Wood v Transport Accident Commission
[2013] VCC 897
•6 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-07-02247
| MICHELE (SHELLEY) WOOD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19, 20 and 21 June 2013 | |
DATE OF JUDGMENT: | 6 August 2013 | |
CASE MAY BE CITED AS: | Wood v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 897 | |
REASONS FOR JUDGMENT
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Subject: LIMITATION OF ACTIONS – ACCIDENT COMPENSATION
Catchwords: Application for extension of time in which to issue proceedings – whether it is just and equitable to extend the time in which the proceedings may be issued – serious injury application – consequences of acquired brain injury – whether the consequences of the injury suffered were “at least very considerable”
Legislation Cited: Limitation of Actions Act 1958; Transport Accident Act 1986;
Cases Cited:Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; GGG v YYY [2011] VSC 429; Koumorou v State of Victoria [1991] 2 VR 265; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith with Mr A Saunders | Slater & Gordon Ltd |
| For the Defendant | Mr J Philbrick with Mr S Martin | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Michele Wood was injured in a transport accident in Melbourne on 3 March 1996, more than seventeen years ago (“the accident”).
2 Ms Wood wishes to bring a claim for damages in respect of injuries suffered by her in the accident.
3 She faces two potential hurdles:
(a) The time in which such a claim is to be commenced has expired and she has applied to the Court for an extension of time in which to issue such a proceeding. Broadly, the issue is whether it is just and reasonable to extend the time. She submits that it is; the defendant submits it is not.
(b) In order to commence a claim for damages in respect of injury arising out of a transport accident, she must first establish that she has suffered a “serious injury” as that term is defined in the Transport Accident Act 1986 (“the TAA”). She alleges that a closed-head injury suffered by her in the accident is a “serious injury”. The defendant denies this is so.
4 By an Originating Motion issued on 15 June 2007, Ms Wood seeks the following orders:
(a)Leave to issue proceedings for the recovery of damages in respect of injuries suffered by her in the transport accident pursuant to s93(4)(d) of the TAA;
(b)That the period within which her action for damages in respect of those injuries be extended, pursuant to s23A of the Limitation of Actions Act 1958 (the “LAA”), is to 15 June 2007 (the “LAA”).
5 I shall deal with each of these applications separately, although the brief background and details of medical treatment set out below are relevant to each.
Background
6 Ms Wood is aged fifty-one. She was educated to Year 12 in Canberra.
7 She obtained employment in a number of administrative roles with Monash, Deakin and Edith Cowan Universities. She was in the Army Reserve for four years part-time.
8 In June 1995, she enlisted in the Royal Australian Air Force (“RAAF”) and graduated from RAAF officer training later that year. She worked in an administrative capacity in the RAAF.
9 That year, she commenced a relationship with a fellow RAAF officer, Christopher Davey. That relationship has continued to the present.
10 On 3 March 1996, she was a pillion passenger on a motorcycle which collided with another car in Melbourne. She was admitted that day to The Alfred hospital, where she remained as an inpatient for three days.
11 Ms Wood alleges that, as a result of the accident, she suffered the following injuries:
(a)A closed-head injury with:
(i)post-traumatic amnesia;
(ii)post-traumatic migraines;
(iii)memory and language problems;
(iv)giddy spells;
(b)A fractured right femur;
(c)Scarring to the right hip and thigh.[1]
[1]Plaintiff’s Court Book (“PCB”) 6. Neither the injury to her leg nor her scarring are the subject of her serious injury application
12 At The Alfred hospital, she underwent surgery consisting of an open reduction and internal fixation of her right femur.
13 Within a few days, she was transferred to the Laverton RAAF Hospital where a closed-head injury and regular giddy symptoms were noted. She continued with rehabilitation at Laverton until late April 1996, when she returned to work at the RAAF Point Cook Base on light duties.
14 Ms Wood completed a Transport Accident Commission (“TAC”) Claim Form in respect of medical and like expenses. Such claim was accepted by the TAC by letter dated 3 April 1996.
15 In November 1997, Ms Wood underwent further surgery, consisting of the removal of pins from her leg.
16 In 2000, Ms Wood graduated with a Masters of Arts (International Relations) Degree from Deakin University. She stated that she had undertaken that course whilst in the RAAF to increase her prospects of an international posting, and was looking forward to a career in the military. She stated that in her last officer evaluation report at the RAAF, she had received exceptionally high scores and was well ranked.[2] This evaluation occurred in approximately 2000, four years or more after the accident.
[2]PCB 22
17 On 7 May 2001, Ms Wood was discharged from the RAAF in circumstances to which I will later return in these reasons.
18 In the period of approximately twelve years since her discharge from the RAAF, she obtained employment in a number of administrative positions working at various universities in Sydney, Darwin and the Gold Coast. She has been employed as a faculty manager at each, and is still employed in such capacity at present. She is presently the Manager of the Arts and Business Faculty of the University of the Sunshine Coast.
19 At about the time of her discharge, or soon thereafter, her partner was transferred to Sydney and she moved there to be with him. There, she obtained employment as a faculty manager with the University of Technology of Sydney. For a part of the time that she worked in Sydney, she resided in or near Winmalee in the Blue Mountains.
20 In late 2003, she moved to Darwin when her partner was transferred there. She obtained employment with the Charles Darwin University in a similar role.
21 In November 2005, she returned to Sydney when her partner was transferred back. She obtained employment with the University of New South Wales (“UNSW”), again as a faculty manager.
22 In late 2011, she moved to Queensland some time after her partner’s transfer there. She resigned from the UNSW and obtained employment with the University of the Sunshine Coast. She remains in that employment at present. She lives on the Sunshine Coast during the week and returns to Brisbane on weekends.
Treatment
23 Ms Wood’s Serious Injury application relates solely to a proposed claim for damages in relation to her closed-head injury and its consequences. She no longer alleges that the injury to her right leg or her scarring amount to a “serious injury” as that term is defined in the s93(17) of the TAA.
24 Although her closed-head injury was noted in The Alfred hospital notes,[3] it does not appear that she received any specific treatment for it there.
[3]PCB 43A
25 Ms Wood was seen by Dr Henryk Kranz, a neurologist, soon after the accident. He took a history that she was troubled since the accident by giddy episodes related to movement or change of position. These were reported as varying in severity from a slight wooziness to quite severe vertigo associated with nausea. Episodes were brief and of less than a minute in duration. Slight movement could increase the problem, depending upon the direction and speed of movement.[4]
[4]Defendant’s Court Book (“DCB”) 1
26 Dr Kranz diagnosed her problem as due to peripheral vestibular dysfunction or damage due to the concussive head injury sustained in the accident. He expected continued slow improvement and, to hasten this, gave her vestibular exercises and suggested the RAAF hospital might prescribe Stemetil, an anti-nausea medication.
27 Perusal of RAAF medical notes from March 1996 to July 1996 discloses a number of complaints by Ms Wood of dizzy spells and headaches.[5] Those records contain numerous references to oral analgesia and Panadeine Forte, but it appears to me that these were likely to have related to ongoing problems with her leg, although they may also have related to headaches.
[5]PCB 43B - 43I
28 On 22 March 1996, a CT scan of Ms Wood’s brain was performed and reported as “NAD” (No Abnormality Detected).[6]
[6]PCB 43F - 43G
29 Between 1997 and May 2001 when she moved to Sydney, Ms Wood does not appear to have received treatment in respect of symptoms of the closed-head injury.
30 In oral evidence, Ms Wood stated that in about August 2003, whilst living in Sydney, she had suffered from a migraine and on one occasion had consulted a doctor at a practice near to the Central Station in Sydney.[7] She could not otherwise identify the doctor or the practice. She said she was prescribed migraine medication.
[7]Transcript (“T”) 58
31 In that period, she also said she attended a local medical centre near to her home in Winmalee, where she presented with dizzy spells, headaches, upper neck, upper back and lower back pain. She identified the doctor seen as a Dr Vial of the Whitecross Medical Centre.[8] She was sent for x-rays of her neck and back.[9] She could not recall if she attended there again.
[8]T59
[9]PCB 39
32 She said she also consulted another doctor in the Blue Mountains area concerning a non-accident related matter requiring urgent treatment but could not identify him.[10]
[10]T62
33 In Sydney, she also saw the University of Technology health service, but not about accident-related complaints.[11]
[11]T61
34 No evidence was tendered from those New South Wales doctors or practices in relation to the period from 1998 up to early 2005.
35 In early 2005, after moving to Darwin, Ms Wood saw general practitioners, Dr Barren and Dr Johns, at the Stuart Park Surgery. At that time, nine years after the accident, she provided a history of recurrent headaches since the accident and of acute neck pain and spasm in the region of the left trapezius. Voltaren (an anti-inflammatory), Panadeine Forte and Zomig (a medication for migraines) were prescribed from time to time between February and October 2005. From the reports of Dr Barren[12] and Dr Johns[13] it is difficult to say whether the analgesic and/or anti-inflammatory medication related to symptoms connected with her closed-head injury or to orthopaedic injuries not relevant to her applications here.
[12]PCB 43M
[13]PCB 44
36 Dr Johns referred Ms Wood to Dr Burrow, a neurologist in Darwin. It seems that he treated her for migraines and for benign positional vertigo.[14]
[14]DCB 50(f)
37 From February to October 2005, Ms Wood saw Ms Alice Thorn, a vestibular physiotherapist in Darwin. Ms Thorn took a history of:
(a) neck pain and headaches on and off since the accident which had become more frequent leading up to February 2005;
(b) giddy spells for two years after the accident which had resurfaced in February 2005;
(c) three to four months of blackouts on a daily basis which had stopped in about August;
(d) severe vertigo leading to brief loss of consciousness.
38 Ms Thorn treated Ms Wood with what she described as “high level balance and habituation exercises”.[15]
[15]PCB 47
39 In March 2003, a TAC Medical Panel, apparently consisting solely of a Dr David Bolzonello, reported that the then current issues were back pain and a neck injury with headaches and dizziness. He expressed the view that, on the information provided, it was not known what had happened between 1998 and “recently” (that is, early 2005).[16]
[16]PCB 43(n)-(o)
40 Ms Wood left Darwin for Sydney in November 2005, again as a result of her partner’s transfer to that city.
41 Between March 2006 and June 2007, she attended on Dr Elena Ryan, a general practitioner of East Balmain who she saw on some nine occasions in that period.[17] On only three of those occasions was there a mention of symptoms that might relate to a closed-head injury, namely episodes of dizziness.
[17]DCB 147-150
42 Ms Wood consulted a general practitioner, Dr Roberts, from November 2008. He obtained from her a history of recurrent giddy spells (four to six episodes per day), migraine headaches, neck pain, pain down the left arm, low-back pain and right hip and ankle pain. He referred her to The Royal Prince Alfred Pain Management Centre (“RPAPMC”) and also to a neurologist, Dr Stephen Reddel.
43 In February 2009, Ms Wood participated in a pain management program at the RPAPMC. This was described as an intensive multi-disciplinary pain management program relating to her chronic pain at multiple sites including her neck, lower back, left arm, right hip and ankle, frequent migraines and recurrent dizzy spells.[18] The program did not result in any apparent improvement. She continued to be prescribed Zomig (for migraine) and anti-inflammatories. Dr Gibson, the Director of Pain Services, reported in January 2008 that she complained of migraines, daily headaches and frequent episodes of dizziness. He noted that her migraines were not associated with any aura, nausea/vomiting, or photo/phone phobia. He thought the diagnosis of “migraine” could therefore be challenged and an alternative diagnosis of cervicogenic headache could be considered. He proposed a trial of various medications for her headaches.[19]
[18]PCB 59
[19]PCB 48B-48(d)
44 Dr Gibson had been told by Ms Wood that she was experiencing four to six dizzy episodes a day and that they could be quite severe, and even associated with impaired vision. He assumed there was middle ear pathology associated with the closed-head injury and proposed a trial of prochloperizine medication.
45 An MRI scan of Ms Wood’s brain was performed at the request of Dr Gibson in April 2009 and was reported as being within normal limits.[20]
[20]PCB 42
46 Dr Stephen Reddel, neurologist, saw Ms Wood on three occasions in 2009 in Sydney. He found no abnormality on examination. He reported that her diagnosis was unclear. He thought it was likely that she had dizzy spells on a migrainous basis. He thought there was a link between non-specific non-vertiginous dizzy spells, ongoing migraines and ongoing anxiety.[21] Dr Reddel arranged for a CT scan of her petrous temporal bones in August 2009 which was reported as showing no abnormality.[22] He planned to trial a number of medications and treatments over time.
[21]PCB 49-49(a)
[22]PCB 43
47 There were no later reports from Dr Reddel or the RPAPMC after 2009. The evidence is silent as to what medications or treatments were trialled or as to the results of them.
48 In a more recent history given relating to this period, Ms Wood stated:
“I had a really fabulous GP just before I left New South Wales so she had made some recommendations about getting a whole bunch of really serious investigations done in New South Wales and then I moved away. In lieu of that she sent me to see a Neurologist (Cecily Lander) here [that is, in Brisbane] and that’s really the only specialist I’ve been to see.”[23]
[23]PCB 139, history provided to Dr Larder
49 There was no evidence from Ms Lander at all and no evidence as to why it was that the investigations were not proceeded with in Brisbane. I consider it most unlikely that the investigations envisaged by Dr Reddel or Dr Gibson could only have been performed in Sydney. It was not clear to me why Ms Wood described Ms Lander as being the only specialist she had been to see. Plainly, she had been referred to many others.
50 The absence of evidence from Ms Lander is significant. I draw the inference that her evidence would not have assisted the plaintiff in her applications before this Court.
51 Ms Wood stated that in 2010 and 2011 she had an increasing amount of time off work. There is no evidence as to what medical advice or treatment she was receiving over that time. In her most recent affidavit, Ms Wood states that she has no regular general practitioner and that there is little by way of treatment that has been suggested to her. She states that she has had investigations from neurologists but no real answers.[24] This is somewhat at odds with the reports of Dr Reddel and Dr Gibson, both of whom referred, in 2009, to proposed trials of different medications and treatments. It may be that she underwent those trials or that she declined to participate further. There was no evidence of what transpired in respect of these trials in the past four years.
[24]PCB 28
(a) The application for extension of time to commence proceedings
52 Section 23A(2) and (3) of the LAA provides as follows:
“(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
53 It is my view that subparagraphs (3)(c) and (d) are not relevant to this application. The meaning of the word “disability” in subparagraph (d) is a reference to legal disability. There is no suggestion that Ms Wood at any time has been under any relevant legal disability.[25] The remaining sub-paragraphs require consideration.
[25]GGG v YYY [2011] VSC 429 at [211]; Koumorou v State of Victoria [1991] 2 VR 265 at 274
54 The principal question to be determined is whether or not it is just and reasonable to order that the period within which an action for damages relating to the accident ought to be extended. The matters set out in s23A(3) of the LAA are not exhaustive but are plainly matters to which the Court is directed to have regard.
The length and reasons for the delay – s23A(3)(a)
55 The cause of action in respect of Ms Wood’s claim for damages for injuries sustained in the accident arose on 3 March 1996. The limitation period in respect of such cause of action expired on 2 March 2002. The application under s93 of the TAA was not issued until 15 June 2007 (more than eleven years after the accident) and was not served upon the defendant until a further year had expired. Service was delayed until investigations were made by Slater & Gordon (by then acting as solicitors for Ms Wood) before a serious injury certificate was sought pursuant to TAC protocols.[26] In that period, a report was obtained from Dr Ryan, and several medico-legal reports were obtained. There was no evidence before the Court as to why the application had taken a further five years to be listed for hearing.
[26]PCB 38(b)
56 There is no doubt that Ms Wood knew very soon after the accident that she had suffered from significant injuries to her leg. She had orthopaedic surgery and obvious scarring.
57 In relation to her head injury, the histories given to virtually all doctors who examined her was that she suffered from headaches and dizzy spells from the time of the accident. Clinical notes confirm this.
58 In about June or July 1998, Ms Wood consulted a solicitor, Mr Tim Connor, in East Melbourne. Ms Wood stated that she instructed Mr Connor to proceed with a common law claim on her behalf, although she did not say what injuries she believed it would relate to. She said that Mr Conner had informed her that in order to do so, she required a serious injury certificate.
59 By letter dated 21 July 1998, Mr Connor wrote to the TAC advising that Ms Wood wished to proceed with a common law claim with regard to scarring on her thigh which was said to constitute a serious disfigurement constituting a “serious injury” as defined in the TAA.[27]
[27]PCB 190
60 Further, by letter dated 9 December 1998, Mr Connor advised the TAC that Ms Wood would also seek a serious injury determination on the basis of loss of body function, that being in relation to loss of function of her leg.[28]
[28]PCB 192
61 I infer that Mr Connor wrote those letters on instructions from Ms Wood.
62 In due course, the TAC rejected Ms Wood’s application for certification in relation to her disfigurement and in relation to the loss of function of her leg.
63 It does not appear that Mr Connor ever made an application to the TAC for serious injury certification with regard to her closed-head injury. Either he was not instructed to do so or he did not consider, on the material before him, that a serious injury application in relation to the closed-head injury was worth considering, or he never considered it at all. I consider that the latter is the least likely.
64 There was no evidence from Mr Connor and no evidence that he was unavailable to attend Court.
65 Ms Wood’s evidence was that, to the best of her recollection, some time in 1999 she was informed by Mr Connor that the TAC had denied her serious injury application and, to this end, she believed that she had no common law rights. In her first affidavit she stated that she had received legal advice in 1999 that she did not have a viable common law claim.[29] In her oral evidence, she said:
“I have no recollection, to be quite honest, of much of which I spoke to Mr Connor about, quite frankly. … in fact, I had to even be reminded of who he was the other day … I couldn’t recall his name, so I have very little recollection of anything that occurred around that time, other than to know that the doctors were saying that my condition was stable and would improve; I was going to get better … .”[30]
[29]PCB 13
[30]T170
66 Given that evidence, the failure by Ms Wood to call Mr Connor was puzzling. As her one-time solicitor acting for her in relation to injuries suffered in the accident, I consider that he is properly described as being in her “camp”. I consider that I am entitled to draw an inference that, had he been called, his evidence would not have advanced Ms Wood’s case. I do not speculate further.
67 Ms Wood could not recall Mr Connor telling her anything about a six-year limitation period. She said that the six-year period was a real surprise to her. She had always had in her mind for some reason that three years was significant – that she needed to be able to demonstrate that she was 30 per cent permanently incapacitated at that three-year point, and that if she was not able to demonstrate that, then the door was slammed closed.[31]
[31]T170-171
68 Ms Wood said her understanding was that a serious injury certificate was required before she could make a common law claim.[32] Further, she said that she had been advised in March 1998 by a neurologist, Dr Lorentz (who had examined her at the request of the TAC), that her giddy spells had stabilised.[33] I note that, in Dr Lorentz’s report, he states that her giddiness was likely to improve.[34]
[32]PCB 9
[33]PCB 11
[34]DCB 16
69 Ms Wood claims that it was not until much later that she appreciated the seriousness of her symptoms resulting from the closed-head injury. She stated that those symptoms deteriorated in 2005, and then again in 2007.
70 She states that, by 2007, her condition had deteriorated to such an extent that she decided to take further action in relation to any potential common law claim she might have. It was at that time that she retained her current solicitors, Slater & Gordon.[35]
[35]PCB 12
71 The defendant disputes that there was any significant difference in Ms Wood’s condition in the years following 1998. It disputes there was any significant exacerbation of her condition in 2005 or 2007. The defendant points to a letter written by Ms Wood to the TAC dated 17 November 1997 in which she referred to the side effects of her head injury. She advised that she had been experiencing giddy spells on a frequent and regular basis since the accident – “up to fifty episodes per day”.[36] She described these spells as “disturbing”. The defendant submits that it should not be accepted that Ms Wood did not appreciate relatively soon after the accident that her symptoms were serious and disturbing.
[36]PCB 43(k)
72 In her affidavit, Ms Wood deposed that she had experienced dizzy spells and migraines since the accident but that these became worse from about 2003.[37]
[37]PCB 11
73 The defendant submitted that, in considering any alleged deterioration in 2005, it would be relevant to look at the extent and nature of complaints of symptoms and any treatment in the period between 1998 and 2005 in order to make any comparison. Over that period, Ms Wood had seen a number of doctors in Sydney and in the Blue Mountains. No evidence was produced from them.
74 The history taken by Dr Johns in Darwin in February 2005 was:
“[B]ad giddy spells – started after the accident, used to wake her at night in the first 2 yrs, then only when tired and stressed but more freq in last yr or 2 esp since neck and back pain worsening
now daily (15-20 times) since neck exacerbation, can’t bend over without giddy spell even to pat the dog, yesterday even while typing on computer
feels lightheaded for up to an hr prior to a giddy spell … .
will occas almost blackout – when bends over feels like body is moving, world spinning, then vision will cloud over back, see stars, has to hold onto something, passes in 20 secs
also very bad headaches have started recurring since 2001– lasts 3-4 days at a time, nothing helps, has to sleep, wakes her in middle of night, gets spots before eyes, cluster used to be every 3 months, now every 3 wks
has always just tried to manage as worsened in last 2 years but this recent exacerbation has made her realize needs to do something about this … .
need to investigate cause of headaches, giddiness further – best done by neurologist
also suggest get balance assessment done by physio that specializes in vertigo … .”[38]
(sic)
[38]PCB 44-5
75 That history confirms some worsening of headaches and giddiness over the couple of years leading up to early 2005. In Darwin, she did not seek any treatment in 2004, but in 2005 attended Dr Johns, who referred her to Ms Thorn (vestibular physiotherapist) and to Dr Burrow (neurologist). Ms Thorn took a history of blackouts on a daily basis when she saw her in 2005.[39]
[39]PCB 46
76 The history given to Dr Ryan in Sydney in May 2006 was that she had been better than usual and had not needed physiotherapy since October 2005. However, she had noticed a return of pain and giddiness and had requested a referral to a local physiotherapist, which was provided. In May 2007, she returned to Dr Ryan complaining of an increased incidence of dizzy spells, describing incidents where she was lightheaded, unsteady, and she might pass out. These episodes were reported as occurring several times per day.[40]
[40]PCB 48
77 Ms Wood first consulted Slater & Gordon in May 2007. The Originating Motion was issued by that firm on 6 July 2007. It was not served on the defendant until 16 June 2008. Ms Wood said that it was on the advice of her father that she had decided to seek a second legal opinion. She did not return to Mr Connor, and provided no reason for not doing so.
78 Normally in applications under s23A, the period of delay to be considered is the period between when the cause of action arose (March 1996) and the date the proceeding was issued. In a case to which s93 of the TAA applies, I consider that this would be the date the serious injury application was brought. Normally the proceeding would be served very soon after it was issued. However, here it was not served for nearly a year. I consider that that additional delay of a further year is relevant and has not been adequately explained.
79 Ms Wood submitted that her frequent interstate moves made legal advice difficult to obtain. True, she did move four times between Victoria, New South Wales and Darwin. However, I do not accept that such moves made it difficult to obtain legal advice. In this day and age, it could hardly be said that she was living in isolation. Solicitors do practice in or near to all the places where she worked or resided. In any event, if she wished to clarify her legal rights, by far the easiest course would have been to contact Mr Connor.
Likely prejudice to the Defendant – s23A(3)(b)
80 The defendant submitted that it was prejudiced by the delay. Prejudice can be general or specific.
81 It was conceded that the circumstances of the accident were such that negligence would not be in issue at trial. The only issue would be an assessment of damages. Central to that issue would be the identification of the injuries suffered by Ms Wood in the accident and their consequences for her.
82 I was referred to the oft-quoted passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor.[41] I have no difficulty accepting that a delay of eleven or twelve years is a very long delay and that general prejudice is likely to result from that delay.
[41](1996) 186 CLR 541 at 551-3
83 In terms of specific prejudice, the defendant submits that it is disadvantaged in not having, at its disposal, full medical records of Ms Wood’s treatment between 1998 and 2005 and details of the histories provided by her treating doctors over that period. Ms Wood was unable to recall the names or exact locations of a doctor and clinic she attended near Central Station in Sydney, nor one of the clinics she attended in the Blue Mountains region. She did however recall Dr Vial from the Whitecross Clinic in Winmalee as a doctor who had seen her in that period. It is unclear as to whether he is still in practice or whether his clinical notes are still available. Whilst I accept that there may be a degree of prejudice associated with this, the defendant does have available to it the reports and records of the Department of Defence from early 1996 until 2001, when Ms Wood left the RAAF, Dr Kranz’s report of March 1996, and the reports of Dr Prakash and Dr Lorentz of March 1998. In addition, it will have a large number of reports from treating and medico-legal doctors from 2005 until the present. There is no evidence that the authors of those many reports are not available to give evidence at a future trial.
84 An issue of some importance in the proposed proceeding will be the circumstances in which Ms Wood resigned from the RAAF. Documents written by her at the time indicate that her resignation had nothing to do with any of the injuries suffered by her in the accident. However, in her evidence in these applications, she maintained that her injuries played a large part in her decision to resign and end her chosen career.[42] I accept that the defendant will be significantly prejudiced by the delay in its investigation of this aspect of the claim. Its ability to track down RAAF witnesses who worked with Ms Wood at the time, and who were likely to have insight into why her RAAF career ended, is likely to be difficult, more than twelve years after the event.
[42]PCB 10
85 There may be some issue in the future concerning availability of clinical records relating to Ms Wood prior to the accident. From 1995, when she joined the RAAF, these would be RAAF medical records. There was no evidence lead by the TAC that such records were unavailable. Further, there was no evidence concerning the existence of medical records before she joined the RAAF. I accept that it is likely to be difficult to locate such records.
The extent to which the Plaintiff acted promptly and reasonably – s23A(3)(e)
86 I am required to have regard to the extent to which Ms Wood acted promptly and reasonably once she knew that the act or omission of the defendant to which the injury was attributable might be capable at that time of giving rise to an action for damages. In the context of this application, I consider that the reference in the section to an “act or omission of the defendant” means an act or omission of the likely defendant in the proposed proceeding – the driver of the other vehicle involved in the accident.
87 Ms Wood’s argument is that she did not know that the acts of the other driver might be capable of giving rise to an action for damages until she was advised by Slater & Gordon in mid 2007. I accept her submission that her right to damages was, in turn, dependant upon her being able to establish that she had suffered a serious injury in the accident. She had previously been told that the TAC had refused to grant her a serious injury certificate. The applications made for such certifications in 1998 were only in regard to her leg injury and scarring. Mr Connor might or might not have given consideration at that time as to whether the consequences of her closed-head injury were serious enough to qualify, at least at that time.
88 It follows that in order to know that she might have a right to claim common law damages, she would need to know that she had a serious injury and, if necessary, that it was possible to challenge in Court the decision of the TAC to refuse her application.
89 It is difficult to draw any conclusions on this point without evidence from Mr Connor. Even if his file had been lost, he was likely to have been able to give evidence as to the system he had regarding advice concerning such matters to his clients. I have difficulty concluding that a competent solicitor would not have advised their client that a refusal by the TAC to grant such a certificate could be challenged by application to this Court. Ms Wood had no memory as to what she had been told by Mr Connor and he was not called.
90 I consider that by the early 2000s, Ms Wood would have been aware that her symptoms had not recovered to the degree she might earlier have anticipated. I do not consider that she has adequately explained the delay until mid 2007 before she sought further legal advice. Further, I do not consider that the delay between consultation with Slater & Gordon in May 2007 and the service of the application in June 2008 has been adequately explained.
Steps taken by the Plaintiff to obtain advice – s23A(3)(f)
91 I am required to have regard to the steps taken by Ms Wood to obtain medical, legal or other expert advice, and the nature of advice received.
92 She took no steps to obtain further legal advice until mid 2007 notwithstanding her evidence that her symptoms had continued from the early 2000s until that time. However, if I were to accept that her condition did deteriorate in 2005 to the extent indicated by her to Dr Johns, Ms Thorn and Dr Burrow, I consider that the steps taken by her to obtain further legal advice at that time were inadequate. She made no attempt to obtain legal advice until more than two years later. In her oral evidence, she said she only did so then at the suggestion of her father. There was no reference to her father’s suggestion in her affidavits.
Conclusion with regard to the extension application
93 A number of authorities have stated that the trial judge in such an application must “synthesise” a number of competing considerations in reaching a decision.
94 Looking at all of the circumstances of the application and at the matters set out in s23A(2) and (3), there are two aspects that stand out.
95 Firstly, on any view, the period of delay is very long and, secondly, in my view, and for the reasons described above, it is likely to give rise to both general and specific prejudice to the defendant.
96 In all of the circumstances, Ms Wood has not satisfied me that it would be just and reasonable to grant the extension in respect of the proposed claim for damages in respect of injuries suffered by her in the accident.
(b) Serious injury application
97 Although, strictly speaking, it is unnecessary to consider the remaining issue as to whether or not Ms Wood has suffered a serious injury in the accident, it is preferable that I do so in the event that my decision concerning the extension application is reversed on appeal. Both parties urged me to take this approach.
98 The term “serious injury” is defined in s93(17) of the TAA (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function.”
99 Initially, Ms Wood claimed that injuries suffered by her that were serious were her right leg injury, her closed-head injury and her disfigurement. During the hearing of the application, Counsel for Ms Wood advised the Court that the application as it related to her leg and disfigurement was abandoned. Accordingly, the relevant body function alleged by Ms Wood to be lost or impaired is that of the head or brain.
100 In order that an injury be considered to be “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 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 merely significant or marked.[43]
[43] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
101 Ms Wood alleges that the consequences of her injury satisfy the threshold test as being “at least very considerable”. The defendant denies that this is so. It is this issue which falls to be determined.
102 In determining the consequences of her injury, I am required to look at those consequences as at the date of the hearing of her application, as opposed to any earlier time.
103 Ms Wood alleges that the consequences of her head injury are:
(a) weekly migraines;
(b) daily dizzy spells;
(c) regular blackouts; and
(d) mild cognitive deficits.
104 Ms Wood complains of an extensive range of symptoms that might, if accepted, be consequences of her closed-head injury. The defendant submitted that the lifestyle led by Ms Wood in the last five or six years is not consistent with a “serious injury” as defined in the TAA. It is submitted by the defendant that the histories taken by various doctors are not consistent with the actual lifestyle being led by her.
105 Between 2007 and 2013, Ms Wood has been examined by four psychiatrists, three neuropsychologists and four neurologists.
Psychiatrists
106 Ms Wood has been examined by psychiatrists, Dr Nigel Strauss, Dr Andrew Firestone, Dr Nathan Serry and Dr Gary Larder.
Dr Nigel Strauss
107 Dr Strauss examined Ms Wood in October 2007 at the request of her solicitors. He took a history of the accident and of her injuries. Ms Wood told him that she had had to give up a number of activities following the accident; namely, motorbike riding (although she seems to have resumed this), touch football, scuba diving and snow skiing.
108 In relation to her head injury, the history obtained by Dr Strauss was that since the accident, she had suffered quite severe and significant headaches which she referred to as migraines, and that every day she had dizzy spells which could become so severe that she could fall over and injure herself.
109 At the time of Dr Strauss’ examination, Ms Wood had been employed by the UNSW for about two-and-a-half years. She described her work as full-time administrative work and said that she could cope with it and that she rarely took time off.
110 Ms Wood told Dr Strauss that she slept poorly (although the reason for this was not explored). She said that she had become cranky and irritable and very unsympathetic to others’ problems. She described herself as being edgy, emotional and tearful but not depressed or suicidal. At first, after the accident, she said she was nervous on motorbikes, but this was no longer the case. She did not like driving because of dizziness. She had no nightmares or flashbacks.
111 Since the accident, she had not had any psychological or psychiatric treatment and she had not taken psychotropic medication.
112 Dr Strauss concluded that Ms Wood was not suffering from a diagnosable psychiatric illness. She had no post-traumatic stress symptoms. He could not say that she had a pain disorder. She did have a wider and generalised range of physical symptoms which might suggest that psychological factors were involved but he could not say that definitely. He was not convinced that organic factors could not fully explain her presentation. He said that if there were other reports by physicians or specialist orthopaedic surgeons suggesting that her pain could not be explained orthopaedically, then he would be prepared to review her circumstances.
Dr Andrew Firestone
113 Dr Firestone examined Ms Wood at the request of the defendant in June 2010.
114 He took a history from Ms Wood that, prior to the accident, she had never suffered from migraines but had occasionally had headaches.
115 She was, at that time, taking medication for migraines – Nurofen Plus – but, if that did not work, Zomig. Her medical complaints were of migraines, pain in the left side of her neck and left shoulder, central low-back pain, leg pain and giddiness.
116 She described her giddy episodes as varying in severity. She said that not a day had passed since the accident without at least six giddy spells and there may well have been more on some days. Sometimes they were almost continuous. They could also wake her from sleep. She described the room as spinning. In the most severe episodes, she would lose vision altogether for half to one minute. During that period she could only see darkness, with sparkling in it. This would be accompanied by a very severe pain in her temples. When she became giddy in a shopping centre, she “goes to ground” at times.[44] That is, she placed herself on the ground to be secure. Whenever she entered a room, she surveyed it, so that she knew where to hold on if necessary.
[44]DCB 27
117 She told Dr Firestone that she was cranky, crabby and tearful and that she resented the loss of her career.
118 Dr Firestone considered that Ms Wood had no psychiatric illness resulting from the effects of the accident or from any other cause.
Dr Nathan Serry
119 Dr Nathan Serry examined Ms Wood at the request of her solicitors in November 2011. He took a history from her of her being angry, crabby and emotional. He noted that she had returned to motorbike riding and was reasonably comfortable riding, but is more watchful and cautious. She had only been a pillion passenger once or twice since the accident.
120 Dr Serry considered that there was a degree of anxiety, apprehension and frustration about her persistent physical symptoms and some very mild residual post-traumatic anxiety features. Cognitive assessment was essentially unremarkable on brief formal testing although Ms Wood had complaints in relation to short-term memory. He noted complaints of recurrent dizzy episodes and headaches. He thought that there were some adjustment issues to her physical symptoms, but these would not attract a specific psychiatric diagnosis. She had some very mild traumatisation features but not a full blown Post-Traumatic Stress Disorder. It was conceivable, he thought, that she had suffered an impairment in complex integrated cerebral functioning as a consequence of her closed head injury.
Dr Gary Larder
121 Dr Gary Larder examined Ms Wood at the request of her solicitors in April 2013. Dr Larder had read a report of Ms Carol Burton, neuropsychologist, of November 2007 and thought that it indicated that there had been some reduction in memory function and language function from her premorbid superior levels but which were subtle. Those reductions had not impaired her capacity to maintain employment. He said that he was unable to determine if Ms Wood had sustained any head injury or brain damage prior to 3 March 1996 or afterwards. He considered that her cognitive functioning difficulties were a direct result of the blow or blows to her head sustained in the accident of 3 March 1996. The functional difficulties appear to be that she had recurrent problems with her balance since the accident; she loses a “sense of where I am”; she had visual blackouts but not unconsciousness and which may last up to 30 seconds; she had recurrent headaches, some memory problems and some altered language functioning. He thought her likely prognosis for recovery was poor. He thought there had been a:
“… significant impact over the course of her life having regard to capacity for her ability to maintain employment, domestic duties, social and leisure activities.”[45]
[45]PCB 132
122 Dr Larder said that she had been able to manage the dysfunction reported and maintain gainful employment. He thought the nature of her condition had a clear organic basis. He thought there was no medical treatment which had resulted in her symptoms. She did not need analgesia or have a need for pain control. She did not require any psychiatric or psychological treatment.
123 Dr Larder had taken a very detailed history from Ms Wood. That history was set out in an appendix to his report. She was presently working at a university managing the Faculty of Arts and Business. She had been doing similar work for 26 years. She was currently working 37.5 hours per week, full time. She had been involved in her current role for about 15 months. She said, “It’s good, busy.”[46]
[46]PCB 139
124 Ms Wood had stated to Dr Larder that she had a Master of Arts in International Relations through Deakin University. She also told him of her then current studies:
“I’m part way through (it’s on hold) a Master of Arts in Egyptology. I started that in 2011 and it’s on hold because it’s only available face to face at Macquarie University so when we moved up here [Queensland] I had to cease.”[47]
[47]PCB 140
125 Ms Wood recounted that her partner had moved from New South Wales to Queensland at the beginning of 2009 for work. He was still a serving officer of the RAAF. She stated that “I followed when I eventually got work”. When asked how that was working out, she said “Yeah, it’s OK”.[48]
[48]PCB 140
126 Ms Wood provided a history that scuba diving was something she had been doing most recently. She said:
“We’ve been going off a boat so we tend to scuba dive when we go overseas on holidays so we live aboard for 7/8 days and just scuba dive the whole time … the most recent was Thailand, bussed off to a marina, get on a little boat, go out to a big boat in the middle of the ocean and then live out there for 7 days; scuba dive, scuba dive, scuba dive. We can dive anything up to 30 metres. I think I got my ticket back in 1993.”[49]
[49]PCB 141-2
127 Ms Wood was asked if she had had any complications from diving. She replied that it had been difficult, particularly with her neck and back problems that she had as a consequence of the accident. She had stopped shore diving which involves suiting up and literally walking into the water with very heavy equipment. She could not do that type of diving any more. She said that the giddy spells and the concerns that she had about them caused her to dive in a particular way. She was “very very very clingy” to her partner under the water, to make sure that if she suffered any disorientation that he was able to continue to guide her. They had developed various hand signals over the years to assist her in doing so. She told Dr Larder that she could not dive if her partner was not there.
128 Ms Wood had also told Dr Larder on that occasion that:
“At the moment I’m working madly to set up a self managed super fund so that I can prepare for our retirement so we’re doing a lot of planning around what that could look like. I’m always planning my next overseas trip. One of the things that I was involved in just over the weekend was a little while ago I nominated to do some volunteer work with the UN. An opportunity was given to me on the weekend to undertake a volunteer assignment over in Afghanistan. That’s one of the things I’ve been looking at doing; a voluntary assignment with an NGO or something so I’m making plans around that, if we can do it.”[50]
[50]PCB 142
129 Dr Larder considered that clinically, gross cognitive functioning was normal and that her intelligence was in the superior range.
130 He considered that the accident had left Ms Wood with four “syndromes of disturbance”. These were:
· right femur symptoms
· neck and shoulder symptoms
· a neurological syndrome of dysfunction (“head spins”)
· a mild syndrome of driver-related anxiety.
Neurologists
131 Ms Wood has been examined by Dr Leslie Sedal, Professor Steven Davis, Dr Don Todman and Associate Professor Richard Stark.
Dr Leslie Sedal
132 Dr Sedal examined Ms Wood at the request of her solicitors in November 2007 and again in March 2012. On the most recent occasion, he had had access to the report of Carol Burton which he said suggested subtle organic damage relating to word finding, verbal material and working memory. However, the testing also suggested the presence of depression which can also affect these functions. Dr Sedal considered that Ms Wood was suffering from both subtle organic residual impairment as well as the effects of depression.
133 Originally, Dr Sedal considered that Ms Wood’s dizzy spells were most likely due to damage to one or both of the labyrinths; however, he noted that these had been tested at The Royal Prince Alfred Hospital in Sydney and no abnormality had been found. He stated:
“I therefore wonder whether her episodes of dizziness and vertigo are due to migrainous vertigo. In recent years, we have become increasingly aware that migraine sufferers may suffer from episodes of dizziness and vertigo independent of their attacks of headache. It is thought that migrainous vertigo involves multiple parts of the vestibular system … .”[51]
[51]PCB 107
134 I note that the history obtained by Dr Sedal from Ms Wood in March 2012 included a statement that, before her accident, she was physically active, enjoying, amongst other things, swimming and scuba diving. She told Dr Sedal she was not able to do these things now. That history is incorrect as she was, and is, plainly capable of partaking in swimming and scuba diving.
Professor Steven Davis
135 Professor Davis examined Ms Wood at the request of the defendant in June 2010. He was of the view that, although her CT brain scan had been normal, she might well have had some very low-level memory difficulties following this type of accident. However, there had been no significant impact on her ability to perform administrative work due to the head injury.
136 Professor Davis did not consider that her frequent refractory migraine headaches were due to the head injury. He thought psychological factors could well be pertinent.
137 Professor Davis thought that the giddy spells complained of might possibly be a form of vestibular migraine, although he noted that vestibular function tests had been normal. There were no objective features of peripheral vestibulopathy. He considered that her working capacity in her current occupation seemed to be uncompromised.
Dr Don Todman
138 Dr Todman saw Ms Wood at the request of her solicitors in April 2013. The history taken by him at that time was that she previously enjoyed golf and scuba diving but had had to either reduce or modify these considerably. He did not obtain details of such reduction or modification.
139 Dr Todman thought there had been a closed-head injury associated with post-traumatic headaches as well as post-traumatic vertigo and some episodes of visual loss which were of “uncertain origin”. In addition, she had a form of chronic musculoligamentous strain to her neck and low back.
Associate Professor Richard Stark
140 Associate Professor Richard Stark examined Ms Wood at the request of the defendant in May 2013. He opined that her post-traumatic amnesia of about six hours and Glasgow coma score when first assessed would suggest that she had suffered a head injury of mild but not trivial degree. He thought that a head injury of this type could produce benign positional vertigo as was detected a short while after the accident. He thought that an injury of this degree would not usually produce lasting cognitive difficulties.
141 Professor Stark considered that the description by Ms Wood of her headaches would meet the criteria for a diagnosis of migraine although there was no objective test to diagnose that. Such diagnosis would depend entirely upon the history provided. He thought there would be no real doubt about the diagnosis of migraine, assuming the history obtained from her was accurate. He thought that the dizzy spells originally reported to Dr Kranz were suggestive of benign positional vertigo, but the ongoing dizzy spells now described were not typical of that condition and it is likely that they are related to migraine.
142 Trauma to the head, he reported, may undoubtedly be a factor in aggravating a tendency to migraine and therefore it was plausible that there was at least some contribution from the accident to Ms Wood’s migraines. If the migraines began soon after the accident, he believed there would be a link between them and the accident.
143 Professor Stark considered that there did seem to be a mismatch between the frequency and severity of symptoms that Ms Wood described and the fact that she had been able to function with only minimal interruption in what sounds like a highly responsible job. The discrepancies could potentially be explained by a degree of elaboration or over emphasis when giving her history or by an unusually stoic nature, enabling her to function at work despite substantial symptoms. He thought that the level of her symptoms as indicated to Dr Burton seemed at odds with her capacity to function in her employment.
144 I note that Professor Stark made reference to documentation completed by a Dr Cummins. Neither party tendered any report from that doctor.
Neuropsychologists
145 Ms Wood was examined by three neuro-psychologists: Ms Carol Burton, Mr Ian Stuart and Dr J A Ewing.
Ms Carol Burton
146 Ms Carol Burton examined Ms Wood at the request of her solicitors in November 2007. The complaints made by Ms Wood at that time were:
(a)severe migraines which occur approximately once a week and may last for three days;
(b)giddy spells – generally brief but occurred daily. When they were severe her vision blacked out, so she could not see. At its mildest, it was a spinning of the head. When she was walking, she always consciously tried to walk close to something so she could grab onto it, such as a wall or steps. The giddiness interfered with vacuuming or moving her head quickly. She worried about driving a car because of episodes of giddiness which, when experienced, she became quite disorientated. She would stop the car when having a bad spell.
(c)severe neck and upper back pain;
(d)problems with her right leg;
(e)problems with hearing which she had been told by a specialist were not accident related;
(f)word finding difficulties, first apparent soon after the accident and still present;
(g)concern about mid-term memory not being as good as it was – her long-term and her immediate memory were both good;
(h)she had an altered mood and was much crankier than she had previously been;
(i)she suffered from disturbed sleep, largely because of back pain, but often woke with a migraine.
147 Ms Burton conducted a number of neuropsychological investigations. She concluded that Ms Wood was generally functioning intellectually at a level consistent with premorbid estimates (that is, high to average) and that she had stronger non-verbal intellectual and visual organisational skills than verbal comprehension. Some areas of weakness were evident however – most notably in mildly reduced working memory capacity and in particular, reduced complex auditory attention, mildly reduced divided attention, mental manipulation of information, mild reduction in verbal conceptual skills, together with reduced verbal fluency. New verbal learning capacities were mildly reduced. She needed time to produce information. Her recall was still below that expected of someone of her measured intelligence.
148 The pattern of deficits delineated suggested disruption of some executive functions, many typically associated with the effects of a mild head injury (possibly related to disruption of prefrontal connections).
149 Ms Wood’s reporting of symptoms on questionnaires was strongly suggestive of a moderate to severe Depressive Disorder and mild anxiety. Ms Burton thought that depression had known cognitive effects, typically evident in reduced auditory attention, concentration and new learning, slowed processing, blunted thinking, as well as executive dysfunction. She thought that Ms Wood’s depressed mood may account for some of the deficits elicited or may have contributed to or exacerbated or obscured underlying deficits due to mild head injury. Symptoms reported were strongly suggestive of reactive depression associated with the impact on her life of her physical disabilities (giddiness, headaches and chronic pain).
150 Ms Burton noted that Ms Wood was not receiving any psychological treatment and recommended that she be referred for professional, clinical or psychological intervention and or referred to a psychiatrist.
151 Ms Burton considered Ms Wood had suffered a mild head injury and since the accident, had suffered recurrent giddy spells, persistent neck, upper and lower back stiffness and pain, headaches or migraines, fatigue and mild word finding difficulties. Plainly, Ms Burton did not consider that all of these symptoms related to Ms Wood’s closed-head injury.
152 Ms Burton thought that Ms Wood’s management of her pain might improve with clinical psychological input and or participation in a multidisciplinary pain management program. She thought that she would require ongoing or intermittent physiotherapy to manage both dizziness, headaches and neck and back pain.
Mr Ian Stuart
153 Mr Ian Stuart examined Ms Wood in July 2010 at the request of the defendant. He took a history from Ms Wood of various practitioners who had seen her in the past including Mr Kranz, Dr Roberts, Ms Thorne, Dr Steven Reddel, Dr Elena Ryan and also a Dr Graham Romans, who had apparently seen her in 2007 for musculoskeletal manipulation for her headaches and dizziness. Dr Stuart pointed out that Dr Elena Ryan had reported that, despite Dr Romans’ treatment, Ms Wood had presented in May 2007 with an increased incidence of dizzy spells. These were said to be occurring several times a day. No evidence was tendered from Dr Romans.
154 Ms Wood told Dr Stuart that never a day went past without half-a-dozen dizzy spells and that her situation was deteriorating in relation to those spells. She had told him that there were times when she misunderstood questions in interview situations and she believed that she had missed out on jobs as a result. Ms Wood gave no evidence of such interviews or of missing out on any jobs she had applied for.
155 Further, Ms Wood told Dr Stuart that her head pain was the most frequent but neck pain was also always there. There was not a day without pain. She advised him that she suffered from vertigo and that, at worst, her vision became black. These incidents were said to last for between 30 and 60 minutes and that these episodes may occur between six and fifty times in a day. She said that she felt awful, stumbled, and fell onto walls. She had blank spots in her memory and thought that her memory had got worse over the years, particularly over the previous eighteen months. When questioned about current treatment, she said that she was not having any “counselling” but that she was having “coaching”. This was not enlarged upon. Ms Wood gave no evidence of such coaching.
156 Dr Stuart conducted a large number of tests similar to those conducted earlier by Ms Burton. He concluded that Ms Wood was in the superior range of intelligence; there was no evidence of impairment in her executive functioning; she had high-level language skills consistent with her intelligence; her idea generation was reasonably effective; there was no impairment into her planning and organisational skills. She performed at a much lower level than expected in her recall of a passage of prose, showing some lack of detail in her memory. He considered that she had a very significant impairment in the span of working memory.
157 Dr Stuart considered that Ms Wood was suffering from a considerable degree of stress and anxiety. She also indicated to him that she suffered from severe chronic pain which he considered, in itself, can produce very high levels of anxiety and distress. Dr Stuart considered that Ms Wood was suffering from a severe Anxiety Disorder with a pervasive impairment in her attention and concentration which had affected her performance on a range of tests of verbal memory and other aspects of her cognitive functioning. He thought this was a matter of some concern as the results indicated that she would be finding it difficult to meet the demands of her job as a general manager of the faculty. He said her symptoms continue to affect her to a severe degree. It was reasonable to attribute some of these symptoms (which, he did not say) to the accident and to chronic pain resulting from the accident. However, the range and severity of her symptoms and the severity of her distress raised the question of a psychiatric condition. He thought that psychiatric opinion would be important in her future management.
Dr J A Ewing
158 Dr J A Ewing examined Ms Wood at the request of her solicitors in April 2013. He took a history, amongst other matters, that she had completed a TAFE course in Indonesian since the accident and had also enrolled in a Masters Degree in Egyptology, wherein she had obtained a high distinction in hieroglyphics.
159 Ms Wood had told Dr Ewing that Ms Thorne, the vestibular physiotherapist, had, in 2005, introduced a range of exercises to help her cope with her dizzy spells. She told Dr Ewing that she continued to use those home exercises on an intermittent basis. Dr Ewing had perused a number of documents relating to treatment and examinations of Ms Wood, including those relating to a pain management program in which she had participated in February 2009. He noted that she had made a number of gains in managing her physical symptoms and had later reported being able to tolerate running for 5 kilometres and taking pole dancing classes.
160 Dr Ewing conducted a number of neuropsychological tests. On the basis of those tests, he found that her working memory and speed of processing indices were in the average and above average range.
161 In summary, Dr Ewing considered that these tests suggested that Ms Wood had sustained a significant closed-head injury, with the likely severity of trauma to the brain being in the complicated mild to moderate category. He noted that the cause of her vertigo had been difficult to diagnose and noted, from the neurological opinions provided to him, that they are related to post-traumatic migraine. He considered that his findings were similar to those conducted by Ms Burton in 2007 and Dr Stuart in 2010.
162 Dr Ewing considered that Ms Wood’s complaints of headaches, dizziness, fatigue, impaired concentration and short-term memory, word finding difficulties, reduced temper control and increased emotionality were consistent with a persistent post-concussional syndrome. She also appeared to be suffering from anxiety and depression. He considered that there were subtle mild but significant difficulties evident in the following areas:
·verbal abstract reasoning/concept formation (possibly reflecting expressive difficulties)
·higher order word search/verbal fluency
·verbal processing speed
·sustained attention
·working memory/susceptibility to stimulus overload
·selective attention (variable, may depend on fatigue)
·susceptibility to interference effects on memory tasks
·difficulty retrieving learnt information without a prompt.
163 He considered that her neuropsychological profile was consistent with her subjective complaints. Overall, the profile suggested a mild decline in higher order cognitive efficiency, especially with regard to verbal processing. Her performances, when tested, generally remained within normal limits but represented a decline from her premorbid above average level and hence would be subjectively experienced by her as significantly different from her usual abilities. They were also consistent with a persistent post-concussion syndrome. In this case, it was suggestive of organic contribution to her difficulties. The profile would be consistent, he thought, with subtle selective impact on subcortical left frontal or left cerebellar regions which, in turn, was consistent with the findings of the vestibular physiotherapist, Ms Thorne. He thought her neuropsychological profile could be considered permanent from a “medico-legal viewpoint”. He did not think there was any current psychiatric disorder.
164 In relation to employment, he was of the view that she had been functioning well as a university administrator and that she compensated for her cognitive difficulties through note taking and pacing and managed her pain and giddiness with a number of strategies. He thought this would be likely to remain the case indefinitely.
165 On the basis of those neuropsychological reports, I find it is likely that Ms Wood has suffered some mild or subtle cognitive deficits as a consequence of the accident, although the diagnosis is difficult because of a degree of depression present which might account for some of those deficits. The deficits identified relate to some memory and concentration problems and some reduced verbal conceptual skills and reduced verbal fluency.
166 I should mention however, that my observations of Ms Wood as she gave her evidence over a considerable time, was that she appeared to have a very good memory for events going back some seventeen years and that she had no obvious verbal problems. She gave evidence with clarity and in a manner one would expect of an intelligent, well educated person. She did not appear to encounter word finding problems in Court.
Findings in relation to diagnoses of injury
167 On the basis of the evidence of the four psychiatrists, I do not consider that Ms Wood has suffered any psychiatric injury or dysfunction of significance as a result of the accident.
168 On the basis of the evidence of the neurologists referred to above, I consider that it is likely that, as a consequence of a closed-head injury, Ms Wood suffered from migraines and migraine-related dizzy spells/positional vertigo.
169 On the basis of the evidence of the neuropsychologists referred to above, I consider that it is likely that Ms Wood suffered a mild head injury with a post-concessional syndrome responsible for headaches or migraines, recurrent giddy spells, fatigue, reduced temper control, and some mild word finding difficulties.
Consequences of injury
170 It was submitted for the plaintiff that the consequences of her closed-head injury were:
(a)regular headaches and migraines;
(b)recurrent giddy spells;
(c)recurrent blackouts;
(d)reduced work performances;
(e)inability to find appropriate words at time;
(f)reduced memory and concentration;
(g)the loss of her career with the RAAF;
(h)the need for medication for migraines;
(i)reduced socialising;
(j)symptoms of giddiness which can cause her to appear drunk, overbalance for no reason, and collide with furniture or walls;
(k)reduced sporting activities including hockey, touch football and snow skiing, inability to scuba dive independently;
(l)reduced work performance as a consequence of migraines and dizzy spells.
171 It was submitted for the defendant that when one looked at the employment and recreational history of Ms Wood, it was difficult to conceive that the consequences of her closed-head injury could, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as more than significant or marked and at least very considerable. Those submissions emphasised the following matters:
(a)Ms Wood had, since about 2001, been able to hold down relatively high powered and responsible work positions as a faculty manager for various universities;
(b)On each occasion her partner had been transferred interstate, she had been able to move seamlessly from one position to another up to the present time;
(c)At no time had she left any of those positions for reasons connected with her injuries. Rather, she had resigned voluntarily from those positions and moved closer to where her husband had been stationed;
(d)Her ability to drive a substantial distance to and from work each day and her ability to partake regularly in scuba diving to substantial depths was not consistent with the history of headaches, migraines and blackouts alleged by her;
(e)She had resigned from the RAAF for reasons quite unconnected with her injuries. It submitted her evidence to the contrary ought not be accepted and reflected poorly on her general credit.
172 Having observed Ms Wood give evidence, I formed the conclusion that she was an intelligent woman. I was troubled by a number of aspects of her evidence.
173 With regard to her resignation from the RAAF in May 2001, I note that Ms Wood applied to resign from the RAAF. She was not requested, let alone forced to do so.
174 I note that on 21 December 2000, Ms Wood had requested a transfer to the legal category of the RAAF, indicating that she wished to pursue full-time law studies commencing in semester 1 of 2001. That application was refused. The evidence did not disclose the reason for the refusal but there was no suggestion by Ms Wood that there was any link between such refusal and her injuries.
175 Up until the time of her resignation, Ms Wood had worked in an administrative capacity with the RAAF. Her evidence was that in either late 2000 or early 2001, she had failed a physical fitness test which she said was a compulsory prerequisite to remaining in the RAAF, regardless of what position she occupied. She considered that she would be unable to pass the fitness test and that dismissal from the service was virtually inevitable. Her oral evidence was that she had difficulty completing chin-ups. This would not appear to be related to her closed-head injury. There was no evidence from any other RAAF officer supporting this aspect of her case.
176 The defendant tendered a Department of Defence document entitled “Standard Application” relating to her application to resign. The document was dated 1 February 2001. The document states:
“My reasons for discharge are dissatisfaction with the service; career frustration; serious equity issues.”[52]
[52]DCB 139
177 In her oral evidence, Ms Wood stated that she had not made any reference to her fitness or her injuries at the time she applied for a discharge because she did not want to prejudice a future return to the RAAF. She maintained that, had she not resigned, she believed she would have been terminated by the RAAF on physical grounds. Her evidence was that she had “seen the writing on the wall” and did not want to be medically discharged as she hoped to re-apply and rejoin the Air Force in the future once her symptoms had settled.[53]
[53]PCB 21
178 She made no mention of this in her first affidavit sworn on 24 February 2009 in support of this application. There, she deposed:
“18 On 7 May 2001 I was discharged from the Royal Australian Air Force as I was unable to meet the physical requirements for operational duties.”[54]
[54]PCB 10
179 Ms Wood’s failure to make reference in her affidavit to her stated reasons for seeking a discharge from the RAAF reflects poorly on her credit. I note that, within a matter of weeks of her discharge, she obtained employment with the University of Technology in Sydney in a responsible administrative role.
180 I consider that her affidavit evidence relating to her discharge was an attempt by her to create an impression that the RAAF had acted to discharge her because it considered that she was unfit to continue in service. This was plainly untrue. She was discharged because she applied for a discharge.
181 Further, Ms Wood failed to include any reference in either of her affidavits to the fact that, shortly before her discharge, she had sought to transfer into the legal category and study law. I do not consider that such intention is consistent with any belief on her part that she suffered from significant difficulties with memory, concentration, or learning problems.
182 I note that between the accident and the date of her discharge from the RAAF, Ms Wood had obtained a Graduate Diploma of International Relations and a Masters qualification in International Relations in 2000. These qualifications were obtained by her whilst working in a full-time capacity for the RAAF.
183 Further, in 2011, Ms Wood commenced a degree course in Egyptology. She obtained a high distinction in Hieroglyphics, again whilst engaged in full-time employment. I consider this to be an indicator that any cognitive deficits detected are not of great consequence to her.
184 I note that she discontinued those studies after one semester. In her oral evidence, she said:
“I did find them too much and I realised that I’d taken on too much and I discontinued those studies ... I re-enrolled into a next semester, realised I wasn’t coping and ceased those studies.”[55]
[55]T141
185 That evidence is to be contrasted with the history she gave to Dr Larder in April of this year.
“I’m part way through (it’s on hold) a Master of Arts in Egyptology. I started that in 2011 and it’s on hold because it’s only available face to face at Macquarie University so when we moved up here [Queensland] I had to cease.”[56]
[56]PCB 140
186 Dr Larder had examined Ms Wood at the request of her own solicitors. I consider that the information recorded by him is likely to be accurate and that the oral evidence referred to was an attempt by Ms Wood to mislead the Court as to the reason for her not continuing the course beyond the first semester in 2011.
187 Ms Wood drives a motor vehicle on a daily basis to and from Kings Beach to Brisbane, a journey of about an hour each way. I consider that it is all but inconceivable that a person of Ms Wood’s apparent intelligence would have embarked upon such a journey some ten times a week if her history of migraines, dizziness and blackouts was anywhere near as serious as she alleges. To do so would, in my opinion, amount to the most reckless and irresponsible behaviour on her part. Further, I note the history provided to Dr Larder in April 2013 that – “I tend to avoid driving if I can, at all costs”.[57] This is inconsistent with that daily travel to and from her work by car.
[57]PCB 138
188 A summary of Ms Wood’s international travel between 2005 and 2013 was tendered.[58] I shall not, in these reasons, set those details out in full. However, it is apparent that on business, she travelled to Greece, Hong Kong, China, Saudi Arabia, Egypt, United Arab Emirates, Iran, Jordan, Bahrain, Kuwait, Oman, Korea and Vietnam, some of these on multiple occasions.
[58]DCB 172-3
189 Recreationally, she travelled to Malaysia, Hong Kong, London, Scotland, Morocco, Singapore, Malaysia, Koh Samui (Thailand), Phuket (Thailand), the USA and Vietnam.
190 I accept that, compared with most members of the community, Ms Wood has travelled extensively and regularly for work and for pleasure.
191 Travelling to and holidaying in many of these destinations would, I consider, prove difficult and stressful for most persons.
192 The defendant submitted that Ms Wood’s scuba diving activities were inconsistent with the serious symptoms alleged by her with regard to dizziness, migraines and blackouts. He pointed to her evidence that her dizziness was sometimes brought on by as a little as a movement of her head.
193 The history provided to Dr Larder in April 2013 concerning her most recent trip, scuba diving in Thailand, is indicative of intensive scuba diving on a daily basis, diving anything up to 30 metres in depth. I consider that history is likely to have been accurately recorded by him.
194 In her oral evidence, Ms Wood stated she had dived only rarely on the boat trip off Thailand in 2012. She attempted to distance herself from the description of her scuba diving activities provided by her to Dr Larder.[59] I am confident that, had she advised him of any inability to dive during that trip, he would have recorded it. I do not accept her oral evidence to that effect and consider that Ms Wood was attempting to mislead the Court on that aspect of her evidence.
[59]PCB 141-2; paragraphs 126 and 127 above
195 I accept the submissions made by the defendant that it stretches credulity to suggest that she would embark in such diving activities had her symptoms been anything like as marked as she alleged. She had scuba dived regularly from 2008.
196 Further, Ms Wood advised Dr Larder in April 2013 that:
“At the moment I’m working madly to set up a self-managed super fund so that I can prepare for our retirement so we’re doing a lot of planning around what that could look like. I’m always planning my next overseas trip. One of the things that I was involved in just over the weekend was a little while ago I nominated to do some volunteer work with the UN. An opportunity was given to me on the weekend to undertake a volunteer assignment over in Afghanistan. That’s one of the things I’ve been looking at doing; a volunteer assignment with an NGO or something so I’m making plans around that, if we could do it.”[60]
[60]PCB 142
197 The gist of her oral evidence[61] was that she was not seriously contemplating work in Afghanistan. I found her evidence on the issue unconvincing. I accept that that is what she told Dr Larder as recently as last April, and I consider it likely that those activities are what she is contemplating.
[61]T144
198 Senior Counsel for the defendant conceded that if I were to accept Ms Wood’s evidence concerning the extent of her headaches, migraines and blackouts, it would point to consequences that were at least very considerable. The thrust of his submissions was, however, that the lifestyle led by her was inconsistent with that evidence. He pointed out that there were few, if any, objective signs of injury, and a finding of consequences that were at least very considerable would have to be based largely, if not entirely, on her evidence.
199 I do not accept that the consequences alleged by Ms Wood are as considerable as she alleges.
200 I accept the neurological and neuropsychological evidence that Ms Wood has probably suffered a post concussional syndrome which may indeed be responsible for some headaches and migraines. It may be the case that she suffered some subtle cognitive deficits as a consequence of her closed-head injury. However, I take note of the neuropsychological evidence that a degree of depression can influence tests regarding such deficits. In any event, insofar as she has suffered the cognitive deficits as a consequence of the injury, I am not satisfied that those deficits have had any substantial effect on her work activities or her activities of daily living.
201 The evidence concerning her continuous employment, and her regular travel and recreational activities does not enable me to conclude that the consequences of her injury satisfy the threshold test.
202 I am not satisfied that Ms Wood has discharged the onus of establishing that the consequences of her closed-head 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 merely significant or marked.
Conclusion
203 For the reasons expressed above, I am not satisfied that it is just and reasonable to grant an extension of time in respect of the issuing of Ms Wood’s proposed claim for damages for injuries suffered by her in the accident.
204 Further, I am not satisfied that Ms Wood has suffered a “serious injury” in the accident as that term is defined in s93(17) of the TAA.
205 Accordingly, the application will be dismissed.
206 I shall hear the parties with regard to any consequential orders sought.
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