Panayiotis v Greg Myers
[2009] VCC 1020
•27 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-06-04095
| THEODORA PANAYIOTIS | Plaintiff |
| v | |
| GREG MYERS | Firstnamed Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Secondnamed Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 and 14 May 2009 |
| DATE OF JUDGMENT: | 27 August 2009 |
| CASE MAY BE CITED AS: | Panayiotis v Greg Myers and Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1020 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s.93(4)(d) – application for leave to issue proceedings – plaintiff self-represented – difficulties created by same – application based upon the paragraphs (a) and (c) of the definition of serious injury, but application treated as relying principally upon paragraph (c) – accident of no great magnitude – prior psychiatric history – aggravation and/or vulnerability – subsequent exhaustive amount of treatment – whether “severe” test satisfied – factors to be considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms M. Britbart | Solicitor to the Transport Accident Commission. |
| HIS HONOUR: |
General Background
1 This matter comes before me by way of Originating Motion pursuant to s.93(4)(d) of the Transport Accident Act 1986, hereinafter referred to as “the Act”. The plaintiff is seeking leave to bring proceedings in respect of an alleged transport accident occurring on 14 November 2000. The plaintiff was on foot and was removing bags of shopping from a trolley to the rear seat area of her car. The firstnamed defendant was the driver of a small truck which allegedly struck the shopping trolley and impacted upon the plaintiff. The firstnamed defendant and secondnamed defendant were jointly represented.
2 One of the complicating factors of considerable significance in this matter was that the plaintiff opted to represent herself, and could not be persuaded to the contrary. It would appear that the plaintiff previously, and at different times, had two firms of solicitors represent her, and terminated the services of each of them. As stated, she was not amenable to the suggestion that she obtain legal representation in a matter such as this.
3 I appreciate that the plaintiff has well qualified children, one of whom is a lawyer. That daughter has apparently been of assistance to the plaintiff in doing such things as drafting the supporting affidavit. However, despite this background assistance, I am far from convinced that the plaintiff understood the nature of the hearing. I did my best to explain it, using examples such as having to pass a test before moving on to the next stage, university entrance examinations (referring to her daughter’s) and the like. Whether or not this message got through is difficult to say. Initially, the plaintiff gave such answers as, “I am standing for the truth” and, “The Judge will see the truth”. To add to the difficulties, whilst the plaintiff did not require an interpreter, her English was far from perfect, and she herself said at the outset words to the effect that she would not understand all the words said in court. Nevertheless, despite advice, she was adamant that she would represent herself.
4 A further complication occurred after the conclusion of the case and my reservation of my decision. There had been no suggestion of anything by way of written submissions, further material or the like. The plaintiff sent to me in chambers a collection of further material. It was addressed to me personally. Upon opening the large envelope, I guessed, correctly as it turns out, the nature of the contents and handed it to my associate without examining the documents in question. He confirmed that the plaintiff had indeed forwarded further material which he described in broad terms as relating to her case and her condition. This caused me to reconvene the parties and explain to Ms Britbart of counsel, who was appearing on behalf of the defendants, what had occurred. She obtained sensible instructions that I could proceed to judgment and the documents were returned to the plaintiff without having been read by me.
5 Apart from illustrating one of the pitfalls of self-representation in matters such as this, reference to this particular episode also gives me the opportunity to repeat what I said from the Bench in relation to the manner in which Ms Britbart conducted this case. From my experience at VCAT, I can say with some confidence that cases where there is self-representation on one side and legal representation on the other can be productive of significant headaches. The manner in which Ms Britbart handled the situation was exemplary. Whilst firmly representing the interests of her client, she displayed great patience and common sense, and was of very considerable assistance to the court.
6 The plaintiff gave evidence, adopted her affidavit of 28 January 2009, and was cross examined. At the end of cross examination the plaintiff was also given the opportunity to respond to matters that had arisen, this being the equivalent of re-examination. A joint court book had been prepared and was placed in evidence. Surveillance material was also tendered. Other than that of the plaintiff, no oral evidence was adduced. This was a very sensible way in which to handle the case.
7 In the absence of representation for the plaintiff and given her very limited understanding of what was occurring, other aspects of her application needed a little more exploration than would normally be the case. For example, it became apparent that the plaintiff was a full-time housewife who had not engaged in paid employment for many years. Accordingly, her application was treated as one in respect of leave to bring proceedings solely in respect of pain and suffering damages. Further, her application purported to be one which relied upon s.93(17)(a) and (c) of the Act – in other words, an application based upon both serious long-term impairment or loss of a body function and upon severe long-term mental or severe long-term behavioural disturbance or disorder. It seemed to me from comparatively early in the proceeding that the material in support of the application made it more likely that it was paragraph (c) upon which reliance was principally placed, but I have treated it as a situation where reliance was placed on both paragraphs. However, it seems to me that my initial impression that this was an application based primarily upon a severe long-term mental or behavioural disturbance or disorder was correct.
8 As shall be discussed, the injuries in question arise from an alleged incident or accident occurring on or about 14 November 2000. Certainly the magnitude of anything that occurred on that day was very much in issue. The plaintiff bears the burden of proof in relation to her application.
Factual background
9 The following findings of fact are made for the purpose of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 10 The plaintiff presented as a voluble and at times agitated witness. She certainly seemed to me to be obsessed with her condition, symptoms and medical treatment. Overall, however, I did not form the impression that she was trying to mislead or that she was wilfully embellishing.
11 In a case such as this where, as shall be discussed, non-organic features loom large, it can be difficult to categorise embellishment as being wilful or unconscious, or otherwise to draw a line as to where unconscious embellishment might stop and wilful embellishment commence. However, the conclusion which I have reached in the present case is that the plaintiff was not wilfully embellishing her symptoms when giving evidence, and that, whilst at times she wandered from the point, she was doing her best to provide to the court information which she honestly believed to be correct.
12 Some surveillance material of her was placed before the court, and this had been forwarded to three medical experts examining on behalf of the secondnamed defendant. In each instance the material was forwarded after such expert had initially reported, so that supplementary reports or letters were obtained.
13 Having viewed the material and read the reports of the investigators, Professor Stephen Davis noted that the plaintiff’s presentation on film was very different to her presentation at various medical rooms where she held her right arm in an adducted manner with little movement. He was struck by the discrepancy in her activity levels during surveillance videos and the presentation in medical consulting rooms. I might say that he added that there seemed no doubt that functional/psychological features were very dominant and that pre-injury observations of Dr Stephen James describing an “hysterical personality disorder” were likely to be very relevant.
14 Mr Michael Shannon, orthopaedic surgeon, had diagnosed some physical injuries but a chronic pain syndrome with significant psychological overlay. He was able to view one of the videos (that of September 2008) which showed the plaintiff apparently walking quite comfortably, driving a car and turning the steering wheel using both arms, but, as commented upon by him, not performing any particularly strenuous activity. He remarked:
“I do not believe that the video was particularly helpful in assessing her capacity. Therefore, having examined the records and viewed one of the videos, my opinion is unchanged.”
15 The surveillance material and reports were sent to Dr Entwisle, consultant psychiatrist, but he was not able to view the video tapes due to a lack of suitable equipment. However, he read the surveillance reports and noted that the plaintiff was doing such things as walking, standing, turning her head and neck, reaching out with her right hand and the like. He also saw photographs presumably extracted from the video film. He noted that the documents and photographs contrasted with the plaintiff’s account to him in relation to her incapacity, but concluded as follows:
“Essentially these reports and observations, photos and descriptions do not essentially alter my opinion of this woman who suffers from Chronic Pain Disorder with a strong illness conviction set against previous and various issues in regard to her personality functioning and psychosocial environment.”
16 Thus, two of the secondnamed defendant examining experts were not of the view that such surveillance material as they could examine altered their opinions. Professor Davis had a view more adverse to the plaintiff but nevertheless concluded that “functional/psychological features are very dominant”.
17 I have viewed the video material. In the context of a case such as this, essentially I agree with the opinions expressed by Mr Shannon and Dr Entwisle. Indeed, it could be said that Professor Davis ultimately has arrived at a conclusion that is not dramatically different. The surveillance material reveals a person going about everyday activities which are scarcely strenuous but which display no obviously great incapacity. Such things as the ability to drive a car, displayed in the surveillance, is not something entirely denied to medical examiners - for example, the plaintiff told Mr Shannon that, “She drives very little and generally travels by taxi to appointments”.
18 In summary, as with the secondnamed defendant’s medical examiners, and particularly Mr Shannon and Dr Entwisle, the surveillance material does not cause me to alter my overall impression of the plaintiff or of the genuineness of her complaints.
19 Another matter which had the capacity to impact upon the magnitude of the plaintiff’s symptomatology was the fact that she has revisited Greece on three occasions, and I gather that all of these have been since the subject accident. The capacity to do this might be seen to stand in contrast to the plaintiff’s complaints of incapacity. However, it would seem that the first such trip was because her father was dying, the second because her mother was dying, and the third in order to deal with the estate. On the first trip she was accompanied by her youngest daughter, who took time off from “the law” – presumably her studies. The plaintiff claims that she was given special treatment on the aircraft and was looked after by her siblings upon arrival. In relation to her mother’s death, she travelled on her own but claimed that she spent the entire time with her dying mother other than occasionally leaving the house in order to have a coffee. On the third occasion she stayed at her brother’s house and admitted that she enjoyed the trip because it was good to see her family.
20 The concept of three trips to Greece might not appear to sit comfortably with the symptoms of which the plaintiff complains. Whilst this causes me some misgivings, overall I am not of the view that the plaintiff’s credit was damaged by it. Given the circumstances prevailing and weighing all of this against the medical opinions which shall be discussed, I remain of the view that the plaintiff’s presentation, both to the court and the medical examiners, has essentially been genuine.
(ii)
The plaintiff’s background, training, employment and activities prior to the injury
21 As this application is one solely for leave in respect of pain and suffering damages, the discussion under this heading is more limited than if an application for leave in respect of pecuniary loss damages was also being pursued.
22 The plaintiff was born on 12 December 1945, and is thus 63 years of age. She is a married woman, although there may be some estrangement from her husband, with three adult daughters.
23 The plaintiff was brought up in Crete, where she came from a farming background. Her level of education is not entirely clear, although it would appear that she may have had limited secondary education. In any event, she came to Australia at the age of 17 years. She worked in a shoe factory for a few years, then a chocolate factory, another shoe factory, and in nursing homes. She worked in a nursing home in Kew for approximately 14 years before ceasing in circumstances which were the subject of some discussion, as the question of the plaintiff’s pre-injury health received some attention. It would not appear that she has been engaged in any gainful employment since 1979.
24 Other activities of the plaintiff prior to November 2000 shall be discussed, but it would appear that she was very involved in her local church (the Hellenic Orthodox Parish of Doncaster and Templestowe), was a member of the church committee there and was involved in various charitable endeavours. Doubtless the raising and educating of her daughters also occupied a considerable part of her time. Her husband is a retired public servant.
(iii) The injuries (a) The state of the plaintiff’s health prior to 14 November 2000 25 It is apparent that the plaintiff suffered an injury to her back at her place of employment at the nursing home in Kew in 1979. This occurred when lifting a patient and the plaintiff felt a cracking sensation in her back. This seems to have marked the end of her working career, and resulted in a compensation claim which led to some form of lump sum payment in 1983. Handwritten notes concerning this injury can be found at page 557 of the court book, although the occurrence of this accident and its aftermath are probably more relevant to the plaintiff’s history of mental health.
26 In relation to any pre-existing mental condition, and before dealing with the state of affairs after the 1979 work incident, it is also evident from page 557 of the court book that, following the birth of her third child, the plaintiff had what could be described as some nervous problems. Precisely when these occurred is not clear.
27 However, it is after the 1979 back injury that mental problems of significant magnitude arose. In the preceding five years, the plaintiff was apparently happy and coping. Following the 1979 incident, a mental reaction of some substance occurred, and this seems also to have involved domestic matters.
28 Whilst there is a veritable mountain of medical material in this case, the sequence of events, particularly between 20 and 30 years ago, is not always clear. In addition, some of the handwritten medical notes of that era are particularly difficult to read. In either 1983 or 1984, the plaintiff appears to have been referred by her then treating general practitioner, Dr Digby Park, to Dr Stephen James, psychiatrist. Dr James diagnosed mixed features of depression and anxiety subsequent to the work-related incident of 1979. The plaintiff was frequently tearful, finding it hard to cope, anorexic and on occasions thinking that she would prefer to be dead. Dr James felt that the plaintiff suffered neurotic depression of moderate severity. Dr James believed that the plaintiff suffered from post-accident neurosis, which was described as being notoriously difficult to treat particularly as it had been existing for some five years. He felt that the plaintiff was well-entrenched in the sick role.
29 In 1988 Dr James reported to Dr Hugh Fitzpatrick of the Luck Street Clinic, Eltham. The plaintiff appears to have attended at that clinic thereafter. Dr Colin Adams has been her principal treater. Dr James reported to Dr Fitzpatrick that joint consultations with the plaintiff and her husband had been of some benefit, but she presented in very much the same way as she had in 1984. He stated the following:-
“I think diagnostically she falls within the category of an hysterical personality disorder and her personality structure is well- entrenched and not significantly amenable to treatment.”
30 He went on to describe her profound sense of loneliness, boredom and dissatisfaction with her life, her domestic situation and other related matters. Dr James was a little apprehensive about placing any medication within reach which might be dangerous if taken in overdose.
31 What happened to the plaintiff thereafter in relation to mental health issues is not entirely clear, but the above does illustrate that mental problems of some magnitude pre-dated the subject accident. Of course, and as shall be discussed, it is only the consequences of the subject accident that are to be considered and, insofar as those consequences represent an aggravation of the pre-existing condition, it is only that additional impediment which is to be taken into account. The approach to be adopted is discussed in cases such as Petkovski v Galletti [1994] 1 VR 436, RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, and in general terms in Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172. It must also be said that establishing the existence of a pre-existing condition or neurosis has the potential to be “a double-edge sword”. What it might also establish is the existence of a vulnerability rendering a plaintiff far more susceptible to impairment and to resultant consequences than might otherwise be the case.
32 I might say that histories, such as that given to Dr Terrence Lim, that the plaintiff has no significant past medical history are incorrect. Some medical examiners have the correct history, or something approaching it, and others do not. Why this is so is unclear, as the plaintiff has made no secret of her history to some experts examining her on behalf of the defendants. For example, to Dr Robert Lefkovits, examining in November 2003, she apparently recounted or provided a long history of depression requiring formal treatment, and with a diagnosis of a personality disorder. However, to Dr Simon Croke, consultant psychiatrist, who, like Dr Lim, has been treating the plaintiff, she denied any psychiatric illness prior to her injuries in 2000, other than some post-natal depression. Dr Croke clearly had other material available to him concerning the plaintiff’s previous psychiatric treatment, although she seems to have said that she could not recall this. The situation, like some of her evidence and submissions, is confusing, but I have not formed the view that she has wilfully misled medical examiners concerning her history. Any inaccuracy or confusion that does exist may well be a manifestation of her underlying condition. The reality of her past seems to have been brought to the attention of relevant examiners by one means or another.
33 The plaintiff also has some history of pre-existing physical injuries, other than the back injury previously mentioned. In 1988 she was diagnosed with bilateral carpal tunnel syndrome, leading to a carpal tunnel release in 1989. In December 1994 she was found to have cervical spondylosis with right arm pain of some 12 months duration. It would appear that x-rays at that time were normal. There was also a reference to aching in the right shoulder in May 1994.
34 The notes of Dr Adams would also indicate that the plaintiff had some problems with dizziness prior to the accident. She described intermittent postural dizziness when attending Dr Adams in August and September 1988, and an entry in April 1997 notes that the plaintiff had concerns in relation to dizziness with changes of the position of her head, this occurring since February of that year. The dizziness is also something of which the plaintiff has complained since the accident, although an organic basis for this would not appear to have been established.
35 I have dealt with the plaintiff’s pre-existing health at some length because of the nature of this case, the manner in which it was presented and the need to identify and isolate the consequences of the incident upon which reliance is placed.
(b) The incident of 14 November 2000 36 I say at the outset that I am satisfied that an incident occurred on or about 14 November 2000 and that, for the purposes of the present application, it was a transport accident within the meaning of the Act. That something constituting such an accident did occur was not really contested, although the magnitude of it and its consequences certainly were. In addition, the defendant seems to have accepted liability for payment of at least medical expenses – see, for example, the letter from the defendant to the plaintiff of 17 January 2002 to be found at page 46 of the joint court book, and the letter of 23 December 2003 in relation to payments for reasonable psychiatric treatment (page 47). In circumstances where no great challenge is mounted to the occurrence of some incident and liability is subsequently accepted, I am prepared to find that an incident occurred on the day in question.
37 I turn now to the actual accident. At approximately 11.45am on the day in question, the plaintiff was loading shopping bags into her vehicle which was in the parking area which services both Franklins Supermarket and Bunnings Warehouse in Eltham. Her vehicle was parked immediately parallel to a bay for shopping trolleys. She claims that, whilst she was placing bags on the back seat of her car, a small truck driven by the firstnamed defendant and which was manoeuvring nearby, hit the plaintiff’s shopping trolley causing her to be effectively pinned between the trolley and the car (see paragraph 5 of her affidavit of 28 January 2009). Her later evidence would suggest that the left side of her body or part thereof in fact went into the back seat area of the car, the back door on the driver’s side being open. She claims that part of the trolley was broken, and that her shopping was spread over the ground. She alleges that the trolley struck her right shoulder with “big force”. Indeed, she gave evidence that it was her right shoulder, right arm and chest that were struck. She did not fall to the ground. She alleges that the other driver stopped when she screamed, helped her, was apologetic and gave her his name and address. Considerable controversy exists in relation to some of these allegations.
38 The affidavit of the firstnamed defendant adopts a statement previously made by him (see joint court book pages 654 and following). This statement paints a different picture. He claims that, on the day in question, he was totally unaware of any contact between his vehicle and a shopping trolley, whilst admitting that he was in the carpark for the purposes of collecting various items from Bunnings. He has sworn that the first he knew of the incident was when someone approached him in Bunnings telling him that something involving his vehicle had occurred in the carpark. He returned to it, and saw a female (the plaintiff) whom he had earlier seen holding a trolley. He then had a conversation with her in which she said that his truck had hit her trolley, injuring her right hand. He has sworn that he told her that, in order for that to have happened, she must have moved her trolley into the path of the rear of his truck, because she was standing next to her vehicle as he drove past. He gave her his name and address, noted that she appeared to be moving in a normal manner and without any sign of injury, and, as she did not require any assistance and appeared to be able to drive herself home, he then departed. The following day the plaintiff contacted him, and, to the best of the firstnamed defendant’s recollection, said that she was suffering from a back injury and wanted her medical expenses paid. He told her that she would have to put in a claim with TAC. He also went to the Eltham Police Station and made a statement. He then heard no more of the matter until 7 November 2007 when papers were served upon him.
39 The plaintiff disputes the firstnamed defendant’s version of events. He was not required to attend for the purposes of cross examination. Where the truth of the matter lies is difficult to determine, and to some extent is probably not the key issue in this application. What I do accept is that some incident, constituting a transport accident, occurred. Who is correct in relation to some of the events that followed is perhaps not of primary importance. The plaintiff admits that she drove her car home whilst asserting that she was “hurting” and that she was initially worried about her chest. Her arm was also painful.
40 I am far from persuaded that this was an impact of great force. It may well be that the firstnamed defendant paid little attention to it. Of course, that is not the end of the matter in a case such as this. An incident did occur, and it is the impairment and consequences that resulted from it that must be considered.
(c) The treatment of the plaintiff following the incident of 14 November 2000 41 The plaintiff claims in her affidavit that, following the incident, she began to experience pain in both shoulders, but particularly in her right shoulder. On the day following the accident she attended the Luck Street Clinic where, because Dr Adams was not available, she saw Dr Fitzpatrick (the notes of the Clinic would indicate that it was actually on 14 November that she attended, as compared with the following day as set out in her affidavit). The notes of that attendance refer to a regional pain syndrome in the right neck and shoulder, the plaintiff having been hit in the right anterior chest by a shopping trolley which was moved by a car pinning her against another car. When seen by Dr Fitzpatrick she was complaining of pain on respiration and with certain movements. Examination revealed some tender ribs on the right hand side and she was prescribed Panadeine Forte. She was seen again on 27 November 2000, still with some pain in the ribs and also in the right shoulder. She felt upset and shaky, but on examination had a full range of shoulder movement.
42 Whilst the plaintiff may have had further attendances at the Clinic thereafter, her first complaint of neck pain was on 23 March 2001 when she was seen by Dr Adams. She was complaining of neck and arm pain on the right, which pain dated from the accident, and stated that she was scared by the fact that the pain had not gone away.
43 A radiological investigation was carried out on 26 March 2001. This revealed, inter alia, early disc narrowing at C5/6 with encroachment into the nerve root exit foramina of C6, particularly to the right. It would seem that physiotherapy was arranged, but was not particularly successful.
44 The plaintiff was referred by Dr Adams to Professor Richard Macdonell, neurologist and clinical neuropsychologist. He reported on 3 April 2001. He noted a restricted range of neck movements in all directions with some voluntary resistance. He suspected that her symptoms resulted from a myofascial type problem, remarking that problems of that type unfortunately tend to have a fairly poor prognosis. He suggested physiotherapy, and also arranged an MRI scan of her neck.
45 Professor Macdonell reported again on 1 May 2001, having reviewed the plaintiff on that day. The MRI scan showed some mild cervical spondylosis but not evidence of compression of nerve roots or foraminal stenosis. He noted that the pain had now spread to the left arm with numbness in both arms. He suspected that her symptoms were part of a myofascial type pain problem and noted that she had suffered a “nervous breakdown” in the past. He also suggested that referral to Dr Lim may become a worthwhile option.
46 Dr Adams also referred the plaintiff to Dr Bernard Worsam, consultant physician, at the Donvale Rehabilitation Hospital. Dr Worsam first saw the plaintiff on 19 July 2001, and received an account of widespread pain (the plaintiff stated that initially she thought some of her problems related to stress concerning her daughter’s wedding). There was severe pain in the full length of her cervical spine and over the plaintiff’s scalp. There was a multitude of other complaints. Dr Worsam reported as follows at court book 27:
“While the x-ray and MRI support the diagnosis of cervical spondylosis, the main problem is a chronic pain syndrome related to physical, mental and social provocations of the accident and initial injuries (including, no doubt, significant soft tissue injury). Her reaction is on a background of personality and longstanding emotional issues… As regards the right shoulder, it seems likely there is a rotator cuff injury present.”
47 Amongst other treatment, an ultrasound examination was recommended.
48 On 31 July 2001 an ultrasound of the right shoulder was performed. The appearances reported were consistent with a moderate sized partial tear, presumably of the supraspinatus tendon.
49 Ultimately the secondnamed defendant accepted liability in respect of proposed surgery to the plaintiff’s right shoulder. The report of Dr Worsam of 1 February 2002 (court book page 27A) refers to a review on that day and upcoming surgery performed by Mr Paxinos on the plaintiff’s right shoulder, this to be performed on 18 February 2002. Dr Worsam noted that the plaintiff was complaining of constant pain in the neck and arms, with the right arm being much worse. A large number of other complaints were made, and the plaintiff also stated that she was very depressed and had ruminated over suicide. Dr Worsam considered that the plaintiff had both neck and shoulder pathology, and was hopeful that the shoulder surgery would result in improvement. He also stated that:
“She has evidence of the myofascial syndrome, this is associated with features of the chronic pain syndrome (and this has occurred in a vulnerable person).”
50 Dr Worsam saw the plaintiff again on 14 March 2002 shortly after the performance of the surgery by Mr Paxinos, and noted that she had restarted some aspects of her rehabilitation program and was performing some exercises. She had undergone subacromial decompression and debridement of a partial thickness tear of the tendon. She was still complaining of constant severe pain in the neck, right arm and shoulder and about the right scapula area. She had various other complaints. Dr Worsam considered that the pain management program at St Vincent’s Pain Management Clinic would be necessary as that would include a heavy emphasis on clinical psychology.
51 The plaintiff’s treatment since then has been exhaustive, and, it would seem, to no avail. On 29 September 2003 Dr Adams reported that, since 29 October 2001, he had seen her 27 times, and 24 of the visits related to her injury. By this time she had undergone treatment at the pain clinic at St Vincent’s Hospital. Intensive treatment continued. For example, in April 2004 she was reviewed by Mr Michael Brighton-Knight, orthopaedic surgeon, at the Repatriation Hospital at Heidelberg. Essentially he could find no evidence of interference with her neurological system, but reported as follows (court book 36):
“There is nothing in this lady’s history or her examination that makes me think she has a focal spinal pathology. This lady clearly has significant issues with respect to her complex pain and she also became teary, discussing the possibility of her drowning herself in the pool if she didn’t get pain relief, and also mentioned that her husband had recently left her. She also requested whole body imaging and requested re-operation on her right shoulder.”
52 Mr Brighton-Knight did not feel that the plaintiff was genuinely suicidal, but also felt that he had no cure for her.
53 The plaintiff was seen at the Barbara Walker Centre for Pain Management at St Vincent’s Hospital. It would seem that she took part in a pain management program there. It would also seem that it was from that Centre that she was referred to Dr Terrence Lim. He is a consultant in rehabilitation pain medicine. The plaintiff saw Dr Lim at the Olympia Private Rehabilitation Hospital in Thornbury.
54 Dr Lim apparently saw the plaintiff in June 2004, and reported to the Barbara Walker Centre that the plaintiff was “an extremely troubled woman significantly disabled by a combination of chronic pain and dizziness following a motor vehicle accident on 14 November 2000”. By this stage, the plaintiff was attending Dr Simon Croke, psychiatrist, fortnightly. Dr Lim diagnosed complex regional pain syndrome affecting the right shoulder; myofascial pain syndrome affecting the muscles of the head, neck and right upper limb; central nervous system pain pathway sensation due to neuropsychological changes; emotional embellishment due to increased disability and dependence leading to increasing entrenchment in a chronic pain syndrome where her whole life is totally focussed on and dominated by her pain; and disabling dizziness with loss of balance.
55 Without going through other experts to whom the plaintiff was referred, she was sent by Dr Lim to Dr Tobie Sacks, consultant psychiatrist, who reported in June 2005 that:
“Mrs Panayiotis seems to be focusing her energies on proving – to her husband, her family, and to TAC – that she is in severe pain and thus, a helpless invalid. …(other factors are then referred to) … I believe that Mrs Panayiotis is not, at present, ready or able to deal with pain. She will, I suggest, require more intensive psychotherapy to address and resolve issues of acceptance and ‘ownership’ of her pain before she is able to confront it. I would advise her to continue seeing her own psychiatrist, Dr Simon Croke, and to raise these issues with him.”
56 Dr Croke reported on 22 May 2008. His report refers to an initial attendance by the plaintiff on 29 March 2004, she having been referred by Dr Adams. He took a history that her problems began in November 2000 when she was struck by a shopping trolley that had been hit by a passing truck and pushed her against her own car. In his report he described such things as the treatment which the plaintiff has undergone by way of trials of anti-depressant medication and psychotherapy, all of these being of limited benefit. His conclusion was as follows:
“I see Ms Panayiotis as significantly psychologically disabled. If it continues that there are no interventions/treatments likely to make a major difference to her physical injuries then I believe she is likely to remain as she is with a severely restricted lifestyle and significant subjective distress.”
57 Dr Croke also referred to the fact that the plaintiff has been diagnosed with complex regional pain syndrome and myofascial pain syndrome. He diagnosed her as suffering from a lower grade, more chronic form of depressed mood and, accepting that past episodes had been more acute, classified her as suffering from a major depressive disorder in partial remission.
58 Bearing in mind that the material concerning treatment of the plaintiff is voluminous, I have attempted to give some outline of the injuries and their treatment particularly in the earlier years following the incident. Hopefully this assists an understanding of the pattern of events and treatment which essentially was set in place in those early years and has not varied greatly since. In other words, there have been no surprising developments in more recent times, and this is so particularly in relation organic injuries.
59 For that reason I do not intend to go through all the medical material in detail. A quick estimate reveals that the plaintiff has had in excess of 20 treating doctors and specialists, the vast of bulk of them being seen by her since the accident. That is not counting radiologists, physiotherapists, or some of the assorted examiners referred to in reports from hospitals and the like. There are literally hundreds of pages of medical records and clinical notes. I do not intend to analyse them all.
60 Suffice to say that the medical picture has changed little over the years, and I shall now turn to some up-to-date material and the issue of diagnosis. This shall also involve consideration of the reports of medico-legal examiners, who, incidentally, were not included in the tally set out above.
(d) The nature of the injury suffered (i) The physical or organic injury 61 Whilst the impact involved in the incident may not have been of enormous magnitude, I am satisfied that the plaintiff did suffer an organic injury as a result of it. I am satisfied that she suffered an injury to the right shoulder, being one to the rotator cuff and involving a tear of the supraspinatus tendon. It was this injury which led to the decompression surgery performed by Mr Paxinos. I note that, on 17 January 2002, the secondnamed defendant accepted liability for this procedure in that it approved funding for it. Whilst such funding may not be conclusive in relation to the question of liability on an application such as this, nevertheless the type of approach adopted by Ashley JA, when dealing when dealing with the Accident Compensation Act 1985 in Ansett Australia & Anor v Taylor [2006] VSCA 171, can be of some assistance. In any event, the link between the incident of 14 November 2000 and the shoulder injury with its subsequent surgery was not the subject of a major challenge.
62 The subsequent course of the organic shoulder injury is more difficult to trace because of supervening factors. Mr Paxinos reviewed the plaintiff some two weeks after surgery, but she failed to attend for subsequent reviews. As a result, Mr Paxinos was unable to make any further observations concerning the progress of the injury. Some improvement seems to have commenced – see the report of Dr Worsam of 14 March 2002 at court book page 28A. However, even then the plaintiff was noted to be despondent, introspective, and focused on her pain, which included severe pain in the neck. Complaints of chronic pain involving the neck and the right shoulder persisted thereafter, and the plaintiff has been seen by a variety of doctors, therapists and the like who have attempted various treatments. It would appear that, from the plaintiff’s perspective, none of these treatments have been successful in bringing an end to or amelioration of the pain.
63 Turning to the current situation in relation to the right shoulder, Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on behalf of her then solicitors in February 2007. He linked the shoulder injury to the accident, referring to the tear in the supraspinatus tendon, but went on to say that:
“What subsequently occurred however, would appear to be more related to the emotional factors than the physical problems. It would appear that she decompensated significantly from the psychological point of view, leading to an enmeshed pain disorder.”
64 Examining the plaintiff in September 2008 for the secondnamed defendant, Mr Michael Shannon, orthopaedic surgeon, on examination found a near normal range of passive movement of the right shoulder, although noting that an ultrasound of 30 April 2004 suggested a possible full thickness tear of the supraspinatus. However, he expressed the view that the plaintiff was suffering from a chronic pain syndrome with significant psychological overlay, and that the prognosis for her physical injuries was probably satisfactory. Mr Shannon also considered other organic injuries, and indeed diagnosed possible soft tissue injuries to the right shoulder, right arm and cervical spine.
65 Examining on behalf of the secondnamed defendant in July 2008, Professor Stephen Davis, neurologist, expressed the opinion that the plaintiff had sustained soft tissue injuries to the chest and presumably the right shoulder, with some strains of the cervical region. He took the view that this could be regarded as aggravation of pre-existing and indeed previously asymptomatic cervical spondylosis with no convincing features of cervical radiculopathy and, as indicated in an MRI scan, no evidence of neural compression. He expressed the view that there were features of diffuse chronic pain syndrome with the clinical picture dominated by psychological features, there being no objectively neurological abnormalities of an organic nature.
66 In dealing with the injury to the right shoulder, I have included, in part, references to a possible soft tissue injury to the cervical spine. As early as May 2001, Professor Macdonell was noting that the plaintiff’s MRI scan showed mild cervical spondylosis but no evidence of compression of nerve roots or foraminal stenosis or indication of pathology affecting the cervical spinal cord. Essentially he could find no neurological explanation for the plaintiff’s symptoms, and considered that the changes shown on the MRI were very common in persons of the her age and that there was no history to suggest that such changes were caused by the accident. As stated, Mr Shannon considered that there had been a possible soft tissue injury to the cervical spine, and also considered that the accident could have aggravated degenerative cervical spondylosis. Professor Davis also raised the possibility of aggravation of pre-existing cervical spondylosis.
67 The possibility of soft tissue injury to the right arm has also been raised. Further, Dr Owen White, neurologist, reported in November 2006 that, following a review of the plaintiff in September 2004, he indicated to Dr Lim that the plaintiff may have a mild post-traumatic labyrinthitis with a considerable psychogenic component. He thought that there was significant depression.
68 As stated, a variety of tests and treatments has been carried out, and I shall not go through them all, but the end result is the effective elimination of an organic basis for the symptomatology other than as set out above. The existence of a right shoulder injury and the possibility of other mild or soft tissue injuries has been discussed. There is nothing to indicate that the plaintiff suffers from an ongoing or long-term organic injury of sufficient magnitude to satisfy the requirements of paragraph (a) of the definition of serious injury contained in s.93(17) of the Act or to satisfy the tests set out in Humphries v Poljak [1992] 2 VR 129. My initial impression was that the success or failure of this application would hinge upon the plaintiff’s ability to satisfy the requirements of paragraph (c) of the definition. This has proved to be the case. I say now that the application insofar as it is based upon paragraph (a) of the definition fails. I am not satisfied that the plaintiff has a serious long-term impairment or loss of a body function.
(ii) Non-organic injury 69 I have already referred at some length to the early treatment of the plaintiff and to the early recognition by medical examiners of such factors as chronic pain syndrome, neuropsychological changes, emotional embellishment, psychological disablement and the like. I will turn now to some comparatively recent assessments and diagnoses, and particularly those dealing with the plaintiff’s mental health and psychological or psychiatric factors.
70 Reporting on 14 March 2007, Dr Clayton Thomas described the plaintiff as enmeshed in a chronic pain state and referred to participation in a psychotherapy situation. The opinion of Dr Simon Croke, the treating psychiatrist, has been referred to earlier. Reporting on 22 May 2008, he referred to the fact that anti-depressants do not appear to have had any significant benefit and that cognitive behavioural therapy had shown limited benefits. He regarded the plaintiff as being significantly psychologically disabled. Dr Tobie Sacks, consultant psychiatrist, who had earlier treated the plaintiff, reported in June 2005. He diagnosed a chronic pain disorder, and regarded the plaintiff as being firmly entrenched in a pattern of illness- affirming behaviours, in which she sought further investigation in relation to every new or changed pain and actively resisted any recommendations to begin a graduated program in normalising her activities. He did not believe that she was ready or able to deal with her pain. The last correspondence from Dr Lim, admittedly somewhat dated given that it is a letter of 5 October 2004, refers to a diagnosis of a combination of chronic pain, post-traumatic labyrinthitis and major emotional reaction to both her chronic pain and dizziness. Even earlier, Dr Nicholas Ingram, consultant psychiatrist, reported to the secondnamed defendant on 10 December 2003. He diagnosed a chronic pain syndrome related to the accident which had resulted in the plaintiff becoming quite disabled and seeing herself as an invalid. Given her history, he felt that there was some pre-existing potential to develop an exaggerated response to injury, and felt at that time that she had significant depressive symptoms.
71 The most recent report dealing with matters of this nature is that of Dr Timothy Entwisle, consultant psychiatrist, who examined the plaintiff on behalf of the secondnamed defendant on 1 December 2008. He diagnosed a chronic pain disorder, describing it as a psychiatric condition in the form of a pain syndrome. He also referred to it as an illness conviction. In a supplementary letter of 10 October 2008, and having read reports of surveillance and material provided by Dr Adams, Dr Entwisle expressed the view that his opinion had essentially not altered, and again describe the plaintiff as suffering from a chronic pain disorder with a strong illness conviction set against previous and various issues in regard to her personality functioning and psychosocial environment.
72 I am satisfied that the plaintiff’s suffers from a psychological or psychiatric injury which could also be described as a mental or behavioural disturbance or disorder. Various descriptions of this condition have been given. Whilst Dr Entwisle was examining on behalf of the secondnamed defendant and thus for medico-legal purposes, his description strikes me as being accurate. He diagnosed a psychiatric condition in the form of a pain syndrome with illness conviction. He appears to have had the benefit of a full history, including that of treatment by Dr James, in addition to having originally the notes Dr Adams and extensive documentation from him prior to writing his supplementary letter. His diagnosis fits with the observations of many examiners, including those investigating organic complaints and concerned with rehabilitation. I am of the view that the opinion of Dr Entwisle – being up-to-date, based upon a considerable amount of material and being consistent with the views of many other examiners – is accurate and is to be preferred. For what it is worth, it is also consistent with the impression conveyed by the behaviour of the plaintiff in the courtroom and the witness box.
(e) “Long-term” 73 I am satisfied that the mental or behavioural disturbance or disorder suffered by the plaintiff is long-term within the meaning of the definition. It has already been in existence for a considerable period. For example, as early as April 2001 Professor Macdonell was reporting that the plaintiff had a myofascial type pain syndrome which had a poor prognosis and was complaining of a loss of pin prick sensation which affected her whole right arm in a global, non-dermatomal distribution. In July of that year she was complaining to Dr Worsam of severe pain in the full length of the cervical spine and a multitude of other symptoms and he was diagnosing a chronic pain syndrome on a background of personality and long-standing emotional issues. In other words, the symptoms and consequences have now been in existence for a period in excess of eight years. That is, of itself, probably sufficient to satisfy the definition. I note that in Cropp v Transport Accident Commission & Anor [1998] 3 VR 357 at 361 Ormiston JA stated that:
“The impairment or loss must be long-term, i.e. at least extending
beyond a few years … ”.
74 Furthermore, the early predictions of a poor prognosis have not only proven accurate, but that continues to be the situation. Turning again to the most recent reports, I have already quoted the opinion of Dr Croke in relation to the likelihood of the plaintiff remaining as she is with a severely restricted lifestyle and significant subjective distress. Mr Shannon, as at 4 September 2008, described the prognosis as poor (and his opinion was not altered by the viewing of the video material). Dr Entwisle – like Mr Shannon, examining in September 2008 – described the prognosis as guarded. Thus, the plaintiff’s prognosis has virtually always been described as poor, and that remains the situation. In those circumstances, it seems to me that the requirement that the subject injury be long-term has been met.
(f) Aggravation 75 I have previously discussed the state of the plaintiff’s health prior to the incident in question. I have little doubt but that the plaintiff, given her history and personality, was vulnerable. This is referred to in various of the medical reports, and I would note the following interesting extract from the report of Dr Clayton Thomas:
“It would appear that the accident of 14 November 2000 tipped her over from being well-functioning to being significantly poorly- functioning. It is not for me to say as to whether this represents an egg shell skull situation or not.”
76 I am aware of the observations in Petkovski and in Skorsis. I am aware of the analysis of the extent of impairment before and after the relevant injury which is referred to in those cases. I am also aware of what could be described as the reservations concerning the adoption of the Petkovski approach in certain circumstances that were expressed by Maxwell P in Spence & Transport Accident Commission v Gomez [2006] VSCA 48.
77 Suffice to say that, for the purposes of the present case, I shall bear in mind the state of the plaintiff’s health prior to the injury and I shall take into account only those consequences which are attributable to the accident.
(g) Aggregation 78 The written submissions of Ms Britbart also address the issue of aggregation. However, I am not of the view that aggregation poses a significant problem in the present case. The situation might be different if I had not already determined that the application insofar as it is based upon paragraph (a) of the definition does not succeed. Certainly, the plaintiff complains of symptoms in various parts of her body and, if paragraph (a) was still being considered, some attention to aggregation may have been required. In the particular circumstances of this case and in the context of an application based upon paragraph (c) aggregation does not seem to be a factor of any great moment.
Ruling 79
I am of the view that the plaintiff has discharged the burden of proof in this matter. She suffers from a mental or behavioural disturbance or disorder. It is long-term. I am also satisfied that it is severe within the meaning of the Act and as interpreted by the Court of Appeal.
80
I will say now, and I will repeat at the end of this judgment less there be any misapprehension, that the fact that the plaintiff has succeeded in this application is in no way meant to be an encouragement to people who are considering representing themselves in applications of this sort. These are quite technical and difficult applications, and the Court of Appeal is required to deal with them frequently. The legislation is complex. The present plaintiff’s application came perilously close to difficulty or failure on various occasions and in circumstances where legal representation might have resulted in the presentation of the application being less hazardous. I would also point out that the plaintiff seems to have had the benefit of a family member who is legally trained to assist her. In any event, I have ultimately reached the conclusion that she has satisfied the burden of proof, even though I remain in considerable doubt as to whether she appreciates the nature of the litigation in which she has been involved or the effects of the outcome.
81
I am of the view that the plaintiff has discharged the burden of proof for the following reasons. They are not listed in order of priority, but are:
(a)
Whilst the plaintiff clearly has a history of past difficulties, and particularly psychiatric problems, and had not been engaged in employment for many years prior to the accident, nevertheless I am of the view that there is a marked contrast between her pre-injury activities and what has occurred since the accident. I refer to her affidavit, and I accept that, in the years prior to the accident, she engaged in long walks and, in particular, devoted a large amount of her time to volunteer work at her local church. I accept that this was for many hours a week, and involved the raising of money for various causes, the arranging and engaging in trips for the elderly and the like. Apart from what is contained in her affidavit, I refer in particular to the letter of Father Elias Kentrotis, parish priest of the Hellenic Orthodox Parish of Doncaster and Templestowe. The letter of Father Kentrotis describes in glowing terms the time and work which the plaintiff had put into the people of the church, including the establishment of a badly needed Senior Citizens’ Club which now has some 300 people attending. Father Kentrotis has described the involvement of the plaintiff, not only in the Senior Citizens’ Club, but also in such activities as the delivering of food, the taking of sick people to doctors, the collection of medication and the like. He has also described her problems in the eight years following the accident. His letter concludes as follows:
“Throughout the last eight years Theodora has had problems with her health suffering chronic pain and depression. I miss having her in the committee, although I understand her problem. I work along with her daughter to slowly assist her to come back and be involved with the people of the Church without having to devote her time to volunteer work, rather so that we may support her. I will try to get her around people and involved in the Church as much as she can be without causing her additional stress and discomfort, and I have come to realise this will be a slow process.”
I accept that, whilst not in employment, the plaintiff was playing the active role in church affairs described by Father Kentrotis. I accept that this is something which she no longer feels able to do and that this is a part of her life which meant a lot to her and which has disappeared. In describing her capacity before the accident, the plaintiff said in her closing address:
“I work for my church, voluntary work … 20 hours a week. I ordered books from New York, I ordered books from Greece. I paid bills, I raised money for several charities my church was involved with. We make so much money for Peter McCallum Clinic. We did money for Royal Childrens’ Hospital. We did money for Madagascar Orphanage and I was in charge for all that.”
Whilst this was something stated in a closing address, I accept it, as it is consistent with the balance of the evidence. I accept the evidence generally concerning the plaintiff’s church activities as being a barometer as to her level of incapacity prior to the accident.
(b)
The material concerning any significant issues involving the plaintiff’s pre-injury physical and mental health, and particularly the latter, effectively ceases some years before the accident. There are references to problems of cervical spondylosis and carpel tunnel syndrome, but, even allowing for a carpel tunnel release it cannot be said that these appear to be of great moment. There are references in the notes of Dr Adams (or his clinic) to the plaintiff being depressed in 1994 and lacking motivation in January 1998 (although that entry also includes the words otherwise feel 100 per cent). However, the entries between 1988 and 14 November 2000 – bearing in mind that a period of approaching three years without an attendance at the Clinic occurs between January 1998 and 14 November 2000 – stand in sharp contrast to the regime of visits and treatment at the Clinic and at various doctors and hospitals in the years following the accident. For example, in the calendar year 2001 the plaintiff appears to have attended at the Clinic in excess of 20 times, without taking into account attendances at other medical and quasi-medical institutions. The entire regime of treatment post-accident stands in stark contrast to what was the situation in the years preceding the accident.
(c)
I accept that the plaintiff’s life is now something of a miserable one in which the effects of the injuries received, as she perceives them, virtually dominate her existence. She has been described as “enmeshed in a chronic pain state” (Dr Clayton Thomas); “likely to remain as she is with a severely restricted lifestyle and significant subjective distress” (Dr Croke); and, as early as December 2003, “Mrs Panayiotis developed a chronic pain syndrome related to her accident and has consequently become quite disabled and sees herself as an invalid” (Dr Ingram). These are some of the post-accident observations that seem to me to summarise the plaintiff’s position and coincide with the impression formed as a result of her presentation in court.
(d)
The plaintiff has now suffered the consequences of the injuries for a period of in excess of eight years. She has undergone numerous medical treatments, some of them invasive. There is no suggestion that she has anything other than normal life expectancy. Her prognosis is, at best, that she will live a miserable life, deprived of the enjoyment of things such as the Church activities in which she was involved and suffering from a variety of widespread pains and symptoms which no amount of physical investigation can alleviate. This will continue for the balance of her life.
82 In summary, I am of the view that, when the definition is considered and when the test as set out in Humphries v Poljak [1992] 2 VR 129 and like cases is applied, the long-term mental or behavioural disturbance or disorder from which the plaintiff suffers is severe. In reaching this conclusion, I am allowing for the fact that, as described in Mobilio v Balliotis & Ors [1998] 3 VR 833 and subsequent authorities, the word “severe” as used in the definition is a stronger word than “serious”.
Conclusion
83 In summary, the plaintiff has discharged the burden of proof in relation to the application insofar as it is based upon paragraph (c) of the definition of serious injury found in s.93(17) of the Act, but has not discharged the burden insofar as reliance was placed upon paragraph (a) of that definition. Accordingly, the plaintiff is successful. Leave is given to her to bring proceedings pursuant to s.93(4)(d) of the Act. That leave is granted in respect of an application based on damages for pain and suffering.
84 I will again repeat that the fact that the plaintiff has represented herself and been, in essence, successful in this application should not be seen as an encouragement to others who might be tempted by the prospect of doing the same. Applications in respect of leave to bring proceedings on the basis of serious injury are highly technical. There are numerous firms of solicitors which are prepared to undertake them on the basis that there is no fee should the application be unsuccessful. I remain of the view that the plaintiff in the present application not only could not fully understand what was required, but did not understand the true nature of the application. I would also again point out that she has a daughter who is a qualified barrister and solicitor who assisted her in the preparation of the matter. Even then at times the application came perilously close to running off the rails. Proper professional representation may well have resulted in those dangers being more comfortably avoided. Further, as I advised the plaintiff at the outset, it is not for the court to run the case for a self-represented party. What ultimately tilted the balance in favour of the plaintiff in the present case was not just my impression of her and her injury but the wealth of medical material placed before me, and this included medical reports obtained by the secondnamed defendant and properly put before me. Cases in which a plaintiff obtains assistance from current reports of a defendant’s examining experts, and in a situation where the plaintiff’s medical material is largely out of date, would be the exception rather than the rule. I can only repeat that I would strongly discourage self-representation in applications of this nature. I know from my VCAT experience that there are some areas which lend themselves to self- representation more than others. The area of serious injury applications certainly does not so lend itself.
85 I shall hear the parties as to any further orders that are required, and I there refer in particular to the question of costs. The plaintiff would seem to have had no legal costs associated with the immediate presentation of her case, and she is not in employment. However, she has had legal representation in the past. The question of what, if any, further orders are required may need some attention.
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