Hurlstone v Victorian WorkCover Authority

[2024] VCC 1435

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-00533

KYLE HURLSTONE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2024
DATE OF JUDGMENT:	18 September 2024
CASE MAY BE CITED AS:	Hurlstone v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1435

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – workplace injury – psychiatric injury – whether psychiatric injury is “severe” - whether psychiatric injury permanent

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:Transport Accident Commission v Katanas (2017) 262 CLR 550; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti KC with Mr S Carson	Arnold Thomas & Becker
For the Defendant	Ms K Bradey	Lander & Rogers

HIS HONOUR:

1Kyle Hurlstone deposed in his affidavit to suffering psychiatric injury in the following way:

“In the process of unloading, the truck/crane driver managed to allow the boom of the crane to come into physical contact with overhead power lines. This completed a live circuit, grounding the crane operator and causing him to suffer a massive electric shock.

The sky lit up with large blue sparks. The crane operator was thrown off the truck. I recall that at least some of the tyres of the truck blew out. The driver passed out. I recall that he was frothing at the mouth with his eyes bulging from their sockets while gasping for air as he couldn't breath [sic].

The other two younger carpenters basically froze. The whole situation was obviously very confronting. I ran over and started to perform CPR on the crane operator. This was made difficult by exhaust fumes blowing onto both of us. I therefore got into the cabin to turn the engine off.

As I then came into contact with the body of the truck, I also suffered an electric shock. I recall being significantly jolted. I was lightheaded.

I gathered myself together as best I could and continued to administer CPR until ambulance officers arrived. I understand they took about 8 minutes to arrive. That 8 minutes felt like a very long time from my perspective. I still recall it as being a very long time to this day.”[1]

[1]Plaintiff’s Amended Court Book (“PACB”) 6-7 at [9]-[13]

2There are two issues in this case.  First, whether the psychiatric injury sustained by Mr Hurlstone is permanent.  Secondly, and in accordance with paragraph (c) of the definition of serious injury contained in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), whether it meets the definition of being severe, that is:

“… can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as “very considerable” and certainly more than ‘significant’ or ‘marked’”.[2]

[2]Transport Accident Commission v Katanas (2017) 262 CLR 550 at 4, quoting with approval from the majority judgment in the Court of Appeal ([2016] VSCA 140) which cited Humphries and Anor v Poljak [1992] 2 VR 129 at 140.

3In respect of both issues, the Victorian Workcover Authority (“VWA”) submitted that Mr Hurlstone’s evidence was inconsistent and contained embellishment which, if stripped away, would result in a finding that Mr Hurlstone’s injury was not permanent and certainly did not meet the statutory test of being severe.[3] 

[3]Refer to Mobilio v Balliotis [1998] 3 VR 833 at 834, which states that the term “severe” is more stringent than the term “serious”.

4For the reasons which follow, I find that Mr Hurlstone has given evidence which, save for minor inconsistencies, was both powerful and reliable.  Acceptance of that evidence leads to my finding that Mr Hurlstone has sustained a permanent injury which can be described as a severe mental or behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of serious injury.

Brief background facts

5Mr Hurlstone was born in July 1998.[4]  He left school and began a carpentry apprenticeship which he completed.[5]  He then started work with BNA Constructions Pty Ltd (“BNA”) in October 2015, working as a carpenter.[6]  He worked full time and this meant working more than thirty-eight hours per week.[7]  He was otherwise an active man, enjoying Australian rules football, motorbike riding and, during winter, snowboarding.[8]  The relevant injury occurred on 12 April 2021.[9]  Mr Hurlstone was employed as the leading hand on the site and was there with two young carpenters.[10]  The circumstances of what happened are set out above in the introduction.  It is sufficient to note that the VWA accepts it was a traumatic incident and that Mr Hurlstone has sustained injury of a psychiatric nature arising from it.[11]

[4]        PACB 1

[5]        PACB 38

[6]        PACB 2

[7]PACB 2 at [5]

[8]        PACB 10 at [11]; Transcript (“T) 42, lines (“L”) 21-31

[9]        PACB 2

[10]        PACB 2

[11]T66, L29

6Mr Hurlstone returned to work the next day.  He then went to see his treating doctor on 15 April 2021.[12]  Thereafter, he worked on, but towards the end of that year he made a WorkCover claim.[13]  He then returned to his treating doctor on 14 January 2022.[14]  The doctor noted that he had “PTSG [sic] features” – I take this to mean PTSD.[15]  At this stage, no referrals or medications were prescribed.[16]  He was seen again by his treating doctor on 16 February 2022,[17] requesting a referral to a psychiatrist for a mental health assessment.  He was noted at this stage to have flashbacks.  He was referred on to a group called OPTIMIND.  Nothing appears to have happened.  Mr Hurlstone’s evidence is that he was struggling at work.[18]  Part of this was to do with rumination on the incident, clear flashbacks involving vivid memories of the driver’s face and feeling very angry about the circumstances of the accident.  Mr Hurlstone describes this as:

“… I ended up in a very dark place indeed.

I became highly anxious and emotional. I was experiencing vivid memory flashbacks. I could still feel a genuine sense of fear. I could then become sad and teary. I still suffer those problems to this day.”[19]

[12]        Defendant’s Further Amended Court Book (“DACB”) 18

[13]        PACB 47

[14]DACB 32

[15]DACB 32

[16]        DACB 32

[17]        T 48 L 18; DACB 19

[18]PACB 7 at [15]-[17]

[19]PACB 7 at [17]

7In that situation, Mr Hurlstone left BNA, as he considered he was not coping.[20]  He then set up his own business and began working as a subcontractor.  He consulted with the psychologist, Ms Miriam Latif during this time.  It appears that he saw her for some six sessions, commencing on 16 May 2022 and ultimately concluding on 7 November 2022.  She considered that he was improving during her care. At the time she discharged him, she was of the view he did not need further treatment.  Mr Hurlstone’s evidence in this regard was that he found treatment with her unhelpful and so did not continue with her.  He disputed the fact he had been improving and in fact stated that, at the start of 2023, he was in such a bad way that he sought to go back to see her.[21]  Due to her unavailability, however, he came to see another psychologist, Mr Errol Akyalcin, who he commenced to see in March 2023 and has continued to see every fortnight since then.[22] 

[20]        PACB 8 at [20]

[21]        T50 L12-20

[22]        T52 L24

8Mr Hurlstone has otherwise continued operating his business as a subcontracting carpenter.[23]  He employs three apprentices and one qualified tradesman.[24]  He normally works ten to thirty-five hours per week.[25]  In early 2022 he commenced a relationship with his partner and they now live together.[26]  He is actively involved in playing football and on occasion still rides his motorbike.[27]

[23]        T22 L8

[24]        T20 L20-23

[25]        T21 L19-20

[26]        T34 L26-27

[27]        T36 L 5-16; T42 L1-31

9He takes no medication and has not sought referral to a psychiatrist.[28]  His only form of medical treatment is by way of fortnightly consultations with Mr Akyalcin.[29]

[28]        PACB 12 at [22]

[29]        PACB 12 at [22]

Is Mr Hurlstone’s condition permanent?

10It is almost universally accepted that Mr Hurlstone has a diagnosis of chronic post-traumatic stress disorder characterised by intrusive thoughts about the incident.[30]  The VWA submitted that the condition was not permanent on the basis of the treating doctor’s recording that it was unlikely to be a permanent condition,[31] the report of Dr Shan that once litigation ended there would be improvement and the recorded improvement under the care of Ms Latif and Mr Akyalcin.  I will deal with each report in turn.

[30]The report of Dr Michael Epstein at PACB 44, 48; the report of Dr Dush Shan at DACB 7; the report of Dr Derek Reinecke at PACB 38 and the report of Mr Akyalcin at PACB 22, who, in addition, diagnoses an adjustment disorder with anxiousness and mood disturbance or major depressive disorder.

[31]DACB 8

11First, the report of the treating doctor is a cursory one after very limited treatment and with no specialist foundation in psychiatric injury.  It does not carry as much weight as the opinions of Mr Akyalcin or that of Dr Epstein in respect of the permanency of the condition.[32] 

[32]        PACB 24, 35

12Secondly, as to Dr Shan’s opinion, given that he only saw Mr Hurlstone on one occasion, I would prefer the opinion of Mr Akyalcin. 

13A further reason for accepting Mr Akyalcin’s opinion is that the ongoing treatment was described by Mr Hurlstone as being necessary to counter the ongoing waves of flashbacks, intrusive thoughts and depressive symptoms that come upon him.  That has been the continuous situation, it appears, for some three-and-a-half years.  As Dr Epstein suggests, and I accept, this is a good indicator that any improvement is likely limited and the condition is permanent.[33]  I find that the condition is permanent.

[33]Report of Dr Epstein at PACB 48

Are the consequences of the injury severe?

14Mr Akyalcin opines in his report dated 30 May 2024,

“Kyle’s Diagnosis is currently Post Traumatic Stress Disorder (PTSD), Adjustment-Disorder with Anxiousness and Mood Disturbance or Major Depressive Disorder. Although, he initially clinically presented in the severe acute phase of mental disorders, Kyle has developed some coping tools across our therapy sessions, enough to now warrant a reasonable, more realistic prognosis, albeit with some limitations. However, a full recovery out of his traumatisation and ongoing moods and anxiousness would be too optimistic at this stage. Our recent sessions indicated severe symptoms.”[34]

[34]        Report of Mr Akyalcin at PACB 27

15The first area which the defendant suggested was an embellishment in Mr Hurlstone’s evidence was as to his ability to actually attend work in the morning.[35]  This matter was stated in his third affidavit, but did not feature in his first two affidavits.  Similarly, there was no history taken by Dr Shan of time off work.  I do not accept this submission.  In his first affidavit,[36] Mr Hurlstone clearly indicated that after setting up his own business he took breaks when he was feeling overwhelmed.[37]  He did not indicate whether those breaks were in the middle of the day or the start of the day.  His evidence clearly leaves open the possibility that, on some occasions, he may not go into work at all, as he was having a break when he could not cope.  This is more specifically stated in his third affidavit.[38]  Similarly, in Dr Epstein’s reporting,[39] he has a history which leaves open the possibility that breaks are taken at the beginning of the day.[40]

[35]        T34 L1-7

[36]PACB 5 at [21]

[37]        PACB 5 at [21]

[38]PACB 55 at [3]

[39]PACB 40

[40]        PACB 43

16For these reasons I reject that submission.

17The VWA next submitted that Mr Hurlstone’s recounting of flashbacks and intrusive thoughts was inconsistent with the fact that Mr Hurlstone was able to open his own business and successfully run it, employing three apprentices and one other fully-qualified carpenter.  However, the evidence Mr Hurlstone gave in respect of this was that he is able to manage his condition to a degree by having staff who could cover for his absences.[41] There is no evidence to support the Defendant’s contention that medically it is inconsistent that he works while having flashbacks and intrusive thoughts. For these reasons I reject the Defendant’s submission.

[41]T24 L25-27

18The VWA next submitted that Mr Hurlstone’s ability to return to football, and do so successfully with a new club and take on coaching duties, indicated an inconsistency with having a severe psychiatric condition.  First, it must be said that Mr Hurlstone has not hidden his involvement with football clubs, both before and after the incident.[42]  He clearly deposed to these matters.[43]  He indicated that he left the Frankston Bombers to go and play for Tyabb, as the employer of the injured truck driver was involved at the Frankston Club.[44]  This created a reminder for him of the incident and the events.  At Tyabb, he plays in the Seniors and also acts as a coach/trainer for the Under 19s.  He was frank about disclosing these matters in his affidavit and in cross examination.  He described the clarity that came with being involved in football as a relief from his own mind.[45]  I do not accept the VWA’s submission, as I view playing football as part of Mr Hurlstone’s attempts to treat his condition by staying physically active and mentally engaged.

[42]        PACB 14 at [11]; T36 L1-31

[43]        T36 L1-31

[44]        PACB 40

[45]PACB 14 at [14]; the report of Dr Epstein at PACB 42

19It was next put by the VWA that Mr Hurlstone had deposed to wanting to be alone and yet, in the year after the incident, he had begun a relationship with Ms Jessica Donnelly, who filed an affidavit in support.  Mr Hurlstone readily conceded that his affidavit on this point was inconsistent.  It was an example of candour on his behalf and strengthens my finding he was a reliable witness.  He went on, however, to say that even when he is with Ms Donnelly, there are times where he will simply become overwhelmed and have to walk away.[46]  Overall, I consider this to be a minor example of inconsistency in the affidavit material.  I do not find it carries much weight.

[46]        T58 L16-27

20The remainder of the matters put in submissions appear to me to be focused on a submission that Mr Hurlstone has retained a large number of capacities which are inconsistent with the overall determination that Mr Hurlstone has suffered a severe injury.  I will deal with them in that sense. 

21The VWA essentially submits that Mr Hurlstone has commenced a successful business employing people; regularly works full-time hours, if not overtime; has a successful long-term relationship; lives in his own home; performs all activities of daily living and has a range of recreational pursuits, including football, motorbike riding and, when conditions permit, snowboarding.  The VWA also points to the fact there is no psychiatric treatment, medication or particular referrals to PTSD clinics.

22In considering this component of the case, it is worth repeating what the majority said in Katanas:

“We see no reason to doubt that applicant’s counsel was correct in submitting that a psychiatric disorder may have severe consequences, even though the sufferer has not undergone much treatment.”[47]

[47]Katanas v Transport Accident Commission [2016] VSCA 140 at [20]

23Before embarking on the analysis of what capacities Mr Hurlstone has retained, it is necessary to say something about those consequences, which I accept Mr Hurlstone suffers from.  As I indicated previously, I accept Mr Hurlstone was a credible and reliable witness.  The evidence that he gave was given in a direct and forthright manner.  He gave evidence in a pressured, serious and, at times, laboured way.  He no doubt answered questions to the best of his ability and, as I have said, save for minor inconsistency, I accept his evidence.  I accept that Mr Hurlstone suffers from regular flashbacks and clear vivid memories of the incident and in particular the driver’s face as he performed CPR.  I accept his evidence that such flashbacks can come in waves where, at times, they are quite intense and regular.[48] The frequency with which the flashbacks occur, I accept, have decreased since the acute phase.[49]  I accept that the flashbacks are now primarily the result of environmental cues or a triggering event, such as being on a worksite with a crane, which is Mr Akyalcin’s view.  Mr Hurlstone’s evidence is that the flashback itself can last for anywhere from a couple of hours for up to a couple of weeks.[50]  That flashback is vivid.  He says, of the flashbacks:

“… I can still hear the noise of the CPR and the cracking of his ribs and his groaning and gasping for air before that ceased at which time, I believed he was dead”.[51]

[48]PACB 7 at [15], [17]; the report of Mr Akyalcin at PACB 23; PACB 31-32, the report of Mr Akyalcin; PACB 47; PACB 42 the report of Dr Epstein

[49]Mr Akyalcin, PACB 30

[50]PACB 55 at [4]

[51]PACB 57 at [11]

24I accept that this leads Mr Hurlstone into a deteriorated mental state and he has difficulty functioning during these periods.  I accept this requires him to take some time off work, or at least a break.

25I accept Mr Hurlstone is hypervigilant on worksites to do with safety and particularly with the unloading of cranes.[52]  Mr Hurlstone’s evidence was that, in circumstances where he considered things unsafe, he and his employees would simply not proceed with the job.[53]  This might happen several times a month.

[52]        PACB 9 at [9]

[53]        PACB 10 at [10]

26Mr Hurlstone also, I accept, suffers from recurrent suicidal ideation.  Mr Hurlstone gave evidence of recently driving with a trailer to work and in a split second deciding, or contemplating, whether he should drive into a tree and end his life.[54]  From his evidence, it appears that such thoughts are with him every few weeks and once they begin they lead him down into a spiral.[55]  It was put that such suicidal thoughts were not recent and had ameliorated.  This was on the basis of the reporting of Dr Epstein who recorded such thoughts had not been with him “recently”.[56]  However, when regard is had to the report of Dr Epstein, there is no clarity as to what is meant by the term “recently”.  And, furthermore, Dr Epstein has recorded Mr Hurlstone “often has a sense of impending doom”,[57] which suggests that certainly his mental state often spirals downwards.  While it is not free from doubt, I consider Mr Hurlstone’s evidence to be credible and reliable and I accept that every few weeks he will suffer from suicidal thoughts. 

[54]T68 L16-20

[55]T39 L4

[56]PACB 45

[57]PACB 45

27I accept, as well, that Mr Hurlstone is unable to work as he used to.  I accept, as I have set out above, the fact he does need to take breaks from work due to his mental injury.  There has therefore been a reduction in that capacity.  There was some debate as to whether timesheets ought to have been produced to support this assertion, however none were ultimately tendered and I accept Mr Hurlstone’s evidence.  I accept Mr Hurlstone needs ongoing psychological treatment for his condition.  This much is apparent from the reports of Mr Akyalcin and also Dr Epstein.  Dr Epstein considers, in fact, there is a role to play for antidepressants,[58] but Mr Hurlstone is adamant he will not take them. The fact that a psychiatrist considers such medication is necessary adds weight to my finding that the condition is severe, especially given the symptoms have now persisted for three years at a level where medication is justified. Dr Epstein considers the psychological treatment to be useful.[59]  I do not accept Dr Shan’s opinion that the psychological treatment will end once litigation has concluded.[60]  Rather, I prefer the opinion of Mr Akyalcin and Dr Epstein that there is an ongoing role for psychological treatment for the foreseeable future.[61] I consider Mr Akyalcin’s opinion to be authoritative in this area, given the length of time which he has treated Mr Hurlstone and the frequency with which he has treated him.  This gives him a unique insight into Mr Hurlstone’s condition.  He considers that, even with ongoing treatment, he will reach only the lower end of social and occupational functioning with his condition.[62]  I accept that evidence.

[58]        PACB 48

[59]        PACB 48

[60]        DACB 8

[61]        PACB 48; PACB 34

[62]        PACB 20

28I am mindful that, in making this assessment, I must bring all relevant considerations into account.  They must be particular to Mr Hurlstone.  I must make the assessment in accordance with the principles set out in Katanas.  I am mindful that Mr Hurlstone has retained the ability to do many things; set up a business, work reasonably consistently, play competitive sport, pursue a range of recreational activities and also begin a long-term relationship.  However, it is apparent from reading the medical reports that Mr Hurlstone is labouring day in, day out.  It is almost a constant battle to keep going.  It is the reason why he needs ongoing continuous treatment.  The evidence he gave in respect to the burden which his mind imposes upon him was powerful and compelling.  As I have indicated, I accept it.  Mental illness cannot be seen and cannot be operated upon, but it can nonetheless produce consequences which are severe.  For a young man to be labouring under flashbacks of this severity, with thoughts of suicide every few weeks and being unable to work at his full capacity for work which he has trained in, is in my estimation an extremely significant burden to carry.  The fact it will go on for the foreseeable future darkens the youthful prospects ahead.  Even considering the retained capacities he has, this injury can only be described as having severe consequences. 

29As a result of that finding, I will grant Mr Hurlstone’s application.