Bonilla v TAC
[2015] VCC 1548
•10 November 2015
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for Publication
SERIOUS INJURY LIST
Case No. CI-12-03878
WILFREDO BONILLA
Plaintiff
v
TRANSPORT ACCIDENT COMMISSION
Defendant
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JUDGE:
HER HONOUR JUDGE MILLANE
WHERE HELD:
Melbourne
DATE OF HEARING:
31 July, 3, 4 & 5 August 2015
DATE OF JUDGMENT:
10 November 2015
CASE MAY BE CITED AS:
Bonilla v TAC
MEDIUM NEUTRAL CITATION:
[2015] VCC 1548
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave to recover damages - whether plaintiff discharged onus of proving consequences of injury were severe - disentanglement - causation - aggravation of pre-existing mental health problems - severity of injury - issues of credit
Legislation Cited: Transport Accident Act 1986
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833
Judgment: Plaintiff’s application dismissed
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr G. Lewis QC
with Mr S. Smith/
Patrick Robinson & Co Solicitors
Mr Bird
For the Defendant
Mr A. Moulds QC
With Ms E. Hill
HWL Ebsworth Lawyers
HER HONOUR:
Introduction
The plaintiff is 53 years of age. The personal histories recorded are not consistent. However, as I understood the evidence, the plaintiff was one of nine siblings born in El Salvador. He was raised by his grandparents from shortly after birth.
The plaintiff has five surviving children. He is a grandfather. In late 2014 the plaintiff separated from his wife, Reyna Bonilla, to whom he was married in El Salvador in 1986. Currently he rents and lives in a garage in a rental property, having recently been turned out of a daughter’s home.
The plaintiff was educated to year 12 level and worked as a primary school teacher until 1989 when he left war-torn El Salvador. Apparently, the plaintiff his wife and one child went to Guatemala. The plaintiff illegally entered the USA through Mexico. He was unsuccessful in having his family resettled in the USA and subsequently rejoined them in Guatemala before migrating with his wife and by then two children to Australia in 1991 as refugees.
The plaintiff studied English in Australia. He eventually obtained a full heavy license to drive buses.
Apart from a short stint in 1995 working as an apprentice baker, the plaintiff has driven buses since about 1994. He started by driving minibuses for the Sunshine City Council in a voluntary capacity. Between 1997 and 2010 the plaintiff was employed driving buses by the National Bus Co (the employer).
By Originating Motion filed on 13 August 2012, the plaintiff sought leave to bring proceedings for damages for psychiatric injury suffered as a result of a transport accident on 21 May 2010. On that date, a cement mixer truck driven by an unidentified third-party collided with a bus driven by the plaintiff (the transport accident). The circumstances in which the transport accident and injury to the plaintiff’s psyche occurred were described in the first of three affidavits sworn by him as follows:
16. The accident occurred at around 1 p.m. It was due to the dangerous driving of a cement mixer truck. Two lanes had to merge into one. The truck, which had been driving aggressively tried to overtake me. He was trying to make his way into traffic when suddenly, and without warning, he stopped and swung back in my direction caused me to collide with its rear.
17. The spout of the cement barrel at the back of the truck smashed through two of the windows on the front right hand side of my bus and a passenger were injured. As a result of the accident I was deeply distressed, shocked and unable to return to work.…
18. The truck driver did not stop at all after the accident. He drove off.
19. After the accident someone from the company came to pick me up from the accident scene and I was taken back to the depot. Reyna, my wife, attended and I think it was the next day I attended upon my GP, Dr Lo. Dr Lo gave me some panadeine forte for my headaches and the antidepressant effexor.
20. Dr Lo had given me a certificate for work and I took it back to my workplace. I felt very upset, I was given a negative reaction by Steve, an assistant manager there. The accident itself had traumatised me badly and I was already very anxious and shaking. I have not been able to return to work after this time (sic).
From 2001, treating general practitioner, Dr Lo, treated the plaintiff for symptomatic and chronic mental illness described from time to time as depression and/or anxiety. The SSRI antidepressant, Aropax was one of a number of antidepressant medications prescribed since August 2001 in the treatment of depression. The tricyclic antidepressant, Endep was another medication prescribed from December 2003 mainly in the treatment of insomnia.
It was common ground that on 27 February 2008, after experiencing problems at work, the plaintiff attempted suicide by slashing his wrists (the first suicide attempt). The plaintiff alleged workplace bullying by the employer. The incident involved a WorkCover claim and some two months off work.
On several occasions between 12 March 2008 and 24 April 2015, psychiatrist, Dr Entwisle examined the plaintiff at the request of either the WorkCover insurer or the solicitors acting for the Transport Accident Commission (the TAC).
Less than two weeks after the first suicide attempt, on 12 March 2008 Dr Entwisle obtained a history that indicated both persecution before leaving El Salvador and, once again, a perception of persecution by reason of workplace bullying issues. Based on the content of the psychiatrist report, it was unlikely that the plaintiff’s psychiatric history from 2001 or the circumstances under which particularly the antidepressant medication had been prescribed before the first suicide attempt were part of the history recounted in March 2008. Relevant extracts from the history recorded by the doctor are set out below:
MEDICAL HISTORY
… His most significant health issue is that of a bullet to the right shoulder which was removed at Footscray Hospital two years post his arrival in this country. He received the bullet wound as part of the civil war, during which he was politically persecuted while teaching children at a government school. He was pursued by the military regime. He was shot in 1989. He escaped to the USA where he lived illegally. He left his family behind. He lived in New Mexico. He later reunited with his family in Guatemala and came to this country via a Protection Visa from the United Nations in 1991.
Mr (sic) attends Dr Anthony Lo and since being off work, he takes Aropax, Endep, Panadeine Forte (tension headaches) and is receiving no counselling. He denied any other significant history of illnesses, accidents or operations…
PAST PSYCHIATRIC HISTORY
As detailed, Mr Bonilla was persecuted in El Salvador and had to flee for his life. As a result he is likely to suffer from post-traumatic stress disorder for which he has never received treatment. He therefore is likely to be vulnerable. He denied any family history of psychiatric illness. He did lose some relatives during the war.
…
EDUCATION
He attended the local school in his village and then went to the city where he completed his high schooling to the equivalent of HSC (Baccalaureate), after which he obtained a license to work as a primary school teacher which he did for seven years.
MARITAL HISTORY
In the interval period he married. He then came to the notice of the Authorities because of his work for some reason. He was pursued by the military regime.
He was eventually shot and had to escape to New Mexico and obtained help from the Quakers to assist his wife and family to leave. They reunited in Guatemala and came to this country in 1991…
In 2008 Dr Entwisle advised the insurer the plaintiff was likely suffering from untreated post-traumatic stress disorder (PTSD) as a result of being shot and persecuted in El Salvador. He diagnosed an adjustment disorder with anxious and depressed mood and features of traumatisation, in the treatment of which Dr Entwisle recommended psychological input and counselling to prepare the plaintiff for a return to work. At the time, Dr Entwisle concluded the main barrier to a return to work was the plaintiff’s perception that it was a hostile work environment in which he felt persecuted.
Medical records discussed in more detail shortly, confirm that in the interval between the plaintiff’s return to work after the first suicide attempt and April 2010, he continued to present with significant mental health issues in the treatment of which his general practitioner continued to trial different medications.
During a period of annual leave, in April 2010 the plaintiff’s mental health deteriorated. He was still on leave when, on 4 April 2010, having argued with his wife, the plaintiff attempted suicide by hanging (the second suicide attempt). This led to two periods of hospitalisation and to outpatient monitoring by a CAT team. A different class of antidepressant medication, Pristiq and Efexor (both SNRI drugs) were trialled.
After some weeks in crisis care, the psychiatric diagnosis recorded was: Major Depressive Disorder (MDD) in partial remission and Anxiety Disorder, not otherwise specified.
When, from 3 May 2010, the plaintiff was discharged into the care of his general practitioner he was taking a basic dose of the stronger antidepressant, Efexor (150mg daily), which both Dr Lo and treating psychiatrist, Dr Kumar agreed could be titrated upwards fairly quickly to manage symptoms of depression. According to Dr Kumar, the plaintiff’s symptoms of MDD were likely to respond better to Efexor’s stronger antidepressant qualities than the SSRI antidepressant medications. As the psychiatrist also explained at hearing, he would have expected the dosage of Efexor to have increased to 375mg daily, as it eventually did, irrespective of the transport accident.
The use of the Endep previously prescribed by the general practitioner due to its antidepressant and sleep inducing qualities ceased during the period of crisis care. I infer from the clinical record that on 6 May 2010 the plaintiff requested and was again prescribed Endep (50mg at night), that insomnia was still an issue. Prescription of the opiate, Panadeine Forte and the anti-inflammatory, Mobic, each prescribed over many years in the treatment of tension headaches and rheumatoid arthritis respectively, continued.
As Dr Kumar confirmed at hearing, the plaintiff had been unfit for work during the 5 to 6 week interval between the second suicide attempt and returning to driving buses, on 10 May 2010, some 10 days before the transport accident.
At hearing, the plaintiff said he had not informed the employer about the second suicide attempt and period of hospitalisation because he no longer trusted his employer. Of itself this statement reinforced the impression that, before the transport accident, irrespective of whether as claimed the plaintiff enjoyed working as a bus driver, he continued to view his workplace as a hostile working environment.
The clinical notes kept by Dr Lo confirm an attendance on 22 May 2010 at which time the plaintiff recounted the circumstances of the transport accident and recurrence of symptoms of anxiety and shaking. The plaintiff’s medication regime was not changed, although it appears the doctor provided a certificate for WorkCover. On 28 May 2010 the plaintiff reported he was frightened and unable to sleep and on 3 June 2010 the plaintiff again complained of poor sleep and apparently reported waking: “with thoughts of the accident and being blamed for it”. At hearing, the plaintiff repeated he had been very upset by being told the transport accident was his fault.
Accordingly, as I understood the evidence, on 21 May 2010 and in the days that followed, the psychologically vulnerable plaintiff had been exposed to two significant stressors, the circumstances of the transport accident and what he believed was unfair attribution of blame for this by an employer with whom the plaintiff already had a difficult relationship.
Save for the evidence in plaintiff’s first affidavit that following the first suicide attempt a WorkCover claim had been accepted and references from time to time in the clinical notes to WorkCover issues and payment of compensation, very little was said about the WorkCover claim made following the transport accident.
Currently the plaintiff receives a disability pension.
The psychiatric diagnosis at hearing
At hearing, subject to some variations in diagnoses, treating doctors and medical-legal specialists agreed the plaintiff was psychiatrically incapacitated for all employment by reason of serious, long-term mental illness. Dr Lo, Dr Kumar, the current treating psychologist, Ms Bower and medico-legal psychiatrists, for the plaintiff, Dr Nathar and for the TAC, Dr Entwisle each diagnosed major depressive illness.
Dr Entwisle considered the plaintiff’s illness was of psychotic proportions. Another medico-legal psychiatrist retained by the plaintiff, Dr Wahr, thought the plaintiff had developed psychosis which was currently well controlled by a large daily dose of Seroquel (1000mg). Some doctors, Dr Lo, Dr Kumar, Ms Bower and Dr Wahr, also diagnosed Post-Traumatic Stress Disorder (PTSD).
Dr Entwisle was the only doctor to attribute the plaintiff’s current mental impairment to factors other than his work and/or the transport accident.
The application
The application for leave was made pursuant to section 93(17)(c) of the Transport Accident Act 1986 (the Act). Relevantly, section 93(17) of the Act defines ‘serious injury’ under paragraph (c) as: “severe long-term mental or severe long-term behavioural disturbance or disorder”.
Where, as in this case, the plaintiff alleged aggravation of pre-existing mental health problems he was required to identify the pre-existing injury and its consequences, establish the nature of the injury caused by the transport accident and establish the consequences properly referable to the aggravation injury.
Determination of the application required analysis of the extent of impairment of the plaintiff’s psychological functioning before (including the likely trajectory of this had the transport accident not occurred) and after the transport accident.
Under paragraph (c) of the definition of serious injury, the plaintiff was required to satisfy the Court that any aggravation injury caused by the transport accident was in its consequences both long-term and severe. Authority tells us that ‘severe’ connotes something of stronger force than the word: ‘serious’.
The dispute
The TAC conceded a number of matters. Firstly, the plaintiff’s symptoms at hearing satisfied the narrative test under the Act. Secondly, by reason of mental illness, the plaintiff was totally incapacitated for employment for the long-term. Finally, the transport accident had at least temporarily aggravated pre-existing mental illness.
Accordingly, the central concern in the present application, was to identify whether and the extent to which the transport accident-related aggravation injury had caused additional impairment consequences that were both long-term and severe. The consequences alleged included total incapacity for work, significantly increased treatment and medication regimes, failure of the plaintiff’s marriage and loss of various social and recreational activities. The plaintiff placed particular reliance on the medical evidence of the treating doctors, Dr Lo and Dr Kumar and one medico-legal expert, Dr Nathar.
As to causation, the TAC submitted the evidence of Dr Entwisle indicated how the plaintiff’s pre-accident prognosis and his mental illness would have developed. This psychiatrist attributed the plaintiff’s current psychiatric impairment to pre-existing psychosocial stressors unrelated to his work. As understood by Dr Entwisle, the longitudinal history before 2008, had involved significant exposure to multiple stressors, summarised by the doctor in a further report dated 6 November 2013 as:
Persecution in El Salvador
Refugee status in Guatemala
Migration to the USA and unsuccessful attempts to have his family join him there
Grief from the death of his parents
Migration to Australia in 1991
Death of his 4 year old son
Relationship problems with his marriage and children
Social isolation
Dr Entwisle viewed the current trajectory of the plaintiff’s decline and requirement for treatment as in line with pre-existing, not work-related issues, an opinion he reported had been further enhanced by the recent marital separation and its circumstances.
In short, Dr Entwisle considered the plaintiff’s current mental disorder and any additional impairment consequences arising since the date of the transport accident were the likely culmination of circumstances unrelated to the plaintiff’s work or the transport accident.
The TAC further submitted:
a) the plaintiff had failed to disentangle the consequences of unrelated causative stressors, as for example, the consequences attributed to workplace issues unrelated to the transport accident;
b) if the transport accident-related aggravation injury was unresolved and long-term, the plaintiff had failed to establish that the consequences of this injury were severe.
The evidence
The plaintiff deposed to the accuracy of affidavits sworn on 30 October 2012, 12 November 2013 and 31 July 2015 respectively. The plaintiff, for whom English is a second language, gave evidence with the assistance of a Spanish interpreter. He was cross examined at length.
At the commencement of the hearing the Plaintiff sought leave to add to his Court Book an affidavit of his estranged wife sworn on 31 July 2015. After hearing argument I was satisfied the addition of this document to the plaintiff’s Court Book would not prejudice the TAC. Reyna Bonilla was called for cross-examination. She had a good command of spoken English and gave evidence without the assistance of the Spanish interpreter, who remained available to assist her.
Dr Lo and Dr Kumar were required for cross-examination.
In addition to the affidavit material, the Plaintiff tendered from his Court Book:
• Medical reports from Dr Lo from between March 2008 and July 2015;
• Medical reports from Dr Kumar;
• Medical reports from both treating psychologists, Ms Garcia and Ms Bower; and,
• Medico-legal reports prepared by Dr Nathar and Dr Wahr.
The TAC tendered material from both Court Books comprising:
• Additional medical reports from Dr Lo from March 2008, April 2008 and June 2010, along with his clinical notes;
• Medico-legal reports prepared by Dr Entwisle, psychiatrist, from between March 2008 and May 2015;
• Clinical notes from Dr Kumar/Empathy Healthcare;
• Police report dated 22 May 2010;
• Extracts from Werribee Mercy Health records;
• Witness statement from the Plaintiff.
Three segments of surveillance footage taken on either 24 July or 2 August 2012 were tendered. The dates of surveillance were confirmed at hearing.
Credit
In final submissions, senior counsel for the plaintiff appropriately conceded credit issues had arisen in respect to the evidence of the plaintiff and his wife. I was invited to, and of necessity, focussed on other independent evidence to determine questions of fact. This was not a straightforward task where, as in this case, I was required to identify and compare the extent of the plaintiff’s mental illness and impairment consequences before and after the transport accident.
The witnesses’ account of the plaintiff’s background and longitudinal history and mental health issues was limited, more so in Mrs Bonilla’s affidavit. In his first affidavit the plaintiff gave the following history:
3. I was born and grew up in El Salvador, Central America. Like many El Salvadorian people I am of indigenous ancestry. Whilst living in El Salvador I trained and worked as a primary school teacher.
4. El Salvador had been through turbulent times in the 1980s. I myself had been injured by a stray bullet but recovered well. Despite these difficulties I was able to manage well and was determined to make a better life for my family. I married in 1986.
5. I left El Salvador as a refugee for Guatemala before arriving in the United States in around 1989. I left there and migrated to Australia in 1991.
…
10. For 10 years or more prior to the accident I had experienced on and off anxiety and depression. I had been assaulted and punched by angry passengers in 1999 and 2001. On one occasion the passenger was drunk and armed with a knife. It was a difficult time but I had coped. My wife and I also lost a son born prematurely in 2004.
11. With the help of my GP, Dr Lo and Aropax as a medication, I believed I had this generally under control until around 2008 when I experienced workplace bullying with the National Bus Company.
12. This was a particularly difficult period for me. I attempted at one stage to take my own life by slashing my wrists. I was taken by ambulance to Werribee Hospital and admitted overnight. I was then unable to work for 8 weeks approximately. I made a WorkCover claim for this period which claim was accepted.
13. The National Bus Company arranged for me to see a psychologist named Alex Burns who came to my home for consultations. By around April 2008 I was back at work performing normal duties.
14. Whilst in 2009 I was still experiencing a difficult situation at work. I was able to cope and manage my work reasonably. I also had friends at work. It was not just a case of it completely being a bad environment for me (sic).
15. Whilst I would need to check dates against medical records I estimate there was another suicide attempt in around April 2010. I was admitted to a psychiatric hospital in Sunshine for 2 weeks and then transferred to Werribee Hospital for 4 weeks. I undertook rehabilitation for one and a half months in a place called Park in Deer Park.
…
23. In the past before the accident I have suffered headaches and tension. I also had rheumatoid arthritis in my hands, mainly affecting my thumbs and pointer fingers.
33. … despite the stress, I loved driving the buses. Customers got to know me. I enjoyed the contact that I had with the workers of the National Bus Company that I had got to know over the years. Most of them were good to me. It was a social network for me apart from the El Salvadorian community.
On 31 July 2015, the plaintiff’s wife deposed as follows:
2. We were married on 24 April 1986 in El Salvador, he had been a teacher at the school in which I was a student.
3. I travelled with Wilfredo to Guatemala and subsequently we immigrated to Australia on 4 July 1991.
4. In the mid-1990s Wilfredo commenced driving buses with the National Bus Company. He enjoyed that job very much, particularly the meeting and talking to customers. Generally Wilfredo was an outgoing and happy person, happy to strike up a conversation with new people.
5. I recall a number of incidents when Wilfredo was assaulted in the course of his work. To my impression he initially suffered some problems with depression, but recovered relatively quickly. On a couple of occasions around this time I urged him to cease bus driving, but he refused, saying that he loved the job too much.
6. At the time that we lost our child who was born prematurely both Wilfredo and I suffered significant grief at our loss. We are both devout in our Seventh Day Adventist faith, and our faith helped to reconcile us to the loss, as we believe our son Ishmael, is with God.
7. In about 2008 Wilfred began to experience problems with bullying and harassment at work. As a result Wilfredo became depressed, he expressed feeling worthless, and had trouble motivating himself to do things. At the time of these problems he began receiving medication from his doctor to deal with this problem.
8. The medication seem to be helpful in dealing with his condition. He was able to continue to work as a bus driver, and would be active in the garden. It was an extremely important part of our life to have regular contact with our children and grandchildren. In this period, while he was more subdued, Wilfredo was a loving father and grandfather. He would be active with the grandchildren, kicking a ball and playing with them. We continued to enjoy a close, loving and supportive relationship as man and wife, as we had done for the last 24 years.
…
10. After the accident there was a very significant change in Wilfredo.
Having heard or read the evidence, I was left with significant reservations about the evidence of the plaintiff and his wife. They both demonstrated selectivity in their recall of events and at times demonstrated a marked lack of candour about events, no doubt perceived as unfavourable to this claim against the TAC.
This is not to suggest there was evidence of collaboration. Rather, each witness under-reported the longitudinal history. They either failed to mention or gave evidence the effect of which was to minimise the consequences of chronic mental illness before the transport accident. On occasion they gave contradictory accounts, as when the wife alone deposed medication in the treatment of depression was first prescribed to deal with workplace bullying in 2008.
My discussion of the evidence in due course indicates the main areas of concern and, where necessary, highlights the absence of significant information in the histories obtained by treating and examining doctor’s following the transport accident.
The documentary evidence of likely exposure to persecution and significant trauma prior to leaving El Salvador and to pre-existing mental health and relationship problems was, nonetheless, extensive. This evidence was mostly found in Dr Entwisle’s earliest report to the WorkCover insurer, more than two years before the transport accident and, in the histories recorded in health records, extracts from which were tendered at hearing.
Whilst it can never be assumed that clinical summaries are verbatim accounts of histories reported by patients, I have made findings of fact based primarily on the best available evidence, namely clinical and health records which, in this case, comprised contemporaneous records containing mostly consistent accounts of the plaintiff’s personal and psychiatric history and his treatment up to the transport accident.
Dr Lo’s clinical notes kept from 12 July 2001 over a nine-year period comprised a contemporaneous record of significant pre-existing mental health problems involving ongoing treatment for symptoms of anxiety and chronic depression. Supplemented by extracts from the Werribee Mercy Health records made during February 2008 and April/May 2010, these clinical notes provided strong evidence of likely significant and progressive deterioration in the plaintiff’s mental health and in his marital, family and work relationships before the transport accident.
Dr Entwisle appears to have received a selection of historical records, which no doubt assisted his further understanding of the plaintiff’s longitudinal history when he next saw the plaintiff in April 2012. However, it could not be said that his or the reports of other doctors (Ms Garcia, Dr Kumar, Dr Wahr and Dr Nathar) contained consistent, accurate or informative accounts of the plaintiff’s pre-accident history.
In summary, in this case the value of the plaintiff’s uncorroborated evidence and the corroborative value of the wife’s evidence was negligible and, where medical opinion was based on either inadequate information or appeared poorly informed, this evidence was less helpful than it might otherwise have been.
Personal history and pre-existing mental illness
It is convenient to start with Dr Lo’s clinical notes containing details of the plaintiff’s personal history and treatment of mental health issues in the years before and after the suicide attempt in February 2008, as well as in the interval between the second suicide attempt on 4 April 2010 and the plaintiff’s return to work on 6 May 2010.
The plaintiff first attended Dr Lo for treatment on 12 July 2001. On numerous occasions between 18 July 2001 and 6 May 2010 Dr Lo recorded mental health issues involving symptoms of anxiety and/or depression; tension headaches the doctor thought could be caused by anxiety; insomnia; and epigastric pain. At times, the symptoms reported coincided with relationship problems, marital, family and/or in the workplace. The first suicide attempt occurred in the context of relationship problems in the workplace, whereas the doctor’s notes and oral evidence specifically linked the second suicide attempt to a deteriorating marriage where an argument between the plaintiff and his wife had precipitated the attempt.
A number of important facts can be gleaned from particularly Dr Lo’s clinical notes and discussion of the content by him and Dr Kumar in their oral evidence or by Dr Entwisle, whose report dated 15 November 2013 confirmed access to at least some of these notes. The notes attributable to treatment of mental health issues are discussed in chronological order in the following dot points:
2001 to 2002. Six days after Dr Lo commenced treating the plaintiff on 18 July 2001 he diagnosed anxiety/depression. On this occasion, Mrs Bonilla apparently reported the plaintiff had been too anxious to come out of the house to collect his scripts and had paced: “all last night with poor sleep”.On 20 August 2001 the plaintiff reported bitemporal headaches, which had not responded to Panadeine Forte. Between this attendance and an attendance on 21 March 2003 the plaintiff’s presenting symptoms were frequently ascribed to depression or headaches. Initially, the symptoms of anxiety/depression were treated with Mersyndol. Clearly this medication failed to contain the plaintiff’s symptoms as the SSRI antidepressant, Aropax was prescribed from 27 August 2001 (one, 20 mg tablet daily). Panadeine Forte (at the time of the transport accident up to the maximal dose of 8 tablets daily) has been regularly prescribed in the treatment of headaches since 29 November 2001. Opoid/Codeine Dependence has since been diagnosed. In November 2013, Dr Entwisle noted the entries made in the clinical notes on 18 July and 20 August 2001 evidenced pre-existing psychiatric symptoms of depression and anxiety;
2003. During 2003, among the attendances recorded there were presentations for treatment of depression, tension headaches and insomnia. On 21 March 2003 tension headache and insomnia were diagnosed. The sleeping medication, Temaze was added to the plaintiff’s medication regime (one, 10 mg tablet nightly as needed). On 13 August 2003 Dr Lo doubled the dosage of the antidepressant medication to 2, 20mg tablets daily. As the doctor explained at hearing, the standard dose had not controlled the plaintiff’s symptoms and, at the time, he was attempting to address the chronicity of the plaintiff’s condition. Notably, Dr Kumar saw no reason to disagree with Dr Lo’s diagnosis of chronic depression in this period. He agreed the doubling of the dosage of the Aropax medication was a significant matter. In December 2003 Dr Lo replaced Aropax with Endep, intending at the time to use the one medication to treat symptoms of physical pain, depression and insomnia. This change was short-lived because, within three days, the plaintiff reported an escalation in his anxiety and depressive symptoms. He went back to Aropax and continued taking Endep at night, evidently because the latter drug assisted sleep;
2004. Among the attendances recorded during 2004, there were presentations for treatment of depression and headache. Notably, on 12 February 2004 the clinical notes record an attendance due to: “Family problems”. Some months later, on 29 May 2004 the plaintiff’s young son died. This was one of many traumatic episodes never reported to Dr Kumar. Dr Lo continued to prescribe Aropax, Endep and Panadeine Forte until on 18 August 2004, the plaintiff reported bouts of anger and depression and informed the doctor a psychiatrist had: “put him back onto Lexapro”. At hearing, Dr Lo was unable to recall the name of the psychiatrist, responsible for prescribing this antidepressant. If nothing else this evidence established that, at the time, the plaintiff had been under psychiatric care. The circumstances of this care and any diagnosis were not disclosed by either the plaintiff or his wife to Dr Kumar or as part of the current application. Dr Lo replaced the Aropax and Endep medication with Lexapro (one, 20mg tablet each morning). Subsequently, a Local Medical Officer, not from Dr Lo’s medical practice, replaced this medication with a different class of antidepressant, the NARI, Edronax, ostensibly because Lexapro had caused too much tiredness. On 17 September 2004 Dr Lo prescribed Edronax, 3, 4mg tablets daily because the plaintiff had indicated 2 tablets were not controlling his symptoms. However, within days the plaintiff’s wife reported he was taking 4 tablets daily yet had returned from work depressed and in tears. At hearing, Dr Lo agreed he and other practitioners had been titrating medication in an effort to control the symptoms of chronic and worsening depression. On 20 September 2004 Dr Lo switched to another antidepressant medication, a NaSSA, which combined antidepressant with anxiety and sedative qualities, Mirtazon (also known as Avanza) (one, 30 mg tablet nightly). At hearing, in the absence of more information Dr Kumar was reluctant to accept the proposition that in 2004 the plaintiff was already likely suffering from MDD;
2005. Whilst the clinical notes tendered have not recorded this, as I understood Dr Lo’s evidence at hearing, the plaintiff remained on Mirtazon, until August 2006. Notably, on 28 December 2005 the plaintiff reported symptoms of tiredness and lack of energy in association with stress caused by his younger daughter eloping with a 36-year-old ex-Sunday school teacher;
2006. On 17 August 2006 the plaintiff presented with symptoms and complaints Dr Lo said were indicative of endogenous depression. The entry indicated loss of appetite, insomnia, labile mood, paranoia, anxiety, a loss of 10 kilograms in weight over a few months, reduced contact at church and a request by the plaintiff for medication to reduce his libido, the latter in circumstances where the plaintiff reported sexually violent dreams. On this occasion, the doctor decided to prescribe Aropax (increasing within a week to 2, 20mg tablets in the morning) ostensibly because this medication had worked in the past. At hearing, Dr Kumar agreed the history given by his patient was of concern and and was indicative of an escalating depressive condition. On 23 August 2006 the wife apparently reported her husband was: “a new man on Aropax”, save for symptoms of tiredness and insomnia. The doctor recommended changing the time for taking the medication to 4pm each day;
On 4 September 2006 a bus driven by the plaintiff was involved in motor vehicle accident. This caused a flare-up in the plaintiff’s condition involving ongoing flashbacks of the accident as well as sleeplessness. On 6 September 2006 the plaintiff was treated for anxiety-related insomnia. His usual dosage of Aropax was not controlling his symptoms and the plaintiff required time off work. Dr Lo had been hopeful that the addition of Temaze to the plaintiff’s medication regime would settle his symptoms. However, on 11 September 2006, at the plaintiff’s instigation, the doctor prescribed Endep (one, 25mg tablet nightly) because the plaintiff reported Temaze had not controlled insomnia. On 11 December 2006 Dr Lo increased the dosage of Endep to one, 50mg tablet nightly, I infer to better control symptoms of insomnia;
2007. Among the attendances recorded during 2007, there were presentations for treatment of depression and tension headaches. The doctor continued to prescribe Aropax and Endep throughout 2007. The record that, on 21 March 2007 the doctor referred the plaintiff to Relationships Australia for marriage counselling provided a further indicator of a deteriorating marital relationship. At hearing, Dr Lo confirmed this referral arose from matters the plaintiff reported about family and marital problems. Due to concerns about his patient’s mental health, on 9 July 2007 Dr Lo increased the dosage of Aropax to 3, 20mg tablets (the maximal dosage) to be taken at 4pm daily. The time for taking the medication was intended to minimise the impact of the medication during the plaintiff’s working hours. On 19 November 2007 the doctor changed the dosage of Aropax from 3 tablets at 4 pm to 3 tablets daily at 4 pm. Endep was also prescribed (one, 50mg tablet nightly). At hearing, Dr Kumar said that he would have been worried and would have wanted to check the impact of the combination of medications on the plaintiff’s ability to drive, had the plaintiff bus driver been his patient at the time. On 29 November 2007 (another occasion on which the notes indicated the plaintiff’s wife collected his scripts), the plaintiff’s wife reported her husband looked for fights when he was not taking Aropax. As the doctor explained at hearing, the plaintiff was “not normal” without this medication. The matters reported to Dr Lo during a long consultation on 27 December 2007 indicated ongoing deterioration in the plaintiff’s mental health and in the plaintiff’s relationships with members of his family in Australia. On this occasion the plaintiff reported noticing an epigastric lump, feelings of panic, difficulty with his memory, a concern about ageing: “and going “mental”. Talks to himself when alone. Headaches, shaking hands. No family in Australia, feels like a person walking in a small box. States wife dislikes his mother and has destroyed all addresses to his family.…(sic)”. At hearing, Dr Kumar concluded the symptoms reported (of themselves a cause for concern) reflected an exacerbation of anxiety and panic rather than depression. The psychiatrist, nonetheless, agreed with the proposition that, prior to the advent of the workplace issues in 2008, the longitudinal history recorded in the clinical notes was indicative of a significant depressive condition requiring medication close to the maximum dosage the plaintiff could take without this impacting on his capacity to drive a bus;
2008. Among the attendances recorded in 2008 there were presentations for treatment of depression, tension headaches and presentations citing victimising and unfair behaviour by the employer. This behaviour preceded the plaintiff’s first suicide attempt on 27 February 2008. As already mentioned, in his affidavit the plaintiff deposed the suicide attempt and ongoing conflict with the employer resulted in time off work (eight weeks) and a WorkCover claim. The plaintiff complained to the doctor about harassment and bullying in his workplace in connection with a work-related driving incident on 25 February 2008 and belittlement about his indigenous background. These matters were reported to Dr Lo on 28 February 2008. The report made indicated the plaintiff had been assessed by a psychiatrist at the Werribee Mercy Hospital Emergency Department. His wife described the plaintiff as tearful, shaking and inconsolable. The notes kept for the plaintiff’s attendance and treatment at the Werribee Mercy Hospital Emergency Department, among other things, recorded a history of chronic depression and, according to his family, a history of self-harm episodes in the past with complaint of increased anxiety and poor sleep issues over the short-term. This recorded history was not challenged or explained by the plaintiff at hearing. It appears that the Hospital provided a medical certificate for two days off work and prescribed Temazepam for one night before discharging the plaintiff into the care of his family. On 7 March 2008 Dr Lo recorded a confrontation between the plaintiff and his boss in the context of the plaintiff receiving three warnings. This episode led to another attendance at the Emergency Department. The plaintiff also reported a forthcoming appointment for examination by a WorkCover psychologist on 12 March 2008. Allowing for the date, this was likely the attendance on the psychiatrist, Dr Entwisle, who obtained the detailed history much of which has been set out earlier in this judgement. Dr Lo prescribed Endep (one, 50mg nightly). At hearing, the doctor agreed that at the time the plaintiff had been vulnerable to relapse due to worsening depression from late 2007, irrespective of the workplace events of February and March 2008. It appears that on 19 March 2008 the plaintiff reported an attendance on a Dr Bird in Narbethong, who prescribed vitamin D3 in the treatment of depression. Dr Lo acknowledged he had been concerned at the time by the plaintiff’s “bizarre” complaint of dreams of a female vampire with fangs and claws and his feelings of intoxication. On 26 March 2008 the plaintiff reported symptoms involving poor short-term memory, loss of appetite, restlessness, a feeling that his brain was vibrating, tiredness without being able to sleep, hyperventilation and exhaustion. On 4 April 2008 Temazepam was substituted for Endep because the latter medication had been ineffective in resolving the plaintiff’s insomnia. On 5 May 2008 the plaintiff reported butterflies in his stomach, forgetfulness and a complete loss of libido since the incident. The doctor’s evidence confirmed that throughout this period and the balance of 2008 he prescribed Aropax;
2009. Among the attendances recorded during 2009, there were presentations for treatment of depression, tension headaches and epigastric pain. On 9 January 2009 Dr Lo reverted to prescription of Mirtazapine in the same dosage (one, 45mg tablet nightly) in response to complaint that the higher dose of Aropax was not controlling the plaintiff’s symptoms of depression. At hearing, Dr Kumar was reluctant to accept that this complaint indicated depression so severe it had not responded to medication. As he said, there may have been other stressors in the plaintiff’s family and work life which, in the absence of counselling or other interventions, were perpetuating the plaintiff’s symptoms. Whatever factors were causative of his symptoms, by 23 April 2009 the plaintiff asked to go back on to Aropax because the other medication had not controlled these. On 14 August 2009, during an attendance for treatment of tension headache and epigastric pain the plaintiff apparently reported ongoing victimisation in the workplace. The note recorded a meeting with a union delegate and a supervisor: “whom (the plaintiff) feels is trying to seek revenge against him. Now feeling panicked, headache, burning epigastrium”. The doctor prescribed Nexium, no doubt in the treatment of the epigastric symptoms. Aropax and Endep were prescribed in the same dosages until 9 October 2009 when the Aropax medication was reduced to one, 20mg tablet daily at 4 pm. On 21 October 2009 and 7 November 2009 the plaintiff presented with further complaint of epigastric pain, which the doctor attributed to psychological factors. Relevantly, at hearing Dr Lo said the reduction of the antidepressant medication coincided with a reduction in the plaintiff’s symptoms. Notably, when asked about the significance of the reduction in medication a few months before the second suicide attempt, Dr Kumar explained that the interval between this change and the significant relapse experienced in April 2010 was insufficient to establish any causal link;
2010. During the first three months of 2010 Dr Lo continued to prescribe Aropax and Endep in the same dosages. On 4 April 2010 the plaintiff attempted suicide by hanging in the garage of the family home. He was fortunate in that his wife and 11-year-old son found him. At hearing, Dr Kumar agreed that the second suicide attempt represented a very significant downturn in the plaintiff’s psychiatric illness and had the plaintiff been his patient, he would have been very concerned about the plaintiff’s capacity to return to work as a bus driver at all. The plaintiff did not attend his doctor until 7 April 2010. The notes made by Dr Lo on this date record the plaintiff was: “Feeling alone despite supportive family, does not feel able to cope with angry people, prefers to hurt himself rather than his family. Background of constant headaches and chronic depression despite maximal treatment with Aropax.” Following referral by the general practitioner to the Sunshine Hospital the plaintiff was admitted to the Werribee Mercy Hospital as a voluntary patient. He was discharged on 15 April 2010 into the care of the CAT team. He was re-admitted as an involuntary patient between 23 and 24 April 2010 and, on 3 May 2010, discharged into the care of his general practitioner. Apparently, on advice from the CAT team, on 15 April 2010 Dr Lo changed the plaintiff’s antidepressant medication to Pristiq (one, 50mg tablet daily). This medication was trialled but found to be ineffective. On 6 May 2010, on further advice from the CAT team, the general practitioner commenced prescribing Efexor (two, 75mg tablets per day). In his evidence Dr Lo said he had previously prescribed the antidepressant, Mirtazapine because this medication assisted with symptoms of anxiety whereas Efexor had a more antidepressant effect. Under cross-examination Dr Lo attributed the plaintiff’s depressive condition prior to the second suicide attempt mainly to interfamilial discord and a rocky marriage.
The notes kept by various health professionals working with Werribee Mercy Hospital and the CAT team in April/May 2010 record details of, among other things, the plaintiff’s personal history, the persecution to which he was likely exposed prior to fleeing El Salvador and his relationship difficulties, family/marital and in the workplace. At hearing, having been taken to these, Dr Lo confirmed that various matters recorded in April/May 2010 in the hospital records accorded with his understanding of the plaintiff’s personal history and treatment.
The excerpts summarised below have been selected from hospital and CAT team notes made during the period of treatment in April/May 2010. They help illustrate, among other things, the contrast between, on the one hand, the information recorded about the plaintiff’s history, marital and family relationships and his mental condition prior to the transport accident and, on the other hand, the evidence given and/or information provided by both the plaintiff and his wife to doctors.
The plaintiff was transferred to the Werribee Mercy Hospital for treatment as a voluntary patient following referral by Dr Lo to the Sunshine Hospital. On either 6 April or 7 April 2010 a psychiatrist, Dr Vella recorded, among other things, the following matters:
PERSONAL HISTORY
… In 1989, political threats to teach propaganda led Wilfredo to quit his job and escape El Salvador with his wife and two young daughters. They became refugees in Guatemala…
3 years ago he got a supervisor who wouldn’t allow him to wear culturally appropriate dress (he wore a hat with two feathers to symbolise his dead parents), and she humiliated him and made his work difficult. Wilfredo found this difficult to cope with and it led to worsening in his depression.
… Lives at home with his youngest children and his wife, who has only just started to sleep with him again.
MENTAL STATE EXAMINATION
… Rumination about past losses ++ anhedonic. Worries about lack of respect from family, and fearful of being left alone…
States past month reduced sleep. 2-4 hours per night. Lays awake worrying.
Some reduced appetite over past 2-3/12, weight loss…
DIAGNOSTIC STATEMENT IN FORMULATION
Wilfredo is a 47 year old El Salvadorian man who presents 3/7 post hanging attempt on a 10 year history of GP managed depression. There is a history of multiple past losses and current stresses, as well as social isolation, all reinforcing Wilfredo’s illness. A short admission to devise a complete psychosocial management plan is warranted.
PRESENTING PROBLEMS
… After an argument withi his wife this morning, the attempted hanging occurred in Wilfredo’s garage, into which he had closed himself when she was out. He states he was not expecting to be disturbed. It was an impulsive decision, however, Wilfredo states he has ongoing suicidal ideation and took the opportunity that presented himself. He was subsequently discovered by his mother and their 11-year-old son. He refused medical help at the time, subsequently choosing to attend his GP finally today, who referred him to hospital (sic).
Wilfredo has been subject to a number of major life stressors:
Persecution in El Salvador, including being shot
Refugee status in Guatemala
Migrating to USA alone to unsuccessfully attempt to have his family migrate after him
Grieving for the death of his parents and loss of his country
Migration finally to Australia 1991 without any further family
Death of his four year old son from meningitis
Bullying and discrimination at work 3 years ago that was severe enough to trigger a suicide attempt with WorkCover involvement
And more recently:
Ongoing deterioration of his marriage, he and his wife now sleep in separate beds
Concern that his wife and children don’t respect him
Social isolation...
On 8 April 2010 another psychiatrist, Dr Jindal recorded, among other things, the following matters:
… reported feeling lonely and isolated from his culture missing his home and environment (sic)
Has had experiences of discrimination in the workplace by his superior – the most significant one was 3 years ago – he had cut his wrists after that (sic)
Also, all his children have primarily Australian upbringing – feels rejected and belittled by his children (sic)
One of his daughters has eloped with another man (sic)
Relationship with wife has also been deteriorating in past few years – they have been married for 24 yrs (sic).
The attempt 3 days ago was primarily impulsive – his wife left the house later after he tried to talk to her – felt rejected and worthless – took steps and tried to hang himself (sic).
… Does report some nightmares and panic attacks at times (sic)…
This psychiatrist ascribed the hanging attempt to a situational crisis occurring against a background of cultural issues, family discord and a cluster of personality traits.
Various progress notes made by doctors or health professionals between 11 April and 15 April 2010, among other things, show that aspects of the plaintiff’s personal history and the circumstances in which the second suicide attempt had occurred as summarised above were likely reiterated by the plaintiff over the period of his hospitalisation. These records relevantly indicated the following:
Developed sexual difficulties secondary to either depression or SSDI (illegible). This led to relationship problems with his wife and they (illegible) began to sleep in separate bedrooms. Things worsened and Wilfredo felt lonely when 11y old son who was sleeping in his room moved out to other room. Wilfredo thought he had nobody “Nobody cared for me”. Began to argue with his wife. Attempted hang himself in his garage following an argument (sic)…
Preoccupied with the fact that his family does not provide with him appropriate care and love. Feels he is being victimised at workplace. Feels his 2nd daughter let him down. Feels lonely (sic).…
Became depressed again in the context of relationship problems with wife…
Pt admits to ongoing deterioration of his marriage and feels “isolated” and “scared to be alone”.
Pt has not been sleeping in the same bed as his wife for past 1 year. Pt C/O impotence and loss of sexual desire (sic)…
Had sexual difficulties for past 3 year that led to relationship difficulties with wife.
He is sleeping alone presently and feels lonely and does not see the meaning of life.
… Became a teacher and worked in a school for 7 years. Rebels in his country threatened him and his family. One of his uncles was decapitated and he was shot at.… (sic)…
… Has positive plans to work on marriage difficulties (sic)…
The progress notes kept from 16 April 2010 by the CAT team following discharge home generally indicated ongoing improvement, although there were reports of insomnia, feeling depressed and nightmares. The subject of the plaintiff’s “long-standing problems with impotence” was also discussed.
The notes kept between 23 April 2010 and 24 April 2010 indicated a significant deterioration in the plaintiff’s mental state on 22 April 2010 reportedly in the context of an argument with his wife (“– Client reported that he had an argument with his wife last night prior to marriage counselling at the Church with their pastor – reports that this made him very sad” and “… HAS SOME MARITLA PROBLEMS HAD BIG ARGUMENT WITH WIFE LAST EVENING HAS HAD INCREASING DEPRESSION SINCE THEN (sic)”). This presentation led to an involuntary admission overnight. Notes made on 25 April 2010 suggest that the plaintiff had been unhappy about the circumstances in which he was readmitted to hospital and, in doing so, referenced past episodes of likely persecution (“He acknowledges that he was upset when seen by CATT last, but adamantly denies having had any ideation to harm self or others. He felt the way he was treated brought back memories of being manhandled/threatened by police in the past”).
On 24 April 2010, consultant psychiatrist, Dr Hill relevantly noted the following matters:
Relates dep to work and marital difficulties-particularly wife’s tendency to be controlling/domineering. Pt has no access to own money. She monitors his P/C to his family Says she has been “crazy” since there 4/12 old baby died (also suffered as refugees in Guatemala). She sleeps in a separate room – Wilfredo C/O despair and loneliness due to this. “Everything is controlled by the women in Australia so what am I doing here” (sic)
This wk – “I’ve been all right” except night before last argued with wife re her not sleeping in a bed with him – so sat up alone in dining room… (sic)
On the same date, Dr Hill recorded her impression that the plaintiff was suffering from MDD in partial remission and an Anxiety Disorder, the latter not otherwise specified. Having been apprised of the recorded history at hearing, Dr Kumar indicated his agreement with this diagnosis.
The plaintiff was discharged from hospital with a recommendation that he continue taking Efexor and that the dosage of this drug be titrated as soon as possible.
In the interval before the plaintiff was discharged by the CAT team on 3 May 2010, the progress notes confirm the plaintiff’s mental health improved. The plaintiff made reports in which he indicated to the crisis management team improvement in his relationships with his family and wife and in his sleep. Indeed, on 1 May 2010 the plaintiff’s wife was reported as having said her husband was: “much improved and is happy with his progress – she feels her Hb is back again”. The statement attributed to the plaintiff’s wife was resonant of the earlier report to Dr Lo in August 2006 when Mrs Bonilla reported her husband was a new man, having resumed taking Aropax following a period of significant deterioration in his mental health.
At hearing, additional to his comments on Dr Lo’s clinical notes, Dr Kumar confirmed he had been largely ignorant of historical information essential to assessment of his patient as recorded in the hospital records summarised above. Dr Kumar agreed he had not receive an appropriate account of the plaintiff’s longitudinal history (“… he describes his childhood being the best time in his life…” and “He has been married for the last 25 years.… They have got a good relationship (sic)” ). The history he obtained was given in circumstances where the psychiatrist said he had asked both the plaintiff and his wife about any traumatic experiences when the plaintiff was young or growing up and had explored any longitudinal history of marital problems.
In summary, until he gave evidence, Dr Kumar had not been informed of the following relevant history:
• the earlier persecution in El Salvador, including the shooting of the plaintiff and the decapitation of his uncle;
• the plaintiff’s refugee status in Guatemala and his unsuccessful attempts to have his family enter the USA;
• the plaintiff’s grief for the loss of his country;
• that the plaintiff had been raised by his grandparents;
• that, whilst this was denied by the plaintiff, his indigenous mother may have been taken away by white people;
• the tragic death of the plaintiff’s young son;
• the first suicide attempt;
• the history of marital discord and sexual impotence including the evidence that the plaintiff and his wife had been sleeping separately prior to the second suicide attempt;
• the plaintiff’s concern that his wife and children no longer respected him;
• the plaintiff’s concern about his social isolation.
Moreover, despite having questioned the plaintiff and his wife about any history of depression or anxiety or other psychiatric conditions, Dr Kumar said he had not been aware that treatment of symptoms of depression and PTSD had commenced before the workplace issues of bullying and the like had arisen.
Whilst Dr Kumar had knowledge of a discharge summary from the Prevention and Rehabilitation Centre (PARC) to which Ms Garcia referred the plaintiff in February 2011, Dr Kumar said the plaintiff and his wife had left him with the impression that the plaintiff’s symptoms had arisen in association with the workplace bullying and discrimination and these events had been closely followed by the attempted hanging and its sequel. These symptoms, Dr Kumar thought, had been ongoing and worsened by the transport accident.
The plaintiff’s evidence was redolent of denial of the likely reality of his past. Whether and to what extent, if any, his responses were influenced by his mental illness was not clear. Essentially, the plaintiff either rejected or sought to minimise those parts of his history recorded by Dr Lo, Dr Entwisle or in hospital records inimical to the success of this application. This included denying or minimising the circumstances of likely specific acts of political persecution before he fled to Guatemala and denying or minimising the extent of his problems with insomnia, nightmares and sexual impotence and the problems in his marital/family relationships before the transport accident. Without repeating all of his evidence at hearing, the segments of evidence obtained during cross-examination and re-examination and extracted below help illustrate why the plaintiff’s account of these matters was unsatisfactory:
On the issue of political persecution in El Salvador
Under cross-examination -
Were there political threats to you to teach propaganda? – – – No.
I suggest to you there were such threats and that led you to quit your job? – – – I don’t remember.
Well, I will ask you again, were there political threats for you to teach propaganda? – – – No.
…
Were there threats made to either you or others close to you when you were in El Salvador? – – – No, but there was a lot of death and people disappearing, nothing else.
Nothing else? – – – Nothing that had to do with me.
Nothing apart from you getting shot, were you shot? – – – Yes, that was a time of when I happened to be in the wrong place at the wrong time, there was gunfire going on and it was a stray bullet that struck my shoulder.
…
Was your uncle killed? – – – Yes, he was living at – they never knew who killed him.
He was killed in a very brutal way? – – – Yes, I didn’t live with them.
…
Not only did you tell the person at Sunshine Hospital you were politically persecuted in El Salvador on 6 April 2010 but you also told, I suggest to you a psychiatrist, Dr Entwisle, whom you saw in Richmond in March 2008 that you were politically persecuted whilst teaching children? – – – No, that’s not correct.
And I suggest you that you told Dr Entwisle that you were pursued by the military regime? – – – I have always spoken sincerely in that I have said the country was at war and nobody was safe.
So you affectively had to flee for your life, did you? – – – Yes, the American dream and I wanted to be able to earn more for my children.
I suggest to you that you considered your life to be at risk if you stayed in El Salvador? – – – No, not just mine but everybody’s lives, everybody who was there.
Yes, including you? – – – Everybody, yes.
… Escaping persecution, is that right? – – – No, the situation is that I could have gone back to El Salvador and kept working as a teacher but is just the situation was not very safe and just as today it’s not very safe either with all the gangs there.
…
I suggest you that you told this doctor (a doctor at the Sunshine Hospital) of various life stressors and told the doctor you suffered from persecution in El Salvador including being shot? – – – That I’m not sure about because I don’t remark about anything in El Salvador.
…
I really just putting to you this is what you told the doctor who spoke to you when you were admitted to the Sunshine Hospital, do you understand that? – – – I’ve always talked in general terms about the problems in the country, the violence in general, not necessarily persecution.
During re-examination
Mr Bonilla, you had troubled times living in El Salvador? – – – Not necessarily.
On the issues of sleeping, marital/family and impotency problems –
You had significant sleep problems over the years from 2001 through to 2010, didn’t you? – – – I’m not sure of that, what I do know is now what I have is terrible.
What you have now is terrible? – – – Yes.
So is it the fact you could well have had significant sleep problems before the accident that is the subject of the case but you just can’t recall? – – – Well, the case is that a bus driver has to be completely awake, mentally awake so if that is not kept under control, that not being under control I wouldn’t have been able to return to work.
Is it the case you could well have had significant sleep problems prior to this accident without you being able to remember? – – – I slept quite a lot, I slept a lot because I drive at night and then sleep by day.
…
How were you getting on with your wife at that time (when the plaintiff took annual leave in April 2010)? – – – We weren’t perfect but we were doing okay, I think we were fine.
I suggest you that for at least a year leading up to April 2010 you were sleeping in separate bedrooms, is that right or wrong? – – – Well, what happened was she couldn’t cope because I snore too much.
Is that your evidence, Mr Bonilla is that your evidence, she moved out and moved into a separate bedroom because you snore too much? – – – Yes, she said she couldn’t cope with my snoring, she couldn’t sleep.
When you were admitted to the Werribee Mercy Hospital… in April 2010, you were asked when you were speaking to the people who were trying to help you there whether there had been any problems with your marriage, weren’t you? – – – I don’t remember talking about that, she was there with me.
You don’t remember talking about that? – – – No, because she was there with me.
…
Mr Bonilla, why did you try and do that (the second suicide attempt)? – – – I had stopped taking my medication, I didn’t want to have that medication anymore, I think that was what really upset me and what made me feel worse than ever and led me to wanting to take my life.
When you went to hospital… did you tell anybody you had gone off your medication? – – – I can’t remember, I hardly have any friends at all apart from just those friends at the church and just those few friends at church and may be they might come to the house, that’s all.
What about the nurses and the doctors that were treating you at the hospital, did you tell them you had gone off your medication before you tried to hang yourself? – – – No, I’m not sure, possibly yes, possibly no, I don’t remember.
I’m going to suggest you there is no record whatsoever of you telling anybody that it occurred and they asked you about your medication? – – – I don’t know.
…
Yes, and no doubt you would have been very keen to tell (Dr Lo) that the problem really was that you had gone off your medication, is that right? – – – You will have to ask the doctor because I don’t know, I don’t have that noted down.
And you saw him on 7 April and I suggest to you that you told him that you were feeling alone,…? – – – Yes, my wife was always there.
That you didn’t feel able to cope with angry people? – – – Exactly.
And that you preferred to hurt yourself rather than your family? – – – Possibly, yes.
And I suggest to you that the doctor sent you straight to the Sunshine Hospital where you were admitted? – – – That’s right.
And I suggest you that upon that admission you told the admitting registrar that your wife had only just started to sleep with you again? – – – I don’t remember that.
…
And I suggest you that you also told that doctor (a psychiatric registrar) that more recently there had been ongoing deterioration of your marriage and that you and your wife now sleep in separate beds? – – – I don’t know but it is that I do suffer from this snoring problem so I have always expressed that to doctor and I have always said my wife couldn’t stand that.
I suggest you that you said nothing about snoring, you said nothing about going off your medication to this doctor or any other doctor or nurse at either Sunshine or Werribee? – – – So therefore you need to look at the notes that are at Footscray Hospital, because it was there that I went for that problem, that snoring problem, so it would be there in the notes there.
… And also I suggest you that you spoke to that doctor about concerns that your wife and children don’t respect you? – – – That I don’t remember, I don’t know.
And finally I suggest that you complained to the doctor about social isolation, they are the words that are there? – – – Possibly, I don’t know.
…
And I suggest to you that you spoke to (another) psychiatrist and you reported you were feeling lonely and isolated from your culture and you were missing your home and environment? – – – I don’t know.
That you told that doctor I suggest, of discrimination in the workplace, the most significant one being the episode that led to your wrist being cut? – – – Yes, possibly, I don’t know.
And I put to you that you felt rejected and belittled by your children who were primarily of Australian upbringing? – – – No, I have never spoken badly about Australia.
Haven’t you? – – – Ever.
Did you tell this doctor that one of your daughters had eloped with another man? – – – Yes, that could be so because my daughter did go off with a married man.
And did you tell the doctor that your relationship with your wife has also been deteriorating in the past few years? – – – That I don’t remember.
Did you tell the doctor that the hanging attempt was impulsive, that your wife had left you after you tried to talk to her, that’s left where you were after you tried to talk to her (sic)?….That your wife had left the house after you tried it talk to her and you felt rejected and worthless (sic)? – – – I don’t know.
… And I suggest you that you told the doctor you do have at that point on 8 April some nightmares and panic attacks at times? – – – I don’t remember that either.
Could it be that at that time you were having nightmares such as other people being in your room? – – – I remember experiencing that after the accident.
After the accident? I suggest you that you told the nurse on 8 April 2010 that you fell asleep again after you woke up and you claimed to have had a nightmare, being in other people’s rooms and preferred to be alone: “Claims to have had a nightmare being in other people’s room.”? – – – No.
…
I suggest you that you told this lady (another senior registrar on 11 April 2010) that you had developed sexual difficulties secondary to either depression or your medication? – – – Possibly.
…
And I suggest you that you told this doctor at Werribee, your sexual difficulty led to relationship problems with your wife and you began to sleep in separate bedrooms? – – – Honestly I don’t remember but I do know that the problem’s always been that I snore too much and my wife couldn’t cope with that and that snoring and also because I have been moving her about too much in bed and waking her up.
I suggest that you told the doctor at that time, that is on 11 April, the things worsened when you had to move into your 11 year old son’s room and he moved out into another room? – – – I don’t know.
Well, do you remember a problem with your son moving out from the room you had to move to? – – – I don’t remember that, he before had his own room.
I suggest to you that you were concerned your family didn’t care properly for you? – – – No.
… I suggest to you that you were preoccupied with the fact your family does not provide you with appropriate care and love? – – – I don’t remember ever saying anything against my family.
I suggest to you that you felt you were being victimised at the workplace? – – – It could be that that was so because they were very serious happenings in my life.
I suggest to you that on the same day that you told the nurse,… that you admitted to ongoing deterioration of your marriage and you felt isolated and scared to be alone? – – – I don’t know.
And I suggest to you that you told the nurse you had not been sleeping in the same bed as a wife for the past year? – – – I don’t know.
And I suggest to you that you also complained of impotence and loss of sexual desire? – – – Well, that seems pretty strange because my wife whenever she would want to be intimate with me, she would come into my room to look for me.
Is that what happened, so you say you were separated only by reason of your snoring problem and you maintained a pretty normal sex life with her visiting you or vice versa? Before the accident, then after with the medications know, because they were such strong medications.
Is it your evidence on your oath to Her Honour that before the accident you had a normal sex life with your wife? – – – Yes, but possibly I mean it wasn’t every day because I have never been a demanding person.
… and I suggest on 19 April which is about the middle of that period, where they (the CAT team) were visiting you for a week or so, that you told the person who was seeing you that you had long-standing problems with impotence? – – – I don’t remember that.
…
… What I’m suggesting to you is that on 23 April you reported to the CAT people who are psychiatric nurses that you had experienced a panic attack the night before? – – – I don’t remember that.
And I put to you that you reported to those nurses that you had an argument with your wife the night before prior to marriage counselling at the church with the pastor? – – – Honestly I don’t know ever calling up any pastor to be our counsellor.
…
I put to you that at that time you told the nurses that you had a panic attack last night and were having difficulty breathing and that you felt scared that someone may break into the house through the window? – – – I did remark on that, I did but that was to Dr Kumar.
You see, what you have been reporting to Dr Kumar is you don’t feel safe in your house, is that right? – – – Nowadays I don’t, that’s right.
I’m suggesting to you a month before this accident you had exactly the same thoughts and feelings? – – – I don’t know, I don’t remember.
…
I suggest to you that you told the psychiatrist who was by the name of Mr Hill, that you related your depression to work and marital difficulties? – – – That I can’t be sure of because they put me in there involuntarily, I didn’t want to go to hospital.
I suggest to you that you told the psychiatrist that the marital difficulties were particularly your wife’s tendency to be controlling and domineering? – – – I don’t know if that was so but, you know, you always have problems in the home, I mean that’s normal.
….
I suggest you at the time you saw this psychiatrist on 24 April Mr Bonilla, that you told him that, “Everything is controlled by the women in Australia so what are you doing here (sic)?”? – – – That I never said, I have never spoken badly about Australia, I like this country, I’m happy here and the fact that may be some people might have treated me badly, that’s no fault of Australia.
In her evidence the plaintiff’s wife acknowledged that she had been treated for depression since 2009 and, for the three years preceding the hearing she had been seeing a psychologist and taking antidepressant medication.
It is not necessary to repeat the wife’s oral evidence in detail. Cross-examination of the plaintiff’s wife, among other things, revealed the following.
The recorded history satisfied me that Mrs Bonilla had been closely involved with her husband’s treatment and the medications administered by doctors in the nine plus years over which the plaintiff was treated for mental health problems before the transport accident. Among other things, Dr Lo’s notes indicated that, more than once before the events of 2008, Mrs Bonilla had communicated with him about her husband’s medication in the treatment of significant symptoms of depression. Moreover, at hearing, Mrs Bonilla conceded that at times she had collected scripts from the doctor’s surgery on her husband’s behalf. In these circumstances, the wife’s affidavit and oral evidence of and concerning these matters and a later emphatic denial that the plaintiff took sleeping tablets prior to the transport accident was implausible.
Mrs Bonilla did, however, concede at hearing that the plaintiff was being prescribed medication before the bullying episode in 2008:
It could well be he was receiving regular antidepressant medication before that time? – – – He was getting medication before, you know, but he all the time was going back to work.
So it is incorrect to say, “he began receiving medication at the time of these problems”, in fact the truth is he was receiving medication before those problems, isn’t it (sic)? – – – Yes.
The impression conveyed by Mrs Bonilla’s affidavit and in her oral evidence that nothing else had occurred between 2008 and the transport accident in 2010 was not credible. As her evidence confirmed at hearing, Mrs Bonilla was very familiar with the circumstances surrounding the second suicide attempt yet sought to explain her failure to mention the second suicide attempt in the affidavit on equally implausible bases: she had not been asked to say something about this event and the event had not sprung to mind at the time the affidavit was being prepared.
The indication in Mrs Bonilla’s affidavit that the plaintiff began to experience problems with sleep for the first time after the transport accident, was likewise untenable. At hearing, she sought to rationalise this evidence by comparing the plaintiff’s sleep patterns before (“… But sometimes he could not sleep, he just wake up, go and drink water, come back and sleep like that. But no nightmares, nothing like that” and “No, no, I don’t know if I explain properly, it’s not a problem that every day he was going to sleep or problems with sleep, every single day, it was just sometimes”) and after the transport accident (“… It’s that he was always waking up with nightmares and he was dreaming he was going to crash a car or hit a person and he wakes up and shaking all the time” ).
Having initially denied they had ever slept in separate bedrooms before the transport accident, Mrs Bonilla appeared to concede this point. She, nonetheless, rejected the further proposition that her husband had problems with sexual potency prior to the transport accident when she said replied he: “was getting troubled but he was acting like a man as well, you know. He’s not an everyday person but after the accident he couldn’t – he was impotent altogether”. Whilst acknowledging that English was not Mrs Bonilla’s first language I was not satisfied this witness misunderstood the substance of the questions put in this regard.
When considered as a whole, the evidence summarised above helped persuade me that the omission of relevant longitudinal details from other medical reports and the affidavits was likely mostly due to selectivity in imparting information, not the effect of time or the psychiatric condition on the plaintiff’s ability to recall these matters or, for that matter, the effect of time on Mrs Bonilla’s memory.
Based in the main on the documentary records and the general practitioner’s clinical records and oral evidence, the picture shortly before the transport accident was of psychological vulnerability in the context of past traumas and chronic and deteriorating mental illness. Over a period of more than nine years, consistent with worsening mental health and despite changes in and attempts to titrate medications prescribed to control symptoms of depression, anxiety and insomnia, the plaintiff’s mental health had progressively worsened.
The plaintiff was an individual who, rightly or wrongly, believed he was being treated unfairly and victimised in the workplace. The plaintiff had a history of insomnia, from time to time, associated with nightmares. There was family and marital discord and he viewed his family as unsupportive. There were problems with sexual impotency and, whilst still living in the family home, there was an established pattern of marital discord and separation, such that the plaintiff and his wife slept apart.
By early May 2010, following the second suicide attempt, with a period of intensive treatment and monitoring involving two hospitalisations, crisis care and management and trial of an antidepressant with stronger antidepressant qualities, Efexor, the plaintiff’s mental state had stabilised and his relationships with his family and his wife had improved. As mentioned, a treating psychiatrist with the mental health service diagnosed, MDD and Anxiety Disorder, the former in partial remission. When discharged to the care of Dr Lo the Efexor medication had been titrated to half the daily maximal dosage of 375mg.
The plaintiff had returned to driving buses, albeit without notifying the employer of the recent significant breakdown in his mental health.
In his affidavits and at different times during the course of medical examinations the plaintiff asserted that, as a consequence of the transport accident, activities previously enjoyed by him such as, horse riding for hours most Sundays, breaking in horses, fishing with his son-in-law, gardening and regular attendance at Church had ceased. Notwithstanding the failure to cross-examine on these matters, absent independent corroboration, I could not be satisfied of the frequency or the extent to which the plaintiff engaged in any of the activities described by him in the lead up to the second suicide attempt, much less in the interval between his return to work and the transport accident.
Causation according to treating doctors
Dr Lo
The clinical notes kept by the general practitioner in the two months following the transport accident record reports of insomnia and nightmares in association with the transport accident. As mentioned, on 3 June 2010 the clinical notes record: “Poor sleep, wakes with thoughts of the accident and being blamed for it”.
Following the transport accident Dr Lo provided certificates of incapacity and a WorkCover claim was made. Dr Lo’s advice to the WorkCover insurer on 4 June 2010, among other things indicated ongoing problems between the plaintiff and the employer whom the plaintiff felt had not received the report of his psychological condition sympathetically. As to the plaintiff’s progress, Dr Lo relevantly reported: “Medication has helped patients mood. Symptoms are improving. Patient perceives unsupportive employer attitude is impeding his recovery.”
Later clinical notes indicate the plaintiff continued to be certified unfit for work, despite having, on occasion, expressed his desire to return to work. For instance, on 12 August 2010 and 10 September 2012 respectively the doctor recorded: “Seen PSYCHOL this week. Feeling better this week but still advised by PSYCHOL not to return to work yet due to risk of recurrence” and “Ball of anxiety in abdomen is resolving. … Hopes to return to work in 6/12”. The plaintiff never returned to work. He deposed his employment was terminated in July 2011.
From 1 July 2010 the general practitioner doubled the dosage of Efexor to the maximal dose of 375 mg daily. Whilst at hearing Dr Lo said the transport accident had played a large part in increasing this medication, as mentioned, Dr Kumar evidence satisfied me that titration of this class of antidepressant to a maximal daily dosage would likely have occurred without the intervention of the transport accident.
As to causation, on 13 June 2011, among other things, Dr Lo advised the plaintiff’s solicitors the plaintiff’s mental condition had been aggravated by stressful incidents suffered in the course of his employment. Under cross-examination, the doctor confirmed his opinion in this regard was unchanged. The suicide attempt was, he agreed, a manifestation of the plaintiff’s underlying and progressive depressive condition. The argument with the plaintiff’s wife had been the precipitating event.
As recorded in the doctor’s notes, complaints of insomnia persisted. It was not, however, clear from the evidence as a whole whether and, if so, to what extent the plaintiff’s worsening mental health and specifically the symptoms of anxiety and nightmares/flashbacks he reported between the latter part of 2010 and early 2013, were referable to the transport accident.
Under cross-examination, Dr Kumar relevantly indicated:
his opinion that the second suicide attempt involved an impulsive act in response to an argument with the plaintiff’s wife, rather than a planned suicide;
his agreement with the diagnosis of MDD (a classification which now incorporated both endogenous and reactive depression) in partial remission;
May 2010 he would have been hopeful that the plaintiff’s symptoms would better respond to Efexor, a medication with a stronger antidepressant quality than some of the other medications, which in the past had not affected the chronicity of the plaintiff’s mental illness;
that had this been assessed in the weeks before the transport accident, there was a possibility the plaintiff may not have been able to continue to work in the future. However, usual clinical practice was to try and get a patient better and back to the workforce and their normal lives.
The doctor’s responses elicited through re-examination relevantly indicated the following matters:
the plaintiff’s exposure to trauma in his formative years had predisposed him to psychiatric illness;
notwithstanding stressors due to workplace issues and marital problems, the plaintiff had continued to function to a certain degree until the transport accident (and, I interpolate here, until he formed the view, rightly or wrongly, that his employer unfairly blamed him for the transport accident);
he determined the impact of a traumatic event by reference to the social and occupational impairment or the dysfunction caused by the event.
To summarise then, over some 3 ½ years of treatment before the hearing date, this treating psychiatrist had not gained a proper understanding of his patient’s longitudinal history. In fact, in the early years of treatment, when asked, Dr Kumar had emphasised the nexus between workplace bullying issues and the reported post-traumatic symptoms.
For the reasons already articulated, Dr Kumar’s evidence failed to satisfy me that the plaintiff’s pre-accident prognosis was good or, more specifically that psychological incapacity for employment in the foreseeable future was only a possibility.
Moreover, assuming the correctness of Dr Kumar’s stated approach to determining the consequences of a traumatic event, his evidence was of less assistance than it might otherwise in view of the failure to consider to what extent, if any, the pain and suffering consequences alleged were attributable to work-related trauma or issues.
The medico-legal evidence of causation
As mentioned, the plaintiff placed particular reliance on Dr Nathar’s medico-legal assessments and reports in January 2013 and in May 2015 respectively.
The main criticism of Dr Nathan’s evidence was that his opinions were not informed by a detailed longitudinal history and, in formulating his opinion, he had wrongly assumed certain facts (I infer based on information supplied to him by the plaintiff); for example, that the marriage was previously a good marriage and that the second suicide attempt had occurred in the context of difficulty in coping with workplace discrimination.
Having read Dr Nathar’s reports, I concluded that, whilst the psychiatrist had a broad understanding of the plaintiff’s circumstances particularly from 2001 onwards, he had not had the benefit of considering the information contained in the health records particularly for the period April/May 2010; he had never been asked to analyse how the plaintiff’s psychiatric condition would have progressed absent the trauma associated with the transport accident; and, for the purpose of this proceeding he had not been asked to separate out the workplace issues and the additional trauma associated with the plaintiff’s perception of being unfairly blamed for the transport accident.
Leaving to one side for the moment the fact that the plaintiff had returned to work shortly prior to the transport accident, the premise underpinning the doctor’s conclusion that the plaintiff had some anxiety and depression and was functioning reasonably well socially and emotionally before the transport accident was against the weight of all of the evidence.
Those parts of Dr Nathar’s advice extracted below whilst confirming the severity of the plaintiff’s mental health problems after 21 May 2010, nevertheless, help illustrate my concern about the extent to which this specialist’s evidence assisted the plaintiff in establishing the matters he was required to:
On 29 January 2013
The nature and extent of his psychiatric conditions are that of a moderately severe Chronic Major Depressive Illness with features of post-traumatic stress disorder and panic disorder. I believe that given the history obtained, his psychiatric disorders had been a result of a combination of a series of traumatising features at work where he alleged he was being discriminated, harassed and bullied due to his racial and ethnic origin; as well is contribution from a number of emotionally traumatic incidences as a bus driver. This situation over many years had given rise to Major Depression, panic disorder and PTSD. However, the motor vehicle accident of 21st May 2010, which resulted in a very traumatic experience for him and for which he claimed that he was blamed and not supported by his (employer), had been also an additional major significant contributing factor to the worsening of his psychiatric disorders that have arisen in the workplace.
… The long-term effect of his psychiatric injuries alone as a result of the motor vehicle accident on 21st May 2010 would have a more than significant impact upon his ability to enjoy his full range of social and recreational activities. At least prior to the 21st May 2010, notwithstanding the presence of psychiatric disorders, he was still able to work. However, his work capacity I believe was permanently and totally destroyed by the 21st May 2010 incident and he will never be able to return in my opinion to pre-injury or alternative duties.…
On 18 May 2015
Since I last examined him, Mr Bonilla continues to suffer from a moderately severe degree of Chronic Major Depressive Illness, Chronic Panic Disorder as well as Chronic Post Traumatic Stress Disorder. I believe there was a pre-existing Major Depression and Anxiety and PTSD, probably from early 2000 which was related to some emotionally threatening experiences as a bus driver.
Later on he alleged harassment and bullying at work worsening his underlying psychiatric problems but he was still working until the circumstances arising out of the motor vehicle accident which were not only emotionally traumatic for him but also he considered that his employer was not supportive of him in dealing with the accident circumstances. For example, he alleged his employer even blamed him for causing the accident. So this motor vehicle accident in the course of his work as a bus driver which happened on 21st May 2010 caused a major escalation of his underlying psychiatric problems.
I would consider therefore that his psychiatric injuries are consistent with the stated cause and had arisen out of employment, that he had pre-existing problems aggravated significantly by the accident.
I believe that he would really need ongoing and maybe even lifetime psychiatric and psychological treatment as well is community support.…
The psychiatric injuries aggravated and for (sic) arising out of the accident on 21st May 2010 have caused more than a significant reduction in his ability to attend to his full range of social and recreational activities and to attend to his activities of daily living. Prior to the motor vehicle accident, notwithstanding that he had some anxiety and depression, he was functioning reasonably well socially and emotionally and was still able to work. However, that had not been the case since the accident.
In addition, the worsening of his psychiatric disorders from the accident had caused him to be totally and permanently incapacitated for his pre-injury and alternative duties. At least prior to the past accident he was able to work even in a work environment that he considered to be difficult and stressful. However since this accident he has been far too ill and I believe he will never work again, nor will he be a good candidate for any retraining into alternative duties.
Dr Wahr
As mentioned, the plaintiff did not rely on Dr Wahr’s evidence to establish matters of causation.
There were two examinations on 28 February 2013 and again on 21 May 2015. Three reports were tendered.
The history received by Dr Wahr on 28 February 2013, particularly with regard to the timing of the suicide attempts was confused. Based on the material before the court, the plaintiff likely underreported the earlier traumas to which he was likely exposed and, as far as I could tell, Dr Wahr had little in the way of detail concerning the plaintiff’s treatment for depression from 2001 until the transport accident.
Among other things, the plaintiff described disturbed sleep, nightmares that involved him killing people in the bus, flashbacks to the transport accident and sexual impotence. Dr Wahr diagnosed PTSD constituting an impairment of 50 percent, 15 percent of which pre-existed the transport accident with 35 percent attributed to the transport accident.
Having been appraised of the timing of the second suicide attempt some six weeks before the transport accident, Dr Wahr adjusted his apportionment of psychological impairment to 30 percent for the transport accident and 20 percent for pre-existing factors.
On re-examination in May 2015, Dr Wahr had access to a selection of materials which included reports from Dr Lo and Ms Garcia and the earliest of the reports submitted by Dr Kumar and Dr Nathar. He did not, however, have the opportunity to consider any of Dr Entwisle’s reports.
On this occasion, among other things, Dr Wahr concluded the plaintiff suffered from PTSD and an underlying psychosis which the doctor believed was well controlled by the large dose of Seroquel taken by the plaintiff. However, for reasons that which were not apparent from this report this time Dr Wahr said that the PTSD condition constituted an impairment of 50 percent, 15 percent of which pre-existed the transport accident with 35 percent attributed to the transport accident.
In view of the limited history available to him I was not satisfied that Dr Wahr’s evidence provided an adequate analysis and delineation of the probable level of mental impairment absent the transport accident. Moreover, his reports failed to distinguish between the plaintiff’s workplace issues and transport accident issues.
This brings me to the TAC’s expert evidence and Dr Entwisle’s multiple reports.
Dr Entwisle
As already mentioned, in 2008 Dr Entwisle diagnosed untreated PTSD as a result of the plaintiff being shot and persecuted in El Salvador as well as an adjustment disorder with anxious and depressed mood and features of traumatisation.
When he re-examined the plaintiff at the request of the WorkCover insurer on 30 April 2012, among other things, the psychiatrist noted the plaintiff presented as emotionally distressed. Essentially, the plaintiff described a reclusive, isolated lifestyle. He reported he did not normally shower and spent most of the day in pyjamas; he restricted contact with members of his family and he had withdrawn from most activities, including driving (“he does not drive because he gets lost in the streets” ) and walking. The plaintiff said his meals were eaten in his bedroom and his days were spent there listening to relaxation CDs, reading the Bible or watching TV.
The plaintiff apparently reported a return to work on normal duties following the first suicide attempt until the transport accident. The second suicide attempt was not mentioned in the report.
According to the report, the doctor was told by the plaintiff that prior to the transport accident: “he had been closely watched by the company and it was his perception that they had been trying to sack him “so many times””.
Dr Entwisle diagnosed Major Depressive illness with possible psychotic features. In his report to the WorkCover insurer, Dr Entwisle remarked as follows:
… Mr Bonilla presents as a very unwell man who has retreated into a world of illness conviction, fear and depressed mood. His presentation is somewhat idiosyncratic and aspects of it are bound up with his cultural and religious beliefs. It was my original opinion that a number of factors including his traumatic past history in El Salvador, together with a number of religious beliefs, had rendered Mr Bonilla emotionally vulnerable, and together with work-related perceived factors, he had developed a psychiatric condition marked by anxious and depressed mood and features of traumatisation. Subsequent to his return to work and continued perceptions that his employer was unsupportive, a minor accident has tipped him once again into a symptomatic condition. That aggravation appears work-related set against his pre-existing issues.
I have not been provided with much in the way of information or details as to his current treatment. It appears that essentially he had some form of a breakdown and was referred to the local Mental Health Clinic where he has been prescribed psychotropic medication in large doses. There are suggestions that Mr Bonilla may well suffer from a psychotic illness but again, no details are available in that respect. He currently attends a Psychiatrist and a Psychologist and his condition remains of concern. Under those circumstances, his current treatment is appropriate. Details from Dr Kumar would be of assistance, as would information from the local Mental Health Clinic.
Whilst the theme of persecution in a hostile workplace had persisted, it is unlikely that when he wrote the 2012 report, Dr Entwisle had a good understanding of the extent to which the plaintiff’s mental health had declined between the first suicide attempt and the transport accident. However, where as in this case, the plaintiff was involved in another accident when driving a bus in the course of his employment, Dr Entwisle’s conclusion that the aggravation of the plaintiff’s pre-existing psychiatric condition appeared work-related, was at the time, to my mind, unremarkable.
In a supplementary report on 17 July 2012, Dr Entwisle appeared to respond to additional information, the details of which were not also tendered. The supplementary report again mentioned a breakdown and referral to a local Mental Health Clinic with prescription of psychotropic medication in large doses. However, without more I was unable to determine whether Dr Entwisle had been by then appraised of the second suicide attempt. What was apparent from this report was that any further information received by him had not persuaded Dr Entwisle to alter his view that non-work-related matters were primarily responsible for the plaintiff’s psychiatric condition. He stated as follows:
As indicated, this is a matter in which it appears that a large number of non-work-related issues as well as a minor accident in May 2010 are involved. Mr Bonilla cessation of employment originally occurred on 24 February 2008 following a number of meetings in respect to his uniform, being late, etc. It is my overall impression that Mr Bonilla’s condition essentially relates to non-work related matters.
It appears that, shortly after Dr Entwisle submitted his report, the WorkCover insurer obtained surveillance footage of the plaintiff on 24 July 2012 and 2 August 2012. Three segments of films were tendered.
Having viewed the film at hearing I was satisfied that, within months of his presentation to Dr Entwisle on 30 April 2012, the film captured a much greater range of activity and engagement than reported by the plaintiff. Whilst limited to short periods in time, the film reinforced my view that the plaintiff tended to exaggerate or minimise his circumstances according to how he perceived their impact on his claim.
Dr Entwisle apparently formed a similar view. In his opinion the film called into question the plaintiff’s veracity and description of his physical and psychological condition. The film depicted the plaintiff in various activities, including cleaning and vacuuming a motor vehicle, accompanied by his wife driving to a shopping centre, filling petrol and checking the tyre pressures of a vehicle in a service station and, whilst attired in street clothing, walking in the street with his wife. At the time the plaintiff was carrying a young child in his arms.
The plaintiff sought to explain his presentation and the activity shown on film by stating that he had been encouraged by his psychologist to lead a normal life. At hearing, among other things, the plaintiff agreed he had driven to the petrol station, although he claimed that he never went out by himself and only travelled short distances. As the film showed, the plaintiff accompanied his wife into the hospital and, in doing so, he was seen carrying his grandson to and from the Hospital. The plaintiff told the Court on that occasion his wife had asked him to accompany her to look after his grandson, which he did whilst she attended the doctor.
The plaintiff’s evidence as to whether he drove to the hospital between Hoppers Crossing and Richmond was at best equivocal. At first the plaintiff said his wife asked him to drive but at some stage at her insistence he had swapped with his wife because she was unhappy with his driving. However, when pressed to identify who drove into the car park or drove home the plaintiff indicated he was unable to recall. In the circumstances described, I was not satisfied by the plaintiff’s uncorroborated evidence that he had not driven the full journey to and from the hospital.
This is not to deny the medical consensus at hearing to the effect that the plaintiff was a broken individual afflicted by severe and likely long-term mental illness, which rendered him psychologically unfit to return to any employment.
When Dr Entwisle re-examined the plaintiff on 18 October 2013, he did so at the request of the TAC’s solicitors. At the time, substantial documentary material was made available to Dr Entwisle. This included the plaintiff’s first affidavit, Dr Lo’s report dated 13 June 2011, the Werribee Mercy Mental Health records dated 27 February 2011, the Discharge/Separation Summary from PARC dated 5 April 2011 and a report from a Dr Okedara dated 4 August 2011. It appears that the last mentioned report, one of a number of documents mentioned but not tendered, was connected with the PARC materials.
Both the affidavit and Dr Lo’s report mentioned the second suicide attempt, albeit briefly. This event was not recounted either in the detailed summary of the earlier assessments or in the matters recorded by Dr Entwisle following the further assessment on 18 October 2013. Rather, I concluded the statement in the report that the plaintiff had been admitted to Mercy Health in Werribee following an overdose probably referenced the admission to the PARC rehabilitation facility in 2011.
The report, nonetheless, recorded the following matters which, among other things, indicated the presence of symptoms of psychosis and some referencing of the transport accident:
MEDICAL
…
He attends Dr Kumar in Werribee once a month. Dr Kumar provides him with advice in regard to his various fears over the darkness at night. He pulls a blanket over him. He feels that there is someone in the room. He sees them out of the corner of his eye and is afraid. Dr Kumar tells him it is nothing and to deal more realistic (sic) with those concerns. The medication is helping. He sleeps a bit better.
… He can’t seem to get the fears out of his head. His troubled by evil and scary things and sometimes the bus crash and the situation at work. “It was a really bad accident”.
…
EMOTIONAL STATE
…
Anxiety – He fears the night.
SPECIFIC PSYCHOLOGICAL SYMPTOMS
Sleep – He dreams of evil things.
…
MENTAL STATE EXAMINATION
…
Affect – His affect was restricted. He appeared sedated due to the combination of heavy doses of powerful psychotropic agents. He did not appear well. He related in a rather fragile manner but was cooperative throughout. There was considerable injury focus in regard to the work experiences which according to him had overtaken the significant pre-standing matters of trauma and other issues (immigration, deaths etc.). Eye contact was reasonable and rapport occurred at a sufficient level for him to complete the assessment.
On this occasion, Dr Entwisle concluded that the plaintiff’s Major Depressive illness had worsened, despite various treatments received and his admission to PARC in 2011.
As earlier mentioned, in 2013 Dr Entwisle reported the current trajectory of the plaintiff’s decline and the requirement for treatment related to pre-existing issues, not work-related issues (and I interpolate here that the use of the term “work related issues” was intended by the doctor to encompass the transport accident as another work-related issue).
In Dr Entwisle’s opinion the plaintiff had not adjusted well to life in Australia and his pre-existing family and other issues had combined with those difficulties to overwhelm him to the point where he was now a psychiatric invalid who relied heavily on his wife and involved himself in only a very limited sense with his family. Dr Entwisle’s view was that the more recent work-related matters did not explain the plaintiff’s vulnerability or symptomatology.
Having re-examined the plaintiff and considered additional materials including various reports from treating doctors and medico-legal specialists (including reports from Dr Lo, Dr Kumar, Ms Garcia, Dr Nathar and Dr Wahr) and the PARC Discharge/Separation Summary, in May 2015 Dr Entwisle remained of the view that the plaintiff was suffering from worsening Major Depressive illness with psychotic features, his psychiatric condition had been further negatively impacted upon by factors unrelated to the transport accident and the current trajectory of plaintiff’s decline and requirement for treatment was aligned with pre-existing rather than work-related issues.
Based on the pre-accident history recorded in the documentary evidence summarised so far, I concluded that the criticism of the psychiatrist’s opinion that the plaintiff had not adjusted well to life in Australia and of his understanding of the plaintiff’s pre-existing history (even without reference to the second suicide attempt) was probably misplaced. In short, I formed the view that Dr Entwisle’s understanding of the plaintiff’s longitudinal history and pre-existing family and other issues before the first suicide attempt was reflected in the documentary evidence so far summarised, which also tended to support Dr Entwisle’s assessment of long-standing adjustment issues.
No doubt, more information about the plaintiff’s treatment for mental health problems before the first suicide attempt and about the second suicide attempt and the marital disharmony which likely triggered this act and details of the mental health interventions and medication prescribed in the interval prior to the transport accident would have given Dr Entwisle a better understanding of the extent to which the plaintiff’s mental health had declined prior to the transport accident. However, in my view, the absence of this information had not reduced the overall efficacy of Dr Entwisle’s opinion that pre-existing factors best explained the plaintiff’s progressive psychiatric decline and requirement for treatment.
In short, there were deficiencies in the information available to each specialist. Most had not been asked to specifically address various issues relevant to determination of this application. Doing the best I could with the evidence presented, I was satisfied that of the specialist opinion available, Dr Entwisle’s final opinion as to the nexus between the plaintiff’s current psychological state and the transport accident was best aligned with the evidence overall.
Conclusions
As required, I have already identified the plaintiff’s pre-existing psychiatric diagnoses, which by 2008 probably included likely untreated PTSD and an adjustment disorder with anxious and depressed mood and features of traumatisation and, by April 2010 likely involved MDD and Anxiety Disorder. I have also identified and considered the nature and extent of the likely impairment consequences of his condition. The latter were significant and under-reported by the plaintiff.
The plaintiff continues to suffer from Major Depressive illness, with some evidence of psychosis and/or PTSD.
I have rejected the submission made on behalf of the plaintiff to the effect that, having improved sufficiently to return to work on 6 May 2010, if assessed before the transport accident, the plaintiff’s impairment levels would not have met the serious injury test.
As required, the TAC led evidence of the plaintiff’s pre-accident prognosis, that is the likely trajectory of his pre-existing illness and, having had an opportunity to consider all of the evidence, I formed the view that the plaintiff’s long-term mental health prognosis prior to the transport accident was likely poor.
On any fair reading of the evidence, the plaintiff’s mental health had been in decline and difficult to manage for many years. In May 2010 the plaintiff had been assessed as requiring treatment with a stronger anti-depressant medication at maximal dosage as well as medication to address long-standing problems with sleep, at times disturbed by fearful and distressing nightmares. Faced with deteriorating mental health, the prospects of the plaintiff maintaining over the long-term employment or functional relationships, whether in a marriage, the latter in crisis for some years or with his family or sustaining other social and recreational activities was probably poor and the likelihood that the plaintiff would require greater medical interventions was high.
If my reliance on Dr Entwisle’s evidence is misplaced, I nonetheless concluded the plaintiff had failed to discharge his burden of proof.
There were a number of issues arising with respect to causation. In this application, my concern was to determine whether any aggravation of the plaintiff’s psychiatric condition was the result of the transport accident. The TAC conceded that the transport accident had aggravated the plaintiff’s mental condition. However, as my discussion of the evidence has shown the perception that the employer unfairly blamed the plaintiff for the transport accident and work-related issues were likely additional sources of aggravation both at the time of and subsequent to the transport accident.
This was a case where disentanglement was required. Understandably, many doctors viewed the transport accident as a work-related issue and had not distinguished between the consequences of unrelated stressors arising from work-related issues and any long-term consequences of the transport accident alone.
The evidence led in this case and summarised at length, largely failed to disentangle the consequences of unrelated causative stressors and, to the extent that consequences of aggravation injury caused by the transport accident persisted, failed to establish that these were, objectively speaking, severe.
In these circumstances, I propose to dismiss the plaintiff’s application.
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