Szilagyi v Transport Accident Commission
[2013] VCC 1403
•10 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01328
| EVA SZILAGYI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and18 September 2013 | |
DATE OF JUDGMENT: | 10 October 2013 | |
CASE MAY BE CITED AS: | Szilagyi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1403 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – spinal injury – whether the consequences are “serious” – psychiatric injury – whether the consequences are “severe”
Legislation Cited: Transport Accident Act 1986, s93(4)(b)
Cases Cited: Petkovski v Galletti [1994] I VR 436
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with | Arnold Thomas & Becker |
| For the Defendant | Mr C Blanden SC with Mr S Martin | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 29 March 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 23 April 2008.
2 Mr R Gorton, Queen’s Counsel, appeared with Mr J Valiotis of Counsel for the plaintiff and Mr C Blanden, Senior Counsel, appeared with Mr S Martin of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under ss(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17) – serious long-term impairment or loss of a body function.
5 The injury suffered by the plaintiff for which leave is sought are – injuries to her lower back, and a psychiatric injury.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· Dr Constantine Jigau, general practitioner, gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 6-126, and from the Defendant’s Court Book (“DCB”) pages 21-30: Exhibit A;
· The report of Dr Lai, general practitioner, dated 20 December 2009: Exhibit B;
· The clinical notes of Dr Constantine Jigau and Dr Coralia Jigau commencing 15 October 1998: Exhibit 1;
· First page of a patient health summary: Exhibit 2;
· Clinical notes of the Narregate Clinic: Exhibit 3;
· The defendant tendered its Court Book, pages 1 14-20, 31-47 and 48: Exhibit 2.
The Plaintiff’s background
7 The plaintiff was born in May 1945. She is now sixty-seven years of age. She lives with her adult son. The plaintiff is Hungarian by nationality. She lived in Romania. She was fluent in both Hungarian and Romanian. Her language skills in those languages has slipped, for reasons I will refer to below.
8 Before the occurrence of the transport accident, the plaintiff was employed by Casey City Council as a home carer. She commenced that employment on 27 August 2007. She was contracted to work 12 hours per week. She often worked 15 hours per week. The tasks she performed were assisting elderly citizens in undertaking cleaning and general household chores. Before commencing employment with Casey City Council, she worked for the City of Glen Eira from 16 May 2005 to 25 August 2007. On average she worked about 25 hours per week.
The transport accident
9 On 23 April 2008, the plaintiff was driving her car along Olive Grove, Eumemmerring. She intended to turn right into a nursing home/retirement village. As she commenced the turn, her car was struck from behind.
10 An ambulance attended the scene of the transport accident. The plaintiff was attended to by ambulance officers. She was advised by them to go and consult her family doctor.
The issues
11 It became apparent that the plaintiff had experienced pain in her lower back prior to the occurrence of the transport accident. It also became apparent that the plaintiff had experienced a depressive illness prior to the occurrence of the transport accident.
12 The first issue which arose for my consideration was an identification of the lower back condition and psychiatric condition from which the plaintiff suffered before the occurrence of the transport accident.
13 The second issue was whether the plaintiff had suffered an aggravation of the pre-existing conditions which produced impairment consequences which satisfy the statutory tests.
14 There was a third issue of the plaintiff’s credit-worthiness and reliability. It was largely based upon the plaintiff’s alleged failure to be candid in disclosing the existence of, and the extent of, her prior lower back condition and psychiatric condition.
The prior lower back condition
15 I propose to summarise the evidence of the plaintiff’s prior lower back condition first. I then propose to summarise the plaintiff’s evidence of the lower back injury caused by the transport accident. I then propose to make the relevant comparison consistent with the process of reasoning I must undertake in accordance with Petkovski v Galletti.[1]
[1][1994] I VR 436
16 Mr Blanden referred the plaintiff to her first affidavit in which she deposed to the following:
“Before the transport accident my mental state was very good and my mood was good. I was very physically fit and active.”[2]
[2]PCB 8
17 Mr Blanden cross-examined the plaintiff that what she said in her affidavit was untrue. He firstly referred her to an x-ray which was taken of her lumbosacral spine on 9 September 2004. The plaintiff had consulted Dr Coralia Jigau, general practitioner, who referred her to have the x-ray. The radiologist reported the following:
“The disc spaces between L4 and L5 and L5 and S1 appear to be significantly reduced. Otherwise, no significant disc or bony abnormality was considered to be present.”[3]
[3]DCB 48
18 Some of the clinical notes of the medical practice conducted by Dr Constantine Jigau and Dr Coralia Jigau were tendered into evidence. I have looked at the entries in the clinical notes pre-dating 9 September 2004. The clinical notes are very difficult to read. My reading of them reveals that the plaintiff complained of suffering lower back pain as follows:
· 31 March 2004 – lower back – prescribed Vioxx and Panamax.
· 16 June 2004 – lower back – prescribed Brufen.
19 Dr Constantine Jigau was cross-examined by Mr Blanden relevant to the complaints of lower back pain made by the plaintiff in 2004 and the x-ray. It became clear that the notes are in the handwriting of Dr Coralia Jigau, who is his wife. There is no entry, as far as I can interpret the notes, of a review of the plaintiff by Dr Coralia Jigau following the taking of the x-ray. Nor are there any other entries between the date when the x-ray was taken and the date of the occurrence of the transport accident. So much was conceded by Mr Blanden.[4]
[4]Transcript 67
20 Dr Constantine Jigau conceded that the x-ray demonstrated abnormalities in the plaintiff’s lower back. However, I was left with the impression that the plaintiff did not experience any lower back pain which incapacitated her to any significant degree between about September 2004 and the date when the transport accident occurred.
21 I accept the plaintiff’s evidence that she worked for the City of Glen Eira from 16 May 2005 to 25 August 2007, and subsequently with the Casey City Council, as a home carer from about 27 August 2007 until the occurrence of the transport accident.
22 The real relevance of the plaintiff’s prior lower back injury became evident during Mr Blanden’s cross examination of Dr Jigau when he asked Dr Jigau to compare the abnormalities in the plaintiff’s lumbosacral spine on the x-ray with later CT and MRI scans. Mr Blanden suggested to Dr Jigau that the appearances on both the x-ray and scans demonstrate the very same abnormalities.[5] I will return to the importance of the comparison later.
[5]Transcript 51-52
The impairment of the lower back
23 The plaintiff swore two affidavits, one on 20 April 2011,[6] and another on 26 March 2013.[7] She described the impairment consequences which she alleges were caused by the transport accident as follows:
[6]PCB 6-13
[7]PCB 13a-13c
· Constant, but variable pain.
· Prescription of Mobic, Celebrex and Voltaren for pain relief. Also, Panadol Osteo used interchangeably with Voltaren. The latter are over-the-counter medications, whereas the former can only be obtained by prescription.
· An inability to walk for more than 15 to 20 minutes.
· An inability to work.
24 The plaintiff referred to a history which she gave to Mr Miller, orthopaedic surgeon, as being a full account of the impairment consequences which she has suffered since the occurrence of the transport accident.[8] She told Mr Miller the following:
[8]PCB 12
· She has lower back pain.
· She has pain radiating from her lower back into her buttocks and occasionally down into her legs. The pain is predominantly in her left leg going to the sole of her left foot with a vague feeling of numbness and tingling.
· She has suffered significant sleep disturbance.
· Her symptoms of pain fluctuate. There is no pattern suggesting improvement.
· She is unable to return to work.[9]
[9]PCB 41, 45, 49 and 53c
25 Mr Miller noted on the second occasion he examined the plaintiff on 22 March 2012, that the plaintiff reported that the symptoms she was experiencing in her lower back were “a little worse”.[10] On the last occasion he examined the plaintiff on 5 August 2013, he noted a slow pattern toward deterioration.[11]
[10]PCB 53c
[11]PCB 53e
26 The plaintiff's son, Laszlo Szilagyi, swore an affidavit on 25 February 2013.[12] He said:
[12]PCB 13e
· The plaintiff constantly complains of pain in her spine.
· The plaintiff uses anti-inflammatory and pain-relieving medication.
· Domestically, she is heavily dependent upon him.
27 In the course of an extensive re-examination conducted by Mr Gorton, the plaintiff expanded upon the impairment consequences she suffered:
· Prior to the transport accident, she attended a gym. She sometimes attends hydrotherapy classes for elderly people of her age.
· She was able to do all of her domestic duties in her home. Her son now does most of the cleaning and cooking.
· Her social life included going to a social club in Narre Warren.
· After the occurrence of the transport accident, she had a lot of pain in her lower back. It is now worse.
· She cannot work because she feels much weaker because of the injury to her lower back.
· She is affected by dreams of the transport accident. When she wakes because of such dreams, she is aware of her back hurting her.
· Her reduction in physical activities has occurred because she is in a lot of pain. Bending causes a lot of pain.[13]
[13]Transcript 36-40
The lower back medical evidence
28 The first medical practitioner the plaintiff saw after the transport accident was Dr Constantine Jigau. She first saw him on the day of the transport accident. He provided a number of short reports. The most comprehensive is his report dated 23 February 2013 in which he chronologically traces the treatment he provided to the plaintiff.
29 Dr Constantine Jigau referred the plaintiff to have a CT scan, which was taken on 26 November 2009.[14] According to the radiologist, it demonstrated the following:
“Mild canal stenosis at L4/5.
Multilevel facet joint degenerative changes.
Significant disc space narrowing at L4/5 and L5/S1.”[15]
[14]PCB 101
[15]PCB 101
30 Dr Constantine Jigau referred the plaintiff to have an MRI scan, which was taken on 17 April 2012. It is an extensive report. The radiologist’s conclusions were:
“Intervertebral degeneration as described. Central canal narrowing from L3-4 to L5-S1. There is compression of the budding left S1 nerve root but no further neural compression.”[16]
[16]PCB 106-107
31 Mr Blanden asked Dr Constantine Jigau to compare the abnormalities shown on the x-ray taken on 6 September 2004 and the appearances on the scans. Mr Blanden suggested that the abnormalities are the same. Dr Constantine Jigau acknowledged that the abnormalities are at the same levels.[17] However, during re-examination, Dr Constantine Jigau explained that there were in fact differences, and what they were, as follows:
[17]Transcript 52-53
Q:“… could you tell the court what the differences that you see which are apparent in the MRI, which are not shown in an X-ray?---
A:Okay. The level of L3-L4 there is mild broad-based disc bulge with mild central canal and the same lateral recess and neural exit foramen narrowing which - - -
Q:Does that appear in the X-ray?---
A:No.
Q:What about at the next two levels of L4-5, L5-S1?---
A:The next one is the same, we discussed this before, L4-L5 was on CT scan a mild disc bulge. There is mild canal narrowing. There is mild lateral recess stenosis which wasn't on the CT scan. ‘Contacting but not compressing both budding L5 nodes’.
Q:I’ll stop you there, doctor. With respect to that particular paragraph, at L4-5, ‘Contacting but not compressing both budding L5 nerve roots’. Is that consistent with any of the complaints that Ms Szilagyi has made?---
A:Yes, with the pain which we discussed before going into the leg which wasn’t before.
Q:And at L5-S1 if you could just read the first two lines of what that says?---
A:“There is a mild broad based disc bulge and left paracentral disc protrusion in the left lateral recess compressing with budding left S1 nerve’, this means is compressing the S1 nerve root.
Q:Is that consistent with her presentation to you over the past five years?---
A: Yes.
Q:Was that present prior to the transport accident of 23 April 2008?---
A:No it wasn’t before.
Q:Had she complained of this type of pain or disability prior to the transport accident and in your memory did she complain of any of this in 2004 when she complained of back pain?---
A:Only back pain before and this I was stating before, that before the pain wasn’t referred to the buttocks or to the legs because of this we didn't do CT or MRIs or anything.”[18]
[18]Transcript 68-69
32 In his report dated 23 February 2013, Dr Constantine Jigau referred to treating the plaintiff by referral to massage therapy, hydrotherapy and physiotherapy. He referred to prescribing her Mobic, Celebrex and Voltaren for pain relief. The foregoing treatment was for pain experienced by the plaintiff not only in her lower back, but also in her neck and left knee.[19]
[19]PCB 20c
33 Dr Jigau was of the opinion that the plaintiff was not fit to undertake her pre-injury employment because of the injury to her lower back.[20]
[20]Transcript 69
34 Dr Miller saw the plaintiff on 4 January 2011, 22 March 2012 and 5 August 2013. I have summarised the history of the plaintiff’s complaints recorded by Mr Miller above. In his first report, he expressed the following opinion:
“ She suffered a musculo-ligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine particularly at the lower lumbar level. She has had a poor response to conservative measures and it is unlikely that she will be assisted by surgical intervention. Prognosis for this is fair/poor.”[21]
[21]PCB 43
35 Essentially, his opinion was unchanged after he examined the plaintiff on two further occasions.[22] It should be noted, however, that in relation to the plaintiff’s complaints of pain in her left leg, that he did not consider that there was any evidence of radiculopathy or neurological deficit.
[22]PCB 51 and 53e
36 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 31 January 2012. He was subsequently provided with the scans. He provided three reports. His first report dated 28 February 2012 was composed after he examined the plaintiff on 31 January 2012. His subsequent reports dated 23 May 2012 and 13 March 2013 were composed after he viewed the scans. In the end he considered that the plaintiff had suffered a lumbosacral disc prolapse which was responsible for her inability to stand up straight; bend freely; the restriction on straight leg raising, and the reduction in both ankle jerks. He then expressed a similar opinion to Mr Miller:
“ In conclusion therefore, it is my opinion that as a result of the motor vehicle accident on 23 April 2008, your client has suffered aggravation of degenerative changes in her neck and lumbar spine … .”[23]
[23]PCB 68b-68c
37 Where Mr Miller and Mr Schofield differ is that Mr Schofield considered that the plaintiff’s examination results pointed to neurological signs of radiculopathy.[24] He considered that the plaintiff was a likely candidate for surgery to decompress and stabilise the lumbosacral disc. He considered that she was unfit for work as a cleaner.[25]
[24]PCB 60
[25]PCB 68b
38 Dr Baker, occupational physician, examined the plaintiff for the defendant on 15 July 2008. He considered that the plaintiff’s injuries were relatively minor, and that her presentation to him was rather more psychological in nature. He considered that she had a greater capacity for work than she admitted to.[26]
[26]DCB 18-19
39 Mr Fogarty, orthopaedic surgeon, examined the plaintiff on 21 July 2010 and 22 February 2012. On the first occasion he examined the plaintiff, he considered that she had suffered soft-tissue injuries to her lower back which almost certainly aggravated degenerative disc disease in her lower lumbar and lumbosacral spine. He noted that she was suffering from significant depression. His report is of limited use because it was directed to an impairment assessment under the Guides to the Evaluation of Permanent Impairment of the American Medical Association. However, he made additional comment that her work and home activities had been significantly affected by her injuries.[27]
[27]PCB 24-25
40 On the second occasion he examined the plaintiff, Mr Fogarty repeated his opinion relevant to the plaintiff's lower back injury. He considered that there was evidence of illness behaviour on the part of the plaintiff during his examination of her on that occasion, but he did not explain what he meant by that.[28]
[28]PCB 28
Findings/lower back
41 I am not persuaded that there is any merit in the submission that the lower back condition which troubled the plaintiff in 2004 is of any relevance to whether the impairment consequences of the lower back injury are “serious”.
42 I do not accept that the x-ray taken in 2004 has the same appearance as the scans taken after the occurrence of the transport accident. When Dr Constantine Jigau was taken to an MRI scan that was taken after the occurrence of the transport accident, he demonstrated where there is an obvious difference in what it shows when compared to the earlier x-ray.
43 The preponderance of the medical opinions is that the plaintiff suffered an injury to her lower back. It is likely that it was an aggravation of degenerative changes in her lower back, producing pain radiating from her lower back into her buttocks and her left leg. That is consistent with the opinions of Dr Constantine Jigau, Mr Miller, Mr Schofield and Mr Fogarty. It is also consistent with the opinion of Mr Baker. However, I reject Mr Baker’s opinion that the gravity of the aggravation is modest. In any event, Mr Baker’s opinion is stale, because it has been overtaken by two things – the scans, and the opinions of Mr Miller, Mr Schofield and Mr Fogarty, who are orthopaedic surgeons and whose expertise is very particular in its focus on musculoskeletal disorders.
44 Mr Gorton submitted that the attack made upon the plaintiff was rather more directed to the injury suffered by the plaintiff to her lower back rather than to the impairment consequences. I think that is right. There was no serious challenge to the plaintiff’s evidence that she has suffered the impairment consequences which I have summarised above.
45 The conclusion I have reached is that the plaintiff now has constant pain; and interference in her capacity to undertake domestic, social and recreational pursuits; interference with her sleep; the necessity to take painkilling medication, and no longer being able to work. The medical opinions which I prefer support the conclusion I have reached, that the injuries do interfere with those activities and to the extent contended for by the plaintiff.
46 It appears to me that the aggravation has had a dramatic effect upon the plaintiff's life overall. There are very few features of her life as it was before the transport accident which have not been seriously affected by the impairment consequences of the injury to her lower back. In those circumstances, I have little difficulty in concluding that the impairment consequences of the injury to the plaintiff’s lower back are “serious”.
The prior psychiatric condition
47 There is no doubt that the plaintiff was suffering from a depressive illness before the occurrence of the transport accident. Mr Blanden referred to the many entries in the clinical notes of Dr Constantine Jigau and Dr Coralia Jigau, which demonstrate that to be the case.
48 Mr Blanden’s submission, in the end, was that a comparison between what the plaintiff was like before the occurrence of the transport accident and what she is like now is difficult to estimate. Furthermore, even if she suffered an aggravation of the pre-existing psychiatric condition, the aggravation does not satisfy the statutory test.
49 The starting point is to return to the plaintiff's first affidavit, and her estimate of her state of health prior to the occurrence of the transport accident. I think it is more relevant to the plaintiff's credit-worthiness and reliability in relation to her psychiatric injury, than it is in relation to her lower back injury.
50 My reason for reaching that preliminary conclusion is because the plaintiff saw Dr Constantine Jigau on 23 April 2008, the very day when the transport accident occurred, and he recorded the following:
“Depression
Anxiety depression … .”[29]
[29]Exhibit 1
51 Mr Blanden cross-examined Dr Constantine Jigau that it would be very unlikely that the diagnosis of depression and anxiety depression could be made on the day when the transport accident occurred. He agreed.[30]
[30]Transcript 48
52 An examination of the clinical notes of Dr Constantine Jigau and Dr Coralia Jigau demonstrate that the plaintiff had complained of depression for a very considerable period of time prior to the occurrence of the transport accident. The clinical notes reveal:
· 23 April 2008 – Depression – prescription of Lovan
· 17 January 2008 – Depression – Normison (a treatment for insomnia)
· 11 December 2007 – Depression
· 23 October 2007 – Depression
· 1 November 2006 – Depression – “stopped Zoloft” (a treatment for Depression)
· 25 October 2006 – “stopped Zoloft”
· 7 September 2006 – Depression
· 28 April 2006 – Anxiety
· 30 November 2005 – Depression
· 13 October 2005 – Depression
· 21 September 2005 – Depression
· 13 September 2005 – Depression
· 8 June 2005 – Anxiety
· 20 April 2005 – “Major Depression” – Cipramil (a treatment for Depression)
· 9 December 2004 – “Major Depression”
· 6 December 2004 – “Major Depression” – Zoloft
· 13 October 2004 – Depression – Zoloft
· 6 October 2004 – Anxiety and Depression
· 29 September 2004 – Depression
· 6 September 2004 – Anxiety and Depression
· 30 August 2004 – Major Depression – Zoloft
· 28 July 2004 – Anxiety and Depression – Zoloft
· 30 June 2004 – Anxiety and Depression
· 16 June 2004 – Anxiety and Depression – Zoloft
· 28 April 2004 – Depression – Luvox (a treatment for Depression)[31]
[31]The notes are very difficult to read. There appear to be other entries referring to something which looks like “Fluvox”, but I am not sure whether that is correct or not
· 7 April 2004 – Depression – Lovan
· 25 February 2004 – Depression – Zoloft
53 The plaintiff also attended another clinic known as the Narregate Clinic. She saw Dr Lai. The clinical notes of the Narregate Clinic were tendered into evidence.[32] The clinical notes demonstrate that the plaintiff first attended the clinic on 14 April 2007. The clinical notes reveal:
[32]Exhibit 3
· 14 April 2007 – depression - "was on Zoloft for 6 years, ceased 2006".
· 18 April 2007 - three weeks of tiredness.
· 28 April 2007 - tiredness associated with work - driving difficult causing stress.
· 2 May 2007 – depression - trouble with energy - troublesome clients.
· 12 May 2007 - totally worn out - trouble with travelling to work.
· 9 August 2007 – insomnia - not feeling like going to work.
· 24 January 2008 - stress at work
· 28 February 2008 - not sleeping well; emotionally labile; crying easily, and very tired.
54 Mr Blanden cross-examined the plaintiff about her psychiatric condition before the occurrence of the transport accident. The plaintiff said that before the transport accident, she was very nervy. She had been prescribed Lovan. She was taking one tablet per day. She was advised by Dr Constantine Jigau or Dr Coralia Jigau to take antidepressants when she needed to. She did not take them all of the time.[33]
[33]Transcript 18-19, and generally 20-23
55 It would appear that the plaintiff was severely traumatised by a matrimonial breakup which occurred in about 2000. Her husband threatened to kill her. The police were involved. She went into a refuge. She subsequently worked in the refuge helping out and doing cooking. She then worked for an elderly gentleman, presumably as a carer. She then worked at a café known as Yumi’s, before commencing employment with the City of Glen Eira and later, with the Casey City Council.[34]
[34]Transcript 34-36
The psychiatric impairment
56 In the two affidavits sworn by the plaintiff, she described the impairment consequences which she alleges were caused by the transport accident as follows:
· She suffered shock, Depression and Anxiety
· She cannot get to sleep without taking Normison
· She cries frequently
· She has nightmares about the transport accident. When she wakes she feels anxious and upset. She does not feel well in the mornings
· She will lie down or go back to bed for another two hours or so
· When she is upset she suffers heart palpitations
· She ruminates over what her life would have been if the transport accident had not occurred
· Her facility and fluency with the Hungarian and Romanian languages is slipping
· Her memory is slipping
· She is hypervigilant and always cautious
· She has lost self-esteem and confidence
· She suffers panic attacks and high levels of anxiety
· Her capacity to engage in social, recreational and domestic activities has been reduced
· Her drivers licence has been taken from her.
57 Her son, Laszlo, said:
· The plaintiff takes anti-depressant medication
· Her sleep is often disturbed
· She is lethargic during the day and rests frequently
· She is a bad passenger in a car and is fearful of car travel
· She complains of having flashbacks to the transport accident.
The psychiatric medical evidence
58 Mr Blanden cross-examined Dr Constantine Jigau regarding the plaintiff’s prior psychiatric condition. He referred to the patient health summary which summarises the medication which the plaintiff is currently taking. Among other medication, she takes three Lovan daily. She is now taking one extra Lovan tablet per day. She is now taking one extra Normison tablet per day.[35]
[35]Transcript 63
59 Dr Constantine Jigau considered that it is the plaintiff’s psychiatric injury which is her major problem. In re-examination, he was asked to make a comparison between the plaintiff’s psychiatric condition before the transport accident and after it occurred. He said:
Q:“You were put through a cross-examination from Mr Blanden over here with respect to her psychological condition. Would you describe her psychological condition as she has presented to you over the past five years as the same, better or worse from what you recall?---
A:We discussed that it’s much worse because she didn’t have before memory problems, she didn’t have problems – concentration problem with her English, even Romanian which showed aggravation of her.”[36]
[36]Transcript 69
60 The plaintiff referred to her difficulty in coping with her facility with the Hungarian and Romanian languages. That was made all the more stark and apparent through the evidence of Dr Constantine Jigau. He said they are markers of the plaintiff’s psychiatric injury which demonstrated her loss of memory.
61 The plaintiff was referred to Dr Ibrahim, psychiatrist. In a very short letter to Dr Constantine Jigau dated 10 January 2009, he considered that the plaintiff was suffering from symptoms of Post-Traumatic Stress Disorder; recollection of the accident; hypervigilance; avoidance behaviour, and considerable depressive symptoms.[37]
[37]PCB 15
62 The plaintiff has been treated by Ms Micsunescu. The plaintiff first saw her in May 2009. Ms Micsunescu provided three reports, dated 28 January 2010,[38] 24 August 2011[39] and 11 November 2011.[40] In summary, she was of the opinion that the plaintiff was suffering from a Post-Traumatic Stress Disorder, Depression and Anxiety. She has treated the plaintiff for a long time, and in her recent report, she considered that the plaintiff would need treatment every two weeks over the next two to three years. Interestingly, at the end of her last report, she referred to the fact that she knew the plaintiff before the transport accident occurred. She said that the plaintiff was a Romanian teacher before she arrived in Australia. She has observed a reduction in the plaintiff’s facility with languages. She considered the plaintiff possessed high language skills before the transport accident occurred.
[38]PCB 21-25
[39]PCB 26
[40]PCB 27
63 Dr Epstein, psychiatrist, examined the plaintiff on 7 February 2012, 29 March 2012 and 9 July 2013. He provided two reports, dated 29 March 2012[41] and 15 July 2013.[42] Dr Weissman, psychiatrist, examined the plaintiff on 7 February 2011, 27 February 2012 and 25 June 2013. He provided several medical reports. His three substantial reports are dated 7 February 2011,[43] 27 February 2012[44] and 25 June 2013.[45] Both Dr Epstein and Dr Weissman appear to have obtained an adequate history of the plaintiff’s prior psychiatric condition, but not as detailed as is contained in the clinical notes I have summarised.
[41]PCB 28-38
[42]PCB 38a-38h
[43]PCB 69-79
[44]PCB 90-100
[45]PCB 100a-100m
64 The reports of Dr Epstein and Dr Weissman are very detailed. Dr Epstein considered that the plaintiff was suffering from a Chronic Pain Disorder with both psychological factors and a medical condition, and symptoms of a mild Post-Traumatic Stress Disorder. He considered her prognosis to be poor.[46] Dr Weissman considered that the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood. He considered those conditions were of moderate intensity or severity. He also considered that she was suffering from a chronic Post-Traumatic Stress Disorder of mild to moderate intensity or severity. It would appear that he considered that the plaintiff’s prospects of improvement were small.[47] Both considered that the plaintiff is incapacitated for work.
[46]PCB 38f-38g
[47]PCB 100k-100l
Findings
65 The clinical notes I have reviewed leave me in no doubt that the plaintiff suffered from a level of anxiety and depression for a significant period of time which required the prescription of anti-depressant medication. So significant was her psychiatric condition that it was in evidence on 23 April 2008 when she first saw Dr Constantine Jigau immediately after the occurrence of the transport accident.
66 Mr Gorton submitted that there is a contrast between what the plaintiff was like before the transport accident occurred and what she was like after it occurred. Essentially, the plaintiff was able to work and to function at a reasonable level domestically, socially and recreationally. She was in receipt of prescriptions for medication; however, after the transport accident occurred, the medication increased. Not only did the medication increase, but so did the plaintiff’s need for medical treatment. She was referred to a psychiatrist, and a psychologist. She is presently under the care of Ms Micsunescu, who considers that the plaintiff needs continuing treatment for a considerable period of time into the future. Neither Dr Epstein nor Dr Weissman suggests that the plaintiff does not need that level of treatment.
67 It appears to me that the change suffered by the plaintiff has been dramatic. I think her capacity to work and function is a marker of the degree of interference which the psychiatric condition has had upon her after the occurrence of the transport accident.
68 The plaintiff's position now is dramatically different. She is not working. It is unlikely she will ever be able to work. She now requires medical treatment and psychological counselling. She needs an increase in her medication. Essentially, she is functioning at a very low level, not being able to engage in domestic, social and recreational activities. That is confirmed by the evidence of her son. Furthermore, she has suffered a loss of memory and loss of facility with the Hungarian and Romanian languages in the context of her former life as a teacher in Romania. That is confirmed by the evidence of Ms Micsunescu.
69 It appears to me that the evidence relevant to the plaintiff’s psychiatric injury permits me to identify the impairment consequences arising from the psychiatric injury as opposed to the impairment consequences arising from the physical injury.
70 The evidence satisfies me that the impairment consequences referred to above arise from the psychiatric injury, and are, of themselves, severe. More particularly, it would appear that even if the plaintiff had only suffered the psychiatric injury, the impairment consequences are of such severity that they would prevent the plaintiff from undertaking her pre-injury employment. Otherwise, the plaintiff’s symptoms are now constant. She requires additional medication in an attempt to control her symptoms. Her intellectual capacity is much reduced, and her emotional state is parlous.
71 I am not satisfied that the cause of the plaintiff's past psychiatric state is the reason for the position the plaintiff finds herself in now. It would appear that that was rather more associated with an unhappy and potentially violent marriage and the aftermath of its breakdown. Once the plaintiff appears to have moved on, she was able to work and function quite well. The impairment consequences of the psychiatric injury now reduce the plaintiff to a relatively basic level of emotional functioning. I think the impairment consequences in terms of pain and suffering and pecuniary disadvantage linked to the psychiatric injury deserve the description “severe”.
72 Mr Blanden submitted that the plaintiff’s prior psychiatric condition means that the plaintiff must demonstrate that she has suffered an aggravation of that prior psychiatric condition and that for the impairment consequences to be “severe” she must satisfy the test in Petkovski. I agree. I have undertaken an analysis of the impairment consequences of the plaintiff’s prior psychiatric condition, and the extent that it was aggravated by the transport accident. I am satisfied, based on the above analysis, that the aggravation is, of itself, productive of impairment consequences which are “severe”.
Orders
73 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
74 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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