Byers v Kitco Transport
[2019] VMC 5
•16 August 2019 Byers v Kitco Transport [2019] VMC005
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
Case No. J13025483
| DARREN BYERS | Plaintiff |
| v | |
| KITCO TRANSPORT AUSTRALIA PTY LTD | Defendant |
MAGISTRATE: | J GRAINGER |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 June 2019 |
| DATE OF DECISION: CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | 16 August 2019 Byers v Kitco Transport [2019] VMC005 |
CATCHWORDS - Plaintiff suffered injuries (post-traumatic stress disorder) arising out of or in the course of his employment with the defendant following a truck accident on 7 March 2015 – Plaintiff not diagnosed with PTSD until 15 December 2017 - Defendant admitted plaintiff’s employment with the defendant was a significant contributing factor to his injuries – Whether plaintiff was incapacitated for his pre-injury employment as a truck driver from date of accident – Whether plaintiff’s employment injury with defendant resulted in or materially contributed to his incapacity for work – Whether plaintiff’s failure to give medical experts a complete and entirely accurate history raises doubts about probative nature of medical reports.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Bailey | Arnold Thomas & Becker Solicitors |
| For the Defendant | Mr Scully | Russell Kennedy |
HER HONOUR:
INTRODUCTION
The plaintiff, Mr Byers has worked as a truck driver for the defendant, Kitco Transport Australia Pty Ltd (Kitco) since 2010.
On 7 March 2015, Mr Byers experienced an horrific and tragic event. Mr Byers was driving his B-double truck from Melbourne to Sydney when around 4am, a man suicided by walking into the path of the truck Mr Byers was driving (the accident).
Mr Byers did not seek any medical or psychological treatment following the accident until 29 November 2017, when Mr Byers saw a general practitioner and was subsequently diagnosed as suffering from post-traumatic stress disorder (PTSD) since the accident on 7 March 2015. Mr Byers made a WorkCover claim on 15 December 2017,[1] which was accepted by Kitco’s authorised agent. Mr Byers is currently receiving weekly payments.
[1] Mr Byers dated the Worker’s Injury Claim Form, which stated that he had been diagnosed with PTSD, 15 November 2015. However, I find that it is more likely than not that Mr Byers made an error with the date and in fact made the claim on 15 December 2017, which is the date his GP signed the Certificate of Capacity, as Mr Byers had not seen any medical practitioner about the accident or been diagnosed with PTSD as at 15 November 2017.
Mr Byers has also made a claim for weekly payments[2] from 7 March 2015, the date of the accident, until 14 December 2017.
[2]Limited to 130 weeks.
Kitco’s authorised agent admits that Mr Byers suffered injuries arising out of or in the course of his employment with Kitco on 7 March 2015. It also admits that Mr Byers’ employment with Kitco was a significant contributing factor to his injuries.
However, Kitco’s authorised agent has not accepted Mr Byers’ subsequent claim for weekly payments from 7 March 2015 to 14 December 2017 because it denies that Mr Byers was incapacitated for his pre-injury employment as a truck driver during this period and it denies that if Mr Byers was incapacitated for his pre-injury employment during this time, his employment injury with Kitco resulted in or materially contributed to his incapacity for work.
Accordingly, in order for Mr Byers to succeed in his claim for weekly payments from 7 March 2015 until 14 December 2017, he has to prove that he had no capacity for driving trucks, which was his pre-injury work, during this period and that his employment with Kitco materially contributed to his incapacity for work.
THE PARTIES’ EVIDENCE
The medical evidence relied on by the parties
Mr Byers relied on the following medical reports:
a) The report of Dr John Bialylew, general practitioner, who he first consulted on 29 November 2017. Dr Bialylew completed the Certificate of Capacity for WorkCover on 15 December 2017 and stated in the certificate that he had diagnosed Mr Byers with ‘post traumatic stress disorder since truck suicide 7/3/2015’.
b) The Medical Practitioner Questionnaire dated 7 February 2018[3] completed by Dr Bialylew, in which he noted that the key issue or cause of Mr Byers’ condition was the PTSD he has had since a man jumped in front of his truck and that Mr Byers presented with symptoms of anxiety, chest pains and aggression. Dr Bialylew also expressed the opinion that Mr Byers was unable to drive trucks due to his PTSD.
[3]The date on the questionnaire is unclear and may be 6 or 9 February 2018.
c) The report of Wendy Brodribb, psychologist, dated 19 February 2018, who expressed the opinion that Mr Byers’ psychological condition developed in direct response to the workplace incident (the accident) which occurred on 7 March 2015 and that this was a single precipitative episode. Ms Brodribb also expressed the opinion that Mr Byers’ presenting symptoms have resulted in an incapacity to perform his pre-injury duties due to persisting anxiety, avoidance, depressive symptoms, intrusive memories, nightmares and night terrors which affect his attention, concentration, motivation and energy.
d) The report of Dr Chris Pang, general practitioner, dated 24 April 2019, who stated that Mr Byers had been diagnosed with PTSD as a result of the accident.
e) The report of Wendy Brodribb dated 6 May 2019, which confirmed Mr Byers’ PTSD diagnosis and incapacity for work, and which also stated that Mr Byers initially delayed seeking medical treatment, which is associated with chronic and severe PTSD symptoms.
f) The report of Dr Leon Turnbull, psychiatrist, dated 3 June 2019, who stated that:
· Mr Byers had described an immediate change in his mood and emotions, a fairly rapid onset of nightmares and flashbacks, and problematic alcohol use
· Mr Byers had not sought treatment as he preferred not to express what he was thinking to others and it seemed to Dr Turnbull that it was only through the hardship of losing his partner and the ongoing symptoms that he sought treatment
· he agrees with his treating psychologist that Mr Byers has a clear diagnosis of PTSD
· he sees a direct relationship between the accident and Mr Byers’ ongoing psychiatric disturbance
· Mr Byers’ symptoms and illness are directly related to motor vehicles
· in his opinion, the incapacity for motor vehicle related work started immediately after the accident.
Kitco relied on the following medical reports:
a) The report of Dr Chris Grant, psychiatrist, dated 9 February 2018. Dr Grant expressed the opinion that:
· Mr Byers has an adjustment disorder with anxious and depressed mood and some features of traumatisation, but not a full post traumatic stress disorder
· Mr Byers’ course was complicated by a period of significant alcohol misuse, now apparently in remission
· Mr Byers’ adjustment disorder appears to have arisen after the work accident, complicated by the subsequent breakdown in the relationship of seven years, leaving him with sole custody of four children
· Mr Byers is not fit to return to his pre-injury duties because of his anxiety.
b) The report of Dr Chris Grant dated 28 February 2018. Dr Grant expressed the opinion that Mr Byers’ adjustment disorder appears to have arisen after the work accident, which set in motion a series of symptoms that have persisted without any period of full remission. He also expressed the opinion that whilst his situation has been complicated by the subsequent breakdown in the relationship of seven years leaving him with sole custody of four children, he would still consider the accident to be a significant material contributing factor to his current clinical condition.
c) The report of Dr Chris Grant dated 10 October 2018, in which he expressed the opinion that Mr Byers still has an adjustment disorder with anxious and depressed mood and some features of traumatisation, which still appears related to the work accident, complicated by the subsequent breakdown in the relationship of seven years leaving him with sole custody of four children. Dr Grant also expressed the opinion that Mr Byers is not fit to return to his pre-injury duties because of his ongoing anxiety.
MR BYERS’ EVIDENCE
In addition to the medical reports referred to in paragraph 8 above, Mr Byers gave evidence at the hearing and relied on the evidence of Angela Byers.
Mr Byers’ evidence about his background
Mr Byers was born in South Australia on 3 February 1969 and moved to Melbourne with his family when he 16 years old.
Mr Byers left school before completing year 10 to work in his father’s truck business driving front end loaders. Mr Byers worked with his father for six years, then began a printing apprenticeship, which he did not finish. He then worked as a furniture removalist for two years before buying his own prime mover. Mr Byers has driven trucks for a living since that time. Mr Byers has no formal qualifications and is not computer literate.
Mr Byers began working as an interstate truck driver for Kitco in 2010.
Before the accident, Mr Byers:
· did not have a regular GP, was pretty health and not often sick
· never suffered any depression or anxiety, had never been treated by a psychiatrist or a psychologist and had never taken medication for depression
· did not drink because of his work.
Mr Byers’ evidence about his relationship with Skye
At the time of the accident Mr Byers lived with his partner, Skye and their four children who were aged five, four, three and four months.
Skye was a long-time drug user and they were breaking up and getting back together through the whole relationship, which lasted around nine years. Skye left the family every year for a time, before coming back. Skye was unable to look after their eldest child during the first two years of his life, which meant that for most of that time, Mr Byers had to take his son with him on his interstate trips.
In 2015, Skye was in and out of hospital, spending two to three weeks in hospital each time. In April 2015, Skye was diagnosed as suffering from postnatal psychosis. When she was released from hospital, Skye lived in Springvale where she underwent rehabilitation. When Skye finished her rehabilitation, she lived with her mother.
On 21 December 2015, Skye called Mr Byers and told him she would be home for Christmas. However, Skye did not show up at Christmas and did not contact Mr Byers again until 1 January 2016, when she called him and told him she had taken an overdose of medication. My Byers called the police, who checked Skye was ok.
Mr Byers and his children then moved in with his sister for three weeks to allow Skye to move back into the family home, which Skye owned. Even though Skye subsequently agreed that she would move out, she did not do so, and Mr Byers and the children moved back in with her. After four weeks, it was clear to Mr Byers that the relationship was over after Skye got angry with him and slashed him on the forehead and cheek with a knife. The police obtained an intervention order to protect Mr Byers and his children from Skye and they moved in with Mr Byers’ mother, who lived in Leongatha. Mr Byers did not hear from Skye again for over a year.
Mr Byers did not seek any medical treatment for his injuries after Skye slashed him with the knife.
Mr Byers’ evidence about the accident
At approximately 4am on 7 March 2015, Mr Byers and a passenger were driving back from Sydney when they heard a bang and noticed the truck’s left-hand head light had gone out. Mr Byers pulled over and his passenger got out and found a man on the ground. The passenger told Mr Byers that he thought the man was dead and that Mr Byers should not come too close.
Mr Byers telephoned his manager, David Evans, and told him what had happened. Mr Byers had chest pains, was freaking out and felt anxious.
Mr Byers was taken to hospital and discharged later that day.
Mr Byers’ evidence about the aftermath following the accident
Mr Byers did not return to work immediately because he was trying to deal with what had happened and was going through a lot of emotions. He then got worse, fell to pieces and started drinking heavily after three days. Mr Byers felt angry and very depressed. One of his biggest fears had always been that he would hurt someone driving his truck.
Before Skye was admitted to hospital in April 2015, she drove the children everywhere. Mr Byers did not drive again for six or seven months. After Skye was admitted to hospital, Mr Byers’ sister helped out a bit, but things were very hard because Mr Byers could not function properly at home. Mr Byers switched off from everyone and did not speak to anyone. Mr Byers felt no happiness or enjoyment, had no motivation and was always angry. He did not cope with looking after his children, who copped most of his anger and were mostly left to play by themselves. Mr Byers cannot remember much of this time.
By the end of 2015, Mr Byers felt pretty low. He was not eating and could only sleep if he was drunk. He was also having frequent nightmares. However, whilst his relationship with Skye ended around this time, the relationship breakup with Skye was never on Mr Byers’ mind. He and Skye had not been getting along for six months before they separated. The relationship had been breaking down for a long time and by Christmas 2015, the children had stopped asking about her.
After Mr Byers and his children moved in with his mother in early 2016, she looked after the children. By this time, Mr Byers was drinking from 1pm every day and sleeping in a chair on the veranda when he was drunk. Mr Byers spent a lot of time thinking about the man who suicided, whether he had a family and why he did it. Mr Byers felt angry with his mother and children, his moods were very bad, and he took them out on his mother and the children, who he had no patience for, particularly the youngest child. Mr Byers’ concentration was scattered and he often forgot to do things. Mr Byers took advantage of his mother during this time.
Mr Byers’ mother and step-father told him to slow down his drinking. Mr Byers pretended to do so.
In mid-2016, Mr Byers met his current partner, Angela. Mr Byers’ drinking habits were still very bad at this time, but they changed a few months into their relationship after Angela told him she was concerned about his drinking, particularly because he had his children to look after. Mr Byers stopped drinking himself into oblivion and reduced his drinking to three to four cans [of alcohol] a night. Despite this, Mr Byers became more depressed and he felt more out of control. He began feeling many different emotions and began questioning whether it was his fault the man had died, even though he had been cleared of any wrongdoing. Whilst Mr Byers had hit kangaroos on the road over the years, he described hitting the man as completely unexpected and the accident as gut wrenching.
Angela sometimes spent the night with Mr Byers at his mother’s house in Leongatha. Whilst Mr Byers usually slept in a chair where he felt more comfortable and where he would sit until he fell asleep, he slept in his bed when Angela stayed the night. These nights did not go well because Mr Byers was very jumpy, would hit and kick her in his sleep and he would wake up screaming because of his dreams about the accident. In Mr Byers’ dreams, the truck flips over, he tries to swerve the truck to avoid hitting the man and he has to defend himself to the man’s family.
Mr Byers and the children moved into their own home at the end of 2016. He then lost control of everything, allowed the children to run the place and felt mixed up and messed up.
Mr Byers denied that he was unable to work due to the stress of his relationship breakdown with Skye or because he needed to look after his children after their relationship ended. Mr Byers’ relationship with Skye had been on and off for many years and there were times in the past when Skye had been unable to look after their children. Despite this, at no time before the accident had Mr Byers taken time off work to care for his children because Skye was unable to look after them, nor had he taken time off work due to stress because of the breakdown of his relationship with Skye.
Mr Byers’ mother would have looked after his children if he had been able to return to work after the accident. Even though he was living with his mother in Leongatha in 2016, he only would have needed to drive to Sunshine, which was where Kitco was located, two times a week and it was only a 2 ½ or three hour drive. If Mr Byers’ mother could not have looked after the children, he would have taken them in the truck with him, as he had previously done for the first two years of his eldest child’s life. Whilst the truck only had two seats, the other children could have sat in the bunk and played or watched TV.
Mr Byers’ evidence about his attempts to return to work following the accident
Mr Byers’ manager, David Evans called him after the accident and asked him to come back to work. Mr Byers did not return to work at this time because he was self-medicating by drinking alcohol and was not safe.
Mr Byers made two attempts to return to work at Kitco. The first attempt was in 2015[4] when Mr Byers spent three weeks driving a forklift and loading and unloading trucks for Kitco. During this time, Mr Byers was drinking around six cans [of alcohol] at the pub every lunch time. He decided to stop work because he thought it was unsafe to drink and drive the forklift and he did not want to hurt himself or kill anyone else.
[4] The chronology, which was provided to the Court by counsel of behalf of Mr Byers, identified the dates of My Byers’ return to work attempts as: Forklift driving - October and November 2015; accompanying Ross to Talcutta and back, and attempting to drive back from Talcutta – June to August 2016; delivery driver for Ice transport – February 2018 to June 2018. Mr Byers conceded that his memory of when these return to work attempts took place was poor.
Mr Byers’ licence was cancelled and disqualified for three months from 23 April 2015 and for six months from 17 June 2015 for failing an oral fluid drug test on two occasions before the date of the accident. However, this was not the reason he was not working for Kitco during this time, as Kitco knew he had lost his licence and he drove the forklift for Kitco whilst he did not have a licence.
Mr Byers made a second attempt to return to work in the later part of 2016. Initially, he accompanied another driver, Ross, to Tarcutta and back but did not do any driving. When Ross drove past the accident site, Mr Byers had an anxiety attack because memories of the accident came back to him. Mr Byers became a little bit teary and angry. On the second trip, Mr Byers drove on the way back. About 30 minutes from the accident site, he started sweating and getting anxious and had to pull over. Ross took over and drove the rest of the way to Melbourne. Mr Byers did not want to drive past the accident site because he felt scared and felt like he could not handle it. After this trip, Ross completed some paperwork which said Mr Byers was not ready to drive the truck again.
Mr Byers told Mr Evans that he had to stop work because he needed to look after his children and had to sort himself out. He also told Mr Evans that things were all good because he does not like telling people how he feels or about his problems.
In 2017, Mr Byers drove a four-tonne truck doing deliveries for his brother-in-law for a few weeks. Mr Byers took his children with him when he was working. When Mr Byers saw a man run between two cars and out onto the road, he had to pull over the truck and could not continue to do this work.
My Byers is still too scared to drive a truck. The trucks he used to drive are big, 60 tonne trucks with two trailers. They have a long nose, which limits his vision and are hard to stop. When Mr Byers drove for Kitco, he always drove at night. He is now very worried about driving at night.
Mr Byers’ evidence about seeking medical help after the accident
After Mr Byers started seeing Angela, she made him see a doctor about a cyst on his forehead.[5]
[5]Mr Byers’ chronology identifies the date of this consultation as being in March 2017.
In mid to late 2017, Angela asked Mr Byers about the dreams and after a month or so, he told her about the accident. This was the first time he had talked to anyone about the accident since the day of the accident. Angela told Mr Byers that he should get some medical help. At this time, his health was deteriorating because he had stopped drinking and it was worse in November 2017 than it had been before.
Mr Byers went to see a doctor in December 2017 after another conversation with Angela, during which she again told him to get some help.
Mr Byers did not seek medical treatment before this because he thought he could handle it himself, as he had done in the past.
Mr Byers lodged a WorkCover claim on 15 December 2017. Mr Byers was aware that he could have made a WorkCover claim earlier did not do so because he thought this would involve the man’s parents and he did not want to cause them any more pain. Angela encouraged him to make the WorkCover claim to help with his medical bills and he did so after he learnt that the man’s parents would not be involved.
Mr Byers’ evidence about what he told the medical experts
During cross-examination, Mr Byers agreed that he had told Dr Grant, an independent medical examiner, that Skye had walked out with no forewarning. He said this because Skye was supposed to join the family for Christmas and she did not turn up. Whilst he had also told Dr Grant that he could not explain the reason for the relationship breakdown, he and Skye were breaking up through their whole relationship, she left every year and came back, and on the last occasion, he had had enough. Mr Byers did not think he had to explain everything about his relationship with Skye to Dr Grant.
In relation to what he told Dr Turnbull, Mr Byers acknowledged that Skye had had a lot of troubles and problems before 2015, including mental health issues, drug and alcohol abuse, and she was verbally abusive, but he maintained that his drinking and behaviour may have been part of the reason why Skye left him and the family. In addition, Mr Byers had been sleeping on the couch during the last year of their relationship and he and Skye had only slept together on one occasion. Mr Byers maintained that during the last year of their relationship, the state of their relationship was not on his mind. Mr Byers also explained that when he saw Dr Turnbull, he thought he was there to talk about the accident, not his relationship with Skye or Skye’s history.
Mr Byers did not tell any of the medical experts that he had tried speed because he assumed he was seeing the doctors about the accident. Also, he had just tried speed once and he was not ‘using’ speed.
Mr Byers did not tell any of the medical experts about his criminal history because they did not ask him if he had a criminal history and he did not think he had to go through his childhood with them or bring up his stupid behaviour when he was young.
Mr Byers’ evidence about the medical certificates
During cross-examination, Mr Byers stated that he had never seen three medical certificates dated 3 April 2015, 8 April 2015 and 16 April 2015, which stated that he needed to care for Skye and the children.
Angela Byers’ evidence
Angela and Mr Byers first met around 30 years ago. They were friends for a few years then lost contact. They re-established contact in August 2016. Because Angela lived in Endeavour Hills and Mr Byers lived in Leongatha, they saw each other on weekends.
Angela observed that when they spent time together, Mr Byers always had an [alcoholic] drink in his hand and when they spoke on the telephone in the evenings, Mr Byers sounded like he was drunk.
After a couple of months, Angela started staying over. She observed that Mr Byers would start screaming and throwing himself around in his sleep, which she described as night terrors. She also described Mr Byers as being drunk and agitated.
When she initially asked Mr Byers questions about his night terrors, he brushed her off and did not want to talk about it.
Angela talked to Mr Byers, together with his mother and stepfather, about him drinking too much. After this conversation, Mr Byers drank less during the day but became more agitated and his mood swings and night terrors became worse. Mr Byers had mood swings during the day, where he went from being happy and jovial, to being depressed and withdrawn. When he was depressed and withdrawn, Mr Byers did not want to speak to anyone, his energy levels dropped drastically and he would sleep on the couch in the middle of the day, but not soundly. Mr Byers’ night terrors also became more frequent and severe and Mr Byers became teary, which he had not been before he had slowed down his drinking.
In early to mid-2017, Mr Byers opened up to Angela and told her about the accident after he had woken her up screaming one night. He became very agitated when he tried to talk to her about the accident, fidgeting a lot, not making eye contact and getting teary. Angela got the impression that Mr Byers thought the accident was his fault.
Angela also observed that when Mr Byers was happy, he was very good and patient with his children but on other days he would lose his temper and snap at them for no reason. When they went out on family outings, Mr Byers was always in a hurry to get home and open a can of Jack Daniels. She also observed that Mr Byers was easily distracted and very forgetful. Things got so bad that Angela used to call Mr Byers at 3pm to make sure he was awake and would pick up his children from school.
Angela observed that when Mr Byers drove his car, he was very alert, very rigid and hunched over. Mr Byers held his arms so stiffly his knuckles would go white and he did not drive at night. Angela observed that Mr Byers was even nervous as a passenger.
During the time that Mr Byers was driving a van for Ice Transport, which was around February 2017, his anxiety and night terrors got worse and on one occasion he punched and strangled her. Angela perceived that Mr Byers’ mental state was deteriorating and as soon as Mr Byers told her about the accident, she began to harass him about seeing a doctor. Angela harassed Mr Byers for several months before he went to see a GP.
Towards the end of 2018, Mr Byers and Angela moved in together and they married on 9 December 2018.
KITCO’S EVIDENCE
In addition to the medical reports referred to in paragraph 9 above, Kitco relied on the evidence of David Evans.
David Evans’ evidence
David Evans was Mr Byers’ manager. Mr Byers did not return to work straight after the accident. In March 2015, Mr Byers did a trip to Sydney and he did yard work (forklift driving) for between four and eight weeks. Mr Evans did not notice Mr Byers drinking on the job when he was working in the yard and described him as a good worker, who was a popular guy. Mr Byers also did two to three change-over trips to Tarcutta where the drivers swapped trailers but not trucks.
Mr Byers told Mr Evans that he enjoyed the trips and did not mention any issues or stress arising from the accident. Mr Byers told Mr Evans that he had to stop working because he had a few issues at home to sort out, but he did not say what those issues were.
Later in 2015, Mr Evans telephoned Mr Byers every fortnight or month to see how he was going. During one of these telephone conversations, Mr Byers told Mr Evans he had a job in Dandenong, which suited him because he was a single parent and needed to look after his children and the employer gave him hours that suited him.
Mr Byers had to stop working because he had to stay at home and look after his children because there was no one else to look after them.
To his knowledge, Mr Byers had not taken his children in his truck, but had he asked to do so, he would have said yes.
During cross-examination, Mr Evans agreed that Mr Byers had done a trip with another driver but said that he did the change-over trips alone. He also conceded that he was worried about Mr Byers’ mental state after the accident and that the other driver had accompanied Mr Byers to Sydney to give him some support and to see how he went, as the trip was not long after the accident.
Mr Evans also confirmed that Kitco was aware that Mr Byers had lost his licence in 2015 but it had not ended his employment.
KITCO’S CONTENTIONS
Kitco conceded that the accident on 7 March 2015 was horrific and that Mr Byers subsequently suffered and is still suffering from a debilitating medical condition which arose in the course of his employment with Kitco.
However, Kitco contended that Mr Byers’ claim should be dismissed because he has failed to discharge the onus that he bears to satisfy the Court that had no capacity for work between 7 March 2015 and 14 December 2017 as a result of his injury.
Kitco contended that the only evidence that Mr Byers had no capacity for work between 7 March 2015 and 14 December 2017 and that his employment injury with Kitco resulted in or materially contributed to his incapacity for work during this period is his own evidence. Kitco also contended that Mr Byers’ evidence should not be accepted for two reasons. Firstly, Mr Byers has a sketchy memory, as evidenced by the way in which he muddled up the dates of events that took place in 2015, 2016 and 2017 when he gave his evidence.
Secondly, Mr Byers provided Dr Grant and Dr Turnbull with a vague and inaccurate history, minimised the effect of the breakdown of his relationship with Skye and was evasive in relation to his drug use. In particular, Kitco contended that it beggars belief that Mr Byers simply told Dr Grant and Dr Turnbull that his relationship with Skye came to an end and that he failed to mention that she had slashed him with a knife and that an intervention order had been made to protect him and the children. Kitco also relied on Mr Byers’ failure to tell Dr Grant and Dr Turnbull that he and Skye had been in a relationship for nine years, that they had four children, that Skye was a long-term drug user and that she had been hospitalised and received treatment for her mental health problems in 2015. Mr Byers also told Dr Grant and Dr Turnbull he had not used methamphetamines but he conceded in cross-examination that he had used speed in early 2016.
Kitco also relied on the medical certificates dated 3 April 2015, 8 April 2015 and 16 April 2015, which stated that Mr Byers had to care for Skye and his children in late March and April 2015. Kitco contended that this was the reason Mr Byers could not work following the accident, together with the psychological impact of his relationship with Skye ending in early 2016.
Kitco contended that Mr Byers’ failure to give Dr Grant and Dr Turnbull a full and accurate medical history raises doubts about the probative nature of their reports because Dr Grant and Dr Turnbull have relied on Mr Byers’ history in their reports. In addition, Kitco contended that had Mr Byers provided Dr Grant and Dr Turnbull with a full history, it may have affected their opinions and their diagnoses in relation to causation. Accordingly, there is no medical evidence before the Court that is not affected by Mr Byers’ inaccurate and incomplete medical history.
Kitco also contended that there is no evidence of Mr Byers’ medical condition in September 2017 nor is there any evidence as to why his symptoms emerged and crystallised around this time.
Kitco contended that Mr Byers’ lack of medical treatment was remarkable for a 50-year-old man and shows that his medical condition had deteriorated by November 2017. Kitco also questioned why Mr Byers had not seen a doctor earlier if his problems with alcohol were so threatening.
Kitco contended that as a result of Mr Byers’ lack of candour and evasiveness, and the lack of medical evidence in support of Mr Byers’ claim that he had no capacity for work from 7 March 2015 until 14 December 2017 and that his employment with Kitco materially contributed to his incapacity for work, his claim should be dismissed.
MR BYERS’ CONTENTIONS
Counsel for Mr Byers conceded that he did not have a clear or accurate memory of when he made his attempts to return to work. However, she submitted that he was a truthful and genuine witness who tried to give the best evidence he could in the circumstances.
Counsel for Mr Byers also contended that no adverse inference should be drawn from his failure to give a full and accurate history to Dr Grant and Dr Turnbull in circumstances where he:
· alluded to his relationship problems with Skye
· admitted to taking other drugs
· gave evidence that he does not like telling other people about his problems.
Mr Byers contended that the Court should reject Kitco’s contention that there was no evidence of an immediate onset of symptoms of a psychiatric injury, and that accordingly, there is no evidence that Mr Byers was incapacitated for work due to the accident between 7 March 2015 and 14 December 2017.
Mr Byers contended that Kitco’s contentions should be rejected because of the following evidence that clearly establishes that Mr Byers suffered from symptoms of a psychiatric injury and was unable to drive his truck in the immediate aftermath of the accident:
· The horrendous nature of the accident, which was conceded by Kitco
· Mr Byers’ evidence that he did not return to driving trucks immediately after the accident, which his manager David Evans agreed with
· Mr Evans’ acknowledgement in cross-examination that another driver accompanied Mr Byers on one of his trips to help him and that he was worried about his mental state
· If Mr Evans’ evidence is accepted that Mr Byers’ drove by himself to Sydney on one occasion in March 2015, which Mr Byers did not mention in his evidence, this is the only trip he was able to do by himself
· Mr Byers’ evidence of his two failed attempts to return to truck driving with Kitco, specifically that on the first occasion when he was a passenger, he experienced an anxiety attack when went past the location of the accident and that on the second occasion when he was driving, the memories of the accident that he began to have on approaching the location of the accident led Mr Byers to pull over and stop driving and Ross taking over
· Mr Byers’ evidence that he could not continue forklift driving for Kitco due to his excessive alcohol consumption
· Mr Byers’ unchallenged evidence about the symptoms he experienced immediately after the accident, which continued until he saw his GP in November 2017, such as his excessive drinking and his inability to sleep unless drunk, his depression, his mood swings, his nightmares and his recurring thoughts about the accident, which put him in a position of being unable to drive a truck
· Angela’s unchallenged evidence of her observations of, and concerns about Mr Byers’ symptoms from August 2016, such as his excessive drinking and his mood swings, which she observed before she started spending the night with Mr Byers, and his night terrors, which she observed after she started spending the night with Mr Byers
· Angela’s unchallenged evidence of her observations of the worsening of Mr Byers’ symptoms after he reduced his drinking, which is evidence that in the months leading up to Mr Byers seeing a GP, Mr Byers clearly needed medical treatment
· Angela’s unchallenged evidence of her observations of Mr Byers’ stressed demeanour when he is driving a car and her evidence that he will not drive at night, which he is required to do as an interstate truck driver
· Mr Byers’ GP’s immediate diagnosis in November 2017 of PTSD ‘since truck suicide 7/3/2015’
· Mr Byers’ GP’s opinion that is set out in the Medical Practitioner Questionnaire dated 7 February 2018 in answer to the question ‘was it a single precipitative episode or gradual onset’ that Mr Byers’ condition ‘started [when] he witnessed a suicide 2016 a man jumped in front of his truck and since then PTSD’ and his opinion when asked to detail the type/degree of incapacity and reasons for these ‘unable to drive truck due to PTSD’[6]
· Dr Turnbull’s report dated 3 June 2019, in which he states that in his opinion, the incapacity for motor vehicle-related work ‘commenced immediately after the crash’
· Dr Grant’s report dated 9 February that states that Mr Byers’ ‘adjustment disorder appears to have arisen after the work incident of 7.3.15’ and his report dated 26 February 2018, which adds that the work incident ‘set in motion a series of symptoms that have persisted without any period of full remission’.
[6]The reference to 2016 being the date of the accident clearly ought to have been a refence to 2015.
Mr Byers contended that his excessive drinking masked the deep-seated symptoms of his psychiatric injuries, which began in the immediate aftermath of the accident. When Mr Byers reduced his alcohol intake following his mother’s, stepfather’s and Angela’s inventions, these symptoms were unmasked. Mr Byers contended that this explanation for why the symptoms of his psychiatric injury were more prevalent in late 2017 should be accepted by the Court and that the Court should reject Kitco’s contention that the symptoms only started in November 2017, particularly because symptoms of a psychiatric injury do not just appear overnight.
Mr Byers also contended that Kitco’s contention that the accident did not materially contribute to Mr Byers’ incapacity for work and that Mr Byers did not return to work because he needed to look after his children due to Skye’s hospitalisation and because his relationship with Skye ended in early 2016, together with the psychological impact on Mr Byers of their relationship coming to an end should be rejected because of the following evidence:
· The horrendous nature of the accident, which was conceded by Kitco
· Mr Byers’ unchallenged evidence about the symptoms he experienced immediately after the accident, which continued until he saw his GP in November 2017, such as his excessive drinking and his inability to sleep unless drunk, his depression, his mood swings, his nightmares and his recurring thoughts about the accident, which put him in a position of being unable to drive a truck
· Mr Byers’ evidence that immediately after the accident, Skye was not in hospital and the lack of any evidence that suggested Mr Byers needed to look after his children before Skye was admitted to hospital or any other explanation for why he did not immediately return to work other than the accident
· Mr Byers’ evidence that he had a difficult and dysfunctional relationship with Skye for many years but that this had not caused any incapacity for work before the accident
· Mr Byers’ evidence that his mother would have looked after the children if he had returned to work, his evidence of the extent to which she looked after the children when he and the children lived with her in 2016 and his evidence that his eldest son currently lives with Mr Byers’ mother, from which the Court can infer that his mother would have helped him after the accident[7]
[7] Kitco did not submit that I should draw an inference from Mr Byers’ failure to call his mother to give evidence, as according to Mr Byers’ evidence, she now lives in Queensland and cares for his eldest son.
· Mr Byers’ evidence that if his mother could not have looked after the children, he could have taken them with him when he was working
· Mr Byers’ evidence that he had never seen the medical certificates that stated that he needed to care for Skye and the children in late March and April 2016, and the fact that there was no evidence that he gave those medical certificates to Kitco
· the fact that Mr Byers made several attempts to return to work with Kitco and another employer when he was a single parent, which is inconsistent with him being unable to work because he had to look after his children.
Mr Byers also relied on the fact that Kitco did not put to Mr Byers during cross-examination that he was not experiencing symptoms between 5 March 2015 and 14 December 2017 or that he was able to return to driving trucks in that period.
Mr Byers contended that not much weight should be placed on Mr Evans’ evidence about why Mr Byers’ did not keep working after the accident where there is clear evidence that Mr Byers was unable to drive a truck following the accident due to his psychiatric injuries.
FINDINGS IN RELATION TO MR BYERS’ RELIABILITY AND CREDIT
I agree that Mr Byers’ memory in relation to the dates of the relevant events post-dating the accident was poor. This was conceded by counsel for Mr Byers.
I also agree that it is possible and even probable that the events of Christmas 2015 and early January 2016 that led to Mr Byers’ and Skye’s relationship finally ending had a greater psychological impact on Mr Byers than he believed at the time, and than he presently believes to be the case. This possibility was also conceded by counsel for Mr Byers.
However, I do not consider that Mr Byers was consciously minimising the impact of the end of his relationship with Skye on him. Rather, considering Mr Byers’ evidence in relation to his limited education and background, including his history of not having discussed his problems with anyone over the years, which I accept, I consider it most likely that Mr Byers genuinely, although mistakenly believes the end of his relationship with Skye has had no psychological impact on him.
In addition, I agree with the submissions of counsel for Mr Byers that I should not draw an adverse inference from his failure to provide Dr Turnbull and Dr Grant with a full and accurate history. Again, considering Mr Byers’ limited education and his background, particularly the fact that he has worked as a truck driver most of his life, I am satisfied that Mr Byers did not understand the importance of providing Dr Turnbull and Dr Grant with detailed information about his past, particularly his relationship with Skye. Whilst it is not in dispute that Mr Byers failed to tell the medical experts about Skye’s long standing drug and alcohol abuse, her mental health issues and that their relationship ended after she slashed Mr Byers with a knife and an intervention order was made to protect him and their children, I accept his evidence that he thought he was seeing the medical experts to talk about the accident, not his relationship with Skye. It is not at all surprising that Mr Byers would not have appreciated the relevance of his history when Dr Turnbull and Dr Grant were formulating their opinions about Mr Byers’ medical condition, considering Mr Byers’ limited education and his evidence in relation to his long history of not seeking medical or psychological help for his personal problems or discussing his personal problems with other people, which I accept. This is notwithstanding that Mr Byers conceded in cross-examination that the information that he failed to give Dr Turnbull and Dr Grant was relevant and would have been useful to them.
For these reasons, I reject Kitco’s contention that Mr Byers demonstrated a lack of candour and was evasive, particularly in relation to the effect on him of the breakdown of his relationship with Skye. Rather, I agree with the submissions of counsel for Mr Byers that he was a truthful and genuine witness who tried to give the best evidence he could in the circumstances, particularly considering Mr Byers’ PTSD diagnosis, which is likely to have affected his memory.
It flows from this finding that I accept all of Mr Byers’ evidence. Angela Byers and David Evans were also credible witnesses and I accept their evidence save for Mr Evans’ evidence that Mr Byers drove to Sydney by himself shortly after the accident. This is because Mr Byers’ evidence was that after the accident, he only did two trips to Tarcutta and that Ross accompanied him on both of these trips. In addition, Mr Evans’ evidence in relation to Mr Byers’ attempts to return to work was vague and he conceded in cross-examination that another employee accompanied Mr Byers on one of the trips to help him and because Kitco was worried about his mental state. In all of the circumstances, I consider it highly unlikely that Kitco allowed Mr Byers to drive to Sydney by himself immediately after the accident.
FINDINGS IN RELATION TO THE PROBATIVE NATURE OF THE MEDICAL REPORTS
There is no doubt that the opinions of Dr Turnbull and Dr Grant are, to a considerable extent, dependent on the accuracy of Mr Byers as an historian. This means that my assessment of Mr Byers’ credibility is important when evaluating their evidence. For the reasons set out above, I have found that Mr Byers was an honest and genuine witness and therefore a credible witness.
Whilst it was conceded by Mr Byers that the history he provided Dr Turnbull and Dr Grant was incomplete in relation to his relationship with Skye and his criminal history, and in relation to his drug use, inaccurate, in considering what weight should be given to the medical evidence, I cannot speculate about what opinion Dr Turnbull and Dr Grant may have expressed if given the missing information.[8]
[8]Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [50].
In addition, considering that Kitco did not require any of the medical witnesses for cross-examination, did not put to any of the medical witnesses, including their own expert that they did not have Mr Byers’ full history and did not ask any of the medical witnesses to revise their opinions accordingly, the opinions of Dr Turnbull and Dr Grant stand.
In any event, it is apparent from the reports of Dr Turnbull and Dr Grant that Mr Byers alluded to his relationship problems with Skye when he gave his history to them. In particular, Kitco’s own medical expert, Dr Grant, refers to Mr Byers’ condition having been complicated by the subsequent breakdown in his relationship of seven years, which left him with sole custody of his four children. Despite this, he also expressed the opinion that Mr Byers’ adjustment disorder appears to have arisen after the work accident, which set in motion a series of symptoms that have persisted without any period of full remission and that the accident was a significant material contributing factor to Mr Byers’ current clinical condition.
Further, as the authorities make clear, care must be taken when examining medical reports, particularly in relation to the account given by the doctor of the history provided by the patient.[9] This is because medical records usually contain a selective summary in the doctor’s own words of what the patient tells the doctor and cannot be treated as a verbatim transcript of the entire medical attendance. The records may also be inaccurate through miscommunication or misleading through omission, although notwithstanding their limitations, very often clinical notes constitute highly probative evidence because they are independent and contemporaneous and deal with matters within the author’s area of expertise.[10]
[9]Pulling v Yarra Ranges Shire Council [2018] VSC 248 at [50].
[10]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [105].
Taking into account all of the above matters, I consider that significant weight should be placed on the medical reports relied on by Mr Byers and Kitco.
WHEN DID MR BYERS’ SYMPTOMS OF HIS PSYCHIATRIC INJURY START?
Having found that Mr Byers was a truthful, genuine and credible witness, and his evidence about his symptoms not having been challenged during cross-examination by Kitco, I accept Mr Byers’ evidence about the nature of the symptoms he suffered after the accident and that he started experiencing those symptoms immediately after the accident.
I also reject Kitco’s contention that Mr Byers’ failure to seek immediate medical treatment is indicative of him not having suffered an immediate injury. Rather, I accept Mr Byers’ evidence that he did not seek medical treatment immediately after the accident because he believed that he could deal with his problems himself. I also rely on the report of Wendy Brodribb dated 6 May 2019, which states that chronic and severe PTSD symptoms are associated with delays in seeking medical treatment and the report of Dr Leon Turnbull dated 3 June 2019, who states that Mr Byers ‘had not sought treatment as he preferred not to express what he was thinking to others’.
100 In addition, whilst there is no contemporaneous medical evidence of Mr Byers’ symptoms immediately after the accident, the psychologist and all the medical practitioners who have seen Mr Byers, including Kitco’s independent medical practitioner, Dr Grant, agree that his PTSD was brought about by a single precipitative episode, being the accident on 7 March 2015.
101 For these reasons, and there being no medical evidence before the Court that suggests there has been a gradual onset of symptoms rather than an immediate onset of symptoms following the accident, I find that Mr Byers’ symptoms of his psychological injury started immediately after the accident.
DID MR BYERS’ SYMPTOMS OF HIS PSYCHOLOGICAL INJURY CONTINUE UNABATED UNTIL 14 DECEMBER 2017?
102 I also accept Mr Byers’ evidence that the symptoms of his psychological injury continued until at least 14 December 2017.
103 Angela’s evidence of her observations of Mr Byers’ symptoms from August 2016 until December 2017 is also consistent with him having a psychological injury throughout that period.
104 In addition, Dr Chris Grant in his report dated 28 February 2018 expressed the opinion that Mr Byers’ symptoms ‘have persisted without any period of full remission’ and there is no other medical evidence before the court that suggests this is not the case.
105 For these reasons, I am satisfied that Mr Byers’ symptoms continued unabated until 14 December 2017.
WAS MR BYERS INCAPACITATED FOR WORK FROM 7 MARCH 2015 UNTIL 14 DECEMBER 2017?
106 I agree with Mr Byers’ contentions set out at paragraph 81 above that his evidence about the symptoms that he has experienced since the accident, such as his excessive alcohol consumption, his depression, his sleep difficulties, his mood swings and his night terrors and his evidence about his failed attempts to return to work establish that Mr Byers was unable to drive trucks in the immediate aftermath of the accident and that his incapacity to drive trucks continued until 14 December 2017. Whilst Mr Byers made a number of attempts to return to truck driving during this time, the problems that he encountered when doing so simply reinforce my view that he should not have been driving trucks during this time. As Dr Turnbull observed in his report dated 3 June 2019, ‘with the benefit of hindsight’ Mr Byers ‘should never have gone on to doing deliveries with a van’.
107 Accordingly, having considered the whole of the evidence, including the evidence of Dr John Bialylew, Wendy Brodribb, Dr Leon Turnbull and Dr Chris Grant, who have all expressed the opinion that Mr Byers was incapacitated for his pre-injury work from 7 March 2015 to 14 December 2017, I am completely satisfied that Mr Byers was incapacitated for his pre-injury work from the date of the accident and that this has continued until 14 December 2017, the day before WorkCover accepted Mr Byers’ first claim.
DID MR BYERS’ EMPLOYMENT INJURY RESULT IN OR MATERIALLY CONTRIBUTE TO HIS INCAPACITY FOR WORK
108 I agree with Mr Byers’ contentions that Kitco’s contentions that the accident did not materially contribute to his incapacity for work should be rejected for the reasons set out in paragraph 83 above.
109 Whilst I accept that there were other non-injury related psychosocial factors complicating Mr Byers’ presentation as identified by Dr Grant and as is clearly apparent from Mr Byers’ evidence, and that it is possible and even probable that the events of Christmas 2015 and early January 2016 had a greater psychological impact on Mr Byers than he believed at the time and than he presently believes to be the case, I am completely satisfied that the accident was a material contributing factor to his incapacity for work.
110 I have reached this conclusion having examined the whole of the evidence, including the medical reports relied on by Mr Byers and Kitco, and his evidence in relation the symptoms he experienced immediately following the accident, particularly his excessive alcohol consumption, his sleep difficulties, his depression, his mood swings and his night terrors. I have also reached this conclusion based on Mr Byers’ evidence about his failed attempts to return to work and his evidence in relation to how he would have managed to work whilst also caring for his children.
111 For these reasons, I am satisfied that Mr Byers’ employment with Kitco materially contributed to his incapacity for work.
CONCLUSION
112 For these reasons, I am satisfied that Mr Byers is entitled to compensation in the form of weekly payments and I order that Kitco pay compensation to Mr Byers at the appropriate rates, which amounts are reserved with liberty to apply.
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