Gallo v TAC

[2010] VCC 467

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MILDURA
CIVIL DIVISION
DAMAGES-COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-04379

EMILIO GALLO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:	12 and 13 April 2010
DATE OF JUDGMENT:	3 May 2010
CASE MAY BE CITED AS:	Gallo v TAC
MEDIUM NEUTRAL CITATION:	[2010] VCC 0467

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – serious injury – psychiatric impairment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Keogh SC and	Ryan Legal Services Pty Ltd
Mr B G Anderson
For the Defendant	Mr W R Middleton SC and	Solicitor to the Transport
Ms A C Ryan	Accident Commission
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for nervous shock suffered by him arising out of a transport accident in which his parents were killed which occurred on 24 January 2005 (“the said date”).

2 Section 94(6) of the Act 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 section 93(17)(c) claiming “a severe long term mental or severe long term behavioural disturbance or disorder”.

4          The body function relied upon by the plaintiff in this case is a psychiatric impairment.

5          In 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, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.

6          The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA, at paragraph 29.

7          The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.

8          Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Act, was a word of stronger force than the word “serious” where used in the Act: see also Phillips JA, at 858, and Charles JA, at 860 to 861, to similar effect.

9          The plaintiff relied on two affidavits and gave viva voce evidence. He was cross examined. The plaintiff’s wife, Catina Gallo, swore an affidavit on 15 February 2010 and she was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

10        The plaintiff is presently aged forty, having been born on 11 March 1970. He lives in Robinvale with his wife and two young daughters.

11        The plaintiff, having grown up in Melbourne, moved to Robinvale in 1980 where he attended secondary school until the end of Year 10. He then left school to work on the fruit farm run by his parents (“the farm”).

12        From the time he left school, the plaintiff’s whole life was spent working on the farm, except for three weeks when he did some labouring work. Over time his father bought some extra properties, and the plaintiff helped him manage the farms. The plaintiff’s duties included driving tractors, spraying, watering, pruning, picking and packing.

13        In about 2001-2002, the plaintiff suffered a back injury as a result of lifting boxes at work (“the back injury”). He suffered two herniated discs and developed a bad limp, and went on a disability support pension. He was hospitalised a few times, and needed strong painkilling medication.

14        In cross-examination, the plaintiff agreed he had a little bit of depression as a result of his back injury. He had stopped all physical activity and at times he had back pain which required him to rest in bed for days at a time. At times, he could not walk and he spent much of the time watching television and reading the papers. He agreed he was irritable, restless and frustrated and that he had sexual difficulties because of back pain. Further, his relationship with his wife was not the same as she had to do everything. The plaintiff also had difficulty with his brother, Frank, who would not let him have access to the farm equipment.

15        The plaintiff saw Michael Oates, psychiatric nurse, on one occasion about five years before the accident for counselling about his brother and problems he was having, with his wife having had a baby.

16        Before the accident, the plaintiff’s parents lived next door to him, about two to three hundred metres away. His mother always worked on the farm. The plaintiff was very close to his parents, and they were together nearly every day and shared a lot of meals together.

17        Before his death, the plaintiff’s father did virtually everything on the farm. The plaintiff agreed he lost a valuable asset when his father died and that the farm was not viable without him and it was not making any money.

18        The plaintiff’s father spent three to four months during harvest time in Melbourne, returning home every second weekend. The plaintiff had a lot of contact with his mother, especially during this time, and he saw her every day.

19        The plaintiff’s parents were killed in a head-on collision with a truck on the said date (“the accident”) .

20        The plaintiff was at home on the morning of the accident. His brother Luigi, lived with their parents. Luigi rang and told the plaintiff he needed to go over to his parents’ place because the police were there. When the plaintiff arrived there he spoke to two policewomen, who told him his parents had been involved in an accident. When he asked what hospital his parents were in, the plaintiff was told by the policewomen that his parents were not in hospital, and had been in a tragic accident, and both had passed away.

21        On receipt of this news the plaintiff went numb and could not believe what he was hearing. He then he broke down and cried, embracing his brother. Later that afternoon, when they were sitting in the lounge at their parents’ house, the news came on television, showing his mother’s car and mentioning the accident. The plaintiff saw the devastation, which seemed like a steamroller had gone through the car. He was horrified by what he saw, and the image has stuck in his head.

22        The plaintiff wanted to see his parents’ bodies, but was not allowed to because they were too disfigured. There was a delay of ten days until the funeral. During that time a lot of people came over to the farm.

23        Following the funeral, the plaintiff pulled away from everyone. He was tormented by the thought that he was meant to go to Melbourne with his parents, and kept wondering if the accident could have been avoided if he had been with them.

24        Following the accident, the plaintiff could not keep going on the farm. Because of his back condition, the plaintiff had been reliant on his father to do almost all the physical work. The grapes were left on the vines too long, because the plaintiff could not sell them. The plaintiff’s father also did all the sales work, and the plaintiff was unable to take over these duties, and had to sell his part of the farm.

25        The plaintiff’s back condition has slowly improved over the years and it is now a lot better than it was. He no longer requires medication for pain. Approximately two years ago he came off the pension. Since that time he has had about ten different jobs.

26        The plaintiff worked as a cleaner with Select Harvest, where he worked with his wife. He also worked full time on a pistachio farm for about two or three months as an orchard hand. After that time, he just could not handle working there any longer – “it was his head, it was too much”. He could not handle the job because he was working with another man who complained all the time. The plaintiff asked to be given other work and he was put on a tractor but could not do that work because of his back.

27        The plaintiff worked for ten days packing carrots. He had problems with his hands and had to stop.

28        The plaintiff also worked full time for about five weeks in a storeroom at Retravision but he could not handle the work because he did not like working in the dark and it was not the job for him.

29        The plaintiff drove school buses and taxis for a little while. He drove the school bus in the morning and later in the day to pick up children and drove taxis in the middle of the day. This driving did not affect him mentally and he had to leave these jobs because of his back condition.

30        In February 2009, the plaintiff returned to seasonal, casual forklift work for about three to four months during harvest. He has been unable to obtain similar work this season.

31        In June 2009, the plaintiff tried work pruning vines on a friend’s fruit block, but only lasted half a day because he had too many flashbacks of his past, being in the vines, and he was having anxiety attacks. The whole work and environment was too similar to the work he had done with his father. “It was just too much of a total recall; just too many memories of being in the vines pruning away there.” The plaintiff broke down while he was out there and he explained he “just can’t be a part of the vines anymore”.

32        The plaintiff described a feeling of déjà vu, remembering being out in the paddock with his father and realising his father was never going to come back, that he was never going to see him again. When he felt like that he had to tell his friend he could not work there anymore. After that episode he felt “just really awful, just feeling isolated and lonely”.

33        The plaintiff feels stranded. There are too many reminders for him with any work in the vine industry, and particularly in the local district.

34        The plaintiff presently lives on three acres at Robinvale. Whilst the vines on his property were pulled out in 2006, it is impossible to avoid seeing vines where he lives. He wants to get away from living next to the vines so he does not have a constant reminder about the accident but he cannot for financial and family reasons and he just does not want to make the wrong decision. He has problems making a decision and “trying to find some kind of hope so that he can help himself”.

35        During October 2009, the plaintiff did ten half days of work cincturing vines in Queensland. He travelled there as a passenger in a vehicle driven by a friend. He did not really cope with being a passenger on the twenty hour trip. He went there more to get away from home than for the work. The plaintiff does not trust someone else to drive and he prefers to drive himself. He feels uptight and tense as a passenger. He feels nervous when driving his car when trucks go past. He gets upset if he hears about or sees other accidents.

36        After that work the plaintiff did about four half days similar work at Euston. He has not worked since.

37        The plaintiff’s gross earnings before and after the accident are as follows:

Financial Year	Gross Income
2001-2002	Nil
2002-2003	$8,765
2003-2004	$8,253
2004-2005	$9,308
2005-2006	$12,211
2006-2007	$12,343
2007-2008	$27,763
2008-2009	$27,948

38        In March 2010, the plaintiff commenced an eight week personal training course in Melbourne conducted by the Australian Institute of Fitness (“the course”) at a cost of nearly $5,000. He hoped the course would “kick start” a new career for him. He thought he could strengthen his back and then be able to work as a fitness trainer.

39        To attend the course, the plaintiff obtained accommodation in Melbourne through an advertisement. He was only able to do the course for five days because he was unable to handle all the pressures that were on him while trying to do it. He could not stay focussed and was not getting enough sleep and was having panic attacks and he just felt really lost being there.

40        The plaintiff has a six month period in which he can complete the course but he does not think he has any chance of finishing it given the way he presently feels.

41        In terms of work in the future, the plaintiff says he has been trying but he just does not know what job he could do or where he could work, or what he is going to do with himself. He has not applied for jobs lately but will look for work when he was capable of doing work. The jobs he did in recent times are not there. He cannot hold a job for too long and cannot hold a job at the moment.

42        The plaintiff’s parents sacrificed their lives for him and his family, and the plaintiff has felt a huge loss since their death, and is also haunted by the way they died.

43        The plaintiff has flashbacks, thinking about the accident every day. He still has dreams and has trouble sleeping. In the flashbacks the plaintiff visualises the truck going onto the wrong side of the road forcing his parents’ car into a tree. He sees the car all mangled up, smashed into a tree and he hears a “big” noise that makes him get up, and then he goes to sleep for a while. He feels worthless, like he does not want to be here anymore and he just wants to get out so he can get better. He has that feeling for about an hour or two after the flashbacks. The shakes and feelings of anxiousness and gasping for air happen once a day, every second day, and sometimes twice a day, depending on how he is feeling and what he is doing. Those sensations last for about twenty minutes to half an hour. He has memories of just how his life has turned and how everything is now. He cannot sort things out nor can he make decisions.

44        In cross examination, the plaintiff agreed, of recent times, that flashbacks and dreams had reduced to two or three, or perhaps four times a week and are getting better.

45        The plaintiff has a photo of his parents beside his bed and in the kitchen at his home. His parents’ house is still in view from his house, so the plaintiff has constant reminders of them. He sometimes feels like he just wants to run away and disappear. He has become very depressed and cries a lot.

46        The plaintiff is totally different in the way he now feels compared to how he felt before the accident. His mental condition has affected his relationship with his wife and children. He feels withdrawn and isolated. Every day is a battle to keep going. Since the accident, his daughter has slept with his wife, making the plaintiff feel even more cut off from his wife.

47        The plaintiff felt disconnected because he is “sharing his life alone and not sharing his life with anyone”. He is just so exhausted. “It just drains him out too much” and he just cannot concentrate. He does not want to be there and just wants to be left alone just with his own things.

48        The plaintiff first went to a solicitor on advice from a friend. He saw Martin, Irwin & Richards in about December 2007 to get some crimes compensation. The plaintiff explained he went to the doctor after the lawyers because it was just the way it ended up panning out.

49        Early in 2008, the plaintiff drove his car to a jetty and was going to drive it into the river with the doors shut (“the incident”) but he could not do it because of his children. Before that time, whilst he had thoughts about the accident, he “never really took any action”.

50        Around this time, the plaintiff was working nightshift, having obtained a job in March, and that is when he started feeling really bad about the situation. He just had enough of living and “didn’t want to be here anymore”. He could not handle it anymore, all the things that were happening around him and he just tried to hope that it would “come good” and would be alright, but it just did not happen that way. He was not getting enough sleep. He had flashbacks and was having panic attacks and crying a lot.

51        After the incident the plaintiff attended the Robinvale District Health Service for help. He saw a counsellor, Veronica Chang, who referred him to Michael Oates at the Mildura Base Hospital.

52        Mr Oates started to make regular calls to the plaintiff’s home, and suggested the plaintiff go to hospital, but the plaintiff did not want to. Mr Oates referred the plaintiff to a psychiatrist, Dr Reddy, at the Robinvale District Health Clinic.

53        Under Dr Reddy’s care, the plaintiff started taking Zoloft. The plaintiff was then referred back to his usual general practitioner, Dr Khalil, who managed his medication. The plaintiff initially took Zoloft on a daily basis, increased from fifty milligrams to one hundred milligrams a day, taking two tablets a day, one in the morning and one at night.

54        In October 2008, the plaintiff started psychological counselling with Katrina Needham on a weekly basis. In more recent times he has seen her fortnightly and her treatment has helped him. Because she is moving from the area, the plaintiff has commenced seeing Mr Purchase for counselling.

55        The plaintiff did not have any psychiatric treatment between the said date and April 2008, when he saw Veronica Chang. He was attending Dr Khalil during that time and did not present to him until May 2008 for depression, at which time Dr Khalil put the plaintiff on Zoloft.

56        The plaintiff explained that he did not mention his problems to Dr Khalil because he was feeling fairly numb for most of that time and “sort of, like, pulled away from everyone” and kept to himself. He was trying to put on a brave face to the rest of the family and “sort of just keep it inside him for so long” until he could not handle it anymore and that is when he “just all exploded”. He denied he did not have any treatment before this time because he was not having any problems.

57        Dr Khalil now prescribes Sertra, an anti-depressant, which the plaintiff takes daily. He recently took two hundred milligrams a day, but the dosage was reduced to one hundred milligrams in January because of its side effects.

58        The medication helps to take the edge off, but the plaintiff still feels sad, lonely and depressed. He feels numb and misplaced. He constantly feels like running away. He sometimes gets the shakes and feels anxious and starts gasping for air.

59        The plaintiff tries to avoid drinking, because when he drinks alcohol he tends to binge drink and lose control. He has been binge drinking because he wanted to “lose it” and not be in touch with reality. Just before Christmas 2009 he drank for about three to four months non-stop and made himself sick. He lost his licence in November 2009 for drink driving.

60        In cross-examination, the plaintiff ultimately agreed that he had two drink driving convictions before the accident and also a conviction for driving whilst disqualified in relation to one of these offences.

Lay Evidence

61        The plaintiff’s wife, Catina Gallo, swore an affidavit on 15 February 2010. She and the plaintiff have been together since 1988, and married in 1993. For the last eighteen months she has been employed as a full time manager of the newsagency at Robinvale.

62        Mrs Gallo has seen a huge deterioration in the plaintiff’s condition since the accident. Before that time he was happy, idolised his father, and spent a lot of time with him and relied upon him. The plaintiff was a great husband and father. He had a long term back problem, but aside from that he was happy and outgoing.

63        After the accident the plaintiff seemed lost to her, and pulled away from everybody, including her. He would often say he felt guilty because he should have been with his parents when they died. In her view, he needed professional help, but he kept holding back. His mouth used to shake like he was on the verge of tears.

64        She does not know what to do with the plaintiff, as he cannot move on. He gets treatment from a psychologist and takes medication every day. However, he is still very distant with her and the children. He used to love playing with them, but is now not usually interested.

65        The plaintiff gets very edgy with her when she is driving, and he hates being a passenger. He constantly gets upset and frustrated about things, and at times she has seen him shaking and gasping for breath when he talks about his life.

66        Mrs Gallo was required for cross-examination. She confirmed the contents of her affidavit. She agreed there were problems in her marriage before the accident like every family had. The current problem with the plaintiff is that he is “just not there for them” and “he’s distant” and not “just being himself”. She put that down to the death of his parents.

67        Mrs Gallo confirmed the plaintiff had seen Michael Oates before the car accident because of a problem with smoking marijuana. She agreed he also saw Mr Oates because of problems coping with the birth of their child and also some tension with his brother.

68        After the plaintiff hurt his back, their physical relationship was really not that affected. She confirmed the history the plaintiff had given to Dr Epstein of the problems following the back injury. She denied the plaintiff was miserable and depressed before the accident but then said she thought he was feeling “down in the dumps”. She confirmed the back injury affected him emotionally.

69        Mrs Gallo agreed the plaintiff goes to the doctor when he needs to. She thought he did not go for psychological treatment until April 2008 because he just wanted to deal with it on his own.

70        After the accident the plaintiff’s state of mind was worse and he pulled right away and just kept to himself, more so than before. He was not coping at all.

71        The plaintiff’s back has improved a bit and he is a lot better. His state of mind has not improved much at all since the accident. He is still distant and wants to be left alone and do his own thing. There is not much communication between them since the accident. He just leaves. He does not want to talk about his parents’ death.

72        They are trying in their relationship but it is like there is nothing there. He tries with his work but he does not cope well at all because of depression. He is not motivated at all.

The Plaintiff’s Medical Evidence

73        Since October 2008, the plaintiff has attended Ms Needham at the Magnolia Clinic for counselling in excess of twenty times, including one family session.

74        In her view, the plaintiff continues to suffer from Post-Traumatic Stress Disorder (“P.T.S.D.”) comprised of re-experiencing, hypervigilance, anxiety and avoidance behaviours.

75        Ms Needham noted that the plaintiff had made some progress in managing the impact of the more severe flashbacks through therapy, but continued to revisit the trauma daily and he had dreams most nights.

76        The plaintiff continued to report feelings of anxiety, especially regarding the safety of others, and reported using exercise to manage that. He told her he did not get on well with his wife, and they either argued or did not speak. He disclosed a period of drinking too much over the anniversary period of his parents’ death in 2009.

77        The plaintiff told Ms Needham that seeking work out of the area is useful, because it allowed him to avoid his home, which is a constant maintaining factor for his symptoms, providing an “in your face” reminder of the traumatic loss. She noted the plaintiff would like to relocate. However, his financial situation, due to his parents’ death and his P.T.S.D, made this difficult, as did the need for his wife to leave her family.

78        In Ms Needham’s view, the plaintiff would benefit from further treatment aimed at reducing his need to avoid his home and family as reminders of his trauma. She considered if urgent action was not taken there was a real risk of imminent family breakdown.

79        Dr Khalil reported on only one occasion in 2010. He mentioned that the plaintiff had deferred the course due to unforeseen and unexpected negative emotional stress and pressure which Dr Khalil felt resulted from the accident and the resulting death of the plaintiff’s parents.

80        Dr Khalil noted the plaintiff had struggled to fulfil the study requirements because of flashbacks, severe lack of sleep – most nights only having three to four hours – panic attacks, concentration difficulties, and an inability to fully focus in class for periods of up to eight hours a day, and not being able to retain information taught. He thought the plaintiff had taken the best option to defer full time study to study part time instead.

81        Dr Khalil noted the plaintiff regularly suffers panic attacks and flashbacks. The plaintiff has not had a decent night’s sleep since his parents’ death, and he often sees them moments before sleep finally arrives.

82        Dr Khalil commended the plaintiff on attempting the course, commenting that he did not think the plaintiff thought he would have encountered the difficulties he had.

83        Dr Michael Epstein, psychiatrist, examined the plaintiff for medico-legal purposes on 27 March 2009.

84        At that stage the plaintiff told him he felt depressed, unmotivated, despondent, exhausted, helpless, hopeless, and found every day a battle. He said he was a poor father and did not participate in family activities. He had trouble sleeping, and was constantly fatigued. He had low self esteem, and derived no satisfaction from any of the jobs he had done in the previous three years.

85        On mental state examination, the plaintiff had a subdued manner. He was co- operative and made good eye contact. He appeared well orientated to time, place and person. His affect was restricted, and he appeared depressed and mildly anxious. His perception appeared normal, as did his intellectual functioning and speech. He had some problems with memory and concentration. There was no evidence of thought disorder, delusions or hallucinations.

86        Dr Epstein initially concluded the plaintiff had a P.T.S.D. as a consequence of his parents’ death. Because of his pre-accident back condition, it was Dr Epstein’s impression that the plaintiff was suffering a chronic adjustment disorder with depressed mood, but noted the plaintiff had not had any treatment in relation thereto prior to the accident.

87        In Dr Epstein’s view, as a result of the accident, the plaintiff was grief stricken, and the effect of the accident on him was very significant, as he had been in such close contact with his parents. It also had a profound effect on the family’s financial situation without the father’s assistance. That had led to the breakdown in the relationship with his brother.

88        Dr Epstein noted, with the passage of time, the plaintiff’s grief became a clinically diagnosable depressive disorder that had persisted and become increasingly severe and led him to contemplating suicide in March 2008.

89        In a supplementary report of June 2009 when asked to comment on the stability of the plaintiff’s condition, Dr Epstein noted the plaintiff was still vulnerable and had significant symptoms, and would continue to require psychological treatment for at least the next twelve months.

90        On review on 9 July 2009, the plaintiff advised Dr Epstein that he was having difficulty sleeping, but less so. He had intermittent back pain which fluctuated according to activity. He did not have any nightmares, but still had occasional flashbacks to images he saw of the vehicle and what he imagined happening in the accident. His relationship with his family remained distant, and he was still jumpy and on edge. He was still an anxious driver and avoided being a passenger.

91        The plaintiff told Dr Epstein he felt depressed most days, but his level of depression had improved since seeing his psychologist and with medication. The plaintiff felt there had been little real change in his symptoms, apart from feeling relieved at not working with others. He felt he had gone backwards since comments were made by his father-in-law recently that it was his fault his parents had been killed.

92        Dr Epstein noted the plaintiff was now playing soccer weekly, and rarely socialised with teammates. He was not using alcohol or illicit drugs.

93        On re-examination, the plaintiff still had a subdued manner. He was co- operative and appeared well orientated. His affect was still restricted, and he still appeared depressed and mildly anxious. His perception, intellectual functioning and speech appeared normal. The plaintiff still had some problems with memory and concentration, but there was no evidence of thought disorder, delusions, or hallucination.

94        Dr Epstein concluded the plaintiff continued to have symptoms of a P.T.S.D. as a consequence of his parents’ death. He appeared to still have some symptoms of depression, now primarily coming from the effects of the accident, and he had a chronic adjustment disorder with depressed mood related to the accident.

95        Dr Epstein thought the plaintiff’s condition was stable. He noted the plaintiff was able to get back to work. He considered the plaintiff’s work capacity appeared to be primarily reduced by his mental state, and only partly by his back condition.

96        The plaintiff has been examined for medico-legal purposes by psychiatrist, Dr Strauss, on two occasions: initially on 7 January 2009, and more recently on 3 March 2010.

97        On initial examination, Dr Strauss felt the plaintiff had significant depression and a P.T.S.D. entirely as a result of his parents’ death.

98        On that examination, Dr Strauss found it hard to make a prognosis, and stated that the plaintiff might get better, but on the other hand he might be left with significant psychiatric problems, particularly if he did not return to work. Dr Strauss noted significant problems in the plaintiff’s marriage. He recommended a review, and stated the plaintiff’s psychiatric problems were moderately severe.

99        On re-examination, Dr Strauss noted the plaintiff had a range of P.T.S.D. symptoms, including dreams and flashbacks. The plaintiff was too scared to drive, and he was nervous in cars. He avoided the scene of the accident. He was jumpy, and he did not like thinking about accidents. He told Dr Strauss he was not communicating particularly well with his wife. Sometimes they slept together, but their sexual relationship was poor. At that stage the plaintiff was involved in the course and he complained that his memory and concentration were poor.

100       On mental state examination, Dr Strauss noted the plaintiff was extremely tense and depressed and came close to tears on a few occasions, but was helpful and co-operative. The plaintiff was very emotional, anxious, and depressed. His thinking was negative, but there was no evidence of psychosis, delusions or thought disorder. Dr Strauss noted memory and concentration were reasonable, and the plaintiff was orientated in time, place, and person.

101       Dr Strauss thought, unfortunately, the plaintiff’s situation had not improved appreciably since the earlier visit, and he had the same problems, predominantly as a result of the circumstances of his parents’ death.

102       Dr Strauss noted that obviously there were other factors relevant, including the plaintiff’s back condition and problems with a brother, but overall the accident had brought about the development of psychiatric illness.

103       Dr Strauss thought there was a fifty per cent chance that the plaintiff would be able to persist with employment in the future, noting his work record over the past year had been patchy. Dr Strauss commented that he did not know how realistic work as a personal trainer was. He noted the plaintiff had a back condition and was not confident with people, and he could not really imagine the plaintiff coping in this position, but nevertheless thought he should be encouraged to try to do so.

104       Dr Strauss doubted whether the plaintiff could work in the agricultural industry in the area where he lives. He thought it would be hard for the plaintiff to find work, but that he should be encouraged to look for work and have further rehabilitation or vocational assistance if the course did not work out.

105       Dr Strauss considered the plaintiff had been left with quite significant ongoing psychiatric problems, and this was an indefinite illness in this case. He thought that the plaintiff had at least a partial incapacity for employment, which was permanent. In his view, the plaintiff may be left with a permanent total incapacity, although it was too early to tell.

106       Further, Dr Strauss noted the plaintiff’s quality of life remained significantly reduced because of the effects of the accident, and his prognosis must be guarded.

Vocational Evidence

107       A vocational assessment of the plaintiff was prepared by Margret Leitch, occupational therapist, employed by Evidex on 24 August 2009.

108       Ms Leitch concluded, should the plaintiff obtain employment, he was unlikely to sustain work for more than short periods of time due to the consequences of his psychiatric injury. She thought because of his injury the plaintiff would not continue to consistently present positively to potential employers.

109       In her view, the plaintiff’s prospects of securing employment in the future were reduced, and his prospects of sustained employment were poor, consequent of the effects of his psychiatric injury.

110       But for the death of his parents, she had no reason to believe that the plaintiff would have continued to recover from his lower back injury and return to work on the block.

The Defendant’s Evidence

111       The plaintiff’s TAC claim form dated 10 January 2008 was tendered, as was the TAC printout dated 26 February 2010.

112       An authority dated 19 December 2007 was given by the plaintiff to Martin Irwin & Richards, solicitors, to obtain his medical files for the purposes of a crimes compensation claim.

113       The plaintiff’s 2007/8 and 2008/9 taxation returns were tendered. In the 2007/8 financial year, the plaintiff earned $27,763 gross, made up of earnings from two unnamed sources. The following year he earned $27,948 gross from four unnamed sources.

The Defendant’s Medical Evidence

114       The plaintiff was examined for medico-legal purposes by Professor Richard Ball, psychiatrist, on 23 November 2009.

115       On mental status examination, thought form was normal and the content was somewhat morbid. The plaintiff’s mood showed some depression and anxiety, but it was responsive to variation in content. There was no pathological lability or incongruity. There was some relevant arousal with regard to road travel and other factors like seeing his deceased parents’ house. Cognitively there was no formal abnormality, but the plaintiff presented as having low average intelligence.

116       Professor Ball noted his diagnosis was the same as his psychological colleague, and mental health assessment; that is, that the plaintiff has P.T.S.D. which was also compounded by the relevant family problems, which also to some extent could be regarded as consequential upon the parental deaths and the various effects thereof.

117       Professor Ball noted the parental deaths were sudden, massive, and totally unexpected, and that essentially met the primary determinant for P.T.S.D.

118       Professor Ball thought the situation had, of course, been complicated by the plaintiff’s prior physical problems. He considered that the plaintiff had impaired volition and motivation which compounded his physical difficulties. The plaintiff’s anxiety and depression were major factors in that, and that was all compounded by his general perception of relative failure in his life’s achievement. In Professor Ball’s view, the plaintiff’s injury seriously affected his relationship with his wife and children.

119       Professor Ball noted that it also should be borne in mind that detachment and numbing is well described with regard to certain aspects of P.T.S.D. and these can persist for some while and then be triggered and the numbing collapses at some later period.

120       Having been referred to the late seeking of help and the described numbness beforehand, Professor Ball stated that he agreed with the psychologist’s assessment and the comments in psychiatric documentation about the severity of the plaintiff’s problems and the need for help.

121       Professor Ball noted the exact trigger for overt deterioration was unclear, but that the plaintiff was quite specific about the fact that it happened when he was working on nightshift and feeling extremely lonely, which Professor Ball commented may have been enough.

122       In Professor Ball’s view, the plaintiff was still suffering from persisting physical problems which also affected his motivation and volition. His body image was of a physically impaired man with a relatively poor work history in recent times, and self perception was of a damaged person with limited potential. Professor Ball considered the plaintiff needed to continue with psychological treatment and also pharmacotherapy.

Overview

123       I accept the plaintiff suffered a psychiatric injury as a result of the accident. His response has been diagnosed as a P.T.S.D. by his treaters and also by all medico-legal examiners – a recognisable psychiatric condition as opposed to a normal grief reaction. The fact he did not witness the accident has not detracted from their views as to the presence of a psychiatric illness. In addition, Dr Epstein diagnosed a chronic adjustment disorder with depressed mood.

124       In this case, where there is evidence of a pre-existing psychiatric problem, I must consider what the evidence discloses as to the plaintiff’s condition prior to the accident and determine whether the additional impairment resulting from the accident is severe and long term – Petkovski v Galletti (1994)1VR 436 .

125       The plaintiff experienced some depression as a result of his altered lifestyle following his back injury. He agreed he had problems with memory, concentration, and also in relation to his sexual life prior to the accident. He attended Mr Oates, psychiatric nurse, for counselling on one occasion five years before the accident in relation to problems with his brother and his difficulty coping with the birth of his child.

126       I accept, in these circumstances, the plaintiff may not have been happy, as submitted by counsel for the defendant, but he did not require psychiatric treatment nor medication for any of his problems. In these circumstances, he did not have a psychiatric problem of any significance before the accident.

127 To succeed in this application the plaintiff must establish that the consequences of his psychiatric impairment are “severe”.

128       In terms of employment consequences, it was not argued that the plaintiff cannot work because of his injury or that he has suffered a financial loss as a result thereof, but rather that he has reduced employment opportunities because of his injury.

129       A similar situation was considered by the Court of Appeal in State of Victoria v Glover [1998] VSCA 93 and also in Barlow v Hollis [2000] VSCA 26, per Chernov JA at paragraph 17. It was held in these cases that a situation where the opportunity of doing other work has been denied to a plaintiff by reason of his accident injuries is clearly relevant for the purpose of considering what effect the impairment will have on the plaintiff.

130       Clearly the plaintiff, in very recent years, has earned significantly more than before the accident. Because of the improvement in his back condition to the point where he no longer requires painkilling medication, the plaintiff has made a good effort to return to the workforce.

131       However, I accept that he has experienced difficulty in certain jobs because of his injury. In particular, he is no longer able to work on the vines, as evidenced by the problems he encountered doing the half day work with memories of his parents and the life they had on the vines. He is less able to cope with pressure and those around him complaining. He had the feeling of being shut in when working at Retravision.

132       I do not accept the submission by counsel for the defendant that medico-legal examiners supportive of the plaintiff’s claim have based their opinions on an inaccurate history in relation to the plaintiff’s work activities in the last two years. Whilst the plaintiff has earned in the vicinity of $28,000 in both years, he has not held regular, sustained employment, working in a total of ten jobs.

133       Whilst the plaintiff would like to move from the Sunraysia area because of constant reminders of the accident, because of financial and family reasons he is unable to do so. This was the basis upon which he worked in Queensland, trying to get away from his local area.

134       A consequence which I accept is severe and forms the basis of the psychiatric diagnosis is the plaintiff’s experience of nightmares, flashbacks and panic attacks since the accident. Although they are decreasing in frequency in recent times, they still occur on a regular basis. They are very distressing and obviously interfere with sleep and the plaintiff’s activities on a daily basis.

135       The plaintiff continues to require treatment and medication in relation thereto. Whilst his general psychiatric state improved after the plaintiff obtained treatment in April 2008, it has been stable for some time. I accept that these problems are long term given they have been present now for five years or so since the accident.

136       The delay in obtaining treatment until the incident and what was submitted by counsel for the defendant as a staggering lack of treatment, was explained by Professor Ball and also by the plaintiff himself. Professor Ball saw the plaintiff’s experience working on nightshift as causing cascading problems which were a trigger leading to contemplation of suicide in April 2008.

137       Until that time the plaintiff thought he could cope on his own. His experience of mental health professionals prior to the accident was very limited, having seen Mr Oates on only one occasion five years before the accident for family related problems.

138       Whilst there is no report from them, Mr Oates, Dr Reddy and Ms Chang all saw the plaintiff only on a very limited basis in April 2008. The plaintiff’s treatment since that time has been by managed by Ms Needham who has seen the plaintiff for in excess of twenty private sessions and only one counselling session. The clear focus of her treatment was directed to the plaintiff’s problems, not those of his family. In her view, the plaintiff requires ongoing urgent treatment for a severe condition.

139       In any event, in the absence of any real conflict in the medical evidence which is generally supportive of the severity of the plaintiff’s accident related condition, the absence of reports from these treaters is of less significance – Hesse Blind Roller Co v Hamitoski Pty Ltd (2006) VSCA 121, per Redlich JA, at para 28.

140       Taking into account all the evidence, I am satisfied that the plaintiff has suffered a severe psychiatric injury as a result of the accident and that such injury is long term.

141       Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.

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