Spithoven v Transport Accident Commission

[2021] VCC 1206

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-02895

MICHELLE SPITHOVEN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2020
DATE OF JUDGMENT:	27 August 2021
CASE MAY BE CITED AS:	Spithoven v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2020] VCC 1206

REASONS FOR JUDGMENT
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Catchwords:  Transport Accident Act 1986 – s93(17) – minor transport accident – very large number of reports from medical witnesses ꟷ whether accident could have caused injury relied upon – reliance upon paragraphs (a) and (c) of the definition of serious injury – whether accident caused ongoing conditions of pain sensitisation and the like – whether psychological or psychiatric reaction to the accident exists and is of sufficient severity to satisfy the definition – whether incident which occurred some hours after the accident at police station is of relevance – impact of same if it is – whether burden of proof discharged – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M A Hartley QC with Ms S Gold	Polaris Lawyers
For the Defendant	Mr J Batten with Ms J Clark	Solicitor for the Transport Accident Commission

HIS HONOUR:

(1)General background

1This matter comes before me by way of an application pursuant to s93(17) of the Transport Accident Act 1986 (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraphs (a) and (c) of the definition of “serious injury” found in that provision. Whilst it was put during the opening on behalf of the plaintiff that reliance was largely placed upon paragraph (a), nevertheless paragraph (c) remained as a basis for the application. In this regard, I would refer to Transcript (hereinafter referred to as “T”) 2 and 3.

2I apologise for the lengthy delay in the handing down of this judgment.  As shall be discussed, a very large number of medical reports and associated material was put in evidence.  Indeed, it is by far the greatest amount of material that I have encountered in a serious injury application.  That is in addition to considerable surveillance evidence.  Further, and apart from COVID difficulties, it has been one of those judgments where, if things can go wrong, they do.  By a very considerable margin, it is the longest serious injury judgment of the many which I have handed down.  I apologise again for the delay.

3The plaintiff relies upon a collision which occurred on 9 August 2016.  This shall hereinafter be referred to as “the accident”.  Whilst the nature of the accident will be discussed further, I would say at the outset that it involved a very minor collision, having what appeared to be a very minor impact.

4The accident occurred in the drive-through portion of a McDonald’s Restaurant in Traralgon.  The plaintiff was seated behind the driving wheel of her stationary vehicle.  She had received her take-away meal or was in the process of receiving it, but had not moved on.  She was wearing a seatbelt.  The vehicle behind that of the plaintiff then travelled forward at an extremely modest speed and struck the rear of the plaintiff’s vehicle.  The other vehicle had travelled only a short distance, in the vicinity of a car’s length, and from a stationary position before the accident.  The other vehicle was larger than the plaintiff’s vehicle and was in the nature of a four-wheel drive car.  This happened at about lunch time on 9 August 2016 and was captured on video, which was shown more than once to the Court and which has been shown to some of the medical examiners.  There is no suggestion that the rear car was accelerating rapidly or travelling at anything more than an extremely modest speed.  The collision itself was of sufficient force to cause the plaintiff’s vehicle to be jolted a little, but not to any great extent.  It was also of sufficient force to cause a modest amount of damage.

5I am describing the accident in some detail at this early point in the judgment, because one of the central issues in this case is whether a collision of this nature could have caused the consequences now alleged by the plaintiff.

6The alleged injuries suffered by the plaintiff shall be discussed at greater length subsequently, but could be summarised as being damage to the cervical spine and particularly to the C5-6 disc, with disc protrusion and associated myofascial injury; aggravation of injury to the lumbar spine with radicular symptoms in the legs; central sensitisation, organically based; adjustment disorder with anxious and depressed mood; chronic pain condition; pain somatisation disorder; and somatic symptom disorder with predominant pain.

7Ms M A Hartley QC with Ms S Gold of counsel appeared on behalf of the plaintiff.  Mr J Batten of counsel with Ms J Clarke of counsel appeared on behalf of the defendant.  The plaintiff gave evidence, including the adoption of four affidavits as being true and correct.  She was subjected to searching cross-examination.  The balance of the evidence was documentary in nature, including the video material of the accident, and was tendered either by consent or without objection.

8I would also point out that a very large amount of medical material was put before me, far in excess of what is normally seen in originating motions of this kind.  The plaintiff tendered no fewer than 25 reports, along with a considerable amount of radiological material and some treatment records.  The defendant tendered nine reports and two sets of clinical records.  Whilst the plaintiff put in evidence 12 reports from people who had treated her, the earliest consultation mentioned in such reports is 19 April 2017 with Dr Daniel Lee ꟷ that is, in excess of 7 months after the accident.  Further, I appreciate that the plaintiff has had a lot of treatment and that the accident occurred over five years ago, but what was put in evidence still seems to me to be an excessively large amount of medical material for an originating motion of this nature.

(2)The plaintiff’s background, training and education

9The plaintiff is aged 56 years, she having been born in 1964.  She is a divorced woman, who lives with her 12 year old daughter.  She has three other daughters of adult age.  As I understand it, after her divorce the plaintiff was in a relationship with another man, he being the father of the 12 year old daughter with whom she now lives.  That relationship broke down some years ago, although the man involved attended at the police station with the plaintiff several hours after the accident and at some medical appointments.

10Over her working life, the plaintiff has held a number of administrative positions.  At the time of the accident, she was working approximately 32 hours per week for Centrelink and was studying in order to obtain a Bachelor of Social Work.  As shall be discussed, she completed this after the accident.  As I understand it, the plaintiff’s duties were administrative and clerical in nature.  She had been so employed since early 2006.

(3)The state of the plaintiff’s health prior to the accident

11When a young child, the plaintiff fell on glass and injured a nerve in her right hand, this still causing occasional pain and altered sensation.  When aged 13, she fell from a horse.  She has sworn that this has caused occasional pain and stiffness in the lower back and left hip, although in 2016 there is a reference to chronic back pain following a fall from a horse.  This is in the correspondence of Dr Zafar, a treating general practitioner, and obviously many years after the fall.  As shall be discussed, Dr Zafar was a treating general practitioner of the plaintiff shortly after the accident. 

12In October 2014, the plaintiff had an episode of neck pain following a period of heavy computer work.  A CT scan was reported to be normal and her symptoms resolved.  Between 2010 and 2015 she had bouts of lower back pain, occasionally causing referred pain.  She had further treatment of the lower back in August of 2015, but apparently medication was not required.  Following the breakdown of her marriage some years ago, she suffered from mild anxiety and stress, which was controlled with medication taken for a period of approximately six months.  It is also evident from the notes of the Hillcrest Medical Centre, a clinic attended by the plaintiff and the notes having being put in evidence by the defendant, that the plaintiff attended that clinic on a very regular basis and for a variety of reasons.

(4)The plaintiff as a witness

13I say now that I found the plaintiff’s description of the accident as given over the subsequent years to be quite unreliable.  I have viewed the video material several times.  This was a very low speed impact, which caused her car to jolt forward to a minor extent, before effectively returning to its original position.  When seen for treatment by Dr Daniel Lee, consultant in rehabilitation and pain medicine, her description of the accident was that it was low speed.  Her vehicle was stationary.  She was the only person in it.  Her body was slightly turned in order to get her wallet, which was in the vicinity of the passenger seat.  Her estimate was that she was hit at about 10 kilometres per hour.  On my viewing of it, the vehicle which struck her covered an extremely short distance from the stationary position – perhaps in the order of one car length – and I would put 10 kilometres per hour at the very top of the range of its estimated speed.

14In any event, what is seen on the film and was reported to Dr Lee is to be contrasted with what, for example, the plaintiff told Dr Nathan Serry, consultant psychiatrist, whom she saw on 30 November 2017 at the request of her solicitors.  To him, she stated that, immediately after the impact, she was completely confused and had apparently lost her sense of sound.  She was aware of the impact, thinking that there had been an earthquake.

15The plaintiff’s current treating psychologist, Mr Garry Lawler, has taken a history of her pain being originally triggered by the impact of the vehicle hitting her vehicle and that the impact was followed by abuse from the other driver, which the plaintiff found frightening.  Whilst there is no soundtrack attached to the video, there is no visual indication of any hostility or anything more than the prompt exchanging of particulars. 

16The history given by the plaintiff to her current treating psychiatrist, Dr Rajiv Siotia, as recorded in his report of 4 May 2020, is considerably more dramatic.  She described the fact that her vehicle was stationary, that she had paid for her food, and was turning to put her card back in her wallet.  It was then that the car behind hit her.  She was “thrown back, like a wavey motion”.  Her eyes were closed.  She felt something resembling an earth tremor.  She thought that “the road was moving”.  She panicked, thinking that her car would be “pushed through to the highway”, as the car was “in drive”.  The movement then stopped and she could hear birds singing.  The other driver was shouting something to the effect that the plaintiff’s car was doing crazy things.  She did not hit her head in the accident.  She drove away and went to her general practitioner (this was apparently a pre‑existing appointment).  She did not tell that doctor about the accident, as she was in a rush to go home and call the insurance company.  She also described the later discussion with the other driver’s husband at the police station.  She described him as “ranting”, also stating that six police officers came running out of the police station, one of them shouting at her “Don’t you move an inch”.

17To Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who examined the plaintiff at the request of the defendant and reported on 2 July 2020, the following history was given.  She was going through the drive-in at McDonald’s.  Her foot was on the brake.  She leaned to put her wallet into her bag on the front seat.  She was hit from behind, shunted forward and she indicated that her neck went from one side to the other and from the back to the front.  She thought that it was an earthquake and kept her eyes closed, but when she opened her eyes, she realised she had been hit from behind.

18The plaintiff told Dr Thomas that she had a pre-arranged appointment to see her general practitioner on the same afternoon as this event, but did not mention it to her.  She then visited three different panel beaters in order to get quotes for her car.  She also picked up her daughter from school.  Dr Thomas stated that he had seen the CCTV footage.  To quote him, “the accident clearly was quite trivial.  The only traumatic aspect that occurred shortly after the accident was the confrontation between her and the husband of the person who hit her”.  This is clearly a reference to what occurred at the police station.  As shall be discussed, Dr Thomas thought that the genesis of her problem was more of a psychiatric nature than an organic pain syndrome.  He did not believe that there was an organic basis for her symptoms. 

19Associate Professor Peter Doherty, consultant psychiatrist, examined the plaintiff at the request of the defendant.  To him, the plaintiff said that she was in the drive-through lane at McDonald’s and had her purse near her.  She had her hand through the window and was seeking to take her card from her wallet when the accident happened.  She said that she was thrown backwards and then was facing the front.  She suffered a double whiplash.  She did not know what had happened.  She thought that there had been an earth tremor.  She slammed her feet hard on the brake and gripped the steering wheel.  She said that she feared that she would be pushed onto the freeway.  She did not know what was going on.  She felt a squeeze in her neck and was hanging onto the wheel.  Immediately she could hear nothing.  She said that she then heard birds, opened her eyes and realised that it was not an earthquake.  She looked at her feet and wriggled her toes.  She got out of the car and onto her feet and knew that an accident had taken place.  There was an exchange of details with the other driver, who was screaming, “Oh my God, I am sorry”.

20The plaintiff told Associate Professor Doherty that the other driver said that she, the plaintiff, was driving weirdly, driving up and down in the McDonald’s drive-through.  The back of her car was damaged, but she was able to drive away from the scene.  The plaintiff said that the whole back of her vehicle was caved in and the petrol tank was displaced.

21The plaintiff also told Associate Professor Doherty that she attended her general practitioner.  She did not whinge to the doctor and did not say anything about the accident.  She was in no pain at the time.  Two hours after the transport accident, pain came on and she felt as if her brain was going to blow up.  The other driver had said that nothing had happened and that her husband wanted to see the plaintiff.  The plaintiff telephoned the police and organised to meet the other driver’s husband at the police station.  He was allegedly aggressive.  Her current carer (whom I understand to be her former partner) was with her.  She stated that there were eight police officers present and that she was arrested, not knowing the reason why.  She then said that her head nearly blew up two hours later.  She described subsequent immediate problems that she had at work on the following day.

22It is apparent that Associate Professor Doherty had viewed the DVD footage of the accident, noting its time and date.  This made it clear to him that the accident was of a minor nature, “little more than a nudge”.  Associate Professor Doherty expressed the opinion that the plaintiff had described the accident in a grossly exaggerated, embellished and overstated way and not in keeping with the actual facts of the accident.  He stated that her description of the accident was so out of keeping with the facts of the matter as to give rise to the question as to whether or not the whole of the presentation was made up.

23Associate Professor Doherty made further observations in relation to the accident.  He stated that there appeared to be a jerk to the plaintiff’s vehicle and it was moved forward “a few inches”.  The plaintiff then got out of the car after a little while, and a minute later returned to the vehicle and drove off.  He stated that her description of the accident, including her fears of an earthquake and being pushed onto the freeway, was not in keeping with the fact of the minor nature of the accident.

24Dr Ian Dickinson, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 22 November 2018.  To him, the plaintiff said that she had just paid for her meal and drink at McDonald’s and was putting her card back in her bag on the left hand seat.  Something happened which had a real effect of jarring.  She was thrown to the right and then to the back.  Because she lived in an area where there were many tremors, she thought it might have been a tremor and was worried about her car being thrown forward.  She was able to get out of the car and felt fine.  She exchanged details with the other driver.  She then drove on to the shop, Athlete’s Foot, and then to a doctor’s appointment.  She did not mention the accident at the time because she felt that she would be fine.  Two hours later, she had pain on both sides of her head.  She took Panadol and Brufen.  The pain was still there at bedtime.  There is no reference to problems with the other driver, the other driver’s husband, a trip to the police station, her threatened arrest or the like.

25Subsequently, Dr Dickinson was forwarded a DVD of the accident.  It is apparent that he viewed it.  In a brief report of 10 April 2019, he described the accident as being “an exceedingly minor rear-end incident”.  He went on to state that it would not have caused any injury.

26The above detailed descriptions are to be contrasted with the history apparently given to the plaintiff’s treating surgeon, Mr Greg Etherington, who reported to the general practitioner, Dr Zafar Iqbal, on 29 November 2016, having seen the plaintiff on 17 November.  The history taken by Mr Etherington was that the plaintiff had told him that she was a driver of a stationary vehicle that was struck from behind.  She was able to get out of the car and move around, but she had a “bit of a headache”.  Later that night, the pain increased further and, by the next day, she had significant pain in her neck.

27I have gone into considerable detail concerning descriptions of the accident given by the plaintiff to some medical examiners.  Other histories will also be mentioned when I am dealing with the many reports that have been put before me.  I appreciate that liability was accepted by the defendant and that various medical and like expenses have been paid by it.  I also appreciate that the plaintiff has effectively been absent from employment for a lengthy period.  Some payments have been made in this regard.  However, issues have arisen as to whether the plaintiff has given an accurate and reliable description of the accident and whether such accident could have been productive of the incapacitating symptoms which she now describes.

28I would repeat that I have viewed the video material several times.  The accident was a very minor one indeed.  I agree with Associate Professor Doherty that, if the plaintiff’s car was moved forward, it was a matter of inches.  The plaintiff alighted from the car, showing no signs of distress.  She conversed with the other driver and inspected the back of her own vehicle.  As stated by Associate Professor Doherty, this took approximately one minute.  She then got back into her car and drove off.  I accept that the other vehicle was larger than hers and that some damage may have been done.  Her evidence before me was that, when she looked at the back of her car for damage, what she saw was a little bit of a black rubber mark and a very slight bend to the bumper – see T74.  However, in re-examination the plaintiff said that the back of the car had been pushed into the wheel brace “… and then the sides of the car up to where the lights were had moved as well”.  She believed that the cost of repair was marginally over $2,700.  She added that the fuel line had become dislodged, resulting in the leaking of some petrol, and the repair of that cost approximately $120. 

29I also accept that the plaintiff drove off, apparently firstly to the Athlete’s Foot shoe store, and then to a pre-arranged medical appointment.  At that appointment, she made no mention of the accident.  I also accept that she subsequently attended three panel beaters and picked her daughter up from school.  She also seems to have taken some steps in relation to her insurer.  As shall be discussed in greater detail, subsequently she attended at the police station.

30In short, the nature of the accident and the plaintiff’s credibility in that regard have the potential to affect the outcome of her application.  Of course, there are other factors, including many medical opinions, to be considered.  However, in this particular and unusual case, matters relating to the accident, the plaintiff’s description of it and what occurred in its aftermath have the potential to have a direct bearing upon the outcome, even though liability has been accepted.  There is still the essential issue of whether the requirements of the statutory test have been satisfied.  Her credit and reliability are of importance.

(5)The injury, its treatment, consequences and prognosis

31The plaintiff claims that she attended the Hillcrest Medical Centre both immediately after the accident, when she did not mention it, and on the following day, 10 August 2016.  This seems to have been largely in relation to headaches and back pain, although there is also a reference in her affidavit to neck pain.  Whilst it is not entirely clear, it would appear that the doctor whom she saw at that clinic was Dr Farhna Rahman.  Also on that day, she attended Mr Jordan Bourke, osteopath.  No reports, other than clinical records, from either Dr Rahman or Mr Bourke were placed in evidence.  It would seem that the plaintiff also attended upon doctors such as Dr Zafar and Dr Miles at either Hillcrest Medical Centre or Latrobe Medical Centre.  There are no reports from those doctors.

32The defendant placed in evidence the clinical notes of the Hillcrest Medical Centre at which Dr Rahman is based.  In those notes, on 10 August 2016 it is recorded that, whilst paying at McDonald’s in Traralgon, the plaintiff’s car was struck in the rear.  The plaintiff had developed headaches and back pain, mainly on the right side.  On examination, the plaintiff’s range of movement of the neck was within the normal range.  Effectively the conclusion of Dr Rahman was “? Whiplash injury.”  Dr Rahman saw the plaintiff again on 12 August 2016.  The reason for her visit was neck pain.  On examination there was no visible swelling.  There was a slight restriction in the range of movement to the left side, but otherwise “okay”.  There was no midline tenderness.  The taking of a plain x‑ray was requested.  When seen on 7 September 2016, almost one month after the accident, the plaintiff was complaining of right wrist pain and felt that she could feel something in her food pipe.  Dr Rahman noted that the plaintiff was grossly overweight.

33Two days later, Dr Rahman saw the plaintiff in relation to her whiplash injury and the flareup of neck pain.  On examination of the neck, no midline tenderness could be found.  Medial and lateral rotation were partially restricted, but otherwise the range of movement was within normal limits.  It is interesting that Dr Rahman recorded in the clinical notes that it was a whiplash injury of one month’s duration with “infrequent neck pain”.  An MRI scan was to be performed.

34When Dr Rahman saw the plaintiff on 21 September 2016, he recorded that her neck pain had improved.  The MRI report and other results had been obtained.  Apparently the plaintiff did not want to be referred to a neurosurgeon.  She was to continue with her physiotherapy and advised to maintain proper posture at work.  By this time, she would have been back at work for approximately six weeks.

35The clinical notes then indicate that the plaintiff attended upon Dr Zafar, apparently at the Latrobe Medical Centre, on the following day, 22 September 2016.  Dr Zafar recorded that the plaintiff had been a patient of Hillcrest Medical with Dr Rahman.  The plaintiff wanted a second opinion.  Dr Zafar recorded the reason for the visit as being a cervical spine hyperextension injury.  It would appear that a referral to Mr Etherington was discussed and the plaintiff came in on the following day for the letter of referral.  The plaintiff saw Dr Zafar again on 26 September 2016, stating that she had been having pain in the neck for a long time, but sometimes this was aggravated.  She was advised to see Mr Etherington and returned subsequently for a referral to the Latrobe Regional Hospital multidisciplinary team management of pain.  She returned three days later for pain in the back.  She had been to the Latrobe Regional Hospital and given some pain relief.  In the notes, Dr Zafar described the reason for the visit as “whiplash”.  As stated, no report from Dr Zafar was placed in evidence by the plaintiff.

36As is evident from the above, the plaintiff was referred to Mr Greg Etherington, spine surgeon.  This referral, apparently from Dr Zafar, took place on 17 November 2016, with Mr Etherington reporting to him on 29 November.  He also reported directly to the plaintiff at approximately the same time (that letter is undated, but the content would indicate that it was also sent on 29 November 2016).  The reports of Mr Etherington were put in evidence by the defendant.  The history given to Mr Etherington was that the plaintiff was the driver of a stationary vehicle that was struck from behind.  She was able to get out of the car and move around, but she had “a bit of a headache”.  Later that night, the pain increased further.  The next day she was still sore and felt generally “odd”.  She had pain in the neck and cervical, lumbar and thoracic spines.

37She also told Mr Etherington that she subsequently developed paraesthesia in her arm and legs and, accordingly, presented to the Royal Melbourne Hospital.  No report from that hospital was placed in evidence.  She had physiotherapy, with some improvement, and seems to have attended the Accident and Emergency Department of a hospital on 29 September 2016.  That hospital was not identified in the report of Mr Etherington and it would appear that there is no report from it in evidence.

38The plaintiff complained to Mr Etherington of widespread pain, including pain in the posterior aspect of her neck, slightly more on the right side.  This then radiated over the posterior shoulder down the dorsal aspect of the upper arm, the dorsum of the forearm, the volar aspect of the right hand, worse on the ulnar side and also affecting the thumb, and occasionally down the left arm.  It also radiated up the occiput on both sides and through the eyes bilaterally.  There was also pain in the lumbar spine, which the plaintiff described as the aggravation of an old disc injury.  This was accompanied by some anterior left thigh pain and posterior calf pain.  There were no neurological symptoms in the right leg.

39The plaintiff informed Mr Etherington that the pain was present in one place or another all the time.  She was taking Mobic, Lyrica and Panadol and having some osteopathic treatment.  Mr Etherington described to Dr Zafar various details of the examination carried out by him.  He referred to an essentially normal x‑ray of 12 August 2016, this showing only minor degenerative changes.  He also referred to an MRI scan of 16 September 2016, which showed a slight loss of lordosis when the plaintiff was lying down.  There was loss of signal in the sub-axial discs, but no disc protrusion, and the cord was good, with normal signal and canal dimensions throughout.  There was some possible facet arthropathy.

40The conclusion of Mr Etherington, as expressed to Dr Zafar, was that, whilst the plaintiff did have some degenerative changes in her cervical spine, he certainly could not explain all her symptoms on the basis of these.  In particular, there was no finding which could account for her arm pain.  He had organised a CT scan and a bone scan and would report again.

41These radiological investigations were carried out and Mr Etherington reported to Dr Zafar again on 12 December 2016.  There was a lack of “surgical findings” to explain the symptoms and nothing which he could do to assist her surgically.  His view was that he would “tend to now point her” towards pain management services.  He could be of no more assistance.

42Mr Etherington also wrote directly to the plaintiff.  This is an undated letter, but was probably in or about December 2016 and certainly post-dated the CT scan and bone scan, which were described as being recent.  Mr Etherington stated that there were no fractures, dislocations, tumours, cancer or infection.  There was no pressure on the spinal cord.  There were some minor degenerative changes, “but it is difficult to say that these have anything to do with your pain which is more widespread & severe”.  It was not a situation where surgery could help.  He suggested that the next step may be assessment by a pain management specialist.

43Returning to the available records concerning treatment shortly after the accident, the plaintiff appears to have attended at Latrobe Regional Hospital on 12 August 2016.  The primary diagnosis was of a sprain or strain of the neck.  She was complaining of intermittent cervical pain and headaches following a motor vehicle accident three days earlier.  Essentially no neurological defects were noted.  Reflexes were intact and normal, as was sensation.  There was no cervical tenderness on palpation.  The impression recorded by the treating doctor was “Likely minor whiplash”.  It was felt that no further imaging was warranted.  A medical certificate was provided for three days.

44The defendant placed in evidence the clinical records of both the Hillcrest Medical Centre, where Dr Rahman was located, and the Latrobe Medical Clinic, at which Dr Zafar was based.  Dr Rahman seems to have been the plaintiff’s treating general practitioner until 21 September 2016.  On the following day (22 September), the plaintiff appears to have changed general practitioners from Dr Rahman at the Hillcrest Medical Centre to Dr Zafar at the Latrobe Medical Centre.  In any event, Dr Rahman first saw the plaintiff on 10 August 2016.  There is a record of the plaintiff seeing Dr Rahman on 9 August 2016, being the day of the accident.  The reason for the visit is shown as being that she had “gastro” overnight, but was feeling better.  She presented for a medical certificate.  The evidence of the plaintiff is that this visit to Dr Rahman occurred after the accident.

45Returning to the clinical notes of Latrobe Medical Centre, I shall not go through every entry, as it is quite apparent that the plaintiff made many visits.  For example, on 24 October 2016 she saw Dr Quentin Miles because nodding and shaking her head had flared up her whiplash.  She needed some letters and other material.  When seen by Dr Zafar on 4 November 2016, the plaintiff had started doing exercises and hoped to recover well.  When seen on 2 December 2016 by Dr Zafar, she required forms to be filled out in relation to a disability permit for parking.  Dr Zafar has recorded that the plaintiff had been walking on crutches and was doing well.  When seen on 14 December 2016, she stated that, since the accident, she had been having pain in the lower limbs and hands and had been walking with elbow crutches.  She was having pain in the right hand and forearm and wanted a referral to a hand surgeon or rheumatologist.

46I note that the letter of referral from Dr Rahman to Dr Zafar on approximately 16 September 2016 contained a history of whiplash injury over a month previously and infrequent neck pain.  An MRI scan of the cervical spine of 16 September 2016 had revealed a small focus of anterior disc protrusion seen at the level of C5-6, with the comments including that early degenerative disc disease was seen with anterior disc protrusion at C5-6.  A whole body bone scan seems to have been performed on 5 December 2016.  The report of this is somewhat complicated, but the conclusion of the radiologist is that no abnormality was demonstrated in the cervical, thoracic or lumbar spine or shoulder girdles.  The history obtained had been of neck pain following a recent motor vehicle accident. 

47Earlier records of treatment that were placed in evidence by the plaintiff are those of Mr Jordan Bourke, who I understand to be an osteopath.  It is apparent that he first saw the plaintiff on 12 August 2016, three days after the accident.  He took a history of the collision in the drive-through at McDonald’s and has then noted “little bit of whiplash – turn to the left”.  There is also a reference to headaches thought to be originating from stress and a decrease in all ranges of flexion and extension, with the word “nausea” added.  In addition, there is a reference to right upper ribs.

48Mr Bourke next saw the plaintiff on 18 August 2015, when she was suffering from a bulging disc at L3-4.  His notes also refer to an appointment on 19 December 2016.  It is to be remembered that the accident occurred on 9 August 2016.  The Patient Progress Report of 19 December 2016 is to the effect that the plaintiff had been on crutches for a month – “L knee Achilles struggling”.  There was also an indication that this had been the situation for some six weeks and that she had two weeks off work.  She was trying to walk.  A podiatrist had strapped her left ankle.  She was having physiotherapy twice a week.  She was also “bad through neck and shoulders”.  However, the main concentration appears to have been on the plaintiff’s left lower leg and ankle, areas of the body which have received little attention in this application.  No report from Mr Bourke was placed in evidence.

49Dr Daniel Lee, consultant in rehabilitation and pain medicine, provided a report to the plaintiff’s solicitors on 13 April 2018.  Essentially it covers seven or eight occasions upon which Dr Lee saw the plaintiff between 19 April 2017 and 9 March 2018.  The history of the accident taken by Dr Lee has been referred to in paragraph 12.

50The plaintiff informed Dr Lee that she suffered head and neck pain from that time, but only presented to her general practitioner approximately three days later, when things got worse.  This is not consistent with some histories given elsewhere to the effect that she suffered no head or neck pain for several hours.  Indeed, as shall be discussed, her evidence before me was that her symptoms did not commence until after the occurrences at the police station – see T44.  Also, I accept that she in fact attended her general practitioner on the day following the accident.  Dr Lee observed that all radiological investigations had, in effect, been normal.  The plaintiff’s complaint was that her worst pain was in the top of the head and shoulders, but also in the right shoulder blade, right leg and right hand.  Activities made it worse.  She referred to interference with her sleep.  Her left calf was swollen when compared with the right, but she apparently attributed this to long walking.

51Dr Lee stated that the plaintiff seemed to be “considerably hyperalgesic”, which I understand to mean having an abnormal increased sensitivity to pain.  The impression which Dr Lee formed was that the plaintiff probably had persistent pain sensitisation.  He organised an MRI scan of the brain, which was normal.  A duplex ultrasound of the left leg was also normal, only revealing a very small tear of a lower leg muscle, which clearly did not explain the amount of pain that was involved.  Dr Lee leaned more towards a diagnosis of central sensitisation type pain, relating to signalling between the body and the brain.  He changed her medication.  By 2 August 2017, the plaintiff was gradually improving.  Dr Lee started her on Cymbalta, which helped localise her pain.

52Dr Lee saw the plaintiff again on 13 September 2017.  A Ketamine infusion was contemplated.  A rehabilitation program was made more difficult because of her geographic location.  Medication was again varied.  He saw the plaintiff on 10 January 2018, approximately a month after the Ketamine infusion.  He contemplated reducing her medication.  Psychiatry was discussed.  When seen on 9 March 2018, the plaintiff was keen to have further Ketamine.  Following the previous infusion, she had spent much less time in bed as a result of flare-ups and felt that she was moving better.  Her Cymbalta had been reduced.  She was on the waiting list for the Traralgon Pain Clinic.

53The diagnosis of Dr Lee was that the plaintiff had central sensitisation related to her current injury and resultant widespread pain.  These matters were more likely than not caused by the transport accident.  There had been improvement.  She was currently stable, but did have persistent pain.  Her activities were restricted.

54Dr Lee reported to the plaintiff’s solicitors again on 27 March 2019.  Since his previous report, he had seen the plaintiff on one occasion as an outpatient and over seven days as an inpatient.  The plaintiff had apparently decided to proceed with a residential type program, which had started recently.  Dr Lee’s diagnosis remained the same.  A further Ketamine infusion would be discussed.  The plaintiff had some activity restriction in social and domestic areas.

55Dr Lee reported to the plaintiff’s solicitors on a date which would appear to be 8 May 2020.  The main purpose of this report would seem to have been to obtain Dr Lee’s comments concerning a report by Dr Tim Stewart, occupational physician, who apparently examined the plaintiff at the request of her employer.  Dr Lee emphasised that central sensitisation originates in the central nervous system and is well recognised among pain specialists.  He emphasised that Dr Stewart’s area of specialty was occupational medicine, with a particular emphasis on the musculo­skeletal system, and not pain medicine or rehabilitation.  He stated that central sensitisation was the best “unifying diagnosis for her” and was an organic-based condition.  He made the observation that there was no relationship between central sensitisation and the plaintiff’s cervical spine “per se”, as pain from central sensitisation can manifest itself in any area.  Dr Lee added that it was a physiological process, rather than an anatomical one.

56Notes of a conference with Dr Lee held on 11 May 2020 were also placed in evidence.  These notes indicate that the neck was the initiating problem “but I’m not saying orthopaedic problem to neck now per se – eg no fracture or disc damage”.  He stated that the initial injury was to the neck, but “after a while the neck is ok, but pain signalling continues”.  It would then appear that he added a further opinion by way of a telephone call, the essence of which is as follows:

“For clarity, rather than saying that her neck was the cause of the central sensitization, it would be preferable to consider an injury, which included neck pain as a symptom, as the cause of her pain condition, rather than neck being solely the initiating factor.

The net outcome is a chronic pain syndrome, albeit with additional features of neurological symptoms”.

57Dr Lee provided to the plaintiff’s solicitors a further brief report dated 2 September 2020.  He indicated that the plaintiff had received a Ketamine infusion on 18 August 2020, which was effective, although it led to a mild transient liver dysfunction.  He observed that she would be unlikely to have many more Ketamine infusions in the future.  He reviewed her again in late September, when she sought a clarification of the definition of her problem.  He considered this an unusual request, “more legal-bureaucratic than medical”.  He stated that the “closest definition which she would have would be a chronic pain syndrome, which encompasses a range of conditions”.

58In relation to future treatment, Dr Lee thought that the plaintiff would be likely to need ongoing medical reviews, but it was very unlikely that she would need surgery or that a further procedural intervention would be of benefit.  Psychiatric care in relation to her secondary mental health issues would also need to be continued.

59The plaintiff has also put in evidence a Multidisciplinary Rehabilitation Discharge Report from the Victorian Rehabilitation Centre, such report being dated 17 June 2019.  It is apparent that the plaintiff participated in physiotherapy, hydrotherapy, psychology sessions, exercise and the like.  At discharge, she had not totally regained confidence in being able to ambulate without aid. Various recommendations were made in relation to sleep hygiene, engagement in social and leisure activities, volunteering opportunities and the like. 

60There is a Follow Up Assessment Report of 16 July 2019.  Essentially this referred to ongoing psychological and psychiatric treatments, as well as hydrotherapy.  A follow up appointment in four months was recommended.  It was felt that the plaintiff had progressed well since completion of the program, but had to continue to apply various strategies.  Apparently she was continuing to mobilise with a four-wheeled walker for longer distances outdoors.  She also had some anxiety when driving and reported symptoms of ongoing depression secondary to pain.  Her pain severity was described as being in the mild range. 

61A report dated 22 July 2019 from Dr Terence Norwood, general practitioner, of Newborough, was placed in evidence by the plaintiff.  He had first seen the plaintiff on 10 September 2018 and believed himself now to be her designated general practitioner.  He assessed her as having a chronic pain syndrome and possibly some fibromyalgic features.  Whilst he had not known her before the accident, he suspected that it was the main cause of her symptoms.  He also suspected that her disabilities would persist in the medium term, but some long term deterioration in function was likely.  He had referred her for psychiatric opinions and provided her with medical certificates.  He has recorded that her previous general practitioner was Dr James Bvirakare from Morwell, although there does not seem to be any material from that doctor before me.  Dr Norwood thought that the plaintiff would benefit from more Ketamine injections.  Dr Norwood was of the view that the plaintiff was unlikely to need surgery and that ongoing physiotherapy was appropriate.  He thought that her mobility was quite restricted and expected this to impact upon activities of daily living, as well as being likely to continue.  He was also aware of her prescribed treatment for GORD. 

62Dr Norwood reported again to the plaintiff’s solicitors on 2 March 2020, he having apparently been forwarded a report from Dr Ian Dickinson, who had examined the plaintiff at the request of the defendant.  He disagreed with the opinion of Dr Dickinson.  He stated that, although the exact mechanism of her chronic pain syndrome is hard to explain, he was confident that it was due to the accident.  He disagreed with the proposition that payment for her ongoing medical services should be cancelled.

63A report from the plaintiff’s treating psychologist, Mr Garry Lawler, dated 4 May 2020, was also placed in evidence.  He had seen the plaintiff on 10 occasions over the previous 15 months.  She had presented with anxiety consistent with Post-traumatic Stress Disorder and chronic pain.  He considered that her symptoms were consistent with central pain sensitisation.  He thought that the pain was originally triggered by the impact of a vehicle hitting her vehicle and the following abuse coming from the other driver.  It is not clear from his report as to whether he was aware of the nature of the accident and, as stated, appeared to be of the belief that there was abuse following it.  Mr Lawler referred to the plaintiff’s symptoms of nausea, dizziness, memory loss, pain and anxiety, which had continued and which were exacerbated by stress.  He also observed that the severity of her pain was unusual in the described circumstances, but he did not suspect malingering.  Mr Lawler also noted that the plaintiff had difficulty walking and sustaining any activity.  She had a fear of permanent incapacity.  He admitted to having had little success with psychological strategies to reduce her anxiety and pain, but there remained a possibility of recovery in the future.  However, this was “no certainty”.

64Also placed in evidence by the plaintiff was a report dated 4 May 2020 from Dr Rajiv Siotia, the plaintiff’s treating psychiatrist.  Dr Siotia first saw the plaintiff on referral from Dr Norwood on 22 October 2019.  I have already set out in some detail the somewhat dramatic description of the accident given by the plaintiff to Dr Siotia.  I would refer to paragraph 15 of this judgment.  The plaintiff also stated that she had taken leave from August to November following the accident and would get very tired at work, sleeping there during breaks.  She stopped working on 13 November 2016.  She was due to start a placement at Latrobe Regional Hospital and in fact started on 28 November 2016.  However, she was having difficulty walking due to a calf muscle tear which produced “enormous swelling”.  She had to use crutches and could not continue with the placement.  Since then, her mood had started to deteriorate significantly.  She was quite anxious about not being able to walk.  This injury would appear to be the calf muscle tear located in the left lower leg.  It would not appear to fall within the pleaded injury “aggravation of injury to lumbar spine with radicular symptoms in the legs”, as relied upon in this application and whether it arose from the accident is far from clear.  In her original affidavit, the plaintiff refers to beginning to experience persistent left leg pain in October 2016, which would be two months after the accident.  The Amended Particulars of Injury dated 12 October 2020 contain an allegation of aggravation of injury to the lumbar spine with radicular symptoms in the legs, but not to any torn left calf muscle.  In opening the case, Ms Hartley stated that the two body parts with symptoms relied upon were, in particular, the cervical spine and, to a lesser extent, the lumbar spine, along with sensitisation of the central nervous system.  No reference was made to torn left calf muscles and the like.

65The plaintiff had described to Dr Siotia a range of symptoms including dizziness; feeling heavy in the head, neck, arms and upper back; sleep disturbance; low concentration and the like.  She could not do any of the activities that she found interesting because of the pain.  She had seen four general practitioners, who she felt did not listen to what she was saying and were dismissive of her complaints.  I shall not set out the numerous symptoms and limitations of which the plaintiff complained to Dr Siotia.  Suffice to say that she did very minimal work around the house, could only drive short distances, would use a walking stick and had other problems of this nature.  Apparently she had, of her own accord, reduced the intake of one particular medication because she believed it was affecting her liver.  She had tried to reduce her intake of Cymbalta, but had been “screaming”.  She complained of a large number of current symptoms and restrictions.  However, she denied any suicidal thoughts or psychotic symptoms.  She had pain in her neck, head and knees.  There was pain present all the time and primarily in the back of her head.  It no longer went across her shoulder and thoracic area.  She had completed a Bachelor of Social Work in March 2017 - that is some 7 months after the accident.

66Referring to her mental examination on 30 April 2020, Dr Siotia described the plaintiff as being alert, spontaneous and co‑operative.  There were times when she was agitated, especially when talking about her pain and pending legal matters.  He described her thoughts as being linear and goal-directed.  Her thought content was around the effect of pain and there were times when she laboured particular incidents in her past to stress their significance.  There were no delusions.  There were no abnormal perceptions.  Dr Siotia stated that the plaintiff was quite preoccupied with pain and the effect that it has upon her.  He also reported that the neuropsychology testing done on 13 March 2020 revealed no evidence of a primary memory disturbance.  She did have fluctuating attention and variable speed of information process.  She could retain information.  Her performance in all other cognitive domains was intact.  The report also suggested that, from the available information, there was no clear evidence to suggest that she sustained a head injury in the motor vehicle accident in 2016.

67Dr Siotia considered that the plaintiff had no overt cognitive difficulty during the interview, although reporting subjective difficulty with concentration.  She seemed to have a good insight into her condition and was compliant with treatment.  He considered her judgment to be intact. 

68In relation to diagnosis, Dr Siotia stated that there were two aspects to consider.  One was her pain from the accident and the second was her mental health issues consequent to the pain and disability.  These are “heavily predicated on her experience of pain and consequent disability that she reports”.  He commented that he was not a pain specialist and that it was outside his area of expertise to opine on her pain.  He was aware that the plaintiff had been treated by Dr Lee.  Dr Siotia observed that it was outside his area of expertise to comment on whether the plaintiff’s pain could be explained by the transport accident.  However, if she was in, and had been in, significant pain since the transport accident, her current symptomatology would fulfil the diagnosis of Chronic Adjustment Disorder with mixed anxiety and depressed mood.  He did not believe that she had displayed behaviour that was consistent with the diagnosis of Somatic Symptom Disorder.  A diagnosis of Chronic Adjustment Disorder with mixed anxiety and depressed mood would be more appropriate.  Dr Siotia also observed that, if it is accepted that the motor vehicle accident caused the level of pain that she reports, it follows that the mental health injuries were also caused by the transport accident.  He thought that her current mental health symptoms were heavily predicated upon her experience of pain and that she should continue to see a psychiatrist and a psychologist.  He recounted the various restrictions on her activities as listed by her. 

69The plaintiff has also received treatment from Dr Kanishka Muruththettuwegama, consultant psychiatrist.  He reported to Dr Norwood at Newborough Health on 29 June 2019.  The history which he had obtained is simply that the plaintiff was hit by a car from behind in 2016 and probably had a whiplash injury.  There had been multiple complications, including severe pain, dizziness and a limp.  There was also reference to lack of motivation, reduced energy and the fact that her sleep had increased, she preferring to spend her time on the bed.

70These references to increased sleep and preferring to spend time on the bed are interesting observations.  In her affidavit of 10 April 2018, the plaintiff swore that she did not sleep well and was often woken due to pain.  Her affidavit of 20 September 2018 makes no reference to sleep.  In her third affidavit of 29 May 2019, she has sworn that she continued to suffer from the symptoms and restrictions set out in the earlier affidavits and that her symptoms had not improved.  This is one month prior to the history obtained by Dr Muruththettuwegama.  In her affidavit of 28 April 2020, she asserted that she continued to suffer from the symptoms and restrictions set out in the earlier affidavits, although there had been some slight improvement in those symptoms and, particularly, less pain in the knees, along with some improvement in relation to dizziness.  She does refer to chronic fatigue, but there is no mention of the fact that her sleep had increased.  To Dr Rajiv Siotia, who has been the plaintiff’s treating psychiatrist since 22 October 2019, she stated at the initial interview that sleep was a problem. 

71When interviewed by Dr Muruththettuwegama, the plaintiff appeared to be in pain and at times closed her eyes when she spoke.  Whilst her affect overall was of distress, there were no delusions, hallucinations or suicidal thoughts.  The diagnosis was one of an adjustment disorder, with a differential diagnosis being recurrent depression.  The plaintiff was described as having had a major life change “a couple of years ago”, and accordingly would benefit from specific psychotherapy.  The doctor stated that he had listened to the plaintiff’s grievances and allowed her to ventilate her emotions.

72The plaintiff has also been examined for medico-legal purposes.  A large number of these have been carried out at the request of her solicitors.

73Dr David Kennedy, sports and industrial physician, saw the plaintiff at the request of her solicitors on 18 August 2017.  I note that, in the history given by her, the plaintiff referred to intermittent episodes of low back pain between 2010 and 2015, also informing Dr Kennedy that she had suffered from anxiety and stress, which had been controlled with medication for a number of years.  She had a flare‑up of back pain and a single episode of neck pain in October 2014, undergoing a CT scan.  Her neck symptoms were resolved by the end of 2014.  She had some treatment in August 2015, but did not require any medication. 

74In relation to the accident, the plaintiff told Dr Kennedy that, when the car hit her from behind, she was thrown forward and backwards and immediately experienced pain in the neck.  She was dazed and pushed her feet hard onto the brake instinctively.  She was assessed and discharged home with medication, but her pain worsened overnight and she saw her general practitioner again the next day.  Her description of the sequence of events indicates that the plaintiff had immediate pain in the neck and was assessed and discharged home with medication, presumably for that complaint.  This does not accord with the manner in which the plaintiff’s case was opened, namely that she had a pre-arranged appointment  with her general practitioner in relation to some gastric trouble, an appointment which she kept and, at that time, did not feel any particular accident-related symptoms – see T7.  As I understand the situation, the plaintiff made no mention of the accident to her general practitioner at the pre-arranged appointment on that day.  The history recorded by Dr Kennedy does not sit well with the plaintiff’s own evidence to the Court that her symptoms commenced after the altercation with the driver and her husband at the police station – see T44.

75In Dr Kennedy’s report, there is also reference to the plaintiff being nauseous when she saw an osteopath on 12 August 2016 to the extent that the osteopath could not treat her neck complaint.  She went to Latrobe Regional Hospital.  Interestingly, she told Dr Kennedy that, by 7 September 2016, she was experiencing problems in the right hand, which was turning blue.  She also referred to having pre-existing and ongoing twitching in the little finger.  In any event, she was referred for nerve conduction studies, but refused to go because the general practitioner would not mention the motor vehicle accident on the referral form.  I note that she also told Dr Kennedy that she returned to work about one week after the accident and continued working until mid-November 2016.  She had many days off work because of problems in the neck, back and left leg.

76The plaintiff went on to inform Dr Kennedy that she had not received any physiotherapy or osteopathic treatment since 20 June 2017.  She complained of being unable to walk because of the pain in her lower back and left lower leg.  There were many other symptoms.  Dr Kennedy expressed the opinion that, following the accident, the predominant injuries suffered by the plaintiff involved damage to the cervical spine, with particular reference to the intervertebral disc at C5‑6 and an associated myofascial injury to the mid to lower cervical spine.  She had also suffered some aggravation of problems in the lumbosacral spine.  There were problems in the right forearm related to an old injury and there had been no further specific problems in the right wrist and hand as a consequence of the motor vehicle accident.  Her spinal problems had also resulted in an altered gait pattern.  Dr Kennedy thought that her ongoing problems were a direct consequence of the accident.  He considered her to be restricted in relation to repetitive bending, twisting or turning of the neck and back, along with problems in relation to repetitive manual handling activities, prolonged walking or standing and the like. 

77Dr Kennedy reported again on 12 October 2017.  He had reassessed the plaintiff on 9 October 2017, only two months after his earlier report.  It is of interest that Dr Kennedy reported that the plaintiff had stated quite clearly that, when she attended her general practitioner following the transport accident, she had advised her of the injuries to her left leg, but the general practitioner told her “in no uncertain manner” that she was not going to record any injuries to that leg, as any problems were a consequence of pre-existing injury.  I would add that no reports from general practitioners who treated the plaintiff in approximately the two years following the accident were placed in evidence by her.  Dr Kennedy referred to various reports from an osteopath, Ms Allan, who seems to have treated the plaintiff for her back and leg complaint in 2014 and early 2015.  However, it would seem that the plaintiff made no complaints of left leg pain in any attendances upon treating practitioners in the period of 12 months prior to the accident. 

78Dr Kennedy also referred to the plaintiff having a functional shortening of her left lower extremity and having worsening problems in her left leg and lower back.  He believed that she had suffered a significant change in her gait pattern as a consequence of injuries sustained in the accident.  He expressed the opinion that her left lower leg symptoms were a consequence of the injuries suffered in the accident, particularly in relation to the structures supporting the left knee, ankle and foot.  He thought that she had significant aggravation of problems in her lumbar spine.  It is to be noted that the plaintiff is not relying upon injury involving the structures supporting the left knee, ankle and foot.

79Dr Kennedy reported to the plaintiff’s solicitors for the third time on 18 March 2020.  The plaintiff informed Dr Kennedy that, since last seeing him, she had received annual Ketamine infusions and had been referred to the Victorian Rehabilitation Centre, where she had undergone a three-month program between March and July 2019.  There had been some changes in her medication.  She continued to use a mobile walker or a crutch outside her house.  She was receiving psychiatric treatment every two to three weeks, and also attending Mr Garry Lawler, a psychologist, for counselling every four weeks.  She confirmed that the accident had resulted in injuries to her neck, with pain up into her head and down into her lower back, worse on the left side, and with ongoing mobility issues.  Amongst other complaints, she said that she had problems focusing and concentrating on tasks, and cannot sit at a computer for any length of time.  (Dr Kennedy does not seem to have been aware of the fact that the plaintiff completed her Bachelor of Social Work after the accident.)  She was restricted in many activities of daily living and, for example, found it difficult to stand at the sink and lean forward.

80Dr Kennedy expressed the view that the accident was causing the organic physical injuries sustained by the plaintiff.  It was his opinion that she had suffered myofascial injuries to her cervical spine with significant problems in the lower cervical spine, including damage to the C5‑6 intervertebral disc.  She had also sustained aggravation of problems in her lumbo­sacral spine, these having been present prior to the accident, but asymptomatic for over 12 months.  He referred to her having secondary problems in the left lower leg, although whether he was aware of the suggestion of a torn left calf muscle is not clear.  She had also developed a post-traumatic stress disorder with anxiety and depression.  He believed that she had developed these problems as a consequence of the injuries sustained at the time of the accident and that it is not unusual for injuries that result in chronic pain syndromes to lead to the development of significant psychiatric and psychosocial interactions.  Dr Kennedy agreed with the proposition that the prospects of the plaintiff returning to work in the foreseeable future were extremely low.

81At the request of her solicitors, the plaintiff was seen by Dr Symon McCallum, pain physician and specialist anaesthetist, on 13 April 2019 (Dr McCallum has reported that he saw her on 13 April 2016, but that is patently wrong).  The history taken by him in relation to the accident simply seems to have been that, on the date in question, the plaintiff was “rear-ended” in McDonald’s and that this resulted in neck pain.  The plaintiff complained of neck pain; headache; shoulder pain; thoracic spine pain; dizziness; pain in the left hip, now going to the right; pain in the lateral buttocks, which can be so bad that she cannot walk; frequent knee pain; occasional tightness of the left calf; occasional decreased sensation in the hand; and occasional pins and needles when she sleeps.  The only past surgical history obtained by Dr McCallum was of tonsillectomy, adenoidectomy, and wrist surgery when the plaintiff was a child.  In relation to her present treatment and symptoms, the plaintiff apparently informed him that she had not seen a psychologist regularly and had not seen a psychiatrist for treatment.  She could use a walker for approximately 250 metres, but then had to have a break.  She could drive short distances, but struggled to do chores that involved putting her head down.  She is right handed, but used to be left handed.  She was tired, depressed and anxious, suffering from panic attacks after the accident, but not currently.  Dr McCallum noted that the CT scans from December 2016 of the lumbar and cervical spine were essentially normal, and that the MRI of September 2016 showed some early disc degeneration.

82Upon examination, Dr McCallum found that the plaintiff had normal reflexes, power and sensation in her limbs.  The cranial nerves were normal.  Her shoulders had a good range of movement, with no sign of a rotator cuff injury.  In relation to the cervical spine, she had a slightly decreased range of movement.  Lumbar flexion was about 90 degrees, with extension and rotation being “okay”.  Hips were normal.  She was clinically negative for sacroiliac joint pain.  She was tender to palpation at the lumbo­sacral junction.  He considered that the plaintiff had an altered gait, likely due to the accident, and that this could be responsible for some of the leg pain.  He believed that the right arm pain was “historical”.  He was of the view that she probably had cervical whiplash and suffered a headache from this.  He also referred to central low back pain.  Overall, he was of the opinion that she had a chronic pain syndrome.  He also thought it likely that she may have a somatic pain disorder, probably due to the accident, and that she would benefit from seeing a psychiatrist, a psychologist, and a physiotherapist.  The plaintiff may have needed to have ongoing treatment from a pain doctor.  Dr McCallum considered her prognosis to be quite poor and that she would continue to need psychiatric, psychological and physiotherapy help.  He believed her capacity for work was restricted, and referred to taking a “biopsychosocial approach”.

83In a supplementary letter of 29 July 2019, Dr McCallum thanked the plaintiff’s solicitors for their request for an amendment to his report, and it is apparent that he then supplied answers to some questions which had been forwarded to him, although I could not find these in the voluminous material provided.  He confirmed that the plaintiff’s pre‑accident medical history as set out in her affidavit was consistent with his examination and finding.  He confirmed his belief that the accident had resulted in the plaintiff having cervical whiplash, cervicogenic headache and various other symptoms.  He considered her to have a very poor level of function, and stated that she was going to be “deconditioned”.  He thought that she had a chronic pain syndrome, but also a somatic pain disorder, also known as a pain somatisation disorder.  He stated that this was “where the patient experiences pain due to psychological distress”.  He considered it impossible to say that the motor vehicle accident was of insufficient speed to cause the injuries.  Dr McCallum expressed the view that “It is impossible for us to know exactly how many G‑forces and for how long these were experienced” in the plaintiff’s neck.  Also unknown were the plaintiff’s exact situation and how tensed or relaxed her neck muscles were.  Dr McCallum was of the view that the plaintiff suffered from a chronic pain syndrome, again referring also to pain somatisation disorder.  He stated that patients suffering from this are not imagining it or pretending to have pain, nor is their behaviour abnormal.  He thought it “extremely likely” that the plaintiff’s injuries, both physical and psychological, were in part due to the accident.  He did not believe that she had abnormal illness behaviour, nor was she pretending, feigning or malingering.

84Dr McCallum reported again to the plaintiff’s solicitors on 17 March 2020, having seen the plaintiff on that day.  He stated that the plaintiff having a sudden increase in pain “quite a time” after the accident was not unusual.  She described a wide range of symptoms.  She was seeing a psychiatrist and a psychologist, which was helping.  Findings on physical examination remained much the same.  Dr McCallum made the observation that it “sounds as though Ms Spithoven was working and functioning incredibly well” until she had the accident, which resulted in a somatic pain disorder.  This observation does not seem to be entirely appropriate, given the state of the plaintiff’s health prior to the accident, as discussed previously.  He expressed the opinion that her condition was organic and a real medical condition.  He also described her as “incredibly disabled”.  He thought her prognosis to be extremely poor, and that her ability to return to work in the future was close to zero.

85Dr McCallum provided a further supplementary report on 13 April 2020.  He had been forwarded the report of Associate Professor Peter Doherty, consultant psychiatrist, who had examined the plaintiff at the request of the defendant.  It would appear that he was also forwarded the video footage of the accident.  He made the observation that it did appear that the motor vehicle accident was minor, but said that this was not uncommon when a patient develops a chronic pain syndrome or a pain somatisation disorder.  The disability and distress often appear to be out of proportion.  He also made the somewhat sweeping and interesting observation that doctors constantly underestimate the trauma and shock of an accident and are extremely likely to underestimate the pain and distress that an accident causes.  Indeed, he added that such underestimation is “extremely well recognised”, although by whom is not spelt out.  He stated that the plaintiff had a history of anxiety and depression, but was working and studying full-time.  He went on to say that the “minor motor vehicle accident happened, and her condition and life changed significantly.”

86Dr McCallum further stated that abnormal illness behaviour is often part of pain somatisation disorder.  Exaggeration is “extremely common”, related to anxiety and the like, and is part of a pain somatisation disorder.  He considered that not taking analgesics was irrelevant.  He stated that “A patient’s pain is what they say it is”.  It cannot be said that people are feigning their pain unless there is extremely strong evidence, of which he was not aware in the present case.  The fact that the accident appears to be mild is, in many ways, irrelevant.  In general, his opinion was unchanged.

87Dr McCallum provided yet another supplementary report on 8 May 2020.  In it, he expressed the opinion that the accident caused the plaintiff’s chronic pain syndrome, cervical whiplash and cervicogenic headaches, and was the cause of the pain somatisation disorder.  The accident was the triggering event.  If the plaintiff had not had the accident, she would not currently have a pain somatisation disorder.  Putting it another way, the accident caused pain to her cervical spine, which has resulted in a chronic pain syndrome, along with whiplash and headaches, and was the triggering event for a pain somatisation disorder.

88Dr Nathan Serry, consultant psychiatrist, reported to both the plaintiff’s solicitors and to the defendant on 30 November 2017.  It would appear that it was the plaintiff’s solicitors who requested Dr Serry to conduct a psychiatric impairment assessment.  The plaintiff’s history of the accident, and of her thinking that there had been an earthquake, has been referred to earlier.  To Dr Serry, the plaintiff said that she started to feel “somewhat odd” within about an hour and a half of the accident.  Her symptoms had persisted, with the most troublesome pain being in the head and neck.  He also took a history of the fact that, since the accident, the plaintiff had completed her final placement for her social work degree, doing this in 2017, although she had not engaged in any employment in this respect.

89Dr Serry recorded that, whilst the plaintiff was confident in her abilities, she felt that people did not understand what she was going through and limited her involvement with others.  She had been feeling particularly stressed and worried.  The taking of Cymbalta had levelled out her feelings of agitation, irritability and the like.  She was very cautious and watchful when driving.  She had experienced emotional distress with symptoms of stress, anxiety and depression when her marriage ended in divorce some 15 years previously, and took anti-depressants for approximately a year after that, but eventually recovered.  As at the time of Dr Serry first seeing the plaintiff on 30 November 2017, she was on anti-depressant medication prescribed by her pain doctor, but did not appear to have seen a psychiatrist or psychologist.

90Dr Serry stated that the plaintiff’s psychiatric illness arising from the accident was most consistent with a diagnosis of a separate adjustment disorder with anxious and depressed mood and with features of traumatisation.  She also appeared to have some symptoms and features of a somatic symptom disorder with predominant pain, persistent and of moderate severity.  She had struggled with her ongoing pain and restrictions and experienced a degree of fluctuating depression, ongoing anxiety and frustration.  In the opinion of Dr Serry, she had been mildly traumatised by the accident’s circumstances.  He thought that participation in a multi­disciplinary pain management program would be an appropriate therapeutic option.  He considered her condition to be substantially stable.

91Quite a considerable portion of the report of Dr Serry is directed towards Impairment Evaluation.  He considered the prognosis to be mixed.  He recommended more aggressive ongoing management of both aspects of her condition (physical and psychological).  He thought that the restrictions upon her various activities may well continue for the future.  However, he was of the view that her condition had substantially stabilised.

92Dr Serry reported next on 11 July 2019, this report being directed solely to the plaintiff’s solicitors, as the examination was requested by them.  The history taken essentially was much the same.  The plaintiff was now attending a multi­disciplinary pain management program.  She had recently commenced seeing a psychologist and a psychiatrist.  The plaintiff’s concentration and memory had been marginally better following a second Ketamine infusion in March of 2019.  It is of interest that, at this examination, the plaintiff reported that the pain in her knees and shoulders was “very unsettling”.

93Further, on this occasion the plaintiff stated to Dr Serry that, following the accident, the husband of the driver of the other car wanted to come to the plaintiff’s house to talk with her and to view the vehicle.  She felt uncomfortable with this.  They met at the police station, where he was apparently abusive and threatening.  Certain allegations were made, and the plaintiff told Dr Serry that the police were about to arrest her.  Her previous partner had to intervene.  The plaintiff had forced herself to return to the accident site very soon after the accident occurred, and can still go there, but has a “boxed in” feeling.

94Upon examination, the plaintiff was walking slowly and with a limp, using a crutch.  At times she closed her eyes, this appearing to assist her in concentrating.  Dr Serry described her as a rather intense historian.  He expressed the opinion that there was no abnormality of thought stream or form, but the plaintiff did have an ongoing preoccupation with the aftermath and sequelae of the accident, more than the actual circumstances of it.  Cognitive assessment revealed the plaintiff to be alert and orientated.  Mentation was of normal speed, but there were subjective complaints in relation to cognitive fatigue and a reduced ability to multitask.

95In expressing his conclusions, Dr Serry commenced by stating that the plaintiff had been injured “in what appears to have been a quite substantial rear-end motor vehicle accident which occurred almost three years ago”.  He diagnosed her as having a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation.  He also diagnosed a somatic symptom disorder with predominant pain, persistent and of moderate severity.  He thought it more likely than not that the plaintiff’s ongoing psychiatric symptoms had been caused by the transport accident.  He thought that she was very limited in terms of the activities that she could undertake and that such restrictions were likely to persist for the foreseeable future.  He considered the prognosis to be rather guarded, “given the persistent nature of both physical and psychiatric symptomatology and an ongoing nexus which exists between the two”.  Despite her diligent approach to treatment and the like, she still remained very symptomatic.

96Dr Serry reported to the plaintiff’s solicitors on 19 December 2019.  It is apparent that he saw the plaintiff again on that day.  I note that this was only some five months after the previous examination.  The history obtained was similar to that which had been given previously.  On this occasion, the plaintiff stated that, since the last assessment, she had deteriorated in mood and had been commenced on medication, which resulted in a degree of improvement.  That medication would appear to have been Quetiapine.  The plaintiff complained that she was having difficulty enjoying herself and that her focus was very much on just getting through each day.  There was no excitement in her life.  She had to work hard to maintain focus.  Since the commencement of Quetiapine, her sleep had improved significantly.

97Dr Serry again set out the history of what occurred at the police station on the night of the accident.  He observed that there was no abnormality of thought stream or form, but thought content revealed a degree of preoccupation with the sequelae of the accident, more so than its circumstances.  Cognitive assessment revealed her to be alert and orientated, and mentation was at approximately normal speed, but there were subjective complaints regarding cognitive fatigue and a much reduced ability to multitask.

98It is apparent that Dr Serry had been provided with a number of medical reports, including the report of Dr Dickinson, which contained the comment that the accident did not cause an organic injury to the spine and that the plaintiff’s symptoms did not have an organic basis, they not being supported by any clinical physical finding.  Dr Serry also appears to have viewed some surveillance disks, which did not contain anything that attracted his particular attention.  He thought that the plaintiff continued to present with chronic adjustment disorder with anxiety and depressed mood and with features of traumatisation.  He also diagnosed somatic symptom disorder with predominant pain, persistent and of moderate severity.  He implicated the accident and considered the prognosis to remain guarded.  The surveillance footage and report were not inconsistent with the plaintiff’s presentation and did not cause him to alter previously expressed opinions.

99Dr Serry again reported to the plaintiff’s solicitors on 24 March 2020.  It would not appear that he saw the plaintiff again, and the purpose of the report was to comment upon the report of Associate Professor Doherty of 15 March 2020 and upon the video footage of the transport accident.  He noted that Associate Professor Doherty described the plaintiff as being “involved in a very minor transport accident and had developed what appeared to be a pain problem”.  As shall be discussed, Associate Professor Doherty considered that there were significant problems with regard to the reliability of information given regarding the circumstances and severity of the transport accident.  He thought that questions arose as to the reliability, and thus the validity, of the plaintiff’s description of her symptoms and incapacity since the accident.  Associate Professor Doherty had stated in his report that the description of the accident was so out of keeping with the facts of the matter that it gave rise to the question as to whether or not the whole of the presentation was made up.  Dr Serry noted that Associate Professor Doherty concluded that there was no diagnosable psychiatric injury that could be reliably made, other than abnormal illness behaviour, the assumption of a sick role, the seeking of having needs met, her relinquishing responsibility and the seeking of compensation.

100Having viewed the video footage of the accident, Dr Serry stated that the nature of the accident was indeed very much less severe than would have been anticipated on the basis of the plaintiff’s initial thought that there had been an earthquake.  However, he said that this resulted from a somewhat distant and detached assessment in viewing the footage, and may not equate with the plaintiff’s experience at the time.  He referred to the opinions of Dr McCallum and Dr Muruththettuwegama, who felt that the claimant had an adjustment disorder with a differential diagnosis of recurrent depression, and to the reports from Dr Lee, who was of the view that the claimant had central sensitisation and resultant widespread pain and that the injuries were more likely than not caused by the accident.  Dr Serry also noted the report of Dr Dickinson, who was of the opinion that the plaintiff’s symptoms did not have an organic basis.  Dr Serry pointed out that, on the three occasions when he had assessed the plaintiff, he was of the opinion that her presentation was genuine and that her psychiatric condition was legitimate.  Whilst the video footage revealed the accident to be minor, the plaintiff’s reaction to it has been very significant.  He confirmed the opinions expressed in his most recent report in terms of diagnosis.

“Although the exact mechanism of this is hard to explain, I am confident that it is there due to the accident.”

161No further or up-to-date report from Dr Norwood was placed in evidence by the plaintiff.  As is probably evident from the above, I have some difficulty in attaching any great weight to his opinion.

162Dr David Kennedy, sports and industrial physician, provided three reports to the plaintiff’s solicitors following medico-legal examinations.  He is supportive of the plaintiff’s claim.  However, the history upon which he was basing his opinion seems to me to have been deficient in some ways, and either ambiguous or of doubtful accuracy in others.  Assuming that the history is accurately recorded, it is apparent that, when Dr Kennedy saw the plaintiff on 18 August 2017, the history obtained was that, in the accident, she was thrown forward and backwards and immediately experienced pain in the neck.  Apparently she claimed that she was dazed.  The history taken by Dr Kennedy is that, following the accident, the plaintiff drove to her general practitioner, as she already had a prearranged appointment because of problems with nausea.  She was assessed and discharged home with medication, but her pain worsened overnight.  As I have earlier stated, this description of the sequence of events seems to indicate that she was assessed by the doctor in relation to her neck injury.

163Dr Kennedy reported again only two months later, also having seen the plaintiff again.  On this occasion, Dr Kennedy referred to the accident occurring on 9 August 2016 and went on to say that the plaintiff quite clearly stated that she attended her general practitioner following the accident.  He added that the general practitioner told her that any injuries to the leg would not be recorded, as it was a pre-existing problem.  Again there is ambiguity, but the overall strong impression remains that Dr Kennedy may have been of the belief that, whatever the reason for her appointment with her general practitioner on the day of the accident, she was assessed and prescribed medication in relation to it on that day.  The third report of Dr Kennedy, it being dated 18 March 2020, adds very little to the history already obtained.

164Another difficulty with the history upon which Dr Kennedy has based his opinion is that there is no reference to the events that unfolded at the police station or to the fact that, as we now know it, the relevant symptoms did not commence until after that and a considerable number of hours after the accident.  In summary, I am not persuaded that the conclusions reached by Dr Kennedy are based upon an accurate history.  That is apart from the fact that I am also not persuaded that the plaintiff’s symptoms originate from the organic basis to which he has referred.  Whatever may be the source of her symptoms, his analysis and opinion would appear to be “one out”.  I do not accept his conclusions.

165The same could be said of the opinion expressed by Dr McCallum.  Dr McCallum is a practising anaesthetist and pain specialist.  The initial history taken by him is set out in his report of 5 May 2019.  In relation to the accident, it is simply that the plaintiff was rear-ended in McDonald’s and this resulted in neck pain.  Interestingly, he thought that the plaintiff had an altered gait which was likely to be due to the accident.  He also thought that the plaintiff had probably got cervical whiplash and had a cervicogenic headache from this.  Further, he referred to her as having central lower back pain.  He believed that she had a chronic pain syndrome and would benefit from seeing a psychiatrist.  In his report of 17 March 2020, he referred to the fact that he had reviewed reports that had been sent, in addition to seeing the plaintiff again.  He mentioned the fact that her pain had increased after the accident and that it suddenly increased “quite a time afterwards”.  There is no indication as to how detailed a history he had obtained.  In this report, and in his original report, Dr McCallum’s opinion is simply asserted without any apparent analysis of the circumstances of the accident and what occurred after it.

166Dr McCallum provided a further report on 13 April 2020, this apparently following a request that he review the report of Associate Professor Doherty of 15 March 2020 and the video footage of the accident.  Whilst conceding that the accident appeared to be minor, he stated that this was not uncommon when a patient develops a chronic pain syndrome or a pain somatisation disorder.  He also made the somewhat sweeping statement that doctors constantly underestimate the trauma and shock of an accident, and that this underestimation is extremely well recognised.  Further, he stated that exaggeration is extremely common and is part of a pain somatisation disorder.  Indeed, he also stated that the accident appearing to be mild is, in many ways, irrelevant.  In a brief letter of 8 May 2020, he asserted that the accident was the triggering event for the pain somatisation disorder.

167It may be that ultimately Dr McCallum was sent the video of the accident and observed it, noting its minor nature.  However, there was still no indication that he had any detailed awareness of the events that followed it.  Without wishing to oversimplify it, his logic at times appears to be as follows.  There was an accident, however minor.  At some later time, the plaintiff developed various symptoms.  Therefore, the accident caused the symptoms.  That is so, however unlikely such a causative link may appear to be, if the plaintiff is so asserting that the link exists.  Not only that, the injury involved is an organic one.  This opinion is stated without reference to the other events that happened on the day, including the visit to the police station and the occurrences there, all of which preceded the onset of symptoms.  In short, I am not persuaded by the opinion expressed by Dr McCallum.

168I prefer and accept the opinions of Dr Dickinson and Dr Thomas.  Both examined at the request of the defendant, but the report of Dr Thomas was put in evidence and relied upon by both parties.

169Dr Dickinson took a detailed history of the accident and some of the events which followed it.  He was not given a full account of all the plaintiff’s movements after the accident, but was aware of the trip to the shoe store and of the doctor’s appointment.  He was not told of the plaintiff’s other movements, including the trip to the police station and all that occurred there.  Upon examination, he found a full, comfortable range of motion of the cervical spine, and that there was no tenderness, muscle spasm or guarding of either the cervical or lumbar spines. There were no neurological findings, and radiological investigation recorded only minor degenerative changes in the mid-cervical region.  He expressed the firm opinion that the accident could not have caused an organic injury to the spine and that there was no diagnosis of any such injury following the accident.  He concluded that the plaintiff’s symptoms did not have an organic basis and that they were not supported by any clinical physical finding.  Her time off work after the accident was not for symptoms which had a physical basis, but was related to a difficulty with concentration.  Dr Dickinson reported again after having viewed the CCTV footage of the accident.  He referred to this as being an “exceedingly minor” incident, which would not have caused any injury.

170Dr Clayton Thomas, consultant in rehabilitation and pain medicine, reported to the defendant on 7 July 2020.  He recorded a detailed history, including the plaintiff’s visit to the police station and the fact that, at that stage, she felt as if her head “was about to explode”.  She described various symptoms that she had suffered after the accident, including that her right arm went blue.  This seems to have occurred before the end of 2016.  As earlier stated, Dr Thomas viewed the CCTV footage of the accident.  He stated that clearly it was quite trivial.  He also went on to say as follows:

“The only traumatic aspect that occurred shortly after the accident was the confrontation between her and the husband of the person who hit her.  She describes this as being quite traumatic for her.”

171In the opinion of Dr Thomas, the plaintiff’s complaint does not fit with an organic chronic pain syndrome, he thinking that a more likely diagnosis was of a somatic symptom disorder.  He thought that the genesis of her problem was more of a psychiatric one and not an organic chronic pain syndrome.  He referred to the fact that defined chronic pain syndromes include various localised pain syndromes, including complex regional pain syndromes, and conditions such as adhesive capsulitis.  In the case of the plaintiff, all investigations were normal.  As shall be discussed, he thought that her somatic symptom disorder, whilst not organic, had arisen as a result of the accident.  Whether he was linking this to what occurred at the police station is not clear, although he noted that the plaintiff described it as being quite traumatic for her.  In any event, Dr Thomas was firm in his opinion that the plaintiff is not suffering from an organic condition.

172As stated, the defendant also placed in evidence two reports which had been prepared for the plaintiff’s employer.  Dr Philip Haynes, consultant occupational physician, was given only a brief history of the accident by the plaintiff and appears to have been told nothing concerning her movements or symptoms in the hours following it, save that some two hours after the accident she noted the onset of head pain.  In any event, Dr Haynes was of the view that the plaintiff’s presentation was not consistent with any objective organic condition.  He suggested that a specific diagnosis would need to be provided by a psychiatrist in relation to her mental condition.

173Dr Timothy Stewart, consultant occupational physician, also reported to the plaintiff’s employer, this being on 27 May 2019.  The history that he took was that the plaintiff was involved in a motor vehicle accident when her car and another motor vehicle travelling in the same direction at low speed collided.  Dr Stewart noted that there was a considerable degree of anxiety associated with this particular incident, and it was obvious that the plaintiff recalled it with a great deal of apprehension.  No history of events subsequent to the accident seems to have been provided.  Dr Stewart reported that examination of the upper limbs, back and thoraco­lumbar spine were all within normal limits and that there was no evidence of any pathology or wasting of muscles in the lower limbs.  He could not formulate any diagnosis of a medical condition.  Her examination was that of someone who did not have such a condition.  He expressed doubts as to whether there was any evidence that central sensitisation, which was very rare, came under the auspices of a medical condition.

174As stated, no reports were placed in evidence from the plaintiff’s original treating general practitioners or from hospitals which she attended.  I do note that the clinical notes of Dr Rahman, her treating general practitioner at the time of the accident, include an entry on 9 September 2016 that she had a whiplash injury of one month’s duration, with infrequent neck pain.

175When all of the above is weighed up, it seems to me that the plaintiff has failed to discharge the burden of proof in relation to establishing an injury, the consequences of which satisfy the requirements of paragraph (a) of the definition of serious injury found in s93(17) of the Act. I prefer and accept the opinions expressed by those who have examined the plaintiff at the request of the defendant. The plaintiff’s situation in relation to the burden of proof is not assisted by the very, if not extremely, minor nature of the collision which constitutes the accident; the absence of reports from those who treated the plaintiff for approximately the first six months following the accident; the nature of the accident as revealed on the CCTV footage compared to some of her descriptions of it; the varying times at which she said that symptoms commenced, before agreeing that they commenced some hours after the accident and after the visit to the police station; the allegedly traumatic events which occurred at the police station and the absence of any reference to them in either opening or closing addresses on her behalf; the generally traumatic nature of the visit to the police station; and the nature and content of the expert evidence on behalf of the defendant, which I prefer to that on behalf of the plaintiff.

(ii)     The episode at the police station

176The episode at the police station on the late afternoon or evening of the day of the accident has the potential to impact upon the credibility and reliability of the plaintiff, the time of commencement of symptoms, and the cause of that commencement.  In particular, it has the potential to impact upon and be relevant to the issue of the plaintiff’s alleged mental or behavioural disturbance or disorder and the relationship of any such disorder to the accident.  I shall now deal with the issue of that episode.

177I would refer to the following questions and answers in cross-examination, which are found at T36:

“So you go to the police station and then you have a problem with the husband and you have a problem with the police, is that correct?---

That is correct, yes.

And you told one of the doctors that you were seeing for consultant purposes, you came out of the police station with an exploding head?---

That is correct.

You were angry, were you?---

No, I wasn’t angry, I was frightened.

Frightened, because the police had suggested to you something?---

No, I was – everything was finished, I was walking out through the doors.

What was finished, Ms Spithoven?---

Assessing the car, the parties left, I was walking to leave and then my head exploded.  There was no compensation.”

178I would also refer to the following, which is found at T44:

““Did your symptoms commence after the altercation with the driver and her husband at the police station?---

Yes.”

179The above answers on oath have the potential to be of considerable significance.  They put back the starting time of symptoms by several hours, in addition to providing a potential cause of them.  What occurred at the police station was a considerable disturbance, or at least perceived by the plaintiff to be so.

180It is to be remembered that, to Dr Siotia, her current treating psychiatrist, the plaintiff described the husband of the other driver as “ranting” at the police station.  She stated that six police officers came running out of the station, one of them shouting at her “Don’t you move an inch”.  To Associate Professor Doherty, she said that the husband of the other driver was aggressive at the police station; there were eight police officers present; she was arrested; and her head “nearly blew up” two hours later.  To some other examiners, the plaintiff made no mention at all of what occurred at the police station.

181The only medical witness who appears to have obtained the history of events at the police station and commented upon the role that it of itself may have played (as opposed to being part of the historical sequence of events) is Dr Serry, consultant psychiatrist, in his report to the plaintiff’s solicitors of 11 July 2019.  Dr Serry recorded that, at the police station, the husband of the other driver was abusive and threatening and the police were about to arrest the plaintiff.  Dr Serry made the observation that the plaintiff had an ongoing preoccupation with the aftermath and sequelae of the accident, more than the actual circumstances of it.  When he reported again on 19 December 2019, he again included a history of what had occurred at the police station, observing once more that the plaintiff’s thought content revealed a degree of preoccupation with the sequelae of the accident, more so than its circumstances.

182It is to be remembered that Dr Clayton Thomas, apart from making a comment that the accident was trivial, referred to the trauma of a layered confrontation.  He did record a history of plaintiff’s visit to the police station and the fact that, at that stage, she felt as if her head was about to explode.  She also described what occurred in relation to the confrontation between herself and the husband of the other driver as being quite traumatic for her. 

183As stated, some other medical examiners have little or no history of what occurred at the police station.  What is now apparent from the plaintiff’s oral evidence is that her symptoms commenced after the visit to the police station, the alleged arrest or threats thereof and the like.

184In the four affidavits sworn by the plaintiff, there is only a brief, one-sentence description of the occurrence of the accident – “I was the driver of a car that was stationary when it was hit from behind by another car” and no reference to what occurred at the police station.

185It is apparent from the above that the events at the police station are of some significance.  The next issue relates to whether the plaintiff can rely upon them as being productive of, or playing a part in the production of, the mental injury.  That is leaving to one side the fact that there is no reference to them in her supporting affidavits or in the addresses on her behalf.

186Section 3(1) of the Act contains the following definition:

“In this Act –

transport accident means an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram;”

187The word “directly” is obviously of importance.  Section 93(2) of the Act states that a person who is injured as a result of a transport accident may recover damages if certain requirements are satisfied.  Thus, an injured person can only recover damages if injured in an incident directly caused by the driving of a motor car and the like.

188“Directly” is defined in the Concise Oxford Dictionary as being “at once, without delay: presently, in no long time”.  In McGregor v Board of Agriculture for Scotland [1925] S.C. 613, it was stated that the words “directly attributable” meant the effective or immediate cause of the loss sustained.

189The insertion of the word “directly” in the definition contained in s3 of the Act must have been done for a purpose.  That the occurrences at the police station arose out of the accident is readily apparent.  The next question is whether they arose directly out of the driving of a motor car.

190I have some doubts as to whether an injury that was in fact suffered some hours after an accident readily could be said to be directly caused by it.  The situation might be different if there is simply a delayed onset of symptoms. 

191Let us suppose that there is a two-car accident.  There is some hostility between the drivers at the scene of the accident, but nothing occurs immediately.  Some hours later, the two drivers happen to be drinking at the same hotel.  A heated argument concerning whose fault the accident was breaks out and one driver punches the other, causing that driver to fall to the floor and suffer major injuries.  Could what occurred in the hotel satisfy the definition of a transport accident?  If the plaintiff in the present case had, during the course of the afternoon, gone to a motor repair establishment for the purposes of obtaining a quote in respect of the damage, and whilst there slipped on some oil on the floor and suffered injury, would that occurrence fall within the definition?  Would it fall within the definition if it occurred days after the accident?

192In each instance, I have considerable doubts.

193In relation to the events at the police station and whether or not they could be said to arise directly from the accident or from the relevant driving of a motor vehicle, I would also point out the following.  As discussed, after the accident the plaintiff drove to six different venues, including the doctor’s surgery, before driving home.  When contacted by the other driver or her husband, it seems to have been the plaintiff’s idea to meet at the police station.  When they did so meet, the alleged aggression seems to have come not from the other driver, but from her husband.  There was also the alleged intervention of a considerable number of police officers and the alleged threat or occurrence of the plaintiff being arrested.  Subsequent to this was the onset of symptoms.  Whether those symptoms arose directly from the accident seems to me to be a dubious proposition.

194What occurred at the police station seems to be closely related in time to the subsequent first onset of symptoms as described by the plaintiff.  As I have found, her symptoms do not have an organic base.  I have considerable doubts as to whether the events at the police station could, in any event, be relied upon as the foundation for such a claim.

195I turn now to the issue of whether, the plaintiff has suffered consequences which are severe within the meaning of paragraph (c) of the definition.

(iii)    The alleged mental or behavioural disturbance or disorder

196I turn now to the nature and extent of any injuries suffered of the type referred to in paragraph (c) of the definition.

197Apart from any arguments concerning events at the police station and their relevance, there are four questions to be considered.  The first is, what is the nature of the particular injury?  The second is, if the plaintiff has suffered an injury of this kind, what caused it?  The third is does the plaintiff suffer from consequences of the particular injury?  The fourth is if she has suffered consequences of the relevant type, are they sufficient to satisfy the requirements of the Act?

198In relation to those questions, I turn now to the opinions of those who have treated the plaintiff for any mental or behavioural disturbance or disorder. It is to be remembered that any behavioural disturbance or disorder must be long-term and severe – see the definition in s93(17) of the Act.

199The earliest treatment of a relevant nature would seem to be that provided by Mr Garry Lawler, psychologist.  He stated that he had seen the plaintiff on some 10 occasions over the 15 months prior to his report of 4 May 2020.  That would indicate that his treatment commenced in early February 2019.  This is approximately two and a half years after the accident.  The history taken by Mr Lawler is somewhat brief and includes an allegation of frightening abuse from the other driver following the impact.  As stated, whilst there is no soundtrack to the video, there is no indication on it that anything other than an exchange of names and addresses took place.  There is no reference to abuse or the like in the earlier histories taken by Mr Etherington and Dr Lee.

200There is no indication that Mr Lawler had viewed the CCTV footage.  That he had seems unlikely.  Thus, in his report there is no indication that he had a complete history of what had occurred.  Even so, he described the severity of the plaintiff’s pain as being unusual, given his understanding of what had occurred.  He was of the view that the plaintiff’s symptoms were consistent with central pain sensitisation and presumably he viewed this as a mental condition.  As far as can be ascertained, his treatment, as stated, commenced some two and a half years after the accident, and there is no report of any treatment after 4 May 2020.

201The plaintiff saw Dr Kanishka Muruththettuwegama, consultant psychiatrist, apparently on referral from Dr Norwood.  Dr Muruththettuwegama reported to Dr Norwood on 29 June 2019.  The history of the accident which he obtained was brief, namely that the plaintiff was hit by a car from behind in 2016 and probably had a whiplash injury.  His diagnosis was of an adjustment disorder, with a differential diagnosis being recurrent depression. Whether Dr Muruththettuwegama saw the plaintiff more than once is not entirely clear, but, in any event, his report does not take matters much further. 

202Dr Rajiv Siotia has been the plaintiff’s treating psychiatrist, following referral from Dr Norwood on 22 October 2019, in excess of three years after the accident.  I have already referred to the history of the accident as outlined by Dr Siotia and of subsequent problems, including the calf muscle tear, described by the plaintiff. 

203In his report of 4 May 2020, Dr Siotia referred to such matters as the plaintiff having no overt cognitive difficulty during the interview with him.  He thought that she seemed to have a good insight into her condition and was compliant with treatment.  He considered her judgement to be intact.  He noted that neuropsychology testing that had been performed revealed no evidence of primary memory disturbance.  The plaintiff had fluctuating attention and variable speed of information process, but could retain information.  Her performance and other cognitive domains were intact.  

204Dr Siotia also made an important observation.  He reported that the plaintiff’s mental health issues were heavily predicated on the experience of the pain and consequent disability that she described.  It was outside the area of his expertise to comment on whether her pain could be explained by the transport accident.  He also made the statement that, if it was accepted that the accident caused the level of pain that she reported, it followed that her mental health injuries were also caused by the accident. 

205However, if the plaintiff was in, and had been in, significant pain since the transport accident, her current symptomatology would fulfil the diagnosis of Chronic Adjustment Disorder with mixed anxiety and depressed mood. Dr Siotia did not believe that she had displayed behaviour that was consistent with the diagnosis of Somatic Symptom Disorder.  A diagnosis of Chronic Adjustment Disorder with mixed anxiety and depressed mood would be more appropriate.  Dr Siotia also observed that, if it is accepted that the motor vehicle accident caused the level of pain that she reports, it follows that the mental health injuries were also caused by the transport accident.  He thought that her current mental health symptoms were heavily predicated upon her experience of pain and that she should continue to see a psychiatrist and a psychologist. He recounted the various restrictions on her activities as listed by her.  It would appear that he was placing some qualifications upon his opinions.

206However, it seems to me that the opinions expressed by those with mental health qualifications and who have treated the plaintiff fall a considerable distance short of enabling her to discharge the burden of proof, based as it is on severity.  Further, their reports refer to treatment commencing in excess of two years after the accident and terminating in excess of a year ago. 

207The lack of reliability of the plaintiff and her inconsistencies in relation to the nature of the accident and her activities immediately thereafterare matters which tend to impact upon the conclusions expressed by Dr Siotia.  His diagnosis and opinion include provisos or qualifying remarks such as the following.  It was outside his area of expertise for him to comment upon whether the plaintiff’s pain could be explained by the transport accident.  His diagnosis of Chronic Adjustment Disorder with mixed anxiety and depressed mood is expressed to be conditional upon the plaintiff being in significant pain and having been in such pain since the accident.  His opinion is also subject to the proviso that it be accepted that the accident caused the level of pain which she reports.

208Further, Dr Siotia received from the plaintiff a description of events at the police station, but he has paid no overt or detailed attention to them.  In all the circumstances, the weight to be attached to his opinion is diminished. 

209It would appear that Dr Muruththettuwegama saw the plaintiff on one occasion only, or on very few occasions.  His diagnosis was of an adjustment disorder, with a differential diagnosis being recurrent depression.  However, the history obtained by him was simply that the plaintiff was hit by a car from behind and probably had a whiplash injury.  No greater detail of the accident and of subsequent activities is recorded.  It does not seem to me that a great deal of weight attaches to the evidence of Dr Muruththettuwegama.

210Turning to medico-legal examiners, Dr Serry has provided a number of reports to the plaintiff’s solicitors.  His initial report was on 30 November 2017. Whilst he stated initially that the plaintiff appeared to have some symptoms and features of asymptomatic symptom disorder with predominant pain, persisting and of moderate severity, he also expressed the view that the plaintiff had been “mildly traumatised” by the circumstances of the accident.  It is to be noted that, when he saw the plaintiff on 11 July 2019, she told him of pain in her knees and shoulders that was “very unsettling”.  Indeed, she presented as walking slowly and with a limp, using a crutch.  Whether the injuries relied upon extend to knees and shoulders would have to be described as debatable at best.

211Dr Serry thought that there was no abnormality of thought stream or form and, as earlier mentioned, that the plaintiff appeared to have an ongoing preoccupation with the aftermath and sequelae of the accident, as opposed to the actual circumstances of it.  As at the time of this report, the plaintiff was alert, orientated and mentation was of normal speed, although there were some subjective complaints.  At this time, it was Dr Serry’s belief that the plaintiff had been in “a quite substantial rear-end motor vehicle accident”.  He also referred to the ongoing nexus between the physical and psychiatric symptomatology.

212When he reported again on 19 December 2019, Dr Serry was of the view that there was no abnormality of thought stream or form, but thought content revealed a degree of preoccupation with the sequelae of the accident, more than its circumstances.  Cognitive assessment revealed the plaintiff to be alert and orientated.  Mentation was at approximately normal speed, but there were subjective complaints in relation to fatigue and the like. 

213However, even after viewing video footage of the accident, which he described as being much less severe than would have been anticipated, Dr Serry remained of the opinion that the plaintiff’s presentation was genuine. 

214Of the medico-legal reports, I prefer and accept the opinions expressed by Associate Professor Doherty.  He had taken a detailed history and viewed the CCTV footage.  He noted the comparatively small amount of relevant medication that the plaintiff was taking.  He expressed the view that he simply did not believe that the plaintiff suffered from a pain-related psychiatic condition.  He referred to conscious overstatement and embellishment, adding that a minor transport accident could not and did not cause such an apparently abnormal psychological reaction.  I might add that he appears to have reached that conclusion without attributing any weight or input to what occurred at the police station, although he did record a history of it.  Given the timing of the onset of symptoms, the nature of the accident, the unreliability of the plaintiff as a witness and the modest amount of psychological or psychiatric treatment obtained (apart from the apparent absence of any psychological or psychiatric treatment for in excess of two years after the accident), the conclusion reached by Associate Professor Doherty seems to me to be a valid and preferable one.

215I would point out that I have set out the opinions of those mental health practitioners treating the plaintiff and of Dr Serry and Associate Professor Doherty earlier in this Judgment.  Even leaving to one side the events at the police station, it is my opinion that the plaintiff has failed to discharge the burden of proof in relation to the severity of any accident-related severe long-term mental or severe long-term behavioural disturbance or disorder.  I prefer the evidence of Associate Professor Doherty.  However, the issue of the time of commencement of symptoms and the circumstances of it, bearing in mind the plaintiff’s affidavits and previous history given, is another matter which has the potential not to assist her in relation to causation of any mental condition and in relation to the discharge of the burden of proof.  Indeed, were it necessary, I would find that it does pose for her another difficulty in discharging the onus which she bears.

(iv)    Other matters in relation to loss of mental powers

216In addition to the above, the following also have some relevance to the discharge of the burden of proof and the severity of consequences which is required.

217It is to be remembered that, after the accident, the plaintiff continued with the work that was required in order for her to obtain her Bachelor of Social Work degree.  It may have been that this was something of a struggle for her, but the fact remains that she completed the course, which she had commenced in 2011, and obtained her degree in March 2017, some seven months after the accident.

218I also note from the history given to Associate Professor Doherty that the plaintiff is behind the wheel of a car daily.  I further note his observation that, at least at the time of seeing him, she was not taking analgesic medication and his observation that the nature of her pain-related psychiatric condition is said to be excessive concern about pain.  In such circumstances, not taking pain-relieving medication is most unexpected.  I also note his comment that her overall psychological or psychiatric treatment since the transport accident has been light and not consistent with the level of reported impairment in function and reported psychological or psychiatric symptoms.  I accept Associate Professor Doherty’s overall opinion that there is no diagnosable psychiatric injury resulting from the accident that could be made on a reliable basis.

(v)     Conclusion in relation to loss of mental powers

219For the above reasons, I have reached the conclusion that the plaintiff has failed to discharge the burden of proof in relation to paragraph (c).  She has failed to establish that she has a severe long-term mental or severe long-term behavioural disturbance or disorder.

(8)     Conclusion

220The plaintiff is unsuccessful.  She has failed to discharge the burden of proof in relation to either paragraph (a) or paragraph (c) of the definition.

221In summary, the application is dismissed.  I shall hear the parties as to any ancillary orders that are required.