Thomson v Transport Accident Commission
[2012] VCC 1965
•20 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-09-01314
| JUNE THOMSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 10 and 11 December 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Thomson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1965 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Accident compensation – causation – whether consequences “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Pisano v Precision Solid Plasterers Pty Ltd & Anor [2012] VSCA 226
Judgment: Leave to the plaintiff to bring proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Ms J M Forbes | Maurice Blackburn |
| For the Defendant | Mr G A Lewis SC with Ms A L Wood | Lander & Rogers |
HIS HONOUR:
1 The plaintiff was involved in a transport accident on 3 April 2003. She alleges she suffered a soft-tissue injury to her neck and lower spine as a result. She has developed a Chronic Pain Syndrome, and various other psychological conditions. She has not worked since the transport accident, and claims a range of domestic, recreational and social activities have been significantly curtailed.
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 the transport accident.
3 The plaintiff claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder, details of which I shall describe later in this judgment. The application is thus brought under sub-s(c) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff, and two consultant psychiatrists, Dr Weissman and Dr Entwisle, were called to give evidence and be cross-examined. In addition, various medical and psychological reports, clinical notes and other material was 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 1956 and is now fifty-six years of age. She was born in India and schooled to age fourteen. She came to Australia in 1970 or 1971. She separated from her husband in 1994 after he had an affair. She has three adult children.
6 The plaintiff commenced work at the Hurlingham Nursing Home in East Brighton in 1993 and, at the time of the transport accident, was working 59 hours per fortnight. The work was physical and involved food service, cleaning and other domestic duties. According to her affidavit and her evidence, she loved the job and hoped to work there until retirement. Other members of her family have also worked at the nursing home.
7 According to her evidence, aside from some time off for the birth of each of her children, she has always been in permanent employment, at times holding down two jobs.
8 At some time prior to the transport accident, she formed a relationship with an Hungarian gentleman and had hopes that the relationship would be long-term.
9 In addition to her work duties, she was closely involved with her family, and enjoyed a range of domestic duties, in particular cooking. She would attend bingo several times per week in the evening with her mother.
10 Aside from an eye problem for which she received some treatment, the plaintiff was otherwise in good health, and able to perform all of her work and domestic duties without difficulty.
The Transport Accident and its Consequences
11 On 3 April 2003, the plaintiff was being driven home from work by her son. Another vehicle came out of a side street and struck the vehicle that she was travelling in on the passenger-side, near where she was seated. Another vehicle was also involved. She was driven home immediately following the accident, with neck pain and general stiffness. The next day, she went to her general practitioner, Dr Garland, who has treated her from that time through to the present. According to his reports, and clinical notes, she initially presented with neck stiffness. He prescribed analgesia and anti-inflammatory medication, with a soft neck collar. He also referred her for physiotherapy. She has not worked since the day of the accident to the present time.
12 Dr Garland’s treatment continued in 2003 and 2004, and the focus of the treatment would appear to be the plaintiff’s neck and lower back. All of the medical certificates signed by Dr Garland from 2003 until 2006 refer to the injury as a “musculo-ligamentous neck injury”, although it is clear from that doctor’s clinical records that he also treated her for back complaints. In evidence, the plaintiff said that her lower back pain came on some weeks after the transport accident.
13 Dr Garland continued to treat the plaintiff with medication. He further noted associated depression with lowered mood, sleep disturbance, loss of appetite, loss of concentration and a lack of interest in a range of activities.
14 At some point, the plaintiff was treated by Dr Victor Wilk, although I do not have a report from that practitioner. Dr Wilk referred her to a psychologist, Mr Robert Postlethwaite, whom she first saw in May 2004. He treated her on a number of occasions in 2004 and 2005. There was then a break in treatment, which resumed in February 2006 and continued through that year.
15 To Mr Postlethwaite, the plaintiff complained of constant pain in the neck, shoulder, upper and lower back, and with intermittent headaches. At that time, she was taking regular Panadeine Forte and Deptran. The plaintiff said she spent a lot of time sleeping and had little interest in domestic activities. She complained of loss of appetite, reduced capacity to socialise, and that she was consuming excessive amounts of alcohol in particular whisky. Physiotherapy provided no assistance. He said she was very pain focussed, and was exhibiting symptoms of a major depressive illness. His formal diagnosis included Chronic Pain Disorder associated with both psychological factors and a general medical condition, together with a Major Depressive Disorder, single episode. As time progressed, Mr Postlethwaite noted the plaintiff was continually depressed, had a loss of interest in most activities, had sleep disturbance, feelings of worthlessness, diminished cognitive functioning and recurrent thoughts of death.
16 In his report of 29 June 2006,[1] Mr Postlethwaite said the plaintiff had made very minimal gains with her depression. Amongst the items he noted in her history was that she had separated from her husband in 1994, which did not cause any particular psychological difficulty. He further noted that in February 2006, her brother, Oscar, passed away from cancer, which, according to Mr Postlethwaite, caused the plaintiff significant distress. In evidence, the plaintiff accepted that she was affected by her brother’s death, and was still grieving for him.
[1]PCB 30f
17 According to Mr Postlethwaite, the plaintiff’s depression, as at June 2006, developed out of the constant pain which she was experiencing and the impact it had upon her life.
18 According to the affidavit of the plaintiff’s daughter, Ms Jenell Wylde,[2] the loss of both Oscar, and another of the plaintiff’s brothers, James, who died in 2011, had a particular impact upon her mother, and the ongoing pain and depression from the transport accident made it more difficult for her mother to cope with this grieving.
[2]PCB 21
19 According to his report of February 2010,[3] Dr Garland also diagnosed the plaintiff as suffering from a Chronic Pain Syndrome. He said she was totally incapacitated for any work and that her social, domestic and recreational activities were significantly affected. He continued to prescribe analgesia, and noted that she had disturbed sleep. That view continued in his report of 28 November 2012.[4] While the loss of the members of her family is recorded in the doctor’s clinical notes, it does not rate any prominence in his reports.
[3]PCB 27
[4]PCB 30a
20 In addition to the losses of her brothers, the plaintiff has been the subject of a number of other significant losses and stressors in her life. In August 2012, her sister-in-law died. They were very close. Some short time before that, her mother, to whom she was also close, was placed in a nursing home, and was very angry about that decision. As a result, the plaintiff, according a report of Dr Weissman, feels “enormous guilt, shame, embarrassment and self-blame over this”.[5] The plaintiff said that because of the injuries she suffered in the transport accident, she was less able to look after her mother, and that task fell to her brother, who died in 2011.
[5]PCB 89
21 In December 2005, the plaintiff slipped and fell while shopping at Safeway. She suffered a cut above her eye. According to the clinical notes of Dr Garland, she was taken by ambulance to The Alfred Hospital and the wound to her left forehead was sutured. His note continues:
“Feeling depressed and tearful since. Has recommenced Efexor. Brother has terminal cancer (lung and brain) and had gone to Safeway for food for him when fell. Reports previous pains from MCA were slowly improving prior to this fall.”[6]
[6]Clinical notes of Dr Garland, 14 December 2005
22 In her affidavit, and in the histories to many doctors, the plaintiff says she takes six to eight Panadol per day for her low-back pain. The problems with her neck come and go, but are not as severe as the low-back problem. Further, the plaintiff claims that she sees Dr Garland every month or two for that pain, and the associated problems arising from the transport accident. However, according to Dr Garland’s clinical records, the plaintiff consulted him on four occasions in 2007, two occasions in 2008, five occasions in 2009 and four occasions in 2010. While many of these visits involved complaints of “aches and pains”, and prescription of both Panadeine Forte and Antenex (a sleep medication), some of the attendances were for unrelated matters. Further, according to those same clinical records, the prescriptions for Panadeine Forte, in particular over those same years, would indicate a consumption on average of two or three a day, rather than six to eight.
23 According to the plaintiff’s affidavits, and her evidence, the consequences she claims as a result of the injuries sustained in the transport accident are as follows - As a result of the pain in her lower back and neck, she has been unable to return to her previous employment in the nursing home, or to any other alternative employment. She says this, of itself, causes her great distress, as she enjoyed the social atmosphere of her workplace. She says the pain in her lower back is constant and requires her to take six to eight Panadol per day. She has difficulty with sleeping and takes Antenex, which assists her in getting to sleep, but she wakes regularly during the night. She takes Antenex three to four times per week. She says she gets headaches and dizzy spells because of her neck pain, although this has eased of more recent times. She was previously taking anti-depressants, including Zoloft, but because of the side-effects, this has ceased.
24 The plaintiff regularly goes to the St Kilda Baths for spas and water therapy, usually taken by one of her children. Her activities of daily living are significantly affected. She used to enjoy going to bingo, but now only goes during the day and less often. She walks her dogs from time to time, but not as much as before the accident. She does some housework, excluding the heavier aspects, and at a slow pace. She alleges that the relationship with the Hungarian gentleman she met prior to the transport accident was affected by her irritability and mood swings, and he left to return to Hungary. She went to Hungary in an attempt to resume the relationship, but it did not work out.
25 The plaintiff says that her eating has been affected, and she has lost weight. Her memory and concentration are also affected. She does not pay attention to matters of personal hygiene, and has had problems with her teeth. Up until the death of her brother in 2011, he provided assistance in looking after the plaintiff’s mother. However, since his death, she has not been able to provide the necessary assistance and her mother has been placed in a nursing home. She feels distressed by this. She had a passion for cooking prior to the transport accident, but now finds it difficult, although she enjoys cooking with her daughter.
26 Of recent times, her son has had difficulties. He has had two emergency hospital admissions for drug-induced psychosis. The plaintiff said that while this was distressing, he has his medication under control and is back in full-time employment.
27 The plaintiff says she socialises less and dislikes going out. As a result of the emotional effects upon her, she says that she started drinking to excess, and now consumes several bottles of whisky per week, drinking during the day and in the evening. She also drinks wine. She has not always been honest with the treating and consultant doctors about this consumption as she is embarrassed by it. She says she uses alcohol as a self-medication to control the pain.
28 Her claims as to the restrictions brought upon by her injuries are confirmed in affidavits by her friend, Gordon Barlow[7] and her daughter, Jenell Wylde.[8]
[7]PCB 13
[8]PCB 18
Medical Opinions
29 I have already referred to the opinions of the treating general practitioner, and the psychologist, Mr Postlethwaite. I shall not refer in detail to the opinions of various physical consultant practitioners as, in my view, the determination of this application rests very much upon the evidence of the consultant psychiatrists.
30 Mr Rush, surgeon, who examined the plaintiff in February 2006, diagnosed non-specific soft-tissue injuries to the cervical and lumbar spines. The only available radiology was an x-ray of May 2003 which showed no fracture nor dislocation in the spine. I assume there have been no CT or MRI investigations, because the opinion of all of the practitioners appears uniform, that the plaintiff has developed a Pain Syndrome, or Pain Disorder, and that falls for consideration and treatment by the non-physical practitioners.
31 Dr Robyn Horsley, occupational specialist, who examined the plaintiff on 5 March 2009, noted the plaintiff was significantly deconditioned and did very little physical activity. She said that the plaintiff’s primary disability was her emotional fragility, and she noted the diagnosis of a Major Depressive Disorder.
32 Likewise, Mr Rodney Simm, orthopaedic surgeon, said that the plaintiff’s claimed severe chronic pain had an emotional basis.
33 The plaintiff was examined by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, in January 2012. He described the plaintiff as a thin, depressed-looking woman, who was markedly tender to light palpation over the lower spine. He diagnosed a Chronic Pain Syndrome. He thought that the transport accident was the genesis of her symptom complex. In addition to her complaints of pain, Dr Thomas said the plaintiff had a mixed chemical dependency, taking multiple Panadeine Forte per day and drinking alcohol excessively. When he saw her, he said she had no work capacity and required psychological intervention. He did not think that rehabilitation or pain management had very much to offer her.
34 On behalf of the defendant, the plaintiff was examined by Dr Robert Lefkovits, general physician, in October 2003 and March 2006. In the earlier report, he noted the plaintiff was developing an entrenched sick role and that her symptoms were out of proportion to the transport accident. By March 2006, he noted her condition had deteriorated and had become entrenched and chronic. He said she had a Chronic Pain Disorder. Dr David Fish, consultant occupational physician, examined the plaintiff also in October 2003. The initial complaints to these two doctors were largely upper thoracic and cervical neck pain.
35 Dr Mary Wyatt, occupational physician, in October 2004, obtained a history of neck and upper back pain, but also low-back pain.
36 Mr Michael Dooley, orthopaedic surgeon, in November 2011, said that the plaintiff’s complaints of cervical and lumbar spine pain related to her psychological reaction to the injury. He said there was no objective neurological deficit affecting the lower limbs and, from a physical point of view, the plaintiff would be able to carry out light physical or clerical duties.
37 As stated, the determination of the nature and extent of the plaintiff’s condition lies in the psychiatric realm. The plaintiff was examined by Dr David Weissman, psychiatrist, at the request of her solicitors, in February 2006, November 2008, May 2010, September 2011 and September 2012. His reports are extensive and impressive. Dr Timothy Entwisle, psychiatrist, examined the plaintiff on behalf of the defendant in June 2012. Both psychiatrists gave evidence before me. I accept both are experienced clinicians and both presented as impressive witnesses.
38 According to the various reports of Dr Weissman, he received a history of a range of symptoms. These included physical pain in her lower spine with occasional pain in her neck and left shoulder. The plaintiff told him that she drank whisky regularly during the day and night. She said her concentration and memory were affected and she found it difficult to recall recent events. She said she went to the Southland Shopping Centre several times per week to do some minor shopping. She did not socialise, had a lowered sex drive and lived at home with her daughter, two sons and an uncle. She said she enjoyed cooking and contributed to the domestic chores, although did not undertake the heavier aspects. The plaintiff said that she felt miserable, depressed and down. She was only able to sleep for two to three hours at a time. Her appetite was poor and she had dental problems. She had lowered self-esteem and confidence and became frustrated and irritable. She said she felt guilty in not being able to contribute to the household chores, and not being able to assist her mother. In the early stages, she had flashbacks and nightmares in relation to the transport accident, but these had become less frequent. Dr Weissman diagnosed the following:
· Mild residual Post-Traumatic Stress symptoms;
· A severe mixed reactive Depression representing a Chronic Major Depressive Disorder;
· A Chronic Pain Disorder associated with psychological factors and a general medical condition;
· Alcohol abuse.
39 Dr Weissman explored the various other stressors in the plaintiff’s life, including the difficulties with her mother, and death of her brothers and her sister-in-law. The plaintiff said she was particularly close to her sister-in-law. She further said that she was angry about having to place her mother in a nursing home and felt guilt, shame and embarrassment as a result. There was also the matter of her son’s involvement in drugs, hospital admission and psychosis. In analysing these various other stressors, Dr Weissman concluded that the major source of the plaintiff’s psychiatric symptoms was the transport accident. He conceded in cross-examination that his analysis as to why this was the case was not extensive and that he had not explored in detail the clinical effects of these events upon her psychological condition; however, in answer to questions by me[9], Dr Weissman said that, in relation to her Major Depressive Disorder, there were two reasons as to why the transport accident was the major cause: firstly, her extensive depressive symptoms came on before the death of her brother Oscar in 2006; secondly, the symptoms were very much related to the physical pain and resultant disability which she said commenced from the transport accident and continued. As a result, that physical pain affected her social and work life. He said that the Chronic Major Depressive Disorder was the most significant of her psychological problems, then followed by the Chronic Pain Disorder. He said that the Post-Traumatic Stress Disorder provided only very mild residual symptoms, something in the order of 5 per cent. Dr Weissman did accept that the various other family stressors were at present contributing to her Major Depressive Disorder, although not to its onset. He said that approximately sixty per cent of the plaintiff’s Chronic Major Depressive Disorder was related to the transport accident, and the balance to the various other stressors. He said the plaintiff’s consumption of alcohol could be a symptom of depression, or part of the grieving process.[10]
[9]T93-96
[10]Transcript 95-97
40 Dr Weissman further said that he would recommend the plaintiff have further psychiatric treatment in the form of anti-depressant medication and monitoring by a psychiatrist, however, he was not optimistic that, even with that treatment, there would be a significant change in her entrenched depressive symptoms.
41 Dr Entwisle examined the plaintiff once only in June 2012. In the course of cross-examination, he said that when he opened discussion with her about her current state, she volunteered at the outset that she was grieving considerably as a result of the death of members of her family, and the difficulty with her mother being placed in care. Dr Entwisle said this was significant and gave prominence to those issues as being causatively related to her current psychiatric state. According to his report, the plaintiff gave a history that she was affected by the failure of her marriage, and the loss of her boyfriend, who had left to go to Hungary. She felt “abandoned and empty” as a result. She said that those she loved most were gone. She complained of being anxious, insecure and that her sleep was troubled by pain and worry. She said that her memory and concentration were intact. She presented as tearful and emotional.
42 Dr Entwisle diagnosed an Adjustment Disorder with Depressed Mood and alcohol abuse. He said:
“Her current psychiatric symptomatology and her general emotional disposition relate largely to matters involving losses in her life, those being in particular, her brother who died last year, and prior to that, a separation from a man who she loved dearly and at one point followed to Hungary. It is further noted that her marriage ended in 1994 when her husband had an affair. She has always been very close to her mother and is tormented and troubled by the fact that she has had to place her mother in a nursing home. …
Ms Thomson’s grief was palpable and adds to her experience of pain from the accident. Those losses and non accident related factors contribute to the clinical picture which Mr Dooley noted, and explain the psychological component of her reaction to the accident in my opinion, in addition to the pain she speaks of.”[11]
[11]Defendant’s Court Book (“DCB”) 28
43 In the course of cross-examination, Dr Entwisle acknowledged that the plaintiff was in addition suffering from a Chronic Pain Disorder and that that ought to have been part of his diagnosis. He said further that the plaintiff was in a parlous emotional state and required significant and urgent psychiatric help. He said that she required anti-depressant medication, counselling and support and that her diet needed to be monitored. He said with that form of intensive therapy, there would be an improvement within several weeks and the treatment would need to continue for six months. He said he would expect there to be a very significant improvement in her psychological state.
Conclusions from the Psychological Evidence
44 As stated, both Doctors Weissman and Entwisle were impressive witnesses. Dr Weissman has the distinctive advantage of having seen the plaintiff on five occasions from 2006 to 2012. On any view, that has given him a greater opportunity to assess and consider the plaintiff’s psychological health than Dr Entwisle, who has seen her only once. Of importance further is that he assessed the plaintiff before most of the various stressors in her life, save for the death of her brother Oscar, which occurred some weeks before his first report.
45 In my opinion, in accordance with the evidence of Dr Weissman, there are two important factors which mitigate in favour of the transport accident being a significant causative factor of her present mental health difficulties. Firstly, significant features of depression were in place when Dr Weissman first saw the plaintiff in 2006, at which time he diagnosed a Major Depressive Disorder. In that report,[12] he said:
“She is very depressed, distressed, tearful, has anhedonia, passive suicidal ideation, diminished interests and energy, and markedly lowered self esteem and confidence as well as post-traumatic stress and anxiety symptoms. All of these symptoms and features render her totally incapacitated for pre-injury duties, suitable duties and alternate duties for the foreseeable future.”
[12]PCB 49
46 It could not thus be said that the later death of her brother, her sister-in-law and the difficulties with her mother and son had any causative relationship to that diagnosis in 2006. Dr Weissman considered the death of the brother Oscar, but did not consider that as a contributing factor of any moment to the depressive disorder.
47 Further, of significance, is that the plaintiff suffers a Chronic Pain Disorder. That has been diagnosed by a range of practitioners, including the general practitioner, Mr Postlethwaite and Dr Weissman. That disorder is as a result of the pain and restriction the plaintiff suffers or believes she suffers. That pain arose as a result of the transport accident. Although initially the plaintiff complained mainly of cervical pain, Dr Weissman explained that with a Chronic Pain Disorder, it was not uncommon for there to be a complaint of pain in a part of the body separate from that injured in the transport accident.
48 Further, there is a close temporal relationship between the transport accident and the onset of the plaintiff’s psychological difficulties. I thus prefer the opinion of Dr Weissman and accept his diagnosis and his assessment of the contribution of the transport accident.
49 There is no doubt the plaintiff requires intensive psychiatric treatment. A further question that arises is as to whether that treatment regime, if put in place, will significantly alleviate the plaintiff’s current problems. Again, I prefer the opinion of Dr Weissman that, while he would recommend that treatment, he would not hold out great expectation that it will have a significant impact. The plaintiff’s mental state has now become entrenched over nine years. She has had anti-depressant medication, and psychological treatment in the past, apparently with little effect. On balance, I am not satisfied that if such a treatment would be put in place it will significantly change the position.
Conclusions
50 As stated, the plaintiff’s claims to the ingestion of Panadeine Forte, and to the regular attendances upon her general practitioner affect, to some extent, her credibility; however, while I do have some reservations in that regard, they do not warrant dismissing the plaintiff as a dishonest witness. Rather, she is focused upon the transport accident and the pain which she says she feels. In my view, these are not major credit issues.
51 Mr Lewis further submitted that the lack of medication and the limited attendances upon the general practitioner, in particular over the years 2007 to 2010, reflects the paucity of her symptoms. However, it is clear from the reports of Dr Garland, the general practitioner, who would have a keen knowledge of the extent of the plaintiff’s consultations with him, and the medication he has prescribed, that she suffered a Chronic Pain Syndrome, and a Major Depressive Disorder. Further, according to the evidence of Dr Weissman,[13] when the correct position was put to him, he said it had little effect upon his opinion.
[13]Transcript 84
52 As stated, I prefer the opinion of Dr Weissman as to the plaintiff’s current psychological state. While it was put by Mr Lewis that one of the extrinsic stressors, the failed affair with the Hungarian gentleman, was a source of significant distress and trauma to the plaintiff, I am satisfied from the evidence that the failure of that relationship was due to the effects of the transport accident. I accept the evidence of the plaintiff that the breakdown of the relationship commenced after the transport accident and was due to her irritability and other emotional sequelae. It is clear from the evidence of both Doctors Weissman and Entwisle that pain in the manner described has the capacity to affect relationships.[14] Thus, the breakdown of that relationship is a consequence of the transport accident.
[14]Dr Weissman at Transcript 86; Dr Entwisle at Transcript 127; the plaintiff at Transcript 43
53 In considering the consequences of the transport accident, and the consequences of the various other extrinsic stressors, the law provides that I must determine the consequences which specifically arise from the transport accident, and then assess whether they meet the “severe” test as prescribed by the legislation. “Severe” is a word of stronger force than “serious”.
54 In submissions, Mr Lewis said the extrinsic stressors were the substantial cause of the plaintiff’s current emotional state. Further, it was relevant to consider not only the activities which the plaintiff had lost, but those which she had retained. He said she was still able to play bingo, still enjoyed cooking, in particular with her daughter, and went to Southland Shopping Centre several days per week to shop. She was still able to walk her dogs and undertake some domestic duties. Further, he said that the plaintiff receives little in the way of treatment at the present time from her general practitioner, was prescribed no medication for her psychological problems and had no other form of treatment often associated with severe psychiatric conditions, including hospitalisation. In all those circumstances, he submitted that the plaintiff’s condition did not meet the “severe” test.
55 As stated, I accept the opinion of Dr Weissman that a significant proportion of the plaintiff’s Chronic Major Depression (something over fifty per cent), all of her Chronic Pain Disorder, and the residual symptoms of Post-Traumatic Stress Disorder are related to the transport accident. I am satisfied that as a result, the plaintiff suffers the pain to which she refers and is restricted in a range of activities as set forth in her affidavits. Of particular note is that I accept the plaintiff has had her employment capacity destroyed by the consequences of the transport accident. When all these matters are taken together, and excluding what I accept are some aspects of her depression arising from the deaths of her brother, sister-in-law and the difficulties in placing her mother in care, I am satisfied those consequences reach the “severe” level. In particular the destruction of a person’s work capacity is a very significant consequence.
56 Even considering the plaintiff’s mental state as at February 2006 as described by Dr Weissman in the passage to which I have referred, she was suffering a significant mental disorder. That situation continued up until 2011 when she suffered the death of her brother, and in 2012, the death of her sister-in-law and the difficulties with her son and mother. By 2006, and continuing until 2011, the symptoms of the plaintiff’s psychological disorders were sufficient, in my view, to constitute the “severe” level. As was argued by Mr Jewell, and in accordance with the principles established by Pisano v Precision Solid Plasterers Pty Ltd & Anor,[15] those subsequent extrinsic stressors did no more than aggravate and extenuate the underlying depressive condition, which was already well-established and debilitating. Mr Lewis submits that the death of her brother, Oscar in 2006, was a significant grieving and distressing factor. That is undoubtedly the case. However, Dr Weissman, Dr Garland, the general practitioner, and Mr Postlethwaite, the psychologist, did not, according to their reports, take the view that death was a significant contributing factor to the plaintiff’s depressive disorder over those years. I accept those opinions.
[15][2012] VSCA 226 at paragraph 40
57 I am further satisfied that the sequelae of the transport accident made the plaintiff more vulnerable to those stressors, and reduced her capacity to deal with them in an appropriate manner. That, of itself, is a consequence.[16]
[16]See evidence of Dr Weissman at Transcript 85, Line 13
58 In all these circumstances, the plaintiff’s application succeeds.
59 I shall make consequent orders.
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