Lloyd v Amezdroz and Son Pty Ltd
[2014] VCC 736
•2 June 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04571
| PETER LLOYD | Plaintiff |
| v | |
| AMEZDROZ AND SON PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 27, 28 and 31 March 2014 and 1 April 2014 | |
DATE OF JUDGMENT: | 2 June 2014 | |
CASE MAY BE CITED AS: | Lloyd v Amezdroz and Son Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 736 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – psychiatric injury – pain and suffering damages – loss of earning capacity damages – whether the psychiatric injury consequences satisfy the threshold test for leave to seek damages – credibility of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Application granted for leave to bring proceedings for pain and suffering damages only. The application for loss of earning capacity certificate is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Maddens Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1 This is an application brought by Originating Motion dated 3 September 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by him arising out of or in the course of his employment with the defendant, and more particularly on 11 March 2010. The plaintiff also alleges that there were subsequent events on 17 May 2011 and 16 September 2011 which arose out of the initiating event on 11 March 2010.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering damages and loss of earning capacity damages.
3 At the commencement of the hearing, Mr N R Bird, on behalf of the plaintiff, submitted that the basis for this application was a psychiatric injury and the consequences that arose from that injury are the foundation of the application for leave to recover damages for pain and suffering and loss of earning capacity. The injury the plaintiff says that he suffers from is Post-Traumatic Stress Disorder.
4 The following evidence was adduced or tendered during the course of this application:
·The plaintiff gave evidence and was cross-examined;
·Nicholas James Lloyd Black, the son of the plaintiff, gave evidence and was cross-examined;
·The plaintiff’s general practitioner, Dr Sharon Suguilon, gave evidence and was cross-examined;
·The plaintiff tendered the following documents:
§Exhibit A – the Plaintiff’s Court Book (“PCB”) pages 9-15, 26-35 and 54-94;
·The defendant tendered the following documents:
§Exhibit 1 – Defendant’s Court Book (“DCB”) pages 8-130;
§Exhibit 2 – DVD of surveillance film dated 5 November 2012 and 28 December 2012;
§Exhibit 3 – Austin Health documentation dated 7 May 2012;
§Exhibit 4 – Department of Emergency Medicine, Geelong Hospital, dated 6 September 2011;
§Exhibit 5 – Report from Mr Allan Woodward, clinical psychologist, dated 7 May 2010;
§Exhibit 6 – Report of Dr Joe Black, treating psychiatrist, dated 8 September 2011;
§Exhibit 7 – Victorian Taxi Directorate application dated 21 May 2012;
§Exhibit 8 – Otway Medical Clinic entry dated 6 September 2012;
§Exhibit 9 – Certificate of Capacity for the plaintiff dated 28 August 2013;
§Exhibit 10 – Bundle of Commonwealth Bank financial records dated 27 May 2013;
§Exhibit 11 – Bundle of progress notes from the plaintiff’s general practitioners from 27 April 1999 to 28 March 2014;
§Exhibit 12 – Bundle of Facebook entries relating to the plaintiff;
§Exhibit 13 – Extract from the Colac Herald relating to the plaintiff dated 19 September 2011.
5 I have read the exhibited material and considered it in the determination of this application.
6 The plaintiff’s application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires a plaintiff to prove that he has suffered a “permanent severe mental or permanent severe behavioural disturbance of disorder”. In this case, the diagnosis of the plaintiff is Post-Traumatic Stress Disorder with Depression.
7 Mr J L Batten, on behalf of the defendant, identified the issues in this application. The first issue identified by the defendant was whether the psychiatric injury claimed by the plaintiff and its ongoing consequences met the statutory test. The second issue raised by the defendant is the credit of the plaintiff.[1]
[1]Transcript (“T”) 8
The statutory scheme
8 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
9 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38).
10 I have applied the principles set forth therein in reaching my conclusions in this application.
11 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
12 The plaintiff was born in 1971. He is now forty-three years old.[4]
[4]PCB 9
13 The plaintiff was raised in the Colac area and has spent some of his life living in Warrnambool. The plaintiff is a single man and has one child, his son, Nicholas, with whom he lives.
14 The plaintiff left school at age fourteen. The plaintiff suffers from dyslexia and is functionally illiterate. The plaintiff has worked most of his life in physical-related employment until 2011, when he ceased work.[5]
[5]PCB 9
15 The plaintiff has a very good work record. He has previously worked as a plant operator for Australian Kiln Dried Industries. He has also worked as a welder. The majority of the plaintiff’s work has been as a transport driver. He has worked for Brunt’s Transport and Ryan’s Removals. He commenced employment with the defendant on 13 May 2009. He remained in that employment until he ceased work in 2011.[6]
[6]PCB 9
Injury with the Defendant
16 The plaintiff, in the course of his employment with the defendant, worked as a driver of transport trucks. His normal duties were to cart woodchips to Geelong from Colac. On 11 March 2010, he had commenced work at 1.30am at the Colac depot for the defendant. The plaintiff, in the course of his employment, had completed carting one load of woodchips to Geelong and had returned to the depot in Colac.[7]
[7]PCB 10
17 The plaintiff was then required to make a delivery of beer to the Birregurra Hotel. He loaded the work ute with the kegs of beer for delivery to the Birregurra Hotel. On arrival at the Birregurra Hotel at approximately 6.30am, the plaintiff knocked on the door of the hotel. The plaintiff then proceeded to complete the delivery of the full kegs of beer and take away the empty kegs.[8]
[8]PCB 10
18 The plaintiff described the incident in his affidavit dated 18 May 2013 in the following manner:
“I subsequently went and stood at the top of the cellar door and watched as Snowy went to lift the first empty keg. Just as he went to do so he let go of it and fell back onto his backside and started to tremble. His hands were shaking as was his whole body. At first I thought he was having some sort of fit and I yelled out to him. He didn’t answer and fell back where he lay down on the floor in a sort of folded up position. I ran into the pub and asked for someone to help but there was no-one there. I tried my mobile phone but it didn’t work in that area. Eventually I found a phone in the pub and rang 000.
I then went back to the top of the cellar. I could see Snowy at the bottom of the stairs. He was still shaking and lying in the foetal position. I kept yelling at him but got no response. While I was at the top of the cellar I noticed an unpleasant odour. It was like an off smell.
Eventually I went down to try and help the cleaner. When I got to the bottom of the stairs I felt funny, my chest was tight and my head was spinning. I felt really strange and I climbed back up the ladder straight away.
I rang 000 again. By this time I was certain there was a gas leak in the cellar and we would probably need the fire brigade.
After the call I felt that I still wasn’t breathing right and I felt unsteady on my feet.”[9]
[9]PCB 10-11
19 The plaintiff then went on to describe the aftermath in the following terms:
“Eventually between the fire brigade, the police and the ambulance they were able to get Snowy out of the cellar. He was placed in the ambulance where they attempted to resuscitate him. As they were putting him on the stretcher his head dropped to the side and his face appeared to be looking straight at me. His face was purple and I felt like he was saying ‘why didn’t you help me’.”[10]
[10]PCB 11
20 The plaintiff resigned his employment shortly after this incident. He was eventually re-employed and, on 17 May 2011, in the capacity of a transport driver, he was unloading a truck at the Colac depot when he smelled gas and “freaked out”. The plaintiff deposed that he had flashbacks to the incident in the Birregurra Hotel and was unable to continue with his employment.[11]
[11]PCB 12
21 The plaintiff returned to employment and had a similar experience in September of 2011 when he attended the Geelong Hospital with suspected palpitations and a heart condition as a result of an anxiety attack whilst working as a transport driver. The plaintiff has not worked since that time.
22 The defendant does not dispute the events at the Birregurra Hotel and that there was an impact on the psychological and psychiatric wellbeing of the plaintiff. The issue in this case is the extent of the psychological and psychiatric impact upon the plaintiff.
Medical treatment
23 After the incident at the Birregurra Hotel, the plaintiff was conveyed by ambulance to the Colac Hospital. He was given oxygen and reassurance at the hospital.[12] Trauma counselling was arranged for the plaintiff shortly after his return to work.
[12]PCB 12
24 The plaintiff was then working until 17 May 2011. After the gas incident at work, the plaintiff attended upon his general practitioner, Dr Suguilon. The plaintiff was prescribed anti-depressants and referred to a psychiatrist in October 2011. The psychiatrist prescribed Mirtazapine and other psychotropic medications including Quetiapine. The treating psychiatrist was Dr Joe Black.
25 The plaintiff has also been treated by Mr Allan Woodward, psychologist, at the Camperdown Resilience Centre.
26 The plaintiff is currently receiving psychological support from Dr Guy Coffey, psychologist, and Mr Colin Carter, community clinician. He is also attending on Dr Suguilon, who has had the management of his condition from the beginning. The plaintiff no longer takes any medication to ameliorate the symptoms he is describing.
The medical opinions
27 In respect of the psychiatric and psychological impairment suffered by the plaintiff as a result of the incident on 11 March 2010, the following medical practitioners have given opinions:
Dr Sharon Suguilon, general practitioner
28 Dr Suguilon prepared three medical reports, dated 28 February 2012, 5 March 2014 and 12 March 2014. Dr Suguilon was called to give evidence and was cross-examined extensively by counsel for the defendant. Dr Suguilon is the general practitioner who has managed the plaintiff’s condition over the whole of the period from the time of the incident until the time of giving evidence.
29 Dr Suguilon, in her evidence, confirmed her medical reports were accurate. She confirmed her diagnosis of the plaintiff suffering a Post-Traumatic Stress Disorder.[13]
[13]T200, L17-19
30 Dr Suguilon gave evidence that, despite the extensive treatment given to the plaintiff, it has had very minimal impact upon his ongoing condition.[14] Dr Suguilon was cross-examined about the detail of the treatment given to the plaintiff over the course of her supervision. She stated that after all the medication treatment, none were appropriate for the plaintiff and that he now no longer took any medication.
[14]T218
31 Dr Suguilon stated that the plaintiff always came in to see her wanting to work but stated that he could not be exposed to fumes or gas. Dr Suguilon stated that she would certify the plaintiff for modified duties if he was not working near gas.[15]
[15]T220
32 In the course of her evidence, Dr Suguilon stated that the major problem for the plaintiff’s ongoing condition is that he has an inability to sleep. She noted that the plaintiff only slept for approximately two hours per night and that that would be unsuitable for a driver driving trucks over long distances.[16] Despite all the treatment and the inability of the plaintiff to get back to work, Dr Suguilon expressed the view that she was optimistic that the plaintiff would return to work.[17]
[16]T239
[17]T260
33 Dr Suguilon was aware that the plaintiff was engaged in volunteer work at the County Fire Authority (“CFA”) but did not know a great deal about the activities that the plaintiff actually performed with the authority.
34 Dr Seguin’s final position was that the plaintiff suffered from a Post-Traumatic Stress Disorder and that the treatment to date has done little to ameliorate his condition.
Dr Joe Black, psychiatrist
35 Dr Black treated the plaintiff in 2011. He prepared a report dated 2 October 2011. Dr Black also prepared a report to the general practitioner, Dr Suguilon, dated 8 September 2011, which was tendered as exhibit 6.
36 Dr Black’s opinion was:
“I am of the opinion that Peter suffers from chronic PTSD which has arisen in the aftermath of a workplace fatality that he witnessed. … .
…
… His sleep is now constantly interrupted by nightmares and this results in daytime drowsiness. … .
…
… He has trialled sleeping tablets and venlafaxine (an antidepressant) from his GP but found both of these agents highly noxious and unhelpful. … .
…
Part of the problem may be Peter’s learning style and his inflexibility. Peter is illiterate and innumerate. … .
This leads me to conclude that Peter will probably not tolerate medication of any sort and that his psychological rigidity will make work with any aspect of his PTSD very difficult indeed. He is likely to tolerate psychological treatment equally poorly because that requires a willingness to be flexible in the ways that one construes emotional events.”[18]
[18]PCB 66-67
Medical Panel opinion dated 30 April 2013
37 The plaintiff relied upon the Reasons for Opinion set out by the Medical Panel decision made on 30 April 2013.[19] The presiding member of the Panel, Dr Matthew Tagkalidis, psychiatrist, prepared the opinion. The other member of the Medical Panel was Dr Michael Epstein, psychiatrist.
[19]PCB 56-62
38 The Medical Panel took a detailed history from the plaintiff which is set out in their Reasons for Opinion, as follows:
“Insight was partial at best, with a basic understanding that his workplace experiences had significantly contributed to his emotional reaction but a very concrete understanding of his emotional state. Judgement was clearly affected by his mood state and the constant internal agitation.
The Panel concluded that the worker is suffering from Post Traumatic Stress Disorder and a Major Depressive Disorder relevant in part to, the accepted psychiatric condition injury and in part to the worker’s unrelated incident on 17 May 2011.
…
The Panel considers that due to the nature of the worker’s psychiatric injury and the duration of the symptoms, the worker’s psychiatric condition has substantially stabilised and is unlikely to remit with further treatment. The Panel therefore concluded that for the purposes of the assessment, the worker’s psychiatric condition is stable and permanent.”[20]
[20]PCB 60
39 I note that the Panel went on to review the medical reports of Dr Joe Black, psychiatrist; Dr P Daniels, psychiatrist; Dr N Rose, treating psychiatrist; Dr M van der Linden, psychiatrist; Dr C Newlands, psychiatrist; Dr G Coffey, treating psychologist; Mr A Woodward, treating psychologist, and Mr S Burzynski, treating psychologist.
40 The Panel noted that each of those medical examiners and/or treaters found that the plaintiff suffered from Post-Traumatic Stress Disorder or Post-Traumatic Stress Disorder with Depressed and Anxious Mood.
Dr Lester Walton, psychiatrist
41 Dr Walton prepared a report dated 25 February 2014 on a medico-legal basis.[21] This report was prepared for the plaintiff’s solicitors.
[21]PCB 87
42 Dr Walton noted that there was unanimity of psychiatric and psychological opinion that the plaintiff suffered from a Post-Traumatic Stress Disorder triggered by the incident on 3 May 2010. The date of 3 May 2010 is a mistake by Dr Walton. The date of the injury to the plaintiff is agreed by all parties to be 11 March 2010.
43 Dr Walton gave his opinion as follows:
“I concur with other examiners that the appropriate diagnosis is that of post-traumatic stress disorder. It is also correct to describe Mr Lloyd as afflicted by specific phobic anxiety surrounding the smell of gas but I doubt that that requires a separate diagnosis as such as it is part and parcel of the post-traumatic stress disorder.
This man’s condition is of moderate to severe intensity. It has proved to be particularly treatment-resistant.
The prognosis is poor both in terms of the continuing severity of Mr Lloyd’s symptoms and the fact that they very likely are permanent.”[22]
[22]PCB 91-92
44 Dr Walton also addressed the issue of the second incident of 17 May 2011. His opinion was as follows:
“In my opinion the incident on 17 May 2011 does not have causal relevance but it merely represents a consequence of the already entrenched post-traumatic stress disorder, a particular example of Mr Lloyd experiencing an adverse response to a triggering stimulus (the smell of gas), there having been many occasions of a similar nature before and after this incident but that particular incident stands out simply because it seems to have been the final trigger to his departing from what was becoming increasingly onerous work. In my opinion that particular incident does not amount to impairment which must be disregarded under the legislation.”[23]
[23]PCB 93
45 It is clear from Dr Walton’s opinion that the plaintiff has a severe ongoing condition of Post-Traumatic Stress Disorder.
Colin Carter, community clinician
46 Mr Colin Carter is a community clinician based at the Colac Community Mental Health Service. Mr Carter is the person who has the closest day-to-day contact with the plaintiff in the treatment and ongoing monitoring of his psychiatric condition. Mr Carter has been seeing the plaintiff on a weekly basis from August 2013. The purpose of this contact is to provide supportive psychotherapeutic counselling.[24]
[24]PCB 77
47 Mr Carter has supervised and encouraged the plaintiff to engage with the CFA brigade. The purpose of the CFA involvement is an attempt to re-engage the plaintiff in the community and some social networks.
48 Mr Carter gave his opinion as follows:
“In terms of a prognosis, I believe Mr Lloyd is likely to experience symptoms of post traumatic stress, including insomnia, for many years to come and some symptoms may re-emerge intermittently for the remainder of his life. Since formal engagement with this service, Mr Lloyd has described some reduction in flashbacks, intrusive ruminating thoughts, general anxiety and hyper-vigilance, while being able to increase his interest in former hobbies and CFA activities. … I believe however, much of this has been self driven by Mr Lloyd through his personal determination to ‘get better’ and be able to return to some type of employment. His voluntary involvement with the CFA is a significant positive factor toward his recovery. He is a very highly regarded member not only within his own brigade as 4th lieutenant, crew leader, and equipment officer, but across the South West, Division 6 CFA region for his frequent involvement In controlled burns, training exercises and command support roles at local incidents.”[25]
[25]PCB 77-78
49 Mr Carter continued to describe the plaintiff’s ongoing symptoms as genuine. Mr Carter was hopeful that the plaintiff’s role at the CFA would eventually enable the plaintiff to return to full-time employment. Mr Carter noted that the plaintiff continued to be under the supervision of Mr Lloyd; himself; the consultant psychiatrist, Dr Martin van der Linden; Dr Coffey, psychologist, and Dr Suguilon.
Dr Guy Coffey, clinical psychologist
50 Dr Coffey prepared a report dated 10 March 2014 for the purpose of this application.[26] Dr Coffey noted that the plaintiff had previously been treated by Mr Woodward, psychologist. He noted:
“However, Mr Lloyd found he was unable to tolerate exposure treatment. Mr Woodward informed me by letter of 31 July 2013 that ‘Mr Lloyd has declined to participate further in treatment. I am sorry that I have been unable to achieve any of the exposure to butane gas treatment.’ At this time Mr Woodward and I were concerned about expressions of suicidal intent by Mr Lloyd and we alerted Barwon Mental Health Service. … .
I was informed by Barwon Mental Health that in December 2013 he attended a sleep clinic which excluded sleep apnea and noted that his insomnia was probably trauma related rather than due to a specific sleep disorder. Attempts to treat his insomnia with Chlorpromazine and a hypnotic were unsuccessful and have been ceased.”[27]
[26]PCB 81
[27]PCB 83
51 Dr Coffey notes, in terms of the ongoing treatment:
“The sessions have been characterized by Mr Lloyd repetitively reciting the hopeless of his situation, the impotence of any treatment he has been offered, and the view that the only solution is to take his life – the latter being an expression more of exasperation than of an acute suicidality. He was often quite belligerent about and dismissive of the treatment that has been offered. He has not been willing or able to engage in the indicated cognitive and exposure treatment approaches to his condition. He has not been open to learn about how these approaches might assist. He has appeared to have limited capacity to introspect and understand the connection between patterns in his thinking and his affective state. … .”[28]
[28]PCB 85
52 In conclusion, Dr Coffey states:
“Mr Lloyd’s condition has proven resistant to psychological and pharmacological treatment. He continues to suffer from a chronic Post Traumatic Stress Disorder (DSM V) and lowered mood which in terms of its severity is on the threshold of a Persistent Depressive Disorder (DSM V). Throughout the period I have treated him there has been very little symptomatic change. … .”[29]
[29]PCB 86
Dr Martin van der Linden, consultant psychiatrist
53 Dr van der Linden saw the plaintiff for the purpose of an independent medical examination. He prepared three reports, dated 7 June 2011, 29 July 2011 and 5 June 2013.
54 In his final report dated 5 June 2013,[30] Dr van der Linden states his opinion as follows:
“I believe Mr Lloyd suffers from Moderately Severe Post Traumatic Stress Disorder with Depressed Mood. I furthermore believe that his depressive symptoms are at a sufficient level to warrant a diagnosis of Major Depression.”[31]
[30]DCB 1
[31]DCB 17
55 Dr van der Linden went on to give the opinion that the plaintiff could possibly work as a factory hand, a cleaner or a security officer in the future if his symptoms resolved. Dr van der Linden was of the opinion that truck driving would not be a good option for the plaintiff given his sensitivity to natural gas and exhaust smells.
Dr D N Rose, psychiatrist
56 Dr Rose prepared two reports, dated 15 December 2011[32] and 21 February 2012.[33] In his first report, Dr Rose set out his opinion as follows:
“… He has seen a psychiatrist and he has seen two psychologists. Unfortunately, like some other people, he appears to be intolerant of medications and this may be for biological reasons. Some 7% of people of European origin cannot tolerate normal doses of medication.
At any rate, Mr Lloyd has been refractory to treatment so far and I would earnestly suggest that further efforts be made to have him assessed at the PTSD Unit at the Austin Repatriation Hospital as this man needs specialist care for what is a severe post-traumatic stress disorder.
…
The worker is suffering from a chronic and severe post-traumatic stress disorder consistent with the incident 19 months ago and the aggravation at work on 17.05-2011.”[34]
[32]DCB 21
[33]DCB 33
[34]DCB 25-26
57 In his later report dated 21 February 2012, Dr Rose confirmed that at that time, the plaintiff was not in a position to work his pre-injury duties or hours and that he was not fit to do any alternative duties at that time.
Dr Paul Kornan, psychiatrist
58 Dr Kornan saw the plaintiff for the purposes of medico-legal reporting. He prepared two reports, dated 10 August 2012 and 5 December 2012.
59 Dr Kornan, after his lengthy recounting of history, diagnosed the plaintiff as suffering from a Post-Traumatic Stress Disorder. He described the plaintiff as also having a specific phobia, being anxiety related to the smell of gas. In overall terms, Dr Kornan described the plaintiff’s psychiatric condition as being noticeable and significant:
“… It is of chronic moderately severe degree.”[35]
[35]DCB 40
60 In his later report, Dr Kornan confirmed his earlier diagnosis and stated that the plaintiff’s psychiatric impairment was 30 per cent. Dr Kornan did not have a full history of the other physical problems the plaintiff was suffering from, but stated that that did not affect his assessment of the psychiatric health of the plaintiff.[36]
[36]DCB 49
Dr Patrick Daniels, consultant psychiatrist
61 Dr Daniels reviewed the plaintiff on behalf of the defendant’s insurers. In his report dated 29 May 2012, Dr Daniels diagnosed the plaintiff as suffering from an “Adjustment Disorder with Mixed Depressed Mood and Anxiety”. He also stated that the plaintiff suffered from “subsyndromal Posttraumatic Stress Disorder”.[37]
[37]DCB 56
Dr Carol Newlands, psychiatrist
62 Dr Newlands examined the plaintiff on behalf of the defendant for the purposes of this application. Dr Newlands opined that the plaintiff had developed a Post-Traumatic Stress Disorder relevant to the claimed injury.[38]
[38]DCB 76
Conclusion
63 In summary, the medical opinions in this case are all in agreement. Each of the medical practitioners that have either treated or reviewed the plaintiff have diagnosed that he suffers from a Post-Traumatic Stress Disorder. The majority of the medical practitioners described the level of severity of the plaintiff’s condition as moderately severe. The plaintiff has proved to be resistant to psychological and psychiatric treatment. As has been noted in these Reasons, the plaintiff has had a considerable array of approaches to treatment by various psychiatrists and psychologists.
Credit of the Plaintiff
64 Mr Batten, on behalf of the defendant, announced at the commencement of the application that the credit of the plaintiff was a major issue in this application. The plaintiff was cross-examined over the course of three days. It was not a situation that the plaintiff was cross-examined for a full three days, but there was extensive cross-examination of the plaintiff by counsel for the defendant.
65 The plaintiff was asked if he knew a Gerard Patrick Norman. The plaintiff responded by saying that was his original name and that he had changed his name.[39] There was no follow-up to this questioning about the plaintiff’s change of name by counsel for the defendant.
[39]T109, L3
66 The plaintiff was also cross-examined about playing a game of football against Birregurra after he had returned to playing football. This line of cross-examination had a double-barrel attack on the plaintiff’s credit. The first part of the attack was that the plaintiff had been suspended from football for a lengthy period of time – approximately ten years. It was said to be a suspension arising out of a biting incident by the plaintiff. The second part of the attack on the plaintiff’s credit was that he had attended at the Birregurra Hotel after the game of football. This attendance at the Birregurra Hotel was said to have taken place after the gas incident which was the subject of this application. The plaintiff denied that he had been to the Birregurra Hotel. The plaintiff stated that they had tried to encourage him to go to the “pub” when he was in Birregurra but he decided not to go to the “pub” because it had “scared the absolute hell out of [him]”.[40] There was no evidence put to the plaintiff that he had in fact attended at the hotel subsequent to the event giving rise to this application.
[40]T18
67 The plaintiff was challenged on the basis of a report prepared by Mr Allan Woodward, clinical psychologist, dated 7 May 2010 that he had attended the hotel on 1 May 2010. The plaintiff denied that he had attended at the hotel on that date.
68 The plaintiff was also challenged on the basis that he had failed to complete the butane testing. This testing was designed to deal with his fear of smelling gas. The plaintiff said that he had done some of the testing but was unable to continue with it. The medical reporting substantiates the plaintiff’s evidence in this regard.[41]
[41]T118
69 The plaintiff was also challenged on the basis that he was a member of the Rebels Motorcycle Club. The plaintiff, at all stages, denied that he was a member of the Rebels Motorcycle Club. There was never any proof put before the Court that the plaintiff was a member of the Rebels Motorcycle Club. The best that the defendant could put to the plaintiff was that there were photographs of the plaintiff, who had attended at Rebel Motorcycle Club functions. The plaintiff never, at any stage, denied that he did so, and his explanation simply was that he had known Shane Smedley, who was a member of the Rebels Motorcycle Club, since they were ten years’ old. It was clear that the plaintiff’s connection with the Rebels Motorcycle Club was related only to his association with his boyhood friend, Shane Smedley.
70 The plaintiff readily accepted that he had attended at the Geelong Rebels Motorcycle Club and the Warrnambool Motorcycle Club. He denied any association or attendance at the headquarters of the Rebel Motorcycle Club in Sydney. This allegation was based on a Facebook entry tendered in the application. The plaintiff clearly set out that he had never been there, and I accept him on this issue.
71 In conclusion, the attack on the plaintiff’s credibility based on the fact that he was a member of the Rebels Motorcycle Club is ill founded and baseless.
72 The plaintiff was also challenged on the basis that he was not as restricted in his lifestyle as he had set out in his affidavit. This attack on the plaintiff’s credit relied on three substantial pieces of evidence.
73 The first basis was that, due to the bank records set out in exhibit 10, the plaintiff had, on many occasions, attended at petrol stations in Colac. These attendances were despite the fact that he complained about being unable to go near any sources of gas. I accept the plaintiff’s explanation that, as he described it, Colac closed down at 7.00pm. The plaintiff stated that he could have gone to the petrol stations to get milk or other household shopping. His attendances at the petrol stations were not always to obtain petrol. He stated that he did not deny going to those petrol stations to get petrol. It was gas that he was trying to avoid.[42]
[42]T110-113
74 The second area of attack on the plaintiff was his Facebook entries. The Facebook entries on their own appear that he had a large number of “friends”. The Facebook entries were exhibit 12 in the hearing. I find that the plaintiff had adequately explained his use of Facebook and that it was his way of trying to keep in contact with people given his general socialised isolation. The plaintiff’s son, Nicholas Lloyd Black, gave evidence in support of his father in this regard, and I accept his evidence.
75 The third area of attack on the plaintiff in regard to his credit and reliability in respect of socialisation was the DVD surveillance films. The surveillance films of the plaintiff occurred on 5 November 2012 and 28 December 2012.
76 In the first of the surveillance films, the plaintiff is attending at a hairdresser and otherwise nothing of any significance was shown in that film. There is a scene in the surveillance film where the plaintiff is attempting to use his telephone and appears to be texting. What is shown on that film does not in any way upset the assessment of credibility of the plaintiff which I determined over a period of three days of cross-examination.
77 The second of the surveillance films shows a time when the plaintiff attends at the hotel in Colac. The plaintiff has set out in his evidence that he attended at the Colac Hotel and would attend there to listen to music and be with people. There is nothing in the video to suggest that he was in any way acting as a member of the security team for the hotel. This proposition was constantly put to the plaintiff and he constantly denied it. There was nothing in that film that showed him acting in the capacity of security personnel, either by way of talking with patrons on their way into the hotel or, alternatively, checking their identification and the like.
78 I am mindful of the proposition set out in Church v Echuca Regional Health.[43] A court has to be very careful before drawing any conclusions from what is shown in surveillance film to attack the credit of the plaintiff. This is more so in psychiatric and psychological claim cases. It is not a situation where you can film the movement of a body or body part which would be contrary to the history given to doctors or, alternatively, evidence in the witnessbox.
[43](2008) 20 VR 566
79 The films in this particular case did nothing more than confirm exactly what the plaintiff was saying about his condition and what he was able to do and not to do. In short, I found that the surveillance films substantiated what the plaintiff was saying about those particular activities.
80 A large part of the cross-examination of the plaintiff amounted to little more than attempting to smear his credibility. I have had the advantage of observing the plaintiff being cross-examined over the course of three separate days. In that time, the plaintiff’s answers to critical questions have been consistent. Those answers are consistent in respect of the symptoms that he complained of and of his history to the doctors. At first blush, a court could be influenced by all the peripheral issues of association with Rebels Motorcycle Club, the superficial appearance of attending at petrol stations on many occasions and the use of firearms and association with firearms would all add up to some attack on the plaintiff’s credit. However, in this particular case, the plaintiff came over as a somewhat limited person in his understanding of his full situation and that is borne out by what the medical practitioners say about his capacity to be treated for Post-Traumatic Stress Disorder.
81 In conclusion, I accept the plaintiff is a witness of truth. I accept that he has limited insight into the difficulties he now faces. I also accept that the plaintiff is very motivated to get himself re-employed in some form of employment or other. The evidence of the plaintiff in this hearing and his history to the doctors has all been consistent that he wanted to return to employment. I accept that the plaintiff is genuine in his ambition and desire to return to the paid workforce.
Consequences of the psychiatric condition to the Plaintiff
82 The plaintiff has sworn two affidavits in support of his application dated 18 May 2013 and 19 December 2013. The plaintiff’s application is also supported by an affidavit sworn by his son, Nicholas James Lloyd Black, dated 19 December 2013. The plaintiff’s application is further supported by an affidavit of Grigorio Victor Inguianti, dated 9 January 2014.
Sleep
83 In his first affidavit, the plaintiff states that he can only sleep for one to two hours per night.
84 In his second affidavit, the plaintiff sets out that he had received treatment from medical practices in respect of his incapacity to sleep. He stated that Barwon Mental Health was trying to get him into a sleep clinic. He had previously been given medication and that had not assisted him with his sleeping difficulties.[44]
[44]PCB 27
85 I note that in the report of Dr Guy Coffey, he noted the following:
“I was informed by Barwon Mental Health that in December 2013 he attended a sleep clinic which excluded sleep apnea and noted that his insomnia was probably trauma related rather than due to a specific sleep disorder. Attempts to treat his insomnia with Chlorpromazine and a hypnotic were unsuccessful and have been ceased.”[45]
[45]PCB 83
86 In his affidavit dated 19 December 2013, the plaintiff’s son, Nicholas Lloyd Black, states that:
“Sometimes he tries to sleep during the day, but never manages it. ….”[46]
[46]PCB 31
He goes on to state that his father –
“… gets very little sleep, even now and goes to bed in the early hours of the morning and is always up very early.”[47]
[47]PCB 31
87 The plaintiff’s son confirmed this evidence and stated that his father was constantly tired as a result of his inability to sleep.
88 I am satisfied that this interruption to the plaintiff’s sleep is related to his trauma injury resulting in his Post-Traumatic Stress Disorder. Dr Suguilon, in her evidence, confirms that the plaintiff suffers from insomnia and that is the main reason why she would not certify him fit to drive trucks.
89 I find that it is a very significant consequence for the plaintiff, that he cannot get proper rest during the night by having a good night’s sleep and that it impacts very significantly on his wellbeing and his ability to live a normal life.
Flashbacks
90 The plaintiff gave evidence that he has flashbacks to the incident involving “Snowy in the pub”. He has given a history to his treating medical practitioners about the incident playing out in his head like a video. I accept the plaintiff’s evidence that his flashbacks are becoming less frequent now as he has re-engaged with the CFA under the guidance of Mr Carter.
91 I accept that the plaintiff continues to suffer these flashbacks, although the frequency of them has declined. The flashbacks are obviously very disturbing to the plaintiff and one can understand that such a continual reminder of a traumatic event such as the one experienced by the plaintiff, has a significant impact on his life. In considering this consequence for the plaintiff, it is to be remembered that the plaintiff was the recipient of a Goodyear Highway’s Hero Award for rescuing a person from a burning car some time prior to the incident involving Snowy and the Birregurra Hotel. The plaintiff is not a timid person by disposition. The incident involving Snowy in the Birregurra Hotel has had a very significant impact on his life.
Medication
92 The plaintiff has had numerous medications to try to assist him in the relief of his symptoms. I have referred to these medications previously in these Reasons and will not repeat the history of those in this section. The plaintiff’s evidence is that he no longer takes medication.
93 I find that the inability of the plaintiff to be assisted by the use of medication is a considerable consequence for him. The medical practitioners and the plaintiff are in agreement that the medications previously administered to him were of no help.
Ongoing treatment
94 The plaintiff is continuing to see Dr Coffey, psychologist, and Mr Carter. This treatment is overseen by the psychiatrist, Mr van der Linden. The treatment involves re-engaging the plaintiff with the community via his volunteer work at the CFA. The plaintiff was cross-examined at considerable length about his involvement in the CFA and his attendance upon various fires since the time he joined that fire brigade. I accept that this treatment has been a positive influence in ameliorating the symptoms suffered by the plaintiff. I also accept that the plaintiff has been genuinely driving this course of treatment for himself in order to better improve his situation.
95 However, it is clear that the plaintiff requires supervision by Mr Carter and the psychologist, Dr Coffey, in order to maintain the progress that he has made to date. The need for ongoing psychological and clinical assistance is indicative of the level of seriousness of the Post-Traumatic Stress Disorder that the plaintiff suffers.
Activities of daily living
96 The plaintiff gave evidence that he has withdrawn markedly from his social network. I accept that is the case. The plaintiff has been subjected to considerable cross-examination relating to his continuing social interaction on Facebook. I do not accept that that interaction with people on Facebook is a substitute for the previous involvement of the plaintiff in his social networks. Mr Inguianti has set out the withdrawal and decline by the plaintiff in that regard. I accept that evidence from Mr Inguianti, and he was not cross-examined about it.
Conclusion regarding psychiatric condition of the Plaintiff
97 I accept that the plaintiff has suffered a psychological and psychiatric condition which has been diagnosed as Post-Traumatic Stress Disorder. I accept that the nature and level of the Post-Traumatic Stress Disorder for the plaintiff is “severe” as required under the statutory narrative test.
98 I grant leave to the plaintiff to bring proceedings for pain and suffering damages as a result of his psychiatric injury arising out of, or in the course of his employment with the defendant, in particular, on 11 March 2010.
Loss of earning capacity
99 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
100 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
101 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
102 The plaintiff in this case seeks leave to bring proceedings for loss of earning capacity. I have previously determined that the plaintiff suffers from a Post-Traumatic Stress Disorder and that he have leave to bring a claim for damages for pain and suffering. In this case, the plaintiff has not worked since ceasing his employment in September 2011. The plaintiff is currently certified as unfit for all duties by his general practitioner, Dr Suguilon.
103 The issue in this part of the application by the plaintiff is whether or not his current status in respect of employment is permanent, in the sense that it is likely to last for the foreseeable future.
104 I am not satisfied that the plaintiff is likely to remain unemployed for the foreseeable future or that his income will be depleted to the extent of 40 per cent or greater. In reaching that conclusion, I rely, first of all, on my assessment of the plaintiff himself. The plaintiff, throughout the course of his treatment with medical practitioners, has insisted, and I accept, that he wishes to return to the paid workforce. In the time that he has been engaged in the CFA voluntary work, he has demonstrated a capacity to be around and work with the fire trucks and with other people. He has been in the position where he has been giving instructions to people in the fire ground.
105 In the report of Dr Colin Carter dated 14 February 2014, he sets out the plaintiff’s success at the CFA in the following terms:
“I believe however, much of this has been self driven by Mr Lloyd through his personal determination to ‘get better’ and be able to return to some type of employment. His voluntary involvement with the CFA is a significant positive factor toward his recovery. He is a very highly regarded member not only within his own brigade as 4th lieutenant, crew leader, and equipment officer, but across the South West, Division 6 CFA region for his frequent involvement In controlled burns, training exercises and command support roles at local incidents. … .”[48]
[48]PCB 78
106 Dr Carter goes on to state that the plaintiff has expressed hope that eventually he will be able to return to full-time employment.
107 The plaintiff, in his own evidence, stated that he was motivated to get back to work. The evidence was as follows:
Q:“Well are you telling this judge, this court that you’ve been motivated to get back to work?‑‑-
A:Yes I have.
Q:What have you done?‑‑-
A:The same thing, I’ve been trying to get back to work, getting the medical treatment I need. That’s why I’m seeing the specialist, they're the best in the business ‑ ‑ ‑.”[49]
[49]T151, L3-8
108 Dr Suguilon, when cross-examined about the plaintiff’s capacity to work, was asked the following questions and gave the following evidence:
Q:“If he is not working near gas, you would certify him for work, that’s effectively what I am asking you?‑‑-
A:Yes.
Q:Pardon?‑‑-
A:Modified duties.
Q:Have you ever given him a certificate for modified duties where he’s otherwise not exposed to gas, Doctor?‑‑-
A:Yes.
Q:Have you discussed with him in the last six months his returning to work?‑‑-
A:Yes, yes, I see him every month.
Q:And have you discussed with him his returning to work?‑‑-
A:I have.”[50]
[50]T220, L26 – T221, L3
109 In terms of the motivation of the plaintiff to involve himself in paid employment, Dr Suguilon gave the following evidence:
Q:“And I’m now asking you whether at any stage after 17 May 2011 he’s come to your clinic like he did seeking a medical release to be involved with the CFA whether he’s ever come seeking a release to go back to work as a truck driver?‑‑-
A:Peter would always come and see me wanting to work as long as he is not exposed to the fumes, and gas. Peter is someone who wants to work.”[51]
This is clear confirmation of what the plaintiff and other medical practitioners have stated about the plaintiff’s ambition and desire to return to paid employment.
[51]T225, L29 – T226, L4
110 Dr Suguilon, in her evidence, goes on to set out the difficulties as she saw them with the plaintiff being employed in truck driving:
Q:“So the limitation on his employer would be, if he’s driving, would be that where he fills up that he’s not exposed to gas fumes and the like?‑‑-
A:M’mm.
Q:And where he works he’s not exposed to gas fumes and the like?‑‑-
A:But then another problem is if he’s not sleeping.
Q:Yes?‑‑-
A:If he only sleeps two hours at night, and if you drive a truck the next day, long distances, I don’t want to be someone who is in the road with him.
Q:No, no, I understand that?‑‑-
A:Yes.
Q:So there’s a two-fold issue for you as a doctor, for his employability as a truck driver. The first one is to do with the fumes?‑‑-
A:M’mm.
Q:And the second one is because of his insomnia, his sleeplessness. Is that the right way to describe it?‑‑-
A:That’s right, yes.”[52]
[52]T239, L2-16
111 Dr Suguilon finally stated that she was optimistic that the plaintiff could return to work.[53]
[53]T260
Conclusion
112 I have had the advantage of seeing the plaintiff give his evidence and the consistency of his approach about his desire to return to gainful employment. I accept that he is a genuine witness in that regard and that he will, after some further rehabilitation at the CFA and with the assistance of Dr Coffey and Mr Carter, be able to overcome his symptoms to the extent of being able to re-engage in the paid workforce. In that regard, I am not satisfied that the plaintiff’s loss of earning capacity has been proved for the foreseeable future.
113 The application for serious injury certification for loss of earning capacity is dismissed.
114 I am satisfied that the plaintiff has proved, in respect of pain and suffering consequences, that when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, can be fairly described as being “more than serious to the extent of being severe”. I accept that in respect of his pain and suffering consequences, that the plaintiff’s condition is for the foreseeable future.
115 The plaintiff has satisfied the statutory test for being granted leave to bring common-law proceedings to recover pain and suffering damages due to his Post-Traumatic Stress Disorder condition.
116 The plaintiff’s application for serious injury certification for loss of earning capacity is dismissed.
117 I will hear the parties on costs.
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