Uzun v Transport Accident Commission
[2021] VCC 289
•16 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-04406
| DONER UZUN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 November 2020; 22 and 23 February 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 16 April 2021 | |
CASE MAY BE CITED AS: | Uzun v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 289 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – physical and psychiatric injury – co-morbid conditions – unreliability of the plaintiff’s evidence
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr J Angenent | Zaparas Lawyers |
| For the Defendant | Mr D Masel SC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff, Mrs Doner Uzun, was born in Turkey in 1950. Her background and medical history is relevant – particularly a long-standing obsessive cleaning disorder (“OCD”) – which I will discuss in more detail later in these reasons.
2This is an application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”) in which the plaintiff claims to have suffered a “serious injury” as a consequence of a motor vehicle accident that occurred on 21 February 2014 (“the accident”).
3The plaintiff claims to have suffered a ‘serious injury’ by way of a “serious long-term impairment or loss of a body function”, namely a physical injury to the spine. In addition, she also claims to have suffered a “severe long-term mental or severe long-term behavioural disturbance or disorder”, namely a psychiatric response to the accident. She asserts that one, or the other, or both of those conditions are a “serious injury”. She bears the evidentiary onus to identify the claimed compensable injury and the impairment consequences from such injury.
4By way of summary, I conclude that the plaintiff has failed to discharge her evidentiary onus. She has failed to prove that she suffered a ‘serious injury’, either in respect to a physical or a psychological injury. These reasons set out what has been a tedious task to analyse a considerable amount of difficult, unreliable and inconsistent evidence, particularly the evidence from the plaintiff. An analysis of the whole of the evidence, taken most favourably to the plaintiff, is that as a consequence of the accident she suffered –
(a) the aggravation of degenerative changes in the spine; and
(b)the aggravation of a pre-existing psychiatric condition, with some further features of a post-traumatic stress disorder (“PTSD”).
But, the state of the evidence is such that it does not enable a factual finding as to the extent of any aggravation injury, impairment or impairment consequences. The evidence does not enable a reliable finding in respect to her actual level of activity pre-injury. The evidence does not enable a finding as to the impairment consequences from any compensable injury and as to whether those impairment consequences are ‘serious’.
The Accident
5Before dealing with the applicable legal principles and relevant evidence in detail, it is convenient to deal with the circumstances of the accident because to some extent the plaintiff’s description of it, informs and underpins what is to come.
6In an affidavit sworn 29 January 2019, the plaintiff described the accident as follows:
“On my way home from the allergy clinic on the 21st February, 2014 I was a passenger in a car driven by my husband and we became stationery in the Nepean Highway at traffic lights. All of a sudden I heard a large bang and our car was pushed forward. I hit my head on something on the passenger door. I was in shock. The car which hit us had a bulbar. There was a lot of damage to the back of our car. My husband and the driver exchanged names and addresses and my husband then drove to the police station to report the collision as he did not trust the other driver. I wanted to come home but my husband wanted to check with the police first.”[1]
[1] Plaintiff’s Court Book (“PCB”) 18
7In a referral letter to The Alfred Emergency Department, the plaintiff’s treating general practitioner, Dr Dilanka Hettiarachchi, recorded the accident circumstances as “MVA 5 days ago when the car she was a passenger in was rear-ended. Patient says she hit her head on the left side door panel. Felt dazed for a few minutes but no loss of consciousness”.[2]
[2] PCB 40
8When seen at The Alfred, the accident circumstances were recorded as “patient states being rear-ended 5/7 ago whilst stationary at a red light, by a car of unknown speed. States headstrike into passenger window without loss of consciousness. States driver airbag deployed. States self-extricated and able to drive car home”.[3]
[3] PCB 54
9In August 2018, the plaintiff attended Dr Ales Aliashkevich, neurosurgeon, at the referral of her general practitioner. He records the accident circumstances as “the vehicle was stationary and rear-ended by another car producing significant whiplash injury and impact on her back”.[4]
[4] PCB 68
10In December 2016, the plaintiff attended consultant psychiatrist, Dr Igor Shvetsov, at the referral of her general practitioner. In a letter to the general practitioner dated 23 December 2016, Dr Shvetsov records the accident circumstances as “she was a passenger in a car driven by her husband. Their car was smashed behind by a minibus, while being stationary at an intersection”.[5]
[5] PCB 70
11Next, the plaintiff attended a psychologist, Ms Semra Durmaz. In a report to the plaintiff’s solicitors dated 15 August 2017, Ms Durmaz records the accident circumstances as “she was a front-seat passenger while her husband was driving on the Nepean Highway. She said that her husband stopped at the red lights and immediately the van behind them hit their car. She said that the collision was so strong that she hit the left side of her head, shoulder, hip, and leg as a result of the impact”.[6]
[6] PCB 99
12The accident occurred when a vehicle driven by Mr James Tiddy collided with the rear end of the vehicle in which the plaintiff was the front-seat passenger. The plaintiff’s reporting of the accident, broadly speaking, is that it was a significant accident with sufficient force to cause her to strike her head on the left side of the vehicle.
13Mr Tiddy provided an affidavit dated 15 November 2020.[7] In that affidavit, he does not describe his speed or the force of the accident. He does, however, exhibit a photograph taken by him depicting the damage to the vehicle in which the plaintiff was a passenger. That photograph depicts a Mitsubishi sedan with a significant indentation to the lower bumper, in particular immediately below the number plate. Without knowing the composition of the bumper bar, it is speculation as to what force was required to cause that amount of damage, but obviously some force was involved to cause the damage depicted in the photograph. In other words, this accident was more than a “love tap”, but by the same token, the photograph clearly demonstrates that the accident was not such that it caused the whole of the back of the plaintiff’s vehicle to be “smashed in”.[8]
[7] Defendant’s Court Book (“DCB”) 137
[8] Report, Associate Professor Peter Doherty dated 27 September 2020, DCB 6
14In short, the plaintiff’s description of the accident is unreliable and that highlights a major issue in this case, namely, her reliability as a witness. As will be discussed, she is generally an unreliable witness.
The Nature of this Proceeding
15As previously mentioned, this is a serious injury application pursuant to s93 of the Act.
16The plaintiff was represented by Mr Richards QC and Mr Angenent of counsel. Through her counsel, she submitted that she had suffered a serious injury within the meaning of s93(a) of the Act, namely, injury to the spine, described as the aggravation of cervical and lumbar spondylosis. Alternatively, the plaintiff relies on the definition within s93(c) of the Act described as aggravation of anxiety and depression and of development of PTSD. In closing submissions, it was said that the cause of the impairment and consequences to her is “primarily predominantly a physical case”.[9]
[9] Transcript (“T”) 228, Lines (“L”) 6-7
17The defendant was represented by Mr Masel SC and Mr Pinkstone of counsel. The defendant submitted via its counsel that the plaintiff has a very longstanding and deeply entrenched chronic pain syndrome in play before and after the accident and that the plaintiff’s psychiatric presentation and any loss of function that she currently exhibits is explained by her psychiatric condition and therefore the application falls to be determined under s93(c) of the Act. Further any psychiatric condition caused or contributed to by the accident is not “severe”. Alternatively, if the Court was to find that the plaintiff’s complaints are best understood on the basis of a physical injury, the defendant submitted that such an injury is not “serious”.
The Issues to be Determined
18The issues to be determined in this application are:
(a)the credit/reliability of the plaintiff;
(b)whether the plaintiff’s physical complaints have a physical or psychiatric basis, or both;
(c)the plaintiff’s pre-accident medical condition and level of function;
(d)the plaintiff’s post-accident level of function.
The Credit/Reliability of the Plaintiff
19The credit of the plaintiff is critical to the determination of this application. I have already concluded that her description of the accident circumstances is unreliable. For the further reasons that follow, I find her evidence in general to be unreliable.
20The plaintiff gave evidence via an interpreter. She has very limited English-language skills. She has limited formal education. I accept that giving evidence, particularly via Zoom, is an unfamiliar process for her. At times she seemed overwhelmed by the process. Nevertheless, her evidence as a whole was difficult to understand. Her answers during cross examination were often argumentative, difficult to follow and on many factual matters simply wrong, or unreliable. Her evidence raises issues as to her credit, but more particularly as to her reliability. The result is that her evidence must be carefully scrutinised and analysed by reference to such objective evidence as is available.
21The plaintiff was challenged in cross examination[10] on the evidence in her affidavits, what she has told medical practitioners and the contents of medical records. I conclude that cross examination successfully impugned the reliability of her as a witness. I do not propose in these reasons to set out all of the cross examination, but to illustrate the point, the plaintiff was taken to the clinical records of Dr Alisha Selleck, a general practitioner who spoke Turkish and with whom the plaintiff consulted from approximately late 2008. As an example of the thrust and effectiveness of cross examination, Dr Selleck’s clinical record of 8 May 2013 was put to the plaintiff. Dr Selleck recorded that the plaintiff was then anxious; panic attacks in public places; agoraphobia; and that there was a need to see a psychologist. When that history was put to her, the plaintiff asserted that the doctor’s note was wrong and that she had never said anything like that.[11] This was a theme of the plaintiff’s evidence. When confronted with unhelpful evidence she refused to make concessions and either said she could not remember or that the record was wrong.
[10] Cross examination was lengthy, but appropriate, in all the circumstances.
[11] T180, L23-30
22As will become clear, and unavoidably repetitious, there are numerous examples where the plaintiff was taken to relevant medical records and her oral evidence was either that she had no memory, or that what had been recorded by the medical practitioner was wrong. I accept that medical practitioners from time to time make errors in clinical records, but it is highly unlikely that errors explain the difference between the medical records of several medical practitioners and the plaintiff’s own evidence. In light of my conclusion that she is an unreliable witness, I prefer the evidence as contained in clinical records as to the plaintiff’s pre-existing medical conditions and her conditions post the accident.
The Evidence in Clinical Records
23It is a difficult job to try and accurately piece together the plaintiff’s pre-accident medical condition. Her medical history is scattered through records of various clinics. There are also gaps in the medical records that are in evidence. The tendered records do not cover periods of the plaintiff’s life. It is a tedious but necessary task to set out some of the relevant entries.
(i) Queen Victoria Medical Centre
24The plaintiff has a longstanding obsession with cleanliness, seemingly caused by an incident when a toilet pipe burst in an apartment complex in Turkey and covered her in excrement (‘the toilet incident’).[12] In her first affidavit, the plaintiff said that she could not get that incident out of her mind and that she could get upset if things were not clean and ordered.
[12]Plaintiff’s affidavit, sworn 29 January 2019, PCB 16
25The plaintiff attended the Queen Victoria Medical Centre from 7 May 1982, where it was recorded there was a history of “thirteen years’ of obsession re-cleanliness, including multiple hand and arm washing, 5-6 times after contact with children at toilet and showering “until the hot water runs out”.[13] She had developed dermatitis as a result of her frequent cleaning. It was recorded (accurately) that those symptoms had commenced after the toilet incident. A diagnosis was made of Obsessive Compulsive Neurosis with Secondary Depression[14] and she was referred to the Family Psychiatry Unit. Antidepressants were prescribed.
[13] DCB 69
[14]DCB 69
26The plaintiff attended at the Queen Victoria Medical Centre over an approximate eight-year period. She had contact with psychiatrists at that clinic. There were attempts to prescribe antidepressants, but the plaintiff either could not tolerate those medications without side effects, or she could not see the need to take them. The notes record numerous somatic symptoms due to an underlying psychiatric condition. Those notes conclude with an attendance at the Adult Psychiatry Clinic on 9 August 1990,[15] when the plaintiff was seen in the company of her husband and young son. The final note described her as appearing cheerful and calm and that she was coping quite well at home, although she still worried about little things.
(ii) Dr. Garland
[15]DCB 72
27Next in time, the defendant tendered medical records from the clinic of Dr Jon Garland. Those records commence 6 September 2000.[16] They record the plaintiff attending for various ailments over many years, including for the prescription of Imodium for a longstanding gastric condition; asthma; longstanding urinary frequency,[17] and on occasions for lumbar pain and pains in other body parts, such as her arms and elbows.[18]
[16]DCB 195
[17]DCB 213
[18]DCB 225
28Dr Garland treated the plaintiff regarding her longstanding OCD condition. In June 2009, he recorded problems with aches and pains still and he considered a diagnosis of Fibromyalgia, as well as difficulty sleeping.[19] By May 2010, he had arranged for her to have a CT scan of her lumbar spine, and she was referred for physiotherapy in Bentleigh while still waiting on a rheumatology appointment.[20] In September 2010, a general practitioner at Dr Garland’s clinic records a long discussion with the plaintiff about a history of severe leg cramps.[21] In November 2010, Lyrica was prescribed as per a rheumatology suggestion.[22]
[19]DCB 259
[20]DCB 267
[21]DCB 270
[22]DCB 275
29Skipping forward, for the sake of brevity (the notes speak for themselves). The plaintiff attended Dr Garland on 27 March 2013, with a history that she had been knocked to the ground on the footpath outside her home by a child on a bicycle on 25 March 2013 (‘the bike incident’). Dr Garland records injuries to the right calf, left buttock, left elbow and right knee, for which paracetamol was prescribed.[23]
(iii) Dr. Selleck
[23]DCB 284
30As previously mentioned, from late 2008, the plaintiff had consulted Dr Selleck, as her treating general practitioner,[24] although there is a period of time where attendances with Dr Selleck overlap with Dr Garland. The defendant tendered the clinical records from Dr Selleck, commencing 10 December 2008. Those records note various ongoing aches and pains, similar to those recorded by Dr Garland. What follows is a summary of some of the records by Dr Selleck. The notes speak for themselves and this is not meant to be an exhaustive summary beyond what is necessary for these reasons.
[24]DCB 136
31In January 2012, Dr Selleck records a mental health consultation, the plaintiff was fixated in the past, life – death of son – issues with husband, and that when she became upset she became verbally abusive and angry.[25] In June 2012 the doctor records ongoing urinary urgency and also ongoing emotional issues and a need for counselling. There was a discussion about a referral to a Turkish psychologist.[26] Psychological counselling was again discussed on 27 July 2012.
[25]DCB 132
[26]DCB 130
32Then on 1 August 2012, the plaintiff attended after she had been pushed down in a department store (probably Kmart, although there was a reference in the evidence to Target). On 30 August 2012 there is recorded issues including anxiety. On 4 February 2013 there is an attendance for numerous conditions, including tingling – pins – needles – feelings on legs (cramping), urinary frequency, fluctuating blood pressure, bilateral elbow problems and gastric symptoms. On 22 March 2013, Dr Selleck had a mental health consultation with the plaintiff, where Lovan (an anti-depressant) had been prescribed, but not taken by the plaintiff, as she was worried about side effects. Strategies were discussed for her to cope with stress, but the plaintiff refused a referral to a Turkish-speaking psychologist for counselling. On 12 April 2013, Dr Selleck records a long consultation. Amongst other things, at that consultation lower back pain was discussed, as well as the results of a 2011 CT scan. The doctor records a suggestion to try Lyrica again. The plaintiff’s mood at that stage was described as “less anxious”.
33Next, the plaintiff attended Dr Selleck on 8 May 2013 for what is described as multiple issues;[27] the bike incident, and that she was getting anxious and panicky in public. There was a note of lower leg cramps, the CT scan (probably the 2011 scan) demonstrating spinal canal stenosis resulting from the L4-5 disc pathology and a suggestion of neurogenic bladder and neurosurgery review. A referral letter was written by the doctor to Mr Armin Drnda, neurosurgeon.[28]
[27]DCB 124
[28] DCB 62
34Next, on 24 June 2013[29] there was an attendance for fifty-nine minutes, at which the plaintiff’s OCD was discussed; the plaintiff was waiting for a neurosurgical review (which it appears she never attended) and that lumbar spinal canal stenosis was producing neurogenic bladder symptoms. Dr Selleck recorded the OCD thinking and that the plaintiff could not use the toilet at public places. Various traumatic events were discussed and again the plaintiff was reluctant to go on anti-anxiety tablets due to concerns with side effects.
[29]DCB 123
35On 10 July 2013, multiple issues were discussed[30] including that she could not tolerate the antidepressant Pristiq. Mild osteoarthritis changes in the fourth middle finger joint were discussed, as well as ongoing left elbow pain.
[30]DCB 123
36On 6 August 2013 symptoms in the left middle finger and left arm were recorded. In addition at that attendance[31] it was recorded that the plaintiff had pain all the way up to her neck – left side of head. She was upset as she had an accident when a young girl rode over her in the bike incident.
[31]DCB 122
37On 30 August 2013, the notes record multiple problems, including left finger pain, left knee pain, tennis elbow and an allergy problem. On 6 September 2013, there is an attendance for ongoing left knee pain. On 2 October 2013, Dr Selleck consulted with the plaintiff for forty-four minutes, including for the OCD, a referral to The Alfred allergy clinic and that bilateral knee x-ray had revealed no obvious degenerative changes. There was also an ongoing problem with the left hand and high blood pressure.
(iv) A Brief Summary of Pre-Accident Clinical Records
38Pausing here, the records of both Dr Garland and Dr Selleck speak of a lady who had widespread complaints of pain affecting various parts of her body; problems with bowel and bladder control; asthma; and intermittent lumbar spine problems. In addition, the records reveal that the plaintiff was seen from time to time for both her ongoing OCD and also for symptoms of anxiety associated stressful events in her life, including the incident at Kmart, and the bike incident. They paint a picture of a lady with considerable physical and psychological difficulties.
(v) The Evidence of the Plaintiff
39The plaintiff makes an attempt to deal with her past medical history in the first of four affidavits she swore in support of this application. It is only the first affidavit that sets out any evidence as to her pre-accident life and medical history. That affidavit deals with the toilet incident and the plaintiff’s reaction to it. In particular, she says in that affidavit that:
“… Since the episode when the toilet pipe exploded I can get upset if things are not cleaned and ordered. I wash dishes, wipe benches and within a few minutes feel the need to check that there is no residue and can later wipe the benches again as otherwise do not feel comfortable. I clean the floor with hot soapy water and then rinse it with other water. I feel the urge to do this often. I feel I have to do it to get it properly cleaned.”[32]
[32] Plaintiff’s affidavit sworn 29 January 2019 at paragraphs [3] and [6] at PCB pages 16 and 17
40Whilst that evidence is accurate, it is also incomplete, when compared to the medical records. It downplays the extent of her OCD. That affidavit makes a passing reference to some pre-existing musculoskeletal disorders. It also makes passing reference to pre-existing anxiety, in that she says:
“… I have also suffered symptoms of anxiety. I took anti-anxiety medication for a while in about 1990.
…
I believe I have always been an anxious and insecure person … .”[33]
[33] Plaintiff’s affidavit sworn 29 January 2019 at paragraphs [3] and [6] at PCB pages 16 and 17
41Once again, that evidence is to some extent accurate, but incomplete and seriously downplays the extent of the plaintiff’s pre-existing health problems, in particular her longstanding treatment for anxiety and various somatic symptoms.
42The thrust of the plaintiff’s limited evidence regarding her pre-accident life is that before the accident she had some problems with OCD; some symptoms of anxiety; and some musculoskeletal complaints, but overall she lived a full and busy life, including attending to her home, undertaking domestic duties, attending shopping and socialising with friends and the Turkish community. But that scenario, based on the objective evidence in medical records, is an oversimplification and one that I do not accept. This makes it difficult to determine her true level of functioning and activity before the accident, which of course makes it equally difficult to determine what, if any, additional impairment might flow from the accident (whether that be from a physical or a psychological injury).
(vi) The Lay Evidence
43In addition to her own affidavits, the plaintiff tendered lay affidavits from her husband and one of her sons. Those affidavits also suffer the same vice of not fully and accurately setting out her pre-accident medical history and conditions.
44The plaintiff’s husband, Mr Mustafa Uzun, swore an affidavit on 17 February 2020.[34] In that affidavit he says his wife had excessive cleaning habits since the day they were married. That is the extent of any comment regarding the plaintiff’s pre-accident OCD or medical conditions. To describe his evidence as inadequate would be an understatement. Pausing here, the husband’s affidavit does not assist in the task of identification of the injury claimed to have been suffered in the accident. He says that “[s]ince the accident Doner tells me she has her body pain all over and she can only do so much to take care of her own personal needs”.[35] That is vague evidence and does not assist in the identification of either a physical or psychological injury from the accident or the impairment consequences from such claimed injury.
[34] PCB 33
[35] PCB 34
45Her husband goes on to say that she cannot engage in various domestic activities “because her whole body is in pain”.[36] At the risk of repetition, insofar as her physical injury goes, the plaintiff does not (and indeed, cannot) rely on her “whole body”.
[36] PCB 34
46The plaintiff’s son, Mr Ozgu Uzun, provided an affidavit dated 7 October 2020.[37] He also glosses over the pre-accident history by describing her, pre-accident, as having “extreme cleaning habits”. Again, at the risk of repetition, that does not fully and accurately deal with the plaintiff’s pre-accident situation. In any event, his affidavit is also as unhelpful as his father’s affidavit, as he also says that any restriction for daily activity is due to his mother saying “she had body pain”. The lay affidavits are vague, and while supportive of the plaintiff’s case in a broad sense, they do not assist in the resolution of the issues in this case.
[37] PCB 37
47In circumstances where the affidavits are also unreliable and the plaintiff’s evidence is difficult to understand, it is an impossible task to determine her true level of pre-accident function and to then try and identify what actual injury may have been suffered in the accident – if any – and what additional impairment may have been suffered from any compensable injury as identified.
48Indeed, at this stage the application can be disposed of because the plaintiff simply fails at the first evidentiary hurdle, namely the lack of clear evidence for the task of identification of compensable injury – either a physical or a psychiatric injury – let alone at the further evidentiary hurdles of identification of the impairment and consequences from any identified compensable injury (if one could be identified). The unreliability of the ‘before and after’ evidence prevents a factual finding in respect to any injury suffered in the accident, particularly when the evidence of the plaintiff is balanced against the objective and reliable evidence in clinical records.
49It is tempting to cease here and dismiss the application. But for completeness I will deal with the balance of the evidence.
(vii) Medical One Moorabin
50Turning again to the medical records, after the accident, the plaintiff attended at Medical One Moorabbin. Again, what follows is not an exhaustive summary of the records and reports from that clinic as, again, they speak for themselves. Over the years she has been seen by several doctors at that clinic. By 16 June 2017, she was under the care of Dr Lydia Wood, who wrote a referral to Mr Craig Timms, neurosurgeon. In the referral letter, Dr Wood says that since the accident the plaintiff described experiencing intermittent pain over the entire left side of her body, which included her left eye occiput, back and limbs.[38]
[38] PCB 45
51The plaintiff eventually attended Dr Ales Aliashkevich, neurosurgeon, at the referral of Dr Wood. By letter dated 2 August 2018, Dr Aliashkevich reported back to Dr Wood that he had examined the plaintiff that day and obtained a history of significant pain affecting her neck and left more than right arm, associated with numbness on the whole left side of her body and tingling sensations. The plaintiff reported chronic pain in the lower back and pain radiating into her legs, left more than right. Dr Aliashkevich reported that the plaintiff was suffering chronic and progressive symptoms affecting her neck and lower back and further scans were needed to determine treatment options. His report, insofar as I can understand it, does not otherwise set out what his accident-related diagnosis is, or his opinion as to the cause of the plaintiff’s reported symptoms of pain. She did not return to see him, or to have the further scans.
52On 26 February 2020, the plaintiff was seen Dr Jay Yazdian. By report dated that day, Dr Yazdian set out the plaintiff’s medical history,[39] but the report is essentially just an extract of various clinical records, recording a range of complaints, and makes it impossible to extract any accident-related diagnosis from the report.
[39] PCB 60
53That is the extent of treating medical opinion. It paints a picture of a lady with a complicated medical history and records numerous physical and psychological ailments both before and after the accident, without a clear diagnosis.
The Remaining Medical Evidence
(i)The Physical Examiners
54Turning next to the medico-legal examiners who have conducted a physical assessment of the plaintiff, she was seen by Mr Charles Flanc and he provided a report dated 9 October 2017.
55Mr Flanc’s report is of little assistance, as it is considerably out of date. In any event, he obtained an incomplete history that the plaintiff had no pre-existing conditions and was symptom-free before the accident.[40] He then notes a catalogue of conditions including headaches and left facial pain; cervical spine; left shoulder; lumbosacral spine, left elbow; left middle trigger finger; upper abdominal discomfort; panic attacks and anxiety. He ultimately opines that the plaintiff likely aggravated pre-existing degenerative change in the cervical spine in the accident, and may have aggravated degenerative disease of the lumbar spine in the accident. He opines that any left shoulder condition was probably present before the accident. His report provides support for the proposition that the plaintiff has aggravated degenerative change in the spine, but that must be read in light of the constellation of symptoms and complaints that he lists, and so, even if the report is taken to assist on the issue of compensable injury, it does not assist on the task of identifying the impairment and consequences from compensable injury.
[40]PCB 130
56Next, Professor Richard Bittar, neurosurgeon, provided several reports regarding the plaintiff, the first of which is dated 18 November 2017,[41] and in which he diagnosed aggravation of cervical and lumbar spondylosis together with left-sided cervicogenic headache.[42] He said that the plaintiff required further investigation, and treatment, including a pain-management program.[43] He also said it appeared that the plaintiff had pre-existing symptomatic conditions affecting her cervical and lumbar spine before the accident, but she could not recall such episodes, and that:
“It is therefore difficult to provide an apportionment with a high degree of certainty. On the basis that she did not have any significant ongoing symptoms affecting her neck or lower back after 2011, then it would be my opinion that the transport accident has been responsible for the vast majority of her current neck and lower back related symptoms.”[44]
[41]PCB 151
[42]PCB 153
[43]PCB 154
[44]PCB 155
57Professor Bittar next provided a report, dated 17 December 2017.[45] For the purpose of that report he was provided with relevant radiology. Having reviewed that radiology, he repeats his opinion regarding diagnosis and need for further treatment. He next provided a short report, dated 6 June 2018,[46] which is confined to comment about an MRI of 7 February 2018.
[45]PCB 156
[46]PCB 162
58Professor Bittar reviewed the plaintiff and then provided a more detailed report, dated 25 November 2020.[47] In that report he essentially obtained the same history as his earlier reports, and repeats his diagnosis. Relevantly, he comments that the plaintiff had radiological investigation of her spine in 2011, “although she denies experiencing any significant symptoms following that”. Professor Bittar goes on to say:
“[I]t would be prudent to obtain clinical records from her general practitioner in order to determine the nature and frequency of any back or neck related symptoms as well as headaches prior to the transport accident.”
[47]PCB 280
59He repeats his view that the plaintiff required treatment from a pain-management specialist.[48]
[48]PCB 284
60Professor Bittar then provided a short urgent supplementary report dated 19 February 2021,[49] after he was eventually provided with relevant clinical records and asked for further comment. It was a notable omission from his earlier reports, and in particular his report of 25 November 2020, that he did not have access to those records. In his final report, of 19 February 2021, he simply says that:
“Having reviewed all of the abovementioned materials, there is no reason to alter the opinions expressed in my previous report in relation to diagnosis, causation, treatment recommendations, and prognosis.”
[49]PCB 286
61I have already set out in these reasons some extracts from the clinical records which reveal widespread complaints by the plaintiff over many years, including complaints in respect to symptoms in her spine, and particularly the lumbar spine, and referred symptoms into her legs, culminating in the referral to Mr Drnda in 2013. The defendant submitted that Professor Bittar’s final report, of 19 February 2021, is flawed by the failure to disclose a proper path of reasoning; namely, why a review of the clinical records does not alter his previous opinions. I accept that submission. It is unsatisfactory that Professor Bittar does not explain why a review of the relevant records does not cause him to change his opinion. There is no path of reasoning as to why a consideration of relevant clinical records did not cause him to alter his opinion. The failure to disclose a proper path of reasoning to his final opinion impacts on the weight that I place on the opinions in his reports, especially in respect to impairment and impairment consequences referable to the accident.
62Next, the plaintiff tendered a report from Dr Hazem Akil, neurosurgeon, dated 9 December 2020.[50] Dr Akil’s report to some extent sums up the issues in this case. Firstly, he had a history that in the accident the plaintiff lost consciousness at the time, which is not accurate. Secondly, he has a completely unsatisfactory past medical history, recording only that the plaintiff had a past medical history of hypertension.[51] Thirdly, in respect to any accident-related diagnosis, he says that:
“[T]here is a significant psychological element that resulted because of the accident; however, there is also a significant organic base to her complaint.”
[50]PCB 275
[51]PCB 276
63He then goes on to opine that the plaintiff suffered the aggravation of cervical spondylosis and lumbar spondylosis in the accident. In respect to prognosis, he says that:
“A combination of organic and psychological effect of the accident and given the length of time that she has been complaining of the symptoms, I conclude that her prognosis is poor.”[52]
[52]PCB 277
64He also opined that the plaintiff should be reviewed by a pain specialist as well as a psychologist/st.
65Dr Akil’s opinion is not dissimilar to Professor Bittar and perhaps Mr Flanc, in that he opines that the plaintiff has suffered the aggravation of cervical and lumbar spondylosis (degenerative change) in the accident. But of course he did not get a proper pre-accident history from the plaintiff. He appears to have been provided with relevant radiology, but not the relevant clinical records. Even if I accept his opinion as to the diagnosis - and similarly the opinions of Professor Bittar and Mr Flanc – that, in the accident the plaintiff suffered the aggravation of cervical and lumbar spondylosis, Dr Akil’s report does not assist in the task of identifying the impairment or consequences flowing from the claimed compensable injury.
66Turning to the medical reports relied on by the defendant, the plaintiff was seen by Mr Kevin Siu, neurosurgeon, at the request of the defendant, on 28 January 2020. By a report dated 29 January 2020,[53] he noted abnormal illness behaviour.[54] He noted current symptoms were then of pain in the whole of the left side of her body, which he described as more of a psychological manifestation.[55] In a supplementary report of 25 January 2021, following a re‑examination of the plaintiff,[56] he was provided with considerable medical records, radiology and reports regarding the plaintiff pre and post-accident. Having reviewed that material, he opined that:
“In summary, Ms Uzun sustained, at the very worst, a minor soft tissue injury but more likely suffered no injury as a result of the road traffic accident. Her symptoms are not based on any physical injury. There is no question that she is suffering from panic attacks and anxiety.”
[53]DCB 21
[54]DCB 24
[55]DCB 25
[56]DCB 26a
67A summary of the medical material regarding physical injury, including the medico-legal opinion, is as follows. Firstly the plaintiff failed to provide a proper history to the doctors. Secondly, at its highest, the opinion in medical reports supports a finding that the plaintiff suffered the aggravation of pre-existing spondylosis (degenerative change) in the cervical and lumbar spine. Thirdly, the medical opinions do not identify what the current impairment and consequences are from that aggravation. The plaintiff must establish that the extent of any aggravation is, of itself, “serious” in accordance with the principles in Petkovski v Galletti.[57] On an analysis of the evidence of physical injury, she has failed to do so. Accordingly, and bearing in mind that the plaintiff put her case principally as a case based on a claimed compensable physical injury, I conclude that the evidence does not establish the extent, if any, of the aggravation injury to the spine that was suffered by the plaintiff in the accident. There is nothing from treating practitioners that provides a diagnosis. At the highest, the medico-legal evidence supports a finding that the plaintiff suffered the aggravation of degenerative change in her spine. But the evidence as a whole fails to identify what, if any, impairment is currently referable to such injury and what the impairment consequences are. Accordingly, the application based on a ‘serious’ physical injury to the spine is not made out.
(ii) The Psychiatric Examiners
[57][1994] 1 VR 436
68Turning next to a review of the medical opinions regarding the plaintiff’s psychological/psychiatric condition. I will start with a review of the treating practitioners and then turn to the medico-legal opinions. But again for the sake of brevity, this is not an exhaustive summary and it should be remembered that the plaintiff put her case principally based on a physical injury. At the outset, similar to the case based on physical injury, an analysis of the evidence of psychiatric injury is made difficult by the confused and incomplete history provided to the treating and medico-legal practitioners.
69In December 2016, the plaintiff was referred to consultant psychiatrist, Dr Shvetsov. In a letter, which I set out in full, written back to the treating general practitioner, Dr Shvetsov said as follows:
“At the initial interview, Doner reported about high level of anxiety and frequent panic attacks. She described being very emotional and oversensitive lately. She complained about difficulty to concentrate and being very forgetful. She suffered from global insomnia. Doner denied feeling suicidal.
According to Doner, she was involved in a car accident two years ago. She was a passenger in a car driven by her husband. Their car was smashed behind by a minibus, while being stationary at an intersection. She didn’t receive any major injuries, apart from bruising of her left cheek and left foot toe injury. Since the accident, she became very anxious, developed fear of enclosed spaces. She couldn’t go to a car for 12 months and remains hyper-vigilant, while in a car now. She experiences flashbacks about the car accident 2-3 times a day. She avoids being driven through the location of the car accident, because it makes her very anxious. She is also getting very anxious when crossing any intersection. She complained about nightmares relating to the car accident. Doner became socially isolated and doesn’t go out. She was doing obsessional cleaning and hand washing 12 months ago, but it is not problematic lately.
She experienced a depressive episode 35 years ago, after she fell off a moving train. She was on an antidepressant for seven years and her condition improved. She claimed being off antidepressants for 27 years. She was traumatized in 1993, when her son committed suicide, but didn’t require medications. She has also suffered from PTSD in the past, relating to a car accident. Unfortunately, Doner was very anxious during the interview and had difficulty to specify the timeframe of depressive episodes in the past, frequently leaving her chair and getting out of the office to ask her husband for details.
Doner grew up in Turkey. She has seven siblings, who still live in Turkey. She attended primary school at a village where she grew up. She got married at the age 18 and they moved to Australia when she was 23 year old. They have four children. Husband worked as a factory worker. She has never worked, looking after the children.”[58]
(sic)
[58] PCB 70
70Next, in a report dated 23 October 2017,[59] Dr Shvetsov again sets out the history and treatment provided by him. He said there was a direct correlation between the transport accident and the plaintiff’s mental health problems[60] and that he was not optimistic about the long-term prognosis for her mental health.[61] Dr Shvetsov provided further reports dated 11 April 2019,[62] 21 January 2020[63] and 21 September 2020.[64] By the last of those reports, seemingly for the first time, he had been provided with the clinical records of Dr Wood. Based on a review of those notes, Dr Shvetsov stated that the plaintiff had been “suffering from anxiety for many years”,[65] a history that appears not to have been previously provided to him. He said that the plaintiff’s current presentation was then consistent with PTSD.[66] He was then specifically asked whether the accident was a cause of psychological/psychiatric injury. He answered that question as follows:
“As I mentioned above, Mrs. Uzun had been suffering from anxiety symptoms prior to the car accident 2014. Her anxiety manifested in the form of excessive fixation on her physical health, preoccupation with cleanliness and occasional panic attacks. However, despite all the symptoms, she was quite functional, being able to deal with daily home chores, visit friends and g0 to the public places. Her presentation dramatically changed since the car accident.”[67]
[59] PCB 72
[60] PCB 77
[61] PCB 78
[62] PCB 80
[63] PCB 85
[64] PCB 90
[65] PCB 92
[66] PCB 94
[67] PCB 95
71He concluded by stating that he was pessimistic about the plaintiff’s long-term prognosis.[68]
[68] PCB 96
72Dr Shvetzov is supportive of the plaintiff. However, despite ultimately being provided with Dr Wood’s clinical records (which includes the notes of Dr Selleck), he still does not, based on my assessment of the evidence, have a full pre-accident picture. Accordingly, I am unable to accept his conclusion that the plaintiff’s presentation “dramatically changed” after the car accident. Further, his diagnosis of PTSD appears to be based on the plaintiff’s description of the accident to him, namely an accident that occurred “when a minibus had driven into the back of the car on high speed, causing significant damage”.[69] That flawed description casts doubt on the diagnosis.
[69] PCB 72ꟷ73
73Turning next to the treating psychologist Ms Durmaz, she has also provided a number of reports, the first of which is dated 15 August 2017,[70] and as already discussed, records an incorrect history of a significant accident.[71] Further, Ms Durmaz is yet another example of a practitioner who, without being critical, does not manage to obtain a full history from the plaintiff.[72]
[70] PCB 98
[71] PCB 99
[72] PCB 99
74Ms Durmaz then provided a report dated 15 May 2019, in which she largely repeats the history and conclusions in her first report. In a third report of 23 January 2020,[73] Ms Durmaz again repeats the early history and conclusions, but she does say that the plaintiff:
“… reported that she did not receive any psychological and psychiatric help prior to the incident. She received psychiatric help at the Monash Health many years ago related to her OCD symptoms, but ceased treatment after a few sessions.”[74]
[73] PCB 109
[74] PCB 113
75Ms Durmaz goes on to say: “In my opinion she had developed her current symptoms, except her OCD symptoms, after the accident” [75] and that the plaintiff requires ongoing psychiatric treatment.[76]
[75] PCB 113
[76] PCB 114
76In her fourth and final report dated 28 September 2020, Ms Durmaz again records the plaintiff’s ongoing description of psychological/psychiatric symptoms. She says that the plaintiff is likely to be “left with a significant level of permanent psychological problems in the foreseeable future”.[77]
[77] PCB 119
77Ms Durmaz has no doubt diligently and sympathetically treated her patient for her numerous psychological complaints, but she does not have, in my view, a full and proper assessment of the plaintiff’s physical and psychological difficulties pre-accident. In particular, her conclusion that the plaintiff’s accident-related psychological condition has a significant impact on the ability to enjoy a full range of social and recreational activities and also to attend to daily activities, must be assessed in light of what is revealed in the plaintiff’s medical records and a consideration of the whole of the evidence. While those records may not be relevant to Ms Durmaz in her capacity as a treating psychologist, the fact that she has not had the benefit of them and is unaware of all that had occurred in the plaintiff’s life before the accident, means that I cannot accept her conclusion as to the extent that the accident has caused psychological impairment and consequences to the plaintiff.
78Next, turning to medico-legal opinion, the plaintiff was seen by Dr Nigel Strauss, consultant psychiatrist, on 20 December 2017, and he produced a report of that date.[78] He obtained a history that in that accident the plaintiff “was not injured”.[79] He took a history that the plaintiff hit her head on the door and may have been momentarily unconscious, and that she was shocked and dazed. He took a history that before the accident the plaintiff was “independent and used to catch public transport and she coped well with life”.[80] Importantly, Dr Strauss records that the plaintiff initially told him that she had no past psychiatric history. He then states that:
“… but when I read to her extracts from the medical information provided to me she admitted vaguely that she had had some problems in the past but she said they were not serious and they recovered and resolved quickly.”[81]
[78] PCB 180
[79] PCB 182
[80] PCB 182
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79Dr Strauss found the plaintiff to be a:
“… garrulous woman preoccupied with symptoms that she believes were caused by the accident a few years ago. She was difficult to talk to and she often answered questions slightly inappropriately. She was preoccupied with her symptoms. She moved freely and sat comfortably.”[82]
[82] PCB 184
80Dr Strauss, in his analysis, stated, in my view correctly, that:
“This is a difficult case to comment upon because this woman has longstanding psychiatric problems and at times has rejected treatment … .
I accept that she was involved in a relatively minor car accident in 2014 which precipitated a deterioration in her overall psychiatric state … .
…
Some of her injuries are consistent with the stated cause.
…
Her prognosis must be guarded and I suspect that this vulnerable woman will always suffer from psychiatric problems partly as a result of the 2014 accident.”[83]
[83] PCB 187
81Dr Strauss reassessed the plaintiff on 16 January 2020 and provided a report of that date.[84] For the purposes of that further appointment, he had available the plaintiff’s first affidavit and various other medical reports, including relevant clinical records. He goes on to say that he believes the plaintiff has:
“… always been prone to anxiety and the accident she experienced in 2014 continues to exacerbate her pre-existing problems. She also shows continuing evidence of traumatisation as a result of the 2014 accident.
Her situation is stable and her prognosis guarded.
According to her account of events her level of activity remains significantly reduced as a result of the effects of the accident as does her quality of life.”[85]
[84] PCB 194
[85] PCB 199
82Based on my assessment of the whole of the evidence, Dr Strauss has provided a fairly balanced report, but even so, based on the plaintiff’s presentation to him, his report does establish to what extent the accident has exacerbated the plaintiff’s pre-existing problems. He also has relied on the plaintiff’s account of events insofar as he opines that her level of activity has been significantly reduced as a result of the accident. Ultimately, while his report provides support for a diagnosis of a psychiatric injury from the accident, it does not enable an assessment of the impairment, or impairment consequences, referable to such ‘injury’ and whether or not such are “severe”.
83The plaintiff was then referred to Dr Nathan Serry, consultant psychiatrist, at the request of her solicitors. He assessed the plaintiff on 22 September 2020 by video link and provided a report of that date.[86] He also records a history suggestive that the accident was a major collision, and that the plaintiff’s vehicle was rear-ended without warning and that she struck her head, was shocked and was aware of some pain, but was unsure if she blacked out. He reports that the plaintiff’s husband was able to exit the vehicle. All of that is suggestive of a major accident. Insofar as past psychiatric history, Dr Serry obtained a history that the plaintiff had longstanding pre-existing symptoms of anxiety with an associated OCD. But based on the materials he was provided, he noted the plaintiff appeared to have had very significant grief-associated anxiety and depression coinciding with the suicide of her son in 1993.[87] Ultimately Dr Serry opines that:
“… the injuries sustained by the claimant in the transport accident have exacerbated a deterioration in her pre-existing psychiatric conditions. The accident appears to have accelerated the natural trajectory of such pre-existing conditions”.[88]
[86] PCB 204
[87] PCB 209
[88] PCB 213
84Dr Serry was provided with a number of medical reports and clinical records as listed in his report.[89] He diagnoses longstanding pre-existing generalised anxiety disorder and longstanding OCD. In respect to the accident he diagnosed a PTSD and somatic symptom disorder with predominant pain, persistent and of moderate severity.[90] He ultimately opines that the plaintiff’s life had been quite substantially compromised as a result of the aggravating impact of the subject accident.[91] But again that conclusion is not, in my view, open on the evidence. The fact that the collision was not as major as the plaintiff suggests it was, again casts doubt on the diagnosis of a PTSD. Regardless, the difficult and uncertain nature of the plaintiff’s evidence to Dr Serry as to her pre and post accident level of psychiatric function means I cannot accept his conclusion that the plaintiff’s life has been “quite substantially compromised” by the psychiatric condition referable to the accident.
[89] PCB 204
[90] PCB 213
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85Finally, the plaintiff has been seen for medico-legal purposes by Associate Professor Peter Doherty at the request of the defendant. The first of his reports is dated 27 September 2020.[92] He was provided with considerable medical reports and records regarding the plaintiff, as set out in pages two or three of his report. He records that he specifically asked the plaintiff whether she had any psychiatric complaints, symptoms, or psychiatric treatment before the accident. He records her answer to that question as:
“She told me over the years she has never seen a psychologist or a psychiatrist.
She said to me that she has never had worries, fears, phobias, or the like, ever.”[93]
[92] DCB 4
[93] DCB 11
86Pausing here, that history is clearly wrong. As noted by Associate Professor Doherty, that unreliability means that “the relevance of the transport accident to the development or persistence of symptoms, should be cautiously taken”.[94] He opines that:
“… the effect of the transport accident is to focus the attribution of her symptoms to it, rather than seeing her symptoms as a continuation of what was occurring before the transport accident, coloured by the accident.”[95]
[94] DCB 12
[95] DCB 13
87Associate Professor Doherty opines further that “symptoms of traumatisation persist but not the presence of a diagnosable PTSD condition”[96] and that “[t]he presentation now, is not dissimilar to how it was before the transport accident”.[97] Then after a review of relevant clinical notes he states that:
“There is a diagnosable OCD disorder, a generalised anxiety disorder with agoraphobia, and a somatic symptom disorder with the dominant pain (somatisation disorder) prior to the transport accident.
…
The prognosis was most unfavourable before the transport accident.
…
There was a significant impairment in daily activities prior to the transport accident.”[98]
[96] DCB 13
[97] DCB 13
[98] DCB 18
88Associate Professor Doherty re-examined the plaintiff on 14 January 2021. In a report dated 27 January 2021,[99] he answered a further question regarding his opinion as to the appropriate psychiatric diagnosis. He answered:
“I have examined the claimant on two occasions. On the second occasion and armed with the information from my first psychiatric examination of her, the diagnostic issues have become clearer, though no clearly defined reliable diagnosis of a psychiatric condition can be made.”[100]
[99] DCB 19a
[100] DCB 19g
89Further, Associate Professor Doherty said that:
“The second examination of the claimant clouds the diagnostic considerations. She presents now as a disorganised person, disorganised in her thoughts, with fearfulness, suspiciousness, paranoid feelings, delusional beliefs, and a strong suggestion of cognitive impairment.
Her history is unreliable.”[101]
[101] DCB 19i
90Next, he goes on to say:
“In my opinion, the presentation of the claimant cannot be explained as being due to or significantly caused by the transport accident. The nature and severity of the transport accident would not cause the clinical presentation, as it is now.”[102]
[102] DCB 19i
91Associate Professor Doherty’s reports sum up the difficulties in this application, namely trying to get anything like an accurate picture of the plaintiff’s level of function before and after the accident in circumstances where her history is unreliable, disorganised and difficult to follow. Associate Professor Doherty appears to have been provided with as much information as is available, and certainly he was provided with as much information as any medico-legal examiner. I accept his opinion regarding the plaintiff’s psychiatric condition and presentation. His opinion does not support the plaintiff’s application for a “serious injury” based on any alleged psychological/psychiatric injury suffered in the accident.
92Therefore, a summary of the psychiatric opinion is, similar to the physical opinions, that while the plaintiff may have suffered some form of psychiatric injury as a consequence of the accident (although on balance I prefer the opinion of Associate Professor Doherty that she did not), even if she did suffer such an injury, the evidence does not enable a conclusion to be made as to the impairment and impairment consequences referable to such injury. As such, she has failed to discharge her evidentiary burden.
Conclusion
93This application first commenced before me on 16 November 2020. On that day and after her counsel commenced to open her case, the plaintiff ultimately made an application to adjourn the hearing to obtain clarifying medical opinion from Professor Bittar.[103] The need for that adjournment highlights an initial issue in this application, namely whether the plaintiff’s current presentation is due to a physical injury, a psychiatric condition, or both. To be able to answer that question it is necessary to have a full and accurate picture of the plaintiff’s life before and after the accident, which was not the case in this application.
[103] In fact, not only did she obtain reports from Professor Bittar, but she also obtained the report of Dr Akil and she swore a further affidavit.
94The plaintiff failed in her affidavits and in the ‘witness box’ to provide a full and accurate picture of her life before and after the accident. She is an unreliable witness. The resolution of this application has involved attempting to make sense of the plaintiff’s evidence, particularly her oral evidence in cross-examination, together with an examination of the 287 pages of her Court Book and the 288 pages of the Defendant’s Court Book. The Court was not assisted by the inadequate nature of the plaintiff’s affidavit material or the way in which she gave her evidence. To determine this application based on the whole of the evidence has involved a tedious exercise, as reflected by the length of this judgment. Ultimately the plaintiff’s application must fail for the reasons set out. She has failed to discharge her evidentiary burden. The application will be dismissed.
95I will hear from the parties as to the appropriate costs orders.
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