Noonan v State of Victoria
[2013] VCC 978
•8 August 2013 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05513
| JOSEPH LEO NOONAN | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 16, 17 and 18 July 2013 | |
DATE OF JUDGMENT: | 8 August 2013 (at Melbourne) | |
CASE MAY BE CITED AS: | Noonan v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 978 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury – part (c) application – PTSD – former police officer
Legislation Cited: Accident Compensation Act 1985, s135A(4)(b)
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Humphries v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Rodda v Transport Accident Commission [2008] VSCA 276; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
Judgment:Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti SC Mr G Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr P B Jens Mr M K Clarke | Wisewould Mahony Lawyers |
HIS HONOUR:
1 In this application, Mr Noonan, the plaintiff, was represented by Mr Monti, Senior Counsel, with Mr Pierorazio, and the defendant was represented by Mr Jens with Mr Clarke.
2 The plaintiff applies for leave pursuant to s135A(4)(b) of the Accident Compensation Act 1985 (“the Act”) to issue common law proceedings for the recovery of damages against the defendant.
3 The plaintiff's solicitors, Nevin Lenni & Gross, received a letter, exhibit A, dated 24 October 2012 indicating a negative determination by the Authority of the plaintiff's application of a serious injury certificate.
4 On 10 November 2012, an Originating Motion was issued seeking leave to issue proceedings. The application was listed for hearing on 26 June 2013 in Wangaratta and proceeded thereafter.
5 In opening, Mr Monti said that the serious injury in the application is a serious injury pursuant to part (c) of the definition of “serious injury” contained in ss(19) of s135A of the Act, and identified such as the Post-Traumatic Stress Disorder which developed, as the plaintiff alleged, when the plaintiff worked in the Victorian Police Force in the period 1981 through to 1990.
6 Mr Monti said that the relevant consequences to be relied upon were pain and suffering consequences, and further submitted that those consequences were of such a degree that they would satisfy the statutory test.
7 In reply, Mr Jens initially identified an issue under s135AC as to the plaintiff satisfying the requirements of ss(b) thereof. However, on 18 July 2013, both counsel consented to the Court making the declaration sought in the Originating Motion pursuant to s135AC(b).[1]
[1]See Transcript (“T”) 135
8 That left therefore, the remaining issue for the Court to determine, being as to whether the plaintiff, Mr Noonan, satisfied the statutory requirement relevant to a part (c) serious injury.
9 In opening, Mr Jens had indicated that the second issue was, what were the consequences of the plaintiff’s Post-Traumatic Stress Disorder, and the question for determination was did such consequences satisfy the statutory definition that I have referred to, as informed by the authorities, in particular of Mobiliov Balliotis,[2] a determination of the Court of Appeal.
[2] [1998] 3 VR 833
10 As to the statutory framework, in order to succeed in this application, Mr Noonan must satisfy this Court, on the balance of probabilities, that the injury suffered by him was a “serious injury” pursuant to the terms of s135A(19) of the Act.
11 The plaintiff’s counsel advised the Court that the alleged serious injury fell within the definition contained in s135A(19)(c), being a permanent severe mental and/or permanent severe behavioural disturbance or disorder.
12 The word “severe” in this context was considered by the Court of Appeal in Mobilio, and in the judgment of Brooking AJ. Without suggesting the use of any particular adjective to mark the distinction, his Honour said:
“I would say that ‘severe’ is used in the definition as a stronger word that ‘serious’.”
13 Relevant to this part (c) application, albeit the majority were incorrect insofar as they identified the appropriate test, in Turner v Love & Transport Accident Commission,[3] the principles were set out therein as to assessing such injuries, in particular as to the consequences, and the need for a court to look at the consequences of a psychiatric or mental illness or disability, insofar as they include the need for treatment, its type, its frequency, any past and future potential side effects, and principal long-term consequences, those matters being referred to by the Court at p323.
[3](1995) 1 MVR 314
14 Reference was also made by Mr Jens to the determination of Callaway JA in Transport Accident Commission & O’Dea v Dennis,[4] in particular at paragraphs 20 to 40 thereof, where his Honour addresses the requirement of such test, and referred to the analysis of the word “serious” in the definition in part (a) in Humphries v Poljak,[5] and said:
“A ‘severe’ disturbance is a disturbance of an order that can fairly be described at least as ‘very considerable’. It is unnecessary to decide on the present appeal whether more is required to satisfy para(c). Compare Turner v Love … and Ingram v Ingram … The adverb ‘very’ is important, for many disturbances are considerable, in the sense that they are important or substantial, without being very considerable. The distinction must be maintained if the legislative purpose of s93 is to be implemented.”
[4][1998] 1 VR 702
[5][1992] 2 VR 129 at 141
15 Mr Jens referred to other authorities which he said impacted directly upon the issue before the Court. In Dwyer v Calco Timbers Pty Ltd (No 2),[6] Ashley JA said:
“Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[6][2008] VSCA 260 at paragraph [27]
16 As to the capacity to work, Mr Jens also relied upon the words of Chernov JA, as he then was, albeit referring to a part (a) application, in the case of Sumbul v Melbourne All Toya Wreckers Pty Ltd,[7], under the heading “Pain and suffering consequences” where his Honour said:
“I now turn to consider the appellant’s claim that her Honour erred in concluding that the appellant had not established that the pain and suffering consequences of his injury were such as to constitute it a ‘serious injury’ for the purposes of the Act. If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. In my view, there was no such evidence before her Honour.”
[7][2006] VSCA 292 at paragraph [24]
17 Mr Jens also, appropriately, referred the Court to the further comments of the Court of Appeal on this topic in the case of Stijepic v One Force Group,[8] where the following was said:
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered. In this case, the appellant’s resumption of educational and employment activities, and his employment prospects, have played but a small part in our conclusion that the pain and suffering consequences of his compensable injury do not satisfy the statutory test.”
[8][2009] VSCA 181 at paragraph [47]
18 Then the current President in the case of Haden Engineering Pty Ltd v McKinnon,[9] said:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. - 15#15 What matters in this regard is the extent to which “an area of work which [the plaintiff] enjoyed has been closed off to [him or her].”
[9](2010) 31 VR 1 at paragraph [15]
19 A further reference in regard to a part (c) claim was to Rodda v Transport Accident Commission,[10] where the Court said:
“Third, to fall within para (c) of the definition of serious injury, the consequences of a mental or behavioural disturbance or disorder to the particular applicant must be ‘severe’. Because severe is a word ‘of stronger force’ than the word ‘serious’, the consequences must be more significant under para (c) of the definition than under para (a).”
[10][2008] VSCA 276 at paragraph [77]
20 Mr Monti, in final submission, did not submit that such authorities were not relevant or applicable to the issues in this case.
21 Coming therefore to the case presented by Mr Noonan, the plaintiff tendered his two affidavits, exhibit B1 and B2, and was cross-examined by Mr Jens. Also tendered on Mr Noonan’s behalf were exhibits A through to K.
22 Mr Jens, on behalf of the defendant, did not tender any evidence.
23 The case of the plaintiff is one of Post-Traumatic Stress Disorder of late presentation.
24 Mr Noonan, in his affidavits, describes the stress involved in his work as a police officer in the period 1981 to 1990, and in particular, his work in the Major Crime Branch. In this regard, one refers especially to the experiences he refers to in paragraphs 7 to 9 in exhibit B1 and in particular at paragraph 12, and further, as to how he, in order to cope with such experiences, drank to excess.
25 Mr Noonan then goes on in his affidavit to describe his work history post the police force, in particular at paragraphs 13 to 27 and paragraph 30, and the issues he had with such work.
26 Mr Noonan describes his ongoing symptoms of the stress disorder at paragraphs 31 to 35, and his treatment at paragraph 36, including ongoing medication, being Seroquel, Prozac and Astrix.
27 At paragraph 39 of his affidavit, he describes all of the above as symptoms caused by the undiagnosed Post-Traumatic Stress Disorder which he believes he was suffering in the police force and, which was, as I say, not diagnosed until many years later.
28 In exhibit B2, an affidavit dated 5 July 2013, Mr Noonan updated such history and symptomology which he ascribes to Post-Traumatic Stress Disorder, at paragraphs 12 to 26 and paragraphs 39 to 41
29 In cross-examination, Mr Jens challenged Mr Noonan’s suggestion in the affidavits that after leaving the police force in 1990, he has had issues in all his employment, his further statement that his employment usually ended in unhappiness and that no job that he had post the police force lasted over three years.
30 On analysis, I find that these comments of Mr Noonan simply do not stand up. He has been essentially in continual employment, at high levels of responsibility since he left the police force.
31 Firstly, post police force, he ran his own successful company for four to five years, selling insurance. On his own evidence, he was very good at selling and did very well in such company.
32 Thereafter, he hit hard economic times due to an unrelated investment which he made in New Guinea.
33 Recovering from such situation, he was able to obtain a job in New Guinea where his family was at the time, and that job involved him, especially given his background, in investigation corruption which led to him being connected with the most senior politicians in government in New Guinea.
34 Then, in 2003, he came back to Melbourne as the general manager of the security company, AFS. Subsequent to that, he then worked for two years as the national general manager for SecureCorp, then operations manager for Force Five, which at the time had hundreds of sites, and by that time he was earning $100,000, compared to the $50,000 he was earning when he left the police force.
35 On his evidence at that time, he was working 15-hour days, and had also started an MBA off-campus.
36 Mr Noonan then became the operational manager for Chubb Enterprises, a national Australian company, for a year, and thereafter, a sales representative for the company Hitachi Constructions for a period of three years. It should be noted that in the economic details filed by the plaintiff,[11] in 2008, his income with Hitachi was $276,000 for the year.[12]
[11]exhibit C
[12]PCB 21
37 Going back to Chubb, it would appear that on 15 December 2006, Mr Noonan resigned from that job, and thereafter lodged a worker’s compensation stress claim against Chubb alleging harassment in regard to issues that had occurred during that period with Chubb.
38 It should be noted that in the period 2000 to 2006, there had been never any issues raised in regard to stress during any employment, and Mr Noonan said he had attended no particular doctor throughout that period.
39 In 2011, he was appointed development manager of United Security Group in Ringwood, and subsequently, in 2012, started as development manager in the specialised security company, Wilson Security.
40 The turnover at Wilson Security at the time, being a national company, was $250m. Mr Noonan had Australia-wide responsibility for such company and the operations of same. He started with Wilson in 2012 on a salary package of $165,000.
41 In early March 2013, he was “poached”, I think is the polite term, by the company G4S, a company well known to this Court. He lasted at G4S only one month because his employer, Wilson, and in particular his direct manager who had worked with him in Chubb and had been responsible for him being employed by Wilson, determined that they must have Mr Noonan back in their organisation. Wilson then offered Mr Noonan a package which meant that, despite being poached by G4S, within a month; that is, by April of this year, he had been rehired by Wilson Security on a $200,000 package.
42 In talking about the employment with Wilson, Mr Noonan said in evidence that he is a person who works very hard, that he was regarded very highly by his employer, which is obviously demonstrated by the fact that he was “re-poached”, if I may use that phrase, and given a very high package. Mr Noonan said to the Court that despite that, his employer allows him to work at his own pace, which enables him to manage his Post-Traumatic Stress Disorder. There was no evidence called in that regard of the employer nor, I should say, was there any challenge to that evidence of Mr Noonan.
43 Mr Noonan was asked by Mr Jens to further describe his work with Wilson Security. He said his role is Australia-wide; he confirmed the turnover that I have already referred to of $250m; he said that he heads up the team which promotes development for the firm and provides critical resources to strategic and specialised markets in the mining industry of Australia. In order to perform that central role, as he said, he travels throughout Australia, and indeed he travels internationally.
44 Mr Noonan described himself, in carrying out this job, as being computer-literate, as being particularly skilled in the English language and the expression of same, and as a person who excels at sales in this field.[13]
[13]T94
45 Mr Noonan said that he flies over 110,000 kilometres per year with Virgin Airlines. I also refer in this regard to the schedule of earnings[14] that was tendered showing the income that Mr Noonan has earned in various occupations from the year 2005 through to 2011.
[14]exhibit C
46 As to his personal life, as well as carrying out the tasks involved in his employment, he said he is a person who regularly goes to the gym, unless he is away from Melbourne; he is in the gym for at least one to two hours three to four times per week. Indeed, it is true to say, when giving evidence, he looks a very trim person. He said whether he is in the gym or not he exercises daily, works out with weights every day in order to look after his body. He had recently, that is in 2009, tried out for a football team, despite his then age of 47, he said he had played tennis until recently.[15]
[15]T100
47 Mr Noonan has recently, that is, since 2012, begun a new relationship. He had met his current partner through the dating company, RSVP, and said that he started up such partnership after interviewing six persons recommended or introduced by RSVP.[16]
[16]T85
48 Further, he told the Court that he has written a book about his experiences in the police force.[17] That book involved 220,000 words, and is now with a publisher, the title being ‘Breaking Ranks’.
[17]T101
49 The above summary of his work life and his life apart from work presents, I find, the antithesis of a person who has a severe long-term mental or behavioural disorder, albeit that he may have a Post-Traumatic Stress Disorder.
50 Mr Noonan says that during, and since, his time in the police force, he has been a violent person, a person who is argumentative, a person who has drunk to excess and has had difficulties with coping and relating to his employers and with his family.
51 Mr Noonan says (despite the fact that in his worker’s compensation claim for stress caused at Chubb he made no reference to any prior issues with the police force), that the real cause of his current and past mental turmoil and trauma is the Post-Traumatic Stress Disorder which he developed due to the type of work that he had to perform in the police force.
52 Mr Noonan’s evidence was that he had an epiphany when he was asked by Dr Aitken, psychiatrist, to fill out the questionnaire attached to Dr Aitken’s report.[18]
[18]exhibit D1; Court Book (“CB”) 28-31; T118
53 Such epiphany started when he went to see Mr Powles, a psychologist in Kyabram, in May of 2010 upon reference from his general practitioner, Dr Gyi in Kyabram.
54 As to the questionnaire that I have referred to above, Mr Noonan said in evidence that he told Mr Aitken “You would reckon I wrote these because it was everything that I had gone through for years, that I had never associated with being post traumatic stress”.[19]
[19]T118
55 Mr Jens, in final submission, submitted that when one assesses what the plaintiff retains in life, despite his Post-Traumatic Stress Disorder, that such is very much an active life, a fruitful life in regard to both employment, relationships, the capacity to write a large text, and his gymnasium activity. Mr Jens submits that the medical opinion relied upon by Mr Monti as to the risks to the plaintiff’s employment caused by Mr Noonan’s Post-Traumatic Stress Disorder beggars reality. Mr Jens submitted that that is so, especially given the circumstances in the last year where he was head-hunted from his employer, and then re-head-hunted by Wilsons upon a much higher package.
56 As was referred to by Mr Jens, Ashley JA, as he then was, in Jayatilake v Toyota Motor Corporation Australia Ltd,[20] stated that, whether a worker has suffered a serious injury is a matter that should be decided upon all the evidence, and referred to an earlier statement that he made in Grech v Orica Australia Pty Ltd & Anor:[21]
“… it was not a trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that the medical opinion did not provide answers to those questions. … .”
[20](2008) 20 VR 605 at 167, paragraph [17]
[21](2006) 14 VR 602 at 611
57 As I often remark in these cases, the issues are so often so finely balanced with medical opinion both ways. However, of course, in this case, there is no medical evidence at all tendered by the defendant.
58 Mr Monti relies strongly upon the medical evidence in support of the plaintiff’s case. He submitted and argued strongly that such medical evidence supports the plaintiff’s case that the degree of his Post-Traumatic Stress Disorder is such that it satisfies the test of “severe”.
59 Somewhat remarkably, there is no evidence before the Court from any general practitioner. Perhaps the reason for that is that the treating psychologist says in one of his reports that Mr Noonan expressed a feeling of mistrust of general practitioners. The plaintiff also refers to this in his affidavit.[22]
[22]Exhibit B2 at paragraph 3
60 Mr Noonan’s current medication described at paragraph 30 of that affidavit is Seroquel and Fluoxetine, and such would appear to be prescribed by the psychiatrist, Dr Aitken, although there was reference in evidence by Mr Noonan to him also having a prescription from a general practitioner.
61 There is upon the evidence, I find, no doubt upon the medical opinion that as a result of Mr Noonan's experience in the police force, he has suffered a Post-Traumatic Stress Disorder. Dr Aitken, the consultant psychiatrist,[23] in a report dated 27 September 2010[24] diagnoses Mr Noonan with Post-Traumatic Stress Disorder with features of Depressive Disorder and generalised Anxiety. Such diagnosis was confirmed by Mr Powles, the psychologist, see exhibit E1, a report of 6 June 2010, and in exhibit E2.[25] Further, such diagnosis was confirmed by Dr Dharwadkar at exhibit G1, a report of 7 June 2010,[26] by Dr Prytula, see exhibit H, a report of 2 May 2011,[27] and further by Dr Epstein, psychiatrist, exhibit J, a report of 14 June 2011.[28]
[23]See exhibit D1
[24]CB 25
[25]CB 96
[26]CB 60
[27]CB 70
[28]CB 81
62 As to such diagnosis, Mr Monti laid particular stress on the use by Dr Aitken of the word “severe” to describe the disorder, see in particular[29] where such description is used in Exhibit D3 of the report of 3 March 2011. While of course, upon the principles expressed in Jayatilake,[30] such evidence is relevant to this Court’s overall consideration of evidence; however, such use of the term by a medical practitioner to describe a condition, does not answer the query before this Court.
[29]CB 33
[30]Supra
63 This Court needs to consider objectively all of the consequences of such condition, however described, to see if such satisfy the statutory test, as espoused upon by the authorities to which I have earlier referred.
64 As to such consequences, I refer again to the evidence of Mr Noonan which has already been rehearsed, he having confirmed the truthfulness of his tendered affidavits, exhibit B1 and exhibit B2.
65 Dr Aitken, in the report of 21 September 2010,[31] opined that Mr Noonan was:
[31]Exhibit D1; CB 26
(a) totally and permanently incapacitated for police work;
(b) incapacitated for full-time work in other fields, especially in fields dealing with the public, such as sales; and
(c) as to his capacity overall, the doctor assessed Mr Noonan to be very significantly affected.
66 In Dr Aitken’s update, in the report of July 2013, Exhibit D4,[32] he said the injury, that is, the Post-Traumatic Stress Disorder, had severely impacted Mr Noonan’s social, recreational and domestic activities. He has lost his marriage, his friends and his employment. As to the future, the doctor considered a moderately effective functioning was possible for Mr Noonan if he is subject to an effective treatment program; however, the doctor noted that, to date, such effective treatment program has been impossible due to Mr Noonan’s interstate travel in his employment.
[32]CB 51A
67 Mr Monti also relied upon the opinion of the treating psychologist, Mr Powles. In Mr Powles’ report of 6 July of this year,[33] Mr Powles – such based of course upon the history provided by Mr Noonan – opined in regard to the post-traumatic stress condition, that it makes “continuing employment in any field problematic” and such condition “is likely to result in constant job changes and unemployment as has been the norm up to the present time”, that such “condition” has led to Mr Noonan “being incapacitated for his pre-injury duties as a police officer and to being incapacitated for any other form of employment where managing stress and cognitive ability are a significant requirement for the job”.
[33]exhibit E2; CB 99
68 Further, Mr Monti relied upon the opinion of Dr Epstein[34] in a report given in June this year. Dr Epstein said that as a result of the Post-Traumatic Stress Disorder “Mr Noonan has been unable to return to his work with the police force, and has had difficulty working in any situations where he is placed under pressure because of his marked irritability”. Dr Epstein thought that this situation would continue indefinitely, and his diagnosis for improvement of Mr Noonan was poor.
[34]exhibit J; CB 81
69 The problem in assessing such opinions as against the evidence the Court has heard is the reality, as already demonstrated, of Mr Noonan’s work history, his social activity, his intellectual achievements and his relationship capacity.
70 I find that those realities which make up Mr Noonan’s current life are such that I cannot accept the opinions of Dr Aitken, Mr Powles or Dr Epstein as to the extent of the consequences of Mr Noonan’s Post-Traumatic Stress Disorder. To use Mr Jens’ phrase, such medical opinions beggar reality.
71 Albeit that they are medico-legal reports of 2010 and 2011, sought by the insurer and tendered by Mr Monti, I find the opinions of Dr Dharwadkar, a consultant psychiatrist, and Dr Prytula, psychiatrist, to be far more convincing and reflective of the life currently being led by Mr Noonan.
72 In Dr Dharwadkar’s report of 21 July 2010, being Exhibit G2,[35] the doctor said that Mr Noonan has a demonstrated capacity for alternative employment, and provided he undergoes treatment, could continue in his present job with no periods of incapacity.
[35]CB 63
73 It is important, of course, to remark on another reality: Mr Noonan has in fact continued in high-level employment, as I have described, without having any of the inpatient treatment recommended by Mr Aitken, albeit he has undergone counselling and been prescribed by Dr Aitken.
74 Further, in the report of Dr Prytula, of 5 November 2011,[36] the doctor said this: “Mr Noonan, at that date, was suffering some post-traumatic symptoms but he was working full time.”The doctor noted, residual traumatisation symptoms, and that Mr Noonan was just managing at work. However, despite Mr Noonan’s complaints, he found Mr Noonan, as at that date, not to be depressed; that in examining him and consulting with him, Mr Noonan made good eye contact; that he had no issues with understanding the meaning of the conversation; that his speech was fluent; that he was alert; that he had no issues with concentration; that he stated no cognitive impediment; that he showed no irritability or impatience; that he was calm, and that he understood all of the doctor’s questions. He said, by way of diagnosis, that Mr Noonan had residual Post-Traumatic Stress Disorder symptoms including bad dreams, and thought that Mr Noonan would benefit from treatment, to which he said Mr Noonan had been resistant to undertake because it would put him behind financially.
[36]exhibit H; CB 65-66
75 I find that those two opinions are much more aligned to the reality of Mr Noonan’s current lifestyle and capacity to perform at a high and demanding employment level.
76 I am not satisfied that the Post-Traumatic Stress Disorder was a cause of his marriage breakdown, as attested to by Mr Noonan. At any rate, as of today, he has been able, certainly since 2012, to re-establish an ongoing relationship, with which he says he is very happy, in that he has shifted into premises in Brighton with the lady he met on RSVP.
77 I further consider that the diagnosis of Post-Traumatic Stress Disorder to Mr Noonan was not only an epiphany, but the panacea to his long-term problems with alcohol and his admitted argumentative, violent and aggressive character traits.
78 I find the plaintiff has not satisfied the Court that the pain and suffering consequences of his Post-Traumatic Stress Disorder, albeit that such may be considerable and even substantial as felt by Mr Noonan, are, when viewed objectively, very considerable and certainly I find that such consequences are not “severe”.
79 I therefore dismiss the application.
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