Ozsoy v Transport Accident Commission
[2017] VCC 437
•26 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02082
| BELINDA OZSOY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9, 13 and 14 February 2017 | |
DATE OF JUDGMENT: | 26 April 2017 | |
CASE MAY BE CITED AS: | Ozsoy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 437 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychiatric injury – Chronic Major Depressive Disorder – pre-existing Psychiatric Disorder – aggravation of pre-existing psychiatric condition – whether the consequences are “severe” for the plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566; Transport Accident Commission v Florrimell [2013] VSCA 247; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Application for serious injury certification in respect of psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D C Dealehr | Simon Legal |
| For the Defendant | Mr P W Rattray QC with Ms J Clarke | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff brings this application by Amended Originating Motion dated 30 April 2014. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 25 April 2008 (“the said date”).
2 Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”. In this application, the relevant definition of “serious injury” relied upon by the plaintiff is under s93(17)(c):
“Severe long-term mental or severe long-term behavioural disturbance or disorder.”
3 At the commencement of this application, Mr Dealehr, on behalf of the plaintiff, abandoned the application by the plaintiff for serious injury certification in respect of physical injuries she received in the transport accident on the said date. The plaintiff’s application for serious injury is based on a serious long-term severe mental or behavioural disturbance or disorder.
4 A serious injury under s93(17)(c) requires the level of impairment to be “severe”.[1] In forming the judgment as to whether the consequences and the injury are “serious”, the question to be asked is: can the injury when judged by a comparison with other cases in the range of possible impairments, be fairly described as “at least ‘very considerable’” and certainly “more than ‘significant’ or ‘marked’”?[2]
[1]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 846
[2] Humphries & Anor v Poljak [1992] 2 VR 129
5 The plaintiff swore and relied upon two affidavits dated 4 December 2016 and 11 April 2016. The plaintiff gave evidence and was cross-examined in this application. The plaintiff was the only witness to give evidence in this case. The plaintiff gave evidence on 8 and 9 February 2017. In the course of her evidence on 9 February 2017, the plaintiff required an adjournment due to a diagnosed panic attack. The plaintiff’s case did not continue on 10 February 2017. This was due to the plaintiff’s inability to attend Court and give evidence. The plaintiff resumed her evidence on 13 February 2017 and completed her evidence on that day.
6 On the first day of her evidence, the plaintiff challenged the history that she had given to Associate Professor Doherty, psychiatrist, who had examined her on behalf of the defendant. Associate Professor Doherty provided a supplementary report to his report dated 6 October 2016. Associate Professor Doherty’s supplementary report was dated 9 February 2017. In the unusual circumstances of the criticism of Associate Professor Doherty, I had given the plaintiff an opportunity to cross-examine Associate Professor Doherty on his history of the plaintiff’s condition and his opinions. The plaintiff declined to cross-examine Professor Doherty on his two reports.
7 In addition to the evidence of the plaintiff, both parties tendered documents including medical reports and other materials in support of the application. I have read all the tendered medical material.
8 The evidence tendered in this proceeding was as follows:
· The plaintiff tendered the following documents:
§ The Plaintiff’s Court Book (“PCB”) pages 1 – 8, inclusive, 20 – 70 inclusive, 90 – 95 inclusive, 102 – 122 inclusive, 124 – 144 inclusive and 148
§ Exhibit P2 – Letter from Southern Health to Dr So Thein dated 10 July 2007
§ Exhibit P3 – Letter to Simon Lee dated 7 February 2017 and a letter dated 4 August 2017
§ Exhibit P4 – Entries from the Southern Cross Medical Centre dated 23 September 2013, 23 March 2001 and 9 May 2001
§ Exhibit P5 – Entries from First Health Medical Centre dated 29 April 2008, 25 May 2008 and 27 June 2008
§ Exhibit P6 – Reports of Dr Serry, psychiatrist, dated 23 April 2012 and 4 March 2013
§ Exhibit P7 – Email to DFAT dated 8 January 2009.
· The defendant tendered the following documentation:
§ Exhibit D1 – Application for carer payment or carer allowance dated 25 January 2002
§ Exhibit D2 – Three video surveillance films carrying the dates of 30 September 2014, 4 October 2014 and 4 March 2016
§ Exhibit D3 – Letter from Dr Troedson to the Transport Accident Commission dated 10 July 2016.
§ Exhibit D4 – Defendant’s Court Book (“DCB”), progress notes from Southern Cross Medical Centre and the entry dated 13 April 2016
§ Exhibit D5 – DCB pages 1 – 34D inclusive, 35 – 62 inclusive, 60, 65, 92, 97, 98, 101, 118, 134, 137 – 138, 149, 155 – 156, 167, 189, 190 – 196 inclusive.
9 Mr Rattray, on behalf of the defendant, identified the following matters as issues in this application:
(a) The plaintiff suffered from pre-accident psychiatric conditions. The plaintiff has to establish the level of aggravation to those pre-accident problems;
(b) The plaintiff has given flawed and inaccurate histories to the medical practitioners that have reported on her condition;
(c) The credibility and reliability of the plaintiff;
(d) Whether the plaintiff is still suffering from a psychiatric condition which is a result of the transport accident;
(e) Whether the plaintiff’s psychiatric condition meets the “severe” test as required under the Act;
(f) The plaintiff has to disentangle her current psychiatric condition from events subsequent to the transport accident.
The Plaintiff’s background
10 The plaintiff was born in 1981 and is currently thirty-five years old. The plaintiff’s first marriage occurred in May 1999. The marriage lasted for six weeks.[3] The plaintiff’s father died in December 2000.[4]
[3]Transcript (“T”) 44 – 45
[4]T44
11 The plaintiff was married to her current husband, Cem Ozsoy, in February of 2009. The plaintiff has two children.
12 The plaintiff was educated to Year 12. Upon leaving school, she worked as a receptionist for a period of six months and then in data entry at an importing company before working in a secretarial and personal assistant role for three to four years. The plaintiff was employed in a real estate agency eighteen months prior to the transport accident. The plaintiff, upon return from Turkey, obtained employment again in a different real estate agency. Her employment at that real estate agency was terminated. The plaintiff has not worked since that time.
13 The plaintiff currently lives with her mother, husband and two children. The plaintiff is in receipt of a carer’s allowance from the Department of Social Services in respect of her mother. In her evidence, the plaintiff described that allowance as a Commonwealth Centrelink Carer’s pension.[5]
[5]T26
14 The plaintiff is engaged in home duties, caring for her mother and two children. The plaintiff states that she is unable to return to paid employment due to her psychiatric and psychological symptoms.
The transport accident
15 The plaintiff sets out the circumstances of the transport accident giving rise to this application in her affidavit dated 4 December 2016:
“On 25th April 2008 I was involved in an accident. I had been at a friend’s house having some drinks with my then boyfriend, Peter, and another friend, Craig. Peter was going to drive Craig and I home. As we were walking to the car, Craig took the keys off Peter and ran off. Craig was extremely intoxicated. Peter and I got into the car to wait for him to return. I sat in the back seat, while Peter sat in the front passenger seat and we both fell asleep after a little while. I woke up suddenly when Craig was driving the car. As I woke up, Craig was losing control of the car, which fishtailed, and then collided with a parked utility vehicle.”[6]
[6]PCB 6
16 The plaintiff returned to her home in company with her boyfriend, Peter, after she had spoken with the police.
17 The plaintiff did not seek any medical treatment until 29 April 2008 at her general practitioner at First Health Medical Centre.[7]
[7]PCB 7
Treatment of the Plaintiff as a result of the transport accident
18 The plaintiff attended her general practitioner, Dr Miroslava Vujosevic, on 29 April 2008. This was some four days after the transport accident. The plaintiff complained of chest pains and multiple bruises. She also complained of being very stressed. The diagnosis of the general practitioner after this consultation was a soft-tissue injury. A prescription of Effexor of 150 milligrams daily was prescribed. This prescription was a continuation from previous prescriptions.[8]
[8]DCB 191
19 The plaintiff attended her general practitioner on 1 May 2008 complaining of difficulty sleeping and suffering from depression and anxiety. The next attendance by the plaintiff on her general practitioner was on 25 May 2008 when she saw Dr Sudarma Munathanthiri. The plaintiff was complaining of not feeling well and feeling anxious, stating that she was an only child and her father had passed away some seven years before. A further prescription of Effexor was made for 150 milligrams per day.[9]
[9]DCB 190
20 On 20 June 2008, the plaintiff attended Dr Vujosevic regarding an assault by her boyfriend the day before. On that occasion, the plaintiff complained of multiple physical injuries to herself, and was prescribed Brufen. The plaintiff reported that police were investigating the assault by her boyfriend.
21 The plaintiff attended upon Dr Gayle Troedson, general practitioner, on 4 August 2008. The purpose of this visit was to obtain immunisation for Hepatitis A and typhoid as the plaintiff was then going to go on holidays to Turkey for a period of three months.[10]
[10]DCB 145
22 The plaintiff next attended upon Dr Troedson on 13 March 2009. This was after the plaintiff had been in Turkey on holidays. The plaintiff gave a history to Dr Troedson of having suffered from a miscarriage in Turkey. She also gave a history of having had her appendix removed whilst in Turkey.[11] The plaintiff also told Dr Troedson on 30 March 2009 that she had stopped using Effexor four months prior.[12]
[11]DCB 144
[12]DCB 143
23 By 18 September 2009, the plaintiff again attended Dr Troedson complaining of being stressed at work due to it being very busy. The plaintiff at that time was also thirty to forty weeks’ pregnant.[13] At that visit, the plaintiff was given a certificate for one day off work.
[13]DCB 138
24 On 29 September 2009, a letter was handed to the plaintiff advising her that her employment was being restructured and that as of 12 October 2009 a new position was to be made open for her.[14] The plaintiff ceased work on that day and has not worked since.
[14]PCB 128
25 The plaintiff was then referred to Coleen Colman, psychologist, by the general practitioner, Dr Troedson. The plaintiff first presented to Ms Colman in January of 2010.[15]
[15]PCB 20
26 The plaintiff gave a history to Associate Professor Doherty that she had attended on Ms Colman on a regular basis since the time of the transport accident. The plaintiff stated that she had attended Ms Colman every fortnight or every month. In her history to Associate Professor Doherty she stated that she had not attended Ms Colman for the three months immediately prior to the assessment on 26 August 2016[16].
[16]DCB 21
27 In the tendered materials in this case, there was only one report from a psychologist, Ms Colman, dated 23 March 2013.
28 The plaintiff has also been referred to Dr Geoffrey Hogan, psychiatrist, for treatment. The plaintiff attended upon Dr Hogan from 6 September 2012 until 2 July 2013.[17] Dr Hogan, at that time, prescribed the plaintiff with 37.5 milligrams of Effexor. The plaintiff then did not attend Dr Hogan for a period of approximately fifteen months. On 15 October 2014, the plaintiff returned to see Dr Hogan. At that stage, Dr Hogan noted the plaintiff was on 150 milligrams of Effexor daily. The plaintiff then had a twenty-two-month gap in treatment by Dr Hogan. She re-attended Dr Hogan on 10 August 2016.[18] The plaintiff continued in her treatment with Dr Hogan until 23 December 2016.[19] The plaintiff was prescribed 250 milligrams of Pristiq daily. She was also prescribed Zyprexa and Valpro.[20] In the course of this hearing, the plaintiff returned to Dr Hogan for assessment in relation to her panic attack during the course of giving evidence in this case. Dr Hogan prepared a medical certificate dated 10 February 2017.[21]
[17]PCB 103
[18]PCB 107
[19]PCB 108
[20]PCB 108
[21]PCB 132
29 The plaintiff has also been treated for irritable bowel syndrome. The general consensus of medical opinions is that the irritable bowel syndrome symptoms suffered by the plaintiff are stress related. The defendant concedes that the irritable bowel syndrome is stress related but the issue is whether or not the stress is caused by the transport accident and not some other stressors in the plaintiff’s life.
30 The plaintiff’s current treatment in respect of her psychiatric and psychological symptoms is a prescription of 150 milligrams of Pristiq per day. She is currently under the care of her general practitioner, Dr Troedson and Dr Hogan. The plaintiff takes other medication in respect of her irritable bowel syndrome and Panadeine Forte for pain.
Medical opinions
The Plaintiff’s medical opinions
Dr Gayle Troedson, general practitioner
31 The plaintiff tendered and relied upon ten separate reports prepared by Dr Troedson between the dates of 4 September 2011 and 21 October 2016. These reports appeared between pages 34A and 47 of the PCB.
32 In her first reported dated 4 September 2011, Dr Troedson noted that she had not been consulting the plaintiff at the time of the transport accident in June 2008 (scil April 2008). Dr Troedson noted that the plaintiff had been taking antidepressants prior to the transport accident but she did not have any record of this from her own clinic. The plaintiff’s complaint was her anxiety was worse since the transport accident. Dr Troedson noted that she cannot say to what extent the transport accident had increased the anxiety symptoms as the plaintiff had not been seeing her in the months or years prior to the transport accident. Dr Troedson had referred the plaintiff to Dr Goya, gastroenterologist, for irritable bowel syndrome. Dr Troedson was not able to say how much of the irritable bowel syndrome symptoms are related to the transport accident.[22]
[22]PCB 34A
33 In a report dated 21 June 2012, Dr Troedson noted that the plaintiff was prescribed 150 milligrams of Effexor. She noted that the plaintiff had been referred to a psychiatrist.[23]
[23]PCB 35
34 In a report dated 20 October 2013, Dr Troedson noted that a treating psychiatrist had diagnosed the plaintiff as suffering a Major Depressive Disorder with some post-traumatic features. Dr Troedson’s opinion was that the plaintiff needed to attend at a multidisciplinary pain management course to deal with her problems.[24]
[24]PCB 36
35 In January 2015, Dr Troedson noted that the plaintiff was still attending Colleen Colman for psychological treatment. She was also attending a psychiatrist, Dr Hogan, for anxiety and depression.[25]
[25]PCB 38
36 In her report dated 7 February 2016, Dr Troedson noted that the plaintiff had not seen her psychiatrist recently. She noted that the plaintiff was taking 150 milligrams of Pristiq on a daily basis. Dr Troedson noted that the plaintiff’s anxiety and depression remained the same.[26]
[26]PCB 42 – 43
37 On 13 April 2016, the plaintiff was referred back to Dr Geoffrey Hogan by Dr Troedson. This referral to Dr Hogan was made after the plaintiff had attended Dr Troedson complaining about feeling more anxious after becoming aware of TAC video footage of her movements.[27]
[27]Exhibit D4
38 In her report dated 21 October 2016, Dr Troedson noted that the plaintiff’s dose of Pristiq had been increased to 200 milligrams per day. The plaintiff, at that stage, was seeing Dr Hogan every two to three weeks.[28]
[28]PCB 46A
Colleen Colman, psychologist
39 The plaintiff has given evidence that she has been treated by Colleen Colman for her psychiatric and psychological symptoms over a long period of time. In her history to Associate Professor Doherty, she stated that she had commenced seeing Colleen Colman in July of 2008.[29] She also told Professor Doherty that she attended Ms Colman every fortnight or every month.[30]
[29]DCB 22
[30]DCB 21
40 The plaintiff relied on a report from Ms Colman dated 23 March 2013. Ms Colman noted that the plaintiff first attended on her in January of 2010. Ms Colman gave a history of the plaintiff suffering from anxiety following a motor vehicle accident. Ms Colman noted that the plaintiff’s anxiety went on to develop into depression. Ms Colman noted that the plaintiff had continued to suffer symptoms of anxiety and depression and, on occasion, had panic attacks into the years 2012 and 2013. The plaintiff attributed these conditions to the transport accident.[31]
[31]PCB 20 – 21
41 Ms Colman then stated:
“3. My contact with Belinda Ozsoy has only occurred since the time following her motor vehicle accident, so I am unable to comment on the extent to which her psychiatric condition is related to the motor vehicle accident. Her full medical history from her general practitioner, may provide a better indication of this. Belinda reports herself that her anxiety has become debilitating only since the motor Vehicle accident.”[32]
[32]PCB 20 – 21
42 It is clear on the evidence that the plaintiff has attended Ms Colman on a number of occasions since 2013. It would have been of assistance to the Court if a report from the psychologist had been tendered in a more up-to-date form so that a proper assessment could be made of the level of aggravation to the plaintiff’s psychological and psychiatric symptoms.
Dr Leon Le Leu, occupational physician
43 The plaintiff was examined by Dr Le Leu and he prepared a report dated 29 August 2013.
44 In relation to the plaintiff’s psychological symptoms, Dr Le Leu noted a history that she had been depressed prior to the transport accident. He noted that her father had died when the plaintiff was nineteen years old. He noted that a friend had gone overseas some five months prior to the transport accident and this had caused a lot of anxiety and sadness to the plaintiff. The plaintiff had been prescribed Effexor by her general practitioner. In her history, the plaintiff told Dr Le Leu that she had been seen by Ms Colleen Colman, psychologist, and also a psychiatrist, Dr Nathan Serry.[33]
[33]PCB 26
45 In summarising the plaintiff’s psychological and psychiatric condition, Dr Le Leu noted that the plaintiff had previously had depression when a friend of hers left for overseas suddenly.[34] He also noted that the plaintiff had been referred for depression on 3 October 2007 and that the plaintiff had been assaulted in June of 2008.[35] Dr Le Leu’s report is very dated and of little assistance in my assessment of the difference between the plaintiff’s symptoms prior to the transport accident and the current position.
[34]PCB 29
[35]PCB 30
Dr Nathan Serry, consultant psychiatrist
46 Dr Serry prepared two medico-legal reports dated 23 April 2012 and 27 September 2012. These reports were prepared for a psychiatric impairment assessment basis.
47 In his initial report of April 2012, Dr Serry took a history from the plaintiff that she had had a pre-existing anxiety approximately six months prior to the transport accident. The plaintiff stated the basis for her anxiety was that a close friend had suddenly gone overseas. The history was that the plaintiff had been prescribed Effexor at 75 milligrams per day.[36] Dr Serry noted that the plaintiff’s past psychiatric history related to anxiety in the six months before the transport accident, although this appears to have been reasonably well controlled by Effexor at a dose of 75 milligrams per day.[37]
[36]PCB 112 – 113
[37]PCB 114
48 In Dr Serry’s opinion the plaintiff suffered a psychiatric illness of Post-Traumatic Stress Disorder of moderate severity resulting from the subject transport accident. He noted that the plaintiff had developed secondary Depression which was also part of her Post-Traumatic Stress Disorder diagnosis.[38]
[38]PCB 115
49 In his second report dated 27 September 2012, Dr Serry had a more extensive history provided to him by the plaintiff’s then solicitors in relation to previous psychiatric treatment. Dr Serry amended his original assessment of the plaintiff and attributed a greater proportion of the plaintiff’s psychiatric impairment to a pre-existing condition.[39] Dr Serry continued to accept the plaintiff’s history that she was taken 75 milligrams of Effexor at the time of the transport accident. The plaintiff’s general practitioner had increased the prescription of Effexor from 75 milligrams per day to 150 milligrams per day on 3 April 2008. The reason for the increase in medication was that the plaintiff was complaining to her general practitioner at that time that she was not improving and that her mood was still low.[40]
[39]PCB 121
[40]DCB 191
50 Dr Serry’s reports are now dated, they were made subsequent to the transport accident and the fact that he did not have a full detailed history of the plaintiff’s prior psychiatric history, diminish the reliability of his reports in assessing the plaintiff’s current psychiatric and psychological status.
Dr Albert Kaplan, psychiatrist
51 Dr Kaplan assessed the plaintiff for medico-legal purposes and prepared a report dated 17 October 2012. I note in that report he refers to a previous report that he had prepared dated 10 June 2010 and 10 April 2011. Dr Kaplan was provided with some further history prior to his preparation of the report dated 17 October 2012. He noted that the entry in the general practitioner’s notes dated 3 April 2008 would indicate that the plaintiff was significantly depressed at that time. He went on to say that it was difficult to provide an opinion about the matter and the effect of the abusive relationship by the plaintiff’s former partner and the ultimate relationship breakdown after the transport accident without him having the opportunity to directly address these matters with the plaintiff.[41] Nevertheless, Dr Kaplan went on to apportion the responsibility for the plaintiff’s psychiatric condition predominantly to the transport accident.
[41]PCB 92
52 I do not accept this opinion of Dr Kaplan, because he has not canvassed the relevant and full pre-existing psychiatric condition and treatment with the plaintiff. If he was advised or told by her of the full history, including the treatment that she had received and the hospital admissions, Mr Kaplan would have been in a better position to properly assess the plaintiff as she was then, in October 2012. Further, I have to make the assessment of the plaintiff as she appears in the Court at this time, not some four-and-a-half years ago. For those reasons, I disregard the opinion of Dr Kaplan.
Dr Richard Waluk, general practitioner
53 Dr Waluk was asked to assess the plaintiff for medico-legal purposes and he prepared a report dated 6 February 2017. He took a history from the plaintiff that the transport accident deeply affected her mental state. The plaintiff stated that she had become irritable, argumentative, moody and her relationship with her boyfriend and her mother deteriorated. She stated there was a lot of stress and she was repeatedly abused by her boyfriend, both verbally and physically.[42]
[42]PCB 125-126
54 Dr Waluk noted a mental impairment assessment in his report. He noted that the plaintiff’s condition of depression and anxiety had been pre-existing and was aggravated by the transport accident. Dr Waluk attributed the majority of the plaintiff’s psychiatric difficulties to the transport accident.
55 Dr Waluk is not a qualified psychiatrist. I accept that he is a qualified medical examiner but the opinions of the psychiatrists in this case are far more persuasive when assessing the level of aggravation that a transport accident would have on a pre-existing diagnosed condition of depression and anxiety.
Dr Geoffrey Hogan, psychiatrist
56 Dr Geoffrey Hogan is the treating psychiatrist for the plaintiff. Dr Hogan prepared a total of five reports for the purposes of this application. The reports are dated 27 October 2012, 7 April 2013, 18 October 2014, 14 August 2016 and 2 January 2017.
57 In his first report dated 27 October 2012, Dr Hogan noted that the plaintiff had attended him on a total of four occasions prior to preparing the report. The plaintiff had attended on 6 September 2012, 18 September 2012, 2 October 2012 and 24 October 2012. In his history of the plaintiff’s psychiatric illness, Dr Hogan noted that the plaintiff had been on Effexor of 150 milligrams daily since the time of her trip to Turkey. This history is incorrect. The plaintiff had been prescribed 150 milligrams of Effexor prior to the transport accident on the said date. Dr Hogan noted that the plaintiff was seeing her psychologist on a monthly basis.[43] He noted that the plaintiff had never experienced actual flashbacks of the transport accident.[44]
[43]PCB 50
[44]PCB 50
58 In terms of the medication taken by the plaintiff, Dr Hogan noted that she had had mild anxiety symptoms for some months prior to the transport accident for which she had been prescribed Effexor, 75 milligrams daily. This history is incorrect as the plaintiff had been prescribed 150 milligrams of Effexor on 3 April 2008.
59 Dr Hogan noted that prior to the transport accident, the plaintiff had no significant past psychiatric history. He also noted that there was no evidence for other than a sound premorbid personality. He also noted that there was an absence of family history of psychiatric disorder. The notation in respect of no family history of psychiatric disorder is contradicted by an application form signed by Dr Gayle Troedson, who treated the plaintiff’s mother. On 25 January 2002, Dr Troedson signed an application form setting out that the plaintiff’s mother suffered both physical and psychiatric disabilities.[45] In his assessment set out in the first report, Dr Hogan noted that the plaintiff had given a history of dreams related to the transport accident but there was no history of flashbacks.[46]
[45]Exhibit D1
[46]PCB 54
60 Dr Hogan diagnosed the plaintiff as presenting with a Major Depressive Disorder and some post-traumatic features, and increased her antidepressant medication to 220 milligrams of Effexor per day.
61 By October 2012, Dr Hogan had increased the Effexor prescription to 300 milligrams per day.
62 In his report dated 7 April 2013, Dr Hogan noted that he had been given copies of four psychiatric reports from Dr Nathan Serry. I note for completeness that only two of these reports were tendered in this case. In that report, Dr Hogan noted as follows:
“You have raised the question of any pre-existing conditions. It has been noted in my prior report that Mrs Ozsoy was prescribed by her general practitioner a small dose of Efexor-XR because of anxiety symptoms associated with the stress of a friend going overseas some six months prior to her motor vehicle accident. I note that there were no panic attacks present at that time. I continue to take the view that there is not a clear significant or relevant prior psychiatric disorder.”[47]
[47]PCB 58
63 Dr Hogan prepared a report dated 18 October 2014. He noted in that report that the plaintiff was prescribed 375 milligrams of Effexor in July 2013. By the time of his report in October 2014, the plaintiff’s prescription of Effexor was down to 150 milligrams daily. This was the same prescription of Effexor as prior to the transport accident.[48]
[48]PCB 103
64 In his report dated 14 August 2016, Dr Hogan took a history from the plaintiff that she was prescribed 150 milligrams of Pristiq daily in 2014. He increased her prescription of Pristiq to 200 milligrams per day and was seeking to review the plaintiff in two-and-a-half weeks’ time.[49]
[49]PCB 105
65 A final report of Dr Hogan was prepared on 2 January 2017. Most importantly, Dr Hogan had the report from Associate Professor Peter Doherty dated 26 August 2016 for comment. In Associate Professor Doherty’s report, a full and extensive pre-existing psychiatric history was set out.
66 Dr Hogan repeated his history that the plaintiff had been prescribed 375 milligrams of Effexor in June 2013. In July of 2013, the plaintiff had advised Dr Hogan that she was applying for a total and permanent disablement payment from her superannuation fund. There was a fifteen-month break then between 2 July 2013 and 15 October 2014.
67 In October 2014, the plaintiff was still prescribed 150 milligrams of Effexor daily.
68 Dr Hogan then noted the next appointment with the plaintiff was 10 August 2016. That was a twenty-two month gap from the previous appointment.
69 In August 2016, Dr Hogan noted the plaintiff was on Pristiq of 150 milligrams per day.[50] She stated that at stage, she no longer had panic attacks at the shops but that she was anxious and irritable.
[50]PCB 107
70 In November 2016, Dr Hogan increased the plaintiff’s dosage of Pristiq to 250 milligrams daily.[51] He also prescribed Zyprexa as an adjunct antidepressant.
[51]PCB 108
71 Dr Hogan’s final consultation with the plaintiff was on 23 December 2016.
72 In respect of the report of Associate Professor Doherty, Dr Hogan noted that Associate Professor Doherty’s opinion was that no incapacity had resulted in psychiatric injury sustained in the transport accident on the said date. Dr Hogan noted:
“… I would note that the history that I obtained when initially treating Mrs Ozsoy (as expressed in my prior medico-legal reports) was that there was not a significant psychiatric history prior to Mrs Ozsoy’s transport accident. I did take the opportunity to re-question Mrs Ozsoy concerning this matter at her consultation on 23 December 2016. Mrs Ozsoy repeated the history that for six months before the transport accident she had been prescribed by a GP, Efexor-XR 75mg daily. … .”[52]
[52]PCB 109
73 I note that a general practitioner prescribed 150 milligrams daily of Effexor for the plaintiff on 3 April 2008, some three weeks prior to the transport accident.
74 Dr Hogan then goes on to report:
“… I would note that Efexor-XR 75mg daily would not usually be a dose effective for a major depressive episode. I think that Mrs Ozsoy had transient emotional symptoms when a friend went overseas, and on the history given when such had resolved, her then GP had nonetheless insisted she remain on Efexor-XR.”[53]
[53]PCB 109
75 Dr Hogan went on to maintain that there was not a significant psychiatric history prior to the transport accident.
76 Finally, Dr Hogan gave his opinion as follows:
“I would note that Mrs Ozsoy does have chronic and persisting residual major depressive symptoms, variable in severity, and this chronic major depressive disorder does appear to be a result of the transport accident incident.”[54]
[54]PCB 110
77 Dr Hogan was given the detailed report from Associate Professor Doherty, in particular, relating to the previous psychiatric treatment and incidents relative to the plaintiff’s condition. I do not accept that he has adequately explained the extent of the plaintiff’s prior psychiatric condition to the transport accident on 25 April 2008. The plaintiff has not been open and honest with Dr Hogan in giving a full and proper history of her psychiatric symptoms, both before and after the transport accident. Consequently, I am unable to be satisfied, on the basis of Dr Hogan’s opinion, of the level of aggravation to the pre-existing psychiatric condition of the plaintiff which was caused by the transport accident.
78 I note that Dr Hogan has consistently taken a history from the plaintiff that there were no flashbacks in relation to the transport accident. Dr Hogan only describes some of the symptoms set out by the plaintiff as features of Post-Traumatic Stress Disorder. I do not accept the plaintiff has proven, on the balance of probabilities, that she suffers from Post-Traumatic Stress Disorder.
The Defendant’s medical opinions
Professor Geoffrey Metz, consultant physician and gastroenterologist
79 Professor Metz prepared a report dated 31 March 2016.
80 Professor Metz accepted that the constant use of Effexor medication would commonly lead to constipation which in turn leads to bowel irritability.[55] The defendant accepts that the treatment for the plaintiff’s stress by way of medication is a cause of the irritable bowel syndrome suffered by the plaintiff. The real issue in this application is what is causing the stress necessitating the use of medications such as Effexor.
[55]DCB 16
Associate Professor Peter J Doherty, consultant psychiatrist
81 Associate Professor Doherty examined the plaintiff on 26 August 2016 for the purposes of this application. He prepared a report dated 6 October 2016.
82 Associate Professor Doherty had the plaintiff’s Claim Form dated 31 July 2008 and the clinical records of Dr Gayle Troedson, Dr Geoffrey Hogan and First Health Medical Centre. He also had medical reports from Monash Health dated 1 April 2016, Coleen Colman, dated 2 April 2010 and 23 March 2013, the medical reports of Dr Geoffrey Hogan and medical reports of Gayle Troedson.
83 In relation to the plaintiff’s pre-existing psychiatric symptoms, Associate Professor Doherty took the following history:
“… She told me ‘I admit I was a bit anxious’ before the transport accident. She told me that the reason was that she had a friend going overseas and she said that ‘got me off the rails’. She told me she had a ‘stress attack’. She told me that person was ‘like a brother’ to her. She told me the person was going overseas permanently. She told me she did not want to lose the friendship. She told me her mother had some sleeping tablets and she told me ‘I took a few’. She told me that resulted in an ambulance being called and her being taken to Dandenong Hospital. She told me that was about one year before the transport accident. She told me she got upset because of the loss of friendship. She told me they ‘used to be very close, not romantic.
The claimant told me she was still taking tablets at the time of the transport accident. She told me she was ‘a bit snappy’. She told me she was on the antidepressant medication, venlafaxine (Efexor) for about a year prescribed to her by a doctor at a general practice at the First Health Medical Centre. She told me she had not consulted a psychiatrist or a psychologist.”[56]
[56]DCB 18 – 19
84 Associate Professor Doherty took a history from the plaintiff that she had been diagnosed with irritable bowel syndrome in 2009 and that she had a number of surgical procedures in relation to cervical dysplasia after the birth of her first child, and a septoplasty in September 2015. The plaintiff had been admitted to the Dandenong Hospital in November 2015 for the investigation of abdominal pains. The plaintiff stated that she had had a haemorrhoid operation in 2010 and subsequent Botox injection to treat an anal fissure.[57] The plaintiff had also had an appendectomy in November 2008 in Turkey and a miscarriage in January 2009 whilst in Turkey.
[57]DCB 20
85 The plaintiff told Associate Professor Doherty that she had been seeing her general practitioner either weekly or fortnightly.[58] She stated that she was seeing Colleen Colman, psychologist, either every fortnight or every month.[59]
[58]DCB 21
[59]DCB 21
86 Prior to this history of attendance upon the general practitioner and a psychologist being given to Associate Professor Doherty, Dr Gayle Troedson, in a letter dated 10 July 2016, stated as follows:
“Just for the record I have seen Belinda eight times over the last six months. I do not see her on a weekly basis. I also doubt she sees her psychologist fortnightly.”[60]
[60]Exhibit D3
87 In her history to Associate Professor Doherty, the plaintiff said that she did not have nightmares and that there were no traumatic recollections of the transport accident.[61]
[61]DCB 23
88 The plaintiff told Associate Professor Doherty that she was getting down in mood before the transport accident. She said that was because one of her friends was leaving town. She told Associate Professor Doherty her father had died when she was aged nineteen and she took responsibility for that. She said her first marriage did not work.[62]
[62]DCB 25
89 After conducting a psychiatric examination of the plaintiff, Associate Professor Doherty’s opinion was as follows:
“She told me her mood is down and she can be anxious. I considered the claimant’s affect at interview to be euthymic which is normal. There were no objective findings of anxiety. The affect had a normal range and normal reactivity. The affect was well communicated and well modulated. The affect was congruent with her thoughts and conversation, and appropriate to the circumstances of the interview.
…
The claimant was alert, aware, orientated and in clear consciousness. I concluded there were no cognitive impairments. I concluded the claimant’s insight and judgement was unimpaired by any psychiatric condition.”[63]
[63]DCB 25
90 Associate Professor Doherty noted that the plaintiff did not give a history of suffering from nightmares or fears or uncertainty regarding the driving or the circumstances of the transport accident.[64]
[64]DCB 26
91 Associate Professor Doherty noted that the plaintiff continued to take antidepressant medication. In his opinion, the medication of Effexor has now been changed to Pristiq which, in essence, means there is no therapeutic advantage in doing the changeover. There are claimed less side effects with the use of Pristiq.[65]
[65]DCB 26
92 After taking a total consideration of all of the information available in the plaintiff’s history, Associate Professor Doherty opined:
“Should she have met a diagnostic criteria for a major depressive disorder in the past, and it appears that she probably did, and if so that psychiatric condition is now mild in intensity.”[66]
[66]DCB 26
93 Associate Professor Doherty continued:
“… The claimant clearly had significant psychological and psychiatric issues before the transport accident, and the transport accident only increased them. The claimant was embarrassed and disappointed by the transport accident, and the circumstances in which it occurred. She has in (sic) a difficult relationship with her boyfriend, and two months after the transport accident she was physically assaulted leading to charges.
From a diagnostic point of view, at the most, should there have been a diagnosable psychiatric condition prior to the transport accident, that is of a major depressive disorder with features of anxiety then there was a mild aggravation of that following the transport accident and then another aggravation after the assault in June of 2008. In my opinion, that aggravation of the pre-existing psychiatric condition ceased a long time ago, and would have fully resolved when in Turkey in late 2008.”[67]
[67]DCB 26 – 27
94 I accept the opinion of Associate Professor Doherty and his assessment of the plaintiff. Associate Professor Doherty is the only practitioner and medical assessor who has had the full history of the plaintiff’s psychiatric symptoms prior to and after the transport accident. In the course of his assessment he has referred to all of the relevant events and treatments that the plaintiff has had in the period before and subsequent to the transport accident. I accept his assessment that the aggravation of the plaintiff’s psychiatric condition as a result of the transport accident has ceased long ago. I also accept his assessment that the plaintiff’s current psychiatric condition is mild. In short, on the current assessment of the plaintiff’s condition, she fails to satisfy the test for “severe” as required under the Act.
95 In the course of this application, the plaintiff gave evidence that she did not give relevant histories to Associate Professor Doherty. In particular, she stated that she never told Associate Professor Doherty that she had irritable bowel syndrome before the accident. Associate Professor Doherty does not, in his report, say that the plaintiff gave a history of irritable bowel syndrome being diagnosed prior to the transport accident. In fact his history states that she was diagnosed with the condition in late 2009.[68]
[68]DCB 19
96 The plaintiff gave evidence that she never told Associate Professor Doherty that her treating psychiatrist, Dr Hogan, was too focused on medication.[69] In his report, Associate Professor Doherty quotes the plaintiff as saying that she ceased attending Dr Hogan because “… the medication was so high, and he was focussed on medication”.[70]
[69]T31
[70]DCB 21
97 Associate Professor Doherty, in his supplementary report dated 9 February 2017, clearly sets out that he has quoted the plaintiff from the time of his interview with her.[71] I accept that Associate Professor Doherty has accurately recorded the history given to him by the plaintiff at the time of his assessment of her.
[71]DCB 34B
98 In Dr Hogan’s own reports, he reports that he was prescribing 375 milligrams of Effexor to the plaintiff. Dr Hogan had increased the plaintiff’s medication regime from 150 milligrams of Effexor to 375 milligrams of Effexor. It is consistent with the plaintiff’s reporting to Associate Professor Doherty and his accurate recording of that reporting by the Plaintiff.
99 The next issue the plaintiff raised in her history to Associate Professor Doherty was to do with the receipt of Centrelink payments in respect of her mother. The plaintiff denied that she wanted to recommence the carer’s allowance with Centrelink after her mother returned from overseas.[72] Associate Professor Doherty, in his responding report dated 9 February 2017, states that he noted what the plaintiff had said at the time of her assessment.[73] I accept Associate Professor Doherty obtained this history from the plaintiff. The plaintiff, later on in her evidence, stated that that is exactly what happened in terms of her mother going overseas and she resumed receiving the carer’s allowance upon her mother’s return from Turkey.
[72]T31
[73]DCB 34C
100 The plaintiff stated that she never told Associate Professor Doherty that she had no traumatic recollection of the transport accident.[74] The plaintiff has given that history to other medical practitioners referred to in these Reasons. Associate Professor Doherty, in his report responding to this allegation, states that he accurately recorded what the plaintiff had told him, that there was no traumatic recollection of the transport accident. He attached his clinical notes to the report, setting out the response of the plaintiff to the question in respect of any nightmares or traumatic recollections, and the plaintiff’s answer was “no”. Page 12 of the clinical notes has the words “No\m, no trauma”. He noted that the treating psychiatrist, Dr Hogan, in his report dated 27 October 2012, took a history from the plaintiff that she had never experienced flashbacks. I accept that Associate Professor Doherty has accurately recorded the history given to him by the plaintiff.
[74]T32
101 The plaintiff, in her evidence, stated that she never gave a history to Associate Professor Doherty saying that when she was nineteen, her father died and she took responsibility.[75] Associate Professor Doherty, in his answering report dated 9 February 2017, states that the plaintiff used the word “responsibility”. He stated that he did not seek to clarify what she meant by saying that.[76] I accept that Associate Professor Doherty accurately recorded what the plaintiff had told him.
[75]T32
[76]DCB 34C
102 The plaintiff gave evidence that at the time of her interview with Associate Professor Doherty, there were tears and she was distressed.[77] In his report, Associate Professor Doherty set out that in his observations, “there were no tears, distress, perturbation or anguish displayed”. In his answering report dated 9 February 2017, Associate Professor Doherty confirmed that his observations set out in his original report were accurate and he noted that in his clinical notes, that there was no mention of tears by the plaintiff at all.[78] I accept that Associate Professor Doherty has accurately recorded his observations of the plaintiff at the time of his interview and assessment of her. The plaintiff stated that she never told Associate Professor Doherty that she did not have flashbacks. Her evidence was that she constantly has flashbacks. She said she told Associate Professor Doherty she constantly had flashbacks.[79] I accept Associate Professor Doherty accurately has recorded the plaintiff’s history to him that she had no traumatic recollections or nightmares of the transport accident. It is consistent with the history that she has given her own psychiatrist, Dr Hogan.[80]
[77]T33
[78]DCB 34C
[79]T33
[80]DCB 34C
103 The final point the plaintiff took issue with about her history to Associate Professor Doherty was that she did not improve when she went to Turkey. Her evidence was that she continued to buy antidepressants over the counter in Turkey and was claustrophobic there.[81] Associate Professor Doherty sets out in his answering report that this was a conclusion and an assessment of his opinion based on the history that the plaintiff had given him. The history he relied upon was that the plaintiff had stayed in Turkey longer than expected, had formed a relationship, had become pregnant and engaged to be married. The plaintiff had ceased psychological treatment when she was in Turkey. This is consistent with the notation by her general practitioner, Gayle Troedson, dated 30 March 2009, where the plaintiff gave a history of having stopped Effexor “four months ago”.[82]
[81]T33-34
[82]DCB 143
104 Dr John Goy, gastroenterologist, in a letter to Dr Troedson dated 20 April 2009, expressed the view that the plaintiff might need to go back onto the antidepressants again.[83] I accept that the plaintiff had improved in her psychiatric and psychological condition markedly whilst in Turkey and that Associate Professor Doherty has properly identified and assessed that to be the case. This is consistent with the observations by the plaintiff’s husband where he said in his affidavit that the plaintiff, upon her return to Australia, was a completely different person. In the statement attached to the affidavit made by Cem Ozsoy, he said as follows:
“… In Turkey, she had liked to go out and do things and she would take some pride in her appearance and wear some make-up, but once we were in Australia something changed. I think everything reminded her more of the accident. Her mood was much more depressed.
Belinda tried to return to work when she arrived in Australia but she became stressed and anxious very easily. She was always worried about something and was extremely tired all the time.”[84]
[83]DCB 69
[84]PCB 14
105 This observation by the plaintiff’s husband is clearly consistent with the assessment made by Associate Professor Doherty that the plaintiff’s psychological and psychiatric condition fluctuates over time with different stressors.
106 The plaintiff was given the opportunity to cross-examine Associate Professor Doherty about the inconsistencies outlined by her about the reporting to Associate Professor Doherty. In final submissions, Mr Dealehr referred to these as “a misunderstanding”. There was no “misunderstanding” in the plaintiff’s evidence. Her evidence was directly in conflict with the reported history taken by Associate Professor Doherty. I prefer Associate Professor Doherty’s accurate reporting of what he was told by the plaintiff at the time of his assessment and the clarifications set out in his further report dated 9 February 2017.
The Plaintiff’s psychiatric treatment prior to the transport accident
107 The plaintiff attended at the Dandenong Emergency Department of Southern Health on 10 July 2007. The plaintiff, when she presented at hospital, had taken some sleeping tablets of her mother’s and required hospitalisation. In the hospital notes, the history given to the doctors was that the plaintiff had had two months of problems with her relationship with her boyfriend. The evidence from the plaintiff was that this related to a friend of hers, who she described as “like a brother”, had suddenly decided to return to Turkey. Her evidence was that there was no relationship beyond the sister-brother relationship.
108 When she attended hospital in July of 2007 she gave a history that she had a marriage breakup when she was eighteen years of age and had received six weeks of counselling for that. It was reported to the doctors that the counselling was not very helpful. The plaintiff denied any ideation of suicide.
109 The plaintiff attended on 1 March 2008 at the Dandenong Emergency Department of Southern Health. On that occasion, she was requesting to see a psychiatrist with a history of three days of feeling depressed and generally lethargic. At that stage, she was being medicated by Effexor.[85] The plaintiff stated that she had been on 75 milligrams daily of Effexor but that the medication had been reduced to 37.5 milligrams two months prior to her attendance at the hospital.[86] The doctors, on that occasion, noted that the plaintiff was preoccupied with the death of her father some seven years before.[87]
[85]DCB 57A
[86]DCB 58
[87]DCB 58
110 On 1 March 2008, the plaintiff was complaining of feeling lethargic and disorganised in thoughts to the extent where she was unable to do her job properly.[88] The plaintiff’s medication was increased to 75 milligrams of Effexor. She was referred to a psychologist.[89]
[88]DCB 60
[89]DCB 60C
111 On 19 March 2008, the plaintiff was reviewed at Southern Health. She was referred back to her general practitioner with a recommendation of the increase in Effexor.[90]
[90]DCB 60D
112 On 3 April 2008, the plaintiff attended upon her general practitioner. On that occasion, the plaintiff was medicated on 75 milligrams of Effexor. Her general practitioner, Dr Miroslava Vujosevic, increased the medication level to 150 milligrams of Effexor daily. The plaintiff on that occasion was given the telephone number of the CAT Team in case of a crisis, and she was also referred to Dr So Thein, general practitioner, for a mental healthcare plan and referrals.[91]
[91]DCB 191
113 The aforementioned medical treatments and attendances precede the transport accident.
114 On 25 April 2008, the plaintiff was involved in a transport accident. On 29 April 2008, the plaintiff attended her general practitioner complaining of physical injuries to her chest, and multiple bruising. She also gave a history of being stressed. The regime of medication continued on 150 milligrams of Effexor.
115 On 19 June 2008, the plaintiff was assaulted by her then boyfriend.
116 On 20 June 2008, the plaintiff attended her general practitioner, Dr Miroslava Vujosevic, with her complaints of assault. The plaintiff described the assault as a fight with her boyfriend where her hair was pulled, she fell to the ground, she hit her head against the car and her fingers had been bent back. She said that there was no loss of consciousness. The police were involved and her then boyfriend was charged.[92]
[92]DCB 190
117 On 23 June 2008, the plaintiff re-attended at her general practitioner, Dr Miroslava Vujosevic. On that occasion, she referred to the recent transport accident and breaking up with her boyfriend. She stated that she had lost her job and was unable to work or look for work.[93] This is the first time the plaintiff has given a history of losing her job. The employment that she had previously been involved in was at Grant’s Real Estate.
[93]DCB 189
118 The plaintiff, in her evidence, was stating that the reason that she lost her job was due to the transport accident. The timing of her actually losing her job is shortly after the assault by her then boyfriend. Prior to the assault by her boyfriend, the plaintiff had received a letter from her employer, Andrew Grant, dated 11 June 2008. Mr Grant sets out how he was not satisfied with the attitude of the plaintiff to her work. He refers to the fact that the plaintiff did not have a car to attend work and that there were other options such as hiring a taxi or hiring a car to come to work. Mr Grant refers to the plaintiff saying “I have to go and see Felix”. In the course of her evidence, the plaintiff was cross-examined about Felix and who he was. The plaintiff’s evidence was that Felix was a solicitor in the business next door to Grant’s Real Estate and that she was seeking assistance from Felix to obtain the insurance money for her car.
119 The focus of the plaintiff at that time in June 2008 was her inability to be transported by her own car to and from work. There was no mention by her about the psychological or psychiatric effect of the transport accident. The plaintiff has subsequently attributed her loss of employment at Grant’s to the psychiatric and psychological ramifications of the transport accident. I find that the more likely explanation is that the plaintiff did not have any transport to get to and from work and that the incident with her boyfriend with its consequential psychiatric and psychological impact was more relevant to her losing her employment.
120 After the assault by her boyfriend, the plaintiff received further medical advice from Dr Troedson and her general practitioner. The evidence from the plaintiff is that her mother suggested that she take a holiday overseas in Turkey in order to get over her recent problems with her boyfriend. In August of 2008, the plaintiff left Australia and went to Turkey. It was whilst the plaintiff was in Turkey that she ceased taking Effexor. She met her now husband and became engaged to be married. In the course of her time in Turkey, she became pregnant to her husband to be. Unfortunately, that baby miscarried. The plaintiff also had an appendectomy operation whilst in Turkey. The plaintiff returned to Australia in February 2009 to marry her husband and resume life in Australia. She resumed her role as carer for her mother. She was paid the carer’s pension by the Department of Social Security from that time forward.
121 I conclude that based on the prior history of two attendances at hospital for psychiatric and psychological difficulties, the plaintiff has suffered from an ongoing psychological condition from prior to the accident to the present time. The impact of the transport accident on the plaintiff’s psychological condition was transitory as described by Associate Professor Doherty, and that any aggravation to the plaintiff’s psychological condition caused by the transport accident has now passed.
122 The defendant relied upon the K10 assessments relevant to the plaintiff’s psychiatric and psychological condition. On 10 December 2007, the plaintiff’s score on the K10 assessment was 33 out of 50. This assessment was performed before the transport accident.[94]
[94]DCB 50
123 On 27 June 2008, the plaintiff’s K10 assessment was 35 out of 50. This was performed eight days after the assault of the plaintiff by her boyfriend.[95]
[95]DCB 50A
124 On 30 April 2009, the plaintiff’s K10 assessment was 32 out of 50. This assessment was performed some two months after the plaintiff had returned to Australia from Turkey.[96]
[96]DCB 51
125 On 19 February 2010, the plaintiff’s K10 assessment was 28 out of 50.[97]
[97]DCB 52
126 On 21 October 2013, the plaintiff’s K10 assessment was 39 out of 50.[98]
[98]DCB 52A
127 I note that in the entry of Dr Gayle Troedson, general practitioner, dated 21 October 2013, she took a history that the plaintiff was “worried re pregnancy”.[99]
[99]DCB 87
128 Mr Dealehr tendered exhibit P4, which was an entry of Dr Ben Crowther dated 23 September 2013 where a history was taken from the plaintiff of an early pregnancy and she was wishing to terminate due to mental health issues.[100]
[100]Exhibit P4
129 It is clear from the K10 assessments that the plaintiff has an elevated level of anxiety and depression. This level is reasonably consistent over the period of time the K10 assessments have been performed. There are stressors around the times of the assessments which are not related to the transport accident. These tests are consistent with the opinion of Associate Professor Doherty that the plaintiff has a propensity to develop anxiety and depression and that she has had many stressful life events.[101]
[101]DB 27
The credit of the Plaintiff
130 The plaintiff’s application for serious injury certification on the basis of a psychological or psychiatric condition is heavily dependent upon the credibility and reliability of the plaintiff’s evidence. The defendant submitted that the plaintiff was an unreliable witness. Counsel for the plaintiff submitted the plaintiff was honest and open in all her answers in evidence.
131 The plaintiff gave evidence that she was in receipt of a carer’s pension or allowance in respect of her mother.[102] The plaintiff is named as the carer on the application for her mother, Meryem Alacan, for carer payment and or carer allowance.[103] In that application, it is stated that the patient, Meryem Alacan (the mother) has both physical and psychiatric disabilities.[104] In her evidence, the plaintiff explained that she had a responsibility to look after her mother because she was the only child. She stated that she had a responsibility to take her mother to the doctors for high blood pressure and other issues.[105]
[102]T96
[103]Exhibit D1
[104]Exhibit D1
[105]T134 – 135
132 In this application, the plaintiff has given a history to medical treaters that her mother cares for her, her husband and two children. She reported to Colleen Colman, psychologist, that she gets considerable help and practical support from her mother, who lives with her.[106] This history to Colleen Colman is consistent with the histories given to other treating medical practitioners that the plaintiff’s mother is in fact the person who cares for the plaintiff and her children. In a statement signed by Meryem Alacan dated 7 October 2011, she states as follows:
“Since the accident, Belinda has not helped me much around the home. She is always in her room or in bed or just sitting down somewhere. I do the majority of the housework and also help Belinda look after her two young children. Belinda always looks very tired.”[107]
[106]PCB 20
[107]PCB 15A
133 The conflict in these two presentations: one to the Court in this application that the plaintiff is unable to look after herself and depends heavily upon her mother to run the household and care for her family, compared with the plaintiff continuing to present and represent to the Department of Social Services that she is the carer of her mother. This irreconcilable conflict in presentation strikes at the very foundation of the plaintiff’s credibility in this application.
134 The plaintiff was cross-examined about her original claim for physical injury arising from the transport accident. She said:
A:“… I’ve got no issues or nothing diagnosed with my back.
Q:Well, you were until … yesterday morning?---
A:I’ve never said anything about my back.
Q:Your spine?---
A:No.”[108]
[108]T75, L6-10
135 This evidence is in complete contradiction to the particulars of injury filed on behalf of the plaintiff where there was a claim for loss of function of her spine and low back.[109] The plaintiff, in her affidavit sworn 16 December 2016, lists her present symptoms from the transport accident, as “pain and reduced range of movement in [her] lower back”.[110]
[109]PCB 17
[110]PCB 9
136 In her history to Mr Dickens, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant, the plaintiff gave a history to him of thoracolumbar spine pain and the left shoulder blade. She gave a history to Mr Dickens that she had been diagnosed with a slipped disc.[111]
[111]DCB 3
137 The plaintiff gave a history to Associate Professor Doherty that, in respect of the symptoms from the transport accident, “I’m fine”. The plaintiff went on to say that she did have a problem with pain in her coccyx but said that it is “not really present now”.[112]
[112]DCB 24
138 The plaintiff’s history in respect of the alleged spine injury to her arising from the accident and her evidence in this Court were not consistent. This undermines the reliability of the plaintiff’s evidence in this case.
139 The history of the plaintiff’s medication and prescriptions for medication is also an area where her evidence is unreliable. The plaintiff denied that her prescription of Effexor had been increased to 150 milligrams prior to the transport accident. When she was challenged about this, the plaintiff then said that she did not take the prescribed amount of Effexor at 150 milligrams per day. I do not accept the plaintiff’s evidence on this point.
140 The plaintiff stated to Associate Professor Doherty, when assessed, that she attended her general practitioner either weekly or fortnightly. She went on to give a history that she attended upon Colleen Colman every fortnight or every month.[113]
[113]DCB 21
141 Dr Troedson, the plaintiff’s general practitioner, in a letter dated 10 July 2016, stated as follows:
“Just for the record I have seen Belinda 8 times over the last 6 months. I do not see her on a weekly basis. I also doubt she sees her psychologist fortnightly.”[114]
[114]Exhibit D3
142 I note that Associate Professor Doherty assessed the plaintiff on 26 August 2016, some six weeks after the letter prepared by Dr Troedson. The plaintiff has consistently been representing that she has been attending her general practitioner and psychologist more regularly than she actually does. This is an example of the exaggeration the plaintiff has exhibited in the course of her evidence and history to medical practitioners. This exaggeration makes the plaintiff’s evidence and histories to medical practitioners unreliable.
143 Finally, on the issue of the plaintiff’s credibility, the plaintiff attacked the reporting of Associate Professor Doherty. She did this in her evidence prior to being cross-examined. I have previously dealt with the “discrepancies” between what the plaintiff alleged and what Associate Professor Doherty had reported. I accept Associate Professor Doherty’s report and supplementary report is a true and accurate reflection of what transpired in the assessment between Associate Professor Doherty and the plaintiff on 26 August 2016.
144 In the course of this hearing, the defendant, in its attack on the credit of the plaintiff, played and tendered three separate DVD films of surveillance of the plaintiff. The three DVD films were tendered as exhibit D2.
145 The Court of Appeal has, in the authority of Church v Echuca Regional Health,[115] set out the caution with which video surveillance films are to be approached when assessing the credibility of a plaintiff. I take into account the comments and directions set down in that authority when assessing the plaintiff in this case.
[115](2008) 20 VR 566
146 The defendant showed video surveillance film of the plaintiff in the course of the application for serious injury. The first surveillance film taken of the plaintiff was on 30 September 2014 and 4 October 2014. The second DVD shown to the plaintiff was also taken on those dates. The plaintiff gave evidence that she had seen these DVDs prior to giving evidence in this proceeding.
147 The third DVD was taken of the plaintiff on 4 March 2016. The plaintiff gave evidence that she had not seen that surveillance film prior to giving her evidence in this proceeding.[116]
[116]T111
148 In a case such as this where the plaintiff is claiming to suffer from a severe long-term mental or severe long-term behavioural disturbance or disorder, the usefulness of surveillance film is limited in assessing the plaintiff’s condition or credibility. Nevertheless, the plaintiff swore, in her affidavit dated 4 December 2016,[117] as follows:
“Since the accident I dislike going to the shops or out in public on my own. I try to avoid crowds. When I am in a shopping centre I feel like I am in an enclosed environment and I want to scream. I feel safer and less anxious if my mother or husband is with me. If I do need something from the supermarket, I will go to the less-crowded, local supermarket and only for a brief time. I also become stressed and anxious if I am required to go to an unfamiliar place, especially if I have not had any time to plan for the trip.”
[117]PCB 9B, paragraph [49]
149 The film of the plaintiff shows her attending a shopping centre without any apparent concern or anxiety. To a casual observer, the plaintiff would appear to be a woman with her partner and two young children on a shopping outing. On 4 March 2016, the plaintiff is at a service station on her own, filling up her jeep motor vehicle with fuel. There does not appear anything unusual in the plaintiff’s behaviour on that occasion.
150 The surveillance film shows the plaintiff on three separate occasions going about her life in public areas in a normal manner. I note that she attended her general practitioner after becoming aware of surveillance film in 2016 and asked to be referred back to Dr Hogan, her psychiatrist. The plaintiff has attended Dr Hogan from 10 August 2016 to 23 December 2016.
151 I conclude that the plaintiff is not a reliable witness and is given to exaggeration to further her application in this case. The plaintiff has focused in her evidence that all of her problems stem from the transport accident. That conclusion is in contradiction to the objective evidence relating to the plaintiff’s life and conditions prior to and subsequent to the transport accident.
Estoppel argument – Ansett v Taylor[118]
[118][2006] VSCA 171
152 In this proceeding, the plaintiff tendered a letter from the Transport Accident Commission to Simon Legal dated 7 February 2017 and its enclosure from the Transport Accident Commission to the plaintiff dated 4 August 2016.[119]
[119]Exhibit P3
153 The defendant tendered a letter dated 10 July 2016 from Dr Troedson, the plaintiff’s general practitioner, to the Transport Accident Commission.[120] The issue of causation of the plaintiff’s psychiatric condition is a very complex one.
[120]Exhibit D3
154 As I understand the plaintiff’s counsel’s argument, the plaintiff relied on these letters, exhibit P3, as an admission by the Transport Accident Commission that the plaintiff’s psychiatric condition was caused by the transport accident on 25 April 2008. He relied on the authority of Ansett v Taylor to support that submission. The decision in Ansett v Taylor has been later considered by the Court of Appeal in Transport Accident Commission v Florrimell.[121] In that decision, Tate JA stated:[122]
“However, Ansett v Taylor was concerned only with the question whether the prior acceptance by the WorkCover Authority, under s 104B(2) of the Accident Compensation Act 1985, of a worker’s claim under s 98C for lump sum compensation for non-economic loss in respect of an injury resulting in permanent impairment established conclusively that the worker had sustained compensable injury. The court held that it did not so conclusively establish that a compensable injury had occurred, but such a prior acceptance should be regarded as having evidentiary value as amounting to a very significant admission by the Authority that the compensable injury was sustained.
In my view, those circumstances are far removed from the proposition that a payment by TAC for various procedures is to treated as evidence of an admission on the subject of causation. The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of the information obtained from the very procedure that it paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”
[121][2013] VSCA 247
[122]At paragraphs [44] and [45]
155 Mr Dealehr submitted that at the time the Transport Accident Commission sent the letter dated 7 February 2017, it had in its possession the reports of Dr Hogan dated 2 January 2017 and Associate Professor Doherty’s report dated 6 October 2016. Dr Hogan’s opinion was that the plaintiff’s current psychiatric condition was due to the transport accident in April of 2008. Associate Professor Doherty’s opinion was that there was no connection between the plaintiff’s psychiatric condition as at 2016-2017 and the transport accident of April 2008. The submission was that because the Transport Accident Commission, in its letter dated 7 February 2017, approved the psychiatric treatment for the plaintiff, then the Transport Accident Commission had accepted that the transport accident in April 2008 had caused the plaintiff’s current psychiatric condition.
156 An analysis of the correspondence is required to determine this issue. The starting point is the letter from Dr Troedson to the Transport Accident Commission.[123] Dr Troedson refers to “a report from your psychiatrist who does not support” a diagnosis by Dr Hogan of “some features of Post-Traumatic Stress Disorder’”. Dr Troedson then says “I think it is fair Dr Hogan see her again to assess her and comment on this [Post-Traumatic Stress Disorder] and her psychiatric diagnosis”.
[123]Exhibit D3
157 In response to a letter dated 13 May 2016 from Dr Troedson, the Transport Accident Commission approved psychiatric consultations for the plaintiff with Dr Hogan. A referral from Dr Troedson to Dr Hogan dated 13 April 2016 is also referred to by the Transport Accident Commission in the response letter dated 4 August 2016.[124]
[124]Exhibit P3
158 Neither of the documents dated 13 April 2016 or 13 May 2016 were tendered in the course of argument so I do not know the basis for the Transport Accident Commission agreeing to the payment for psychiatric treatment of the plaintiff by Dr Hogan. Nevertheless, it is a decision of the Transport Accident Commission communicated by the Transport Accident Commission on 4 August 2016, which is prior to any report received from Associate Professor Doherty. The letter of 7 February 2017[125] to Simon Legal, does no more than reaffirm the Transport Accident Commission decision of 4 August 2016. The letter from Simon Legal dated 20 January 2017 was not tendered in the course of argument so the context for the Transport Accident Commission response dated 7 February 2017 is not known.
[125]Exhibit P3
159 It is clear that the psychiatric treatment of the plaintiff by Dr Hogan was approved by the Transport Accident Commission from 4 August 2016 onwards. There is no evidence to suggest the Transport Accident Commission ceased approval for that treatment after 4 August 2016.
160 The decision in Florrimell clearly envisages a decision or situation such as the present where the issue of causation is a complex one and that medical opinions may conflict on the issue of causation of the plaintiff’s psychiatric condition. Consistent with the reasoning in Florrimell’s Case, I do not accept that the action by the Transport Accident Commission of approving the treatment of the plaintiff by Dr Hogan amounts to an admission on its part on the issue of causation of the plaintiff’s current psychiatric condition.
Conclusion
161 In conclusion, I find that the plaintiff has failed to establish that her psychiatric and psychological condition was aggravated by the transport accident which occurred on 25 April 2008 and continues to the present time. I accept Associate Professor Doherty’s opinion that the aggravation that occurred to the plaintiff’s psychiatric condition as a result of the transport accident has now passed and the plaintiff has returned to her pre-accident psychiatric state with other complicating stressor factors affecting her now.
162 The plaintiff has failed to establish, on the balance of probabilities, that the consequences of a psychiatric injury to her have been aggravated to the extent of being “severe” and her application is dismissed.
163 I will hear the parties on costs.
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