Spiliopoulos v Transport Accident Commission

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-04870

HELEN SPILIOPOULOS	Plaintiff
by her Litigation Guardian DIMOSTHENIS SPILIOPOULOS
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 October 2011
DATE OF JUDGMENT:	14 December 2011
CASE MAY BE CITED AS:	Spiliopoulos v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2011] VCC 1455

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986, s.93 – serious injury – Petkovski v Galletti – impairment to the spine – cognitive impairment – psychiatric impairment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Hore-Lacy SC with	J N Zigouras & Co
Mr J Reardon
For the Defendant	Mr D Brookes SC with	Lander & Rogers
Ms M Tsikaris
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 3 January 1998 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”

3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the spine and cognitive impairment.
4          The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5          The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7          The application was also brought in relation to sub-paragraph (c), claiming a severe long term mental or sever long term behavioural or emotional disturbance or disorder.
8          The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
9          Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
10 The plaintiff also sought leave pursuant to Section 23A of the Limitation of Actions Act to bring common law proceedings. Consideration of that issue was deferred pending the determination of the Section 93 application.
11        The plaintiff relied on one affidavit and gave viva voce evidence. She was cross-examined. The plaintiff also relied on an affidavit sworn by her husband, Dimosthenis Spiliopoulos on 19 October 2011. The plaintiff’s general practitioner, Dr White, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
12        The plaintiff is nearly eighty, having been born in December 1932. In 1960, she immigrated to Australia and soon after married her husband, Jim. She has two adult children and three young grandchildren, aged four to six.
13        The plaintiff first worked as a factory hand in Richmond, where she stayed until the business shut down. From the mid to late seventies until about 1987, she worked full time as a process worker at Arlec, a company which made electrical equipment.
14        In 1985, while on her way to work, the plaintiff fell over on a bus when it stopped suddenly and threw her forward off a seat (“the bus accident”). As a result of the bus accident, the plaintiff suffered injury to her back and neck and she was forced to stop work.
15        The plaintiff deposed that in time, her back and neck pain settled and in about 1989 she felt well enough to resume work for three days a week in a nursing home.
16        As part of her duties, the plaintiff was required to lift large pots and foodstuffs in the kitchen and lift and sort big bundles of washing in the laundry. She coped well with these heavy duties.
17        The plaintiff enjoyed her work and also enjoyed talking to the girls at work and she made many friends there – confirming this was the situation when cross examined. She used to speak in English at work, and she can understand English.
18        Prior to the said date, whilst working, the plaintiff’s life was very full. She used to wake up early and take the train to work and in the afternoon, she looked after her grandchildren. The plaintiff did most of the shopping and performed all the household chores including baking her family Greek treats.
19        At that time, the plaintiff and her husband often went to weekend functions at the local Greek clubs or had friends over for dinner. In the little spare time she had, the plaintiff liked to tend to her vegetable garden or curl up and read a Greek book or newspaper.
20        In July 1997, the plaintiff stopped working at the nursing home at the age of sixty five having worked there for nine years.

Condition Pre-Accident
21        The plaintiff was cross-examined about her treatment from Dr Gouras before the bus incident. She agreed she suffered from “many dizziness” in July 1974, but not for a long time before that. She saw Dr Gouras, who gave her some tablets, and after that she was okay. She agreed she saw Dr Gouras for dizziness, headaches, and for her back problems in 1974, and also pain all over at that time. She agreed that backache lasted for quite some time and continued over the years he treated her. Over the years she suffered from dizziness, and she still does.
22        Over the years she also saw Dr Gouras for low back pain and right shoulder and neck pain. She thought she was given Panadol, and also Stemetil for dizziness.
23        In re examination, the plaintiff agreed the work at the nursing home was heavy and that she had a little bit of pain in her neck but did not have anything wrong with her back when she worked there.

The Accident
24        On the said date, the plaintiff was involved in an accident whilst a passenger in a car driven by her husband (“the accident”). She had no recollection of the accident and the days thereafter were a blur.
25        The plaintiff could recall waking up in Box Hill Hospital and then being transferred to Cedar Court Rehabilitation Hospital. She recalled being confused and having very bad pain over the left side of her face and into her head and suffering terrible chest and lower back pain.
26        The plaintiff deposed that since the accident she has seen many doctors but nothing has helped her. Dr Gouras treated her for about a year after the accident, and then she returned to the Surrey Hills clinic to see Dr White, whom she still sees. The plaintiff has also been treated at Dr White’s clinic for heart problems and high blood pressure and diabetes. She had a hernia operation last year.
27        The plaintiff could recall telling Dr White she fell over and broke her wrist, and another time she had a fracture in her chest.
28        When asked whether she had told Dr White about her spinal problems the plaintiff said that she told him “about everything”.
Pain
29        The plaintiff continues to suffer constant lower back and neck pain. Her back pain is a burning ache which runs from above her buttocks, around her right side and into her stomach.
30        The plaintiff’s neck pain is more piercing and strikes right between her shoulder blades and down towards the centre of her lower back. The pain becomes worse when she has been sitting or standing for too long or if she makes any sudden movement. The plaintiff has now learned to be very careful of what she does. The lower back pain wakes her every night and she has not had a good night’s sleep since the accident.
31        In re-examination, the plaintiff confirmed that compared to before the accident, her neck, back and left leg hurt a lot now. When she takes tablets, the pain stops a little bit but no altogether. Walking does not help her at all, even though the nurse suggested she do it for her back injury. She walks for a little bit of exercise.
32        The plaintiff also suffers a strange pain on the left side of her face. The area around her left eye has a constant pins and needles feel and often twitches uncontrollably. She has also suffered from double and cloudy vision in her left eye since the accident.
33        The plaintiff still has headaches on a daily basis. Often the ache becomes so bad that she has to lie down on the couch with a damp cloth over her face. She also suffers bouts of dizziness which regularly cause her to stumble and even fall. When the dizziness is at its worst, it causes her to vomit.
34        In re examination, the plaintiff said that she has been dizzy continuously since the accident. The dizziness after the accident was such that she could not even get up because she fell. She had dizziness before the accident, but it was less back then. She did not remember if she fell before the accident. The last time she fell was just before Christmas 2010 when she got dizzy and fell and hurt the side of her face.
35        The plaintiff has great difficulty concentrating and focussing on things. On some days she goes blank and is unable to follow what people are saying to her. On a number of occasions since the accident, she has become so confused and disorientated that her husband has had to remind her of where she is and what has happened to her. The plaintiff deposed it is hard to explain, but it is like the world now rushes by in fast forward.
36        The plaintiff’s memory is terrible. She has no recollection at all of long periods of time in the period since her accident. On a more day to day level, she always forgets things and has to rely on her husband to remind her.
37        The plaintiff has now become very anxious of cars and is always fearful of being involved in another accident.
38        As a result of the accident, the plaintiff’s life is very different and she is now very reliant on her husband. On bad days he has to help her dress, shower and even toilet. On better days she tries and does some light cooking but it is by no means like what she did before. She also tries to go shopping with her husband and while these outings usually cause her increased pain and confusion, it is better than being left on her own.
39        In 2004, the plaintiff went to Greece with her husband to visit her sister who was close to death. It was a very difficult trip. The pain in the plaintiff’s lower back and neck was aggravated by the flight and she became very confused by the different surroundings.
40        Since the accident, the plaintiff’s relationship with her family has deteriorated. She has become sad and moody in a manner which was not like her. When her boys bring the grandchildren over, she has to retreat to her bedroom to avoid the noise and confusion. If she does stay around, she often becomes incredibly frustrated by her inability to remember details and properly join in the conversation. She knows her grandchildren do not understand what has happened to her.
41        The plaintiff was cross-examined about her medication intake since the accident.
42        The plaintiff confirmed that at the time of her hernia operation in 2010, when asked by doctors what medication she was taking, she showed them Caduet, which she takes in the morning, Avandamet, which she takes twice a day, Metohexal, which she takes in the morning, and also Coversyl. She also takes two Lasix in the morning.
43        The plaintiff agreed they were the only tablets she was then taking. These tablets were for her diabetes, her heart, or high blood pressure. She still takes them, and had been taking them for a number of years before the hernia operation.
44        The plaintiff then said she was taking Panadol and had not stopped taking it before the hernia operation. She had most recently taken Panadol the morning of the hearing. She took it when her back hurt, and she took it all the time. She took Panadol with her when she went to Greece in 2004.
45        The plaintiff could not remember when she was given prescriptions for Panadol, but her husband organised the tablets. She got prescriptions frequently from Dr White. She did not remember a prescription in February or March 2010 noted by Dr White. The plaintiff denied that was the first prescription, and said he always gave her prescriptions. The plaintiff could recall taking Panamax when asked about a prescription in November 2010.
46        The plaintiff could remember being prescribed medication twice after she had come to court last year but could not remember what tablets were prescribed and did not know if it was in fact Oxycontin.
47        In re-examination, the plaintiff said that when she takes tablets the pain does not stop altogether, but it stops a little bit and then it comes back. She had Panadol in her bag that her husband had got for her. She takes both Panadol and Panadol Osteo two or three times a day, mixing them up.
48        The plaintiff was cross-examined about visits by a nurse from Dr White’s surgery in 2008 and 2009. She could recall these visits. On the first occasion her husband’s prostate operation was discussed, and the plaintiff was then awaiting a cataract operation.
49        The plaintiff remembered that at the time she was very dependent on her family and husband. She told the nurse she thought there was a high risk of her falling over. The plaintiff agreed that she told the nurse she was getting adequate sleep.
50        In cross examination, there was reference to the plaintiff’s affidavit in which she had deposed she had not had any sleep since the accident. When asked again what she had told the nurse as to her sleeping patterns, the plaintiff said she really did not remember. She could recall telling the nurse about problems with her eyes.
51        The plaintiff agreed the nurse visited a second time. She could recall the nurse telling her to do exercise every day, which the plaintiff at times did. The plaintiff agreed she told the nurse she enjoyed being with her family and visiting them.

Lay Evidence
52        The plaintiff’s husband, Dimosthenis Spiliopoulos (“Jim”), swore an affidavit on 19 October 2011.
53        Mr Spiliopoulos has been married to the plaintiff for forty nine years and he is her litigation guardian in the current proceeding.
54        On the said date, Mr Spiliopoulos was driving with the plaintiff in the passenger seat when they were involved in a significant crash. He believed he and the plaintiff both lost consciousness and they were taken to the Box Hill Hospital.
55        The plaintiff remained in hospital for about a week before being transferred to Cedar Court, where she remained for a further three weeks. The doctors at those hospitals told Mr Spiliopoulos that in addition to her lower back, neck and facial injuries, they were concerned that the plaintiff had also suffered some brain damage in the accident. This was no surprise to Mr Spiliopoulos given the plaintiff was very dazed and confused when he saw her in hospital.
56        When the plaintiff was discharged from hospital, she had great difficulty getting about. Mr Spiliopoulos and the plaintiff were provided with some home help for a period. The plaintiff constantly complained of lower back and neck pain, together with headaches, pain in her face and blurred vision, and he was very worried about her condition.
57        Mr Spiliopoulos took the plaintiff to see Dr Gouras, general practitioner, and has taken her to see many specialists since that time.
58        The plaintiff continues to suffer terribly as a result of her injuries. She continually complains to him that her lower back and neck ache. She is slow and cautious when she moves about. If her pain is bad, the plaintiff asks him to help her dress and shower and at times, help her on the toilet.
59        The plaintiff is unsteady on her feet and she often relies on his arm or a walking stick for support. There have been many times when he has had to help her up when she has fallen over. The plaintiff has told him that her balance is affected by her blurred vision and dizziness. The plaintiff also complains of terrible headaches. Almost every day she spends hours lying down with her face covered, moaning about the pain.
60        The plaintiff is now very forgetful, to the point where he often has to remind her of the names of the grandchildren and even what year it is. At times she becomes irritable. She is always vague to talk to and at times she makes no sense.
61        In his view, the plaintiff is a far different person to how she was before the accident. Prior thereto, she used to love cooking and always kept their home spotless. She was wonderful company and fun to be around. He could not have asked for a better wife.
62        The plaintiff used to play a very active role in the lives of her children and grandchildren and enjoyed the company of friends. Now that the plaintiff is so restricted, she does very little. He often sees her crying and she withdraws into herself.
63 The balance of Mr Spiliopoulos’ affidavit related to the s.23A application.

The Plaintiff’s Medical Evidence
64        Dr Molloy from Box Hill Hospital (“the Hospital”) reported on 20 January 2000 detailing the plaintiff’s attendance on the said date.
65        It was noted the ambulance report stated the plaintiff was a passenger in a medium to high-speed accident. The plaintiff recalled the accident and had no loss of consciousness. At the time the ambulance arrived at the accident scene, the plaintiff was conscious, alert and oriented, but she was complaining of blurred vision and chest discomfort.
66        Assessment at the Hospital saw the plaintiff complaining of blurred vision and sternal discomfort. She had a Glasgow coma score of fifteen, and she was complaining of diplopia in all directions. Examination of her chest revealed sternal bruising and tenderness, and in addition she had a minor cut to her right knee. A diagnosis of left lateral gaze palsy, sternal bruising, minor left elbow and right knee cuts, and generalised aches and pains, was made.

67        X-rays of the cervical spine, frontal bones, and sternum, revealed a step in the superior aspect of the body of the sternum of a fracture, but were otherwise normal. CT scan of the brain revealed a small acute subdural haematoma in the left parietal region.
68        The plaintiff was admitted under the surgical team at the Hospital for further management. Further x-rays revealed a compression fracture to the L2 vertebra which required symptomatic monitoring only before gradually mobilising with the aid of the physiotherapy team. She remained stable from a neurological point of view, and was advised to have ophthalmology follow up for the gaze palsy. She was assessed by Cedar Court and was discharged there for ongoing rehabilitation on 8 January 1998.
69        The plaintiff was followed up in the general surgical at the Hospital, where it was noted she was suffering ongoing aches and pains and discomfort on the right side of her body. She was last seen on 30 June 1998 when it was felt little more could be offered to her, and she was discharged into the care of her local doctor. She had been seen at the hospital for unrelated problems.
70        The plaintiff was transferred to Cedar Court Rehabilitation Hospital on 9 January 1998 from the Hospital.
71        Cedar Court reported that the plaintiff suffered a fractured sternum, an L2 crush fracture and soft tissue injuries in the accident. It was noted, importantly, she also suffered a small subdural haematoma and left sixth nerve cranial nerve palsy.
72        Cedar Court advised the defendant that it would like to proceed with a neuropsychological assessment whilst the plaintiff was an inpatient due to the plaintiff’s closed head injury. It advised the defendant on 17 June 1998 that the plaintiff and her husband had been receiving rehabilitation for their injuries. They attended for outpatient assessment and therapy from 5 February 1998 to 25 April 1998.
73        Dr Gouras examined the plaintiff on 9 January 1998 in relation to the injuries to her head and left eye, neck and shoulders, chest and lower back suffered in the accident. The plaintiff also felt shocked and lost her consciousness as well.
74        Dr Gouras reported that soon after the accident, the plaintiff developed diplopia from her left eye due to injuries in her sixth cranial nerve. She was treated conservatively, and eight days later transferred to Cedar Court where she stayed for two weeks.
75        On examination on 9 January 1998 the plaintiff complained of headaches and dizziness, pain over the left side of her head, and in her left periorbital area, diplopia from her left eye, pain over both shoulders and arms, pain in the lateral aspect of her chest, lower back pain, and pain in her legs.
76        The plaintiff also complained of insomnia, dizziness, headaches and feeling depressed. On examination she could hardly move around because of pain, and her movements were guarded. There was widespread tenderness. The plaintiff was rather depressed.
77        Dr Gouras reported in June 1999 that over the past fifteen months he had seen and treated the plaintiff on several occasions, and her condition had remained unchanged.
78        When last seen in May 1999, the plaintiff had pain in the left side of her head; diplopia; pain in her neck and shoulder areas; some pain over the upper aspect of her chest; and lower back pain and restriction of movement. She also complained of symptoms of post-traumatic anxiety and depression, expressed as headaches, poor concentration, poor motivation, an inability to cope with home duties, and insomnia.
79        In Dr Gouras’ opinion, the plaintiff, with a free past history of any injuries apart from hypertension and diabetes, sustained various injuries in the accident, and as a result of the accident and a rather prolonged loss of consciousness she had developed persisting and chronic symptoms of post-concussional syndrome, anxiety, and depression. At that stage he thought her prognosis for full recovery was rather pessimistic.
80        Ms Maggie Phillips, clinical neuropsychologist, carried out a neuro- psychological assessment on 5 February 1998.
81        On formal examination, the plaintiff was found to be fully oriented in time, person and place and could name most political figures correctly. Routine and non routine mental operations were performed accurately. Auditory verbal memory span was found to be in the below average range for her age, the latter finding being suggestive of some compromise in attentional function.
82        Recent memory and new learning revealed a performance on both verbal and non verbal tasks within acceptable limits for the plaintiff’s age.
83        The plaintiff’s performance on tests of general intellectual ability revealed her to be functioning within the low average range on tasks such as arithmetical problem solving and visio spatial planning and construction. It was felt those results were more consistent with the plaintiff’s estimated premorbid levels and there was no convincing evidence of concrete thinking or difficulties with generalisation.
84        Ms Phillips noted the plaintiff was still in a very early state of recovery and re- assessment at six months post injury was recommended.
85        Dr Stockman, rheumatologist, saw the plaintiff on referral from Dr Gouras in April 1998.
86        At that stage, the plaintiff complained of pain all over her body, particularly in her neck, left sided headaches and lower lumbar pain. There was also pain in both knees and shins and she also complained of double vision.
87        The plaintiff denied any similar problems in the past but she had taken medication for hypertension and non-insulin dependant diabetes.
88        On examination, the plaintiff had limited movement of her lumbar spine and was not able to lie prone because of pain. However, she had normal straight leg raising and no neurological abnormality in the lower limbs. There was tenderness over the right ribs and over the lower sternum. There was residual pain from the sternum and mid lumbar fractures. There was a left sixth nerve palsy and probable soft tissue damage to the neck and lumbar spine.
89        Dr Stockman noted the plaintiff’s blood pressure seemed to be extremely high.
90        Dr Stockman recommended further assessment at Cedar Court but was not sure whether ongoing physiotherapy was likely to help the plaintiff. He thought her musculoskeletal symptoms would gradually improve and recommended an x-ray if there was no such improvement within two or three months.
91        Dr Malios saw the plaintiff on referral from Dr Gouras in October 1998.
92        The plaintiff then continued to complain of recurrent headaches associated with visual problems, as well as an ache and pain to her sternum and the right side of her chest wall. She also had a constant ache and pain to her lower back with stiffness and restricted movement.
93        On examination of the plaintiff’s head and neck, there was altered sensation to light touch on the left side of her neck. There was tenderness on palpation of her chest.
94        There was marked tenderness on palpation over the mid and lower lumbar spine. There was restricted movement and altered sensation to light touch and pinprick in both legs.
95        Dr Malios thought, as a result of the accident, the plaintiff suffered concussion with radiological evidence of a left subdural parietal haematoma. Further, she had sustained a partial left sixth nerve palsy and possibly a left fourth nerve palsy. There was a significant soft tissue injury to the chest wall with radiological evidence of a fracture.
96        Dr Malios considered the plaintiff had a significant soft tissue injury to her lower back, with radiological evidence of a compression fracture at L2 and she had also aggravated a pre-existing lumbar disc degenerative disease.
97        Dr Malios thought the plaintiff had also sustained a significant Post Traumatic Stress Disorder (“PTSD”) with depression and anxiety.
98        Dr Malios examined the plaintiff for medico-legal purposes on 3 May 1999.
99        Again, he found altered sensation to light touch on the left side of the neck and tenderness on the palpation of her chest wall. Again, there was marked tenderness of the lumbosacral spine and restriction of movement. There was altered sensation to light touch and pinprick, mainly in the distribution of the right S1 dermatomes.
100       In addition to his previous diagnosis, Dr Malios also noted the plaintiff presented with clinical evidence of a right sciatica, mainly involving the right S1 dermatome, and he recommended a CT scan.
101       Dr Malios then thought the plaintiff was totally and permanently incapacitated for any suitable employment and she had a permanent partial disability with respect to her right elbow.
102       The plaintiff’s current general practitioner Dr White reported on 10 June 2009 that until receiving a request for medical information, he was unaware of the plaintiff’s involvement in the accident and her injuries relating thereto thus he was unable to comment on the impact of the injuries. He noted whilst they shared a robust therapeutic relationship, there were many instances where communication was difficult and he had seen the plaintiff having difficulty dealing with other health care professionals.
103       Dr White noted Dr Vowels’ April 2009 report and commented that the consultation outcome referred to therein was consistent with his experience.
104       Dr White did not believe that the plaintiff’s difficulties could be explained simply as misunderstanding English. Whilst a formal diagnosis had not been made, he thought it likely a degree of cognitive difficulty existed. He did not believe the plaintiff had the level of capacity to be able to comprehend complex legal instructions nor to be independent in her making choices.
105       In a report of December 2010, Dr White confirmed that he was unaware of the accident or injury until being told by the plaintiff’s solicitors. He noted he had been the plaintiff’s principal doctor since 2004. He had no recollection of being told otherwise by the plaintiff or her husband and no record of “nothing can be done about it”, i.e. the back injury.
106       Dr White advised the plaintiff does not normally volunteer information or seek treatment and she has been inclined to ignore, battle on or not want to engage in further treatment or investigation. There are also language difficulties in expressing and understanding which have provided further barriers to a good understanding of her past.
107       Dr White advised Astrix was prescribed as stroke prevention not for pain relief.
108       Dr White concluded the plaintiff had had some poor outcomes with her health. He had no reason to believe the accident was insignificant or unrelated to other health problems but this simply could not be documented or understood with his interactions or those of the clinic with the plaintiff.
109       In examination in chief, Dr White confirmed he first saw the plaintiff in 2001, and that she had been a patient of his practice since November 1977. He confirmed the contents of his report and also that he agreed with Dr Vowels’ comments.
110       Dr White described cognitive difficulties demonstrated in a clinical situation when organising treatment for the plaintiff. There had been many times when he had to provide her with a letter to a chemist or other health provider as he did not believe she could relay the necessary information. There were also many occasions when the plaintiff had ceased treatment and discontinued blood pressure medication despite his advice. Even with the assistance of her husband there had been difficulties.
111       In cross-examination, Dr White disagreed with Dr Vowels’ comment that the plaintiff’s English was quite competent as long as a slow pace was kept.
112       Dr White said he was “probably an over-recorder”, and he tended to note all that was relevant. He agreed that when he took over the plaintiff’s treatment in 2001 he had not noted that he had any problems getting a history from her, or that she was suffering from dementia or some other disorder, and he would have made a note to that effect if it was the case.
113       Dr White was taken through his practice’s notes from 1974. He confirmed the following entries - 15 July 1974 of headaches and dizziness, pain all over mainly the back, September 1975 backache persisting and July 1976 right trapezius pain and headaches.
114       The clinical notes recommenced in 1985. At that time, the plaintiff was complaining of a painful and stiff neck. A psychological overlay was noted in September 1985. The plaintiff complained of headaches in July 1985, as well as dizziness and back pain in September. In that month x-rays of her neck were taken.
115       In October 1985, voluntary rigidity on examination was noted. The plaintiff reported problems with sleep in December 1985, and in February 1986 she felt dizzy and had a sore neck. Complaints of this nature continued throughout the years leading up to 1989.
116       The plaintiff ceased treatment at the practice in October 1989, and resumed treatment in mid 1999.
117       In July 1999, the plaintiff complained of a feeling of dizzy vertigo with nausea, varied with postural changes. Dr White agreed that it was consistent that the dizziness could be somehow a complication of either hypertension and blood pressure and diabetes. That month he made a provisional diagnosis or a differential diagnosis of labyrinthitis.
118       Dr White agreed that people suffering from high blood pressure or heart failure in advancing age or in combination could become confused and forgetful. He agreed the diagnosis of hyperglycaemia explained all the plaintiff’s symptoms very easily in terms of vertigo and other matters.
119       There was a history of a fall in November 1999 where the plaintiff fractured her thumb. There was no mention of spinal pain at that time.
120       In June 2003, there was a reference to extremely high blood pressure, glucose level.
121       In November 2003, there was a note of a fall with the plaintiff hurting her rib cage. There was no mention of any spinal problems.
122       The first prescription of painkilling medication was Panadol on 9 March 2010. The plaintiff was also prescribed Panadol after the hernia operation.
123       The next reference to any painkillers was 14 January 2011, when Panadol Osteo and OxyContin were prescribed by Dr Rixon. The level of Oxycontin was later increased from ten to twenty milligrams and ceased in April 2011.
124       There was an injury to the left shoulder in April 2011, but no suggestion of any aggravation of spinal pain.
125       On 30 May 2011, Dr White noted still further dizziness and no further falls. He also noted no speech or cognitive change which he explained meant in addition to what was pre existing.
126       In re-examination, Dr White confirmed the plaintiff was not a person who complained readily, easily or quickly. He recounted how she did not complain about problems with her sight and he had to question her in that regard. He denied she was not the sort of person he would expect to volunteer her history or problems. She had not complained of pain in her neck and back until recently. He has not examined her back. He only found about back pain related to a car accident after legal proceedings commenced. Since having found out, he had not arranged for any tests or specialist referral.

Medico-Legal Evidence
127       Mr James Calvert, neurosurgeon, examined the plaintiff on 22 July 1999.
128       The plaintiff told him she had no memory of the accident, and remembered waking three hours later at the Hospital, where she had pain everywhere, but worse down her left side.
129       After a period of inpatient care at Cedar Court, the plaintiff then had home help for two months, by which time she was managing better, although she still had a lot of pain, mainly on her left side, including her face and neck, and she had almost daily left sided headaches and midline lower back pain.
130       On examination, the plaintiff’s memory and concentration were still poor, and she had almost daily left sided headaches. She had problems with depression, and at night woke with fear, although she did not know why she was frightened.
131       On examination, the plaintiff looked depressed and walked slowly with a normal gait. She complained of tenderness in the head and neck. Spinal movement was restricted. The plaintiff complained of dizziness during testing. She declined to get on the examining couch. She complained of marked tenderness of the back.
132       Mr Calvert noted it was difficult to ascertain the true range of back movement because of the plaintiff’s complaints of dizziness, but he noted the true range was probably a little more than recorded.
133       In Mr Calvert’s view, the plaintiff apparently suffered a closed head injury with loss of consciousness for an uncertain but probably short time, a brief period of pre injury amnesia, and a longer period of post injury amnesia, possibly about three hours. He noted her subsequent poor short term memory and concentration were consistent with such an injury, and it was likely she had suffered an impairment which was unlikely to make more than slight further improvement.
134       However, Mr Calvert believed the plaintiff was also suffering from a marked psychological disturbance following the accident, including depression, and her true intellectual impairment was being exaggerated by this. Further, he believed the psychological disturbance was aggravating and prolonging the effects of her physical injuries.
135       In his view, the plaintiff’s dizziness could be a true effect of a head injury on the inner ears, which were concerned with balance, although he believed it, like her headaches, was exaggerated by psychological factors.
136       Mr Calvert thought the best treatment was likely to be an earliest possible settlement of litigation. He thought the plaintiff was presently totally incapacitated for any work. He allowed an impairment in relation to cognitive problems and spinal impairment.
137       Mr Robin Williams, orthopaedic surgeon, examined the plaintiff in November 1999.
138       The plaintiff then told him she had double vision, lower back pain, pain in the right shoulder and upper part of the chest wall, mainly on the right, from the accident. She also said both knees were sore.
139       Mr Williams was told that prior to the accident the plaintiff did not have any of the symptoms with which she now presented and that she rarely saw her doctor.
140       On physical examination, Mr Williams noted that there was a restricted range of movement compared to a much freer range when the plaintiff was conversing with the interpreter. Similarly, there were inconsistencies between the restricted movement of the lumbar spine on examination and at other times.
141       Mr Williams diagnosed a closed head injury, presumed fractures of the sternum and second lumbar vertebra and a probable a soft tissue injury in the region of the left shoulder and lumbar spine which he thought were consistent with the trauma experienced.
142       In Mr Williams’ view, there was a considerable non organic component to the plaintiff’s sense of illness reflected in the rather non specific nature of her symptoms and observations made of her at the time of examination. He did not consider she required any specific treatment. From a musculoskeletal point of view, he believed she had reached a stable state.
143       Mr Williams thought the plaintiff’s injury had not produced any lasting pathological change that was likely to deteriorate in the future. He considered any increase in pain in her lower back would be more likely due to the natural process of aging rather than the injury.

144       Mr Williams reviewed the films of the plaintiff’s lumbar spine taken at the Hospital on 4 January 1998. He noted they demonstrated she suffered a fracture of the superior aspect of the body of the second lumbar vertebra and that there was a less than twenty five per cent compression of the body of that vertebra.
145       The plaintiff was examined by psychiatrist Dr Piperoglou in September 1999.
146       The plaintiff told him she was then taking Digesic tablets daily for pain. She was suffering from pain in her back, both legs, around the knee and right arm. She had left sided headaches that were there almost all the time. She advised of waking up with fright, thinking of car accidents, although she could not remember her own accident. She had difficulty sleeping, and complained of bad dizziness with double vision. She told him she forgot a lot and her memory was not like it used to be.
147       The plaintiff told Dr Piperoglou there were no past accident or compensation claims.
148       In his view, the plaintiff presented as a depressed looking woman who was preoccupied with her pain and memory problems. Her attention and concentration was poor. She had great difficulty performing serial 3 subtractions from 31, which was a test of concentration. Although she made no errors with this test, she was very slow in making the calculations. There was no evidence of delusions, hallucinations or thought disorder.
149       From a psychiatric point of view, Dr Piperoglou thought the plaintiff had a mixed anxiety depressive reaction superimposed on a mild organic brain injury. In his opinion, the psychiatric injury was mainly a primary psychiatric impairment, as the plaintiff was reacting adversely to a brain injury with subsequent cognitive defects which she found both stressful and disabling.
150       Mr Simm, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on 11 October 2001.
151       The plaintiff then complained of right sided lumbar pain, which did not radiate into the legs. She had pain in the right side of her neck and over both shoulders. The left side of her head and face ached almost constantly. She had dizziness and headaches almost constantly.
152       The plaintiff presented on examination as slow moving and depressed, and focused on her physical condition. The plaintiff was noted to move her head and neck without undue restriction when communicating with the interpreter and the plaintiff had no problem taking off her jumper.
153       Formal examination of the various symptomatic areas was characterised by tentative guarded movement and complaints of pain. There was associated pain behaviour with facial grimacing. There was global weakness. Neurological examination of the upper limbs was normal, although movement was slow, and there was diminished sensation involving the entire right upper limb.
154       Movements of the neck were associated with the plaintiff stating she was feeling extremely dizzy and she had very limited movement. Similar comments were made in relation to back examination.
155       Mr Simm concluded the plaintiff’s chronic and apparently severe right lumbar pain was consistent with a wedge compression fracture of the L2 vertebral body established by x-ray. Further, her persistent chest pain and tenderness was consistent with post traumatic changes as a result of the sternum fracture.
156       Mr Simm commented that the plaintiff’s response to physical examination would suggest all of the injuries had now been complicated by a disabling pain syndrome, and evidence of substantial emotional disturbance confirmed in Dr Piperoglou’s report, had been amplified by the pain syndrome and emotional disturbance. In his view, the marked restriction of movement due to voluntary restriction was secondary to apprehension and pain, rather than due entirely to the physical effects of the injuries sustained.
157       Because of the plaintiff’s response to physical examination, Mr Simm regarded an AMA impairment assessment to be of limited value.
158       Mr Mangos, general surgeon, examined the plaintiff in November 2007. He noted the plaintiff had no previous injury or accidents, but that she was type 2 diabetic, and she suffered hypertension.
159       The plaintiff was then taking Digesic, some Stemetil when she felt sick, and also Aropax anti-depressant. She stated she felt dizzy, and on one occasion fell. The main symptoms had settled to a chronic pain and stiffness of her back especially, also of her neck. She had regular headaches, and had difficulty with memory and concentration.
160       Mr Mangos noted the plaintiff appeared to have problems either hearing or understanding, and after persistence, she was able to answer questions either simply or not at all. She obviously had difficulty with her memory, especially of the accident and thereafter. Her memory was only reasonable for other things.
161       On examination, there was a definite restriction of cervical and right shoulder movement. There was marked restriction of the lumbar spine, and tenderness over the whole of the paravertebral lumbar muscles. The plaintiff was able to sit on the couch with extended legs.
162       Noting Dr Stark and Dr Weissman’s views, Mr Mangos stated the plaintiff had definitely suffered permanent organic injury. He diagnosed severe back injury with a crush of L2 vertebra causing chronic back pain, aggravated spondylosis, right shoulder tendonitis, a fracture undisplaced of the sternum, a subdural haematoma of the left brain which had gradually subsided, as had sixth cranial nerve damage and double vision. He also thought she had obviously suffered severely psychologically.
163       Mr Mangos considered the plaintiff’s prognosis was very poor, noting she had withdrawn and led a very simple life. He thought conservative treatment only was necessary, with support on a daily basis and Digesic for pain, Stemetil for dizziness, and Aropax for depression. He thought the accident had made the plaintiff totally incapacitated for work, and that incapacity was permanent.
164       In April 2009, the plaintiff was re-examined by Mr Mangos.
165       On that occasion, he thought the plaintiff’s condition really had deteriorated through loss of mobility and severe psychological changes of anxiety and depression. He thought she was totally and permanently disabled for all forms of regular activity.
166       Dr Kaplan, psychiatrist, examined the plaintiff in June 2009. The plaintiff told him she was constantly depressed and she had lost self confidence. She suffered from insomnia, and had difficulty with short term memory.
167       On mental state examination, the plaintiff appeared to be visually impaired, walking with the aid of a walking stick. There were no difficulties encountered in establishing rapport, but the plaintiff appeared to lack patience.
168       The plaintiff’s thinking was characterised by a preoccupation with her physical injuries and disabilities. She appeared depressed and withdrawn, and expressed feelings of despair and hopelessness. Her insight appeared unimpaired.
169       Dr Kaplan did not attempt to assess the plaintiff’s cognitive function. He noted she seemed to have difficulty recalling some recent and distant events, although this difficulty with recollection appeared patchy and may have been related to her general frustration, impatience and exasperation.
170       Dr Kaplan’s formal diagnosis was probably that of an adjustment disorder with mixed anxiety and depressed mood. In his view the prognosis for the condition would be determined by the outcome of the plaintiff’s physical condition. He also thought as a result of the accident the plaintiff had developed phobic anxiety in relation to car travel.
171       With regard to her cognitive function, Dr Kaplan was not able to offer an opinion with regard to the possibility that she was suffering from a dementing process. He thought neurological opinion was relevant in that regard.
172       The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in July 2009.
173       On examination, the plaintiff complained of mild impairment of concentration and memory; constant neck pain with intermittent generalised headache, the neck pain fluctuating and being mild during the day and moderate at night; constant nagging low back pain, usually of moderate severity but with quite severe flare ups intermittently at night; a constant ache in the right buttock, thigh, and calf, of mild to moderate severity; and depression.
174       The plaintiff told Mr King that over the last ten years she had continued to be worried by headache, neck pain, and backache, associated with some right sided sciatica. The symptoms fluctuated but never settled.
175       On examination, there was marked limitation of neck movements by pain and spasm, with approximately one third of normal range of movement; marked limitation of all lower back movements by pain and spasm, again approximately one third; straight leg raising forty degrees bilaterally limited by back spasm; and there was no neurological abnormality.
176       Mr King commented, accepting the accuracy of the plaintiff’s clear and detailed history confirmed by other reports, his overall assessment was that the plaintiff had previously been fit and active, and was apparently involved in a major motor vehicle accident. Mr King thought it must be assumed she was exposed to a potentially severe degree of generalised trauma, and that would be consistent with a significant closed head injury, injury to the cervical discs and associated ligamentous structures at multiple levels (presumably superimposed upon pre existing but symptomless degenerative change) and a fracture of the sternum. He thought the plaintiff had been left with chronic quite severe neck pain, headache and backache, which in someone of her age had produced an overall impairment of function of a quite marked degree.
177       In Mr King’s view, the plaintiff’s depression and anxiety seemed to be an understandable side effect from chronic disabling neck and back pain. He could find no evidence of exaggeration, and no evidence of a significant psychological overlay. His assessment of the plaintiff’s spinal problems was based upon what he perceived to be the underlying organic injury sustained to the spine at the time of the accident.
178       From a practical point of view, Mr King thought the plaintiff was chronically incapacitated to a moderately severe degree. He considered symptomatic treatment only was indicated.
179       Dr Vowels first reported in April 2009 after the plaintiff was referred to him for a neuropsychological assessment by her solicitors.
180       Dr Vowels reported the plaintiff was able to give a coherent account of her marriage and early life in Richmond. She became more distressed when she discussed the accident, and, rather than responding to particular questions, commenced a monologue about how bad her eyes were, how painful her neck, back, and right shoulder were, and how she was sick and could not do anything. When Dr Vowels attempted to have the plaintiff undertake some tests of memory and cognition, the plaintiff insisted she could not see anything, and could not hear well, and was continually dizzy and in pain.
181       As the plaintiff’s distress was genuine and increasing, Dr Vowels decided it was not appropriate to continue the testing. She was interested that the plaintiff seemed to remember the way out of the rooms quite well, and seemed confident in negotiating her way through a garden path to the car.
182       Dr Vowels concluded, although she had spent an hour and a half with the plaintiff and attempted activities of interview and assessment, she was unclear as to the diagnosis, and, even with additional ophthalmological information, she did not find it easy to understand the extent of the plaintiff’s visual difficulties and their severity.
183       Dr Vowels wondered whether the plaintiff may have an additional problem such as early dementing process, or a psychiatric disorder, leading to her overwhelming reaction to her physical pain and visual limitation and general feelings of distress. She was convinced that the plaintiff’s pain and limited vision was valid, but could not understand the extent to which it limited her life. She would be concerned that the plaintiff would require a litigation guardian.
184       Dr Vowels carried out an assessment on 6 July 2009.
185       On that occasion, Dr Vowels noted the plaintiff was somewhat confused as a historian, but was able to give a reasonable account of her early life.
186       Dr Vowels concluded, after testing involving a fairly modified sampling of cognitive abilities which could be adequately translated and did not rely on visual abilities, that the plaintiff was currently demonstrating several significant cognitive disabilities. In Dr Vowels’ view it was more likely her disabilities were a result of a head injury suffered in the accident. As it was now more than ten years since that trauma, it was probable that all recovery that was possible had occurred, and hence there was going to be an ongoing disability which may interact with the normal aging of cognitive abilities and prevent independent living, in a way which would not have occurred had the plaintiff not suffered the closed injury leading to the subdural haematoma.
187       Within the area of memory and attention, the disabilities noted were a generalised slowing of all aspects of information processing, and some reduction in the efficiency of working memory as well as significant reduction in short term recall.
188       In her view, the plaintiff was showing evidence of significant cognitive impairment involving memory and executive function, which was likely to be the result of damage to the brain in the frontal regions. That was in addition to the plaintiff’s visual impairments and her apparent ongoing vertigo.
189       Dr Vowel’s diagnosis was that the plaintiff had an acquired brain impairment involving the central regions of the brain associated with memory, and the frontal regions associated with executive function, in addition to her negative psychological issues resulting from the impact of the cognitive and physical problems over the years since the accident. She considered it unlikely the plaintiff would have any further recovery of her cognitive disabilities.
190       Dr Hjorth, consultant neurologist, saw the plaintiff in August 2009. Dr Hjorth noted that after the accident the plaintiff was unconscious for twenty four hours.
191       On examination, the plaintiff’s problems were low back pain and a painful right leg, pain in the neck, poor sleep, and, when asked about memory and concentration, she said she could not remember anything.
192       Examination was difficult, with the plaintiff initially saying it would be impossible for her to get onto the couch because it was too high, but she was eventually helped up there. She gave the correct date, but could not remember the day of the week or the month or the year. She gave an incorrect sequence of the days of the week, and said she had three children.
193       Dr Hjorth attempted to give the plaintiff psychological screening tests, but this proved impossible. She could not see things. He gave her five words to remember, and on the first trial she could remember nothing, but when he repeated them she got one, and then after he repeated them a third time she got a second one, but by this stage had forgotten the first one. She could not recall her birth date, and she did not know the date of Christmas. She said she had a court case, but did not know what it was about.
194       Dr Hjorth concluded it was impossible to establish any of the details that would be important for assessing the plaintiff such as the period of post traumatic amnesia. He noted that one of the issues in the present case was whether the plaintiff had dementia. She agreed she had poor memory, and said it was getting worse. If she had poor memory as a result of the head injury, Dr Hjorth noted it would not be expected to be progressing at this stage.
195       Dr Hjorth commented that an attempt to establish the plaintiff’s intellectual function failed dramatically. That was not simply dementia but rather because she had a process called pseudo dementia, or Ganser Syndrome. He noted there was debate as to what that syndrome means. It could sometimes be due to organic brain damage, but it was often secondary to a kind of psychiatric disturbance, and sometimes it was considered that it was actually due to malingering but he had found no evidence of malingering in the plaintiff’s case. Doing an AMA assessment was difficult, and often involved some degree of guesswork or judgment, but in the plaintiff’s case it was greater than usual. Dr Hjorth concluded his questioning indicated the plaintiff had no concept of the court case. He thought of course it was possible this failure to understand was related to pseudo dementia, and if that was the case, then it might make a dramatic recovery sometime between now and the court case. However, as things presently stood, he would have to say the plaintiff did not have the capacity to instruct solicitors or make decisions about legal matters.
196       In a supplementary report of October 2009, Dr Hjorth confirmed the dominant thing in the patient’s presentation was her mental state, and it was very hard to know how this should be classified and treated. If this was abnormal function due to depression it should be handled by a psychiatrist. If it was due to loss of intellectual functioning due to brain damage, then it should be handled by a neurologist. If it was malingering, it did not attract a disability.
197       Dr Lewis, psychiatrist, originally saw the plaintiff in June 1999. At that time he thought she was suffering from post-traumatic anxiety and depression to a moderate degree directly related to the accident.
198       Dr Lewis saw the plaintiff for medico-legal purposes in April 2009.
199       At that stage, the plaintiff said she had headaches all the time and got dizziness. She had problems sleeping. She kept seeing the car crashing. She had problems with her memory and concentration, and had lost complete confidence. She said she coped in a crowd like a supermarket, but lost her way if she went out. She did not know where to go, and had panic attacks.
200       The plaintiff told Dr Lewis that before the accident she had never had a car accident or work accident at all, and had no major illnesses. She had a little bit of diabetes, and was taking tablets.
201       On physical examination, the plaintiff walked in quite easily and sat in a chair quite comfortably. She related quite well directly to Dr Lewis and via the interpreter, and gave a good but extended account of her problems.
202       The plaintiff had a somewhat reduced range of emotions. Her concentration and attention were fair. Her memory seemed to have considerable gaps in it, more in short term than in long term. Orientation was good, and attention and concentration were fair. IQ was average, and there were no psychotic features.
203       Dr Lewis diagnosed moderate to severe post traumatic neurosis with clinical depression, anxiety and phobias, with strong features of post-traumatic stress disorder. He considered the plaintiff’s condition had substantially stabilised.
204       Dr Lewis was subsequently provided with Dr Vowels’ April 2009 report. Having read that report, Dr Lewis commented it could well be possible that there appeared to be a clash of cultures. He noted that he made sure there was an interpreter to take the plaintiff through carefully. In his report he saw no signs of dementia at all, and, based on the fact that her husband accompanied her and the interpreter was culturally attuned, he was able to get a quite good history on examination from the plaintiff. He did not change his diagnosis.

Investigations
205       An x-ray of the cervical spine, lumbar spine, facial bones and sternum was carried out at Box Hill Hospital on 5 January 1998.
206       It was reported there was no fracture of the facial skeleton. There were degenerative features present in the cervical spine. There was a step in the superior aspect of the body of the sternum consistent with a fracture at that level.
207       There was a compression fracture of the superior end plate of the body of L2. Degenerative features only were seen elsewhere.

The Defendant’s Medical Evidence
208       In an Eastern Health, Health Questionnaire dated 30 September 2008, the plaintiff acknowledged a previous history of diabetes.
209       The plaintiff had a colonoscopy at the Hospital on 30 September 2008.
210       When the plaintiff had hernia surgery through Eastern Health in 2010, her medication at that time was Caduet, Avandamet, Metohexal, Coversyl and Lasix. The plaintiff answered “no” to anti-inflammatories or aspirin on a Hospital document.
211       In May 2008, nurse, Ms Sue Kean, on behalf of Dr White, reported in terms of the plaintiff’s over seventy five health assessment.
212       Ms Keane noted the plaintiff stated she was obtaining adequate sleep and that independent mobility was very difficult due to the high risk of falls. There was discussion about how the plaintiff would manage when her husband was in hospital for his prostate operation.
213       It was noted the plaintiff’s eyesight was very limited and there was very little she was able to do around the house because of it. Ms Keane recommended the plaintiff consider home help through the council.
214       Ms Keane reported following a further visit in July 2009. She noted memory testing was within normal parameters and depression was not evident. It was noted that the plaintiff had adequate social support from both family and friends, and she enjoyed being with family and visiting them.
215       The Hospital reported in June 2010 that the plaintiff underwent an open incisional hernia repair on 1 June. It was noted since discharge the plaintiff had been doing well. She was having minor pain three weeks after the operation which had been managed well with Panadol.

Medico-Legal Evidence
216       Dr Richard Stark, neurologist, assessed the plaintiff on 18 October 1999.
217       At that time, the plaintiff’s ongoing complaints were pain around the left eye and forehead, low back pain, double vision, problems with memory and concentration, painful right leg worse than the left, feeling dizzy every day and also there might have been a partial reduction of sense of smell.
218       The plaintiff denied any past history at all and in particular, denied previous back injuries or headache.
219       Dr Stark noted that the plaintiff performed in an extraordinary manner on simple tests of cognitive function. Further, in physical examination, she indicated some difficulty in co operating with certain tasks.
220       Dr Stark noted it appeared the plaintiff did suffer a significant head injury with a period of loss of consciousness and a period of post traumatic amnesia which may have been somewhere between fifteen minutes and an hour or so. It was said that the plaintiff suffered a subdural haematoma and a sixth nerve palsy.
221       Dr Stark noted there was no evidence of the palsy in looking directly at the plaintiff’s eye movements on examination. In his view, the diplopia the plaintiff claimed was still present with one eye covered would not represent the effect of a sixth nerve palsy.
222       Dr Stark thought the plaintiff’s performance on simple tests of cognitive function was indicative of a major non-organic component with a Ganser Syndrome characterised by approximate answers to even the most simple of questions. Dr Stark noted the plaintiff’s inability to indicate the number of legs possessed by a dog or a cow was typical of this sort of problem.
223       Dr Stark thought it was not possible to say whether the disturbance was occurring at a conscious or subconscious level.
224       Dr Stark noted the plaintiff’s performance on physical examination included a number of grossly non organic features, such as being able to detect movements of her knees as great as ninety degrees. She was able to walk normally and stand with her eyes closed.
225       Dr Stark noted it was possible there was some underlying organically based cognitive difficulty but the quantification of that was extraordinarily difficult given the functional overlay.
226       On the basis of the type of injury suffered and the plaintiff’s performance on neuropsychological testing in February 1998, Dr Stark thought it reasonable to conclude that the organically based component was a minor one. In this regard, he allowed a five per cent whole person impairment or at the very most, ten per cent.
227       Dr Stark considered the organic aspect of the plaintiff’s condition should be considered stable and he suspected that the diplopia was now entirely non organic. Further, he found no objective evidence of true vertigo on examination.
228       Dr Stark was provided with Dr Weissman’s report and noted that Dr Weissman agreed that only a small part of the plaintiff’s apparent cognitive difficulties were the result of brain injury.
229       Dr Stark re-examined the plaintiff in October 2009.
230       The plaintiff then told him she had become worse since the previous examination.
231       The plaintiff told him of chest pain, pain in the neck, pain involving the arms and legs and in fact pain everywhere. She complained of right leg weakness and restriction in activities of daily living. She told Dr Stark the vision in her left eye had deteriorated and she could not see anything with it all. She also advised her memory was poor.
232       The plaintiff showed Dr Stark the medication she was taking namely Caduet, Avandamet, Coversyl, Betaloc and Lasix.
233       Again, Dr Stark found no evidence of the sixth nerve palsy. On cognitive testing the plaintiff performed a little better than previously. He noted her performance on simple tests of cognitive function was unusual and there were elements that suggested a non organic component and in effect a Ganser Syndrome, noting that such elements were prominent when the plaintiff was examined by Mr Hjorth, neurologist, in August 2009.
234       Overall, Dr Stark’s impression was the plaintiff probably did suffer a head injury of mild but not a trivial degree and that the great bulk of her ongoing difficulty had been of a non organic type. He noted from the information with which he had been provided, the plaintiff had some non organic features after a WorkCover claim in the 1980s, commenting that this may be a consistent way the plaintiff reacted to injuries.
235       Noting Dr Vowels’ report, Dr Stark thought it fair to say the plaintiff’s performance on cognitive testing was very poor. Dr Stark did not believe that it would be possible for Dr Vowels to say confidently that the problems were organic in type.
236       In conclusion, Dr Stark thought the plaintiff suffered a minor closed injury but her ongoing symptoms were for the most part unrelated to any organic brain injury from the accident.
237       Dr Stark thought the findings on examination would suggest that there was a prominent psychological or non organic component to the plaintiff’s current complaints. He noted there were inconsistencies between the findings on examination and the complaints, in that the examination findings would not easily be explained by organic neurological injury. He thought no further treatment was required from a neurological aspect and that a psychiatrist should comment on whether the psychiatric element of the plaintiff’s condition genuinely restricted her.
238       Dr Stark was provided with Mr Hjorth’s report of October 2009 and WorkCare documents relating to three separate injuries, with a fall in August 1985, a claimed hearing impairment and a burn to the left hand in 1990.
239       Noting Mr Hjorth’s comments and allowance under the Guides, assuming the plaintiff’s problem was essentially organic, and noting cases like the plaintiff’s were extraordinarily difficult, Dr Stark considered the figures provided by Dr Hjorth were the maximum figures that could be reasonably considered and at the end of the day, their opinions were not greatly different.
240       In November 2010, Dr Stark was provided with medical records from the Surrey Hills Medical Centre and from Dr Gouras.
241       Dr Stark noted Dr Gouras’ notes from 1998 to 1999 confirmed the major concern at that time was diplopia, which contributed to the plaintiff’s left sixth nerve palsy. Dr Stark noted that indicated the likelihood that there was a significant blow to the head and some of the reports referred to a small subdural haematoma. Dr Stark noted those records therefore tended to support his conclusions.
242       Dr Stark noted that Dr Gouras’ file did not strongly suggest there was a significant cognitive impairment as a complaint at that time. Further Dr Stark noted the plaintiff was able to give Dr Malios a reasonably complex history and Dr Malios he made no comment about severe impairment.
243       Dr Stark noted, likewise, Dr Stockman’s report did not make any mention of cognitive difficulties and handwritten notes of Dr Gouras did not suggest such issues.
244       Whilst Dr Gouras’ notes supported a diagnosis of loss of consciousness and a significant blow to the head, there was no indication of major cognitive impairment at that time.
245       Dr Stark noted looking back at the extent of cognitive difficulty displayed when the plaintiff was examined in October 1999, it was difficult to imagine the problems of that scale would not have been apparent to the doctors writing reports at around that time.
246       Dr Stark noted the Surrey Hills Medical Centre notes had a strong emphasis on diabetic retinopathy and it appeared the plaintiff had very substantial impaired vision as a result of her diabetes.
247       Dr Stark noted that there was no mention of the accident until Dr White was asked to write a report in June 2009 and Dr White’ comments in this regard that whilst a formal diagnosis had not been made, it was likely there was a degree of cognitive difficulty.
248       Dr Stark thought it was inconceivable that a person consistently showing the degree of cognitive impairment shown in his examinations would not have had the matter further investigated by a doctor who had seen her so many times. Whilst there may have been some minor cognitive difficulties, it was hard to believe that there would be extremely severe cognitive impairments demonstrated on a regular basis.
249       In Dr Stark’s view, the records supported his conclusion that the apparent cognitive impairments demonstrated in 1999 and 2009 were not due to organic brain injury. He thought the difference in presentation before him and the plaintiff’s apparent performance in front of her general practitioners might suggest a degree of conscious elaboration. However Dr Stark thought it possible that genuine psychological issues may have impaired the plaintiff’s performance in the medico-legal examinations. He therefore could not be confident whether the plaintiff’s difficulties were volitional or psychogenic, but he could be reasonably confident that at least the bulk of the apparent cognitive difficulty demonstrated to him was not due to organic injury.
250       Dr Weissman, psychiatrist, saw the plaintiff on 10 November 1999.
251       The plaintiff described to him her current emotional situation as feeling now like she was finished and was not interested in anything, nor did she feel like doing anything. The plaintiff told Dr Weissman of problems with memory and concentration. She said she was a little afraid as a passenger and told him she had dreams and nightmares of the accident every night. The plaintiff denied any previous psychiatric or physical history.
252       On mental status examination, the plaintiff appeared mildly psychomotor retarded. Her speech was mildly lowed in rate and her affect appeared mildly depressed and restricted in range. Her thought content revolved around chronic pain and changes to her personality since the accident, difficulties with her memory and concentration, and depressive themes. There was passive suicidal ideation but no active suicidal ideation.
253       There was a heightened perception of pain and mild passenger hypervigilance but no flashbacks or hallucinations.
254       Having asked the plaintiff a number of questions, Dr Weissman concluded her attention and concentration appeared mildly impaired during the interview, noting by and large however the major feature was that of giving up easily.
255       Dr Weissman thought there were both subjective reports of cognitive deficits coupled with mild examples of the same on objective testing. In his opinion, a small proportion of the plaintiff’s cognitive problems were the result of direct brain damage in the accident.
256       Further, Dr Weissman thought the plaintiff experienced mild to moderate mixed depressive and anxiety symptoms in the context of a chronic pain injury, disability and changes to her lifestyle functioning. In his view, this would classify as an Adjustment Disorder with Depressed and Anxious Mood of moderate severity and also a secondary psychiatric impairment.
257       Dr Weissman’s impression was that a significant proportion of the plaintiff’s cognitive deficits were also secondary to her Adjustment Disorder symptoms. He thought by and large her psychiatric symptoms had stabilised.
258       He considered the plaintiff’s overall psychiatric prognosis was likely to be poor and her mild high cognitive level deficits as a direct result of brain injury would continue in their current form and severity for the remainder of her life. He considered her Adjustment Disorder symptoms would primarily depend upon the improvement of her chronic pain. He did not think she needed to see a psychiatrist or a psychologist, but noted she should continue on her Aropax antidepressant medication. He also thought she should have an up-to-date neuropsychological testing. He concluded only a small part of the plaintiff’s cognitive deficits were a direct result of brain injury and the bulk of it was a manifestation of her depressive syndrome.
259       Dr Weissman provided a supplementary report as to an AMA impairment, having been provided with Dr Stark’s report of 18 October 1999.
260       Dr Weissman re-examined the plaintiff in July 2009, ten years after his original examination.
261       The plaintiff told Dr Weissman she felt constantly sad and did not remember things. She had a problem with sleeping and her appetite was diminished and her energy level lowered.
262       Dr Weissman did not formally test the plaintiff’s high centre cognitive functioning and noted her subjective complaints regarding significant forgetfulness.
263       Dr Weissman noted the interview and assessment were difficult and complex for a number of reasons.
264       In the eleven years since he had last seen her, the plaintiff had become more disabled and more dependent and she reported severe visual disturbance. Dr Weissman was not sure how much of that was accident related and how much related to the aging process and her other medical problems. This was an important issue for him because the bulk of the plaintiff’s emotional reaction was consequential to her pain, physical symptoms, visual disturbance and disabilities.
265       The plaintiff had a major pre-occupation with her significant reported visual disturbance which she claimed was entirely accident related.
266       The plaintiff was unable to give details of her psychiatric or psychological treatment and these affected the quality of the assessment. Therefore, Dr Weissman noted that his comments and opinions were somewhat provisional and non-definitive.
267       It seemed to Dr Weissman that the plaintiff was suffering from a Chronic Adjustment Disorder with depressed mood and anxious mood of moderate intensity or severity.
268       Dr Weissman noted the degree to which that condition was accident related was completely dependent upon the degree to which the plaintiff’s disabilities were deemed to be accident related.
269       He felt the plaintiff had developed symptoms and features of a Chronic Pain Syndrome, noting there appeared to be many psychological and functional factors amplifying her sensation, experience and presentation of pain.
270       Dr Weissman considered that the plaintiff’s psychiatric symptoms had stabilised. He was not sure whether she would benefit from seeing a psychiatrist or a psychologist. He thought probably not, but if she was taking an antidepressant, then that would not be inappropriate. He thought her overall prognosis was unfavourable.
271       Dr Weissman was subsequently provided with details of the plaintiff’s previous WorkCover claims, a report from Mr Hjorth dated October 2009, numerous reports from Dr Stark and also a report from orthopaedic surgeon, Mr Shannon.
272       It seemed to Dr Weissman, based on all those reports, before the accident the plaintiff suffered from significant pain focus and preoccupation with elevated health concerns, elements of an invalid and sick role and probable abnormal illness and pain behaviour.
273       On balance, having read material relating to the three WorkCover claims, on purely psychiatric grounds, it seemed to him the plaintiff had significant pre- existing vulnerabilities in the areas of depression and anxiety, noting however that he did not know her exact psychiatric state at the time of the accident save that she was retired at that point.
274       Dr Weissman noted it would be very valuable for him to know from the plaintiff’s previous general practitioner as to her mental state leading up to the transport accident.
275       Noting the previous history, Dr Weissman concluded the accident was almost certainly not wholly responsible for the plaintiff’s psychiatric conditions or mental injuries. On balance, all he could say was that the accident was partly responsible for or attributable to those psychiatric conditions or mental injuries but exactly how much and to what extent was uncertain.
276       Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 1 June 2009.
277       The plaintiff then complained of pain in her anterior chest wall, her whole right leg was sore and she also had pain in the lower back and right sided neck pain.
278       On examination, there was a complete lack of co operation. The plaintiff permitted no movement whatsoever of her neck but demonstrated a full range of flexion and rotation to observation. Similarly, she permitted no movement whatsoever in the low back and virtually no movement of the right shoulder. She walked with a shuffling gait, claiming inability to get on the couch. A neurological explanation was not possible, but when dressing at the end of the examination, it was noted the plaintiff was able to freely elevate her right arm.
279       Mr Shannon noted the problem with assessing the plaintiff was her complete lack of cooperation with either the history taking or physical examination.
280       From an orthopaedic point of view, he thought the established diagnoses therefore were an aggravation of cervical disc degeneration and a compression fracture in the lumbar spine and possibly a soft tissue injury to the right shoulder, but again he noted it was almost impossible to assess because of the plaintiff’s lack of cooperation on examination.
281       Mr Shannon noted the plaintiff presented as rather vague and passive but in fact she actively resisted movement and her true level of capacity could not be assessed.

282       In conclusion, Mr Shannon thought the findings on examination were unreliable and that the inconsistencies demonstrated suggested a deliberate lack of co-operation. He did not believe the plaintiff required anything more than symptomatic treatment for her orthopaedic injuries and did not think her physical injuries would prevent her from performing simple recreational, social and domestic activities.
283       Mr Shannon was subsequently provided with a number of other reports and also clinical records of the plaintiff’s pre accident general practitioner.
284       Mr Shannon commented that he was not surprised the plaintiff had a functional overlay in relation to previous WorkCover claims. He noted that if she had not complained of symptoms in her neck and back over the last eleven years, it was to be presumed they were not causing a major problem.
285       Mr Shannon noted that the plaintiff was able to climb three flights of stairs to his rooms on the day of examination.
286       In a further supplementary report of January 2010, Mr Shannon, having been provided with Mr Hjorth’s report, commented that there was no evidence that the spinal cord was injured and, secondly, the plaintiff did not appear to have major difficulty in walking on examination.
287       Mr Shannon commented that he was not particularly surprised that the plaintiff did not mention her accident injuries or make any complaint about them between 1998 and 2009, because he did not think they were necessarily serious injuries. He noted he had not seen the x-rays and had not been able to obtain from the plaintiff an accurate history or perform an adequate examination.
The Plaintiff’s Eye Condition
288       Evidence as to the plaintiff’s eye condition subsequent to the accident was tendered by both parties although there was no impairment claimed in this respect.
289       Testing at The Royal Eye and Ear Hospital carried out on 22 October 1999, resulted in a provisional diagnosis of non-proliferative diabetic retinopathy and epiretinal membrane.
290       The plaintiff was referred to Dr Mantzioros at the Caulfield Eye Clinic by Dr Gouras in March 1998.
291       Dr Mantzioros explained to the plaintiff that her left cranial nerve palsy could certainly be a result of trauma to the region as occurred in the accident. However, he noted the plaintiff was also being treated by a local doctor for non-insulin dependent diabetes mellitus and systemic hypertension both of which could also produce sixth cranial nerve palsy. Dr Mantzioros thought however, it was unlikely this was the case, since the plaintiff dated the onset of her double vision exactly after the accident.
292       Examination in 1998 revealed a remarkable improvement in symptoms of double vision, and the plaintiff’s palsy was resolving satisfactorily.
293       Dr David Gale, eye specialist, examined the plaintiff in February and twice in March 2000. Such visits were necessitated by conflicting results he obtained during the earlier examination.
294       Dr Gale considered that the plaintiff sustained a sixth nerve palsy as a result of the head injury in the accident. He noted she also had diabetic eye disease. In his view, this was the cause of significant loss of central vision and perhaps some peripheral vision, although there was evidence also that she had some functional ocular manifestations, as the peripheral fields indicated there was an apparent loss of field of vision without any organic basis. He thought the plaintiff had severe ocular problems which required proper investigation and probable treatment. He thought there was probably no relationship between a diabetic state, the appearance of diabetic eye disease, its probable gradual progression and future progress, and the injuries the plaintiff sustained at the time of the accident.
295       On re-examination in July 2009, Mr Gale concluded the plaintiff’s pre-existing conditions of diabetic eye disease and hypertension had not been aggravated or accelerated by the accident. He thought the prognosis for the plaintiff’s vision was poor.
296       Dr Lazarus, eye specialist, examined the plaintiff on behalf of the defendant. When he assessed her in November 1999, he noted it was not clear whether the sixth cranial nerve palsy was related to the accident or the plaintiff’s diabetes. He thought that since the cranial nerve palsy had spontaneously resolved and the plaintiff had no double vision, there was no ocular motility impairment.
297       Dr Lazarus noted from Dr Mantzioros’ report, following examination in April 1998, that the plaintiff must have had a normal left macular four months after the accident.
298       Dr Lazarus thought the central visual impairment for the plaintiff’s left eye was due to her pre-existent diabetes and hypertension and not related to the accident.
299       From an ophthalmological point of view, Dr Lazarus thought the plaintiff had sustained a head injury that may have affected her visual system. He noted she suffered from diabetes and hypertension. The macular changes in the left eye were in keeping with the plaintiff’s medical condition and may not be related to the accident.

Overview
300       It is not disputed that the plaintiff suffered an injury to her head, neck and back in the accident.
301       Hospital records following admission after the accident detailed a fractured sternum, an L2 crush fracture, a small subdural haematoma and a left sixth nerve cranial nerve palsy.
302       The consensus of medical opinion is that the palsy resolved some time ago. Whilst the plaintiff claims her eyesight has deteriorated since the accident, there is no medical evidence that this deterioration is accident related and there is no application in this regard.

Spinal Impairment
303       Whilst the plaintiff had spinal problems following the bus accident in 1985, and required ongoing treatment until 1989, thereafter she was able to work in a relatively heavy job at the nursing home for nine years until she retired aged sixty five in 1997.
304       During that time working, the plaintiff led an active happy life and did not require ongoing medical treatment for any spinal condition.
305       I am satisfied therefore that at the time of the accident, the plaintiff did not have any ongoing spinal problems.
306       Clearly, in the accident the plaintiff suffered a significant injury in the form of an L2 fracture. However, as noted in the Hospital report, that fracture required symptomatic monitoring only before gradually mobilising with the aid of physiotherapy. No mention was made of any treatment in relation thereto later on. The plaintiff’s other spinal injuries are soft tissue in nature.
307       After the initial admission to the Hospital, the plaintiff was an inpatient at Cedar Court for three weeks and then discharged to the care of her general practitioner at that time, Dr Gouras.
308       He treated her with medication and referred her to specialists Dr Stockman and Dr Malios, both of whom the plaintiff saw only once in 1998. He also referred the plaintiff for treatment to an eye specialist that year
309       Both Dr Malios and Dr Stockman diagnosed a soft tissue injury and Dr Stockman suggested the plaintiff undergo pain management.
310       Dr Gouras last saw the plaintiff in May 1999. The plaintiff commenced treatment at the Surrey Hills Medical Centre the following month. She was first seen by Dr White at that practice in 2001 and has continued under his care since that time.
311       There is no mention of any spinal complaint or the accident in the Medical centre notes from 1999 to 2001.
312       Despite the plaintiff’s evidence that she told Dr White “everything”, he was not aware the plaintiff had been involved in the accident or that she had suffered any spinal complaint until receiving such advice from her solicitors in 2009.
313       Those doctors the plaintiff has told of the accident since 1999 were medico- legal examiners.
314        I do not accept that if the plaintiff had experienced the level and constancy of pain deposed to, she would not have mentioned it to Dr White or that it would not have been apparent to him on the many examinations he carried out in relation to the plaintiff’s other health problems particularly from 2004.
315       Further, I do not accept that the plaintiff’s evidence that she did not mention “everything” to Dr White over the period he treated her.
316       I accept Dr White‘s evidence that he is an over recorder and accordingly if the plaintiff had told him of spinal pain he would have noted it and acted upon it. The plaintiff clearly did not have any problems telling him about her other health problems on numerous attendances although Dr White explained she did not tell him of problems with her sight and in re examination, Dr White denied the plaintiff was the sort of person whom you would expect to volunteer their problems.
317       Having been told in 2009 of the accident and the plaintiff’s reported spinal complaints, Dr White did not refer her to a specialist, pain management program or other treatment. He first prescribed painkillers in March 2010.
318       Dr White has not examined the plaintiff’s back. The only examination of her back was carried out by Dr White’s partner Dr Rixon in January 2011.
319       Dr Rixon prescribed Panadol Osteo and Oxycontin at that time, noting the plaintiff’s pain was inadequately controlled. Oxycontin was ceased in April 2011.
320       The plaintiff was also prescribed Panadol after the hernia operation in mid 2010.
321       Whilst the plaintiff’s evidence as to her pain and restrictions was not significantly challenged and her husband’s evidence corroborating her complaints was unchallenged, I am not satisfied that there was any organically based spinal problem of any significance beyond the early 2000s.
322       Mr King, the medico legal examiner most supportive of the plaintiff’s claim, based his opinion on an acceptance of her history that she has “continued to be worried” by headache, neck pain and back ache for the last ten years related to her cervical disc injury, L2 fracture and fractured sternum.
323       I am mindful of what was said by the Court of Appeal in Dordev v Cowan (2006) VSCA 254 in relation to the plaintiff’s credit in this type of case.
324       As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant as to the reliability of the medical evidence because the opinions of the doctors are essentially dependant on the credibility and the reliability of the history given to them by the plaintiff.
325       Mr King is the only medico-legal examiner who has not found any psychological component to the plaintiff’s presentation and considered her problems were based upon what he perceived to be the underlying organic injuries sustained in the accident.

326 As early as 1999, medico-legal examiners found inconsistencies on examination and non organic factors in the plaintiff’s presentation.
327       Having noted such inconsistencies, Mr Williams found a considerable non organic component to the plaintiff’s sense of illness reflected in the rather non specific nature of her symptoms. He did not consider the plaintiff required further treatment.
328       In 1999, whilst accepting the plaintiff had suffered a closed head injury in the accident, Mr Calvert also believed she was also suffering from a marked psychological disturbance following the accident, including depression and her true intellectual impairment was being exaggerated by this. Further, he believed this psychological disturbance was aggravating and prolonging the effects of the plaintiff’s physical injuries and he considered the best treatment was likely to be an earliest possible settlement of litigation.
329       In 1999 Dr Stark found a substantial non organic basis to the plaintiff’s complaints.
330       Mr Simm, in 2001, had similar views commenting that the plaintiff’s response to physical examination would suggest all of the injuries had now been complicated by a disabling pain syndrome, and evidence of substantial emotional disturbance was confirmed. He considered the marked restriction of movement due to voluntary restriction was secondary to apprehension and pain, rather than due entirely to the physical effects of the injuries sustained.
331       Mr Simm did not believe the plaintiff required any further treatment.
332       Mr Mangos, in 2007, and again in 2009, accepted an organic basis for the plaintiff complaints but thought she had obviously suffered severely psychologically.
333       Dr Hjorth had problems in conducting any sort of physical examination.
334       Dr Stark thought the findings on examination in 2009 would suggest that there was a prominent psychological or non organic component to the plaintiff’s current complaints.
335       Mr Shannon thought the findings on examination in 2009 were unreliable and that the inconsistencies demonstrated suggested a deliberate lack of co- operation. He further noted the plaintiff was able to climb three flights of stairs to his consulting rooms.
336       Whilst in the early stage of the development of the plaintiff’s pain following the accident there was a relevant relationship between her pain and the physical injury, later on the pain has become wholly or at least substantially psychogenic in its basis.
337       In my view, at the time of the hearing the plaintiff’s pain was psychogenic in its basis and thus the impairment is not now organic and the injury cannot be properly characterised as falling within paragraph (a) – see West v Pac Rim Printing Pty Ltd (2003) VSCA 63 at a 27.
338       Therefore, I am not satisfied that the plaintiff has a serious, organically based long term spinal impairment relating to the accident.
339       Accordingly, the application pursuant to paragraph (a) fails.
340       In the alternative to this application pursuant to paragraph (a), relying on Dr Stark’s view as to the non-organic basis of the plaintiff’s spinal condition, it was submitted the plaintiff had a Pain Syndrome which was a severe psychiatric impairment pursuant to paragraph (c), such that had been allowed by Ashley J in Veljanovska.
341       There is little medical support for this diagnosis, save for Dr Weismann who, in 2009, thought there were symptoms and features of a Chronic Pain Syndrome.
342       No problems in this regard have ever been noted by Dr White, thus there has not been any specialist referral or prescription of medication relating to any mental condition.
343       Therefore, I am not satisfied that the plaintiff suffers from a psychiatric impairment which meets the higher test of severe.

Cognitive Impairment
344       Leave is also sought to bring proceedings for damages in relation to a cognitive impairment.
345       In terms of any closed head injury, the period of loss of consciousness is uncertain with the Hospital report setting out the plaintiff recalled the accident and had no loss of consciousness. Further, it was noted that at the time the ambulance arrived at the accident scene, the plaintiff was conscious, alert and oriented, but was complaining of blurred vision and chest discomfort.
346       The plaintiff suffered a subdural haematoma but there is no medical evidence linking that haemorrhage to any continuing cognitive difficulties.
347       Following the accident, the plaintiff complained to Dr Gouras of headaches and dizziness. The plaintiff has also been treated at the Surry Hills Medical Centre in relation to these complaints since 1999.
348       When he examined the plaintiff in 1999, Mr Calvert thought the dizziness could be a true effect of the head injury on the inner ears which were concerned with balance although he believed it, like the plaintiff’s headaches, was exaggerated by psychological problems.
349       Dr Stark found no objective evidence of true vertigo on examination in 1999.
350       There is no further medical opinion as to the ongoing course of the plaintiff’s dizziness and their relationship to the accident. Mr King attributed the headaches to the plaintiff’s cervical spine condition.
351       Dr White confirmed a provisional diagnosis of labyrinthitis was made in relation to the dizziness, nausea and vertigo in July 1999. In December 2003, three days of vertigo was reported and the diagnosis was hyperglycemia.
352       Dr White accepted the proposition that problems with memory and dizziness reported by the plaintiff from 1989 were consistent with non accident related causes such as high blood pressure/ heart related hypertension, diabetes, advancing age or all factors in combination.
353       Problems with memory and concentration were mentioned by the plaintiff to Dr Gouras and medico-legal examiners, Dr Piperoglou and Mr Calvert, in 1999.

354 The only specialist referral or treatment in this regard was the neuropsychological testing carried out by Ms Phillips soon after the accident.
355       Ms Phillips’ concern after testing was the plaintiff’s emotional state rather than any accident related cognitive problems. Noting it was early days and further improvement was expected, she found the plaintiff’s general intellectual abilities together with new learning and recent memory function to be well preserved. In her view there was no evidence of any lateralised or focal neuropsychological dysfunction on the present assessment.
356       When Mr Calvert examined the plaintiff in 1999, he thought her post accident poor short term memory and concentration were consistent with a closed head injury and it was likely she had suffered impairment. However he also believed the plaintiff was suffering marked psychological disturbance following the accident including depression.
357       In examination-in-chief, Dr White confirmed having seen Dr Vowels report he thought the plaintiff had cognitive difficulties beyond what would be expected from just a lack of fluency in English.
358       In cross-examination, Dr White agreed when he took over the plaintiff’s care in 2001, she gave him a coherent history. He did not notice any cognitive problems, and he would have recorded them had they been present.
359       The high point of the plaintiff’s case is neuropsychologist Dr Vowels’ testing, following an initial interview of the plaintiff in April 2009 and subsequent testing in July of that year.
360       Dr Vowels concluded, after testing that did not rely on visual abilities, that the plaintiff was currently demonstrating several significant cognitive disabilities which Dr Vowels thought were most likely a result of a damage to the brain in the frontal regions suffered in the accident. That was in addition to the plaintiff’s visual impairments and her apparent ongoing vertigo.
361       Whilst Dr Vowels has completed the only recent neuropsychological testing, that same year Dr Hjorth attempted to give the plaintiff a neuropsychological screening test, but that proved impossible. Dr Vowels testing results do not appear to have been provided to him.
362       In 2009, Dr Stark did put the plaintiff through some tests of cognitive function noting she performed a little better than on previous examination in 1999.
363       Dr Stark thought it fair to say the plaintiff’s performance on Dr Vowel’s cognitive testing was very poor, but he did not believe that it would be possible for her to say confidently that the plaintiff’s problems were organic in type.
364       Having noted that one of the issues in the present case was whether the plaintiff had dementia, Dr Hjorth commented that if the plaintiff’s memory was worsening as she reported, such deterioration would not be as a result of a head injury.

365       Dr Hjorth commented that an attempt to establish the plaintiff’s intellectual function failed dramatically not simply because of dementia but rather because she had a process called pseudo dementia sometimes due to organic brain damage, but it was often secondary to a kind of psychiatric disturbance, and sometimes it was considered that it was actually due to malingering but he had found no evidence of malingering in the plaintiff’s case. .
366       In a supplementary report of October 2009, Dr Hjorth confirmed the dominant thing in the patient’s presentation was her mental state and it was very hard to know how this should be classified and treated.
367       As Dr Stark pointed out it was inconceivable that a person consistently displaying the degree of cognitive impairment shown on his examinations would not have this matter looked into further by her doctor who had seen her so many times. Whilst he accepted the plaintiff had suffered a closed head injury
368       Counsel for the defendant also relied the plaintiff’s presentation to Mr King when he reported that with the assistance of an interpreter the plaintiff was a satisfactory, detailed and straightforward historian with no evidence of exaggeration.
369       Further, Dr Lewis noted on examination in 2009, the plaintiff related quite well directly to him and via the interpreter. She gave quite a good but extended account of her problems.
370       In my view, the plaintiff coped quite well in the witness box. I do not accept that the style of questioning undertaken by counsel for the defendant was such that I could not form a view as to the plaintiff’s cognitive ability.
371       For example, I accept that the plaintiff had a clear memory of the visits of the nurse in 2008 and 2009, and was aware of what had been asked in English in terms of her sleep. She initially agreed with the history given to the nurse. There was then some discussion about what was said in her affidavit, and the plaintiff subsequently said she could not remember telling the nurse that she had adequate sleep.
372       Whilst the plaintiff elected to give her evidence through an interpreter, I thought the plaintiff did understand what was being asked in English. This was not surprising as the plaintiff agreed that when she worked in the nursing home for nine years she spoke to staff and patients in English.
373       Taking into account all the evidence, I am not satisfied that the plaintiff has an organically based cognitive impairment related to the accident which meets the test of “serious” according to the test in Humphries v Poljak.
374       The plaintiff’s application in relation to cognitive impairment is dismissed, as are her applications relating to spinal impairment and psychiatric impairment.

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[2011] VCC 1455

14 December 2011