Tartaglia v Transport Accident Commission
[2013] VCC 385
•11 April 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-11-05689
| GIUSEPPE TARTAGLIA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 15 March 2013 | |
DATE OF JUDGMENT: | 11 April 2013 | |
CASE MAY BE CITED AS: | Tartaglia v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 385 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – consequences of injury – whether the consequences of the plaintiff’s physical or non-physical injuries were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable”.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave to the plaintiff to commence a proceeding claiming damages in respect of injuries suffered by him in a transport accident on or about 28 January 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Horner | Ellis Palmos & Co |
| For the Defendant | Mr M Titsall QC with Mr P Gates | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 On or about 28 January 2007, Giuseppe Tartaglia was the driver of a motor vehicle involved in a transport accident near Harston in Country Victoria (“the accident”). He alleges that as a consequence of that collision, he has suffered physical and non-physical injuries. He seeks the leave of this Court to issue a proceeding to recover damages in respect of those injuries.
2 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Tartaglia must satisfy the Court that he has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
3 The term “serious injury” is defined in s93(17) of the Act (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 Mr Tartaglia alleges that he has suffered injuries that satisfy both of those categories.
5 In order to succeed in his application in respect of his physical injury, Mr Tartaglia must satisfy the Court that the consequences of his injury are long term and “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with cases in the range of possible impairments or losses, can be fairly described as being at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
6 In order to succeed in his application in respect of his non-physical injury, Mr Tartaglia must satisfy the Court that the consequences of his injury are long term and “severe”. The term “severe” is of stronger force that the term “serious”.[3]
[3]Mobilio v Balliotis & Ors [1983] 3 VR 833 at 846
7 In this matter, Mr Tartaglia alleges that he has suffered a serious long-term impairment or loss of function of his low back and also, that he has suffered a severe long‑term mental or severe long-term behavioural disturbance or disorder as a consequence of the accident.
8 Mr Tartaglia alleges that the consequences of both his physical and non-physical injuries satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so. These are the issues which fall to be determined.
Background
9 Mr Tartaglia is aged fifty-seven. He was educated up to Year 10. Since leaving school, he has worked at a number of jobs including driving a truck, working in a restaurant and working in the catering section of Qantas Airlines.
10 For approximately three years before the accident, he was self-employed performing domestic maintenance work on a full-time basis. The work consisted of such tasks as plastering, painting and general home maintenance. The work was physical in nature and required him regularly to bend, twist, tilt, crouch, squat and kneel. It also involved a degree of heavy lifting and the ability to perform overhead work.
11 The accident was a relatively severe one, involving another motor vehicle colliding with the passenger side of Mr Tartaglia’s vehicle.
12 Seated in the car with him at the time of the accident were his wife, and their daughter and son.
Aftermath of the collision
13 Immediately following the collision, Mr Tartaglia experienced pain, particularly in his chest and left leg. He immediately observed the condition of his wife and children. It appeared to him that they were severely injured and that they may have had life threatening injuries.
14 Mr Tartaglia and his family were transported to the Goulburn Valley Hospital by ambulance. It appears that he was discharged from hospital three days later. His family remained in hospital for some time.
15 Within three or four days of the accident, Mr Tartaglia consulted the Gladstone Street Clinic (“the clinic”). There, Dr Julian Pienkos and Dr Anna Pienkos had been his general practitioners for some years.
16 The general practitioners’ clinical notes relating to Mr Tartaglia were tendered as part of Exhibit 1. They indicate that Mr Tartaglia attended at the clinic on the following dates and that the general practitioner who saw him had noted the following complaints:
(a)1 February 2007 (four days after the accident) – soft-tissue injury to the left thigh and chest – Panadeine Forte tablets prescribed.
(b)14 February 2007 – soft-tissue injury, left thigh and chest – Panadeine Forte tablets prescribed.
(c)7 March 2007 – bruising and muscular strain of chest and left thigh – Panadeine Forte tablets prescribed – medical certificate supplied.[4]
[4]Defendant’s Court Book (“DCB”) 36.1
(d)30 March 2007 – soft-tissue injury to left thigh and chest – still unable to return to work due to chronic left lower rib pain – medical certificate supplied.[5]
[5]DCB 54
(e)Certification that Mr Tartaglia was unable to work “due to family illness” from 28 April 2007 until 28 May 2007.
(f)16 May 2007 – seen in relation to diabetes pathology tests.
(g)24 May 2007 – seen in relation to his diabetic condition.
(h)13 July 2007 – seen in relation to “back pain” – “duration of symptoms: 2 weeks” – “presenting problems: low back pain no sciatica” – Mobic prescribed.
(i)24 August 2007 – prescribed Mobic.
(j)30 August 2007 – seen in relation to his diabetes.
(k)23 October 2007 – seen in relation to a soft-tissue injury to his left thigh and chest – Mobic prescribed.
(l)1 November 2007 – seen in relation to chronic left rib pain and soft-tissue injury to the left thigh – certificate provided.[6]
(m)7 November 2007 – certificate provided in relation to soft-tissue injury to the left thigh and Post-Traumatic Stress Disorder – refer for physiotherapy and psychologist for counselling.
(n)9 November 2007 – seen for Post-Traumatic Stress Disorder, increasingly anxious and stressed by carer’s role and chronic pain – referred for physiotherapy.
(o)21 November 2007 – has started swimming – counselling.
[6]DCB 52
17 It can be seen from the above that following the accident, Mr Tartaglia made no immediate complaint of any back pain. The first reference of such to his general practitioner was on 13 July 2007, about five-and-a-half months after the accident.
18 On 9 November 2007, the general practitioner noted “chronic pain” but did not indicate where that pain was located.
19 The general practitioner’s next note of back pain was on 16 June 2008. In between, Mr Tartaglia had attended upon the general practitioner on six previous occasions earlier in 2008. The general practitioner made no note of any back pain on those visits.
20 On 14 January 2008, the defendant arranged for Mr Tartaglia to be examined by Mr David Elder, whose report was tendered as part of Exhibit 1.[7] On that date, Mr Tartaglia provided to Dr Elder a history that he had ongoing symptoms of low-back pain radiating both into the coccyx and down to the left buttock, with some occasional cramping in the posterior aspect of the left thigh, but without radicular symptoms. At that time, Mr Tartaglia was noted to be walking with a limp, although no cause was noted.
[7]DCB 5
21 In summary, Mr Tartaglia’s initial complaints were of left thigh and chest injuries. He was diagnosed with fractured ribs. There was no complaint of any back pain until about six months after the accident. He made no further complaint of back pain to his general practitioner for another six months, although he had referred to ongoing low-back pain in January 2008 to Dr Elder.
22 In due course, Mr Tartaglia also made complaints of significant left shoulder pain. He was referred to Mr Bernard Lynch for specialist opinion and in March 2011, underwent surgery to the left shoulder, which resulted in considerable improvement. The left shoulder injury is not the subject of this application.
23 In respect of his low back, Mr Tartaglia was referred for x-rays in August 2009 and CT scans in November 2009, October 2011 and March 2013.
24 In March 2010, Mr Tartaglia was referred by his general practitioner to Mr David de la Harpe, orthopaedic surgeon, in respect of his low back. It appears that he only saw Mr de la Harpe on the one occasion. Surgery has not proposed in respect of the low back at any time.
25 Mr Tartaglia alleges that he continues to suffer from ongoing pain and restriction in movement in relation to his low back, which is aggravated by activities such as bending, twisting, crouching, squatting, kneeling and prolonged sitting or standing.
26 In May 2008, Mr Tartaglia was referred to a counsellor, Mr Ryan. He saw him on one or two occasions, in respect of what the general practitioner described as “ongoing distress post MCA”.[8]
[8]DCB 75
27 In July 2008, Dr Anna Pienkos noted that Mr Tartaglia was “barely coping with stress”.[9] She referred to a plan for future counselling.
[9]DCB 75
28 In August 2009, Mr Tartaglia was referred to Dr Linda Maree, a psychologist, for further counselling. Since that time, she has seen him on some twenty-nine occasions.
29 Mr Tartaglia has never returned to work since the accident.
30 Following the accident, Mr Tartaglia’s wife remained in hospital until about May 2009. She suffered extensive injuries. Since her discharge from hospital, Mr Tartaglia has acted as her carer. He applied for and was granted a carer’s pension which he still receives. He does not claim that he is unable to work at all; in fact, he performs numerous duties in and around the family home, both in physically caring for his wife and in performing many household duties. After his wife returned home, she was wheelchair bound for some eight months and needed extensive physical assistance. She no longer requires a wheelchair but still needs care and support. This is provided by Mr Tartaglia. Each year, Centrelink conducts a review of his wife’s condition and, to date, it has determined that she still requires a carer. Mr Tartaglia considers that her condition has gradually improved since her discharge from hospital.
31 Mr Tartaglia’s daughter, who was injured in the accident, is nearing completion of legal studies and appears to have made good recovery from injuries suffered by her. Mr Tartaglia’s son, who was also injured in the accident, is in full-time employment and appears to have made a good recovery.
32 In 2010, Mr Tartaglia climbed a ladder in order to clean cobwebs and fell to the ground, fracturing his left wrist and left clavicle. It is not claimed that he suffered any further injury to his low back as a consequence of that fall.
33 In a note dated 5 March 2013, Dr Julian Pienkos states that Mr Tartaglia’s back pain had an onset of 28 January 2007 and that his Post-Traumatic Stress Disorder had an onset of 7 August 2009. As at March 2013, Mr Tartaglia was still being prescribed Mobic (a non-steroidal anti-inflammatory medication); Panadeine Forte (analgesia); Pariet (as I understand it, prescribed for gastric issues often associated with other medication), and Pristiq (anti-depressant medication).
Diagnosis and Consequences of Injuries
Low-back injury
34 Mr Tartaglia underwent x-rays in August 2009 and CT scans of his low back in November 2009, October 2011 and March 2013.
35 The August 2009 x‑ray was not reported as showing any significant abnormality.[10]
[10]PCB 17
36 The CT scan of November 2009 was reported as showing:
(a)mild to moderate L4-5 lumbar canal stenosis secondary to a central L4-5 disc prolapse. The radiologist queried whether there was bilateral L5 nerve root impingement and recommended an MRI scan of the lumbar spine;
(b)mid L5-S1 lumbar canal stenosis secondary to a central L5-S1 disc prolapse;
(c)moderate to marked bilateral L5-S1 facet joint osteoarthritis. The radiologist suggested a CT-guided facet joint steroid injection might be of therapeutic benefit.[11]
[11]PCB 19
37 The CT scan of October 2011 was reported as showing posterior disc bulging at L3-4 and L4-5 but without significant thecal compression or central canal stenosis at either level and minor right-sided L4-5 face joint osteoarthritis at L5‑S1. No disc protrusion or thecal or nerve root compression was demonstrated. Mild facet joint osteoarthritis was detected on the right side. In conclusion, the radiologist reported no disc protrusion or significant thecal or nerve root compression was demonstrated. There was disc bulging at L3-4 and L4-5 and facet joint osteoarthritis at L4-5 and L5-S1.[12]
[12]PCB 20
38 The CT scan of March 2013 was reported as showing diffuse bulging at L2‑L3, L3-L4, L4-L5 and L5-S1, a posterior and right foraminal disc protrusion resulting in mild narrowing of the right neural foramina. The radiologist reported mild lumbar spondylosis with disc bulges at the L2-3 to L5-S1 levels, resulting in mild narrowing of the bilateral neural foramina at the L3-4 and L4‑5 levels.[13]
[13]PCB 21
39 Despite the recommendation for an MRI scan made by the radiologist in November 2009, it appears that no such scan has ever been performed.
40 The evidence of Mr Tartaglia’s general practitioners was scant and of little assistance to his application.
41 In January 2008, Dr Elder examined Mr Tartaglia at the request of the defendant. He took a history of ongoing low-back/left buttock symptoms since the accident. Senior Counsel for the defendant submits that this is inconsistent with the histories taken by the general practitioners. Nevertheless, Dr Elder opined that Mr Tartaglia, at that time, had significant low-back and left hip dysfunction which needed investigation and that the first step would be an MRI scan. This was never done. At the time, Dr Elder considered that Mr Tartaglia had no work capacity for his pre-injury employment. He has not examined Mr Tartaglia since.
42 Mr de la Harpe’s letter of 1 March 2010[14] is of minimal assistance. He apparently saw Mr Tartaglia on one occasion only. On that occasion, he reported an extremely guarded gait, reduced range of back movement, and no neurological abnormality in the lower limbs. He thought the CT scan of 2009 showed only degenerative change normal for his age. He considered that there was no surgery required. He recommended a continuation of physiotherapy and gym work. He made no reference to diagnosis of injury.
[14]DCB 74.1
43 Mr Kudelka, orthopaedic surgeon, saw Mr Tartaglia in May 2010 and December 2012 at the request of his solicitors. He considered that Mr Tartaglia’s back injury was a mechanical one – an aggravation of pre-existing degenerative change. He accepted that prior to the accident, his back had been asymptomatic.
44 In May 2010, Mr Kudelka took a history from Mr Tartaglia of persisting low-back pain and left shoulder pain. He reported as follows:
“[On] the basis of history, physical examination and radiology, I believe this patient sustained a soft tissue injury to the cervical spine, aggravated pre-existing degenerative changes in the rotator cuff muscle of the left shoulder, and aggravated previous age-related degenerative changes in the lumbar spine, and a new injury of fractured ribs in the left chest.
…
At the age of 54, it is unlikely that the patient’s shoulder or back symptoms will improve completely, but a period of time three years after the accident, I would consider that only his left shoulder persisting symptoms can be considered as having a significant contribution from the accident.
…
I think the restriction of movement in the neck and back were probably a temporary aggravation due to the accident and the situation now is essentially constitutionally related.
…
Physiotherapy treatment for his back and left shoulder should continue.
…
From the orthopaedic point of view I think the patient will be restricted in his ability to resume work as a Renovator, with respect to his back and left shoulder symptoms. As he is now 54 years of age and somewhat overweight, the effect of the accident will lead to a restriction in his ability to carry out this work, which is apparently now being carried on by his adult sons.
…
I would anticipate that social, domestic and recreational activities will also be reduced by the effect of the accident.”
(My emphasis).
45 In his second report of December 2012, Mr Kudelka noted that Mr Tartaglia complained of pain in the lower lumbar and right sacroiliac regions and down the posterior aspect of the right thigh. Movements were restricted by about half. Straight leg raising was free.
46 In his second report, Mr Kudelka opined that Mr Tartaglia had three permanent accident-related impairments: firstly, concerning the cervical spine; secondly, what he described as “aggravated pre-existing changes in the lumbosacral spine which have not fully resolved following the accident in 2007, despite adequate prolonged conservative treatment”;[15] thirdly, he had pain, weakness and restricted movement of the left shoulder. Mr Kudelka stated:
“As a result of these injuries the patient has been unable to continue his previous work as a self-employed painter and Renovator … .”[16]
[15]PCB 47
[16]PCB 47
47 He did not attempt to deal with the consequences of each of those injuries individually.
48 Mr Kudelka did not consider that Mr Tartaglia had suffered a disc prolapse.[17] This view appears to be consistent with that of Mr de la Harpe.
[17]Transcript (“T”) 147-148
49 Senior Counsel for the defendant cross-examined Mr Kudelka at length concerning what he suggested were inconsistencies between his first and second reports. Mr Kudelka declined to acknowledge any such inconsistency. He stated that the use of the term “temporary” in his earlier report was an expression merely indicating that he did not believe that Mr Tartaglia required surgery to his low back.[18]
[18]T137-139
50 Having observed Mr Kudelka in the witness box, I was unimpressed with his evidence in this regard. His statements in his first report made it clear that as at May 2010, he did not consider ongoing back problems had been significantly contributed to by the accident. He considered that there had been a temporary aggravation of his pre-existing back condition as a consequence of the accident and that, by that time, his back problems were constitutional. Mr Kudelka’s attempts to deny what I consider were the plain meaning of his words did him little credit.
51 In July 2010, Mr Shannon examined Mr Tartaglia at the request of the defendant. He found a restricted range of movement of the lumbar spine. He had noted that the earliest complaint of back pain was in July of 2007, about six months after the accident. He considered that Mr Tartaglia had suffered soft-tissue injury to his lumbar spine and that the prognosis was uncertain. He considered the treatment for the back should remain conservative.
52 I am satisfied that, in the accident, Mr Tartaglia suffered an injury to his low back – namely an aggravation of pre-existing and previously asymptomatic degenerative changes.
Consequences of low-back injury
53 Mr Tartaglia submitted that the consequences of his injury were:
(a) continued pain in his low back;
(b) a need for continued analgesic and anti-inflammatory medication;
(c) an inability to play social soccer with his son;
(d) an inability to return to physically demanding work – that is, “a light work back” in the case of a fifty-seven-year-old man with limited education and limited prospects for re-training.
54 Dr Elder and Mr Shannon have not seen Mr Tartaglia for more than five years and two-and-a-half years respectively. Accordingly, in assessing the current state of the injury to Mr Tartaglia’s low back and the consequences of it, I find such reports of limited assistance.
55 Likewise, the letters of Dr Anna Pienkos, Dr Julian Pienkos and Mr de la Harpe provide little assistance. The absence of a report from either of his general practitioners, dealing with the extent of symptoms and consequences of the injury is significant.
56 Likewise, there is no report from Mr de la Harpe, the one specialist to whom he was referred in relation to his back, dealing with Mr Tartaglia’s opinion as to his diagnosis of injury, the level of symptoms, treatment which might assist, or his prognosis for the injury.
57 From a medical perspective, Mr Tartaglia relies to a large degree on the evidence of Mr Kudelka, which, as I have pointed out, contains significant inconsistencies.
58 In addition, there is Mr Tartaglia’s own evidence that he continues to suffer from low-back pain some six years after the accident and is still being prescribed Mobic and Panadeine Forte. Whereas earlier it might have been arguable that such medication had been prescribed as much for his neck or left shoulder as his low back, I do not consider this is likely to be the case now. The left shoulder surgery of 2011 has resulted in a significant reduction of pain and, despite confirming evidence from his general practitioners, I think it is likely that his current medication is largely, if not entirely, related his low-back symptoms.
59 On the basis of the limited evidence before me, I am unable to be satisfied that the consequences of Mr Tartaglia’s low-back injury could fairly be described as more than significant or marked and as being at least very considerable.
60 I accept that he experiences some low-back pain. I am not satisfied that he has no work capacity on account of it. I consider that the primary reason for his not working since 2007 is that he has elected to act as a carer for his wife. No criticism can be made of him for making this election. But for his wife’s injuries, I consider it likely that Mr Tartaglia would be more motivated to seek a return to the workforce and would, on physical grounds, be capable of working, perhaps in a lighter capacity than his pre-injury occupation. I do not consider that he has established that his level of pain is such that it is more than significant or marked. I am not satisfied that his ceasing to occasionally kick a soccer ball with his son is a consequence of great significance to him.
61 It is Mr Tartaglia who carries the onus of establishing that his physical injury is serious in the sense in which that term is defined in the Act. I am not satisfied he has discharged that onus.
Mental or behavioural disturbance or disorder
62 Dr Anna Pienkos and Dr Julian Pienkos have both described Mr Tartaglia as suffering from Post-Traumatic Stress Disorder;[19] however, their reports do not assist in setting out the basis of that opinion, the nature or level of symptoms noted by them, or their opinions regarding prognosis for the future. I do draw the inference that, in June 2011, Dr Pienkos considered Mr Tartaglia’s symptoms warranted a referral to Mr Ward for counselling and that, in August 2009, he considered that his symptoms warranted a further referral to Dr Maree.
[19]PCB 24, 25, 26 and 28
63 Dr Maree provided reports dated June 2011 and March 2013. In addition, she gave oral evidence at trial and was cross-examined.
64 In August 2009, more than two years after the accident, Dr Maree diagnosed Mr Tartaglia as suffering from extremely severe depression, anxiety and stress. In September 2009, she considered that he met the full DSM-4 criteria for Post-Traumatic Stress Disorder. She noted he was experiencing flashbacks, hypervigilance, negative foreboding, extreme irritability and loss of tempter, trembling and heart palpations. In August 2010, she considered that he continued to suffer from extremely severe depression and anxiety, although his Post-Traumatic Stress Disorder had reduced slightly. He was placed on anti-depressant medication (Pristiq) which helped.
65 In June 2011, Dr Maree opined that Mr Tartaglia’s condition was consistent with the accident. She noted that healing takes time and she thought that, in this case, it would be impeded by the drawn-out legal proceedings that continually cause the trauma he has suffered to resurface.[20] In her oral evidence, she explained that she was there referring not only to the current proceeding, but also to other legal proceedings which had involved his wife and children and also Court proceedings relating to driving offences with which he was charged relating to the accident.[21]
[20]PCB 32
[21]T130
66 Dr Maree opined that it would do Mr Tartaglia “enormous good” to return to some form of work which he was physically capable of doing.[22] She still held this view when cross-examined at trial.[23]
[22]PCB 32
[23]T129
67 In her March 2013 report, Dr Maree stated that Mr Tartaglia continued to meet the criteria for a diagnosis of Major Clinical Depression and Post-Traumatic Stress Disorder with somatic symptoms. This appears to have been on the basis of his reported feelings of hopelessness and despair, lack of interest in usual activities, extreme anger and irritability, sadness and a sense of isolation, memory difficulties, and physical symptoms such as tense muscles, sweating, trembling and heart palpations.[24] All of those symptoms, she considered, could also be contributing to his back pain. She thought that he would need to continue with the anti-depressant medication, Pristiq, for at least another twelve months.
[24]PCB 34
68 Dr Maree considered that Mr Tartaglia was currently inhibited from employment by his mental ill health which was a direct result of the accident and the injuries suffered by “himself and his family”.[25] She noted his feelings of helplessness and hopelessness, and that he considered that he had lost his position as head of the family and thought that his family did not take any notice of him anymore. Again, she opined that healing took time and would be impeded by the drawn-out legal proceedings previously referred to. She still considered that he was incapable of working as a result of his injuries, both now and into the future.
[25]PCB 35
69 Dr Maree was cross-examined at length concerning the cause of Mr Tartaglia’s mental health symptoms. She did not consider that his depression, anxiety or frustration related to the fact that he had taken on the role of carer for his wife. There had, however, been a great deal of frustration with his family being in a lot of conflict.[26] She did not recall Mr Tartaglia being increasingly anxious or stressed by the carer’s role in which he was acting. She did consider that Mr Tartaglia took his responsibilities as a carer very seriously and that he appeared to be looking after his wife very responsibly but the role as carer did not restrict his ability to live a normal life. Mr Tartaglia had told Dr Maree how frustrating he found the fact that he could not leave his wife for long. He had admitted to being depressed as he could not help his family as a breadwinner since the accident.
[26]T126
70 Dr Maree considered that when an individual had a serious mental injury, it could affect physical abilities and could manifest in their bodies as somatic pain. On the balance of probabilities, she thought his psychiatric state had contributed to his back injury and pain to the extent that his back prevents him from doing things.[27]
[27]T131-132
71 Dr Maree considered that his mental health condition was a direct result of a number of things – the accident itself initially, injuries he suffered and the injuries suffered by his family (including the fact that his wife required ongoing care from him). All of those things were a cause of his mental ill health.[28] His back injury, as such, was not a cause of his mental ill health.
[28]T133
72 Dr Maree considered that if Mr Tartaglia was able to return to work it would be good for him psychologically, because it would improve his self-esteem, confidence, and would help to take his mind off the things that were troubling him.[29] Whether he could do it, she was not sure, but she considered that he would need a lot of support to do so.[30]
[29]T129
[30]T134
73 Dr Weissman, psychiatrist, saw Mr Tartaglia at the request of his solicitors in June 2010 and again in December 2012. On the latter date, he considered that Mr Tartaglia had been and still was traumatised by the accident itself and its consequences. He considered there had been no improvement in his psychiatric state since his earlier examination. His diagnosis was that Mr Tartaglia was suffering from a full hand of Post-Traumatic Stress Disorder symptoms and traumatisation features directly due to the circumstances of the accident. In addition, he considered that he was suffering from moderate, if not severe, mixed reactive depressive and anxiety symptoms, signs and features of severe frustration, irritability and agitation, as well as some guilt. Dr Weissman stated that he was more inclined to diagnose that he was suffering from a Chronic Major Depressive Disorder rather than a Chronic Adjustment Disorder with Depressed and Anxious Mood.[31]
[31]PCB 68 -69
74 On purely psychiatric grounds alone, Dr Weissman considered Mr Tartaglia had suffered a total loss of earning capacity for the foreseeable future.[32]
[32]PCB 70
75 In his oral evidence, Dr Weissman stated that Mr Tartaglia’s symptoms of Post-Traumatic Stress Disorder were moderately severe.[33]
[33]T86, T109, T113 and T116
76 Dr Weissman agreed that, if it was possible for Mr Tartaglia to return to work, it would be likely to help him psychologically. However, based on his moderately severe psychiatric state, including his depression, frustration, irritability, agitation, intermittent passive suicidal ideation, the effect of his sleep disturbance, diminished energy and motivation, and loss of self-esteem, on the balance of probabilities he would be unable to work in suitable employment on the open market place without reference to his advancing age and time out of the workforce.[34]
[34]T113
77 Dr Entwisle, psychiatrist, examined Mr Tartaglia at the request of the defendant in January 2013. He considered that he presented with Post-Traumatic Stress Disorder “in remission”.[35] He did not explain what he meant by this term. I presume he was saying that whilst Mr Tartaglia had suffered from symptoms of Post-Traumatic Stress Disorder, those were no longer apparent but might re-appear.
[35]DCB 19
78 In addition, Dr Entwisle considered that Mr Tartaglia suffered from an Adjustment Disorder with depressed, angry and anxious mood subsequent to the injuries to his wife and children, his inability to work due to pain, and issues relating to the management of his claim and the litigation process.
79 Dr Entwisle considered that Mr Tartaglia required continued psychotropic medication.
80 Contrary to the views of Dr Weissman and Dr Maree, Dr Entwisle considered that Mr Tartaglia’s inability to work did not relate to his psychiatric symptoms but to his concerns about his wife and his inability to leave her alone, together with his symptoms of pain.[36] In this regard, he disagrees with the evidence of Dr Maree.
[36]DCB 20-21
81 On the basis of the evidence of Dr Weissman and Dr Maree, I accept that Mr Tartaglia is suffering from Post-Traumatic Stress Disorder and an Adjustment Disorder with associated Depression and Anxiety. I pay particular heed to the opinion of Dr Maree, who has seen Mr Tartaglia for treatment more than twenty nine times.
Consequences of mental or behavioural disturbance or disorder
82 I accept that the consequences of Mr Tartaglia’s mental or behavioural disorder are:
(a) He has flashbacks and nightmares concerning the accident;
(b) He is depressed;
(c) He suffers anxiety, especially when driving a car, and especially when his wife is a passenger;
(d) He has had suicidal ideation and telephones his psychologist on such occasions;
(e) His sleep is disturbed by regular nightmares and flashbacks;
(f) His interests, energy and motivation are all diminished;
(g) He is irritable;
(h) He has avoided re-visiting the accident site;
(i) He worries about the safety of his children, especially his youngest son, who was injured in the accident;
(j) He is, on balance, incapacitated for his pre-injury duties, and for suitable or alternative duties. Even if he retained some capacity for employment, I consider that, by reason of a combination of his age, his limited education, and his symptoms of Post-Traumatic Stress Disorder and Depressive Disorder, his capacity for employment is significantly reduced and the prospects of him returning to full-time employment in any capacity is slight.
83 Mr Tartaglia was cross-examined at length as to his guilt in respect of the accident and his belief that he had been responsible for it and for the injuries to his wife, daughter, and son. I accept that it is likely that he does experience a degree of guilt in respect of those matters. As I perceived it, the purpose of such cross-examination was an attempt to show that his mental health problems were caused largely, not by the accident or his injuries suffered in it, but by the rigors of caring for his wife and his feelings of guilt for causing injuries to his wife and children.
84 However, I accept the evidence of Dr Weissman and Dr Maree that his Post-Traumatic Stress Disorder and Adjustment Disorder conditions are, in large part, the cause of the symptoms referred to above. I accept the evidence of Dr Maree that his condition did not appear to be related to such feelings of guilt, although clearly he does have such feelings.
85 It may be that, on the one occasion that he was seen by Dr Entwisle, those symptoms of Post-Traumatic Stress Disorder were not apparent to him, leading him to conclude they were in remission. However, I prefer the evidence of Dr Weissman and Dr Maree that Mr Tartaglia does still suffer those conditions and that they are debilitating.
86 I accept that those symptoms have had and continue to have a very considerable effect on his day-to-day activities and quality of life.
Conclusion
87 On the basis of the evidence discussed above, I am satisfied that the consequences of Mr Tartaglia’s Post-Traumatic Stress Disorder and his major depressive condition, when judged by comparison with cases in the range of possible impairments or losses, can be fairly described as being at least very considerable and more than merely significant or marked.
88 I am satisfied that the injury is both severe and long term. I am not satisfied that the completion of legal proceedings relating to the accident will significantly alter the consequences of Mr Tartaglia’s injury, although I accept he will, unsurprisingly, experience some relief when that point is reached.
89 For the reasons expressed above, I am satisfied that Mr Tartaglia has suffered a serious injury in the accident as that term is defined in s93(17) of the Act.
90 Accordingly, pursuant to s93(4)(d) of the Act, there is leave to Mr Tartaglia to bring proceedings to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 28 January 2007.
91 I shall hear the parties in relation to costs.
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