Millican v TAC
[2016] VCC 180
•11 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04674
| JAMIE LOUISE MILLICAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 January 2016 | |
DATE OF JUDGMENT: | 11 February 2016 | |
CASE MAY BE CITED AS: | Millican v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 180 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident; claim brought under s93 Transport Accident Act 1986 for serious injury as defined under s93(17) paragraphs (a) and (c); injury to right shoulder together with psychological trauma as a result of a motor vehicle accident in 2009; principles in Richards v Wylie, Humphreys v Poljak and Petkovski v Galletti applied
Legislation Cited: Section 93(17) paragraphs (a) and (c);
Cases Cited:Humphreys v Poljak [1992] 2 VR 129; Richards v Wylie [2000] VSCA 50; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave to bring a claim for damages refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A. MacTiernan | Hounslow Lawyers |
| For the Defendant | Mr J. Gorton QC with Ms K. Gladman | Transport Accident Commission |
HIS HONOUR:
Background
1 On 7 February 2009, Ms Millican was one of seven passengers travelling in a vehicle driven by her friend, Roz, along the Seymour/Tooborac Road. This was the day of the tragic Black Saturday bushfires which swept through the area to the north and east of Melbourne. The driver misjudged a corner, the car ran into the gravel, hit trees and rolled. The driver, who was a close friend of Ms Millican, was killed. Ms Millican was taken by ambulance to the Northern Hospital. She believed that she lost consciousness at the scene but now understands that it was she who flagged down another motorist and obtained help at the scene. According to one of her affidavits, she recalled “feeling in shock, being dazed and feeling pain in my right shoulder”. (CB2[9]).
2 Ms Millican was discharged from hospital the following day but she said that she continued to “experience ongoing right shoulder pain” and suffered headaches.
3 Aside from her right shoulder, she suffered bruising and lacerations to a number of other parts of her body, in particular, her face. These matters have long since resolved and insofar as concerns physical injury, this proceeding relates to the injury she sustained to her right shoulder.
4 Ms Millican’s general practitioner referred her for x-rays. She continued to suffer shoulder pain and was depressed. Her general practitioner, Dr Joseph Slesenger, referred her to psychologist, Mr Brian Lowe. She then underwent physiotherapy provided twice weekly by Mr David McPherson. Persisting shoulder pain led her to have an MRI scan. Following the scan she had a hydrodilatation of her right shoulder on 20 March 2009. This provided substantial relief “for a period of time but the symptoms [in the right shoulder] eventually returned”. (CB3[13])
5 Before the accident, Ms Millican was employed “picking and packing” and driving a forklift in a warehouse by food wholesaler, Senselle Foods. She attempted to return to that employment in the period March/April 2009 but she “could not cope with the physical demands of [the] work because of [her] right shoulder injury and because [she] continued to be emotionally and psychologically unwell”. She was made redundant from that employment in July 2009. (CB3[14], 4[17])
6 She said she continued to suffer psychological problems, “experiencing flashbacks and nightmares associated with the accident”. She “kept seeing the trees and feeling the car hitting the trees”. She “was unable to drive initially”. (CB3[15])
7 According to one of her affidavits:
“I was not coping and I was taking it out on my family. This caused a lot of tension with my husband [Sean, whom she married in approximately 2001] and we eventually separated. I found it increasingly difficult to cope with day to day activities. I was becoming isolated and very moody. I was having difficulty with family members and I was not coping.” (CB4[18])
8 In January 2012, Ms Millican moved to Corio and became a patient of Dr Johnston at the Corio Medical Centre. She said:
“I have pain in my shoulder which varies in intensity but is aggravated by activity. The pain tends to extend into the upper part of my right shoulder and into my neck. My physiotherapy treatment ceased when the TAC stopped funding it in early 2011 and since that time I have relied on medication and some home exercise that I had been shown to ease the pain”. (CB4[20]
9 She said her shoulder pain is aggravated by cold weather and the pain disturbs her sleep. When she does work around her house she “tends to pay for it if [she[ overdoes it”. She said, “For instance I am able to mop but the following day the pain in my right shoulder is worse”. (CB4[21]) She has to rely on her children to help her with her housework and even then has to take her time.
10 Ms Millican takes over-the-counter painkilling medication, Panadol and Nurofen. She says she consumes a packet and a half of Panadol per week and four Nurofen per week. (T10, L29-31). Ms Millican also takes the drug, Thyroxin, which she has been prescribed for many years for a thyroid condition. She also takes Pristiq (T10, L16-17). Pristiq is an anti-depressant.
11 As at March 2013 she said she continued to experience flashbacks to the accident, not as frequently as initially “but once every three to four days”. (CB5[29]).
12 At present, Ms Millican says she is affected by nightmares about once a week. (T34, L1-4) She wakes up in a sweat. She says she still suffers flashbacks but not with the same regularity. Her neighbour owns the same model car as was involved in the 2009 accident and she finds the sight of this vehicle distressing. These flashbacks are in the form of brief panic attacks. (T34-5)
13 Ms Millican was born in 1972 and has given birth to some six children. She has not seen one of them since the age of two and therefore does not class him as her child. (T29, L16-17) Her eldest son has left home and lives independently. Her youngest son, Ford (whose name was chosen by Ms Millican and her husband, Sean, is in honour of the Ford Motor Company) was born on 12 May 2013. (T77, L14 & 15) This means that four of her children remain under her care. The eldest of the four, Coady, continues to reside with his mother. The three older children had “ADHD (Attention Deficit Hyperactivity Disorder) and one of them, according to Ms Millican, is “part-schizophrenic”, that is, Coady, the 18 year old. The next eldest child receives anti-depressant medication because of a suicide attempt. (T39, L23-8; T40, L9-12)
14 Ms Millican’s long-term thyroid condition led to her having surgery to remove the organ on 16 January 2015. She said she was “quite shocked to be told afterwards that they found the thyroid to be cancerous and [she] needed to be treated with chemotherapy”. She is now in remission and has been given a good prognosis. (CB10-11[3]-[4])
15 Ms Millican’s relationship with her husband is somewhat complex. As the previous narrative indicates, they broke up at some stage after the transport accident and Ms Millican is inclined to attribute the break-up to her mental state as a result of the trauma from the accident. At some stage in 2013 they appear to have reconciled and it was as a result of the reconciliation that Ms Millican’s youngest son, Ford, was born. It seems that they split again in 2014. Nevertheless, they co-operate in care of the children and Sean, who is an interstate transport driver based principally in New South Wales, sometimes resides in a caravan parked on the property where Ms Millican lives. (T26, L8-15; T25, L3-24; T70, L16-23)
16 Ms Millican has sought funding from the Transport Accident Commission to have a corticosteroid injection in her right shoulder but it seems that the Commission has denied this funding.
17 Her second son, Coady, has now taken up speedway racing under the family racing name “Get Naked Racing”. He began practising and preparation for competition in January 2015. Initially, that entailed monthly attendances at the raceway. (T68) Now, with Coady involved in competition, Ms Millican attends the raceway fortnightly. (T63, L22-24)
18 Ms Millican seeks leave pursuant to s94(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence a proceeding for damages for her injuries in the 2009 transport accident, contending that she has suffered a serious injury both within the meaning of paragraph (a) of the definition of serious injury in s93(17) of the Act by reason of the organic injury to her shoulder and within the meaning of paragraph (c) of the definition by reason of the psychiatric sequelae to the accident.
Legal considerations
19Section 93 of the Act restricts the ability of a person injured in a transport accident to bring damages proceedings in respect to his or her injuries. Where a putative plaintiff has not obtained from the Transport Accident Commission an assessment of permanent impairment as a result of the accident of 30 per cent or more, then unless the Commission issues a certificate that the injury is serious or a court gives leave to bring the proceedings, the proceedings are barred (sub-s.(4)). Sub-section (6) stipulates that a court must not give leave “unless it is satisfied that the injury is a serious injury”.
20Serious injury is defined in sub-s(17) as follows:
“In this section-
pain and suffering damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
pecuniary loss damages means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
serious injury means-
(a)serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
21It will be recalled that in this proceeding the plaintiff relies on paragraphs (a) and (c) of that definition.
22The application of this definition is to be guided by a seminal analysis of the majority of the Full Court of the Supreme Court of Victoria in Humphries v Poljak [1992] 2 VR 129, 140. Crockett and Southwell JJ stated:
“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 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’?”
23In Richards & Anor v Wylie [2000] VSCA 50 the Court of Appeal dealt with the interaction between paragraphs (a) and (c) of the definition of serious injury. Winneke P, having reviewed the joint judgment in Humphries v Poljak, said:
“Thus, the judge, in making the inquiry, must be careful - particularly in cases where mental disturbances or disorders have supervened - not to lose sight of the focus which the definition in sub-paragraph (a) calls for lest he falls into the erroneous reasoning process of allowing the consequences of a mental disturbance or disorder to govern, or even intrude into, a finding of "impairment or loss of a body function". If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the "mental or ... behavioural disturbance or disorder" which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under sub-paragraph (c). Between the two extremes to which I have referred will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be, as Crockett and Southwell, JJ. pointed out, "anomalous" to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c). Although the textual distinction between sub-paragraphs (a) and (c ) has been touched upon in other decisions since Humphries v. Poljak (see, for example, Turner v. Love and The Transport Accident Commission) their Honours' statement of principle remains as a seminal statement of principle governing the interpretation of the sub-section and ought, in my view, to be followed.” ((2000) 1 VR 79, 87 [16])
24Buchanan JA delivered a short concurring judgment. Chernov JA also concurred, observing inter alia:
“I also agree that, for the reasons given by the President, the appeal should be allowed.
The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of "serious injury" in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a "serious injury".
It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the "anomaly" to which their Honours referred in Humphries v. Poljak which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a "serious injury" fell to be determined by the provisions of para.(c) and not para.(a).” ((2000)1 VR 79, 90-21 [28])
25Where the injury in question operates as an aggravation of a pre-existing condition, that aggravation must in itself meet the criteria of being a serious injury. It is not sufficient that the aggravation, when aggregated with the pre-existing and underlying condition, constitutes a serious injury. Petkovski v Galletti [1994] 1 VR 436, 443.
26Where an injury or disability could arguably be the result of another accident or some cause other than the subject accident, it is necessary to consider, for the purposes of the application of the definition of serious injury, only that injury or that part of the injury which is caused by the subject accident. The issue of causation is a necessary part of the enquiry of the s93 stage. It is not something which should simply be deferred until the hearing of the damages action should leave be granted. De Agostino v Leatch & Anor [2011] VSCA 249 [59]-[61] per Tate JA.
27 It is to be noted that with respect to paragraph (c) of the definition, relative to some psychiatric injuries, it appears that leave will be granted only if the disorder is “severe”. In Mobilio v Balliotis [1998] 3 VR 833, 846 Brooking JA said “I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.” The result then is that a plaintiff seeking leave under paragraph (c) of the definition must pass a more rigorous test than is required under paragraph (a) of the definition.
Expert opinions
28 The day after Ms Millican’s accident she underwent a battery of scans and x-rays of various body parts at the Northern Hospital. An x-ray of her right shoulder, according to the radiologist report, stated “No bony injury seen” (CB19c)
29 The following month, she was referred for radiological examination by her then treating general practitioner, Dr Slesenger. An x-ray of her right shoulder found “The glenohumeral and acromioclavicular joints are enlocated and there is no apparent bone abnormality”. An ultrasound scan of the right shoulder found as follows:
“There is fluid in the long head of biceps tendon sheath and proximally within the groove, tendon fibres are difficult to see but more distally, the long head of biceps tendon appears intact. There is some fluid thickening of the subdeltoid bursa. Subscapularis, supraspinatus and infraspinatus appear normal. The patient was quite unable to abduct the shoulder which may indicate that there is adhesive capsulitis, but ultrasound other than demonstrating a little fluid in the bursa has not found the cause for the total lack of abduction.
Depending on clinical circumstances, follow up study may be appropriate, particularly to reevaluated the proximal long head of biceps tendon.” (CB19g)
30 Later the same month Ms Millican undertook an MRI scan which was carried out at John Fawkner Private Hospital. The radiological report said:
“Clinical notes: MVA one month ago. Right shoulder pain persisting and reduced ROM. Ultrasound normal. ?cuff tear. ?labral tear. ?other derangement.
…
Findings: long head of biceps tendon is intact and enlocated. The rotator cuff is normal, a tear is not demonstrated. There is no fluid distension of the subacromial bursa.
There is no joint effusion nor marrow oedema and the AC joint has a normal appearance. The undersurface of the anterior acromion is flat and acromion orientation is normal. There is no labral tear. There is no convincing MRI evidence of capsulitis.
Conclusion:
1. Unremarkable study, in particular no evidence of rotator cuff or labral tear.
2. Although there are no convincing MRI features, the possibility of adhesive capsulitis is raised given the clinical notes provided. If there is clinical suspicion of this the patient may derive benefit from a shoulder hydrodilatation.” (CB19h)
31 The hydrodilatation appears to have been conducted on 20 March 2009. (CB19j)
32 Ms Millican’s treating general practitioner from 10 February 2012 to date has been Dr Bryan Johnston of Corio Medical Clinic. He reported, in a letter to Ms Millican’s solicitors of 21 June 2012, that he held his first consultation with Ms Millican on 10 February 2012. He said that Ms Millican’s then treatment for her shoulder included analgesics and anti-inflammatory tablets. “Regarding her emotional distress she has been prescribed Pristiq, an anti-depressant and been referred to Vernon Kaurah, a Mental Health Nurse, for counselling”.
33 The doctor said that Ms Millican was:
“Not fit for the work she did before the accident. Her shoulder problem makes her fit for only light work but her emotional distress precludes her from any work at present and I suspect [the] foreseeable future.”
34 He said that she required ongoing treatment for both physical and psychological problems. At that stage she had been prescribed Pristiq at the rate of 150mg daily and Tramadol at 50mg six hourly for pain relief. (CB20-21)
35 Dr Johnston wrote a further letter dated 12 December 2014 addressed “To whom it may concern” certifying that he had examined Ms Millican and that her shoulder ultrasound showed “sub acromial bursitis and impingement”. He suggested “she might benefit from ultrasound guided corticosteroid injection into the bursa”. He sought approval from the Transport Accident Commission. (CB24)
36 Dr Johnston wrote to Ms Millican’s solicitors in response to queries raised by them in his letter of 30 January 2015, stating that Ms Millican had long-standing problems with her right shoulder. He said that an ultrasound scan on 12 November 2014 showed sub acromial bursitis and bursal impingement. He said that on 21 August 2014, Ms Millican “presented to me with worsening psychological symptoms with increasing anxiety, weepiness, nightmares, low mood, and flashbacks for no obvious cause”. He referred her for further counselling in November 2014. He said:
“When last seen her shoulder problem was sufficiently severe as to preclude her from any duties…[and her] psychological issues were of such severity that she would not be able to perform any duties.” (CB25-26)
37 He provided a further report to Ms Millican’s solicitors by letter dated 29 December 2015, noting that Ms Millican had consulted him four times in the last 12 months and her last consultation was on 4 September 2015, “almost four months ago”. He noted that Ms Millican remained on Pristiq, “but at her last consultation still seemed to be experiencing significant psychological symptoms”. These psychological issues persisted despite appropriate medication. Therefore, unless a recent improvement had taken place, the psychological symptoms “would preclude a return to work”. He said it was likely that the shoulder and psychological conditions would “continue for the foreseeable future”.
38 As to her thyroid condition which, it will be recalled, was subject to surgery in January 2015, he said, “When last tested in August her thyroid was very significantly under controlled. This would have very significant effects on her health both physically and mentally”.
39 On 12 November 2014, on referral from Dr Johnston, Ms Millican underwent an ultrasound of her right shoulder. The findings reported were that:
“Biceps subscapularis, supraspinatus, and infraspinatus are intact. No tear. Bursa is thickened in keeping with bursitis. There is evidence of bursal impingement. Conclusion: subacromial bursitis and bursal impingement. Intact rotator cuff.” (CB30)
40 Ms Millican’s initial treating general practitioner was Dr Slesenger. In a report by way of letter dated 6 May 2009, Dr Slesenger said that following initial consultations and treatment, by 26 February 2009 Ms Millican was feeling much better with physiotherapy and her shoulder movements were normal. She had an exacerbation of pain in March and went to the Northern Hospital where she was recommended to have an ultrasound scan of her right shoulder. According to the doctor:
“This was reported as showing a normal x-ray of the right shoulder but the ultrasound revealed fluid along the long head of the biceps tendon and some fluid thickening around the subdeltoid bursa.”
41 He referred to the hydrodilatation on 20 March 2009, as a result of which he said “her symptoms improved substantially” but by the middle of March her mood had begun to deteriorate. He said:
“She was feeling weepy and tearful, sleep pattern was poor, motivation was poor, and her memory had become poor. The right shoulder pain was persisting and an MRI scan was requested. The MRI scan revealed no evidence of rotator cuff tear or labral tear, however the possibility of adhesive capsulitis was noted. She continued to have physiotherapy and her range of movements increased, however her pain also increased. Given the deterioration in her mood, she was also prescribed anti-depressants and referred to counselling.”
42 He said she was able to return to work, “however recently had to give up work as a result of the deterioration in her mood and her poor sleep”. He said she was “now certified unfit for work”. He said:
“1. She initially had a soft-tissue injury to the right shoulder and subsequently developed adhesive capsulitis and depression. Her capsulitis has resolved, her range of movements in her shoulders has improved, but her depression remains significant and she is having counselling and anti-depressants.
…
4. The main barriers to recovery are her current depression and the physical demands of her occupation (storeperson). Currently she is unfit to return to work. I anticipate that she may be able to return to work on reduced hours and I would anticipate that this would commence over the next 4-5 weeks.” (CB31-32)
43 The doctor provided a further report dated 5 November 2009 which also bears a rubber stamp date of 15 January 2010. In responding to a request for a report from Ms Millican’s solicitors, the doctor noted that he continued to treat Ms Millican for:
(i) post-traumatic stress disorder;
(ii) right shoulder sprain.
44 He said that since the previous report “she has had some improvement”. He referred also to difficulties she was having with her family and her subsequent loss of support. He said, “she was depressed and anxious and she was prescribed Zyprexa”. He thought that she was improving with Zyprexa and referred her for counselling with Mr Lowe. Ms Millican said she thought her improvement had stagnated as at May 2009.
45 The doctor noted a series of consultations and reviews which he carried out during the second half of 2009 – some 13 in number. He reported that Ms Millican’s condition was, at the time of the report, “stable”. He said that her mood had improved from where she was some months ago but continued to have:
“…a number of ongoing stresses that are causing her difficulty. Her physical impairment remains. She has pain in the right shoulder and now in the upper back and neck. She has a restricted range of movements but is attending for physiotherapy.”
46 He noted a continuing requirement for physiotherapy, anti-depressants and anti-inflammatories. He said, “I do not believe her condition has stabilised. I feel that she has some way to go before she shall see further improvement.” (CB33-35). Presumably, this was with respect to her shoulder.
47 In 2009, Dr Slesenger, referred Ms Millican to consultant psychiatrist, Dr Raid Al Humrany, for assessment. Dr Al Humrany reported his findings to Dr Slesenger in a letter dated 15 June 2009. (CB36-37) The doctor diagnosed Ms Millican as “suffering from obvious symptoms of post-traumatic stress disorder with episode of moderate to severe depression”. (CB37) At that stage he recommended continuing counselling for Ms Millican and prescribed Seroquel 25mg and Efexor 75mg. (CB37) Dr Al Humrany provided a further report to Ms Millican’s solicitors dated 20 January 2010. The doctor took a history of family problems following the separation of her parents, with her mother entering a new relationship, “She told me that issue created a lot of anger, frustration within the family and blaming the mother for her action”. This led to a period of depression for Ms Millican. (CB38)
48 The doctor said at a second consultation with Ms Millican on 21 August 2009 she described having made:
“…very good progress within the last period (that is, since his first consultation with her), however she described an incident (family incident) which was traumatising and affected her mood in a bad way. Following that incident, she told me that she became low, touchy, frustrated, tearful and emotional and some impairment with her sleeping and appetite.”
49 He referred to the special needs of her children, including the diagnoses of ADHD. He referred to one daughter having epilepsy. This is presumably a reference to Justiss, Ms Millican’s second youngest. Dr Al Humrany’s conclusion was as follows:
“In response to your enquiries, and based on these two interviews, I do believe that Mrs Millican was suffering from element of PTSD in the past, improved with an Adjustment Disorder and Secondary Anxiety and episode of Depression (moderate in type). At that stage (on the last interview), I did notice that her mental state was partially impaired, mainly due to family problem, in regards to her previous accident Mrs Millican told me that her mental state was positively progressed and was able to resume her previous level of functioning and dealing and caring for her children and her house duties in an adequate way.” (CB40)
50 It is plain that something has gone astray with the punctuation in the latter part of this paragraph. Presumably, there should be a full stop after the words “mainly due to family problem” with the last sentence in the paragraph beginning “in regards to her previous accident…”.
51 Ms MacTiernan submitted, on behalf of the plaintiff, that this last sentence should be regarded as referring to the situation before the transport accident. I will have more to say on the proper construction of the diagnosis in due course.
52 At the request of Ms Millican’s solicitors, she was assessed for medico-legal purposes by Associate Professor N Paoletti, consultant psychiatrist, who provided a report dated 24 February 2010. (CB41-54) The assessment occurred on 24 February 2010. The doctor took a history of some emotional issues within Ms Millican’s family, that is, her parents and siblings, noting a brother suffering from schizophrenia and her mother being seriously depressed and having attempted suicide. The doctor quoted Ms Millican as saying “and I’ve lost two uncles with it”. Presumably that means suicide. Ms Millican, according to the history, did not smoke and drinks occasionally at parties “not much” and does not use illicit drugs. (CB43)
53 The doctor noted Ms Millican complaining of a lot of pain in her right shoulder blade and the top of the shoulder with limited movement. (CB44) He said that Ms Millican had been on anti-depressants but was not currently on any medication. (Ibid) Professor Paoletti said that Ms Millican suffered true flashbacks, that is, not merely intrusive memories but true perceptual flashbacks. She is an anxious passenger and anxious when she sees a vehicle similar to the one in which she was injured. She told the professor that she had withdrawn from people and had just started to go out. Sometimes she didn’t even answer the phone. The professor also noted complaints of disturbed sleep, poor appetite and a drop in libido, with poor memory and concentration. (CB46)
54 The professor diagnosed Ms Millican as suffering a post-traumatic stress disorder and a separate anxiety disorder. He said:
“…a separate diagnosis [of anxiety] is warranted because of the specific anxiety in traffic situations, which presents a different problem, with a different outlook and treatment than the post-traumatic stress disorder”. (CB49)
55 He also diagnosed a major depressive disorder single episode in partial remission, remarking “Mrs Millican has had symptoms of depression at a level that warrants a separate diagnosis” [from the depressive symptoms present in post-traumatic stress disorder]. (CB49) He found an overall total psychiatric impairment in accordance with the guide published in the Victorian Government Gazette of 27 July 2006 of 30 per cent, with 20 of those 30 percentage points attributable to accident-related matters. He said, “Mrs Millican has no current work capacity, nor in the foreseeable future, given the level of her symptomatology.” (CB51)
56 The professor furnished a second report to the solicitors dated 25 October 2011 that described “as finalised 9 February 2012”. He re-examined Ms Millican on 25 October 2011 when she told him that since his previous consultation she had “probably gone downhill a lot”. (CB56) Ms Millican complained of flashbacks to the accident and getting “very, very angry with it all”. He said that she did drive but avoided it as far as possible, preferring tram or train. (CB56) Ms Millican was an anxious passenger and one who “cringes” at the sight of a Holden Captiva [the vehicle in which she sustained her injuries]. (CB57)
57 According to the report:
“Sometimes, she still feels suicidal.
She cannot enjoy things.
She has a very poor appetite…
She has no sexual interest.
She does not really go out – she just sits at home…”
58 The doctor took a history of an anti-depressant, Pristiq 50mg, Thyroxin for her thyroid complaint, Tramal, an analgesic, and Panadol. (CB57)
59 Ms Millican continued to see a counsellor, Ms Carol Schmidt. Ms Millican complained that she could not return to work because of her shoulder and she struggled even when putting her washing on the line. If it were not for her shoulder she said she would “love to go back to work”. (CB58) She reported a separation from her husband in August 2010.
60 The professor noted that the present transport accident was the only accident in which Ms Millican had been involved, according to the history she gave him. (CB59) The professor noted that in 2009, Ms Millican was assaulted in circumstances where she had recommended that a victim of abuse should complain to the police, and she and Ms Millican were assaulted by the offender. He also took a history of health problems with Ms Millican’s children. (CB59)
61 The professor made a similar assessment of impairment (CB61-62) as he had previously, finding an overall 20 per cent impairment attributable to the accident with a total impairment of 30 per cent. The balance being attributable to “allowance for background/intercurrent factors”. The non-accident impairment was described as follows:
· There may be a constitutional loading, given the family history.
· The low functioning thyroid may contribute at times when the thyroid hormone is not corrected properly.
· Family issues, including the children’s illnesses, now cleared diagnostically…or treated.
· The assault. (CB63)
62 The professor carried out a third consultation and assessment on 23 October 2012. He recorded an increase in the dose of Pristiq. (CB69) The doctor recorded a move by Ms Millican to Lara, noting “she does not mix anymore, unless friends ring and come to visit her from Melbourne”. He said she is still not 100 per cent with cars and came to the consultation by train and tram. (CB69) He said she continues to be an anxious passenger and to suffer flashbacks. (CB70) The flashbacks were settling but particular events bring things back, such as seeing a Holden Captiva, Anzac Day (her deceased friend was an army veteran) and November (the birthday of the deceased). She continued to suffer from nightmares. (CB70) By that time, the Pristiq dosage had increased to 150mg and she continued to take Tramal and Panadeine Forte. (CB71) His diagnoses were the same as previously. (CB73). He said:
“…the depression has improved to a degree, but she is anxious, with panic attacks and traffic phobia and still has considerable symptoms of post-traumatic stress disorder.” (CB74)
63 The professor carried out his final assessment of Ms Millican on 22 January 2015. At CB79 he noted Ms Millican saying at that consultation, “I have had a lot of bad days…they have upped my medications”. He noted that she felt depressed “`She lack[s] steam’ to do anything [and] “`just sit[s] at home` and `won’t go out`”. She said, according to the professor, “I am mentally drained…some days I have no energy to do anything at all”.
64 He said that Ms Millican continued to be anxious in traffic and an anxious passenger. She was able to supervise her son as a learner driver. However, she continues to have daytime flashbacks once or twice a week. (CB80) According to the professor, “She sees friends when they come to her home, and they are very supportive”. She does not go out socially at all. “No, I stay at home…the only time I go is with the kids shopping”. (CB81)
65 As to her medication, he noted “She has ‘gone off everything for pain’, because Panadeine Forte was not helping her and anything stronger was sedating her.” (CB81) The professor noted that Ms Millican’s treating general practitioner sought funding from the Transport Accident Commission for cortisone injections. (CB81) He took a history that Ms Millican and her husband had got back together and she had conceived her youngest child [that is, Ford] but the reunion “only lasted six months”. She and her husband were separated but not divorced. (CB82)
66 The doctor made the same diagnoses as previously (CB84) and said the transport accident was the prime cause of the post-traumatic stress disorder and a significant contributing factor to the anxiety and depression. (CB84) The doctor said that the prognostic outlook was static for the foreseeable future and guarded overall. From a psychiatric point of view he said:
“the level of symptoms is such that she would not have a meaningful and sustained work capacity in the open job market, and this is likely to apply to the foreseeable future.” (CB85)
67 As to Ms Millican’s right shoulder, her solicitors referred her to Mr John O’Brien for medico-legal assessment which occurred on 24 February 2010. He provided a report to the solicitors of 11 March 2010. (CB88-93) The doctor noted right shoulder flexion of 130 degrees with 90 degrees abduction, 10 degrees extension, 0 degrees adduction, and 40 degrees internal rotation and 60 degrees of external rotation. He said, “Movements were associated with pain”. (CB89)
68 He found tenderness over the anterior and superior aspects of the right shoulder “and quite marked tenderness over the posterior aspect of the upper right scapula”. (Ibid) He found no evidence of abnormal neurology in the upper limb. Mr O’Brien noted that the MRI scan of 17 March 2009 was unremarkable but suggested the possibility of adhesive capsulitis. He noted, “Signs now relate to painful restriction of movement of the right shoulder. Indeed, the generalised restriction of movement suggests underlying capsulitis of the shoulder joint.” He noted, “The underlying pathology of capsulitis will in fact persist”. (CB90) He said that Ms Millican presented with a moderate disability in relationship to the functioning of her right dominant arm and shoulder. This had prevented her from going back to work. “In fact, the patient in my opinion would not be capable of undertaking employment, which involved any moderate physical activity”. (CB91)
69 In a supplementary report dated 3 May 2010, whilst he had in his principal report found an eight per cent whole person impairment in accordance with the 4th Edition of the AMA Guides relative to the right shoulder, he found zero per cent impairment of the cervico-thoracic spine. (CB94)
70 Mr O’Brien conducted a further examination of Ms Millican at her solicitors’ request on 10 October 2012. He reported:
“…constant pain in the right shoulder extending to the upper aspect of the right shoulder blade aggravated by use of the right arm. The patient indeed demonstrated moderate restriction of movement of the right shoulder which vaguely appeared to indicate the presence of capsulitis of the joint, which had appeared to have reached a stable situation.” (CB95)
71 Ms Millican told Mr O’Brien that there “had been basically no change in relationship to her right shoulder pain” since the previous examination. (CB96) He noted:
“Ms Millican stated that she is capable of the normal activities of daily living. She lives with her three children, and stated she shares the house with a girlfriend who helps with rent and some domestic tasks. Ms Millican indicated that she does drive a car.” (CB96)
72 He said that at the first consultation in 2010 there “appeared to be evidence of a capsulitis of the shoulder” and at the time of the second assessment there was “…obviously continuing mild capsulitis and now some clinical evidence of rotator cuff tendinopathy, which I would suggest is indicative of the ongoing inflammatory process within the shoulder.” (CB97)
73 Mr O’Brien said that Ms Millican was “significantly limited in her general, social, domestic and recreational activities and this appears likely to be a permanent situation”. (CB98)
74 Mr O’Brien made his final assessment of Mrs Millican on 14 January 2015. He said that at the time of his re-examination there was “some improvement in the range of shoulder movement which I felt was perhaps more in keeping with some rotator cuff pathology. (CB100) Nevertheless, according to Mr O’Brien, there had been “no real change in relationship to the nature, distribution or severity of her right shoulder pain”. (CB101)
75 On examination, he found no obvious muscle wasting associated with the right shoulder and right shoulder flexion was 140 degrees with some 120 degrees of abduction. Extension was 40 degrees with 20 degrees adduction and 70 per cent of internal and external rotation. “The patient certainly described flexion and abduction as limited by shoulder pain”. He noted tenderness over the anterior and lateral aspects of the shoulder with maximum tenderness posteriorly above the spine of the scapula. (CB101). He said the signs:
“..now involve continuing restriction of both flexion and abduction of the shoulder, there being noted now to be no basic restriction of rotation. Clinically normal rotation would exclude any glenohumeral capsulitis. The persistent restriction of flexion and abduction was more in keeping with pathology associated with the right rotator cuff. In fact it is basically consistent with the recent ultrasound findings which reported bursal thickening and impingement. The chronic pathology would appear to explain the patient’s chronic pain with continuing restriction of flexion and abduction.” (CB102)
76 Mr O’Brien said that the condition is stable. “It does seem unlikely that this patient would be capable of any form of suitable employment, and thus I would again conclude that the patient basically remains totally incapacitated”. (CB102)
77 The Transport Accident Commission had Ms Millican assessed by Dr Philip Mutton, a consultant occupational physician, who furnished a report dated 17 December 2009 relative to an assessment that took place on 24 November 2009.
78 Dr Mutton found “There is ongoing capacity in relation to the right shoulder and her psychiatric condition.” (CB108) Nevertheless, according to the doctor:
“There is minimal impact in terms of daily living activities. She has not returned to work although she has capacity to return to work in her opinion to her pre-injury duties if they were available.”
79 Dr Mutton said that she could undertake work and perform her activities of daily living “providing she works within a restriction of 7.5kg and avoidance of repetitive overhead work with the right shoulder”. These restrictions, he said, were “likely to be required in the shorter term only”. (CB108) Within these stipulated restrictions, according to the doctor, on a physical basis Ms Millican would be 100 per cent able to meet the physical requirements of her work. (CB109)
80 Ms Millican was also assessed for medico-legal purposes by Mr Michael J Dooley, orthopaedic surgeon, at the request of the Commission. The examination took place on 18 December 2014 and Mr Dooley provided his report to the Commission by letter of 17 January 2015. Mr Dooley noted no obvious wasting of the shoulder girdle musculature. He did, however, note tenderness mainly over the medial aspect of the scapula. (CB139) According to Mr Dooley, “Mrs Millican reports that over the last 12 months or so her symptoms have worsened to a degree where right shoulder pain is constant and severe”. (CB140)
81 Mr Dooley said that Ms Millican had suffered a soft tissue injury to her shoulder girdle. He continued:
“I do not believe that she sustained specific injury to the glenohumeral joint, rotator cuff region etc. It is stated that MRI scanning in March of 2009 showed no evidence of rotator cuff pathology, labral tearing etc. The recent ultrasound investigation reporting some thickening of the subacromial bursa again is a non specific finding that would not be unusual in middle age patients. I do not believe that the radiological finding of bursal thickening nearly six years after the motor vehicle accident has any relationship to the motor vehicle accident itself.”
82 He said that her presentation:
“…relates to her psychological condition. I do not believe that Mrs Millican has adhesive capsulitis of her shoulder. True adhesive capsulitis is a fairly specific condition of the shoulder that runs a fairly predictable course. It does not cause ongoing increasing pain nearly six years after the accident and it does not come and go.” (CB140)
83 He said further organic treatment for Ms Millican’s shoulder would lead to disappointment. He did not exclude the possibility of using a cortisone injection but “the outcome of such treatment is unpredictable”. (CB140) Mr Dooley said, “From an orthopaedic viewpoint only, I do not believe that Mrs Millican requires specific ongoing treatment”. (CB141) He said even if there were some sort of injury to the rotator cuff area in the accident, “it could not explain the constancy and intensity of Mrs Millican’s ongoing pain, her deterioration in time and her described disability”. (CB141) He concluded that, from an orthopaedic point of view, he “would have expected Mrs Millican to have noted some occasional or intermittent shoulder girdle pain. [He] would not have expected her orthopaedic condition to deteriorate in time.” (CB142)
84 As to psychiatric issues, the Commission had Ms Millican assessed by consultant psychiatrist, Dr Nicholas Ingram. Dr Ingram provided a report dated 10 April 2010, having assessed Ms Millican on 14 January of that year, at which time he:
“…felt that she had been suffering from a chronic adjustment disorder with depressed mood causing 14 per cent secondary impairment as well as mild residual symptoms of a post-traumatic stress disorder causing five per cent primary psychiatric impairment”. [These percentages presumably assessed in accordance with the guides published in the Victorian Government Gazette in 2006 for assessment of psychiatric impairment as a result of transport accidents.]
85 Since the consultation, Dr Ingram had been referred to Dr Mutton’s report. He read the report from Dr Mutton as expressing the view that Ms Millican’s:
“musculoskeletal injuries were [not] a significant barrier to her returning to work and [that] he did not feel there was any ongoing incapacity in relation to her right shoulder.”
86 Dr Ingram noted that according to Ms Millican, she would be unable to work “because of the pain in her shoulder, which became worse with activity”. (CB112)
87 Dr Ingram, however, said that whilst he agreed with Dr Mutton that psychiatric symptoms contributed to some degree to Ms Millican’s inability to work:
“I do not believe that they on their own are sufficiently severe [that] they would prevent her working altogether, although they may contribute to a loss of motivation and concentration.”
88 He continued:
“The problem is that Mrs Millican’s main complaint is one of pain, seemingly without an obvious organic cause, but this does not make it any less real or purely psychological, as pain is a complex [scil] phenomenon with many contributing factors.”
89 Dr Ingram accepted that Ms Millican’s admitted depression would contribute to her perception of pain. Nevertheless, he believed she should be referred to a specialist relative to her shoulder:
“…as she clearly believes there is something wrong with it and she has had no improvement in her shoulder symptoms after seeing her local doctor for a year”. (CB113)
90 Dr Ingram provided a full scale psychiatric report by way of letter dated 15 April 2010. This report referred to the assessment date as being “Thursday 15th January 2010”. Presumably, despite the inconsistency of this date, 15 January, with the date referred to in his letter to the Commission of 10 April, there was but a single assessment and consultation with Ms Millican in January of 2010.
91 In the report, Dr Ingram said, “Using the AMA Guides 4th Edition for psychiatric impairment” [presumably this should refer to the guides published in the Victorian Government Gazette for evaluation of psychiatric impairment] he found an overall psychiatric impairment of 19 per cent. (CB117) Dr Ingram found a 14 per cent impairment relative to a chronic adjustment disorder with depressed mood and five per cent impairment relative to post-traumatic stress disorder. It would seem that the doctor accepted the whole of the psychiatric impairment as being accident related. He said that Ms Millican had:
“significant depressive symptoms which…are interfering with her ability to enjoy her life. As of yet I do not feel she has had appropriate treatment for her depression and I think she should be started on antidepressants with the dose pushed up to two or three tablets a day if necessary.”
92 He felt that as at January 2010, Ms Millican’s condition was not stable. (CB118)
93 Mr Ingram carried out a further psychiatric assessment on 9 December 2010 providing a report to the Commission by way of letter of the same date. According to the doctor, Ms Millican intended to visit her local TAFE [that is, Technical & Further Education] institution about a secretarial course with a view to employment as a receptionist. (CB120)
94 In cross-examination, Ms Millican denied that she entertained any such possibility. She said it was the doctor who made the suggestion, not her. The doctor recorded a history of a slight improvement in the shoulder injury since first consultation. (Ibid) The doctor recorded Ms Millican as stating that her main psychiatric problem was depression and this derived principally from the pain which she suffered in her shoulder.
95 The doctor said that nightmares continued but were becoming less frequent, though Ms Millican was troubled by panic attacks in the months prior to his assessment. Dr Ingram said, “These panic attacks had come on about three or four times a week and had usually lasted more than five minutes and she wondered if they had been associated with the deterioration in her marriage”. (CB121)
96 Dr Ingram assessed her impairment in accordance with the evaluation rules at 16 per cent. Impairment derived from a chronic adjustment disorder with depressed and anxious mood accounted for 14 per cent. Four per cent of that “related to the recent breakdown of her marriage”. He assessed her post-traumatic stress disorder symptoms at two per cent and he believed there had been improvement in the post-traumatic stress disorder. (CB122) Dr Ingram did not believe that the psychological symptoms would prevent her from working. (CB123)
97 Dr Ingram’s next assessment of Ms Millican was on 20 January 2015. He provided a report by way of letter to the Commission on the same day. The doctor noted that Ms Millican had been receiving a dosage of 200mg Pristiq per day with the dose being reduced to 150mg per day some six months previously. (CB126) Ms Millican’s evidence at the trial was that the present dose of Pristiq is 200mg.
98 Dr Ingram, in his most recent assessment, found Ms Millican suffering an adjustment disorder with depressed mood leading to an 11 per cent impairment on psychiatric grounds and 4 per cent impairment based on post-traumatic stress disorder. Again, it would seem that the doctor accepted the whole of this impairment as being accident-related. (CB127-8)
99 The doctor provided a supplementary report to the Commission dated 1 December 2015 based on some material from Mrs Millican’s Facebook site. He commented:
“She is possibly more active as shown by her Facebook pages than was the impression she gave me in my interview with her in January 2015, and she seems to have mowed the lawns on one occasion, though I am not sure that this is all that significant.”
100 He saw little reason to change his opinion. (CB129)
Conclusion
101 I turn first to the issue of psychiatric impairment as dealt with in paragraph (c) of the definition of serious injury. I note first that I did not understand either party to distinctly advocate the view that Ms Millican suffered a psychiatric injury based upon the view that her shoulder was impaired on purely functional grounds. That is, that the pain and restrictions of which she complained were the result of some form of non-organic pain syndrome. No one has diagnosed what the diagnostic manuals describe as “abnormal illness behaviour” or chronic pain syndrome.
102 The diagnoses which have been given by the psychiatrists include post-traumatic stress disorder, depression and chronic adjustment disorder with depressed mood. These are various analytical categories. In reality, they are not entirely distinct disorders in the same way that one could regard a fracture of the left leg as being an entirely separate disorder from a dislocation of the right shoulder.
103 Ms Millican did unquestionably suffer from post-traumatic stress disorder. The histories which she has given various examiners indicate that she is still a reluctant driver and seeks to avoid driving. Nevertheless, the work which she undertakes in the care and rearing of her children necessitates her taking frequent, at least shorter, journeys. Again, the unchallenged evidence is that she has suffered nightmares and flashbacks to the horrifying transport accident of 2009. Nevertheless, the flavour of the answers which she gave in cross-examination and to the psychiatric examiners suggests that these symptoms are becoming more attenuated over time.
104 Ms Millican was cross-examined at some length upon a large volume of material which was downloaded from her Facebook site. It was put to her that this material gave the lie to the image which her case generally gave of a woman substantially housebound and reduced to watching television.
105 In my view, this Facebook material put into evidence by the Commission supports its contention that Ms Millican’s depression has been less intense than the histories which she has given and the affidavits which she has sworn would lead one to believe.
106 There was a further bundle of material from her Facebook site which was put into evidence by her own counsel. These merited the description given by Ms MacTiernan of being “maudlin”.
107 Counsel for the Commission submitted that this further material (Exhibit A) should not be given credence as to the severity of Ms Millican’s depression because, they submitted, it was uploaded after a compulsory conference in this proceeding held in February 2015 at which Ms Millican was confronted with material from her Facebook site, with the Commission suggesting it gave the lie to the severity of her depressive symptoms.
108 The Commission submitted that the pages in Exhibit A were added to the site specifically to negate this sort of argument rather than as a genuine reflection of Ms Millican’s mood. Most of these posts bear dates, months, but no year. Counsel were agreed that the dating protocol on Facebook is that material bearing a date without a year has been uploaded in the year in which the printout was downloaded. These items were downloaded in 2015 and nearly all material post-dates the compulsory conference. It follows that, as to these pages, I regard them as self-serving.
109 Ms MacTiernan drew my attention to what appeared to be a posting by Ms Millican on 11 August 2014, which seems to be material posted by a Ms Cohen and three others on 29 April 2014. It bears the text next to the picture of a woman gazing into the distance:
“And sometimes it hits me out of nowhere all of a sudden, this overwhelming sadness rushes over me. And I get discouraged and I get upset and I feel hopeless, sad, and hurt. And once again I feel numb to the world”.
110 I accept that depression was and is a part of Ms Millican’s life. This posting is an expression of that. The overall effect of the Facebook material remains, however. Depressive symptoms should therefore be regarded as less intense than the psychiatric examiners who were reliant upon histories which she gave might have supposed.
111 This is consistent with the admissions which Ms Millican quite readily and properly made in cross-examination as to her social interaction with friends, her ability and willingness to play hostess when friends visit and “get togethers” occurred at her house, the work that she does in support of the rearing and education of her children and so on. In particular, she agreed that she now makes regular visits to the speedway in support of her son, Coady, who has taken up the sport. She began visiting the speedway on at least a monthly basis over a year ago when he began training and testing. Coady has succeeded to the family’s racing team named “Get Naked Racing”.
112 Ms Millican has also placed reliance upon affidavits from friends and family members. One deponent said “when she gets depressed she pushes people away. This is her way to cope.” The depression which Ms Millican suffered, according to the deponent, has caused her to lose touch with family and friends. The same deponent says of Ms Millican “she has yelled at me at times, but I understand her predicament and don’t take it personally like others do”.
113 Her son, Coady, complained that the accident ruined his mother’s life. He said that she turned to drink to deal with her emotions. He said that he had his girlfriend move in because his mother needed company and should not be left alone with her thoughts. Coady said:
“I wish I could make everything better. It is very hard to see your parent cry almost every day. No one should have to deal with the pain and suffering my mum and family deal with every day.”
114 The other deponent, Ms Millican’s friend, said that Ms Millican:
“…very rarely leaves the house unless she absolutely has to. She has friends visit them on weekends because she likes to check on how the children are rather than go out. There are very few that stay around for the hard days because [she] likes to detach herself and people don’t understand her way of coping and take it personally.”
115 The Facebook material indicates that, whilst this may have been an accurate description of the situation in the past, it is a substantial exaggeration of how bad things are now.
116 Ms MacTiernan submitted correctly, as far as I can see, that none of the material or admissions relied on by the Commission shows Ms Millican going out of the house other than with her children. It is plain, I think, that Ms Millican’s life revolves around her children and this consideration in itself is not, in my view, indicative of depression or a psychiatric impairment.
117 For these reasons, the intensity of Ms Millican’s psychiatric impairment is of the order found by Mr Ingram rather as found by Professor Paoletti. It must be said, however, that whilst this level of functioning, on these findings, is impaired, but only to a relatively mild extent, it is maintained only with regular and heavy doses of Pristiq, an anti-depressant. I express no view as to whether the plaintiff’s psychiatric presentation as a whole would meet the requirements of paragraph (c) of the definition of serious injury because, in my view, at least a third, and perhaps a half or more, of that impairment is to be attributed to non-accident related causes.
118 Professor Paoletti, it will be recalled, whilst finding a 30 per cent whole person impairment based on psychiatric considerations, ascribed fully one-third of it to non-accident related consideration. These represented constitutional factors and family history, Ms Millican’s thyroid condition, and more current family issues. These matters do not seem to have weighed with Dr Ingram, but it appears that he took a less full history than Professor Paoletti.
119 One family issue which emerged in cross-examination, which seems not to have been mentioned to the examiners, entailed an accusation by an in-law against Ms Millican herself of child sexual abuse, which entailed attendance by police officers at Ms Millican’s home to investigate the allegation. She said that once the investigation was complete, the stress relative to this matter was at an end, an answer which seems to me, with respect, somewhat unrealistic. (T12, L17-26)
120 It is also noteworthy that the only psychiatrist who saw Ms Millican for treatment, as distinct from medico-legal assessment, found that at the time of Ms Millican’s consultation with him on 21 August 2009, her psychiatric impairment was “mainly due to family problem” and that she had largely got over the consequences of the accident. Having read this passage several times (it is quoted above at [49]), I am unable to read the sense in the way advocated by Ms MacTiernan. The full stop should be after the word “problem”. The final sentence refers to Ms Millican’s condition after the transport accident.
121 When attention is focused upon the accident-related depression and post-traumatic stress disorder, and these other matters are removed from the equation, the psychiatric impairment simply fails to meet the criterion of severity which the definition in paragraph (c) requires.
122 I turn then to the organic injury to the shoulder. The problem with accepting this as a serious injury, in accordance with paragraph (a) of the definition, as that definition has been interpreted in the authorities quoted above, is the almost complete absence of any pathology to account for the pain and restrictions of which Ms Millican complained. It was common ground that capsulitis is not a long-lasting condition (T134 L12-19) and there is no suggestion that it persists now. In viva voce evidence Ms Millican complained she now drinks to excess. This was not part of her history to examiners or in her Affidavits. She denied excessive drinking in her history to Professor Paoletti [52] supra. Ms MacTiernan submitted that these inconsistencies were due to `a lack of insight’ as to relevance (T163 L4-13). This is difficult to credit. Ms Millican perceived relevance to add this as a further accident-related symptom to complain of. Ms Millican’s case was presented on the basis that she has been in fulltime work in warehousing since she was 15 except for periods of 6-7 months maternity leave. Her taxable income for the years 30 June 2007 to 2010 summarised at CB174-75 scarcely bear this out. They seem to show less than fulltime employment. She seems to have had a break of 14 months following the birth of her daughter, Justiss (T170 L14). Her family responsibilities now fill her life. She receives a Supporting Parent’s Pension (T71 L7). Independent of any injury which may persist from the transport accident, these matters keep her out of fulltime employment.
123 Mr O’Brien has drawn attention to a finding of bursal thickening in the subacromial area but, as Mr Dooley correctly noted, the appearance of such a finding six years after the accident is difficult to attribute to the accident. The symptoms complained of would appear to indicate some damage to the rotator cuff yet all investigation emphatically exclude any such injury.
124 The plaintiff’s friend, deposed to having seen Ms Millican “regularly having trouble picking up Ford, her youngest son, if he has fallen over or just to give him a hug”. Yet Facebook photographs show Ms Millican holding Ford at his christening with both arms, including the right one presumably after having picked him up.
125 I do not accept that the evidence makes out a serious long-term impairment or loss of function of the right shoulder. Certainly, the consequences of the organic injury to the right shoulder, whatever they may be, could not be described as “very considerable” in the classic formulation by Crockett and Southwell JJ in Humphries v Poljak [1992] 2 VR 219, 140 quoted above.
126 Leave to bring a claim for damages is refused.
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