McOrist v Transport Accident Commission
[2019] VCC 1341
•28 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03950
| DAVID JOHN McORIST | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2019 | |
DATE OF JUDGMENT: | 28 August 2019 | |
CASE MAY BE CITED AS: | McOrist v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1341 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (c) of the definition of “serious injury” – mental or behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Transport Accident Commission v Katanas [2017] HCA 32; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Mr P Haddad | Shine Lawyers |
| For the Defendant | Mr A D Clements QC with Ms A Bannon | Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident, involving his step daughter, that occurred on 9 October 2009 (“the transport accident”).
2 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 Reliance was placed by the plaintiff upon paragraph (c) of the definition of “serious injury” in s93(17) of the Act. The plaintiff suffers psychological conditions variously described as Persistent Adjustment Disorder with Mixed Anxiety and Depressed Mood and/or Post-Traumatic Stress Disorder, Anxiety and Depression.
4 In assessing a mental or behavioural disturbance or disorder under s93(17)(c), the definition requires that the condition be “severe”. This has been held to be more significant than the threshold to satisfy the test under s93(17)(a).[1] The consequences arising from the transport accident must be more than very considerable when a comparison is made with other cases in the range of possible impairments.
[1]Mobilio v Balliotis & Ors [1998] 3 VR 833
5 The plaintiff swore two affidavits, dated 12 September 2011 and 7 February 2019, and was cross-examined. The plaintiff also relied on an affidavit sworn by his partner, Christine Latimer (“his partner”), dated 20 May 2019.
6 I have read all the tendered documents, including medical reports, together with the transcript of the proceedings.
7 The evidence disclosed the plaintiff’s history of psychological/psychiatric issues before the transport accident.
8 In Petkovski v Galletti,[2] the Full Court accepted the proposition that –
[2][1994] 1 VR 436 at 444
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
9 It is thus necessary to consider what the evidence disclosed as to the condition of the plaintiff before the transport accident, and determine whether any additional psychological/psychiatric issues resulting from the transport accident are severe and long term.
10 Given the state of the medical evidence, the plaintiff conceded that the application related to aggravation of the plaintiff’s psychiatric condition.[3] The plaintiff must establish that the aggravation is severe.
[3]Transcript (“T”) 61-62
11 Further, it is necessary to consider whether the transport accident is primarily responsible for his current state, given the emergence of some symptoms with other events in his life, not related to the transport accident.
Brief background to the transport accident
12 The plaintiff is currently aged sixty years, and has been in a relationship with his partner for the past twenty-three years.
13 On 9 October 2009, the plaintiff received a telephone call notifying him that his stepdaughter, Nicole, had been involved in the transport accident. The plaintiff was at this time living with his partner, Nicole’s mother. When the plaintiff first saw Nicole she was in intensive care. He was extremely distressed.
14 Nicole remained in intensive care for a period of about one month and then was an inpatient until March 2010. She then went to a rehabilitation unit and in mid-2013, returned to live with the plaintiff and his partner.
15 On 30 November 2015, Nicole suffered an epileptic seizure and died on 2 December 2015, more than six years after the transport accident.
16 Since the time of the transport accident, the plaintiff and his partner have cared for Nicole’s autistic son, Blake.
17 The plaintiff’s first affidavit was sworn prior to Nicole living at home with him and her death. The plaintiff’s second affidavit was sworn in 2016, after her death and seven years after the transport accident.
The Plaintiff’s evidence – pre-transport accident condition
18 The plaintiff, in his affidavit material, deposed to events or personal issues prior to the transport accident that impacted on his psychological condition, namely:
· Problems with alcoholism and the treatment that he received, including consulting a psychiatrist in Melbourne in 1992, and voluntary admission to a psychiatric ward at St Vincent’s Hospital, at or around that time, for a period of about four weeks. He became sober in approximately 1993 after attending Alcoholics Anonymous (“AA”).
· Two of the plaintiff’s stepdaughters (his partner’s daughters) were fatally injured in a motor vehicle accident on New Years’ Eve in 1996-1997.
· The plaintiff’s stepson (his partner’s son) was involved in another motor vehicle accident whereby he was seriously injured, and the driver suffered fatal injuries in early 2007.
The Plaintiff’s evidence – post-accident, prior to Nicole’s death
19 Since the transport accident, but prior to Nicole’s death, the plaintiff:
· has been the primary care giver, with his partner, of Blake. He has attended to all of his needs, for example feeding, bathing and clothing him when he was very young up until caring for him as he has developed and grown up, to date.
· had an initial period off work after the transport accident, then returned to his job as a technical specialist in the IT industry. He was promoted to a product manager, which he commenced in August 2010. He struggled with the new job and found it highly pressured as his mind was preoccupied with Nicole’s condition.[4]
[4]First Affidavit at paragraph [7]
· was diagnosed as having suffered traumatic stress and ceased work in October-November 2010. He commenced seeing a psychologist, Nathan Kotler, on 4 November 2010, and continued to see him regularly until March 2014.
· has not been able to return to work and is currently unemployed.
20 On 8 December 2010, the plaintiff was involved in a motor vehicle accident when his car was hit in the rear by a truck (“the 2010 accident”). He suffered a whiplash injury to his neck and lower back, along with some shoulder pain. The 2010 accident added to his psychological injury – he started to get panic attacks and suffered from considerable anxiety. The panic attacks were characterised by shortness of breath and vomiting. He generally felt lethargic, disinterested, and experienced difficulties with sleep.[5]
[5]First Affidavit at paragraph [9]
21 His psychiatric injury was further heightened by other stressors that he experienced during 2010 including his father's diagnoses of cancer, his mother being hospitalised, having suffered a nervous breakdown, and his partner’s mother being diagnosed with legionnaire's disease.[6]
[6]First Affidavit at paragraphs [10] and [11]
22 However, by mid-2015, the plaintiff described his life as having improved and having purpose. He was volunteering at AA three to four times a week and conducting weekly counselling sessions at a private hospital as part of that program. He was not receiving any treatment or medication and had ceased seeing his psychologist. Additionally, Blake was progressing well at school. The plaintiff viewed that there was a semblance of normality and consistency about his life at this time.[7]
[7]Second Affidavit at paragraph [6]
23 As at September 2011, the plaintiff deposed that he was:
“Trying to keep a positive outlook on life, however it is hard to do so given the motor vehicle trauma that has plagued myself and my family.”
The Plaintiff’s evidence – post- transport accident, post Nicole’s death
24 Nicole’s death in December 2015 was unexpected and came as a shock to the plaintiff and his family. He re-commenced having treatment in April 2016, seeing his psychologist once per fortnight, which continued until that psychologist retired. He then engaged another psychologist, Jenny Storey, who he continues to consult.
25 Since Nicole’s death, the plaintiff deposed that he:
· suffers from major elevated stress levels that fluctuate in intensity.
· has encountered difficulties looking after Blake and the constant reminder that Blake does not have a mother or parent. Part of his stress relates to concerns about Blake’s future.
· has lost motivation to both engage in work-related drug and alcohol counselling (having completed a Certificate IV in this field in 2013-2014) and to participate in physical activities.
· has decreased the amount of voluntary work he undertakes with AA.
· his sleep is poor and his elevated anxiety and stress does not allow him to function properly, with his thought and concentration diminished and his mind racing.
· has not returned to any form of employment since late 2010 other than voluntary work.
· has expressed a motivation to work but feels precluded from doing so, given his psychological condition.
Cross-examination of the Plaintiff
26 The plaintiff was cross-examined about:
·his history of treatment in relation to alcoholism and use of anti-depressants in the early 1990s.
·entries in his general practitioner’s medical notes regarding complaints of depression and tiredness prior to the transport accident.
·reference in his general practitioner’s medical notes about him attributing his anxiety and panic attacks to work stress.[8]
[8]DCB 55 – entries dated 8 November 2010 and 22 November 2010
·his work history post the transport accident, circumstances of his promotion and ability to cope with that job.
·timing of the onset of panic attacks as contained in his affidavit after the December 2010 accident.
·his own circumstances in 2010 and events that caused him anxiety/panic attacks.
·his attempts to go back to his “old” job, and his participation in training for conducting drug and alcohol rehabilitation.
·factors that currently prevented him from undergoing full-time work and his current level of treatment.
Other affidavit material
27 I received an affidavit from the plaintiff’s partner, Ms Christine Latimer, dated 20 May 2019. She was not required to give evidence. She deposed as to the history of her relationship with the plaintiff, and the effect on him of both the transport accident and Nicole’s death years later.
28 As to the situation at home in late 2010, she deposed that she herself immediately ceased work after the transport accident. During that time, the plaintiff became overwhelmed and could not cope with working full time given the following:
· the extent of Nicole’s injuries and the care she required;
· her own reaction to the transport accident and near death of another child via a motor vehicle accident; and
· them taking on the responsibility of Blake’s care.
29 In the period following Nicole’s death, she deposed that the plaintiff:
·regressed and became more withdrawn
·gained weight
·had a reduced level of involvement with AA
·had less interaction with others socially – his mood was down and he is short tempered
·had difficulties with sleep.
30 That overall, the plaintiff’s involvement with the community had diminished substantially, mainly because of his decreased interest and motivation.
The Plaintiff treaters
General Practitioner, Dr Judith Carmen
31 The plaintiff saw his general practitioner, Dr Judith Carmen, on a number of occasions both before and after the transport accident. Portions of the plaintiff’s medical notes or file from Dr Carmen were tendered by the defendant,[9] as was a report dated 7 March 2011.[10]
[9]DCB 43-59
[10]DCB 3
32 Dr Carmen noted the following attendances regarding the plaintiff before the transport accident:
· On 27 March, 2008:
“History:
Tiredness, last couple of weeks, still has despite resting over Easter, is a bit depressed but thinks it is because he is tired. Aching shoulders.”[11]
[11]DCB 63
·On 19 August, 2009:
History:
Partner's grandson living with them
Tired, working in rehab
Feels tired
… .”[12]
[12]DCB 61
33 After the transport accident, the plaintiff consulted Dr Carmen, who noted:
·On 12 November, 2009:
“History:
Step daughter in coma after MCA, he is the care giver with his wife for the 2 year old. Now accepts he needs … [dietician], coping with stress, … [lot of] support, AA … [people] etc.”
34 Other relevant notes from consultations include on:
· 20 January, 2010 – “stress … Is stressed”
· 27 January, 2010 – Discussion re depression and dealing with grief
· 14 April, 2010 – “stress, busy”
· 26 May, 2010 – reason for visit noted as Depression and Mental Health Care Plan[13]
[13]DCB 51
· 27 October 2010 – “Lots of pressure, work promotion but at a price of pressure etc. Talk re counselling”
· 8 November 2010:
“Has seen Nathan Kottler (sic), promising start.
…
Discussed with me the potential to call this anxiety, panic attacks, [nausea] as a result of Workplace stress. He has felt unsupported with poor management and isolated, I have stated to him that I can write a certificate for leave due to Workplace stress for a month or so but … when med reports are required I would be considering that the anxiety has as a major component the stressors in his private life.
However, encouraged him to get the counselling, take time off, exercise etc and we will review regularly.
To consider medication but he is reluctant.”[14]
[14]DCB 55
35 In her report dated 7 March 2011, Dr Carmen noted:
“I have been seeing him [the plaintiff] regularly during the last 18 months since his wife’s daughter was involved in a serious MCA resulting in serious permanent injuries, requiring his involvement in her ongoing rehabilitatory care and the added responsibility for helping care for her (the daughter’s) toddler son.
His stress level at the time of this particular MCA … [the 2010 accident] was already high and I had initiated counselling for all of the above issues … .[15]
[15]DCB 3
[As to] pre-existing injuries:
… his known and accepted stress, anxiety and depression are impeding his recovery.
In November 2010, it reached such a crisis point that I placed him on stress leave secondary to his overwhelming anxiety and depression around the home situation and at this stage he began counselling with Nathan Kotler. … .”[16]
[16]DCB 4
The Plaintiff’s treaters
Psychologist, Mr Nathan Kotler
36 Mr Nathan Kotler, psychologist, saw the plaintiff between November 2010 and October 2016 on 95 occasions. Between 4 November 2010 and 26 March 2014, consultations typically occurred on a weekly basis. The plaintiff resumed seeing Mr Kotler in April 2016 on a monthly basis until he retired. Mr Kotler provided a report dated 7 November 2016.[17]
[17]PCB 27-28
37 Mr Kotler noted the plaintiff was referred to him by his general practitioner because of a “breakdown” following:
“a. the motor vehicle accident (MVA) in 2009 that left his step-daughter with ‘profound injuries, leaving David and his partner to care for her two and a half year old son Blake who has autism’, and
b. ‘many other compounding factors ... it has all started unravelling recently when compounded by the stress of a promotion at work and all the ensuing responsibility that goes with that’. … .”
38 Mr Kotler noted at the plaintiff’s initial session that he was informed by him that he had previously coped with stress or pressure by avoidance. Further, the plaintiff revealed a history of alcohol abuse but indicated that he had overcome his problems in that respect.
39 Mr Kotler noted that after the transport accident, the plaintiff had many issues to deal with including sadness, loss and grief. The plaintiff and his partner had increased responsibility for Blake, and their own personal future plans needed to change. The plaintiff also had to deal with the realisation that his partner had lost another child as a result of a car accident. He avoided these issues by working hard and reducing his involvement in AA. As a consequence of these matters, the plaintiff’s “stress and anxiety levels were rising”.[18]
[18]PCB 28
40 Mr Kotler opined that the plaintiff, using the K10 measure of psychological distress over different periods between 2011 and 2016, had features indicative of some level of mental disorder. He noted that the relevant criteria are:
“1. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).
2. These symptoms or behaviours are clinically significant, as evidenced by one or both of the following:
· Marked distress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and the cultural factors that might influence symptom severity and presentation.
· Significant impairment in social, occupational, other important areas of functioning.
3. The stress-related disturbance does not meet the criteria for another mental disorder and is not merely an exacerbation of a pre-existing mental disorder.
4. The symptoms do not represent normal bereavement.
5. Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.
It is my opinion that David satisfies each of these criteria. The identifiable stressors (see 1 above) were:
· The initial car accident that incapacitated David’s stepdaughter,
· The resultant impact on David’s life and the lives of those he loves,
· The sudden death of his stepdaughter,
· The resultant impact on David’s life and the lives of those he loves.
Concerning Criteria 5, the consequences of the initial stressor have not terminated. David continues to have a strong reaction to any sudden event leaving him feeling a loss of control. He also continues to have difficulties adjusting to change.”[19]
[19]PCB 31 and 32
41 Having considered that relevant criteria,[20] he opined that the plaintiff had been suffering Persistent Adjustment Disorder with Mixed Anxiety and Depressed Mood, with identifiable stressors being the transport accident and its consequences, including the death of Nicole.[21]
[20]PCB 31
[21]PCB 31-32
Psychologist, Ms Jenny Storey
42 Ms Jenny Storey has been the plaintiff’s treating psychologist since October 2017. She sees the plaintiff on a monthly basis and provided reports dated 15 January 2018 and 6 May 2019.[22] As at the date of her second report, she had seen the plaintiff on sixteen occasions.
[22]PCB 33 and 36
43 The focus of her consultations with the plaintiff has been on the anxiety and depression he has suffered since the transport accident and after Nicole’s death. She noted:
“… Mr McOrist has intermittently suffered with acute anxiety episodes and bouts of clinical depression since his initial presentation. At his best, Mr McOrist is free from acute anxiety for two week stretches, with triggers including anniversaries of trauma … as well as seeing psychiatrists and lawyers. … .”[23]
[23]PCB 36
44 As to the plaintiff’s capacity for employment, Ms Storey attributes his anxiety, depression and his role as carer as preventing him from working outside the home in his chosen profession. Ms Storey however recognises the positive impact on his psychological wellbeing in participating in other activities.
45 She notes the plaintiff’s:
“… anxiety and depression have exercised, and continue to exercise, pervasive negative effects upon interpersonal relationships. … .”[24]
[24]PCB 38
The Plaintiff’s medico-legal evidence
Psychiatrist, Dr Norman Lewis
46 The plaintiff saw Dr Norman Lewis, psychiatrist, in respect of an assessment in relation to the December 2010 accident, and I was provided with a number of reports.[25] The material in these reports is of limited assistance given that they relate to a period of time years before Nicole’s death. I note however that on consideration of the plaintiff’s history, Dr Lewis diagnosed mild to moderate depression with a grief reaction.[26]
[25]PCB 39-57
[26]PCB 51
Psychiatrist, Mr David Weissman
47 Dr David Weissman, psychiatrist, saw the plaintiff on 25 March 2019 and provided a report of the same date, wherein he noted that this was obviously a very complex case.[27]
[27]PCB 58
48 In terms of history, the plaintiff told Dr Weissman –
· After the transport accident, he threw himself into his work, but that around October 2010, he had a “breakdown” and stopped working. He was unable to work and unable to tolerate any pressure or stress – he was very anxious and depressed;
· He commenced seeing Mr Kotler and continued to do so for four to five years, though less frequently as time progressed. After Nicole’s death, Mr Kotler retired and he engaged another psychologist, Ms Storey, who he consults on a monthly basis.
49 Dr Weissman noted the plaintiff:
· did not wish to take any anti-depressant medication
· had problems coping with Blake’s challenging behaviour and had concerns regarding Blake’s future
· had difficulties with sleep
· had issues with his appetite and weight
· had diminished motivation and drive regarding AA and other social activities.
50 Dr Weissman opined that it was reasonable to consider that part of the plaintiff’s current presentation was due to previous traumatic events relating to the accident in 1997. He viewed that the plaintiff had, at the time of the transport accident, a pre-existing chronic persistent Depressive Disorder associated with anxious distress and traumatisation features, which had not been treated. He noted that the plaintiff continued to work full time and remained doing so until October 2010.
51 Dr Weissman provided his opinion on the assumption that there was a connection/association between the traffic accident and Nicole’s death.[28]
[28]PCB 69
52 In respect of the transport accident and Nicole’s death, he considered that the plaintiff had sustained and developed a moderate group of psychiatric conditions and mental injuries representing an aggravation of a pre-existing condition namely:
(i)a Chronic Persistent Depressive Disorder with anxious distress/chronic dysthymia/Chronic Adjustment Disorder with Depressed and Anxious Mood, at times evolving into a Chronic Major Depressive Disorder with anxious distress (though not at the current time);
(ii)a mild to moderate chronic sub-threshold PostTraumatic Stress Disorder; and
(iii) an unresolved grief reaction and complex/complicated bereavement process.[29]
[29]PCB 72
53 In terms of the plaintiff’s work capacity, on purely psychiatric grounds, Dr Weissman considered the plaintiff to be totally and permanently incapacitated for all work. He opined that this was caused by, or significantly contributed to by, the plaintiff’s psychiatric condition, arising from the transport accident.
54 As to other areas of the plaintiff’s functionality, Dr Weismann considered that:
“There has been a significant decline and deterioration in his level of function particularly in terms of his motivation and drive, self-esteem and confidence, ambition and competence, decision making and concentration and short-term memory with major resultant impact upon his socialisation, leisure and recreational activities, and in particular, his occupational functioning/capacity. This has led to an erosion of his self esteem and confidence, a huge sense of loss and grief, and associated feelings of guilt. There has been, and there continues to be, a moderately severe amount of accident-related psychological and emotional pain and suffering, loss of quality of life, loss of enjoyment and pleasure.”[30]
[30]PCB 72
55 Dr Weismann viewed the plaintiff’s prognosis as “… uncertain and guarded … relatively/reasonably poor in the scheme of things”.[31]
[31]PCB 72
The Defendant’s medico-legal evidence
Dr Peter Cotton, psychologist
56 Dr Peter Cotton, clinical and organisational psychologist, saw the plaintiff on 6 March 2012 and provided a report dated 19 March 2012. His opinion is of limited assistance given the time and events that have elapsed since his assessment.
57 I note however that Dr Cotton opined that the plaintiff at that time exhibited chronic low grade anxiousness and very mild residual depressive symptoms. He viewed his symptoms as sub-clinical in severity and unlikely to meet diagnostic criteria for any formal clinical diagnosis. However, he viewed the plaintiff as remaining quite psychologically fragile with limited personal coping resources and negligible resilience in relation to dealing with any future stressful events.[32]
[32]DCB 11-12
Associate Professor (“Dr”) Peter Doherty, psychiatrist
58 Dr Doherty examined the plaintiff on 11 April 2019 and provided a report dated 21 April 2019.
59 Dr Doherty, after considering the plaintiff’s history of alcoholism and that it was in remission at the time of the transport accident, noted the plaintiff:
·had a history of nervousness with periods of depression prior to the transport accident.
·was not on any psychological or psychiatric medication or treatment at the time of the transport accident; and that
·his psychological/psychiatric problems commenced in late 2010, in the context of a stressful work situation and his mother’s illness.
60 Dr Doherty opined:
“… my view is that there have been psychological reactions to serious incidents occurring through his life, and he is emotionally and psychologically sensitive. However, the level of clinical symptoms, distress and behavioural change is not such that warrants the making of a diagnosis of a psychiatric condition. In my opinion, the criteria for the diagnosis of conditions such as adjustment disorder, depression and PTSD are not met.”[33]
[33]DCB 22
61 Dr Doherty viewed the prognosis for the plaintiff as favourable.
62 In considering the effect on the plaintiff of the transport accident, Dr Doherty noted:
“The claimant told me he suddenly ceased work, in November 2010 in the context of promotion at work, stress, his mother’s illness, and panic episodes. He was to develop a close relationship with the now deceased Nicole. He told me that he has now taken on a parental responsibility for Blake.
Nicole and Blake were living with the claimant and his partner before and at the date of the transport accident, and the claimant continued in work after the transport accident and was later promoted at work, suggestive that the transport accident and its immediate consequences did not cause a significant disruption to the claimant's capacity for work. He then had what he called a nervous breakdown related to work stress, compounded by his mother’s hospitalisation, not the consequences of the transport accident for Nicole.
…
In my opinion, there has not been a significant psychological reaction to the changed family arrangements. The care arrangement he has with Blake and previously also Nicole has given him purpose and role and have been positive influences on his mental health.”[34]
[34]DCB 24
63
Dr Doherty attributed other factors not related to the transport accident as a cause of the plaintiff’s psychiatric condition/history, including the burden of caring for Blake, increased pressure at work and his mother’s psychiatric issues. He viewed the plaintiff’s cessation and then subsequent incapacity for work as not related to the transport accident rather, that he “ceased work, in November 2010 in the context of largely unrelated causes for stress”. Further, he did not regard the plaintiff as being significantly impaired in undertaking any leisure and domestic activities by any psychological reaction to Nicole’s injuries, her care needs or death.
Counsels’ submissions
64 Counsel for the defendant submitted that I should accept the opinion of Dr Doherty – that the plaintiff did not suffer from any diagnosable psychiatric/psychological condition. It was submitted that there was support for this view in the opinion expressed by Dr Cotton, psychologist. Dr Cotton had, in 2012, formed the view at that time, the plaintiff suffered symptoms of anxiety and distress, but not at a level to support any formal clinical diagnosis of a psychiatric/psychological condition.
65 Alternatively, counsel for the defendant submitted that even if I accepted that the plaintiff suffered from a psychiatric/psychological condition, his condition falls short of the “severe” bar required.
66 It was submitted by counsel for the defendant that given:
·the absence of continued significant symptoms;
·the absence of any psychiatric treatment or medication; and
·the absence of any inpatient or outpatient hospital treatment, as had previously been undertaken by the plaintiff in the early 1990s,
that the plaintiff did not suffer from any psychiatric/psychological condition that met the “severe” criteria.
67 In support of this alternative, reliance was also placed on the opinion of Dr Weissman that the plaintiff had:
(i)“moderate” aggravation of pre-existing chronic recurrent persistent Depressive Disorder with anxious distress.
(ii)“mild to moderate” chronic sub-threshold Post-Traumatic Stress Disorder part pre-existing and part aggravated by the transport accident;
(iii) chronic grief reaction, complex complicated bereavement process – part pre-existing and partly aggravated by the transport accident.
68 That in accordance with Petkovski v Galletti,[35] the aggravation has to qualify as “severe” – the use of terms by Dr Weisman as “moderate” or “mild to moderate” or no indication of quantification in respect of the plaintiff’s grief reaction, were not of assistance to the plaintiff in proof that the aggravation itself was severe.
[35] Supra
69 Additionally, it was submitted, Ms Storey’s reference to the frequency of the plaintiff suffering acute anxiety episodes and depression, did not support a characterisation of his condition as “severe”. The nature and frequency of the plaintiff’s symptoms were intermittent and not continuous. That according to Ms Storey, the plaintiff’s anxiety and depression episodes had reduced in duration in the year following Nicole’s death.
70 It was put by counsel for the defendant that as a result of the multitude of issues experienced by the plaintiff both before the transport accident and after it, particularly in late 2010, that his condition was causally related to incidents other than the transport accident. That a disentangling exercise was required as the transport accident was not primarily responsible for his current state.
71 Reference was made by counsel for the defendant to other features of the plaintiff’s life being responsible for his “breakdown” in November 2010. Within about three weeks of the transport accident, the plaintiff returned to work and he later was promoted. The notes of his general practitioner, and evidence of the plaintiff reveal only limited contact with his general practitioner in the months after the transport accident. The plaintiff did not consult his general practitioner between 27 May and 27 October 2010. The notes of the general practitioner at the consultation on 8 November, 2010 revealed the plaintiff had discussed with her the potential to call the “anxiety, panic attacks and nausea as a result of Workplace stress” for the reasons there set out,[36] connected to his new job/role.
[36]See paragraph 34 above
72 Further, it was submitted that I should accept that the plaintiff has a capacity to work, but that he has made the choice to care for Blake and engage in volunteer work. That this was the reason why the plaintiff had not returned to work since 2010 and it had nothing to do with incapacity to work. I should accept Dr Doherty’s view on this issue, as it was consistent with the plaintiff’s medical records or file. That in late 2010, the plaintiff ceased work because of the stress involved in his new job, which was unrelated to the transport accident.
73 It was submitted that by early 2011, the plaintiff was seeking to return to employment with his old job. When the plaintiff was informed that his position was not available, he looked elsewhere for work and returned to further study. He was able to successfully complete the relevant certificate or training in drug and alcohol counselling, care for Blake and additionally, was engaged in a significant amount of voluntary work for AA. In the first half of 2011, the plaintiff was ready and capable of going back to work. Since April 2013, he has participated in these activities and decided not to engage in full-time work. These, it was submitted, were choices that the plaintiff made, and were not as a consequence of any psychological issues arising from the transport accident.
74 Counsel for the defendant submitted that I should reject Dr Weissman’s opinion as to the plaintiff’s work capacity – that Dr Weissman did not have an appreciation that the plaintiff ceased work in 2010 because of issues other than the transport accident. It was submitted that you cannot reconcile Dr Weissman’s opinion with the plaintiff’s keenness to return to work in 2011, the reason for him being unable to do so (redundancy), the plaintiff’s capacity to successfully complete his course, care for Blake, and his substantial level of involvement with AA since the transport accident.
75 Further, it was submitted the current treatment of the plaintiff is minimal intervention, with a psychologist once a month, no medication, no general practitioner input regarding psychiatric care and no formal psychiatric treatment. That the plaintiff is still able to lead a full life, with positive interactions with Blake and other family members, has travelled overseas, and has continued participation in activities in the community.
76 As to disentanglement issues, counsel for the defendant submitted that I should consider that some of the plaintiff’s symptoms, for example panic attacks, did not commence until after the transport accident, some fourteen months later. This was, it was submitted, attributable to the December 2010 accident and consistent with the plaintiff’s own evidence regarding the psychological impact of it.
77 It was submitted that view was supported by Dr Lewis, who attributed more psychological symptoms to the December 2010 accident than the transport accident, and saw the plaintiff in closer proximity to those events.
78 It was submitted by counsel for the defendant that any aggravation of the plaintiff’s condition as a result of the transport accident at its highest should be regarded as moderate.
79 Counsel for the plaintiff submitted that I should consider the different periods in the plaintiff’s circumstances from the transport accident until Nicole’s death and the time thereafter. That effectively the aftermath of the transport accident was such as to spread over that time. That there were periods since the transport accident where the plaintiff’s symptoms had fluctuated, but since Nicole’s death, his situation deteriorated.
80 It was conceded, given the opinion of Dr Weismann, that the transport accident had aggravated a pre-existing condition, which it was submitted, was further aggravated by the death of Nicole. That the period since the transport accident, including after Nicole’s death, needs to be looked at comprehensively. It was submitted that psychological/psychiatric issues that were latent prior to the transport accident were now severe.
81 It was submitted that I should reject the opinion of Dr Doherty that the plaintiff’s psychological condition was not related to the transport accident. That the evidence from other practitioners, particularly the plaintiff’s general practitioner and Mr Kotler, who identified the commencement of the plaintiff’s psychiatric/psychological condition as related to the impact of the transport accident, in addition to other issues, was ignored or not considered by Dr Doherty. Similarly, evidence of the plaintiff as to the stressors operating at the time of his breakdown incorporated the impact of the transport accident, as well as the issues relating to work and other elderly family members.
82 Thus it was submitted that I should accept the plaintiff and his partner’s evidence as to the changes in his lifestyle, including his inability to work, and his level of functionality before and after the transport accident, and after Nicole’s death.
83 It was submitted that I should consider the plaintiff’s life, work and community activities before and after the transport accident, including:
· his breakdown in November 2010; and
· the significant level of treatment with Mr Kotler until 2014; and
· the level of improvement in the plaintiff’s functioning up until Nicole’s death.
84 That I should then consider since Nicole’s death, the decrease in the plaintiff’s level of functioning, particularly:
· his decrease in or reduced AA involvement;
· heightened levels of stress and anxiety; and
· re-commencement and continuation of psychological treatment.
85 That I should accept Dr Weissman’s opinion that the plaintiff does not have a capacity to work.
86 Counsel for the plaintiff submitted there was support for the view that the plaintiff still had psychological issues related to the transport accident two-and-a-half years after it, expressed by Dr Cotton.[37]
[37]T87
87 Counsel for the plaintiff also relied on Ms Storey’s opinion and the unlikelihood of the plaintiff being able to engage in employment, though recognising there were benefits of him participating in other voluntary or social activities.
88 It was conceded by counsel for the plaintiff, on the basis of Dr Weissman’s opinion, that the plaintiff had pre-existing psychiatric symptoms following the 1997 accident; however, prior to the transport accident, there was nothing to suggest social/leisure withdrawal, and the plaintiff continued to work full time.
89 The aggravation of the plaintiff’s psychological condition as a consequence of the transport accident (including Nicole’s death) resulted in:
· the plaintiff throwing himself into work so as to avoid dealing with issues related the transport accident;
· a breakdown in November 2010, given his level of functioning at that time related to the transport accident and other issues operating at the time;
· a continued inability or incapacity to work the extent to which has fluctuated since the transport accident, but since Nicole’s death has continued.
90 That as a consequence of the transport accident, the plaintiff’s psychological conditions set out in Dr Weissman’s report were aggravated, such aggravation being to the extent that he has no capacity to undertake paid employment. That this factor, along with other impacts on his social, leisure and voluntary or community activities and his continued consultations with his psychologist, point to that aggravation being severe. Further, that given the situation has not improved since Nicole’s death three-and-a-half years ago, the condition is long term.
Analysis
91 It was not suggested in cross-examination or submissions by counsel for the defendant that I should not accept the plaintiff as an honest and reliable witness. The plaintiff gave his evidence in a straightforward manner and made concessions or attempted to answer all questions without hesitation. I accept the plaintiff’s evidence, particularly in respect of his current level of functioning. It was supported by the unchallenged evidence of his partner and the accounts that he has provided to various practitioners since the transport accident.
92 I note that Dr Weissmann indicated:
“it is outside my area of expertise to know whether Nicole’s death was due to, or related to, her involvement in the subject transport accident. However, for the purposes of this report, I will assume that there was connections/association between the subject transport accident and her death.”[38]
[38]PCB 69
93 Counsel for the plaintiff proceeded on the basis that Nicole’s death was related to the transport accident. This was not challenged or responded to by counsel for the defendant.
94 The plaintiff was functioning well before the transport accident. Although there had been issues in the course of his life, significantly arising from events on New Year’s Eve 1996-1997, the impact on his level of functioning in all aspects of his life, including occupation and work, was not apparent. He was working full time, actively engaged on a volunteer basis with AA and enjoying life and social activities, including having Nicole and Blake living in his home.
95 The transport accident occurred on 9 October 2009. After a short time off work, the plaintiff returned to work and was successful in seeking and obtaining a promotion. That situation changed in late 2010, when he suffered a breakdown.
96 All of the relevant practitioners, except Dr Doherty, view the plaintiff as suffering psychological conditions variously described as Persistent Adjustment Disorder with Mixed Anxiety and Depressed Mood, Post-Traumatic Stress Disorder, or as unresolved grief, stress, anxiety or depression. I accept that the plaintiff suffers from a relevant psychological or psychiatric condition.
97 Each of these practitioners also recognise a causal connection between the transport accident and the plaintiff’s psychiatric/psychological condition at the time of their assessment. Dr Doherty is alone in his view that the breakdown in 2010 was not attributable to the transport accident or that it should be viewed in the context of largely unrelated causes of stress.
98 I prefer the opinions of the others, as:
· The plaintiff’s general practitioner, Dr Carmen, in her report, records that as at December 2010 (or the time of the December 2010 accident), that the plaintiff already had high stress levels and that he was receiving counselling for “issues” related to the transport accident.[39] There is also a reference to his stress leave, which she regarded as secondary to his overwhelming anxiety and depression around the home situation and at the stage he began counselling with Mr Kotler.[40]
[39]DCB 3
[40]DCB 4
· Dr Carmen’s notes record complaints of stress and depression[41] and the creation of a mental health plan[42] in May 2010, in the months before the plaintiff ceased work. When reference is made to stress leave because of work in those notes, the context should be considered, including:
[41]DCB 58 – 20 January 2010; 27 January 2010; 14 April 2010
[42]DCB 57 – 26 May 2010
“… write a certificate for leave due to Workplace stress for a month or so but i[f] and when med reports are requi[r]ed I would be considering that the anxiety has a major component the stressors in his private life.”[43]
[43]DCB 55 – 8 November 2010
· The plaintiff consulted his psychologist, Mr Kotler, on a regular and consistent basis for a prolonged period after his breakdown. The plaintiff re-engaged with his psychologist when Nicole died. Mr Kotler’s report makes extensive reference to the transport accident, its impact on the plaintiff’s psychological state and the psychological treatment recommended, as well as progress he made. Mr Kotler delineates the period in the plaintiff’s condition in timeframes after the transport accident and after Nicole’s death and thus links his symptoms to identifiable stressors related to the transport accident.
· The opinions of the plaintiff’s treaters is consistent with the evidence of the plaintiff and his partner that factors relating to the transport accident were operating on the plaintiff’s mind at the time of his “breakdown” in November 2010.
· The plaintiff in his evidence, conceded that there were challenges with the new job in the course of cross-examination;[44] however, the effect of his evidence was that he left the job due to his inability to cope with stress and anxiety not related to the job, rather to the circumstances of Nicole and the aftermath of the transport accident, that dominated his thoughts. He thought that he was avoiding issues by concentrating on his work, but that ultimately he could not cope.
[44]T18-20
· Dr Doherty makes reference to some of the general practitioner notes but does not include those where a clear reference is made the plaintiff’s stress and depression between the transport accident and 26 May 2010.[45]
[45]DCB 23 and paragraph 34 above
· Dr Doherty does not mention the reference to the transport accident as a reason, along with other issues, for the general practitioner’s referral to the psychologist. Further, no reference is made by Dr Doherty to Mr Kotler’s report, and Mr Kotler’s opinion as to the plaintiff’s initial presentation relating to both the transport accident and other issues.
· Additionally, Dr Doherty makes no reference to any difference in the level of the plaintiff’s functioning in the period following the breakdown in 2010 and after Nicole’s death.
· Dr Weissman makes reference to the plaintiff ceasing work ostensibly in relation to his psychological and emotional symptoms regarding the transport accident. Dr Weissman was informed by the plaintiff that for the first eleven to twelve months after the transport accident, he threw himself into work, worked long hours and avoided issues – he then had a breakdown and was unable to work and unable to tolerate any pressure or stress. Clearly, Dr Weissman was aware of other issues operating on the plaintiff at the time of his breakdown in 2010.
· I reject the opinion of Dr Doherty as to no link between the plaintiff’s psychological condition, his breakdown and the transport accident. Both the plaintiff’s treaters, and Dr Weissman, recognise the contribution of the transport accident and its aftermath to the plaintiff’s psychological condition and his level of functioning. It is artificial to attribute no contribution of the transport accident consequences to the aggravation of the plaintiff’s condition at that time.
99 The issue to be determined is whether the aggravation of the plaintiff’s psychiatric/psychological condition is severe and long term.
100 The approach to adopt was recently affirmed in the High Court in Transport Accident Commission v Katanas.[46] The extent of treatment made necessary by such a disorder or condition is relevant to whether it should be classed as severe, though that is only one among a range of considerations that need to be taken into account. The consequences must be more than “very considerable” when a comparison is made with other cases in the possible range of impairments. The correct approach is to bring to account all relevant circumstances personal to the plaintiff and apply the narrative test outlined in Humphries & Anor v Poljak[47] given each identified relevant circumstance. There is a necessity to consider the overall impact of his psychiatric/psychological condition on the plaintiff – relating to treatment, medication, work capacity, effect on daily living and social and leisure activities.
[46][2017] HCA 32
[47][1992] 2 VR 129 at 140
101 The plaintiff currently has limited treatment, though he has a history of regular and consistent psychological treatment between 2010 and 2014, and then again later after Nicole’s death.
102 Dr Weismann’s characterisation of the plaintiff’s current condition as mild-moderate or “development of a moderate group” of psychiatric conditions is a relevant matter to consider but is not determinative of the application.
103 The impact on the plaintiff’s leisure, social and domestic activities and interaction has been significant, particularly since the death of Nicole. He is still able to drive, care for his granddaughter and engage in family social activities. However, he has significantly reduced his voluntary work with AA and any “work” tasks take much longer than they should. His sleep is poor and his elevated anxiety and stress does not allow him to function properly, with his thought and concentration diminished and his mind racing.
104 The fact that the plaintiff returned to work soon after the transport accident and was promoted, needs to be viewed in the context of Mr Kotler’s opinion, who assessed the plaintiff at that time, and opined that the plaintiff had dealt with issues by avoidance and threw himself into his work immediately after the transport accident.
105 I accept Dr Weismann’s opinion that there has, as a consequence of the transport accident, been a major resultant impact upon the plaintiff’s socialisation, leisure and recreational activities and in particular his occupational functioning/capacity.
106 I accept these features make it such that the plaintiff has been unable to return to paid employment, which he was able to undertake prior to the transport accident. Although there was a period of time since the transport accident and his breakdown in 2010, when the plaintiff engaged in “work like activity for AA”, he was not efficient in undertaking those tasks. Although there was some improvement in his functioning from 2011, despite these improvements, the aftermath of the transport accident, particularly since the death of Nicole, plays a major role in the plaintiff’s level of functioning, and he is incapable of working.
107 Whilst the “severe” test is a high bar, I am satisfied that the loss of capacity to work and consequent financial loss, impact on or reduced capacity to engage in voluntary work, decreased mood and decreased level of social/familial interaction, sleep difficulties, heightened anxiety and stress and psychological treatment, all resulting from his psychological condition as a consequence of the transport accident, are such that the aggravation of his psychological condition is “severe”.
108 I accept that there is no indication his condition will improve, particularly since there has been no improvement since the death of Nicole in 2015, and he has had ongoing counselling and his condition is continuing.
109 I grant leave to the plaintiff to bring proceedings for damages in relation to this transport accident injury.
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