Campbell, Alan Douglas v St John's Regional College

[2009] VCC 1779

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-00380

ALAN DOUGLAS CAMPBELL	Plaintiff
v
ST JOHN'S REGIONAL COLLEGE DANDENONG	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November, 1, 2 and 3 December 2009
DATE OF JUDGMENT:	16 December 2009
CASE MAY BE CITED AS:	Campbell, Alan Douglas v St John's Regional College Dandenong & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 1779

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – S.135A and S.135AC Accident Compensation Act 1985 – late onset Post-traumatic Stress Disorder – whether consequences to plaintiff “severe”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Kennan SC with	Clark Toop & Taylor
Mr M J Ruddle
For the Defendant	Mr D R Myers	Thomson Playford Cutlers
HIS HONOUR:

Preliminary

1          On 15 March 1988, while the plaintiff was a physical education teacher with the first defendant, a brick wall at the Dandenong Public Swimming Pool (“the Pool”) collapsed, seriously injuring a number of students. The plaintiff saw the event, heard the cries of distress from the injured students and assisted in their recovery from the debris.

2          He remained working as a teacher over the following years, although complaining from time to time of anxiety and related emotional problems.

3          On 13 September 2004, he was again at the Pool and suffered a severe flashback. As a result of this, he consulted his general practitioner and was referred to a psychologist, Ms Sharon Anderson, who diagnosed him as suffering a Post-Traumatic Stress Disorder (“PTSD”). She has continued to treat the plaintiff through to the present time. He alleges that it was at this time, that is September 2004, that he suffered the full and florid symptoms of the disorder and understood its link to the incident in 1988.

4          In March 2008, the plaintiff was diagnosed as suffering a malignant brain tumour, underwent surgery for its excision, and was treated with radiotherapy. While initially emotionally affected by the disease, he claims to have significantly recovered.

5          He claims at the present time that the PTSD has led to a range of severe consequences, particularly in relation to his prospects for advancement in his teaching profession.

6 This is an application for leave to bring proceedings pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”) for psychological injury suffered in the course of the plaintiff’s employment on 15 March 1988. The application is brought under subsection (c) of the definition of “serious injury” contained in s.135A(19)(c), in that it is said the plaintiff has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder in the nature of a PTSD.

7          In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the disorder may be fairly described as more than “serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”.

8          I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of behavioural disorders.

9          S.135A(2) provides:

“(2)

A worker may recover damages in respect of an injury arising out
of, or in the course of, or due to the nature of, employment—

(a)	if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or
(b)	if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date.”

10        Further, s.135AC provides:

“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—

(a)	subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before 1 September 2000; or
(b)	if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”

The authorities have defined “the incapacity arising from injury” referred to in the subsection as the serious injury level of incapacity as required to satisfy S135A(19)(c). Thus, given the plaintiff claims he first became aware of the severe consequences of the disorder when he attended Ms Anderson on 14 September 2004, he has three years from that date to make an application to the Authority. Such application was made on 13 September 2007.[1] Thus, although the plaintiff’s application prima facie is out of time pursuant to s.135AC(a), I am satisfied that the severe consequences of the disorder (if they are found to be such) did not arise until 14 September 2004, and the plaintiff’s application was made within three years of that date. Mr Myers, on behalf of the defendant, did not contend otherwise.

[1]             See letter - Exhibit B

11        The plaintiff, and his treating psychiatrist, Dr Dianne Clifton, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, his wife and the principal of his school, Mr Ian Norman, various medical reports, statements, letters and other material was tendered into evidence. I have read all the tendered material.

12        On behalf of the defendants, Mr Myers outlined the position of his client in response to the application as:

• Whatever psychological symptoms were suffered by the plaintiff over the period from 1988 to 2004, they were minor, and unrelated to the PTSD.

• When the plaintiff first attended his general practitioner, and Ms Anderson in 2004, he gave no history relating to the 1988 incident. This, said Mr Myers, was a measure of the paucity of the disorder and the symptoms arising from it.

• Regardless of when the plaintiff became aware that the psychological symptoms from which he was suffering were related to the 1988 incident, at no time did the consequences achieve the “severe” level as the legislation required.

• Whatever psychological symptoms the plaintiff was suffering from at the present time were related to his brain tumour and its treatment, and he had recovered substantially from the PTSD.

Relevant Background

13        The plaintiff was born in October 1957 and is now fifty-two years of age. He completed Year 12, and obtained a teaching diploma and a degree in physical education. He commenced teaching in 1979 and taught at a number of schools for six years or so. He took a break from teaching in 1985 and worked as a brickies’ labourer for about four months. He commenced teaching at the first defendant’s school in 1986. He taught physical education and English. In 1987, he was appointed physical education co-ordinator for the school, and in 1989, appointed head of physical education.

14        Prior to 1988, he had suffered no psychological symptoms nor disorders and was generally healthy. He was particularly interested in sport and played a range of sports, including cricket.

The Incident and its Consequences

15        On 15 March 1988, the school had hired the Pool for a swimming carnival and it was attended by some hundreds of pupils from the school. The plaintiff was the teacher in charge. The incident was described graphically in the histories to various of the psychiatrists who have examined the plaintiff.[2] The plaintiff said he witnessed the wall collapse on a large group of students who were sitting upon rows of seating attached to it, of hearing the children screaming and seeing one girl whom he knew with her legs and arms splayed awkwardly. He assisted to extract the children from the debris, called ambulances and emergency services, and helped shepherd the other students away from the area. At least one student suffered a severe spinal injury and many suffered a range of other injuries. The plaintiff returned to work, but was upset and angry. He was in shock for a period of time. He participated in one session of group counselling, but that had little effect.

[2]             Reports of Dr Kaplan - Plaintiff’s Court Book (“PCB”) 41-42; Dr Clifton - PCB 64; Professor Hopwood - PCB 67I

Psychological Consequences over the Period 1988 to 2004

16        According to the plaintiff’s affidavit,[3] over this period he claims to have become anxious, angry and short-tempered, and meticulous when he was organising school events. He claimed to have nightmares and was confrontational in work situations. He said that his general practitioner wanted to refer him for counselling.

[3]             PCB 12-13

17        At the end of 1999, he resigned from the first defendant’s school, and took up a position at the Narre Warren North Primary School as a physical education teacher. He claimed the school had become too difficult for him to teach at. Further, he claimed that he aspired to obtain a position as a deputy principal or principal and had undertaken a course in 1992 in practical leadership.[4] He stated that he would be not able to achieve that status in the defendant’s school which was in the Catholic system as he was not a Catholic.

[4]             Transcript (“T”) 160

18        The plaintiff’s wife, in her affidavit, noted that after 1988, the plaintiff became anxious with a short and explosive temper. She said he was irrational and appeared depressed. She noted he was impatient regarding school activities, became more controlling and developed a stutter. He was difficult to live with because of anger management problems.

19        According to the affidavit of Mr Ian Norman, the principal at the Narre Warren North Primary School in the time the plaintiff was employed there, he was impressed with the plaintiff’s teaching capacities up until 2004-2005. He said that the plaintiff organised an excellent sporting program, and co-ordinated district sports events involving not only the Narre Warren School, but eight other schools in the district. He acted as assistant principal for a term in 2001 and was considered by Mr Norman to have good leadership skills and potential. He stated that he thought the plaintiff had potential for promotion, and discussed with him applying for positions as an assistant principal at other schools. He considered the plaintiff an excellent teacher with the capacity to interact with students and other teachers. He did perceive some “relationship issues” with staff and parents which occurred around the time of the school’s swimming program in term 3. He considered that these were related to the 1988 incident.[5]

[5]             PCB 27

20        According to the report of the plaintiff’s then treating general practitioner, Dr Demediuk,[6] the plaintiff attended on a number of occasions in 1994 complaining to be stressed for a range of reasons. He was concerned about cardiac problems given his father had died of a heart attack, of stress relating to the birth of a child, and an allergy to dust. Dr Demediuk diagnosed anxiety, and prescribed Aropax. The plaintiff said in evidence that he did not believe he had taken out the prescription.

[6]             PCB 61-62

21        In 1995, the plaintiff complained to another doctor in the practice that he was “super stressed at present at work”. The symptoms included poor concentration, sleep and not thinking clearly. He was off work for about five days and given a prescription for Temazepam, for sleep. There was a further episode in 1999 when the plaintiff complained that his teaching was stressful.

The Incident of September 2004

22        On 13 September 2004, the plaintiff returned to the Pool for a further school swimming event. Although he had returned to the Pool on previous occasions without significant trauma, on this day, he had what he described as a “severe flashback”.[7] He recalled the incident of 1988 and stated that he could smell and taste dirt in his mouth as if the incident had just occurred. He returned to the school, saw the assistant principal and went home. He recalled lying upon the couch in a curled up position, and feeling very unwell.

[7]             PCB 13

23        He had time away from work and went to his then general practitioner, Dr Sally McDonald. She noted that he was suffering from nightmares and flashbacks of the original event, was miserable and anxious.[8] He was referred by Dr McDonald to Ms Sharon Anderson, clinical psychologist, for treatment. She first saw the plaintiff on 14 September 2004 where he described that the referral was for “physical injury to his elbow and grief issues re loss of a close friend”. It was not until the second session that Ms Anderson obtained a history of the 1988 incident and diagnosed PTSD as a result.

[8]             PCB 59

24        Much was made of this history to Ms Anderson in the first session in the course of cross-examination. It was put by Mr Myers, firstly, as a measure of the paucity of the PTSD and its symptoms, that is, that it was not of sufficient severity even to warrant mention to a psychologist, and secondly, as an issue of credit.

25        When put to Dr Clifton in the course of her evidence, she explained it as the plaintiff exhibiting avoidance behaviour. It was difficult, she said, for the plaintiff to discuss the matter, and thus he avoided talking about it, even with a treating psychologist. She said further, that once a relationship of trust had been established, that the plaintiff was able to give a frank history.

26        In the scheme of things, I do not regard the failure to give an accurate history on the first day of a counselling session as a matter of great significance. I accept that the plaintiff would readily avoid talking about the issue, particularly with someone he did not know well, and in any event a history was given on the second occasion, a diagnosis made and treatment commenced from that time. The plaintiff has remained in the care of Ms Anderson seeing her on approximately a monthly basis through to the present time.

27        It was not until the treatment by Ms Anderson, according to the evidence of the plaintiff, that he became aware that the source of his significant psychological symptoms was the 1988 event and his PTSD became florid and debilitating from that time. Ms Anderson began to treat him with cognitive behavioural therapy, and hypnosis. She obtained a history of anxiety, insomnia, flashbacks to the 1988 incident and angry outbursts. Ms Anderson observed a decline in the plaintiff’s concentration and memory, evidence of fatigue and at times severe irritability.

28        I found the affidavit of Mr Norman, the plaintiff’s current principal, of considerable assistance for two reasons. Firstly, it traced the behaviour of the plaintiff over the period from 2001 through to the present time. Secondly, I regard Mr Norman has given an independent perspective of the plaintiff’s behaviour. He has had altercations with the plaintiff from time to time, and particularly in 2009, and one would not expect his evidence being designed to help the plaintiff.

29        He noted that until approximately 2004 - 2005, the plaintiff was an excellent teacher. He assessed the plaintiff as having potential for promotion, and spoke to him on several occasions of the possibility of him becoming an assistant principal. He noted that the plaintiff did have some relationship difficulties with students and parents, but these were not substantial. He was aware of the 1988 incident, and formed the opinion that “Alan’s increasing stress and interpersonal difficulties were linked in some way to the proximity of the swimming program”.[9]

[9]             PCB 27

30        After 2004-2005, he considered that the plaintiff’s ability to “see things rationally deteriorated”. He was sufficiently concerned about the plaintiff’s conduct in 2006 to contact the Department of Education and obtain medical advice. There were interpersonal conflicts in which he would be involved on a regular basis. His involvement in administration deteriorated. Mr Norman considered that he no longer had the degree of rational thought and understanding necessary for him to become a principal or assistant principal.

31        I accept the evidence of Mr Norman as to the change in the plaintiff’s behaviour over the relevant period of time.

32        In 2005, the plaintiff’s general practitioner, Dr McDonald, commenced treating him with Zoloft, and with the counselling provided by Ms Anderson, the plaintiff’s general condition started to improve. Gradually, his nightmares and flashbacks became less intrusive. He had returned to work on a full-time basis. According to the history given to Dr Kaplan, psychiatrist, in his report of 6 September 2007,[10] he was able to go to the Pool without anxiety although occasionally experiencing disturbing dreams. He had enrolled to renew his swimming teacher qualification, but was unable to complete the practical aspect of the qualification. He had regained a normal range of emotions, and his self-confidence improved. Although he had thoughts about death, he had no thoughts of suicide. The panic attacks that he had previously encountered had subsided and he was more even-tempered, and less irritable. His problems with short-term memory and concentration had improved, as had his sleep pattern. Generally, he considered that his overall psychological health had been improving. He had resumed a range of social activities, and his relationship with his family was improving.

[10]           PCB 47

Brain Tumour

33        In approximately April 2008, the plaintiff suffered a seizure and was diagnosed as having a malignant brain tumour. He underwent surgery at St Vincent’s Hospital for the removal of the tumour and thereafter had radiation treatment over six weeks. He was away from teaching for most of 2008, and returned in January 2009 teaching for nineteen hours per week with restrictions. He was unable to work in the area of physical education or sports coaching. With rehabilitation, his condition generally improved, and weakness of his left side, which he had suffered since the seizure, was significantly better. Upon his return to the school, he still had difficulties with anger and various psychological problems which he related to the 1988 incident.

34        As part of his rehabilitation, he was referred to Dr Dianne Clifton, psychiatrist, whose main interest was in the area of psychological treatment of cancer patients, although she had experience in treating PTSD. She treated the plaintiff from July 2008 through to the present time, and has seen the plaintiff on at least twenty occasions.

35        By December 2008, she noted the plaintiff was feeling better, that his memory and concentration had improved and that his energy levels had increased. She obtained a history of symptoms consistent both with the trauma related to the brain tumour, and PTSD. Various scans carried out throughout 2009 showed that there was no recurrence of the cancer. She diagnosed him as suffering an Organic Mood Disorder related to his recovery from the surgery. This was due, in part, to the removal of a large section of his frontal lobe that affected social responses, judgment and impulsivity. Further, the radiotherapy, and the use of various medications to treat his cancer also contributed to that Organic Mood Disorder.

36        According to Dr Clifton, the symptoms of the PTSD exacerbated that Mood Disorder and made the plaintiff more vulnerable to anger and feelings of rage.

37        Dr Clifton said on four occasions during the course of her treatment she had cause to observe the plaintiff in a state quite different to his usual self.[11] On those occasions, she considered there had been some triggering of his PTSD symptoms, usually by some episode related to the 1988 incident. She said:[12]

“On those occasions he appeared to be a little bit dissociated when he came to see me, quite highly anxious. He was obviously speaking with difficulty; his mouth was very dry. He told me he felt the taste of cement in his mouth and he was very agitated, and that was not a common presentation. He’s normally in a very meditatively calm state at his consultations.”

[11]           T 83

[12]           T 83 L20

38        She considered that these episodes were classic reactivation of PTSD, and were not related to his brain tumour.

39        Dr Clifton prescribed a number of medications, including sodium valproate, in respect of which there was difficulty attaining therapeutic levels, and Dexamethasone. She observed that the plaintiff had obtained strategies by which he had been able, in part, to deal with the PTSD. When he felt anger or confrontation, he was mostly able to walk away from the situation. But on occasions when he perceived people were not doing their job properly, he became enraged. She did not consider the plaintiff capable of working in full- time employment as a classroom teacher, nor as a principal or assistant principal. She considered that a stressful classroom situation would lead to confrontations.

40        By June 2009, the plaintiff had increased his hours to 22.8 hours per week, performing various classroom duties, although not in the area of physical education.

The Incident of July 2009

41        On 27 July 2009, the plaintiff, in the course of a class, started yelling at students. He was required by another teacher to leave the classroom, and was taken to the principal. He had a significant disagreement with Mr Norman, and on 5 August 2009, was suspended from the school pending a medical examination. At that time, he was only working about three days per week, and stated that he was struggling to cope with that work.[13]

[13]           PCB 20B

42        As a result of this episode, the plaintiff was referred to Dr Hollander, consultant psychiatrist, to report as to his fitness for teaching. His report was tendered into evidence.[14] Dr Hollander received a history that in the incident (described as having occurred on 3 August 2009), the plaintiff had yelled at the students, that he was agitated, and felt that he did not have support from other teachers, and the principal. He yelled abuse at the principal to the point where Mr Norman locked his door. Dr Hollander also received a comprehensive history of the incident of 1988, and the brain tumour in 2008. The plaintiff reported that his treatment from both Ms Anderson and Dr Clifton was effective and had been of assistance in enabling him to cope with the various symptoms, particularly of PTSD. He considered the plaintiff as suffering a Mood Disorder due to a combination of the brain tumour and his treatment with the medication, Dexamethasone. As a result, the plaintiff experienced symptoms of mood lability and irritability. Dr Hollander did not detect any specific depression or anxiety. He noted that the plaintiff had a pre-existing condition of PTSD, although thought that those symptoms were generally in remission. Notwithstanding, he said these symptoms were likely to have contributed to the difficulty with relationships in the workplace, and made the plaintiff more vulnerable to mood disturbance as a result of the brain injury. He considered the plaintiff unable to conduct himself in an appropriate professional manner in his interactions with students, colleagues and management of the school. He thought the plaintiff had a limited degree of insight. As at August 2009, Dr Holland thought that he was medically unfit to be able to resume care of his students. As to the future, he said:[15]

“… it is possible that Mr Campbell will be sufficiently recovered from his medical condition such that he could return to duties in the future. This will depend, however, upon the degree of his response to further treatment and interventions. As noted above, a period of at least two months’ further time completely off work together with further psychiatric treatment during this time would be required to achieve such stabilisation prior to his being eligible for re-assessment for fitness for duties at that time.”

[14]           Defendants’ Court Book (“DCB”) 98-111

[15]           DCB 109

Current Situation

43        The plaintiff has not resumed teaching duties, but according to the advice he has received from Dr Clifton and Dr Hollander, and subject to his medication levels found to be in the therapeutic range, he hopes to return to the Narre Warren North Primary School early next year, initially working two-and-a-half days per week.[16] He has not resumed his involvement in coaching basketball, nor various sporting committees in which he was previously involved.

[16]           T 158-9

44        At the current time, he takes Epilim (sodium valproate), Dilantin, Zoloft and Dexamethasone. He stated he feels anxious, depressed and sad and claims his memory and concentration have been greatly affected. He says he feels tired and his sleep is disturbed.

45        Although his treatment at the hands of Dr Clifton and Ms Anderson has provided him with various coping mechanisms, he still suffers anger and stress and becomes particularly agitated if he is reminded of the 1988 incident.

46        The plaintiff was cross-examined extensively in relation to the histories given to a number of practitioners, in particular Dr Hollander in August 2009,[17] in which he said:

[17]           DCB 102-104

• That things were going pretty well at the present;

• That there was a grieving process with the brain tumour illness but that he had been fantastic and was receiving support from family and his psychologist;

• There had been no depression in 2009;

• His sleep had been normal, and his appetite good;

• He was able to exercise three times a week;

• He was actively engaged in a range of his usual interests;

• His concentration was back to normal;

• He had no suicidal ideation;

• He no longer experienced panic attacks.

47        Further, in the course of the history provided to Dr Clifton, the plaintiff gave a history as at December 2008 which included:

• That his mood was 8 to 10 out of 10;

• He had occasional anxious thoughts, but was sleeping and eating well;

• His energy was back to 70 per cent;

• His illness (the brain tumour) had been devastating, but enlightening with a lot of positives;

• That he had fully embraced his treatment which had considerably improved his condition.

48        Generally, the plaintiff accepted, in cross-examination, the accuracy of these histories.

Medical Evidence

49        I have referred to, in part, evidence from various of the treating and consulting medical practitioners.

50        In her most recent report, Ms Anderson, the treating psychologist, noted that as at September 2009, the plaintiff was still suffering nightmares relating to the 1988 incident, and that he had recently (August 2009) had an angry outburst against children that he was teaching. She diagnosed the plaintiff as suffering a PTSD and Dysthymic Disorder. She considered the PTSD was still affecting the plaintiff in his performance in the workplace although there had been some improvement overall. She noted the plaintiff was still experiencing pathological anger and as a result, it was unlikely he would make a full recovery. She considered it as unlikely that the plaintiff would return to full-time teaching.

51        The plaintiff was examined by Dr Kaplan, consultant psychiatrist, in September 2007.[18] He also considered the plaintiff was suffering PTSD as a result of what he described as a terrifying and deeply distressing experience in 1988. Dr Kaplan considered that the plaintiff’s mood was depressed and that he was still experiencing anxiety and panic attacks. There was avoidance behaviour and hypervigilance. He considered the plaintiff had become volatile, obsessed with safety and overprotective. The PTSD had not resolved and the plaintiff remained vulnerable. He had received considerable benefit from the treatment from the psychologist and had learnt techniques which had enhanced his ability to cope with stressful situations.

[18]           PCB 41-58A

52        When he further examined the plaintiff in January 2009,[19] he noted that the plaintiff was still suffering flashbacks, although less frequently, and nightmares. He thought the plaintiff’s memory and concentration were improving, and that his appetite was intact. He had resumed social activities. He acknowledged that the plaintiff had suffered a depressive response to the diagnosis of a brain tumour, but that depression had gradually subsided and largely resolved. He thought the prognosis in relation to the reaction to the brain tumour was favourable. In relation to the PTSD, he noted that the symptoms had continued to gradually subside, but had not resolved and he considered the plaintiff remained vulnerable and emotionally fragile.

[19]           PCB 53

53        Several reports of Dr Clifton were tendered, and I had the benefit of her viva voce evidence. I was impressed with Dr Clifton. She gave evidence in a measured, careful, but authoritative manner. She noted in her report[20] that the symptoms of the PTSD were generally regulated by the strategies that the plaintiff had learned in the course of treatment. These included being able to walk away from a situation. However, the plaintiff was left very vulnerable to becoming enraged, and subject to triggers of rage when exposed to situations which were in some way related to the 1988 incident. As stated, she had observed him in dissociated moods on a number of occasions. She considered that the symptoms of PTSD were likely to be ongoing, particularly when specific stressors were brought to bear, and this was likely to continue in the long-term. On balance, she considered that his current psychological symptoms were contributed to a significant degree by the 1988 incident. She did not consider the plaintiff was capable of working on a full-time basis either as a principal or assistant principal, or as a classroom teacher.

[20]           PCB 67F

54        She noted[21] that the plaintiff consumed significant energy by adopting the mechanisms to keep his PTSD symptoms under control. The symptoms of PTSD that he was suffering would have been maintained regardless of the brain tumour and its treatment. Leaving aside the effects of the brain tumour, Dr Clifton was asked the extent of the limitation the PTSD would have upon the plaintiff’s working capacity. She stated, accepting that she had not known the plaintiff without the consequences of the brain tumour and its treatment:[22]

“… but I do believe from the history that I have seen that I think he would be in great difficulty being in a senior role in a school for a full-time job, because he would inevitably get into a situation where he feared for the safe management of somebody, and he would escalate into a high anxiety state, and possibly not enjoy good harmonious relationships with his colleagues. …

I don’t believe that he should or would work full-time. One of the consequences of his Post-Traumatic Stress Disorder is that he has information overload problems, and that’s going to be too technical, but when people develop intrusive recollections there is a process in what we understand of the neuroplasticity of the brain that certain pathways get, sort of, grooven into, if you like, at the expense of alternative pathways, so that the rapidity of the length between synaptic connections sort of favour this certain route, and other synaptic connections kind of atrophy because they’re not being used, so that they call it top-down activation, and it means that more and more stimuli are recruited into that particular pathway which relates to the trauma. …

So high stimulus environments, like even a staffroom chat, is an overwhelming kind of environment, and Mr Campbell has described to me that he has to leave staffrooms because he just can’t process what’s going on and he gets very stressed. …

I don’t think that he would have the mental stamina to do that [work full- time] because he would be spending quite a lot of his energy in the ways in which he has attempted to manage his symptoms over a number of years, which is, you know, taking himself away from the situation, avoiding reminders and so on. I think that actually takes quite a lot of energy. … .”

[21]           T 86-89

[22]           T 87 L19

55        Dr Clifton went on to note that the plaintiff would have outbursts which would lead to conflict with his colleagues and would have information overload in the course of meetings.

56        The plaintiff was also examined by Associate Professor Malcolm Hopwood in August 2009.[23] He obtained a history of various symptoms consistent with a diagnosis of PTSD. These included flashbacks to children trapped under bricks sufficient to wake him from sleep in a highly aroused state. Treatment had improved the situation, but he still had these flashbacks at least monthly, triggered by various contact with disabled children or the Pool. Associate Professor Hopgood considered the plaintiff was suffering PTSD with a partially remitted major depression. He considered that the symptoms of PTSD would be exacerbated when the plaintiff was in a stressed situation. The major depression was contributed to by a range of factors, including the PTSD, his premorbid obsessional personality, and his brain tumour and its treatment. He considered the delayed onset of PTSD symptoms as relatively unusual and it may have been that the symptoms of anxiety described to the plaintiff’s earlier general practitioner were in fact symptoms of PTSD, then undiagnosed.

[23]           PCB 67H - 67M

57        Associate Professor Hopgood considered that the PTSD symptoms would cause difficulty in coping with significant responsibility, including time pressure, and that that disorder contributed to the plaintiff’s obvious inability to reach the position of an assistant principal or principal.

58        On behalf of the defendant, the plaintiff was examined by Dr Timothy Entwisle, consultant psychiatrist, on a number of occasions, including October 2009.[24] He obtained a history of symptoms not dissimilar to the other practitioners. These included anxiety, avoidance and hypervigilance, with flashbacks to the incident from time to time. He noted there were various “blowouts” of the condition, including in September 2009, on which occasion Dr Entwisle noted that the plaintiff had lost control, become argumentative and yelled at another teacher. He noted that the plaintiff was by nature an obsessional person who had developed PTSD following the incident of 1988. In addition, the condition was complicated by the cerebral tumour of 2008 with changes consistent with a Frontal Lobe Syndrome. His diagnosis was one of PTSD complicated by tumour and brain surgery. He considered the plaintiff was fit for full-time pre-injury duties in relation to his PTSD symptoms. The reduced work capacity when he saw the plaintiff in October 2009 was as a result of his brain tumour, and not PTSD.

[24]           DCB 93-97

59        As earlier stated, Dr Yitzchak Hollander, consultant psychiatrist, saw the plaintiff on one occasion in August 2009. He considered the plaintiff suffering from a Mood Disorder due to a combination of the brain injury, and the medication, Dexamethasone. While there was no specific evidence of depression nor anxiety, the symptoms of mood instability, according to Dr Hollander, were related to the Mood Disorder, and contributed to by “identified workplace issues of concern”. He considered that the symptoms of PTSD were generally currently in remission. They, however, were likely to have contributed, at least in part, to pre-existing residual difficulties with interpersonal relationships in the workplace. Furthermore, the PTSD was likely to have contributed to the plaintiff’s vulnerability to experiencing mood disturbance from the brain injury, although the symptoms of PTSD and depression appeared to be largely in remission.

Submissions on behalf of the Defendant

60        Mr Myers submitted that all of the psychological symptoms from which the plaintiff was suffering over the years until 2004 were minor, and due to stressors unrelated to the episode of 1988. These included the arrival of his children, an allergy to dust, and stress and conflicts with teachers and children at work. None of these symptoms, said Mr Myers, could be attributed to the subsequently diagnosed PTSD.

61        When he first was examined by Ms Anderson, psychologist, it was significant, according to Mr Myers, that there was no reference to the 1988 incident. This was a measure, he said, of the relative modesty of the condition and its symptoms. Further, there was no evidence of a history of the 1988 incident to his general practitioner.

62        Since that time, there had been an attribution of all of the plaintiff’s problems to the 1988 incident, whereas there were other significant factors in the plaintiff’s life to which those symptoms could be related.

63        Mr Myers noted that the plaintiff had not made application for jobs as an assistant principal. Had he had a true desire to attain that post, he would have made such applications. The evidence of the plaintiff that he had in fact applied for two positions was a recent invention.

64        Of most significance, said Mr Myers, was the history provided to various practitioners, particularly Doctors Hollander, Clifford and Kaplan. These various histories indicated that, in particular in the period prior to the diagnosis of the plaintiff’s brain tumour:

• that the plaintiff’s mood was stable;

• the plaintiff was not clinically depressed;

• there were no panic attacks, save for an episode when the plaintiff woke up in hospital after the brain surgery;

• there were no identified behavioural problems;

• whatever mood related problems had occurred after the brain tumour, were related to that and the failure to have the medication at an appropriate therapeutic level;

• the plaintiff was feeling 8 to 10 out of 10;

• there was no suicidal ideation;

• the plaintiff had developed a coping strategy as a result of his treatment with the psychologist which was effective in dealing with particularly his anger and aggression.

65        To the extent, said Mr Myers, that Dr Clifton’s opinion was that the plaintiff still suffered from significant symptoms of PTSD which affected his work capacity, he submitted I should not accept her opinion, as she had not treated the plaintiff for the PTSD, and the focus of her attention was the psychological symptoms arising from the brain tumour. Even Dr Clifton accepted that her opinion was marred.[25]

[25]           T 100 L18

Conclusions

66        I accept the plaintiff, prior to the incident of 1988, was a teacher of reasonable competence and ability, and with aspirations to progress to the position of assistant principal or principal. That incident was a particularly distressing and traumatic affair and the plaintiff not only witnessed severe injury to a number of students who were under his care at the time, but assisted in their removal from the rubble, and recovery by ambulance officers. In my view, such an incident would be certainly capable of generating a PTSD.

67        It appears from the report of the plaintiff’s treating general practitioner, Dr Demediuk,[26] that the plaintiff suffered a range of symptoms of anxiety and depression over the years until 2004. I cannot, however, be satisfied upon the evidence that these were related to an underlying PTSD, as a number of doctors have referred to the difficulty of attributing these symptoms to that condition.

[26]           PCB 61-62

68        I accept that the plaintiff had a significant flashback episode in 2004 when he attended the Pool and that as a result of this, he consulted his general practitioner, and was referred to the psychologist, Ms Anderson, in whose care he has remained to the present time. While, as Associate Professor Hopwood states, it is somewhat unusual to have a delayed onset of symptoms of PTSD as occurred, nonetheless, I am satisfied that that is what did occur, that the plaintiff had either not had symptoms, or suppressed them over a considerable period, and the disorder did not achieve the florid state until 2004. At that time, the plaintiff complained of various symptoms, including nightmares, flashbacks, anxiety and difficulties with sleep. In particular, he suffered anger and stress when triggers were presented to him, and this led to particular difficulties coping both with the students he was managing, and other teachers at the Narre Warren North Primary School. It is particularly significant, in my view, that the evidence of Mr Norman, the principal of the school, was that the plaintiff was coping well up until that time, and in fact he had spoken to the plaintiff on a number of occasions about the prospect of promotion to assistant principal or principal. I am satisfied that the plaintiff’s condition took a very significant turn in 2004 and that the symptoms referred to had a very considerable impact upon him generally, and in particular upon his relationship with his family, and his capacity to maintain full-time employment as a school teacher.

69        There is little doubt that the diagnosis and consequent surgery and treatment for the malignant brain tumour had a very considerable impact upon the plaintiff’s life. I accept the evidence of Dr Clifton, that he developed an Organic Mood Disorder, which required treatment, and that generally he became depressed and anxious, as one would expect as a normal reaction in the circumstances. I am further satisfied that with treatment, particularly medication provided by Dr Clifton, that his reaction to the tumour has been considerably improved, assisted by various subsequent scans of his brain which have proved no development of the disease.

70        The episode of July or August of 2009 where he lost control of his emotions in the presence of students and teachers is evidence, according to the views of Dr Clifton, of the underlying PTSD, probably complicated by the Mood Disorder as a result of the brain tumour. It is clear that with the assistance, particularly of Ms Anderson, that the plaintiff has obtained an array of mechanisms to deal with his symptoms, particularly of anxiety, anger, nightmares and flashbacks which were all related to the PTSD. While on the one hand the symptoms of PTSD appear relatively in control, particularly upon reading the histories provided to Doctors Kaplan, Clifton and Ms Anderson, on the other hand the plaintiff has been left in a very vulnerable state.

71        I was impressed by the evidence of Dr Clifton, and accept her opinions. She notes that while the plaintiff is able to cope at a superficial level, he remains vulnerable to triggers which may set off the PTSD, causing anger, frustration, and the inability to process information in the same manner as before. The mechanisms that the plaintiff has acquired consume considerable energy and leave the plaintiff particularly vulnerable if there is a trigger associated with the 1988 incident, or some conflict in the workplace. If these occur, as happened on a number of occasions in the presence of Dr Clifton, the plaintiff is left in a somewhat dissociated state, angry and aggressive and incapable of performing his duties.

72        In particular, I accept the evidence of Dr Clifton that as a result of the PTSD, the plaintiff is unable to teach on a full-time basis as he is unable to cope with the pressures of a classroom situation, and unable to harmoniously exist with co-teachers, and management of the school. While it is undoubtedly the case that the plaintiff’s current unemployed status is as a result, at least in part, of the brain tumour and its treatment, a significant component is also related to the PTSD. I further accept the opinion of Dr Clifton that the plaintiff’s aspirations to become an assistant principal or principal are lost to him. I am satisfied that the plaintiff’s condition is permanent, in that it is likely to persist for the foreseeable future. No doctor offers the prospect of significant remission from the Disorder with any treatment in the future.

73        Given the plaintiff’s application is brought under subsection (c) of the definition of “serious injury” as contained in s.135A(19), the word “severe” is a word of stronger force than “serious”. The definition of “serious injury” includes, according to the authorities, that the consequences to a particular plaintiff are more than significant or marked, to the point of being very considerable. In a psychological disorder, those consequences must be to a higher level than “very considerable”.

74        I am satisfied the consequences to the plaintiff achieve the “severe” level. The plaintiff’s life has been very significantly disrupted by the consequences of the PTSD. It has required very extensive and intense treatment, particularly by Ms Anderson, over a considerable number of years. The plaintiff is on a range of medication designed to ameliorate his psychological condition. His relationship with his wife, and particularly his children have been significantly affected. Perhaps most important of all, is that his aspiration for promotion as a teacher has been affected not only that he is able to work only two or three days per week, but his hopes of a position as principal or deputy principal are now lost.

75        Further, I am satisfied that the plaintiff was not aware that the symptoms of PTSD achieved the “severe” level until after September 2004, when he commenced treatment with Ms Anderson. He therefore achieves the test as set forth in s.135AC(b), in that he was not aware that the severe level of incapacity arising from injury occurred until after that date.

76        In all these circumstances, I am of the view the plaintiff’s application should succeed. I shall grant leave for him to bring proceedings with consequent orders as to costs.

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