Sprie v TAC

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-10-06194

DANIELLE ANDREA SPRIE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 to 8 March 2012
DATE OF JUDGMENT:	30 March 2012
CASE MAY BE CITED AS:	Sprie v TAC
MEDIUM NEUTRAL CITATION:	[2012] VCC 331

REASONS FOR JUDGMENT

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Catchwords: “Serious injury” application pursuant to s.93 of the Transport Accident Act 1986 – Application under paragraphs (a) and (c) of the definition of serious injury in s.93(17) – Plaintiff found not to have a serious injury under paragraph (a), but to have a serious injury under paragraph (c).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Y Rattray QC with Ms J M Forbes	Maurice Blackburn Pty Ltd
For the Defendant	Mr P A Scanlon QC with Ms L A Wood	Solicitor to the TAC

HER HONOUR:

1 The plaintiff, Danielle Andrea Sprie, makes application pursuant to s.93(4) of the Transport Accident Act 1986 (“the Act”) for leave to bring proceedings for the recovery of damages. She claims that on 16 February 2007, whilst a passenger in a motor vehicle, which was involved in a transport accident, she sustained an injury to her spine. She alleges that such injury has given rise to a permanent impairment which is a “serious injury” within the meaning of paragraph (a) of the definition of serious injury in s.93(17) of the Act. She also claims that, as a result of the same transport accident, she has developed a severe long-term mental or severe long-term behavioural disturbance or disorder, which also constitutes a “serious injury” pursuant to paragraph (c) of that sub-section. The plaintiff claims that the consequences of the impairment to her spine and of the severe long-term mental or severe long-term behavioural disturbance or disorder are serious with respect to both pain and suffering and loss of earning capacity.

The evidence of the plaintiff

2 The plaintiff is presently aged 23 years, having been born on 6 April 1988. She attended school to part way through Year 11 and then commenced a hairdressing apprenticeship, which she ceased because of difficulties with dermatitis. In July 2006, she commenced working at the Royal Freemasons Nursing Home in Wantirna, where her mother was, and still is, a manager. She initially commenced there as a casual employee and, after a couple of months, became full-time. On three days per week, she performed kitchen, laundry and cleaning duties and, on two days per week, she conducted lifestyle activities for the residents of the nursing home. These consisted of conducting exercise groups, walks, bingo competitions, music events, gardening days and a tipping competition. Immediately prior to the accident, the plaintiff was earning an average of $425 per week but, at times, she earned significantly more with overtime and shift allowances.

3 On 16 February 2007, the plaintiff was a front seat passenger in a motor vehicle driven by her sister. They were travelling through an intersection at approximately 60 kilometres per hour when a vehicle coming from the right failed to give way. The other vehicle entered the intersection at considerable speed. The plaintiff was able to see it coming. The vehicle in which the plaintiff was travelling “T-boned” the other vehicle, that is, it collided with the mid-section of the passenger side of the other vehicle. The force of the impact caused the vehicle in which the plaintiff was travelling to spin around. She apparently struck her knees up against the glove box, which smashed. The vehicle in which she was travelling was a “write-off”.

4 Following the accident, the plaintiff was taken by ambulance to Dandenong Hospital, where she remained under observation for some time. She had chest pain from a seatbelt injury and had neck and back pain and cuts and bruises over both knees. She said she felt very shaken up. An x-ray of the chest, thoracic and cervical spine taken on the day of the accident was recorded as normal (Exhibit 4).

5 The plaintiff continued to have pain in the upper and lower back and both knees. She was treated by her general practitioner, Dr Troedson, who diagnosed soft tissue injuries, and she had approximately one month off work. She returned to her job but, because of her back pain, struggled with the heavier aspects of the work, which involved bending, stretching and lifting and pushing and pulling. Her employer permitted her to cut out heavier aspects of the job, such as work in the kitchen and mopping, but she felt increasingly uncomfortable as she had to rely upon co-workers. In March 2008, she felt unable to continue and ceased work. She has not returned to such work. In 2010, over a period of about four months, whilst visiting her father in Tooradin, she sporadically assisted in his fish and chip shop for maybe one or two hours on average one or two times per week. However, during that time she was able to rest by sitting on a chair out the back of the shop. Other than this, the plaintiff has done no other work.

6 In August 2007, Dr Troedson referred the plaintiff to a rheumatologist, Dr Engel. He thought that she had sustained some soft tissue injuries at the time of the accident, but had gone on to develop a regional pain syndrome. He recommended a functional restoration/pain management program at Epworth Rehabilitation Centre.

7 In September 2007, the plaintiff saw Dr Palit at the Epworth Rehabilitation Hospital and, between February and June 2008, underwent a pain management program there. She said that she gained some understanding of the pain and ways to try to manage pain levels, but also found that she would get frequent and sudden increases in her pain. She tried to start a gym program but a lot of the machines aggravated her back pain. She began to get frustrated and depressed.

8 In March 2009, she was referred by Dr Troedson to another rheumatologist, Dr Feletar. Dr Feletar diagnosed back pain, fibromyalgia and depression. She thought that the plaintiff’s pain was exacerbated by fibromyalgia, which is a state of generalised soft tissue and muscle sensitivity amplified in response to a number of physical and psycho-social insults. She felt that the plaintiff’s sister’s death in a motor vehicle accident, which occurred previously, was a contributing factor and that she needed psychiatric evaluation. She did not feel that there had been a mechanical injury limiting her physical capacity to work but, rather, that she was mostly limited by depression and amplified pain and that her prognosis would be determined by psychiatric evaluation and management. Dr Feletar suggested that the plaintiff try an anti-depressant, Endep.

9 The plaintiff had suffered some depression when she was 16 years old, for which she was prescribed anti-depressants and, again, in 2004, following the death of her sister in the motor vehicle accident. She did not like the side effects, particularly weight gain. She tried Endep but it made her nauseated and she ceased using it. The plaintiff has trialled other medications which have also given her side effects of nausea and vomiting, so she has tended to be reliant on Panadol or Nurofen to reduce her pain.

10 In an affidavit sworn on 16 October 2009, (“her first affidavit”) the plaintiff stated that she had become depressed and pre-occupied with her back pain. Thus, she sought counselling from Julie Brown, psychologist, in April 2008 and has continued to see her on a regular basis ever since. In that same affidavit, she said she has pain through her spine from her neck down to her buttocks and, at times, the pain extends into her arms and legs and she gets a feeling of tingling and numbness.

11 In late 2010, Dr Troedson referred the plaintiff to Dr McCarthy, anaesthetist and pain management specialist. On 9 April 2011, she was hospitalised for one week for the purpose of undergoing a ketamine infusion recommended by Dr McCarthy to try to decrease her widespread hyperalgesia and pain. She received no benefit from the procedure and felt nauseated, so Dr McCarthy prescribed topiramate, 50 milligrams twice daily, for pain and the anti-depressant, Lovan, 20 milligrams at night. Dr McCarthy diagnosed widespread body pain, apparently related to a motor vehicle accident. He believed that central nervous system “microglial activation” would be an explanation for the diverse symptoms that she suffers. He thought that she had no capacity to work and was unsure of her prognosis.

12 In recent times, the plaintiff’s dosage of Lovan has been increased to 40 milligrams per day to help her mood and anxiety. In her most recent affidavit, sworn on 17 December 2011, (“her second affidavit”) and also in her oral evidence, the plaintiff said that, although she still suffers broken sleep and wakes at night with pain, her sleep has improved a bit and she no longer has nightmares about the accident and panic attacks when she wakes at night. She says that she has constant aching pain throughout her body, her energy levels are low and activity provokes worsening pain. She has gained a considerable amount of weight which she finds difficult to lose. However, she stated that an increase in her dosage of the anti-depressant Lovan (from 20 to 40 milligrams daily) had resulted in some improvement of her mood albeit that she still needs to see her psychologist fortnightly.

13 In 2010, whilst helping out her father at his fish and chip shop, the plaintiff found it hard to cope with the aching in her body and became upset and anxious about not coping, and eventually stopped going there. She does not think that she would be able to manage the sitting and concentration necessary to undertake re-training, which would involve attending classes and submitting assignments. She has a limited social life, has lost contact with many friends and does not often go out.

14 In cross-examination of the plaintiff, surveillance film of her was shown. There was some 49 minutes of film which was taken over a number of days, namely, 19 August 2011, 26 October 2011, 22 January 2012 and 1 February 2012. In the various films, the plaintiff is seen walking slowly but normally, mostly in car parks or shops. In film taken on 19 August 2011, she is seen to have no obvious restriction as she turns her head to the left and right whilst reversing her car and, at a later time, whilst at an automatic teller machine. However, on the latter occasion it seemed to me that, at times, she moved her upper body when she turned her neck. She is seen pushing a supermarket trolley, which has quite a number of items in it, although it is one of the lighter, relatively shallow trolleys rather than the usual deep trolley one would use for a full grocery shop. She is seen to be apparently unloading the trolley into the boot, but the view of her is not ideal as it is through both the windscreen and the rear window of the car. It seemed to me that she did not bend her upper body very much while this was occurring. She is then seen to walk quite briskly whilst returning the empty trolley, but at all times her back is kept straight. She gets into her vehicle without apparent difficulty and again appears to do a fairly full rotation of her neck to the left and right. In cross-examination, the plaintiff agreed that on the film she did appear to be moving her neck in a normal manner and with a greater degree of rotation than she had demonstrated in the witness box. She said that some days she is able to do that and also, she may appear to get in and out of the car with relative ease, but that did not mean that she did not have pain.

15 In film taken on 26 October 2011, the plaintiff is seen to do a 90 degree bend forward from the waist. She is beside her car and appears to be picking up a grey handbag and her car keys.[1] At a later time, she appears to bend down, again beside her car, but the view of her is obscured by the car itself.[2] Subsequently, she is seen waiting in a queue in a shop and she appears to sway slightly from side to side as she is standing and also to be moving her knees back and forth slightly.[3]

[1]12.49 on the film.

[2]13.03 on the film

[3]Approximately 13.07 to 13.09 on the film.

16 Under cross-examination, the plaintiff agreed that the film showed that, on two occasions, she bent forward, without bending her knees. She said that sometimes she does that without thinking, but she pays a price for it. In re-examination, she explained that the swaying movement seen in the film was to try and ease her back pain.

17 Further film taken on 28 January 2012 showed the plaintiff sitting in the passenger seat of a vehicle, apparently examining her face and neck in the mirror on the passenger side sun visor. She appears to be moving her head up and down and to the side somewhat, but it is difficult to get a very clear view because of passing traffic. Later that day, she is seen walking, carrying a couple of plastic supermarket bags in either hand, and is seen to do a full turn of her head to the left and, to a lesser extent, to the right. Later still, she is seen in the fruit and vegetable area of a supermarket. She disappears behind a display stand and seems to have bent down to the floor, but the actual manoeuvre is a matter of inference rather than being seen on the film. Shortly afterwards, she is seen to bend down to the floor to pick up an item, possibly her sunglasses. Her left knee is flexed and her right leg is extended behind her as she leans forward.[4] At a later stage, she is seen to slowly put down a supermarket basket on the floor to her left and does not bend her back. A short time later, she is seen standing in an aisle of the supermarket and, whilst talking on her mobile phone, seems to rock her body slightly backwards and forwards. She is then seen to pick up the basket from the floor with her right hand. Her right knee is slightly flexed and her left leg is out straight and raised as she leans to pick up the basket.[5] As mentioned, in re-examination, the plaintiff stated that she has trouble staying still and she keeps moving, not because it gives her relief, but because she gets shooting pains into her legs and such movement helps stop them.

[4]13.17 on the film

[5]13.29 on the film

18 Under cross-examination the plaintiff confirmed that she has pain from the top part of her shoulders down her spine to the lower back all the time. She also has a shooting pain down the outside of her legs to her knees, and her knees ache. The shooting pain might be daily or it could be weekly. She confirmed that she still has trouble sleeping and becomes withdrawn and easily upset, and confirmed that, as she said in her first affidavit, she has no energy or interest in meeting people and, some days, she struggles to walk out the front door.

19 She confirmed, as mentioned in her second affidavit, that recently she has developed a relationship with a man called Trent. She said that sometimes she drives from her house in Hampton Park to visit her friend Nicky, who lives in Boronia. Last November they went out to an hotel in Croydon, where she met Trent. She said that she did not dance with him, but they formed a relationship and she speaks to him every day. He drives to her house to see her, but she does not want to go out or do anything as she is in pain. Earlier this year, at the suggestion of her mother’s friend, she had used the internet to purchase a birthday present for him. This was one night’s accommodation at “The Promenade” at Crown Casino. They had gone in there together, had a meal at one of the food courts, he played on the poker machines and they went back to the room. She said that at the present time, Trent works during the day and drives to her house to see her everyday and he stays overnight.

20 The plaintiff had mentioned in her second affidavit that, in 2009, her mother and godparents took her to Phuket for her twenty first birthday. She said that she went into the pool at the hotel, but didn’t really swim. She said she performed a movement with her hands like breast stroke, but just walked along. She said they did a bit of shopping and went to a fantasy show, but she did not really leave the resort a lot. She did not go to the beach because she does not like beaches. In re-examination the plaintiff said that it was not a direct flight to Phuket. She had a stopover but, even then, she had to take tablets to ease the pain, needed a neck pillow and had to get up and walk up and down the aisle.

21 The plaintiff had mentioned in her second affidavit that in 2010 her family arranged a family trip to America. She said that during the trip she would often miss excursions and sightseeing and paced herself so that sometimes she would not go out with everyone and, at other times, if she did go out, she would sit and mind the bags while the others went off and did things. She said she needed to take a lot of extra Nurofen during this time. She said that she went to Disneyland, but did not go on any of the rides. Instead, she watched her seven year old nephew go on them.

22 In her second affidavit the plaintiff had mentioned that she went to New Zealand in March 2011 to visit a close friend whom she had not seen for six years. She said the trip was for a week and she had met her friend’s family one night and on one day, her friend had driven her around for about 15 minutes sightseeing in the town in which she lived. In her affidavit she had said that she did not do a lot apart from that, and the visit was very relaxed.

23 Under cross-examination the plaintiff volunteered that she had also done some trips in Australia. In June 2011 her mother took her and her sister and nephew to Queensland for a week to Surfers’ Paradise. She said they would go out to theme parks with her nephew, but she did not go on any of the rides. She did not go swimming, although her nephew did. After that, her mother took her to Broome where they stayed at some resort at Cable Beach, but she did not go to the beach because she does not like sand or beaches. She said she hopped in the pool for about five minutes one day, and apart from going into Chinatown for about half an hour, which she found boring, they remained at the resort and ate there or had room service.

24 In re-examination the plaintiff said that the severity of her pain varied. In addition to taking two 20 milligram tablets of the anti-depressant Lovan, each day, she also took two 50 milligram tablets of Topiramate and Panadol. She said that she had taken six Panadol on 6 March 2012 and in any one week she might need to take Panadol on about three days. She said that around the house she does vacuum and mop but it takes her about three hours to do what she would previously do in one hour, because that activity increases her pain. She says that she can drive 30 to 40 minutes to her friend Nicky’s house, but it is always a struggle, and her pain increases. She says that she does go shopping when she feels up to it and she does put her clothes in the washing machine and, at times, hangs them out. She does not feel that she could work because of her pain.

The medical evidence

25 Dr Troedson, the plaintiff’s general practitioner had a clinical note made on 13 February 2007 (that is, three days prior to the transport accident) that the plaintiff had left lumbar pain. He ordered an X-ray of her lower thoracic lumbar spine on that same day. (The plaintiff under cross-examination said she had no recollection of the complaint of back pain and did not believe that she had gone to have an X-ray of her spine prior to the accident occurring.)

26 In a report dated 26 April 2009, Dr Troedson stated that the plaintiff had suffered soft tissue injuries in the accident on 16 February 2007 and now had a regional pain syndrome. She believed that the plaintiff could work part-time with restricted duties lifting, bending etc. In her most recent report dated 9 July 2011 Dr Troedson simply quotes Dr Feletar’s diagnosis of fibromyalgia and Dr McCarthy’s diagnosis of “widespread pain syndrome with lethargy and anxiety, and repeats her view that the plaintiff is capable of part-time work with restrictions. However, she states she is guarded about the plaintiff’s long-term prognosis.

27 Dr Engel, rheumatologist, as previously mentioned, had stated in his report dated 30 October 2007 that the plaintiff sustained some soft tissue injuries in the accident and had gone on to develop a regional pain syndrome.

28 Dr Feletar, rheumatologist, as previously mentioned, had stated in her report dated 29 May 2009, that the plaintiff was suffering back pain, fibromyalgia and depression. She thought that the plaintiff was not then able to return to her pre-injury duties, mainly because of depression and amplified pain. She stated that her prognosis would be determined by psychiatric evaluation and management.

29 Dr McCarthy, specialist in anaesthesia and pain management, as previously mentioned, had stated in his report dated 16 September 2011, that his diagnosis was “central nervous system microglial activation”. He thought the plaintiff had no capacity for work and was unsure of her prognosis.

30 Ms Brown, treating psychologist, in a report dated 22 April 2009 stated that the plaintiff met the criteria for post-traumatic stress disorder, “chronic pain disorder with both psychological factors and a general medical condition” and also for a “major depressive disorder (moderate)”.

31 As far as the pain disorder was concerned, Ms Brown stated that psychological factors were considered to have an important role in the onset, severity, exacerbation and maintenance of the pain, and the symptoms were not intentionally produced or feigned. As far as the major depressive order was concerned, she considered that this was contributed to by her significant pain and impaired functioning, grief regarding the loss of her sister in a car accident in 2004, and the previous history of depression reported by the plaintiff. Ms Brown thought that psychologically, the plaintiff had a good capacity for work if she was able to develop strategies to manage her pain effectively. However, the plaintiff presented with significant difficulty in achieving this and her capacity for work was limited.

32 In a later report dated 1 July 2011, Ms Brown maintained her diagnosis of post-traumatic stress disorder, which she said was at a moderate level. She also maintained her diagnosis of a chronic pain disorder associated with both psychological factors, and a generalised medical condition. By this stage she characterised the plaintiff’s depression as a chronic adjustment disorder with mixed anxiety and depressed mood. Ms Brown repeated her previous view that, psychologically, the plaintiff had a good capacity for work if she was able to develop strategies to manage her pain effectively, but this continued to be a significant difficulty for her, and she did not have a capacity for work.

33 Dr Horsley, occupational health and rehabilitation physician, provided two medico-legal reports obtained at the request of the plaintiff’s solicitors. These were dated 10 June 2009 and 29 August 2011 respectively. At the request of the defendant, Dr Horsley attended the hearing for cross-examination.

34 She noted that on her most recent clinical examination, the plaintiff had presented with generalised tenderness on light touch palpation throughout the cervical spine, thoracolumbar spine, behind her knees above the tibia, and to a lesser extent, around the elbows. She had general stiffness of movement and a restriction of lumbar and cervical movement and difficulty raising her arms above her head. Her gait was slow and she had difficulty walking on her toes and heels and was only able to half-squat.

35 Dr Horsley’s diagnosis was the plaintiff had a chronic pain syndrome/fibromyalgia on a background of chronic adjustment disorder with mixed anxiety and depressed mood, and post-traumatic stress disorder symptoms together with panic disorder. She considered that, in order for the plaintiff to return to work, her psychological status would need to improve and her level of pain would need to reduce. She stated that the primary barrier to the plaintiff’s return to work and improving her functional tolerances with an exercise program and addressing her weight (which had increased by 40 kilograms), is her psychiatric status.

36 Under cross-examination, Dr Horsley explained that fibromyalgia is a central sensitisation/pain amplification condition whereby it is believed that the pain pathways have been sensitised as they send their signals up to the brain. It is strongly associated with a major depressive disorder and can often be precipitated by a stress reaction. She said fibromyalgia is a diagnosable condition which involves a patient having at least 11 of 18 defined trigger points along with general muscle soreness, joint stiffness, unrefreshing sleep and low energy levels.

37 Dr Horsley viewed portions of the surveillance film which had been put to the plaintiff in cross-examination. She stated that a patient with fibromyalgia might be examined one day with full range of movement, but the next day they might be stiff and have restriction of movement. People like the plaintiff who have fibromyalgia do not necessarily suffer a loss of range of motion because there is no structural damage. Rather, it was a pain amplification syndrome. She agreed that the history of the plaintiff’s activities, particularly her overseas holidays, as detailed to her by Mr Scanlon certainly suggested more capacity than the history given to her by the plaintiff.

38 Dr Horsley stated that, if you separated out the plaintiff’s psychiatric status, fibromyalgia, itself, does not prevent her from returning to work. She said that the plaintiff was unsophisticated in presentation, probably at the lower end of the intellectual spectrum and this, in combination with her psychiatric status, would make it difficult for the plaintiff to implement cognitive behavioural strategies to deal with her level of pain in order for her to participate in an exercise program. She said she deferred to psychological and psychiatric opinion in this regard.

39 Dr Weissman, psychiatrist, provided two medico-legal reports at the request of the plaintiff’s solicitors dated 11 June 2009 and 10 October 2011 respectively. Dr Weissman also attended the hearing for cross-examination, at the request of the defendant.

40 In his first report, Dr Weissman stated that, prior to the accident, the plaintiff had unresolved grief as a result of her sister having been killed in a somewhat analogous transport accident. He stated that, as a result of the accident, the plaintiff had suffered an exacerbation or aggravation of that pre-existing unresolved grief, and also new conditions, namely, post-traumatic stress of mild to moderate severity, reactive depression and anxiety symptoms of mild to moderate severity and symptoms of a chronic pain syndrome with pain focus and pre-occupation and elevated health concerns. He was not suggesting that there was no organic basis to explain the plaintiff’s pain but, rather, that there were likely psychological, functional and emotional factors contributing to an amplification of the plaintiff’s perception, sensation and experience of pain.

41 When Dr Weissman saw the plaintiff for a second assessment on 10 October 2011, he took a history that the plaintiff continued to experience “pain everywhere” and that her whole body was aching, and her pain was probably worse than when he had seen her two years previously. He considered that the plaintiff was still continuing to experience pre-existing unresolved grief. Also, she still had mild to moderate post-traumatic stress and anxiety symptoms directly due to the transport accident, although probably slightly less than previously. Further, she still had mild to moderate mixed reactive depressive syndrome with quite significant pain focus and pain preoccupation secondary to her accident-related injuries and pain. However, he said the plaintiff is also suffering from a chronic adjustment disorder with depressed and anxious mood of mild to moderate severity, as well as a chronic pain disorder associated with psychological factors and a general medical condition. He considered this adjustment disorder to be an aggravation of a pre-existing condition.

42 Dr Weissman said that, hypothetically, leaving aside the chronic pain disorder, on purely psychiatric grounds alone the plaintiff probably had at least a partial capacity to perform suitable duties. However, when her situation was considered as a whole, including her significant pain focus and preoccupation, she appeared to be totally incapacitated for all work. He noted that she was taking the anti-depressant, Lovan, at a dosage of 40 milligrams daily and thought that her depression probably would be significantly worse without that anti-depressant medication.

43 Under cross-examination, Dr Weissman said that the fact that the plaintiff may appear well-groomed or have long painted fingernails did not necessarily say anything about the way she feels on the inside because, sometimes, such grooming might be to defend against low self-esteem or confidence. Nor did he consider that the evidence that the plaintiff was having a relationship with a young man or had been on holidays, said very much about the plaintiff’s emotional state. He said, sometimes, people feel a bit better when they are away on holidays but, as soon as they return, they are not. People can be involved in relationships with another person but still be severely depressed. He said that nothing that Mr Scanlon had put to him about the plaintiff’s activities caused him to change his opinion.

44 Mr Scanlon put to Dr Weissman, “She is not severely psychiatrically impaired as a result of this accident, is she?” and Dr Weissman answered “Not true. She is.” He described her condition as “moderately severe”, taking into account her post-traumatic stress and adjustment disorder with depression and anxiety and her chronic pain disorder. He stated that this was taking into account “a whole range of factors, her quality of life, her level of function, her social, leisure and recreational activities … , her occupational capacity, her emotional and psychological pain and suffering and her apparent loss of earning capacity”. He considered that on purely psychiatric grounds alone, she had no work capacity.[6]

[6]See T160 -161

45 Mr Simm, orthopaedic surgeon, provided two medico-legal assessments of the plaintiff at the request of the plaintiff’s solicitors. These were embodied in reports dated 15 June 2009 and 3 October 2011. At the request of the defendant Mr Simm attended the hearing for cross-examination.

46 In his first report, Mr Simm gave a diagnosis of unresolved soft tissue injury, with no clinical signs of radiculopathy, and persistent pain, with clinical signs of a chronic adverse pain response. He thought there had been a reactive emotional disturbance and that she required ongoing management of chronic pain.

47 When Mr Simm saw the plaintiff more recently, she said that the severity of pain had increased and she was in constant pain, which she estimated to be 8 out of 10 but frequently, 9 out of 10. The pain extended from the mid-cervical spine, down the spine to involve the whole of the back to the sacrum, and she had pain localised to the lateral side of her right hip and into both knees. The pain from the cervical region radiated across the shoulders and she had numbness and pins and needles involving both hands and both feet. He noted that movements of the cervical spine were restricted and were associated with guarding and complaints of pain on movement, and there was quite marked restriction of thoracolumbar motion in all directions with a complaint of thoracic and lower back pain on performing these movements. As stated in his earlier report, he thought that the plaintiff had suffered a non-specific soft tissue injury to the entire spine, without signs of radiculopathy, as a result of the accident on 16 February 2007.

48 Mr Simm stated that the plaintiff had features of a chronic adverse pain response, which had been diagnosed as fibromyalgia syndrome by Professor Littlejohn. He noted a reactive emotional disturbance requiring ongoing psychological counselling, and that she was now on anti-depressant medication. He said that patients with protracted spinal pain after trauma in a motor vehicle accident often have associated emotional disturbance. He said that it is difficult to evaluate the physical condition but, in his opinion, the diagnosis remained that of unresolved soft tissue injury to the entire spine.

49 Under cross-examination, Mr Simm stated that the pain described by the plaintiff on the outside of her leg was a common pattern of referred pain, as distinct from radicular pain (which follows the distribution of the nerve). He said it was not inconsistent to have that sort of pain where an MRI scan showed no evidence of nerve compression. He explained that on the basis of his assessment, he thought that if the plaintiff could handle light objects between knee and chest height, and change from sitting and standing position as required, possibly in an office environment, then she had a capacity for light work from a physical point of view.[7]

[7]T129 - 130

50 Mr Simm was shown surveillance film taken of the plaintiff on 19 August 2011. He said that in the film, when the plaintiff reversed the car, she displayed normal or near-normal rotation as she looked rapidly to the left and right, with her chin approaching her shoulder going in each direction.[8] He said that that rapid and apparently pain free movement was different from what he had observed when he examined her, but that it was common for a person undergoing a medico-legal examination to amplify the degree of disability. He said, in his opinion, that does not necessarily invalidate the presence of an injury. He said that a person may be experiencing pain and difficulty for reasons unknown to him, or there may be an amplified presentation of the clinical situation. He agreed that the plaintiff’s degree of disability had been amplified and, in the film, was less than it had been portrayed when he examined her. Thus, as he was of the opinion that she could do light duties prior to seeing the video, he was now more of the opinion that she could do light duties.[9]

[8]T133

[9]T134 -135

51 Mr Simm stated that in the surveillance film of the plaintiff taken on 26 October 2011, he could see an instance where the plaintiff demonstrated normal thoracolumbar flexion to reach the ground. He said that three weeks earlier, he had noted on examination, that there was quite marked restriction of thoracolumbar motion in all directions, with a complaint of thoracic and lower neck pain on performing those movements. He expressed the view that, as with the cervical movement, she had amplified her condition when he examined her, and there was some degree of embellishment. He said that that tempered his view and he would have to draw the conclusion that the extent of her injury is not as claimed or observed by him in his examination.[10]

[10]T138

52 In re-examination, Mr Simm said that the plaintiff’s explanation as to why she was swaying or moving her position in the film of 26 October 2011, namely, that because she was in pain, sounded “very reasonable” to him.[11]

[11]T139-140

53 Mr Ingram, psychiatrist, had been asked by the defendant to examine the plaintiff. He had seen her on two occasions, and had produced three reports dated 26 November 2009, 28 January 2010 and 15 September 2011 respectively. In addition, at the request of the defendant, Dr Ingram attended the hearing for cross-examination.

54 In his most recent report, Dr Ingram stated that the plaintiff was mainly suffering from a chronic adjustment disorder with depressed mood secondary to her chronic pain. He calculated a nine per cent impairment using the AMA Guide’s fourth edition. In relation to this condition, he estimated two per cent related to pre-existing symptoms of depression. He stated that the plaintiff also had residual post-traumatic stress disorder symptoms, and a panic disorder, which were primary consequences of the motor vehicle accident. He considered that there had been little improvement in her condition since he last saw her, although the depression was not quite as severe as it had been, and there had been some improvement in her panic symptoms and nightmares. He recommended that she should increase her dosage of the anti-depressant, Lovan, from 20 milligrams per day to between 40 and 60 milligrams per day. He thought it was reasonable for her to continue to see a psychologist but wondered whether monthly, rather than fortnightly sessions, might suffice. He considered that, this long after the accident, her prognosis was poor, although he would not say that her condition had stabilised until she had been given a proper trial of anti-depressants at maximum dosage. He considered that it was mainly her pain that prevented her from working, although her depression contributes to her lack of enjoyment of her domestic and leisure activities.

55 Under cross-examination, Dr Ingram said he did not consider that the plaintiff showed evidence of pain when he saw her. In response to a question about her being well-groomed, he said “People who are severely depressed tend to neglect their personal appearance and their dress.” When it was put to him that the plaintiff had been on a number of holidays and overseas trips, he stated that he would not expect a person with severe depression to do that sort of thing, but someone with mild depression might. Overall, he considered that the plaintiff could not be described as someone as suffering from severe depression or a severe psychiatric impairment. He would describe it as “mild to moderate”. He said he did not feel that her depression was severe enough, in itself, to stop her from working. He saw her pain as the major factor impacting upon her capacity to work.[12]

[12]T181-183

56 Dr Hogan, psychiatrist, examined the plaintiff in June 2008, at the request of the defendant. He provided a report following that examination, dated 14 June 2008, and a supplementary report dated 29 July 2008.

57 Dr Hogan noted earlier depressive symptoms from the time the plaintiff was 16 years old, which worsened after the death of her sister. He said it was difficult, in retrospect, to judge whether those symptoms represented a chronic, perhaps mild, major depressive disorder or dysthymic disorder. He said he had an impression of personality difficulties. His diagnosis was that she was suffering a chronic major depressive disorder, exacerbated by increasing pain, with additional post-traumatic symptoms of anxiety, as a car passenger, and nightmares. He considered that the plaintiff had a chronic depressive disorder prior to the motor vehicle accident and that that would tend to produce a worse prognosis for her current exacerbation of depression. He considered her depressive symptoms were of a level of severity, in themselves, to prevent her working if she were not already so prevented by the severity of her chronic pain. He thought she needed to continue her psychological counselling and that anti-depressant medication may be of benefit. He thought the prognosis for her chronic pain and depressive symptoms was somewhat uncertain, and he anticipated a lengthy period of disablement relating to them.

58 In his supplementary report, Dr Hogan stated that, if one were to disregard the severity of her chronic pain problem, the plaintiff would be incapable of any employment on psychiatric grounds. He thought that a vocational rehabilitation program would not assist her return to employment at that time. He doubted that the depressive and post-traumatic symptoms of the plaintiff would show any response to counselling in the short or medium term. He considered that, if there was an easing of her chronic pain problem, then it was probable that her depressive symptomotology would also significantly decrease.

59 Dr Littlejohn, rheumatologist, assessed the plaintiff at the request of the defendant and provided a report dated 5 May 2010. He described his area of expertise as being a rheumatologist with specialist expertise in chronic pain syndromes. His opinion was that the plaintiff presented with typical clinical features of fibromyalgia syndrome, which fulfilled the American College of Rheumatology classification and diagnostic criteria for this disorder. He stated that fibromyalgia syndrome is one of a number of chronic pain syndromes and is due to abnormal sensitivity within the spinal cord and pain, leading to amplification of normal sensory input from muscles and other musculo-skeletal tissues. He stated that the cause for the increased sensitivity relates to central pain control mechanisms losing effect and this, in turn, relates strongly to psychological inputs. He did not think that she had any ongoing soft tissue injuries to the neck or back, and pointed out that fibromyalgia is not a structural abnormality. He considered that the plaintiff was not fit to undertake her previous occupation because of significant chronic pain and significant emotional distress, and thought that she required further pain and psychological rehabilitation prior to return to work. He considered that she would remain partially incapacitated for several months. His report concluded “further psychological and psychiatric management are the essential components for her management.”

The plaintiff’s credit

60 This was a case where the plaintiff’s credit was clearly under attack, particularly by reason of what was shown in the surveillance films taken on 19 August and 26 October 2011 and on 28 January and 1 February 2012. My overall impression of the plaintiff in the various films was that she was moving in a fairly sedentary way but, save for the two brief moments of swaying or rocking motion, there was no obvious indicator that she was in pain. On two of the three occasions when one is clearly able to see her bend over, she seems to use her knees or legs to assist her, but on the other it is a full bend without any apparent difficulty. On the various occasions where she is seen to turn her neck there is no apparent limitation of rotation. The range of movement of her back and neck is greater than that given in histories to some doctors and neck movements were more extensive than demonstrated in the witness box.

61 I am conscious that the film jumped from one time to another, that is, it was not continuous. For example, the first film shown on 19 August 2011 purports to depict activity from approximately 11:29 am until 12:36 pm, but the footage shown in Court was only of 13 minutes duration. The first film taken on 26 October 2001 purports to depict activity from approximately 9:25 am until 1.04 pm, but the footage shown in court was of less than 3 minutes duration. Similarly, the film taken on 28 January 2012 purports to depict activity from approximately 9:17 am until 1:04 pm, but the footage shown in court was of less than 7 minutes duration. Moreover, the defendant admitted that between 8 August 2011 and 1 February 2012, it had placed the plaintiff under surveillance on 11 separate days for a total of 54.75 hours, yet a total of only 49.1 minutes of film had been shown in court. Apparently, there were some occasions during the 54.75 hours of surveillance upon which the plaintiff was not sighted at all. However, it is important to put the film shown in perspective in that there is no evidence as to what the plaintiff was doing during the missing minutes or hours of the film shown. Also, although at times there appears to be no readily apparent restriction of range of movement of her neck and back, such movements are not sustained for any lengthy period. Generally speaking, her activities, although not obviously indicative of someone in pain, are of a stop/start nature (particularly in the supermarket), fairly slow and not particularly sprightly, as one might expect of a 23 year old girl.

62 Although there is evidence from some doctors of exaggerated or amplified restriction of movement, none of the doctors suggested that the plaintiff was consciously feigning or consciously exaggerating her condition. The plaintiff gave me the impression of a young woman who had very little sense of joy or exuberance. The lifestyle which she described seemed to me to be a very sedentary and rather sad one for someone of her age. Notwithstanding the discrepancy between some of the movements of her neck and back shown on the film, and what she has described in her affidavits and to doctors, I thought that the plaintiff presented as someone who genuinely believed that she was suffering the pain she described. Moreover, it stands to reason that she would be out doing some shopping on her better days. Indeed, her mother said that she had been actively encouraging her to do so. I infer that she was either not sighted, or not engaged in any activity worth filming, on the other 7 days upon which she was under surveillance. This is most likely consistent with the largely “stay at home”, sedate lifestyle described by the plaintiff and her mother.

63 The evidence as to the holidays, overseas and within Australia, taken by the plaintiff over the last few years, did not convey to me the impression of an active, jet-setting, young woman. She did not go dancing out at nightclubs or even on rides at Disneyland or the theme parks in Queensland. The sedate nature of her activities on these holidays was corroborated by the evidence of her mother. My impression was that the plaintiff’s mother was desperate to try to lighten up the relatively house-bound nature of this young woman’s life, and had actively promoted the holidays, as well as trying to get the plaintiff out of the house to do a bit of shopping. To me, it seemed a most unnatural existence that a young woman of the age of the plaintiff, who had formed a relationship with a young man, did not go out at all, except for the one night on which they stayed at “The Promenade”. For a person aged 23 not to be going out to parties, BBQs, movies, bars or nightclubs, in my view, is consistent with the behaviour of someone who genuinely believes that she is in pain and restricts her activities accordingly. It is also consistent with such belief that she has participated in a pain management program, undergone a ketamine infusion, attends regular psychological counselling each fortnight (half of which she currently pays for herself as TAC is only prepared to fund monthly counselling) and takes regular prescription anti-depressant and mood stabilising or analgesic medication as well as Panadol or Nurofen.

The nature of the plaintiff’s injury

64 Although I accept that the plaintiff genuinely believes that she suffers the pain that she describes, on analysing the evidence I find that I cannot be satisfied on the balance of probabilities, that there is a sufficient physical basis to account for her symptoms.

65 As previously mentioned, the X-ray of her chest, thoracic and cervical spine on the day of the accident were normal. A subsequent MRI on 2 May 2009 was reported as an unremarkable study with no neurocompressive lesion identified (Exhibit 5). The most recent MRI of the cervical spine on 19 December 2011 was reported as follows:

“Cause for current symptoms not determined. Apart from mild desiccation of the C5/6 disc with no associated disc narrowing, the remaining cervical discs are normal. There is reversal of the cervical or lordotic curvature raising the possibility of muscle spasm with no subluxation nor further malalignment detected. There is no central canal stenosis or evidence of myelomalacia.”

66 From a relatively early stage following the accident, it is apparent that psychological factors were an important part of the plaintiff’s presentation. As early as August 2007, Dr Engel had mentioned that, although the plaintiff had sustained soft tissue injuries in the accident, she had gone on to develop a regional pain syndrome.

67 By March 2009, Dr Feletar had diagnosed fibromyalgia, described as “a state of generalised soft tissue and muscle sensitivity amplified in response to a number of physical and psycho-social insults”. Dr Feletar thought that the plaintiff’s capacity to work was limited mostly by depression and amplified pain, and that her prognosis would be determined by psychiatric evaluation and management.

68 By April 2009, the plaintiff’s treating psychologist, Ms Brown, thought she met the criteria for “pain disorder with both psychological factors and a general medical condition”. She found that the significant barrier to the plaintiff returning to work was her inability to develop strategies to manage her pain effectively.

69 In June 2009 Mr Simm found clinical signs of a “chronic adverse pain response” and considered that the plaintiff was demonstrating “a reactive emotional disturbance” that required ongoing management of her chronic pain. By this stage, too, Dr Weissman expressed the view that, although he was not suggesting that there was no organic basis to explain the plaintiff’s pain, there were likely psychological, functional and emotional factors contributing to an amplification of her perception, sensation and experience of pain. In addition, Dr Horsley, by June 2009 considered that the primary barrier to the plaintiff returning to work and improving her function was her psychiatric status.

70 The plaintiff, herself, in her first affidavit stated that she had become “depressed and pre-occupied with her back pain”. Dr McCarthy described the plaintiff’s widespread body pain, which he thought to be consistent with “microglial activation”, but said that this was a phenomenon only diagnosable by history and non-specific findings on examination. He said he was unsure of her prognosis and could not suggest any other assistance which would be of benefit to her. This is in accordance with the view which has been expressed by Dr Hogan, in 2008. He has said that her chronic pain and depressive symptomatology was such that a vocational rehabilitation program would not assist her and, leaving aside the severity of her chronic pain, her psychiatric symptomatology rendered her incapable of any employment.

71 The foregoing evidence shows that, from soon after the accident right up until the present time, the plaintiff’s psychological state has been a prominent feature of her presentation. For this reason, I am not able to be satisfied on the balance of probabilities as to the extent to which her symptoms of pain now are physically based. I consider that the predominance of psychological factors is the likely explanation for the different labels which have been put on the plaintiff’s physical condition, namely, regional pain syndrome, soft tissue injury of a generalised nature and fibromyalgia which, by its nature, incorporates a psychological component and disavows any mechanical back problem or soft tissue injury. Thus, although I do not doubt that the plaintiff has some physical problem, I cannot be satisfied to the requisite standard that it is presently responsible for her claimed injury and impairment. Indeed, Mr Rattray of senior counsel on behalf of the plaintiff, conceded that if one were to accept that the plaintiff’s condition was one of fibromyalgia, in accordance with the view of Dr Horsley and Dr Littlejohn, there was no escaping that there was a strong psychological aetiology “which may well drive the plaintiff towards part (c) rather than (a) of the definition of serious injury.”

72 Thus, I am not satisfied that the plaintiff has proved that she has a serious injury within the meaning of paragraph (a) of the definition.

73 In my view, the preferable view of the evidence is as follows:

74 As I have said, I accept that the plaintiff does genuinely experience the widespread symptoms of pain of which she complains. However, I am satisfied on the balance of probabilities that at the present time, the aetiology of these symptoms is very largely psychological or psychiatric. The psychiatrists, Dr Hogan, Dr Ingram and Dr Weissman, all refer to the plaintiff having a pre-injury disposition to depression. This first manifested itself when she was about 16 years old and resulted in the prescription of anti-depressant medication. This was in or about 2004. Later that year, in July, her sister died in a car accident, which caused the plaintiff’s depression to worsen. Her situation appears to have improved to the point that she was working full-time at the Royal Freemasons Nursing Home in 2006 and up until the date of the transport accident. However, the plaintiff appears to have had some ongoing unresolved grief issues relating to her sister’s death and, in that sense, had a psychological state which was vulnerable to worsening should there be further traumatic stresses in her life. Hence, the transport accident in which the plaintiff was involved, particularly being an intersectional accident not dissimilar from the way in which her sister died, has aggravated and exacerbated her pre-existing depressive condition. This analysis seems to be consistent with the way in which the three psychiatrists have analysed the impact of the transport accident upon the plaintiff’s mental state.

75 Dr Ingram thought that the plaintiff was mainly suffering from a chronic adjustment disorder with depressed mood. Although his percentage impairment figures are irrelevant to the task which I have to perform, he thought that two-ninths of her impairment from this condition was pre-existing, and seven-ninths were secondary consequences of the accident and her subsequent chronic pain. However, he said that, in addition to that, the plaintiff had post-traumatic stress disorder symptoms and a panic disorder, which were primary consequences of the accident.

76 Dr Hogan considered that it was difficult in retrospect to judge the nature of her depressive symptoms from age 16 and the role of any ongoing grief reaction over the loss of her sister. However, assuming the accuracy of her history, he thought the plaintiff suffered a chronic major depressive disorder which had been exacerbated by increasing pain with additional post-traumatic symptoms of anxiety as a car passenger and nightmares.

77 Dr Weissman considered that the plaintiff’s unresolved grief relating to her sister’s death had been aggravated or exacerbated in the transport accident. In addition, she had sustained new conditions of post-traumatic stress and anxiety symptoms and features of traumatisation, new mixed reactive depressive and anxiety symptoms, and a new chronic pain syndrome.

78 Dr Weissman stated that the plaintiff satisfied the diagnostic criteria for a chronic pain disorder, which is a psychiatric diagnosis. According to the DSM-IV, the five criteria are:

(1)pain in one or more anatomical sites is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention;
(2)the pain causes clinically significant distress of impairment in social, occupational or other important areas of functioning;
(3)psychological factors are judged to have an important role in the onset, severity, exacerbation or maintenance of the pain;
(4)the symptom or deficit is not intentionally produced or feigned (as in factitious disorder or malingering); and
(5)the pain is not better accounted for by a mood, anxiety or psychotic disorder.[13]

[13]T173-174

79 The plaintiff’s treating psychologist, Ms Brown, also agreed that the plaintiff satisfied the criteria for a pain disorder, a post-traumatic stress disorder and an adjustment disorder with mixed anxiety and depressed mood. Ms Brown considered that the plaintiff had a pre-disposition to anxiety and depression and pre-existing grief relating to the loss of her sister, as well as depression and anxiety from the direct effects of the motor vehicle accident, including significant pain resulting in impaired occupational and social functioning. She considered that the plaintiff’s pre-existing grief is now minor and is secondary to the depression and anxiety from the direct effects of the motor vehicle accident.

80 Having considered the various opinions regarding the plaintiff’s mental state, I have come to the conclusion that the transport accident did aggravate her pre-existing depression as well as being responsible for new mental disorders, namely, post-traumatic stress disorder, anxiety/panic disorder and a chronic pain disorder within the definition of DSM-IV. Unlike Ms Brown and Dr Weissman, neither Dr Hogan nor Dr Ingram gave a diagnosis of the psychiatric condition of pain disorder. They may have assumed that the plaintiff’s pain was essentially physically based. However, on the evidence before me I have found otherwise.

81 Dr Ingram seems to be alone in stating that the plaintiff’s depressive condition (which he characterises as an adjustment disorder with depressed mood), is a secondary, rather than primary, consequence of the accident and her chronic pain. The evidence demonstrates that the plaintiff’s complaints of widespread pain in many parts of her body have been present since very soon after the accident and have been coupled with psychological factors. In the light of this history, I prefer the opinions of Dr Weissman and Ms Brown that the appropriate characterisation of the plaintiff’s pain condition is that of a chronic pain disorder in accordance with the DSM-IV criteria.

The issue of whether the plaintiff’s injury satisfies the definition of “serious injury” within the meaning of s.93(17)(c).

82 In order to succeed under this head, the plaintiff must satisfy the Court on the balance of probabilities that she has a severe long-term mental disorder. In Mobilio v Balliotis,[14] the Court of Appeal made it clear that the word “severe” in paragraph (c) was a stronger word than “serious”, as used in the definition in paragraph (a) dealing with impairment or loss of a body function.

[14][1998] 3 VR 833

83 It is clear that the test is subjective in that it is the effect on the plaintiff which must be considered and the consequences must be severe to the plaintiff. However, such test must be determined also by comparison with other cases in the range of possible mental disorders.[15] The consequences must also be “long-term”, which is not the same as “permanent”.[16]

[15]Humpries & Anor v Poljak [1992] 2 VR 129.

[16]Cropp v TAC [1998] 3 VR 357.

84 It was submitted on behalf of the defendant, that the Court should note that neither of the psychiatrists who had given viva voce evidence had classified the plaintiff’s mental state as being “severe”. Dr Weissman stated that the plaintiff’s psychiatric disorder was moderately severe and Dr Ingram said her depression was mild to moderate. It was submitted that the level of activity shown by the plaintiff on the surveillance film, was inconsistent with a severe mental disorder. She was able to drive when she wished and, in particular, to drive from her home in Hampton Park to the home of her friend, Nicky, in Boronia. She was able to go shopping when she wished and to cook dinner when she wished. She was able to do some housework and was functioning at a level where she was able to commence a new relationship with her male friend, Trent. She was also able to function sufficiently well to have gone on overseas trips to Thailand, the United States of America and New Zealand, and on holidays within Australia to the Gold Coast and, immediately thereafter, to Broome, all within the last three years. Mr Scanlon particularly relied upon the opinion of Mr Ingram that he would not expect someone with severe depression to be going on such holidays. Moreover, Mr Ingram had indicated that her condition was not stabilised. This, in combination with her treating psychologist, Ms Brown, commenting that “at this point in time” the plaintiff had significant difficulty in developing strategies to manage her pain effectively and did not “currently” have a capacity for work, left open the possibility that this may change in the future. Hence, the Court could not be satisfied that the “long-term” nature of the impairment had been proven by the plaintiff.

85 On behalf of the plaintiff, Mr Rattray submitted that the Court should find that the plaintiff’s psychiatric condition, being a combination of pain disorder, depression and post-traumatic symptoms, represented a severe mental disorder. These symptoms had persisted since 2007 and, in spite of anti-depressant therapy and regular psychological counselling, there had been minimal improvement. Accordingly, he submitted that the Court should have no difficulty in finding that the plaintiff’s mental disorder is long-term. In determining that the consequences of the mental impairment were severe, Mr Rattray submitted that the Court only had to look at the interference with the plaintiff’s work capacity and this, in itself, met the test of severe consequences. In addition, the Court should be satisfied that her pain has daily consequences domestically and recreationally, which are severe in the context of her being a 23 year old woman.

Analysis

86 Dr Weissman, in his evidence, made it clear that when he used the expression “moderately severe” to describe the plaintiff’s psychiatric state, he was using it from a layman’s perspective in the context of his expertise, but not in a legal construct.[17] Although it may be of some assistance to know whether a psychiatrist like Dr Weissman classifies the plaintiff in layman’s terms as having a moderately severe psychiatric condition or, as Dr Ingram states, a mild to moderate psychiatric condition, this is not determinative of the matter. The plaintiff must prove that she has a severe long-term mental disorder having regard to the consequences flowing from any mental impairment.

[17]T167

87 I must say that parts of Dr Ingram’s oral evidence were of such a generalised nature that I found it difficult to place any weight upon them. For example, when it was put to him that the plaintiff was well-groomed, with long, painted fingernails, and that someone suffering from very significant depression would tend often to be dishevelled and unkempt, he responded, “Yes, people who are severely depressed tend to neglect their personal appearance and their dress.”[18] Also, in relation to the various holidays taken by the plaintiff, he stated that you would certainly not expect someone with severe depression to be doing that kind of thing, but someone with mild depression would perhaps go on holidays.[19] Overall, I found Dr Weissman’s evidence to be more carefully considered. His view that someone being well-groomed sometimes may be a defence against their low self-esteem and confidence,[20] made good sense, as did his comment that the plaintiff having gone on holidays or having a relationship does not necessarily say very much about her emotional state. He said that, sometimes, people who are depressed feel a bit better while they are away, but as soon as they return they do not, and people who are depressed and have post-traumatic stress do go on holidays and get involved in relationships, and all of that does not tell him very much.[21]

[18]T178

[19]T181

[20]T159

[21]T165-166

88 The plaintiff’s treating psychologist, Ms Brown, expressed the opinion that the plaintiff had a good capacity for work if she is able to develop strategies to manage her pain effectively, but at this point in time, she has significant difficulty in achieving this and does not have a current capacity for work.

89 Ms Horsley, specialist occupational physician, stated that the plaintiff had completed Year 10 at school, had no specific qualifications, had literacy issues (only able to read and comprehend about half of what she reads in a newspaper), and lacks confidence. In addition, she is unsophisticated and presents as being at the lower end of the intellectual spectrum. She stated that, in order for the plaintiff to be able to participate in an exercise program and lose weight, she needs to be able to implement cognitive behavioural strategies in order to manage her pain. She thought that the plaintiff would have difficulty in this regard. Hence, she regarded the plaintiff’s psychiatric status as the primary barrier to her returning to work and improving her functional tolerances. In oral evidence, she stated, “It seems to me that she is not very psychologically minded and she would have significant difficulty in learning and incorporating those cognitive behavioural techniques and strategies.”[22]

[22]T172

90 In his most recent report dated 10 October 2011, Dr Weissman said that, if one put the plaintiff’s chronic pain disorder to one side then, hypothetically or artificially, on psychiatric grounds, the plaintiff had at least a partial capacity to perform suitable duties. However, when one looked at her circumstances as a whole, including her significant pain focus and preoccupation, she was totally incapacitated for work. It seems that it is Dr Weissman’s diagnosis of a pain syndrome, which is the real difference between his and Dr Ingram’s opinion as to the plaintiff’s capacity for work. Dr Weissman’s opinion is the same as that of the plaintiff’s treating psychologist, Ms Brown.

91 It is puzzling as to why Dr Ingram does not seem to have turned his mind to the DSM-IV diagnosis of pain disorder. Given that I have accepted that this disorder is very largely responsible for the pain that she suffers, it follows that this has a major impact on her capacity to work.

92 As long ago as mid 2008, Dr Hogan predicted a lengthy period of disablement with respect to the plaintiff’s chronic pain and depressive symptoms. He thought that a vocational rehabilitation program was unlikely to assist her return to employment at that time. He stated that if there was an easing of her chronic pain problem, then it was probable that her depressive symptoms would also significantly decrease.

93 The past five years have shown that there has been no diminution in the plaintiff’s chronic pain. Treatment has resulted in a small improvement in her post-traumatic stress symptoms and a lessening of her nightmares and anxiety attacks at night, but her depression remains. Indeed, even Dr Ingram when he last saw her in September 2011, suggested that she needed to increase her dosage of Lovan from 20 milligrams to between 40 and 60 milligrams a day, and he thought it reasonable that she continue to see a psychologist (albeit that he thought monthly, rather than fortnightly, sessions might be reasonable). Since that time, the plaintiff’s dosage of Lovan has been increased to 40 milligrams per day and Dr Weissman expressed the view that the plaintiff’s depression would probably be significantly worse without the anti-depressant medication.[23] In addition to this, the plaintiff is taking 50 milligrams of Topiramate each day. This was described by Dr Weissman as a mood stabilising anticonvulsant which is usually used for pain amelioration.[24] The plaintiff’s evidence was that, in addition to the anti-depressant, Lovan, and the Topiramate, she also would take up to six Panadol per day when required, and this might occur on three days in any week.[25]

[23]T158

[24]T168

[25]T118

94 If one examines the plaintiff’s circumstances prior to the transport accident and compares them with her circumstances now, there is a stark contrast. Although she had suffered some depression at age 16 and, particularly following the death of her sister in July 2007, for which she was prescribed anti-depressants, there is no evidence that this adversely impacted upon her capacity to work. Nor is there any evidence that the left lumbar pain mentioned in the notes of her general practitioner 3 days before the transport accident was disabling. Dr Troedson makes no mention of it being a contributing factor to her post-accident pain. From July 2006 she was working at the Royal Freemasons Nursing Home and, in her first affidavit, she stated in paragraph 11 that she really loved her job. Following the accident, the plaintiff tried various different medications, attended Epworth Rehabilitation Pain Management Program from February to June 2008, consulted two different rheumatologists, and underwent hospitalisation for a ketamine infusion organised by Dr McCarthy. She endeavoured for 12 months to keep working at her pre-injury employment, but found herself increasingly unable to manage. Since that time, her pain, particularly in her spine and shoulder area, has continued unabated.

95 Although, when one looks at part of the surveillance footage, there is some evidence that she has amplified her symptoms, this is a very brief glimpse of the plaintiff’s life in the context of injuries which have been ongoing since 2007. No one has suggested that there is conscious exaggeration by the plaintiff, and the preponderance of opinion is that she has psychological problems which erode her lifestyle and work capacity. She does a bit of sedate shopping, she now takes three times as long to do simple household tasks compared with prior to the accident, and she drives her car when she feels up to it, but otherwise she struggles and largely stays at home. The holidays which she has taken have been largely the result of encouragement given to her by her mother and godparents and her activity on those holidays sounds very tame and tempered by rest breaks. I find it a sad state of affairs that her boyfriend simply visits her at home, and, since the relationship started five months ago, the only time they appear to have gone out was on the occasion when they stayed one night at “The Promenade”, and that was at someone else’s suggestion.

96 It was put to Dr Weissman in cross-examination, that the plaintiff was not severely psychiatrically impaired as a result of this accident, and he responded “Not true. She is.”[26] Although he said, using layman’s language, he classified it as “moderately severe”, he stated that he was referring to the impact that her psychiatric condition had had upon a whole range of factors including her quality of life, level of function, social, leisure and recreational activities, occupational activity, emotional and psychological pain and suffering, and her apparent loss of earning capacity.

[26]T160

97 He said beforehand, she was a woman who was socially active and working full-time, and had plans for the future but now, on purely psychiatric grounds alone, she has no work capacity, she does not go out, she does not do that much. She is able to do some things at home and in the community and she does not have plans for the future.[27]

[27]T161

98 Dr Horsley, in her report dated 29 August 2011, noted that the plaintiff’s current functional tolerances included a sitting tolerance of 20 minutes, a dynamic standing tolerance of 20 minutes, a static standing tolerance of 15-20 minutes, a walking tolerance of 8-10 minutes and a driving tolerance of about an hour. In cross-examination, Ms Horsley said that she had not been told about the plaintiff’s trips overseas and other holidays, and she agreed that the portion of film shown to her in cross-examination made it appear that the plaintiff was someone going about her business in a perfectly normal manner, and that these matters suggested more capacity than what Dr Horsley had believed to be the case. However, she maintained that in order to engage in even sedentary employment, her functional tolerances would have to improve and she would have to have strategies in place to help her reduce her level of pain and improve her concentration and attention span.[28]

[28]T111

99 She went on to say that “the trouble with surveillance where you have got no structural problem and you have got a pain amplification syndrome, is that they are not sitting for that length of time or standing for that length of time to confirm the tolerances”.[29] I accept that as a commonsense statement from an expert witness experienced in evaluating the work capacity of injured people. There is nothing in the surveillance film which would allow me to conclude that the plaintiff would necessarily be capable of the sustained physical effort required to hold down employment where she was required to carry out work over a period of hours.

[29]T113

100 As previously mentioned, the plaintiff continues to have a mental disorder which necessitates her daily taking prescription anti-depressant and mood stabilising/pain relieving medication. She also requires fortnightly counselling from a psychologist and, on several days per week, takes up to six Panadol per day.

101 Dr Ingram, in his most recent report, stated that he would not say that the plaintiff’s condition had stabilised until she had been given a proper trial of an anti-depressant at maximum dosage. However, there is no evidence that this would alter the chronic pain syndrome or the residual post-traumatic stress symptoms or anxiety symptoms relating to travelling as a passenger in a car. No other doctor has suggested that the plaintiff’s situation, which has endured now for many years, is likely to change in the foreseeable future. Despite having undergone a pain management program and significant counselling, the plaintiff seems to have the inability to implement strategies to help her manage her chronic pain. It is possible that, if she were able to master such strategies, then she would be able to contemplate rejoining the workforce, however, all indications at present are that she cannot do so. In part, this is contributed to by her relatively low intellectual level, as well as limited literacy skills.

102 I am satisfied that on the basis of her current psychiatric condition, the plaintiff does not have a capacity for work and there is nothing in the evidence which enables me to conclude that this is likely to change in the immediate or long-term future. In these circumstances, by virtue of the impact of her psychiatric impairment on her work capacity alone, the consequences to this 23 year old woman, when judged by comparison with other cases in the range of possible impairments, is a severe consequence. I also regard the diminution of the plaintiff’s domestic and recreational activities to be severe. Her weight has increased by 40 kilograms since the accident. She appears to have a very empty social life, except for her boyfriend visiting and drives about once per month (sometimes more, sometimes less) to her friend Nicky’s house. The sedate, largely “stay at home” lifestyle of the plaintiff is one which might normally be expected of a retiree in the later years of life, rather than a 23 year old woman. She impresses me as someone who derives little enjoyment or stimulation from life. This is supported by the evidence of her mother, who in an affidavit sworn on 1 March 2012 and in her oral evidence, described her as lethargic and depressed. She said she tried to keep the plaintiff active by giving her small tasks or duties such as shopping or vacuuming, so that she feels valued. This is a severely different picture from the young woman who enjoyed working five or six days at the Royal Freemasons Nursing Home, would attend the gym regularly and go water-skiing and also would socialise regularly on a Friday or Saturday night, or go to the movies during the week.

103 Thus, I am satisfied that the plaintiff has discharged the burden of proof that she has a serious injury within the definition of paragraph (c) of serious injury in s.93(17). Accordingly, the plaintiff is given leave to issue proceedings for damages for such injuries resulting from the transport accident on 16 February 2007.

[2012] VCC 331

30 March 2012