Keay v Metro Trains

[2023] VCC 17

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-04143

Graeme Allan Keay	Plaintiff
v
Metro Trains Melbourne Pty Ltd	Defendant

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2022
DATE OF JUDGMENT:	25 January 2023
CASE MAY BE CITED AS:	Keay v Metro Trains
MEDIUM NEUTRAL CITATION:	[2023] VCC 17

REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT COMPENSATION

Catchwords:              Serious injury – psychiatric injury – course of employment

Legislation Cited:      Accident Compensation Act 1985 (Vic); Transport Accident Act 1986 (Vic); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Barwon Spinners [2005] VSCA 33; Belgrave Heights Christian School v Moore [2020] VSCA 240; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398; Petkovski v Galletti [1994] 1 VR 436

Judgment:                  Leave granted to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Ryan SC Ms K Karadimas	Ryan Carlisle Thomas
For the Defendant	Mr R Kumar	Wisewould Mahony

HER HONOUR:

Background

1The plaintiff, who had worked as a train driver for Metro Trains between 2005 and April 2015, applied for a serious injury certificate under s 93 of the Transport Accident Act 1986 (Vic) (“the TAA”) in respect of psychiatric injury – chronic post-traumatic stress disorder (“PTSD”) – suffered as a result of a transport accident on 17 November 2014. His application was heard by his Honour Judge Coish on 30 April 2021.The plaintiff gave evidence and was cross-examined. There were no other witnesses. The parties tendered their court books. Prior to hearing final submissions, his Honour Judge Coish noted that the plaintiff had experienced a number of prior incidents, including fatalities and near misses, while working for Metro Trains and invited the plaintiff to consider whether he ought to proceed with his application under the TAA in respect of the last incident or ought instead to make an application under the relevant WorkCover legislation (the Accident Compensation Act 1985 (Vic) (“the ACA”)) in respect  of the cumulative impact on him of all of the incidents. The matter was stood down while counsel had discussions. Ms Ryan, for the plaintiff, then sought to have the application adjourned part-heard. During the intervening period, the plaintiff filed an Originating Motion seeking a serious injury certificate under the ACA in respect of the psychological impact of the various incidents involving fatalities or near misses experienced during the course of his employment. The plaintiff seeks leave to issue proceedings for pain and suffering and economic loss.

2The two matters were listed before me to be heard together on 28 November 2022 on the basis that the evidence presented to Judge Coish on the s 93 application would stand as the evidence in that application. Upon resumption of the s 93 application, counsel filed updated court books (that of the plaintiff included the transcript of the hearing before Judge Coish on 30 April 2021) and made final submissions.[1]

My decision in that application, granting a serious injury certificate under the TAA, is at Keay v TAC [2023] VCC 18.

The application under the ACA

3I then proceeded to hear the current matter. The plaintiff relied on the material tendered (including his affidavits) in the s 93 application as well as on two further affidavits sworn on 27 May 2021 and 4 July 2022,[2] in addition to further medical and medico-legal reports.

[2]        Plaintiff Court Book (‘PCB’) 69-87.

Plaintiff’s evidence

4In his further affidavits, Mr Keay stated that he lodged incident reports and/or WorkCover claims for all of the incidents involving fatalities or near misses. He reported some, but not all, of these incidents to his general practitioner, who treated him for his psychological conditions over the years. He had some time off following some of the incidents, but was expected by the defendant to return to work, and did so. After he reported the 17 November 2014 incident to his manager, he was told to return to work the following day. However, that incident was the last straw for him, and by April 2015 he felt that due to his psychological condition he could no longer cope, and he stopped working. His psychological condition has not improved. He continues to be teary and emotional, with low appetite, and with very depressed mood. He feels lonely, withdrawn and isolated. He has major difficulties sleeping most nights and wakes at night with anxiety and/or nightmares about the fatalities or near misses experienced at work. He is very tired and finds it hard to get through each day. His low mood limits his activities, and he tries to go for short walks daily. He misses work. He cannot work in any type of job because of his psychological condition and poor sleep, and he has lost his quality and enjoyment of life. His doctor has not offered any further treatment for his psychological condition, and he cannot afford to pay for a psychologist or psychiatrist.

5In cross-examination, Mr Keay was taken to a number of WorkCover stress claims made by him after 2005. He recalled a suicide by train at Cheltenham in January 2008, after which he saw a doctor and returned to work after a few weeks. He recalled a near miss on 28 January 2009, and said he thought he saw a psychiatrist twice after that incident. He did not recall a claim in respect of a near miss in early June 2010, but agreed that his treating doctor at that time was Dr Harris. He recalled a near miss on 15 February 2013 when a person tried to commit suicide by train but he was able to brake in time to avoid striking the person. He said he usually had a few weeks off work after each incident. He recalled a further near miss with a truck on 13 September 2013 at a level crossing and managed to stop the train. He said he would always follow his doctor’s recommendation concerning returns to work after incidents. There was a further incident on 14 January 2014 where a person ran in front of his train at a level crossing and was clipped by the train but able to crawl away.

6The final near miss occurred on 17 November 2014 (the incident the subject of CI- 21-04143). Mr Keay made a claim for impairment benefits in respect of that incident. Mr Keay said he last had psychological treatment with Mr Sullivan some years ago. He has diabetes, and some hearing loss. He said he manages household chores with difficulty due to his poor sleep, and that he likes a bit of gardening. He agreed that he stopped working for Metro Trains in 2016, and that he went to the Northern Territory twice after that. He said that since leaving Metro Trains he had not been well enough to return to work, for only one reason: his inability to sleep.

7In re-examination, Mr Keay said that he is awake most nights after reliving some of the gruesome incidents he has witnessed, and cannot get back to sleep for some time. He said he tried to return to work but could not keep going because sleep deprivation had deprived him of energy and resulted in mood swings. He said that he had tried sleeping medication recommended by his doctor but ceased taking it because it made him drowsy during the day.

Medical evidence

8Mr David Sullivan, psychologist, assessed Mr Keay on 5 June 2015 on referral from Dr Harris, and had concerns about his cognitive functioning. He took a history of trauma associated with earlier workplace incidents including workplace fatalities and near misses. He wrote to Dr Harris in March 2016 that the transport accident[3] would “continue to have an impact upon his general adjustment and his emotional responsivities”.[4] In a psychological report dated 13 November 2017, Mr Sullivan indicated that the cumulative impact of the traumatic incidents to which he had been exposed during his employment with Metro Trains resulted in a permanent fluctuating chronic adjustment disorder with anxiety and depressed mood which would require long term, if not life-long, psychological treatment,[5] and which rendered him unfit for all employment.[6] Mr Sullivan recommended ongoing medical, pharmacological and skilled trauma-focused psychological treatment for the foreseeable future.

[3]        The reference in the tendered material to the 17 November 2014 incident as a ‘transport accident’ has

been maintained in these summaries.

[4]        PCB 92.

[5]        Ibid 93.

[6]        Ibid 97.

9Dr Dominic Harris, general practitioner, saw Mr Keay in June 2015, and after a delay in obtaining test results, treated his pernicious anaemia with B12 injections. On 30 November 2017,[7] he reported that within 10 days of receiving the injections he had recovered albeit with residual, irreversible cognitive impairment which enabled him to self-care and live independently but not to work. Dr Harris opined that the trauma suffered in the transport accident was the “last straw” which set off a chain of events in the form of deterioration in mental state,[8] resulting in lack of self-care and poor diet which led to pernicious anaemia and a need for ongoing psychological support. He concluded that Mr Keay’s injuries “arose out of and during the course of his employment with Metro Trains”.[9]

[7]        Ibid 99.

[8]        Ibid.

[9]        Ibid.

10In a further report dated 20 December 2019, Dr Harris stated that after recovering from his anaemia, Mr Keay was able to provide a coherent account of the trauma suffered as a result of witnessing fatalities and near-misses while working as a train driver. Dr Harris diagnosed a severe adjustment disorder, triggered by the transport accident, “on a background of having witnessed fatalities on multiple occasions in his train driving role over the years”.[10] On 25 March 2021, Dr Harris confirmed that after six years Mr Keay was still suffering significant anxiety and insomnia which had worsened in the year since he stopped seeing his psychologist and which impacted on his quality of life.  Mr Keay described “waking early in a sweat, experiencing flashbacks of work related accidents, unable to get back to sleep”.[11] Dr Harris recommended long-term psychologist support.[12] In a further report dated 20 July 2022, Dr Harris opined that the transport accident caused Mr Keay to “finally decompensate mentally and physically”,[13] against a background of work related trauma. Dr Harris noted he continues to suffer significant anxiety, sleep disturbance and nightmares, “all related to work related trauma”.[14]

[10]        Ibid 101.

[11]        Ibid 102.

[12]        He repeated these conclusions in a further report dated 8 April 2022 at PCB 103.

[13]        PCB 104.

[14]        Ibid.

11On 10 May 2019, Professor Jennie L Ponsford, neuropsychologist, assessed Mr Keay and reported receiving a history from him of exposure to several traumatic incidents during his work as a train driver,[15] including one where a young man had his legs severed by the train, the most recent of which was the transport accident in late 2014. He had a few weeks off work, but these incidents stay on his mind. Professor Ponsford assessed Mr Keay as being of average intelligence, with improved cognitive function after treatment for his anaemia. She noted some mild residual impairments of abstract verbal and perceptual reasoning and a moderate reduction in speed of information processing. She considered that his cognitive impairment was largely linked with the pernicious anaemia, but opined that the impairment may have been exacerbated by his PTSD, anxiety and depression associated with his work as a train driver.   

[15]        Ibid 121.

12On 16 September 2019, Associate Professor Richard Stark, neurologist, examined Mr Keay and concluded that his cognitive function was significantly impaired when he first presented with B12 deficiency, and improved considerably after treatment for that condition. However, assuming that Mr Keay’s poor dietary intake prior to treatment was partially attributable to psychological factors (the impact of the transport accident), he considered that transport accident contributed to the severity of his B12 deficiency.  

13On 3 May 2019, Dr Michael Epstein, psychiatrist, reported to the plaintiff’s solicitors taking a history from Mr Keay to the effect that prior to and after the transport accident he had been exposed to a number of fatalities and/or near misses while working as a train driver. [16] Those incidents occurred in 1987 (fatality), 1990 (near miss), 1992 (pedestrian ran on to tracks and was cut in half), 1993 (suicide), 2008 (fatality), 2009 (near miss) and 2010 (near miss). The transport accident occurred on 17 November 2014. In January 2015, his train clipped a track trespasser but the man walked away. In February 2015, he braked in order to avoid a person standing on the tracks.

[16]        Ibid 106.

14After each of these incidents, he took a few weeks off work and had a few sessions of mandatory counselling.  Mr Keay complained of nightmares “about incidents at work”,[17] difficulty sleeping, flashbacks to “various events at work at least twice per week, especially to the [transport accident] and the incident in which the man was cut in half”.[18] He had lost self-esteem and confidence and had problems with reading and concentration. He was seeing his psychologist every two or three months. Dr Epstein diagnosed chronic PTSD “arising out of repeated exposures to traumatic incidents that occurred during the course of his employment as a train driver” (on country and suburban lines).[19] He also diagnosed a mild chronic adjustment disorder with depressed mood arising from the effects of his PTSD and his anaemia.  Dr Epstein noted that his mental state was not interfering with his social, domestic and recreational activities, but opined that psychological factors along with his residual cognitive impairment made him permanently unfit for employment. 

[17]        Ibid 114.

[18]        Ibid 115.

[19]        Ibid 117.

15On 17 March 2021, Dr Epstein reported that when he reviewed Mr Keay, Mr Keay complained of difficulty sleeping, exhaustion during the day, flashbacks to “various events at work”,[20] especially to the transport accident daily and the fatality in 1992 which caused him distress and some concern for his own safety. He was rarely seeing his former colleague friends, rarely played tennis or went fishing. Dr Epstein considered that he was still suffering from PTSD and an adjustment disorder with depressed mood, and required ongoing psychological counselling. Dr Epstein considered that his prognosis with respect to his psychological injuries was poor. He considered that Mr Keay’s work-related psychiatric injuries along would preclude a return to pre-injury duties or other employment.

[20]        Ibid 134.

16On 31 March 2021, Dr Epstein provided a brief report in which he responded to the opinion of Dr Justin Lewis dated 2 February 2021.[21] Dr Epstein disagreed with the diagnosis by Dr Lewis of a “recurrence of a pre-existing adjustment disorder with traumatisation features” and reaffirmed his diagnosis of PTSD.[22] However, he agreed with Dr Lewis that the transport accident of 17 November 2014 appeared to have been the “final straw” resulting in persistent traumatisation symptoms.[23]

[21]        Ibid 139.

[22]        Ibid.

[23]        Ibid.

17On 31 May 2022, Dr Epstein reported when reviewing Mr Keay, Mr Keay continued to complain of nightmares “about three of the fatalities and near misses”,[24] recurrent intrusive thoughts about work most nights, and poor sleep which meant that some days he did not get up due to fatigue. He was still cooking, cleaning and gardening, and was walking daily, but rarely went out expect to go shopping or to appointments. He avoided crowds. He no longer played tennis or went fishing due to fatigue. He felt lonely and isolated and rarely experienced any pleasure. He had little motivation. He saw his psychologist once in 2021 but then funding was stopped. Dr Epstein confirmed his diagnosis of PTSD which, in combination with his vitamin B12 deficiency, has led to a mild chronic adjustment disorder with depressed mood. He noted that Mr Keay’s social, domestic and recreational activities have deteriorated since he was last seen, due to his psychological condition. He felt that his psychological condition may worsen as he becomes more isolated. He recommended psychological counselling. He opined that Mr Keay’s work-related psychiatric injuries alone would prevent him returning to his pre-injury duties and limit his capacity to work in other employment.

[24]        Ibid 148.

18On 20 July 2022, Dr Epstein responded to questions from the plaintiff’s solicitor to the following effect.[25] Firstly, that Mr Keay has chronic PTSD that was exacerbated by the incident of 17 November 2014. Secondly, that he has a poor prognosis with respect to his psychiatric condition. Thirdly, that his employment with Metro Trains up until the incident of 17 November 2014 has been a significant contributing factor to his current psychiatric condition. Finally, that his incapacity for any employment arises out of the injury “sustained throughout the course of his employment from 20 October 1999 until 17 November 2014”.[26]

[25]        Ibid 153.

[26]        Ibid 154.

19Dr Justin Lewis reported on 2 February 2021 obtaining a history from Mr Keay of traumatic incidents prior to the transport accident including:[27] a fatal accident in 1987; a dual suicide attempt in 1990; an incident in 1992 when a young man was cut in half when he tripped under a train; an incident in 1993 when a man jumped in front of his train; an incident in 2018 when a young man ran in front of his train; and two further near misses in early 2015. He told Dr Lewis that he went into a “meltdown” after the transport accident,[28] and that this was the first time he recalled having ever developed traumatisation symptoms. He complained of recurrent nightmares and intrusive recollections of the accident as well as other incidents, and could not understand why the incident of 17 November 2014 could have affected him so greatly when previous incidents had not had the same effect. He told Dr Lewis that his symptoms of sleep disturbance, recurrent nightmares and intrusive memories of traumatic events had affected his general functioning and quality of life. He had also become irritable, agitated and angry since the transport accident. He was independent but socially isolated and spent most of his time at home. His mood was 5/10. He also complained of cognitive difficulties including difficulty focusing and maintaining information.

[27]        Ibid 157.

[28]        Ibid 160.

20On the basis of general practice records from 2010 referring to multiple presentations with pre-existing but intermittent work-related “traumatisation symptoms”,[29] Dr Lewis diagnosed chronic adjustment disorder with traumatisation features, but noted a differential diagnosis of PTSD of mild severity.[30]  He felt that Mr Keay’s prognosis was poor as his symptoms had not abated. Dr Lewis considered that Mr Keay was totally incapacitated for all employment due to his cognitive difficulties, lowered mood, poor motivation, sleep disturbance and fatigue. He noted that Mr Keay remained active with gardening and daily walking, shopping, driving and cooking.

[29]        Ibid 166.

[30]        Ibid.

21Dr Richard Prytula, psychiatrist, examined Mr Keay on 7 July 2015 and reported on 7 and 11 July 2015 that he presented with cognitive difficulties which complicated an assessment of his mental state.[31] He recommended neuropsychological assessment. Overall, Dr Prytula considered that Mr Keay had been exposed to multiple incidents during the course of his employment and may have suffered accumulative traumatisation, with a further aggravation occurring after the transport accident. In a supplementary report dated 7 July 2015, Dr Prytula opined that Mr Keay continued to “suffer from symptoms of traumatisation as part of an adjustment disorder with mixed anxious and depressed mood with features of traumatisation or as a mild form of PTSD”.[32] Dr Prytula did not consider the death of Mr Keay’s brother as likely to be of significance in comparison to the work-related exposure to trauma.[33]

[31]        Defendant Court Book (‘DCB’) 6-12.

[32]        Ibid 12.

[33]        Ibid.

22Professor Simon Crowe, neuropsychologist, assessed Mr Keay in August 2015 when he was undergoing treatment for pernicious anaemia.[34] He took a history of a series of workplace stresses due to suicides and railway accidents whilst he was driving his train. He noted the substantial degree of cognitive impairment found by Dr Prytula in July 2015, but considered that Mr Keay’s condition had improved since then, with a comprehensive neuropsychological assessment revealing mild attenuation of processing speed, working memory, memory functioning and perceptual reasoning in comparison with estimates of his pre-injury functioning. Professor Crowe considered that Mr Keay’s condition was not yet stable.

[34]        Ibid 13.

23Dr John Gill, psychiatrist, examined Mr Keay on 27 January 2016 and reported taking a history of four incidents prior to the transport accident.[35] After the transport accident, he reported an acute onset of disturbance, visualising that incident and others and being unable to sleep. His mood declined. His vitamin B deficiency was diagnosed and treated but his sleep remained impaired. He was a very poor historian. Dr Gill diagnosed elements of an adjustment disorder with anxiety, depression and post-traumatic stress symptomatology. Dr Gill attributed his condition to exposure to numerous traumatic incidents while working as a train driver, and particularly in the year prior to injury. At that time, Dr Gill did not consider that Mr Keay’s condition had stabilised. In a supplementary report in February 2016, Dr Gill noted, after reading further material supplied to him, that although Mr Keay suffered some personal stressors which aggravated his psychological condition, a significant contributing factor to his psychological presentation was his exposure to work-related traumatic incidents.

[35]        Ibid 26.

24Dr Gill re-examined Mr Keay on 7 July 2016 and found him to be more coherent than on the previous occasion.[36] He noted that Mr Keay had suffered post-traumatic stress symptoms in relation to various incidents over the year prior to his ceasing work in April/June 2016. He considered that Mr Keay still had some mild residual cognitive sequelae to vitamin B12 deficiency as well as an adjustment disorder with features of traumatisation. He considered that Mr Keay’s psychological condition remained a significant factor in his incapacity for work, which Dr Gill felt would be permanent.

[36]        Ibid 42.

25On 11 September 2017, Dr Jude Ugwu, occupational physician, opined that Mr Keay’s vitamin B12 deficiency was the primary cause of his cognitive impairment and inability to work in suitable employment.[37] He also opined that Mr Keay was not psychologically fit to work, or, rather “he is mentally psyched to retire”.[38]

[37]        Ibid 66.

[38]        Ibid 63.

26Dr Matthew Tagkalidis, psychiatrist, performed an impairment assessment on 3 June 2019.[39] He took a history from Mr Keay of involvement in around eight collisions and numerous near misses while working for Metro Trains. At times after these incidents, he took a few weeks off work and experienced dreams and intrusive recollections of the incident but then returned to work. He did the same after the transport accident of 17 November 2014, but stopped work in December due to the effects of pernicious anaemia, which was treated in mid-2015. He felt that he had been left with some residual cognitive problems. He described disrupted sleep, with nightmares of incidents a few times per week, and some tearfulness. He said he walked long distances daily and spent time in his garden. He was independent in his daily living activities. Dr Tagkalidis diagnosed a mild adjustment disorder with depressed mood and features of traumatisation, relevant to the transport accident.

[39]        Ibid 69.

27Professor Richard Fox, haematologist and oncologist, reported on 2 March 2021 that it was “likely/certain” that Mr Keay had developed pernicious anaemia prior to the transport accident on 17 November 2014,[40] as the condition is one which would have developed over several years before then. He noted that there is no known relationship between emotional stress or psychiatric illness to the development of pernicious anaemia and concluded that the suggestion that he might not have eaten as well as usual because of his PTSD was speculative. For this reason, he opined that the transport accident on 17 November 2014 did not contribute to the pernicious anaemia.

[40]        TAC DCB 5

28Dr Martin van der Linden saw Mr Keay on 25 May 2017 and 4 August 2021. He reported that when he first saw Mr Keay in 2017,[41] Mr Keay gave a history of witnessing numerous traumatic events including deaths and near misses during his work as a train driver. At that time, Dr van der Linden diagnosed an adjustment disorder. In August 2021, Mr Keay reported that after recovering from pernicious anaemia his psychological symptoms had intensified and become more distressing. He reported waking with nightmares of past traumatic events two or three times per night, feeling sleepy during the day, and experiencing flashbacks of seeing body parts after train accidents. He was moody, irritable, hypersensitive, cried easily and therefore avoided socialising. Dr van der Linden concluded that Mr Keay continued to suffer from an adjustment disorder with depressed and anxious mood (subsyndromal post-traumatic stress disorder).  He noted that Mr Keay gave a long history of some symptoms of PTSD, namely flashbacks, but was able to continue working. He considered that in the light of his current psychological symptoms, which produced chronic insomnia and excessive fatigue, Mr Keay could not return to his pre-injury job, and had suffered detriment to his social activities, but remained capable of performing his domestic duties. He recommended that Mr Keay receive psychiatric treatment for his nightmares.

[41]        PCB 169.

29Dr Alan Jager examined Mr Keay on Zoom on 17 May 2022. He took a history from Mr Keay of involvement in about 18 fatalities during his career as a train driver.[42] Mr Keay told him he last felt completely well in 2016, although there had been two earlier incidents. In the 2014 transport accident, Mr Keay reported seeing a small car on the tracks, braking heavily, noticing young girls bouncing up and down in the back seat. He managed to make eye contact with the driver of the car so that she could see the oncoming diesel train and drive forward rather than into it. He had a few weeks off and returned to work but developed pernicious anaemia and was put off work in 2017. He saw a psychologist between 2017 and 2020, which he found very beneficial, however he could not afford to continue treatment when the insurer stopped paying.

[42]        Report dated 21 June 2022.

30Mr Keay reported having nightmares, most commonly about an incident in which the train cut a person in half. He avoided train travel. Dr Jager diagnosed PTSD caused by a number of “critical incidents in the workplace” which precluded him from returning to work.[43]

[43]        DCB 90.

Material tendered and relied upon by the parties

31Counsel for the plaintiff tendered pages 10-55; 69-168; and 182 of it’s court book in respect of this application.[44] Counsel for the defendant tendered a court book comprising all of the material in the defendant’s court book in the TAC application and the reports of Dr van der Linden and Dr Jager, four incident reports, and the impairment benefits claim form in respect of the 17 November 2014 incident. The defendant relied on the reports of Professor Richard Fox, Dr Prytula, Dr Gill, Dr van der Linden, Dr Ugwu, Dr Tagkalidis, Dr Jager, and Professor Simon Crowe.

[44]        One court book was tendered by the plaintiff for both the VWA and TAC proceedings.

The issues

32In final submissions, Mr Kumar for the defendant, first argued that each of the incidents relied upon by the plaintiff in respect of which he had made WorkCover claims “must” be treated as transport accidents, and that, in accordance with the decision of the Court of Appeal in Belgrave Heights Christian School v Moore[45] at paragraph 50, the TAA does not permit an injured person to combine the effects of multiple transport accidents and to sue in respect of an injury said to have resulted from the totality of those transports accidents.  Rather, a serious injury certificate under the TAA would need to be sought in respect of each transport accident.[46]

[45] [2020] VSCA 240 (‘Belgrave’).

[46]        Petkovski v Galletti [1994] 1 VR 436.

33Mr Kumar argued that even though there were WorkCover claims made by Mr Keay in respect of the incidents relied upon by the plaintiff in this application, it was not open to the plaintiff to aggregate the effects of the injuries sustained in each incident. In this regard, he relied on the decision of the Court of Appeal in AG Staff Pty Ltd v Filipowicz[47] as well as the conclusion of Dr Epstein that the November 2014 incident caused an exacerbation of a previous chronic PTSD condition. For these reasons, the gateway under the ACA is not available to the plaintiff.

[47]        Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 among other cases.

34Mr Kumar also noted that Mr Keay’s evidence was to the effect that some of his flashbacks and nightmares related to an incident which predated his employment with Metro Trains.

35Finally, in respect of work capacity, Mr Kumar submitted that the plaintiff carried the onus of establishing a prima facie case of no current work capacity. He noted that Dr Jager and Dr van der Linden considered that from a psychiatric perspective Mr Keay retained a residual capacity for alternative suitable work.

36For the plaintiff, Ms Ryan submitted that there was no barrier to the making of an application under the ACA, as the application is framed as psychological injury sustained during the course of employment which came to a head after the November 2014 near miss. She submitted that the Court is not assisted by the cases relied upon by Mr Kumar, which were concerned with workers who sustained distinguishable physical injuries in separate compensable circumstances, which is not the case here. Rather, the appropriate analysis was that undertaken by the Court of Appeal in Belgrave, where the Court found that where the plaintiff was involved in multiple incidents travelling over bumps during the course of employment, which resulted in a back injury, the appropriate avenue was pursuit of a serious injury certificate under s 134AB of the ACA. In this case, the compensable circumstances comprise psychiatric injury sustained as arising out of Mr Keay’s course of employment as a train driver, which exposed him to traumatic incidents.

37Ms Ryan submitted that the weight of the evidence, including the evidence of Mr Keay, which was unchallenged, was to the effect that while Mr Keay suffered some psychological sequelae after each of the earlier incidents, he had no psychological treatment and returned to work within weeks. It was only after the 2014 near miss that he decompensated psychologically, suffered the psychological symptoms described above, including the nightmares and flashbacks, which did not abate, and  was unable to return to his lifelong occupation, and lost much of his enjoyment of life.

38Ms Ryan relied on the opinion of Dr Harris that since the 2014 incident, Mr Keay suffers from chronic anxiety, which is severe, as well as sleep disturbances and nightmares all related to his work, and that he is incapacitated for all employment. She also relied on the opinions of Dr Epstein and Dr Lewis to the effect that his psychological symptoms prevent him from working in any employment. She urged the court to accept Mr Keay’s evidence that he loved his work as a train driver and would have continued working at least until the age of 70, and even until today. She noted that the VWA did not submit that he has a capacity for suitable employment given his long history of work as a train driver.

39In terms of pain and suffering consequences, Ms Ryan submitted that the weight of the evidence is to the effect that he has a severe psychological condition comprising nightmares, flashbacks, intrusive thoughts, disturbed sleep, mood swings and tearfulness, and that his prognosis is poor. He has become reclusive, no longer engages in former past times like gardening or walking for long periods. 

Findings and reasons

40On the authorities,[48] the process of separately analysing each injury  (determining the impairment consequences and whether those consequences meet the test for serious injury) is suitable where there are identifiable and discrete physical  injuries but may not be suitable where the injury involves a progressive build-up over multiple occasions, such as repetitive strain/psychological stress style injury producing either a physical or mental injury, as is the case here.[49] Those authorities support the contention that if a worker engages in a system of work in which the worker sustains repeated insults to a single body part, or to the psyche, and the cumulative damage produces serious injury consequences for the worker, leave may be obtained to sue for the aggregated result of the repeated insults or strains.

[48]        Grech v Orica Australia Pty Ltd (2006) 14 VR 602 (‘Grech’); O’Neill v TD Williamson Aust Pty Ltd [2008]

VSC 398 (‘O’Neill’).

[49]        See for example St Laurence Community Services (Barwon) Inc & Ors v Gledhill (one

of the appeals that made up Barwon Spinners [2005] VSCA 33); Belgrave [77].

41For this reason, in cases of repetitive strain or psychological stress cases, the focus will be on causation, that is, on determining whether the strains, which take place over a period of time, materially contribute to the relevant impairment consequences. It is a question of fact whether multiple cumulative incidents must be treated as separate injuries or may be aggregated as a single compensable injury, and this is especially relevant in the case of psychiatric injuries.[50]

[50]        Grech (2006) 14 VR 602; O’Neill [2008] VSC 398.

42In this case, arguably a number of psychological insults have occurred, each of which has been the subject of a WorkCover claim. However, in the case of each bar the last of the psychological insults, Mr Keay has no ongoing symptomatology or psychological treatment and was able to return to full-time work in his lifelong occupation. 

43Although Belgrave involved physical injury, I consider that the reasoning therein concerning repetitive strain or process injury is equally applicable to psychological injury suffered as a result of multiple exposure to traumatic incidents. I consider that it is open to the plaintiff to seek a serious injury application under s 134AB of the ACA.

44I am satisfied that the appropriate characterisation of the incidents relied upon in this application by the plaintiff is that of psychological  injury occasioned by a system of work in which he suffered multiple traumas in the course of employment, which culminated, after the incident of 17 November 2014, in PTSD and/or an adjustment disorder whose severity made him permanently incapable of any work, and also seriously impacted his enjoyment of life.   

45Whilst there may be other causes of his total incapacity for employment, such as a residual cognitive impairment flowing from his pernicious anaemia, I consider the weight of the recent psychiatric opinion (from Dr Epstein and Dr Lewis) to be to the effect that Mr Keay’s employment was a material contributing factor to the development of his psychological injury (whether chronic PTSD and/or adjustment disorder) and its sequelae in terms of pain and suffering and work capacity, which crystallised after the incident of 17 November 2014. Their opinions are consistent with Mr Keay’s evidence, which I accept,  that although he saw a doctor and had time off in relation to some of the incidents the subject of this application, he received no psychological treatment and was able to return to work within weeks as a train driver. I accept his evidence that it was only after the incident at work on 17 November 2014 that he began to experience nightmares, flashbacks and other psychological symptoms related to incidents (fatalities and near misses) which occurred during the course of his employment with the defendant, which continue to disrupt his sleep and his peace of mind, to the extent that he was unable thereafter to return to his lifelong occupation, and that he has suffered a permanent and marked loss of enjoyment of life and reduction in recreational activities.

46I am satisfied on the evidence that, as at the date of the hearing, Mr Keay has a long term mental or behavioural disturbance or disorder whose consequences, in terms of pain and suffering, are more than serious, to the point of being severe.

47I am also satisfied that given his lifelong occupation as train driver and the psychiatric evidence referred to above, that he has no capacity for employment. I am therefore satisfied that he has permanently suffered a loss of income of 40% or more, and that, in terms of loss of earning capacity, the consequences of his long-term mental or behavioural disturbance or disorder, are more than serious, to the point of being severe.

Conclusion

48For these reasons, leave is granted to the plaintiff to bring proceedings for the recovery of damages in respect of the psychological injury suffered during the course of his employment with the defendant.

49I reserve the question of costs.