment of life. He thought the social and recreational incapacity was likely to be permanent. It was his view that there appeared to be approximately equal proportions of consequences secondary to physical injury to the accident and as a direct consequence of the accident. He said there was a substantial component of non transport accident contribution to the plaintiff’s end state, medically and psychologically. He noted that the plaintiff found the process of review as quite distressing.
Dr Andrew Jakobivits
54 In September 2009 Dr Jakobivits, gastroenterologist, examined the plaintiff at the request of the defendant’s insurer.
55 Dr Jakobivits was of the view that the IBS was a result of the stress the plaintiff suffered from the accident and is intimately related to her PTSD.
Mr Brendan Dooley
56 In September 2009 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant.
57 Mr Dooley noted that the plaintiff had suffered from migraine headaches in the past but these had become worse since the accident. He said she had recovered fully from the soft-tissue injuries to the cervico-thoracic spine and the laceration overlying the left ankle.
Dr James Cannon
58 Dr James Cannon, general practitioner, wrote a letter to the Midland Counselling and Rehabilitation Service on 12 May 1992. He was treating the plaintiff for low-back pain as a result of her injury at work at the Ballarat Base Hospital. In that letter, he said that there was a major psychological component due in part to the delay of establishing the severity of the plaintiff’s complaint and the perceived antagonism towards the plaintiff. The letter contained a warning that the plaintiff had been deeply affected by her experiences and would require specific care in re-establishing her self-esteem and confidence.
Ms Sandra Lorensini
59 On 10 May 2005, Ms Lorensini, psychologist, wrote a letter to Dr Dominic Green (psychiatrist). In that letter, she informed Dr Green that the plaintiff and her husband had problems pre-accident and the trauma made them worse. She said the marriage seemed to be in crisis and that the plaintiff’s husband was desperately wanting help for his wife.
Dr Dominic Green
60 In May 2005 Dr Green, psychiatrist, reported to the plaintiff’s general practitioner, stating that the plaintiff:
“Can’t enjoy anything and can’t sleep since the car accident in February.
Just coped before the accident.
Problems off and on since left home.
Marginally better but still not sleeping.”
61 Dr Green questioned whether the plaintiff was suffering from an Adjustment Disorder with anxiety symptoms and suggested an Anxiety Disorder longer term.
The Defendant’s Evidence
62 In her affidavit sworn on 3 August 2012, Ms Beverly Adams deposes that:
· The contents of her statement dated 4 June 2012 are true and correct.
· She is the unit manager of Bill Crawford Lodge in Ballarat, where the plaintiff is currently employed part time as an associate nurse.
· She has known the plaintiff since approximately 2002.
· The plaintiff is contracted to work night shift for 20 hours per week with additional shifts when they are available. The plaintiff does the clinical care of the residents and overseas the other staff on duty.
· The plaintiff is a very good worker and excellent with the residents.
· The plaintiff is still employed in the same position as she was before the transport accident. The plaintiff did not request to have her hours reduced. The plaintiff has worked in excess of 20 hours per week at the request of both the plaintiff and the employer.
· She has not witnessed any issues or restrictions in the plaintiff’s duties and is not aware of any physical or psychological issues affecting her ability or performance at work.
· The plaintiff has not taken excessive sick leave.
Credit of the Plaintiff
63 The plaintiff was not very articulate and on occasions her answers were unclear. On occasions she was argumentative. She struggled to give a clear narrative and became frustrated with the process. She told the Court that she found the experience of giving evidence stressful.
64 The plaintiff made concessions in relation to the psychological counselling she had as a result of the 1991 incident; migraine headaches and minor depression before the transport accident.
65 I accepted the plaintiff was a witness of truth.
Analysis of the Evidence
66 I am satisfied that the plaintiff suffered a compensable injury arising out of the transport accident. All medical witnesses agreed that the plaintiff had suffered a PTSD with varying secondary psychiatric conditions. Dr Hand diagnosed Anxiety as a secondary condition. Mr Epstein said the plaintiff suffered Panic Disorder with agoraphobia and a Major Depressive Disorder in addition to the PTSD. Dr Walton diagnosed a secondary condition of Major Depressive Disorder.
67 The gastroenterologists all agreed the plaintiff suffered IBS as a result of the stress from the transport accident and said the condition was intimately related to the PTSD. Dr Hamilton said there was a clear link between the psychological stress and the symptoms of IBS. Professor Metz described the IBS as moderately severe and said it and the gastro-oesophageal reflux were related to the plaintiff’s psychiatric illness. Dr Jakobivits agreed with the other gastroenterologists. All doctors accepted that the condition had existed for seven-and-a-half years and that there was unlikely to be any improvement.
68 Counsel for the defendant submitted that the plaintiff had failed to call two critical witnesses and in their absence I should conclude that their evidence would not have assisted the plaintiff. The two witnesses were Dr Cannon, who was the plaintiff’s general practitioner from 1986 until he retired. His clinical records concluded in July 2003. The other witness was the plaintiff’s husband.
69 In relation to Dr Cannon, the evidence was that he retired about the time of the accident and the plaintiff sought treatment from Dr Love, then Dr Hand.
70 Dr Cannon’s clinical records were produced to the Court. I accept that Dr Cannon’s record indicate that the plaintiff had minimal need to attend her general practitioner with respect to depression or migraine problems. She had a back problem which she overcame.
71 Given that Dr Cannon has been retired since the time of the accident, his records were produced to the Court, and his records did not disclose any matters of significant relevance, I find no adverse inference can be drawn from the failure to call him.
72 In respect to the plaintiff’s husband, the evidence was that he had suffered brain damage prior to the commencement of the plaintiff’s relationship with him, he was unwell and that the relationship had suffered badly as a result of the accident. Accordingly, I make no finding in relation to the failure to call the plaintiff’s husband.
73 Counsel for the defendant submitted that the plaintiff suffered psychiatric problems prior to the accident. He relied upon a letter dated May 1992 from Dr Cannon to the Midland Counselling Rehabilitation Service, relating to the plaintiff’s work injury in 1991, in which he said that there was a major psychological component due in part to the delay of establishing the severity of the plaintiff’s complaint and the perceived antagonism towards the plaintiff. The plaintiff’s evidence was that she received treatment and returned to work in 1993. I accept the plaintiff’s evidence that she recovered from this episode.
74 Counsel also referred to the letter of the psychologist, Ms Lorensini, to Dr Green dated May 2005, where Ms Lorensini said the plaintiff and her husband had problems pre-accident and the trauma made them worse. There is no evidence that any problems referred to in this letter have any connection with the plaintiff’s psychological state. As such, I cannot infer that the plaintiff was suffering a psychiatric/psychological condition prior to the accident.
75 Counsel further referred to the letter from Dr Green, psychiatrist, to the general practitioner in May 2005 where he stated that the plaintiff said:
“Just coped before the accident. Problems off and on since left home.”
and summarised the past psychiatric history which was consistent with the clinical records of Dr Cannon.
76 I accept that the plaintiff received psychiatric counselling on occasions before the transport accident. However, the consultations were sporadic, she took no medication and was working full time. Accordingly, I do not accept that the plaintiff suffered a pre-existing psychiatric condition and that her present presentation represents an aggravation of that condition.
77 The plaintiff’s evidence was that she was having difficulty coping both physically and emotionally after the transport accident. She suffered nightmares and flashbacks of the most terrifying nature. She described nightmares of murdering people, of her youngest daughter drowning and about glass as a result of the smashed windscreen. She said she keeps remembering the silence after impact when she thought her children were dead.
78 She developed severe abdominal pains and IBS. The medical evidence details the difficulties that she faces with this condition which are of a very personal nature and which place her in very embarrassing situations. She receives treatment from her general practitioner approximately once a month. She takes medication on a daily basis for depression, gastro-oesophageal reflux and her bowel condition. As required, she takes Panadeine Forte for migraines; Imigran for visual disturbance with migraines; Temazepam for sleep and Valium for anxiety.
79 The plaintiff’s evidence was that whilst she had seen a number of psychologists and psychiatrists since the accident, she did not get much improvement from their treatment. Presently, she sees her general practitioner, who has provided her with counselling as required.
80 The plaintiff’s evidence was that she has relied upon alcohol, which she has reported to a number of the doctors whom she has seen.
81 The plaintiff spoke of the difficulties she encounters when driving. She said she drives locally but finds it “scary”. She is terrified when she sees vehicles like the frontend loader which collided with the family vehicle. She did not experience this prior to the accident.
82 The plaintiff’s evidence was that prior to the accident, she worked at the Ballarat Health Services but has also worked for a number of different hospitals as work became available. Her capacity to go to different places, work with different doctors and different types of patients was important to her as a career nurse, to her self-confidence and self-esteem. Since the accident, she has lost the capacity to work in other environments and to be listed on the nurses’ bank. She takes refuge in working in a place where she is comfortable, mostly with the aged with dementia problems, as she is only comfortable in a familiar environment. She took pride in her work and ability to provide for her family. I accept that this represents a significant loss to this plaintiff.
83 I am satisfied that the plaintiff was involved in a transport accident which, to the plaintiff, resulted in her experiencing symptoms of a psychological and psychiatric nature. The consequences to her are dramatic and affect nearly every aspect of her life as she knew it before she suffered the psychiatric disorder. I accept that the plaintiff’s psychiatric disorder is long-term. She has suffered for seven-and-a-half years and all psychiatrists and psychologists were guarded as to the future.
84 For the foregoing reasons, I am satisfied that the plaintiff has established that the pain and suffering consequences of her injury can be reasonably described as being long term and are more than serious to the extent of being severe as defined in s93(17)(c) of the Act. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of possible mental or behavioural disturbances or disorders.
85 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered by her arising out of the transport accident on 24 February 2005.
86 I will hear the parties in respect to the formal orders.
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