Paik v TAC

[2018] VCC 1415

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
Not Restricted
Suitable for Publication

SEROIUS INJURY

Case No. CI-17-03761

GURPREET PAIK	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4,5,6 September 2018
DATE OF JUDGMENT:	7 September 2018
CASE MAY BE CITED AS:	Paik v TAC
MEDIUM NEUTRAL CITATION:	[2018] VCC 1415

REASONS FOR JUDGMENT
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Subject:  Accident Compensation
Catchwords:            Serious injury –paragraph (c)
Legislation Cited: Transport Accident Act 1986
Cases Cited:            
Judgment:                Leave to bring proceedings

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Purcell SC with Ms M Lang	Slater and Gordon
For the Defendant	Mr P Elliott QC with Ms V Katotas	Solicitor to TAC

HIS HONOUR:

1       On 9 February 2014 the plaintiff was involved in a frightening transport accident  in Doncaster. She passed through an intersection with a green light and another vehicle drove against a red light and collided with her car so forcefully that it caused her car to collide with another vehicle travelling in the intersection. She was twenty one years old at the time.

2       She was taken to Box Hill Hospital and she had a number of areas of physical injury. These included her right thigh and leg, right hip, shoulder, scalp  and wrist. Her right thumb was fractured. Also her neck and back were sore. A tear in the meniscus and chondromalacia of her patella were right knee injuries.  She was given very strong painkillers and eventually discharged on crutches.[1]

[1]Plaintiff’s Court Book(PCB)9-10

3       Treatment was then taken over the next day when she went to her local practitioner, Dr Wardlaw, in Doncaster near where she lived at the time. Treatment for organic injuries included different radiological tests, medications,  specialist hand therapist, occupational therapist  and orthopaedic surgeon referrals as well as physiotherapy.[2]  Her complaints of constant pain and symptoms in these various areas have continued right up to the present time. From the very start Dr Wardlaw saw signs of possible mental or psychological problems as he recorded “persistent anxiety and some panic symptoms”.[3]

[2]Exhibit 1,PCB10-31

[3]PCB31A

4       There is no contest and the clear weight of the medical evidence across both court books is that over time it  has become a psychologically-based pain condition that she suffers from rather than any major organic damage to these various body parts. Accordingly this claim relies on a paragraph (c) severe long term mental or behavioural disturbance or disorder and not on any paragraph (a) physical or organic injury.

5       The particular label or diagnostic description of the injury is not that important because doctors on both sides accept she is still suffering after almost five years from a mental or psychologically based  condition. But the most common terms used to describe it  have been “chronic pain syndrome” or “somatoform disorder” with Post Traumatic Disorder also diagnosed.

6       In the end the issue submitted for determination is really a single discrete one. It revolves around the suggestion by number of doctors that she be treated by a psychiatrist and the plaintiff’s decision not to. She has endured a great deal of treatment including from two local general practices, about six types of antidepressant medications that have had adverse effects, multi-disciplinary pain management at Epworth including from psychologists as well as from two private  psychologists.

7       In effect the defence position  here is that her condition is not a “long term” condition that could be described as “severe” as this particular psychiatric treatment has not been availed of so consequently a court could not find that her paragraph ( c) impairment is stable.[4]

[4]Transcript(T)29-33

8       The question in a serious injury application, which is a threshold issue leading to whether the gate way to a damages claim is opened, is really whether her condition is severe and long term. Implicit in that is the question whether the injury to be assessed is stable. Has she proved a severe long term impairment is her task here and that must involve a decision about whether the condition can be treated as essentially stable. I accept her consistent evidence that she is not going to see a psychiatrist for treatment and as well as her reasons for that position.

9       The probability is, given her  decision, the passage of time and the extensive treatments she has undertaken in the past, her condition will not change. On all the evidence I accept it is stable. I also accept her current mental or behavioural condition is long term given the last four and a half to five years and the probability being it will not alter moving forward.  

10      In a damages  trial the focus of much of the evidence and argument presented in this application  would be directed toward the question of  whether or not she has mitigated her damages. In other words, if this was a damages trial, the issue would involve a determination of whether or not  her decision to not go down the path of treatment from a psychiatrist is a reasonable one in all the circumstances.

11      In my opinion that is not an issue that requires a specific decision  in this section 93 application. But if I am wrong on that, less there is any doubt about it and in deference to the evidence and argument over three days, I am satisfied her decision to not see a psychiatrist is  a reasonable one in all the circumstances. My reasons will be obvious from the comments I will make shortly.   

12      “Severe” of course is a higher test than “serious” under the narrative in the Act when judging any impairment by comparison with others in the range of possible impairments. But it needs to be said that the doctors for both parties basically accept the plaintiff as genuine in her complaints. They also accept what she has said about the consequences of her psychologically based paragraph (c) condition in so far as it impacts on her enjoyment of life.

13      No challenge has made to her three affidavits or her husband’s affidavit in terms of the severe impact on her daily life and enjoyment of life that has flowed and continues to flow from her mental condition caused by the accident. There has been no issue about the nature, extent and genuineness of virtually all those consequences deposed to. Nevertheless they have to be proved to be severe and long term and I am satisfied the plaintiff has discharged the onus as to both.

14      An assessment of the plaintiff as a witness was important in this case. From very early on she exhibited signs both by way of demeanour as well as how she dealt with questions of a young woman who is psychologically unwell. In spite of that impediment she nevertheless  impressed as a genuine and reliable witness at all times. She was forthright and straightforward and did not attempt in any way to avoid or get around questions that might have appeared awkward or unhelpful to her claim. She was an honest witness who made some concessions against interest. I accept her evidence about her ongoing complaints of pain and how they constantly intrude into her daily life. I also accept the weight of medical evidence that these are now psychologically based rather than organic. There was no exaggeration.

15      As no issue was taken about her evidence about her constant pain, symptoms and complaints I accept what is set out in detail across the twenty one pages of her three affidavits as well in her husband’s. They do not need elaboration. I will only refer to a few matters that speak of the severity of the consequences for a young lady still only twenty five years old.

16      Firstly, the pain she has suffered  for a period approaching five years and which she still suffers in a number of areas of her body is both constant and widespread. Though it is psychological rather than organic in origin, it is genuine. Its impact on a litany of day to day activities that a young person should be able to just take for granted is obvious from the affidavits.

17      Secondly, the anxiety and panic attacks causing hyperventilation and her heart rate to increase, that have led to an ambulance  being called several times, are indications of a very major condition with severe consequences for anyone but especially one so young. Para-medics had to be called for help within five days of the accident. [5]

[5]Exhibit1p7

18      Thirdly, the very real problems with driving are of themselves severe restrictions. I do not need evidence to convince me that Truganina in the far outer western suburbs of this large city means a young mother would have to drive to virtually get anywhere. Driving is a major problem for her and not to be underestimated in her life.

19      Fourthly, the very concerning changes that have occurred to her personality and how she now sees herself has meant the condition has severely impacted on social  and family life. This has probably been best described in her husband’s affidavit. [6] Of particular concern for a young married couple  is how it has meant “Gurpreet has pulled away from me emotionally”.[7] This is a very severe penalty to pay for a young wife.

[6]PCB28-31

[7]PCB31

20      There are other consequences caused by  her long term, stable, chronic pain condition that when judged against other cases in the range of conditions can be fairly viewed as severe but they do not need further discussion. The four mentioned are just some of those.

21      Turning to the particular question of her not seeing a psychiatrist, it is  apparent that she has been at all times willing to follow advice and undergo treatment if it seemed to help her injuries. She went to two specialist psychologists at the suggestion of her doctor. These were  Ms L Meehan who she saw several times in 2014. Then followed  five  consultations with Ms M Fitzgerald in 2015 after it was suggested she again go to a private psychologist even though she had obtained no benefit from Ms Meehan who was the first one.  She got no relief  from either practitioner and if anything they reinforced her problems in the repetition of symptoms.[8]

[8]Transcript(T)39,51

22      She was also referred to the multi-disciplinary specialist pain management at Epworth. She attended from 19 August to  17  October 2014. That also was no “help at all. Not a thing”.[9] The Epworth  documents indicate at least two specialist psychologists were involved with the plaintiff as part of that team. These were Ms Kelly Chipperfield and Ms Sally Currie.[10] The plaintiff could not recall the latter but was adamant that this treatment was of no assistance. In fact she “ ended up being more upset afterwards” when this psychological treatment was given to her at this specialist Epworth pain clinic.[11] She repeated it did not help and sometimes made her feel worse and that was her consistent description regarding past treatment directed to her paragraph (c) condition.

[9]T42

[10]PCB31J,31K

[11]T78

23      Ms Paik is not a patient who is non-compliant when it comes to treatment suggestions.  The medical materials and especially the extensive clinical notes from the Doncaster clinic when she lived in the eastern suburbs as well as the Hoppers Crossing clinic after she moved to the western suburbs illustrate how numerous treatment suggestions were pursued by her.[12] Some lack of motivation was alluded to back in 2015 by Ms Fitzgerald but that was in the  not unusual context of a patient suffering depression.[13]

[12]Exhibit1

[13]PCB36-37

24      I do not consider she lacks motivation regarding treatment nor with respect to  employment. She pursued job options through the TAC WorkFocus agency. She kept searching after they ceased acting in her case in 2016 and in fact  she went out and found a job herself. Over 2017 and this year she has been out of the employment market as she is looking after her eight month old daughter. Not surprisingly counsel for the plaintiff abandoned the application in regard to impairment of earning capacity. Nevertheless this evidence about her efforts to work is consistent with a person who would pursue a treatment suggestion if there was a reasonable prospect of it helping her.

25      Even more recently when the psychiatrist Dr N Serry, who saw her jointly for TAC and for her lawyers, suggested she see a neurologist, a neuropsychologist and a psychiatrist, the plaintiff went off to the first two experts.[14] Consistent with what has said from the start, and it is not only in her affidavits and oral evidence but also in the local doctors’ notes, she has not seen a psychiatrist as she is convinced that would not help. She has made a reasonable decision.  

[14]PCB123

26      Ms Paik is a patient who is in a position to make a reasonable decision on the topic as there have been no less than four psychologists being Ms Meehan, Ms Fitzgerald, Ms Chipperfield and Ms Currie involved at different stages in her treatment. She has been treated at two local clinics where numerous doctors have seen her.

27      She has tried at least six anti-depressant or other medications directed to her mental health and her own evidence and the documents are littered with references supporting her evidence that they have failed to help. The list  included Amitriptyline, Duloxetine(Cymbalta), Mirtazapine, Sertraline, Endronax and Paroxetine. Many clinical notes refer to medications not assisting her.[15] Drugs have at times had very unpleasant side effects. She also spent two months under the multi-disciplinary team at Epworth. Repeatedly she has said none of these treatments have helped and some have even made her worse.  

[15]Exhibit 1 p19,21,24,26,38 Defendant’s Court Book(DCB)67

28      If indeed it is necessary to make a final determination in  a threshold “serious injury” application, which I have concluded it is not, I am satisfied the decision she has made not to go to a psychiatrist is a reasonable one when judged in light of all the medical advice and treatment given to her and the circumstances known to her and affecting her.

29      There has really been no focus on the opinions about her psychological condition due to the doctors on both sides all agreeing about its origin and her genuineness. There have some different labels  put on her injury. Accordingly I will refer to the medical evidence much more briefly than is often required when for example some medical debate rages.

30      The Doncaster general practitioner Dr Wardlaw has only very briefly reported and there is more information contained in his clinical notes. From the very outset a very troubling mental reaction was obvious to this doctor. Only five days after the accident on 14 February 2015 his notes record that an ambulance had to be called because she had a panic attack with hyperventilation. [16] Six days after that, on 20 February, she was suffering “anxiety ++ when car passenger” and at night she had to sleep with the light on as she could not stop thinking about the accident.[17] Within about seven weeks of the accident his patient had agreed to a referral to a psychologist and she went off to see Ms Lisa Meehan.[18] His notes  indicate a seriously mentally unwell patient right from the outset until he ceased  seeing her.  

[16]Exhibit1p7

[17]Exhibit1p8

[18]Exhibit1p10

31      He last saw her about two years ago as she has been living in the western suburbs from about the end of 2016. He did note “unacceptable side-effects” from medications in his clinical notes as already indicated and he had prescribed a very wide range of antidepressants.[19] His last formal report stated “psychological distress are current barriers to resumption of normal activities” and while that is now well out of date, time has proved that nothing has changed in that regard.[20]

[19]Exhibit1p26

[20]PCB31B

32      Obviously he discussed with her on a number of occasions a possible referral to a psychiatrist. But she made it clear to him and he recorded that she did not take up that suggestion because of her not wanting to keep talking about the matter. There is no note of him being in any way critical of her decision. But not having heard him there is the usual problem of trying to understand brief computer driven notes that could not possibly record anything like the full discussion between doctor and patient. However his notes must be put in a context of her having already undergone treatment from two psychologists, as well as the specialist pain management team at Epworth and the many  medications he prescribed for her and all without success .[21]

[21]Exhibit1p24,25

33      No report has been provided from Ms Meehan and I was invited to draw an adverse inference by the defendant. I am not prepared to do so as the attendances on her were back in 2014 and any material would be quite out of date when I am required to make an assessment now more than four and half years later. I also have the clear evidence of the plaintiff that her therapy did not help and that  is evidence I accept.

34      I have already made some comments about the Epworth pain management documentation but in a formal report it was noted that the patient had suffered “a significant emotional response to the accident” and needed psychological treatment.[22] In virtually the  last comment made in the final discharge document the Epworth team thought she needed to go to a private psychologist even though in the past psychological sessions had been “distressing”.[23] In spite of that unfortunate experience she was still motivated enough to go off to see Mary Fitzgerald in 2015 who gave her further psychological treatment.

[22]PCB31D

[23]PCB31O

35      When she saw Ms Fitzgerald PTSD was diagnosed with anxiety and depression and a further five sessions were available. However, not surprisingly given the history of lack of assistance she had experienced, the patient became somewhat reluctant to make further psychological appointments. Ms Fitzgerald said that the patient may need to consider taking antidepressants again but clearly Dr Wardlaw had already gone  to great lengths to administer that sort of treatment with a singular lack of success. Ms Fitzgerald also “suggested a possible referral to a psychiatrist” but it was not put any higher than that.[24]

[24]PCB37

36      Dr Zin, from her current local clinic at Hoppers Crossing, has provided a report that he personally started seeing her in March 2017. However he really does not say anything about her medical condition except for ongoing pain. He was dealing mainly with her pregnancy over the last several years.[25] His notes do refer to pain complaints arising from the transport accident but he  does not take the serious injury application any further.

[25]PCB51,Exhibit1

37      TAC and the plaintiff’s solicitors somehow  engaged Dr N Serry in 2015 in a joint capacity. He is a psychiatrist and he found Ms Paik to be “…a clear and straight forward historian who presented information without embellishment… she appeared rather flat and depressed.”[26] This was precisely how I found the witness after both observing and hearing her. Dr Serry repeated these favourable impressions of her when he saw her again in January and July this year.[27]

[26]PCB120

[27]PCB130,140

38      Similarly his diagnosis of somatic symptom disorder and a chronic adjustment disorder with anxious and depressed mood and PTSD remained the same across those years. He thought she had suffered a “substantial psychiatric reaction”.[28] He reported her mental condition meant “There has been a very substantial change to your clients lifestyle”. [29] He thought it important that she  see a psychiatrist

[28]PCB121

[29]PCB122

39      When he saw her in January this year he repeated that  she should be referred to a psychiatrist, a neurologist and a neuropsychologist.[30] By the time she saw him again in July, reports had been obtained from a neurologist and a neuropsychologist but as already discussed  and for reasons that I accept  she has not seen a psychiatrist. In his last report Dr Serry recorded over some three pages or so a very long list of severe impacts or consequences that have been visited on this young plaintiff as a result of her somatic symptom disorder and  chronic pain problems and PTSD.[31] Her prognosis had gone from “mixed” in 2015 to “guarded” in July 2018.[32]

[30]PCB132

[31]PCB137-139

[32]PCB123,142

40      In this very recent July 2018 report  he made an interesting comment in dealing with her forgetfulness, reduced attention span, impaired cognitive organisation and her tendency to be error prone. He said “Insight was coloured by anxious concerns and negative cognitions.”[33] I have not heard from this doctor, nor any doctor for that matter, but I  take this evidence to amount to saying that any decision she has to make, such as about seeing a psychiatrist, is handicapped by her limited insight and understanding as these limitations are part and parcel of her mental condition. I will mention Dr Hayman’s comments about this as he was more specific in regard to what this deficiency might mean for Ms Paik.

[33]PCB140

41      As well has tendering all the clinical notes in exhibit 1 the defendant had two reports from Professor G Littlejohn, rheumatologist. One was in 2015 and the other 2018.[34] He diagnosed what everyone else has said that namely she had clinical features of a chronic pain syndrome and psychological factors were playing a significant role in her fibromyalgia and chronic pain syndromes.[35]He thought a return to a psychologist would be beneficial but there seemed to be limited if any optimism as this was  to “…hopefully facilitate some improvement in her situation”.[36] More to the point he ended by saying her condition was stable. [37]

[34]DCB4,17

[35]DCB23

[36]DCB24

[37]DCB32

42      In January 2018 Dr B Hayman, psychiatrist , saw Ms Paik for TAC. He found her co-operative. He made these comments about aspects of her condition:   “Her insight was poor. She viewed her issues in largely physical terms. She believes she had some undiagnosed medical issues from the motor vehicle accident. She was disinclined to psychological or psychiatric treatment but would accept them were they of clear benefit. She feels the main focus should be on her physical state.”[38] This was an opinion that, probably along the same lines as Dr Serry’s about insight, seems to   amount to saying that her mental condition of itself causes her to have a lack of insight and a full appreciation of the facts as  might exist in a mentally healthy person.

[38]DCB38

43      This is another reason why, if I was required to make a finding about the reasonableness of her decision not to go to a psychiatrist, I would accept she has acted reasonably. Her insight and lack of understanding are caused by her psychological condition. As I understand him, what he is saying is that it is partly her mental illness that leads her to the decision she has made as “She appears to view her issues in relatively simple terms and in her view, she feels significant organic issues may have been missed. This also lends itself to her disinclination to deal with psychological treatment which she feels only makes things worse.”[39]

[39]DCB40

44      Dr Hayman also found no exaggeration or feigning on her part and he considered she remained “significantly incapacitated” by her somatic symptom disorder with predominant pain.[40] Her condition was ongoing if not worsening and he thought a multi-disciplinary pain approach, antidepressant medication and seeing a psychiatrist were advisable. She has of course tried expert multi-disciplinary pain management at Epworth and a plethora of antidepressants but  in vain.

[40]DCB40

45      What is of more relevance to the task at hand is that in spite of the comments he made about future treatment suggestions, he stated “Her condition has stabilised”.[41]

[41]DCB40

46      Finally,  on the topic of whether or not her condition can be considered stable,  the state of the evidence is such that given the treatment she has undergone the probabilities are her condition would not be any different even if she had have gone to psychiatrist in the past or if she went now.  There are basically  suggestions by different practitioners faced with a chronic condition that has been resistant to treatment from experts. They are not much more than suggestions. It is not uncommon in this jurisdiction to hear  medical advice especially in relation to a simple everyday surgical procedure that goes well beyond a treatment suggestion in terms of a very probable benefit. That is not the case here.

47      For the reasons set out she has proved her severe long term mental or behavioural disturbance or disorder and I grant leave to bring proceedings.