Oliver v TAC
[2021] VCC 945
•21 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04274
| Karen Oliver | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 24 June 2021 | |
DATE OF JUDGMENT: | 21 July 2021 | |
CASE MAY BE CITED AS: | Oliver v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 945 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT COMPENSATION
Catchwords: Extension of time application – serious injury application – psychiatric injury – whether a result of the transport accident
Legislation Cited: Transport Accident Act 1986 (Vic); Limitation of Actions Act 1958 (Vic)
Cases Cited:AG Staff Pty Ltd v Filipowicz [2012] 34 VR 309; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; De Agostino v Leatch & Anor [2011] VSCA 249; Lexa v Transport Accident Commission [2019] VSCA 123; Petkovski v Galletti [1994] 1 VR 436; Prince Alfred College Inc v ADC [2016] HCA 37; Rowe v TAC [2017] VSCA 377; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
Judgment: Extension of time dismissed – serious injury application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC Mr M Fogarty | Arnold Dallas McPherson Injury Lawyers |
| For the Defendant | Mr A Moulds QC Ms B Myers | Lander & Rogers |
HER HONOUR:
1The plaintiff, Karen Oliver, seeks leave under s93 of the Transport Accident Act 1986 (“the TAA”) to bring proceedings for the recovery of damages in respect of a psychiatric injury allegedly suffered as a consequence of a single vehicle transport accident involving a double fatality that occurred on 1 January 1990 at Big Hill, 10 km south of Bendigo (“the Big Hill accident”). At that time, Ms Oliver was a policewoman with the Traffic Operations Group (“TOG”). She attended the scene of the accident in the course of her police duties and witnessed the deceased mother and her deceased two-year-old son who had been passengers in the vehicle.
2There has been a delay of some 29 years between the plaintiff allegedly suffering her psychiatric injury on 1 January 1990 and the issue of the Originating Motion in September 2020. The limitation period expired on 1 January 1996. For this reason, the plaintiff also applies under s23A of the Limitation of Actions Act 1958 (Vic) (“the LAA”) for an extension of the limitation period.
Extension of time application under s23A of LAA
Legal principles
3The law recognises at least four rationales underpinning legislation providing for periods of limitation.[1] First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people, businesses and public institutions have a significant interest in knowing that they have no liabilities beyond a definite period. Finally, the public interest requires that disputes be settled as quickly as possible.
[1] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552-553 (‘Taylor’) (McHugh
J).
4The purpose of the legislative conferral of the discretion to extend time is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospect of a fair trial will usually be fatal to an extension of time application.[2]
[2] Prince Alfred College Inc v ADC [2016] HCA 37 [100].
5The plaintiff bears the positive burden of demonstrating that an acceptably fair trial on the merits of the case can be achieved despite the loss of evidence.
6The Court must synthesise all the competing considerations in order to arrive at a conclusion that the justice of the case requires the grant of the application to extend time.[3]
[3] Taylor (1996) 186 CLR 541, 553.
Defendant’s submissions
7The defendant resists the application on the basis of the inordinate delay, which it says is inadequately explained by the plaintiff, and the resulting prejudice to the defendant.
Plaintiff’s submissions
8The plaintiff says that it is just and reasonable for the Court to exercise its discretion to extend the period within which the plaintiff may commence common law proceedings on the following grounds.
9First, the plaintiff did not know her common law rights until she consulted her solicitor, Nicole Connors of Arnold Dallas McPherson, on 5 December 2018, and that since then, she and her lawyers have acted promptly.
10Second, the prejudice claimed by the defendant flowing from the inability to obtain contemporaneous clinical records from Dr Helen Tom, general practitioner, Ms Lorraine Meades, psychologist, and Dr Stefanova Stoyanova, general practitioner, is mitigated by a number of matters. There were no attendances on Dr Tom before 29 November 1994, and she produced three reports from 1995 to 1997 as well as clinical notes for the period September 1999 to December 2001. Ms Meades provided three reports from 1996. The defendant has obtained the files relevant to each of the plaintiff’s WorkCover claims for anxiety and depression with Victoria Police, made on 29 December 1994, 12 February 1996 and 12 December 1996. The defendant has also obtained medico-legal reports of two psychiatrists, Dr Vinod Thacore and Dr Nitin Dharwadkar, dated 30 January 1995 and 19 March 1997 respectively. In addition, the plaintiff gave evidence that she had no treatment for her mental health between 2002 and 2013. None of the three psychiatrists who examined the plaintiff for medico-legal purposes in 2020 and 2021 indicated that they had insufficient material to provide an opinion.
Findings and reasons
11The defendant opposed the application to extend time. In all the circumstances, and for the reasons below, I do not consider that it is just and reasonable to exercise my discretion to extend the limitation period. This is because of the inordinate delay and resulting prejudice to the defendant.
12The delay is that between 1 January 1990 and the issue of the serious injury application on 9 September 2020, a delay of more than 29 years. Such a delay means that prejudice is to be presumed.
13Time will inevitably erode the memories and quality of any evidence that remains. For example, the plaintiff’s treating practitioners (Dr Tom, Ms Meades and Dr Elizabeth Nuttall, psychiatrist), if found and capable, would have no memory and would be reliant on clinical notes. No clinical notes are available prior to September 1999, and only scant clinical notes are available since then. In particular, no material is available from the Victoria Police social worker, psychologist and Police Medical Officer who saw the plaintiff in the 1990’s. Their evidence may be of significance.
14Similarly, the effluxion of time has deprived the defendant of leading evidence of the observations of others as to the effects of the Big Hill accident on the plaintiff. I note that much of the material which is available, and which is canvassed below, deals broadly with the workplace stressors affecting the plaintiff in the 1990’s, but not specifically with a mental condition attributable to the Big Hill accident.
15I also note that there are no contemporaneous medical records of any treatment of the plaintiff for any emotional condition between 1999 and 2013 and that the doctor who treated the plaintiff at the time of the onset of auditory hallucinations in 2013, Dr Stoyanova, ceased practising prior to 2018 and her clinical records are not available. When the plaintiff was admitted to hospital with psychosis in 2013, she gave a two week history of auditory hallucinations. There is no mention of auditory hallucinations in the medical material of the 1990’s that was tendered. Yet the plaintiff told Associate Professor Doherty, psychiatrist, in April 2021 that she first heard voices in 1996 or 1998. She also told Dr Rosario Palaypayon, general practitioner, in June 2021 that she first experienced auditory hallucinations after she attended the Big Hill accident. This illustrates the difficulties in litigating this matter so long after the event in question.
16Importantly, the plaintiff adduced no evidence to suggest that she was suffering from a legal disability at any relevant time. Rather, she relies on her unawareness of the limitation period and her common law rights until she obtained legal advice on 5 December 2018. She admitted that she sought no legal advice prior to that time.
17Her evidence was that she suffered poor mental health from the time of the Big Hill accident, made a number of WorkCover claims, took periods off work, and changed to different duties, but continued to be badly affected until her resignation from Victoria Police in 2000. In her affidavit, she said that she moved away from Bendigo to avoid “triggers from the accident” and that between 2007 and 2014 she contributed little to the accommodation business because of her mental health.[4] She also said that her work with SERCO as a speed camera operator between October 2009 and April 2010 became “….increasingly difficult to cope with over time”.[5]
[4] Plaintiff Court Book (‘PCB’) 14.
[5] Ibid.
18However, the plaintiff also gave evidence that between 2000 and 2013 she worked in a number of positions, and did not require or undertake any medical treatment for any mental health symptoms or condition, apart from being at home for a month while working as a security guard after being “triggered” by the actions of another security guard.[6]
[6] Transcript of Proceedings, Oliver v Transport Accident Commission (County Court of Victoria, CI-20-
04274, Judge Davis, 21 and 24 June 2021) (‘T’) T52.23-31.
19In these circumstances, if it is the case that she was suffering from ongoing mental health issues connected with the Big Hill accident, it is appropriate for the Court to take into account that she had previously been mentally unwell and made WorkCover Claims during the 1990’s. Therefore, it is reasonable to expect an explanation for her failure to take legal advice at any time before or after leaving Victoria Police.
20For the sake of completeness, and in the event that I am mistaken in my decision to refuse to extend time, I proceed to determine the serious injury application.
Serious Injury Application
21The parties filed court books. The plaintiff adopted her affidavits and was cross-examined. No other witnesses were called to give evidence. The matter was then adjourned so that the parties could exchange and file written submissions. Counsel made final oral submissions on 24 June 2021. I have considered all of the evidence as well as the written and oral submissions of counsel.
Defendant’s submissions
22The defendant submitted that the plaintiff suffers from psychosis which is unrelated to her employment. Secondly, the totality of the evidence concerning the cause of her current post-traumatic stress disorder (‘PTSD’), taken at its highest, establishes no more than that the Big Hill accident is a contributing factor to her current PTSD. The overwhelming thrust of the evidence is to the effect that her current PTSD results from the accumulated stressors of her work as a police officer. Thirdly, the plaintiff has failed to disentangle the sequelae of her PTSD from that of her psychosis, so as to establish that the consequences of her PTSD are permanent and constitute a severe impairment. For these reasons, her application should fail.
Plaintiff’s submissions
23The submissions made on behalf of the plaintiff may be summarised as follows.
24Firstly, the Court should accept the plaintiff’s evidence because she gave it clearly, at times made admissions against interest, and there is no medical evidence to suggest fabrication of her symptoms.
25Secondly, the Court should find that as a result of the Big Hill accident, the plaintiff suffered a psychiatric illness in the form of PTSD. The evidence which supports this comes from a number of sources.
26The first source is the plaintiff: she says that she was traumatised by what she saw on 1 January 1990 and has never been the same person since then.[7]
[7] PCB 12, 17.
27The second source is Brian Hinton, police officer, who attended the accident with the plaintiff on that day, and stated that the scene was “terribly distressing and upsetting”,[8] and that immediately after the accident, he:
…observed that Karen’s general demeanour changed. Her personality seemed to change. She started to appear generally more stressed and lower in mood. She seemed to me to have been affected by the accident from the date of the accident.[9]
[8] PCB 190.
[9] Ibid.
28The third source is Inspector Geoff Newby, who rejected the plaintiff’s application to re-join the Police Force in August 2001. He examined the Plaintiff’s personnel file as well as the application and noted in his Memorandum dated 13 December 2001:
References generally refer to the Applicant’s decline in performance in the latter part of her service. They indicate that the matter stemmed from exposure to a fatal motor vehicle collision involving a female and child. Depression resulted and associated stress leave was taken.[10]
[10] PCB 194.
29The fourth source was Dr Tom, the plaintiff’s first relevant treating doctor. She saw the plaintiff on the 24th November, 1994 and received a history which included that the plaintiff was very upset by the Big Hill accident and lost considerable weight and that as time went on, she found verbal abuse from drivers “more and more difficult to deal with”.[11]
[11] PCB 29.
30The fifth source was Ms Soak Mun Lee, psychologist, who has treated the plaintiff from 2018 to date and received a history from the plaintiff that the Big Hill accident was her target of treatment.[12]
[12] PCB 96.
31The recent medico-legal psychiatric reports of Dr Michael Epstein, psychiatrist, Dr Dennis Handrinos, psychiatrist, and A/Professor Doherty also support this approach. Dr Epstein opined that the Big Hill accident was a significant factor in initiating the plaintiff’s PTSD.[13] Dr Handrinos received a history that the plaintiff’s problems at work began on 1 January 1990 with this traumatising incident and that it remains a traumatic incident for her.[14] He also diagnosed the plaintiff with PTSD.[15] A/Professor Doherty accepted that the Big Hill accident affected the plaintiff’s ability to work in 2000.[16]
[13] PCB 130.
[14] PCB 149.
[15] PCB 154-155.
[16] Defendant Court Book (‘DCB’) 52.
32Thirdly, the Court should find that the plaintiff continues to suffer the consequences of PTSD. In this regard, the plaintiff relied on the opinions of Dr Joe Vattakatuchery, psychiatrist;[17] Ms Kim Clancy, psychologist;[18] and Ms Lee. Ms Lee stated that the plaintiff’s symptoms were consistent with the diagnosis of PTSD and that her complex PTSD symptoms were the precipitating and maintaining factors for her ongoing mood problems.[19] In addition, Dr Handrinos noted the plaintiff’s complaint that she continues to be traumatised by the Big Hill accident.
[17] PCB 78.
[18] PCB 109.
[19] PCB 101.
33The Court should prefer the opinions of Dr Handrinos and Dr Epstein to that of A/Professor Doherty, who considered that “the psychiatric problems relating to the subject transport accident faded with treatment in the 1990’s”.[20] A/Professor Doherty’s opinion is inconsistent with the rejection of the plaintiff’s application to rejoin the Police Force in 2001 on the basis (presumably) of a conclusion by Inspector Newby that the Plaintiff “does not meet” the standard of being able to perform general police duties”.[21]
[20] DCB 52.
[21] PCB 194.
34Finally, the significant consequence for the plaintiff of her PTSD condition is that she is not capable of resuming employment as a police officer. This is consistent with the rejection of her application to rejoin the Police Force in 2001 and is consistent with Dr Handrino’s report that her PTSD is “persistent and severe” and that she has no capacity to work.[22] A second significant consequence is that she remains “severely disabled” by reason of the PTSD,[23] according to Dr Epstein. Ms Lee noted ongoing symptoms including “intrusive memories of traumatic events, recurring distressing dreams … flashbacks … hypervigilance, problems with concentration, exaggerated startle response, persistent inability to experience positive emotions, and struggles to remember important aspects of the traumatic memories”.[24]
[22] PCB 155, 157.
[23] PCB 142.
[24] PCB 101.
The plaintiff
35The plaintiff is 55 years old and completed Year 10 at secondary school. She commenced employment with Victoria Police in March 1988 at the age of 24.
36In late 1989, she was transferred to Bendigo as part of the Bendigo TOG. She performed highway traffic patrol, mostly alone.
37The plaintiff’s evidence concerning the impact of the Big Hill accident as contained in her affidavits may be briefly summarised as follows.
38She attended the Big Hill accident, where a car had run off the road, killing a mother and young child, and injuring another child. This was the first fatal accident she had attended. She found it very distressing, worked for the next three days, but then “fell in an emotional heap”.[25] She lost a lot of weight over the next few months.
[25] PCB 12.
39She was exposed to a number of other stressful incidents, including attending other fatalities, over the next ten years in the course of her employment with Victoria Police, but was “never the same” after the Big Hill accident.[26]
[26] PCB 12, 17.
40She moved to Queensland in 2002 in order to “get away from triggers of the accident”.[27]
[27] PCB 14.
41As at 26 June 2019, the plaintiff deposed that she continued to suffer severe anxiety, panic attacks and fluctuating depression. Her “general ability to cope has reduced significantly since the accident”.[28] She had low levels of confidence, energy and motivation, a poor memory, and was unable to feel joy. Her libido was reduced. She had nightmares about twice per week. She continued to hear auditory sounds which fluctuated but did not distress her. She avoided going out. She was taking Temazepam as needed and was seeing her psychologist, Ms Clancy, monthly, and her general practitioner, Dr Rosario Palaypayon, as required. She had not worked at all since July 2018 and did not feel capable of working.
[28] PCB 16.
42As at 12 January 2021, the plaintiff deposed that she was treated by Ms Clancy until November 2019 and then started attending another psychologist, Ms Lee, from July 2019.[29] She first met Ms Lee when she received private in-patient treatment at the Melbourne Clinic in 2018.[30] She continued to suffer anxiety and panic attacks when exposed to triggers, such as hearing about the Eastern Freeway collision in April 2020. Her depression is persistent but fluctuates and she continues to feel suicidal on occasion. She has lost her drive to do things she used to enjoy, such as reading and gardening. She continues to suffer nightmares and a loss of libido, and does not go out much. She occasionally experiences auditory sounds, when she feels anxious: the voices she hears are threatening to murder her or her partner.
[29] PCB 18-19.
[30] PCB 19 [5].
43She continues to take Temazepam at night two to four times per week, as needed, for sleep. She also takes Valium when her anxiety is very bad, which happens unpredictably. She may go two weeks without taking any Valium and then need to take it daily for the next two weeks.
44In cross-examination at the hearing, the plaintiff agreed that she had attended at the scene of six fatal collisions and numerous other serious or minor collisions.[31] She said that the Big Hill accident was traumatic and that images of that accident remain vivid.[32] She agreed that she found verbal abuse from drivers difficult to deal with.[33] She agreed that the WorkCover claims forms filed by her in December 1994 and February and December 1996 cited depression and anxiety and stress as her problems, which related to the performance of her traffic duties.[34]
[31] T27.1-7.
[32] T28.18-29.
[33] T30.28-31.
[34] T32.17-33.18.
45She did not recall the histories she gave to the police psychologist and social worker or Ms Meades.[35] She did not recall that she did not mention the Big Hill accident to Ms Meades,[36] but she said that “I blacked out when I spoke to her” about the incident, and that “I would have been in a dissociated state as well”.[37]
[35] T36.24-26; T40.7-8.
[36] T40.7-8.
[37] T40.17.
46She agreed that Dr Tom prescribed her with anti-depressants, and that she derived some improvement from this treatment for six months or so.[38]
[38] T40.21-28.
47She acknowledged that her history to Dr Thacore did not include any mention of the Big Hill accident. The plaintiff explained this gap as being due to her having trauma-based dissociation, especially from the Big Hill accident.[39]
[39] T62.4-5.
48She acknowledged that the history she gave to psychiatrist Dr Dharwadkar in 1997 was of all the work stressors associated with her duties in the TOG between 1989 and 1994, including attending between 15 and 16 collisions, and that she identified the particularly tragic collisions in January and April 1990.[40] The other stressful incidents included being the target of false allegations resulting in a court case. She insisted that she knew that “all of my mental health issues began then”,[41] after the January Big Hill accident, that all of the stressful incidents were “mixed in”,[42] but that “I’ve always come back to that 1 January 1990 accident”.[43]
[40] T63.2-64.10.
[41] T64.10-11.
[42] T64.21.
[43] T64.17-18.
49She agreed that in mid-2019, she prepared a typed and handwritten document of five-six pages setting out the traumatic events and stressors she had experienced during her employment with Victoria Police.[44] The list included six fatal collisions, a number of serious and minor collisions, as well as abuse from drivers.[45]
[44] T17.6-8, 17-18; T18.7-9.
[45] DCB 82-86.
50The plaintiff said that back then, police psychologists did not talk about PTSD as they do now. She insisted that in spite of the diagnosis of anxiety and depression made by Dr Tom in 1995, she was in fact suffering PTSD as a result of the Big Hill accident, and that it was this incident that was traumatic, whereas the other incidents were significant and distressing but not traumatic. She said she learned from the PTSD course she underwent when being treated with EMDR (Eye Movement Desensitisation and Reprocessing) at the Melbourne Clinic in 2018 that trauma is “recorded differently” to other distressing or significant events.[46] She also learned about dissociation. She insisted that she was in a dissociated state when she saw doctors, psychologists and social workers in the 1990’s,[47] but that she was in fact suffering from PTSD related to the Big Hill accident during those years.[48] She insisted that she had worked through a number of distressing events but that the Big Hill accident remained the one that has stayed with her.[49]
[46] T26.21.
[47] T40.16-18.
[48] T33.30-34.2.
[49] T18.1-6.
Medical and other evidence
51There is no evidence that the plaintiff had any time off work after the Big Hill accident nor had treatment for any psychological condition until she consulted Dr Tom in November 1994 in the context of the Court case that led to her first WorkCover claim on 29 December 1994.[50] At that time, the claim was for “mental strain by pressures caused by pending court matter”.[51]
[50] DCB 66-67.
[51] DCB 66.
52Dr Tom’s report of 1 February 1995 noted the plaintiff:
… first presented in a distressed condition on the 24th November 1994. She stated that she felt as if she was going mad and had reached the point of quitting her job. She stated she had enjoyed being in the Police Force but was now finding the work very stressful.
On further questioning, it appeared a number of events had led her to this situation. She was in a Traffic Operations Group which was required to deal with a tragic accident at Big Hill near Bendigo. On this occasion on the 1st January 1990 a car ran off the road and & mother and child were killed. The second child of the family was injured. She was very upset following this and lost a considerable amount of weight over the following six months. She did not continue to lose weight, but in the succeeding five years has not gained the weight that she lost.
As time went by she found verbal abuse from the drivers she had pulled over more and more difficult to deal with. She did not discuss this with other people in the Traffic Operations Branch or & more senior member of the Police Force, probably for fear they would think she wasn’t coping. She was working on the road as a solo worker and therefore had little time to share her problems with other members of the Police Force. in the earlier part of 1994 she booked a man who subsequently went to court to contend [sic] his conviction. She found the build up to the court case extremely stressful and when she finally went to court on the 21st and 22nd December she found the event extremely upsetting. She was particularly upset that the defence barrister accused her of malicious ambush and other such things which she knew to be totally untrue. She gained some relief from the tact that the man was finally convicted of his traffic offence.
After obtaining this history I felt that Ms. Oliver was suffering from anxiety and depression caused by her work as a Police Officer. I felt that the nature of the work, which is solitary and in which she is subject to abuse by individuals was a major contributing factor to her condition.
……….
I would prefer not to see her return to her pre-injury employment, and in fact she has been offered a job in District Support Group. l have discussed this with her and, although there are some stressful aspects of this job, she will be working with a group and this should help her cope with some difficulties.
……..
At present Ms. Oliver has not regained her confidence and stability or mood. l have recommended to her that she does not return to work at this time, I would hope that she will see a psychologist in Bendigo to help her work through the problems and her anxiety.…….[52]
[52] PCB 29-30.
53The plaintiff had some time off work and underwent training with “Project Beacon” and performed alternative duties for 6 months in the District Support Group in 1995.[53]
[53] T36.27-37.11; T37.21-25.
54The plaintiff was examined by Dr Thacore, in January 1995. He reported receiving the following history from the plaintiff:
…….She has been off work now for about two months being unable to continue with her duties on account of emotional ill-health which stopped her from working in mid December, 1994.
She said that since the middle of last year she was finding it increasingly harder to continue at work. She said that she did shift work and was on duty by herself on the highways when over a period of a few months “everything built up" until she could not pull people up anymore. She found the hostility of offenders against her when they were challenged and their abusiveness towards her difficult to cope with. She took two weeks off work in late November last year and feeling somewhat better returned to work but lasted only a day or two. She said that she pulled up a chap who was extremely abusive to her and went into tears. A similar situation occurred with another person she pulled up and seeing that she was not coping she reported the situation to her Senior Sergeant. She found that she was letting people go whom she shouldn't as they were breaking the law and frequently gave up chasing them.
A couple of incidents left her feeling quite distressed. One occasion she could remember was when during a swap meet she and a colleague were surrounded by almost a hundred angry and threatening people and the tension ultimately led to a punch up between some of those people and her colleague. Then she found a recently heavily contested court case stressful and disappointing, although the offending person was finally convicted.
She said that throughout 1994 she was aware of her moodiness and irritability. She was losing her temper easily, mostly at home and banging doors. She was finding herself becoming quite shaky and hard to control her surge of adrenalin when she was required to chase and catch an offender. Quite often she gave up due to the distress and on a few occasion broke down having to give up the chase. She suffered from chest pains and pains in her stomach and loose motions during the time leading up to the court case.
……She appeared well orientated in time and place and her memory seemed intact. I could not detect any signs of disturbances in her thinking or perception.
…….
I am of the opinion that Miss Oliver has been suffering from symptoms of stress relating to her work over the last few months. She found working one up difficult as it allowed her time to think of difficult situations she was confronted with during the course of her employment. Having to deal with unpleasant, aggressive and potentially violent people over a period of time led to cumulative building up of stress and particularly so when she had no way of dissipating it through ventilating her feelings with her colleagues or through counselling…..
I feel that her condition is transient in nature and she is steadily improving. I feel that another three to four weeks of rest from work should see her well enough to be able to return to the job which she has been offered, that is with the district support group. I reckon that in three to six months in that job she would have recovered enough to return to her original duties. During this time however, I would strongly suggest that she receives psychotherapy to enable her to work through her feelings regarding her present breakdown and the effect it may have had on her self-confidence and self-esteem and develop strategies to deal with stress which is inherent in her job and be more assertive….. I strongly suggest that she continue her counselling until she is well rehabilitated and into her original job.[54]
[54] DCB 18-20.
55The plaintiff sought further treatment from Dr Tom on 18 December 1995 after having returned to TOG for 3 months. In relation to that presentation, Dr Tom’s report dated 20 March 1996 is in the following terms:
Ms. Oliver returned to work in early 1995. She was redeployed and taken off traffic operations and worked for Project Beacon. I saw her in March 1995 at which time she told me of her re-deployment.
She did not re-present until the 18th December 1995. At that time she reported that she had worked in the Plain Clothes Operations for 6 months and had managed her work very well. She had enjoyed the work and had not had any difficulties with anxiety and depression.
At the time of her presentation in December 1995 she reported that she had been pack in Traffic Operations for 3 months and that she could feel the stress mounting up again. She was having difficulty getting to sleep and then awakening at 3am and not being able to get back to sleep. She felt that these problems related quite clearly to Traffic Operations as she had experienced the same problem when previously in Traffic Operations. She was coping with this by applying for transfer jobs whenever they came up within the Police Force.
Discussion revealed that Ms. Oliver was once again significantly depressed with anxiety attacks and that her suicide lethality was very high. She did not discuss this and would only admit to it when directly questioned.
I felt that the problems related quite clearly to per work in Traffic Operations and the difficulties mentioned in the previous letter. I have referred her to Lorraine Meades, a psychologist, and she has made excellent progress. She re-presented on 9th February 1996 requesting clearance to return to work as she had a new job as Crime Prevention Officer.
……
I consider that her illness was related to her work in Traffic Operations and her difficulty in coping with the unique stresses and strains of that job.
As before Ms. Oliver has shown great motivation in returning to work and I expect that she will cope with her change of duties without the level of problems that she has suffered in Traffic Operations.[55]
[55] PCB 31-32.
56In her report dated 18 March 1996, Ms Meades stated:
Ms. Oliver presented with a Major Depressive Disorder and Panic Disorder. This injury is directly related to her employment as a policewoman in the Traffic Operations Group….for four years. Ms. Oliver's …. work role was to detect traffic offences, attend motor vehicle accidents and other traffic duties as required. She was a sole worker spending up to seven hours out of an eight hour shift alone. Given the requirement from the Police Department to issue a certain of traffic infringement notices much of Ms. Oliver's time was detecting, apprehending and processing traffic offenders. Many motorists were less that [sic] pleased to be booked and whilst Ms. Oliver has never been physically assaulted she has often been verbally and, on occasion, physically threatened. Ms. Oliver is a slight woman about 5'5" in height.
Ms. Oliver described many fatal and near fatal accident scenes that she had attended in her four years. Many of these still are vivid in her memory and she is often reminded of them in her travels. Progressively Ms. Oliver has been unable to debrief herself from experiencing distressing reactions to these scenes. As a culture the police lack understanding about the need to supply peer debriefing after, what they would regard, as ‘part of the job'. Ms. Oliver would talk with her fellow officers when possible but there was little or no support from her immediate superiors when she was feeling vulnerable and upset. Often Ms. Oliver would have to ‘go out on the road again' after a fatal and be expected to perform her normal duties.
Prior to Ms. Oliver going off sick in December 1994, she, in narrative, showed no prior psychopathology. She lives alone, by choice, in her own home. She has a good network of friends and a supportive, loving relationship with her family. She is a fit looking woman who enjoys long distance bike riding. She is a social drinker but enjoys the outdoors and often goes bushwalking or camping. In the period from December. 1994 to her current sick leave period, Ms. Oliver experienced the break-up of a significant relationship. This was upsetting for her but was not a precipating [sic] factor for the current work injury nor was it a significant part] of her injury. It exacerbated the already existent feelings of, helplessness and hopelessness [sic] and being trapped in a job that caused her pain.
Ms. Oliver was upset that her Doctor, Helen Tom and myself felt she was unable to return to her workplace, not at the time of feeling unwell nor in the future. Ms. Oliver was reluctant to take time off work even though she knew she could not continue. When she went off sick in December, 1994, om return she was assigned temporary duties on a plain clothes unit for three months. Ms. Oliver described being happy, positive and enjoying the work. When she had to return to the TOG she noticed the gradual decline in her psychological and physical wellbeing. Even with this knowledge Ms. Oliver found it very difficult to be off work and leaving her colleagues to pick up the gap she created. On her last shift with the TOG Ms. Oliver was close to deliberately driving her police vehicle into a tree. Early in the sessions there was a time when I was very concerned for Ms. Oliver. Her suicide lethality was very high.
….. On the 12th February she began work as the Crime Prevention Officer…. Ms. Oliver felt positive and pleased to be returning to work that is totally different from the TOG.
In my clinical opinion Ms. Oliver suffers from a ‘partial incapacity’ arising from the injury she has suffered as a policewoman [sic] in the TOG section. She is unable to return to this type of work. The triggers for her to have a reoccurrence of the injury are inherent in the role of a solo traffic police person. However, she is competent to perform other police duties and more probable than not, those that are operational so long as she is not isolated i.e. works with another police person and there are adequate supports. Prior to the end of her current position discussions should be held regarding her future career options away from the TOG.[56]
[56] PCB 35-37.
57A further WorkCover claim was submitted by the plaintiff on 12 February 1996,[57] claiming “anxiety relating to performance of traffic operations group duties”.[58] She had apparently been off work from 28 December 1995 until 12 February 1996.[59]
[57] DCB 68-69.
[58] DCB 68.
[59] DCB 69.
58The plaintiff returned to Dr Tom three times during 1996 (May, July and October) with depression and anxiety. On 12 December 1996 the plaintiff submitted another claim form claiming, “anxiety relating to performance of police duties first triggered when working with TOG”.[60]
[60] DCB 72.
59In a letter dated 7 October 1996, Ms Meades wrote:
Again on referral from Dr. Helen Tom I have resumed seeing Ms. Oliver in relation to depression and anxiety. Ms. Oliver is now taking an anti-depressant, Arapax, which has settled her somewhat. She has remained at work and to date is coping.
Ms. Oliver continues to need fortnightly counselling at this time.[61]
[61] PCB 38.
60In a letter dated 4 November 1996, Ms Meades indicated that the plaintiff’s treatment was directly related to the original injury that occurred on 23 November 1994.[62]
[62] PCB 39.
61In early 1997, the plaintiff apparently felt much better and sought to return to work.
62She was seen by psychiatrist, Dr Dharwadkar on 19 March 1997 who felt that she had recovered from the Adjustment Disorder which had caused her symptoms between September 1996 and January 1997 and rendered her totally incapacitated. He described the cause of her Adjustment Disorder as follows:
….The worker’s employment was particularly stressful during the period 1989 to 1994 (for details see ‘Incident Details’). She also found the Crime Prevention Officer duties stressful in the period February 1996 to June 1996, as she had to perform additional duties of co-ordinating ‘Neighbourhood Watch’ too. In my opinion the latter stressor triggered relapse of anxiety and depressive symptoms as she had not completely resolved issues related to the former stressors in the context of her experiences with the Traffic Operations Group. Hence, in my opinion the worker’s employment was a significant contributing factor to her condition.
63I note that Dr Dharwadkar took the following history from the plaintiff:
…Ms. Oliver told me that all her work stressors primarily related to her work in the Traffic Operations Group (1989 to 1994). She told me that she had to pull her firearm on two occasions and felt unsupported and had no backup and felt very threatened. On another occasion she tried to catch two people while they were speeding and had difficulties coping as these incidents triggered memories of the incident when she had to pull a firearm. She started having difficulties pulling cars up. During that time she had to attend 15-16 fatal accidents. She attended on her own, a particularly tragic motor car accident involving two deaths on 1st January 1990. She also attended another tragic motor car accident in April 1990.
She also attended a cot death of a 18 month old baby in 1992 which she found stressful. She also found the incident in 1996 when a man made false allegations in court against her, particularly distressing. She also had to deal with a violent crowd at a swap meet in Bendigo which was the final straw according to her and she went off work (WorkCover leave) for 2-3 months. Thereafter in 1995 Ms Oliver went to work in District Support Group (drug squad) for 6 months. Thereafter Ms Oliver was a keen to go back to traffic section. She couldn’t cope with the work in the traffic section and took 2-3 months (latter part 1995 to February 1996) WorkCover leave. Thereafter Ms Oliver went to work as crime prevention officer in February 96. While Ms Oliver was there, she had to work as a crime prevention officer and also look after neighbourhood watch. Thereafter the officer doing neighbourhood watch duties went on stress leave and she was asked to do predominately neighbourhood watch work which was equivalent to 2 or 3 officers work according to Ms Oliver. She was also doing crime prevention officers work as well (this lasted for approximately 4 month). Thereafter she couldn’t cope and went on WorkCover leave (October 96 to January 97), she resumed work approximately 7 weeks ago. However she has been actually working for 4 weeks, Ms Oliver believes that her predominant stress emanates from her experiences in the traffic operations group……
……..
Direct Questioning
She did report problems with the following: since 1994 (with a fluctuating intensity). However these symptoms exacerbated during the period September 96 to January 97
·Appetite decreased
·Sleep insomnia
·Memory short term memory problems
·Concentration problems with concentration
·Irrational Thoughts nil
·Voices nil
·Thoughts: thoughts of dying (no suicidal attempts)
·Mood: anxious and depressed
·Anxiety or Depression Symptoms: panic attacks, lowered motivation, decreased energy
·Libido: decreased
·Somatic Complaint. tremors, chest pain, palpitations, hot flushes
Effects on Functioning (During period September 96 to January 97)
· Family - affected her relationship with her boyfriend
· Social and Recreational - isolated because of her symptoms and lack of interest in activities
· Occupational difficulties - coping with her work
·Driving - affected adversely because of lack of concentration and also some fear of getting into a car……
Past history
History of fluctuating anxiety and depressive symptoms since 1994.
Mental State Examination
On mental state examination her affect was anxious
No evidence of delusions or formal thought disorder.No hallucinations.
……
64In a letter dated 26 May 1997, Dr Tom stated:
Please refer to my previous letter of the 20th March, 1996. At that time I felt optimistic about Karen’s return to work as she was off Traffic Operation duties and returning to a job of Crime Prevention Officer. She was planning at that time to transfer from Traffic Operations.
Unfortunately she did not progress as well as I predicted. In May she returned significantly depressed and reporting that the job she was doing was more than one person could cope with. She was advised to continue on antidepressants. I planned to see her in 2 weeks but did not see her again until the 10th July. At that time she reported once again that she wasn’t feeling well and was experiencing depersonalisation and anxiety. She had been feeling fairly well between May and July.
On the 15th October ‘96 she reported feeling very depressed. She had returned from holidays and had been given a double work load with CPA and Neighbourhood Watch. She felt this was more than she could cope with and had been suffering from anxiety attacks at work. Her psychologist Lorraine Meade [sic] was very concerned about her safety and arranged to see her fairly urgently and regularly during this time. This situation continued and Karen remained off work during October and November. She seemed to be improving but in December ’96 reported that she had had an anxiety attack when she went into work and hadn’t been able to go insane. She reported symptoms such as sitting and staring and feeling that she was going mad.
She returned in January to say that she was feeling much better and she wished to return to work. I was reluctant at first to allow her to return to Traffic Operations Group as I felt this had been the source of many of her problems in the past. However Karen has great tenacity and she had been through her diary of some years and identified many of the things which she felt were causing her anxiety.
Not only did she notice that fatal traffic accidents cause her anxiety but she felt that perhaps a greater cause of anxiety were some traumatic confrontations she had had with speeding drivers. On a number of occasions she had feared for her life. She felt that now she had identified these factors she would be able to cope better with the job in the future.
I think that this shows how Karen has been prepared to work on her problems by identifying the cause of her difficulties It was at her insistence that I cleared her for return in Traffic Operations Group. To my knowledge she has been progressing well since this time…..[63]
[63] PCB 33-34.
65The plaintiff consulted Dr Nuttall, psychiatrist, on 8 December 1999 and was certified as unfit for work from 20 December 1999 until 17 January 2000.[64] On 17 January 2000 she resigned from the police force. In her oral evidence she said she was unable to recall the history she gave to Dr Nuttall but said that Dr Nuttall encouraged her to resign.[65]
[64] PCB 40.
[65] T42.5-7.
66In August and October 2000, the plaintiff was treated for depression at the Golden City Medical Clinic and in August 2000 she was prescribed Prothiaden.
67By March 2001, the plaintiff, having been away from the police force for fourteen months, was recorded by Dr Tom as being “… much better since starting Prozac”.[66] She applied to re-join the police force on 16 August 2001 and claimed that her “health and personal issues” had “now been resolved”.[67] A medical certificate supplied by Dr Tom noted “Depressive illness intermittent since 1994 – well controlled with medication for last 9 months”.[68]
[66] DCB 89.
[67] DCB 75.
[68] DCB 76.
68The plaintiff’s application was ultimately unsuccessful, and it appears that her superiors considered that she should change her career. There is no contemporaneous medical evidence concerning her psychological condition at that time.
69The plaintiff then moved to Queensland until approximately 2007,[69] during which time she neither sought nor received treatment for any psychological ill health. Whilst there, she: undertook a Certificate IV in security; worked in crowd control and security; worked as an employment and projects manager; worked as a support worker for women in distress; and became involved with the Fundamentalist Pentecostal Church in the course of supporting women in distress.
[69] T49.18-19; T54.25.
70The plaintiff returned to Bendigo in 2006 or 2007 and continued her relationship with her new partner (Kirsty).[70] Together with Kirsty and Kirsty’s parents, she bought the freehold of a large student accommodation business called The Graduate (36 bedrooms, 9 toilets, 9 showers).
[70] T54.25-29.
71Between 2007 and 2013, the plaintiff performed mainly cleaning duties in that business.[71] She joined the Spiritualist Church in Bendigo in 2011 and participated in meditation and monthly meetings with mediums. She began spiritual writing and believed she was able to ‘channel’ spirits at meetings.[72]
[71] T56.4-5.
[72] PCB 134; T58.1-11.
72In mid-June 2013, the plaintiff began to experience auditory hallucinations and intrusive thoughts. At the time her treating GP was Dr Stoyanova at Queens Street Medical Practice.[73] She was involuntarily admitted to the high dependency unit at Bendigo Mental Health Services on 26 June 2013. She presented there with a two-week history of:
… bizarre paranoid delusions … that NASA was coming to kill her, she was being controlled by “project Ben” that she and other family members were recruited in the 1960’s had implants put into heads and have their every actions monitored. Has become aware of this since started channelling in church …[74]
[73] T72.21; T74.9.
[74] PCB 41.
73She refused to take oral medication and was secluded by staff and administered Olanzapine. The Discharge Summary included the following background:
… Past psych Hx: Depression: While in Police force – 2 suicide attempts- took her gun….practised shooting herself…Also time when she was driving too fast – and thought about crashing car….Was tried on 4 or 5 different antidepressants …
... PTSD- from work in Police attending fatal accidents – nightmares, flashbacks (particularly an accident at Big Hill) reported sexual abuse in relationship with husband …[75]
[75] PCB 43.
74One of the plaintiff’s treating psychiatrists during this admission, Dr Anne McKay, noted that this was the plaintiff’s first episode of psychosis, which involved somatic hallucinations, bizarre delusions and auditory hallucinations.[76] The plaintiff was discharged on 4 July 2013 with the diagnosis of schizophrenia, schizotypal and delusional disorders. The plaintiff was advised to continue taking Olanzapine and also to undertake psychotherapy.[77] She was discharged to the care of Dr Stoyanova.
[76] PCB 134.
[77] PCB 41, 43.
75The plaintiff said in her evidence that she only took Olanzapine for a few months and that it was ineffective and made her feel sedated.[78] Presumably over that period she was treated by Dr Stoyanova, who retired sometime between 2013 and 2017.[79]
[78] T76.14-15.
[79] T75.27-29.
76Dr Teslin Mathew, psychiatrist, reviewed the plaintiff twice in July 2013 and wrote to Dr Stoyanova on 8 and 25 July 2013.[80]
[80] PCB 57-59.
77On 8 July 2013, Dr Mathew noted that when he saw the plaintiff on 25 June, she reported “hearing voices for the past 2 ½ years – while ‘channelling”.[81] He noted a report of “no past psychiatric history but did have PTSD from working as a policewoman ... in the traffic police … which resolved with psychotherapy”.[82] He considered that she “possibly survived in the community in the past with low grade psychosis”,[83] and recommended that she continue taking Olanzapine. He considered that her presentation was “that of a resolving psychotic episode”.[84]
[81] PCB 57.
[82] Ibid.
[83] Ibid.
[84] Ibid; The body of Dr Mathew and Ms Wanklyn’s report again makes no reference to any PTSD condition
being relevant to her presentation.
78On 25 July 2013, Dr Mathew (along with Dr Sophie Wanklyn, lead clinician), noted that the plaintiff’s final diagnosis on discharge at 4 July 2013 was that of schizophrenia.[85] Dr Mathews concluded that the plaintiff presented a low risk on discharge but considered there was a future risk of deterioration of her mental state and possibility of further psychotic episodes. They recommended the plaintiff continue taking her prescribed medication and see a psychologist.[86]
[85] PCB 58.
[86] PCB 59.
79In 2014, The Graduate business was sold, and the plaintiff and Kirsty moved to Axedale.
80There is no further medical evidence until 21 December 2017, when the plaintiff presented to Bendigo Health Psychiatric Services with “exacerbation auditory hallucinations and fleeting suicidal ideation on background of ‘sleep deprivation psychosis’ 5 years ago. Karen is an ex-police officer, quit 20 years ago due to PTSD”. [87] She was lacking sleep and Temazepam was not helping.[88]
[87] PCB 61.
[88] Ibid.
81She reported that since her admission in 2013 she “has had continual persecutory auditory hallucinations since, which she states are usually manageable. She has taken courses in brain training and can distract herself with mantras. She has not found olanzapine or quetiapine helpful” for her auditory hallucinations.[89] The plaintiff was treated as an in-patient until 27 December 2017, and then discharged on Lorazepam 2 mg at night and Risperidone morning and night. She was followed up for 6 weeks by the short-term treatment team.[90]
[89] PCB 61.
[90] PCB 120.
82In early 2018, she ceased taking Risperidone and commenced using hormone replacement therapy for her menopausal symptoms.[91]
[91] PCB 134.
83On 30 January 2018, she was again admitted to the Adult Acute Unit at the Bendigo Hospital with auditory hallucinations that were threatening to kill her. She was discharged home on 8 February with home visit psychiatric follow-up.[92]
[92] PCB 45, 47.
84In early 2018, the plaintiff was reviewed as an outpatient by Dr Vattakatuchery at Bendigo Psychiatric Services.[93] In his February 2018 report, Dr Vattakatuchery noted improvement since the plaintiff’s in-patient treatment in late 2017, and recommended that she continue taking her daily anti-psychotic medication - Quetiapine.
[93] PCB 67-68.
85On 29 March 2018, Dr Laura Nield, a general practitioner with the Bendigo Adult Community Mental Health Team, wrote to the Melbourne Clinic seeking admission as soon as possible for the plaintiff, who was continuing to “experience voices which are distressing to her ... normally telling to harm herself” as well as paranoia.[94]
[94] PCB 65.
86Dr Nield noted:
Karen has a diagnosis of Schizophrenia and a past history of trauma from working in the police force in the 1990s to 2000s where she witnessed multiple fatal car accident[s].[95]
[95] Ibid.
87Dr Nield noted that the plaintiff had presented to the Electoral Office in Bendigo with paperwork she prepared describing “her theory of peoples inserting a chip into her head and stating if she hadn’t received a reply within 2 week that she would be ending her life and has a suicide plan”.[96]
[96] Ibid.
88At the time of the consultation, the plaintiff was working three days per week, reporting that it allowed her “to escape her thoughts and voices”.[97] Dr Nield felt that the plaintiff required intensive treatment beyond that which could be provided in the community, and noted that the plaintiff had signed up for private health insurance and was hoping to be admitted to the Melbourne Clinic.
[97] Ibid.
89The plaintiff then followed the advice of her nephew (a neuropsychologist), to attend the Melbourne Clinic as a private patient.[98] Her brother paid for her to do so. It appears clear that she was admitted to the Melbourne Clinic on 3 April 2018 and discharged herself the following day because of her concerns about the cost of hospitalisation.[99] An undated report from a psychiatrist at the Melbourne Clinic, Dr Zhang, who treated the plaintiff, noted that she was:
… referred for an admission at the Melbourne Clinic as recently she has become more preoccupied with the auditory hallucinations and responded to the internal stimuli by contacting various personnel and organisations with her delusional belief of a conspiracy theory involving different levels of the … Australian and American governments. The week before this admission (the plaintiff) was also very distressed by persecutory voices and talking about ending her life if authorities did not take any action …[100]
[98] T79.30-80.2.
[99] PCB 107.
[100] Ibid.
90Dr Zhang noted that the features of her history, including:
…Karen started to hear voices in 2013. Initially it was voice from her “spirit guide”, then it evolved into a very elaborated system of conspiracy involving ... governments … It also involves abduction and implant insertion by aliens.
- the onset of psychosis was in the context of her involving self in the Spiritualist Church and practising some bizarre ritualistic act of “automatic writing” to establish connections with the spiritual world.
- The onset and ongoing psychotic process are also in the context of her neurotic personality structure with strong suggestibility, and the traumas she experienced while serving Victorian police force. She was formally diagnosed as having and treated for a PTSD before.
…
- Karen was a police officer for 12 years and resigned due to PTDFD in 2000. Since the onset of psychosis, Karen has not worked until most recently she secured a 20 hour week job to work with a severely disabled client under the NDIS scheme.[101]
[101] Ibid.
91Dr Zhang noted that on admission the plaintiff was depressed because of being “harassed by ‘Frontline Abusers’, i.e. the characters of the voices she heard” and had considered suicide in the previous week.[102] Dr Zhang started her on Haloperidol. On 4 April 2018, the plaintiff requested discharge due to the cost of the hospital stay, and agreed to continue taking her anti-psychotic medication, Haloperidol 2mg twice daily, that was to be gradually increased to 10 mg per day, until reviewed by Dr Nield.
[102] PCB 108.
92The plaintiff was reviewed by Dr Vattakatuchery on 9 April 2018 and was reportedly taking Haloperidol and Quetiapine.[103] She reported hearing voices and believed the voices were caused by a chip in her head. She had been expressing suicidal thoughts. Dr Vattakatuchery diagnosed the plaintiff as suffering from a psychotic disorder, possibly schizophrenia. He noted that the plaintiff “also has a diagnosis of PTSD” but did not refer to that condition in the balance of his report,[104] which focused on her psychotic disorder.
[103] PCB 69.
[104] PCB 70.
93On 13 April 2018, Dr Vattakatuchery reviewed the plaintiff again and reported to Dr Palaypayon on 15 May 2018 that the final diagnosis was that of schizophrenia and that the plaintiff had been discharged from treatment on 100mg Quetiapine and 3mg Haloperidol.[105] However, it appears that she ceased taking her medication shortly after her discharge.[106]
[105] PCB 71-72; No mention is made of PTSD in this report.
[106] PCB 108, 134-135.
94The plaintiff obtained private health cover in May 2018. She last worked on 6 July 2018.
95On 11 July 2018, when she was due to be admitted to the Melbourne Clinic, she became agitated and absconded and was taken by police to St Vincent’s Hospital. She was not taking anti-psychotic medication. She was referred back to her general practitioner.
96On 13 July 2018, she went to police complaining of paranoid and persecutory delusions. She was involuntarily admitted to the Bendigo Hospital Acute Adult Unit under a Temporary Community Treatment Order and diagnosed with paranoid schizophrenia. On admission she had no insight and was non-compliant with medication. After treatment, her Order was varied and she was discharged home on 23 July 2018.[107]
[107] PCB 135
97The Melbourne Clinic indicated that it would only accept her as a patient if she was settled and not paranoid.[108] In a telephone follow-up on 25 July 2018 she reported that she was taking her anti-psychotic medication.[109] Her Temporary Community Treatment Order was revoked on 30 July 2018.
[108] PCB 123.
[109] Ibid.
98On 30 July 2018, Dr Vattakatuchery reviewed the plaintiff again. At that point she had been offered admission to the EMDR program at the Melbourne Clinic and on 25 August was admitted there for approximately one month. The plaintiff agreed to continue with her current medication (Risperidone and Quetiapine) and maintain connection with the Bendigo Mental Health Service. By 20 August 2018, the plaintiff was asking to reduce her Risperidone. Dr Vattakatuchery recommended instead that she cease taking Quietiapine.
99A certificate from the Melbourne Clinic indicates the plaintiff completed the EMDR program for PTSD on 21 September 2018. During her admission she had ongoing auditory hallucinations but was not distressed by them.[110] The Nursing Discharge summary noted her diagnoses as complex PTSD and schizophrenia.
[110] PCB 124.
100On 21 September 2018, Dr Zhang reported to Dr Vattakatuchery that the plaintiff preferred to attend the EMDR program rather than be treated in a general program at the Melbourne Clinic. She told Dr Zhang that she had benefitted from the EMDR program. She was still taking 2mg of Risperidone and experienced “residual positive symptoms of auditory hallucinations that usually does not bother her much at all”.[111] She also reported anxiety and panic attacks over previous weeks, and she had spent much of that time in her bedroom. She wanted to cease the Risperidone but agreed to stay on it at his request.
[111] PCB 105.
101On 19 September 2018, Ms Lee, who was the Senior Clinical Psychologist with the EMDR Program at the Melbourne Clinic, wrote to Dr Zhang to report the results of the plaintiff’s attendance at the program. Ms Lee noted in her report:
Karen was a member of Victoria Police from 1989 to 2000. During her role as a traffic police officer of 10 years, Karen was exposed to repeated trauma (road accident fatalities) and had learnt to cope with them by suppression and towards the end of her police career, dissociating from those extreme emotions. Karen has specifically identified a double fatality over New Year's Day that occurred in 1990 as her target of treatment in current EMDR admission.
Karen reported intense physiological reactions during the EMDR desensitization sessions, but persisted well towards resolution of these symptoms towards the end of each reprocessing session. She has shown much strength and courage in confronting some of past memories that she has not spoken to anyone about in the past 28 years. After the resolution of traumatic symptoms pertaining to her original target memory, Karen noted that she could recall other traffic road accidents without distress, suggesting possible generalization effects taking place. Nonetheless, her sense of helplessness persisted beyond her workplace trauma. Further exploration noted that Karen has drawn links between the current trauma work and her sense of helplessness in relation to the highly distressing situation she experienced towards the end of both her parents’ lives. EMDR desensitization sessions targeting these latter memories further reduced Karen's sense of helplessness about herself and the future.
In summary, Karen reported significant benefits of the EMDR treatment, including:
· Feeling more relaxed
· Resolution of vividness and emotional distress of traumatic memory, including subsequent road traffic incidents.
· A positive shift in cognitions associated with the traumatic event (e.g. reduced helplessness towards past traumatic memories as well as current outlook in life)
· Increased confidence and feeling more empowered about her future
I believe that Karen has responded very well to EMDR treatment. Following our discussion, it was assessed that at this juncture, another EMDR admission is not indicated. Nonetheless, Karen was happy for contacts of EMDR therapists to be provided to her so that she can reach out to them should she feels that she would benefit from further EMDR treatment. I have also encouraged her to consider engaging with a psychologist in the community to continue working on her anxiety symptoms as I believe that they are highly responsive to intervention.[112]
[112] PCB 96-97.
102Dr Palaypayon referred the plaintiff to Ms Clancy, for 8 sessions of treatment from 19 October 2018.[113] By that time, the plaintiff had reduced her dose of Risperidone to 1 mg daily and had stopped taking quetiapine 50 mg at night.
[113] PCB 109.
103Ms Clancy wrote on 17 July 2019 that the plaintiff “has a diagnosis of PTSD arising from police incident exposure endured throughout her career as a Victorian Police Officer. Her condition appears to have been in remission for a prolonged period, yet with the onset of menopause – triggering psychosis, the symptoms of PTSD have re-emerged”.[114] Ms Clancy noted that the PTSD symptoms had reduced after her one-month admission to the Melbourne Clinic, but she needed “continued psychological support”.[115]
[114] Ibid.
[115] Ibid.
104The plaintiff was reviewed by Dr Vattakatuchery in late September and on 17 December 2018, and he wrote to Dr Palaypayon after each review. On 1 October 2018, Dr Vattakatuchery wrote that after completing the EMDR program the plaintiff had ceased taking her anti-psychotic medications.[116] He warned her of the “high risk” of the re-emergence of psychotic symptoms.[117] On 20 December 2018, he wrote that the plaintiff reported that her inpatient treatment with EMDR had apparently helped with the PTSD symptoms and that she had ceased having delusional thinking, although “she continues to hear voices but the voices are faint and she is not bothered by the voices and she dismisses them”.[118] She was continuing to see Ms Clancy for psychological treatment for her ongoing symptoms such as “free floating anxiety … nightmares and intrusive memories about past traumatic events”.[119]
[116] PCB 75-76.
[117] PCB 76.
[118] PCB 77.
[119] Ibid.
105He noted that the plaintiff’s account of the onset of her psychotic symptoms in relation to psychological trauma was that she had never had psychotic symptoms until “she first started having auditory hallucinations in 1990’s … after she witnessed severe traumatic events in her job as a police officer”.[120] Dr Vattakatachury again counselled the plaintiff about the high risk of relapse of psychotic symptoms if she did not take any anti-psychotic medication.
[120] PCB 78.
106By mid-December 2018, she had stopped taking Risperidone. She and her partner were sceptical about the diagnosis of schizophrenia and decided to embark on a trial without anti-psychotic medication.[121]
[121] PCB 125.
107In his first report dated 30 May 2019, Dr Epstein took a history from the plaintiff that she was sleeping well, doing some housework, looking after 19 rescue cats, reading, watching TV, and doing the shopping. She was having nightmares “two nights per week with themes of being frightened in various scenarios”.[122] She was not socialising as much as she used to. She was feeling flat most of the time but with no active suicidal thoughts. She was having panic attacks twice per week and was anxious away from home and in crowded places. She continued to experience “quiet nonintrusive auditory hallucinations that she does not find distressing”.[123] She was seeing Ms Clancy monthly.
[122] PCB 126.
[123] Ibid.
108Dr Epstein’s opinion was expressed in the following terms:
Karen Oliver was a Senior Constable in the Victoria Police Force between 1988 and 2000. During that time she was exposed to a number of distressing events whilst doing patrol work with the Traffic Operations Group based in Bendigo. It was in that context that she developed symptoms of a chronic Post Traumatic Stress Disorder associated with Panic Disorder and some Agoraphobia.
Her quality of life became diminished and her capacity for coping became more limited.
Since leaving the Police Force her capacity for coping has remained quite limited and she has not been able to resume full-time work in the same capacity as she had been doing prior to ceasing work in the Police Force.
She had had some psychological counselling and had significant support from her current partner, having been with her since 2004.
She had tried working full-time including operating a speed camera but was unable to cope with the demands of that job and had to quit after six months.
She subsequently developed symptoms of a paranoid psychosis with delusions and distracting and intrusive auditory hallucinations during 2013 that appeared to settle down but recurred in November or December 2017. In the meantime she had been experiencing low grade auditory hallucinations but they became much more intense in late 2017 and she subsequently had several hospitalisations.
Her last time in hospital was for an intensive EMDR program that was to assist her to cope with her symptoms of Post Traumatic Stress Disorder. She has continued to have psychological counselling with a psychologist experienced in using that technique and has found that beneficial.
She had remained on a variety of medication for psychosis and depression but ceased all that in January 2019 and since then has been only taking temazepam intermittently to help her with sleep. There appears to have been no recurrence of her frank psychosis but she continues to have mild and nonintrusive auditory hallucinations and appears to cope with these.
Her capacity for coping remains very limited and will not improve in the foreseeable future. She has a severe psychological disability arising from her chronic Post Traumatic Stress Disorder.
I am uncertain as to the relationship between her chronic Post Traumatic Stress Disorder and her paranoid psychosis. In my view the major factor she is now dealing with arises from her chronic Post Traumatic Stress Disorder and the paranoid psychosis currently plays little part in reducing her capacity.
The motor vehicle accident on 1 January 1990 appears to have been a significant factor in initiating her Post Traumatic Stress Disorder that was exacerbated by various other traumatic events she experienced during the course of her employment with the Victoria Police Force.
There appear to be no other factors in her life that could have contributed to the development of her chronic Post Traumatic Stress Disorder other than those arising from her employment.
She is unfit to return to work in any capacity and this is unlikely to change in the foreseeable future. She could never return to work in the Police Force. In my view she was unfit for her pre-injury duties from the time she ceased work with a WorkCover claim in October 1996. She forced herself to go back to work.
Her quality of life has diminished markedly since the time she left the Victoria Police Force and probably even before that time. There has been some improvement but her quality of life remains quite limited and is unlikely to improve.
Her prognosis for improvement is poor. She does require ongoing psychological counselling on a monthly basis if only to prevent further deterioration. This should continue indefinitely and certainly at least for the next twelve months.[124]
[124] PCB 129-130.
109On 14 August 2019, Ms Lee reported to the defendant’s insurer that she had seen the plaintiff again on 11 July and 9 August 2019.[125] The plaintiff reported that over recent months she had experienced an “increase in flashbacks and intrusive memories of past critical incidents she had attended to during her police work, partly due to her recent assessment with a psychiatrist who had inquired into her past work trauma history”.[126]
[125] PCB 99
[126] PCB 100
110Ms Lee noted the background to her current presentation as follows:
Background of current engagement
According to Karen, she has attended numerous critical incidents during which she had experienced physical and emotional threats to her life in the course of her duty as a law enforcer in the Police force. Karen revealed that the effects of cumulative trauma had started taking a toll on her psychological wellbeing in the last few years of her police career. Her mental state continued to decline over time until she eventually left the police force in 2000 due to her persistent struggles with recurrent flashbacks, leading to suicidal ideations and severe anxiety symptoms that prevented her from being effective in her work. This left Karen with much embarrassment and guilt (for not “coping”), which further exacerbated her depressive and anxiety symptoms in subsequent years. Without effective treatment and early recognition of her complex trauma symptoms, Karen continued to struggle in her mental health condition. In 2013, she started experiencing a series of psychotic symptoms (auditory hallucination and paranoia delusions) that had led to bizarre behaviours (e.g., writing letters to authorities to reveal counter terrorism activities). Such behaviours resulted in further embarrassment and loss of reputation for Karen. It was around that then that Karen receives treatment for her psychotic symptoms and received formal diagnosis for her underlying complex posttraumatic stress symptoms.
Karen was subsequently referred by her treating psychiatrist to a 4-week inpatient EMDR program at the Melbourne Clinic around end August 2018. During which, she attended daily group programs and twice a week individual sessions to work on her trauma symptoms. During her admission, the author was Karen’s assigned EMDR therapist. Karen struggled to remember much of her past traumatic memories as she was struggling with moderate level of dissociative symptoms. However, she could identify one specific memory that had a significant impact on her and for which she continued to experience flashbacks and intrusive memories of. Thus, we focused on processing that incident during her admission in 2018, while continuing to support Karen in further emotional stabilisation work. This include strengthening her coping skills to manage recurring flashbacks/intrusive memories and mindfulness and grounding skills to help her reduce her dissociative symptoms. Karen responded well to that treatment then, although it was acknowledged that her posttraumatic stress symptoms were not completely resolved considering the number of critical incidents she had attended to in her law enforcement work and that some of these past traumatic memories have been suppressed or were fragmented as part of her PTSD symptoms.
In July 2019, Karen approached the author for further EMDR work as she reported increased flashbacks and intrusive memories of many other critical incidents following her consultation with a psychiatrist in May 2019 who had inquire into her trauma experiences while she was with the Police force. Karen also shared that since her last EMDR work with the Melbourne Clinic, she has stopped her antipsychotic and finds herself functioning better. She reported that while she still experiences depressive and anxiety symptoms, she finds herself able to think clearer and gained better insights into the links between her mental health symptoms and her past traumatic experiences. However, her recent consultation with the psychiatrist has brought up many past traumatic memories that she had suppressed. This resulted in an increase in flashbacks, intrusive memories, nightmares and an increased sense of hypervigilance. Thus, Karen expresses her wish to commence further trauma processing work to help her overcome these past traumatic experiences.[127]
[127] PCB 100-101.
111Ms Lee diagnosed the plaintiff with PTSD, which was related to “traumatic events” in her work as a policewoman.[128] She also diagnosed “extremely severe level of depressive symptoms, and moderate level of stress and anxiety symptoms” which she felt flowed from “her complex PTSD symptoms”.[129] Although she reported some improvement in functioning after her EMDR treatment, her PTSD symptoms had continued to result in “significant distress and impairment in various domains of Karen’s life (social, familial, occupational, practical living) … She had not been able to return to work for many years as a result of this …”.[130] The plaintiff wished to continue EMDR treatment with Ms Lee as an outpatient “to process her remaining traumatic experiences” and Ms Lee agreed to this course.[131] Ms Lee felt that such treatment would take nine months to one year.
[128] PCB 101.
[129] Ibid.
[130] Ibid.
[131] Ibid.
112Ms Lee saw the plaintiff on 28 November 2019 and then took eight weeks’ leave. She next saw her on 6 March 2020 and noted that over the previous three months the plaintiff had had an exacerbation of her mental health symptoms,[132] during which she experienced a psychotic episode requiring hospital treatment. She was embarrassed and humiliated by the way she was treated during her psychotic episode when she was restrained by a CAT team. Ms Lee noted that the plaintiff declined anti-psychotic medication, and proposed further treatment sessions. According to the history given to Dr Epstein,[133] her symptoms worsened after the start of the COVID-19 pandemic.
[132] PCB 103.
[133] PCB 136-138.
113Although Ms Lee has continued to treat the plaintiff on a regular basis, there are no further reports from her.
114At the request of her solicitors, the plaintiff was assessed by Dr Handrinos by video-conference on 1 April 2020 and then in person on 28 May 2020. He took a history from her that the Big Hill accident was traumatic for her and “has remained so to the present day” and that since then she had trouble coping with traumatic incidents.[134] She told him that she experienced periods where she freezes, and described these as seizures, although they had not been investigated. She told him she did not experience flashbacks or any specific avoidance symptoms, although on the second assessment, she said that she avoided driving in places in rural Victoria close to scenes of accidents she had attended, including the scene of the Big Hill accident. She described hearing a negative voice that yells at her, but since “studying and reading about post traumatic symptoms … has come to appreciate that these voices are ‘trauma based intrusions’”,[135] and told him she had “made connections between the content of the voices and traumatic and violent aspects of her work with Victoria Police”.[136] She said the voices had improved since she stopped anti-psychotic medication. She said she was having EMDR to focus on specific incidents at work.
[134] PCB 149.
[135] PCB 152
[136] Ibid.
115Dr Handrinos opined that she developed PTSD “while working for Victoria Police”,[137] that she was able, with treatment, to keep working while symptomatic, until 2000, when she resigned. He felt that she presented with “highly complex” symptoms which “are consistent with PTSD”,[138] and some of which are “suggestive of atypical psychotic symptoms occasionally seen in some people with PTSD”.[139] He considered it unlikely that she suffered from a schizophrenic illness but felt that the psychotic illness that emerged in 2013 was “likely to be in part caused by the work injury”.[140] He felt that the PTSD arose in the 1990s “while working for Victoria Police”.[141] He considered that she currently had no work capacity.
[137] PCB 154.
[138] Ibid.
[139] PCB 155.
[140] Ibid.
[141] PCB 156.
116A/Professor Doherty examined the plaintiff on 8 April 2021 and reported to the defendant’s solicitors on 29 April 2021.[142] The plaintiff told him that she had been to head on collisions before the Big Hill accident where she had seen death, but that the Big Hill accident “got” to her because it involved children.[143] She took no time off and did not approach police welfare. She mentioned another fatal collision she attended in April 1990. She told him that since the Big Hill accident she had been “‘on automatic pilot’”.[144] She mentioned stressors including a court case in 1994, being depressed in 1995, taking a break from the TOG, and that she was “a wreck by 2000”,[145] wanting to kill herself. She resigned at that point. She told him she recovered, and felt she was well enough to reapply, but was unsuccessful. She told him about her flares up of psychosis in 2013 and 2017.
[142] DCB 42-53.
[143] DCB 44.
[144] Ibid.
[145] DCB 44-45.
117She told him she first heard voices in 1996 or 1998, and that the voice was present in 2013. She ceased working in 2018. In 2020 her partner left work because the plaintiff was suicidal again. She referred to hearing a single voice, and other voices, from inside her brain. She told him she “does not believe the voices” and “now has some insight”.[146] She told him that hearing voices “is part of dissociation”,[147] and that non-epileptic seizures had been occurring intermittently since 2018, even during EMDR treatment.
[146] DCB 46.
[147] DCB 47.
118A/Professor Doherty opined that there is little evidence to support the diagnosis of PTSD and that the “symptoms currently present are those of a persistent psychosis, in which features of traumatisation from her past employment experiences are present”.[148] He considered that “there is a diagnosable psychotic condition, probably of schizophrenic origin, that is unrelated to the plaintiff’s experiences in employment with VicPol”.[149] The psychotic condition is marked by the hearing of vocal auditory hallucinations. She has ceased taking anti-psychotic medication and there is “partial insight, and impaired judgment”.[150]
[148] DCB 51.
[149] Ibid.
[150] DCB 52.
119A/Professor Doherty opined that any depressive disorder relevant to employment issues between 1990 and 2000 had “remitted some time ago”,[151] when she sought re-employment to the Police force. She then had alternative employment until 2013, when there was the onset of the psychotic condition, which was unrelated to her work in the Police Force. Since then, there has been a decline in her social functioning. He concluded:
An unrelated psychiatric condition emerged by 2013. She requires ongoing treatment. The prognosis is not good and unfavourable. She has a persistent psychotic condition. She is not being treated by a psychiatrist. She does not take antipsychotic medication now, having ceased such medication in 2019. There is no likelihood of a remission of the vocal auditory hallucinations without the use of antipsychotic mediation. It is likely that an exacerbation of her psychotic condition will occur at some time in the future.
My opinion is that the plaintiff would prefer treatment for PTSD, as if she has that, and is not insightful into the need for ongoing treatment for the psychotic condition. Thus, the recent focus on PTSD treatment. In my view that treatment will lead to no useful outcome. The plaintiff may wish to explain herself as suffering from PTSD, but the evidence for the presence of such does not bear much scrutiny.[152]
[151] Ibid.
[152] DCB 52-53.
120In a further report dated 26 March 2021, Dr Epstein noted the plaintiff’s report to him that she “had been reading about complex post-traumatic stress disorder and she believed her auditory hallucinations were strongly linked to her trauma experiences”.[153] She had a few Zoom meetings with Ms Lee during lockdown but did not find them as useful. He noted that the plaintiff reported deep distress at the death of four police officers in a traffic accident on 27 April 2020 and that it caused her to experience flashbacks to various events she had experienced.[154] The plaintiff was also distressed by her sister’s illness and death in October 2020. The plaintiff reported that since resuming EMDR sessions in person with Ms Lee in December 2020 her ‘voices’ had been less intense, and she had felt less out of control.[155]
[153] Ibid.
[154] PCB 137.
[155] Ibid.
121Her current condition was similar to when she was last examined by him. She no longer had flashbacks. She was able to stop recurrent intrusive memories of events at work. She still “hears one male voice that is always present to some degree and varies from a faint murmur to a loud derogatory voice that refers to events in the Police Force. She knows then that she is sick”.[156] She has panic attacks twice per month and is still anxious away from home and in crowds, but wishes she was still in the Police Force. She continues to see Ms Lee weekly or fortnightly.
[156] PCB 139.
122Dr Epstein’s opinion was in the following terms:
Karen Oliver has developed severe mental health issues that appear to have arisen from her experiences in the Victoria Police Force. She was a Senior Constable in the Victoria Police Force between 1988 and 2000. During that time she was exposed to a number of distressing events whilst doing patrol work with the Traffic Operations Group based in Bendigo. The motor vehicle accident on 1 January 1990 appears to have been a significant factor in initiating her Post Traumatic Stress Disorder that was exacerbated by various other traumatic events she experienced during the course of her employment with the Victoria Police Force.
It was in that context that she developed symptoms of a chronic Post Traumatic Stress Disorder associated with Panic Disorder and some Agoraphobia.
Since 2021, having resumed ongoing treatment with her psychologist, her symptoms have improved but she remains severely disabled.
There appear to be no other factors in her life that could have contributed to the development of her chronic Post Traumatic Stress Disorder other than those arising from her employment.
She is unfit to return to work in any capacity and this is unlikely to change in the foreseeable future. She could never return to work in the police force. In my view she was unfit for her pre-injury duties from the time she ceased work with a WorkCover claim in October 1996. She forced herself to go back to work.
Her quality of life has diminished markedly since the time she left the Victoria Police Force and probably even before that time. There has been some improvement but her quality of life remains quite limited and is unlikely to improve significantly.
Her prognosis for improvement is poor. She does require ongoing psychological counselling on a regular basis for at least the next two years as it has led to some improvement in her mental state but her prognosis for significant improvement remains poor.[157]
[157] PCB 141-142.
123On 20 May 2021, Dr Epstein commented on the report of A/Professor Doherty dated 29 April 2021.[158] He disagreed with A/Professor Doherty’s opinion that the plaintiff suffers from psychosis, and that there is no diagnosable PTSD condition currently present.[159] Dr Epstein considered that the plaintiff “does manifest symptoms consistent with chronic PTSD”,[160] citing the distress and “flashbacks to various events” that she experienced in April 2020.[161] Dr Epstein considered that the plaintiff’s mental health issues have arisen in the context of her employment, with a current diagnosis of chronic PTSD “and had had features of a paranoid psychosis but at the time she was last seen there was no manifestation of that although she did have pseudohallucinations”.[162]
[158] PCB 144-147.
[159] PCB 145.
[160] Ibid.
[161] Ibid.
[162] Ibid.
124The recent report from Dr Palaypayon dated 10 June 2021 noted that the plaintiff suffers from schizophrenia and PTSD.[163] Her opinion is that the PTSD is “… as a result of repeated trauma (road accident fatalities exposure) she experienced while working with Victoria police from 1988 to 2000”.[164]
[163] PCB 187.
[164] Ibid.
Legal Principles
125Where there is a claimed injury with a multiplicity of causes, it is incumbent upon the plaintiff to prove that the injury complained of is a result of the transport accident and has the necessary consequences to satisfy the requirements of the statutory definition of serious injury.[165]
[165]AG Staff Pty Ltd v Filipowicz [2012] 34 VR 309, [31]-[35]; Lexa v Transport Accident Commission [2019] VSCA 123, [69]-[70].
126In this regard, it is not enough for the plaintiff to show that the transport accident was one of multiple causes of the claimed injury and subsequent consequences,[166] nor that it was a minor contribution to that injury.[167] Nor is the plaintiff permitted to argue that, “but for” the Big Hill accident, the plaintiff would not have gone on to develop her present psychiatric condition.[168]
[166] Rowe v TAC [2017] VSCA 377 [82].
[167] Ibid [86].
[168]Ibid [82]-[86]; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249 [58]-[62]; Lexa v Transport Accident Commission [2019] VSCA 123 [69]-[70]; RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51.
Findings and reasons
127I found the plaintiff to be a genuine and articulate witness. However, I consider that the reliability of the histories she has given to doctors since September 2018 has been affected by her resistance to the diagnosis of psychosis (notwithstanding that each of her hospital admissions has ended with confirmation of that diagnosis and with relief of her symptoms through treatment with anti-psychotic medication), and her fixed belief since undergoing EMDR treatment at the Melbourne Clinic in August 2018 that she has suffered from PTSD, and not psychosis, and that she has suffered PTSD since the Big Hill accident.
128One example of the difficulty caused by this reinterpretation concerns the history of auditory hallucinations given by the plaintiff. In 2013, when urgently admitted to hospital, she gave a two-week history of auditory hallucinations. Nothing in the material tendered before that date mentions auditory hallucinations. More importantly, none of the voices or psychotic symptoms reported during her admissions in 2013, 2017, and 2018 included any mention of her police work or of the Big Hill accident. Yet, she told Dr Handrinos in May 2020 that the Big Hill accident was and had remained traumatic for her;[169] that since “studying and reading about post traumatic symptoms”,[170] she had “come to appreciate that these voices are ‘trauma based intrusions” … [connected] with traumatic and violent aspects of her work with Victoria Police”.[171]
[169] PCB 149.
[170] PCB 152.
[171] Ibid.
129I consider that the plaintiff has reinterpreted her own mental health history and the stressors in it through the lens of her belief as to her appropriate current diagnosis, that of PTSD (and not psychosis), and her conviction that her PTSD resulted from the Big Hill accident. I consider that this reinterpretation has coloured the reliability of the histories given to Dr Handrinos, Dr Epstein and A/Professor Doherty. I have therefore given more weight to the histories given by the plaintiff to treating doctors and psychiatrists prior to August 2018.
130I consider on the medical evidence that, as at the date of the hearing, the plaintiff has a mental illness or disorder which has had significant adverse consequences to her ability to function occupationally, socially, and emotionally. On the evidence, that mental illness or disorder comprises two distinct conditions.
131The first condition is that of schizophrenia or psychosis. I accept the opinions of all the psychiatrists who treated the plaintiff during her various urgent hospital admissions with psychosis, as well as the recent opinion of A/Professor Doherty, that the plaintiff suffers from a persistent psychosis, probably of schizophrenic origin, that is unrelated to the plaintiff’s employment or to the Big Hill accident. I accept that the condition in her case is marked by the hearing of vocal auditory hallucinations. The plaintiff has ceased taking anti-psychotic medication, and I accept the conclusion of A/Professor Doherty that she has “partial insight, and impaired judgment”.[172]
[172] DCB 52.
132The second condition which the plaintiff suffers, as at the date of the hearing, according to Ms Lee (who currently provides psychological treatment to the plaintiff but whose last report was in August 2019), Dr Palaypayon and Dr Epstein, is that of PTSD. In reaching this diagnosis, as can be seen from the extracts of their reports referred to at paragraphs 51 to 124 above, the cause of her condition is said to be numerous traumatic incidents (including the Big Hill accident) the plaintiff experienced when working with the TOG of Victoria Police between 1989 and 2000.
133The same may be said of the medical and other evidence from the mid-1990’s. Leaving aside the then diagnosis of her condition as one of depression and anxiety, each of the opinions of that period refers to the identification by the plaintiff of an extensive list (including the Big Hill accident) of traumatic or stressful events experienced during her work with the TOG.
134There is a complete absence of medical or psychological evidence concerning the plaintiff’s condition between 2000 and 2013, when the hospital admissions with psychosis began. On the one hand, the plaintiff’s evidence was that she was not receiving any treatment. She appears to have worked for a number of years. If, as she said in cross-examination, she struggled during the last few years before 2013 to do much work, the cause of that difficulty, from a psychiatric perspective, is completely unknown.
135However, even assuming for the moment that the plaintiff’s PTSD persisted during the years 2000 to 2013 when she did not receive any psychological or psychiatric treatment and was working, and that since 2018 it has re-emerged and remains chronic, I consider that, taken at its highest in favour of the plaintiff, the weight of the evidence in relation to PTSD goes no further than establishing that any PTSD condition currently suffered by the plaintiff is as a result of the accumulated stressors of her work as a police officer as set out in detail in the documents authored by the plaintiff herself.[173]
[173] DCB 82-86.
136The fact that the plaintiff has preferred to be treated for PTSD in 2018 and nominated the Big Hill accident as the focus of her 2018 treatment is not determinative.
137I note that each of the psychological and psychiatric reports, even where the plaintiff specifically mentioned the Big Hill accident,[174] refers to the issues being the plaintiff’s exposure over a number of years to: “police incident exposure endured throughout her career”;[175] “repeated trauma (road accident fatalities)”;[176] “past traumatic events”,[177] verbal assaults when apprehending offending motorists,[178] attending “many fatal and near fatal accident scenes”,[179] “traumatic confrontations with … speeding drivers”,[180] “flashbacks and intrusive memories of past critical incidents”,[181] “cumulative trauma”;[182] “exposed to a number of distressing events whilst doing patrol work”;[183] PTSD arose in the 1990’s “while working for Victoria Police”.[184]
[174] PCB 29; DCB 26.
[175] PCB 109.
[176] PCB 96.
[177] PCB 77.
[178] PCB 35.
[179] Ibid.
[180] PCB 34.
[181] PCB 100.
[182] Ibid.
[183] PCB 129.
[184] PCB 156.
138Only Dr Epstein in March 2021 opined that the Big Hill accident “appears to have been a significant factor in initiating her PTSD that was exacerbated by various other traumatic events she experienced during the course of her employment with Victoria Police”.[185] However, when one looks closely at his report, Dr Epstein opined that the plaintiff has developed severe mental health issues that appear to have arisen from her experiences (emphasis added) in the Victoria Police Force.[186] This conclusion is repeated in May 2021, when Dr Epstein concluded that the plaintiff’s mental health issues had all arisen in the context of her employment with Victoria Police.[187]
[185] PCB 141.
[186] Ibid.
[187] PCB 145.
139Having regard to all the other stressors which arose during the course of the plaintiff’s employment with Victoria Police, and given the state of the evidence before me, I am not satisfied that the Big Hill accident has made more than a minor contribution to the plaintiff’s current psychiatric injury.
140Moreover, given the onset of a psychotic condition in 2013, which continues to produce symptoms by way of auditory hallucinations (albeit that the plaintiff does not find them disturbing at present), and the fact that this condition is not treated with medication and is, on the psychiatric evidence, liable to relapse, on the material before me I am unable to be satisfied as to the extent to which any of the claimed reduction in functioning and enjoyment of life is caused by this condition or by the plaintiff’s PTSD.
Conclusion
141The application for leave to extend time is refused.
142The plaintiff’s application for leave to issue common law proceedings is dismissed.
143I reserve the question of costs.
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