Ramos v St John of God Hospital
[2013] VCC 3
•25 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01546
| FERNANDA ANJOS RAMOS | Plaintiff |
| v | |
| ST JOHN OF GOD HOSPITAL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17, 18 and 19 November 2012 | |
DATE OF JUDGMENT: | 25 February 2013 | |
CASE MAY BE CITED AS: | Ramos v St John of God Hospital & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 3 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – injury to the Left knee – psychiatric injury – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Watts v Rake (1960) 108 CLR 158; Hunter v Transport Accident Commission [2005] VSCA 1.
JUDGMENT – Leave granted to bring proceedings for pain and suffering and loss of earning capacity with respect to severe mental disorder.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore Lacy QC and Ms N Wolski | Arnold Thomas & Becker Pty Ltd |
| For the Defendants | Ms K Galpin | Wisewould Mahony |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant on 17 October 2002 (“the first injury”) and or 9 September 2003 (“the second injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application, first, pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left knee.
5 The plaintiff also relies upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
6 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] 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”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
7 Winneke P, in Mobilio, 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 Transport Accident 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.)
8 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. Her treating general practitioner, Dr Fitzgerald, gave viva voce evidence and was cross-examined, as was her treating psychiatrist, Dr Cyril Been, and her treating orthopaedic surgeon, Mr Robert Wood. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
9 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
10 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
11 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
12 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
13 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
18 The defendants accepted liability for injury to the left knee suffered by the plaintiff on 17 October 2002 and 9 September 2003 but contends that there has been physical recovery from both injuries, or alternatively, neither injury meets the requirements of sub-paragraphs (a) or (c) of the definition of “serious injury” referred to above.
19 In addition, it is not possible to aggregate injuries. Each injury must be assessed as to its consequences to determine whether it is “serious”.[3]
[3]Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511 at paragraph [26]
20 Further, in the circumstances of this case, it is incumbent upon the plaintiff to prove that she suffered a compensable physical injury to her left knee, on either of the two dates referred to, and further, that each physical injury either satisfies the requirements of paragraph (a) at the time of hearing or that each compensable physical injury was the cause of a Chronic Pain Syndrome or Adjustment Disorder or a severe depression which satisfies the requirements of paragraph (c): (See Veljanovska v Socobell Oem Pty Ltd[4]).
[4][2005] VSCA 227 at paragraph [11]
21 It should also be recorded that the defendants have made a strong submission that the plaintiff has not discharged the onus of proof with respect to any of the ingredients she needs to prove in order to obtain the necessary leave, based on what is said to be an exaggerated presentation to the doctors and to the Court such that the Court, it is said, cannot determine the nature and extent of genuine consequences, at least to the extent of proving that they are “serious”.
Compensable physical injury
22 The plaintiff, now aged fifty-two, commenced employment with the defendant in about 1998 as a cleaner. She regularly worked 35 hours per week. One of her tasks was to clean out a patient’s bedroom to get ready for a new patient. She would be allocated about seven or eight rooms.
23 On 17 October 2002, she sustained an injury to her left knee when she felt a click and stabbing pain in that knee whilst moving a bed. She attended her general practitioner, Dr Fitzgerald, the next day, was placed off work for a short time[5] and was prescribed anti-inflammatories and rest.[6] On examination, Dr Fitzgerald had found a small effusion with tenderness over the medial aspect of the knee, and decreased flexion.[7]
[5]Exhibit A
[6]Exhibit C, page 31
[7]Exhibit C, page 31
24 Thereafter, the plaintiff returned to Dr Fitzgerald on 25 October 2002 with ongoing symptoms and some posterior knee pain. She was referred to orthopaedic surgeon, Mr Rodney Brink, who first saw her on 27 March 2003. On the first occasion he found some mild synovitis of the left knee and diagnosed a possible medial meniscal tear. He later injected her left knee with cortisone on 29 April 2003 with a provisional diagnosis of knee strain and secondary synovitis.[8]
[8]Exhibit C, page 46
25 Then, on or about 9 September 2003, the plaintiff again injured her left knee at work when attempting to move a heavy wooden locker beside a bed. As a result, her knee was painful and swollen.[9]
[9]Exhibit A, paragraph 22
26 Between this date and November 2004, the plaintiff made a number of attempts to return to work on light duties. She considered herself unable to work beyond November 2004.[10]
[10]Exhibit A, paragraph 25
27 When seen by Mr Brink on 13 January 2004, the plaintiff gave a history that the incident in September 2003 produced a sharp exacerbation of anteromedial left knee pain which continued despite ingestion of Brufen and application of topical Voltaren cream, alternating with Mobic, anti-inflammatory medication and physiotherapy twice weekly. The plaintiff also gave a history that the injection given in April 2003 did not provide any benefit “at any stage”. Apart from some mild patellofemoral crepitus on passive movement, the examination appeared to be unremarkable.[11]
[11]Exhibit C, page 46
28 In February 1984, the treating general practitioner, Mr Fitzgerald, referred the plaintiff to a psychologist, Ms Mary Dimovski, because she had “difficulty managing her depressed mood and experiencing problems with concentration, sleep and low energy levels”.[12] Originally psychological therapy was conducted by psychologist, Ms Isobel Attwood, between 18 March 2004 and 29 March 2005. Thereafter, the plaintiff was treated by Ms Dimovski, and as at 21 August 2006, she had undergone twenty seven individual sessions funded by WorkCover due to the acceptance of the claim for the October 2002, alternatively the September 2003 injury. I will return to this aspect later.
[12]Exhibit C, page 53
29 The plaintiff was then referred to orthopaedic surgeon, Mr Robert Wood, in July of 2007. He took a history of the October 2002 injury and the re-injury in 2003. He found the plaintiff had pain which was fairly generalised around the knee but with some focus, at least in the front of the knee around the patella. She had tried physiotherapy, which never really helped, and hydrotherapy, which had helped her but not significantly. She had tried one injection, which improved things a little, but the effect was not long-lasting.[13] Examination included a finding of “a lot of wasting of the quadriceps”. Also, there was exquisite tenderness at the patellofemoral joint.[14] Mr Wood also found –
“Motion of the patella was assessed and patellar tracking was noted to be markedly affected. This is exactly what one would expect in a knee that has wasted quadriceps muscles.”[15]
[13]Exhibit C, page 111L
[14]Exhibit C, page 111M
[15]Exhibit C, page 111M
30 Mr Wood’s diagnosis was one of “significant patellofemoral dysfunction with wasting of the vastus medialis in particular”. He injected the knee with cortisone and local anaesthetic and suggested she return to physiotherapy.
31 At his next consultation on 2 July 2008, Mr Wood recorded that the plaintiff could not cope with the physiotherapy and had had further injections but without improvement. He found a significant painful click in the kneecap with lateral translation and he recommended an arthroscopy.[16]
[16]Exhibit C, page 111M
32 Mr Wood performed a left knee debridement and lateral release by arthroscopy on 11 August 2008. At surgery he found that the patella was sitting in a subluxed position in a lateral direction and was in contact with the femur in full extension “which is in itself an abnormality”.[17]
[17]Exhibit C, page 111M
33 Thereafter, Mr Wood has reviewed the plaintiff on a regular basis concerning the left knee, later her back and later still the right knee. In October 2009, he felt that she was a “little sensitive with these knees” even though he had no doubt she had a genuine physical problem. Significantly, he noted there was a –
“… high emotional element to this injury … and [he was] not keen to do anything else of an interventional nature, particularly with respect to the left knee”.[18]
[18]Exhibit C, page 111O
34 Mr Wood further stated:
“It is always difficult in people who have a strong emotional connection with their injury to discern the emotions from the truly physical, which are often extremely strongly related.”[19]
[19]Exhibit C, page 111O
35 By the time of review on 15 March 2012, Mr Wood recorded that the plaintiff was “not doing well”. Her MRI showed mild bilateral cartilage loss, with some focal deeper lesions particularly patellar and medial. He found the plaintiff “was troubled physically and psychiatrically, [he thought] mainly psychiatrically and [he thought] it would do better having her stressors removed rather than having them extended”.[20]
[20]Exhibit C, page 111S
36 By the time of review on 10 May 2012, Mr Wood considered the plaintiff to be “an emotional mess”. He stated that he was glad she was under the care of psychologists and psychiatrists as he was sure she had suicidal ideation and she hinted at that on that day.[21]
[21]Exhibit C, page 111S
37 At his ultimate review on 5 September 2012, Mr Wood recorded a request for an arthroscopy on the left knee had been rejected.[22] Relevantly, he considered that the sequence of events was as follows:
[22]Exhibit C, page 111T
“1In the early 2000s Ms Ramos injured her left knee with significant anterior knee pain following.
2The changes at the start were quite subtle and didn’t show up on forms of scanning but over the ensuing decade she developed demonstrable patellofemoral and medial compartment disease.
3The postulation of the main injury to the left knee was patellofemoral at the time of first review.
4Currently the knee had mild degeneration in the entire femoral and medial sides and mechanical symptoms suggesting some potential loose elements around the edges of the lesions which would be minimal for arthroscopy.
5Consequently patellofemoral issues and medial compartment issues on that side can probably be reasonably linked to her original left knee problem and the ensuing altered gait for that period of time.
6Her current need for arthroscopy would stem directly from the symptoms related to those degenerative conditions [which he believed could well be linked back to the original index injury in the early 2000s].
7In view of the very significant patellofemoral pain one would expect that if the knee continued to be degenerated at the current rate then in a few years she will need a knee replacement most likely for the patellofemoral pain in large part. [Consequently he would link the need for replacement to that index injury and the subsequent degeneration of the chondral surfaces].
8The chondral surfaces showed as being healthy in earlier scans but damaged in later scanning which would indicate that there was potentially milder damage that did not show up in the earlier stages [and he had no doubt that it had been exacerbated by the maltracking caused by current quadriceps wasting secondary to altered gait and then subsequently causing that altered gait].
9[In short, he considered there had been a substantial passage of time around one decade, since the original onset of symptoms and he thought the scans are finally giving a more full picture of the damage that was triggered by that index injury].
10[Finally, he considered that the original incident with respect to both left and some time later right knee pain and degeneration had stemmed at least to a significant degree from the original index injury.”[23]
[23]Exhibit C, page ______ [?]
38 Mr Wood fairly concedes a matter which is often raised in proceedings of this type to the effect –
“… obviously degeneration is a multifactorial problem, and we can’t say exactly where she would be if she had not injured her knee in 2002 and again in 2003, and from the consequent altered gait pattern.”[24]
[24]Exhibit C, page 111W
39 However, in the absence of any convincing evidence to the contrary, I accept Mr Wood’s opinion that the left knee, at least, has stemmed “at least to a significant degree from that original index injury”.[25]
[25]Exhibit C, page 111W, and see Watts v Rake (1960) 108 CLR 158
40 The defendants contend that even if causation is established in the way proposed by Mr Wood the findings and consequences are unreliable because the plaintiff has either deliberately exaggerated her condition or that the symptoms are so clouded by a psychiatric reaction that one cannot be certain as to the actual physical consequences from either of the physical injuries. I consider there is some force in this submission. Mr Wood himself has thought that the plaintiff’s presentation, as at March 2012, was “mainly psychiatric” as referred to above.[26]
[26]Exhibit C, page 111S
41 All the specialist doctors for both the plaintiff and the defendants, with the exception of Mr Huffam, accept that the plaintiff at all material times has had wasting of the left quadriceps which is consistent with an injury as pleaded. I am disposed to accept this consistent finding and to accept the diagnosis and work relationship postulated by Mr Wood. However, I agree with the defendants’ contention that proof of serious injury based on physical consequences is another thing altogether. The defendants also contend, not unreasonably, that if the plaintiff has been found to be consistently exaggerating her condition then any of the premises upon which expert opinions have been based are sufficiently called into question such that the plaintiff may have failed to discharge the onus of proof. In particular the defendants rely on surveillance film depicting the plaintiff, particularly on a weekend in Warrnambool in January 2010, as showing the plaintiff to be an unreliable if not deceptive historian. I will return to this aspect later.
Compensable physical injury causing severe mental or permanent severe behavioural disturbance or disorder
42 It would seem clear on the evidence that the plaintiff has developed psychiatric injury causally related to the physical left knee injury: Mr Wood;[27] Mr Huffam;[28] and Dr Cyril Been.[29]
[27]at Transcript 304-305
[28]at Plaintiff’s Court Book, page 93
[29]Exhibit C, Plaintiff’s Court Book, pages 66, 74
43 The question remains, however, whether the plaintiff’s presentation at material times is consequential upon genuine psychiatric injury or, alternatively, consequential upon deliberate exaggeration for ulterior gain. If the Court is unsure as to which category the plaintiff falls into, the defendants makes a valid point that the onus of proof has not been discharged.
44 The pathology of the left knee injury, and its work relationship, has been expressed by treating orthopaedic surgeon, Mr Wood, in a way that I accept as having been proved. It is therefore not surprising, nor unusual, that a plaintiff can develop a Major Depressive Disorder which is causally related to such physical injury with consequences as expressed by the treating psychiatrist, Dr Been.
45 The plaintiff has undergone at least five admissions to the Geelong Clinic for psychiatric inpatient treatment. The periods of admission are generally for either three or four weeks. In the process of this treatment she has undergone at least twenty transcranial magnetic stimulation treatments. Dr Been considers that she remains depressed and anxious on a daily basis and she is tearful and emotional on an ongoing basis. She has low energy and low motivation and does not get pleasure out of any activities. She does not even enjoy being with her grandchild, who is now almost one year old. Dr Been[?] states she struggles with memory and concentration and struggles to attend to her normal daily activities. Her sleep pattern and her appetite remain disrupted. She has become isolative and withdrawn and does not socialise at all. She has intermittent suicidal thoughts. She is irritable with her husband and younger son and there are ongoing family difficulties due to this irritability. He does not believe that the plaintiff has any capacity for employment either now or into the future. He considers she needs ongoing psychiatric and psychological treatment.[30]
[30]Plaintiff’s Court Book, pages 77-78
46 At various relevant times the defendants have had the plaintiff examined by a number of psychiatrists. It is fair to say their opinions vary with respect to diagnosis, work relationship and severity of symptoms. However, the plaintiff receives corroboration from the defendants’ psychiatrists as follows:
(a) Dr Nigel Strauss, 27 October 2011:[31]
[31]Exhibit 2, page 85
“I noted significant anxiety and depression and the presence of an Adjustment Disorder. I stated that she needed a good deal of psychiatric and psychological treatment and she was a suicidal risk. I felt that probably her perception of circumstances at work some years ago had been fault due to a probable Personality Disorder. I stated however that if she had work-related physical problems then some of her psychiatric presentation may have been work related. I gave her a very poor prognosis and I stated that she was totally and permanently incapacitated. … She was last in a psychiatric hospital this year for three weeks due to an overdose and suicidal ideation.”
(b) Dr Stephen Stern, 22 December 2004:[32]
[32]Exhibit 2, page 98
“Mental State Examination
She was very anxious and depressed. She was tearful and she sat slumped in the chair. She tried to be co-operative. …
Opinion
1This woman is suffering from a Major Depressive Disorder and Panic Disorder.
2This is related to the work injuries to her left knee in October 2002 and September 2003 and to her low back in 2003. Employment is a significant contributing factor. She also feels that she was victimised by her supervisors after her injuries occurred. There is a past history of work stress in 2001. She needs continuing psychiatric and psychological treatment.
3She is currently psychiatrically incapacitated for all work including the return to work plan of 12 March 2004.”
(c) Dr Alan Jager, 1 August 2007:[33]
[33]Exhibit 2, pages 102-104
“Her mood is currently bad and fluctuates. She has no enjoyment in life. She has difficulty getting to sleep and staying asleep and has nightmares. She has a knot in her stomach. Her appetite is reduced and she has lost 6 kilograms.
…
She twisted her knee at work four years ago and has ongoing pain in the left knee and lower back. In the months after the injury she became depressed and has been treated by a psychologist and psychiatrist with little, if any, improvement. She has tried several antidepressant medications and is currently in the process of changing medications. She was admitted to hospital for six weeks in 2006 with severe depression, and still has fluctuating moderately severe depression, with frequent suicidal thoughts, no enjoyment in life and impaired sleep, appetite, libido, energy and concentration.
…
She has a moderately severe Major Depressive Disorder.
…
Contributing factors to the claimant’s current condition include the workplace injury to the knee and disturbed behaviour by her teenage son.
…
I did not identify any pre-existing conditions altering the course of this injury, but note the claimant’s predisposition towards the development of a depressive illness by means of a prior history of such an illness in 2001.
…
The current condition has an ongoing relation to employment if her left knee injury is still related to employment.
…
The claimant is not at work and could not work if treatment ceased.
…
Dr Breen’s request for a further period of inpatient stay in Geelong Clinic is appropriate. I recommend that the claimant be treated with electroconvulsive therapy during that admission.”
(d) Professor Michael Berk, psychiatric assessment, 28 February 2006:[34]
[34]Exhibit 7, pages 156-157
“Onset of depression and anxiety around March 2004, in the context of work-related injury sustained two years prior with subsequent chronic pain, perceived unjust treatment by employers, bullying, targeting at work and cessation of wage payments in March 04.
…
Two-year history of unremitting depression associated with high levels of anxiety and ruminating thoughts in context of protracted WorkCover/work conditions … Also background of an obsessional personality style and a previous (episode?) of decompensation under work-related stress.
Diagnosis: Major Depressive Disorder.”
(e) Dr Gregory White, 11 December 2009:[35]
[35]Exhibit 6, page 153-154
“Recurrent Major Depression characterised by recurrent and now chronic depressive symptoms since 1998 at least.
…
The reported symptoms are consistent with Major Depression.
…
Was Mrs Ramos’ presentation consistent with her alleged level of disability?
Yes, but at the same time consistent with concurrent contributing personality traits and Pain Disorder.
…
(Not fit for any duties).
(f) Dr William Glazer also examined the plaintiff on behalf of the defendants on 19 February 2007 and 11 May 2007. His ultimate assessment is to the effect:[36]
“In the meantime, while I am prepared to accept that this lady may be suffering from some type of psychiatric disorder, however it is labelled, I remain very sceptical that she is as incapacitated as she claims to be.
…
A clearer idea with respect to her ultimate prognosis and work capacity could be obtained by a psychiatric review of her in six months time, particularly after some further non clinical investigations have been made with respect to her claimed restrictions and incapacity.”
[36]Exhibit 6, pages 148-149
47 The defendants tendered in evidence substantial video surveillance of the plaintiff between 1 June 2004 and 22 February 2012. In particular the defendants have relied on film taken of the plaintiff on 8 January and 9 January 2010 whilst on holiday in Warrnambool, Victoria. The films were shown to the plaintiff and her three treating practitioners, Dr Fitzgerald, Mr Wood and Dr Been. The defendants made a forensic decision not to show the surveillance to its own medico-legal examiners, preferring to use the film in cross-examination of the plaintiff’s witnesses. It follows that the plaintiff’s treating doctors were thus in the best position to evaluate the strength or otherwise of the surveillance evidence. In an extensive and well argued written submission, the defendants attack the credit of the plaintiff to the following effect:
(a) The histories given to the various doctors are either deliberately misleading or, alternatively, unreliable such that the opinions they express have little or no weight;
(b) In either of the above scenarios the subsequent result is that the plaintiff has failed to discharge the onus of proof.
48 I will not repeat all of the relevant submissions thus made but highlight the following:
(a) The objective observations shown on film are at odds with the plaintiff’s claims that she is always in terrible pain, as recorded by Dr Fitzgerald;
(b) The plaintiff frequently stands and sits for periods substantially in excess of her claimed limits, and demonstrates no apparent pain, disability or need to alter her posture;
(c) The objective evidence is contemporaneously at odds with histories given to doctors shortly before or after a relevant period of surveillance;
(d) The plaintiff, whilst on holiday in Warrnambool on a particular period in excess of 12 hours, demonstrated “vigour and interest”. I do not agree that the plaintiff showed “vigour” but certainly appeared to demonstrate a normal walking pattern and interest in “tourist” attractions whilst on holiday;
(e) The film shown varied when the plaintiff was going to see a WorkCover doctor;
(f) The plaintiff’s demeanour in Court was consistent with conscious exaggeration of her physical and psychiatric symptoms. For example, it is submitted that on every occasion she moved in and out of the witness box she did so stiffly, with apparent difficulty walking even a few steps, which is to be contrasted with the film;
(g) The treating general practitioner, Dr Fitzgerald, could think of no logical physical explanation other than that the plaintiff was feigning injury;
(h) The plaintiff had asked Dr Fitzgerald not to disclose when she was first prescribed anti-depressant medication, which is, it is submitted, demonstrates a conscious attempt to attribute her psychiatric problems to her knee injury rather than to a pre-existing complaint.
49 The submissions with respect to credit were, in my view, reasonably made.
50 In the end, when considering whether the plaintiff has discharged the onus of proof, I consider that the following factors are important in my deliberation:
(a) The surveillance film was only shown to the plaintiff’s treating doctors;
(b) Both the treating surgeon, Mr Wood, and the treating psychiatrist, Dr Been, were not moved to alter their opinions as to the work relationship of the physical injury, the causal relationship between the physical injury and the psychiatric injury, the severity of the psychiatric injury and the inability to work.
51 In particular, the treating psychiatrist, Dr Been, was subjected to extensive cross-examination, particularly with reference to the surveillance. Relevant examples are as follows:
Example A:
MS GALPIN:
“Q:Doctor, I’ll just ask, while she’s sitting in this café, there’s nothing unusual about her presentation there while she’s sitting with her husband waiting for her food, is there?---
A:No, but they don’t look particularly happy. You know, their on holiday, they’re spending time together, I haven’t seen a smile or a laugh or a joke, it’s just the only comment I can make.”[37]
[37]Transcript 99, Lines 23-30
Example B:
DR BEEN:
“I wouldn’t see someone going away with her husband for a few days as an indication that they’re not suffering from depression. In fact, I would see it as a positive that the person’s actually trying to follow through with suggestions to normalise their life. The fact that she didn’t tell me, I don’t know that that’s significant. I don’t necessarily have to know every detail in every person’s life.”[38]
[38]Transcript 100, Lines 6-13
Example C:
MS GALPIN:
“Q:When you look at it she’s a lady who’s effectively fifty years old when that’s happening. She’s there holding hands with her husband, walking along, kissing him at times, he’s kissing her. They’re behaving in, to all observation, what’s fairly normal behaviour for a couple of that age?---
A:My observation would have been a little bit different. She certainly kissed him once, but the other time he kissed her. She didn’t seem that responsive to it. I actually didn’t see her smile once, I didn’t see her laugh. I just saw a woman there going out doing things. …”[39]
[39]Transcript 101, Lines 19-29
Example D:
When asked about the contrast of the film shown on 10 January 2010 with his clinical notes of 13 January 2010, Dr Been’s record showed:
“Well, she said that she didn’t enjoy Christmas or New Year. She said that her mood was still depressed and that she was still struggling to cope and that she was still depressed and anxious and she was not sleeping well and that she was still considering the recommendation of the treatment, the TMS treatment.”[40]
[40]Transcript 103, Lines 4-9
Example E:
When asked to comment on the apparent contrast, Dr Been replied:
“ But perhaps I can qualify. When a person’s mood is down for a period, they see everything is down and negative and they perhaps don’t always see the good day that they did have because when they’re down everything is seen in a new light, as more negative and more bleak and more hopeless really.”[41]
[41]Transcript 104, Lines 5-10
Example F:
When asked whether it was possible that the plaintiff was not really as depressed as she alleged and that that may be a reason why she was not responding to treatment, Dr Been replied:
“It’s possible but they’d have to be very good actor and they’d have to be very aware of the symptoms and signs of depression.”[42]
[42]Transcript 105, Lines 13-16
Example G:
When it was suggested that the presentation on film showed the real capability on a daily basis if the plaintiff so chose, Dr Been replied:
“A: It’s possible but I don’t … that’s not my opinion.
Q:And that’s not your opinion because she tells you she’s not like that?---
A:And from what I observe. And I’d also question why somebody would put themselves through what she has been put through – four or five hospital admissions, invasive treatments, repeated medical examinations. Through numerous psychiatrists.”[43]
[43]Transcript 105, Line 31 – Transcript 106, Line 7
Example H:
When it was put to Dr Been that the plaintiff may be motivated by a secondary gain in submitting to treatment, he replied:
“Usually they’re not too keen on hospital admissions. They’re usually not too keen on invasive treatment. … Mrs Ramos has needed to go for five hospital admissions, she’s had two courses of this magnetic stimulation which I have never had myself. But it is reasonably unpleasant. She’s taken numerous anti-depressants which have caused quite considerable weight gain which we’ve seen. She has almost intractable constipation from the medication she’s been prescribed. Some of the medications I have prescribed have necessitated repeated blood tests.”[44]
[44]Transcript 108, Lines 6-23
In re-examination, when asked if the clinical picture had included access to the film as shown, would he still prescribed lithium carbonate, Dr Been replied “Yes”.[45]
[45]Transcript 111, Lines 27-30
Further, if he had seen the video, he would have still proceeded with the relevant period of hospitalisation in March of 2010.[46]
[46]Transcript 112, Lines 6-10
Example I:
Each hospital admission would have been caused or precipitated by a deterioration in her mental state, the worsening of her depressive symptoms and worsening of her ability to care for herself and often accompanied by increased suicidal ideation.[47]
[47]Transcript 112, Lines 18-25
Example J:
There had been no recovery in the depressive condition since 2004.[48]
[48]Transcript 112, Lines 26-29
Example K:
Further inpatient treatment in the future was likely.[49]
Example L:
Future treatment included the need for ongoing psychotherapy and medication, together with monitoring of her mental state.[50]
[49]Transcript 114, Line 23
[50]Transcript 114, Lines 24-29
Example M:
Finally, as to the plaintiff’s prognosis:
“I see a very negative outlook for her ever being able to return to work.”[51]
[51]Transcript 115, Lines 14-15
52 It is clear on all of the evidence that such depression as existed from 1998 onwards was nowhere near the severity that subsisted from 2004 onwards such that there was no interference in the plaintiff’s ability to work prior to the “index injury” of October 2002. If in fact the psychiatric impairment is an aggravation of a pre-existing state, the aggravation itself is clearly severe, long term and permanent if the plaintiff’s presentation is to be accepted.
53 In conclusion, I consider that the plaintiff has suffered a mental or behavioural disturbance or disorder which has a serious consequence for her in the form of disablement from work and interference with enjoyment of life and that she has suffered a very significant pecuniary disadvantage as a consequence of that affliction. The aggregate of these considerations leads to the conclusion that the plaintiff has suffered a “severe long term behavioural disturbance or disorder” within the meaning of paragraph (c) within the meaning of the definition of “serious injury” when judged by a comparison with other cases in the range of possible mental or behavioural disturbances.[52]
[52]See Hunter v Transport Accident Commission [2005] VSCA 1, per Nettle JA, at paragraph [44] and s134AB(38)(h) of the Act.
54 Accordingly, leave is granted to the plaintiff to bring proceedings at common law for damages for pain and suffering and loss of earning capacity.
55 For the sake of completeness, I accept the defendants’ submission that the plaintiff has not discharged the onus of proof with respect to her application pursuant to clause (a) of the definition of “serious injury” with respect to the first or the second injury.
56 I will hear the parties as to consequential orders.
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