Trenerry (a pseudonym) v TAC
[2022] VCC 214
•7 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
| NATASHA TRENERRY (A PSEUDONYM) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2022 | |
DATE OF JUDGMENT: | 7 March 2022 | |
CASE MAY BE CITED AS: | Trenerry (a pseudonym) v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 214 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – Chronic pain syndrome – Mental disturbance or disorder – Plaintiff’s credit in issue – Reports of medical practitioners undermined by Plaintiff’s reporting of symptoms
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Transport Accident Commission v Kamel [2011] VSCA 110
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr S Smith QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1Ms Trenerry[1] claims to have suffered serious injury pursuant to s 93(4) of the Transport Accident Act 1986 (Vic) (“the Act”), arising from a motor vehicle accident on 21 March 2017. She brings her claims for both physical injury to the spine pursuant to s 93(17)(a)[2] and also for a severe mental disturbance or disorder pursuant to paragraph (c).[3] The Defendant accepted that as a result of the motor vehicle accident, Ms Trenerry suffered soft tissue injury to the cervical and lumbar spine.[4] Thereafter, the Defendant puts in issue whether any ongoing pain and symptomatology arises from physical or mental causes. In this way, the Defendant argues that Ms Trenerry’s physical and mental conditions are so enmeshed that they cannot be divided in order to perform the assessment as to whether they meet the relevant serious injury statutory thresholds. In the event, Ms Trenerry’s physical and mental conditions can be separated, the Defendant then submits that the impairment consequences do not rise to the level of being considered serious (or severe). As part of these attacks, the Defendant submits Ms Trenerry is not a witness of truth, as displayed by contradictions in her affidavit material and also by surveillance footage.
[1]A pseudonym.
[2] Transport Accident Act 1986 (Vic), s 93(17)(a)
[3] Ibid, s 93(17)(c)
[4]Transcript (“T”) 3, Line (“L”) 6-7
2As the Act[5] requires distinguishing between injuries with physical consequences and injuries with mental consequences, it is useful at the outset to state the position of the law. This was hotly disputed between the parties in closing submissions. The principles I am required to apply to this debate are set out in Transport Accident Commission v Kamel[6] and the judgment of Kyrou AJA[7] with whom both Warren CJ and Ashley JA concurred. There, Kyrou AJA stated:[8]
“The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.
The ‘textual distinction’ between the physical and mental consequences of an injury that is maintained by the definition of ‘serious injury’ in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within paragraph (a) of the definition.”
[5] Transport Accident Act 1986 (Vic)
[6] [2011] VSCA 110
[7] As his Honour then was
[8] Transport Accident Commission v Kamel [2011] VSCA 110 at [65]-[66]
3Turning from those principles to a brief chronology.
4Ms Trenerry was born in January 1994. Between 1997 and 2005, she was the subject of sexual abuse at the hands of her maternal grandfather. She completed school to the end of year 10 and then commenced a hairdressing apprenticeship.
5Between 2010 and 2013, she completed a hairdressing apprenticeship. In June 2013, her son, Hudson[9], was born. She deposed that between 2013 and 2017, she worked as a hairdresser from home, as well as being an executive assistant for her uncle on a part-time basis of about 20 hours per week. She also deposed to being fit and healthy, with a particular love of socialising with her friends.
[9]A pseudonym.
6On 21 March 2017, Ms Trenerry was involved in the subject motor vehicle accident. In that accident, she was driving a Range Rover. It was struck on the driver’s side door in what is described as a “T-boning” incident. The impact trapped her legs within the vehicle. She was taken by ambulance to the Alfred Hospital where she spent two weeks and then transferred to Epworth Brighton Rehabilitation Centre for a week or so.
7Ms Trenerry then returned home. She commenced physiotherapy.[10] She attempted to return to work in September 2017. She worked at Crown Casino for about two months and then as a waitress at the Moose Café for about four months for three hours per day. She deposed that her condition did not improve through 2017 with physiotherapy, so in January 2018, she started treatment with an osteopath, Ms Lena Stocks-Ramsay. I pause to note at this point that CT and x‑ray scanning for the lumbar spine and cervical spine were normal and showed no particular cause for ongoing symptoms of pain, peripheral numbness and tingling in the arms. Mr Charles Flanc, who examined Ms Trenerry in April 2018 as part of a joint medico-legal examination, concluded that as the radiology was unremarkable, he considered that she had developed a chronic pain syndrome with a non-organic basis.[11] She was also complaining of a number of psychological symptoms and Dr Nathan Serry, a medico-legal psychiatrist, at this point considered that she had post-traumatic stress disorder, adjustment disorder and depression.[12]
[10]Plaintiff’s Court Book (“PCB”) 5, at paragraph [13]
[11]PCB 54
[12]PCB 66
8Her affidavit deposed to her worsening condition at the start of 2018. She ultimately came under the care of a psychologist, Ms Merril Winney in March 2018. She commenced seeing Ms Winney on a weekly basis thereafter.[13]
[13] PCB 26
9On 2 October 2018, Ms Trenerry consulted with Dr Olivia Ong a treating pain specialist. Similar to Mr Flanc, Dr Ong considered that she had a whiplash type injury which had caused central sensitisation and chronic widespread pain.[14] Dr Ong noted that she was taking Endone, two times every second day, Nurofen daily, and was unable to work.[15] Ms Stocks-Ramsay considered that she had developed a chronic fascial cervical strain.[16] She was also sent by her solicitors at the time to see Mr Russell Miller, a medico-legal orthopaedic surgeon, in November 2018. He also noted that she was on Panadeine Forte, Voltaren and occasional Endone for flare-ups of pain,[17] and that she was having difficulty lifting weights more than 5 kilograms[18] and difficulty driving long distances.[19] I interpolate to note that Mr Miller has seen Ms Trenerry repeatedly over the years. On the question of whether her condition stems from an organic or a non‑organic basis, he ultimately concluded in his latest report of 10 February 2022 in the following terms: [20]
“It is simply not possible to fully disentangle the organic and non-organic components in cases such as this, but it remains my view that there remains an organic component to the presentation.”
[14] PCB 40
[15] PCB 41
[16]PCB 78
[17] PCB 124
[18] PCB 128
[19] PCB 128
[20]PCB 158
10At around this time, in about October 2018, Ms Trenerry also established a business by the name of Beautify[21] Pty Ltd (“Beautify”), a beauty salon. I will return to Beautify later on.
[21]A pseudonym.
11Ms Trenerry deposed to remaining predominately off work during 2019. She saw Associate Professor Richard Stark, a medico-legal neurologist in July 2019. He had a similar diagnosis to that ultimately reached by Mr Miller; while he considered Ms Trenerry had sustained a soft tissue injury as a result of the motor vehicle accident, he considered that the persistence of pain was from both organic and psychiatric causes.[22]
[22] Defendant’s Court Book (“DCB”) 7
12As her pain remained during 2019, she came under the care of Dr Ilonka Meyer, a pain specialist, in mid-2019.[23] Dr Meyer conducted a ketamine infusion in September 2019. Ms Trenerry did not respond well to the treatment. Afterwards, she complained of widespread chronic pain, particularly in the neck and low back.[24] After the ketamine infusion, she reduced her medication intake substantially. She now takes Nurofen and on occasion Panadeine Forte.[25]. When Mr Miller last saw her in January 2022, he considered that she had a fair prognosis given that she had come off most medications.
[23] PCB 93
[24]Dr Kennedy, PCB 117, and Mr Miller, PCB 132
[25] PCB 140 Mr Miller 11 January 2022
What is the Plaintiff’s claimed physical condition that causes impairment?
13I consider this the starting point for the analysis, as required by Kamel.[26] The question compels me to the answer that the current physical condition that is said to cause impairment is a chronic pain syndrome. I make this finding on the basis of the reporting of Mr Flanc,[27] Dr Ong,[28] Associate Professor Stark,[29] Dr Kennedy,[30] Dr Meyer,[31] Mr Miller[32] and Ms Stocks-Ramsay.[33] Dr Kostos uses slightly different terminology, being that of fibromyalgia,[34] but I prefer the preponderance of evidence. In particular, the reporting of Mr Miller is useful because it is the reporting over three different occasions and nearly four years. It has more substance, I consider, than a report from a doctor who has seen Ms Trenerry on only one occasion for medico-legal purposes. Dr Ong’s reporting also refers to the development of what she diagnostically terms a “chronic widespread pain syndrome”. [35] Associate Professor Stark reviewed most of the medical material in the matter and formed a similar view to Mr Miller, that the virtually unanimous opinion in this case is that Ms Trenerry is suffering from a chronic pain syndrome, despite the use of different terminology in different reports.[36]
[26] Transport Accident Commission v Kamel [2011] VSCA 110
[27]PCB 54
[28] PCB 42
[29] DCB 7
[30] PCB 120
[31]PCB 97
[32] PCB 157
[33]PCB 101
[34] PCB 91
[35]PCB 42 and 43
[36]DCB 9
What is the predominant cause of the chronic pain syndrome?
14As is required by the Act,[37] and expressed by his Honour Kyrou AJA in Kamel,[38] it now falls to determine the predominant cause of the chronic pain syndrome. As it is Ms Trenerry’s case, she bears the onus of proof to satisfy the Court, on the balance of probabilities, that the predominant cause of her chronic pain syndrome is an organic condition in nature at this stage of the analysis. I find that Ms Trenerry is unable to discharge her burden.
[37] Transport Accident Act 1986 (Vic), s 93(17)
[38] Transport Accident Commission v Kamel [2011] VSCA 110 at [65]-[66]
15I start by noting that there was no structural problem identified by MRI, CT or x-ray after the motor vehicle accident. Similarly, there were no neurological signs present on examination which indicated there was a physiological change which had occurred as a result of the motor vehicle accident. Mr Miller at one point before viewing the radiology considered that there had been a musculoligamentous strain and aggravation of degenerative disease in the lumbar spine.[39] However, this opinion was criticised by Professor Peter Teddy, a neurosurgeon, who considered such attribution of the pain to an exacerbation or aggravation of pre-existing degenerative disease to be unwarranted.[40] Subsequently, Mr Miller confirmed that the radiology did not demonstrate evidence of degenerative disease.[41] It therefore made his opinion of an aggravation of such underlying degenerative disease unclear. He still was of the opinion that an aggravation of the underlying condition was possible even though the scan did not show underlying degenerative disease. I consider this unlikely. While Mr Miller is correct that the absence on the scan of degenerative disease does not mean that it was not present, it makes it more unlikely, as in Professor Teddy’s opinion. I prefer that opinion and consider that there has been no structural physiological change occasioned by the motor vehicle accident.
[39] PCB 127
[40]PCB 148
[41] PCB 157
16Next the majority of the evidence suggests that the chronic pain syndrome is caused by both organic and non-organic factors. Most practitioners are unable to venture an opinion as to what is the predominant cause. Mr Flanc considers that it is predominantly non-physical, but his reporting was from early on in her condition.[42] A more balanced view is that expressed by Mr Miller who, as I have noted, states that he is unable to determine the predominant cause.[43] This is similar to Associate Professor Stark’s opinion,[44] I accept both these practitioners’ opinions. To the extent that there is opinion going the other way, it is that from Ms Stocks-Ramsay.[45] While she is a treating practitioner, she is an osteopath and not as well qualified to comment as an orthopaedic surgeon and neurologist, as both Mr Miller and Associate Professor Stark are. I put her opinion to one side.
[42] PCB 54
[43]PCB 158
[44] DCB 7
[45]PCB 78 and PCB 101
17On these facts I am unable to make a determination as to the predominant cause of the chronic pain syndrome. In those circumstances, Ms Trenerry is unable to satisfy her burden in accordance with the principles laid down in Kamel[46] to establish that she has a physical injury, being the chronic pain syndrome, in accordance with paragraph (a)[47] of the definition under which she proceeds. Her claim fails at this hurdle.
[46] Transport Accident Commission v Kamel [2011] VSCA 110
[47] Transport Accident Act 1986 (Vic), s 93(17)(a)
18Even if I were wrong about that and found that the chronic pain syndrome was predominantly caused by an organic condition, I consider Ms Trenerry’s claimed impairment consequences do not rise to the level required to be considered serious. This is because I am not in a position to accept large parts of her evidence. The Defendant squarely put Ms Trenerry’s credit in issue. Having considered the evidence in her four affidavits and that given in Court, I find much of it inconsistent, contradictory and unreliable. I find that I am unable to accept her evidence as to the impairment consequences she alleges as a result of the physical injury. This is for the following reasons. First, Ms Trenerry alleges that, as a result of her physical injury, she has been unable to return to work as a beautician, model, hairdresser or executive assistant. She said she worked in these roles prior to the motor vehicle accident.[48] She was taken to her summary of taxation returns.[49] They showed the following:
2014/2015 = $14,742;
2015/2016 = $0;
2016/2017 = $0.
[48]PCB 4, at paragraph [8]; PCB 7, at paragraph [29]
[49]PCB 156
Ms Trenerry was asked why her returns showed minimal to no income in the years prior to the motor vehicle accident. She answered that the work as an executive assistant was for her uncle and he paid in kind – food, clothing and paying her utilities.[50] As for her beautician and modelling work, she simply stated that she was paid and told her accountant about these figures, but he chose not to put them into the returns. In submissions, Ms Trenerry’s counsel submitted that as she likely earned under the $18,200 threshold in the 2016/2017 years, it was not necessary to state the figure earned in the return.[51] This was an unmeritorious submission. I reject it. Plaintiff’s counsel cited no provision of the Income Tax Assessment Act1936 or 1997 (Cth) in support of the proposition nor any authority. As Defendant’s counsel submitted, the issue of the tax assessable is one for the Australian Taxation Office after a declaration by the taxpayer of what they have actually earned in the financial year. In this case, over two years, Ms Trenerry had declared, by signing the statutory declaration on the return, that she had earned nothing. Her affidavit material implied strongly to the contrary.
[50] T7, L31 – T8, L1
[51] T98, L9-15
19Next, she was taken to a business she began in about October 2018 named Beautify, a salon providing cosmetic treatment. Just pausing there. In her first affidavit, sworn February 2019, she had deposed that after the motor vehicle accident, her physical condition did not improve and, in fact, worsened by January 2018. [52] That worsened condition persisted throughout 2018 on the evidence she gave in that affidavit. In that circumstance, the Defendant put to Ms Trenerry that in her February 2019 affidavit, it was more than curious that she had failed to mention the fact that she had started a beauty salon in October 2018 – a time when she was still having significant treatment and complaining in her affidavit of significant ongoing problems. I consider this of itself to be a significant omission from the February 2019 affidavit. Ms Trenerry had never run a business of this size and nature before. Beautify hired retail space, had store branding, a social media presence and employees. It was a genuine small business, yet none of this was disclosed in the February 2019 affidavit – which was sworn only four months after Beautify opened. It is also telling that Ms Trenerry did address the issue of her work post the motor vehicle accident in this affidavit. She disclosed failed attempts at work at a café and Crown Casino. Then she deposed:[53]
“Currently I am working about 1 to 2 hours per week at a salon which belongs to a good friend of mine who knows of my injuries. I am basically working behind the reception.”
That was all she said about her work in the February 2019 affidavit. In actual fact, she must have spent considerable time and effort registering and starting the business.
[52]PCB 5, at paragraphs [13]-[14]
[53] PCB 6, at paragraph [27]
20In the same vein, Ms Trenerry was asked if she worked at Beautify after it began. Her answers were unconvincing. For example, she was asked if the signage on the front, which read “Beautifyby Natasha[54]”, referred to herself.[55] She then was asked if she performed any treatments. She answered that she started doing some treatments a few months after the business began and that she did such a treatment only once every few months.[56] This answer is contradicted by some social media posts. The first is a thank you post regarding her performing a treatment on a patient.[57] The second is that of her shown in advertising material performing treatments. The third contradictory matter comes from a comment which she made to Ms Stocks-Ramsay. Her clinical notes record Ms Trenerry as stating that she was hiring someone to “share the load”.[58] It was put that this was entirely contradictory to what was in her February 2019 affidavit of only working in reception. It was asked rhetorically why someone would need to share the load of reception for a few hours per day, which is what Ms Trenerry had deposed to. There was no convincing answer to this proposition.[59]
[54]A pseudonym.
[55] T18, L10-11
[56] T18, L26-27; T19,L19-22
[57] DCB 193
[58] DCB 72
[59] T36, L26-31; T37,L6-25
21As it was put in combination, the naming of the salon with her name and featuring her in the promotional material, and the hiring of staff to share the load, leads to a conclusion that she was intimately involved in providing treatments. It is also in keeping with common experience that small business owners work in their businesses, particularly in the early years, to keep overheads down. Overall, I accept the Defendant’s submission. I find Ms Trenerry was involved in a working role in the business, either in beauty treatments or reception or social marketing, to an extent much greater than she has deposed to. To what extent is difficult to gauge. It was put that it must have been to a significant degree because Ms Trenerry went on numerous overseas holidays, was driving a two-door Audi in new condition and wore expensive clothes. In fact, Ms Trenerry volunteered that one of the handbags she was seen carrying in some of the video surveillance was valued at $3,000.[60] As with her cars and her overseas trips, she volunteered that these were gifts from a friend.
[60] T58, L15-16
22I cannot place too much weight on the inference that the Defendant asks me to draw; namely, that she was working to such an extent that she was able to afford these things. The evidence does not allow me to make that finding. However, it did lend an air of unreality to Ms Trenerry’s answers that she had not worked substantially since 2015, yet was able to establish a business, hire staff, not work in it, and yet be able to afford all the trappings of her very comfortable material goods.
23Turning to the more concrete matters. I find Ms Trenerry’s affidavit omitted highly significant, pertinent matters and selectively focussed on failed attempts at work so as to leave an impression on the Court of someone largely incapacitated for work when this is not the case, given the likely scale of her involvement with Beautify.
24Further aspects of Ms Trenerry’s work history also came under scrutiny. In mid‑2019, she gave evidence that she did not want to continue with Beautify as she was struggling with it. Her evidence was that through the beginning of 2019, this business was run more and more by a friend. Then in mid-2019, a company called “N & Co”[61] opened. She was asked if it stood for “Natasha & Co”[62]. She denied it.[63] She replied that “N” was her sister’s middle initial.[64] It is not.[65]
[61]A pseudonym.
[62]A pseudonym
[63] T22, L22
[64] T22, L23-26
[65]DCB 325
25The next matters arise from inconsistencies shown from video footage, the reporting of treating doctors and medico-legal practitioners, and Ms Trenerry’s affidavit and viva voce evidence. I note at the outset that the video footage was accepted as showing Ms Trenerry. It was of only a few hours over a few days and presents a limited snapshot into her function. However, I find it showed significant inconsistency. That inconsistency I find is detrimental to her credit and the acceptance of her evidence. It also fatally undermines the reporting of medical practitioners in this case. This is because, where as here, there are no objective signs of physiological change such as demonstrated by radiology, medical practitioners formulate opinion on the basis of symptoms reported to them. I consider that Ms Trenerry’s reporting of symptoms has been inaccurate. In turn this undermines the accuracy of the opinions in a fundamental way. This is another ground on which I deny Ms Trenerry’s application.
26The first inconsistency disclosed by the film relates to Ms Trenerry’s footwear. In her affidavit, she deposes to difficulty wearing high heels which limits her participating in runway shows as a model. [66] The film, however, shows her walking in high heels normally, crossing a street and then, as she accepted, walking several hundred metres next to the Arts Centre Melbourne. In the video surveillance Ms Trenerry does not show any visible signs of discomfort or difficulty. This is directly contradictory to her affidavit.
[66]PCB 6, at paragraph [25]; PCB 7, at paragraph [29]
27The second inconsistency disclosed by the film relates to Ms Trenerry’s claimed fear of the dark. In her first affidavit, Ms Trenerry deposed at paragraph [45] that she “become[s] extremely anxious after dark”.[67] This is contradictory to the film surveillance which shows Ms Trenerry’s voluntarily visiting a friend’s apartment in Southbank after dark. When the above inconsistency was put to Ms Trenerry in cross-examination, she sought to clarify the inconsistency and stated that she is anxious after dark in her own home.[68] Despite making four affidavits, Ms Trenerry did not express this qualification questioned until when in cross-examination. I consider the way the evidence was given and its timing to demonstrate that it was an answer of convenience given in order to attempt to explain a glaring inconsistency. I do not accept the answer. I find that it reflects on the creditworthiness of Ms Trenerry’s evidence.
[67] PCB 9, at paragraph [45]
[68] T72,L7-10
28In her affidavit, Ms Trenerry deposed as to being unable to pick up her son in the following terms: “I have difficulty picking him up and putting him into bed would be beyond me”. [69] In the film, she is shown picking her son up from the footpath and putting him into the back seat of a car. She then does this process in reverse, taking him from the car and putting him on the ground. Her explanation was that this was to avoid him getting his feet wet. She confirmed that her son weighed about 18 kilograms,[70] which I consider a significant weight given Ms Trenerry’s height and build. There is no explanation for this contradiction between the affidavit and film. In cross examination, she sought to say that her affidavit was about picking her son up from a couch and placing him into bed.[71] The explanation lacked believability I find that the affidavit did not provide an accurate picture of her capacity to lift and carry her son.
[69]PCB 8, paragraph 35
[70] T55, L1-2
[71] T55, L14-18
29In her affidavit, Ms Trenerry deposes in the following terms: “The most I can do is take him [Hudson] to the local park in order to kick a soccer ball around with him for a few minutes before I have to sit down.”[72] However, the film shows Ms Trenerry walking normally around streets and at shopping centres for much more than a few minutes. At one point, she spontaneously jogs a few steps. She bends and squats normally. I consider this footage, and the cross examination on it, paint the true picture – that of someone with very few limitations.[73] To this extent, I do not accept Ms Trenerry’s reporting of her limitations to various doctors. To Dr Meena Mittal, a pain specialist who reported on 29 January 2022, she recorded functional limitations of sitting five minutes, standing five minutes, and walking ten minutes.[74] I do not accept this represents the functional restrictions experienced by Ms Trenerry.
[72] PCB 8, at paragraph [35]
[73]Video surveillance from 21 July 2019 at 14:45-15:20 hours
[74] PCB 151
30Ms Trenerry also deposes to reduced social interaction due to back and leg discomfort.[75] The film shows her with girlfriends at coffee shops for lengthy periods of time, or at beauty salons for similar periods. I do not accept her evidence as to social restrictions.
[75] PCB 7-8, at paragraph [34]
31Overall, the state of the evidence in respect of Ms Trenerry’s alleged restrictions leave me unable to rely on the evidence in her affidavit material. This also significantly affects the reporting of doctors who have relied on her statements as to her restrictions.
32I am not able to accept that she is as restricted as, for example, Dr Mittal’s or Professor Teddy’s report.
33In summation, and for the reasons above, I find that:
(a) The evidence is not sufficient on the balance of probabilities to allow a determination as to whether Ms Trenerry has sustained a chronic pain syndrome predominantly by reason of organic causes. This is because of the state of the medical opinion. It is also because the medical opinion here is fatally compromised by Ms Trenerry’s failure to accurately report her symptoms. This means that the ultimate opinions of doctors are not properly founded.
(b) Even if I were wrong and her Chronic Pain Syndrome was organically based, I find the impairment consequences do not satisfy the statutory test. This is because I cannot accept the evidence of what those consequences are from Ms Trenerry or the medical practitioners because I find that Ms Trenerry has not accurately reported her symptoms.
What is the mental disturbance or disorder Ms Trenerry has sustained?
34As will be noted from my above findings as to credit, the accurate reporting of symptoms significantly impacts on the diagnosis made by medical practitioners. This is perhaps more the case with psychological than physical injuries because so much of the diagnosis is dependent on an accurate reporting of symptomatology.
35At its highest, Ms Winney, her treating psychologist, has diagnosed her with PTSD, depressive disorder, and anxiety.[76] She had 25 counselling sessions from March 2018 to October 2021, a period of 3.5 years.[77] During this time, she took no medication for her mental state. As I have found she started a business, employed staff and travelled overseas in this period, it tells against a disabling mental disorder. On the basis of the film, I found she was able to walk in heels, spend time at the shops, socialise and drive. She interacted with her son on what seemed to be a normal basis. None of these matters are alluded to in Ms Winney’s diagnosis. I consider this undermines her opinion completely, and I do not accept it. It leaves the Court in a position of being unable to determine the exact condition Ms Trenerry suffers from. Her paragraph (c)[78] claim must fail.
[76]PCB 110
[77]PCB 107-113
[78] Transport Accident Act 1986 (Vic), s 93(17)(c)
36Further, even if Ms Winney’s diagnosis was accepted, the impairment consequences do not rise to the level where they could be considered severe. I would repeat my comments above that the video surveillance shows Ms Trenerry engaging in a range of activities, and in none of those was she visibly affected by either a physical or mental disorder. In fact, quite the contrary. For these reasons, I would reject her claim on this basis also.
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