Kotevska v Transport Accident Commission [2012] VCC 306

County Court of Victoria|2012-03-23|Before: Ms J

RULING: The plaintiff has leave to bring a proceeding at common law to recover damages for the claimed injuries.

**1 Before the Court is an application brought by Originating Motion filed on 15 June 2009 by which the plaintiff applies for leave pursuant to s.93(4)(b) of the Transport Accident Act 1986 ("the Act") to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 20 January 2007.

3 The definition of "serious injury" relied upon by the plaintiff is under sub-s.(17):**

"(a) serious long term impairment or loss of a body function."

**4 The injuries for which the plaintiff seeks leave are injuries to the spine and a psychiatric injury.

5 The following evidence was adduced at the hearing of the plaintiff's proceeding:

• The plaintiff gave evidence and was cross-examined;

• Ms Blumberg, psychologist gave evidence and was cross-examined;

• Dr Haralambakis, general practitioner gave evidence and was cross-examined;

• The plaintiff tendered her Court Book ("PCB"), pages 6-93: Exhibit A;

• The defendant tendered an application for a carer allowance dated 13 March 2007: Exhibit 1

• The defendant tendered an application for a carer allowance dated 24 March 2009: Exhibit 2

• The defendant tendered its Court Book ("DCB"), pages C; D, and 1-24: Exhibit 3.

• The defendant tendered one page of the clinical records of Southern Health: Exhibit 4

6 Essentially the issues raised by the defendant were - firstly, that if the plaintiff suffered physical injuries and a psychiatric injury in the transport accident that she was not suffering from any such injury now; secondly, that if the plaintiff suffered a spinal injury to her cervical spine and her thoracic spine that the two were separate body functions and could not be aggregated, and thirdly that if she suffered both injuries then the consequences to her could not satisfy the statutory tests.

7 I have considered all of the evidence tendered by the plaintiff and the defendant and the helpful submissions made by Ms Forbes and Mr Middleton. I am satisfied that the plaintiff suffered an injury to her spine which is serious and suffered a psychiatric injury which is severe.

8 The plaintiff and her husband were rear seat passengers in a car which was struck from behind by a truck. The plaintiff's husband suffered moderately severe injuries, although, reference to the actual nature of his injuries was really only made in passing. The plaintiff suffered multiple injuries, but primarily injuries to her upper spine and a secondary psychiatric injury which has been given different diagnostic labels.

9 The plaintiff and her husband were removed from the scene of the transport accident by ambulance. They were taken to the Alfred Hospital.[1] The plaintiff underwent x-rays and was examined by medical staff. She was discharged that day.

10 The plaintiff's husband was admitted to The Victorian Rehabilitation Centre where he was an inpatient for some time. The plaintiff was subsequently admitted for treatment on 21 March 2007 and finally discharged on to November 2007.[2] The plaintiff also saw Dr Haralambakis, general practitioner on 13 March 2007. He commenced treating the plaintiff at that time for the injuries she suffered in the transport accident. He continues to treat her generally, and in relation to those injuries.

11 Ms Blumberg, clinical psychologist was called to give evidence and was cross-examined. During cross examination she was handed a discharge summary of The Victorian Rehabilitation Centre. It was during the cross examination that she explained how the discharge summary had been prepared. For example, she explained that under the heading "Psychology" there was a description of the plaintiff's psychological health which Ms Blumberg said was prepared by her. The other headings were prepared by medical and para-medical practitioners from their particular treating perspective.

12 The discharge summary under the heading of "Physical" and "Functional" describe that the plaintiff was having neck and interscapular pain. She was advised to undertake a home exercise program. She was unable to continue with hydrotherapy because of the onset of dizziness. She had physiotherapy treatment. She required assistance with heavy domestic tasks from her family. She was provided with education regarding back care strategies to minimise pain when undertaking functional tasks. She had returned to driving after an absence.

13 It is very clear from the treatment afforded to the plaintiff at The Victorian Rehabilitation Centre that a firm diagnosis was made that the plaintiff had suffered a physical injury. Despite Mr Middleton's attack upon the plaintiff's medical material that it was insubstantial and did not disclose an injury of any significance, it is abundantly clear that the plaintiff did suffer a physical injury.

14 Dr Clayton Thomas, consultant in rehabilitation and pain medicine is a medical specialist who practices at The Victorian Rehabilitation Centre. He saw the plaintiff on 25 September 2007. In his report dated 2 October 2007 it is clear that he found tenderness in her cervical and thoracic spines. In his clinical judgement she had suffered a whiplash associated disorder. He considered that in the absence of treatment her condition was likely to deteriorate, so he encouraged her to exercise.[3]

15 The balance of the medical evidence is much to the same effect. Dr Waterston, neurologist examined the plaintiff on 20 January 2007. In his medical report dated 2 June 2008 he found loss of movement in the plaintiff's cervical and thoracic spines. He was of the opinion that the plaintiff had suffered a moderately severe cervical spine dysfunction causing limitation of movement and pain.[4] The tenor and substance of the opinions of The Victorian Rehabilitation Centre, Dr Thomas and Dr Waterston resonate in the opinions of Mr O'Loughlin, orthopaedic surgeon who examined the plaintiff on 1 April 2008;[5] Mr Chan, physiotherapist who treated the plaintiff between 17 December 2007 and March 2008,[6] and Mr Schofield, orthopaedic surgeon who examined the plaintiff on 6 March 2012.[7]

16 Dr Haralambakis gave evidence and was cross-examined. I was impressed by his evidence. His opinion regarding the injuries suffered by the plaintiff is also consistent with the opinions of the other medical practitioners I have just referred to, but in addition his evidence contained a greater level of depth of the treatment provided to the plaintiff over a very significant period of time.

17 There were two things in particular which I considered were of importance in Dr Haralambakis' evidence. The first, was that he was concerned enough about the chronicity and gravity of the plaintiff's complaints to have her undergo a regime of x-ray investigation to determine whether there was anything sinister in her cervical or thoracic spines in addition to the soft tissue injuries which he considered she had suffered. He considered other treatment options for the plaintiff finally coming to the conclusion that her treatment options were very limited.[8]

18 The second, was that he analysed what he considered to be at the seat of the chronicity and gravity of the soft tissue injuries to her cervical and thoracic spines. He was of the opinion that the plaintiff had suffered a pain syndrome which was organically based. He referred to studies which disclosed that persons with injuries to the spine can develop sensitisation in the spinal cord as a result of having chronic pain over a period of time. Even if the physical injury has healed such a person can develop a chronic pain which he described as "real pain".[9] Furthermore, he added that he had noted weakness in the muscles of the plaintiff's neck and shoulder girdles.[10]

19 Mr Middleton challenged Dr Haralambakis' opinion on the footing that the x-ray investigations showed no pathological process which could explain the chronic and grave pain which the plaintiff complained about. Dr Haralambakis repeatedly acknowledged that his opinion was based upon the subjective complaints of the plaintiff, but also based upon his examinations of the plaintiff and his clinical judgement. It was not my impression that he altered his evidence in any material way. It was my impression that he considered the plaintiff to be a reliable historian whose complaints he could accept and rely upon in making a clinical judgement.

20 I have read the plaintiff's affidavits carefully. I have likewise read the reports of the examining medical practitioners carefully, and also the transcript of the evidence of Ms Blumberg and Dr Haralambakis. There is no instance of comment that the plaintiff was an unreliable historian or evidence of exaggeration which rendered the task of the examiner more difficult in determining the nature and extent of the injuries complained of by the plaintiff.

21 Moreover, I was impressed by the plaintiff's evidence. I thought she gave her evidence in a very fair and balanced manner. Indeed, there was no serious attack upon her credit by Mr Middleton. I have little hesitation in accepting the plaintiff's evidence in whole.

22 The importance of the findings I have made regarding the plaintiff's credit feed into the criticisms inherent in the cross examination conducted by Mr Middleton of Dr Haralambakis. A fair amount of his cross-examination was directed to Dr Haralambakis' clinical judgement, regarding whether the plaintiff had suffered an injury to her cervical and thoracic spines, and Dr Haralambakis' acceptance the plaintiff's subjective complaints. I accept that the histories given by the plaintiff to the examining medical practitioners were essentially fair and accurate for two reasons - firstly, because of the conclusions I have reached about her credit, and secondly, there was no serious concern expressed by the examining medical practitioners that what they were being told was in some way tainted by the plaintiff giving inaccurate histories.

23 Mr Middleton submitted that I should accept the opinion of Dr Brown, occupational physician who examined the plaintiff on 8 August 2011. Dr Brown found very little on examination. He concluded that the plaintiff's clinical picture was unclear, and that his clinical findings were consistent with the plaintiff suffering age-related degenerative changes without any other specific pathology being in evidence. Whilst not discounting that the plaintiff had suffered an injury to her cervical and thoracic spines he was of the opinion that the effects of such injuries had ceased.[11]

24 Mr Middleton submitted that the injuries to the cervical and thoracic spines are separate injuries impairing separate body functions. He referred me to Lu v Mediterranean Shoes Pty Ltd[12] as authority for the proposition that separate body functions cannot be aggregated. The proposition is an obvious one, but in this case Mr Middleton did not refer me to any medical evidence to support his submission that the injuries to the cervical thoracic spines are separate body functions.

25 Whether two injuries impair separate body functions is a matter of anatomy. It is also a matter of logic and common sense. The submission has been made to me on previous occasions in the absence of any particular medical evidence on the subject. It has been left to my sense of logic and common sense. I can see no logical reason why, for example, an injury to the knee and injury to the ankle of the same leg which occurred at the same time could not be proposed as an impairment of the knee or the ankle, or the leg.

26 It occurs to me that the spine is one mechanism composed of vertebrae, discs and surrounding soft tissue. The fact that the medical fraternity have divided the spine it into cervical, thoracic and lumbar appears to me to constitute more a matter of convenience in identification rather than denoting that each area is discrete as a separate body function. I do not accept the submission made by Mr Middleton. I propose to treat the injuries to the cervical spine and the thoracic spine as constituting an injury to the spine.

27 The plaintiff was born on 9 May 1944. She is just short of her 68th year. She is married. She has a son who lives with his partner in Sydney.

28 Mr Middleton cross examined the plaintiff regarding other ailments for which she has sought and received medical treatment. I gathered that the cross examination was intended to disclose other impairments which contributed to the same consequences contended for by the plaintiff arising from the impairment of the function of her spine, however, the evidence did not support such a proposition.

29 The plaintiff suffered a number of injuries for which he was treated at The Victorian Rehabilitation Centre. She was subsequently treated by Dr Haralambakis; a number of other medical practitioners, and she also had physiotherapy, hydrotherapy, massage, acupuncture and chiropractic treatment.[13]

30 The plaintiff has constant pain in her spine. The movements of her cervical spine, in particular, are restricted. In her affidavit sworn 27 May 2009 she said that her symptoms worsen with prolonged sitting or remaining in the same position for any length of time. She has difficulty rolling over in her bed, presumably because of pain. She struggles to lift and carry objects, and is restricted in how much shopping she can carry at one time.

31 The plaintiff said that her activities are restricted. She is unable to knit and sew. She finds it difficult to undertake ordinary domestic chores such as mopping and vacuuming. Her husband is disabled as a result of the injuries he suffered in the same transport accident. He is dependent upon her. She finds it difficult to help him shower, dress and prepare his meals.[14] She is reliant upon her son who lives in Sydney who visits regularly. He assists her with the heavier domestic chores when he visits from Sydney.

32 The plaintiff takes a range of medication. She takes about four Digesic per day for pain relief. She also takes a Panadol. Dr Haralambakis had prescribed the plaintiff Neurontin and Lyrica for treatment of neurogenic pain; Mobic which is an anti-inflammatory, and Tramal for pain relief. He obviously considered that it was in her interests to use that medication for pain relief. The plaintiff was unable to use that medication because she was intolerant to all of them.[15]

33 Mr Middleton submitted that I should be cautious in accepting the plaintiff's evidence. I see no reason to exercise any such caution. He also submitted that the fact that the plaintiff had applied for a carer allowance demonstrates a greater physical capacity than she was prepared to concede. However, I have looked at the applications for a carer allowance.[16] I fail to see how the provision of assistance to the plaintiff's husband referred to in Question 9 in the application dated 13 March 2007 and in question 14 in the application dated 24 March 2004 demonstrate a contradiction to the plaintiff's evidence.

34 The conclusion I have reached is that the evidence of the plaintiff and the medical examiners, whose evidence I accept, disclose that the plaintiff suffered injuries to her cervical and thoracic spines which have resulted in an impairment of her spine which is undoubtedly long term. She has suffered from that impairment since the date of the occurrence of the transport accident, and the only inference to be drawn from the medical evidence which I accept, is that it will continue indefinitely into the future.

35 Furthermore, I have concluded that the consequences to the plaintiff of the impairment are serious. It is clear that her capacity to function is significantly impaired by pain and restriction of movement requiring the daily use of medication. She no longer has the full, free and unrestricted use of her spine to the extent that it impacts dramatically upon her capacity to undertake the tasks her daily living. It is for these reasons that I find that the consequences to the plaintiff satisfy the statutory test that she has suffered a serious injury.

36 The discharge summary of The Victorian Rehabilitation Centre contains a summary assessment made by Ms Blumberg following the occasions on which she treated the plaintiff. She noted that the plaintiff was struggling to adapt to her ongoing pain and limitations, and was struggling to adjust to her husband's changed personality. Her mood was down. She recommended further treatment.[17]

37 After the plaintiff was discharged from The Victorian Rehabilitation Centre she was treated by Dr Haralambakis for both her physical injuries and her psychiatric injuries. He was of the opinion that the plaintiff was suffering from a chronic adjustment disorder and post traumatic stress disorder which were a direct result of the transport accident and the incurring of her physical injuries.[18] He had attempted to treat her with antidepressant medication. She could not tolerate the medication. He prescribed her Endep which she continues to take. He described its effectiveness as being mild-to-moderate, but with side-effects, namely, dry mouth and drowsiness which he said the plaintiff was tolerating.[19]

38 Dr Haralambakis referred the plaintiff back to Ms Blumberg. The plaintiff next saw Ms Blumberg on 4 October 2011. In her report dated 22 February 2012 Ms Blumberg referred to treating the plaintiff on six occasions up to 28 November 2011. As a consequence of that treatment she described the plaintiff's condition as having deteriorated markedly in emotional coping and functioning. She noted a marked progression in her adjustment to the transport accident since she was discharged from The Victorian Rehabilitation Centre. She diagnosed the plaintiff as suffering from moderate depression and anxiety; severe chronic pain, and moderate post-traumatic stress disorder.

39 Ms Blumberg noted, in particular, that the plaintiff had become anxious, withdrawn and depressed. Her emotional functioning had deteriorated. She was tired, irritable and depressed. She frequently cried because of her pain and through frustration. She had regressed in her adjustment to the transport accident and there was a re-emergence of symptoms of post-traumatic stress disorder. She was bitter, angry and felt hopelessness in her perception of her life and the curtailment of her enjoyment of it. She could not move on from the transport accident because it was in her thoughts constantly. She was unable to consider the future and had an exaggerated startle response. She also described that the plaintiff had developed a chronic pain condition which had resulted in the pain becoming amplified.[20]

40 Ms Blumberg was told by Dr Haralambakis that the sessions of psychological counselling had improved the plaintiff's distress. However, Ms Blumberg considered that the plaintiff was suffering a moderate level of distress. She then said that the plaintiff "urgently" needs ongoing clinical psychological treatment.[21] It would appear that the plaintiff's access to psychological treatment is limited by the fact that Medicare will only fund 10 sessions per year.

41 Ms Blumberg's expression of opinion in her report is emphatic and strongly worded. Her opinion was equally emphatic and strongly worded when she was cross-examined. My impression of her evidence was that she was troubled by the fact that the plaintiff had not had the treatment which she considered the plaintiff required and that the plaintiff was in a parlous state psychiatrically.

42 Mr Middleton put the substance of the opinion of Dr Mendelsohn, psychiatrist to Ms Blumberg. Dr Mendelsohn examined the plaintiff on 7 March 2012. He was of the opinion that the transport accident had not resulted in the plaintiff developing "any specific diagnosable mental disorder."[22] It resulted in Ms Blumberg being even more emphatic in the expression of her opinion regarding the plaintiff, and being very critical of the conclusions reached by Dr Mendelsohn as being unsound and unfounded. Indeed, when asked to comment on the opinion of Dr Mendelsohn she said "I absolutely disagree. I think that's outrageous."[23]

43 The plaintiff was examined by Dr Epstein, psychiatrist on 6 March 2008. He was of the opinion that the plaintiff had experienced symptoms of a mild post traumatic stress disorder characterised by recurrent intrusive thoughts about the transport accident; distress when reminded of it; increased concerns about her own safety and security; hypervigilance; some emotional withdrawal, and a sense of bleakness. He was also of the opinion that the plaintiff had developed a chronic adjustment disorder with depressed mood.

44 Despite Ms Blumberg's view of the opinion of Dr Mendelsohn she did agree with him on one issue, and that was, that a diagnosis of post-traumatic stress disorder and an adjustment disorder were incompatible,[24] however, she said that she could have applied the diagnostic label of adjustment disorder. She preferred not to because it did not capture the pain which was part of the plaintiff presentation.[25]

45 I accept that both Ms Blumberg and Dr Epstein found symptoms in the presentation of the plaintiff which support a diagnosis of a psychiatric condition. I do not think that the difference in diagnosis is of any critical importance. The legislature saw fit to define serious injury under paragraph (c) in a broad way to encompass the whole range of psychiatric injuries, hence the use of what I think are generic terms - "mental... behavioural disturbance or disorder".

46 It is clear enough to me that when the symptoms referred to by Ms Blumberg and Dr Epstein are compared they are very similar, and although Dr Haralambakis was rather more general in his reference to the symptoms of the psychiatric injury it seems to me that he identified very much the same sort of symptoms.

47 I prefer the evidence of Ms Blumberg, Dr Epstein and Dr Haralambakis to that of Dr Mendelson. I think that judges tend to look at a pecking order in medicine, and that the opinion of a psychiatrist is superior to that of a psychologist. However, I thought that Ms Blumberg was a very impressive witness. I thought her application to the treatment of the plaintiff was impeccable as was her evidence in explaining how she came to her diagnosis of the plaintiff's psychiatric injury. I prefer it to Dr Mendelsohn, and in any event Ms Blumberg's identification of the symptoms is supported by Dr Epstein and Dr Haralambakis which fortifies me in accepting her opinion.

48 I think it is sufficient for me to refer to the plaintiff's affidavits where she describes the psychiatric injury and the manner in which it has affected her.[26] But furthermore I accept the evidence of Ms Blumberg, Dr Epstein and Dr Haralambakis of the symptoms they elicited on examination of the plaintiff's psychiatric state.

49 I refer to the summary of those symptoms referred to in paragraphs 39 to 43 above. They are symptoms which demonstrate a major level of interference with the plaintiff's capacity to function. It is very obvious that Dr Haralambakis prescribed medication which was appropriate, but which the plaintiff could not tolerate. It left her in a difficult position where the appropriate treatment was not available to her, and it is probably no wonder why Ms Blumberg immediately recognised deterioration in her condition when she was asked to treat the plaintiff again in late 2011. The plaintiff is only able to tolerate Endep. She requires treatment according to Ms Blumberg.

50 I accept the plaintiff's evidence of the extent to which she is labouring under the burden of the symptoms of her psychiatric injury. I accept that the symptoms she described to Ms Blumberg and Dr Epstein are symptoms which plague her. I accept that she required medication to moderate her psychiatric symptoms, but can only take medication which is marginal in its impact on her symptoms. I also accept that she has deteriorated and does require psychological counselling again to moderate her psychiatric symptoms.

51 I think all of the foregoing points to the consequences of the psychiatric injury being severe. On the evidence which I accept, the consequences seem to impact upon every aspect of her daily life. It is difficult to imagine how the symptoms could be described other than being severe.

52 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law to recover damages for the claimed injuries.

53 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

[1] The plaintiff referred to the Dandenong and District Hospital in her first affidavit, but the histories in medical reports referred to the Alfred Hospital

[6] PCB 58-59. The plaintiff had further physiotherapy treatment in 2011

[8] Generally his report dated to March 2012, but particularly at PCB 72 and 74

At a glance

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Judgment (66 paragraphs)

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