Ostojic v TAC
[2013] VCC 1814
•29 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-11-03383
| CVIJETA OSTOJIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-3 October 2013 | |
DATE OF JUDGMENT: | 29 November 2013 | |
CASE MAY BE CITED AS: | Ostojic v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1814 | |
REASONS FOR JUDGMENT
---
Subject: Serious Injury Transport Accident Act 1986 s93(4)(d) s93(17)(a) serious long-tern impairment or loss of function of spine and s 93(17)(c) severe long-term mental or severe long-term behavioural disturbance or disorder
Catchwords: Accident compensation - serious injury – whether serious long-term impairment or loss of body function - aggravation of lumbar spine.
Accident compensation – serious injury – whether severe long-term mental or severe long-term behavioural disturbance or disorder.
Legislation Cited: Transport Accident Act 1986.
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 V R 436; Richard and Anor v Wylie (2000) 1 VR 79.
Judgment: Leave granted pursuant to section 93(4)(d) Transport Accident Act 1986 for the plaintiff to recover damages at common law for a serious injury to the lumbar spine. Leave refused to recover damages at common law for serious injury in the form of mental disturbance or disorder pursuant to section 93(17)(c) Transport Accident Act 1986.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley with Mr A D Newman | T Conboy |
| For the Defendant | Mr R P Gorton QC with Ms R J Boyce | J Letten |
HER HONOUR:
Introduction
The Application
1 This is an application by the plaintiff pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for leave to commence proceedings to recover damages for injuries suffered in a motor vehicle accident on 29 April 2005 (“the accident”).
2 Section 93(6) of the Act provides that a court must not grant leave under section 93(40)(d) unless it is satisfied that the injury meets the definition of being a “serious injury”. Section 93(17) contains the definition of serious injury, which relevantly includes:
(a) a serious long-term impairment or loss of body function; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.
3 Within the meaning of paragraph (a), the plaintiff alleges that she suffered a serious long-term impairment or loss of body function of her lumbar spine.
4 With respect to paragraph (c), the plaintiff alleges that she suffered a severe long-term behavioural disturbance or disorder involving post-traumatic disorder, anxiety and depression and general anxiety in relation to crossing roads. In addition, a possible chronic pain syndrome or disorder.
Issues in the case
5 The defendant denies that the plaintiff’s present physical and mental condition is as a result of the accident. The defendant’s case is that the plaintiff had both a pre-existing degenerative back condition and behavioural disturbance or disorder. Alternatively, the defendant submits that if any physical injury or behavioural disturbance or disorder was caused/contributed to by the accident, such contribution has ceased, and neither her physical or psychological condition meet the required threshold.
6 There were six witnesses who gave evidence at the hearing. The plaintiff, her husband Cvijeta, her daughter, Vesna Carter and her two treating general practitioners, Dr Alan Lim and Dr Lawrence Woo.
Background
7 The plaintiff’s background history was set out in two affidavits dated 16 December 2010 (“the first affidavit”) and 2 October 2012 (“the second affidavit”). She is 67 years old, having been born in Bosnia on 18 July 1946.
8 The plaintiff completed the equivalent of Year 12 in Bosnia and then undertook further studies at TAFE for three years. After completing Year 12, she commenced employment as a sales assistant at a local warehouse where she worked for three years
9 The plaintiff migrated to Australia in 1971 when she was 25. After arriving in Australia, she found work with Vulcan Heating in Burwood as a process worker, working seven days a week for two years. She married in 1997 and has two children born in 1968 and 1981.
10 When the family moved to Collingwood the plaintiff worked at the Freemasons Hostel full-time as a waitress for approximately 10 years. She also had a second job, working again as a waitress at a local restaurant in Springvale.
11 The plaintiff left the Freemason’s Hostel job in 1980 before the birth of her second child. Six weeks after her daughter was born, her husband had an industrial accident which resulted in the plaintiff returning to work. This was at Bosch in Clayton where she worked as a process worker and machine operator for five years.
The injury at Bosch in 1985
12 In 1985 the plaintiff sustained injuries to her neck and back in a work accident when she fell backwards on a pallet, injuring herself. She was off work for a period and received a payout for her injuries from Work Cover.
13 In May 1990 the plaintiff returned to work at a muffler factory called Pipe and Exhaust as a process worker. [1]. In cross-examination she agreed that she had a car accident around that time, either going to work or coming back.[2] However, she could not remember an incident on 2 August 1990, where had been taken to hospital in an ambulance after collapsing at work. [3] She also could not remember being treated by the psychiatrist, Dr Chong at this time.[4]
[1]T36.
[2]T37.
[3]T37,T38-39.
[4]T40.
14 While the plaintiff also could not remember whether she suffered from back pain when working at Pipe and Exhaust, she agreed that she was working in a “heavy job”. However, she denied seeing any doctors during this time and could not recall taking any time off work due to problems with her neck and back.[5]
[5]T85.
15 In late 1990, the plaintiff returned home to Bosnia. Her husband and daughter went ahead of her as the family intended to resettle there. They took all their money with the intention of building a home and starting a new life. However, there were some marital difficulties in Bosnia and her husband left and returned to Australia.
16 The plaintiff believed that she did not return to Australia until 1995, but she agreed in cross-examination that on 8 September 1994, she was treated in Dandenong Hospital for ovary cysts. She also agreed that in November 1994 she was treated for depression with Prozac. The plaintiff’s explanation for this treatment was that she had separated from her husband and moved into a unit with her daughter. As they had “nothing” and had to start again she became depressed.[6]
[6]T42.
The Accident
17 On 29 April 2005, when the plaintiff was attempting to cross the road with a green light at the intersection of Hallam road and Coral drive at Hampton Park she was struck by a car. The plaintiff claims that as a result of the impact she sustained injuries to her back, left hip and to her right knee.
18 An ambulance was called and the plaintiff was taken to Dandenong hospital where X-rays were taken which returned normal findings. While the plaintiff claims that after the accident she suffered back pain straight away and that she complained about it in hospital,[7] the ambulance report from the Dandenong Hospital dated 29 April 2009 noted that:
“Patient complained of five out of ten pain in left leg between the hip and the knee, no visible deformity injury, no loss of movement, no crepitus, left equals right motor control strength”, -No neck/back pain and altered sensations.”[8]
[7]T60.
[8]CB 54.
19 The day after the accident the plaintiff attended her then general practitioner, Dr Lim. Dr Lim’s notes of that day do not mention back pain. He recorded “Car accident yesterday, hurt left knee joint, no fracture, resting and bandage”. In his report of 15 January 2010, Dr Lim gave a history that the plaintiff complained of severe pain in her left knee, and that joint x-ray imaging investigations taken at the hospital excluded bony fracture and major joint lesions.
20 Dr Lim reported that the plaintiff’s pain worsened in the next few days and that there was marked tenderness in the lateral ligament of her left knee joint. When he saw her on 3 May 2005 the plaintiff could only walk with a pair of crutches. His notes of that day recorded that she had “post-motor car accident pain in the left lateral ligament of the knee joint” and that she was, “Given Celebrex and organise for chiro treatment in three days.”
21 When the plaintiff was cross-examined about the fact that Dr Lim’s notes did not record her making any complaints of back pain on these two visits, she claimed that she had told him when she first saw him after the accident that her back pain had been made worse by the car accident.[9]
[9]T 62.
22 The plaintiff next attended Dr Lim on 17 May 2005, some three weeks after the accident. His notes recorded “Pain in left leg, feeling better, walking without crutches or stick now”. They also referred to the plaintiff developing anxiety, insomnia, having difficulty sleeping, and when walking across the street, feeling very anxious and becoming depressed. However, once again, there was no mention of back pain.
23 When Dr Lim was cross-examined about the absence of any reference to back pain in his notes he believed that this could have been because “they were concentrating on the most important pain”, being at the time to the plaintiff’s knee.[10] Dr Lim was adamant that he would not have referred the plaintiff to a chiropractor unless there was a complaint of back pain. He considered that his notation on 3 May 2005 to send her to a chiropractor in three days implied very strongly that she must have severe back pain”.[11]
[10]T146,151,152.
[11]T148.
24 There is support for Dr Lim in the TAC Chiropractic Treatment Questionnaire dated 20 January 2006, in that on 6 May 2005, 2 September 2005, 5 February 2005 and 20 January 2006 the plaintiff received treatment for “LBM strain/neck, shoulder muscle strain/knee ligament/tendon injuries.” This treatment included “Spinal adjustment of the neck, MTLB, knee joint manipulation, electrical muscle stimulant and Ultrasound adjustment”.[12]
[12]CB 120.
25 On 5 May 2005, Dr Lim helped the plaintiff with her TAC claim in relation to the accident. When the plaintiff was cross-examined she agreed that the only injuries from the accident listed in the claim form were “shoulder, arm, injury to the leg on the left side, abdominal pain” and that there was no mention of a back injury. [13]When Dr Lim was cross-examined about the failure to mention a back injury his response was that he had the feeling that it might have been overlooked or the patient did not complain of severe pain.[14]
[13]T67.
[14]T150.
26 As the plaintiff’s mental health was deteriorating in June 2005, Dr Lim referred the plaintiff to Dr Anthony Cumming, a psychologist, for counselling. Dr Cumming, arranged for her to have exposure therapy at traffic lights. This treatment involved him assisting her to walk across the street.
27 During this period the plaintiff was experiencing lower back pain and pain over the left hip. She also had pain over her left knee, which was initially very severe. She continued attending her general practitioner for treatment, having physiotherapy and seeing a psychologist.
28 Due to ongoing pain and numbness, particularly down her left side, the plaintiff was then referred to Dr Yew Ming Kuan, a vascular surgeon whom she saw in May 2007. Then in July 2007, after a significant episode of back pain, Dr Woo referred her to Dr Clayton Thomas. On 19 June 2008, as a result of severe lower back pain and left sciatic pain, she was referred to the Emergency Department of the Dandenong Hospital.
29 By this stage the plaintiff was declining psychologically, and becoming very depressed. She was suffering from a lot of pain in her lower back and left hip and into her lower limbs. She was suffering nightmares about the accident and was unable to walk across the street by herself or drive a car.
30 While the plaintiff continued to have physiotherapy and hydrotherapy sessions on a weekly basis, this treatment was without much long-term benefit. She was also taking significant doses of medication, but was not improving.
31 In 2008, the plaintiff moved house and she returned to Dr Woo as her general practitioner. He referred her to Dr Terry Chong, psychiatrist, whom she first saw on or about 3 October 2008. Dr Woo also referred the plaintiff Dr Andrew Muir, a pain specialist, whom she first saw in or about 2008. Dr Muir arranged for her to have injections every six months into her left hip and lower back which helped, as she was able to reduce some of the medication she was taking.
32 In 2009, the plaintiff was diagnosed with breast cancer and had nodules removed in August 2009. She had radiotherapy for 25 days after that. When she was reviewed in August 2010, she was clear of cancer. While the diagnosis of cancer increased her depression, the plaintiff believes she has now recovered from any effects arising from the cancer.
33 In 2010, the plaintiff commenced seeing Ms Catherine Chan Kwa, a psychologist. When the TAC ceased paying for psychological treatment she continued to see Ms Kwa through Medicare. The same year she suffered from chest pains and had difficulty breathing which heightened her anxiety.
34 On 28 April 2012 the plaintiff suffered a stroke. She was taken to Dandenong Hospital where she remained for nine days. The stroke affected her speech for a while but she regained her speech and luckily there are no residual effects of the stoke.
35 In April 2013, the plaintiff experienced an increase of symptoms in relation to her lumbar spine. Consequently Dr Woo arranged for a CT scan which took place on 19 April 2013. This scan revealed L4/5 and L5/SI disc degeneration. At L4/5 there was a broad based posterior disc bulge and hypertrophy of the ligaments flavae. Both the L5 nerve roots were involved.[15]
[15]CB68.
36 The plaintiff is on the invalid pension. When he was cross-examined concerning this Dr Woo’s evidence was that this indicated that she is not employable and not able to maintain work.[16]At present Dr Woo continues to see the plaintiff on a fortnightly basis, and he referred the plaintiff for physiotherapy and acupuncture treatment in April 2013.The plaintiff also continues to see Dr Chong and Ms Chan Kwa.
[16]T128.
37 Medical reports regarding the plaintiff’s back injury
Dr Lim
38 Dr Alan Lim took over the plaintiff’s treatment on 14 January 2005 and treated her until 23 June 2008. On 15 January 2010 he reported to the plaintiff’s solicitors that her primary complaint at the time was osteoarthritis and chronic back pain related to a motor vehicle accident in 1985.
39 The history of the plaintiff’s attendances with Dr Lim shortly after the accident has been set on in the section of this judgment headed background. In his report, Dr Lim concluded that in the later part of 2008 she had two distinct but related problems as follows:
· “One of them was her physical condition, with intimate severe pain of her back and left knee joint. This included neuropathic pain and coldness in her lower limbs. These conditions were directly related to her accident on 14 January 2003, albeit that she did have some minor osteoarthritic discomfort in her low back prior to the accident.
· The second and more prominent problem is the post-traumatic stress syndrome that includes phobia, depression and anxiety. This latter has constituted a large part of her disability and has been managed by Dr Cumming”.
With respect to the plaintiff’s prior back condition before the accident Dr Lim gave evidence that in his experience “low back pain and spinal cord sort of pain can be similarly aggravated by an accident, a fall or in a collision sort of accident, so it was very likely that the level of pain had increased to more severe than what it had been before because of the accident.”[17]
[17]T139,160,172.
Dr Clayton Thomas
40 Dr Thomas’s report is dated 31 August 2009. When he assessed the plaintiff on 5 July 2009 he formed the following impressions:
(i) she was suffering from symptomatic spondylitis of her lumbar spine;
(ii) there was probably not much that could be done to assist her. He was not convinced that rehabilitation would have positive yield;
(iii) she was keen to pursue the possibility of intervention to her lumbar spine by way of injections. He was not convinced that would be a reasonable way to proceed.
41 Dr Thomas accepted that the accident on 29 April 2005 aggravated the plaintiff’s lower back and led to the onset of pain from this area. The injuries were consistent with the stated cause. He thought it was likely she would have continued pain and disability arising from her lower back.
Dr Muir
42 In the report of 22 September 2009, Dr Muir believed that the plaintiff was suffering from non-specific low back pain, likely the sacroiliac joint or left lumbar facet joints. She also had elements of chronic pain syndrome. Her injuries were consistent with the stated cause.
Dr Woo, GP
43 Dr Woo, who provided the plaintiff’s solicitors with five reports, has been treating the plaintiff for about 30 years. In his report of 31 July 2011, he gave a history of the plaintiff continuing to complain of constant low back pain and moderate to severe depression, both of which had got worse since the car accident.
44 In his opinion the plaintiff had suffered an aggravation of her lumbar spondylosis and facet joint arthritis, post traumatic anxiety neurosis with panic attacks and moderate to severe depression as a direct result of the car accident. The injuries would not have occurred if she was not involved in the accident .[18]
[18]CB 61.
45 On 6 May 2013 Mr Woo reported that
“Since the last report in 2012 the plaintiff’s condition has remained the same. She continued to complain of constant moderate to severe low back pain with pain radiation down to her left buttock and hip and moderate to severe depression. Both these symptoms have got worse since the car accident. The back pain is there all the time with varying intensity.”
and that
“She has been feeling very depressed most of the time. She would cry without any reason. She has been feeling very anxious with sleep disturbance. She has been taking Cmybalta 60 mg daily and seeing Dr Terry Chong, the psychiatrist and Ms Catherine Chan the psychiatrist”.[19]
[19]CB 65.
46 When he gave evidence, Mr Woo confirmed his opinion that the plaintiff was suffering from aggravation of the facet joint arthritis and that this aggravation was caused by the car accident. In addition, as a direct result of the car accident, she also suffered post traumatic anxiety neurosis with panic attacks and moderate to severe depression.[20]
[20]T101.
47 Dr Woo accepted that the plaintiff had a prior history of back pain but gave evidence that he believed her symptoms had got a lot worse from when he had last seen her in November 2004 (before the accident) to when he saw her again in July 2008 (after the accident).[21]
[21]T133.
48 When cross-examined, Dr Woo accepted that the CT scan of 14 July 2008 revealed disc deterioration and facet joint deterioration causing low back pain and sciatica and that the plaintiff had presented with these symptoms before the accident.[22] However, when he was re-examined he said that the finding in 2008 was very severe and he would be surprised if it was the same in 2004.[23]
[22]T 119.
[23]T133.
Mark Ebeil Physiotherapist
49 Mr Ebeibl reported on 4 February 2010 that the plaintiff presented for physiotherapy on 20 September 2005, following a motorcar accident when she was a pedestrian and hit by a car. She sustained left leg bruising, and her lumbar spine was aggravated. She described her symptoms following the accident as being “central low lumbar spine extending down her left buttock into the posterolateral thigh region”.[24]
[24]CB 125.
50 The diagnosis was L4‑5, L5‑S1, disc derangement and lumbar degeneration, and he stated that:
“From my assessment and treatment over a long period of it is evident that Mrs Ostojic sustained her injuries during the motor vehicle accident. It must be noted she did have degeneration prior to the accident and did have an episode of back pain a few years prior to the accident that resolved and gave her no ongoing problems.”[25]
[25]CB 126.
Mr Rodney Simm Orthopaedic Surgeon
51 In Mr Simm’s opinion, as result of the accident on 29 April 2005, the plaintiff:
“Suffered a soft tissue injury to the left knee, bruising around the left hip and back, and an aggravation of her pre-existing lumbar spondylitis. She has no residual hip symptoms or left knee symptoms. She has experienced severe and persistent lumbar back pain consistent with unresolved aggravation of degenerative lumbar pathology”.[26]
[26]CB179.
52 On 17 July 2012, Mr Simm reported that the plaintiff’s condition had not changed significantly since he last examined her on 17 August 2010. She continued to suffer from pain which fluctuated in intensity. Mr Simm also reported that there was “no elaboration of physical signs” when he examined the plaintiff and described her as presenting “in a straightforward and confident manner”.[27]
[27]CB 183.
53 On 23 July 2013, Mr Simm reported that the plaintiff’s condition had not changed since he last examined her on 12 July 2012. His opinion remained that the plaintiff’s lower back injury was associated with the unresolved aggravation of her pre-existing advanced degenerative lumbar spondylosis.
54 Mr Simm disagreed with Dr Kenna’s opinion that the effects of the aggravation of the accident had resolved. In Mr Simm’s opinion, permanent aggravation of degenerative lumbar spondylosis is commonly encountered, and the concept that previously compromised degenerative structures could be further injured in the accident, leading to irreversible changes and permanent increase in the plaintiff’s symptoms, was medically and pathologically sound.[28]
[28]CB 191.
55 In the opinion section of his report Mr Simms said:
“In simple terms, there was a marked exacerbation of symptoms from her degenerative lumbar pathology as a result of the accident. There has been no period of recovery from the time of the accident until the present time. I agree that there are features of chronic pain in this case, and non-organic and/or psychological factors may be contributing to the pain and disability. However, the pathology is severe, advanced, degenerative pathology in the L4‑5 and L5‑S1 level. The pathology would certain be responsible for chronic disabling pain as described by your client.” [29]
[29]CB 191.
Dr Clive Kenna Consultant in Musculoskeletal Pain Management
56 In his report of 1 July 2007 Dr Kenna described the plaintiff as having sustained soft tissue injuries to her left shoulder and arm, left leg, abdominal and lower back in the car accident on 29 April 2005.
57 However, in his opinion, any initial soft tissue injuries or aggravations had ceased and the plaintiff’s current clinical problems related to age-related degenerative changes. There was also some degree of psychological impact superimposed on her presentation.[30]
[30]CB 239.
58 In his report of 20 December 2010 Dr Kenna stated that:
“I do not believe that her current symptoms were attributable to the motor accident per se. One needs to note she has substantial pre-existing unrelated conditions which affect her current clinical presentation and also substantial psychological issues.”[31]
[31]CB 247.
59 In his most recent report of 13 August 2013, Dr Kenna maintained his opinion that the plaintiff is no longer suffering from physical injuries directly sustained in the motor vehicle accident. While he accepted that there may have been some degree of aggravation, he considered that at this point in time those injuries have since resolved.
60 In his opinion, the plaintiff’s current clinical condition was related to her pre-existent condition, spondylitic change, and her relevant prior employment history. In association with this she had developed a chronic pain-type syndrome.
61 Mr Kenna stated that
“Frankly the overall prognosis I believe is good. There is very much an illness modification /sick role behaviour that she has adopted and that was evidenced from the start. Hence while she complains of pain, she is mobile and active, gets around. Hence there is a considerable degree of dichotomy between the stated level of symptoms and overall level of acknowledged activity. It is highlighted by the fact that she is able to walk two to three kilometres.”[32]
[32]CB 274.
Radiology
62 The conclusion of the earliest CT scan (9 February 1986) report in the court book was:
“Mild lumbar spondylosis with mild facetal degenerative change, and no focal disc protrusion detected”.[33]
[33]CB 29.
63 The diagnostic report of 26 September 2005 referred to:
“Lumbosacral spine, lumbar curvature convex to the left centred on L3 vertebral body, osteo lipping of the lumbar vertebral margins, moderate spondylitis noted. There is disc narrowing between L4‑5 and L1‑2 vertebral bodies.”
64 The report on the lumbosacral spine of 11 February 2008 revealed as follows:
“Lumbosacral spine, posterior alignment of vertebral body satisfactory, disc degenerative change present at both L4‑5 and L5‑S1, with minor L1‑2 disc degeneration also seen. There is a subtle scoliosis to the lumbar spine concave to the right. Degenerative changes affect the synovial portion of the sacroiliac joint”. [34]
[34]CB 30.
65 The conclusion in the report of the CT scan of the lumbar spine of 14 July 2008, was:
“L4‑5 central spinal canal stenosis, facet joint arthropathy and disc degeneration at L4‑5 and L5‑S1 levels.”[35]
[35]CB 31.
66 The report of January 2007 stated that:
“Left thoracolumbar scoliosis is concerned, disc space narrowing L1‑2, L4‑5 and to a lesser extent at L3‑4 level. There is associated spondylitis at disc space margins. Sacroiliac joints are normal in alignment.”[36]
[36]CB33.
Medical reports regarding Plaintiff’s Mental Health
Dr Cumming Clinical psychologist
67 There are two reports[37] from Dr Anthony Cumming who used exposure therapy to assist the plaintiff with her problems in crossing at traffic lights after the accident. In his report of 6 June 2011, Dr Cumming’s diagnosis was that the plaintiff’s clinical disorders were:
[37]PCB69-101, 19 March 2008 and 6 June 2011.
· major depressive disorder;
· post-traumatic stress disorder;
· generalised anxiety disorder, and
· pain disorder.
68 The plaintiff’s prognosis was that she would always suffer anxiety-related symptoms from any symptom reactivations associated with the original trauma.
Dr Terry Chong Psychiatrist
69 Dr Chong treated the plaintiff for depression and phobia driving a car and crossing the road.
70 In his report of 27 October 2009, Dr Chong diagnosed the plaintiff as suffering from depression and phobia (driving a car / crossing the road) and generalised anxiety associated with her recently diagnosed breast cancer. Dr Chong was of the opinion that the plaintiff’s depression and phobia were consistent with the stated cause (the accident). The prognosis was that her condition was likely to continue with fluctuations.
71 In the three following reports, Dr Chong reported on the plaintiff’s progress under treatment as follows:
· 18 April 2011 her depression was in remission but that she still had mild anxiety and phobia driving a car. The prognosis was good as the plaintiff ‘s mental condition had improved since his last report.
· 21 May 2012 her progress was fair and the prognosis remained good despite having a stroke, which could be an aggravating factor for her mental condition.
· 19 April 2013 her prognosis was guarded as she had not been so well lately due to deteriorating back and leg pain.
72 In his most recent report of 27 September 2013,[38] Dr Chong was of the opinion that the plaintiff was likely to experience her current symptoms of depression with some fluctuation permanently. Her fear of driving a car without having behaviour treatment was also likely to be permanent. She was also likely to experience suicidal thoughts in the future when she was under stress or in severe pain.
[38]PCB114A.
Catherine Chan Kwa, Psychologist
73 Ms Chan Kwa first treated the plaintiff on 7 November 2010 and continues to treat her today.
74 In her report, of 28 October 2011, Ms Chan-Kwa diagnosed the plaintiff as suffering from severe depression, extremely severe anxiety and moderate stress.[39] In her report of 16 May 2013, Ms Chan-Kwa stated that the plaintiff “continues to present with depressive anxiety and stress symptoms. They had explored these issues based on the Cognitive Behaviour Therapy and Family Therapy frameworks.”
[39]CB 115.
75 In Ms Chan-Kwa’s opinion, the plaintiff’s mental health condition had been significantly affected by the accident. The topics covered in counselling had included the plaintiff’s nightmares surrounding accident, anxiety symptoms which occurred when she was around roads and traffic, a persistent feeling of tiredness, sleep difficulties, and pain management, all of which arose from the accident in 2005.[40]
[40]CB 119A.
Dr Nigel Strauss, Consultant and Occupational Psychiatrist
76 In his report dated 17 July 2012, Dr Strauss diagnosed the plaintiff as suffering from chronic adjustment disorder with mixed anxiety, depressed mood and evidence of traumatisation. In his opinion her post traumatic stress symptoms were a result of the accident and her anxiety and depression were at least in part a result of the accident in 2005.
77 Dr Strauss was of the opinion that the plaintiff would never work again her incapacity being partially contributed to by the accident. The accident was having a deleterious effect upon her social, domestic and recreational activities and she would continue to suffer from psychological problems indefinitely.[41]
[41]CB 202.
78 In his report of 4 June 2013, Dr Strauss was of the opinion that the plaintiff was still suffering from significant psychiatric problems as a result of the accident, although other factors were also contributing to her psychiatric distress. Dr Strauss did not believe that the plaintiff was deliberately or consciously over-exaggerating her problems and he believed that her incapacity for activities was because of her chronic pain, which was at least partially psychologically based.
Dr David Weissman
79 Dr Weissman diagnosed the plaintiff as suffering from:
(i) a chronic adjustment disorder with depressed and anxious mood/chronic dysthymia, pre-existing, but aggravated by the transport accident;
(ii) a post-traumatic stress syndrome, not a full blown stress disorder, which was caused by the transport accident; and
(iii) a chronic pain disorder, pre-existing, but aggravated by the transport accident.[42]
[42]CB1 39.
80 In summary his opinion was that :
(i) she was most probably suffering from at least mild to moderate pre-existing psychiatric, psychological, emotional and behavioural symptoms immediately before and at the time of the accident;
(ii) she found it very difficult to cope and adjust to the accident and its consequences and there had been at least a moderate psychiatric psychological ,emotional and behavioural decline ,deterioration and decompression since the accident;
(iii) her level of functioning and quality of life was somewhere between fair and fairly good, but certainly not poor. Some of this contribution is pre-existing, unrelated to the transport accident, and some of this is accident-related; and
(iv) the aggravation of her overall psychiatric state since the transport accident has meant she now requires longstanding long-term psychiatric, psychological or psychotropic treatment or an intervention.
81 Overall she is suffering from close to a mild/moderate group of psychiatric conditions and mental injuries half of this is due to a combination of pre-existing and unrelated factors, and half of this is due to accident-related factors.
82 Even had the transport accident not occurred, she would still be totally incapacitated for all work at the current time, given a whole range of pre-existing and unrelated factors, including but not limited to her advancing age, chronic medical problems and pre-existing depression, anxiety and stress.
Dr Timothy Entwisle, Consultant Psychiatrist
83 In first report of 26 February 2008, Dr Entwisle diagnosed the plaintiff as having an adjustment disorder with anxiety and features of traumatisation. He noted that she had a pre-existing history of Major Depressive Illness but considered that her present symptoms could in part be attributed to the motor vehicle accident.[43]
[43]CB 216.
84 In his report of 21 June 2010 Mr Entwisle said that:
“There remains some connection with Mrs Ostojic’s experience of the accident. This occurs amongst a plethora of other issues both past and present, the most salient of which recently had been her unsuccessful trip to Europe and surgery for breast cancer last year”
and that:
“Given Mrs Ostojic’s experience of pain, her current psychosocial circumstances and pre-existing tendencies towards emotional liability and intensity, Mrs Ostojic’s prognosis is for her symptoms to wax and wane in a continuing fashion.”[44]
[44]CB 221.
85 In his report of 9 August 2012, Mr Entwisle was of the opinion that the plaintiff’s psychiatric condition (the Adjustment Disorder with Anxiety and features of traumatisation) was largely in remission with the lapse of time and further treatment.[45]
[45]CB 227.
86 In his most recent report of 19 August 2013, Mr Entwisle’s conclusion with respect to the plaintiff’s mental health, in summary, was:
· her major depressive illness and traumatised response were in abeyance with appropriate psychiatric/psychological treatment;
· she had told him previously that she was withdrawn, not going out, and housebound. She was not now, so she had essentially recovered in this regard;
87 Her overall functioning had improved to the point where she is managing what essentially is now a normal lifestyle for someone of her own age who is not working and is was single. She remains involved in her local church. She has regular contact with her daughter and son and “is avidly involved with her grandchildren. Her prognosis is good”.[46]
[46]CB 232.
The Law
88 The onus is on the plaintiff to satisfy me on the balance of probabilities that the injury to her lumbar spine, when judged by comparison with other cases in the range of possible impairment or losses, can fairly be described at least as “very considerable” and certainly more than “significant” or “marked”.[47]
[47]S93(17) (a) Transport Accident Act; Humphries and Poljak [1992] 2 VR129.
89 In so far as there has been an aggravation of her pre-existing back injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[48] The aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.
[48]Petkovski v Galletti [1994] 1 V R 436 at 144.
90 In an application under s93(17)(a) of the Act where a plaintiff who has suffered a significant physical injury has also developed a psychological response to that physical injury, it is permissible to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[49]
[49]Richard and Anor v Wylie (2000) 1 VR 79 at 87.
91 With respect to the plaintiffs application under s93(17)(c) of the Act, in Mobilio v Balliotis,[50] Ormiston JA stated that the word “severe” in paragraph (c) was stronger in terms of significance or gravity than serious and Winneke P agreed.[51] According to Turner v Love [1995] 21 MVR and Hunter v TAC [2005] VSCA 1 in considering the severity of a mental condition or disorder the need for treatment its type and frequency and any past or future side effects it might have should be taken into account.
[50][1998] 3 VR 833 at 846.
[51]834-835.
92 In reaching my decision in this matter I have taken all these authorities into account.
The Lumbar Spine
Finding – causation
93 It was submitted for the defence that I could not be satisfied that there was any injury to the plaintiff’s back as a result of the accident. In making this submission the defendant relied on the fact that there was no contemporaneous complaint of back pain by the plaintiff at the time of the accident. This included to the ambulance officers, to staff at the hospital and to Dr Lim.
94 In particular, it was submitted that if the plaintiff had complained of back pain when she attended Dr Lim on 3 May 2005 he would have taken a note of her complaint and that I should not accept that his notation of sending the plaintiff to a chiropractor, implied that she must have had severe back pain.
95 With respect to the radiology, it was submitted that there was no identifiable change between the CT in 2008 and 2013. The former scan showed degeneration at the L4/5 disc and this same degeneration had been present in the scan of 2008.
96 It was submitted that consequently there was no evidence which would lead to a conclusion that there was any pathological change in the state of the disc or the lumbar spine of the plaintiff following the accident. On the contrary the evidence suggested that there were complaints from the plaintiff of back pain and sciatic pain for many years, at least intermittently, prior to 2005.
97 In support of this submission, the defendant also relied on Mr Kenna’s opinion that the plaintiff has progressive degenerative change pertaining to the lumbar spine but that her symptoms now did not relate to the injuries incurred in the accident.
98 I accept that the plaintiff did not initially complain of back pain after the accident. This finding is supported by the notation in the ambulance notes of “no neck pain back pain and altered sensations”. In addition by the fact that there is no record from the hospital of the plaintiff suffering from back pain after the accident.
99 With respect to whether the plaintiff complained of back pain to Dr Lim on 3 May 2005 the situation is not as clear. This is because although he did not make a note of back pain on that date Dr Lim drew an inference that she must have complained. This was because his notes had recorded that he should refer her to a chiropractor in three days. This situation was not helped by the fact that, when Dr Lim helped the plaintiff fill out the TAC compensation claim form on 5 May 2005 it made no reference to the plaintiff having suffered from a back injury as a result of the accident.
100 While I am not satisfied that the plaintiff complained to Dr Lim about back pain on 3 May 20005, I accept that this was probably because the injury which was causing her the most pain at that time was her right knee. Despite her failure to mention back pain and the omission in the claim form, it is apparent from the Chiropractic Treatment Questionnaire that just three days after she saw Dr Lim the plaintiff had chiropractic treatment for injuries from the accident including “LBM strain”.[52]
[52] CB 120.
101 It is not to difficult to conclude that “LBM” refers to Lower or Lumbar back muscle strain. The notation in this Questionnaire is also supported by the plaintiff’s evidence that the chiropractor manipulated her back and sometimes put it in a machine for massage.[53] When she was asked why she attended the chiropractor seven days after the accident, she said it was because her back and hip were sore and her doctor advised her to do so.[54]
[53] T 91.
[54] T90.
102 Dr Lim’s notes reveal that on Monday, 30 May the plaintiff had pain in her left hip and back, and that the left knee remained. By September 2005 the plaintiff was receiving physiotherapy for her back pain and Mark Elbi, who treated her, was of the opinion that her back pain related to the accident.
103 Mr Elbi is not the only treating practitioner who holds this view. Dr Lim, Dr Woo, Mr Muir and Mr Thomas are all of the opinion that as a result of the accident the plaintiff suffered aggravation of the pre-existing spondylosis of her lumbar spine.
104 When he was asked about his treatment leading up to 2004 and whether he would have been surprised if he received a CT scan at that time that reflected the CT scan of 2008, noting his treatment and complaints of pain, Dr Woo answer was:
“Well, the finding in 2008 is very severe degeneration. I’d be surprised if that would be the same in 2004.”[55]
[55] T133.
105 As to the medico-legal experts, it appears to me that Mr Simm and Mr Kenna are essentially in agreement that the accident caused an aggravation of the plaintiff’s pre-existing degenerative lumbar spine condition. In essence, the difference between them is that Mr Simm believes that this injury has not resolved while Dr Kenna’s is of the opinion that the physical injuries directly sustained in the motor vehicle accident have now resolved.
106 While it was submitted for the defendant that Mr Simm’s opinion was wrong as he had not sufficiently taken into account the plaintiff’s pre-accident lumbar condition or the previous x-rays regarding the plaintiff’s back, I accept his opinion rather than that of Mr Kenna.
107 Mr Simm’s diagnosis is supported by both the plaintiff’s general practitioners who under cross-examination, maintained their opinion that the accident aggravated the plaintiff’s pre-existing degenerative back condition and gave evidence that after the accident her symptoms were more significant.
108 When comparing the plaintiff’s back condition after the workplace injury with the situation after the accident Dr Woo said, “I wouldn’t have expected her to be able to return to work if she had significant disc protrusion and pain”.[56] In addition that she “didn’t strike him as a person who is addicted or would misuse this analgesic’” but only asked for it when she needed it.[57]
[56]T130.
[57]T180.
109 This diagnosis is also supported by Dr Lim’s evidence, that after the accident the plaintiff required stronger pain relieving medication, such as Tramadol, and the reason he prescribed the medication was that the plaintiff was in severe pain.[58]
[58]T173
110 It is also supported by the plaintiff’s evidence that:
· after the incident at Bosh she returned to work at night shifts in the pipe and exhaust factory where she was welding;
· she took no time off because of back pain, and worked there until she went to Bosnia;
· the nature of the work she was able to carry out at the church prior to the accident, included heavy work assisting in the industrial kitchen;
· and that she was able to perform all the usual domestic tasks.[59]
[59]T 87.
111 While the plaintiff admitted that
· she saw Dr Woo for back pain from time to time prior to the accident and was prescribed Panadol , Panadeine Forte, Panamax; and Celebrex;[60]
[60]T54, note the plaintiff claimed that this was not regularly.
· in 1995 she had gone on the disability pension because she could not work (Dr Woo had helped her fill in the form which was “probably for the back”) and she stayed on the pension until the accident in 2005, because “from time-to-time she continued to have back pain”;[61];
[61]T46.
· in August 2001, Dr Woo probably arranged an x-ray as she was in severe pain; [62] ;
[62]T52.
· in September 2003 at Dr Woo’s practice she was prescribed Celebrex and Temaze;
· in January 2005 she went to Dr Lim’s practice complaining of low back pain and sciatica some four months before the accident and that she probably had an x-ray or CT scan in 2005[63];
[63]T57.
112 However, while she admitted to suffering from episodes of prior back pain prior to the accident, the plaintiff referred to the pain as being “not severe like it is now.” She said, “Today I’m worse, I’m today very bad, at this stage I’ve very bad”.[64];
[64]T88.
113 For the reasons outlined above, I am satisfied, on the balance of probabilities, that as a result of the accident on 29 April 2005 the plaintiff suffered permanent aggravation of her pre-existing lumbar spondylosis. In his report of Mr Simm stated that
“The concept of that a previously compromised degenerative structure could be further injured in the accident leading to irreversible changes and a permanent increase in the symptoms is medically pathologically sound. Permanent aggravation of degeneration and lumbar spondylitis is commonly encountered.”
114 I accept that this is the situation with the plaintiff and I find that as a result of the accident in April 1995 she has suffered permanent aggravation of her pre-existing lumbar spondylitis. Therefore, I accept that her pain has an organic basis being the aggravation of the pre-existing degenerative condition of her lumbar spine.
a
Consequences of Injury to lumbar spine
Pain
115 The plaintiff’s evidence regarding the pain she suffered from her back injury may be summarised as follows:
· instead of pain sometimes in her back she now has pain all the time. Her evidence was “I’m worse, I’m today very bad, at this stage I’m very bad”;[65]
[65]T88.
· that her pain varied in intensity from day to day and that she had good days and bad days;
· that presently the plaintiff takes medication every day being Lyrica, Tramadol, Panadol Osteo (on average six a day) and Cymbalta, and when the plain is very bad, she takes Mobic or Endone;[66]
[66]CB17.
· prior to the accident including after the accident at work in 1985, the plaintiff could not remember taking Endone for back pain or Tramal. She mainly took Panamax and Panadeine Forte;[67]
· that she continues to see Dr Woo every two to three weeks.
[67]T90.
116 The plaintiff’s complaints of suffering more severe and constant back pain after the accident were supported by: her husband who deposed that:
· since the accident she has complained more often of back pain and hip pain and that she was not sleeping well.[68]
[68]T191.
117 In addition by the history of lower back pain she gave to the various medical experts:
· Mr Simm -23 July 2013 –“she experienced constant pain in her lower back each day”;
· Mr Entwisle-“she continues to describe pain in her low back which radiates into her left leg”;[69]
· Mr Weissman –“she continues to experience pain in her lower back, left buttock and left hip region. She told me that the pain was really bad and getting worse. She told me that her pain was particularly bad and severe during march and April 2013.She commenced Lyrica at that time”.[70]
[69]CB230.
[70]CB 160.
118 However, the most significant support came from her treating practitioner Dr Dr Woo who gave evidence that he prescribed Endone/Tramadol for the plaintiff because her “pain became very, very severe and unbearable”. He also said that his practice was to only prescribe Endone to patients when the pain was very severe.[71]
[71]T139.
119 In his report of 6/5/2013 Dr Woo stated that the plaintiff still continued to complain of moderate to severe low back pain ,with pain radiating down her left buttock and hip and that her low back pain is there all the time with varying intensity. In his opinion, while there was a psychogenic component to the plaintiff’s pain, it was not a strong one.[72]
[72]T109.
Effect of pain on her capabilities and enjoyment of life
Domestic chores
120 The plaintiff gave evidence that before the accident she did the cooking and the cleaning: “She did everything.” Asked what difficulties she experienced with her back then she replied “I didn’t have time, I was more depressed than I have a problem with back in this time”.[73]
[73]T86.
121 After the accident she could still cook and do some cleaning but there are days when she found it hard to perform housework because of the pain in her back and left hip, and her daughter came over to help. The pain in her left hip and back was aggravated by prolonged sitting, standing, repetitive bending and performing household activities, such as mopping and vacuuming. [74]
[74]CB 6-18A.
122 The plaintiff’s daughter described her mother before the accident as being very house proud and asked to explain she said “We have always lived in a beige house and everything had to stay beige and clean, now you know she does the best she can bit its not the same.”[75] She gave evidence that she assisted her mother with the vacuuming and mopping.[76]
[75]T203.
[76]T 203-204.
123 The plaintiff’s husband supported her claim that she had found it more difficult to do the house work since the accident and said that he tried to help her with the cooking and washing.[77]
[77]CB 21.
124 The plaintiff gave evidence that she did the shopping for small items walking three kilometres from the house to the shops but her husband or children do the big shops .[78] While the plaintiff agreed that she could normally walk at a fast speed and that in video footage shown in court there were no signs of any restrictions when she was walking she said
[78]T79.
125 “I couldn’t – I think, when I’m under the medication mostly if I’m walking because I have pain so I have medication, I don’t know how I’m feeling without medication”.[79]
[79]T39.
The Church
126 The plaintiff gave evidence that at the church she “did cooking, serving the food to the clients, taking food to the dining room, organising everything.” She was the supervisor in the kitchen and worked as a volunteer on Friday, Saturday, Sunday and Mondays on a regular basis. Sometimes there were large functions such as engagement parties, weddings – up to 500 people.
127 The volunteer work was very heavy but enjoyable. There were not any times when she was not able to work in the kitchen at the church because of back pain. She worked, she involved herself in the kitchen for, cooking and serving, supervising the kitchen.[80]
[80]T83, 87, 94.
128 The plaintiff’s daughter and husband supported her evidence that shortly after she came back to Australia the plaintiff involved herself heavily in the pensioners’ club and church and that she went up until the day of the accident.[81]
[81]T88.
129 In his affidavit, Cedomir Videkanic, a Serbian Orthodox priest, who has known the plaintiff for more than 25 years described her as being a highly active member of the parish prior to the accident.[82]
[82]T6.
130 The plaintiff gave evidence that since the accident she had not been able to work at the church as a volunteer. She misses volunteering at the church and supervising in the kitchen. The problem with the work is the pain in her back.[83]
[83]T94.
131 The plaintiff’s daughter gave evidence that she knew that her mother did not volunteer at the church any more and did not attend the pensioners club as she had kept in touch with a lot her mothers friends whom her mother no longer sees.[84]
[84]T204
Gardening
132 Before the accident, the plaintiff was a keen gardener. Now she needs a chair to do the gardening.[85] The plaintiff’s daughter gave evidence that her mother was “very much into gardening” and that in the past they had a large garden. While her mother only had a small patch with flowers now she did not believe that she would be able to tend to a large garden because of her pain and incapacity.[86]
[85]T93.
[86]T202
Driving
133 Before the accident the plaintiff had no fear of driving or being a passenger in the car. She no longer drives and is a very nervous passenger and gets panicky easily. Walking across the road makes her nervous. However, when she was cross-examined the plaintiff agreed that her treatment had been effective and that she “now had crossing the street with traffic lights under control”.[87]
[87]T64.
134 The plaintiff’s husband and her daughter confirmed she that had not driven since the accident although her husband had offered to buy her a car,[88]However, the plaintiff’s daughter agreed in cross-examination that her mother drove rarely before the accident and mainly used public transport. In addition that she could now cross the road.[89]
[88]CB20, T187.
[89]T200.
Social Life
135 She goes out for bingo two to three times a week and doctors’ appointments. She has neighbours who drop in and see her and the children come to visit her.
Looking after her grandchild
136 She regularly looks after her daughter’s little girl, Olivia, two to three days a week and she loves it but her husband had to assist her.[90] When he gave evidence the plaintiff’s husband confirmed that he helping her look after their grandchild (changing nappies, running baths, etc).[91] Her daughter gave evidence it was a struggle for her mother to pick Olivia up and cuddle her and that her mother was distressed about this.[92]
[90]T78.
[91]T189.
[92]T194-5.
Finding
137 While the plaintiff was at times vague and inconsistent with the dates, I accept that she was an honest witness doing her best to recall her somewhat troubled history of prior back pain and depression. Most importantly I accept her account of the severe pain she has suffered since the accident, which is supported by her husband and daughter and both treating general practitioners.
138 It is apparent from the section of this Judgment comparing the plaintiff’s pain before and after the accident that there has been a significant increase in her pain and the frequency of it. I have already referred to the evidence of her general practitioners regarding this fact, which in essence was that they accept her as a genuine person, who, since the accident, has suffered from significant pain which has required strong medication.
139 While I do not entirely accept the portrait painted of the plaintiff by her husband and daughter and I will come back to this later in this Judgment, I accept that due to the pain in her back since the accident the plaintiff has suffered restrictions in her domestic life, family life, social life and charity work at the church.
140 With respect to the plaintiff’s work for the church, I accept that it was not merely coincidental that she stopped this work straight after the accident. Given the plaintiff’s enjoyment in this role I consider that but for the accident she would have continued to perform theses duties with lighter duties as time went on.
141 While the defendant relied on video footage of the plaintiff walking to her local shops, I accept her evidence that she takes her medicine before she walks this distance (3 kilometres) and that she only shops for small items.[93]
[93]T79.
142 In arriving at my decision, I have in addition taken into account that the plaintiff has been a trip to Queensland where she helped a friend look after her 15 year old autistic boy. While she was able to do this job for a friend of hers, I accept that she just prepared his dinner as he was at school during the day.[94]
[94]T82-83.
143 With respect to a trip to Bosnia in 2010 (for the funeral of her younger brother) and a trip to Wilsons Promontory it is not as though the plaintiff has travelled frequently since the accident and these trips do not alter my opinion.
144 Another matter relied upon by the defendant was the fact that the plaintiff was on a disability pension due to the condition of her back and psychological issues prior to the accident. I accept that the plaintiff went on the pension as she was not capable of performing her pre-injury work as a process worker. However, I am satisfied that she was coping well with her work at the church and with her domestic duties.
145 Insofar as the plaintiff’s other various conditions are concerned, I accept that they are under control and that they do not cause her constant pain or impact on her life in the same manner as her back injury does. The plaintiff agreed that she had had cancer which had been stressful but after the operation she was relieved. [95]
[95]T81.
146 The plaintiff also suffered from cardiac arrhythmia and had arthritis which sometimes caused her pain in the neck, shoulders and feet, and she agreed that the pain medication helped with the pain throughout her body.[96] However, I accept that theses conditions did not interfer with her ability to perform house hold duties and do her volunteer work at the church.
[96]T82.
147 For all the reasons outlined above and, in particular, the evidence of Dr Lim and Dr Woo regarding the plaintiff’s pain and the medication she now takes for it, I am satisfied that the pain and suffering consequences of the injury to plaintiff’s lumbar spine when judged by comparison with other cases in the range of possible impairment or losses, can fairly be described at least as “very considerable” and certainly more than “significant” or “marked”.
148 I am also satisfied that these consequences are permanent. It has been eight years since the accident. I accept Mr Simm’s opinion that the plaintiff has suffered a permanent aggravation to her lumbar spine which is not going to improve.[97]
[97]T67.
149 Insofar as the plaintiff has developed a psychological response to her injury, in particular a chronic pain syndrome, in determining whether the consequences of her impairment meet the narrative test, I have taken her psychological response to the pain of her injury into account on the basis of Richards & Anor v Wylie (2000) 1 VR 79.
150 For the reasons detailed in this judgement I grant the plaintiff’s application pursuant to s 93 ( 17) (a) of the act for leave to commence proceedings to recover damages for the injury to her lumbar spine resulting from the accident in 29 April 2005.
Mental injury
151 In determining whether the plaintiff has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder it is necessary to compare her mental state prior to the accident with her state after the accident. This is because it is clear from the evidence that the plaintiff had a prior history of depression.
152 While the plaintiff denied that she had suffered from depression before she went to Bosnia[98] and that when she attended at Dandenong Hospital in the middle of 1995, she had reported a history of depression for about 10 years. When cross-examined she agreed that :
[98]T43.
· after the incident at work in 1985 she was treated at Richmond Pine Clinic by Dr Holwill who was her psychologist;[99]
[99]T38.
· in the 1990s she was suffering from problems with sleep;[100]
[100]T49.
· in May 1996 she was admitted to Dandenong Hospital after she collapsed at home. This was because she was feeling suicidal about family problems, in particular her separation from her husband and difficulties she was experiencing in controlling her teenage daughter;[101]
[101]T44.
· in May 1996 she consulted psychiatrist Dr Maloney and he treated her and prescribed anti-depressant medication;[102]
[102]T43.
· that before 1998 she made two suicide attempts, overdosing on tablets and alcohol;[103]
[103]T49.
· that on 16 May 2000 she probably attended (but not regularly) Dr Wu complaining of anxiety and depression and was prescribed Inderal and Temaze;[104]
· that in July-September 2003, Dr Wu had prescribed Zoloft;[105]
· that she had bouts of treatment for depression between 1998 and 2005 and took anti-depressant medication (not regularly but only when she was depressed and she was not depressed at that time all the time).[106]
[104]T54.
[105]T56.
[106]T55.
153 Given this history I do not accept the claim by the plaintiff (which was supported by her husband and daughter) that she was “positive, happy and healthy prior to the accident”[107] as being totally accurate. Rather, I accept Dr Weissmann’s opinion that “she most probably had mild to moderate psychiatric symptoms and vulnerabilities prior to the accident and that she has found it difficult to cope since then”.[108]
[107]CB 6-28.
[108]CB 157.
154 In addition, I accept his opinion that due to the accident the plaintiff’s pre-existing depression and anxiety were aggravated and that she developed new post traumatic and stress symptoms and anxiety symptoms. In particular that as a result of the accident she developed a fear of crossing the road and fear of driving.
155 The connection between these former symptoms and the accident appears to be well-accepted by the medical experts. Dr Woo referred the plaintiff to Dr Cumming in June 2005 for therapy regarding her fear of crossing the road, and in 2010 to Catherine Chan Kwa for treatment which continues today.
156 However, I am not persuaded that the plaintiff’s current mental condition meets the definition of being “severe”. Insofar as the plaintiff’s post-traumatic stress and her fear of crossing the road is concerned I accept that Dr Cummings’ treatment has substantially cured her problems. The plaintiff gave evidence that she is now able to walk over crossings and can get herself around on public transport.
157 With respect to driving a car, the plaintiff agreed that effectively before the accident she did not drive as she did not have a car. She did drive when she was working but after that it was uncommon for her to have a car so she used public transport.[109] Consequently, it cannot be said that her not driving is a consequence of any significance to her.
[109]T47.
158 It is clear from the plaintiff’s evidence that since she had her grandchildren her mental health has improved considerably. She gave evidence that she loves looking after her grandchild and that her sleep is now better and her general feeling of happiness is better.[110]
[110]T79.
159 While the plaintiff also gave evidence that she needed her husband to help the grandchild because “I’m not clear with my head to take full responsibility for three days for the little one because maybe they need to go to the doctor and the little one is annoyed and makes me stressed,” the overall impression she gave was positive.[111]
[111]T95.
160 The fact that the plaintiff is still capable of engaging socially with her daughter, looking after her grandchild, albeit with the assistance of her husband, and going to bingo and seeing neighbours is not consistent with her mental condition being “severe”.
161 Dr Entwisle, who saw the plaintiff in August 2013, was of the opinion that her prognosis was good and that her treatment had largely achieved its goals. Given her propensity towards depression he considered that her medication regime needed to be reviewed by Dr Chong on a regular basis. As to her treatment with Ms Chan-Kwa it had achieved its ends and he believed that it was reasonable for it to continue on a two month basis for six months and then cease.[112]
[112]CB 233.
162 Dr Strauss, however, was of the opinion that the plaintiff needed to continue with seeing both Mr Chong and Ms Chan–Kwa and to continue with medication.[113] This was also the opinion of Dr Weissmann who believed that the plaintiff would require such a regime indefinitely.[114]
[113]CB 211.
[114]CB 170.
163 While I accept the opinion that the plaintiff needs to continue with appropriate treatment and that this is due partly to the accident and to her pre-existing mental condition, for the reasons detailed above I am not satisfied that her long-term mental condition can be described as being other than mild or at the highest moderate. Consequently I refuse the plaintiff’s application pursuant to s93 (17)(c).
0
2
0