McNicol v TAC
[2012] VCC 326
•28 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02204
| ADAM CARL McNICOL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 13, 14 and 15 March 2012 | |
DATE OF JUDGMENT: | 28 March 2012 | |
CASE MAY BE CITED AS: | McNicol v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 326 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Serious injury – mental or behavioural disturbance or disorder – whether such disorder was caused by the relevant transport accident – aggravation of disorder – whether the aggravation amounted to a severe long-term mental or severe long-term behavioural disturbance or disorder.
LEGISLATION CITED – Transport Accident Act 1986, ss.93(6), 93(17)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249
JUDGMENT – Leave granted to the plaintiff to commence proceedings for damages.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Brown McComish, Solicitors |
| For the Defendant | Mr P Elliott SC with Mr J Batten | Solicitors for the Transport Accident Commission |
HIS HONOUR:
1 In May 2006, Adam McNicol was employed as a security officer. In the course of that employment, he was required to attend at the scene of an accident at Lismore in which a train had collided with a semi-trailer. The accident was a severe one. It appears that the driver of the semi-trailer had been killed instantly. The nature of the collision was such that only a relatively small portion of the remains of the driver’s body had been located and removed from the accident scene. The balance of his remains were apparently still amongst the wreckage. Mr McNicol was required to provide security at the scene, principally to prevent or deter looting of goods and materials by other persons. He did so over two shifts. I shall refer to these shifts as “the Lismore incident”.
2 Mr McNicol alleges that as a consequence of the work performed by him at the accident scene, he has suffered a Post Traumatic Stress Disorder (“PTSD”) and an Adjustment Disorder with Anxiety and Depression. He seeks the leave of the Court to issue a proceeding to recover damages in respect of that injury.
3 The parties were in agreement that, because the injury arose out of a transport accident, his right to bring such a proceeding is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr McNicol must satisfy the Court that his injury is a “serious injury”.[1]
[1]Section 93(6)
4 The term “serious injury” is defined in s.93(17) of the Act, insofar as is relevant to this application, as:
“(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
[Parts (a), (b) and (d) have no relevance to this application].
5 In order to succeed in his application, Mr McNicol must satisfy the Court that the consequences of his injury are serious. In order that the injury be considered to be serious:
(a)the consequences of the injury must be serious to him;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
6 Mr McNicol alleges that the consequences of his injury satisfy that threshold test as being at least very considerable.
7 The defendant does not deny that Mr McNicol’s present condition would, if taken alone, satisfy that test. However, it alleges that his condition relates to an earlier psychological injury and that the degree of aggravation, if any, caused as a result of Mr McNicol’s attendance at the scene of the Lismore accident, is relatively minor and does not satisfy the threshold test.
8 It is common ground between the parties that Mr McNicol had suffered from a psychological injury in 2004. The defendant submits that the degree of aggravation of that condition caused by the attendance at the Lismore accident scene (“the injury”) is, in itself, not sufficient to constitute a serious injury as defined. It is therefore the extent of the injury suffered in the Lismore incident that is in issue in this case.
Background
9 Mr McNicol is aged forty-two years. He was educated at Castlemaine Technical School, leaving without completing Year 10. He has only basic skills in reading and writing. He was married in 1990, a marriage lasting only three years. After separation, he was granted custody of his young daughter. In 1996, he commenced a relationship with his current partner, Stacey Nally, with whom he continues to reside. They have four children.
10 Since leaving school, he has worked in a number of different jobs, including with a smallgoods firm, farm hand, and as a security guard.
11 In mid-2003, he attended a security training course in Warrnambool and commenced employment with Shoretec Security Pty Ltd (“Shoretec”). His duties were varied. On occasions he would be required to perform patrol work, checking on various premises. Sometimes this would involve checking premises when an alarm had been triggered. On other occasions, he was required to perform crowd control work at hotels or nightclubs.
12 In about January 2004, Mr McNicol was called to attend at a Visitor Information Centre in Warrnambool. An alarm had apparently been set off. As he inspected the rear of that building, he was confronted by a number of members of the Gipsy Jokers motorcycle group who, at the time, had set up camp adjacent to the Centre. In that group, consisting of up to 200 people, was a very large man who pointed a sawn-off shot gun at Mr McNicol. Several of the group aggressively confronted him. He feared for his life. Eventually, he was able to convince the group that he meant them no harm and that he was merely there for a security check on the building, and managed to withdraw and leave the scene. He was told shortly afterwards by police that he was lucky not to have been killed.
13 Shortly after that incident (which I shall refer to as “the Gipsy Jokers incident”), he was told that a mistake had been made by his employer and that he had been sent to the wrong address. In fact, he should have been sent to an information centre in another part of Warrnambool.
14 Over the following months, Mr McNicol experienced flashbacks of the night and nightmares. However, he was able to keep working. His employer increased his hours of work to the point where he was working 60 or 70 hours per week. He protested, but was ignored. As time progressed, he became exhausted and ill. Eventually, he could not handle the continued stress of the job, his recurring flashbacks to the Gypsy Jokers incident and the excessive hours that he was working. He resigned within a few months of the Gypsy Jokers incident. He made a claim for WorkCover benefits, which was accepted.
15 After a relatively short period off work, Mr McNicol opened his own business. A friend of his had conducted a business, part of which involved the manufacture and sale of aquariums suitable for homes. The friend no longer had the time to service that side of the business and Mr McNicol purchased it from him. He registered a business name and manufactured, sold and installed aquariums of various sizes to a variety of customers. He enjoyed the work. He was able to devote himself full time to the business. Unfortunately, the business was not profitable enough to adequately support Mr McNicol and his family.
16 In May 2006, the owner of Shoretec telephoned Mr McNicol and asked him whether he would be prepared to return to his former job in the security business. Mr McNicol accepted that offer with some enthusiasm. Initially he agreed to return to the job on a part time basis. He understood he would mainly work as a patrol guard.
17 The night before he was due to recommence work with Shoretec, Mr Gavin, the owner, phoned him and told him that he was required to attend a collision site near Lismore in western Victoria where a semi-trailer had collided with a goods train. He attend at the site, where he was told by others that the driver of the semi-trailer had been so badly injured by the impact that his body had virtually disintegrated. He was warned about the possibility that there were body parts in the area. His duties required him to walk through the wreckage, which creaked and groaned as he climbed through it. There had been a large quantity of wine on the train at the time of the collision. Most of this had been smashed and there was a strong odour of wine through the area. In addition, there was what he describes as an almost impossible task of keeping looters away from the train, especially at night. He spent two nights at the Lismore scene.
18 He experienced regular flashbacks and nightmares concerning the Lismore incident. However, he did not consult a medical practitioner about them for about a year.
19 Nevertheless, he continued in his employment with Shoretec for some considerable time. His duties were much the same as they had been during the earlier period of employment with it. He was, in due course, promoted to patrol operations supervisor. He performed the same duties as previously but had additional duties involving supervision of rosters and of other security personnel. His hours of work increased again.
20 In January 2007, whilst driving to Heywood, he observed a semi-trailer jack-knife and roll a short distance in front of him. He stopped and was one of the first persons on the scene. He spoke with the driver, who was injured, as to whether there had been any other person in the cab with him. He understood the driver to tell him that there had been another person (although later it was established that this was incorrect). Accordingly, he commenced to search the nearby area. As he did so, he had flashbacks of the Lismore accident scene and experienced the stench of the wine at that scene.
21 Following the Heywood accident, he continued working for Shoretec.
22 In March 2007, Mr McNicol made an offer to Mr Gavin to purchase the patrol part of the business of Shoretec. In oral evidence, he said that he had never really intended to buy that part of the business but wanted to see what Mr Gavin thought it was worth. Mr McNicol conceded that he had considered starting a security business on his own. The discussions with regard to the suggested purchase apparently went no further. This offer, genuine or not, and the plan to start his own business are puzzling aspects of the proceeding. Looking at all of the evidence, I have concluded that they were unrealistic ideas which he would not have been capable of carrying out.
23 In early April 2007, Mr McNicol attended a meeting with Mr Gavin and a number of other security guards employed by Shoretec. He proposed that the twelve-hour shifts worked by the guards be reduced to six-hour shifts. Mr Gavin was not in favour of this. There was a difference of opinion. On the following day, Mr McNicol handed in a letter of resignation, stating that his grounds for resigning were a lack of appropriate support from management, a separate issue involving motor vehicle expenses, and what he referred as irreconcilable differences with management. There was no mention of any health issue.
24 On receipt of that letter, Mr Gavin telephoned Mr McNicol and asked him not to be too hasty. Mr Gavin suggested that, as he had holidays due, he should take some time off and see how he felt at the conclusion of holidays. As a consequence of that approach, Mr McNicol arranged to take two weeks of holidays of the four weeks which were owed to him. During that period of holidays, Mr McNicol consulted a medical practitioner in relation to injuries, the subject of this claim.
25 In early May 2007, Mr McNicol first consulted his general practitioner, Dr Manderson. He has seen that doctor and also Dr Robson from the same clinic on numerous occasions since that time. He complained of symptoms of agitation, irritability, inability to relax, poor sleep, and strong feelings of anger on occasions. The history given was that he commenced experiencing these problems after being held at gunpoint in the Gypsy Jokers incident. The history described by Dr Robson[3] was that these symptoms gradually escalated through his work as a security guard, responding to alarm calls and being constantly exposed to potentially life-threatening situations.
[3]PCB 36-37
26 Dr Manderson diagnosed Mr McNicol as suffering from Post-Traumatic Stress Disorder. Initially, it appears that Mr McNicol had difficulty accepting that diagnosis, as he considered that it meant that he was mentally weak. He has gradually come to terms with the fact that that is the condition with which he suffers.
27 Mr McNicol was referred to a psychologist, Dr John Clarke, in June 2007. He saw him on a number of occasions between June and November 2007. Amongst other things, Mr McNicol told Dr Clarke that he had lost approximately 30 kilograms in weight in the six months prior to mid-2007.
28 Dr Clarke conducted a number of psychological tests on Mr McNicol whose responses were described as consistent. He was suffering from Anxiety which manifested itself in physical forms of tension, such as shortness of breath, trembling and chest pains. Tests confirmed he suffered from Depression. At that time, he reported thoughts of worthlessness, hopelessness and personal failure, and experienced difficulties in concentration and making decisions. He reported sadness, a loss of interest in normal activities and a loss of pleasure in things that he previously enjoyed. He had disturbances in sleep pattern and a decrease in the level of sexual functioning.
29 Dr Robson referred Mr McNicol to a treating psychiatrist, Dr Graham Ridley, in April 2008 and to Mr Bill Radley, a psychologist, in November 2008.
30 The history given to Dr Ridley was described as complex and centred largely on the two separate incidents – the Gypsy Jokers incident and the Lismore incident. Dr Ridley prescribed the anti-depressant medication, Fluvoxamine, in a relatively high dose. He also prescribed Diazepam, a sedative. Attempts to discontinue the Fluvoxamine led to Mr McNicol becoming significantly more angry, more highly aroused, more restless and with increasing strain on his marriage. A trial of an alternative anti-depressant, Duloxetine, resulted in an adverse reaction and thereafter, he was returned to Fluvoxamine. He remained on this medication for a considerable time. In 2011, Mr McNicol determined to slowly discontinue Fluvoxamine. He has been prescribed the anti-psychotic medication, Quetiapine, although it appears that he has not taken this.
31 In about mid-2011, Mr McNicol relocated to Millicent in rural South Australia. He is no longer taking medication. Mr McNicol has continued to see Dr Ridley.
32 Mr Radley, psychologist, saw Mr McNicol on referral from Dr Ridley in November 2008. His treatment consisted of a number of sessions of psychological testing and treatment.
Diagnoses of Injury
33 Counsel for the parties were in agreement that the evidence indicated that Mr McNicol suffered from a condition of Post-Traumatic Stress Disorder and from an Adjustment Disorder with Anxiety and Depression.
Mr McNicol’s Condition prior to the Lismore Incident
34 The issue in this application concerns the extent of consequences of the injury suffered by Mr McNicol as a consequence of his attendance at work at the Lismore incident, as opposed to those relating to the Gypsy Jokers incident or any that may have resulted from his witnessing the truck roll over in January 2007, or any injury or consequences of injury suffered by him as a consequence of general work-related stresses caused by the nature of his duties or the hours of work performed by him.
35 I accept that Mr McNicol was subjected to a terrifying experience when confronted by Gypsy Jokers in January 2004. I accept that he genuinely feared for his life on that occasion and that he has had many flashbacks and nightmares concerning that incident since. However, it is important that he was able to continue working after the Gypsy Jokers incident and even after resigning from that employment the first time, was able to function normally. He purchased and ran his own business for some considerable period of time. That business – manufacturing and installing aquariums – involved him frequently dealing with members of the public who became or might have become customers. The business involved him not only performing manufacturing work, but visiting people’s homes and dealing with them in relation to design and installation issues. He managed to perform these tasks and enjoyed his work. He had no reason to attend any medical practitioner.
36 The failure of the aquarium business appears not to be related to any illness or mental condition. Despite enjoying the work and performing it satisfactorily, there was just not enough business for him to be able to adequately support his partner and family. It was for that reason that he returned to the security work with Shoretec in May 2006.
37 It was on the very first night of his resumed employment with Shoretec that the Lismore incident occurred.
38 I accept that the Gypsy Jokers incident may, notwithstanding a lack of need for medical treatment, have rendered Mr McNicol more vulnerable to further psychological injury or symptoms than would have been the case in the event that it had not occurred. However, that fact is not of any assistance to the defendant in this application. A defendant must take a plaintiff as it finds him.
39 I am required to consider the consequences of the Lismore incident. In an attempt to do so, I must disregard the consequences of other earlier and later events. I am required to make a comparison between Mr McNicol’s condition prior to the Lismore accident with his condition that has arisen as a consequence of it.[4]
[4]Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249
40 Senior Counsel for the defendant conceded that Mr McNicol’s current psychological and/or psychiatric condition was such that it would satisfy part (c) of the definition of “serious injury” in s.134AB(37) of the Act. The issue, therefore, is not Mr McNicol’s current condition, but the extent of the consequences caused in, or as a result of, the Lismore incident.
41 In assessing those consequences, I have taken into account the following matters which I consider are important:
(a) The Gypsy Jokers incident lasted approximately ten minutes;
(b) At all material times, between the Gypsy Jokers incident and the Lismore incident, Mr McNicol was capable of working either in the security industry or in his own business constructing, marketing and installation of aquariums;
(c) At no time between the Gypsy Jokers incident and the Lismore incident did he consult any medical practitioner in relation to his condition;
(d) Mr McNicol was justifiably angry when he learned of the mistakes made in sending him to the wrong visitor centre. He felt very angry that someone had placed him in that situation and that they were mocking him for the fear and trauma reactions that he had suffered. He later started dwelling over what could have gone wrong, particularly with having a shotgun pointed at him;
(e) The history given to Dr Michael Epstein in September 2009 was that after the Gypsy Jokers incident, he began finding his workload too much. He stopped enjoying the work and was becoming more aggressive and less tolerant. He left the job around the middle of 2004. He thought that he had been exposed to a “huge amount of stress” during that period of employment;[5]
[5]PCB 42
(f) After taking on the aquarium business, he felt much safer working at home and was less concerned about his safety and his panic attacks gradually settled;[6]
[6]PCB 42
(g) Mr McNicol, in oral evidence, deposed that he did not suffer from flashbacks or nightmares concerning the Gypsy Jokers incident after the Lismore incident and that his flashbacks and nightmares thereafter were limited to the later incident. I consider that he is mistaken about this. I consider that the history provided to Dr Epstein is likely to be correct;[7]
[7]PCB 42
(h) In an affidavit in March 2010, Mr McNicol’s partner, Stacey Nally, stated that, after the Gypsy Jokers incident, she witnessed a change in Mr McNicol’s attitude towards his work and life in general. She thought he became increasingly concerned for her safety and that of the children. He became unwilling to answer telephone calls and became anxious when people came to the door. He was no longer as happy-go-lucky as he had been previously and spending quality time with his family seemed to become more difficult for him. He frequently relived the Gypsy Jokers incident and would discuss it, particularly after jokes had been made about it at work.[8] The reference by her to jokes being made about the incident at work indicates to me that she is talking about a period within a few months of the incident and before he initially resigned from Shoretec. Similarly, her comments that his life revolved around Shoretec and the relationship with his family and friends began to suffer, also must refer to a time prior to that first resignation and well before he commenced his aquarium business;
(i) Mr McNicol was capable of full time work prior to the Lismore incident.
[8]PCB 30
42 I conclude that following the Gypsy Jokers incident in early 2004, Mr McNicol did substantially recover. He was able, over the following period of approximately three years, to work on a full-time basis, enjoying his business, and encountering no problems dealing with members of the public. I think it is likely that he continued to have some after effects of the earlier incident, including some flashbacks and nightmares. It does not appear that these were intense or overwhelming, or that they interfered to any significant extent with his lifestyle or occupation. Nevertheless, it is likely that he remained vulnerable to further psychological injury.
Consequences of Injuries Suffered in the Lismore Incident
43 Mr McNicol spent two nights at the Lismore site. He was given no prior warning before his attendance as to the scene that he was to encounter. Following his attendance, he was offered no counselling, debriefing or time off work. He was instructed to return to work and did so.
44 In his affidavit, he swears that as time went by, it became obvious to him that he was not well enough to take on extra responsibilities.[9] Nevertheless, his patrol operations supervisor kept allocating additional tasks to him which he found difficult, especially after working a twelve-hour shift. Nevertheless, he was promoted to supervisor, which involved him performing duties such as preparation and supervision of rosters of staff and other administrative duties.
[9]PCB 15
45 Mr McNicol’s evidence was that after the Lismore incident, his condition worsened. He swore that he was and still is troubled every day by flashbacks and nightmares concerning the Lismore incident. The incident involved a great quantity of wine bottles being broken. There was an odour of wine throughout the site. He describes the odour as a stench which he experiences often. In the incident in January 2007 when he observed the truck jack-knife and roll, he says that when attempting to search for a possible survivor, he experienced the same stench of wine that he experienced in the Lismore incident. He says that he has never been able to get the thought of the train wreck, the smell and the knowledge of missing body parts out of his mind.[10] He states that when he walked down the side of the road, at the truck accident in early 2007, the flashback that he experienced was that of the Lismore train crash. He was adamant that he gave the same history to Dr van der Linden, although it is not recorded in the doctor’s report.
[10]PCB 24
46 He stated that in the period following the Heywood truck accident, what he remembered was the Lismore incident and clamouring through the truck and train wreckage looking for body parts and the overwhelming smell of the hundreds of gallons of red wine which had been spilt.[11]
[11]PCB 24
47 Mr McNicol states that of the Gypsy Jokers incident, the Lismore incident and the truck accident, the most recurring memory or flashback is of the Lismore incident. He has not slept through the night since the Lismore incident. Often he wakes at 2.00 am or 3.00 am and does not sleep for the rest of the night.
48 In about mid-2008, Mr McNicol and his family moved to a small farm in Woolsthorpe, about 50 kilometres north of Warrnambool. He avoided leaving the property if possible. He was very apprehensive when strangers came to the house and was having to check and re-check to make sure doors and windows were locked. He worried about his own safety and that of his family. He avoided going to Warrnambool, a modest sized regional town. When he did, he only went with his partner.[12]
[12]PCB 46
49 He now lives in Millicent, a relatively small town in south-eastern South Australia. Life is undoubtedly quieter in such a place. He and his partner do not go out to the cinema, the hotel or to any other social functions in town. This is because he prefers his own company. He feels useless, helpless and worthless. He is troubled every day by flashbacks to the Lismore incident. He has not attended at Lismore since the incident in 2006.
50 By late 2008, he had been avoiding seeing Dr Ridley, his treating psychiatrist. He thought that he established a comfortable routine at home and was worried about disturbing this.[13]
[13]PCB 46
51 His memory has deteriorated. He startles easily. He is on edge. He cannot concentrate long enough to read or engage in social conversation for extended periods of time.[14]
[14]PCB 19-20
52 This is a case where there is no evidence from any doctor who attended upon Mr McNicol before and after the Lismore incident. All doctors whose reports were in evidence had first consulted Mr McNicol one or more years after the Lismore incident. In saying that, I do not mean to be critical of Mr McNicol. The fact is, he did not attend doctors in the period between the Gypsy Jokers incident and the Lismore incident. Further, he did not appreciate that there was any need to consult a doctor for about a year after the Lismore incident. This is not a case involving a physical injury involving some physical pain or symptoms. This is a much more complex and imprecise injury. I do not doubt that it may take a person suffering from Post-Traumatic Stress Disorder some time before the deterioration in his condition leads him to consult a doctor. It appears clear that, from the time he did seek medical treatment, doctors, psychologists and psychiatrists have been of the opinion that he suffers from a severe psychological disorder.
53 When considering the degree or extent of aggravation of his condition after the Lismore incident, I place considerable importance on the fact that since that incident, his ability to socialise with others has been very significantly reduced. An example appears in the report of Mr Epstein of September 2009. Mr McNicol described to him that his lifestyle was somewhat reclusive and that if he saw someone he knew in the street, he felt anxious and agitated for the remainder of the day.[15] This can be sharply contrasted with the ability to socialise that he possessed before the Lismore incident in the course of his operation of the aquarium business where he was regularly required to deal with clients, provide quotes for work and attend at the homes of clients to install the aquariums constructed by him.
[15]PCB 45
54 His diagnosis of Post-Traumatic Stress Disorder has prevented him from even considering returning to work as a security guard, as, with that condition, he would not be granted a security licence.
55 Mr McNicol reported sleeping problems to Dr Clarke in June 2008, not getting to sleep before 3.00 am and then only for a few hours per night. He was more aggressive at home with his partner and children. He had become increasingly irritated with a neighbour.
56 Dr Clarke considered that it was possible that he may not have experienced psychiatric symptoms to the truck rollover in 2007, had he not experienced prolonged exposure to the Lismore incident.[16]
[16]PCB 73
57 Dr Epstein considered that the two major incidents were the Gypsy Jokers incident and Lismore incident. Both incidents, he thought, were associated with significant levels of distress and Dr Epstein estimated that the two incidents described had contributed equally to his current condition. In addition, Dr Epstein considered that the work overload over the last eight or nine months of his employment with Shoretec (that is, from about October 2006 to May 2007) had also contributed. Dr Epstein apportioned the Gypsy Jokers incident at 80 per cent contribution, the Lismore incident at 80 per contribution and the work overload at 20 per cent.[17] Dr Epstein did not attach any particular contribution percentage to the Heywood truck incident in January 2007, on the basis that Mr McNicol had been adamant that that accident had brought back memories of the Lismore incident. Mr McNicol had also been emphatic that nightmares, flashbacks and recurrent intrusive thoughts related to the Lismore incident and Dr Epstein maintained that it was the major factor for him.
[17]PCB 50, 59
58 Dr Ridley expressed the view that Mr McNicol had experienced an intensification of the severity of symptoms after the Lismore incident.[18] He had become increasingly and persistently highly anxious, intensely aroused and avoidant of others, easily prone to anger and aggression towards his wife and children and increasingly miserable in mood. His sleep had become increasingly disturbed and he experienced frequent intrusive flashbacks regarding both of the Gypsy Jokers incident and Lismore incident. He had regular nightmares keeping him from sleep. He had become increasingly avoidant to the point where he was more or less housebound and felt increasingly trapped in symptom of support that he did not understand.[19]
[18]PCB 62
[19]PCB 62
59 When Dr Ridley saw Mr McNicol in October 2008, he was accompanied by Ms Nally, who advised Dr Ridley that she was able to substantiate that Mr McNicol had become increasingly angry and irritable with her and the children and described him being constantly restless in his sleep, which was disturbed by nightmares on a regular basis. She told him that he had become a completely different person since the second incident and that this had placed their relationship under a huge amount of strain.[20]
[20]PCB 63
60 Mr Radley, in November 2009, was of the view that the two incidents in which Mr McNicol was involved whilst employed by Shoretec (the Gypsy Jokers incident and Lismore incident) would certainly seem to be sufficient to cause a significant psychological trauma reaction for the average person. He considered that Mr McNicol’s psychological trauma reactions after the Gypsy Jokers incident were further triggered by the Lismore incident.[21] Mr Radley made no attempt in his reports to apportion the level of contribution of any of the incidents.
[21]PCB 89
61 Whilst it is the case that Mr McNicol was able to continue working with Shoretec for some twelve months following the Lismore incident, no medical practitioner proffered an opinion that that lapse in time indicated that the Lismore incident was not a significant contributing factor to his current symptoms. I note that Dr van der Linden proffered the view in August 2007 that people who suffer from Post Traumatic Stress Disorder may present with significant symptoms a considerable period following their original exposure.
62 Similarly, whilst the Gypsy Jokers incident was clearly one that Mr McNicol perceived as life threatening at the time, no medical practitioner proffered the opinion that the circumstances of the Lismore incident would not have been causative of aggravation of his Post Traumatic Stress Disorder. Whilst it appears to be the case that Mr McNicol was severely stressed by the thought of moving through the wreckage at Lismore for two consecutive shifts, he did not advise any medical practitioner that he feared for his life in doing so. Nevertheless, I accept that medical practitioners who have examined him, are of the view that the Lismore incident was a contributing factor to his Post Traumatic Stress Disorder.
63 Dr van der Linden was of the view that the Gypsy Jokers incident was the most severe traumatic event in the history presented by Mr McNicol. In any event, he considered that Mr McNicol’s Post-Traumatic Stress Disorder with Anxious Mood had been significantly contributed to by his employment with Shoretec.[22] He considered that his Post-Traumatic Stress Disorder was wholly work-related.[23]
[22]DCB 8
[23]DCB 12
64 The history given by Mr McNicol to Dr van der Linden in December 2011 was that he continued to have regular nightmares, approximately two to four times per week, and that they were “all linked to Lismore”. Even those concerning the motorbike gang all “ended up in Lismore”.
65 Dr van der Linden considered that Mr McNicol had suffered from Post-Traumatic Stress Disorder since the Gypsy Jokers incident. He considered that the Lismore incident had directly contributed to a worsening of his symptoms. Further, he thought that the incident in which the truck rolled had led to a further worsening of symptoms.[24] Dr van der Linden did not consider that the general adverse working conditions in his employment with Shoretec had contributed to his Post-Traumatic Stress Disorder.[25] Dr van der Linden was of the view that the Lismore incident had contributed to Mr McNicol ongoing inability to work following his ceasing work in May 2007.[26]
[24]DCB 16
[25]DCB 16
[26]DCB 16
66 In the absence of medical evidence from practitioners who had seen Mr McNicol both before and after the Lismore incident, it follows that medical witnesses and the Court are largely reliant on the histories provided by Mr McNicol and Ms Nally.
67 I had the opportunity of seeing Mr McNicol give oral evidence during which he was extensively cross-examined. I formed the view that he was a seriously distressed and troubled man. I consider that it was a very stressful experience for him to be in Court. I consider that there was no attempt on his part to mislead me or to exaggerate his symptoms. I consider that he was an honest witness, doing the best that he could to present his evidence clearly. I take into account that his injuries are not those of a physical nature, but those of a very significant psychological nature. I accept that the consequences of the Lismore incident have been very severe for him.
68 There is no suggestion in any of the medical evidence that his condition is likely to improve in the future. I consider that it is long term, in the sense that it is not likely to improve in the foreseeable future.
69 I accept that his condition renders him incapable of employment and has had severe effects on his social and family life.
70 Taking all the evidence into account, I am satisfied that the injuries incurred in the Lismore incident are both severe and long term. Accordingly, I am satisfied that he has suffered a “serious injury” as defined in part (c) of the definition of that term in s.93(17) of the Act.
Conclusion
71 For the reasons expressed above, I am satisfied that Mr McNicol has suffered a “serious injury” as defined in the Act. Accordingly, leave will be granted to him to commence proceedings for damages in respect of injuries suffered by him in or about May 2006 in the course of his employment with Shoretec Security Pty Ltd.
72 I shall hear the parties in respect of costs.
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