Parkes v Cole and TAC
[2010] VCC 1319
•21 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00016
| IVANA PARKES | Plaintiff |
| v | |
| TROY JESSIE COLE | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 2, 3 and 4 June 2010 |
| DATE OF JUDGMENT: | 21 September 2010 |
| CASE MAY BE CITED AS: | Parkes v Cole & TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1319 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – S.93 – serious injury – paragraphs (a) and (c) of the definition of “serious injury”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J A Dixon SC with | Ryan Carlisle Thomas |
| Mr K D Mueller | ||
| For the Defendants | Mr P D Elliott QC with | Solicitor for the Transport |
| Mr I S Gourlay | Accident Commission | |
| HIS HONOUR: |
Introduction
1 By way of an Amended Originating Motion, Ivana Veronica Parkes (“the plaintiff”), seeks leave pursuant to s.93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”) to bring common law proceedings to recover damages for injury (“the injury”) suffered by her arising out of a transport accident which occurred on 18 October 2002 (“the transport accident”).
2 The application was heard over three days, and the following evidence was adduced:
(a) The plaintiff, Jane Helen Edwards (the payroll manager from the State Revenue Office) and Dr David Weissman, psychiatrist, (who medico- legally examined the plaintiff on behalf of her solicitors) gave viva voce evidence and were cross-examined. (b) The plaintiff tendered the following evidence: (i) State Revenue Office document dated 3 June 2010 setting out the leave of the plaintiff (“Exhibit 1”);
(ii) pages 7-13, 17-18, 19-29, 30-31, 32-76, 76-90, 110-131, 132-141, 210-211, 212-223, 224-225, 227-236 and 237-248 of the Joint Court Book (“Exhibit 2”);
(iii) copies of the referral letters from the Transport Accident Commission (“TAC”) to Mr Michael Dooley dated 14 July 2006 and to Mr Michael Shannon dated 6 May 2009 (“Exhibit 3”);
(iv) document from the TAC setting out details of payments to the plaintiff (“Exhibit 4”).
(c) The defendants tendered the following evidence:
(i)
letter of resignation from the plaintiff to Paul Potter dated 25 January 2006 (“Exhibit A”);
(ii)
pages 104-109, 142-157, 158-173, 174-178, 182-188, 198-200, 205-209 and 249-251 of the Joint Court Book (“Exhibit B”).
Relevant Legal Principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.93(17) of the Act: (see s.93(6) of the Act).
4 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s.93(17) of the Act, which reads:
“In this section –
serious injury means –
(a) serious long-term impairment or loss of a body function; or (b) … (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the left ankle (see T1, L15). Such injury is said to be:
ƒ “A fracture of the medial malleolus requiring internal fixation. ƒ An undisplaced flake fracture involving the tip of the lateral malleolus
and the lateral wall of the talus.ƒ Mild cartilage loss with some subarticular sclerosis and cyst formation on the medial malleolus with appearances indicative of early ankle arthritis. The mild osteoarthritis involves the talar navicular joint.”
(See page 18 of Exhibit 2).
The mental or behavioural disturbance or disorder is said to be a:
ƒ “Chronic adjustment disorder with depressed and anxious mood of
moderate severity.ƒ Chronic mixed reactive, depressive syndrome (with anxiety and
frustration).
ƒ Post-Traumatic Stress Disorder” (See page 18 of Exhibit 2).
6 In order to succeed, the plaintiff must prove on the balance of probabilities
that:
(a) “The injury” suffered by her was a result of the transport accident; (b) The requirements of the test set out in the seminal decision of Humphries v Poljak [1992] 2 VR 129, wherein a majority of the then Full Court of Victoria stated, at paragraph 8 (see page 140), that: “Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
(my emphasis)
(see also Mobilio v Balliotis [1998] 3 VR 833).
(c)
“Serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot itself constitute or be the producer of the impairment of a body function: (see Richards v Wylie (2000) 1 VR 79.)
(d)
“Serious injury” as defined in sub-paragraph (c) requires the mental or behavioural disturbance or disorder be “severe” rather than “serious”. In Mobilio, the Full Court found that the word “severe” to be a higher standard to reach than “serious”, but at page 846 Brooking JA stated:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
7 The plaintiff alleges that she has suffered pain and suffering and pecuniary loss consequences which satisfy the requisite tests.
The Issues
8 Mr Elliott, QC, Senior Counsel for the defendants, informed the Court that, in relation to the ankle injury being a “serious injury” within paragraph (a), “there is not much there” on the physical side. Furthermore, in relation to the psychiatric injury being a “serious injury” within paragraph (c), such injury “comes nowhere near severity” (see T45, L19-28). Also, he asserted that issues of disentanglement of injuries arose.
The Plaintiff, the Injury and her Treatment
9 The affidavits sworn respectively by the plaintiff on 4 February 2008 (at page 19 of Exhibit 2, hereinafter referred to as “the first affidavit”) and on 26 August 2009 (at page 26 of Exhibit 2, hereinafter referred to as “the second affidavit”) were sworn to be true and correct by the plaintiff: (see T62, L7-19).
10 In the first affidavit, the plaintiff gives the following pertinent evidence:
•
She is a thirty-three-year-old (born 31 March 1977) single woman who was living with her fiancé in Mt Pleasant.
•
After attending school in Geelong, she graduated with a Bachelor of Arts from the University of Ballarat in 2000. After concluding her Bachelor of Arts, she commenced a post-graduate course at TAFE in professional writing and editing but did not complete that course.
•
When pursuing her university studies, she had various casual jobs, including working at a milk bar in Geelong on Saturdays. When working at the milk bar, she was involved in an armed robbery which caused her to seek psychological counselling from Jillian Crookes for “a while”.
•
After completing her university course, she worked at the Department of Environment in Wendouree for about seven months, handling customer enquiries in the call centre.
•
In October 2001, she commenced at the State Revenue Office as a Customer Service Officer, Grade 2, involved on a team which was set up to encourage customers to deal with administrative requirements electronically. The salary range for a Grade 2 employee was $34,990 to $44,934 and at the time she ceased employment with the State Revenue Office she was earning $36,411 gross per annum.
•
On 18 October 2002, at approximately 7.00 pm, she was driving her motor vehicle when an oncoming vehicle made an unexpected right turn across her path. The front of her car hit the side of the other car and the damage was so bad that her car was a “write off”. Her sister was a passenger in the car and both had to be cut out of the vehicle. In particular, the plaintiff states:
“… I remember being covered in blood and hearing my sister
screaming. It was a very frightening experience.”
(see paragraph 7).
•
She was conveyed by ambulance to the Geelong Hospital where she was an inpatient for about two weeks and then had a further two weeks of inpatient rehabilitation at Grace McKellar House. At that time she believed she had suffered a broken nose and cheekbone, a fractured left ankle, a fractured right clavicle and sternum, general bruising and psychological disturbance.
•
When an inpatient at Geelong Hospital, she underwent surgery to her left ankle by the orthopaedic surgeon, Mr Robert Wood, and later required further surgery for the removal of metal pins and screws.
•
Because of her fractured clavicle, she was unable to use crutches after the initial surgery on her ankle and had to use a wheelchair until she could walk. Since the transport accident, she has had “limitation of movement and swelling in my left ankle”: (see paragraph 11).
•
Because of difficulty breathing through her nose, she was referred to the plastic surgeon, Mr Darrell Nan, who performed surgery on 19 August 2003, which has given her little assistance. In particular, she states:
“.. I believe that I still have a deviated septum and some scar tissue. I get nose bleeds every couple of weeks and lesser blood staining all of the time. My nose is still painful.”
(see paragraph 12).
•
She required root canal surgery on one of her left lower molars after the transport accident.
•
Because the accident was such a “frightening experience”, she sought further assistance from Jillian Crookes, whom she has continued to see intermittently.
•
Initially, after the transport accident, she was “suicidal and was afraid to recommence driving” and she felt “tired and depressed all the time and my memory and concentration are poor”: (see paragraph 15).
•
She returned to work at the State Revenue Office on different duties in or about March or April 2003 and there was a graduated return to work, with her resuming full-time work approximately twelve months later. In particular, the plaintiff states:
“… Even then, I kept having time off work because of my injuries and for various treatment. I was concerned about being laid off and I was told that my position was not secure because the amount of time off work which I was having. I believe I had about 83 days off work in the calendar year of 2005. I eventually ceased work at the State Revenue Office in February 2006. By this time, all of my comparable employees had graduated to Grade 3, and had it not been for my accident, I believe that I would have been a Grade 3 employee on a salary of $48,868 gross per annum, rather than the $36,411 per annum which I was receiving when I ceased employment.”
(my emphasis)
(See paragraph 16)
• One week after ceasing work with the State Revenue Office, she commenced work for the Lighthouse Foundation in Bendigo as a live-in carer, and shared those duties with another carer. She worked Monday to Friday and every second weekend and had the care of people in the age group of fifteen to twenty-two years who had left home but were engaged in educational work. She was earning $27,000 per annum but could not continue with this employment because of “my injuries, particularly the stress caused by my psychological injury” (see paragraph 17). She ceased work in March 2007 and has been unemployed since then to the date of the affidavit. • She describes the difficulties with her left ankle in the following terms: “I suffer constant left ankle pain and limitation of movement. The pain in my left ankle is worse when there are changes in the weather. It often keeps me awake at night or causes me to wake from my sleep. As a result of my lost sleep I constantly feel tired and lethargic. My ankle often swells and I sometimes walk with a limp. I cannot walk or stand for a long time. I have difficulty on steps, stairs and inclines. I used to enjoy walking and I used to walk around Lake Wendouree, a distance of approximately 6 kilometres, every morning. I played netball on and off and racquetball. I used to enjoy going to the gym. I also used to enjoy riding my mountain bike around the hilly area of Ballarat. I can now only walk short distances, and I have had to cease my other activities.”
(See paragraph 18)
•
She has also had ongoing difficulty with her right shoulder and her right hand.
•
She continues to have psychological counselling, performs exercises and takes one Zoloft every day.
11 In her second affidavit, the plaintiff gives the following pertinent evidence:
• She married in February 2009. • In February 2008, she commenced employment with Lisa Lodge in Ballarat as a Social Worker, Class 2, working 27 hours per week spread over four days (Monday to Thursday) and earning approximately $1,100 per fortnight. • She describes her work at Lisa Lodge in the following terms: “My work involves me dealing with single young women and people in crisis situations and I find the work very stressful. The clients frequently unburden stressful symptoms and problems to me which often rekindle intrusive and frightening recollections of the accident and the resultant problems. I am not able to cope with working more than 27 hours per week. I find that I need the whole of every Friday to de-stress myself from all the stressors that I encounter at work.”
(my emphasis)
(see paragraph 6)
• When she first commenced at Lisa Lodge, she did work Fridays but was unable to “fully unwind over the weekend” and accordingly arranged to work the other four weekdays. • She has had seven or eight days off work caused by her “injuries” since commencing at Lisa Lodge. • She has ongoing problems with her right shoulder. • She describes ongoing difficulties with her left ankle in the following terms: “My left ankle still causes me pain and discomfort particularly after long periods of standing or after walking more than one kilometre. My ankle causes me problems walking up or down inclines and clicks with each step I take on any surface. I have trouble driving my vehicle which is manual transmission and my left ankle and often leg aches after I have been driving particularly around metropolitan areas which require constant gear changing. The pain in my left ankle keeps me awake at night and is sensitive to cold weather.”
(see paragraph 11)
• She has headaches three or four times a week and during the course of the day her neck muscles become very tense. In the past, these symptoms were relieved by massage to the neck when she was receiving physiotherapy. Since the TAC ceased funding physiotherapy from approximately the end of 2005, she only infrequently attends a physiotherapist for treatment on her neck, right shoulder, and sometimes left ankle. • She still suffers from nose bleeds nearly every day since her breathing is “constantly impaired” (see paragraph 13). • She no longer regularly attends her psychologist, Jillian Crookes, because she is located in Geelong and she (the plaintiff) lives in Ballarat. She last saw Jillian Crookes on 31 July 2009. • She continues to suffer constant pain, particularly in the right shoulder and left ankle, and the severity of pain varies depending on how active she is. • She is not nearly as outgoing as she was, and is much more anxious and negative. 12 The plaintiff also gave viva voce evidence-in-chief. The pertinent aspects of which are:
•
She was told by a Mr Chris Gardner, a team leader at the State Revenue Office, that she would be told “to leave” because of the time off that she was taking: (see generally T63, L5-24).
• She is currently looking in Ballarat for a new psychologist. •
She is currently working at Lisa Lodge for three days per week, because the only other alternative was to work full-time (40 hours per week) which “I couldn’t have coped with” (see T66, L14-20). She believes that if it was not for her injuries she could have undertaken the 40 hours.
•
She has been taking Zoloft for about four to five years and the original dosage was 50 milligrams, then 100 milligrams and she is presently taking 200 milligrams (although she tried for a short while taking 300 milligrams).
• She has trouble sleeping and cannot really stay asleep. •
There was constant pain in her left ankle, which fluctuates in severity, and if she has to walk or drive a lot, the ankle swells.
•
In her present employment, she mentors young adults between the ages of sixteen and eighteen (more usually eighteen) and acts as an advocate for them.
•
She presently works 24 hours a week over Monday, Tuesday and Wednesday.
•
She takes Nurofen Plus “still a couple of times a week; probably two or three times”: (see T72, L12-15).
•
She is unable to walk around Lake Wendouree. She cannot run, cannot really lunge, squat or things like that because of her left ankle: (see T72, L17-19).
•
After the transport accident, she went back to work for the State Revenue Office in March 2003, working two hours a day twice a week. By June/July, that had built up to full-time. She has had a lot of time off work for doctors’ appointments, specialist appointments and courses of Cortisone injections.
•
She has lost ten days in the last year-and-a-half in her present job, predominantly as a result of her ankle and stress: (see T74, L2-7).
13 The plaintiff relies on an affidavit of Lance Deveson, sworn 2 September 2009 (see page 30 of Exhibit 2). In that affidavit, Mr Deveson describes himself as a library information manager who, in December 2001, was employed by the State Revenue Office as a Team Leader, Land Tax Branch, to start up a Ballarat office with twenty-five new staff. The plaintiff was one of the new staff but because of her “phone manner, maturity and attention to detail”, he offered her the lead development role in the creation of an online processing module to undertake the processing of land tax certificates. After her return to work after the transport accident, he observed that she was unable to maintain her regular week’s work, was in constant pain and life in general was very difficult.
14 Mr Deveson notes that over 60 per cent of employees who started work at the State Revenue Office with the plaintiff are now in senior positions at the Ballarat office and he has “no doubt”, absent the transport accident, the plaintiff would be occupying a similar role within the State Revenue Office.
15 The plaintiff was under the care of the orthopaedic surgeon, Mr Robert Wood, from 18 October 2002 (in Geelong Hospital) until discharge from his care on 30 September 2004. In a report dated 13 March 2005 (see page 68 of Exhibit 2), he notes that the plaintiff initially complained of back pain, left ankle pain, problems with her right shoulder and facial injuries of a soft-tissue nature.
16 Open surgery on the left ankle was undertaken with insertion of a plate and screws with reduction and fixation of the medial malleolus. Radiological studies also revealed a likely fractured upper sternum which was undisplaced.
17 In October 2003, arthroscopic examination of the ankle was undertaken, together with the removal of the plate and screws. At the time of the arthroscopy, the joint appeared to be in good condition but a lot of scarring was present on the anterior, anteromedial and anterolateral sides. Over several consultations, Mr Wood injected the left ankle with Cortisone to help relieve the pain in the ankle.
18 When last seen on 30 September 2004, Mr Wood states, in part:
“She does work as a customer service officer for the State Revenue Office, and to the best of my knowledge her condition was not interfering with her work in terms of time off work, but she did complain of problems with stiffness after prolonged seating, which is an element of her workplace.
Up until the point of discharge she still had not been able to return to her previous leisure activities which were walking, rowing and aerobics.
Whether her ankle settles to the point where she can return to these activities is a[t] present unclear, but it is certainly within the realms of possibility. Only time will tell whether this is to be the case.
Her ankle should not deteriorate from this point, but it may slowly
improve.
There is some chance of ensuing osteoarthritic change within the ankle,
but this is unlikely in the presence of a simple ankle fracture.
There was certainly impairment present at the time of last review, with loss of dorsiflexion which can be quite debilitating, and ongoing swelling in the ankle. These were slowly improving still at the time of last review.
Hence disability is difficult to gauge at this point of time, but some degree of ankle impairment is likely to be present potentially, but I believe it more likely to settle to the point where it does not trouble her greatly, except it may, as previously mentioned, limit her ability to return to previous pursuits … .”
(my emphasis)
(see page 70 of Exhibit 2).
19 The psychologist, Ms Jill S Crookes, commenced treatment of the plaintiff on 20 October 2002 and continued seemingly up to 31 July 2009 (the date nominated by the plaintiff in her second affidavit). In her report dated 25 October 2004 (see page 76 of Exhibit 2), Ms Crookes notes that she had originally seen the plaintiff in December 1998 following an armed robbery at her place of employment. At that time the plaintiff was diagnosed with Post- Traumatic Stress Disorder and was seen on three occasions in December 1998 and on fifteen occasions in 2000 with no further consultations until five months later, following the transport accident.
20 In a report dated 24 August 2009 (see page 84 of Exhibit 2), Ms Crookes confirms her diagnosis of the plaintiff suffering from Post-Traumatic Stress Disorder and Adjustment Disorder with Depressed and Anxious Mood caused by the transport accident. Ms Crookes states, in part:
“Whilst Ms Parkes continues to have significant functional difficulties with regard to normal activities of daily living, ongoing pain and disability she will continue to experience psychological distress and emotional difficulties.
. . .
Given that it is seven years since the motor vehicle accident, it is unlikely that Ms Parkes’ condition will improve markedly in the future. However, it is to be hoped that an intensive pain management program supported by counselling, over 6 months, would help Ms Parkes to make a more functional adjustment to her situation.
. . .
As detailed above, Ms Parkes reports that her injuries, both physical and psychological, have had a significant effect on her recreational and social life. She cannot participate in any physical activities at any meaningful level (e.g. walking her dogs is very difficult) and is socially withdrawn, isolated, shy and fearful of people. These are significant effects for such a young person.
. . .
Ms Parkes currently works 27 hours per week, which would be her maximum capacity given the ongoing physical and psychological difficulties she experiences. Given this restriction, her injuries have diminished her capacity for employment from that of a full time worker. Ms Parkes should not consider working more than her current hours and should be careful about taking on duties or positions that have a high level of stress or demands.
. . . .”
(my emphasis).
21 When living in Geelong, the plaintiff attended the general practitioner, Dr Martin Brown, who treated her to 12 July 2004. In a report dated 9 December 2004, Dr Brown notes that over the period from the transport accident up until July 2004, she made a slow recovery from injuries which required a lot of time off work, and needed physiotherapy. Furthermore, she required a psychologist on a regular basis for her depression related to her injuries. In relation to her left ankle, Dr Brown considered that:
“… the ankle, had recovered sufficiently so that she was able to get back to her normal job. The other injuries (the nose, the collar bone and the sternum) had all healed up satisfactorily.
Hence her long-term outlook is good for complete recovery and I do not anticipate any further sequelae.”
(see page 66 of Exhibit 2)
22 The general practitioner, Dr Matthew Gibney, has treated the plaintiff in Ballarat from about November 2004. He notes that when seen on 5 November 2004, the plaintiff was in tears, complaining of nausea and headaches due to her neck injury. Dr Gibney diagnosed clinical depression and the plaintiff was encouraged to continue counselling and physiotherapy to help ongoing pain. On 2 February 2005, the plaintiff commenced to receive anti-depressant medication – at that time 100 milligrams of Zoloft.
The Cross-Examination of the Plaintiff
23 Under cross-examination, the plaintiff gave the following pertinent evidence:
• She is now interested in “social work”: (see T78, L21-22). •
She married in February 2009, had a reception in Ballarat where seventy people attended, after which she went on a honeymoon.
•
She does “not really” have a circle of friends that she mixes with in the Ballarat area. She does not “really socialise anymore”: (see T82, L8-9).
•
She takes her two dogs for walks just around the block: (see T82, L22- 25).
•
She has limited movement of the right shoulder, difficulty performing certain tasks to the right hand (particularly lifting and carrying), and suffers constant pain in her right shoulder. Such pain is worse with changes in the weather and often keeps her awake at night: (see T82, L29 and T83, L6).
• She is right handed. •
She stopped seeing Ms Crookes in July 2009, in part because she now lives in Ballarat and the psychologist lives in Geelong, and in part because she cannot afford it: (see T83, L22-27).
•
She continues to have some physiotherapy involving “massages” of the ankle joint, her right shoulder but “predominantly the neck because I get tension headaches”: (see T84, L2-11).
•
Her present job involves her driving a motor vehicle to transport “clients” for their different needs – going to doctors, dentists, shopping, things like that: (see T84, L28 and T85, L6).
•
Her job does involve sitting at a desk doing computer work and keeping case notes: (see T87, L15-21).
•
She might be able to do another day of “leading care” if it was “pressed”: (see T95, L8-17).
•
The pain and swelling in her left ankle is “pretty constant” but depends on what she is doing: (see T97, L14-16).
•
She continues to see Mr Peter Roberts, physiotherapist, probably every couple of months.
•
Her problems with breathing and her nose also keeps her awake at night: (see T97, L28 and T98, L1).
•
She has informal access to Jill Crookes, who has recommended that she engage a psychologist locally. She has “not got round to that yet”: (see T98, L17-27).
•
Although she was never particularly active in sport prior to the transcript accident, she has played no sport since the accident: (see T101, L17- 18).
•
Dr Matthew Gibney continues to be her general practitioner in Ballarat and provides new prescriptions for Zoloft as required: (see T106, L16- 23).
• She still gets “dreams of the accident”: (see T110, L7).
Medico-Legal Evidence
24 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a) Dr Carol Newlands, psychiatrist, on 15 October 2004: (see report dated 18 October 2004 at page 93 of Exhibit 2); (b) Mr Russell Miller, orthopaedic surgeon, on 24 November 2004: (see report dated 14 December 2004 at page 104 of Exhibit 2); (c) Dr David Weissman, psychiatrist, on 19 April 2007 (see report of same date at page 110 of Exhibit 2) and on 28 August 2009: (see report of same date at page 122 of Exhibit 2); (d) Mr Paul Kierce, orthopaedic surgeon, on 10 June 2009: (see report of same date at page 132 of Exhibit 2). 25 Dr Newlands was of the opinion that the plaintiff was suffering from two conditions – a Post-Traumatic Stress Disorder directly related to the incident and also an Adjustment Disorder with features of depression which would seem to be limitations imposed upon her by the physical injuries. Her assessment at that time was essentially for the purposes of an AMA evaluation, which is of no direct assistance to the Court.
26 Similarly, Mr Russell Miller performed an orthopaedic impairment assessment in September 2004 and noted, at that time, that the plaintiff had ongoing problems with her right shoulder, sternum and left ankle. In particular, he found the left ankle to be stable with a full range of motion although there was some diffuse swelling and mild irritability.
27 In his first report, Dr Weissman notes that the earlier psychological difficulties suffered by the plaintiff in relation to the robbery at her place of work and any family history of psychological difficulties has had no impact on the psychological consequences following the transport accident. He is of the opinion that the plaintiff suffered a chronic Post-Traumatic Stress Disorder of moderate severity due to the transport accident and that such condition had “by and large” stabilised. At that time he thought she was not incapacitated for work although her psychiatric symptoms would impact in a moderate manner upon her work in terms of depression, anxiety, impaired concentration, forgetfulness and diminished motivation. Socially and recreationally, he considered the plaintiff to be socially withdrawn, anxious and depressed, experiencing some disturbance. He noted, at the time of his examination, she was taking 200 milligrams of Zoloft and considered that she should be taking this for the foreseeable future.
28 When seen in August 2009, Dr Weissman obtained the history that the plaintiff suffers “rotten” headaches, bilateral shoulder pain, neck pain, upper back pain, lower back pain and ankle pain. At that time she was taking 200 milligrams of Zoloft daily, and Nurofen Plus.
29 Dr Weissman considered that the plaintiff’s symptoms, signs and disturbance were about the same as when he first examined her in April 2007 and was of the opinion that she suffered a chronic Post-Traumatic Stress Disorder of moderate severity or intensity, together with a Chronic Mixed Reactive, Depressive Syndrome (with anxiety and frustration) as a consequence of, or secondary to, her accident-related pain, injuries and disabilities.
30 Dr Weissman considered the plaintiff was working at her “maximum capacity”, which is 27 hours per week, and that she should remain on 200 milligrams of Zoloft daily for the foreseeable future.
31 He considered that she had experienced a “moderately severe decline” in her quality of life and level of functioning and that there has been a partial loss of earning capacity (by about 20 per cent) on purely psychiatric grounds alone.
32 Dr Weissman was called for cross-examination and gave the following pertinent evidence:
• The Adjustment Disorder suffered by the plaintiff is contributed to by the “significant pain in multiple sites of the body”: (see T157, L20-28). • In relation to her being able to drive, Dr Weissman accepted “that it is unlikely that someone who has absolutely severe anxiety and is still able to do that sort of driving throughout the course of work …”: (see T159, L1-4). • Dr Weissman was of the opinion that the plaintiff could work four days a week: (see T164, L12-14). • When queried about working the days that she does, and dealing with young adults, Dr Weissman stated: “So I would agree that it’s unlikely that someone with absolutely severe psychiatric symptoms whether it be a severe Post- Traumatic Stress Disorder or a severe Major Depression, will be able to work four days a week or five days a week. That would be – that wouldn’t happen but it could well be consistent with someone with moderate symptoms working three to four days a week in that job.”
(see T165, L30 and T166, L7).
•
Dr Weissman was of the opinion the plaintiff could probably work more hours but was not sure she could work full-time, save that if she was in a lower stressed job and environment she would probably work more hours: (see T167, L17-21).
•
The dose of 200 milligrams of Zoloft daily is the “maximum” with the starting dose being in the order of 50 milligrams daily: (see T175, L1-2).
33 During re-examination, Dr Weissman was asked (see T177, L24 – T178, L9):
“Q:
Can I asked you; you’ve used the term moderate, and the term severe has also been touched on. In terms of both of those words when discussing PTSD or a chronic adjustment disorder, does it refer to a range or does it – is there is a range within the range of severe, in terms of symptoms? So in other words if you tag someone as severe, can that include a great range of actual functional capacity?---
A:
It’s just a term that I started to use more of lately, those terms mild, moderate and severe, and the same with a lot of psychiatrists, because it just makes sense to most people.
Q: So what’s severe, for example, severe PTSD, or let’s take severe
depression?---A: (Indistinct) question, it would be more easy to understand. Severe depression would include someone that has consistent and constant suicidal ideation, suicide attempts, frequent hospitalisation requiring ECT, those sorts of things which doesn’t apply in this case. Q: Whereas moderate depression - - -?--- A: Would apply to the symptoms that I’ve described here, and mild
would be much less than that.”
34 When seen by Mr Kierce on 10 June 2009, the plaintiff made complaints of pain in her left ankle and also in the region of her right shoulder. Mr Kierce obtained the history of the plaintiff taking Zoloft for her psychological difficulties and Nurofen or Panadol, four to six a week, for ankle and shoulder pain.
35 On examination, Mr Kierce noted that the plaintiff was able to walk without a limp and could readily walk on her heals and toes but had difficulty attempting a half squat, because the ankle could not bend upwards enough. The girths of the lower legs were equal and she could dorsiflex her left ankle joint to a right angle only. The ligaments of the left ankle were stable.
36 Examination of the right shoulder revealed tenderness in the right shoulder area with some restriction of movement.
37 Mr Kierce had available to him films of the left ankle taken over a number of years, but in particular on 22 September 2004 and 15 September 2005, which revealed some joint space narrowing in the left ankle joint medially.
38 In his report, Mr Kierce states (at page 140 of Exhibit 2) that:
“PRESENT CONDITION
She is suffering with pain and decreased movement in her left ankle joint as a result of her involvement in this motor vehicle accident. She is already developing some osteoarthritis in the left ankle joint, particularly in the medial side as a result of this accident.
She has a significant limitation of right shoulder movements as well as suffering from persistent pain in the right shoulder.
PROGNOSIS
It is likely that she will eventually develop a degree of osteoarthritis of the left ankle joint as a result of her involvement in this motor vehicle accident.
There will be a permanent impairment as a result.
I am unable to offer a prognosis regarding the right shoulder at this stage as it needs to be more adequately evaluated with an MRI examination of the right shoulder, which I could arrange to be done if you agree. …
Further, she has suffered from significant depression as a result of this accident which also should be assessed by a psychiatrist in my opinion.”
(my emphasis).
39 The solicitors for the defendants arranged for the plaintiff to be medico-legally examined by the following doctors:
(a)
Mr Michael Dooley, orthopaedic surgeon, on 10 May 2004 (see report dated 25 May 2004 at page 142 of Exhibit B), 4 April 2005 (see report dated 6 April 2005 at page 149 of Exhibit B) and 10 October 2006 (see report dated 16 November 2006 at page 153 of Exhibit B);
(b)
Dr Nicholas Ingram, psychiatrist, on 13 August 2006 (see report of same date at page 158 of Exhibit B), 20 December 2007 (see report of same date at page 169 of Exhibit B) and 9 June 2009 (see report of same date at page 164 of Exhibit B);
(c)
Dr David Fish, occupational physician, on 10 May 2004: (see report of same date at page 182 of Exhibit B);
(d)
Dr Maxwell Gayner, consultant psychiatrist, on 9 June 2005: (see report of same date at page 189 of Exhibit B);
(e)
Mr Michael Shannon, orthopaedic surgeon, on 9 June 2009: (see report dated 12 June 2009 at page 205 of Exhibit B).
40 When last seen by Mr Dooley in October 2006, the plaintiff was complaining of sharp intermittent pain in the ankle region, ongoing right shoulder girdle pain, and at times some neck and back pain. Examination of the left ankle revealed dorsiflexion to be nil.
41 Mr Dooley was of the opinion that the plaintiff would continue to have intermittent swelling and aching of her left ankle with prolonged activity and prolonged standing. Furthermore, he was of the opinion that she would have some intermittent aching of her right shoulder, especially with a lot of activity at and above head level.
42 When he first examined the plaintiff in August 2006, Dr Ingram considered that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed Mood, together with some residual symptoms of a Post-Traumatic Stress Disorder with mild phobic symptoms in regard to driving. He considered that the depression was not particularly severe and the Post- Traumatic Stress Disorder symptoms to be mild.
43 When last seen in June 2009, he was of the opinion that she continued to have symptoms of a Chronic Adjustment Disorder with Depressed and Anxious Mood, together with ongoing elements of Post-Traumatic Stress Disorder. In particular, Dr Ingram states:
“Mrs Parkes continues to have significant psychological symptoms some seven years after the accident, though these are much better than they have been at other times. Despite her problems, however, she seems to have been able to get on with her life and has recently married and has been working for the last year in a job as a social worker, which she enjoys. However, she has only got back to working twenty-seven-hours a week, which in part seems related to her physical limitations and loss of energy, though also in part seems related to her anxiety and loss of confidence, and it is not clear whether she will be able to increase the number of hours in the future.
In regard to ongoing treatment, I think it is important she continue on antidepressants and given the higher dose of Zoloft led to some sense of numbness, I think it would be appropriate to try several alternative antidepressants, until she finds one that she can tolerate at higher doses and which is more effective at treating her depression and anxiety. Until she has tried a few other antidepressants I would not feel that her situation was stable. She has had regular psychotherapy over the last few years, but not recently and it is not clear that she needs to start seeing a psychologist again.”
(my emphasis)
(see page 168 of Exhibit B).
44 When seen by Dr David Fish in May 2004, the plaintiff was complaining of pain in her right shoulder, left ankle and difficulties with her breathing. Examination revealed tenderness over the right shoulder and swelling in the left ankle, with some tenderness over the medial subtalar joint. However, the range of movement in the ankle and in the subtalar joint was full and normal.
45 When seen by Dr Gayner on 6 April 2005, he was of the opinion that the plaintiff described a functional level, both at work and in terms of interpersonal relationships which was not suggestive of significant impairment due to a significant mood disorder. In particular, Dr Gayner states:
“Miss Parkes’s current symptoms rather take the form of an anxious preoccupation with her physical symptoms, and a tendency to view her life as blighted by an accident which was the fault of another person. She would also appear to have suffered some loss of self confidence and to have reached a stage where she regards herself as being in a fragile state, both mentally and physically.”
(see page 198 of Exhibit B).
46 When seen by Mr Shannon on 12 June 2009 (two days after the examination by Mr Kierce), the plaintiff was complaining of right shoulder pain, some aching in her knees and constant pain in her left ankle region.
47 Examination of the left ankle revealed limited dorsiflexion but virtually a full range of plantar flexion and subtalar movement by comparison with the other side. There was no muscle wasting but there was some thickening around the ankle joint and the ankle was clinically stable.
48 Mr Shannon could not adequately explain her ongoing complaints and symptoms in her right shoulder. In relation to her left ankle, he states, in part:
“In regard to her ankle, she sustained a fracture which has apparently
been internally fixed and united in satisfactory position.
The fixation devices have been removed and she has also had arthroscopic surgery to remove an area of calcification in the capsule.
I have no evidence that she had a dome fracture of the talus.
She does have genuine restriction of ankle dorsi flexion and this would limit her capacity to walk long distances and particularly to climb stairs and inclines.
It would not significantly interfere with her work capacity.
There is only a slightly increased risk of development of degenerative
change in the ankle.”
(my emphasis)
(see page 209 of Exhibit B)
49 Evidence was given by Jane Helen Edwards, manager with the State Revenue Office. This witness confirmed that the plaintiff commenced with the State Revenue Office on 8 October 2001. The witness also produced a document issued on 3 June 2010 consisting of four pages which was a record from the State Revenue Office setting out leave taken by the plaintiff from 30 November 2001 to 31 January 2006. Such exhibit indicates the type of leave that is taken – that is, sick leave (with or without pay), family leave, recreational leave et cetera. Under cross-examination, the witness thought it likely that where the initials “TAC” appeared on the document, it was likely that leave was associated with her injuries from the transport accident. However, the witness did note that the ‘remarks’ field contained in the document would not always be completed.
Analysis of the Evidence
50 There is no issue that the plaintiff suffered a transport accident on 18 October 2002. The circumstances of the accident were such that an oncoming vehicle made an unexpected right-hand turn across the path of the plaintiff’s vehicle causing a collision, with the plaintiff’s vehicle considered a “write-off”. The plaintiff’s sister was in the vehicle. I accept that such an accident must have been “very frightening” to the plaintiff. Furthermore, there is no issue that as a result of the transport accident, the plaintiff suffered the following injuries:
(a) a left ankle injury which involved a fracture of the medial malleolus, requiring open reduction and internal fixation. There was also minor avulsion-type fractures to the lateral malleolus and the lateral wall of the talus; (b) Post-Traumatic Stress Disorder and Adjustment Disorder with Depressed and Anxious Mood; (c) it is also to be noted that as a result of the transport accident, the plaintiff suffered a fracture of her right clavicle and sternum which has given rise to significant symptoms in her right shoulder, neck and right arm’ (d) some breathing difficulties as a result of damage to her nose. 51 A consideration of all of the lay and medical evidence establishes that the plaintiff has suffered a long-term impairment of her left ankle within the meaning of paragraph (a) of the definition of “serious injury” contained in s.93(17) of the Act and similarly, has suffered a long-term mental or long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury” contained in the subsection.
52 The issue becomes whether the ankle injury is “serious” within the meaning of the Act and/or whether the psychological injury is “severe” within the meaning of the Act.
53 I found the plaintiff to be an articulate young woman who gave her evidence with a largely flat affect but smiled appropriately at light moments. Although she had a tendency (as suggested by Dr Gayner in 2005) to view her life as blighted by the transport accident, I found her to be essentially a witness of truth and attempting to give an honest account of her problems.
54 In respect to the left ankle injury being a “serious injury”, Senior Counsel for the plaintiff submitted:
(a)
The plaintiff has constant pain in the left ankle which fluctuates in severity, depending on any activity that she undertakes;
(b) Depending on the activity, the left ankle can swell; (c)
The pain in her left ankle sometimes requires her to take Nurofen Plus two or three times a week;
(d)
The pain in her left ankle limits the amount of walking that she can undertake and she cannot run, lunge, squat, or things like that, because of her left ankle;
(e) Although she can drive, long distances increase pain in the left ankle; (f) The pain in her left ankle can cause her to wake at night; (g) She has restriction of movement in dorsiflexion of the left ankle; (h)
Although she was not a regular sportswoman, she was involved with a rowing team when she was working at the State Revenue Office, played racquetball and netball, all of which she is unable to do now;
(i)
On the basis of the report from Mr Kierce, she is already developing signs of osteoarthritis which is significant in a person aged thirty-three years;
(j)
Reference was made to the recent Court of Appeal decision of Hayden Engineering Pty Ltd v McKinnon [2010] VSCA 69. In that matter, a worker suffered injury to an ankle during the course of his employment and the issue was whether his “pain and suffering” consequences within the meaning of s.134AB of the Accident Compensation Act 1985, were “serious” within the meaning of the so-called narrative test, which for present purposes, is essentially a codification of the test set out in Humphries v Poljak [1992] 2 VR 129. I refer to paragraph 9 and following of the judgment of Maxwell P, where he states:
“Evaluating the “pain and suffering consequence”
[9] In its accepted interpretation, the ‘pain and suffering consequences’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
The experience of pain
[10] As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
[11] The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);7 (b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment); (c) what the doctors say about the extent and intensity of the plaintiff’s pain; and (d) what the objective evidence shows about the disabling effect of the pain. [12] As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
[13] As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.
The disabling effect of pain
[14] As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.
[15] As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.
[16] Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication); • capacity for self-care and self-management;17
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.
[17] When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.”
55 Senior Counsel for the defendants submitted that the ankle injury was not “serious” because:
(a) The operations undertaken on the left ankle were technically successful; (b) Mr Kierce, in his opinion, seems to be “out on his own” in relation to the development of osteoarthritis. The treating surgeon in 2004 said that development of such is “not high”, as did Mr Shannon; (c) There is scant evidence from treating doctors – particularly general practitioners – as to the plaintiff’s complaints and any treatment now; (d) Before the transport accident, the plaintiff did not really do a lot of sport and this was not a big part of her life, and the walking was mainly contained to walking around the lake; (e) The plaintiff is on her feet during the day working and is also driving; (f) Although there have been consequences to the plaintiff as a result of her left ankle injury, those consequences cannot be appropriately described as “at least very considerable”. 56 Consistent with the approach of Senior Counsel for the plaintiff, I am of the view that if the ankle injury is a “serious” injury within the meaning of the Act, it is as a result of pain and suffering consequences rather than any pecuniary loss consequences. In relation to such “pain and suffering” consequences, I consider that such may well be described as “significant” or “marked” but cannot be fairly described at least as “very considerable” when considered by a comparison with other cases in the range of possible impairments or losses.
57 I have come to such view on the following bases:
(a)
I accept that there is some restriction of left ankle movement. The plaintiff does experience fluctuating pain in her left ankle with swelling on occasion. Consistent with Hayden (op. cit.) an analysis has to be made as to the intensity, frequency and effects of such pain on the plaintiff. In the circumstances of this matter, the plaintiff has demonstrated that she is on her feet during the day, is able to drive and is capable of some walking, albeit less than what she was capable of prior to the transport accident. She takes pain relieving medication- Nurofen Plus – probably 2 or 3 times a week. I do note that such medication is used to also control the shoulder pain.
(b)
I also accept that the plaintiff would have difficulties, as suggested by the orthopaedic surgeons, negotiating inclines and stairs but again, is capable of performing such activity;
(c)
I am also conscious of her evidence that pain in her left ankle either on occasion keeps her awake or causes her to wake up during the night. However, it was hard to gauge how significant a problem this was, bearing in mind her evidence that her right shoulder problems and her breathing issues also caused her to wake up during the night;
(d)
I am also conscious that Mr Kierce suggests that she has developed or indeed may be developing osteoarthritis in the joint. However I note, that this is largely inconsistent with the opinions expressed by the treating orthopaedic surgeon and Mr Shannon. It is probable that Mr Kierce was basing his opinion on x-rays taken in September 2004 and September 2005. It was not totally clear whether Mr Shannon had access to the films and/ or reports of such x-rays. Inferentially, Mr Shannon found no clinical evidence of the development of osteoarthritis. I tend to the view that the risk of the plaintiff developing osteoarthritis in the left ankle is real, although I have no direct evidence as to how that will impact on the plaintiff;
(e)
Prior to the transport accident, I find that the plaintiff was casually involved in sporting activities which are affected by her left ankle injury. However, in no sense do I form the view that such sporting activities were a passionate part of the plaintiff’s life. As I would understand the evidence, the major issue for the plaintiff was her inability to walk around the lake, although she has retained the ability to do some walking with her dogs and indeed, as I have already stated, her employment involves a degree of walking on a daily basis;
(f)
Although I am acutely conscious that the facts of one case cannot be the basis of a judgment in another, I do refer to Fleming v Hutchinson (1991) 66 ALJR 211 contained in a report of Humphries v Poljak (op. cit.) at page 143. That case had similarities to the present, in that the applicant had suffered a long-term impairment of the function of her right foot due to a crush fracture and there was clinical and radiological evidence of the development of arthritis which would probably progress. A majority of the Full Court at page 146, stated:
“…She will never have a foot which functions entirely normally. All these considerations must lead to the conclusion that there is long term impairment, which may involve at least moderate disruption of her activities.
However, we are not persuaded that the long term impairment is properly to be described as ‘serious’, according to the meaning we think must be given to that expression. … .”
Such decision does give some indication as to where the bar is to be situated in evaluating whether an injury is “serious”.
58 In respect to whether the psychological injury is “severe”, Senior Counsel for the plaintiff submitted:
(a) On the authority of Hunter v Transport Accident Commission [2005] VSCA 1 (the decision of the Court of Appeal dealing with s.93 of the Act), the plaintiff can rely on a combination of the economic loss and the pain and suffering aspects of the psychological injury to get over the mark of severe (see generally paragraphs 43 and 44 of the judgment). In this sense, it is submitted that the plaintiff can rely on all of the pain and suffering consequences of the Post-Traumatic Stress Disorder and Chronic Adjustment Disorder with Mixed Anxiety and Depression, together with any pecuniary loss resulting from such psychological injury;
(b)
The plaintiff is now only working three days a week and has lost the actual capacity to work full-time and perhaps more particularly, has lost the capacity to follow the career path that she had at a critical time in her life;
(c)
The plaintiff continues to take 200 milligrams of Zoloft, which is at the upper end of such dosage, and that is likely to continue indefinitely into the future;
(d)
Although she has recently married and is understandably happy about such event, the plaintiff has tended to avoid making new friendships and leads a reasonably isolated sort of life;
(e)
The plaintiff intends to engage a psychologist in the Ballarat area to assist her with her condition.
59 Senior Counsel for the defendants submitted that the psychological injury was not “severe” on the following bases:
(a)
Although the plaintiff is continuing to take Zoloft, she has not been under the care of a psychologist since July 2009. Although she talks of seeking out a new one, that has not been done and is an indicator that her condition is either improving or does not need the assistance of a psychologist;
(b)
Dr Weissman, a medico-legal specialist retained by the solicitors for the worker, in re-examination, although using everyday adjectives such as “mild”, “moderate” and “severe”, highlighted the stark difference between a “severe” psychiatric condition and a “moderate” condition which he considers the plaintiff to be suffering;
(c)
The plaintiff is presently performing a reasonably stressful job, being the advocate for young adults who are emotionally upset;
(d)
The plaintiff can function in the community, perform work, albeit at lesser hours, is able to drive and involve herself with all day-to-day activities (subject to any physical limitation brought about by organic injury).
60 In relation to the psychological injury under paragraph (c), I have come to the view, after consideration of all of the evidence that such condition is not “severe” within the meaning of the Act. I set out my reasons for coming to such a view:
(a)
I accept the submission of Senior Counsel for the plaintiff based on Hunter v Transport Accident Commission (op. cit.) that the Court can look at pain and suffering consequences and pecuniary loss consequences in assessing whether or not the psychological injury suffered by the plaintiff is “severe”;
(b)
Although the plaintiff has been under the care of a psychologist, such treatment ceased in July 2009 partly as a result of financial concerns and partly as a result of the plaintiff moving to a different area. Although she has given evidence that she intends to seek out a further psychologist, this has not occurred over the last twelve months;
(c)
I accept that the plaintiff is likely to continue to take Zoloft at 200 milligrams a day for the foreseeable future. There was no evidence that the taking of Zoloft causes any adverse consequences and indeed I take the view that the Zoloft permits her to function far better than she would absent taking such medication;
(d)
It is difficult to be precise as to the extent that any psychological injury has impacted on her capacity for employment as many of the doctors refer to a combination of all her problems (the ankle injury; the nose injury with the resulting breathing difficulties; and the neck symptoms) and her psychological problems playing a role. However, I do accept the evidence of Dr Weissman that her work capacity has reduced by about 20 per cent;
(e)
I consider it important that the plaintiff is demonstrating her capacity to perform a job which she finds “very stressful”. One could well understand that dealing with young adults, being their advocate, going to court and the like could well have stressful aspects. Again, it must be borne in mind that such job requires her to go to different places, deal with different people, drive her “clients” to different places and also perform clerical work involving a computer and the like, keeping case notes;
(f)
Although in no way do I translate Dr Weissman’s categories of psychological condition into the Act, it is instructive as to what he considers to be a “severe” psychiatric condition – that is, involving frequent suicidal ideation, frequent hospitalisation and the like. Clearly that is not the picture here;
(g)
Much was made of the amount of time that the plaintiff lost when she returned to the State Revenue Office and although I have some difficulty interpreting the evidence given by the relevant officer, I accept that a significant amount of time was lost. However, this must be placed in context that the plaintiff was off after the transport accident for some period of time and then again was off undergoing further surgery and the like. In any event, it is at the present time that I must assess whether or not the injury is serious and to this extent, I note that the plaintiff alleges she has lost about nine days off work since commencing with her present employment.
(h)
Although accepting that the plaintiff clearly does have ongoing psychological consequences, it would be inappropriate on all the evidence to characterise that condition as “severe”.
Conclusions
61 Accordingly, I dismiss the application and will hear the parties on the question of costs.
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