Aikin v Transport Accident Commission
[2016] VCC 1207
•23 August 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03615
| CONRAD AIKIN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August 2016 | |
DATE OF JUDGMENT: | 23 August 2016 (Revised) | |
CASE MAY BE CITED AS: | Aikin v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1207 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – psychiatric impairment
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Katanas v Transport Accident Commission [2016] VSCA 140; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mason v Transport Accident Commission [2014] VSCA 267
Judgment: Leave granted to bring proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Slater & Gordon |
| For the Defendant | Mr S A O’Meara QC with Ms B Myers | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for a psychiatric condition suffered by him arising out of a transport accident in which his wife, Doune, was killed on 8 July 2011 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described at least “very considerable” and more than “significant” or “marked”.[1]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
4 The plaintiff brought this application pursuant to Section 93 (17) (c) claiming to have suffered a severe long term mental or severe long term behavioural disturbance or disorder.
5 The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”. Brooking JA held, at [846], having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[2][1998] 3 VR 833
[3](1995) 21 MVR 314
6 Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in that Act: see also Phillips JA at [858] and Charles JA at [860] to [861] to similar effect.
[4]Mobilio v Balliotis (supra)
7 The plaintiff swore three affidavits and was cross-examined. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is aged fifty-three, having been born in March 1963. He presently lives with his partner, Morag, and their seven-month-old baby son.
9 As at the said date, the plaintiff’s late wife, Doune, was aged forty-eight and employed as a social worker. She and the plaintiff had been happily married for nearly twenty-five years, having lived together for four years previously. She was the love of the plaintiff’s life. They had two children: Claire, born 1991, and Boyd, born 1994.
10 The plaintiff agreed in cross-examination that he had three-and-a-half years’ psychiatric-psychological treatment for matrimonial problems before the accident. However, he disagreed that he was very unhappy at that time. Over time, he had had some concerns about where his marriage was going.[5]
[5]Transcript (“T”) 8
11 The plaintiff had seen a psychologist, Don Watson, from the middle of 2007. Doune had been seeing psychiatrist, Dr Vail, and she and the plaintiff were also seeing a marital therapist.[6] The plaintiff had also seen psychologist, Dr Norris, before the accident, with anxiety and relationship issues. He had some real questions about leaving Doune but he did not have major anxiety at that time.[7]
[6]T8
[7]T9. There was no mention of pre-accident treatment in the plaintiff’s affidavits
12 The plaintiff agreed he had also seen Dr Sheehan, psychiatrist, thirty-one times between March and November 2010 because he was dissatisfied with Doune and infatuated with a former colleague. He had used the words “happy married” in his affidavit because he was looking at the whole of his twenty-five-year marriage which was very happy over that time.[8]
[8]T10
13 In the eight months or so after he had finished marriage counselling and before the accident, the plaintiff‘s marriage was “fantastic”.[9]
[9]T43
14 On the said date, Doune was driving a motor vehicle along the Goulburn Valley Highway at Molesworth when another vehicle veered onto the incorrect side of the road, colliding head-on with her vehicle. As a result of the collision, Doune suffered fatal injuries (“the accident”).
15 At the time of the accident, the plaintiff was working in Melbourne. The police attended his worksite and advised him of Doune’s death. He had to inform Claire, which was the most difficult thing he had ever had to do. Boyd had already been told of Doune’s death.
16 Subsequently, the plaintiff attended the funeral parlour to view Doune. It was most distressing seeing her, particularly observing the damage to her body, and what appeared to be a grimace on her face.
17 As a result of psychological injury, nervous shock and grief reaction, the plaintiff sought treatment initially from Dr Norris on 4 October 2011 and saw her until March 2013 for grief counselling and strategies.
18 When he first saw Dr Norris after the accident, the plaintiff would have been experiencing anxiety and sleep problems and he could not focus on things. He had very little memory of anything at that time. He agreed there was some improvement with her treatment.[10]
[10]T12
19 In October 2012, the plaintiff attended Dr List, a consultant psychologist, whom he only saw about three times, because he did not think he was making much progress. The plaintiff then had some major issues. He was concerned, about being able to work with his clients.[11] There were big questions about what he would be able to do at work then and in the future and how much work he could do.[12]
[11]T17
[12]T18
20 From 2013 to the present, the plaintiff has received treatment from clinical psychologist Dr Eramo. In some ways her treatment has helped over that time. She has discussed mindfulness techniques with the plaintiff but he found that technique very difficult. He did not think it had helped a “hell of a lot” because he could not actually hold his thoughts together well. Antidepressants have not been prescribed.[13]
[13]T19
Work
21 Having completed Year 12, the plaintiff completed an Arts degree at Melbourne University and then became qualified to practise as a psychologist.
22 Since 2002, the plaintiff has been employed as a psychologist by the Victorian Foundation for Survivors of Torture (“the Foundation”). He commenced worked there on a sessional basis in 1999, and for the six years prior to the said date, was in a senior role providing services directly to clients as the Senior Counsellor Advocate.
23 In addition, pre accident, the plaintiff conducted a part-time private practice from rooms in Carlton. He generally worked four days a week for the Foundation, and a day-and-a-half, sometimes two days, each week in private practice, generally working 45 to 50 hours each week.
24 The plaintiff denied it was a bit of an exaggeration to say he was working these hours. His work also involved a lot of administrative tasks and also reading and writing reports.[14]
[14]T19
25 As a result of his accident-related psychological injury, the plaintiff was absent from work for three months. He resumed work on a part-time basis at the Foundation, increasing to three days a week, but ceased seeing patients privately.
26 When he returned to work for the Foundation, the plaintiff was unable to undertake face-to-face counselling that he had done previously, working with refugees who typically had been subjected to horrific incidents on occasions. He could cope with this work before the accident, and other confronting types of situations, and had developed an ability to interact and empathise with such clients, hence his appointment to a senior professional role in about 2005.
27 This work was much more fulfilling than any the plaintiff had ever done, and he derived substantial professional and immense personal satisfaction from it. He profoundly enjoyed his work and it meant a huge amount to him.[15]
[15]T40
28 Since the accident, the plaintiff had been simply unable to undertake that sort of work. He had restricted client contact over the first year back at the Foundation, and since then had been working as a trainer/educator three days each week, but also doing some separate work in secondary roles, not requiring direct client contact.
29 The plaintiff tried to resume seeing clients at the Foundation on a restricted basis, doing short assessments to determine their eligibility and to assess their psychological needs. However, his client contact was short term and he was not responsible for treatment or counselling and he was unable to continue even with that limited contact.[16]
[16]T15
30 Before the accident, the plaintiff did everything from the initial client assessment through to the full assessment together with ongoing trauma counselling over months, frequently with the same client. When he tried to go back to this type of work in 2012, part of him enjoyed it as it was client contact, but he needed to have significant breaks between seeing clients, thus reducing his capacity to a functioning member of the team.
31 The plaintiff was unable to be “100 per cent tuned in” to clients, and hearing what they had to say. Talking with his manager and thinking about it himself, he thought his client assessments would have been compromised. He was not getting the full information he needed and was not responding to clients’ needs. He thought he was doing half of what he should have been doing and his manager thought he was only doing 20 to 30 per cent.[17]
[17]T41
32 The plaintiff’s pre-injury duties required a high degree of emotional resilience and as a counsellor he had to be able to put aside his own emotional needs and focus fully on the client and respond accordingly. The plaintiff is no longer able to adequately provide this counselling “space” for clients.
33 The relationship with clients was also therapeutic, with the client necessarily for a time being dependent on the counsellor. Before the plaintiff was severely affected by Doune’s death, he was fully capable of managing such therapeutic relationships. Now the thought of this role is overwhelming, and he is unable to cope with the interpersonal demands of such counselling work.
34 The plaintiff has no professional interest in working with clients not recovering from severe trauma, and the lack of fulfilment is a constant reminder of what he is not able to do but still wishes he could do. Doune’s death has made it impossible for him to empathise with a client’s position.
35 The plaintiff’s former work had been very specific in the skills involved in dealing with people whose trauma was often severe and complex. He now could not cope with having to listen to someone tell him they were tortured or involved in some other dreadful situation. He could not return to a role where listening to this level of traumatic disclosure was an expected part of the work. Not only would that be harmful to him, but he believed it would be unethical for him to do so.
36 The plaintiff’s treaters recommended he relinquish ongoing client work, with the final decision being made by him at the end of 2012. By that time, the plaintiff was not being able to manage one or two client appointments per day, and his productivity was significantly less than 50 per cent, and he had been unable to resume anything like full-time work.
37 In 2012, the plaintiff was hopeful of a return to his pre-accident duties. He increased his hours at work and had started doing some client work over that time but not seeing any private patients.[18] He agreed that in May 2012 Dr Stanton certified the plaintiff as fit to do assessments and grief counselling. He also agreed Dr Stanton thought he would be able to resume long-term psychotherapy after two years. That was the plaintiff’s plan and absolutely what he was trying to do.[19]
[18]T14
[19]T16
38 The plaintiff negotiated into a training role at the Foundation for three days a week.[20] He was hopeful about going back to counselling. He was not looking to make a permanent change to a different role when he started the training work but he needed to do something and negotiated that as a possibility.[21]
[20]T15
[21]T38
39 The plaintiff denied he had not tried counselling since 2012 because he made a career change to go into training. He needed to work and wanted to do so. The option was there and he went for it.[22]
[22]T34
40 There was some training work in the plaintiff’s pre-accident role, having developed some training plans. So, in a sense, he went back to what he had previously done and tried to make as much of that as possible.[23]
[23]T42
41 The plaintiff has maintained his registration as a psychologist. In the registration application form, the plaintiff set out that he had no impairment undertaking his work as a psychologist. He had sought legal advice as to how he should complete the form and there was no room on that document to explain his situation. Whilst his registration enabled to him to do counselling, the plaintiff was not “ethically” allowed to do so. He thought he would hang on to the hope going back to work as a counsellor.[24]
[24]T24
42 The plaintiff disagreed that with what was happening in his life, with a new partner and baby, that it was easier for him to work in a training role. It is however much easier for him to do this type of work in terms of his current ability. He wanted to work as much as he could.[25]
[25]T39
43 If treatment would help the plaintiff go back to counselling, that would be great. He hoped he would be able to do more work privately but had not been able to do so and he did not think he had the necessary capacity. He has not tested working an extra day at the Foundation. He has been doing as much as he can and cannot do any more.[26]
[26]T39
44 The plaintiff’s memory and concentration would be significantly worse if he was working an extra day and problems in that regard stop him doing so.[27] It would become unmanageable as working an extra day, he would find it even harder to focus and read and write up his work and remember conversations. He copes with training work with which he is familiar but he struggles to keep track of new things. He would be eased out of the Foundation or he would have to leave it if he had to work an extra day.[28]
[27]T26
[28]T43
45 By late 2011 or early 2012, in his different role at the Foundation working only three days a week, the plaintiff’s salary was about $50,000 a year compared to $80,000 he was earning pre-accident. As a result of his injury, he had lost income of approximately $25,000 net per annum indefinitely.
46 In addition to his work at the Foundation, the plaintiff now does some separate counselling work over two half-days where he provides advice and training to volunteer mentors about their mentoring partnerships with refugees. In that role, he sits down with them as a group and talks about the progress of their partnerships with young people from refugee backgrounds. There is some teaching involved in this role.[29]
[29]T16
47 The plaintiff feels unfulfilled in his current work roles. He enjoys his current work somewhat, and it is better than not working.[30]
[30]T42
48 The two main reasons the plaintiff has not been able to return to private practice are that he has no confidence in his ability to screen out clients who have experienced significant trauma, and secondly, he has found private practice to be professionally isolating, and he believes he would suffer without the availability of support around him.
49 The plaintiff’s practice essentially runs at a loss or break-even point after deduction of expenses. The plaintiff agreed he would be saving money if he closed down his private practice; however, he had really been trying to develop his private work and had been maintaining some hope.[31]
[31]T37
Other consequences
50 The plaintiff deposed in March 2015, that his short-term memory and concentration problems limited his capacity for his current work role. He often forgot all sorts of things, which made it difficult to work on projects such as developing new training programs. He became restless very easily, and his mind wandered when he tried to read or focus on a work task. He could not cope with ongoing projects very well, and others at work had to make allowances for his reduced productivity.
51 The plaintiff believed Doune’s death and its aftermath had adversely affected his relationships. He had lost his closest friend, who essentially gave up on him, and other friendships had ended, because he had become, he thought, so self-absorbed and not interested in others.
52 The loss of friendships had added to the plaintiff’s experience of loss because his friends were so important to him. He now needed friends more than ever, and suffered as a result of them no longer being there. Many of the lost friendships were with people who were close to Doune, and the ending of those relationships has also meant a severing of living connections to her and his memory of her.
53 The plaintiff’s relationship as of March 2015 was impacted negatively by the way he had been affected by Doune’s death. He thought the relationship was not balanced, because he could not adequately reciprocate the support Morag provided to him.
54 The plaintiff confirmed his relationship with Morag, started earlier in 2012. He underwent a reverse vasectomy and they had a baby at the end of last year. They moved in together about two years ago and bought a house last year.[32]
[32]T22
55 The plaintiff told Professor Doherty this relationship was very good; however, the plaintiff was concerned about how he was in the relationship.[33]
[33]T27
56 As of March 2015, the plaintiff was far more aware of the possibility of his own death, and thought about that generally, and in particular when on the roads. Those thoughts interfered with him being able to fulfil his role as a partner and father, and being scared used up his energy.
57 The plaintiff worried about people close to him being killed in a car accident, and those preoccupations interfered especially with his relationship with his children, constantly checking with them that they are safe and will act safely. That situation caused conflict with them and made it difficult to be with them and provide them needed support.
58 The plaintiff’s generally heightened anxiety meant he was unable to provide emotional support to his children in the way he believed he should, and they needed him more now that they have no mother, but he was less able to provide support since her death.
January 2016 affidavit
59 The plaintiff has ongoing problems concentrating, reading, and retaining information; skills that were so important in his relationship and personal life. The problems are very specific, in that he has trouble recalling details from discussions he has had the same or previous days, or whether he had the discussion at all, which makes it very hard to manage project work and also professional and personal relationships. On more than one occasion, he has forgotten that a friend’s parent had died recently.
60 These problems with concentration and memory have had a significant effect on the plaintiff’s ability to do counselling, and he is over-reliant on taking notes, which makes the counselling interaction highly formalised and therapeutically ineffective. He continues to have trouble remembering details when he reads, and he needs to read and re-read anything with any degree of complexity and detail. He loses his train of thought and is often unable to retrace it.
61 These problems have a major effect on the plaintiff’s ability to conduct himself at work and in personal relationships.
62 The plaintiff finds it hard to hold onto his thoughts, losing track of what he has just read. He can write brief emails and similar things, but he has to go very slowly and go back over things. He cannot string his thoughts together with any sort of complexity with what he is trying to write. These difficulties would be up there as one of his major limitations at work.[34]
[34]T25
63 The plaintiff now works five times as hard to manage his relationships with people in his life.
64 The plaintiff does not have much ability to support his partner, Morag, and has concerns for her and his ability to pay attention to her needs. He thinks he still spends a lot of time “just managing stuff” himself.[35]
[35]T40
65 Feeling fatigued most of the time and utterly exhausted after two or three days’ work has been an issue ever since Doune’s death.
66 The plaintiff continues to have horrible dreams, which tend to happen when he has been thinking or talking about Doune during the day. Although he might have had a pleasant thought to start with, the plaintiff often ends up thinking of Doune’s death and of something similar happening to his family members. While he would love to be able to talk about Doune and their pleasant memories, he avoids this for fear of consequences, and especially tries to avoid thinking about her at night when he is lying asleep, because he is worried these thoughts will lead to dreams.
Other health issues
67 The plaintiff was recently diagnosed by rheumatologist, Professor Lim, with mild seronegative inflammatory arthritis and had been prescribed medication for that condition.
68 In the four years since Doune’s death until the first half of 2015, the plaintiff had only taken non-steroidal anti-inflammatory medication for forty-six weeks. He had occasional neck and shoulder pain over that time, treated with physiotherapy and massage.
69 Early in 2015, the plaintiff developed pain and swelling in his right foot and was seen by Professor Lim. The fatigue the plaintiff currently experiences was already a problem for him, well before being prescribed the medication to treat his arthritic condition.
70 The plaintiff has had the arthritic condition since adolescence. It was worse when he was eighteen. Ankylosing spondylitis was diagnosed when he was nineteen and confirmed when he was twenty-three.[36]
[36]T30
71 At no time over his life, including when it was at its worst, has the plaintiff had problems with fatigue in the way he has since Doune died.
72 The plaintiff had problems with back pain on and off. He agreed he attended Dr Stanton with a flare up of back pain in February 2014 and a non-steroidal anti-inflammatory was prescribed.
73 The plaintiff was prescribed Methotrexate and Prednisolone last year. He still takes the former for inflammatory arthritis and for his sore ankle.[37]
[37]T31
74 The plaintiff has had pain in different parts of his body but not all at the same time. His pain has not affected his memory and concentration, tiredness and ability to do things.[38]
[38]T33
75 The plaintiff was referred to a sleep disorder specialist in late 2014. After relevant testing, he was fitted with a mandibular advancement splint. This has resulted in his sleep apnoea having almost completely resolved.
76 Even when he sleeps for six hours or more, the plaintiff still feels tired the next day. The sleep specialist has told him the sleep study showed that in effect even when his body was asleep his brain did not sleep properly. He was advised that while he sleeps, part of his brain continues to send signals to his brain to remain on alert.
77 The plaintiff agreed when he was referred to Dr Cunnington in August 2014, he told him of a twenty-year history of snoring. He last saw Dr Cunnington two or three months ago.[39]
[39]T30
78 The plaintiff may have seen an ear, nose and throat specialist in 2008.[40]
[40]T28
79 The plaintiff wears the splint nightly. It reduces his snoring a bit, but his sleep symptoms have not changed much. He still has problems sleeping.[41]
[41]T29
80 The plaintiff agreed he did not mention sleep apnoea or spondylitis in his first affidavit. He did not think that sleep apnoea affected his memory and concentration or made him tired. Sleep apnoea is not really a problem anymore. It was diagnosed and treated.[42]
[42]T32
81 The plaintiff swore a further affidavit on 10 August 2016 to which he annexed a document setting out a summary of his personal thoughts addressing the following:
(i) what his marriage was like
(ii) what work he was doing
(iii) how did he found out about Doune’s death and how that was for him
(iv) what it was like seeing her body – how he had been affected and what was his biggest hurt
(v) what work he now could not do
(vi) what work he was now doing
(vii) the reason he could he not do counselling, and what that had to do with the accident
(viii) his current living situation
(ix) what had changed in his relationship as a partner, father, friend, and how were his family relationships affected.
The Plaintiff’s treaters
82 Dr Garry Sheehan, psychiatrist and psychoanalyst, first saw the plaintiff on 15 March 2010. They met weekly until 30 November 2010 over thirty-one sessions.
83 Dr Sheehan noted the plaintiff sought help because he felt dissatisfied with his wife and infatuated with a former colleague.
84 After three assessment sessions, Dr Sheehan thought that the plaintiff was basically a psychologically healthy person. He was able to engage in and enjoy the main parts of life, namely family, friends and work. Dr Sheehan did not believe there was a formal psychiatric diagnosis to be made. Instead, he saw a situational disorder, namely a marital relationship stuck in the process of development.
85 Dr Sheehan noted that over the nine months they met, the plaintiff used his psychotherapy to expand and blossom as a person. The limited and stultified marriage was infused with understanding and liveliness. Their marriage path had been determined for both by the early loss of parents and family life and they needed to rediscover each other as partners, not as substitutes for absent parents.
86 Counselling was finished in November 2010 by mutual agreement. Dr Sheehan thought important steps had been taken and the plaintiff had gained understandings of himself, his wife, their marriage and his life that he continued to build upon. He considered the plaintiff’s prognosis was good.
87 Dr Sheehan noted in early assessment sessions he had asked the plaintiff about his job and the plaintiff told him he loved it and it was just what suited him. He noted the plaintiff’s interest in work and engaging with colleagues and clients was clear.
88 After the accident, the plaintiff was first seen by Dr Norris, psychologist, on 4 October 2011, and thereafter, weekly or fortnightly, before she reported on 24 August 2012.
89 Dr Norris noted that when seen three months after the accident, the plaintiff reported difficulty sleeping, frequent waking, lucid dreams, extreme tiredness, restlessness and nervousness, feeling overwhelmed and with a sense of loss of control. He felt vulnerable, occasionally hopeless and worthless.
90 Dr Norris considered that the plaintiff was suffering from complicated grief and anxiety with some features of depression. She was aware of no personality disorder, psychological conditions, physical illness or other situation which would account for the distress and grief which the plaintiff was continuing to experience since the accident.
91 Dr Norris noted the plaintiff was initially unable to work in any capacity, and was currently only partially carrying out his previous professional duties. At the Foundation, he was not able to take on a case load of counselling clients, but was providing assessment for clients who then received counselling help from other counsellors in the team. He also did some work that did not directly involve client contact. She noted he was only able to do very limited work in his private practice and was not able to work with clients at all.
92 Dr Norris then thought the plaintiff’s psychological condition had not stabilised. She noted he was motivated, intelligent and resourceful, and had integrity and application. He had sought out, and been able to use, the psychological and social supports available to him.
93 In Dr Norris’ opinion, the most likely outcome was that the plaintiff would return to his previous level of functioning, or close to it. She then thought he may require a further six to twelve months to achieve that, adding he was committed to procedures and steps dedicated to his return to previous work duties and had made appropriate use of psychological counselling.
94 On this basis, Dr Norris thought a good outcome was a reasonable expectation; however, it may take time to return to the plaintiff’s full professional duties due to the complexity and demands of the specialised work he was trained for and experienced in. The next most likely outcome was a further partial recovery from his current psychological condition, and there was a slight possibility of little or no further recovery.
95 The plaintiff underwent “life planning” psychological counselling for three sessions in October 2012 with Dr David List, consultant clinical psychologist.
96 The plaintiff then reported suffering from a range of symptoms which included a level of insomnia which was slowly receding, high levels of anxiety regarding the fragility of life, feelings of sadness, guilt and profound depression, to the point of desperation at times, significant ongoing impairment in his work and anger at his wife for having deserted him by her death.
97 The plaintiff reported having suffered significant incapacity to treating his client population. He had been unable to return to private practise direct treatment and was limited to a consultative and supervisory role. He reported he felt that he could no longer “hold” patients (emotionally) and had been unable to return to what was the core of his work. He had reduced his workload from full-time to 0.6 EFT.
98 Dr List thought the plaintiff’s presentation, whilst not indicative of a larger psychiatric disorder in relation to his personality or premorbid mental health, was consistent with a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) in relation to the loss of his wife.
99 Dr List reported that the plaintiff did not appear to be recovering in the current timeframe. He did not appear to have developed a new capacity to fight the symptoms and struggled to confront the demons associated with, and arising from, the trauma or loss.
100 As a result, the plaintiff continued to feel enormously burdened by, and powerless to assert himself against, his symptoms. Dr List thought that the plaintiff had been so emotionally exhausted by his circumstances that he had taken a passive position in dealing with them, which was natural and understandable.
101 Dr Eramo, clinical psychologist, first saw the plaintiff on referral from Ms Norris on 21 September 2013, and continued to see him regularly during 2014 and 2015.
102 In her most recent report of August 2016, Dr Eramo noted the plaintiff continued to report symptoms congruent with PTSD. She noted he reported excessive tiredness, sleep disturbance and nightmares relating to his wife’s death. Further, she noted the plaintiff’s son, Boyd, was a source of distress and a constant reminder of the loss of his wife. Boyd appeared to be depressed, amotivational and stalled in his development.
103 Dr Eramo considered the plaintiff’s ability to work in his chosen profession remained considerably diminished, noting his work entailed listening to and counselling victims of trauma and loss. In her view, the emphatic response needed for successful intervention could elicit feelings of distress in counsellors. Their ability to work in the field was dependent upon their ability to regulate their own feelings and the plaintiff was no longer able to do this. Previously, the plaintiff could remain connected whilst controlling unwanted responses by assuring himself this would not happen to him. Unfortunately, it had happened to him and he felt overwhelmed. In his current state, she thought it would be unethical for him to resume his previous work and his constant tiredness also precluded full-time employment.
104 Dr Eramo noted the plaintiff had made every reasonable effort to get on with his life and that he would prefer to be working full time in his previous position. The plaintiff has had to accept that this may not happen and develop ways of coping with continuing tiredness, stress and diminished sense of self.
105 Dr Stanton, the plaintiff’s general practitioner from West Brunswick, provided a report in September 2015.
106 Dr Stanton first saw the plaintiff on 3 August 2011 and there were subsequently three examinations in 2011, five in 2012, four in 2013 and four in 2014.
107 Dr Stanton noted the plaintiff’s wife was killed suddenly and unexpectedly in the accident. The plaintiff was distressed and distraught and had a prolonged bereavement. Consultations involved providing support, referrals and medical certificates.
108 Dr Stanton diagnosed a bereavement reaction to the sudden, unexpected and violent death of the plaintiff’s long-term partner. The last attendance in relation to bereavement was 19 August 2014.
109 Dr Stanton could not comment on the plaintiff’s current capacity for work because he had not seen him regularly, but he noted the plaintiff was not able to provide direct care to traumatised refugees and that his work was limited to training and consultation work.
Medico-legal
110 Dr Chris Grant, psychiatrist, examined the plaintiff on behalf of the defendant in November 2012. The plaintiff then gave no account of any previous psychiatric treatment or substance abuse.
111 Dr Grant thought the plaintiff appeared to be experiencing ongoing emotional effects — a grief reaction to his wife’s death. In his view, the plaintiff’s grief reaction was abnormal and pathological, in that it was unusually severe and prolonged, possibly a reflection of some ambivalence in the relationship with his former wife.
112 Dr Grant noted the plaintiff was able to resume some work, albeit with limitations, and also started a new relationship. Dr Grant considered current psychological treatment was useful fortnightly and did not think anti-depressant medication was currently required.
113 Dr Grant then thought the plaintiff was fit to work three days a week at the Foundation, but not fit to resume private practice or solo unsupervised work.
114 Dr Nathan Serry, psychiatrist, first examined the plaintiff in December 2014.
115 In terms of his marital history, the plaintiff said his relationship with his wife was a good one with its ordinary ups and downs. The plaintiff was then living with his new partner, having been with her for eighteen months and living with her for the last six months.
116 In terms of past medical history, Dr Serry noted the plaintiff had ankylosing spondylitis and recently diagnosed sleep apnoea.
117 In terms of past psychiatric history, the plaintiff did have some anxiety, for which he underwent some counselling two years before the accident.
118 On initial examination, Dr Serry thought the plaintiff had some mild anxiety a couple of years before the subject accident, with apparent full resolution. The psychiatric illness resulting from the accident was an initial grief reaction which would now better be conceptualised as a Chronic PTSD, where the plaintiff was exposed to a major trauma by virtue of him being informed of his wife’s death and the circumstances thereof.
119 Dr Serry noted the plaintiff had intrusive symptoms, including recurrent, involuntary and intrusive distressing memories, recurrent distressing dreams, flashbacks and psychological distress on exposure to certain cues.
120 Dr Serry noted the plaintiff was working, but in a diminished capacity and in a very different role. The plaintiff felt unable to do the sort of face-to-face work with victims of trauma and torture that previously characterised his work.
121 On re-examination on 9 November 2015 when questioned about pre-existing mental health issues, the plaintiff advised he consulted a psychoanalyst during 2010 and also a psychologist, relating this to some pre-existing anxiety. He described a generally good relationship with his wife.
122 Dr Serry thought the plaintiff should continue with his current psychological treatment, noting he had no insignificant residual and persistent features of anxiety, as well as fluctuating depressive symptomatology.
123 In Dr Serry’s view, the plaintiff’s overall level of functioning had never returned to premorbid levels and he could potentially benefit from appropriate supplementary pharmacotherapy. However, he doubted there would be a full resolution of the plaintiff’s ongoing symptoms.
124 Dr Serry considered that the plaintiff had accommodated his loss to a degree but remained quite symptomatic, with symptoms which were likely to be longstanding.
125 Having been provided with Dr Doherty’s report, Dr Serry provided a supplementary report.
126 Dr Serry confirmed it was very much his opinion there had been a substantial psychosocial impact of the plaintiff’s tragic loss, with impacts which had affected most areas of his day‑to‑day function. To attribute such changes to pre-existing matters or to the effects of medication that the plaintiff had taken for his unrelated health condition was not, in Dr Serry’s opinion, at all consistent with the plaintiff’s history or clinical presentation.
127 Whilst noting there were certain points of agreement between himself and Dr Doherty, Dr Serry was very much of the opinion that the plaintiff’s psychiatric condition was of greater significance than that suggested by Dr Doherty.
128 On re-examination in June 2016, Dr Serry noted that since the second assessment, the plaintiff stated he experienced fluctuating periods of flatness and low mood, invariably associated with poor sleep. These tended to last for three to four days and may occur once a week, or perhaps a little less frequently. The plaintiff found that ordinary tasks required a much greater expenditure of energy.
129 The plaintiff stated he had been aware of a sense of fatigue ever since the accident and that there had been no change in terms of that level in relation to the medications he had been prescribed, in particular, Prednisolone. He advised he had some motivation for work, but was not confident in his ability to do much else and his loss of external interest was diminished and he found he spent a lot more time on his own.
130 Dr Serry thought the plaintiff continued to have some residual features of grief and some ongoing features of traumatisation. The plaintiff described fluctuating low mood, but more particularly a quite high level of background general anxiety.
131 Dr Serry thought the plaintiff should continue under the care of his treating psychologist. He considered there was maybe some place for the use of anti‑depressants, although he remained of the opinion there was unlikely to be a full resolution of the plaintiff’s ongoing symptoms.
132 Dr Serry thought the plaintiff’s condition had stabilised and would suggest his prognosis was mixed. He noted the plaintiff continues to function at a generally reduced level in terms of work and important inter-personal relationships. He saw little likelihood of any substantial change over time.
The Defendant’s medical evidence
133 Associate Professor Lim, consultant rheumatologist, saw the plaintiff on referral from his general practitioner in February 2015.
134 Dr Lim noted that the plaintiff when he was nineteen had pain in his feet, jaw, clavicle and knees, and had seen a rheumatologist, and was diagnosed with ankylosing spondylitis. Injections and anti-inflammatories helped, and after two years, the condition improved.
135 In the last twenty years, the plaintiff would experience tendinitis and lower spine stiffness. He had pain in his jaw, had rotator cuff strains, and his neck was sore, as were his feet.
136 Dr Lim thought the plaintiff was clearly much affected by spondyloarthropathy. He commenced the plaintiff on methotrexate and prednisolone on 17 July 2015.
137 The plaintiff was referred to an ENT surgeon, Mr Matthew Campbell, in 2008, with problems of snoring. Mr Campbell suggested nasal surgery for a deviated septum.
138 On 19 August 2014, the plaintiff was referred to Dr David Cunnington at the Melbourne Sleep Disorders Clinic with a twenty‑year history of snoring. A mandibular advancement splint was suggested, and sleep studies undertaken in late 2014.
139 As of September 2015, Dr Cunnington advised Dr Stanton that there had been a reduction in snoring with the splint. The plaintiff felt sleep symptoms had not changed much.
Medico-legal
140 The plaintiff was examined by Associate Professor Doherty, consultant psychiatrist, on 6 November 2015. Dr Doherty was provided with Dr Sheehan’s 2010 report and details of the plaintiff’s treatment by psychologist, Don Walton, in April 2008 for relationship issues.
141 Dr Doherty considered there was a largely remitted Depressive Disorder without active symptoms currently diagnosable. It was a significant and prolonged bereavement reaction that went on for three or four months, and during that time, it evolved into a depressive condition. This improved, and there was a return to work on reduced hours in alternative duties.
142 Dr Doherty noted there had been persistent mild complaints of a psychological nature, and more recently, significant experience of pain from a physical condition, with widespread pain on and off since the age of sixteen.
143 Dr Doherty thought the plaintiff now presented with a range of poorly defined symptoms of mild severity, marked by fatigue, reduced stamina, and easy exhaustion. There was significant pain, and no current depressive symptoms, but some mild anxiety symptoms.
144 Dr Doherty noted the plaintiff had returned to work, though not to usual hours, and had commenced a significant relationship in 2012, and was now a father to be.
145 In Dr Doherty’s opinion, from a clinical point of view, the plaintiff had had a prolonged bereavement reaction with a Depressive Disorder due to the death, and now had some residual features of that bereavement and Depressive Disorder. These features were the plaintiff’s concern about a potential client bringing up an issue of loss or trauma, and the plaintiff’s uncertainty about his professional competency.
146 Dr Doherty thought the presentation of symptoms for the first three months following the news of the death and the subsequent ongoing psychological complaints were not typical of PTSD. Whilst there was not an Adjustment Disorder with Depressed and Anxious Mood, he thought there were elements present.
147 In Dr Doherty’s opinion there was no diagnosable pre-existing psychiatric condition.
148 Dr Doherty noted that there was hardly any active current diagnosable psychiatric condition, and the symptoms and complaints reported were the residual features of a Depressive Disorder, the pre-existing psychological issue, and the unrelated physical condition treated with steroids. He thought there were currently mild symptoms and psychological complaints which did not meet the diagnostic significance.
149 In Dr Doherty’s opinion, fatigue was as much explained currently by the use of prednisolone and methotrexate, and effects of pain associated with the physical condition, and diagnosed ankylosing spondylitis, as the plaintiff’s persisting psychological issues.
150 In summary, Dr Doherty thought there was a pre-existing psychological and personality issue, and after the death, a prolonged bereavement reaction that evolved into a Depressive Disorder which had now remitted, leaving the plaintiff with a small number of psychological difficulties.
151 Dr Doherty also considered that the plaintiff did have a diagnosable psychiatric condition of a remitted Depressive Disorder and that it had arisen as a result of the accident. That had passed, and the depressive condition was now without any clinical symptoms.
152 Dr Doherty thought the plaintiff’s prognosis was good. The plaintiff reported a range of vague symptoms related to concentration, exhaustion, and tiredness, which were not of such clinical significance that they represented a psychiatric condition.
153 Dr Doherty also stated in his report that the psychological reaction sustained by the plaintiff as a result of the accident caused him to reconsider and relook at work and family issues, which had then led him to change his work behaviour.
154 However, Dr Doherty thought the plaintiff was capable of dealing with patients in a one-to-one setting, and there was no reason due to the presence of a psychiatric condition that would cause him not to be so capable. He thought there was no psychiatric condition that caused the plaintiff to not be capable of full-time work.
155 Dr Doherty provided a supplementary report, having been provided with Dr Serry’s 2014 and 2015 reports. Those reports did not cause him to change his view.
156 Dr Doherty stated he was not of the view the plaintiff’s loss of his wife had caused impacts which had affected most areas of his day-to-day functioning as Dr Serry opined. That would not appear to be the case, as the plaintiff had formed a new relationship and was pleased with the forthcoming parenthood at the age of fifty-two.
157 In Dr Doherty’s opinion, insufficient weight had been given by Dr Serry to the long-term effects of the medical condition ankylosing spondylitis and the current use of prednisolone which would cause tiredness, fatigue and mood alterations.
158 Dr Doherty noted he had not, as Dr Serry suggested, attributed all impacts on the plaintiff’s day-to-day functioning to the effects of medication of the unrelated medical condition. As Dr Doherty had previously stated, the current stressors had to do with the pregnancy of the plaintiff’s partner, the medical condition and its treatment and the family dynamics.
159 Dr Doherty confirmed his view there was no psychiatric condition that interfered with the plaintiff’s capacity to undertake one-to-one psychological counselling or treatment. The plaintiff had told him it was reduced energy, feeling drained, losing focus and concentration that caused him to have the view that he could not work full pre-accident hours. It was not specific concern regarding trauma or torture narratives of a client. He said he would do what was asked of him, but was of the view he could not cope with full hours.
Overview
160 There is no issue that the plaintiff suffered a psychiatric injury as a result of the death of his wife, Doune, in the transport accident. Liability was accepted, and treatment continues to be funded by the defendant.
161 There is however a dispute as to whether the plaintiff presently suffers a diagnosable psychiatric condition, with Dr Doherty the only practitioner of the view that he no longer does so. No other practitioner considered the plaintiff’s psychiatric condition had resolved or was of limited duration.[43]
[43]T3
162 Following his third examination of the plaintiff in June this year, Dr Serry thought the plaintiff continued to have some residual symptoms of grief and traumatisation. When she last reported in late 2015, treating psychologist, Ms Eramo, considered that the plaintiff continues to suffer from a PTSD.
163 I prefer these views to those of Dr Doherty, who has seen the plaintiff on only one occasion. Whilst he accepted there was an initial psychiatric condition which he diagnosed as Depression, he considered that condition had resolved without any explanation as to the reason for that resolution or the timing thereof. As counsel for the plaintiff submitted, there is nothing temporally that would assist the Court in identifying the point at which the depressive condition ceased.[44]
[44]T64
164 I accept the submission by counsel for the plaintiff that Dr Doherty’s report in regard to this issue lacks any real cogent path of reasoning.[45]
[45]T63
165 Further, seemingly at odds with his ultimate conclusion that the plaintiff retains a capacity for his pre-accident employment and he no longer has a psychiatric condition, Dr Doherty also said in his report that the plaintiff had been left with a situation post-accident where he had to change his work and lifestyle as a result of his psychiatric condition.[46]
[46]T66
166 In these circumstances, counsel for the plaintiff submitted that Professor Doherty “had a foot in both camps”.[47]
[47]T4
167 Further, to a large extent Dr Doherty appeared to attribute the plaintiff’s fatigue to his arthritic condition and the medication taken in relation thereto. However, Prednisolone was only prescribed last year and taken for three months and the plaintiff has complained of significant ongoing fatigue since the accident.[48]
[48]T65
168 Taking into account all the evidence, I am satisfied the plaintiff suffers a psychiatric condition related to the accident, the effects of which are ongoing.
Credit
169 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“…the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[49]
[49](2010) 31 VR 1 at paragraph [12]
170 Counsel for the defendant submitted there were credit issues in this case because of the plaintiff’s description of his marriage as “happy” and his failure to mention in his affidavits marital problems pre accident and three-and-a-half years of counselling in relation thereto. It was submitted that on that basis, I should have concerns as to accepting the plaintiff’s evidence as to other matters such as the change in his career which he attributes to his psychiatric condition.
171 It was submitted the “happy marriage” scenario was a reconstruction and that is how the plaintiff’s evidence as to the reasons for his post-accident career change should be viewed.[50]
[50]T52
172 It was submitted that the plaintiff’s reliability was very important in a psychiatric case because “subjective responses and feelings are really at the assessment and the application of psychiatric criteria that examiners consider.”[51]
[51]T48, Mason v Transport Accident Commission [2014] VSCA 267 at paragraphs [100]-[105]
173 Counsel for the plaintiff submitted that attacks on the plaintiff’s credit were unsuccessful and that the plaintiff should be viewed as being an honest, reliable and creditable witness.[52]
[52]T60
174 In my view, the plaintiff was a truthful witness, whose evidence as to the effects of Doune’s death was given candidly and without embellishment. Ultimately, there was no real issue as to his previous marital problems which were raised by counsel for the plaintiff in terms of credit, rather than a significant pre-existing psychiatric condition.
175 I am satisfied that as at the accident date, the plaintiff’s marital relationship was settled and happy with counselling having been completed successfully in November 2010 as Dr Sheehan confirmed.
Are the present consequences “severe”?
176 In opening, counsel for the plaintiff submitted that the most easily identifiable consequence of the plaintiff’s impairment was his reduced capacity for work.[53] There had also been a tangible reduction in his gross earnings.[54]
[53]T1
[54]T3
177 Counsel for the defendant submitted that the way the case was put was an effect upon the plaintiff’s capacity to earn or capacity to work. It was not a case of a “florid psychiatric disorder of the type sometimes spoken of in some judgments that require hospitalisation and the like.”[55]
[55]T47
178 In response, counsel for the plaintiff submitted the application was not limited to pecuniary loss or loss of vocation. These issues were highlighted in the opening because they seemed to be overwhelming on the evidence, but the application was not limited to them.[56]
[56]T60
179 Since the accident, the plaintiff has experienced ongoing problems with memory and concentration, significant fatigue, sleep disturbance, a lack of interest and motivation in his social and domestic life, and, most significantly, has had to change direction in his career, being unable to undertake counselling of trauma victims, a vocation he loved.
180 I accept that there has been a substantial psychosocial impact of the plaintiff’s tragic loss, which has affected most areas of his day-to-day functioning as Dr Serry opined, with the plaintiff experiencing a high level of background general anxiety.
Work
181 Counsel for the defendant submitted that the contemporaneous material in late 2012 does not support the plaintiff’s claim that he had to cease one-to-one counselling at that time because of his psychiatric condition. In these circumstances, there was a “black hole” and the case became difficult when the plaintiff’s history was not actually true history.[57]
[57]T54
182 It was submitted that treating psychologist, Dr Norris, in August 2012 described a steady progression towards the plaintiff resuming a substantive counselling role.[58] There was no report from her detailing the plaintiff’s progress up to when she ceased treating him in March 2013.[59]
[58]T48
[59]T50
183 Further, between March and September 2013 when the plaintiff started seeing Dr Eramo, the plaintiff did not have any counselling. It was submitted that there is no evidence as to what happened between August 2012 and September 2013 except that of the plaintiff.[60] Whilst it might be the plaintiff’s evidence that he ceased counselling because of his psychiatric condition, the medical support for that evidence comes later on.[61]
[60]T55
[61]T49
184 It was submitted that until the “safe harbour” of re-examination, there was no mention by the plaintiff of any discussions with his manager as to difficulties with his duties and a consequent change in his duties. Counsel submitted that it would be a powerful case if an affidavit from the manager had been provided. [62]
[62]T50
185 Counsel for the defendant also relied on the view of Dr Doherty, who thought the plaintiff could return to the full range of his pre-accident duties.[63]
[63]T56
186 In response to the “black hole” argument, counsel for the plaintiff submitted there was a consistency from doctors who had treated the plaintiff and also medico-legal practitioners from the date of the accident, with the exception of Dr Doherty, as to the plaintiff’s incapacity for his pre-injury counselling duties.[64]
[64]T60
187 Whilst having some optimism as to the plaintiff’s prognosis, Dr Norris reported that the plaintiff was only able to do very limited work in his private practice and was unable to see clients at all.[65]
[65]T61
188 When seen by Dr List in October 2012, the plaintiff was having substantial distress and change to his work and career and did not appear to be recovering. As Dr List described, the plaintiff was unable to return to what was the “core” of his work.[66]
[66]T62
189 Dr Grant, the following month, thought the plaintiff was not fit to resume private practice or solo, unsupervised work.
190 The plaintiff came under Dr Eramo in September 2013, who considered that he clearly suffered from PTSD and was no longer able to work as a counsellor to victims of trauma – work he deemed “real work”, which had been a major source of loss in his life.[67]
[67]T63
191 Dr Eramo explained how the plaintiff’s sense of self was tied to his trauma counselling work – which was more of a vocation than a position – and his loss of identity could not be overestimated.
192 I accept the submission that there was a consistent picture from the accident date of ongoing problems with counselling work.[68]
[68]T63
193 I do not accept there was a “black hole” that was unexplained by the plaintiff, and, in my view, he has consistently given medical practitioners a history of problems with counselling, his attempts to go back to counselling, and his inability to do so, leading to a change in career direction.
194 I reject the submission by counsel for the defendant that the plaintiff changed career in 2012 not because of any accident related psychiatric issues, but because of a change in lifestyle and that for reasons of “life balance,” it was easier to do training work.[69]
[69]T52
195 I accept that counselling of trauma and torture victims was a major part of the plaintiff’s life, having worked in that field for some ten years before Doune’s death.
196 As a result of his accident-related psychiatric condition, the plaintiff is no longer able to do that work and perhaps any one-on-one counselling, having made unsuccessful attempts to do so in 2012. As Dr Stanton opined that the plaintiff is not able to provide direct care to traumatised refugees and his work is limited to training and consultative roles. There has been no significant improvement in the plaintiff’s condition since 2012 such that would make a return to full pre accident duties likely.
197 Further, I accept that the plaintiff suffered a significant loss of income as a result of his change in career. In 2011, prior to Doune’s death, with his private practice having the same expenses as now of around $30,000, the plaintiff had an ability to earn $70,000. In recent times, his earning capacity has significantly reduced, working three days at the Foundation and having no private patients, just a mentoring and teaching role.
198 In my view, the plaintiff cannot be criticised for continuing his private practice which runs at a loss. He is still hopeful of expanding his private work but as yet has been unable to do so because of his accident related difficulties.
199 In my view, the plaintiff is presently working at his full capacity and would be unable to work a fourth day at the Foundation as he explained.
200 I accept the plaintiff’s problems with memory and concentration prevent him from working longer hours in his current role. Further, the re‑traumatisation involved in counselling his pre-incident clients is such that he will never return to that type of work.
201 Whilst he may have a current certification as a registered psychologist, and denied any impairment to carrying out that role, I accept his explanation that he works within his capacity and what is “ethical” to do, as he has been advised by his treating psychologists. This does not involve one-on-one counselling, particularly of trauma victims.
202 The plaintiff’s evidence as to ongoing horrible dreams and intrusive thoughts of Doune’s death was not challenged. He continues to be over vigilant as to his partner and children’s welfare and safety. He is more worried about his own health.
Other health conditions
203 Counsel for the defendant submitted medical examiners, save for Dr Doherty, had an inadequate history of the plaintiff‘s problems with sleep apnoea and arthritis which had to be taken into account when considering the plaintiff’s present situation.[70]
[70]T51; T5
204 It was submitted the plaintiff’s complaints as to his memory and concentration could also arise in the context of his sleep disorder. The medical material as to the sleep disorder and arthritis “came on in a big way” in 2014, and whilst those conditions were longstanding, they had not required referral, treatment and studies beforehand.[71]
[71]T53
205 However, as mentioned earlier, Dr Doherty incorrectly focused on the role of Prednisolone in the plaintiff’s current presentation as a cause for fatigue, when that was only prescribed for a few months in 2015 and fatigue has been an ongoing problem for the plaintiff since the accident.
206 Further, in terms of his sleeping issues, the plaintiff explained that the splint has stopped his snoring but the sleep problems persist with resultant fatigue as they have done since the accident.
Family
207 Whilst the plaintiff has a new relationship with a new baby, I accept that as a result of his psychiatric condition, he has ongoing problems with this partner.
208 Although he has been able to re‑partner, the plaintiff feels inadequate in his ability to contribute emotionally to that relationship, describing his contribution as “unbalanced” – not being able to give all of himself as he is preoccupied with his own issues. As Dr Serry noted on examination in late 2015, the plaintiff had problems being “emotionally present” with his partner in late 2015 when she was pregnant.
Treatment
209 As the Court of Appeal recently stated in Katanas v Transport Accident Commission,[72] a psychiatric disorder may have severe consequences even though the sufferer has not undergone much treatment.
[72][2016] VSCA 140 at paragraph [20] (per Ashley and Osborne JJA)
210 Whilst the plaintiff’s condition is not one for which he has required significant treatment, since the accident, he has continued to require ongoing counselling. Despite this treatment, there has not been any significant long-term improvement in his grief and traumatisation relating to the accident.
211 Further, Dr Stanton saw the plaintiff on numerous occasions after the accident to provide support, referrals and medical certificates for the distress associated with the plaintiff’s prolonged bereavement.
212 Whilst counsel for the defendant submitted that perhaps if he had more treatment and antidepressants, the plaintiff could go back to counselling,[73] there is no medical support for this proposition. There has been no specific counselling suggested or available to the plaintiff specific to enable him to get back to his full pre-injury duties. His efforts in this regard with Dr List were unsuccessful.
[73]T58
213 The plaintiff’s treaters have not seen fit to prescribe anti-depressants with Dr Serry of the view this medication “may” produce some degree of improvement in the plaintiff’s psychological distress.
214 Whilst the “severe” test is a high bar, I am satisfied that the loss of vocation and consequent economic loss, fatigue, sleep difficulties and relationship issues resulting from the plaintiff’s accident related psychological condition are such that his present impairment is “severe”.
215 There is no indication that there will be any change in this situation with any further treatment, and as the plaintiff’s condition has persisted for in excess of five years despite ongoing counselling, I accept that it is also long-term.
216 I grant leave to the plaintiff to bring proceedings for damages in relation to this accident injury.
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