Harris v Transport Accident Commission

[2022] VCC 1781

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No.  CI-21-01824

CHRISTOPHER JAMES HARRIS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2022
DATE OF JUDGMENT:	24 November 2022
CASE MAY BE CITED AS:	Harris v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 1781

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:            Serious injury – psychiatric impairment – aggravation – PTSD – delayed onset – credit

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:            Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Katanas v Transport Accident Commission [2017] HCA 32; Katanas v Transport Accident Commission [2016] VSCA 140

Judgment:                Leave granted.         

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Broadfoot KC with Ms S Gold	Robinson Gill Lawyers
For the Defendant	Mr W R Middleton KC with Ms J Clark	Solicitor to the Transport Accident Commission

HER HONOUR:

1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(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 (“Bourke Street”) which occurred on 20 January 2017 (“the said date”).

2Section 93(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.”

3This application was brought pursuant to clause (c) in relation to a psychiatric impairment.

4In 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”?[1]

[1]        Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141

5The word “severe” in the clause (c) definition is a stronger word than “serious”.[2]

[2]        Mobilio v Balliotis [1998] 3 VR 833 at 846; Winneke P agreed at 833

6The plaintiff swore five affidavits.  His affidavit sworn in September this year, was served unsworn on 11 May 2020.  He also relied on affidavits from his partner, Marina Arsinevich, sworn on 12 July 2021 and 24 August 2022; former co-worker, Melissa Leiberman, sworn on 5 July 2021 and by his mother, Su‑Anne Harris, sworn on 4 November 2021.

7The plaintiff was cross-examined.  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

8The plaintiff is twenty-nine, having been born in September 1993.  He is currently in receipt of Centrelink benefits.  His application for a Disability Support Pension was unsuccessful.[3]  He now lives with his partner, Marina, in Parkes, New South Wales.

[3]Transcript (“T”) 28

9The plaintiff failed Year 10, having passed Year 9.[4]  He then started a hospitality course and worked in fast food outlets.  He obtained a retail traineeship in a music shop KC’s Rock Shop Pty Ltd (“KCs”) selling guitars and pianos, where he worked for eighteen months.  During that time, he completed a Certificate III in Retail Operations.  He then undertook door-to-door sales for four months. 

[4]        T21

10The first taxation return he submitted was for the 2013-2014 financial year, during which he worked at KC’s, earning around $400 a week.[5]  He worked half the next financial year at KC’s, earning $11,995 net.  He was then unemployed for the rest of that year and worked at a pizza store and was paid cash in hand.  He did not think he was making enough to pay tax.  He was then living with his father.[6]

[5]        T19 – see Appendix 1

[6]T20

11The plaintiff thought he probably started work with Ignite Marketing (“Ignite”) in about September/October that year.  Ignite had fundraising contracts from different NGOs.  He would approach a potential donor on the street and get them to pledge a certain amount a week for the relevant charity.  He would take the donor’s credit card details, do a screen shot, and send it off to admin, who would tally up everything at the end of the week and work out his commission.[7]

[7]T24

12He could earn between $700 and $900 per week.  It was officially recommended to work 7.5 hours per day, which he usually did.  He often worked more if he was doing well – sometimes up to 14 hours a day.  Some days, he did not work at all.[8]

[8]        T22-25

13From September 2016 to the end of the June 2017, he earned $33,000 from Ignite (N4C and C2V).  He felt that was a good income at the time.[9]

[9]        T24

14Before the said date, he thought he was always trying to look for a better job.  He agreed he had had trouble sticking with a job due to the drugs, “100 per cent”.[10]

[10]        T75

15As at the said date, he was living with his partner, Marina, having been dating her from late 2014.  She also worked at Ignite.[11]

[11]T22

Pre-incident health

16In his first affidavit,[12] the plaintiff described a difficult childhood.  When he was about fifteen, he started smoking marijuana and was smoking very heavily daily by the time he was sixteen.  He continued to smoke heavily from a bong until he was about twenty-one.  At that stage, he was doing odd jobs here and there at a chicken shop, working as a dishwasher at Taco Bill, and also KC’s.[13] 

[12]        Served unsworn in May 2020

[13]T30

17When he was eighteen, he started doing harder drugs.  He had psychological treatment a few times for this problem.  He used LSD for about a month, during which time he had a bad experience.  He told people at KC’s he was depressed, and they called the suicide hotline, and he was referred for treatment for a few weeks.  He was prescribed anti-depressants, which he only took for a short time as they made him groggy.[14]

[14]        Plaintiff’s first affidavit served 11 May 2020, sworn on 14 September 2022

18He knew he took speed or crystal meth for a very small stint.  Marijuana made him anxious, and the crystal meth made him very spacy for maybe a week afterwards.[15]

[15]T31

19He quit drugs when he was twenty-one.  He wanted to be well and knew that drugs were the reason why he was not physically or mentally healthy.  As of May 2020, he had not smoked marijuana for five years.  He quit cigarettes, although he still vaped.

Eastern Health

20When he was eighteen, in December 2011, he attended Eastern Health.  He had cleaned out his bong with a detergent of sorts and ingested marijuana and suffered a chest issue.[16]

[16]T31

21He remembered on 25 March 2013 going to Eastern Health again, where he was seen by the psychiatric triage in Emergency.  He had had a disagreement with his girlfriend, with whom he had had a “very horrible” relationship.  In addition, he had insufficient work, doing 8 hours a week.  He was living in a bungalow and isolating himself, and not interacting with his half-siblings.  He could not get unemployment benefits because his father was a high-income earner.[17]

[17]        T32

22The March 2013 Eastern Health note read “intermittent waking++”.  He agreed he had difficulty sleeping back then.[18]  He attended because he reported an overdose with suicidal intent.  It was correct that he had experienced suicidal ideas since he was fourteen.[19]

[18]T32

[19]T33

23He next attended Eastern Health on 4 August 2014.  Notes of that attendance detailed chronic suicidal ideation, and a history of the suicide attempt in March 2013 when he took an unknown quantity of Panadol and blood medication.  At that point in his life, he very much wanted help with the way he was feeling, and made an attempt “definitely”, but he honestly did not think what he did would have killed him.  It was “like a cry for help situation” which he regretted.  It was a very dirty tactic to try and get help from people, but at the time he felt he needed to do it.[20]

[20]T33

24At a follow-up at Eastern Health on 17 September 2014, the plaintiff’s use of marijuana and alcohol was detailed.  He would binge when he did drink back then.  If he was feeling bad, then he would drink heavily.  He had tried ecstasy two years earlier.  It was noted he had used it five times in the last six months.  He also took some mushrooms.  He took LSD once.  He confirmed that he had stopped taking any drugs when he was twenty-one, other than prescription medication.[21]

[21]T34

25After an attendance at Eastern Health in November 2014, he made a decision to clean himself up and has not taken drugs at all since.  He now barely drank and rarely smoked cigarettes, and he remained proud of himself for making that change.[22]

[22]        Plaintiff’s second affidavit sworn 12 July 2021

26He agreed his mental health issues, requiring attendance at Eastern Health on these occasions before the said date, were serious.[23]

[23]        T41

27He could not remember seeing a psychiatrist, Dr Tipirneni, on referral from a Gap Road Medical Centre (“Gap Road”) in November 2015,[24] but he guessed he went there if that was what the records said.  He was not 100 per cent sure he went there.  He agreed he had then been suffering from anxiety symptoms for some time.  He knew drug use was involved, and he was quitting drugs and becoming clean, and there was a lot of anxiety involved with that.[25]

[24]T28

[25]T29

28When seen at Gap Road on 16 November 2015, he guessed that if it was then recorded he was having eleven standard drinks a day, three to four days a week, that was correct.  In 2015, he was consuming alcohol a lot for a short period of time.[26]  He denied being a heavy drinker.  It was a coping mechanism for a very short time.  Heavy drinking was for a very small stage in his life, maybe a month.[27]

[26]T45

[27]T77

29It was correct he had suicidal ideation in 2016 as Professor Taylor reported.  It would have been definitely around the turning point of what his life was going to become.  He was quitting everything, and working very hard to become what he would classify as a normal hardworking person, and there were difficulties doing that.

30In 2016, he was not working, and he was receiving social security benefits.  He was “facing thoughts, but powered through them and continued on”.  He did not see anyone for treatment at that stage:

“I’m sure it’ll become very evident that I’m very hesitant to speak to people when it comes to mental health.  It’s a regret that I have definitely.  I wish I did speak to someone, but I didn’t.”[28]

[28]T35

31He thought he attended Eastern Health following a suicide attempt in 2016.  He had a blood test in Emergency, and was deemed “fine”.  He had definitely not started working for Ignite at that stage.  It was well before that job.[29]

[29]T36

32He agreed that he regularly went to the doctor for nasal congestion and ENT problems as were noted on 17 March, 13 July and 31 October 2016, irrespective of whether he was working or not.[30]

[30]T46

Bourke Street

33While working for Ignite on 20 January 2017, the plaintiff was raising money on Bourke Street, near its intersection with Elizabeth Street.  He saw a red car driving fast up Bourke Street, hitting people as it went.  He saw it run through lights, and he was pretty sure he saw the pram get hit, where the child later died.  He saw another person, the Japanese exchange student, hit, and surrounded by blood everywhere.  He kept watching the red car until it went out of view.  He heard what sounded like gunshots.  Lots of people were walking around with blood and cuts over their faces.  He saw the Asian man run over.  He thought there was a spilt water bottle, but realised the liquid was coming from the Asian man’s body as he was lying on the ground bleeding out. 

34He told a police officer he had seen the incident scene and his details were taken.

35His team leader said, “let’s get out of here”.  The plaintiff tried to find one of his co‑workers, who was a new German woman.  He was getting frantic, trying to call her phone.  It probably took only about fifteen minutes, but it felt a lot longer.  He found her crying in the Optus shop.  He then went with a couple of others to Melbourne Central train station.  His team leader asked him to go back to work, but he refused and went home. 

36He did not want to think about what he had seen in Bourke Street for some time.  He pushed it down inside.  He got nightmares about what happened.  Sometimes he would not sleep the whole night.  He would not turn up to work and say he had a sore throat or get a doctor’s certificate saying he did not feel well.  He did not disclose what was really bothering him.

37While he attended Diggers Rest Medical Centre on a number of occasions, he did not complain of issues related to Bourke Street because whenever he would go to a doctor he would always say he had a sore throat.  He would get a medical certificate to get time off work because he would be too tired to go to work.  That was when he started experiencing nightmares and flashbacks.  They were very sporadic; it was not all the time.[31] 

[31]T39

Work after Bourke Street

38The plaintiff did not work for Ignite as much.  He lived in Sydney for four months, where he continued to work for Ignite.  He did well there.  He felt better not being in the Melbourne CBD all the time.  When he returned to Melbourne, he stopped doing well and started having nightmares again.  He was working long hours but struggling.

39He did not think he worked the day after Bourke Street, but returned the following day, working his 7.5-hour day.  He asked not to work too close to Bourke Street.  He worked in the CBD but not the Bourke Street Mall, save for one occasion.  He started making less sales after Bourke Street, but he earned around the same amount.[32]

[32]        T23

40After Bourke Street, he tried to function at work.   He was able to complete the tasks.  He agreed he was coping with the work.  He did have an outgoing personality, and agreed that was still the case after Bourke Street.[33]  He agreed he did really well with Ignite after Bourke Street, as Professor Doherty reported.   He was a successful salesman and made team leader quicker than most people.[34]

[33]T38

[34]T51

41While continuing to work at Ignite, he did not see a doctor and did not want to talk to anyone about Bourke Street.[35]

[35]T24

42He attended Gap Road on 9 February 2017, twenty days after Bourke Street.  His complaints were then dizziness, ears, back.  It was noted he was drinking alcohol, three times a week, usually 8 to 9 pints.  This was “a very literal answer”.  He was not a heavy drinker “or anything” at that stage.  He did not think, with his body weight, he would be able to drink that much.[36]  He might have meant he drank that much over three days, not three days a week.[37]

[36]T47

[37]T48

43“No regular drug use – intermittent party drug use” was also noted.  This was his medical history, confirming he had stopped using at the age of twenty-one.[38]

[38]        T47

44The history of panic attacks referred to in that note, would have been when he was smoking marijuana.  At that stage, he had quit all drugs, and when giving information to doctors, he would give them a relevant medical history.[39]

[39]T48

45In 2018, he quit Ignite and joined another fundraising company, Surge.  Ignite was a franchise of Surge.   He worked at Surge on and off for about two years.  He agreed he was working full time during that period, but he was taking a lot of days off.  He worked Monday to Friday and also Saturday if he needed to meet a sales target.  During that year, he was not having any treatment relating to Bourke Street.[40]

[40]T25

46When he attended Diggers Rest on 21 April 2018 with his mother, it was noted he had some memory issues and stress.  That was something he had talked to his mother about.  He was not sleeping properly, and was very stressed at work, and she insisted he go to the doctor.  He did not tell the doctor about his Bourke Street problems because he already found it very difficult to speak to people about his mental health.   Also, his mother being with him would have been even more reason not to talk about it.[41]

[41]        T41

47He definitely would not agree that his condition, in relation to Bourke Street, was not serious in April 2018.  He did not seek medical attention then, because he had given up drugs, which were his previous coping mechanism, and he did not have any other one, so he just continued to work.[42]

[42]T42

48On 9 May 2018, he attended Diggers Rest to have his ear flushed out and was given a medical certificate.  That was not normally a problem for which someone would ask for a day off work.  There were further attendances in September 2018 and March 2019 relating to dental and cold issues.[43]

[43]        T42

49While he requested a medical report from this clinic in May 2020, he knew he had not complained there about Bourke Street, but he thought all medical reports were relevant.  He stopped going to Diggers Rest which was close to his home because it was a very busy place.[44]

[44]T44

50After Surge, his next job was at Red Energy selling electricity, working an 8‑hour day on a roster.  He worked there for about five months.  He was suffering from nightmares and feeling depressed.  Because he was becoming increasingly stressed and sleep-deprived, and not being able to make any sales, he was asked to leave.   At that stage, he was not getting any treatment in relation to Bourke Street, although he was going to doctors for other reasons.[45]

[45]T26

51He then started trying to join the army for about six months but had a few issues with this.  Firstly, he had not passed Year 12 and his school had lost his records.  He would have had to go back to school for six months if he wanted to enlist.  He also did not push on with the application because he was worried in his head he would not pass the psychological evaluation, and that was another reason why he started thinking he needed to learn to deal with the trauma of Bourke Street.

52In mid-2019, Hays Specialist Recruitment found him work at ANZ Bank as a credit-card consultant.  The job involved being on the phone all day on a computer, working Monday to Friday on a roster.  His earnings in this job were the highest he had consistently.[46]

[46]T27

53He wanted to do well in this job and that is what led him to seek treatment.  At first, he did well.  He was prescribed different medication to deal with anxiety and depression.  In late 2019, he felt worse and was not able to concentrate and manage his stress at work, and he had days he when was not going to work.  He was let go from ANZ, having been told this was because his performance was decreasing.

54When he started at ANZ in June 2019, he really wanted to do well and not call in sick, using the old excuses.  He had another bad night of nightmares and realised he needed to look into his mental health.

55He first went to a general practitioner at My Clinic in St Kilda on 4 July 2019.  Later, he saw Dr Moon at that clinic.  Dr Moon was the first doctor he felt comfortable  explaining what was going on with Bourke Street.  He was prescribed antidepressants.

56One time at work, the girl next to the plaintiff was talking about Victims of Crime Assistance Tribunal (“VOCAT”).  He lodged interest in it and had some psychological treatment funded through VOCAT.  That is when he started to see counsellor, Dr Richard Hall.  He was seeing him once a week as at May 2020, initially funded through VOCAT, then Medicare, and then TAC said they would fund the sessions. 

57As at May 2020, the plaintiff took 2 x 25 milligrams of Valdoxan a day, prescribed by Dr Moon, and had recently asked him about increasing the dose due to symptoms, but was told to stay on the same dose because it was already quite high.

58As at July 2021, the plaintiff was seeing Dr Hall two to three times a month over Skype, and spoke to Dr Moon over the phone.  He was taking the generic version of Valdoxan, 50 milligrams.  Recently, when he was really struggling, Dr Moon had prescribed a sleeping tablet.  Dr Moon had previously recommended he seek EMDR treatment, but the plaintiff was reluctant to see anybody else as he did not like speaking about what had happened to him and found it difficult to open up.

59The first time the plaintiff spoke openly with a medical professional about Bourke Street was with Dr Moon in September 2019 following the casual conversation with a co‑worker who had information about VOCAT.[47]

[47]T49

60The plaintiff was looking for help, and had rung one of the managers at ANZ.  That was why he started going to Dr Moon and why he asked for medication to help, even though he was still apprehensive about doing so.  He did not really want to go through a health plan of ten free sessions because he did not think he could deal with his issues in that number of sessions, and then he would not be able to afford treatment afterwards.[48]

[48]T49; T57; he received a $15,000 payout from VOCAT

61He is “pretty sure” he spoke to Dr Moon before he spoke to his co‑worker but then said he was not 100 per cent sure.  It was “a steep decline”, in response to a suggestion he was functioning very well when working for Ignite post Bourke Street.[49] 

[49]        T50

62While he earned more through until 2020, his earlier jobs had been “washing dishes and things,” compared to a sales job with commission.  When it was suggested he had sustained work for a long period of time post Bourke Street, he definitely tried to, and always tried to sustain things for as long as possible.  He thought that was to his detriment.[50]

[50]T50

63He contacted VOCAT and was referred to Richard Hall, because he wanted to be able to continue working.  He did not have his mother’s help to fall back on.  At that stage, he was living with Marina in St Kilda and going to work.  He then could cook, wash the clothes, do the dishes and clean the house.[51]  He did not have a drivers licence, and had not driven since getting his P‑plates at nineteen.[52]

[51]T52

[52]T53

64When asked why, all of a sudden, he decided to do something about Bourke Street, he considered this “continuing [his] recovery in terms of being a responsible person”.  In the two-and-a-half years earlier he had done nothing because he was very irresponsible and very immature for a long time.[53]

[53]T54

65When asked about seeing a lawyer, the main thing he remembered was wanting to get help to obtain a mental health plan.  He understood why he is in Court.  He was here for:

“like a certificate, injury certificate – I think it’s to prove that I have PTSD, isn’t it? ...  There would be a monetary claim and I’m assuming also prolonged access to mental health care ...  compensation, yeah, so like the claim.”[54]

[54]T57

66He did something about Bourke Street after two-and-a-half years because he was struggling with sleep while working at ANZ, and knew there was something wrong and it did not seem to be getting any better.  He had not earlier had a mental health plan because of childhood experiences, getting to know a counsellor and then eventually “you don’t get to see them any more”.[55] 

[55]T58 and T61

67He first saw Dr Moon at St Kilda on 10 September 2019, and told him of Bourke Street for the first time.  He did not honestly remember whether he had seen victims of crime before that, but then thought that would have been the case.[56]

[56]T79

Recent work

68As at May 2020, the plaintiff worked part time in the dog grooming salon – YP Korn – in Prahran.  He enjoyed the job and wanted to pursue it further.  He lost shifts because it was shut down due to COVID.  It then re-opened, but he reduced his hours as it was a long commute from his new home in Albion.  He wanted to work, and was trying to return to work as much as possible.[57]

[57]T27

69He was then planning on getting a dog trainer’s licence.  He had started the Certificate III in Dog Training and Behaviour.  He felt much better around dogs and thought this would be a job where he could work independently, and he would like to train emotional support dogs.

70In early February 2021, on his way to work, he became extremely agitated when a car came close, but he and Marina did not have an accident.  After that, he found it hard to keep going to work, and he lost confidence in travelling to work and had some shifts off.

71While he was away from work, new management took over and this was more change for him to cope with.  He stopped asking for shifts and stopped going to work altogether.  They stopped giving him shifts and he thought he last worked at the end of February 2021.[58]

[58]        July 2021 affidavit

72He contacted the training provider to see if he could defer the Certificate III in Dog Training and Behaviour.  His request was refused, and he was told he would have to start again at a new induction that was on hold until 2022.  He had asked for the deferral because he had not been doing too well mentally.

73As of October 2021, he had not returned to work at YP Korn due to his mental state, although there was work available now the lockdown was ending.  His application to defer the course had then been accepted on the basis of his mental health issues.  At that stage, he would have liked to finish the course, but he was then barely able to walk his own dogs.  He had felt increasingly anxious about travelling there – an hour-and-a-half drive.  Marina used to drive him there.[59]

[59]T69

74He has not returned to work or recommenced studying due to his condition.  He feels down and worthless and is not looking for work.

75Mr Hall was definitely encouraging him to go back to work, but he is not as optimistic now.  The plaintiff wants to return to work eventually.  He could not say yes or no to whether he would.[60]

[60]        T68

76He would hope, putting himself a couple of years forward, to be back at work in some form or another.  To try to achieve this, he was continuing his treatment.  He would say his mental health has declined since September 2019, even though he had been able to work until 2020 and go to Russia in late 2018/2019.[61] 

[61]        T70

77He attempted very hard to get back to work when he took the dog groomer’s job on Richard’s recommendation.  He felt he had a personal responsibility to try as hard as he could to work, and it became evident to him after that job, that he was not really capable of being consistent enough for a work environment.[62]

[62]T72

Nightmares/sleep

78His nightmares have evolved over time.  He never used to get gruesome nightmares.  They started off almost as flashbacks where he would wake up after seeing a dead body, like he had seen at Bourke Street.  They had now evolved into really gory things which were not always related to Bourke Street.  He worried that because he did not get treatment, that had made it worse, and that was his mind trying to deal with the experience.[63]

[63]        May 2020 affidavit

79Sometimes, nightmares were of him being behind the wheel “doing it” to other people, and more recently, he had had a regular dream that someone got skinned alive.  When it happened, he could not get back to sleep when the adrenaline was running.  He tried to do breathing exercises, and he now had a dog and tried to use her energy and calmness to relax himself.

80When under stress, the nightmares got worse.  That made him very tired during the day, and he had a nap if he did not have to go to work.  If he had a bad day and was feeling stressed, he could tell that night he would have a nightmare and he felt scared to go to sleep. 

81As at July 2021, sleeping was still a huge problem and he still had nightmares.  He might go a week without interruptions, where he woke at night, but he did not have terrible nightmares.  He would then have one nightmare and it would start them off for a couple of days.[64]

[64]        July 2021 affidavit

82In September 2021, Professor Taylor suggested the plaintiff take a particular type of blood pressure medication to assist with nightmares.  Dr Moon prescribed Minipress Prazosin but that had side effects, so he stopped taking it.

83Before Bourke Street, the plaintiff used to be a good sleeper and only rarely had difficulties, but since that day, he had had nightmares, which were vivid, and graphic images.  The nightmares came in cycles.  They were very distressing.  When they came he retreated into himself.  Speaking to Richard helped.[65] 

[65]        October 2021 affidavit

84As of August 2022, he struggled to get out of bed due to poor sleep and fatigue.  He had nightmares most nights, on average one to two a night, which were transport or car related.  He had intrusive thoughts of the Asian student who was crushed and bloodied.  He was sleeping on average four to five hours a night and some nights less, waking up two to three times a night.

85He was sleep deprived and his sleep was worse than ever.  Sometimes he had weeks where he had nightmares once or multiple times a night.  Other times, it was less often.  He was scared and tired when he woke up. 

86It was correct, as Dr Weissman reported, that the plaintiff had not had much by way of symptoms in terms of flashbacks and nightmares.  He was “pretty sure” he had a recollection of seeing a baby in the pram.  When it was suggested that that scene was further up at the RACV building, he said he did have a recollection of a pram being at a crossing.[66]

[66]T37

87It was correct, as Dr Weissman recorded, that “at the start” he did not have bad dreams and nightmares.  They began very infrequently, so he could not recall too much when it all started.  He knew it started getting really bad in late 2018.  2019 was when he definitely noticed there was something “horribly, horribly wrong”.[67]

[67]T38

Other consequences

88He had been anxious when he quit drugs, but that anxiety had worsened since Bourke Street and was triggered by reminders of Bourke Street such as the name “Bourke”.  He had a lot of anxiety around roads and had been unable to sit his driving test as he was scared to get his licence.[68]   

[68]        May 2022 affidavit

89He had a rescue dog which he found extremely helpful, calming him down when he had a panic attack or nightmare.

90He felt down, depressed and worthless.  He found it difficult to motivate himself for basic things.  His personal hygiene had suffered.

91There were problems with his relationship with his Russian girlfriend, Marina, as culturally she did not understand depression and that he had ongoing problems related to an event so long ago. 

92As at July 2021, his anxiety seemed to have worsened.   He did not go outside very much, aside from walking the dogs and shopping.  He felt down, was irritable and had outbursts.  He still had not learned to drive and was barely comfortable as a passenger.  He shook uncontrollably when steel plates from roadworks caused a loud noise in the car.  His confidence was low.  He could not drive and could not even look after his own dogs.

93Most modes of travel were difficult.  He went on a plane in early 2019 when he visited Russia with Marina.  That did not bother him.  They spent a lot of time in the country with her family where there was not much traffic.  It was winter and the cars drove slowly.  He did not mention this trip to Russia in his May 2020 affidavit because he did not think it had anything to do with Bourke Street.[69]  He enjoyed his four-week holiday with Marina “doing normal holiday things”.[70]

[69]T62

[70]T63

94He was very stressed when moving house and his dog had surgery.  Marina had to get him into the shower, he could barely sleep and was having terrible nightmares, he felt delirious and incredibly tired, and asked Dr Moon for sleeping tablets.

95Before Bourke Street, he was extremely outgoing, but his social life was now minimal.  He thought about what happened every day, and although he tried not to think about it, he could not get it out of his head.

96As of October 2021, he struggled to leave the house alone and often exercised the dogs in the back yard to avoid going out.  Sometimes he went for days without leaving the house.

97His depression had been pretty bad, and he felt horrible all the time.  He just lay on the couch while Marina went to work.  He had anxiety every time he left the house, and his hands would start shaking and he would feel nauseous.

98He felt worse when travelling and he felt anxious going to the supermarket or crossing the road.  He was still not at a stage where he could learn to drive.

99He continued to have disturbing flashbacks.  He had to be careful what media he consumed.  He felt best at home when the environment was controlled.

100He could not get out of his head what happened at Bourke Street was a murder in a safe place in his own country while people were just going about their day to day business.

Life in Parkes

101The plaintiff swore his fourth affidavit August 2022.  y that stage, he and Marina had moved to Parkes in New South Wales.

102While he benefited living regionally, as it was quieter and better for his mental health, travel was still hugely difficult for him, and he continued to be hypervigilant.  He was now at the point where he struggled leaving the house alone and struggled to travel and attend appointments unless Marina could give him a lift.

103His life was boring day to day, playing video games and cooking, and he tended to stay in bed for a long time, only getting up to walk his dog.  He tried to do his best to look after himself.  However, he only showered once or twice a week and struggled to clean the house.

104He got intrusive mental images and pictures of the Bourke Street scene and anxiety most days.  He had suicidal thoughts regularly but had never planned his suicide.

105Intimacy with Marina had been severely affected and they were very infrequently intimate since Bourke Street due to his low libido.  Their relationship is currently steady.[71]

[71]T69

106He believed he had lost weight.

107He continues to take Valdoxan, 50 milligrams a day, but he does not feel like it is working as it used to.  His mood has worsened.  He had spoken to Dr Hall about seeing a psychiatrist, given how bad things had got for him mentally over the last year.[72]

[72]        August 2022 affidavit

108His mental state has got worse, and he leaves the house even less than he used to.  He does not even walk the dogs regularly anymore.  He thinks about what happened every day.

109He tried once to go to Parkes and get medication by himself.  It was a big deal for him to go shopping without Marina.  He had a panic attack when he saw a red Commodore in the street.  When shopping and looking at camping gear, he panicked when he saw the graphic on the packet with a young Asian male who reminded him of the student covered in blood.

110His safest place was home because he had an underlying feeling that he was not safe when he was out.  He had not made any friends in Parkes.

111Rather than the dogs being his reason to go out, he now mostly spends time with the dogs inside or in the back yard.

112His motivation is very low, and at the moment, it feels like he is just trying to hold things together.

113Current treatment consists of Skype calls to Richard Hall, usually once a week, and taking Valdoxan.  Dr Moon has moved away from St Kilda and the plaintiff has not seen him “for a really long time”.[73]

[73]T68

Hobbies

114As at May 2020, his memories of Bourke Street had affected a lot of the things he used to enjoy.  He stopped playing guitar almost immediately after Bourke Street as it had taken the joy out of playing.  He had tried to get back into video games he previously enjoyed but had difficulty playing because of problems with concentration.

115He had rarely gone on fishing trips with his mates since Bourke Street.  He had withdrawn from seeing people as they often wanted to talk to him about Bourke Street.  He no longer made friends easily. 

116He no longer has motivation to do things he enjoyed, like playing the guitar, keyboard and drawing.  His hobbies had become tainted, like everything else after Bourke Street.

117After Bourke Street, he pretty much stopped doing creative things until starting to see Richard Hall, who told him to take them up again.  Musical instruments had become an “extremely non-important part of his life” after Bourke Street.  He “didn’t do it” much at all, and would have maybe picked up a guitar once every couple of months.  He played the keyboard every now and again, but does not actually have it with him at Parkes.  It is in storage in Victoria.  The bass guitar is at Parkes and he plays it very rarely.[74]

[74]T65

118He went to concerts “never”, but then agreed he had been to a Kooks concert, which he posted on his Facebook, on 28 September 2018.  He agreed he appeared to be enjoying himself.  The concerts normally go for “like two hours, maybe three”.[75]

[75]T66

119He agreed that there were a series of other photos posted of social events at work: one on 30 September 2017, and then on 5 July 2018.  There was also an April 2017 post, he having moved to Sydney two weeks earlier.  On that post, it was noted “Chris is smashing it”.[76]

[76]T67

120While he had got back to 6 to 8 hours of digital drawing on the computer, that hobby had not been worth doing any more.  It was like a coping mechanism.[77]

[77]T75

Examination with Professor Taylor

121The plaintiff did not tell Professor Taylor he was videoing the examination in late 2021. He recorded it because he could have been misunderstood and misrepresented because this had happened in previous appointments and did not feel listened to.  He did not believe Professor Taylor’s report accurately conveyed their conversation.

122He did not agree at all his sleep was normal as Professor Taylor reported.  That was one of the most difficult symptoms since Bourke Street, with regular and disturbing nightmares.  While when speaking to Professor Taylor he had had a good amount of sleep very recently, the week before had been horrible with nightmares.  He also has very inconsistent sleep.[78] He confirmed he also told Professor Taylor of nightmares and sleep interruptions and anything like that.[79]

[78]T73

[79]T76

123Professor Taylor did not ask him to describe what the nightmares were about or ask him about his experience during flashbacks.  Professor Taylor did suggest possible medication for his nightmares.

124It was incorrect that the plaintiff went fishing fortnightly as Professor Taylor had reported.  He had deferred the dog training certificate and was not studying at that time.

125Professor Taylor did not mention in the report that in response to his questions the plaintiff told him that he valued his mental health more than going to Bourke Street if he was paid $500.

126The plaintiff was at home for the interview and had his dogs with him.  That was nothing like he felt when he had to face the world.

127Even if he appeared to be in an upbeat manner, that was not a reflection of how he actually felt.  He used the method of “fake it till you make it” that he had learned in his years of sales every day so as not to portray extreme vulnerability.  It was extremely painful and frightening for him to expose his actual headspace on the matter.[80]

[80]        October 2021 affidavit

Lay evidence

Marina Arsinevich

128In her first affidavit sworn in July 2021, Ms Arsinevich described meeting the plaintiff in about October 2016 while working at Ignite.  The plaintiff was then active socially at work, and was known to be good at his job.  They started dating each other officially at the end of 2016, and enjoyed going to restaurants and movies.  They were not living together at the time of Bourke Street.

129The plaintiff, while telling her what he saw at Bourke Street, did not go into detail at the time, but could not work the next day as he could not get out of bed.  The weekend after Bourke Street, he was reluctant to go into town for a pre-organised social occasion.

130They moved in together in March 2017.  She noticed a change in his behaviour.  He became quieter and more reserved, and he was shutting down from her and his friends.

131The plaintiff had been having nightmares for a while, which she became particularly aware of after they moved in together.  The day after a nightmare, he would be so tired he would have to call in sick from work, and his mood was lowered.

132Sometimes he would tell her he was not going to work, and would spend the day in bed.  He would tell her he was tired and did not want to talk.

133His nightmares seemed to get worse over time, and he more frequently missed more work days.

134In about April 2017, they were offered the opportunity to go and work in Sydney.  At first, the plaintiff seemed to be getting better there, and they worked together almost every day, and he was happier and generally enjoying his job and lifestyle.

135After a few months, his nightmares started to get worse again, and she could recall one day having to drag him out of the shower when he had fallen asleep.  He started missing lots of days of work, sometimes taking a whole week off at a time.

136By August 2017, he was no longer happy in Sydney, and they moved back to Melbourne, where he continued working.  However, he was not getting any better.

137After they moved home, they were living with his mother.  On one occasion when the train bells went off at a nearby railway crossing, the plaintiff jumped out of bed and started screaming incredibly loudly.

138In early 2019, they went to Russia together, and that was the best she had seen him for a while.  He seemed to be in a much better place away from Melbourne.

139In June 2019, he started working at ANZ, and at first appeared motivated and was doing well.  However, the cycle restarted.  He would get nightmares and became too tired to go to work, and was constantly affected.  His tiredness was affecting his work, and he was constantly exhausted, and in about January 2020, he was let go from ANZ.

140That year, he started working casually at a dog groomers.  Being around animals seemed to calm him down.  He was rarely socialising with people any more.  They got a dog at home, and then another one, which seemed to calm him down. 

141During COVID, he got very few shifts at the dog groomers.  They moved from St Kilda to Albion.  She understood the owners of the business changed, and from December 2020, he stopped going to work and spent most of his time at home.

142A major issue since Bourke Street was that he was very nervous in cars and on public transport.  She tried her best to drive carefully, but if there was a lot of traffic he became very panicked and overwhelmed, in particular on one occasion in February 2021.  He had what he described as a panic attack around that time when they were picking up a dog from the vet in the car, when she had to apply the brakes forcefully.  He had that sort of reaction to minor driving incidents on multiple occasions.

143The changes to his personality since Bourke Street have affected their relationship.  She found it difficult to talk to him at times.  They often fought, and he was much less tolerant and snapped at her much more easily, especially after he had had nightmares.

144When she went out with friends, she tried to drag him along.  When she was successful he was often withdrawn and appeared disengaged.

145As of July 2021, she could not remember the last time they went on a date.  He had rarely had the energy or motivation to do things, a very different situation to when they first met.  He had one friend who would call in every now and then, but before Bourke Street, the plaintiff used to be the centre of his circle, but he had lost contact with people.

146They relocated to Parkes in December 2021.  It was a sudden move.  They were quite depressed from the lockdowns, and also wanted to be away from the city.

147They sold the car.  She left her job.  They stayed in a caravan park on the way.  The plaintiff suffered nightmares almost every second night.  They ultimately found a place in Parkes.

148The plaintiff still sees his psychologist and takes his medication.  He gets very depressed and feels a lot of pressure.  When he gets depressed, he does not sleep or look after himself, and does not shower for a week at a time.

149The plaintiff still has nightmares, and he takes the medication.  They do not communicate about his nightmares, and he isolates himself after them.

150The biggest change since moving to Parkes is that the plaintiff does not sleep very much.  He goes to bed around 2.00am or 5.00am.

151She works from home for a health insurance company as a sales consultant, starting that job in February 2022.  Although she is working from home, their routines are very different, with him sleeping when she is awake.

152Since they moved to Parkes, the plaintiff has left the house maybe once or twice without her to get his prescription medication.  They do not leave the house very often, and do not have any friends in Parkes, and only go out when they have to, to walk the dogs, to get medication or to go shopping.  The plaintiff still has difficulty crossing the road, with a fear of traffic.  He does not like being a passenger in a car unless she is driving.

153She has to give him notice to leave the house, as he needs to be mentally prepared to go out.  Once a week they go grocery shopping together, and she has to give him notice even for that.  She does most of the housework.  He never does the dishes or cleans the house.  He mows the backyard about every couple of weeks, and cooks maybe once a week.

Melissa Lieberman

154Ms Lieberman swore an affidavit on 15 July 2021.  She was the salon manager at Pawsome Place Dog Grooming in Prahran where she employed the plaintiff for about twelve months.  While he was a pleasure to work with and loved his job, at times he appeared agitated or distracted.

155As time went by, he progressively started becoming more and more unreliable at work and stopped turning up for his rostered shifts, saying he was sick and unable to come in.

156Initially, she was not aware he had witnessed Bourke Street and did not understand why he was frequently missing shifts.  After several months, he opened up and briefly explained the situation, and was visibly distressed when doing so.  That gave her a better understanding of what was going on.

157As time passed, he become more and more anxious, and appeared agitated more frequently.  Some days were more difficult than others.

158Towards the end of his employment at Pawsome Place, she noticed a decline in his mental state.  Physically, he looked tired and worn out, and seemed to lack energy and enthusiasm.  It got to the stage where his fatigue started to impact on his work performance.

159At first, the plaintiff had about two to three rostered shifts a week, but had fewer during COVID; however, in his final months at the salon, he missed a shift a week.  This absence started to affect the day-to-day running of the store and made it more difficult to manage.  In the end, the management changed, and the plaintiff stopped getting shifts.

Su-Anne Harris

160The plaintiff’s mother swore an affidavit in November 2021.

161She described the plaintiff’s active life before Bourke Street and the changes in his personality thereafter.  She did note that growing up, there had been times when the plaintiff had anxiety.  It did not prevent him from doing things, but he was now overcome by anxiety.

162She confirmed that the plaintiff’s mood was particularly low when he was working at the bank and he told her he was experiencing nightmares frequently.  When she asked him what they were about, he told her they were too horrible to express.

163The plaintiff had always loved animals, in particular dogs, and he had since got his own dogs, which she was pleased about because it got him out of the house to walk them.

164Overall, since Bourke Street, there had been a major change in the plaintiff’s personality.  It had been hard for her as his mother to watch as, prior thereto, he was so confident and so driven he would be successful.  He was not afraid to put in the time and effort to get there. 

The Plaintiff’s medical evidence

Treaters

My Clinic St Kilda

165The plaintiff first attended MyClinic in St Kilda on 4 July 2019.  The reason for the visit was “ADHD and general anxiety”.  He was given a certificate, and a letter was written regarding a mental health plan.  Serta was prescribed.

166When seen on 16 July 2019, “anxiety” was the reason for the visit and a medical certificate was given.  A psychological appointment was to be organised. 

167The plaintiff attended on 24 and 27 July 2019 for the flu and was given a medical certificate. 

168On 27 August 2019, he attended with a blocked nose and was given a medical certificate.

169On 10 September 2019, he saw Dr Pooya.  The reason for the visit was anxiety and depression.  The note read:

“Victim of crime – Bourke Street.  Has been referred for counselling in July.  He did not attend it.  Not taking Sertraline anymore.  Some suicidal thought.  No plan.  History of anxiety/depression as a child.  History of OD once before.  K10:39.  consented.  eligible.  history of drug abuse.  No drug for four years as per him.  Lives with gf.”

170CBT and antidepressant use was discussed but the plaintiff was not interested medication at that time.

171Bourke Street was first mentioned to Dr Moon on 20 September 2019.  The reason for that visit was sleep disturbance:

“Saw Bourke S terrorist attack on 2017.  Can[no]t get images out of head.  nightmares most nights.  struggling with tiredness in the day … PMHx – ADHD, previous drug user prior to terrorist attack, sorted life out, new GP, healthy relationship- struggling with guilt for not doing anything during the attack- recurrent images.  started counselling through victim support.  work at bank understand and they are helping.  No drug use lately.”

(sic)

172Sleep disturbance was diagnosed and Temaze was prescribed.

173On 25 September 2019, the reason for attendance was sleep disturbance.  It was noted the plaintiff had still not made contact with counselling yet – “encouraged”.

174On 7 October 2019, he attended again for the flu. 

Dr Michael Moon – MyClinic in Grey Street, St Kilda

175Dr Moon reported in February 2020 that he first saw the plaintiff in relation to mood issues connected to Bourke Street on 20 September 2019.  However, the plaintiff had seen other doctors at the practice in relation to this too.  A mental healthcare plan was previously created. 

176He diagnosed PTSD in direct relation to Bourke Street due to the recurring mental images of the attack, the associated anxiety and a feeling of helplessness and guilt along with sleep disturbance.

177In his February 2020 report, Dr Moon noted mirtazapine, and later, Valdoxan were prescribed.  Medication in combination with psychology had improved the plaintiff’s overall quality of life until January, when anxiety and some insomnia crept back in.  A second antidepressant, Escitalopram, was added.

178At that stage, Dr Moon thought the plaintiff was likely to make a slow and steady recovery.

179In his second report dated 23 April 2021, Dr Moon noted there had been some significant changes in the plaintiff’s lifestyle borne out of sessions from his psychologist.  He had made a significant career change and started completing training and dog grooming.  However, because of a change in management, he had not been given shifts and there had been a lot of added stress.  Also, his mental health had taken a decline over the past few months.  As a result he, had stopped training and dog grooming.

180Injuries related to Bourke Street were PTSD, a condition which lowers mood, disturbs sleep, causes nightmares and anxiety.  Treatment included Valdoxan medication, 50 milligrams at night, as well as regular consultations with psychologist, Richard Hall. 

181Prognostically, Dr Moon thought the plaintiff may show signs of improvement, but not until the completion of the court case.  He then thought there was no realistic capacity for employment and that was likely to continue until after the court case had been completed.

182He had no doubt the impact of the PTSD symptoms would have affected the plaintiff’s study, social and work life.

183In his most recent report of September 2021, Dr Moon noted the impact of Bourke Street had caused sleep disturbance, low mood and anxiety, and nightmares on a daily basis.  This had had an impact on the plaintiff’s working life, ability to study and energy levels through lack of sleep.

184Current treatment was eye movement desensitisation and reprocessing, a form of psychological therapy designed to re-experience the event in the same place in order for the brain to be able to file this away as a memory, as opposed to having flashbacks.

185The plaintiff was taking 50 milligrams of Valdoxan, an antidepressant which aided sleep.  He had recently started Prazosin, a blood pressure medication, which had been shown in studies to reduce the incidence of nightmares.

186The upcoming court case was contributing to the plaintiff’s anxiety.  Dr Moon believed that some of those anxieties would pass after it was finished.  He did not believe the plaintiff’s condition would deteriorate, but in fact improve, if he continued to maintain current treatment processes over time.

187Workwise, it was difficult to see the plaintiff working with the psychological pressure of the upcoming court case currently exacerbating his PTSD.

Dr Richard Hall, psychologist

188The plaintiff was referred to Dr Hall by Justine Bell, victim support worker, Victorian Assistance Program, on 1 October 2019. 

189Dr Hall’s initial diagnosis was depression, anxiety, stress, PTSD, sleep difficulties, and ADHD from childhood, triggering of issues from his childhood years.  The plaintiff was assessed in an extremely severe rating for depression and anxiety, and stress was severe.

190The plaintiff was managing his life well up until Bourke Street, with a stable job and a girlfriend with whom he lived.  The PTSD, depression, anxiety and stress had all occurred due to Bourke Street.  He had had issues before this tragic event, yet they were under control.  He was frightened to seek counselling because he was worried about what might surface psychologically from his past.  It had been two years later that he had asked for psychological assistance.

191Bourke Street had triggered, and made more serious, underlying mental health issues due to growing up in a very disturbed, dysfunctional family.  Dr Hall thought there was a direct link between the presenting symptoms and the act of violence, which led to an application to the TAC and VOCAT.

192The plaintiff’s pre-existing depression had become worse, and even though he was frightened to seek assistance, he had come to counselling to work through issues.

193The plaintiff sought treatment two years after Bourke Street due to him realising his mental health was getting worse.  He had been frightened to seek treatment over the two-year period because he was frightened that major issues from his childhood might be raised, which were disturbing and unsettling, yet he realised that, left untreated, the issues would become worse.

194In January and early February 2020, medication was not working and was making the plaintiff feel worse, leading him to be unable to concentrate and manage his stress levels at work.  Over a ten-day period, he went to work some days, then had to leave and go home, and other days he did not attend the call centre.

195The plaintiff felt he was being micro-managed, which had the effect of disabling him rather than empowering him in relation to his work functions.  Consequently, he was  sacked and immediately he felt relief and his anxiety reduced, and he came off the extra medication and felt a lot better.

196As at March 2020, after nine sessions of counselling, there were signs of improvement.  The plaintiff psychologically warmed up to a coping system of survival from the events of Bourke Street. 

197Dr Hall reported again in May 2021.  To the plaintiff’s surprise, counselling had been a lifeline for him.  His condition was stable, yet over the most recent several months in 2021, his condition had deteriorated with a limited capacity to manage stress.

198Dr Hall then thought the plaintiff was partially incapacitated for work, and recovery was slow and step by step.

199The plaintiff played video games, was learning the piano and listening to music.  He still was not able to go out in public and be in big crowds, and he would not visit the city.

200As at October 2021, Dr Hall thought the plaintiff’s depression and anxiety was still extremely severe, and his stress level was mild.  His stress symptoms had reduced to a mild level over the previous six months.

201In July 2022, Dr Hall noted the plaintiff’s depression, anxiety and stress profile scores indicated extremely severe levels.  The plaintiff’s PTSD was in the very high range of 76.

202It was his sense that over the next three months, the plaintiff’s condition would  stabilise, and that his psychological health would improve.  If not, he would need to consider psychiatric assistance for his mental health condition which may include hospitalisation.  Dr Hall had encouraged the plaintiff to seek out a referral to a psychiatrist to assist with his serious depression, PTSD and sleep.

203The plaintiff’s prognosis was poor due to the setback of becoming homeless interstate and having poor finances to cope with his life and its great challenges.  He had in effect stopped looking after himself physically and his psychological condition had deteriorated.  Dr Hall hoped that in the next six months, the plaintiff’s condition could be turned around.

Medico-legal

Dr Weissman, psychiatrist

204Dr Weissman first saw the plaintiff in March 2020.  The plaintiff told him he still had vivid memories and flashbacks of Bourke Street and the scene thereafter, as well as nightmares that resurfaced.  He advised he was suffering from anxiety.

205The plaintiff told Dr Weissman that immediately after Bourke Street, he started feeling uneasy about things.  He did not want to go to the city, but had to return to work there.  Immediately after Bourke Street, he had frequent intrusive thoughts, images and flashbacks of the incident.  However, he told Dr Weissman he did not have bad dreams and nightmares to begin with.  His bad dreams and nightmares started about one or two months later.

206The plaintiff told Dr Weissman of his subsequent job history and that he was not able to concentrate on his work at ANZ due to his psychiatric symptoms.  He was having lots of days off work and ANZ let him go.  He had started dog washing about two weeks earlier.

207The plaintiff advised each time he started a new job, his nightmares became more frequent and intense, and he started to become more emotionally distressed and socially withdrawn.  He had ongoing cognitive dysfunction.

208Before he started seeing his psychologist, he was feeling very tired all the time and feeling like a zombie.  At that time, he experienced a lot of suicidal thoughts.  He felt frustrated and irritable.  He had sleep disturbance with both initial and middle insomnia.

209On mental state examination, the quality of the plaintiff’s affect was traumatised, flat, subdued and restricted in range, sad and depressed, anxious and worried.  Thought stream was normal. 

210The content of his thinking revealed frequent intrusive and emotionally distressing thoughts, memories, recollections, flashbacks, triggers and reminders of Bourke Street.  That was associated with ongoing moderate, classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features directly related to Bourke Street.  That was complicated by significant generalised anxiety, as well as moderate depressed mood. 

211The plaintiff reported intermittent passive suicidal ideation, but no current active suicidal plan.  There were no formal abnormalities of perception.  He still had bad dreams and nightmares about Bourke Street occurring three or four nights a week.  He had various examples of related anxiety, nervousness, hypervigilance and hyperarousal, with various triggers and reminders of Bourke Street.  He had an elevated startle response. His insight and judgment were characterised by significantly lowered self-esteem and confidence.

212Dr Weissman thought Bourke Street was, and still is, very emotionally distressing, traumatic, tragic and arguably catastrophic for the plaintiff.

213The plaintiff had a disturbed and disrupted developmental history and childhood, together with Attention Deficit Disorder.  There was most probably a past history of recurrent depression.

214There had been a past history of significant polysubstance abuse, including a lot of marijuana, a lot of MDMA, and two weeks of ice abuse when he was twenty-one or twenty-two; however, at the current time, the plaintiff was subjectively reportedly not abusing any illicit recreational drugs.

215Immediately following Bourke Street, the plaintiff developed an acute Stress Disorder and acute Adjustment Disorder.  The acute Stress Disorder quickly evolved into a chronic PTSD, from which he still suffered.  At times, his PTSD symptoms and features, incapacity for work, social withdrawal, depression, agitation and suicidal ideation, had been much more intense. 

·        Flashback visions of the Asian male on the ground. 

·        Feeling startled and jumpy with loud noises. 

·        A general feeling of unease. 

·        Bad dreams about the incident three or four nights a week. 

·        Lack of energy and motivation and care for personal hygiene. 

216Presently, the plaintiff was still suffering from at least moderate classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features.  Overall, given the nature, severity and extent and chronicity of his generalised anxiety and depressive symptoms, he had also sustained and developed at least a Chronic Adjustment Disorder with Anxious and Depressed Mood.  However, the Chronic Adjustment Disorder diagnosis was probably superfluous in this case.

217On purely psychiatric grounds, the plaintiff was incapacitated for full-time work and only had a partial capacity for suitable duties.  His psychiatric prognosis was then quite uncertain and guarded.

218On re-examination in June 2021, the plaintiff reported experiencing two or three bad dreams or nightmares a week, and sometimes, less frequent bad dreams, but sometimes a lot more.  He thought about Bourke Street multiple times a day.  He described his sleep as up and down, sometimes great and sometimes the worst.

219Dr Weissman diagnosed chronic PTSD of at least moderate intensity, with comorbid depression and generalised anxiety.  He thought, on purely psychiatric grounds, the plaintiff was totally psychiatrically incapacitated for all work.  The prognosis then was quite uncertain and guarded.

220Dr Weissman provided a further report in July 2021, having received the plaintiff’s affidavit and Professor Doherty’s February 2021 report.

221Dr Weissman commented that the condition of delayed onset PTSD is well known and probably accounted for roughly a quarter of all PTSD cases; however, this particular case was not necessarily a case of delayed onset.

222He noted the plaintiff did not present to his general practitioner complaining of symptoms until July 2019, roughly two-and-a-half years after Bourke Street.  However, based on all the information, that is not when the plaintiff first started experiencing and suffering from his Bourke Street related symptoms, noting that people often present to their general practitioner much later with conditions like PTSD.

223The plaintiff’s partner’s affidavit confirmed the plaintiff commenced suffering from PTSD symptoms very soon after Bourke Street.

224Dr Weissman’s two assessments of the plaintiff, combined with that affidavit, confirmed that the plaintiff’s PTSD symptoms had remained unabated, unremitted and unresolved since their onset.  He asked the plaintiff open-ended questions- followed by direct symptom review questions that captured all of his PTSD symptoms, clearly satisfying the diagnosis.

225Dr Weissman thought the content of the current psychiatric complaint section of Professor Doherty’s report was arguably insufficient and inadequate to capture a diagnosis of PTSD.  It did not include a full symptom review which may potentially capture such a diagnosis.

226While the plaintiff had pre-existing and unrelated psychiatric symptoms and impairment, he had new significant psychiatric conditions and mental injuries related to Bourke Street that continued to lead to a significant loss of quality of life. 

227Dr Weissman did not agree with Professor Doherty’s comments regarding the reason for the plaintiff’s need for psychological treatment and psychiatric diagnosis.  He did not consider there was a relevant inconsistency between the plaintiff’s reported symptoms and the reported long delay in seeking help.

228Dr Weissman was provided with Professor Taylor’s psychiatric reports and a number of other documents.

229In his view, the plaintiff was a credible historian and witness, and a person of credit.

230Dr Weissman noted with interest Professor Taylor’s comments that he could not explain why he had arrived at such a different formulation to him and also to Professor Doherty.  He accepted, however, that they all seemed to agree that there were not insignificant pre-existing psychological and psychiatric problems.

231However, from his perspective, he thought that he could explain why he arrived at a different diagnostic formulation and opinion to Professor Taylor.  It was possibly because his interview and report did not capture the plaintiff’s Bourke Street related psychiatric symptoms that would in turn potentially enable the Bourke Street related psychiatric conditions and mental injury in this case to be diagnosed.  He was not  sure whether or not that related to the comments the plaintiff made in his October 2021 affidavit (regarding his examination with Professor Taylor) .

232Regardless of the plaintiff’s pre-existing, pre-morbid problems and difficulties, Dr Weissman still thought he would not be now suffering from at least a moderate group of Bourke Street related psychiatric conditions and mental injuries but for that event.

233From his perspective, there may be potentially a marginal improvement in the plaintiff’s overall psychiatric state upon resolution of the claim; however, it would not be significant or substantial.  The plaintiff would remain vulnerable, prone to stress and being overwhelmed, and remain totally psychiatrically incapacitated for all work.  There was a possibility he may be able to return to relatively low level, low pressure and low stress work duties at some time in the medium to long-term future.

234On re-examination on Skype in June 2022, the plaintiff advised, from his perspective, his psychiatric, psychological and emotional state had declined since the last examination.

235From a professional perspective, Dr Weissman thought the plaintiff’s PTSD symptoms and traumatisation features, and his depression, were by and large much the same as the last examination.  However, he thought the plaintiff had become more socially withdrawn and agoraphobic, more reliant and dependent on his partner, slightly more deflated and filled with slightly more guilt, shame and embarrassment.  These were genuine symptoms and features.

236The plaintiff continued to suffer from genuine daily, moderate, ongoing, chronic, classical and discernible chronic post-traumatic stress and anxiety symptoms and traumatisation features, directly due to Bourke Street.

237Dr Weissman believed the symptoms satisfied the criteria for chronic PTSD.  The symptoms were clinically significant, troublesome, and negatively and detrimentally impacted on the plaintiff’s quality of life.  Further, he was also suffering from moderate, comorbid depressive syndrome, with a fairly pervasive persistent and sustained depressed lowered mood.  His condition was a chronic PTSD with comorbid associated depression.

238He genuinely believed that the nature, extent, severity and chronicity of the plaintiff’s Bourke Street related psychiatric symptoms would totally incapacitate him for all work at for at least the foreseeable future.

239Dr Weissman thought the plaintiff’s psychiatric prognosis for the future was quite, if not very, uncertain and guarded.  There would need to be a very significant and substantial improvement in his psychiatric, psychological, emotional and behavioural state before one would consider he had regained some sort of partial capacity.

Professor Taylor

240Professor Taylor emailed the TAC in January 2022, having been provided with a transcript of the interview recorded by the plaintiff of their examination without his permission.

241Professor Taylor advised one of the main issues in this case is the timeline.  For classic PTSD, there has to be a temporal relationship between the index incident and trauma symptoms.  To develop sudden trauma symptoms two to two-and-a-half years later does not make clinical sense.  The plaintiff’s expert chose to get around this by saying there was an acute stress disorder, followed by chronic PTSD – “fyi, an acute stress disorder lasts for weeks at most and is qualitatively very different to PTSD.  There is no such thing as ‘late onset PTSD’.”

242Professor Taylor noted the plaintiff had a pleasurable, long vacation travelling around Russia in 2019, but said he had trouble leaving the house.

243Professor Taylor also wrote “forgive my rant but it’s worth bearing in mind that Harris is invested in the PTS diagnosis, eg his DSP application – a lifetime of tax-free dollars”.

The Defendant’s medical evidence

244The clinical notes from Gap Road, Sunbury, detailed treatment from 10 November 2015 until April 2018.

245On 18 November 2015, Dr Baselyous wrote to Dr Tipirneni, psychiatrist, thanking him for seeing a new patient, who said that he was diagnosed with ADHD while he was a child, and recently he was experiencing anxiety symptoms. 

246The plaintiff attended Gap Road three times during 2016 for a sore throat or blocked ears.  He was next seen on 9 February 2017, the issues being dizziness, ears and back.  There was also a note of a history of panic attacks and that the plaintiff “probably needs further mental health assessment”.  He was then drinking “3 times a week – usually 8‑9 pints.  No regular drug use – intermittent party drug use.”

247On the 6 September and 1 November 2017 attendances, the plaintiff obtained a medical certificate for a URTI.  When next seen on 18 April 2018, the reason for contact was “reflux – gastro-oesophageal”.  He was given a medical certificate.  Ten days later, he attended to review the pathology report in relation to gastric issues.  It was noted all was good.

248Notes from Diggers Rest Medical Centre detailed treatment from 14 March 2018 to May 2020.

249On the first visit, the plaintiff was noted to have attended for a check-up and a medical certificate, having taken his mother’s medication for ADHD and “getting sick”.  The reason for the visit was hay fever and ADHD.

250The plaintiff presented on 27 March 2018 with a sore throat and having difficulty swallowing.  He was found to have a red infected throat and given a certificate and Rulide was prescribed.

251There were a number of attendances later in 2018.  On 21 April 2018, the plaintiff attended for a review.  He had some memory issues and stress.  On 9 May 2018, he attended with blocked ears.  They were syringed, and he was given a medical certificate.  On 31 July 2018, he presented with recurrent migraine and needed some painkiller and a medical certificate.  On 30 August 2018, he presented with a sore throat and difficulties swallowing.  A medical certificate was given.  On 4 September 2018, he presented with cold symptoms and a cough, and a certificate was given.

252On 22 February 2019, he attended for dental pain, as was the case on 15 March 2019, when there was also a note of three weeks of chest pain. 

253On 4 May 2020, he had a Telehealth consultation with Dr Botros.  In terms of management, it was noted there was “counselling and chat re patient’s issues and concerns.  Chris was advised by me that we can’t do a medical report as we have no information about the MVA in 2017”.

Eastern Health

254On 7 November 2011, the plaintiff attended Emergency.  The discharge diagnosis was chest pain.  It was noted on Sunday, the patient had cleaned out his bong with bleach and then smoked pot which was new for him.  Shallow breaths followed.

255There was a clinical risk screening and ongoing assessment on 4 August 2014 and Karen Gough carried out a clinical review. 

256On 17 September 2014, the plaintiff again saw Karen Gough.  It was noted he had been seen twice there, the first time appearing in crisis.  When first seen, he reported chronic suicidal ideation with a history of one suicide attempt in March 2013 where he took an unknown quantity of Panadol, blood-pressure medication, and other tablets, after he felt his then-girlfriend did not care for him.  He posted a “goodbye” status on Facebook, which was seen by his brother, who alerted the family.  That document also set out a history of the plaintiff’s abuse of various substances.

257There was a note of a mental health episode on 1 October 2014 and clinical risk screening and ongoing assessment was undertaken. 

The Defendant’s medico-legal evidence

Professor Doherty, psychiatrist

258Professor Doherty saw the plaintiff on behalf of the defendant on 26 November 2020 on Zoom.  In terms of previous psychiatric history, the plaintiff told him he had  ADHD as a young child.

259Soon after Bourke Street, the plaintiff worked in a call centre because his life had changed quite a lot, as he was once sociable and loved interacting.  After Bourke Street, he did not want to do anything for quite a time.  He was again fundraising, working for ANZ and then doing dog grooming.  He said he was very good at sales before Bourke Street and that he thought he was going to the top.

260In terms of seeking treatment, the plaintiff was working with a co-worker named Taylor.  She talked to him about her breakdown and said that VOCAT got her to see a counsellor.  The plaintiff told her he was having nightmares and he too wondered if he should contact VOCAT.  He did and he was referred to psychologist, Richard Hall, and to a lawyer.

261The plaintiff explained the delay in starting treatment was because he did not want to talk about Bourke Street for a long time or tell anyone what happened.  He said that after he had to pay rent and had more responsibility, he needed to fix the problem.

262Professor Doherty noted that before Bourke Street, the plaintiff had a longstanding mood problem with some anxiety and depressive symptoms and long-term suicidal ideation.  He thought the plaintiff presented as a shy, introverted, anxious young man who reported some symptoms of traumatisation.

263He gave consideration as to whether or not there was a PTSD condition present, and thought there was not.  Simply put, there was no evidence of the symptoms of PTSD before September 2019 and then the plaintiff reported a full array of symptoms of traumatisation.  Professor Doherty was not convinced those symptoms of traumatisation were there before September 2019.

264The plaintiff told Professor Doherty that he would have gruesome nightmares involving Bourke Street, which he described as “gross stuff”.  His mood since Bourke Street had been here and there. 

265Professor Doherty thought the plaintiff was a person with significant psychological difficulties and had generally benefited by having psychological treatment.  The plaintiff attributed his need for psychological treatment to the effects of Bourke Street, but that attribution was misplaced.  At most, Bourke Street had caused an aggravation of pre-existing psychological issues that present themselves as mood symptoms.

266If a diagnosis needed to be made, at most a diagnosis of an Adjustment Disorder was appropriate.  It was underpinned by the psychological issues, personality factors, previous difficulties in maintaining employment, difficulties in deciding on a career path and maintaining interpersonal relationships.  There was no Major Depressive Disorder present.

267In his opinion, the prognosis was generally favourable.  The plaintiff’s psychiatric symptoms were mild in severity.  There was no delayed expression of traumatisation problems.  There was no evidence that the plaintiff had symptoms of traumatisation after Bourke Street up until he spoke to another person, compared symptoms, and was informed about VOCAT compensation and funding for psychological treatment.

268The diagnosis was an Adjustment Disorder with some features of traumatisation.

269At that stage, the plaintiff was working two days a week which Professor Doherty thought could be increased in hours.[81]

[81]        As at November 2020

270On Zoom re-examination in May 2022, Professor Doherty had available reports from Dr Weissman and also Professor Taylor.  In his opinion, there was continuation of the pre-existing psychological vulnerability, personality factors and mood symptoms that were present before Bourke Street, and continued thereafter with a September 2019 deterioration in the plaintiff’s mental health unrelated to Bourke Street.

271He thought there was no hard or objective evidence of a significant psychological reaction or features of traumatisation immediately following or shortly after Bourke Street.  He disagreed with Dr Weissman, who suggested up to a quarter of presentations of PTSD are delayed.  The delayed onset of PTSD was particularly uncommon.  A little more common was delayed expression of the full criteria to make the diagnosis using recognised criteria.  In those circumstances of delayed expression, the full clinical criteria to make the diagnosis in DSM‑5 was not met for some six months after the  traumatic event.  However, in circumstances where there was delayed expression of PTSD, there will be typical symptoms of traumatisation appearing immediately after the subject traumatic incident.

272Professor Doherty confirmed at most there was an Adjustment Disorder and no diagnosable PTSD.

273The plaintiff’s clinical presentation was of a person with personal significant psychological problems clearly evident before Bourke Street and evident thereafter.  He had significant mood and anxiety laden symptoms, was socially avoidant, now socially isolated with an ongoing paucity of social and personal networks.

274The prognosis was favourable when he saw the plaintiff in February 2021.  The plaintiff was now out of work and in rural New South Wales where the opportunity for work was negligible.  He was isolated and decided to put himself in that position himself.  He was making no particular progress psychologically or socially.  The likelihood of satisfactory personal and social adjustment with the usual community-based activities was low, thus the forecast for individual outcomes should be considered guarded.

275The plaintiff continues to present as an anxious, unsure, insecure and vulnerable person who is socially isolated.  Such symptoms and issues were present before Bourke Street and are clearly present now.  The plaintiff complains of some symptoms of traumatisation, colouring the current array of anxiety and mood symptoms and consequential social impairments.  The cause of his symptoms are constitutional, hereditary and environmental, and were present prior to Bourke Street and continue.  They are now worsening, as he has taken himself away from employment and resides in New South Wales,

276There was no significant psychiatric injury sustained in Bourke Street.  There was a continuation and worsening of the plaintiff’s psychological and social problems, which were present before and continue thereafter.

277Bourke Street related psychiatric problems do not appear significant or much interfere with the plaintiff’s capacity for work, having worked until a year or two ago.  The limitation on his capacity for work is now due to the continuation of his pre‑existing psychological and psychiatric problems, and is worsened by his current social situation.

Professor Andrew Taylor, psychiatrist

278Professor Taylor examined the plaintiff on 30 August 2021 on Zoom.  He had available numerous reports from Richard Hall, and also excerpts of medical records from the plaintiff’s general practitioners.

279Having noted the plaintiff’s description of Bourke Street, the plaintiff told him Bourke Street did not affect him initially and he continued to work very hard as a fundraiser and later at the ANZ.  However, in late 2019, he started consulting psychologist, Richard Hall, via the Victims of Crime because he said his sleep had been disrupted and he was getting regular nightmares.

Current situation

280Professor Taylor noted sleep was currently normal, with some eight or nine hours a night when the plaintiff used Valdoxan medication.  He had occasional nightmares, perhaps every week or two.  He last had a nightmare a week earlier but that was not related to Bourke Street

281The plaintiff reported his concentration was normal and his memory was very poor.  Sexual energy was diminished, reportedly.  He said generally, his mood was down because he was tired and he was not sure why.  Anxiety was still present, and he worried about his health.  He attributed memory problems and restlessness to ADHD.

282The plaintiff completed psychological testing which indicated, by his own report, he had a mild level of clinically significant anxiety.  Testing did not meet the diagnostic criteria for depressive illness currently, nor did it meet diagnostic criteria for PTSD, but the plaintiff had some trauma-related symptomatology, including flashbacks or re‑experiencing and nightmares within the last week; hypervigilance, and occasional irritable or disturbed mood.

Lifestyle

283The plaintiff said he spent between six and eight hours a day doing digital drawing and painting, and could concentrate well on his work and enjoy it.  He liked training and exercising his dogs.

284The plaintiff told Professor Taylor he had had an enjoyable holiday to Russia in late 2019.  He liked music and had a bass guitar and keyboards, but only played for one hour a week.

285The plaintiff said he could undertake all activities of daily living.  He goes fishing once a week and spends time with his two main friends via Snapchat.  He only drinks alcohol three times a year, and denied ever being a heavy drinker.  He vaped all the time.  He last used cannabis in 2016.  His favourite street drug was MDMA, which he used for nine months regularly until 2016.

286During the Zoom examination, the plaintiff was constantly vaping.  In the background there was a keyboard, a bed and a guitar.

287The plaintiff tolerated a 70‑minute assessment without obvious distress or difficulty.  His manner was animated, and he appeared cheerful and could respond to humour.  He did not appear clinically anxious, nor was he hypervigilant or over-aroused.  There were no signs of other significant mental illness such as psychosis elicited.  He was fully orientated in time, place and person, and his autobiographical recall appeared normal, along with his short-term recall.  His concentration span was also objectively normal.

288Professor Taylor noted relevant pre-Bourke Street psychiatric clinical records and Mr Hall’s reports.

289Objectively, in his professional opinion, the plaintiff did not meet the diagnostic criteria for any mental disorder.  He did not appear clinically depressed or anxious, and there were no objective signs of PTSD.  He reported preserved activities of daily living and recreational pursuits, such as doing his painting and drawing for between six and eight hours a day without difficulty.

290There was no current diagnosis.  Relevant pre-existing conditions were cluster B type personality and fear of abandonment due to early life experiences.

291On balance, it was possible in retrospect that the plaintiff suffered an Adjustment Disorder with Anxiety, but for this to present itself two years after witnessing Bourke Street would be highly unusual.

292There is no current psychological condition.  The prognosis is good, and the plaintiff should continue on his current medication.  The injuries as a result of Bourke Street do not interfere in any way with his ability to work.

293Professor Taylor provided a supplementary report in October 2021, having been given Professor Doherty’s report.  He noted the latter was not dissimilar in conclusions to his own.  He had been perhaps more optimistic than Professor Doherty about the current situation given the reported high-level functioning that the plaintiff presented during his examination.

294He could not explain why Dr Weissman arrived at such a different formulation of the case to himself and Professor Doherty.  All experts would agree there were significant pre-existing psychological and psychiatric problems.  Disagreement exists, however, between Dr Weissman and the other two experts concerning diagnosis and prognosis and overall level of impairment.  He could see no reason to alter his original opinion.

295Professor Taylor provided a supplementary report, having been provided with Dr Hall’s October 2021 report.  Although there was a disparity in his opinions and those of Mr Hall, Professor Taylor was not minded to alter his views and formulation of the case.

296For example Mr Hall has provided numerous sessions of therapy over two to three years, and appeared pessimistic in prognosis, including progress and treatment, yet he made no mention of the Russian holiday.

297He noted the plaintiff himself is keen to work, and says he can walk his dogs outside as well as paint and draw for six to eight hours a day.

298Mr Hall said the plaintiff could not work now, but interestingly, will be able to work in 2022, giving no reason for the shift in work capacity.

299He noted Mr Hall is a psycho-dramatist, and not medically trained, even though he makes various medical diagnoses.

300Professor Taylor provided a further supplementary report in February 2022, having recently been made aware that the plaintiff covertly undertook a recording of the examination on Telehealth in August 2021.  He was also given the plaintiff’s October 2021 affidavit and Dr Weissman’s November 2021 report.

301For the purposes of this report he reviewed the covert video recording.

302He confirmed there is not a categorical difference between Dr Weissman, himself, and Professor Doherty, but more of severity.  All agreed that it would appear the plaintiff had psychological and psychiatric problems before Bourke Street, and then had them after.

303Professor Taylor thought the plaintiff was predisposed to the development of a psychological condition after witnessing Bourke Street, which he had deemed to be an Adjustment Disorder, as had Professor Doherty.

304In the video recording of the examination of the plaintiff, they both agreed at the end of the assessment the plaintiff had improved with treatment over the last year.  That was consistent with Mr Hall’s opinion that work capacity was improving and in 2022, the plaintiff should regain full capacity for work.

305Lastly, he raised the question of delayed onset PTSD.  He attached relevant scientific papers which, in summary, state that there can be memory inflation and underlying personality vulnerabilities that play a part in the role of any delayed onset PTSD, but it is a rare or unusual problem, and certainly not widely seen in clinical practice.  As the Court may be aware, classical PTSD has a strict temporal relationship with the index traumatic event and then subsequent development or pathology.

306In his clinical opinion, the larger reason for a difference of perspective in this case is that Dr Weissman had relied heavily on the subjective account of the plaintiff himself, not having undertaken any psychological testing.

307He had accepted there was an Adjustment Disorder with features of traumatisation which did not achieve the diagnosis of PTSD.  Thus, the difference in opinion between Professor Doherty and himself compared to Dr Weissman may be simply down to a perception of clinical severity difference.  Certainly, in his report he acknowledged there were symptoms of traumatisation.  For example the results of screening with the trauma screening questionnaire revealed that five out of the ten salient criteria were considered satisfied.

308While the plaintiff felt the report’s conclusions did not accurately reflect his words, the plaintiff cannot take into account the other elements or level of evidence in the formulation process.

309Arriving at a psychiatric formulation requires a synthesis of the subjective account with the objective presentation by the lens of clinical experience of which he has thirty years.  Also necessary was matching those elements to the material elsewhere such as contemporaneous medical records and structured psychological testing.

310Having done the three psychological tests allowed a structured systematic method of questioning in the diagnostically sensitive symptom areas.  The screening psychological tests aimed to directly map the diagnosis criteria onto the reported symptom profile.

Overview

Credit

311The weight to be attached to the plaintiff’s complaints depends on an assessment of his credibility.[82]

[82]Haden Engineering (2010) 31 VR 1 at paragraph [12] per President Maxwell

312Counsel for the defendant submitted that the plaintiff was an unreliable witness, particularly given his history in regard to alcohol and drug use.  He had not stopped using hard drugs at twenty-one as he claimed, agreeing that he was still using ecstasy in 2016, as Professor Taylor reported. [83]  Further, the clinical records were at odds with his evidence that he had only had a short stint of alcohol abuse.[84] 

[83]        T83

[84]        T84

313It was submitted that the plaintiff’s presentation in the witnessbox was consistent with the observations of Professor Doherty and Professor Taylor, who reported he did not appear depressed, that his presentation was that of a person who seemed unaffected mentally, consistent with the clinical examination.[85]

[85]        T84

314In response, counsel for the plaintiff submitted the plaintiff gave evidence in a straightforward manner and made concessions.  He was not cross-examined about the extent of his current consequences as he deposed to.  His evidence in this regard was corroborated by his partner and mother.[86]

[86]        T96

315It was conceded that the Court had to accept the plaintiff’s subjective account for the application to succeed and that Dr Weissman accepted the plaintiff’s description totally.[87]

[87]        T102

316While initially dubious about the veracity of the plaintiff’s explanation of the reasons for the delay in seeking treatment and his failure to mention any Bourke Street issues[88] when he saw doctors before September 2019, having considered all the evidence, I accept his explanation.

[88]        T97-99

317Not surprisingly, his evidence as to his drug use was unreliable and he conceded he had last used in 2016, not when he was twenty-one as he had earlier maintained. 

318This issue however did not affect my view that overall, the plaintiff was a credible witness whose evidence was corroborated by his partner and mother whose evidence was not challenged. His last employer also confirmed the plaintiff’s difficulties at work in his most recent job.  Her evidence was also unchallenged. 

Pre Bourke Street condition  

319In this case, where there is a pre-existing psychiatric condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from Bourke Street is severe and long term.

320In Petkovski v Galletti,[89] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.  …”

[89] [1994] 1 VR 436

321Dr Hall thought Bourke Street acted as a trigger and made more serious, underlying mental health issues due to the plaintiff growing up in a very disturbed, dysfunctional family.  His pre-existing depression had been made worse.

322Dr Weissman described disturbed and disruptive developmental history in the plaintiff’s childhood, together with Attention Deficit Disorder and most probably a past history of recurrent depression. There had also been a past history of significant polysubstance abuse.

323Professor Doherty thought the situation was a longstanding mood problem with some anxiety and depressive symptoms and some long-term suicidal ideation.  The plaintiff was a person with significant psychological difficulties and had genuinely benefitted by having psychological treatment. He had personal significant psychological problems clearly evident before Bourke Street and thereafter.   He had significant mood and anxiety laden symptoms, was socially avoidant and now socially isolated, with a paucity of social and personal networks.

324Professor Taylor noted all experts would agree there were significant pre-existing psychological and psychiatric problems. 

325It was clear from the Eastern Health records that the plaintiff had very significant mental health issues involving a number of inpatient attendances.  He also had a problem with drug use.

326In those circumstances, his mother’s description of the plaintiff experiencing “anxiety” pre–Bourke Street is somewhat of an understatement.

327Despite this situation, the plaintiff seemed to be functioning relatively well as at the time of Bourke Street.  He had obtained what appears to be full-time work with Ignite in September 2016, working without incident or the need for treatment.  He earnt reasonable money in that role.  He was in a stable relationship with Marina, enjoying range of activities, and was very social, as she confirmed in her affidavit, which was not challenged.[90] 

[90]        T94

328I accept this situation changed significantly, albeit gradually, after he witnessed the horrific scenes at Bourke Street. 

What is the current diagnosis?  

329Psychologist, Dr Hall, continues to treated the plaintiff for depression and anxiety and PTSD.  His GP, Dr Moon, diagnosed PTSD.

330On the most recent Skype examination in June 2022, Dr Weissman believed the plaintiff’s symptoms satisfied the criteria of the chronic PTSD with comorbid associated depression.

331On his first examination in November 2020, Professor Doherty thought, that, at most, there was a diagnosis of an Adjustment Disorder with some features of traumatisation, underpinned by psychological issues, personality factors, previous difficulties maintaining employment, difficulties in deciding on a career path and maintaining interpersonal relationships.  He thought there was no Major Depressive Disorder present.  He thought the psychiatric problems were mild in severity and there was no evidence that the plaintiff had symptoms of traumatisation until he spoke to Professor Taylor. 

332On re-examination in May 2022, Professor Doherty confirmed his earlier diagnosis and thought there was no diagnosable PTSD.  He thought that the plaintiff’s attribution of psychological treatment to the effects of Bourke Street was misplaced.[91]

[91]        T86

333In August 2021, Professor Taylor thought the plaintiff did not meet the diagnostic criteria for any mental disorder.  He did not appear clinically depressed or anxious, and there were no objective signs of PTSD.  It was possible, in retrospect, he had suffered an Adjustment Disorder with Anxiety, but for it to present itself two years after Bourke Street would be highly unusual.  There was no current psychological condition, and the prognosis was good.

334Essentially, Professor Taylor thought that if there were no complaints in the two-and-a-half years, what happens later cannot be related to Bourke Street.  He concluded that the plaintiff had suffered an aggravation of his pre-existing psychological issues as to his mood symptoms.[92] 

[92]        T86

335These diagnoses are, to a large extent, based on the examiner’s view as to the date of symptom onset, the plaintiff’s explanation for the delay in seeking treatment after Bourke Street and an acceptance or otherwise of his current complaints. 

336Professor Taylor thought the difference between himself and Professor Doherty and Dr Weissman may simply be down to a perception of clinical severity difference, acknowledging that he had found 5 out of 10 salient criteria with the Trauma Screening Questionnaire.

337The thrust of the defendant’s medico-legal evidence – Professor Taylor and Professor Doherty – was that any current psychiatric problems are not related to Bourke Street, as there was a delay in onset of symptoms and the plaintiff did not seek treatment until over two years after the event.[93]

[93]        T83

338However, Dr Weissman accepted an early onset of symptoms, although no treatment was sought until September 2019.   

Onset of symptoms/delay in treatment  

339Counsel for the defendant submitted the records of Gap Road and Diggers Rest were significant for the absence of any complaint related to Bourke Street despite numerous attendances for other matters.  There was no psychiatric treatment until September 2019, and that followed the VOCAT intervention where the plaintiff had spoken to “Taylor”.  It was not until then that the plaintiff decided he had symptoms worthy of treatment, 

340It was submitted the plaintiff’s explanation why he did not get treatment earlier because he had difficulty discussing mental health issue “just doesn’t cut it”, as he had had treatment in the past and also had had an ongoing relationship with doctors at other clinics.[94]

[94]        T85

341The plaintiff’s work history after Bourke Street was also relied upon as exhibiting a level of functioning inconsistent with ongoing PTSD.

342It was submitted the plaintiff’s work record after Bourke Street was really no different to that before.[95]  He had a day off after Bourke Street and continued to work right up until July 2018, as his Facebook confirmed.  He was functioning as well as he had in the past, being able to work in Sydney and Melbourne.[96]

[95]        T89

[96]        T84

343Further, Professor Doherty concluded Bourke Street had not contributed to any incapacity for work.[97]  There could be no possible contribution by Bourke Street because the plaintiff has gone back to work and he had gone overseas.  His lifestyle afterwards acted against Bourke Street involvement being significant.  He has problems disconnected to Bourke Street which continue to plague him, and it is not until someone tells him about VOCAT that he suddenly manifested symptoms which required treatment. 

[97]        T87

344While the plaintiff did not seek treatment until two-and-a-half years after Bourke Street, Dr Weissman accepted the onset of symptoms was soon thereafter, with the plaintiff reporting immediately thereafter, he started feeling uneasy about things.  He did not want to go to the city, but had to return to work there.  Immediately after Bourke Street, he had frequent intrusive thoughts, images and flashbacks of the incident.  He did not have bad dreams and nightmares to begin with.  His bad dreams and nightmares started about one or two months later.

345The plaintiff confirmed it was correct, as Dr Weissman recorded, that “at the start” he did not have bad dreams and nightmares.  They began very infrequently, so he could not recall too much when it all started.  He knew it started getting really bad in late 2018.  2019 was when he definitely noticed there was something “horribly, horribly wrong”.[98]

[98]T38

346In my view, this evidence about the frequent intrusive thoughts and later nightmares, suggests they were clearly closely related to the horrific scenes the plaintiff had witnessed at Bourke Street. 

347I accept the nightmares and inability to sleep caused the subsequent slow decline in the plaintiff’s ability to function properly at work, and otherwise, during the day.[99]

[99]        T107

348It is not correct, as Professor Doherty stated, that there was no evidence that the plaintiff had symptoms of traumatisation until he spoke to “Taylor”. 

349While the plaintiff was able to continue working with Ignite after Bourke Street, he did have problems on an increasing basis with sleep, which he attributed to nightmares about Bourke Street, as he reported to Dr Weissman.

350The plaintiff tried his best to cope at work, as he described, he was keen to continue in the workforce given his earlier poor work history. However, he became increasingly stressed and sleep deprived, particularly from the time he worked at Red Energy.

351There was not an immediate decline, but a gradual decline in functioning subsequent to Bourke Street.[100] 

[100]      T95

352By the time he worked at ANZ, the plaintiff could no longer cope, as Marina confirmed.  He sought help after speaking to a co-worker Taylor and was then referred to VOCAT and later referred for treatment for his mental health issues.[101]

[101]      T108

353I accept the plaintiff’s explanation that he did not seek treatment earlier because he found it difficult to speak about his mental health, and he used work as a coping mechanism until his performance at work at ANZ declined.[102]  He was not consistent enough at ANZ, and his job performance deteriorated.[103]  He did contact someone at ANZ because he thought he needed help at that time.[104]  He lost his job at ANZ and then started getting treatment.[105]

[102]      T94

[103]      T104

[104]      T100

[105]      T99

354The plaintiff’s experience with the mental health system before Bourke Street also explains his reluctance to engage in it afterwards, particularly given the significant nature of his condition requiring inpatient admissions at various times before Bourke Street.  He finally sought treatment two years after Bourke Street due to him realising his mental health was getting worse.

355While there was no specific mention of Bourke Street to his general practitioner until September 2019, the plaintiff had presented at his GP in Diggers Rest in April 2018 for mental health issues.  He explained this visit related to his problems sleeping at that time.  He did not want to mention Bourke Street then as his mother was with him at the examination.

356While the issue was mentioned in passing, it was not put directly to the plaintiff that he had made up his symptoms or exaggerated them because he became aware that there was compensation available, having spoken to Professor Taylor.  His evidence was, and he was quite candid, that he became aware that that might be a means for him to get treatment and pay for it.  Until then, his evidence tended to suggest he had tried to push on and carry on as best he could, and put on a brave face.[106]

[106]      T96

357I am not troubled that it was not until he found out about VOCAT that the plaintiff sought treatment.  I accept his explanation about being frightened to seek counselling because he was worried about what might surface psychologically from his past, as Mr Hall described.

358I do not accept, as counsel for the defendant submitted, that the plaintiff has problems disconnected to Bourke Street which continue to plague him, and it is not until someone tells him about VOCAT that he suddenly manifested symptoms which required treatment.[107]

[107]      T89

359I accept the plaintiff had PTSD symptoms for some time before he sought treatment. Marina confirmed nightmares starting a couple of months after Bourke Street, affecting his ability to go to work.  I also accept his explanation for the delay in seeking treatment.  It was not the case that when he saw an opportunity to get compensation, symptoms manifested themselves.

360Given my acceptance of the plaintiff’s evidence of the early onset of symptoms and his explanation for the delay, I prefer Dr Weissman’s diagnosis and his views as to the resultant consequences. 

361In any event, as counsel for the plaintiff submitted, while Professor Taylor and Professor Doherty thought delay was unusual in PTSD, they do accept a possibility of the diagnosis.[108]

[108]      T96

362While finding at most an Adjustment Disorder, Professor Doherty’s views were largely based on his concern at the delay and the fact the plaintiff continued working until 2019, two years after Bourke Street.  I do not share these concerns, taking into account all the evidence. 

363Further, as Dr Weissman commented, Professor Doherty’s report did not include a full symptom review which may potentially capture a diagnosis of PTSD.

364Professor Taylor is an outlier in his view that the plaintiff does not have a diagnosable psychiatric condition, although he did concede there were symptoms of traumatisation.

365The history of the plaintiff’s problems in his report was very brief and did not contain any of the detail recorded by Dr Weissman or even Professor Doherty, as to the level of the plaintiff’s symptomatology.

366While Professor Taylor was understandably upset that his examination of the plaintiff was filmed without his consent, his comments in his email to the TAC –  “forgive my rant but it’s worth bearing in mind that Harris is invested in the PTSD diagnosis, eg his DSP application – a lifetime of tax free dollars” – raise concern as to his impartiality and compliance with the Expert Witness Code of Conduct. 

367The transcript of this examination was not in the form of Professor Taylor’s report and was much more conversational. While not surprisingly the report does not contain all the matters that have been transcribed, there were significant omissions and inaccuracies in Professor Taylor’s report.

368Professor Taylor did not include in his report, when discussing how frequently the plaintiff walked his dogs, that the plaintiff told him he did so on a limited basis because he did not feel like he could go out in public.  Professor Taylor was wrong, reporting the plaintiff worked on his dog certificate training six hours a day. The plaintiff actually told him he had stopped the course, not so much because he was not enjoying it, but because there were certain periods of time where he was not really able to do much at all.

369While Professor Taylor reported the plaintiff considered Bourke Street did not affect him initially and he continued to work very hard, the plaintiff also told him that he was having “some nightmares about it and stuff”.  He also told him he did not seek treatment until some time later because he guessed he was trying to hide the fact from himself that it did affect him, he was trying to deal with it himself and he did not want to talk to anyone about help or anything.

Consequences

370There was not a significant challenge in relation to the wide range of severe consequences of Bourke Street described by the plaintiff.  The main focus of cross examination was on the delay in seeking treatment and his work history after Bourke Street.  The plaintiff was only challenged in a limited way about how he was coping with domestic tasks when living with Marina in St Kilda.[109]

[109]      T11

371In general terms, counsel for the defendant submitted any impairment is not severe because the plaintiff has demonstrated a capacity to travel and work, and survived without treatment and/or medication.[110] 

[110]      T83, T86

372Counsel for the plaintiff simply submitted, the plaintiff’s evidence and Dr Weissman’s diagnosis enables the Court comfortably to conclude that the plaintiff meets the threshold of having a severe long-term mental or severe long-term behavioural disorder.[111]

[111]      T110

Treatment

373As the High Court held in Transport Accident Commission vKatanas,[112] while the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classified as severe, it is only one of a range of considerations that needs to be taken.  In each case, the Court must take into account the relevant circumstances personal to the plaintiff and then apply the statutory test making a value judgment as described in Humphries and Anor v Poljak.[113]

[112][2017] 161 CLR 550

[113]Supra

374While there was an initial delay in seeking treatment, since September 2019, the plaintiff has received ongoing counselling for his PTSD from Dr Hall.  Skype calls continue, usually once a week. 

375Setra was prescribed for sleep disturbances in July 2019 at My Clinic. 

376Mirtazapine was first prescribed in November 2019 and replaced by Valdoxan the following month. The plaintiff continues to take Valdoxan 50 milligrams daily – a solid dose according to Dr Weismann.  In September 2021, he was prescribed Minipress Prazosin for the nightmares but ceased taking it due to the side effects.

PTSD symptoms

377The plaintiff continues to complain of a range of PTSD symptoms, the main being nightmares most nights and flashbacks.  The nightmares are transport or car related and he gets intrusive thoughts of the Asian man who was crushed and bloodied.

378His ongoing problems with nightmares, his resultant lack of sleep, waking up stressed and then interference with work were corroborated by Marina, whose evidence was not challenged.

379While not highlighting the nightmares in his report and rather, understating the plaintiff’s sleep problems, Professor Taylor did prescribe Minipress Prazosin for the nightmares when he saw the plaintiff in August 2021.

380The plaintiff is scared and nervous while in public and tends to spend most of his time at home, not leaving the house save to walk his dogs occasionally.  He is hypervigilant and jumpy.  He has experienced panic attacks since moving to Parkes when reminded of Bourke Street.  He is easily startled by loud noises and continues to be a very nervous passenger, unable to consider ever getting his licence.

Work

381The effect of the Bourke Street nightmares and ruminations on work was gradual, with the plaintiff battling on despite lack of sleep.  His problems appear to have peaked when he was working at ANZ and he then sought help.

382His difficulties continued in his much less stressful job as a dog groomer, as Ms Leiberman confirmed, and he ultimately left that job.  Mental health issues were also part of the reason he stopped the dog grooming course during COVID and not been able to resume it.

Work future

383In June 2021, Dr Moon simply noted employment wise, it was difficult to see the plaintiff working with the psychological pressures of the upcoming court case.

384As of October 2021, Dr Hall thought the plaintiff was totally unfit for work that year and possibly six months into 2022.  In his June 2022 report, he did not comment on the plaintiff’s work capacity.

385Currently, Dr Weissman genuinely believed that the nature, extent, severity and chronicity of the plaintiff’s Bourke Street related psychiatric symptoms would totally incapacitate him for all work at for at least the foreseeable future.

386Professor Doherty, while acknowledging a limitation on the plaintiff’s capacity for work, thought that was now due to the continuation of his pre‑existing psychological and psychiatric problems, and is worsened by his current social situation.

387Having found no psychiatric diagnosis, Professor Taylor thought the injuries as a result of Bourke Street do not interfere in any way with the plaintiff’s ability to work.

388Taking into account the plaintiff’s current symptoms and this psychiatric evidence, I am satisfied as a result of his Bourke Street related psychiatric impairment, the plaintiff is unlikely to resume any gainful employment in the foreseeable future.

389Further, due to his problems with fatigue and poor concentration, his enjoyment of a range of pre-injury activities such as playing musical instruments and drawing has been reduced.  His social life is minimal, having previously been very outgoing and sociable

Prognosis

390Dr Moon, having last reported in September 2021, and not having seen the plaintiff for some time, did not really comment on his prognosis.

391In June 2022, Dr Hall sensed the condition would stabilise over next three months and if not, the plaintiff would require psychiatric assistance.  He then went on to say, he hoped the plaintiff’s condition could be turned around in the next six months.

392In June 2022, Dr Weissman thought the prognosis was quite, if not very, uncertain and guarded.

393Professor Doherty thought the plaintiff’s prognosis was favourable when he saw him in February 2021, but that was no longer the case since the move to Parkes.  He thought the situation was one of continuation and worsening of the plaintiff’s psychological and social problems present before Bourke Street and continuing thereafter. 

394Professor Taylor thought the prognosis was good and that the plaintiff should continue to have Valdoxan in the future – hard to understand given no psychiatric condition.

395As his symptoms have persisted for nearly six years, and while it is hoped there will be some improvement in the future, on balance, I am satisfied the plaintiff’s mental impairment is long term.

396Taking into account all of the evidence, I am satisfied that there has been a severe aggravation of the plaintiff’s psychiatric condition related to Bourke Street.

397Accordingly, I grant leave to the plaintiff to bring proceedings to damages in relation to the Bourke Street incident.

Appendix 1

TAXATION SUMMARY
Financial Year	Gross Earnings	Employer Details	Earnings
2014	$23,856.00	KC’s Rock Shop Pty Ltd	$23,856.00
2015	$13,328.00	KC’s Rock Shop Pty Ltd	$13,328.00
2016	$5,261.00	Department of Human Services
2017	$35,051.00	Department of Human Services     N4C Pty Ltd    C2V Pty Ltd	$2,110.00 $7,588.00 $25,353.00
2018	$25,595.00	Surge Direct Pty Ltd     Red Energy Pty Ltd     N4C Pty Ltd	$11,405.00 $11,248.00 $2,942.00
2019	$14,597.00	Hays Specialist Recruitment (Australia) Pty Ltd  Surge Direct Pty Ltd	$4,190.00 $10,407.00
2020	$30,466.00	Hays Specialist Recruitment (Australia) Pty Ltd Department of Human Services     YP Korn Pty Ltd	$28,241.00 $3,774.00 $1,851.00
2021	$22,025.00	YP Korn Pty Ltd	$1,607.76