Williamson v Vorbau and Transport Accident Commission
[2011] VCC 1431
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI- 08-03032
| ANN WILLIAMSON | Plaintiff |
| v | |
| MARCIA VORBAU | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14, 15, 16, 17 and 18 November 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Williamson v Vorbau & Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1431 |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport accident – serious injury – multiple injuries – whether any one
or more of the injuries was a “serious injury” as defined.
LEGISLATION CITED – Transport Accident Act 1986, s.93
CASES CITED – Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172; Humphries &
Anor v Poljak [1992] 2 VR 129; Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511;
Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249
JUDGMENT – Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Connell and | Simon Legal |
| Ms J Sun | ||
| For the Defendants | Mr M Titshall SC and | Solicitor to the Transport |
| Ms H Donmez | Accident Commission | |
| HIS HONOUR: |
1 Ann Williamson (“the plaintiff”), was involved in a motor vehicle accident in Melbourne on 24 March 2005 (“the accident”). In the accident, she alleges that she has suffered injury to her lumbar spine, left shoulder, left arm, right knee and right leg, and impairment of respiratory function and lungs. In addition, she alleges that she has suffered from stress, anxiety and depression.
2 In this application, the plaintiff seeks leave to commence proceedings claiming damages in respect of those injuries.
3 Her right to do so is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, the plaintiff must satisfy the Court that one or more of her injuries is a “serious injury”.[1]
[1] Section 93(6) of the Act
4 The term “serious injury” is defined in s.93(17) of the Act as:
“(a) Serious long-term impairment or loss of a body function; or … (c) Severe long-term mental or sever long-term behavioural
disturbance or disorder; … .”
5 In order to succeed in her application, the plaintiff must satisfy the Court that the consequences of one or more of her injuries are “serious”. In order that an injury be considered “serious”:
(a)
the consequences of the injury must be serious to the particular applicant;
(b)
those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)
the question to be asked is whether the consequences of the injury, when judged by comparison with other cases in the range of possible impairments or losses can fairly be described as at least “very considerable” and more than “significant” or “marked”.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
6 In accordance with the Particulars of Injury filed with the Court dated 18 May 2010,[3] the injuries alleged to constitute a serious injury were set out as follows:
“The plaintiff has suffered injuries arising from the transport accident on or about 24 March 2005, suffering permanent loss of function and impairment of her lumbar spine and low back, left shoulder and left arm and right knee and right leg and long term impairment of the plaintiff’s respiratory function and lungs together with a severe long term mental and behavioural disturbance or disorder arising from the stress, anxiety and depression suffered as a consequence of the transport accident and injuries suffered in the transport accident on 24 March 2005.
The plaintiff relies upon Sections 93 (17)(a) and (c) of the Transport
Accident Act 1986.”
[3] Plaintiff’s Court Book (“PCB”) 5
7 The plaintiff submits that all of the injuries referred to above are “serious” injuries within the meaning of the definition of that term in s.93(17) of the Act.
8 The defendants submit that none of the injuries are “serious” as defined, and further, that the accident was not a cause of those injuries.
9 The proceeding was heard over five days up to 18 November 2011. On 17 November 2011, Senior Counsel for the defendants completed his closing address. On 18 November 2011, Counsel for the plaintiff commenced his closing address but shortly after, indicated that he would prefer to provide submissions in writing, to which request I acceded. Those submissions were received on 22 November 2011 in accordance with my directions.
10 The written submissions related, in part, to injuries additional to those set out in the Particulars of Injury referred to above; namely, the plaintiff’s neck, both shoulders, both arms and both knees.
11 At no time during or since the hearing has any application been made to expand or add to the Particulars of Injury referred to. I do not consider that the plaintiff should be permitted to do so at this time. Had such application been made at some earlier time, the defendants might have wished to arrange for further medical examinations and/or opinions. Cross-examination might have involved these additional complaints of injury. Doctors might have been called for cross-examination.
12 Accordingly, I propose to determine the matter on the basis of the injuries alleged to have been suffered by the plaintiff in the accident and which are identified in the Particulars of Injury referred to above.
13 The issues to be determined in this application are:
(a)
whether the consequences of any of the injuries suffered by the plaintiff can be fairly described as “at least very considerable”;
(b)
insofar as an injury is an aggravation of a prior injury or condition, can the consequences of the aggravation be fairly described as “very considerable;
(c)
whether the motor vehicle accident which occurred on 24 March 2005 was a cause of any of the plaintiff’s injuries.
Background
14 The plaintiff is currently aged sixty-five years. She was born in India and came to Australia in 1958 when aged twelve. She was educated to age sixteen and thereafter had a number of jobs performing various types of office work, in the main consisting of secretarial and receptionist duties.
15 The plaintiff married, had children and, at various times when her children were young, she did not work.
16 The plaintiff tendered a curriculum vitae prepared prior to 2005.[4] It set out employment positions held by her back as far as 1975. It indicated that, in the decade leading up to the accident, she had worked in various part-time jobs, including at a dental clinic from April 1996 to May 1997; as an administration assistant with the National Boys Choir from February 1998 to December 1999;[5] and as a receptionist at a medical clinic from May 1999 to May 2001.[6] All of these positions were part-time. It was common ground that, in the years leading up to 2003, her income from personal exertion had been low.
[4] PCB 207
[5] In evidence, the plaintiff indicated she had worked part-time with the choir for a longer period
[6] PCB 207-8
17 From January 2003 to December 2004, the plaintiff worked 15 hours per week at Tintern Girls School in Ringwood as a part-time boarding house mistress.
18 In January 2005, she commenced in a similar part time boarding house position with St Hilda’s Girls School at the Gold Coast in Queensland. Some years earlier, she had separated from her second husband, and the former matrimonial home in Melbourne was in the process of being sold. Her son resided on the Gold Coast and it was convenient for her to move there.
19 The plaintiff’s position at St Hilda’s Girls School commenced in January 2005. She was employed pursuant to a twelve-month contract ending in December 2005. She worked five shifts per week, generally from 3.00 pm to 10.30 pm. She was in charge of some fifty Year 11 students in the boarding house. On occasions she was on duty overnight. On these occasions she had sleeping accommodation on the same floor as the girls. On other nights she had her own accommodation on a different level. This separate accommodation was provided for her but only for the first two terms of the school year. After that time, it was expected that she would find her own accommodation.
20 The plaintiff said in evidence that the head of the boarding house had, before the accident, asked her whether she might be interested in working beyond the twelve-month contract period. The plaintiff had indicated that she would be interested, although indicated a preference for caring for primary school age children. Nothing had formally been offered with regard to working beyond December 2005 as at the date of the accident.
21 On 7 February 2005, a few weeks after the plaintiff had commenced work, she injured her foot in the course of her employment. She was off work for a few days and received medical treatment. She returned to work and performed her usual duties up until the end of term one in late March 2005. She then travelled to Melbourne in order to prepare for the settlement of the sale of her former matrimonial home. This was to involve removing all her possessions from the matrimonial home.
22 It was on the day of her arrival back in Melbourne on 24 March 2005, as the plaintiff travelled in from Melbourne Airport towards her home, that the accident occurred. She had been picked up from the airport by the first defendant, a friend.
23 Prior to the accident, the plaintiff had suffered from a number of injuries, illnesses and conditions. I shall address these problems when dealing with the injuries the subject of this proceeding.
The Injuries Alleged to be “Serious” and their Consequences
24 I shall deal with each of the injuries separately. I consider that I am not permitted to aggregate those injuries in determining whether the consequences of them are such as to constitute a serious injury.[7]
Lumbar Spine
[7] Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511 at paragraphs [23], [26] and [27]
25 The plaintiff had suffered from low-back pain for the past twenty years, since working with State Insurance. In 1999, she had been treated for facet joint injuries and right sciatica. This had occurred during a period when she had worked as a receptionist for a Dr Judith Riseley.
26 A medico-legal report from Mr M A Khan, orthopaedic surgeon, indicated that she had had x-rays of her lumbar spine in May 2002[8] (three years before the accident) showing multi-level changes at the L3-4, L4-5, and L5-S1 levels . Dr Alex Stockman, rheumatologist, described these x-rays as showing marked facet joint arthritis at L3-4, L4-5, and L5-S1 associated with mild disc height reduction at L3-4 and L4-5.[9] The plaintiff said she was unable to recall these x-rays.
[8] PCB 56
[9] PCB 46
27 Upon admission to St Vincent’s Private Hospital in October 2002 (about two- and-a-half years before the accident) for breast reduction surgery, the plaintiff admitted providing hospital staff with a history of chronic back pain. She admitted to being prescribed the analgesic Capodex for her low-back pain at that time.
28 In August 2004 (about seven months before the accident), on admission to the Bellbird Private Hospital for a gastroscopy, the plaintiff admitted to providing hospital staff with a history of low-back pain. She agreed that she had been prescribed Capodex and anti-inflammatory medication for her low- back at that time.
29 The plaintiff had been referred to an orthopaedic surgeon, Mr Peter Dodd, in mid-March 2005 (a few weeks before the accident). There was no evidence tendered from Mr Dodd.
30 The ambulance report[10] indicates that a history was taken on the day of the accident of chronic back pain (amongst other prior conditions to which I shall later refer). The report records that the plaintiff was, at that time, taking Capodex.
[10] Defendants’ Court Book (“DCB”) 330
31 No evidence was tendered at trial from medical practitioners who had treated the plaintiff for her low-back condition prior to the accident.
32 Post-accident radiology of the lumbar spine consisted of the following:
(a)
X-rays taken on the day of the accident of the thoraco-lumbar spine were normal according to The Royal Melbourne Hospital report.[11] Dr Stockman considered that they showed degenerative changes in the mid-lumbar region and no fractures;[12]
(b)
A whole body bone scan was performed on 18 April 2005 (about three weeks after the accident) at the request of Mr David Booth, orthopaedic surgeon.[13] It was reported as showing probable lower lumbar spine “arthrosis” involving the facet joints at L4-5 and L5-S1. I understand that term as referring to degenerative disease. In his report, Mr Booth made no mention of the bone scan as being relevant to any injury to the low- back;
(c)
An MRI scan taken on 8 May 2006 revealed moderate disc bulging at L3-4, L4-5 and L5-S1 associated with degeneration of facet joints. There was no significant nerve root compression;
(d)
X-rays taken on 8 September 2006 showed narrowing of the L2-3 disc. The L5-S1 disc was reduced in height;[14]
(e)
A lumbar CT scan and x-rays appear to have been taken in June 2007[15] but reports of these were not tendered;
(f)
X-rays of 13 November 2008 showed extensive degenerative changes involving the facet joints at each level;[16]
(g)
A recent MRI scan taken on 24 October 2011 is reported as showing multi-level degenerative disc disease, facet joint arthropathy, worse at L4-5, and moderate to high grade at L3-4 and L5-S1, with no focally compressive disc prolapse demonstrated.[17]
[11] PCB 23
[12] PCB 46
[13] PCB 24
[14] DCB 90
[15] PCB 49
[16] PCB 63
[17] PCB 93
33 In summary, it is my view that there is no demonstrable post-accident radiological change in the plaintiff’s lumbar spine.
34 The plaintiff was treated by a number of practitioners in relation to her back. I have considered their evidence.
35 The report from The Royal Melbourne Hospital[18] discloses that on the day of the accident, the plaintiff arrived at the hospital in the passenger seat of an ambulance and complained, amongst other things, of exacerbation of lumbar pain. No treatment was provided in respect of it and no injury to the lumbar spine was diagnosed.
[18] PCB 23
36 Dr Angela Sanders had been the plaintiff’s general practitioner since at least 1997. The plaintiff complained to her reasonably soon after the accident of increased low-back pain. She had requested Dr Sanders to refer her to Mr Booth, which was done.
37 In May 2006, Dr Sanders referred the plaintiff to Mr De La Harpe, orthopaedic surgeon, in relation to low-back pain. No evidence was tendered from him.
38 Dr Sanders commented that an MRI scan in 2006 had showed multi-level degenerative disc disease but no neurocompression. She thought this was consistent with x-rays of May 2002.
39 Mr Booth saw the plaintiff as early as April 2005. In his report dated 10 March 2006, Mr Booth[19] said that he had previously seen the plaintiff in relation to her hip and back. He made no further comment about her back regarding her condition before or after the accident. It is not clear from his report when he last saw her, but there is no evidence that he has seen her since that report was prepared, more than five-and-a-half years ago.
[19] PCB 36
40 In a case involving prior symptoms and a need to assess the extent of aggravation of an injury, an orthopaedic surgeon such as Mr Booth, who had seen the plaintiff in relation to her back before and after the accident, would be in an ideal position to provide an opinion as to the degree of change (if any) resulting from the accident. He does not appear to have been asked to provide an opinion on that issue.
41 There was evidence that the plaintiff had four or five cortisone injections in her lower back from Dr Jeffrey (a general practitioner in Queensland).[20] There were two reports from Dr Jeffrey[21] but neither referred to such treatment.
[20] DCB 100
[21] PCB 154 and 200
42 Dr Andrew Muir, a consultant in pain management, saw the plaintiff in December 2009, and again in February 2010. Initially he assessed her for a pain management program at the Victorian Rehabilitation Centre which, he noted, she has completed. At the time of his report (about one-and-a-half years ago), he was waiting to review her following that program.
43 Regrettably, Dr Muir did not set out in his report[22] the history provided to him by the plaintiff regarding her symptoms before and after the accident. Rather, he appears to have been provided with a typed document prepared by her setting out “her narrative”. This document was not attached to the report; nor was it tendered in evidence. Accordingly, I have no knowledge of the history upon which Dr Muir was given and on which he presumably based his conclusions regarding causation
[22] PCB 66
44 In any event, Dr Muir noted the plaintiff complained of widespread pain and stiffness, largely muscular. Importantly, he found a full range of lumbar movement. He noted tenderness over the midline of the lumbar, thoracic and cervical spine and paraspinal muscles.
45 Dr Muir concluded that the plaintiff presented with a widespread muscular pain syndrome. He considered that this was a consequence of the accident. He thought her physical condition reduced her capacity for all forms of physical activity as well as work. He said her long-term prognosis depended on the nature of her progress and treatment. There was no evidence of him reviewing her again since the pain management program.
46 Dr Muir’s view regarding causation of the plaintiff’s widespread pain syndrome are likely, in my view, to have been based largely if not entirely upon the written history provided to him by her. Without knowledge of that history, little weight can be given to that opinion.
47 Anne Power, a physiotherapist in Queensland, saw the plaintiff in late June 2007 following what is described as an acute exacerbation of left low-back and left posterior thigh pain which had resulted in her being admitted to Allamanda Hospital on 14 June 2007.[23]
[23] PCB 48
48 In her report of November 2007 (some four years ago), Ms Power referred to a lumbar CT scan dated 14 June 2007 and a lumbar x-ray dated 13 June 2007. Radiology reports concerning these investigations were not tendered.
49 Ms Power stated that:
“Ann clearly has residual pain in the L) shoulder, L) hip, L) thoracic, L)
TMJ and cervical regions … .
She has good prospects for returning to the work force as a teacher which involve[s] (sic) a variety of movement throughout the day. I do not think she could cope well with a sedentary job.
She is now coping with driving, activities of daily life at home, shopping and walking at the shops. She is careful about lifting and tends to get help from people at home to lift shopping bags. Ann has made progress but still has residual problems which may not resolve.”[24]
[24] PCB 50
50 There was no evidence from the Allamanda Hospital.
51 The plaintiff was originally seen by Dr Alex Stockman, rheumatologist, on a medico-legal basis in February 2007. Later, she was referred to him for treatment by Dr Wallis, general practitioner.
52 In February 2007, Dr Stockman took a history of mild lumbar back pain prior to the accident which had worsened considerably since. At that time, he noted limitation of movement of the lumbar spine in all directions.[25] He thought the degenerative condition of the plaintiff’s lumbar spine as shown in the 2006 MRI was pre-existing, but that it seemed to have worsened since the accident. Dr Stockman was of the view that the main cause of her symptoms was the degenerative condition of her lumbar spine and fibromyalgia. At that time, he thought the cause of the latter condition was unknown but in his view, it could be precipitated by a motor accident.[26] He thought she might be able to return to pre-accident employment on a part-time basis. By late September 2011, he considered her low-back pain and heaviness in her legs was likely to be due to lumbar spondylosis/stenosis. He suspected left radiculopathy. He arranged up-t- date imaging of her spine, which occurred in October 2011. In late October 2011, he injected the disc and facet joints and reported some improvement. He thought the effect of that treatment might not be apparent for another month or so.[27] Accordingly, Dr Stockman has not expressed a current opinion as to whether the plaintiff’s lumbar condition is likely to be permanent or whether improvement is likely.
[25] PCB 46
[26] PCB 47
[27] PCB 71, 96, 97
53 Dr Kenna saw the plaintiff only once, some three months after the accident. He thought she had soft tissue sprain/strain type injuries.[28]
[28] PCB 26
54 In January 2006, Mr Doig, orthopaedic surgeon, considered the plaintiff had aggravated a pre-existing back injury and that it was preventing her from returning to pre-injury duties.[29]
[29] PCB 34
55 In March 2006, Dr Grinwald, physician, was of the view that the plaintiff had aggravated pre-existing degenerative changes in her thoraco-lumbar spine.[30]
[30] PCB 42
56 In September 2008, Mr Khan, orthopaedic surgeon, reported a similar opinion,[31] as did Mr Flaim in July 2009.[32]
[31] PCB 57
[32] PCB 62
57 Mr Fogarty, orthopaedic surgeon, saw the plaintiff in November 2007, May 2009, and October 2010 and came to a similar conclusion.[33]
[33] PCB 78, 83
58 Professor John Hart, orthopaedic surgeon, saw the plaintiff in December 2006 and May 2009. He considered that, in the accident, she had aggravated pre- existing lumbar spondylosis. He found virtually full movements of the lumbar spine save for some limitation of extension, which he thought were due to degenerative changes at the L5-S1 disc and at the posterior facet joints in the lower lumbar spine. He considered that these were pre-existing changes and the aggravating effects of the accident had resolved by the time he saw her in May 2009.[34]
[34] DCB 108.4
59 There is no suggestion in any medical opinion that the plaintiff will have any type of lumbar surgery in the future.
60 The plaintiff swore affidavits in support of this application on 28 July 2006, 15 January 2009 and 2 November 2009. In addition, she had signed statements on 23 June 2008 and 7 July 2009, which statements she confirmed to be true in oral evidence. In none of those affidavits or statements did she mention any pre-existing problems with her low-back. I consider this to be a significant omission given her extensive pre-accident history of low-back pain. In her statement of 7 July 2009, she did purport to disclose her previous medical history but, again, made no reference to her previous lumbar problems.[35]
[35] PCB 14
61 In cross-examination, the plaintiff was shown DVD films. The first film depicted her on the occasion of her sixtieth birthday function on 7 January 2006, about ten-and-a-half months after the accident. She was shown mingling with guests and dancing in what I considered to be a free and unrestricted manner, apparently enjoying herself thoroughly. She appeared to mix easily with a relatively large number of guests. I consider that the film was not consistent with her being in pain.
62 The film (taken by a guest at the party) was taken about two weeks after the plaintiff was examined by Mr Doig at the request of the Transport Accident Commission[36] (“TAC”), four days before she was seen by the psychologist, Ms Denny,[37] and about two months before she was examined by the psychologist, Mr McCaffrey.[38]
[36] DCB 33
[37] DCB 65
[38] PCB 100
63 It is difficult to reconcile the appearance of the plaintiff at her party with the person described by Mr Doig, Ms Denny or Mr McCaffrey.
64 The plaintiff sought to explain her appearance in the film by saying that she had been putting on a brave front at the function and that she had not wanted her guests to know that she was in pain. Further, she said that she paid for it after the party, being forced to remain in bed for three or four days afterwards to recover.[39]
[39] Transcript (“T”) 98
65 I do not accept that evidence. Neither the party nor the need for her to be in bed for three to four days after was mentioned by the plaintiff to Ms Denny or Mr McCaffery shortly after. Nor was the occasion and the allegedly significant aftermath referred to in any of her affidavits or statements adopted by her.
66 The defendants showed further film of the plaintiff taken on 5 October 2009. The film depicted the plaintiff walking freely without a walking stick to and from some shops. About one-and-a-quarter hours later she was seen in a different area walking to her car with what appeared to be considerable difficulty, limping noticeably, using a walking stick, and with her hand on her left hip area. The impression given was that she was suffering pain in her left lower back or hip. About twenty minutes later, the film depicted her walking without a stick or a limp and bending forward deeply on a number of occasions to gather various cuttings from a garden bed.
67 I find that the film shown to the plaintiff was inconsistent with her evidence that she had suffered from significant low-back symptoms from a time soon after the accident, or that her condition was consistent with that described in her affidavits.
68 I find that the plaintiff had suffered from a moderately painful low-back for many years before the accident as a consequence of widespread degenerative disease in her lumbar spine. It may be the case that there has been some aggravation of her lumbar symptoms, but I am not satisfied that she has established that her post-accident condition is much different to her pre-accident condition.
69 Insofar as the plaintiff alleges an aggravation of her lumbar condition, I am required to make a comparison of her pre-accident condition and her current condition in order to determine whether the degree of aggravation amounts to a “serious injury” as defined.[40] This task is made difficult in circumstances where the plaintiff has elected not to call evidence concerning her back from any doctor who treated her low-back prior to the accident. Dr Sanders, her general practitioner before and after the accident, did not give evidence of any such difference in her lumbar condition.
[40] Petkovski v Galletti [1994] 1 VR 436 at 443-4; De Agostino v Leatch & Anor [2011] VSCA 249
70 I am not satisfied that the additional consequences of the plaintiff’s lumbar injury following the accident (if any) could fairly be described as more than “significant” or “marked” and at least “very considerable”.
Right Knee/Right Leg
71 Mr Booth, orthopaedic surgeon, had previously treated the plaintiff for pain in her right knee. In December 2004 (about four months before the accident), the plaintiff underwent an MRI scan of her right knee and a bone scan. She was diagnosed with a horizontal tear in the body of the posterior horn of the medial meniscus, together with a meniscal cyst.[41] X-rays had shown mild osteoarthritic changes.[42] An arthroscopy was performed by Mr Booth on 22 December 2004 and revealed a degenerate inferior leaf of the medial meniscus requiring a fairly major resection.
[41] PCB 36
[42] PCB 38
72 Mr Booth had obviously seen the plaintiff since the accident but it is not clear as to when or on how many occasions. The reference to an arthroscopic examination revealing “significant full and sub total cartilage loss from the patella consistent with degenerate joint disease” is, I consider, a reference to the pre-accident arthroscopy. There was no evidence that she had ever undergone a second arthroscopy in 2005 or 2006.
73 Mr Booth had not been asked to re-examine the plaintiff’s knee or to make a comparison of the condition of it pre and post-accident.
74 The ambulance report noted “minor contusion to bilateral knees”.[43] The report from The Royal Melbourne Hospital made no reference to her knees.[44]
[43] DCB 330
[44] PCB23
75 In January 2006, Mr Doig considered the plaintiff had “stirred up the old injury that she had had to her right knee”.[45] He thought, from a clinical point of view, it seemed to be under reasonable control.
[45] PCB 34
76 In April 2006, Dr Grinwald found mild tenderness over the medial joint line of the knee, no effusion and stable ligaments. He found a normal range of movement. He thought further degenerative changes were likely to occur.[46] He provided no opinion as to the extent (if any) of the contribution of the accident to the plaintiff’s condition or prognosis.
[46] PCB 28-9
77 In December 2006, Professor Hart took a history from the plaintiff that her right knee had been worse since the accident but that she had not been back to see Mr Booth since[47] (although Mr Booth’s report clearly indicates that he had seen her afterwards). Professor Hart found little relevant on examination and, in particular, no effusion, reduced range of movement, ligamentous instability or joint line tenderness.[48] When providing his opinion as to the involvement of the accident in the condition of the right knee, Professor Hart was initially under the impression that the arthroscopy performed by Mr Booth had been performed post-accident. He acknowledged that this was an error in his later report.[49] He did not consider the continuing symptoms in the right knee related to the accident.[50]
[47] DCB 88
[48] DCB 90
[49] DCB 99
[50] DCB 104; 108.4
78 In February 2007, Dr Stockman was given a history of pain in both knees aggravated by kneeling and squatting and that pain in the right knee had worsened since the accident. His only finding on examination was of slight crepitus in both knees. He made no specific finding concerning the right knee. He initially considered her widespread pain related to fibromyalgia[51] but later considered her symptoms were not typical of that condition.[52]
[51] PCB 47
[52] PCB 71
79 In a report dated 23 November 2007, Ms Power, a physiotherapist, referred to an opinion of a Dr Michael Tong that the plaintiff had evidence of patellofemoral joint osteoarthritis.[53] She noted the prior arthroscopy and stated that Dr Tong would have to give an opinion as to whether that condition was a result of the accident or pre-existing. No evidence was tendered from Dr Tong.
[53] PCB 49
80 In September 2008, Mr Khan noted that she had a pre-existing problem with the plaintiff’s right knee and evidence of mild crepitus.[54]
[54] PCB 58
81 In July 2009, Mr Flaim found a full range of movement with normal stability, medial joint line tenderness, and probable osteophytes along the medial joint line.[55] He described this as evidence of osteoarthritic change in the right knee. He gave no opinion as to the extent to which the accident had caused or contributed to that condition (if any).
[55] PCB 63
82 In September 2009, Mr Dunin (apparently as a treating specialist) wrote to the TAC requesting acceptance of liability for an arthroscopy of the right knee. He referred to a recent MRI scan as confirming a tear of the medial meniscus associated with quite a large meniscal cyst anteriorly. He opined that the accident “may well have contributed to her present condition”.[56] There was no further evidence tendered from Mr Dunin as to whether an arthroscopy had been performed by him or as to what it revealed. The report of the MRI scan referred to by Mr Dunin was not tendered.
[56] PCB 65
83 In May 2009, Mr Fogarty was unconvinced that there was any separate injury to the right knee that may have aggravated the joint.[57] In October 2010, his opinion was unchanged.[58] It appears that a further arthroscopy has been performed on the plaintiff’s right knee[59] but there was no evidence as to what it revealed. She reported to Mr Fogarty that her knee felt somewhat better. She maintained she had slight swelling but Mr Fogarty found none.
[57] PCB 81
[58] PCB 86
[59] See Mr Fogarty’s report of 7 October 2010 at PCB 84
84 In a report of 1 April 2009, Dr Jeffrey, the plaintiff’s Queensland general practitioner, said she had been referred to a specialist in relation to her knee.[60] There was no evidence concerning such referral or the opinion of that specialist.
[60] PCB154
85 Dr Wallis, her current general practitioner, made no mention of the right knee in his letter of 18 September 2009.[61] In his report of 15 February 2011, he referred to the recent diagnosis of a medial meniscus injury and the development of a cyst in the plaintiff’s knee. He does not indicate who had made that diagnosis; nor does Dr Wallis indicate that he is aware of any problems that she had with her right knee prior to the accident.
[61] PCB 156
86 In the plaintiff’s evidence as to post-accident problems regarding walking and shopping in her first affidavit sworn in July 2006, she did not refer to her right knee.[62] In her supplementary affidavit of January 2009, she said she had been referred to a Dr Brett Kuhnermann because of severe knee pain. There was no evidence from him.
[62] PCB 7, paragraph 5
87 On the evidence before me, I am unable to be satisfied that the plaintiff suffered any specific injury to her right leg or knee in the accident. I am not satisfied that she has established that the pre-existing injury to her right knee has been aggravated in the accident at all, and not to the extent that the consequences to her of any such aggravation could fairly be described as long-term or as more than significant or marked and at least very considerable.
Left Shoulder/Left Arm
88 Pre-accident, on admission to St Vincent's Hospital in October 2002, the plaintiff admitted to providing a history of chronic pain in both shoulders.
89 In the plaintiff’s oral evidence, she made no reference to left shoulder problems.
90 In the plaintiff’s affidavit sworn in July 2006, she stated she was restricted in her activity as a result of a number of injuries, including shoulder pain, without identifying left or right.[63] In her statement of 23 June 2008,[64] she refers to injuries to both left and right shoulders. In her supplementary affidavit of January 2009, she makes no mention of either shoulder. In her statement of July 2009,[65] she refers to a large number of complaints, including left shoulder pain. In her most recent affidavit, sworn 2 November 2011, she refers to many complaints, including bilateral shoulder pain, with the left shoulder being worse.
[63] PCB 7
[64] PCB 13
[65] PCB 15
91 The reports of Dr Kenna, Mr Doig, Mr Booth, Dr Grinwald, Dr Stockman and Dr Muir disclose no finding of injury to the left shoulder or arm in the accident.
92 The report from The Royal Melbourne Hospital[66] contained no reference to any complaints or findings of left shoulder or arm pain. However, in his report dated 13 May 2009, Mr Fogarty notes that The Royal Melbourne Hospital “record” refers to a clinical examination on the day after the accident as showing slight tenderness at the left shoulder.[67] On the basis of that finding, he was prepared to accept that that there had been a slight soft tissue injury to the left shoulder in the accident.[68] In his report of October 2010, he thought the symptoms and slight restriction of movement resulted from a partial tear of the supraspinatus part of the cuff of muscles in the shoulder.[69] He thought the prognosis was fair to good.[70] Mr Fogarty does not appear to have been provided with any radiology reports of x-rays or ultrasound examinations of the left shoulder.
[66] PCB 23
[67] The “record” was not tendered in evidence.
[68] PCB 81
[69] PCB 86
[70] PCB 87
93 The evidence of left shoulder radiological investigation consists of:
[71] PCB 57
[72] PCB 89
(a) The reference in the report of Mr Khan[71] of an ultrasound of 24 September 2007 suggestive of a full-thickness tear of the rotator cuff tendon. No radiology report was tendered in evidence; (b) A radiologist’s report of an x-ray and ultrasound of 19 March 2008[72] which did not disclose any tear of the supraspinatus tendon. Rather, it showed a suggestion of biceps tendinopathy; (c) An x-ray of 24 October 2011 reported as showing mild osteoarthritis at the glenohumeral and AC joint. 94 The latter x-rays were requested and examined by Dr Stockman, who reported that they showed bicipital tendonitis which fitted the plaintiff’s symptoms. He injected the longhead of biceps with steroid in late October 2011, less than a month before the hearing. He expressed no view as to the relationship (if any) between that condition and the accident, or as to the likely prognosis of it. the plaintiff gave no evidence concerning that treatment or as to whether it had improved the shoulder.
95 Professor Hart considered that the left shoulder problems requiring injections were not related to the accident.[73] When he examined her in December 2006, the plaintiff made no complaint of any left shoulder pain to him. In May 2009, he took a history from her that she had complained of left shoulder pain in June 2007 to Dr Raju in Queensland, that Dr Raju had arranged the September 2007 ultrasound, and that Dr Jeffrey had injected the shoulder on three occasions.
[73] DCB 104
96 In his report of 1 June 2009, Dr Jeffrey made no mention of the left shoulder.
97 On balance, I accept that the plaintiff suffers from left biceps tendinopathy with some slight restriction of movement and some discomfort. She gave no evidence as to how her left shoulder condition was affecting her daily activities. I am not satisfied that the injury to her left shoulder has resulted in consequences for her that are more than significant or marked or which could fairly be described as very considerable. Further, I am not satisfied that she has established that the accident was a cause of any injury or further injury to her left shoulder.
Respiratory System and Lungs
98 The plaintiff admitted that she had suffered from asthma and bronchial problems since the late 1980s. She had been prescribed Ventolin and had used a puffer. She recalled she had been prescribed Ventolin by her general practitioner, Dr Sanders, from 1988, and by Dr Riseley between 1999 and 2001, during the time she had been employed by her. She described such asthmatic attacks as irregular.
99 The plaintiff alleges that, as a consequence of the accident, she suffered injury to her respiratory function and lungs and that that injury is a “serious injury” as defined in the Act.
100 In the index to the Plaintiff’s Court Book, it is indicated that reports from Dr Karen Detering (respiratory and sleep disorders physician); Ms Mary Buttofant (speech therapist); Mr Warner Mooney (otolaryngologist – head and neck consultant); Dr V Lee (general practitioner); Associate Professor Donald Marshall (plastic and reconstruction surgeon); and Mr Alexander Rosalion (cardiothoracic surgeon) relate to her respiratory system/lung injury and, by inference, support her case. This is not the case.
101 It is not necessary for me to refer to all those reports. Only the reports of Mr Rosalion have any relevance to the issue. He appears to have seen the plaintiff initially on a medico-legal basis in June 2007. He later appears to have treated her, to the extent of arranging for respiratory tests in 2008 and 2010.
102 In June 2007, he reported that he had been given a history by the plaintiff of exacerbation of respiratory symptoms in November 2006 following surgical repair of an umbilical hernia and abdominal tuck. Two days following that surgery, she had developed acute shortness of breath and a collapsed right lung. He also concluded that she had suffered from a pulmonary embolism at that time.
103 There was no evidence from the surgeon who performed that procedure or as to the cause of those conditions or as to whether they were in any way connected to the accident.
104 In January 2007, Mr Rosalion was given a history by the plaintiff of ongoing shortness of breath following the accident, exacerbated by the subsequent pulmonary embolism secondary to the surgery in November 2006.[74] He was unaware as to whether that surgery was or was not related to the accident. Notwithstanding, he went on to conclude that she had significant disability, with both dyspnoea (breathlessness) and pain, which were the direct result of the accident. Following further respiratory testing in February 2010, Mr Rosalion was of the view that she had significant respiratory impairment.[75] The reason for his conclusion that the condition was the result of the accident is unclear on my reading of his reports, but I understand it to be largely if not entirely based upon the history taken by him from her that, following the accident, she had ongoing shortness of breath.
[74] PCB 179, 182.
[75] PCB 190
105 The plaintiff’s general practitioner in the period following the accident was Dr Angela Sanders. In her report dated 21 January 2007,[76] Dr Sanders set out the various histories taken from the plaintiff on a number of consultations between April 2005 and November 2006. Dr Sanders makes no mention of any finding of or complaint of shortness of breath. She does refer to the initial chest pain and fractures of the sternum and ribs but notes the easing of that pain.[77]
[76] DCB 24
[77] DCB 24
106 Reports of the plaintiff’s current general practitioner, Dr Wallis,[78] and her former Queensland general practitioner, Dr Jeffery,[79] make no mention of any complaint or finding of shortness of breath.
[78] DCB 201
[79] PCB 154, DCB 200
107 The defendants arranged for the plaintiff to be examined by Dr Jonathan Burdon, respiratory physician, in October 2009. Lung function tests conducted in his rooms at that time showed minimal/mild restrictive defect.[80] He considered that earlier tests conducted in January 2007 clearly fell within the normal range. He noted that lung function tests are “effort dependant” and that results could vary from time to time. He considered that the plaintiff had no respiratory impairment. He considered that any breathlessness of which she complains was not related to any respiratory impairment but to lack of fitness and/or psychological factors.
[80] DCB 119.9
108 Having looked at more recent tests conducted at the Austin Hospital in February 2010, Dr Burdon confirmed his view that any deterioration in respiratory performance since 2007 was not caused by the accident.[81]
[81] DCB 119.14
109 I consider that the evidence concerning the plaintiff’s respiratory impairment is not sufficient to satisfy me that she has suffered an impairment of any significance in the accident. In particular, I note the absence of complaints to any medical practitioner in the eighteen months following the accident, notwithstanding that she was attending doctors regularly during that period.
110 I accept the evidence of Dr Burden. I am not satisfied that the plaintiff has established that she suffered respiratory impairment or any injury to her lungs in the accident, or that the consequences of any such condition are currently more than significant or marked or could fairly be described as at least very considerable.
Stress, Anxiety and Depression
111 The plaintiff admitted that she had been out of the workforce for some time in the late 1990s due to stress and family problems.
112 The plaintiff admitted that on admission to St Vincent’s Hospital in October 2002, she had provided a history of stress caused by having had to care for her husband, and by the death of her mother. She agreed that she was, at that time, being prescribed Valium which she believed helped her anxiety.[82]
[82] T 65-6
113 The plaintiff admitted that in the financial year ending 30 June 2004, she had had taken some 172 hours of sick leave as a consequence of low-back pain, her right knee and anxiety and depression.[83]
[83] T 78-9
114 The ambulance report of 24 March 2005 indicates that the plaintiff provided a history of depression and that she was, at that time, being prescribed the anti- depressant medication, Effexor.
115 Dr Sanders was the plaintiff’s general practitioner at the time of the accident. She provided a report dated 21 January 2007 in which she refers to presentations from and after 11 April 2005, a few weeks after the accident. However, it is clear that Dr Sanders had been her general practitioner for years before the accident and was familiar with her prescription for Effexor in 2004.[84]
[84] DCB 25
116 Dr Sanders says that she “re-commenced” the plaintiff on Effexor, 75 milligrams, in May 2004 and that she had been doing well on that low dose until the accident.[85] It is not clear from Dr Sanders’ report whether that re- commencement was a substitution of Effexor for some other anti-depressant medication or whether she had earlier been prescribed Effexor and had, at some time before May 2004, ceased it.
[85] DCB 25
117 In any event, the plaintiff’s evidence was that she had ceased Effexor when she started work at St Hilda’s Girls School in January 2005.
118 Post-accident, I shall set out the relevant events as I see them and deal with the evidence from those involved in treating the plaintiff.
119 In April 2005, Dr Sanders referred the plaintiff to a psychologist, Mr McCaffery. At that time, it appears that she was having difficulty coping with soft tissue injuries and psychological problems. Mr McCaffery reported that she presented in a confused, angry and emotional state. She had had all her hopes directed to starting a new life in Queensland and now faced an immediate prospect of that stalling.[86] She was immediately worried, being a single person, and knew she would have to fend for herself through rehabilitation, financially and emotionally.
[86] PCB 100
120 Mr McCaffery’s report is dated March 2006 and it is not clear from it how many times he saw the plaintiff over that period of approximately twelve months. In his report, he refers to the plaintiff as suffering anxiety, depression, stress, aversion to noises, avoidance of people, especially shopping centres, poor physical tolerances, disturbing dreams, unusual strong headache, worry over injuries and for her future, and damaged motivation.[87]
[87] PCB 101
121 The date of this report is approximately six weeks after the plaintiff’s sixtieth birthday party, to which I have previously referred. The description of her as having aversion to noise and the avoidance of people is inconsistent with the video tendered of that occasion. Nevertheless, Mr McCaffery considered that the plaintiff was suffering from a Pain Disorder associated with a range of accident-related general medical conditions, as well as psychological factors. The pain impact was of such magnitude that she was highly stressed and distressed. He thought, at that time, that she was also suffering an Adjustment Disorder, with Anxiety and Depression. He thought that both the Pain Disorder and Adjustment Disorder were by then chronic. He thought that her prognosis was positive but guarded.[88]
[88] PCB 101-102
122 Dr Sanders considered that the plaintiff had developed a stress-related dermatitis on her left thigh in May 2005. She considered this was consistent with the emotional trauma due to litigation and the physical trauma of the accident.
123 In August 2005, swelling of the plaintiff’s hands was noted. Later, nerve conduction studies showed mild left carpal tunnel syndrome which the plaintiff apparently related to the increased use of a computer relating to her TAC claims and associated matters. There had been a prior history of carpal tunnel surgery in 1999. I consider that it is inherently unlikely that her TAC claim would have involved any substantial increase of computer use. However, it is indicative of the manner in which the plaintiff has alleged that virtually all of her problems experienced since the accident were caused by it, notwithstanding multiple physical and non-physical problems that preceded it.
124 In September 2005, the plaintiff travelled to Bali, where she holidayed for ten days.[89]
[89] T 85
125 In November 2005, the plaintiff underwent a gastroscopy by a Mr Gilhome, which apparently noted some problem with her earlier gastric stapling surgery.[90]
[90] DCB 24-25
126 On 11 January 2006 (four days after her sixtieth birthday party), the plaintiff was examined by a clinical psychologist, Ms Denny, at the request of the TAC. No mention was made to Ms Denny of either the birthday party or of having to spend some days in bed as a consequence of it. Ms Denny took a history from the plaintiff of lack of confidence, which limited the amount of time which she could spend away from home, a dislike of crowded areas such as shopping centres and public transport, and the experiencing of panic symptoms on a semi-regular basis. Ms Denny noted that she appeared to have developed some avoidance behaviours, such as not having friends to visit due to increased panic symptoms. The video film showed of her birthday party four days earlier is, in my view, quite inconsistent with this history provided.
127 On the basis of the history that Ms Denny was given and upon the results of a number of anxiety and depression tests conducted by her, she thought there was a direct connection between the plaintiff’s physical treatment regime and her ongoing psychological functioning. She thought the physical, psychological and social factors were interdependent, with each one playing a significant role in determining the plaintiff’s level of independence and ultimately her recovery.
128 Ms Denny examined the plaintiff again in May 2009, taking a history from her of continued significant symptoms of anxiety, depression and post-traumatic stress, which she considered warranted a diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depression. Anguish and frustration at not having resolved various legal matters concerning compensation were also contributing. The plaintiff told her at that time that she was hopeful that once these non-psychological stressors were finalised, she might experience significant improvement in her symptoms.[91] Ms Denny was unable to envisage her resuming full-time work for the foreseeable future but thought it was possible that she could engage in limited part-time work at some future time.
[91] DCB 73
129 In March 2006 (about two months after her sixtieth birthday party), the plaintiff was reported by Dr Sanders as being a lot more agitated when “minor family stress resulted in a great increase in anxiety and depression”.[92] This would appear to be unrelated to injuries arising from the accident. She required an increase in her Effexor from 75 milligrams to 225 milligrams, and later to 300 milligrams. This appeared to be effective and was later reduced to 150 milligrams. By that time, Dr Sanders understood she had a better rapport with her children.[93] The nature of the family stress referred to, to what it related, or why it was causative of greatly increased anxiety or depression was not dealt with in Dr Sanders’ report, in the plaintiff’s affidavits or in her oral evidence.
[92] DCB 25
[93] DCB 25
130 In early 2007, the plaintiff returned to live in Queensland. She was living in premises owned by her son on the Gold Coast. Foreign students lived there for a time and they paid rent to her son. She performed duties looking after those students. [94]
[94] DCB 61
131 On her return to Queensland, the plaintiff consulted a new general practitioner, Dr Raju, and later, Dr Jeffrey from the same clinic. Dr Raju referred her to a psychologist, Kellie Thompson, in September 2007.
132 Ms Thompson reported that she saw the plaintiff on a number of occasions between that time and April 2008. She undertook a number of tests. These indicated a fluctuating but generally severe level of depression, anxiety and stress.[95] As at the date of her report, April 2008, Ms Thompson considered that she was then unfit for work. She considered, that with continuing treatment and with improvement in her physical injuries, she would be fit for suitable or light duties on a graduated return to work program. She thought it would be reasonable for the plaintiff to have another three months off work and expected that she would return to gradual work and eventually be able to resume her duties at full capacity, from a psychological perspective. It is not clear whether Ms Thompson saw the plaintiff after April 2008.
[95] PCB 104
133 In mid 2007, the plaintiff had a month’s holiday in Perth.[96] In November 2007, she holidayed for ten days on a cruise ship to Fiji.[97] There was no evidence as to what transpired on that cruise, or whether she travelled alone or in the company of others. In any event, within a matter of weeks, she was admitted to the Currumbin Psychiatric Clinic as an inpatient for three weeks between 27 November 2007 and 18 December 2007.[98] It would appear that she was treated there by Professor Harry McConnell, consultant psychiatrist. A short letter was tendered from him, wherein he referred to her having a recurrence of anxiety and depression associated with financial difficulties and increased pain.[99] His letter contains no comment concerning the cause of her condition or as to whether or not it was related to her accident.
[96] T 90
[97] T 90
[98] PCB 134
[99] PCB 133
134 The plaintiff was re-admitted to the Currumbin Clinic for eight weeks between 29 July 2008 and 13 September 2008, although the circumstances leading up to that re-admission was not in evidence.
135 During that admission she was treated by Dr Penny King, psychiatrist. In a report dated 6 April 2009,[100] Dr King stated that she had been the plaintiff’s treating psychiatrist since August 2009 (although I accept that this must be a misprint for 2008) at which time she was again an inpatient at the Currumbin Clinic for treatment of major depression and Chronic Pain Disorder. Dr King had taken a history from the plaintiff of prior depression from 2002 at the time of the death of her mother and the around the time of her divorce from her second husband. The history was that she had been improving and reducing medication prior to that time. I consider this to be consistent with the evidence of Dr Sanders.
[100] PCB 142
136 Dr King had a history from the plaintiff that, since the accident, there had been an onset of mood and anxiety symptoms with at least two significant panic attacks since August 2008, one of which led to an admission to the John Flynn Hospital. She noted recent stressors as being the inability to work due to her injuries sustained in the accident, significant financial pressure due to loss of work, a downward social move in terms of accommodation and lifestyle and the claim process for compensation which had similarly been stressful.[101]
[101] PCB 147
137 During her period of admission to the Currumbin Clinic, the plaintiff’s son decided to sell the apartment in which she had been living. She described being “ruthlessly” advised by her son that she would have to leave the house.[102] She felt she had nowhere to go. On her discharge from the clinic, she moved into a retirement village where she did not enjoy living.
[102] DCB 61
138 Dr King considered, in 2009, that the plaintiff suffered from Chronic Major Depressive Disorder and Chronic Pain Disorder. She had persistent anxiety and depressive symptoms and complex pain symptoms that have been localised and diffuse with fibromyalgia. She considered a differential diagnosis would be that of a Chronic Post-Traumatic Stress Disorder present since the accident. She noted the treatment for depression between 2002 and 2005, but understood that these symptoms seemed to be settling and noted that she had not sought any psychiatric treatment prior to the accident. She considered that it was realistic to consider that her condition had, in 2009, stabilised and should be considered permanent. She considered that she would require ongoing regular supportive psychotherapy, refreshing of behavioural techniques, regularly hydrotherapy and physiotherapy.[103]
[103] PCB 148
139 The most recent correspondence from Dr King was in May 2009, when the plaintiff returned to live in Melbourne.
140 It appears that between 2009 and July 2011, the plaintiff did not seek psychiatric assistance, notwithstanding that she had been provided with the names of psychiatrists in Melbourne by Dr King. [104]
[104] PCB 148
141 In June 2011, the plaintiff was involved in another car accident in Melbourne involving a collision between the car in which she was travelling and a bus.
142 Within a few weeks of that second accident, Dr Wallis referred the plaintiff to a psychiatrist, Dr Krisztina Tibad.
143 Dr Tibad reported that the plaintiff had presented with deterioration in her depressive and anxiety symptoms in the weeks preceding July 2011. She apparently described suicidal ideation at that time. He reported anhedonia (loss of feelings of pleasure), withdrawal from friends, affected sleep and appetite, lowered energy and feelings of hopelessness about the future.[105] Of note, Dr Tibad took a history of the second car accident having occurred about three weeks before her first appointment. Although this did not result in any obvious physical injuries, Dr Tibad considered it had caused further emotional trauma and had reignited her Post-Traumatic Stress symptoms.[106] She was admitted by her to the Mitcham Private Hospital as an inpatient for three weeks in July 2011. She considered that the antidepressant that she was then taking, Lovan, was not helpful at that time, and switched her back to Effexor.
[105] PCB 151
[106] PCB 151
144 Dr Tibad considered that the plaintiff was suffering from:
“… significant Major Depressive Disorder and mild to moderate Post- Traumatic Stress Disorder in a context of Chronic Pain, related to a significant motor car accident in 2005, and then another accident in June 2011 that caused emotional trauma and exacerbation of her symptoms.”
145 He considered that the plaintiff’s chronic pain and loss of lifestyle and hope for a comfortable retirement related to the accident (that is, the original accident), which had triggered her significant Depressive Disorder.
146 Since the plaintiff’s discharge from the Mitcham Private Hospital, Dr Tibad has been seeing her regularly as an outpatient. By way of prognosis, Dr Tibad considered that she was likely to suffer a recurrent Depressive Disorder and exacerbation of post-traumatic stress if exposed to traumatic situations. She noted that she had suffered continuously from pain since the accident of 2005 and it was likely that this will continue. The plaintiff was not fit to do any work in the competitive work arena. She believed the plaintiff genuinely suffers from these conditions.
147 I note that Dr Tibad took a history that, prior to seeing her, the plaintiff had been seeing a psychologist, Colleen Knapp, for some time.[107] There was no evidence tendered from Ms Knapp.
[107] PCB 151
148 In a report dated 15 February 2011,[108] Dr Wallis said that although the plaintiff had been diagnosed with depression prior to the accident, her depression had worsened considerably since and she now required increased medication to control her symptoms. In addition, she required psychiatric specialist care, which she had not required before. He considered that her condition of Major Depressive Disorder, fibromyalgia and Chronic Post-Traumatic Stress should be considered permanent.
[108] PCB 201
149 Dr Wallis’ views concerning the origin of the plaintiff’s depression and anxiety must be based largely if not entirely upon a history taken from her. He had only been her general practitioner since her return to Melbourne in about May 2009, more than four years after the accident.
150 The plaintiff was seen on a medico-legal basis by Dr Peter Cotton, Dr Nicholas Ingram and Dr Edward Cole
151 In July 2005, Dr Peter Cotton (clinical and organisational psychologist), examined the plaintiff at the request of the TAC. At that time, he considered that she presented with a range of acute stress disorder features and anger feelings that appeared to be progressively resolving. He thought that those psychological distress features were directly related to the accident with its associated significant life disruption, relocation to Melbourne and inability to resume her pre-accident job. He thought there was a positive prognosis.[109]
[109] DCB 56
152 Dr Cotton re-examined the plaintiff in May 2009. He then obtained an updated history from her, including that in 2006 she had had “an attack” and had been commenced on anti-depressant medication. I assume that this is the same exacerbation of her conditions that was referred to by Dr Sanders, as resulting from family stress. The plaintiff told him that she had been unable to cope with the foreign students because they had expected her to do everything for them. Her son had apparently “ruthlessly” advised her that she would have to leave the premises owned by him on the Gold Coast and that she had had a further breakdown as a consequence.[110]
[110] DCB 61
153 Dr Cotton considered that the plaintiff presented at that time with mild anxiousness, periods of fatigue, stress aggravated diffuse muscle pain (fibromyalgia), chronic sleep disturbance, intermittent periods of feeling withdrawn and occasional periods of reported reduced concentration. He considered that she then presented with a mild Adjustment Disorder with Mixed Anxious and Depressed Mood. There were no indications of any significant Post-Traumatic Stress Disorder symptoms. He considered that the symptoms fluctuated but appeared to be generally mild. He considered that she would have been able to resume her pre-accident job, had it remained available.
154 Dr Nicholas Ingram, psychiatrist, examined the plaintiff at the request of the TAC in November 2007 and May 2009. On the earlier occasion, he considered that she had significant psychological symptoms and felt that her anxiety and depression probably contributed to her difficulty in returning to work. He thought she should increase her dose of Effexor, but until she had had a proper trial of antidepressant medication, he did not consider that she was stabilised. On the latter examination, he found that she continued to suffer from a depressive illness, although he considered her symptoms had improved somewhat since the earlier examination. He noted that she had been admitted to the Currumbin Clinic in Queensland the previous year. He considered the improvement was likely to have been due to a number of factors, including a change in her antidepressant from Effexor to Lovan, the fact that she had been having regular psychotherapy and to the fact that she had decided to return to live in Melbourne, where she was less isolated. He considered that her depression was relatively mild and, on its own, would not have prevented her from working.[111]
[111] DCB 84-85
155 Dr Edward Cole, psychiatrist, saw the plaintiff at the request of her solicitors in February 2007, April 2008 and May 2009. On each of those occasions, Dr Cole concluded that she was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought her condition stemmed from the shock of the accident, from the effects of injuries received in the accident and the legal complications that have ensued. Initially, he also considered that she had suffered from a Post-Traumatic Stress Disorder, evidenced by flashbacks of the accident and nightmares, and that she was more preoccupied by her pain and limitations than might otherwise be the case, but there was no evidence that she was exaggerating her symptoms at either a conscious or unconscious level.
156 At the most recent examination, Dr Cole thought that, if anything, the plaintiff’s condition appeared to have deteriorated. He thought that she would need to remain under the care of her general practitioner and on anti-depressant medication, and that it was possible that she would require further psychiatric treatment in the future. He regarded her as totally and permanently incapacitated for any form of employment likely to be open to her. Her prognosis was guarded. He thought that there could be a modest improvement in her condition, once all forms of litigation had been concluded, but he did not see her as recovering completely and thought that it was in the highest degree unlikely that she would ever be able to return to work.[112]
[112] PCB 126-127
157 The plaintiff has suffered from a large number of medical conditions, both prior to and since the accident. In 1968, her gall bladder was removed. She has had bowel problems since she was a child. She has a middle ear condition that affects her now and again, requiring Stemitil to assist coping with nausea. She underwent a hysterectomy in 1976. She had surgery to her feet in 1990 and 1997, had carpal tunnel surgery in 1999, underwent gastric stapling in 2001, 2002 and again in 2004, breast reduction surgery in 2004, right knee arthroscopy in December 2004, liposuction surgery in November 2005, gastroscopies in 2001, 2002, and twice in 2004, a pulmonary embolism and collapsed lung following umbilical hernia repair in November 2006. She had been treated for sleep problems well before the accident. These conditions and procedures had nothing to do with the accident or injuries suffered in it. I consider that such conditions must have been unpleasant and made life difficult and stressful for her.
158 Nevertheless, the plaintiff was able to work, albeit on a part-time basis, for the two years before 2005 at Tintern Girls School. I find that her depression and anxiety was mild and at a level that enabled her to work and reduce her medication. I consider the boarding house work she performed at Tintern Girls School and at St Hilda’s Girls School involved considerable responsibility and judgment. She remained however vulnerable to more significant depression and anxiety if subjected to stress caused by physical pain or otherwise.
159 I acknowledge that the plaintiff has a relatively unimpressive work record but I accept the submission made on her behalf that the appointment to St Hilda’s Girls School and the move to the Gold Coast had the potential to be a turning point for her. Her inability to return to work there has been a significant blow for her.
160 I acknowledge that from time to time since the accident, the plaintiff has been well enough to take holidays in Perth, the Gold Coast and Bali, and on a cruise ship. Her psychiatric condition obviously fluctuates to an extent.
161 I am satisfied that the plaintiff has a Major Depressive Disorder and Post- Traumatic Stress Disorder, which can be fairly described as being more than serious, to the extent of being severe. She requires significant anti- depressant medication. She has been admitted as an inpatient for psychiatric treatment on a number of occasions over the last three years. I accept the opinions of Dr Tibad, her current treating psychiatrist, and Dr Cole, that she is not fit to work in any normal work arena. I consider that her condition is likely to be permanent, in the sense that it is likely to continue for the foreseeable future.
162 I am not satisfied that the accident and the physical injuries suffered in it are the sole cause of such condition. However, I am satisfied that the accident, its circumstances and the physical injuries that the plaintiff suffered are a cause of that mental or behavioural condition. It is not a pre-condition for leave to bring proceedings in respect of her injuries for the accident to be the sole cause of such injuries. A consequence may have a multiplicity of causes. I consider that the comments of Ashley JA in Grech v Orica Australia Pty Ltd & Anor,[113] although made in relation to s.134AB of the Accident Compensation Act 1985, are equally applicable to the consequences of injuries sustained in a motor vehicle accident in the context of s.93 of the Act.
[113] [2006] VSCA 172 at paragraph [58]
163 I am satisfied that the aggravation of the plaintiff’s depression and anxiety is such that, when her condition and symptoms prior to the accident are compared with those suffered after the accident and at the present time, the test laid down in Petkovski[114] is satisfied.
[114] supra
164 Accordingly, I am satisfied that the plaintiff has suffered a serious injury in accordance with the definition of that term in s.93 (17) of the Act – a permanent severe mental or permanent severe behaviour disturbance or disorder.
Conclusion
165 Accordingly, for the reasons set out above, leave will be granted for the plaintiff to issue proceedings to recover damages in respect of injuries suffered by her in the motor vehicle accident occurring on or about 24 March 2005.
166 I shall hear the parties in relation to costs.
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