Keenan v TAC

[2012] VCC 737

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-10-06264

JOHN KEENAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29 and 30 May 2012
DATE OF JUDGMENT:	19 June 2012 (Revised)
CASE MAY BE CITED AS:	Keenan v TAC
MEDIUM NEUTRAL CITATION:	[2012] VCC 737

REASONS FOR JUDGMENT

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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – consequences of injury – mental or behavioural disturbance or disorder – whether the consequences of injury were at least very considerable
LEGISLATION CITED – Transport Accident Act 1986
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833

JUDGMENT – Leave granted to the plaintiff pursuant to s.93(4)(d) of the Transport Accident Act 1986 to bring proceedings for the recovery of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Keogh SC with Mr G Chancellor	Maurice Blackburn Pty Ltd
For the Defendant	Mr D Curtain QC with Ms N Wolski	Norton Rose Australia

HIS HONOUR:

1       On 13 July 2007, John Keenan was the driver of a commercial bus involved in a collision with another vehicle (“the collision”).  He alleges that as a consequence of the collision, he has suffered a psychiatric and/or psychological injury. 

2       He seeks the leave of this Court to issue a proceeding to recover damages in respect of that injury. 

3 His right to do so is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”).  In order to obtain such leave, he must satisfy the Court that his injury is serious.[1]

[1]Section 93(6) of the Act

4 The term “serious injury” is defined in s.93(17) of the Act (insofar as is relevant to this application) as:

“(c)severe long-term mental or severe long-term behavioural disturbance or disorder.”

5       Mr Keenan must satisfy the Court that the consequences of his injury are serious.  In order that an injury be considered to be serious:

(a)the consequences of the injury must be serious to him;

(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;

(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]

[2]          Humphries & Anor v Poljak [1992] 2 VR 129 at [140]

6       The word “severe” is a stronger word than “serious”.[3]

[3]Mobilio v Balliotis [1998] 3 VR 833, per Brooking JA at 846

7       Mr Keenan alleges that the consequences of his non-physical injury satisfy the threshold test as being severe and at least very considerable.  The defendant denies this is so. 

8       The matters to be determined in this application are:

(a)What is the nature of any non-physical injury suffered by Mr Keenan in or as a result of the collision?

(b)What are the consequences of such injury for him?

(c)Whether his injury is a “serious injury” as defined in the Act?

Background

9       Mr Keenan is aged sixty-nine.  He is the father of four adult children, grandfather of fourteen and great grandfather of one child.  He has been married on three occasions, each of which was unsuccessful, in the sense that they resulted in eventual separation and dissolution. 

10      He was educated to the age of fifteen and has worked since that time in a variety of jobs.  He initially worked as a labourer but over the years worked up to and assumed responsible positions including that of a spare parts manager with Toyota, a dealer and development officer with Shell and later embarked on a twenty-year career as a self-employed motor vehicle dealer.  From 2002 to 2004, he was employed as a driver by the Salvation Army. 

11      From December 2004, he was employed as a bus driver with Ventura Bus Lines, initially as a casual employee and, from mid-2005, as a full time bus driver.  He was driving a bus in that capacity at the time of the collision. 

12      Physically, he has enjoyed relatively good health up until relatively recent times.  He has been treated successfully for ulcerative colitis.  In about 2007, he was diagnosed with prostate cancer and underwent surgery later that year.  The surgery appears to have been successful. 

13      In about 2003, his marriage to his third wife struck trouble.  Over the following two to three years, he was involved in a bitter, and at times, violent marital break up.  At one point he was threatened by his wife with a knife.  On another occasion, he was involved in a physical altercation with his wife’s three adult sons from an earlier marriage.  I am satisfied that the break up of this marriage was distressing and stressful for him. 

14      In August 2003, Mr Keenan consulted a registered psychologist, Sharon Snowdon.  Between August 2003 and January 2007, he underwent some twenty counselling sessions with her in relation to marriage problems.  During that period, the violent incidents referred to above occurred. Police became involved when his wife set fire to furniture at the home.  She was charged with one or more offences.  They separated.  Family Court proceedings ensued.  There was a court hearing in 2007 which, in his opinion, produced a poor result for him. 

15      In late 2004, Ms Snowdon conducted tests on Mr Keenan for Depression and Anxiety.  A document entitled “The Burn’s Depression Checklist” dated 8 December 2004[4] indicated that he then suffered moderate Depression.  A Burn’s Anxiety Inventory Questionnaire was completed by Mr Keenan on 8 December 2004[5].  He complained of:

[4]DCB 31

[5]DCB 33

(a)anxiety, nervousness, worry or fear – a lot;

(b)sudden, unexpected panic spells – a lot;

(c)feeling tense, stressed, uptight or on edge – a lot;

(d)difficulty concentrating – moderately;

(e)fears of physical illness, heart attack or dying – moderately;

(f)pain, pressure or tightness in the chest – moderately;

(g)trembling or shaking – a lot; and

(h)feeling tired, weak or easily exhausted – a lot.

16      Mr Keenan continued to work as a bus driver through the difficult period of his marriage break up.  On 19 January 2005, Ms Snowdon recorded that he was enjoying his work with the bus company.[6]  On 4 July 2005, he reported to her that his job was going well.

[6]Exhibit E

17      Ms Snowdon saw Mr Keenan for counselling regularly through the first half of 2005.  After July 2005, she saw him only once prior to the collision, on 16 January 2007, at which time she noted that he was due to go to court in relation to the Family Law issues in a couple of weeks’ time and that he was anxious about the outcome of the case.  She did not see him again until 20 November 2007, approximately four months after the collision.

18      In about mid 2006, Mr Keenan witnessed an accident whilst driving a bus.  That accident did not directly involve him.  A tow truck overtook his bus and collided with a pedestrian.  Mr Keenan saw the impact and observed a large quantity of blood.  He was told the pedestrian had died.  He described that incident as being very traumatic.[7] He missed no time from work as a consequence of that 2006 incident.

[7]PCB 9

19      Prior to the collision, he described himself as a very active and fit person.  He worked up to 50 hours per week.  Hours were reduced to 40 per week as a result of roster changes.  He regularly played golf, rode a bicycle, played cricket, read and walked his dog.  He had undertaken a ceramics course and enjoyed making ceramic figures.  He socialised with others who were involved with ceramics.

The Collision

20      On Friday, 13 July 2007, whilst driving a bus in the course of his employment, he was involved in an intersection collision.  Another vehicle collided with the side of the bus.  There were three occupants in the car.  Following the collision, the car had fumes and smoke rising from it.  Mr Keenan feared there could be an explosion.  He immediately used his two-way radio to contact his employer’s depot and spoke there with the operator, Mr Ha.  He reported that he had been involved in an accident and requested the operator to contact emergency services immediately.  The operator responded by suggesting that Mr Keenan use his own mobile phone to call emergency services.  His mobile phone battery was low.  This apparent delay appears to have caused a high degree of frustration and anger in Mr Keenan.  He was fearful of an explosion of the car and also his bus.  He pleaded with Mr Ha and at one point broke down in tears as a consequence of the lack of response from him and what he perceived to be a refusal to assist him when he had been involved in a serious collision.  In his affidavit, Mr Ha made no mention of that exchange.  It was not denied.[8]

[8]DCB 2

21      Mr Keenan observed an occupant of the vehicle being pulled from the car, and saw that he was covered in blood and screaming in pain.  He found this very disturbing.[9]  He observed the passenger sitting in the rear of the car was unconscious and feared that he might have been dead.  He noted that the driver of the car absconded from the accident scene.  In due course, emergency services vehicles did attend.

[9]PCB 10

22      A supervisor from his employer attended approximately one hour after the accident with another co-worker.  He was advised to return to the depot and did so in their car.  He assumes that one of his co-workers drove the bus back to the depot.

23      On his return to the depot, he describes himself as being in “a very bad way”.[10]  He was asked to complete an incident report but states that he was shaking so much that he could not fill in the report and Mr Ha completed it for him. 

[10]PCB 11

Post Collision

24      Mr Keenan had the weekend off, as scheduled.  He worked on the following Monday and worked his normal shift.  He described feeling unwell, and experiencing flashbacks and headaches.  Prior to the collision he had arranged for three weeks of annual leave, which he took soon after.  He returned to work in early September 2007.  He states that his mental state had deteriorated.  He had trouble dealing with customers, which he had not had before.  He attended Dr McKay, his general practitioner, in November 2007 and ceased work soon after. 

25      He attempted a return to work in May 2008.  He could not cope driving buses and was put on non driving duties, including the timing of buses and dealing with customers, some of whom were irate.  He worked in this period for about six weeks and left as his level of upset increased.  He has remained off work since.

26      In November 2007, he again consulted Ms Snowdon.  She has seen him for counselling and treatment regularly since then.  Presently she sees him monthly.

27      In his first affidavit, he described his problems as at May 2010 as having nightmares and flashbacks, panic attacks, depression, anxiety, irritability, tremor in his left arm, trouble sleeping, trouble concentrating, forgetfulness, and loss of libido, energy and motivation.[11]

[11]PCB 12

28      He stated that since the collision he had been able to get back to golf and walking but does not do them with the same intensity.[12] He said he has low energy and is lethargic.  I shall return to consider more fully the consequences of his injury upon him later in these reasons. 

[12]PCB 13

29      He has continued with counselling from Ms Snowdon and has attended upon Dr McKay from time to time up until his retirement last year.  Since then, he has attended at the Monbulk Family Clinic on a few occasions where he has seen doctors, including Dr Van Haaster.

30      At no time did Dr McKay refer him to a psychiatrist for treatment or opinion.  Ms Snowdon considered that she could not give such a referral and that it was inappropriate for her to make such a recommendation to the general practitioner.

Diagnosis of Injury

31      Evidence provided by Dr McKay is scant.  In his report of 20 May 2008,[13] he states that he has read a report Ms Snowdon’s report dated 15 April 2008 and agrees with her history and observations.  In his letter of 14 May 2011 he discloses that he is seventy nine years old and about to retire.  His evidence amounts to no more than that he agrees with Ms Snowdon.

[13]PCB 28

32      In her report of 15 April 2008, Ms Snowdon stated that Mr Keenan suffered from chronic Post-Traumatic Stress Disorder (“PTSD”).  She based that opinion on four diagnostic criteria:

(a)    that he had been confronted with an event that involved threatened death or serious injury to himself or others and that his response involved intense fear and helplessness;

(b)    that he had recurrent and intrusive distressing recollections of the accident;

(c)     that he had post-accident conditions of avoidance of thoughts and feelings associated with the accident; he experienced substantial anxiety when relating details of it;  he physically avoided the scene of the accident; he had difficulty expressing positive feelings; he had markedly diminished interest or participation in activities and lack of motivation;

(d)    that he had persistent symptoms of trembling “inside”, disturbed sleep, difficulties in concentrating, irritability, and feelings of hypervigilance.[14]

[14]PCB 36

33      Ms Snowdon considered that Mr Keenan’s condition had been exacerbated by his having continued to work as a bus driver following the collision.  His capacity to work as a driver had been adversely affected.  Driving resulted in fatigue and he found it stressful dealing with customers.  At that time, she considered the prognosis in the short to medium term to be moderate providing he was not exposed to any further undue stressors.[15]

[15]PCB 37

34      She treated Mr Keenan primarily with Cognitive Behavioural Therapy and has done so for about four years.  Whether she has achieved a great deal of success with such treatment is debatable.

35      In her reports of 15 June and 14 November 2008 and 16 January 2009, she noted his complaints of deterioration in his condition especially when driving.[16] She considered he was unfit for driving work but that non driving work with minimal stress was suitable.  She suggested work as a storeman.  She considered work would benefit his self esteem.

[16]PCB 39; PCB 40; PCB 43.

36      In May 2010, she considered Mr Keenan continued to suffer from PTSD and also a Major Depressive Disorder (“MDD”).[17]  She thought his condition would improve if he could find work in a supportive environment with minimal stress.

[17]PCB 45

37      In her most recent report dated 14 April 2012, she considered that he continued to suffer from PTSD but that he no longer met the criteria for MDD.

38      Ms Snowdon gave oral evidence and was cross-examined. She had treated Mr Keenan prior to the collision in respect of relationship problems during the period of the break down of his marriage to his third wife, Violet. Mr Keenan had become somewhat depressed over that time and had suffered from anxiety at times when there were significant stressors.[18] She considered that his anxiety during that earlier period was of a different type to that suffered by him after the collision.[19] When she saw him in January 2007 (about six months before the collision), he was doing quite well. By then, she considered that he had accepted the breakdown of his relationship and was functioning well as a bus driver and in day-to-day living.[20]

[18]T 131

[19]T 132

[20]T 135

39      She considered that he satisfied the preconditions required for a diagnosis of PTSD.[21] In particular, she considered he was hypervigilant when driving, which lead to exhaustion and anxiety.

[21]T 150-164

40      Ms Snowdon continued to see Mr Keenan every four weeks or so.

41      Ms Snowdon had noted in 2004 that he had complained of trembling but her recollection was that that was trembling of a different type to that experienced by him since the collision. Her evidence was that the trembling experienced since was an internal trembling as opposed to a trembling of hands.[22] She described trembling or tremor within the torso as being common with panic attacks and anxiety.[23] She considered his panic attacks were co-morbid with his PTSD.[24]

[22]T 140-1

[23]T 207

[24]T 207-8

42      Dr Paul Kornan, psychiatrist, saw Mr Keenan at the request of his solicitor in April 2009.  He considered that he presented with chronic PTSD of moderate intensity, at times being moderately severe.

43      Dr Michael Epstein, psychiatrist, saw Mr Keenan at the request of his solicitors in April 2011.  He concluded that he suffered from PTSD associated with Panic Disorder and, as a consequence, had developed a Chronic Adjustment Disorder with Depressed Mood.  He considered that his condition had arisen out of the collision.[25]

[25]PCB 70

44      In July 2008, about a year after the collision, Dr David Weissman examined Mr Keenan at the request of a WorkCover claims agent.  The history taken by him included nothing of psychological counselling before the collision.  His opinion is based upon there being no past psychiatric history and no obvious pre-existing psychiatric or psycho-social condition or impairment.[26]  He concluded that Mr Keenan had developed a Chronic PTSD of moderate severity, associated with, or complicated by, depression.[27]

[26]DCB 8, 13

[27]DCB 13

45      Dr Timothy Entwisle, psychiatrist, saw Mr Keenan twice at the request of the employer’s claims agent, in December 2007 and November 2010.  On the earlier date, he diagnosed a depressive condition with features of anxiety and depression and that the collision was a contributing factor to that condition.[28]  Other contributing factors were said to be later incidents involving irate customers who abused or threatened him and lack of support from his employer.[29]  On the latter occasion, Dr Entwisle diagnosed an Adjustment Disorder with Depressed Mood and features of traumatisation.[30] In neither report did he refer to PTSD.  He did not explain in his report what he meant by the term “traumatisation”. I am unable to conclude whether there is any link between that expression and PTSD.

[28]DCB 18

[29]DCB 17, 18.

[30]DCB 24

46      On the basis of those opinions I conclude that, on balance of probabilities, Mr Keenan has suffered PTSD since soon after the collision and is currently suffering from that condition with Depression and Anxiety. It may be that his Depression and Anxiety are contributed to by an Adjustment Disorder.

47      Counsel for the defendant submitted that Ms Snowdon’s evidence was tainted by reason of her failure to disclose in her reports that she had treated Mr Keenan on a number of occasions prior to the collision.  Her omission to do so was indeed surprising and I found her attempts to explain it unconvincing.  Nevertheless, I do not consider that I should disregard her evidence.  Much of it is supported by the psychiatrists referred to above.  The situation might be different if she was the only expert relied upon by Mr Keenan.

48      There is no doubt that Mr Keenan suffered from emotional problems from 2003 at about the time his third marriage came under stress.  He saw Ms Snowdon on some twenty occasions up to January 2007.  I note that he saw her:

·     on five occasions in 2004, mainly in the latter half of that year;

·     on seven occasions in 2005, but not after July in that year;

·     on no occasions in 2006;

·     on one occasion in January 2007, when he was complaining of anxiety just before a scheduled Family Court hearing. 

49      He did not see Ms Snowdon again until after the collision.

50      I accept Ms Snowdon’s evidence that his pre-collision complaints and attendances were not connected to the condition suffered by him and the symptoms he displayed after the collision.  Those earlier issues had not prevented him from carrying out full time employment duties nor required medication of any sort.  She considered that he had essentially recovered from the problems encountered by him at the time of the breakdown of his marriage.

51      I conclude that his earlier attendances on Ms Snowdon and the symptoms experienced by him prior to the collision have little relevance to his symptoms since.  They may demonstrate that he is a person with some vulnerability to anxiety arising from stressful situations.  There is no evidence before me indicating that events prior to the accident were a significant contributing factor to his current condition.

Consequences of Injury

52      Counsel for the defendant noted that Mr Keenan had never been referred to a psychiatrist by any general practitioner who had seen him since the collision.  This is a matter that is relevant but not conclusive in determining the severity of the consequences of his injury.

53      Mr Keenan’s evidence as to those consequences can be summarised as follows:

(a)He has had regular flashbacks concerning the collision and its aftermath;

(b)He has had regular nightmares concerning the collision;

(c)He suffers depression, although this has improved to some extent in recent years.  He regularly takes anti-depressant medication;

(d)    He suffers Anxiety, including a form of panic attacks with tremors within his torso. Ms Snowdon referred to him suffering from a general level of anxiety that affects everything he does;[31]

[31]T 199

(e)    He has difficulty sleeping.  He takes sleeping medication;

(f)     He suffers a loss of libido;

(g)    He has lost energy and motivation;

(h)    He has lost confidence and self-esteem;

(i)     He has difficulty concentrating and is forgetful;

(j)     Importantly, he has not been able to work in his pre-collision position as a bus driver.  He has difficulty dealing with people.  He had intended to continue driving until at least the age of seventy.  His employer employs a number of persons over seventy.  Ms Snowdon considered he had no capacity for work as a bus driver, nor for work dealing with customers;[32]

[32]T 203-4

(k)     He fatigues easily.  He can only drive for about an hour.  He suffers stress when driving;

(l)     He has been unable to continue with his ceramic sculpture.  He has been unable to complete a project that he commenced before the collision;

(m)   He spends most days at home.  He reads but cannot concentrate for long;

(n)    He is stressed by other unrelated accidents and injuries to others if they are brought to his attention.

54      Mr Keenan was not challenged concerning these matters in cross-examination and I accept his evidence concerning these consequences.

55      He has been able to play golf reasonably regularly.  Ms Snowdon has encouraged him to do so in an attempt to have him socialise more.  He has attempted to play in a calmer fashion and not as aggressively as he previous did.  So far he seems to have been able to achieve this.

56      He has formed a relationship with a lady who he had originally met prior to the collision as part of his ceramics group.  He stays at her home two or three nights per week and the balance of the week with his sister. 

57      He was able to drive a vehicle and tow a caravan from Melbourne to Cooktown in far North Queensland in mid 2011.  He was alone.  He had to stop driving every hour or so.  When he drives, he clenches the steering wheel extremely tightly and becomes stressed, hypervigilant and rapidly exhausted.  Nevertheless, he was able to complete the journey.

58      He states that even catching a train is a big effort for him.  He allows himself extra time in case he becomes stressed and has to get off the train.

59      The affidavit of his daughter, Michelle Margaret McKillop[33] confirms the changes she has observed in her father since the time of the collision.  I observed Mr Keenan give evidence.  He appeared to me to be a nervous and intense person.  He presented his evidence in a flat, monotone manner.  I note Ms McKillop’s description of him prior to July 2007 as confident, charismatic and outgoing and the changes she has observed since.  I accept that evidence.

[33]PCB 20

60      Counsel for the defendant referred to the Depression Checklist and Anxiety Inventory prepared by Mr Keenan at the request of Ms Snowdon in December 2004.[34]  These indicated that, at the time, he suffered from moderate Depression and some symptoms of Anxiety similar to those of which he now complains.  I accept the evidence of Mr Keenan and Ms Snowdon that he had recovered substantially and possibly completely from those symptoms by early 2007 if not before. 

[34]DCB 31 - 34

61      Many questions put to Ms Snowdon in cross-examination were apparently put in an attempt to establish whether she would describe Mr Keenan’s PTSD, Depression or Anxiety by a particular adjective such as mild or moderate as opposed to severe.  However, such descriptions are of limited assistance to me in determining this application.  I am required to assess the consequences of the injury, not the injury in isolation.

62      Much weight was placed in submissions for the defendant on the failure of Mr Keenan’s general practitioners to refer him to a treating psychiatrist.  Contrary to those submissions, I do not consider I am able to conclude that those doctors considered the consequences of his injury to be minor.  Dr McKay’s reports were almost completely lacking in detail and substance and were of little assistance, one way or the other.  However, I do not consider that those inadequate reports should be taken to reflect negatively on his application here.  Dr van Haaster has only seen Mr Keenan on a few occasions and has had little to do with the injury the subject of his claim.  She has not made any assessment of his condition and states that, if she did, she would involve a psychiatrist in connection with both evaluation and treatment.  The fact is that Mr Keenan has not sought such an assessment from Dr van Haaster.  I do not interpret this as an indication that his problems are insignificant but more of a lack of understanding on his part as to different forms of treatment that might be available for him. 

63      It was also submitted that neither Ms Snowdon nor any medical witness had opined that Mr Keenan was unfit for all work.  Mr Keenan had stated that he had at times contemplated returning to work and had made some limited enquiries in the past.  However, I consider there is a substantial difference between his pre-collision position where he was fit to and intended to continue on working in a job that he had and which he enjoyed, and his present position where he would be looking to start from scratch and in a different field.  I am not restricted by provisions such as those contained in the Accident Compensation Act 1985, including the definition of “suitable employment” in s.5 of that Act or by the provisions of s.134AB relating to pecuniary loss.

64      I consider that Mr Keenan’s injury, combined with his age and lack of formal qualifications, make it extremely unlikely that he will return to the work force.

65      I accept that he intended to work until at least age seventy and that his former employer employs persons over that age as drivers.  This evidence gets further support from Mr Picone.[35]

[35]PCB 25-6

66      But for his injury, I consider he would have continued to earn income of approximately $40,000 or more for several more years.[36]  Accordingly, I am satisfied that Mr Keenan has suffered, and will continue to suffer a substantial pecuniary loss as a consequence of his injury.

[36]PCB 27

67      The defendant questioned Mr Keenan’s credit on the basis that he had not disclosed an earlier shoulder injury when applying for the position of bus driver with his former employer in 2004.  I consider this probably reflects motivation to get the job at that time, a concern that he might miss out if he disclosed an earlier injury, and also a valid belief that the shoulder had fully recovered and would not impair his ability to drive a bus.  I do consider that it reflected upon his credit in the context of this application.

68      I consider that the pain and suffering consequences and pecuniary loss consequences referred to above, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.  There was no evidence that his condition was likely to improve in the foreseeable future.

Conclusion

69      For the reasons expressed above, I am satisfied that Mr Keenan has suffered a serious injury as a consequence of the collision.

70 Pursuant to s.93 (4)(d) of the Act, leave is granted to him to bring proceedings for the recovery of damages in respect of the injury suffered by him as a result of a transport accident occurring on or about 13 July 2007.

71      I shall hear the parties with regard to costs.

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