Murphy v TAC
[2022] VCC 446
•6 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-01625
| SARAH DEBORAH HACKETT (NEE MURPHY) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 8 April 2021 | |
DATE OF JUDGMENT: | 6 April 2022 | |
CASE MAY BE CITED AS: | Murphy v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 446 | |
REASONS FOR JUDGMENT
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Subject:Transport accident
Catchwords: Serious injury; Physical and psychiatric injuries; Disentanglement; Extent of consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission v Katanas [2017] HCA 32; Mobilio v Balliotis [1988] 3 VR 833 at 846; Turner v Love (1995)
21 MVR 314; Shock Records Pty Ltd & Anor v Jones [2006] VSCA
180; A.G., Staff Pty Ltd v Filipowicz [2017] VSCA 60; (2012) 24
VR 309; Richards v Wylie [2000] 1 VR 79; Middlecoat v VWA
[2019] VCC 369; Serbec v VWA [2020] VCC 1372
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Winneke QC with Ms A. Bannon | Henry Carus Lawyers |
| For the Defendant | Mr W. Middleton QC with Ms J. Clark | HWL Ebsworth |
HIS HONOUR:
Introduction
1Sarah Hackett was a passenger in a four-wheel drive vehicle being driven in an off road area near Thomson in Gippsland on 19 November 2016. The vehicle was being driven by her husband and rolled over in steep terrain on White Star Track. She and her husband were camping in the area with friends.
2Immediately following the incident Ms Hackett became aware of pain mainly in her back and neck regions and also in the right knee. She was taken by ambulance to the Latrobe Regional Hospital and discharged two days later.
3At the time of this incident Ms Hackett was aged 31 and was described by Mr Winneke QC, who appeared with Ms Bannon on her behalf, as a “young healthy woman. She was in her prime. She had everything going for her. She was in good physical health, she was in good psychological, psychiatric health.”
4Her physical injuries particularly affecting the neck and the right knee have persisted to cause adverse consequences for her. She also developed what was described as a post traumatic stress disorder, panic attacks and a suggestion of major depression.
5In the present application she seeks leave pursuant to s 93(4) of the Transport Accident Act 1986 (“the Act”) to claim damages at common law in respect of her injuries on the basis that her physical, or alternatively her psychological condition, satisfy the statutory definition of a “serious injury.” Insofar as paragraph (a) of that definition is concerned, Mr Winneke QC identified both the neck and the right knee as the body functions said to be relevantly lost or impaired.
6Mr Winneke QC maintained that the post traumatic stress disorder involving the panic attacks with the depressive condition satisfied the “serious injury” definition described in paragraph (c). He indicated that it was the severe mental or severe behavioural disturbance or disorder that would be the prime focus of Ms Hackett’s application for leave.
7Mr Middleton QC, who appeared with Ms Clark for the defendant, opposed the grant of leave noting that the plaintiff would need to disentangle the consequences said to flow from the two physical injuries and the psychiatric injury in order for leave to be granted. He also made reference to the general improvement which had occurred since 2016 and the lack of medical treatment being received by the plaintiff in recent times.
8Ms Hackett was the only witness required for cross-examination. The parties otherwise tendered material from the joint court book as evidence in the case.
The lay evidence
9Ms Hackett swore two affidavits in support of her application on 9 December 2020,[1] and 6 April 2021.[2] Two further affidavits were sworn by her husband, Daniel, on 18 January 2021[3] and her mother, Robyn Murphy, on 29 January 2021.[4]
[1]Exhibit B, pp 8-16
[2]Exhibit B, pp 220-224
[3]Exhibit B, pp 16-20
[4]Exhibit B, pp 21-24
10Ms Hackett’s first affidavit sets out the following matters relevant to her application:-
· At the time of the transport accident she was working full-time as a multi‑site manager for a menswear retailer.
· She described herself as being in excellent health but suffered from asthma and had suffered some depression following a relationship breakdown in 2014.
· Following her discharge from the Latrobe Regional Hospital after the transport accident, she consulted her regular general practitioner Dr Addis some eight days later, suffering from pain mainly in the neck, knee and chest.
· She attended the Knox Hospital on 11 December 2016 after suffering severe chest pain. At that stage a previously undiagnosed sternum fracture was found.
· In late 2016 she consulted a thoracic surgeon, Associate Professor Choong, and during 2017 tried various forms of conservative management, including osteopathy with Ms Penelope White.
· Her psychological state deteriorated during 2017 and she was referred initially to two psychologists and eventually a psychiatrist, Dr Illesinghe, who she saw initially on 4 September 2018.
· She was prescribed a variety of medications for her mental health issues, but ceased these medications as a result of her pregnancy with a second child who was born in mid-2020.
· She described her psychological health as worsening in the weeks prior to her swearing her affidavit. She proposes to continue seeing her psychiatrist once Covid-19 restrictions ease.
· She describes her physical problems as mainly impacting her neck. She has sought some chiropractic treatment from a family member. She describes restrictions of movement in her neck.
· She also suffers from pain in both knees and sternum pain.
· The pain in her thoracic and lumbar areas of the spine has improved and she has hip pain intermittently.
11Ms Hackett’s first affidavit described in some detail the psychological difficulties from which she was suffering. She referred to experiencing panic attacks on average twice weekly. She described car travel, particularly as a passenger, as providing a trigger for these events, but also referred to the attacks sometimes occurring at night-time when she would wake up panicking.
12She described moving house to be close to her parents so that her mother can assist with pick-ups and drop-offs of her daughter. She avoids car travel as much as she can, but also describes getting panicky on occasions when driving. She states in her affidavit:
“I will pull over the vehicle and hop out to calm down and to ensure I’m driving safely with my children.”[5]
[5]Exhibit B, p 12 at [49]
13She also made reference to hypervigilance, flashbacks and nightmares and difficulties sleeping.
14Ms Hackett referred in her first affidavit to a restriction on activities such as running and household cleaning, which she described as being impacted as a result of her physical injuries. She still goes camping but tends to stay in caravan parks.
15She also describes difficulties with her marital relationship and social activities which she describes as being impacted by her anxieties. Her relationship with her daughter is also described as being strained. The affidavit describes various physical activities in which Ms Hackett is unable to participate.
16Ms Hackett referred to ceasing her employment with M.J. Bale following the transport accident. She has now returned to doing administrative work at home on a casual basis for her brother-in-law’s plumbing business. She had also given birth to a second daughter during 2020. Ms Hackett’s affidavit sets out her difficulty with employment:
“I couldn’t cope with 10 hours per week and couldn’t concentrate properly because of the sedatives I was taking. I dropped down to 3 hours per week which is what I was doing when the baby was born.”[6]
[6]Exhibit B, p 14 at [65]
17In her second affidavit sworn on 6 April 2021 Ms Hackett deposed to being a little worse than she had described in her earlier affidavit.[7] She went on to describe the physical treatment she had received most recently from a chiropractor and previously from her sister, relating to both her neck and knee conditions.
[7]Exhibit B, p 220 [1]
18Her more recent affidavit noted that she had ceased taking medication for her psychiatric injuries when she became pregnant with her youngest child. She was still breastfeeding at the time of that second affidavit, but deposed to consulting her psychiatrist to obtain a further prescription. The affidavit noted difficulties she had experienced in the past with different medications.
19Ms Hackett described her then current employment and deposed to potential restrictions on her working hours resulting from the physical injuries. She stated in relation to her psychiatric condition:
“It is largely my psychiatric issues that prevent me from working more than the hours I currently work.”[8]
[8]Exhibit B, p 223 [35]
20Ms Hackett gave some brief oral evidence concerning her personal life and its impact on her employment prior to the transport accident. She described the breakdown of her previous marriage during 2015 and 2016 at which time she was employed on a full-time basis managing multiple outlets for M.J. Bale.
21Ms Hackett made reference to her then four year old daughter suffering great separation anxiety, which in turn led to other issues such as sleep difficulties and problems with childcare arrangements. These issues resulted in difficulties with her work duties, leading to her discussing a reduction of her hours with her employer. She did not believe she had actually signed such a contract at the time of the transport accident. She stated that she loved her position and looked forward to going to work every day.[9]
[9]Transcript (“T”) 16, Line (“L”) 13 to T 18, L 24
22In cross-examination Ms Hackett gave evidence of the following matters which were relevant to the determination of this application.
· Ms Hackett agreed that she had not made mention of reducing her hours following the breakdown of her marriage and difficulties with her daughter prior to the transport accident. She stated that she believed this would be for a short time and she had not given up the position.
· Ms Hackett agreed that she had commenced work with M.J. Bale on 9 December 2015 and the position was changed to part-time on 6 September 2016. She disagreed with the proposition that the reduction in hours was due to her having extended absences for an unknown illness. She stated that the reduction in hours was due to her taking carer’s leave for her daughter.[10]
· Ms Hackett disagreed with the proposition that the issues with her daughter affected her reliability and attendance at work. She agreed that she would sometimes need to leave without much notice, but never left a store unattended:
“… it was always done in a very professional manner.”[11]
· She was unsure about her working hours between September and November 2016, stating that she believed she was working about 25 to 30 hours per week, but could not disagree that records showed her working between 20 and 23 hours in that period.[12]
· In her present role doing administrative work for her husband and brother‑in‑law she was doing about three to five hours, but had attempted 10 hours per week on two occasions, but this was detrimental to her health.[13]
[10]T 24, L 13-28
[11]T 25, L 6-14 & Exhibit A
[12]T 26, L 3-31
[13]T 27, L 27 to T 28, L 5
23When cross-examined in relation to treatment Ms Hackett agreed that she had not been referred to a psychologist until she saw Ashleigh Gilmore on eight occasions between June and August 2018. She stated that the treatment taught her techniques on how to manage panic attacks, anxiety and depression.[14]
[14]T 32, L 3-24
24Ms Hackett agreed that she had attended the psychiatrist, Dr Illesinghe, initially on 4 September 2018 and on three further occasions up until 11 February 2019.[15]
[15]T 33, L 26 to T 34, L 22
25Ms Hackett stated that she had tried four different medications, but was told to cease medication by Dr Illesinghe in February 2019. She was then taking Diazepam prescribed by her general practitioner, but ceased this due to her pregnancy and nursing her infant daughter.[16]
[16]T 35, L 4-22
26She had discussed in-patient psychiatric treatment with Dr Illesinghe due to difficulties with the medication, but she had not actually received such treatment in a hospital.[17]
[17]T 36, L 1-24
27When cross-examined about her physical injuries Ms Hackett described her right knee as preventing her from doing a lot of activities due to pain, but her neck was constant:
“… um, constant discomfort.”[18]
[18]T 37, L 5-10
28She described the neck restrictions as limiting her movements.[19]
[19]T 37, L 25 to T 38, L 2
29She agreed that her general practitioner, Dr Addis, had not referred her either to her sister, who was a chiropractor, or to another chiropractor who took over from her sister. Ms Hackett stated there was no need for a referral to see a chiropractor.[20]
[20]T 38, L 14-25
30Ms Hackett agreed that she had not taken any prescription medication since May 2019. She would take anti-inflammatories and mild pain relief tablets called Nuromol, which could be obtained without a prescription.[21]
[21]T 41, L 19 to T 42, L 18
31Ms Hackett agreed that she would have some pain in her lower back and her hip area, and an area at the top of her shoulders. This was in addition to the neck pain.[22]
[22]T 43, L 1 to T 44, L 6
32Ms Hackett agreed that she had tried to go for a jog on the weekend just prior to the hearing stating:
“… it was quite, quite hard on my knees, so I attempted but stopped.”[23]
[23]T 45, L 1-4
33This had occurred when she was on a camping holiday in a caravan in New South Wales for the Easter break. The last time she had been camping was about three years before that.[24]
[24]T 45, L 1 to T 47, L 10
34Ms Hackett stated that prior to the transport accident she would generally try to run three to five kilometres. She did not do it every day:
“… some days I’d have enough time to run up the road and back.”[25]
[25]T 47, L 11-26
35Ms Hackett maintained that pain in her knees restricted her ability to do household tasks, but agreed that she had not sought medical investigations for the problem:
“I have, um, learnt to manage it other ways. I move in different ways to minimise the discomfort and pain, um, and I avoid things that I know are going to exacerbate it.”[26]
[26]T 48, L 7 to T 49, L 5
36Ms Hackett maintained that she was continuing to learn strategies to deal with her psychological issues, but did not agree that her psychological state had returned to normal.[27]
[27]T 50, L 2-21
37In relation to her employment history Ms Hackett agreed that she had been working in an administrative role in her ex-husband’s business following the birth of her first child in February 2012. She continued this until moving to Melbourne at the end of 2014. She then obtained a job working part-time in retail sales.[28]
[28]T 52, L 4-31
38In the year ending 30 June 2016 she agreed she had received some DHS payment, $29,000 from M.J. Bale and $17,000 from other prior employment.[29]
[29]T 54, L 9-19
39Ms Hackett maintained that since returning to work following the transport accident in May 2019 she took a maternity break and then worked generally three hours per week and worked 10 hours per week on a couple of occasions.[30] She also stated that her personal relationship with her husband had been greatly affected despite the fact that she had conceived and given birth to another child.[31]
[30]T 55, L 1-5
[31]T 55, L 10-23
40She described having myotherapy treatment since November 2020. This treatment would usually relieve her neck symptoms for a few days and then it would tighten up again requiring further treatment.[32]
[32]T 56, L 1 to T 57, L 15
41Ms Hackett had last seen her general practitioner, Dr Addis, some months ago. He was not providing any active physical treatment, nor any prescription medication. Her most recent treatment was from Dr Pietrolungo, who she had seen on four occasions since November.[33]
[33]T 57, L 26 to T 58, L 27
42Ms Hackett did not dispute a clinical note from 3 June 2019 noting:
“She returned to the workforce. She did this all on her own, trial period, administration bookkeeping, eight hours a week. She’s finding it good but finding it exhausting.”[34]
[34]T 59, L 13 to T 60, L 12
43Ms Hackett disagreed with the suggestion that she was capable of working full‑time. She maintained that she was suffering PTSD on a daily basis and she did not believe the condition was in remission.[35]
[35]T 60, L 18-24
44When re-examined the following evidence was noted:
· Ms Hackett believed that the psychiatric condition was the primary reason why she could not work full-time:
“… there’s some nights where I wake up multiple times from a panic attack, nightmares, reliving what - what happened, and the next day I am barely able to get out of bed, let alone try and care for my children, and, you know, maintaining the home and do the basic, bare essentials of getting through my day, … I have to rely on my mum and dad who live around the corner, and so … it absolutely kills me that I can’t be doing more, it really does.”[36]
· She maintained that the business would support work of up to 20 hours plus and she was only able to do three hours per week:
“… our goal for me to be able to build up to that, and I just haven’t been able to.”[37]
· When she returned to work in 2019 she intended to do 10 hours per week, but was apparently doing eight:
“(The work) kind of just diminished down to a – down to a three hour shift, and I was doing an hour and a half here and an hour and a half there and I had the flexibility to do that, which was good. It gave me a bit of purpose again.”[38]
· Ms Hackett described her chiropractic treatment noting that she had commenced this again in November of December 2020 and had seen this practitioner approximately six times. She had previously received some treatment from her sister in mid to late 2018. Her sister qualified at the end of 2018. She was mainly attending her sister due to the cost.[39]
· If she went for a period of time without chiropractic treatment she would get headaches more frequently for which she would take Nuromol.
· Ms Hackett maintained that she had engaged in running for up to an hour prior to the transport accident, depending on the time that she had available. She described it as helping her to get a kick start on her day.[40]
[36]T 61, L 26 to T 62, L 5
[37]T 62, L 15-20
[38]T 63, L 9-13
[39]T 63, L 14 to T 64, L 12
[40]T 66, L 17 to T 67, L 2
45Ms Hackett was taken to a document setting out her earnings with M.J. Bale from 12 December 2015 to 26 November 2016. This was tendered in evidence.[41]
[41]Exhibit A
46Ms Hackett was taken to medical records in relation to the dates she had received treatment from a psychologist. She agreed that she had been referred to Jane Addis in approximately February 2017.[42]
[42]T 75, L 8 to T 77, L 29
47Ms Hackett agreed that she had been referred to a psychiatrist by Dr Addis in September 2017, but she did not attend mainly due to cost and a lengthy wait for an appointment.[43]
[43]T 78, L 12 to T 79, L 8
48Ms Hackett began seeing a psychologist from Queensland on line in mid-2018. She began these appointments as she believed she was not progressing adequately with Jane Addis.[44]
[44]T 79, L 30 to T 80, L 28
49Finally in re-examination Ms Hackett stated that administrative work using computer screens involving looking down would be very tiring on her neck, and she would need to move and stretch it and over prolonged periods she would suffer more discomfort and pain.[45]
[45]T 82, L 21-31
50In addition to her own affidavits, Ms Hackett relied upon affidavits sworn by her husband, Daniel Hackett, on 18 January 2021 and her mother, Robyn Murphy, sworn 29 January 2021.[46] Neither deponent was required for cross-examination. The affidavit sworn by Ms Hackett’s husband, Daniel, broadly supports her claims of difficulties with her knee and her spine in day-to-day activities. He also makes reference in some detail to her anxiety associated with car travel.
“When Sarah has a panic attack she kind of locks up or closes off. She can’t talk, speak and has to sit down or will curl up in a ball and cry.
If she has a panic attack when driving she will pull the car over for safety reasons.”[47]
[46]Exhibit B, pp 16-24
[47]Exhibit B, p 18 [25] to [26]
51Mr Hackett’s affidavit also makes reference to difficulties with intimacy and Ms Hackett’s limitations in relation to performing work.
“Sarah was unable to return to work after the accident. She now does administrative type work for my brother and I such as invoicing, emailing and accounts. She works a few hours per week, from home.
She is still a young person and she is an intelligent person. I am worried she is too young to give up on her career.”[48]
[48]Exhibit B, p 19 [31] to [32]
52The affidavit sworn by Ms Hackett’s mother, Robyn, is also supportive of the application. She deposes to seeing her daughter regularly, about three to four times per week. They live nearby and were able to meet during the Covid-19 lockdowns. The affidavit describes observations of physical difficulties which are said to relate to the neck, knees and hips. The affidavit further describes Ms Hackett’s mother as witnessing panic attacks and making observations of apparent distress experienced by Ms Hackett when driving. The affidavit also describes significant assistance with domestic activities and noting changes with Ms Hackett’s employment.
53In addition to these two further affidavits additional material, including the Victoria Police collision report was tendered into evidence.[49] Ultimately the circumstances of the transport accident were not in dispute.
[49]Exhibit B, pp 37-40
Medical reports relied upon by the plaintiff
54The hospital documents relevant to Ms Hackett’s initial treatment were tendered in evidence.[50] These confirmed Ms Hackett’s initial complaints concerning general spinal pain.
[50]Exhibit B, pp 49-55
55A record from the Knox Private Hospital and a short report from Associate Professor Cliff Choong, thoracic surgeon, dated 13 December 2016 noted Ms Hackett’s complaints of chest pain and the finding of an undisplaced fracture of the sternum on CT scan taken in December 2016.
56There were three reports from Ms Hackett’s general practitioner, Dr John Addis, dated 13 February 2019, 5 June 2019 and 28 May 2020.[51] Additionally, extracts from Dr Addis’ clinical notes were tendered in evidence.[52]
[51]Exhibit B, pp 67-73
[52]Exhibit B, pp 198-215
57In his first report Dr Addis noted Ms Hackett as suffering from “cervical sprain, seatbelt trauma, sternal fracture, panic disorder, bilateral knee injuries.”[53] It was clear from the substance of his report that the panic disorder was causing some concern:
“Prognosis for Sarah’s panic disorder is a little more uncertain, but is likely to improve substantially long term.”[54]
[53]Exhibit B, p 67
[54]Exhibit B, p 68
58At the time of his most recent report in May 2020 he again noted:
“Panic disorder: ongoing issues affecting daily life, unable and unwilling to take diazepam during pregnancy and breast feeding. Using behavioural techniques.”[55]
[55]Exhibit B, p 72
59He described her prognosis as follows:
“Chest wall pains are likely to gradually reduce over a protracted period of time. Psychological issues likely to require ongoing regular counselling.”[56]
[56]Exhibit B, p 73
60Ms Hackett was referred by Dr Addis to the psychiatrist, Dr Illesinghe, on 15 July 2018. Two reports from Dr Illesinghe dated 14 June 2019 and 2 June 2020 were tendered in evidence.[57] Ms Hackett was seen by Dr Illesinghe on four occasions between 4 September 2018 and 11 February 2019. There were to be further appointments scheduled for April and July 2019, but these were subsequently cancelled.
[57]Exhibit B, pp 74-78
61Dr Illesinghe diagnosed Ms Hackett’s condition as warranting a diagnosis of post traumatic stress disorder with comorbid major depressive disorder.[58] At the time of the first report dated 14 June 2019 Dr Illesinghe did not believe Ms Hackett had any capacity for either full or part-time employment. It was thought this may improve to justify a cautious prognosis “that she may be able to engage in part‑time work in two years’ time.” The condition of post traumatic stress disorder was described as being generally a relapsing-remitting one. The opinion expressed by Dr Illesinghe was that there would be some lifelong degree of impairment.
[58]Exhibit B, p 75
62The final report from any treating practitioner was from Ms Ashley Gilmour, psychologist, dated 11 July 2020.[59] Ms Hackett was referred to Ms Gilmour initially on 19 June 2018. Ms Gilmour notes that the referral was in relation to grief and depression following the death of Ms Hackett’s grandmother and also for significant stress and anxiety following the transport accident. The report notes seven tele-health consultations up until 15 August 2018. Further arrangements were put in place for a tentative appointment in February 2019, although this did not occur.
[59]Exhibit B, pp 79-83
63Ms Gilmour’s report diagnosed post traumatic stress disorder, major depressive disorder and generalised anxiety disorder. She noted:
“The PTSD is directly caused by the MVA; had the MVA not occurred, there would be nil PTSD at the time it developed. The MDD was already somewhat present prior to the MVA, however it had been further exacerbated significantly by the MVA. The GAD is the result of the MVA.”[60]
[60]Exhibit B, p 81
64Ms Gilmour expressed the opinion that Ms Hackett’s mental health would have likely substantially improved if she had continued with the psychological treatment, although this had not occurred. The prognosis into the long‑term was somewhat guarded with Ms Gilmour stating:
“The longer she goes on without on-going treatment, the worse her prognosis for moderate to good recovery to the point where she can function well and feel well again will likely become.”[61]
[61]Exhibit B, p 83
65Dr David Weissman, consultant psychiatrist, provided two medico-legal opinions dated 1 November 2018[62] and a supplementary opinion dated 27 July 2020 following a FaceTime psychiatric interview.[63] At the time of preparing his first report Dr Weissman diagnosed Ms Hackett as suffering from:
“1. Chronic Post-Traumatic Stress Disorder – moderate intensity or severity
2.Panic Disorder currently/recently in remission
3.Chronic Major Depressive Disorder with Anxious Distress – moderate intensity or severity relevant to the subject transport accident.”[64]
[62]Exhibit B, pp 151-168
[63]Exhibit B, pp 84-101
[64]Exhibit B, p 162
66He did not regard her psychiatric symptoms conditions or impairment to have fully stabilised at that time. He did at that stage describe her condition as amounting to:
“… close to a moderately severe group of accident-related psychiatric conditions and mental injuries.”[65]
[65]Exhibit B, p 165
67At the time of his second interview with Ms Hackett on 27 July 2020 he described her mental state examination as being “at least mildly improved compared with this (the 2018 examination).”[66] Following the second examination Dr Weissman diagnosed Ms Hackett as suffering from the following:
“1.chronic PTSD – mild to moderate;
2.chronic Major Depressive Disorder with anxious distress – mild to moderate;
3.Panic Disorder in remission.”[67]
[66]Exhibit B, p 93
[67]Exhibit B, p 97
68In terms of prognosis Dr Weissman described at least a mild overall improvement in Ms Hackett’s psychiatric state between the two examinations. He described her as suffering from:
“… at least a mild to moderate group of accident-related psychiatric conditions and mental injuries.
Her psychiatric prognosis for the future remains a little uncertain and guarded.”[68]
[68]Exhibit B, p 100
69Ms Hackett also relied upon a medico legal report from Dr David Fitzgerald, occupational physician, dated 24 September 2020.[69] He conducted a video conferencing assessment of Ms Hackett on the date of his report and provided a detailed and complex opinion. Dr Fitzgerald took a history of Ms Hackett suffering bilateral knee pain and constant neck discomfort, together with occasions headaches/migraines.[70] He was unable to conduct any physical examination during the tele-conference, but noted that Ms Hackett appeared to sit reasonably comfortably for the duration of the 40 minute interview.[71]
[69]Exhibit B, pp 108-121
[70]Exhibit B, p 110
[71]Exhibit B, p 112
70Dr Fitzgerald described Ms Hackett as having had injuries to the neck, thoracolumbar spine, sternum and both knees in addition to psychiatric injuries. He believed that these injuries were all related to the transport accident and remained symptomatic so as to moderately impair her in various activities. He recommended that she would benefit from further treatment, both for the physical and psychological conditions and regarded her prognosis as reasonable should she re-engage with the recommended treatment. Absent such treatment her prognosis was described as poor.[72]
[72]Exhibit B, p 115
71Ms Hackett was also examined over a videolink by Dr Richard Sullivan, pain specialist, on 21 August 2020. His report of the same date was tendered into evidence.[73] Dr Sullivan noted complaints by Ms Hackett concerning her posterior cervical region, both knees with the right more problematic than the left, and chest pain.[74] He noted various functional restrictions but his examination findings seemed to be limited to observations of spinal movements. His summary describes the plaintiff as suffering:
“ a likely aggravation of cervical spondylosis and lumbar spondylosis consequent to motor vehicle accident in 2016. She has developed chronic pain as a consequence of these injuries that adversely affect her functional capacity and her work capacity.”[75]
[73]Exhibit B, pp 102-107
[74]Exhibit B, p 103
[75]Exhibit B, p 105
72As with Dr Fitzgerald, he recommended further investigations in relation to both the spinal and knee injuries.[76]
[76]Exhibit B, p 105
73Mr David Slattery, orthopaedic surgeon, provided a report to Ms Hackett’s solicitors on 1 October 2020 following a tele-medicine interview on 15 September 2020.[77] Mr Slattery noted Ms Hackett’s complaints as impacting both knees, the right worse than the left, pain in the cervical spine, the thoracolumbar spine and both hips, once again the right being worse than the left. He diagnosed her injuries as follows:
“1. C6 disc prolapse;
2. Sternal fracture;
3. Likely musculogenic back pain; and
4. Bilateral hip and bilateral knee pain, for further evaluation.”[78]
[77]Exhibit B, pp 122-143
[78]Exhibit B, p 129
74Mr Slattery noted the obvious restrictions of conducting an examination via tele‑medicine and recommended further examination, including further imaging to fully assess the extent of her injuries. He described her prognosis as guarded, stating:
“She is now approximately four years after her injury, and experiences ongoing symptoms of her neck, back, knees and hips. It is likely she will experience some degree of pain for the foreseeable future. It is difficult to prognosticate upon the condition of her hips or knees definitively as I have not been provided with any up to date medical imaging to review.
There is a risk of deterioration in the future, and deterioration of the condition. Should this occur, it is likely to impact Ms Murphy’s capacity for employment, social, domestic and recreational activities.”[79]
[79]Exhibit B, p 129
75For completeness I note a report obtained from Dr David Kennedy commissioned jointly by the Transport Accident Commission and the plaintiff’s solicitors dated 15 October 2018 was also tendered as part of the plaintiff’s case.[80] Dr Kennedy conducted the examination of Ms Hackett on 25 September 2018 and noted at that time that she had sustained injuries to her chest, knees, neck, lower back and hips.[81] Dr Kennedy also noted that Ms Hackett complained of being:
“Very depressed, stressed and anxious and this is the most significant problem following the accident.”[82]
[80]Exhibit B, pp 144-150
[81]Exhibit B, p 146
[82]Exhibit B, p 147
76He described the physical injuries as follows:
“The injuries sustained involved myofascial injuries to the cervicothoracic spine and lumbar sacral spine, as well as injuries to the anterior chest wall and apparent fracture of the sternum, as well as clinical signs of injuries to the sternoclavicular joints bilaterally. Ms Murphy also sustained direct trauma to the anterior aspects of both knee joints as a consequence of the transport accident.”[83]
[83]Exhibit B, p 148
77Dr Kennedy also made reference to what he described as a significant level of depression and anxiety and regarded both the physical and psychological injuries as consistent with the description and nature of the transport accident.
Medical reports relied upon by the defendant
78The defendant tendered into evidence a report from Mr Gary Speck, orthopaedic surgeon, dated 9 March 2021[84] and a report from Associate Professor Peter Doherty, consultant psychiatrist, dated 20 March 2021.[85]
[84]Exhibit B, pp 169-184
[85]Exhibit B pp 185-197
79Ms Hackett reported to Mr Speck that she was still having symptoms affecting her chest, neck, right knee and right hip. It is clear that Mr Speck had the benefit of conducting a full examination and his findings are set out in detail in his report. He described the pains as fluctuating in severity and noted that Ms Hackett was at that time having no current regular therapy, nor had she been involved in various types of rehabilitation. He concluded that her current presentation was that of chronic pain syndrome with no ongoing structural cause related to the transport accident.[86] Mr Speck also expressed an opinion that her current presentation and level of restrictions were related to avoidance behaviour and psychological features.[87]
[86]Exhibit B, p 180
[87]Exhibit B, p 182
80The final report relied upon by the defendant was from Associate Professor Peter Doherty, consultant psychiatrist. He had conducted an online interview with Ms Hackett on 13 January 2021. His detailed report dated 20 March 2021 was tendered in evidence.[88] Associate Professor Doherty recorded a detailed history noting the physical complaints and recording Ms Hackett’s comment that her lack of concentration was holding her back in terms of increasing her work hours.[89] He also recorded that she was taking no psychiatric medication since the start of her recent pregnancy, but had been taking Diazepam at a maximum four times a day prior to falling pregnant.[90] He recorded difficulties with sleep and what he described as “persistent intense dreams of similar events interfering with her sleeping pattern.” He noted Ms Hackett’s complaints that she would experience nightmares at least once a week.[91]
[88]Exhibit B, pp 185-197
[89]Exhibit B, p 188
[90]Exhibit B, p 189
[91]Exhibit B, p 190
81Associate Professor Doherty’s diagnosis included post traumatic stress disorder, which he described as now improved significantly but not resolved. He also noted that she had been diagnosed by her general practitioner with a panic disorder and agreed that such a diagnosis was warranted. He did not believe that her current symptoms warranted a diagnosis of major depressive disorder.[92] He regarded Ms Hackett’s psychiatric condition as “moving in the right direction and making progress.” Nevertheless he expressed the view that her prognosis was reasonably favourable but should be considered guarded.[93]
[92]Exhibit B, p 192
[93]Exhibit B, p 193
82Associate Professor Doherty did not believe any psychiatric treatment was indicated at the time of his examination and described the two diagnosed conditions of remitted PTSD and panic disorder as being of mild severity.[94]
[94]Exhibit B, p 195
Analysis
83Mr Middleton QC submitted on behalf of the defendant that neither the mental or behavioural disturbance or disorder, nor the organic injuries relied upon by Ms Hackett justified a grant of leave. In relation to the non-organic injuries he directed me to the longstanding authority in Mobilio v Balliotis[95] and the emphasis placed by the Court of Appeal in that case on the need for an applicant to show that the consequences were severe rather than serious. Mr Middleton QC also referred to Turner v Love,[96] Shock Records v Jones[97] and A.G. Staff Pty Ltd v Filipowicz.[98]
[95]Mobilio v Balliotis & Ors [1998] 3 VR 833
[96](1995) 21 MVR 314
[97]Shock Records Pty Ltd & Anor v Jones [2006] VSCA 180
[98][2017] VSCA 60; (2012) 24 VR 309
84In short Mr Middleton QC emphasised the lack of treatment for the non-organic injuries, the existence of alternative causes for these conditions, including the marital separation pre-dating the transport accident and the reaction of Ms Hackett to her grandmother’s death in 2018.
85Mr Middleton QC also made reference to the medical opinions noting that Dr Weissman’s view between his 2018 and 2020 opinions was that Ms Hackett’s condition had improved. He submitted that this was in keeping with the opinion provided by Associate Professor Doherty in his recent report. On that basis the condition impacting Ms Hackett could not fairly be described as anything more than mild to moderate and would not justify a finding of severe long-term consequences so as to justify a grant of leave.
86Mr Middleton QC also submitted that there was no support for the proposition that the ongoing pain claimed by Ms Hackett had produced the psychological response so as to justify an application of the principles set out in Richards v Wylie.[99]
[99][2000] 1 VR 79
87In relation to the physical injuries Mr Middleton QC was critical of the varying diagnoses of what were clearly multiple injuries affecting Ms Hackett’s neck, back, chest, hips and knees. Mr Middleton QC submitted that it was for the plaintiff to disentangle the consequences said to flow from the body functions relied upon in her application. The absence of cogent medical opinion militated strongly against a finding by the court of a particular organic injury which was productive of the consequences said to be serious.
88Mr Winneke QC submitted that Ms Hackett had been an impressive and reliable witness. He referred to her principal reliance upon the psychological and psychiatric injuries as a barrier to her return to work and enjoyment of life. Notwithstanding the most recent medical opinions from Dr Weissman and Associate Professor Doherty, the court should still be satisfied that Ms Hackett’s symptom complex warranted diagnoses of both post traumatic stress disorder and panic attacks in respect of which her prognosis was described as guarded.
89Mr Winneke QC referred to the decision in Katanas[100] both in the High Court and in the Court of Appeal. That decision provided the High Court’s endorsement of the proposition that a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment:
“… the mere fact that a person has attended many doctors and undergone much treatment would not tell in favour of a disorder being severe unless the symptoms the consequences of the disorder properly called for that level of treatment.”[101]
[100]Transport Accident Commission v Katanas [2017] HCA 32
[101]Ibid at [23]
90Mr Winneke QC also referred to decisions of judges in this court being Middlecoat v VWA[102] and Serbec v VWA.[103]
[102][2019] VCC 369 (Judge Ginnane)
[103][2020] VCC 1372 (Judge Misso)
91Mr Winneke QC emphasised the credibility of the plaintiff’s evidence as central to a determination of the application relating to the non-organic injuries suffered by Ms Hackett. He additionally made relatively brief submissions concerning both the injury to her right knee and the injury to her neck. He accepted that the diagnosis relating to the knee injury was not abundantly clear given the lack of diagnostic investigations. Nevertheless he submitted that such an injury on the plaintiff’s evidence could and did in fact produce consequences that were serious to the plaintiff.
92Mr Winneke QC also submitted that the injury to the neck should on balance be described as an aggravation to pre-existing degenerative changes which had been described as a prolapse by Mr Slattery.
93Accepting the plaintiff’s evidence as to the restrictions the neck injury caused, including pain, and the limitations of movement, such consequences could also fairly be described as serious for Ms Hackett.
94I am satisfied that Ms Hackett presented as a credible and impressive witness. I am also satisfied that the transport accident circumstances are truly capable of being described as extremely frightening, noting the circumstances of the collision itself, the remote location and the immediate physical pain suffered by Ms Hackett leading to her admission to the Latrobe Hospital.
95At that time Ms Hackett was 31 years of age and had recently commenced a new relationship with her now husband.
96It is clear from the clinical notes from her general practitioner, Dr John Addis, that a psychological referral and a detailed notation of psychological symptoms were recorded in mid-January 2017, some two months following the collision.[104]
[104]Exhibit B, p 205 – Clinical notes January 19, 2017
97I am satisfied that Ms Hackett did seek treatment for her psychological condition, albeit with limited success. I note in particular the comments from the treating psychiatrist, Dr Illesinghe, in late 2018 concerning the difficulties Ms Hackett was experiencing with her medication regime.
98Notwithstanding the issue concerning treatment raised by Mr Middleton QC in final address, I am satisfied that an assessment of the consequences of a mental and behavioural disturbance or disorder must be made on the whole of the evidence and the frequency and modalities of treatment are but one factor to be considered.[105]
[105]Transport Accident Commission v Katanas [2017] HCA 32 at [25]
99I am satisfied that the non-organic injuries are the principle impediment to Ms Hackett returning to full-time employment. The very limited administrative employment she is now capable of undertaking is a very significant restriction on her earning capacity. I accept the prognosis for her psychological injuries is fairly described as guarded, both by Dr Weissman and Associate Professor Doherty.
100I note that her capacity for unrestricted full-time employment was restricted to some extent by her difficulties in caring for her daughter in the months leading up to the transport accident. I do not regard those circumstances as likely to have been of long-term effect. Conversely, her limited ability to perform administrative work for no more than a maximum of 10 hours per week, when contrasted with a pre-injury capacity to work full-time as a multi-site retain manager, must fairly be assessed as representing a very considerable loss to a woman aged 34 years at the date of this hearing. In light of the guarded prognosis for her psychological condition such a loss must be considered as long-term and likely to extend into the foreseeable future.
101The pecuniary loss consequences alone would be a sufficient basis for a finding that the consequences flowing from the non-organic injuries are at least serious.
102When factors such as the interference with her enjoyment of social and recreational activities is impacted by her sleeping difficulties and panic disorder is considered in addition to the pecuniary disadvantage, I am satisfied that the totality of consequences resulting from the psychological conditions resulting from the transport accident can fairly be considered as of a greater magnitude than “serious” to the extent of being fairly described as “severe”. In reaching such a conclusion I am mindful of the comments made, especially by Brooking JA in Mobilio v Balliotis.[106]
[106][1988] 3 VR 833 at 846
103I am therefore satisfied that leave should be granted to Ms Hackett to claim damages.
104Given the decision I have reached in relation to Ms Hackett’s claim based upon her psychological consequences flowing from the transport accident, it is unnecessary to further consider her application for leave based upon the organic injuries impacting her right knee and her neck.
Conclusion
105I grant leave to the plaintiff to claim damages in accordance with s 93(4)(d) of the Act in respect of injuries arising out of the transport accident in which she was involved on 19 November 2016.
106I further propose to order the defendant to pay the plaintiff’s costs of the proceeding, to be assessed on a standard basis by the Costs Court in default of agreement.
107I reserve liberty to the parties to apply in respect of any further certifications sought in respect of costs.
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