Jenkins v Transport Accident Commission
[2022] VCC 2187
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04543
| RUSSELL JENKINS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 5 September 2022 | |
DATE OF JUDGMENT: | 14 December 2022 | |
CASE MAY BE CITED AS: | Jenkins v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2187 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – pain and suffering – permanent severe mental or permanent severe behavioural disturbance or disorder – mental reaction to wife’s Acquired Brain Injury sustained in a transport accident
Legislation Cited: Transport Accident Act 1986 s93(4) and (17)
Cases Cited:Humphries and Anor v Poljak [1992] VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Mobilio v Balliotis & Ors [1998] 3 VR 833; Rowe v Transport Accident Commission [2017] VSCA 377; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; De Agostino v Leatch & Anor [2011] VSCA 249; Transport Accident Commission v Katanas (2017) 91 ALJR 865; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave granted to the plaintiff to commence proceedings for damages
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms F Crock | Arnold Dallas McPherson |
| For the Defendant | Mr D Masel SC with Ms A Bannon | TAC Legal |
HIS HONOUR:
Introduction
1The plaintiff, Russell Jenkins, has been married to his wife, Dr Jenni Jenkins, since 1989. Dr Jenkins is the love of the plaintiff’s life, having been in a relationship since they met at university in 1982. He is a devoted and caring husband.
2On 29 June 2015, a car struck Dr Jenkins while she was riding her bike, causing her to fall and hit her head. Dr Jenkins suffered a crush fracture to L1, a sacral fracture at S3 and temporary post-traumatic amnesia, and was transported to hospital. The initial concussive injury was severe enough to rupture both of her breast implants. Tragically, whilst not diagnosed at the time, Dr Jenkins had also suffered an acquired brain injury (“ABI”) in the transport accident.
3Dr Jenkins’ ABI has left her impulsive, irritable and with personality change. She fatigues very easily, and whilst able to maintain a good demeanour in public, in general at home she is extremely irritable, and can be aggressive and difficult.
4The circumstances of her accident and managing Dr Jenkins’ ABI have been distressing, both for the children and, in particular, Mr Jenkins. Understandably, he has been traumatised by this experience. It is not in dispute in this application that he suffers from a Major Depressive Disorder.[1]
[1] Transcript (“T”) 100
5It is also not in dispute that Mr Jenkins, previously a very highly paid executive with the Bendigo Bank, is now totally and permanently incapacitated for all forms of employment.
6Mr Jenkins seeks leave, pursuant to s93 of the Transport Accident Act 1986 (“the Act”), to commence proceedings for common law damages on the basis that he has suffered a severe long-term mental or severe long-term behavioural disturbance or disorder as a consequence of the transport accident on 29 June 2015.
7The Transport Accident Commission (“TAC”) submits that Mr Jenkins’ condition (1) is largely in remission; (2) has not caused severe pecuniary or non-pecuniary consequences; and (3) was not caused predominantly by the transport accident.
8The central issue in this case is relatively narrow and involves causation. The progressive nature of the symptoms experienced by Mr Jenkins, which emerged over a period of about 12 months following the transport accident, gave rise to a contest on the facts as to whether Mr Jenkins’ Major Depressive Disorder was suffered as a result of his wife’s transport accident, or his being made redundant at the bank in 2016.
9Having considered all of the evidence, I find that Mr Jenkins has suffered a Major Depressive Disorder predominantly as a consequence of the transport accident on 29 June 2015. I further find that the injury is “severe”, both subjectively for Mr Jenkins and when comparing his consequences with the range of comparable cases including those that do not come before the Court.
Principles
10In order to be granted leave under sub-paragraph (c) of the definition of “serious injury”, Mr Jenkins must satisfy the Court that:
(a) the nature of any accident-related injury and its consequences for the plaintiff are capable of being fairly described as “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”; and
(b) the injury is “serious” when assessed objectively in comparison with other cases in the range of possible impairments or losses.[2]
[2]Humphries and Anor v Poljak [1992] VR 129 at 140
11Satisfaction that the behavioural disturbance is “severe” requires Mr Jenkins to satisfy a definition which is “stronger in terms of significance or gravity than serious”.[3]
[3]Mobilio v Balliotis & Ors [1998] 3 VR 833 at 854
12The plaintiff bears the onus of establishing the consequences of the impairment of function from his injury sustained as a consequence of his wife’s transport accident.
13Whilst impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, at [27].
Background
14Mr Jenkins is a 62-year-old former banking executive. He and his wife have two adult daughters, aged 29 and 31, and have enjoyed a happy marriage. Despite her ABI, Mr Jenkins remains devoted to his wife.
15In 1992, Mr Jenkins commenced working for the Bendigo Bank (“the bank”) where he had a distinguished career as a senior executive for over 20 years. Mr Jenkins had a high profile in community banking and the wider Bendigo community. Dr Jenkins also enjoyed a fulfilling career in Bendigo as a well-regarded general practitioner.
16A week after the transport accident in June 2015, the plaintiff and his wife flew to Spain for a holiday, for which Dr Jenkins had medical clearance. Dr Jenkins suffered nausea and started vomiting uncontrollably during the flight, which continued upon their arrival in Spain. Her behaviour became erratic. Dr Jenkins presented at a hospital in Italy where she was diagnosed with hyponatraemia – low sodium levels – as a result of her ABI.
17As a result of the low sodium, Dr Jenkins developed severe cerebellar oedema with markedly raised intracranial pressure. As a result of the raised intracranial pressure, she suffered further brain damage.
18Mr Jenkins was informed that his wife could have died as a result of the hypernatremia and raised intracranial pressure.
19Dr Jenkins now tires easily, is irritable and impulsive, and was forced to retire from general practice. Her ongoing condition is characterised by significant personality and behavioural changes, including irritability and aggression.
20In early 2016, the bank started discussing Mr Jenkins’ employment with him. In a meeting with the bank’s managing director, Mike Hirst, Mr Jenkins was made aware he was being made redundant. It was around this time that Mr Jenkins first consulted his GP, Dr Cope, regarding concerns about his mental health. His redundancy offer was finalised in mid-2016, and took effect in September 2016.
21Understandably, Mr Jenkins’ redundancy was a source of distress for him.
Credit
22An attack was made on the credit of Mr Jenkins – not in the sense that he was untruthful, but that his evidence was unreliable. I do not accept this to be the case, and find that Mr Jenkins was an honest witness who did his best to provide direct answers in difficult circumstances.
23I accept that Mr Jenkins has a longstanding psychiatric condition, and the experience of being cross-examined was a difficult and stressful process for him.
24It must be recognised, both generally and in the circumstances of this case, that attending court to give evidence in a contested hearing, faced with the prospect and eventuality of cross-examination by very experienced counsel representing the interests of the TAC, is a stressful one. This is particularly so having regard to the nature of Mr Jenkins’ accepted mental condition of major depression. His condition has also been described by his treating psychiatrist since 2018 as a post-traumatic type anxiety disorder, characterised by tears and irritability.
25Mr Jenkins broke down when taking the oath prior to giving evidence and at several times during the course of his evidence. Former colleagues, friends and his treating psychiatrist describe every single interaction with him involving him bursting into tears.
26All treating doctors observed that Mr Jenkins presented himself in a genuine manner notwithstanding his difficulties and depression, with no evidence of exaggeration or lack of insight. In court he appeared to be quite open and generally answered questions in a candid manner, at times against his interest. He was certainly not evasive in responding to questions, where evasion or minimisation might have been expected.
27For example, Mr Jenkins frankly conceded that there was a lot of grief over the loss of his position at the bank.[4] Further, that he was stressed by his wife Jenni’s other health issues,[5] and that his account of things may include an element of catastrophisation “without question”.
[4]T78
[5]T78
28Mr Jenkins agreed that his legal case was stressful to him, and that he had been on Serepax for the last couple of weeks before the hearing because he could not sleep and just lies in bed obsessing about it. He finds it very stressful having to revisit everything that took place after the transport accident. He is wary of taking Serepax continuously and is careful to ration himself.
29If Mr Jenkins had been underperforming as a highly paid executive in 2016 he agreed he would have expected to have been told. He was never told there was any suggestion he was underperforming.[6] This, on the one hand, suggests that his performance was not affected. On the other hand, it may demonstrate that Mr Jenkins was effective in continuing in his role despite the stress he was under.
[6]T49-50
30The TAC concede that there is no reason the bank’s executives did not share Mr Jenkins’ view that in the lead-up to his redundancy he was coping with a tremendously difficult situation.
31Ultimately, I accept Mr Jenkins’ evidence that in the context of his discussions with the bank and with his doctor about his redundancy at the time, “I was always more worried about Jen, always more worried about Jenni. I mean if you live with someone in that position, it never leaves your mind”.
Causation
32Ultimately, the issue distilled to this: what effect did the plaintiff’s redundancy in September 2016 have in terms of his current presentation? There was a contest on the evidence as to whether Mr Jenkins’ work performance was affected at the time of his redundancy. I accept that to be the case. Whilst on the materials there is a factual contest as to whether the redundancy was “genuine” or “corporate speak” to say “it’s time to go” in the context of declining performance, the bank’s conduct in 2016 is not on trial in this proceeding. I must determine whether the consequences of the transport accident as at the time of the hearing meet the statutory test.
33I accept without hesitation that his wife’s transport accident – the magnitude of which is not in dispute – was the major contributing factor in the development of the Major Depressive Disorder which now compromises Mr Jenkins’ life.
34An affidavit of Lynette Ann Hayward, a former colleague of Mr Jenkins’ in the context of her involvement with him in a community bank project in Tasmania, included evidence that:
“Having been someone who exuded a very high level of confidence, he seemed, from mid to late 2015, and after, to greatly lose confidence.
...
... It was remarkable to witness his decline from mid-2015.”[7]
[7]Affidavit of Lynette Ann Hayward sworn 20 May 2022, paragraphs 7 and 14
35The plaintiff began to break down in tears when the managing director of Bendigo Bank at the time, Mike Hirst, started informal discussions regarding “future options”.[8]
[8]Plaintiff’s affidavit sworn 11 November 2020, paragraph 36
36The defendant relies upon an affidavit of Michael Hirst sworn 8 June 2022. Mr Hirst does not dispute Mr Jenkins’ account of his distress in relation to his wife’s transport accident.
37Mr Jenkins’ current treating psychiatrist, Dr Nicholas Ingram, has diagnosed a Major Depressive Disorder as a consequence of his wife’s accident and associated personality changes.[9] He considers Mr Jenkins to be incapacitated for work due his struggle with concentration, energy levels and lack of emotional regulation caused by his Major Depressive Disorder. Most recently, in April 2022, Dr Ingram opined that despite Mr Jenkins becoming more accepting of his condition, he was still significantly depressed and anxious. Dr Ingram has treated Mr Jenkins since 2018.
[9] Reports of Dr Ingram dated 3 September 2020 and 19 April 2022
38While I have considered all the evidence, including the various reports and notes from treating general practitioners and medico-legal opinions over the years, the reports of Associate Professor Doherty in 2021 and 2022 to the TAC resolve the question of causation, in terms of the effect of the transport accident upon Mr Jenkins’ current presentation.
39Associate Professor Doherty’s report of 20 June 2021 includes findings that:
(a) the plaintiff’s perceptions appeared to be of normal intensity and not heightened or distorted, with unimpaired insight and judgment;
(b) he has a Major Depressive Disorder;
(c) his whole person collective level of psychiatric impairment is 10%;
(d) 8 per cent of his current psychiatric impairment results directly from the effect and circumstances of the subject transport accident, with 2% from unrelated injuries including the redundancy and his wife’s breast cancer diagnosis.
40Having later been provided with a statement of Mr Hirst as to the circumstances of the redundancy from the perspective of the bank, Associate Professor Doherty’s later report dated 6 May 2022 expresses his revised opinion that the component of Mr Jenkins’ current mental health problems caused by the fact of redundancy was 25 per cent.
41In this latter report, Associate Professor Doherty finds that:
“The current diagnosable psychiatric condition that presented following the wife’s transport accident has significantly contributed to the plaintiff’s ongoing deteriorated mental health.”[10]
[10]Defendant’s Court Book (“DCB”) 14
42He also assessed Mr Jenkins as having no capacity for work, and noted that there was no likelihood of a successful return to paid employment. Associate Professor Doherty goes on to say that the plaintiff’s mental health would deteriorate if in a stressful work environment, that there is no likelihood of a successful return to paid employment, and that the overall outlook is guarded. I accept that evidence.
43The TAC relies upon Rowe v Transport Accident Commission,[11] which confirms the approach required by s93 and, as the Court has made plain in cases such as Petkovski,[12] Skorsis,[13] Filipowicz[14] and De Agostino,[15] the task of a judge hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question, and then to determine whether that injury is serious in the defined sense.[16]
[11][2017] VSCA 377
[12]Petkovski v Galletti [1994] 1 VR 436
[13]R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386
[14]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
[15]De Agostino v Leatch & Anor [2011] VSCA 249
[16]Rowe at [82]; see Transport Accident Commission v Katanas (2017) 91 ALJR 865, 867-8 [4]-[6]
44Rowe establishes that s93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious, and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.[17] That is not this case.
[17]Rowe at [86]
45On the basis of the evidence as a whole, the predominant cause of Mr Jenkins’ current psychiatric presentation is the transport accident.
46That being the case, his incapacity for all forms of employment as a consequence of his Major Depressive Disorder is sufficient, in my view, to establish that the injury is severe.
47Should I be required to do so, I also find that the non-pecuniary consequences of the transport accident also satisfy the narrative test.
48Mr Jenkins, from the gregarious and confident man prior to the transport accident, has been left a shell of his former self. Whilst he goes out for coffee most days, he does so mostly alone. At the direction of his treating doctors, he occupies himself in physical exercise, again principally alone. He is a keen cyclist, but no longer rides in a peloton, rather by himself or with close friend, noted Australian professional Phil Anderson. The explanation for the exception to his usual practice of riding alone is that Mr Anderson’s wife apparently has also suffered a brain injury, and he finds his company therapeutic. Mr Anderson is his best friend.
49Mr Jenkins has largely given up golf, which was a large component of his life before the transport accident. Upon enquiry as to why, his evidence was that:
“... in the period immediately post the accident, I used going out to golf at the local golf course in Bendigo and Lorne for solitude and what I’d do is I found myself just walking around crying nonstop. I’d go out there and I’d just cry ... I think it just became such – I think what happened was – my memories are vague, but I think it just became such a negative thought for me to be on the golf course because of all the crying I did.”[18]
[18] T27
50The sustained, uncontrollable and consistent crying of the type observed in Mr Jenkins both in and out of court is, in my view, an indicator of the severity of his mental condition and indicative of the level of the distress suffered by him on an ongoing, permanent basis.
Medico-legal evidence
51In addition to Associate Professor Doherty, whose opinions are referred to above, two other consultant medico-legal psychiatrists have examined Mr Jenkins and provided reports which were tendered.
Dr Erin Redmond, consultant psychiatrist
52Dr Erin Redmond examined Mr Jenkins at the request of TAL Life Limited on 9 June 2017 and produced a report dated 22 June 2017, and diagnosed a Major Depressive Episode caused by the ongoing medical illness of his wife. She did not consider that his symptoms were unusual in the circumstances, noting the Jenkinses’ very close marriage and the impact of the accident on Dr Jenkins’ personality. She found no evidence of malingering or hypochondriasis.
Dr Christine Kotsios, consultant psychiatrist
53Dr Christine Kotsios examined Mr Jenkins at the request of TAL Life Limited on 17 December 2019 and produced a report that same day. Dr Kotsios reached similar conclusions to Dr Redmond, diagnosing chronic Major Depressive Disorder with Anxious Distress.
54Dr Kotsios was asked to report on whether Mr Jenkins’ involvement in competitive sport was consistent with his diagnosed psychiatric condition. She opined that his pursuit of exercise was not surprising in the context of his perfectionist personality type with obsessional tendencies. She also noted that exercising was a solitary activity for Mr Jenkins.
55Dr Kotsios opined that Mr Jenkins had no capacity for work, due to his frequent tearfulness, poor concentration, intermittent anger and fatigue. She also noted that a return to work would present a considerable risk of worsening of his psychological state.
56While noting that Mr Jenkins’ psychiatric condition had partially improved in the context of him seeking treatment, his condition was chronic and would require continued treatment.
Submissions of TAC
57The TAC submitted that the Major Depressive Disorder suffered by the plaintiff was in part reactive to the transport accident; and that another cause was the disappointment at redundancy, which had a significant effect on Mr Jenkins. It was said that a lot of his persona was invested in rewarding work with, understandably, a greater satisfaction from what he has achieved. The submission went so far as to suggest that the only pecuniary consequences were related to his redundancy or his mental injury caused by, or associated with, his redundancy. I reject that submission.
58Redundancies are commonplace in the corporate world. Mr Jenkins himself had suffered disappointment in being overlooked for the CEO position in 2009. He described his previous reaction as “more of annoyance” than a psychiatric response.
59It is the plaintiff’s capacity which I must assess as at the date of the application, consequent upon the transport accident. I find that his current total incapacity is substantially the result of the transport accident, and am satisfied that the requisite causative element exists to establish that his pecuniary consequences have been caused by the transport accident, notwithstanding that his incapacity arises in part due to his disappointment at the fact of his redundancy. Were it not for the transport accident, I find that Mr Jenkins would have returned to work and continued in employment in the banking sector, at least in a part-time role, to around the age of 75 years.[19] The plaintiff’s evidence was not challenged in this regard.
[19]Plaintiff’s second affidavit, paragraph 74
60A number of doctors identified that Mr Jenkins was verbose in his answers, with some difficulty focusing on the questions he was asked. For example, Dr Nicholas Ingram, a consultant psychiatrist engaged by the plaintiff’s solicitors, recorded in his report dated 3 September 2020 that:
“He spoke clearly, though there was some pressure of speech and he was over-inclusive with his answers and it was sometimes difficult for him to focus in on answering the question he was asked.”[20]
[20]Plaintiff’s Court Book (“PCB”) 131
61He was also noted to be preoccupied with anxious and depressive themes.
62In that context, Mr Jenkins was cross-examined extensively about a note taken by his treating general practitioner, Dr Cope, on 26 June 2016, being the first substantive attendance on a medical practitioner in relation to his depressive symptoms. Due to the focus upon it at the trial, I set out that note in full below:
“Wednesday June 22, 2016 11:58:58
Dr Andrew T Cope
Long consult re concerns re mental health
Started 7 years ago with Lauren leaving home and dog dying and some high stress issues at Bank when felt he was very unfairly dealt with by some colleagues.
Highly valued in his leadership role within the bank
Highly stressed at time - spent a w/e walking golf course alone in tears - decided could not return to work but then spont improvement in emotionl state - returned to work but felt very emotional. Started to spend some time home alone - esp Lorne. Jenni challenged him over some behaviours and short fuse - suggested might be depressed. Subsequently there were changes at bank 6 years ago with change in role and drop to 4 days a week and this helped
3 years ago shed more work responsibilities and down to 3 days a week. over next 6 months noted a marked improvement in mood and wellness - this lasted 18 months until Jenni’s health issues started with bike accident and HI. Sense of stress recurred with emotional decline.
Jenni’s health has improved over last 6 months but remains tired, forgetful, fatigue, irritable and fragile. Russell started to improve.
Last week had review at work => pay cut or package by HR - broke down - spent several days at home - little sleep, brave face
Then meeting with Mike Hurst (MD) yesterday - offered redundancy but retain as contractor - this suddenly looks good - financially and hours and commitment. Felt much better - slept well last night.
Has seen counsellor/psychologist courtesy of bank and helped ++++ and will continue. Jenni aware of work but not how Russell coping.
Appetite good
Sleep was poor but better last night
Family - Jenni - see above - relationship solid
Lauren was depressed and Rx but good now
Georgina - has been depressed and Rx. Emotionally labile and flew to Europe for 4 months on gap year yesterday. Will see her in Europe shortly
Self harm - rare thoughts like driving off cliff but dismissed
Hedonia - looking forwards to hols in July and Sept
No sig debt
No gambling
Alcohol - has been an issue - not now
Drugs - no illicits
Forensic - nil
Physically very well - runs marathon next week
Examination:
Tearful recurrently
Commanding explanation of history and issues
Suit - immaculate
Affect reactive
Mood gen good
Management:Given marked improvement in last 24 hours with Bank offer - looks like reactive anxiety with depression
Suggest continue support with counsellor pro tem
See 3-4 weeks to reconsider issues, mood and ? depression and ??? medication
Some aspects of Jenni being unable to return to work and prospects discussed.
Reason for contact:
Stress” (sic)[21]
[21]DCB 311
63Mr Jenkins gave evidence that after his wife Jenni’s ABI:
“... even though I was struggling to do my job when I was at the bank for that period post the brain injury, I thought it was a normal ... I thought it was a normal response to the pressure I was under ...”[22]
[22]T69-70
64He considered he might be having some severe health issues, and that was the reason for seeing Dr Cope in 2016.
65Mr Jenkins clearly found it difficult to answer questions concerning the record of his consultation with Dr Cope on 22 June 2016. Ultimately, he agreed with much of the history referred to in the clinical note, but was at pains to put this history into context. For example his evidence included that the reference to reduced hours reflected work from home arrangements, not his capacity. I find that the level of income earned by Mr Jenkins was inconsistent with him working part-time in the three years prior to the transport accident, as was suggested by counsel for the TAC.
66In response to the review at work in June 2016, where he was discussing taking a redundancy package with the bank, I accept that Mr Jenkins broke down, spending several days at home with little sleep, but “put on a brave face”. He felt much better upon further discussions with Bendigo Bank Managing Director, Mike Hirst on 21 June 2016 – “this suddenly looks good”.
67In cross-examination it was put to Mr Jenkins that the context of him going to see Dr Cope was entirely to do with his problems at work where he was being offered a package or a pay cut. He denied this, and went on to say:
“[W]ell, that may have been what I spoke to Dr Cope about, but I now understand, based on talking it through. Based on my behaviours beforehand, I now understand that [the effect of Dr Jenkins’ head injury and the plaintiff’s mental health decline as a result] was the deeper underlying issue.”[23]
[23]T73
68I do not accept that this clinical note makes good the TAC’s submission that Mr Jenkins has re-invented history in attributing his condition to his wife’s transport accident rather than his redundancy. Dr Cope’s note clearly reflects a wide-ranging consultation, which records difficulties he was facing in terms of his wife’s transport accident.
69I note in this context Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, where Ashley JA said:
“[T]wo observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, ... it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”
70Mr Jenkins agreed that he did break down upon being confronted with the “pay cut or package” in a review by human resources at the bank.[24] I accept Mr Jenkins’ evidence that while being overlooked for promotion in 2009 caused stress and reduced him to tears, he made a complete recovery and returned to work for seven years until his redundancy in September 2016. There were no attendances on his general practitioner for mental-health-type issues in the seven years prior to June 2016.
[24]T72
71The following notes recorded by doctors at his longstanding general practitioner’s clinic, whom Mr Jenkins had consulted since 2002, also appear relevant:
· 13 July 2016 – has been going very well last few weeks – felt distressed diagnosis was accurate in retrospect and that he did not have an endogenous anxiety or depression state and was pleased with this and was working towards a redundancy between Sept and Dec. Last night was called in by CEO (Mike) and given option to take redundancy stat or work on and lose redundancy deal and uncertain outcome. So was “sacked” last night and feeling very let down by bank – lack of respect for his position and hard work.
Long debrief.
Worries re Jen.
Feels optimistic re work and future.
More worried re Jen.
· 17 August 2016 – Had trip to Europe.
Lower mood on return – Jen’s illness playing on his mind. Brutality of redundancy.
Trying to look forward – pos attitude.
Has income protection insurance.
· 12 October 2016 – long discussion re Jen.
Bank – two months since departure … still an emotional impact – long debrief – consider debrief counselling sometime if negativity and anger persist.
Anxiety and any depression now dissipated.
· 15 February 2017 (Dr Jared Cairns) – long history. Wife is Jenni. Jenni is now a retried GP. … Two years ago she was involved in a push-bike accident where she went … struck by a car with head strike. Developed personality changes and she is now no longer the person she once was. Has fully ceased GP practice as a result. Able to maintain generally conversation but struggles with higher reasoning. Ongoing tiredness/irritability/forgetful and takes its toll on Russell.
Russell previously employed high up in the Bendigo Bank in a managerial position. Made redundant 9/12 and nil work there since. Went on a long holiday and found it beneficial. Exercising +++.
Then day before yesterday, phone call from lawyer about TAC case and may be eligible for compensation, broke down as a flood of emotions returned.
Sobbing +++. Very teary. Long periods of silence where he is crying. Better afterwards.
· 28 February 2017 – mood: ongoing tears at unexpected things.
· 21 March 2017 – found increasing emotional – crying – usually out running – would retreat to golf course – more stressed – then improved in Jan down in Lorne then was on the verge of a return to work as a consultant with bank - …………(?) work colleague and started to discuss = > public meltdown with crying floods … several other episodes of decompensating publicly.
Always a background headache and often nausea.
Last well two years ago.
· 22 March 2017 – loads of grief and loss relating to Jenni.
· 6 April 2017 – ongoing despair re Jenni.
· 24 April 2017 – still ongoing crying +++.
72The picture presented by these contemporaneous clinical notes is one of emerging symptoms, principally related to his wife’s transport accident and associated ABI.
73In 2016, in addition to attendance upon his GP, he accessed the bank’s employee assistance program on two occasions.
74In his report dated 24 July 2020 directed to TAC Claims Division, Dr Cope recites the history of the transport accident in which Dr Jenkins sustained significant injuries, including a head injury and spinal injuries, and the associated change in her personality, behaviour and the relationship between Mr Jenkins and his wife.
75He then goes on to say:
“Following this Russell experienced a gradual escalation in anxiety and depression. This culminated in a redundancy from a high functioning position at Bendigo Bank. He has struggled with his depression since then with marked emotional lability, loss of self esteem and functional capacity in terms of being able to return to work.”[25]
[25]PCB 109
76In his referral letter to Dr Peter McArdle, psychiatrist, dated 26 April 2018, Dr Cope states:
“Russ has a fairly profound anxiety/depression with a number of significant factors. Briefly his wife Jenni had an accident in June 15 sustaining a number of injuries when she was knocked from her bike by a car sustaining some spinal injuries and a head injury with no significant anterograde amnesia. However ther (sic) are a number of cognitive issues for her that she is not clearly aware of with some personality change that Russ describes. She was working as a GP and has not been able to return to work.
During the following year Russ started to struggle with his high flying bank executive job (Bendigo Bank) culminating in him being given an ultimatum to resign with a package or risk being pushed. He left but has run into significant mood problems, struggles with Jenni’s altered persona, is acutely anxious with any connection or reminders of the Bank and I think is happier away from his home of Bendigo as an avoidance technique. There is a lot of grief over the loss of his position at the bank and the altered relationship with Jenni. There is also Jenni’s past history of breast cancer and her HNPCC gene defect requiring ongoing surveillance for malignancy (endoscopically). He tends to catastrophise regarding all of this and is a little avoidant. His daughter Georgie has also struggled with depression (medical student) and Russell believes all this is connected. He has some good examples of Jenni cognitive struggles.”[26]
[26]PCB 77
77Dr Cope clearly links the recurrence of stress and emotional decline with Dr Jenkins’ health issues consequent upon her bicycle accident and head injury, as well as the redundancy.
78I accept Mr Jenkins’ evidence that there was an impact of his wife’s transport accident on his capacity to perform in his role as a senior executive of the bank. I find on the evidence as a whole, that as a consequence he is now totally incapacitated not only from that employment, but all forms of employment.
Consequences
79Whilst the plaintiff has retained capacity to deal with his investments in the context of advice received from his financial advisers, he is not trading to the same level as he was prior to the transport accident, and in fact had sold down his holdings into managed investment funds, so that he was relieved of decision-making in relation to his ongoing finances.
80Mr Jenkins is under continuing treatment from his psychiatrist, Dr McArdle, whom he sees every three months. He has seen Dr McArdle continuously since July 2018. He is taking ongoing antidepressant medication, and has had the support of psychological counselling, both of which would need to be continued into the foreseeable future. His medication includes Lexapro and Cipralex, Oxazepam and Serepax for sleep.
81His sleep is interrupted to a significant degree. As the Court of Appeal stated in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
82Although he continues to cycle, he rarely rides in a group these days. He did not enjoy his recent 60th birthday. He is proud that he has managed to keep up various activities, specifically designed and encouraged by his medical team, to keep his mind active in order to maintain his mental health. Any joy he does achieve from these activities is less than he experienced prior to the transport accident.
83Most years he goes to Falls Creek by himself or with Mr Anderson for a week of solitude and regrouping – “a mental health break for want of a better term”. Despite membership at three golf courses, he has hardly played any golf since the accident, and is now no longer able to play competition golf. He was quite frank in his concession that, as a big picture, he was generally improving in the sense that it has been a process of acceptance, first of all understanding that Jenni’s brain injury was permanent, because they initially thought it was going to be temporary, of his own severe depression and anxiety issues, and the next stage in his journey of acceptance was that, in turn, it meant that he would never work again.
84He gave compelling evidence of the effect of his wife’s ABI and how he has had to live with that, with her interrupting him all the time, arguing, treating him like an “absolute imbecile”; with her behaviour deteriorating upon doing too much or general ill-health. Constant vigilance is required because her high level decision-making has been significantly impaired, as evidenced by her not being able to continue in her previous role as a general practitioner.
85Against the grant of leave it was submitted that Mr Jenkins’ undoubted accomplishments as an athlete, as a runner and in other endeavours since the transport accident, his attempts to retain contact with friends, his shopping, cooking, quality time in the garden and overseas travel, do not bespeak of the level of severity required in order to satisfy the narrative test; and that the therapeutic nature of those activities in fact lessen the severity of his illness.
86However at the end of the day, at best, and despite some improvement, Mr Jenkins remains very fragile, and totally incapable of returning to any form of work, including any voluntary work.[27] Much of the activity relied upon by the TAC in terms of exercise and time alone is to reduce the amount of stimulation, particularly social stimulation, with which as a result of his psychiatric injury he is unable to cope. He has severely-impaired concentration and motivational issues save for his physical activities. Whilst prior to the accident he was an avid reader, he now struggles to read a book at all. His unchallenged evidence is that he is now no longer the outgoing person he was before the accident, and struggles to cope with any stress. Several times a week he has panic-attack-type episodes including heart palpitations, heavy breathing, and sweating, which usually ends with him bursting into tears. The transport accident has affected his relationship with his wife profoundly. They now spend a lot of time apart, and Mr Jenkins has practically no libido at all. His inability to work upsets him greatly, and he is embarrassed when he runs into former colleagues. This is understandable in the context of a very high-performing executive deprived of the ability to apply his skills and experience for his own and others’ benefit.
[27] Report of McCardle dated 4 November 2021, PCB 87
87Having considered the consequences of the transport accident to Mr Jenkins, and balancing his impairment consequences against the extent to which he has been able to maintain his involvement in domestic duties and activities of daily living, I am satisfied that the nature and symptoms of the injury and the consequences of the injury are subjectively severe for Mr Jenkins; and when assessed objectively, meet the requisite statutory test of severe when compared with the range or spectrum of comparable cases.
Conclusion
88Leave is granted to the plaintiff to commence proceedings for damages in respect of injuries suffered as a consequence of the transport accident on 29 June 2015.
89I will hear the parties as to final orders including costs.
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