Rye v Transport Accident Commission
[2021] VCC 1452
•14 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01963
| LORRAINE GEORGINA RYE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 September 2021 | |
DATE OF JUDGMENT: | 14 October 2021 | |
CASE MAY BE CITED AS: | Rye v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1452 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – pain and suffering – permanent severe mental or permanent severe behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986 (Vic), s93(4), s(17)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas (2017) 262 CLR 550; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Noonan v State of Victoria [2013] VSCA 289; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Dordev v Cowan & Ors [2006] VSCA 254; Tame v New South Wales (2002) 211 CLR 317; HG v R (1999) 197 CLR 414; Cavenett v Commonwealth [2007] VSCA 88; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104; Devaney v R [2012] NSWCCA 285; Whisprun Pty Limited v Dixon (2003) 200 ALR 447; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Hunter v Transport Accident Commission [2005] VSCA 1; Transport Accident Commission v Kamel [2011] VSCA 110; Lexa v Transport Accident Commission [2019] VSCA 123; Allouche v Transport Accident Commission [2020] VCC 509
Judgment: Leave granted to the plaintiff to commence proceedings for damages in respect of injuries she suffered because of the transport accident on 7 May 2014 pursuant to s93(4) of the Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Mr J Ruskin QC with Ms S Manova | TAC Legal |
Table of Contents
Introduction
Background
Relevant legal principles
The issues
The evidence
Treating medical evidence
Counselling
Dr Robertson – Hamilton Medical Group (general practitioner)
Kelli Garrison (treating psychologist)
Road trauma support
Independent medical experts
Dr David Weissman (first and second reports)
Associate Professor Doherty
Dr David Weissman (third report)
Are the nature and symptoms of the injury and the consequences subjectively severe to Mrs Rye and is the mental disorder “severe” when judged objectively by comparison with other cases in the range of comparable cases?
Mrs Rye before and post the accident
Pre-existing matters – marital relationship, husband’s personality, bad back
Cross-examination of Mrs Rye
Credit and reliability
Findings
Conclusion
HER HONOUR:
Introduction
1On 7 May 2014, the husband of the plaintiff (Mrs Rye) was cycling near their home in Tarrington about 10 kilometres from Hamilton in Western Victoria. He was struck by a car travelling at high speed on a country road and was knocked from his bicycle. Mr Rye was transferred to the Western District Base Hospital in Hamilton and was subsequently airlifted to Melbourne, where he remained until he was returned home about ten days later. He had sustained multiple very serious physical and psychological injuries including a closed head injury/traumatic brain injury (now with neurocognitive dysfunction and behavioural disturbance), a broken leg, several broken ribs, lacerations to his right elbow, two compressed vertebrae fractures and a peri-anal wound.
2The issue to be determined in this proceeding is whether a Chronic Adjustment Disorder of mild to moderate severity with Depressed and Anxious Mood, which Mrs Rye has developed by reason of her husband’s accident, is a “serious injury” within the meaning of paragraph (c) of the definition in s93(17) of the Transport Accident Act 1986 (“the Act”) – namely, a severe long-term mental or severe long-term behavioural disturbance or disorder – such that Mrs Rye should be granted leave to commence proceedings for damages in respect of injuries she suffered because of the transport accident pursuant to s93(4) of the Act.
3To succeed in this application, Mrs Rye must satisfy the Court, on the balance of probabilities, that the injury she has suffered occurred because of the transport accident and is a “serious injury” within the meaning of s93(17) of the Act. The assessment of whether the injury is “serious” for the purposes of the Act, is assessed at the time the application is heard.
4Having considered the evidence, I have formed the view that Mrs Rye has suffered a Chronic Adjustment Disorder with Depressed and Anxious Mood because of the transport accident. Her injury is permanent, in the sense that it will persist for the foreseeable future. Mrs Rye was a credible and reliable witness. I further find the nature and symptoms of the injury and the consequences of the injury are subjectively “severe” for her, and when assessed objectively, the mental or behavioural disturbance or disorder is “severe” when compared with the range or “spectrum” of comparable cases. Accordingly, I grant Mrs Rye’s application for leave to commence proceedings for damages in respect of injuries she suffered because of the transport accident pursuant to s93(4) of the Act.
Background
5Mrs Rye was born in December 1948 and is currently aged seventy-two years.
6Until age four, she grew up on a dairy farm in Tahara, a small town west of Hamilton. She then lived in Heywood, before moving to Portland and then to Melbourne. She completed school up to Form 2 and then worked in a variety of retail and hospitality jobs.
7Mr and Mrs Rye were married in March 1969 and have now been married for over fifty-two years. Initially, they built a home together in Menzies Creek. Later, they moved to Chewton, close to Castlemaine, where Mrs Rye worked in retail, as a pharmacy assistant and operated food services businesses. She successfully operated a café and then a delicatessen business for several years. They lived on a small farm and had sheep.
8In about 2005, Mr and Mrs Rye moved to the Hamilton region. They purchased a 90-acre farm because they wanted a different lifestyle and were interested in farming work. Their current farm has 160-180 sheep and lucerne, hay and barley crops.
9Mrs Rye’s medical history includes some longstanding, but minimal and well-managed, lower back pain radiating into her leg, as well as osteoporosis. Before her husband’s accident, Mrs Rye had been prescribed pain medications to treat her back pain but found that they were not pleasant to take and caused her confusion and general fatigue. Mrs Rye learned to cope with the pain and her back condition was not impairing her functional ability before her husband’s transport accident.
10Before the accident, there was also a history of some relationship difficulties between Mr and Mrs Rye from around 2011 and continuing up to the date of the accident.
Relevant legal principles
11The definition of “serious injury” as set out in s93(17)(c) of the Act is, relevantly, as follows:
“‘Serious injury’ means—
(a) …
…
(c)severe long-term, mental, or severe long-term behavioural disturbance or disorder; or
… .”
12The question of whether an injury is “serious” for the purpose of s93(17) is to be answered according to the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak.[1]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[2]
(emphasis added)
[1] [1992] 2 VR 129 (“Poljak”)
[2] Poljak (ibid) at 140 (per Crockett and Southwell JJ)
13As Crockett and Southwell JJ identified in Poljak, many disturbances are considerable, in the sense that they are “important or substantial” without being “very” considerable.
14The word “severe” is not defined in the Act. What might constitute a severe mental disorder, or indeed how an analysis of whether a mental disorder is severe, are matters not canvassed by the provisions of the statute. Nevertheless, it was held by a five-member bench of the Court of Appeal in Mobilio v Balliotis[3] that the word “severe” is of stronger force than the word “serious”.
[3] [1998] 3 VR 833 at 846 (per Brooking J)
15In Transport Accident Commission v Katanas,[4] the High Court referred to Poljak and identified the task required for application of the narrative test as follows:
“6. … The application of the narrative test entails a two-stage process:
(1)an assessment of whether the nature and symptoms of the injury and the consequences of the injury are, subjectively for the applicant, ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’; and
(2)a determination of whether the injury as thus assessed is objectively ‘serious’ or, in the case of mental or behavioural disturbance or disorder, ‘severe’ when compared with the range or ‘spectrum’ of comparable cases.”[5]
[4] (2017) 262 CLR 550 (“Katanas”)
[5]Katanis (ibid) at 555, paragraph [6]. See also for example Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [7] per Ashley JA (Nettle and Dodds-Streeton JJA agreeing at paragraph [1] and [31]); Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 191 at paragraph [42] per Ashley JA and Beach AJA; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [89] per Tate JA (Ashley JA and Hargrave AJA agreeing at paragraphs [1] and [115]
16Assessment of the severity of an injury will ordinarily be informed by the extent of its symptoms and consequences, but as the High Court observed in Katanas, there is not always a “bright line” between injury, consequences and symptoms. What might be characterised as a symptom may, at the same time, be relevant as a consequence.[6]
[6] Katanis (ibid) at 546, paragraph [29]
17Mental disorders will vary in their nature and in their consequences. There are many ways in which the question of severity might be approached, each of them being incomplete in itself.[7] A diagnosis of a particular condition does not result in a conclusion that the condition is permanent or that its consequences are severe.[8] Similarly, a psychiatric disorder may have severe consequences even though a sufferer has had limited treatment, just as extensive treatment will not necessarily point in the direction of a disorder being more severe.[9] The question is whether overall, determined by all the evidence and not just medical opinions,[10] a plaintiff’s mental disorder, when judged objectively with other potential disorders, is to be correctly characterised as “severe” having regard to its nature and resulting symptoms, the nature and extent of treatment, and all the consequences informed by an analysis of ordinary activities before compared to after an accident.
[7]Katanas v Transport Accident Commission [2016] VSCA 140 at paragraphs [19] and [30] (per Ashley and Osborn JJA)
[8] Noonan v State of Victoria [2013] VSCA 289 (“Noonan”)
[9]Katanas (supra) at paragraph [26] referring to Katanas v Transport Accident Commission [2016] VSCA 140 at paragraph [30]
[10]Noonan, following Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 and Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
18In assessing the severity of a mental disorder or disturbance by comparison to the range or spectrum of comparable cases, a judge must identify and bring to account all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment and make a value judgement in accordance with the principles enunciated in Poljak.[11]
[11] Poljak at 140, per Crockett and Southwell JJ
19The weight to be attached to the plaintiff’s account of his or her pain and suffering will be affected by an assessment of the plaintiff’s credibility.[12] A plaintiff’s credibility is relevant also to the reliability of the medical evidence. The opinions of doctors depend on the credibility and reliability of the history given to them by a plaintiff.[13] Medical opinions by experts may be of reduced weight if the plaintiff is shown to be an inaccurate historian. However, a court is not bound to simply reject psychiatric opinions founded upon an unreliable history. The court may be able to reach a conclusion as to the existence or non-existence of a particular condition, even if the psychiatric opinions are based upon facts in conflict with the facts found by the court.[14]
[12]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”); at 5, paragraph [12], citing Dwyer at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[13]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14], Chernov JA (Maxwell P and Neave JA agreeing)
[14]Tame v New South Wales (2002) 211 CLR 317; HG v R (1999) 197 CLR 414; Cavenett v Commonwealth [2007] VSCA 88; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104; Devaney v R [2012] NSWCCA 285; Whisprun Pty Limited v Dixon (2003) 200 ALR 447; Sejranovic v Berkeley Challenge Pty Ltd (supra)
20In undertaking the required assessment, regard must also be had to what is retained by a plaintiff as well as what is lost.[15]
[15]Dwyer (supra) at paragraph [27]; Stijepic v One Force Group Pty Ltd & Anor (supra) at paragraph [44]
21Where a plaintiff can continue to work or return to work, it will ordinarily be difficult to conclude that the pain and suffering consequences are “at least very considerable”.[16]
[16]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 at paragraph [24]; Stijepic v One Force Group Aust Pty Ltd & Anor (ibid) at paragraph [47]; Haden (supra) at paragraph [15]
22A stoical plaintiff who puts up with pain and suffering should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.[17]
[17] Dwyer (supra)
The issues
23There is no dispute between the parties that Mrs Rye suffered a compensable injury.
24There was also no dispute between the parties that the medical evidence points to an unfavourable prognosis with no expectation for significant improvement. On that basis, Mrs Rye’s mental disorder is permanent, in the sense that it is likely to last for the foreseeable future.
25The central issue in dispute is whether, for the purposes of paragraph (c) of s93(17) of the Act, Mrs Rye’s Chronic Adjustment Disorder is of sufficient magnitude to satisfy the statutory test requiring it to be severe.
26The essential distinction between the position of Mrs Rye and that of the Transport Accident Commission (“TAC”) is that Mrs Rye submitted that her current diagnosed psychological disorder is significantly contributed to by the occurrence of Mr Rye’s transport accident and its circumstances. The consequences attributable to Mrs Rye’s Adjustment Disorder were submitted to be “severe” because she ruminates on the accident and that produces adverse consequences for her including: interrupted sleep; regular nightmares and flashbacks of the accident; changes to her mood and temperament; an inability to multi-task; difficulties in concentration and with memory; an increased workload on the farm; increased caring responsibilities; ongoing psychological treatment and reliance upon it; a reduced social life and a feeling that she was “surviving rather than living”.
27The TAC submitted that this is not a case where the plaintiff has suffered psychiatric injury consequent upon a physical injury to herself. Rather, Mrs Rye’s psychiatric injury has developed consequent upon injury to her husband. The injuries sustained by Mrs Rye’s husband have necessarily involved changes to lifestyle and losses to the plaintiff. In considering whether Mrs Rye’s impairment consequences satisfy the narrative test, it is necessary to focus on the symptoms and consequences flowing from the claimed disturbance/disorder, in this case, an Adjustment Disorder.
28It was submitted that there were pre-existing impacts upon Mrs Rye’s mental health which have contributed to her psychiatric condition, making the contribution of Mr Rye’s transport accident far less significant than suggested by Mrs Rye’s affidavit evidence – principally, her history of pre-existing marital difficulties and discord due to her husband’s mental and personality difficulties, as well as her back injury. While no challenge to Mrs Rye’s credit was made, it was submitted that aspects of her evidence were unreliable.
29Further, the TAC relied upon various factors which it said demonstrated the functional capacity Mrs Rye has retained, as opposed to what she has lost. These included the farming work she does every day; book-keeping and farm management activities; maintaining her home and property; cooking; gardening; shopping; driving, and socialising with friends, both alone and with her husband.
30It was submitted that while Mrs Rye’s mild or mild to moderate Adjustment Disorder has impacted her life, her retained activities, her ability to function without resort to psychiatric care, or anti-depressant or sleep medication, demonstrate that, assessed both subjectively and objectively, Mrs Rye’s psychiatric injury does not meet the high threshold of “severe”.
The evidence
31Mrs Rye was the only witness called to give evidence and to be cross-examined. Two affidavits of herself, an affidavit of her friend, Laraine Blume, medical reports, health records and clinical notes were tendered into evidence. I shall refer to those parts of the evidence and reports which are most relevant, which I have relied upon in coming to my conclusions, and which disclose the pathway of my reasoning.[18]
[18] Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23-[36]
Treating medical evidence
Counselling
32Mrs Rye sought counselling in 2012 as she wanted help to deal with her husband’s depression. He had taken himself off his medication and was unhappy and angry a lot of the time.
Dr Robertson – Hamilton Medical Group (general practitioner)
33Before the transport accident on 1 April 2014, Mrs Rye consulted Dr Robertson, her general practitioner at Hamilton Medical Group, and disclosed that she had ongoing stress with her husband, his mental health and him refusing all help.
34Following her husband’s accident, Mrs Rye continued to attend Dr Robertson in relation to the ongoing problems she was experiencing, and the stress and trouble she was having coping after her husband’s accident.
35There were references in the notes to Mrs Rye being tearful after the accident; her ongoing problems with her husband; her trouble coping; her trouble with stress; and her husband’s acquired brain injury and memory deficiencies. Behavioural issues were discussed, as well as Mrs Rye’s husband’s irritability, occasional outbursts of violence, frequent abuse, and rapid and unpredictable mood swings.
36Mrs Rye’s treatment history has not involved prescription of anti-depressants, referral to a psychiatrist, hospitalisation, or suicide attempts or ideation. However, Mrs Rye has consistently sought treatment from a psychologist, and medication has been recommended but was declined by Mrs Rye because of the effects it may have had upon her, given her experience with pain medication in the past.
Kelli Garrison (treating psychologist)
37On 3 May 2016, Mrs Rye was referred to Kelli Garrison, psychologist. Ms Garrison prepared a mental health (psychology) treatment plan for Mrs Rye. This recorded that Mrs Rye had presented to Ms Garrison with depression and symptoms of tearfulness, hopelessness, and fatigue and anxiety with symptoms of worry and fear in respect of her husband’s permanent impairments, social isolation, the escalating demands of farm management, entrenched psychological symptoms, her age as well as relationship problems.
38Mrs Rye’s claimed psychiatric condition, consequent upon the transport accident, was assessed and diagnosed by Ms Garrison on 8 May 2018 as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
39Mrs Rye has continued to see Ms Garrison monthly up to the present time for treatment for her mental disorder. The histories taken by Ms Garrison include references to psychological symptoms inhibiting Mrs Rye’s personality; vivid dreams; relationships; social activities; mood; daily activities; sleep; concentration and memory; work on the farm, and ability to care for her husband. There was discussion about prescription of anti-depressants in May 2019 which Mrs Rye considered but declined.
40Ms Garrison’s clinical notes paint a picture of Mrs Rye’s Chronic Adjustment Disorder over time after her husband’s accident. I have had regard to the entirety of the notes, but I note the following entries which provide some context to the consultations generally:
30/5/16: “Manages mostly alone – including farm work.”
2/8/16:“His capacity for work, simple problem solving (eg. route across paddocks) much reduced [increasing] L[orraine]’s load.”
28/11/16: “Load of farm, [No] time alone. [No] change. V[ery] stressful.”
7/3/17: “Financial stress [increased].”
1/5/17: “Struggling ++ [with] farm – self-carer, companion, disc[used] time out.”
19/6/17: “Tough times [with] lambing & marking; lots of deaths. M[ark]’s ability to multi-task v[ery] v[ery] compromised, & frustration evident again.”
21/8/17: “Deeply distressing incident. Mark shouted, raised fist & pushed her.
- He is unable to (verbally) process [with] her after.
- Limits of his capacities reviews
- Fear [increasing]; future consid[ered]
- Safety 1st stressed …
…
Mark [decreasingly] coping [with] farm work – anger [at] animals.”
18/9/17: “Back from the brink. M[ark] able to ‘go down the paddock’ when getting overwhelmed.
- A little [increased] acceptance of what I just can’t do.”
6/11/17: “Mark has ‘dug deep’ & been able to moderate his outbursts pasts 8/52 …
- Fears for his wellbeing if re[lation]ship ended, if couldn’t farm … .”
15/2/18: “All responsibility for organising oversight, house & farm m[ana]g[emen]t are Lorraines
- With no closeness, conversation or gratitude.
- Magnitude of tasks often over-whelming.
- [Increasingly] tearful, flat
- Few understand, even friends.
- Has to tell Mark car work to stop.”
27/3/18: “- Broached car issue – M[ark] got so upset threw a crystal glass [at] door after L[orraine] went inside
- So distressing
- [Increasing] poor sleep. M[ark’s] very low awareness; couldn’t understand why L[orraine] needed to talk to someone about it.”
10/7/19: - So overloaded on farm
- Deeply distressed by n[ews]paper report that the [person] who hit Mark has had another MVA.”
11/9/19: “[Lorraine] got v[ery] ill.
…
[Mark] got so stressed when L[orraine] ill was shouting at times
- ? he was frightened
- Vivid dream set in future –
? meaning.”
16/10/19:“V[ery] v[ery] stressed, tearful
- Good times [with] Mark contrasted [with] short temper & rigidity to increased despair
- Farm overloading.”
13/11/19:“High stress ongoing.”
11/3/20: “- Solicitor advised TAC rejecting claim. Anger disc[usse]d.
- Acute stress on day of accident
- revisited … old diary
- Mark’s lack of empathy, aloneness, loss of autonomy disc[use]d.”
16/4/20: “Really flat – exhausted, struggling to get up in the morning
- Has not been out 3/52, seen no one & no internet capacity
- Mark struggling too …
- Mentally ‘I’ve had it’.”
13/5/20: “Agreement to keep Merinos 2 more years then sell …
- How to stay on property & decrease load discussed. Feels so isolated.
Upset all day … .”
10/6/20: “So flat, frustrated [increasingly] by excessive responsibilities, M[ark’s] inability to empathise, or cope [with] farm demands
…
- M[ark] relying on L[orraine] cognitively.”
22/7/20: “Mark shouted [at] Lorraine, swore at her, clenched fists.
…
Mark overloaded by farm demands.”
28/10/20: - “Poor sleep (waking)
[decreasing] support from Mark
- He is making mistakes [with the] sheep
…
- Week and a half of feeling so stuck
- Encouraged to call if needs
- Tears, overwhelmed, hopeless.”
10/11/20: - Sad, flat, frustrated.”
Road trauma support
41After her husband’s discharge from hospital in late May 2014, Mrs Rye had some road trauma support over the phone to talk about the burden she felt of carrying the farm, the house, the finances and caring for her husband who was cognitively struggling, lacked empathy, was depressed, angry and forgetful. She then saw a counsellor, Les Rose, for five sessions, sometimes with her husband. Mrs Rye expressed anger at the driver of the car which had hit her husband, frustration with the TAC, and was stressed because of the increased demands on her time as her husband was no longer able to do as much farm work. The farm was no longer providing her with satisfaction, and she felt trapped and tied to the farm. Mrs Rye also saw a psychologist for three sessions. She did not find that psychologist particularly helpful.
Independent medical experts
Dr David Weissman (first and second reports)
42Dr David Weissman, consultant psychiatrist, was initially retained to see Mrs Rye for a joint medical examination on behalf of both Mrs Rye and the TAC. He prepared an initial report dated 13 February 2019, a subsequent report dated 19 February 2021 and a third report dated 26 August 2021.
43In his first report dated 13 February 2019, Dr Weissman diagnosed Mrs Rye as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood associated with traumatisation features of moderate intensity or severity. Dr Weissman noted Mrs Rye’s developmental history and childhood; her occupational history including working in various retail businesses in Castlemaine for about 25 years; and more recently running a sheep farm at Tarrington, Hamilton. He detailed her family including her marriage of over fifty years to her husband Mark; her habits; medical history; psychiatric history, and premorbid personality.
44Dr Weissman referred to the very serious and life-threatening bicycle accident involving Mrs Rye’s husband in which he had been “mowed down”. He noted that Mrs Rye was tearful and distressed about this, and that although she had not been involved in the bicycle accident, it had significantly and profoundly impacted on her life and her ability to function day-to-day.
45Mrs Rye’s relationship with her husband Mark had been affected. Mrs Rye told Dr Weissman that her husband had changed markedly since his involvement in the accident. He had sustained a closed head/traumatic brain injury and had been diagnosed with Post-Traumatic Stress Disorder and Depression. He had become snappy, irritable and grumpy. He was verbally abusive towards her and had threatened her physically. Mrs Rye described finding it very difficult to talk to him and described having “learnt to keep quiet”.
46Dr Weissman described Mrs Rye as being, “to a certain extent, a strong, stoical and resilient person, though there was evidence of some underlying fragility, lability, emotionality, tearfulness and emotional distress”.
47She had previously described being happy, bubbly and joking, with an excellent premorbid quality of life, level of function, level of activity, occupational history, occupational capacity, mental and emotional health. She had enjoyed a range of social, leisure and recreational activities and hobbies including gardening, cooking, going to the gym, and going to the hydrotherapy pool.
48After the accident, she described having a lot of trouble sleeping, for which she had previously been prescribed Stilnox, but which she declined to take as she was concerned it would not enable her to function. She said her “terrible” dreams about herself drowning had resolved, but she still had occasional thoughts of the accident. When she lay in bed at night, sometimes thoughts of the accident came to mind and sometimes thoughts and worries about problems between her and her husband came to mind.
49She described having had reasonable concentration and short-term memory when she first saw Dr Weissman, but identified that she had had to deal with her husband’s cognition as well as her own and he tended to be forgetful and could not do things on his own.
50While she still enjoyed cooking and gardening, she was now obliged to look after the farm and that is, in her words, “damn hard work” and not a leisure activity and hobby. She does bookwork and tax as well.
51She had capacity to perform activities of daily living such as showering and dressing herself. She occasionally missed a shower when she stayed home. She remains able to cook, to shop, to clean and do laundry, although vacuuming is difficult because of her sore back. She is also able to drive.
52She acknowledged that while she and her husband had planned to travel overseas together, there was “no way” that her husband would be able to travel overseas now.
53In her first interview with Dr Weissman, Mrs Rye described having some libido, but said her husband had none and that had significantly affected their physical relationship. In her subsequent consultation, she said she and her husband no longer had a physical relationship. Because of the accident, her husband was angry, frustrated and violent.
54Mrs Rye told Dr Weissman that her emotional state varied. Sometimes it would be good. Other times she was “so fragile”. She sometimes felt depressed, sad, flat, low and down. It was like she is going through a mourning period. She was not very happy and became quite depressed.
55In his February 2021 report, Dr Weissman recorded that some mornings she did not want to get up. Hardly a week went by, he recounted, where she did not end up in tears. She rated her morale and spirits as 5 out of 10, or probably even lower.
56Mrs Rye described how caring for her husband after his accident, and the adjustment to his altered self, had resulted in multiple psychological stressors for her. Her husband is snappy, irritable and grumpy, verbally abusive and has threatened her physically. He has been diagnosed with Post-Traumatic Stress Disorder and Depression. She conveyed to Dr Weissman the change in her husband. She said, “to what Mark was before the accident and to see him now is heart breaking”.
57Everything has completely changed. Mrs Rye is now his carer, parent figure and his “memory”. He is dependant and reliant on her.
58Mrs Rye’s feelings for her husband have changed and she does not know about the future. She said, “What future? I don’t know.” She was a strong, stoical and resilient person, but the accident has been a significant challenge for her.
Associate Professor Doherty
59Associate Professor Doherty, consultant psychiatrist, agreed that Mrs Rye had a Chronic Adjustment Disorder but rejected the suggestion that it had traumatisation features or was of mild to moderate intensity or severity. He opined that it was of mild severity only.
60Associate Professor Doherty raised the issue of Mrs Rye’s difficult relationship with her husband and suggested that this was pre-existing and was the likely cause of the current psychiatric condition. He noted a counselling session in March 2012 and comments from Mrs Rye’s general practitioner in his clinical notes dated 1 April 2014 to the effect that she was experiencing ongoing stress related to her husband’s mental health and depression and was frustrated and irritated at his anger and refusal to help with housework and cooking. He also said that her affect at interview showed high levels of tension, irritation and disgruntlement.
61Associate Professor Doherty was of the view that the consequences of the transport accident as reported by Mrs Rye were caused by an aggravation of a pre-existing unhappiness, in the form of worsening of mild depressive symptoms present at the time of the transport accident. He considered that the aggravation of the pre-existing mild depressive symptoms was due to stress in the marriage, the depression experienced by Mrs Rye’s husband and unhappiness on Mrs Rye’s part, and continued now in the form of an Adjustment Disorder of mild severity. The symptoms were not of sufficient strength to warrant the making of a diagnosis of Depression. The Adjustment Disorder was due to significant problems in the relationship between Mrs Rye and her husband, and in her mental health before the accident.
Dr David Weissman (third report)
62Following consideration of Associate Professor Doherty’s report, Dr Weissman provided a further report dated 26 August 2021. In his second report, Dr Weissman had considered that whereas he initially thought Mrs Rye had suffered from moderate mixed depressive and anxiety symptoms and signs as well as traumatisation features relevant to the transport accident, her psychiatric state had improved slightly. By the date of his February 2021 report, he considered that she was suffering from a mild to moderate Chronic Adjustment Disorder with mixed depressive and anxiety symptoms and features with frustration and mild traumatisation features. He considered that her psychiatric condition had stabilised but that she would never fully recover from the widespread impact of the accident.
63There was a recognition by Dr Weissman that Mrs Rye’s relationship with her husband was not as good as he had originally understood it to be. He remained of the view though, that Mrs Rye was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood with frustration and associated traumatisation features, of mild to moderate intensity or severity.
64Dr Weissman responded to Associate Professor Doherty’s opinions by acknowledging that Mrs Rye has had sleep difficulties since her husband’s accident. She has been uptight and on edge. She has reported waking with tightness in her chest, jaws hurting and difficulty breathing.
65Dr Weissman noted reference to Dr Rebecca Dale’s medical notes from the Littleton Street Medical Clinic in Castlemaine.
66Dr Weissman then reflected upon Mrs Rye’s general practitioner’s clinical note of 1 April 2014, before the accident, referring to the “ongoing stress” which Mrs Rye experienced with her husband’s mental health and with his refusal of all health support offered. He noted various reports from Dr Robertson referring to ongoing problems experienced by Mrs Rye after the accident coping with her husband’s condition. In large part, his opinion was that the references in Dr Robertson’s notes support the accounts of events provided by Mrs Rye. They confirm that she did have ongoing problems with her husband’s condition. She did have some back pain, but at the same time she was tearful about the accident stressors, her husband’s depression, and his acquired brain injury. She was experiencing sleep difficulties and she had been prescribed Stilnox but was tearful and stressed and so was not using it. Mrs Rye’s husband was reported to be abusive and had pushed her over.
67Dr Weissman also noted that Mrs Rye considered her current mood level to be 2 to 3 out of 10 which he considered to be significant. She was anxious and on edge and although she had no clear panic attacks, she had woken up with tightness in the chest, jaws hurting and with difficulty breathing.
68Dr Weissman also referred to entries in Ms Garrison’s notes referring to Mrs Rye’s stress being very high, or to a “really difficult month”.
69She felt isolated. Socially, she had not seen her son since Christmas Day, and not many people drive out to the farm.
70Dr Weissman noted that in preparing his report, it would have been preferable for him to re-examine Mrs Rye. He could then have put to her the new history and information about such things as her relationship with her husband prior to the accident. Notwithstanding this, he noted that he had asked Mrs Rye about her relationship with her husband prior to the accident and had detailed her response in his first report. Mrs Rye had endorsed the views Dr Weissman had expressed in his first report for the purposes of Dr Weissman’s second report.
71This contrasted with Associate Professor Doherty who, Dr Weissman suggested seemed to have relied only on clinical notes and had not directly asked Mrs Rye about the nature and quality of her relationship with her husband before the accident in arriving at his opinions as to the effect of Mrs Rye’s marriage on her pre-existing and current psychiatric state.
72Dr Weissman noted his view that Mrs Rye’s marital relationship with her husband was stressed and strained at times over the years and, in fact, was at times significantly strained. He explained, however, that it was difficult for him to say whether that was more than “normal” or the “usual” degree of strain that exists in some marriages from time to time. He opined in his report that the marital relationship before the accident was not as good as he had originally understood it to have been and that Mr Rye was probably not accurately described as someone “who was quiet and often deep in thought”. Like Associate Professor Doherty, he agreed that Mrs Rye did not have a diagnosis of Depression before the accident and that she currently has a Chronic Adjustment Disorder. He considered that Mrs Rye does have accident-related traumatisation features and that because Associate Professor Doherty did not specifically enquire about post-traumatic stress and anxiety symptoms, he failed to capture those symptoms. Dr Weissman maintained his view that Mrs Rye does have a mild to moderate intensity Chronic Adjustment Disorder.
73Dr Weissman synthesised the history and presenting symptoms in this way: he said that whatever Mrs Rye’s husband’s personality, temperament, character and behaviour prior to the accident, there is little doubt that there has been a significant change in all domains and aspects of her husband’s behaviour. There is now a moderately severe amount of behavioural disturbance with frequent verbal, physical and violent outbursts. This has been extremely distressing and traumatic for Mrs Rye.
74He opined that where there is from time to time, stress and strain and ambivalence in a relationship prior to an accident, and where there has been a severe additional trauma (in this case, Mrs Rye’s husband’s accident), the pre-existing ambivalence potentially explains and amplifies Mrs Rye’s emotional reaction and distress.
75There was no anti-depression medication prescribed, but this, he said, was not conclusive. As outlined by Dr Weissman in his first report, Mrs Rye is a stoic individual.
Are the nature and symptoms of the injury and the consequences subjectively severe to Mrs Rye and is the mental disorder “severe” when judged objectively by comparison with other cases in the range of comparable cases?
76As required, I will go about the two-stage analysis referred to in Katanas by assessing whether the consequences of the injury are severe to Mrs Rye in the sense that they are more than very considerable as at the date of the application, and also whether, when judged by comparison with other cases in the range of possible impairments, her mental disorder is severe.[19] To perform that analysis, I will identify and bring to account all relevant circumstances personal to the plaintiff. I will then make a value judgement in accordance with the principles set out above enunciated in Poljak.[20]
[19] Noonan (supra)
[20] at 140, per Crockett and Southwell JJ
Mrs Rye before and post the accident
77In her affidavits and evidence, Mrs Rye claimed her psychiatric injury to be “severe” by reason of a range of consequences. Mrs Rye’s affidavits provide some limited information about her life before her husband’s accident. She lived a full and active life and was involved in running a 90-acre sheep farm with her husband. Day-to-day she worked on the farm with her husband. She enjoyed cooking and her friend, Laraine Blume, described her as a “talented cook” in her affidavit. She enjoyed gardening and had a “real flare” for it. She was “fairly social” and described herself as an outgoing, happy and a bubbly type of person. She would catch up with friends for coffee.
78I formed the impression from Mrs Rye’s descriptions of the successful food businesses that she had run, that she was efficient and hardworking. She coped easily with managing a variety of tasks simultaneously. As Ms Blume observed, “she catered for her café, but also did functions. She worked full time and assisted in caring for her mother so was very busy.”
79Mrs Rye’s life was in many ways simple and routine, but it was happy. Indeed, Ms Blume described Mrs Rye and her husband prior to the accident as seeming “to be happy and thriving on the property”.
80The defendant submitted that before the accident, the relationship between Mrs Rye and her husband was stressed and that her husband was a difficult man. Mrs Rye’s affidavits do not delve into the nature of her relationship with her husband before the accident other than to record that they had been married for over fifty years. Some of Mrs Rye’s descriptions of how she felt immediately after the accident when she was confronted with the news that her husband had sustained very serious, life-threatening injuries, give a degree of insight into the depth of their long-standing relationship. Mrs Rye said of her trip to the hospital upon learning of her husband’s accident, that she “was in such a state that I ended up in a street that I did not recognise”. She said she was “feeling extremely distraught by what had happened”.
81Ms Blume’s affidavit also described Mrs Rye as being “distraught”. The depth of that emotion, the despair, doubt, mental conflict, or pain she felt, gives some indication of Mrs Rye’s immediate loss. It is, nevertheless, difficult to conclusively assess the strength of the marital relationship and the loss that has been occasioned to Mrs Rye because of her husband’s transport accident based solely on Mrs Rye’s affidavits and that of her friend. In that sense, Mrs Rye’s credibility and reliability is important.
82In her affidavits, Mrs Rye said that her life has never been the same since the day of the accident. There is not a day that goes by that she does not think about what happened on that day and being told that her husband had been in an accident. She said that whenever she thinks about the accident – which continues to be most days – “I become upset, teary eyed and sad”. She said it is not every waking moment of her day, but it is invariably there. She becomes extremely upset when she talks about what happened and, on occasion, she goes to bed in tears just thinking about the accident.
83Ms Blume also confirmed that Mrs Rye is often upset and crying and seems depressed and unhappy. She seems exhausted.
84Ms Blume described that –
“Mark’s injury was such a terrible episode for them both and Lorraine’s life really took a 360 degree turn from that time. The consequences of the accident have been horrible and do not appear to have improved.
Mark is not the same as he used to be. He has trouble controlling his temper and suffers mood swings. … He gets frustrated and appears distant and disinterested. … he has been reluctant to pursue treatment or take anti-depressants. Lorraine has had to cope with this behaviour. …
Lorraine is now Mark’s carer. He is quite demanding and needs a lot of assistance. She is reluctant to leave him alone and feels trapped. …
Lorraine deals with the accident and its consequences every day. She gets no respite.”
85Mrs Rye said that she continues to feel anxious when they drive by the site of her husband’s accident.
86Her ability to sleep has become disturbed. Initially, it was every night, and although it has improved somewhat, sleep is still a problem. She regularly finds herself tossing and turning in bed with her mind racing with thoughts of her husband’s accident.
87She described having bad dreams about the accident. She said that they had tapered off a bit, but she has continued to have two or three of these bad dreams involving her own safety such as drowning. In one, she said she was on a beach and the water was calm and the next thing there was a huge wave 20 metres high which came down and dumped on her. She described another nightmare where her husband entered the room and had a huge hole in his chest. She said that in the dream she called triple zero and someone arrived at the house but then she woke up. She said she often woke up in a panic and screaming. Her husband has also had to wake her.
88She has become forgetful and does not remember what she was supposed to be doing. She gave several examples, including forgetting where she had parked her car and needing to take a big pad around with her to write down all the things she needed to do.
89She is no longer able to multi-task. She could previously cope with multiple tasks such as running her own business. However, now, she has difficulty performing one task.
90She feels less inclined to cook. She gardens less.
91Her social life has been impacted. She acknowledged that although this had been impacted by COVID, she tends not to go out and catch up with friends as much as she used to. This was confirmed by Ms Blume.
92Plans to travel with her husband and to pursue her interest in genealogy have gone. As Ms Blume observed, the accident “has really spoiled her retirement”.
93Her workload on the farm has increased because her husband is restricted in what he can do. She feels she must assist him with the lambing and putting feed out and, as Ms Blume observed, “working with sheep is hard work”. Mrs Rye finds the work difficult and often does not feel up to it, but she said that she has little choice as she knows her husband cannot do it on his own. She previously did the paperwork, but now juggles everything and this creates a great deal of stress.
94Mrs Rye described that she only manages to get by and manage her condition after her sessions with Ms Garrison who she has seen, and continues to see, about once a month.
95She does not take anti-depressant medication. She said she has been advised by Ms Garrison that it is “too late for anti-depressants”. She said, in any event, she would not have been overly keen to take them. She feels she needs to remain focused to provide care for her husband because of his injuries. Additionally, she has seen the side effects of anti-depressant medications on her husband who has described them to her as being “in a fog”. She has also had the experience of having taken prescription pain medication for her back which was not particularly pleasant.
96Mrs Rye has not been hospitalised or referred to a psychiatrist for treatment. There have been no suicide attempts. Nevertheless, she said that some days she feels so bad that all she wants to do is go to bed and sleep, but she knows she cannot do that. She described feeling that she was “surviving rather than living”.
Pre-existing matters – marital relationship, husband’s personality, bad back
97As set out above, the TAC relied upon Mrs Rye’s history of pre-existing marital difficulties and discord due to her husband’s mental and personality difficulties to contend that there were pre-existing impacts upon Mrs Rye’s mental health which contributed to her psychiatric condition, making the contribution of Mr Rye’s transport accident far less significant than suggested by Mrs Rye’s affidavit evidence. It also referred to Mrs Rye’s long-standing back injury and osteoporosis as a source of some of the consequences from which she now suffers.
Cross-examination of Mrs Rye
98The extent of the claimed “severity” of Mrs Rye’s psychiatric injury and consequences were the subject of cross-examination, as was Mrs Rye’s pre-existing marital relationship problems with her husband. Mr Ruskin QC cross-examined Mrs Rye about the description of the relationship with her husband which she had given to Dr Weissman. He asked whether the description of the marriage she had given to Dr Weissman before the car accident was an accurate portrayal of the marriage, to which Mrs Rye answered, “Yes”.[21]
[21] Transcript (“T”) 11, Lines (“L”) 4-15
99Mr Ruskin QC then took Mrs Rye to evidence about the state of her marriage before her husband’s accident. Mrs Rye agreed that she had attended one[22] counselling session only, in March 2012.[23] This followed marital problems for one year. Because the marital problems had not got any better, and Mr and Mrs Rye were not getting on very well, Mrs Rye felt that she needed somebody to help her to resolve that issue.[24] She said in cross-examination that her husband had been diagnosed with Depression some time before she attended counselling. He had required medication, which he initially took, but then he weaned himself off it[25] because, as Mrs Rye described it, “he felt like he was living under a blanket”.[26] That caused him to be a difficult person to live with.[27] He was very quiet, always upset and he was angry. He was unpleasant to be around and at times, his moods were oppressive, in the sense that they were making life very difficult.[28] Mrs Rye said that she felt there were limitations on seeing her friends before the 2012 counselling session because of her husband, including that he was a difficult man and worked from home and used to come in for lunch.[29]
[22]Mrs Rye’s evidence as to the number of counselling sessions was clarified in re-examination at T42, L16‑23
[23] T12, L30-31
[24] T13, L16-T14, L1
[25] T14, L2-12
[26] T15, L9-11
[27] T14, L13-14
[28] T14, L15-30
[29] T15, L14-23
100After the March 2012 counselling session, Mrs Rye accepted that the problems with the marriage continued over the next year or two.[30] She was asked about an entry in the medical record dated 11 February 2013,[31] “stress with [M]ark depn, coping”. She first said, “I’m not sure what that means, coping”, and then accepted that she and Mr Rye were having continuing problems by way of stress.[32] In re‑examination, she said “from what I can remember obviously I was stressed but I thought that I was coping. Otherwise, I can’t remember.”[33]
[30] T16, L23-25 and T18, L14-17
[31] T17, L7-10
[32] T16, L5-25
[33] T41, L2-9
101Mrs Rye agreed that the stress problems, her difficult husband and her marriage problems continued after February 2013.[34] She also acknowledged some back problems and osteoporosis[35] and that when she returned to see her doctor on 1 April 2014 to discuss these, she said it was important for her to discuss the fact that there was ongoing stress, that her husband had a mental health problem, was depressed, difficult to live with, and angry.[36] He would not take his medication, was stubborn and she had been unable to persuade him to get himself fixed.[37]
[34] T19, L11-14
[35] T19, L21-28
[36] T20, L1-17 and T20, L28 – T21, L5
[37] T21, L7-19
102It was then put to Mrs Rye, again, that over the years before April 2014, everything was not fine with the marriage. Mr Ruskin QC questioned, and Mrs Rye answered, as follows:
“Q:When I asked you at the beginning of my questions about the marriage, that you told Dr Weissman that you always came through problems and everything’s been fine, as at April 2014 over the years before, everything wasn’t fine, was it, with your marriage?---
A: No.”[38]
[38] T21, L26-30
103Finally, it was put that she had not referred to the difficulties in her marriage in her affidavits and she was asked whether there was a reason for this. She replied, “no”.
104Her evidence then was that nonetheless, her husband was worse because of the accident.[39]
[39] T23, L1-2
105Mr Ruskin QC then put a series of other matters to Mrs Rye. He said that she sees Ms Garrison to “deal with a difficult husband”.[40] One of the problems identified was that Mrs Rye’s husband can be verbally aggressive, angry and irritated.[41] Mrs Rye said in re-examination that she started seeing Ms Garrison after the accident[42] and that Ms Garrison has given her books to read, and a technique known as “fight or flight” which means she sometimes confronts her husband and sometimes she does not. Mrs Rye said that technique has assisted. Her husband has become a little calmer and is learning to be a little bit more pleasant.[43] This was clarified in re-examination. Mrs Rye indicated that her husband’s aggression had escalated. Before the accident, it “would have only been verbal, after the accident it has been physical” on “three occasions”.[44] Mrs Rye said that “before the accident …he was very frustrated with the work he was trying to do which was very, very difficult, nothing to do with the farm. And afterwards his outbursts, he says, weren’t – verbal outbursts weren’t aimed at me but due to his frustration with everything, but that was more the verbal, … .”[45]
[40] T23, L6-T24, L25
[41] T24, L7-12
[42] T42, L29-30
[43] T29, L29-T30, L18
[44] T39, L10-16
[45] T40, L11-23
106Mr Ruskin QC then put to Mrs Rye that notwithstanding the difficulties she experienced with her husband, she has continued to engage in working long hours every day on the farm dealing with the sheep and the crops.[46] She agreed that she is committed to doing the farm work[47] even though she has osteoporosis and a bit of a back problem.[48]
[46] T24, L26-T25, L10
[47] T30, L29-30
[48] T30, L24-28
107She later agreed, when asked about the “My Aged Care Report” prepared on 28 January 2020, that she has chronic back and sciatic pain[49] with some restriction of movement and activity.[50] The farm work required her to be skilful[51] and involved accounting[52] and other paperwork including keeping records of the animals, inoculations and veterinary records.[53] Mrs Rye acknowledged that it was hard work.[54] She acknowledged that it gave her some pleasure,[55] but she described in re-examination her enjoyment now as “much less, probably – maybe sort of 50 per cent now compared to what it was”.[56] She also said that in relation to the day-to-day running of the farm, other than some assistance once a year at shearing time, there was no-one she could call on for help.[57] She now does 70/30, more work than her husband.[58]
[49] T34, L1-15
[50] T35, L16-22
[51] T25, L18-20
[52] T25, L21-22
[53] T26, L11-15 and T27, L5-26
[54] T25, L11-12
[55] T25, L11-17
[56] T39, L1-6
[57] T43, L3-8
[58] T29, L1-6
108Her right-sided sciatica causes some pain lying down at night and interrupts her sleep from time to time.[59]
[59] T36, L2-10
109Mrs Rye was also asked about her ability to socialise with friends at coffee. She agreed that taking COVID out of the picture, she has been able to have coffee with her friends since the accident either on her own or with her husband. She said she did not feel motivated, but if she was invited by her friends, she would go.[60] She also said that at her interview for the “My Aged Care Report” in January 2020 she was feeling a little socially isolated and agreed that she had said she was interested in further social activity and agreed to a referral to the café program.[61]
[60] T27, L27-T28, L22 and T34, L31 – T35, L4
[61] T35, L5-12 and T36, L30 – T37, L1
110In re-examination, Mrs Rye clarified that before her husband’s accident, she saw her friends two to three times a week plus Saturdays.[62] Her back pain had never stopped her socialising with her friends.[63] After the accident, but before COVID, she was seeing her friends twice a week, and before the assessment, she was having coffee on a Saturday, but the café program was introduced after that assessment. Her evidence, when asked how that compared with the situation before her husband’s accident, was “a lot less after the accident”.[64]
[62] T38, L12-17
[63] T42, L12-15
[64] T37, L21 – T38, L17
111She said that she has been unable to see her son who lives in Castlemaine but agreed that was a COVID problem.[65]
[65] T30, L20-23
112She is also now unable to travel. She agreed she would not be able to do that currently due to COVID, but her husband is also now in such a situation that he would be unable to travel.[66]
[66] T31, L4-7
113In relation to her ability to cope since the accident, Mrs Rye agreed that she thinks about the actual accident a lot less now unless there is something that triggers it.[67] In re-examination, she said that she does, nevertheless, still think about her husband’s accident; particularly when she reads things in the local paper, or if she meets someone in the street and they bring up the accident. That makes her feel terrible and it “brings it all back, all the time, and then you don’t sleep at night”.[68]
[67] T29, L9-13
[68] T38, L22-31
114She has a well-kept home[69] and continues to do the cooking as she did before the accident, the shopping, and the gardening at the property.[70]
[69] T36, L23-26
[70] T32, L4-16 and T34, L31 – T35, L4
Credit and reliability
115I had the advantage of observing Mrs Rye give evidence. She was at times tearful and appeared sad. I got the sense of someone who faces a bleak future. The impression I gained overall was that she was a truthful witness. She was straightforward and frank. Her answers were brief and to the point. At times I was left with the impression that she had more she would have liked to have said, but was not asked. In any event, she did not attempt to avoid questions posed of her, even difficult questions. I consider she took the questions she was asked very seriously. She considered her answers thoughtfully and was attempting to give completely honest answers to the questions posed of her. In my view, there is nothing controversial about that and, in any case, the TAC did not attack Mrs Rye’s credit.[71]
[71] T51, L12-51
116The TAC nevertheless submitted that Mrs Rye’s evidence was unreliable. It was submitted that I should not rely upon her pre-accident marital relationship history in assessing the consequences of her injury, because it gave a picture of her marriage which was not accurate. In my view, Mrs Rye’s evidence was not unreliable, particularly when I take account of the way she presented before me.
117First, prior to the accident, while it is true, as Mrs Rye accepted, that there was disharmony in her marriage and Mr Rye was difficult before his accident, any issues this was causing Mrs Rye did not rise to the level of a psychiatric disorder. In those circumstances, very few, if any conclusions can be drawn from the fact that Mrs Rye had attended one counselling session in 2012 and had a consultation with her general practitioner on 1 April 2014 just prior to the accident.
118Second, to the extent that Mrs Rye said to Dr Weissman during her in-person interview on 13 February 2019, that her relationship with her husband over the years was good, that answer was not incorrect when the precise terms of the question and her answer are considered. That was how she described her experience of the relationship. In my opinion, that was not unreasonable having regard to a marriage of over fifty years. A descriptor like “good” is a relative concept and what might be regarded as “good” by Mrs Rye, may not necessarily be regarded in the same way by another person. That much was recognised by Dr Weissman. But that does not make Mrs Rye’s description invalid or unreliable.
119In any event, that was not all Mrs Rye said to Dr Weissman. She also qualified her use of the descriptor “good” by referring to the fact that “we’ve had our ups and downs, but we’ve always come through them and everything’s fine”. I understood that answer to be an acknowledgement that the marriage, at times, was not necessarily what she would describe as good, but overall, the relationship, over more than fifty years of marriage, was considered by her to be good. In my view, this answer does not affect the reliability of her evidence when considered as a whole.
120Third, the further answers Mrs Rye gave to questions in cross-examination about her marital relationship did not render her unreliable. Mr Ruskin QC cross-examined Mrs Rye about the description of her relationship with her husband which she had given to Dr Weissman and the questions he had asked her. Mr Ruskin QC asked:
Q:“So he says this, ‘Mark was born on 20 September 1947’, you see that? ---
A: Yes.
Q:Then I asked her about the relationship with each other over the years, she replied, ‘Good, we've had our ups and downs but we've always come through them and everything's been fine’; is that right?---
A: Yes.
Q:That’s what you said, but it is not quite an accurate picture, is it, of the marriage before the car accident, do you think? Would you say that is an accurate portrayal of the marriage?---
A: Yes”.[72]
[72] T11, L4-15
121Focusing on the specific question Mr Ruskin asked Mrs Rye – whether she thought his recitation of her conversation with Dr Weissman and the answer she had given to him was an accurate portrayal of the marriage to which her answer was yes – Mrs Rye’s answer was not an inaccurate answer for the reasons I have outlined. She did believe that her answer was an accurate portrayal of the marriage. In my view, that belief was honestly held, particularly when seen in the context of her overall direct, succinct, no-nonsense way of answering questions.
122Fourth, the concessions ultimately made by Mrs Rye about the difficulties in her marriage and her relationship with her husband before her husband’s accident also do not mean that her evidence in relation to her marital relationship or difficulties with her husband was inaccurate or insincere, or that her evidence about the consequences which have resulted for her because of his accident, are any less significant.
123Mr Ruskin QC took Mrs Rye to her discussion with Dr Weissman and her responses to his question at the commencement of the cross-examination about whether what she had said to Dr Weissman was an accurate portrayal of the marriage. Mr Ruskin QC questioned:
Q:“When I asked you at the beginning of my questions about the marriage, that you told Dr Weissman that you always came through problems and everything’s been fine, as at April 2014 over the years before, everything wasn’t fine, was it, with your marriage?---
A:No.”[73]
[73] T21, L26-30
124Mr Ruskin QC later submitted:
“And when I asked her on transcript whether that was correct, she said, ‘Yes’. But when I took her to other things, she said, ‘No, you’re right, no’. In other words, when corrected, she acknowledged she was wrong about that. Of course it wasn’t fine.”[74]
[74] T50, L6-10
125The effect of the submission was that because of the answers Mrs Rye had provided to the questions Mr Ruskin QC had asked during cross-examination, and because of Mrs Rye’s acknowledgement that she was wrong, and that the marital relationship was not fine, Mrs Rye’s evidence as to the state of her marriage, and the history she gave, were unreliable.
126The reliability of Mrs Rye’s evidence must be judged against the totality of the evidence. When Mrs Rye’s evidence is examined closely, in my view, she simply answered the questions she was asked. She did so in an exceptionally frank and fair manner, perhaps even to her own disadvantage. She was at times tearful and appeared to be giving substantial thought to her answers. Answering questions about her relationship was clearly difficult for her. The fact is that she never said, to either Dr Weissman nor Mr Ruskin QC, that her marriage was flawless or not without difficulties before the accident. She accepted that it had its ups and downs. In my view, Mrs Rye was a credible and reliable witness.
127Even if this conclusion is incorrect, and it could be said that Mrs Rye’s affidavit evidence with respect to her marital relationship did not disclose the full extent of her marital disharmony prior to her husband’s accident and should not be believed in that respect, that does not mean that I am required to therefore reject the balance of Mrs Rye’s evidence. It also does not mean that I must reject the medical evidence from Dr Weissman and consequently prefer that of Associate Professor Doherty.
128Notwithstanding all the foregoing matters, for reasons which follow, I am satisfied that there were some pre-existing marital difficulties between Mrs Rye and her husband, but Dr Weissman’s evidence as to the extent of such difficulties and the impact they have had on the consequences that Mrs Rye has suffered is to be preferred to that of Associate Professor Doherty.
129I have reached this conclusion because although Dr Weissman may not have fully appreciated the extent of Mrs Rye and her husband’s marital issues when he first met with Mrs Rye in February 2019, Dr Weissman was ultimately provided with Associate Professor Doherty’s report and had an opportunity to re-consider and amend his opinion. Having been provided with that opportunity, his opinion was that the marital relationship before the accident was not as good as he had originally understood it to be, and that Mr Rye was probably not accurately described as someone “who was quiet and often deep in thought”. Like Associate Professor Doherty, he agreed that Mrs Rye did not have a diagnosis of Depression before the accident. After the accident though, he maintained that Mrs Rye was suffering from a psychiatric disorder, being a mild to moderate Chronic Adjustment Disorder with mixed depressive and anxiety symptoms and features, with frustration and mild traumatisation features.
130His opinion was that whatever Mrs Rye’s husband’s personality, temperament, character and behaviour prior to the accident, there had been a significant change in all domains and aspects of her husband’s behaviour with frequent verbal, physical and violent outbursts. This was distressing and traumatic for Mrs Rye. Additionally, whatever the level of stress and strain in Mrs Rye’s relationship with her husband before the accident, that level of strain and frustration had been heightened significantly because of the severe additional trauma which resulted from Mr Rye’s accident.
131Dr Weissman’s opinion is supported by the clinical records of Ms Garrison, who noted the increasingly verbally abusive and violent behaviour of Mr Rye, his short temper and rigidity leading to increased despair, his lack of empathy, aloneness, loss of autonomy and inability to empathise. These matters resulted in observations by Mrs Rye of no closeness, conversation or gratitude from her husband. She became increasingly tearful and flat and felt that few people understood. She felt overwhelmed by the magnitude of tasks which confronted her. She had increased financial stress, was struggling with the demands of the farm and was a carer for her husband.
132The complaints listed by Mrs Rye about her husband’s behavioural disturbance and his neurocognitive dysfunction in the cognitive domains of attention and working memory, consistent with the pattern often seen in PTSD and/or other mood disorders, were also consistent with the neuropsychological assessment report prepared by Dr Robyn Stargatt two years after the accident and referred to in the report prepared by Mrs Louise Boin, neuropsychologist, dated 25 September 2016.
133Associate Professor Doherty, on the other hand, placed emphasis on what he described as the difficult relationship between Mrs Rye and her husband before the transport accident. He opined that after the accident, Mrs Rye “had more to deal with which frustrated and annoyed her”. His opinion was that the consequences of the transport accident as reported by Mrs Rye had caused an aggravation of pre-existing unhappiness, and worsening mild depressive symptoms present at the time of the transport accident.
134Having considered the evidence of both Dr Weissman and Associate Professor Doherty, I place more emphasis on Dr Weissman’s opinion than that of Associate Professor Doherty. There is a basis for Associate Professor Doherty’s view that there was some pre-existing unhappiness before the accident, but I do not accept that Mrs Rye had mild depressive symptoms present at the time of the accident. The factual basis for that view is not stated by Associate Professor Doherty and there is no evidence that Mrs Rye had been diagnosed with Depression before the transport accident. Because I do not accept that Mrs Rye had mild depressive symptoms before the accident, it goes without saying that I also do not accept that they worsened after the transport accident.
135Associate Professor Doherty did not specifically enquire about post-traumatic stress and anxiety symptoms. As a result, he did not capture and properly consider those symptoms which formed the basis of Dr Weissman’s opinion after Mr Rye’s transport accident that Mrs Rye does have accident-related traumatisation features.
136Further, from a review of the documents which Associate Professor Doherty says were provided to him, it does not appear that he was provided with a copy of Louise Boin’s report detailing the opinion of Dr Stargatt, that there was sufficient evidence to support a diagnosis of Mr Rye as suffering from mild traumatic brain injury with neurocognitive dysfunction and behavioural disturbance. In my view, this was an important diagnostic document which ought to have been provided to Associate Professor Doherty, if only as a means of understanding the nature and extent of Mr Rye’s injuries and the consequent impact on Mrs Rye.
137In my view, because this document was not provided to Associate Professor Doherty, his opinion, unlike that of Dr Weissman, placed too great an emphasis on Mrs Rye’s pre-existing relationship difficulties to explain the current disharmony between her and her husband.
138Finally, Associate Professor Doherty’s opinion, because it did not properly consider the impact of Mr Rye’s mild traumatic brain injury, placed too great an emphasis on what capacity Mrs Rye had retained to perform her pre-accident activities of daily living, at the expense of according appropriate weight to Mrs Rye’s post-accident impairment condition and the objective consequences suffered by her.
139In the end, the question to be answered is whether the consequences of the injury are severe to Mrs Rye, when judged objectively by comparison with other cases in the range of possible impairments or losses.
Findings
140I am satisfied that Mrs Rye is suffering from a Chronic Adjustment Disorder with mixed depressive and anxiety symptoms with frustration and mild traumatisation features. There was no dispute between the parties as to this. It is unnecessary for me to characterise whether it is mild or mild to moderate because, regardless of the label, the real issue is the consequences to Mrs Rye.
141I am also satisfied, based on Dr Weissman’s third report, that Mrs Rye’s psychiatric condition has stabilised, but that she will never fully recover from the widespread impact of the accident. She has been suffering from the Chronic Adjustment Disorder now for several years and I am satisfied that the evidence establishes that her disorder is permanent, in the sense that it will persist into the foreseeable future.
142The Act does not define severity, but for impairment consequences to be objectively severe, they must be at least more than “very considerable”.
143In undertaking the two-stage process identified in Katanas, I have started by considering the nature of Mrs Rye’s condition. Mrs Rye has a Chronic Adjustment Disorder. Dr Weissman says that there are traumatisation features present and the consequences from the car accident cause Mrs Rye a level of trauma. The Chronic Adjustment Disorder falls short of a Post-Traumatic Stress Disorder or a Major Depressive Disorder. However, consistent with the observation of Ashley and Osborn JJA in Katanas v Transport Accident Commission,[75] whether Mrs Rye suffers from a continuing Major Depressive Disorder, PTSD, or an Adjustment Disorder, is “simply a matter of labels”.[76] All impairment consequences must be considered.
[75] [2016] VSCA 140
[76] Ibid at paragraph [2]
144I have had regard to the symptoms of the Chronic Adjustment Disorder including tearfulness, hopelessness, fatigue, and anxiety with symptoms of worry and fear. The evidence does not reach the level of suicidal ideation or delusions, but there is a feeling of “just surviving”.
145I have also considered the overall impacts of the Chronic Adjustment Disorder upon Mrs Rye. I accept that Mrs Rye had other stressors before her husband’s transport accident, including marital difficulties. Nevertheless, I find that her Chronic Adjustment Disorder consequent upon her husband’s accident has been the substantial catalyst for the symptoms and consequences she has experienced – noting, as the High Court did in Katanas,[77] there is often no bright line between symptoms and consequences.
[77] at paragraph [29]
146There has been no referral to a psychiatrist or admissions to psychiatric hospitals. However, the Chronic Adjustment Disorder has resulted in ongoing psychological symptoms and consequences which have inhibited Mrs Rye’s personality. There has been a need for ongoing psychological treatment, and while anti-depressant medication was declined and Mrs Rye has been getting by without it, the medical evidence is to the effect that Mrs Rye’s decision was warranted.
147I accept that Mrs Rye ruminates on the accident and its consequences, that she continues to have nightmares and flashbacks, albeit that these have lessened over time. She continues to have a degree of interrupted sleep, partly due to the transport accident and partly due to her ongoing back and sciatic pain. She also has had mood and temperament changes as well as stress and trouble coping, including with the substantial change brought about by her new role as carer for her husband and as the primary worker on the farm. I also accept that she is now unable to travel.
148I have taken into account the very important fact that both Dr Weissman and Associate Professor Doherty considered that Mrs Rye was stoic and resilient. I agree with their conclusion in that regard and I consider this to be significant. I am conscious that to the extent that Mrs Rye has been prepared to put up with pain and suffering and has made the best of a very difficult situation, she should not be treated less favourably than an applicant who, by being of less strength of character, simply resigns himself or herself to the injury.[78]
[78]Dwyer (supra) at paragraph [3]; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [67]
149In my view, considering all the above matters, Mrs Rye’s subjective impairment consequences are more than at least very considerable or substantial from her subjective perspective.
150I am required to also consider whether Mrs Rye’s subjective impairment consequences, when judged objectively against the range of comparable cases, are severe.
151In undertaking this exercise, I have taken account of what was said by Ashley JA in Dwyer, that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. As his Honour observed, “impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
152In that regard, Mrs Rye’s life before the accident involved many routine day-to-day activities which she is still able to perform including cooking, gardening, cleaning, shopping, and driving a car. She is also still able to work on the farm. Having considered the evidence as to her ability to socialise with her friends, in my view, but for COVID, she would have retained some ability to socialise with her friends. What Mrs Rye has retained demonstrates that at one level she has been able to function.
153I have also considered, and taken account of, authorities which identify that if a plaintiff is able to continue to work or return to work, it may be difficult to conclude that the pain and suffering consequences are “at least very considerable”.[79] Mrs Rye has continued to operate the farm, an activity that she did before her husband’s accident. She has managed to maintain the books. She has introduced a new barley crop and has looked after 160-180 sheep. She has had to continue these activities, but now she is required to do significantly more work than before. It is hard and demanding work. On the one hand, she experiences some pleasure from the farm work which points away from a finding that her impairment consequences are severe. However, her evidence painted a clear picture of a person who was just “surviving” and doing what was expected of her to just keep going. She displayed minimal enthusiasm or joy in her day-to-day life.
[79]Sumbul v Melbourne All Toya Wreckers Pty Ltd (supra) at paragraph [24]; Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [47]; Haden (supra) at paragraph [15]
154To inform the evaluative process I am required to undertake, I have considered a range of cases including those which have fallen on one side of the line or the other. In Lexa v Transport Accident Commission,[80] there was no “severe” impairment having regard to the plaintiff’s treatment history (many visits to psychologist, Zoloft only, no referral to a psychiatrist, no hospitalisation, no suicide attempts, and very little therapy). In that case, the plaintiff was functioning at a “pretty good level” at the time of the relevant accident. The plaintiff had developed “major problems with depression”, “had had periods where he had been suicidal and where he had not had the capacity to make decisions”. Nevertheless, no “severe” impairment was found.
[80] [2019] VSCA 123 at paragraph [69]
155In Allouche v Transport Accident Commission,[81] Judge P Ginnane considered that a plaintiff, who had been diagnosed with Post-Traumatic Stress Disorder and a Major Depressive Disorder of moderate intensity following the death of her son in a transport accident in which the plaintiff was not a passenger, had suffered a severe long-term mental or severe long-term behavioural disturbance or disorder. In that instance, the plaintiff was hypervigilant and emotionally withdrawn. She had long-term lower back pain. She had daily pre-occupations with her deceased son. She grieved for him and had dreams about him on three occasions. She had intrusive memories and flashbacks. She visited the cemetery weekly and became very emotional. Birthdays and anniversaries triggered severe distress. She attended to the necessities in life because she had to. She was less interested in housework. She was tearful, felt weak and lethargic, was forgetful and less organised. The plaintiff was referred to a psychiatrist and was prescribed anti-depressant medication.
[81] [2020] VCC 509
156The current case, in my view, lies somewhere between these two cases, although I consider it to be closer to Allouche.[82] Mrs Rye is constantly confronted with the impact and consequences of her husband’s accident. The ongoing trauma to her arising from her husband’s accident does not end.
[82]ibid
157While Mrs Rye’s diagnosis is of an Adjustment Disorder, as opposed to Post-Traumatic Stress Disorder or a Major Depressive Disorder, that is a label which is not determinative of the impairment consequences to her. Mrs Rye’s pain at the impact of her impairment is evident in her ongoing psychological treatment and reliance upon it. She does not take medication, but she receives regular psychological support, and the medical evidence is to the effect that had she chosen to take medication, it was certainly warranted. She has interrupted sleep and regular nightmares and flashbacks of the accident. She ruminates on the accident and that produces adverse consequences for her. She has had changes to her mood and temperament and difficulties in concentration and with her memory.
158Additionally, the consequences of her impairment have resulted in an increased workload on the farm as well as increased caring responsibilities. She feels less inclined to cook. She gardens less. Her social life has been impacted and she feels she is “surviving rather than living”. She cannot travel and has lost her ability to enjoy her retirement.
159Mrs Rye has gone from being a dynamic, efficient, and happy person, who successfully operated a café and then a delicatessen business for several years and was involved later in running a 90-acre sheep farm with her husband, to someone who now has an inability to multi-task, is forgetful and must take a pad around with her to write things down.
160The defendant pointed to what Mrs Rye has retained as an indicator that her impairment consequences were not severe. Nevertheless, it must not be forgotten that she is a stoical person. While it is acknowledged that Mrs Rye has retained some ability to work on, and manage, the farm, to maintain her home and garden, to cook, shop, drive and to socialise, she is “just existing”. It is evident that she is going through the motions each day, but that she derives little joy from her day-to-day life. What she has retained is only one part of the assessment.
161Similarly, in respect of her marriage. While it may be accepted that her marriage was not perfect before her husband’s transport accident, the circumstances now are starkly different. Her husband has now “changed markedly since his involvement in the subject transport accident”. Before the accident, Mrs Rye’s husband was “quite outgoing” and had a “good sense of humour”. He now has a significant brain injury, and she has had to try to adjust to that. Mrs Rye said, “to what Mark was before the accident and to see him now is heart breaking”. He is snappy, irritable, and grumpy. He is verbally and physically abusive towards her. She finds it difficult to talk to him and she has “learnt to keep quiet”. Their physical marital relationship is essentially non-existent. Mrs Rye has been deprived of any ability to repair her marital relationship of over fifty years. Her distress in discussing that loss with Dr Weissman was palpable.
162Having considered the constellation of consequences to Mrs Rye, and balancing, on the one hand, the extent to which I accept she has suffered a relevant psychological impairment, her other impairment consequences, together with her stoicism, against the extent to which she has been able to maintain her involvement in domestic duties and activities of daily living, socialising, and working on the farm, and taking account of the spectrum of the possible cases, I am satisfied that the nature and symptoms of the injury and the consequences of the injury are subjectively “severe” for Mrs Rye, and when assessed objectively, the mental or behavioural disturbance or disorder meets the requisite statutory test of “severe” when compared with the range or “spectrum” of comparable cases.
Conclusion
163I have reached the conclusion that, Mrs Rye was a truthful, credible, and reliable witness and her impairment consequences from the mental disorder from which she suffers meet the threshold of being “severe”.
164As a result, her application succeeds.
165I shall hear the parties in relation to the question of costs.
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