Stubbs v Transport Accident Commission
[2018] VCC 221
•9 March 2018 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04182
| GWENNETH JOY STUBBS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 23 and 31 August 2017 (in Ballarat) | |
DATE OF JUDGMENT: | 9 March 2018 (in Melbourne) | |
CASE MAY BE CITED AS: | Stubbs v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 221 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – two transport accidents – paragraphs (a) and (c) of the definition of “serious injury” – issues of aggravation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Transport Accident Commission v Zepic [2013] VSCA 232; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson Pty Ltd v Skorsis (2000) 12 VR 386; A G Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Katanas v Transport Accident Commission [2016] VSCA 140; Transport Accident Commission v Katanas [2017] HCA 32; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment:Pursuant to s93(17) Transport Accident Act leave is granted to the plaintiff to bring common law proceedings in relation to injury suffered by her in the first transport accident on 1 September 2013.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC with Mr K Mueller | Saines Lucas |
| For the Defendant | Mr P Scanlon QC with Ms F Ryan | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 12 September 2016, Gwenneth Joy Stubbs (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common law proceedings to recover damages for injuries (“the injuries”) suffered by her arising out of:
(a)a transport accident occurring on 1 September 2013 (“the first transport accident”); and/or
(b)a transport accident on 15 February 2014 (“the second transport accident”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that any injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“ ‘serious injury’ means–
(a) serious long-term impairment or loss of a body function; or
(b) ...
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) ... .”
5 The parts of the body said to be impaired by the first transport accident for the purposes of paragraph (a) are the left shoulder and the cervical spine. Furthermore, it is also alleged that the first transport accident caused severe long-term mental or severe long-term behavioural disturbance within the meaning of s93(17)(c) of the Act. That condition has been described variously, but includes Post-Traumatic Stress Disorder together with Anxiety and Depression.
6 In relation to the second transport accident, the plaintiff seeks to rely on paragraph (c) of the definition of serious injury contained in s93(17) of the Act, in that that transport accident aggravated the pre-existing mental or behavioural disturbance, and that such aggravation satisfies the requirement that it give rise to severe consequences. In particular, in a document headed “Particulars of Injury” dated 23 March 2017, those acting for the plaintiff alleged that the second transport accident aggravated and exacerbated the pre-existing mental conditions of Post-Traumatic Stress Disorder and Anxiety and Depression.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a)that the injuries suffered by her were a result of the transport accidents
(b)that the requirements of the test set out in the seminal decision of Humphries v Poljak[3] are met, wherein a majority of the then Full Court of the Supreme Court of Victoria stated:
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[4]
[3][1992] 2 VR 129
[4]Humphries & Anor v Poljak [1992] 2 VR 129 at paragraph 140; see also Mobilio v Balliotis [1998] 3 VR 833
8 “Serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment; however, the mental disorder cannot itself constitute or be the producer of the impairment of a body function.[5]
[5]See Richards v Wylie (2000) 1 VR 79
9 “Serious injury” as defined in sub-paragraph (c) requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious”. In Mobilio v Balliotis,[6] the Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking JA stated:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[7]
[6]Op cit
[7]See Mobilio v Balliotis (op cit) at 846
The issues
10 When queried by the Court as to what were the issues, Senior Counsel for the Transport Accident Commission stated:
MR SCANLON:
“… We say, and it will be our submission, and the position for which we contend, is that this application, on the material that Your Honour has, can’t succeed, and we say that for a number of reasons. There’s a neck injury alleged, but it’s essentially the left shoulder injury and the psychiatric impairment from the second. Mr O’Brien forms a view that, based upon the history he obtained, there’s a left shoulder rotator cuff pathology, and the history he gets is that the plaintiff had had no prior left shoulder pain at all.
Three months before this accident, Your Honour, on 11 June 2013, the plaintiff is with her physiotherapist, Abbey Frazer (sic), and presents with chronic bilateral shoulder pain three months pre-accident, and back in early August 2000, John Bourke, the orthopaedic surgeon, was reporting to the extent that she continues to have pain in both shoulders, more particularly the right. There’s pain in the neck, and notes, in August 2000, that he has injected the right shoulder, and that he will inject the left shoulder next week, that he’s injected the left subacromial bursa.
In May 2009 through to December 2012 and beyond, the plaintiff is ingesting Panamax and Tramol for her osteoarthritis, and then progresses to Lyrica and Norspan patches, … .”
HIS HONOUR:
Q:“So just so I understand it, in essence what you’re saying, once all the evidence is looked at there’s a substantial pre-existing shoulder – left shoulder component. Is there any issue there was a – I take it there’s no issue there’s a transport accident on that first one, or both of them. Is that correct?---”
MR SCANLON:
A:“No issue at all about those, Your Honour, yes.”
HIS HONOUR:
Q:“But you say the aggravation, to the extent that there is aggravation, just falls short of establishing a serious injury in relation to the shoulder or the neck, given the pre-existing problem?---”
MR SCANLON:
A:“We do. We go back even one further step, Your Honour, and say, in terms of Petkovski v Galletti, there’s no one assessing the aggravation, because people like Mr O’Brien are assessing on the basis that there was no prior injury. Then you go to the general practitioner, today, who doesn’t make an assessment in relation of the relationship, and you have the report from Mr Plank as recently as this week, or whenever it was, sorry, 13 July, it was.
I thought it was at the start of this circuit when she was going to see him, but in any event, he simply says he cannot know whether, in this car accident, ‘Has injured both shoulders, or whether these tears are simply degenerative in nature, considering her age’. So there’s the causation point, then the Petkovski v Galletti point, and which we say – he hasn’t been addressed and can’t be here. Then, Your Honour, we say further, that if there is – if those hurdles are overcome, then it’s an aggravation of a pre-existing degenerative condition, that, sadly, having regard to her age, her degenerative change was there, and as I said, Your Honour, John O’Brien, in any event, says that she can persist with her activities of daily living, in any event.
Just on the psychiatric point, Your Honour, in terms of being severe, Lester Walton says it’s reasonably – of reasonable mild severity, but he never apportions them, that is the condition, whatever if it, equally between the two car accidents.”[8]
[8]See Transcript (“T”) 13, Line (“L”) 24 – T15, L25
The evidence of the Plaintiff
11 The plaintiff gave evidence that the contents of her affidavits sworn on 3 February 2016 (“the first affidavit”) and on 13 April 2017 (“the second affidavit”)[9] were “true and correct”.[10]
[9]See exhibit 1 at pages 8-25, Plaintiff’s Court Book (“PCB”)
[10]T22, L13-23
12 By way of her first affidavit, the plaintiff gave evidence that she is seventy-four years of age, having been born in Australia in September 1943. She lives on her own. She retired from work in about 1999, save for later undertaking part-time cleaning work.
13 The plaintiff is right handed.
14 On 1 September 2013, the plaintiff was driving along a street in Ballarat when a car reversed from a private driveway and crashed into her car (“the first transport accident”). As a result of the first transport accident, she believes she has suffered serious long-term impairment or loss of function of her left shoulder and arm, and also of her neck.
15 On 15 February 2014, she was driving along a street in Sebastopol, and as she travelled through an intersection with Kent Street, another car failed to give way and collided with her car, causing her injury (“the second transport accident”). She recalls that she was in deep shock after this accident and believes she has suffered a severe long-term mental and severe long-term behavioural disturbance or disorder as a result of the second transport accident.
16 At the time of her first affidavit, the plaintiff describes how she was continuing to experience pain in the left shoulder, which is constant but fluctuates in intensity. Activities and conditions that affect the level of shoulder pain include forceful or repeated use of the left arm such as pulling, pushing and repeated or heavy lifting, overhead use of the left arm, and exposure to the cold.
17 Furthermore, the plaintiff also suffers neck pain most of the time, and such pain is affected by activities such as prolonged standing or walking (especially walking over rough or uneven surfaces), and looking upwards and downwards for a long time, together with cold weather.
18 Since the second transport accident, the plaintiff has received a lot of treatment for her mental state, and as a result of discussions with her treating doctors, she believes there is nothing more that can be done to improve her mental state. In particular, she states, at paragraph 11 of the first affidavit, how her mental state has changed dramatically since the second transport accident. She deposes, in part:
“… My changed mental state continues to cause me a lot of distress, and significantly affects my relationships and social functioning. I continue to experience flashbacks of both accidents. I get distressed when I see or hear things that remind me of either accident, for example hearing loud sounds. My social life has collapsed since the second accident. I now generally avoid social contact and have lost contact with friends. For example, I used to be an active member of Probus. I have resigned from this organisation since the second accident. I no longer feel confident with people as I was before the second accident. Since the second accident, I have lost a lot of interest and motivation in my usual interests and activities. I have lost confidence and self-esteem since the second accident. My memory is shocking since the second accident. I used to have a reasonable memory before that time.”[11]
[11]See paragraph [11] of the plaintiff’s first affidavit at pages 10-11 PCB
19 The plaintiff led an “active and satisfying lifestyle”[12] at the time of the first transport accident. Her usual daily routine involved getting everything done in her home by about 8.30am, before spending the rest of the day as she liked. She lived on her own and was proud of her independence and ability to lead such an active life at her age. She was energetic and enthusiastic about activities and had a positive and confident attitude.
[12]See paragraph [12] of the plaintiff’s first affidavit at page 10 PCB
20 The plaintiff worked in a number of part-time paid cleaning jobs and frequently spent time at the home of one of her children, helping with chores, driving grandchildren to and from school, and looking after and playing with her grandchildren. She cooked, cleaned and gardened at the homes of her grandchildren, and also loved working in her own garden. She had a lot of friends at Probus, and enjoyed going on train or driving trips to Melbourne or Geelong on her own or with friends.
21 She describes that her lifestyle did not change much following the first transport accident and she battled on with her usual activities, despite ongoing left shoulder pain suffered as a result of the first transport accident. She deposes that she hated the idea of losing the ability to continue the active, enjoyable life that she led before the first transport accident, and often made excuses to avoid activities if her shoulder was too painful.
22 The plaintiff deposes that the left shoulder has not improved since that time and she now finds that the shoulder injury limits most of her former activities, such as undertaking cleaning jobs – she has not performed paid cleaning work since the first accident, performing chores at her own home and the homes of family members, gardening, and playing with her grandchildren. In particular, the plaintiff describes her life since the second transport accident in paragraph 14 of the first affidavit, wherein she deposes:
“My life has fallen into a ‘hole’ since the second accident. I have lost my positive enthusiastic attitude, as well as motivation. I spend a lot less time with family (including my grandchildren) because of my changed mental state since the second accident (and also because of my left shoulder condition). I do a lot less work at the homes of my family. It now takes all day to complete my own home chores. They never seem finished and my home is not tidy as it always was before the accidents. I had always prided myself on the tidiness of my home. My temperament has changed since the second accident. I am now happy to be on my own, am generally not interested in going out, and only drive when I have to. I have become a bit of (sic) recluse. I was not like this before the second accident. I have lost confidence in driving since the second accident, and now feel anxious when travelling in a car, especially if a car or truck gets close to my car.”[13]
[13]See exhibit 1 – paragraph [14] of plaintiff’s first affidavit at page 11 PCB
23 The plaintiff describes her treatment to include physiotherapy, chiropractic treatment, injections into the left shoulder and painkillers. Furthermore, she took antidepressants for a while, saw a psychiatrist, Dr Thottapilil and psychologist Ms Sandra Lorensini. At the time of her first affidavit, her treatment comprised regular visits to her general practitioner, Dr Mitric-Andjic at The Ballarat Group and painkillers, including Tramal.
24 The plaintiff described that she has had little rest or sleep since the second transport accident, and often sleeps or sits in a chair during the night as her mental state and/or her left shoulder pain disrupts sleep. She describes, as an example, that lying on her left side increases left shoulder and sometimes neck pain, and wakes her up. She rarely gets into a deep sleep. She notes that she had had sleep issues before the transport accident but used to be able to get some sleep, and generally felt rested in the mornings. However, since the second transport accident she rarely feels rested and generally feels tired and lacking in energy.
25 Over the years, the plaintiff has suffered a range of health problems, including colitis, coeliac disease, asthma and reflux. Over the years she has experienced pains “on and off”[14] in all her joints (including the left shoulder) and has been diagnosed with polymyalgia and fibromyalgia, Chronic Fatigue Syndrome and Meniere’s disease. Furthermore, she had previously suffered right shoulder “issues” and underwent treatment, including a number of injections, leading up to the first accident. She had been favouring the right shoulder by using the left shoulder more.
[14]See exhibit 1 – paragraph [17] of the plaintiff’s first affidavit at page 11 PCB
26 By way of her second affidavit, the plaintiff gave evidence that she continues to suffer from the consequences deposed to in her first affidavit. In particular, she expands on the various medical conditions that she has suffered:
(a) She refers to paragraph 17 of her first affidavit, and noting that while there may be mention in the medical records of “polymyalgia and a Chronic Pain Syndrome”, she had no personal knowledge of ever being diagnosed with either of those conditions;
(b) She again refers to paragraph 17 of her first affidavit and deposed that over the years, she has suffered from a range of health problems – for the last seventeen years or so she has had colitis, resulting in often quite severe bowel and intestinal pain for which she has received extensive treatment over the years including hospitalisation for about twenty days in May 2016. She also intermittently takes strong painkillers for the pain;
(c) She has suffered from a protracted chest infection and was prescribed antibiotics and antifungal medication;
(d) She underwent brain scans in 2016 with a suspected but undiagnosed brain abscess;
(e) In about 2004, she had generalised joint pain which her then general practitioner thought may be osteoarthritis. She believes she attended a Tai Chi arthritis program in or about 2005 and had some physiotherapy in about April 2013. She believes that the cause of the generalised pain which was diagnosed in about August 2012 was due to fibromyalgia;
(f) She had suffered asthma for many years;
(g) She had some lower back and neck pain from time to time prior to the transport accident.
27 In particular, the plaintiff deposed:
“I have had extensive treatment and investigation of my right shoulder since about October 2012. I was referred to Mr English, orthopaedic surgeon, and subsequently to the orthopaedic outpatient clinic for injections to the right shoulder. In October 2014 I had further injections and physiotherapy to the right shoulder. The right shoulder pain has continued and progressed since that time. As a result of the pain and restriction of movement in the right shoulder I became increasingly more dependent on the use of my left arm. Apart from the generalised pain I had in most joints I cannot recall having any specific problems or treatment for my left shoulder prior to the first accident in September 2013.”[15]
[15]See exhibit 1 – paragraph [7] of the plaintiff’s second affidavit at page 14 PCB
28 The plaintiff notes that there is a reference in the clinical notes of her general practitioner that in December 2003, she was prescribed Valium. She asserts that she had no recollection of that or why she was prescribed Valium but notes in or about 2010, her general practitioner commenced her on Endep which she believed was to help her sleep and because her doctor thought it might help with the abdominal pain.
29 The plaintiff also refers to paragraph 3 of her first affidavit and gives further detail as to her work history:
(a) On leaving school, she worked as a shop assistant for about ten years or so before commencing to have her four children, causing her to be home, performing home duties for about twelve years;
(b) She returned to work in or about 1971 with the Ballarat Council where she worked for about twenty-eight years as mainly a home, special and personal care assistant including looking after the intellectually disabled;
(c) She stopped working in about 1999 when her husband became very ill and she cared for him until his death in 2002. Her husband had been on dialysis for about eight years and for the last eight months of his life, was transferred to Melbourne and she accompanied him, living in hospital accommodation. In particular, she notes:
“… [I] … had to cope with watching him slowly dying. Despite the grief I felt I coped well.”[16]
[16]See exhibit 1 – paragraph [10] of plaintiff’s second affidavit at page 15 PCB
30 After the death of her husband she did not return to full-time employment but did some housekeeping work, mainly for friends and family, for which sometimes, she was paid but not enough that it was required to be declared. She confirmed that she loved her cleaning and was happy to do it even if not paid.
31 Prior to the two transport accidents she had not suffered from any injury at work or in a car accident and mentally had always thought of herself as being “quite resilient” and was “happy and outgoing”.[17] The plaintiff notes that after the first transport accident she did not want to show any sign of emotional weakness to her friends and family and even though she had suffered badly, she kept it from her family and did not tell them that she was attending any counselling. In particular, she deposes:
“While outwardly my lifestyle did not change much after the first accident, in addition to the severe and disabling pain in the left shoulder, I was very anxious, had frequent nightmares, was crying a lot and was generally feeling down and awful. The clinical notes reveal I attended my GP, Dr Mitric-Andjic, with those complaints on 30 October 2013. On 1 November I undertook at DASS test which showed that I was suffering from severe depression, extremely severe anxiety and moderate stress. My GP placed me on a mental health plan and referred me to psychologist, Sandra Lorensini.”[18]
[17]See exhibit 1 – paragraph [12] of the plaintiff’s second affidavit at page 15 PCB
[18]See exhibit 1 – paragraph [14] of the plaintiff’s second affidavit at page 16 PCB
32 The plaintiff attended Ms Lorensini on 14 November 2013 and thereafter, on 21 November 2013, 29 November 2013, 6 December 2013, 8 December 2013, 20 January 2014 and on 14 March 2014. The last consultation being the only consultation after the second transport accident. The plaintiff deposes:
“… Only the last attendance was after the second accident. I was still suffering from severe anxiety and from depression and stress when I had the second accident. I feel that the main consequence of the second accident was that it made me realise that I had to be open with my family and to seek their support. I could no longer play the role of the tough and resilient family elder.”[19]
[19]See exhibit 1 – paragraph [15] of the plaintiff’s second affidavit at page 16 PCB
33 The plaintiff deposes that the first transport accident “really shook me”, because she was driving a small car and had with her, as passengers, her son, Robert, then aged forty-six, and her granddaughter, Codi, who was then aged seventeen. She described how, when her car was struck on the passenger side causing her car to be pushed into the path of oncoming vehicles, that she was in fear for her life or serious injury and that of her son and granddaughter.
34 The plaintiff also comments that the second transport accident, although stirring up her left shoulder for a short while, did not cause her to seek any additional treatment following the accident and believes that the left shoulder returned to the pre second accident condition after a week or two.
35 The plaintiff also confirmed that she continues to suffer constant pain in the left shoulder which varies in intensity. She describes how the pain is often so severe that it caused her to spill coffee when carrying it, drop things and generally have trouble with carrying things. She notes that because of her pre-existing right shoulder injury she previously did most things with the left arm and that now she is very restricted in all activities which place strain on either shoulder and consequently this impacts on most of her day-to-day activities and the things that she enjoyed.
36 Although noting that it sounds “odd”, she loved to perform housework before the first transport accident – particularly vacuuming. She described how she kept her house “spotless” and loved cleaning, which also involved cleaning the windows and also her car. She happily volunteered to perform cleaning for her children and friends. Now she finds although she can clean her home, she asks her daughter to vacuum for her and she takes much longer to clean her house and she only does a little bit at a time.
37 Although she always had been a light sleeper and on occasion took sleeping tablets before the first transport accident, she has found that since the first transport accident, she has had considerably more trouble sleeping, mainly due to the pain but also because of anxiety. In particular, she states:
“… I have trouble getting to sleep and seldom sleep for more than an hour and a half without waking and I then have trouble getting comfortable and back to sleep. I am no longer able to sleep on my left shoulder as I did prior to the first accident, because of the problems I then had with the right shoulder. I wake up early and I am glad to get out of bed because it is so uncomfortable. However as a result of not sleeping well I usually feel unrested and fatigued during the day.”[20]
[20]See exhibit 1 – paragraph [24] of the second affidavit at page 18 PCB
38 The plaintiff is now looking to buy a motorised recliner chair in the hope that she gets a better night’s sleep.
39 Whereas she used to enjoy visiting friends and family and would often drive to Geelong, she now dislikes driving because of the pain and anxiety. She believes she has lost her self-confidence and as a result, only drives short distances – in particular, she no longer picks up her grandchildren from school as she did prior to the first transport accident.
40 Whereas she used to spend a lot of time with her two youngest grandchildren aged eight and thirteen as their parents both worked. In addition to picking them up from school she made them food and used to do most of the housework while they were at school. She now seldom drives to their home as they live nine kilometres across town.
41 Prior to the first transport accident she was a passionate gardener and was able to take care of her suburban house block on her own. She describes how she mowed the lawn, re-potted plants, trimmed the box hedges and did all the heavy and light tasks. She describes how she would be out in the garden from “7.00am to 7.00pm”. Now, she only does the lighter tasks and gets others to do the rest, such as the mowing.
42 She continues to suffer from neck pain which she experienced prior to the first transport accident but it is “substantially worse now”. Such pain is present most of the time whereas prior to the first transport accident she would be pain free for quite a while. Such neck pain gives her trouble doing tasks “such as ironing”.
43 Furthermore, since the transport accidents, both the neck and shoulder pain has bothered her a lot when attempting to pursue her hobbies of overlocking and scrapbooking. She gave up these hobbies a year or two ago.
44 She continues to attend regularly on her general practitioner, Dr Mitric-Andjic, but no longer attends her psychiatrist, Dr Thottappilil, because she felt that he was not of any assistance. In particular, she states that he “repeatedly urged me to overcome my anxiety by going for a long drive”. She did not find this advice helpful.
45 The plaintiff describes that she now takes “for her injuries” Panadol Osteo, two tablets three times a day, and Tramal, three times per day. She was taking Zoloft for Anxiety and Depression until about early 2016 and previously had tried Cymbalta but did not feel that either helped. She also wore Norspan patches for pain for a short while but they made her nauseas and caused her to vomit.
The evidence of Leanne Marie Biggin (the daughter of the Plaintiff)
46 I also refer to the affidavit of Leanne Marie Biggin sworn on 13 April 2017.[21] Ms Biggin describes herself as the eldest daughter of the plaintiff and is a hairdresser by occupation. Her brother, David, lives in Ballarat, as did another brother until about two years ago. She has a son aged twenty-seven years old and a daughter aged twenty-two years old – and the daughter lives at home.
[21]See exhibit 1 at page 21 PCB
47 Ms Biggin describes that she is very close to her mother and sees her virtually every day, as they live less than five minutes apart.
48 In particular, she describes that prior to the first transport accident, the plaintiff would come to her house at least twice a week and on the days that she did not visit, Ms Biggin would visit her.
49 Ms Biggin described that prior to the first transport accident, her mother would clean her house when she attended and in particular, while Ms Biggin was working in her hairdressing salon. She notes that her mother always seemed to be active, and loved cleaning and tidying.
50 Although she had had problems with her right shoulder a year or two before the first transport accident, such did not stop her from performing the housework and sometimes work in their garden which was quite extensive. Ms Biggin notes that her mother kept her own home spick and span, both inside and out, as she did for her brothers, Mark and David.
51 Ms Biggin notes that after the first transport accident, her mother “tried to hide the impact of the injuries from us for a while”, in that they were not told she was seeing a psychologist, and she continued to help out with the cleaning. Ms Biggin noted that her mother started to do less work and by mid 2014, she just about stopped completely.
52 Furthermore, after the first transport accident, her mother became increasingly reluctant to drive herself and this got “worse” after the second transport accident. Ms Biggin deposes that her mother seldom visits, complaining about not wishing to drive the short distance to her house and now her daughter often drives her places if she wants to go out or she takes a taxi instead.
53 Ms Biggin describes her mother as loving to attend Probus meetings where she was actively involved, attending weekly meetings and outings. She notes that her mother gradually stopped going to the outings and then, about eight months ago, resigned because she was no longer interested in going to the meetings.
54 Ms Biggin describes her mother as having lost contact with many of her friends with whom she used to be outgoing and the one who initiated getting together but that stopped after her injuries. She notes that her mother’s main activities now concern the family although she sees a lot of her three sisters but whereas she used to visit them and enjoy getting out and about, they now visit her. Ms Biggin describes her mother as now “emotional and teary” and if not actually teary, appears often to be on the verge of tears. She compares this to prior to the transport accidents, when she was cheery and full of life. Furthermore, she describes her as emotionally “flat” whereas prior to the transport accidents, she was “energetic and animated”.
55 Ms Biggin also notes that her mother seems to be often in pain and also has recently started to drop things from her left arm. Her mother complains that she has more trouble sleeping since the transport accidents and consequently is tired and fatigued during the day. She also confirms that her mother stopped her sewing and scrapbooking which she used to enjoy.
56 Finally, Ms Biggin deposes:
“While she tried to hide her problems for a while after the first accident by early 2014 I noticed big changes in my mother and the second accident seem (sic) to compound her problems further even though at the time she did not want to make a big issue about the consequences of either accident. She was very independent and it was obvious to me that she did not want to admit to the problems she was having.”[22]
The medical treatment undertaken by the Plaintiff prior to her transport accidents, during her transport accidents and over the years since her transport accidents
[22]See exhibit 1 – paragraph [17] at page 24 PCB
57 Before turning to the cross-examination of the plaintiff, I consider it beneficial to have some understanding of the complex and sometimes confusing treatment that the plaintiff has had over the years leading up to her transport accidents – particularly in relation to any pre-existing problems with her left shoulder, neck and/or psychological/psychiatric issues.
58 Both sides have tendered various medical reports and the like from treating doctors who treated the plaintiff leading up to the transport accidents. No doubt such material relied on by the defendant has been brought into existence by the subpoenaed medical records from various sources.
59 I intend to refer to the earlier medical material, then the medical material surrounding the occurrence of the transport accidents and, finally, the treatment that the plaintiff has experienced over the years since the transport accidents. I refer to the following evidence which is before the Court in relation to treatment leading up to the transport accidents:
(a)The plaintiff was referred by her then general practitioner, Dr Catherine Dennis (the predecessor of Dr Andja Mitric-Andjic) for a bilateral shoulder ultrasound on 3 September 1999. The report of the radiologist, Dr G Buirski, states:
“LEFT SIDE: There is mild thickening and enlargement of both the infraspinatus and supraspinatus tendons in keeping with tendonitis. The subdeltoid bursa is also slightly thickened. No discrete tear can be identified. Dynamic abduction studies fail to show any evidence of impingement.
CONCLUSION:Mild infraspinatus and supraspinatus tendonitis with mild associated subdeltoid bursitis.
RIGHT SIDE: There is a full thickness tear in the anterior supraspinatus measuring 19mm in breadth and 10mm in length. The tendon itself is enlarged and hypoechoic as is the infraspinatus consistent with tendonitis. The subdeltoid bursa is significantly thickened and a small amount of fluid is demonstrated in the bursal cavity.
The remainder of the rotator cuff mechanism is normal. Dynamic abduction studies demonstrate both supraspinatus and bursal impingement.
CONCLUSION: Full thickness tear of supraspinatus associated with tendonitis. Infraspinatus tendonitis. Subdeltoid bursitis. Supraspinatus and bursal impingement”[23] (Emphasis added.)
[23]See exhibit “A” at pages 16 – 17 Defendant’s Court Book (“DCB”)
(b)Dr Dennis completed a Centrelink report dated 2 May 2000.[24] In that document, Dr Dennis lists diagnoses of ulcerative colitis, asthma, osteoarthritis, fibromyalgia. In relation to the osteoarthritis and fibromyalgia, she lists the clinical features as being pain in “neck, back, hands and shoulder”;
[24]See exhibit “B” at pages 18-21 DCB
(c)On 18 August 2000, the orthopaedic surgeon, Mr John Bourke (situated in Ballarat), reported by letter to Dr Dennis in the following terms:
“This lady continues to have pain in both shoulders, more especially the right. There is also pain in the neck and pain in both elbows.
I have injected the right subacromial bursa with Celestone Chronodose and local anaesthetic. She has been advised and will be reviewed in a week. At that time I will inject the left subacromial bursa.”[25]
[25]See exhibit “B” at page 22 DCB
(d)Dr Dennis arranged for the plaintiff to undergo an ultrasound of the right shoulder on 11 November 2003. The radiologist, Dr G Gill, reported:
“There is a slight loss of bulk of the supraspinatus tendon in its anterior 3rd just posterior to the bicipital groove. The appearance is consistent with a full thickness tear measuring 1.5cm in widest diameter. There is mild thickening of the supraspinatus tendon slightly more posteriorly consistent with tendonosis. The other rotator cuff tendons appear normal.
There is mild thickening of the subdeltoid bursa consistent with mild bursitis and on dynamic scanning corresponding with the onset of pain on abduction there is some bunching of the bursa supporting bursal impingement.
The tendon of the long head of the right biceps muscle appears normal and there is no increased fluid in the tendon sheath.”[26]
[26]See exhibit “B” at page 23 DCB
(e)Dr Dennis again reported to Centrelink on 10 December 2003.[27] In that document, Dr Dennis recorded that the plaintiff had been her patient since 24 August 1992 and a patient of the practice, generally, since 21 March 1965. In that document, Dr Dennis again set out her diagnoses: Ulcerative colitis, (which required, amongst other things, prescription of Panadeine Forte to ease pain), fibromyalgia, with the date of onset being 1992, causing “all joints ache” and also noting that the plaintiff also responded “poorly” to medication and asthma;
[27]See exhibit “B” at pages 24-29 DCB
(f)Dr Andja Mitric-Andjic, the current treating practitioner (who took over from Dr Dennis in June 2012 on her retirement) reviewed a Chronic Disease Management Plan on 18 April 2013.[28] In that report, Dr Andja Mitric-Andjic recorded that the plaintiff had suffered osteoarthritis since 2004, atrophic vaginitis since 2006, colitis since 2006, asthma since 2007, GORD (Gastric-Oesophageal Reflux Disease) since 2007, Coeliac Disease since 2007, gastritis since 2008 and Meniere’s disease.
[28]See exhibit “B” at pages 30 – 34 DCB
In that document, under the heading “Pain/Mobility/Safety”, Dr Andja Mitric-Andjic states:
“Has alot of joint pain due to osteoarthritis. Takes panadol osteo and tramal but has little relief with it.
Referral: Hydrotherapy QE, Luke Evans. Physiotherapist – Philip Mclennan.”[29]
[29]See exhibit “B” at page 33 DCB
(sic)
Also, under the heading “PSYCHOSOCIAL”, the doctor has noted that she has no concerns about depression and that the plaintiff, at that time, had the following social supports:
“… Probus club. Has a lot (sic) of family support and out and about with friends.”[30]
[30]See exhibit “B” at page 33 DCB
(Emphasis added.)
The doctor also notes that the plaintiff was enjoying getting out and is “doing a horticultural course with grand daughter”.[31]
[31]See exhibit “B” at page 33 DCB
(Emphasis added.)
(g)The treating general practitioner of the plaintiff, Dr Andja Mitric-Andjic, made the following referrals in 2012:
(i)on 29 October 2012, Dr Mitric-Andjic referred the plaintiff to Mr Shaun English, requesting that the plaintiff be assessed in relation to her complaints of right shoulder pain;
(ii)on 2 November 2012, Dr Mitric-Andjic referred the plaintiff to the Orthopaedic Outpatient Clinic at Ballarat Health Services, again requesting assessment of complaints of pain in the right shoulder;
(iii)on 14 December 2012, Dr Mitric-Andjic referred the plaintiff to the orthopaedic surgeon, Mr Milos Kolarik, again, in relation to complaints of right shoulder pain;
In each of the referrals, Dr Mitric-Andjic listed the current problems of the plaintiff to be gastritis (2008); coeliac disease (2007); GORD (gastroesophageal reflux disease); colitis (2006), atrophic vaginitis (2006) and osteoarthritis (2004).
Furthermore, regular medication included asthma medication, Endep tablets, Famvir tablets, Panadeine Forte tablets, Panadol Osteo modified release tablets, Somac tablets, Stemetil tablets, Temaze tablets, Tramadol and Tramal capsules.
Furthermore, Dr Mitric-Andjic set out the findings of a right shoulder ultrasound undertaken on 23 October 2012, which concluded: “Bursitis, calcific tendonosis and tears of the subscapularis and supraspinatus tendons”.[32]
[32]See exhibit “B” at pages 36-37 DCB
Furthermore, Dr Mitric-Andjic set out findings of cervical and thoracic x-rays undertaken on 10 October 2012, wherein the following findings were noted:
“Cervical Spine: The cervical vertebrae and disc spaces have a normal appearance.
Thoracic Spine: There is minor degenerative change at all thoracic intervertebral disc spaces with exaggeration of the kyphosis. No fracture or bone destruction is shown.” [33]
[33]See exhibit “B” at page 37 DCB
(h)In a report dated 11 June 2013 addressed to Dr Mitric-Andjic, the physiotherapist, Ms Abbey Fraser, states in part:
“Thank you for referring Gwen to our clinic under the EPC program. Gwen has now completed her prescribed 3 visits.
She presented with chronic bilateral shoulder pain, right worse than left, with a background of rotator cuff pathology.
Objectively, Gwen’s active range is largely preserved. Unfortunately, she is experiencing ongoing night pain.
Treatment, consisting of soft tissue work, joint mobilisation and scapular stabilisation exercises, has been of some benefit.
I suggested Gwen may benefit from a guided CSI into her right rotator cuff interval … She is not receptive to undergoing a subacromial decompression.
… .”[34]
(Emphasis added.)
[34]See exhibit 2 at page 40 PCB
60 I also refer to exhibit “C”, which consists of the Ballarat Group Practice clinical notes.[35] These notes seemingly run from 31 August 1999 (when the plaintiff attended her original general practitioner, Dr C Dennis up until February 2017). Initially I will refer to some of the consultations leading up to the first transport accident on 1 September 2013. The medical records are extensive and sometimes it is very difficult to ascertain what condition the plaintiff may well have been treated for and what each of the medications relate to. In particular, I have attempted to only refer to complaints involving shoulder pain, neck pain or any psychological condition:
[35]See exhibit “C” at pages 61-116 DCB
(a)Over the years from November 1999 to 2004, the plaintiff had been prescribed a number of medications – some of which were for an asthma condition, but also was prescribed at different times, Panadeine Forte caplets and Panamax tablets, Prednisolone tablets, Celebrex capsules, Temaze tablets, Zantac tablets, Voltaren tablets and Stemetil tablets;
(b)On 12 July 2004, Dr Dennis diagnosed the plaintiff to be suffering from osteoarthritis and prescribed Moxacin capsules and Panamax tablets;
(c)On 21 December 2004, the plaintiff was concerned about restless legs and she was prescribed Mobic tablets, Nexium tablets and Panamax tablets;
(d)On 11 November 2006, the plaintiff consulted Dr Dennis, who diagnosed colitis and at that time Voltaren was ceased and prescriptions given for Tramal and Biaxsig tablets.
(e)On 14 February 2008, the plaintiff consulted Dr Dennis, complaining of not sleeping well “but not depressed”. At that time she was prescribed Temaze tablets;
(f)On 8 September 2008, the plaintiff consulted Dr Dennis, complaining of a sore neck with no particular injury. There was discussion as to the use of Panadol, a “collar” and acupuncture;
(g)On 30 July 2009, the plaintiff complained of “restless legs” and it was decided that she would be tried on Valium instead of Temaze, at night;
(h)On 1 December 2009, the plaintiff complained of “Not sleeping, achey all over” and was advised to try one Tramal and two Panamax at night;
(i)On 10 December 2010, the plaintiff complained to Dr Cld that she had been “aching everywhere the last few months and that the Prednisolone had not helped the pain. She was prescribed Norspan patches and Panadol Osteo modified release tablets;
(j)On 1 December 2011, the plaintiff complained to Dr Cld of right arm pain which had been going into her hand, and lateral thoracic pain that goes around into her right breast;
(k)On 28 February 2012, the plaintiff complained to Dr Dennis of feet pain and had questioned whether she had “neuropathic” pain, and there was a trial of Lyrica;
(l)On 13 March 2012, on review, it is noted that the Lyrica was “no good” and the plaintiff resumed the Endep and Tramal;
(m)On 4 May 2012, the plaintiff complained to Dr Dennis of right neck pain and requested a CT scan, and on 11 May 2012 she was contacted and informed that the CT scan revealed no nerve impingement;
(n)On 24 August 2012, the plaintiff consulted Dr Mitric-Andjic, complaining that she had pains all the time, and worse at night. She was diagnosed with Fibromyalgia and treated with Tramal tablets;
(o)Over September 2012, the plaintiff made various complaints of suffering vertigo-like symptoms and received various treatments;
(p)On 9 October 2012, the plaintiff informed Dr Mitric-Andjic that she had pain in the right side of her neck and right shoulder, with radiation to her right breast, together with some vertigo.
(q)On 29 October 2012, the plaintiff complained to Dr Mitric-Andjic of right shoulder pain with abduction, flexion and internal rotation. There was slight swelling and she was sent for an ultrasound of the shoulder;
(r)On 29 October 2012,19 November 2012, 21 November 2012 and 14 December 2012, the plaintiff made complaints to Dr Mitric-Andjic of right shoulder pain and was treated with various tablets, and an inter-articular injection to the right shoulder, and referred for an orthopaedic opinion;
(s)On 23 January 2013, the plaintiff consulted Dr Mitric-Andjic, who noted that there was shoulder pain but not very bad, and there was a medications update;
(t)On 18 April 2013, a review care plan was undertaken, to which reference has already been made in these Reasons;
(u)On 26 July 2013 – about five weeks prior to the first transport accident, the plaintiff attended Dr Mitric-Andjic complaining of epigastric pain and some eye discomfort, for which she was treated with medication and eye drops.
61 I now refer to various medical and other records following on from the transport accidents which occurred on 1 September 2013 and 15 February 2014. Initially I refer to exhibit “C” – that is, the Ballarat Group Practice clinical notes and in particular to the first consultation the plaintiff had with Dr Mitric-Andjic following the first transport accident. Such consultation was on 30 October 2013 and it is recorded that the plaintiff was suffering from”
“anxiety
nightmares since MVA
crying
feeling awafall (sic),
also L shoulder pain
r/v with results
Reactive anxiety
… .”[36]
[36]See exhibit “C” at pages 83-84 DCB
62 The plaintiff was referred for x-rays and an ultrasound of her left shoulder.
63 On 6 November 2013, Dr Mitric-Andjic reviewed the plaintiff and it was noted that she had “more pain” in her left shoulder compared to her right shoulder and it was considered that she should have an injection to the left shoulder.
64 I refer to the ultrasound of the left shoulder and x-ray of the left shoulder undertaken on 1 November 2013.[37] The radiologist, Dr Cliff Trotman reported as follows:
[37]See exhibit 3 at page 93 PCB
“XRAY – LEFT SHOULDER
Findings: There is no calcification in the rotator cuff. There is slight irregularity at its insertion from paratendinopathy. The glenohumeral joints is (sic) unremarkable but there is very minor degenerative change at the AC joint.
US – LEFT SHOULDER
Findings: the biceps tendon is a little swollen but shows no sign of any tear or fluid. Subscapularis shows a full thickness tear measuring 6 x 4mm close to the biceps. The infraspinatus is unremarkable. The supraspinatus tendon shows a full thickness tear at the insertion anteriorly measuring 16 x 12mm in size. The bursa contains some fluid and there is impingement on abduction at around 90°.
Comment: Bursitis and full thickness tears of subscapularis and supraspinatus.”
(Emphasis added.)
65 Also on 1 November 2013, Dr Mitric-Andjic, seemingly with the assistance of Terry Patworth, prepared a Mental Health Care Plan, wherein it was noted that the plaintiff’s “depression” was “severe”; the plaintiff’s “anxiety” was “extremely severe” and the plaintiff’s stress was “moderate”. The plaintiff was referred to the clinical psychologist, Dr Sandra Lorensini.
66 The plaintiff relies on reports from Dr Lorensini dated 20 January 2014 and 11 August 2014.[38] Dr Lorensini notes that she initially consulted with the plaintiff on 14 November 2013 and thereafter saw her on seven occasions up to 14 March 2014.
[38]See exhibit 2 at pages 50-53 PCB
67 Dr Lorensini obtained a history that on 1 September 2013 the plaintiff was involved in a transport accident when her vehicle was struck on the left by a reversing car out of a driveway. Her son and grandson were passengers, and the car was written off. When seen on 14 November 2013, she complained of shoulder, neck and back pain.
68 In particular, the plaintiff reported that following such transport accident, she cried frequently, did not want to leave the house and had sleep disturbance involving intrusive and distressing thoughts of the accident all the time, and reliving the accident. On 21 November 2013, the plaintiff described herself as feeling very “flat”, with no motivation, and she did not leave her house, whereas, pre-accident, she would usually keep busy by visiting her children and helping them. At that time, she reported loss of confidence or was hypervigilant during the occasional times that she did drive, and since having the accident she felt vulnerable “like an 80 year old”. On 29 November 2013, her psychological condition was much the same, and her weight had increased by 5 kilograms due to her eating for comfort.
69 On 6 December 2013, various testing revealed the plaintiff scoring within the “moderate” range for depression and stress and the “severe” range for anxiety. She was continuing to get upset by quite trivial things, could not experience any positive feeling at all and had feelings of shakiness, finding it difficult to relax, was using a lot of nervous energy, was sad and depressed, and felt scared without any good reason. On 1 January 2014, Dr Lorensini wrote to Dr Mitric-Andjic, advising her that the plaintiff had “not responded” to the psychological interventions and suggested that she may benefit from seeing a psychiatrist. On 14 March 2014, the plaintiff consulted Dr Lorensini for the last time pursuant to the Mental Health Care Plan and advised Dr Lorensini that she had been in a further transport accident, causing the plaintiff to be taken to hospital, where she reported having cried for many hours.
70 In her report, Dr Lorensini states:
“It is my opinion that Mrs. Stubbs was traumatized by the accident on 01/09/2013. From the history taken, she suffered sleep disturbance, pain, depression, anxiety, and panic disorder. She was unmotivated, and lacked confidence. Post traumatic stress symptoms included hypervigilance while driving and, as reported on 14/11/2013, intrusive and distressing thoughts of and reliving the accident … .”[39]
[39]See exhibit 2 at page 53 PCB
71 Dr Mitric-Andjic referred the plaintiff to the psychiatrist, Dr Praveen Thottappilil, who initially reviewed the plaintiff on 2 September 2014. At that time, the psychiatrist obtained a history that the plaintiff had no past history of any depression or anxiety and that she had motor vehicle accidents in September 2013 and early 2014. Furthermore, Dr Thottappilil notes that the plaintiff reports to have a long history suggestive of anxiety and depressive symptoms following the transport accident.
72 In particular, I refer to the report from Dr Thottappilil dated 20 May 2015,[40] wherein he states that on 2 September 2014 the plaintiff reported:
“… to get the anxiety of going out, gets panic attacks, worries a lot, especially when she goes out in a car she feels that she will again have an accident. She gets flashbacks, nightmares, startled kind of responses, avoidance behaviour. She used to be a very social person and used to go out and do her things independently, but she has a lot of reluctance going out after the accidents. She has a lot of reluctance to going out, she doesn’t visit her son and daughter, and she doesn’t do her shopping now, most of the time she becomes very reclusive. This has impacted her social and occupational functioning. Her sleep is disturbed and she is getting more and more hopeless and worthless.
She used to pick up her grandchildren before the accident, but she avoids doing that also. There are no drug or alcohol issues. No history of any Bipolar Affective Disorder or psychotic symptoms. She is on a pension. At the time she was taking tablet Endep 10mg 2x night time. She had seen a psychologist in the past but then she stopped seeing the psychologist. Nothing significant in her family and personal history. She has been married and has 4 children, her husband died 12 years ago.”[41]
[40]See exhibit 2 at pages 48-49 PCB
[41]See exhibit 2 at page 48 PCB
73 Dr Thottappilil made a diagnosis of Post-Traumatic Stress Disorder with depressive symptoms and discussed with the plaintiff her various medication options. Dr Thottappilil notes that after reviewing her fairly regularly, she was continuing taking Endep, 20 milligrams, but was still experiencing anxiety relating to driving and a fear of having an accident. Dr Thottappilil notes that he started with a program of her going out slowly and doing some graded exposure, which she was doing initially and made some progress with that, after which she relapsed because she was not very confident about going out and doing her thing.
74 Dr Thottappilil notes that after his March 2015 review, the plaintiff did not come for further review until 19 May 2015, when she reported there was a worsening of her symptoms and that she was becoming more and more reclusive now. At that time she reported she was not driving the car at all, not visiting her daughter and becoming more and more reluctant to go out because of an increase in her anxiety symptoms. Her Endep had been increased to 25 milligrams.
75 In his report, Dr Thottappilil states, in part:
“I suggested Gwenneth re changing the medications, Gwenneth initially did not agree with this, but I explained to her about the medications she is taking which is not helping her. So it is advisable to change the medications. So she has agreed to do this so I have contacted her GP and advised her to stop the current medication, Endep 25mg, and start on capsule Cymbalta 30mg 1x morning and then later to 60mg. My next review with Gwenneth is in June 2015.
Regarding the prognosis I would say that Gwenneth has not made much progress in her symptoms, in fact she has deteriorated. The main problem is the reluctance to go out and fear of having an accident, which is (sic) really impacted her functioning. She was a very high functioning lady before and now she is not functioning because of the trauma she had following the accident.
My aim is to change the medication and continue with the psychological treatment to help her to recover from her illness.”[42]
[42]See exhibit 2 at page 49 PCB
76 On 21 November 2013, the plaintiff underwent a left shoulder injection under ultrasound guidance. I again refer to exhibit “C” – that is, the Ballarat Group Practice clinical notes, and in particular refer to the following.
(a)On 11 December 2013, the plaintiff informed Dr Mitric-Andjic that she had ongoing shoulder pain and there had not been much improvement after the injection. She also complained of depression. The plaintiff was advised to continue taking Panadol Osteo and Tramal;
(b)On 31 January 2014, the plaintiff informed Dr Mitric-Andjic that she was suffering “tiredness” and was sobbing when doing things, and it was noted that she was diagnosed with Fibromyalgia in the past. Amongst other things, the plaintiff was referred for blood tests, and on 19 February 2014, was referred to a rheumatologist, Dr Marion Miller;
(c)On 28 February 2014, the plaintiff complained to Dr Mitric-Andjic of being generally unwell with pain in all joints. At that time, it was noted that she could not see Dr Miller until June and a referral was made to the rheumatologist, Dr Tim Woodruff.
I refer to the report of the rheumatologist, Dr Woodruff, dated 2 April 2014,[43] wherein he records that the plaintiff had had problems with pains in various sites for twenty years or so and that had occurred in episodes up until recently. The plaintiff reported that it could be a month or two of minimal symptoms and then she will get an episode, perhaps lasting up to two weeks, where she would have severe pain in various sites, moving from one site to another, and the sites could include basically anywhere, neck, hip, ankles and wrists, often associated with increase in diarrhoea and abdominal pain (which she attributed to a flare-up of her known ulcerative colitis).
The plaintiff described herself to Dr Woodruff as a “mess” after the last six months. In particular, she described having a transport accident in September [2013] which gave her “immediate pain in the left shoulder but within a week she had a marked increase in pain in her neck and tense weariness and pain everywhere although still in a migratory pattern as before.”[44] She described that such pain was in the neck, behind the ears, behind the eyes, in the hip regions, in the shoulders, hands, ankles, feet and knees. The plaintiff also described symptoms which Mr Woodruff considered to be suggestive of “restless leg syndrome”. The plaintiff also informed him that she had always been a “very poor sleeper and that has not changed”.[45] On noting that her mother had a rheumatoid arthritis history, Dr Woodruff considered the plaintiff may have a mild arthralgia/arthritis of an undifferentiated connective tissue disease. To this end, he prescribed a trial of Plaquenil.
In a later report dated 28 July 2014,[46] Dr Woodruff reports that there was no change in the symptoms of the plaintiff during the course of the Plaquenil, causing Dr Woodruff to the view that her symptoms were not due to low-grade inflammatory arthritis, and seemingly unrelated to her auto-immune abnormalities and family history of auto-immune disease. He suggested that there should be a further trial of Endep.
[43]See exhibit 2 at pages 37-38 PCB
[44]See exhibit 2 at page 37 PCB
[45]See exhibit 2 at page 37 PCB
[46]See exhibit 2 at page 39 PCB
77 The plaintiff also relies on several reports from the treating doctor, Dr Mitric-Andjic, two of which are undated, and the other two dated 12 August 2014 and 9 May 2017.[47]
[47]See exhibit 2 at pages 30-34c
78 In the initial report, Dr Mitric-Andjic also notes that on the “30 September",[48] the plaintiff reported that she was feeling awful, crying a lot, and having nightmares. Also, the plaintiff complained of having pain in her left shoulder. At that stage a Mental Health Plan was arranged and she was referred to the psychologist, Sandra Lorensini, for six sessions.
[48]This would seem to be incorrect, it should be 30 October when one compares the running notes of the practice
79 Ultimately, Dr Mitric-Andjic notes that the plaintiff has a:
“… longstanding history of adjustment disorder and anxiety and she is on Endep(antidepressant) (sic) since 2010. Also she has been taking Valium occasionally since 2002. She remains unstable. She has had longstanding sleeping problem.”[49]
[49]Exhibit 2 at page 30 PCB
80 Dr Mitric-Andjic did note that the plaintiff was suffering nervousness and “still doesn’t do things she use (sic) to do before.”[50]
[50]Op cit
81 In the report dated 12 August 2014, Dr Mitric-Andjic sets out a chronology of various conditions and, in particular, notes that the plaintiff suffered “depression” in 2013, but also had what is referred to as an “adjustment disorder” in 2005.
82 In the further report which is undated, but seemingly the third report in time, Dr Mitric-Andjic notes that the plaintiff had seen the psychologist on six occasions until 20 January 2014 and “she [the plaintiff] believes she has recovered from her accident in September 2013”.[51] Dr Mitric-Andjic also notes that the psychologist was wondering if she may benefit from seeing a psychiatrist as she continues feeling generally unwell.
[51]Exhibit 2 at page 33 PCB
83 Dr Mitric-Andjic also notes that around that time she was seeing the orthopaedic surgeon, Mr Dillon, for Right Shoulder Impingement Syndrome Supraspinatus, as well as a suprascapularis tendon tear. Dr Mitric-Andjic notes that the plaintiff did have left shoulder injections on 22 November 2013 and another injection on 5 December 2013.
84 In that report Dr Mitric-Andjic also notes that the plaintiff had the further accident in February 2014 where she sustained “multiple sprains and strains”, and was observed at the Ballarat Base Hospital. In particular, Dr Mitric-Andjic stated:
“On 12 of August 2014 she reported to me that she was struggling to do things, has anxiety going out and fears that she will have another accident again. She was seen by her psychiatrist on 12 th of September 2014 and was diagnosed with PTSD and depressive symptoms. Gwenneth wasn’t keen on medications due to poor tolerance and (sic) psychiatrist suggested graded exposure to different scenarios one by one … .”[52]
[52]Exhibit 2 at page 34 PCB
85 I refer to what appears to be the third report in time.
Gwenneth has suffered from adjustment disorder,chronic fatigue syndrome and osteoarthritis prior to her accidents.She did have migratory pains and aches in her joints prior to the accidents.
I believe that the accidents were minor but they did aggravated her anxiety.She is diagnosed by psychiatrist having post traumatic stress disorder.
She will probably continue to suffer ongoing polyarthralgia but she has that problem prior to MVA’s.
… .”[53]
(sic)
(Emphasis added.)
[53]See exhibit 2 at page 30 wherein Dr Andja Mitric-Andjic states that the plaintiff was then a seventy-one-year-old lady with longstanding polymyalgia and joint pain, Adjustment Disorder, Anxiety/Depression, osteoarthritis, ulcerative colitis, Meniere’s Disease and Chronic Fatigue Syndrome.
86 In the final report dated 9 May 2017, Dr Mitric-Andjic sets out various dates and treatment from mid-2015. In particular, it is noted that on 15 December 2015 the plaintiff presented with left shoulder pain when an ultrasound was organised, and subsequently she had an intra-articular steroid injection into the left shoulder. She was also presented for other unrelated problems, such as incontinence, ankle swelling and various bronchial conditions.
87 Also, on 13 October 2016, the plaintiff apparently presented in tears, suffering pain in both shoulders and she commenced some trial medications for her colitis. She was treated initially with Zoloft which gave rise to a bad reaction, and later this was changed to Cymbalta. On 24 November 2016, the plaintiff was complaining of bone pain and refused to take Targin and Lyrica prescribed by a pain clinic, which Dr Mitric-Andjic considered to be “understandable” as the plaintiff had bad reactions to many medications. At that time she continued to take Tramal and Panadol Osteo.
88 The plaintiff was referred to the orthopaedic surgeon, Mr Paul Plank, in relation to her left shoulder condition. In particular, on 7 April 2017, she had anterior/posterior vaginal repair and vault prolapse.
89 In particular, Dr Mitric-Andjic states:
“On 21/04/2017 she presented for follow up and she was very disappointed with the operation results and reported there was not much improvement with incontinence. On this appointment we discussed her MVA and she wanted to proceed with that as she think she was affected psychologically.
After the accidents she was anxious when going out of her home and was having panic attacks .She was getting a lot of flashback and nightmares and she started avoidance behaviour at that time. She had to ask her daughter for help and she stopped driving as she was worried she will get involved in another accident. She did seen the psychologist and she was referred to psychiatrist as she didn’t improve much with psychological treatment. Graded exposure, anxiety management and antidepressants were implemented as per psychiatrist.
Unfortunately she reacted to many medications and the only antidepressant she can tolerate is low dose of Endep. Over the time she improved to same degree but having a lot of health issues she continued to struggle.
… .”[54]
(sic)
[54]See exhibit 2 at page 34b PCB 34b
90 The plaintiff also relies on a report from the orthopaedic surgeon, Mr Paul Plank,[55] who examined her on referral from Dr Mitric-Andjic. Seemingly, the initial consultation was on 16 February 2017, when a history was given that she was having pain in both shoulders from two separate car accidents. Furthermore, a history was given of having previous injections performed under ultrasound control, with one injection working quite well, but the second injection not making much difference. On that day, Mr Plank re-injected both shoulders, hoping that would give her some good symptomatic relief. I refer to a letter from Mr Plank to Dr Mitric-Andjic dated 16 February 2017,[56] wherein he states, in part:
“She has had symptoms [in both shoulders] here for quite a while now but they have been exacerbated by two separate car accidents that, unfortunately, she has been involved with.
She has had some injections performed under ultrasound control with the first one working quite well but the second one not really making much difference.”
[55]See exhibit 2 at page 92a PCB
[56]See exhibit “B” at page 60 DCB
91 When reviewed on 17 May 2017, Mr Plank notes that the injections given did not help very much. Based on that, he organised for her to have an MRI scan of both shoulders as well as her cervical spine.[57]
[57]Refer to the MRI scan of the cervical spine and the left shoulder dated 23 May 2017 and the MRI scan of the right shoulder undertaken on 25 May 2017, all of which is found at exhibit 3 at page 95A–98D PCB
92 In particular, Mr Plank states:
“Her cervical spine MRI was essentially normal with only a very minor disc bulge at one level which would be asymptomatic. Unfortunately both her right and left shoulder MRI scans confirm full thickness tears involving the supraspinatus tendons.
Unfortunately it is a very difficult situation when somebody is 73 years of age having this problem because it is difficult to know with 100% certainty whether it was the car accident that has injured both shoulders or whether these tears are simply degenerative in nature considering her age. Also considering her age, the success rate of doing surgery in a 73-year-old with this problem is certainly not as high as in someone who is aged 55 or less.
I had a long discussion with Gwyneth (sic), whether she just wants to continue to live with the problem by taking ongoing analgesic medication and anti-inflammatory tablets. Certainly it is always possible to do surgery to repair her rotator cuff but it was important to make her aware that the success rate is certainly not 100% really just based on her age.”[58]
(Emphasis added.)
[58](Op cit) at PCB 92a-92B
93 I have read all the material tendered by both parties and, in particular, I refer to:
(a)The medical report from Dr Megan Haysey (the anaesthetics Registrar, to the chronic pain specialist, Dr Kieran Tipper), dated 29 April 2015,[59] who reports that she examined the plaintiff on 29 April 2015, at which time there were complaints of multiple sources of pain. In particular, Dr Haysey states:
“Her chief complaints include somatic pain due to osteoarthritis of bilateral shoulders and hips, but also affecting her neck and lumbar spine at times.”[60]
(b)The report of the infectious diseases expert, Dr Raquel Cowan, dated 5 April 2016,[61] in respect of bronchial problems suffered by her;
(c)I also refer to the review of the Chronic Disease Management Plan and Team Care Arrangements dated 23 May 2014[62] and on 3 November 2015.[63]
[59]See exhibit “B” at pages 50-51 DCB
[60]See exhibit “B” at page 50 DCB
[61]See exhibit “B” at pages 58-59 DCB
[62]See exhibit “B” at pages 45-49 DCB
[63]See exhibit “B” at pages 52-57 DCB
Medico-legal opinions
94 It is also convenient to refer to the various medico-legal opinions.
95 Those acting on behalf of the plaintiff arranged for the plaintiff to be examined by the orthopaedic surgeon, Mr John O’Brien, on 3 February 2015,[64] 30 November 2015,[65] and finally on 17 January 2017.[66] These examinations were, in part, to obtain an AMA Assessment of permanent impairment.
[64]See report of same date – exhibit 2 at pages 54-57 PCB
[65]See report dated 5 January 2016 – exhibit 2 at pages 60-63 PCB
[66] See report dated 19 January 2017 (although the report is mistakenly dated 2016)
96 In his first report, Mr O’Brien obtained a history of the plaintiff suffering both transport accidents. In particular, he obtained a history that following the first transport accident she became aware of left-sided headache and some pain in the left side of the neck extending to the shoulder. The plaintiff also gave a history that following the second transport accident she felt that her neck and left shoulder pain were perhaps aggravated by the accident, but she reported no new pain or any other specific injury.
97 In particular, a history was obtained by Mr O’Brien that prior to the transport accidents she had been aware for some time of her right shoulder pain, which she described was similar to the left shoulder pain she subsequently experienced after the first transport accident. Mr O’Brien noted that the plaintiff did appear to be rather anxious and a little emotional in describing the effects of the accident. Based on the history given to him – including the history that she had no prior left shoulder pain – Mr O’Brien was of the opinion that the first transport accident caused left-sided neck and left shoulder pain, which has continued since that date. Furthermore, at the time of examination, Mr O’Brien was of the opinion that the plaintiff demonstrated chronic neck and left shoulder pain and that the prognosis was moderately poor.
98 In a subsequent short report dated 29 April 2015, in response to further material forwarded to Mr O’Brien, Mr O’Brien noted that the plaintiff’s medical history was a little bit more complicated than expressed by her in discussing her past history. Notwithstanding, he stood by his opinion in relation to the AMA impairment.
99 At the time of his second examination, Mr O’Brien noted the plaintiff presented with a “somewhat flat affect” although she was observed to move reasonably freely and did demonstrate a normal gait. At that time he had available the ultrasound of the left shoulder dated 1 November 2013, which indicates a full thickness tear of the supraspinatus and subscapularis tendons associated with impingement. Mr O’Brien continued to maintain his opinion.
100 When last examined on 17 January 2017, and after further examination, Mr O’Brien expressed the following opinion:
“The patient describes a motor vehicle accident in September 2013 precipitating significant left sided neck and shoulder pain. A subsequent accident occurring in January 2014 was reported as causing significant aggravation of the pre-existing left sided neck and shoulder pain. Indeed since that time despite fairly extensive treatment the patient reports little improvement in relationship to the severity of pain.
Physical signs again remain subjective with painful restriction of movement of the cervical spine and also the left shoulder. Indeed it would suggest that there has been no substantial change in relationship to the nature and severity of the symptomatic cervical pathology or indeed the left shoulder pathology. I would in fact consider that there is now chronic cervical pain related to the symptomatic cervical spondylosis in addition to chronic left shoulder pain associated with rotator cuff pathology.”[67]
[67]See exhibit 3 at page 67 PCB
101 I also refer to the report of the orthopaedic surgeon, Dr Anna Manolopoulos, who examined the plaintiff on behalf of the defendant on 6 April 2017. Such report was tendered by those acting on behalf of the plaintiff .[68]
[68]See exhibit 4 at pages 96-103 PCB
102 At the time of examination, Dr Manolopoulos noted that the plaintiff had supraspinatus and infraspinatus fossa wasting bilaterally and her range of movement in the left shoulder was markedly reduced.[69] She had available to her the ultrasound of the left shoulder demonstrating the tears.
[69]See exhibit 4 at page 99 PCB
103 In particular, Dr Manolopoulos stated:
“I feel the injuries sustained by Ms Stubbs in her first accident are an exacerbation of pre-existing pathology present in the left shoulder already. Although Ms Stubbs denies any symptoms in her left shoulder prior to her accident, the history provided for me in terms of the brief and the history from the GP suggests she did have some shoulder symptoms prior to September 2013.
In addition her age (being over the age of 65 years) is strongly associated with the pre-existing rotator cuff pathology including rotator cuff tears. I suspect that the aggravation was fairly severe after [t]he first accident as she was previously asymptomatic and then became quite symptomatic in the shoulder.”[70]
[70]See exhibit 4 at PCB 100
104 Dr Manolopoulos also considered there was an aggravation of the pre-existing pathology as the result of the second transport accident.
105 Dr Manolopoulos also noted that, as far as she had been made aware, the plaintiff did not have any restrictions prior to her first accident. The plaintiff described no pain in the shoulder, although, as noted by Dr Manolopoulos, this is contraindicated somewhat in her brief and previous progress notes.
106 I also refer to the reports of the psychiatrist, Dr Lester Walton, who examined the plaintiff on behalf of the solicitors for the plaintiff and the Transport Accident Commission as follows:
(a) 3 March 2015[71]
(b) 29 October 2015;[72] and
(c) 17 January 2017.[73]
[71]See report dated 11 March 2015, exhibit 2 at pages 69-75 PCB
[72]See report dated 4 November 2015, exhibit 2 at pages 80-87 PCB
[73]See report dated 19 January 2017, exhibit 2 at pages 89-92 PCB
107 When first seen on 3 March 2015, Dr Walton obtained the history that after the first transport accident the plaintiff was aware of pain affecting her left shoulder and had been diagnosed with some form of soft tissue “tear” and was treated with a series of local steroid injections. She was continuing to suffer from intermittent pain affecting her shoulder and, at that time, was relying on analgesic and anti-inflammatory medication.
108 In particular, the plaintiff stated she was “in reasonably sound physical health prior to the transport accident”, although she did suffer from longstanding ulcerative colitis, her symptoms being well controlled with medication. She had also been diagnosed with Coeliac Disease, and that was managed by diet. In the past she has undergone sinus surgery and hysterectomy with no ongoing problems.
109 In particular, the plaintiff gave no past psychiatric history.
110 The plaintiff gave a history that following the first transport accident she remained “anxious about driving” and after the second accident she commenced experiencing panic attacks and the anxiety became worse. She was suffering continuing anxiety. In particular, the plaintiff gave a history that she has a reluctance to drive and that leads to a degree of inability; although feeling reasonably secure in her own home, if she has to venture out she becomes typically depressed, although this has not reached suicidal proportions. Furthermore, she has become rather forgetful of specific names and dates, and does have intrusive flashback memories of both accidents.
111 According to Dr Walton, the plaintiff was “rather vague” about the details, but gave a history that soon after the second accident she consulted on multiple occasions with a psychologist, and was referred on to a treating psychologist. Although not being able to name the doctor, she has been attending on a monthly basis (at the time of her first examination). During his psychiatric examination, the plaintiff was pleasant, friendly and forthcoming, but prone to intermittent tearfulness, and described her own mood as “I’m very emotional, talking about me”.
It is noteworthy that at the initial consultation on 1 September 2013 – well before the second transport accident – the plaintiff stated that she cried frequently, did not want to leave the house, had sleep disturbance involving intrusive and distressing thoughts about the accident, and reliving the accident. Later (although well before the second transport accident), she described herself as being very “flat”, with no motivation and did not leave her house, whereas, pre-accident, she would usually keep busy by visiting her children and helping them. Furthermore, she reported a loss of confidence and was hypervigilant during the occasional times that she did drive, and since having the accident she felt vulnerable “like an 80 year old”.
When seen on 29 November 2013, her psychological condition was much the same and her weight had increased by 5 kilograms due to eating for comfort. On 6 December 2013, various tests reveal the plaintiff scoring within the moderate range for depression and stress, and the severe range for Anxiety. She was continuing to get upset by quite trivial things, could not experience any positive feelings at all, and had feelings of shakiness, found it difficult to relax, was using a lot of nervous energy, was sad and depressed, and felt scared without any felt scared without any good reason.
On 1 January 2014 – about six weeks prior to the second transport accident – Dr Lorensini wrote to Dr Mitric-Andjic advising her that the plaintiff had “not responded” to the psychological interventions and suggested that she may benefit from seeing a psychiatrist.
When last seen on 14 March 2014, Dr Lorensini reported to Dr Mitric-Andjic, that the plaintiff was traumatised by the accident on 1 September 2013, causing her to suffer sleep disturbance, pain, Depression, Anxiety and Panic Disorder. Furthermore she was unmotivated and lacked confidence, together with post-traumatic stress symptoms, including hypervigilance when driving and intrusive and distressing thoughts of reliving the accident. It is to be stressed that Dr Lorensini had the advantage of seeing the plaintiff after the first transport accident and after the second transport accident. When seen on 14 March 2014 (approximately one month after the second transport accident), the psychologist described a well-established condition caused by the first transport accident on 1 September 2013).
Dr Mitric-Andjic then referred the plaintiff to the psychiatrist, Dr Praveen Thottappilil, who initially reviewed her on 2 September 2014 and, again, the psychiatrist obtained no history of the plaintiff having any Depression or Anxiety prior to the transport accidents. At that time, Dr Thottappilil notes that the plaintiff reported to have a long history suggestive of anxiety and depressive symptoms following the first transport accident. Dr Thottappilil continued to treat the plaintiff until about 19 May 2015, during which time he reports that she has had anxiety going out, gets panic attacks, worries a lot, especially when she goes out in a car she feels she will have another accident, has flashbacks, nightmares, startled kind of responses and avoidance behaviour.
In particular, Dr Thottappilil opines that whereas the plaintiff had been a “very social person” and used to go out and do her things independently, but she has a lot of reluctance going out after the accident. She does not visit her son and daughter and does not do her shopping now, and most of the time she becomes very reclusive, which has impacted on her social and occupational functioning, whereas she used to pick up her grandchildren before the accident, she avoids doing this also.
Dr Thottappilil noted that at the time he commenced treatment, the plaintiff was taking Endep for her condition, but was still experiencing Anxiety and Dr Thottappilil ultimately increased her dosage of Endep, and later there was a change to Cymbalta.
When seen on 19 May 2015, Dr Thottappilil notes that the plaintiff had not made much progress in her symptoms and, in fact, if anything, “has deteriorated”. He noted that the main problem, according to him, is the reluctance of the plaintiff of to go out in fear of having an accident, which has really impacted on her functioning. Dr Thottappilil noted that the plaintiff was a “very high functioning lady before” and now she is not functioning because of the trauma she had following the accident.
The symptoms displayed by the plaintiff were occurring well prior to the second transport accident, as indeed was the treatment from the psychologist;
(c)Although it is correct that Dr Walton diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder of “reasonably mild severity” – this description occurred after the first examination – and that he considered the prognosis to be “favourable”. Subsequent examinations did not bear this out. He continued to maintain his diagnosis of Post-Traumatic Stress Disorder and, on the last examination “discernible depressive features as well”. Although relevant, the description by Dr Walton of the Post-Traumatic Stress Disorder to be of “reasonably mild severity” is not particularly helpful. As was pointed out in Katanas,[107] the application of the narrative tests entails a two-stage process – initially, an assessment of whether the nature and the symptoms of the mental or behavioural disturbance or disorder are subjectively “severe”, and secondly, a determination of whether, in the cases of mental or behavioural disturbance or disorder, is objectively “severe” when compared with the range or “spectrum” of comparable cases. It is the consequences suffered by this plaintiff which must be assessed and determined whether they are severe within the meaning of the narrative test. The uncontested evidence is that the plaintiff was a high-functioning woman prior to the transport accident, whereas she is virtually just the opposite after the advent of the first traffic accident, and thereafter;
(d)I also refer to the follow-up report from Dr Walton dated 6 May 2015, where he makes further comments after receiving material consisting of a variety of reports from treating doctors. A perusal by him of that material is that Valium was seemingly prescribed intermittently since 2002 for Insomnia, and the antidepressant, Endep, was introduced in 2010, which would appear to have been a pain-control measure. Dr Walton accepts there may have been a minor psychiatric history prior to the initial transport accident. Of course, the treating psychologist and the treating psychiatrist, both of whom examined the plaintiff on referral from the general practitioner, were of the opinion that the plaintiff had no prior history of psychiatric injury;
(e)Dr Walton also opined after his first examination that although “difficult to be precise”, there appeared to be approximately equal contributions from each transport accident to her condition, and that there were “no contributions to impairment” external to the accidents. Of course, although an expert opinion in relation to causation, such opinion is not conclusive and it is ultimately for the fact finder to determine the matter on the basis of all the evidence. As I have already pointed out, the history given by the plaintiff to Dr Walton as to when she attended the psychologist and psychiatrist and, indeed, when a variety of symptoms first manifested, no doubt influenced Dr Walton in relation to the role of the second transport accident. After a consideration of all the evidence, I consider that the plaintiff had well-established Post-Traumatic Stress Disorder Symptoms (as reported by the psychologist, Dr Lorensini) well prior to the second transport accident and, indeed, consistent with her opinion, the first transport accident caused such condition. Clearly enough, the plaintiff had symptoms after the second transport accident, which were reflective of the ongoing Post-Traumatic Stress Disorder. If anything, the Post-Traumatic Stress Disorder suffered by the plaintiff after the first transport accident made her more vulnerable to any further transport accident suffered by her.[108]
[107][2017] HCA 32
[108]See generally Altona Bus Lines v Lococo [2002] VSCA 159 and in particular at paragraph [11]
156 I now set out my reasons for my determination that the first transport accident resulted in the plaintiff suffering a severe long-term mental disturbance or disorder within the meaning of s93(17)(c) of the Act as a result of the first transport accident:
(a)Although there is notes and reports authored by her general practitioner, Dr Mitric-Andjic, suggesting that the plaintiff had a “longstanding history of Adjustment Disorder and Anxiety”, for which she has been on Endep since 2010 and that she has also been taking Valium since 2002, a perusal of the records does not generally bear this out. Although there is reference to Endep and Valium, it would seem to have been prescribed for sleep purposes, pain reduction, or what was referred to as “lazy legs” sensation. In a report dated 12 August 2014, Dr Mitric-Andjic sets out a chronology of various conditions and, in particular, notes that the plaintiff suffered “depression” in 2013, but also had what is referred to as an “Adjustment Disorder” in 2005;
(b)As was pointed out by Dr Walton, the prescription of Valium and Endep seemingly were prescribed respectively to assist Insomnia and pain relief. There does not appear to be any records suggesting the plaintiff had an “Adjustment Disorder” in 2005. It must also be borne in mind that in her affidavit material, the plaintiff described how she stopped working in about 1999, when her husband became very ill, and she cared for him until his death in 2002. In particular, her husband had been on dialysis for about eight years, and for the last eight months of his life was transferred to Melbourne, and she accompanied him, living in hospital accommodation. The plaintiff notes that she had to “cope with watching him slowly dying. Despite the grief I felt I coped well”.[109] Furthermore, when cross-examined, the plaintiff strongly disagreed with the cross-examiner that prior to the first traffic accident she did suffer from Anxiety and Depression and took anti-depressive medication for that condition. Indeed, she did not remember ever taking Valium, but accepted that she may have been on some Endep, which was to assist her sleeping.[110]
[109]See exhibit 1
[110]See generally T36, L24-T37, L29
In any event, I do refer to the review by Dr Mitric-Andjic of a Chronic Disease Management Plan which had been commenced by her predecessor, Dr Dennis. The review occurred on 18 April 2013, approximately four-and-a-half months prior to the first transport accident.[111] That review is extensive and, in particular, under the heading “PSYCHOSOCIAL”, the doctor has noted that she has no concerns about depression and that the plaintiff, at that time, had the following social supports:
[111]See Exhibit “B” at pages 30-34 DCB
“Probus club. Has a lot (sic) of family support and out and about with friends.”[112]
[112]See exhibit “B” at page 33 DCB
The doctor also noted the plaintiff was enjoying getting out, and is doing “a horticultural course with grand daughter (sic).”[113]
[113]See exhibit “B” at page 33 DCB
(c)Although the plaintiff was suffering a range of organic conditions prior to the first transport accident, there is scant evidence to suggest that she had any psychological injury and, indeed, at least in the months leading up to the first transport accident, her psychological assessment was consistent with her description of her activities of being out and about, mixing with family and friends, and leading an active life. In this sense, I do not necessarily accept that any psychiatric injury resulting from the first transport accident must be analysed as being an aggravation of a pre-existing condition. If there is any pre-existing condition, it seemingly only minimally impacted on her day-to-day activities;
(d)Consistent with the evidence to which I have already referred following the first transport accident, I do find that the plaintiff suffered a Post-Traumatic Stress Disorder which became evident quite soon after the first transport accident, as diagnosed by the psychologist. Again, there was no improvement in that condition at the end of her consultations with the psychologist pursuant to her Mental Health Plan, causing the psychologist to recommend that the plaintiff be transferred to a psychiatrist. This was done, as I have already detailed, with the psychiatrist confirming the diagnosis of Post-Traumatic Stress Disorder.
(e)There is no issue that the psychologist ceased treating the plaintiff on 14 March 2014, and that the treatment of the treating psychiatrist came to an end seemingly in or about May 2015. Again, although I accept that such facts are relevant in determining this matter, again, it must be borne in mind that on the basis of the evidence of Dr Walton, there has been the ongoing condition of Post-Traumatic Stress Disorder.
Similarly, she was initially prescribed Cymbalta, and later, Zoloft, for her Anxiety and Depression from her treating psychiatrist, but felt that neither helped her. She does not take any medication for the condition now, but that is, in part, due to several reasons – namely the prescribed medication for her Depression did not seem to help, she was also on a large number of other medications for her various organic conditions and, of latter times, she is trialling a new drug for one of her organic conditions, which cannot be interfered with by other distinct medications. It should also be noted that she ceased attending her treating psychiatrist because he wanted her to move back into the outside world on a gradual basis to overcome her condition. She found this advice unhelpful and impossible to perform. I also note that when cross-examined by Senior Counsel for TAC about her lack of treatment for her mental condition and, in particular, refer to the following evidence:
Q:“You've had no treatment, that is, no need to see the psychiatrist, for some - well, one and the other, both three and a half, and two and a half years respectively. Is that right?---
A:I haven't, no.
Q:You haven't had the need to see them?---
A:I've had probably the need, but I haven't gone.”[114]
(f)I do accept that at various places in her affidavit material, the plaintiff has fluctuated as to the significance, or otherwise, of the second transport accident. Before turning to that, I do find that prior to the advent of the traffic accidents the plaintiff did lead an active and satisfying lifestyle. In this respect, I note in her evidence that her usual daily routine involved getting everything done in her home by about 8.30am, before spending the rest of the day as she liked. She lived on her own, and was proud of her independence and ability to lead such an active life at her age. She was energetic and enthusiastic about activities, and has a positive and confident attitude about life. At that time, the plaintiff worked in a number of part-time cleaning jobs and frequently spent time at the home of one of her children, helping with chores, driving grandchildren to and from school, and looking after and playing with her grandchildren. She cooked, cleaned and gardened at the homes of her grandchildren, and also loved working in her garden. She had a lot of friends at Probus, and enjoyed going on a train or driving trips to Melbourne or Geelong on her own, or with friends. As already pointed out, such would appear to be consistent with the psychosocial analysis by her treating doctor some four or so months prior to the transport accident;
At paragraph 14 of her second affidavit, the plaintiff deposes that while outwardly her lifestyle did not change much after the first traffic accident, she was very anxious, had frequent nightmares, and was crying a lot, and was genuinely feeling down and awful. Also, at paragraph 15 of her second affidavit, the plaintiff deposes that she was still suffering from severe Anxiety, and from Depression and stress, when the second transport accident occurred. In particular, she asserts that the main consequence of her second accident was that it “made me realise that I had to be open with my family and seek their support.”[115] She could “no longer play the role of the tough and resilient family elder”;[116]
I also note that the plaintiff deposes that the first transport accident “really shook me”, because she was driving a small car and had with her, as passengers, her son, Robert, then aged forty-six, and her granddaughter, Codi, who was then aged seventeen. She described how, when her car was struck on the passenger side, causing her car to be pushed into the path of oncoming vehicles, she was in fear for her life, or serious injury, and that of her son and granddaughter.
I also refer to paragraph 14 of the plaintiff’s first affidavit, wherein she deposes that her life had fallen into a “hole” since the second accident and that she has lost her positive enthusiastic attitude, as well as motivation, spending a lot less time with family (including her grandchildren) because of her changed mental state since the second accident, and also because of her left shoulder condition.
[114]T37, L22-27
[115]See exhibit 1, plaintiff’s second affidavit dated 13 April 2017 at page 16 PCB
[116]See exhibit 1, plaintiff’s second affidavit dated 13 April 2017 at page 16 PCB
157 After a consideration of all of the evidence, I consider that the plaintiff, although suffering classical symptoms of Post-Traumatic Stress Disorder following the first transport accident “soldiered on”, but after the second transport accident realised that such could not continue, causing her to be more open with her family as to her ongoing symptoms.
158 Ultimately, it must be borne in mind that the plaintiff, prior to her first transport accident, was a woman of mature years, who was suffering a range of organic conditions for which treatment was an ongoing necessity. Notwithstanding that, the plaintiff did lead a particularly active life of which she was proud and enjoyed. The consequences of her Post-Traumatic Stress Disorder must be seen in this context. The subjective consequences suffered by her are relevant in making an objective assessment as to the severity of the condition. After a consideration of all the evidence, I do accept that when applying the narrative test, the plaintiff has suffered a “severe” long-term mental disturbance or disorder within the meaning of the Act.
159 Largely for the reasons which I have already stated, I do not consider that the plaintiff has established that the transport accident on 15 February 2014 – the second transport accident – aggravated her pre-existing condition to the extent that such aggravation constituted a severe long-term mental disturbance or disorder. As I have already indicated, the symptoms experienced by the plaintiff from the first transport accident, continued on after the second transport accident, with the second transport accident perhaps only making the plaintiff realise that she could not continue on without making her family and friends aware of her ongoing psychological problems.
160 In relation to the claim by the plaintiff pursuant to s93(17)(a) of the Act, I am not satisfied that the plaintiff had suffered a serious long-term impairment of either the neck or the left arm. In particular, there is little or no evidence to support that the plaintiff had suffered any impairment to the neck as a result of the first transport accident and, although arguable, I do not consider that, as a matter of probability, the plaintiff has discharged her onus in establishing that the first transport accident resulted in a serious long-term impairment of the left shoulder.
161 My reasons for making such a determination are as follows:
(a)I do accept that a perusal of the medical records pertaining to the plaintiff leading up to the first transport accident, insofar as they related to shoulder problems, largely, although not exclusively, relate to right shoulder problems rather than the left. However, it cannot be gainsaid that, in particular, the following matters have occurred:
(i)Dr Dennis, the treating general practitioner of the plaintiff prior to Dr Mitric-Andjic, completed a Centrelink report dated 2 May 2000 wherein she described the plaintiff suffering a variety of conditions, but including osteoarthritis and Fibromyalgia. In relation to those conditions, she listed the clinical features as being “pain neck, back, hands & shoulder”;
(ii)On 18 August 2014, the orthopaedic surgeon, Mr John Bourke, reported by letter to Dr Dennis that the plaintiff continued to have pain in both shoulders, more especially the right, together with pain in the neck and pain in both elbows. He also noted that he had injected the right subacromial bursa with anaesthetic and that he intended to inject the left subacromial bursa in about a week’s time;
(iii)Dr Mitric-Andjic, who took over from Dr Dennis in June 2012 on her retirement, reviewed a Chronic Disease Management Plan on 18 April 2013, wherein she recorded that the plaintiff had suffered osteoarthritis since 2004 and, in particular, stated that the plaintiff has:
“A lot of joint pain due to osteoarthritis … .” [117]
[117]See exhibit 2 at page 40 PCB
Under cross-examination, the plaintiff accepted, as I understood her evidence, that she had pain in her shoulders and, for present purposes, particularly her left shoulder;
(iv)In particular, the plaintiff has referred to the physiotherapist, Ms Abbey Fraser, who reported on 11 June 2000 (slightly less than three months prior to the transport accident), that the plaintiff presented with “chronic bilateral shoulder pain, right worse than left, with a background of rotator cuff pathology.”[118]
[118]See exhibit 2 at page 40 PCB
It is not clear as to the origin of the pain suffered by the plaintiff in her left shoulder. Is it really no more than another flare-up of her Fibromyalgia and/or osteoarthritis or, indeed, a consequence of some rotator cuff pathology. It is to be remembered that the first transport accident occurred on 1 September 2013 and it was not until 30 October 2013 that the plaintiff attended on her general practitioner with complaints of left shoulder pain.
(b) I accept that the plaintiff did complain of left shoulder pain when initially examined after the first transport accident on 30 October 2013, causing her general practitioner, Dr Mitric-Andjic to arrange scans of the left shoulder, which did demonstrated tears on the rotator cuff and also subsequently caused Dr Mitric-Andjic to administer injections into the left shoulder. Although I have noted that an earlier scan of the left shoulder showed no tearing, whereas the later scan did show tearing, there is no direct evidence of the first traffic accident causing or aggravating any condition in that shoulder. Mr Plank, the treating orthopaedic surgeon, was not prepared to draw any relationship between the first traffic accident and the left shoulder condition or, indeed, the right shoulder condition of the plaintiff;
(c)There appears to be no treating medical practitioner who supports the proposition that the first transport accident was a cause of her ongoing left shoulder pain. In particular, the treating general practitioner, Dr Mitric-Andjic, considered that the accidents were “minor”, but they did, according to her, aggravate her anxiety;
(d)In any event, given the clear evidence that the plaintiff had suffered pain in her left shoulder prior to the first transport accident, the claim could only succeed if it is was established as a matter of probability that the transport accident did aggravate such pre-existing condition and that the extent of such aggravation was serious within the meaning of the definition of serious long-term impairment of the left shoulder and/or neck. That would involve a comparison of her condition prior to the injury and to that afterwards. No doctor has particularly turned his or her mind to that consideration;
(e)I also refer to the reports relied on by the plaintiff from Mr O’Brien, the orthopaedic surgeon, whereat he accepts that the first transport accident caused symptomatic cervical spondylosis and left shoulder rotator cuff pathology. I accept the submission of Senior Counsel for the defendant that such an opinion is flawed, to the extent that Mr O’Brien was acting on the assumption that the plaintiff had no pain or treatment for her left shoulder condition prior to the first transport accident. Unfortunately, given what some of the documentation reveals and, indeed, the evidence from the plaintiff, herself, it is clear that symptoms were experienced in her left shoulder – for whatever reason – prior to the first transport accident.
I stated earlier that the case for the plaintiff is perhaps arguable in relation to the left shoulder, given that symptoms of the left shoulder were more graphic and long-lasting, although fluctuating, from a short time after the occurrence of the first transport accident. At first blush, the proximity of the onset of symptoms to the first transport accident gives some basis, at least, for establishing a relationship but, again, this must be viewed in the context of at least the various matters I have referred to prior to the first transport accident and perhaps, more particularly, in a proximity sense, the attendance on the physiotherapist, Ms Abbey Fraser on or about 11 June 2013, when the plaintiff presented with chronic bilateral shoulder pain, right worse than the left, on a background of rotator cuff pathology.
162 Accordingly, I do find that the plaintiff has been successful in establishing that she has suffered the long-term mental disturbance or disorder as a result of the first transport accident on 1 September 2013. Accordingly, pursuant to s93(17) of the Act, I grant leave to the plaintiff to bring common law proceedings in relation to injury suffered by her in the first transport accident on 1 September 2013.
163 I will hear the parties on the question of costs.
ANNEXURE “A”
1 The plaintiff tendered the following documents:
Exhibit 1
·Affidavits of the plaintiff sworn 3 February 2016 and 13 April 2017
·Affidavit of the daughter of the plaintiff, Leanne Biggin, sworn 13 April 2017.
(Such documents are found at pages 8-25 of the Plaintiff’s Court Book (“PCB”).)
Exhibit 2:
·Medical report of Mr John Dillon of Ballarat Health Services dated 17 September 2013
·Report of Dr Tang dated 31 October 2013
·Emergency Department report dated 15 February 2014
·Medical reports of Dr Andja Mitric-Andjic, undated, 12 August 2014, undated, and 9 May 2017
·Report of orthopaedic surgeon, Mr Milos Kolarik, dated 27 February 2013
·Reports of the rheumatologist, Dr Tim Woodruff, dated 2 April 2014 and 28 July 2014
·Report of the physiotherapist, Ms Abbey Fraser, dated 11 June 2013
·Report of the physiotherapist, Ms Heather Dalman, dated 17 June 2014
·Report of the chiropractor, Ms Bridget Kelly, dated 9 July 2014
·Reports of the psychiatrist, Dr Praveen Thottappilil, dated 3 September 2014, 20 March 2015 and 20 May 2015
·Reports of the psychologist, Dr Sandra Lorensini, dated 20 February 2014 and 11 August 2014
·Medico-legal reports of the orthopaedic surgeon, Mr John O’Brien, dated 3 February 2015, 29 April 2015, 5 January 2016 and 19 January 2016
·Medico-legal reports of the psychiatrist, Dr Lester Walton, dated 11 March 2015, 21 April 2015, 6 May 2015, 4 November 2015 and 19 January 2017
·Report of the treating orthopaedic surgeon, Mr Paul Plank, dated 11 March 2017.
(All such documents are found at pages 26-92b PCB.)
Exhibit 3:
·Ultrasound of the left shoulder and x‑ray of the left shoulder dated 1 November 2013
·Ultrasound of the left shoulder injection dated 22 November 2013
·X‑ray of the chest dated 2 May 2014
·MRI of the cervical spine and left shoulder dated 23 May 2017
·MRI of the right shoulder dated 25 May 2017.
(All material found at pages 93-95D PCB.)
Exhibit 4:
·Report of the orthopaedic surgeon, Dr Anna Manolopoulos, dated 10 April 2017.
(Such report found at pages 96-104 PCB.)
2 The defendant tendered the following material:
Exhibit A
·Ultrasound dated 3 September 1999.
(Found at pages 16-17 of the Defendant’s Court Book (“DCB”).)
Exhibit B
·Centrelink treating doctor’s report dated 2 May 2000
·Report of the orthopaedic surgeon, Mr John Bourke, dated 18 August 2000
·Right shoulder ultrasound dated 11 November 2003
·Centrelink treating doctor’s report dated 10 December 2003
·Chronic disease management plan and team care arrangement dated 5 September 2011
·Letter of referral from Dr Mitric-Andjic to Dr English dated 29 October 2012
·Letter of referral from Dr Mitric-Andjic to Orthopaedic Outpatient Clinic dated 2 November 2012
·Letter of referral from Dr Mitric-Andjic to Mr Kolarik dated 14 December 2012
·Letter of referral from Dr Mitric-Andjic to Dr Woodruff dated 28 February 2014
·Chronic disease management plan dated 23 May 2014
·Report of Dr Megan Haysey dated 29 April 2015
·Chronic disease management plan dated 3 November 2015
·Report of Dr Racquel Cowan dated 5 April 2016
·Report of Mr Paul Plank dated 16 February 2017.
(Such material found at pages 18-60 DCB.)
Exhibit C
·Ballarat Group Practice clinical notes.
(Such notes found at pages 61-116 DCB.)
0
11
0