Porter v TAC
[2012] VCC 442
•26 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-06146
| KIMBERLEY PORTER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 March 2012 | |
DATE OF JUDGMENT: | 26 March 2012 | |
CASE MAY BE CITED AS: | Porter v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 442 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986; Application under s.93; Claimed serious injury under paragraph (c) of definition [major depressive disorder; adjustment
disorder; chronic pain syndrome] caused by death of ex-husband in transport accident; exacerbation of pre-existing psychological conditions; Different diagnoses by specialists but favourable prognoses – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with Mr A Hill | Slater & Gordon |
| For the Defendant | Mr J Ruskin QC with Ms N Wolski | Norton Rose |
HIS HONOUR:
Background
1 Ms Porter was born in 1982.
2 During her childhood, her family were members of the Mormon Church. In 1996 she met a Mr Richard Rancie who would become her first husband. She was 14 and he was 16. They married on 16 March 2002 and had one child, Tyler, born 22 March 2004.
3 Regrettably, the marriage did not prove a success. Mr Rancie was ultimately diagnosed with Bipolar Disorder. Whilst he never inflicted any violence either on Ms Porter or her son, she feared he was a danger to himself. His violence was directed to objects rather than towards them. On one occasion, for instance, he punched the wall. Ms Porter feared that the atmosphere created by Mr Rancie’s troubled behaviour would be damaging to their son, so when Tyler was about two months old, she separated from Mr Rancie. They were divorced in January 2005.
4 Whilst both former spouses explored other relationships and Ms Porter had a second short-lived marriage, their relationship improved after the divorce. They continued to have a common interest, namely, the rearing of Tyler. Mr Rancie’s psychological problem meant that he could not make a large financial contribution to the support of Tyler. He made the minimum contribution required by law and supplemented it when he was able.
5 During this period, Ms Porter had sought professional assistance. Whilst they were man and wife they were counselled by Peter Howell, a clinical psychologist who recorded Mr Rancie’s behaviour as “suicidal … erratic, volatile, verbally aggressive, and [exhibiting] violence towards objects”. By December 2007, Ms Porter’s mother was concerned as to her mental health. She prevailed on her daughter to attend a consultation with general practitioner, Dr Caroline Hardy, in her surgery at Carrum Downs. Dr Hardy diagnosed Ms Porter as suffering from depression. She drew up what she described as a mental health plan with a view to treating that depression and referred Ms Porter to Ms Christine Carter of the Frankston Psychology and Hypnotherapy Clinic. Unfortunately, events supervened to make things much worse for Ms Porter. On Boxing Day, 26 December, she received a telephone call from Mr Rancie’s father stating that Mr Rancie had been involved in an accident on Monash Freeway. Ms Porter tried to drive to Royal Melbourne Hospital where she understood Mr Rancie was being treated. She became caught in a traffic jam which a radio news bulletin informed her was caused by a fatal accident on the freeway. She realised that the victim of this fatal accident was Mr Rancie.
6 She viewed his body at Royal Melbourne Hospital, noting the serious head injury. She said:
“The image of his lifeless body has stuck in my head and I frequently have flashbacks about this.”
7 Ms Porter seeks to recover damages for the injuries which she suffered as a result of the accident in which Mr Rancie died. The claim is presumably based on principles which were traditionally described as claims for “nervous shock”. Much of the old jurisprudence on these matters should be regarded as superseded by the decision of the High Court in Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317.
8 Section 93 of the Transport Accident Act 1986 limits the ability which the common law would otherwise give someone in Ms Porter’s situation or for that matter, a person who has suffered direct physical injury in a transport accident to recover damages. Sub-section (2) of s.93 precludes the recovery of damages “in respect of the injury” unless the injury is “a serious injury”. Whilst the following subsection deems an injury to be serious if it yields a degree of permanent impairment of 30 per cent or more, no reliance is based on these principles.
9 It is contended by Ms Porter that she has suffered a serious injury in accordance with the definition of that phrase to be found in sub-s.17 which provides inter alia:
serious injury means—
(a) … ; or
(b) …; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) ….
10 According to a document styled “statement of issues” handed to me at the commencement of this proceeding, Ms Porter contends that her severe mental or severe long-term behavioural disturbance or disorder is constituted by:
(a) Post-traumatic stress disorder;
(b) Depression; or
(c) Codeine addiction.
Expert opinions
11 Mr Lewis SC and Mr Hill, who represented Ms Porter, relied first on evidence from consultant psychiatrist Dr Nathan Serry, who examined Ms Porter for medico-legal purposes. In a report of 8 October 2009, referring to an examination conducted on the same day, Dr Serry recorded no pre-existing psychiatric illness prior to the transport accident but found a psychiatric illness:
“Resulting from the subject accident … best … conceptualised as a chronic adjustment disorder with residual grief features as well as anxiety, depression and features of traumatisation.”
12 He also referred to a “secondary substance abuse issue in relation to Nurofen Plus” a non-prescription proprietary painkiller containing codeine. In a supplementary report of 12 July 2010, Dr Serry adhered to that diagnosis.
13 Dr Nigel Strauss, also a consultant psychiatrist relied on by the Plaintiff, conducted an assessment of Ms Porter on 11 January 2012. Dr Strauss found Ms Porter’s a “complex case”, and observed:
“This young woman suffers from a chronic adjustment disorder with mixed anxiety and depressed mood and she has some features of traumatisation associated with this.”
14 He observed nevertheless, that:
“Her disturbed psychological state currently is mild in its severity. She can manage a full-time job, she manages as a single mother and generally she is independent.”
He agreed that the death of Mr Rancie had had a “significant effect” on Ms Porter. He said, however, that there were other factors operative in her psychological presentation.
15 Dr Alan Jager, a forensic psychiatrist, conducted an assessment of Ms Porter leading to a report furnished on 8 August 2011 carried out for medico-legal purposes on behalf of the Plaintiff. He diagnosed Ms Porter as suffering Post-Traumatic Stress Disorder:
“In relation to the trauma associated with the death of her ex-husband.”
He also diagnosed poly-substance abuse but said it should “be considered to be in early remission” in light of drug rehabilitation which he believed she had undergone in 2010. Dr Jager thought that if Ms Porter could “stay away from illicit substances” he would expect recovery from the post-traumatic stress disorder to “occur between 12 and 24 months from now”. He said:
“With appropriate treatment, she should be able to maintain [her] employment in the long term. As she maintains sobriety, her leisure activities will improve, as well as her ability to undertake domestic tasks. She requires ongoing drug and alcohol education and rehabilitation.”
16 Ms Porter was also assessed by clinical psychologist Mr Peter Howell, who, it will be recalled, had counselled Ms Porter and Mr Rancie during the term of their marriage. Following the accident, he conducted an assessment interview with Ms Porter on 20 May 2008 and six further counselling sessions ending 5 August 2008. Mr Howell records that Ms Porter:
“Sought assistance from me at the recommendation of her parents who reported deterioration in her mood and functioning after the tragic death of her ex-husband, Richard Rancie.”
She sought no further assistance from him after the seventh session.
17 Mr Howell was of the opinion that Ms Porter met the diagnostic criteria for Major Depressive Episode in 2008 and:
“She probably also met the diagnostic criteria for Post-Traumatic Stress Disorder.”
He noted that Ms Porter:
“believed she had been depressed for some time and before the death of her ex-husband.”
18 Mr Howell considered the possibility of a diagnosis of an autism spectrum disorder. He did, however, conclude that she suffered an undiagnosed Attention Deficit Disorder. The signs and symptoms which led him to this conclusion were:
“Having difficulty articulating feelings (dominant visual-spacial capacity compared to auditory-verbal capacity); failure in her life to complete or achieve important goals at school; failure to achieve her potentials in school; impulsiveness and poor decision making; difficulty persisting with tasks to completion; difficulty maintaining focus on a task if this is not interesting to her; having a brother who has been diagnosed with one of these conditions; having social problems at school (being teased and not fitting in); and her general difficulty with life problem solving or decision making.”
He said he believed that Ms Porter’s problems “had become chronic”. He did not feel able to make precise predictions about her work in future.
19 Perhaps the most significant evidence came from Dr Christopher Mulroney who commenced treating Ms Porter at an initial consultation on 14 December 2009. His treatment is continuing and he had his last consultation with Ms Porter as recently as last month.
20 Aside from the mood disorders already referred to in professional opinions, he diagnosed a disorder colloquially described as “ADHD”, that is Attention-Deficit/Hyperactivity Disorder. This disorder, he said, was characterised by either hyperactivity or a tendency in childhood to be distracted. This disorder, he said, progressed through life. Untreated, it got worse rather than tending to resolve. There were significant risks of co-morbidity, that is, the development of further psychiatric disorders flowing from the persistence of the initial disorder, including depression and substance abuse. These co-morbidities, he found, existed in Ms Porter’s case.
21 The evidence disclosed that following the death of Mr Rancie, who was addicted to painkilling medication, Ms Porter found such painkillers in his personal effects and resorted to them herself. Mr Rancie had told her that aside from their effect on physical pain, they tended to numb emotional pain and she resorted to them for this purpose. At one stage she also abused alcohol, though upon referral to a local addiction clinic in Frankston, she was able to quit that addiction “cold turkey”.
22 The addiction to painkillers in the form of codeine based medication such as Nurofen Plus has persisted however. It has been diagnosed by a number of examiners but Ms Porter sought treatment for this for the first time last month as a result of gastric troubles which she was suffering. Dr Mulroney has said that he prescribed a program whereby he sought to wean Ms Porter off the painkillers. This program which entailed decreasing dosage and also extensive counselling both with him and a registered psychiatric nurse in his clinic, and referrals to another practitioner specialising in addiction problems, should, subject to compliance by Ms Porter, result in control of this problem in weeks rather than months.
23 I should also note the evidence of Dr Caroline Hardy provided in a report dated 29 September 2009. Dr Hardy, it will be recalled, was a practitioner on whom Ms Porter attended for treatment for depression two days before the transport accident. As at September 2009, Dr Hardy said in her report:
“In my opinion Ms Porter has full capacity for work now and in the future. This is important for the patient’s self-confidence and self-esteem and part of her treatment.”
24 She described Ms Porter’s prognosis as “excellent”, remarking:
“Most patients have complete remission. The grief process is not something that ends but individuals progress at their own speed and learn strategies to deal with this loss.”
25 Her diagnosis was:
“Insomnia, difficulty in concentrating, difficulty in doing day to day tasks and anhedonia.”
Current treatment
26 Dr Mulroney, who is Ms Porter’s current treating practitioner, said that he approached her treatment by seeking to deal first with the co-morbidity and moving only later to treating her Attention Deficit Disorder. He moved through a number of anti-depressant medications. Dr Hardy, it will be recalled, before the transport accident prescribed Zoloft. Dr Mulroney moved to what might be regarded as a second line anti-depressant treatment, Cymbalta, and eventually moved to Pristiq. Dr Mulroney was not satisfied that the depressive disorder had moved to remission. Nevertheless, he thought it appropriate to move eventually to Dexamphetamine which, as a stimulant, is a treatment for the Attention Deficit Disorder.
Legal considerations
27 The application for Ms Porter is mounted on the basis of paragraph (c) of the definition of serious injury in s.93(17) of the Transport Accident Act. It should be noted that, whilst the general descriptor for serious injuries is “serious”, this paragraph uses the word “severe”. These words are not to be regarded as synonymous. As a member of a five Judge Court of Appeal in Mobilio v Balliotis [1998] 3 VR at 833 at 846 Brooking JA remarked:
“I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”
28 The hurdle for a plaintiff in obtaining a finding under this paragraph is therefore higher than it is under the other paragraphs, and in particular, higher than the hurdle which a plaintiff relying on a purely organic injury has to surmount for success.
29 Mr Ruskin and Ms Wolski submitted that, since on the evidence Ms Porter was already suffering a mental disorder prior to the transport accident, it was necessary in order for her to succeed to demonstrate not merely that her present condition meets the requirement of paragraph (c) of the definition, but that the exacerbation alleged to flow from the transport accident in itself could meet that criteria. So much appears from the decision of the Full Court in Petkovski v Galletti [1994] 1 VR 436. It was necessary, they said, to dissect the operative causes of her present difficulties as the Court of Appeal had done in De Agostino v Leatch [2011] VSCA 249.
30 Mr Lewis and Mr Hill, however, submitted that it was sufficient if it could be found that the injury relied on for the purposes of this proceeding were found to be a material contributing factor. They referred to Grech v Orica Australia Pty Ltd [2006] VSCA 172.
31 Mr Ruskin and Ms Wolski submitted however, that Grech’s case turned on special issues arising out of a period during which the Accident Compensation Act 1985 excluded any right to common law damages for industrial injuries, a so-called “black hole” period. I accept their submissions on this point. The result seems to be that the questions of causation in this proceeding are to be determined ultimately according to orthodox and long-established principles of causation in the law of tort. They are that a tortfeasor takes his victim as he finds him or her. This is the eggshell skull or eggshell psyche principle. Insofar as this is a case of exacerbation, the seriousness or severity of the injury must, for the purposes of s.93, be judged by a consideration of the degree to which the exacerbation or alleged exacerbation worsened Ms Porter’s condition.
32 Mr Lewis and Mr Hill submitted that, in judging whether the requirements of the relevant paragraph of the definition of serious injury were made out, it was appropriate to view Ms Porter’s situation as it would be without the benefit of the medication which she is now receiving. They relied on a decision of the Full Court in Turner v Love [1995] VSC 87 which they said supported this view.
33 The relevant paragraphs of the Judgment appear to be numbers 43 and 44:
“43.There is another matter that may now conveniently be addressed. In our opinion, for the purposes of s.93(17)(c), the consequences of psychiatric injury for an injured person should not be confined to symptoms which it directly produces. Those consequences should include the need for treatment, its type and frequency, and any past or future potential side-effects it might have. So, it might be that treatment would in some cases be the principal long-term consequence of psychiatric injury. Thus a patient with a depressive illness might be symptomatically well provided that he or she regularly underwent a course of electroconvulsive therapy, which caused memory loss; or the patient might be free of the symptoms of a depressive illness but subject to symptoms and disabilities which were side effects of medication used to relieve symptoms of the psychiatric condition.
44.It should be borne in mind that determination of ‘serious injury’ for the purposes of s.93(4)(d) is governed by the language of s.93(17). Provided that the boundaries of that framework are not transgressed, the content of ‘serious injury’ in a particular instance is to be decided by a court. Its task is different to that which confronts TAC under ss.46A, 47(7) or 47(7A) of the Act, where a determination of ‘degree of impairment of a person’ must be made. By reason of the definition of ‘degree’ in 3(1) of the Act, and by reason of Regulations made pursuant to the Act, TAC must there apply a text entitled ‘Guides to the Evaluation of Permanent Impairment’ (2nd Ed.), issued by the American medical Association. Even if it was the case that the US text takes no account of need for or effects of treatment in assessing impairment of a person resulting from a mental disorder, that would not oblige a similar approach by a court in the context of deciding, for the purposes of s.93(17)(c), whether a plaintiff had suffered a 'serious injury'.”
34 The authority of this decision is problematic. It seems to have been disapproved by the Court of Appeal, albeit on another point, in Mobilio v Balliotis [1998] 3 VR 833 at 846 in the Judgment of Brooking JA. It is a Judgment of a Full Court, albeit one consisting of two Judges only. More pertinently, however, the passage quoted does not, as it seems to me, support the submission made. What I take their Honours Ashley and Hedigan JJ to be saying is not that the question of serious injury should be determined independently of medication, but rather that, where medication or other treatment have side effects, the seriousness of the injury must be assessed in light of the side effects. All medications and treatments have side effects of one type or another but no particular side effects appear to have been relied on here, hence I believe this element of the plaintiff’s case should be put to one side.
Conclusions
35 The evidence showed that Ms Porter was subject to a significant mental disorder prior to the transport accident. Mr Ruskin, on behalf of the Commission, carried out a searching cross-examination of the plaintiff. This cross-examination traversed a number of significant and much less significant issues as to her psychological state prior to the accident.
36 The medical evidence establishes as previously observed, that she had been diagnosed as suffering from depression prior to the accident. It further establishes that she suffered, albeit without having been diagnosed, the disorder popularly known as ADHD referred to above.
37 Mr Ruskin took Ms Porter to a number of matters emerging from various medical histories, including experimentation in teenage years with ecstasy and to some perhaps incipient eating disorders associated with body image problems. It would be wrong to make too much of these matters. Experimentation with drugs is regrettably all too common amongst teenagers these days. It would be wrong to regard a young person indulging in this practice as for this reason alone, subject to a mental disorder. It is common, or an almost universal experience, for persons of all ages to be dissatisfied with their body – too fat, too thin, not tall enough, wrong shape etc. These dissatisfactions seem to be felt most keenly in teenage years though they afflict us at all ages. Again it would be wrong to treat these matters as indicative in themselves of a medical disorder.
38 The ADHD however, is a most significant disorder. It was explained at length and in detail by Dr Mulroney as a genetic condition which “progresses through life”. He explained this meant that, far from growing out of it, a patient left untreated will tend to become subject to what he described as co-morbidities, principally depression or other mood disorders and substance abuse.
39 Mr Ruskin’s cross-examination was perhaps on stronger ground when he took Ms Porter in detail to the stressors which operated in her life, which included the break-up of her marriage with Mr Rancie and also a short-lived second marriage which she realised was a mistake almost from the start, and at least one other abortive relationship. These emotional upheavals were overlaid by the stressors that she necessarily suffered as a single mother. All of these things were in play independent of the transport accident. Clearly, they were operative in the onset of the depression for which she sought treatment a few days before the transport accident on Christmas Eve 2007.
40 A consideration of just how much worse the transport accident made Ms Porter’s psychological condition invites consideration of the “counter-factual” - that is, what would her situation have been had this transport accident not occurred. Had Mr Rancie lived, she would have had a continuing relationship with him because she shared parenthood of Tyler with him. They had a very fraught relationship. She told me that she suffered greatly from the knowledge that her love could not overcome the problems which were ravaging his life. I took her to mean that despite all of the traumas associated with loving a person emotionally afflicted as Mr Rancie was, her love transcended all this and it was only concern for the welfare of her son that led her to divorce. It could be that, had Mr Rancie lived, the strength of Ms Porter’s feelings for him and the severity of his problems would have perpetuated what might have proved an exquisite agony for Ms Porter’s inherently vulnerable personality.
41 Ms Porter described her life, at least in the immediate aftermath of Mr Rancie’s death and for some time thereafter, as “a blur”. Whilst she had had some brushes with the law relative to speeding fines before his death, they became a flood and she was threatened with imprisonment when tens of thousands of dollars of speeding fines, which had not come to her attention because of repeated changes of residence after Mr Rancie’s death, stood unpaid. These issues have now been resolved with the assistance of reports and recommendations made to a Magistrate by Dr Mulroney. They do demonstrate, however, the intensity of the effect which Mr Rancie’s death has had on Ms Porter.
42 Nevertheless, the differences in psychiatric diagnosis amongst the various experts is telling. Dr Serry, who, it will be recalled, examined Ms Porter for medico-legal purposes, found a chronic adjustment disorder.
43 Dr Serry’s diagnosis of a chronic adjustment disorder is problematic in this connection in so far as it seems to be attributed to the death of Mr Rancie. This was a once and for all event, not one of the continuing type which might be appropriate to lead to a diagnosis of a chronic adjustment disorder. More pertinently, Dr Serry was abstaining from making the more serious diagnosis of Post-Traumatic Stress Disorder. In this respect he is supported by Dr Nigel Strauss who examined and reported for the Commission. If these practitioners are correct in their diagnoses, it is difficult to regard the disorder diagnosed as being “severe” as required by the relevant test for serious injury.
44 This conservatism in diagnosis is consistent with Dr Hardy’s view that there is an excellent prognosis. Dr Jager anticipated an early recovery from PTSD. Mr Lewis and Mr Hill asked me to discount this because Dr Jager mistook the severity of Ms Porter’s Codeine addiction, but, as I explain later, it seems that this will be successfully treated by Dr Mulroney. Dr Jager’s optimism therefore stands.
45 Again, without going through the detail of the evidence, Ms Porter has been able to continue in regular employment. This is in accordance with the views expressed by Dr Hardy. The Commission put in material obtained from a modelling agency website including a recent (2010) photo of Ms Porter. Ms Porter said, and I do not understand there to be any evidence to the contrary, that modelling at this stage is little more than a hobby for her and she has not obtained any real paying work in recent years. Nevertheless, her capacity to pursue the role of single mother, working an ordinary day job and maintaining at least a hobbyist interest in modelling, is supportive of the more cautious diagnoses of Dr Serry, Dr Strauss and Dr Hardy. Even Dr Jager’s diagnosis of the more severe problem of Post Traumatic Stress Disorder is tempered by a favourable prognosis pointing away from a finding of severe disorder.
46 Ms Porter’s depression predates the transport accident. As a whole, it was not caused by it. I accept that the transport accident has worsened it.
47 As to issues of substance abuse, on Ms Porter’s evidence, she was able with some support, to resolve her alcohol problem. Dr Mulroney gave a favourable prognosis for resolution of her codeine addiction problem. He offered the very significant caveat that the success of the treatment regime which he had laid down was dependent on compliance. This must be so in any case of addiction. Nevertheless, there was nothing in his evidence to suggest that he believed that compliance was beyond Ms Porter’s capacity. To put it another way, success in resolving the codeine abuse issue is in her own hands in circumstances where she has previously displayed a capacity to resolve addiction issues with appropriate clinical support. Ms Porter’s ability to maintain a career as a single mother, even through the vicissitudes she has suffered, indicates that, as the poet puts it, “Though much is taken much abides”[1] – see Stijepic v One Force Group Pty Ltd [2009] VSCA 181 [44].
[1] Tennyson, Ulysses
48 In summary, it is debatable whether this lady exhibits a mental disorder of the severity necessary to meet the requirements of paragraph (c) of the definition of “serious injury” in s.93 of the Transport Accident Act 1986. The evidence is clear, however, that a significant portion of her present difficulties pre-existed and are unconnected with the transport accident. I am satisfied that what remains and what is accident-related is not of the necessary severity to meet the requirements of the definition.
49 There is the further consideration that the various, relatively favourable prognoses mentioned above militate against the relevant mental or behavioural disorder being “long-term” as required by paragraph (c) of the definition of “serious injury”. No doubt, the pre-existing and underlying disorders are long-term, but, on the evidence before me, the aggravation caused by the transport accident is not.
50 The application is dismissed.
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