Mates v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mates v State of New South Wales (NSW Police Force) [2021] NSWPIC 527
APPLICANT:	Kieren Mates (by his Tutor Alyson Mates)
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	17 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Consideration of consequential condition (ruptured brain aneurism) following psychological injury; Held - the applicant suffered a consequential condition by way of stroke and/or brain aneurysm on 29 August 2019; the respondent is to pay the applicant weekly compensation in accordance with the application (at the current weekly wage rate of $1,823.81); the respondent is to pay the applicant’s costs as agreed or assessed; such costs are certified as complex for both parties and it is determined that a 30% uplift is appropriate in the circumstances.
DETERMINATIONS MADE:	1. The applicant suffered a consequential condition by way of stroke and/or brain aneurysm on 29 August 2019. 2. The respondent is to pay the applicant weekly compensation in accordance with the application (at the current weekly wage rate of $1,823.81). 3. The respondent is to pay the applicant’s costs as agreed or assessed. Such costs are certified as complex for both parties and it is determined that a 30% uplift is appropriate in the circumstances.

STATEMENT OF REASONS

BACKGROUND

Kieren Mates (the applicant) was a police officer who in January 2018 was involved in the arrest of a youth in Byron Bay.
The arrest was recorded and was subject to negative media scrutiny including being replayed on national television with allegations of the use of excessive force.
A Law Enforcement Conduct Commission (LECC) took place in March 2018 following which the applicant was cleared of using excessive force in the arrest.
The applicant’s case is that he experienced negative psychological symptomatology following both the media attention and the commission proceedings.
The applicant and his family moved to Goondiwindi in June 2018 to a new posting at Boggabilla Police Station.
On or about 21 August 2019, the applicant was advised that civil proceedings were being commenced in relation to the arrest. The applicant’s wife, Mrs Mates, describes a significant deterioration in the applicant's mental state at that time.
On 28 August 2019 the applicant was at the PCYC gymnasium where he suffered a major injury by way of stroke and brain aneurysm. Because of the applicant’s present condition he is unable to assist in providing any evidence in these proceedings.
On 11 October 2019, Mrs Alyson Mates was appointed as guardian for her husband for all personal matters.[1] She is acting as his Tutor in these proceedings.
[1] Application to Resolve a Dispute (the Application) page 6,954

ISSUE FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the applicant suffer a cardiovascular event consequential to his psychological condition.

PROCEDURE BEFORE THE COMMISSION

10.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
11.The matter proceeded with oral submissions on 19 October 2021. Following oral submissions, the parties provided written submissions, the respondent’s submissions dated 26 of October 2021 and the applicant’s submissions were received dated 12 November 2021.

Oral evidence

12.There was no application to adduce oral evidence.

EVIDENCE

Documentary evidence

13.The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents, and
(b) Reply to the Application to Resolve a Dispute and attached documents.

14.I will now turn to the evidence filed in this claim. My focus will naturally be on the material that submissions were made on.

Lay witnesses

Mrs Alyson Mates

Mrs Alyson Mates is the wife of Kieran Mates and acts as his Tutor. She provided a statement to ProCare Investigations on 24 February 2020.[2] The statement provides the background to the applicant’s injury and his current condition.
[2] Application page 9.
Mrs Mates first met her husband in 2000 and they were married in 2002. They have a son who was 10 years of age at the time of the statement.
Mr Mates was attested to the New South Wales Police Force in 2011 and his first posting was as a probationary constable in 2011 at Byron Bay Police Station.
In 2016 Mr Mates was promoted to Senior Constable.
At lunchtime on 11 January 2018 after Mr Mates awoke from his sleep having performed a night shift, he told his wife that he had been involved in the arrest of a young male who was on drugs and who had been running around naked. He explained that the young male had been very difficult to contain due to his rage and drug use. Further, Mr Mates explained that it took four officers to restrain and settle him down.
Approximately two weeks after the arrest of the young man, Mr Mates told his wife that there was an activist in the Byron Bay area who had obtained footage of the arrest. It appeared in the video that one of the officers arresting the young man had used his baton and that the media now had a copy of the video and were describing the arrest as occurring with the use of excessive force.
Two days later the footage was used on Australia’s Channel 9 A Current Affairs program and televised nationally. It was also shown on other media platforms such as Facebook.
Mrs Mates understands that her husband was informed that he needed to get to the Police Association as he may require assistance in relation to the incident.
It was around this time that Mr Mates expressed to his wife that he found it quite distressing to be involved in such a large level of negative publicity nationally as he was a very private person.
As the publicity persisted well into March 2018, Mrs Mates says she noticed that her husband’s mood was changing for the worse.
As events progressed Mr Mates told his wife that he had concerns and worries every time he went to work that he was being filmed and he started to feel overwhelmed and second guessed himself.
At his wife’s encouragement, Mr Mates saw a psychologist called Lynley Casey in Kingscliff.
An investigation took place in relation to the incident and the allegation of excessive force and it was conducted by LECC and commenced in late February 2018. Mr Mates was provided with a solicitor by the New South Wales Police Force.
The LECC hearings were to be conducted in open Court which was a change in procedure whereas previously they had been conducted behind closed doors.
Mrs Mates says that her husband became paranoid in the period of investigation to the extent that he thought his telephone calls may have been listened to and he was reluctant to speak to his solicitor by telephone.
Mrs Mates observed that during the investigation, her husband had experienced loss of appetite, a significant disruption to his normal sleeping capacity and appeared agitated. He started spending less time with their son and was vomiting every other day leading up to the Court case.
On 2 March 2018 Mrs Mates travelled to Sydney with her husband to Macquarie Street to prepare for the hearing. The New South Wales Police provided a psychologist to accompany him known as Alex.
The hearing was scheduled on 26 March 2018 and from the period of the preparation in Sydney in March 2018 until the end of the month, Mr Mates continued to work at Byron Bay performing his police duties at full-time capacity. During this period Mrs Mates observed behavioural and mood changes. Her husband was socialising less and was engaging a lot less with both herself and her son.
The hearing took place on 26 March 2018 in Sydney. The applicant attended and he returned home on 29 March 2018 after the hearing was complete.
Two weeks after the hearing Mr Mates was informed that he was cleared of all charges and no disciplinary action was to be taken.
Mr Mates returned to full-time duties however he was upset and felt it was unfair that he had to defend himself in circumstances where he was ultimately cleared of any wrongdoing. Mr Mates told his wife that he was not enjoying his work like he used to. He expressed that he had lost his confidence and felt like he was being watched and experienced anxiety and fear. In particular he was worried that he would have to apprehend a violent person and would once again be filmed and as such second-guessed himself in the execution of his duties.
In October 2018 Mr Mates applied to be transferred out of the Byron Bay Command area and although his first application was unsuccessful, he was ultimately transferred to Goondiwindi and the family arrived there on 13 June 2019. Before their arrival Mr Mates was able to complete his negotiator training by attending intensive training in both Sydney and Queensland which took place for two weeks in May 2019.
Mr Mates commenced at the Boggabilla Police Station as a general duties police officer.
Whilst there, Mr Mates was still experiencing nightmares and continued to deal with difficult members of the public.
Approximately one week before 29 August 2019 Mrs Mates understands that her husband received a telephone call from his lawyer who informed him that there was a civil claim being made in relation to the arrest on 11 January 2018.
Mrs Mates says that at that time her husband experienced a ‘significant regression’ in his symptoms of anxiety and had no interest in participating in the investigation process and was anxious.
Mrs Mates says that she was so concerned about his welfare that she tried to get him to get receive care again and to speak to someone similar to Alex.
On 29 August 2019 Mrs Mates received a telephone call from an individual at PCYC Gymnasium and she later understood that her husband had experienced a brain aneurysm and a heart attack.
Mrs Mates describes her husband’s current condition so that he has a complete loss of memory in that he cannot form any new memories and does not recognise anyone from his past such as herself or the rest of his family.

Chief Inspector Michael Dempsey

Chief Inspector Dempsey has provided a statement to ProCare dated 27 November 2020.[3] He first met the applicant when he was a constable in Byron Bay and observed him to be a good worker.
[3] Application page 20.
Chief Inspector Dempsey observed the applicant when he returned from the hearings in Sydney and observed him to be exhausted, frustrated and worried.
Chief Inspector Dempsey said that Mr Mates confided in him that he was not coping well and was experiencing difficulties sleeping.
Chief Inspector Dempsey understands the applicant moved to Goondiwindi to give his family a new start away from the negative publicity and attention he had received following the incident in January 2018.

Sergeant Darren McCaughey

Sergeant McCaughey has provided a statement dated 3 January 2021.[4]
[4] Application page 22.
Sergeant McCaughey first met Mr Mates when they were stationed at Byron Bay approximately seven years before he prepared his statement.
Sergeant McCaughey describes his relationship with the applicant as being a close working relationship which developed into a friendship outside of work.
Sergeant McCaughey was stationed at the Tweed Heads Police Station in January 2018 but returned to the Byron Bay Police Station as a relieving inspector to provide support for the officers involved in the alleged assault including Mr Mates.
Sergeant McCaughey observed a change in Mr Mates following the reporting of the incident on TV and the Law Enforcement Conduct Commission private and public hearings.
The applicant confided in Sergeant McCaughey that he was worried about his family and his job and his safety. He further stated that he was very distressed about his family being identified by members of the public and any potential adverse behaviour towards him from them.
On more than one occasion Sergeant McCaughey recalls the applicant becoming visibly teary and his voice breaking or cracking as he was speaking around the time of the LECC hearings.
In about March 2018 the applicant confided in Sergeant McCaughey that he felt withdrawn from his wife and son and he had become increasingly moody and irritable and that he had been having difficulty sleeping and he was constantly worrying and feeling anxious.
Sergeant McCaughey stayed with the applicant whilst the LECC hearings were conducted in Sydney at the same hotel. He observed the applicant to be very tired and stressed and worried.
On 31 March 2018, Sergeant McCaughey was so concerned for the applicant’s welfare that he submitted a P902 Incident Notification Form on behalf of the applicant.
Between 31 March 2018 and the events on 29 August 2019, Sergeant McCaughey continued to have contact with Mr Mates and during that time, observed the applicant continued to suffer psychologically.

MEDICAL EVIDENCE

I will now turn to the medical evidence

Sam Borenstein

59.Mr Borenstein is a clinical psychologist who prepared reports in support of the applicant’s claim. His first report is dated 21 April 2021.[5]
[5] Application page 6,995.
60.Mr Borenstein takes a history of the incident in January 2018 and the subsequent proceedings in the LECC.
61.Mr Borenstein assumes that the period of investigation and hearing was extremely stressful for Mr Mates and impacted on his mental state causing extreme emotional distress. Even though Mr Mates was eventually cleared of wrongdoing, he remained in a highly distressed state and traumatised.
62.Mr Borenstein also understands that approximately one week prior to the incident on 29 August 2019, Mr Mates was informed that the offender had commenced civil proceedings and the applicant had suffered a significant relapse of his condition.
63.Mr Borenstein was provided with a copy of Mrs Mates’ statement dated 6 March 2020 which he says summarises the cumulative and significant stresses the applicant was experiencing, particularly in the week before him suffering a stroke and brain aneurysm.
64.Mr Borenstein also comments that Mrs Mates’ observations of her husband are also consistent with the evidence of Chief Inspector Dempsey and Sergeant McCaughey.
65.In addition to the evidence of Mrs Mates, he also had the report of Ms. Casey dated 11 November 2019, and the mental health care plan dated 13 February 2018, Mr Borenstein was able to confirm that the applicant had acquired a psychological disorder following adverse media exposure.
66.In addition to the written material, Mr Borenstein interviewed the applicant’s wife on 16 April 2021. The interview is extensively outlined in Mr Borenstein’s report and confirms the evidence in her statement, though gives it in greater detail. After reading the report of interview contained in the report, I find that there is nothing that is inconsistent with Mrs Mates’ previous statement.
67.In respect of the civil action, Mrs Mates reported to Mr Borenstein that the applicant relapsed and kept saying that he’ couldn’t go through this again’. The applicant said he knew it was affecting him, but he didn’t know what to do about it, it was like he was back to ‘square one’. He wasn’t sleeping and his mood changed. He kept saying his heart was going fast. He was anxious and he was breathless when he was talking. In addition, the applicant started to vomit again when he heard about the civil action.
68.Mr Borenstein opined that the applicant was suffering a severe chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with features of a major depressive illness.
69.Mr Borenstein opined that in the week prior to the applicant suffering the brain aneurysm and cardiac event, Mr Mates was suffering a recurrence of a severe Adjustment Disorder with Mixed Anxiety and Depressed Mood with traumatic stress features and elements of a major depressive illness. This would have led to physical and psychological changes and it was Mr Bornstein’s opinion that on the balance of probabilities contributed to Mr Mates suffering a life-changing aneurysm and cardiac event.

Professor John Raftos

70.Professor Raftos has prepared a report dated 28 May 2021.[6]
[6] Application page 7,007.
71.Professor Raftos has been provided with the relevant documentation in this case including the statements of Mrs Mates, Chief Inspector Michael Dempsey and Acting Inspector McCaughey.
72.Professor Raftos takes a history that the applicant suffered a recurrence of a severe anxiety after hearing that there was a civil claim being made against the NSW Police Force in relation to the Byron Bay incident.
73.Professor Raftos provides a thorough and interesting discourse as to the aetiology of an aneurysm. He identifies the chronic risk factors for the rupture of an intracranial aneurysm including female gender, increasing age, and hypertension (high blood pressure). Acute triggers for intracranial aneurysm rupture are identified as physical exertion, sexual activity, alcohol use, cigarette smoking and emotional stress. Most of these triggers could cause aneurysm rupture predominantly due to the increasing the blood pressure. Professor Raftos explains that emotional stress causes an increase in systemic blood pressure and for that reason has been implicated as a trigger factor for the rupture of intracranial aneurysms causing subarachnoid haemorrhage.
74.Professor Raftos understands that Mr Borenstein has opined that the applicant had an Adjustment Disorder with Mixed Anxiety and Depressed Mood and features of post-traumatic stress disorder and that there was a severe anxiety recurrence on 22 August 2019. Professor Raftos opined that the severe anxiety associated with post-traumatic stress disorder that arose from the incident in January 2018 was exacerbated when the applicant’s lawyer informed him on or about 22 August 2019 about a civil action associated with the incident and this exacerbation triggered the subarachnoid and intracerebral haemorrhage that occurred on 29 August 2019.
75.Professor Raftos has prepared a second report dated 18 August 2021.[7] Professor Raftos was asked to provide a further report after being provided with the reports of Dr Nagesh dated 8 July 2021 and Dr Casikar dated 23 July 2021.
[7] Late documents page 2.
76.Professor Raftos confirms his previous opinion and relates that there is good evidence in the literature[8] that psychological distress can cause an increase in systemic blood pressure. Similarly, there was good evidence in the literature, that emotional stress is a trigger factor for the rupture of intracranial aneurysms causing subarachnoid haemorrhage.
[8] References which were provided in his earlier report.
77.Professor Raftos explains that even though Mr Mates had visited the gym on a regular basis and regularly performed exercises such as lifting weights, that had the potential to cause a transient increase in the blood pressure. These exercises however had never previously caused his cerebral artery aneurysm to rupture.
78.In Professor Raftos’ opinion it was more likely than not that it was the additional increase in his blood pressure caused by the severe anxiety in the previous week associated with the news of the proposed civil action added to the increased blood pressure associated with lifting weights that he endured without incident for years that caused the aneurysm to rupture.

Dr Casikar

79.Dr Casikar, neurosurgeon, has been retained by the respondent and has prepared multiple reports, his first report being 10 September 2020.[9]
[9] Page 1 of the Reply.
80.Dr Casikar has prepared a report on the basis that the applicant suffered the aneurysm whilst at the gym. That is, whilst doing a gym program there is usually severe stress causing a pre-existing aneurysm to rupture. Dr Casikar explains that the pre-existing aneurysm could be a hereditary condition however the activities at the gym could have been the triggering factor for the rupture of that aneurysm.
81.Dr Casikar states that the incident of 11 January 2018 and the stress arising from it was unlikely to have caused the aneurysmal rupture. Psychological injuries and stress-related factors by themselves do not cause rupture of an aneurysm and therefore the stress-related issues that occurred on 26 March 2018 were not the significant contributing factor to the ruptured aneurysm.
82.In a supplementary report dated 8 October 2020[10] Dr Casikar once again opines that the subarachnoid haemorrhage and aneurysm was due to the natural phenomenon of aneurysm pathology and probably aggravated by the stress at the gym. Dr Casikar once again states that psychological injuries and stress-related factors do not cause an aneurysm bleed.
[10] Page 4 of the Reply.
83.Dr Casikar has prepared a third report dated 23 July 2021.[11] Dr Casikar understood while preparing that report that the applicant was doing arm curling exercises when he collapsed, and this was probably the time when the aneurysm ruptured and was the most likely cause of the applicant’s problem.
[11] Page 6 of the Reply.
84.In relation to the report of Dr Nagesh, psychologist who opined that the applicant suffered from an Adjustment Disorder with depression and anxiety mood, Dr Casikar disagrees that psychological injuries have resulted in an increase in the blood pressure which could have caused a rupture of existing aneurysm. Dr Casikar describes this as a very tenuous argument and is not sure if psychological stress could cause a raise in blood pressure. Dr Casikar accepts that the relationship between stress and raised blood pressure is acceptable however the relationship between stress and aneurysm is difficult to be certain in relation to. Dr Casikar maintains his opinion that the most likely cause of the rupture of the aneurysm was physical exercise.

Dr Nagesh

85.Dr Nagesh, psychiatrist, has prepared a report dated 8 July 2021 at the request of the respondent’s solicitors.[12] Dr Nagesh has been provided with a statement from Mrs Mates dated 24 February 2020 and the history that he includes in his report is entirely consistent with that statement that there was a re-emergence of Mr Mates’ symptoms in August 2019 when he understood that there was a civil claim being pursued.
[12] Page 9 of the Reply.
86.Dr Nagesh notes that he is not an expert in aneurysms however as a psychiatrist, it is his opinion that the alleged psychological injury which included depression, anxiety and some post-traumatic stress symptoms, could have resulted in Mr Mates developing hypertension/ increase in blood pressure which in turn could have caused the rupture of the existing aneurysm.
87.Dr Nagesh confirms that he agrees with Mr Borenstein’s diagnosis which was that the applicant was suffering an Adjustment Disorder with Depressed and Anxious Mood. He further agrees with Mr Borenstein and Dr Raftos that the applicant was suffering from depressive anxiety and post-traumatic stress disorder symptoms from the incident in January 2018 which was further exacerbated when his lawyer informed him about a civil action being taken. This further triggered psychological symptoms.

Lynley Casey

88.Ms Casey, psychologist, saw the applicant for four counselling sessions. The first appointment was 19 February 2018, then 23 May 2018, 28 June 2018, and 24 July 2018 in relation to stress arising from the Byron Bay incident.[13] Ms Casey indicates the applicant was treated for anxiety and depression symptoms in relation to that incident and had ongoing stress.
[13] Application page 6,932.

Goondiwindi Hospital

89.The emergency department notes from Goondiwindi Hospital indicate the following:
“A 50-year-old police officer, with presumed intracranial hemorrhage. Collapsed suddenly at the gym today. Vision from security footage showed that he was on a controlled chest press, lent to the side, vomited, then collapsed.”

SUBMISSIONS AND FINDINGS

The respondent submitted that the applicant has not discharged his onus in establishing the requisite link between the psychological condition, its effects, and the ruptured aneurysm suffered on 29 August 2019.

91.The respondent appears to deny the claim on two fronts. The first being that Professor Raftos does not take in to account the fact that the applicant was performing exercise at the time of the critical event. The second is that the applicant has not established that there was a regression in his psychological condition upon notification of the civil claim (which caused a stress and an increase in cranial pressure).

There is no dispute that the applicant wears the onus of proof in relation to these medical issues.[14]
[14] Chen v State of New South Wales (No. 2) [2016] NSWCA 292.

93.The respondent submits that little weight should be given to the opinion of Dr Raftos. The first reason proffered is that Dr Raftos appears to ignore the contemporaneous association between the ruptured brain aneurysm and the physical exertion the applicant was experiencing at the time. That is, at the time of the ruptured brain aneurysm the applicant was undertaking exercise which would no doubt have caused great stress on the vascular system.
94.I must say that I do not agree that Dr Raftos has ignored the fact that the applicant was engaged in physical exertion. He quite clearly understands the applicant was engaged in an exercise gymnasium and acknowledged that one of the causative factors in this chain could include physical exertion. He observed, in his report of 18 August 2021, gym exercises have the potential to cause a transient increase in blood pressure however these exercises have never previously caused the applicant’s agreeable artery aneurysm to rupture.
95.Professor Raftos’ opinion therefore does consider physical exertion at the gymnasium. His opinion is quite clearly that the critical cumulative increase in intracranial pressure resulting from the previously tolerated exercise with the added effects from the stress-related psychological condition has caused the cerebral artery aneurysm to rupture.
96.The respondent also submits that Dr Raftos relies on a history of increased blood pressure however there is no clinical account of the applicant experiencing hypertension in any of his clinical records.
97.The respondent points out that there is no contemporaneous account of difficulties as a result of a psychological state, or of an acute stress reaction, vomiting or breathlessness. This is ever so in light of the fact that Mrs Mates spoke to a number of treating specialists regarding the significant event and there is no reporting of that claimed symptomatology.
98.The respondent pointed to the report of Dr Gleeson dated 29 August 2019[15] where there is report of communication with Mrs Mates to the following effect;
[15] Application page 74
“collateral from his wife- takes no regular medications, has no known allergies.”
99.Further the respondent refers to the report of Dr Ludvigsen[16] , in the neurology unit of Royal Brisbane women’s Hospital, where there is no account regarding the apparent difficulties occurring from 22 August 2019 despite there being significant contact with Mrs Mates.
[16] Application page 85

In addition, the respondent refers to the Goondiwindi emergency department admission records[17] which do not disclose any difficulties or regression in relation to the applicant’s condition from 22 August 2019 onwards.
[17] Application page 68
The final reference where there is no reporting of a significant regression or psychological problem appears to be in the report of Dr Bell, rehabilitation physician dated 17 January 2020[18]
[18] Application page 88
Given there is no clinical support for these psychological difficulties as suggested by Mrs Mates, the respondent then submits that there is difficulty in supporting the opinion of Professor Raftos and Mr Borenstein whose opinion is based upon the description of Mrs Mates of her husband’s psychological condition and regression following notification of the civil claim.
The reporting of symptomatology in hospital notes, following acute events such as the applicant’s suffered, should be treated with the utmost caution[19]. Busy doctors in emergency may not record reported symptomatology, likewise, is easily understandable, a wife faced with a life-threatening and life altering event may not give a full account of psychological symptomatology at that time.
[19] Mason v Demasi [2009] NSWCA 227
The absence contemporaneous history given to emergency responders and the absence of any history given being recorded in the clinical notes, is not fatal to the applicant’s case in the circumstances of this case.
The respondent does not submit that the opinion of Dr Nagesh should be negated or given less weight. Dr Nagesh has accepted that the applicant was suffering from depressive anxiety and post-traumatic stress disorder symptoms from the incident in January 2018 which was further exacerbated when his lawyer informed him about a civil action being taken.
Given that there is not a great amount of detail as to the applicant’s regression in treating notes the respondent submitted that the allegations of Mrs Mates concerning her husband’s psychological presentation following notification of the civil claim should be treated with the utmost caution.
To my mind the account given by Mrs Mates to Mr Borenstein and what Professor Raftos understood is consistent with the previous statement she has given to an investigator in February 2020 where she observed that her husband experienced a significant regression in his psychological condition after notification of the civil claim.
Mrs Mates evidence is corroborated in terms of the observation of symptomatology by Sergeant McCaughey and Chief Inspector Michael Dempsey before the move to Goondiwindi. Indeed, Chief Inspector Dempsey’s concerns about the applicant were to such an extent that he completed a P902 incident notification form.[20]
[20] Application page 6.
I agree with the applicant’s submission that I should accept Mrs Mates as a reliable and honest witness. I agree that her account of Mr Mates’ response to news of the civil action is plausible and consistent with her description of his response to the events and observation after January 2018.
Mrs Mates was in a unique position to observe her husband and I accept her observations regarding his symptomatology without hesitation. She is also able to provide assistance in understanding Mr Mates’ concerns regarding the civil claim in circumstances where he is unable to provide any assistance.
I agree with the respondent’s submission that there is more detail in the history given to Mr Borenstein by Mrs Mates regarding Mr Mates’ symptomatology in the week before the acute incident. To be clear, I also find it entirely consistent with the previous statement she has given to the investigator in February 2020. Her evidence is accepted by me in relation to both the applicant’s psychological condition following the negative media attention, the LECC hearing and the notification of the civil claim.
The respondent’s submission in relation to the medical theory presented by Dr Casikar, that is that the gym exercise could have been the triggering fact of the rupture, on the basis that the applicant was in the gym exercising at the time of the index event, ignores the legal test that I must apply. That is, that the applicant is seeking to prove that the stress-related intracranial pressure was a “material contribution” to the rupture.
There is no dispute, and it was agreed by Professor Raftos, that gym exercises do have the potential to increase blood pressure. The applicant does not deny this. The opinion of Professor Raftos, is that the critical cumulation increase intracranial pressure resulting from the previously tolerated exercise with the added effect from a stress-related psychological condition. I am persuaded that this indeed occurred to Mr Mates on the index date.
The other difficulty I have with accepting the opinion of Dr Casikar is that he does not appear to consider the aggravating events of notification of the claim or the symptomatology at that time that Mrs Mates describes in her statement. This is despite a general agreement that the applicant’s psychological condition was aggravated by the notification of the claim (if Mrs Mates evidence is accepted, which it is).
The respondent’s own expert, Dr Nagesh, agrees that that the alleged psychological injury which included depression, anxiety, and some post-traumatic stress symptoms, could have resulted in Mr Mates developing hypertension/increase in blood pressure which in turn could have contributed to the rupture of the existing aneurysm.
Dr Nagesh’s opinion is in line with that of Mr Borenstein who opined that in the week prior to the applicant suffering the brain aneurysm and cardiac event, Mr Mates was suffering a recurrence of a severe Adjustment Disorder with Mixed Anxiety and Depressed Mood with traumatic stress features and elements of a major depressive illness.
I therefore find as a matter of fact, after considering Mrs Mates evidence and the considered opinions of both Dr Nagesh and Mr Borenstein that the applicant was suffering from a recurrence of serious psychological condition after notification of the civil claim.
Dr Casikar also appears to have some acceptance in his report dated 8 October 2020 that stress could cause raised intracranial pressure, and this could be one of the reasons for aneurysm rupture however the rupture was mainly related to the gym activities. To my mind Dr Casikar is here accepting that claim that psychological condition could raise intracranial pressure, this is not inconsistent with the applicant’s case.
Whilst Dr Nagesh is quite clearly concerned that he is providing an opinion that is outside his expertise, I accept his evidence that the psychological symptomatology could increase blood pressure or hypertension.
Dr Nagesh’s opinion in relation to this, is consistent with the applicant’s experts and is not at all inconsistent with that of Dr Casikar who does not find that the stress-related psychological condition could cause an increase in blood pressure or hypertension.
I should also comment that I prefer the opinion of Professor Raftos over Dr Casikar. I find that Professor Raftos well-reasoned and persuasive opinion appears to consider the applicant’s deteriorating condition following notification of the claim whereas Dr Casikar does not.
Having considered all the evidence, I am satisfied that the psychological condition arising from both the sequela of the assault in January 2018 and in particular the notification of the civil claim in 2019 caused stress for the applicant, which in turn was a material contribution to the rupture of the aneurysm. I accept that the critical cumulative increase in intracranial pressure resulting from the previously tolerated exercise with the added effects from the stress-related psychological condition caused the cerebral artery aneurysm to rupture.

SUMMARY

The applicant suffered a consequential condition by way of stroke and/or brain aneurysm on 29 August 2019.
The respondent is to pay the applicant weekly compensation in accordance with the application (at the current weekly wage rate of $1,823.81).
The respondent is to pay the applicant’s costs as agreed or assessed. Such costs are certified as complex for both parties and it is determined that a 30% uplift is appropriate in the circumstances.

[2021] NSWPIC 527

17 December 2021