Xipolitos v Transport Accident Commission
[2014] VCC 574
•2 May 2014
| 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-11-04687
| KATERINA XIPOLITOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 March 2014 | |
DATE OF JUDGMENT: | 2 May 2014 | |
CASE MAY BE CITED AS: | Xipolitos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 574 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of cervical, thoracic and lumbar spine – psychiatric injury – whether or not consequences of physical injury are “serious” – whether the resulting psychiatric injury is “severe”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galleti [1994] 1 VR 436
Judgment: Application for serious injury in respect of the cervical, thoracic and lumbar spine is dismissed. Application for serious injury in respect of psychiatric injury is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with Ms N Wolski | Antony, Sdrinis & Co |
| For the Defendant | Mr R P Gorton QC with Ms R J Boyce | Lander & Rogers |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 29 September 2011. The plaintiff applies for leave pursuant to s93(4)D of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of the transport accident which occurred on 26 June 2009 (“the said date”).
2 Section 93(6) of the Act provides a Court must not give leave under s93(4)D unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff under s93(17) states:
“(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 In this application, the plaintiff, in effect, has two separate applications for serious injury. Under s93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:
(i)loss of body function of the cervical, thoracic and lumbar spine; and
(ii)serious long-term severe mental or behavioural disturbance or disorder.
5 The enquiry under s93(17) of the Act focuses attention first, upon whether the injury has produced an organic impairment of loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. The serious injury defined by ss(17)(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
6 In forming the judgment as to whether the consequences of the injury are “serious”, the question to be asked is: Can the injury, when judge by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and “more than significant’ or “marked”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
7 A serious injury under s93(17)(c) requires the level of impairment to be “severe”.[3]
[3]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 846
8 The plaintiff swore and relied upon three affidavits dated 19 May 2011, 29 October 2012 and 20 August 2013. The plaintiff also relied upon two affidavits sworn by her husband, Sarando Xipolitos, dated 29 October 2012 and 20 August 2013. The plaintiff gave evidence and was cross-examined. Mr Xipolitos was not cross-examined. The plaintiff’s general practitioner, Dr Diana Lo, gave evidence and was cross-examined.
9 In addition to the affirmed affidavits and evidence given by the plaintiff and her general practitioner, both parties relied upon medical reports and other material which was tendered during the course of the proceeding. I have read all of the tendered medical material.
10 The tendered evidence in this proceeding was as follows:
·Exhibit A – Plaintiff’s Court Book (“PCB”), pages 10-30, 70, 71, 85, 93-109A, 122a, 123-128, 130, 140-159, 163-299, 300, 345, 374, 380, 382, 386 and 388-392,
·Exhibit B – progress notes of the general practitioner, Dr Lo, between the dates 8 April 2002 and 6 March 2014;
·Exhibit 1 – Defendant’s Court Book (“DCB”), pages 1-52;
·Exhibit 2 – Letter dated 24 March 2010 from the Australian College of Optometry to the plaintiff;
·Exhibit 3 – Letter dated 28 May 2009 from Dr Tim Bennett to the plaintiff’s general practitioner;
·Exhibit 4 – K10 test results for the plaintiff dated 21 January 2009, 13 July 2009, 23 February 2010 and 24 March 2010;
·Exhibit 5 – Plaintiff’s Court Book, pages 119-122;
·Exhibit 6 – Referral dated 23 January 2009 for the plaintiff to attend at the Sleep and Respiratory Clinic at Austin Health;
·Exhibit 7 – Referral by Dr Lo dated 31 July 2009 to physiotherapist, Adel Chan;
·Exhibit 8 – Handwritten clinical notes of Dr Lo from 20 June 1979 to 21 November 2011.
11 Mr Gorton QC, on behalf of the defendant, identified the following matters as the issues in this application:
(a)What injuries did the plaintiff suffer to her cervical, thoracic or lumbar spine as a result of the transport accident? This issue includes whether the aggravation of any previous impairment of the plaintiff’s neck or back occurred as a result of the transport accident;
(b)Whether the injuries or consequences for the plaintiff as a result of the injury to her neck and back are properly described as in “the range of cases” considered as a whole to be a serious injury under the Act;
(c)The credit of the plaintiff;
(d)Whether the plaintiff suffered a psychiatric condition as a result of the transport accident and that that psychiatric condition continues to the date of the application; and
(e)Whether the plaintiff’s psychiatric condition meets the “severe” test as required under the Act. A corollary to this issue is whether or not the psychiatric condition is permanent, in the sense that it is for the foreseeable future.
The Plaintiff’s background
12 The plaintiff was born in February 1979. She is now thirty-five years old.[4]
[4]PCB 11
13 The plaintiff grew up in the northern suburbs of Melbourne and completed her education at Year 12 level at the Keilor Downs Secondary College. Subsequent to her formal school education, she completed a four-year hairdressing apprenticeship. She worked for a further three years in that occupation. The plaintiff then changed her employment to working for the Westpac Banking Corporation. She worked in that employment for five years. The plaintiff resigned from this employment because she was not being promoted to an appropriate level as she saw fit.[5]
[5]PCB 11
14 On 15 July 2008, the plaintiff commenced employment with the Australian College of Optometry. She worked there in the capacity as a receptionist. The plaintiff was on her way to work on 26 June 2009 when she was involved in a transport accident, the subject of this application. As a result of her injuries and the effect upon her ability to work, the plaintiff’s employment at the Australian College of Optometry was terminated on 31 March 2010.[6]
[6]PCB 11 and Exhibit 2
15 The plaintiff is a married woman who lives with her husband and her parents.[7] She has a twenty-month-old child. The plaintiff has not returned to work since the date of the accident and is currently in receipt of Disability Pension benefits from Centrelink.
[7]Transcript (“T”) 10
The transport accident involving the Plaintiff
16 The plaintiff described the transport accident which occurred on 26 June 2009 in her affidavit dated 19 May 2011. She stated:
“The subject transport accident occurred on 26 June, 2009 when I was approaching the Calder Freeway near the interchange with the Tullamarine Freeway in Essendon North and my came into collision with a vehicle being driven by another driver which was reversing on the freeway. I was travelling at approximately 100 kph and because of the unexpected appearance of a car reversing on the freeway I had no time to brake or swerve to miss the vehicle and the force of the collision was such that my car spun around 180o facing in the opposite direction in which I had come although the bonnet was completely pushed up. I was fearful that another vehicle would drive into my own car and I quickly got out of the car.
I found the Firstnamed Defendant’s vehicle was located about five metres away from my own and that she was slumped across the front passenger’s seat and did not appear to be moving and my immediate thought was that she was in a bad way and I rang 000 and requested immediate ambulance attendance. A witness who identified himself as Marco stopped and stayed to reassure me and comfort me until the ambulance arrived. Unfortunately, the driver of the other vehicle had been killed in the collision.”[8]
[8]PCB 11 and 12
17 The plaintiff was taken by ambulance from the scene of the collision to The Royal Melbourne Hospital. The plaintiff was x‑rayed for neck and right shoulder injuries. She was also x‑rayed in respect of a fracture to her small finger on her right hand. The injury to her right hand was subject to surgery on 2 July 2009. The injury to her right hand is not part of this serious injury application.[9] The plaintiff also had further rectifying surgery on her right hand in May of 2010.[10]
[9]PCB 12
[10]PCB 13
18 The plaintiff has received treatment for her spinal complaints and psychiatric condition since the time of the accident.
The Plaintiff’s impairment or loss of body function – the physical injury
19 The plaintiff had suffered chronic plaque psoriasis since 1999. The plaintiff’s condition deteriorated and she was referred to The Royal Melbourne Hospital for management by the Dermatology Clinic in September 2005. In 2005, the plaintiff was assessed as having mild psoriatic arthritis.
20 In January 2008, the plaintiff commenced treatment at the Rheumatology Clinic at The Royal Melbourne Hospital. This treatment was in combination with the Dermatology Clinic at The Royal Melbourne Hospital. In June 2008, the plaintiff’s psoriatic arthritis was described as “active”. She was being treated with Cyclosporin and Prednisolone.[11]
[11]PCB 119 and 120
21 The plaintiff attended her general practitioner on 20 May 2008 complaining of pain and swelling, stiffness in the hands, back, knees and ankles.[12]
[12]Exhibit B
22 In February of 2009, the plaintiff’s treatment at The Royal Melbourne Hospital for her psoriatic plaque and arthritic condition was decreased as she was hoping to become pregnant in the near future. Unfortunately the transport accident intervened in this timeline in June of 2009. It was clear on the medical evidence that the plaintiff’s psoriatic arthritis condition was deteriorating from 2007 onwards. The symptoms the plaintiff was suffering included pain and stiffness in the back. Her general practitioner, in her evidence, stated that in her opinion, the pre-injury condition was mainly of a skeletal nature rather than the chronic pain and soft-tissue injury complained of by the plaintiff subsequent to the transport accident.[13]
[13]T93
23 The plaintiff, when she first attended The Royal Melbourne Hospital after the transport accident, complained of neck and right chest wall pain. On 30 June 2009, when she attended her general practitioner, Dr Lo, the plaintiff’s complaint was of pain in the small finger on the right hand, together with bruising to the right shoulder, pain in the right side of her neck and her anterior upper chest, lower abdomen pain and bruising.[14] That was the extent of the physical complaints made by the plaintiff at that time. There was no mention of low-back pain or injury immediately following the accident, to her general practitioner. The plaintiff’s first complaint of low-back pain to her general practitioner was made on 19 August 2009.[15] This complaint is some eight weeks after the accident. It was a complaint made to the general practitioner after she had received treatment from the physiotherapist, Adel Chan. The plaintiff has complained of pain in her lower back and spine, including the neck, since that time.
[14]Exhibit B
[15]Exhibit B
Medical opinions in respect of the Plaintiff’s spine injury
Dr Lo
24 In her most recent report dated 23 July 2013, Dr Lo described the physical injuries of the plaintiff as follows:
“Residual, stabilized soft tissue injury to her finger, shoulders, cervical thoracic and lumbar spine.”[16]
[16]PCB 109
25 In her evidence, Dr Lo confirmed her opinion that the plaintiff was suffering from soft-tissue injury to her muscles and nerve endings in the spinal region.[17] Dr Lo has not referred the plaintiff to any orthopaedic surgeon for treatment or advice in respect of her spinal injuries.
[17]T93-94
Mr Kenneth Brearley
26 Mr Kenneth Brearley prepared three reports dated 9 February 2011, 7 September 2012 and 14 June 2013 for the purposes of this application. In his latest report dated 14 June 2013, Mr Brearley noted:
“She has discomfort or pain in the neck and lower back most days and this lasts all day. Her discomfort is worsened by any significant physical activity.”[18]
[18]PCB 224
27 Mr Brearley noted that the plaintiff was taking Panadol and, on occasion, Panadeine Forte as required. The only other treatment in respect of this injury to her neck and lower back is physiotherapy sessions on a number of occasions.
28 Mr Brearley, on examination, found that the plaintiff had a full range of movement in respect of her neck. The plaintiff had a normal range of movement in her back except for flexion, which was restricted to 70 degrees. He noted that there was no clinical evidence of radiculopathy.[19] Mr Brearley was of the opinion that the plaintiff should continue with psychological counselling which the plaintiff had reported to him was of some benefit to her. He then went on to state that the plaintiff had a capacity to work three hours per day, five days per week, with a gradual increase in her hours if she was coping well with that employment.[20]
[19]PCB 225-226
[20]PCB 226
29 This assessment and opinion given by Mr Brearley does not indicate a very significant impairment or loss of body function for the plaintiff as a result of soft tissue injuries to her neck and lower back.
Mr Kevin King, surgeon
30 Mr King prepared three reports in respect of this application dated 18 May 2011, 26 September 2012 and 9 July 2013. In his final report, Mr King notes that depression and anxiety persist as a significant problem to the plaintiff, particularly in view of the unfortunate circumstances of the accident.[21] In his opinion, Mr King states:
“… Her condition has stabilised, it must be assumed in view of the nature of the original accident that the whole of her cervical, thoracic and lumbar spine and shouldergirdle region were exposed to a severe degree of generalised trauma at the time of the two car collision on the Tullamarine Freeway on 26.06.09 and it is more probable than not that she has stabilised at her present level. She will be left with permanent chronic neck pain and stiffness and lumbosacral back pain and stiffness of moderate severity which, taken together, will represent permanently a significant overall impairment of function in a previously fit and active young woman with the responsibility of looking after a small child. … .”[22]
[21]PCB 246
[22]PCB 244
31 Mr King stated there was no psychological overlay, but noted that her mild depression is an understandable side effect of the distressing nature of the accident.[23] Mr King’s opinion in relation to the physical injuries needs to be treated with some degree of caution, given the history he took from the plaintiff in his first report. He noted:
“She tells me that over the years her health was excellent apart from psoriasis and a very minor degree of psoriatic arthritis which affected various minor joints which seemed to cause her no disability.[24]
[23]PCB 244
[24]PCB 230
32 This history is at odds with the other clinical notes taken by her general practitioner and her treatment at The Royal Melbourne Hospital for psoriasis prior to the accident.
Professor Kenneth Myers
33 Professor Myers prepared two reports dated 13 September 2012 and 17 June 2013. I noted that neither of the parties refer to these reports in their submissions in this application.
34 In his later report, Professor Myers noted that the plaintiff suffered from a 25 per cent restriction in the range of movement of her low back and 50 per cent restriction the range of movement of her neck.[25] This examination result is completely at odds with the findings of Mr Brearley, who made his observations referred to above on approximately the same day. I note in the reports of Professor Myers, that at no stage does he refer to the ongoing condition the plaintiff suffers from with psoriatic arthritis. As Professor Myers does not appear to have a full and total history from the plaintiff about her pre transport accident condition and her ongoing psoriasis condition, I do not accept his findings about the plaintiff’s physical injuries.
[25]PCB 257
Dr Peter Blombery
35 Dr Peter Blombery prepared two reports dated 17 October 2012 and 8 August 2013. Dr Blombery diagnosed the plaintiff having suffered a whiplash injury. He described the whiplash injury as an organic disorder of pain nerve pathways.[26] In the examination section of Dr Blombery’s report, he does not record any examination of the range of movement in respect to the low back. He notes there is a restriction to the range of movement in the plaintiff’s neck. The description of the injuries and his opinion do not support the proposition that the plaintiff has suffered a very considerable impairment of body function of her neck and/or low back.
[26]PCB 265
Professor Stephen Davis, neurologist
36 Professor Davis prepared a report dated 14 September 2012 in respect of this application. In the examination section of Professor Davis’s report, he notes that the plaintiff was somewhat depressed and a rather slow historian.[27]
[27]PCB 271
37 Professor Davis’s opinion was as follows:
“She had developed chronic pain problems shortly after the accident in the cervical and lumbosacral regions. She also has pain in the right shoulder and scapular region. One would assume soft tissue injuries to these areas as the initial plain x‑rays excluded fractures and subsequent CT scan showed only fairly minor changes. There are no features to suggest spinal cord or nerve root impingement or compression.”[28]
[28]PCB 272
38 Professor Davis went on to state that the plaintiff was suffering from major psychiatric aspects and consequences of the accident.[29]
[29]PCB 272
Dr Kevin Fraser, rheumatologist
39 The plaintiff was examined by Dr Kevin Fraser on behalf of the defendant’s solicitors. In his report dated 17 December 2013, Dr Fraser set his opinion out as follows:
“I do not consider that there are any ongoing transport accident related injuries in this case.
…
Given the nature of what was a high-speed accident it is likely that she sustained soft tissue injuries of the nature of musculoligamentous strain affecting her spine, resulting in neck and low back pain and stiffness.
In my view, any such injury shoulder have long since resolved and I suspect that her ongoing symptoms are due to non-organic factors. It is relevant to note that she continues to have psychological counselling related to issues following the motor vehicle accident.
I don’t consider that there is any ongoing transport accident related functional incapacity of a physical nature in respect of her neck or low back.[30]
[30]DCB 46
40 It is clear from this opinion that Dr Fraser was of the opinion that the plaintiff only suffered from soft tissue injury at the time, which has resolved completely.
Mr Michael Dooley, orthopaedic surgeon
41 The plaintiff was examined by Mr Michael Dooley on behalf of the solicitor’s for the defendant. He prepared a report dated 3 March 2014. Mr Dooley gave his opinion as follows:
“In relation to the cervical and lumbar spine regions, I believe that Mrs Xipolitos sustained a soft tissue injury that involved musculoligamentous damage. … It would be my view that the constancy and intensity of her ongoing pain and her described disability are greater than one would expect to see for [a] condition in this regard. Clinically Mrs Xipolitos is depressed. … From an orthopaedic point of view, I would expect her to have a physical capacity to carry out a wide range of domestic and leisure activities. I cannot explain why walking would aggravate her neck and back pain. …
…
… I would have expected her to note some intermittent pain. I would have expected Mrs Xipolitos to have been able to engage in a wide range of employment, domestic and leisure pursuits.”[31]
[31]DCB 51
42 Mr Dooley went on to state that he believed that the extent of the plaintiff’s psychological reaction was significant. He went on to express the view that the symptoms and intensity of those symptoms described by the plaintiff are more likely to be as a result of a psychological reaction rather than a result of the organic injury sustained in the transport accident.[32]
[32]DCB 52
Conclusion
43 I find that the plaintiff has failed to satisfy the statutory test for serious injury in respect of the impairment or loss of body function to her neck and lower back. The medical opinions in relation to her physical injuries do not substantiate a finding that the consequences of the physical injury to the plaintiff as a result of the transport accident are very considerable. I note nearly all of the medical examiners refer to the plaintiff as being depressed and that rather than being a physical injury, the medical opinions are that her symptoms are more related to her psychological state.
44 I dismiss the application for serious injury certification in respect of the physical injury to her neck and lower back.
Psychological and psychiatric injury to the Plaintiff
45 The plaintiff had attended upon her general practitioner on four separate occasions for treatment of anxiety and/or depression prior to the transport accident the subject of this application.
46 The first attendance on Dr Lo was on 9 January 2008. The plaintiff presented as being very stressed and teary, anxious and “needs a career break”.[33] The plaintiff’s evidence in relation to this was that she was having difficulty with her work at the Westpac Bank.
[33]Exhibit B
47 The second attendance by the plaintiff on Dr Lo in respect of psychological problems was on 20 May 2008. On that occasion, the plaintiff reported as feeling better after having resigned from her work.[34] The evidence is that it was around this time that the plaintiff had in fact resigned from Westpac Bank as a bank teller.
[34]Exhibit B
48 The plaintiff returned to her general practitioner on 25 August 2008 complaining about depressed mood and low self-esteem. Dr Lo recorded the reason for contact was panic attacks.
49 The plaintiff’s next visit to the general practitioner was on 21 January 2009 when she was complaining of anxiety and depression. It was on this occasion that the general practitioner prescribed Aropax tablets for the plaintiff. It was also at this visit that the plaintiff was referred to the Sleep and Respiratory Centre at Austin Health.[35] This was the last visit the plaintiff had with her general practitioner prior to the transport accident.
[35]Exhibit 6
50 It is clear from the history and the evidence in this case, that the first two visits to the doctor in relation to stress-related matters prior to the transport accident were directly related to her place of work. The plaintiff resolved that situation by resigning from employment and taking up new employment with the Australian College of Optometry.
51 The panic attacks and depression and lowered mood referred to in the other two attendances on the general practitioner prior to the transport accident are not fully explained by the plaintiff. It is to be noted that the general practitioner did not, at that stage, see fit to refer to the plaintiff to a psychologist or any other treatment in relation to her psychiatric or psychological condition at that time.
52 The plaintiff attended on her general practitioner on 30 June 2009. This was four days after the transport accident. She was immediately referred off to Ms Sara Murphy, psychologist. The doctor noted that the diagnosis at that stage was post-traumatic stress.[36] The plaintiff was also prescribed Lexapro tablets at that time.
[36]Exhibit B
53 The plaintiff’s treatment since the transport accident has been supervised by her general practitioner, Dr Lo. Dr Lo has prescribed her medication and referred her to two psychologists for therapy.
Medical opinions
Dr Diana Lo
54 In her report dated 23 July 2013, Dr Lo described the plaintiff’s condition as: persistent low mood; irritability; loss of motivation; fatigue; sleep disorder with nightmares; feelings of anger; flashbacks of accident. Dr Lo noted that the plaintiff had declined antidepressants. In Dr Lo’s opinion, the plaintiff was suffering ongoing Post-Traumatic Stress Disorder.[37]
[37]PCB 109
55 Dr Lo gave evidence in this application and was cross-examined. Dr Lo has been in control of the treatment of the plaintiff for her psychological condition. Dr Lo has prescribed the plaintiff with Lexapro, Cipramil, Zoloft and Cymbalta over the period of 2009 to the end of 2010. The plaintiff has declined to continue with complying with the medications for the stated reasons of “drowsiness”, “sedated”, “feeling heavy headed”, “tired”, “very tired” and “groggy”.[38] I have noted the dates of prescription of the respective anti-depressant medication listed in exhibit B. The general practitioner gave evidence that the plaintiff was allergic to Cipramil, Lexapro and Zoloft. I understood the evidence of Dr Lo to mean that the side-effects of the anti-depressant and psychiatric medications were too severe for the plaintiff to tolerate. It was for the reasons of the side effects that the plaintiff ceased taking each of the prescribed medications.
[38]T 83 – 85
56 In July of 2012, the plaintiff was prescribed Endep. She has returned to her general practitioner and is continuing to take Endep from March of 2013.
57 Dr Lo’s evidence in respect of the antidepressant medication is as follows:
Q:“What antidepressant is she on now?---
A:She’s not on any at the moment.
Q:How long is it since she’s been on an antidepressant? Sometime back there in 2010, isn’t it?---
A:March. In March 2013 we have a prescription for Endep. Due to her intolerance to the normal SRRI, I have – and due to her chronic pain, I decided that amitriptyline, Endep, which might be suitable for her. That would help with her – it’s often used in the management of pain and as well as a muscle relaxant and as an antidepressant as well. So since March 2013, I believe I’ve been pursuing that line of encouraging her to take Endep.”[39]
[39]T77, L18-L29
58 Dr Lo stated that the reason for the plaintiff’s non compliance with medication as follows:
Q:“Really, is it a matter of judgment whether that’s because the mental and emotional state wasn’t so bad or just an unwillingness to follow treatment whatever advice was given?---
A:I would say that she’s unwilling to try due to two reasons – her non-compliance and her unwilling to try due to two reasons. One is the side effects that she had got and the other is her depression is affecting her ability to self-manage or self-care for her condition which includes being compliant with medication.”[40]
[40]T78, L22-L30
59 In the course of her evidence, Dr Lo was challenged about not referring the plaintiff to a psychiatrist on the basis that the plaintiff’s symptoms were not severe enough. The following evidence was given:
Q:“Did it occur to you at that time that if medication was required, or you thought it was required, that it would have been wise to refer her to a psychiatrist?---
A:I did – I felt at that point that that was probably unnecessary because I did not see what a psychiatrist can offer that we’re not already doing, or already in the process of doing. So I had – I did not refer her to a psychiatrist at that point and I was just planning on working with the psychologist and seeing how that goes before I might initiate or try another antidepressant.
Q:So her condition wasn’t so severe at that stage that she needed immediate medication for her mental state?---
A:Not necessarily. She – I did encourage her to resume it but she did not take it and that doesn’t always mean that her condition is not severe. Sometimes patients do persist and put up with their symptoms while they pursue other avenues of treatment.”[41]
[41]T70, L7-L23
60 The plaintiff has received treatment from Sara Murphy and Dean Smith, both psychologists.
61 In the course of the evidence of Dr Lo, it became apparent that the plaintiff’s general practitioner did not think that a psychiatrist could do any more than she was doing for the plaintiff. The following evidence was given:
Q:“If you are now onto the third antidepressant medication and she is not taking it, not taking it as advised, wouldn’t it have been – if she was in a serious position, something that you would do, to send her to a psychiatrist who is expert in psychiatric medication and its use?---
A:Not necessarily. I didn’t feel that there was anything a psychiatrist can offer her that will make any significant change or difference to he outcome of her condition and I felt that we are – we were already doing what is most appropriate or most suitable for Kathy and – or what she’s willing to undertake. I - - -
Q:So then at that time you thought there was no value in getting psychiatric treatment for her?---
A:That’s right. I cannot see them making a significant difference to the clinical outcome of her mental state and I would have discussed this with her as I negotiate with her about treatment, seeing psychologists, taking medications. We would have come to the decision that we will just persevere and keep going and at that – I’ve got another entry on March the 3rd that she’s still seeing the psychologist. So we were persevering along those lines.”[42]
[42]T76, L12 – T77, L1
62 Dr Lo stated that the K10 tests reveal that the level of severity of the plaintiff’s psychological symptoms has basically remained the same pre-accident until the current time. Dr Lo stated that the severity of the symptoms is the same but the type of symptoms are different.[43] Dr Lo went on to explain what she meant by that, later in her evidence.
Q:“So now I would like if possible for you to contrast in what way, if any, her current psychological condition differs from her pre-accident psychological condition, if in any way at all?---
A:Yeah. It’s, it’s different in the sense that she has a background symptom of low mood, intermittent low mood and stress, anxiety, panic. That’s in the past. But following the accident it became – she became very acutely unwell in that the first few days she was unable to stop crying and following that she reported, you know, nightmares, flashbacks, sleep disturbance and – yeah, that’s the main difference.” [44]
[43]T82
[44]T90, L26 – T91, L7
63 In Dr Lo’s opinion, the plaintiff’s prognosis is not good. The main difficulty the plaintiff suffers is sleep disturbance as a result of nightmares and flashbacks. The plaintiff can now drive but has trouble, in the sense that she is still anxious about driving. The plaintiff has resentment and anger towards the person who was killed in the accident as the accident was her fault.[45]
[45]T91
64 The most significant finding that the general practitioner has is that the plaintiff has lost her ability to work. Dr Lo says the plaintiff cannot work due to her ongoing depression, which impedes her recovery, as well as the continuing symptoms of Post-Traumatic Stress Disorder.[46]
[46]T93
65 In conclusion, Dr Lo was of the opinion that the severity and symptoms of Post-Traumatic Stress Disorder and Depression with Anxiety have persisted from the time of the accident until now and that the plaintiff’s prognosis is poor.
Dr Sara Murphy
66 The plaintiff was referred to Dr Sara Murphy, clinical psychologist, on 30 June 2009. The plaintiff attended upon Dr Murphy on a total of six sessions. Dr Murphy’s opinion was that the sessions were constructive and that the plaintiff was able to get back to driving a vehicle after the transport accident. The plaintiff last saw the psychologist, Dr Murphy, some time prior to 4 November 2009. At that time, Dr Murphy’s opinion was that there was a considerable improvement in the condition of the plaintiff from when she first treated her.[47] The opinion of Dr Murphy is now out of date, as she has not had the advantage of interviewing or treating the plaintiff since 2009.
[47]PCB 130
Mr Dean Smith, psychologist
67 Mr Smith prepared reports dated 4 May 2010, 8 February 2011, 4 March 2011, 8 June 2011, 15 February 2012 and 26 July 2013. The plaintiff last saw Mr Smith in the latter part of 2013. She has had a total of 59 sessions with Mr Smith. The plaintiff commenced treatment with Mr Smith in April 2010 after she requested a change from Ms Murphy.
68 In his final report dated 27 July 2013, Mr Smith outlined that the plaintiff lacked motivation, energy and drive. He also stated that she was quite emotional and becoming angry at times and crying for no apparent reason. He noted that the plaintiff had flashbacks of the woman sitting in the car after the accident.
69 Mr Smith’s diagnosis is that the plaintiff suffers Chronic Post-Traumatic Stress Disorder, Depressive Disorder and chronic pain.[48] At the time of writing the report in July 2013, Mr Smith described the plaintiff’s current functioning as:
“… improved since treatment started in April 2010. However is still below her pre-morbid functioning. She still struggles with some of the emotional difficulties that began after the accident and is currently actively looking for work, which is a significant improvement. She has not been able to find appropriate part time work that would be suitable for her current level of functioning and is finding this frustrating.”[49]
[48]PCB 158
[49]PCB 158
70 Mr Smith is positive in his prognosis for the plaintiff. He stated as follows:
“The client’s psychological prognosis is good and the writer believes that even though this incident will stay with her in some way for the rest of her life she has the potential to return to most of her per-morbid life.”[50]
[50]PCB 159
71 The treating psychologist, Mr Smith, is of the view that the plaintiff has improved since the time of the accident and his treatment commencing in April of 2010. His opinion is more optimistic than that of Dr Lo, the general practitioner.
Dr Albert Kaplan, psychiatrist
72 Dr Kaplan prepared reports dated 15 November 2010, 29 August 2012 and 4 June 2013 in respect to this application.
73 In his final report dated 4 June 2013, Dr Kaplan noted that the plaintiff, at that time, was prescribed Endep and Panadol. The plaintiff was receiving Humira injections as treatment for her psoriasis. Dr Kaplan noted that the plaintiff complained that on occasions, her daughter wakes her at night. He also took a history that the plaintiff’s sleep was disturbed due to pain. The plaintiff also complained of flashbacks and visions of the accident still.[51]
[51]PCB 182
74 Dr Kaplan described the plaintiff as appearing to be despondent, subdued and somewhat withdrawn.[52] I note that this observation by Dr Kaplan is similar to observations of most of the medical practitioners who have examined the plaintiff.
[52]PCB 184
75 Dr Kaplan’s opinion was:
“Mrs Xipolitos continues to suffer from a Post-Traumatic Stress Disorder related to her traffic accident and there does not appear to have been any significant improvement in her condition over the past nine months. Although there has been a reduction in frequency of her nightmares, she continues to experience intrusive thoughts and flashbacks of her accident, and she describes avoidance symptoms and a heightened arousal. She describes anxiety with regard to driving, travelling as a car passenger, and her general anxiety is probably also partly related to this condition.”[53]
[53]PCB 184
76 Dr Kaplan confirmed his previous prognosis in respect of this condition as being unfavourable, having regard to the duration of her condition and that it had stabilised.[54] Dr Kaplan also has diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He noted in his last report that this condition had improved slightly, and related it to the birth of the plaintiff’s child. In Dr Kaplan’s view, the Adjustment Disorder with Mixed Anxiety and Depressed Mood was related to the level of pain the plaintiff was suffering as a result of her physical injuries.[55]
[54]PCB 171
[55]PCB 184-185
77 In Dr Kaplan’s opinion, the plaintiff’s capacity for employment was mainly governed by her physical condition.
Dr Michael Epstein, psychiatrist
78 Dr Michael Epstein prepared three reports dated 23 December 2010, 5 October 2012 and 5 July 2013 for the purposes of this application. In his latest report dated 5 July 2013, Dr Epstein noted that the plaintiff continued to suffer nightmares about the accident approximately fortnightly. Twice a week, she had flashbacks to the accident, and thought about it daily. He noted that the reminders of the accident upset her and that she was an anxious passenger and preferred to be a driver.[56]
[56]PCB 266
79 In Dr Epstein’s opinion, the ongoing pain is a major factor now affecting the plaintiff from the transport accident.[57] Dr Epstein noted that the plaintiff appeared depressed and anxious during the course of the interview. In Dr Epstein’s opinion, the plaintiff continues to suffer from symptoms of Post-Traumatic Stress Disorder which have improved to a limited extent. He noted that her ongoing pain is the major factor for restricting her capacity. In his opinion, her mental state did not prevent her from returning to work.[58]
[57]PCB 268
[58]PCB 210
Dr Lester Walton, psychiatrist
80 Dr Lester Walton examined the plaintiff on behalf of the defendant in this application. He prepared two reports dated 19 July 2010 and 27 January 2011. Dr Walton diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder, Depressive Disorder and probable Pain Disorder.[59]
[59]DCB 18
81 In July 2010, Dr Walton was of the opinion that the plaintiff’s prognosis was favourable and that her psychiatric symptoms were not very severe in and of themselves. At that time, he was of the opinion that psychotropic medication was not indicated at that point.[60]
[60]DCB 19
82 Dr Walton’s reports are now quite dated and are not of great assistance to the Court in determining the plaintiff’s current psychiatric condition.
Dr Timothy Entwisle, psychiatrist
83 Dr Entwisle examined the plaintiff on behalf of the defendant and prepared two reports dated 2 December 2013 and 7 March 2014. Dr Entwisle noted that the plaintiff had signs of a depressed and anxious symptomology prior to the transport accident. He stated:
“She was diagnosed with panic attacks in August 2008 and as tearful and depressed. Following the accident he pre-existing anxiety, panic attacks and depressed mood have been aggravated by the traumatic experiences of the accident itself and witnessing the death of the other driver together with pain involving her low back, neck and shoulder.”[61]
[61]DCB 39
84 Dr Entwisle’s opinion was that the plaintiff’s prior condition was that of depression and panic attacks. He then states:
“The nature of the psychiatric condition subsequent to the accident is that of PTSD. Elements of her PTSD symptomatology represent an aggravation of pre-existing panic attacks together with depression related to ongoing chronic pain which pre-exist the accident.”[62]
[62]DCB 40
85 Dr Entwisle is of the opinion that the prognosis for the plaintiff is unclear at this time. He went on to say:
“… Ms Xipolitos is not being treated appropriately for her depressive condition. She requires much more vigorous and active management of that via a regime of psychotropic medication preferably involving an assessment and treatment with a Consultant Psychiatrist.”[63]
[63]DCB 40
86 This last comment by Dr Entwisle raises the issue of whether or not the plaintiff’s condition is permanent, in the sense that it is for the foreseeable future. It also raises the level of seriousness of the symptoms that the plaintiff is currently suffering from. As a qualified psychiatrist, Dr Entwisle clearly thinks that the treatment regime for the plaintiff should be increased.
Conclusion
87 I accept that the psychiatric medical evidence is consistent in the diagnosis of the plaintiff’s psychiatric condition as Post-Traumatic Stress Disorder, together with Depression and Anxiety. The only difference in the medical opinions is the level of severity of these symptoms for the plaintiff. It is clear that Dr Entwisle, who is the psychiatrist who has seen the plaintiff most recently, sees her level of severity as being very significant to the extent of requiring intervention by a psychiatrist.
88 I accept that the plaintiff continues to experience and suffer from intrusive thoughts, flashbacks and memories of this tragic transport accident. The two factors that she particularly identified in the course of her evidence was the fear of being run into by oncoming traffic after the initial impact of her transport accident. The second issue that creates most difficulty for her is her observation of the other driver, who was killed in the accident. The consequences for the plaintiff also include nightmares, which interrupt her sleep. It is to be noted that the plaintiff’s sleep is interrupted for other reasons, including the pain from her physical injuries and the interruption of her sleep by her young daughter. I note that the interruption from the nightmares and flashbacks are a very serious consequence for the plaintiff in respect of her sleep and ability to get rest.
89 The plaintiff also has not been able to return to gainful employment. The medical opinions vary as to the reason why the plaintiff cannot return to employment. I accept the evidence of Dr Lo, the general practitioner, that for the reasons of the plaintiff’s psychiatric state and condition, that she would not be able to re-enter the workforce. Either as a result of the Post-Traumatic Stress Disorder or the aggravation to her pre-existing Depression and Anxiety condition, the plaintiff now is unable to re-enter the workforce in any meaningful way.
90 The plaintiff’s history prior to the transport accident was that she had been in employment almost continually up to the date of the accident. On the date of accident, she was in fact travelling to work. The other imperative for the plaintiff has been that due to her family’s financial state, she has every incentive to go back to work. In the past she has done so. Since the transport accident, she has been unable to do so, and I accept that it is due to her psychiatric state.
91 The plaintiff’s general practitioner, Dr Lo, has prescribed Endep for the purposes of reducing her pain symptoms and also for assisting with her psychiatric condition. Dr Lo’s opinion is that the plaintiff will need to continue to take Endep into the foreseeable future. I find that the fact that the plaintiff has been prescribed many anti-psychotic drugs and has ceased taking them due to side effects which is a reasonable course for her to take. She is currently taking the Endep to assist in her psychiatric state. I find that the need for the plaintiff to take medication into the foreseeable future as being a very significant consequence for her.
92 The plaintiff has also given evidence that she is unable to leave the house due to her psychiatric condition. She lives a very limited and restricted lifestyle, not leaving the home.
93 In the course of submissions, it was put before the Court that the plaintiff had been under surveillance by the defendant. The total of 20 hours’ surveillance over a period of three days only “produced” a couple of very short periods of observation of the plaintiff. This surveillance, in effect, confirms what the plaintiff was saying in that she hardly ever left the house.
94 I conclude, based on the reasons set out above, that the level of psychiatric or psychological disorder suffered by the plaintiff is severe, as required under the Act. The treatment regime of medication and the need for ongoing psychological support, combined with the opinion of Dr Entwisle that the plaintiff actually requires assistance from a psychiatrist, all support a finding for serious injury certification in this case.
Credit of the Plaintiff
95 Mr Gorton QC, on behalf of the defendant, submitted that the plaintiff was not a reliable witness. He submitted that during the course of her evidence and her histories to medical practitioners, that the plaintiff had attempted to exaggerate her symptoms and difficulties she suffered as a result of the transport accident. In particular, he stated that the plaintiff had failed to give any proper history of her previous condition of psoriasis to many of the doctors. In particular, he submitted that the plaintiff was exaggerating her back pain.
96 An example relied upon by Mr Gorton QC was that the plaintiff, right near the end of her evidence, stood up from a seated position after giving her evidence for some two hours. It was submitted that this action was plainly an attempt to display the effect of the back pain injury. Mr Gorton referred to the transcript at page 10, where the plaintiff acknowledged that she could rotate either sitting or standing during the course of giving her evidence.
97 During the course of hearing, the plaintiff, after completing her evidence, would stand or sit intermittently within in the courtroom. I made my observation of this change of position in the courtroom known to both members of Counsel. Mr Gorton relied upon this later change in the plaintiff’s presentation within the Court as an example of the exaggeration the plaintiff was prepared to go to to advance her claim, in particular in relation to her back injury. He referred to Exhibit 7 and noted that the plaintiff had not made any complaint about her back in the initial stages of her treatment. It was submitted that the plaintiff had been treated by the general practitioner, Dr Lo, on three occasions prior to her mentioning any difficulty with her low back.
98 I have previously noted the impact of the physical injuries upon the plaintiff and have dismissed her application for serious injury in respect of them.
99 Whilst a witness’s credibility cannot be split between an application for serious injury in respect of physical injuries and an application in respect of psychological injury, there is a difference between an exaggeration of physical symptoms and a reporting of psychological or psychiatric symptoms.
100 The main attack on the plaintiff’s credit of her psychological treatment and the reporting made by the plaintiff revolved around the gaps in treatment received by the plaintiff from either Ms Murphy or Mr Smith, the psychologists.
101 In particular, I accept that the plaintiff’s complaints relating to her psychiatric condition did not suffer from the allegation of exaggeration and overstatement. I think that the manner in which the plaintiff has been treated under the control of Dr Lo has tended to downplay the symptoms and seriousness of the plaintiff’s condition. I rely on Dr Entwisle’s opinion that the plaintiff requires the assistance and treatment from a psychiatrist.
102 I note that the medical practitioners almost in unison make comment or note that the plaintiff’s presentation is that of a depressed person.
103 I accept that the transport accident in this case was a very terrifying experience for the plaintiff. There is no doubt that the impact in the collision was a very severe impact. Her car was very seriously damaged and rotated around to face oncoming traffic. I accept the plaintiff has ongoing memories, nightmares and flashbacks in relation to oncoming traffic appearing to run into her own vehicle. I accept that she exited her vehicle as quickly as she could and attended at the site of the other car involved in the accident with her. I accept that she then had the shock of seeing that the other driver was deceased. The plaintiff had her conclusion that the other driver was killed in the accident confirmed by an ambulance person at the scene of the accident.
104 It is the factual basis of the shock and observations made by the plaintiff at the scene of the accident that form the basis of a diagnosis of Post-Traumatic Stress Disorder and Depression with ongoing Anxiety.
105 In relation to her reporting and evidence in respect of the psychological and psychiatric aspects of her condition, I accept the plaintiff as a witness of truth. It is confirmed by her husband’s evidence, which was unchallenged. It is also confirmed by numerous medical practitioners, most of whom were seeing the plaintiff for physical injuries, rather than psychiatric injuries.
106 Whilst I accept the plaintiff probably exaggerated the symptoms in respect of her physical injuries and the consequences of them for her, I do not accept that she was exaggerating or making up her symptoms in respect of her psychological and psychiatric condition.
107 The plaintiff stated in her evidence that she rarely goes out and pretty much stays at home with her twenty-month-old daughter. It was conceded by the defendant that on three separate days over 20 hours of surveillance of the plaintiff’s home, that she was only observed on two occasions for a very short period. This surveillance confirms, for the short period that the plaintiff was under surveillance, exactly what she was saying about being restricted at home.
108 In summary, I accept the plaintiff as a witness of truth and that her description of her difficulties in respect of her psychiatric and psychological condition are not exaggerated and are accurate. Each of the medical practitioners who have examined or seen the plaintiff in the course of this application and the lead up to it, have noted her psychiatric presentation.
Conclusion
109 The application for serious injury certification for psychiatric and psychological disorder is granted. I grant the application on the basis of the reasons announced earlier in this judgment. The plaintiff has satisfied the criteria that her condition is severe and will remain for the foreseeable future.
110 The application in respect to the physical injuries is dismissed.
111 I will hear the parties on costs.
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