Scapicchio v Tooradin and District Sports Club Inc; Scapicchio v Hastings Cricket and Football Social Club Inc
[2017] VCC 922
•10 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-02796
CI-16-02798
| MICHAEL SCAPICCHIO | Plaintiff |
| v | |
| TOORADIN & DISTRICT SPORTS CLUB INC | First Defendant |
| and | |
| HASTINGS CRICKET AND FOOTBALL SOCIAL CLUB INC | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 and 22 June 2017 | |
DATE OF JUDGMENT: | 10 July 2017 | |
CASE MAY BE CITED AS: | Scapicchio v Tooradin & District Sports Club Inc; Scapicchio v Hastings Cricket and Football Social Club Inc | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 922 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Plaintiff employed by first defendant in 2001 – employed by second defendant in 2013 – subjected to a violent armed robbery when employed by first defendant – subjected to a violent brawl when employed by second defendant – developed probable subclinical symptoms of trauma as a result of the robbery – whether, as a result of the brawl, a PTSD declared itself, rendering first defendant responsible for the PTSD and its consequences – whether the plaintiff suffered an aggravation of the probable subclinical symptoms of trauma resulting from his employment with the first defendant or a new injury, being a PTSD and Depression – whether the declaration of the PTSD and the new injury render the first defendant and second defendant responsible for the one injury and its consequences – if not, whether the consequences of the aggravation are “severe” in terms of pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1VR 436; Jones v Dunkel (1959) 101 CLR 289
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr G Coldwell | Shine Lawyers |
| For the First Defendant | Mr J Gorton QC with Mr M J Hooper | Wisewould Mahony Lawyers |
| For the Second Defendant | Mr D Masel SC with Ms C Spitaleri | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-four-year-old married man who has suffered a Major Psychiatric Disorder which he alleges arose out of, or in the course of, or due to the nature of, his employment with Tooradin & District Sports Club Inc (“Tooradin”) and/or Hastings Cricket and Football Social Club Inc (“Hastings”).
2 The plaintiff filed two Originating Motions, both on 30 June 2016. The first is proceeding number CI-16-02796 against Tooradin. The second is proceeding number C1-16-02798 against Hastings.
3 Mr R McGarvie QC appeared with Mr G Coldwell of counsel for the plaintiff. Mr J Gorton QC appeared with Mr M Hooper of counsel for Tooradin. Mr D Masel SC appeared with Ms C Spitaleri of counsel for Hastings.[1]
[1]Tooradin and Hastings provided individual Court Books. In the course of referring to parts of their Court Books, they will be referred to as “Tooradin DCB” and “Hastings DCB”, followed by the page reference or exhibit number
4 The two witnesses who were required for cross-examination were the plaintiff, and Dr Kruk, psychiatrist.
What the Plaintiff seeks
5 The plaintiff submitted that his employment with Tooradin, and then with Hastings, has contributed to the claimed psychiatric injury, and that the consequences of it are “severe”. Therefore, I should grant the plaintiff leave to bring a proceeding against both Tooradin and Hastings.
6 Tooradin denied that the plaintiff’s employment with it contributed to the claimed psychiatric injury. Hastings made the same denial. Both submitted that if I was satisfied that one or both of them were responsible for the infliction of it, then the plaintiff’s pain and suffering consequences and loss of earning capacity consequences could not meet the statutory test of seriousness.
Employment with Tooradin
7 The plaintiff commenced full-time employment as a gaming supervisor with Hastings in 1998. In about 2000, he commenced part-time employment with Tooradin, doing one or two shifts per week in its gaming room.
8 On 9 May 2001, the plaintiff was working at Tooradin when an armed hold-up occurred. In his first affidavit sworn 4 February 2016, he described what occurred as follows:
“On or about 9 May 2001 while working at the Tooradin and District Sports Club I was the victim of an armed hold up. It happened at approximately 10.50 pm as I was finishing up a shift. Two masked thugs stormed into the gaming room and demanded money. One was armed with a sawn-off shotgun and the other wielded a knife. Their shouting at erratic behaviour demonstrated a determination that was clearly not to be messed with. I was forced at gun point to the till, to the coin safe and then onto the ground. I was convinced I was going to be killed. ‘I’m a family man, I have a child’ was all I could whimper. I remember being petrified that my co-worker Deb, who was in the adjoining members’ bar would walk in and startle the men, setting off a shower of bullets. Finally, after what seemed like forever, the men left.”[2]
[2]Plaintiff’s Court Book (“PCB”) 18
9 Under cross-examination by Tooradin, the plaintiff added that one of the robbers was armed with a knife. At a point during the robbery, he held it to the plaintiff’s neck.[3] Later, under re-examination, the plaintiff corrected himself, and stated that the knife and been pointed at him, not held to his neck.[4]
[3]Transcript 35
[4]Transcript 138
The effect upon the Plaintiff
10 I will firstly summarise and analyse the evidence to determine whether the plaintiff’s employment with Tooradin resulted in the infliction of a psychiatric injury.
11 In the plaintiff’s first affidavit, he described the consequences of the robbery as follows:
“10.The police arrived. I was shaking but surprisingly lucid. I went home but my mind was still abuzz.
11.The next day as I had not slept. Karen urged me to go and see my General Practitioner, Dr Keilor at the Hastings Medical Centre. I did but he was not much help.
12.I took the next couple of days off, returning to work at Hastings later in the week and Tooradin the next. I thought the quicker I got back to my normal routine the sooner I could put things behind me.
13.It wasn’t so simple. I really struggled. I felt edgy all the time. After a couple of weeks I telephoned the counselling service that was offered by the Hastings Sports Club as part of its Employee Assistance Scheme and met with a Counsellor. She assured me that what I was going through was normal and I just needed time. I only saw this Counsellor once and cannot recall her name.
14.…
15.After the robbery the Tooradin and District Sports Club employed a Security Guard. Despite this I never felt safe there. In fact I resigned a couple of months later when the Security Guard refused to help me evict three rowdy patrons, proving to me that I remained unprotected.
16.I continued working at the Hastings Cricket and Football Social Club, albeit on edge. Sudden noises reminded me of the hold up and just the sight of someone wearing a beanie triggered memories of the robbers’ getup. I was at sea. Instead of chattering away with the punters like I used to, I kept to myself and counted down the minutes until the end of each shift.
17.I was also a completely different person at home. I withdrew from Karen, preferring to be my myself. I was ashamed that I was not ‘man enough’ to get over things.
18.I sought solace by working on my house. It was the only thing that settled me. I would spend hours painting or gardening. I even picked up an extra day’s work as the Hastings Club’s Gardener and Handyman to further distract myself.
19.I experienced regular panic attacks where my heart raced and I would struggle to breathe. I battled getting to sleep and ruminated a lot about the events and what had become of me.
20.I continued this way over the next ten years. I did not seek treatment. Despite what people say, I found that talking about things made me feel worse. I saw no point in undertaking therapy. I was determined that, rightly or wrongly, distraction was the key.”[5]
[5]PCB 18-20
12 The plaintiff conceded that he had very little medical treatment for the consequences of the robbery. He saw a counsellor, who told him that his reaction to the robbery was normal for what he had experienced.[6] He saw a medical practitioner on 28 May 2001. The clinical notes of that medical practitioner record that the plaintiff felt stressed on returning to his workplace. He was reviewed on 9 June 2001, when he informed the medical practitioner that he was “feeling much more settled”.[7]
[6]Transcript 29
[7]Tooradin DCB 11 and Transcript 30
13 Under cross-examination by Tooradin, the plaintiff was challenged about the impact of the robbery. He conceded that he continued working at Tooradin. He continued fishing. He felt safe in his home after locking the doors. He did not go out to staff social occasions, describing his engagement in social outings as becoming a bit more withdrawn.[8]
[8]Transcript 35-37
14 Under cross-examination, he said he was coping, but he added that he was having dreams, and when he saw people wearing beanies or witnessed loud behaviour, he was reminded of the robbery.[9] He also developed a phobia of knives. He gave an answer which seems to me to encapsulate his evidence of the impact on him of the robbery:
[9]Transcript 34-35
Q:“Just finally, Mr Scapicchio, what I want to get your views on is this, is that you had this frightening robbery and it caused you some stress for a matter of weeks or months but you then got over that, although in a sense although you might be upset if you were reminded of it by something like seeing someone in a beanie, you essentially got back to running your full life working, fishing, going out and about and that that state continued for ten years or so until this girl came into the Hastings place and accused you of sexual assault?---
A:… My whole life changed. I became more vigilant, I became more anxious, but just because I didn’t go - just because I didn’t follow it through doesn’t mean I wasn’t coping with it (sic) that was just how it was in my life. It made me more aware, more vigilant about where I was and what my surroundings were.
Q:So more alert to dangers?---
A:Yes - well, more alert to people yelling and screaming. It made me cower a bit, it made me pull back, I wasn’t as confident anymore, I was more - I was just - I felt intimidated all the time. I should have got out of the industry a long time before that but I didn’t.”[10]
[10]Transcript 59-60
15 One of the consequences contended for by the plaintiff following the robbery was the cessation of his part-time work with Tooradin. He believed that he ceased working for Tooradin a matter of months after the robbery. Under cross-examination, he repeated the same answer, although his taxation returns demonstrated that from that part-time employment, he earned $4,805 for the year ending 30 June 2001, $4,783 for the year ending 30 June 2002, and $3,322 for the year ending 30 June 2003. It is clear from the admission made by the plaintiff that he in fact did earn those amounts from that employment, and that his initial answers were wrong.
16 One of the many questions raised by Tooradin was whether I should accept the plaintiff’s evidence that he was as troubled as he described, yet had very little medical treatment for a psychiatric injury for which one might consider the sufferer would seek medical treatment.
17 The plaintiff then said as follows:
Q:“Okay. If you were of the view that you were having ongoing problems associated or caused by the robbery, you would have mentioned that to your doctor, wouldn’t you?---
A:No, because I thought I was coping with it, I didn’t want to feel like I was not coping.
Q:And you thought you were coping with it because you were working full-time at Hastings?---
A:Yes, I did.”[11]
[11]Transcript 34
18 The plaintiff’s cross-examination and re-examination consumed a little over one day. I consider that the plaintiff did his best to give informed answers when questioned, and did so in a manner which has left me in not much doubt that he was attempting to give a good account of himself and to give truthful answers. I accept his evidence of the impact upon him of the robbery.
Employment with Hastings
19 I next propose to analyse the medical opinions to determine whether the plaintiff was suffering from a psychiatric injury resulting from his employment with Hastings. The medical opinions contain histories of not only the plaintiff’s employment with Tooradin, but also with Hastings, and an allegation by a woman that when she was an employee working under the plaintiff, that he sexually molested her.
20 I propose to set out a summary of:
· the event which the plaintiff says resulted in the infliction of a psychiatric injury in his employment with Hastings,
· the allegation of sexual molestation; and
· the legal proceedings which flowed from that allegation.
21 Doing this will allow it to be properly understood how the medical practitioners have attacked the issue of which of the relevant incidents caused or contributed to which psychiatric injury.
22 In May 2012, the woman made an allegation that the plaintiff had sexually molested her. In his first affidavit, the plaintiff described what occurred as follows:
“In May 2012 a woman that I did not know came into the Club when I was working and screamed at the top of her voice that I had sexually assaulted her. Her allegations were a pack of nonsense, but even still it was a very unpleasant event that involved police and charges being laid. Properly, I was found not guilty of all charges.”[12]
[12]PCB 20
23 According to the allegations put to the plaintiff in the record of interview, the woman was allegedly molested by him in about 1994 when she was a young girl employed by him at a bakery known as The Grainery, in Somerville.
24 The plaintiff was contacted by investigating police in early 2012, informing him that they were in receipt of a complaint that he had sexually molested the young woman. He was subsequently interviewed by a formal record of interview on 4 July 2012. He was formally charged in May 2013. He was committed to stand trial in the County Court. His trial occurred in February 2015. He was acquitted. The financial cost of funding his trial was about $130,000.
25 Under cross-examination by both Tooradin and Hastings, the plaintiff agreed that the emotional stress he experienced from the time the young woman made the allegations added to his emotional problems.[13]
[13]Transcript 91
26 On 10 April 2013, the plaintiff was working at Tooradin when an armed hold-up occurred. In his first affidavit sworn 4 February 2016, he described what occurred as follows:
“On or about 10 April 2013 while I was working at the Hasting[s] Club an ‘all in’ brawl broke out in the bar. It was a footy day and the Club was crowded. There was a bunch of five or six drunk kids, being rowdy and annoying several of the members. The contracted Security Guard seemed not too interested and it fell to me to ask them to quite (sic) down. I was trembling and the kids’ bravado only grew. When they abused the Club President, a patron stepped in and a brawl erupted with fists, glasses and chairs flying. I cowered in the cash area shaking. It was all too much - the screams, yelling and violence - it brought back the familiar images of the robbery. My head spun and my body convulsed in waves of nausea.”[14]
[14]PCB 20
27 The plaintiff saw Dr Vukasin, general practitioner, on 15 April 2013. Subsequently, he was treated by Ms Mikkelson, psychologist, and Dr Kruk, psychiatrist. I will refer to their treatment of the plaintiff in some detail below.
28 In the plaintiff’s first affidavit, he referred to the impact on him of the psychiatric injury, but it has been set out in such a way that it leaves me with the impression that it is a description of the impact of both the psychiatric injury he suffered in his employment with Tooradin and Hastings rather than attributable only to his employment with Hastings.[15] In his second affidavit, he set out the impact on him of the psychiatric injury in the same way.[16]
[15]PCB 21-22
[16]PCB 23-28
The medical evidence
29 I next propose to review the psychiatric evidence chronologically by reference to when a particular psychiatrist examined him.
30 Dr Hayman, psychiatrist, was the first psychiatrist to examine the plaintiff. He did so on 7 May 2013. He obtained an adequate history of the robbery, the molestation and the brawl, and their impact on the plaintiff. He referred to each of those three incidents, but then, when he offered a diagnosis, he prefaced it by saying “both of these issues” which would usually denote a reference to two incidents, so it is unclear whether he was excluding the molestation as a contributor to his diagnosis.[17]
[17]Hastings DCB 9
31 Nevertheless, Dr Hayman considered that the brawl was the “last straw” in the development of an Adjustment Disorder with Depressed and Anxious Mood. When he was asked the specific question, whether the medical condition he diagnosed was a new condition or an aggravation of a pre-existing condition, he offered the following opinion:
“(a) As per the discussion above, he was developing anxiety symptoms in the preceding period. This had been for at least for the last year. However, the final precipitant was the episode on 10 April 2013.
(b)He had low-grade symptoms that had been emerging particularly in the last year. The final precipitant was the events of 10 April 2013.
(c)As aforementioned, there was the prior armed robbery eight year[s] ago and the episode where the woman turned up to his workplace accusing him of prior sexual molestation on 24 May 2012.”[18]
[18]Hastings DCB 10
32 Dr Hayman re-examined the plaintiff on 23 August 2013. He again addressed the robbery and the molestation, referring to the brawl as “the last straw”. He referred to the brawl as having occurred in the background of a range of other issues which were upsetting to the plaintiff but which had not frankly developed into a clear psychiatric disorder prior.[19]
[19]Hastings DCB 16
33 The next psychiatrist to examine the plaintiff was Dr Chong. He examined the plaintiff on 4 April 2014. He obtained an adequate history of the robbery, the molestation and the brawl, and their impact on the plaintiff. He considered that the plaintiff had probably suffered a Post-Traumatic Stress Disorder (“PTSD”) following the armed robbery. He considered that the brawl resulted in the plaintiff suffering overwhelming anxiety with paranoid fears, distress, hypervigilance, panic, morbid worrying, impaired sleep and PTSD symptoms. Additionally, he considered that the plaintiff was suffering from Depressed Mood, anhedonia, fatigue, weight loss, insomnia, psycho motor agitation, diminished concentration and suicidal ideations. His precise diagnosis was that of a Generalised Anxiety Disorder with Panic, PTSD, and a Major Depressive Disorder, moderately severe, without psychotic features.
34 Dr Chong was specifically asked for the aetiology of the diagnoses. He considered that specifically, they were the robbery, the brawl and the “police charge” brought against the plaintiff.[20]
[20]Hastings DCB 29
35 The next psychiatrist to examine the plaintiff was Dr Jager. He examined the plaintiff on 15 January 2015, 17 June 2015 and 6 September 2016. He obtained an adequate history of the brawl, and only a fleeting history of the armed robbery and the molestation when he first examined the plaintiff. He considered that the plaintiff had suffered a chronic PTSD and Adjustment Disorder with Anxiety. He referred to the plaintiff being hypervigilant prior to the brawl which he did not believe reached the threshold for a diagnosis of a mental disorder.[21]
[21]Hastings DCB 38-39
36 Following his second examination of the plaintiff, Dr Jager considered that the plaintiff had suffered a Chronic PTSD and a Major Depressive Disorder with Anxiety. He considered that the Chronic PTSD was caused by the plaintiff’s employment with Hastings. He also considered that the Adjustment Disorder with Anxiety had deteriorated and had become a Major Depressive Disorder with Anxiety caused by criminal proceedings arising out of the allegations of molestation.[22]
[22]Hastings DCB 44
37 Following his third examination of the plaintiff, Dr Jager provided a report dated 14 September 2016. Hastings objected to the plaintiff’s application to tender that report. The basis for the objection was said to be explained by an email exchange between Dr Jager and a case manager of Gallagher Bassett Services Pty Ltd, which is the claims agent relevant to this proceeding. The claims agent informed Dr Jager that it had received a report dated 14 September 2016, followed by a report dated 22 September 2016. He was asked to explain why that occurred. Dr Jager simply informed the claims agent that the report dated 14 September 2016 was the incorrect report; it asked the claims agent to delete it from its system.[23]
[23]Exhibit Hastings 5
38 I propose to summarise the report dated 14 September 2016 in any event, and then I will determine what I am to make of all of this.
39 In the report dated 14 September 2016, there is a marked departure from Dr Jager’s previously expressed opinion. He considered that the plaintiff had suffered a Chronic PTSD and a Major Depressive Disorder. He considered that the PTSD is still related to the claimed injury, that is, the psychiatric injury inflicted by Hastings.
40 In Dr Jager’s last report dated 22 September 2016, there is a marked departure from his last stated opinion. He considered that the plaintiff had vestigial symptoms of PTSD and a Major Depressive Disorder. He considered that the treatment provided to the plaintiff was inadequate to bring about a remission in the plaintiff’s symptoms. He considered that if the plaintiff’s treatment ceased, that there would be a further deterioration in his psychiatric condition.
41 Dr Jager considered that the PTSD was caused by the plaintiff’s employment with Hastings, and the Major Depressive Disorder was caused by the allegations of molestation. He understood that the plaintiff’s wife was suffering from a psychiatric condition. He considered that her situation was maintaining the Major Depressive Disorder.
42 In answer to some specific questions, Dr Jager considered that the whole of the plaintiff’s Major Depressive Disorder was caused by non-work related factors which I assume are the allegations of molestation and the plaintiff’s wife’s psychiatric condition.
43 Hastings submitted that I should ignore Dr Jager’s report dated 14 September 2016 altogether, and accept the bald explanation that Dr Jager forwarded an incorrect report to the claims agent. A comparison between the two reports demonstrates that the reports up until the subheading of “Summary and Diagnosis” and “Opinion” are the same. The difference is, the answers to the same questions are recapitulated in each of those reports.
44 The absence of something more than the bald statement in the email exchange should have been provided, because it otherwise leaves me in a position where I do not know what to make of two reports which are at such odds. It is difficult to understand how a professional man with such extensive qualifications and experience could make an error of this kind. It is suggestive of incompetence of a high degree. In any event, I am not prepared to say much more about Dr Jager, but I am prepared to say that I will not place any weight on his opinions for reasons which I think are obvious.
45 The next psychiatrist to examine the plaintiff was Dr Strauss. He examined the plaintiff on 1 July 2015, which means he is the next psychiatrist in line after Dr Jager first examined the plaintiff. He obtained an adequate history of the robbery, the molestation and the brawl, and their impact on the plaintiff. He considered that the plaintiff had not suffered a PTSD, but a major depressive illness with a Generalised Anxiety Disorder. He considered that the plaintiff’s psychiatric problems began with the robbery. It would appear that he considered that the robbery, the molestation and the brawl contributed to his psychiatric injury; however, he considered that the plaintiff’s employment with Hastings was the more significant contributor. He apportioned contribution at 20 per cent for Tooradin, 40 per cent for Hastings and 40 per cent for the molestation.[24]
[24]PCB 55-56
46 The next psychiatrist to examine the plaintiff was Associate Professor Paoletti. He first examined the plaintiff on 14 October 2016. He obtained an adequate history of the robbery, the molestation and the brawl, and their impact on the plaintiff. He considered that the plaintiff had suffered a PTSD, Panic Disorder and an Unspecified Depressive Disorder with features of Major Depression. He considered that the plaintiff’s employment with Tooradin and Hastings were significant contributing factors to those conditions, and he considered that the molestation was a temporary stressor. In arriving at the latter conclusion, he appears to have been influenced by the opinion of Dr Kruk.[25]
[25]PCB 79-80
47 Associate Professor Paoletti re-examined the plaintiff on 16 March 2017. He expressed the same opinion regarding a diagnosis of the plaintiff’s psychiatric injury. He considered that the robbery left the plaintiff very vulnerable and that the final straw which produced the psychiatric injury was the brawl. He repeated his opinion that the molestation was a temporary stressor.[26]
[26]PCB 89-90
48 The next psychiatrist to examine the plaintiff was Dr Entwisle. He examined the plaintiff on 20 March 2017. He obtained an adequate history of the robbery, the molestation and the brawl, and their impact on the plaintiff. He considered that at the time of the brawl, the plaintiff had already developed symptoms of PTSD resulting from his employment with Tooradin. He considered that the plaintiff had suffered a Chronic PTSD and a major depressive illness. He considered that it was the robbery and the allegations of molestation that materially contributed to that diagnosis, but not the brawl. The robbery “served as an aggravating factor” of the pre-existing PTSD. At the end of his report, he added that the plaintiff’s failed application to run a Halloween business was also a contributor to his psychiatric injury.[27]
[27]Hastings DCB 63-64
49 I have left Dr Kruk’s opinion until last. Under cross-examination and re-examination, he explained the basis for his diagnosis of the plaintiff’s psychiatric injury and the contributors to it. I found his evidence to be compelling for reasons which I will state later, and it is evidence that I prefer over the opinions in the reports which I have just summarised.
50 The starting point is to summarise Dr Kruk’s reports. The plaintiff was referred to him by Dr Vukasin in July 2013. The combination of his reports, his clinical notes and his oral evidence demonstrate that he had a very good understanding of the robbery, the molestation and the brawl. His first three reports dated 20 April 2015,[28] 10 November 2015[29] and 30 January 2016[30] summarise his working diagnosis of the plaintiff’s psychiatric injury and the treatment he provided the plaintiff.
[28]PCB 32-34
[29]PCB 35-37
[30]PCB 38-39
51 It was in Dr Kruk’s last report dated 9 June 2017 that he considered which of the robbery, molestation and brawl contributed to the plaintiff’s psychiatric injury. He considered that the robbery rendered the plaintiff “more vulnerable” and that the brawl “had a much more catastrophic effect on him”.[31] He noted that there were two other stressors in the plaintiff’s life, them being, the allegations of molestation and his dream of running a business from his home – he considered the latter to be a distraction – and were not having an impact upon him because he was acquitted of the charges brought against him, and he had come to terms with not being able to run a business from his home. He was no doubt asked to consider the contribution of the robbery and the brawl. He considered that the robbery contributed 20 per cent and the brawl contributed 80 per cent.
[31]PCB 43
52 Dr Kruk was cross-examined at some length by counsel for Tooradin and Hastings. Dr Kruk was aware that the plaintiff did not seek any significant medical treatment following the robbery.[32] He was aware that the plaintiff continued working full time with Hastings and part time with Tooradin. He was aware of the fact that the plaintiff was, among other things, hypervigilant.[33]
[32]Transcript 180-181
[33]Transcript 182
53 Dr Kruk accepted that the plaintiff probably did not satisfy the criteria for a diagnosis of PTSD following the robbery. He considered that the plaintiff’s presentation over that time between the robbery and the brawl was consistent with subclinical symptoms of a past trauma, but not consistent with an ongoing diagnosis of PTSD.[34]
[34]Transcript 183-184
54 Dr Kruk considered that the allegations of molestation were an unnecessary distraction from his consideration of the more chronic and pertinent issues which I took to be what the plaintiff suffered following the robbery and the brawl; however, he did accept that the allegations of molestation caused him a significant level of distress,[35] but he considered that the plaintiff experienced a sense of enormous relief from his acquittal from the charges of molestation.[36] He considered that the allegations of sexual molestation would have contributed to both the plaintiff’s anxiety and depression.[37]
[35]Transcript 155-1 156, 157-158, 159 and 195
[36]Transcript 170 and 179
[37]Transcript 171
55 Dr Kruk considered that the plaintiff also suffered depressive symptoms. He said it was a matter of speculation to determine the extent to which the depressive symptoms were attributable to the robbery, the allegations of molestation and the brawl.[38] He also considered that if the robbery had not occurred, that the brawl was a sufficient stressor to trigger a PTSD. That, of course, has to be seen in the context of other evidence given by Dr Kruk in his principal report and orally, that the plaintiff was experiencing subclinical symptoms of a past trauma, they being, the robbery had sensitised him to the extent that another event like the brawl would result in him suffering a diagnosable PTSD.
[38]Transcript 187-188
Did the robbery result in a psychiatric Injury?
56 The evidence of the psychiatrists is not uniform in relation to whether the plaintiff suffered a psychiatric injury resulting from the brawl.
57 The medical opinions in that regard are:
· Dr Hayman appears to accept that the plaintiff was suffering from anxiety prior to the brawl, but had not frankly developed a clear psychiatric disorder.
· Dr Chong appears to accept that the plaintiff suffered PTSD resulting from the robbery.
· Dr Jager was of a similar opinion to Dr Hayman.
· Dr Strauss appears to accept that the plaintiff suffered a major depressive illness with a Generalised Anxiety Disorder resulting from the robbery.
· Associate Professor Paoletti appears to accept that both the robbery and the brawl resulted in the plaintiff suffering a PTSD, Panic Disorder and Unspecified Depressive Disorder with features of Major Depression.
· Dr Entwisle appears to accept that the plaintiff suffered PTSD and a major depressive illness resulting from the robbery in the allegations of molestation, with the brawl serving as an aggravating factor of the PTSD.
· Dr Kruk accepts that the plaintiff suffered subclinical symptoms of a past trauma, being the robbery, which was not consistent with an ongoing diagnosis of PTSD. He considered that the plaintiff subsequently suffered PTSD and depressive symptoms resulting from the brawl.
58 I prefer the evidence of Dr Kruk over the evidence of the other psychiatrists. There are many reasons why I have done so. Firstly, he has treated the plaintiff since 2013, and according to his clinical notes,[39] he has seen the plaintiff regularly. His clinical notes are descriptive of the plaintiff’s circumstances demonstrating that Dr Kruk understood all of the factors which were playing a part in the production of his psychiatric injury.
[39]Hastings Exhibit, Hastings 3
59 Secondly, Tooradin and Hastings cross-examined him extensively, relevant to diagnosis, and the contribution of the robbery, the allegations of sexual molestation and the brawl, and the psychiatric condition suffered by the plaintiff’s wife and his disappointment in a planning process relevant to a business he attempted to set up. His evidence about these matters was well considered, thoughtful and well informed through a sound grasp of the relevant facts.
60 Therefore, I accept that the robbery resulted in the plaintiff suffering subclinical symptoms of trauma which were somewhat consistent with a diagnosis of PTSD, but not consistent clinically for that diagnosis to be made with certainty. The subclinical symptoms were of sufficient gravity that it rendered the plaintiff more vulnerable to further trauma, such as the brawl. The brawl then had a much more catastrophic effect on him than it would have, had the plaintiff not been sensitised by the robbery.
An aggravation
61 The thesis raised by the plaintiff is that the robbery resulted in at least subclinical symptoms of past trauma and perhaps PTSD. Based upon the evidence of Dr Kruk, that state needed another event to occur for a more significant PTSD to declare itself and yield consequences consistent with serious injury.
62 Furthermore, that when the PTSD declared itself amounts to a serious injury, and the additional trauma of the brawl itself resulted in PTSD. The upshot of this is that the employment with Tooradin and Hastings both contributed to the PTSD and the consequences contended for by the plaintiff, therefore, both caused the serious injury contended for by the plaintiff.
63 Tooradin and Hastings submitted that it is theoretically possible for a plaintiff to establish that two different employers can contribute to the one injury, and that the consequences of the impairment resulting from that one injury make both liable for causing a serious injury; however, in this case, I am not convinced that the facts support the submission made by the plaintiff.
64 By analogy, it is common enough to see in serious injury applications put on the basis that a worker has suffered degenerative changes in the spine which have been aggravated by an incident resulting in the previously quiescent degenerative changes becoming symptomatic. There is no prior injury, but a prior medical condition. The application is then advanced on the basis that it is an aggravation case requiring the plaintiff discharge the onus borne as enunciated in Petkovski v Galletti.[40]
[40][1994] 1VR 436
65 In the plaintiff’s case, and if I accept only the evidence of Dr Kruk, then there was no prior injury, but a medical condition[41] which, if aggravated, would result in a compensable injury. That prior medical condition, of course, is the subclinical symptoms of past trauma. Dr Kruk apportioned liability between the robbery and the brawl which, of itself, is consistent with the brawl resulting in an aggravation of the prior medical condition.
[41]I have used the term “medical condition” as a general term to describe the subclinical symptoms of past trauma to distinguish it from a diagnosable injury
What injury and by what means?
66 Whether what resulted from the robbery is consistent with the opinion of Dr Kruk or consistent with the opinion of other psychiatrists that he did suffer a PTSD, among other psychiatric conditions, what is clear is that the plaintiff had practically no medical treatment. He maintained his employment with Hastings up until the impact of the brawl which broke him, and with Tooradin part time up to the end of the financial year in 2003. There is no doubt that he carried some sensitisation or vulnerability, for example being affected by noise, affected when he saw people wearing beanies and having some concern about accessibility to knives.
67 If the plaintiff’s application were based only on the production of PTSD resulting from his employment with Tooradin, then it would be destined to fail. It does not bear the hallmarks of what one would consider to be consequences which are severe.
68 The position, however, following the brawl is in stark contrast and is consistent with the consequences of the brawl aggravating the prior medical condition with consequences which are severe.
69 The consequences which occur to me to be consistent with being severe are:
· The plaintiff’s confidence is shot, which I take to mean that he has a very low level of confidence.
· He suffers panic attacks which have resulted in a heavy tight feeling in his chest. When they occur, his heart rate increases and he feels a sense of intense worry.
· He is often tearful, and becomes so when he recalls the trauma, which I assume is both the robbery and the brawl.
· He has difficulty sleeping.
· He has difficulty focusing.
· He feels anxious and on edge much of the time. When he is anxious, he develops a shaking tremor.
· He has flashbacks to both the robbery and the brawl.
· He does not go out much anymore. He tends to remain at home. He is hypervigilant and has a feeling of insecurity when at home, resulting in him ensuring that the doors are locked and kitchen knives are put into lower drawers. He also lacks energy and drive, which sees him staying at home most of the time.
· He finds being in crowds frightening.
· He does not trust people.
· He is fearful of confrontation, feels easily intimidated and vulnerable much of the time.
· He feels a sense of guilt because of his inability to return to work and because of his lifestyle. He experiences a sense of hopelessness, uselessness and worthlessness.
· His circle of friends has diminished.
· Watching television where criminal activity and violence is depicted affects him terribly.
· There are a number of pleasurable activities which he no longer engages in, such as fishing.
· His own difficulties have imposed additional strain on his relationship with his wife. His libido is reduced.[42]
[42]PCB 21-22 and 24-28
70 The plaintiff has had a significant amount of medical treatment since the brawl. He saw Dr Vukasin, general practitioner, on 15 April 2013 after the brawl. At that first consultation, he was given a reasonable understanding of the robbery, the allegations of molestation and the brawl. Importantly, Dr Vukasin recorded the following history:
“Having panic attacks almost daily, involves hyperventilating, coughing, sweating. Diarrhoea, constant over the last 2 years, sometimes well formed. No blood.
Works 5-6 days per week, always works on the weekends.
Restless sleep, waking up a lot, difficult to fall back asleep. Poor concentration, often ruminating.
Appetite down, has lost some weight according to his wife.
No social life, doesn’t want to be around other people. Feels intimidated.”[43]
[43]PCB 45
71 Dr Vukasin diagnosed the plaintiff as suffering from PTSD and Anxiety. He prescribed the plaintiff Sertraline, 50 milligrams, on 18 April 2013.[44] He referred the plaintiff to Ms Mikkelson, psychologist. He prepared a mental health care plan.[45] He later referred the plaintiff to Dr Kruk.
[44]It is used to treat a number of psychiatric disorders including depression and PTSD
[45]PCB 46
72 Dr Kruk first treated the plaintiff on 3 August 2013 and last treated him on 1 June 2017.[46] My understanding is that the treatment is ongoing. Dr Kruk is prescribing the plaintiff a raft of medication. At present, that medication is Seroquel, 25 milligrams (quetiapine), Inderal, 40 milligrams and Lexapro, 20 milligrams.[47] Seroquel is prescribed to treat PTSD, anxiety and insomnia. Inderal is prescribed to control blood pressure and to control sympathetic peripheral arousal, sweating, tremor, palpitations and other symptoms of anxiety and traumatisation. Lexapro is prescribed to treat depression.[48]
[46]Exhibit Hastings 3
[47]Exhibit Hastings 3
[48]Transcript 200
73 I have read Dr Kruk’s clinical notes and the transcript of his evidence. As I have already remarked, I prefer his evidence over that of the other examining psychiatrists.
The allegations of molestation
74 Tooradin and Hastings submitted that there are a number of intervening events which have contributed to the plaintiff’s PTSD and Depression. The one which consumed the most attention through cross-examination was the impact on the plaintiff of the allegations of sexual molestation. I do not need to repeat the fact that the plaintiff was contacted by the police, then interviewed, then charged, then subjected to a committal hearing, and then subjected to the listing processes of the County Court and then a trial, at which time he was acquitted in February 2016. On the face of it, awaiting his fate through the trial process would have been stressful.
75 The plaintiff candidly admitted that the allegations of molestation and the trial process were stressful, and under cross-examination, Dr Kruk said that in his opinion, that was so; however, the fact that the plaintiff conceded that he was adversely affected by the allegations of molestation, it does not, and cannot, follow that the fact of being the subject of such allegations resulted in him suffering a psychiatric problem.
76 Furthermore, Dr Kruk not only considered that the allegations of sexual molestation were an unnecessary distraction from what he describes as the more chronic and pertinent issues which he had to deal with,[49] he did not accept that there was a significant decline in the plaintiff’s functioning[50] despite his opinion that those allegations would have contributed to both his anxiety and his depression.[51] I should add at this point that Dr Kruk described the allegations of sexual molestation as giving rise to psychological issues which he left to Ms Mikkelson to provide psychological counselling. I infer from that answer, that there were two levels at which Dr Kruk understood the plaintiff needed to be treated – one was the psychiatric level which included the PTSD and the Depression, and the other, non-psychiatric, which could be dealt with through psychological counselling.[52]
[49]Transcript 155 and 195
[50]Transcript 159
[51]Transcript 171 and 187-188
[52]Transcript 172-173
77 In any event, I accept his evidence that the allegations of molestation did not materially contribute to the PTSD and the Depression.[53] I also accept his evidence that the plaintiff experienced a sense of enormous relief after he was acquitted. I accept his evidence that upon analysing the robbery, the allegations of molestation and the brawl, that it occurred to him that the onset of Depression occurred in 2013. When he referred to “2013”, I understood from the preceding questions in re-examination that he meant a reference to the brawl.[54]
[53]Transcript 179
[54]Transcript 196-197
The mental state of the Plaintiff’s wife
78 The next issue is the plaintiff’s wife and her deteriorating mental health. The evidence about this is rather sparse. What is disclosed in the evidence is that the plaintiff’s wife was herself the subject of molestation which recurred in her thinking after the plaintiff was charged with molestation. It would appear that her mental state deteriorated. It was not my impression that the plaintiff conceded that he was in some material sense affected by her mental state.[55] The references to his wife’s mental state as a contributor to the PTSD and the Depression are rather fleeting, and I am not persuaded that there is an articulation of what her condition was and what it became, how it affected her, and how it is said to have affected him, except that it was something which he and his wife had to deal with at a particular point in time.
[55]Transcript 44
Pain and suffering consequences
79 Both Tooradin and Hastings submitted that whatever conclusions I reach regarding the plaintiff’s psychiatric condition and which employer is responsible for it, that when the consequences are considered, that they cannot meet the statutory test of seriousness to the extent of being severe. I disagree.
80 The plaintiff gave an account of the consequences following the brawl, which I accept. There were a number of aspects of the plaintiff’s life in general which he has retained which Tooradin and Hastings concentrated upon as the demonstration that the consequences contended for by the plaintiff do not meet the statutory test. I do not propose to deal with them in any particular order.
81 The plaintiff admitted in his first affidavit that he has ventured from his home to go shopping. Under cross-examination, the activities in which he has involved himself are said to militate against a conclusion that the consequences contended for the by the plaintiff meet the statutory test:
· The plaintiff does leave his home to go shopping to places like Bunnings, the Frankston Shopping Centre the Mower Superstore, a Masters hardware store and to St Vincent’s charity shop.[56]
[56]Transcript 28, 53 and 111-112
· The plaintiff and his wife built a house in the style of a castle. They had in mind to develop a theme park where they would hold Halloween functions which is what they did up until two years ago.
· The Halloween functions involved somewhere between 300 and 400 people, mostly children with a parent. The plaintiff would dress up in Halloween style. The functions were mostly conducted by his wife and her family. He would spend most of his time inside his home.
· The plaintiff made props consistent with the castle he and his wife had built and the Halloween style business which they ran.[57]
· The plaintiff applied for planning permission to conduct a theme style business on his property which was described in some planning documents as a haunted house. His planning application was refused. He applied to VCAT to overturn the refusal. He prepared the relevant documents for the appeal and appeared before a planning member of that tribunal. The appeal failed. The planning documents are contained in Hastings Court Book.[58]
[57]Transcript 51-54 and 109
[58]Hastings 120-127 and Transcript 109-110
82 I will repeat the findings I have made so far which are of significance before I deal finally with the evidence of the plaintiff relevant to whether the pain and suffering consequences and the loss of earning capacity consequences for which he contends are severe.
83 I am satisfied on the balance of probabilities:
· That the brawl resulted in an aggravation of the pre-existing medical condition resulting in a Major PTSD and the onset of Depression.
· On the evidence of Dr Kruk, the brawl has resulted in the additional consequences caused by the aggravation injury for the aggravation resulting from the brawl to qualify as severe, and therefore, a serious injury.
· That neither the allegations of molestation nor the psychiatric illness of the player’s wife are material in the sense of contribution to the PTSD and the onset of Depression.
84 These conclusions are based upon a rejection of the Tooradin and Hastings’ submissions that what the plaintiff concedes he is capable of doing on a day-to-day basis and his business interests at his home do not satisfy me that they are inconsistent with my conclusion that the pain and suffering consequences meet the statutory test of seriousness.
Loss of earning capacity consequences
85 I accept the plaintiff’s evidence that he is very limited in his ability to leave his home. What movements he has made from his home are modest. He is having treatment at the hands of Dr Kruk, and it is clear that he has been prescribed a raft of medication to treat the PTSD and the Depression.
86 I accept Dr Kruk’s opinion over that of all of the other examining psychiatrists. In concise terms, he was of the following opinion:
“I also have reservations about Mr Scapicchio’s fitness for work as commented by Dr Entwisle in his report. It is not unusual for people to get excited about running a business from home but the concept of making a significant income from a seasonal Halloween display reflect Mr Scapicchio’s dream like quality rather than a viable self-employment option. One of the reasons for why he wanted to run a business from home is that he avoids social contacts away from home, which is the result of the 2013 attack at work.
He has experienced significant, long term, unremitting symptoms of PTSD and I would approach the issue of his future fitness for work with caution. Considering his illness, his age and inability to return to managerial roles I am of the opinion that his condition is now stable and he is unlikely to have a successful return to paid employment in the foreseeable future.”[59]
[59]PCB 43-44
87 I do not have much doubt that the PTSD and the Depression operate to limit the plaintiff in a very significant way, both in terms of his general life and his prospects of ever returning to gainful employment. It might be said that I have concentrated rather too much on the opinions of Dr Kruk, but there is a sound reason for having done so. Whilst the other psychiatrists obtained a sufficient history from the plaintiff, it does not bear any comparison with the extensive history obtained by the plaintiff of the robbery, the allegations of molestation and the brawl.
88 Furthermore, the substance of his evidence dealt with a whole range of issues in an extensive way, and significantly more extensively than the other psychiatrists. In the end, I was deeply impressed by his knowledge of the plaintiff and the rational and sensible manner in which he described the nature and extent of the PTSD and the Depression and how he associated those psychiatric conditions to Hastings. Additionally, I was equally impressed by his opinions relevant to whether the consequences in terms of pain and suffering and loss of earning capacity meet the relevant statutory test of seriousness.
89 There is one last matter I must deal with. No report was obtained from Ms Mickelson. Her clinical notes were subpoenaed. The parties had access to those clinical notes. No application was made by any party to tender her clinical notes in whole or in part. Hastings submitted that I should draw the adverse inference referred to in Jones v Dunkel.[60] There is no doubt that Ms Mickelson is in the camp of the plaintiff. There is no explanation why a report was not obtained from her. I cannot speculate what she might have said had a report and obtained from her. I can in these circumstances conclude that her opinion may not have been of any assistance to the plaintiff. I may then draw an adverse inference against the plaintiff, and more comfortably accept evidence relied upon by the defendants. I have made a very short summary of the content of the principal in Jones v Dunkel[61] which I understood to be consistent with the submission made by Hastings.
[60](1959) 101 CLR 289
[61]Ibid
90 I have a number of difficulties in understanding how the submission is actually being put. Firstly, the parties had access to Ms Mickelson’s clinical notes, so that Hastings situation is not the same as the classic circumstance of the application of the principle, for example, a passenger in a motor vehicle who is not called to give evidence. Secondly, even if I treat the submission strictly based upon the principle then there is another difficulty with it, and that is, there is a very significant body of medical material dealing with the contributors to the PTSD and depression which has allowed me to identify the competing opinions and the basis for those competing opinions. Thirdly, I accept the evidence of Dr Kruk that he was dealing with the psychiatric issues affecting the plaintiff and Ms Mickelson was dealing with the psychological issues. Fourthly, and perhaps most importantly, in order to make an effective submission of this kind it is not simply a matter of pointing to the absence of a witness, but to what the judge is to make of the absence of that witness in the context of the other evidence. If the judge is then to draw an adverse inference and more comfortably accept other evidence, then it must be incumbent upon Hastings to point to which evidence I should accept and the effect of it. If it was that I should accept the evidence of psychiatrists whose evidence was inconsistent with Dr Kruk, then I reject that out of hand. The absence of Ms Mickelson cannot amount to a rejection of all of the other evidence relied upon by the plaintiff. It cannot displace the opinions of Dr Kruk which I have found to be impressive and persuasive for reasons which I have set out adequately above.
91 It is for all of the reasons which I have outlined above through my extensive analysis of all of the evidence that I have concluded that the plaintiff has discharged the relevant onus in satisfying me that his pain and suffering consequences and loss of earning capacity consequences are serious when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorder and may fairly be described as being more than serious to the extent of being severe.
92 Therefore, I will grant the plaintiff the leave that he seeks.
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