Soraya v TAC
[2023] VCC 1838
•14 November 2023
Dandenong
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00119
| SEYEDEHFAKHRI SORAYA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August, 1 September, 3 and 4 October 2023 | |
DATE OF JUDGMENT: | 14 November 2023 | |
CASE MAY BE CITED AS: | Soraya v TAC | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1838 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – physical injury – pain and suffering – unrelated psychiatric condition
Legislation Cited: Transport Accident Act 1986
Cases Cited:Popal v Transport Accident Commission [2023] VSCA 222; Guppy v Victorian WorkCover Authority and Bendigo Access Employment Inc [2010] VSCA 164; Richards v Wylie [2000] 1 VR 79
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | On 31 August and 1 September – Mr J Fitzpatrick with Ms A Bannon On 3 and 4 October – Mr J Fitzpatrick with Mr D Nguyen | Zaparas Lawyers |
| For the Defendant | On 31 August and 1 September – Mr A Moulds KC with Ms L Burke On 3 and 4 October – Mr A Moulds KC with Mr S Pinkstone | Lander & Rogers |
HIS HONOUR:
Introduction
1The proceeding before the Court is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”).
2In this proceeding, Ms Seyedehfakhri Soraya (“the plaintiff”) claimed to have suffered a “serious injury” to her spine in a car accident that occurred on 28 October 2018 (“the accident”).
3The issues for determination involved a consideration of the evidence in the context of the plaintiff’s pre-existing psychiatric condition, for the identification of impairment and impairment consequences she alleged were caused by the claimed physical injury to her spine.
4For this proceeding, the defendant accepted that the accident caused symptoms to develop in the plaintiff’s spine.[1] But it contended that whatever physical injury suffered was not ongoing or, if ongoing, was not serious because whatever happened is extant now because the situation has been overtaken by matters non-orthopaedic.[2]
[1] Transcript (“T”) 79, Line (“L”) 16-23.
[2] T 80, L 1-26.
5The plaintiff contended that she had suffered a serious injury pursuant to s93 of the Act by way of a serious long-term impairment or loss of a body function, namely injury to the spine. She said the picture was complex, but in the context of the identification of impairment and impairment consequences from the claimed injury to the spine, she emphasised the evidence from the doctors who had opined regarding her physical injury. She submitted that the psychiatrists were not the ones to talk about physical injury.[3] She submitted that she had some capacity for work before the accident, which she had now lost. In addition, she submitted that she had an ongoing physical injury to the spine, which had required treatment and there had been a recommendation of surgery. She submitted that her pain, need for treatment, and inability to work were such that she had a “very considerable” impairment consequence to satisfy the well-known test for “serious injury”.[4]
[3] T 112, L 17-19.
[4] T 124, L 24-31.
6The proceeding was conducted over four days. The plaintiff gave evidence and was cross-examined over three days (albeit for about half a day on each occasion) about the contents of her affidavits and what she had said to doctors. In addition, Mr Mohamad Bayat gave oral evidence and was cross-examined about the affidavit and exhibits provided by him in the capacity as her ex-employer. The parties otherwise tendered documents from Court books. I have considered the tendered evidence and the transcript of the oral evidence, together with the parties’ submissions. I shall refer to that material to the extent necessary in these reasons.
Credit
7The defendant raised as an issue the credit of the plaintiff or, more accurately, the reliability of her evidence. For present purposes, it is sufficient to note that she was a difficult witness in the sense that, often, she had an inability to respond directly to questions asked of her, or wandered off topic and provided responses that did not answer what was asked of her. She gave unreliable evidence about her pre-accident health and life.
8English is not the plaintiff’s first language and she required the assistance of an interpreter, but I do not consider her lack of English an explanation for the unreliability of aspects of her evidence. She was able to respond better to reasonably straightforward or non-contentious topics, but was less responsive to other questions. The selectiveness in how she answered questions cannot be explained solely by language barriers. But her approach to answering questions was consistent during cross-examination and re-examination. As I said to counsel at the conclusion of the evidence, she was reliably unreliable.
9There can be no doubt that the objective evidence from medical and other documents casts doubt on her overall reliability as a historian. To be blunt, very little was learnt from the plaintiff’s oral evidence, other than how she presented, that was not already known from the objective evidence.
10During closing submissions, counsel for each of the defendant and the plaintiff did not take the Court to any specific transcript references. Therefore, at the conclusion of submissions, I indicated to counsel that, unless either side objected (and neither did), then, likewise I would not refer in detail in these reasons to the transcript of the oral evidence.
11But, to give an example to illustrate this point about the manner in which she gave her oral evidence, in cross-examination she was asked whether she applied for a Safe Haven Enterprise Visa on 30 December 2016. She responded appropriately that she was not sure about the date, but she knew she applied in 2016.[5] But when it was put to her that she had learned within days of the accident that her visa application had been refused, she responded by saying:
“this is what I know: I came to Australia, I bought a car. I insured that vehicle and I don’t have any prior – history of prior accidents in Australia. I complied with the laws and regulations. Immigration rejected my case and as a result of that, against advice of my doctors, including Dr Hogan, in order to survive I was working and that’s all I know and I really don’t know about the sequence or the dates that you are presenting to me”.[6]
[5] T 38, L 9-14 (1 September 2023).
[6] T 40, L 28-31; T 41, L 1-5 (1 September 2023).
12During cross-examination, the plaintiff often defaulted to obtuse responses when propositions were put to her based on the objective evidence, but generally she sought to highlight how she was able to function and work before the accident, whereas that had changed after the accident.
13The unreliability of aspects of the plaintiff’s evidence may be explained by her longstanding psychiatric condition and traumatic events during her life. I consider that if half of the traumatic events said by the plaintiff to have happened to her, in fact did happen, then she has had a very difficult and traumatic life. Her unreliability as a historian may also be explained by a lack of insight into, or a reluctance to accept, the extent of her pre-existing psychiatric condition.
14I do not consider that she set out to deliberately mislead but, equally, I do consider much of her evidence to be unreliable, especially the evidence of the extent of her pre-existing and ongoing psychiatric condition. This means that, in the absence of objective evidence that corroborates her evidence, I am unable to accept much of what she has said in her affidavits and to the doctors. It also means that the opinions from the doctors must be considered in the context of the accuracy of the history provided.[7]
[7] Popal v Transport Accident Commission [2023] VSCA 222.
Pre-accident chronology
15To give context to the accident and what might flow from it, I shall first set out a brief chronology of relevant facts that pre-date the accident which are mostly extracted from the objective evidence or agreed facts. I consider it as accurate as is possible based on the overall state of the evidence.
16A brief chronology is necessary to appreciate the traumatic events that the plaintiff has suffered, because those events are relevant in an understanding of how she presented as a witness; the reliability of her evidence; her level of function for work and social activity before and after the accident; and an assessment of what injury and impairment consequences, if any, were caused by the accident.
17The plaintiff swore an affidavit on 15 March 2022.[8] For the purpose of a chronology, even though it is not corroborated, I accept her background as set out in that affidavit.
[8]Plaintiff’s Further Amended Court Book (“PFACB”) 7.
18The plaintiff was born in Iran in 1971. She was married at a young age and has three sons, who are now adults. The eldest son lives in Italy. She was persecuted in Iran due to her religious beliefs. She was imprisoned on numerous occasions and subject to sexual abuse and torture. Family members were also persecuted. A brother was killed. In the face of such persecution, she left Iran in 2013 to Malaysia and then Indonesia, where people smugglers arranged transport to Australia for her, her husband and their two youngest sons. They were intercepted at sea and taken into detention on Christmas Island in late 2013.
19Because of her life and trauma in Iran, the plaintiff had mental health issues. During detention on Christmas Island, her psychiatric condition deteriorated, and she was transferred to a psychiatric facility in Perth. In her affidavit, she said she was hospitalised in Perth for four or five months.[9] She was then returned to Christmas Island, where she discovered that, in her absence, her husband had formed a relationship with another woman in detention. That caused a worsening of her mental health. The plaintiff was released from detention and into the community on some type of temporary visa during 2015. There have been ongoing disputes about her visa and her status to remain in Australia.
[9]PFACB 8, paragraph [15].
20The defendant tendered hospital and medical records relating to the plaintiff, which assist in an understanding of her health before the accident, although the tendered documents are not the complete picture.
21It is unclear when the plaintiff began to live in Melbourne. Her medical records disclose that, by 29 July 2015, she was living in Melbourne and commenced attending a general practitioner, Dr Sara Razaghi, who then recorded the plaintiff as an asylum seeker, having arrived in Australia in 2014. Dr Razaghi described the plaintiff as a “complicated patient”. She recorded that the plaintiff had depression/anxiety for many years and “has had many suicidal attempts”.[10] This is the first objective piece of evidence regarding the plaintiff’s health before the accident.
[10]Defendant’s Further Amended Court Book (“DFACB”) 191.
22The plaintiff then attended another general practitioner, Dr Aram Sehat, on 9 August 2015. Dr Sehat recorded presenting issues as anxiety and depression, post-traumatic stress disorder, and consequences of sexual assault.[11]
[11]DFACB 193.
23Dr Sehat referred the plaintiff to Dr Fiona McGlade, consultant psychiatrist, at Foundation House. In a letter to Dr Sehat dated 25 August 2015, Dr McGlade recorded the plaintiff presenting with major depression and recent suicidality with admission to hospital following an overdose. She noted the plaintiff presenting with depressive symptoms on the background of the recent separation from her husband and extensive history of trauma and imprisonment. The plaintiff was then taking Fluoxetine and Risperidone.[12]
[12]DFACB 195.
24Dr McGlade reported to Dr Sehat again by letter dated 22 March 2016. She described the plaintiff as struggling with several difficult issues including the death of her father. Dr McGlade recorded the plaintiff currently struggling to talk about the loss of her father, and:
“However, she does describe some increase and worsening of her bizarre symptoms of being surrounding by people, in this case, strange alien-like people wearing horns or antennae. She has previously described these phenomena in relation to feeling constantly in the presence of her deceased mother but she talks that her mother has now been removed by these people who remain with her. Soraya states that she has ceased taking her medication in the past fortnight. While she said that she did not feel she needed it, she certainly is struggling with much distress although she does not appear to be experiencing any withdrawal symptoms”.[13]
[13] DFACB 196.
25On 1 August 2016, the plaintiff was first seen as a patient at the Brentwood Park Family practice. Since then she has regularly attended that medical practice, where her main general practitioner has been Dr Maryam Delavari,[14] although she has also seen other doctors at the practice. The clinical notes disclose regular consultations for a range of medical issues, including mental health issues. These extend back to an attendance on 9 August 2016 where, amongst other things, Dr Delavari recorded the plaintiff to have schizophrenia.[15]
[14]DFACB 70.
[15] Ibid.
26On 3 January 2017, the plaintiff presented to the South Eastern Centre Against Sexual Assault and Family Violence (“SECASA”). By that stage, an organisation known as AMES was assisting the plaintiff due to her refugee status, as were other organisations. The plaintiff described to SECASA a sexual assault, although the documents record a doubt by police as to whether the assault occurred, but that an AMES worker “in all fairness” thought the plaintiff’s injuries were not self-inflicted.[16]
[16]DFACB 197.
27The plaintiff then presented to Monash Health on 4 August 2017 following a presentation of an alleged sexual assault. She reported being kidnapped from her car and sexually assaulted. By then, she had a treating psychiatrist and had previously been admitted to hospital due to concerns about psychotic symptoms. The hospital notes suggest that the plaintiff was psychiatrically very unwell at the time of that admission.[17]
[17]DFACB 186-190.
28The plaintiff was then referred by Dr Delavari to Dr Geoffrey Hogan, consultant psychiatrist, who saw the plaintiff for the first time on 13 October 2017. Dr Hogan then wrote back to Dr Delavari on 16 October 2017[18] and described the plaintiff as having chronic major depressive disorder as well as post-traumatic stress disorder. He made recommendations about ongoing medication and that she be referred for counselling in her own language.[19]
[18]DFACB 208.
[19]DFACB 210.
29The plaintiff next presented to the Dandenong Hospital on 28 November 2017 with stress urinary incontinence.[20] She was reviewed again for that condition at Monash Health on 22 May 2018.[21]
[20]DFACB 211.
[21]DFACB 212.
30The plaintiff has regularly attended the Brentwood Park Family Practice for a variety of medical conditions and ailments. In a document described as “Team Care Arrangements – Co-ordination” completed by Dr Delavari on 20 March 2017, several medical conditions were recorded including chronic neck pain and bilateral shoulder pain.[22] Consistent with that, the plaintiff had undergone a cervical spine x-ray on 24 February 2017 which reported minor degenerative changes.[23]
[22]DFACB 206.
[23]DFACB 201.
31On 22 May 2018, Dr Delavari recorded the plaintiff as suffering panic attacks and ongoing depression.[24] On 13 August 2018, Dr Delavari recorded that the plaintiff had ongoing depression and post-traumatic stress disorder, with poor sleep, early morning waking, depressed mood, low self-esteem, but no suicidal thoughts.[25] Similar symptoms were recorded on 13 September 2018.
[24]DFACB 85.
[25]DFACB 86.
32Through 2017 and 2018, there were attendances on Dr Delavari for mental health issues. During 2017, Dr Delavari referred the plaintiff to a clinical psychologist, Dr Fariba Kavianpour. In a letter dated 19 November 2018 addressed “To Whom It May Concern”,[26] Dr Kavianpour provided information regarding the plaintiff’s mental health condition and treatment over the previous 12 months as follows:
“Ms Soraya has been receiving ongoing treatment with me in the past year for her long standing severe Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD). She is suffering from low mood, anhedonia, disturbed sleep and appetite, poor memory, low motivation and energy. She is hopeless and helpless and has continuous wish to die and suicidal ideations. Her depressive and anxiety symptoms mean that her cognitive abilities such as her memory and concentration are compromised. She is totally withdrawn and avoids all social occasions. She suffers from nightmares, intrusive images of her traumas, startle response and hypervigilance as part of her PTSD. Her health issues have impacted her ability to function and her daily functioning is very limited. Her mental state has further deteriorated since she received a negative outcome from the Department of Home Affairs for her protection visa. She has been very unwell to the extent that she is unable to leave her bed. In my professional opinion, Ms Soraya is not in a state of mind to be able to look for employment or manage any type of work. Her treatment plan is to continue with her medications and psychotherapy. Her psychiatrist will review her, and I will provide her with psychotherapy on fortnightly basis. She could be assessed in 12 months to see if she is able to enter the job market. As such, she requires receiving financial assistance for at least another year as she is not capable of working and supporting herself financially. She would not be able to pay for her basic living needs including her rent, food, and medications, if her financial assistance were ceased. It would have severe detrimental effect on her health and well-being”.[27]
[26]DFACB 22.
[27]DFACB 22-23.
33On 24 October 2018, a general practitioner at Dr Delavari’s clinic recorded the plaintiff as doing well,[28] although I consider that needs to be read in context of florid ongoing psychiatric symptoms.
[28]DFACB 88.
34Treatment with Dr Hogan continued during 2018. In a letter dated 21 October 2018 to Dr Mirranay at the Brentwood Park Family Practice, Dr Hogan wrote:
“Mrs Soraya had a history of marked trauma and presented with a chronic major depressive disorder/post-traumatic stress disorder. She had been prescribed duloxetine, which was less potent than her previously prescribed fluoxetine. It was recommended that she be switched back to fluoxetine, that she might be prescribed olanzapine as an adjunct potentially useful for both depressive and post-traumatic symptoms and that obtaining a permit for alprazolam for prophylaxis of panic attacks would be appropriate.
Mrs Soraya was reviewed on 15 October 2018. She was then taking Lovan 60 mg daily and alprazolam 1 mg mane and nocte, on occasion with a pm dose of alprazolam during the day. She said the alprazolam 1 mg twice daily had been overall markedly helpful.
Of recent affective symptoms, she said that sleep was variable, appetite was high and she had gained 10 kg in weight, energy was below normal, there was impairment of recent memory and concentration and she said she continued to feel depressed constantly with morning worsening and significant tearfulness. There were not ongoing suicidal thoughts.
Mrs Soraya has improved since last seen, flashbacks are much improved, nightmares are less, affective symptoms have improved. However, she remains quite ill with her chronic major depressive disorder/PTSD. The continuing use of alprazolam is appropriate I believe it appropriate to obtain a further permit now that her prior GP has left your practice.
In terms of her otherwise ongoing psychotropic regime, an increase in Lovan dose to 80 mg or if necessary 100 mg daily would not be inappropriate. Olanzapine is a useful adjunct but she has already gained 10 kg in weight as B consequence of overeating. The use of Abilify as an adjunct for depressive and post-traumatic symptoms should be considered.
She informed me that she had been prescribed Ritalin in Iran, which had been quite useful. The use of stimulants, generally dexamphetamine, can indeed at times be a useful adjunct to antidepressants but does need I think specialist psychiatric monitoring”.[29]
[29] DFACB 6-7.
35In summary, before the accident the plaintiff had a long-standing depression and post-traumatic stress disorder condition, for which she had required prolonged and extensive treatment, including medication. The objective evidence is of a chronic, fluctuating condition that restricted the plaintiff for a range of daily activity and rendered her realistically to be incapacitated for employment.
The accident
36Against that backdrop, the accident then occurred on 28 October 2018. In her affidavit, the plaintiff implied that it was an accident of some force because she was hit from behind and her vehicle was written off.[30] At the subsequent attendance at the Dandenong Hospital, it was recorded as a rear end collision and the speed of the other vehicle was estimated at 50 kmph.[31]
[30] PFACB 9.
[31] DFACB 213.
37In her first affidavit, the plaintiff recorded the circumstances of the accident as follows:
“I was involved in a transport accident which occurred on 29 October 2018. I was coming back from my son’s home driving a Toyota Corona vehicle that was written off in the accident.
I was at a set of red lights, looked in my rear vison mirror and saw a ute coming from behind. The ute was speeding. The ute ran into the back of my car.
I was taken by ambulance to Dandenong Hospital, and I remained in hospital overnight and was discharged home the next morning.
I suffered from neck pain that was severe after the accident as well as pain in my dominant right arm and shoulder.
I had just started a job as a cleaner prior to the transport accident. I was unable to return and have not been able to return to this job”.[32]
[32]PFACB 9 at paragraphs [24]-[28].
Treatment after the accident
38Moving next to the medical evidence that postdates the accident, in the early hours of 29 October 2018, the plaintiff attended the Dandenong Hospital Emergency Department where the history was recorded as follows:
“History of Presenting Complaint: Minimal English (Fahsi), history obtained with phone interpreter 47F presenting MVA
- was as driving car, nil passengers, estimated 50 kilometres per hour
- was rear-ended by ute, remained in vehicle, AV called by bystander, was able to self extricate to stretcher
- neck pain, headache, ongoing
- bilateral shoulder pain, has improved while in ED”.[33]
[33]DFACB 213.
39She was discharged from the hospital back to her general practitioner for review of neck pain.[34]
[34]DFACB 214.
40The plaintiff then attended Dr Mirranay at the Brentwood Park Family practice in the late afternoon of 29 October 2018, who recorded that the plaintiff was in a motor car accident and had “sore neck, and stiffness” although on examination it was recorded “good range of movements, bil muscular tenderness ++”.[35]
[35]DFACB 88.
41The plaintiff returned to Dr Mirranay on 8 November 2018.[36] By then the plaintiff had undergone a CT scan of her brain and neck which reported:
“Normal alignment of the cervical spine. Vertebral body heights and disc spaces are preserved. Normal alignment of the facet joints. No prevertebral haematoma. No acute cervical spine fracture identified. Prominent disc osteophyte complex at C6-C7 resulting in ventral thecal sac indentation”.[37]
[36]DFACB 89.
[37] PFACB 105.
42There were then several attendances at the Brentwood Park Family practice for various medical conditions. On 17 January 2019, Dr Delavari recorded a history of low back pain radiating to the legs bilaterally more so on the left.[38] On 31 January 2019, Dr Delavari recorded that the plaintiff had some incontinence since the accident and low back pain that radiated down the leg, and questioned whether the plaintiff had cauda equina symptoms.[39] There were then ongoing attendances on Dr Delavari through until 27 April 2019 when Dr Delavari recorded the possibility of a right arm biceps tear and L5 nerve root impingement. Dr Delavari recorded the plaintiff as suffering severe pain upper back and lower back and prescribed a Fentanyl patch. Then on 3 May 2019, Dr Delavari referred the plaintiff to a pain specialist, seemingly for thoracic spine pain.[40]
[38]DFACB 91.
[39]DFACB 91-92.
[40]DFACB 98.
43I shall continue to discuss the medical evidence in more detail in a moment but, to pause here, there is objective evidence from the records of the Brentwood Park Family practice of the plaintiff complaining of symptoms in her neck immediately after the accident and within a relatively short period of time more widespread symptoms in her spine. The issue in light of the parties’ contentions is whether there is an ongoing physical cause of the plaintiff’s current symptoms and whether she can identify “very considerable” consequences from any such physical (spine) injury in the context of her persisting and unrelated psychiatric condition.
Was the plaintiff employed at the time of the accident?
44To again interrupt the narrative of medical treatment and to provide context, the plaintiff claimed that, before the accident, she had been employed as a cleaner by Mr Bayat at a furniture factory operated by him in Dandenong. In her first affidavit, the plaintiff gave a very brief description of her pre-injury employment as follows:
“I had just started a job as a cleaner prior to the transport accident. I was unable to return and have not been able to return to this job.
The TAC paid my loss of earnings benefit at a calculated rate of $887.32 per week based on a document that I provided to them detailing what my arrangement was.”[41]
[41]PFACB 9 at paragraphs [28]-[29].
45The plaintiff’s affidavit does not describe how she got the employment as a cleaner, when it commenced, how she was coping with it or what her intentions were had the accident not occurred, save that later in the affidavit she said: “I have been unable to continue to work as a cleaner and obtaining financial independence is important to me”.[42]
[42]PFACB 13.
46In a further affidavit sworn 4 May 2023,[43] she said that she did not think she would ever be capable of returning to work, the accident had caused her to lose her job and her income and independence.[44]
[43]PFACB 14.
[44]PFACB 17.
47The plaintiff tendered an affidavit sworn 28 August 2023 by her now 18 year old son, Aryan Mirzarezaei.[45] He described his observations of the physical restrictions his mother now had for domestic tasks such as cooking and cleaning but made no reference to any memory he had of his mother working before the accident. Obviously, he was a young person at the time of the accident, and it is not surprising that his evidence is limited and of limited use for the issues to be decided.
[45] PFACB 19.
48The plaintiff was cross-examined at length about the alleged pre-injury employment with Mr Bayat.[46] She maintained she found the employment by going door to door looking for work after she was cut off from Centrelink because of her visa status. She said Mr Bayat found her crying out the front of his factory and offered her a job.[47] She maintained that it was full-time employment, commencing 20 August 2018, for which she was paid cash as Mr Bayat was an illiterate man.[48]
[46] Commencing at T 50 (1 September 2023).
[47] T 60, L 1-10 (1 September 2023).
[48]T 59, L 24-25 (1 September 2023).
49In the context of her pre-accident psychiatric health, the issues of her employment with Mr Bayat, her visa status and entitlement to Centrelink, and of being cut off payments by Centrelink consumed some time during cross-examination.
50The parties agreed that, in February 2018, the plaintiff was on the receiving end of an adverse decision about her visa status and her entitlement to remain in Australia. She has been involved in an ongoing dispute about her refugee and visa status. The defendant relied on records to establish that the plaintiff had been detained on Christmas Island in August 2013 and had applied for a Safe Haven Enterprise Visa on 30 December 2013. On 13 February 2018, that application was refused. There is an ongoing legal challenge to her visa status. The plaintiff had told doctors, and accepted during her evidence,[49] that the ongoing uncertainty about her visa had been a source of stress.
[49] T 37, L 11 (1 September 2023).
51The defendant tendered the plaintiff’s 2019 tax return as evidence that she had received approximately $13,000 of Centrelink payments during that financial year.[50] The plaintiff maintained that after her visa was refused, she was cut off Centrelink and since then had been in a desperate financial situation. Because of her desperate financial status, she had looked for work. She said she had gone from door to door at factories in Dandenong and in doing so she met Mr Bayat, and he offered her immediate, full-time employment as a cleaner.
[50]DFACB 230.
52The plaintiff relied on an affidavit from Mr Bayat sworn 28 August 2023.[51] That affidavit exhibited two documents signed by him. The first of those documents dated 12 November 2018 set out “To Whom It May Concern” a letter of employment confirmation as follows:[52]
[51]PFACB 22.
[52] PFACB 129.
“Letter of employment confirmation:
Dear Sir/Mad,
That is to confirm that Ms. Seyedehfakhari SORAYA was employed by my company Two Pac Cabinet Decoration Pty Ltd as Labour since 20 of August 2018 till 26" October 2018.
Employee Details as followings:
Full Name: Seyedehfakhari SORAYA
Date of birth: [XX]/07/1971
Hire Date: 20 August 2018
Termination date: October 26, 2018
Gross Wages or Salary Year:
Total earnings: $9000.00
(40 Hrs Per Week * 9)
Rate: $25.00
Tax withheld: $00.00
Paid for work: $9000.00
Yours sincerely,
M Bayat”
53The document signed by Mr Bayat on 12 November 2018 is the document referred to in the plaintiff’s affidavit, upon which loss of earnings benefits were calculated by the defendant.[53]
[53] PFACB 9 at [29].
54Mr Bayat also provided another “To Whom It May Concern” letter dated 30 June 2020,[54] which is set out as follows:
“Letter of employment confirmation:
Dear Sir/Mad,
This letter is to confirm, that prior to the accident, Ms. Seyedehfakhri Soraya was fulfilling the requirements of her full-time employment at Two PAC Cabinet Decoration Pty Ltd. She has always been a great employee and her performance was satisfactory. If Ms. Seyedehfakhri Soraya was not involved in the accident her full-time employment would remain ongoing.
Yours sincerely,
M Bayat”
[54] PFACB 130.
55There was considerable cross-examination of the plaintiff as to how she came to be employed by Mr Bayat, the nature of that employment, how she was paid and the like. There was similar cross-examination of Mr Bayat.
56I do not propose to dwell on the appropriate, but lengthy, cross-examinations of the plaintiff and Mr Bayat. As indicated to counsel during closing submissions, on a consideration of the documentary evidence and the oral evidence from the plaintiff and Mr Bayat, I am satisfied that there was some employment relationship between them. The defendant accepted that that was a conclusion that was open to be made.[55]
[55] T 88, L 17-30.
57But neither the plaintiff nor Mr Bayat gave convincing evidence about the terms and conditions of that employment. Mr Bayat initially appeared via Zoom and got off to a flying start with his evidence by refusing to take an oath. He initially appeared without any proper device or access to any relevant documents. When his evidence resumed in person, he was at pains to point out that he was illiterate in English. He said he was a carpenter and not an engineer.[56] He gave inconsistent evidence about the turnover of his business, and the need for a part-time bookkeeper named “Karim”. He had no records beyond the letters exhibited to his affidavits, which he said had been prepared by “Karim”. While he maintained the documents exhibited to his affidavit were accurate, he was unconvincing in how he gave that evidence. He described the businesses he had run in Australia, and adverse events in his life associated with those businesses. In the context of being defrauded in 2010 or 2011, he said that, since then, his memory “hasn’t been very good”.[57]
[56] T 46, L 25-28 (3 October 2023).
[57] T 65, L 26-31 (3 October 2023).
58In short, the evidence that the plaintiff door knocked and found immediate full-time employment as a cleaner in Mr Bayat’s factory for $1,000 per week, and that such employment continued seamlessly for nine weeks until the happening of the accident, is difficult to accept, particularly in a consideration of the medical evidence that exists around that time in which there was no mention of employment. While Mr Bayat stuck to his guns and maintained that the plaintiff was a good worker and an honest worker, his general presentation was somewhat shambolic, even allowing for language barriers. As mentioned, he said he had a very poor memory and that was how he presented. In circumstances where the plaintiff was paid cash and there are no contemporaneous records regarding the hours that she worked, I consider there is considerable doubt about the plaintiff and Mr Bayat’s evidence about it being full-time.
59But, ultimately, not much turns on whether I accept the extent of her pre-accident employment with Mr Bayat, because of the evidence that the plaintiff’s psychiatric symptoms were incapacitating her for work around the time of the accident and would have made it very difficult for her to perform any employment.
60Turning then to the objective evidence of her mental health around the time of the accident, the treating psychiatrist, Dr Hogan, wrote a “To Whom It May Concern” letter probably for Centrelink purposes, on 14 April 2019[58] in which he described the plaintiff as “markedly impaired by a chronic major depressive disorder/post-traumatic stress disorder”. He said the severity of the plaintiff’s psychiatric symptomatology was such as to preclude any employment, and “it is more probable than not that Mrs Soraya will remain permanently unfit for employment”.
[58]DFACB 227.
61That opinion from Dr Hogan was expressed at a time when he was unaware of the alleged employment with Mr Bayat and unaware of the accident. In other words, his description of severe psychiatric symptomatology must relate to the pre-existing psychiatric condition and, obviously, in his opinion as at April 2019, that condition precluded the plaintiff from pursuing employment.
62Therefore, while I accept on balance that the plaintiff did some work for Mr Bayat, I do not accept that it would have been ongoing considering Dr Hogan’s opinion.
63Further, it transpired during Mr Bayat’s oral evidence that his business had closed before he wrote the letter of 30 June 2020. As mentioned, he presented as a poor historian. He said he had a range of health issues that impacted his memory. Any payments made to the plaintiff were made in cash. The whole employment relationship was, at best, a very loose one. I doubt very much that it would have been ongoing, or that it would have been ongoing full-time employment, for a variety of reasons including a consideration of the objective medical evidence.
64But, nevertheless, I do accept the plaintiff did some work for Mr Bayat before the accident. There is also some vague evidence of her having done a few days’ work at a chicken farm sometime before the work with Mr Bayat.
65In final submission, the plaintiff’s case was presented on the basis that she had ongoing pain which, when combined with some restriction for day-to-day activity and some restriction for employment – even if her employment situation was bleak pre-accident – was such that she had a “very considerable” consequence.
66When it comes to loss of earning capacity consequences, a small financial loss of earning capacity for an impoverished person or a person coming from a very low base, may be capable of being described as “very considerable”.[59] In that regard, there is some attraction to the submission on her behalf that, for an impoverished person such as the plaintiff, even if she had a very small amount of earnings from her work as a cleaner, the loss of that small capacity is of significance to her. But of course, that submission is predicated upon an acceptance that the plaintiff had a capacity for work that she could have, and would have, exercised but for the accident. It is also predicated on an acceptance of an ongoing physical injury to the spine that would incapacitate her for work.
[59]Guppy v Victorian WorkCover Authority and Bendigo Access Employment Inc [2010] VSCA 164 at [50] – [51].
67On a consideration of the whole of the medical evidence, in particular the evidence from Dr Hogan and Dr Kavianpour, that is not a submission that I accept. Unfortunately, and tragically for the plaintiff, even if the accident had never happened, the evidence tends to the conclusion that her significant and ongoing psychiatric condition would have precluded her from work.
68In closing submission, it was emphasised that the plaintiff had said she took the job with Mr Bayat despite the advice from her doctors that she was unfit for work. I accept she should be not criticised for that, and it may well be explained by the desperate financial situation she found herself in. But, at the risk of repetition, it is another thing to accept that any employment with Mr Bayat, or similar employment, would have been ongoing. The objective and reliable evidence from the treating psychiatrist and the treating psychologist just does not support such a conclusion.
69Further, as I shall come to, I also consider that the plaintiff’s psychiatric condition is ongoing and causes an ongoing total incapacity for work. Therefore, even if the plaintiff has an ongoing back injury that might limit the sort of work she could now undertake, it does not cause any pecuniary loss consequences where she is unfit for work because of the psychiatric condition.
The plaintiff’s mental health after the accident
70At this point, it is convenient to return to the objective evidence in the medical records as to the plaintiff’s mental health.
Dr Geoffrey Hogan
71Dr Hogan had reported back to Dr Mirranay by letter dated 13 January 2019, in which he recorded that, at the last review on 8 January 2019, the plaintiff was still having problems with her sleep, and frequent flashbacks. He described her as socially withdrawn and finding it difficult to leave the house and was terrified about being sent back to Iran. He recorded the rejection of a protection visa and pending litigation about that. He made no mention of the accident or the employment with Mr Bayat.
72On 27 October 2019, Dr Hogan wrote to the plaintiff’s solicitors.[60] He described her as having had a severe psychiatric illness for many years but some improvement with recently prescribed medication. He said that it was only at the most recent consultation on 28 August 2019 that the plaintiff had detailed her motor vehicle accident. He said the plaintiff now suffered back pain as a result of the accident. He said:
“It is thus difficult to apportion any psychiatric symptomatology to the effects of her recently-reported psychiatric illness. With respect to prognosis of her physical injuries, it may be appropriate to obtain an opinion from any orthopaedic specialist or her general practitioner.
To reiterate, her psychiatric status is very much improved of late, in the context of chronic psychiatric illness, with prescription of dexamphetamine 10mg daily, stimulant medication having previously been effective for her affective illness many years ago in Iran.”[61]
[60]DFACB 12.
[61] DFACB 16.
73Dr Hogan then wrote to the defendant on 23 March 2020.[62] That was in the context of a request for funding for various medications.
[62]DFACB 10.
74Dr Hogan wrote again to the plaintiff’s solicitors on 5 May 2021.[63] He said there was still a possibility of some improvement with ongoing treatment but “overall it appears more probable than not that Mrs Soraya will remain quite incapable of employment, both on the basis of her chronic pain and her affective symptomatology.”[64]
[63]DFACB 18.
[64]DFACB 21.
75To complete a discussion about Dr Hogan’s evidence, he reported again to the plaintiff’s solicitors on 27 March 2023.[65] He repeated his view that the plaintiff would be permanently incapacitated with respect to any employment by her pain and affective symptoms. He said he was of the view there had been an exacerbation of her psychiatric symptoms because of her motor vehicle accident and chronic pain.[66]
[65]PFACB 44.
[66]PFACB 45.
76The evidence from Dr Hogan tends to the conclusion that the plaintiff has a longstanding and severe psychiatric condition that rendered her incapable of employment but may have been exacerbated because of the accident.
77It is notable that, in this proceeding, the plaintiff does not claim to have suffered a serious injury from any alleged psychiatric consequences from the car accident, other than in the Richards v Wylie (“Richards”) context.[67] But, as emphasised in Richards, the extent that an emotional reaction can be taken into account in an assessment of a physical injury is limited and the distinction must be maintained between a claim based on a physical injury, as is the case in this proceeding, as opposed to a claim based on a psychiatric injury.
[67][2000] 1 VR 79.
Dr Fariba Kavianpour
78Next, to return to the evidence from Dr Kavianpour, she wrote a further “To Whom It May Concern” letter on 4 August 2021.[68] She repeated her diagnosis of a severe major depressive disorder and severe post-traumatic stress disorder and noted the plaintiff had been the victim of torture and trauma in Iran. She said the plaintiff had ongoing suicidal ideation and her cognitive abilities were compromised. She described the plaintiff as totally withdrawn and avoiding all social occasions. She then said the plaintiff was also suffering a chronic pain syndrome following a motor car accident.
[68]DFACB 24.
79Dr Kavianpour said the plaintiff required long-term psychiatric treatment and specialised mental health services.[69] While Dr Kavianpour recorded chronic pain from the car accident, it is clear from a plain reading of her report that she attributed the plaintiff’s mental health problems to her experiences in Iran. She painted a bleak picture because of the plaintiff’s mental health problems.
[69]DFACB 26.
80There is a consistency in the evidence from Dr Hogan and Dr Kavianpour, namely of the plaintiff suffering long standing and quite debilitating mental health problems. Both practitioners considered the plaintiff to be totally unfit for work and expressed that opinion at a time when they were both unaware of the car accident and unaware of the alleged employment with Mr Bayat. Indeed, it appears they were never told at all about the employment with Mr Bayat.
Dr Maryam Delavari
81It is convenient to now return to the evidence from Dr Maryam Delavari, as like Dr Hogan and Dr Kavianpour, she had the benefit of assessing the plaintiff before and after the accident. Where the plaintiff is an unreliable historian, the evidence from the treating practitioners, in my opinion, assumes some importance.
82In addition to clinical records, the parties tendered several reports from Dr Delavari, the first of which is dated 30 January 2020 and written to the plaintiff’s solicitors.[70] Dr Delavari reported that the plaintiff had a pre-existing primary mental health condition described as mild to moderate anxiety and depression, as well as some other health problems. Dr Delavari reported the plaintiff suffered neck pain and stiffness, arm pain and lower back pain because of the accident. She said the accident significantly and severely aggravated the plaintiff’s previous mental health condition and caused a new condition of neck pain and back pain and had significantly affected her quality of life to a moderate degree.[71]
[70]PFACB 32.
[71]PFACB 34.
83Dr Delavari then provided a short report dated 21 July 2020.[72] She said the plaintiff “based on the evidences provided” [sic] was fit for normal duties before the accident. She recorded the plaintiff was “working at cabinet & decoration factory (namely TWO PAC) between 20/8/2018 and 26/10/2018 inclusive”.[73]
[72] PFACB 149.
[73] Ibid.
84Then, in a further report dated 9 June 2023,[74] Dr Delavari said the plaintiff’s mood disorder had been significantly aggravated and accelerated since the accident. She diagnosed the physical condition as discopathy and described conditions of the neck and lower back based on radiological findings. She said that the accident had resulted in less activity and a more sedentary life due to the plaintiff’s significant disabling pain and self-isolation due to exacerbation of her stress.[75] She described restrictions for physical activity and said the plaintiff was certainly unfit for her pre-injury duties and that incapacity would last for the foreseeable future.
[74]PFACB 50.
[75]PFACB 53.
85It is unclear from Dr Delavari’s reports when it was that the plaintiff told her about the work in the cabinet factory with Mr Bayat. The doctor’s notes record a mention on 29 October 2017 of a skin infection from working in the chicken farm.[76] That is the only explicit reference to any employment that I can find in the doctor’s notes.
[76] DFACB 80.
86To this point, the reports from Dr Delavari are supportive of the plaintiff’s claim to have suffered an injury to her spine in the accident which incapacitated her for her pre-injury employment.
87But, in addition to the reporting to the plaintiff’s solicitors, Dr Delavari also provided correspondence relevant to the plaintiff’s ongoing visa dispute. In a letter written “To Whom It May Concern” on 29 August 2022, Dr Delavari said:
“Dear Sir/Madam,
Thank you for care of Ms Seyedehfakhri Soraya, 51 years of age.
After Ms Soraya arrival to Australia she has been mentally unstable, severely depressed, and not coping well. There have been social and environmental factors in which she developed an isolation, loneliness, and finance hardship. She has been under psychiatrist and psychological care since her arrival to Australia.
I as her GP developed a treatment plan to address these psychological and social risk factors, in addition to addressing her related factors to ongoing Post-traumatic stress disorder symptoms. I understand that she has been waiting for ‘The Safe Haven Enterprise visa (SHEV)'. Apparently, she has been honer the visa in a few months ago and she was so gratefull. Reportedly her visa finalising process has stopped which was a significant trigger for exacerbating of her anxiety, feeling hopeless and to become suicidal.
I am very concern about the mental health of Ms Soraya. She has had a few suicidal attempts with some psychotic symptoms.
I shall appreciate your kind and urgent consideration for her visa condition.
Please let me know if you have any question and I look forward to your support in this regards.”[77]
[sic]
[77]DFACB 224.
88Further, in a letter dated 22 November 2022, Dr Delavari wrote[78]:
“Dear Sir/Madam,
Thank you for care of Ms Seyedehfakhri Soraya, 51yrs 3mths years of age. I've been MS Soraya's family doctor and psychotherapist since 2016.
She had received a letter from the IAA regarding conclusion of her application that she met the requirements definition of refugee. So, I am sincerely grateful for the huge honour of being given to her and her younger son, Arian.
It has been a few months, though, that she has been waiting for the formal notice of their application's conclusion and therefore their permanent visa. I believe that, She need a confirmation letter/document from your honour to be able to use the Australian permanent residency entitlements such as; centrelink services access. Also, to be able travel to and from Australia. This is very important for her because, her eldest son, Mahan (29 years old) lives in Italy as he had fled from Iran 11 years ago. MS Soraya has not seen him since then. for 11 years. Her lawyer believes that having a letter of conformation from the IAA will resolve her problem. I certify that, her request is genuine. I highly appreciate your help.”
[sic]
[78]DFACB 225.
89Next, by letter dated 22 December 2022, Dr Delavari wrote[79]:
[79]DFACB 226.
“Dear Sir/Madam,
Thank you for care of Ms Seyedehfakhri Soraya, 51yrs 4mths years of age. I've been MS Soraya's family doctor and psychotherapist since 2016.
She had received a letter from the IAA regarding conclusion of her application that she met the requirements definition of refugee and that has been accepted to remain in Australia as a permanent resident.
It has been more than 10 months, though, that she has been waiting to receive the relevant paperwork. I believe that, She need a confirmation from your honour to be abie to use the Australian permanent residency entitlements such as; centrelink services access. Also, to be able travel to and from Australia, This is very important for her because, her eldest son, Mahan (29 years old) lives in Italy as he had fled from Iran 11 years ago. Her lawyer believes that her case has been finalised and she can access centrelink services.
She is suffering from extreme PTSD and she is not fit to work or study. She has no source of finance support at the moment and she is struggling day to day life. This specific finance hardship made her mental health condition extremely worse. I certify that, her request to have centreling payment is genuine and mindful.
I highly appreciate your help.”
[sic]
90In contrast to the reports to the plaintiff’s solicitors regarding the accident, in the letters written in support of the plaintiff’s visa application, Dr Delavari focussed exclusively on the plaintiff’s trauma in Iran and her psychiatric and psychological care since arriving in Australia. The correspondence from Dr Delavari between 29 August and 22 December 2022 also painted a bleak picture of the plaintiff suffering from extreme PTSD, with no capacity to work or study and struggling in day-to-day life.
91In fact, and consistent with the above, on 27 June 2022, the plaintiff was admitted to Casey Hospital in the context of an overdose and psycho-social stressors.[80] Further, in early 2022 the plaintiff was seen at Monash Health in Clayton at the Rheumatology Clinic, where the plaintiff was seen for generalised widespread pain “with her neck being a particular site of trouble currently”. A diagnosis was given at that time of fibromyalgia. The plaintiff had been seen at the Monash Health Rheumatology Clinic on 25 June 2019 with a relevant history as having been referred in 2018 with severe joint symptoms.[81] Perhaps not much turns on the attendances at the Rheumatology Clinic, other than to highlight the complex and many medical complaints for which the plaintiff has required treatment over many, many years, including with Dr Delavari.
[80]DFACB 219.
[81]DFACB 216.
92Regardless, the overwhelming flavour from a consideration of all of the evidence from Dr Delavari is that the plaintiff’s psychiatric condition is the one that overwhelms her. The whole of the evidence from Dr Delavari tends to a conclusion that the plaintiff’s psychiatric condition severely incapacitated her for a range of day-to-day activities. Therefore, even if I accept the evidence from Dr Delavari of a physical injury to the spine as caused by the accident, the issue of impairment and impairment consequences from such physical injury must be assessed by reference to the evidence from Dr Delavari of incapacity caused by the underlying psychiatric injury.
93Taken as a whole, the evidence from Dr Delavari is consistent with the evidence from Dr Hogan and Dr Kavianpour, namely that the plaintiff has a psychiatric condition that incapacitates her for a range of daily activity and for work.
The balance of the medical evidence
94Next, I shall set out the remaining evidence, commencing with the evidence from treating practitioners and then turning to the medico-legal evidence.
Dr Gavin Weekes
95In the early part of 2019, the plaintiff was referred by Dr Delavari to Precision Brain, Spine & Pain Centre (“Precision”), where she was first seen Dr Ali Mehr. There is no material from Dr Mehr. Dr Mehr then referred the plaintiff to Dr Gavin Weekes, a pain specialist at Precision. Dr Weekes first saw the plaintiff on 26 June 2019.
96Dr Weekes provided a report dated 5 March 2021 to the plaintiff’s solicitors.[82] That report set out the attendances on the plaintiff and treatment up to 18 December 2020. Dr Weekes obtained a history of the accident and the plaintiff’s symptoms since then. He arranged for the plaintiff to have a bilateral L3-L5 medial branch block on 29 August 2019, which he then described as “non-diagnostic”.[83] Then, on 6 January 2020, Dr Weekes performed a sacroiliac joint block. He described that, at review on 26 March 2020, the plaintiff complained of widespread body pain and the sacroiliac joint blocks had not helped. Because of persisting neck symptoms, he offered the plaintiff a right sided C7 nerve root block as a diagnostic procedure. That was ultimately performed on 17 August 2020. Dr Weekes described how the plaintiff had not gained a benefit from that nerve root block and that it was non-diagnostic.[84]
[82]PFACB 35.
[83]Ibid.
[84]PFACB 37.
97Dr Weekes then performed a right C6 and right C7 nerve root block with local anaesthetic and steroid on 7 December 2020. He records that, at review on 18 December 2020, the plaintiff described that the nerve root block did not offer her any long term significant benefit. By that stage, the plaintiff had been assessed by a neurosurgeon, Mr Hazem Akil, and Dr Weekes suggested she return to see him to discuss the option of cervical spine surgery.
98In that report, Dr Weekes said that, on the balance of probabilities, the accident was the sole cause of the plaintiff’s current cervical spine injury. He described ongoing MRI evidence of right C7 nerve root irritation.[85]
[85]PFACB 38.
99In his report, Dr Weekes obtained a history of the plaintiff working full time before the accident. He does not describe any history obtained by him of the plaintiff’s psychiatric health before the accident. In that context, he said he was not a psychiatrist and “any psychiatric influence on her clinical presentation and surgical outcome would be best served by an assessment of a psychiatrist.[86] But he opined that there was an organic basis to her pain.
[86] PFACB 36
100Dr Weekes then provided a second report dated 24 March 2023.[87] In that report, he noted a review on 19 January 2022 and that her condition had deteriorated. The plaintiff described increased pain and numbness particularly down the right arm and affecting both feet. He then reviewed her on 24 February 2022 with a repeat MRI scan of the cervical and lumbar spine.
[87]PFACB 40.
101Dr Weekes then diagnosed “chronic lower back pain secondary to lumbar spondylosis (facet arthropathy), cervical spondylosis (facet arthropathy), cervical spondylosis with evidence of right C7 nerve root compromise”. He said the transport accident was the sole cause of the injury diagnosed.[88]
[88]PFACB 41.
102Dr Weekes then opined that the plaintiff was completely incapacitated to return to the workforce. He noted ongoing restrictions for daily functioning. He said the prognosis was poor and the plaintiff was likely to continue to have some degree of pain and disability for the foreseeable future.[89]
[89]PFACB 42.
103The defendant highlighted the opinion from Dr Weekes to support its contention that the plaintiff did not have any or any significant ongoing physical injury to the spine. It highlighted how the several injections and nerve blocks performed by Dr Weekes were either non-diagnostic or did not produce any symptom relief, as evidence that the cause of any ongoing complaint of pain was a psychiatric condition and not a physical condition.
104On the other hand, the plaintiff submitted that Dr Weekes was qualified to treat a physical condition which is exactly what he had done by way of the injections and the like, coupled with support in his evidence for the proposition that the plaintiff should consider the option of spinal surgery.
105Ultimately, not much turns on which submission I accept. That is because in his most recent report, Dr Weekes supported a conclusion of an ongoing physical injury and impairment without making any reference to the plaintiff’s psychiatric presentation. In both of his reports, there is a lack of any history given to him of the plaintiff’s pre-accident psychiatric health. This results in an artificiality in his opinions to the extent that he was unaware of the impairment that was already caused by the plaintiff’s long-standing psychiatric condition. So, even if I accept Dr Weekes’ diagnosis of an ongoing physical injury, his evidence must be considered by reference to the relevant evidence of the plaintiff’s psychiatric health before the accident for the purposes of the identification of any ongoing impairment consequences.
Dr Hazem Akil
106Dr Hazem Akil is a neurosurgeon also in practice at Precision. He provided a report dated 11 April 2023[90] to the plaintiff’s solicitors which set out his treatment of the plaintiff, which spanned the period 28 May 2019 until January 2021.
[90]PFACB 46.
107Dr Akil noted that he had first met the plaintiff on 28 May 2019 on referral from Dr Mehr, which was a referral for low back symptoms. Dr Akil stated that the plaintiff’s symptoms were not classical for lumbar radicular pain and he did not recommend any surgical intervention.[91]
[91]PFACB 47.
108Dr Akil saw the plaintiff for a second time on 2 April 2020, again on referral from Dr Mehr, but for her cervical spine problems. At that time she complained of persistent and constant right arm pain, from the right side of the neck radiating down the arm towards the hand. Dr Akil noted that, because of COVID, he opted not to do a detailed examination but he did inspect the MRI scan which showed a mild disc prolapse at the level of C6-7. He said that, because of the distribution of pain and the MRI findings, “an anterior cervical decompression and fusion targeting the level of C6-7 is not unreasonable”.[92]
[92]Ibid.
109Dr Akil reported that he saw the plaintiff again on 11 August 2020 and then for a final time in January 2021. Because of the passage of time, he said he did not know the degree of disability that the plaintiff now had, but from his notes, her ability to do day to day activity when last seen was “severely limited”.[93]
[93]PFACB 48.
110Dr Akil reported that, after the last attendance, he referred the plaintiff back to Dr Weekes because “I did not see an indication for surgery in her case”.[94] It is unclear whether Dr Akil had changed his mind about surgery, or is referring to the fact that the defendant had denied funding for surgery. Ultimately, not much turns on that. At one point, Dr Akil obviously thought the symptoms in the plaintiff’s neck warranted putting the option of surgery on the table.
[94]Ibid.
Professor Richard Bittar
111Professor Bittar is a consultant neurosurgeon, also part of Precision. However, he saw the plaintiff for medico-legal purposes and not as a treating practitioner. Professor Bittar examined the plaintiff via telehealth on 15 May 2020 and produced a report dated that day.[95] He obtained a history of the accident and the onset of symptoms and the subsequent treatment. In respect to diagnosis, he opined that the plaintiff had suffered the aggravation of lumbar spondylosis with lower back pain and leg pain, as well as the aggravation of cervical spondylosis and a right C6-7 intervertebral disc prolapse with neck pain and right arm pain.[96] At that time, he said the option of C6-7 anterior cervical decompression and fusion would be quite reasonable.
[95]PFACB 75.
[96]PFACB 78.
112Professor Bittar expressed his opinion regarding the impact of the accident on the plaintiff’s quality of life. He said he expected the injuries and disability would continue to impact adversely on her social, domestic, and recreational activities and that she had been rendered totally incapacitated for employment.[97]
[97]PFACB 81.
113Professor Bittar then provided a supplementary report dated 28 June 2020[98] in which he was asked to comment on the appropriateness of surgery. He said that he considered the surgery proposed (by Dr Akil) to be appropriate and reasonable to treat the plaintiff’s neck problems.
[98] DFACB 59.
114Professor Bittar then reviewed the plaintiff in person on 28 April 2023 and provided a report of that date to the plaintiff’s solicitors.[99] On that occasion, he took a history of the plaintiff’s ongoing symptoms, treatment and conducted a clinical examination. He was also provided with a report from Dr Brendan Hayman, consultant psychiatrist, which he said merited some comment including the diagnosis by Dr Hayman of a somatic symptom disorder. Professor Bittar then expressed his diagnosis as follows:
[99]PFACB 96.
“Diagnosis:
In my opinion, Seyeehfakhri [sic] Soraya presents with the following:
1. Aggravation of cervical spondylosis with lower back pain.
2.Aggravation of cervical spondylosis with neck pain and right brachialgia (arm pain).
3. Chronic pain.
4.Psychological issues, including somatic symptom disorder, which are beyond my area of expertise.”[100]
[100] PFACB 100.
115Professor Bittar then said that given the persistent symptoms as well as the issues identified by Dr Hayman, he would not recommend cervical spine surgery.[101]
[101]Ibid.
116Professor Bittar then set out his opinion regarding restrictions from the accident related injuries as follows:
“6. As a consequence of the injuries sustained in the transport accident, is our client likely to be precluded or restricted in relation to activities involving:
(i) lifting, bending, twisting and stooping;
(ii) prolonged sitting, standing or walking;
(iii) lifting, bending, twisting and stooping;
(iv) neck flexion;
(v) prolonged computer use;
for the foreseeable future? And if so, to what extent?
As a consequence of the injuries sustained in the transport accident, your client is likely to be restricted in relation to activities involving:
(i) lifting, bending, twisting and stooping;
(ii) prolonged sitting, standing or walking;
(iii) lifting, bending, twisting and stooping;
(iv) neck flexion;
(v) prolonged computer use;
Details are provided in the body of the report. In addition, any repetitive or sustained neck flexion or prolonged computer use would cause a significant exacerbation of her condition. These effects are likely to continue for the foreseeable future.”[102]
[102] PFACB 102.
117Professor Bittar expressed the opinion that the plaintiff was unfit for any suitable employment. He said the plaintiff’s quality of life had been significantly affected. He also recommended obtaining an opinion from a psychiatrist in relation to the role of any psychiatric conditions in affecting those aspects of the plaintiff’s life.[103]
[103]PFACB 103.
118In a balanced opinion, Professor Bittar ultimately supported the diagnosis of an ongoing physical injury described by him as the aggravation of spondylosis in both the cervical and lumbar spine. But, in my view, appropriately, he also noted a contribution from chronic pain and psychological issues, including somatic symptom disorder. By that, I understand him to mean that both physical and psychiatric factors were involved in the plaintiff’s presentation.
119The evidence from Professor Bittar supports a conclusion of an ongoing injury to the spine as causally related to the accident, but his evidence must be considered for impairment purposes in the setting of the co-existent psychiatric condition.
Dr David Weissman
120Dr David Weissman is a consultant psychiatrist who examined the plaintiff at the request of the parties and provided a report dated 11 May 2020.[104] Dr Weissman noted on examination that this was a complex case and that the interview with the plaintiff was a difficult one. He said the main reason why it was difficult was because:
“the claimant was so emotionally distressed as well as intermittently distraught and anguished though much of that related to pre-existing and unrelated factors (with some contribution from the subject transport accident). Secondly, the claimant was very circumstantial, over inclusive, long winded and somewhat disorganised historian. At times I wondered whether she was psychotic, but she probably was not”.[105]
[104]PFACB 56.
[105]PFACB 58.
121I do not propose to set all of Dr Weissman’s report. It is comprehensive and considered. But under “Diagnosis” and “Discussion”, he repeated the fact that this was a complex case and the interview a difficult one and that it was almost impossible to obtain an absolutely complete history.[106] He said that, on the balance of probabilities, the plaintiff had and has suffered from severe, chronic, complex post-traumatic stress disorder and severe, chronic, recurrent major depressive disorder with anxious distress over many years, well before the subject transport accident and commencing in Iran.[107]
[106]PFACB 68.
[107]PFACB 69.
122Dr Weissman then said in terms of the subject transport accident alone, the plaintiff was suffering from a mild aggravation of severe, pre-existing/pre-morbid, complex, chronic PTSD and a mild aggravation of pre-existing/pre-morbid severe, chronic, recurrent major depressive disorder with anxious distress. He also said the plaintiff had some symptoms and features of a somatic symptom disorder/chronic pain disorder, which had been triggered by the accident.[108]
[108]PFACB 70.
123Dr Weissman summed up the situation by saying that the plaintiff’s pre-morbid psychiatric prognosis would have been extremely poor and unfavourable. He said that, nevertheless, based on history she provided, she was able to work full-time as a cleaner leading up to the accident and that was no longer the case.[109]
[109]PFACB 71.
124Dr Weissman provided a short supplementary report on 14 August 2020[110] in which he discussed his reservations about the plaintiff being able to consent to surgery, or recovery from any surgery, because of her psychiatric condition. He said, in what strikes me as a sound opinion, that unless any surgery was absolutely necessary and mandatory, the potential psychiatric consequences and sequalae would outweigh the potential benefit of any surgery.
[110] DFACB 56.
Dr Brendan Hayman
125Dr Brendan Hayman is a consultant psychiatrist who examined the plaintiff and provided a report to the plaintiff’s solicitors on 3 April 2023.[111] The defendant placed emphasis on the opinions from Dr Hayman to support its position.
[111]PFACB 82.
126Dr Hayman said that, at the outset, it had been a difficult assessment for a number of reasons. He noted the significant prior psychological issues and described the plaintiff as a very poor historian.
127Dr Hayman had been provided with much of the relevant, objective evidence. Having considered that material in the context of his examination of the plaintiff, he said she had significant pre-existing psychiatric issues.[112] He said the accident had caused an exacerbation of her pre-existing major depressive disorder and post-traumatic stress disorder. He said: “[s]he has also developed features of a Somatic Symptom disorder with predominant pain”.[113]
[112] PFACB 92.
[113] Ibid.
128Dr Hayman said that the plaintiff’s “main issues that preclude work related to her experience of pain and physical state. She acknowledged as much herself. This is informed by her Somatic Symptom disorder with predominant pain… her other psychological conditions would also impact in part”.[114]
[114] PFACB 93.
129Much of Dr Hayman’s opinion is like that expressed by Dr Weissman. It supports a conclusion that psychiatric factors are the cause of the plaintiff’s ongoing restrictions for domestic, social and employment activity. Further, the somatic disorder diagnosed by Dr Hayman is a condition that cannot be considered for a claim based on a physical injury, even in the Richards analysis, as it is a psychiatric condition that is the cause of the pain and impairment.
Associate Professor Peter Doherty
130Associate Professor Peter Doherty is a consultant psychiatrist who examined the plaintiff at the request of defendant and then provided a report dated 3 August 2023.[115] Professor Doherty was provided with the medical reports and clinical records relevant to the plaintiff. He then conducted a psychiatric examination. Having done so, he expressed the opinion that the plaintiff had a well-documented history of depression, traumatisation symptoms and anxiety before the accident.[116] He went on to say that there were very significant psychiatric problems prior to the accident and that in his opinion “there is no clearly documented worsening of her pre-existing psychiatric state due to the effects of the subject transport accident”.[117]
[115]DFACB 27.
[116]DFACB 39.
[117]DFACB 40.
131Associate Professor Doherty noted from the material given to him that in January 2019 the plaintiff had told her psychologist that she was hearing voices and was then on anti-psychotic medication. He then said that:
“It would appear to me that there was no current work capacity at that time, and there continues to be no current work capacity. In my opinion, the subject transport accident makes no significant contribution to the current incapacity for work”.[118]
[118]DFACB 41.
132Finally, Associate Professor Doherty said that the plaintiff emphasised pain but he himself had not diagnosed a pain related psychiatric condition, and, in his opinion, there was not one present.[119]
[119]Ibid.
133While the medico-legal psychiatrists use different language to diagnose the plaintiff’s psychiatric condition, there is a consistency in their opinions that the psychiatric condition is long-standing and one that produces considerable restriction to the plaintiff for daily activity and work regardless of any physical injury from the accident.
Mr Ian Dickinson
134Mr Ian Dickinson is an orthopaedic surgeon who examined the plaintiff at the request of the defendant on 29 June 2023 and then provided a report dated 7 August 2023.[120] Having reviewed relevant documents, obtained a history from the plaintiff and conducted a clinical examination, Mr Dickinson expressed the opinion that the plaintiff had multi-level degenerative disease in both the cervical and lumbar spine. He then said that “no injuries were suffered to Mrs Soraya’s neck or back in the transport accident”.[121] Mr Dickinson said that the prognosis from the physical injuries was good. In his report, he emphasised what he described as examination features of abnormal pain focussing and pain behaviour.
[120]DFACB 42.
[121]DFACB 52.
135The defendant did not rely on that part of the opinion from Mr Dickinson that there was no physical injury suffered in the transport accident. But it did rely on his opinion to the extent that he opined that there was no impairment or loss of function caused by any injury to the spine.
Consideration – serious or not
136Based on a consideration of the evidence as discussed, I conclude that the evidence taken at its highest from Dr Delavari, Dr Weekes and Professor Bittar supports a conclusion that the accident caused an injury to the plaintiff’s spine (perhaps mainly to the cervical spine), best described as the aggravation of pre-existing degenerative change. That evidence also supports a conclusion that the injury to the spine required treatment, including the several procedures performed by Dr Weekes, and continues to cause ongoing pain in the spine and restriction for heavier daily activity and work.
137The question to be answered is then whether the injury and symptoms, as identified, produce a “very considerable” consequence to the plaintiff.
138Pausing, it is possible for a plaintiff to have a “serious injury” even if some other condition or injury produces impairment consequences, or even a different “serious injury”. An obvious and extreme example would be an injury causing blindness for a person who had suffered an amputation of a limb. The amputation of the limb would not prevent a finding of a “very considerable” consequence from the blindness.
139But, ultimately, it is a consideration of the whole of the evidence in a particular scenario to determine if the claimed compensable injury produces a “very considerable” consequence.
140Therefore, to return to the facts of this proceeding, the starting point must be an assessment of how the plaintiff was functioning before the accident, to then determine if the claimed injury to the spine produced a “very considerable” consequence. For this exercise, the plaintiff’s evidence of her pre accident mental health was unreliable because of the objective evidence from hospital and medical records and reports.
141The objective evidence is that the plaintiff had a significant pre-existing psychiatric condition, which has persisted since the accident. The evidence disclosed that psychiatric condition to be extremely debilitating to the plaintiff and that before the accident she was frequently psychotic, unwell, and unable to function, as evidenced by extensive treatment and hospitalisation.
142Whether the accident caused an aggravation of that underlying psychiatric condition is a moot point, as the plaintiff does not rely upon any discreet psychiatric injury for the purposes of this proceeding.
143Here is perhaps the crux of the plaintiff’s case, namely that whatever the extent of her psychiatric condition, before the accident she had been able to do some work, namely the work for Mr Bayat. Even if I were to conclude it was not full-time, it was still a capacity for work that was lost because of the accident.
144But the evidence of the job with Mr Bayat must be considered in the context of the evidence from Dr Hogan and Dr Kavianpour, that the plaintiff’s mental health would have precluded her from employment regardless of the accident. She has required prolonged and ongoing psychiatric and psychological treatment and the prescription of medication, with inpatient psychiatric treatment before and after the accident. Her own evidence about that is unreliable and that makes it difficult to accept the extent of her work with Mr Bayat or that she would have been able to maintain a job with him, bearing in mind it is the plaintiff who bears the onus to prove “serious injury”.
145The medical evidence tends to the conclusion that the plaintiff led a relatively inactive life before the accident, punctuated with periods where she was extremely limited in her ability to engage in daily activity because of her underlying psychiatric illness. The whole of the relevant medical evidence supports a conclusion that I make, that the plaintiff’s psychiatric condition persists and continues to limit her ability to engage in daily activity or for work in any meaningful way.
146I do not accept that if the plaintiff had not injured her spine in the accident that she would have been able to continue working with Mr Bayat. She was psychiatrically very unwell shortly before and after that claimed period of employment.
147The evidence from Dr Hogan and Dr Kavianpour supports a conclusion that, by at least early 2019, the plaintiff was rendered unemployable because of her pre-existing and unrelated psychiatric condition. Because of that conclusion, I do not consider that the loss of the job with Mr Bayat, of itself, even if caused by the injury to the spine in isolation, caused the plaintiff to suffer a “very considerable” pecuniary loss consequence. The loss of the very limited capacity for work, in isolation or in combination with the pain from the physical injury might not be trivial but, on my assessment of the reliable evidence, cannot be said to be productive of a “very considerable” impairment consequence.
148The underlying psychiatric condition incapacitated the plaintiff for a range of social, domestic, and recreational activities. The evidence does not disclose any substantial change or alteration after the accident to the plaintiff’s pre-accident social, domestic, or recreational activities.
149The assessment of serious injury then falls to consider the plaintiff’s claimed ongoing pain from the spine injury. But the assessment of the level of pain from the physical injury is also complicated by the plaintiff’s psychiatric condition and how that condition may be causing symptoms form a somatic condition, as opposed to the amplification of pain the Richards sense.
150But, at the risk of repetition, there is no reliable evidence from the plaintiff as to her level of pre-accident function to draw any relevant conclusion about how, if at all, her life has been impacted by the accident, save for a conclusion that she has had complaints of pain affecting her spine since the accident, for which she has required treatment. In isolation, I do not consider that the experience of pain is of itself sufficient on the evidence in this proceeding to draw a conclusion of a “very considerable” consequence.
Conclusion
151After a consideration of the whole of the evidence, I conclude that the overwhelming cause of the plaintiff’s ongoing inability to work and to engage in daily activity is due to a psychiatric condition. The discrete psychiatric condition (whether related to the accident or pre-existing) cannot be considered for a claimed “serious injury”, as the plaintiff made no claim for “serious injury” based on a psychiatric injury.
152In summary, I consider that the cause of the plaintiff’s impairment for day-to-day activity and for work is because of her psychiatric condition and not the physical injury suffered in the accident.
153It is easy to have sympathy for the plaintiff. She has had traumatic experiences that are terrible and unimaginable. But sympathy does not equal “serious” without sufficient evidence to draw such a conclusion. She has had a traumatic life and has a long-standing psychiatric condition that the objective evidence revealed had impacted her life for many, many years. In that setting, the evidence does not disclose impairment consequences that are sufficient for a finding of a “serious” physical injury from the accident.
154Accordingly, the plaintiff has failed to establish “very considerable” impairment consequences from the accepted compensable injury to the spine, from any pain and suffering or pecuniary loss consequences, either in isolation or in combination. Therefore, the application shall be dismissed.
155I will hear from the parties as to any consequential orders.
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