Sayer v Transport Accident Commission
[2016] VCC 1074
•29 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05874
| ELISE SAYER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2016 | |
DATE OF JUDGMENT: | 29 July 2016 | |
CASE MAY BE CITED AS: | Sayer v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1074 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychological disorder – whether consequences “severe” – unrelated intervening events both before and after the transport accident
Legislation Cited: Transport Accident Act 1986, s93(17)
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Williams Winter Pty Ltd |
| For the Defendant | Mr P Jens QC with Mr L Allan | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff, Ms Sayer, was involved in a frightening transport accident (“the accident”) on the 24 March 2010 when a vehicle she was driving left the highway near Katamatite after being struck by a truck. Her two grandchildren were in the car at the time. The car ran down an embankment and struck a number of trees.
2 She had physical injuries, including pain to the left side of her chest and general bruising. She developed a Post-Traumatic Stress Disorder with Depressed Mood, alternatively an Adjustment Disorder. This has led to a range of psychological symptoms.
3 Ms Sayer claims a range of domestic, social and recreational activities and pastimes have been affected. She claims the disorder has required extensive treatment from her general practitioner and a psychologist.
4 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on the 24 March 2010.
5 Ms Sayer claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the nature of a Post-Traumatic Stress Disorder, alternatively an Adjustment Disorder. The application is thus brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
6 Ms Sayer was the only witness called to give evidence and be cross-examined. In addition, her two affidavits and one of her former husband, and a range of treating and consulting medical reports were tended into evidence. I shall not refer to all of that material in the course of this judgement, but rather those parts of the evidence and reports which appear to me to be most relevant, and which I have relied upon in coming to the conclusions referred to later in this judgement. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Ms Sayer is now sixty-eight years of age and lives in Cobram. She was born in Eaglehawk and has had a somewhat difficult life. She receives the aged pension and a carer’s allowance for looking after her three grandsons. She worked in a range of factory jobs from an early age. Her father committed suicide in her presence when she was four. Her first husband, with whom she had a daughter, was abusive. She suffered some post-natal depression. She formed another relationship and had two more daughters. Her eldest daughter became drug and alcohol dependent. She began a relationship with Mr Woodward in 1992.
8 She returned to factory jobs and worked as a waitress in the Cobram area. She obtained a degree in sociology and underwent training in the welfare sector.
9 Because of her first daughter’s drug and alcohol issues, she applied for and obtained custody of that daughter’s three sons in 2003. The eldest was diagnosed with foetal alcohol syndrome and has required special assistance. She worked hard to provide her grandsons with a stable upbringing. This has not always been easy.
10 She had a range of physical issues before the accident, none of them particularly debilitating. She developed hypothyroidism, which was controlled with medication.
11 In 2007, her mother died. In the same year, her sister died. Both deaths had an impact upon her.
12 In 2008, she had a bout of severe abdominal pain and was taken to the emergency ward of the Goulburn Valley Hospital. She was diagnosed with a ruptured appendix and underwent emergency surgery. This led to peritonitis. She became critically ill.[1]
[1]Plaintiff’s Court Book (“PCB”) 45
13 Her relationship with Mr Woodward was up and down and finally broke down in 2009. They have remained friends. She formed a new relationship with another gentleman, with whom she currently lives. They share an interest in dogs.
14 From time to time, both before and since the accident, she has been in conflict with neighbours where she lived in Cobram. This led to complaints to her general practitioner on occasions, of stress. She was prescribed antidepressant medication, including Escitalopram and Citalopram.[2]
[2]PCB 56
15 There is reference in the clinical notes to a referral to a psychologist, Ms Bernadette Quinn. Ms Sayer could not recall that referral.
16 Again, according to the clinical notes, she was said, in 2008, to be suffering from depression and finding it difficult to cope with the events of life, including looking after her grandsons and difficulties in her various relationships. However, in late September 2008, she was said to be coping much better.[3]
[3]PCB 56
17 She had a hysterectomy in 2012 because of ovarian cysts. She has had surgery for a hernia.[4]
[4]Defendant’s Court Book (“DCB”) 20
18 Ms Sayer was cross-examined extensively by Mr Jens, Counsel for the defendant, about the effect upon her of these various issues in her life. She gave frank and truthful answers. I accept that while she has been buffeted by life and has had various difficult periods, nonetheless, at the time of the transport accident, she was in reasonable physical and psychological health and capable of looking after her grandsons, maintaining her house and pursuing a range of recreational and social pastimes. My view in that regard is reinforced by the opinions of Dr Epstein[5] and Dr Doherty,[6] that Ms Sayer was not suffering any diagnosable psychiatric condition prior to the accident.
[5]PCB 66
[6]DCB 20
19 She was also a keen bushwalker and would regularly go for long walks with her dogs including in national parks. She was a member of the Wilderness Society and participated in its activities. She enjoyed an involvement with various environmental campaigns with the Wilderness Society and animal welfare agencies. She attended protests and demonstrations.
The accident and its consequences
20 On 24 March 2010, Ms Sayer was driving her car along the Shepparton Highway near Katamatite. Two of her grandsons were in the car with her. She was passing a large water truck when that vehicle pulled out, striking her car around the front passenger door and forcing it off the road and down an embankment. The vehicle struck trees on the way down. One of her sons called out there was a fire. She did not lose consciousness but was stunned. Police attended the scene and, to her, appeared to take the side of the driver of the truck. Her vehicle was written off.
21 She was driven home by Mr Woodward, suffering from a headache, drowsiness and pain to the left side of the chest. She was stressed and shocked. She went to see Dr Sharon Hambly, a general practitioner from Finley, as her usual general practitioner, Dr Dumitrescu of Cobram, was away. Dr Hambly provided Ms Sayer with Panadeine Forte and told her to go home to rest.
22 Following the accident, Ms Sayer became increasingly anxious with headaches, nausea, vomiting and blurred vision. According to the report of Dr Hambly, Ms Sayer was very shaken and upset by the accident. She was having trouble getting to sleep. She was nervous in a car and emotionally fragile. Dr Hambly described Ms Sayer as a “really strong and resilient person”.[7]
[7]PCB 104
23 Dr Hambly noted Ms Sayer had to retire from her involvement in the Wilderness Society. She suffered intrusive thoughts and broke down if challenged. Antidepressant medication was prescribed and increased anxiety and episodes of panic were noted. Ms Sayer avoided journeys in a car. She became withdrawn and housebound and had a reduced involvement in social activities. She had lost motivation for domestic duties.[8]
[8]PCB 105
24 Ms Sayer commenced treatment with her current treating general practitioner, Dr Dumitrescu, some time in 2007.[9] Dr Dumitrescu referred her to a psychiatrist, Dr Erihana Ryan, in May 2011. Dr Ryan noted Ms Sayer became tired easily and felt burnt out. She was not able to cope with the needs of her adolescent grandsons. Dr Ryan said that Ms Sayer was able to cope reasonably well with life’s problems before the accident, but had developed features of Post-Traumatic Stress Disorder afterwards. She said Ms Sayer had developed an Adjustment Reaction with Depression and Anxiety. There was a loss of confidence and capacity to cope with life’s events. At the time, she was taking antidepressant medication. Dr Ryan suggested psychological treatment.[10]
[9]PCB 76
[10]PCB 58
25 According to Dr Dumitrescu, Ms Sayer is currently suffering a Post-Traumatic Stress Disorder and a Chronic Adjustment Disorder. She noted complaints of depression, anxiety, problems with short-term memory and poor judgement. Dr Dumitrescu noted difficulty with making decisions and occasional nightmares. Her condition fluctuated, at times feeling extremely affected and at other times managing quite well.[11] More recently, Dr Dumitrescu referred her to another psychiatrist, Dr Dutta.[12] Dr Dumitrescu concluded Ms Sayer has ongoing difficulties coping with stress and is extremely vulnerable to changes in her family life or relationships. She thought Ms Sayer would require long-term medication and counselling.[13]
[11]PCB 77
[12]There is no report from this practitioner
[13]PCB 77
26 Ms Sayer was referred to Ms Rachael Willis, clinical psychologist, in May 2011. Ms Willis treated her over a considerable period from that time and again, more recently, from 2015 to the present time.[14] Ms Willis noted there were other stressors in her life including a dispute with neighbours, looking after her grandsons, the relationship with her partner and her physical health problems.
[14]PCB 81
27 In her first report, Ms Willis diagnosed some symptoms of a Post-Traumatic Stress Disorder, but concluded Ms Sayer was suffering an Adjustment Disorder with Mixed Anxiety and Depression.[15] More recently, she diagnosed a Post-Traumatic Stress Disorder, attributable to the accident. She noted symptoms of cognition and mood change, intrusive thoughts, avoidance and episodes of arousal. She noted depression and anxiety.[16] She said Ms Sayer struggled on a daily basis with activity scheduling, planning and organisation. She had episodes of high anxiety, low mood, a loss of confidence, low energy, insomnia and fleeting suicidal thoughts. She thought Ms Sayer’s prognosis was fair to good.[17]
[15]PCB 82
[16]PCB 82
[17]PCB 83
28 According to Ms Sayer’s affidavit, she sees Dr Dumitrescu every three weeks or once a month. She continues to see Ms Willis. She complains of being stressed, anxious and depressed.[18] In June 2015, she had a “melt down”. She became overwhelmed with her life. She claims the following consequences of the accident:[19]
[18]PCB 23
[19]PCB 20
· She finds it difficult to leave her house.
· She becomes impatient with her grandsons and is less able to tolerate their behaviour.
· She no longer has the same involvement with the Wilderness Society. She finds it overwhelming to go to meetings or deal with the press. She no longer spends as much time in the bush as before.
· She suffers from poor memory and concentration and has difficulty in focusing on any activity which requires organisation or analysis.
· She no longer drives longer distances and is nervous when travelling in a car, particularly as a passenger.
· She has lost her positive attitude and zest for life. She is unmotivated, exhausted and emotionally vulnerable.
· According to the affidavit of Mr Woodward, she is a different person from before the accident. As a result, a conflict grew between them, she became emotional, short tempered and spoke constantly about the accident. She did not go out as much. All of this led to the breakdown of their relationship.
· She takes a range of medication including Cymbalta and Ativan.
· In the past, she has been able to deal with the difficulties that life has thrown up. Since the accident, she has not been able to cope in the same way, becomes easily emotional and breaks down.
29 In the course of cross examination, Ms Sayer was asked the following:
Q:“Is that right?---
A:Yes.
Q:And as I have already alluded to you have had a number of medical issues, both before the motor vehicle accident and after the motor vehicle accident, I suggest?---
A:Yes.
Q:And what I am suggesting to you is, that they don’t relate to the car accident …?---
A:I didn’t develop PTSD through normal everyday stresses, I developed it after a very unjust car accident that sent me - my life reeling, and there was a grave injustice done, and the other driver was totally dishonest and, yes, I did suffer stresses.
Q: I am not ...?---
A: But this one – not like this one.”[20]
[20]Transcript (“T”) – T35, L7
Consultant practitioners’ opinions
30 Ms Sayer was examined in 2013 by psychiatrist, Dr Michael Epstein. He provided two lengthy and comprehensive reports, the second after being provided with extensive clinical records from the general practitioners who treated Ms Sayer both before and after the accident.
31 He received complaints from Ms Sayer of difficulty with sleeping because of nightmares. She said she had flashbacks to the accident two to three times a week with intrusive thoughts and panic attacks. She was anxious when a passenger in a car and generally concerned for the safety of her family. She complained of regular headaches, but was able to do most of the housework, cooking, laundry and some gardening. She said she was rarely happy and felt flat most of the time. Her self-esteem and confidence had dropped. She felt bored, restless, frustrated, lonely, isolated, irritable, exhausted, agitated and unmotivated. She became quite depressed for one or two days during the week, with feelings of worthlessness and helplessness.[21]
[21]PCB 49
32 Dr Epstein referred to the accident as “frightening”.[22] He thought she had developed a Post-Traumatic Stress Disorder characterised by recurrent intrusive thoughts, distress and increased concerns about her own safety and the safety of her family. He noted panic attacks with episodes of collapse. He said there had been some improvement over the last twelve months.[23]
[22]PCB 51
[23]PCB 51
33 In his report of 2014, having considered all of the clinical notes, he said there had been a number of other factors in her life which significantly contributed to her level of distress. However, although Ms Sayer had episodes of fatigue and low mood, she reported that in September 2008 she was coping and feeling much better within herself. He therefore concluded that Ms Sayer did not have a pre-accident psychiatric condition. On that basis, Dr Epstein thought there was no basis to apportion any part of her current psychiatric condition to the issues in her life before the accident.[24]
[24]PCB 66
34 Dr George Wahr, psychiatrist, examined Ms Sayer in March 2016. He received a history that Ms Sayer was edgy, unable to cope with stress, finding herself going to pieces over small things and finding it difficult to leave her pets. She reported intensive nightmares with depression and anxiety. He said two thirds of that disorder was related to the accident, and one third to other unrelated stresses in her life.[25] He concluded she was suffering a Post-Traumatic Stress Disorder. He thought she could not work because of the condition and that she should not drive a car.[26]
[25]PCB 101
[26]PCB 102
35 Ms Sayer was examined by Dr Doherty, psychiatrist, in June 2016. He received a history of the various trauma in her life before the accident, to which I have referred. He noted that at the time, she was taking a range of medication including the following:
· Ativan (at night)
· Oroxine (daily)
· Prozac (daily)
· Diabex (twice a day).[27]
[27]DCB 22
36 Dr Doherty received a history that she could not cope after the accident and feared that she could have killed her grandsons. For six months she did not want to leave the house. She slept most of the time and lost interest in her grandchildren. While six months after the accident she had pulled herself together and was able to better get on with life, in June 2015, she had a “total meltdown” and went back to her psychologist, Ms Willis. She also saw a psychiatrist, Dr Dutta. She complained of difficulties with sleep, headaches and a limited capacity to drive. She said she was able to do most of the household chores. She said sometimes her mood was okay, but at other times she broke down. She lacked motivation and energy. At times she was “terribly anxious” and occasionally had panic episodes.
37 Dr Doherty concluded she was suffering a Mild Adjustment Disorder with Depressed and Anxious Mood, with some initial features of traumatisation. He said that with time, the clinical symptoms had largely remitted. He disagreed with the diagnosis of Post-Traumatic Stress Disorder. He said the symptoms of the Adjustment Disorder were only of mild intensity. He thought the prognosis was favourable, with further room for improvement.[28] He said she had not been suffering any psychological condition before the accident, although was psychologically vulnerable.[29]
[28]DCB 27
[29]DCB 29
Conclusions
38 I found Ms Sayer a comprehensively honest and sincere witness, giving a fair account of the trauma of the accident and the psychological symptoms which she has suffered since. I detected no element of exaggeration in the course of cross examination. She answered questions responsively and made admissions I would expect of an honest witness. I am thus able to accept her affidavits and the histories to the various doctors as to the effect upon her of the accident.
39 It is clear Ms Sayer suffered a range of traumatic events in her life before the accident. She suffered the loss of relatives, physical illnesses and a demanding and stressful period when she obtained custody of her grandsons and endeavoured to help them through what was a difficult adolescent journey. She also had various disputes with her neighbours. I am satisfied that she suffered stress and anxiety as a result of these incidents and issues, required consultation and treatment with her general practitioners from time to time and probably psychological counselling. She took antidepressants now and again. Nonetheless, I assess her as a person prepared to meet life’s difficulties and to accept her lot without complaint. I am satisfied that by March 2010 she was in reasonable physical and psychological health and able to perform, without difficulty, a range of domestic tasks, raise her grandsons and enjoy her involvement as an activist in the Wilderness Society.
40 I am satisfied the accident was a very traumatic experience for her. I accept her evidence that she thinks about what occurred regularly, in particular that she could have killed her grandsons. I am satisfied that she has suffered nightmares and flashbacks to the accident on a regular basis. I am satisfied that before the accident, she was outgoing, a keen bushwalker, active and energetic. This changed dramatically after the accident.
41 I accept that since, she has become somewhat reclusive, has given up her involvement in the Wilderness Society and animal welfare. I accept that she has become a nervous passenger and avoids driving long distances. Given the affidavit of Mr Woodward, I accept that the change brought upon her had a detrimental effect on their relationship. I accept that she has become unmotivated, exhausted and emotionally vulnerable, and that many of life’s satisfying activities are now lost to her.
42 All of this has required significant treatment, mostly from her general practitioner, Dr Dumitrescu, and the psychologist, Ms Willis.
43 I prefer the opinion of her treating practitioners, in particular Dr Dumitrescu and Ms Willis, that she has suffered a Post-Traumatic Stress Disorder. They are the ones who have seen her more regularly than other practitioners. I do not accept the opinion of Dr Doherty that her symptoms are only mild. While Dr Doherty thought the prospect for improvement into the future was significant, I prefer the opinion of Dr Dumitrescu that it is likely she will require psychological support, counselling, and antidepressant medication into the foreseeable future.
44 While Ms Sayer does not complain of some symptoms of psychological illness that are recognised at the more extreme range, including suicidal ideation, periods in psychiatric hospitals and psychotic symptoms, I am nonetheless satisfied that the trauma of the accident has had a very significant effect upon her life. I accept her description that it has sent her life “reeling”.
45 She is now less able to cope with the various stressors in her life. She becomes upset more easily.
46 In these circumstances, I am satisfied that the psychological disorder, and the consequences, do meet the statutory test of “severe”. In those circumstances, I will grant leave to bring proceedings and make consequent orders.
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