Sakiri v TAC
[2012] VCC 395
•17 April 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00926
| SUZEN SAKIRI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February, 1 and 2 March 2012 | |
DATE OF JUDGMENT: | 17 April 2012 (Revised) | |
CASE MAY BE CITED AS: | Sakiri v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 395 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – consequences of injury – physical and non-physical injuries – whether the consequences of injuries were at least very considerable
LEGISLATION CITED – Transport Accident Act 1986
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2001) 1 VR 79
JUDGMENT – Leave granted to the plaintiff to commence a proceeding claiming damages in respect injury suffered in a transport accident.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh S C with Ms M Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr S Smith with Ms S Manova | Hall & Wilcox |
HIS HONOUR:
1 On 17 August 2006, a motor vehicle driven by Suzen Sakiri was involved in a collision with another vehicle (“the collision”). She alleges that she suffered injuries to her lumbar and cervical spine and in addition, has suffered a psychiatric and/or psychological disorder.
2 She seeks the leave of the Court to issue a proceeding to recover damages in respect of those injuries.
3 Her right to do so is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Ms Sakiri must satisfy the Court that her injuries are serious.[1]
[1]Section 93(6)
4 The term “serious injury” is defined in s.93(17) of the Act (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function; or
(b) …
(c)Severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) …”
5 In order to succeed in her application, Ms Sakiri must satisfy the Court that the consequences of her injury are serious. In order that an injury be considered to be serious:
(a) The consequences of the injury must be serious to her;
(b)Those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)The question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 Ms Sakiri alleges that the consequences of both her physical and non-physical injuries satisfy the threshold test as being at least very considerable. The defendant denies this is so.
7 The matters to be determined in this application are:
(a)What is the nature of physical and non-physical injuries suffered by Ms Sakiri in the collision?
(c)What are the consequences for her of her physical and/or non-physical injuries?
(e)Whether her physical injuries and/or non-physical injuries are “serious” injuries as defined?
Background
8 Ms Sakiri is thirty-one years of age. She is of Macedonian descent but was born in Australia. She was educated to and completed Year 12.
9 Soon after leaving school, she commenced employment with Safeway. After some years, she was promoted to Customer Service Supervisor and was working in that capacity as at the date of the collision.
10 In 2002, she had travelled with her parents to Macedonia, where she was introduced to a man to whom she was almost immediately married. She describes the marriage as, essentially, an arranged marriage. Her parents had expected her to marry a man of Macedonian descent. After the marriage, she returned from Macedonia to Melbourne where she continued to work for Woolworths. Her new husband did not accompany her. Steps were taken by him to obtain an appropriate visa. He arrived in Australia in December 2004. She did not immediately reside with him. They resided together for approximately three weeks in April 2005. During that brief period, Ms Sakiri was quite seriously assaulted by her brother, apparently as a consequence of complaints made by her husband to him concerning her. At the end of that period her husband deserted her.
11 She later commenced a relationship with a man of Italian descent in Melbourne. The relationship lasted for approximately three years. She described that relationship to Dr Whitehouse as being one which was off and on and which involved arguments due to religious and cultural issues. That relationship ended in 2008.
12 In the years prior to the collision, she had suffered occasional low back pain. In January 2003, she suffered a low back strain and consulted her general practitioner. She had some days off work but returned to her normal duties. She did not appear to have had any further time off work as a consequence of that strain.
13 She did not suffer from any upper back or neck problems prior to the collision.
14 In the years leading up to the collision, she had periods of time off work for various other ailments, none of which appear to have been significant.
Aftermath of Collision
15 Immediately following the collision, she felt discomfort in her low back and consulted her general practitioner, Dr Bond, on that day. He arranged for x‑rays which showed no abnormality.
16 She had two scheduled days off work immediately following the collision and then returned to work. She experienced discomfort in her low back, shoulders and neck. It got worse over the following days. She had difficulty completing her shifts, which involved a good deal of standing. She was unable to complete some shifts.
17 Approximately a fortnight after the collision, she consulted Dr Bond, who provided her with a certificate restricting her to light work and reduced hours. Upon presentation of the certificate to Woolworths, she was advised by her employer that there were no light duties available and that she was not to return to work until she had fully recovered. She has not worked since that time.
18 She was treated by an osteopath for a period of time and also underwent physiotherapy. She undertook a Pilates exercise program.
19 She states that she experienced neck pain, shoulder pain and low back pain, with pain also referred into her hips and legs. She was limited in activities she could undertake as attempts at her usual activities gave rise to an increase in pain. Such activities included housework, cooking, washing dishes, operating a computer and sitting down. Her symptoms were exacerbated by lifting activities, walking, sitting, and standing. She developed a depressive illness.
20 In late 2008, she underwent a pain management course with Dr Terrence Lim. She was assessed by a clinical psychologist, Ms Stegar, who she saw on a number of occasions. She was prescribed anti-depressant medication which she has continued with to the present time.
21 She has undergone counselling with a psychiatrist, Dr Bethany Whitehouse.
Diagnoses of Injuries
22 Ms Sakiri alleges that she has suffered both physical injuries and non-physical injuries. I shall deal with these separately as far as possible.
23 In respect of the physical injuries, she alleges that she has suffered an organic injury to her lumbar and cervical spine.
24 Dr Allan Bond has been Ms Sakiri’s general practitioner for many years before the collision and since. In a letter to the Transport Accident Commission (“TAC”) dated 3 September 2009,[3] Dr Bond reported that the collision had resulted in multiple soft tissue injuries, including to her lower back and right hip. He stated that there was no reported history of previous injury to these areas. He considered that her depression had deteriorated, culminating in an overdose of prescription medication. Specifically, he stated that the increased depression and episodes of suicidal ideas have resulted in her being not fit for any duties. That is, at that time, it was her depressive illness that prevented her from working rather than any specific physical injury. There was no report tendered from Dr Bond since September 2009, some three and a half years ago.
[3]Plaintiff’s Court Book (“PCB”) 100
25 A brief report from Ms Kristine Miles, a physiotherapist, dated 3 July 2008, was tendered. It contained no diagnosis of injury and few details of treatment. I note however, that she states that a proposed functional restoration program should address psychological factors as well as physical. She noted that Ms Sakiri had been doing a functional restoration program over the previous nine months with little overall benefit. She considered that Ms Sakiri had shown improvement but psychologically she had been deteriorating recently, along with her physical state, concurrently.[4]
[4]PCB 88
26 In September 2008, Ms Sakiri was referred for a rehabilitation program with Dr Terrence Lim, a consultant in rehabilitation and pain medicine. On 11 September 2008, he reported that her pain was due to a combination of three conditions:
(a)Mechanical back pain due to an increase in anterior pelvic tilt, causing a consequent increase in lumbar lordosis, resulting in a persistent hyperextension moment (sic) and mechanical back pain;
(b)Myopathic (or muscular) pain, mainly affecting the paraspinal muscles from overuse to maintain this posture;
(c)The development of central sensitisation which was amplifying and perpetuating her chronic pain condition. He thought that she could do extremely well by engaging in a pain rehabilitation program.[5]
[5]PCB 89
27 On 31 August 2010, Dr Lim noted that Ms Sakiri was well entrenched in a chronic pain syndrome where her whole life was totally focussed on and dominated by her pain that left her dependent on others, demoralised and disabled. She was still focussed on external interventions to “fix” her. Dr Lim had spent much time attempting to demonstrate suffering chronic pain meant using the “getting on with life” strategy to manage her pain.[6]
[6]Defendant’s Court Book (“DCB”) 155
28 There was no other evidence from any treating practitioner regarding her physical condition. I note that in the period since the collision (some four and a half years), Ms Sakiri has not been referred to any orthopaedic surgeon, neurosurgeon or rheumatologist.
29 She has not been referred for any CT or MRI scan. Plain x-rays of her lumbar spine carried out on 21 August 2006 showed no significant abnormality. She does not appear to have had any radiological investigation of her cervical spine at all.
30 Ms Sakiri has been seen by a number of specialists on a medico-legal basis. In particular, she relies on the opinion of Mr Kevin King, orthopaedic surgeon, who saw her twice, in May 2009 and November 2011. He took a history that she had been thrown around violently within the vehicle at the time of the collision and considered it reasonable to assume that she did sustain some damage to cervical and thoracolumbar discs and associated ligamentous structures at the time of the collision. He considered that these soft tissue injuries would adequately explain the onset of neck pain and headache and also of low back pain radiating into the right lower limb. He described these as chronic symptoms of neck and back pain of moderate severity, severe enough to prevent her returning to her pre-collision employment with Safeway. He considered that those symptoms were severe enough to prevent her returning to any other such job involving the same degree of standing, walking and intermittent lifting.
31 In November 2011, Mr King noted mild to moderate limitation of neck and low back movements. Again, he considered that the collision was likely to have caused damage to the cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels, adequately explaining the onset and persistence of symptoms. Accepting her statement that she had never had any problems with neck or back before, and further accepting her statement that she has had persistent neck and back pain ever since, Mr King attributed all of her persistent problems to the effects of the collision.
32 It is plain from Mr King’s report that his opinion is largely based on Ms Sakiri’s history of symptoms as provided by her to him, rather than on any objective indications of injury.
33 Dr Chris Baker, a specialist in occupation medicine, saw Ms Sakiri twice, in January and November 2007. On the latter occasion, he considered that she was suffering from minor soft tissue injuries of the lumbosacral region with some referred symptoms into her right leg. I note, however, that there is no mention in any affidavit material or in histories provided to other doctors of any such referred right leg pain. He noted that she did not consider that she was capable of working but had been able to travel overseas. He considered that she had a work capacity of 70 to 80 per cent. He thought from a physical perspective, she should have returned to work undertaking pre-injury employment by the end of 2007.
34 In January 2008, he was shown video film taken of Ms Sakiri in December 2007. This film was not shown to Ms Sakiri in cross-examination and not tendered in evidence. I do not consider that I should place any weight on the opinions of Dr Baker insofar as they may have been based in whole or in part on the film shown to him. It was conceded by the parties that the film had been provided to Ms Sakiri’s solicitors some months ago and that either party could have shown the film to the Court. Neither party did. The parties were in agreement that it can therefore be inferred that the film was not such as would have advanced the case of either party.
35 Dr Tony Kostos, rheumatologist, examined Ms Sakiri in April 2010. He considered that she had a Chronic Pain Syndrome with features suggestive of fibromyalgia. He was of the view that she has never had a significant musculoskeletal injury.
36 Dr Kostos did not define the term “fibromyalgia” but I understand that term to mean diffuse pain and tenderness in joints, muscles, tendons and other soft tissues. In his report of November 2011, Mr Kevin King described fibromyalgia as being a vague term which, if broken down into its derivatives, means “pain arising from fibrous and muscle tissue” – although the term was used often clinically, it is not an exact diagnosis and is not based upon scientific assessment of any underlying pathological change.[7]
[7]PCB 76
37 Dr Kostos considered that Ms Sakiri’s prognosis was poor. Because she was unaware of the true nature of her problems, her condition does impact on occupational and daily living activities. He compared his findings with the findings on examination three years earlier by Dr Baker set out in his report of January 2007, and in particular, Dr Baker’s finding that she had a good range of movement of her neck and thoracolumbar spine at that earlier time. Dr Kostos had found significant restrictions of such movements associated with pain. He thought it quite apparent that there had been a significant deterioration in her condition since then and that this could not be explained on the basis of physical problems. He was of the view that the term “soft tissue injury” as used by Dr Baker and Dr Bond, was a fictitious condition which did not exist. Mr King took issue with this, stating that soft tissue injury covered an extremely broad field from generalised bruising to major myocardial infarct. He did not consider that the term “soft tissue injury” was a precise diagnosis, but considered it no more vague than the term “fibromyalgia”.
38 Dr Kostos was concerned that Ms Sakiri had not been reviewed by any specialist, in particular by a rheumatologist, in nearly four years since the collision. He reported to the defendant that such a review was essential. Nevertheless, no such review was ever arranged by either party.
39 I consider that the opinion expressed by Dr Kostos is that whatever problems Ms Sakiri is experiencing, they are not musculoskeletal or physical problems. He has diagnosed a Chronic P{ain Syndrome which I understand to be a non-organic condition.
40 On the basis of the evidence before me, I conclude that it is likely that Ms Sakiri did suffer a soft tissue injury to her neck and low back in the collision. The precise nature and whereabouts of that injury are not established. I shall consider the consequences of it later in these reasons.
41 Insofar as Ms Sakiri relies upon non-physical or non-organic injury, there is uncontested evidence that she has suffered from considerable depression since the collision.
42 Her general practitioner, Dr Bond, reported in September 2009 that her depression had deteriorated since his previous report, culminating in an overdose of prescription medication. No previous report was tendered from Dr Bond making any reference to depression.
43 He considered that, at that time, by reason of increased depression and suicidal ideation, she was unfit for work.
44 In December 2008, Ms Sakiri was seen by Ms Carmen Steger, clinical psychologist, as part of a multi-disciplinary team assessment in order to determine her suitability for inclusion into a pain rehabilitation program. The assessment had been completed at the request of Dr Terrence Lim. Test results suggested that she was “extremely severely depressed” and “moderately stressed’, although her anxiety scores were within normal limits.[8] Her overall test scores were described as average when compared with other chronic pain patients. It was considered that Ms Sakiri was well motivated to undertake the pain rehabilitation program.
[8]PCB 91
45 In May 1999, Ms Sakiri was referred by Dr Lim to Dr Bethany Whitehouse, psychiatrist. She has continued to see her until the present time save for the last few months when Dr Whitehouse has been absent on maternity leave. It is anticipated that such treatment will continue in the future. Reports of Dr Whitehouse dated 13 July 2010 and 16 January 2012 were tendered. In addition, Dr Whitehouse gave oral evidence and was cross-examined. Dr Whitehouse considered the plaintiff to be suffering from a Major Depressive Disorder, a Pain Disorder associated with both psychological factors and physical factors (based upon Dr Lim’s diagnosis of central sensitisation, myopathic pain and mechanical back pain), and an eating disorder. She was of the view that the collision had caused chronic pain, loss of employment and loss of social and pleasurable activities, which had all contributed to episodes of depression.
46 Dr Whitehouse’s views expressed in her reports were based, in part, on a history provided to her by Ms Sakiri that she had had a happy life prior to the collision, no contrary events being described to her. The evidence discloses that Ms Sakiri’s life prior to the collision was not entirely happy or stress free. As previously described, her first marriage was unusual, to say the least, lasting in reality for only a few weeks before her husband deserted her. Further, during the short time in which they cohabitated, Ms Sakiri was quite severely physically assaulted by her own brother, apparently as a result of complaints made by her husband to her brother concerning Ms Sakiri’s behaviour.[9] She recovered from injuries caused by punching and kicking.
[9]T 174
47 Dr Whitehouse knew nothing about that background prior to being cross-examined. However, she did not consider it to have been of great importance, given that Ms Sakiri was able to carry on with her life and maintain functioning. In particular, she was able to hold down a job in the months that followed. She continued her relationship with her family, including her brother, up to the present time. Dr Whitehouse considered that if such incidents were to impact upon depression, one would assume that depression would develop closely thereafter. Alternatively, the incidents might have been seen as one of a number of stressors and have contributed in that way.[10]
[10]T 175
48 Dr Whitehouse was less optimistic of a full recovery than she had previously been.[11] She considered that chronic pain was something that did not get cured, but people often learned to live with it. She had provided Ms Sakiri with advice that she should increase her activities, physically and socially, and that this would assist her condition. She thought that Ms Sakiri had been trying to increase those activities, had made several attempts to do more, but had not succeeded so far.[12] She was cross-examined at length about the likelihood of improvement or deterioration of her depressive condition in the future. Dr Whitehouse was essentially of the view that this could not be forecast with any accuracy. She could not say that any particular outcome was more likely than not.[13]
[11]T 171
[12]T 171
[13]T 172
49 Dr Whitehouse was of the view that depression can influence and magnify a person’s experience of pain. Depression can affect their perception by entrenching their view that they are limited by their pain. Depression can make all aspects of life seem more hopeless or more negative.
50 Dr Whitehouse thought that Ms Sakiri’s depression had made it much more difficult for her to deal with stressful life events. She thought there was a strong relationship between her depression and her lack of motivation to get out and do more in her life. Lack of motivation was, she said, a very well known integral part of depression and that Ms Sakiri’s motivation definitely fluctuated with her mood. She was asked as to how things were likely to progress in the short or foreseeable future. She said:
“Well, I suspect things will go on as they are for a while. But really it depends, you know, also on what happens in her life.”[14]
[14]T 178
51 Dr Kaplan, psychiatrist, examined Ms Sakiri at the request of her solicitors in March 2009 and January 2012. In 2009, he considered she suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered her symptoms of Depression and Anxiety were directly related to her physical injuries, her chronic pain, her inability to work and other limitations imposed by her pain. He thought her psychiatric condition would be determined by the outcome of her physical condition and that she was likely to remain prone to Depression and Anxiety so long as her pain persists.
52 In January 2012 Dr Kaplan considered that her Depression had probably intensified over the previous three years as a result of the failure of her physical condition to improve and an increase in desperation and fears for the future.[15] He thought her recently failed marriage had also aggravated her Depression. He considered that she experienced some symptoms of Post-Traumatic Stress Disorder with flashbacks, intrusive thoughts and recurring nightmares in relation to her accident. He thought her psychiatric condition had had a major impact upon her social and recreational activities and a major impact upon her quality of life.
[15]PCB 84
53 In August 2011, Mr Sandy Aggarwal, occupational therapist, was of the view that Ms Sakiri suffered from a Chronic Pain Syndrome and Adjustment Disorder. In addition he thought she had suffered from mild symptoms of Depression and loss of self esteem and self confidence.[16]
[16]PCB 71-72
54 In March 2010, Dr John King, psychiatrist, saw Ms Sakiri at the request of the defendant. He considered she had a chronic Post-Traumatic Stress Disorder and an Adjustment Disorder with Depressed Mood. He gained the impression that, as time went by, Ms Sakiri’s psychiatric difficulties appeared to be increasing and that she was further from returning to work than before.[17]
[17]DCB 25
55 Associate Professor George Mendelson, psychiatrist, saw Ms Sakiri at the request of the defendant’s solicitor in September 2011. After perusal of available reports and clinical records, he concluded that there was no evidence that Ms Sakiri had suffered a Post-Traumatic Stress Disorder.[18] He considered that she did have an Adjustment Disorder with Depressed Mood secondary to complaints of widespread pain and restriction of activities. Professor Mendelson considered that if it was accepted that she sustained physical injuries at the time of the collision that were causing her current symptoms, then it would follow that her emotional symptoms and her psychiatric condition were secondary to the physical condition, albeit aggravated by events in her personal life.[19] He anticipated that, especially in view of her young age, the finalisation of her of her claim would have a beneficial effect on her rate of improvement, subject to any evidence of organic abnormality attributable to the collision.[20]
[18]DCB 39
[19]DCB 40
[20]DCB 41
56 Professor Mendelson did not accept that the concept of “central sensitisation”, as described by Dr Lim, was relevant to Ms Sakiri’s case, describing it as merely speculative.[21]
[21]DCB 37-8
57 On all of the evidence, I accept that Ms Sakiri has suffered an Adjustment Disorder with Depression. I am not satisfied the evidence establishes a Post-Traumatic Stress Disorder. I find that her condition has likely been triggered by the physical soft tissue injury suffered by her in the collision.
Consequences of Injury
58 I am satisfied that Ms Sakiri suffered a soft tissue injury in the collision and suffered symptoms of pain on a physical basis. Those symptoms were likely to have been of genuine concern to her. However, I am not satisfied that Ms Sakiri has discharged the onus of proving that the consequences of her physical injury can fairly be described as more than significant or marked and as being at least very considerable. I accept the defendant’s submission that there is little if any evidence that the physical injury itself is likely to have caused ongoing consequences that would satisfy the threshold test. This is not to say that Ms Sakiri does not subjectively experience symptoms of pain in her neck and back. However, I am not satisfied that those consequences have an organic basis. I am satisfied that those symptoms are a product of, or are significantly exacerbated or magnified by, her depressive illness.
59 I am satisfied that Ms Sakiri has suffered and continues to suffer from a severe and permanent depressive condition that falls within part (c) of the definition of “serious injury” in s.93(17) of the Act, in that it is long term and severe.
60 I place greater weight on the evidence of Dr Whitehead, who has seen Ms Sakiri on numerous occasions over more than two and a half years from May 2009. I consider that she enjoys an advantage over those practitioners who have only had the opportunity to examine her on one or two occasions.
61 I accept that:
(a) Ms Sakiri has suffered from a Major Depressive Disorder associated with a Pain Disorder;
(b) She has suffered from an eating disorder with a failure to control her weight;
(c) She has engaged in recurrent self harm and has attempted suicide by overdosing on medication;
(d) She has required anti-depressant medication for an extended period and is likely to require such medication in the foreseeable future;
(e) After more than two years of psychiatric treatment, she remains at risk of deterioration in the event of ceasing anti-depressant medication or in the context of further stressors;
(f) She requires ongoing psychological and/or psychiatric treatment;
(g) She experiences recurring flashbacks, intrusive thoughts and nightmares in relation to the collision;
(h) She experiences a phobic anxiety with regard to trams and car travel;
(i) Whilst it is possible that she may improve to the point where she could attempt a return to employment, I consider that this is, at best, a possibility rather than a probability. Accordingly, she has suffered from a significant loss of income for some six years and that this is likely to continue in the foreseeable future;
(j) I accept that as a consequence of her non-organic injury, she is unable to work and to enjoy a normal recreational and social life.
62 On the basis of the above-mentioned findings, I consider that the consequences of Ms Sakiri’s depressive illness are severe and long-term.
63 Counsel for the defendant submitted that I should not accept Ms Sakiri as a reliable witness. I do not accept that submission. I consider that, whilst there were some inconsistencies with regard to her evidence concerning earlier taxation returns, these were not a result of any intention to mislead the Court but resulted from the fact that she has little experience with such documents and left such matters to her brother. I accept that Ms Sakiri attempted provide her evidence honestly and did not attempt to mislead the Court.
64 Unlike a case governed by the provisions of s.134AB of the Accident Compensation Act, in this application, a serious injury defined by part (a) of the definition in s.93(17) could have its seriousness measured in part by a mental response to a physical impairment.[22] I have found that the soft tissue injuries to her neck and back have not produced physical consequences that could fairly be described as being more than considerable. However, I do consider that it is probable that her depressive illness is secondary to or a response to that physical injury and it is that condition that I consider can be fairly described as being severe and long-term. I am satisfied that the collision materially contributed to her depressive illness.
[22]Richards v Wylie (2000) 1 VR 79 at paragraphs [24] to [29]
Conclusion
65 For the reasons expressed above, I am satisfied that Ms Sakiri has suffered a “serious injury” as defined as a consequence of a transport accident which occurred on or about 17 August 2006.
66 Accordingly, pursuant to s.93(4)(d) of the Act, there will be leave for Ms Sakiri to bring proceedings for the recovery of damages in respect of that injury.
67 I shall hear the parties with regard to costs.
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