Siomou v Transport Accident Commission
[2022] VCC 1509
•13 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No.CI-21-02550
| MARIA SIOMOU | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2022 | |
DATE OF JUDGMENT: | 13 September 2022 | |
CASE MAY BE CITED AS: | Siomou v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1509 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric injury – interrelationship of physical and psychiatric injury – Richards v Wylie
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Jovceva v Transport Accident Commission [2019] VSCA 105; Transport Accident Commission (TAC) v Kamel [2011] VSCA 110; Transport Accident Commission v Katanas (2017) 262 CLR 550; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr B Cooper | Shine Lawyers |
| For the Defendant | Mr J Batten | Lander & Rogers |
HER HONOUR:
1On 3 November 2017, Maria Siomou was travelling as a passenger in a car driven by her partner, Paul Ryan. Also in the car were Ms Siomou’s seven-year-old son, Dimitri; Mr Ryan’s daughter; and Ms Siomou’s three step-grandchildren. A car approaching from the opposite direction veered into the path of their car and there was a head-on collision. Police and ambulance were called and the driver of the other vehicle was taken to the hospital with two broken legs. After Ms Siomou was assessed by paramedics, Ms Siomou left in a taxi for home.[1]
[1] First affidavit, paragraph [12] at Plaintiff’s Amended Court Book (“PACB”) 3; PACB 50
2Ms Siomou returned to work a couple of days later, despite suffering ongoing neck, back and hip pain. She had what she describes as a “breakdown”[2] or “total clock-out”[3] at work. She then took six weeks off and began attending a psychologist, Ms Judye Margetts, who diagnosed her with Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder with Anxiety and Panic.
[2] First affidavit, paragraph [25] at PACB 5
[3] Transcript (“T”) 12, Line/s (“L”) 6
3In around January 2018, Ms Siomou returned to work as a regional assessment officer with her then employer, Melbourne City Council, on a reduced hours return-to-work plan. She says she left this position in June 2018 because the role required a lot of driving, which she found psychologically difficult. Two weeks later, she started in a new full-time role as a home packages case manager for Fronditha.
4Since that time, Ms Siomou has worked in a few different roles, but has been almost continuously in full-time employment. Her current role as a social connections team leader with Moreland City Council is almost identical to the one she performed prior to the accident, only higher paying. The role largely permits her to work from home. However, at least once a week, she must drive into her place of employment, which is a one-hour-and-forty-minute drive. She has never been hospitalised for any mental or physical injuries arising out of the accident. She is able to drive, grocery shop, engage in self-care activities and perform housework.
5The critical question in this proceeding is whether, despite Ms Siomou’s capacity to fulfil the basic economic functions of a member of society, Ms Siomou may, nevertheless, be suffering a severe long-term mental or behavioural disorder and disturbance within the meaning of paragraph (c) of the definition of “serious injury” in s93(17) of the Transport Accident Act 1986 (“the Act”).
6A subsidiary question is the extent to which the consequences relied upon by Ms Siomou fall to be considered under paragraph (c) of the definition of “serious injury”, rather than paragraph (a).
Credibility and reliability of lay witnesses
7Affidavits were tendered in evidence from Ms Siomou; from her ex-partner, Paul Ryan; and from a friend, Evangelia Kyropoulou.
8Senior Counsel for Ms Siomou submitted that Ms Siomou was clearly a witness of credit and that I should accept her evidence. Counsel for the defendant accepted that Ms Siomou had not engaged in any language that was evasive, unimpressive or embellishing. He did not submit I should find that Ms Siomou was not an honest witness. He did, however, raise a concern that Ms Siomou may have concealed the fact that she had been hospitalised for anaemia in November 2021.
9Ms Siomou was a very impressive witness. She was visibly shaking and tearful at the commencement of her evidence. Her anxiety levels appeared to decrease as the questioning continued, but she remained very distressed throughout her oral evidence and, at times, became overwhelmed with emotion. She became particularly distressed whenever questioning turned to her relationship with her son and her capacity to care for him.
10Notwithstanding her distressed emotional state, she listened to the questions asked of her carefully and provided straightforward and detailed answers. She demonstrated good recall, at times correcting or querying factual inaccuracies in the questions answered of her. She made appropriate concessions in relation to her current capacities and also in relation to any inaccuracies in her evidence. She was frank and matter of fact, while also speaking very eloquently of the impact of the accident on her life. I detected no melodrama or performativity in the delivery of her evidence.
11In relation to the concern raised by counsel for the defendant, that Ms Siomou may have concealed a hospitalisation for anaemia in November 2021, although this was not referred to in her affidavit evidence, Ms Siomou in fact disclosed this hospitalisation to medico-legal psychiatrist, Dr David Weissman, shortly after it occurred.[4] I do not accept that there has been any deliberate concealing of relevant information.
[4] APCB 87
12I am satisfied that Ms Siomou was an entirely honest and reliable witness and I accept her evidence in its entirety.
13Mr Ryan was the driver of the vehicle at the time of the accident and Ms Siomou’s then de facto partner. Mr Ryan and Ms Siomou are no longer in a romantic relationship, but, since January 2022, Ms Siomou has lived with him at his farm in Kithbrook, on a platonic basis. She describes him as her best friend. I accept Mr Ryan’s uncontested evidence, which provides useful insight into the changes in Ms Siomou’s demeanour and emotional state since the accident.
14Ms Kyropoulou is a close friend of Ms Siomou. She has not seen Ms Siomou in person for over a year and a half, although she has maintained regular contact via Zoom and telephone. In that context, some of her evidence as to Ms Siomou’s capacities must be based upon Ms Siomou’s self-reports, rather than direct observation. This evidence should not be viewed as bolstering Ms Siomou’s self-reports, although, given I have found Ms Siomou was an honest witness, this is not a particular concern. Ms Kyropoulou’s evidence also provides a useful perspective on the changes in Ms Siomou’s demeanour and emotional state since the accident. Subject to treating evidence based on Ms Siomou’s self-reports with some caution, I accept Ms Kyropoulou’s uncontested evidence.
Findings of fact
15Given my findings in relation to the credibility and reliability of the lay witnesses, I make the following findings of fact.
16Before the accident, Ms Siomou was an outgoing, “social butterfly”,[5] who was “full of life”[6] and who enjoyed spending time with different groups of people, and entertaining and cooking for friends at her home. She took pride in keeping her house in an immaculate state. She enjoyed taking vocal lessons, as well as kick-boxing classes with her son. Her role at Melbourne City Council required her to perform home assessments of low-income housing, which required a significant amount of driving.
[5] Affidavit of Evangelia Lydia Kyropoulous, paragraph [6] at APCB 30
[6] Affidavit of Paul Gerard Ryan, paragraph [7] at APCB 35
17After the accident, Ms Siomou had to change employment in order to find a role which required less driving. She was able to do so, and has successfully maintained full-time employment since that time.
18Ms Siomou’s personality, anxiety levels, social relationships, close personal relationships and general enjoyment of life, have changed dramatically since the accident. She avoids social engagement and recreational activities. She only maintains contact regularly with one close friend, other than her ex-partner Paul, and she has not seen that friend for one-and-a-half years.
19She is prone to mood swings, and is short-tempered and impatient with her son. At other times, she becomes tearful and overwhelmed with sadness, although she tries to hide this from her son. She actively avoids confrontation and seems withdrawn and flat. She is tired and lacking in energy, and struggles to get up in the morning. She finds it difficult to motivate herself to perform basic chores and no longer has the energy to maintain her home to the standard she previously did. She finds it difficult to concentrate and feels her memory has been impacted, although she is able to concentrate sufficiently to meet the requirements of work, and her memory appeared good under cross-examination.
20She continues to drive when required for work or to care for her son. However, she feels extremely anxious in motor vehicles, whether she is a driver or a passenger. As a result, driving is exhausting.
21She suffers from flashbacks and persistent recollections of the accident. She struggles to sleep at night.
22She feels herself unable to engage as actively with her son as she previously did, and leans on her ex-partner Paul heavily in assisting to get her son to and from school and to sporting activities on the weekend. It was clear from her cross-examination that the impact on her relationship with her son was the most devastating consequence for her.
23In addition, she continues to suffer regular neck, right shoulder, lower back pain and headaches.
Does Ms Siomou suffer a long-term mental or behavioural disturbance or disorder?
24I have read and considered all the medical reports tendered in evidence. The most relevant to this proceeding are the reports of those practitioners who provide a diagnosis of Ms Siomou’s mental condition, namely:
(a) treating general practitioner, Dr Elisa Beasley;
(b) treating psychologist, Ms Margetts;
(c) treating psychologist, Ms Christine Mitchem;
(d) medico-legal psychiatrist, initially retained by both the plaintiff and the defendant, Dr Nathan Serry;
(e) medico-legal psychiatrist retained by the plaintiff, Dr Weissman; and
(f) medico-legal psychiatrist retained by the defendant, Associate Professor George Mendelson.
25Of these, Dr Beasley, Ms Margetts, Ms Mitchem, Dr Serry and Dr Weissman, all diagnose Ms Siomou as suffering from PTSD.[7] In addition, Dr Serry diagnoses Ms Siomou as suffering from Comorbid Chronic Adjustment Disorder with Anxious and Depressed Mood;[8] and Dr Weissman and Ms Margetts diagnose her as suffering Chronic Major Depressive Disorder with Anxious Distress.[9] Associate Professor Mendelson stands as the sole medical expert not to diagnose Ms Siomou with PTSD. Instead, he diagnoses an adjustment disorder with mixed anxiety and depressive reaction, which he says is currently well controlled.
[7] Dr Serry; Dr Weissman
[8] Dr Serry
[9] Dr Weissman; Ms Margetts; Dr Beasley
26The predominance of the medical evidence therefore supports a diagnosis of PTSD. Associate Professor Mendelson’s view that Ms Siomou’s condition is currently well controlled, is inconsistent with Ms Siomou’s symptoms, as I have described them above. Ms Siomou’s treating general practitioner and psychologists have had the opportunity to assess Ms Siomou over many appointments. Dr Serry, too, has assessed Ms Siomou on three occasions. By contrast, Associate Professor Mendelson’s opinion is based on a single Zoom assessment, his review of previous medical reports and, particularly, a close reading of the clinical notes (and what he sees as inconsistencies and absences in those notes). I prefer the direct evidence of Ms Siomou’s treating clinicians to the inferences which Associate Professor Mendelson draws from the clinical notes.
27Associate Professor Mendelson also expressed the view that the resolution of these proceedings may have a beneficial impact on the rate of improvement of Ms Siomou’s symptoms. It did not seem to me (or the other medical experts) that this proceeding was a predominant factor in her distress. I note, too, that Ms Siomou’s continued engagement with full-time employment tells against any overplaying of her symptoms in the hope of an economic benefit from litigation.
28I prefer the opinions of Dr Beasley, Ms Margetts, Ms Mitchem, Dr Serry and Dr Weissman to that of Associate Professor Mendelson. I am satisfied that Ms Siomou suffers from PTSD as a result of the accident, with Comorbid Chronic Depressed and Anxious Mood, which amounts either to a chronic adjustment disorder or chronic major depressive disorder with anxious distress.
29I also accept, particularly on the basis of the opinion of Dr Serry and the chronic and ongoing nature of her symptoms some four years after accident, that Ms Siomou’s current condition is likely to continue for the foreseeable future.
Is the dominant cause of this mental or behavioural disturbance or disorder organic?
30There are two contributing factors to Ms Siomou’s current mental condition:
(a) the direct impact of the trauma of the accident; and
(b) a secondary response to the ongoing pain and disability she has suffered since the accident.
31In addition, Ms Siomou continues to suffer symptoms of neck, right shoulder and lower back pain, and regular headaches.
32Senior Counsel for Ms Siomou submitted that I could take into account the whole of Ms Siomou’s “condition” in assessing whether Ms Siomou suffered a severe mental or behavioural disorder or disturbance, so long as the predominant cause of her condition was not organic.
33Counsel for the defendant submitted that I could not take into account any element of Ms Siomou’s condition which was caused by an organic condition. He submitted that I was required to “disentangle” and exclude all consequences which were caused by an organic condition, including any aspect of Ms Siomou’s mental condition that was a secondary response to pain.
34The facts of this case are very different to those directly in issue in cases such as Richards v Wylie[10] and Jovceva v Transport Accident Commission,[11] which deal with the difficult situation of how to treat symptoms of pain, or other impairment of a body function which may be either organic in origin or due to a secondary psychological condition. In such circumstances, the pain or other impairment of body function will only fall within paragraph (a) of the definition of “serious injury” if it is predominately the (direct) product of an organic condition.
[10] (2000) 1 VR 79
[11] [2019] VSCA 105
35Here, Ms Siomou complains of pain, but none of the psychologists or psychiatrists attributed these symptoms to the condition which she relies upon to support her claim – namely PTSD with Comorbid Major Depressive Disorder or Chronic Adjustment Disorder. I am not satisfied that Ms Siomou’s pain is a consequence of a mental or behavioural disturbance or disorder relied upon by Ms Siomou in this proceeding. Given this, I will not take into account Ms Siomou’s symptoms of pain in assessing this application.
36The symptoms and consequences which are attributable to Ms Siomou’s mental or behavioural disturbance or disorder are a different matter, however. As explained by Winneke P in Richards v Wylie,[12] the “mental response” to an organic impairment may be taken into account in determining the seriousness of that impairment for the purposes of paragraph (a) of the definition of “serious injury”.[13] However, it does not follow from this that the Court, when considering a paragraph (c) case, must exclude from consideration any mental response which is secondary to an organic condition. That this is so, is apparent from the example given by Winneke P of an “hysterical response to minor trauma”[14] and Buchanan JA’s example of “a mental or behavioural reaction to past damage”,[15] each of which are said to fall to be assessed under paragraph (c).[16] I do not accept that I must seek to somehow apportion or disentangle the consequences of Ms Siomou’s diagnosed PTSD with Comorbid Major Depression or Adjustment Disorder between those consequences which are a direct impact of the trauma of the accident, and those consequences which are secondary to pain of organic origin. If I were required to do this, the examples given above by Winneke P and Buchanan JA would not fall within paragraph (c). I am satisfied that Ms Siomou suffers from a mental or behavioural disturbance or disorder which results from the accident and, in my view, that suffices for the consequences of that disturbance or disorder to fall within paragraph (c).
[12] (Supra)
[13](Supra) at paragraph [17]; see also Transport Accident Commission (TAC)v Kamel [2011] VSCA 110 at paragraphs [66] and [79].
[14] (Supra) at paragraph [16]
[15] (Supra) at paragraph [23]
[16] (Supra) at paragraph [16]
37In any event, to the extent that any enquiry is required into whether Ms SIomou’s mental condition is due to the direct impact of the trauma of the accident or is secondary to some organic injury incurred in the accident, it must at least suffice for the Court to be satisfied that the predominant cause of Ms Siomou’s mental condition is the trauma of the accident.[17] The consistent emphasis in the reports of Ms Siomou’s treating psychologists and general practitioner, and the reports of Dr Serry and Dr Weissman, is on Ms Siomou’s PTSD diagnosis and the ongoing impact of the trauma of the accident on Ms Siomou’s mental wellbeing. I accept that it is this trauma that is the predominant cause of Ms Siomou’s current mental condition (i.e. PTSD with Comorbid Major Depression Disorder or Chronic Adjustment Disorder). Accordingly, on any view, the consequences of that mental condition fall to be considered in relation to the question of whether Ms Siomou is suffering from a severe mental or behavioural disturbance or disorder.
[17] Richards v Wylie (supra) at paragraph [28] (per Chernov JA)
38I note that Dr Serry performs an impairment evaluation and finds a 17 per cent impairment, of which he attributes 10 per cent to direct trauma and 7 per cent as secondary or reactive to physical injuries.[18] I do not find this impairment evaluation helpful to the entirely different question of whether Ms Siomou has suffered a serious injury. However, if anything, it supports my prior conclusion that the predominant cause of Ms Siomou’s current mental condition is trauma from the accident.
[18] APCB 65
Are the consequences of this mental or behavioural disturbance or disorder severe?
39Ms Siomou bears the burden of establishing that she has suffered a long-term severe mental or behavioural disturbance or disorder. The word “severe” is stronger than “serious”.[19]
[19]Transport Accident Commission v Katanas (2017) 262 CLR 550 at [5]; Mobilio v Balliotis [1998] 3 VR 833 at 846.
40In assessing the severity of Ms Siomou’s mental or behavioural disturbance or disorder, I must identify and bring to account “all of the factors which emerge on the evidence as relevant to the assessment”.[20] Just as in Transport Accident Commission v Katanas,[21] it was an error to focus solely on the extent of treatment required, so to, in the present case, it would be an error to focus solely on Ms Siomou’s capacity for employment rather than also considering:
“… the severity of [her] symptoms; the severity of their consequences for her; and the extent to which the symptoms or consequences inhibited the respondent’s daily activities, family life, social life and educational pursuits”.[22]
[20] Transport Accident Commission v Katanas (supra) at paragraph [25]
[21] (Supra)
[22] (Supra) at paragraph [21]
41Ms Siomou has proven herself, through doggedness and determination, to be capable of continuing to perform the economic activities required to support herself and her son. She has maintained full-time employment. However, there is a tenuousness to her position, particularly as workplaces move back towards requiring in-person attendance. Her mental wellbeing also suffers as a consequence of her continuing to push herself to engage in full-time employment. This is noted by her treating psychologist:
“While [Ms Siomou’s] PTSD symptoms have stabilised, she is at risk of recurrence and exacerbation of symptoms if she continues in her current employment circumstance which is not sustainable. … .”[23]
[23] APCB 137
42Ms Siomou has also continued to drive, despite it filling her with anxiety and triggering intrusive thoughts and memories. She has also – at least to some extent – continued to cook and clean, and perform other basic daily tasks. She clearly falls within the category of a “stoic”.
43To maintain this level of functioning, Ms Siomou requires daily prescription medication. I am also satisfied that she ought to have regular psychological treatment, although she has not actually availed herself of that treatment for long periods over the last four years. A failure to seek required treatment cannot be uncommon among those who are suffering from a mental disorder with depressive features. This failure to seek treatment, while relevant, does not exclude a finding that her condition is severe.
44Further, dramatic changes have been wrought in Ms Siomou’s demeanour, socialisation, capacity to care for her home, energy levels and general capacity to enjoy life and, most critically, to care for and engage with her son. She has changed from an energetic, social and house-proud woman who was the “life of the party”, to a virtual social recluse. She suffers from mood swings and irritability, and flashbacks. She suffers from low energy levels. She struggles to sleep. Her capacity to care for and engage with her young son has been severely impacted, a matter which is clearly deeply distressing for her. In addition, Ms Siomou is heavily reliant on the ongoing gratuitous support of her former partner to continue to care for her son and maintain accommodation.
45When the enquiry is extended beyond mere economic activity, as it must be on the authority of the High Court in Katanas, it is apparent that the consequences of Ms Siomou’s mental or behavioural disturbance or disorder are indeed more than “very considerable” and meet the requirements of “severe”.
Conclusion
46I am satisfied that Ms Siomou suffers from a long-term severe medical or behavioural disturbance or disorder as a result of the accident. I will grant leave to bring proceedings for damages and hear from the parties on the question of costs.
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Certificate
I certify that these 13 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 13 September 2022.
Dated: 13 September 2022
Cian (Coco) McMahon
Associate to her Honour Judge Tran
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