Brayshaw v Transport Accident Commission
[2015] VCC 168
•25 February 2015
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-13-05051
JAMES JOHN BRAYSHAW Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant ---
JUDGE:
HIS HONOUR JUDGE MISSO
WHERE HELD:
Melbourne
DATE OF HEARING:
3, 4 , 9 and 10 February 2015
DATE OF JUDGMENT:
25 February 2015
CASE MAY BE CITED AS:
Brayshaw v Transport Accident Commission
MEDIUM NEUTRAL CITATION:
[2015] VCC 168
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – whether the Post-Traumatic Stress Disorder resulted from the transport accident or from other causes – causation
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Judgment: Leave granted to the plaintiff to bring a proceeding at common law to recover damages for the injuries he suffered as a result of the 1999 transport accident.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr J Moore QC with
Mr C SidebottomEllis Palmos & Co For the Defendant Ms R Annesley QC with
Ms F SpencerSolicitor to the Transport Accident Commission HIS HONOUR:
Introduction
1 By an Originating Motion filed 2 October 2013, the plaintiff seeks the leave of the Court, pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring a proceeding at common law to recover damages for injuries he sustained in a transport accident which occurred on 26 November 1999.
2 The plaintiff claims that he has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder under paragraph (c) of the definition of “serious injury” in ss(37).
3 The defendant conceded that the plaintiff suffered a Post-Traumatic Stress Disorder (“PTSD”) which satisfies the statutory test; however, it denied the plaintiff could demonstrate that the transport accident of 26 November 1999 materially contributed to the onset of the PTSD and if it did, that the 1999 transport accident, together with a number of other events, are responsible for the onset of the disorder.
4 Mr J Moore QC appeared with Mr C Sidebottom of counsel for the plaintiff. Ms R Annesley QC appeared with Ms F Spencer of counsel for the defendant.
5 The following evidence was adduced at the trial:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following evidence:
§ A Public Transport Corporation questionnaire dated 16 January 1992: Exhibit A;
§ His Court Book (“PCB”) pages 8-143; 154-159 and from the Defendant’s Court Book (“DCB”) pages 73-76: Exhibit B;
§ A letter from Freight Australia to the plaintiff dated 29 May 2001: Exhibit C;
· The defendant tendered the following evidence:
§ A schedule of the plaintiff’s taxation returns: Exhibit 1;
§ From the Defendant’s Court Book, pages 1-68; 71-72; 84-90; 94‑ 99; 102-109; 115-120 and 127-138: Exhibit 2.
The transport accident
6 The plaintiff was born in November 1957. He is now fifty-six years of age. He is a single man. He was previously married. He has a son, Timothy, who was born in 1989.
7 The plaintiff was employed by Freight Victoria Limited (“the employer”) as a freight train driver when the 1999 transport accident occurred. He had been employed there since his late teens.
8 The 1999 transport accident was a dramatic event. It was reported in the Ararat Advertiser in its 30 November 1999 edition.[1] The plaintiff was driving a train pulling 22 carriages filled with grain. I gather that the points which govern the direction the train could travel were altered. That meant that the train entered onto tracks which led it into collision with a stationary train.
[1]PCB 154
9 The front page of the Ararat Advertiser displays a photograph of the aftermath of the 1999 transport accident. What is amply clear is that it was a massive collision, resulting in very extensive damage and derailment to the engine driven by the plaintiff and a number of railway carriages.
10 The plaintiff described the immediate prelude to the collision as follows:
Q:“What’s your memory of the circumstances after you came around the bend?---
A:I just remember seeing the employee at the points and then I looked at the points and the lane for the yard onto the other train, and I put the brakes on and I thought, ‘This is it’.
Q:What sort of distance, if you can remember, were you under - was the train under brakes before the collision?---
A:Probably 250 metres.
Q:What was going through your mind?---
A:I thought, ‘This is it,’ and then the sugar bags come in, ‘I’ll be picked up in the pieces’.
Q:You were asked about those sugar bags. It’s part of the history, as I understand it, from Dr Weissman. As you’ve told us, you did hear about another driver who met that unfortunate fate. As the train was under brakes and you were approaching this other vehicle, just the general sense of what you were feeling. Sugar bags; anything else?---
A:I remember when we first seen the points, the co-driver, he tried to run in the engine room and I said to him, ‘Get behind your seat,’ and then I said ‘This is it,’ and then the sugar bags and I was just gone. The next thing I remember I was in hospital, more or less.”[2]
[2]Transcript 122. The reference of the sugar bags is referred to below
11 The plaintiff was removed from the scene of the 1999 transport accident. He was taken to the Ararat Hospital. He became aware of having suffered a head injury; loss of consciousness; amnesia; vertigo; lacerations to his head which required sutures; a fracture to his nose which required surgery and gashes to an elbow, a hand and a shin.[3] The plaintiff’s description of his physical injuries is very brief. He told Dr Turnbull, general practitioner, that the multiple “lacerations” he suffered required approximately 200 sutures.[4]
[3]PCB 9 and Transcript 123
[4]PCB 61
12 The plaintiff and his co-driver were in the engine compartment of the train driven by the plaintiff when they saw the stationary train ahead of them. The plaintiff clearly estimated that the impending collision put him at risk of death. I accept his description of his reaction to the impending collision without reservation.
November 1999 to May 2003
13 The plaintiff was treated at the Ararat Hospital. There is little evidence of what treatment he was provided over the two days he was an inpatient. He was later treated at the St John of God Hospital where he underwent surgery to repair a fracture to his nose. Again, there is little evidence of what that treatment entailed. The substance of the medical evidence, relevant to the treatment provided to the plaintiff, focuses on the PTSD.
14 The plaintiff initially saw Dr Garner at the Caen-Brae Clinic in Ballarat. Following Dr Garner’s retirement, the plaintiff was treated by Dr Marton, general practitioner, at the same clinic. One of the medical complaints treated by Dr Garner, and then by Dr Marton, was the emerging PTSD. Dr Garner referred the plaintiff to Dr Senadipathy, consultant psychiatrist. In his letter of referral dated 18 January 2001, Dr Garner noted that the plaintiff had made a recovery from his physical injuries, but in relation to his psychiatric state, he said:
“… However he continues to experience tinnitus and now complains of lack of energy, lack of appetite, lack of sleep, giddiness and inability to drive a car. In fact he is unable to live by himself in Portland and has been staying with his mother.
When I last saw him it seemed that he was quite depressed in association with his post-traumatic stress syndrome and I would be grateful for your further assessment and treatment.”[5]
[5]PCB 32
15 The plaintiff first saw Dr Senadipathy on 21 January 2000. It would appear that he treated him until 9 May 2003. Initially the plaintiff saw Dr Senadipathy once a week, and then at increasing intervals. At some time prior to 9 May 2003, the plaintiff was seeing him once every three months.[6]
[6]PCB 42
16 In his report to the plaintiff’s former solicitors, dated 20 October 2003, Dr Senadipathy set out his diagnosis:
“… He developed symptoms of post-traumatic stress disorder following a serious railway accident on 26 November 1999. He was the driver of a stationary train at the Ararat railway station that was involved in a head-on collision with another train. Although he was not seriously physically injured he suffered from multiple symptoms of post-traumatic stress disorder.
Presenting symptoms included numbing of emotions, depressed mood, insomnia, flashbacks and recollections of the accident. He suffered anxiety and panic attacks. Concentration and attention were significantly impaired. He could not return to driving for quite some time.”[7]
[7]PCB 42-43
17 Dr Senadipathy worked with the plaintiff to bring the plaintiff to a point where he could return to work as a train driver. In a letter to IRS Total Injury Management (“IRS”),[8] dated 19 May 2000, Dr Senadipathy described the plaintiff’s psychiatric state and the difficulties the plaintiff was experiencing in considering a return to work:
“I have been trying to help him familiarise and overcome the fear in getting into trains and especially engine compartments. He has successfully travelled in a couple of passenger trains, but not regularly enough. The other thing is the very thought of getting into the engine compartment has created further anxiety, exacerbating some flashbacks, nightmares etc.
I have discussed with James confronting the latter with the help of a companion. It may be a good idea if he could come up and organise daily travel in the passenger train for a week or so followed by gradual exposure to the engine compartment and travel in the engine compartment with some one with whom he feels comfortable.”[9]
[8]IRS Total Injury Management was engaged by the employers WorkCover agent, JLT workers compensation, to rehabilitate the plaintiff back into the workforce. It first assessed him on 20 January 2000 - DCB 77-81. It continued in that role until 22 October 2001 - DCB 131
[9]PCB 36
18 Dr Senadipathy treated the plaintiff with Zoloft, 200 milligrams per day; Ducene, 5 milligrams at night, and up to 2.5 milligrams if needed, depending upon his levels of anxiety. He noted that the plaintiff had not demonstrated any adverse effects to the medication. He based that view upon the fact that the plaintiff was able to drive his own car from Ballarat to Portland, and elsewhere, and that he had travelled by train from time to time.[10] This became an issue going to the plaintiff’s credit. The plaintiff described the impact of the medication in a number of ways, including that it turned him into a “zombie”.
[10]PCB 38
19 In a letter to IRS dated 2 March 2001, Dr Senadipathy noted that the plaintiff was suffering from anxiety which was contributing to the plaintiff’s chronic headaches, lethargy and tiredness. He considered that the plaintiff’s state of anxiety was chronically aggravated by the lack of progress in his rehabilitation and uncertainty about his future. Dr Senadipathy had in mind that the plaintiff needed to be gradually exposed to driving trains on a daily basis before undertaking any assessment of his independent driving skills. He noted that the plaintiff was content to take up a position as an instructor in a country area, provided it was a permanent job and would not disappear after his entitlement to WorkCover ceased.[11]
[11]PCB 38
20 In a further letter to IRS dated 3 April 2001, Dr Senadipathy described the plaintiff’s ongoing symptoms at that stage:
“Mr. Brayshaw has made steady improvement in that he is less depressed and less troubled by flashbacks of the accident. The level of anxiety in relation to driving trains remains high. Sleep is unpredictable and depends on the fluctuating level of anxiety. When he is exposed to driving or travelling in trains Mr. Brayshaw develops headaches that would last for several days. The level of anxiety too affects concentration.
His current medications are anti depressant medication Zoloft 200 mg a day and non sedative anti-anxiety medication Buspar 10 mg three times a day.”[12]
[12]PCB 40
21 By that stage, Dr Senadipathy noted that the plaintiff had achieved some improvement, but was far from fully recovered. In that letter, Dr Senadipathy also noted that the plaintiff’s progress had been hampered by two things: first, the plaintiff witnessed two accidents at a railway crossing during his rehabilitation program, and second, the bureaucratic process involved in his rehabilitation. He considered the latter to be the most significant setback.[13]
[13]PCB 39
22 In a further letter to IRS dated 25 May 2001, Dr Senadipathy noted that the plaintiff was experiencing unpleasant side-effects of Buspar. He substituted the Buspar for Ducene. 2.5 milligrams at night. The result was that the plaintiff was able to sleep better, was less anxious, and was able to cope with day-to-day “stressors very well”.
23 The Dr Senadipathy was less than impressed with the attitude of the employer. He considered that the inflexible policy of the employer was preventing the plaintiff from returning to driving trains. Dr Senadipathy considered that returning to driving trains was an essential component of the plaintiff’s therapy. He added that the plaintiff was suffering from PTSD, and being prevented from driving was likely to lead to the plaintiff losing self-confidence, which would be followed by an exacerbation of his PTSD and total disability “in time to come”. He noted that the plaintiff was capable of driving his car in the city and in country areas, which he considered to be more demanding than driving a country goods train.[14]
[14]PCB 41
24 In his report dated 20 October 2003, Dr Senadipathy referred to a number of matters of significance. He referred to the fact that the plaintiff had witnessed “a couple of previous railway accidents”. The plaintiff told him that one of the accidents involved the death of a bus driver, and that there were “a couple more serious accidents”. He also noted that the plaintiff came from a stable family background, had enjoyed a healthy childhood, and was free of any general medical problems or mental health problems prior to the accident. The defendant expended significant effort in delving into the plaintiff’s history between 1987 and 1999, during which time the plaintiff was involved in, or exposed to, a number of events which are said to be significant in determining whether he suffered a serious injury arising out of the 1999 transport accident.
25 It is unclear what history Dr Senadipathy obtained from the plaintiff about his previous mental health problems, or the absence of them. It will become plain from the plaintiff’s third affidavit that he could not recall a number of events which occurred between 1987 and 1999 until he was informed of the contents of his employment records.[15] However, what is clear enough to me is that the plaintiff had no reason to be other than frank with Dr Senadipathy in disclosing what he recalled of any past mental health problems. The fact that the plaintiff did not recall any such problems is consistent with the plaintiff being unaffected by any of his past employment experiences. I will return to this subject later in these reasons.
[15]PCB 24.1 – 24.7
26 Dr Senadipathy’s last word on his treatment of the plaintiff and his opinion regarding the plaintiff’s progress is as follows:
“ He was treated with antidepressant medication, insight orientated psychotherapy and cognitive behaviour therapy. He gradually returned to the employment and is now back in full-time driving. He is free of any significant residual symptoms of the illness and does not suffer from any permanent impairment. He is fit for his pre-injury employment.”[16]
[16]PCB 43
27 The plaintiff did not return to see Dr Senadipathy after 9 May 2003. Indeed, the plaintiff’s medical treatment essentially ceased until he came under the care of Ms Edwards, psychologist, from 13 August 2012.[17] Dr Senadipathy’s relatively short report of 20 October 2003 gives the impression that he had successfully treated the plaintiff to the point where the plaintiff was able to return to work as a train driver full-time. The plaintiff’s account, on the other hand, is dramatically different and seriously at odds with Dr Senadipathy’s view.
[17]PCB 47-48
28 The plaintiff said that he was “pretty well a zombie for three years on all those drugs”.[18] He ended his relationship with Dr Senadipathy because he considered that “he was doing me more damage than good by then I thought”.[19] He said that he was a completely different person, and was “too aggressive, very aggressive” when he took the medication.[20] It was after he ceased taking the medication that he “started to feel human again”.[21]
[18]Transcript 63
[19]Transcript 66
[20]Transcript 126
[21]Transcript 66
29 The plaintiff said that his relationship with Dr Senadipathy ended badly. He described the cessation of that relationship as follows:
Q:“Could you tell us, please, in what circumstances?---
A:I’d been - went up to see him in May 2003 and the police had just me (sic) up a couple of months earlier for a .05 charge and I told him about that. The rest, I can't remember much about it, but he wasn’t too interested and when I left his office he didn’t even say, ‘I’ll see you in a couple of months or three months’. That was it. I just thought, ‘That's it’.
Q:How did you react to that? What was your thinking?---
A:I was that wild. I wanted to get some help and there was no - just, ‘Get out of here,’ was more or less the opinion I got off him, ‘You can go and fight your own life from now on’.
Q:Did you make a decision, firstly, about medicines for your mind?---
A:Yes, I through (sic) them straight down the sink as soon as I - the day that I left his office. I said, ‘I’m sick of being a zombie and bloody getting in fights and drinking and that,’ so I cut back on alcohol and said I’ll get through to my retirement.”[22]
[22]Transcript 126
30 None of the letters and reports of Dr Senadipathy suggest that his relationship with the plaintiff was fraught with problems. Indeed, as mentioned, the letters and reports give the impression that his treatment of the plaintiff led to the plaintiff’s successful return to work and a resolution of the symptoms of the PTSD.
31 Similarly, the large volume of IRS documents suggests that the plaintiff was ultimately rehabilitated back into his employment without any obvious difficulty.[23] The impression I have from the IRS documents is that, to a fair degree, IRS was guided by Dr Senadipathy in its efforts to have the plaintiff return to work.
[23]DCB 77-131
32 Dr Senadipathy provided the plaintiff with a WorkCover Certificate of Capacity dated 28 September 2001. He certified, for the condition of PTSD, that the plaintiff would be fit for normal duties from 24 September 2001.[24] Dr Woolner, general practitioner, also provided a WorkCover Certificate of Capacity. That Certificate is dated 8 August 2001 and certifies, for the same condition, that the plaintiff would be fit for normal duties from 29 August 2001.[25] The plaintiff was living in Portland at the time of the 1999 transport accident. He lived there until about 2006 when the Portland operation of the employer was closed. He was subsequently transferred to Ballarat. The plaintiff saw Dr Myles, general practitioner, and Dr Woolner when he lived in Portland.[26]
[24]DCB 81
[25]DCB 30
[26]PCB 15
33 The plaintiff said that it was intended that he would return to driving trains in about April 2001. That did not occur because of the employer’s concern that the plaintiff would be driving trains while on medication. In any event, the plaintiff said that he probably returned to driving trains by the end of 2001. The IRS progress report dated 7 May 2001 discloses that it was the opinion of the writer of that report that Dr Senadipathy considered the plaintiff to be progressing well in his return to work. Furthermore, the report discloses that the plaintiff confirmed that position to the writer of the report.[27]
[27]DCB 108-109
34 Under cross-examination, the plaintiff strenuously denied that he was progressing well. He said:
Q:“7 May 2001 is p.108, Your Honour. An IRS report and they record a conversation you had with Dr Senadipathy regarding your progress and he advised Mr Brayshaw was progressing very well and that you would continue with the program. So do you recall telling Dr Senadipathy in May 2001 that you were progressing very well with your return to work?
A:I doubt it. I doubt it. I’d say I was very reluctant to return to driving trains and there’s some of the things that I (indistinct) had planned for me. I just, you know, couldn’t get my head around it.”[28]
[28]Transcript 58
35 The plaintiff’s evidence of his reaction to his return to work, and indeed, the work he performed until 2012, resonated with a similar theme of serious difficulty in performing his work. He said, among other things, that he found that after he ceased seeing Dr Senadipathy, he continued working “at a very scary rate”;[29] that he returned to work “under duress”;[30] that his return to work was not successful because he “… was scared stiff driving all the time”,[31] and he had “been scared ever since.”[32]
[29]Transcript 66
[30]Transcript 69
[31]Transcript 69
[32]Transcript 105
36 The plaintiff said that he was able to drive a car around the City of Ballarat. He disagreed with the opinion expressed by Dr Senadipathy that the skills and coordination needed to drive a car were more demanding than driving a country train at 80 kilometres an hour with two other drivers in the driving compartment. He gave a telling answer to emphasise how different he considered driving a car to driving a train. He said “it’s pretty hard to stop a train, so ... ”.[33]
[33]Transcript 61-62
37 The employer referred the plaintiff to Associate Professor George Mendelson, psychiatrist, who examined the plaintiff on 15 March 2001. There were aspects of the history recorded by Professor Mendelson which were put to the plaintiff.
38 The plaintiff told Professor Mendelson that he was driving a train which collided into a semitrailer. He said he was a bit emotional, aggressive and negative following that incident. The incident and its consequences led him to thinking of giving away his work as a train driver. After the occurrence of 1999 transport accident, he lost two stone in weight, but by the time he saw Professor Mendelson, he had returned to his normal weight of 92 kilograms. The plaintiff was unable to recall whether that was so or not. His daily activities included following horseracing and going fishing. He coached an under 16 junior football team at Portland. He played the odd game himself as a fill-in. He was able to live independently, undertaking cooking, cleaning and shopping.[34]
[34]DCB 23-24 and Transcript 77-83
39 The purpose of that cross-examination was to demonstrate that the plaintiff was involved in at least one incident about the time he saw Professor Mendelson which affected his mental state, and that he was functioning at a level consistent with having made a recovery from the PTSD by returning to relatively normal daily activities.
2003 to 2008
40 The plaintiff continued living and working as a train driver in Portland until the end of 2006. He described the work at Portland as not being as busy by 2006. The employer’s operations in Portland were closed in 2006. The plaintiff was transferred to Ballarat, where he worked between 2006 and 2008.[35]
[35]Transcript 71-72
41 The employer’s operations at Ballarat were much busier. The plaintiff worked about 55 hours per week. His standard hours were 40 hours per week. He estimated that he worked about 15 hours overtime per week. Sometimes he worked up to 60 hours per week.[36]
[36]Transcript 72
42 The defendant prepared a schedule setting out the gross income from personal exertion and allowances which the plaintiff earned from the financial year commencing 30 June 1996 through to 30 June 2014.
Financial Year Gross Income Allowances Taxable Income 30 June 2000 $58,820 $2,254 $58,820 30 June 2001 $60,369 Nil $59,923 30 June 2002 $68,997 $4,622 $68,416 30 June 2003 $71,318 $5,013 $70,356 30 June 2004 $74,308 $1,850 $73,684 30 June 2005 $79,878 $2,716 $79,182 30 June 2006 $78,348 $1,301 $77,034 30 June 2007 $82,653 $21,086 $79,033 30 June 2008 $94,283 $23,813 $88,726 30 June 2009 $82,730 $2736 $70,052 30 June 2010 $105,748 $16,937 $92,516 30 June 2011 $94,482 $16,907 $83,403 30 June 2012 $111,104 $15,997 $102,682 30 June 2013 $94,199 Nil $88,070 30 June 2014 $72,849 Nil $59,657
43 The plaintiff admitted that the contents of the schedule are accurate. On my examination, there appear to be some aspects of it which require explanation. For example, for the year ending 30 June 2014, the plaintiff’s gross income was $72,849, but his taxable income was $59,657. There are other similar apparent discrepancies; however, they are of little import.
44 Under cross-examination, the plaintiff was asked about the allowances which he received in the financial years ending 30 June 2007, 2008, 2010 and 2011. The plaintiff denied that the allowances represented overtime. He said that they were living away from home allowances, relevant to the period when he moved from Portland to Ballarat, and, while living in Ballarat, worked in Maryborough.[37] The plaintiff said that during those years, he worked as a train driver. By 2012, his employment designation was “advanced locomotive driver”. He said that was not a promotion, merely a change of name given to train drivers.[38]
[37]Transcript 73-75
[38]Transcript 75-76
45 The plaintiff was referred to the clinical notes of the Caen-Brae Clinic.[39] He attended at that clinic from 13 January 2000 to March 2003,[40] and again on 12 February 2009, when he saw Dr Marton. By that time, the plaintiff was working at Maryborough. He told Dr Marton that five weeks previously he had been involved in the derailment of a carriage, and that he had experienced near misses of kangaroos while driving home at night. He also told Dr Marton that he was drinking excessively.
[39]DCB 42-46
[40]DCB 60-63
2009 to 2012
46 The employer’s operations in Ballarat closed in 2008. Of the six train drivers working at Ballarat, three were transferred to Maryborough, and the other three were transferred to Melbourne. The plaintiff was transferred to Maryborough. It was during his time in Maryborough that the plaintiff’s mental state deteriorated, which led to him ceasing work altogether.
Pre 1999 and post 2009
47 The plaintiff was cross-examined about a series of events which occurred between 1975 and 1999, the purpose being to demonstrate that the plaintiff had a pre-existing psychiatric condition or sensitisation to a psychiatric condition before the occurrence of the 1999 transport accident. Similarly, the plaintiff was cross-examined about a series of events which occurred after the 1999 transport accident, the purpose being to demonstrate that the PTSD, from which the plaintiff presently suffers, is due to, or alternatively aggravated by, those other events. Therefore, it is necessary for me to deal with each one of those events individually.
The Pre 1999 events
48 The first occurred in about 1975. It is recorded in a consultation with Ms Edwards, psychologist. She recorded the following:
“Had multiple traumas.
Age 18 – passenger in serious car accident – driver drunk. Girlfriend at time (ex-wife) in hosp – 6 mths.
Jim – bruising/broken bones okay. Always nervous in cars since – panic attacks if someone else driving.”[41]
[41]DCB 62
49 Under cross-examination, the plaintiff denied suffering bruising and broken bones. He said he lost a front tooth. He said that he suffered panic attacks for a couple of years following that transport accident. He said he also suffered from anxiety. He said he was nervous in cars for a couple of years subsequently, but not since.[42]
[42]Transcript 42-43
50 The next event occurred in 1976. It is recorded in a consultation with Ms Edwards. She recorded the following:
“Also increased memories of other traumatic train related trauma, e.g. @ 1976 (18 yrs old) – cousin a ‘shunter’ (puts carriages together) slipped under a train + lost his leg.”[43]
[43]DCB 65
51 Under cross-examination, the plaintiff said that he felt sorry for his cousin. He said that everyone was more careful after accidents like that, and appreciated the need to be careful when moving trains because of the serious consequences of not exercising care.[44]
[44]Transcript 44-45
52 The next event occurred in 1977. It is recorded in a consultation with Dr Weissman, consultant psychiatrist. The plaintiff told Dr Weissman that at the time when the 1999 transport accident occurred, “sugar bags” went through his mind. He was asked to explain what that meant. Dr Weissman recorded the following:
“He told me that what he meant by ‘sugar bags’: He told me that earlier, in 1977, there had been a train accident in which the driver died. On the day after the train accident in 1977, Mr Brayshaw told me that he found out that the train driver’s body was in multiple pieces, which were picked up and put into sugar bags.”[45]
[45]PCB 75. He also described the same event, but in less detail to Ms Edwards at DCB 65
53 Under cross-examination, the plaintiff said that he did not witness that event. He said that having learnt about that event, it was probably in the back of his mind thereafter.[46]
[46]Transcript 46
54 The next event occurred in 1977. It is recorded in a consultation with Ms Edwards. She recorded the following:
“1977. At the Beaufort Bank turnoff – driver + Jim (fireman) found a dead body under the train before departure … .”[47]
[47]DCB 65
55 The plaintiff was asked very little about that event under cross-examination. He corrected the history recorded by Ms Edwards and said that he and the driver noticed the body out of the window of the train as the train was crawling along. The plaintiff said that he worked in Melbourne from about 1979 to 1987. He said there were multiple suicides on railway tracks by homeless people and Royal Park patients. He said that he needed to be hypervigilant when in the areas where those events had occurred.[48]
[48]Transcript 45-46
56 The next event occurred on 22 May 1978. It is recorded in a consultation with Ms Edwards and the plaintiff’s third affidavit. Ms Edwards recorded the following:
“… There was one significant event in this period of time (November 1979) where Jim was the ‘fireman’ on the train and the train hit a bus head-on and the driver of the bus was killed and thrown onto the tracks. Jim and the driver of the train were exposed to the body for a prolonged period of time. Jim had flashbacks and nightmares to this event for a long time and found it very difficult to sleep. He states he was not offered follow-up counselling or support. He felt he was expected to “get on with it” as a trainee and immediately return to work.”[49]
[49]PCB 50 and the plaintiff's third affidavit at PCB 24.2
57 Under cross-examination, the plaintiff said that he suffered from nightmares about that event for between twelve to eighteen months. The plaintiff denied that he was downplaying the gravity of this event, and indeed, he denied downplaying the gravity of the other events to which he was taken, which occurred prior to and subsequent to the 1999 transport accident.[50]
[50]Transcript 30-31
58 The next event occurred in 1979. It is recorded in consultation with Ms Edwards. She recorded the following:
“Aged 22 ‘attacked by a bloke with a knife on the tracks’ – had to hit him to get away.”[51]
[51]DCB 65
59 Under cross-examination, the plaintiff said that the assailant wanted to cut him with the knife. He did not hit the assailant; he pushed him away.[52]
[52]Transcript 46
60 The next was a series of events of near collisions with other vehicles and pedestrians. It is recorded in a consultation with Ms Edwards. She recorded the following:
“… Mr Brayshaw coped with suburban driving quite well most of the time, despite experiencing multiple ‘near misses of people or cars on the tracks’ where people were attempting to take their own lives … .”[53]
[53]PCB 50. He also gave a similar history to Mr Wilkes, psychologist, at PCB 104
61 The cross-examination which I have referred to in paragraph 55 covered this series of events as well.
62 The next event occurred on 7 May 1983. It is recorded in consultation with Ms Edwards. She recorded the following:
“In 1983/84 Jim was driving a train in Melbourne and had to stop the train as a woman was lying on the track. He and a nurse on the train attended to the screaming woman who had much of her skin peeled off but was still alive. Jim found out she died in hospital some days later. Again he felt he was expected to move on and return to work.”[54]
[54]PCB 50, and at Transcript 36
63 Ms Edwards also recorded that the event just described resulted in the plaintiff suffering persistent flashbacks.[55]
[55]DCB 32, 63 and 64, and in the plaintiff's third affidavit at PCB 24.3
64 Under cross-examination, the plaintiff said that the incident caused him to suffer an acute anxiety state. He said it was a very disturbing incident. He was off work for two weeks. He said that he had experienced nightmares for about six months. He said he has flashbacks, but only when someone talks about the incident, and then it flashes through his mind. He said the incident still causes him a little bit of distress.[56]
[56]Transcript 34 and 37-39
65 The next event is referred to in the subpoenaed records of the employer.[57] In the plaintiff’s third affidavit, he said that he has looked at the records. The records reveal that he suffered an anxiety state in January 1984, and that he was absent from work between 9 and 24 January 1984. He said he was unable to recall the events referred to.[58]
[57]DCB 67
[58]PCB 24.3 and Transcript 40
66 The next event occurred on 14 October 1985. It is referred to in the subpoenaed records of the employer.[59] The plaintiff was the driver of a train that encountered a length of rail lying on the track which nearly led to a derailment of the train. The records show that he suffered “shock”. They do not show that he had any time off work.
[59]DCB 66, and in the plaintiff's third affidavit at PCB 24.3 – 24.4
67 Under cross-examination, the plaintiff said that he got a fright because when the train collided with the rail lying on the track, there was a loud bang. He said objects were found lying across the tracks fairly often, and as a result, he was hypervigilant about safety measures.[60]
[60]Transcript 40-41
68 The next event occurred on 20 July 1987, referred to in the plaintiff’s third affidavit. Vandals threw rocks at the train driven by the plaintiff, resulting in a window being smashed. He said he lodged a claim on 21 July 1987, listing his injury as a “light shock”. He had no time off work, and suffered no lasting psychological injury.[61]
[61]PCB 24.4
69 Under cross-examination, the plaintiff said that the incident had the potential to result in serious consequences. If the window had been open, the rock would have hit him on the head.[62]
[62]Transcript 41
70 The next event occurred in 1987. It is recorded in a consultation with Ms Edwards. She recorded the following:
“In … 1987 Mr Brayshaw was transferred to Portland to country freight train driving where he worked almost entirely at night; often instructing young trainees how to drive. He believes he coped satisfactorily with this role but remained hypervigilant to regular accidents and ‘cars often dodging in and out of the tracks’. Mr Brayshaw was based in Portland for 20 years. In 1993 he obtained his Instructors Ticket - he believes that much of his perfectionist thinking and obsession with checking and detail came from these years of instructing trainees and being hypervigilant to constant risk assessment due to the number of incidents where people attempted suicide by collision with a train.”[63]
[63]PCB 50. He also gave a similar history to Mr Wilks at PCB 102
71 Under cross-examination, the plaintiff said that situations where cars were dodging in and out of the tracks were easy to handle because the train was usually travelling at walking pace. He said that he had not been involved in a suicide attempt. He had been involved in multiple near misses. The risk of suicide attempts and the near misses did cause him anxiety.[64]
[64]Transcript 50-51
72 The events on which the defendant focused commenced in 1975 and spanned a twenty-four-year period up to 1999. What is evident from the defendant’s attack upon the plaintiff is that there were specific events which very probably resulted in the plaintiff suffering an emotional reaction of some kind. In some cases, it was shock. In others, it was fright or anxiety. What is also evident is that the plaintiff did become vigilant because his experiences informed him that certain kinds of events could occur. For example the potential for collisions with cars and pedestrians, encountering objects on railway tracks, and the risk of members of the public committing suicide. My impression from the plaintiff’s evidence is that the latter was relatively rare, and certainly not something he had experienced directly.
73 Many of the plaintiff’s experiences were teased out during his consultations with Ms Edwards. They were experiences which the plaintiff was able to recall, though he was unable to recall all of them, as is evident from the content of his third affidavit. It was only after he looked at the employer’s subpoenaed records that other experiences came to light, which he was either then able to recall, or in some cases, not at all.
74 I do not accept that the plaintiff was sensitised by those past experiences or that they resulted in him suffering a psychiatric condition before the 1999 transport accident. There are a number of reasons why I have reached that conclusion.
75 Firstly, there is no persuasive medical evidence which supports the conclusion that the plaintiff was either sensitised or was suffering from a psychiatric condition.
76 Secondly, the plaintiff appears to have dealt with each of those experiences, and subsequently resumed his normal life. It is very clear that, apart from having very short periods of time off work on rare occasions, he was otherwise fully employed. This demonstrates that he was able to meet the demands of his daily work without any significant interference from his reaction to those experiences.
77 Thirdly, it was my strong impression during the cross-examination of the plaintiff, that he considered that the experiences he had were part of his work as a train driver. It demonstrates that he was able to put those experiences into a perspective and a place. They did not individually or cumulatively create the sort of reaction contended for by the defendant.
78 Despite what I have just said, it is clear enough to me that the plaintiff did become vigilant, and perhaps even a bit fatalistic that there was an associated risk of certain events occurring in the course of his occupation as a train driver. It appears to me that the plaintiff knew that, and adjusted his approach to his job accordingly. There does not appear to me to be anything unusual about that approach. Lastly, I do not accept the defendant’s submission that the plaintiff has downplayed the importance of those other events and experiences.
The post 1999 events
79 The first two events occurred in about July 2000 at Deer Park. This is initially recorded in the history taken by Professor Mendelson. He recorded the following:
“Mr Brayshaw said that in July he had a ‘set-back’ when a train in which he was a passenger was involved in a collision with a car ‘stuck on the railway crossing’, which resulted in a fatality. Mr Brayshaw said that he subsequently ‘got the shakes’ and ‘couldn’t get back on a train’ for about two weeks.
He said that by about October he was able to drive an engine in a shunting yard, but that when he tried to drive a train in November last year he became very tense, and developed a headache.
He said that he was then away from work for a period of time, but subsequently was able to return to work and was driving a train when he was involved in another accident about three weeks ago, when a semitrailer drove onto the train line.”[65]
[65]DCB 23. Professor Mendelson’s reference to “July” must be a reference to July 2000. His reference to “October” and “November” must also be a reference to 2000. He examined the plaintiff on 15 March 2001. The plaintiff gave a similar history to Dr Senadipathy at PCB 39; Ms Edwards at PCB 51; Dr Turnbull, general practitioner, at PCB 61, Dr Weissman at PCB 76; Dr Daniels, psychiatrist, at PCB 107, and to IRS at DCB 87
80 Under cross-examination, the plaintiff acknowledged that the two incidents had occurred. He said that he was set back for a couple of weeks as a result of the incident involving the fatality.[66] He said that the collision with the semitrailer was a major collision. [67]
[66]Transcript 53-54
[67]Transcript 80
81 The next event occurred in February 2001. Its source initially came from Associate Professor Mendelson. I have referred to it in paragraph 80 above. It is the incident where the semitrailer drove onto a railway line. The plaintiff expanded upon that incident in his third affidavit:
“ In or about 2002, a train that I was driving collided with the truck in the shunting yard at low speed. This incident again stirred up the memories and stresses associated with the incident in November 1999. However, the incident itself and 2002 did not cause me any ongoing problems”.[68]
[68]PCB 24.5. The plaintiff gave a similar history to Ms Edwards at PCB 51; Dr Turnbull at PCB 61; Dr Weissman at PCB 76; Dr Daniels at PCB 108 and Dr Doherty, psychiatrist, at DCB 5
82 Under cross-examination, the plaintiff said that the incident with the semitrailer occurred on the first occasion that he resumed driving a train. It set him back in his rehabilitation.[69] It was as a result of that incident that the plaintiff had thoughts of giving away train driving.[70] He said that this event may have something to do with his fear of driving over bridges and fear of heights.[71] He denied the history taken by Ms Edwards and Dr Daniels, that his fear of bridges and heights developed after this event.[72] He disagreed that his anxiety worsened after this event. He said that he had the same problem, meaning the PTSD, since the 1999 transport accident.[73] He said that incidents like this one would result in him feeling edgy and the PTSD intensifying.[74]
[69]Transcript 78
[70]Transcript 80
[71]Transcript 89
[72]Transcript 90
[73]Transcript 90
[74]Transcript 95
83 The next event occurred on 19 June 2002. Its source is a Worker’s Claim Form signed by the plaintiff on 28 June 2002.[75] The plaintiff was driving a train on the Pyrenees loop to Maroona. The plaintiff described the incident in an accompanying statement:
“Departed Murtoa 18.20 and followed EM100 to Pyrenees loop. Home departure signal failed after EM100 locked away at Ararat, caution order issued and proceeded cautiously into the section. Stopped at the down end points at Ararat and found points not locked as red light was not working, moved point lever and red light came on and then proceeded cautiously to Maroona. Detached loco at Maroona and attached a wagon then proceeded to Hamilton and attached H1 and proceeded to Portland.”
[75]PCB 132-134
84 The plaintiff noted on the Worker’s Claim Form that he suffered a “Post Traumatic Stress Disorder”, and his symptoms comprised “Angst, headache, light headiness”.
85 Under cross-examination, the plaintiff explained that there was a signal failure. He was given instructions from Adelaide to proceed at 25 kilometres an hour with headlights on. As a result of the event, he felt unsafe. He agreed that he had three or four days off work. He said he did not hesitate to put in a WorkCare claim.[76] He could not explain why he did not refer to this event in any of his affidavits.[77] Under re-examination, he said that the place where this event occurred was near where the 1999 transport accident occurred. He said he was scared for his safety because of his concern that he might be confronted by another train.[78]
[76]Transcript 93
[77]Transcript 96
[78]Transcript 116
86 The next event occurred on 8 January 2009. It is recorded in the plaintiff’s third affidavit. He described it as follows:
“In February 2009, shortly after I had commenced this new role, [79] I received a written warning for failing to following shunting procedures after an incident where two carriages to riled a few weeks earlier. This incident was due to the inexperience of the trainee driver. I was upset by this incident at the time. I was also upset and annoyed to subsequently receive a warning letter. That said, neither the incident nor the warning letter cause me any long-term concerns.”[80]
[79]The new role involved training new drivers
[80]PCB 24.6. The plaintiff gave a similar history to Ms Edwards at PCB 51; Dr Weisman at PCB 76 and Dr Marton at DCB 58 and 37E
87 Under cross-examination the plaintiff said that he was blamed for the incident. He was demoted and suffered a reduction in his pay. He was upset at receiving a written warning. The incident was very distressing. He did not like being investigated and being blamed for the incident.[81]
[81]Transcript 98-99 and 107
88 The next events encompass 2009 to 2012. The events are recorded in the plaintiff’s second affidavit. He said as follows:
“… I found working at Maryborough between about 2009 and 2012 to be very stressful. I think in large part this was because whilst at Maryborough I was often involved in training trainee drivers. When the trainee drivers drew near the end of their training period, which was three years, they would drive locomotives under close supervision. There were a number of incidents where trainees were driving under my close supervision and did things which I found very upsetting and stressful; such as going too fast in dangerous situations or not appreciating that they had to slow down and wait for tracks to be switched. It was not only me who was training the trainee drivers but other trainee drivers were driving other trains in the vicinity, and this I found very upsetting and the cause of much anxiety. This anxiety and the fact that I was very easily upset by minor incidents all stemmed from the psychiatric injury that I suffered in the transport accident and from which I never fully recovered.”[82]
[82]PCB 17
89 In his third affidavit, the plaintiff added:
“Over the next three years whilst I remained Maryborough, I continued to struggle with my duties. My underlying post traumatic stress disorder, which had commenced following the November 1999 accident, began to resurface. As a result, I began taking quite a lot of sick days throughout this period. I was constantly worried about safety issues – something that I had been obsessive about since my accident in November 1999. Ultimately, by March or April of 2012, I could no longer continue at work. I could no longer tolerate my post traumatic stress symptoms. I was a nervous wreck at work. I have not been back to work since.”[83]
[83]PCB 24.6. The plaintiff gave a similar history to Ms Edwards at PCB 51; Dr Marton at DCB 37E, 44-55 and 53; Dr Turnbull at PCB 61; Dr Weisman at PCB 76-77; Dr Wilks at PCB 103; Dr Daniels at PCB 108; Dr Van der Linden, psychiatrist, at PCB 116-117 and Dr Doherty at DCB 5-6, 8 and 15
90 Under cross-examination, the plaintiff said that he was teaching a few trainee drivers who were “straight off the street”, which I gather meant that they had no previous driver training.[84] He found the work at Maryborough very stressful. It resulted in his psychological condition deteriorating.[85] He said that the job at Maryborough was running him into the ground.[86] It was causing him to suffer stress, which gradually built up.[87] He felt he was coming to the end of his tether in the last couple of years that he worked there.[88] When he eventually sought treatment while working at Maryborough, he felt that he was going to “fall off the planet” unless he got some treatment.[89]
[84]Transcript 48
[85]Transcript 49, 52, 97 and 105
[86]Transcript 107
[87]Transcript 105
[88]Transcript 104
[89]Transcript 67
91 During that period, and in 2010, there was a specific event. The plaintiff consulted Dr Marton on 20 October 2010. Dr Marton recorded that the plaintiff told him:
“stress, almost big MVA last Friday.”[90]
[90]DCB 55
92 Under cross-examination, the plaintiff said that he could not recall this event.[91] Dr Marton recorded in the same clinical note that he had a discussion with the plaintiff regarding a referral for counselling relevant to that event.[92]
[91]Transcript 103
[92]Transcript 55
93 The last event occurred on 29 April 2012, which is the day on which the plaintiff’s mother died. Its source is a consultation the plaintiff had with Ms Edwards. She recorded the following:
“The ‘straw that broke the camel’s back’ and led Jim to see me as a psychologist was the death of his beloved mother in April 2012. He describes realising at this point in time that he could not return to work no matter what anyone said and accepted a GP mental health referral (in August 2012) after the difference was explained to him between a psychologist and a psychiatrist.”[93]
[93]PCB 51. The plaintiff gave a similar history to Mr Eleftheriou, psychologist, at PCB 69; Mr Wilks at PCB 103; Dr Daniels at PCB 108, and Dr Marton at DCB 45 and 50-51
94 Under cross-examination, the plaintiff said that his mother’s death was very upsetting.[94] The anxiety and panic attacks were not helped by his mother’s death, but he accepted her death and got on with things.[95] He had difficulty sleeping in the five years before his mother died. His problems with sleeping increased significantly after her death.[96] He denied that he lost interest in work after his mother died, but said that occurred before she died.[97] His mother dying had nothing to do with him ceasing work.[98]
[94]Transcript 110
[95]Transcript 111 and 112
[96]Transcript 111-112
[97]Transcript 113
[98]Transcript 137
95 Lastly, the plaintiff was referred to the Worker’s Injury Claim Form signed by him on 13 November 2012.[99] He described the injury as:
“FLARE UP OF P.T.S.D.”
[99]PCB 138-139
96 He described how he suffered that injury as follows:
“GRADUAL DETERIORATION.
MULTIPLE TRAUMATIC TRAIN ACCIDENTS.”
97 In answer to a question whether he had previously suffered such an injury, he said:
“YES
1999 HEAD ON TRAIN CRASH.
DEVELOPED PTSD.”
98 Despite what the plaintiff wrote on the Worker’s Injury Claim Form, he said on a number of occasions that it was his opinion that the 1999 transport accident was responsible for the PTSD which prevented him from working by 2012. I accept the plaintiff’s evidence in that respect; however, I will deal with my reasons for reaching that conclusion when I come to analysing the relevant medical evidence.
Is it the 1999 transport accident?
99 I have no doubt that the 1999 transport accident was a devastating event for the plaintiff, to the extent that his perceived threat to his life resulted in him suffering a PTSD.
100 I am fortified in reaching that conclusion because of the evidence of Dr Senadipathy. He initially treated the plaintiff weekly. I infer that he only did so because the gravity of the emerging PTSD required treatment of that frequency. Although his treatment reduced to being intermittent at the end, it nonetheless had a duration of over three years, commencing on 21 January 2000 and ceasing on 9 May 2003. It is, by any measure, significant and substantial treatment.
101 The defendant contends that, by the time the plaintiff had undergone all the treatment provided by Dr Senadipathy, the PTSD had resolved. The defendant relied on a passage from Dr Senadipathy’s report dated 20 October 2003 in which he said the following:
“… He gradually returned to the employment it is now back in full-time driving. He is free of any significant residual symptoms of the illness and does not suffer from any permanent impairment. He is fit for his pre-injury employment.”[100]
[100]PCB 43
102 Dr Senadipathy did not give evidence. Unfortunately, and in those circumstances, I have been asked to interpret what he meant by that last paragraph. The interpretation I give to it is that the plaintiff did have residual symptoms of the PTSD, but that they were not significant at that time. The reference to impairment I think means that Dr Senadipathy considered that the plaintiff’s capacity to function was not impaired at that time. I do not interpret that paragraph to mean that the PTSD had resolved.
103 However, the plaintiff has given an entirely different account of how his relationship with Dr Senadipathy came to an end. Dr Senadipathy’s last report gives the impression that his treatment of the plaintiff came to a satisfactory conclusion because he had achieved a good result for the plaintiff. The plaintiff said that Dr Senadipathy turned his back on him in the face of the plaintiff’s suffering persisting symptoms of PTSD.[101]
[101]
104 The defendant contended, among other things, that the cessation of the plaintiff’s treatment by Dr Senadipathy, and his next episode of treatment in 2009, is persuasive evidence that it was the other events, together with the plaintiff’s work at Maryborough, which brought him undone.
105 I prefer the plaintiff’s evidence overall. I accept his sworn evidence, tested under extensive and searching cross-examination, that the medication did have a deleterious effect upon him and that it turned him into a “zombie”. I accept that he ceased his treatment with Dr Senadipathy for two reasons: firstly, the treatment provided by Dr Senadipathy was productive of the plaintiff’s return to a reasonable level of functioning, which permitted him to return to work as a train driver; and, secondly, there is evidence which suggests that the plaintiff did not like taking medication because of the effects it had on him.
106 The plaintiff was reluctant to see Ms Edwards. That is evident from Dr Marton’s clinical notes. He advised the plaintiff to see a psychologist during a consultation on 18 January 2012.[102] The plaintiff told Dr Marton that he wanted “to wait at present”. It was discussed again at a consultation on 11 July 2012.[103] The plaintiff refused to see a psychologist. He eventually saw Ms Edwards for the first time on 13 August 2012.
[102]DCB 20
[103]DCB 17
107 The question is: Why was the plaintiff so reluctant to commence treatment that had been recommended by his trusted general practitioner? I think the answer lies in evidence given by the plaintiff as follows:
Q:“What did you mean by what you’ve just said to His Honour, you were going to work through to your sick pay?---
A:Once I got the - my GP said to me, ‘We can’t go on like this. You’ve got to see somebody,’ and then he explained to me the difference between a psychologist and a psychiatrist. He said, ‘They just talk to you. There’s no drugs involved. You’re not going to go off your head again,’ so I decided to see Bernadette, my psychologist.”[104]
[104]Transcript 109-110
108 I accept the plaintiff’s evidence that he was reluctant to have any medical treatment after his treatment with Dr Senadipathy ceased. It is evident from the clinical notes of Dr Marton that the plaintiff was being encouraged to seek further medical treatment. His reluctance to have that treatment appears to me to be consistent with his reaction to the medication he was prescribed by Dr Senadipathy, and Dr Senadipathy’s apparent refusal to treat him.
109 What is so patently obvious from the reports of Ms Edwards is that once she began treating the plaintiff, she noted that he was suffering from PTSD with a Depressed and Anxious Mood.[105]
[105]PCB 56-57, and also 47-55
110 The defendant contended that Dr Senadipathy managed the plaintiff’s PTSD more than adequately, because the plaintiff returned to work. He was then able to retain his employment and was able to earn significant income between 2003 and 2012. That, of itself, demonstrated a capacity to fulfil all of the demands of his employment. Furthermore, and according to the clinical notes of Dr Marton, the plaintiff apparently had no medical treatment for the PTSD until he was transferred to Maryborough. The transfer coincided with either a dramatic deterioration in the PTSD, or the emergence of PTSD due to the difficulties the plaintiff endured at Maryborough.
111 I reject the thesis advanced by the defendant. I accept the plaintiff’s evidence that despite the treatment provided by Dr Senadipathy, the PTSD might have simmered, but was still active. I accept the plaintiff’s evidence that the simmering PTSD worsened over time, and that the work he performed at Maryborough was not the cause of the worsening.
112 I propose to now analyse some of the medical evidence which demonstrates that the cause of the PTSD from which the plaintiff now suffers is the 1999 transport accident.
The relevant medical evidence
113 One of the difficulties which I have faced in composing reasons in this application is the fact that I have been required to trace events in the plaintiff’s life commencing in 1975 through to 2012, a period of thirty-seven years. The cross-examination posed the plaintiff the unenviable task of trying to remember events as far back as 1975, particularly, in the setting where he is very evidently suffering from a very serious psychiatric condition. Even remembering events between 2003 and 2009 was no doubt difficult for him, because those events also occurred a fairly long period of time ago.
114 Additionally, the medical evidence was derived from treating and medico-legal consultants numbering some thirteen medical practitioners. I have not summarised all of the medical evidence because I consider it to be an unreasonably burdensome and unnecessary exercise. I say this as there are two medical practitioners who appear to me to have armed themselves with almost the whole of the plaintiff’s pre-injury and post-injury history, putting them in a particularly sound position to answer the causation question: is the PTSD from which the plaintiff now suffers due to the injury he suffered in the 1999 transport accident?
115 Those two medical practitioners are Ms Edwards and Dr Weissman. I will commence with the opinion expressed by Ms Edwards.
116 The defendant relied, to a significant degree, on what was recorded by Ms Edwards of the plaintiff’s pre-injury and post-injury history of the events. It would appear that Ms Edwards employed a technique of teasing out all of the plaintiff’s past history where she considered it relevant in order to treat the plaintiff.
117 Ms Edwards first saw the plaintiff on 13 August 2012. By the time she prepared her first report dated 24 May 2013, the plaintiff had seen her on ten occasions between 13 August 2012 and 15 January 2013. She subsequently saw him on two further occasions, and in particular, on 3 April 2013 for 90 minutes to prepare the report.
118 After giving due consideration to what she learned of the plaintiff during all of those sessions, she said:
“Mr Brayshaw has developed a chronic Post Traumatic Stress Disorder as a direct response to multiple and accumulated train related traumatic events. These symptoms finally broke through the ‘pressure cooker’ after the 1999 train crash and were immediately evident when Mr Brayshaw could no longer intentionally avoid his own traumatic suffering. He did appear to partially rehabilitate to some forms of psychiatric exposure therapy; however I believe he should have been made and inpatient of a PTSD unit at this time, in order to increase the likelihood of his recovery and decrease the probability of benzodiazepine (valium) addiction with binge alcoholism.”[106]
[106]PCB 52
119 Ms Edwards saw the plaintiff on a further ten occasions between 29 May 2013 and 14 May 2014. She expressed a very similar opinion in a report dated 10 September 2014:
“Mr Brayshaw’s condition is a direct result of witnessing numerous multiple traumatic deaths and injuries in his role as a train driver and also from being directly involved in a head-on train collision himself … .”[107]
[107]PCB 55
120 The solicitors for the plaintiff put a number of questions to Ms Edwards to determine the role the 1999 transport accident played in the development of the PTSD. It would appear that was the first occasion that Ms Edwards’ attention was directed to the causation question which became central to this proceeding. In a report dated 27 November 2014, she was asked to answer the following question:
“What role, if any, does the 26th November 1999 train accident play in Mr Brayshaw’s current condition PTSD?”
121 In answer, Ms Edwards said:
“This particular train accident was the significant precipitating traumatic event that led Mr Brayshaw to experiencing: debilitating nightmares, flashbacks, hyperarousal, emotional numbing and severe panic and anxiety. He reports the prior to this event in 1999 he had experienced occasional nightmares and some anxiety, but generally he was a social character who loved to laugh and getting together with friends and family.
It is my opinion, that this accident in November of 1999 was ‘the straw that broke the camel’s back’ for Mr Brayshaw and it was after this his condition became significantly worsened, impacting all levels of his health. Mr Brayshaw was physically and psychologically injured with some 6 months off work, only returning in a minor capacity, and even then, not coping. He described trying to return to a normal routine at work but he felt obsessed about safety, constantly checking everything as a driver and continuously worried something would go wrong; especially if he was training inexperienced drivers at the time. He would replay scenarios over and over in his mind to try and cater for any possibility. These ruminations left him exhausted, not sleeping, unable to focus, often panicked, sleepless and depressed. He described often feeling helpless and suicidal; and began drinking heavily. Furthermore, I believe that his condition gradually worsened overtime (sic) as it was left undiagnosed and untreated and he was simply expected to return to work and ‘carry on’, leaving him feeling increasingly inadequate and helpless.”[108]
[108]PCB 57
122 Ms Edwards understood the conditions under which the plaintiff worked on Maryborough between 2009 and 2012. In summary, she described what the plaintiff told her as follows:
“ His posttraumatic stress symptoms never left him and in fact intensified from 2009 to 2011 when based in Maryborough where Jim describes feeling like he could ‘explode’ i.e. constantly on edge, with poor concentration, regular panic attacks, intense recollections to past accidents, unable to sleep, worry and fear of another accident, irritable with regular angry outbursts especially at his employers for feeling forced to go back to work. In these first 6 months back at work Mr Brayshaw was instructing a trainee who was driving and the train had a derailment. Jim had to take over and protect the trainee who wasn’t coping. He states ‘they blamed me for this as well and even wanted to sack me over it’. Jim took many more periods of work at this time.”[109]
[109]PCB 51
123 Ms Edwards also understood the impact which the death of the plaintiff’s mother had on him:
“The ‘straw that broke the camel’s back’ and led Jim to see me as a psychologist was the death of his beloved mother in April 2012.”[110]
[110]PCB 51
124 The defendant submitted that the ultimate opinion arrived at by Ms Edwards was “sudden” in the context of her previously expressed opinion on causation. I was informed, at the commencement of the proceeding, that the defendant had given notice to cross-examine Ms Edwards. That was abandoned in preference for reliance on Ms Edwards’ clinical notes and reports. I see nothing sudden about the ultimate opinion expressed by Ms Edwards. She was merely asked to do what medical practitioners and paramedical practitioners are so often asked to do, that is, give an opinion on causation. Up until the time the question was posed she had not been asked to consider the contribution of the 1999 transport accident except as part of the plaintiff’s overall history.
125 Dr Weissman examined the plaintiff on 22 May 2013[111] and 31 October 2014.[112] He was provided with all of the relevant reports and documents so that he could understand the plaintiff’s history pre and post the 1999 transport accident.
[111]PCB 71-87
[112]PCB 88-100
126 In his first report, he was provided with four reports of Dr Senadipathy, a report of Ms Edwards and the report of Professor Mendelson. In his second report, he was provided with two further reports of Ms Edwards, a report of Dr Daniels and two reports of Dr Van der Linden. In his third report, he was provided with the three affidavits sworn by the plaintiff, the last report of Ms Edwards, two reports of Professor Doherty and copies of photographs of the head-on train collision.
127 In addition to the foregoing, Dr Weissman took a very extensive history from the plaintiff on each occasion the plaintiff saw him. I have made a tally of the reports and documents provided to Dr Weissman against the indexes in the Court Books. I am satisfied that he was provided precisely what I was provided by the parties, for the purpose of determining the questions raised in this proceeding.
128 In his last report, he dealt with the question of causation as follows:
·“These psychiatric conditions and mental illness are materially, significantly and predominantly due to the transport (train) accident that occurred on 26 November 1999.
·I think that the reported stressful events that occurred during his employment at Maryborough between 2009 and 2012 are a material contributing factor to the above psychiatric conditions and mental injuries, but in a mild manner. In other words they are relevant, they cannot be ignored but they are mild contributing factors.
·The psychiatric, psychological, emotional and behavioural effects of the 26 November 1999 transport accident never fully remitted or resolved. He remained vulnerable, prone and susceptible to an exacerbation or aggravation of his mental state.
·He had a variable work capacity up until 2009 and never return to his full-time pre-injury duties again. In my opinion, his extreme stress with ‘safety issues’ and perceptions that there were accidents ‘waiting to happen’ at Maryborough, are/were related to the original incident in November 1999.
·I accept the plaintiff’s comments in his sworn affidavit dated 21 January 2015 (Sections 14, 15, 16, 18, 19 and 20) that the train accident on 26 November 1999 altered his psychiatric state severely, was never far from his thoughts thereafter, seriously undermined his confidence thereafter, was the most distressing incident that he had been involved in throughout his career, and that still is, to this day, the focus of his thoughts on a daily basis.”[113]
[113]PCB 100.4 – 100.5
129 I note that Dr Weissman obtained a history of the plaintiff’s work at Maryborough directly from the plaintiff,[114] and had the reports of Ms Edwards in which she referred to the plaintiff’s work at Maryborough extensively and fully.
[114]PCB 76-77, 97 and 100.4
130 There are other opinions which support the conclusions reached by Ms Edwards and Dr Weissman:
· Dr Marton considered that the plaintiff would require medication and psychological counselling on a long-term basis stemming from the 1999 transport accident.[115]
[115]PCB 46 – report dated 1 September 2014
· Mr Eleftheriou, psychologist, made a clinical finding that the plaintiff suffered PTSD since the 1999 transport accident.[116]
[116]PCB 69 – clinical assessment made on 17 August 2012
· Dr Turnbull considered that the plaintiff’s PTSD was a result of the 1999 transport accident, and “subsequent incidents”.[117]
[117]PCB 64 – report dated 5 November 2012
· Mr Wilks considered that the plaintiff’s PTSD was a direct primary response to the 1999 transport accident. He also considered that the plaintiff’s work at Maryborough aggravated the PTSD.[118]
[118]PCB 104 – report dated 21 December 2012
· Dr Daniels appears to have accepted that the plaintiff suffered a PTSD for which the 1999 transport accident was a contributing factor.[119]
· Dr Van der Linden considered that the plaintiff suffered a PTSD as a result of the 1999 transport accident. It would appear that he considered that the plaintiff’s condition resulted from the plaintiff witnessing numerous other serious accidents and fatalities.[120]
[119]PCB 111-112 – report dated 8 August 2013
[120]PCB 119-120 and 123-124
131 There is no doubt that all of the medical and paramedical practitioners who I have just referred to, accept that the 1999 transport at least contributed to the production of the PTSD. However, none were provided with the full history that Dr Weissman obtained, nor the near full history which Ms Edwards obtained. I should pause here to observe that when I referred to a near full history, it would appear that Ms Edwards was not provided with the plaintiff’s affidavits. The affidavits contain detail which is of importance, in particular, the plaintiff’s third affidavit, where he said he looked at the subpoenaed employment file and said what he could about the events disclosed.
132 The only other medical practitioner who was provided with a near full history is Associate Professor Doherty. He examined the plaintiff on 27 November 2014. In his report dated 5 December 2014,[121] he set out the “medical material” he was provided. It is not as extensive as the material provided to Dr Weissman, who was not for example provided with the plaintiff’s affidavits.
[121]DCB 1-13
133 Associate Professor Doherty considered that the plaintiff was a nervous and tense person by character before the occurrence of the 1999 transport accident. Despite knowing of what the plaintiff encountered when he was transferred to Maryborough, he does not appear to have considered that it was significant in the causation of the plaintiff’s PTSD. He was asked for his psychiatric diagnosis of the injury which the plaintiff suffered in the 1999 transport accident. He said:
“ The psychiatric diagnosis relevant to the November 1999 transport accident appears to be that of post-traumatic stress disorder which arose directly in response to the circumstances of the transport accident of November 1999 … .
…
Currently I consider that there is present a mild residual PTSD with anxiety, which remains having a material linkage to the 1999 transport accident. There is a psychiatric diagnosis of a remitted condition of alcohol abuse.”[122]
[122]DCB 10
134 In Associate Professor Doherty’s second report dated 5 January 2015, he was asked, or so it would appear, to consider whether the PTSD arose only as a result of the 1999 transport accident. He gave consideration to other potential causes and concluded that the matter of “attribution is complex”. He referred, in particular, to the collision between a train driven by the plaintiff and a truck,[123] and the plaintiff’s transfer to Maryborough, as being significant. He then considered “attribution”:
“ In my opinion the claimant developed a recurrence of a pre-existing post-traumatic disorder psychiatric condition due to the incidents occurring in employment in Maryborough in 2009 to 2012. In my opinion the PTSD that was caused by the 1999 incident, and exacerbated by the 2002 incident had remitted, and appeared to have resolved. He was not in treatment in 2009 when he commence[d] working in Maryborough.
In my opinion the issues occurring in the workplace between 2009 and 2012 have a significant (sic) on the claimant’s cessation of employment and submission of the WorkCover claim form.
In my opinion, the incidents and issues occurring after 2009 have caused or significantly contributed to the current psychiatric condition. The current psychiatric condition is largely due to the matters arising in work since 2009.”[124]
[123]Referred to by Professor Doherty as the "Portland 2002" incident. It occurred in February 2001 – see paragraph 82 above
[124]DCB 15
135 Associate Professor Doherty then said that the 1999 transport accident caused or significantly contributed to the development of the PTSD, that it was treated and in remission and was exacerbated by the 2002 incident. He then said that he considered that the 1999 transport accident and the transfer to Maryborough, sensitised the plaintiff to the effect of further traumatic incidents.[125] He then said that the link between the PTSD and the 1999 transport accident was broken by the successful treatment provided to the plaintiff, which led to his recovery. The “practical effects” of the 1999 transport accident were no longer present by the time the plaintiff was transferred to Maryborough.
[125]DCB 15
136 Associate Professor Doherty’s path of reasoning appears to me to be internally inconsistent. What I take from his opinion is that although the 1999 transport accident resulted in the plaintiff suffering PTSD, his treatment resulted in recovery, but left the plaintiff with a sensitisation to further traumatic incidents. It would appear that he considered that despite the sensitisation, the PTSD, from which the plaintiff now suffers, is exclusively due to the plaintiff’s transfer to Maryborough.
137 The preponderance of the medical and paramedical opinions is that the PTSD, from which the plaintiff now suffers, has resulted, at least in part, from the 1999 transport accident. Ms Edwards and Dr Weissman have expressed an opinion, in much stronger terms, that the PTSD substantially resulted from the 1999 transport accident.
138 Therefore, Associate Professor Doherty’s opinion stands alone. It is not an opinion which I accept. I prefer the opinion of Dr Weissman, principally because he was provided with the plaintiff’s pre-1999 transport accident history, and his post-1999 transport accident, which covered all of the events which the defendant submitted to me were significant in determining the question of causation. Furthermore, I am fortified in preferring Dr Weissman’s opinion because it is consistent with the opinion of Ms Edwards, and the other assessors.
139 Lastly, it is clear that the plaintiff was very close to his mother. His mother’s death had an impact on him. Associate Professor Doherty considered it was of no consequence at all in the production of the PTSD.[126] Whilst others have attributed that event as having some role in the production of the PTSD, it occurs to me that it is of little importance in its production.
[126]DCB 2
Conclusion
140 In summary:
· I am satisfied that the substantial cause of the PTSD from which the plaintiff now suffers, resulted from the 1999 transport accident.
· I am not satisfied that the plaintiff’s transfer to Maryborough is significant. Dr Weissman’s characterisation of its contribution as being “mild” is rather more consistent with it being of minimal importance to the production of the PTSD.
141 Therefore, I grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries he suffered as a result of the 1999 transport accident.
142 I will now hear the parties on the orders that should follow and on the question of costs.
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