Kipping v Transport Accident Commission
[2022] VCC 1080
•15 July 2022
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02083
| GRAHAM GEORGE KIPPING | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 11 and 12 July 2022 | |
DATE OF JUDGMENT: | 15 July 2022 | |
CASE MAY BE CITED AS: | Kipping v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1080 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – Psychiatric injury – Impairment consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission v Katanas [2017] HCA 32; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Leave granted to the plaintiff to commence a common law proceeding
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds QC with Mr R Kumar | The Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff, Mr Graham Kipping, is a 67-year-old divorced man, who lives on and runs an approximately 250-acre farming property in Merton, some 30 kilometres west of Mansfield. He has two adult sons who live in Heathcote.
2Over the years, the plaintiff worked in administrative-type employments, raised his sons, and engaged in farm work, both on his own farm and some part-time work as an employee on a different farm. He retired from paid administrative work to run his farm, but still works about one day a week off his farm. Perhaps consistent with his background as a farmer, his interests have essentially been outdoor interests, including spending time in the high country, shooting and sailing.
3One of the plaintiff’s main interests had been with the Country Fire Authority (CFA). He was an active member of the Merton CFA brigade for some four decades, and by April 2016 was the CFA captain of the Merton brigade.
4Returning to the plaintiff’s general health, in an affidavit sworn by him on 1 April 2019[1] he described his mental health as good, but described an episode of depression in 2002, in the context of a marriage breakdown. In fact, and in addition to that period of impaired mental health, the plaintiff also had further mental health difficulties in approximately 2007/2008 at about the time that the younger of his sons left home.[2]
[1]Court Book (“CB”) 12.
[2]CB 227.
5Against that background, as an active member of the CFA the plaintiff was required to attend events such as bushfires and car accidents as needed. One such traumatic car accident occurred on 14 April 2016 (“the accident”). The accident and the aftermath of it was described by the plaintiff in his first affidavit as follows:
“On the day of the accident I received an emergency page at about 7:00am that there had been a head-on collision involving a B Double truck and a small sedan and as Captain of the local CFA I was required to attend. When I got to the collision with the crew I noticed the front trailer of the B Double was on fire and as I got closer I observed the female driver of the sedan was dead and ‘ripped apart’. The driver of the B Double was burnt.
I directed my crew to take an appliance to deal with the truck fire which had the first of two trailers aflame. I intended for them to seek to douse this fire and to prevent the second trailer from becoming alight. I was then told the front of the truck was laden with batteries and had exploded. My crew needed to get out immediately, due to the risk that the second trailer would catch alight or also explode, coupled with uncertainty as to the extent of danger posed by both the smoke and fire coming from the first trailer. I had to get my crew away to safety quickly. The whole incident was extremely traumatic.”[3]
[3] CB 14.
6In the several days following the accident, the plaintiff developed psychological symptoms. He then attended his general practitioner in Mansfield, Dr William Twycross.[4] Dr Twycross soon after described the plaintiff as suffering from a significant post-traumatic stress disorder related to the accident.
[4]CB 32.
7The plaintiff was then referred for counselling, which he had with Ms Gill Dolan at Austin Health.[5] In addition he was referred to see a psychologist, Ms Bridget Moller, at Mansfield Psychology. Since then, the plaintiff has had intermittent psychological treatment or counselling. He has had continued general practitioner support and ongoing prescription medication.
[5]CB 34.
8The plaintiff has experienced several other stressful events in his life. In 2018, his ex‑partner committed suicide, and around the same time his brother was killed in a tractor accident. He also experienced a frightening event in August 2021, when two intruders came onto his farm, and he was involved in an altercation with them (“the farm intrusion”). Since the accident, the plaintiff has developed an alcohol dependency which has fluctuated and required specialist treatment. The connection between his alcohol dependency and the accident is one of the factual issues in dispute.
This proceeding
9Against that background, this is a proceeding brought by the plaintiff pursuant to s93 of the Transport Accident Act 1986 (“the Act”) seeking the leave of the Court to commence a common law proceeding.
10Specifically, the plaintiff claims to have suffered a “serious injury” within the definition contained in s93(17)(c) of the Act, being a “severe long-term mental or severe long-term behavioural disturbance or disorder”.
11The legal principles are otherwise well known and are not in dispute.[6] The proceeding was conducted in the usual manner. The parties tendered a joint court book containing affidavits sworn by the plaintiff, a redacted affidavit from his friend Mr Ross Harlock, and various medical reports and documents. In addition, the plaintiff gave oral evidence.
[6] The parties agree that the approach to resolve this proceeding is as set out in Transport Accident Commission v Katanas [2017] HCA 32. See also Rowe v Transport Accident Commission [2017] VSCA 377 at paragraph 82 and 83.
12I have considered all the evidence and the transcript of the plaintiff’s oral evidence, but I shall only refer to it to the extent necessary in these reasons.
Credit
13It is convenient at this early stage to deal with the issue of the credit of the plaintiff. My assessment of the plaintiff in the witness box was of a forthright and direct man, who made appropriate concessions, particularly in respect to his alcohol consumption and other events that had occurred over the years. I do not consider this is a case where the plaintiff’s credit is in issue, and the defendant did not really contend otherwise.
14As has been said many times, in assessing the “seriousness” of an injury the credit of the plaintiff is a relevant factor.
15The issues in this proceeding are more to do with separating out the impairment consequences from the accident as opposed to the other stressful events that have occurred in the plaintiff’s life, but that is not a credit issue.
A consideration of the evidence
16It is unnecessary to deal with all the evidence in detail. That is because a lot of it is not in dispute.
17There is no dispute that the accident occurred. There is no dispute that it was a particularly traumatic event and that the plaintiff soon after developed a post-traumatic stress disorder.
18Equally, there is no real dispute that the nature of the plaintiff’s post-traumatic stress disorder fluctuated over the years, and has at times been influenced by the other stressful events in his life.
19Further, there is no real dispute that by August 2021, that is, shortly before the farm invasion – an event to which I shall return – his PTSD symptoms had improved. By that stage, he had become a patient of the Mansfield Restart program[7] and was working on strategies to reduce his alcohol consumption. By that stage Mr Mark Creamer, a consulting psychologist, had opined that the plaintiff’s social and leisure activities had improved, and there were activities from which the plaintiff was able to gain enjoyment.[8] Mr Creamer noted that the plaintiff had continued to receive treatment, and had, in consultation with his doctor, reduced his dose of anti-depressant medication, as well as continued with occasional psychological appointments with Ms Dolan. Mr Creamer said in summary that:
“The picture that emerges is of a man who developed a range of significant psychiatric problems following an incident in 2016 but who has significantly modified his lifestyle in an effort to cope with these adverse effects and preserve some quality of life. At first glance, he has been relatively successful at this. His quality of life and functioning may seem quite good (and, indeed, on some levels it is), but it is important to emphasise that it represents a substantial deterioration from his pre-incident functioning.”[9]
[7]CB 74.
[8]CB 80.
[9]CB 81-82.
20In a similar vein, at about the same time the plaintiff’s treating general practitioner, Dr Ben Nally, in a report dated 18 November 2021,[10] noted the plaintiff’s ongoing treatment. He described the plaintiff as very motivated and accepting of the help offered, but as still suffering from symptoms of PTSD. He said of the plaintiff that he had been making very good progress but that his mental health had certainly suffered. He referred to the plaintiff’s increased alcohol intake over the years, but of having recently made some progress.[11]
[10]CB 92.
[11] CB 79-81.
21The short point is that by August 2021, the plaintiff’s post-traumatic stress disorder had improved to the point where he was able to engage in some pleasurable activities and had been able to continue to operate his farm. His alcohol dependency had been treated and his use of alcohol had decreased. His anti-depressant medication usage was being decreased.
22Pausing here, dealing briefly with the contentions of the defendant, Senior Counsel for the defendant submitted that the evidence to this point in time, that is, at August 2021, would tend to a conclusion that the accident had caused the plaintiff to suffer a psychiatric condition by way of a PTSD, but that the psychiatric condition had improved to a point where it could be fairly described as “significant”, but that it was not “severe”. Senior Counsel for the defendant also accepted that if the plaintiff was already severe prior to the burglary (which is a reference to the farm invasion), then “it matters not what the invasion has added to it”.[12] Further, and while not explicitly conceded, much of the contentions of the defendant were directed to the fact that the farm invasion and a related alcohol dependency was what really resulted in the plaintiff suffering a psychiatric condition that might now be found to be “severe”.
[12]Transcript (“T”) 85, Line/s (“L”) 24-31.
23There is no doubt that the plaintiff’s psychological symptoms deteriorated after the farm invasion. There is no doubt that there was a relapse of his alcohol dependency. An issue arises as to whether that relapse was short lived or persists, a topic I shall return to. But regardless, prior to the farm invasion he had ongoing psychological symptoms which required ongoing counselling, medication, and importantly had effectively destroyed his ability to be meaningfully engaged with the CFA.
24The plaintiff’s involvement in the CFA was very important to him. In his first affidavit he described it as an important part of his life, both work-wise and socially. In his most recent affidavit, sworn 14 June 2022, he said that “[n]ot being able to be involved with the CFA like before because of my mental health remains devastating for me”.[13]
[13] CB 146.
25Returning to the contentions of the defendant, it was firstly submitted that while there had been an interference with the plaintiff’s involvement with the CFA, the real loss associated with that either crystalised when Dr Nally certified the plaintiff in December 2021, after the farm invasion, as unfit to remain in the CFA and so it was the unrelated farm invasion that caused him to feel devastated by that loss. Alternatively, the defendant queried just what had been lost. The plaintiff said in cross examination there had not been any fires in the last five years. So perhaps other than the satisfaction of being the CFA brigade captain and apart from some social status and socialisation associated with that, the defendant posed the rhetorical question what had really been lost?
26There are occasions where the determination of “serious injury” involves the incremental combination of various losses. There are other occasions whereby a finding of “serious injury” turns on a significant or perhaps “big ticket” loss. In this proceeding, I accept that the loss of the involvement in the CFA has had a devastating consequence to the plaintiff. It was clearly something that he enjoyed and derived a great deal of personal satisfaction from, as well as significant social connections. Whilst he was able to maintain a modest involvement prior to the farm invasion, he was never able to return to anything like the level of participation that he had before the accident.
27While, fortunately, there may not have been any fire activity in recent fire seasons, that does not mean that the Merton CFA brigade has been inactive. This much is confirmed by Mr Harlock in an affidavit sworn by him on 17 November 2021.[14] In that affidavit Mr Harlock described attempts to reintroduce the plaintiff to operational duties, which confirms that there has been an ongoing operational aspect of the brigade. He described the plaintiff previously deriving “tremendous enjoyment” from his CFA involvement and the plaintiff as then only able to provide support for minor operational duties. He described the loss of the plaintiff’s social contacts with the CFA and of his own observation of the plaintiff’s increased alcohol use since the accident. I accept his evidence.
[14] CB 25.
28So, while it may not have been until December 2021 when Dr Nally certified the plaintiff as unfit for any CFA duties, regardless the plaintiff had little real involvement with the CFA due to his accident-related psychological condition. In my view and contrary to the submissions of the defendant, that is a “big ticket” loss to him, and a significant impairment consequence which points to a finding of “serious injury”.
29In my view, by August 2021, that is before the farm invasion, and contrary to the submissions of the defendant, the loss of any meaningful ability to participate in the CFA, together with the ongoing psychological symptoms as set out in his affidavits and upon which he was not really challenged, together with the need for ongoing medication, psychological support, and general practitioner attendance, had already produced a “severe” impairment consequence. Therefore, it does not matter what extra impairment may have been caused by his response to the farm invasion.
30Accordingly, in my opinion, by August 2021, the plaintiff had suffered a “serious injury”, but, before formally making that conclusion, and for completeness, I shall deal with the farm invasion and the medical evidence.
The farm invasion
31As already mentioned, the defence to this proceeding was substantially built around the contention that if the Court was satisfied that the plaintiff now had a “severe” psychiatric condition, then it was the farm invasion that had caused that condition and not the accident. To understand that submission it is necessary to understand the farm invasion and what has happened to the plaintiff since then.
32In his second affidavit, sworn 9 November 2021, regarding the farm invasion, the plaintiff dealt with it briefly when he said that:
“In around mid-August 2021 I was physically assaulted by two drunk men who randomly came onto my property late at night. The police came and took them away. This incident caused a temporary flare-up of my anxiety.”[15]
[15]CB 21.
33The plaintiff was cross-examined about the farm invasion and about his increased alcohol consumption after that event and medical certification from Dr Nally, in December 2021, removing him from any involvement with the CFA. In summary, the plaintiff gave evidence that two drunk men drove onto his farm property late at night. He called the police, but they were at Benalla, and it took approximately 40 minutes for the police to attend his property. In the meantime, he followed them in his vehicle into the paddocks of his farm. There was an incident where they drove at his car. There was then a verbal and physical altercation between him and the two men. The plaintiff was worried they might be armed, and he had taken his own firearm with him in his utility. He was at one stage in fear of his life.[16] Eventually the police attended, and the men were apprehended. The plaintiff accepted that his alcohol consumption increased after the invasion. For a while he went to stay with his son, and for a while one or the other of his sons would come and stay intermittently with him “[j]ust to make sure that the old man was okay”.[17]
[16]T61, L11-12.
[17]T67, L17-18.
34In respect to his alcohol consumption since the farm invasion, it was put to him that there had been an increase in his alcohol consumption from the time of the invasion until now, and he agreed.[18] Specifically it was put to him as follows:
[18]T69, L28.
Q:“And I’m putting this to you, that your alcohol consumption was dramatically going better, dramatically improved over the course of 2020 and 2021 to the extent that you were having four alcohol free days a week and your alcohol consumption on the alcohol days was considerably reduced; that’s correct, isn’t it?---
A:That’s correct.
Q:This incident happens and your alcohol consumption, I suggest to you, almost immediately dramatically increased, that’s correct, isn’t it?---
A:Yes.
Q:And I suggest to you that that led to further sleep problems for you, is that so?---
A:Yes.
Q:It led to a decline in your mental health?---
A:Yes.
Q:And I suggest to you that it is obvious that it led to a certification by your GP, I suggest on recommendation effectively from Ms Meadows – that you not having anything to do with the CFA; that’s all true, isn’t it?---
A:Yes.”[19]
[19]T76, L7-24.
35In re‑examination, the plaintiff said that his alcohol intake had varied over the last couple of years. However, he also said that his alcohol intake had increased “for a little while and for a month and a half” after the invasion.[20] In re‑examination he gave evidence of having flashbacks to the accident. He accepted that he had struggled for a while after the farm invasion but did not see that as being relevant to his ongoing mental health.
[20]T80, L2-3.
36The plaintiff’s oral evidence revealed that the farm invasion was a dramatic and frightening event. Afterwards he was in fear of his safety and required support from his sons. His alcohol use, which had been a real problem but in part brought under control by a specialist treatment program in April 2021, again became a problem for him. But, having considered the whole of the evidence, I accept his evidence, including his evidence in re-examination, that his alcohol abuse disorder now relates to the accident and is a chronic ongoing problem for him.
The evidence of the alcohol dependency/abuse disorder
37Dealing in a little more detail about the issue of the alcohol dependency, the plaintiff from approximately April 2021[21] was treated at the Mansfield Hospital by Ms Amanda Vasey, a rehabilitation nurse, as part of a specialist ‘restart program’. That program assisted him to decrease his use of alcohol as a means of managing his accident-related psychological symptoms. In a clinical note made by Ms Vasey on 27 August 2021[22] she recorded the farm invasion and that “Graham is a bit weary from this and has admitted to increased drinking amounts during the week starting from 5 pm”. But it is also clear from her note that the plaintiff was still struggling to manage his accident-related alcohol dependency. She recorded “he feels he still has a handle on the amount he is drinking. He continues to journal about the amount and reasons why he is drinking which he states is helping him currently”. Therefore, regardless of his use of alcohol following the farm invasion, it was already an entrenched and ongoing problem that he was battling to control.
[21] The evidence of the exact start date is unclear.
[22] CB 230.
38Next, Ms Rachel Meadows is a psychologist who has treated the plaintiff since 5 August 2021. In a report dated 16 November 2021[23] she described her treatment for the accident-related PTSD and ongoing issues for the plaintiff due to that condition, but makes no mention of the farm invasion. Then in a report dated 26 November 2021[24] provided to the Victims of Crime Assistance Tribunal in support of funding for treatment due to the farm invasion, she talks of the farm invasion invading the plaintiff’s “safe place” and exacerbating his pre-existing PTSD. She described the farm invasion as “a major set back” but noted that the plaintiff had put into place strategies to reduce his alcohol consumption which had been “to a degree, effective”[25] In respect to his drinking she said, “I assume this to be a temporary set back”.
[23] CB 90.
[24] CB 154.
[25] CB 157.
39Next, in a further report dated 5 May 2022,[26] Ms Meadows again deals with the accident-related PTSD but makes no mention of the farm invasion. She says that the plaintiff “has been using alcohol to self-medicate his symptoms”.[27]
[26] CB 178.
[27] CB 179.
40The defendant submitted that the evidence of Ms Meadows was unsatisfactory as she had failed to disclose an adequate path of reasoning, considering her report to VOCAT, why she otherwise does not deal with the farm invasion in her other reports and links the alcohol use to the accident.[28] I do not accept that criticism. She has treated the plaintiff before and after the farm invasion. Her report to VOCAT mentions the need for the CFA/Workcover to continue to fund psychological treatment. She clearly describes a temporary increase in alcohol consumption and otherwise a long-term alcohol problem, linked to the accident. That is all consistent with the plaintiff’s own evidence and the limited evidence from Ms Vasey.
[28] T117 L1-28.
41I conclude that the plaintiff has an alcohol abuse disorder that is related to the accident. It was temporarily aggravated or worsened by the farm invasion. The conclusion that it is related to the accident means that there really is no dispute that the plaintiff currently has a “severe” accident-related psychiatric condition.
42But, again for completeness, I shall now deal with the final relevant medical evidence.
Associate Professor Doherty
43Associate Professor Peter Doherty is a consultant psychiatrist who has examined the plaintiff at the request of the defendant. In a report dated 1 November 2021,[29] he reviewed various documents and conducted a psychiatric examination of the plaintiff. In respect to diagnosis, Associate Professor Doherty said:
[29]CB 120.
“I considered the appropriate psychiatric diagnosis in this case. The claimant has a history of depression requiring treatment with antidepressant medication prior to the subject transport accident. He was depressed in the year 2000 and was on antidepressant medication then. He was depressed in 2002 and on antidepressant medication. He acknowledged at the time of his divorce from his wife Lisa, he was depressed and that was in about 2003. By 2008 he was again depressed following a relationship breakdown. He was placed back on an antidepressant medication.
At the time of the subject transport accident, he appears to have not been taking an antidepressant medication or anxiolytic medication. He was not in psychiatric or psychological treatment. There was however a vulnerability to deteriorate under stressful life circumstances and that has happened at the time of the subject transport accident and because of non-transport accident related factors after that.
There was an immediate psychological reaction to the subject transport accident. He attended his general practitioner in May 2016 with high levels of anxiety. He attended a psychologist and the first session was two months after the transport accident. He reported then, on 17 June 2016, that he was depressed, agitated, anxious but denied flashbacks. He could not stop thinking about the subject transport accident. There were thus symptoms of traumatisation. There was an increase in alcohol consumption after the subject transport accident noted by the general practitioner in October 2016. That continued for some time and has now remitted, that is, it has lessened.
He ceased his duties as captain of the Merton CFA in about August 2016 but he still has an involvement with that unit.
In 2017, there were significant non-transport accident related factors affecting his emotional health. In July his partner, Lisa, left. In early 2018 there were difficulties with a neighbour following the claimant shooting their dogs and then there was the death of his ex-partner Lisa in September 2018 and the death of a brother in a tractor accident in October 2018. There was a significant deterioration in his mental health at that point in time.
He has improved since then. He is controlling his drinking. He is trying to get off the low dose of antidepressant medication he is currently taking. He continues to work around his own farm and occasionally works for someone else on their farm. He has been treated by PTRS over a couple of years and the content of the sessions have to do with his interpersonal relationships rather than the specific treatment of trauma.
He was assessed by a psychiatrist for the CFA in August 2016 and diagnosed with PTSD and a major depressive disorder. He was more comprehensively assessed by another psychiatrist in January 2019. He diagnosed a chronic PTSD in partial remission and an alcohol abuse disorder.
From a diagnostic point of view, the claimant's problems are a combination of features of traumatisation and a mood disorder. There is a vulnerability to deteriorate under stressful circumstances, esp. relationship issues, clearly evident in his history before the subject transport accident and after the subject transport accident.
From a diagnostic point of view, there has been a PTSD condition which is largely remitted now. There has been a major depressive disorder which is also largely remitted now. There may have been a diagnosable alcohol use disorder, although I am unsure about that.”[30]
[30]CB 127.
44Associate Professor Doherty said that the plaintiff had suffered a PTSD as a result of the accident, but in his view it had always been mild in severity, and was underpinned by a vulnerability to deteriorate under stressful circumstances.[31] The thrust of his report is summarised by his opinion that the prognosis was then favourable and that “The PTSD condition relevant to the transport accident is largely remitted and is inconsequential now.”[32]
[31]CB 130.
[32]CB 131.
45Associate Professor Doherty then provided a further report, dated 30 May 2022,[33] after he again conducted a psychiatric examination of the plaintiff. He noted that at his previous examination he considered there was an alcohol intake problem, but no diagnosable alcohol use disorder. However, on this occasion, he said there was evidence to diagnose alcohol use disorder.[34] He also said that he remained of the view that the PTSD condition previously able to be diagnosed consequential to the transport accident had now faded significantly and is not an ongoing issue for him. He said that:
“In my opinion, the cause of that deterioration in mental health is the effect of the assault of August 2021 and the deteriorating performance on the farm due largely to the cognitive effects of persistent ongoing alcohol consumption.”[35]
[33]CB 196.
[34]CB 203.
[35]CB 203.
46Associate Professor Doherty then provided a third report, dated 16 June 2022,[36] where he was asked to review various medical reports provided to him. Having done so, he opined that the plaintiff’s alcohol use disorder is predominantly, 80 per cent, related to the effects of the assault in August 2021, and that the accident caused only a small contribution, maybe 5 per cent.[37] He noted Mr Creamer’s opinion that the plaintiff had a mild PTSD condition, and said that he largely agreed with that opinion. He said:
“I agree with the opinion of psychologist Creamer that the PTSD disorder is mild in severity. I disagree that the depressive disorder is moderate in severity.
The psychologist Creamer has not made comment about the presence or otherwise of an alcohol use disorder and its effect on the cognitive functioning. That omission is inexplicable. The psychologist in his report indicates a range of cognitive impairments are present, all of which can occur in prolonged and alcohol use.”[38]
[36]CB 209.
[37]CB 212.
[38]CB 212.
47Pausing here, Mr Creamer in fact provided a further report dated 26 May 2022.[39] He obtained a history that the plaintiff’s alcohol consumption increased after he had last spoken with the plaintiff in early August 2021. He thought there had been a slight worsening but no substantial change in the plaintiff’s mental health.[40] He also noted that the plaintiff’s mental health fluctuates, with episodes of quite good functioning interspersed with periods of poor mental health and low functioning. He opined the plaintiff was still deeply affected by the accident, and that there had been little change from when he first assessed the plaintiff in 2019, although some evidence of a small deterioration since his previous assessment in August 2021.[41]
[39]CB 187.
[40]CB 189.
[41]CB 192.
48Regardless, as should be clear, I consider that a proper consideration of the evidence supports a conclusion that the alcohol use disorder is related to the accident. I accept the submission of the plaintiff that Associate Professor Doherty’s report is against the weight of the evidence.[42] I do not accept his opinion regarding the cause of the plaintiff’s alcohol use disorder. But I do note that his opinion would otherwise support the conclusion that the plaintiff has a “severe” psychiatric condition.
[42] T112 L20-22.
Dr Weissman
49The remaining relevant medico-legal opinion is from Dr David Weissman, a consultant psychiatrist who has examined the plaintiff at the request of his solicitors and provided reports. The first of those reports is dated 29 November 2021.[43] Strictly speaking, and because of the conclusions already expressed, there is no need to say much about his reports. They are supportive of the plaintiff’s claim for “serious injury” related to the accident. They link the alcohol use disorder to the accident, although I accept that he could have been clearer in his opinion about that. Dr Weissman knew of the farm invasion because of documents provided to him, but he does not expressly deal with the farm invasion in his reports. But in circumstances where I have concluded the farm invasion caused a temporary exacerbation of the plaintiff’s pre-existing psychological symptoms and alcohol use disorder, at the end of the day his opinions are consistent with the whole of the evidence.
[43]CB 94.
50But again, for completeness, I note that Dr Weissman reviewed various documents and conducted a psychiatric examination of the plaintiff. He obtained a history of various stressful events that had occurred in the plaintiff’s life before and after the accident. It does not appear that he obtained a specific history of the farm invasion, although he had available to him documents that would have alerted him to that event.[44] Ultimately, Dr Weissman opined that the plaintiff was suffering a chronic PTSD in partial remission, currently of mild to moderate intensity; chronic major depressive disorder with anxious distress – moderate intensity; alcohol abuse disorder in partial remission.[45]
[44]CB 105.
[45]CB 108.
51Dr Weissman then re‑examined the plaintiff and provided a further report dated 18 March 2022.[46] Once again, he does not record a specific history of the farm invasion, including documents from treating practitioners that relate to the plaintiff’s alcohol use and which Dr Weissman quotes as demonstrating “[h]ad relapse with recent assaults, back on track now”.[47] Once again, his overall opinion is supportive of a finding of “serious injury”.
[46]CB 159.
[47]CB 173.
Conclusion
52For the reasons given I am satisfied that the plaintiff has suffered a “serious injury” by way of a “severe” psychiatric condition related to the accident.
53Leave is granted to the plaintiff to commence a common law proceeding for damages arising out of the accident.
54I shall hear from the parties as to the formal orders.
0
2
0