Barton v Transport Accident Commission
[2013] VCC 392
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00842
| RODNEY BARTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 11 April 2013 | |
DATE OF JUDGMENT: | 15 April 2013 | |
CASE MAY BE CITED AS: | Barton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 392 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraphs (a) and (c)
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Petkovski v Galletti [1994] 1 VR 436; Coghlan v Cumberland [1898] 1 CH 704; Rosenberg v Percival (2001) 205 CLR 434; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
Judgment: Leave granted to the plaintiff to commence proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton SC with Ms S Gold | Adviceline Injury Lawyers |
| For the Defendant | Mr A Clements SC with Mr D Oldfield | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this application, pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), the plaintiff seeks leave to bring proceedings for the recovery of damages arising out of a transport accident on 10 February 2007.
2 The plaintiff, who is now aged thirty-seven years, relies on a paragraph (a) injury to both the cervical and lumbar spines. The relevant body function relied on is that of the spine and this involves, in one sense, aggregating two levels of the vertebral column. In my opinion, this is permissible. The defendant agreed that approach was correct.[1]
[1]Transcript (“T”) T1
3 The plaintiff also relies on a paragraph (c) psychiatric injury. It is best described as Post-Traumatic Stress Disorder, Chronic Major Depressive Disorder and Chronic Pain Disorder.
4 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found s93(17) of the Act. There:
“serious injury means—
(a) serious long-term impairment or loss of a body function;
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 The issues in this application are quite straightforward. The defendant argues that the paragraph (a) impairment of function of the spine does not meet the test of “serious”. It conceded the plaintiff suffered an injury to the spine. It was also conceded that if I accept the plaintiff’s credit, then the application succeeds under paragraph (a).[2]
[2]T121-122, 147, 148, 150, 151
6 In relation to paragraph (c), it is argued the injury does not satisfy the test of “severe” in terms of its consequences. There is an additional issue with respect to the paragraph (c) application. It is said by the defendant that any psychiatric injury is an aggravation of a pre-existing condition and thus an analysis under the principles of Petkovski v Galletti [3] is required.
[3][1994] 1 VR 436
Background
7 The plaintiff is a family man who was working for Woolworths until he was subjected to a workplace bullying, harassment episode in either 2005 or 2006. It is clear from the material, and I find, that as a result of those workplace events, the plaintiff was off work for a number of months due to workplace stress. At the time of the transport accident, he was still suffering from such stress as is confirmed by the WorkCover Certificate from his general practitioner dated 17 February 2007.[4] It indicated that anti-depressants and counselling, as well as a referral to a psychologist, were required for the workplace injury.
[4]Defendant’s Court Book (“DCB”) 26
8 He was still off work at the time of the transport accident as a result of these conditions but it needs to be put in some context. When one goes to the reports of his general practitioner, Dr Steven Chai, it is clear he thought this condition was resolving at the time of the subject accident.[5] On 19 September 2008, he said:
“His depression and anxiety from work related issue has settle.”[6]
(sic).
[5]Plaintiff’s Court Book (“PCB”) 23
[6]DCB 48
9 A medical report of 17 February 2010 further records:
“His work related incident in 2006 to 2007 has resolved.”[7]
[7]PCB 23
10 In relation to the plaintiff’s physical health prior to the transport accident, two documents were tendered by the defendant.[8] These refer to some soreness in lower back muscles that occurred at work in November 2003 and January 2004. However, I do not find on the evidence in this case that this was anything more than a muscular complaint. There was no ongoing injury, symptoms or impairments in relation to his low back at the time he was in the transport accident on 10 February 2007.
[8]DCB 114-115
11 Similarly, some old records from Ballarat Health in 1999 refer to his neck and the requirement for an x-ray. It was reported as “normal”.[9] I find there was no pre-existing neck injury, symptoms or impairments at the time of the subject accident.
[9]DCB 113
12 The defendant relies on the WorkCover Certificates for work stress that extend beyond the transport accident up to 14 June 2007. It also relies on the counselling from Mr Philip Byrne, psychologist, also continuing beyond the transport accident. This is not the end of the matter.
13 In Mr Byrne’s report of 18 August 2006, he states:
“… At present Rodney would require psychological counselling to prepare him for a return to work to continue with his pre injury duties. Measures should be taken to prevent Rodney from further victimisation.”[10]
[10]DCB 56
14 I read this as describing the work-related psychiatric condition as settling with the treater at that time contemplating a return to pre-injury work and strategies to assist that.
15 This is consistent with the resolving condition the general practitioner, Dr Chai, spoke of and which I accept. I find that condition had settled by late 2008 and no longer plays any significant part in the plaintiff’s present psychiatric impairment.
The Plaintiff’s evidence
16 In this application, some comments are warranted in relation to what I found as to the plaintiff’s demeanour, presentation and reliability. It would be fair to say that for an English speaking person of his age, the plaintiff presented as very limited in his capacity to remember events, comprehend questions and then communicate his answers. He was often very confused by simple questions.[11] He had a stutter that can only be described as a terrible impediment to conversing. He presented as extremely emotionally distressed and I had to enquire on many occasions throughout this application as to whether he needed a break[12] and whether he was comprehending the questions that were being put to him. His agitation in the witness box was palpable[13] and he sweated profusely.[14] His body actions demonstrated a man who was both quite disturbed and probably showing the effects of very heavy medication. The transcript does not record what at times was an inordinate delay between a simple question and the first word he could express as he grappled with his stutter, his lack of concentration and thought processing. The witness had to be assisted by my staff at times to organise documents in the witness box in circumstances where his confusion was apparent.[15] Further examples of a witness who was extremely confused at times, which led to unresponsive answers that I do not accept indicated any untruthfulness, occurred on various topics.[16]
[11]T20, 23, 27, 29, 35, 42, 77, 78
[12]T15, 37, 88
[13]T33, 110
[14]T7, 11
[15]T84, 85, 87, 105, 110
[16]T81, 88, 90, 92, 102
17 Overall, I formed the view that the plaintiff was an honest witness who was making a very brave, and at times valiant, effort to answer questions as best he could. His memory could only be described as poor. However, this is explicable given the heavy medication that he is ingesting. I accept that is one of the side-effects of the medication he requires on a daily basis.
18 I accept also the evidence of Dr Weissman about the side-effects of what he called a “cocktail” of drugs:
“It can certainly affect someone’s thinking processes, someone’s attention, concentration, short-term memory, working memory, speed of information processing, concentration, word-finding difficulties, those sorts of things quite markedly.”[17]
[17]T48, lines 12-16
19 The case was a very apt example of the principles stated in Coghlan v Cumberland[18] and Rosenberg v Percival[19] regarding the advantage of hearing and observing a witness first hand.
[18][1898] 1 Ch 704 at 705 per Lindley MR, Rigby and Collins LLJ
[19](2001) 205 CLR 434 at [41] per McHugh J
20 The plaintiff provided two affidavits and his wife also swore an affidavit. I accept that the accident he was involved in was a major one and he was taken to the Ballarat Base Hospital following the impact.[20] I accept that he injured his neck and back in that accident and that he has been in constant pain in his spine over the seven years since the collision.[21] This pain is helped only by very strong medication and I find that he has been required to take narcotic medication in order to obtain any relief from such pain.
[20]PCB 7
[21]PCB 9
21 For a man of his age to be required some six years after the accident to ingest narcotic medication daily for spinal pain in order to get by is, in my view, a very considerable consequence. The principles in the case of Hawkins v DHL Express (Australia) Pty Ltd[22] and in the case of Aburrow v Network Personnel Pty Ltd[23] point to the disabling effect of pain and the analysis of it that is required.
[22][2013] VSCA 26
[23][2013] VSCA 46
22 I am mindful of what the plaintiff said about pain, both in his affidavit and in his oral evidence, being constant.
23 It has been proscribed that the consequences I must evaluate “involves a value judgment, in which matters of fact and degree, and of impression, are operative”.[24]
[24]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
24 In this application, I find that the constant pain from which the plaintiff receives limited help by way of narcotic medication affects his sleep, his capacity to work, his performance of family and household activities and enjoyment of life generally. I bear in mind the consequences he describes of this spinal pain, corroborated by his wife.[25] These consequences are very considerable.
[25]PCB 18, 19, 20 and 21
25 While this goes more to the paragraph (c) injury, I also accept the evidence of his wife[26] that a man with previously good communications skills and speech now has a much more pronounced stutter. Also this has affected his confidence and decision making.[27] I accept also that these consequences of the aggravated psychiatric condition have affected his sleep and the very poor memory he now demonstrates contrasts with his memory previously.
[26]PCB 22
[27]PCB 17
26 Another consequence described by his wife that qualifies as both serious and severe for this young man, is the effect on their sexual relationship.[28] She expresses this in terms that probably refer, as I read it, to the paragraph (a) application. I accept that the impaired spinal function would have the consequence she describes on their intimate life.
[28]PCB 20
27 He has undergone pain management for his physical injuries, as well as physiotherapy and hydrotherapy, together with Pilates.[29] Treatment has been extensive and now continuing for over six years.
[29]PCB 10
28 The most up-to-date evidence of his daily medication is OxyContin, Endone, Celebrex and Panadol for his spinal injury, and for his psychiatric problems, Zoloft and Seroquel.[30]Dosages are heavy.
[30]PCB 13
Paragraph (a) – the spinal injury – Medical Evidence
29 The plaintiff’s general practitioner, Dr Chai, describes it as a whiplash injury that is chronic in pain and stiffness. [31] He had a functional disability with looking up and turning his head and he suffers severe back pain with muscle spasms. Dr Chai thought the ongoing back and neck pain would remain.[32]
[31]PCB 23
[32]PCB 24
30 In a most up-to-date report of 20 March 2013, Dr Chai considered that the plaintiff’s incapacity and debility had not changed and that the degree of severity of the spinal pain might reduce. However, he considered that they were likely to be permanent.[33]
[33]PCB 24A
31 A video that was shown to me that lasted for some thirty minutes was shown to Dr Chai and it did not cause any change of opinion. Dr Chai reported on 3 April 2013:
“My opinion with regards to his medical condition caused through his injury remains the same after viewing the surveillance footage. He is currently on strong narcotic analgesics and antidepressant medications which hopefully provides some pain relief, mobility and normalcy of life.”[34]
[34]PCB 24C
32 Professor Richard Bittar, consultant neurosurgeon, saw the plaintiff for treatment purposes and he provided two reports, in 2009 and 2013. He found, in the most recent report, that the plaintiff continued to suffer from “significant pain and disability into the foreseeable future”.[35] He felt the plaintiff had “sustained a serious injury to both his neck and lower back in the motor vehicle accident”.
[35]PCB 28
33 Dr Andrew Muir, consultant in pain management, reports that the plaintiff was under his care for some time, originally at Epworth Medical Centre and then at the Victorian Rehabilitation Centre. Extensive treatment took place by way of physiotherapy, massage, exercise and Pilates, as well as narcotic medication. He thought at one stage there had been some positive signs but that the plaintiff was “likely to suffer ongoing pain and may require ongoing analgesia for the indefinite future”.[36] Dr Muir also noted the psychological aspects of the presentation which I will deal with later.
[36]PCB 32
34 Dr Muir’s reports which embrace the three years from March 2009 to March 2012 set out a significant amount of treatment for the plaintiff’s spinal impairment. The treatment history indicates the impairment of the spine is very considerable in terms of its consequences.
35 Several medico-legal opinions have been obtained and Mr Kevin King, consultant orthopaedic surgeon, first reported on 11 August 2009, and then in October 2010 and on 31 July 2012. His last report followed receipt of a good deal of information about the narcotic-based medication, as well as the branch blocks being sought by the pain specialist, Dr Muir. Mr King described the painkillers as:
“… very strong analgesics in the form of OxyContin (Morphine derivative) 30 mg a day, and Endone, two tablets a day, as well as other drugs as required.”[37]
[37]PCB 98
36 Mr King says in 2012:
“… This man is chronically and severely disabled by organic injuries to cervical, thoracic and lumbar spine, compounded by an overlay of depression and anxiety.”[38]
[38]PCB 100
37 The second medico-legal expert engaged by the plaintiff was Associate Professor Kenneth Myers, a professor of surgery. He reported on two occasions, the most recent being 24 October 2012, when he said:
“There is no reason to anticipate any future improvement in his condition in relation to the cervical or lumbar spine.”[39]
[39]PCB 107
38 The defendant’s medical material in relation to the spinal injuries is so dated as to be of little, if any, assistance in the task of judging the severity of the plaintiff’s injury now in April 2013.
39 Dr Michael Baynes, specialist in occupational medicine, reporting some four years ago, thought that the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic neck and lower back pain. He thought the cause of the ongoing pain was somewhat unclear, however, there was evidence of disc prolapse in the cervical spine and some disc degeneration in the lumbar spine. He related it to the motor car accident.[40]
[40]DCB 76
40 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in August 2010 and again this is quite outdated. Mr Shannon thought it probable that a soft-tissue injury to the cervical and lumbar spine had occurred with a psychological reaction and Chronic Pain Syndrome.[41] He thought the predominant problem had become the Chronic Pain Syndrome and that the ongoing physical injury had probably ceased, it appears.[42] However, that last statement is somewhat equivocal when one takes account of the final opinion Mr Shannon gives:
“Therefore, to the extent that he has a physical organic impairment in the neck and back, it is attributable to the second accident rather than the original accident.”[43]
The second accident is clearly the 2007 subject accident.
[41]DCB 86
[42]DCB 92
[43]DCB 87
41 The final report for the defendant was from Dr Tony Kostos, rheumatologist, who reported on 22 August 2011. This is outdated and I am not assisted by it. His expertise in rheumatology is perhaps less helpful than the expertise of the surgeons and pain management experts. In any event, Dr Kostos felt that the plaintiff had a Chronic Pain Syndrome with a poor prognosis and it was a “well entrenched” chronic pain state which, as I understand his report, is more a psychiatric condition than a physical one.
42 Accepting as I do the plaintiff’s credit, and the defendant’s concessions, it follows that the impairment of the spine has resulted in consequences that are serious.
43 I should add for completeness that there is objective radiological evidence of significant disc damage to the spine at both levels as Mr King described.[44] In addition objective signs of spasm are recorded by Mr King[45] as well as by Dr Baynes for the defendant.[46]
[44]PCB 89
[45]PCB 88, PCB 94 and PCB 99
[46]DCB 76
44 Dealing with the medical evidence generally I do not read it as involving any attacks on the plaintiff’s genuineness. The references to exaggeration are in the context of there being both a psychological element in addition to or overwhelming the physical.
Paragraph (c) – Psychiatric Injury
45 In view of granting leave under paragraph (a) it is therefore not necessary for me to undertake a full analysis of the paragraph (c) aspect of his application but it is worth recording some of my findings.
46 Firstly, the presentation of the plaintiff that I have already alluded to indicated to me that he is patently very disturbed emotionally and psychologically. I find that while he sustained workplace stress with symptoms that he set out in his WorkCover Claim Form which included anxiety, panic attacks, feeling overwhelmed and lacking in concentration and memory.[47] It had settled by late 2008.
[47]DCB 116
47 The treating psychologist, Ms Beth Kilgour, reported that the transport accident had –
“… exacerbated the psychological difficulties with depression and inability to work he was experiencing at that time.”[48]
[48]PCB 41
48 She thought that the plaintiff –
“… continues to display significant psychological difficulties which do not appear to have altered greatly”. She felt that overall, the plaintiff “continues to suffer chronic pain in his neck and lower back, along with severe anxiety and post-traumatic symptoms. I believe he meets the DSM-IV criteria for Pain Disorder, Chronic and Post-Traumatic Stress Disorder, chronic. Given the entrenched nature of his condition and the lack of response to treatment, it does not seem that he will benefit from further psychological treatment at this time.”[49]
She felt that he had a continuing incapacity for work.[50]
[49]PCB 41
[50]PCB 41
49 I note that Ms Kilgour had the opportunity to assess the plaintiff over some twenty two sessions and this leads me to more readily accept this opinion.[51]
[51]PCB 40
50 Dr Alan Blandthorn, consultant psychiatrist, had the opportunity to treat the plaintiff. While his report was in 2009, and that is quite a few years ago, he was able to diagnose, over the course of multiple visits, that the plaintiff’s condition had changed little in spite of the interventions that he had received and that he had only a guarded prognosis.[52]
[52]PCB 45
51 Dr Blandthorn’s consultations with the plaintiff numbered at least eight and he is also well qualified, along with the general practitioner, Dr Chai, and Ms Kilgour, to make an appraisal of the plaintiff’s condition and prognosis.
52 I was most helped by the evidence of Dr David Weissman, consultant psychiatrist, who provided three reports that included an up-to-date report dated 15 November 2012. He saw the plaintiff in 2009, 2010 and then, in late 2012. I accept his opinion on the plaintiff’s condition now and on causation. He was required for cross-examination and he gave viva voce evidence which I found well explained and which I accept.
53 One of the advantages of Dr Weissman giving oral evidence was that he was brought up-to-date in terms of evidence before me about the workplace psychiatric problems that pre-dated the transport accident. He was thus able to address what is the required Petkovski v Galletti[53] analysis in view of what I find is in part an aggravated psychiatric condition. It should be mentioned however that there are fresh injuries in the psychiatric sense, Post-Traumatic Stress Disorder, as well as aggravated injuries. Thus the Petkovski v Galletti analysis is only relevant, in my view, to part of the picture.
[53]supra
54 The evidence of Dr Weissman indicated a very high dosage of medication and the side-effects that the plaintiff has undergone since the transport accident. He speaks about the Zoloft dosage at 300 milligrams in these terms:
“I’ve never seen someone on more than 300 milligrams daily, so 300 milligrams of Zoloft anti-depressant means to me that it’s thought that someone has a severe depression.”[54]
[54]T46
55 He comments in similar terms about the dosage of Seroquel, and he describes that as “a very high dose”.[55] He then says:
“It’s truly used for people who are very agitated and irritable.”
[55]T46
56 I find that there are many side-effects of the drugs that he is required to take for the aggravated psychiatric condition that has been caused by this transport accident. I find also that, whatever the psychological problems he had prior to the transport accident, the substantial increase in the ingestion of medication is a consequence of the aggravation itself caused by the transport accident. I consider the consequences of this can be fairly described as severe. One example is the resultant disability in communication for this man.
57 Dr Weissman further listed a number of consequences that he described as a “severe decline and deterioration of his quality of life.”[56] In addition, the accident has directly caused a severe chronic Post-Traumatic Stress Disorder. These consequences, in my view, have included a serious increase in the level of his stuttering and impact in a very significant way on his social skills.
[56]T75
58 The only specialist psychiatric evidence presented by the defendant is from Dr Nicholas Ingram. He reported four years ago in April 2009, and then again in August 2010, so the comments I have made previously about dated medical material apply to this. It is of only very limited use in assessing the plaintiff now. Nevertheless, in his most recent report, while he thought that the plaintiff had some pre-existing psychological problems as a result of the work stress, he felt the main psychiatric problem “is his Post-Traumatic Stress Disorder”.[57]
[57]DCB 82
59 I have already indicated that I accept Dr Weissman’s view that the Post-Traumatic Stress Disorder was caused by the accident as opposed to being an aggravation. Dr Ingram reduced the causation to a percentage approach and felt that 5 per cent of the plaintiff’s Chronic Adjustment Disorder was related to pre-existing work problems. The primary consequence of the accident was the post traumatic stress disorder which caused a 15 per cent impairment.[58] While these percentages do not assist as such, it confirms that there has been an aggravation of his general psychiatric state. I find that aggravation severe when one does any before and after analysis of the plaintiff. I note also that Dr Ingram found the plaintiff’s stutter was worse at the second consultation compared with the first.
[58]DCB 81
60 The defendant tendered a video that occupied some 30 minutes or so of film, essentially of the plaintiff sitting at a Hungry Jack’s restaurant. This video did not affect any of the conclusions I have already described. I note also that Dr Weissman had the opportunity to view the video and it resulted in an unchanged opinion.[59] A great deal of the video only showed the top half of the plaintiff’s face. There were no strenuous or repetitive activities.
[59]T45
61 The video apparently is 30 minutes out of a total period of surveillance of the plaintiff that came to some 29 hours over four separate days. In my opinion, the video showed nothing that was inconsistent with the plaintiff’s spinal impairment, nor his psychiatric complaints and incapacities. There was very little movement I could detect and none that was relevant. I reject the defendant’s argument that it had any impact on his credit.
62 The defendant’s arguments are, in essence, that on the paragraph (a) application, the plaintiff is a witness whose credit I should not accept, he being both evasive and untruthful. Criticisms remained of his evidence in terms of his recovery from the work stress, as well as what he said about symptoms generally from both the workplace and the transport accident. The video, it was suggested, showed his untruthfulness by way of inconsistency with complaints about movement of his neck, by way of example.
63 I reject the defendant’s argument that his credit was impeached and, in view of the defendant’s concession that its only defence to the paragraph (a) claim is credit, it follows I grant leave pursuant to paragraph (a) for the recovery of damages.
64 The defendant’s position on the paragraph (c) claim is that, in effect, it is a Petkovski v Galletti[60] aggravation exercise. It was argued the plaintiff had a significant psychiatric illness prior to the transport accident which rendered him incapable of work. I accept that. However, I also accept that that condition was resolving at the time of the transport accident. I accept that the work stress was certainly continuing to impact on the plaintiff into 2007 and 2008, but I also accept that by September 2008 it had settled.[61] I find that the psychiatric consequences that the plaintiff suffers from at the present time are due to the aggravation that occurred in the transport accident of pre-existing psychiatric conditions and are due to the additional psychiatric insult (Post-Traumatic Stress Disorder) that the transport accident has caused.
[60]supra
[61]DCB 48
65 For the purposes of judging the extent of the aggravation, I am prepared to accept that all of his psychiatric injury at the present time is properly characterised as an aggravation in spite of the fact that Dr Weissman did indicate there was now a Post-Traumatic Stress Disorder not related to the previous work stress. Nevertheless, looking at the consequences that have flowed from the aggravation, I find that a comparison of the treatment before and after the transport accident is illustrative. Prior to that accident, he had some counselling that continued on at the hands of Mr Philip Byrne, psychologist, but there had been no referral to specialist psychiatric treatment. I do not read Mr Byrne’s report as indicating that the plaintiff had any permanent condition as a result of the workplace stress.
66 I read his report as indicating a resolving condition that is consistent with what the general practitioner described. I find that it is the aggravation that the plaintiff has suffered that presently leads to the consequences that I find are severe under paragraph (c).
67 Post accident, there was a referral by the pain management doctor to the psychiatric specialist, Dr Blandthorn, who saw him on a number of occasions. There was also the involvement of Ms Beth Kilgour, who described some twenty-two visits for psychological counselling post the accident. I contrast this with the amount of counselling that was related to the work stress condition through the period before the transport accident and after the transport accident with Mr Byrne. I also rely on the significant increase in the medication that the plaintiff now requires.
68 In conclusion, I am satisfied the plaintiff has established that the consequences of the long-term impairment of his spine satisfy the test of “serious”. The aggravation to his psychiatric state caused by the transport accident is productive of consequences that can be fairly described as “severe”. In addition, he has suffered chronic Post-Traumatic Stress Disorder as a fresh or new injury and it is also severe in terms of consequences. For these reasons, I grant the plaintiff’s application under both paragraphs for leave to bring proceedings for the recovery of damages.
69 I will hear the parties as to costs.
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