Clough v Victorian WorkCover Authority
[2020] VCC 803
•17 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03362
| DAVID WILLIAM CLOUGH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 8 May 2020 | |
DATE OF JUDGMENT: | 17 June 2020 | |
CASE MAY BE CITED AS: | Clough v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 803 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Psychiatric condition resulting from previous employment – carryover of psychiatric symptoms to employment with Council employer – development of a psychiatric condition resulting from employment with Council employer – whether the psychiatric condition was an aggravation of the diagnosis of the previous psychiatric condition – whether the loss of earning capacity consequences when judged alone met the statutory test of seriousness – creditworthiness and reliability – contradictory evidence given by the plaintiff of which psychiatric symptoms were attributable to which employment – rationalisation of the plaintiff’s overall evidence.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff granted leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC Mr P Lamb | Zaparas Lawyers |
| For the Defendant | Ms A Magee QC Ms M Tsikaris | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff suffered a very disabling psychiatric condition during the time that he was a serving police officer with Victoria Police. He commenced his time as a police officer on 19 November 1971 when he graduated as a police constable. He resigned in December 2007 after achieving the rank of Senior Sergeant.
2 The plaintiff subsequently obtained employment with Monash City Council as a bylaws officer in mid-2010, and then with Whitehorse City Council as a senior community laws (parking) officer on 4 October 2010. He was later given the additional duties of the Assistant Manager, Community Laws. It was as a result of the combination of undertaking the work involved in those two roles, and the poor human resources management by a superior, that he again suffered a very disabling psychiatric condition.
3 Essentially, the plaintiff says that he had virtually recovered from the psychiatric condition he suffered in his employment with Victoria Police. He submitted that the psychiatric condition he suffered with Whitehorse City Council amounts to a permanent severe mental or permanent severe behavioural disturbance or disorder.
Appearances
4 Mr S Smith QC appeared with Mr P Lamb of counsel for the plaintiff. Ms A Magee QC appeared with Ms M Tsikaris of counsel for the defendant.
Executive summary
5 I am satisfied that the psychiatric condition which the plaintiff suffered in his employment with Whitehorse City Council has both pain and suffering and loss of earning capacity consequences which meet the relevant statutory test.
The issues
6 The plaintiff submitted that an analysis of the primary evidence demonstrates that by the time the plaintiff commenced his employment with Whitehorse City Council, he had essentially recovered from the psychiatric condition he suffered in his employment with Victoria Police.
7 Furthermore, the plaintiff submitted that an analysis of the primary evidence relevant to his employment with Whitehorse City Council demonstrates that he subsequently suffered a psychiatric condition which has both pain and suffering and loss of earning capacity consequences which meet the statutory test.
8 The defendant submitted that an analysis of the whole of the evidence demonstrates that the plaintiff’s submission is superficial and cannot be sustained. It submitted that there is a significant commonality in the underlying symptoms of the diagnosis of the psychiatric injury which the plaintiff suffered in his employment with the Victoria Police when compared with the psychiatric injury which the plaintiff suffered in his employment with Whitehorse City Council.
9 Furthermore, the defendant submitted that the plaintiff is not a witness of truth and that there are a substantial number of instances where that is evident, making this very much a case about the plaintiff’s creditworthiness and reliability.
10 The plaintiff and the defendant emphasised that the starting point is to determine the underlying symptoms of the diagnosis of the psychiatric injury which the plaintiff suffered in his employment with Victoria Police. Then, whether those symptoms persisted after he commenced employment with Whitehorse City Council, and what further symptoms the plaintiff suffered in his employment with Whitehorse City Council, and whether the aggregate of the latter, when analysed, meet the statutory test of seriousness.
Victoria Police
11 The plaintiff swore three affidavits, in two of which he described the duties he performed which he says resulted in him suffering a very disabling psychiatric condition. The first affidavit was sworn on 4 November 2013 in support of a previous application which was discontinued. The second affidavit was sworn on 14 March 2019 in support of this application.
12 In the second affidavit, the plaintiff described only very briefly the police stations from which he was required to work as a police officer; the nature of the work he performed at various stations leading up to his resignation in December 2007; his psychiatric situation in 2008, and the treatment he obtained from Dr Ashraf Ebrahim, general practitioner, and Dr Zoltan Okalyi, psychiatrist, in 2009 and 2010, before commencing employment with Whitehorse City Council.
13 It is in the first affidavit that he described work which he says contributed to the psychiatric condition which resulted from his work with Victoria Police. The volume of the discrete aspects of his work which he said made that contribution are too voluminous to set out here, so I will summarise them to the extent that I think is necessary:
· Investigating fatal accidents
· Exposure to suicides and murder suicides
· Exposure to horrific deaths in traffic accidents
· Dealing with the parents of deceased children
· Informing the next of kin of the death of a person
· Exposure to other incidents, for example bushfires, train accidents and multiple fatalities, some involving children
· Bullying by a subordinate officer, witnessing that subordinate bullying other police officers, and being the victim of false complaints of misconduct by that subordinate officer. The false complaints led to the plaintiff being investigated by Ethical Standards.
14 Toward the end of the plaintiff’s career as a police officer, he was told that he would be suspended because he was allegedly working at the MCG as a safety officer when he should have been undertaking duties as a police officer. He spoke to a senior officer, who told him, in effect, that he had no choice but to resign to avoid being suspended and his alleged wrongdoing remaining on his record. The plaintiff then resigned from the police force.
Victoria Police psychiatric condition
15 The plaintiff described being in a “vulnerable state” because of the bullying by the subordinate officer. In the six months following his resignation, he said that he “spent the next six months in a deep depression”. It was during that period that his marriage became very strained, and he had the tendency to cry “at the drop of a hat”. It would appear that he spent almost the whole of 2008 in that state of deep depression. He then attended Dr Ebrahim, and subsequently, Dr Okalyi.
The first affidavit
16 The first affidavit was sworn by the plaintiff in support of an application for serious injury. The defendant to that application was “State of Victoria (Victoria Police)”. By the time the plaintiff swore that affidavit, he had ceased working for Whitehorse City Council from 10 July 2013 due to the stress which he said he was under because of his workload and bullying.
17 The defendant submitted that the plaintiff did not refer to the problems he was having in his employment with Whitehorse City Council in the first affidavit. The only reference he made to Whitehorse City Council was brief. He attributed the cause of his psychiatric condition entirely to his employment with Victoria Police. Additionally, the defendant submitted that it was simply not possible to reconcile the contradictions in the first and second affidavits when the content of each are compared.
18 The plaintiff submitted that whilst the first affidavit does attribute the whole cause of the plaintiff’s psychiatric condition to his employment with Victoria Police, that can be explained by reference to the primary evidence which makes it clear that he had essentially recovered from the psychiatric condition he suffered in his employment with Victoria Police.
The psychiatric condition – Victoria Police
19 The first medical practitioner consulted by the plaintiff was Dr Ebrahim. The plaintiff said that after he resigned, he attended Dr Ebrahim in December 2009. He prescribed the plaintiff Avanza. Dr Ebrahim’s clinical notes reveal that he saw the plaintiff on 14 December 2009. The note merely records the following - “submit as a mental health care plan”.
20 Dr Ebrahim referred the plaintiff to Ms Diana Arzuman, psychologist, for treatment for what he suspected was a Post-Traumatic Stress Disorder. Whilst his clinical notes are not so edifying, the referral letter to Ms Arzuman is. He set out the following in that letter:
“Thank you for seeing Mr David Clough, 56 yrs, who has been urged by his wife to seek help regarding emotional lability. He cries at ‘the drop of a hat’. He cries in public and when watching televis[i]on and listening to songs on the radio.
There are no symptoms [of] depression, no anhedonia, he has no neurovegetative symptoms.
He worked 37 years in the Police force mainly in the western suburbs. He finally got fed up with the Police Force when allegations of impropriety by disgrunt[l]ed co-worker who was being investiagatd (sic) for bullying. The (sic) amounted to disposal of a few tyres and working at another venue while on the job. He was told he would be suspended with pay while they waited to interview him. The department dragged their heels in investi[g]ating this matter and this was the straw the (sic) proverbial broke the camel’s back. He resigned and the department, which failed to interview him, decided not to take action.
[H]e has seen some … horrific accident and crime scenes but is able to deal with this. He does find that he is still affected by seeing children dying.
I suspect there is some post traumatic stress disorder. … .”[1]
[1]Letter dated 27 November 2009 – Plaintiff’s Court Book (“PCB”) 33
21 Ms Arzuman treated the plaintiff from about the time of the referral. She replied to Dr Ebrahim by letter dated 16 June 2010. By that time, she had seen the plaintiff on twelve occasions. She reported:
“David presents with symptoms consistent with depressions, anxiety and stress. He experiences extreme levels of emotionality, resentfulness towards his previous workplace, sleep disturbances as well as vivid disturbing dreams.
Intervention to date has included Cognitive Behavioural Therapy (CBT). David showed some improvement but not much. I asked him to get back to you for a possible referral to a psychiatrist.
… . ”[2]
[2]PCB 73
22 Dr Ebrahim then referred the plaintiff to Dr Okalyi, psychiatrist. The letter of referral to Dr Okalyi is in much the same terms as the letter of referral to Ms Arzuman.
23 Dr Okalyi first saw the plaintiff in July 2010. He replied to Dr Ebrahim by letter dated 19 July 2010. He reported:
“… He described many years of emotional lability, with the tendency to cry unexpectedly as you describe. He feels that this has a lot to do with his former job as a police sergeant, where he saw some terrible accidents, dead children etc on a regular basis.
…
Things have become worse over recent months. He describes sleep disturbance, dreams of accidents, night sweats, forgetfulness, lack of energy, and a tendency to become irritable. This has impacted quite severely on his marriage, and he feels that his wife actually wants to separate.
He only took the Avanza you prescribed for three weeks, because his wife threatened to leave if he took ‘mind altering drugs’.
He presented as a friendly, open man with warm affect. He was not obviously depressed, but had a marked inability to talk about his feelings. He said ‘I need to control my feelings’, but also ‘I felt better about the past when I spoke about it’.
He certainly fits the picture of a post traumatic stress disorder, based on his long history of severely traumatic experiences in the course of his work. I have no doubt that he has some chronic depression as well as residual grief and anger, which he is quite unable to express. These emotions surface when there is a trigger such as a sad movie.
His management is complicated by his wife’s attitude. I have asked to see her, but she is unlikely to come. He will need considerable work to gradually open up, and almost certainly will require antidepressants also. I think he will require considerable work, but would do better if his wife also becomes involved. … .”[3]
[3]PCB 52
24 The plaintiff retained a solicitor to bring a claim against the State of Victoria in its responsibility for the conduct of Victoria Police. It was that solicitor who filed the first affidavit. In response to a request from that solicitor for a medical report, Dr Okalyi provided a medical report dated 29 March 2011. He repeated much of what he recounted to Dr Ebrahim in his letter dated 19 July 2010, but, relevantly, he reported the following in the context of the plaintiff’s work as a police officer:
“I regarded him as suffering from a moderately-severe post traumatic stress disorder with associated chronic depression, precipitated by these work stresses, as well as the accumulated effects of many years of dealing with very distressing cases in the course of his work.
He has responded to treatment with supportive therapy and antidepressant medication with Avanza 45mg daily, and has been able to return to work in a different field.
I believe that although he has made a significant degree of progress, some of the emotional effects, and his vulnerability to depression and anxiety will remain. I believe that his condition is now stabilised.
He will require intermittent medication[,] supervision and antidepressant medication in the foreseeable future.
His prognosis for maintaining this degree of stability is good, but I regard him as vulnerable to deterioration if he is subject to significant stress in the future.”[4]
[4]PCB 53
25 Dr Okalyi’s next report is dated 29 August 2013, addressed to the Accident Compensation Conciliation Service, well after the plaintiff had ceased working for Victoria Police. It is very apparent that Dr Okalyi was in a very good position to describe the plaintiff’s psychiatric condition when he commenced work with the Monash Council and Whitehorse City Council. He reported:
“He was treated with the antidepressant Avanza and supportive psychotherapy, and his condition improved markedly during the second half of 2010. After leaving the Police Force he worked for the Monash Council, then accepted a job with the Whitehorse City Council in October 2010.
At this stage he was very well, able to enjoy outside activities and interests, and his mood was stable for many months. In December 2010 he reported that he was promoted at work, and he was very enthusiastic about his job.
During 2011 he was generally stable and functioning reasonably normally, although there were several episodes of brief recurrent depression and anxiety, each time associated with conflicts and problems at work. His condition deteriorated in early 2012, and he began to recount frequent episodes of what he regarded as unfair and unwarranted criticism by his manager, and increasing work load which produced an increasingly stressful work environment.
During this period his anxiety symptoms began to recur more severely, his depressive mood deteriorated in spite of the antidepressant therapy, and he suffered several bouts of chest pain. … .”[5]
[5]PCB 57-58
26 The plaintiff was examined by two psychiatrists engaged by a WorkCover agent who also provided an assessment of the plaintiff’s psychiatric condition after he resigned his employment with Victoria Police, and at the time when he commenced employment with Monash Council and Whitehorse City Council.
27 The first of those two psychiatrists was Dr Timothy Entwisle. He examined the plaintiff on 14 October 2010. He provided a report dated 21 October 2010. He noted that the purpose of his examination of the plaintiff was relevant to the plaintiff’s claim for medical expenses. The plaintiff lodged a Worker’s Injury Claim Form which he signed on 17 July 2010 alleging that he had suffered post-traumatic stress and Severe Depression resulting from his employment with Victoria Police.
28 Dr Entwisle noted the many traumatic events which the plaintiff encountered in his work as a police officer, his emotional state and the plaintiff’s specific psychological symptoms. In relation to his emotional state, Dr Entwisle recorded the following:
“EMOTIONAL STATE
Mood – ‘Sombre’. He was not talking to people. He was avoiding social occasions.
Spirits – ‘Flat’. He couldn’t be bothered. He was emotionally labile. Little things would cause him to be distressed. He recalls hearing the Police Band Bagpipes resulting in him becoming tearful and had to leave. He lost his ability to laugh. He felt negative.
Anxiety – He was constantly anxious, and his heart would race and he would sweat. He was prevaricating and procrastinating, not starting things and avoiding tasks and relationships.
SPECIFIC PSYCHOLOGICAL SYMPTOMS
Sleep – He would sleep for six hours and have continual dreams of motor car accidents and people jumping off buildings etc.
Energy – His energy levels were low and he was fatigued and lethargic.
Concentration & Memory – At work people were having to follow him up and make sure that he completed things. At home he was forgetful and disorganised and a psychiatric test revealed his organisation skills is operating at a level of two out of ten.
Weight & Appetite – His weight and appetite were variable.”[6]
[6]Defendant’s Court Book (“DCB”) 12
29 Dr Entwisle also noted aspects of the plaintiff’s domestic, social and recreational activities which were a demonstration of the plaintiff’s level of activity at the time when he examined him. He recorded that the plaintiff:
· Enjoyed fishing using a boat
· Did woodwork
· Attended one of his son’s basketball games
· Retained a few friends from his former work with Victoria Police
· While noting that the plaintiff was not an overly social person, he noted that he had some contact with his sisters
· He noted the ages and places of residence of his older children, and that he had a positive relationship with those children, his youngest son and stepson.
30 In summary, he reported the following:
“… Mr Clough’s emotional symptoms are consistent with that of an Adjustment Disorder with Depressed and Anxious Mood and some features of traumatisation. His condition has begun to improve following upon attendance on a Psychiatrist and Psychologist. He is currently being treated with Mirtazapine one daily.
Overall his functioning is beginning to improve and Mr Clough is currently employed with the Whitehorse City Council is a Supervising Local Bylaws Officer. He is having no difficulty managing that role.”[7]
[7]DCB 13
31 The other psychiatrist was Dr Steven Adlard. He examined the plaintiff on 1 February 2012. He provided a report bearing the same date. He also noted the traumatic events the plaintiff had encountered in his work as a police officer, and his current status, which included the plaintiff’s specific psychological symptoms:
“Mr Clough described the following current psychological symptoms:
•That his mood is up and down, but he attempts still to hide his feelings. He said that he doesn’t like being out of control and he is generally determined to try and fight his way through it. He said he believes he is currently a bit depressed but he does pick up work, because this is expected of him and he can also distract himself.
•Some periods of lethargy, or not being bothered, but the ability to enjoy things, such as fishing, watching his son play basketball, or spending time with his wife.
•He denied any suicidal thoughts.
•He reported losing his temper, but not very often, and there was no violence or aggressive behaviour reported.
•He said he had no difficulty getting to sleep, but he wakes at about 4 a.m. and can get back to sleep. He said that all up he slept about 6.5-7 hours per night and that he doesn’t feel tired in the morning.
•He described intermittent nightmares, with no nightmares for three to six months, then a period of three nights in a row, for example, with dreams. He said that the nightmares are always of the same theme; people about to die, for example by falling out of roller coasters or jumping off buildings.
•Reduced memory, requiring the use of notes and colour coding of documents, and impaired concentration.
•Normal appetite.
•Reduced sexual interest, but he couldn’t say when this began, but he believes that it predated the use of antidepressant medication.
•Triggered thoughts which distress him, often provoked by advertisements or news reports. For example, he described one advertisement whereby a policeman tells someone that their family member has been killed, and this distresses him so he tries to avoid watching. He said that car accidents distress him, so he avoids them, and he also reported other triggers which are upsetting, for example when he saw a bride recently and it reminded him of a motor car accident involving a young bride.
•He didn’t describe any hyperarousal to noise or sudden movements, but he said that he always needed to be aware of his surroundings, and he will never sit in a restaurant, for example, unless he can see the entrance/exit. He said that generally he needs to know what is going on around him.
•Being distressed by relatively minor pressure, for example he couldn’t score his sons basketball match the other day, because he felt anxious, even though he knew it was a relatively minor task.
•A preference not to see police or any accidents, and when he passes an accident he doesn’t look at it.”[8]
[8]DCB 18-19
32 Dr Adlard also noted aspects of the plaintiff’s domestic, social and recreational activities which were a demonstration of the plaintiff’s level of activity at the time when he examined him. He recorded that the plaintiff:
· Was “currently” working full time and despite some difficulties being “out on the road” resulting in anxiety, he was managing and working 38 hours per week
· Lived with his de facto wife and their son and his stepson
· Continued working in a part-time job with the Melbourne Cricket Club
· Enjoyed fishing in the bay
· Watched his son play basketball
· Attended movies and dinners with his partner. Did some cleaning and maintenance at his home and assisted his partner with shopping and cooking
· Went on regular holidays.
33 Dr Adlard considered that the plaintiff had a mild Post-Traumatic Stress Disorder. In the context of being told of the plaintiff’s current employment history, he thought that the plaintiff “is able to work full time in his current job though I note that he has had to temporarily at least stop his part-time job because of his overall state”. The reference to the part-time job is a reference to his employment with the Melbourne Cricket Club.
34 Dr White, psychiatrist, examined the plaintiff on 29 July 2013. He provided a report dated 14 August 2013. Dr White is in something of a different position to Dr Entwisle and Dr Adlard. He was asked to consider whether the plaintiff suffered a psychiatric condition resulting from his employment with the Whitehorse City Council. Neither the plaintiff nor the defendant addressed me at all regarding Dr White’s opinion. It is for that reason that I will only address his examination of the plaintiff and opinion briefly.
35 Dr White obtained a reasonably lengthy history of the plaintiff’s presenting condition which summarised a series of psychiatric symptoms reasonably consistent with the aggregate of what other treating and medico-legal medical practitioners had recorded before the date on which Dr White examined the plaintiff. Dr White was aware of the psychiatric condition the plaintiff developed resulting from his employment with Victoria Police, and the complaints he made relevant to his employment with Whitehorse City Council, and the psychiatric symptoms he developed resulting from that employment.
36 Armed with all of the foregoing, Dr White considered that the plaintiff appeared to have suffered from “an exacerbation of a chronic Major Depressive Disorder” which he considered was characterised by persistent low mood and other biological, psychological and social symptoms of depression. He noted the plaintiff’s own assessment that the exacerbation of his chronic depression was due to an unreasonable workload he was expected to carry with the defendant and the lack of support he was provided.
37 The plaintiff submitted that the body of his own evidence and that of Doctors Ebrahim, Okalyi, Entwisle and Adlard demonstrate that he had recovered significantly from the symptoms of the psychiatric condition for which he was treated by Dr Ebrahim and Dr Okalyi following his resignation from his employment as a police officer.
Psychiatric condition – Whitehorse City Council
38 The plaintiff described the work he performed with Whitehorse City Council in his second affidavit from the time he commenced working for it Council up until July 2013 when he ceased working for it. At first, he coped with the work without incident. Then a number of things occurred which triggered the psychiatric condition which resulted from the plaintiff’s employment with it.
39 First was the resignation of a Ms Margaret Spowart, who held the position of Manager, Community Laws. The plaintiff applied for her position. His application was successful. He was told by the manager of Whitehorse City Council, Mr Steven Morrison, that his former position would not be filled, and that he would be expected to perform the work in both roles. That resulted in his workload increasing “dramatically”.
40 The plaintiff then described the course of events as follows:
“On 2 December 2011 I commenced as Assistant Manager Community Laws and was responsible for leading the Council’s community laws and parking laws teams as well as doing my old team leader job. As a result my workload increased dramatically.
In June 2012 an independent review of the department was carried out by a former Whitehorse Council employee Mr Louis Chan. At that time as Assistant Manager Community Laws I had 12 people directly reporting to me.
I felt that I was managing to cope with the parking work, but I was starting to have problems with the required volume of work generally. I went to the HR department and spoke to Marie Johnson to discuss this and get advice about the fact that I now had the job of Assistant Manager as well as parking.
In September 2012, Mr Morrison carried out a performance appraisal and raised issues about my performance which I felt were unjustified. I told him that the volume of work was very stressful and that I needed some help but he was very unresponsive.
On 17 October 2012 a meeting was arranged between Mr Morrison in the presence of HR advisor, Mary Kyriakou, and again performance issues were discussed. I again reiterated that I was having trouble with the volume of work and that I needed assistance and that I was becoming stressed and agitated.
On 1 November 2013 I had an informal meeting with Ms Kyriakou and she told me that she was concerned about me and asked about my work and welfare. I joked with her that I would take another Valium and just get on with things. She made me aware of the availability of the Employee Assistance Program and gave me some additional training material.
I was doing the two jobs with difficulty before my health started to suffer in approximately six months.”[9]
[9]PCB 4
41 The next problem appears to have been the attitude of Mr Morrison to the concerns expressed by the plaintiff about his workload:
“During the time when I was doing the two jobs, Mr Morrison sent me on a double diploma course, and I recall that the woman taking the course sent an email to Mr Morrison saying that I was not coping with the workload.
I was also asked to do extra work while Mr Morrison was absent.
I spoke to Jane O’Grady in Human Resources and also Ms Kyriakou about being asked to do a second job which was effectively changing my job description. In response to my complaints nothing was done.
Despite trying to cope with this workload, when Mr Morrison returned from leave I recall him saying to me that I had not completed various tasks, and I responded by saying that I may not have, because the workload was simply too much for me.
In April 2013 I went to see my GP and told him that I was chronically anxious and that I was suffering from recurring chest pain and that I felt worn out. He increased the dose of Avanza and also Diazepam 10mg for my anxiety.
In April 2013 I started to get chest pains and was taken to hospital. I had extensive testing done and it was considered that I did not have a heart problem but that the chest pains were due to stress. An email was sent to my bosses at the Council from the hospital indicating the cause of the problem was stress.
I was treated at Knox Private Hospital in relation to the heart problems.
I had about a week off work and when I returned to work I had a meeting with Mr Morrison and I recall hoping that the overwork situation would be redressed because my health was suffering. His response was that he would replace Heather Griffiths, who had left sometime previously and whose work I had been doing, and also that he would reduce my workload.
However, during the next three months, not only did Mr Morrison not reduce my workload, but he actually gave me additional work including as bylaws prosecutor.”[10]
[10]PCB 5
42 The next problem appears to have been the actual or perceived bullying which the plaintiff saw evident in the behaviour of Mr Morrison toward him:
“After it was known that my problems were due to stress I found that Mr Morrison was continuing to harass me and was sending me demanding emails. Not only that, but in meetings he was continually picking on me and asking why I hadn’t done things, and telling me what are the things I needed to be do. Unfortunately, he gave me no assistance in how to do these tasks, such as when he gave me the task of drafting some tender documents but did not tell me how to do them or give me any training on how to do them.
Steve would often ask me in a raised voice and in a very curt tone. I often found that the language he used was insulting. It was also the case that he publically (sic) belittled me at meetings and I found that my confidence was continually undermined.
I did complain to Human Resources about the way in which Mr Morrison was treating me, but I found that the complaints were just simply handballed back to me.
I found that in order to cope with the demanding jobs that were given to me my hours were getting longer and longer and that I was usually there beyond 6pm when my official finishing time was 4.30pm. I also started at around 8am and would miss lunch in order to try and keep up with the workload. I also worked occasionally on weekends. My wife was very critical of this and the demands the job was placing upon me.
At the height of my excessive workload I found that Steve had manufactured an excuse to put me on a performance plan. It was at this time that I went to my GP and stopped work because my condition was getting worse.
At that time I was experiencing significant tightness in my chest with my heart racing and also a shortness of breath. I went back to see Dr Ebrahim and he put me off work from 10 July 2013 due to stress. I have not returned to work since this date.”[11]
[11]PCB 5-6
43 Dr Ebrahim wrote to Whitehorse City Council by letter dated 24 July 2013 regarding the development of a psychiatric condition which, at least by implication, he attributed to the plaintiff’s work with Whitehorse City Council. It is entirely consistent with the plaintiff’s account of the downward spiral in his psychiatric condition into 2013:
“Mr David Clough is unable to perform his current duties at Whitehorse city Council.
He is suffering from Depression and Anxiety.
I do not know when he will be fit enough to return to work. This will be in lia[i]son with him/Dr Okalyi (psychiatrist) and myself.
His psychiatrist has advised him to perform none at present.
He has no capacity to perform anything at present.
When he returns to work his work load and hours need to be reduced. Strictly defined psoition (sic).
He is currently taking Avanza 45 mg nightly, Valium 5mg. He has been taking an antidepressnatg (sic) for months and Valium recently.
He needs to reduce the overall workload.”[12]
[12]PCB 40
44 Tracking through Dr Ebrahim’s other letters and reports demonstrates the direct attribution made by the plaintiff to the downward spiral in his psychiatric state to his work with Whitehorse City Council. I think the most informative is his letter of referral to Dr Kothari, psychiatrist, dated 10 December 2015 in which he recounted the relevant history, firstly referring to the development of a psychiatric condition with Victoria Police:
“He was referred to Dr Zoltan Okalyi (Psychiatrist) for further advice and management. He saw him in July 2010. He agreed with the diagnosis of post truamatic (sic) stress disorder with depressive symptoms. He felt that his ex partner’s attitude was complicating the issue and he needed considerable therapy. He was treated with Avanza increasing to 45mg and Valium as required.”[13]
[13]PCB 48
45 Dr Ebrahim then recorded the following history relevant to the plaintiff’s work with Whitehorse City Council, no doubt obtained through his consultations with the plaintiff:
“He was still able to function at a reasonable level and was currently working as a parking officer for the White horse City Council. He was happy with his job till 2011 when he was promoted to assistant manager community laws, with increased responsibility and workload. However due to restructuring changes his old job position was not filled and thus he was expected to do his new job and his old job, essentially doubling his workload. He was expected to perform tasks in the new job he was not trained to do, nor had any experience in, and which were even out of the scope of his position. He continued to complain and ask for a reduction in his work load, however his remonstrations fell on deaf ears. He became increasingly disillusioned, frustrated and anxious resulting … [in] worsening depression and deterioration in functional capacity. His marriage was also breaking down significantly contributed (sic) to his mental status.
In this context he presented with chest pains. He was seen at Monash Heart and invest[i]gated by CT angiography which showed moderate ather[o]sclerotic artery disease to be managed medically. He also had a short stay in the Valley Private Hospital with chest pains, however these were deemed anxiety related and not cardiac in nature. He was advised to take Valium which improved his symptoms.”[14]
[14]PCB 49
46 Dr Okalyi continued treating the plaintiff before the plaintiff was subsequently treated by Dr Kothari. In his last report dated 29 August 2013, in which he described the plaintiff’s predicament in significant detail, Dr Okalyi described the history he obtained from the plaintiff relevant to his work with Whitehorse City Council and the plaintiff’s attribution of that work being a cause of the downward spiral in his psychiatric condition:
“During 2011 he was generally stable and functioning reasonably normally, although there were several episodes of brief recurrent depression and anxiety, each time associated with conflicts and problems at work. His condition deteriorated in early 2012, and he began to recount frequent episodes of what he regarded as unfair and unwarranted criticism by his manager, and increasing work load which produced an increasingly stressful work environment.
During this period his anxiety symptoms began to recur more severely, his depressive mood deteriorated in spite of the antidepressant therapy, and he suffered several bouts of chest pain. These were investigated by cardiology specialists and diagnosed as being stress caused.
By April 2013 he was chronically anxious with frequently recurring chest pain and was describing himself as ‘worn out’ by the excessive work load and by the way he was treated by his manager. At this stage he was treated with increased dose of Avanza (antidepressant) as well as Diazepam 10mg daily to control anxiety. He had to have time off work in April of this year because of the level of stress related symptoms, but returning to work resulted in recurrence and increase of his symptoms. He felt that his manager was ‘trying to get rid of him’, and that his work load was still increasing to a point where he could no longer cope. He was finally put on Work Cover certificate by his general practitioner in July 2013.
At that stage he was suffering from chronic but fluctuating and relatively severe anxiety associated with chest pain, sleep disturbance, social withdrawal, depressed mood, and quite severe exacerbation of these symptoms whenever he had any contact with work or even if he drove past work. These symptoms have persisted, in fluctuating form, to the present day. There has not been any significant improvement, and the ongoing uncertainties and conflicts relating to work had made his condition worse.”[15]
[15]PCB 57-58
47 It is not clear when Dr Okalyi ceased treating the plaintiff, but it is clear that Dr Kothari commenced treating him on 13 January 2016 up to the present time. In his report dated 3 April 2020, Dr Kothari recounted a history of the plaintiff’s work with Victoria Police, and his subsequent employment with Whitehorse City Council. In relation to his treatment by Dr Okalyi, he understood that through that treatment “his mental state and functioning improved significantly” relevant to his work with Victoria Police. In relation to his work with the Whitehorse City Council, he understood that the plaintiff’s anxiety and depression worsened resulting in him not being able to return to work.
48 Relevant to that history, Dr Kothari recorded the plaintiff’s presenting complaints and relevantly among those complaints, the following:
“Mr Clough advised that he avoided dealing with people and hence lived in his motor home and travelled around so that ‘I can stop where I want to and speak with people I want to’. In this context Mr Clough said during his long service with [the] police force he was exposed to a lot of traumatic events e.g. cot deaths of infants, had to snatch [a] baby from mother’s arm, fatal accidents etc. and said ‘I used to see dreams all the time, same type of dreams like people falling off roller coasters but I never see the end results’. He said he had worked at the MCG and seen people jumping off the grandstand. Mr Clough also advised he avoided watching movies as he often became tearful. Mr Clough said he off and on felt depressed, sometimes more than others e.g. christmas (sic) was always a bad time, many accidents on the road and I had to give bad news to families etc. Mr Clough said in the previous five years since stressful times with the council he often got anxious, irritable and easily wound up on things that did not bother him earlier e.g. ‘if a teenager travelling in train put feet on the seat I get very upset’. Mr Clough said he did not experience such emotions while in the police force but [they] became apparent once he left police force. Mr Clough said ‘I wonder [if] my uniform protected me from such emotions and I used to switch off’.”[16]
[16]PCB 65
49 Dr Kothari also noted aspects of the plaintiff’s domestic, social and recreational activities which were a demonstration of the plaintiff’s level of activity at the time when he examined him. He recorded that the plaintiff:
· Lives in his own townhouse
· Has two dogs whose company he enjoys
· Has a fish tank
· Looks after his own household chores
· Goes for walks
· Has made a female friend who lives nearby and is happy in her company
· Has a good relationship with his children and keeps in contact with them
· Keeps in contact with a few of his friends and siblings.
50 Dr Kothari was asked by the plaintiff’s solicitors to provide answers to a series of questions in a medico-legal style. In preface to answering those questions, he obtained a detailed history from the plaintiff, undertook a mental state examination and then provided the following diagnosis:
“In my opinion Mr Clough suffers from Post-traumatic Stress Disorder with mild to residual symptoms in the context of his exposure to a number of very traumatic events working in the police force for 37 years and co-morbid Major Depressive Disorder Chronic with anxiety symptoms which has been precipitated and/or exacerbated by his stressful experiences working at White Horse City Council with what Mr Clough described as unreasonable and excessive work load and lack of support to him.”[17]
[17]Letter dated 3 April 2020 – PCB 68
51 In answer to a question “Whether his injuries are consistent with his employment with Whitehorse City Council?”, Dr Kothari answered as follows:
“Yes. Mr Clough developed Post-Traumatic Stress Disorder (PTSD) in the context of his exposure to traumatic events he witnessed during his 37 years long service with [the] police force. He received treatment for the same from a Psychologist and a Consultant Psychiatrist Dr Okalyi.
On the basis of history given by Mr Clough, reports from his then treating Consultant Psychiatrist Dr Okalyi and his General Practitioner Dr Ibrahim it is evident that Mr Clough’s PTDS significantly improved with treatment and Mr Clough was functioning well and enjoying his work in his role as a Team Leader - Senior Traffic Officer at Whitehorse City Council for over a period of one year and it’s only when he took up his new role as Assistant Manager - Community Law and was asked to do two person’s job that he started to feel stressed. I also note that as per the available history an independent review of his work load concluded that it was unreasonably high and this needed to be addressed. I also understand that a number of requests from Mr Clough to make his work load reasonable did not elicit any response from [the] management team. Instead I understand he was asked in addition to look after school crossing supervisors and cover for a colleague who was on long service leave. Mr Clough felt unsupported and distressed.
It is in this context that Mr Clough started to experience significant depressive and anxiety symptoms which distressed him; impaired his functioning and he needed medical assistance. In this context Mr Clough was unable to return to work at Whitehorse City Council.
It is my considered opinion that his injuries are consistent with his employment experience with Whitehorse Council.”[18]
[18]PCB 70
The medico-legal assessments
52 Dr Weissman, psychiatrist, examined the plaintiff on 5 February 2020. He provided a report dated 7 February 2020.[19] He took a history from the plaintiff which appears to me to tally well with the plaintiff’s evidence of the difficulties he had in his employment with Victoria Police and Whitehorse City Council.
[19]PCB 75
53 Dr Weissman recorded the plaintiff’s current psychological and emotional symptoms, and, relevantly, the following:
· His emotional state, mood state, morale and spirits were “up and down” and he sometimes felt sad
· He feels anxious at times and sweaty
· He often felt depressed
· He sometimes felt frustrated and irritable
· He cannot do things because he has lost drive, motivation and energy
· He no longer volunteers for things
· He has become frustrated and irritable, and feels very frustrated when people do the wrong thing
· Short-term memory is not good
· He has difficulty getting to sleep. He does not sleep until about midnight or 1.00am, waking three times a night
· He has gained 15 to 20 kilograms in weight. He doesn’t like meeting a lot of people and doesn’t go out anymore
· He used to not like hearing police bands.
54 Dr Weissman also noted aspects of the plaintiff’s domestic, social and recreational activities which were a demonstration of the plaintiff’s level of activity at the time when he examined him. He recorded that the plaintiff:
· Has two fish tanks. He breeds fish and does aquascaping
· Has two very good friends with whom he socialises
· Has a female friend who sometimes keeps him company
· Has two dogs
· Showers and dresses himself independently each day
· Has help from his female friend in doing his domestic chores and gardening
· Does his grocery shopping
· Walks for exercise with his dogs
· Drives a car
· Cheers up when his sons come and see him, especially his youngest son
· Sees his grandchildren a little bit.
55 Dr Weissman then expressed the following opinion after noting that the plaintiff’s case was a complex one:
“On the balance of probabilities, it seems to me that Mr Clough was still suffering from a mild chronic Adjustment Disorder with ‘stress’, anxious and depressed mood, and traumatisation features that had not fully remitted/resolved whilst he was still working at Monash City Council and possibly during the early stages of his employment with Whitehorse City Council. He was still seeing a psychiatrist and psychologist [(]as well as his general practitioner) and taking an antidepressant. However he was working full-time at Monash City Council and at Whitehorse City Council, without any psychiatric incapacity for work, and his symptoms at those times were reasonably well contained/controlled.
Therefore he had a pre-existing chronic Adjustment Disorder with Anxious and Depressed Mood and traumatisation features though on careful questioning, at the current time, the contribution from his employment with the police force has now fully resolved/remitted.
At the current time, Mr Clough is suffering from moderate mixed anxiety and depressive symptoms with traumatisation features.
This represents a moderate aggravation of a pre-existing (now resolved) condition.
I do not think that he has a full-blown chronic Major Depressive Disorder.
After careful consideration it is my view that he does not have a full-blown chronic Post Traumatic Stress Disorder (PTSD).”[20]
(emphasis in original)
[20]PCB 88
56 The plaintiff was examined by Dr Gallogly, psychiatrist, on 27 February 2020. He provided a report dated 30 March 2020. He took a history from the plaintiff which appears to me to tally well with the plaintiff’s evidence of the difficulties he had in his employment with Victoria Police and Whitehorse City Council.
57 Dr Gallogly recorded the plaintiff’s current psychiatric symptoms, and, relevantly, the following:
· He cannot be bothered doing things. He looks for excuses not to do things
· He feels pretty low, very flat and numb. He feels sad and empty at times
· He does not feel excitement about things. He has lost interest in life
· His energy levels are very low most days
· His concentration is not great. he is forgetful. he makes notes
· He is easily annoyed. He gets irritated if someone does the wrong thing
· He gets agitated. He gets short of breath. He finds it hard to wind down
· He suffers impatience
· His self-esteem is not great
· He suffers ongoing vivid dreams of being trapped
· He suffers nightmares about fatal accidents and dreaming about people who died
· Reminders of previous police jobs trigger an emotional and physical response.
58 Dr Gallogly also noted aspects of the plaintiff’s domestic, social and recreational activities which were a demonstration of the plaintiff’s level of activity at the time when he examined him. He recorded that the plaintiff:
· Watches television during the day
· Occasionally makes himself breakfast
· Takes his dogs for a quick 10-minute walk around the park
· Occasionally does a bit of baking
· Spends his evenings watching television
· Goes shopping because it makes them feel better
· Cleans his car
· Has visits from his sons
· Has a female friend who comes over and cleans his house
· Sometimes goes for drives with his female friend.
59 Dr Gallogly was asked by the plaintiff’s solicitors to provide answers to a series of questions in a medico-legal style. The first question of relevance is whether the plaintiff’s employment with Whitehorse City Council “caused and/or significantly contributed to a psychiatric injury?” In answer, he firstly considered:
“Based on the information made available including review of the medical reports, history taken from Mr Clough and cross-sectional mental state examination, I consider that Mr Clough developed an Adjustment Disorder with features of Depression and Anxiety.”[21]
[21]PCB 100
60 Dr Gallogly was asked to elaborate if he answered the question in the affirmative. He added:
“The Adjustment Disorder with features of Depression and Anxiety is a new injury.
In 2008 Mr Clough was diagnosed with post-traumatic stress disorder as a result of his time in Victoria Police. He left this role. He entered into psychiatric treatment. He had time off work. His mental state improved, and he recovered occupational capacity to the point that he was able to re-engage in the workforce. He obtained employment with Monash and Whitehorse City Councils despite having a diagnosis of PTSD.
The history provided indicates that Mr Clough found the increasing workload at the Whitehorse City Council increasingly stressful. The symptoms I elicited from Mr Clough indicate his time at Whitehouse City Council was so stressful he developed an Adjustment Disorder that has persisted.
Whilst, Mr Clough’s pre-existing PTSD would have made him more vulnerable to psychosocial stressors, the information available indicates his PTSD had not fully relapsed. With that said some of his symptoms cross over with PTSD (poor sleep, poor concentration, feeling numb, irritability, problems controlling emotions).”[22]
[22]PCB 100
61 Dr Shan examined the plaintiff on 19 June 2019. He provided a report bearing the same date. He took a history from the plaintiff which appears to me to tally well with the plaintiff’s evidence of the difficulties he had in his employment with Victoria Police and Whitehorse City Council, although, there appear to be some errors in what he recorded, for example that the plaintiff worked for Whitehorse City Council for six years. Otherwise, I do not think that the errors are all that material in the end.
62 Dr Shan recorded the plaintiff’s current psychiatric symptoms, and, relevantly, the following:
· He feels uneasy in public places and continues to find himself sitting with his back to a wall
· He manages to have unbroken sleep except if there it has been a trigger, for example through a dream
· He feels generally tired with low energy
· He struggles with drive and motivation
· He believes he has a problem with memory and concentration
· He is forgetful.
63 Dr Shan also noted aspects of the plaintiff’s domestic, social and recreational activities which were a demonstration of the plaintiff’s level of activity at the time when he examined him. He recorded that the plaintiff:
· Has an interest in tropical fish, aquariums and aquascaping
· Interacts with the suppliers of aquarium equipment
· Has taken on breadmaking
· Occasionally uses his mobile home to visit a distant friend
· Lived in his mobile home for nearly two years, using it to drive to Western Australia
· Enjoys being away from people
· Has the companionship of his two dogs
· Has the companionship of a female friend over the last few years.
64 Dr Shan was aware that the plaintiff had been diagnosed with Post-Traumatic Stress Disorder resulting from his employment with Victoria Police. He did not consider that the plaintiff’s employment with Whitehorse City Council resulted in an aggravation of that condition. He added that there was “a reasonable possibility” that regardless of his employment with Whitehorse City Council, that he would be in the same or similar condition as he is now as a result of the natural history of conditions such as Post-Traumatic Stress Disorder. He considered that he was fit for suitable employment of a manual nature and ignoring his age and his receipt of a pension, that he could perform that work on a full-time basis. He did consider, however, that the plaintiff’s regime of treatment as he understood it, of taking an antidepressant and seeing a psychiatrist, was appropriate; however, he considered that once the litigation process was over that he would not require regular psychiatric treatment, but he might need antidepressants.
The Plaintiff’s creditworthiness and reliability
65 The defendant made a sustained attack upon the plaintiff’s creditworthiness and reliability. Its starting point was a submission that there needs to be a careful analysis of the impairment consequences resulting from the plaintiff’s employment with Victoria Police and those impairment consequences resulting from his employment with Whitehorse City Council. The defendant referred me to a number of authorities which stand for the proposition that medical opinions based upon an account given by the plaintiff relevant to his psychiatric symptoms may have little or no probative weight if I conclude that the plaintiff’s account is unreliable.
66 The defendant summarised its submissions in written submissions. I propose to assess the defendant submissions in accordance with the chronological sequence undertaken by the defendant in those written submissions.
67 Firstly, the defendant submitted that the plaintiff was a man of some sophistication, bearing in mind his extensive experience as a police officer which involved prosecuting, preparing briefs and giving evidence. Furthermore, that his acknowledgement of the foregoing demonstrated that he was aware of his obligation to be truthful in giving evidence, and that any conflicts in his evidence could not be explained by any level of ignorance or misunderstanding on his part.
68 Next, the defendant submitted that the plaintiff downplayed the psychiatric condition resulting from his employment with Victoria Police in his second affidavit. It emphasised that the only reference made by the plaintiff to having suffered psychiatric injury resulting from his employment with Victoria Police was a reference to suffering Post-Traumatic Stress Disorder. The defendant submitted that this is to be contrasted with what he noted on his Worker’s Injury Claim Form dated 17 July 2010 in which he claimed Post-Traumatic Stress Disorder and “Severe Depression”. Under cross-examination, the plaintiff acknowledged that the form referred to both Post-Traumatic Stress Disorder and Severe Depression.
69 Next, the defendant submitted that in the plaintiff’s second affidavit, he attributed the chest pains he experienced in April 2013 to a consequence of his employment with Whitehorse City Council. It submitted that this is to be contrasted with what he said in his first affidavit in which he attributed the chest pains to his employment with Victoria Police.
70 Next, the defendant submitted that in the plaintiff’s second affidavit, that Dr Okalyi retired in about 2011, after which he commenced treatment with Dr Kothari. Under cross-examination, the plaintiff was referred to Dr Okalyi’s records which demonstrate that he continued to treat the plaintiff on a regular basis up to his retirement in November 2015. The plaintiff conceded that he was treated by Dr Okalyi until he retired which, of course, means that he was treated by him up to November 2015.
71 The defendant submitted that the plaintiff’s purpose in describing Dr Okalyi’s retirement in 2011 was to give the impression that there was a significant gap in his treatment between 2011 and 2015. It submitted that a reader would be left with the impression that the plaintiff was much improved after he ceased his employment with Victoria Police because he needed no psychiatric treatment. Furthermore, that an inference could be drawn that his return to psychiatric treatment with Dr Kothari in 2015 created a stronger temporal link with the psychiatric condition for which Dr Kothari treated him and his employment with Whitehorse City Council.
72 Next, the defendant submitted that the plaintiff deliberately overstated the occasions when he sought treatment from Dr Kothari in his third affidavit. He said that he was seeing Dr Kothari about every month, and that was said in the context of the date upon which the affidavit was sworn, which was 1 May 2020. Under cross-examination, the plaintiff was referred to Dr Kothari’s reports and clinical notes from which it is clear that the plaintiff saw him on four occasions in 2019 and twice in 2020. The plaintiff believed he had seen Dr Kothari on more occasions than was put to him, but whether he was exaggerating or was under a mistaken belief, the fact is that the matters put to him by the defendant correctly states the position.
73 Next, the defendant submitted that contextually when the plaintiff said that he sees Dr Ebrahim around once a month in his third affidavit, that whilst it is factually correct, it invites the reader to infer that Dr Ebrahim is providing the plaintiff psychiatric treatment, which the defendant submitted is not the case. Under cross-examination, the plaintiff described seeing Dr Ebrahim for treatment for coughs and colds and monthly for injections for asthma; however, the plaintiff said that Dr Ebrahim provides him with the prescription for medication advised by Dr Kothari.
74 Next, the defendant submitted that the plaintiff has a tendency to embellishment in order to strengthen his case. It referred to what the plaintiff said, that he hardly ever dreams of his time in the police force, and no reference to the plaintiff being troubled by dreams in his third affidavit when he sleeps. The embellishment was said to have arisen when the plaintiff was re-examined. In a long answer which he gave to distinguish between the Post-Traumatic Stress Disorder resulting from his employment with Victoria Police and the “stress” resulting from the employment with Whitehorse City Council, the plaintiff referred to having dreams which to him “were more real”, and he referred to kicking off the bedclothes, falling out of bed, and thinking he was being strangled by someone in a big crowd, and trying to bite someone’s hand.
75 Next, in contrast to the plaintiff’s answers about dreams, the defendant referred to a history recorded by Dr Weissman in which the plaintiff told him that he did not experience any specific bad dreams relevant to his employment with Whitehorse City Council. The defendant next referred to the history recorded by Dr Gallogly in which the plaintiff told him that he did not suffer from nightmares. He had ongoing vivid dreams of being trapped. He described previously having nightmares of people dying. He denied having any flashbacks about his time as a police officer. The defendant next referred to the history recorded by Dr Shan in which the plaintiff told him that he used to have very unsettling dreams, but these days, generally managed to sleep with an unbroken sleep except if there is a trigger.
76 Next, the defendant submitted that when the content of the first affidavit is compared with the second and third affidavits, that it is very obvious that the plaintiff attributed a number of impairment consequences to his employment with Victoria Police which he also claimed as impairment consequences of his employment with Whitehorse City Council, for example chest pain and severe anxiety and stress; depression; panic attacks; interference with concentration; short-term memory problems; anxiety attacks, and problems in his relationship with his wife.
77 Next, the defendant submitted that the plaintiff described having struggled to manage his work in his employment with Victoria Police in his first affidavit, and in his third affidavit, he described still having those problems when dealing with members of the public in his employment with Whitehorse City Council.
78 Next, the defendant submitted that the plaintiff said that he left his employment with Monash Council because of problems coping with his work. Under cross-examination, he denied that was the case.
79 Next, the defendant submitted that the plaintiff had conceded that he was claiming at least three impairment consequences resulting from his employment with Whitehorse City Council which he had previously claimed as resulting from his employment with Victoria Police, namely, poor concentration, emotional fragility, and lack of energy and motivation.
80 The defendant submitted that the plaintiff’s attempt in re-examination to create a distinction between psychiatric symptoms claimed against both employers should be rejected.
81 In relation to impairment consequences resulting from his employment with Whitehorse City Council, the plaintiff said that his concentration is worse, requiring him to make notes to avoid forgetting things, and when he becomes anxious, he breaks out in a sweat and becomes very hot.
82 Additionally, the defendant submitted that there was evidence which contradicted what the plaintiff said under re-examination. It pointed to histories recorded by Dr Adlard and Dr Entwisle related to impairment consequences resulting from his employment with the Victoria Police – he referred to his short-term memory being badly affected and the need to make notes in his first affidavit, and that he was constantly anxious, his heart racing and sweating as a result.
83 The defendant summarised its position, submitting that it was simply not possible for the plaintiff to reconcile the content of the first affidavit and representing that all of his impairment consequences, as they were at the time he swore that affidavit, resulted from his employment with Victoria Police without any material reference to what impairment consequences resulted from his employment with Whitehorse City Council. Furthermore, that he is now seeking to minimise the impairment consequences resulting from his employment with Victoria Police for the purpose of this application against Whitehorse City Council.
Analysis
84 I will now turn to the questions raised in this application and deal with them sequentially to disclose my pathway of reasoning relevant to the conclusion I have reached, that the psychiatric condition which the plaintiff suffered in his employment with Whitehorse City Council has both pain and suffering and loss of earning capacity consequences which meet the relevant statutory test.
Creditworthiness and reliability
85 At some point after the plaintiff ceased his employment with Victoria Police, and gained some control over his mental state, he decided to investigate whether the psychiatric condition which resulted from his employment with Victoria Police might meet the statutory test of seriousness.
86 There is little evidence of the background to the retainer of a solicitor and the drafting of the first affidavit; however, what is plain to me from the evidence is that he did retain a solicitor. I infer that the solicitor obtained some medical reports, and instructions from the plaintiff for the purpose of drafting the first affidavit. Exactly what the solicitor had in his possession when the affidavit was drafted is unclear. What is clear is that the affidavit is very detailed in what the plaintiff said were the aspects of his work with Victoria Police which was the cause of his psychiatric condition.
87 The position occupied by the defendant is that someone reading the first affidavit would immediately conclude that all of the psychiatric symptoms complained of by the plaintiff, and his treatment, had a causal connection only with his employment with Victoria Police. Essentially, the defendant submits a comparison between the first affidavit and the second and third affidavits cannot be reconciled. In the ultimate, the defendant submitted that all of this so undermines the plaintiff’s creditworthiness and reliability that it is not possible for me to obtain a clear picture of the impairment consequences resulting from the plaintiff’s employment with Whitehorse City Council.
88 The plaintiff submits that to apply that reasoning is to ignore the potency of the primary evidence, that being, the evidence of the treating and medico-legal medical practitioners who were in the best position to record the plaintiff’s psychiatric symptoms and to diagnose any relevant psychiatric condition resulting from the plaintiff’s employment with Victoria Police. The plaintiff submitted that must be the starting point.
89 I think there is much force in the plaintiff’s submission. The misrepresentation in the plaintiff’s first affidavit is his attribution of his psychiatric symptoms and psychiatric condition to his employment with Victoria Police. Leaving aside the accuracy of his description of the work he was required to perform as a police officer and its impact upon his psychological state, his psychiatric symptoms and the treatment he was provided appears to be accurately stated. So, it is not a matter that the whole of the content of the affidavit is irreconcilable with the primary evidence.
90 I have gone to considerable lengths to summarise all of the individual elements of the defendant’s attack upon the plaintiff’s creditworthiness and reliability in addition to what the defendant says about what I should make of the content of the first affidavit. I am not persuaded that any one of those attacks, or a combination of them collectively, is sufficient to overwhelm a very strong and persuasive body of this medical evidence which I think is a clear demonstration of the plaintiff’s psychiatric condition resulting from his employment with Whitehorse City Council. I will essentially address those individual attacks merged together with the positive findings I will now articulate.
91 The plaintiff’s evidence is unclear to some degree when he has been asked to identify the psychiatric symptoms which he attributes to his employment with Victoria Police and Whitehorse City Council. My impression of the plaintiff’s evidence was that he acknowledged that some of his evidence is unclear, and that he has had difficulty in making it less unclear. Whilst I consider that to be an understandable predicament in which the plaintiff finds himself, that of itself cannot be an answer to the issue of creditworthiness and reliability raised by the defendant; however, I have ultimately resolved the overall question of the plaintiff’s creditworthiness and reliability by assessing the plaintiff’s evidence in the context of the whole of the evidence, and more particularly, by paying regard to the evidence of the psychiatrists who were asked to undertake that task of identifying which symptoms are attributable to which employment. They have done so adequately, and adequately enough for the very particular criticisms made by the defendant to not be as potent as the defendant contended they are.
Psychiatric condition – Victoria Police
92 There are three medical practitioners whose evidence is critically important in understanding the psychiatric condition resulting from the plaintiff’s employment with Victoria Police, and despite labouring under that condition, he made some measure of recovery and return to a capacity to fulfil all the requirements of his subsequent employment with Monash City Council and Whitehorse City Council.
93 The first of those is Dr Ebrahim. Although, his clinical notes are rather cryptic and sparse in content, his letters of referral to various specialists and his reports demonstrate that the plaintiff made a measure of recovery sufficient to undertake the two subsequent forms of employment. If there was any doubt about that, it is completely scotched by the opinions of Dr Entwisle and Dr Adlard, and, to a lesser extent, Dr White, all of whom examined the plaintiff at an early point in time which I consider puts them in a very good position to make an assessment of that measure of recovery.
94 Doctors Ebrahim, Entwisle and Adlard are certainly of the opinion that the plaintiff was functioning well in his employment with Whitehorse City Council. I am fortified in accepting the opinions of Doctors Ebrahim, Entwisle and Adlard in that regard, because all of the subsequent medical opinions of Doctors Okalyi, Kothari, Weissman and Gallogly addressed that issue and concluded that the plaintiff had made that measure of recovery and was functioning well in his employment with Whitehorse City Council.
95 I think the preponderant view is that the plaintiff suffered a Post-Traumatic Stress Disorder and Depression resulting from his employment with Whitehorse City Council. It is evident through the summary of all of the medical evidence I have undertaken that there are variations relevant to diagnosis, but in the end, I think that conclusion is well supported in the evidence.
Psychiatric condition – Whitehorse City Council
96 Following on from the observations I have just made relevant to Victoria Police, the medical evidence which is critically important in understanding the psychiatric condition resulting from the plaintiff’s employment with Whitehorse City Council are Dr Ebrahim, Dr Okalyi and Dr Kothari, who treated the plaintiff from an early enough point in time to understand the psychiatric condition affecting the plaintiff and its causes.
97 Additionally, Dr Weissman and Dr Gallogly were provided with more than adequate evidence upon which to understand the plaintiff’s history of employment and development of the psychiatric condition with both Victoria Police and Whitehorse City Council, and to make an assessment of whether the plaintiff made a complete recovery from the psychiatric condition resulting from his employment with Victoria Police and Whitehorse City Council. Again, about this, but after reviewing the opinions of these psychiatrists, I think the quality and depth of their analyses are both impressive and persuasive, and so much so that I prefer their opinions to that of Dr Shan.
An aggravation
98 The plaintiff submitted that, to use the words of one of the medical practitioners, there was a carryover of some psychiatric symptoms from the psychiatric condition resulting from the plaintiff’s employment with Victoria Police to his employment with Whitehorse City Council which are recognisable in distinction to the psychiatric condition resulting from the plaintiff’s employment with Whitehorse City Council.
99 The plaintiff submitted that the carryover means the pre-existing psychiatric condition has been aggravated, and therefore, I must be satisfied that the aggravation meets the test postulated in Petkovski v Galletti.[23]
[23] [1994] 1 VR 436
100 My purpose in setting out the psychiatric symptoms which partly underwrote the opinions of Dr Weissman and Dr Gallogly was to identify where there was a similarity or difference between the psychiatric symptoms identified by Dr Ebrahim, Dr Entwisle and Dr Adlard to better understand the nature of the aggravation referred to by Dr Weissman. Furthermore, it was a point made extensively by the defendant that there was a need to identify the psychiatric symptoms as part of a process of reasoning.
Loss of earning capacity consequences
101 The plaintiff submitted that apart from Dr Shan, there is unanimity in the reasoning of all of the other psychiatrists who commented on the plaintiff’s capacity to work, that the psychiatric condition resulting from his employment with Whitehorse City Council has incapacitated him and he has no realistic prospect of being able to return to any suitable employment. The plaintiff relied upon Advanced Wire & Cable Pty Ltd v Abdulle[24] when submitting that if I am satisfied that the plaintiff has established satisfaction of the statutory test relevant to loss of earning capacity, then it is unnecessary to additionally be satisfied that he has established satisfaction of the statutory test for pain and suffering.
[24][2009] VSCA 170
102 In the course of analysing the relevant medical evidence on the issue of the plaintiff’s loss of earning capacity, it became clear to me that the only medical practitioner who has examined the plaintiff in recent days who is of the opinion that the plaintiff is capable of returning to suitable employment is Dr Shan. I reject his opinion and I prefer the opinions of Doctors Ebrahim, Kothari, Weissman and Gallogly. I should add that there is confirmatory evidence of the plaintiff’s significantly reduced capacity to return to suitable employment in the earlier opinion of Dr Okalyi which fortifies me in accepting the opinions of Doctors Ebrahim, Kothari, Weissman and Gallogly.
103 Dr Ebrahim has treated the plaintiff for a very long time. I accept that he must be in a position to assess the plaintiff’s overall capacity to function, including his capacity to return to suitable employment. He expressed an opinion as far back as 2013 that the plaintiff had no capacity to work at that time. His opinion did not change, and indeed, I think it is inherent in the letters of referral and his reports, that he considered that the plaintiff was in a parlous state of health consistent with having no capacity to work.
104 Dr Okalyi was of the same opinion in 2013. He considered that the plaintiff had no realistic possibility of ever being able to return to his previous employment with Whitehorse City Council, and he was uncertain whether the plaintiff would ever return to full-time employment.
105 Dr Kothari expressed his opinion less emphatically than others when he considered that it was “unlikely” that he will be able to return to gainful employment for the foreseeable future.
106 Doctors Weissman and Gallogly expressed their opinions with respect to the plaintiff’s capacity for suitable employment far more emphatically. Dr Weissman considered that the plaintiff was totally psychiatrically incapacitated for all work for the foreseeable future. Dr Gallogly considered that realistically the plaintiff was not likely to return to his previous employment or alternative employment for the foreseeable future.
107 Dr Shan disagrees with this body of evidence. I reject his opinion. In summary, it is inconsistent with the opinion of the treating general practitioner, the current treating psychiatrist and two psychiatrists retained on a medico-legal basis who have expressed their opinions based upon what I consider to be a very good understanding of the plaintiff, the history of the development of the psychiatric conditions resulting from his work with both employers, an assessment of the plaintiff’s relevant psychiatric symptoms, together with clinical examinations, and an assessment of the plaintiff’s particular work history. I think it is a compelling body of evidence which cannot be ignored in preference for the opinion of Dr Shan.
Severe
108 The defendant made a great deal about the psychiatric symptoms resulting from the plaintiff’s work with both employers as being of critical importance in my assessment of the plaintiff’s case. It is the reason why I have set out the psychiatric symptoms identified by each relevant psychiatrist. Additionally, the defendant referred to what all of the psychiatrists recorded as the plaintiff’s present capacity to function, in other words, his capacity to function daily and how he spends his time.
109 It is a necessary part of making an assessment of whether the plaintiff has any capacity for suitable employment by having regard to the whole of the evidence, and that must include not only the plaintiff’s present capacity to function, but also his level of treatment. The defendant submitted that his level of treatment is relatively insignificant. I reject that submission. It ignores the treatment provided by Dr Kothari, who has not only expressed an opinion relevant to the gravity of the psychiatric condition currently endured by the plaintiff, but also his capacity to work in suitable employment, and his need for future psychiatric treatment. On the basis of Dr Kothari’s opinion alone, the plaintiff is in a parlous state of health with no real likelihood of that lifting to any measurable degree.
110 Inherent in my reasoning so far is an acceptance that the plaintiff is both a creditworthy and reliable witness on matters of importance in understanding the psychiatric symptoms attributable to his employment with Whitehorse City Council, the diagnosis of an aggravation of the carryover of symptoms attributable to his employment with Victoria Police, and that the aggravation of the pre-existing psychiatric condition, together with the additional psychiatric symptoms, constitute such a degree of aggravation that the impairment consequences of that aggravation meet the statutory test comfortably.
111 I am also satisfied that the evidence points very clearly to the plaintiff essentially being totally incapacitated for his previous employment and for any suitable employment now and for the foreseeable future.
112 I must also add that to the extent that the defendant submitted that the plaintiff is functioning at a reasonable level, then I reject that submission. My purpose in setting out what the treating and medico-legal medical practitioners recorded of the plaintiff’s present level of functioning was to compare it with what the plaintiff says in his affidavits. They appear to me to be entirely consonant. The plaintiff was an active man prior to suffering the psychiatric condition resulting from the employment with Whitehorse City Council. I think that is not only clear from the plaintiff’s affidavits, but also clear from what the treating and medico-legal practitioners recorded. It is a picture of a man who has been reduced down to very little. I am satisfied that all this evidence is a demonstration of the plaintiff’s level of daily functioning.
113 I am satisfied that the psychiatric condition suffered by the plaintiff constitutes a permanent severe mental or permanent severe behavioural disturbance or disorder. I have reached that conclusion by paying due regard to s134AB(38)(c) by making a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, which can be fairly described as more than serious to the extent of being severe.
114 I will grant the plaintiff leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity consequences.
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