Stewart v TAC
[2016] VCC 1950
•19 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02809
| Jaclyn Stewart | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 December 2016 | |
DATE OF JUDGMENT: | 19 December 2016 | |
CASE MAY BE CITED AS: | Stewart v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1950 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: TRANSPORT ACCIDENT – s93(17) of the Transport Accident Act 1986 (Vic) – severe long-term mental disturbance or disorder
Legislation Cited: Transport Accident Act 1986 (Vic)
Judgment: Leave is granted to the plaintiff to issue common law proceedings in respect of the injuries sustained in the transport accident on 11 June 2012
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Thompson QC with Mr S Smith | Arnold Thomas Becker |
| For the Defendant | Ms R Annesley QC with Ms D Manna | TAC |
HER HONOUR:
1 Ms Jaclyn Stewart, the plaintiff, seeks leave under s93(17) of the Transport Accident Act 1986 (“the Act”) to issue proceedings for the recovery of damages in respect of a severe long-term mental disturbance or disorder suffered as a result of the death of her older brother, Luke, in a transport accident on 11 June 2012, when he was 30 years old and she was 27.
2 The plaintiff says that while she suffered from some depressive and obsessive-compulsive symptoms prior to the transport accident (as a result of some workplace issues she experienced as a teacher when she had throat nodules requiring surgery), for which she was having treatment and taking anti-depressant medication,[1] she was working close to full time hours as a relief teacher before the transport accident.[2] After the transport accident she developed a complex psychiatric condition (whether bipolar disorder currently in remission with medication or an exacerbation of a pre-existing but relatively asymptomatic “vulnerability” to the disorder, along with an unresolved complicated grief reaction, chronic post-traumatic stress disorder symptoms and chronic Major Depressive Disorder) which has left her unable to continue working in her vocation as a primary school teacher, socially withdrawn, taking daily medication (Lithium and Zoloft), suffering interference with her sleep, unable to travel alone, unable to move out of home, fearful of cars, and working 25 hours per week in an administrative support role in the engineering department of a Council, a job which gives her little satisfaction. The plaintiff says that the change in her psychological condition after her the transport accident and the sequelae of it, are so great that they satisfy the definition of “serious injury,” that is, a “severe long-term behavioural or mental disturbance or disorder”.
[1] PCB p.7
[2] PCB p.7; 17a
3 The defendant says that the plaintiff has a fixed idea that all her post- transport accident mental health problems stem from her grief at the loss of her brother in the transport accident, and for this reason more weight ought to be given to medical opinion, in particular the medico-legal opinion of psychiatrist Dr Doherty. He assessed the plaintiff, reviewed the opinions of treating and other medico-legal psychiatrists, and concluded that her bipolar disorder is congenital and could not have been caused by the transport accident. In any event, the defendant says, the weight of medical opinion is to the effect that her bipolar disorder is in full remission. According to Dr Doherty, any residual grief and depressive symptoms are to be seen as part of the depressive cycle of the bipolar disorder, and the plaintiff’s treating psychiatrist, Dr McIntosh, considers that the residual obsessive-compulsive symptoms are not particularly debilitating. On this basis, the defendant says, even if causation is established, any psychological condition currently suffered by the plaintiff has either resolved or is mild and does not satisfy the threshold for the grant of leave.
4 I turn to the plaintiff’s evidence. She is 30 years old, and completed VCE at school, followed by a Diploma of Hospitality Management, a Bachelor’s degree in Hospitality and Tourism, and then a Diploma of Education. Her vocation was to be a teacher. Prior to being a primary school teacher she had taught hospitality. She loved children.
5 In mid-2008, she commenced employment as a Physical Education teacher at a primary school. She was employed there full-time in early 2009. She worked hard, at times correcting work and preparing lessons until 11pm. In early 2011, while still employed there, she was diagnosed with vocal cord nodules. She felt that she was not appropriately supported by her school principal in relation to this problem and made a WorkCover claim. She developed some obsessive, repetitive behaviours (mainly hand washing). She was prescribed Efexor by her doctor, Dr Zebic, for her low mood in relation to her voice nodule and work problems. The dosage of Efexor rose from 75mgs in September 2011 to 225mgs in late October 2011,[3] but at the hearing the plaintiff denied this was because her mental health had deteriorated during that period.[4] She said that she was stressed because of her throat nodules and the financial difficulties when she reduced her hours of teaching,[5] and that her brother Luke was helping her. Dr Zebic referred her to a psychiatrist, Dr Rohan McIntosh in 2012.
[3] Transcript p.27
[4] Transcript p.28 ln.9
[5] PCB p.7; Transcript p.26-28
6 She was told by her surgeon not to work outside.[6] She resigned her permanent position in early 2011 and was re-employed on reduced hours, three days per week (one day on, one day off), doing casual relief work. She also did some work at the Moonee Valley Council. She had a mortgage to pay. She had surgery to remove the nodules in November 2011. She was then given clearance to work full-time, and did so from the start of the 2012 school year, doing casual relief teaching on a near full-time basis. She was also working as a barista on Saturdays at the Mooney Valley Racecourse. She had begun to make inquiries about obtaining a full-time teaching position to start in January 2013.[7] She was an outgoing person with had a wide circle of friends. She was the main organizer of their events, and travelled frequently away with them or with her brother and parents. She was close to her brother, and would attend football with him and socialise with him. He was her “best friend”[8]. She was not in a long term relationship, but she was “functioning and…normal”[9] before her brother died.
[6] Transcript p.18
[7] PCB p.12a
[8] PCB p.8, para. 9
[9] Transcript p.37 ln. 22
7 The plaintiff’s brother died when the car he was driving, which was parked on the side of a road, was struck by a recycling truck. After the transport accident, the family was notified by police of her brother’s death in the middle of the night. The family attended the morgue and the plaintiff saw her brother’s body. His eyes were still open. Her life “fell apart fairly quickly”[10] as she suffered her first manic episode. She stopped work for about 4-5 months and went back to see Dr McIntosh for a second time. He prescribed Zyprexa.[11] She withdrew socially. She went back to work doing part time relief teaching, but struggled with it. She attempted to travel alone to the USA but could not cope and flew home 24 later. At the hearing, she said that her condition stabilised because she was heavily medicated. She managed to attend a family wedding in Canada with her family, but was heavily medicated. On her return, with the assistance of the medication, her manic symptoms subsided and she was no longer suicidal.[12] She worked one to two days per week teaching. She started seeing a psychologist, Mr Read, in March 2013.[13]
[10] PCB p.8
[11] PCB p.16
[12] Transcript p.41 ln.31
[13] PCB p.70
8 In May 2013, her grandmother died. The plaintiff “had another breakdown”[14] and was admitted involuntarily to a psychiatric hospital for 2 weeks. She was diagnosed with Bipolar Disorder and was prescribed Lithium. She continued to take Efexor. She was off work for a further 4-5 months. She was unable to return to her teaching job. She was unable to return to work as a barista, because it was a social job which she found too stressful. She has gained significant weight since her brother died.
[14] PCB p.8
9 She found alternative employment with Moonee Valley Council, working 25 hours per week, in an administrative support role in the Engineering Department. The job does not involve a lot of social interaction and involves a lot of organization over the phone. She has been there for over two years. She has difficulty concentrating but manages the work. It is not what she wants to be doing as she feels she should be a teacher, however, she kept crying at work and could not go back to her pre-injury employment conditions. She misses teaching and working with children. She gets anxious and nervous during the day. She is constantly fidgeting with her hands and repeatedly washing them and has taken up knitting to keep her hands busy. Since her brother’s death, she has developed a long list of obsessive-compulsive tendencies. She has managed to go on family ski trips and on family trips to Queensland on Luke’s birthday. Whereas she used to be the social “glue” of her friendship circle, organising many of their activities, and seeing them 2-3 times per week, she now only goes out about once per month.[15] She attends functions. She puts on a brave face at work and when she goes out. She walks the family dog. She wakes at night with memories of being woken by police when her brother died.[16] She needs a lot of structure to help her get through the day. She no longer sees her psychologist, Mr Reid, whom she saw 10 times, because she is now doing the best that she can. She is on daily Lithium and is taking Zoloft.[17] She sees Dr McIntosh every six months. Dr Zebic is no longer her general practitioner.
[15] PCB p.7; Transcript p.48
[16] PCB p.11
[17] Transcript p.78
10 Although she has an investment property bought partly with the money she inherited from her brother, as well as a second investment property, she is reluctant to move out of home.[18] She lives day by day and tries to keep close to her family.
[18] PCB p.11
11 Had the plaintiff continued teaching, she says that her salary would have continued to rise annually until she was at the top of Band 1, when she would have earned around $73,238 per annum.[19] In the 2015 and 2016 financial years she worked part-time with the Moonee Valley Council, three days per week, earning around $5000 per year. She has recently moved to a more administrative role, photocopying and scheduling meetings, to avoid interacting with people, which she found exhausting. In the 2015 financial year, she earned $42,700 doing that work.[20] She had to give up her previous casual work as a barista because she did not feel psychologically able to cope with it.[21]
Treating Practitioners
[19] PCB p.12b
[20] PCB p.12b
[21] PCB p.12b
12 David Read, clinical psychologist, saw the plaintiff on 12 occasions between March 2013 and March 2014. He diagnosed her with complex Bereavement and Major Depressive Disorder. He described her as “no longer actively suicidal”[22] but “is best described as being absolutely apathetic to life”[23]. “Jaclyn has no desire to live, but at the same time no intention to take her own life at present. This I believe is still in a delicate balance and would be most concerned if Jaclyn experienced further loss in the near future. I have no doubt she would again become actively suicidal”[24].
[22] PCB p.72
[23] PCB p.72
[24] PCB p.72
13 Dr Rowan McIntosh, psychiatrist, has treated the plaintiff since January 2012. At that time, he wrote to her referring doctor, Dr Zebic[25] that the plaintiff had some perfectionist tendencies that led her to work excessive hours as a teacher, and had developed “a mild obsessive compulsive aspect to her mood/stress problems”[26], employing a list of rituals and routines. He noted her complaint of unpleasant side effects with Efexor, but felt it was helpful for her mood and anxiety and should continue at a modest level. He noted her grievances about the way she was treated by her previous school principal and encouraged her to work part time initially and consider some mindfulness training. He felt that if she was to succeed as a teacher she would need to modify some of her perfectionist standards.
[25] PCB p.13
[26] PCB p.13
14 On 26 January 2012, Dr McIntosh wrote to Dr Zebic[27] that the plaintiff was clearly manic, was taking Zyprexa and was taking his advice not to have a credit card or work for the time being. He felt that her obsessive compulsive thinking “might have exacerbated her vulnerability towards a more manic type grief response”[28].
[27] PCB p.15
[28] PCB p.15
15 On 28 April 2013, Dr McIntosh reported to the TAC[29] that when he assessed her in January she was clearly hypomanic, bordering on frank mania, and was psychiatrically unfit for all work. Her parents were advised to stay at home with her for a few weeks to provide semi-constant care. In July 2012 she was still hypomanic/manic, and expressed a confidence in her ability to travel which he did not share. By late August 2012 she was much more rational, but also flat and apathetic. She went to the USA but suffered from anxiety and panic and returned home immediately. She was teaching two days per week but “her mental state hasn’t settled to the fairly stable mental health that she had at the time her brother died”[30]. As at August 2012, he diagnosed an “affective illness” of moderate severity[31]. He stated that there was no pre-existing history of bipolar disorder/hypomania, and although she had a history of “stress/anxiety/mild depression”[32], “these symptoms were in abeyance (i.e. very low) at the time of her brother’s car accident. He had the impression that her mental health “was really quite good in the three to six months before her brother died”[33]. He concluded that she has “some sort of vulnerability towards stress/anxiety symptoms – and it is ‘possible’ (but no means likely) that her brother’s death has ‘unleashed’ a vulnerability towards a bipolar problem (i.e. manic depressive illness)”[34]. At that stage he was not convinced that the plaintiff had “true bipolar disorder”, as she only took Zyprexa for a few months and her symptoms continued to resolve very slowly thereafter.
[29] PCB p.17
[30] PCB p.20
[31] PCB p.20
[32] PCB p.20
[33] PCB p.21
[34] PCB p.21
16 On 18 May 2015, Dr McIntosh reported to the TAC[35] that the plaintiff’s mental state was clearly “reasonable”[36] in the months prior to her brother’s death. “Despite never having previously experienced/described any symptoms with bipolar disorder (e.g. racing thoughts, pressured speech etc)[37]” she clearly developed hypomanic and then manic symptoms within days of her brother’s death.[38] He noted the plaintiff’s second hypomanic episode after her grandmother’s death, her admission to hospital and her commencement on lithium. He felt that there had been a “progressive incremental improvement”[39] in the plaintiff’s presentation and level of functionality in the two years to May 2015. She was on a reduced dose of Lithium after some unpleasant gastric side-effects, from 450mg to 250 mg, and was taking Lexapro as well. He felt that the current dose of Lithium was not as therapeutic as the previous dose. She was working more hours than before. He felt that her mood continued to fluctuate and this “is probably reflective of the more bipolar dimension to her problems”[40]. He concluded:[41]
As to the question of whether it is possible to suggest that a given proportion of Ms Stewart’s symptoms are related to her pre-existing (constitutional vulnerability) or whether they are related to the more bipolar dimension of her problems (which arose in the days after her brother’s death) I would suggest that this is very difficult. However, it remains my overarching impression that Ms Stewart would not have become manic had her brother not died in such tragic circumstances. Therefore it is quite possible that her vulnerability towards bipolar type problem would not have appeared (perhaps for some years or perhaps forever).
[35] PCB p.24
[36] PCB p.25
[37] PCB p.25
[38] PCB p.25
[39] PCB p.25
[40] PCB p.26
[41] PCB p.26
17 Dr McIntosh stated that he would continue to see the plaintiff every 3 to 6 months, and that while she might benefit from some more general psychological therapy he felt that she was quite independent and wanted to minimise her need for psychological assistance.
18 On 26 July 2016, Dr McIntosh reported to the plaintiff’s solicitors[42] that he sees the plaintiff intermittently, but felt that her overall situation is relatively stable. She was working 25 hours per week. He felt that “her two psychiatric vulnerabilities remain relatively contained”[43]. She has some ongoing issues with regard to obsessionality, needing to adhere to a structured daily routine and having trouble deviating from this. She also has some ritual behaviours. These OCD symptoms have not improved with treatment from Dr Mogan and “will probably continue at some intensity”[44]. In relation to her bipolar vulnerability, he noted that the plaintiff has agreed to continue on a low dose of Lithium (250mg to 500mg nocte). She had ceased taking Lexapro because of side effects and he felt that she may need to take an alternative medication, such as Zoloft, if the OCD symptoms escalated. He concluded:[45]
….I think it is reasonable to suggest that Ms Stewart’s psychiatric vulnerability has essentially stabilised. She still has a mild undercurrent of OCD to deal with on an everyday basis. She gets to work reliably. My understanding is that she is socialising to a degree and I remain of the view that Ms Steward would be wise to persevere with a small to modest dose of Lithium for the next few years – although I have some doubt as to whether Ms Steward should persevere with Lithium indefinitely given that her first manic episode was clearly related to her brother’s death and her second manic episode related to her grandmother’s death.
[42] PCB p.28
[43] PCB p.28
[44] PCB p.28
[45] PCB p.29
19 On 29 November 2016, Dr McIntosh provided a brief supplementary report[46] in which he noted that after ceasing Lexapro the plaintiff reported a worsening of her OCD symptoms, and she agreed to a trial of a very small dose of Zoloft. She was continuing on a very low dose of Lithium (a “more definitive dose of Lithium is probably in the order of 750mg to 1mg daily”[47]). He felt that her OCD is “at the milder end of the range”[48] and “is not particularly debilitating”[49]. He felt that the “more bipolar dimension to her vulnerability only appeared in the context of her brother’s tragic death”[50], and that it was “rather unlikely”[51] that she could become profoundly manic again, although it could happen in the event of “significant life adversity”[52]. He felt that it might not be necessary for her to take Zoloft in the longer term if her mental state remains fair. He felt that in the light of her “fairly mild symptoms”[53], he did not need to see her until February or March next year.
Medico Legal Reports
[46] PCB p.29A
[47] OCB p.29A
[48] PCB p.29B
[49] PCB p.29B
[50] PCB p.29A
[51] PCB p.29B
[52] PCB p.29B
[53] PCB p.29B
20 Dr David Weissman, psychiatrist, assessed the plaintiff at the request of her solicitors and reported on 2 September 2013[54] receiving a history of no past psychiatric history and a premorbid personality that was “happy, joyful, energetic….everything I’m not now”[55]. She reported that after her brother’s death she found teaching very difficult and could not face it. She told him about her hospital admission earlier in 2013. She told him she was taking Lithium 500 bd but no anti-depressants. She reported that her leisure activities and hobbies were diminished, that she had become socially withdrawn, that she was not doing any domestic chores or gardening but was doing some grocery shopping and walking the dog. She told him she had gained about 15kg in weight and had no energy, confidence or motivation. Her sleep was not good. She felt depressed. She avoided the accident site. He diagnosed “at least a moderate, if not moderately severe group of accident-related psychiatric conditions and mental injuries”[56]: chronic Major Depressive Disorder of moderate intensity or severity with anhedonia, ennui and passive suicidal ideation; prolonged, protracted, unresolved grief reaction and complicated bereavement; and chronic Post-Traumatic Stress Disorder symptoms and traumatisation features. He also noted her personality change and alteration in her occupational capacity.[57]
[54] PCB p.38
[55] PCB p.41
[56] PCB p.51
[57] PCB p.48
21 Dr Weissman concluded that she was most probably totally incapacitated for her pre-injury duties as a primary school teacher; and had only a very small capacity for suitable duties; that she required ongoing psychiatric, psychological and psychotropic treatment and intervention; that she may never completely recover from the death of her brother; and that her psychiatric impairment had not yet stabilised.
22 On 30 October 2014, Dr Weissman reported[58] having reviewed the plaintiff and having received a fuller history of her pre-accident condition. She told him that she had seen Dr McIntosh in early 2012 for workplace stress caused by her throat nodules. She told him that her first hypomanic episode was triggered by her brother’s death, and the second by the sudden death of her grandmother, but that there had been no recurrence of such symptoms after the death of her grandfather in July 2014. She was taking Lithium 250 mane and 500 mg nocte as well as Lexapro 20 mg mane. She told him she was much better than when she had been admitted to hospital in May 2013, but was obsessed with washing her hands and switching off lights. She was not engaging in many leisure activities. She was working but found it exhausting putting on a confident façade whereas she was emotional beneath the surface. She was no longer teaching but when she was she had found it difficult to be around children named Luke.
[58] PCB p.53
23 Dr Weissman read the report of Dr McIntosh dated 28 April 2013 which noted that the plaintiff’s pre-existing symptoms were largely in the stress/depressive realm and that her mental health in the three to six months before her brother died “was really quite good”[59]. He concluded that, pre-morbidly, the plaintiff was mildly obsessional, had some stress and work-stress related depression and anxiety, and had “some sort of biological predisposition/diathesis towards an affective illness/disorder”[60]. However, “her psychiatric prognosis was very good”[61]. He felt that the hypomanic symptoms she experienced after her brother’s death was “triggered, precipitated and ‘unleashed’ by the ‘stress’ of her brother’s death”[62]; and that the manic disorder and need for hospitalisation in May 2013 were significantly contributed to by her brother’s death.
[59] PCB p.21
[60] PCB p.63
[61] PCB p.67
[62] PCB p.63
24 Dr Weissman reaffirmed his previous diagnoses, but stated that all three conditions could be now described as “mild”[63]. In addition, he diagnosed “possible, if not probable, Bipolar Disorder in full remission (with mood-stabiliser medication), which was precipitated or triggered predominantly by the claimed transport accident”[64].
[63] PCB p.64
[64] PCB p.63
25 He concluded that a small part of the plaintiff’s psychiatric impairment was pre-existing and unrelated to her brother’s death. He felt that her psychiatric symptoms, quality of life and level of function had all improved “to a mild, but significant, extent”[65] since he had last seen her, that she was working 25 hours per week and seemed to be performing reasonably well in her job, although she “still has some understandable, psychiatrically based functional, social, leisure and recreational impairment caused by her psychiatric reaction to her brother’s death”[66]. He felt that she had a maximum work capacity of around 30 hours per week, and that there “are aspects of her grief and traumatisation which currently cause an obstacle or impediment” to her returning to work as a teacher.[67] He concluded that the plaintiff “sustained and experienced a very traumatic, if not catastrophic loss, in terms of the death of her older brother and only sibling Luke. She will never completely recover from Luke’s death”[68].
[65] PCB p.63
[66] PCB p.64
[67] PCB p.67
[68] PCB p.67
26 Dr Lester Walton, psychiatrist, assessed the plaintiff at the request of her solicitors and reported on 23 June 2015,[69] a diagnosis in the following terms[70]:
…Ms Stewart’s psychiatric injury is probably best described as a complicated grief reaction in terms of the severity and duration of her reaction to the death of her brother but the psychiatric picture overall is rather more complicated. Although it seems to have largely resolved prior to the transport accident, Ms Stewart did have a prior history of anxiety and depression and, in the aftermath of her brother’s death, and again following her grandmother’s death later, Ms Stewart developed bouts of hypomania, in the second occasion sufficiently severe to cause hospitalisation. Thus she attracted a diagnosis of bipolar disorder which would be considered to be fundamentally biological in nature, although it is well recognised that external stresses can exacerbate the illness. Thus only a component of the bipolar disorder could be properly described as accident- related.
…The death of Ms Stewart’s brother in a transport accident was the fundamental cause of the pathological grief reaction which was later aggravated due to the grandmother’s death. The transport accident also seemed to have triggered the onset of the bipolar disorder but that would not be considered a pure stress-related phenomenon…
…The prognosis is guarded. Overall Ms Steward has enjoyed an improvement in her psychiatric symptoms with appropriate treatment but she will remain prone to further disabling bouts of both hypomania and depression for the foreseeable future, although as time passes and such episodes become increasingly remote from the accident, that particular event will have less relevance.
[69] PCB p.74
[70] PCB p.78
27 Dr Walton noted that the plaintiff had a moderate impairment of thinking, a mild distortion of perception, moderate impairment of mood and moderate behaviour change (avoidance behaviour, social withdrawal, nutrition, sleep disturbance, sexuality). He concluded that half of her continuing psychiatric impairment is attributable to the transport accident.
28 The defendant relied on the medico-legal reports of psychiatrists Patrick Daniels and Associate Professor Peter Doherty. Dr Daniels reported on 7 August 2014 that the plaintiff had a Bipolar Affective Disorder Type 1, with residual mixed mood features. He concluded that her condition “is a pre-existing constitutional condition that has been aggravated by the nervous shock injury 11 June 2012”[71]. I note that his conclusion, that she had a psychiatric impairment of 15%, 5% of which is pre-existing and 10% of which arises as a direct result of the aggravation of her pre-existing emotional condition, is in identical terms to the conclusion of Dr Weissman in his October 2014 report, albeit that Dr Weissman diagnosed a number of other conditions as well. Dr Daniels noted that she would require ongoing mood stabilizing medication and psychological treatment and should improve over the following 12 months.
[71] DCB p.8
29 Assoc. Prof. Doherty saw the plaintiff in January and October 2016. He considered that the plaintiff’s pre-existing depressive disorder was “the first clinical presentation of the bipolar disorder 1 condition”[72] that the plaintiff suffers from, and that the transport accident “was of sufficient psychological weight that there was an aggravation of that pre-existing bipolar condition and the development of a manic upswing”[73]. In his conceptualisation, the manic phases marked by the brother’s death and then the grandmother’s death have been successfully treated. The bipolar 1 disorder continues, but is permanent and stabilised. He considered that there “is no psychiatric impairment that arises directly due to any features of traumatisation or any other psychiatric condition which currently present and is a direct result from the transport accident”[74]. He concluded that the plaintiff has a “0% psychiatric impairment resulting directly from the effects and circumstances of the transport accident”[75].
[72] DCB p.21
[73] DCB p.21
[74] DCB p.23
[75] DCB p.23
30 On 26 October 2016, Assoc. Prof. Doherty reported that the plaintiff was currently depressed, in the context of the cessation of antidepressant medication and legal proceedings, and had been in decline for some months. He felt that “the downturn in her mood is more appropriately considered as part of the pre-existing condition of a bipolar affective disorder”[76]. He reaffirmed his earlier opinion that the psychological problems the plaintiff suffered in 2011 were “the first signs of the developing bipolar affective disorder type 1 condition”[77]. He felt that the hypomanic episode after her brother’s death was the first clearly defined episode of the bipolar disorder[78]. He considered that her “current psychiatric condition interferes significantly with her domestic and leisure activities. She is depressed, and significantly so. Her motivation, interest and participation in social and domestic and leisure pursuits is impaired currently”[79]. He felt that the bipolar condition “does not interfere with her ability to work, though I suspect her performance at work has diminished because of the current presence of a depressive disorder“[80].
[76] DCB p.32
[77] DCB p.34
[78] DCB p.35
[79] PCB p.35
[80] PCB p.35
31 He concluded that there was no diagnosable PTSD condition, or a diagnosable complicated grief reaction. Her obsessive compulsive disorder behaviours occurred before the transport accident and have not been exacerbated by it. There was no chronic depressive condition present.[81]
[81] DCB p.36
32 In his supplementary report dated 3 November 2016, Assoc Prof Doherty reviewed a number of reports by other psychiatrists, and repeated his previous conclusion that prior to the transport accident the plaintiff had the first depressive phase of the bipolar disorder and the transport accident precipitated the hypomanic phase the plaintiff experienced. The next manic phase occurred after the grandmother died. The plaintiff was in a depressive phase “that has been precipitated by the cessation of antidepressant medication”[82] and that this would colour her views about the loss of her brother, the intensity of longing, and the significance of it for her future happiness. He considered that there was no diagnosis of OCD.
Findings and Reasons
[82] DCB p.42
33 I have considered all of the evidence and the submissions of the parties. It appears to be common ground among medical experts that the transport accident triggered the first frank episode of hypomania requiring specific medication. It is not necessary for me to decide whether her pre-existing anxiety and depressive symptoms, which were being treated by her doctor and had occasioned one consultation with her ultimate treating psychiatrist, Dr McIntosh, represented the depressive phase of the subsequently diagnosed bipolar disorder type 1.
34 I am satisfied on the evidence that the plaintiff suffered a psychiatric injury as a direct result of the transport accident. Dr McIntosh described it in terms of the development of symptoms consistent with bipolar disorder. He felt that her situation was “somewhat unusual as the bipolar aspect of her presentation clearly started as a more unusual pathological ‘grief’ type response”[83]. He felt that, without the transport accident, she may never have developed the disorder. He noted that he had prescribed Lexapro to manage her mood and her OCD symptoms but her OCD symptoms were currently fairly mild. Dr Walton felt that the plaintiff’s psychiatric injury was best described as a complicated grief reaction. He noted the diagnosis of bipolar disorder, which, although fundamentally biological, could be exacerbated by external stresses. He felt that half of her continuing collective psychiatric impairment was attributable to the transport accident. Dr Daniels diagnosed pre-existing Bipolar Disorder Type 1 which was aggravated by the transport accident. He felt that two thirds of the plaintiff’s psychiatric impairment arose as a direct result of the aggravation caused by the transport accident. Dr Weissman diagnosed a number of conditions: mild chronic Major Depressive Disorder; mild prolonged grief reaction; mild, chronic Post-Traumatic Stress Disorder Symptoms and traumatisation features; and Bipolar Disorder in full remission with medication. He felt that two-thirds of the plaintiff’s current collective psychiatric impairment was related to the transport accident.
[83] PCB p.29A
35 Only Assoc Prof Doherty, who diagnosed a Bipolar Disorder Type 1, accepted that the plaintiff was depressed but insisted that this was appropriately viewed as a depressive phase of her Bipolar Disorder, which is biological, and which, viewed retrospectively, pre-dated the transport accident. In addition, he denied that there was a complicated grief reaction or that there was a PTSD. In spite of providing considerable detail in his reports concerning the limitations the plaintiff is experiencing in her mood, motivation, social and leisure pursuits, and noting the desirability that she not put herself in a situation of undue stress at work, he concluded that none of her current psychiatric impairment results from the transport accident. His conclusion in this regard is out of step with all the other reporting psychiatrists (Dr McIntosh, Dr Walton, Dr Daniels and Dr Weissman) and I found his reports of limited assistance in this regard.
36 I am satisfied on the material before me that, as a result of the transport accident, the plaintiff suffered psychiatric injury, whether by exacerbation of a pre-existing depressive condition and its crystallization into Bipolar Disorder, or, by triggering the onset of Bipolar Disorder, along with a complicated grief reaction. The depressive symptoms she currently suffers sit with any or all of these diagnoses. The psychiatric injury has produced a long-term mental disorder in similar terms.
37 In order to determine whether the sequelae of the plaintiff’s transport accident-related psychiatric impairment meet the narrative test, it is necessary to compare the plaintiff’s condition and overall circumstances before the transport accident with her condition and circumstances as at the date of the hearing.[84]
[84]Barwon Spinners v Podolak (2005) 14 VR 622, [33]
38 Prior to the transport accident, in spite of some depressive and anxiety and OCD symptoms related to health issues (her throat nodules), and workplace issues, for which she was taking some medication, she was working full time as a primary school relief teacher, which was her vocation. She was also working as a barista on Saturdays. She was very sociable, organising many events for her group of friends. She socialised with her brother and went to the football with him. She travelled frequently with her friends and brother. She was not in a relationship. She was paying off an investment property. She was diligent and conscientious in her work and was working hard, sometimes to excess. Dr McIntosh felt that if she was to succeed in her profession she would need to modify her perfectionist standards.
39 After the transport accident, and in the wake of the successful treatment of two severe hypomanic and manic episodes, the plaintiff’s circumstances are vastly different. She takes daily medication for her Bipolar Disorder. She continues to suffer from depressive symptoms requiring anti-depressant medication. She suffers the ongoing effects of a complicated grief reaction. She is unable due to these conditions to return to work in her chosen profession as a teacher, to work full time, nor is she able to work on weekends as a barista. She works 25 hours per week in a boring, unchallenging administrative role which minimises her contact with people and which she does not enjoy. She puts on a brave face at work but finds it exhausting. There is consensus among psychiatrists that she should not put herself under more pressure, and none of them suggested that she will be able to work more than 30 hours. She earns more than a third less than she would have earned had she continued to work full-time as a teacher. She has been unable to move out of home, even though she has bought two properties. She lives day by day and stays close to her family. She socialises little, now going out about once a month. She no longer exercises apart from walking the family dog. She attends the football with her mother. She is a young woman whose life has been completely changed.
40 In all the circumstances, I consider that in terms of pain and suffering and pecuniary disadvantage, compared with other cases in the range of long-term mental or behavioural disturbances or disorders, the consequences of the plaintiff’s long-term mental disorder are “severe” and therefore meet the definition of “serious” in the definition of “serious injury” in sub-paragraph (c) of s. 93(17) of the Act.
Conclusion
41 Leave is granted to the plaintiff to issue common law proceedings in respect of the psychological injury suffered as a result of the transport accident on 11 June 2012. I reserve the question of costs.
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