Farquhar v Transport Accident Commission

[2021] VCC 1596

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-20-05153

DARRON JOHN WILLIAM FARQUHAR	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Ballarat (e-hearing)
DATE OF HEARING:	23, 24 and 25 August 2021
DATE OF JUDGMENT:	15 October 2021
CASE MAY BE CITED AS:	Farquhar v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1596

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – impairment to the brain – psychiatric impairment – range

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:              Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Dordev v Cowan and Ors [2006] VSCA 254; Dahl v Grice [1981] VR 513

Judgment:                  Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards QC with Mr A Dimsey	Saines Lawyers
For the Defendant	Mr P D Elliott QC with Ms A Bannon	Solicitor to the Transport Accident Commission

HER HONOUR:

Introduction

1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 21 February 2013 (“the accident”).

2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a):

“Serious long-term impairment or loss of body function.”

4The primary body function relied upon by the plaintiff in this application was a closed head injury and concussion, with an acquired brain injury.  He did not proceed with applications relating to his spine and shoulders.  A psychiatric  impairment was also claimed.[1]

[1]Transcript (“T”) 341 based on Dr Walton’s report

5The enquiry under ss(a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. 

6The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[2]

[2]        Richards & Anor v Wylie (2000) 1 VR 79

7In forming a judgment as to whether the consequences of an injury are “serious”, “the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[3]

[3]Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1

8The word “severe”, indicates a more significant injury is required to meet the test in sub-paragraph (c) of ss(17) of the Act, compared to sub paragraph (a).[4]

[4]Mobilio v Balliotis (1988) 3 VR

9The plaintiff relied on four affidavits and gave viva voce evidence.  He was cross-examined.  He also relied on affidavits sworn by his friend, Sarah Jayne Kernighan, on 21 May and 21 July 2021.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

10The application proceeded before Judge Ginnane on 31 May and 1 June 2021 in relation to cognitive impairment application only.The hearing was discontinued by order of Judge Ginnane on 1 June 2021 and a new trial ordered.

11The defendant’s case was that the medical evidence did not support the claimed impairments and that the plaintiff’s level of activity, whether theatrical, photographic or social, was inconsistent with a significant brain injury and that he has a work capacity.[5]

[5]T136

The Plaintiff’s evidence

12The plaintiff is aged sixty, having been born in October 1961.  He is presently in receipt of Jobseeker.  He continues to live in his mother’s house.

13He left school in Year 11.  He holds a number of certificates, including fitness instruction and business studies.  He has worked in different jobs, including estimator, draftsman, personal trainer, clerical assistant, courier driver and branch operator with a car insurance company.[6] 

[6]T220; the plaintiff worked at Myer and AAMI – history to Associate Professor (A/P) Laidlaw

Health pre accident

14The plaintiff agreed he had counselling for psychiatric issues before the accident, as his brother Edward was diagnosed with drug-induced schizophrenia and this caused a stressful situation at home.[7] 

[7]T221

15The plaintiff was referred to psychiatrist, Dr Varma, whom he saw five or six times, and taught him how to relax.  Dr Chaudhary offered him antidepressants, but he did not want to take them because he had seen what had happened to Edward.[8] 

[8]T222

16Edward assaulted the plaintiff a number of times and they had been in conflict because of his illness.[9]  The plaintiff was concussed and had a kidney injury following one of these assaults.  He disagreed, however, that his jaw had been  fractured, but he had nerve damage on the left-hand side from a king hit from another brother which caused a depressed fracture – the maxilla sinus.[10]

[9]T223

[10]T225

17Four years later, the plaintiff had facial surgery because he was embarrassed that his lip “was wobbling”.  He was then working as a certified trainer and was particularly concerned about his appearance.[11]

[11]T226

18He did not remember being told he had a concussion in that assault, he just assumed he did because he was hit in the face.[12]  He had never been told by anyone that, as a result of that assault, he had memory and concentration problems.  It was only since the accident that that had been said to him.[13]

[12]T230 – history to MatchWorks 2019

[13]T231

The accident

19On the said date, the plaintiff was driving his work van in Wendouree when an oncoming car came onto his side of the road and crashed head-on into his van.  He was trapped in the van and thought it would explode. 

20He was thrown forward and hit his head on the windscreen and or side window, cracking the windscreen, smashing the driver’s window and breaking his glasses.  He suffered a concussion.  He also suffered a number of physical injuries.  The van was a write-off. 

21He initially attended Ballarat Base Hospital and was discharged after a few hours.  He then attended a doctor at UFS Medical Clinic the following day.  Later that day, he rang Nurse Online, as he had increasing right shoulder pain and was taken to hospital by ambulance, where he was re-admitted and remained an inpatient for three days.

22He had physiotherapy and painkillers.  He was later referred to spine surgeon, Mr Greg Etherington; neurologist, Dr Thomas Kraemer; orthopaedic surgeon, Mr Paul Plank; and psychologist, Dr Brian English.

23As of October 2019,[14] he continued to suffer pain in his neck, back and both shoulders.  The pain was constant, and worse sometimes than others.  The level of pain was activity related and affected his ability to engage in a range of movements.

[14]        First affidavit

24Before the accident, he enjoyed gardening and maintaining his mother’s property, including the garden, and his friend, Sarah’s, garden.  He  was an avid painter, drawer and photographer, and enjoyed drawing up house plans for family members and loved renovating homes. 

25His accident injuries had made a major impact on his life, with the condition of his shoulders and neck impacting on his work ability and his ability to participate in many other usual activities, such as renovating homes. 

26His participation in many other interests and activities had been impacted by his accident injuries.  His ability to do renovations on his own property and an investment property with his brother, was significantly affected by his shoulder condition.  They had many disagreements about his inability to perform various tasks properly and ended up selling the property at a loss.  The plaintiff was unable to bring his own property to an acceptable standard, and it was condemned by the local council.

27The shoulder injury and reduced cognitive function had impacted on the plaintiff’s  ability to share activities with others.

28As a result, his social life had died since the accident and he had lost contact with friends.  He was a lot less physically active, especially because of his shoulders, and he had lost fitness.  He often felt embarrassed he was no longer able to perform physical tasks as he did once on account of his shoulders.

29His symptoms of pain from his neck, shoulders and back remain.  He continues to have significant problems with his cognitive ability.  Sleep difficulties continue.[15]

[15]April 2021 affidavit

30He continues to see Dr Cruickshanks and Dr Chaudhary about every two months, mainly for pain relief assistance.  He requires Panadol Osteo daily and also takes Panamax when the pain is not adequately under control.  He usually requires Panamax two or three times a week and takes it in the evenings as it contains some codeine, which tends to make him drowsy, and is intended to help him sleep.  His doctors have offered stronger pain medications, but he is reluctant to use them because he does not like the way they made him feel.  He has been prescribed Pantoprazole.

31He has lived with his mother since 2011.  He continues to be virtually unable to perform home maintenance or renovation work, or gardening work, of any significance due to his injuries.  He does carry some smaller pieces of firewood into the house.

Cognitive/mental health issues

32In his 2019 affidavit, the plaintiff deposed that his cognitive brain function had deteriorated significantly since the accident, with his memory and concentration skills nowhere near as sharp and good as pre accident.

33Since the accident, he continued to experience problems with word finding, to express himself and to follow social conversation.  He easily forgot what he was talking about when talking to others.  Those issues caused considerable embarrassment, and his confidence communicating with others had dropped post-accident.  He frequently forgot things and often needed to write notes to remind himself.  At times, he had even forgotten to write a note. 

34He was easily distracted, like leaving cooking on the stove.  He had forgotten things like the words to the Lord’s Prayer, which he knew before the accident.

35He believed he had become depressed from trying to cope with constant pain and from the effects of the accident on his former lifestyle.

36Before the accident, he was confident and outgoing and believed he had a reasonably easygoing nature and led an active social life.  He and Sarah had been in a relationship for about ten years, but had never lived together and he had never regarded her as his life partner.  The changes in his temperament had affected their relationship.  He felt a lot less motivated than pre accident.  He was less able to care for Edward on account of his shoulders and reduced cognitive abilities.

37He had lost confidence and self-esteem since the accident and believed his temperament had changed and he had lost most of his former easygoing nature.  He had become more argumentative and believed he had become more difficult to live with.

38Horrific nightmares and flashbacks of the accident then continued.  He was still hypervigilant about being safe on the road and very anxious when vehicles got too close.

39He could have panic attacks which reminded him of the accident and there were numerous occasions where this had happened when he was a passenger.  He continued to have frequent headaches which could last for hours at a time and were so bad at times he had to lie down.

40His sleep was affected by shoulder pain and also nightmares, the feeling of being in danger or of trying to save others who he believed were so.  He often felt tired and was not refreshed the following day, and lacking energy.  Early on after the accident, people stopped visiting him as they would often find him in bed.

41He continues to have significant problems with his cognitive ability.  In late 2019, he started a Certificate IV course in Small Business but struggled cognitively with the content and was unable to complete the course.   

42Sleep difficulties continue.[16]

[16]April 2021 affidavit

Treatment for cognitive issues

43The plaintiff attended the ABI Clinic at Ballarat Health Services (“the ABI Clinic”) several times in 2013 with ongoing problems including balance, memory and communication issues, as well as fatigue.

44There was no assessment done and he was not treated at the Clinic.  There would be no documentation relating to that course because they did not have a place for him.[17]

[17]T162

45Anne Lacey, the supervisor, telephoned him and he told her about his balance problems.[18]  She said his symptoms were classic, related to concussion, and he felt relieved and optimistic after that.  She told him they were quite inundated and there was not a place for him to have the assessment.  She was basically giving him some counselling.[19]  He only mentioned his physical problems and not his mental problems to her because he had already been reassured time would heal them.[20]

[18]T294

[19]T143

[20]T295

46He was supposed to have a balance assessment, and that was one of the reasons why he went to a neurologist.[21]  He saw Dr Kraemer in April 2013.  He remembered Dr Kraemer telling him that he had Post-Concussion Syndrome (“PCS”).[22]  He also remembered Dr Kraemer telling him that the MRI of his brain showed a bleed, but he told the plaintiff not to be too worried about it, as sometimes MRIs show up old findings.  He told him, “because we’re aware of it, we just have to keep a check on it”, so the plaintiff had to be constantly checked because they believed it could be related.[23]

[21]T286

[22]T288

[23]T289

47Dr Cruickshanks told him he needed to have it checked and the plaintiff had also recently seen the insurer’s neurologist who had advised the plaintiff’s general practitioner to inform him of an aneurysm.[24]

[24]T290

48The plaintiff then agreed that Dr Cruickshanks did not associate any bleed with the accident, and that he was told there was nothing wrong by the neurological people.  He was given reassurance by Dr Cruickshanks.[25] 

[25]T290

49The “neurology people” told him, in April 2013, he had had a normal MRI scan and they did not need to see him anymore – Even though he was told “it’s not associated with the accident”, they “believe[ed] it’s not associated with the accident.  So that put an air of it might be, it may not be, but not to worry about it – so …, naturally, [he was] going to worry about it.”[26]

[26]T291

50He was referred to psychologist, Dr English, whom he agreed he would have seen fourteen times in 2014.[27]  He found that treatment “kind of creepy, upsetting and unhelpful”.[28]  He knew what a psychologist does.  He did not think Dr English was addressing his problem.[29]  When he got home from the appointments, he found himself constantly thinking about them, and they were not helping him.  He had to help himself, and going back to theatre was part of the process.[30]

[27]T293

[28]T304

[29]T305

[30]T306

51In 2019, he attended the ABI Clinic on referral from his general practitioner, having been on a waiting list for some time.  He took part in a memory assist class run by that clinic.

52He agreed, as the ABI Clinic reported, that there had been a sort of improvement in his everyday memory.  This was because he was keeping a diary and making notes, and had been given all kinds of tools to help him remember things.[31]

[31]T300

53His treatment at the ABI Clinic had been brought to a halt with the pandemic.  He was expecting his pain management course at the Clinic to resume and understood it would involve physiotherapy and psychological treatment.  He had some sessions on understanding the long-term impact of concussion which he found helpful in understanding his cognitive problems.

54He swore a fourth affidavit on 17 August 2021, describing further developments in relation to his treatment.

55Prior to the part hearing of his case in May, he had become increasingly concerned, frustrated and distressed at his continued inability to provide direct or straightforward answers from questions, including from his legal advisors. 

56He saw Dr Cruickshanks on 2 June 2021, having made an appointment before the May hearing started.

57His problems answering questions succinctly had been an issue which he had been aware of for a number of years, but had become increasingly frustrating for him since he is aware that this aspect of his condition resulting from the accident frustrates people, including his family and friends.  The events at court reinforced to him he needed to get help regarding his condition.  He had previously sought help, but that had been delayed partly due to COVID.

58He discussed these issues with Dr Cruickshanks, who undertook a mental health care plan and gave him a referral to a psychologist to try and help him.

59The plaintiff initially tried to make an appointment with his previous psychologist, Dr English, but he could not locate him.  He made a few further enquiries and eventually was able to get an appointment with a psychologist, Ms Jones, at St John of God Hospital. 

60The appointments had to be by telephone due to COVID.  He had an initial assessment with her and a subsequent telephone appointment, and he had four further appointments scheduled.

61On the initial telephone attendance on 22 June 2021, the plaintiff advised of reduced frustration and tolerance, with increased anger and frustration response to stimulus.  There was a background of ABI to right front of head following the motor vehicle accident.  He identified some challenges with short-term recall, attention and impulse control.  He reported cognitive concerns as resulting in embarrassment due to recall and reported a tendency to overshare and overexplain information.  He was seeking treatment to build greater functionality.  he was unemployed, partly due to cognitive challenges impacting function.

62He went to the ABI Clinic again after his appointment with Dr Cruickshanks to follow up with them to try and obtain an appointment for further treatment.  He was still waiting to hear back from them.

63He took the initiative to seek this further treatment solely on his volition and arising out of events which culminated in the hearing at Court in May this year.

64Reports of the plaintiff’s participation in subsequent interviews with Anastasia Jones were in similar terms.  He was engaged and attentive and reported low mood.  He spoke with appropriate tone, pace and volume.  He provided long answers to questions and was aware of this process.  Nothing unusual was observed or reported in thought form or content.  No perceptual disturbances or memory difficulties were observed or reported.  He was oriented to TTP.  He displayed adequate insight and adequate judgement about symptoms and what was causing them.  He reported some episodes of impaired judgement that were unlike them.

Work

65In his 2019 affidavit, the plaintiff gave the following brief description of his pre and post-accident work.

66He led a full and active life at the time of the accident, working as a courier driver for P & K Services Pty Ltd (“P & K”), later known as Ballarat Freight Solutions.  He was a casual employee and generally worked fifteen to twenty hours a week, earning $21.66 an hour.  His work involved driving a van between Ballarat and Melbourne, as well as around Ballarat.  He couriered documents as well as freight parcels, which varied in size and weight.

67As a result of his accident injuries, particularly his shoulders and his reduced cognitive function, he had to take time off work here and there and struggled to keep working.  He stopped working in November 2018.  He believed P & K lost its contract at that time.

68He believed the injury to each shoulder and/or deterioration of cognitive function since the accident had permanently reduced the range of work he could do. 

69As of October 2019, he was in receipt of Newstart.  His efforts to obtain work had not been successful.  He believed his capacity to work had been greatly affected by his injuries, especially his neck, head and shoulder injuries individually.

70He had reduced his hours with P & K about a year before the accident in order to care for Edward.  He gave Edward domestic assistance and also helped him in renovating an investment property in Ballarat.[32] The plaintiff was also renovating a property he owned, including plastering, plumbing and other tasks.  Before he reduced his hours, he was actually working thirty-eight to forty, and sometimes fifty hours per week.[33]

[32]The plaintiff received a carers pension from 2012-2016

[33]T144

71He was off work with P & K for six months after the accident.[34]  What caused him to be off work was a dull sensation.  He felt he was “kind of looking out of [myself] but not there”.  There was some sort of heaviness in his head and body, and his “thinking just seemed to be not thinking”.  There was no kind of insight that he could get.  The physical injuries over that period were quite significant.  At the time, he believed that “physical things” were his main issue.[35]

[34]T141

[35]T142

72On modified duties, with reduced hours, he was not allowed to do back-to-back shifts, it was not allowed to be heavy freight, and he was not allowed to lift anything above his shoulder line.  Also, he had to have a towel supporting his spine and take regular breaks.[36]

[36]T146

73Despite being eventually cleared for normal duties by Dr Chaudhary in June 2014,[37] he struggled to perform all aspects of work with P & K, particularly due to his shoulders.[38]  The doctor mentioned in his certificates he had anxiety as well as physical injuries.[39]

[37]T148

[38]First affidavit

[39]T148

74He worked for three further years at P & K, as one of the things he had to prove in getting back to work was his physical ability, and he was focussing on that.  He thought his “dullness” would rectify itself by the time he was back to enjoying physical work.[40]  He managed to work as a courier until 2017 and he was hoping to continue.  He really felt he needed to prove himself and did not want to be a burden on the employer.[41] 

[40]T150

[41]T151

75He agreed that after the accident, his income could have increased because of awards and more country driving.[42]

[42]T308 – Taxation returns – $35,000 in 2017

76He ceased work with P & K in 2017 because one of the things his boss said to him was “your doctor’s going to cause you to lose your job” because he had certificates, as he was having issues with his back and was slow on the run.[43]

[43]T152

77The plaintiff went to Scotland with the Savoy Opera Company in early 2017 to sing Gilbert and Sullivan songs.  They were there for three weeks because they also did some sightseeing.  He was disappointed with the concert as it had been built up a bit and it did not turn out like he had expected.[44]

[44]T155

78When he got back from Scotland, his job with P & K was no longer there, although he had been told before he went that there was no problem taking a holiday.  His boss gave his job away when he got back.[45] The plaintiff kept asking over the following fourteen months what had happened, and they kept giving him the cold shoulder.  At one stage, he approached his boss, accusing him of looking after his mate from Geelong.  It would have been good for the plaintiff to get his job back because his wage would have gone up.  He was pretty keen to get back to work.  He would have been working directly under the organisation, not for a small contractor.[46]  He had thought “finally I’ve got something really good happening”.[47]

[45]T157

[46]T158

[47]T159

79He brought an unfair dismissal claim against P & K.  If his job had been offered to him, he would have taken it “most definitely”.[48]

[48]T162

80He had no issue with the driving.  Basically, the only issue he had was with fatigue, but he persisted because he thought things would get better.[49]

[49]T164

81After he finished up with P & K, he was asked by his former employer if he would be interested in doing some relief work in its pharmaceutical section.  He probably did this work, three hours a day for three months, towards the end of 2018.[50] 

[50]T165

82The plaintiff was assisted by disability employment agency, MatchWorks, to find job opportunities.  In an interview with MatchWorks on 9 April 2019, psychologist, Leanne Livingston, answered a number of questions about the plaintiff.  He did not fill out the form.  Her answer that his short-term and long-term memory were intact was her view, not his.[51]

[51]T204

83In late 2019, the plaintiff commended a Certificate IV in Small Business Development but struggled cognitively with the course content and was not able to complete it.

84In late 2020, MatchWorks found work for him in a country mail run.  He had hoped he would be able to cope with the relatively light duties for five and a half hours, two days a week.  He found some of the work quite manageable, but struggled with speed when sorting the mail, and also struggled with some aspects of the job, including reaching repetitively to take mail and put it in mailboxes, which caused increased neck and shoulder pain.  Standing and sorting mail caused increased back pain.  He was slow at the work, but hoped to improve once he became accustomed to it, but unfortunately after a week of on-the-job training, they let him go.  He suspected that related to the speed at which he was able to work.

85Asplin Industries (“Asplin”) had the Australia Post contract.  The plaintiff jumped at the chance and he was successful in getting the position.  They were to train him for two weeks.  He did not even get through the first week and basically, they sent a message saying they did not want him to do the run.[52]

[52]T205

86He was cross-examined about an undated “To whom it may concern” letter written by Steve Aggett, business development consultant from MatchWorks Ballarat. 

87Mr Aggett wrote that the plaintiff had started work with Asplin as a postal delivery driver on 3 December 2020, doing a rural delivery run alongside Tracey Asplin (“Tracey”).

88Tracey phoned a few days into the employment outlining concerns she had with the plaintiff’s ability to continue employment, telling Steve the plaintiff was not suitable as he was driving on the wrong side of the road, speeding and generally unsafe on the roads.  She advised she would not allow him to return to work and drive for her or the company. 

89Mr Aggett noted that he then proceeded to tell the plaintiff about this.  The plaintiff was clearly devastated and believed that Tracey had misrepresented the truth as to why she believed he was not a suitable employee.

90The plaintiff explained that Tracey did not keep him on and did not give him a fair reason.  She saw he was approaching the mailboxes too quickly while he was in the car.  She did not say anything to him about it at the time.[53]  He had not driven dangerously as she alleged.[54]

[53]T205

[54]T210

91He also had an instance where he had trouble with sorting and he felt awkward with her standing there, with him being a bit slow, and she kind of reassured him when he was struggling.[55]  His problem was sorting the mail.  He knew he lost the job because of the effects of his injury.  She could not say he was losing his job because of this.  She had to make out another reason as Asplin could not dismiss him on the basis of his disability because it was getting funding to engage a person with a disability.[56] 

[55]T208

[56]T209

92He is an excellent driver and liked the job involving driving in the country because there was less traffic, and it was a really good opportunity for him to get back into being normal and it had been taken away from him in “a misleading way”.[57]

[57]T211

93The plaintiff did a couple of weeks part-time paid work at the 2019 election, handing out election pamphlets.[58] He also did one day’s casual work taking photographs at a senior citizens ball.[59]

[58]T168- Derryn Hinch’s Justice Party

[59]        T169

94As at April this year, he continued looking for work using online tools and also approaching businesses to see if they had any suitable work.  He was interested in photography and recently visited some real estate agents to see if they might employ him to take photographs for marketing purposes, but nothing had come of that and he remained in receipt of Newstart.[60] 

[60]T166

95He is still on MatchWorks’ books and has to meet with them regularly as a requirement of Centrelink.[61]  He has been chasing them up, asking them what they were going to do about offering him a job.[62]  He thought, “send the jobs to me and let me decide”.[63]

[61]T233

[62]T322

[63]T323

96He remains concerned that his physical limitations and cognitive limitations, which each result from the accident, are going to make it extremely difficult for him to find and hold employment.[64]

[64]        April 2021 affidavit

97He did not believe being able to be involved in various theatre productions was the same as working in his pre-accident employment, which he had tried to return to with Asplin, with difficulty.  He had not given up looking for work and believed he would be able to return to work, but not in his pre-accident capacity.

98Notwithstanding looking for work and his hope to find a job he would be able to do, he realised he was not able to function at the level he and others expected of him.  That is why he thought he failed at Asplin.  When people realise he cannot perform at the level which he and they expect, they do not persist with him.  He gets angry and very frustrated about his ability to perform at his pre-accident levels.

Photography

99As the plaintiff deposed in 2019, he was an avid amateur photographer pre accident and had maintained this interest since.  He thought he was quite good as a photographer and regularly posted photographs online and had entered a number of online competitions.  He had not won any but had received praise for the quality of his photographs, of which he was proud.[65]  He was listed on ViewBug as a top 30 ranked photographer for 2020.[66]

[65]T167

[66]        T175

100He continues to advertise his photography services on ViewBug.  If he was offered professional photography, such as for a real estate agent, he would be keen to take up the offer; however, the vast majority of his photographs had been on an amateur or volunteer basis.

101Through his involvement with amateur theatre, the producers of a number of productions had been aware of his photography skills and asked him to take photographs and publish them online to promote these productions, such as The Gondoliers in 2017 and The Pirates of Penzance in 2018.  He took the photographs of The Pirates of Penzance in Ballarat, superimposing the pirates on top of the Trades Hall.[67]

[67]T269

102He really enjoys his photography, largely as a hobby, but only, if given the chance, would try and make some money from it through part-time or casual work.  However, despite his attempts, that had largely not occurred. 

103Whilst he would do a photography job, a wedding would be too stressful.  He does not have any “flash” equipment; he just has a little Snapbox camera, which is a point and click job.[68]  If there was a job that would provide him with an income, it would solve a lot of problems and, creatively, it would be tapping into doing that too.[69] 

[68]T173

[69]T174

104If he had been asked to do promotional material in 2020, he would have, but he would not do it now.  He feels a lot more depressed and―

“… since what happened in the court case, that actually did affect me because of how I was being wrongly - and, and I got kind of really agitated with that, the fact that I was being seen in that light.  Something that was enjoyable and pleasing because something that was more or less damning me and I ended up hating - - -.”[70]

[70]T176

Fitness

105The plaintiff enjoyed being physically active and was proud of his high level of fitness.  He enjoyed frequent walks and runs.  He was fit and active before the accident, including running and being a fitness instructor and trainer.  He had kept himself in shape and had formal qualifications as a fitness trainer.  He was no longer able to engage in regular running.[71]  

[71]Surveillance film in February 2021showed him jogging a very short distance

106As shown on his Facebook page, he wanted to arrange some basic fitness courses for people who were either older, had injuries or illnesses, or had never really engaged in any formal exercise, to try and teach them some basic exercises to try and improve their flexibility, mobility and general health.  This was suggested by Sarah, and the classes were to be done from the Ballarat South Senior Citizens.

107The classes were not strenuous, but were slowly paced and more designed at instructing the participants how to do the basic exercises and often from a seated position.  It was not a general exercise or fitness class.

108The classes were to be conducted over seven weeks for an hour a week between February and March 2019.  There were usually between three and five participants only.  He made minimal income, perhaps $15 to $25 a week, which was consistent with his Centrelink benefits.

109He initially said the seven-week course only went for a week and no one was really interested.[72]  He then said he had an average of three participants who attended for six weeks for an hour.[73]  He was also developing a plan to sell the program because he was having a problem taking it.[74]  He developed a program from his own practices of teaching the concepts in gyms and he had worked with physiotherapists before the accident.[75]

[72]T182

[73]T192

[74]T185

[75]T186

110He intended to hold a second program commencing in April 2019, but believed he only did one or two classes before he ceased due to a combination of lack of interest and difficulties he had with his shoulders.  He proposed the next body-awakening program would be done from home, but there was no interest from any clients.[76]

[76]T193

111He did not organise the Mental Health Awareness Push Up Challenge involving doing 3128 push-ups in 21 days, but promoted it to support and raise money for mental health awareness, which was important to him.  He did not take part in or complete the challenge.

112The photograph on Facebook on 5 May 2019 showed him in a static plank pose, which was simply a set up picture to promote the challenge and he was not doing the push ups.  He would not be able to do them because of his shoulder injuries. 

113He had put on considerable weight since the accident because of his inability to exercise; however, he still did some exercises to maintain a basic level of health and fitness, mostly regularly walking.

114The photograph he took of himself, posted in March 2019, was to promote fitness and feeling good; however, his comments in response to compliments on the photograph described how he actually felt.  He really liked the photograph because he wanted to show people he still had it.  He denied he had the level of muscle definition shown because of exercise.  It was a result of static contraction where you just tense your muscles and that keeps your body toned.[77]

[77]T180

115He still wanted to show that he was part of doing something that was constructive, so he was “putting up an illusion”.  He did not “kind of blow a trumpet and tell people a lot about [his] ailments”.  He did not want the world knowing he had injuries and there were things wrong with him.  He wanted to portray that he was functioning, he was with it―

“You have to know me personally to know my passion with this sort of thing.  Like, I have a family that has mental illness and it is a horrible thing to deal with and supporting it and making it aware because there’s a horrible stigma that comes from it and I’ve experienced that myself and it’s such an isolating thing when people misjudge you.  And I don’t want people knowing that I’ve got all these sort of things going on.  I want them to see me and treat me like I am normal, not someone that’s promoting I’ve got issues which I don’t really want people to know.  That’s a private thing.” [78]

[78]T200

116He swore a third affidavit on 21 May 2021, after having been given surveillance material, media reports and copies of social media posts which were said to be inconsistent with his claimed injuries.

117At no time has he sought to hide his interests and activities.  His Facebook page is open to the public and he has disclosed those activities, particularly acting in plays, to medico-legal doctors in this case, as well as his treaters, and particularly his general practitioner, who has encouraged him to do the best he could.

Theatre

118As he deposed in 2019, he has been involved in amateur theatre groups since before the accident and while he did cease active involvement for a period thereafter, he maintained contact and began to become more actively involved in around 2015 or 2016.  He participated in local community and amateur theatre groups, in which Sarah also participated.

119The last show before the accident was in about 2011, and he just came back in about 2017 to get some socialising and atmosphere.[79]

[79]T281

120The state of his shoulders, as well as his reduced cognitive function, had impacted on his ability to undertake projects with the theatre group.  It was essential to get things right when performing.  His reduced memory and concentration since the accident made him unreliable.

121He wore strapping on his shoulders during the productions and also took pain relief.[80]

[80]        Plaintiff’s affidavit sworn 21 May 2021

122He gave further details of his involvement in theatre productions in his May 2021 affidavit.

123He had read articles on the internet of the effectiveness of drama therapy in recovery from brain injury and after discussing his involvement in plays with his general practitioner and receiving his encouragement, he decided to persist with his.

124He was invited by a friend to watch a production by the Savoy Opera Company in 2017 and became involved doing photography and some involvement in the chorus of some of their productions.  He enjoyed the singing, particularly in a group, and found it improved his mood and gave him a much needed social outlet.  He even did some small parts on stage, such as extras.  He did some promotional photography for the Savoy Opera Company’s production of The Gondoliers in 2017.

125He had a similar involvement with another group, Cordelia’s Potted Operas, which was a business conducted by the director of Savoy Opera, and she also asked him to assist her in her productions.  About that time, he talked to her about promoting, assisting and taking photographs for the group, and that led to him posting on LinkedIn, promoting himself, but unfortunately that did not lead to anything.  He was also encouraged to promote himself on LinkedIn by MatchWorks. 

126He had had taken down some of his social media around the time of the last court case.  He deleted it all because “it was just painting a picture that was not correct”.  He was trying to find work and trying to get himself back on track, and that was one of the tools he was using.  But it was being used in a way that was wrong in the earlier case.[81]

[81]T171

127His LinkedIn entry read “Assigned marketing manager, promotions coordinator, photographer, cast member, performer at Cordelia’s Potted Operas”.[82]  “Yes and No”, he posted that in order to attract some sort of work.  He did not know what would come of it, but he just thought if he could make himself look involved and switched on, that would be more attractive because it was promoting himself for work.[83]

[82]T171

[83]T172

128Being involved in the theatrical presentations is enjoyable and he likes it, “absolutely…I’ll keep quiet because I know what I want to say, but I can’t”.[84]

[84]        T177

129The Savoy Opera Company is a well-known company with a long history, specialising in Gilbert and Sullivan.  There were three performances of The Gondoliers in June 2018.[85]  That company was more musically oriented, so they really perfected their songs.  He got a role in the ensemble and performed at Bunyip and Buninyong, but they did not perform, as was arranged, at Dunolly.  It is generally a highlight having a Melbourne company with professionals coming to the country.  There were also performances one day in the city.[86]

[85]T262

[86]T263

130The plaintiff started first as a gondolier and then became a bishop, as the photographs depicted.[87]  The company rehearsed at St Kevin’s.[88]  Rehearsals were in October 2017, before the 2018 performances.[89]

[87]T265

[88]T266

[89]T267

131The plaintiff was also involved in a production of The Pirates of Penzance in 2018 in a promotional role, and also the ensemble.  All the proceeds went to the local Ballarat Rotary Club.  Rehearsals started in July 2018.  There was one month between the last show of The Gondoliers in June and rehearsals for The Pirates of Penzance starting in July.[90]

[90]T269

132He thought there was just one performance of Pirates in Melbourne, although the records showed there were two.[91]  He was interviewed by the Ballarat Courier about the show.[92] 

[91]T271

[92]T271

133His enjoyment and involvement with these productions, and with some encouragement from a friend, he auditioned for a minor part in an amateur production of Beauty and the Beast in 2019, and, to his surprise, was given the role of Maurice, which he thought was mainly due to his age, as he was one of the older actors and the role was for Belle’s father.

134It was not a big part, but he was still worried about forgetting his lines given his memory problems, but after discussing it with his general practitioner, he was given encouragement and able to do the performance, which took place in mid-2019.  He found it difficult to learn the lines and songs and put a lot of effort into it.  These were not problems he had before the accident.  His involvement was good for his confidence and helped him take his mind off his injuries.

135Ballarat Light Opera Company (“BLOC”), who put on Beauty and the Beast, were a good opera company, they were around for years and had always put on a good show.  He was in all the performances.  He was only going to the auditions because he wanted to be part of the ensemble, like he was at The Savoy.  He had never sung live, but with the offer of the role of Maurice – “Because they were offered it, it was like I suppose stars in my eyes.  I’ve never been in anything like this.”  He ended up agreeing to do it and just thought he would cover things as he crossed them.  He did not want to let the opportunity down.[93]

[93]T275

136Photographs of the plaintiff as Maurice were posted on Facebook.[94]  There were ten shows of Beauty and the Beast as part of the Winterfest at Ballarat, performed at Wendouree Centre, at the Performing Arts.[95]

[94]T277

[95]T278

137While he was given two solos – “you [had] to hear the song because they were a characterisation song where … it’s like talking/singing”.[96]  It was a successful show.  He could not deny it.  It was always a polished one.  They had very good audiences.  When it was suggested it was a good run and it ran well, he said “There was a reason why - it was one of the reasons why [he] persisted because it was the biggest opportunity that [he had] ever been given in [his] life”.[97]

[96]T276

[97]        T278

138Later in 2019, he became involved in the production of Wondered, which was a short forty-five-minute one act play, using the characters from Alice in Wonderland.  It was more an exploration of mental health issues and how they affected people.  He applied and was given the role of Mad Hatter.  All proceeds went to mental health support for bushfire victims.

139One of the purposes of the play was to promote mental health awareness and all members of the cast had mental or cognitive disabilities, and the play was promoted to show that people with disabilities could still participate in the community.

140He recorded the lines and played them back to himself over and over every day while learning the part.  He had difficulty, but was able to do it.  There were also prompters behind the stage to assist with lines and prompt sheets were on tables on the stage in front of them. 

141The Daylesford Festival had a theme of Alice in Wonderland and asked the Hatters to participate in their parade in March 2020.[98]  They did a performance of the play in Hepburn.  There were only four or five performances in February in Ballarat and in March 2020.  There were a few other venues arranged, including Maryborough, but COVID stopped that.

[98]T336 – Film of the Wondered cast in the parade and a promotional film of that production were tendered

142Wondered was put on by Dizzy Productions.  It is an organisation that gives people a chance who have autism, and “that sort of stuff” to perform, but it is not a production for people with a disability.  The show had a neuro diverse cast.[99]

[99]T237

143Everyone in the production promoted the show on their Facebook page.[100]  His part was for forty-five minutes to just speak.  The Hatter did sing “Happy Birthday”, just displaying his madness doing it.[101]

[100]T238

[101]T242

144In December 2020, he posted that he was disappointed with COVID, that a big 2020 could not go ahead with performances.  It was something to do with his mental health, and it was a matter of seizing opportunity “because you don’t know what will happen”.  He did not know what he could do until he tried.[102]

[102]T246

145There were also future plans – “we were actually looking at directing that and heading it in our own pathway too because there were some issues there with the directing [of the show]”.[103]  There were future festivals.  Gerard, the director, did not want to do them, and after the “horribleness” they decided that they would do it themselves at venues like the Avoca Winery.[104]

[103]T248

[104]T250

146As far as the plaintiff was concerned, he portrayed the characters very well.  He had seen it played back and, personally, he thought it had turned out better than he thought.  The cast believed the performance was good and they worked hard.  From an audience perspective it was not as they did not have the numbers.[105]

[105]T252

147Even though there were disagreements, Gerard, the director, contacted him, saying that he believed he did the Hatter role really well, from his point of view, and wanted to know if he would be interested in continuing, which he had to decline.[106]  This was before the last hearing because COVID was on and off and he was trying to arrange the festivals further in the year.[107]  When the plaintiff declined the role, Gerard asked him to help another cast member play that role.[108]

[106]T254

[107]T255

[108]T256

148The plaintiff did not have problems with lines while in an ensemble because it was just background, and “they are there from a visual perspective”.  So, he was not able to learn the songs, but when he remembered he would just be miming.  His voice was very rarely heard.[109]

[109]T315

149The lead role in Wondered was extremely difficult and very stressful.  Sarah helped him, recording and filming his performances, and he would listen over and over again.[110]

[110]T316

150The most substantial role he had played pre-accident was the lead in Dimboola, where he played Darkie in about 2009-2010.  In this production, it was “just like a breeze”.  It was really fun and very enjoyable.  He was generally first off script, but now he has lost any ability to comprehend, to learn the lines, to match it up with the movement.[111]  He gets no enjoyment from it now.[112]  The “healing” has not happened that he had hoped for.[113]

[111]T316

[112]T317

[113]T318

151He did not agree that his stage career had progressed from his performance in the ensemble to the part of Maurice, and then the lead in Wondered as his career had been progressing from the time he performed with the Creswick Theatre in 2005.[114]

[114]T279

152He really did not think he would be able to do Wondered.  He just wanted to give it a go.  He was reluctant but he was encouraged by Sarah.  He had a feeling of nervousness, making a fool of himself.  He thought he had to test himself.[115]

[115]T281

153He had never been offered a lead role in a significant show like the BLOC.  The Creswick Theatre where he performed in Dimboola “was fine and all that” but they were a small country area.  They did not get full houses.  He agreed that BLOC was definitely a different scene than country theatres.[116]

[116]T282

154He did, however, have problems with his performance with BLOC , but he was told by his counsel to just to answer the questions.[117]  He disagreed that arguments were just part of a theatrical life.  Wondered was the first time he had experienced them.[118] 

[117]T282

[118]T284

155Apart from being recently asked to help as a props manager for a current local BLOC production, the plaintiff had not been actively involved in any production since Wondered.  He still kept in contact with the theatre community as that was one of his few avenues for social contact.  His social life otherwise had been significantly affected by his accident injuries.  He saw the Wondered role as an opportunity to show himself as much as others that he was still able to have some active role in the community.  He had never given up trying to recover from his injuries.  This involvement was also with the encouragement and support from his general practitioner.[119]

[119]May 2021 affidavit

156His relationship with Sarah was up and down, and she had been very tolerant.  They are still friends at the moment.[120]

[120]T285

157In further cross-examination, after Sarah’s diaries had been obtained, counsel for the defendant read the following diary entry on 14 November 2009 and asked the plaintiff to comment:

“‘… got into a fight with Darron about the play Wondered, or whatever the fuck it’s called I have bad vibes about it and I have a feeling it may bite Darron in the bum RE: his court thingy, but you can’t tell Darron anything’?”

158He responded, “Well she’s right wasn’t she?”.  He was not hiding anything.  “[S]he had worked as a paralegal so she was trying to say that you know they would make bad of it and you did”.[121]

[121]T326

Lay evidence

159Sarah Kernighan swore an affidavit on 21 May 2021.

160She was in a personal relationship with the plaintiff for a number of years and had known him well both before and after the accident.  She also had introduced him to community theatre in 2007.  It was a leisure pursuit they were able to enjoy as a couple.

161Having first taken the plaintiff to a play reading in 2007, she finally got him on stage in 2009 when she directed a production of The Mikado for the Creswick Theatre Company over the next two years.

162In particular, in 2010, he was given the role of Darkie in Dimboola, during which his ability and penchant for comedy really shone.  He was the first person completely off script after only a couple of weeks.  He added one liners and other ad libs, so he was really embracing the character.  These productions were fun for them both.

163Since the accident, apart from noticing his behaviour change on a personal level, in terms of his theatrical pursuits, they were very different and not fun.  He used to be quick, sharp, super intelligent and had a great sense of humour, and that all seemed to be dulled right down and his sense of humour was missing.

164In 2015, she decided to take up theatre again after a break and became involved with the Savoy Opera Company. She could remember once the plaintiff had been talking to her about his feelings of frustration following the accident, he was angry with things and brooding on the fact he was unable to do stuff and had not worked,[122] and how he hated how his life had changed and was a bit jealous she had returned to the theatre. She suggested he come along to the next rehearsal and was asked to join the men’s ensemble.

[122]      The plaintiff worked until 2017

165She helped him learn a small part in The Mikado in about 2017.  Whereas before the accident, he had picked up the lines quickly, and he was not able to learn it completely off pat, but there were enough voices to cover his shortfall.  This was the pattern with subsequent Savoy productions.

166While the role as Maurice in Beauty and the Beast was billed as a principal role, the plaintiff was only on stage for a short time, did not have a lot of lines to learn and only did two solos.  He struggled learning the songs, which was frustrating for the directors, but the plaintiff’s love of theatre kept him going.  He got to a stage where he would not totally embarrass himself on the stage, but that was not his pre 2013 standard and he knew it.

167He was also suffering with physical pain while doing Beauty and the Beast.  He had problems with plantar fasciitis and issues with his shoulder.

168He was then offered the role as the Mad Hatter in Wondered.  Everyone in the play was affected by a mental illness or disorder.  She took a role in the play as she thought she could help him learn his lines.  He was also involved in the promotion of that production.  There were issues with the director, Gerard, who then appointed her codirector.

169In Wondered, the plaintiff was an absolute nightmare to direct.  He would make copious amounts of notes, yet it was not sinking in.  He would completely forget what to do.  It was frustrating for her and the rest of the cast.  Gerard was critical of the plaintiff’s difficulties and her relationship with him. 

170The plaintiff had to strap his shoulder and dose up on Panadol to get through performances.  The pain made him really niggly and the frustration of not being able to pick up his lines quickly saw him lose his temper with himself and others.

171She confirmed the plaintiff’s interest in and talent for photography, being paid once in 2019 for his photographs at the Ballarat South Senior Citizens Ball.

172He was reluctant to join Facebook but it was a means of communication and a way to promote the theatrical productions.  Since the accident, he had put a lot of his fanciful ideas on Facebook without thinking.  A lot of the things are sad because what he was trying to do was recapture the person he was pre accident.  They were “pie in the sky” dreams which never came to fruition and sadly never would.

173They are still friends, while the intimate relationship dwindled away.  She has known him so long to know what he was like before the accident and since, and has seen his behaviour change.  As he is religious, he would not lie or do anything deceitful. 

174The plaintiff used to be a physical trainer and loved keeping fit.  As his fitness level had dropped significantly since the accident, she suggested he offer some gentle exercises for the senior citizens in Ballarat.  His weight ballooned, which was really heartbreaking for him as he was not the person he was, and that finally got to him.  He had always been meticulous about his appearance and fitness and now he looked like a fat hippy. 

175Since she had known him, she knew him to be very capable and skilled with building, working with wood and painting.  He helped her paint her house in 2007 and he loved renovating his own house.  After the accident, he was unable to complete his house.  Due to the nature of his injuries, he felt robbed of his ability to do things like renovate and build, which would have generated a good income.

176It was not until he was sent for tests about his memory and the discovery he had suffered a brain injury that the behaviour and memory changes finally made sense.  She actually felt awful, as she had been pretty insensitive with the sort of comments she had made to him about his behaviour.  The frustration she had felt with his persistence with the learning of lines and songs was replaced with admiration of him trying so hard in spite of the damage that had been done to him through no fault of his own.

177Ms Kernighan swore a supplementary affidavit on 21 July 2020, in which she referred to her personal diaries which included observations of the plaintiff and her feelings towards him, and frustrations with him on a number of occasions.[123]

[123]A number of entries were tendered by the plaintiff

178There were diary entries in 2010 and 2011 predating the accident and entries in 2019 and 2020 after it.

179Having looked at the diaries, she could recall how easily the plaintiff took up acting and singing and how well he got along with other actors and staff.  He was able to learn his parts very quickly and able to ad lib, and was very funny. 

180However, the 2019 and 2020 entries were a stark contrast, with the plaintiff continually having great difficulty learning his lines and singing.  The entries also confirmed steps they took to assist him with his lines, such as cheat sheets. 

181She believed the changes to both his cognitive ability to learn his lines and parts and the very serious deterioration in his ability to get along with other actors and production staff, and his very evident frustration, that these issues were caused by the accident injuries and in particular, the head injuries he received.

The Plaintiff’s medical evidence – treaters

Ballarat Health Services

182The plaintiff presented to Emergency on 21 February 2013 following an accident in which his car had been T-boned on the driver’s side.  He reported no loss of consciousness.  He was complaining of soft tissue injury to the right shoulder, forearm and ankle.  On examination, there was a skin laceration to the right forearm.  Examination was otherwise unremarkable. 

183He was diagnosed with soft tissue injury and a skin laceration to the right forearm, given a prescription for antibiotics and analgesia, and discharged home.

184He was brought to Emergency by ambulance the next day, reporting neck pain increasing over the day, and a “pins and needles” feeling from the base of his skull, down towards the back and tip of his right shoulder.  He reported hitting his head in the accident the previous day.

185He had plain x‑rays of the cervical spine and CT scans of the brain and cervical spine.  There was no evidence of acute injury. 

186The history noted for the 22 February 2013 brain CT scan was “status post RTA with headache and neck pain”.

187It was reported there was an area of low attenuation involving centrum semiovale on the right measuring 5.6 millimetres which does not appear acute and may represent old ischaemic change; if symptomatic this could be evaluated with MRI.  Otherwise, unremarkable CT examination of the brain.

188The plaintiff was reviewed by the orthopaedic registrar, and a collar applied.  An MRI scan of the cervical spine was carried out.  He was discharged on 25 February 2013.

189He was advised not to perform heavy lifting or activities which strain his shoulder or neck excessively for two weeks, and thus would be unable to work.

190The plaintiff was seen in the Orthopaedic Clinic on 8 March 2013, complaining of lumbar pain.  Xrays of the thoracic and lumbar spine showed no evidence of acute injury.  It was noted there were degenerative changes of the cervical spine and no neurological signs.  He was discharged and referred for physiotherapy. 

191He was reviewed by Dr Kraemer in the Neurology Clinic on 12 April 2013. 

192On 15 April 2013, the plaintiff had an MRI scan of his brain.  It was reported there was a small 6-millimetre area of increased signal within the right corona radiata.  It did not demonstrate restricted diffusion or increased susceptibility artefact.  No other area of T2 hyperintensity was identified.  The lesion on its own was nonspecific. 

193On 17 April 2013, the normal MRI scan result was noted (brain and thoracic spine), and the plaintiff was discharged from the Neurology Clinic.

194The plaintiff first attended a meeting with the ABI Service case manager on 8 May 2013.  The manager then made regular telephone contact with him.  His main issues were shoulder and low back pain, balance problems, and anxiety impacting on his ability to drive.

195On 24 May 2013, the plaintiff reported he had seen an orthopaedic surgeon and had a steroid injection into his shoulder, and was awaiting an appointment with a psychiatrist.

196On 1 July 2013, the plaintiff was seeing an occupational therapist and physiotherapist privately, and was to be referred for hydrotherapy and then a gym program.  He had also been referred for sessions with a clinical psychologist.

197By 11 September 2013, he reported having returned to work, three shifts per week, and his balance and fatigue were much improved.  He had continuing neck and shoulder problems.

198When contacted by the ABI Service case manager on 11 December 2013, the plaintiff reported continuing problems with neck and shoulder pain.  He had an appointment to see a psychiatrist.  He was then discharged from the Service.

199He was re‑referred to the Service by his general practitioner, and attended for initial assessment on 27 July 2019.  He described a number of difficulties relating to employment since his accident, and reported he had not been working since 2017.

200He complained of ongoing memory difficulties, fatigue, shoulder pain, poor coordination on the left side and tremor on the right side since the accident.

201He was referred to the Memory Skills Group for a neuropsychology assessment, to the rehabilitation physician for review, and to occupational therapy for support with memory strategies, and fatigue and sleep hygiene.

202He attended two out of three Memory Skills Group sessions, following which he reported improvement, and that the program helped his everyday memory.  He remained on the waiting list for one-on-one occupational therapy sessions.

203On 12 August 2019, the plaintiff attended Emergency complaining of right shoulder pain and right knee pain. 

Dr Sangesh Chaudhary, general practitioner

204In July 2014, Dr Chaudhary wrote to the plaintiff’s solicitors advising of the plaintiff’s post-accident attendances.

205Dr Chaudhary saw the plaintiff on 26 March 2013, and he was then reviewed every two weeks for three months.  The plaintiff performed alternative duties until 10 June 2014, and was cleared to return to normal duties from 11 June 2014.

206The accident diagnosis was a soft tissue injury to the neck, both shoulders, and lower back.  There were referrals to Mr Plank, Dr Kraemer, Dr English, Mr Etherington, and physiotherapy.  Treatment had included anti-inflammatories, physiotherapy, and shoulder injections.

207The plaintiff had had concussion related to the accident but had recovered completely.  There was a left shoulder injury and a right shoulder condition made worse by the accident.

208Dr Chaudhary then thought the plaintiff should be able to continue with his normal duties with ongoing treatment in terms of physiotherapy and psychotherapy for his anxiety.

209Dr Chaudhary reported in September 2016, in similar terms, noting the plaintiff had been continuing normal duties since his clearance.  He had not seen him for any issues regarding his accident from the time of that clearance.

210In a further short report of 31 January 2019, Dr Chaudhary noted the plaintiff had ongoing pains in both shoulders and neck, which were chronic issues which were made worse by the accident.

Dr Cruickshanks

211In May 2019, Dr Cruickshanks referred the plaintiff to Dr Richard Bignell, rehabilitation specialist, for opinion and management, advising the plaintiff felt he had poor coordination in the left side and a tremor on the right, amongst other things.

212Dr Cruickshanks reported in October 2019, first having seen the plaintiff on 5 February 2018 in relation to ongoing neck pain.

213He noted the plaintiff had been an erratic attender, and suspected he did not have a full picture of his problems.  However, the predominant problems appeared to be bilateral shoulder pain, worse on the right, associated neck pain, and probably an ABI with cognitive difficulties.  He had told the plaintiff he would need to refer him back to an orthopaedic surgeon.  He gathered the plaintiff had recently returned to the ABI Clinic, but Dr Chaudhary had had no feedback from them.  A lot more assessment of the plaintiff’s condition needed to occur before final decisions could be made on his outlook.

214He thought the plaintiff had a capacity for modified duties with reduced hours and less physically demanding work.  Work of a sedentary nature may be required.  The plaintiff had a partial incapacity which was likely to continue into the foreseeable future.  The plaintiff was capable of ordinary activities of daily living.  The plaintiff may be restricted in sport, but he was not aware that the plaintiff was especially involved in sport previously.

215On 24 November 2020, Dr Cruickshanks confirmed the plaintiff suffered from various musculoskeletal injuries, in particular, painful shoulders:

“He is fit for the proposed postal delivery job provided that he is allowed the flexibility to occasionally get out of the car in order to stretch and self manage his condition.  However, he is unable to reach above shoulder height.”

216Dr Cruickshanks last reported on 11 May 2021.  He noted he had seen the plaintiff only four times since his last report, and two were on unrelated matters.

217On 31 August 2020, they discussed his injuries in detail – both shoulders, neck, with possible acquired brain injury, and also various other lesser musculoskeletal pain.  On 4 November that year, he reported he was looking for various jobs, including a country postal run, which Dr Cruickshanks did not think ever eventuated. 

218Without further information, Dr Cruickshanks could only assume the plaintiff’s condition is much the same and that he had a partial capacity for work.

219The only other information he had was from Ballarat Health Services Orthopaedic Department on 14 April 2020, reviewing the plaintiff’s various problems, and especially his shoulders.  Continued conservative treatment was recommended. 

220He had not referred the plaintiff for allied health care since a referral to Matthew Clark, physiotherapist in June 2013.  He had also referred him to Dr Bignell, a rehabilitation specialist, in May 2019, but did not have any follow up and perhaps those referrals were never followed up.

221The plaintiff had mentioned having physiotherapy from time to time, but had not sourced it through him.

Dr Kraemer, consultant neurologist

222Dr Chaudhary referred the plaintiff to Dr Kraemer in March 2013 for opinion and management regarding ongoing headaches.  Dr Kraemer reported back on 12 April 2013 after the plaintiff’s referral to the private neurology clinic.

223He diagnosed PCS, Post-Traumatic Stress Disorder (“PTSD”), and degenerative cervical spine disease.  The plaintiff was then taking Panadol.

224In the accident, the plaintiff’s car was hit in the right frontal area.  The plaintiff did not describe any significant loss of consciousness, but felt very dazed for a while afterwards.  He had injuries to his arm during the accident.

225He had a brain CT scan in the Emergency Department which showed hypodensity in the right semiovale of unknown significance, but otherwise no abnormality.

226The plaintiff reported after the accident that for two weeks he had had a more severe headache which had settled down to a more dull headache in the vicinity of 4 out of 10, which was getting worse with any stress and was not relieved by anything.  He had noticed more difficulties with his memory and would often be more forgetful, leaving things at different places, but also with word-finding difficulties.  He, overall, described an increased level of fatigue and exhaustion.  He had also noticed some discoordination on his left side, particularly as he had been a physical active person in the past.

227Dr Kraemer thought there seemed to be an element of PTSD.  When the plaintiff was driving as a passenger and saw a vehicle coming on the left side, he had symptoms of feeling very anxious, but also had to stop the car and rest before he could resume driving as a passenger.  He also described difficulties with left hip pain.

228On examination, the plaintiff had a normal cranial nerve examination.  Upper limb reflexes were symmetrical.

229Dr Kraemer discussed with him that he thought he had a combination of PCS but also a degree of PTSD, particularly as this accident was the third car accident in a short time-frame, all not his own fault.

230He would recommend referring the plaintiff to a psychologist to look at this further, but would also refer him to the ABI Service to get their input.  The plaintiff would have an MRI scan of the brain and the thoracic spine to further have a look at the change on the CT scan but also in the cervical spine in view of his degenerative changes in the cervical spine but also the increased reflexes found in his lower limbs.  He organised for the plaintiff to be reviewed in the ABI Clinic. 

231Dr Kraemer organised a brain MRI scan on 15 April 2013.

Dr Brian English, psychologist

232The plaintiff was referred to Dr English on 18 July 2013 for treatment of accident-related anxiety.  He was seen on fourteen occasions from 7 January 2014 until 29 October 2014.

233Based on examination during that period, Dr English thought the plaintiff’s symptoms were consistent with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.  That did not exclude a diagnosis of PTSD, as that was not formally assessed.

234The plaintiff also met the criteria for a diagnosis of Chronic Pain Syndrome, with chronic pain associated with significant psychosocial dysfunction, in particular mixed anxiety and depression.  A consultation with a pain specialist was required.

235Dr English thought, in terms of ongoing work capacity, the plaintiff would continue to face significant challenges in returning to his pre-accident work schedule without adjustments to his work roster and further treatment for his chronic pain and his associated depressed mood and anxiety.

Medico-legal evidence

Dr Umberto Boffa, occupational physician

236Dr Boffa examined the plaintiff on behalf of CGU in March 2014.

237The plaintiff then described persisting neck, bilateral shoulder, low back and right ankle pain.  He had anxiety in a car a few weeks following the accident.

238The plaintiff was then driving an average of 12 hours a week, carrying bank satchels and nothing too heavy.  He admitted to some mild depression, but said that was related to the slowness of his recovery.

239Dr Boffa diagnosed mild mechanical low back pain without radiculopathy, bilateral tendinitis/bursitis of the shoulders, and aggravated cervical spondylosis.  He believed the plaintiff could make a graduated return to pre-injury duties in four weeks, but not do lifting over 10 kilograms.

Dr Lester Walton, psychiatrist

240Dr Walton examined the plaintiff in October 2019.

241He noted the plaintiff had a psychiatric history involving issues with his brother but was not suffering significant psychiatric issues at the time of the accident.

242The plaintiff told him he was suffering from widespread pain from the accident.

243The plaintiff described his concern of being trapped in his vehicle at the accident.  he had been left with weekly panic attacks, some of which are associated with driving.  He was aware of tendencies towards irritability.  He experienced lowered mood and fleeting suicidal thoughts.  Replay nightmares had now ceased.

244On mental status examination, the plaintiff was pleasant and co-operative but obviously tense.  He remained of normal intelligence with no readily observable cognitive deficits.  That did not detract from his own subjective impression of some intellectual compromise, noting the plaintiff was awaiting detailed neuropsychological testing. 

245Dr Walton thought the plaintiff was involved in a frightening accident and there were discernible post-traumatic psychiatric symptoms, but it was mood disturbance which appeared to predominate.  Thus, he preferred a diagnosis of what had become a Chronic Adjustment Disorder with Mixed Anxiety and Depression, both as a direct response to the accident and partly as a continuing reaction to pain.

246Despite an ostensibly normal CT brain scan, he understood the plaintiff had attracted a diagnosis of accident-related concussion and that he was to have further investigations in relation to possible acquired brain injury.

247In Dr Walton’s opinion, the plaintiff was properly described as having suffered from an accident-induced psychiatric injury.  He had attracted minimal psychiatric treatment, with seven sessions of psychological counselling, but he did experience that as helpful.  Dr Walton did not see any psychotropic medication as necessary.

248He noted the plaintiff was retrenched when his employer lost the delivery contract, and he had not managed to secure further work, which was not especially surprising in the face of his continuing physical and psychiatric problems.

249He thought the plaintiff was suffering from an identifiable partial but significant incapacity for work specifically on psychiatric grounds.  In particular, there were problems with concentration and memory, and the ongoing depression would rob him of motivation, as well as irritability having a potential for marring interpersonal dealings relating to work.

250Essentially, the plaintiff’s neurological status needed to be clarified prior to attempting any sensible return-to-work program, and at best, Dr Walton suspected the plaintiff would manage further part-time work.  Anxiety surrounding driving was now a significant problem in relation to resuming his pre-injury duties.

251Again, the plaintiff’s depression was relevant to constriction of his general activities and social involvement, as was ongoing pain.  Dr Walton noted there was a pattern of quite striking social withdrawal.  The plaintiff did push himself to remain involved in his usual social and recreational activities, but that was a considerable struggle for him.

252There was a re-examination on 24 June 2021.

253Having noted the views of Dr Dowling, Dr Hughes, Dr Stern and Dr Strauss, Dr Walton thought it would appear there is relative unanimity of opinion psychiatrically and neuropsychologically that the plaintiff may have sustained a mild brain injury and also an adverse psychological reaction to the accident.

254Since the October 2019 assessment, the plaintiff continued to suffer widespread pain.  He had expected to come good with the passage of time but that had not happened.

255He was particularly concerned about balance problems affecting his left side.  He had attended a memory course which he found helpful.  He was on a waiting list to attend a mental health clinic.

256Anxiety of panic proportions was less severe and was now of a more anticipatory nature.  He suffered from waves of anger.  He felt sad and like he was a failure.  Persisting erratic sleep was not refreshing

257He described poor concentration as his biggest worry.  He had no sexual interest and fatigue remained a problem.

258He did seem to struggle to sustain attention and focus concentration but, as before, there was no major readily observable cognitive deficit and he would defer to neuropsychologists in this regard.  Earlier optimism had been dashed. 

259Dr Walton noted that the plaintiff attempted to return to work as a postal courier, scheduled to be 5.5 hours twice a week, but had major difficulties in relation to mail sorting, not only being too slow but having difficulty matching addresses with sorting boxes.  Thus, the work trial failed after a week.

Overview

Credit

394As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[126]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[126] (2010) 31 VR 1 at paragraph [12]

395In my view, the plaintiff was an unreliable witness.  I do not accept that he has the problems with memory and concentration to the extent he claims. 

396He is an intelligent man who clearly understood the issues in this case.  While he was overinclusive in his answers, as counsel for the defendant submitted, the plaintiff “showed comprehension of the issues in this case, quite subtle comprehensions of what the defendant’s case was, and him going to answer it.  These answers fly in the face of someone with poor memory and comprehension.”[127] 

[127]      T369

397An example in this regard was that while he enjoyed theatre, he said:  “I’ll keep quiet because I know what I want to say but I cant.”[128]

[128]T177

398While the plaintiff relies on the results of recent neuropsychological testing, most medical examiners, including Dr Walton, have found no readily observable cognitive issues on examination.  As recently as August this year, Ms Jones, psychologist at St John of God Clinic, did not find anything of significance when considering the plaintiff’s largely subjective complaints.[129]

[129]T370

399The plaintiff now largely blames the accident for any problems he has in his life.  Throughout the hearing, he also attempted to play down his involvement in a range of activities, whether at work in the theatre or otherwise.  To suggest that when he remembered the words in the ensemble that he mimed them anyway is nonsensical.  Since 2017, theatre has been a major part of this life – not only involving performing but also social interaction and promotional and photographic work.  He would not have been asked by the director, Gerard, to continue in the theatre if his performance gave him the problems he described.

400While Ms Kernighan corroborated the plaintiff’s various complaints in great detail, she made no mention in her affidavit of him working as a courier until he lost his job on his return from Glasgow in 2017.  Her affidavit was also coloured by her understanding, having been told by the plaintiff, that testing revealed he had suffered a brain injury in the accident.  She then went on to express a view – that she was not qualified to give – that this diagnosis explained the issues the plaintiff had had since the accident. 

The issues

401While the plaintiff relied only on cognitive and psychiatric impairment during the hearing, his claim originally included physical impairments.  He has deposed to ongoing neck, back and shoulder pain, most recently in April this year.  He has also claimed that his physical injuries have impacted on a range of activities he claims are impaired by his cognitive and psychiatric state. 

402In Peak Engineering & Anor v McKenzie,[130] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[130] [2014] VSCA 67 (“Peak”)

403In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[131]

[131]      Peak (ibid) at paragraph [2]

404The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of any non-compensable injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[132]

[132]      Peak (ibid) at paragraph [8]

405The plaintiff continues to see Dr Chaudhary about every two months, mainly for pain relief.  He requires ongoing daily painkilling medication, and medication to help him sleep – being reluctant to take stronger pain medication that has been suggested.

406There has been ongoing treatment for physical conditions, with referral to specialist, Mr Plank, and Mr Etherington in early days.  As recently as November last year, Dr Cruickshanks certified the plaintiff fit for the Asplin job with restrictions placed on use of his shoulders.  In his May 2021 report, that general practitioner noted correspondence from Ballarat Health Services Orthopaedic Department reviewing the plaintiff’s various problems, especially his shoulders. 

407He has deposed that a range of activities are affected by his shoulder and neck pain including work, house renovations, theatre, fitness activities and sleep.

408As of October 2019, the plaintiff deposed that he believed his work capacity had been greatly affected by his injuries, especially his neck, head and shoulder injuries individually.  He remains concerned his physical limitations and cognitive limitations are going to make it extremely difficult for him to find and hold employment.

409When interviewed by MatchWorks in 2019, he attributed some of his problems to increased neck, back and shoulder pain. 

410The plaintiff did not finish renovating his house because of problems with his shoulders.[133]  Ms Kernighan confirmed the plaintiff’s physical problems “robbed him of the ability to renovate and build which would have generated a good income”. 

[133]T353

411The plaintiff also grouped together his shoulders and cognitive function as impacting on his ability to undertake projects with the theatre group and to share activities with others.

412Further, he was a lot less physically active because of his shoulders and had lost fitness, and often felt embarrassed that he was no longer able to perform physical tasks as he did on account of his shoulders.  His shoulder was an issue in continuing with the second fitness program.

413There has been no attempt by the plaintiff or by medical witnesses to undertake any disentanglement of the role played by the plaintiff’s ongoing physical problems and his claimed cognitive impairment in his current presentation.

414In this case, the task required by the Court of Appeal in Peak[134] is a difficult one for the plaintiff. 

[134]Supra

Psychiatric impairment

415While the focus was on the plaintiff’s cognitive impairment, it was also submitted he has a severe psychiatric impairment as a result of the accident, which it was submitted was traumatic, and one in which the plaintiff feared he would die.[135]

[135]T372

416This application was based solely on the view of medico-legal examiner, Dr Walton, who considered the plaintiff was totally and permanently incapacitated as a result of an accident-related psychiatric condition.[136]

[136]      T341

417In my view, the plaintiff cannot establish the consequences of any psychiatric impairment are “severe” as at the date of hearing. 

418While of the view, following his most recent examination in June this year, that the plaintiff its totally incapacitated for work on psychiatric grounds, Dr Walton based his opinion on an incorrect history.

419It was wrong to say that the plaintiff had multiple attempts at work and work/life activities that had consistently failed. 

420Dr Walton did not acknowledge the plaintiff was certified fit for normal duties in June 2014, having returned to modified duties before then.  In his first report, he simply noted the plaintiff had been retrenched while on light duties and got no further work.  In his second report, Dr Walton mentioned the attempt at work at Asplin lasting only a week, because the plaintiff was too slow sorting the mail. 

421The plaintiff was in fact able to work for three years post accident until his return from Scotland in 2017, when his job was given away. 

422Dr Walton also had a limited history of the plaintiff’s theatre and exercise activities and did not consider any physical problems the plaintiff may have had when doing renovations or other activities.  The plaintiff’s lifestyle could not be described as  one of “social withdrawal”.  

423The plaintiff is not totally and permanently incapacitated, let alone on psychological grounds, because he himself has admitted he has a work capacity.[137]

[137]T342

424In my view, any mood or anxiety issues have little bearing on the plaintiff’s work capacity.

425While a diagnosis of PTSD may have been applicable in the early years after the accident, as Dr Stern and Dr Entwisle opined, symptoms of this nature have largely resolved. Dr Walton did not make this diagnosis.  Nightmares have resolved, as has anxiety and panic attacks driving.

426I accept the plaintiff has some persisting, albeit lessening anxiety and mood issues, such that would attract a diagnosis of Adjustment Disorder, but am not satisfied any consequences thereof are “severe”.  They are relevant, however, in terms of a Richards v Wylie[138] analysis.

[138]Supra

427Further, the plaintiff has had limited psychiatric treatment.  He saw psychologist, Dr English, about a dozen times in 2014 for counselling for PTSD-related symptoms and found the sessions of limited use.

428The plaintiff has had “minimal” psychiatric treatment, as Dr Walton described.  There has been no specialist psychiatric referral and no prescription of antidepressant or other similar medication.  Dr Walton did not see any psychotropic medication was necessary. 

429Taking into account all the evidence, I am not satisfied the plaintiff has a severe psychiatric impairment.  Accordingly, this application is dismissed.

Cognitive impairment

430The plaintiff’s case is that he has sustained a significant brain injury on the evidence, probably of the frontal lobe, and while that brain injury for him has not been catastrophic, the consequences for him are serious.[139] 

[139]T372

431Counsel for the plaintiff conceded it might be a mild brain injury, but the effect on the plaintiff’s life has been catastrophic, if not severe[140] – “this is the man’s brain  ...  it is his cognitive ability … .”[141]

[140]T379

[141]T379

432It was submitted there is no enjoyment.[142] The headaches have persisted.  Balance difficulties have continued.  There are issues with increased anger.[143] 

[142]T379

[143]T377

433Dr Dowling’s findings on 12 hours of testing were relied upon – difficulty absorbing instructions, restrictive verbal memory, slowness on demanding nonverbal tasks, slowed information processing of uncomplicated tasks.[144]

[144]T378

434A number of times, at the end of long answers, the plaintiff asked, “Was that the question?”, and it was submitted some of the presentation of the plaintiff was consistent with frontal lobe damage that had been found by Dr Dowling.[145]

[145]T380

435While a serious injury application is not trial by doctor, and I must take into account all the evidence,[146] there is very little medical support for a cognitive injury of any significance arising from this accident.

[146]Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Dahl v Grice [1981] VR 513

Is there a brain injury?

436Counsel for the plaintiff relied on early reports of neurological problems to the ABI Clinic of memory and word-finding difficulties, discoordination on the left side, and increased fatigue.[147]  In 2013, there was a diagnosis of PCS and a degree of PTSD.  It was submitted that there have been consistent complaints of neurological problems that have continued, with the plaintiff going back to the ABI Clinic in 2019.[148]

[147]T372

[148]T374

437While there might be a view early on that the plaintiff had recovered from the PCS, he had not been tested until early 2020.[149]  Although Dr Hughes found a mild brain injury, it was submitted “this is the man’s brain, this is his cognitive ability.  This is the most important thing a human being has, and it is certainly an important thing when it comes to being able to obtain and find work or to be able to live one’s life as one would like to.”[150]

[149]T376

[150]      T376

438It was submitted Dr Dowling’s 12-hour testing was thorough and the results thereof were relied upon.[151]

[151]T376

439When considering whether there has been a brain injury, it is relevant to note there was no report of loss of consciousness when the plaintiff first attended Emergency.  On his return to the Hospital the next day, he did report however having hit his head in the accident. 

440The first CT scan on 22 February 2013 was described by Dr Kraemer as showing a hyperdensity in the right semiovale of unknown significance but otherwise no abnormality.  At this early stage, Dr Kraemer diagnosed a combination of PCS but also a degree of PTSD. 

441When seen at the Neurology Clinic on 12 April 2013, the plaintiff described a number of symptoms he related to the accident, including persistent dull headache, memory and word-finding difficulties, discoordination on the left side, and increased fatigue.

442Dr Kraemer organised the MRI scan of the brain in April 2013 which was reported by Ballarat Health Services as showing no evidence of significant cerebral ischaemia.[152]  The normal MRI scan result was noted on review in the Neurology Clinic on 17 April 2013 and the plaintiff was discharged. 

[152]      Dr Seneviratne thought it did not demonstrate any significant abnormality

443As Dr Seneviratne opined in 2015, there were therefore no significant findings on either investigation of the brain.   

444The plaintiff had limited attendances at the ABI Clinic from May to December 2013 – when he was discharged.  Although attendances were by phone, there were no significant cognitive issues noted during that time when the plaintiff’s complaints were largely related to his physical injuries.  

445By July 2014, Dr Chaudhary thought any concussion related to the accident had recovered completely.  As at August 2015, Dr Seneviratne thought the symptoms related to concussion had almost resolved and cognition and memory were normal. 

446The next treatment for cognitive issues was in 2019, when Dr Chaudhary’s successor, Dr Cruickshanks, referred the plaintiff to the ABI Clinic to see Dr Richard Bignell for opinion and management regarding possible sequelae of a car accident, noting the plaintiff “felt” he had poor coordination on the left side and a tremor on the right, amongst other things.

447At the ABI Service in July 2019, the plaintiff complained of ongoing memory difficulties, fatigue, poor coordination on the left, and a tremor on the right.  However, again, the ABI Clinic reported no significant findings and recorded some improvement with memory after its classes.[153] 

[153]T357

448There is a lack of neurological support for a cognitive injury of any magnitude.[154]

[154]T358

449While Dr Dowling thought the cognitive difficulties found on testing were likely to have a direct organic basis and were consistent with some residual dysfunction in the right frontal region, he described the likely cause thereof as “mild traumatic brain injury” suffered in the accident.  Other areas of cognitive difficulty were secondary effects of a chronic moderate to severe Anxiety Disorder arising from the accident.

450Dr Dowling therefore combined psychiatric with cognitive factors which is not permitted when considering a subparagraph (a) application.[155]  He also thought there were physical limitations on the plaintiff’s work capacity.

[155]T342

451Dr Hughes, neuropsychologist, who examined him on behalf of the TAC, also found any brain injury to be mild and that psychiatric factors were contributing to the plaintiff’s presentation.  On a detailed history, he described the injury as either concussive or a very mild injury for which there may be an organic basis. 

452Dr Hughes opined:

“[I]t is possible he sustained a head injury, and his test performances are consistent with that diagnosis.  However, his presentation does appear to be overlaid by other psychological factors ... .”

453In his very detailed report, Professor of Neurosurgery, A/P Laidlaw, however, concluded the plaintiff did not sustain a significant brain injury, concussion or PCS.  He thought his symptoms are almost entirely consistent with anxiety disorders.

454On both psychiatric examinations, Dr Walton found no readily observable cognitive deficit, and commented that the plaintiff ‘s own subjective impression was of some intellectual compromise.

455Also, psychiatrist, Dr Strauss, was not of the opinion the plaintiff had suffered from a head injury, and noted he had demonstrated no significant abnormalities of memory or concentration at interview, noting there was no significant period of unconsciousness. 

456Much of the support for an accident-related brain injury comes from the plaintiff himself.   From an early stage, although reassured he did not suffer a brain bleed, he has been worried this had occurred.  He told Ms Kernighan testing had revealed a brain injury.  He attributes any problems he has with memory and concentration, and, in particular, his inability to give succinct answers to questions – to a brain injury in the accident, even recently arranging an appointment at St John of God to seek confirmation of his views in this regard.  However, that confirmation was not forthcoming, with the psychologist there finding no abnormalities in thought, memory or perception. 

457Taking into account all the evidence, at its highest, the plaintiff suffered a mild brain injury/post concussive injury in the accident – which had largely resolved by 2015, any consequences of which are mild.  Since that time, the consensus of medical opinion is that the plaintiff’s presentation appears to be overlaid by psychological factors.   

Work

458The main consequence of cognitive impairment relied upon by the plaintiff was employment.

459It was submitted the brain injury had had a serious effect on the plaintiff’s capacity to live his life and hold down a job.  He may not be totally incapacitated.  He may be able to hold down a job if it could be found for him, but he has tried hard, and there is not much for him even through the disability support people.[156]

[156]T380

460While he had gone back to work, it was not a particularly demanding job, but it was one he knew and was familiar with, and he did not have to pick up new information.[157] 

[157]T375

461There was medical support that the plaintiff would be all right in supportive work.  He had gone from stable employment as a courier before the accident, to a man who cannot hold down a job, even a sheltered job in a post office.[158]

[158]      T375

462It was submitted the plaintiff’s description of his problems sorting the mail at Asplin was consistent with a traumatic brain injury.[159]  While he might have been driving too fast at Asplin, that does not mean he did not have problems sorting the mail.[160]

[159]T384

[160]T385

463The plaintiff has ended up on unemployment benefits in the hands of MatchWorks, who could not find work for him, and it was submitted that was due to his cognitive difficulties.[161]

[161]T390a

464The defendant disputed that there was any interference with the plaintiff’s work capacity as a result of any cognitive impairment. 

465There were no certificates from Dr Chaudhary setting out that any absence from work in the early days after the accident was due to cognitive issues.  There were no clinical notes of any cognitive problems at work at that time.   

466After a short period on modified duties, in mid-2014, Dr Chaudhary certified the plaintiff fit for normal duties.[162]  From that time, this general practitioner reported on a number of occasions that the plaintiff’s concussion had recovered.[163]

[162]T344

[163]T345

467In March 2014, before that clearance, Dr Boffa thought the plaintiff had a capacity for modified pre-injury duties and a capacity to gradually return to work, which he did.[164] 

[164]T345

468There is no suggestion in any medical records that the plaintiff had any cognitive difficulties with his job at P & K, although he may have had some problems with his shoulders. 

469The plaintiff did not cease any of his post-accident jobs because of the effects of the accident, either physical or more importantly, cognitive.  In any event, the plaintiff’s income increased after the accident.[165]

[165]T369

470In 2017, nearly four years after the accident, his employer just gave the job to someone else while the plaintiff was in Scotland performing.  Importantly, the plaintiff would have gone back to that job if it had been offered to him, as it suited him very well.  He was able to take up another three months’ similar work with that employer in late 2018 until the work ran out.

471I am not satisfied the plaintiff lost the job with Asplin – organised though a disability provider – because of slowness due to cognitive problems.  He lost it because of his poor driving.[166]  Further, in his recent affidavit, he did not mention cognitive problems working at Asplin, describing neck, back and shoulder pain standing and sorting mail.

[166]T352

472In my view, the plaintiff has a capacity for work as he advertised until recently on LinkedIn.  He was prepared to try the Asplin job.  He has a range of skills, including photography and fitness coaching.  He was developing a fitness plan but could not get any clients.  He is still with MatchWorks, whom he has told he is motivated to work.  He is still looking for work, and it cannot be said now that he does not have a work capacity.[167]

[167]T347

473Further, as recently as his April 2021 affidavit, he described problems obtaining and keeping work due to both cognitive and physical limitations. 

474I am not satisfied there is any significant interference with his work because of any cognitive problems.

Other activities

475Counsel for the plaintiff submitted there were a number of other consequences of the plaintiff’s cognitive impairment.  There was corroborative evidence from Ms Kernighan in this regard which was not challenged.[168]   

Theatre

[168]T374

476In terms of daily activities and hobbies, a lot of time during the hearing was spent on the plaintiff’s theatre activities since 2017.

477Counsel for the plaintiff relied on Ms Kernighan’s lengthy affidavit and her diary entries as corroboration of the plaintiff’s evidence as to his difficulties with performance after the accident compared to his performances and skills before.  In October 2010 and September 2011, she noted he was performing off script.  That was to be compared with post-injury entries detailing his difficulties such as in January 2020.[169] 

[169]T393

478Further, counsel for the plaintiff submitted the plaintiff’s ability to play the role of Darkie in Dimboola before the accident, was indicative of his pre-accident talent compared to what he is able to do now.[170]

[170]T387

479Counsel for the defendant submitted it was not unusual for actors to have problems with their lines.  Further, there was an increase in the magnitude of the roles the plaintiff participated in post accident.[171] 

[171]T367

480The compliments the plaintiff received on his performances, and the request to do more, were not the behaviour of someone who had a brain injury that reached the “very considerable” mark.[172]

[172]      T368

481While the role of Darkie was cited as an example of the plaintiff’s pre-accident capacity, he himself said the role was for a small company – a different scene –  compared to the BLOC, in which he has performed after the accident.   

482The plaintiff’s involvement in theatre post accident has been relatively consistent from 2017 until recent breaks because of the pandemic.  His first role was a chorus/ensemble member.  I do not accept that he did not sing in that role as he claimed.  He then went on to a more substantial role in Pirates of Penzance and a leading role in Beauty and the Beast and also Wondered.

483It is difficult to see, with the problems that he and Sarah described, why Gerard, the director of Wondered, wanted to continue to give the plaintiff more theatrical roles – particularly in an atmosphere as argumentative and difficult as the plaintiff described. 

484The plaintiff has also blamed his shoulder pain for difficulties participating in productions.  His difficulties in this regard were confirmed by Ms Kernighan in her affidavit describing how he had to strap up his shoulder and dose up on Panadol to get through performances.

485Not only has the plaintiff been able to perform in these various productions, he has been actively involved in their promotion – on social media and being the face of the production when interviewed by the Ballarat Courier.

Photography

486The plaintiff has a significant interest in photography and clearly has talent in that field, apparent by the photographs he has posted on Facebook and having a high rating on ViewBug.  While he has only been paid for one job, he has enquired of real estate agents whether he could do the photography for their marketing but has yet been unsuccessful in getting this work.

Fitness

487The fitness industry is another interest of his, having been formally trained in his younger days.  He had the enthusiasm and ability to organise two courses for older citizens in Ballarat which failed because of lack of interest of potential clients rather than any issues with his cognitive condition.  He was able to construct his own program based on his experience.[173]

[173]T368

488He also did the work assisting Derryn Hinch’s Justice Party at the 2019 election.

489The plaintiff has also claimed in earlier affidavits that a lot of his difficulties are related to physical injuries from the accident which are not part of this application and must be ignored.[174]

[174]      Peak (supra)

490Taking into account his level of participation in a range of activities, including work for several years after the accident, I am not satisfied that he has the problems that he describes with memory and concentration or that he lacks social skills or the ability to relate to people that preclude him from getting work or enjoying a range of activities.

491Taking into account all the evidence, I am not satisfied that the plaintiff has a cognitive impairment which has serious consequences as at the date of the hearing that are long-term.

492Accordingly, the application is dismissed.

PLAINTIFF’S TAXATION RETURNS

YEAR	BREAKDOWN	TAXABLE INCOME (ITR’S)
2011	PKB Services Pty Ltd:  $9,884 Allowances:  $65 Government allowances:                   $7,740 Interest/Dividends:  $157 Business income:  $1,382	$18,878
2012	Australian Bureau of Statistics:        $2,927 PKB Services Pty Ltd:  $23,702 Allowances:  $177 Interest:  $513 Other income:  $42 Carer Payment:  $19,392	$26,167
2013	PKB Services Pty Ltd:  $28,355 Carer payment:  $18,111 Interest/Dividends:  $330	$24,595
2014	PKB Services Pty Ltd:  $19,968 Carer payment:  $15,310 Interest/Dividends:  $569	$17,076
2015	Ballarat Freight Solutions Pty Ltd: $15,315 PKB Services Pty Ltd:  $4,878	$23,188
Carer payment:  $11,238 Interest/Dividends:  $757
2016	Ballarat Freight Solutions Pty Ltd: $35,412 Carer payment:  $513 Interest/Dividends:  $509	$33,854
2017	Ballarat Freight Solutions Pty Ltd: $35,151 Newstart Allowance:  $1,300 Interest/Dividends:  $999	$35,046
2018	Ballarat Freight Solutions Pty Ltd:     $1,644 Newstart Allowance:  $4,499 Interest/Dividends:  $472 Capital Gains:  $2,652	$537
2019	Newstart Allowance:  $15,407 Capital disposals of shares:            $44,387 Interest/Dividends:  $977	$18,193
2020	JobSeeker payment:   $6,588 Newstart allowance:   $10,720 Capital disposals of shares:            $45,973 Interest/Dividends:   $1,113	$24,069