Lakic v Transport Accident Commission [2012] VCC 187

County Court of Victoria|2012-02-13|Before: Mr J

**1 In this application, the plaintiff seeks leave pursuant to the provisions of the Transport Accident Act 1986 ("the Act") to commence a proceeding claiming damages for injuries suffered by her as a result of a transport accident which occurred on 15 May 2000 ("the accident").

2 In the application, the plaintiff contends that by reason of the accident she has suffered:

that the consequences of each such injury and related impairment are such as to entitle her to commence a proceeding claiming damages by reason of the accident in accordance with the provisions of the Act.

3 In the application, the plaintiff relies on affidavit evidence from herself, her husband, her son and her parish priest.[1] In addition, the parties rely upon a large body of medical evidence contained in medical reports and radiological reports tendered by them, together with DVD surveillance of the plaintiff ("the DVD") which records the plaintiff's activities on 10 September 2007 between 11.30 am and 12.30 pm and on 12 September 2007 between 11.44 am and 1.30 pm. In addition, the plaintiff, her husband, her son and the plaintiff's general practitioner, Dr Mlden Brkic, gave viva voce evidence and were cross-examined.

**4 The defendant takes issue with the nature and severity of each of the injuries and conditions the subject of the plaintiff's application. In contesting the case, Mr Curtain QC, who appeared with Mr Stanley on behalf of the defendant, adopted an approach which involved a general challenge as to the plaintiff's credit and veracity which was founded upon a comparison of the histories and statements made by the plaintiff as to her capacity for activity and the activities undertaken by her as depicted in the DVD, rather than challenging the specific statements made in the affidavits sworn by the plaintiff, her husband and her son as to the plaintiff's accident-related disability. For this reason, little purpose is served in outlining in detail the affidavit material in the proceeding.

5 Further, the defendant raises a causation issue on the basis that following the accident, the plaintiff was involved in two further transport accidents which occurred in January 2002 and September 2006. In these circumstances, the issue arises as to whether the accident continues to materially contribute to any incapacity with which she currently presents.**

The Affidavit Evidence relied upon by the Plaintiff

**6 In each of her affidavits, the plaintiff attests to the fact that, as the result of the accident, she developed severe spinal and leg pain, together with an anxiety and depressive condition which, since the accident, have:

• required her to ingest large amounts of prescription-strength medication to control her pain;

• required her to take prescription anti-depressive mediation to control her emotional state which impacted upon her such that:**

"Due to my poor sleep and poor mood I often lay in bed all day_"[2]_

**and that her life and her level of activity have been severely restricted by reason of the physical and emotional injuries suffered by her in the accident.

7 The plaintiff said that whilst her second and third accidents had exacerbated some of her symptoms, she had been, and remains, severely incapacitated by reason of the injuries sustained in the accident.

8 The plaintiff said that prior to the accident, she had worked for three years in employment with Arnott's Biscuits, which was a job which she enjoyed and intended to maintain indefinitely. She described the effect of the accident as preventing her from working in any capacity by reason of the pain and restriction of movement associated with her injury and also by reason of her fragile emotional state which involved her experiencing depression, anxiety and impaired concentration.

9 The plaintiff's statements in each of her affidavits to which I have referred above were supported unequivocally by the affidavit evidence of her husband, her son and her parish priest.**

10 In evidence-in-chief, the plaintiff described her pain as constant, but varying in severity. She said that she was required to lie down and rest every day in response to her pain but that -

"If the pain is very severe, then I have to lie down longer, only if it's shorter, the pain, then I get up earlier."

11 When asked to comment as to her movements depicted on the DVD, the plaintiff said:

"My husband asked me to climb onto that merry-go-round or whatever. I remember I was feeling a bit better. I did that despite having pain. I did have pain. I wanted to please my husband. I tried as much as he was asking me to please him."

**12 In cross-examination, the plaintiff denied suffering an injury as the result of a motor vehicle accident that occurred during 1998 and of attending Dr Brkic in March 2000 complaining of back pain. She described suffering from neck pain extending from her cervical spine to the left side of her neck and left shoulder. She said that, in the accident, she had injured the whole of her spine and her right leg and that her left arm was also very painful. The plaintiff was asked to demonstrate the extent of movement present in her neck and revealed a very limited range of neck movement.[3]

13 The plaintiff said that, over the years, her condition had deteriorated and, specifically, that the condition of her neck and lower back had, over the years, continued to get worse.[4] She accepted that she had made repeated statements to the doctors who had examined her that she had difficulty:

• using her arms, and bending and sitting.[5]

14 The plaintiff said that following her accident, the pain had never left her, but she could not recall how strong the pain was at a particular time some years ago in 2007.[6] She said that she had told Dr Chen, her treating psychiatrist, that she was unable to walk by reason of back pain and dizziness, commenting:**

A: "Yes, I think it was like that till he started giving me some tablets.

Q: That you were never stable on your legs?---

A: Very often I was not stable on my legs".[7]

15 When taken to the activities depicted in the DVD, the plaintiff accepted that the DVD depicted activities in which she had engaged on two days, namely 10 September 2007 and 12 September 2007.[8] She accepted that on 12 September 2007, she was shown in the DVD -

"... bending at that time as much as I could. I even now can bend sometimes but I can hardly straighten up after that."[9]

16 It was put to the plaintiff that when she drank from a drink bottle:

Q: "You threw your head back far, far more than you did in Court today when you raised your neck?---

A: It was my back and my neck together. It was not only my neck.

Q: No, I'm not suggesting you did. But what I'm saying is you lifted your neck far, far more than you did in Court today?---

A: Yes, it was five years ago."[10]

17 The plaintiff's husband, Zdravko Lakic, was asked whether his wife had suffered any injuries prior to the accident in 2000, to which he responded:

A: "We had a small accident, but I don't think she had any injuries.

Q: Didn't she injure her low back?---

A: She continued working normally. She didn't have big problems."[11]

Q: "You swore an affidavit in December last year?---

A: Yes.

Q: You said, 'I recall that she took her medication before we left the house'?---

A: Yes.

Q: Bearing in mind that when you swore that affidavit it was more than three years ago, are you sure you do remember that?---

A: I'm sure.

Q: What medication did she take?---

A: I'm sorry, I don't remember the tablet.

Q: What medication does she take for pain?---

A: She's taking Panamax and OxyContin when she has stronger pain.

Q: Was she taking OxyContin in 2007?---

A: I don't know because the doctors are non-stop Changing tablets."

19 The plaintiff's son, Boris Lakic, gave evidence that, notwithstanding the fact that his mother had suffered her injury when he was only eight or nine years old, he recalled that:

"We used to go [to] all the Serbian festivals and everything together. So I do remember those festivals and how she used to be active. She used to dance just as much as we did. We used to go to family parties together. So I do remember most of it."

**20 This response was given to the challenge put to Mr Lakic that, by reason of his age at the time of the plaintiff's injury, he was not in a position to give evidence as to the difference in her behaviour as a result of the accident. In the course of cross-examination, Mr Lakic said that the physical condition of his mother had become progressively worse after the second and third accidents.

21 As to the effect of the accident upon her, Mr Lakic was asked:**

Q: "I was asking because that paragraph only mentions the household tasks, is it the same with your mother's ability perhaps to dance, to socialise, to go outside, to the other matters that you've deposed to?---

A: No.

Q: Did they get progressively worse as well?---

A: They did not, no, it completely stopped when she had the first accident. She was a lot depressed after that, she didn't want to go out. Yes, she stopped, she stopped completely."[12]

22 The plaintiff's general practitioner, Dr Mlden Brkic, attended for cross-examination, in the course of which he was taken to a statement made by him in a medical report as to the behaviour of the plaintiff, as depicted in the DVD, in which he commented that:

"There is nothing that I saw that is different to Mrs Lakic's behaviour when I see her during the consultations in my surgery."

Q: "So that the range of movement she demonstrated on the DVD is the same as the range of movement she has demonstrated to you in the surgery?---

A: Well, I don't get my patient to go onto a swing or a maypole in my surgery.

Q: I'm sure his Honour understands that?---

A: Yes, I can't really from my opinion from watching the video, it's a passive movement to sit on a swing and be swung and to stand on a maypole and be turned around. ...

Q: In your statement - let me ask you the question, you say there is nothing that you saw in the DVD different to her behaviour when you see her during consultations in your surgery?---

A: Of course, but over a period of twelve years I think that a person would be able to do that procedure that was demonstrated on the video for a few seconds or thirty seconds. It doesn't necessarily mean that they can do it - all those movements constantly every day all through the day.

Q: My learned friend will correct me if I'm wrong, but the burden of Mrs Lakic's evidence and her statements to doctors over the last twelve years has been to the effect that she is grossly limited in all movements by pain, not by doing them for a few seconds, but by the capacity to do them being limited at all by pain?---

A: Absolutely.

Q: That's what she said to you over the years?---

A: Correct.

Q: That's what you've reported time after time?---

A: Yes.

Q: And yet she can still walk and she can still sit?---

A: Yes.

Q: Yes?---

A: So she's physically capable of going up onto a maypole."[13]

24 Dr Brkic was cross-examined as to the gait of the plaintiff during the walking which was depicted in the DVD, and commented:

A: "Well, at no stage was she hurrying or running across the road and it looked like she was supported by her husband.

Q: Well, when she was walking across the road, for example, she wasn't supported by her husband, was she?--

A: It would be difficult to walk across the road hand in hand or being supported by her husband.

Q: Is that right? Are you saying it's difficult to walk across the road hand in hand?---

A: Well, it isn't, but I mean watching the traffic. But for a good deal of that though she was supported by her husband, the walking, which was slow." [14]

**25 Dr Brkic accepted that the plaintiff had never exhibited to him the freedom of movement of her right arm or the capacity to extend her back or to extend her neck that was revealed in the DVD.[15] He conceded that whilst it was his opinion that, while seated on the swing, the plaintiff was not engaged in vigorous muscle movements, he may have overstated the situation when describing that activity in his medical report as "very passive and involving very little active muscle movement".

Q: "You see, it's possible that she's been exaggerating her symptoms for financial gain, isn't it?---

A: I do not believe so.

Q: It's possible, isn't it?---

A: No.

Q: Just as the - it's not possible?---

A: I don't believe so. I've known this patient for twelve years.

Q: Just as the episode on the maypole could have been terminated possibly because of vertigo. You don't accept that it's possible that she's been exaggerating her symptoms for financial gain?---

A: Well, I've seen her for twelve years on a monthly basis. This is a 3-minute video."[16]

27 In re-examination, Dr Brkic was asked the question:

Q: "It's been put to you that you're saying the things you're saying because you're supporting your patient in this case. What do you say about your opinion about her genuineness?---

A: Well, as I said, I've seen her on a regular basis for twelve years and, yes, she is a very difficult patient to treat and the pain has been unresponsive to conventional therapy and she has had rehabilitation programs, hydrotherapy, physiotherapy and this has shown very little improvement. In fact, over the last twelve months her psychiatric condition has deteriorated, symptoms of Post-traumatic Stress Disorder, flashbacks, depression. She's just failed to, not stabilise, she has got worse.

Q: Has anything that has been put to you in seeing the video again Changed the opinion you express as to her incapacity for work both because of her physical condition?---

A: No, I wouldn't Change my opinion, no.

Q: Or because of her psychological condition?---

A: Well, as I said before, her psychological condition has got much worse."[17]

**28 The position of the defendant as to each of the impairments relied upon by the plaintiff in this proceeding is that the effect of the DVD is to impugn the plaintiff's credit to such an extent that it undermines all of the lay evidence and medical evidence relied upon by the plaintiff which attests to the severity of her accident-related impairments such as to make that evidence unpersuasive.

• within a playground on 10 September 2007 for a period of approximately one hour; and

• within a picnic area on 12 September 2007 for approximately twenty minutes.

30 Whilst in my opinion the DVD does not reveal the plaintiff to engage in unrestricted or strenuous physical activity, it clearly depicts the plaintiff as being capable of engaging in activity which is inconsistent with the repeated statements made by her as to her physical capacity:

(ii) to her treating doctors and the many consultants who have examined her for the purposes of this proceeding.

31 Given the relatively contemporaneous timing between the DVD and:

(ii) the plaintiff's assessments by Dr Leslie Chen, Mr Michael Shannon, Dr Nicholas Ingram[18]

and the statements made by the plaintiff as to the level of her capacity for activity at those times,[19] I am of the opinion that the physical activity in which the plaintiff engages as depicted in the DVD must call into question the accuracy of both:

• the histories provided by the plaintiff to medical practitioners at about the time the DVD was taken.**

The Claim by the Plaintiff that she Suffers a Severe Long-term Mental or Behavioural Disturbance or Disorder

Causation of the Plaintiff's Psychiatric Condition

**32 The relationship between the accident and the psychiatric illness with which the plaintiff presents was the subject of the following evidence:

"It is my opinion that the symptoms of Post-Traumatic Stress Disorders Mrs Bogdanka Lakic suffers from largely arise from the first motor vehicle accident she was involved in on 15 May 2000."[20]

(ii) Dr Michael Piperoglou - report dated 27 January 2012:

"The cause of her injuries from the psychiatric point of view is the motor vehicle accident on 15 May 2000. Subsequent motor vehicle accidents may have exacerbated the symptoms."

(iii) Dr M J Nathar - report dated 9 December 2003:

"Her psychiatric illness is consistent as having in the majority arisen from the first accident, aggravated by the second accident."[21]

(iv) Dr Albert Kaplan - report dated 10 May 2010:

"It is difficult to apportion Mrs Lakic's psychiatric conditions between each of her motor vehicle accidents. Bearing this in mind, I would estimate that the first accident on 15 May 2000 is responsible for half of her psychiatric conditions, whereas the two subsequent motor vehicle accidents are each responsible for a quarter of her conditions."

(v) Dr Nicholas Ingram - report dated 11 June 2010:

` "I would now suggest that approximately 70 per cent of her symptoms are related to the first accident, with the other 30 per cent being equally divided between the second and third accidents."

33 Given the uniformity of medical opinion upon this issue, I am satisfied that the plaintiff has established that the motor vehicle accident of 15 May 2000 is the primary cause of the psychiatric illness with which she currently presents.

The Severity of the Plaintiff's Psychiatric Condition

34 The medical evidence relied upon by the plaintiff with respect to this aspect of her claim may be summarised as follows:

(i) In the series of medical reports, concluding with the report dated 17 November 2011, the plaintiff's general practitioner, Dr Brkic, opines:

"The psychological effects of Mrs Lakic's injuries have been most profound. She suffers from severe secondary anxiety-depressive illness as a result of her Chronic Pain Syndrome and requires large doses of psychotropic medication in the form of antidepressant medication, anxiolytic medication, centrally acting pain mediating medication and nocturnal sedatives. The psychological sequelae of her motor vehicle accident alone prevent her from remaining in any meaningful employment such is their severity.

The psychological effects of Mrs Lakic's injuries have severely impinged upon her social, recreational and domestic activities. I understand that she has an extremely limited social life now as a result of the motor vehicle accident and performs very few, if no, domestic chores at home, these being performed by her children and spouse. As such, her life has completely Changed as the result of this motor vehicle accident."[22]

(ii) In a report dated 9 December 2003, Dr M J Nathar, a consulting psychiatrist, diagnosed the plaintiff as presenting with a:

"Post traumatic stress disorder and car driving phobic anxiety and passenger anxiety, with major depressive reaction from first accident exacerbated by the second accident."[23]

"Her psychiatric illness is consistent as having in the majority arisen from the first accident, aggravated by the second accident.

...

I believe she is totally unemployable due to a combination of her severe psychiatric illness plus her physical problems and this may well be on a permanent basis unless there is some major improvement over the next few years."[24]

(iii) In a report dated 10 May 2010, Dr A Kaplan, a consulting psychiatrist, opined:

"Mrs Lakic's psychiatric condition and, in particular, her Post-Traumatic Stress Disorder and Pain Disorder, probably renders her incapable of undertaking any employment. Her psychiatric condition has and is likely to continue to have a major impact upon her ability to engage in her normal social, recreational and domestic activities.

It is difficult to apportion Mrs Lakic's psychiatric conditions between each of her motor vehicle accidents. Bearing this in mind, I would estimate that the first accident on the 15th May 2000 is responsible for half of her psychiatric conditions, whereas the two subsequent motor vehicles accidents are each responsible for a quarter of her conditions."[25]

In a report dated 29 September 2011, Dr Kaplan, opined:

"Mrs Lakic continues to suffer from a Post-Traumatic Stress Disorder and this condition has not improved since I last examined her. ... Her anxiety and depression are still partly related to her Post-Traumatic Stress Disorder. The prognosis of her condition is unfavourable and is likely to persist for the foreseeable future.

Mrs Lakic continues to suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and associated panic attacks.

...

Mrs Lakic's capacity, from a psychiatric point of view, for employment and the impact of her psychiatric condition upon her ability to engage in her normal social, recreation and domestic activities remains as described in my earlier report. These effects are related to her psychiatric conditions and are separate from the effects of her physical injuries."[26]

In a further report dated 12 December 2011, Dr Kaplan opined further as to the plaintiff's condition, having had access to the DVD, and commented:

"I have previously examined Mrs Lakic, at your request, on the 7th May 2010 and the 27th September 2011 and following those examinations I prepared psychiatric reports dated 10th May, 2010 and 29th September, 2011. My opinions as detailed in those reports remain unchanged."[27]

(iv) Dr Leslie Chen, a consulting psychiatrist, had been involved in the plaintiff's psychiatric treatment and management since 30 May 2005. In a report dated 4 April 2008, after having seen the DVD, Dr Chen opined:

"I informed her that in view of what she mentioned on 31.3.08 and the evidence presented by the DVD, I must say she was not as disabled as she described in the past at least in some aspects of her life granted that she could have a good or better day some of the time and the DD (sic) could have been taken on a day she did not feel as bad. However, she did appear quite normal on the DVD unless one was aware of her background history."[28]

Notwithstanding these comments, at the time at which he authored the above report, Dr Chen assessed the plaintiff as being "still unemployable".[29]

(v) Dr Nicholas Ingram, a consulting psychiatrist retained on behalf of the defendant, has assessed the plaintiff on a number of occasions between February 2007 and June 2010. In a report dated 27 October 2009, Dr Ingram was asked to take into account the DVD when assessing the severity of any psychiatric illness with which the plaintiff presented. Dr Ingram assessed the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood and associated Panic Disorder, and opined:

"Mrs Lakic presents in much the same way as she did when I assessed her two years previously, except that she now complains of intermittent chest pain associated with difficulty in catching her breath and palpitations. This is highly suggestive of the development of panic attacks and I now think she has a panic disorder as well as her depression. She also continues to have symptoms of a post traumatic stress disorder.

The difficulty in making a diagnosis with Mrs Lakic is the fact that the video, which I have previously commented on, seems to show her moving more freely than she had indicated was the case, as well as her being more animated than she had been in my previous assessment and also in the assessment today.

...

Nevertheless, even despite this video Mrs Lakic still gives a fairly good history of depressive and anxiety symptoms, as well as PTSD symptoms, and as I said in my previous letter, unless there is evidence that she always moved as freely as indicated in the video, then I still think there is some significant psychiatric impairment present, though perhaps not as severe as at my initial assessment.

I think she is still incapacitated from work, not only from a physical perspective but also from a psychiatric prospective (sic) and I think it is unlikely that she will be able to return to work in the foreseeable future. ...

I also feel that Mrs Lakic's psychiatric problems significantly interfere with her domestic and leisure activities, as, assuming her description is accurate, she has a very limited life."[30]

Although Dr Ingram authored further reports in June 2010, he did not demur from the opinion previously expressed by him in October 2009, commenting on 11 June 2010 that the bulk of the plaintiff's psychiatric symptoms were related to the 2000 accident, and on 20 June 2010, that the pattern of the plaintiff's prescriptions suggested that she continued to be fairly chronically depressed following her involvement in her accidents.

(vi) In a report dated 27 January 2012, Dr Michael Piperoglou, a consulting psychiatrist who commenced management of the plaintiff's psychiatric condition on 10 October 2011, opined:

"From the psychiatric point of view, Mrs Lakic is suffering from the residual symptoms of post traumatic stress disorder.

She also has a mixed anxiety/depressive disorder enmeshed in the post traumatic stress symptoms.

In my opinion, as a result of this lady's psychiatric injuries alone, she is incapacitated for her pre-injury employment. It should also be remembered that she is a poor rehabilitation prospect taking into account her age, work history, job skills, limited education and poor command of English.

The psychological reaction is not only significant in its own right in adversely affecting her ability to work but would also be worsening any incapacity she has from the purely physical point of view.

From the psychiatric point of view, there has been a significant adverse impact on the quality of her life in all spheres (personal, domestic, vocation, social/leisure as well as in some basic activities of daily living).

In my opinion, this adverse effect on her enjoyment of life is permanent.

My findings are made in consideration of Mrs Lakic's psychological contribution to her injuries being considered separately for (sic) any physical injury."

**35 I am of the opinion that, whilst in certain circumstances, activities revealed by surveillance film may conclusively establish a position which is fatal to an application of this type,[31] there would be relatively few instances where surveillance footage as to activity would speak definitively upon the severity or otherwise of a psychiatric illness.

36 In the present case, each of the medical practitioners who have opined as to the severity of the plaintiff's psychiatric illness, with the exception of:

(i) Dr Nathar, who has not seen the plaintiff since December 2003 (and whose report, in these circumstances, while attesting to the severity of the plaintiff's illness at that time, is of little assistance in the task required of me, which is to assess the severity of the condition at the present time);

(ii) Dr Piperoglou, who has relatively recently taken over the management of the plaintiff's psychiatric illness;

have opined as to the severity of that condition after having considered and taken into account the activity by the plaintiff as depicted in the DVD .

37 The opinions of each of these psychiatrists (who include the plaintiff's treating psychiatrists and consulting psychiatrist retained to express opinions by both the plaintiff and the defendant), which support the plaintiff's position that the severity of her psychiatric condition is such as to render her unemployable and have a significantly adverse impact upon her life, have not been challenged in cross-examination.

38 In my opinion it could not be said that the expert opinions expressed by the psychiatrists who have seen the DVD are undermined by the content of the DVD, in circumstances in which the plaintiff's behaviour and activities as depicted in the DVD have been taken into account by those experts in expressing their opinions as to the level of the plaintiff's incapacity.

39 This is particularly so in circumstances in which I take the view that the position expressed by Dr Chen (that the plaintiff appeared quite normal on the DVD,)[32] and Dr Ingram (that the DVD revealed the plaintiff to be moving quite freely, apparently enjoying herself and taking an interest in what was going on around her),[33] represent overstatements of the impression I formed as to the plaintiff's demeanour as depicted in the DVD; and accordingly that it cannot be said that these medical practitioners have applied an analysis to the DVD which was inappropriately favourable to the plaintiff and that their continuing support of the plaintiff's position is undermined for that reason.

40 The weight which I give to the opinion expressed by Dr Piperoglou as to the severity of the plaintiff's illness must be undermined to some extent by the fact that it was expressed without Dr Piperoglou having had access to the DVD. That Dr Ingram, Dr Chen and Dr Kaplan, having seen the DVD, have expressed the view that the plaintiff's psychiatric condition:

(ii) is of such severity as to preclude the plaintiff from employment;

suggests however, that the activities undertaken by the plaintiff in the DVD may have little impact upon the issue as to whether the plaintiff is suffering from a severe and largely incapacitating psychiatric illness when that issue is analysed from the perspective of a trained psychiatric expert. For this reason, I am not satisfied that had Dr Piperoglou seen the DVD, this would have necessarily caused him to alter the opinion expressed by him. Accordingly, whilst I am of the opinion that the fact that Dr Piperoglou has not seen the DVD diminishes the weight which I should apply to his opinion, it does not make his support for the plaintiff's case irrelevant.

41 I accept the position put on behalf of the defendant that Dr Brkic, in opining as to nature of, and relevance of, the activity undertaken by the plaintiff in the DVD, adopted a position in which he tended to support his patient and that his opinion evidence is devalued accordingly.

42 That is not to say however that I accept that I should give Dr Brkic's evidence little or no weight. Dr Brkic has managed the plaintiff's medical condition for over twelve years. In my opinion:

(i) the opportunity that Dr Brkic has had to assess the consistency of the plaintiff's presentation during this period;

(ii) that Dr Brkic's opinion that the severity of the plaintiff's psychiatric illness is such that it renders her unemployable and has a seriously deleterious effect upon her day-to-day life, is echoed by the opinions of each of the psychiatrists;

lends credence to the opinion expressed by him such that whilst the weight given to it may be diminished, the support which the opinion provides to the plaintiff's case should not be ignored.

43 Further, I found the plaintiff's son to be an impressive witness. In my opinion, his evidence as to the change which he noticed in his mother's personality and tendency to socialise gives further weight to the evidence of the experts as to severity of the plaintiff's psychiatric injury, as does the unchallenged evidence of Cedomir Videkanic.[34]

44 I am impressed by what I consider to be a striking unanimity in the medical evidence and particularly the opinions of each of the specialist psychiatrists who have opined as to the severity of the plaintiff's psychiatric illness in this matter.

45 Having seen the DVD, and having considered the opinions expressed by the specialist psychiatrists, together with the other evidence to which I have referred, I am satisfied that the activity undertaken by the plaintiff as depicted in the DVD should not dissuade me from accepting as persuasive the positions put by them.

46 In the circumstances, I am satisfied that the plaintiff presents with a psychiatric illness which has and will continue for the indefinite future to preclude her from employment and impose severe restrictions upon her life, and that this condition is appropriately characterised as being a severe long-term mental or behavioural disturbance or disorder in accordance with the meaning of that term as employed by the Act.

47 Having made these findings, I am satisfied that the plaintiff is entitled to the leave which she seeks in this proceeding and I find it unnecessary to consider whether or not the injury to the plaintiff's cervical spine and right shoulder in themselves give rise to impairments which might be considered to be "serious" within the meaning of that term as employed.

48 I will hear the parties as to the orders which should be made in the proceeding.

[1] Joint Court Book ("JCB") pages 11- 58.2

[3] Whilst there is clearly a discrepancy between the range of movement demonstrated by the plaintiff in the witness box and that exhibited by her in the course of the DVD, I do not find the difference telling when regard is taken of the fact that the Court room is a strange environment for the plaintiff and one which she was likely to perceive as being hostile, particularly during the process of cross-examination.

[18] Each of whom assessed the plaintiff in September 2007.

[19] These statements paint a picture of the plaintiff's level of physical disability being such that she had difficulty in managing the most basic aspects of daily life, including walking: see the history obtained by Dr Chen on 25 September 2007 at JCB 206.

[20] I note that in his earlier report dated 25 September 2007, Dr Chen had apportioned the plaintiff's psychiatric impairment which he assessed as being 50 per cent as being caused in the following proportions: 10 per cent due to the first accident, 20 per cent due to the second accident and 30 per cent due to the third accident, but that he revised his position in this regard in his report dated 7 March 2008.

[21] The opinion of Dr Nathar, of course, does not take into account the involvement by the plaintiff in the accident of September 2006, and the weight which I apply to it as to the issue of causation is accordingly diminished.

[31] An example being a DVD which revealed a person claiming to have a frozen shoulder which did not allow any movement of the shoulder or arm, to demonstrate the presence of a full and unrestricted range of movement of the shoulder and arm, as was put by Mr Curtain QC.

[34] JCB 53-54.2 Who described the effect of accident as causing the plaintiff to be a shadow of her former self.

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