Windsor v Transport Accident Commission
[2022] VCC 701
•27 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00986
| TRACEY ANNE WINDSOR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April, 28 April and 5 May 2022 | |
DATE OF JUDGMENT: | 27 May 2022 | |
CASE MAY BE CITED AS: | Windsor v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 701 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Psychiatric injury – two transport accidents – plaintiff’s claim that psychiatric injury resulted from the first transport accident – causation – differing opinions on causation by examining psychiatrists – serious attack on plaintiff’s creditworthiness and reliability
Legislation Cited: Transport Accident Act 1986
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan SC with Mr L Perilli | Arnold Thomas and Becker Lawyers |
| For the Defendant | Mr S A Smith QC with Ms A Bannon | Wisewould Mahony |
HIS HONOUR:
Introduction
1The plaintiff suffered injury in a transport accident which occurred on 27 May 2014 (“the first transport accident”), and then suffered further injury in a transport accident which occurred on 7 November 2014 (“second transport accident”).
2The central issue in this application is whether the plaintiff suffered a severe long-term mental or severe long-term behavioural disturbance or disorder resulting from the first transport accident or the second transport accident, or by a combination of the two. It was the plaintiff’s contention that her psychiatric injury resulted from the first transport accident. It was the defendant’s contention that the evidence did not support such a conclusion, and that the evidence pointed to the second transport accident being the substantive cause of the plaintiff’s psychiatric injury. There were many other issues which I do not propose to summarise here. I will refer to them as I make my way through the evidence adduced by the plaintiff and the defendant.
3Ms F Ryan SC appeared with Mr L Perilli of counsel for the plaintiff. Mr S Smith QC appeared with Ms A Bannon of counsel for the defendant.
4The plaintiff and the defendant considered it was beneficial to adjourn the proceeding for the purpose of submitting written submissions, and then speaking to them on a later date. The written submissions overall are exceptional in their detail and treatment of the relevant issues. After reading the written submissions and following the evidence referred to in them, and also after hearing the supplemental oral submissions, I have reduced the issues to what I consider to be the critically important ones rather than addressing each and every point raised by the plaintiff and the defendant in their written submissions.[1]
[1]The plaintiff’s written submissions are dated 4 May 2022. The defendant’s written submissions are dated 2 May 2022. I should also add that the plaintiff provided an excellent chronology which was very useful in tracking through the timeline relevant to the plaintiff’s claimed consequences following the occurrence of both transport accidents
The pre-existing psychiatric condition
5I will now set out a summary of the plaintiff’s pre-existing psychiatric condition. It may not be particularly necessary to do so in the detail set up below, but I consider it prudent to do so to demonstrate that the psychiatric injury resulting from the first transport accident is quite different and distinct from the diagnosis of her pre-existing psychiatric condition. Additionally, I have done so because Dr Jager, psychiatrist referred to the psychiatric injury I am dealing with as being underwritten by her pre-existing psychiatric condition.[2] It is not entirely clear to me what he meant by that, but to the extent that the pre-existing psychiatric condition is a contributor to the diagnosis he made, then the summary set out below becomes necessary.
[2] Defendant’s Court Book (“DCB”) 97
6The plaintiff described her prior psychiatric problems in some detail in her first affidavit affirmed 7 December 2021.[3] I think the following is sufficient to demonstrate the nature and extent of her prior psychiatric problems:[4]
[3] Plaintiff’s Court Book (“PCB”) 11-21
[4] PCB 12-13
· Cannabis use as a teenager and in early adulthood. Ecstasy use socially and in the 2000s after her first marriage broke down. The cessation of the use of illicit drugs in about 2010.
· Sexual abuse as a child, resulting in counselling on about five or six occasions during the 1980s.
· Depression in her 20s, resulting from the loss of both of her parents, and treatment by a psychologist on about six occasions.
· Depression following the birth of her children, resulting in the prescription of Zoloft to manage the depression.
· In about 2002, she consulted Dr Bill Pring, physician, with a concern regarding her daughter’s diagnosis of Attention Deficit Hyperactivity Disorder and a concern that she might have suffered from the same disorder. She again consulted Dr Pring in 2003, presumably relevant to Attention Deficit Hyperactivity Disorder for either herself or her daughter.
· A diagnosis of thyroid cancer in 2002 which was successfully treated. She continues to take Thyroxine to manage the condition, which she says was in remission before the first transport accident.
· Nervous breakdown in 2011 due to financial and relationship problems.
· An attempted suicide in January 2011 by overdosing on medication. She was admitted to a psychiatric ward known as Upton House at the Box Hill Hospital. She was an inpatient for a few weeks and was provided with the diagnosis that she was suffering from a bipolar illness.
· In May 2011, she was conveyed by ambulance to the Maroondah Hospital after receiving threats from a woman she was living with. She was assessed and discharged.
· Between 2011 and 2013, she described her life as being difficult. She was treated as an outpatient through Eastern Health for her bipolar illness and for depression.
7The plaintiff saw Dr Gail Reid, general practitioner, for treatment for her psychiatric problems. Dr Reid referred her to Dr Zarrar Chowdary, psychiatrist. The plaintiff first saw Dr Chowdary on 9 October 2013. Dr Chowdary wrote a courtesy letter to Dr Reid dated 18 October 2013[5] which is largely devoted to a recording of the history of the plaintiff’s past psychiatric problems, and he provided two reports dated 29 June 2016,[6] and 24 August 2016.[7] In his report dated 29 June 2016, Dr Chowdary expanded on his understanding of some of the more important aspects of the plaintiff’s past psychiatric problems, noting that the plaintiff had been diagnosed as suffering from Bipolar Affective Disorder.
[5] DCB 112-113
[6] PCB 70-75
[7] PCB 76
8Both Dr Reid and Dr Chowdary work from a clinic known as the Seymour Street Medical and Dental Centre in Ringwood. The clinical notes of that clinic record that the plaintiff saw Dr Reid on 7 October 2013.[8] Dr Reid noted that the plaintiff had a diagnosis of Bipolar Affective Disorder. She noted that the plaintiff’s bipolar illness was stable; that she had been hospitalised the year previously, but between the hospitalisation and seeing Dr Reid, she contacted CAT teams (Crisis Assessment Teams) on a few occasions. She prescribed the plaintiff Seroquel (used in the treatment of bipolar illness), and Valium (used, among other uses, to treat anxiety). She referred the plaintiff to Dr Chowdary.
[8] DCB 158
9The plaintiff first saw Dr Chowdary on 9 October 2013.[9] He recorded that the plaintiff’s bipolar illness was in remission. He also recorded that the plaintiff had chronic thoughts of self-harm, but no intention to do so. He reviewed the plaintiff on 20 November 2013.[10] He did not record any psychiatric symptoms of significance relevant to the bipolar illness, although, he discussed the question of risk of relapse of it. He prescribed the plaintiff Quetiapine (another name for Seroquel), and Valium. He reviewed the plaintiff on 18 December 2013.[11] He did not record any psychiatric symptoms of significance relevant to the bipolar illness. He continued with prescriptions of Quetiapine and Valium. He reviewed the plaintiff on 12 March 2014.[12] He did not record any psychiatric symptoms of significance relevant to the bipolar illness. He continued with prescriptions of Quetiapine and Valium and added Valproate (used in the treatment of bipolar illness).
[9] DCB 158
[10] DCB 156
[11] DCB 155-156
[12] DCB 154-155
10In his report dated 29 June 2016, Dr Chowdary said that when he first met the plaintiff her bipolar illness was in remission. He noted that he had seen the plaintiff at four to eight-week intervals for treatment, and that would appear to be consistent with his clinical notes. The defendant referred to other parts of Dr Chowdary’s clinical notes which it submitted suggested that the plaintiff continued to suffer from symptoms of a psychiatric illness, and perhaps the bipolar illness, after the occurrence of the first transport accident. I will refer to this shortly.
11Despite the extensive nature of the plaintiff’s prior psychiatric problems, she was able to function well in an educational and vocational sense. In 2013, she obtained a Certificate IV in Mental Health, and then, in December 2013, obtained employment with Mind Australia as a community mental health practitioner. She worked full time from Monday to Friday. Some of her responsibilities included assisting clients with their recovery goals, and physically taking them to meet relevant appointments. The latter involved her in undertaking a lot of driving, presumably to convey clients to appointments and like commitments.[13]
[13] PCB 12
The first transport accident
12The plaintiff stopped her car in obedience to traffic control signals. Whilst she was in that position, her car was struck from behind by another car, resulting in her car being pushed into the car ahead of her.
The aftermath
13The plaintiff was removed from the scene of the first transport accident by ambulance. The ambulance officers prepared a patient care record for the purpose of the handover of the plaintiff to the Emergency Department at the Box Hill Hospital.[14] The patient care record is not particularly helpful in determining what injury the plaintiff suffered as a result of the first transport accident, however, the plaintiff emphasised that it contained observations of the ambulance officers which support her contention that the first transport accident resulted in her suffering a Post-Traumatic Stress Disorder. The ambulance officers’ cryptic notes suggest that the plaintiff was confused and appeared anxious and distressed. The plaintiff also emphasised that the clinical notes of the Box Hill Hospital contain like observations.[15] On initial presentation, it was noted by a Dr Deborah Bernstein, physician, that the plaintiff was both stunned and confused about where she was and who she was.[16] The plaintiff was treated for pain affecting her neck, right shoulder, lower back and left hip, as far as I am able to interpret the clinical notes. In any event, she was given medication, and discharged on 27 May 2014 with analgesia.
[14] PCB 47-49
[15] PCB 50-54
[16] PCB 51
14The next medical practitioner the plaintiff saw was Dr Nawaf Al-Obaydi, general practitioner, on 30 May 2014 . His treatment of the plaintiff, and treatment provided by Dr Lui, general practitioner, are referred to in the report of Dr Lui dated 6 March 2015.[17] He noted that the plaintiff complained of ongoing pain in her neck, mid back and lower back. She was referred to Mr Vincent Cheung, physiotherapist, and she was prescribed analgesia. The plaintiff saw Dr Lui on eleven occasions between 30 May 2014 and September 2014. By September 2014, he considered that the plaintiff’s symptoms of pain had mostly resolved and that she was effectively then working full time. There is no record of the plaintiff complaining of any psychiatric symptoms in his report.
[17] PCB 98-100
15The plaintiff saw Dr Chowdary on 11 June 2014. The clinical note he made was the subject of serious debate between the plaintiff and the defendant as to what I was to make of it and, in particular, when compared with his report dated 29 June 2016. The relevant parts of the clinical note are as follows:
“15 days ago- rta- was hit while standing on traffic lights- soft tissue inj[ury]- sayus (sic) after the accident, she spaced out and could not reme[m]ber her name for a while
off work for two weeks
has started to work from yesterday- five h[ou]rs a week
doing physio and stretcheswork has been very supportive
work has been very challenging- recomm[i]sioning and possibly losing 100 employees…PHAMs remains funded for another year
it has been very difficult for her to adjust to and physical spaiun (sic) has made it worse
children has been doing well…it was difficult for the kids to adjust to
over the weekend, she became very emotiona[l]
was bed boundwas very tearful
she feels that it was one isolated incident and it has been getting better
work has gone well but remains pre occupied with pain and feels that [P]anadeine is not taking the edge off…she is taking 2 tabs of [P]anadeine forte twice a day
feeling a bit more anxious when driving…she is getting flashbacks and gets very nervous when stops at traffic lights…says she is doing ok when driving and concentration has been ok…..says she is a bit more hypervigilant in the car.….no nightmares
also about three weeks ago, she received a phone call from a person who has said that she owns 5k from credit card about 4 years ago when she had her business...she feels that it has taken her back to past and she is feeling very anxious about it….
in general she says she has been doing well…
remains positive about future.
sleep has been poorappetite has been ok
feels going back to work has been very helpful from emotional point of view.”
16In his report dated 29 June 2016, Dr Chowdary summarised the history he recorded of the plaintiff’s complaints as follows:
“I met her after 15 days after the road traffic accident when her car was hit while standing in traffic lights and [she] sustained soft tissue injuries. After the accident she felt spaced out and could not remember her name for a while and was off work for 2 weeks. She was very preoccupied with the pain at the time when I saw her around her shoulders and was just started on Panadeine that she felt it (sic) was starting to take the edge off her.
Following the accident she was starting to get more anxious while driving, was getting flashbacks and getting very nervous at traffic lights with the fear that she may have an accident again. She would also be very hypervigilant while in the car and was just managing with short distances. She did not report any nightmares around June 2014.
In further consultations in the coming months, she mentioned that she was struggling with work because of increased case load, had a feeling of being almost burnt out and had some very difficult encounters with one of her patients that made her feel more anxious and nervous.”[18]
[18] PCB 72-73
17The plaintiff saw Dr Chowdary on two further occasions prior to the occurrence of the second transport accident. The first was on 1 September 2014. The plaintiff discussed a number of non-transport accident related issues with him. He recorded that the plaintiff told him that she had not suffered any flashbacks or nightmares. He recorded that she was still having pain in her hip which was improving.[19] The second was on 17 September 2014. The plaintiff discussed a number of non-transport accident related issues with him, but no transport related issues.[20]
[19] DCB 151-152
[20] DCB 148-151
18The plaintiff was absent from her employment for some time after the first transport accident. She was then able to return to her normal duties full time, although, she said that she had some difficulty driving a car because of the onset of anxiety when driving. The evidence does not disclose with any clarity how long the plaintiff was absent from her employment, when she first returned to her employment and when she returned to full-time employment before the occurrence of the second transport accident.
19Under cross-examination, the plaintiff was taken to the reports of a number of medical examiners by the defendant for the purpose of referring her to histories that she gave about her physical injuries and the timing of her return to work.
20The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, on 9 September 2014. He provided a report dated 9 September 2014.[21] He considered that the injuries to her neck, back and left hip were resolving. In the history, he noted that she returned to work about two weeks after the occurrence of the first transport accident, then ceased for some time and then returned to work, ultimately returning to full-time work.
[21] DCB 1-5
21The plaintiff was examined by Dr Clive Kenna, consultant in musculoskeletal pain management, on 18 February 2015. He provided a report dated 20 February 2015.[22] He considered that she had suffered a right sacroiliac joint dysfunction and associated soft tissue injuries to her left shoulder and neck, caused by both transport accidents. He obtained a limited history of her return to work. He recorded that she was off work for two weeks and returned to full-time work within three or four months, then regaining a full capacity for work by September 2014 after a further two or three months.
[22] DCB 6-13
22The plaintiff was examined by Dr Andrew Muir, psychiatrist, on 12 January 2016. He provided a report dated 18 January 2016.[23] He obtained a history that the pain the plaintiff experienced in her neck, back, right hip, and from headaches, settled in the days and weeks following the occurrence of the first transport accident. She returned to work after having some time off and then suffered from intermittent pain, presumably from the injuries just referred to, which did not interfere with the duty she was performing in her work.[24]
[23] DCB 14-18
[24] DCB 15
23In contrast, when the plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, on 15 December 2021, she gave him a different history of the nature and extent of the pain that she was experiencing. He provided a report dated 15 December 2021.[25] He obtained a history that she experienced significant neck pain, and also lower back pain radiating into her right buttock and right hip. That level of pain persisted to August 2014, after which she had a number of radiological examinations, and was subsequently prescribed significant painkilling medication, namely, Oxycodone, Targin and Lyrica. He also obtained a different history relevant to the plaintiff’s return to work that the severity of the pain was such that she was on and off work due to flareups. That appears to me to have been a history aggregating the impact of both transport accidents, and not limited to the first transport accident.
[25] PCB 88-95
24Under cross-examination, the histories obtained by those medical practitioners was put to her, with the exception of Mr O’Brien, that before September 2014 the physical injuries that she suffered as a result of the first transport accident were resolving and that, in effect, she was fit for the work she returned to by September 2014.[26] The plaintiff disagreed that she made a recovery from her physical injuries to the extent described by these medical practitioners, and indeed, she said that at the present time, her neck locks up to the extent that she cannot move it. It causes her a lot of pain and headaches and interferes with her daily activities. She said that her left hip seizes up, and she gave an example that when walking it will seize up and cause her a lot of pain.[27] I was left with the impression that what the plaintiff described were symptoms of pain and disablement that have troubled her from the time of the occurrence of the first transport accident.
[26] Transcript 28-34
[27] Transcript 28, 33 and 34-35
The Plaintiff’s evidence of psychiatric injury post the first transport accident
25In her first affidavit, the plaintiff described the impact of the first transport accident on her psychiatric state at significant length:
“81.I have been diagnosed with post-traumatic stress disorder since the first accident. I also suffer from increased depression and anxiety since the first accident. I feel down and worthless, and have lost hope for the future.
82.Since the first accident, I have developed a fear of driving. I am petrified of driving and avoiding driving as much as I can. I limit any driving I do to locally in Port Melbourne and South Melbourne. I do not travel further than St Kilda. I avoid driving on main roads.
83.I often have panic attacks when I am in a car. This can happen when driving or as a passenger. When I have a panic attack, I pull over and take Valium. I put my head in my hands and scrunch up in a ball. My muscles ache and I shake.
84.I take Valium before I get in a car to help calm me down.
85.I have driven on freeways since the accident but have found this too hard and had panic attacks. On one occasion, I recall that I slowed down and was driving 40 km/h on the Bolte Bridge and 40 km/h on the Westgate Freeway. I pulled over at the next exit and had to be driven home.
86.I hate being in a car. I always think of the worst when I am in a car. I find that I constantly look around when I am in a car.
87.I used to be a very social person. Now, I do not see my friends as much because I avoid driving. I have lost friends as a result. I feel like I have become a hermit.
88.I feel like I have lost my independence because I do not drive much.
89.My sleep has been impacted since the first accident. I am now an insomniac. I struggle to fall asleep because of my psychological injuries. When I am asleep, I often have nightmares about the first accident and hear the sound of glass smashing. This was the noise I heard during the first accident. I take Imovane to help me fall asleep. I take Imovane every second night or nightly, depending on how hard I am finding it to sleep. At times, when I am asleep and have a nightmare, I wake up screaming. I get out of bed and walk around after I have a nightmare. If I don’t, and I go back to sleep, I have the same nightmare. I only get a few hours[‘’] sleep per night. I feel tired and lethargic after a restless night’s sleep.
90.My fear of driving and being in cars meant that I was not able to teach my children how to drive. I feel like I missed out on this right (sic) of passage.
91.I am scared and worried about the future because of my psychological injuries. I worked hard to rebuild my life after the issues I had in 2011. I was able to secure full-time work and had no restrictions at work or in my day-to-day life. My bipolar disorder was in remission and well controlled. I got my life back together before the first accident and now feel like my hard work has come undone because of the first accident.
92.I am particularly worried that I will not be able to work again once I am required to drive for work.”[28]
[28] PCB 19-20
26In her second affidavit, the plaintiff added the following:
“9.I have continued to struggle with my mental health including depression and anxiety since my earlier affidavit.
10.My fear of driving has now gotten to the point where I have had to put my car, a Hyundai Tucson up for sale on Car Sales. This is a 2017 model. My husband Andrew bought it for me after the accident. I am selling this car because I rarely drive it. I stick to driving locally but even then, I still have issues with anxiety in a car. I have been driving about once a week locally to the supermarkets, which is an effort for me because of how terrible I feel in a car. My car has done approximately 37,000 km since 2017, however my husband has driven it regionally. I feel horrible having to sell my car. It makes me really sad. I feel like it is another kick in the guts. Putting my car up for sale feels like a final admission that I cannot cope with driving. It feels like something has been taken away from me because I cannot enjoy my car. I am dreading the day my car sells. I was crying the day I put it up for sale.
11.Recently, I was in the car with my husband Andrew. He has a diesel car. He drove me to my optometrist in South Melbourne to pick up a pair of glasses. I was dreading this trip but only went because it was local. As Andrew was driving, a button started flashing in his car. He told me that he had to continue driving to flush out an issue. Andrew told me that he had to get onto the freeway and that he wanted to drive to Point Cook to flush out the problem. I asked him to drop me off, but he couldn’t stop the car because of the mechanical issue. I was a mess in the car. I was crying and shaking. I did not take any Valium as I did not have any with me. I thought I would be okay with a short trip to South Melbourne. I thought I was going to pass out in the car. I sat in the car with my head down crying and shaking. When I took my hands away from my head, I screamed because I was so scared. By the time Andrew and I got back, I felt exhausted. I get anxious thinking about this again.
12.I continue to have difficulty sleeping because of my psychological injuries. I am taking Temazepam to help me sleep but I still have nightmares about glass smashing and issues sleeping. I’m not sure how many more medications I will try taking to help me sleep.
18.When I take on new clients now, I check whether they are comfortable with either telephone or online support as opposed to me meeting with them. If the prospective client prefers to see me in person, I will not take on that client because it will mean I have to drive. I only service clients who are happy with Telehealth.”[29]
[29] PCB 23-25
The second transport accident
27On 7 November 2014, the plaintiff was driving a client in her car. She was travelling along Waterloo Street, Carlton. She braked suddenly because a child ran out in front of her car. She described suffering an injury to her left shoulder and a temporary increase in pain in her neck, lower back and right hip which she said troubled her for a short time only.[30]
[30] PCB 16
Its aftermath
28The plaintiff then had what appears to me to be a significant amount of treatment. She first attended Dr Lui on 14 November 2014. He recorded that she told him that the deceleration under braking worsened her lower back pain. Over the next two months, she told him that her neck and left arm had also become painful. She was referred for radiological investigations. He gave her a cortisone injection into her left shoulder on 4 February 2015, and then referred her to Dr David Vivian, physician,[31] and then to a number of other medical practitioners.
[31] PCB 99
29Dr Vivian gave the plaintiff cortisone injections into her left shoulder in February 2015 and April 2015. He referred her to Mr Dunin, orthopaedic surgeon, who the plaintiff saw in 2015. She was later referred to Mr Ash Moaveni, orthopaedic surgeon. In July 2015, she was given a right sacroiliac joint injection, but she did not say who the medical practitioner was who gave her that injection. She was later referred to Dr Peter Blombery, physician, by Dr Vivian in September 2015, and in November 2015, he administered a ketamine infusion to treat her neck, back, right hip and left shoulder. She last saw Dr Blombery in 2017.[32]
[32] PCB 15-16
30The plaintiff then commenced seeing Dr Richard Yang, general practitioner, at the Everwell Medical Centre in Nunawading. No report was obtained from him. The plaintiff relied upon his clinical notes which commence with a consultation with him on 15 August 2017.
The psychiatric evidence
31The plaintiff returned to see Dr Chowdary on 4 February 2015. The relevant part of the clinical note he made is as follows:
“applied to be on work cover for back ache and neck pain after she had a whiplash inj[ury]…. she has applied for conciliation
she had to press emergency brakes
…
she remains employed with MIND…She contd to work full-time
she was offered to be a acting team leader and since the injury, she has reduced her hours and contd work as a case manager
….
her pain has been very diffi[cult] to tolerate and is keeping her awake at night..today, she ahd a local steroid injection and has been seeing GP at regular intervals…. has poor sle[e]p because of pain amanges upto 3-4hrs a night.
….
says her mood has been on the lower side and feels very anxious in the car….says she struggles to drive and gets panicky and feels that she may be involved in accidnent and she has been excessively careful….she says she has good concentration and aware of the cars around her…. she drives to small distances appetite has been ok….
feels very disappointed as she could not step up the lead practitioner and there was another missed opprutinity and aware that she should be able to return and has confidence that she will be able to return
no flashback or nightmares in relation to car accident…
… .”
(sic)
32Dr Chowdary prescribed the plaintiff Valproate (a treatment for Bipolar Disorder), Quetiapine, Valium, Lyrica (a treatment for pain) and Naproxen (an anti-inflammatory). He noted that the plaintiff had taken Endone for a period of twenty days and was using Panadeine Forte every now and then. He noted that Seroquel was added to her medication regime.
33The plaintiff subsequently saw Dr Chowdary on 16 March 2015, 13 May 2015, 29 July 2015 19 August 2015, 24 August 2015, 2 September 2015, 16 September 2015, 19 October 2015, 30 November 2015, 8 February 2016, 18 April 2016, 16 May 2016, 15 June 2016, 4 July 2016, 3 August 2016, 28 September 2016, 23 November 2016, 25 January 2017, 8 March 2017, 10 April 2017, 26 April 2017, 8 May 2017, 22 May 2017, 14 June 2017, 9 August 2017, 20 September 2017, 20 December 2017, 18 April 2018, 27 June 2018, 12 September 2018, 5 December 2018 and 18 March 2019. My reason for referring to each of those dates is that Dr Chowdary recorded the plaintiff’s psychiatric symptoms on each occasion, the medication prescribed or re-prescribed, and the plaintiff’s fluctuating fortunes with her psychiatric symptoms. The plaintiff did not take me to each and every one of those consultations, however, my impression from what I am able to make of Dr Chowdary’s clinical notes is broadly consistent with the downturn in the plaintiff’s psychiatric state as described by the plaintiff in her affidavits.
34Dr Chowdary’s first report is dated 29 June 2016, which is about three years before he ceased treating her, however, what is important is his narrative description of the course of the plaintiff’s medical condition following the occurrence of the second transport accident. He described his consultation with the plaintiff on 4 February 2015 in his first report as follows:
“When I met her in February 2015, she mentioned her pain had been getting worse as she had to accidentally apply the emergency brakes and since then the pain in the back and shoulder has been getting worse and she is thinking of applying for Work Cover. She was awake most of the night because of the pain and was very distressed by it. She had recently been given a local steroid injection and was seeing her GP quite regularly who was managing her pain.
She was also started on Lyrica 75mg twice daily for a brief period.
Her mood started to deteriorate. She was feeling very low and anxious. She was struggling to drive and getting very anxious, had a fear that she may be involved with another accident again, despite knowing that it may be irrational, but it was quite an intrusive thought. There was also disappointment because she was unable to take up the role of a lead practitioner because she had to go off sick and felt that was a missed opportunity as she was working very hard towards it.”[33]
[33] PCB 73
35Dr Chowdary then, in that same report, referred to seeing the plaintiff in May, July, September, October and November 2015, describing the difficulty she was having with her physical injuries and her psychiatric symptoms. He made a rather fleeting reference to causation in the following way relevant to the occasions he saw her, up to and including July 2015:
“During all these consultations, her pain in the shoulder that had happened after the index episode in May 2014, remained very noticeable and would get aggravated depending upon her emotional state as well.”[34]
[34]PCB 74
36Dr Chowdary described the onset of the plaintiff’s nightmares as being in about July 2015:
“By July 2015, she started to get nightmares where she was witnessing herself being chased and was reliving some of her past traumatic experiences and often she would be waking up screaming in the middle of the night. She would be aroused having increased heart rate, heavy breathing, etc, on waking up. She was waking up several times. It was affecting her sleep and would have an affect the next morning where she would feel very tired and apathetic. Her anxiety around driving remained noticeable with irrational fear of having an accident and difficult to distract her mind.”[35]
[35]PCB 73. The narrative tallies up with the clinical notes dated 13 May 2015 and 29 July 2015 at DCB 145-147
37Dr Chowdary described the persisting nightmares when he saw the plaintiff in November 2015, which were not as frequent, and that the flashbacks were subsiding;[36] however, there are subsequent references to the plaintiff having nightmares in his clinical notes.[37] At the time he wrote that report, he considered that the plaintiff was suffering from a Bipolar Affective Disorder[38] and a complex Post-Traumatic Stress Disorder, which he considered had been triggered “after the road traffic accident”.
[36] PCB 73. The narrative tallies up with the clinical note dated 15 June 2016 at DCB 134
[37] For example clinical note dated 22 May 2017 at DCB 126-127
[38]The diagnosis of Bipolar Affective Disorder appears to be inconsistent with her bipolar illness being in remission when he first met her in November 2013. It is not clear to me whether his reference to the Bipolar Affective Disorder is an historical reference or consistent with symptoms which he observed at the time when he wrote his first report
38The defendant submitted that the failure of the plaintiff to obtain an updated report from Dr Chowdary has potentially left it uncertain as to which transport accident he is attributing the Post-Traumatic Stress Disorder. It emphasised that his reference to “the road traffic accident” is a conflation or a matter of confusion on his part in identifying which of the transport accidents he was referring to. I think, contextually, that his reference to “the road traffic accident” is a reference to the first transport accident because he referred to it as the “index episode” of May 2014.
39Dr Richard Prytula, psychiatrist, examined the plaintiff on 12 October 2016. He provided a report bearing the same date.[39] He obtained a reasonable history of the occurrence of both transport accidents. Of importance is a history he obtained from her of flashbacks and nightmares following the occurrence of the first transport accident. It would appear that his focus was the first transport accident, describing the second transport accident as aggravating her pain and leaving her with a recurrent image of the potential outcome of that transport accident which troubled her for some time, however, when he was asked to apportion responsibility for the plaintiff’s psychiatric condition, he said:
“The worker’s condition is complex. She has physical pain and restriction resulting in a component of an Adjustment Disorder which relates to this. She also has a component of her psychiatric condition which has resulted from traumatisation during the first accident particularly. I consider these to be roughly equal. I also consider that they are roughly equal in relation to both accidents. Both accidents contributed a particular form of traumatisation as described in the report.”[40]
[39] DCB 19-32
[40] DCB 26
40Dr Matthew Tagkalidis, psychiatrist, examined the plaintiff on 13 December 2018. He provided two reports, dated 13 December 2018[41] and 2 December 2020.[42] He obtained a reasonable history of the occurrence of both transport accidents. Of importance is a history he obtained from her of flashbacks and nightmares following the occurrence of the first transport accident which were exacerbated by the second transport accident. It would appear that his focus was the first transport accident. He considered that the plaintiff was suffering from an Adjustment Disorder with Anxious Mood and features of traumatisation. It would appear that he was left with the belief that the injury to the plaintiff’s left shoulder resulted from the first transport accident because when dealing with the contributors to his diagnosis, he considered that the physical injury to her left shoulder contributed 20 per cent to her emotional distress and the remaining 80 per cent of her emotional distress related to the traumatic effects of the first transport accident. He did not consider that the features of traumatisation justified a full diagnosis of Post-Traumatic Stress Disorder.
[41] DCB 51-62
[42] DCB 63-64
41Dr Justin Lewis, psychiatrist, examined the plaintiff on 13 April 2021. He provided a report dated 18 April 2021.[43] He obtained a reasonable history of the occurrence of both transport accidents. He recorded that the plaintiff told him that she suffered a temporary increase in traumatisation symptoms following the second transport accident which led to him focusing on the first transport accident. He considered that the plaintiff’s psychiatric course had been characterised by accident-related traumatisation symptoms which he summarised as ongoing re-experiencing, avoidance and hyperarousal symptoms. He considered that the traumatisation symptoms were typical hallmarks of Post-Traumatic Stress Disorder, although, he provided a differential diagnosis of Adjustment Disorder with Mixed Anxiety and traumatisation features. He considered that the second transport accident only contributed to a temporary mild exacerbation of pre-existing traumatisation symptoms, and it follows that he considered that the cause of her current psychiatric state is the first transport accident.
[43] PCB 77-87
42The last psychiatrist to examine the plaintiff was Dr Alan Jager, who examined the plaintiff on 14 February 2022. He provided a report dated 2 March 2022.[44] He obtained a reasonable history of the occurrence of both transport accidents. He perused the clinical notes of the Seymour Street Medical and Dental Centre, Ringwood which became important to his apportionment of responsibility of the two transport accidents for what he considered to be appropriate diagnoses relevant to each transport accident.
[44] DCB 90-98
43Dr Jager considered that the first transport accident resulted in the plaintiff suffering from an Adjustment Disorder with Anxiety which he considered had resolved because there was no reference in the clinical notes to any psychiatric symptoms in September 2014 and before the occurrence of the second transport accident. Based upon the clinical notes, he then considered that the anxiety suffered by the plaintiff returned, demonstrated by the clinical note of 4 February 2015 when the plaintiff developed a specific phobia which he described as a traffic type phobia. It was principally on the basis of the clinical notes that he then expressed the following opinion:
“The subsequent accident of 7/11/14, occurring as it did in the aftermath of the earlier accident which had caused an Adjustment Disorder with Anxiety sufficiently affected the plaintiff to cause a recurrence of anxiety associated with motor vehicles that has remained as a Specific Phobia (Traffic Type). It is my opinion that, in the absence of the second accident, she would not have a Specific Phobia (Traffic Type). The combination of the two accidents in relatively quick succession resulted in her developing a lasting psychiatric condition. In the absence of any scientific method to apportion causation I attribute equal causation to both accidents.”[45]
[emphasis in original.]
[45] DCB 97
44While I am dealing with the opinion of Dr Jager it is convenient to deal with a submission made by the defendant that I should prefer his opinion over that of Dr Lewis, because Dr Jager was the only medico-legal specialist who had access to the relevant clinical notes.[46] That submission is not correct. Dr Lewis set out the enclosures he was provided. One of those enclosures was the clinical notes. He provided a summary of the clinical notes that he considered to be of importance, so it is not correct to say that he did not have them and did not consider them. Furthermore, Dr Lewis was aware that the plaintiff had treatment provided by Dr Vivian and Dr Blombery, among others, subsequent to the second transport accident, because he summarised their treatment in his report. I am not convinced that Dr Jager was necessarily in a better position than Dr Lewis in attributing responsibility for the plaintiff’s psychiatric injury.
[46] Transcript 81
45It is trite to observe, in determining an application such as this, that it is my obligation to take into account the whole of the evidence. I say that at this point in my reasoning, because it is all well and good for a medical practitioner to rely on the clinical notes of another medical practitioner called in support of a thesis as, for example, argued by Dr Jager, but that is not the whole of the evidence. It ignores the plaintiff’s evidence. In short, the plaintiff disputes that she did not suffer nightmares and that she did not discuss the onset of nightmares with Dr Chowdary after the occurrence of the first transport accident and before the occurrence of the second transport accident. She gave a florid description of the nightmares being about car accidents, being chased with someone armed with glass, and flashbacks of loud noises of glass breaking and then experiencing pain and not knowing her identity or where she was or what had happened.[47] She also disputes that she did not continue to suffer from the early consequences of the psychiatric impairment, and in particular, the anxiety about driving from after the occurrence of the first transport accident and before the occurrence of the second transport accident. When asked about the trajectory of the problems with driving, she said that it continues to get worse, which I interpreted to mean that it has continued to get worse since the occurrence of the first transport accident.[48]
[47] Transcript 113
[48] Transcript 112
The Plaintiff’s credit
46The defendant made a sustained attack upon the plaintiff’s creditworthiness and reliability. In its written submissions it identified each of the factors which underwrote its ultimate submission that I should conclude that the plaintiff was neither creditworthy nor reliable.[49] I do not propose to summarise the substrata of the defendant’s submissions because of their length, but I will summarise the topic headings, which are:
· the plaintiff’s attempt to maximise the impairment of her psychiatric injury and its consequences resulting from the first transport accident; and
· the plaintiff’s attempt to minimise the impairment resulting from her psychiatric injury and its consequences resulting from the second transport accident; and
· unreliability and evasiveness in cross-examination; and
· minimising the psychological effects of other non-transport accident related stressors; and
· the impact of inaccuracies in histories given to examining medical practitioners relevant to the causation of injuries in both transport accidents, and the time when various consequences first emerged.
[49] Defendant’s written submissions, paragraphs 1-10
47I have analysed the defendant’s submissions against the evidence relied upon by the defendant in substantiating the substance of each of its submissions by following the topic heading raised, and where the evidence is to be found in the Court Books and in the transcript. I do not accept that sins alleged to have been committed by the plaintiff are as extensive as submitted by the defendant, and indeed, many of them are contrary to the conclusions I have reached on the evidence. I will deal with as many of the defendant’s submissions as I think are necessary as I next deal with each of the issues which fall for my determination.
48I will, however, pause to observe two things about the manner in which the plaintiff gave her evidence. Rather than answering a question under cross examination directly and responsively, the plaintiff often gave a non-responsive answer, repeating the basis for her case, and that often occurred when propositions were put to her which exposed some potential flaw in her case. There were also many contradictions exposed during cross-examination when facts she swore to in her affidavits were demonstrated to be potentially wrong by reference to other statements attributed to her. In a broad sense, I consider that the plaintiff gave her evidence in an uinnsatisfactory way, but I am not convinced that she was being disingenuous. I am not convinced that the plaintiff’s creditworthiness and reliability are shot to pieces as the defendant submitted I should conclude is the case.
49Furthermore, the attack on the plaintiff’s creditworthiness and reliability at first appeared to be directed to the whole of the plaintiff’s evidence, irrespective of the topic, but in reality it would appear that the attack was directed to whether I should accept her evidence that her psychiatric injury finds its root cause in the first transport accident.
The issues
The bipolar illness
50I think the overwhelming evidence is to the effect that the plaintiff’s bipolar illness is at least in remission, and, in any event, is easily distinguishable from the psychiatric injury which the plaintiff suffered resulting from the first transport accident.[50] Furthermore, the plaintiff’s prior psychiatric history was otherwise not something which any of the examining psychiatrists considered to be particularly relevant in determining whether the plaintiff suffered a psychiatric injury, and whether it was attributed to one or other of the transport accidents.
[50]Dr Chowdary at PCB 72; Dr Lewis at PCB 83 and 86; Dr Prytula at DCB 7; Dr Tagkalidis at DCB 57 and Dr Jager at PCB 97, although, he was not as categoric as the other psychiatrists
The diagnoses
51The two diagnoses relevant to the first transport accident are either a Post-Traumatic Stress Disorder or an Adjustment Disorder with Anxiety. Whichever diagnosis is more appropriate, the examining psychiatrists all relied on the same, or very similar, symptoms in arriving at their diagnoses.
The psychiatric injury
52I think the evidence of Dr Chowdary is of critical importance in determining what psychiatric injury the plaintiff suffered resulting from the first transport accident and the consequences caused by it. I do not think it is as simple, as the defendant would have it, of temporally connecting the manifestation of consequences to the occurrence of each of the transport accidents. For the reasons I will now set out, I think that is to misread and misunderstand Dr Chowdary’s evidence.
53Dr Chowdary obtained a history from the plaintiff that following the occurrence of the first transport accident, she had pain in her shoulders, was suffering from anxiety, flashbacks and nervousness at traffic lights, hypervigilance while in her car and was managing driving short distances. Although, he referred to the second transport accident, he did so in a way which he did not attribute it as resulting in an aggravation of the plaintiff’s psychiatric injury or the production of a new injury, but rather it sits neatly as being part of a continuing narrative description of his treatment of the plaintiff for the psychiatric injury resulting from the first transport accident. He did not record any additional psychiatric injury directly attributable to the occurrence of the second transport accident.
54The defendant submitted that the plaintiff did not suffer any nightmares, flashbacks or anxiety when driving resulting from the occurrence of the first transport accident, and that the absence of any recording of those consequences by Dr Chowdary referable to the first transport accident must mean that when she complained to him of nightmares, flashbacks and anxiety after the occurrence of the second transport accident, that they were caused by the second transport accident. The plaintiff denied that was the case, and added that she had conversations with Dr Chowdary about each of those matters, and inferentially, that those complaints were referable to the first transport accident.[51]
[51] Transcript 83-84
55The fact of suffering nightmares, flashbacks and anxiety when driving are significant symptoms. It is more probable than not that if the plaintiff had complained of each of those things in between the occurrence of the first transport accident and the second transport accident, that Dr Chowdary would have recorded those complaints. I think that is a fair conclusion to reach because it is clear that Dr Chowdary considered symptoms of that kind to be significant because he asked the plaintiff whether she was suffering from nightmares, and he recorded in his report and the relevant clinical note that she was not.
56I accept that the plaintiff ultimately did make those complaints, and that Dr Chowdary considered that they were referable to the first transport accident. I consider that to be the case because he did not attribute those complaints to the second transport accident, but referred to them as part of a continuing narrative description of the development of her symptoms. I think the evidence upon which he based his diagnosis that the plaintiff was suffering from a complex Post- Traumatic Stress Disorder was directed to what he considered resulted from the first transport accident. He appears to have considered all of the complaints recorded in his report before he finally reached that diagnosis, expressing it in the following way:
“I believe she suffers from bipolar affective disorder and has complex post traumatic stress disorder. Most likely the complex post stress disorder has been triggered after the road traffic accident.”[52]
[52] PCB 75
57I repeat that he used the expression “the road traffic accident” to describe the occurrence of the first transport accident, and in the quotation from his report, he used it again as a reference point in expressing his opinion on causation. I fail to see how the plain language of his report can be interpreted in any other way.
58The conclusions I have reached on causation thus far mean that I reject the opinions on causation which are to the contrary, for example, to the opinion of Dr Jager, in preference for the opinions of Dr Chowdary and Dr Lewis.
The Plaintiff’s consequences
59Although, the defendant made a sustained attack on the plaintiff’s creditworthiness and reliability, it appeared to me to be limited to each of the factors referred to in the defendant’s written submissions which I have identified earlier in these reasons. There was little cross-examination which challenged the consequences of the psychiatric injury which I have quoted verbatim in paragraphs 24 and 25 above. The defendant submitted that based upon her overall presentation at trial, that I would be entitled to find that her consequences meet the statutory test; however, I nonetheless consider that I am obliged to determine whether I accept the plaintiff’s evidence that she suffers the consequences which I have quoted, and what the examining psychiatrists say.
60I accept the plaintiff’s evidence that she has suffered each of the consequences which I have quoted. I am fortified in reaching that conclusion because I think it is well supported by Dr Chowdary’s first report and his clinical notes. The latter demonstrate that the plaintiff was seriously troubled by the psychiatric injury resulting from the first transport accident. Furthermore, the psychiatrists who examined the plaintiff, perhaps with the exception of Dr Jager, support the conclusion that whichever diagnosis applies, the consequences of the psychiatric injury are grave.
61I think I have dealt sufficiently with the opinion of Dr Chowdary to turn to the opinions of the other examining psychiatrists. Dr Prytula examined the plaintiff very early on. He considered that a diagnosis of an Adjustment Disorder with Mixed Anxious and Depressed Mood was appropriate. He considered that her traumatisation symptoms continued and were likely to remain for quite some time. He considered the grade of her psychiatric injury was mild-to-moderate in its effect on her daily activities and living.
62Dr Tagkalidis also examined the plaintiff fairly early on. He considered that a diagnosis of an Adjustment Disorder with Anxious Mood and features of traumatisation was appropriate. He considered that the plaintiff’s prognosis was guarded because of what he observed to be an increasingly chronic nature of the trauma-related symptomology which he considered had been unchanged for several years. He suggested that the plaintiff required treatment by a psychiatrist and a psychologist.
63Dr Lewis examined the plaintiff more recently. He considered that a diagnosis of Post-Traumatic Stress Disorder was appropriate. He considered that the plaintiff’s prognosis was negative and unfavourable given the chronicity and severity of her Post-Traumatic Stress Disorder symptoms. He considered that the condition was unfortunately well-established, and that the presence of avoidance behaviours on the part of the plaintiff was a particularly negative prognostic factor.
64Dr Jager was the last psychiatrist to examine the plaintiff and he did so very recently. He considered that a diagnosis of an Adjustment Disorder with Anxiety was appropriate. His opinion is perhaps the more optimistic. He noted that she reported sleeping well, but had low energy and impaired concentration. He considered that she could work half-time’ hours in her current role, but was not fit for her pre-accident role of community mental health practitioner. He considered that her anxiety would interfere with her ability to fully engage in social activities, but would not interfere with her ability to undertake domestic tasks.
65The plaintiff tendered the clinical notes of Ms Simone Pica, clinical psychologist.[53] I was told that a report had been requested from her, but she had not complied with that request. The clinical notes occupy 53 pages of mostly handwritten notes in a cryptic form. The plaintiff, in her written submissions, referred me to particular entries in the clinical notes which trace the plaintiff’s treatment from 1 December 2020 through to 9 September 2021.[54] The clinical notes confirm that the plaintiff has complained of all of the consequences from which I have quoted verbatim when she saw Ms Pica, and, in particular, her serious difficulty when driving and being a passenger in a car.
[53] PCB 101-156
[54] Plaintiff's written submissions, paragraph 31
66I should pause here to conclude that I think it is more probable than not that an appropriate diagnosis for the plaintiff’s psychiatric injury is a Post-Traumatic Stress Disorder. I am more inclined to accept the evidence of Dr Chowdary, confirmed by the opinion of Dr Lewis, and the fact that other psychiatrists gave consideration to whether a diagnosis of Post-Traumatic Stress Disorder was appropriate, but thought not; however, despite the difference in diagnosis, they all appear to have based their opinions on similar histories provided by the plaintiff, so I do not think that whether the plaintiff suffered a Post-Traumatic Stress Disorder or an Adjustment Disorder with Anxiety alters the conclusions I have reached in any material way.
67Ms Pica’s clinical notes serve two purposes – firstly, they demonstrate that the plaintiff is having treatment for what appears to me to be quite serious consequences of the psychiatric injury, and I repeat, serious difficulties when driving and being a passenger in a car. It is the treatment which some of the examining psychiatrists recommend that she have. The last entry in the clinical notes is dated 8 September 2021.[55] The handwriting is difficult to read in parts, but it records that the plaintiff was having difficulty with driving, suffering stress and anxiety, having nightmares every night and impairment of her concentration. Reading back from that clinical note, it would appear that there are very similar notations of those difficulties reported by the plaintiff.
[55] PCB 155
68The plaintiff’s son, Tyson Windsor, swore an affidavit on 7 March 2022[56] in which he gave a before and after picture of his mother, and of relevance, he referred to his mother’s difficulty driving and the extent to which her mental state after the occurrence of the first transport accident has changed. The plaintiff’s husband, Andrew Taylor, swore an affidavit on 8 March 2022[57] in which he also gave a before and after picture of his wife, and of relevance are his observations of her capacity to work and the difficulties she has with driving. Their evidence is consistent with the plaintiff’s evidence of the changes that have occurred in her mental state following the occurrence of the first transport accident and the difficulties which she describes in dealing with her psychiatric injury and its consequences.
[56] PCB 27-30
[57] PCB 31-36
69I do not have any difficulty in concluding that the consequences submitted by the plaintiff easily meet the statutory test. In summary, she has suffered a major psychiatric injury which has required treatment, has reduced her quality of life very significantly, has impacted very seriously on her capacity to drive, and because of her difficulties with driving and also meeting the demands of her work, her capacity to work has been likewise significantly reduced. It would appear that almost every aspect of the plaintiff’s life has been seriously impacted upon.
70I will grant the plaintiff leave to bring a proceeding at common law. In reaching the conclusions that I have, I have made a comparison with like psychiatric impairments and their consequences.
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