Smith v State of Victoria

[2009] VCC 527

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT

CIVIL DIVISION

Case No. CI-08-01385

NEIL JAMES SMITH	Plaintiff
v
THE STATE OF VICTORIA	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Ballarat
DATE OF HEARING:	16 and 17 April 2009
DATE OF JUDGMENT:	27 April 2009
CASE MAY BE CITED AS:	Smith v State of Victoria
MEDIUM NEUTRAL CITATION:	[2009] VCC 0527

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – application for leave pursuant to s.134AB(16)(b) – psychiatric impairment – pain and suffering only

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Jordan SC and	Saines Lucas
Mr M Nightingale
For the Defendant	Mr P Scanlon QC and	Herbert Geer
Mr I Gourlay
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 18 March 2002 (“the said date”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. A claim for loss of earning capacity was withdrawn at the start of the hearing when counsel for the plaintiff conceded the plaintiff could not establish the requisite statutory loss.

3          The relevant body function in this case is permanent severe mental or permanent severe behavioural disorder pursuant to Section 134AB(37)(c).

4          The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. The plaintiff also relied upon an affidavit sworn by his wife Sally Smith on 22 November 2007 and an affidavit sworn by his friend Robert Hallam on 18 October 2007.

Outline of s.134AB

(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;

(ii)        The impairment of the body function must be permanent;

(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities.

(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering when judged by comparison with other cases in the range of possible impairments, which may be fairly described at the date of the hearing as being “at least very considerable” and “more than significant” or “marked”;

(v)        I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;

(vii)      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

The Plaintiff’s Evidence

5          The plaintiff is aged fifty-two, having been born on 14 November 1956. He is married with six daughters, the youngest of whom is in Year 7.

6          The plaintiff was educated to Form 5 and upon leaving school joined the Victoria Police Force (“the Force”) and worked initially in Melbourne for about fifteen years. The plaintiff subsequently worked at Hopetoun, a two-officer station for ten years, and in March 2000, he was transferred to a one man station at Woomelang (“the station”).

7          Prior to the said date, the plaintiff had experienced two particularly upsetting incidents. When the plaintiff was stationed at Hopetoun in April 1998, his friend, Brendan Phelan, died. The plaintiff was referred for psychological counselling after Mr Phelan’s death. The plaintiff attended a psychologist on one occasion and also spoke to the psychologist by phone a couple of times. The plaintiff had no further treatment and he did not require any time off work at that time.

8          In March 1999, the plaintiff attended the scene of a car accident in which his friend Nigel Sehache was killed. The plaintiff did not require any treatment nor did he take time off work at that time.

9          Prior to the said date, despite the deaths of his friends, the plaintiff was functioning pretty well. He was a shire counsellor and he coached football umpires in the district. He was the president of the basketball association and he was on the board of St Joseph’s School. The plaintiff was also working without restriction, medication or treatment.

10        Woomelang is a town of two hundred people in the Mallee. Life as a policeman was lonely and solitary. The plaintiff had limited contact with anybody during the day. He did patrol work and was expected also to do a few random breath tests around town.

11        The station was one of three in an area covering thousands of square miles. Hopetoun was the nearest major station where there was a sergeant and two officers.

12        The plaintiff always went to bed knowing the phone could ring at any time and that he was on his own with no guidance and support. He felt isolated.

13        In cross examination the plaintiff agreed that he was happy working at the station before the incident.

14        On the said date whilst on operational police duties, the plaintiff received a call to attend the cot death of an eleven-week old baby girl, (“the baby”) a daughter of one of his close friends (“the incident”). He had to drive 40 kilometres to the baby’s home and had trouble keeping on the road. He was extremely emotionally upset, bursting into tears on entering the home, seeing the baby’s mother walking around with the deceased baby in her arms. The plaintiff then attended the morgue and he was taken by a friend later that day to her home where she tried to comfort him.

15        The plaintiff has not worked as a policeman since. Prior to the incident he had earlier arranged two rostered days off but when he was required to go back to work he called in sick. He saw the doctor who had attended after the baby’s death.

16        When the plaintiff attended the baby’s funeral, he was approached by his doctor who suggested he see a psychologist at Swan Hill. On the psychologist’s advice the plaintiff left Woomelang and he went to live with some relatives in Melbourne for a month. However during the first week he was away, he was asked by his wife who was still in Woomelang to return home as there was a domestic argument at the station which was attached to their home.

17        The plaintiff saw Lynn Baudinet Johnson, psychologist, initially for four sessions and then fortnightly until the end of 2002, when he was referred to David Johnson a psychologist in Bendigo, whom he initially saw weekly then monthly until March 2004.

18        In cross examination, the plaintiff was asked about seeing Dr Vissenga, police medical officer, in late October 2002 and early 2003. The plaintiff said he was not progressing very well at that stage. He agreed that after this time he had made some progress. He was sleeping better than he had been but he was still restless and anxious. The farm work he was then doing kept him occupied but he did not agree it made him very happy. He was working as he needed to find work as he had a wife and six children to support.

19        The plaintiff was in receipt of weekly payments of compensation after the incident until March 2004.

20        The plaintiff was discharged from the Force in March 2004 as medically unfit. He loved his job and losing it was devastating to him. He felt like he had been a failure. In his view, there is no way he could return to life as a policeman. After the incident he could not tolerate any reference to the Force in his home and he got his wife to throw out all items related to his work.

21        On the advice of his psychologist, the plaintiff started doing some unpaid work on a local property about nine weeks after the incident. He worked odd days doing fencing and other farm jobs. The plaintiff then worked full time for twelve months between 2004 and 2005 on a wheat and sheep property which also had a piggery. He agreed that after a couple of months he had the capacity to do full time farm work. He enjoyed the work and felt better when he was doing it.

22        The plaintiff agreed in cross examination that the only work he could not do at that time was to return to the Force and as he later found out, he could not cope with office work.

23        In February 2005, the plaintiff commenced work as a program manager at the Adult Education Centre (“the Centre”) in Woomelang working about 32 hours a week. He had previously done some work at the Centre whilst he was on the local Council. In May 2006, the plaintiff started to have sleep problems. He was anxious and nervous and he had difficulty communicating with clients.

24        Whilst the work at the Centre was neither demanding nor stimulating, the plaintiff found that during 2007 he was no longer sleeping. He was constantly perspiring and he found work at the Centre was terribly stressful – “his brain could not cope with the financial management”. The Centre was seriously under resourced. There was not enough work to support adequate funding. On the advice of Dr Ahmed, his general practitioner, the plaintiff stopped working at the Centre in mid 2006.

25        In late 2007, the plaintiff commenced work as a trainee cameraman with a film company, responsible for filming all Victorian country race meetings. He is required to travel extensively throughout the state. This level of travel resulted in the plaintiff suffering a relapse of his condition in about August 2008 as a result of which he had ten weeks off work. As a consequence changes were made to his roster.

26        The plaintiff still has to have time away from home the amount of which varies depending upon the location of the race meeting. His days are often long and occasionally he is away overnight. He drives himself to the races or on a longer trip meets up with fellow workers at a central location and travels to the races with them. At the race course, in addition to his work duties the plaintiff has a bet and socialises with racing people.

27        The plaintiff copes with the camera work better than the job at the Centre as it involves little administrative work. It is far less stressful and he can do his own thing. He intends to continue in this job until he retires. He is “as happy in the job as he will get.”

28        The plaintiff is presently paid approximately $55,000 a year. When he was retired from the Force in March 2004, he was earning $65,000 a year. If he was still a policeman the plaintiff would be presently earning $75,000 as well as being provided with a house. Since leaving the Force he has bought a house and is frustrated by his lower level of income.

29        The plaintiff is anxious and agitated most of the time and he has trouble sleeping. He has mood swings and gets depressed and emotional very easily. His thoughts “raise a bit and he gets all hot and sweaty.” He becomes angry and irritable and startles easily. He has problems with his memory and concentration. He has nightmares. He suffers from sweats and hot flushes. Most of the time he wakes up in the middle of the night in a lather of sweat.

30        The plaintiff described his condition as fluctuating. He does not “crash” as much as he did in 2002. He is able to “get back up and stay on a level.” He has never got back to how he was feeling and functioning before the incident. He denied that he is now more affected by Brendan Phelan’s death than by the incident

31        The plaintiff’s relationship with his wife has suffered as a result of his illness. Whilst the plaintiff cannot help it, he does not have a lot to do with his children and his wife runs the house, paying all the bills and doing the gardening and shopping and looking after children.

32        The plaintiff’s present job requires him to work long hours. He is often not home until quite late and sometimes he has to stay away overnight. Because of his absences he has lost contact with his children and his relationship with his wife has been affected.

33        The plaintiff is no longer involved in local activities and he misses his community work. He resigned from the Council a year after the incident. It had become a chore to him and he had problems concentrating. Prior to the incident “a deal had been done” for the plaintiff to become mayor and he was next in line for the position. He would “not come close now” to being able to cope with the role.

34        The plaintiff ceased stopped helping out coaching football in 2006 when his friend Casey stopped coaching.

35        The plaintiff attends his daughters’ netball matches after which he has a drink with other parents. He also attends training if he is not working. Sometimes he attends the local football and on Thursday night he sometimes has a beer after football training.

36        In cross examination, the plaintiff agreed that he is very well liked and respected in the community.

37        When asked whether he was happy in relation to his level of social contact, he said “I don’t know about happiness – that’s as good as it gets - but it is ok”. He explained that he was not comfortable doing these activities.

38        Since the incident the plaintiff also resigned as President of the Basketball Association and from the board of St Joseph’s School. He is no longer involved at all around the town and has very little contact with his friends and he and his wife rarely go out.

39        The plaintiff agreed that because of his present workload he would be unable to participate in the sporting and community activities he previously enjoyed as he would not be able to attend training or meetings regularly. He also said that his psychological state would not allow him to have any involvement.

40        The plaintiff explained that one of the things psychologists had told him was that he had to be as active as he can – “If you sit around the house you go crazy. You have got to forge ahead”.

41        The plaintiff attends Dr Rahim and takes prescribed medication, mainly Avanza. The plaintiff was previously prescribed Zoloft. He recommenced seeing Lynne Baudinet Johnson in early 2009 and attends her monthly if possible.

42        The most serious effect of the plaintiff’s psychiatric condition has been having to end his career in the Force – his only career since leaving school and one he intended to continue until retirement. This has been an enormous loss for him as he enjoyed his life as a local policeman and would prefer to be still working in that job rather than in his present job. However, there is little work locally and if he worked full time on a farm he would only earn about $28,000 per year. His current job provides him with money to support his family.

43        The plaintiff misses the rapport he had with the community in his role as a policeman. It was a satisfying job. He does not get the same level of satisfaction from his present job. He no longer feels the prestige and importance he previously enjoyed. There is now nothing in his life that has replaced his previous position.

Lay Evidence

44        Sally Anne Smith married the plaintiff on 24 April 1987. She swore an affidavit on 22 November 2007.

45        The death of their friends prior to the incident upset the plaintiff for a while but after each death the plaintiff seemed to return to normal and continued to be heavily involved in social and community activities.

46        After they moved to the station, Mrs Smith discussed with the plaintiff that they felt isolated in terms of distance but also in the plaintiff’s work. She and the plaintiff felt that the station was a “forgotten station”.

47        After moving to the station, Mrs Smith noticed slight changes in the plaintiff, in that he did not seem to have the enthusiasm for living (at work and recreation) that he had prior to moving to the station.

48        The death of the baby on the said date was the “last straw”. The plaintiff was in a devastating mess, crying and distressed at the time. The plaintiff stayed home and cried over the next two days when he was rostered off. During that time the plaintiff was told by Sergeant Phil McClure to “snap out of it and return to work”.

49        Mrs Smith and the plaintiff attended the baby’s funeral at which Dr Vander Walt advised the plaintiff to see him for treatment.

50        The plaintiff was given a certificate for time off work, but again Sergeant McClure came round to their home and told the plaintiff “to get on with it”. At that time the plaintiff could not even bear looking at his uniform.

51        Arrangements were made for the plaintiff to take time off work and go to Melbourne. After three days away there was a domestic dispute out the front of the station where the wife was screaming for the plaintiff. The plaintiff returned home to help out. He was in a very bad state on his return; he had the sweats and stayed in bed most of the time.

52        Over the following years the plaintiff has managed to pull himself together but he is not the same man and he cannot have anything to do with the Force.

53        The plaintiff no longer does any community activities. He also seems to have changed. He does not want to accept responsibility for running the house and leaves it all to her. He is distant, depressed and isolated.

54        The plaintiff had to resign from the Centre because it was too stressful. His work as a cameraman is of less than half the income he would have been earning as a police officer. She is not confident the plaintiff will be able to continue with his job.

55        Mr Robert Hallam, a friend of the plaintiff’s, swore an affidavit on 18 October 2007. He described the plaintiff’s distressed reaction after the death of the baby when his wife took the plaintiff back to their house to try and comfort him.

56        Although he regarded the plaintiff as a good friend, they rarely see each other. Before the incident the plaintiff was happy-go-lucky, affable, extremely popular and very reliable.

57        The plaintiff was active in the local area and he would always be at social functions and events in the town and surrounding areas. He could not remember the last time he saw the plaintiff at a social event. The plaintiff appeared to Mr Hallam as someone who had gone into his shell. The plaintiff looked depressed and sad and was simply not the same man as he was prior to the incident.

58        In a memo dated 9 April 2002, District Inspector Smith advised the Victoria Police WorkCover Officer that having visited and maintained personal contact with the plaintiff, there was no doubt in his mind that whatever the plaintiff was suffering was due substantially to his duty at the cot death and his condition was legitimate.

59        By letter dated 25 February 2004, the Assistant Commissioner of Police was advised by the Mobility Services Branch that it was to be recommended on the information provided including a report from Dr Vissenga, that it was intended to recommend that the plaintiff be retired from the Force on the grounds of ill health.

60        The Assistant Commissioner advised the Mobility Services Branch by letter dated 9 March 2004 that the plaintiff’s retirement on medical grounds would be made effective from 22 March 2004.

61  

The Plaintiff’s Medical Evidence

62        In March 2002, the plaintiff was referred to Lynne Baudinet Johnson for psychological counselling under an Employee Assistance program. He attended during 2002. The plaintiff recommenced monthly treatment with her in early 2009.

63        In her view, the plaintiff cannot work in confined places or in situations that heighten his psychological condition. She considered the plaintiff’s Post- Traumatic Stress Disorder (“PTSD”) would remain in the foreseeable future. She did think that he would be able to return to the Force or carry out any duties that served to increase the intensity and frequency of his symptomology.

64        Following treatment by Lynne Baudinet Johnson, the plaintiff came under the care of another psychologist David Johnson in Bendigo whom he saw until March 2004.

65        In a report dated 6 November 2003, Mr Johnson diagnosed debilitating PTSD since the incident. At that time the plaintiff was engaged in intermittent counselling and relaxation training. He noted the plaintiff was incapable of returning to the Force but that he was capable of and had benefitted from performing manual work

66        The plaintiff was examined by Professor Paoletti, psychiatrist, at the request of his solicitors on 13 January 2004, and subsequently re-examined on 12 November 2008.

67        In Dr Paoletti’s opinion, the plaintiff suffered from PTSD and Major Depressive Disorder recurrent in partial remission. Dr Paoletti noted that although depressive symptoms were present in PTSD, the plaintiff had had symptoms of depression at a level that warranted a separate diagnosis.

68        Dr Paoletti agreed with previous examiners that the plaintiff had no capacity to return to his pre-injury duties or related duties in the Force. He noted the plaintiff had made a sterling effort to work in various capacities that came his way and that he was likely to have interruptions to his work with exacerbations of his disorder and/or depression to which he would remain vulnerable.

69        In Dr Paoletti’s view, the plaintiff may need to see a psychiatrist and/or clinical psychologist with any future exacerbation. He noted the plaintiff had apparently responded to Avanza better than previous anti-depressants but it had caused him to put on in excess of 10 kilograms, exposing him to a risk of obesity, thus he considered the plaintiff’s medication may need review and supervision by a psychiatrist for a while.

70        In May 2008, the plaintiff’s general practitioner Dr Rahim reported that the plaintiff’s prognosis was uncertain and depended to an extent on what future employment he was able to get. He considered that avoidance of any situation which caused the plaintiff stress would be recommended. At various times Dr Rahim prescribed Zoloft and Mogadon.

71        Dr Rahim noted that the plaintiff’s condition fluctuated throughout 2008. The plaintiff was assessed and referred to a psychologist for further management in the latter half of the year and was then sent to a psychiatrist for management.

72        Dr Rahim last reported in April 2009. He diagnosed the plaintiff’s condition had been confirmed as PTSD following the incident. He thought it highly likely this condition would remain for the foreseeable future depending on continued management. In his view, the plaintiff continued to remain unable to carry out police duties.

73        Dr Singh, psychiatrist, examined the plaintiff on 11 June 2008 and 31 July 2008 at Horsham Psychiatric Services. Dr Singh diagnosed a Major Depressive Disorder in the context of a post-traumatic stress reaction. He advised the plaintiff to commence Avanza, along with psycho-education. In July 2008 Dr Singh noted there was some reported improvement in anxiety, anger and sleep and that the plaintiff was back at work.

The Defendant’s Medical Evidence

74        Dr Vissenga examined the plaintiff on a number of occasions between October 2002 and February 2004.

75        On examination on 13 January 2003, he noted the plaintiff was not progressing very well. His dosage of Zoloft had recently been increased to 300mg without any improvement. The plaintiff was not enjoying life and his sleep remained significantly disturbed.

76        The plaintiff reported some improvement on examination in April 2003. He reported being very happy doing farm work and was taking a realistic view of his future options. Dr Vissenga noted that the plaintiff was probably permanently unfit for police work.

77        On examination in July 2003, the plaintiff reported, whilst helping on the farm, he was fit and well and symptom-free.

78        When last reviewed in February 2004, Dr Vissenga considered the plaintiff remained permanently unfit to return to any police duties. In his view, to do so would undoubtedly precipitate severe recurrence of the plaintiff’s symptoms.

79        The plaintiff was examined by Dr Dharwadkar, psychiatrist, in January 2004. The plaintiff gave him a history of the death of his friends and also the incident.

80        The plaintiff complained of night sweats, agitated periods when at home by himself and trouble sleeping, but said that he was good when doing farm work. He complained of disturbed memory and concentration and that his mood fluctuated quickly and he was anxious, angry and depressed. He had recurrent memories of the three deaths. At that time the plaintiff had changed what he had been involved in. He was still involved with the football club but before he was involved in a lot of activities and was a shire counsellor for the previous three years. He was still playing cricket for the local club.

81        On mental state examination, Dr Dharwadkar noted that the plaintiff appeared alert, his affect was anxious and there was no evidence of delusions or formal thought disorder. He told Dr Dharwadkar that he would never go back to any kind of police work and at that time he was doing paid work as a farm hand five days a week and would do that for a further twelve months and then see what to do.

82        Dr Dharwadkar diagnosed chronic PTSD. He thought the plaintiff’s incapacity for employment as a policeman was likely to be permanent but at that time the plaintiff had a capacity for full time suitable duties on the farm.

83        In Dr Dharwadkar’s view, the exposure to the critical incidents at work were the significant stressors, therefore employment was a significant contributing factor to the plaintiff’s psychiatric condition. Dr Dharwadkar did not consider the effects of the incident on the plaintiff separately from the effects of his friends’ deaths. He thought the plaintiff at that stage needed to continue his antidepressant medication. He noted non-work-related factors relevant to the claim were not identified.

84        For the purposes of his superannuation claim, the plaintiff was examined by Dr Chris Martin, consultant psychiatrist, in November 2003. Dr Martin noted that the anxiety and depression the plaintiff had experienced after his friends’ deaths had been suffered on a more consistent and ongoing basis since the incident.

85        Dr Martin believed it likely, with continued absence from the Force and stabilisation of his work situation, the plaintiff’s dysfunction was likely to gradually improve but it was likely to require a period of some years rather than weeks or months. He considered the plaintiff was likely to recover substantially over a period of years and that he was not capable of retraining at that stage but that in a year or so he may well be so capable. Dr Martin thought the plaintiff would be adversely affected if he returned to the Force.

86        The plaintiff was examined by Dr Walton, consultant psychiatrist, on 24 November 2003. In Dr Walton’s view, the severity of the plaintiff’s psychological dysfunction was moderate. His psychiatric condition had improved and that had been accompanied by the plaintiff substantially resuming his normal activities. Dr Walton considered there would be an adverse impact upon the plaintiff’s mental state were he to return to the Force.

87        Dr John King, psychiatrist, examined the plaintiff on 18 February 2005. At that time, he thought the plaintiff’s dysfunctions would slowly improve and eventually become near normal. However, if the plaintiff was exposed to traumatic situations or to situations where he felt very helpless, he thought that some regression in the plaintiff’s state was likely. He considered the plaintiff was suffering from essentially what was a stress reaction. In Dr King’s view, the plaintiff probably suffered from PTSD in the past and at the time of examination he suffered from adjustment disorder with anxious and depressed mood.

88        In Dr King’s view, the severity of the plaintiff’s dysfunctions was mild to moderate. However, if the plaintiff attempted a return to work with the Force, Dr King believed the severity would increase quite quickly and that further psychiatric breakdown and extended periods off work would be inevitable.

89        Dr Peter Smith, psychiatrist, examined the plaintiff on 18 February 2005. On examination he found the plaintiff’s affect was slightly under-reactive but generally appropriate and not unduly depressed. There was no evidence of psychotic thought content in the form of delusions or hallucinations. On a scale from zero to ten the plaintiff rated himself as five. Dr Smith considered the plaintiff’s dysfunction to be moderate. He thought it likely there would be partial recovery and that it was likely this would be slow with an incomplete degree of recovery of functioning. He considered the likely timescale for such recovery was in the order of one to two years.

90        He noted that the plaintiff’s residual symptoms were treatment resistant and that no further treatment would enable the plaintiff to return to the Force or any other form of work at that time.

91        Dr Edward Cole, psychiatrist, examined the plaintiff in July 2005. On examination, he noted the plaintiff was good humoured and responsive in conversation although there was evidence of underlying anxiety. He considered the plaintiff’s nervous disorder as one of a mild to moderate degree.

92        In Dr Cole’s view, the plaintiff was unlikely ever to be fit for normal duties and he could not see him returning to work in the Force in any capacity. He noted, however, the plaintiff had demonstrated a capacity to do manual and administrative work that was not stressful and did not place undue demands upon his limited powers of concentration.

93        Dr Cole diagnosed a Chronic Adjustment Disorder with mixed anxiety and depressed mood, plainly the result of the distressing experiences during the plaintiff’s work as a police officer. He thought the plaintiff was unlikely to substantially recover.

94        The defendant tendered notes of the plaintiff’s treatment at the Grampian’s Psychiatric Services in 2008.

95        On 29 May 2008, psychiatric nurse Kevin Newton noted on assessment of the plaintiff that there was no intellectual physical or cognitive impairment. There were no delusions or behavioural problems. The plaintiff’s judgment was not impaired and there was no drug or alcohol involvement. There was no past history of deliberate self-harm. There had been four to five weeks of suicidal thoughts with no plan. There was high anxiety.

96        The plaintiff had a depressed mood. He was seeking support; he was co- operative and he was able to participate in decisions. The risk was rated low to moderate.

97        On 2 June 2008, a further assessment was carried out by Kevin Newton. He noted at that time the plaintiff was not working and was socially withdrawn. There were no specific incidents with dependent children.

98        It was noted that when the plaintiff’s WorkCover claim was finished the plaintiff only saw a psychologist for short sessions and that he was generally managed by his general practitioner over the past six years. It was noted the plaintiff had trialled Zoloft in the past but found this to be sedative. Effexor had recently been increased to 150 milligrams.

99        It was noted that the plaintiff’s mood was depressed, tense, and anxious and his affect was reactive. His speech was clear and appropriate in rate and rhythm. There was no formal thought disorder. There were no delusions. The plaintiff reported three to four times a week thinking of suicide and having thoughts of crashing the car. He spoke about events that led to PTSD, also about his new job and the stress placed on relationships and family.

100       There were no abnormalities of perception. The plaintiff was intact cognitively and in relation to his judgment, and he had partial insight into his illness. His wife reported she was concerned because that was the worst she had seen the plaintiff. Mr Newton was of the view the plaintiff required education about PTSD.

101       On examination on 11 June 2008, the plaintiff told Dr Singh, psychiatrist at the Service that his depression had worsened over the past five to six months. He was more anxious than frustrated. He could not sleep and always felt anxious and sweaty and felt angrier.

102 On examination, Dr Singh noted the plaintiff was co-operative and

communicative; his affect was flat and depressed. Thinking was coherent and
there was no negative thought about life. His judgment was adequate.

103       Dr Singh diagnosed a Major Depressive Disorder and suggested treatment, reducing Effexor and commencing on Avanza, 30 milligrams, to be followed up with a treating clinician in the community and to provide psychological direction and monitor the risks.

104       On final examination on 31 July 2008, the plaintiff reported some improvement in his anxiety, anger and sleep. He was back to work and he told Dr Singh that he enjoyed footy last week. Dr Singh noted there was no depression or anxiety.

105       The plaintiff was examined by psychiatrist, Dr Diane Neill, in July 2008. At that time he was off work on sick leave because of depression.

106       Dr Neill noted that the plaintiff intended to resume working once better but that he would negotiate his shifts such that he did not have to travel Victoria-wide and have to spend so much time away from home.

107       The plaintiff advised Dr Neill that he gave away coaching and other community activities a year ago when he started with Sports Colour because of his rosters. He told her he was aware of the nature of the job when he took it. He told her the job meant being isolated all the time and “if you stuffed up, getting a kick in the arse.” He told her that he was not aware of difficulties with sleeping when working at the station.

108       The plaintiff told Dr Neill of the deaths of his fiends and about the incident. He told her his symptoms significantly improved after about eighteen months but did not resolve. He told her he began to get depressed again during the course of his employment at the Centre. She noted the plaintiff had attended his general practitioner with a range of depressive symptoms on 6 December 2006.

109       She noted that the plaintiff’s brother died in July 2007 and that his general practitioner had resumed antidepressant medication in December 2006 without any beneficial effect. The plaintiff told her his depression had worsened over the last four to five months and that he was worried about his physical health and about the prospect of having cancer. He was angry, irritable and depressed and avoided people.

110       The plaintiff told her that he felt cut off from his family and home when he was working with the film company. His antidepressant dosage was increased and he was referred to Dr Singh.

111       The plaintiff told Dr Neill that presently he felt very depressed but not as bad as in 2002. He was taking Avanza and his sleep had improved marginally. He was able to more ably manage his rage. He felt no one understood him. He had not considered taking up his former interests because he could not take the pressure of coaching. He had bad dreams almost nightly of non- specific violent events. He had panic attacks. He was apprehensive when the phone rings.

112       Dr Neill recorded that the plaintiff told her he is more affected by the death of his mate in 1998 than by the incident- a situation the plaintiff denied in cross examination.

113       Dr Neill noted that the general practitioners’ records did not support the plaintiff becoming depressed again until the end of 2006, after having left work in 2002. In her view, there was considerable retrospective distortion by the plaintiff of the history of his condition because of his current depressed mood and his habitual denial. She noted the collateral information indicated that between early 2003 and late 2006, the plaintiff was consistently able to enjoy life and daily activities despite continuing mild PTSD.

114       In Dr Neill’s view, the plaintiff had developed a moderately severe depressive illness over the past year or two, worse in the last six months, and in the context of that depressive illness there had been some intensification of his chronic PTSD symptoms.

115       Dr Neill concluded the plaintiff had recurrence of Major Depressive Illness of moderate severity to which work and non-work factors were contributing. In her opinion, non-work factors were of predominant importance in this recurrence. There was also an aggravation of work-related chronic PTSD of mild severity.

116       She expected the plaintiff would continue to suffer from PTSD and would be vulnerable to aggravation or exacerbations in the setting of other adverse events, especially trauma, and with other intercurrent psychiatric or physical illness, including depression. She expected the PTSD would resolve when the plaintiff’s depressive disorder was adequately treated. She expected the recurrent Major Depressive Disorder would remit with appropriate treatments based on the course of the plaintiff’s previous episode in 2002 to 2003.

117       Dr Neill thought the plaintiff’s current condition had not arisen from the isolation at the station but agreed it had arisen from the incident and other circumstances, namely exposure to prior traumatic events before the incident which increased the plaintiff’s vulnerability to PTSD, prior personal events which the plaintiff had denied, family history increasing his vulnerability to the depressive disorder, terminal illness and death of his brother in July 2007 and marital strain which may have increased his vulnerability to psychiatric illness in the incident and had aggravated his PTSD.

118       In Dr Neill’s view, the extent of contribution of unrelated factors to the plaintiff’s recurrence of Major Depressive Disorder was major and the extent of the contribution of the incident to his chronic PTSD was significant.

119       In her view, the plaintiff was totally incapacitated for work due to his recurrent Major Depressive Disorder. Dr Neill considered the plaintiff permanently unable to work in his pre-injury duties and that he had a slightly reduced capacity for hours of work, or at least incapacity to work beyond a 38-hour week. The PTSD precluded him from doing policeman duties.

120       In her view, the plaintiff’s recurrent Major Depressive Disorder currently substantially diminished and restricted his enjoyment of life and daily activities. Dr Neill thought this was a temporary situation which would resolve when the plaintiff’s depression was adequately treated.

Findings

121       Whilst there was some cross examination of the plaintiff as to his psychiatric condition prior to the incident as a consequence of the deaths of his friends, this issue was not pursued further by counsel for the defendants.

122       I accept that at the time of the incident the plaintiff was functioning well psychiatrically. He was working full time and involved in a wide range of sporting and community activities. He had not required any psychological treatment for four years and then it was on only one occasion.

123       I accept that the plaintiff suffered a compensable injury in the incident.

124       I find that the incident has materially contributed to the plaintiff’s present condition and continues to do so.

125       I accept that the plaintiff has suffered and continues to suffer from chronic PTSD and a recurrent Major Depressive Disorder- a diagnosis made by his treating doctors and medico legal examiners Dr Paoletti and Dr Neill.

126       It is now over seven years since the incident. The plaintiff cannot expect any real improvement in his condition and he is vulnerable to further exacerbations – as shown in times of stress at the Centre and also in mid last year with his difficulties with work-related travelling. I accept that the plaintiff will be permanently vulnerable to the “dips” he has described.

127       I accept that the plaintiff’s psychiatric condition is likely to continue into the foreseeable future.

128       The issue for determination is therefore whether this impairment meets the test of “severe”.

129       As counsel for the plaintiff submitted most succinctly, if it is not accepted that the plaintiff’s inability to work in his chosen career as a policeman is a consequence to the plaintiff that is severe, the plaintiff’s application fails.

130       It was submitted by counsel for the defendant that loss of career is not enough to satisfy the statutory test. In particular, counsel for the defendant relied upon the remarks of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, that where a plaintiff was capable of returning to alternative employment, then unless there was some other evidence that he experienced significant pain or that he otherwise significantly suffered physically from the injury, then it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”.

131       Counsel for the defendant further submitted that the plaintiff has had little in the way of treatment. The plaintiff resumed work nine weeks after the incident in farm work he enjoyed. He now has a job with TVN that is not stressful and involves social contact. The plaintiff otherwise has a pretty good life with friends and family. It was submitted that the plaintiff was not dysfunctional, introverted or non communicative as one often sees in such applications pursuant to sub section (c).

132       Further, counsel for the defendant submitted that the plaintiff’s presentation before the court was of a man who was functioning well and that he only became emotional and teary when re examined about his family situation. Whilst it was conceded that the plaintiff is a “terrific bloke” and there were no issues as to his credibility, it was submitted his application must fail

133       The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.

134       Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

135       The plaintiff is clearly unable to return to his chosen career as a policeman, having been in the Force from the age of seventeen until he was discharged on medical grounds in March 2004.

136       There is consensus on the part of all the treating medical practitioners, psychologists and medico-legal examiners in this regard. There is also consensus as to the plaintiff’s inability to work in a stressful or confined environment such as his job at the Centre.

137 Whilst the plaintiff is working full time, I accept that he is fragile psychologically, as the major “dips” in 2006 and 2008 indicate. Whilst he is happy working at TVN and there is no pressure in the job, it is not his chosen career and he would much rather still be a policeman – a position in which he enjoyed prestige and standing in the community. His present job involves significant time away from home and places stress on his family relationships. Since the incident, the plaintiff has left much of the responsibility of running the household to his wife because he can no longer cope. The plaintiff works because he has to support his family. He would be unable to get work locally other than as a farm worker and then he would only earn $28,000 per year in that job working a 40-hour week.

138       Following the incident, the plaintiff initially required extensive counselling until 2004. He has required further treatment in the times when he has relapsed, including psychiatric treatment last year. He resumed counselling earlier this year and continues to see Miss Johnson monthly.

139       Since the incident, the plaintiff has been prescribed different antidepressant medication of varying dosages and he presently takes Avanza. The plaintiff has followed all treatment courses that have been suggested by his doctors.

140       I am not particularly troubled by what was submitted was a lack of evidence from Mr Johnson. He cannot really be described as the primary treater, having last treated the plaintiff over five years ago. In any event, there is some evidence from him as to the plaintiff’s condition in November 2003, five months before he ceased treating the plaintiff.

141       Further, the plaintiff’s progress since the incident has been well documented in the reports of examinations carried out for the purposes of his superannuation claim. Any optimism as to the plaintiff recovering significantly from the effects of the incident has proved ill founded given the two significant relapses and his continuing problems.

142       The plaintiff was not really challenged as to his level of symptoms. I accept that he feels anxious and agitated most of the time. He has trouble sleeping and he has nightmares. He experiences mood swings and occasionally he gets irritable and angry. He gets startled easily. His memory and concentration have been affected.

143       There was no surveillance or other evidence challenging the plaintiff’s level of complaint. His evidence is further supported by the affidavits from his wife and his friend Mr Hallam.

144       I do not accept that for an application to succeed pursuant to sub section (c), a plaintiff has to be dysfunctional and have effectively withdrawn from society. As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4 that he suspected:

“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

145       Whilst the plaintiff does socialise at the netball and football clubs and he interacts with people at the races, he does not get the level of enjoyment and satisfaction from these activities he experienced prior to the incident. He “enjoys them as much as he can”. He has decided that he has to get on with his life as he has been advised by his treaters, as he would be far worse if he stayed at home where he would go crazy.

146       Whilst he continues in these activities, because of his psychiatric problems, the plaintiff had to give up his community involvement which had him on track to be mayor and also involved membership of the board of his daughters’ school. I accept that at present the plaintiff could not cope with these roles and that there will be no change in this position in the foreseeable future.

147       I found the plaintiff to be an impressive, genuine witness who has tried to get on with his life in all respects. In the present case, the consequences of the incident include not only a forced change of career but also an inability to participate in community activities. Further, the plaintiff is vulnerable on a permanent basis to further relapses in times of stress and he has a continuing requirement for ongoing antidepressant medication to enable him to carry out his daily activities – consequences which I find to be severe.

148       Accordingly, I find the plaintiff has a serious injury in relation his psychiatric condition, and leave is granted to bring proceedings in relation to pain and suffering.

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