Obeid v Transport Accident Commission
[2023] VCC 636
•28 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-02520
| HANNAN OBEID | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 February 2022 | |
DATE OF JUDGMENT: | 28 April 2023 | |
CASE MAY BE CITED AS: | Obeid v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 636 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application under the Transport Accident Act 1986 – plaintiff relying on paragraph (c) of the definition of “serious injury” – nature of condition – reliance on “pain and suffering” consequences and “pecuniary disadvantage” consequences
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment: Judgment for the plaintiff. Leave for the plaintiff to bring common law proceedings to recover damages for injury arising out of a transport accident occurring on 14 September 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms F Blair | Zaparas Lawyers |
| For the Defendant | Mr S Smith KC with Ms J Clark | HWL Ebsworth Lawyers |
HIS HONOUR:
1By way of Originating Motion, Hannan Obeid (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for a psychiatric injury (“the injury”) arising out of a transport accident which occurred on 14 September 2018 (“the transport accident”).
2The plaintiff was the only witness to give evidence and be cross-examined. At the end of the oral evidence, counsel for the plaintiff tendered the Plaintiff’s Court Book (as amended) (“PCB”) – exhibit 1 – and also a DSM-V document describing somatic symptoms and related disorders, with another document describing the condition of factitious disorder – exhibit 2.
3Counsel for the defendant also tendered the Defendant’s Court Book (“DCB”) – exhibit A – and also some surveillance footage undertaken on 9 January 2021 – exhibit B.
The relevant legal principles
4The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
5By way of her Originating Motion, the plaintiff sought to rely on paragraph (c) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“‘serious injury’ means:
(a) …
(b) …
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) … .”
6When the Court queried Senior Counsel for the plaintiff as to what was the nature of her injury, the following was stated:
“The application is made - it’s a (c) application. The diagnoses in the - I think it’s pretty unanimous that there’s very little organic, if any, organic explanation for the plaintiff’s complaints. The diagnoses that have been variously suggested are functional neurological disorder, fibromyalgia, PTSD. There’s also been identified varying - either a major depressive disorder or an adjustment disorder and the alternative - another diagnosis that’s been posited is a factitious disorder.”
HIS HONOUR:
“What’s that mean?”
MR HARRISON:
“It means if the plaintiff or the patient complaining of the various things is deceiving people by appearing to be sick but the word of ‘deceiving’ doesn’t carry with it the connotation of deliberate; it may either be deliberate or quite genuine and so that may be an issue that falls for Your Honour to determine.[2] As is so often the case in applications of this type, there is surveillance, which I’m sure Your Honour will see, which we will see, it’s been exchanged.”[3]
[2]Refer to exhibit 2 which in part describes the condition of factitious disorder
[3]Transcript (“T”) 2, Lines (“L”) 10-28
7In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) that “the injury” suffered by her was a result of the transport accident;
(b) the requirements of the test set out in the seminal decision of Humphries and Anor v Poljak,[4] wherein the majority of the then Full Court of Victoria stated:
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para. (a) and the latter under para. (c ). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para. (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para. (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s. ( 4)(d) when reliance is placed upon sub-s. ( 17)(a)[5] may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[6]
[4][1992] 2 VR 129
[5]The Court, at this stage, was referring to paragraph (a) of “serious injury” – that is to say, an organic injury
[6]Humphries and Anor v Poljak (op cit) at paragraphs [40]-[41]
8“Serious injury”, as defined in paragraph (c), requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious”, as required in sub-paragraph (a) of an organic injury said to be “serious”. In Mobilio v Balliotis,[7] the then Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking J stated:
“… Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’ … .”[8]
[7][1998] 3 VR 833
[8]See Mobilio v Balliotis (op cit) at 846; see also Papamanos v Commonwealth Bank of Australia [2014] VSCA 167
9The Court must give reasons disclosing the pathway of reasoning in dealing with the evidence and the issues raised by the application.[9]
[9]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The issues
10When queried by the Court as to what were the issues, I was informed by Senior Counsel for the defendant that, as stated by Senior Counsel for the plaintiff, there were a variety of reports postulating various diagnoses, but, generally, it was suggested that a factitious disorder was “firming”. In particular, Senior Counsel for the defendant, advised that credit issues were going to be an issue and, furthermore, much will depend on the presentation of the plaintiff.
The evidence of the Plaintiff
11The plaintiff relies on the following affidavits sworn by her – on 20 April 2020 (“the first affidavit”);[10] 17 September 2021 (“the second affidavit”),[11] and 3 February 2022 (“the third affidavit”).[12]
[10]See pages 17-25 PCB
[11]See pages 18-26 PCB
[12]See pages 30-32 PCB
12The plaintiff gave evidence that she had had an opportunity to re‑read her affidavits, and they were “accurate”, and she was happy with their contents.[13]
[13]See T28, L4-7
13The plaintiff did point out in paragraph 23 of her first affidavit that the psychologist to whom she refers is Dr Chan (not Cham) Kam-Yin Helen. Furthermore, at paragraph 29(c) of the same affidavit, the reference should be to Dr Chan (not Kim).
14The plaintiff also confirmed that Dr Chan – the psychologist – retired in about July 2021, at which time the plaintiff was referred to another psychologist who the plaintiff saw a couple of times. The plaintiff gave evidence that the referral did not continue, because the new psychologist wanted an extra payment that the defendant would not cover, and it was necessary to find another psychologist who would “bulk bill”, and that had been achieved recently. The name of that psychologist was Dr Mary Samuhel, and she commenced consulting with the plaintiff on or about 8 February 2022, with her fees being funded through a mental health plan.
15By way of her first affidavit, the plaintiff gives the following salient evidence:
· She was born in December 1996 and is currently twenty-seven years old, living with her parents and sister at home.
· On 14 September 2018, she was injured in a transport accident. At that time, she was a “seat-belted” driver of a vehicle involved in a “concertina” collision with four other vehicles. She was driving on the South Gippsland Highway near Hallam when she was “rear-ended”, pushing her vehicle into the vehicle in front. Her vehicle was badly damaged and written off after the accident.
· Prior to the transport accident, her health was excellent. She recalls having a couple of panic attacks in September 2016, which she describes as minor, and although seeing her general practitioner, she needed no ongoing treatment or medication. In January 2018, she had minor neck pain and that resolved without any treatment or medication.
· On leaving school, she completed a Diploma of Childhood Education, and at the time of the transport accident, she was working as a childhood educator and had been employed in that role for about two years.
· After the transport accident, Emergency Services were called to the scene of the accident and the plaintiff was checked by paramedics, who advised her to contact her general practitioner. She attended the Monash Medical Centre the next day with neck pain, and was examined, but no radiology was taken, and she was discharged.
· She consulted the general practitioner, Dr Rachael Abdelmalak, on 17 September 2018 and again the following day when she was suffering neck, back and shoulder pain.
· About three months after the transport accident, she consulted Dr David Abdelmalak at the same clinic in relation to her transport accident injuries. She was referred by her general practitioner for radiological scans and given a medical certificate to be off work, and after a few days off work, she went back to her normal employment. However, after commencing work, she continued to have difficulties and was frequently “blacking out”, and on 11 October 2018, she had another blackout, fell and hurt her ankle, causing her to attend the Box Hill Hospital.
· After that, she was referred to a number of specialists:
§she commenced physiotherapy with Mr Bingxuan He in about October 2018;
§she was referred to the psychologist, Dr Chan Kam-Yin Helen, in October 2018;
§she was referred to the neurosurgeon, Mr Chris Xenos, in about November 2018, and around that time she had MRI scans of her back and neck, together with an MRI scan of her brain.
· As she was not improving, she was referred to see Dr Slava Poel at the Metro Pain Clinic in late 2018, and then was referred to a pain management program which she undertook at Advance Healthcare in Dandenong under the care of Dr Ong, a rehabilitation physician.
· She was further referred to see a neuropsychiatrist, Dr Dougal Phillips, as well as Professor John Olver, at the Epworth Hospital.
· At the time of her first affidavit, her treating practitioners were as follows:
(a)her general practitioner, Dr David Abdelmalak, whom she was seeing about twice every month;
(b)a physiotherapist, whom she was seeing once per week or once per fortnight;
(c)a psychologist, Dr Chan, whom she was seeing once every one to two weeks;
(d)the rehabilitation physician, Dr Ong, whom she was seeing once every six weeks.
· Again, at the time of her first affidavit, she was then being prescribed (by Dr Ong and her general practitioner) the following medication:
(a)amitriptyline;
(b)gabapentin;
(c)duloxetine; and
(d)melatonin, for sleeping.
· The plaintiff lodged a Transport Accident Commission (“TAC”) claim in relation to the transport accident, which was accepted, and she has been paid benefits pursuant to that claim, including impairment benefits.
· The plaintiff states that she has the following consequences from her transport accident:
(a)she has been advised that she suffers from Post-Traumatic Stress Disorder (“PTSD”);
(b)she is unable to sleep and only gets a few hours’ broken sleep per night as she is having nightmares and thinking about the accident. Furthermore, the pain in her body is often worse at night-time;
(c)she has a lot of fear about death and feels like she is going to be attacked all the time;
(d)her heart races a lot of the time;
(e)she often feels emotional;
(f)when she is anxious, it often has the effect of making her laugh so people think she is okay, and she is always trying to put on a brave face;
(g)she has not been able to work since the weeks following the transport accident;
(h)it is an effort even getting up in the morning and she needs help even for the most mundane day-to-day activities like getting ready in the morning;
(i)she feels that she is in a fight with herself and feels worthless and wonders “what is the point of being here, and feels like everything is all my fault”.
· She is engaged to her fiancé but has broken up a few times since the transport accident and moved the wedding date several times. She feels she is not the same person as she was before the transport accident, and she and her fiancé are often in conflict.
· She describes herself as somebody who used to be a very social young person who enjoyed going out clubbing, drinking and having fun, but no longer feels like that and has lost quite a few friends since the transport accident. She feels she cannot do the same types of activities anymore and not everybody can understand that.
· She has anxiety and also gets migraines post-accident, and they are exacerbated by loud noises and bright lights.
· She feels self-conscious about going out and the thought of getting ready to go out exhausts her. Her self-esteem has dropped post the transport accident, causing her to gain weight from eating takeaway foods and being inactive.
· She also is in physical pain most, if not all, of the time, with the pain mostly in her neck and back, but sometimes the pain is all over. It can be tingling, or when it is really bad like a fiery type of pain, with the level of pain varying from day to day.
· She has difficulty lifting her arms properly and at times struggles to fix or tie up her hair.
· Her personal cleanliness and hygiene standards have slipped and she only showers about once per week, as often she does not have the energy, or it does not seem worth it. She is embarrassed about this, and it has affected intimacy with her fiancé. She says to herself that she should shower, but it is not worth it to be in pain and she does not really care what people think about her anymore in terms of hygiene.
· When she is standing, she notices that she starts to develop a burning pain. She tries to get on with things as much as she can, but when the pain gets too much, she takes a break. Her pain is better when she is seated. However, it will increase gradually and when it gets too bad, shifting her position can produce relief.
· During the day, she is mainly seated or lays on a couch or a bed for comfort. She used to like walking with friends for exercise, including hiking, but she no longer can perform strenuous physical activity like that.
· She used to enjoy shopping with her friends and, since the transport accident, has had to work herself up when going to the shops. She worries very much about being judged, and when at the shops, the lights and noise bother her, and walking around for long periods can cause the pain to increase. She occasionally needs to stop and take a break. Despite this, she does find that walking around the shops can also distract her from pain and afterwards she feels a bit better in herself.
· She misses going on long car rides to see new things, whereas she used to drive to Sydney, for instance, or to Phillip Island for a day trip. Since the transport accident, travelling in the car for too long makes her hurt all over.
· She has considered doing some study, but her concentration is terrible and so is her memory, and she forgets things people tell her and what doctors tell her.
· What her life has become frustrates her and she gets angry about it. She yells at her family, who are mostly tolerant, but it makes things very hard with her fiancé.
· She describes that she feels like her personality has changed since the transport accident and her mood is totally different. Whereas she used to be positive, outgoing and happy, now she is often crying, depressed and angry. Furthermore, her general personality has changed in the sense that she is no longer as assertive as she used to be, and she feels very vulnerable. She is often fatigued and tired.
· She is embarrassed as to where she is in her life – whereas her friends are all starting to get their lives together “and I feel as though I am going backwards. I would love to return to work and get my life back on track but I’m not sure how to do this with my physical injuries and my current emotional state.”
· She states that her pain medications do not seem to help and the only thing that gives her any relief is smoking.
· She has been told by doctors that she will always be in pain, and she does not know why she should suffer this pain for the rest of her life.
· “I have a fight going on in my head about whether I would rather be here at all than suffer the pain.”
16By way of her second affidavit, the plaintiff gives the following salient evidence:
· Her psychological condition, pain and limitations have not improved since making her first affidavit and, “if anything”, has got worse throughout 2020 and 2021.
· She continues to suffer widespread pain and a significant psychiatric condition – “feeling pain all over my body but mainly in the right hand side”, and again, mostly in her neck and in her lower back. It feels like a stinging pain or pins and needles.
· Her life continues to be greatly impacted by such injuries and is very confined.
· At the time of her second affidavit, the plaintiff had attended the following doctors:
§she consults a general practitioner, Dr Hur, regularly and she notes that Dr Hur is located in Glen Waverley which is close to her home. Her previous general practitioner, Dr Abdelmalak, is located in Noble Park;
§she consults her psychiatrist, Dr Vadasseri, every two weeks;
§her former psychologist, Dr Chan, in Hallam has retired and prior to her retirement, she was trying hypnosis and NCR with her. Unfortunately, she was not able to complete the NCR due to Coronavirus restrictions as this needs to be performed face to face. The plaintiff has now commenced consulting Ms Joyce Lee every two weeks, and at the moment Ms Lee was providing her with counselling by Telehealth. The plaintiff believes she intends to recommence hypnosis and the NCR when the Coronavirus restrictions permit;
§in or about February 2021, she began consulting a neurologist, Dr Cynthia Chen, and then, in about May 2021, she also consulted a neurologist, Dr Andrew Fox, for a second opinion. She continues to see Dr Chen every two to three months;
§The TAC stopped funding her appointments with Dr Dougal Phillips, the neuropsychologist. She would have liked those consultations to continue as she thought Dr Phillips was helping her.
· Following her pain management program at Advanced Healthcare, she continued to see the rehabilitation physician, Dr Olivia Ong, and physiotherapist, Mr Luke Surkitt, for outpatient treatment. She continued to see Mr Surkitt approximately every one or two weeks until the TAC stopped funding her treatment, and she believes she last saw Mr Surkitt in December 2020.
· She is also awaiting funding approval for a new pain specialist at the Metro Pain Group instead of seeing Dr Ong, who thought it appropriate that her care continue with Metro Pain Group since her psychiatrist, Dr Vandasseri, is based there, and also because they can administer ketamine injections, if required for her treatment.
· She continues to take the following medications which are prescribed for her:
(a)Nupentin (gabapentin), 200 milligrams, three per day for pain;
(b)melatonin, for sleep – 2 milligrams at night;
(c)Cymbalta for anxiety and depression – 120 milligrams per day;
(d)Quetiapine – 25 milligrams, two per night (an antipsychotic); and
(e)Propranolol – 40 milligrams at night for migraines.
· She continues to live with her mother, father and sister. She and her fiancé are still in a relationship. She describes that she and her fiancé are working on the relationship, and they have been to one session of couples therapy, recommended and conducted by her previous psychologist, Dr Hayden, to help her fiancé understand her condition and to help them both to adjust.
· Their social life with lockdowns in Melbourne is still very much diminished and when in lockdown, “I feel a little bit like everyone gets an understanding of what my life was like at the time”.
· When out of lockdown, she observed her friends going out and she was unable to join them. When this occurred, she began to have “suicidal thoughts again”.
· She does go out of the house to go shopping. That is mainly to get out of the house. She does find that the stimuli outside is too much for her at times, especially where there is noise and bright lights.
· She continues to still have difficulties with personal hygiene and continues to shower roughly weekly and then stay in the same clothes for days. She argues about these matters with her fiancé, and he gets angry with her about it, and “I rarely wear makeup”.
· She still finds everything exhausts her, such as going to medical appointments or legal appointments. These make her anxious and exhausted.
· She has developed “checking” behaviours since the transport accident.
· She has recently been told by her neurologist that she should try to limit her driving due to blackouts and seizures. Her father has become very worried about her driving and has taken away her keys, and now she is driving at a minimum.
17I refer to the third affidavit of the plaintiff and note the following salient evidence:
· Her physical and psychological conditions, pain and limitations have not changed since she swore her last affidavit in September 2021. She still suffers widespread pain in her body and a significant psychiatric condition. Her life continues to be greatly impacted by her injuries and is very limited for a person her age.
· She continues to attend the following medical professionals:
§her general practitioner, Dr Hur, once or twice a month;
§her psychiatrist, Dr Vadasseri, about every two to three weeks via Telehealth;
§she has not been able to commence seeing psychologist, Joyce Lee, as deposed to in her earlier affidavit, as TAC funding was not available, and she was not able to bulk bill her sessions in full. She was to commence seeing psychologist, Dr Mary Samuhel, on 8 February 2022 via a mental health care plan from her general practitioner. She notes it took a long time to obtain the appointment due to the available psychologists who were prepared to see people pursuant to mental health care plans without a gap fee;
§she continues to see the neurologist, Dr Cynthia Chen, about every three months;
§she has recently re-attended physiotherapist, Mr Bingxuan He, pursuant to a Medicare plan, and had three sessions in December 2021 which were bulk billed;
§The TAC paid for one final session with Mr Dougal Phillips which was attended on 12 November 2021.
· She continues to take the following medications which are prescribed to her:
(a)Nupentin (gabapentin), 200 milligrams – three per day for pain;
(b)melatonin, for sleep – 2 milligrams at night;
(c)Cymbalta for anxiety and depression – 120 milligrams per day;
(d)Quetiapine – 100 milligrams at night (an antipsychotic); and
(e)Propranolol – 60 milligrams x three per day for migraines.
· She lives with her parents and sister at home, and although she and her fiancé are still in a relationship, it is somewhat “on and off”. They continue to be engaged to be married and the relationship problems mainly relate to her fiancé not understanding her accident-related health problems.
· Her social life is very limited, apart from her fiancé and family, and she has one close friend who sometimes takes her grocery shopping and comes to her house to talk to her.
· She misses the active social life of a normal person her age and doing things like shopping or going to nightclubs.
· She likes to get out of the house to go shopping, but it is mostly just to get out of the house, and she still finds that all the stimuli outside can be too much for her – especially loud noises and bright lights.
· Her personal hygiene is still lacking – she showers infrequently, sometimes only weekly, and she thinks this is “worse lately”. She continues to wear the same clothes for days at a time and does not care for her appearance.
· She finds everything, such as going to medical appointments or legal appointments about her case, makes her anxious and exhausted.
18It is also convenient to refer to two other affidavits relied on by the plaintiff:
(a) an affidavit by Silva Obeid (the mother of the plaintiff) sworn on 17 February 2022;[14] and
(b) an affidavit by Taleb Obeid (the father of the plaintiff) sworn on 17 February 2022.[15]
[14]See such affidavit at pages 33-36 PCB
[15]See such affidavit at pages 37-40 PCB
19In her affidavit, the mother of the plaintiff gives the following salient evidence:
· She lives with the plaintiff and her sister (aged twenty-one), together with her husband, at Glen Waverley.
· She is not working and is in receipt of the disability support pension due to both physical and psychiatric issues subsequent to abuse suffered earlier in her life. At the time of swearing her affidavit, her husband, Taleb Obeid, was her carer.
· She describes the plaintiff prior to the transport accident as having a “very outgoing, bubbly personality”, and being a “very active girl”, who would regularly go out with friends, “walking, dancing, having fun”. She had a large group of friends who would do activities together. Her ambition, for as long as she can remember, was to work with children when she finished her schooling. She especially wanted to work with children who had special needs.
· The plaintiff and her mother came into conflict about her finishing her schooling to Year 12, because it was not required to obtain the qualifications she needed to work in childcare, but she insisted the plaintiff complete Year 12.
· She is aware that the plaintiff suffered from some stress and anxiety before the transport accident concerning pressure on her around her schooling and her exams.
· She does not recall the plaintiff suffering any physical injuries of note prior to the transport accident and recalls that she was a healthy young woman.
· The plaintiff has continued to reside with herself and her husband and their other daughter after the transport accident.
· The plaintiff is not the same person in her eyes since the transport accident, and as her mother, she becomes upset for her, and is worried about her future.
· Physically, the plaintiff is now limited in what she can do. She can only do short walks, and she will regularly lock herself in the bedroom and refuse to talk to her about what is going on.
· The plaintiff complains regularly of nausea and vomiting due to headaches and migraine pain, and also complains regularly of body pain. Sometimes the plaintiff becomes upset if her mother strokes her arm for comfort, as this causes her pain.
· The plaintiff’s days are variable, and some days she is able to do more than others, but she no longer works.
· The plaintiff no longer drives, on medical advice.
· She tries to push the plaintiff to do some things such as cooking for special occasions, as before the transport accident she liked to cook and was a very good cook.
· The plaintiff rarely performs household duties such as cleaning, but for her the worst thing about the plaintiff’s current condition is her personal hygiene. She wears no makeup as she used to, and her most common outfit, even during the day, is her pyjamas, which she regularly does not change out of during the course of the day. She no longer does her hair or styles it in any way, and she does not shower regularly.
· She has noticed that the plaintiff has gained some weight since the accident and becomes upset when this is discussed. She believes that this has affected the plaintiff’s self-esteem.
· On occasion she and the plaintiff will go to shops, and it upsets her, because if they browse in shops the plaintiff only wants to look at pyjamas.
· On occasion she will have lunch with her daughter, or a coffee together, and sometimes will drive her, at her request, to a friend’s house to visit, and also to her fiancé’s house.
· The plaintiff’s friendship group has significantly diminished, and she now only has two friends, Rita and Priscilla.
· She has not seen any real improvement in the plaintiff over the last couple of years, which worries her immensely.
· The plaintiff does seem to have a better understanding that she has to learn to live with pain and cope with it, but that is all she has really noticed in recent times.
· The plaintiff does “of course” have a fiancé, and her mother thinks it must be very tough for him to deal with the plaintiff and her condition, and she is unsure about the long-term future of the relationship.
20By way of his affidavit, the father gives the following salient evidence:
· He is not currently employed, having retired from the automotive industry where he worked for about twenty-five years. He receives a part-pension by way of income, and at the time of swearing his affidavit, he was his wife’s carer and had been so since about 2015.
· Prior to the transport accident, he would describe the plaintiff as always being “on the move”. She was a talkative, active, chatty girl, and at school was often told by teachers that she needed to talk less and keep quiet in class.
· She finished Year 12 at school, but, although motivated, schooling was not her “strong suit”. She was not academically minded.
· He would describe the plaintiff overall as “energetic, talkative, motivated and active”.
· Prior to the transport accident, she had a number of friends, and would go out nightclubbing with them, to restaurants, and to movies.
· She was very excited to obtain her driver’s licence and used to enjoy driving her friends around.
· The plaintiff liked her job in childcare and was always very interested in working with children and liked looking after children. In Year 10 at secondary school, concurrent with her schooling, the plaintiff was motivated enough to undertake a Certificate II at Box Hill TAFE in child services to enable her to begin caring for children before finishing school. While she was completing her diploma, she was also doing before and after-care at a primary school to gain experience.
· Since the transport accident, he says the plaintiff is no longer the person he has just described. She is very moody and has mood swings and can be upset and angry for no apparent reason.
· She has not been permitted to drive, causing her to lose her independence, and he is often called upon to drive her somewhere she would like to go, such as a friend’s house, her fiancé’s house, to appointments, or to the shops.
· He believes that the plaintiff has one remaining friend, Rita.
· Most of the time the plaintiff stays at home during the day, waking late, any time from 10.00am to 12 noon, and appears to take a lot of time to get going in the morning when she does get up.
· She is not very helpful in terms of household tasks and duties and appears to be feeling “down” in mood a lot, and sometimes he has to help her clean up her room.
· She spends much of her time during the day watching television, and her father says she really has to be pushed to go out of the house – to go shopping, for example.
· Very occasionally she will take the dog for a walk.
· Her father notes that she often puts on a “brave face” when seeing lawyers or doctors. He attends most appointments with her, and she is noticeably lowered in mood when she returns home after the appointments, to what she has appeared in those appointments.
· Her personal hygiene is not as it should be, nor as it used to be. She finds it difficult to shower, and wears pyjamas most of the time.
· She has a fiancé, and he appears to be having a very difficult time with the plaintiff. The plaintiff’s father is fearful that the relationship may not last.
· He tries to push the plaintiff with prompts to do things, for example to have a shower, and feels very sad because this was not the daughter he had before the transport accident.
Medical, psychological and psychiatric treatment of the Plaintiff following the transport accident
21Before referring to the cross-examination of the plaintiff by Senior Counsel for the defendant, I consider it helpful to have an understanding of the various treatments that the plaintiff has undergone, which have given rise to a myriad of diagnoses. Over the years, the plaintiff has been treated by general practitioners, physiotherapists, pain specialists, neurologists, psychologists, neuropsychologists and psychiatrists. Beyond this, there is also an array of medico-legal experts covering a variety of specialities.
22All such material is contained in the Court Books tendered by each of the parties. I have read all such material and I will give some detail about the nature and extent of the various treatments undertaken by the plaintiff.
23However, I also intend to refer to some of the medical records pertaining to the plaintiff prior to the transport accident, which is referred to in some of the material which I later summarise.
24I initially refer to the subpoenaed records of the Glenmount Medical Clinic,[16] and, in particular, to the following consultations:
(a) On 26 August 2014, when the plaintiff was completing Year 12, she attended the clinic complaining of “stress in YR 12, comfort eating and weight gain, small patch hair loss/broken hairs behind left ear from tugging, anxiety over a few issues which we discussed”; and
(b) On 22 September 2014, she again attended the clinic when she was seeking special consideration for the VCE (Year 12 at school). In particular, she gave a history that “caring for mother who has had 2 knee operations + stomach and severe depression. Father has lost job and there is financial stress. Has to take care of 14 year old sister.”
[16]See such records at pages 61-62 DCB
25I also refer to the subpoenaed records of the Silverton Medical Clinic.[17] In particular, the plaintiff attended that clinic:
(a) on 28 September 2016, complaining of panic attacks – “went to job, does not want to work there, lots of responsibility”; and
(b) on 4 January 2018, she attended the clinic complaining of neck pain with no cause given, and at that stage was prescribed Mobic. Although there were further appointments at that clinic before the transport accident, there were no further complaints of neck pain.
[17]See such records at pages 54‑60 DCB
26I now refer to the material available to the Court in relation to the occurrence of the transport accident on 14 September 2018. In particular, I refer to the Ambulance Victoria report dated 14 September 2018.[18] Although the ambulance attended at the transport accident, with ambulance officers examining the plaintiff, the plaintiff was not conveyed by the ambulance to any hospital on that day.
(a) In that record, under the heading “Description”, it is recorded:
“21 yr old female, generally well. Pt was the driver of a vehicle that was stationary, when a car travelling approx 50 km/hr rear ended her. Pt states her car was pushed to the other side of the road. Pt states she was wearing a seatbelt, airbags activated, nil headstrike or LOC,[19] self-extricated pt c/o an ache to upper thigh.”
[18]See such report found at pages 180-183 PCB
[19]Referring to “loss of consciousness”
(b) Under the heading “Assessment”, it was recorded that no abnormalities were detected, in particular, no evidence of altered conscious state, diaphoretic, dizziness, headache, nausea, shortness of breath or vomiting.
27I also refer to the letter from RACV to the plaintiff dated 25 September 2018, wherein the plaintiff is advised that the vehicle she was driving at the time of the transport accident had “extensive damage” and would be written off.[20] I also refer to various photographs of her damaged vehicle, which revealed extensive damage, both to the front and back of her vehicle.[21]
[20]See letter from RACV dated 25 September 2018, at page 265 PCB
[21]See photographs at pages 267, 268 and 269 PCB
28I also refer to the Monash Emergency Department summary dated 15 September 2018.[22] The document from Monash Health records that the plaintiff presented at the Emergency Department at the Monash Medical Centre on 15 September 2018 at 10.20am (one day after the transport accident) and was admitted to the Monash Medical Hospital overnight. She was initially seen by Dr Gabriel Blecher. The presenting problem was identified as a motor vehicle accident and there was no past medical history, no history of current medications and no history of allergies, save that penicillin gave rise to a rash. In particular, under the heading “History of presenting complaint”, it is recorded:
“Driver, stationary, restrained, struck at moderate speed from behind on freeway. Likely brief LOC, woke with car on opposite side of freeway. EMS called, assessed at scene and not transported to ED. Pain increased overnight: R side of abdo + swelling noted, lower anterior R chest and today some lateral neck pain. No limb paresthesia. Ambulant. Normal BM and Voiding since. No vomits.”
[22]Such summary found at pages 184‑185 PCB
29Examination revealed the plaintiff to be alert and have a “GCS” of 15. Chest examination revealed some lower anterior right chest wall tenderness which was not severe, no crepitus and slightly diminished VS on the right side. Abdominal examination revealed softness and tender to very light palpitation over bruised area just right of the umbilicus consistent with abdominal wall bruising rather than deep injury. Neurological and spine examination revealed no cervical midline tenderness and limb examination revealed no limb tenderness and full ROM (range of movement).
30The provisional diagnosis prior to investigation in the Emergency Department was probable abdominal wall bruising, although unlikely to have suffered intra-abdominal injury or right pneumothorax. The plaintiff was treated with analgesia, CXR and observed in the unit, and was considered suitable to go home if she remained comfortable. Later, the plaintiff underwent an ultrasound of the abdomen and her bloods and CXR “appeared normal”. She was discharged with a Transport Accident Certificate for three days off work, after which the general practitioner could organise more time off work if needed. The ultimate diagnosis was other specified injury to abdomen.
31As is made plain in her second affidavit, the plaintiff initially attended doctors at the Silverton Medical Clinic who, in turn, referred her to various specialists. She later consulted a further general practitioner, Dr Hyunjo “Jo” Hur, at the Glenmount Medical Clinic in Glen Waverley, which apparently was closer to her home. Dr Hur also referred the plaintiff to various specialists – for example the neurologist, Dr Chen, and the psychiatrist, Dr Vadasseri.
32Before tracing her medical treatment as a result of being a patient at these two medical clinics, I initially refer to various attendances by the plaintiff to various emergency departments following the transport accident:
(a) I refer to the ambulance report dated 11 October 2018, when an ambulance was called to the residential address of the plaintiff because of alleged “BREATHING PROBLEMS: DIFF SPEAKING B/W BREATHS.”[23] In the report, it was reported that the plaintiff “who is generally healthy and well”, had a: “mechanical fall by stepping into a garden bed and rolling her [right] ankle.” – the patient denied any headstrike or loss of consciousness. At the time of attendance, examination of the right foot showed normal colour, normal temperature, normal sensation and normal movement, with distal pulse present. The plaintiff was also weight bearing. The tentative diagnosis was “soft-tissue injury”;[24]
[23]PCB 186
[24]See Ambulance Report at pages 187-189
The plaintiff was discharged from Eastern Health on 11 October 2018;
(b) On 3 January 2019, the plaintiff presented to the Emergency Department of Monash Medical Centre, reporting that she had constant pain since the transport accident three months ago and, in particular, the following was recorded:
“… Chronic, generalised pain, tiredness, forgetfullness since the accident.
Today she reports that the pain was much worse, was due to see the GP but flat like she couldn[’]t get out of bed to go. Is currently being seen by a neurologist, pain specialist, GP and has started seeing a psychologist.
Reports poor sleep, concentration recently. Temazepam doesn[’]t help her sleep, reports having flashbacks to the accident and links [scil thinks] about it often, riding in a car has become traumatic.
Observations and General Exam: looks tired but otherwise well.
Mental Status / Psychiatric Examination: flattened affect, mood low. sleep poor, concentration poor,
Provisional Diagnosis prior to Investigation in the Emergency Department: chronic pain with probable depression/PTSD like condition.
ED Management/lnitial Treatment; Seen by Anastasia CIC - discussed management options. Explained that giving stronger opioid pain killers out of the ED is not a wise decision as the[re] is a high risk of developing dependence. Offered that patient can stay in the ED for a time to see if her pain can be improved or she can go home and see her GP tomorrow for pain managemnet. It is best if there is a single prescriber for pain management. Patient opted to go home and see her GP. Happy to review again in the ED if there is an acute change.”[25]
[25]PCB 192
(My emphasis).
(sic)
(c) I refer to the report from Monash Health dated 26 October 2020, which reports that the plaintiff was admitted to the Monash Medical Centre on 30 September 2020 and was discharged on 6 October 2020.
At that time, the plaintiff gave the following history:
“Headache for last 4/7 – ‘burning’ on R) side
Also then noticed LL bilateral ‘pins and needles’ - feeling weak generally but particularly LL + intermittent blurry vision both eyes when concentrating for ~1 min- vision now normal Nausea for 4/7 - improved with antiemetic (also has with migraine, similar severity) Feeling unsteady on feet
At same time found that it was harder to form and say words. Knows what she wants to say
Was seeing physio who was concerned that speech was below baseline - has not been talking to family recently so they have not commented on this
Pt reports thought this could be stress related as she has been more stressed due to TAC issues
Usual migraine is generalised a/w photophobia, aura, usually goes into dark room + usually cannot tolerate being touched
Usually has chronic pain in limbs - this is at baseline
Usually has issues with memory following MVA - at baseline
Phx
fibromyalgia
In setting of MVA 2 years ago - sandwiched between two cars @ 100km/h. Reports OP MRI at Dandenong pathology that year
- Seeing physiotherapy
Depression/anxiety
- Seeing neuropsychologist
Migraines
- managed by GP - has tried triptan and ?triptan spray without success
- neuro referred
Medications
gabapentin - 200mg TDS
amitriptyline 50mg nocte
circadin - 2mg nocte
cymbalta - 4Duloxetine 60mg mamne
Allergy - amoxilliciliin - itch/ratch, no anaphylsxis
Shx
From home with family
Reports not been speaking with them recently
Smoker
No ETOH, other substances
Progress
#Likely functional neurological disorder
- MRI head - no clinical cause
- MRI spine - no report but spinal cord nil abnormalities on examination.
- no dvt
- Commenced on cymbalta by GP and is on endep
- Some effect with chlorpromazine but dizziness. Changed to candesartan
- Has a psychologist and psychiatrist in community already. CL psych recommended following
up with GP and psychology/psychiatry.
- SW review - Supportive counselling performed. facilitated and conducted a breathing
exercise and encouraged Hannan to utilise this strategy & advised they are guided breathing
exercise on youtube.
- Cleared by allied health review for dc
- D/c home with Neurology OPC (referred)
- Continue candesartan 4mg OD
LMO follow up in 3-7days to monitor BP & headaches - LMO to uptitrate candesartan as
migraine prophylaxis as BP tolerates
OP community psychology & psychiatry follow up - pt already has organised.”[26]
(sic)
[26]See Monash Health Report dated 26 October 2020, at pages 193-194 PCB
(d) I refer to the Monash Health Report dated 6 January 2021, which records that the plaintiff attended the Monash Medical Centre on that date and gave a history as follows:
“24/F presenting to ED with headache b/g migraines and Functional neurological Disorder
HOPC:
- Presenting with constellation of symptoms,
- headache,
- generalised weakness
- slowness in thought,
- pins and needles to hands and numbness over the lower limbs
- States that she always has these symptoms most of the time and
noticed a recent flair up since yesterday morning
- Headache being the most prominent symptoms, Severe
Generalised burning type of headache associated with mild nausea
and blurring vision
- also states that she feels vague and dissociated
- Usually has migraine land on candesartan prophylaxis
- states that she has been increasingly tired over the last 2 weeks
and has been too much to handle
- denies any trauma
- No fever- Bowels and bladder normal
past history:
Fibromyalgia - In the setting of a MVA 2 years ago
Functional Neurological disorder diagnosed last October at Monash - had a similar presentation AND was evaluated by neurology
MRI Brain and SPINE - Nad
Also sees a Private psychologist and psychiatris[t] fro the same
Medications
Gabapentin 200 mg TDS
melatonin 2 mg
Cymbalta 90 mg mane
Social History:
- lives with family
- Smoker
- unemployed
Physical Examination
Observations & Measurements
T:36.1 °C (Tympanid) HR: 90(Perlpheral) Sp02: 99%
patient appears well
Slow speech
able to walk unsupported,
Not dysarthric
B/L PEARL
Higher mental functions normal
Cranial nerves - normal
patient assessed in chairs
tone, power normal in both UL and LL
…
ED Progress
Impression : ? atypical Migraine
Plan:
Bloods
trial of largactil
SSU meantime
Will Reassess patient after infusion
Patient admitted to SSU
- Reassessed after largactil infusion
- Feeling better , still complaining of mild dizziness
- explained to pateint that it is likely to a side effect of largactil
Bloods unremarkable
Discharge home.”[27]
(sic)
[27]PCB 197-98
33I again return to the records of the Silverton Medical Clinic and note that the plaintiff first attended at that clinic after the transport accident on 17 September 2018 and consulted with Dr Rachael Abdelmalak and gave a history she was involved in a motor vehicle accident on 14 September 2018, after which she went to the Emergency Department and was admitted overnight at the Monash Medical Centre.
34At the time of her consultation with Dr Abdelmalak on 17 September 2018, the plaintiff was found to have a bruise on her abdomen, complained of back pain and neck pain, and she was unable to abduct her left shoulder. Dr Abdelmalak gave the plaintiff a medical certificate, pain-relief medication, and arranged for her to undergo an x‑ray and an ultrasound of her shoulder.
35Thereafter, the plaintiff attended the Silverton Medical Clinic as follows:
(a) On 19 September 2018, complaining of insomnia, PTSD, neck pain and back pain. Dr Rachael Abdelmalak gave the plaintiff at TAC Certificate to be off work and prescribed Stilnox tablets;
(b) On 15 October 2018, she attended the clinic complaining of a non-specific right ankle pain, with such ankle swollen, when she “twisted her foot”. Again, a medical certificate was given to the plaintiff by Dr Rachael Abdelmalak;
(c) On 17 October 2018, the plaintiff again attended the clinic complaining of a ligament injury and there was the preparation of a care plan by Dr Rachael Abdelmalak;
(d) On 25 October 2018, the plaintiff attended the clinic and complained of neck pain and back pain, at which time Dr Rachael Abdelmalak prescribed Panadeine Forte tablets;
(e) On 26 October 2018, the plaintiff attended the clinic and complained of ankle pain after the transport accident and being unable to do any work, with the physiotherapist advising her not to work for five weeks;
(f) On 31 October 2018, the plaintiff attended the clinic complaining of neck pain with referred arm pain, back pain and insomnia. At that time, Panadeine Forte tablets were ceased, and the plaintiff was prescribed Endep tablets;
(g) Unfortunately, the date of the next consultation is not set out in the records, but the plaintiff did attend, complaining of “depression” and was provided a mental health care plan and referred to the psychologist, Dr Helen Chan.
36In November 2018, the plaintiff continued to attend the Silverton Medical Clinic, but came under the care of the general practitioner, Dr David Abdelmalak. The plaintiff relies on reports from Dr David Abdelmalak, dated 15 May 2019;[28] 13 January 2020 (a medical information report);[29] 13 July 2020;[30] 21 September 2020[31] and 23 September 2020.[32]
[28]See pages 42-43 PCB
[29]See page 44 PCB
[30]See pages 45-46 PCB
[31]See pages 47-50 PCB
[32]See pages 51-52 PCB
37In his report dated 21 September 2020 addressed to the solicitors acting on behalf of the plaintiff, Dr David Abdelmalak notes that he has consulted with the plaintiff since November 2018, but recently the plaintiff had decided to transfer her care to another general practitioner.
38In particular, he notes that the plaintiff was last seen in person on 11 August 2020. Those acting for the plaintiff posed various questions to Dr David Abdelmalak, which are responded to in the report dated 21 September 2020. When queried about the history provided by the plaintiff in relation to the transport accident and also subsequent treatment by him, Dr Abdelmalak noted:
“… Her first consultation at our clinic regarding this matter was on the 17th September 2018 with another GP.[33] She was investigated for her shoulder pain (investigation results normal) and was subsequently seen again on the 19th September with further pains (back and neck) and insomnia.[34] She was then referred to physiotherapy for conservative management of her pain. Pain specialist opinion was sought during this time, and Miss Obeid was commenced on amitriptyline and referred to a psychologist by the end of October 2018. I first saw Miss Obeid regarding her symptoms on the 12th November 2018. She went on to develop migraines which have been managed with doses of [I]migran on an ‘as needed’ basis. From November 2018, she has gone on to have a multidisciplinary management approach with psychological, physiotherapy, rehabilitation physician, neuropsychological, and pain physician reviews and recommendations on management. She was also referred to a neurologist and psychiatrist for further assessment and management. Regarding her medication, she has been using simple analgesia (paracetamol and non steroidal anti-inflammatories), an uptitrating dose of amitriptyline, as well as duloxetine for both her mood symptoms as well as her pain and [I]migran as required for migraines. She has also been on gabapentin for centralised pain and melatonin to assist her sleeping issues.”[35]
(My emphasis)
[33]Most probably Dr Rachael Abdelmalak
[34]Subsequent MRI imaging of the neck and spine revealed no significant pathology.
[35]See report of Dr David Abdelmalak dated 21 September 2020, at page 47 PCB
39At the time of writing the report, Dr David Abdelmalak considered the appropriate diagnoses to include features of PTSD, with depressive and anxiety symptoms and chronic pain with central sensitisation. In this respect, Dr David Abdelmalak refers to such diagnoses as a “synthesised list” based on a collection of specialists’ reports.
40Dr David Abdelmalak also states that the diagnoses referred to “are thought to be” as a result of her transport accident/aggravated by her transport accident – which includes her history of chronic pain with central sensitisation (a subset of this is a report of spinal pain and shoulder pains which can fluctuate in intensity/severity and location) and her psychological symptoms.
41Dr David Abdelmalak also noted that, based on correspondence received from the rehabilitation team involved with the plaintiff, that there had been a “mild functional improvement” in the plaintiff’s condition, with some reported improvement in pain levels since the commencement of therapy. However, he notes that she has been advised to restrict certain activities such as bending, heavy lifting (greater than 5 kilograms), maintaining prolonged postures (longer than twenty minutes) and engaging in any repetitive tasks or movement. The plaintiff has noted that such activities have aggravated her pain symptoms.
42Dr David Abdelmalak, at the time of the report, considered that a combination of her physical and psychological symptoms does impact and impede her ability to re-engage with pre-injury employment ꟷ for example physical tasks like repetitive bending and heavy lifting (for example picking up a child if needed), or prolonged postures, not being able to be undertaken by the plaintiff. Dr David Abdelmalak considered that the plaintiff’s psychological wellbeing was intertwined with her physical wellbeing and therefore capacity for pre-injury duties cannot be assessed solely on the basis of either – for example the plaintiff’s fatigue, feelings of hopelessness and anxiety to engage with certain activities ꟷ and new activities can amplify feelings of physical discomfort.
43Overall, it was considered by the plaintiff and her treating team, according to Dr David Abdelmalak, that it was unlikely she will return to her previous employment in childcare. He notes that the plaintiff has been interested in, and encouraged to, upskill herself with further courses to enable her to engage with alternate roles in the childcare sector.
44Dr David Abdelmalak notes that the plaintiff described struggling with simple activities of daily living, including keeping her room tidy, shopping, cooking and other household chores. He notes that she reports she is easily fatigued and cannot maintain prolonged levels of physical activity, and also reports that her pain is easily aggravated by simple tasks, including bending and prolonged postures. The plaintiff also notes psychological distress with many triggers, including symptoms of acute anxiety and panic, and driving/being on the road, as well as being easily overwhelmed by her activities of daily living. Dr Abdelmalak notes that her concentration and memory are also reportedly affected, with some impairment noted on neuropsychological assessment undertaken in March 2019.
45In particular, Dr David Abdelmalak notes that the plaintiff also considers her social and personal life has been affected, noting that she has been more isolated and feels incapable (both physically and psychologically) to engage with others, either due to physical fatigue or the psychological barriers, together with her insomnia.
46Dr Rachael Abdelmalak referred the plaintiff to the clinical psychologist, Dr Chan Kam-Yin Helen, who initially assessed the plaintiff on 2 December 2018. The plaintiff relies on reports from Dr Chan, dated 19 February 2019,[36] 19 June 2020[37] and 11 September 2020.[38]
[36]See pages 111-112 PCB
[37]See page 113 PCB
[38]See pages 114-124 PCB
47In particular, I refer to the report of Dr Chan dated 11 September 2020 addressed to the solicitors acting on behalf of the plaintiff. The psychologist confirmed that she commenced treating the plaintiff on 12 December 2018, which continued for eight treatment sessions to 22 May 2019, when the plaintiff terminated psychotherapy because she was referred to a pain management program at Advanced Health Care in Dandenong under the care of Dr Ong, a rehabilitation physician.
48However, on 26 March 2020, the plaintiff returned to Dr Chan for individual psychotherapy, because the plaintiff considered she had not “profited” from the pain management program. Dr Chan notes that psychological sessions were conducted by phone during the COVID-19 pandemic. She notes that there seemed to be some improvement in her mental state as a result of sessions focusing on self-care and “reframing” over the period from March to May 2020. Dr Chan notes, though, that in May 2020, she “plummeted into a state of anxiety and depression” when she was assessed by TAC’s occupational physician and psychiatrist in August and June 2020. At that time, she was back to a stage of panic, depression and intense fear.
49Dr Chan diagnosed the plaintiff to be suffering from PTSD as a result of the transport accident and to this end she met the full criteria of PTSD according to the Diagnostic and Statistical Manual of Mental Disorders, fifth edition. At the time of writing the report, Dr Chan was also of the opinion that the plaintiff had some symptoms of an Adjustment Disorder with Mixed Anxiety and Depressed Mood, together with general chronic back pain and stiffness, chronic neck pain and stiffness, severe migraine headaches and chronic ankle pain. She considered the plaintiff to have moderate to serious symptoms which impaired her social and occupational functioning. In particular, at the time of her report, Dr Chan considered the plaintiff to be unfit for her pre-injury duties as a result of her psychiatric injury and chronic pain, and also, she would be unfit for any suitable employment, and such situation was likely “to last for the foreseeable future”.
50Dr Chan considered that the plaintiff would need to continue her psychological treatment and probably need a referral to a psychiatrist to provide pharmacotherapy. Furthermore, she would probably need an occupational therapist to provide equipment to assist her in performing activities of daily living, such as taking a shower, and a pain specialist to explore ways to alleviate her chronic pain. In particular, she notes that the plaintiff would require referral to a rheumatologist to treat her chronic pain and back pain.
51Dr Rachael Abdelmalak also referred the plaintiff to the adult and paediatric neurosurgeon, Mr Chris Xenos. I refer to the report of Mr Xenos dated 20 November 2018.[39] Seemingly, the plaintiff was examined by Mr Xenos on that date. The plaintiff gave a history of the transport accident, and at the time of the examination, described to Mr Xenos, mechanical and muscular neck pain, with stiffness, constant lower back pain, worse with movement, and discomfort in both of her shoulders. Furthermore, the plaintiff informed Mr Xenos that she considered that her problems, particularly her pain, was getting worse rather than better, notwithstanding that she was on Endep and attending physiotherapy. In particular, Mr Xenos records:
“Additional history noted is that she has discomfort in both shoulders, whilst I’m not convinced of true shooting radicular pain down either arm, she mentions a ‘bruising sensation’ in the right forearm which is only noted when she’s touched, with some vague paraesthesia in the right fingers of an intermittent nature. She could not tell me, and I have no record of indeed the right side of her torso and arm were bruised following the event. In addition, whilst she mentions non-specific lower back pain which sounds mechanical and muscular in nature, she also mentions some intermittent thigh numbness, anteriorly on the right (L3), not associated with true radicular pain. She mentions no numbness or pain distally in the toes, but possibly a bit of discomfort in the right ankle area. But once again I’m not sure if the right leg bore the brunt of any direct trauma or bruising following the accident. She denied any perineal numbness and no incontinence.
During the consultation, on examination she became emotional, told me she wasn’t coping well with the pain, and was in tears. Her gait was slow, she had difficulty getting in and out of the chair because of pain in her lower back, and movement of her neck was restricted in all directions because of pain and stiffness. There was tenderness on palpation to the neck and shoulder muscles, but indeed from my perspective, upper limb examination demonstrated no wasting, no true weakness when you took pain into account, and possibly the only finding was reduced light touch to the right little finger alone. Her reflexes were reduced.
Leg examination was once again limited because of pain, but she could only bend down and touch her knees. She was very proppy on her feet. Further examination demonstrated no foot drop, no distal numbness or weakness, and both knee jerks were present but reduced. The only abnormality there was some reduced light touch to the anterior and lateral aspect of the right thigh alone.
I did review an MRI examination of the cervical spine and I agree with the report. Apart from its loss of normal lordosis which is probably a sign of pain and muscle spasm, there is no compressive lesion. There is nothing to operate on. She is very fortunate.
There was no other imaging to review, but I note that you did perform some x-rays and ultrasounds to the right shoulder which were essentially normal as well.
Certainly my strong recommendation, in view of her having non-specific back symptoms and possibly some vague symptoms of numbness in the right thigh, you can consider performing an MRI scan of the lumbar spine, but I’ve forewarned the patient that it’s likely to be normal. I’ll leave that in your capable hands.”[40]
(My emphasis)
[39]See such report at pages 76-77 PCB
[40]Op cit at pages 76-77 PCB
52Dr Atef Abdelmalak (situated at the Silverton Medical Clinic) referred the plaintiff to Back Care & Sports Therapy and, in particular, to the physiotherapist, Mr Bingxuan He, on 26 October 2018. In a report dated 28 May 2019 addressed to the defendant,[41] Mr He noted that, when he initially consulted with the plaintiff, she complained of neck pain, back pain and ankle pain. She also complained of pain with gentle cervical movements, lying in a supine position and gentle soft-tissue work over her neck and back area.
[41]See report dated 28 May 2019, at page 62 PCB
53Mr He treated the plaintiff with soft-tissue work in prone position and a homebased exercise program. He reports that the plaintiff found the soft-tissue work painful and an unpleasant feeling with exercises. Mr He reduced the amount of soft-tissue work and focused more on education regarding “the potential whiplash or concussion and intermittent exercises”.[42]
[42]See report dated 28 May 2019, at page 62 PCB
54Mr He referred the plaintiff to the Melbourne Pain Group and, in particular, to Dr Ong who, in return, referred the plaintiff to other specialists and, in particular, a neuropsychologist who diagnosed “post concussion syndrome”.
55Mr He noted that, as the injury was in the brain, he did not think the plaintiff would benefit from frequent physiotherapy input and he encouraged the plaintiff to go to the Melbourne Pain Group and start rehabilitation with that group. He finally noted that he would continue to see the plaintiff on a monthly basis if needed to ensure she is not progressing in a worse way.
56Mr He referred the plaintiff to the Metro Pain Group and, in particular, initially to Dr Slava Poel, a specialist anaesthetist, consulting in pain medicine. The plaintiff relies on two reports from Dr Poel – the first dated 7 December 2018, addressed to the defendant[43] and the second report dated 20 December 2018, addressed to the physiotherapist, Mr He.[44]
[43]See such report dated 7 December 2018, at page 78 PCB
[44]See such report dated 20 December 2018, at page 79-80 PCB
57Dr Poel initially consulted with the plaintiff on 12 November 2018 and obtained a history of the transport accident and, in particular, a history from the plaintiff that she reported a “brief loss of consciousness with a short period of confusion and retrograde amnesia”.[45] The plaintiff also gave a history that, when she was discharged from the hospital, she had woken up that morning to “‘whole back and neck pain’” which had since persisted, and had expanded to involve headaches as well as intermittent right upper and lower limb pain with intermittent paraesthesia. Dr Poel also records that the plaintiff describes significant cognitive, mood and vestibular symptoms, as well as disturbed sleep with fatigue and, in particular, described herself as “confused all the time” and having difficulty with short-term memory. Dr Poel also noted that the plaintiff was emotionally labile, cries frequently and has frequent panic symptoms, particularly when alone. The plaintiff was also hypersensitive to stimuli such as light and noises, and frequently feels “dizzy”, and has had a number of falls without warning symptoms. The plaintiff also complained of daily occipital to frontal headaches without aura or autonomic features.
[45]See report dated 20 December 2018, at page 79 PCB
58On examination, the plaintiff was alert and appropriate with affect labile and she cried several times during the consultation. Her gait and posture were normal, with Romberg’s signs negative and there was no pronator drift.
59Upper and lower limb neurological examination was normal, although there was global weakness, possibly due to pain inhibition and the entire length of the axial skeleton was tender to palpation, particularly in the cervical region. Neural tension tests were negative and both upper and lower limbs were tender to gentle pressure, that is, dynamic tactile allodynia.
60Dr Poel explained to the plaintiff that in vulnerable individuals, physically and/or psychologically traumatic events can trigger onset of widespread pain, which is often accompanied by fatigue, mood disturbance and poor sleep. Dr Poel made a diagnosis of widespread pain with central sensitisation, post-concussion syndrome, features of PTSD and “difficult social circumstances”. Dr Poel was of the opinion that management of the plaintiff had to involve physical therapy, psychology and attention to sleep hygiene. Pharmacological agents commonly used included tricyclic antidepressants, SNRIs and gabapentinoids. Dr Poel noted the plaintiff had commence on some of these.
61Dr Poel also noted she had written to the TAC to seek approval for an allied health-based management program which will incorporate the above treatment.
62Dr Poel referred the plaintiff to Advance Healthcare and, in particular, to Dr Olivia Ong, a specialist pain and rehabilitation physician. The plaintiff relies on the following reports from Dr Ong – report dated 6 February 2019 addressed to Dr Poel;[46] report dated 8 February 2019 addressed to Client Assist, TAC, advising that the plaintiff was recommended to have a psychiatric consultation with Advance Healthcare’s psychiatrist;[47] referral dated 27 February 2019 to Professor John Olver, director of brain injury services;[48] report dated 10 July 2019 to the solicitors for the plaintiff;[49] report dated 1 October 2020 addressed to the solicitors for the plaintiff;[50] a referral dated 24 February 2021 addressed to Dr Kenneth Shum at the Melbourne Pain Group;[51] and a referral dated 26 May 2021 to Dr Babak Farr, specialist pain medicine and rehabilitation pain physician, at the Melbourne Pain Group.[52]
[46]Such report at pages 81-82 PCB
[47]See letter dated 8 February, at page 83 PCB
[48]See referral dated 37 February 2019, at pages 84-85 PCB
[49]See report dated 10 July 2019, at pages 86-88 PCB
[50]See report dated 1 October 2020, at pages 89-99 PCB
[51]See referral dated 24 February 2021, at pages 100-101 PCB
[52]See referral dated 26 May 2021, at pages 102-107 PCB
63I refer to the lengthy report from Dr Ong dated 1 October 2020 addressed to the solicitors acting for the plaintiff, and note the following:
· Dr Ong initially assessed the plaintiff on 6 February 2019. She obtained a history of her social circumstances at that stage – living with her parents and the circumstances of the transport accident, and the immediate events following that transport accident.
· At that time, the plaintiff complained of “right hemibody pain with burning, sharp and stabbing sensations and pins and needles”. The plaintiff also reported “colour changes to her right upper limb and right lower limb” and also “swelling of her right upper limb and lower limb”.[53]
[53]See report of Dr Ong dated 1 October 2020, at page 87 PCB
64The plaintiff reported allodynia of her right upper limb and right lower limb, but Dr Ong was unable to elicit allodynia and hypoalgesia over her right hemibody.
65The plaintiff had trophic changes in her nails in her right hand and right foot, causing Dr Ong to comment that “all of these constellations, symptoms and signs fulfil the Budapest criteria for right hemibody complex regional pain syndrome”.[54]
[54]See report of Dr Ong dated 1 October 2020, at page 87 PCB
66On that initial consultation, the plaintiff reported that her pain level, at its best, was 7/10 and at its worse, was 10/10, with prolonged activities worsening her pain. The plaintiff was unable to identify any relieving factors, such as lying on the bed, which worsened the burning sensation of her lower limb.
67Dr Ong commented that, whereas the plaintiff had no mental health issues prior to the transport accident, she now had anxiety, depression, anger and stress, together with PTSD symptoms.
68After the first consultation, Dr Ong was of the opinion that the plaintiff had symptoms of likely “post-concussion syndrome”; symptoms of likely “right hemibody complex regional pain syndrome” and had symptoms likely of “post-traumatic stress disorder, anxiety and depression”.[55]
[55]See report of Dr Ong dated 1 October 2020, at page 87 PCB
69At that time, Dr Ong referred the plaintiff to the neuropsychologist, Dr Dougal Phillips, for a neuropsychology assessment and also referred her to Professor John Olver for an assessment of any brain injury rehabilitation.
70The plaintiff was reviewed by Dr Ong on 31 May 2019, 19 June 2019, 3 July 2019, 17 July 2019, 24 July 2019, 21 August 2019, 20 September 2019, 9 October 2019, 20 November 2019, 13 December 2019, 24 March 2020, 15 April 2020, 2 June 2020 and 8 July 2020. The consultations on 15 April 2020, 5 May 2020, 2 June 2020 and 8 July 2020 were by way of telephone review.
71Dr Ong noted, after her second consultation on 31 May 2019, that the plaintiff was being medicated with Endep, Sumatriptan and Cymbalta. On commenting on her progress, Dr Ong stated:
“… [The plaintiff] was assessed by Prof Olver at the Brain Injury Rehabilitation Clinic. … [The plaintiff] was deemed not suitable for brain injury rehabilitation. Medically, her pain state had been getting worse. Her pain was worst at both feet with a strong neuropathic component. Physically, … [the plaintiff] remained inactive due to pain. … [The plaintiff] saw a physiotherapist which was not helpful. Psychologically, … [the plaintiff] had been seeing a community psychologist for her anger management, mood management and impact of pain. … [The plaintiff] completed a neuropsychological assessment with Dr Dougal Phillips on 22 March 2019, and Dr Phillips felt that … [the plaintiff] did not have a head injury; instead his impressions were that she had symptoms of functional neurological disorder (FND) which could affect her thinking skills, psychological factors such as anxiety, depression, post-traumatic stress and she had a chronic pain syndrome.”[56]
(My emphasis)
[56]See report of Dr Ong dated 1 October 2020 at page 2, and, in particular, page 87 PCB
72Following that consultation, the plaintiff was trialled with Melatonin and Dr Ong “facilitated” a psychology review with her colleague, Mr Charles Ruddock, and a physiotherapy review with her colleague, Mr Luke Surkitt.
73In particular, I refer to the report of Dr Ong dated 1 October 2020 addressed to the solicitors acting for the plaintiff, wherein she sets out in some detail, management plans for the plaintiff after each of her various consultations, up to and including her last consultation on 8 July 2020.
74Following that consultation, Dr Ong stated:
“I saw ... [the plaintiff] on 8/7/20 via telephone review. Her current medications included Endep 50mg nocte, sumatriptan, Cymbalta 30mg nocte, gabapentin 200mg t.d.s. and Melatonin 2mg nocte. This was a post-NPMP Medical FU2 review. Nothing had changed, slow progress. Medically, she had a recent IME who declared that she was feigning her illness and that she has capacity to return to work. It went for 35 minutes and her pain was aggravated by the assessment and travel. She had a fall a day or so later getting out of bed, which [sic] she hit her head but had not seen her GP yet. She had issues with her balance which caused her falls. I advised … [the plaintiff] to see her GP about the vomiting, dizziness and her recent falls. She was feeling tired, not exercising. Her pain level was pretty much the same despite Endep, Cymbalta and gabapentin. Given she was falling a lot, I advised her to see her GP to start to wean her gabapentin over the next three months. Physically, Luke Surkitt called Emma Chambers from AMS (occupational rehabilitation consultant). There was minimal progress for … [the plaintiff]. Her psychologist and neuropsychologist have written letters stating she has cognitive and psychological barriers to completing the proposed course. The TAC might initiate discussions with practitioners (clinical panel) and the TAC was keen for her to remain engaged with occupational rehabilitation services. She had been doing an original Certificate IV course one day per week over many months. Other options may include (and be more manageable) such as a computer course over 3-4 days over 10 weeks. Her IME report was released to us which reported contradicting behaviours. Psychologically, … [the plaintiff] was already linked in with Dr Dougal Philips, although the TAC only allowed one session with Dougal. I did not need to do another neuropsychology referral to Dougal. … [The plaintiff] was still seeing her psychologist over the phone every two weeks.”[57]
(My emphasis)
[57]See report of Dr Ong dated 1 October 2020, and, in particular, at page 94 PCB
75Later in the report, it would appear that Dr Ong maintained the diagnoses that she originally referred to.[58] Those acting for the plaintiff posed various questions and I refer to that evidence:
[58]See report of Dr Ong dated 1 October 2020, at page 90 PCB
“4. Do you consider the transport accident on 27 September 2018 to be a cause of the current injury and impairment of our client’s spine? If so, provide details. Please note that the accident does not need to be the sole or dominant cause of the injury.
No, the transport accident on 27 September 2018 is not a cause of the current injury and impairment of our client’s spine as the plaintiff had a pre-existing back condition prior to the transport accident on 27 September 2018. However, the transport accident exacerbated her back pain from a pre-existing condition.
5.Do you consider the transport accident on 27 September 2018 to be a cause of the current injury and impairment of our client’s right shoulder? If so, provide details. Please note that the accident does not need to be the sole or dominant cause of the injury.
Yes. Diagnostically, ... [the plaintiff] has symptoms of likely functional neurological disorder with local weakness at right ankle and it has associated symptoms of right hemibody complex regional pain syndrome and symptoms likely that of post-traumatic stress disorder, anxiety, and depression. There has not been an aggravation of a pre-existing medical condition.
6.Do you consider the transport accident on 27 September 2018 to be a cause of the current injury and impairment of our client’s left shoulder? If so, provide details. Please note that the accident does not need to be the sole or dominant cause of the injury.
No.
7.Do you consider the transport accident on 27 September 2018 to be a cause of the current injury and impairment of our client’s psychological/psychiatric injury? If so, provide details. Please note that the accident does not need to be the sole or dominant cause of the injury.
A:Yeah
Q:And what he’s really suggesting to you is well why can you do that if that was going to increase pain? Do you understand?---
A:Yes. Um, I think it was similar to yesterday because there was some of me bending my legs as well.”
MR SMITH:
Q:“Well I’m going to put it to you, it will be a matter for His Honour, but you bent far more fully in that video then you demonstrated to His Honour yesterday?---
A:Um, no, I don’t think so.
Q:You disagree?---
A:I do.
Q:I’m going to put it to you that you held that position of being bent over much more fully for extended periods, it wasn’t just sort of up and down, you were down, crouched over, rummaging around in the bins, do you agree with that?---
A:Um.”
HIS HONOUR:
Q:“You understand what counsel’s?---
A:Yeah.
Q:It’s one thing, you know, someone standing up and they bend over to their desk to pick up a pen that’s one thing?---
A:Yeah.
Q:That’s done in a fraction of seconds? But then it’s another thing of what’s being suggested to you is that you held the position of the bend for a period of time. I’m not talking for hours or for a long time, but you held the bend while you - as counsel has put - as you were rummaging in the bin which you were looking around what was in the bin?---
A:Yes, that’s correct.
Q:Do you agree with that proposition?---
A:Yes, yes.
Q:You agree with that?---
A:Ah, yes.
Q:All right, okay.”
MR SMITH:
Q:“And I want to suggest to you that you repeated - it wasn’t just one occasion where you bent more fully, there was several occasions that you made that full or more full bend, do you agree with that?---
A:Ah, yes, there was more.
Q:And I want to suggest to you that whenever you came up from that bending position you didn’t display any signs of difficulty or pain from getting out of that bent over position do you agree with that?---
A:Um, like I was probably in pain when I was doing it, but I just don’t show it.
Q:All right. And do you agree it was fairly brightly lit in the store?---
A:Um, yes.
Q:The exact sort of store that would cause problems with your migraines, according to your affidavit, do you agree?---
A:Ah, yes.
Q:And do you agree that there was a fair number of people around?---
A:Ah, yes.
Q:So, a bit of a noisy environment with all those people?---
A:Ah, yes.
Q:Exactly the sort of environment which would make your migraines and your pain worse, correct?---
A:Ah, correct.
Q:So we’re there seeing you in exactly the sort of environment that makes your pain worse, doing exactly the sort of thing that makes your pain worse according to you, and again you agree that there was no apparent difficulty in your attending to any of it?---
A:Um, I was having difficulties.
Q:Yes, but you say it’s - this is your position, ‘I’m in terrible pain but I don’t show it, and no one watching me could conclude that I had terrible pain because I don’t show it’?---
A:Um, yeah.
Q:Madam I want to suggest to you, and I did before, that your entre presentation about being very disabled is a ruse, that is a lie?---
A:Ah, no.
Q:I want to suggest that film indicates very well the level of function you have in your day-to-day life, and it is unimpaired?---
A:Um, no.
Q:And so what is your explanation about the level of activity that we saw you engaging in in the film?---
A:That I was preparing myself for that day, because I knew that day was happening, so I made sure I had had the proper rest.
Q:So it’s a question of rest is it? And what’s the rest that you need to have a trip to Collinwood for a couple of hours and then a trip to the shops?---
A:Well it just depends.
Q:Do you agree that you’ve never in your affidavit said anything about avenging to have a proper amount of rest before you go out?---
A:Ah, yes.”[135]
[135]T131, L15 – T136, L16
The re-examination of the Plaintiff
156The plaintiff gave evidence that prior to the transport accident, she would wear skirts and dresses but since the transport accident she did not think that she wore them at all or at the very least only sometimes but overall, she thought she was wearing dresses and the like 90 per cent less than prior to the transport accident. When queried why, she answered:
A:“Um, because I have gained more weight, um, and the, like, hair and stuff and I don’t like people looking at me, like, there.”
Q:Did you have that sentiment, not wanting people to look at you, before the motor vehicle accident?---
A:Um no.”[136]
[136]T137, L19-23
157The plaintiff confirmed that she was upset about the first report from Dr Elder because he had written “that there was just nothing wrong with me”.[137]
[137]T138, L22-24
158The plaintiff was re-examined in relation to the shaking of her hands and when queried as to when this occurs, the plaintiff stated:
“Um, I think it just comes on, like, when I’m so anxious. I don’t even realise it’s happening sometimes. Um, then it just, like – my body just starts shaking.”[138]
[138]T140, L13-15
159The plaintiff was also cross-examined about rubbing her arms at various times. When queried by the Court as to whether she could say what brought that on, the following evidence was given:
A:“Um, I would say it’s the stress.
Q:Yes. Counsel has made reference to your legs, which I can see the top of your thighs. In relation to any shaking of the legs, as best you can say, when does that come on?---
A:Um, ah, it just (indistinct) I think.
Q:Sorry?---
A:Um, when I.
Q:If you don’t know, say you don’t know, but if you do know, say what you know?---
A:Yeah, I – I don’t know. It just sort of comes out of nowhere.”[139]
[139]T140, L27 – T141, L5
Conclusion
160As I have already recorded, it is for the plaintiff to establish, as a matter of probability, that she suffered an “injury” as a result of a “transport accident” within the meaning of the Act, and that such injury was a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
161In the circumstances of this matter, the plaintiff alleges that “the injury” suffered by her as a result of the transport accident has caused a “severe long term mental or severe long term behavioural disturbance or disorder” as described within s93(17)(c) of the Act.
162Again, as I have already recorded, “serious injury”, as defined in sub-paragraph (c) of s93(17) of the Act requires that the mental or behavioural disturbance or disorder to be “severe” rather than “serious”, as required in sub-paragraph (a) of an organic injury said to be “serious”.
163There is no issue that the plaintiff suffered a “transport accident” on 14 September 2018. Issues arise as to what injury, or injuries, the plaintiff suffered in the transport accident and whether such injury, or injuries, satisfy the requirements of “serious injury” defined in sub-paragraph (c) of the definition of “serious injury”.
164Those acting for the defendant have submitted that the evidence given by the plaintiff in this proceeding is a tissue of lies, and exaggeration and that her evidence should not be relied on, and the application dismissed. Those acting for the plaintiff, although accepting that it is difficult to be precise to determine what is the severe long-term mental or severe long-term behavioural disturbance or disorder suffered by the plaintiff, submit that she has clearly satisfied the requirements of sub-paragraph (c).
165Both parties submitted that the success or otherwise of the application will turn much on the Court’s view of the evidence of the plaintiff.
166Again, as I have already recorded, the plaintiff has been treated by general practitioners, physiotherapists, pain specialists, neurologist, psychologists, neuropsychologists and psychiatrist. Also, there has been an array of medico-legal experts covering a variety of specialties, each of whom have rendered an opinion.
167As is common in serious injury hearings, the plaintiff was the only witness cross-examined, with all other material tendered, including the various reports from both treaters and medico-legal experts and affidavits from the mother and father of the plaintiff. Various diagnoses have been made and perhaps this highlights one of the difficulties in a serious injury application. The lack of cross-examination of medical and like witnesses leaves the Court in a difficult position, moreso when faced with an array of diagnoses.
168Furthermore, the Court is not assisted in coming to any view whether certain conditions – for example fibromyalgia and pain sensitisation – are properly defined as matters falling within sub-paragraph (c) of the definition of “serious injury” or are more appropriately to fall within sub-paragraph (a) of the definition of “serious injury” which, in general terms, relates to “organic” injuries rather than psychiatric or psychological injuries.
169As pointed out by a variety of the doctors, this matter is complex. However, it must be borne in mind that the plaintiff was a twenty-one-year-old woman at the time of the transport accident, and has not performed any work from a short time after the transport accident to date. Leaving aside the various diagnoses made in relation to the plaintiff, each diagnosis in itself makes clear that the plaintiff has suffered pain and suffering consequences and pecuniary loss consequences in a significant way.
170Although not free of difficulty, I am satisfied that, as a matter of probability, the plaintiff has suffered “injury” as a result of the transport accident and such “injury” is a “serious injury” within the meaning of sub-paragraph (c) of the definition of “serious injury” contained in s93(17) of the Act.
171I have come to such conclusion for the following reasons:
(a) In general terms, the plaintiff impressed me as a relatively immature young woman who, to my observation, appeared guileless. Seemingly, she attempted to answer all questions put to her – although sometimes she could not recall certain events or dates. During cross-examination, she accepted that there was an apparent inconsistency in relation to certain events – for example on the one hand, attempting to wash her hands many times a day and, on the other hand, her allegation that water on her skin made the pain she was suffering worse. Furthermore, and in particular, she gave evidence of generalised pain over her body which was in the order of 7/10, and that such pain was being experienced during such cross-examination. On occasion, the plaintiff would smile when giving such evidence and there were no overt signs of the plaintiff experiencing such pain symptoms.
The plaintiff accepted that she does smile and tries not to show her pain but nonetheless experiences it at a reasonable level. Again, in answering these questions, she did not attempt to minimise this issue and gave reasonably straightforward answers when queried about the issue.
The other matter which I consider important is the observation that I made of the plaintiff vigorously rubbing her arms when sitting in the witness box. Her arms were below the level of the witness box, and it was only because I had a side view of the witness box, I was able to notice such actions. When queried about such actions, the plaintiff said she tends to respond that way “when stressed”. Given that I only happened to see the rubbing because of the position I was in, I tend to the view that such vigorous rubbing of the arms is consistent with some form of psychological condition and did not appear to be feigned.
I do accept that the plaintiff may have exaggerated matters on occasion – for example the period of time that she was unconscious – if she was unconscious at the time of the transport accident. This varied from a very short time up to fifteen minutes in various histories given to doctors. I do accept that there was an element on the part of the plaintiff to reinforce the severity of her condition by some degree of exaggeration (whether that be at a conscious or unconscious level). However, that of course does not necessarily mean the plaintiff does not suffer from a genuine psychological condition. I should add that having read all the material and observing the plaintiff, I do consider that she has had a significant psychological reaction related to the transport accident;
(b) I do find that, prior to the transport accident, consistent with the evidence of both her mother and father (which was not challenged),[140] the plaintiff was a “very outgoing, bubbly personality” and a “very active girl” who would regularly go out with friends “walking, dancing and having fun” and at that time, she had a large group of friends who would do activities together. The evidence of her father described the plaintiff prior to the transport accident as “energetic, talkative, motivated and active”, having a large number of friends and going out nightclubbing with them to restaurants and to movies.
[140]See affidavit of Silva Obeid (the mother of the plaintiff) sworn on 17 February 2022 at pages 33-36 PCB and the affidavit of Taleb Obeid (the father of the plaintiff) sworn on 17 February 2022 at pages 37-40 PCB
Prior to the transport accident, the plaintiff was in a relationship with a boyfriend who ultimately became her fiancé.
I accept such evidence;
(c) I also find that on leaving school, the plaintiff completed her diploma of childhood education and at the time of the transport accident, was working as a childhood educator, having been employed in that role for about two years – although this encompasses two periods of employment, the last being for a few months leading up to the transport accident. Again, I refer to the affidavit of her father that the plaintiff was always very interested in working with children and liked her job and childcare which involved looking after children. He also noted that in secondary school, she was motivated enough to undertake a Certificate II at Box Hill TAFE in Child Services to enable her to begin caring for children before finishing school;
(d) I also find that, prior to the transport accident, the plaintiff was enjoying generally good health. In this respect, in her affidavit, the plaintiff recorded having a couple of minor panic attacks in September 2016 and although seeing her general practitioner, needed no ongoing treatment or medication. Furthermore, she deposes that in January 2018, she had minor neck pain and that resolved without any treatment or medication.
During cross-examination, the plaintiff accepted that she consulted a Dr Davis on 22 September 2014 seeking special consideration because of anxiety in her VCE year, which she believed was never given.[141] Further, she was cross-examined about the panic attacks which caused her to attend Dr Abdelmalak on 28 September 2016 arising out of employment matters at that time.[142] The plaintiff believes that such employment came to an end in 2018, after which she commenced further childcare employment where she was engaged at the time of the transport accident.
Consistent with the consensus of medical practitioners, I do not consider that the plaintiff had any significant psychological or physical issues, prior to the transport accident and, at best, the events to which the Court was drawn could only be described as minor issues;
(e) It has been suggested by several doctors that the plaintiff had a pre-existing vulnerability as a result of experiencing her mother’s physical and mental condition over the years leading up to the transport accident. For example I refer to the opinion of Dr Strauss set out in his report dated 13 October 2021, that –
“She was a relatively immature, young, vulnerable woman when she experienced her accident in 2018 and I suspect that her reaction to the accident has been partly determined by her relationship with her mother. I am not stating that … [the plaintiff’s] behaviour has been consciously derived but rather she has reacted to the effects of her own accident in a way that has been unconsciously determined by her own mother’s situation.”[143]
[141]See generally T91, L19 – T92, L14
[142]See T93, L18 – T94, L4
[143]See exhibit 1, report of Dr Strauss dated 13 October 2021, at page 257 PCB
Some other doctors have also suggested a similar vulnerability. I do not make any express finding in relation to this issue but do comment that in the event that Dr Strauss is right in his opinion about such vulnerability, I consider such a factor does not alter the situation other than the obvious, that the plaintiff is vulnerable to psychological injury.
172Accordingly, I consider that leading into the transport accident, the plaintiff was pursuing the life of a normal twenty-one-year-old, with no particular pre-existing organic injuries or psychological problems. Furthermore, she was pursuing work which she had wished to do for many years and although she had some difficulties during the course of her employment preceding her last employment, she was enjoying her work at and around the time of the transport accident. Part and parcel of this, she was also in a relationship with her boyfriend and had a variety of friends.
173I now turn to the circumstances of the transport accident and make the following findings:
(a) There is no issue that the plaintiff was a “seat-belted” driver of a vehicle involved in a “concertina” collision with four other vehicles. She was driving on the South Gippsland Highway near Hallam when she was “rear-ended”, pushing her vehicle into the vehicle in front. Her vehicle was badly damaged[144] and written off after the accident;[145]
(b) I also refer to the ambulance report dated 14 September 2018[146] wherein, under the heading “Description”, it is recorded, in part, that the vehicle driven by the plaintiff was stationary, when a car travelling at approximately 50 kilometres per hour rear ended her, causing the car of the plaintiff to be pushed to the other side of the road. Under cross-examination, the plaintiff denied that it was she who gave the estimation of 50 kilometres per hour.
Consistent with the tendered photographs, I do find that the vehicle which struck the plaintiff’s vehicle was travelling at some speed and the approximate speed of 50 kilometres per hour does not seem unreasonable.
In all the circumstances, I consider that such a transport accident would have been very frightening and distressing to the plaintiff;
(c) After a consideration of all of the evidence, I consider that other than some short-lived soft-tissue injuries following the transport accident, the plaintiff has not suffered any significant organic injuries and, in particular, no organic injuries to her neck or low back.
In this respect, I refer to the two reports of the occupational physician, Dr David Elder, who examined the plaintiff on 30 June 2020 and on 18 January 2022 (approximately one month prior to the hearing of the serious injury application). On both occasions, Dr Elder was of the opinion that the plaintiff may well have suffered soft-tissue injuries to the spine at the time of the transport accident but her presentation at the time of his examination suggested some sort of “pain presentation”. In particular, there was a good range of movement of both the neck and the back, no evidence of radiculopathy, with sensation of reflexes being completely normal.
I also refer to the report of the neurosurgeon, Mr Chris Xenos, who seemingly examined the plaintiff on 20 November 2018.[147] He came to the view that at best, the symptoms suffered by the plaintiff at that stage would be due to pain and muscle spasm, with no good evidence of any compressive lesion in the low back or the neck.
To the extent that the evidence of the neurosurgeon, Mr Bittar, who examined the plaintiff on 28 November 2019[148] and on 11 October 2021,[149] suggests that the plaintiff has suffered a “probable cervical spine whiplash injury” and a “non-specific injury to her lumbar spine”, I reject such opinion, if it be that, that the plaintiff has ongoing organic injuries to those parts of the body;
(d) In particular, I also reject any suggestion that the plaintiff had any brain injury at the time of the transport accident or if I be wrong about that, any such injury has been long been healed consistent with the radiological evidence.
[144]See various photographs of the damaged vehicle – exhibit 1 at pages 267-269 PCB
[145]See letter from RACV dated 25 September 2019 – exhibit 1 at pages 265-266 PCB
[146]See such report found at pages 180-183 PCB
[147]See such report dated 20 November 2018, at pages 76-77 PCB
[148]See report of Professor Bittar dated 28 November 2019, at pages 232-240 PCB
[149]See report of Professor Bittar dated 11 October 2021, at pages 241-247 PCB
174Again, after a consideration of all of the evidence, I accept the opinion of the treating psychiatrist, Dr Vadasseri. Dr Vadasseri commenced consulting with the plaintiff on 28 September 2020 and thereafter, saw the plaintiff at least monthly over the balance of 2020, 2021 and into 2022, with her last examination before the commencement of the hearing on 22 February 2022 being on 2 February 2022.
175Dr Vadasseri diagnosed the plaintiff to be suffering from PTSD with psychotic symptoms, Major Depressive Disorder, Obsessive Compulsive Disorder and a worsening of a Tobacco Use Disorder, all of which she relates to the transport accident on 14 September 2018.
176Dr Vadasseri considers that the Major Depressive Disorder which she has diagnosed the plaintiff to be suffering has resulted in fatigue, poor energy levels, poor motivation, poor concentration and memory.
177Over the course of her treatment, the plaintiff has given histories consistent with her alleging pain throughout the various parts of her body and symptoms which can be explained by the diagnosis of PTSD.
178I have come to such a view for the following reasons:
(a) Dr Vadasseri has seen the plaintiff on a regular basis since 28 September 2020, and throughout the period of her treatment has had the opportunity to observe the plaintiff over that period of time;
(b) Furthermore, the opinion expressed by Dr Vadasseri is similar to the opinion expressed by a further psychiatrist, Associate Professor Damodaran, who examined the plaintiff on or about 3 February 2022 and ultimately formed a diagnosis that the plaintiff was suffering from a PTSD, Adjustment Disorder not otherwise specified, which includes a combination of anxiety, depression, obsessive symptoms along with dissociative symptoms and also conversion symptoms, along with a Chronic Pain Disorder associated with a general medical condition. Similarly, the medico-legal psychiatrist, Dr Strauss, who consulted with the plaintiff on or about 13 October 2021 and made the diagnosis of the plaintiff suffering from a PTSD, together with a Chronic Adjustment Disorder and Somatic Symptom Disorder (that is physical symptoms psychologically derived). Dr Strauss also refers to the plaintiff’s emotional state being quite “labile with an element of attention seeking in her behaviour”;
(c) Also, it is to be noted that Dr Vadasseri viewed the surveillance footage undertaken on 9 January 2021, which she summarised, and states, in part:
“This video footage doesn’t contradict the reported history of symptoms or mental state findings that I have on record.
…
The footage viewed is not contradictory to any of the diagnoses I have provided for Ms. Hannan Obeid. The material in the video footage does not alter my opinions expressed in this or any of my previous reports. The diagnoses and conclusions essentially remain the same.”[150]
[150]See exhibit 1, report of Dr Vadasseri dated 8 February 2022 at pages 179 PCB
179In her report, Dr Vadasseri notes that she is of the opinion that the psychological/psychiatric injuries suffered by the plaintiff have impacted significantly on her day-to-day activities and that such injuries also cause her to be unfit for any suitable employment. Furthermore, she considered the plaintiff’s prognosis to be poor, noting that the transport accident occurred on 14 September 2018 and the plaintiff continues to be symptomatic with her psychiatric disorders and has ongoing pain. I consider such consequences to be “severe”.
180In all of the circumstances, I am satisfied that the plaintiff has discharged her onus in relation to establishing a “serious injury” within the meaning of s93(17) of the Act and, accordingly, I grant her leave to bring common law proceedings to recover damages for injury arising out of a transport accident occurring on 14 September 2018.
181I will hear the parties on the question of costs.
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