Hamilton v TAC
[2012] VCC 629
•26 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05876
| ROBERT DANIEL HAMILTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2012 | |
DATE OF JUDGMENT: | 26 March 2012 | |
CASE MAY BE CITED AS: | Hamilton v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 629 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – damages
CATCHWORDS – psychiatric injury – post traumatic stress disorder – depression – leave granted
LEGISLATION CITED – Transport Accident Act 1986 s.93(17)(c)
JUDGMENT – ………..
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC with Mr B Anderson | Gibney & Gunson |
| For the Defendant | Mr A Moulds SC with Ms T Tsikaris | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 21 August 2004 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found s.93(17) of the Act. There:
“serious injury means—
(a) serious long-term impairment or loss of a body function;
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
4 Counsel for the plaintiff informed the Court that whilst not abandoning the claim under paragraph (a) he would not be pressing it. Rather he would be relying upon paragraph (c). The plaintiff claims a severe long-term behavioural disturbance or disorder. The body function relied upon by the plaintiff in this case is a psychiatric impairment.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon two affidavits sworn 10 December 2010 and 25 February 2012 and an affidavit from the plaintiff’s mother, Beverley Hamilton, sworn 25 February 2012.
7 The plaintiff and Dr David Weissman were 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.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)That the injury suffered by the plaintiff was as a result of the transport accident;
(b)That the injury is a serious injury within the meaning of the definition of “serious injury” contained in s.93(17).
(c)The enquiry under sub-paragraph (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. The requirements of the test are set out in the decision of Humphries & Anor v Poljak[1] where the majority of the Court of Appeal said:
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under paragraph (a) and the latter under paragraph (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be 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 at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?[2]
(d)The 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 of itself constitute or be the producer of the impairment of a body function.[3]
(e)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.[4]
(f)The judgment of the Court of Appeal in Mobilio v Balliotis[5] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[6] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “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”.[7]
(g)Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in subparagraph (c) of subsection (17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[8]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
[3]Richards v Wylie (2000) 1 VR 79
[4](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
[5][1998] 3 VR 833
[6](1995) 21 MVR 314
[7]Mobilio v Balliotis [1998] 3 VR 833 at 846
[8]supra. See also Phillips JA at 858 and Charles JA at 860-1 to similar effect
The Issues
9 Counsel for the defendant informed the Court that the consequences do not satisfy the narrative test: it is a range case.
The Plaintiff’s Evidence
10 In his affidavits sworn on 10 December 2010 and 25 February 2012, the plaintiff deposes that:
· On 21 August 2004 at about 1:30pm he was involved in a head-on accident on the Yackandandah to Wodonga road. He was driving a Mack truck for the company Rouse’s Transport. A white car crossed to his side of the road and drove straight at him. His truck ran off the road and jack-knifed. He was thrown around the cabin. The other driver died at the scene.
· He was checked by ambulance officers at the scene and went home with his parents. The next day he went to the Wodonga Hospital for a check up. He attended his general practitioner, Dr Ingle, who prescribed medication. He also saw a psychologist, Robyne Slade, who started treating him. He was very shaken up by what had happened and was drinking heavily.
· In early 2005, he returned to work but only lasted a week as he could not handle driving a truck and was still having nightmares. He commenced work as a casual labourer for Abigroup on and off for about a year. He continued to have treatment from Robyne Slade.
· In 2006 he returned to truck driving. He did not enjoy driving but had to earn an income. He had constant flashbacks while driving and had ongoing nightmares. He continues to drive trucks. Some mornings he gets so upset and nervous before starting work that he vomits.
· He has a bad temper now. His marriage ended after the accident and he feels it was because he was cranky all the time and drinking too much. He finds it hard to relax. He sleeps badly. He sweats. He has panic attacks and shaking. He suffers from strong headaches and continues to have nightmares. He gets upset when he hears about other car accidents. He is more forgetful and loses concentration at times. He cannot drive past the scene of the accident.
11 In her affidavit sworn on 25 February 2012 Ms Beverley Maxine Hamilton deposes that:
· She is the mother of the plaintiff.
· She attended the scene of the accident.
· Since the accident the plaintiff has changed. The plaintiff used to be happy and outgoing but he does not seem to talk much anymore and seems sad all the time.
The Plaintiff’s Evidence in Cross-examination
12 The plaintiff gave the following pertinent evidence. He was a slaughterman for twenty years and then drove trucks for fifteen years. As a driver, he sometimes worked up to sixty hours per week; probably now he averages between forty and fifty hours per week. After the accident, he attempted to return to work as a driver but could not do so and worked as a labourer full time shovelling concrete. He returned to truck driving. He said he is currently working for O’Brien’s, driving the Melbourne/Sydney/Brisbane and Cairns run. He was married to Carol for ten years, then married Susan whom he was married to at the time of the accident, although the marriage broke up after the accident. He said at the time of the accident, he was living with Susan in Logan Road, although his mother picked him up from the accident and took him to her house. He agreed he gave his parents’ address at the Wodonga Hospital. He though it was about a month after the accident that he separated from Susan.
13 He was told that he was in line for driver of the year award in 2008 before he injured his ankle. Recently he was filling his truck up when he heard a bang and a car ran into the side of his vehicle. It took him a long time to get over that and he still is not over that. He said he drinks probably three or four cans of Jim Beam or Light Beer at a weekend. He has an MC licence, which means his alcohol reading must be zero. He said he used to go dancing at the Commercial Club before the accident, but does not go any more. He agreed that his gout had caused problems with his dancing.
14 He said he is now living with Sue Watts. They are buying a home together. He said after he left Susan, his wife, he had to pay maintenance. He was paying board to his mother and he purchased a car and was repaying it at $240 per week.
15 He said he has nightmares about the accident once or twice a week, sometimes more.
16 In re-examination he said he did not want to drive any more; he had lost interest. He said he cannot spell but can read and would be looking for labouring work if he could get it. He has tried and been rejected. He said, “I am sick of seeing the accidents every night up and down the highway. I drive to pay the bills, I do not enjoy it any more.”
The Plaintiff’s Medical Evidence
Dr Charles Ingle
17 In a report dated January 2012, Dr Ingle, the plaintiff’s general practitioner, confirmed that he treated the plaintiff on the day of the accident and subsequently for injuries the plaintiff suffered in the accident including medication for the plaintiff’s Post Traumatic Stress Disorder (“PTSD”). He confirmed that the plaintiff was referred to a psychologist and was prescribed antidepressant medication for PTSD following his accident.
Dr David Weissman
18 The plaintiff consulted Dr Weissman, consultant psychiatrist, on 27 October 2008, 21 April 2011 and 7 February 2012, at the request of the plaintiff’s solicitor. It was Dr Weissman’s view that the plaintiff continues to be traumatised, shaken and shocked by the accident and he feels and experiences some (irrational) guilt. The plaintiff informed him of a second transport accident in which he had been involved two weeks ago, which caused “a big shake up” emotionally for him. Since then his alcohol consumption had increased. However, it was not as high as it had been in the past. He has experienced increased panic attack symptoms, including shortness of breath and tightness in his chest. The incident had affected his view about his work capacity and his ability/capacity to continue working as an interstate truck driver.
19 It was Dr Weissman’s view that the plaintiff experiences moderate to moderately severe Post Traumatic Stress Disorder symptoms and traumatisation features, directly due to the accident of August 2004, which have been exacerbated by the transport accident from two weeks ago. He said the plaintiff still has triggers, reminders and flash backs of the accident, feelings of irrational guilt, driver-related anxiety, nervousness, hyper vigilance and hyper arousal, accident site avoidance and occasional bad dreams. He continues to experience panic attack symptoms when driving long trips and he always vomits before he starts on an interstate trip.
20 Dr Weissman said the plaintiff suffers from moderately severe mixed depressive symptoms; the signs and symptoms include features of sustained depressed mood, marked irritability and frustration, anxiety, intermittent passive suicidal ideation, marked social withdrawal and avoidance, sleep disturbance, weight gain, diminished interests, energy and motivation, loss of self esteem and confidence and anhedonia. It was his view the plaintiff suffered a chronic Post Traumatic Stress Disorder of moderately severe intensity or severity and a chronic adjustment disorder with depressed and anxious mood of moderately severe intensity or severity.
21 Dr Weissman accepted that the plaintiff had suffered a severe decline and deterioration of his quality of life. He described the plaintiff as a stoical, resilient, hardworking, determined, laconic person who, if anything, underestimated and minimised his symptoms and distress. He said the plaintiff had come to the realisation that he is too anxious to continue interstate driving, that he is “sick and tired of it” and that he is “over it”.
22 Dr Weissman said the plaintiff is totally incapacitated for pre-injury duties as an interstate truck driver, purely on psychiatric grounds alone. He said he should probably not be doing local/metropolitan truck driving either. He said, hypothetically, the plaintiff may have a partial capacity for suitable duties on purely psychiatric grounds, but in the real world, he probably had no capacity for work, given his age, lack of transferrable skills, and geographical factors; that is, he lives in Albury. He said the plaintiff’s capacity to perform pre-injury duties, in his view, has become untenable.
23 Dr Weissman said he would normally recommend psychological counselling and antidepressant medication but he gained the impression that Mr Hamilton was not interested in such treatment or intervention. He said, either way, counselling and/or antidepressant medication is unlikely to appreciably or significantly improve his symptoms. He thought the plaintiff’s psychiatric prognosis was only fair at best and probably relatively poor and unfavourable. He considered he was suffering a deteriorating work capacity.
24 When examined by Dr Weissman in February 2012, the plaintiff described his concentration and memory as “up and down” and that he was forgetful. When asked about his leisure activities and hobbies, he replied “nothing”. The plaintiff said he becomes “really, really cranky” and irritable. When asked about his relationship with his partner, Sue, he said, “We argue every now and again.” Sue was present and said, “I don’t think we get on that well, to be honest”. He volunteered to Dr Weissman that he thought he could do labouring work. His partner said, he had would have to do something light.
25 When asked about his emotional state, he said, “Sometimes I won’t talk to no one”. He becomes very irritable and frustrated. When asked whether he has suicidal thoughts, he replied, “Couple of times, but not as bad as what it was”. He described his sleep as “nearly impossible”. He tosses and turns at night due to headaches, pain and bad dreams about his accident. He was asked about his interests, energy and motivation and he replied, “No”. His partner said, “He hasn’t really got any.” He was asked whether anything cheered him up. He replied, “Not lately, nothing.” He said he even gets cranky with his three grandchildren.
The Defendant’s Medical Evidence
Dr Barrie Kenny
26 The plaintiff was medically examined by Dr Kenny, psychiatrist, at the request of the defendant’s solicitors in October 2009 and January 2012.
27 In October 2009, Dr Kenny said the plaintiff had a significant Post Traumatic Stress Disorder arising under a traumatic experience of the accident.
28 The plaintiff told Dr Kenny that he manages the truck driving but finds it more stressful and is distressed when he sees accidents. He is weary of cars crossing the white line and often thinks about the accident. He avoids driving his own car when possible, does not sleep well, is on edge and cannot relax, is touchy and irritable, and still has bad dreams/nightmares once or twice a week and wakes up sweating. He has no interest in sex and has few interests. He vomits with anxiety before getting in the truck.
29 Dr Kenny described the plaintiff as “a pleasant man, markedly overweight” who had “a fairly forceful manner about him”, “a little bit dismissive” when he was talking about his residual symptoms. Dr Kenny thought he was attempting to give a good account of himself. He noticed that he had a tremor in his hand.
30 In 2012, Dr Kenny reported that things had not changed significantly since he last saw the plaintiff. On that occasion Dr Kenny said the plaintiff had “a significant post traumatic stress disorder” as a result of a traumatic accident. He noted that he had no sexual interest and he relives the experience of the accident.
31 Dr Kenny said the plaintiff will have some symptoms of Post Traumatic Stress Disorder indefinitely. He accepted his symptoms were related to the accident. Dr Kenny did not think any further treatment will make any difference to the Post Traumatic Stress Disorder. He accepted that the plaintiff was driving practically full time, but with considerable distress. He noted that the plaintiff forces himself to drive, because it is the only way he can earn money that he has become used to, but he noted that he was anxious with driving and avoids the place where the accident occurred.
32 In the report of October 2009, Dr Kenny said it would be appropriate for the plaintiff to find another occupation other than driving, but that it had to be his decision.
Credit of the Plaintiff
33 The plaintiff had the most basic level of education, having left school during the first year of high school.
34 In the witness box, the plaintiff gave monosyllabic answers to questions. He could not make logical connections between the questions and often had difficulty with time lines, with the result that his evidence was often confusing and I was left wondering how accurate his answers were, particularly in relation to when he separated from his wife. I note that he told Dr Kenny in October 2009 that he separated from his wife six months after the accident. I formed the view that he lacked the ability to express himself in that he had great difficulty in articulating the consequences of the injury he suffered and was generally reticent in offering information. He lacked the sophistication to make appropriate concessions, particularly in relation to his weight.
35 The plaintiff was described by Dr Kenny as “a pleasant man with a fairly forceful manner, a little bit dismissive when discussing his symptoms”. Dr Weissman described him as, “stoical, resilient, hardworking, determined, laconic person who underestimated his symptoms and distress”. The doctors’ descriptions of the plaintiff were consistent with my assessment of his evidence in Court. I formed the view that the plaintiff was truthful.
Analysis of the Evidence
36 I am satisfied that the plaintiff suffered a compensable injury arising out of the transport accident. Both medical witnesses agreed that the plaintiff had suffered a Post Traumatic Stress Disorder. Dr Weissman described the plaintiff’s condition as a chronic Post Traumatic Stress Disorder of moderately severe intensity or severity and a chronic adjustment disorder with depressed and anxious mood, of moderately severe intensity or severity. Dr Kenny said the plaintiff will have some symptoms of Post Traumatic Stress Disorder indefinitely into the future. Both doctors accepted that the plaintiff’s prognosis was guarded. Both expressed the view that while he was driving full time, he was doing so with considerable distress.
37 Dr Weissman said the plaintiff had come to the realisation that he was too anxious to continue interstate driving and he thought that the plaintiff was totally incapacitated for pre-injury duties as an interstate truck driver, purely on psychiatric grounds alone. He thought the plaintiff should not continue local/metropolitan truck driving either. He suggested the plaintiff had a partial capacity for suitable duties. However, given his age, fifty-five, his lack of transferrable skills, his physical symptoms and geographical factors – that is, he lives in Albury – his chances of obtaining employment in the open labour marketplace is remote. He thought in the real world, he probably had no capacity for any work.
38 The plaintiff’s evidence was that he had applied for labouring jobs at a reduced salary. So far he had been unsuccessful in obtaining alternative employment. The plaintiff’s evidence was that two weeks before seeing Dr Weissman, he had been involved in another accident which, in his words, caused “a big shake up”. He had suffered increased anxiety and panic symptoms including shortness of breath and tightness in the chest. It would seem that the accident occurred after the plaintiff saw Dr Kenny, as there is no mention of the incident in Dr Kenny’s report.
39 The evidence was that the plaintiff loved his work as a truck driver, but this has completely changed for him. Before he starts work he gets anxious and vomits, suffers panic attacks and shaking which has increased since the accident in January 2012. He has limited education, no qualifications and his only other work experience has been as a labourer. I accept that to lose the benefit of an occupation one enjoys to working under considerable distress is a very significant loss. I accept that the loss the plaintiff has suffered is genuine, as he is now looking for other work at a reduced salary and the reality is that, given his age, lack of work experience and isolation, he may have great difficulty in finding suitable employment. I note that Dr Weissman accepted that he has no capacity for any work in the real world. That too is a significant consequence.
40 In addition, the plaintiff described consequences of depression, difficulty with sleeping, headaches for which he takes Nurofen Plus, sweating, no real interests (which was reinforced by his partner), a lack of self esteem and confidence, bad dreams and nightmares. He said that since the accident he avoids the scene of the accident and becomes jumpy when cars cross over the white line coming towards him. The plaintiff is a reluctant recreational driver. He purchased an expensive car which is now unregistered because of his lack of interest in driving. His partner is the main driver unless they go to Melbourne. I consider those consequences are significant.
41 Counsel for the defendant submitted that the consequences of the injury to the plaintiff did not amount to “severe”. First, subsequent to the accident the plaintiff had established a new relationship with his current partner Sue, maintained that relationship and enjoyed a satisfactory relationship with his stepsons. The evidence was that the relationship was good yet Dr Weissman said when the plaintiff was asked how he got along with Sue (when she attended the interview) he replied “yes” and she said “mediocre”. In response to the same question in February 2012 the plaintiff said “we argue every now and again”, Sue said “I don’t think we get on that well to be honest”. The plaintiff told Dr Weissman he was not interested in sex and had no sex drive, he was cranky and irritable at home. Secondly, given the number of hours he drives and his age the plaintiff has a relatively active social life. He attends the local clubs on a Friday and Saturday night where he chats and drinks with acquaintances. Finally, Counsel submitted the plaintiff does not seek consistent psychiatric treatment for his condition, however, I note that both Dr Weissman and Dr Kenny did not consider treatment would assist the plaintiff.
42 I am satisfied that the plaintiff was involved in a transport accident which, to the plaintiff, resulted in him experiencing symptoms of a psychological nature. The consequences to him are dramatic and impact upon nearly every aspect of his life, as he knew it before he suffered the psychiatric disorder. I accept that the plaintiff’s psychiatric disorder is long term. He has suffered for seven and a half years and both psychiatrists were guarded as to the future.
43 For the foregoing reasons, I am satisfied that the plaintiff has established that the pain and suffering consequences of his injury can be reasonably described as being more than serious to the extent of being severe. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful in applications based on the consequences of possible mental or behavioural disturbances or disorders. I accept that the injury has consequences to him that when judged by comparison with other cases in the range of possible impairments maybe fairly described at the date of hearing as being “at least very considerable” and “more than significant or marked”.
44 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injuries suffered by him arising out of the transport accident on 21 August 2004.
45 I will hear the parties in respect to the formal orders.
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