Gill v TAC
[2010] VCC 468
•3 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MILDURA
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05533
| IAN GILL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 14 April 2010 |
| DATE OF JUDGMENT: | 3 May 2010 |
| CASE MAY BE CITED AS: | Gill v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0468 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – psychiatric impairment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC and | Ryan Legal Services Pty Ltd |
| Mr B Anderson | ||
| For the Defendant | Mr W R Middleton SC and | Solicitor to Transport Accident |
| Ms A Ryan | 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 which occurred on 8 November 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. 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 five having been born on 25 May 1964. He attended primary school periodically as his mother was employed as a road cook for road gangs.
11 The plaintiff was taken from his mother when the family lived on the river in North Queensland. He lived in a children’s home for about a year when he was in Grade 5. The plaintiff returned to his mother the following year and he lived in Townsville until the age of fifteen.
12 The plaintiff left school during the first term of Year 9 and worked initially as a milk boy and then had various labouring jobs. He came to the Mildura region in 1983 to pick fruit. He then worked in various jobs, including machine operator, truck driver, delivery driver, storeman and general hand.
13 In July 2002, the plaintiff commenced work as a general hand for IPC, which later became SDS Beverages (“the company”). The company packed and distributed wine and citrus fruits in Irymple.
14 The plaintiff’s duties with the company included forklift driving, stacking boxes, labelling bottles, stock takes and office work. The plaintiff was employed as a full time casual, earning about $33,000 per year.
15 On the morning of the said date, the plaintiff was decapping bottles in the warehouse when he heard a loud bang from the cool room area. He then saw a forklift slowly tilt over and he heard it crash on the floor (“the accident”).
16 The plaintiff guessed the forklift was being driven by a fellow worker, Marcus Martin (“Marcus”). He worked in the same shed as the plaintiff. They were good mates and got on well.
17 The plaintiff ran over to help and saw it was in fact Marcus who was lying on his right side with the forklift at the top of his head and his hand pinned. There was a graze mark on Marcus’ head and he was not moving.
18 Two fellow workers tried to lift the forklift by hand but it was too heavy. The plaintiff went and retrieved his forklift and guided it into a position to put the fork through the roof of the roll cage of Marcus’ vehicle.
19 The plaintiff lifted the forklift about two feet off the ground. When he got off his forklift, the plaintiff then realised that the roll cage had landed across the top of Marcus’ head.
20 A fellow worker and the plaintiff then grabbed Marcus around the waist. As they dragged him out from under the forklift, the plaintiff saw little chunks of Marcus’ brain on the concrete, which the plaintiff was told later, had probably come out of Marcus’ ear.
21 The fellow worker checked for Marcus’ pulse. The plaintiff, leaning over Marcus’ left shoulder, checked for breathing and had his hand on Marcus’ chest when Marcus then breathed in heavily. The plaintiff thought at this time that Marcus was dead. The plaintiff ran to the office to fetch the first aid officer to report the accident and the plaintiff then collapsed in a heap on the ground, hyperventilating.
22 The plaintiff stayed outside the shed and after about twenty minutes the manager told him that Marcus had died. The plaintiff tried to go back inside but when he saw Marcus, he could not handle it so he went straight back outside. The police attended and an ambulance came and took Marcus away. The plaintiff just wanted to get out. The factory shut down for the day.
23 The plaintiff went home to his girlfriend and drank a dozen cans of beer. He returned to work the next day because he did not want to be home alone.
24 The plaintiff had counselling from Peter Hunt organised by the company in November 2005. Mr Hunt told him to “think happy thoughts” but he just could not. The plaintiff thought at that time he might need to have some further treatment but he did not want to have any time off work because he was a casual. He thought that he could get through it himself.
25 On his return to work the plaintiff was not himself, and his work got to him. In the first few months often he had to stop work and go outside the shed because he was thinking about the accident. Over time, he found himself becoming more emotional, and it was harder to socialise. He could not get the images of Marcus’ brains and his last breath out of his mind.
26 The plaintiff kept working for the company, in his normal job, but it was a struggle. He avoided the accident scene as much as he could but he had to go through it to do his work. He worked close to that area and that made him nervous Usually he was flat out at work but in that area “it all just slowed down” and he was more careful and he just had to think more.
27 The plaintiff started to drink more alcohol to block out these memories so he could sleep without having nightmares or flashbacks. He would finish work early on Thursday to go to the pub. At times he would leave work at lunchtime and go home and have a drink and smoke cannabis before returning to work just so he could finish the day off.
28 Prior to the accident, the plaintiff’s drinking had been much more moderate, and he had a good work record.
29 In cross examination the plaintiff said that on the weekends before the accident he used to go clubbing and drinking with his mates. He agreed he would go binge drinking, drinking about fifteen pots of beer. He agreed he started drinking heavily when his second relationship broke down but then his drinking slowed down. He also may have had one or two cans at night before the accident.
30 Pre-accident the plaintiff would also have half a dozen cones and half a gram of cannabis after work to relax. He has smoked cannabis since the age of twenty one, initially three to four grams a week, until he started playing football at the age of twenty seven, when he stopped for five years and then resumed using one or two grams.
31 Prior to the accident the most cannabis the plaintiff would have smoked was seven grams a week. Since then the most he smoked was about fourteen/fifteen grams, maybe more. Since moving to Cardross ten weeks ago, the plaintiff has tried to slow down as it is not acceptable smoking where he lives. He now smokes about four or six grams a week.
32 The plaintiff agreed that for many years prior to the accident he was maybe abusing cannabis but not alcohol.
33 Now living at Cardross it is harder to get anywhere and the plaintiff thought he would just stay out there and deal with it. In terms of his substance abuse, he was still smoking a little bit more than he did before the accident. He currently drinks anything from half a dozen to a dozen VB cans at night, depending on whether he has the money. He has a gram or two of cannabis a day if can get it, every day of the week.
34 The plaintiff has been referred to alcohol counselling at the Sunraysia Community Health Centre, but he has not attended because he did not think he needed it.
35 It is easier when he is drinking because “it sort of nullifies his brain and it just does not turn so fast”. It just stops him thinking and he can just sit down and relax. If he does not drink or drinks less, he does not get to sleep as quickly.
36 In late 2007, the plaintiff was offered a move to work at Merbein or take a redundancy. In cross examination, the plaintiff disagreed he did not take the redundancy because he did not want to go back to Merbein. The reason for not taking up the new job was that the work was seasonal casual and the union representative had told him it was not the same job. He then added, he wanted to get away from the forklift and the warehousing and figured the Merbein job was more of the same.
37 Warehouse work was just too confining and he just wanted to be out where there “wasn’t too many” and he then would not have to deal with working within the actual warehouse because that made him nervous and shaky.
38 The plaintiff also thought he could get a job as a truck driver, work he liked. He obtained a seasonal job driving to pick up fruit in February 2008 when the season started. He lost that job after a couple of months because of a drink driving conviction. He was drinking too much alcohol and smoking marijuana and not coping with life. He has completed a drink driving course but his continuing drinking has been holding him back from applying for his licence.
39 The plaintiff does not like doctors or going to doctors, but in June 2008 his partner at the time Yvonne made him go and see a general practitioner, Dr Jago, because he was drinking too much and tossing in his sleep.
40 Dr Jago sent the plaintiff to a psychologist Mr Purchase. Dr Jago initially prescribed antidepressant medication, but the plaintiff only took half a packet because it did not feel right when he was taking them.
41 In March 2009, the plaintiff was seeing Mr Purchase weekly. The plaintiff was having ongoing nightmares of running towards the forklift and running away from it, and also about Marcus’ brains and his last deep breath. He also had flashbacks when he was awake, and loud noises startled him. He felt more shaky and emotional and he was more withdrawn and he avoided crowds. The plaintiff’s relationship with Yvonne deteriorated, and they are now separated.
42 The plaintiff’s condition deteriorated to the point where before Christmas 2009 he was feeling so bad he cut his wrists. He saw Mr Purchase, who recommended he needed medication. Dr Jago then prescribed two types of medication: one to be taken in the morning; and one at night. The plaintiff understands that the tablets are an attempt to control his thoughts, dreams, nightmares and flashbacks. “They do something to his head,” and he feels more lightheaded when he is on them.
43 The plaintiff is not having treatment with Mr Purchase at present because funding has run out.
44 The plaintiff’s psychiatric problems continue. He cannot watch anything on television which is too scary or gory. He is still withdrawn and does not go out much anymore.
45 The plaintiff presently gets flashbacks of the accident about four times a week at home if he hears loud noises and bangs. He gets flashbacks whilst on tablets – maybe about three a week. Sometimes there are other people in his flashbacks.
46 Initially the plaintiff had nightmares nearly every night of some severity. Now and then he has nightmares about three times a week, it depends. If he does not drink, he has more frequent nightmares. If he has a bad nightmare he gets a bag of frozen peas and puts it on his face, probably about once a week, otherwise he just wakes up in a sweat. He has problems with concentration and shakiness and sits down and will just cry. He has no confidence in himself.
47 The plaintiff has these problems from when he wakes and then he usually starts drinking at about 3.00 or 4.00 pm.
48 The plaintiff has a major sleep disturbance and has to drink heavily or smoke to get to sleep. Whilst drinking may help him get to sleep, he still has nightmares on a regular basis. He prefers to sleep on the floor watching the television rather than sleep in bed because he is worried that when he closes his eyes he will have recurrent thoughts of the accident.
49 The plaintiff has not worked because he has been on medical certificates since he lost his licence in early 2008. His drinking, he supposes, is stopping him working and he is scared that if he gets a job he might mess it up. He has problems with concentration and is just always nervous and cannot seem to focus on things for too long.
50 In 2009, he applied for a job which he thought was in the store. When he attended the interview, he was told the work would be in the warehouse. This made the plaintiff nervous, sweaty and jittery at the interview. He mucked up answering questions. He was not quite sure why he did not get the job.
51 The plaintiff agreed his response to medication had been positive and that he is calmer. He agreed he was more hopeful. His racing thoughts had slowed down. He would look for a job when hopefully he could get off the tablets because they made his head spin. He feels he has lost his way. He feels tired and has trouble concentrating, and just cannot seem to get on top of things.
52 The plaintiff has a generally reduced interest in activities. After the accident he just stopped everything – stopped going out; stopped socialising.
53 The only social activity the plaintiff has engaged in since the accident is baseball. Whilst he returned to playing baseball last year, he did so at his friend’s insistence, who “dragged him to play”.
54 The plaintiff played about fifteen games. He attended training now and again but did not do the whole training. He was not keen on playing and did not get as much enjoyment and fun as he did last playing in 2005 before the accident. The plaintiff is not going to play baseball this year. He is just not into it anymore. His heart is not in it.
55 Before the accident the plaintiff fished for most of the summer. He still goes fishing but does not enjoy that activity as much as he did before the accident because he gets too much time to think. He has been fishing once or twice since the accident with a friend in his boat but his friends no longer go out that often.
The Plaintiff’s Medical Evidence
56 The plaintiff attended counselling with Peter Hunt organised by the company on 16 and 24 November 2005.
57 On the first attendance, Mr Hunt reported that the plaintiff described himself as being emotionally two out of ten and that he was feeling traumatised. He noted the plaintiff still presented as in shock. He was having nightmares and not sleeping.
58 On the second attendance Mr Hunt noted that the plaintiff had “picked up a little bit” rating himself as three out of ten emotionally. He still presented as “flat” and was still having reactions to trauma but not quite as intense. The plaintiff was in a depressive state and was uncertain about work. He had some flashbacks and was thinking about the accident. Further, he was drinking more than usual and was withdrawn.
59 The plaintiff first mentioned his Post-Traumatic Stress Disorder (“PTSD”) related symptoms to Dr Jago in June 2008, and Dr Jago then referred him to Mr Purchase. Dr Jago prescribed Imovane sleeping tablets and Antenex anxiety tablets, and also discussed with the plaintiff the need to drink less alcohol and stop smoking marijuana.
60 As of February 2009, Dr Jago was hopeful the plaintiff would progress back to fulltime employment, but he thought that might take some months to achieve.
61 Dr Jago noted that in August 2009 the plaintiff attempted to help on a block, but he could not concentrate for more than an hour, and knocked over some vines with a tractor. He abandoned that job after two or three weeks.
62 In October 2009, Dr Jago noted that the plaintiff had been intermittently drinking from five to fifteen cans of beer a day. Dr Jago thought this seemed to be related to a generalised anxiety state associated with the plaintiff’s PTSD.
63 In his most recent report of January 2010, Dr Jago mentioned that the plaintiff complained of feeling worse than he did in October 2009. In particular he had less confidence, was more prone to cry for no reason, was less able to concentrate, was more easily fatigued, and more restless, not being able to sit still for more than an hour watching television.
64 Dr Jago reported that on 3 December 2009 the plaintiff agreed to start taking Aropax, 10 milligrams daily, and Zopiclone, 7.5 milligrams at night, in order to treat his anxiety, depression and insomnia. The plaintiff advised that that medication helped a little in making his flashbacks less intense, but caused an unwelcome sensation of his mind floating. The dosage of Aropax was doubled as from 10 December 2009, with little change.
65 Dr Jago thought the plaintiff’s prognosis was unchanged. In his view, the plaintiff had no work capacity. At some time in the future Dr Jago thought the plaintiff may improve to the point of attempting part time non stressful work in situations other than warehouses, but he could not predict when. He noted the best help the plaintiff had found had probably been from his sessions with Mr Purchase.
66 Mr Purchase first saw the plaintiff in June 2008. He saw the plaintiff for six sessions under the ATAPS program, and a further six sessions under the auspices of WorkCover.
67 On initial examination the plaintiff reported nightly nightmares and daily flashbacks which he coped with by excessive alcohol and marijuana use. He had suicidal thoughts, but had not actively made plans or preparations.
68 Mr Purchase diagnosed chronic PTSD in relation to which the accident was a significant contributing factor.
69 Mr Purchase noted the plaintiff found the initial treatment very distressing, but there was generally a pleasing reduction in anxiety and decrease in the frequency of traumatic images. In his view, however, the great difficulty remained the plaintiff’s high level of alcohol and marijuana consumption.
70 After the plaintiff’s WorkCover claim was rejected, Mr Purchase lost contact with him for a month or two until he saw him again in January 2009. At that time, he felt the plaintiff was managing the trauma related anxiety in an adequate way, but he was still concerned at the plaintiff’s use of marijuana and alcohol.
71 Since March 2009 Mr Purchase has seen the plaintiff on a further six occasions. There was a gap in treatment when funding was not provided.
72 When Mr Purchase saw the plaintiff on 19 November 2009 he was most concerned at the deterioration in the plaintiff’s condition. The plaintiff then presented as visibly anxious, with cold sweaty palms, and he had clear signs of superficial cuts on his wrists.
73 The plaintiff reported that his sleep patterns were extremely poor, and he was sometimes plagued by nightmares of the accident. His drug and alcohol consumption had increased, and he had become mildly agoraphobic. A week later there was no visible improvement in his overall condition. In addition, he was eating poorly.
74 Mr Purchase was sufficiently concerned as to the plaintiff’s parlous state of mental health that he insisted he contact Dr Jago. Mr Purchase noted that the plaintiff was, in the past, most reluctant to seek medical assistance. However, the plaintiff did see Dr Jago, who put him on antidepressant medication and another form of medication.
75 Mr Purchase noted the plaintiff’s response to medication was good. The plaintiff reported he was generally calmer, his thoughts were not racing, and he felt more hopeful. There had been some improvement in sleep and in flashbacks and nightmares, and the plaintiff also reported drinking alcohol a little less heavily.
76 QBE Workers’ Compensation arranged for the plaintiff to be examined by Dr Kalnins on 18 September 2008.
77 In Dr Kalnins view, the plaintiff’s mental status examination was consistent with his history, presenting as a withdrawn, dishevelled, agitated, nervous, fidgety and trembling man. The conversation tended to verbal mumbling. Pessimism was noted in the plaintiff’s overall mental state, but there was no delusional disorder or thought disorder.
78 Dr Kalnins considered that the use of alcohol and marijuana appeared consistent with the plaintiff’s personality in the method he was seeking to deal with his emotional state. He noted the plaintiff did not appear psychologically minded, and avoided consulting practitioners.
79 Dr Kalnins considered the plaintiff’s presentation straightforward and down to earth. He was not of the opinion that the plaintiff had made a frivolous claim or had presented his symptoms in a fashion of malingering.
80 In terms of employment capacity, he was not prepared to certify the plaintiff fit for duties which may involve machinery or dangerous environments while he was drinking to excess and smoking marijuana. Dr Kalnins thought the plaintiff may be fit for working in the pre injury environment, but he understood that was no longer available. However, he would be hesitant to certify the plaintiff fit for pre injury duties.
81 Given the plaintiff’s substance abuse, Dr Kalnins thought twelve sessions of psychological treatment over the next two months was not unreasonable.
82 Dr Epstein, psychiatrist, examined the plaintiff for medico-legal purposes on 14 May 2009.
83 At the time of that examination the plaintiff was renovating a pickers’ hut on a friend’s fruit block, with the aim of living there. He had just unsuccessfully applied for a job at Bunnings.
84 On examination, the plaintiff complained of sleeping difficulty and drinking to help him get off to sleep, but he still woke up during the night. He continued to think about the accident every day. He had nightmares about five nights a week, and flashbacks to the accident. He was intolerant of loud noise, and worried about his own safety and security. He has lost his nerve to drive a forklift, and his licence has been cancelled.
85 The plaintiff complained to Dr Epstein of feeling depressed all day, every day. He felt hopeless, helpless, useless, worthless, and tearful. He had lowered self confidence and self esteem. He was bored, restless, frustrated, lonely, isolated, irritable, exhausted, and agitated. He had memory and concentration problems. His libido remained low, and he had infrequent sexual activity and little interest in his appearance. At that time he did not feel suicidal.
86 On mental status examination, the plaintiff appeared well orientated. His affect was restricted, and he appeared significantly depressed and anxious. His perception appeared normal.
87 Dr Epstein found the plaintiff’s intellectual functioning appeared normal. His speech fluctuated according to his level of distress. He had some memory and concentration problems. There was no evidence of thought disorder or delusions or hallucinations.
88 Dr Epstein considered the plaintiff had developed a chronic PTSD characterised by recurrent intrusive thoughts about the accident, distress with reminders of it, increased concerns with regard to his own safety and security, hypervigilance, emotional withdrawal, and a sense of bleakness. Further, since the accident the plaintiff had developed a substance use disorder with marijuana and alcohol that continued, and he had also developed a chronic adjustment disorder with depressed mood.
89 Dr Epstein considered the plaintiff’s current work capacity was limited by his symptoms, and that there were a variety of jobs that he would be unable to do. He thought the plaintiff did not appear fit to resume work, and appeared totally incapacitated because of his psychiatric state. He thought at that stage the plaintiff’s condition was stable, and his prognosis for improvement was poor.
90 Dr Lester Walton, psychiatrist, examined the plaintiff for medico legal purposes on 19 March 2009, and more recently on 18 March 2010.
91 On recent mental status examination, the plaintiff described his own mood as tense, acknowledging questions asked by Dr Walton were anxiety provoking for him and triggered unpleasant memories.
92 In Dr Walton’s view, it remained the case that there was no striking cognitive deficit, however this did not detract from the plaintiff’s subjective impression of minor problems with memory and concentration. Throughout, there had been no evidence of psychosis.
93 Dr Walton concluded the plaintiff would continue to attract a diagnosis of what had become a chronic PTSD and a parallel significant depression and substance abuse, which were not independent of the PTSD.
94 Dr Walton noted the reintroduction of antidepressant medication, and also sleeping medication, had been beneficial to the extent of seemingly overcoming the worst of the plaintiff’s symptoms, which occurred towards the end of 2009, but in his view, the situation remained well short of definitive recovery.
95 It was Dr Walton’s impression that currently the plaintiff’s symptoms were very similar in range and intensity to those observed on original examination.
96 Dr Walton considered the plaintiff was suffering from a very substantial incapacity for work on psychiatric grounds. He thought he was not fit to operate any type of motor vehicle or machinery, and that he saw himself to have less confidence now that he could undertake any work. He was of the view that the plaintiff could be properly described as suffering from a permanent psychiatric condition.
97 The plaintiff was examined on behalf of QBE Workers Compensation Insurance by Dr Stern, psychiatrist, on 18 November 2009. At that stage the plaintiff reported depression and anxiety, disturbed sleep with nightmares, flashbacks, avoidance, reduced memory and concentration and alcohol abuse.
98 On mental state examination the plaintiff was tremulous and unable to relax. He maintained normal eye contact. His speech had quiet volume but shaky flow. The content was anxious. He had difficulty with his memory. He was reluctant to discuss the details of the accident. His affect was very anxious and his confidence was low. There was no evidence of thought disorder, delusions or hallucinations nor was there obsessive compulsive disorder. The plaintiff’s memory and concentration were reduced. His orientation was intact and his intelligence was normal. He had good insight into his situation.
99 Dr Stern noted a past history of a deprived childhood, antisocial behaviour and marijuana abuse but no past history of psychiatric treatment. In his view, the plaintiff was suffering from a chronic PTSD with alcohol and substance abuse caused by witnessing the accident. He thought this psychiatric condition had stabilised.
Vocational Assessment
100 Margaret Leitch, occupational therapist from Evidex, prepared a vocational assessment on 1 December 2009.
101 In her view, the plaintiff’s medical restrictions indicated he should avoid work in tasks involving operation of machinery, sustained concentration or performing under pressure.
102 Due to the effects of his injury, she thought the plaintiff did not have the capacity to return to his pre-injury occupation as a storeman, and no longer had the capacity to work in any other occupation for which he was qualified or had work experience. She found no alternative occupation where the inherent job requirements were within the plaintiff’s functional capacity.
103 Ms Leitch considered the plaintiff’s prospects for securing and sustaining employment in the future to be poor to negligible, consequent upon his injury.
The Defendant’s Evidence
104 The plaintiff lodged a Claim for Compensation on 29 May 2009 for emotional injuries arising out of the accident.
The Defendant’s Medical Evidence
105 The plaintiff was examined by Dr Michael Duke, psychiatrist, on 22 April 2009.
106 On examination, Dr Duke noted the plaintiff was fully oriented, and there were no organic features. The plaintiff was anxious at the interview. He had preoccupations, but they were mainly if prompted rather than spontaneous. There were no abnormalities of perception. Intelligence was average. Memory and concentration were poor, and adaptation was low.
107 In Dr Duke’s view the plaintiff was suffering from PTSD, alcohol abuse, and cannabis abuse. Dr Duke considered psychological treatment was really quite inadequate at that time. He thought the plaintiff’s condition, accordingly, was not stable.
108 Dr Duke was subsequently provided with reports from Dr Walton, Mr Purchase, and Dr Epstein. Having seen these reports, Dr Duke confirmed the plaintiff’s condition had not stabilised because he had not had adequate offers of appropriate treatment for his PTSD and substance abuse.
109 Dr Duke maintained it was inappropriate to offer a provisional assessment as to the degree of permanent incapacity because of lack of stability: noting the plaintiff’s drinking of twelve stubbies a day, smoking a gram of marijuana a day; and significant stigmata of PTSD which were under negligible treatment.
Overview
110 The plaintiff witnessed an horrific accident at work in which his friend and work mate was killed.
111 I accept that the plaintiff suffered a psychiatric injury as a result of the accident. More than a grief reaction, his condition has been diagnosed by all practitioners as a psychiatric condition of PTSD.
112 Further, Dr Walton also diagnosed a parallel significant depression and substance abuse, Dr Epstein diagnosed chronic adjustment disorder with depressed mood, associated generalised anxiety state and Dr Stern found the plaintiff was suffering from alcohol and substance abuse as did Dr Duke.
113 Whilst he drank heavily on the weekends in a social setting before the accident, the plaintiff’s drinking has increased dramatically since that time. Prior to the accident his work was not affected by his alcohol consumption with a moderate intake during the week. After the accident and as early as November 2005, when he saw Mr Hunt for counselling, the plaintiff’s drinking had become a problem. At that stage and thereafter, he was leaving work early to go the pub on pay day and during the week leaving the shed at lunchtime to have a drink and smoke cannabis to help him get through the rest of the work day.
114 I accept that the plaintiff’s usage of cannabis has also increased since the accident.
115 It is clear from Mr Hunt’s records of the initial counselling sessions that at that early stage the plaintiff was having significant problems which I accept continue to the present date.
116 Despite medication the plaintiff continues to have flashbacks of the accident about four times a week. He has nightmares every night of varying severity depending on his level of alcohol consumption. He is not even able to sleep normally in a bed and prefers to sleep on the floor because he is frightened to go to sleep because he will start dreaming of the accident. He has problems with concentration and shakiness and sometimes he just sits down and cries.
117 Whilst the plaintiff continued with his normal job for about two years after the accident, on a daily basis he struggled with his work being reminded of the accident working in the vicinity of the accident scene. He avoided the scene as much as he could, having at times to go outside the shed to deal with recurring thoughts of the accident.
118 One of the reasons for taking a redundancy rather than working at Merbein was that he wanted to work outside a warehouse environment and do driving. Accordingly, he got a job driving to collect fruit but lost that job because of a drink driving conviction.
119 From that time in early 2008 the plaintiff has felt capable of seeking work on only one occasion. When told at Bunnings that the job was in the warehouse not the store as he had thought, he became nervous and sweaty. Whilst he did not know why he did not get the job, he mucked up his answers on interview.
120 The consensus of medical opinion is that the plaintiff is not fit for work because of his psychiatric condition. Dr Epstein in May 2009 thought the plaintiff appeared totally incapacitated because of his psychiatric state. Dr Kalnins thought it would be unlikely he would be capable of undertaking any employment. Dr Walton considered the plaintiff had a very substantial incapacity on psychiatric grounds. Dr Jago thought that maybe some time in the future the plaintiff would be capable of part time non stressful work but he was uncertain when.
121 I accept that the plaintiff is “not a man who is psychologically minded” as Dr Kalnins described. The plaintiff thought that he could cope with his accident related problems by himself and with using alcohol and cannabis rather than seeking professional help. It was not until pressured by his then partner Yvonne in June 2008 to see Dr Jago that he sought help.
122 Treatment has continued since that time with different medication being prescribed by Dr Jago, initially Antenex and Imovane and more recently Aropax and Zopiclone were prescribed with a resultant easing of flashbacks but with an unwanted sensation of his mind floating. In December 2009, the dosage of Aropax was doubled with little change.
123 The plaintiff has seen Mr Purchase for counselling about twenty times when funding is available and his ongoing assistance is still required.
124 Prior to the accident, the plaintiff was a man of limited hobbies. However, since the accident he does not have the same level of enjoyment in those he previously enjoyed. He now only goes fishing rarely rather than fish all summer as fishing “gives him too much time to think”. He has tried playing baseball at the insistence of friends but does not intend to continue playing as it is no longer fun.
125 Whilst there has been some improvement in sleep and flashbacks in recent months with the prescription of further medication following the episode of self harm in November 2009, in my view the plaintiff’s psychiatric condition is long term having continued for over four years and is permanent as Dr Walton opined on examination in March 2010.
126 I am satisfied that the plaintiff’s psychiatric condition resulting from the accident is severe.
127 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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