Oehme v VWA
[2025] VCC 1653
•14 November 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04838
| BRENDON OEHME | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHOIRTY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-13 March 2025, 18 September 2025 | |
DATE OF JUDGMENT: | 14 November 2025 | |
CASE MAY BE CITED AS: | Oehme v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1653 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Mental impairment – whether severe – credit – economic loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; TAC v Katanas [2017] HCA 32.
Judgment: Application granted both heads
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC Mr C Madder | Arnold Thomas & Becker |
| For the Defendant | Ms G Cooper | Wisewould Mahony |
HIS HONOUR:
Introduction
1Pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate pursuant to paragraph (c) of the definition of serious injury, to permit him to commence common law proceedings to recover damages for both pain and suffering and economic loss.
2The plaintiff was represented by Mr Brett KC and Mr Madder of counsel. The defendant was represented by Ms Cooper of counsel.
3The plaintiff is 67 years of age. He alleges that he suffered a mental injury on 15 October 2020 while in the course of his employment.
Particulars of Injury
4The particulars of injury filed in support of the application are expressed as follows:
For the purpose of establishing that the Plaintiff has a serious injury, he relies upon section 325(1)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 of the definition of serious injury, and in particular; Psychological injury, including post-traumatic stress disorder.
The claimed impairments result from injury as follows:
Mind
Relevant Legal Principles – Serious Injury
5The following statements represent settled law. The Court must not grant leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[1]
[1]Section 335(5) of the Act.
6The definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…
7To establish a serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[2]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[4]
[2]Section 327 of the Act; see also Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”).
[3]Barwon Spinners (2005) 14 VR 622, 638 [33].
[4]Section 325(2)(c) of the Act.
8The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
9The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[5]
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
10In determining the “consequences” of the injury, the Court is required to consider them as they affect this plaintiff, but viewed objectively, arising from the injury.
11In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[6]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[6]Section 325(2)(j) of the Act.
[7]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
12Separately, when a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he must establish at the date of the decision is if:
(a) he has sustained a loss of earning capacity of 40 per cent or more; and
(b) he will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
13The plaintiff made two affidavits in support of his application for the grant of a serious injury certificate under paragraph (c) of the definition of serious injury and from which the following narrative is derived.
14The plaintiff says he sustained a psychiatric injury during the course of his employment with Victoria Police. On or around 15 October 2020 he was involved in an interaction with a co-worker, the circumstances of which was described in great detail in the plaintiff’s first affidavit. The fact of the injury and the circumstances that surrounded it was not the subject of challenge. It is sufficient to say that it appears that the plaintiff suffered PTSD caused by the work injury.
15Apart from unrelated physical conditions, there is no pre injury psychological history or psychiatric treatment although it seems that in March and September 2019, the plaintiff saw his GP for insomnia and for which he was prescribed melatonin in a very small dose and had two counselling sessions for work stress.
The Documentary Evidence
16The plaintiff relied on the following evidence:
(a) Two affidavits of the plaintiff dated 17 April 2023 and 17 February 2025;[8]
(b) Two affidavits of Mr Duangjai Chansri dated 17 February 2025 and 11 March 2025;[9]
(c) Two reports of Dr Justin Lewis dated 1 October 2024 and 11 February 2025;[10]
(d) Two reports of Dr Chanathani Ihavalagan dated 6 May 2021 and 11 May 2021;[11]
(e) Two reports of Jomimi Cheong dated 25 October 2021 and 27 April 2022;[12]
(f) Report of Dr Lynette Yong dated 6 May 2021;[13]
(g) Letter from Victoria Police regarding notice of intention to retire due to ill health dated 27 May 2022;[14]
(h) Three reports of Ms Fiona Dickie dated 14 July 2022, 2 November 2022 and 11 March 2025;[15]
(i) Report of Dr Zev Barr dated 6 March 2025.[16]
[8]Exhibit P1, Plaintiff Court Book (“PCB”) 14-30.
[9]Exhibit P2, PCB 31-34, 130-131.
[10]Exhibit P3, PCB 35-49.
[11]Exhibit P4, PCB 50-51, 53-54.
[12]Exhibit P5, PCB 56-65.
[13]Exhibit P6, PCB 52.
[14]Exhibit P7, PCB 66-67.
[15]Exhibit P8, PCB 68-76, 127-129.
[16]Exhibit P9, PCB 77-80.
17The defendant relied on the following evidence:
(a) Affidavit of Ms Rhiannon Everson-Cross dated 12 February 2025;[17]
[17]Exhibit D1, Defendant Court Book (“DCB”) 7-13.
(b) Report of Dr Craig Keighley dated 23 June 2014;[18]
(c) Report of Mr Paul Gilmore dated 7 May 2018;[19]
(d) Report of Associate Professor Sree Appu dated 24 March 2020;[20]
(e) Care Services Assessment by Ms Nikki Krainz dared 14 June 2023;[21]
(f) New View Psychology Clinical File;[22]
(g) Chelsea Arcade Medical Clinical Notes;[23]
(h) Surveillance Footage of 6 December 2024 and 18 February 2025;[24]
(i) Bank Statements from 30 March 2024 to 28 February 2025;[25]
(j) Two reports of Associate Professor Peter Doherty dated 15 July 2023 and 1 November 2024;[26]
(k) Clinical Notes of Perpetual Wellness Counselling.[27]
[18]Exhibit D2, DCB 25-26.
[19]Exhibit D3, DCB 31.
[20]Exhibit D4, DCB 32.
[21]Exhibit D5, DCB 37.
[22]Exhibit D6, DCB 43-50.
[23]Exhibit D7, DCB 55-95.
[24]Exhibit D8.
[25]Exhibit D9, DCB 374-388.
[26]Exhibit D10, PCB 81-104
[27]Exhibit D11, DCB 108-321, 324-373.
18I have read and had regard to the affidavit evidence, cross-examination and re-examination of the plaintiff, together with the evidence and cross examination of the plaintiff’s wife and the medical and other evidence relied on by the parties. In the reasons that follow, I have referred to such of the evidence that has proved necessary to explain the basis of the decision I have reached.
The Incident
19The plaintiff deposed to being assaulted by a subordinate PSO. The incident occurred at a meeting between the plaintiff and another PSO when the plaintiff advised that person of his impending firearm suspension due to behavioural issues identified by management.
20The plaintiff finished a shift that day and returned home but had significant difficulty sleeping that night as he felt shaken following the incident. He returned to work the following day, Friday 16 October 2020, and discussed the incident with his Senior Sergeant. The plaintiff said he did not feel that he was coping well after the incident and so went home early that afternoon and he explained what had occurred to his wife.
21The plaintiff said he took three weeks of planned leave following the completion of his shift on 16 October 2020.
22During his period of leave the plaintiff said that he struggled with anxiety, insomnia, nightmares and flashbacks of his work encounter. He slept downstairs in the guest bedroom out of a fear he harboured, of a need to get out the front door of his home because he was worried that the PSO would hunt him down. He said he struggled to leave his home. He said he took a further six weeks of personal leave.
23Following the period of further leave the plaintiff returned to work and performed his usual duties on modified hours consisting of six hour shifts, five days a week. The plaintiff said he felt ostracised and excluded on his return to work.
24In January 2021, the plaintiff commenced annual leave during which he intended to work at the Australian Open for two weeks but he only worked five days before contracting Covid and was required to isolate.
25The plaintiff has not returned to Victoria Police since January 2021.
26As to his medical treatment the plaintiff consulted with his GP Dr Bidwell at the Chelsea Arcade Medical Centre on 20 October 2020 and was prescribed Zolpidiem 20mg to help manage insomnia. He was also referred to Bayside Counselling and Consulting but he said that he was unable to obtain an appointment because of Covid.
27He was referred to Acacia Connection, an internal employee mental health assistance program. In February 2021, he came under the care of Fiona Dickie, a mental health social worker at Perpetual Wellness Counselling Service and whom he commenced seeing on a weekly basis.
28The plaintiff deposed that on 25 April 2021, he was taken by ambulance to Jesse MacPherson Private Hospital, and was diagnosed with a stomach ulcer which he attributed to stress.
29In May 2021, the plaintiff was referred to Edithvale Consulting Clinic and saw Dr Peter Farnbach, a psychiatrist. However, he said he was unable to secure appointments because of delays stemming from Covid and so he returned to treatment with Ms Dickie, whom he said he continues to see on a on a weekly basis. He consults with his GP, Dr Barr every month for certificates of capacity. He takes Mirtazapine on an as needs basis.
30Addressing his pain and suffering and loss of enjoyment of life consequences, the plaintiff said he ruminates about the work incident regularly. He derives little pleasure from life. He is never relaxed. At home he is in a constant state of hypervigilance. He checks the front door for intruders. He has nightmares two to three times per week and these have continued. Since the work incident he has slept in the downstairs guest bedroom so as to be close to the front door.
31The plaintiff described his daily routine. He said that after waking of a day he drops his son at school and returns home. He said he sometimes takes food to his elderly mother who lived alone but has since moved into the plaintiff’s home. She suffers dementia.
32He said he avoids the shops and engaging with people unless necessary.
33He said he used to work as a supervisor at crowd events at either Rod Laver Arena and AAMI Park and since the work incident he tried to return to work at Rod Laver but he broke down as a result of being subject to patron aggression.
34The plaintiff described his social life as diminished, and said he has lost contact with most of his friends who were police, and that he has no interest in socialising.
35The plaintiff said that his relationship with his wife has deteriorated.
36Prior to the incident he said he enjoyed renovating and improving his home. He was undertaking a bathroom renovation when the work incident occurred and he says that his motivation to carry on with such activities dissipated and the bathroom languished in an unfinished state.
37He said his wife was attending to the gardening and cleaning of the home.
38The plaintiff deposed that his alcohol intake increased since the incident and he was consuming 3 to 4 standard drinks in the evening and sometimes more on the weekend.
Second Affidavit
39In his second affidavit the plaintiff said that he is no longer taking medication because it made him feel worse.
40He said he feels better, at least for a short period of time, after seeing Ms Dickie.
41The plaintiff said he retires to bed at 11:00 pm but is awake at 2:00 am and that it can take up three to four hours before he falls back to sleep and that he rises at about 6:30 am to help his son and organise him for school. He said that he is tired during the course of the day.
42He said that he continues to sleep downstairs. He said his intimate relationship with his wife is non-existent.
43He said he drinks every day sometimes beer sometimes red wine. He will have three stubbies at a minimum of a night or get some cheap red wine and drink that.
Loss of Earnings
44The plaintiff commenced working for Victoria Police in 1991. In 2020 he earned $87,858.00. He was officially terminated for ill-health on 22 December 2022. He said that due to having a young son, he intended to work well into his 70s to support his family.
The Plaintiff’s Medical Evidence
Dr Justin Lewis, Consultant Psychiatrist
45Dr Justin Lewis is a consultant psychiatrist and at the request of the plaintiff’s lawyers prepared a medical report dated 1 October 2024. Dr Lewis saw the plaintiff for examination on 1 October 2024. Dr Lewis related the events of the incident involving the plaintiff and co-worker. Dr Lewis described the plaintiff’s current symptoms that comprised a flat mood, poor motivation, disturbed sleep and lowered energy. He had recurrent distress and intrusive memories of the workplace incident, was agoraphobic, possessed an exaggerated startle response, and was uncharacteristically irritable and angry.
46The plaintiff told Mr Lewis that he drinks two alcoholic beverages per evening. I note that this is a level of consumption considerably less than the plaintiff’s account of drinking he referred to in his first affidavit.
47Dr Lewis diagnosed the plaintiff with PTSD. Dr Lewis said he understood that the plaintiff had been psychologically well immediately prior to 15 October 2020 incident.
48Dr Lewis considered the plaintiff to be completely incapacitated for both preinjury duties and alternative duties as a result of severe generalised anxiety, markedly reduced stress tolerance, agoraphobia, sleep disturbance, cognitive difficulties and traumatisation symptoms.
49Dr Lewis recommended a referral for the plaintiff to a consultant psychiatrist for initiation of psychotropic medication and that strong consideration be given to the introduction of prazosin to reduce the intensity of the plaintiff’s work related nightmares. He also recommended that strong consideration should be given to the plaintiff being referred to a psychologist for trauma focused psychological therapy.
50In a supplementary report dated 11 February 2025, Dr Lewis expressed the opinion that the plaintiff’s psychiatric condition could be regarded as permanent with the plaintiff’s traumatisation symptoms chronic and well entrenched.
Ms Fiona Dickie, Psychotherapist and Accredited Mental Health Social Worker
51Ms Dickie is a sole practitioner at Perpetual Wellness and is a psychotherapist by training and qualification. She is a practitioner of EMDR (eye movement desensitisation and reprocessing). She said she commenced seeing the plaintiff in 2021 and he has been attending on her weekly.
52Ms Dickie provided three reports. The first report is dated 14 July 2022. She said that the plaintiff had been seeing her for weekly counselling and support since 23 February 2021. She said she was unaware of a past history of psychiatric illness. Ms Dickie said that the account given to her by the plaintiff together with her mental state examination of him are consistent with a diagnosis of PTSD. She regarded the plaintiff’s prognosis as poor. She said that as the plaintiff was close to retirement age, had limited training or alternative employment skills and lacked motivation and perceived his work environment as hostile, a full return to work for preinjury duties was unlikely.
53Ms Dickie’s second report dated 2 November 2022, consisted of a letter in which she addressed what had been mooted as a possible referral of the plaintiff to Austin PTSD but she noted that such a referral had not progressed as the plaintiff “is responding to therapy by demonstrating great capacity for thought and reflection and his condition would be considered stable”.
54Ms Dickie’s third report dated 11 March 2025, provided a response to several questions posed to her by the plaintiff’s solicitors. Ms Dickie noted that beyond a diagnosis of PTSD the plaintiff’s emotional distress had resulted in associated sleep and mood disturbances which contributed to his overall condition. Ms Dickie noted that the plaintiff continued to see her for weekly treatment sessions which she deemed necessary due to the severity of his symptoms and the ongoing impact on his daily functioning. Ms Dickie noted that the plaintiff continued to suffer from a range of symptoms including rumination and intrusive thoughts, sleep disturbance, mood disturbance and irritability, and functional impairment. Ms Dickie said that the consequences she outlined in her report dated 14 July 2022 remained the same as there has been no significant improvement in the plaintiff’s condition since then.
Cross-Examination
55Ms Dickie was required by the defendant for cross examination. Not long into her cross-examination, a problem arose in relation to Ms Dickie’s records as a result of Ms Cooper pointing to the existence of two versions of a clinical note of 11 September 2024, one of which was handwritten and the other typed, but with the latter note recording greater detail than the former.
56A lengthy adjournment followed during the course of which both Ms Dickie’s handwritten and program generated notes were obtained and provided to the defendant.
57On resumption of the hearing, and the cross-examination of Ms Dickie, she was taken by Ms Cooper to her first report dated 14 July 2022 in which she recorded that the plaintiff is the primary carer for his mother who was suffering dementia. Ms Dickie also recorded of the plaintiff that “on this occasion, he said he was continuously disturbed through the night and he wakes during the night, feeling sweaty, sobbing and shaking”. Her report included the plaintiff telling her that he had not been going out or doing much. He complained of having only little motivation, a lack of interest and an insufficient amount of sleep due to distressing nightmares. Ms Dickie recorded that the plaintiff “struggled to function during the daytime in his emotionally depleted state”. In her report, she said that the plaintiff would continue to benefit from psychotherapy and psychopharmacology to assist with his sleep and in the future he may benefit from any EMDR and be considered for the Austin PTSD program.
58Ms Dickie told Ms Cooper that the plaintiff was not receptive to attending the Austin program. Ms Dickie explained that at that time “because of the focus of the workplace and what was happening and, of course, the secondary gain, the client, at that particular time, wasn’t receptive to going to the Austin”. Ms Dickie said that a referral to the Austin had been raised with the plaintiff and when asked by Ms Cooper if the plaintiff was “open to it”, she said “No”.[28]
[28]Transcript (“T”) 125, Line (“L”) 3-5.
59Ms Cooper directed Ms Dickie to her clinical record dated 6 August 2023 that recorded that she was requested by the plaintiff to place EMDR on hold despite that therapy appearing to Ms Dickie to be working well.[29] In the same clinical note Ms Dickie recorded that the plaintiff was busy in his bathroom renovation. In a note of session conducted on 17 January 2024, Ms Dickie recorded that the plaintiff had caught up with an ex-colleague and had spoken with him about work and that he had not been upset by the conversation. Ms Dickie agreed this was a positive step forward.[30] The note also related a series of problems the plaintiff had been encountering with the local council concerning the subdivision of land in Dromana, and a concern about home invasions in Chelsea, and his mother’s cognitive decline including her verbally assaulting his son Jai. In a note dated 24 January 2024 Ms Dickie recorded the plaintiff having said that he was embracing his role as a carer.
[29]T125, L11-31.
[30]T127, L11-21.
60Ms Dickie agreed that the entries to which she was taken by Ms Cooper identified a significant improvement in the plaintiff’s presentation and outlook compared to when he commenced attendance on her in July 2022.[31]
[31]T127, L30-31; T128, L1-3.
61When Ms Dickie was asked by Ms Cooper if the plaintiff’s reporting to her of nightmares had reduced since her treatment commenced in July 2022, she said it had fluctuated. She said that there had been occasions when the plaintiff would attend in a physically agitated manner and report that he had experienced nightmares. She said it appeared that his nightmares increased as he came closer to the need to revisit the experience and that attending court for the purposes of his litigation “is a major trigger”.[32]
[32]T128, L17-19.
62Ms Cooper put the attendance records from 10 sessions conducted in the period of 6 November 2024 to 5 March 2025 to Ms Dickie. Ms Cooper suggested to Ms Dickie that there were “one or two” references to nightmares but no mention of a flashback, whereas there was considerable focus on his family difficulties including issues with his mother and his son as well as his sister and brother. Ms Dickie agreed.[33] When Ms Cooper put to Ms Dickie that the plaintiff’s evidence had been that he no longer remembers his nightmares she said she was unaware of this.
[33]T129, L2-4.
63Mr Dickie said she knew of the plaintiff’s participation in golf. She regarded his golf as beneficial. She said she understood that he lives across the road from the shops making food purchases straight forward. She was unaware of him attending outlets such as Bunnings, Costco and Aldi. She said she is aware that he takes his son to school and that he is renovating his mother’s house and had been considering homeschooling for his son. Ms Cooper suggested to Ms Dickie that taking all of these matters into consideration that overall the plaintiff was in a much better place than he had been in July 2022. Ms Dickie disagreed.[34]
[34]T129, L23-25.
Dr Chanathani Ihavalagan
64Dr Ihavalagan provided two referral reports dated 6 May 2021 and 11 May 2021.
65Dr Ihavalagan first made a referral of the plaintiff to Dr Lynette Yong who informed him that she does not treat WorkCover patients. Dr Ihavalagan then referred the plaintiff to see Dr Peter Farnbach.
66In his referral, Dr Ihavalagan noted the ongoing concerns of the plaintiff with PTSD including nightmares and insomnia, changes in his sleeping arrangements, weekly psychologist visits with a good response and the need for a psychiatric review.
67Dr Ihavalagan also advised the plaintiff to increase Mirtazapine, optimise self-care and exercise and nutrition.
Mr Jomimi Cheong
68Dr Jomimi Cheong, Police Medical Officer, provided two reports dated 25 October 2021 and 27 April 2022.
69Dr Cheong was involved in reviewing the plaintiff’s fitness for work with the Victoria Police Protective Services Unit in relation to anxiety/depression with possible PTSD.
70In his first report, Dr Cheong concluded that the plaintiff remained currently unfit for policing work and had reservations about his ability to return to policing or operational duties. He reported that the plaintiff told him that “he has a young child and financially would like to continue working”.[35]
[35] Exhibit 5, PCB 56.
71Dr Cheong noted that an alternative to a return to work would potentially be a trial involving a gradual return to non-operational duties in an administrative role.
72The plaintiff reported that he was taking Mirtazapine 30mg n, Crestor and Cartia.
73Dr Cheong reported that the plaintiff had a pending appointment with a psychiatrist and that he was attending a psychologist on a weekly basis and his GP on a monthly basis.
74The plaintiff reported his physical function was normal. He reported poor broken sleep with nightmares, weight gain and was still experiencing flashbacks.
75The plaintiff denied any current or previous thoughts or plans of self harm or harm to others.
76The plaintiffs alcohol consumption was reported as relatively high.
77The plaintiff reported a number of medical conditions including stress ulcers, a fall with head strike/concussion in April 2021, high cholesterol and AMI in 2017.
78In his second report, Dr Cheong issued a final medical advice that the plaintiff was unfit for all duties with Victoria Police.
Letter from Victoria Police regarding notice of intention to retire due to ill health dated 27 May 2022
79A letter addressed to the plaintiff from Tara Simmons, Workplace Relations Lead of Victoria Police, referred to the appointment the plaintiff had with Dr Cheong where final medical advice was issued dated 27 April 2022, that the plaintiff was unfit for all duties in Victoria Police. The letter addressed the intention to retire the plaintiff for ill health.
Dr Zev Barr
80Dr Barr is a GP who provided a report dated 6 March 2025 at the request of the plaintiff’s solicitors.
81Dr Barr saw the plaintiff on 7 May 2021 following the work incident on 15 October 2020 and he found the plaintiff was deeply troubled and not coping, and was suffering from PTSD, anxiety and depression.
82The plaintiff was taking Mirtazapine, an anti-depressant without any meaningful response and was attending psychology sessions. Dr Barr saw the plaintiff on 25 May 2021 and 15 July 2021 for a review and found that he was no better and referred him to see Dr Robert Kruk, psychiatrist. Dr Barr saw the plaintiff again on 4 November 2021 and said he had been having trouble getting an appointment with Dr Kruk and hence he provided an open referral but that did not eventuate.
83Dr Barr continued management of the plaintiff throughout 2022, 2023 and 2024. On 6 August 2023, Dr Barr found the plaintiff continued to be stressed and was barley coping at times because of pressure and feeling threatened. The plaintiff reported a restricted lifestyle and at times felt very depressed.
84On the plaintiff’s last visit to Dr Barr on 3 March 2025, the plaintiff’s progress remained stalled and he was markedly stressed. Dr Barr noted that the plaintiff was barely coping and at times was having occasional panic attacks and suicidal thoughts.
85Dr Barr reported that the plaintiff has only very marginally improved since his initial consultation on 7 May 2021. He said he did not think that the plaintiff was fit for any work and that further management was recommended pending availability and funding for it.
The Defendant’s Evidence
Dr Craig Keighley
86The defendant relied upon the report of Dr Craig Keighley, an Interventional Cardiologist dated 23 June 2014.
87Dr Keighley treated the plaintiff for coronary artery disease following his inferior ST elevation myocardial infarction on 21 May 2014. The plaintiff showed satisfactory progress following his infarction and right coronary stenting.
Mr Paul Gilmore
88Mr Paul Gilmore is a Consultant Urologist. In a report dated 7 May 2018, Mr Gilmore said he was treating the plaintiff for prostate cancer and had provided him tamsulosin tablets. The plaintiff had experienced a loss of sex drive and libido and which he said is not a side effect of that medication. Mr Gilmore suggested possible avenues to assist the plaintiff in this regard.
Associate Professor Sree Appu
89Associate Professor Appu is a Urologist who made a report dated 24 March 2020.
90Associate Professor Appu said he saw the plaintiff because he had decided to consider active treatment for his prostate cancer and so had the risks explained to him of incontinence, erectile dysfunction and infertility. He said the plaintiff decided not to proceed with any active treatment unless his condition progressed.
Associate Professor Peter Doherty
91The defendant relied on reports from the psychiatrist, Associate Professor Doherty. Associate Professor Doherty undertook a mental state examination of the plaintiff. Associate Professor Doherty provided two reports dated 15 July 2023 and 1 November 2024.[36]
[36]Exhibit D10.
92Associate Professor Doherty said he believed that the plaintiff continued to overstate the significance of work as a contributor to his deteriorated mental health and he minimised the effect of family and personal issues and any pre-existing problems. He observed that at the time of writing, four years had passed since the incident at work and that the plaintiff’s array and intensity of symptoms were not in keeping with the natural history of the traumatising event in the context of the treatment given.
93Associate Professor Doherty said that plaintiff expressed no interest in further treatment. He was taking antidepressant medication intermittently but for its sedative effect rather than for the treatment of his depression. He thought the plaintiff was being ineffectively treated and he recommended medication to improve his sleep, reduce anxiety and the effects of hyperarousal. He recommended that the plaintiff receive treatment from a psychiatrist to coordinate his care and prescribe medication.
Rhiannon Everson-Cross
94Ms Rhiannon Everson-Cross, Workforce Reporting & Analysis Unit Manager at Victoria Police, affirmed an Affidavit dated 12 February 2025.
95Ms Everson-Cross deposed that when PSO positions are terminated, the date that this occurs and the rank held at the time is recorded in the Human Resources System which she has access to.
96Ms Everson-Cross said that she accessed the data and calculated the average age of PSOs at the date the position was terminated between 25 April 2010 and 31 October 2024 as follows:
Rank/Position
Average Age at Separation
PSO
34.27
PSO First Class
44.76
PSO Senior Sergenat
61.50
PSO Senior
44.61
PSO Sergeant
52.00
PSO Supervisor
50.50
Cross-Examination of the Plaintiff
97A very substantial aspect of the defence centred on a consideration of the true extent of the plaintiff’s retreat from, and reduced participation in, various aspects of his former life, and in particular, his capacity to frequently participate in the pursuit of golf. It would not be an overstatement to describe the plaintiff as a golf “tragic”. The plaintiff said that golf has long been a part of his life.
98Ms Cooper directed the plaintiff to his affidavit sworn on 17 February 2025 where at paragraph 13 he deposed:
'My counsellor Fiona says that I should try and do something so I had a crack at playing golf. But one of the people I was playing with said that I fell apart under pressure while I was playing. He was sort of laughing at me while I was putting. I could not go back. I feel like something has gone wrong with my brain’.
99The plaintiff said that by 17 February 2025 when he made his first affidavit he had formed the view that he could not go back to golf.[37] When asked by Ms Cooper if he had only played on one occasion since he made his February 2025 affidavit, the plaintiff said that he had played “quite a few times”.[38] Indeed, the day after making that affidavit, the plaintiff was back at golf although, as he put it, “I might have gone down to hit some balls”.[39]
[37]T12, L8-9.
[38]T12, L 4-5.
[39]T12, L 14-17.
100The plaintiff had played to him surveillance from 18 February 2025. The footage depicted him at the Rossdale Golf Course where he was observed to be in attendance for approximately 4 ½ hours over which time he played 18 holes of golf in the apparent company of another golfer but whom he described as a “random”.[40] The plaintiff characterised his observed action in removing the flag from the hole as merely that of one golfer’s courtesy to another and not of them playing golf together.[41]
[40]T13, L9-10.
[41]T13, L14-15.
101Ms Cooper put to the plaintiff that he had played golf regularly over the last 12 months and on occasions to the extent of twice a week. The plaintiff said that some days he will just hit balls but on other days he will play rounds of golf. He said if he did not do this then “the options are to sit at home … and stare at the wall”.[42] The plaintiff agreed that he had failed to mention in his affidavit the regularity of his golf but he denied it had been a deliberate choice on his part to do so.[43]
[42]T16, L3-6.
[43]T16, L12-15.
102Ms Cooper next directed the plaintiff to a spreadsheet that recorded his credit card transactions. These included:
· 3 April 2024 Rossdale Golf Club;
· 7 April 2024 Cheslea Heights Football Club where the plaintiff said he had gone to watch a football match;
· 12 April 2024 Rossdale Golf Club;
· 14 April 2024 Rossdale Golf Club;
· 15 April 2024 Devil Bend Golf Club (that the plaintiff said is located on the Mornington Peninsula);
· The plaintiff was asked about receipts for purchases from Bunnings on 20 April 2024 but he was unable to say what they comprised.[44]
· On 5 May 2024 the plaintiff attended the Settlers Run Golf Club in Cranbourne where he agreed he played 18 holes.
· On 7 May 2024 the plaintiff attended at Rossdale Golf Club.
· On 10 May 2024 a payment was recorded for a Yamaha Golf Cart that the plaintiff agreed he used when playing 18 rounds of golf.[45]
· On 10 May 2024 the plaintiff played golf at Rossdale Golf Club and he thought he spent $70 on a golf shirt.[46]
[44]T18, L12-13.
[45]T19, L 8-13.
[46]T19, L14-17.
103Ms Cooper suggested to the plaintiff that despite his evidence that he was keen to play golf. He said, “I was told it would help me, it would help my PTSD”,[47] but he agreed he had not told Dr Lewis that golf helped him. Ms Cooper put to him that in his affidavit he had referred to only the one occasion of playing golf on 17 February 2024, which had resulted in him feeling under pressure and yet on each of the three days preceding deposing to that statement he had played golf at Rossdale and had also played the day after he had deposed that he could not go back to it. The plaintiff said, “That’s how I was feeling that day”.[48]
[47]T19, L18-20.
[48]T20, L11-13.
104Ms Cooper questioned the plaintiff over further financial transactions that included:
· 17 May 2024 attendance at Rossdale Golf Club;
· 24 May 2024 attendance at Rossdale Golf Club;
· 28 May 2024 attendance at Rossdale Golf Club;
· 7 June 2024 purchases from Bunnings;
· 12 June 2024 Village Cinema Southland. The plaintiff could not recall having attended the cinema but said he was always being put under pressure by his wife to do something with his son.[49]
[49]T21, L25-31.
· 14 June 2024 Village Southland. The plaintiff had no recollection of being at the cinema. He said he does not regularly go to the movies but that his wife takes their son.[50]
[50]T22, L5-11.
· Ms Cooper referred the plaintiff to various entries throughout July and August 2024 that record purchases at Bunnings and an attendance at Scienceworks in Spotswood where the plaintiff said he took his son.
· On 9 August 2024 the plaintiff played golf at Rossdale Golf Club.
· On 10 August 2024 the plaintiff was recorded making purchases at Bunnings.
· On 30 August 2024 the plaintiff played golf at Rossdale Golf Club.
· On 6 September 2024 the plaintiff played golf at Rossdale Golf Club.
· On 8 September 2024 the plaintiff played golf at Eagle Ridge Golf Club and played 18 holes.
· On 12 September 2024 the plaintiff played golf at Rossdale Golf Club
· On 17 September 2024 the plaintiff attended an amateur football club match at the Frankston Football Club.
· On 19 September 2024 the plaintiff made purchases from Bunnings.
· On 20 September 2024 the plaintiff played golf at Rossdale Golf Club.
· On 21 September 2024 the plaintiff dined at La Porchetta.
· On 27 September 2024 the plaintiff made a purchase at Stewarts Plaster that he said may have been related to the work on his bathroom.[51] As well on that date the plaintiff also was at Rossdale Golf Club playing golf.
[51]T25, L20-29.
· On 4 October 2024 the plaintiff played golf at Rossdale Golf Club.
· On 11 October 2024 the plaintiff played golf at Rossdale Golf Club.
· There were further purchases made at Bunnings by the plaintiff that he agreed were likely for items required for the bathroom works that were eventually done.[52]
[52]T27, L21-24.
· On 14 October 2024 the plaintiff was at Rossdale Golf Club playing golf.
· On 18 October 2024 the plaintiff was at Rossdale Golf Club playing golf.
· On 20 October 2024 the plaintiff made purchases at National Tiles.
· On 27 October 2024 the plaintiff appears to have played golf at the Dunes Golf Club in Rye where he played 18 holes.
· On 28 October 2024 the plaintiff was at Rossdale Golf Club playing golf.
· On 30 October 2024 the plaintiff played golf at the Rossdale Golf Club.
· On 8 November 2024 the plaintiff played golf at the Rossdale Golf Club.
· In November 2024 the plaintiff travelled to Thailand. The plaintiff agreed that he had not mentioned that travel in his affidavit and said he did not think it was relevant to do so.[53] The plaintiff’s wife is Thai and the plaintiff said for their son’s 8th birthday they went to his homeland and they visited Chang Mai and Bangkok.[54]
· On 6 December 2024, 17 December 2024 and 30 December 2024 the plaintiff played gold at Rossdale Golf Club.
· On 3, 10, 20, 24, 30 and 31 January 2025 the plaintiff played golf at Rossdale Golf Club.
· On 7, 10, 13, 14, 16, 21, 24 and 28 February 2024 the plaintiff played golf at Rossdale Golf Club.
· The plaintiff said that he did not always play rounds of golf and that “sometimes I just go down there and practice … I get a bucket of balls and hit the bucket of balls … It’s a place where I can be myself, I don’t have to be with anyone, I can just hit the bucket of ball and then go and have a couple of beers”. [55]
[53]T29, L6-8.
[54]T29, L9-23.
[55]T31, L27-31; T32, L1-2.
105The plaintiff was taken to some matters recorded by Dr Lewis in his October 2024 report. The plaintiff agreed he told Dr Lewis that:
'… he's under the care of a clinical psychologist. He stated that his psychologist encouraged him to engage in activities to distract himself from his persistent anxiety symptoms'.
106Dr Lewis recorded the plaintiff having said that he had “tried my hand at golf but it made things worse”. The plaintiff agreed that he would have said this to Dr Lewis because “golf has just made things worse because it’s made me – it’s a reminder that I can’t play under any kind of pressure whatsoever”.[56] When Ms Cooper reminded the plaintiff that he had not told Dr Lewis how regularly he continued to play golf he said it was because “there’s a part of me that I don’t want this to – I don’t want this to destroy me”.[57]
[56]T35, L24-28.
[57]T35, L29-31.
107Ms Cooper referred the plaintiff to the comment by Dr Lewis that he said that he “rarely leaves the house in the absence of his wife”. The plaintiff agreed he gave that account of himself to Dr Lewis.
108The plaintiff denied Ms Cooper’s proposition that he was out and about frequently. The plaintiff suggested that the cost entries to which he had been directed by Ms Cooper did not always identify the time of purchase. He said that sometimes he will go to Bunnings or Officeworks at night time because he does not want to be seen as cantankerous around his son at home.
109The plaintiff said his purchase of a golf cart was connected to his disorder because its use allows him to isolate under a plastic zip cover as opposed to being required to walk the course with other players.[58] However, he also said that he was not anxious “with these other golfing guys, I’m not anxious about those … but I don’t want to be best buddies as everybody else down at the golf club, they’re all buddies with each other. I’m not in that situation at all”.[59]
[58]T39, L11-18.
[59]T40, L7-11.
110Ms Cooper asked the plaintiff if he could expand on the note made by Ms Dickie in August 2023 that he was “Busy in his bathroom renovation. Brendon said he has done course in the building trade”. The plaintiff maintained that he had only been involved to the extent of buying some plaster or tiles and he said, “It’s not difficult to do”.[60] However, the plaintiff said the tiling and plastering had been done by a man named “Lidz”.[61]
[60]T43, L13-16.
[61]T43, L19-21.
111Ms Cooper directed the plaintiff to another note of entry made by Ms Dickie dated 20 September 2023 that referred to the school holidays and to him looking after his son during that time.[62] The note recorded the plaintiff as very busy and needing to carry “tiles upstairs, running around with bathroom renovations”.[63] Despite accepting that he would have always required a tiler because he lacked the requisite skills, the plaintiff said he could have done “the other stuff”.[64]
[62]T43, L25-27.
[63]Exhibit D11, DCB 253.
[64]T44, L17-21.
112The plaintiff said that despite previously entertaining plans to subdivide another property he owned in Safety beach, because of zoning and council difficulties, he instead sold the property and bought his mother’s home so she would have sufficient money for full time aged care at the appropriate time. The plaintiff’s mother is presently living with the plaintiff and his wife.
113Ms Cooper directed the plaintiff to a Carer Services Assessment dated 14 June 2023 undertaken by a Nicky Crane from Monash Health. The assessment included that, “Brendon is the primary carer for his mother Dawn”. The plaintiff said he did not recall making that statement. The assessment also said that “Brendon explained to the writer that he supports Dawn with preparing meals, medication prompting, transport to medical appointments and into the community, emotional support, housework and coordinating her care'. The plaintiff said he doubted he would have said this to the assessor.[65] He said he would not have described himself as providing his mother with emotional support and he had he ever done housework for his mother. As for meals, the plaintiff said the extent of it consisted of him buying her soup and heating it up for his mother. He said he would check his mother’s blister medicine packs to ensure she was keeping up with her medications and he would take her to medical appointments as required although he said she does not attend the doctor often.[66] He said he would take his mother out for a coffee perhaps once a month. He said an external care provided attends to shower his mother a couple of times a week and that has been so since she moved in with the plaintiff, his wife and son. He said that if in June 2023 he had been described as his mother’s carer that is not the case nowadays.[67]
[65]T47, L26-31.
[66]T48, L8-15.
[67]T49, L24-31; T50, L1-3.
114Ms Cooper directed the plaintiff to a further note from Ms Dickie dated 24 January 2024, who recorded that, “Brendon embracing his role of carer”. The plaintiff did not suggest the note was inaccurate.[68]
[68]T51, L2-4.
115The plaintiff described a series of unfortunate effects that his mother’s cognitive decline has had on the family dynamic including his concern at leaving his son alone in her company because of her having been being rude to his wife because of her nationality. The plaintiff said that when he travelled to Thailand it was necessary to place his mother into aged care for three weeks which he organised.
116Ms Cooper questioned the plaintiff about a family holiday to Sydney in May 2023 and another trip to the Gold Coast.
117The plaintiff said he walks along the beach at Chelsea near his home of a morning or of an evening but only occasionally. He said he may take his mother’s dog for a quick walk.[69] He said his wife takes the dog out of a morning,[70] and when she is unable to do so, he will. The plaintiff said he is not a beach person.[71]
[69]T55, L21-27.
[70]T56, L4-6.
[71]T57, L10-12.
118The plaintiff testified to his separate domestic living and eating arrangements. He said that he “lives downstairs so most of the time I just eat dinner downstairs”.[72] The plaintiff said he didn’t know why it has turned out this way but that, “It's just not like a family sitting down together”.[73] He then said that this was a phenomenon that has developed most nights since the injury.[74]
[72]T57, L22-24.
[73]T57, L26-31; T58, L1-2.
[74]T58, L3-11.
119The plaintiff’s home is a four bedroom dwelling. He resides downstairs. He said there is one bedroom upstairs and three downstairs. His mother occupies one of the downstairs bedrooms and his wife and their son share a bedroom and that this an arrangement that has prevailed since some years ago when he “woke up in the middle of the night, um, screaming”.[75] The plaintiff said that his son wants to be with his mother. He said that despite ample room for him in the master bedroom, “I’m not going to put to risk that I start screaming, grabbing Dua in the middle of the night. Jai would never, ever forget that. If that happened once he would never forget that”.[76] He said that once after the incident, “I think I grabbed Dua, grabbed her round the neck. I know I grabbed her, whenever that was, but it was after that I thought I'm never going to - I'm not sleeping - I can't sleep in the same room”.[77]
[75]T58, L28-30.
[76]T59, L
[77]T59, L27-30.
120Ms Cooper questioned the plaintiff about a series of matters related to his everyday life and deposed to in his affidavit. For example, at paragraph 5 of his second affidavit, he said that “I go to bed at 11 pm and I wake up at around 2 am. I used to have horrific nightmares but now if I do have them I generally do not remember them”.
121Ms Cooper directed the plaintiff to a history of insomnia that predated the incident of October 2020. An Employee Assistance Intake Form dated 2016 identified the reason for counselling as, “Work stress, stress and sleeping issues”.[78] The plaintiff had two sessions of counselling in July 2017. In the course of the session conducted on 27 July 2017, it was recorded that the plaintiff presented with “Broken sleep, stressed out, not keen on taking sleeping tablets”. An entry of 5 October 2017 that addressed sleep noted that “About 3 am, awake till 6, always tired.” The plaintiff agreed with Ms Cooper that this was similar in nature to his current state.[79]
[78]Exhibit D6, DCB 43.
[79]T66, L18-20.
122Ms Cooper directed the plaintiff to a clinical entry from a doctor he attended on at the Chelsea Arcade Medical Centre on 22 March 2019 in which it was recorded by Dr Nagappa that the plaintiff was stressed at work and finding it difficult to maintain sleep. The note included that “Sleep at 9pm awake by 3 am, unable to fall asleep after that”. In light of the plaintiff having said that he finds he is nowadays awake for two or three hours in the middle of the night, Ms Cooper suggested to him that this was much the same as it had been in 2019 although the plaintiff said he is generally retiring at about 11 pm of a night.[80]
[80]T67, L26-31; T68, L1-14.
123Ms Cooper referred to an attendance by the plaintiff on his GP Dr Bidwell on 20 September 2019 who recorded a diagnosis of “insomnia” and addressing the history, the entry recorded, “Poor sleep? a few years. Goes off to sleep but wakes in middle of the night. Some stress at work, friend has recommended melatonin”.[81] The plaintiff agreed with the note.
[81]Exhibit D7, DCB 87.
124Ms Cooper suggested to the plaintiff that he has a significant health related heart condition and had suffered heart attacks in 2011 and 2013. He has undergone approximately six stents as a result of work stress that the plaintiff agreed he was suffering. He has been diagnosed with prostate cancer. In May 2018, it was recorded by Peninsula Health that the plaintiff’s condition was under active surveillance and that he had experienced a loss of sex drive and libido. The plaintiff denied the suggestion that his loss of intimacy is due to his prostate condition and said that but for the effects from the work injury he believed his drive would have recovered.[82] The plaintiff denied any sexual activity with his wife. When asked why he continued to obtain prescriptions for Viagra, the plaintiff said, “… just if I ever do then I've got some”.[83]
[82]T71, L16-22.
[83]T72, L25-30.
125Ms Cooper put to the plaintiff that in light of his various health conditions it was highly unlikely that he would have intended to continue to work beyond the age of 67 but the plaintiff said he had not entertained an intention to retire.[84] He said he had been motivated to continue working so he could afford to have his son educated at “a good school” of a type that he had been unable to provide to his now adult daughter.[85] The plaintiff also said that he wanted to ensure that his wife was able to be a “stay at home mum”, as he put it, although his wife indicated that she had hoped to return to full time work when their son reached a greater age. Moreover, the plaintiff said he had loved his job.[86]
[84]T74, L23-27.
[85]T74, L28-31; T75, L1-10.
[86]T75, L1-10.
126The plaintiff agreed with Ms Cooper that the average age for retirement of a PSO is 62 but he said this was for a PSO working in the transit division “not in our division.” The plaintiff referred to an officer who retired at 75 and that he was referred to by that individual’s name due to him becoming a late age father.[87]
[87]T75, L15-29.
127The plaintiff said he was not taking medication for his mental state. He accepted that he has not come under the care of a psychiatrist. He said that he had encountered difficulties in obtaining any appointments to see a psychiatrist because of lengthy waiting lists. He said that in 2021 he was referred to Dr Peter Farnbach at South Eastern Hospital. The referral came back and it was noted on 16 June 2021 that, “We are unable to accept your referral for the above named patient because they [the plaintiff] have declined the offer of an appointment. They said they're happy seeing their psychologist, Fiona, at Perpetual Wellness and doing well under their care. We have advised the patient that should he need our assistance he can see his GP for a new referral and he was happy with that outcome”.[88]
[88]Letter to Dr Chanathani Ilavalagan from Neurocentrix Administration dated 16 June 2021, PCB 55.
128The plaintiff said that he attempted to make contact with a psychiatrist a couple of months ago but there was a six month wait for an appointment and he did not want to wait that length of time but that in any event he doesn’t think “they can do anything”.[89]
[89]T79, L24-26.
129In re-examination, the plaintiff said that sometimes his wife uses his credit card. He said that although his wife has her own card, “a lot of times I give her my credit card”.[90]
[90]T80, L22-23.
130As to purchases made at outlets such as Bunnings, Woolworths and Costco the plaintiff said he did not accept they were all incurred by him. He was unable to identify which were incurred by him and which were not.[91]
[91]T80, L24-27.
131Mr Brett asked the plaintiff a wide ranging question directed to have him explain his approach to golf. The plaintiff gave a detailed answer that is only fairly captured by me setting it out in full. The plaintiff said:
“On the instruction, the suggestion that Fiona said, look, golf's supposed to help, and that straight away rung a bell, said, you know, I'm a good, I am a good golfer, I haven't played for years, I'll take it up and start playing golf. So it's not a matter of just going down the golf course and jump in with blokes and playing golf, you've got to hit practise balls, you hit practise balls, so if I make the - if all those with a golf club had practise balls and had some beers, I'm not actually playing golf, oh, yes, I'm playing golf, but I'm not only always playing golf, I'm also practising golf. It didn't take me long, I started - when I joined - as I said, I'm not sure if Your Honour, you understand golf, but I was a 36 handicap when I started golf, within a few months I was a nine handicap, and I don't know of anybody else that could do that, and then, just 'cause I was just playing on my own, or playing with an old bloke and there was no pressure, the minute I got any sort of pressure on me at golf, I was playing all the time, everyone said, 'Oh, you're such a good golfer, you should start playing in a competition or play a little bit more serious'. The minute that happened, that's when everything, the stress came back, the stress arrived, stress I've never, ever had on a golf course before where I'm shaking when I hold the golf club, so it's just a constant battle. So when I say on the affidavit, look, I'm not playing - I'm not playing again, but there's another part of me that says, I'm a good golfer, I'm not going to let this beat me, so yeah, I did jump back out and played again the following day, because I'm staring at the ceiling all night, saying, I'm a good golfer and I should be a good golfer, and I'm not going to let this beat me, it was my escape from - golf was my escape from all of this, and I thought, if I lose that, I've lost - I don't have anything”.[92]
[92]T81, L10-31; T82, L1-11.
132The plaintiff went on to say he will play with one particular golf partner and “usually just with Bernie, just group of two. On that day (the day that surveillance was shown) there was four random guys, but that’s just – I put my name down to play a game of golf”.[93]
[93]T82, L15-19.
133As to the now completed renovation of his bathroom he said he did no hands on work at all but because he has a large van he purchased materials for use in the build.[94]
[94]T83, L15-20.
134The plaintiff was asked to describe the extent of the work he would have performed but for the effects on him of his mental injury and he said:
“Yeah, I certainly would have put the plaster up, the framing, um, just had everything prepared, the water proofing, just (indistinct) the tiler just comes in and does the job”.[95]
[95]T83, L27-30.
135When asked if he could describe the qualitative difference between his current insomnia and broken sleep as opposed to the work related episodes of stress in 2019 when he had two sessions of counselling, he said:
“it's hard to remember back then, but I'd just wake up, I'd just wake up in the middle of the night, but now I wake up, I'm just full of - I'm just full of beans, I'm just full of beans, um, I've usually had - not every single night, but a lot of the nights I've had nightmares, um, and I just can't stop thinking about stuff now, it's constantly in my head, everything's in my head”.[96]
[96]T85, L2-8.
136The plaintiff said that in the 12 months before the work incident he did not believe he experienced a recurrence of his earlier work stress related insomnia or broken and disturbed sleep.[97]
[97]T87, L14-15.
Duangjai Chansri
137The plaintiff’s wife made two affidavits dated 17 January 2025 and 11 March 2025. She was cross examined.
138Ms Chansri said she took an extended period of maternity leave following the birth of their son and prior to returning to 2 days work a week, but recently in light of the age of their son, she has returned to a full time 5 day a week work. Ms Chansri said returning to full time work had not proved ideal because she now has increased domestic responsibilities that have accompanied her mother in law moving into the family home.[98]
[98]T90, L29-31; T91, L1-6.
139Ms Chansri said that her husband prepares breakfast and sees their son to school as well as having responsibility for him on school holidays in getting him out of the house for activities.[99] She said before his work injury her husband after coming home from work would help a lot but she is now not receiving much assistance from him.[100]
[99]T92, L28-31; T93, L1-2.
[100]T93, L3-8.
140Ms Chansri said she is encouraging of her husband spending time with their son and of him taking the lad on outings during the holidays. She said they have attended the movies as a family. She said that on occasions when she is not up to cooking they will go out for dinner.
141Ms Chansri said that her husband does not eat with the family. She said, “Because he just don't want to see Jai like swearing, like to see him when he frustrating or angry with me if I drop something, it's just get more frustrated”.[101]She said further that:
“something, even annoy, like his nerve is break, like I just drop something or, our son, he's full of energy, sometimes just play with the dog, noisy, and get like running around, chasing, screaming, and he can't stand that sort noise and something with the nerve, he just making more - I don't know, more - like he's nervous, like he not have a good nerve like used to be, like (indistinct) or something drop and he jump, like something drop on the floor, bang, cleaning the kitchen or something bang, he just jump, so yeah, it's a nerve, something to do with nerve or, I don't know”.[102]
“Okay, if we go over to paragraph 14 of the affidavit. Now, you've said here, It's got to the point where I do not want Brendon to be around our son because he's always angry'. Now, that's not correct, is it?---He frustrated and some time get angry with, um, little thing”.[103]
“When he in a good mood I want him to be like get involved, I don't want to feel like I'm a single mother, I do everything by myself and come home, work and come home look after everyone. So I want some help, that would be make me feel like I'm not just alone in here, so need help”.[104]
[101]T94, L27-29.
[102]T95, L1-11.
[103]T97, L22-25.
[104]T97, L4-9.
Defendant’s Address
142Ms Cooper submitted that the plaintiff was a dishonest and evasive witness. Ms Cooper submitted that the plaintiff gave untrue evidence about playing golf and the extent of his participation in it. The plaintiff’s evidence that after his one effort at playing golf that was accompanied by him falling apart he had not been able to return is to be contrasted by the fact that the very next day following swearing that affidavit he was filmed having played 18 holes over some four hours but before the film was shown he said that if he had returned, it was perhaps to hit a few balls.
143Ms Cooper submitted that the plaintiff’s evidence that the person shown to be going around with him that day, and who he described as a “random,” should be considered in light of his later evidence that he does have a golfing partner and when at the Rossdale Golf Course he will sometimes put his name down to play with random people.
144Ms Cooper submitted that the plaintiff’s financial records are evidence that he has and continues to play golf and that he plays 18 holes on a regular basis at varied locations in Victoria. She submitted that the notion that the plaintiff will go to a course just to hit balls as opposed to more consistently playing the full course should be rejected.
145Ms Cooper submitted that I should reject the plaintiff’s characterisation of himself in his second affidavit as sitting at home “like a zombie” in light of what she submitted was a very full and busy and golfing life.
146Ms Cooper referred to the account the plaintiff gave to Dr Lewis that he rarely leaves the house in the absence of his wife when in truth the plaintiff very regularly leaves his home and participates in life without his wife.
147Ms Cooper further submitted that I should be cautious in accepting the plaintiff’s oral evidence of a limited involvement in the bathroom renovation.
148Ms Cooper submitted that I should not accept the plaintiff’s evidence that he is unable to contribute to his son’s life but that in fact that he is quite engaged in the care of and concern for his son. Ms Cooper submitted that I should also be satisfied by the care assessment and by Ms Dickie’s record that the plaintiff has proved himself, commendably, to be involved with the care of his mother and to an extent that belies his evidence to the Court that her care is left to others.
149Ms Cooper portrayed the plaintiff as an active retiree living “a pretty full and busy life”.[105] Ms Cooper contended that the plaintiff is “caring for his son; playing golf; going to the shops; renovating his bathroom; renovating his mother's house, or overseeing it; caring for his mother; travelling; and going sometimes to dinner and movies with his family”.[106]
[105]T165, L6.
[106]T165, L7-10.
Plaintiff’s Address
150Mr Brett submitted that I could be comfortably satisfied that the plaintiff would have worked longer than retirement age because he had a young son and the position in which found himself is different to the average man, and on the balance of probabilities, he would have, but for the injury, continued working. Mr Brett argued that the plaintiff’s co-morbidities are well managed.
151Mr Brett argued that on any view of the evidence, the plaintiff does not have the ongoing capacity to return to work.
152Mr Brett submitted that despite the plaintiff giving unsatisfactory evidence about his participation in golf, I should not conclude from the extent of his participation in it that he leads a very active life, as the defendant would have it. Mr Brett submitted that “When you look at a person's activities over a period of, I think, five years or four years, and you say, 'You've done this, this, this and this', that can make it sound very active. But of course, spread over four years, it may not be nearly as active”.[107]
[107]T185 L30-31; T186, L1-3.
153Mr Brett submitted that the plaintiff’s travel to Thailand were explicable from his desire to ensure his son had a cultural connection to his mother’s homeland and culture. As Mr Brett put it, “Again, just because he is psychiatrically unwell doesn't mean that he is a vegetable or living in a vacuum”.[108]
[108]T186, L8-10.
154Mr Brett contended that the fact of the plaintiff going into various shops of a day is not out of the ordinary. I asked Mr Brett if these activities nonetheless sat in stark relief from the plaintiffs description of living a life akin to that of a “zombie.” Although Mr Brett recognised that I would not be able to “accept his evidence in its entirety” as it related to golf, he impressed on me that I could accept the plaintiff’s wife’s evidence in its entirety. He said, “we know that he's a person who no longer sleeps in the same bed as his wife, because he can't deal with it. He no longer has dinner with his family because he can't deal with it. And this is not just his evidence, this is his wife's evidence”.[109]
[109]T188, L24-28.
155Mr Brett submitted that the plaintiff has episodes where he becomes extremely angry for no good reason. He cannot stand loud noises as his wife testified and these are contraindications of a capacity to work.
156Mr Brett submitted that an accurate understanding of Ms Dickie’s evidence is that in so far the plaintiff’s experience of nightmares is concerned her records leading to her first affidavit and the record of attendance that led to her last note of counselling showed one record of nightmares for each period about which she was questioned by Ms Cooper and which Mr Brett submitted was not evidence of a change at all and did not support the defendant’s contention that the plaintiff has undergone a significant improvement.
157Mr Brett placed great store in the opinion of Ms Dickie due to the consistency and time over which she has treated the plaintiff. Having seen the plaintiff over a period of four years, and aware of him playing golf, and knowledgeable of many of his activities including caring for his mother and shopping for food for her, she nonetheless describes him in terms consistent with the diagnosis of PTSD.
158As to the plaintiff having seen a police psychologist in 2016, Mr Brett submitted that it was confined to some work stress and is irrelevant to his present diagnosis of PTSD.
159Mr Brett relied on Dr Lewis and his diagnosis of PTSD that was based on a history of hyperarousal, nightmares, disturbance of family life, an exaggerated startle response as attested to not just by the plaintiff but in the main verified by Ms Chansri. Mr Brett submitted that I should prefer this diagnosis as opposed to the opinion of Associate Professor Doherty.
Analysis
Golf
160The significance of the plaintiff’s ongoing participation in golf is twofold. First, what was revealed by cross-examination of the plaintiff inevitably affects his credit. I am satisfied that the plaintiff gave false evidence about the extent of his participation in it. Second, the playing of golf and its frequency is probative to an overall assessment of the severity of the plaintiff’s mental impairment.
161The surveillance of 18 February 2025 contradicts the plaintiff’s evidence he gave in answer to Ms Cooper when he said he thought he would only have hit a couple of balls that day. His evidence that he effectively crumbled after the one occasion he deposed to having played golf since his injury and that he did not believe he could return to it cannot be accepted given that he had played frequently beforehand and played golf the day after he made his deposition. On the other hand, I accept the plaintiff’s explanation for what playing golf provides to him emotionally and I also accept that he does not engage in it in the same way he used to and nowadays either plays alone or it seems with one other fellow on some occasions.
162Mr Brett recognised the difficulty created for the plaintiff because of the contradictory evidence of his involvement in golf but he asked me to adopt as true in its entirety the evidence of the plaintiff’s wife and her portrayal of her husband as he now presents in comparison to him before the work injury, and that if I did so, then I could be satisfied that her insights of him accords with and corroborates a significantly debilitated state across a range of other aspects of life that he attested to and is also reflected in clinical and medico legal reporting.
163I see no reason not to accept Ms Chansri’s evidence. Her veracity was not challenged. I accept her evidence. There are limits to her evidence as it concerns her capacity to speak to the degree of her husband’s activities of a workday when she is not at home.
164The plaintiff described himself as a “zombie”. I am satisfied that this adjective is an exaggeration on his part. During a given week, I am satisfied that the plaintiff will leave the house in the absence of his wife (who works full time) in order to play golf and to make purchases at various stores.
165I am not satisfied that the plaintiff gave a false account of his involvement in the care of his mother. His attention to her is commendable. The plaintiff has proved able to ensure she is fed but I accept that this is limited to providing her simple food such as heating up soup; ensuring her medication is adhered to and driving her to medical appointments when required, although that seems to be reasonably infrequently.
166I am not satisfied that the plaintiff gave false evidence about the extent of his involvement in the renovation of the second home bathroom. He deposed at paragraph 36 of his first affidavit that, “My motivation for home improvements has diminished. I've been unable to finish the bathroom renovation. As a result our second bathroom has looked like a construction site for over two years”.[110] The plaintiff maintained that the extent of his involvement has been picking up some tiles and plaster for use in the renovation and that he was required to hire a tiler in order to complete the work.[111] I accept that evidence.
[110]Exhibit P1, PCB 20.
[111]T41, L14-21.
167A number of the evidentiary considerations I have mentioned notably golf, of shopping for staples and making hardware purchases on occasions and attending an occasional movie with his son and or wife and of course travelling overseas to Thailand are relevant and without more, they might tend against a finding that the consequences of the plaintiff’s impairment of the mind is severe but they do not constitute the entirety of the relevant evidence in assessing the severity of the plaintiff’s mental state.
168Ms Dickie as recently as March 2025, confirmed that she continues to see the plaintiff on a weekly basis with her assessment being that such frequency is warranted given her judgement of the severity of his symptoms. She came to a diagnosis of PTSD. It was left uncertain if Ms Dickie held qualifications enabling such a diagnosis to be made but if that be questionable her identification of characteristics exhibited by the plaintiff such as continuing to ruminate with intrusive thoughts and suffering from sleep disturbance, irritability and functional impairment are on the whole at one with the diagnosis adopted by Dr Justin Lewis. Dr Lewis reported that the plaintiff has well entrenched PTSD with traumatisation symptoms. On the other hand, Associate Professor Doherty ascribed to the plaintiff a presentation that overstated a reliance on the work trauma as contributing to his mental health whilst underestimating the effect of non compensable family and personal issues.
169As far as Ms Dickie’s hand written notes and typed versions of the same are concerned, and the difficulty she had in explaining the effects of the note taking software programme she used, and while they are unreliable, I see no basis to not accept the accuracy of the facts she referred to and the opinions she expressed in her written reports and of the utility of her oral evidence given the length of time and frequency with which she sees the plaintiff.
170I am acutely conscious that false accounts given by a plaintiff to a doctor makes an acceptance of other evidence in the absence of corroboration problematic. This is even more so in cases relaying on a mental impairment. However, I am not satisfied that the plaintiff’s affidavit evidence or the omission to describe to Dr Lewis the degree to which he participates in golf must result in me rejecting otherwise the evidence of the plaintiff of the effects of his condition. These are in great measure verified by his wife and is also consistent with the insights and knowledge obtained over a long time seeing and treating the plaintiff by Ms Dickie.
171I have taken into account the following observations from TAC v Katanas.[112] In considering the severity of injury, the High Court recognised a difference between the nature of symptoms and consequences of mental injuries compared to physical injuries. The Court observed:[113]
… In either case, assessment of the severity of an injury will ordinarily be informed by what is accepted as being the extent of both its symptoms and its consequences. But to speak of symptoms and consequences in the case of mental disorder or disturbance suggests a bright line distinction that may not always exist. In the case of physical injuries, the distinction tends to be clear. The majority gave as an example a claimant who suffers a spinal disc protrusion, which is an injury, and causes sciatica, which is a symptom, that causes sleeplessness, which is a consequence. Such examples can be multiplied. By contrast, in the case of mental disorder or disturbance, symptoms and consequences more often elide. No doubt, the respondent’s asserted inability to undertake further education would be characterised simply as a consequence of her injury. But, as their Honours observed, her reported experience of flashbacks and nightmares might properly be described as both a symptom of her post-traumatic stress disorder, and a consequence of the disorder. It is important to bear in mind, therefore, that in assessing the severity of mental disorders or disturbances, what might be characterised as a symptom may also be relevant as a consequence.
[112][2017] HCA 32.
[113]Ibid [29].
172Having considered all of the evidence, I am satisfied that despite the plaintiff’s unreliability caused by his misstatement of the extent of his golfing, but accepting that his participation in it is not uniformly as it was before his injury, and an overestimation of the degree to which his mental condition isolates him, that nonetheless, it would be wrong to determine the outcome of the application for a pain and suffering certificate by reason of these matters alone. I think that I need to balance them against the other evidence, such as the opinion writing of Ms Dickie and Dr Lewis, whose assessment and recording of the characteristics displayed by the plaintiff were reflected not just in the plaintiff’s evidence but also by the plaintiff’s wife. The accounts of his domestic sleeping and eating arrangements, his startled response to noise, his fear of doing unintended harm to his son and his sense of a need to be able to exit the home urgently in an emergency fall beyond what may objectively regarded as something less than severe.
173The plaintiff expressed a sense of failure as a father to his son. There appears to be a number of factors that have led him to that opinion, but his assessment of not being capable of meeting his expectations to his son are more probably than not a feature that resonates due to his mental state and not because of other personal or health disturbances in his life.
174The plaintiff’s wife whilst not able to speak in a meaningful manner of the plaintiff and his activities of a work day because of being at work herself, nonetheless, sees him otherwise of day, and her evidence of the differences in him that she has witnessed struck me as genuine and consistent with aspects that have been formally identified in the plaintiff’s treating and medico legal opinion. Hence, I prefer all of that that evidence overall to the contrary opinion of Associate Professor Doherty, whose assessment strikes me as somewhat binary.
175Accordingly, I am satisfied that the plaintiff is entitled to the grant of a certificate for pain and suffering for his diagnosed PTSD the consequences of which I am satisfied both to him, and when assessed according to the range for such an impairment, are severe and permanent.
Economic Loss
176The plaintiff said but for the work injury he had intended to continue in employment. His rationale struck me as reasonable and relatable and based on his desire to provide educationally for his son in a manner that he said he had been unable to achieve for his older daughter from his earlier relationship. There is relevantly contemporaneous evidence that corroborates the plaintiff’s account. In Dr Cheong’s reporting and review of the plaintiff’s fitness for work, and in the course of his first report, he mentioned the plaintiff having said that he had a young child and financially wanted to continue working. In Dr Cheong’s second report from May 2022, the plaintiff was recorded as unfit for all duties.
177As to the defendant’s argument that the plaintiff’s other medical conditions would have led to him having determined to cease employment, the empirical evidence is that the heart and prostate issues are under management.
178I accept that on balance had the plaintiff not suffered the work injury he would have been able to and have continued in employment.
179I am satisfied that the plaintiff is entitled to the grant of a certificate for loss of earnings and he is not capable of employment.
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