Maher v Ventia Utility Services Pty Ltd
[2018] VCC 1110
•27 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-16-04251
| BRENDAN JOHN MAHER | Plaintiff |
| v | |
| VENTIA UTILITY SERVICES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 17 July 2018 | |
DATE OF JUDGMENT: | 27 July 2018 | |
CASE MAY BE CITED AS: | Maher v Ventia Utility Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1110 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – loss of earning capacity - psychiatric injury – causation – credit
Legislation Cited: Accident Compensation Act 1985; Evidence Act 2008
Cases Cited:Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Davies v Nilsen [2017] VSCA 202; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Noonan v State of Victoria [2013] VSCA 289; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr B Johnstone | Goodman Group Lawyers |
| For the Defendant | Mr T Ryan | IDP Lawyers |
HER HONOUR:
Preliminary
1 On 27 April 2012, Mr Maher was in the cabin of an excavator, on top of a barge, travelling across the Patterson River in Carrum Downs. The barge subsequently tipped over, causing Mr Maher to be thrown into the water (“the barge incident”). Mr Maher suffered some minor physical injuries in this incident, and also claims to have suffered a psychiatric condition, as a consequence of the fear he would drown in the water.
2 Mr Maher claims that he suffers serious consequences as a result of this psychiatric condition, both in respect of his pain and suffering and loss of earning capacity. In order for Mr Maher to be entitled to claim damages, his psychiatric impairment must satisfy paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant accepts that the barge incident occurred and that Mr Maher sustained some physical injuries as a result. However, the defendant disputes that the incident caused Mr Maher to suffer a permanent psychiatric condition.
4 Only Mr Maher was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material, including two affidavits from his fiancée. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that Mr Maher suffers a permanent psychiatric condition as a consequence of the barge incident, and that he has satisfied the requisite loss of earning capacity test, such that he should be granted leave to commence common law proceedings for both pain and suffering and pecuniary loss damages.
Mr Maher’s life before the barge incident
6 Prior to commencing his employment with the defendant 25 years ago, Mr Maher worked as a plant operator for the Dandenong Valley Authority. He said that he held licenses which allowed him to operate heavy plant, including excavators, elevated work platforms, forklifts, front end loaders, backhoes and heavy combination trucks.
7 Mr Maher said that motorcycling had always been a large part of his life and that he commenced riding motorcycles at a very young age. Mr Maher said that he rode motorcycles “hard and fast” and he was a member of the Ulysses Club, a motorcycling club.
8 Mr Maher also said that he owned fishing boats and that he used to go fishing and water skiing.
9 Mr Maher suffered some physical health ailments prior to the barge incident, including a deep vein thrombosis in his left thigh and left calf requiring the daily ingestion of warfarin, some neck and lower back pain in 2011 with tingling in his thighs, cholelithiasis and cysts in both kidneys in 2011 and some skin damage concerns in April 2012. Despite these physical health ailments, Mr Maher continued working full-time.
10 In the financial year in which Mr Maher suffered his injury, he earned $62,526 gross per annum.
The workplace accident and its claimed consequences
11 On 27 April 2012, Mr Maher was injured at work when the barge on which he was travelling tipped into a river. Mr Maher said that his memory of what happened afterwards was hazy, but that he could recall having great difficulty keeping himself afloat in the water due to the heavy clothing he was wearing. Mr Maher could not recall the manner in which he got to the shore, but remembers swallowing considerable amounts of water and requiring resuscitation.
12 Mr Maher described the incident as “very sudden” and “most traumatic”. He claimed that he suffered fractured ribs, inflammation of the lungs and consequent lung infection. He also suffered damage to his upper dental plate.
13 Following the incident, Mr Maher was driven home by his son. The following day, he found it difficult to move such that he attended general practitioner, Dr Osborne, at the Casey Medical Centre. Mr Maher was diagnosed with a muscular strain and given time off work.
14 Mr Maher accepted that a week after this attendance, for reasons irrelevant to this claim, he was informed that he could no longer consult Dr Osborne.
15 On 7 May 2012, Mr Maher obtained a WorkCover certificate from Dr Tomeritt at the Casey Medical Centre, certifying him as fit to return to work on light duties and restricted hours.
16 No medical report was tendered from the Casey Medical Clinic. The clinical records for the period 28 April 2012 until 9 May 2012 indicate that Mr Maher did not complain of any psychological distress to doctors at this clinic.
17 On 10 May 2012, Mr Maher lodged a worker’s compensation claim form, in which he referred to having suffered fractured ribs and a broken dental plate in the barge incident. This claim was subsequently accepted by the relevant statutory insurer.
18 Mr Maher obtained physiotherapy treatment, which assisted him in his physical recovery.
19 On 13 August 2012, the defendant arranged for Mr Maher to be examined by occupational physician, Dr Louise Barberis. In a report of that same day, Dr Barberis detailed the physical injuries which Mr Maher had suffered in the barge incident, and the treatment he had subsequently received. She also noted that Mr Maher had received an initial psychological debriefing and that he had not suffered any flashbacks to suggest a post-trauma syndrome. I note that the contents of this report were not put to Mr Maher in cross-examination.
20 On 27 August 2012, Mr Maher was cleared by Dr Histic at the Parkhill Medical Centre to work pre-injury duties and full-time hours.
21 No medical report was tendered from the Parkhill Medical Centre. The clinical records for the period 11 May 2012 until 28 June 2013 indicate that Mr Maher did not complain of any psychological distress to doctors at this clinic.
22 In March 2013, Mr Maher commenced consulting general practitioners at The Medical Clinic in Beaconsfield. No medical report was tendered from this clinic. The clinical records for the period 17 March 2013 until 13 April 2013 indicate that Mr Maher did not complain of any psychological distress to doctors at this clinic.
23 In May 2013, Mr Maher underwent surgery for the removal of his gallbladder and repair of an abdominal hernia. He recovered well from this surgery.
24 On 7 April 2014, Mr Maher suffered a right knee injury during the course of his employment. He lodged a WorkCover claim in respect of this injury.
25 On 6 June 2014, Mr Maher was examined by surgeon, Mr Philip Sharp, for the purpose of assessing whether or not the relevant statutory insurer should accept liability for proposed right knee surgery. In his report dated 6 June 2014, Mr Sharp recommended that liability be accepted. The report makes no reference to Mr Maher suffering psychiatric upset of any kind. Further, Mr Sharp noted that Mr Maher had not driven his motorcycle since this work accident. This report was not put to Mr Maher in cross-examination.
26 In June 2014, Mr Maher commenced attending the Casey Super Clinic, where he consulted numerous general practitioners, and was prescribed a range of medications for his physical conditions, including Warfarin and Nexium. No medical report or clinical records were tendered from this clinic.
27 In March 2015, a doctor from the Casey Super Clinic referred Mr Maher to psychiatrist, Dr Lanka Cooray. In a report dated 2 August 2015, Dr Cooray recorded that Mr Maher described the barge incident at his first consultation, before noting that he presented with low mood, dreams and nightmares, reduced appetite, poor concentration, lack of motivation, vague suicidal thoughts, and a general feeling of tiredness all the time. Dr Cooray further noted that Mr Maher became upset when speaking about the barge incident, that he felt anxious when thinking about it, and that he was preoccupied with his memories of the incident.
28 Dr Cooray diagnosed Mr Maher as suffering Major Depressive Disorder with Post Traumatic Stress symptoms. He was of the opinion that there was a causal relationship between Mr Maher’s condition and the barge incident, soon after which he started developing depressive symptoms.
29 In her clinical notes, Dr Cooray also noted that Mr Maher complained of memory loss and hand tremors.
30 Mr Maher consulted Dr Cooray on approximately 30 occasions from 5 March 2015 until 30 August 2017. Dr Cooray initially prescribed antidepressant medication Effexor, before later prescribing Ritalin and Paxam. At other times, Dr Cooray did not provide Mr Maher with any scripts. On several occasions, Mr Maher informed Dr Cooray that he was not taking the medication she had prescribed him. In cross-examination, Mr Maher said that he would forget to take his medication.
31 On 7 August 2015, Mr Maher signed a Victim Impact Statement in respect of the criminal proceedings brought against his employer, in relation to the barge incident, in which he claimed to have suffered from flashbacks and recurring nightmares. Mr Maher said that he had trouble sleeping, that he often felt depressed and that he had suicidal thoughts on occasion.
32 In his first affidavit, sworn on 11 March 2016, Mr Maher stated that he received debriefing from a psychologist in the post-accident period. Whilst he initially thought that he had recovered well psychologically, he said that, as time passed, his symptoms began to increase. Mr Maher said that he had been treated by “psychologists/psychiatrists”, including Dr Cooray, whom he was seeing at that time. In cross-examination, Mr Maher said that he did not know the difference between a psychologist and psychiatrist, and that there was only one other person whom he recalled consulting prior to Dr Cooray, and that such person, whose name he could not recall, was based in Beaconsfield. He said that he was dissatisfied with this person and therefore requested that his general practitioner refer him to a new psychiatrist, which is how he came to consult Dr Cooray.
33 In this affidavit, Mr Maher also stated that whilst he continued in employment with the defendant, he did so with ongoing difficulties, and that he often experienced stress and distress during site inductions. Mr Maher also said that he was often awake for long periods during the night and that, as he was unable to sleep, he would get up to go to work at 4.45am.
34 In early January 2017, Mr Maher lodged an annual leave application for the period 27 December 2017 until 1 March 2018. He said that his employer told him he was required to take this leave, as he had significant annual leave owing to him. He said that whilst he contemplated travelling to Europe, he ultimately never took this trip or such annual leave.
35 On 7 March 2017, Mr Maher was injured at work when he suffered a loss of consciousness which caused him to fall from a truck. After this incident, Mr Maher said that his employer required him to attend the Valewood Clinic in Mulgrave, from which he was referred to the Dandenong Hospital. He was subsequently admitted and underwent a number of investigations, including a CT and MRI scan of his brain. Both these scans were reported as normal. Mr Maher was ultimately diagnosed as having suffered an unexplained syncopal episode.
36 Mr Maher said that his memory loss and hand tremors worsened after this incident.
37 Mr Maher had time off work following this incident and was certified as fit for modified/alternate duties in April 2017.
38 In approximately early to mid-June 2017, Mr Maher told a workmate that he was going to hang himself. He said that he felt very stressed due to his symptoms, and that he had a “confused mind, loss of self-esteem and having been removed into a lesser position, with a lesser income”.
39 The defendant then made arrangements for Mr Maher to obtain counselling, via telephone, from psychologist, Mr Mark Prescott, who was based in Sydney. Mr Maher said that he spoke to Mr Prescott on about four occasions over a three week period.
40 In a report dated 20 July 2017, Mr Prescott noted that he had obtained a history that Mr Maher had suffered Post Traumatic Stress Disorder (“PTSD”) following a workplace accident, but that he had subsequently returned to normal functioning. It was noted that his most recent episode of depressive symptoms and thoughts of self-harm, was strongly linked to financial issues. Mr Prescott noted that Mr Maher felt that he had been unable to discuss his concerns with anyone, but that once he had verbalised his thoughts of self-harm, he was put on restrictive duties, which further exacerbated his money problems. In cross-examination, Mr Maher accepted that he reported money concerns to Mr Prescott.
41 In late June 2017, Dr Cooray noted that Mr Maher had suffered a mental breakdown with suicidal tendencies two weeks earlier, for which she prescribed him Effexor medication.[1] However, the pharmaceutical records indicate that Mr Maher did not fill this script.
[1]The clinical note refers to Venlafaxine, the generic name for Effexor.
42 On 27 June 2017, whilst driving a vehicle at work, Mr Maher experienced abdominal discomfort such that he pulled up on the side of the Maroondah Highway and got out of the vehicle as he felt he was going to vomit. Mr Maher was taken by ambulance to the Box Hill Hospital, where investigations did not reveal anything abnormal.
43 On 20 July 2017, Dr Cooray provided Mr Maher’s solicitors with an updated medical report, in which she stated that, in her opinion, Mr Maher had recovered from his psychiatric injuries following the treatment he had received, that his mental state was stable and that he was not on any medications. Dr Cooray stated that she would continue to review Mr Maher on a monthly basis, to ensure there was “no emergence of psychiatric symptoms.” She was of the opinion that Mr Maher’s short, medium and long-term prognosis was good.
44 On 2 August 2017, Mr Maher consulted Dr Cooray, at which time she noted that he was mentally stable, was working full-time, but was not driving his ute. It was also noted that Mr Maher was planning a trip overseas in December of that year. At this time, Mr Maher was again prescribed Effexor, which he had filled at his pharmacy on 5 August 2017.
45 Mr Maher last consulted Dr Cooray on 30 August 2017, at which time she noted that his brother had passed away and that Mr Maher was “very distressed.” Dr Cooray doubled his prescription of Effexor.
46 Mr Maher said that he found the death of his brother very difficult, as he had previously been able to debrief with his brother about the barge accident. He said that he also missed his support and understanding.
47 Mr Maher said that he felt unsupported by Dr Cooray, upon being informed that, in her opinion, he had recovered from his psychiatric problems. At the instigation of his fiancé, Mr Maher agreed to consult her long-standing general practitioner, Dr Carolyn Payne.
48 On 31 August 2017, Mr Maher first consulted Dr Payne. Her clinical notes of this attendance indicated that she conducted a general medical examination, prescribed anti-depressant medication and referred Mr Maher to psychiatrist, Dr Farazdak Al Wahab. A letter of referral dated 31 August 2017 stated that Mr Maher was seeking an assessment and further management regarding his PTSD and depression, secondary to an incident at work five years earlier in which he had almost drowned.
49 The following day, Dr Payne consulted Mr Maher’s fiancé and obtained greater detail as to the barge incident, and the symptoms he had subsequently developed. This more detailed history was subsequently provided to Dr Al Wahab in a further letter of referral, also dated 31 August 2017.
50 On 12 October 2017, Mr Maher consulted Dr Al Wahab for the first time. In a report dated 23 October 2017, Dr Al Wahab detailed Mr Maher’s history, noting that his main issue was the barge incident. He noted that Mr Maher had suffered panic attacks, nightmares, flashbacks and some suicidal thoughts as well as sleep disturbance. At that time, Dr Al Wahab diagnosed Mr Maher as suffering from severe PTSD and co-morbid severe major depression, with no psychotic features. He prescribed Mr Maher Fluoxetine and Prazosin.
51 On 28 November 2017, Mr Maher underwent an MRI scan of his brain, due to his forgetfulness and hand tremor. This was reported as demonstrating mild to moderate chronic ischaemic changes and mild to moderate atrophy of the brain, without sinister distribution.
52 On 8 December 2017, Mr Maher ceased work due to his psychiatric upset. He said that he was frustrated as he was doing menial tasks and was not permitted to sit in the office’s tea room.
53 The following week, when he tried to return to work, Mr Maher was told by his employer that he needed a full medical clearance. Mr Maher said that he spoke to Dr Payne who refused to give him the clearance, and instead certified him for further time off work.
54 On 27 December 2017, Mr Maher attended a meeting at his employer’s office for the purpose of discussing his return to work. This meeting was attended by Mr Maher, his union representative and several people from his employer, including Ms Marg Jarvie. Ms Jarvie prepared an email note that same morning, which stated that, due to the barge incident, Mr Maher had days when he felt down, and when feeling like that, it had caused him to feel overwhelmed when he was asked to clean up the employer’s depot. It was also noted that Mr Maher had been upset upon being asked to leave the tearoom.
55 At the conclusion of the meeting, Ms Jarvie noted that Mr Maher had been informed that he had three options:
(i) he could lodge a WorkCover certificate which related his inability to work to the barge incident;
(ii) he could lodge a WorkCover certificate which related his inability to work to the barge incident and the current work demands to clean up the depot;
(iii) he could claim sick leave for the prior week, and then obtain a clearance to return to work on full duties.
56 Mr Maher said that he discussed these options with Dr Payne, who then provided him with a WorkCover certificate attributing his absence from work to the barge incident. Mr Maher has continued to receive certificates of total incapacity since that time.
57 In late January 2018, Mr Maher discussed his WorkCover claim with Ms Carol Dsouza, a claims officer at the relevant statutory insurer. Her note of this conversation recorded that Mr Maher felt that he had been bullied by his supervisor at work. Mr Maher denied that he had felt bullied, but accepted that his workmates had told him things that his supervisor had been saying about him, and that he felt it was a hostile situation, which troubled him. Although Ms Dsouza recommended that Mr Maher should lodge a fresh WorkCover claim in respect of the alleged bullying, this was never done.
58 In January 2018, Mr Maher was also reviewed by neurologist, Dr Gangadharan Ganesvaran, in relation to his memory troubles and his hand tremor. In his report dated 12 January 2018, Dr Ganesvaran noted that, upon examination, Mr Maher had a mild degree of postural and action tremor in his hands bilaterally, with no significant Parkinsonism. Having reviewed the recent MRI scan of Mr Maher’s brain, Dr Ganesvaran noted that there was no suggestion of a neurodegenerative dementing process. He noted that Mr Maher’s blood tests were unremarkable for any underlying cause for cognitive impairment or tremor.
59 Dr Ganesvaran noted that he had discussed possible treatment options with Mr Maher, including a trial of a beta-blockers, but that Mr Maher had felt that his tremor symptoms were not bothersome enough to require regular medication. As a result, Dr Ganesvaran did not make any further appointments to see Mr Maher.
60 Mr Maher continues to consult Dr Payne and Dr Al Wahab on a regular basis. Mr Maher is currently prescribed Lovan, 20 milligrams, three times per day and Minipress, 2 milligrams, two at night.
61 In his report dated 8 March 2018, Dr Payne stated that, in addition to having referred Mr Maher to Dr Al Wahab, she had provided supportive counselling to him on a regular basis. She noted that his condition had been exacerbated when he had been unable to return to work, and possibly due to his upcoming court case. Dr Payne diagnosed Mr Maher as suffering PTSD with comorbid major depression, which was a direct result of the barge incident.
62 Dr Payne was also of the opinion that Mr Maher’s incapacity for work was a direct result of the barge incident. Dr Payne considered that Mr Maher will likely have long-standing psychiatric difficulties, and will continue to need regular treatment and medication.
63 In a report dated 12 March 2008, Dr Al Wahab confirmed that he had continued to treat Mr Maher on a regular basis, and had demonstrated breathing exercises, visual and hearing mindfulness and progressive muscle relaxation, with trauma focused cognitive behavioural therapy. Dr Al Wahab noted that, by February 2018, Mr Maher’s nightmares had decreased in frequency and that he had started to have nights that were free of nightmares. Dr Al Wahab also noted that Mr Maher had started to feel that his mood was better and he was more active during the day. However, Mr Maher continued to experience flashbacks of the barge incident.
64 Dr Al Wahab was of the opinion that, given he had been experiencing PTSD symptoms for the last four to five years, and given the chronicity of such symptoms, Mr Maher’s prognosis was guarded, and probably poor. Dr Al Wahab stated that whilst some of Mr Maher’s symptoms, including his nightmares, had improved, other PTSD symptoms, such as his flashbacks and avoidance, may take years to improve.
65 Dr Al Wahab stated that it was hard to know the nature of Mr Maher’s cognitive impairment and recommended further investigations be done to determine the possible cause.
66 Mr Maher said that he suffers from flashbacks and that he lies in bed thinking about the incident. He said that he also has frequent nightmares, often about the barge. He also dreams about seeing his deceased father and being at the “golden gates”. He said these dreams sometimes cause him to wake from his sleep.
67 Mr Maher said that he feels depressed and morose.
68 Mr Maher said that he now argues with his fiancée, Ms Leanne Varga, and that their relationship has deteriorated badly. He said that his mood disturbance, irritability and depression cause the arguments. This has also affected his relationship with Ms Varga’s children. Mr Maher said that his memory remains bad, as does his concentration and libido. He said that he lacks energy and that he does very little at home which further upsets him. Mr Maher said he is constantly nervous, that he worries incessantly and that he has difficulties expressing himself.
69 Mr Maher said that he does not enjoy motorcycle riding as much, especially in the rain. He also said that he had only been out on a boat once since the barge incident.
70 Mr Maher relied upon two affidavits sworn by his fiancée, Ms Varga, in support of his application. In these affidavits, Ms Varga detailed the changes she observed in her partner following the barge incident.
71 Ms Varga noted that, since the barge incident, Mr Maher’s sleep has been disturbed, and she has witnessed him have nightmares as well as crying in his sleep. Ms Varga also said that Mr Maher had become moody and irritable, and was at times aggressive. She also said that their sexual relationship had deteriorated markedly, as Mr Maher had little interest in sex.
72 Ms Varga also stated that whilst Mr Maher still owns his two Harley Davidson motorbikes, he only rides them very occasionally and has only been to one motorbike rally.
73 Ms Varga said that, since the barge incident, Mr Maher has “lost interest in life, his pride and his esteem has been diminished”. She said that he does very little work at home, such as cleaning up the backyard or maintaining the garden.
Medico-legal evidence
74 Mr Maher’s solicitors arranged for him to be examined by psychiatrist, Dr David Weissman, on three occasions in November 2015, June 2017 and February 2018. In his first report dated 19 November 2015, Dr Weissman obtained a history from Mr Maher as to the barge incident, noting that, at that time, Mr Maher was seeing psychologist, Dr Cooray, every four weeks and that he was also taking two types of medications for “stress” and to make him “focus better”.
75 Dr Weissman described Mr Maher as alexithymic, in that he found Mr Maher had difficulties articulating and expressing his emotional state and feelings.
76 Dr Weissman was of the opinion that Mr Maher suffered from moderate, classical and discernible, chronic PTSD symptoms and traumatisation features, directly due to the circumstances of the “transport accident itself” (sic). Further, he was of the opinion that Mr Maher had a full-blown chronic PTSD and chronic Adjustment Disorder with Anxious and Depressed Mood of mild to moderate intensity or severity.
77 In relation to his work capacity, Dr Weissman said that, due to these psychiatric conditions, Mr Maher was totally and permanently incapacitated to perform his pre-injury duties as an excavator operator. Dr Weissman was surprised that Mr Maher was able to perform full-time alternative/restrictive duties given the nature, severity and extent of his incident-related psychiatric symptoms and advancing age.
78 At that time, Dr Weissman recommended that Mr Maher continue consulting Dr Cooray on a monthly basis and continue taking psychotropic medications. Dr Weissman also recommended that Mr Maher take Benzodiazepine medication and possibly a mood stabiliser such as Valproate or Quetiapine, and that he consult a general practitioner on a regular basis for supportive therapy.
79 In his second report dated 15 June 2017, Dr Weissman again diagnosed Mr Maher as suffering from at least moderate, classical and discernible chronic PTSD symptoms and traumatisation features directly due to the circumstances of the industrial accident itself. Dr Weissman considered Mr Maher’s depressive syndrome to be much more severe than it had been at the previous examination and thought that Mr Maher was suffering moderate to moderately severe mixed depressive symptoms, signs and features with, worryingly, passive suicidal ideation, but with no active suicidal plan or intent. Dr Weissman recommended that Mr Maher continue to consult his general practitioner and psychiatrist for treatment and, if tolerated, to increase the dose of Effexor to between 150 milligrams to 300 milligrams daily to help control the worst of his symptoms and prevent further deterioration in his psychiatric state.
80 In relation to his work capacity, Dr Weissman again expressed his surprise at Mr Maher’s ability to continue working on a full-time basis with such symptoms, before noting that, in his clinical experience and expertise, most people with Mr Maher’s symptoms would not be able to work at all.
81 Dr Weissman was of the opinion that Mr Maher’s prognosis for the future was quite uncertain and guarded, and probably fairly poor, negative and unfavourable.
82 In his third report dated 27 February 2018, Dr Weissman noted that Mr Maher had fallen from a truck on 7 March 2017 and that his brother had passed away during 2017.
83 Dr Weissman made the following observation:
“Mr Maher came across as a stoical, non-complaining, laconic person who, if anything, tends to underestimate, under-report, minimise and de-emphasise his psychiatric (and physical) symptoms and distress.”
84 Dr Weissman’s diagnosis remained unchanged in respect to Mr Maher’s PTSD. However, he also considered that he was suffering from a moderate to moderately severe mixed depressive and anxiety syndrome with intermittent passive suicidal ideation and anhedonia.
85 Dr Weissman recommended that Mr Maher continue to consult his general practitioner on a monthly basis and his psychiatrist on a fortnightly basis. Again, Dr Weissman recommended that Mr Maher take a “very solid dose” of antidepressant medication as well as a mood stabiliser, as such medication would help control the worst of his symptoms and prevent further deterioration.
86 In terms of work capacity, Dr Weissman was of the opinion that Mr Maher was totally incapacitated for all work and that his prognosis was quite uncertain and guarded, and most likely relatively poor, negative and unfavourable.
87 In his final report dated 2 April 2018, Dr Weissman reviewed a number of documents provided to him by Mr Maher’s solicitors. Having read this material, Dr Weissman concluded that there was no reason for him to change the opinion outlined in his previous report.
88 The defendant arranged for Mr Maher to be examined by psychiatrist, Dr Natalie Krapivensky, on three occasions from April 2016 until June 2018. In her first report dated 9 April 2016, Dr Krapivensky detailed the history she obtained from Mr Maher regarding the barge incident. She noted that, at that time, he continued to have daily intrusive ruminations of the event, experienced daily flashbacks and suffered from irritability. Dr Krapivensky noted that Mr Maher said his mood was depressed, but slowly improving. She also noted that he described markedly diminished memory, concentration and orientation.
89 Dr Krapivensky considered Mr Maher suffered from resolving PTSD and recommended that his antidepressant medication be increased to promote improvement in his symptoms.
90 On 13 July 2017, Dr Krapivensky re-examined Mr Maher. In her report dated 24 July 2017, Dr Krapivensky noted that Mr Maher had suffered a syncopal episode in May 2017 and that he described particularly impaired short-term memory. She noted that he described no significant symptoms of anxiety and no panic attacks, but that he often thought about the barge incident. Dr Krapivensky noted that Mr Maher enjoyed spending time with his new granddaughter. She noted that Mr Maher continued to be disturbed by nightmares, but noted these had become less frequent.
91 Dr Krapivensky was of the opinion that whilst Mr Maher reported symptoms of traumatisation, they were not sufficient to make a diagnosis of PTSD. She also felt that a diagnosis of major depression could no longer be made.
92 On 21 May 2018, Mr Maher was re-examined by Dr Krapivensky. In her report dated 5 June 2018, Dr Krapivensky noted that Mr Maher complained that the barge incident was on his mind every day and that he sometimes cried and walked away from other people. It was noted that Mr Maher had suicidal thoughts. However, she stated that it was her “impression” that his suicidal thoughts were now less frequent and less intense, and that his overall quality of life and enjoyment of life had improved.
93 In relation to sleeping patterns, Dr Krapivensky noted that Mr Maher reported being restless and thrashing around in bed, two to three times per week, but that he had no memory of any unsettling dreams. I note that this comment contradicts what is stated in Mr Maher’s affidavits. I also note this medical report of Dr Krapivensky was not put to Mr Maher in cross-examination.
94 Dr Krapivensky reviewed the MRI scan taken in November 2017 and considered the ischaemic changes and atrophy on the brain, to provide adequate explanation for Mr Maher’s observed cognitive difficulties.
95 Dr Krapivensky noted that whilst Mr Maher presented with some symptoms of traumatisation, in her opinion, these did not meet the full diagnostic criteria for a diagnosis of PTSD. She was also of the opinion that his depressive illness was being well-managed with the use of high dose antidepressant medication. Further, Dr Krapivensky considered that, in describing himself as irritable, argumentative and overcome by memories of the barge incident, Mr Maher was demonstrating symptoms of emotional over-reactivity, which she thought may be consistent with the ischemic changes and brain atrophy seen on his MRI scan. Dr Krapivensky was ultimately of the opinion that Mr Maher did not suffer a current psychiatric condition diagnosable in accordance with DSM-5 criteria.
96 Dr Krapivensky was of the opinion that Mr Maher’s inability to work was due to his cognitive impairment.
97 The defendant also arranged for Mr Maher to be examined by Associate Professor Peter Doherty on two occasions in July 2017 and June 2018. In his first report dated 20 July 2017, Associate Professor Doherty detailed the history he obtained from the plaintiff in relation to the barge incident and the impact it had upon his life. He noted that, at that time, the nightmares had reduced. Associate Professor Doherty noted that Mr Maher said that his moods were up and down. He also noted that Mr Maher told him that his nightmares rarely occurred and that he could not remember them. I note that this is inconsistent with what Mr Maher stated in his affidavits sworn 4 February 2017 and 9 August 2017. This medical report of Associate Professor Doherty was not put to Mr Maher in cross-examination.
98 Further, I note that Associate Professor Doherty stated that Mr Maher did not exhibit any emotional upset during the interview. In his affidavit sworn 9 August 2017, Mr Maher expressly disputed this statement and said that, at the end of the interview he was in tears for quite some minutes.
99 Associate Professor Doherty was of the opinion that Mr Maher was not suffering a diagnosable psychiatric condition, but that he was developing a progressive cognitive impairment which he recommended be investigated.
100 On 15 June 2018, Mr Maher was re-examined by Associate Professor Doherty. In his report dated 21 June 2018, Associate Professor Doherty detailed Mr Maher’s current condition, noting that he suffered significantly impaired memory loss. As such, Associate Professor Doherty considered that all history taken from Mr Maher was now unreliable.
101 Associate Professor Doherty stated that there was no “upswelling of symptoms of traumatisation or depressive symptoms due to the barge incident”. Associate Professor Doherty considered that Mr Maher’s condition had deteriorated since the previous examination, but related this to the deterioration in his cognitive functioning. Associate Professor Doherty was of the opinion that the psychological injuries relevant to the barge incident did not affect his capacity to work.
102 Further, Associate Professor Doherty did not relate Mr Maher’s cognitive impairment to the barge incident.
Mr Maher’s credibility and reliability
103 I consider Mr Maher to be a creditworthy witness, who gave frank evidence and who did not attempt to embellish his answers. Mr Maher readily accepted aspects of his past medical history and the presence of other unrelated health conditions. He openly conceded that the second half of 2017 had been a “hell of a six months”, and that there were a range of matters which were a source of stress to him during this period. I considered such evidence to be a reflection of his credibility.
104 Dr Weissman considered that Mr Maher was alexithymetic, in that he found it difficult to articulate and express his emotional state. In an affidavit sworn 9 August 2017, Mr Maher stated that he had great difficulty in expressing himself, not only to his treating psychiatrist, but to others around him. This was evident in his presentation whilst giving oral evidence.
105 Mr Maher had a strong work ethic, as demonstrated by his continuation at work, despite suffering ongoing intrusive and depressive thoughts. I note that in June 2017, Dr Weissman considered it surprising that Mr Maher continued at work, given the extent of his psychiatric condition. I accept that, at that time, Mr Maher considered that he was being supported by his employer and that his work was the “only thing” that kept him going.
106 On many occasions, Mr Maher was unable to recall details of who he saw for treatment or what medication he was taking, and at what times. I accept that Mr Maher suffers memory problems which impacted upon his ability to reliably recall such details. However, such memory difficulties did not impact upon my overall assessment of his credibility.
Mr Maher’s memory problems and cognitive disturbance
107 Mr Maher and Ms Varga both reported that Mr Maher had suffered memory loss problems since the barge incident. Further, Mr Maher acknowledged these problems had worsened, following the syncopal episode.
108 These problems have been investigated with medical imaging. At this time, there is no diagnosis of an organic brain injury, although atrophy and ischaemic changes were noted on the MRI scan taken in November 2017.
109 Dr Weissman stated that it was possible, if not probable, that Mr Maher’s:
“apparent cognitive dysfunction is entirely caused by so-called psychological, functional and non-organic factors related to his industrial accident. However it is not possible for me to exclude some separate organic, cerebral pathology.”
110 Dr Cooray, Dr Al Wahab, Dr Ganesvaran and Dr Payne are all treating doctors, none of whom related Mr Maher’s memory problems to the barge incident. Nor did Dr Krapivensky or Associate Professor Doherty.
111 Despite the apparent temporal connection between the onset of symptoms and the barge incident, given the weight of the medical evidence, I am not satisfied that Mr Maher’s memory problems or cognitive disturbance can be attributed to the barge incident.
112 Therefore, in assessing Mr Maher’s application, I will disregard such symptoms and consequences.
Is the barge incident a cause of Mr Maher’s current psychiatric condition?
113 The defendant acknowledged that the barge incident was frightening and that it would have been traumatic for Mr Maher. However, it disputed that the incident caused him any ongoing psychiatric condition. The defendant emphasised that there was a significant delay in Mr Maher obtaining any psychiatric treatment. Further, the defendant focused on the opinion of Dr Cooray that, as at July 2017, she was of the opinion that Mr Maher had recovered from his psychological upset arising from the barge incident. Instead, the defendant submitted that other unrelated events and circumstances had impacted upon Mr Maher’s mental state since 2017, and that his application should therefore be dismissed.
114 The defendant asked me to draw an adverse inference from the absence of medical reports from the five medical clinics which Mr Maher had attended prior to commencing his treatment with Dr Payne. No adequate explanation was offered for their absence. I can infer that such reports would not have assisted Mr Maher in his application, but I cannot speculate as to what the doctors at such clinics would have said.
115 I note that the clinical records of the Casey Medical Centre, the Parkhill Medical Centre and The Medical Clinic made no reference to Mr Maher complaining of any psychiatric or psychological upset. This is consistent with Mr Maher’s evidence, and I therefore give little weight to any inference that could be drawn from the absence of reports from this clinic.
116 In relation to the absence of a report from the Valewood Clinic, I accept Mr Maher’s evidence that he attended this clinic at his employer’s request following the syncopal episode. Given Mr Maher was being treated by Dr Cooray at this time, I also give little weight to any inference that could be drawn from the absence of a report from this clinic.
117 There is no report from the Casey Super Clinic, where Mr Maher attended for several years, and I infer that such a report would not have assisted Mr Maher in his application. However, I note that a doctor from this clinic referred Mr Maher to Dr Cooray. The letter of referral was not tendered. However, it is apparent from Dr Cooray’s medical reports and clinical records, that she treated Mr Maher in relation to his psychological upset from the barge incident, together with his memory loss and hand tremors. Therefore, although I draw an adverse inference from the absence of a report from the Casey Super Clinic, and give this inference some weight, I consider the reports and records of Dr Cooray substantially overcome the importance of this inference.
118 In considering the whole of the evidence, and accepting Mr Maher as a credible witness, I am satisfied that Mr Maher did not complain of psychiatric upset until a short time prior to consulting Dr Cooray. I accept that he genuinely cannot recall the name of the psychologist/psychiatrist he saw prior to Dr Cooray. I make no criticism of Mr Maher for this.
119 I accept Mr Maher’s evidence that he persisted at work, despite his difficulties with flashbacks, nightmares, difficulties sleeping and lowered mood. I accept that he loved his work and that he felt the support from his work colleagues kept him going.
120 In 2017 a number of events occurred, unrelated to the barge incident, which caused Mr Maher psychological upset. His memory loss worsened. His brother died. He was placed on restricted duties and earned less money. The company who employed him changed hands, and he did not feel as supported as he previously had. These events occurred in the context of a man who had been suffering PTSD and depression, as a consequence of the barge incident, since at least March 2015.
121 Dr Weissman was of the opinion that Mr Maher’s PTSD and depression continue to be a consequence of the barge incident.
122 In July 2017, Dr Cooray stated that, in her opinion, Mr Maher had recovered from the barge incident. However, I note that she was prescribing Mr Maher antidepressant medication at this time and that his dosage was subsequently doubled at his last attendance with her on 30 August 2017. Such treatment seems inconsistent with her opinion that he had recovered and that his prognosis was good.
123 I accept Mr Maher’s evidence that he felt unsupported by Dr Cooray when he was informed of her opinion in the report of July 2017.
124 Dr Al Wahab has treated Mr Maher on a regular basis since September 2017. He is of the opinion that Mr Maher continues to suffer PTSD and depression as a consequence of the barge incident.
125 Dr Krapivensky and Associate Professor Doherty are of the opinion that Mr Maher has recovered from any psychological upset attributable to the barge incident. However, I note that there are aspects of their reports which are inconsistent with Mr Maher’s oral and written evidence. In particular, the frequency of intrusive thoughts and nightmares. These complaints are highly relevant to a diagnosis of PTSD. Such histories were not put to Mr Maher in cross-examination. Given I accept him as a credible witness, I prefer his evidence to the inconsistencies contained within those medical reports. In such circumstances, I gain little assistance from the opinions of Dr Krapivensky and Associate Professor Doherty, as I consider they are, in part, dependant on an inaccurate history.
126 I note that the barge incident need not be the sole cause of Mr Maher’s psychiatric condition. Instead, the barge incident must be a real, effective or proximate cause of Mr Maher’s psychiatric condition.[2] In taking a “whole of evidence”[3] approach, for the reasons detailed above, I am so satisfied.
[2]Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at [72]
[3]Davies v Nilsen [2017] VSCA 202
Does Mr Maher’s psychiatric condition result in serious pecuniary loss?
127 To succeed in his application, Mr Maher bears the onus of satisfying me that, as at the date of the hearing, as a consequence of his psychiatric condition, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Maher is capable of earning, whether in suitable employment or not.
128 In closing submissions, Mr Ryan referred me to the Court of Appeal decision of Noonan v State of Victoria.[4] This case involved an appeal in relation to a trial judge’s refusal to grant leave pursuant to s135A(4)(b) of the ACA. Mr Noonan claimed to have suffered a severe psychiatric condition as a consequence of his employment as a police officer between 1981 and 1990. At the time his application was heard, Mr Noonan was earning approximately $200,000 per annum as a security manager.
[4][2013] VSCA 289
129 Mr Ryan cited this authority as an example of a case comprising a “complex matrix of facts”[5] and as a reminder that such applications should not be resolved simply by reference to doctors’ opinions.[6] Mr Ryan considered Noonan’s case analogous to Mr Maher’s application, in that here there is also a complex matrix of facts, and that for a considerable period of time after the barge incident, Mr Maher earned a greater income than he had in the pre-accident period.
[5]Ibid at [13]
[6]Ibid at [22]
130 I accept that Mr Maher’s circumstances since April 2012 could be described as comprising a complex matrix of facts. As well as the delay in his need for psychiatric treatment, Mr Maher has suffered unrelated medical problems, and his inability to work occurred over five years after the barge incident. I must analyse these circumstances and consider the totality of the evidence tendered in this matter, including the evidence of Mr Maher and Ms Varga, and the tendered medical reports and clinical records, and must then consider whether, as at the date of hearing, Mr Maher has suffered, and will permanently suffer, at least a 40 per cent loss of his earning capacity.
131 Mr Maher has not worked at all since 8 December 2017. Dr Payne currently certifies Mr Maher as having no present capacity for any work due to his PTSD and severe depression secondary to the barge incident. However, Dr Payne is of the opinion that, with appropriate support, Mr Maher will likely return to work in the future. She does not elaborate on what this may entail.
132 Dr Al Wahab stated that PTSD and depression, as well as cognitive impairment, can lead to a decreased import performance at work. He stated that it was very hard for him to comment on Mr Maher’s work capacity, but noted that his “senior colleagues” agreed that he lacked the capacity to work at the moment. It is unclear who these senior colleagues are, but I note that Dr Al Wahab had reports from Dr Weissman, Professor Doherty and Dr Krapivensky.
133 Dr Weissman was of the opinion that, as a consequence of his psychiatric impairment, Mr Maher is totally incapacitated for all employment. Dr Weissman considered that Mr Maher’s prognosis for the future is quite uncertain and guarded, and most likely relatively poor, negative and unfavourable.
134 I prefer Dr Weissman’s opinion to that of general practitioner, Dr Payne. He is a psychiatrist who has examined Mr Maher on three occasions over three years. His report is detailed and provides a detailed analysis of all the reports provided to him, and I consider his assessment that Mr Maher will not return to work to be sound, and the most realistic medical opinion offered.
135 Dr Krapivensky and Associate Professor Doherty did not consider Mr Maher’s current incapacity for work was attributable to a psychiatric condition arising from the barge incident. As stated previously, I have reservations regarding such opinions, in circumstances where there are inconsistencies between Mr Maher’s evidence and parts of the histories recorded by these doctors relevant to symptoms of PTSD.
136 In cross-examination, Mr Maher said that he would like to be able to return to work on suitable duties and in a supportive environment. However, he conceded this would be subject to medical advice. Mr Maher is a stoic man. He worked for many years whilst suffering disturbed sleep, nightmares and intrusive thoughts. I am satisfied that he has a tendency to understate his complaints and I consider his optimism in relation to returning to work to be unrealistic in all the circumstances.
137 Having considered all of the evidence, I am satisfied that Mr Maher has no current capacity for suitable employment. I am also satisfied that this loss of earning capacity will be permanent.
138 Once a threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for Mr Maher meet the “very considerable test”.[7] Given my acceptance that Mr Maher’s psychiatric incapacity prevents him from returning to any form of employment, I consider his loss of earning capacity can be described as very considerable.
[7]s134AB(8)(c) of the ACA
139 As Mr Maher has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his psychiatric injury, it is not necessary for me to consider separately his pain and suffering consequences.[8] I shall therefore grant him leave to commence proceedings for pain and suffering and loss of earning capacity damages.
[8]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
140 I will make the consequent orders.
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