Sheppard v VWA
[2021] VCC 472
•30 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00270
| JAMES STUART SHEPPARD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2021 | |
DATE OF ORAL JUDGMENT: | 23 April 2021 | |
CASE MAY BE CITED AS: | Sheppard v VWA | |
REVISED TRANSCRIPT OF JUDGMENT: | 30 April 2021 | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 472 | |
REASONS FOR JUDGMENT
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Subject: SERIOUS INJURY APPLICATION
Catchwords: Psychiatric injury – pre-existing conditions
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Transport Accident Commission v Katanas (2017) 262 CLR 550; Grech v Orica Australia Pty Ltd (2006) 14 VR 602
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.D.B. Ingram QC, with Mr R. Paoletti | Arnold Thomas & Becker |
| For the Defendant | Ms A. Bannon | Russell Kennedy, Lawyers |
HIS HONOUR:
1 In this case, Mr Sheppard claims that he has sustained a serious injury. He claims that serious injury is a severe long-term mental injury within the meaning of s.325 paragraph (c) of the definition of serious injury of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). He alleges that this injury arose while at work as a prison officer. Particularly, his injury was said to occur by reason of a riot at the Metropolitan Remand Centre, Ravenhall on 30 June 2015.
2 The defendant accepts that Mr Sheppard sustained psychological injury at work on 30 June 2015. The defendant accepts that this psychological injury sustained at work continues to the present day. The defendant disputes that such continuing psychological injury, however, meets the relevant statutory threshold necessary to qualify as a serious injury. The defendant described the case before the court as a range case, that is can Mr Sheppard's current psychological condition be one that could be considered a severe mental disturbance or disorder.
The relevant background
3 Mr Sheppard was born on 15 November 1972. He attended the Echuca Secondary College until Year 10. Thereafter, he did a number of odd jobs. In 1991, he joined the army as a cook. During the time when he was serving, he sustained injury to both knees. Overall, he has had some ten operations to both knees and on his evidence has obtained a good result. He left the army in 1994. In 1998, he began working as a security officer for various companies. He continued in these roles until 2005.
4 On 29 August 2005, he began work as a prison officer. At around this time, he also began volunteering for the CFA as a volunteer fire-fighter. In February 2009, Mr Sheppard was involved in fighting bushfires in several life-threatening situations.[1] More significantly, in 2014, Mr Sheppard was engaged in CFA volunteer firefighting when he was again placed in serious life-threatening situations. He was referred through the CFA for psychological treatment. That psychologist, Mr Younger, saw Mr Sheppard some 16 times from 14 June 2014 until 26 June 2015. Reports from Mr Younger were sent back to Mr Sheppard's treating doctor about this time.[2] They initially record mood disorder, depression, anxiety disorder and post-traumatic stress disorder. There were also other significant psychological stressors acting on Mr Sheppard's mental state at this time. In cross-examination, Ms Bannon, counsel for the defendant, teased these matters out.
[1]Exhibit P1 – Plaintiff’s Court Book (“PCB”) 77
[2]PCB 31
5 In all, Mr Sheppard accepted, though his affidavit material did not fully disclose stress and anxiety in 2014 associated with the following factors - his traumatic laparoscopic procedure resulting in days in ICU, his diabetes, work stressors when a prisoner cut his throat in front of Mr Sheppard, anger with his son resulting in him striking his son forcefully so that police and DHS were called, the birth of twins on 21 November 2014, and financial strain generally on the family.
6 Mr Sheppard tried to trace most of the psychological effects back to the fire in February 2014, but a fair appraisal of the material from Mr Younger and Dr Iqbal at that time[3] I find shows that there were significant other initiators of Mr Sheppard's psychological injuries at this stage. In any event, Mr Sheppard continued under the care of Mr Younger. Very significantly, he maintained a good treatment relationship with Mr Sheppard during 2015. Mr Younger reported to Mr Sheppard's treating doctor that Mr Sheppard had effectively managed his stress levels and was able to prevent the re-emergence of depressive symptoms and/or anxiety symptoms.
[3]Exhibit D1 – Defendant’s Court Book (“DCB”) 65
7 A DASS inventory in mid-2015 was consistent with this, and stands as good data to support the clinical assessment of Mr Younger.[4] Mr Younger then discharged Mr Sheppard from his care in June 2015. At this stage, it is uncontroverted, and I find, that Mr Sheppard was on no psychotropic medication, was discharged from the care of his psychologist, and was able to work in his usual occupation. Any knee symptoms and associated stressors had dissipated to this extent. He had some issues with erectile dysfunction but this was managed on oral tablets, being Viagra and Cialis at this time.
[4]PCB 38
The riot
8 On 30 June 2015, Mr Sheppard was on duty at the MRC when a riot broke out. Various parts of the MRC complex were set alight, and there were several altercations between prison rioters and Mr Sheppard. He remained on scene for nearly 24 hours during the riot.[5] At various times, he feared for his life as rioting prisoners threatened to kill officers such as himself.[6] In his affidavit sworn 9 July 2019,[7] he deposes to not seeking medical assistance, however, by August 2015 he noticed he was losing interest in his life and taking time off work.[8]
[5]PCB 15
[6]PCB 57
[7]PCB 8
[8]PCB 8
9 His GP referred him to the Anna Medical Centre for psychological treatment. After the initial session, he did not return; however, in March 2016 he ceased work at MRC and returned to treatment on a more consistent basis.[9] First, that was with Ms Swinburne, and then Ms Burnett. Initially, the treatment was fortnightly and then monthly. While undergoing this treatment he also started with the Heidelberg Repatriation Hospital trauma recovery centre under psychiatrists there, but particularly Dr Hayward, in March 2017.
[9]Transcript (“T”) 38-39
10 He was trialled on venlafaxine, an antidepressant. He was diagnosed with post-traumatic stress disorder and major depressive disorder. He remained under the care of the psychiatric team as an outpatient until September 2018. Tellingly, he was trialled off the venlafaxine with a very poor result. He was recommenced on it at a significantly increased dose. This is significant in my opinion because it demonstrates the necessity for Mr Sheppard to have medication in order to cope with and manage his psychological symptoms arising from the riot. This is in contrast to his pre-MRC riot condition.
11 At the time of his discharge, Dr Hayward notes that his condition had improved but that he was subject to relapse and needed psychological counselling as a part of his management and treatment. Thereafter, he came under the care of Dr Sleeman, a psychologist who continues to see him to this day on a monthly to six-weekly basis.
12 In respect of work, he has returned to full-time work including overtime after completing at Certificate IV in Health Care. He is now employed as a patient transport officer with Wilson Medic One.[10] To conclude the relevant chronology, he threatened suicide after his wife left him in May 2020. He drank too much and was then presented to the Echuca Hospital emergency department. He had a course of outpatient treatment there.
[10] PCB 12
13 Mr Sheppard's claim is put in the alternative. First, that he sustained psychological injury as a result of the riot that meets the definition of being a serious injury. In the alternative, he argues that he sustained an aggravation of his extant psychological injuries as a result of the riot that meets the definition of being a serious injury when regard is had to the test set out in Petkovski v Galletti [1994] 1 VR 436.
Analysis: Frank injury or aggravation injury
14 In assessing Mr Sheppard's first argument, I find as set out above that immediately prior to the riot he had mild depression with normal anxiety and stress levels - see the DASS inventory referred to above. Such was controlled without the need for counselling or medication. However, up to that point, he had been subjected to numerous stressful events, some of a life-threatening nature. The opinion of Dr Weissman is that he had at that time a chronic PTSD and chronic recurrent major depressive disorder with anxious distress. Neither the current treating psychologist, Dr Sleeman, or historically Dr Hayward comment on his psychiatric diagnosis immediately prior to the riots. When looked at carefully, Mr Younger's report of 26 June 2015[11] is really commenting only upon the improved symptomology of Mr Sheppard at that time. This is not inconsistent with Mr Weissman's opinion.[12] See for example Mr Weissman's recounting of Mr Younger's notes.[13]
[11]PCB 37
[12]See for example Mr Weissman's recounting of Mr Younger's notes at PCB 77 at paragraph 76
[13]PCB 77 at paragraph 76.
15 Given this, I accept Mr Weissman's opinion as to Mr Sheppard's psychological condition immediately prior to the riot. I note no reliance was placed on Mr Jager's report, and I put it on one side in this regard.
16 Attention then turns to the psychological injury said to be caused by the riot. As a result of the riot, I accept that as at the date of the hearing, Mr Sheppard suffers from PTSD and chronic major depressive disorder. These conditions are partly contributed to by the riot and partly from pre-existing factors.[14] Dr Sleeman's view is different and seems not to apportion the PTSD and chronic major depressive disorder as Dr Weissman has done, but to attribute it solely to the riot. I prefer Dr Weissman's opinion, given his full access to the medical notes of Mr Younger that he was tasked specifically with examining the pre and post-riot psychological condition.
[14]See Mr Weissman at PCB 79
17 However, the issue of exactly what label is given to the diagnosable aggravated condition is of limited use. I find the riot caused an aggravation of Mr Sheppard's post-traumatic stress disorder and major depressive disorder. What is just as important in this case are the consequences that flow from the aggravated injury caused by the riot - see Humphries v Poljak [1992] 2 VR 129, particularly the judgments of their Honours Crocket and Southwell, approved in relation to mental injury in Mobilio v Balliotis [1998] 3 VR 833 at 846. It is to be borne in mind that in assessing the consequences of a mental injury, there may be some overlap with the symptoms of that injury - see the High Court's decision in Transport Accident Commission v Katanas (2017) 262 CLR 550 at paragraph 29.
Consequences of the aggravated injury
18 Here, the defendant argued that the nature and symptoms of the aggravated injury and its consequences were not severe either for Mr Sheppard or when assessed objectively with comparable cases.[15] To support this argument, the defendant relied on several factors - that Mr Sheppard had retrained, worked full-time and consistently did overtime; that he had successfully repartnered and enjoyed a good relationship with Ms Almiron; third, that he continues to have social and family relationships such that he can go out to sporting events or to dinners. In particular, they pointed to the fact that he could go out regularly to dinner with his partner; fourthly, that he continued to enjoy social pursuits such as photography and motorbike riding. It was also pointed out that there had been significant improvement in his symptoms such that Dr Weissman currently describes them as being mild to moderate.
[15]Transport Accident Commission v Katanas (2017) 262 CLR 550 [6]
19 The starting point in the analysis that I have to perform is Mr Sheppard himself. He was called to give evidence and be cross-examined. I accept him as a witness of truth. He deposed in his first affidavit sworn on 9 July 2019 of ongoing daily depression, stress and anxiety - see paragraph 29. He deposed to feeling very uncomfortable in environments such as the city, or shopping centres and pubs. He gave an example of becoming extremely anxious at a rugby game. This highlights the daily and everyday impact his condition has. He deposed to stressful nightmares once per month and flashbacks of a few per week of prisoners in the riot attacking him. He often feels worthless, and while he accepted in cross-examination that his tiredness may be age-related, he maintained his mental state made it harder to do shift work as he had in the past. In part, this led to him giving up his Diploma of Paramedical Science.
20 In his work, he is often confronted by memories of his prison work, and this triggers his stress and anxiety. He simply tries to persevere for his sake and his family's sake.[16] To cope with his ongoing condition, he has required ongoing treatment with Mirtazapine and Effexor as well as treatment by Dr Sleeman. All evidence is that this treatment regime is necessary for the foreseeable future.
[16]PCB 13
21 I find the above set of consequences to have arisen as a result of the riot. I consider that they will continue for the foreseeable future.
22 In addition, Mr Sheppard alleges that either as a side-effect of his psychotropic medication or his psychological injuries since the riot, he has experienced a worsening of his erectile dysfunction. He had problems in this regard prior to the riot dealt with by the use of Viagra and Cialis; however, subsequent to the riot, he has been placed on Caverject, an intra-penile injection. He argues this is a significant consequence both in that his erectile dysfunction has worsened and the treatment for it become more extreme.
23 There is no evidence to explain the pathophysiological link of Mr Sheppard's psychotropic medication and his erectile dysfunction.[17] Alternatively, Mr Sheppard argues that there is a temporal connection linking the Caverject to his psychological injury sustained in the riot. I do not accept this argument. There is no evidence of when or in what circumstances the Caverject began from his doctors. While I accept the evidence that Cialis and Viagra stopped being effective, it is entirely unclear why. On this basis, I do not accept that the need for Caverject arose by reason of the psychiatric injury resulting from the riot.
[17]See letter from Dr Hamblin dated 19 December 2014 at PCB 25.
24 As to the suicide attempt in May 2020, both parties submit that the principles in Grech v Orica Australia Pty Ltd (2006) 14 VR 602 at paragraph 58 apply where there are a multiplicity of causative factors of an event. The defendant argues the plaintiff cannot discharge his onus that the suicide attempt resulted from or was materially contributed to by the injury the subject of the application.[18] I reject that submission. Mr Sheppard accepted in cross-examination that the suicide attempt had multiple causes.[19] Dr Weissman referred to it as an acute situation or reaction. However, the evidence of Dr Sleeman makes the point that by reason of his work-related PTSD and major depressive disorder he remains particularly prone to such extreme episodes when confronted with stress. Implicitly, such a reaction was not likely prior to the riot. In this way, the riot has resulted in a substantial weakening of his ability to cope with such stressors. This is so even with medication and supportive counselling. I find therefore the suicide attempt was a consequence of the psychological injury sustained in the riot.
[18]See Exhibit D2 – The defendant's submissions at paragraph 8
[19]T44, L28
25 I find the following factors support the grant of a serious injury certificate overall in Mr Sheppard's favour: First, the need for continuous daily medication, Mirtazapine and Effexor. This assists with moderating depression and aids sleep. This has been his treatment regime for many years and will continue for the future.
26 Second, the need for ongoing psychological treatment with Dr Sleeman at four to six-weekly intervals. She opines that such treatment, while moving into a maintenance phase, is needed to guard against at relapse at best, and at worst needed to treat inevitable flare-ups.[20]
[20]PCB 45
27 I reject the plaintiff's contention that by themselves the medication and counselling regime put the plaintiff “across the line” of having a serious injury. To accept that contention runs contrary to the ratio in TAC v Katanas[21]. What is clear is that the two-stage test as established in Humphries v Poljak[22] must be applied. I concur with the defendant's submission on this point.
[21](2017) 262 CLR 550
[22][1992] 2 VR 129
28 Third, Mr Sheppard continues to experience low mood, fatigue, agitation and irritability. This occurs occasionally and can last several days to a week.[23]
[23]PCB 44
29 Fourth, Mr Sheppard remains prone to flare-ups of his condition. This can be triggered by simple things. He gave an example of being at the rugby with his brother when he became extremely anxious.[24] His partner, Ms Almiron, gave poignant evidence about attending a movie at Crown Casino with Mr Sheppard. Afterward, he became so distressed by the crowds that he broke down crying and they had to talk in the car park for one and a-half hours before he could go on.[25]
[24]PCB 10 at paragraph 32
[25]PCB 95 at paragraph 11
30 Overall, her evidence of his low moods, stress and anxiety, and social impediments was consistent with Mr Sheppard's and I accept her evidence shows that he is struggling with his condition on a daily basis. Flare-ups as evidenced by the suicide attempt have very significant consequences.
31 Fifth, he has had to give up his work as a prison officer, which he did for over ten years. While he has retrained and works full-time and more, he says it is often a struggle. This is consistent with his reporting to Dr Sleeman. He says he does not want to wallow in his condition.[26] This stoicism in confronting his daily battle should not be held against him. So too his ability to ride his motorbike and do photography should be seen in this context.
[26]PCB 13 at paragraph 50
32 Sixthly, he regularly experiences nightmares and flashbacks to the prison rioters breaking down fences and yelling. This happens randomly and can be triggered by a variety of stressors. IME examinations, for example, or aggressive males. The frequency and random nature of the onset of these symptoms some six years after the riot are significant, in my opinion.
33 Seventhly, while Dr Weissman considers his symptoms are mild to moderate, the assessment called for requires the consequences of the injury to be considered subjectively for Mr Sheppard in the first instance. When that is done, it can be seen that the injury caused by the riot interferes with Mr Sheppard's work, social and intimate life. It requires ongoing medication and counselling. It has left him vulnerable and prone to very severe relapses. When those consequences are assessed objectively within the spectrum of comparable cases I find they meet the definition of being severe.
34 In those circumstances I will grant Mr Sheppard a serious injury certificate.
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