Yargi v Transport Accident Commission
[2019] VCC 1402
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05441
| BIRGUL YARGI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 August 2019 | |
DATE OF JUDGMENT: | 20 September 2019 | |
CASE MAY BE CITED AS: | Yargi v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1402 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the lumbar spine – psychological injury – whether consequences “very considerable” – causation
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Transport Accident Commission v Kamel [2011] VSCA 110; Meadows v Lichmore [2013] VCSA 201; Grace v Elmasri & Anor [2009] VSCA 111
Judgment: Application granted pursuant to s93(17)(c) definition of “serious injury”. Application pursuant to subparagraph (a) dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley QC with Ms A Ryan | Shine Lawyers |
| For the Defendant | Mr P B Jens QC with Ms J Clark | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff, Ms Yargi, brings this application pursuant to s93(17) of the Transport Accident Act 1986 (Vic) (“the Act”), specifically paragraphs (a) and (c) of the definition of “serious injury”. In particular, Ms Yargi claims that she has suffered:
(a) a serious long-term impairment or loss of a body function, being injury to the lumbar spine; and
(c) a severe long-term mental or severe long-term behavioural disturbance or disorder.[1]
[1]Transcript (“T”) 1, L10-17
2 For the reasons which follow, I find that Ms Yargi does not suffer from a serious long-term impairment of the lumbar spine related to the motor vehicle accident which occurred on 5 May 2012. I find, further, that she has sustained a severe long-term mental or severe long-term behavioural disturbance or disorder related to the motor vehicle accident of that date.
Relevant factual background
3 I have set out the chronology of this matter, particularly in relation to medical assessment, as it illuminates my findings.
4 Ms Yargi was born in March 1978. She finished school in Year 11 and then commenced a Certificate III course in Hairdressing. She married in 1996 and has three children. Her daughter, Emel, was born in 1996, her son, Adam, was born in 2002 and her son, Mikael, was born in 2005. Mikael suffers from Attention Deficit Hyperactivity Disorder (“ADHD”).
5 In 2007, Ms Yargi divorced. She began working for YPA as a property manager in 2010.[2] In 2010, she also commenced working for Melbourne Estate Agents as a property manager.[3] It appears that she then had some months off when Emel became sick in 2010. She recommenced at Melbourne Estate Agents later in November 2010[4] and her income tax return for the financial year ending 2010-2011 showed earnings of $28,486.[5] She gave evidence that in July 2011, she stopped work due to her father being sick.[6]
[2]Fourth Amended Plaintiff’s Court Book (“PCB”) 6
[3]T38, L31 and T39 L1-2
[4]PCB 36
[5]Defendant’s Court Book (“DCB”) 50
[6]T39, L28 and T41, L29
6 Ms Yargi gave evidence that at some point in 2011, most likely in mid 2011, her father was diagnosed with cancer, caused by melanoma.[7] She gave evidence that she stopped work due to her father being sick.[8] The defendant disputed this as part of an attack on her credit. It pointed to a number of inconsistencies in the histories given to doctors, such as Mr Kenneth Brearley, that she was in fact working as of May 2012 as a casual sales assistant in a manchester store.[9] While her evidence on this point is inconsistent, I do find that she had left work in mid 2011 to care for her father, and remained off work for that reason at the time of the transport accident. I will return to this matter later.
[7]T79, L2-23
[8]T39, L28 and T41, L29
[9]PCB 168
7 In early 2012, Ms Yargi completed a Certificate IV in Property Services over six months, attending two nights per week.[10]
[10]PCB 23 at paragraph 14
8 On 5 May 2012, Ms Yargi was involved in the subject transport accident. In her affidavit, she provided the following history:
“I immediately felt my body go rigid and freeze. I was in shock and couldn’t move for a few moments. I then slowly got out of my car and made my way to the nature strip … .
I was taken by ambulance to the Royal Melbourne Hospital. I was experiencing pain in my neck and lower back and had bruising on my face and upper body. I underwent scans and testing and was kept over-night.”[11]
[11]PCB 8
9 On some of the histories that are given to the doctors, Ms Yargi described her car as being completely written off as a result of the motor vehicle accident. The Ambulance Victoria notes, which are recorded in other medical histories, state that the motor vehicle Ms Yargi was driving had only “minor damage”.[12]
[12]PCB 162
10 At the Royal Melbourne Hospital, a CT scan of Ms Yargi’s cervical spine was reported as normal. A chest x-ray was normal, an x-ray of the pelvis was normal and an x-ray of her cervical spine was also normal. It was noted there that “prevertebral soft tissues are within allowable limits”.
11 The Royal Melbourne Hospital note read:
“34 year old female driver involved in car vs car accident (hit from behind at 70km/hr?). No LOC, full recall of events, airbag not deployed. Complaining of neck pain and mid sternal tenderness.”[13]
[13]PCB 45
12 Ms Yargi was kept overnight and discharged the next day.
13 On 9 May 2012, Ms Yargi first consulted with Dr Sherriff, her treating doctor. The clinical note of that attendance records that she complained of sharp lower back pain, bilateral hand weakness associated with poor gripping, acute anxiety and panic attack. He noted that her injuries appeared to be of a soft-tissue nature.[14]
[14]PCB 46
14 Ms Yargi consulted with Dr Sherriff on 12 May 2012 and was prescribed Celebrex. At that time he noted there were altered sensations in the right hand, but also that she complained of altered left upper and lower limb reflexes. He could not find a cause for that. She was referred to an occupational therapist, Ms Aggarwal.[15] She complained, at this stage, of feeling scared and having experienced panic attacks. On 29 May 2012, she returned to consult with Dr Sherriff. He noted that she continued to experience severe anxiety and had begun to experience panic attacks.[16] At this point, Dr Sherriff prescribed her Lexapro and referred her to Lemonia Kollaras, a psychologist.
[15]PCB 43
[16]PCB 9 and PCB 46
15 It appears that Ms Yargi also consulted Ms Aggarwal on 29 May 2012 and, at that time, there was reported to be a marked reduction in her pain intensity.[17] On 14 June 2012, she consulted with Ms Aggarwal again and reported lower back pain radiating to both legs.
[17]PCB 43
16 On 19 June 2012, Ms Yargi consulted with Ms Kollaras for the first time. She reported to her that her car had been totally destroyed in the motor vehicle accident on 5 May 2012.[18] I have already noted the contrast of this with the Ambulance Victoria recording of the incident. The history given to Ms Kollaras was of both sharp lower back pain with intense spasms and psychological problems of feeling constantly nervous and worrying excessively. Ms Kollaras opined that she should not drive any distance, as this would cause an increase in her symptoms.
[18]PCB 50
17 Ms Yargi gave evidence that, at this stage, she was off work for the sole purpose of caring for her father. She gave evidence that in her family she was one of the few family members who held a driver’s licence and spoke English. I note that her mother did not speak English and did not appear to drive. Her sister, who resided with her mother and father, had a mental illness and was not able to drive or assist at medical appointments. There is a real query as to how she was able to drive her father to his medical appointments at this time. This was not explained adequately by her in her evidence, other than her stating she wanted to make sure she was there for him.[19]
[19]T26, L2-9
18 Ms Yargi’s father died in August 2012.
19 Around this time, it appears that Ms Yargi consulted with her lawyers. They obtained reports from both Ms Aggarwal and also from Dr Sherriff. They also arranged for a medico-legal report from Dr David Weissman, consultant psychiatrist. On 9 January 2013, he took a history from her that she had recently worked for five to six weeks in property management with Harcourt City Residential, but left because she felt overwhelmed. He took a history that she had left shoulder, neck and lower back pain. He then took the following history:
“She told me that her father died in August 2012 of a melanoma at the age of 63. She told me that he had only a four-month illness. I asked her whether she knew about his melanoma illness at the time of the transport accident. She told me that she only found out after the accident because he did not tell anyone initially and kept it to himself.”[20]
[20]PCB 98
20 Ms Yargi denied that this history was correct.[21] Rather, she said that the illness her father suffered from was first diagnosed in mid 2011 and only reached its terminal stage in about April 2012. She was pressed on this, and why it was the case that she then left work at the end of 2011. She gave evidence that her father’s condition required regular attendances at doctors during its early stages.[22]
[21]T79, L10
[22]T26, L2-9
21 Dr Weissman made a point of stating in his report that he found Ms Yargi to be a very genuine, credible and candid person. He diagnosed her, at that stage, with being depressed, and with symptoms of Post-Traumatic Stress Disorder (“PTSD”) of a mild to moderate nature.
22 When weighing Ms Yargi’s evidence on this point I find, consistently with what I have set out above, that Ms Yargi took time off from mid 2011 to care for her father. I consider her explanation of this consistent with her oral evidence that the melanoma reached a critical stage some four months prior to his death, but had been present and known to the family since mid 2011.
23 Ms Yargi then began working for Brad Teal Real Estate as a real estate property manager in February 2013. There is a paucity of medical material during 2013 until the report of Mr Brearley, a medico-legal orthopaedic specialist, who provided a report for Ms Yargi’s lawyers, dated 7 February 2014. The history taken by Mr Brearley, in his report, records that, as at the date of the accident, she had been working as a casual sales assistant for “Between The Sheets”. It was suggested this was inconsistent with her affidavit that she was doing volunteer work at the time of her accident and harmed her credibility. I do not place much weight on the discrepancy alleged, and consider it to be simply a matter of misunderstanding between Ms Yargi and the history taker.
24 Mr Brearley performed an examination of Ms Yargi’s back and legs. He noted that there was straight leg raising to 80 degrees on both sides (not diagnostic for a herniated disc) and all the deep reflexes were normal, and the sensation was normal. He diagnosed her cervical spine as showing no evidence of bony injury, but did diagnose soft tissue injury associated with the musculoligamentous supporting structures of the cervical spine.[23] He attributed her neck and back symptoms to the transport accident. He took a history that her neck and lower back pain occasionally required her to take time off work. I record that this was at the time of Mr Brearley’s report on 7 February 2014. This is an important examination in terms of her claim of ongoing disc-attributable pain. It confirms that there was very little to find by way of structural defects of her spine. Rather, the examiner was left with complaint of ongoing pain and very little pathologically to explain it.
[23]PCB 169
25 In July 2014, Ms Yargi resigned working for Brad Teal Real Estate.[24] She noted, in her email of resignation, that she resigned for health reasons. She was pressed as to why, in her affidavit dated 7 August 2019, she had deposed that she had left Brad Teal Real Estate due to the ability to cope with the combination of work stress and transport accident-related injuries, and had only communicated it to one of the staff at Brad Teal Real Estate, but not the other employers, when resigning.[25] At the trial of the action, Ms Yargi, for the first time, produced an email dated 9 July 2014 between herself and her employer, where she stated that she was resigning for health reasons.[26] In evidence, she said that she used the term ‘health reasons’ because she did not want to jeopardise her future employment prospects by revealing the nature and extent of her injuries. I accept Ms Yargi’s evidence on this point, as it seems quite a natural response to a difficult work relationship.
[24]PCB 235-236
[25]PCB 15 at paragraph 39
[26]PCB 236
26 A medical note of Ms Kollaras, dated 30 July 2014, was tendered.[27] In it, Ms Kollaras notes that Ms Yargi had not been coping very well and had resigned from her work to stay at home and look after her three children. Particularly, it appears that her twelve-year-old child, Mikael, had ADHD and was constantly demanding. It was put to Ms Yargi that the real reason for her resigning was not her motor-vehicle-related physical or psychiatric conditions, but rather demands posed by her family situation. In summary, they were that her son had ADHD and she had a difficult relationship with her daughter.[28] She denied this.[29]
[27]DCB 35
[28]T51, L23-30
[29]T53, L13-21, T95, L13-31 and T96, L1-6
27 Ms Yargi gave evidence that she thought being at work would have been better for her children, as they would then have a role model who was working. She did, however, concede that her son with ADHD caused problems at school and that the school was constantly calling her to deal with that situation. This is consistent with the note from Ms Kollaras dated 30 July 2014. I accept the defendant’s contention in part. I find based on the medical evidence set out above and the Plaintiff’s complaints of pain to this point that by July 2014, Ms Yargi was suffering from a soft-tissue lower back injury with associated psychological injury. I also accept that she was suffering from family stressors, being her son’s ADHD and her daughter’s rebellious nature. In combination, this resulted in her deciding to cease work. For reasons which follow, it is not necessary for me to decide in what proportion these two matters influenced her decision to cease work.
28 After leaving work, Ms Yargi appears to have experienced a remarkable improvement. Ms Kollaras reported to her lawyers, in a report dated 23 February 2015, in the following terms:
“Currently, Mrs Yargi’s global estimated assessment of functioning appears reasonably good with only short lived and expectable reactions to every day stressful events and with only slight difficulty in relational functioning. The client’s affective and emotional state has been calm and reflective and her mental state has indicated good insight and observing capacity.
…
Currently, Mrs Yargi’s psychological condition would indicate that there are no outstanding therapeutic issues or concerns and that treatment is to continue as indicated.”[30]
[30]PCB 52, 54 and 55
29 This finding was replicated in the report of Dr Weissman dated 28 April 2015.[31] Firstly, it is important to note that he read, to Ms Yargi, sections of his earlier report and she agreed with them.[32] This indicates he was correctly recording her history. He then records the following:
“She told me that there has been a very significant improvement in her pain, physical symptoms and her emotional state since I saw her last time, due to a range of factors … .”[33]
[31]PCB 108
[32]PCB 110
[33]PCB 111
30 Dr Weissman went on to state:
“She then told me that Pilates has helped the pain in her neck and back and help to strengthen her muscles. She told me that although she is not ‘100% better’ life is improved 80% … .”[34]
[34]PCB 112
31 Dr Weissman went on to record that Ms Yargi was able to perform most domestic activities with fewer problems and more energy. He confirmed that she no longer had neck pain, and her headaches had completely gone. He took a history that she only occasionally had lower back pain in cold weather.
32 Dr Weissman stated further:
“On careful questioning, I could not elicit any sustained or even intermittent reactive, depressive and anxiety symptoms at the present time … .”[35]
[35]PCB 119
33 Dr Weissman concluded by saying he could not find any PTSD symptoms and that he thought her Chronic Adjustment Disorder had now fully resolved.[36]
[36]PCB 119
34 It was put to Ms Yargi that the above was an accurate reflection of what her state was psychologically and physically as at April 2015.[37] Ms Yargi agreed that she was feeling better at that time.[38] As to her back pain, she stated that Dr Weissman had correctly recorded it as at that time, but she would often have flare ups of increased intensity.[39]
[37]T55 and T56
[38]T56, L3-23
[39]T56, L24-31 and T57, L1-3
35 As to her psychiatric condition, Ms Yargi stated that Dr Weissman had correctly recorded her status but that was on a good day.[40] She was pressed about this. Senior Counsel for the defendant put to Ms Yargi that this actually reflected her status from the time when she ceased work in mid 2014. She denied this and said her condition was not as Dr Weissman had recorded it for the last year.[41] Senior Counsel put to Ms Yargi that it was unlikely she could remember the exact details of the conversation with Dr Weissman so that she could be sure he was asking him only about the last week. She was adamant that she could remember the conversation, and that Dr Weissman had confined his questions to the period of the last week rather than last year. I find her evidence on this point to be unlikely given the event occurred some four years ago, was only one among numerous examinations that she had, and having regard to the way that she answered the questions when posed in the witness box. I consider that the improvement recorded by Dr Weissman had been present for at least some several months and accords with the history of Ms Kollaras, who made similar findings in February 2015. I do note, however, Ms Kollaras’ report from November 2014 demonstrated that Ms Yargi was still struggling under the weight of her physical and psychiatric injuries at that point. I find that her improvement occurred at the beginning of 2015 and was certainly present at the time when she saw Dr Weissman in April 2015.
[40]T58, L3-8
[41]T59, L1-5
36 Ms Yargi commenced seeing Ms Serpil Ozturk, psychologist, in November 2015, and continued there until 4 April 2016. Ms Ozturk has provided a report dated 27 June 2016. In summary, Ms Ozturk diagnosed, through the course of her six sessions, that Ms Yargi had a Pain Disorder, Chronic Adjustment Disorder with Depressed Mood and Chronic PTSD with a poor prognosis. This appears to be the first diagnosis of a pain disorder. She opined that these injuries affected Ms Yargi’s ability to maintain employment, and her activities of daily living were also affected to a moderate degree.[42] It does not appear to me that, at the time when Ms Ozturk came to take a history from Ms Yargi, she was informed of the improvement she had made during the beginning of 2015 as reported to Ms Kollaras and also to Dr Weissman. This seems curious, as it was the immediate past history that Ms Yargi presented to her new psychologist with.
[42]PCB 61
37 This deprived Ms Ozturk of the true history that Ms Yargi had experienced over the course of time since her motor vehicle accident, in respect of both her physical injury and also her psychiatric injury.
38 In March 2016, Ms Yargi’s new treating doctor, Dr Azhar Al Sadii, referred her to Dr Al Humrany, a psychiatrist. It appears that Dr Al Humrany saw her on only one occasion. He commenced her on Cymbalta at 30 milligrams. He was primarily concerned that she had developed chronic pain problems. Shortly after that, Ms Yargi began seeing Dr Firdevs Tat, clinical psychologist. Dr Tat took a history which led to a diagnosis of PTSD and a Chronic Major Depressive Disorder.
39 Ms Yargi returned to see Dr Weissman in October 2016.[43] He recorded that she had an overall physical and psychiatric deterioration. Particularly, he noted that her pain had increased from her physical complaints in about September 2015 and that this had led to a relapse or aggravation of her psychiatric condition.[44]
[43]PCB 124
[44]PCB 136
40 Despite noting that Ms Yargi’s pain from physical causes had increased in September 2015, it does not appear that anything changed for her in terms of physical treatment. There are numerous consultations with Dr Sadii during 2016. On only one occasion is there mention of back pain, which occurs on 21 April 2016, when it was noted there was “some spine discomfort”[45] at the L2‑L4 level, and all lower limb findings were normal. This seems to indicate a different picture than the one provided to Dr Weissman in October 2016.
[45]PCB 249
41 In fact, Dr Sadii only arranged for a lumbar MRI scan on 12 March 2017, which showed L5-S1 degenerative disc disease, but was otherwise normal. Ms Yargi was then referred to Dr V I Karlov, physician, who she saw on 7 July 2017. At that time, she complained of pain in her lower back, with pain shooting down her legs. This is in contrast to the finding of Dr Sadii of 12 April 2016 noted above. Dr Karlov’s diagnosis is put extremely briefly in relation to her physical complaints. He firstly notes that she has a lumbar disc with sciatica, and then that she has a back injury with neuropathic pain. While not specifically asked to comment on causation, and without being appraised of the history of improvement in the early part of 2015, Dr Karlov implicitly seems to accept that the back injury relates to the motor vehicle accident. I note that the MRI scan shows an entirely unremarkable examination, with no nerve root impingement or disc bulge.[46] A CT scan of the lumbosacral spine and sacroiliac joints of 7 April 2017, shows advanced degenerative disc height narrowing, with no convincing evidence of underlying nerve root impingement.[47]
[46]PCB 40
[47]PCB 42
42 Ms Yargi went back to see Dr Weissman on 10 July 2017. His history records that Ms Yargi confirmed having worsening lower back pain. She gave a history that she had increased Cymbalta to 220 milligrams and tried Endep, but the side-effects were intolerable. His conclusion as to her psychiatric condition was that she was suffering from mild chronic PTSD symptoms and traumatisation features.
43 A medico-legal report from Mr Brearley for Ms Yargi dated 13 July 2017 noted that the injury to her neck had cleared up and her lower back was her sole physical problem. Mr Brearley diagnosed aggravation of pre-existing degenerative changes at the L5-S1 level.[48]
[48]PCB 177
44 Relevantly, then, Ms Yargi came under the care of Dr Uchenna Nwankwo, a rehabilitation specialist, at Advanced Health Care in Bundoora. He commenced her on a six-month pain management course. I consider it highly relevant that at a clinical examination on 27 February 2018, the pain management team, when testing Ms Yargi’s back function, recorded:
“Disproportionate, inconsistent, non-mechanical/non-anatomical pattern of pain provocation in response to movement/mechanical testing.”[49]
[49]PCB 83
45 I consider this to be telling and confirmatory evidence, that Ms Yargi’s reporting of the injury related to her back condition was not as significant in physical terms as she has sought to portray, both to various medical practitioners, and also in evidence to the Court.
46 Ms Yargi was examined by Associate Peter Professor Doherty, psychiatrist, on behalf of the defendant on 23 August 2018. Relevantly, she said to him that her pain since the accident had been about the same, not really changed, and just fluctuated in intensity.[50] He took a history that her car had been written off in the accident, and he noted that in the Ambulance Victoria records it had only been reported as sustaining minor damage. He found that she had a pain-related psychiatric condition, and he considered that she had a Somatic Symptom Disorder with predominant pain persisting according to DSM-5 criteria. He considered that it was of a mild intensity and that the Adjustment Disorder she suffers is mild in severity.[51] I note that he had access to the report of Ms Kollaras dated 23 February 2015. He recorded that her psychiatric symptoms were not such as to preclude her from returning to work.[52] I note that he has only examined her on one occasion, and his opinion is limited in value on account of this fact.
[50]DCB 8
[51]DCB 11
[52]DCB 15
47 Ms Yargi saw a medico-legal occupational physician on 19 February 2019, Dr Joseph Slesenger, as arranged by her lawyer.
48 Ms Yargi saw Dr Robert Lefkovits, a medico-legal physician, on behalf of the defendant, on 14 March 2019. He opined that, while she had suffered soft-tissue injuries at the time of the motor vehicle accident, she had made a recovery from a purely organic perspective. He stated that the changes seen on CT scanning were most certainly constitutional and not due to any injuries sustained in the May 2012 accident. He considered that the ongoing problems were psychological in nature.
49 Dr Lefkovits provided a further report dated 18 April 2019, in which he concluded that the surveillance film shown to him supported his opinion that there was no ongoing organic injury to the spine, but rather it was a psychiatric condition.
50 Dr Tat, psychologist, provided a report dated 23 April 2019, in which she opined there were significant psychiatric concerns for Ms Yargi, and diagnosed PTSD.
51 On 29 April 2019, Professor Doherty provided a supplementary report, having viewed surveillance videos, and also the report of Dr Lefkovits earlier referred to. In that further opinion, he affirmed that Ms Yargi had a Mild Adjustment Disorder. He did make the point that the surveillance video did not give much insight into the mood state of Ms Yargi.[53] This seems a fair comment that was echoed by Ms Yargi’s counsel in her closing.
[53]DCB 23
52 Ms Yargi saw Dr Weissman again on 7 May 2019. He concluded that she had a mild to moderate improvement as a result of the pain management course that she had done with Dr Nwankwo. He considered that she had mild residual traumatisation features, but did not have a full-blown PTSD. He noted that she had a partial capacity for suitable duties, and perhaps a capacity for full-time duties, but needed some workplace assistance.[54]
[54]PCB 164
53 On 9 July 2019, Professor Nick Paoletti, psychiatrist, saw and examined Ms Yargi. This was the first time that he had seen her or provided an opinion in this case. He diagnosed an Anxiety Disorder, a Depressive Disorder and Somatic Symptom Disorder with predominant pain. He attributed the majority of these conditions to the motor vehicle accident.
54 As can be seen from the above detailed history, Ms Yargi has had a long course of treatment since the time of the motor vehicle accident. I have found most use from the treating practitioners and also the detailed, thorough and consistent reporting provided by Dr Weissman. I prefer these materials to the later medico-legal reports of others, such as Professor Paoletti, who has seen Ms Yargi only once in the month prior to trial, or Professor Doherty, Mr Lefkovits or Dr Slesenger. I note, further, that at the trial, Ms Yargi having commissioned Dr Weissman to provide some five reports over the course of six years, chose not to rely on any of his material, despite placing it into the Court Book but, instead, relied, for psychiatric medico-legal purposes, on Professor Paoletti.
Legal principles
55 I was helpfully provided with the decision in Transport Accident Commission v Kamel.[55] In considering Ms Yargi’s claim made under the s93(17) definition of “serious injury” pursuant to paragraph (a), I must be satisfied that the motor vehicle accident has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long term. The Court made clear that where an impairment or loss of a body function is produced as a consequence of the mental disturbance or disorder, that impairment must be considered under paragraph (c), rather than under paragraph (a).
[55][2011] VSCA 110 at paragraph [65]
56 Particularly in this case, I am also concerned to determine the question of whether the impairment of the body function is the product of both organic and mental conditions. In the circumstance where the impairment of the body function results from both organic and mental conditions, the Court of Appeal has made clear that it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.
The Plaintiff’s case under subparagraph (a) – physical injury
57 For the reasons which follow, I find that Ms Yargi has suffered from an organic soft-tissue injury to the lumbar spine as a result of the motor vehicle accident on 5 May 2012. I find, however, that there is no substantial organic basis for the pain and suffering consequences relied on within the meaning of s93(17).[56] I make that finding for the following reasons:
[56]Meadows v Lichmore [2013] VCSA 201 at paragraph [21]
(a) Ms Yargi claimed, in her particulars of injury filed with the Court dated 30 January 2019, a claim for a serious long-term impairment or loss of body function of the spine. At the time of trial, Ms Hartley, who appeared with Ms Ryan for Ms Yargi, focused attention on her lumbar spine as being the source of her claimed organic injury. At the time, when Ms Yargi suffered from the motor vehicle accident on 5 May 2012, she stated, in her affidavit, in this proceeding she complained initially of pain in her neck and lower back.[57] However, it appears that when she arrived at the Royal Melbourne Hospital, x-ray of the pelvis and CT scans were performed only of the cervical spine.[58] This is consistent with the note from the Royal Melbourne Hospital which records that she was complaining of neck pain and mid sternal tenderness at the time of presentation. However, I accept that by the time she came to see Dr Sherriff on 9 May 2012, she was complaining of sharp lower back pain. Temporarily, at least, there seems to be some complaint of lower back pain. However, Dr Sherriff, at the consultation on 9 May 2012 and again on 12 May 2012, seems mainly concerned with the altered sensation in the right hand in the distribution of the ulnar nerve, once again focusing attention on the cervical injury. In fact, Dr Sherriff seems uncertain how the lower limb reflexes were blunted, given the injury Ms Yargi complained of. This is similar to the examination and history findings by Ms Aggarwal on 22 May 2012. It leaves me with the impression that there was some real doubt about whether the lower back was significantly injured in the course of the transport accident;
[57]PCB 8 at paragraph 13
[58]PCB 39
(b) There is no referral for investigation of the lower back by Dr Sherriff during the course of 2012, despite Ms Yargi complaining of lower back pain. I infer that there was doubt in Dr Sherriff’s mind as to whether there was a lower back injury or to the cervical spine. Further, that if there was such injury, then it was likely to be soft tissue only;
(c) I note the discrepancy as to whether or not Ms Yargi’s vehicle was completely written off as a result of the accident, or whether it sustained minor damage as recorded by Ambulance Victoria. I mention this only because it might be said that, in a more dramatic accident which destroyed Ms Yargi’s vehicle, she is likely to have sustained a more significant injury. This is an issue I am unable to resolve on the present material save to say that there is a discrepancy;
(d) Ms Yargi was pressed as to why she left work, and she responded by saying that it was for both psychiatric and physical reasons. As set out above in the chronology, I find that she left work predominantly to deal with her psychiatric injury and her family problems, this being her son’s ADHD diagnosis.
58 Ms Yargi’s case was said by the defendant to be “remarkable” for the fact that her evidence was unreliable on a number of fronts being:
(i)her account of the day of the accident, in which she said she had left the children at home with her dying father to go to do volunteer work. I find little substance in this attack, given her daughter was sixteen and the children were also being looked after by their grandmother;
(ii)her account of the fact she was volunteering on the day of the accident, given the competing histories to Mr Brearley, for example that she was in fact working and planning to work on, when in fact she said she had taken time off work to care for her father. I have dealt with this earlier in my reasons and find little to this point;
(iii) the general inconsistencies as to when her father became ill and her timing and knowledge of this;
(iv)her histories in early 2015 about her improvement, which was not communicated to doctors who she saw after that time.
59 Overall, having watched Ms Yargi closely in cross-examination and re-examination, I formed the impression that she was an unimpressive witness. I acknowledge that, for a person suffering from mental illness, the giving of evidence in this environment is difficult but, at times, her evidence was contradictory. When asked about why she ceased work in July 2014 and went onto a carer’s pension, she stated that it was to do with her injuries. When pressed about her son’s difficulties at school, as he had ADHD, being the reason for going onto the carer’s pension, she said:
Q:“That was exactly what I was putting to you in a different form seven or eight minutes ago, that is, that you resigned from your work exactly for that reason including the [autism] - - -?---
A: That is not correct.
Q: Well, she’s got it wrong?---
A: That’s not correct, I resigned from my work because I was not coping at work because of my traffic accident.
Q: Well, who was going to care?---
A. My son was at school, he didn’t need to be cared for at home, he goes to school.
Q:Well, why are you needing carer’s allowance if he doesn’t need caring for?---
A:Because the school constantly would call me, when I had resigned they would constantly call me all the time and overwhelm me with their phone calls. And, yeah, that’s the reason it had nothing to do - I didn’t resign - nothing to do with my son. My son as (sic) at school, everything was perfectly fine, I had to support my family, I had to pay the bills”[59]
[59]T49, L13-30
60 This does not seem consistent with the note of Ms Kollaras of the consultation on 30 July 2014.
61 Ms Yargi, as I found above, seems to have recovered lower back function very significantly at the commencement of 2015. As I have indicated, that recovery was reported to two separate practitioners who have been examining her over a number of years. Both Ms Kollaras and Dr Weissman provide accurate contemporaneous recordings of Ms Yargi’s condition. I consider them very useful in determining the issue of her state as at that time. Ms Yargi disputed that the records of Ms Kollaras and Dr Weissman accurately represented her condition for any more than a few weeks around the time of those examinations. As I have set out above, I do not accept her evidence on this point. Based on this evidence, I consider that she had sustained a soft-tissue back injury which had predominantly resolved by early to mid 2015. At that stage, she was performing exercise classes and not working.
62 There is no reason proffered as to why Ms Yargi’s condition deteriorated so significantly after mid 2015, given that she had sustained only a soft-tissue injury, as I have found. Plaintiff’s counsel, in closing, suggested that Ms Yargi’s organic spinal condition was one which was variable in nature and constantly fluctuated. While so much may be accepted, the significant improvement shown after Ms Yargi ceased all activities of work which aggravated her pain, and commenced rehabilitation in the form of Pilates and walking after ceasing work, suggest that the recovery that she had made by mid 2015 was to be of lasting impact, especially where the injury was a soft tissue one, at worst.
63 The doctors treating Ms Yargi after this time were not informed of this period where she had improved. This, in my opinion, must have significantly affected their opinions and diagnosis of her.
64 Despite the chronology revealing that the plaintiff began complaining of an increase in lower back pain, significantly in late 2015, there is no associated referral for lumbar spine investigation performed by her treating doctors, which indicates that they did not view the lumbar spine as being the predominant cause of her problems.
65 The radiological examination performed on 12 March 2017, being an MRI scan, shows entirely unremarkable examination.[60] The CT scan shows advanced degenerative disc disease centred at L5-S1, but there was no convincing evidence of underlying nerve root impingement.[61] In my opinion, the tenor of the radiological evidence is against the fact that there was a frank organic disc injury caused or aggravated by the motor vehicle accident;
[60]PCB 40
[61]PCB 42
66 The opinion of Dr Karlov seems, at best, equivocal, where he noted that the disc injury that she has is likely to deteriorate. On one view, he is simply opining that the disc degeneration that is shown will deteriorate. On the best case for Ms Yargi, he is opining that the disc injury has been caused or aggravated by the motor vehicle accident and that it will deteriorate with time. Dr Karlov, similarly, does not seem to have a history of her significant improvement in early 2015. His opinion is supported, to some extent, by the medico-legal report of Mr Brearley dated 13 July 2017. He diagnosed an aggravation of pre-existing degenerative changes at L5-S1.[62] He does not appear to have been provided with the history of Ms Yargi’s recovery through 2015. Both the opinions of Dr Karlov and Mr Brearley are significantly compromised by that fact.
[62]PCB 177
67 When Ms Yargi attended at Advanced Health Care in Bundoora she was examined by the rehabilitation physicians there. As set out above, in their clinical examination, it showed that she was displaying symptoms which were disproportionate and inconsistent with her alleged organic lumbar injury.
68 On examination, Mr Lefkovits found there was abnormal illness behaviour and that physical impairment was not due to an organic reason, but rather a Chronic Pain Syndrome.
69 On review of the video surveillance footage tendered by the defendant, it did not show great physical restriction.[63]
[63]Exhibit D3
70 For the above reasons, I find that Ms Yargi sustained a soft-tissue injury to her spine at the time of the motor vehicle accident on 5 May 2012. That organic lower back injury produced consequences which were largely resolved by mid 2015. Having considered the residual consequences relating to her largely resolved back injury, I do not find they could be considered “serious” when assessed against other like cases in the potential range of cases. Thereafter, her complaints of pain and consequent limitations relate primarily to her psychiatric condition. In these circumstances, she has not made out her case pursuant to subparagraph (a).
The Plaintiff’s case under subparagraph (c) – psychiatric injury
71 In considering whether the plaintiff’s psychiatric condition is “severe”, I must find that there is a sufficient causal linkage between the organic physical injury and the psychiatric injury.[64]
[64]Grace v Elmasri & Anor [2009] VSCA 111 at paragraph [137]
72 I find that Ms Yargi has suffered from a severe impairment or loss of the body function as a consequence of a mental disturbance, being features of a PTSD and Somatic Symptom Disorder with persistent pain as a result of the motor vehicle accident on May 2012. I find that she has sustained consequences which can be classified as severe long-term mental or severe long-term behavioural disturbances. I find that such a psychiatric injury is permanent, and that it was, and is, linked to her organic physical injury. I find that for the reasons which follow.
73 The notes of Dr Sherriff of 9 May 2012 show that, at the time of presentation on the date of the accident, Ms Yargi had acute anxiety and panic attacks. He prescribed Valium.[65] By the time of the consultation on 29 May 2012, there was severe anxiety and a psychological deterioration, and Dr Sherriff had her placed on Lexapro.[66] These temporal notations indicate that, from an early stage, she had ongoing serious psychological issues associated with the motor vehicle accident.
[65]PCB 238
[66]PCB 237
74 Ms Yargi was referred early on for psychological treatment which has been reasonably consistent from that time on, being with Ms Kollaras, Ms Ozturk and Dr Tat.
75 Ms Yargi has had ongoing medication of varying types and strengths since the date of the accident. These are Lexapro, Cymbalta and Endep.[67]
[67]PCB 45-47, 49-53, 56-58 and 77-79
76 Ms Yargi has been diagnosed with a Somatic Symptom Disorder consistently by Dr Weissman,[68] Professor Doherty[69] and Professor Paoletti.[70]
[68]PCB 147 and 164
[69]DCB 11
[70]PCB 214 and 230
77 Ms Yargi has been diagnosed with features of PTSD by Professor Paoletti and Dr Weissman.[71] Dr Tat diagnosed PTSD.[72]
[71]PCB 163
[72]PCB 71
78 To the extent that Ms Yargi suffers from an impairment of body function to the lumbar spine that is the product of both organic and mental conditions, I find that it does not fall within the classification required by s93(17)(a), as it is not predominantly the product of the organic spinal condition but, rather, the product of her psychiatric condition. Its longevity, as set out in the chronology, suggests it is a permanent condition. In making this finding, I refer to the matters set out above where I considered Ms Yargi’s physical injury.
Consequences of the psychiatric injury
79 Given my findings above, I turn now to consider the consequences of Ms Yargi’s psychiatric condition. I consider that the consequences, when looked at in total, constitute a severe long-term mental or severe long-term behavioural impairment as a result of her psychiatric injury disorder when assessed against the range of cases to be considered.
80 First, Ms Yargi has experienced an impact on her work capacity. This is variously referred to as her being totally incapacitated for work or having some part-time capacity. I find the opinion of Dr Weissman to be convincing, wherein he opines that she has a part-time capacity for employment at present, and only possibly could have at a later stage, with training, a capacity for full-time employment. I further find that she left employment with Brad Teal Real Estate, in part, due to her psychiatric conditions. In total, this represents a significant factor.
81 Ms Yargi has suffered from a decrease in her ability to socialise by reason of her psychiatric injuries. She struggles with traffic anxiety, making visiting her parents, who live on the other side of the city, difficult. It has also affected her ability to attend social events. For example she gave evidence that when she takes her son to his basketball games she is obliged to do the scoring with other parents. She gave evidence that she found this difficult, and so she would wait in the car, away from the other parents. She was only seen on video when her son complained to her that the other parents were becoming upset by the fact that she would not attend at the scoring bench to perform her duties. I accept her evidence that she has become more socially withdrawn as a result of her injuries. I find that she suffers poor concentration and ability to multitask, as she used to do in her role as a property manager.
82 Ms Yargi’s daughter has provided an affidavit. In that affidavit, Ms Yargi’s daughter deposed that there had been significant changes, for the worse, in her mother’s personality. I note that Ms Yargi gave evidence that, since the accident, she has become grumpy, snappy and irritable.[73]
[73]PCB 13 and T98, L16-20
83 Ms Yargi is also currently taking ongoing medication and has been taking such medication over a considerable period.
84 When consideration is given to all these factors and the medical diagnoses, particularly of Dr Weissman, Ms Kollaras and Dr Tat, I find that Ms Yargi has sustained a severe long-term mental or severe long-term behavioural disturbance as a result of the transport accident on 5 May 2012.
85 I shall hear parties as to the question of costs.
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