Pavlesin v Transport Accident Commission

[2016] VCC 1411

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-02724

SUZANA PAVLESIN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 August 2016
DATE OF JUDGMENT:	4 October 2016
CASE MAY BE CITED AS:	Pavlesin v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2016] VCC 1411

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Serious injury – Chronic Pain Syndrome – psychiatric impairment – respiratory impairment

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Katanas v Transport Accident Commission [2016] VSCA 140; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491; Peak Engineering & Anor v McKenzie [2014] VSCA 67

Judgment:                 Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni QC with Mr D O’Brien	Nowicki Carbone
For the Defendant	Mr G Lewis QC with Mr P Gates	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 24 February 2008 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long-term impairment or loss of a body function”.

4       The body function relied upon by the plaintiff is the respiratory system. 

5       The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6       The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]

[1](2000) 1 VR 79

7       In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked” – see Humphries & Anor v Poljak.[2]

[2][1992] 2 VR 129 at paragraphs [140]-[141]

8       The plaintiff also brought an application pursuant to ss(c) for a psychiatric impairment – a Chronic Pain Syndrome or Somatic Pain Disorder.

9       The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[3][1998] 3 VR 833

[4](1995) 21 MVR 314

10      Winneke P, in Mobilio v Balliotis,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.

[5]Supra

11      A Chronic Pain Syndrome can result in an impairment under sub-paragraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[6]

[6][2005] VSCA 227

12      The plaintiff also initially brought an application pursuant to sub-paragraph (a) in relation to the cervical spine and referred pain into the left shoulder.  However, counsel for the plaintiff indicated that application was not being pursued as it would be difficult to argue that the plaintiff’s condition had a substantial organic basis, or that any organically-based consequences at the present date were serious.[7]

[7]Meadows v Lichmore Pty Ltd [2013] VSCA 201

13      The plaintiff swore two affidavits. She also relied on affidavits from Angelo Giannakoulis (“Angelo”), the paternal grandfather of her twins, sworn 26 September 2015 and her father, Ivan Pavlesin, sworn 10 August 2016.  The plaintiff was cross-examined.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

14      The plaintiff is presently aged forty-one, having been born in November 1974.  She has two children, twins born in 2002. 

15      Having completed Year 12, the plaintiff worked in a number of roles.  Her last employment before the said date was at Target, where she believed she ceased working in around 2007.

16      Thereafter, the plaintiff did some odd jobs, including working with Angelo at his café, and shifts at Krazy Karl’s Toys.[8]   She was sick of retail and wanted to find work as an interior designer, and was researching ways to gain that type of employment at the time of the accident.

[8]Transcript (“T”) 21.  The job at Krazy Karls was when she was working at Target.

17      The plaintiff had not taken any steps before the said date towards working in interior design.  She did not know what training was needed.[9]

[9]T22

18      As at the said date, the plaintiff was working odd jobs and in receipt of a Centrelink single parent pension.  The plaintiff could not remember what jobs she was doing.[10]

[10]T21

19      The plaintiff agreed that it was not correct that she was working at Target as at the said date, as she told a number of doctors.[11]  She could not recall when she last worked at Target before the said date.[12]  She agreed that she set out on her TAC Claim Form that she finished at Target in December 2006.[13] She left Target because there was an issue with vouchers and she “just ended up hating the company”.[14]

[11]T15 – Dr Weissmann, Dr Muirden, Dr Kostos and Associate Professor Doherty

[12]T17

[13]T18

[14]T20

Previous medical history

20      Before the said date, the plaintiff had had some thyroid problems, migraines and rib pain.  She had had some minor left knee pain and back pain, but it did not prevent her from doing anything.

21      The plaintiff could not recall complaining of pain in her neck and shoulders in February 2006.  She could recall having a fall and injuring her back in 2001.[15]

[15]T56

22      The plaintiff had had headaches in about 2007 and some anxiety.  She was prescribed Lexapro, but did not feel the need to take it, and was not referred for any treatment.  The only medication the plaintiff was taking before the said date were hormones for her thyroid.  None of these conditions affected her ability to undertake activities of daily living.

23      The plaintiff agreed she described her pre-accident psychiatric health as “perfect” when examined by Associate Professor Peter Doherty, consultant psychiatrist, in June this year.[16]  She told everyone that, as that was how she felt.[17]  She did not recall any psychiatric referral before the said date.[18]

[16]T14

[17]T23

[18]T74

24      On the said date, the plaintiff’s stationary vehicle was hit from the right by another car (“the accident”).  The plaintiff initially did not recall feeling pain because she was in shock and a state of panic.  She was worried about her children, who were then aged six, and were also in the car, especially her daughter who had blood on her face.

25      An ambulance attended and gave medical treatment to the plaintiff and her children, although they were not taken to hospital.  The plaintiff was unable to drive her car and she was taken home by her sister.  Later that day, the plaintiff started to experience pain in her neck, left wrist and left knee.

26      In the days following the accident, the plaintiff kept having flashbacks, thinking that she or her children could have been killed.  A couple of days later, she felt she could not breathe and she saw a doctor.

27      A few days later still, the plaintiff could not breathe properly.  She blacked out and was taken to Western Hospital Emergency, where she was admitted and was an inpatient for about a week.  She was then diagnosed with asthma.

28      When it was suggested to the plaintiff that her first post-accident complaint of breathlessness was in fact when she attended the hospital two months later, the plaintiff confirmed she thought the first attendance was within a few days of the accident.[19]

[19]T50

29      Prior to that time, the plaintiff had never had trouble breathing or been diagnosed with asthma.  She was also feeling pain in various parts of her body after the accident, but was not concentrating on that, because she was so concerned about not being able to breathe.

30      The plaintiff could not recall a number of pre-accident attendances with her doctor complaining of dizziness, stress, anxiety, nausea and problems with sputum, including a complaint of being unable to breathe in October 2004.[20]

[20]T54

31      The plaintiff could not recall attending Western General Hospital two months before the accident complaining of dizziness, headaches and panic attacks, as well as low-grade sinus congestion.[21]  She could not recall telling Dr Rosario around that time that she had six months of dizziness and could not breathe once or twice a year.[22]  She probably recalled having the flu but she could not clearly remember.[23]

[21]T58

[22]T58, T64

[23]T59

32      In her TAC Claim Form, the plaintiff agreed she denied having had any problems with her neck and respiratory system prior to the accident.[24] In re-examination, she stated that she had been prescribed Ventolin before the accident.[25]

[24]T61

[25]T75

33      After arriving home following the accident, the plaintiff started to experience pains in her neck, back and wrist.  These pains have continued since.

34      In her affidavit sworn in August 2015, the plaintiff described ongoing respiratory problems that had become debilitating.  She had had several asthma attacks that required hospitalisation.

35      The plaintiff’s psychiatric state had been severely affected by the accident.  She had been told she had symptoms of Post-Traumatic Stress Disorder (“PTSD”), and she felt constantly sad since the accident.  She experienced increased levels of anxiety, and feared that she would be involved in another accident, and was constantly worried about her children’s safety.

36      The plaintiff was then taking Symbicort, Akamin, Panadol Osteo, Panadol, Mobic, Solone and Cymbalta.  The dosage thereof depended on the activities the plaintiff undertook.

37      The plaintiff was then seeing Dr Frost and other practitioners at the Caroline Springs Clinic. 

38      For the physical pains in her neck and back, the plaintiff’s general practitioner had prescribed Mobic and other painkilling medication including Panadol Osteo, which she took on an ‘as needs’ basis. Back injections from her general practitioner in 2013 provided limited relief, and the plaintiff still had back pain, which worsened with activity.

39      The plaintiff initially consulted psychologist, Rosa Villella; however, because of difficulty making appointments, she started seeing Andre Gomez.

40      The plaintiff had constant pain in her lower back, made worse by prolonged postures or walking.  She found she often had to get up and stretch out a lot.  On a drive to Echuca, her mother had to stop the car twice to let the plaintiff get out and stretch her back.

41      The plaintiff also continued to experience constant neck pain radiating to her left shoulder.  She had difficulty lifting her left arm above a certain point, and used Deep Heat to massage the area around the left side of her neck.  She also had difficulty turning her neck.

42      The plaintiff had had physiotherapy from numerous therapists at Back in Motion; however, stopped she stopped that treatment in October 2014 when funding was ceased.  She felt as though her condition had deteriorated as a result.

43      The plaintiff then had limited movement in her left wrist, reduced strength, and pain, and was required to wear a splint for an extensive period after the accident.  As a result of that injury, she was limited in picking up heavy items with her left hand.  This was difficult because she was left-handed. She also had to use her right hand for driving.

44      Since the accident, the plaintiff had developed extensive problems with her respiratory system.  This was first diagnosed only days after the accident when she was unable to breathe and was admitted to Western Hospital.

45      Some doctors considered that condition related to stress and anxiety, and others have diagnosed chronic asthma.  The plaintiff often experienced shortness of breath and had a constant wheezing in her chest.  From time to time, she had sputum in her mouth which seemed to froth.  She had been admitted to hospital several times for these problems.

46      Dr Vicinic and Dr Frost prescribed Symbicort, Ventolin and Solone for the plaintiff’s respiratory condition.

47      These respiratory symptoms interfered with the plaintiff’s ability to work, in that she was scared of having an attack at work, and that caused an increase in her stress levels.  She would also have to have a lot of time off when she was hospitalised when attacks occurred.

48      These respiratory symptoms interfered with the plaintiff’s domestic and leisure activities, in that she found a shortness of breath when attempting to exercise or walk more than 600 metres at her own pace on flat ground.  She experienced an increase in breathlessness due to exposure to fumes.  Breathlessness was also exacerbated by undertaking household chores, and she required help with caring for and entertaining her children.  The attacks could come on at any time, and the plaintiff was bedridden when they did.  Since the prescription of Solone and Symbicort, she had been able to avoid hospitalisation.

49      Since the accident, the plaintiff had continued to have symptoms of post-traumatic stress, including memories of the accident, anxiety, nightmares, and changed emotions, including an increase in sadness.  She had been advised by psychologists that she had symptoms of PTSD and they helped her to understand this condition.  She understood some effects of the condition could be permanent, and she was concerned she would never be able to get better.

50      The plaintiff experienced constant anxiety, stress and depression since the accident.  She tried to smile and act normal in front of people, because she did not want them to think she was ill, but when she arrived home, she often experienced emotional breakdowns.  She felt useless and worthless, and worried about whether she was a good mother.

51      The plaintiff continued to experience anxiety when driving or as a passenger.  She was very vigilant, and would shout out for the driver to stop.  She experienced flashbacks and found it difficult to drive past the accident scene.

52      Due to the stress of the accident, the plaintiff developed a skin condition, rosacea, which she understood may be from stress or as a side effect of medication.  She takes strong medication for that condition, prescribed by her dermatologist, Dr Rutherford.  As she felt that medication made her condition worse, she changed to Minocin, which was then being prescribed by her general practitioner.  It assisted her skin condition, and she was now able to cover the skin redness with makeup, but the plaintiff was concerned if she ever became intolerant to that medication, or ceased medication, the skin condition would return.

53      The plaintiff would like to go back to work, having worked at Target for ten years; however, since the accident, she had been told by her doctor she should not be working due to her psychological state, and that upset her.  The plaintiff would like to return to work, and had always been a hard worker.

54      The plaintiff felt she was unable to work because of her continuing panic attacks, as well as the respiratory condition.  She also had pain in her back and neck which she believed would cause her difficulties holding down a job.

55      Since the accident, the plaintiff had tried to do a few shifts at Angelo’s café, for which she was paid about $50 a shift.  These were very difficult, and she found it very hard going, although he was sympathetic to her problems.  She did not believe she could do such a job on a regular basis due to her pain problems.

56      The plaintiff agreed that she had told a number of doctors that she had not worked since the accident.  She could not recall deposing that she was paid $50 per shift by Angelo.  He gives her money to help out the family.  She goes to the café for breakfast and then may stay for an extra hour or so and do the banking or help clean tables.[26]  This may have happened about eight times this year.[27]

[26]T24

[27]T26

57      The plaintiff did not tell Centrelink she was receiving this money because it was “just the twins’ grandfather helping them out”.[28]

[28]T47

58      The plaintiff could not recall telling Dr Rosario in November 2008 that she had started work in a takeaway café two months earlier and was working five days a week, Monday to Friday, from 10.00am to 3.00pm.[29] She had discussed returning to work with Dr Rosario but she told the plaintiff she thought she was not ready to do so.[30]  

[29]T31

[30]T26

59      The plaintiff could not recall discussing with Dr Slattery a return to work in late 2010 and early 2011.  She did not start looking for work as she kept “relapsing”. When that occurred, things went “fuzzy” and the plaintiff could not see and she started to shake.  MatchWorks wanted her to look for work but she did not, as she was not ready to do so.[31] 

[31]T29

60      At the time of the accident until February 2015, the plaintiff was living with her parents, who helped support her and the children.  If she had a bad day with any of her conditions, she would be bedridden and required her parents or sister to pick up and look after the children.  Now that she lived alone with the children, the plaintiff occasionally required her mother to come and stay, or she would stay at her parents’ house overnight when the symptoms were particularly bad.

61      The plaintiff moved out of her parents’ home in February 2015 because it was embarrassing at the age of forty-one to be living with her parents.[32]

[32]T71

62      The plaintiff tried to be independent and do housework herself, but she had difficulty, particularly due to her breathing and physical condition.  She attempted to mop and vacuum; however, she could only use her right hand.  Sometimes she cleaned only half the house, and completed the other half a couple of days later.  She also attempted to cook; however, did so slowly, and cooked simple dishes, and often ate takeaway or went to her mother’s for dinner.

63      The plaintiff continued to have difficulty completing the grocery shopping.  She often shopped for smaller items; however, she took her children or family members with her when she was doing a big shop.  She sometimes left items in the car until someone could take them into the house.

64      The plaintiff’s sleep was often disturbed at night due to pain.  If she turned on her left side, the pain in her wrist and left side of her neck was aggravated; however, if she turned to the right, her back pain was aggravated.  It was very difficult to get comfortable, and she constantly woke up in the middle of the night.

65      Nightmares of the accident also woke the plaintiff up.  She occasionally heard ringing and a noise that sounded similar to the accident.  She had been told by a psychologist that noise related to flashbacks of the accident.  The plaintiff tried to take herbal medication to help her fall asleep and stay asleep.

66      Before the accident, the plaintiff was happy and outgoing.  Since then, her family and social life had suffered immensely.  She did not like to go out any more because she did not feel confident.  Further, she was worried whether she would have an attack where she could not breathe.

67      The plaintiff had lost a lot of friends as a result of her isolation.  She had tried to go out to a bar for a friend’s birthday recently; however, she felt she could not breathe, and her back pain was aggravated, so she had to go home after a short time.

68      The plaintiff tried to go to places for her children’s sake such as shopping centres, the pictures or the football; however, those activities aggravated her symptoms.  She had difficulty going to the pictures because of her back pain, and, having gone recently with her children, she experienced pain in her lower back while sitting during the movie, and she had difficulty getting up from her seat, and required assistance in doing so.  Noises in the cinema, at the football, and music in shopping centres, may trigger anxiety and cause her to have an attack where she is forced to leave immediately.

69      The plaintiff became very depressed when she thought about how restricted she had become in her activities since the accident.  She tried to do as much as possible for her children’s sake; however, she required extra medication to do so.  She was embarrassed and ashamed about her current physical and mental condition.  She was reminded of the accident whenever she was unable to do a task that she could do previously.

70      In her latest affidavit sworn in August 2016, the plaintiff confirmed she continues to be significantly restricted and in pain as a result of her accident injuries.  She has continuing significant pain and restrictions in her cervical spine and left shoulder for which she receives physiotherapy.  Often the neck pain is quite severe and it continues to radiate into her left shoulder, and at times she cannot turn her head.  That pain fluctuates.  Some days she cannot move her neck at all, and is unable to drive or do many activities of daily living, and her children often miss school.

71      The plaintiff’s has constant pain from her left shoulder down the arm. Her arm hurts if she puts it straight out, but she can move her left arm away from her body on a good day.  She can carry her handbag over her left arm with a crooked elbow.  There are days when she can carry other things in her left hand.[33]

[33]T70

72      The plaintiff does not sleep at all because of her shoulder, back, neck and foot pain.[34]

[34]T69

73      The plaintiff continues to suffer significant fluctuating pain and restriction in her left wrist and wears a brace most of the time.  That pain prevents her from doing many activities of daily living, and makes some personal hygiene tasks difficult. Her daughter, in particular, helps her with personal care due to her spinal pain and restrictions, often doing her hair or makeup, and at times even assists her put on her pants.  This situation is significantly confronting and upsetting, and has had an ongoing impact on the plaintiff’s quality of life.

74      The plaintiff struggles to hold onto an iPad or read magazines.  She struggles to do the dishes, and her children have to do a lot more than they otherwise would have. The plaintiff would prefer they were doing their homework than housework.

75      The plaintiff cannot sweep using a broom because of her left shoulder pain.  Her low back limits her ability to do housework.[35]

[35]T34

76      The plaintiff has continuing fluctuating pain and restrictions in the lumbar spine which can be so severe at times that she struggles to get out of bed. That pain prevents prolonged postures.  Her ability to concentrate or sit and look at a computer is affected.  That pain also prevents the plaintiff from returning to work in a sedentary role such as administration.

77      A full day’s work would be very difficult because of the plaintiff’s shoulder and neck, back and right foot.[36]  All those parts of her body are painful if she drives for too long.[37]

[36]T70

[37]T71

78      The plaintiff continues to have respiratory problems which she has been told is asthma.  She continues to suffer quite frightening panic attacks where she suffers significant shortness of breath.

79      The plaintiff now has to take Cymbalta, steroids and prednisolone to help manage the situation, and these conditions have had a significant impact on her life.

80      Due to her respiratory injury, the plaintiff can no longer jog or vigorously exercise, and she struggles to walk for long periods, and is not as fit as she used to be.  She estimates she had gained about 30 kilograms due to her inability to exercise and as a result of this condition.

81      The plaintiff continues to suffer from ongoing chronic pain, which has particularly impacted on her relationship with her two children, who ask why she cannot get better and be like all the other mothers.

82      The plaintiff continues to suffer from significant anxiety and depression as a result of her injuries and thinking about the accident.  She has also been diagnosed with PTSD.  The accident itself was extremely confronting, as her children, who were then aged six, were in the car.

83      The plaintiff is frightened when the children leave the house.  She is scared something is going to happen to them, whereas before the accident, she was relatively easy going and relaxed.  Now she is wound up and her personality has changed.

84      The plaintiff continues to take significant pain medication and anti-depressant medication, and she is worried about the long-term effects thereof.  At times, the medication makes her feel ill and lethargic, and it has changed her personality.

85      The plaintiff takes Tramadol, but not every day, which helps her function.  She also takes Panadol Osteo and Mobic. This medication helps her back and shoulder pain and eases her wrist pain.[38]

[38]T35

86      Tramadol makes the plaintiff sick in the stomach and she prefers to stick with her other medication as it works and makes her function during the day.  She also takes natural herbs every day.[39] 

[39]T77

87      The plaintiff is presently having five physiotherapy sessions a year with “Andrew”, which is funded by Medicare.[40]

[40]T73

88      The plaintiff receives Centrelink benefits.  She has not been able to return to any form of regular sustainable employment due to ongoing pain and restrictions in her spine, and cannot type because of her left wrist.

89      The plaintiff would describe herself as having a good work history before her children were born.  She is now a single mother and planned to return to work as soon as her twins were old enough to start school and look after themselves.  Due to her injuries, in particular her spine, the plaintiff has not been able to return to any work.  She cannot stand for long, or sit and concentrate.  The loss of ability to return to work has had an ongoing and significant impact on her.

90      The plaintiff has been unable to return to work in retail.  She had planned to become an interior designer before her children were born and wanted to find work in that field after her children went to school, but due to her spinal problems, she cannot stand for long or lift anything heavy.  She cannot do any repetitive tasks and has problems with her left wrist.  The loss of her dream to become an interior designer has had a significant impact on her.

91      The plaintiff continues to receive significant support from Angelo, as a replacement for child support she does not receive from his son.  He is a real father figure to the family.

92      As the plaintiff is a single mother, Angelo provides her with cash gifts and helps with things like the repair of her car and running of the household.  He is very passionate and loves the grandchildren.  He provides the plaintiff with meals at the café.  She would be lost without his support.  Although she finds it significantly humiliating and she would rather be working, she is forced to accept money from him in the best interests of her children.

93      As a result, from time to time the plaintiff attends the café and tries to help out as best she can.  She has become friends with the girls on staff, having attended the café for many years.

94      When the plaintiff has eaten at the café or been provided with any gifts by Angelo, she then cleans up after herself at the café.  She can do basic household tasks, and what she does at the café is no different.  She is afraid at times she might get in the way because she moves so slowly due to ongoing pain, especially in her spine and left wrist.

95      Attending the café is at times the only interaction the plaintiff has with adults.  What she receives at the café is not a wage.  When she cannot go there for a significant period, she still receives cash from Angelo to make up for the child support.  She plaintiff enjoys going to the café, and she has been told she needs to keep as active as possible to aid her rehabilitation. 

96      The plaintiff does exercises at home and is passionate about her rehabilitation. She continues to seek advice and attend doctors’ appointments.  She is worried, however, that since the accident was so long ago, she will never recover.

97      The plaintiff’s personal relationships have been affected by her psychiatric injuries.  She has not been in a relationship since, because she is so restricted in what she can do due to ongoing back pain.  She could not go on dates without standing up and walking around and being embarrassed about her condition.  She is extremely fearful and worried about many situations as a result of her ongoing post-traumatic stress.  She had planned to have another relationship, especially now her children are getting older.

98      Since sustaining injury in the accident, the plaintiff no longer goes out and dances with friends, as doing so increases her spinal pain.  She has caught up with friends a couple of times or they have come to her home.  She would see friends once or twice a month and her children encourage her to go out.[41]

[41]T72

99      The plaintiff has recently moved to a new address.  She has had bars installed in the toilet and shower to help her get up and down as she has difficulties in this regard due to her ongoing spinal pain.

100     The plaintiff hurt her right foot when visiting her sister in hospital in September 2015.  That problem has remained and causes the plaintiff difficulty walking and driving. The medication she takes for her other conditions helps with the foot problem.[42] 

[42]T67

101     The plaintiff was involved in a further transport accident on 19 April 2016 in which she aggravated her right foot and left shoulder pain.  She had x‑rays.  Her shoulder pain did not substantially increase, and she did not lodge a claim for compensation arising out of that accident.

102     Shortly after that accident, the plaintiff did increase her medication because of the increase in left shoulder pain.  She was also provided with Tramadol.  After a number of months, the pain settled down, back to a similar fluctuating level as it was prior to that accident.[43]

[43]T75

103     The plaintiff denied her right foot pain was her main complaint, as Associate Professor Doherty noted on examination in June 2016.  Her shoulder is the worst pain but her right foot was probably the worst pain at that time.[44]  The pain has eased off a lot in her right foot and it now feels like there is a heavy pressure in her foot.[45]

[44]T68

[45]T75

104     The plaintiff’s quality of life has been significantly impacted by her accident injuries.

Lay evidence

105     Angelo Giannakoulis swore an affidavit on 21 September 2015. He runs Truckies Breakfast & Lunch Café (“the café”).

106     Since his son, Jim, and the plaintiff ceased their relationship, he has maintained a close relationship with the plaintiff and his grandchildren, and he considers them a part of his family.  Prior to the accident, he assisted the plaintiff financially as much as possible, and she attended the café with the twins or her friends for meals.

107     Prior to the accident, the plaintiff became friends with members of the café staff and she always tried to help out whenever she attended.  Prior to the accident, she would stay at the café for hours, wiping down tables, mopping, vacuuming the floor, serving customers and stocking up the fridges.  She would also assist by picking up food or groceries.

108     Before the accident, the plaintiff was happy, loud, and vibrant.  She loved her children and tried to do anything for them.  He wanted to give as much help as possible, as his son had little to do with her and the children.

109     For about two years after the accident, the plaintiff rarely came to the café.  She had been hospitalised on various occasions.  One time, when she visited him at home, she complained of difficulty breathing, and an ambulance was called and she was taken to hospital.  He understood that she had had several of these attacks.

110     Although the plaintiff now regularly visits the café, she does not appear to be the same person as pre-accident.  She has good and bad days which she describes, and often comes to the café on a good day.

111     The plaintiff has become visibly stressed and anxious since the accident, and appears to be hyper vigilant, particularly in a car.

112     The plaintiff has told him of her concerns about her ability to be a good mother, and about her financial struggles.  He has offered her a management role and casual employment; however, she has refused several offers, saying she could not commit to scheduled work due to her health.

113     The plaintiff often complains of pain in her hand, and also shoulder pain.

114     The plaintiff continues to try and help out in the café as much as possible.  He does not consider her an employee; however, he offers her money to assist the children, which he would do whether she helped out or not.

115     The plaintiff at times clears plates and wipes down tables or sweeps.  She finds it difficult to take money without trying to help out.  She does cleaning for a short period before sitting down.  On many occasions, the plaintiff has told him she cannot do something, as she is not feeling well that day.

116     Mr Giannakoulis keeps a chair at the back of the shop for the plaintiff to sit and talk to other staff members.  She enjoys getting out of the house, and he enjoys seeing her and the grandchildren.  She has told him that the café is a social outlet for her.

117     The plaintiff worries about her deteriorating health and looking after the children.  She is concerned about her financial future and her ongoing pain.  She is no longer the happy person he once knew, and he will often find her sitting down deep in thought.  She tries to be an independent mother as she always has been to the twins, but this accident has immensely affected her ability to be that person.

118     Ivan Pavlesin, the plaintiff’s father, swore an affidavit on 10 August 2016.  The plaintiff lived with Ivan and his wife until she moved out in February 2014.

119     Since the accident, the plaintiff has constantly complained of her injuries, and he has noticed she is in pain from her facial expressions.  He understood she hurt her neck, back, left shoulder and left wrist in the accident.

120     Mr Pavlesin often drives the plaintiff to physiotherapy and general practitioner visits.

121     Since the accident, he has observed the plaintiff is more anxious and has difficulty with breathing.  She has also had many panic attacks, the first occurring shortly after the accident.  She has been hospitalised for this problem on a number of occasions.

122     Mr Pavlesin and his wife are often called to look after the children when the plaintiff is particularly bad, and often she and the children have stayed over for a few days until she felt better able to cope.

123     Mr Pavlesin has seen and knows the plaintiff has difficulty carrying anything heavy, mainly due to her shoulder, wrist and back pain.  He and his wife regularly take her shopping for groceries and help with the heavy items.

124     Mr Pavlesin has seen the plaintiff has difficulty standing for long periods.  When she is doing the dishes, she will often have to stop and sit down and rest, and will complain of increasing back, shoulder and wrist pain, and may have to take medication.  His wife often helps her with cooking and cleaning.

125     The plaintiff has developed a red rash on her face from the stress and medications for her injury.

126     The plaintiff has become less sociable since the accident, and does not really go out anywhere much to socialise with friends.  She has become a different person since the accident and her persona has changed.  She is constantly complaining of pain from her injuries.  She is now very anxious and experiences panic attacks, has difficulty breathing, and shakes when these attacks occur.

The Plaintiff’s medical evidence

Treaters

127     The plaintiff attended Western Regional Health Centre on 6 July 2004 and did not attend thereafter for five years until April 2009.  She was not provided with any specific treatment in relation to the accident.  The plaintiff had mentioned cervical and thoracic pain which she attributed to the accident and she had treatment with physiotherapy and paracetamol.

128     The plaintiff was referred to Dr Rutherford, dermatologist, in June 2009 regarding patches of depigmentation on her chest.  He thought it unlikely this was related to the accident.

129     Dr Rodrigues from Western Hospital wrote to Dr Rosario on 15 July 2009, having reviewed the plaintiff that day. He confirmed the plaintiff had a few medical problems, including anxiety, depression, hypothyroidism and asthma, which was mild and persistent.  She was an ongoing smoker.

130     The plaintiff complained of episodes of shortness of breath, and she had a cough and discomfort in the chest.

131     Dr Rodrigues thought there was a big element of anxiety to the plaintiff’s symptoms.  He told her to learn some relaxation techniques.  He then intended to continue her on Seretide, and thought she needed to be started on a Rhinocort nasal spray.

132     The plaintiff presented to Western Hospital Emergency on 4 January 2010 with an exacerbation of her shortness of breath and she was still being worked up as a possible asthma.

133     The plaintiff had physiotherapy treatment from Back in Motion, commencing in February 2011.  She was last seen in October 2014.

134     The plaintiff was referred by Dr Slattery to Rose Villella, mental health social worker, commencing counselling in late August 2011.

135     As of October 2011, Ms Villella thought the plaintiff was unfit for work, and that forcing her to do so would make her condition worsen.  The plaintiff then suffered from a range of symptoms such as panic attacks, difficulty breathing, disturbing memories and dreams of the accident, difficulty concentrating, disturbed sleep, easily startled, and very low energy levels.  She presented displaying symptoms of anxiety, panic, grief, depression and trauma, which she attributed to the accident.

136     Ms Villella thought the plaintiff had experienced significant psychological distress as a result of her accident, and that the initial injury had been, and continued to be, compounded by her continuing illness.  Her loss of wellbeing, her difficulties in breathing, and her panic attacks, left her feeling both depressed and anxious, and it was a great distress to her that no medical treatment had yet been successful in treating her physical health.

137     Following that February 2012 report, the plaintiff underwent thirteen further counselling sessions until 2 October 2013, during which there was no significant improvement noted in her condition.

138     During the period subsequent to February 2012, the plaintiff occasionally reported experiencing suicidal thoughts and feelings, which arose as she saw no overall improvement in her physical wellbeing and capacity to work.

139     It was Ms Villella’s wish that the plaintiff’s condition may have improved since last seen in October 2013.  She thought the plaintiff presented as a caring mother and a person who had been committed to and was fulfilled by being gainfully employed.  She considered the plaintiff’s loss of her ability to work had had a dire effect upon her outlook, and those repeated bouts of illness and pain had eroded her confidence and positivity.

140     Dr Gomez, psychologist, initially saw the plaintiff for psychological treatment on 26 May 2015, having been referred by Dr Frost. 

141     In his report of July 2016, Dr Gomez noted that throughout her treatment, the plaintiff had expressed her sense of hopelessness, as she felt she was not able to improve her physical injuries, despite her commitment to her recovery and best efforts.

142     The plaintiff had reported a worsening of her psychological wellbeing in recent months.  She stated she had been experiencing increased physical pain ever since she was denied access to physiotherapy.  She reported her injuries had had a significant impact on her life.

143     Dr Gomez thought the plaintiff’s presentation was consistent with depressed mood most of the day almost every day, markedly diminished interest or pleasure in all or almost all activities most of the day nearly every day, significant weight gain, inability to sleep nearly every day, psychomotor agitation and fatigue or loss of energy nearly every day, as was the case with feelings of worthlessness, excessive or inappropriate guilt, and diminished ability to think or concentrate, or indecisiveness.

144     Dr Gomez thought if there was no or only minimal improvement in the plaintiff’s physical wellbeing, her psychological condition was likely to deteriorate further.

145     In his view, the plaintiff was not currently able to perform pre-injury employment from a psychological perspective due to her symptoms of Major Depressive Disorder.  This was the current diagnosis, with the original diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood prior to the deterioration in her condition.

146     Dr Gomez thought it essential the plaintiff continue psychological treatment to consolidate progress and prevent deterioration of her condition, and a further twelve months of fortnightly sessions was required.

147     Whilst the plaintiff had been observed performing certain tasks at the café, Dr Gomez thought there was not footage of the pain, both physical and psychological, that the plaintiff experienced over the following days and sometimes weeks as she pushed herself beyond her physical limitations.

148     Dr Frost from Modern Medical in Caroline Springs reported in September 2015, having first seen the plaintiff on 16 June 2014.

149     During that time, Dr Frost thought the plaintiff’s physical symptoms had not improved.  They had fluctuated, and her back and shoulder of recent months deteriorated.  Her other injury was the psychological impact. Anxiety and depression continued to be present, and the plaintiff had gone back to Dr Gomez, psychologist, as she was not doing well.

150     Dr Frost thought the plaintiff’s injuries were consistent with the accident, and they impacted on her whole life, including her normal duties, home duties and any recreational activities.

151     Dr Frost considered the plaintiff needed to continue with the counselling and she required regular physiotherapy. He thought a review with an orthopaedic surgeon may be appropriate, but no further investigations were required.

152     In Dr Frost’s view, the plaintiff’s injuries had definitely not stabilised.  In his view, the interaction between physical and psychological issues was also another dynamic that was being addressed with counselling.

153     Dr Frost organised investigations of the plaintiff’s shoulders and cervical spine, and the left shoulder in August 2015.

154     In his most recent report of 10 August 2016, Dr Frost noted, upon watching the recent DVDs, his first observation was the freedom with which the plaintiff was moving around which was not the case in his consulting room.

155     However, Dr Frost noted that there was separate evidence that showed the plaintiff had continuing issues with shoulder bursitis, demonstrated on x‑ray of the left shoulder and a suggestion from her physiotherapist for further treatment.

156     Dr Frost noted the plaintiff did not use her arms above horizontal in the DVDs so he could not make observations there, only to describe the physical findings from investigations and treatment.  He thought the plaintiff did not appear to be limited in her lumbar movement, such as getting in and out of the car and walking up the stairs, not using a railing to brace herself.

157     With respect to the plaintiff’s psychological state, Dr Frost noted that she did not appear anxious or distressed when being filmed.  In his view, that was starkly different to the events in the consultations, and indeed feedback from the plaintiff’s treating psychologist.  The feedback from that practitioner on 7 July 2015 was that the plaintiff had returned to see him as she was struggling with the slowness of her recovery and the frustration she was feeling with it.  It was overwhelming her life, and that was what he was seeing in consultations with her. His colleague, Dr Parker, wrote a referral for counselling based on the plaintiff’s history on 12 January 2016.

158     Dr Frost noted there was definitely a significant difference to the vision and his experience with the plaintiff in the consulting rooms.  He had followed the ongoing care from due to her accepted accident injuries. The observations in the DVDs were not showing anxiety, withdrawal or psychological dysfunction. 

159     Dr Frost thought that the plaintiff’s left shoulder MRI showed chronic issues consistent with the injury described by her.  Her lumbar spine and PTSD symptoms seemed far less at the time of surveillance, compared to during consultations with him.  He was making visual judgments only with those observations.  The three people he had mentioned were concerned enough by the plaintiff’s presentation to recommend ongoing treatment. 

Post-accident hospital attendances

160     On 28 April 2008, when the plaintiff presented to the Emergency Department of the Western Hospital, asthma was diagnosed.

161     It was noted the thirty-three year old without a history of asthma, presented with a one-week history of increased SOB and wheeze.  Over the past day, she described worsening SOB plus cough, productive of green sputum.

162     Dr Rosario was asked to organise spirometry given the likely diagnosis of asthma.

163     On 20 November 2008, the plaintiff attended the Emergency Department at the Western Hospital.  The presenting problem was “short of breath” since that morning, unrelieved with Seretide.  It had become worse over the course of the day.  The past history was noted to be recent admission with chest infection.

164     It was noted that the plaintiff was a thirty-four‑year-old lady with a recent diagnosis of asthma in April.  She had a past history of twenty cigarettes per day, but she stopped in April 2008 and started smoking again one month earlier.  She had stopped Seretide two months ago as per respiratory team.  She was feeling worsening symptoms in the last week, and today shortness of breath plus wheeze, plus unable to speak full sentences.  Presented to ED and given three Ventolin nebs with good effect.  The plaintiff agreed to stop smoking, and an asthma plan was given.

165     The plaintiff was admitted to Western Health on 4 January 2010 and discharged the following day.  The principal diagnosis was asthma, unspecified.

166     Dr Gilman at the Western General Hospital saw the plaintiff in Outpatients in March and September 2010.

167     The plaintiff presented to the Emergency Department at Sunshine Hospital on 19 May 2014.  The diagnosis was asthma.

168     It was noted the plaintiff had a history of asthma, and chronic bronchitis.  She presented with a week of increasing shortness of breath and wheeze associated with cough with white-grey phlegm, sore throat, but no fevers or chills.  She had had increasing Ventolin use that day, and self-administered oral prednisolone. 

169     On examination, the plaintiff had mild work of breathing. Speaking full sentences.  There was a wheeze throughout.  She was treated with Augmentin DF and Rulide but was just discharged with five days of oral prednisolone.

Medico-legal evidence

170     The plaintiff was examined by psychiatrist, Dr Laura Cooney, on the defendant’s behalf in November 2010.  The plaintiff denied any past psychiatric history prior to the accident.

171     The plaintiff complained of left wrist pain on and off, mid back pain, left knee pain, a respiratory condition, and a facial rash.

172     From a purely psychiatric point of view, Dr Cooney thought the plaintiff had a partial work capacity, fit to work in customer service, initially about four hours a day, three days a week.

173     Dr Cooney diagnosed the plaintiff as suffering from a chronic PTSD and also an Adjustment Disorder with Mixed Anxiety and Depressed Mood, contributed to by the psychological effects of her respiratory condition, her chronic intermittent pain, her facial rash, and her daughter’s accident-related injuries.

174     Dr Cooney considered the plaintiff’s apparently under investigation respiratory condition may in fact be partially or fully contributed to by anxiety and panic attacks.  If asthma was diagnosed, this may be worsened and/or precipitated by activity.

175     The plaintiff told Dr Cooney that she suffered from chronic intermittent pain due to the left wrist, mid back, and, to a lesser extent, knee injuries that were sustained in the accident.

176     Dr Cooney thought the plaintiff’s PTSD was now chronic and mild to moderately severe and unlikely to change unless there was further treatment such as specialised cognitive therapy.  The plaintiff told her she did not want to take psychotropic medication.  She thought the plaintiff may also benefit from seeing a psychiatrist, and she strongly recommended the plaintiff be examined by a respiratory physician.

177     Dr David Weissman, consultant psychiatrist, first examined the plaintiff in March 2012.

178     The plaintiff told him that at the time of the accident, she was working full time at Target.  She had been there for ten years, and worked very hard.  She advised her pain kept getting worse, and she was not able to return to work.

179     At the outset, Dr Weissman stated there did not appear to be any obvious pre-existing psychiatric condition or mental injury, and on the surface, the plaintiff appeared to have a good premorbid level of functioning.

180     Dr Weissman then thought the plaintiff seemed to present with complex medical psychiatric co-morbidity.  There certainly seemed to be at least a strong psychiatric, psychological, emotional and behavioural contribution and component to her symptoms.

181     Dr Weissman noted the plaintiff certainly appeared to be very anxious during the interview.  Furthermore, she appeared somewhat childlike, regressed and dependent.  Overall, he thought she had significantly suffered emotionally as a result of the accident.

182     On purely psychiatric grounds alone, directly due to the accident circumstances, Dr Weissman thought the plaintiff had sustained, developed and continued to experience mild to moderate post-traumatic stress and anxiety symptoms and traumatisation features.  He thought, however, she did not have a full-blown PTSD.

183     Dr Weissman considered the plaintiff also seemed to be suffering from both a generalised Anxiety Disorder and Panic Disorder associated with agoraphobia, avoidance and withdrawal.  She also experienced mild mixed reactive depression and anxiety symptoms and features as a consequence of, or secondary to, her accident-related pain, injuries and disabilities.  She had sustained and developed a Mild Chronic Adjustment Disorder with Anxious and Depressed Mood.  Finally, he thought she had probably developed some symptoms and features of a Chronic Pain Disorder associated with psychological factors, and a general medical condition.

184     Psychiatrically, Dr Weissman thought the plaintiff would be incapacitated to perform any paid employment, pre-injury duties, suitable duties, or alternate duties, on the open labour marketplace.  He recommended she should be seeing a general practitioner, a clinical psychologist for cognitive therapy, a consultant psychiatrist, and a respiratory physician.  He then thought her psychiatric prognosis was quite uncertain and guarded.

185     Dr Weissman considered the plaintiff was then suffering from at least moderate accident-related psychiatric, psychological, emotional, and behavioural symptoms, signs, features and disturbances, with at least a moderate decline and deterioration in many aspects, facets, and modalities of her quality of life since the accident, with associated functional impairment.  He considered she presented with at least a moderate degree of disability.

186     On re‑examination in September 2015, the plaintiff told Dr Weissman that on average, she had panic attacks every second day, which lasted about one or two minutes.  She experienced symptoms of shortness of breath, shaking and blackouts, and did not sleep at all.

187     The plaintiff confirmed that before the accident, she was a superwoman, and reiterated her life was perfect.

188     Dr Weissman confirmed his earlier comments that there was no relevant pre-existing or unrelated psychiatric or psychosocial condition.  In this context, he was not sure why the plaintiff had coped in an extremely poor and very dysfunctional manner since the accident.  The answer might be she had some premorbid psychological and emotional vulnerability, but he had no proof or evidence of that.  In relation thereto, he noted the plaintiff presented like someone who had some pre-existing borderline and histrionic personality traits, though again, there was no proof or evidence of those.

189     Dr Weissman thought it would be absolutely vital to obtain detailed up-to-date reports from the plaintiff’s treating psychologists and also to obtain an expert orthopaedic report.  He did not know whether the plaintiff had a bona fide identifiable organic pathology, and that might assist him in determining how much of a Chronic Pain Disorder she had.

190     Dr Weissman thought the plaintiff continued to suffer from, and present with, multiple widespread psychiatric, psychological, emotional and behavioural symptoms, features and disturbance.  She reported at least mild to moderate, and close to moderate, classical and discernible chronic PTSD symptoms and traumatisation features directly due to the accident.  She reported mild to moderate chronic anxiety and depressive symptoms, themes and features, partly complicating her post-traumatic stress but mostly occurring as a consequence of, or secondary to, her accident-related pain, injuries, disabilities, limitations and restrictions.

191     Dr Weissman thought the plaintiff continued to suffer from moderate generalised anxiety symptoms and from what almost certainly were panic attacks with a degree of avoidance, agoraphobia and social withdrawal.  Finally, she had marked pain and somatic focus and preoccupation on top of her actual organic pathology.

192     Dr Weissman thought the plaintiff’s moderately severe amount of functional impairment post-accident seemed to be part physically based and part psychiatrically based.  The psychiatric and the physical were difficult to disentangle and delineate because of the probable additional diagnosis of Chronic Pain Disorder.  He thought the plaintiff’s psychiatric symptoms, conditions and impairment had stabilised.

193     Considering the nature, severity, extent and chronicity of her psychiatric, psychological, emotional and behavioural symptoms, her anxiety, panic, depression, post-traumatic stress, persistent Pain Syndrome, pain, illness, and disability conviction, as well as her deconditioning and her time out of the workforce, the plaintiff was totally incapacitated for all work.

194     On re‑examination in May 2016, Dr Weissman noted the plaintiff was very anxious and distressed, and very pain and somatically focussed.  She was upset about what he had put in his previous report.

195     Dr Weissman concluded the plaintiff was suffering from a Chronic Pain Disorder associated with psychological features and a general medical condition also known as a Somatic Syndrome Symptom Disorder, mild to moderate Post-Traumatic Stress and Anxiety Syndrome associated with traumatisation features, Chronic Adjustment Disorder with Depressed Mood and Anxious Mood of moderate intensity or severity, and generalised Anxiety Disorder symptoms, and limited symptom panic attacks.

196     Dr Weissman considered the plaintiff’s psychiatric prognosis for the future was very uncertain and guarded, and most likely relatively poor, negative and unfavourable.

197     Dr Weissman provided a supplementary report in August 2016, having been shown the 2015 DVD.

198     Based on what was seen on the film and what the plaintiff had told him in May 2016, the plaintiff’s appearance and activities in the surveillance was not inconsistent with her history, and what she was shown doing physically was not necessarily inconsistent with the history.

199     Dr Muirden, rheumatologist, examined the plaintiff in December 2011.

200     Dr Muirden noted the plaintiff reported ongoing musculo­skeletal pain, although his examination had not identified any significant organic based pathology to explain the pain. 

201     Dr Muirden pointed out that musculo­skeletal pain from whatever cause can be aggravated by stress, depression and other psychological factors, and he suspected that this point may be relevant to the plaintiff’s musculo­skeletal symptoms.  Her main clinical problems were of asthma, anxiety and panic attacks, and he was not in a position to give expert opinion in that regard.

202     Dr Muirden thought the plaintiff should be assessed by a respiratory physician and by a consultant psychiatrist.  He thought her fitness would be improved by a regular exercise program supervised by a physiotherapist.

203     The plaintiff was seen by Dr Segal, dermatologist, in March 2012.  He thought she had developed acute and ongoing rosacea due to the stress and discomfort associated with the accident.

204     Mr Kierce, shoulder surgeon, examined the plaintiff in May 2012.  He thought the plaintiff exhibited dysfunction of the cervical and lumbar spine with limitation of movement and some muscle spasm, but there was definitely a functional overlay, as was evidenced by the global weakness of her left arm.

205     Mr Kierce thought from the description of injury, it would certainly be consistent with the plaintiff’s symptoms that she could have sustained soft-tissue injuries to her cervical and lumbar spines in the accident, but it was now over four years since then, and he would have expected that she would have resolved those soft-tissue injuries at least within a year or two unless there had been evidence of significant damage to the spine radiologically.

206     Associate Professor Bruce Love, orthopaedic surgeon, examined the plaintiff on 3 September 2015.

207     Associate Professor Love thought the plaintiff appeared to have suffered soft-tissue injuries to the neck and shoulder as a consequence of the accident, and the symptoms had been ongoing and had only marginally responded to treatment.  He thought the plaintiff would have some minor restriction of social, domestic and recreational activities.  In view of the prolonged absence from work, it was unlikely she would return in the near future.

208     Associate Professor Love re‑examined the plaintiff on 20 April 2016 when essentially his view was unchanged.  He noted the plaintiff appeared to have a chronic ligamentous soft-tissue injury in the cervical spine, but precise pathology had not been identified.  Symptoms had now been present for many years without apparent resolution, and the plaintiff’s diagnosis therefore was poor in terms of ultimate resolution of symptoms.

209     Associate Professor Love thought ongoing treatment should be conservative, and he could not see the current condition resolving in the foreseeable future in view of the already considerable length of time since the accident.

210     Dr Jonathon Burdon, respiratory physician, first examined the plaintiff on the defendant’s behalf on 21 February 2011. 

211     The plaintiff told him about a week after the accident she noticed she was becoming very short of breath, with cough and sputum production, and she had chest pain.  She attended the Western General Hospital and was admitted for about two weeks.  She had subsequently been an inpatient on six further occasions with exacerbations of her respiratory symptomatology.

212     The plaintiff told Dr Burdon she had attempted to stop smoking over the last three or four months and was presently smoking four cigarettes a day.  She started smoking at sixteen, and at her maximum would have smoked ten cigarettes a day.

213     Dr Burdon noted the plaintiff’s past medical history was unremarkable, and in particular, there was no past history of asthma or atopic disorders. The plaintiff had told him prior to the accident she was working at Target, but had not worked thereafter.

214     Dr Burdon noted the plaintiff did not appear to have sustained any physical injury in the accident.  She had however subsequently developed respiratory symptoms associated with cough, sputum production and breathlessness.  They had continued, and were worse in the morning and evening and on exposure to inhaled environmental irritants.

215     Dr Burdon thought the plaintiff’s history suggested that she had developed asthma following the accident.  He noted there was no family history of asthma or atopic disorder, but the history given was highly suggestive she had developed this condition. 

216     Dr Burdon organised lung function tests which were carried out on 21 February 2011. In his subsequent report following a re-examination in June 2015, he noted those tests fell within the normal range, and the respiratory impairment was zero.

217     Under the heading “discussion”, Dr Burdon noted that stress was a recognised trigger for worsening asthma in persons with the condition pre-existing.  However, it was not recognised to cause asthma, and that was a very rare situation.  The plaintiff had no past history of asthma or atopic disorders, and there was no other logical explanation for symptoms which had developed immediately after the accident.

218     Dr Burdon considered that the plaintiff had apparently subsequently developed bronchial asthma which would not affect her life expectancy but would be lifelong.  She would require inhaled bronchodilators and steroids regularly in the future, together with the occasional use of oral antibiotics and steroids.

219     Dr Burdon thought bronchial asthma would interfere with the plaintiff’s work, in that she may require periods of absence when her asthma symptoms had become more severe, and the bronchial asthma would interfere with her domestic and leisure activity, in that she is now short of breath on exercise and requires home help with household chores and management of her children.

220     Dr Burdon noted within a few days of the accident, the plaintiff developed symptoms consistent with a diagnosis of bronchial asthma.

221     Dr Burdon re-examined the plaintiff in June 2015.  In his report relating to this examination, Dr Burdon confirmed his opinion under “Discussion” in his earlier report.

222     Dr Burdon noted that the plaintiff said she had had no issues with breathing for about three weeks, but previously there were nights when she had to take Symbicort.  She was able to walk on level ground at her own pace without too much difficulty.  She experienced some slight shortness of breath when walking around the supermarket.  She really became more exhausted than anything, indicating it was likely tiredness rather than shortness of breath that was experienced on exercise.

223     The plaintiff continued to have an intermittent cough and some chest pain, but it was much less than it had been in previous years.  She was then smoking about three cigarettes a day.

224     Noting the post-accident diagnosis of asthma made by others, Dr Burdon stated, as previously opined, he questioned the diagnosis of asthma, as there appeared to be no causative factor, although he noted the plaintiff had become stressed and anxious and now suffered from panic attacks.

225     Dr Burdon repeated his earlier view that stress and anxiety were recognised triggers in persons with pre-existing asthma but they are not recognised to cause asthma.

226     Overall, and with the information he had at hand, while strictly speaking it was just possible that stress and anxiety had caused the asthma, Dr Burdon considered that was unlikely, and was more of the view that the plaintiff’s breathlessness was related to stress and anxiety rather than asthma.

227     Dr Burdon thought the plaintiff would continue to suffer from breathlessness indefinitely.  That affected her activities of daily living and social and recreational activities, in that her exercise capacity had been reduced somewhat.  From a respiratory point of view, he thought she was capable of engaging in remunerative employment, provided that did not expose her to fumes or dusts, to the extremes of temperature of climate, or more than mild exertion.

228     It appeared to Dr Burdon the plaintiff suffers from psychological complaints of panic attacks, stress, and anxiety.  He was unable to comment on those, as they were conditions which fell outside his expertise.

229     Dr Burdon provided a supplementary report, having been provided with extensive medical material.  Summarising his earlier opinion, he thought overall it was more likely than not that the plaintiff’s breathlessness was related to stress and anxiety rather than asthma.

230     Dr Burdon commented on a letter to Dr Rosario and respiratory physician, Dr Gillman, dated 31 March 2010, in which he noted the plaintiff had a past history of asthma-COPD diagnosed two years ago, and that he considered the plaintiff suffered from chronic bronchitis. In light of that information, Dr Burdon thought it was certainly possible that the plaintiff could have been suffering from cigarette-smoking airways disease before the injury.

231     Dr Burdon commented there was no objective evidence the plaintiff suffers from bronchial asthma of which he is aware.  Given she had been a cigarette smoker, it was entirely possible she may have suffered from cigarette-smoking airways disease, although her cigarette smoking history was small.

232     Dr Burdon noted it was pertinent that in the absence of any objective evidence of a diagnosis of asthma based on lung-function testing, including a provocation test, he remained of the view that the diagnosis of asthma was not proven.

233     Dr Burdon also noted clinical records of an attendance on 3 February 2003 when the plaintiff apparently complained of tiredness, sore throat, cough, sputum, feeling dizzy, nasal congestion and discharge, stuffy head, sinuses, nasal mucus, stress, and feeling she could not breathe. 

234     Dr Burdon noted that was not the clinical history provided to him by the plaintiff on either of the two examinations; however, those symptoms were consistent with an intercurrent upper/lower respiratory tract infection common in smokers.

235     Noting also the attendance at the Western General Hospital on 5 December 2007 and the visit to the general practitioner a week later when the plaintiff reported she could not breathe, Dr Burdon concluded that none of that information necessarily indicated to him that the plaintiff had a pre-existing history of airways disease. 

236     Dr Burdon thought these earlier complaints were really non-specific.  Reading them in their entirety led him to the view that there was a significant psychological problem on both occasions, which he could not comment on, as it was outside his expertise.

237     On the most recent re‑examination on 18 July 2016, the plaintiff reported continuing respiratory symptoms and she was spitting a lot, experiencing a heaviness in her chest. She also complained of noisy breathing.

238     Dr Burdon stated, as previously opined, he remained of the view, and based on the clinical history as given by the plaintiff, that she had developed asthma as a result of the stress related to the injury and the accident.  There was physiological evidence of airflow obstruction, and there would appear to be no other causative factor.  It was fair to say, however, that stress may lead to breathlessness prompted by psychological causes.  He noted the clinical history given to him by the plaintiff, together with the findings of airflow obstruction on lung-function testing, was not consistent with a diagnosis of psychogenic breathlessness.

239     Dr Burdon confirmed his view that the plaintiff suffers from asthma, with current symptoms of cough, sputum production, shortness of breath, chest pain and tightness.  He thought the prognosis for the asthma was good, in that it was very unlikely to affect the plaintiff’s life expectancy, but she would require ongoing treatment.

240     Dr Burdon confirmed the breathlessness and other respiratory symptoms would impact on the plaintiff’s living, social and recreational activities, reducing her exercise capacity.  He thought the symptoms would continue indefinitely.

241     Dr Burdon thought the plaintiff could do gainful employment in sedentary or light duties only, with no exposure to aggravating factors.  It was possibly, nay likely, that she would require significant periods of time off work when her symptoms were more severe.

242     Dr Burdon was provided with the 2015 surveillance.  The film did not change his view.  It suggested the plaintiff was capable of undertaking normal household chores and leisure activities.  It also indicated she would be capable of undertaking full-time work, provided it was sedentary or light.  Given the film only showed her walking, he was unable to comment on activities, including employment activities, regarding more than mild to moderate exertion.

243     Dr Burdon noted the plaintiff did not appear at any time in any of the images to be short of breath.  She had said in February 2011 that she could walk about 600 metres but would be quite breathless by that time.  The film did not show any shortness of breath, thus was not strictly in accord with the plaintiff’s history given to him.

244     Dr Burdon was required for cross-examination. In short, he confirmed his opinion in the following terms.

245     There was no evidence of asthma prior to the accident, although breathlessness had been described by the plaintiff on a number of occasions.

246     In the absence of a prior diagnosis or existence of an asthmatic condition, Dr Burdon did not think the accident was causative of any present asthmatic condition.

247     Dr Burdon confirmed his view that stress and anxiety could act as a trigger to a pre-existing asthmatic condition but were not causative of it.

248     Further, Dr Burdon did not consider the plaintiff presently suffers from asthma.  He was unable to attribute any diagnosis to her complaints of breathlessness or link that to the accident.[46]

[46]T108

249     In examination-in-chief, Dr Burdon confirmed that the results of the February 2011 testing were in keeping with the diagnosis of asthma.  He confirmed that there is a genetic predisposition to asthma, and also there are occupational causes in relation thereto.  The plaintiff had no relevant family history.[47]

[47]T81

250     When Dr Burdon saw the plaintiff on 15 June 2015, he continued to question the diagnosis of asthma, as there appeared to be no causative factor.  On the information he had, while strictly speaking it was just possible that stress and anxiety had caused the asthma, it was unlikely.  He considered the plaintiff’s breathlessness was related to stress and anxiety rather than asthma, and he still held that view.[48]

[48]T84

251     It was certainly possible that previous complaints of breathlessness were a symptom of asthma, but it would be a differential diagnosis.[49]  He confirmed the June 2015 report was essentially a confirmation of his earlier opinion, although he did not undertake formal testing on that later occasion.[50]

[49]T84

[50]T85

252     Dr Burdon confirmed he was told of the 28 April 2008 diagnosis of asthma 2008, and that there was nothing in the December 2007 notes to indicate the plaintiff was suffering from asthma at that time.[51]

[51]T88

253     Following the most recent examination in July this year, Dr Burdon confirmed, based on the clinical history as given to him by the plaintiff, she had developed asthma as a result of the stress related to the injury and accident.[52]

[52]T89

254     Dr Burdon noted that it was fair to say one of the problems with the diagnosis of asthma was that it was bandied around a fair bit.[53]  Whilst that condition had been diagnosed post-accident, with respect to his colleagues at the Western General Hospital, the most junior people worked in Accident and Emergency, not lung specialists.[54]

[53]T92

[54]T95

255     Dr Burdon is still of that view, and is still troubled about whether there or not there is a diagnosis of asthma.  He is taking the opinions of colleagues that have treated her as being fair and reasonable, but that does not necessarily mean that they are right or he is right or wrong.[55]

[55]T96

256     The results of the testing on the first occasion were consistent with the diagnosis of asthma but does not prove it.[56]

[56]T96

257     Dr Burdon agreed it was possible that stress could be a trigger to asthma, but the caveat with that is, to his knowledge, there was no family history.  He disputed that he was satisfied the plaintiff suffered from asthma after the first test – it was consistent with the diagnosis of asthma.[57]

[57]T99

258     In cross-examination, Dr Burdon stated that based solely on his February 2011 testing and the findings of respiratory physician, Dr Ward, in August 2008, the degree of confidence with which he could predict the plaintiff to be asthmatic was low.[58]

[58]T103

259     It did not matter whether the initial complaints of asthma after the accident were days or months after.[59]  In any event, he did not think the plaintiff had asthma now.[60]

[59]T108

[60]T108

260     Dr Burdon confirmed his present diagnosis was not one of asthma.  He had been provided with material as to the plaintiff’s pre-accident condition where there was no evidence of asthma or diagnosis thereof, albeit there were complaints of breathlessness and sputum.  In the absence of a diagnosis of asthma before the accident, it cannot be a trigger, because there is nothing to trigger.  Stress and anxiety afterwards cannot be a trigger, because asthma does not exist before.[61]

[61]T109

261     The plaintiff has complained of breathlessness to Dr Burdon and other specialists. He did not put a diagnosis on that, because it could equally be a case of breathlessness if someone simply “went boo to you”.[62]

[62]T109

262     Dr Burdon thought it was a reasonable summation that he did not attach the current complaints of breathlessness to a particular diagnosis, nor could he ascertain the cause for it. [63]

[63]T109

263     In re‑examination, Dr Burdon confirmed that just because he said there was no other logical explanation, it did not mean to say that the plaintiff had asthma.  There would have to be “a swag” of other things to do before he accepted that diagnosis.  If the plaintiff came to see him as a treating doctor, she did not have asthma until he had proved it.[64]

[64]T110

The Defendant’s medical evidence

264     On 22 October 2004, the plaintiff attended Kingsville Medical Centre complaining of breathlessness.

265     On an attendance at the Western General Hospital Emergency Department on 5 December 2007, it was noted the complaint was of headaches and dizziness, “chest pains may be attributable to panic attacks, cannot breath properly”.

266     The plaintiff’s symptoms were facial and scalp tightness, light-headedness, intermittent blurred vision, intermittent chest pain and intermittent dizzy spells.  Those symptoms had been going on for the last six months at least but had been increasing in frequency and severity over the past few weeks.  The plaintiff had a history of hypothyroidism and was taking Thyroxin.  She had significant social stressors, was single and unemployed, with two children at home and both parents unwell.

267     On examination, the plaintiff appeared somewhat anxious.  The Emergency physician noted the aetiology of all her symptoms was somewhat unclear.  He thought she may have some low-grade sinus congestion and anxiety may also be playing a significant role in that, and that chest pain may be attributable to panic attacks.

268     The following week, the plaintiff attended Kingsville Medical Centre where a history was noted of “dizzy for six months, stopped working January 2007, cannot breath”.

269     Dr Ward, respiratory registrar at Western General Hospital, wrote to Dr Rosario on 6 August 2008, advising the plaintiff had been seen in Outpatients that day as a follow-up for a recent admission with acute respiratory failure in the setting of a lower respiratory tract infection and a first episode of asthma.

270     Dr Ward noted the plaintiff had had recent respiratory function tests which showed a borderline low obstructive defect but no acute bronchodilator response.

271     On examination, the plaintiff’s lungs were clear with no wheeze, and she appeared to have stable disease on Seretide, two puffs a day.  It was noted the aim would be to wean her down, and she had been changed to one puff a day. 

272     The plaintiff was discharged from the clinic and Dr Rosario was advised of this aim.

273     The plaintiff attended the Western General Hospital on 28 April 2008 with breathing problems and abnormal breathing.  Final assessment was asthma and a chest infection.  The plaintiff had shortness of breath.

274     It was noted there was a pre-existing history of hypothyroidism. The hospital note reads as follows:

“33yo female lives at home with family. PT has EHX of hypothyroidism, smokes cigarettes, and has no PHX of respiratory problems.  PTCO a painful tightness in her chest – SOB for 2/52, and attended her GP about her symptoms 1/52 with no resolution.  PT presented to another GP 2 by 7 who began her on a course of antibiotics and a script for Ventolin.  Over the next few days PT had mild relief from her Ventolin spray.  Today at approximately 1500 PT felt her SOB becoming worse and couldn’t get any relief from Ventolin use.  PT’s mother has called MAS.  MICA number 3 have arrived prior to Footscray and administered 500 milligrams of Atrovent and 10 milligrams of salt salbutamol with good result.  PT taken to Western General for investigation.”

275     The plaintiff was seen in the Outpatients Clinic at the Western General Hospital on 28 January 2009 by Dr Rodrigues, respiratory consultant.

276     Dr Rodrigues noted the plaintiff had a few medical problems in the form of bronchial asthma, hypothyroidism, and was an ongoing smoker.

277     Dr Rodrigues noted the plaintiff had had a few presentations to the hospital with acute exacerbation of asthma.  She had mild persistent symptoms due to that condition.  He did not think she was very compliant with her bronchodilator regimen, as at the last time she was advised to be on prednisolone but she did not really get around to complete it properly.

278     On examination, the plaintiff appeared symptomatically stable.  She had good air entry but prolonged expiration.  Lung function tests done a few months earlier showed a mild obstructive pattern.

279     Dr Rodrigues thought the plaintiff then needed to stay compliant with her bronchodilator, with one puff twice a day of Seretide.  She needed to take Ventolin, two puffs with a spacer, when she had acute symptoms.  He advised her to wean off prednisolone and come and see the general practitioner towards the end of her tapering.  He also advised her to stop smoking, and discussed strategies.  He thought the plaintiff needed to have her thyroid profile rechecked, and he told her to try some relaxation strategies.

280     Dr Rosario, general practitioner, reported to the defendant in February 2010, noting the plaintiff presented in February 2008 with a history of being involved in a car accident the previous day.  She then complained of pain in her lower chest and in her neck, back and shoulders.

281     Dr Rosario thought the plaintiff appeared to have sustained a musculo- ligamentous strain due to a whiplash injury.

282     Dr Rosario detailed subsequent attendances over the following months. In November 2008, the plaintiff advised she had commenced work in a takeaway food café two months prior and she was working five days a week from Monday to Friday between 10.00am and 3.00pm.  There was no mention of musculoskeletal pain.

Medico-legal evidence

283     Given the plaintiff did not pursue the application pursuant to ss(a) in relation to the cervical spine, the reports of Dr Kostos, rheumatologist, Dr Kevin Fraser, and also Dr Peter Boys, orthopaedic surgeons, are of limited relevance to the remaining applications in relation to respiratory and psychiatric impairment.

284     Dr Kostos examined the plaintiff in October 2010 for the purpose of an AMA assessment.  He then assumed the plaintiff’s current problems were restricted spinal movement resulting from the accident but it was not possible to make a precise diagnosis, noting she certainly had a stiff neck and stiff thoracic spine.

285     Having seen the plaintiff in January 2015, Dr Fraser was of the opinion, having been provided with a number of medico-legal reports, there was agreement between those examiners that there was not any ongoing physical basis for the plaintiff’s musculoskeletal symptoms.  Rather, the various psychiatric reports would seem to support the contention that there may be a psychological basis for her symptoms.

286     In his view, an imputative minor soft tissue injury resulting in back and shoulder girdle pain had long since resolved.  He noted there was a long history of anxiety and depression ante-dating the transport accident and he felt this was likely the cause of the plaintiff’s ongoing symptoms.

287     Dr Boys, orthopaedic surgeon, first examined the plaintiff in September 2015 and re-examined her in July this year. 

288     The initial diagnosis was musculoligamentous injury, cervical spine, soft tissue left shoulder subacromial bursitis, soft-tissue injury left wrist with minor restriction of movement and musculoligamentous injury to the lumbar spine.

289     Following re-examination in July 2016, Dr Boys thought the plaintiff had a Chronic Pain Disorder occurring in the context of an Adjustment Disorder with Anxiety and Depression.

290     Dr Boys noted the plaintiff had entrenched perceptions of disability and that her prognosis for improvement would be considered poor.  He confirmed his view that no musculoskeletal condition was affecting the plaintiff’s activity at work or home.  He believed the non-organic complaint of her presentation predominated.  He considered the degree to which the plaintiff’s psychological condition impacted upon her ability to enjoy activities of daily living or return to the workforce should be the subject of expert psychiatric opinion.

291     Dr Boys thought the 2015 DVD showed no specific restrictions of activity but did not alter his diagnosis. 

Psychiatric evidence

292     Associate Professor Peter Doherty, consultant psychiatrist, first examined the plaintiff in March 2015.

293     The plaintiff told Associate Professor Doherty that at the time of the accident, she was employed as a sales assistant in retail.  She had returned to work after maternity leave, undertaking part-time hours three days a week, with a total of 23 hours a week.

294     Associate Professor Doherty was provided with numerous medical reports and clinical notes as to the plaintiff’s pre and post-injury condition. He was advised that in February 2005, she was prescribed Zoloft when she was complaining of being tired, stressed and anxious. She was commenced on Lexapro in December 2007 when she was reporting dizziness, pressure in her head, darkness comes in towards her, tension headaches and at times she complained that she could not breathe and that occurred once or twice a week.

295     Associate Professor Doherty thought the plaintiff presented with a wide range of current psychiatric symptoms and there was currently a theme of pain running through her complaints.  Her pre-existing personality characteristics were on display on examination.  He noted she was expansive, highly reactive and loud.  Her presentation was tinged with particular personality traits.  She was dramatic at times, histrionic and always highly expressive.

296     Associate Professor Doherty considered there was no straightforward single psychiatric diagnosis to explain the plaintiff’s situation.  He considered the most likely diagnosis was that of a Somatic Symptom Disorder which reflected the presence of physical symptoms of distress which preoccupied a person and led to distress, persistent anxiety over health and disproportionate worry about health.

297     Associate Professor Doherty thought there were also very mild features of traumatisation. He did not consider a post-traumatic stress diagnosis was appropriate, as the criteria had not been met.  There were, in his opinion, elements of an Adjustment Disorder.  However, the clinical presentation was that of an intensification of somatic concerns and physical complaints with a psychiatric diagnosis of Somatic Symptom Disorder better fitting the clinical picture.

298     Associate Professor Doherty thought there was also an element of overstatement of functional impairments.  The plaintiff’s self-report of her functional limitations was not in keeping with known pathology or the effects of any pain and other psychological symptoms on her capacity.

299     In his view, the plaintiff had a pre-existing propensity as a personality trait to be particularly reactive, emotional and also vulnerable to stress.  The accident facilitated the development of a wider array of physical and emotional symptoms and gave an explanation for their presence.  Associate Professor Doherty thought that the plaintiff’s prognosis was guarded and she was unlikely to do well from a psychological perspective as the personality traits had become well entrenched.

300     However, he thought the plaintiff’s psychiatric condition was mild and did not incapacitate her.  He considered treatment required was the use of a low dose of anxiolytic antidepressant medication and coping techniques from psychological therapy.

301     Associate Professor Doherty thought the plaintiff’s condition made a minimal actual impact on her activities of daily living and interfered minimally with her social and recreational activities.  There was minimal and not significant interference in her social and recreational activities and a small impact on her ability to return to part-time work.

302     Associate Professor Doherty reported the plaintiff suggested that because of her symptoms, she would be inconsistent and unreliable, but he noted she had been so with previous psychological therapy.  The impact on work would be mild.  He thought the nature of the plaintiff’s personality was that she was expressive and would overstate the impact of her symptoms.  That tendency was evident in her completion of self-report checklist of symptoms where she scored herself in the extreme range.

303     Associate Professor Doherty provided a supplementary report in August 2015, having been provided with a range of medico-legal and treating medical practitioners’ reports.  That additional material did not cause him to change his opinion and confirmed the varied presentations of the plaintiff.

304     Associate Professor Doherty noted the plaintiff’s presentation was currently predominantly one of pain rather than mood symptoms. The reported symptoms met the diagnostic criteria for Somatic Symptom Disorder; however, he thought that was mild and did not significantly limit work, domestic or leisure activities.

305     Associate Professor Doherty also suspected that during periods of anxiety the plaintiff’s breathing deteriorated and it appeared to him that Dr Burdon shared this view.

306     Associate Professor Doherty provided a supplementary report, having seen surveillance carried out in 2015.

307     Associate Professor Doherty noted the level of activity demonstrated in the DVD footage in which the plaintiff appeared to walk unrestricted was more than he would have expected based on her presentation on examination in March 2015.  At that time, the plaintiff complained of pain and stood on one or two occasions during the course of the psychiatric interview.  She complained of pain and appeared to be in mild discomfort when interviewed and examined.

308     Associate Professor Doherty thought the activities shown on the DVD footage did not indicate that there was any restriction or hindrance in the plaintiff’s physical activities.  In his view, the level of activities shown was consistent with his opinion as expressed in his report, that there was minimal interference in the plaintiff’s capacity to work or undertaken social or recreational activities.  The DVD footage did not cause him to alter his diagnosis or conclusions. 

309     Associate Professor Doherty provided a further report in October 2015 following a request for further funding in relation to treatment from Dr Gomez, the plaintiff having recently returned to psychological therapy following a deterioration in her condition.

310     Associate Professor Doherty thought that psychological treatment was for the plaintiff’s pre-existing psychological condition.  He considered the accident-related psychological condition diagnosed as a Somatic Symptom Disorder with predominant pain did not require further treatment.  Should there be a recent deterioration in the plaintiff’s psychological state, he thought that deterioration was related to non-accident related factors and reflected the natural history of the plaintiff’s pre-existing psychological and personal vulnerabilities.  In those circumstances, he thought the defendant was not liable for the ongoing psychological treatment.

311     Associate Professor Doherty re-examined the plaintiff on 29 June 2016.  He then had available to him Dr Weissman’s reports of September 2015 and March 2012.

312     The plaintiff told Associate Professor Doherty she is not working and last worked at the time of the accident.  She told him she undertook no voluntary work and her source of income was Newstart. She also told him that she is smoking a bit more now, and over the last two months has been smoking about six cigarettes a day.

313     The plaintiff told Associate Professor Doherty she was having a lot of mini panic attacks which she said were not too bad.  Her back started getting really bad and she told him she was having horrible back issues.

314     The plaintiff reported experiencing mini anxiety attacks where she would shake and breathe badly.  She had some big attacks at the end of March 2015 and the beginning of April.  She then thought she was going backwards.  She tried to smile and be happy but said “I’m going to jump off a bridge”.

315     The plaintiff complained of sleep difficulties generally with pain but also worrying thoughts.  She sometimes had dreams and nightmares with different context. Her worst pain was in her right foot. She was anxious all the time.  Her concentration and memory were really bad.

316     The plaintiff told Associate Professor Doherty she had never seen a psychologist or psychiatrist before the transport accident and she was perfect at that stage.

317     Associate Professor Doherty thought the plaintiff’s psychological vulnerabilities and the nature of her personality was clearly on display on that examination.  She came across as an extroverted, dramatic person prone to exaggeration who tended to be talkative, telling him of a range of vague, somatic, physical symptoms.  She was emotionally reactive and at times laughing and smiling and at no time had a pervasive, Depressive Disorder or persistent downturn in mood.

318     In Associate Professor Doherty’s opinion, the plaintiff’s pain and physical symptoms represented symptoms of a Psychiatric Disorder or a Somatic Symptom Disorder.  He thought she had an excessive concern about physical symptoms, predominantly pain, and that concern was excessive and interfered with her daily functioning and caused distress.

319     Associate Professor Doherty confirmed his earlier view that there was no PTSD.  Further, he thought there was no ongoing presence of a diagnosable psychiatric condition of a generalised Anxiety Disorder or Panic Disorder; however, there were times when the plaintiff presented as very anxious and panicky. 

320     Associate Professor Doherty thought the prognosis continued to be guarded, noting the plaintiff had not made significant progress in social or occupational activities.

321     Having been provided with extensive medical material, Associate Professor Doherty thought at most, a diagnosis of Somatic Symptom Disorder with predominant pain was the appropriate psychiatric diagnosis.

322     In his view, there was a risk with this plaintiff that multiple psychiatric diagnoses would be given as she reports many symptoms and they fluctuate in intensity and would vary depending on circumstances.  An example of that was Dr Weissman’s opinion, who diagnosed four, nearly five, separate psychiatric diagnoses in the same person.

323     Associate Professor Doherty thought that the risk with that approach was that the plaintiff’s view of her disability and impairments was forced and entrenched.  As a consequence, many attempts at treatment were tried because symptoms varied.  Such treatments would likely fail and the plaintiff would become increasingly entrenched in her view of her functional impairments and incapacity.

324     Associate Professor Doherty repeated his comments as to the plaintiff’s personality and pre-accident clinical symptoms and vulnerabilities and referred to the 2007 attendance at the Emergency Department where her physical symptoms were assessed to be anxiety driven.

325     Associate Professor Doherty thought the plaintiff’s antidepressant medication taking behaviour – that is, taking it many times during the day to hype herself up – was reflective of her personality, her vulnerability and her psychological needs, and not that of a clinical need for additional or higher dose of antidepressant medication.  In his view, no additional treatment from a psychiatrist or a psychological point of view was now necessary or appropriate.  He considered the accident-related psychiatric condition did not need recommencement of psychological treatment or counselling.

326     Associate Professor Doherty thought the plaintiff’s psychiatric condition had some, but not significant, impact on her current activities of daily living.  He noted the predominant complaint was one of exhaustion and easy fatigue.  However, she presented to psychiatric examination and was alert, reactive and emotional, and well made up with attention to her appearance.  He did not see any objective evidence of lethargy or fatigue.  Further, he thought the disorder made no significant impact on the plaintiff’s work capacity.

327     Whilst the plaintiff reported a range of symptoms, including exhaustion, anxiety, being easily fatigued and having poor concentration, in Associate Professor Doherty’s view, there was no objective evidence that any of those symptoms were reflective of the effects of a psychiatric condition.

328     Associate Professor Doherty confirmed his earlier view there was no clearly identified diagnosable psychiatric condition pre accident.  However, there was significant personality and psychological vulnerabilities at that time which would stay present for some time afterwards.  He thought the plaintiff’s non-organic complaints were reflective of her personality and psychological vulnerabilities and she tended to be histrionic and somaticize.  That is, at times of stressful circumstances or conflict, there was the production of physical symptoms and thus multiple engagements with health services and would have an impact on her capacity for consistent and reliable work.  He thought she required a coordinated approach rather than the plaintiff attending multiple general practitioners and specialists, and there should be a clear coordination of care provided to her.

Surveillance

329     There was 13 minutes of film of the plaintiff on 28 August 2015. Mid-morning, she was shown carrying a bag in her left hand which she explained was Angelo’s banking bag.[65]  

[65]T37

330     At 11:50 am, the plaintiff entered the café. Initially she was shown wearing an apron whilst rearranging table settings and emptying ashtrays into the rubbish bin. For 4 minutes, she was shown using a short handled broom to sweep the floor whilst holding a long handled pan in her right hand. She was later shown walking to her car at 2:33pm. She did not think she had been at the café for two hours on that occasion.[66]

[66]T38

331     There was four minutes of film taken on 7 and 10 January 2015. The plaintiff was shown walking along the street and getting in and out of her car. At one stage, she was shown sitting in her car turning her head to the left to adjust her seatbelt.[67]

[67]T39

Overview

332     The plaintiff’s application was ultimately brought pursuant to ss(c) for a Chronic Pain Disorder and an organically-based respiratory condition pursuant to ss(a).

333     Counsel for the plaintiff acknowledged there was a soft-tissue injury originally and that had been overwhelmed pretty much by an emotional response.[68]

[68]T125

334     Accordingly, the other application in relation to ss(a) was abandoned after counsel for the plaintiff conceded there would be difficulty satisfying the two limb test in Meadows v Lichmore[69] and that the plaintiff’s initial physical condition was more appropriately dealt with pursuant to ss(c) in terms of the approach described by Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[70]  

[69][2013] VSCA 201

[70]Supra; T124

Credit

335     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71]

“… 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.”

[71](2010) 31 VR 1 at paragraph [12]

336     Counsel for the defendant submitted veracity was particularly important in this case, because there was simply no objective evidence of anything in terms of radiology and spirometrics.[72] 

[72]T116

337     Counsel for the defendant was critical of the plaintiff’s inaccurate history to doctors that she was working at Target at the time of the accident, a factor which it was submitted affected their ultimate conclusions.[73] 

[73]T117

338     Further, it was not the true situation that, pre accident, the plaintiff’s health was “perfect” or that she had had had no trouble breathing as she told examiners and also set out in her TAC Claim Form.

339     Also, the plaintiff’s histories as to her first report of breathing problems and attendance at hospital after the accident are inaccurate, having first attended two months later and not a couple of days after the accident.[74]

[74]T119

340     It was submitted the plaintiff’s evidence about not having worked since the accident was misleading given her involvement at the café thereafter.[75]  She herself described her involvement in shift work for which she was paid $50 per hour in her first affidavit.  Also, Dr Rosario noted that in November 2008, the plaintiff had reported work the previous two months, five days a week at the café. 

[75]T119

341     It was submitted that if the plaintiff was in fact doing shift work as Dr Rosario described and that situation had a very serious impact upon the way the plaintiff presented her case.[76]  Whilst the DVD of the plaintiff at the café was just a snapshot, taken in conjunction with her other evidence, it was submitted there is considerable doubt the plaintiff has not worked since the accident as she now claims.[77]

[76]T120

[77]T120

342     Further, it was submitted that whilst the plaintiff claims a severe restriction of spinal movement, clinical examinations by number of practitioners show full and free spinal movement.  She was shown moving freely in the surveillance film. Having seen the film, Dr Frost, thought the plaintiff’s presentation was clearly at odds with how she presented in his rooms, anxious and distressed.[78]

[78]T122

343     Dr Fraser made similar comments after he had seen the film, noting that when he saw the plaintiff in 2015, she was moving very slowly in an exaggerated fashion.

344     Counsel for the defendant described the plaintiff as being an “extremely vague historian, being the best way you could put it, but it still made her a very unreliable historian”.[79]

[79]T129

345     Counsel for the plaintiff submitted that the plaintiff was doing her best to answer questions and, indeed, in cross-examination, she gave answers which were clearly against her interest.[80] She had a poor memory and she lacked concentration, which was consistent with her psychiatric condition and ought not be held against her.  In any event, it was submitted there was objective evidence which supported her claim.[81]

[80]T135

[81]T136

346     It was submitted the plaintiff, “being all over the place” in cross-examination, did not really reflect her credit.  It reflected her psychological condition.[82]

[82]T138

347     Further, it was submitted that there should not be an adverse finding against the plaintiff in terms of her credit which would entitle her claim to be dismissed.  There is objective evidence and support for her case, especially in relation to the psychological component and also in relation to asthma. 

348     In my view, the plaintiff was an unreliable and at times, untruthful witness. Incorrect histories to doctors of having been working at the time of the accident were not explained. I do not accept that the plaintiff’s pre-accident health could be described as perfect, with dizziness and breathing problems requiring hospital attendance only two months before the accident.

349     Whilst the film is only a snapshot, I considered the plaintiff’s relatively free range of movement shown on the DVD at odds with her description of constant, widespread and debilitating pain and significant restriction.

350     During the hearing, I raised the issue of the plaintiff’s demeanour with counsel. Although I commented that I did not feel her memory was selective, I thought there was an incredible vagueness generally in her evidence and answers and that she had quite an unusual presentation.[83]

[83]T128

Is there a severe psychiatric impairment?

351     Whilst Zoloft was first prescribed in February 2005 and Lexapro prescribed two years later, as I indicated to the parties, I did not consider that this is an aggravation case where the principles in Petkovski v Galletti[84] apply.  There was no submission to this effect by counsel for the defendant.[85]

[84] [1994] 1 VR 436

[85]T133, T137

352     Since the accident, the plaintiff has not been referred for psychiatric treatment and the only psychiatrists who have opined in this case have done so in a medico-legal context.

353     Dr Weissman diagnosed a range of psychiatric conditions including a Chronic Pain Disorder associated with psychological features and a general medical condition (Somatic Syndrome Symptom Disorder). Associate Professor Doherty also diagnosed a Somatic Pain Disorder.

354     At a much earlier stage in 2010, Dr Cooney diagnosed a chronic PTSD and also an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

355     Treating psychologist, Andre Gomez, initially diagnosed an Adjustment Disorder with Mixed Anxiety and Depression and more recently, a Major Depressive Disorder

356     Most medical practitioners who examined the plaintiff in relation to her physical complaints considered she was suffering from a psychologically-based Pain Syndrome.

357     The issue is whether the consequences of that psychiatric condition are “severe”.

358     Since the accident, the plaintiff has complained of panic, difficulty breathing, flashbacks, disturbed sleep, difficulty concentrating and very low energy levels.

359     Counsel for the plaintiff submitted the plaintiff’s symptoms are severe.[86]  If they were related to her personality that did not help the defendant because it had to take the plaintiff as it found her.[87]

[86]T141

[87]T139

360     Counsel for the defendant submitted that whilst both psychiatrists recently diagnosed a Somatic Pain Disorder, that condition is such that the patient elaborates, exaggerates, and “goes out to the end of the spectrum with complaints.”[88] Accordingly, the plaintiff’s complaints should be considered in this light.

[88]T131

361     For the reasons set out below, I am not satisfied any psychiatric condition presently suffered by the plaintiff is severe.

362     Firstly, I have serious concerns as to the plaintiff’s credibility, as discussed above, and consider that she has exaggerated the level of her symptoms and restrictions both to medical examiners and when giving evidence.

363     Whilst a psychiatric disorder may have severe consequences though the suffer has not undergone much treatment,[89] as counsel for the defendant submitted, since the accident, psychiatric treatment had been “light”.

[89]Katanas v Transport Accident Commission [2016] VSCA 140 at paragraph [20] per Ashley and Osborne JJA

364     As was stated in Papamanos v Commonwealth Bank of Australia:[90]

“… There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word ‘severe’ in the definition of the Act has been held to be a word of stronger force than ‘serious’.”

[90][2013] VCC 1491 at paragraph [68] per Judge O’Neill

365     The plaintiff saw Ms Villella, a mental health social worker, from August 2010 to October 2013.  She has been seeing Mr Gomez, a psychologist, only since May 2015.[91]

[91]T130

366     Although Cymbalta is being prescribed, no one has seen fit to refer the plaintiff for psychiatric treatment.[92] In any event, the plaintiff had been prescribed another antidepressant for many years prior to the accident.

[92]T130

367     Whilst counsel for the plaintiff submitted Associate Professor Doherty thought the plaintiff would require psychiatric treatment in the future,[93] he supported a multifaceted approach related to non-psychiatric matters and cautioned against over-treating the plaintiff and her illness belief.[94]

[93]T139

[94]T134

368     Associate Professor Doherty and Dr Weissman differ in their views as to the plaintiff’s capacity for work from a psychiatric view.  Associate Professor Doherty considered there was no significant impact on the plaintiff’s ability to work because of her psychiatric condition, whereas Dr Weissman considered the plaintiff had a reduced work capacity on psychological grounds.[95] 

[95]T140

369     I prefer Associate Professor Doherty’s view in this regard given my findings as to the plaintiff’s credit and her demonstrated ability to attend the café following the accident and the likelihood she has in fact being working there since that time – based on her own affidavit evidence, the history given by her in late 2008 of regularly working in the café and the limited film of her activities at the café.

370     Counsel for the plaintiff submitted that if the plaintiff’s breathlessness is simply part of the accident related Somatic Pain Disorder, the plaintiff succeeds in her application pursuant to ss(c) because that persisting problem requires ongoing medication, and, as Dr Burdon confirmed, her work was going to get affected by it.[96]

[96]T143

371     If the plaintiff’s respiratory condition is not asthma or organically based, but another symptom of a psychological disorder, it was submitted then it was also a severe consequence, because it had resulted in ongoing treatment and other consequences.[97]

[97]T149

372     However, there is no psychiatric evidence to the effect that the plaintiff’s breathlessness is part of her Somatic Pain Disorder or other accident related mental condition.  Further, the plaintiff complained of breathlessness and sought treatment in relation thereto only months before the accident.

373     Whilst Dr Burdon has reported that it was fair to say that stress may lead to breathlessness prompted by psychological causes, in his latest report, he noted the clinical history given to him by the plaintiff, together with the findings of airflow obstruction on lung-function testing, was not consistent with a diagnosis of psychogenic breathlessness.

374     Further, in his viva voce evidence, Dr Burdon confirmed that there was no particular diagnosis of, or cause for, the plaintiff’s complaints of breathlessness.[98]

[98]T109

375     Taking all the evidence into account, I am not satisfied the consequences of any psychiatric impairment meet the higher test of severe.[99]

[99]T137

Respiratory impairment

376     The issue for determination is whether there is a serious accident-related respiratory condition in circumstances where, pre-accident, the plaintiff had complaints of breathlessness but asthma had not been diagnosed.

377     Counsel for the defendant relied on the summary of Dr Burdon’s viva voce evidence that the accident could not trigger asthma where this condition was not present prior thereto.  Dr Burdon also thought that the plaintiff does not presently suffer from asthma and any breathlessness she experiences is not accident related.[100]

[100]T127

378     Counsel for the defendant pointed out that there were symptoms of a respiratory condition a few weeks prior to the accident which were not made known to various post-accident examiners.  Further, the plaintiff told doctors of the onset of respiratory problems, days not months after the accident.

379     It was submitted, save for Dr Burdon, there is no medical evidence to enable the Court to assess the extent of any accident related aggravation. There is no suitably qualified witness with the knowledge of the plaintiff’s respiratory condition before and after the accident who can provide a medical explanation linking any present respiratory problems to the accident. Further, there is no evidence from her treating practitioners in this regard.   

380     Pre accident, the plaintiff had panic attacks, anxiety and shortness of breath.  It was submitted that her continuing hospital admissions thereafter were consistent with that situation.

381     Further, the tests done by Dr Burdon at the Mercy Hospital on 23 February 2011 were considered normal as he confirmed in his viva voce evidence.

382     Finally, the plaintiff describes the respiratory problem as perhaps her most serious incapacity.  Any impairment in relation thereto must be isolated from impairments attributable to any claimed orthopaedic injury and any claim under ss(c).[101]

[101]Peak Engineering & Anor v McKenzie [2014] VSCA 67

383     The plaintiff is presently taking medication for her neck, shoulder, back and right foot.  A range of activities including household chores, shopping, sleep and the plaintiff’s general mobility were all affected by this range of physical problems.[102]

[102]T123

384     Counsel for the plaintiff submitted the plaintiff’s respiratory impairment was organically based.  In the alternative, her breathlessness could be a psychological issue and considered part of the Somatic Pain Disorder as submitted in relation to the ss(c) application.[103]

[103]T150

385     Counsel for the plaintiff relied on the views of post-accident treaters who diagnosed asthma and submitted they should be preferred to Dr Burdon’s opinion.

386     Further, there were inpatient stays for respiratory problems at the Western General Hospital on 15 July 2009, 4 January 2010 and 19 May 2014.[104]  The plaintiff also continues to receive treatment for asthma.

[104]T146

387     It was submitted asthma was not a diagnosis “made in ignorance or just plucked out of the air.”[105]  However, counsel for the plaintiff acknowledged that no practitioner mentioned what caused this condition and there was therefore no evidence it was accident related.[106]

[105]T144

[106]T144

388     Counsel for the plaintiff submitted Dr Burdon had initially diagnosed asthma caused by the accident but had resiled from this opinion expressed in his first report in his viva voce evidence. Because of this change in his opinion, the defendant found it necessary to cross-examine Dr Burdon.[107]

[107]T142

389     Counsel for the plaintiff submitted that Dr Burdon’s clear view was, in the absence of any past history of asthma or atopic disorder, as there was no other logical explanation for it, the symptoms and a diagnosis of asthma related to the collision was a most likely diagnosis.[108] 

[108]T148

390     It was submitted that the Court would be entitled to form the view that, in fact, what Dr Burdon said in his first report was more likely the situation and that there might be some other reason why he has changed his mind.[109] 

[109]T149

391     However, when I asked Dr Burdon about this issue directly, although in his most recent report he diagnosed asthma, as a result of the stress related to the accident, he denied he had in fact changed his mind and confirmed he had said the same thing from the outset.  He agreed he diagnosed asthma on initial examination on the strength of lung function results being consistent with asthma, but this test was not diagnostic of asthma.[110]

[110]T96

392     Following his second examination, he confirmed there was no objective evidence that the plaintiff suffered from bronchial asthma that he was aware of and that the February 2011 testing was normal. He queried the diagnosis of asthma as there appeared to be no causative factor. In his view, it was unlikely that stress and anxiety caused asthma.

393     In re-examination, Dr Burdon confirmed that just because he said there was no other logical explanation, that did not mean the plaintiff had asthma.  If she had come to see him as a treater, the plaintiff did not have asthma until he proved it.[111]  If he saw her for treatment at the present time, he would not diagnose asthma.[112]

[111]T110

[112]T105; T108

394     Whilst asthma had been diagnosed by other medical practitioners since the accident and the plaintiff is being treated in relation thereto, these examiners lacked Dr Burdon’s specialist qualifications in respiratory medicine.[113]

[113]T80

395     Counsel for the plaintiff also submitted that whilst Dr Burdon thought there was no asthma pre accident, and therefore the accident could not act as a trigger for the development of this condition, pre accident the plaintiff had experienced breathlessness – a symptom of asthma as Dr Burdon confirmed – which was triggered by the accident and the breathlessness was therefore accident related.[114]

[114]T146

396     There is however, no medical support for this proposition.

397     Whilst the evidence about the plaintiff’s respiratory condition – asthma or otherwise – is somewhat confusing, there is no evidence that the accident was a cause thereof. Therefore, I am not satisfied that the plaintiff suffers any accident related respiratory condition.

398     Having failed to establish the accident was a cause of the plaintiff’s respiratory condition, I am not required to consider whether any consequences thereof are serious. However, given the plaintiff’s multiple physical complaints, she would face significant difficulty establishing serious consequences relating to the respiratory condition alone.[115]

[115]Peak Engineering v Anor v McKenzie (supra)

399     Accordingly, the plaintiff’s application relating to a respiratory impairment pursuant to ss(a) also fails.

400     The plaintiff’s applications are dismissed.

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