Taylor v Transport Accident Commission
[2012] VCC 1849
•10 December 2012
| 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-11-05104
| KELLI TAYLOR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 23 and 26 November 2012 | |
DATE OF JUDGMENT: | 10 December 2012 | |
CASE MAY BE CITED AS: | Taylor v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1849 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – physical and psychological injuries – pre-existing psychological condition – whether consequences “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with Mr D Seeman | Robinson Gill |
| For the Defendant | Mr A J Moulds SC with Mr D C Oldfield | Wisewould Mahony Lawyers |
HIS HONOUR:
1 The plaintiff was involved in a transport accident on 12 April 2008 when a trolley, from which she was unloading shopping, was struck by a vehicle which in turn struck her and knocked her against her vehicle. She suffered injury to her right knee and lower spine, as a result of which she claims significant consequences, both as a result of physical and psychological injury, which have affected a range of domestic, social and recreational activities.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in a transport accident on 12 April 2008.
3 The body function said to be lost or impaired is the lumbar spine. In addition, the plaintiff claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The application is thus brought under ss(a) and (c) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff, her husband and her treating psychologist, Ms Heather Wright, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and her husband, and various treating and consultant medical practitioners’ reports and clinical notes were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff and the other witnesses, but rather those parts of their evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
5 The plaintiff was born in 1971 and is now forty-one years of age. She was born in Melbourne and attended school to Year 12. According to her affidavit,[1] she was in reasonably good health before the transport accident. She said that she suffered post-natal depression after the birth of each of her two daughters. She also suffered from a condition, fibromyalgia, for which she took medication. She has suffered various other conditions, including a hernia, long-term endometriosis and celiac disease.
[1]Plaintiff’s Court Book (“PCB”) 9
6 She is married with two daughters, now aged twenty and sixteen.
7 She has not been in employment since the birth of her children. Her husband has a cardiac condition, and receives a pension. She also receives a pension as his Carer. Her caring duties appear mainly to ensure that he takes a range of medication for his heart condition.
8 She said did not have any pain nor restriction to her lower spine prior to the transport accident.
9 It emerged in cross-examination that the nature and extent of the psychological condition which existed prior to the transport accident was more extensive than described in her affidavit.[2]
[2]Although the plaintiff gave a more extensive history to some of the consultant psychiatrists.
10 In cross-examination, the plaintiff accepted that in about 1996, after the birth of her second daughter, a diagnosis of depression was made and she was placed on Zoloft and subsequently, a number of other anti-depressant medications. Eventually she was prescribed Aropax. She said she was treated by a general practitioner in Bendigo for depression.
11 She thought, around 1999, she was treated by a general practitioner in Shepparton, Dr Dyson. According to a letter from the Goulburn Valley Area Mental Health Service to Dr Dyson of 8 December 2001,[3] the plaintiff was seen by the Acute Response Team of that service at times over the period December 2000 to December 2001. She was treated for syndromal depression[4] with anxiety features, including panic attacks, but without suicidal thoughts, psychotic symptoms, and bipolarity. She was diagnosed as suffering a recurrent Depressive Disorder with episodes of post-natal depression noted. Her prescription of Aropax was changed from 20 to 40 milligrams per day. The letter said that the plaintiff was discharged back into the care of Dr Dyson.
[3]Defendant’s Court Book (“DCB”) 80
[4]Depression relating to a syndrome
12 Subsequently, around 2002, she was treated by another general practitioner, Dr Tisdall, of Kyabram. He referred her to Dr William Orchard, psychiatrist, of Melbourne. According to a letter from that practitioner to Dr Tisdall of 24 September 2002,[5] the plaintiff –
“… seems to have a bipolar type depression since the birth of her last child and has been on Aropax for six years with only partial control and with severe mood swings and overactivity of her mind.”
[5]DCB 81
13 Dr Orchard obtained a history that she was sexually inhibited on Aropax. He noted Dr Tisdall had prescribed Epilim, which he suggested she maintain for a period of approximately a year.
14 Further, a report of Dr Gregory Taggart, gastroenterologist, of 1 October 2002[6] noted the presence of an Irritable Bowel Syndrome. He said:
“As you know, she has been severely depressed and despite a large number of medications she remains this way.”
[6]DCB 83
15 The clinical notes of the Nixon Street Medical Clinic at Shepparton were tendered into evidence.[7] Those notes reveal the following entries relating to the plaintiff’s psychological state:
[7]PCB 91 and following
· “13 April 2007 – Poor sleep. Early morning wakening. Depressed mood. Low self-esteem. Irrational fear. Two months no panic attacks. No compulsive behaviours. No hallucinations. No delusions. No suicidal thoughts.
· 25 May 2007 – Counselling. Epilim medication ceased.
· 14 June 2007 – Doing well without Epilim. Under lots of stress. Counselling.
· 6 August 2007 – Aropax medication increased from 30 milligrams to 40 milligrams daily.
· 13 August 2007 – Poor sleep. Early morning wakening. Depressed mood. Low self-esteem. Irrational fear. Two months no panic attacks. No compulsive behaviours. No hallucinations. No delusions. No suicidal thoughts. Reason for visit – depression.
· 23 August 2007 – Poor sleep. Early morning wakening. Depressed mood. Low self-esteem. Irrational fear. Twelve months no panic attacks. No compulsive behaviours. No hallucinations. No delusions. No suicidal thoughts. Reason for visit – depression – Aropax tablets 20 milligrams twice daily.
· 3 September 2007 – Polyarthropathy. On Mobic. No better.
· 31 October 2007 – Mental Health Plan – review.
· 8 November 2007 – Mental Health consultation – counselling.
· 30 November 2007 – Insomnia – anxiety related – counselling.
· 6 December 2007 – Pain management.
· 26 March 2008 – Well. Mood ok. No suicidal thought. Sleep well. Good appetite. Not depressed – Aropax tablets 20 milligrams twice daily.
· 9 April 2008 – Has fibromyalgia – on Ducene to relax muscle for many years. Told to be taken by a specialist.”
16 The above entries were interspersed with other clinical attendances for various unrelated physical complaints. Between the consultation of 30 November 2007, and the date of the transport accident, 12 April 2008, the plaintiff attended her general practitioner on ten or so occasions, without reference to any psychological difficulties.
17 In accordance with the clinical notes, a “mental health review” was undertaken on 31 October 2007 by the general practitioner, Dr May Younis.[8] That review noted:
“Still depressed, not much improvement, moody, crying for no reason, anxious and nervous – always been.”
[8]DCB 82
18 The “goal” was said to be –
“Control her depression. Improve quality of life. Prevent complication.”
19 As to medication –
“Start effexor 75 milligram sample packet, aropax 20 milligrams 1 tab instead of 2 for one week. After that stop aropax, then continue with effexor.”
20 The follow-up was said to be:
“Continue psychotherapy education, which she found it [sic] helpful.”
21 The plaintiff accepted that she suffered regular panic attacks leading up to 2007[9] and that sometimes they would cause agoraphobia.
[9]T 17, L29
22 The plaintiff’s current treating psychologist, Ms Heather Wright, provided two reports of August 2011 and October 2012. The reports noted the plaintiff had attended for four one-hour sessions between May 2007 and August 2007 which were said to relate to problems the plaintiff was experiencing with her older daughter. In the course of cross-examination, Ms Wright provided her clinical notes for the sessions of therapy in 2007.[10] Those notes referred to a range of psychological difficulties, including that the plaintiff could not relax, had lowered self-esteem, her stress levels were very high and she had memory deficits. The plaintiff reported that her libido had “gone for years”. Various psychological tests were undertaken, and according to the clinical notes, Ms Wright diagnosed an Adjustment Disorder and a Major Depressive Disorder. She said that this was an acute episode which responded well to her treatment, although she said she would have liked to have seen the plaintiff on some further occasions.
[10]Exhibit 1
23 In addition to the psychiatric problems from which the plaintiff suffered prior to the transport accident, she was also diagnosed with fibromyalgia[11], for which she was prescribed Ducene. Of significance is a note in the clinical records of the Nixon Street Medical Clinic of 5 June 2008, which states:
“Pain at lower back pain for eight years, sometimes radiating to left leg.”
[11]A non specific disorder causing generalised muscular aches and pains
The Injuries Suffered in the Transport Accident and their Consequences
24 On 12 April 2008, the plaintiff had parked her car at the car park of the Coles Supermarket in Mooroopna. She was unloading shopping into the rear of her station wagon. Another vehicle in the car park reversed, striking the shopping trolley and pushing it against the plaintiff. The trolley hit her mainly in the right knee area, wedging her against the back bumper bar, but she was also forced backwards into the open area of the station wagon, striking her lower spine against the gas tank.
25 She was driven home and woke the next day with pain in her right knee and lower back. She went to see her general practitioner, Dr Younis, who prescribed pain-relieving medication.
26 In September 2008, the plaintiff was referred to Dr Michael Brighton-Knight, orthopaedic surgeon. He noted that her right knee pain had settled but that she had pain in the lower spine with distribution down the leg in the path of her left sciatic nerve. The pain was said to be disabling. He diagnosed a Chronic Pain Syndrome, and said:
“Kelli has developed classic central sensitisation, fear of activity and chronic pain associated with a traumatic injury on the background of a previous predisposition to pain disorders.”[12]
[12]PCB 23
27 He referred her to Dr Terence Lim, consultant in rehabilitation and pain medicine, for her pain management.[13]
[13]It appears the plaintiff saw Dr Lim, who prescribed Lyrica. There is no report from that practitioner.
28 Dr Brighton-Knight referred to a CT scan, which he said showed bulging at L4‑5 and some possible impingement upon the L5 nerve root, although he thought this was probably “a distracting diagnosis”.[14] He noted that she was receiving opioid analgesia, as well as Diazepam and anti-inflammatories. He said neurological examination was entirely normal and that the problem was due to a Chronic Pain Syndrome with central sensitisation. He referred the plaintiff for an MRI scan of the lower spine[15] which showed:
“At the L4/5 level, there is only minor broad based disc displacement posteriorly which flattens the ventral theca, but does not extend to the lateral recess and does not appear to be neurocompressive. The exiting nerve roots are unencumbered. At the L5/S1 level, there is only mild disc displacement posteriorly, which is non-neurocompressive. No foraminal encroachment identified, particularly the L5 nerve roots.”
[14]PCB 24
[15]PCB 21-22
29 The plaintiff attended Dr Hawtin, chiropractor, for treatment towards the end of 2008.[16] She also attended for physiotherapy.[17] The physiotherapist noted:
“Chronic pain behaviour that is typically difficult to manage when compensation is involved.”
[16]PCB 50
[17]PCB 31
30 In November 2008, the plaintiff changed general practitioners, and attended a Dr Knight of Shepparton. She prescribed analgesics, relaxants and nerve transmitting agents. She referred the plaintiff to Dr Brett Todhunter, an anaesthetist, in May 2009. He noted the disc bulge on radiology did not appear significant and there was no neurological compression. He noted the plaintiff was in receipt of 100 milligrams of MS Contin twice a day. He suggested he undertake facet joint blocks in the lower spine to determine which structures were a cause of her pain. He said:
“Due to the severity of her pain this has had a significant psychosocial secondary effect.”[18]
[18]PCB 28
31 The plaintiff, at the present time, is under the care of Dr Knight, and she prescribes Panadol Osteo, Ibuprofen (anti-inflammatory), Endep and Valium. The plaintiff was taking Endep prior to the transport accident, but in a far lower amount. She also takes Aropax for depression, in the same 40‑milligram per day prescription as before the transport accident.
32 In May 2009, she was referred back to Ms Wright, psychologist, for treatment. That treatment has continued, on and off, through to the present time. In 2009, Ms Wright undertook similar psychological testing, as had occurred in 2007. There were distinct similarities with the earlier testing. A comparison between the two indicated that in relation to the depression inventory, this measured 14 in 2007, as opposed to 27 in 2009.[19] Testing for Post-Traumatic Stress and Anxiety showed both of approximately the same level and in the severe range.
[19]This measures a part only of the test
33 Treatment by Ms Wright has involved psychotherapy. She assessed the plaintiff as suffering a Post-Traumatic Stress Disorder and a Major Depressive Disorder related to the transport accident. She said the plaintiff was significantly impaired in a range of areas, including interpersonal, social, cognitive, emotional, behavioural, and psychologically. She said the plaintiff experienced episodes of severe depression, flashbacks of the transport accident, the cessation of sexual relations with her husband, significant physical restrictions due to chronic pain, and reduction in social activity. She said the plaintiff’s confidence was affected, as was her ability to undertake her normal domestic duties, and that she had developed a sense of hopelessness. Treatment had brought some benefit but she said the plaintiff remained at high risk of recurrent depressive episodes. She said the plaintiff had experienced severe levels of suicidal ideation and self-harm.
34 In addition to her reports, Ms Wright was extensively cross-examined. I found her an unimpressive witness, reluctant to accept that the plaintiff had significant psychological problems in accordance with her findings in 2007. Ms Wright appeared to me to be too prepared to attribute all of the plaintiff’s current psychological issues to the transport accident. She was not prepared to make reasonable concessions in the course of her cross-examination, and in my view, became an advocate for the plaintiff’s cause.
35 According to the plaintiff’s affidavits, the consequences which she alleges are attributable to the transport accident include that she is unable to undertake the domestic chores she enjoyed prior to the transport accident. Her family does the cooking and helps with the heavier domestic duties. She said that she previously enjoyed four-wheel driving and camping, but now, did so only occasionally and not interstate as before. She said that her enjoyment of her garden was restricted and she was unable to walk or stand for lengthy periods. Back pain became a real issue after she drove for more than ten minutes, both in her lower spine, and referred pain down her leg. She said that her sleep is affected by pain and that she has flashbacks and nightmares of the transport accident. She is less social than before and her intimate relationship with her husband has been affected. She says that she has contemplated suicide. She has put on weight since the accident and suffers from fatigue.
36 According to the affidavit of her husband, the family do not socialise nor travel as much as previously, in particular on camping trips. He said that prior to the transport accident, they would have sexual relations approximately three times a week, which has dramatically changed, causing stress upon their relationship.[20]
[20]This statement stands in stark contrast to the history provided in 2007 to the psychologist, Ms Wright, that the plaintiff had little, if any, libido.
37 Mr Taylor said his wife was unable to do the heavier household chores and that generally their lives had changed significantly as a result of the transport accident.
Medical Opinions
38 The plaintiff was examined at the request of both her solicitors and the defendant by a number of consultant practitioners.
39 In relation to the physical practitioners, Mr Kahn, orthopaedic surgeon, examined the plaintiff in July 2009. He noted the CT scan showed an L4-5 disc bulge and that a nerve conduction study was consistent with mild left sciatic neuropathy and radiculopathy. He said the plaintiff had jarred her spine in the transport accident, which he said resulted in a mild posterolateral left-sided disc prolapse which was confirmed by the MRI. He considered she was getting discogenic pain in the lower spine and pain along the left leg. He said the long-term prognosis was guarded and he did not consider, at that stage, that the plaintiff’s condition had stabilised. He said she did not require surgery.
40 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in August 2012. He obtained a history that the plaintiff had suffered ongoing lower back pain for four years, which had left her chronically disabled and with left-sided sciatica. This had affected her capacity to undertake a range of domestic and social duties. He opined the plaintiff was subjected to a significant crushing force in the incident, which resulted in a heavy twisting strain on the lumbosacral spine. He said that the plaintiff’s clinical condition was complicated by a quite severe depression and while she suffered chronic low-back pain of a mild to moderate severity –
“… with a large superadded element of depression and anxiety which is probably a greater factor than the actual physical damage to the lumbosacral spine itself.”[21]
[21]PCB 88
41 On behalf of the defendant, the plaintiff was examined on a number of occasions by Mr Michael Dooley, orthopaedic surgeon, in 2009 and 2012. He considered she had suffered a soft-tissue injury in the transport accident and possibly an aggravation of an underlying degenerative disc disease. He said, however, that the constancy and intensity of the symptoms were out of proportion to the injury and given her past history of depression and fibromyalgia, she was predisposed to “pain magnification”. He said some of the plaintiff’s symptoms had an organic basis but there was a psychological reaction. He concluded that the majority of the plaintiff’s current presentation related to her psychological condition.
42 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in 2011 and 2012. He received complaints from the plaintiff of constant lower back pain radiating into the left buttock, through the left thigh and calf and into the sole of the foot. The plaintiff described pain as being 11 out of 10 on an analogue scale. He noted the MRI as demonstrating a broad-based disc displacement at L4-5 without neurocompression. He diagnosed a Chronic Pain Syndrome. He accepted that the transport accident would be responsible for some non-specific back pain; however, the clinical course and his findings indicated that was complicated by psychosocial factors, resulting in a well-established Chronic Pain Syndrome. He said the prognosis was poor.
Conclusions as to Physical Injury
43 I accept the plaintiff suffered a twisting type injury to her lower spine in the transport accident which resulted in some soft-tissue damage. I am not satisfied that, as a result of the transport accident, the plaintiff suffered a disc bulge or prolapse as opined by Mr Kahn. No other practitioner has come to that conclusion.
44 It is clear from all of the reports, both treating and consultant, with the exception of Mr Kahn, that the plaintiff’s psychological state has overwhelmed the physical state, and the plaintiff suffers a Chronic Pain Syndrome. It is clear that that Chronic Pain Syndrome falls to be considered under sub-paragraph (c) of the definition of “serious injury” as a behavioural disturbance or disorder. In his submissions, Mr Hore-Lacy, for the plaintiff, did not press the plaintiff’s physical injury as constituting a serious injury, with any vigour.
Medical Opinions – Psychological
45 I have already referred to the opinion of the treating psychologist, Ms Wright.
46 On behalf of her solicitors, the plaintiff was examined by Associate Professor Paoletti, psychiatrist, in 2009. He received some history of the plaintiff’s pre-existing psychological problems,[22] but the picture painted by the plaintiff was far from complete. The plaintiff described a wide range of psychological sequelae of the transport accident,[23] including nightmares, flashbacks, affect upon appetite, reduction in libido, increased irritability, and affect upon concentration and memory. His opinion was that the plaintiff was suffering from:
[22]PCB 54
[23]PCB 56-57
· An Anxiety Disorder with some features of a Post-Traumatic Stress Disorder which was directly related to the transport accident and dominating the psychiatric picture.
· A Depressive Disorder, being a recurrence of the previous depression, as a result of her physical pain.
· A Pain Disorder as a combination of physical pathology and her psychological state. He said this was pre-existing, given her fibromyalgia, and was partially related to the transport accident.
47 Although it is not particularly clear from his report, according to a table provided, it would appear that approximately three-quarters of the psychological sequelae were related to the transport accident.
48 The plaintiff was referred to Dr Lester Walton, psychiatrist, in 2008, and again in 2012. Dr Walton obtained a somewhat more comprehensive psychiatric history, although incomplete, particularly in respect of the plaintiff’s condition in 2007. She complained to him of anxiety, particularly around motor vehicles, that she was nervous and panicky, that her depression had become worse and her sleep was affected. He noted the history that at some stage the plaintiff had been diagnosed as having a Bipolar Effective Disorder, which she rejected.
49 Dr Walton concluded that the plaintiff was suffering waxing and waning anxiety and depression since at least 1996, related to post-natal depression. He said agoraphobic anxiety was prominent and that because of her constant pain, the plaintiff was experiencing an aggravation of a mood disturbance. The pain included her physical conditions; in particular fibromyalgia. He considered that given the transport accident resulted in only minor physical injuries, it would be unlikely a major psychiatric problem would follow. He said the likely explanation for the plaintiff’s excessive response to the transport accident was her pre-existing problems, which made her considerably vulnerable to further psychiatric complications. He said that her current psychological symptoms were partly attributable to the transport accident and that the plaintiff was certainly suffering from pre-existing mood disturbance and pain prior to that accident.
50 By 2012, he noted recent psychosocial stressors, including problems with her daughters, the eldest daughter having become pregnant with a partner with whom the plaintiff had a strained relationship, and a younger daughter suffering difficulties with schooling. He said these would be a source of stress. He took the view that the plaintiff had a somewhat distorted perception of the cause of her current physical and psychiatric symptoms and was overly focussing upon the transport accident. He concluded that accident had relatively little impact upon her lowered mood.
51 Finally, the plaintiff was examined by Dr Richard Ball, psychiatrist, in August 2011. Again, the previous psychiatric history as disclosed to Dr Ball was incomplete.[24] In contrast, the plaintiff described to Dr Ball an extensive range of psychiatric symptoms, all relating to the transport accident, and an associated restriction upon recreational and domestic activities.[25] These included ongoing physical pain in her back and leg, a significant affect upon sleep, restriction in driving, nightmares and flashbacks, lowered mood, sexual inhibition and a doubling of her Aropax.[26] Generally, she said that her whole life had changed as a result of the transport accident.
[24]DCB 48
[25]DCB 45
[26]In fact, the plaintiff was on the same dose of Aropax prior to the transport accident
52 Dr Ball’s opinion was that the plaintiff had a clear history of depression and anxiety which had required medical treatment, prior to the transport accident. This, he said, was on a background of a variety of family problems and the diagnosis of fibromyalgia. He accepted that the transport accident was a frightening experience, but that it did not fulfil the criteria for a formal diagnosis of Post-Traumatic Stress Disorder. He acknowledged that there was more than one way for a person to react to trauma. He noted there were complications in the plaintiff’s domestic situation, which continued to place stress upon her, including the illness of her husband, the difficulty with her older daughter with obstetric problems, and her younger daughter’s discipline and schooling.
Conclusions from the Psychological Evidence
53 I prefer the opinion of the psychiatrists who have examined the plaintiff for the defendant, Doctors Walton and Ball. They each lay significant responsibility for the plaintiff’s current psychological state upon her pre-existing anxiety and depressive problems, and that while, to some extent, the transport accident was a frightening experience, her psychological reaction was out of proportion.
54 I do not accept the opinion of Ms Wright, the treating psychologist, that the plaintiff has suffered a Major Depression and Post-Traumatic Stress Disorder from the transport accident. She is the only psychological practitioner to come to this conclusion. As earlier stated, I was not impressed by her evidence.
55 Associate Professor Paoletti was of the view that the transport accident was a significant contributing factor, although that is not particularly clear from his report. It was difficult to determine why he concluded that the preponderance of the plaintiff’s problems related to the transport accident, rather than the pre-existing issues. In any event, he, like the other practitioners, did not obtain a comprehensive history.
56 I accept that the transport accident was a frightening experience and that, as a result, there was some exacerbation upon the plaintiff’s pre-existing anxiety and depressive problems. I do not accept that she has suffered a Post-Traumatic Stress Disorder, or even significant symptoms of it, given, in particular, her admission that she returns to the car park where the incident occurred on occasions to do her shopping.[27]
[27]T 65
Conclusions
57 As stated, this application falls to be determined under sub-paragraph (c) of the definition of “serious injury” set forth in the Act.
58 In Richards v Wylie,[28] Chernov JA said that the first matter to be determined was whether the plaintiff’s condition had been brought about predominantly by physical injury or a mental or behavioural disorder. If the latter, he said:
“…The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. … .”
[28](2000) 1 VR 79 at paragraph 28
59 I take his Honour to mean that, in a case such as the present where there is a significant functional or psychological element of pain and disability, to the extent that that pain and disability has as its genesis from a psychological disorder, they may be taken into account under sub-paragraph (c). To illustrate by example, if a person cuts his finger with a knife, there will be pain as a result of damage to the tendons and nerves. That pain has an obvious physical component and falls to be considered under sub-paragraph (a). However, if a person claims to suffer pain not only in the finger, but in the whole of the hand and up the arm in a manner out of proportion to the original injury, and the diagnosis of a Pain Syndrome or functional disorder is made, then, to the extent that that pain, and functional symptoms, are not as a result of conscious exaggeration, they fall to be considered under sub-paragraph (c).
60 As earlier stated, I am satisfied that the plaintiff suffers a Pain Syndrome and to the extent that syndrome leads the plaintiff to the view that she honestly suffers pain and disability, that may be taken as a consequence under sub-paragraph (c).
61 Although there was not a concerted attack upon the plaintiff’s credit, I would have expected her to have made a far more detailed disclosure in her affidavit and in the histories to the various practitioners as to the nature and extent of what I assess to be a considerable psychological disorder which existed prior to the transport accident. That disorder manifests in symptoms of anxiety and depression, even post-traumatic stress symptoms as determined by Ms Wright, the psychologist, in 2007. It is clear the plaintiff had extensive treatment from a range of general practitioners and was prescribed, among other medications, Aropax for depression. For a period, she was prescribed Epilim as a mood stabiliser. She was treated by the Goulburn Valley Community Health Centre over twelve months or so, which would indicate a period of acute disturbance. The Aropax continued up to the date of the transport accident in levels precisely the same as the present. In addition, the plaintiff regularly complained to her general practitioner of poor sleep, lowered mood, various fears, anxiety and some panic attacks. The panic attacks on occasions caused agoraphobia. Such was the extent of these symptoms, that she had a further acute episode in 2007 which required treatment over a number of months by Ms Wright.
62 A relatively short time prior to the transport accident, in October 2007, the plaintiff was still significantly depressed, such as to warrant a mental health plan review by Dr Younis. As part of that plan, the goal was expressed to be “to control her depression”. This indicated the plaintiff was suffering considerably from depression at that time.
63 As was pointed out by Mr Moulds in the course of submissions, it is curious that while brief reports were obtained from Dr Younis, there was no attempt to obtain an opinion about the nature and extent of her treatment of the plaintiff for psychological problems prior to the transport accident, nor to make any comparison to the symptoms thereafter. I would have expected such an assessment from a practitioner in a clinic where the plaintiff was regularly treated. To the extent that there is no such report on the issue, I infer that had a report been provided addressing the issue, it would not have assisted the plaintiff’s case.
64 The plaintiff, in the course of her affidavit, and in evidence, particularly re-examination, said that the nature and extent of her psychological symptoms were very much increased after the transport accident. However, I have some reservations about this evidence. In my view, the plaintiff has become very focussed upon the transport accident as being the source of all her problems, ignoring, to a large degree, her pre-existing troubles. The real issue for consideration is the extent to which the transport accident aggravated the symptoms of the plaintiff’s pre-existing psychological disorder, and whether the consequences of that aggravation achieve the “severe” level as the legislation requires.
65 I accept that the plaintiff’s domestic activities have been curtailed to some extent. However, she had been suffering fibromyalgia for years up to the transport accident, and received prescription medication. In addition, the plaintiff currently undertakes a range of activities within the home, including as the official Carer for her husband, and assisting her daughter with a new baby. She shops regularly, returning to the same supermarket car park where the incident occurred, and to other areas. She home-schooled her daughter in Year 9 in 2010 because of difficulties that daughter had at school.
66 She still sees friends regularly, and in particular, a friend who comes around every day. The claim, particularly of her husband, that the couple’s sex life has been significantly affected is untenable given her earlier statements to the psychologist that her libido had been “gone for years”. Prior to the transport accident, she also suffered some panic attacks, and agoraphobia, as well as symptoms of depression and anxiety.
67 While I accept her capacity to enjoy camping with her family is somewhat affected, she still goes camping from time to time locally at Toolamba.
68 In submissions, Mr Hore-Lacy compared the plaintiff’s disorder as akin to an eggshell skull; that is, that she was rendered more vulnerable by the pre-existing psychological problems to the effect of the transport accident which has acted as a trigger to her present difficulties. However, in my view, while there has been some increase both in physical and psychological symptoms, that increase, when consideration is given to the consequences produced, does not reach the “severe” level prescribed. The word “severe” has been defined as a term of greater force than “serious”. The consequences of the aggravation caused by the transport accident upon the plaintiff’s pre-existing depressive disorder must be just that, severe. It is impossible to define what severe means in this context. Each case must be determined upon its own facts and circumstances. However, if the plaintiff was receiving treatment and medication for the pre-existing condition, then the increase caused as a result of the transport accident must be very substantial. Likewise, with the symptoms such as anxiety, depression, suicidal ideation, affect upon self esteem, and stress, and in addition, the affect upon domestic and recreational activities, intimate relationship with a spouse, sleep and the like. This has proved not to be the case.
69 The plaintiff was significantly affected by her psychological disorder and, to a lesser extent, fibromyalgia, prior to the transport accident. I have reservations about the evidence of the plaintiff as to the extent to which she is affected by symptoms specifically related to the transport accident. When a comparison is made as to the nature and extent of the psychological problems she suffered prior to the transport accident and afterwards, I am not satisfied that the consequences produced are sufficient to reach that severe level.
70 The plaintiff’s application is dismissed.
71 I shall make consequent orders.
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